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THE JUDICATURE ACT 
 
 OP ONTARIO, 
 
 AND 
 
 
 THE CONSOLIDAl^ED R|^ES OF 
 
 PRACTICE AND PRO()mdfeE 
 
 OF THE . ifc 
 
 Supreme Court ^^^'^udicature 
 
 FOR ONTARIO, 
 
 WITH PRACTICAL NOTES. 
 
 BY 
 
 GEORGE SMITH HOLMESTED, 
 
 BarHster-at-Law ami Ueijistmr of the Chancerti DiHsinn of the 
 Hifih Court of J untie fi, 
 
 AMD 
 
 THOMAS LANGTON, M.A., LL.B., 
 
 one of Her MajesUfit Counnel. 
 
 TOaONTO: 
 
 CARSWELIj & CO., PUBLISHERS. 
 1890. 
 
U"^^ 
 
 LANGTON, in the office of the Mhiister of ABriculture. 
 
 
 PRINTUD BT 
 THOS. MOOBE & Co.. LAW PUINTI'.US 
 
 22 & 24 Adki.,aidk St. Bast, 
 
 TORONTO. 
 
PREFACE. 
 
 r)Y KEASON of the recent Consolidation of the Staiutes and 
 Bules relating to the practice of the Supreme Court of Judi- 
 cature the Editors have been enabled to combine their previous 
 independent labours in the field of the practice of the Courts, and 
 thus to make the third annotated edition of the Ontario Judicature 
 Act and Rules the most complete edition which has yet been 
 published in Canada. 
 
 It embraces not only the notes appended to the 2nd edition of 
 " Maclennan's Judicature Act " by Mr. Langton, so far as the 
 same continue applicable, but also the notes to the Common 
 Law Bules and Chancery Orders published by Mr. Holmested. 
 In the present volume therefore haj been embodied whatever has 
 been thought of value in those ^wo publications so far as they 
 illustrate The Judicature Act and Consolidated Rules in their 
 present form, besides a very considerable amount of new matter. 
 
 During the eight mouths which the work has been in course of 
 printing many new cases have been published, and the more 
 important of them, which could not be introduced into the tevt, 
 will be found in the table of addenda. 
 
 The table of cases has been carefully prepared under the 
 immediate supervision of the editors; and they have taken 
 special pains to make the Index as complete and exhaustive as 
 possible so that they hope it will be found to answer all reasonable 
 expectations. 
 
 M'. I 
 
^ 
 
 PREFACE. 
 
 No one, who has not undertaken a work of like magnitude, 
 will be able fairly to appreciate the immense amount of hard and 
 persistent labour which it involves. The Editors are not pre- 
 sump uous enough to suppose that their work is without a flaw ; 
 they are, however, conscious that they have endeavoured to make 
 it as free from defects as possible, and they commit it with some 
 confidence to the candid and liberal judgment of the profession. 
 
 V 
 
TABLE OF CONTENTS. 
 
 THE JUDICATURE ACT. 
 
 sections. 
 
 Short Title 1 
 
 Ikterprbtation 2 
 
 Constitution ok Scpremk Court 3-19 
 
 Supreme Court continued 3 
 
 Judges 3 
 
 Court of Appeal continued 4 
 
 Judges 5, 6 
 
 Judges mr.y hold Assizes, etc 8, 7 
 
 Divisional Courts 11 
 
 Quorum 10, 12 
 
 Judge whose decision appealed from not to sit 13 
 
 Judgment in absence of a Judge who heard cause 14, 15 
 
 Presiding Judge 16 
 
 Sittings 17 
 
 Precedence of Judges 7 
 
 Oath of Judges 18, 19 
 
 Jurisdiction ok High Court 20-42 
 
 Jurisdiction of Court of Appeal 43-51 
 
 Rules ok Law 52, 54 
 
 Notice to be given to Minister ok Justice and to Attorney- 
 General before any Act declared invalid 55 
 
 Sittings and distribution of business 56-64 
 
 Appeals 65-72 
 
 Limitation ot time for appealing 73-75 
 
 Trial and Procedure 76-84 
 
 Interest . ... 85-88 
 
 Sittings for Trials 89-95- 
 
 Trial ok Superior Court Cases in County Courts and of County 
 
 Court Cases in High Court 96-100' 
 
 Official Referees and Assessors 101-104 
 
 Rules ok Court 105-110 
 
 Opfickrs and Offices 111-156 
 
 County Courts and Judges 157 
 
 Transfer of Causes from County and Division Courts to High 
 
 Court 158. 
 
 Miscellaneous 1 59-163 
 
 J.A. A 
 
11 
 
 TABLE OF CONTENTS. 
 
 'Mile. 
 
 THE CONSOLIDATED RULES. 
 
 CHAPTEll I. 
 
 INTERPRETATION 
 
 1-6 
 
 CHAPTER 11. 
 OFFICERS AND OFFICES. 
 
 1. Office Hours, etc '. 7-10 
 
 2. CliEUK OK THE PkOCESS 11-16 
 
 3. Reoihtrabs, Local Reoistrahs, etc 17-21 
 
 4. Judgment Clerks 22 
 
 5. Clerk of Records and Writs 23-26 
 
 6. Marshals and Clerks of Assizk 26-29 
 
 7. Master in Chambers , .SO-83 
 
 8. Referees 34-40 
 
 9. Local Judoes 41-42 
 
 10. Master's Office 43-137 
 
 (i.) Oeneral Rulen . . . . ; 43-88 
 
 (ii.) Sales 89-115 
 
 (iii.) Receivcrx, Committeex, etc 110-123 
 
 (iv.) Foreclosure, Sale and Eetkmption 124-137 
 
 11. Local Masters 138 
 
 12. Accountant's Office 139-193 
 
 (i.) General Rulen 139-162 
 
 (ii.) Mode of Payinij into Court 163-171 
 
 (iii.) Payment out of Court, InveKtmetUs, etc 172-191 
 
 (iv.) Stop Orders 192-193 
 
 13. Taxing Officers . . ■. 194-197 
 
 14. Barristers and Solicitors 198-204 
 
 15. Shorthand Writers : 205, 206 
 
 16. EXPKUTS ..........; 207 
 
TABLE OF contents: 
 
 • • • 
 
 111 
 
 CHAPTER III. 
 SITTINGS OF THE COURTS. 
 
 RULES. 
 
 1. Court of Ai-PKAii 208, 2(M> 
 
 •2. HioH CouBT 210-228 
 
 (i.) Weekly Sitting* 210-212 
 
 (ii.) Sittingn for Triah 218 
 
 (iii.) Vacation Judf/es 214, 21(> 
 
 (iv.) Divisional Courts 216-228 
 
 CHAPTER IV. 
 ACTIONS— COMMENCEMENT OF ACTIONS, ETC. 
 
 1. FouM ANi> Commencement of Action 224-24!) 
 
 (i.) Writ of Simmons 224-237 
 
 (ii.) Renewal of Writ 238, 23{> 
 
 (iii.) Indorsement of Address 240-242 
 
 (iv.) Indorsement of Claim 243-249 
 
 '2. Disclosure by Solicitorb and Plaintiffs 250, 251 
 
 3. Service of Writ of Summons 252-274 
 
 (i.) Mode of Service 252-270 
 
 (a) Married Women, Infants, Lunatics 257-264 
 
 (b) Partners 265, 266 
 
 (c) Corporations 267-270 
 
 (ii.) Service out of Ontario 271-274 
 
 4. Appearance, etc 275-299 
 
 (i.) General Rules 275-287 
 
 (ii.) Partners 288-289 
 
 (iii.) Dotcer 290-292 
 
 (iv.) Recovery of Land 293-298 
 
 (v.) Limited Defence 299 
 
 5. Parties 300-339 
 
 (i.) Generally 300-334 
 
 (ii.) Guardians 835-339 
 
 6. Joinder of Causes of Action 840-34^ 
 
 7. Mortgage Actions 347-368 
 
 8. Crown Actions 364-367 
 
 CHAPTER V. 
 
 PLEADINGS. 
 
 1. Statement OF Claim 368-870 
 
 2. Defence and Gountbr-Claim 371-388 
 
 ■id 
 
IV 
 
 TABLE OF CONTENTS. 
 
 H. Dkmuhhkr 
 
 4. Clohk ok Pf,kai)in(ih 
 
 5. Pleauino Oknkrai.i.y 
 
 ft. Ihhitkh 
 
 7. Sthikinu out, Amkndino Pi,kaiiin<ih, ktc ... 
 
 8. Plkadino Mattebb AiUBiNd Pkndino Action 
 
 HTIiBH, 
 
 H84H»1 
 H92-»98 
 »04 419 
 420 
 421-483 
 484-440 
 
 CHAPTER VI. 
 
 MISCELLANEOUS PROCEEDINGS IN AN ACTION. 
 
 . 1. 
 
 2. 
 
 3. 
 
 4. 
 
 5. 
 
 6. 
 
 7. 
 
 8. 
 
 9. 
 10. 
 
 11. 
 12. 
 13. 
 
 Non-Compliance and Erroiih. 
 
 Amenbments 
 
 Paper, Notices, etc. . , 
 
 Copies op Papers, Forms . . . 
 
 Service of Papers 
 
 Transmission of Papers 
 
 Time 
 
 14. 
 15. 
 1«5. 
 17. 
 18. 
 19. 
 20. 
 
 Examination for Discovery 
 
 Pboduction and Inspection of Documents 
 
 Motions and Other Applications 
 
 (i.) Generally 
 
 (ii.) Applications in Chamherg 
 
 Inquiries and Accounts 
 
 Special Cases 
 
 Evidence Generally 
 
 (i.) Svbpcemtg 
 
 (ii.) Evidence at. Trials and References 
 
 (iii.) Evidence on Motions 
 
 (iv.) Commissions 
 
 (v.) Affidavits 
 
 (vi.) Admissions 
 
 Transmission of Interest pendente lite 
 
 Payment into Court 
 
 Discontinuance 
 
 Compounding Penal Actions 
 
 Dismissal of Actions 
 
 Transfer and Consolidation of Actions 
 
 Trial 
 
 (i.) General Rules 
 
 (ii.) High Court Cases in County Courts 
 
 (iii.) Vexatious Defences in Actions' to Recover Land 
 
 (iv.) Inspection of- Property 
 
 441-443 
 444-446 
 447-452 
 453-458 
 459-407 
 408-471 
 472-480 
 487-600 
 507-524 
 525-549 
 525-541 
 542-549 
 
 550-553 
 554-558 
 559-619 
 559-563 
 564-575 
 570-585 
 586-604 
 605-616 
 617-619 
 020-631 
 0.S2-640 
 041.642 
 643-645 
 646-t!48 
 049-652 
 653-703 
 053-689 
 690-697 
 098-700 
 701-703 
 
TABLE OF CONTENTS. 
 
 CHAPTER VII. 
 JUDGMENTS, MOTIONS FOR JUDGMENT, ETC. 
 
 4. 
 
 5. 
 
 6. 
 
 7. 
 
 8. 
 
 0. 
 10. 
 11. 
 12. 
 
 DKFAUtiT OV Al'PKAKANCK 
 
 (i.) (lenerullij 
 
 (ii.) Dower 
 
 (iii.) Itecoverij of Land 
 
 (iv.) Mortifitge ActioitM 
 
 DkFAULT or PliEAMNO 
 
 CONFKSHION OF ACTION 
 
 (i.) Genenillij . . . . 
 
 (ii.) Interim Alimony 
 
 LeAVK to SiftN JuDOMi NT 
 
 Application vou Account 
 
 Motion fok Juiximent 
 
 SETTIiEMENT OF .TnuOMENTH AND OrDEUH. 
 EnTKY of JriHlMENTS 
 
 Form of Judgments 
 
 Variation of Judomknts 
 
 Satisfaction 
 
 Motions Against Judgments 
 
 HULRH. 
 
 704-718 
 704-712 
 
 718 
 714-71« 
 717-718 
 71ft-72» 
 730-788 
 730-787 
 
 738 
 739-744 
 745-747 
 748-758 
 759-768 
 704-775 
 776-779 
 780-786 
 787,788 
 789-802 
 
 CHAPTER VIII. 
 
 APPEALS. 
 
 1. Appeals to Court of Appeal 803-845 
 
 (i.) Hiph Court Appeals 803-834 
 
 (ii.) County Court Appeals 835-845 
 
 2. Appeals from Chambers 84(5, 847 
 
 3. Appeals from Masters and Referees 848-850 
 
 4. Appeals from Taxation 851-854 
 
 5. Appeals to the Judicial Committee op the Privy Council 855-857 
 
 CHi^PTER IX. 
 ENFORCEMENT OF JUDGMENTS AND ORDERS. 
 
 1. Writs op Fi. Fa 858-877 
 
 2. Attachment and Sequestration 878-884 
 
 3. Issue and Form op Writ 885-898 
 
 4. Sale Under Writ 899-907 
 
 6. Return of Writ 908-924 
 
 6. Discharge op Execution Debtors 925 
 
 7. Attachment of Debts 926-948 
 
rtTJI 
 
 Tl 
 
 TABLB OF CONTENT^. 
 
 CHAPTER X. 
 
 PETITIONS OF RIGHT 
 
 RULES. 
 
 949-963 
 
 CHAPTER XI. 
 PROCEEDINGS WITHOUT WRIT. 
 
 1. Petitions 964 
 
 2. Administkation 965-9ft8 
 
 3. Partition 989-991 
 
 4. Propbuty of Infants 992-1004 
 
 5. Devolution of Estates 1005, 1006 
 
 6. Summary Inquiries into Fraudulent Conveyances 1007-1012 
 
 7. Quieting Titles 1013-1037 
 
 8. Controverted Municipal Elections 1038-1044 
 
 CHAPTER Xn. 
 EXTRAORDINARY REMEDIES. 
 
 1. Bailable Proceedings 1045-1097 
 
 (i.) Arrent 1045-1088 
 
 (ii.) Absconding Debtors 1089-1097 
 
 2. Replevin 1098-1111 
 
 3. Mandamus 1112-1129 
 
 (i.) In Actions 1112-1116 
 
 (ii.) On Motion 1117-1123 
 
 (iii.) Applications in Chambem 1124-1129 
 
 4. Injunctions 1130 
 
 5. Interim Preservation of Property 1131-1136 
 
 6. Prohibition 1137-1139 
 
 7. Certiorari 1140 
 
 8. Interpleader 1141-1169 
 
 (i.) Generally 1141-1161 
 
 (ii.) In County Courts 1162-1166 
 
 (iii.) By Bailees and Carriers 1167-1169 
 
 CHAPTER Xm. 
 
 COSTS. 
 
 1. General Rules 1170-1196 
 
 2. Taxation 1197-1231 
 
 3. Sheriff's Fees 1232-1241 
 
 4. Skcurity for Costs 1242-1252 
 
TABLE OF CONTENTS. VV 
 
 CHAPTER IV. 
 
 IIULES. 
 
 COUNTY COURTS 1253-1264 
 
 PAOE. 
 
 SCHEDULE OF RULES UNREPEALED 968 
 
 APPENDIX OF FORMS 955 
 
 TARIFF OF COSTS lOfiO 
 
 TARIFF OF DISBURSEMENTS 1090 
 
 TARIFF OF SHERIFFS' FEES 1100 
 
 TABLE OF RULES, ORDERS AND PARTS OF 
 
 STATUTES CONSOLIDATED 1107 
 
 RULES OF COURT AFFECTING THE COMING INTO 
 
 FORCE OF CONSOLIDATED RULES , 1137 
 
 INDEX 1139 
 
A. B., ir.mi, 
 A. V. B., 311. 
 A. B. &C., re. 
 A. B. & G. D.. 
 Abbott V. Aii'l 
 Abbr)tt V. Can; 
 Abbott V. Feai 
 Abbott V. Parf 
 Al)ell V. Hilts, 
 Abull V. Kirk, 
 Aball V. Learllc 
 Aboil V. Morris 
 Abell V. Parr, ] 
 Aljtill V. Weir, 
 Absrnethy v. U 
 Al))uloff V. Oi 
 
 420, 441. 
 
 Abraliall v. Bu( 
 
 Abrath v. N. E 
 
 .\brey v. Newir 
 
 Abud V. Riche.' 
 
 Acaster v. And 
 
 Acland v. Gaisf 
 
 Adair v. Wade, 
 
 Adair v. Yotuig 
 
 Adam Eyton, n 
 
 Adam v. Towns 
 
 Ad;ima V. Batle; 
 
 Adams v. Black 
 
 Adams v. Watsc 
 
 Adamson v. Ad 
 
 442, 59G, 075, 
 
 Adamson v. Grill 
 
 Aiiamson v. Tufl 
 
 Adnock v. Peter 
 
 Aderis v. Thrigli 
 
 i^tnalns. Co., r. 
 
 Agar V. Fairfax, 
 
 Agar Ellin, r^ fi.S, 
 
 J. A. 
 
TABLE OF CASES CITED. 
 
 A. B., »v. !>31, !m. 
 
 A. V. B., 311. 
 
 A. B. & C, re. 470. 
 
 A. B. & C. D.. !l2fl. 
 
 Aljbott V. Aii'lrews, 70,"). 
 
 Abbr)tt V. Canaia Central R'y Co., 421. 
 
 Abbott V. Feary, 050. 
 
 Abbott V. Pai-fitt, 384. 
 
 Al)«ll V. Hilts, 714. 
 
 Abuii V. Kirk, rm. 
 
 Abjll V. Loarlley, 585. 
 
 Al)f)ll V. Morrison, 12. 
 
 Aljell V. Parr, 152, 222, .563. 
 
 Abiill V. Weir, 770. 
 
 Abirnetliy v. Boddome, 050. 
 
 Alimloff V. Oppenheimer, 87, 33.5, 330, 
 
 420, 441. 
 Abrahall v. Budd. 16. 
 Abi-atU V. N. E. R'y Cd., 438. 
 .\brey v. Newman, 329. 
 Altud V. Riches, 714. 
 Acaster v. Ander.'ion, 760. 
 Acland v. Gaisford, 167. 
 Adair v. Wade, 84, 87. 
 Adair v. Young, 541, 672. 
 Adam Eyton, re, 6.56, 600. 
 Adam v. Townsend, 2f)7, 311. 
 Adams v. Batley, 483, 409. 
 Adams v. Blackwell, 877. 
 Adams v. Watson Mfg. Co., 357. 
 Adamson v. Adamson, 38, 87. 1.56, 178, 
 
 442, 606, 675, 726, 761. 
 Adamson v. CJill, 261. 
 AHamson v. Tuff, 41, 407, 409. 
 Adoock V. Peters, 271. 
 Aderis v. Thrigley, 438, 440. 
 .Etna Ins. Co., re 154, 905, 909. 
 Agar V. Fairfax, 770. 
 Aifftr Ellis, ri« 63. 66. 
 J. A. 
 
 Ager V. Blacklock, 1060. 
 
 Agnew V. McDowell, 53. 
 
 Agnew V. Pliinkett. 1081. 
 
 Ahrbecker v. Frost, 805, 897 
 
 Aikins v. Blain, 216. 
 
 Airey, re, Airey v. Bower, 674. 
 
 Airey v. Mitcliell, 167, 203, 228. 
 
 Aitchison v. Coombs, 163. 
 
 Aitcheson v. Mann, 583. 
 
 Aitken, re, 2.58. ► 
 
 Aitken v. Dunbar, 409. 
 
 Aitken v. Wilson, 14.5, 585. 
 
 Alohin V. Buffalo & L. H. R. Co., 467, 
 
 460, 561. 
 Alcock, ex p., 715. 
 
 Alcock. re, Prescott v. Prescott, 39.5. 
 Alden v. Boomer, 744. 
 Alderson v. CJloag, 240. 
 Aldwell V. Aldwell, 203. 
 Alexander v. Diamond, 484. 
 Alexander v. Gloucester, 021. 
 Alexander v. School Trustees, 1072, 1087, 
 
 1007. 
 Allan, re, 285, 201. 
 Allan, re, Pocfick v. Allan, 158, lvi5, 285, 
 
 760, 768. 
 Allan V. McTavish, 82, 229. 
 Allan V. O'Neal, 14. 
 Allan V. Pratt, 76. 
 Allan V. Pyiwr, 200. 
 Allen V. Ayres, 62. 
 Allen V. Globe, 943. 
 Allen V. Kennett, 382. 
 I Allen V. Lyon, 10. 
 I Allen V. Mathers, 589, 597, 651. 
 Allen V. Morris, 351. 
 Allen V. Parke, 347. 
 Allen V. Quebec Warehouse Co., 36. 
 Allen V. Richardson, 206. 
 
 It 
 
TABLE OF OASES CITED. 
 
 Allen V. Taylor, 554. 
 
 Allgood, Merrybeiit & Davlingtmi liy. Co., 
 
 217. 
 Allhusen v. Labouclu've, 493, 502. 
 Alliance Bank v. Brown, 22H. 
 Allison, re, 'Xi'i. 
 Allison V. I'^risby, 1(54 (lultla). 
 Allum V. Dickt'nsf)n, 79, 531. 
 Alpha Oil Co. v. Donnelly, 85(i. 
 Alsaurer v. CriHp, 309. 
 Alston V. TrolldiH', 7»>2. 
 Alven V. Bond, 197. 
 Ambroiae v. Kvclyn, 402, 404, .578, 579. 
 Ambrose Lake Tin & Cojjper Co., Taylor's 
 
 Case, 81. 
 Amor V. Rogers, 3.^9. 
 Ames V. Birkenlieiid Docks, 220, 742. 
 Anieuny v. Naliob Xa/.in of Bengal, G30. 
 Amon V. Bobbett, 89(i, 901. 
 Amos V. Chiulwick, 581, 582. 
 Amos V. Hern(? Bay, 319. 
 Amstell V. Lesser, 714. 
 Amthill, The. 59. 
 Anderson v. .\nderson, .539. 
 Anderson & Barber, /v, 87t>, 882, 887. 
 Anderson v. I?ank of British Columbia, 482, 
 
 500, 502, 50(i, 507, .508. 
 Anderson v. Dougall, 175, 771. 
 Anderson v. Paine, 331. 
 Anderson v. Stevenson, 223. 
 Anderson v. Strather, 554. 
 Anderson v. Thorpe, 1.55, 094. 
 Anderson v. Titnias, (i()2. 
 Anderson v. Towgood, .580. 
 Anderton v. Yates, 334. 
 Andrew v. Aitken, 409, 565. 
 Andrew v. White, 20. 
 Andrews rr, ((3, 338. 
 Andrews v. Barnes, 894. 
 Andrews v. Boliannon, (148, fi54. 
 Andrews v. City of London, 901, 903. 
 Andrews v. Maulson, 180. 
 Andrews v. Patriotic .A.ss., 643, 
 Andrews v. Read, 942. 
 Andrews v. Salmon, 341. 
 Andrews v. Salt, 15. 
 Andrews v. Stt^wart, 629, 662. 
 Andrews v. Stuart, 595. 
 Andrews v. Walton, 478. 
 Angel V. Smith, 220, 717, 719. 
 
 Angell V. Huddon, 1(K>. 
 Anglin v. Kingstcm, (>8(). 
 Anglo- African S. Co., re, 301. 
 Anglo-American Brush Co. v. Crouipton, 
 
 432. 
 Anglo-American v. Rowlin, 627, !I42. 
 Anglo-Frencli Co-operative Sckj., 710. 
 Anglo-Italian Bank v. Davies, 59, 60, 21(», 
 
 749. 
 Anglo-Italian Bank v. Wells, 629. 
 Anglo-Maltese, The, re, 470. 
 Anlaby v. Pi'setorius, 664. 
 Annis v. Wilson, 391. 
 Anon(4(4r. 61), 236. 
 Anon (1 Charl. Ch. Ca. 35), 284. 
 Anon (1 Charl. Ch. Ca. 38), 291. 
 Anon (1 Charl. Ch. Ca. 45), 282, 424. 
 Anon (1 Charl. Ch. Ca. 59), 3.56. 
 Amm (1 Charl. Cii. V,:\.. 73), 412. 
 Anon (W. N., 1875, 220), 282, 283. 
 Anon (W. N., 1876, 53), 282. 
 Anon (W. N., 1875, 202,), 284, 403. 
 Anon (4 .Jur. 858), 186. 
 Anon ((t (Jr. (i32), 15. 
 Anon (12 C. L. .T. 204), 25S. 
 Anon (W. N., 1876, 105), 290. 
 Anon (1 V. L. T. 730), 337. 
 Am.n (2 Charl. Ch. Ca. 25), .356, .".((l. 
 Anon (60 L. T. .Tour, (iii), 416. 
 Anon (W. X., 187(), 38), .56, 57. 
 Anstice v. Anstice, 431. 
 Ansley v. Breo, 534. 
 Anthony v. Halstead, (JOl. 
 Apollinaris v. Wils(m, 946. 
 Appleby v. Fr;. iklin, 449. 
 Applegarth v. (Jraliam, 853. 
 A))pleman v. Appleman, 413. 430. 
 Appleton, re, Barber v. Tebbitt, 174. 
 Appleton V. Chaml Town Paper Co,, 318. 
 Appleton V. Dwyer. 8.50. 
 Apthorpe v. Apthorpe, 745. 
 Arcedeckne, re, 760. 
 Arcedeckne, r<; Atkins v, Arcedeckne, 
 
 321, 
 ArchlK)l(l V. Building & Loan Ass., 220, .Wo, 
 Archer v. Severn, 161, 174, 175, 67(i, 7(>2, 
 
 724. 
 Ardagh v. Orchard, 391. 
 Ardagh v, Wilson, 235, 
 Arden, re, 911. 
 
TABLE OF 0A8EB CITED. 
 
 XI 
 
 Arden v. Arden, 749. 
 
 Arflen v. Deacon, 911. 
 
 Arkell v. Geijrer, 880. 
 
 Arkwright v. Newhold, 4.S7, 942. 
 
 Armitiige v. Fitzwilliiiin, 290. 
 
 Armour, re, M(K)re v. Armour, 7(57. 
 
 Armour v. Carruthers, 231, 622. 
 
 Armour v. Robertson, 300. 
 
 Armour v. Smith, 804. 
 
 Armour v. Walker, 549, 551. 
 
 ,\rmatr(jng, n; Armstrong v. Armstrong, 
 
 1.5. 
 Armstrong v. Cayley, 14, 477. 
 Armstrong v. Farr, 77, 
 Armstrong v. Gage, .3.5, 189. 
 Armstrong v. Montgomery, 945. 
 Annstrong v. Little, (503. 
 Arnbery v. Thornt<m, 572. 
 Arnison v. Smith, 318, .547. 
 Arnold v. Arnold, 418, .564. 
 Arnold v. Hamilton, 8.55. 
 Arnold v. Higgins, 853. 
 Arnott, re, .507. 
 Arnott, re, Chatterton v. Chatterton, 144, 
 
 524. 
 Arpin v. (xuinane, 584. 
 Arscott V. Lilley, 891, 892. 
 Arthurton v. Dalley, 13. 
 Artistic Colour Co., re, 43, 579. 
 Ashbaugh, re, 930. 
 
 AslilK»ugh V. Ashboiigh, 15, 769, 784. 
 Ashburn v. Macguire, 1(52 (mlda), 773. 
 Ashby V. Ashby, ,384. 
 Asbury v. Watson, ,531. 
 Ashford, re. 804. 
 Ashley v. Brenton, 487. 
 Ashley v. Taylor, a59, 432, 447, 4()0, .525^ 
 
 .560, 562, ,563, 649. 
 Ashton V. Hurwitz, 283. 
 Ashton V. Innos, 169. 
 Ashworth v. Lord, 163, 16S, 894. 
 Asiiworth V. Outram, 74, 79. 
 Askew V. Manning, 8.53, 809. 
 Askew V. N. E. R'y Co., 429, 449. 
 Askew V. Peddle, 654. 
 Aslatt V. Corporation of Southampton, .55, 
 Aspinalls & Powell, re, 205. 
 Asquith V. Molineaux, .585. 
 Associated Home Co. v. Whichoord, 364, 
 
 370, 372. 
 
 Aston V. Hurwitz, 632. 
 
 Aston V. Wright, 534. 
 
 Atherley v. Harvey, 501. 
 
 Atherton v. B. N. A. Co., 673. 
 
 Atkins, re., 560, .561, 565. 
 
 Atkins' Estate, re, 2, 564. 
 
 Atkins V. Taylor, 399, 632. 
 
 Atkinson, re, 229. 
 
 Atkinson v. Ellison, 412. 
 
 Atkinson v. Henshaw, 215. 
 
 Atkinson v. Mfuskreth, 249. 
 
 Atkinson v. Pegley, 931. 
 
 Atkyns v. Kinnier, 21. 
 
 Attenborcnjgh v. London & Telephone 
 
 Co., .58. 
 Attenborough v. St. Katharines Docks, 
 
 881, 882. 
 Attorney, re (7 P. R. 311), 470. 
 Attorney, re (7 P. R. 174), 54.5. 
 Attorney, re (39 U. C. Q. B. 171), 358. 
 Attorney, re (9 P. R. 319), 930. 
 Attorney-General v. Alford, 159, 95. 
 Atty. -Gen. v. Avon Corporation, 349. 
 Atty.-Gen. v. Bermondsey, 319. 
 Atty. -Gen. v. Birmingham, 356, 361, 419, 
 
 .562, 565, 721. 
 Atty.-Gen. v. Bradlaugh, 33. 
 Atty.-Gen. v. Campbell, 421. 
 Atty.-Gen. v. Chambers, 261. 
 Atty.-Gen. v. Colney Hatch Asylum, 261. 
 Atty.-Gen. v. Cooper, 420, 423. 
 At:y.-(Ten. v. Dorking, .54, .56. 
 Atty.-Gen. v. Emerson, .504, 509, 672, 707. 
 Att.-Gen. v. Garbutt, 18. 
 Atty.-Gen. v. GaskiU, 431, 482, 483. 
 Atty.-Gen. v. Gooderham, 549. 
 Att.-Gfm. v. Grasett, 19. 
 Atty.-Gen. v. Hill, 18. 
 Atty.-Gen. v. Leonard, 180. 
 Atty.-Gen. v. Llewellyn, 78 (adda), 690. 
 Atty.-Gen. v. Marllwrough, 16. 
 Atty.-Gen. v. McNulty, 18, 212. 
 Atty.-Gen. v. Merthyr Tydfil, 261. 
 Atty.-Gen. v. Metropolitan District Ry. 
 
 C()., .536. 
 Atty.-Gen. v. Midland R'y Co., 420, 422» 
 
 442. 
 Atty.-Gen. v. Nethercoat, 451. 
 Atty.-Gen. v. Noyes, 72. 
 Atty.-Gen. v. Panther, 374. 
 
 t 
 
Till 
 
 TABLK OF CASES CITED. 
 
 ii; 
 
 .Atty.-Gen. v. Ray, 475. 
 
 Atty.-Gten. v. Shrewsbury Bridge, 270. 
 
 Atty.-Gen. v. Sil thorp, 12. 
 
 Atty.-Gen. v. Solly, 100. 
 
 Atty.-Gen. v. Tomlinii, .'j20, 598, 655, G5«. 
 
 Atty.-Gen. v. Toronto Street R'y Co., 270. 
 
 Atty.-Gen. v. Walker, 21. 
 
 Atty.-Gen. v. VVinser, 308. 
 
 Atty.-Gen. of Nova Scotia v. Gregory, 608. 
 
 Atty V. Etough, 531. 
 
 Atwood V, Chichester. 335, 337, 607, 664. 
 
 Atwootl V. Miller, 412. 
 
 Atwool V. Merryvveatiier, 360. 
 
 Augustinus v. Nerinckx, 284. 
 
 Austen v. Bird 302. 
 
 Austen v. Collins, 30, 31, 232. 
 
 Australian, etc., Co. v. Smith, 87 (addn), 
 
 062. 
 Autothreptic, etc., Co. v. Townsend, 805. 
 Avenir, The, 503. 
 Awbery v. McLean, 127. 
 Axford, re, 78(). 
 Axford V. Reid, 338. 
 Aylet V. Dodd, 21. 
 Ayacough v. Bnllar, 358, 401. 
 
 B. A. Ins. Co. V. Wilkinson, 505. 
 
 B. & S., r,\ !«_'. 0;W. 
 
 liabcock, re, 644, 7ti(). 
 
 Babcock v. Bedford, ')tC). 
 
 Baby v. Wood bridge, 224. 
 
 Backhouse v. Allcixjk, 542. 
 
 Backhouse v. Bright, ly, 474. 
 
 Backhouse v. Charlton, 380. 
 
 Backhouse v. Siddle, 750. 
 
 Bacon, rf, 031, 034. 
 
 Bacon v. Bacon, 506. 
 
 Bacon v. Cami)hausen, 160. 
 
 Bacon v. Turner, 307. 
 
 Badeley v. Consolidated Bank, 741, 747. 
 
 IJaddin v. Sutherland, 77. 
 
 Badische Anilin, &c., v. Levinstein, 201, 
 
 554, 874, 803. 
 Badgerow G. T. R'y Co., 401. 
 Btduall V. Bayley, 044. 
 Bagley v. Miles, 532. 
 Bagley v. Searle, 610. 
 Bagot V. Easton, 310, 3()3, 300, 371, 372, 
 
 380, 385. 
 Bfthin V. Hughes, 106, 330. 
 
 Baigent v. Baigent, 714. 
 
 Bailey v. Bailey, 282. 
 
 Bailey v, Bleecker, 002. 
 
 Bailes v. Sunderland, Eq. Industrial Soc. 
 
 226. 
 Bailey v. Monteith, 42, 762. 
 Baillie v. Goodwin, 206. 
 Bainljridge v. Blair, 505. 
 Baines v. Bromley, 400, 415, 800, 807. 
 Baines v. Wormsley, 012. 
 Baird v. Story, 740. 
 Baker, re, 542, 031. 
 Baker v. Blaker, 40. 
 Baker v. (jrray, 227. 
 Baker v. G. T. Ry. Co., 041. 
 Baker v. Jackson, 530, 834, 837, 842, 844. 
 Baker v. Honderscm, 400. 
 Baker v. Oakes, 481, 808. 
 IJaker v. Trainor, 32(5. 
 Bald V. Tiiomson, 175, 303, 721, 700. 
 Baldwin v. Borst, 425. 
 Baldwin v. Crawford, 640, 603. 
 Balfcmr v. Drununond, 0.">5 (<«/(/«). 
 Balfour v. Ellison, 4.50. 
 JJall v. Cathcart. 207, 270. 
 Ball V. Crompton Corset Co., 021, 020, 
 
 1009. 
 Ball V. .Tarvis, 230. 
 Ball V. Oliver, 215. 
 Ballard v. Marsden, 348. 
 Ballard v. Tomlinson, 047, 652, 715. 
 Baltic Co. v. Sinii)son, 261, .537. 
 Bainl)erg v. Solomon, 833. 
 Bamford v. Bamford, 160. 
 Bamford v. Creasy, 21. 
 Band v. Randle, 320. 
 Banker v. Griffin, 850. 
 Bank of B. N. A. v. Eddy, 83, 86, 87, 107, 
 
 485, 508, (i08. 
 Bank of B. N. A. v. Laughrey, 744. 
 Bank of B. N. A. v. Mallory, 706. 
 Bank of B. N. A. v. Moore, 240. 
 Bank B. N. A. v. Western Ass. Co., .547, 
 
 500, 657. 
 Bank of Commerce v. Bank B. N. A., 3.58, 
 
 3«}4. 
 Bank of Connnerce v. .Tennings, 52. 1»6, 00. 
 Bank of Commerce v. Middleton, 754. 
 Bank of Commerce v. Woodcock, 338. 
 Bank of Hamilttm v. Baine, 145, 846, 847. 
 
TABLE OF OASES CITED. 
 
 • •• 
 
 XIU 
 
 Bank of Hamilton v. Blakeslee, 21)6. 
 
 Bank of Hamilton v. Harvev, 616. 
 
 Bank of Hamilton v. Isaacs, 661. 
 
 Bank of Hamilton v. Stark. 597. 
 
 Bank of Ireland v. Perry, 881. 
 
 Bank of London v. Guarantee Co., 560, 
 
 570, 572. 
 Bank of London v. Wallace, 300. 
 Bank of Minnesota v. Page, 686. 
 Bank of Montreal v. Buniham, 851. 
 Bank of Montreal v. Cameron, 58!), (i25. 
 Bank of Montreal v. Campbell, 831. 
 Bank of Montreal v. C-onk, 65!). 
 iJank of Montreal v. Cousins, 424. 
 Bank of Montreal v. Fox, 203. 
 Bank of Mcjntreal v. Harrison, 467. 
 Bank of Montreal v. Ketchum, 383. 
 Bank of Montreal v. Munro, 234. 
 Jiank of Montreal v. Ryan, 695, 690. 
 Bank of Montreal v. Taylor, 222. 
 Bank of Montreal v. Wallace, 203, 330. 
 Bank of Montreal v. Wilson, 4!)2. 
 Bank of N. S. W. v. O'Connor, 229. 
 Bank of Nova Scotia v. LaRoche, 940. 
 Bank of Ottawa v. .Johnston, 629. 
 Bank of Ottawa v. MeLoughlin, 127, 66r>. 
 Bank of Toronto v. Beaver Mutual, 176, 
 
 179, 34!). 
 Bank of Toronto v. Burton, 745. 
 Bank of U. C. v. Pottroflf. 672. 673, 676. 
 Bank of U. 0. v. Scott 386, 3i-i!), 613. 
 B,*u'- ;)f T... ('. V. Spaflfoid, 847. 
 B:. •, i, J. V, Thomas, 916. 
 
 Di )' ■■■ : .. C V. Van Voorish, 459. 
 L.v u 'M. C. V. Wallace, 383, 657, 747. 
 Bu ut Vhiv«haven v. Thompson, 290. 
 Banlig V. Cartwright, 181. 
 Banner v. Berridge, 47. 
 Banner v. G. W. R., 55. 
 Bannicott v. Harris, 446. 
 Bannister, re, Broad v. Munton, 1!)4. 
 Banque Franco Egyptienne v. Lutscher, 
 
 485. 
 Banstead v. Warwick Co., 209. 
 Barber v. Barber, 204, 206, 624. 
 Barber v. Bingham, 127. 
 Barber v. Blaiberg, 407, 408, 411, 414. 
 Barber, re. Burgess v. Vinicome, 173, 1069. 
 Barber v. Houston, 37, 438. 
 Barber v. McKay, 536, 559. 
 
 Barber v. Mackrell, 67, 166. 
 
 Barber v. Morton, 681, 1072. 
 
 Barber v. Palmer, 456. 
 
 Barber v. Russell, 626. 
 
 Barclay v. Sutton, 853. 
 
 Bardell v. Miller, 285. 
 
 Bardwell v. Sheffield Water Works Co., 
 
 530. 
 Barfield v. Loughborough, 162. 
 Barker, re, 781. 784. 
 Barker v. Cox, 385. 
 Barker v. Eccles, 230. 
 Barker's Estate, re, 478, .528, 64.3. 
 Barker v. Hemming, 472, 473, 915, 916, 
 
 917. 
 Barker v. Hill, 12. 
 Barker v. .Tohnson, 561. 
 Barker v. Lavery, 671. 
 Barker v. Leeson, 877, 888. 
 Barker v. Purvis, 654. 
 Barker v. Walters, 341. 
 Barker v. Westover, 339. 
 Barker v. Wood, 284. 
 Barlow, re, 83. 
 Barlow v. Bailey, 873. 
 Barnaby v. Tassell, 531. 
 Barnard v. Scoles, 894. 
 Barnard v. Wieland, 644. 
 Barnard re Edwards v. Barnard, 349. 
 Barnes v. Addy, 319. 
 Barnes v. Barnes, 442. 
 Barnes v. Boomer, 18. 
 Barnes v. Ward, 623. 
 Barney v. United Telephone Co., 57. 
 Barnicott v. Hann, 404. 
 Baroness Wenlock v. River Dee Co., 97. 
 Barraclough v. (Jreenhough, 726. 
 Barren, ex parte, Parnell, re, 199, 202. 
 Barrett v. Barrett, 472. 
 Barrett v. Campbell, 308, 914, 1069. 
 Barrett v. Hartley, 172. 
 Barry v. Barry, 349, 765, 769. 
 Barry v. Brazil, 375, 760. 
 Barter v. Debeux, 561, 564. 
 Bartlett, re, 65. 
 Bartlett v. Bartlett, 680. 
 Bartlett, re, Newman v. Hook, 200. 
 iSartlett v. Rees, 235, 387, 392. 
 Bartlett v. Roche, 430. 
 BRrtholomew v. Freeman, 871. 
 
t 
 
 XIV 
 
 TABLE OF CASES CITED. 
 
 Bartholomew v. Rawlings, 412. 
 
 Barton v. London & N. W. Ry. Co., 368, 
 
 371, 373. 
 Barwick v. Barwick, 230. 383. 
 BaHhuni, re, Hannay v. Bashani, 76!). 
 Baston V. Braclsluiw, 430. 
 Bateniau v. Margerison, 327, 346, 540. 
 Br.ceH V. Hillcoat, 235. 
 Eatley v. Kynock, 873. 
 Batt, ;r, Wright v. Whitf, 17 1, !»()8. 
 Batten v. Wedgewood, 915. 
 Battley v. Sears, 710. 
 Batty V. Clever, 641. 
 Bangh v. Price, 170. 
 Baxter v. Connolly, 17. 
 Baxter v. Finlay, 193. 
 Baynard v. Simmonds, 746. 
 Bay Hard v. Wooley, 350. 
 Bazett V. Morgan, 899. 
 Beall V. Smith, 374, 375. 
 Beamish v. Farmer, 162 (addu). 
 Beamish v. Pomeroy, 647. 
 Beamish v. Stejjhenson, 60, 748. 
 Beaney v. Elliott, 635. 
 Bear v. Smith, 540. 
 Beardmore v. Gregory, 335, 346. 348. 
 Beardsall v. Cheetham, 580. 
 Beasloy v. Chapman, 709. 
 Beasley v. Hamilton, 422. 
 Beaton v. Boomer, 161, 946. 
 Beattie v. Barton, 736, 739. 
 Beatty v. Haldane, 421 (adda), 932, 1070. 
 Beatty v. Liacy, 442. 
 Beatty v. Mair, 408. 
 Beatty v. Neelon, 561. 
 Beatty v. O'Connor, 230, 894, 925. 
 Beatty & Toronto, re, 917. 
 Beaty v. Bryce, 77, 880, 881, 888. 
 Beaty v. Cromwell, 87. 
 Beaty v. Radenhurst, 196, 200, 238. 
 Beaty v. Shaw, 170. 
 Beaufort v. Berty, 215. 
 Beavan v. Burgess, 139. 
 Beaver v. Boardman, 107, 577. 
 Becher, re, 934. 
 Becher v. Webb, 225. 
 Beck V. Dear, 358. 
 Beckett v. Attwood, 79. 
 Beckett V. G. T. Ry., 649. 
 Beckingham v. Owen, 629. 
 
 Beckitt V. Tasker, 337, 338. 
 Beckitt V. Wragg, 675, 947. 
 Bedborough v. Army & Navy Hotel Co., 
 
 101. 
 Beddall v. Maitland, 408, 4W», 4.5.5, 457. 
 Beddington v. Beddingtoti, 273, 275, 276, 
 
 302. 
 Beddington v. Deichniann, lOSK). 
 ISeddow v. Beddow, 55, 56, 5M. 
 Beekman v. JarviH, 233. 
 Beeswing The, (580. 
 Beevor v. Luck, 235. 
 Begg V. Cooper, 628. 
 Beioley v. Carter, 26, '1~. 
 Belany v. French, 471. 
 Belch V. Arnott, 443. 
 Bell re, 794. 
 
 Bell re. Bell v. Bell, 761. 
 Bell re, Carter v. Staddeii, 255. 
 Bell V. Chamberlen, 505. 
 Bell '■ . Denver, 711. 
 Bell v. G. T. R., 127, 443. 
 Bell re, Lake v. Bell, 
 Bell V. Landcm, 348, 948. 
 Bell V. Lowe, 635. 
 Bell V. Macklin, 669. 
 Bell V. Manvers, re, 817. 
 Bell V. MUler, 14. 
 
 Bell V. North Staffordshire Ry. Co., 691. 
 Bell V. Riddell, 574. 
 
 Bell V. Sunderland Building Soc, 227, 235. 
 Bell V. Taylor, 469. 
 Bell V. Vincent, 289. 
 Brill V. Walker, 212, 822. 
 Bell V. Wilkinson, 107, 425. 
 Bellamy v. Brickenden, 172. 
 Bellamy v. Sabine, 221. 
 Bellcairn, The, 138. 
 Bellerophon, H. M. S., .502. 
 Belmonte v. Aynard, 877, 881, 945. 
 Belt V. Lawes, 428, 662. 
 Beltcher v. Brown, 857. 
 Belton, ex parte, 466. 
 Benbow v. Low, 431. 
 Benbow v. Townsend, 13. 
 Benecke v. Craddock, 407. 
 Benecke v. Frost, 308, 3(Vt, 36S-371. 
 Benjamin v. Saulez, .501. 
 Bennett v. Baxter, 1.54. 
 Bennett v. Bennett, 23, 30, 945. 
 
TABLE OF OASES CITED. 
 
 XV 
 
 Bennett v. Haniill, 212. 
 
 Bennett v. Lord Bury, 581, r>S3. 
 
 Bennett v. Moore, 037, 044, 045. 
 
 Bennett v. O'Mara, 280, 404, 521. 
 
 Bennett v. Sprague, 340. 
 
 Bennett v. Tregent, 85, 8t). 
 
 Bennetto v. liennetto, 778 (adda). 
 
 Bennett v. Wheeler, li)4. 
 
 Bennett v. White, 8!)2, 8!16, <.M)2. 
 
 Benisclior v. Coley, 71. 
 
 Benson v. Paull, 801. 
 
 Bent'in v. Polkinghorne, 572. 
 
 Berdan v. Greenwood, 35, 177, 404, 54l(, 5r)0, 
 
 578. 
 Berdeiii v. Barringtoii, 81. 
 Bergman v. McMillan, 340. 
 Berkeley v. Discount C\)., 484. 
 Berkeley'.s Trusts, re, 174. 
 Bernard, re, EdwaixLs v. Bernard, 705. 
 Beinard v. Alley, WO, 240. 
 Bernard v. Hardwick, 433. 
 Bernard v. (ribson, 10. 
 Berney v. Sewell, Si), 215. 
 Berridge v. Roberts, (520. 
 Berrie v. Moore, 514. 
 Berry v. Exchange Trading Co., 478,517. 
 Berry v. (ribbons, 195. 
 Beiry v. Keen, 151). 
 Berry v. Zeiss, 335. 
 Berte, re, 15. 
 
 Berthier Election Case, 35. 
 Bertolacci v. Johnstone, 418. 
 Bertram v. Massey, 895, 897. 
 Bervier v. Momington, SO. 
 Berwick v. Murray, 159. 
 Besunt, re, 00. 
 Be.saut V. Wowl, 43, 400. 
 Besley v. Besley, 28(>, 300. 
 Bessey v. Graham, 230. 
 Best V. Applegate, 383. 
 Best V. Hays, 882. 
 Best V. Pembroke, 735. 
 Betiiall V. United Telephone Co., .581. 
 Betl'.ell V. Casson, .502. 
 Bethune & Co., re, 097, !t31. 
 Bethune v. Calcutt, 172, 237. 
 Betts V. Cleaver, 097. 
 Betts V. Doughty, 447. 
 Betts V. G. T. Ry. Co., .507. 
 Betts V. Neilsou, 324. 
 
 Bevan v. Wheat, 851. 
 
 Bevan & Whitting, re, 471. 
 
 Bevis V. Boulton, 109, 170. 
 
 Bewicke v. (irahani, 501, 503, 508, .509. 
 
 Beyfus v. Masters, 205. 
 
 Beynon v. Gwlden, 307, 372, .395. 
 
 Bianca, The, 307, 370. 
 
 Bickers v. Sixiight, 282, 283. 
 
 Bickerton v. Walker, 22(5. 
 
 Bickford v. Grand Junction Ry. Co., 170, 
 
 220. 
 Bicknell, rr, 27. 
 
 Bidder v. Bridges. 52, 500 .503, 5.39, .5.50. 
 Bidder v. McLean, 422. 
 Biehn v. Biehn, 109. 
 Bigelow V. Bigelow, 149. 
 Biggs V. Bree, 1!>9. 
 Biggar v. Dickson, 174. 
 Bigsby V. Dickinson, 35, 590, 092. 
 Billings V. Loucks, 841. 
 Billington v. Provincial Ins. Co,, 07.". 
 Biltoii V. Bl.akely, 217. 
 Bingham v. Ale.xander, 319. 
 Bingham v. Smith, 13. 
 Bingham v. Warner, 85. 
 Bingle v. Dake, 8(X). 
 Binnington v. Harwood, 103. 
 Bii-eh V. Birch, 745. 
 Birch V. Joy, 203. 
 Birch V. Mather, 432. 
 Birch V. Williams, 000, 004. 
 Bircliall, re, Wilson v. Birchall, '.Xm. 
 Bird V. Heath, 0,54. 
 Bird V. Matthews, 3.58. 
 Bird V. Wenn, 227. 
 Birdsell v. .Johnson, 178. 
 Binningham v. London & N. W, Ry, Co., 
 
 303, 307. 
 Birmingham Estates Co. v. Smith, 408, 410, 
 
 411. 
 Biscoe V. Ward, 373. 
 Bishop, re, 870. 
 Bishop V. Willis, 445. 
 Bishop of Winchester v. Bowker, 403. 
 Bishop of Winchester v. Mid-Hants, 387. 
 Bishoprick, re, 2fi, 782. 
 Bissett V. .Tonei, 006, 615. 
 Bissett V. Strachan, .572. 
 Bissicks V. Bath Colliery Co., 723. 
 Black V. Black, 79. 
 
XVI 
 
 •i\iBLE OF CASES CITED. 
 
 Black V. Hainswell, VJfJ. 
 
 Blackburn v. BrookH, 4(il, 536, 537. 
 
 Blackburn v. Caints 3i)2. 
 
 Blackburn v. Cameron, 385. 
 
 Blackburn v. McKinlay, 335, 339. 
 
 Blackburn Union v. Brooks, 4f)l. 
 
 Blackburn v. Ravenhill, 218, .525. 
 
 Blackburn v. Sheriff, 202, 247. 
 
 Blackett v. Bates, 14. 
 
 Blackie v, OaniaHton, 284. 
 
 Blackley v. Kenney, OHl (wlda). 
 
 Blacknian v. O'CJommti, 83(>, 843. 
 
 Blackniore v. Kdwartls, 447. 
 
 Blaokstock v. McFarlaiu', ti!)5. 
 
 Blackwell, re, Bridginan v. Hlackwell, tibb, 
 
 Blain, ex parte, 343. 
 
 Blain v. Hlai", 521. 
 
 Blain v. Terrybtirry, KiO. 
 
 Blaiua Iron Co. (Jarbiitt, 370. 
 
 Blair v. Cordutr, 933. 
 
 Blair v. Cowder, 43. 
 
 Blake v. Albion L. I. Co., 445, 44!). 
 
 Blake, re, 258, 250, 7(53. 
 
 Blake v. Appleyard, 415. 
 
 Blake v. Blake, 784. 
 
 Blake v. Beaty, 237. 
 
 Blake v. Building & Loan AHHUciation, 480, 
 
 Blake v. Gale, 70(i, 777. 
 
 Blake v. Harvey, U54. 
 
 Blake v. Lever, 301. 
 
 Blake v. Smith, 374. 
 
 Blake & Co. v. Moore, 3rj5, 420. 
 
 Blakeley v. Blaase, 737, 738. 
 
 Blakeley v. Ingram, 8!)3, IMK). 
 
 Blakesley, re, 933. 
 
 Blakeney v Dutaur, 218. 
 
 Blakey v. Latham, 77 (addu), OIG, 917. 
 
 Bland v. Andrews, 744. 
 
 Blaney v. McUrath, 925. 
 
 Blank v. Footman, 894. 
 
 Blasdell v. Baldwin, 779. 
 
 Blean v. Blean, ()2, 782. 
 
 Bleas, ex parte, 093. 
 
 Bleeker v. Meyers, 574. 
 
 Blenkharn v. Longstaffe, 557. 
 
 Blenkhorn v. Penrose, 44(5. 
 
 Bletcher v. Brown, (510. 
 
 Blevins v. Madden, 754. 
 
 Blewitt V. Dowling, 44, .58, 872. 
 
 Blight, re. Blight v. Hartnoll, 447. 
 
 Blias V. Putnam, 330. 
 Block V. Cox, 743. 
 Blogg V. Johnston, lUl, 1152. 
 Blong V. Kennedy, 391. 
 Bloomer v. Spittle, ]()8. 
 Bloomtield v. Brooke, 715, 720. 
 Blore V. Asliby, 371, 373, 893. 
 Blount, re, 271. 
 
 liloxam V. Metropolitan, »,'tc., 43. 
 Blundell, re, Blundell v. Hluudell, 173. 
 Blunden v. Desart, 4(19, 470. 
 Blyth & Fanshawe, r<; 1089. 
 Blyth & Yoimg, re, 80, HI. 
 Blythe, In re, 80. 
 
 Board cf Education of Napunt'e v. Napancf 
 53, 8(54, 8(55. 
 
 Boatwright v. Boatwright, 7(52. 
 
 Bobier & Ontario Invt. .V.ssoc, 211. 
 
 B(Kldy, re, 781, 784. 
 
 Botldy V. Wall, 107, 451, 452. 
 
 Bogg V. Midland Ky. Co., 39, 531. 
 
 Boice V. O'Loane, 722, 944. 
 
 Holcklow V. Fisher, 502. 
 
 Bolkow V. Foster, 485, 491, .544 ((((Ai'i.)- 
 
 Bolingbroke v. Kerr, 384. 
 
 Boltcju V. Bolton, 571, 722, 725. 
 
 Bolton V. Corp. of LiveriK)ol, 503. 
 
 Bolton V. Huge], 213. 
 
 Bolton V. Natal. Kte. Co.. 50!). 
 
 Bolton V. SchfK.l lioarcl, 203, .525. 872. 
 
 Bolton V. Stanuard, 32(5, 327. 
 
 Bompas v. King, 232. 
 
 Bond V. Conmee, 443. 
 
 Bonner v. G. W. R . Co., 5(5. 
 
 Bonistiel v. McMaster, 459. 
 
 Bonithon v. Hockmore, 172. 
 
 Bonville v. Bonville 1(53. 
 
 Book V. Book, 423. 
 
 Book V. Ruth, 00, 01, 21 (J. 
 
 Booth v. Briscoe, 318, 380, (5(51. 
 
 Booth V. (iirdwood, (503. 
 
 Booth V. Preston, 877. 
 
 Booth V. Trail, 743, 744, 745. 
 
 Bordier v. Burrell, 83. 
 
 Borneman v. Wilson, 5(51. 
 
 Borough v. James, 370, 371. 
 
 Borthwick v. Ransford, 03(5. 
 
 Borwick v. Walton, 830. 
 
 Bos V. Helsham, 200. 
 
 ^^ 
 
TAHLE OK CASES CITED. 
 
 XVU 
 
 Boswell V. Coaks IW, 405 (nMa), mi, 
 
 725, 914, 955. 
 BoHWoll V. (irant, 581. 
 Boswell V. Pettigrew, 877, 878. 
 Boh worth, re, Howard v. Eanton, 350, 709. 
 Bouch V. The Si'von Oaks, etc., tty. Co., 
 
 744. 
 Boiiltbee, re, 1)30. 
 Boultbee v. Camei-on. 423. 
 Boiife'liton, re, Bought(jn v. lioiighton, 47i. 
 Bougiitou V. City Ins. Co., iMi, 510. 
 Jioulton V. Blake, 538. 
 Bou'.toii V. Jeffrey, 18. 
 Boultim V. Poard, 348. 
 Boultoii V. Rowlaiul, 8!)4, 925. 
 Boultoii V. Stegiium, 2.5, 214. 
 Boiiltoii V. Switzer, 921. 
 Boultoii V. The Church Stxjiety, 8. 
 Boulton'8 Trust, re, 433. 
 Bourgoise, in re, 785. 
 Bourko V. Alexandra Hotel, 451. 
 Hourk V. Davis, .555 (((//(/")■ 
 Bounie v. Coulter, 452. 
 Bcmstoad & Warwick, n; 210. 
 Boimteatl y. Whitinore, 335. 
 Boweii, re lieunett v. Boweii, K55, 285, (535. 
 Boweii V. Fox, 25, 214. 
 Bower v. Hartley, 301, 308, 370, 373. 
 Bowennaii v. PhillipH, 774. 
 Bowenuau v. Whitt!, 879. 
 Bowers V. Flower, 832. 
 Bowey V. Bell, 898. 
 Bowker v. Kvans, 5(j0, ,503. 
 Bowker v. Kestevan, 415, 893. 
 Bowman v. Bowaii, 740. 
 Bowniau v. Massoii. 723. 
 Bowman v. Sutherland, 480. 
 Bowstield, The, 355. 
 B(>w.Hlaugh V. Bowslaui^h, 518. 
 Bowyear v. Pawson, 407, 029. 
 Box V. Bridgman, 224, 235. 
 Boycott, re, 931. 
 Boyd, re, 789. 
 Boyd V. Allen, 779. 
 Boyd V. Haynes, 741, 745. 
 Boyd V. McNutt, 557. 
 Boyd V. Nasmith, 49. 
 Boyd V. Petrie, 240. 
 Boyd V. Simpson, 149. 
 Boyd's Trusts, re, 578. 
 
 Boyle, re, 271. 
 
 Boylo V. BettwH Llftntwit Collery ,.'i., .58, 
 
 01. 
 Boyle V. Sacker, 289, 301, 302, j08, 459, 
 
 521, 092. 
 Boyle V. Wiseman, 502. 
 Boynton v.Boynton, 504. 
 lioys' Home v. Lewis, 100, 175, 771. 
 Boyse re, Croftou v. Crofton, 177, 548, .5,50. 
 Bozen v. Bolland, 409, 471, 472. 
 Brackin, re. Doughty v. Townson, 178 Sc 
 
 348 (iiMa), 7(S4, 774. 
 Briulburn v. Hall, 728. 
 Briulburne v. Shanly, l(i7. 
 Bnulbury v. Cooper, 432. 
 Bradford, re, 74, 75, 899. 
 Briulford v. Yo\iiig, 074. 
 Bradlaugh v. Clarke, 574. 
 Bnullaugh v. The C^ueen, 437. 
 Bradley v. Bradley, 518, 519, 907. 
 I Bradley v. Clark, 484, 480. 
 j Briwlley v. Craiu.', 08(!. 
 Bradley v. Mcintosh, 502. 
 Bradley v. Wilson, 340. 
 Bradt v. Bradt, 494 {adUa). 
 Brady v. Keenan, 107, 202. 
 Brady v. Walls, 210. 
 Braginton v. Yates, 97, 99. 
 Braithwaite, re, Braithwaite v. Wallis, 709. 
 Brandon, re, 05, 301. 
 Brandon v. Brandon, 100. 
 Brandon v. Robson, 829. 
 Brandreth v. Hears, 382. 
 Brandreth's Trademark, /'', 892. 
 Branigan v. Stinson, 08(). 
 Branwhite's case, 030. 
 Branford v. Branford, 500, 
 Branuen v. Jarvis, .585. 
 Brant v. Willoughby, 218. 
 Brajitford v. Grand River Xavigati<jn Co. 
 
 217. 
 Brash v. Latta, 833. 
 Brassington v. Cussons, 037, 045. 
 Braun v, Aumond, 170, 
 Bra/.ill, re, Barry v. Brazill, 109, 170, 772. 
 BrearcliflF v. Dorrington, 2.55. 
 Breckenridge v. ^Ontario Loan & Deposit 
 
 Co., 137. 
 Bree v. Marescaux, 303. 
 Breeze v. Midland Ry. Co., 217. 
 
xvm 
 
 TAHLE OP CASES CITED. 
 
 Brega V. HcnlgHoii, (551. 
 
 Brcnifr v. Brown, 2*H>. 
 
 Bi't'xltiiU'r V. Harwick, 444. 
 
 Br.-tt V. Smith, 27* {<i,l<l,i), 4(U), aW. 
 
 Brewer v. Clivrke, 730, KHfi. 
 
 Brewer v. Yorkc, l(»;t, (174. 
 
 BreweMter v. Tliorpe, 37t>. 
 
 Brewnter v. I'lyor, 'MH. 
 
 Brewster v. Iliirrand, (>40, 
 
 Brice v. BivniiiMter, 4!t, ."lO. 
 
 Brice v. jNIuiiroe, 4'_'.'t. 
 
 Brioker v. Aiinell, 4(i('. 
 
 Bridge v. Bniwii, Itiit. 
 
 BridgeM v. Hivles, LMr>. 
 
 Bridget v. Haines, ,V)0. 
 
 Bridgetown v. Barbadix's. etc., 4.57. 
 
 Bridgewater v. |)e\V'int('n, aO."). 
 
 Brien V. Sullivan, 7<Mi. 
 
 Brier, re, I5rier v. Kvison, KitJ. 
 
 lirighani v. lironnon, 4!(7. 
 
 Brighani v. McKenzie, 144, .')S4, 9.*)1. 
 
 Brig'hani v. Smitli, 18(>, 47-, iu'-i, <>77, '.'16. 
 
 Bright V. Cauii)l)ell, 170, 171, 233. 
 
 Bright V. Marner, 445. 
 
 Bright V. Tyndall, 3'.l, 530. 
 
 Bristol, Mayor of v. Cox, 511. 
 
 Bristol & Somerset Ry., re, 54. 804. 
 
 Bristow V. Wliitmore, 3(1, 
 
 Britain v. Rossiter, 41. 
 
 British American Ins. Co. v. Wilkinson, 
 
 505. 
 British Can. L. & A. Co., re 428. 
 British Can. L. Sc I. Co. v. Britnell, 738. 
 British Can. L. &. 1. Co. v. Williams, 392. 
 British Dynamite Cy. v. Krebs, ()4(). 
 British Empire Shipping Co. v. .Jones, 13. 
 British Mutual Investment Co. v. Pilkin- 
 
 ton, 872. 
 British W.aggon Co. v. Lea, 49. 
 Bi-oad V. Broad, n; 108!). 
 Broad v. Selfe, 172. 
 Broadhurst v. Willey, 570. 
 Brocas v. Lloyd, 544. 
 Brock V. Cameron, 7<)0. 
 Brock V. Saul, 201. 
 Brockington v. Palmer, G2. 
 Brocklebank v. East London Ry. Co., 02. 
 Brocklebank v. King's Lynn Steamship 
 
 Co., 944, 945. 
 Brockville, etc. v. Canada Central, 723. 
 
 BriKler V. Saiilard, 10<). 
 Brmleriok v. Broatch, 470, 580. 
 Brogden, re, Billings v. Brogden, 10:1. 
 Bromley, re, 349, 700, 709. 
 Bromley v. (Jrahame,'.'H)2, 509. 
 Br(K>k, re, 90, 97. 
 Bnwk, re, Sykes v. Brook, 98. 
 Brook V. Stone, 172. 
 Br(K)ko v. |}r(M)ke, 255. 
 Brooke v. McTiean, 325. 
 Br(K)ke v. Wigg, 541. 
 Brookes v. Conley, .S9. 
 Brooking v. Maudsley, 449. 
 Brooks v. Karlar, 554. 
 Brooks V. Aylmer, 031. 
 Brooktield, ir, 'A, 808. 
 Brooks V. Stone, 835. 
 Brotiierton v. Hetherington, 171. 
 Brough V. Brantford N. & P. 15. Ry. Co. 
 925. 
 
 Ih'ouse V. Stayner, 057. 
 Brower v. Canada I'eniiancnt Muildii.g 
 Society, 220. 
 
 Brown, re, 28, 157, 231, 345, 794, 790, 
 
 Ih'own, ri; Brown v. Brown, 90.S, 
 
 Brown V. Bailey, 575. 
 
 Brown V. Bemmidge. 730. 
 
 l$r()wn V. Black well, 443. 
 
 Brown V. lirown, 778. 
 
 BroM'n V. Bruci', 29. 
 
 Brown V. Burdett, 912, 917, 923. 
 
 Brown V. Burgen, 407. 
 
 Brown V. Capron, 178, ,SS(», 498.7<I1. 
 
 Brown v. CiiKpnars, 023. 
 
 Brown v. Collins, 33, 097. 
 
 Brown V. Conant, 472. 
 
 Brown V. Cousineaux, 307. 
 
 Brown V. Deacon, 22i). 
 
 Brown v. DoUard, 141, 145, 187, 1W>. 
 
 Brown v. Dor.se, 82. 
 
 Brown v. Farebrothers, 19(S, 199. 
 
 Brown V. Parr, .555. 
 
 Brown V. Perry, 219. 
 
 Brown, re, Ward v. Morse, 89(). 
 
 Brown v. Mallett, 802. 
 
 Brown v. McGuffin, 740. 
 
 Brown v. Merills, 744. 
 
 Brown v. Morgan, 337, 027. 
 
 Brown v. Nelson, 877, 879, 916. 
 
 ■97. 
 
TABLK OF CA8E8 CITED. 
 
 XIX 
 
 Hi'own V. Nortli, ;<3(>. 
 
 I'.mwii V, I'ciii'H, riSH. 
 
 Mmwn V. I'carNoii, (»12. 
 
 I'.niwii V. r(»rtcr, a!)?. 
 
 r.iDwn V. HiiUlcll. HUl. 
 
 I'lrowii V. S»'WflI, SlL'. 
 
 liniwn V. Slmw, 47S, ll.Vt. 
 
 lirowii V. Watkini, 4!t7. 
 
 I'.rtiwn V. Wciitlii'i-ht'iKl, XU. 
 
 Hiiiwn V. Wliiti', .")H7. 
 
 I'.iown V. WimmI, H(1. 
 
 I'lrowiie \. CnwN, KJtt. 
 
 I'.iipwniiifr V. Hfthiii, "15. 
 
 Ilriiwiilcc V. (y'miiiin^'lunii, 22(1, tiiMJ, 
 
 liiowiisconil) V. Tully, /•'■ Fiiirbairii, 472, 
 
 llnici' V. Ciuiadiaii Hank of Commerce, 050, 
 
 I'lnifi'c V. I'('iii))»'i't(iii, 1(1(1. 
 
 liriiiisdcii V. llmii]>lirfys, !t41. 
 
 Uiyaiit, I'y jiiir/<; 472. 
 
 lii'yan, v, 25!t. 
 
 liryaii v. Mitclii'll, 5!l(i. 
 
 Biyaiit, /■'•, it'.). 
 
 linaiit V. Hull, (1(1, 71S, 74S. 
 
 l?i'yaiit V. Hu^iies, 4(1(1. 
 
 Hryant v. Ki'a<liiig, HKl. 
 
 Hryce v. Mcliityre, 503, 714. 
 
 Bryec, etc. v. Salt, (127. 
 
 r.iT(lgf.s V. Hranfill, 24!l. 
 
 iirysoii V. Whitehead, 17. 
 
 J'.iicliau V. Wilkes, 1!»3. 
 
 liiic'liauaii V. Kerby, 231. 
 
 liucliaiuin V. Hiicker, H~. 
 
 Biiehanan v. Tiffany, 15(1, 224. 
 
 15nck, )v, Peck v. linck, 204. 2(1(1. 
 
 15ucke V. Bucke, 1().S5. 
 
 Bucke V. Murray. 107, 577, 578. 
 
 Buckler v. Bowman, 23(1. 
 
 Buckley v. IJeigle, 41, (17. 
 
 Buckley v. Ouillette, 3K3. 
 
 Buckley v. Wilson, 323. 
 
 Buckniaster v. Buckma.ster, 27, 7H3, 784. 
 
 Buckton V. Higgs, .")(l!t (n</'lit), 893. 
 
 Budd V. Davison, 5,S7, 50(1. 
 
 Budding v. Murdock, 447. 
 
 Budworth v. Bell, 942. 
 
 Buell V. Fisher, 3S8. 
 
 Buell V. Towns, (114. 
 
 Buffalo & Lake Huron Ky. Co, v. Hemm- 
 
 ingway, 878. 
 Builder V. Kerr, 741. 
 
 Dnilding & Loan Co. v. HeimrcKl, (18, 127, 
 
 128, (Mi5. 
 Building & Loan Ass. v. Palmer, 789. 
 Huist V. Bridge, 711, 715. 
 Btilkley v. Ho|m', 28, 531. 
 Bull V. HariK-r, 25, 194, 204, 20«i, 207. 
 Bull V. North British, etc. Co., 78, 232, 451, 
 
 584. 
 Bnlley v. Bulley, 325. 
 Bullock V. <-orry, 'AHi. 
 Bidnum v. Dixon, 509. 
 Bulteal V. Plmumer, 3!). 
 Biinbury v. ManufacturerH Ihh. (^o., 593. 
 Bunn V. Bunn, .")02. 
 Burchell v. Pugin, 747. 
 Bunleii V. Burden, KiO, 
 B>irdett V. Kockley, 717. 
 Burdekin v. Potter, (124. 
 liurdiok v. (iarrick, 1.59, KM), 072. 
 Burford v. Lyinl)urner. 390. 
 Burge, /•(', (fillarcl v. LawreiiHCii), 435. 
 Burges, r« , 333. 
 
 Burgess, rr, Bottomley v. BurgesH, 333. 
 Burgess V. Conway, (173. 
 B\irgoine v. Taylor, (104. 
 Burk V. Brittain. 128. 
 Burke v. KtMrney, 481, .57(1. 
 Burke v. Pittman, 3(1(1, 3(17, 308, 30i», 370. 
 Burke V. I'yne, 012. 
 Burland, /n /<■, B\irland v. Broxburn Oil 
 
 Co,, 303. 
 Burlinson v. Hall. 49, 350. 
 Burn V. B\irn, 178, 701. 
 Burn V. Straight, 8.3.3. 
 Burnell v. Buruell, 044. 
 Burnett v. Foster, 3.53. 
 Burnett V. Uuirm Mut. Fire Ins. Co., 440. 
 Burnham v. Gait, 393. 
 Burnham v. (Jarvey, .5.55. 
 Burns v. Boyd, 213. 
 Burns v. Canada Co., 330. 
 Burns v. Chamberlin, 188. 
 Bums V. Chisholm, .570, 940. 
 Burns v. Mackay, 789. 
 Burns V. Walfos-d, 284. 
 Burrard v. Calisher. 97, 98. 
 Burritt v. Burritt, ia5. 
 Burritt v. Murdock, 478, (il!». 
 Burridge v. Niclioletts, 444. 
 Burroughs v. Oakley, 207. 
 
XX 
 
 TABLE OF CASES CITED. 
 
 mh 
 
 
 Burrows v. Haiiiey, 4fJ4 
 
 Bureill V. 'raniier, 338, 507, (127. 
 
 Buratall v. Beyfus, 31!», 381. 
 
 Burstall v. Bryan, 05!). 
 
 Burgtall V. Fearon, 5(>4. 
 
 Burt V. British Nation, etc., 341. 
 
 Burton V. Earl of Cliesterfi(,'l<l, 258. 
 
 Burton v. Gore District M. l'\ I. Co., 232. 
 
 Burton v. Roberts, 744. 
 
 Burton v. Staffordshire, 53i). 
 
 B iry V. Allen. I(i7. 
 
 Busfield, re, Wlialey v. BusHeld, 301. 
 
 Bush V. Beavan, 54, 8(!]. 
 
 Bush V. Fry, 853. 
 
 Bush V. Trowbridge Water Works Co., 421. 
 
 Bush V. Watkins. 540. 
 
 Bustros V. Bustros, 274, (J05. 
 
 Bustros V. White, 107, 37!>, 501, 50(t, 507, 
 
 510. 
 Butcher v. P(Kjler, SM. 
 Butland v. Gillesiue. 20. 
 Butler V. Butler, 337, 303, 3()0, 370. 
 Butler V. Church. 10, 440. 
 Butler V. Rosenfeldt, 820. 
 Butler V. Tlie Standard Ins. Co., 140, 072. 
 Butterworth v. Tee and Wife, (i27. 
 Bu.xton V. Lister, 13, 17. 
 Buxton V. Monkhouse, 50. 
 Byain v. Byani, 30, 531. 
 Byam v. Sutton, 331. 
 Byrch, re, 031, 034. 
 Byrd v. Mann, 75. 
 Byrd v. Nunn, 434. 
 Byrne v. Box, 045. 
 
 Byrne v. Brown, 40 (aitda), 350, ,08, 371, 373. 
 By.ne v. Frere, 430. ,570. 
 Byrne v. Muzio, 437. 
 Bywater v. Dunne, 005, 041. 
 
 C. K.&C, re, 9.30. 
 
 C. & L., re, 030, 034. 
 
 Cabburn, re, 7()8, 805, 800. 
 
 Cabbum, re, Gage v. Rutland, 800. 
 
 Cabel, re, 251. 
 
 Cable, re, 251. 
 
 Caddick v. Cook. 344. 
 
 Cade V. New mil, 005. 
 
 Cahuac v. Durie, 230, 237. 
 
 Caii-d V. Moss, 234. 
 
 Cairns v. Water Commissioners of Ottawa, 
 
 443. 
 Caisso V. Burnham, 100, 005. 
 Caisse v. Tharp, 745. 
 Caister v. Ciiapman, ,303, 371, 373. 
 Cn'iciwell v. Pagham Harbour, etc., Co., 
 
 27(», 448, 400. 
 Caley v. Caley, 334. 
 Callaghan, re, 785, 704, 802, 803. 
 Callandar v. Hawkins, 257. 
 Callander v. Teasdale, 251. 
 Callender v. Wallingford, .371. 
 Calley v. Richards, 500. 
 Callieott, re, 782. 
 Callicott V. McKinlay, 002. 
 Callow V. Young, 711, 714, 710. 
 Calvert v. (Godfrey, 02, 212, 782, 783. 
 Cambefort v. Ciiapman, 343. 
 Cambrian Co., re, 485. 
 C.imbrian Mining Co., n, .54. 
 Cameron, re, 804, 031, 0.33, 084. 
 Cameron v. Baker, 200. 
 Cameron v. Bt'ckford, 35. 
 Cameron v. Bethime, 174. 
 Ciuneroii v. Bradbury, 050. 
 Cameron v. (Jameron, 23(i, 237, 501, 007. 
 Cameron v. Cami)bell, 348, 472,017. 
 Cameron v. Eager 50], 505. 
 Cameron v. (iilchrist, 313. 
 Cameron v. Kerr, 231. 
 Cameron v. Leroux, '.M»8. 
 Cameron M. C, re, 030. 
 Cameron v. McRiu', 305. 
 Cameron v. Philips^ 332. 
 Cameron v. Rutlierford, 330, 027. 
 Cameron v. Wolfe Island Ry. Co., 225. 
 Campan v. Lucas, 270, 854. 
 Campbell, re, 524, 730. 
 Campbell v. Bell, 7<i2, 770. 
 Cami)l)ell v. Campb«?ll, 518, ,5.50, 782, 008. 
 Cami)bell v. Cole, 040. 
 Campbell v. Delihanty, 720. 
 Campbell v. Edwards, 057, 072. 
 Cam{)beH v. (Jarrett, 300, 540. 
 Campliell v. Hc.yland, 301, 302, 562, Oil. 
 Campltell v. James, 381. 
 Campbell v. Mjulden, 134. 
 Camplmll v. Martin, 517. 
 Cair-.iibell V. McArtiuir, 510. 
 Campbell v. Pedin, 745. 
 
TABLE OF CASES CITED. 
 
 XXI 
 
 Civiuptell V. Pritict', CM. 
 
 Cimipbell V. Robinson, 321, 373. 
 
 Campbell v. Royal Canmhan Bank, 677. 
 
 Campbell v. Royal Canadian Bank, 672. 
 
 Canii)bcll v. Tucker, 48(5, 488. 
 
 CaniplH']! V. Walker, 170. 
 
 ( lanaila Cc-itral Ry. v. McLaren, 8!». 
 
 Canada Central Ry. Co. v. Murray, (JOS. 
 
 Canal la Central Ry. Co. v. The Queen, 
 .•i'J. 
 
 (Janada Cotton Co. v. Parnialee, 742, 744, 
 745. 
 
 Canada Land, etc. v. Dysart, (>47, 056, 674. 
 
 Canada Landed Credit Co. v. Caliaglian, 
 286. 
 
 Canada Landed Credit Co. v. McAllister, 
 223. 
 
 Canada Landed Credit Co. v. Thoiniwon, 
 (i41, 062, (i68. 
 
 (Canada Life Assurance Co. v. Peel Manu- 
 facturing Co., 17. 
 
 Canadian Pacific Ry. Co. v. Crant, !)10. 
 Canadian j'acific Ry. v. Conmee, 431, 50(). 
 tianada Permanent, B. S.,etc. v. F. iley, 272, 
 
 5.S.'1. 
 
 Canada Perm. B. 8. v. Foreit, 488. 
 Can. Perm. B. H. v. Manion, 585. 
 Canada Perm. 15. S. v. Wall is, 211. 
 Canada Permanent li' )an & Saving Co. v. 
 V. Ross, 210. 
 
 Canada Pennan^^nt Loan & Savings Co. v. 
 Young, 205. 
 
 Canadian Bank of OoninHTce v. Bricker, 
 Canadian Bank of Comniei"ce v. Bruce, 877. 
 626. 
 
 CaTiadiau Bank of Commerce v. Croucli, 
 
 747. 
 Cuiadian B,».ik of Commerce v. Forbes, 
 
 223, 227. 
 Canadian Bank of Commerce v. Middleton, 
 
 H82, !)45. 
 Canadian Bank of C. lumerce v. Tasker,880. 
 Canadian Bank of Commerce v. Woodcock, 
 
 627, (ndda). 
 Canadian Oil Work.s v. H*y, 402. 
 Canadian Securities Co. v. Prentice, 412, 
 
 426. 
 Candee v. Lord, 774. 
 C;uidy V. Maughan, 881. 
 
 Civne V. Martin, 470. 
 
 Canham v. Neale, 005. 
 
 Caniffe v. Taylor, 2!)0. 
 
 Cann v. Cann, 166, 2(H5. 
 
 Cannin" v. Turner, 8!)8. 
 
 Cannot v. Morgan, 578. 
 
 Cannon, »•«, Gates v. Cannon, 762. 
 
 Cai)e Breton Cf>. v. Fenn, 301. 
 
 Caiies v. Brewer, 2!»1, 872. 
 
 Capital Fire Ins. Assn. Cc, re, 471. 
 
 Ca\)peleus v. Brown, 413. 
 
 Card V. Cooley, 35. 
 
 Card V. Cooley, 35. 
 
 Cardinall v. Cardinal!, 83, 100. 
 
 Card well v. Tomlins(m, 377. 
 
 Carew v. Clirist(ii)her, 412. 
 
 Carey v. Cutlil«'rt, 507. 
 
 Cargill V. Bower, 430, 447, 448, 453. 
 
 Carlisle v. Belfast Board, 572. 
 
 Carlytm v. Carlyon, 700. 
 
 Cannichael v. Ferris, 205. 
 
 Carnegie v. Cox, 538. 
 
 Carnegie v. Federal Bank, 487, .538. 
 
 Caroli V. Hirst. 436. 
 
 Carpenter v. Hamilton, 521. 
 
 Carjwnter v. Solicitor to the Treasury, 219. 
 
 Carpenter v. Wc 158, 105, 176, 760. 
 
 Carr v. Coulter, 0.50. 
 
 Carr v. t"'ire Assurance Association, 10, 231, 
 
 Carradice v. Curry, 185, .500. 
 
 Carrick v. Smith, 170. 
 
 CaT(jn Iron ("lo. v. Miiclaren, 297. 
 
 Carroll, w, 145, 043. 
 
 Carroll v. Carroll, 763, 768. 
 
 Carroll v. Kccles, 164. 
 
 Carroll v. Hopkins, 235, 30(5. 
 
 Carroll v. Roliertson, 103, 167, 170, 171, 
 
 227, 228. 
 Carroll v. Williams, 044. 
 Carron Iron Co. v. Maclaren, 2it7. 
 Carshore v. N. E. Ry. Co., 3(i3, 367. 
 Carta Para Cold Mining Co. v. Fastnedge, 
 
 631. 
 Carter, re, Carter v. Carter, 470. 
 Carter v. Barker, 578. 
 Carter v. Stewart, 880. 
 Carter v. Stubbs, 81, 481, 570. 691. 
 Carter v. Wake, 380. 
 Carthew, re, 033. 
 Cartsbum, The, 363, .368, .H70, 373. 
 
 
xxu 
 
 TABLE OF CASES CITED. 
 
 il 
 
 Carty v. London, 202 & 531) (rt(^/a),919, 1071 . 
 
 Carven, re, 933. 
 
 Carver v. Pinto Leite, 501. 
 
 Carvick v. Yo\ing, 310. 
 
 Cartwright, Avis, re, v. Newman, 16. 
 
 Cartwright v. Hinds, .517, 8.32. 
 
 Gary v. Cumberland, 55!). 
 
 Cary v. Hills, .34(). 
 
 Case V. Benson. (>23. 
 
 Case V. Midland Ry. Co., 2r)l. 
 
 Casey v. Arnott, 303. 
 
 Casey, re, Biddell v. Casey, 177, 5.50. 
 
 Casey v. C. P. Ry. Co., 008. 
 
 Casey v. Hellyer, 284. 
 
 Cashin v. Craddock, 445, 449, 490. 
 
 Casjier v. Keacliie, 722. 
 
 Cass V. Fitzgerald, 510. 
 
 Cassey v. Cassey, 23, 30. 
 
 Cassiopeia, Tiie, 400. 
 
 Casson v. Rolierts, 199, 202. 
 
 Cast V. Poyser, 179. 
 
 Castellain v. Preston, 200, 232. 
 
 Castle, re, 935. 
 
 Castrique v. Inirie, 87. 
 
 Castro V. Murray, 43. 
 
 Caswell V. Murray, 940, 942. 
 
 fJatell V. Simons, 225. 
 
 Catholic Printing Co. v. Wiman, .543. 
 
 Catlin, Tf, 4()(>. 
 
 Catling V. King, 440. 
 
 Catt V. Tourle, .50(). 
 
 Cattanach v. Urquhart, 104, 229, 31(). 
 
 Catton V. Bennett, 199, .303. 
 
 Caughill V. Clark, 440, 447, 448, 607. 
 
 Cauty V. Uyll, .570. 
 
 Cauty V. Houlditch, ,558. 
 
 Cavallier v. Micliael, 007. 
 
 Cavanagh v. Hastings Mutual, 609. 
 
 Cave V. Cave, 2.58. 
 
 Cave V. Torr, 431. 
 
 Caverhill, re, 79(), 800, 803. 
 
 Cawdor v. Lewis, 109. 
 
 Cayley v. ColU-rt, 200, ;«8. 
 
 Cayley v. Hodgson, 324, 372. 
 
 Cayley v. Sandycn)ft, 483. 
 
 Cecil V. Brigges, .580. 
 
 Central Bank v. Osborne, 414. 
 
 Central Africa Trading Co. v. Grove, 408. 
 
 Central Press Assoc, v. American Express, 
 4S1 & 740 (adda). 
 
 Central News v. Eastern Tel. Oi. 487, 504. 
 
 510, 511, 540. 
 Cerclo Restaurant Co. v. Lavery, 13. 
 Cha(iwick v. Bowman, 508. 
 Chadwick v. Thompson, 475. 
 Chalk v. Raine, 210, 643. 
 Chamberlain, re, 796, 797, 800, 802. 
 Chamberlain v. Armstrong, 000, 014. 
 C hamberlain v. Chamberlin, 405, 409, 449, 455. 
 Chamberlain v. Clarke, 700. 
 Chamberlain v. Sovars, 321. 
 Chamlierlain v. Stoneham, 1099 (nddit). 
 Chamberlen v. Clarke, 102, 776, 777. 
 Chamberlin v. Chamberlin, 405, 409. 
 Chambers, re, 27, 782. 
 Chaml:)ers v. Canaria Life. 3.32. 
 Chambers v. Goldwin, 172. * 
 Chambers v. Kingham, 48. 
 Chambers v. Unger, 945. 
 Chalmers v. Laurie, 352, 353. 
 Chalmers v. Pigott, 728. 
 Champion v. Formby, 457. 
 Chance v. Hendeason, 487. 
 Chandler, re, 258. 
 Chaplin v. Young, 16(i. 
 
 Chapman, re, 108(J. 
 
 Chapman v. Auckland, 58 
 
 Chapman v. Beach, 217. 
 
 Chapman v. Biggs, 74(i. 
 
 Chapman v. Day, 8()3. 
 
 Chapman v. Hicks, .571. 
 
 Chapman v. Mason, .580. 
 
 Cliapman v. Smith, .577. 
 
 Chappie, re, Newton v. Chapman, 173. 
 
 Chard v. Meyers, 189, 095. 
 
 Chard v. Rae, 325 & 350 {wlila), 701. 
 
 Charles, re, 210, 211. 
 
 Charles v. Jones, 74, 108, 231. 
 
 Charles v. Lewis, 808, 810. 
 
 Charles Napier, The, 41'.>. 
 
 Charlton v. Charlton, 9*5. 
 
 Charlton v. Combes, .503, 507. 
 
 Chattield v. Sedgewick, 41.5, 897. 
 
 Chatham & Dover E. v. The Erie & Huron 
 Ry. Co., 075. 
 
 Chatham Harvester Co. v. Campl)t'll, re, 
 714, 738, 740. 
 
 Chatterton v. Watney, 744, 750. 
 
 Cheale v. Kennard, 17. 
 
 Chennell, re, 899. 
 
 Clark, re, Cum 
 
TABLE OF CASES CITED. 
 
 XXIU 
 
 Cheniiell v. Martin, 184. 
 
 ( Chesterfield v. Black, 44S, 4r)3, 575. 
 
 Chesworth V. Hunt, 227. 
 
 Chees Carley Co. v. Rodger, 278. 
 
 ( 'liicheHter v. Donegall, 5()5. 
 
 Chichester v. (iordon, 740. 
 
 Chick V. Toronto Electric Liglit Co., 570 
 {(ul<la). 
 
 Child V. Stenning, 310, 380, 3K5, 900, 006. 
 
 Chilton V. London, ()43. 
 
 China Trans- Pacific S. S. Co. v. Commer- 
 cial Union, 498. 
 
 Cliinery, ex. p., 707. 
 
 Chipp V. Harris, 623. 
 
 Chippendale, ex p., ](>2. 
 
 Chisholm V. Allen, 383. 
 
 Chisholin v. Barnard, 165, l(i6, 173, 174. 
 
 Chisholm V. Sheldon, 16, 287. 
 
 Cholinoiideley v. Clinton, 258, 4(>9. 
 
 Chorlton V. Dickie, 309, 561, 593. 
 
 Chowick V. Dimes, 565. 
 
 Christiansborg, The, 44. 
 
 Christie, re, Christie v. Christie, 31, 71, 600. 
 
 Christie v. Christie, 445, 440, 
 
 Ciiristie v. Conway, 601, 881. 
 
 Christie v. Dowker, 38(5, 303. 
 
 Christie v. L(mg, 16. 
 
 Christmas, re, 647, 648. 
 
 Christmas v. Eicke, 811. 
 
 Christopher v. Noxon, 020, 022, 1097. 
 
 Christophers v. White, 173. 
 
 Church V. Barnett, 583. 
 
 Church V. Fuller, 394, 890, 906. 
 
 Church \. Marsh, 517. 
 
 Cluircher v. Bates, 169. 
 
 Churchill, re, 170. 
 
 Churchill v. Denham, 857. 
 
 Churten v. Frv<;wen, .506, 923. 
 
 Citizens Insuranne v. Campbell, 433. 
 
 Citizens Ins. Co. v. Parsons, 674. 
 
 City Bank v. Mj,ulsen, 175. 
 
 City Bank v. Scatchern, 768. 
 
 City Discount Co. v. McLean, 231. 
 
 City of Lucknow, The, 1098. 
 
 Clack V. Carlo w, 173. 
 
 Clagett, re, Fordham v. Clagett, 45, 79, 180, 
 188. 
 
 Claparade v. Commercial Union, 446. 
 
 Clarbrough v. Toothill, 10, 107. 
 
 Clark, re, Cumberland v. Clark, 781. 
 
 Clark V. Ashfield, 847. 
 
 Clark V. Baker, 308. 
 
 Clark V. Bogart, 236. 
 
 Clark V. Bradlaugh, 284. 
 
 Clarke v. Callow, 400, 410. 
 
 Clark V. Clark, 514, 747, 754, 780. 
 
 Clark V. Cliflford, 601. 
 
 Clark V. Cullen,'712, 
 
 Clark V. M(}lyneu:;, 641. 
 
 Clark V. McDonald, 127. 
 
 Clark V. Skiiiper, 83, 86. 
 
 Clark V. St. Catharines, 944. 
 
 Clarke, re, 66, 761, 928, 933. 
 
 Clarke v. Best, 321. 
 
 Clarke v. Berger, 282, ()26. 
 
 Clarke v. Bradlaugh, 272, 522. 
 
 Clarke v. Clarke, 352. 
 
 Clarke v. Cook, 39, 326. 
 
 Clarke v. Cookson, 83, 58.!. 
 
 Clarke v. Creighton, 337, 578. 
 
 Clarke v. Eceles, 469, 471. 
 
 Clarke v. Farrell, 877. 
 
 Clarke v. Hawke, 487. 
 
 Clarke v. Hurlburt, 6(»(i. 
 
 Clarke v. Jamieson, 26", (i95. 
 
 Clarke v. Langley, 208, 211. 
 
 (Harke v. Law, 543, 5.58. 
 
 Clarke v. McEwing, 401. 
 
 Clarke v. Palmer, 234. 
 
 Clarke v. Palmerston, re, 862. 
 
 Clarke v. Rama Timber Transyx)rt Co., fl44. 
 
 Clarke v. Union, etc. (Chabot's case), 549. 
 
 Clarke v. Wray, 381, 382, 447. 
 
 Clprke V. Yorke, 457. 
 
 Clarkson v. Attj'.-den, 180. 
 
 Clarkson v. Fire Ins. Ass., 487. 
 
 Clarkson v. Hendei-son, 228. 
 
 Clarkson v. Scott, 321, .386, 303, 643. 
 
 Clarksim v. Stirling, 790. 
 
 Clarkson v. White, 452. 
 
 Clarry v. B. N. Ass. Co., 97, 00. 
 
 Claydon v. Finch, 718. 
 
 Clayson v. Leech, 206. 
 
 Clayton v. Clarke, 15. 
 
 Clayton's Case, Devaignes \. Noble, 231. 
 
 Clayton Mill Mfg. Co. re, 81 {,i<lda). 
 
 Cleal V. Latham, 621. 
 
 Cleather v. Twisden, 249. 
 
 Clegg V. Clegg, 763. 
 
 Clegg V. Edmonson, 502, 503, 512. 
 
 U 
 
 I 
 
T? 
 
 XXIV 
 
 TABLE OF CASES CITED. 
 
 Clegg V. McNab, 841. 
 
 Clegg V. Rowland, 348. 
 
 Clelland, re, 916. 
 
 Clements v. Arnold, 37!). 
 
 Clements v. Kirby, 82i). 
 
 Clements v. Norris, 578. 
 
 Clench v. Dooley, 779, 81G, 87(i. 
 
 Clendcnuan v. Grant, 370. 
 
 Clendenning v. Varcoe, 543. 
 
 Cleveland v. McDonald, 326. 
 
 Cliflfe V. Wilkinson, 940, 947. 
 
 Clifford V. Budds, 030. 
 
 Clifford V. Burlington, 12. 
 
 Clifford V. Turrill, 471, 047. 
 
 Clinch V. Financial Corporation, 505. 
 
 Cline V. Cline, 250. 
 
 Cline V. Mo\mtain View Cheese Factory, 
 
 324. 
 Close V. Exchange Bank, 888. 
 Clouster v. McLean, 185, 185, (iOO. 
 Clover V. Wilts & West, etc. Co., 030. 
 Clow V. Clow, 10. 
 Clow V. Harper, 97, 99. 
 Clowes V. Hilliard, 401. 
 Clute & Williams, re, 92i). 
 Clutton V. Pardon, 409. 
 Coates V. Edmonson, 279. 
 Coates V. McGlashan, 81 (ndda). 
 Cobbett V. Field, 43. 
 Cobbett V. Warner, 941. 
 Cobbold V. Pryke, 42. 
 Cobum V. Collins, 434. 
 Coch V. Alcock, 177, 540, 548, 549. 
 Cochrane v. Boucher, 73. 
 Cochrane v. Fearon, 945. 
 Cochrane v. Hamilton Prov. L. H. 270. 
 Cochrane v. Lamon, 145. 
 Cochrane v. Morrison, 498, 529, 751. 
 Cochrane v. Willis, 420. 
 Cf)ckbum V. Edwards, 230, 895 
 Cockenour v. Bullock, 209, 387. 
 Cockle V. Joyce, 593, 664. 
 Cocks V. Edwards, 623. 
 Cocks V. Gray, 166. 
 
 Cockshott V. London Gen. Cab. Co., 593. 
 Coddington v. Jacksonville, Pensacola & 
 
 Mobile Ry. Co., 644, 871. 
 Codrington v. Parker. 216. 
 Cogent V. Gibson, 17. 
 Cogswell V. Sugden, 39. 
 
 Cohen v. Bulkley, 581. 
 
 Cohen V. Hale, 746. 
 
 Colbeck, re, Hall v. Colbeck, 357, 361. 
 
 Colboume v. Colbourne, 52. 
 
 Colboume v. Thomas, 1099. 
 
 Colclough V. Sterum, 2Vi. 
 
 Coldwell v.^Hall, 103, 164, 166, 179, 229. 
 
 232, 233. 
 Cole V. Beale, 942, 
 Cole V. Campbell, 059. 
 Cole V. Glover, 349, 705, 709. 
 Cole V. Hall, 223. 
 Cole V. Sherrard, 275. 
 Cole, Marchant & Co. v. Frith, 897. 
 Colebourae v. Coleboume, 52, 61, 214, 215, 
 
 270, 280. 
 Colegrave v. Manley, 470. 
 Coleman v. Glanville, 15. 
 Coleman v. Whitehead, 348. 
 Colenutt & Colchester, re, 516, addi. 
 Coles V. Civil Service Supply Ass. Co., 371. 
 CollamMl v. Flight, 417, 444. 
 Collard V. Bennett, 788. 
 CoUas v. Hesse, 331. 
 Colledge V. Pyke, 580. 
 College of Christ's Hospital v. Martin, 69. 
 CoUett v. Collett, 26. 
 Collett V. Dickenson, 335, 444. 
 Collett V. Preston, 418. 
 Collette V. Goode, 434, 446, 447. 
 Collie, re, 304. 
 Collins v. Carey, 173. 
 Collins v. Denison, 201, 353. 
 Collins V. Hickok, 029. 
 Collins v. Martin, 782. 
 Collins V. Orme, 644. 
 Collins V. Stinson, 202. 
 Collins V. Swindle, 13. 
 Collins V. Vestry of Paddington, 77, 81. 
 Collins V. Welch, 898, 899. 
 Collins V. Worley, 1086, 
 Colls V. Robins, 301. 
 Collver V. Swayzie, 144, 331, 524. 
 Collyer v. Fallon, 718. 
 Colmer v. Ede. 469. 
 Colonial Ins. Corp. v. Prosser, 432. 
 Colonial Trusts Co. v. Cameron, 173, 596, 
 
 657. 
 Colter v. McPherson, 483. 
 Colton. re, Fisher v. Colton, 330, 709. 
 
TABLE OF CASES CITED. 
 
 WT 
 
 Colthart, re, 782. 
 
 Colverson v. Bloomfield, 825). 
 
 Colyer v. Colyer, 353. 
 
 Combe v. Pitt, 808. 
 
 Cdinbined WeighiiiK & Advertising Ma- 
 
 cliine Co., 749 (addn). 
 Coii'.mercial Jiank v. Fletcher, G22. 
 Coimnercial liaiik v. (iraham, 1.5G, .3!(1, 
 
 ()4(i. 
 Coinmercial Bank v. .Tarvis, 744. 
 Coimnercial Bank v. McConnell, 201, 207. 
 roimnercial liank v. W(xxlruff, 023. 
 ronimerell v. Poynton, 470. 
 ('ouiiiiinsioner.s of Colxjurg, re, 174. 
 Cciinmissioners of London v. (lillatly, 328. 
 C()ininin.><ioners of Railways v. Brown, (t()2. 
 Coininissioners of Sewers v. (Jellatly, 341. 
 ('(piiiiiiissioners of Sewers v. (rlass, 431, .^OS. 
 Comniissioners of Waterford v. Veale, 371 . 
 Coiiii>agnie Kinanciere, etc. v. Foruviaii 
 
 (iuano Co., 484, .501, .")03, .510. 
 Coinpton, re, Xorton v. Coiupton, 547. 
 C(jni|)ton V. Preston, 382, 410. ■ 
 Comstock V. Harris, 4a5, 4S(J, 4!K), 401, 402. 
 Concha v. Concha, 542. 
 Condor, The, 8!)3. 
 Coney v. Bennett, 708. 
 Conger v. McKechnie, 550. 
 Conmee v. C. P. Ry., 8(i, 07, 407, 400, 
 
 .507, i'^1, (SO, (>73. 
 Conn V. (iarland, 718. 
 Connolan v. Lay land, SSti. 
 Connors v. Birmingham, 127, 128. 
 Conolly V. O'Reilly, ti75. 
 ConoUy V. Hill, 014, 10<iO. 
 Connors v. Squires, 472. 
 Cowden v. Pullman, (M!. 
 Consett V. Bell, 340. 
 
 Consolidated Bank v. Bickford, 723, 037. 
 Consolidated Bank v. Neilon, 484. 
 < 'ons<ilidated Bank v. Wallbridge, 030. 
 Const V. Harris, 217. 
 Constable v. Constable, (i4. 
 Cimstable v. Guest, 171, 228. 
 Constable v. Howick, 391. 
 Converue v. Michie, 223. 
 Conway v. Fenton, 1«9. 
 Conybearo v. Lewis, 341, 4<50. 573. 
 C(x)k V. Benbow, 102. 
 C»K)k V. Broumhead, 599. 
 J.A. 
 
 Cook V. Boulton, 154. 
 
 Cook V. Credit Valley Ry. Co., 711, 714. 
 
 Cook V. Dey, 291, 
 
 Cook V. Enchmarch, 382. 
 
 C<K)k V. Fearn, 342. 
 
 C<x)k V. Flood, 38R. ' 
 
 Cook V. Fowler, 228. 
 
 Cook V. Fryer, 340. 
 
 Cook V. Gittings, 340. 
 
 C(K>k V. Grant, 47, 7(51. 
 
 Cook V. Heynes, (543. 
 
 Cook V. Lemieux, (543. 
 
 C(x)k V. Martyn, 43t'' 
 
 Cook V. Patterson, 3.5. 
 
 Cook V. Tomlinson, 53(5. 
 
 Ccxike V. Fowler, 773. 
 
 Cooke V. Newcastle, 100, 101. 
 
 Cooke V. Oceanic Sleam Co., 1((7, -500. 
 
 Cooley V. Smith, 212. 
 
 Coolidge V. Bank of Montreal, 70(5. 
 
 Cooney v. Girvin, 33.5. 
 
 Co<mey v. Nichols, (570. 
 
 Cwiier V. Blissett, 271. 
 
 Coojier V. Brayne, 749. 
 
 C<M)i)er V. Central Ontario Ry., 71, -584. 
 
 Cooler V. Coojjer, (572. 
 
 Coofjer, re, Cf»oi3er v. Vesey, 342. 
 
 Cooi)er V. Crabtree, 58. 
 
 Coojjer V. Dixon, (587, (588. 
 
 C<x)per V. Ewart, 928. 
 
 Cooper V. Grant, (523. 
 
 Cooler V. Hewson 471. 
 
 Cooper V. Ince, Hall & Co., 873, 874. 
 
 Coojjer V. Kirkpatrick, 944. 
 
 C(X)i)er V. Lane, 306. 
 
 Cooper V. Vesey, 31, 325, 899. 
 
 Cooper V. Whittington, 893. 
 
 Coots V. Coots, 4{M5. 
 
 Copeland v. Blenheim, 895. 
 
 Copley V. Jackson, 430. 
 
 CJopp, re, 51(5. 
 
 Corbet V. .Johnston, 853. 
 
 Corby v. McDaniel, 20. 
 
 Corby v. Robbin, 5.55, 
 
 Corcoran v. Robb, 430. 
 
 Coren v. Banie, 742, 
 
 Corham v. Kingston. 231, 
 
 Comiack v. Beisly, 471. 
 
 Cormack v. Grofrian, 3.58. 
 
 Corniicks, re, 21.5. 
 
XXVI 
 
 TABLE OF OASES CITED. 
 
 Corner v. Shew, 384. 
 
 Cornish, re, 145. 
 
 Cornish v. Manning, 274, 311, 470, 00(5. 
 
 Cornwall, re, 934, 942. 
 
 Cornwall v. Henriotl, 322, 397. 
 
 Corporation of Cork v. Kooney, 55, 50, 59. 
 
 Corporation of Hastings v. Ivall, 500, 509. 
 
 Corporation of Peterboro v. Wilsthorpe, 34. 
 
 Corporation of Preston v. Fullwootl, 580. 
 
 Corrie v. Allen, 307, 308, 370. 
 
 Corrigal v. Henry, 348. 
 
 Corsellis, re, Lowton v. Elwes, 173, 498, 
 
 1069. 
 Corsellis v. Patman, 389. 
 Cosgrove v. C-jrbett, 18. 
 Cossey v. Ducklow, 402. 
 Cossey v. London, Brighton, etc., Co., 500. 
 Cotton V. Corby, 073. 
 Cotton V. Houseman, 284, 403. 
 CotJton V. Rodgers, 578. 
 Cotton V. Vansittart, 180, 747. 
 Cottingham v. Cottingham,205, 255, 334. 
 Cotter V. Cotter, 150. 
 Cotton V. Corby, 072, 687. 
 Cottrell V. Cottrell, 213. 
 Coughlan v. Hollingsworth, 896. 
 Coulboum V. Carshaw, 290, 291. 
 Coulson V. Spiers, 2, 881. 
 Coulton, re, 459, 478. 
 Coulton, re, Hamling v. Elliott, 477, 478. 
 Counter v. Wylde, 391. 
 Courcier v. Courcier, 108, 780. 
 Court V. Holland, 167, 168, 178, 179, 184, 
 
 188, 225, 232, 448. 
 Court V. Scott, 88. 
 Courtney v. Stocks, 599. 
 Courtoy v. Vinceni, 255. 
 Cousinp;'-! v ^ '.y of London F. Ins. Co., 
 . ':, ''.=;^- 917, 1070. 
 
 V •«. 737, 749, 750. 
 
 li ..-e. 128. 
 
 . '-',743, 744. 
 
 • .'. : Virth, 912. 
 Cowell V. Taylor, 944. 
 Cowell V. Simpson, 470, 471. 
 Cowper V. Taylor. 719. 
 Cox V. Barker, 320, 379, 385, 420. 
 Cox V. Barnard, 326, 327. 
 Cox V. Cannon: 623. 
 Cox V. James, 360. 
 
 n 
 
 i 
 
 Cc .. u.' ■'. 
 
 CowV»nrD, 
 
 Cox V. Keating, 417. 
 
 Cox. V. Lord Forester, 443. 
 
 Cox V. Taylor, 32J>. 
 
 Cox V. Wright, 333. 
 
 Coyne v. Broddy, 47 ((ulilnj. 
 
 Cozen V. McDougal, 09.5. 
 
 Cozens v. Ritchie, 832. 
 
 Crackelt v. Bethune, 1.59. 
 
 Cracknall v. Jansjm, 445„449. 
 
 Cradock v. Piper, 173. 
 
 Craig V. Craig, 519, 877. 
 
 Craig V. Phillips, 81. 
 
 Craig V. Temi)leton, 14. 
 
 Cramer, ex parte, 330. 
 
 Crandell v. Crandell, 280, 519. 
 
 Crandell v. Moon, 178. 
 
 Crane v. Craig, 784. 
 
 Crane v. JuUion, 291, 311. 
 
 Crane v. Loftus, 504. 
 
 Craven v. Ingham, 693. 
 
 Crawcour v. Salter, 79. 
 
 Crawford v. Annour, 387. 
 
 Crawford v. Beard, 233. 
 
 Crawford v. Boyd, 197, 200, 201. 
 
 Crawford v. Crawford, 375, 370. 
 
 Crawford & Crombie, re, 933. 
 
 Crawford v. Gammill, 316, 642. 
 
 Crawford v. Lundy, 914. 
 
 Crawfor.l v. Meldrum, 1.52, 153. 
 
 Crawford v. Levey, re 902. 
 
 Crawshay v. Collins, 100. 
 
 Creaton v. Midland G. W. Ry. Co., 325. 
 
 Credit Co., re, 611. 
 
 Credit (jrerundeuse v. VanWeede, 301, 877. 
 
 Creen v. Wright, 895. 
 
 Cremetti v. Crom, 707, 735. 
 
 Crerar & Muir, Re, 932. 
 
 Cresswell v. Byron, 471. 
 
 Cresy v. Bevan, 420. 
 
 Cresswell v. Parker, 304. 
 
 Creswick v. Thompson, 194, 200. 
 
 Crick V. Hewlett, 577, 590. 
 
 Crippen v. Ogilvio, 539. 
 
 Cripps V. Tappin, 343. 
 
 Crisford v. Dodds, 619. 
 
 Crispin v. Cumano, 718. 
 
 Crippen v. Ogilvy, 163. 
 
 Crockett v. Bishton, 554. 
 
 Croft V. CoUingwood, 644. 
 
 Croft V. Egmont, 624. 
 
 ■ 1 • ; 
 
 :■' .ii i 
 
TABLE OF CASES CITED. 
 
 XXVll 
 
 Croft V. Goldsmith, 21. 
 
 Croft V. Lumley, 314. 
 
 Croft V. Watertown, 331. 
 
 Croggan v. Allan, 8(>!l. 
 
 Crom V. Samuels, 481. 
 
 Crone v. Crone, 1G2. 
 
 Cronk v. Cronk, 23. 
 
 Cronyn, re, fl32. 
 
 Cronyn v. Griffiths, 20. 
 
 Cronyn v. Widder, 20. 
 
 Cr(X)k.s V. Crooks, 200, 7«2. 
 
 Crooks V. Davis, 201. 
 
 Crooks V. (Jlen, 190, li)9, 202, 207. 
 
 Crooks V. Street, 202, 206, 236, 694. 
 
 Crooks V. Stroud, 739. 
 
 Crooks V. Watkins, 1.53, 223, 762. 
 
 CropiJer v. Mellersh, 326, 327. 
 
 Cropi)er v. Smith, 343, 432, 446, 447, 671. 
 
 Cropi^r V. Warner, 880. 
 
 Crosbie v. Fenn, 222, 223. 
 
 Cross, re, 470. 
 
 Cross V. Cross, 333, .'519. 
 
 Cross V. Kerry, 19. 
 
 Crosley, re, 82. 
 
 Crossley, re, Muiison v. liurn, 80. 
 
 Crossfield v. Gould, .51. 
 
 Cross-Harston, re, 327. 
 
 Crossman v. Shears, 637. 
 
 Crowe V. Bank of Ireland, 498. 
 
 Crowe V. Bamicot, 410, 447. 
 
 Crowe V. Price, 74.5. 
 
 Crowe V. Steeper, 188, 696, 918. 
 
 Crowle V. Russell, 42, 43. 
 
 Crowter, re, Crowter v. Minsman, 161, 165, 
 
 166. 
 Crowther v Boult, 893, 950. 
 Crozier v. Alkenbach, 644. 
 Cruickshank v. Floating Swimming Bath 
 
 Co., 95, 97. 
 Crumley v. Kingston, 374. 
 Crump V. Cavendish, 631, 632. 
 Cruse V. Kuttingell, 293. 
 Cruso V. Bond, 396. 
 Cudney v. Cudney, 161. 
 Cuerrier v. White, 935. 
 Cullen V. CuUen, 706. 
 Culley, ex parte, 50. 
 Culverhouse v. Wickens, 754. 
 Culverwell v. Bimey, 486. 
 Cumber v. Wane. 52. 
 
 Cumberland v. Keams, 204 (addtij- 
 
 Cuming to Boldbolt, re, 194. 
 
 Cum,ner v. Tomlinson, 391. 
 
 Cummins v. Fletchar, 227. 
 
 Cummins v. Harrison, 323. 
 
 Ckmiiiiing v. Low, 9.5^97, 98; KM), 101. 
 
 Cumn lings, re, 79.5. 
 
 Cumniings v. Usher, 231. 
 
 Cunningham, re, 715. 
 
 Cunniagham v. Lyster, 370. 
 
 Cunningham v. Pearce, 315. 
 
 Cunniiigton v. G. N. Ry. Co., 419. 
 
 Cui)ples V. Yorston, 290. 
 
 Curlinj: v. Austin, 645. 
 
 Curran v. Little, 205. 
 
 Currie, re, 258. 
 
 Curry, .-e, 145, 644. 
 
 Curry \. Twiner, 833. , 
 
 Curtis \ . Ooleman, 780. 
 
 Curtis \ . MoNabb, 945. 
 
 Curtis V. Sheffield, 81, 82, 565. 
 
 Curtius V. Caledonian, etc. Ins., 32<.», 330. 
 
 Curwin v. Milburn, 931. 
 
 Cushman v. Reid, 93. 
 
 Cuthbert v. Commercial Travellers' Asa., 
 
 324, 172, 915, 916, 917. 
 Cuthbert v. Cuthbert, 779. 
 Cuthbert v. Whannby, 178, 774. 
 Cutts, re, 258. 
 Cutler v. Morse, 406, 895. 
 
 Dagg V. Oagg, 165, 175, 772. 
 
 Daggett V. Ryman, 17. 
 
 Dakin v. Coi)e, 168. 
 
 Dalby v. Humphrey, 228, 773. 
 
 Dalby v. Pnllen, 192. 
 
 Dale v. Coon, 442, 443. 
 
 Dale V. Etamilton, 192. 
 
 Daley v. Gehl, 726 {adda), 728 (,idda). 
 
 Dalglish >: McCarthy, 788. 
 
 Dallas v. Glyn, 714. 
 
 Dallinger v. St. Albyn, 453. 
 
 Dalton V. St. Mary Abbotts, 357. 
 
 Daly V. Daly, 334. 
 
 Dalziel v. 6. T. Ry. Co., 484. 
 
 Damant v Hennell, 334. 
 
 Damer v. Busby, 832, 834. 
 
 Dames v. Wood, 194. 
 
 Danaher v. Little, 902. 
 
 Dance V. (roldingham, 194, 349. 
 
j 1, 
 
 ill 
 
 
 XXVIU 
 
 TABLE OF OASES CITED. 
 
 DanfoKl V. McAnulty, 441, 442. 
 
 Dangar, re, 249. 
 
 Daniel v. Ford, 483, 493, 504. 
 
 Daniell v. Sinclair, 228. 
 
 Dar y v. Ureenlees, 202, 207. 
 
 Oarby v. Toronto, 894. 
 
 Darcy v. Whittaker, 270. 
 
 Darling v. CoUatUm, 87(5, 877. 
 
 Darling v. Darling, 178, 352, 499, 'AU, 550, 
 
 Darling v. Rice, 337. 
 
 Darling v. Smith, 849. j 
 
 Darling v. Wilson, 322, ' t. 
 
 1 )arling v. Wrigiit, (559. 
 
 Darlington v. Hamilton, 211. 
 
 Darnley v. London, Chatham and Dover 
 
 Ry., 14. 
 Darrant v. Ricketts, 338, (127. 
 Dart V. Citizens Ins. Co., 289, 308, 403. 
 1 )artmouth v. Mayor of Dartmouth, 945. 
 Daubney v. Leak, 3.52. 
 Daubney v. Shuttleworth, 477, 478, 019. 
 Daubuz V. Lavington, 284. 
 DaubuK V. Peel, 354. 
 
 Daun V. Simmins, 598, (Ml. 
 
 Dauvillier v. Myers, 491, 498, .52J). 
 
 1 )avenport v. Charsley, 201. 
 
 Davenport v. Stafford, 160, (i4(>. 
 
 Davenport v. Ward, ()37. 
 
 Davey v. Durant, 170, 171, 544. 
 
 Davey v. Garrett, 320, 'i:]9. 
 
 Davidson v. Boomer, 19, 162. 
 
 Davidson v. Douglas, 471, 747. 
 
 Davidson v. Grant, 555. 
 
 Davidson v. Leslie, 467. 
 
 Davidson v. McGuire, 789. 
 
 Davidson v. Thirkell, 162, 167. 
 
 Davies, re, 55, 728, 729. 
 
 Davies v. Andrews, 561, 721. 
 
 Davies v. Boulcott, 330. 
 
 Davies v. Glough, 469. 
 
 Davies v. Felix, 598, 667. 
 
 Davie« v. Garland, 277. 
 
 Davies v. Hubbard, 479. 
 
 Daviea v. Loundes, 88. 
 
 Davies v. Marshall, 872. 
 
 Davies v. Morgan, 811. 
 
 Davies v. Smith, (345. 
 
 Daries v. Williams, 126. 
 
 Davies v. Wright, 351. 
 
 Daviea & York, re, 479, {adda); 517, {addu). 
 
 Davis, ri', 15, 525. 
 
 Davis V. Ballend(*n, (J(J7. 
 
 Davis V. Bellenden, 338, 607. 
 
 Davis v. Chanter, 331, 332. 
 
 Davis v. Code, (52.5. 
 
 Davis V. Combennere, 1.57. 
 
 Davis V. Davis, 6.55, 718. 
 
 Davis v. Duke of Marlborotigh. 21H. 
 
 Davis V. Flagstaff Mining Co., 128. 
 
 Davis V. (lalmoye, 714. 
 
 Davis v. Henderson, 800. 
 
 Davis V. .Tames, 442. 
 
 Davis V. Lound, 293. 
 
 Davis v. Manley, 235. 
 
 Davis v. May, 163. 
 
 Davis v. Morris, 343, 712. 
 
 Davis v. Murray, 584, .585. 
 
 Davis v. Prout, 335. 
 
 Davis v. Si)ence, 633. 
 
 Davis v. Shepstone, 508, (tidihi)^ 
 
 Davis v. Snyder, 170. 
 
 Davis V. VanNorman, 534, 603.. 
 
 Davis V. West, 21. 
 
 Davis V. White, 236. 
 
 Davis V. Wickson, 107, 487. 
 
 Davis V. Yeo, 430. 
 I Davy, re, 932. 
 I Davy v. Davy, 492. 
 
 Davy V. Garrett, 437, 445, 44<.t, 450. 
 
 Davys v. Richardson, .571. 
 
 Daw V. Eley, 503. 
 
 Dawes, exjiarte, re, Moon, 78. 
 
 Dawes v. Thornton, 371. 
 
 Dawkins v. Antrobus, 57. 
 
 Dawkins v. I^ord Penrhyn, 422, 425, 435, 
 440. 
 
 Dawkins v. Saxe Weimar, 43. 
 
 Dawkins v. Simonetti, 57. 
 
 Dawson, re, Johnston v. Hill, 375. 
 
 Dawson v. Beeson, 459, 477, 520 ((id<la), 
 
 Dawson v. Fox, 78, 668. 
 
 Dawson v. Graham, .50, 350. 
 
 Dawson v. Moffatt, 255, 256, 91(5. 
 
 Dawson v. Shepherd, 372, 5K)6. 
 
 Day V. Beatty, 373. 
 
 Day V. Brown, 35. 
 
 Day V. Brownrigg, 55, 423. 
 
 Day V. McLea, 52. 
 
 Day V. Radolifife, 325, 327, 359, 385. 
 
 Dayei> v. Robertson, 481, 490, 690> 
 
 1 'J 
 
TABLE OF OABES CITED. 
 
 XXIX 
 
 Dayfoot V. Byrena, 738, 
 
 Deacon v. Dolby, 98, 100, 101. 
 
 Deal V. Potter, 853. 
 
 Dean v. Lamprey, 940. 
 
 Dean v. Ont. Cotton Mill Co., r)9((. 
 
 Dean v. Wilson, 192. 
 
 Deane, in re, Bridger v. Deane, KiO. 
 
 Dean of St. Paul, exp. m\, ($.52. 
 
 Dear v. Sworder, 407, 408, 411. 
 
 Bearing, re Mitchell v. Bearing, 7<i3. 
 
 r)ebenham v. Wardroper, 79. 
 
 De Blaquiere v. Armntrong, G95. 
 
 Deedes v. Graham, 162. 
 
 De Forrest v. Bunnell, 554, 555. 
 
 De Francesco v. Barnum, 15 & iV), {addn). 
 
 DeCiendre v. BogarduH, 461. 
 
 DeHart v. Stevenson, 340, 3.57. 
 
 De Hertel v. Supple, 162. 
 
 DeJongh v. Newman, 619. 
 
 Delafield v. Tanner, 607. 
 
 Delagoa Ry. Co., He, 77. 
 
 Delaney v. Delaney, viM. 
 
 Delaney v. McLellan, 944. 
 
 Delanty, re, 786. 
 
 Delaronde, re, 347. 
 
 De la Pole v. Dick, 4«), 467, 469, 473. 
 
 Deliinxiue v. Oxenholme & Co., 921. 
 
 Delavante v. Child, 540. 
 
 Delisle v. DeGrand, 831. 
 
 Delisle v. McCaw, .327. 
 
 Deller v. Prickett, 5)45. 
 
 Delmar v. Freeinantle, 516. 
 
 DeManneville v. DeManneville. 715. 
 
 DeMora v. Concha, 542. 
 
 Demorest v. Midland Ry. Co., «)43, 711, 
 
 716, 717, 861, 8«56. 
 Dempster v. Purnell, 950. 
 Dendy v. Dendy, 5(]3. 
 Denham v. Gooch, .578, (udda), 
 Denison v. Denison, 1.5(i,174, 175, 694, 771. 
 Denison v. Devlin, 478. 
 Denison v. Fuller, 207. 
 Denison v. Hardings, 29<i. 
 Denmark v. McConaghy, 87, 486. 
 Dennis, re, 779. 
 Dennis t. Crompton, 382. 
 Dennis v. Seymour, 631. 
 DenniRon v. Kenm^dy, 16. 
 Dent V. Dent, 718, 746. 
 Dent V. Sovereign Life Ass. Co., 588. 
 
 Depuy v. Welsford, 334. 
 Derbon, re, 381, 459. 
 De Rojas v. Michael, 625, 626 (wlda). 
 Desborough v. Rawliugs, .507. 
 Dessilla v. Schunok, :i80, 385. 
 Devey v. Thornton. 540. 
 Devereux v. Kearns, 779. 
 Devonsher v. Newenham, 421, 
 Dewalt V. Hughitt, 485. 
 Lewhirst v. Pearson, 834. 
 De Windt v. De Windt, 39. 
 Dewitt V. Thomas, 212. 
 Dey V. Dey, 347, 767. 
 Deykin v. Coleman, 477, 478. 
 D'Hormusjee v. Grey, 318, 942. 
 Diamond v. Cartwright, 832. 
 Diamond v. Sutton, 302, 308. 
 Dibbs v. Goren, 348. 
 Dickenson v. DuflBl, 943. 
 Dicker v. Clarke, 290. 
 Dickey v. Heron, 201, 554. 
 Dickinson v. Burrell, 323. 
 Dicks V. Brooks, 692. 
 Dicks V. Yates, 75, 573, 893, 894. 
 Dickson, re, 65, 795, 797. 
 Dickson v. Avery, 695. 
 Dicksnn v. Covert, 486. 
 Dickson v. Drajjcr, 327. 
 Dickson v. Jacques, 20. 
 Dickson v. McMahon, 851. 
 Dickson v. Neath, &c., Ry. Co., 73<>. 
 Dilk v. Douglas, 223, 327. 
 Dilke v. Douglas, 79, 327. 
 Dillon, re, 13. 
 
 Dillon V. Cunningham, 740. 
 Dillon V. Lord Mountcashel, 215. 
 Dillon V. Raleigh, 341. 
 Dimes v. Grand Junction Ry. Ct ., 8. 
 Dineen, re, Hughes v. Dineen, 769. 
 Dinham v. Bradford, 162. 
 Dingman v. Hall, 656, (adda), 693. 
 Dinn v. Brandon, 501. 
 Direct U. S. Cable Co. v. Dom. Tel. Co. , 44. 
 Disher v. Disher, 847. 
 Dix v. Groom, 615, 617. 
 Dix V. G. T. Ry. Co., 3.59. 
 Dixon, re, 338. 
 Dixon v. Dougan, 280. 
 Dixon V. Farrer, 588. 
 ' Dixon v. Pyner, 192. 
 
XXX 
 
 TABLE OF CASES CITED. 
 
 I i: 
 
 Dobie V. Lemon, 631. 
 
 Doble V. Manley, 235. 
 
 Dubson V. Blaokmure, 862. 
 
 Dtibson V. Dobson, 486, 4!)8, 500, 510. 
 
 Dc.bson V. Land, 163, 172, 227. 
 
 Dobson V. MarBhall, 107, 291, 306, 523. 
 
 Docker v. Somes, 160. 
 
 Dockatader v. Phipps, 412. 
 
 Dtxlds V. Attorney-General, 807. 
 
 Dddds V. Shepherd, 668. 
 
 Dodds V. St. Luke, 55». 
 
 Dodge V. Clapp, '.m. 
 
 Dodson V. Sammell, 350. 
 
 Doe d. Anderson v. Todd, 19. 
 
 Doe d. Arnold v. Auldjo, 663. 
 
 ])oe d. Boulton v. Switzer, 1098. 
 
 Doe Bumham v. Simmonds, 727. 
 
 Doe d. Dissett v, McLeod, 729. 
 
 Doe d. Greenshields v. Garrow, 727. 
 
 Doe d. Lyons v. Crawford ,602. 
 
 Doe d. Peck v. Rfje, 705. 
 
 Doe. d. Spafford v. Brown, 729. 
 
 Doerr v. Rand, 940, 942. 948. 
 
 Doherty v. Allman, 55. 
 
 Dolland v. Jfihnson, 258. 
 
 Dollman v. Jones, 667. 
 
 Dolphin V. Layton, 744. 
 
 Dominion ^ank v. Cowan, 790. 
 
 Dominion Bank v. Doddridge, 316, 474. 
 
 Dominion Bank v. Hefferman, 925. 
 
 Dominion S. & I. Co. v. Kilroy 497, 521, 
 
 878. 
 Dominion S. & I. Co. v. Kittridge, 227, 2.33. 
 Dominion, &c., v. Stinson, 551, 912, 920, 
 
 921. 
 Domville v. Berrington, 197. 
 Domville v. Lamb, 28. 
 Donaldson, re, 172, 173, 1069. 
 Donaldson v. Donaldson, 29. 
 Donaldson v. Berry, 25. 
 Donnelly v. Jones, 520, 521, 677, 946. 
 Doner v. Ross, 766. 
 Donne v. Lewis, 648. 
 Donegan v. Short, 831. 
 Donohue v. Warmoll, 930. 
 Donovan, re, 673. 
 Donovan v. Bacon, 748. 
 Donovan v. Boultbee, 577, 590, 691. 
 Donovan v. Herbert, 800. 
 Doody v. Higgins, 346, SijS. 
 
 Doremus v. Kennedy, 290. 
 
 Domyn v. Fraliok, 395. 
 
 Doubledee v. Credit Valley Ry. Co., 92B. 
 
 Dougall V. Stapleton, 495. 
 
 Douglas V. Hutchinson, 98, 335. 
 
 Dougherty, iv, 802, Sm. 
 
 Doujje V. Stewart, 167. 
 
 Dovey v. Irwin, 434, 643. 
 
 Dowe V. Dickenson, 662. 
 
 Dowdell V. Australian Royal Mail, S. N. 
 
 & Co., 920. 
 Dowdeswell v. Dowdeswell, 46, 329, 348. 
 Dc^wling V. Bettjemann, 17. 
 Dowling V. Dowling, 39. 
 Downes v. Fletcher, 338. 
 Downes v. Somerville, 78. 
 Downey v. Dennis, 194. 
 Downey v. Parnell, 228. 
 Downey v. Roaf, 189, 536, 646, 69<}, 801. 
 Downing v. Falmouth, 496. 
 Doyle v. Anderson, 581. 
 Doyle v. Blake, 165, 34& 
 Doyle V. Douglas, 581. 
 Doyle V. Kaufman, 277, 402, 482. 
 Doyle V. Lasher, 878, 879. 
 Doyle V. Owen Sound Priiitinp Co., 404.. 
 Drage v. Hartopp, 359. 
 Draggon, re, 351, 766, 770. 
 Drake, ex parte, 710. 
 Drake, re, 931. 
 Drake v. Wigle, 16, 168. 
 Drakes Patent Concrete v. Dower, 68. 
 Dresser v. Johns, 745. 
 Drewitt v. Drewitt, 536, 537. 
 Dreyfus v. Peruvian Guano Co., 17, ^i* 
 
 riuMa), 482. 
 Driver v. Canada Permanent L. & S. Co., 
 
 372. 
 Drummond v. Anderson, 647, 648. 
 Dryden v. Frost, 554. 
 Dubout V. Macpherson, 301, 366. 
 Duckett V. Gover, 360, 361, 461. 
 Duckett v. Jones, 400, 433. 
 Dudley v. Berczy, 167, 205, 613, 695. 
 Dufaur, re, 466. 
 Duff V. Barrett, 80. 
 Duffil V. Dickinstm, 686. 
 Duffns V. Seullin, 940. 
 Duffy V. O'Connor, 294. 
 Duke of Northumberland v. Todd, .554. 
 
 i 'm 
 
TABLE OF OASES CITED. 
 
 XXXI 
 
 Duggan V. McKay, 363, 657. 
 
 Diimble v. Cobourg and Peterborough Ry. 
 
 Co. 5m, 657. 
 Diimble v. Larush, 152. 
 Ihiraoulin v. Langtry, 698. 
 Dunbar v. Meek, 447. 
 rtiincnn v. Cassion. 881. 
 fdmcan v. Lees, 877, 878. 
 Duncan v. Vereker, 441>. 
 Duncuft V. Albrecht, 17. 
 Dundas v. Darvill, 878. 
 Dundas v. Gilmour, 3(W, 370, 373. 
 DiiiidiiM V. .TohnHon, 800. 
 UundaH v. Hamilton & Milton Road Co., 
 
 673, 719. 
 Dundonald v. MaHterman, 249. 
 Dunham, re, 805. 
 
 Dunkirk Colliery Co. v. Lever, !Mi, 97, 98. 
 Dunlevy, re, 765, 769. 
 Dunn V. Attorney -(jreneral, 3S7, 392. 
 Duim V. Ferrior, 59. 
 Diuni V. Flood, 194, 206. 
 Dunn V. McLean, 451, 481, 491, 492, 554, 
 
 (k)5. 
 
 Dunn V. Vere, 199. 
 Dunn V. O'Reilly, 20. 
 Dunsford, r?, .5.39. 
 Dunsford v. Carlisle, 492. 
 Dunthome v. Bunbury, 472. 
 Dupont V. Crook, 943. 
 Durling v. Lawrence, 451. 
 Durnin v. McLean, 902. 
 Durrant v. Blurton, 623. 
 Durrant v. Ricketts, 337. 
 Dutton V. ThompHon, 74, 899. 
 Dyer, re, Dyer v. Paynter, 779, 
 Dyer v. Hargravex, 168. 
 Dyer v. Painter, 564, 565. 
 Dyke v. Cannell, 101, 516. 
 Dyke v. Stephens, 497, 498. 
 Dyment v. Jerrett. 740. 
 Dymond v. Croft, 293, 474, 478. 
 Dynevor, re, 565. 
 Dynev'or & Duflfren Collieries, re, 2. 
 
 K. V. C. 311, 
 
 Eade v. Jacobs, 431, .500. 
 Kadie v. Addison, .506. 
 Eadie v. McEwen, 654. 
 Kager, re. 299. 
 
 Eager v. Buckley, 292. 
 
 Eagles, re, 624. 
 
 Eakins v. Fraser, 623. 
 
 Eames v. Brady, 541. 
 
 Eardley v. Knight, 228 {adda). 
 
 Earl of Glengall v. Frazer, 502. 
 
 Earl of Lewis v. Bamett, 716. 
 
 Earl of Stamford, re. Savage v. Payne, 568. 
 
 Earl of Strathmore, ex parte, 707. 
 
 Earl of Tyrone v. Waterford, 531. 
 
 Earp v. Henderson, 441. 
 
 East Assam, etc., v. Roche, 630. 
 
 Easter v. Edwards, 840. 
 
 Eastland v. Burchell, 641. 
 
 Eastman v. Eastman, 340. 
 
 Eaton V. Storer, 418. 
 
 Elierts v. Eberts, 760, 768. 
 
 Ebrard v. Gassier, 943. 
 
 Ebsworth & Tidy, re, 20i) {adda). 
 
 Eccles, re, 930. 
 
 Eccles & Carroll, re, 931. 
 
 Eccles v. Lowry, 326, 328, 330, 766. 
 
 Eckersley v. Eckersley, (i54. 
 
 Edd V. Winsor, 74. 
 
 Edell V, Cave, 311, 496. 
 
 Eden V. Naish, 43, 46. 
 
 Eden v. Weardale, 365, 368, 416, 484, 4!»7, 
 
 499. 
 Edevain v. Cohen, 447. 
 Edjfington v. Proudman, 572. 
 Edinburgh Life Ass, v, Allen, 177, 226, 
 
 346, 350, 761. 
 Edison v. Holland, 364, im, MS, 369, .372, 
 
 373. 
 Edison Telephone Co, v. India Rubber Co., 
 
 447. 
 Edmunds v. Atty.-Gen., 43. 
 Edmunds v. Hooey, 601. 
 Edmunds v. Wallingford, 877. 
 Edmunds v. Waugh, 228. 
 Edison v. .Tablochoflf, 365. 
 Edward v. Gordon, 14. 
 Edwards, re, 472. 
 Edwards v. Acland, 154. 
 Edwards v. Bennett, 705. 
 Edwards v. Burling, 613. 
 Edwards v. Davis, 628. 
 Edwards v. Durgen, 782. 
 Edwards v. Edwards, 23, 61, 220, 945. 
 Edwards v. Freeman, 12. 
 
 \ 
 
 , 
 
XXXll 
 
 TABLE OF OASES CITED. 
 
 i 
 
 ii 
 
 EdwardH v. Hodges, 443. 
 
 Edwards v. Hope, 472, »15, 91«, !I17. 
 
 Edwardfi v. LowndeH, 801. 
 
 Edwards v. Lowther, 'AW, :«MJ, 1157. 
 
 Edwards v. Pearson, ))1», )»22. 
 
 Egerton v. Anderson, (ki2. 
 
 Egleston v. Howe, 206. 
 
 Egremout Burial Board v. Egreniont Iron 
 
 Ore Co., 504. 
 Ehrlich V. Ihlee, 482. 
 Eisdell V. Coninghani, < 'T. 
 Elderton, re, (54. 
 
 Eldridge v. Biugess, .^fil, 503, 599. 
 Elias V. (Jriffith,5:W. 
 Elkin V. t.'liirke, .513. 
 EUertor v. Wiilton, 832, 834, 846. 
 Ellioe V. (jrO(Mlinan, 331. 
 Elliot, re, 929. 
 Elliot V. Caiiel, 735, 741, 
 Elliot V.Harris, iSd. 
 Elliott V. Beard, 288. 
 Elliott V. C. P. Ry., 539. 
 Elliott V. Gardiner, 577. 
 Elliott V. Hunter, 225. 
 Elliott V. Jayne, 227. 
 Elliott V. McCuaig, 832 {<iMa). 
 Ellis V. Desilva, 895, SSHJ. 
 Ellis V. Ellis, 240. 
 Ellis V. Munson, 409, 457. 
 Ellis V. Robbins, 536. 
 Ellison V. Thomas, 353. 
 Elwell V. Jackson, 740. 
 Ellwood V. Pierce, 202, 2W5. 
 Elmer v. Creasy, 501. 
 Elmore v. Pirrie, 580. 
 Elsas V. Williams, 52.5, .526, 055. 
 Else V. Else, 194, 211. 
 Elsom, re, Thomas v. Elsom, 334. 
 Elton V. Curteis, 237. 
 Elwell V. Jackson, 743. 
 Ely, Dean of, v. (Jaylord, 328, 330. 
 Elwes, re, 934. 
 Elwes V. Brigg Gas Co., 17. 
 Elwes V. Elwes, 537. i 
 
 Elwon V. Vaughan, 356. ! 
 
 Emden v. Carte, 357, 3.58, 461, 462, 560, .561. 
 Emeris v. Woodward, 40 (adila). 
 Emerson v. Gearon, 896. 
 Emery v. Webster, 570. 
 Ernes V. Emes, 29, 165. 
 
 Emma Mine, re, rx p. Turner, 470. 
 
 Emma Silver Mining C!o. v. Grant, 5M0. 
 
 Emmanuel v. Bridger, 750. 
 
 EmmeuH v. Middlemiss, 50.5, 511. 
 
 Emmermtn v. Ind, 4, 40, 501, 504, 073. 
 
 England v. Curling, 13. 
 
 Engleback v. Nixon, 881. 
 
 English V. CamU-rwell, 874. 
 
 English V. English, 352, ;ViH, 700, 773, IMW. 
 
 English V. Murray, 2(K5. 
 
 English V. Tottie, 503, 508, 513. 
 
 English & .Scottish v. Flatau, 370. 
 
 EngliNh's St'ttlenient, re, 910, 911. 
 
 Entwistle v. Cannon, 28. 
 
 Epix)s, Tiie, tM)5. 
 
 Erie & Niagara Ry. Co. v. (J. W.Ry.Co., W. 
 
 Erie V. Himt, 3(K). 
 
 Erwin v. Powley, 289. 
 
 Erskine v. Adeane, 258, 259. 
 
 Erskine v, Cami)l)ell, 160. 
 
 Erskine v. (iartshore, 445. 
 
 Escfjtt V. Gray, 343. 
 
 Esdaile v. Payne, 81 {mlila), 79. 
 
 Esdaile v. Stephenson, 202. 
 
 Essery v. G. T. R. Co., 250, 260. 
 
 Estwick v. Conningsby, 27, 40ii. 
 
 ICthel Brown, re, (54. 
 
 Ette, re, 349, 765, 769. 
 
 Etherwick v. Cowper, 835. 
 
 Etty v. Wilson, 667. 
 
 European Central Ry. Co., re, "24. 
 
 Evans, ex p., 216, 749. 
 
 Evans, re, 257. 
 
 Evans, re, Welch v. Channel, 7^">. 
 
 Evans, re, Owen v. Evans, 9^. 
 
 Evans v. Bangor, 1(55. 
 
 Evans v. Buck, 107, 319, 408. 
 
 Evans v. Coventry, 162. 
 
 Evans V. Davis, 437, 450. 
 
 Evans v. (iann, 112, 418. 
 
 Evans v. Lewis, 540. 
 
 Evans v. Lloyd, 61. 
 
 Evans v. Puleston, 56. 
 
 Evelyn v. Chippendale, i>43. 
 
 Evelyn v. Evelyn, 442, .52,5, 575, 570, 577. 
 
 Evelyn v. Lewis, 220. 
 
 Everard v. Warren, 181. 
 
 Everett v. Prythergh, 21.5. 
 
 Evering v. Chiffenden, 943. 
 
 Eves, re, ,525. 
 
 
 
TABLE OF CABBH OITBD. 
 
 xvxiu 
 
 Kwart \. Dryileti, 2:»0. 
 
 Kwart V. ({union, Ittl. 
 
 Kwiirt V. Snyder, 2;K). 
 
 Kwart V. St.'Vfii, 7<12, 77(>. 
 
 Kwart v. WilliauiH, 181. 
 
 Kwinjf V. L(iokhart. 5*14. 
 
 Kxcliangc A, Kop WftmlioiiNe v. Akh. of 
 
 Laml FinaiujierM, 528. 
 Kxchani,'!' Hank v. HarnoH, i(45. 
 KxchauKc Hank v. Newell, 5U, (MMi. (Ht7, 
 
 7tll, \m. 
 KxclianK'e Hank v. HtinMon, til, [Kit), 413. 
 Kynde v. (touUl, 714. 
 Kyre v. Cox, 271. 
 
 i:yre v. Hnghen, 40, 172, 233, 413, 4U2. 
 Kyr. \. Miireing, 3i'>r>, 408. 
 Kytoii. n, Adam, (i'.HI. 
 
 Faliner \. Kan, 210. 
 
 Kairl)aini v. HouHeliokl, 51)3, 397. 
 
 KairVianks, iy, it31. 
 
 Kairburn v. PeafHon, 217. 
 
 Faircloiijfli v. MarHhall, 38, 48. 
 
 Fairthorne v. We«ton, 13. 
 
 Faithful, ,r, 4(K>, 471. 
 
 Faitliful V. \V(K>lley, ((I'l (uMi). 
 
 Fftlck V. Axhohn, 401 {(«H>i). 
 
 Falcke V. Read, 17. 
 
 Falconer, re, 3! 8, T^Ki. 
 
 Fall V. KlkinH, 77!». 
 
 Fallows V. Dillon, 540. 
 
 Falls V. I'owell, 155. 
 
 Fane V. Fane, 8*.)4. 
 
 Fansliaw v. London Dairy, 83. 
 
 Farden v. Kiditer, 401, J05, 517, 521, 6«4. 
 
 Farewell v. Wallbridge, 17, 72(». 
 
 Farhall v. Farhall, 7H2, 770. 
 
 Farisli v. Martyn, 558. 
 
 Farlinger \ . Morrishurg, rr, 478, 515, .521. 
 
 Fanner v. Dean, l'.t7. 
 
 Fanner v. Livingstone, 18, 
 
 Fanners v. May, 8!»2. 
 
 Farquhar v. Roliertson, ir, 8{)7, 8t)8. 
 
 Farr v. Ward, 881. 
 
 Farr v. Slieriffe, 014. 
 
 Farran v. H>»nter, 46, 84, 87. 
 
 Farrar v. FarrarH, 197. 
 
 Farrell v. Cruickshank, 544, 704. 
 
 Farrell v. Stokes, 391 , 546. 
 
 Farrell v. Wale, .593. 599. 
 
 Farror v. Lacey, 172, liMt, 227, (514. 
 Farrow v. Austin, 769, 891>. 
 Farwell v. Hiiogan, 428. 
 Faulds V. Harimr, 230, '2m, :m. 
 Faulkener v. Daniel, 'XV2, ;«4. 
 Faiind v. Wallace, WK), 662. 
 Fawcett v. Biirwell, 170, 189. 
 Fawcett V. Holmes, re, 205. 
 j Fawcett v. Winter, 100. 
 Fawciis V. Charlton, 403. 
 Fawsitt, rf, (lalland v. Burton, 2. 
 Fearnside v. Flint, 164, 229. 
 Federal Bank v. Harrison, 407, 408. 
 Federal Bank v. Ho|)e, 34. 
 Fe«'lian v. Bank of Toronto, 879- 
 l<Vehan V. Bank of Upjier Canada, 68l». 
 Felan v. McfJill, .543. 
 Felkin v. Lord Herliert, .503. 
 Fell V. Houth, 211. 
 Fell V. Williams, 283, 629. 642. 
 Fellows V. Barrett, 33;i, 
 Fellows y. Thornton, 704, 720, 743, 744. 
 Fells V. Read, 17. 
 Feltham v. Clark, 354. 
 Fendall v. O'Connell, 414, 498, ry'M), .50.5. 
 Fenner v. Bedford, 58. 
 Fennessey v. Clarke, 503. 
 Fennessy v. Day, 893. 
 Fenny v. Priestman. 766. 
 Fenton v. Blackwood, 231. 
 Fenton v. Lowther, 718. 
 Fenwick v. Fenwick, 703, 784. 
 Ferguson, r>; (54, 525. 
 Ferguson v. Elliott, 485. 
 Fergtison v. E.& S. Invest. Co., 932. 
 Fergiison v. Frontenae, 227. 696. 
 Ferguson v. (ribson, 20. 
 Ferguson v. Kenny, 788. 
 Ferguson v. McMwtin, 686, 950. 
 Ferg\iHon v. Wilson, 17. 
 Ferguson v. Rutledge, 926. 
 Ferner v. Williams. 503. 
 Ferries v. Kerr. 10. 
 
 Ferris v. Eyre, re, 551 (ndila), 543 {ndda). 
 Ferris v. Ferris, 23, 360, 520, 907. 
 Fe wings, ex p., 180, 229, 724. 
 Field v. Barnett, 290. 
 Field V. Bennett, 302. 
 Field V. Field, .579. 
 Field v. Hopkins, 226 (adda). 
 
XXXIV 
 
 TABLE OF CASES CITED. 
 
 Field V. Great Northern Ry., 895. 
 
 Field V. McArthur, 337. 
 
 Field V. Moore, 784. 
 
 Field V. TitmuBs, 179. 
 
 Fielder ■'. Higginson, 213. 
 
 Fielder v. O'Hara, 159, 161, 176, 177. 
 
 Finch, re, 761, (adda). 
 
 Finch V. Brown. 163. 
 
 Finch V. Cocken, 333. 
 
 Finch V. Guardians of York Union, 419, 
 
 450. 
 Finch V. Prescott, 161. 
 Findley v. Pedan, 178. 
 Finkle v. Date, 693. 
 Finley v. Chemey, 563. 
 Finley v. Scott, 367, 369. 
 Finlayson v. MilLs, 48. 
 Finlayson v. Milliard, 894. 
 Finnegan v. Keenan, 578. 
 Finney v. Hinde, 2, .560. 
 Firth, ex p. re Cowburn, 678. 
 Firth V. Ryan, 677. 
 Fish V. Cliatterton, 2t»3. 
 Fisher v. Cox, 277. 
 Fisher v. (ireen, .555. 
 Fisher v. Hughes, 492, 61(5, 619. 
 Fisher v. Keane, 57. 
 Fisher v. Owen, 44.5, 493, 502. 
 Fisher v. Thames .Tunc. Ry. Co., 443. 
 Fisken v. Chamberlain, 487, 538. 
 Fisken v. Smith, 478, 584. 
 Fisken v. Wride, 204, 205. 
 I Itch, re, 55<), 930. 
 Fitch V. Walker, 277. 
 Fitt V. Bezant, 751. 
 Fitcen v. Dawson, 763. 
 Fitzgerald, re, 107, 934. 
 Fitzpatrick v. Fitzpatrick, 782. 
 Fitzpatrick v. Warring, 749. 
 Fitzsimmon v. Wilson, 283. 
 Fitzsinnnons v. Mclntyre, 3S5. 
 Fitzwater, re, .53(i, (J20. 
 Fitzwater v. Waterhouse, .574. 
 Flanders v. D'Evelyn, 784. 
 Fleming, re, 174, 175, .524. 
 Fleming v. Dollar, 404, 449, .5«>8. 
 Fleming v. Fast, .540. 
 Fleming v. Hall, 724. 
 Fleming v. McDonnell, 25, 20*5. 
 Fleming v. Palmer, 231. 
 
 Fletcher, «.^;2>., 218. 
 
 Fletcher v. Bealey, 57. 
 
 Fletcher v. Everard, 624. 
 
 Fletcher v. Field, 931. 
 
 Fletcher v. Noble, 127, 128, 942, 946. 
 
 Fletcher v. Ro-lden, 230, 383. 
 
 Fletcher v Rogers, 55, 57. 
 
 Fleury, »<>, I'leury v. Fleury, 90S. 
 
 Fleury v. Pringle, 789. 
 
 Flight V. Bollard, 334. 
 
 Flint V. Corby, 17. 
 
 Flockton V. Banning, 160. 
 
 Flower V. Buller, 335. 
 
 Flower v. Hartop, 213. 
 
 Flower v. Lloyd, 656, 873. 
 
 Flower v. Low Leyton, 58, 271, 422. 
 
 Flower v. Todd, 3(!6, 369, 370, 371. 
 
 Foakes v. Beer, 52. 
 
 Foakes v. Webb, 502, 506. 
 
 Fogg V. Fogg, 584. 
 
 Foley V. ( 'anada Permanent Loan ASaviim 
 
 Co., 81. 6<)9. 
 Foley V. Lee, 576. 
 Foley V. Mt)ran, 127. 
 Follis, re, KillK)urn v. Coulter, 200. 
 Follis V. Porter, 206. 
 Foord V. Brown, 400. 
 F(K)t V. Benii, 577. 
 Forl)es v. Adamson, 388. 
 Forbes v. Conolly, 719. 
 Forbes v. Middleton, 607. 
 Forl)es v. Ross, 1.59. 
 Ford V. Allen, 228. 
 Ford V. Landed Banking Co., 3,S2. 
 Ford V. Miescke, (MXi. 
 Ford V. Shephard, 273, 302. 
 Ford V. Steeples, 23(). 
 Ford V. Tennant, 507. 
 Ford V. Tynte, 261. 
 Fore Street Warehouse Co. v. Durrant, '^M'\ 
 
 297. 
 Foreman v. DaM'es, 444. 
 Forrest v. Davies, 478, 
 Forrest v. Laycock, 925. 
 Forrester v. Forrester, 24. 
 Forrester, re, Messnier v. Forrester, 647. 
 Forrester v. Thrasher, 656. 
 Forshaw, re, 470. 
 Forster v. Hall, 13. 
 Forsyth v. Drake, 347. 
 
TABLE OF CASES CITED. 
 
 XXXV 
 
 Fortune v. Hickson, 916. 
 
 Foster, re, 543. 
 
 Foster, re, Griffith v. Patterson, 760. 
 
 Foster v. Allison, 182. 
 
 Foster v. Alvez, 581. 
 
 Foster v. Cautley, 333. 
 
 Foster v. Emir.erson, 169. 
 
 Foster v. Foster, 346, 348, 353, 764, 768. 
 
 Foster v. Gamf?ee, 456, 457. 
 
 Foster V. G. W. Ry., 894. 
 
 Foster V. Harrison, 57. 
 
 Foster V. Marshall, 7()1. 
 
 Foster V. Moore, 281. 
 
 Foster V. Morden, 480, 693. 
 
 Foster V. Parker, 612. 
 
 Foster V. Patterson, 784. 
 
 Foster V. Smith, 234. 
 
 Foster V. Van Wonuer, 739, 740. 
 
 Foster V Viegel, 898, 902. 
 
 Foster v. Ward, 35;\ 561. 
 
 Fotberby v. Metro|X)litan Ry. Co., 861. 
 
 F-'thergill v. Fothergill, 12. 
 
 Fotheitfill V. Rowland, 17. 
 
 Fouchier v. St. Louis, 696 (adxla), 912, 913, 
 
 !tl4, 915, 916. 
 Fowle V. C. P. Ry., 487 {adda). 
 Fowler V. Ashford, 516, 714. 
 Fowler v. Barstow, 109, 301, 302. 
 Fowler V. Bayldon, 31"<. 
 Fowler v. Boulton, 483, 487. 
 Fowler v. Fowler, 469. 
 Fowler V. Knooj), 41, 365. 
 Fowler V. Lee, 629. 
 Fowler V. McDonald, 686. 
 Fowler V. Marshall, 761. 
 Fowler V. Rf^ynal, 540. 
 Fowler V. Roberts, 744. 
 Fowler V. Vail, 87. 
 Fox V. Bearblock, 189, (!54. 
 Fox V. Hamilton Prov., .572. 
 Kdx V. Siiwerknip, 334. 
 Fox V. Toronto & Nipissing Rv. Co., 220, 
 
 ()71, 672, ()73, 697, 1085, 1099. 
 Fox V. Wallis, 56<i, 692. 
 Fialiek v. Huffman, 13^1. 
 Friuii V. Frani, 779. 
 Francis v. Francis, 469, 472, 6;M. 
 Francis v. Harrison, 325 {(ulda). 
 Francis v. St. (iennain, 212. 
 Francklyn v. Colhoun, 719. 
 
 Franoke, re, Drake v. Franke, 771. 
 
 Franco v. Franco, 350. 
 
 Franco-Egyptienne v. Lutscher, 485. 
 
 Frankland, re, 73.5. 
 
 Franklin, re, 211, 797. 
 
 Franks v. Worth, 760. 
 
 Frasee v. McFarland, 675. 
 
 Fraser v. Bens, 196. 
 
 Fraser v. Burrows, 493, 498, 502. 
 
 Fra8erv.Cooper,Hall&Co.,340,341,415,416^ 
 
 Fraser v. Fraser, 558. 
 
 Fraser v. Home Tns. Co., .505, 508. 509. 
 
 Fraser v. .Johnston, 85 (adda), 
 
 Fraser v. Locie, 226, 231. 
 
 Fraser v. Nagle, 236. 
 
 Fraser v. Palmer, 942. 
 
 Fraser v. Sutherland, 327. 
 
 Freiison v. Loe, 131, 575, .576, .577. 
 
 Freeborn, re, JVeebom v. Carrt)ll, 347,760^ 
 
 769. 
 Freed v. Orr, 36, 80, 331, 678, 680, 683. 
 Freehold Building Society v. Choate, 201. 
 Freeman v. Butler, .505. 
 Freeman v. Cox, (541. 
 Freeman v. Pojie, 788. 
 Freeman v. Read, 811. 
 Freeman v. Steggall, 5.59. 
 Freer v. Hesse, 212. 
 French v. Baron, 172. 
 French v. Colles, 520. 
 French v. Lewis, 742. 
 Fricht V. Scheck, 18. 
 Fried >*. Galloway, 406. 
 Friedeburg. The, .529, 892, 907. 
 Friedrich v. Friedricli, 472. 
 Friend v. London, Chatham & Dover Ry.- 
 
 Co.,6(M!. 
 Friend v. Shaw, 284. 
 Friendly v Carter, (56, 1(»7, 5!K). 
 Frisby, re, Allison v. Frisby, 1(U {ndi/a). 
 Friswell v. King, 469. 
 Frith V. C<K)k, 39L 
 Frith V. Donegal, 811. 
 
 Fritz V. Hobson, 62, .596,651, 6.")5, 6.56, 895.. 
 Frith V. Ryan, .500. 
 Frontenac v. Breden, 12. 
 Frost V. Br(M)ke, 431. 
 Fry V. Lane, 894. 
 Fry V. Moore, 273, 2i)2, 302, 459. 
 Fry V. Tapson, UH't. 
 
 \f 
 
XXXVl 
 
 TABLE OF CASES CITED. 
 
 Fryer v. Start, !I2(). 
 
 Fryer v. Wiseman, 401, 537. 
 
 Fuffgle V. Bland, 01, 216, 747. 
 
 Fuller V. Alexander, «30. 
 
 Fuller V. Mackleui, (543. 
 
 Fuller V. McLean, 155, 1«7, 521, W4. 
 
 Fuller V. I'arnell, 231. 
 
 Fuller V. Redmond, 17. 
 
 Fulton V. Brown, 372. 
 
 Fulton V. U. C. Furniture Co., 412. 
 
 Fullwood V. Fullwood, 58. 
 
 Furter V. King, 2iK». 
 
 Furlfnig V. Carroll, «!t. 
 
 Furlong v. Caterliani Ky. Co., 3H7. 
 
 Furlong v. Mitchell, (;8<i. 
 
 Furlong v. Reid, (i(i<>, 87!) 
 
 Fnrness v. Booth, .324, 3i>', »J(), 4il7. 
 
 Furnival v. Br(K)ke, 2'.i4 {mliln). 
 
 Fussell V. IJowding, M'l. 
 
 Futcher v. Futclier, 44(». 
 
 <i. V. R. ,337. 
 
 ii. — V. V. — , 2m. 
 
 <labbet v. Cavendish, 4!K». 
 ■<Tabi)urie, ;v, Casey v. (iabourie, 7!>, 81, 14.5. 
 <Jage V. Canada rublishihg Co., ISH, (•»7.5, 
 
 947, 1071, 1078, 1070, 1080. 
 iiage V. Mulholland, 3- 0. 
 Oainer v. Dr.yle, 475. 
 •Ciairdner v. (Jairdner, 320, ;W0. 
 Galbraith v. Duncombe, 348. 
 •<iale V. Hubert, 201, .SO«i. 
 <Tall V. Collins, 007. 
 iiallagher v. (lairdner, 48(1, 487. 
 <Tallagher v. Nugent, 'Xil*. 
 <Talland, n, 471. 
 
 <Jallerno, ri, (irant v. McAlpiiie, 71. 
 <Talloway v. Keyworth, 020. 
 <4alsworth v. Strutt, 21. 
 <4alt V. Niagara Ry. Co., 21(5, 387. 
 (Tames, c.r jKirti', 472. 
 (iamble V. (iummer.son, 212. 
 < Gamble V. Howland, (573. 
 Gandy v. (landy, 3(51. 
 Gandy v. Stansfield, .50(5. 
 Ganson v. Finch, 270, 043, 047. 
 •(••arbutt V. Fawcus, 42. 
 ■<Tardiner v. Hardy, .53(5. 
 ^Jardiner, «, Gardiner v. Beaumont, 101. 
 «<Tardiner v. Harris, 043. 
 
 Gardiner v. .Tuson, 727, 728. 
 Gardner v. Brown, (543. 
 Gardner v. Burgess, 010. 
 Gardner v. Irvin, .504, .500. 
 Gardner v. .Fay, (543. 
 (iardner v. Tajiling, 574, 020. 
 j (4tirfitt y. Allen, 1(50. 
 Garland v. Thomi)son, 041. 
 (iarlick v. Jackson, 301. 
 Garlick v. Larron, 531. 
 Garlick v. Lawson, 30. 
 Garner v. Tune, 42(5. 4.52. 
 Garnett v.' Bradley, 801, 001. 
 tj'arnes, re. Games v. A))plin, 17(>, 3t8. 
 CVarnhain v. Hkijjper, .528. 
 (irarrow v. McDonald, 347. 
 Garrett v. Roberts, 574. 
 (iartside v. Silkstone D. C. & I. Co., 2.U. 
 Garth v. Cotton, 1(5, 47. 
 Gtvske'l V. (iaskell, 770. 
 (4askin v. Balls, .55, .5<5 58, 217. 
 (iates V. Smith, 234. 
 (4ath V. Howarth, 807. 
 (4athercole v. Smith, 40(5, 407, 408. 
 Gatti V. Webster, 035. 
 (raudet Freres Steamship Co. , r<: 43, |(',. 
 Gaughan v. Shar|)e, 430. 
 Gault V. Si)encer, 043. 
 Gaunt V. Taylor, 173. 
 GawthorjK* v. Gawthorpe, ,50, (50, 215. 
 Gay V. (iay, n Hancock, .58, 710. 
 Gay V. Hall, 023. 
 Gay nor v. Salt, 877. 
 (iaynor v. Scott, .534. 
 Geake v. Ross, 773. 
 (iedye, /r, 517. 
 
 Gee V. Bell, 400, 4.51, (514, (51(5. 
 Geldard \. Randall, 107. 
 Gemmell v. Burn, 30«). 
 General Credit & Discount Co. v. (ili'i,% 
 
 235, 3!M5. 
 Gen. Finance Co. v. Lil)erator, .531. 
 Gen. Horticultural Co., re, 742, 740. 
 Gen. Share & Trust Co. v. Wetley, (583. 
 (ren. Steam Nav. Co. v. London & Kdiii 
 
 burgh Shijjping Co., 378. 
 (ieorge v. Elston, OK!. 
 Gerhard v. Montagu, 883. 
 Germ Milling Co. v. Robinson, 873. 
 German Bank v. Sciimidt, CM), (531. 
 
TABLE OF OASES CITED. 
 
 xxxvn 
 
 (Ji'nriiHi Mining Co., re, 162. 
 
 Cething v. Keighley, 181. 
 
 (ihent V. McColl, 741. 
 
 (iibb V. Murphy, t>91. 
 
 ( Hbbings v. Strong, 404. 
 
 (iibbons v. Darwell, 320. 
 
 (iilibons V. London Financial Association, 
 
 482, ()!tl. 
 (Jibbons V. Wilson, 790. 
 (Hbbs V. (iiiild, 37, 41, 438. 
 (;ibl)s V. Haydon, 779. 
 (Jibson, IV. t)7r) {aifda). 
 Cibfiiii V. Kdwiinis, 4;W. 
 (iibsoii V. Lovcll, 220. 
 (iibs(i)i \. .MoHininion, ()i;{. 
 (Jibmni v. Montfort, 215. 
 (Jifford V. Citford, 414. 
 (JillMTt V. liraithwait, 10, 7(>4. 
 (lilbfvt V. Comedy OiHTaCo., 541. 
 (iillMTt, /■'', (iilbf'vt V. Huddlestonc, 75, 
 (Jillifrt V. Kndean, 4)5. 5.5(i, (J55. 
 (lilbert v.larvis, 79, (J94. 
 (iilbtrt V. .Smith, fi37, 042, 043, 044. 045. 
 (Jilbeit V. Stile.s, 55(t, 832. 
 (Jilchi'ist V. r'ooi*r, 8.5.5, 8.50. 
 (iilchrist, ic, Jlol.ii v. Fife, 2.55. 
 (iilder v. Morrison, 482, .578. 
 (Jildersletive v. Cowan, 421. 
 ( Jilderdt »vo v. McDongall, 304. 
 (tildersleeve v. Walkeni, 931. 
 CileK V. Morruw, tS9, 2ft5, 313. 
 (iill V. Caiiftda Fiiv and Marine Ins. Co., 
 
 200. 
 Kill V. (gamble, 470. 
 (iill V. W(X)dfin, 401, 404, 020. 
 (Jillam V. Cleghorn. 14. 
 (JillatHly V. White, 17. 
 (Jilleland v. WadHWorth, 400. 
 (iillen V. Roman Catiiolic Episcopal Cor- 
 
 I>oration, 391. 
 (iillettpie, re, 408. 
 (iilleHpie v. Alexander, 180. 
 (iillespie v. Shaw, 723, 9;J2. 
 (Jilliat V. (Jilliat, 195. 
 (iillies V. McConochie, 341. 
 (iilluit V. Ker, (»19, 042. 
 •iillrie, re, 1,5. 
 (iihnor v. Orford, 271. 
 (Jilmour v. Buck. SHH. 
 (iilmour V. Meyers, 230. 
 
 Gilmoui- V. Roe, 107, 108, 232. 
 
 Ctiliiiour V. Strickland, 583. 
 
 (irilroy V. Stephen, 159. 
 
 (liltrie, re, 785. 
 
 (iinty V. Rich. 905. 
 
 (iirdlestone v. Gunn, 387. 
 
 (iirvin v. Burke, .580 and 581 (dihln), 
 
 Girvin v. (rrepe, 033. 
 
 Glannibanta, The, 35. 
 
 (41anvil]c, re, 3;i8. 
 
 (Tlanville's Trusts, re, 0.54. 
 
 (xlasgow V. Glasgow, .593. (JoO. 094, 
 
 (ilasier v. Rose, 11 (addn). 
 
 (Mass V. Biiby, 8.32. 
 
 (rla.ss V. Cameron, 4()0. 
 
 (ilass V. Freckleton, 221, 223, ;<22> 
 
 (ilass V. (4rant, 392, 448, 449. 
 
 Glass V. (41ass, 412. 
 
 (ilass V. Munseu, 702, 770. 
 
 (TliiHCodine, /v, 931. 
 
 (ilediiill V. Hunter, 382. 
 
 Gleim V. liox, 83;^. 
 
 (ilennie v. Ross, 8;W. 
 
 (il<,ag& Miller, re, 207. 
 
 (ilosso]) V. Heston, Local Board. 11, '3.3, 54, 
 
 .50, .537, 541, 809. 
 (ilossop V. Spindler, 429. 
 (ila/.br(K)k v. (iillat, 2.5(>, 478. 
 Gloucestershire Banking Co. v. I'liillip|)8, 
 
 33(i, .337, 303, .S(W, 371. 
 Glover v. Ellison, 183. 
 Croatley v. Enmiett, 944. 
 (t(Hlard V. Gray, 87. 
 Goddard v. Jeffreys, ()78, 090. 
 Goddai-d v. Parr, 44.5, .556. 
 (ioddard v. P(K)le, 5()2. 
 Grjdden v. Corsten, 284, 403. 
 Godfrey, re, (lodfrey v. Fatilkner, 106. 
 Godfrey v. Harrison, 335. 
 Godfrey v. Watson, 172. 
 Godfrey v. Pcxile, 789. 
 Godson V. Hall, 600. 
 (ioggs V. Huntingtower, 289, sll. 
 Goldie V. Date P. S. Co., (>72. 
 Golding V. Mackie, 833. 
 G«)ldi.ig V. Whartfm Salt Works, 75, 449, 
 
 450. 
 Golds V. Kerr, 334. 
 (Toldsmidt v. Stonehewar, 320. 
 GoldHmith v. Goldsmith, 162. 
 
XXXVlll 
 
 TABLE OF OASES CITED. 
 
 I. 
 
 ri 
 
 Ooldsuiitli V. Walton, 583. 
 
 Ooldstrom v. Latteriuan, 228. 
 
 (jroldHWorthy, In re, 04. 
 
 (jronee v. Leitch, 579. 
 
 Goodall V. Burrows, 387. 
 
 (ioodenow v. Farquhar, 780. 
 
 Gooderham v. Toronto & Nipissing Ry. 
 
 Co., 220. 
 Goodfellow V. Rannie, 705, 7H4. 
 Goodfellow V. Shuttleworth, t»:2, 10t>9. 
 Goodhart v. Hyett, 893, 894. 
 Goodman v. Blake, 75, 880. 
 Go(Klman v. Robinson, 742. 
 Goodman v. Whitcomb, 217. 
 Gooderham v. DeGrassi, 053. 
 Goodrich v. E verjf ly n Coal Co. , 38, 48 (adda), 
 
 300. 
 Goodrich v. Marsli, 325, 327. 
 Goodwin v. Buddin, 99. 
 Goodwin v. Fielding, 200. 
 Goodwin v. Gosnell, 258. 
 Goold, re, G J v. Goold, 504. 
 Goold V. Birmingham & Dudley District 
 
 B.>i,nk, 211. 
 Gordon & Bonter, re, 747. 
 Goose V. G. T. Ry. Co., 001. 
 Gordon v. Eakins, 103. 
 Gordon v. G. W. R. 80. 
 
 Gordon v. Uanna, 292. 
 
 Gordon v. Harnden, 203,207, 208. 
 
 Gordon v. Jennings, 740. 
 
 Gordon v. Laurie, 834. 
 
 Gordon v. Phillips, 539. 
 
 Gorham v. Gorham, 154, 18.5, 340, 908, 909. 
 
 Goring v. Cameron, 309, 384, 413. 
 
 Goring v. London Mut. F. Ins. Co., 484, 
 485. 
 
 Gonnan v. Gorman, 518. 
 
 Gorue v. Beard, 023. 
 
 Gornall v. Mason, 530. 
 
 Gort V. Rowney, 318. 
 
 Gossage v. Canadian L. & E. Co., 671. 
 
 Gosnell v. Bishop, 051. 895. 
 
 Gossett V. Campbell, 018. 
 
 Gough V. Bench, 447- 
 
 Gough V. Heatley, 043. 
 
 Gough V. McBride, 210, .')34. 
 
 Gould V. Seattle, 431, 432. 
 
 Gould V. Birmingham &: Dudley District 
 Bank, 204, 836. 
 
 Gould V. Bin-ritt, 175, 045. 
 
 Gould V. Hamilton, 203. 
 
 Goulding v. Deeming, 7!H). 
 
 (iourand v. Fitzgerald, 432. 
 
 Gourley v. Ingram, 888. 
 
 (iourand v. Edison, .507. 
 
 Goutard v. Carr, 895. 
 
 Government Co. v. Dempsey, 029. 
 
 Government Security Invest. Co. v. 1 )eiii- 
 
 frey, 414. 
 Gowall V. Mason, 530. 
 (iowanlock v. Mann, 83, 84. 
 (iowans V. Barnet, 737. 
 Gower v. Lusse, 89. 
 Gowland v. (iarbutt, 387, 393. 
 (rrace v. Whitehead. 233. 
 (irafton v. Watson, 50. 
 Graham v. Campbell, .59, 872. 
 Graham v. Chalmers, 281. 
 Graham v. Davis, 013. 
 Graham v. Devlin, 739, 740. 
 Graham v. McArthur, 534. 
 Graham v. O'Callaghan, 800. 
 Graham v. Robson, 70(i, 709, 771. 
 Graham v. Ross, 894. 
 Graham v. Sjiettigue, 902. 
 
 Grahame v. Anderson, 188, 229. 
 
 Grand .Junction Ry. v. PeterVxiro, 941. 
 
 Grand Trunk Railway Co. v. Credit Valley, 
 .50. 
 
 Grand Trunk Ry. v. McEwan, 853. 
 
 Grand Trunk Ry. Co. v. Ont. & QueWc 
 
 Ry. C, .517, 071, 07.5, 090, 947. 
 I Grange v. Earlier, 322. 
 I Granger '•. Lathas', ?<>9. 
 I Grant v. P^aston, 020. 
 
 Grant v. Eastwood, 14. 
 
 Grant v. Banque Franco Egyptienne, 548, 
 549, 072, 706. 
 
 Grant v. Eddy, 420. 
 
 Grant v. Grant, 188, 349, 724, 763, 768, 778. 
 918, 935. 
 
 Grant v. Holland, 107, 408. 
 
 Grant v. McDonald, 702. 
 
 Grant v. McDonell, 740. 
 
 Grant v. Mcintosh, 022. 
 
 Grant v. People's Loan, 229 {'idda). 
 
 Grant v. Winchester, 340. 
 
 Grant v. Willson, 87!l. 
 
 Grantham v. Powell, 663. 
 
TABLE OF CASES CITED. 
 
 XXXIX 
 
 <;ias(tt V. Carter, .35, 170. 
 
 (inaves v. Taylor, .516. 
 
 (iiaves V. Terry, 401, 418, (i20. 
 
 <;ray v. Alexaiuler, 88.5, (aililii). 
 
 (Jruv V. Ball, 212. 
 
 (Jray v. Bell, 012. 
 
 (iray V. Coiiclier, 212. 
 
 (iray v. Davidson, S'.Mj. 
 
 (iniy V. Hatch, 514. 
 
 (iray v. Roberts. Glfl. 
 
 (iray v. Lewis, 321. 
 
 (Jr.ay v. Stait, t>38. 
 
 (Jniy V. TurnbuU, 3.5. 
 
 (iray v. Webl), 4(Ki, 412. 414. 
 
 (Jreat Australian Mining Co. \. Martin, 
 
 300. 301, 302. 
 Creat Northern Advertising Co. v. Rainer, 
 
 jY, 894, 80S, 003. 
 (Ireat Northern Ry. v. Inett, 478, 893, 911, 
 
 9.50. 
 (Jreat Northern Ry. v. Sanderson, 213. 
 (ireat Western Ry. Co. v. Jones, 203, !KK). 
 (Jreaves, re. Bray v. Tofield, 702. 
 ({reaves v. Fleming, .570. 
 ({reaves v. Tofield, 234. 
 (ireen, re, 5('»4, 930. 
 ({retn v. Adams, 390. 
 (ireen v. Auiey, .511. 
 Green v. Bennet i, 400. 
 Green v. Bridges, 22. 
 (ireen v. Browning, .304. 
 (ireen v. Colby, 03(). 
 Green v. Hewer, 232. 
 (ireen v. Jenkins, 0.57. 
 (ireen v. Measures, 184, .352. 
 (ireen v. Ponton, 234. 
 (ireen v. Pratt, 374. 
 (ireen v. Prior, .520. 
 (ii-een v. S«n'in, 51, 440. 
 (ireen v. Thornton, 408, 410, .50.3. 
 (ireen "s Trustee v. Barrett, 99, 
 (ireenhoug'i v. Rumney, 503. 
 (iroening v. Beckford, 255. 
 (ireeiiough v. Gaskill, 502, 507. 
 (ireenshields v. Blackwood, 391. 
 (ireenway, ex p. 12. 
 (ireenway v. Atkinson, .50. 
 Greenwood v. Homsey, 62. 
 Greenwood v. Sutherland, 531. 
 Greey v. Siddall, 583. 
 
 Greey v. Smith, 1089. 
 
 Gregg V. Arrott, 167, 168. 
 
 Gregory v. Wilson, 21. 
 
 Greig v. Somerville, 180, 
 
 (Jrepe v. Loam, 43. 
 
 (iresley v. Mousley, 503. 
 
 (iretton v. Mees, 5()9, (ndJn). 
 
 (irey's Brewery Co., re, 480. 
 
 Grey v. Stacey, 134. 
 
 Grieve v. Molson's Bank, 0)51. 
 
 Grieve v. Woodruff, 14. 
 
 (liriffin v. Patterson, 337. 
 
 Griffith, re, 172, 931. 
 
 (Griffith v. Blake, 872. 
 
 Griffith.^ V. Ystradyfodwg,.570& tylUmhln). 
 
 Griffiths v. (Griffiths, 467, 469. 471. 
 
 Griffiths v. Londtni & St. Katharine Dock 
 
 Co., 419. 
 Griggs V. Meyers, 472. 
 Grimsby v. Webster, 2.50. 
 Grismhaw, etc., v. McDowell, 40.5, 416. 
 (irimshawe v. Parks, 223. 
 Grimwade, ex parte, 707. 
 GripiJer v. Bri8tow,623. 
 (irissell V. Peto, 409. 
 Griswold V. Buffalo, Brantford and (Jode- 
 
 rich Ry. Co., 74.5. 
 Groom, re, 65. 
 Groom v. Darlington, 7<J0. 
 (Jroom v. Rathbone, 629, ()30. 
 Grote v. Bing, 218, 525. 
 Grove v. Bastard, 212. 
 Groves v. Lane, 346. 
 Grueber, re, 258. 
 Guess v. Perry, 460. 
 
 Guardians of Mansfield v. Wright, 97, 101. 
 Guelph C. Co. V. Whitehead, .500. 
 Gueret v. Young, 319. 
 (luest V. Newmes, 2.50. 
 Guest V. Pool & Bournemouth Ry. Co., 861. 
 Guillet V. Clark, .593. 
 Gummerson v. Banting, 169. 
 Gunn v. Cox, .534. 
 Gunn V. Doble, 2.5, 201, 212, 3.53. 
 Gunn V. Trust & Loan Co., 436. 
 Gunn V. McDonald, 230. 
 Gunson v. Maynard, 337, 627. 
 Gunn V. Trust & Loan Co., 167. 
 Guthrie v. Walrond, 347. 
 Guy V. G. T. Ry. Co., re, 127, 302. 
 
il.i 
 
 xl 
 
 TABLE OF CASES CITED. 
 
 ^1 ! 
 
 Guy V. Guy, 334. 
 (iwatkin v. Bird, (jO. 
 (Jwynne v. Rees, 745. 
 (iwyiine v. Watney, 543. 
 (iyhon, re, Allan v. Taylor, iVMi. 
 Gyiin V. Gilbard, 15. 
 Gzowski V. Beaty, ;W9. 
 
 H., re, 31 L. T. N. S. 730; 1 Oii. L> 
 
 258, 259. 
 H. V. H., 215. 
 H.'s Estate, re, (!1, 872, 
 Habershon v. (iill, 59, 871. 
 Hackett v. Lalor, (»27. 
 Hadley v. McDougal, 505. 
 Haffey v. HafFey, 518, 007. 
 Hagennan v. Smith, 231. 
 Haggart v. Allan, 13. 
 Haggin v. Comirtoir, «tc., 207. 
 Hague, re. Trader's Bank v. Murray, 774, 
 
 870, 932. 
 Hair, re, 931. 
 Hague, re, 377, 378. 
 Hagarty v. Hagarty, 510. 
 Haigli V. Frost, 623. 
 Haigh V. Haigh, 401, 402, 005. 
 Hale V. Boustead, 410. 
 Halo V. Kennedy, .'55. 
 Hall, ex p., re Wcxxl, 872. 
 Hall V. Comfort, 284. 
 Hall V. Eve, 400, 417, 441. 
 Hall V. Falconer, 225. 
 Hall V. Forteye, 401. 
 Hall V. Gosleg, 728. 
 Hall V. Griffin, 71. 
 Hall V. Hall, 217, 705, 
 Hall V. Heward, 236. 
 Hall V. Hunter, 134. 
 Hall V, Gowanlock, 402, 493. 
 Hall V. Jenkinson, 217. 
 Hall V. Jupe, 601. 
 Hall V. Laver, 471. 
 Hall V. Ley, 714. 
 Hall V. L. & N. W. Ry. (Jo., 502. 
 Hall V. Morley, 386, 394. 
 Hall V. Old Talargoch Lead Mining Co., 
 
 385. 
 Hall V. Pilz, 925. 
 Hall V. Pritchett, 744, 745, 
 Hall V. Railway CommissionerB, re, 78, 
 
 Hall V. Truman, Hanbury, 500, "lOit. 
 Halleday, re, 05, 
 Halleron v. Moon, 178, 761. 
 Hallett V, Ftirze, 322, 307, 
 Hallinan v. Price, 89<!. 
 Hallock V. Wilson, 19. 
 Hambly v. Fuller, 20. 
 Halpin v. Calder, 8.53. 
 '-'am V. Lasher, 021. 
 . ' 'uburger v. Poetting, 943. 
 ,,;iielyn v. White, 475, 499, r>02, rm, 508, 
 
 .500, 607. 
 Hai'.nM' V. Giles, 742. 
 M.mi;' , Barr, 304. 
 liini'lton y. Br ,,tch, 596, (addu). 
 Haniilton '•. Diivies, 2!(1, 517. 
 Hamilton v. Dnrrell, 879, 883. 
 Haniilton v. Haniilton, 370. 
 Hamilton v. Hdcomb, 059. 
 Hamilton v. Howard, 015, (5.53. 
 Hamilton v. Johnson, 598, (UO, ti07, 
 Hamilt<m v. Xott, 497, 507, 508. 
 Hamilton v. Staley, 531. 
 Hamilton v. Stevenson, 388. 
 Hamilton \-. Street, 503. 
 Hamilton v. Tweed, 98. 517, 694. 
 Hamilton, etc. v. (tovc Bank, 723, 037. 
 Hamiltoi. & N. W. Ry. & Haltoii, rv, 54. 
 Hamilton Prov. L. & T. Soc. v. McKini, 
 
 589. 
 Hamilton Prov. Loan Co. v. Uumble, 77. 
 Hamilton Prov. Loan Co. v. Smith, 240, 
 
 873, 394. 
 Hamilton Prov. Loan Co. v. Cornell, 5«)3. 
 Hamilton Road Co. v. Flatt, 433. 
 Hamilton, etc., Road Co. v. Raspberry, M, 
 
 57. 
 Hamlyn v. Betteley, 2, 270. 
 Hammill v. De Wolf, 879. 
 Hainp V, Robinson, 347. 
 Hamixlen v. Wallis, 492, 645, 713. 
 Hancock v. Attorney-General, :587. 
 Hancock v. Guerin, 496. 
 Hancock v. Hale, 893. 
 Hancock v. Maulson, 225, 
 Hancock v. Smith, 746. 
 Hancocks v. Lablache, 3:55, 420. 
 Handley v. Roberts, 621, 62;i. 
 Handman v. Reilly, 326, 327. 
 Hands v. IT. C. Furniture Co, 486. 
 
TABLE OF CASES CITED. 
 
 xU 
 
 Hftnkinson v. Barniiigham, 433. 
 Hanmer v. FliRht, 427, 429, 027, <!32, (i33. 
 Hannaford v. Neeley, 613. 
 Hansel) v. Maddox, 884. 
 Harbin v. Darby, 173. 
 Harlx)rd v. Monk, 430, 504. 
 Harding, n; 780, 7!)f>. 
 Hanlin),' v. Barratt, 743. 
 Harding v.CardiflF, 10. 
 Harding v. (Hover, 217. 
 Harding v. Harding, 4'.) (ndilii). 
 Harding v. Knowlson, (WIS. 
 Harding v. LymLS, 404. 
 Hanlinglnun v. Kowan, 3(X). 
 Hardnuin, >•<; Bagnell Hidlen. l.-i4. 
 Hardwiuk, Tiie. J34. 
 Hardwick, ir, 25!). 
 llardwick v. Wriglit, 181. 
 Hardy v. Pickard, ()55, 8!t8. 
 Hare v. Cawtliorpe, 403, 42(i, 5.Sti. 
 Hare v. Hare, 533. 
 Hargrave \-. Hargrave, (>4(!. 
 Hargrea\es v. Scott, 097. 
 Harlock v. Ashberry, 230, .SH.{. 
 Harnden, re, Harnden v. Harden. .114. 
 HarfH'r v. Davis. 5<>8 (iiddii), 
 Har|H'r v. Marx, 58(5, 589. 
 Hannon v. Park, 34. 
 Harn v. Harn, 23. 
 Harnden, re, 715. ^ 
 
 Harnett v. Vise, 897. 
 Hari)er v. Davis, .5(»8 (ndda) 
 Harper v. Smith, 583. 
 Hari)hain v. Shatjklock, 75, S9i». 
 Harrald, r<; Wilde v. Walf.ird, '.(15, 9l(i. 
 Harris, /y, 802. 
 Harris v. Aaron, 75, (579. 
 Harris v. Andrews, 309. 
 Harris v. Fleming, 304. 
 Harris v. (Janible, .3(i5, 407, 408, 411, 449. 
 Harris v. .Tenkins, 428. 
 Harris v. .Tewell. 707. 
 Harris v. Meyers, 22.3, (1!I2, 7H>, 717, 718. 
 Harris v. Mudie, 800. 
 Harris v. Myers, .500. 
 Harris v. Owners of the Franconia, 3(t3. 
 Harris v. l*et)ierick, 894. 
 Harris v. Prentiss, 8(X>. 
 Harris v. Kobin.son, 080. 
 Harris v. Warre, 437. 
 J. A. 
 
 Harrison, ex p., 233. 
 
 Harrison, re, 1070. 
 
 Harrison v Bottenheim, (»2St, 032. 
 
 Harrison v. Bottrill. 779. 
 
 Harrison v. Cockerell, 50 (udda). 
 
 Harrison v. Cornwall Mineral Ry. Co., 531, 
 
 (WO. 
 Harrison v. Davis, 841. 
 Harrison v. drier, .323. 
 Harrison v. (i. T. Ky. Co., 500. 
 Harrison v. Harrison, 13. 
 Harrison v. Jones, 108, 171, 
 Harrison v. Josei)h, 202, 204, 211. 
 
 Harrison 
 Harrison 
 Harrison 
 Harrison 
 Harrison 
 Harrison 
 Harrison 
 Harrison 
 Harrison 
 Harrison 
 
 Leach, (i34. 
 
 Leutner, 517, 573. 912. 
 
 Livingston, 21.3. 
 
 Maninis of Alxa-gavenny, 4.57. 
 
 Mc(;iasliiin, 158, 105, T'iO, 708 
 
 McSiiee'ian, ()40, 093, 893. 
 
 Patterson, 10(i, 175, 772. 
 
 Spenuer, 19. 
 
 Stubl), 7(i2. 
 
 Surrey Masonic Hall, 405, 010. 
 Harrold v . Wallis, 13, 215, .348, 771. 
 Harrold, .r, Wilde v. Walford, 472. 
 Harry v. Davey, 3.58. ,3(}8, .372. 
 Harston '■. Tenison, 47. 
 Hart V. l?rown, 371, 372. 
 Hart V. Hart, 43, 40. 
 Hart V. ]M(!<iuesten, 227. 
 Hart V. Meyers, .574. 
 Hart v. Rnttan, 840, 852. 
 Harter v. Colman, 227. 
 Hartley \ . Burton, 240. 
 Hartley ^ . Dilke, 2!t2. 
 Hartley \ . (Iwen, 492. 
 Hartley \ . Siiemwell. 735. 
 Hartman v. Foster, 74. 
 Hartmont v. Foster, 523, 880, 881, 882. 
 Hartnell v. Canada Mutual Aid Co., 484, 
 
 485. 
 Hartrick v. (^uigley, 700. 
 Harvey & Parkdale, re, 14. 
 Harvey v. Boomer, 340. 
 Harvey v. Croydon, 52.5, 055. 
 Harvey v. Divers, 921. 
 Harvey v, Dougherty, 305. 
 Harvey v. G. T. Ry. Co. & G. W. Ry. Co., 
 
 .324. 
 Harvey v. Harvey, 29i», 711,715, 716. 
 D 
 
ij 
 
 Table of cases cited. 
 
 I 
 
 i 
 
 
 Harvey v. McNeil, 233, 238. 
 
 Harvey v. Oliver, 43. 
 
 ttftrvey v. Pearsall, 313. 
 
 HaJ-*ey v. Renon, 600. 
 
 Harvtiy" v. Smith, 943. 
 
 Harvey v. Wilde, 330. 
 
 Hasker v. Wood, 891. 
 
 Hastie Vi Hastie, (591. 
 
 HrtstiHg'H v. Earnest, (i8f>. 
 
 Mastinffs V. Hurley. 293, 481. 
 
 Hastings v. Ivali, 50<), 509. 
 
 Hatchard v. Mege, 5(>3. 
 
 Hateley v. Merchants' Dispatch, 78, 068 
 
 674, 9;U, 944, 945. 
 Hathway v. Doig, 357, 942, 944. 
 Hatt V.Park, 225. 
 Hawes v. Bamford, 5.')4. 
 Hawke v. Brear, 895, 897. 
 Hawker, ex /inrte, 745. 
 Hawkes v. Hawkes, 519. 
 Hawkewill, ex parte, 65. 
 Hawkins v. Dart, 12. 
 Hawkins v. (irathercole, 220. 
 Hawkins v. Jarvis, 156, 224. 
 Hawkins v. Mahaffy, 261. 
 Hawksley v. Bradshaw, 404, 56R. 
 Hawn v. Cash ion, 171. 
 Haworth v. Fletclier, 687. 
 Hawthorne v. Harris, 289. 
 Hay V. Johnston, 283, 615, 626. 
 Hay V. McArthnr, 286 (addn). 
 Haycock's Policy, re, 49, 50. 
 Hayi's V. Corcoran, 440. 
 Hay s V. Hayes, 97, 173, 176, 188, 189,693, 
 
 6114. 
 Haynies v. Cooper, 2.56, 472. 
 Hayward v. Hayward, 57. 
 Hayward v. Lely, 431. 
 Hay war! v. Pile, 330. 
 Hazt'lfoot V. Chelmsford Local Board, 443. 
 Head v. H.)\vinin, .•{20, 359. 
 Hcaddon v. I'linuictt, 328. 
 Hc.ip V. Manis, 427, 42!). 
 H<Mrd V. Borgwardt, 361. 
 Hearle v. Ross, 20. 
 Heath v. Crealock, 507. 
 Hepth v. Pugh, 383. 595, 641, 708. 
 Heatlicote v. Hulme, 160. 
 Heatley v. Newton, 320, 357, 691, 
 Heaton v. McKellor, 320. 
 
 f Heberman v. Fottrill, 330. 
 Hedgely re, S38. 
 Hedley v. Bates. 43, 46, 58. 
 Heenan v. Heenan, 38. 
 Heighington v. Grant, 160. 
 Heil v. Lazenby, 942. 
 Heiron's Estate, re, Hall v. Leys, 714. 
 Hele v. Ford Bexley, XVi. 
 Heley v. Cousins, 857. 
 Helenslea, The, 273, 581. 
 Hellier v. Ellis, 483. 
 Hellewell, re. 13. 
 
 Hemingway v. Braithwaite, 27 (addu). 
 Hemming v. Wilton, 933. 
 Hemp V. Warren, 277. 
 Hemsley, re. 171, 762, 763. 
 Henderson v. Cowan, 391. 
 Henderson v. Dickson, 228. 
 Henderson v. Eason, 780. 
 Henderson v. Hall, 302, 3(X). 
 Henderson v. HarjKjr, 555. 
 Henderson v. Henderson, 23. 
 Henderson v. Maxwell, 762. 
 Henderson v. Mclver, 173. 
 Henderson v. Watson, 881. 
 Hendrie v. Beattie, 647, 654. 
 Hendrie v. Neelon, 4S!), 539. 
 Hendricks v. Hendricks, 144, !t08. 
 Hendricks v. Mcmtagu, 446, 447. 
 Henebery v. Turner, 643. 
 Heney v. Kerr, 387. 
 Hennessey v. Rohniann, 872, 874. 
 Hennessy v. Wright, 432, 433, 502. 
 Henning, re, 647. 
 Henning v. McDougall, 204. 
 Henricks, re, 785. 
 Henry v. Commercial Bank, 723. 
 Henry v. Little, 534. 
 Henry v. Sharp, 762, 770. 
 Hepburn v. Patton, 55, 21tt, 281. 
 H. M. S. Bellerophon, 502. 
 Herbert, re, 931. 
 Hercules, The, 871.' 
 Hercy v. Birch, 13. 
 Heritage v. Ford, 896. 
 Herman Loog v. Bean, 56, 57. 
 Heron v. Moffatt, 172, 175, 195. 
 Herr v. Douglas, 459. 
 Herring v. Bischoffscheim, 438. 
 Herring v. Brooks, 84. 
 
TABLE OF CASES CITED. 
 
 zliii 
 
 Herron v. MoflFatt, 195. 
 
 Hesketh v. Ward, 833. 
 
 Heslop V. Metcalf, 154, 470. 
 
 Heapeler v. Beck, 659. 
 
 Hessin v. Baine, 337, 675. 
 
 Hester v. Hester, 79, 697. 
 
 Heufirh V. Cliambevlain, 448. 
 
 Heiigh V. Garrett, 501, 509. 
 
 Heward v. Heward, 671, 672. 
 
 Heward v. Ridont, 193, 195. 
 
 Heward v. Wolfendeii, 696. 
 
 Hewett V. Murray, 61. 
 
 Hewish, rr, 24. 
 
 HewHon V. Macdonald, 692. 
 
 Hewinon v. Pembroke, .516. 
 
 Hewitson v. FaV)re, 274, 302, 306. 
 
 Hewitson vr Todlmuter, 329. 
 
 Hewitt, rr, 537. 
 
 Hewitt V. Heyse, 359, 360. 
 
 Hewitt V. Murray, 748. 
 
 Hewitt V. Nanson, 192. 
 
 Hey V. De la Hey, 503, 508. 
 
 Heyw«)d v. Mallalwn, 20,5, 212. 
 
 HeywofKl V. Sievwright, 760. 
 
 Hiternian Bank v. Hughes, 577. 
 
 Hick V. Lockwood, 872. 
 
 Hickey v. Stover, 666, 794, 803. 
 
 Hickmay v. Lawson, 14. 
 
 Hicks V. Faulkner, 438. 
 
 Hicks V. Hicks, 215. 
 
 Hicks V. Marreco, 833. 
 
 Hickson v. Darkw, 239. 
 
 Hiddingh v. De Villiers, 161, 175. 
 
 Hieron v. Hobson, 916. 
 
 Higginbottom v. Aynsley, 401, 576. 
 
 Higgins, re, 210, 534. 
 
 Higgins V. Brady, 847. 
 
 Higgins V. Manning, 94.3. 
 
 Higgins V. Scott, 409, {ndcla), 619. 
 
 Higginson v. Hall, 497. 
 
 Higliton V. Treherne, 77. 
 
 Hilderbroom v. McDonald, 498, 529. 
 
 Hildige v. O'Farrel, 414, 442. 
 
 Hiles V. Moore, 215, 216. 
 
 Hill, re, 258, 259, 795, 797, 802, 937. 
 
 Hill V. Barclay, 21, 38. 
 
 Hill V. Campbell, .502. 
 
 Hill V. Forsyth, 235. 
 
 rsMl V. Hart Davies, 57, 445, 449, 509. 
 
 (iiil V. King, 162. 
 
 Hill V. Kirkwood, 66. 
 
 Hill V. N. Pac. Juno. R. Co., 101. 
 
 Hill V. Rimell, 477. 
 
 Hill V. Sidebottom, 826. 
 
 Hill V. Water, 431. 
 
 Hilleary, re, v. Taylor, 257. 
 
 Hilliard v. Arthur, 663. 
 
 Hillard v. Campbell. 392. 
 
 Hillard v. Fulford, 348. 
 
 Hilliard v. Thurston, 579. 
 
 Hilluian v. Mayhew, 410, 578. 
 
 Hills V. London Gas Light Co., 559. 
 
 Hilly ard v. Royal Ins. Co., re, 697, 1088. 
 
 Hillyard v. Smith, 302. 
 
 Hillyard v. Swan, 606. 
 
 Hilton V. Wwds, 322. 
 
 Hime v. Ledley. re, 222, 726. 
 
 Hind V. Brett, 43. 
 
 Hind V. Whitmore, 340. 
 
 Hindmarah v. Southgate, 348. 
 
 Hinings v. Hinings, 251. 
 
 Hinriclis v. Berndes, 54, .57. 
 
 Hipgrave v. Case, 447. 
 
 Hirons v. Amherstburg, 813. 
 
 Hirach v, Coates, 746. 
 
 Hirst V. Hannah, 623.| 
 
 Hirst V. Proctor, 556. 
 
 Hislop V. McGillivray, 641, 861. 
 
 Hoar V. Lac, 383. 
 
 Hoare v. Stephens, 391. 
 
 Hobb V. Reid, 342. 
 
 Hobbs V. Scott, 739. 
 
 Hobhouse v. Courtney, 290. 
 
 TTobler, re, 478. 
 
 Hobson V. Monk, 284, 628. 
 
 Hobson V. Shearwood, 472. 
 
 F[obson V. Wadsworth, 308. 
 
 Hoch V. Boor, 99, 100. 
 
 Hockey v. Evans, 878, 
 
 Kodder v. Turney, 14. 
 
 Hodge v. Attorney-General, .392. 
 
 Hodge, re, 13, 19, 20. 
 
 Hodges v. Fincham, 707. 
 
 Ho<lges V. Hodges, 405, 423, 895. 
 
 Hodgina v. Hodgins, 295. 
 
 HcKlgins V. McNeil, 12, 19, 20, 894. 
 
 Hodfson, re, Beckett v. Ramsdale, 67, 343. 
 
 Hodgson V. Paxton, 492. 
 
 Hodkinson v. French, 383. 
 
 Hoghion V. Hoghton, 540. 
 
xliy 
 
 TABLE OF CASES CITED. 
 
 ill 
 
 ■ 
 
 ■li'ii 
 
 Hodson V. Mochi, 413. 
 
 Hodson V. RichardHon, 682. 
 
 Hogg V. Grabbe, 1086. 
 
 Hogg V. Darley, 422. 
 
 Hogg V. Maguiro, 761. 
 
 Holcomb V. Nixon, 17. 
 
 Holcnnib v. Loach, 234, .391. 
 
 Holden, in re, 173, 
 
 Holden v. Laiigloy, 878. 
 
 Holden V. Silkstone & Dcxiswortli Tdnl 
 
 an<i Iron Co., .581. 
 Holden V. Smith, 138. 
 Holford V. Yate, 237, 3!t3. 
 Holgate V. Hhutt, 177. 
 Holgate V. Slight, 220, {',2S. 
 Holland v. Kinj,', 213. 
 Holland v, Woilcy, ((2. 
 Holliday v. HcppenMtall, 432. 
 Holliday v. Mayor of Wakefifld, /'•, MICJ. 
 Hollingswortli v. IJroderiek, 5S0, .5X1. 
 Hollingsworth v. Hollingswortli, il40. IMH. 
 Holloway, re, olO. 
 
 HoUoway v. York, 410, 411, 43C., .■)7«. 
 Holme V. Allan, 022. 
 Holmes, re, 255. 
 
 Holmes, re, Wrigiit v. Weathfrlicad, 41,'<. 
 Holmes V. Hervey, 581. 
 Holmes v. Shaw, (ilO. 
 Holmes V. Tutton, 740, 75(». 
 Homested v. Vanderlx)part, 220. 
 Holshed, re, (55. 
 Holt, re, 715. 
 Holt V. Beagle, 301. 
 Holt V. Jesse, .525, (}55. 
 Holt V. Smith, 804. 
 Holtby V. Hodgson, 339, 040 {n(l><n), 741, 
 
 742. (adda), 745. 
 Honduras Ry. Co. v. Tucker, 310, 324, 380. 
 Honsberger, re, 175. 
 Honsberger v. Kratz, in re, 100. 
 Hood V. Cooper, 640. 
 Hood V. Cronkrite, .555. 
 Hood V. Martin, 626. 
 Hooey v. Gilbert, 517, .538. 
 Hoole V. Eanishaw, 285. 
 Hoole V. Roberts, 256 
 Hooper v. Giles, 405, 616. 
 Hooper v. Gumm, 506. 
 Hooper v. Harrison, 162. 
 Hooper v. Hoojier, 519. 
 
 H(K)p<T V. Maitlaml, 33.5. 
 
 Hop Exchange Ash. v. ,\sh. Tiiind Finan- 
 ciers, 528. 
 
 HolM', The, 472. 
 
 Ho|)e V. Beatty, 00. 
 
 Ho|)t! V. (Carnegie, 715. 
 
 Hoiw V. Ho|.e, 280, 2<.K>, 530. 
 
 Hope V. Liddell, 400. 
 
 HofMi V. Neill, (527. 
 
 Hopkins V. Hopkins, 7'(8. 
 
 Hopkins V. Smith, 107, .500, 501. 
 
 Hopklnsim v. Lord Burghley, 50. 
 
 Hopper V. H.irrison, .34fi, 3.52, 77M. 
 
 HopiM^r's Trusts, ir, lOSO. 
 
 ilopton V. Robertson, ((30. 
 
 Hoorigan v. Driscoll, 853, 8,55. 
 
 Horkins v. Harty, 205. 
 
 Horlock, The, 58. 
 
 Ilorlock V. Smitli, l(i3. 
 
 Horn V. L.isher, lOOS. 
 
 Hornby v. Cardwell, 74, 3(i3, 3(W, ;{00, 370, 
 372, 373, 800, 000. 
 
 Hornby v. Holmes, 200. 
 
 Horner v. Williams, 20(i. 
 
 Honiibruok, re, 10(>, 100, 202, 787. 
 
 Horrocks v. Rigby, 40(i, 415. 
 
 Horsely v. Cox, 7.35. 
 
 Horseley v. Fawcett, 350. 
 
 Horseman v. Coulson, 40(!.- 
 
 Horton V. Bolt, .504. 
 
 Horton v. Westminster, 051. 
 
 Horwell v. London (Jeneral t)mnibus Co., 
 302. 303, 307, 3(i8, .370. 
 
 Horwood, re, ,554. 
 
 Hoskin's Trusts, re, 800. 
 
 Hosking V. Terry, 185, 658. 
 
 Hoskins v. Johnston. 197. 
 
 Hospital of St. Katherines, ex p., 802. 
 
 Hostrawser v. Robinson, 350. 
 
 Hough V. Edwards, 747. 
 
 Houlding v. Poole, 335. 
 
 Hounston v. M. of Sligo, 44. 
 
 Household Fire Ins. Co., v. Grant, ()31. 
 
 House Prop. & I. Co. v. H. P. Horsti- 
 nail Co., 357, 301. 
 
 Houston, re, 779. 
 
 Houston, re, Houston v. Houston, 229, 395. 
 
 Houston V. Sligo, 437. 
 
 Houtaling v. Cuttle, 833. 
 
 Hovey v. Ferguson, 109. 
 
TABLE OF OASES CITED. 
 
 xW 
 
 Hov.iy V. (iilbert, 487, 48«. 
 
 Howiird, /r, 554. 
 
 Hdwurd, re, Padley v. CumphauHen. 274, 
 
 3(>2. 
 Howard v. Chaff erx, 540. 
 Howard v. DoUinaii, re, 470. 
 Howard v. Macara, 237, 3!»3. 
 Howard v. KobiiiHon, .505. 
 Howiird V. Sowerby, 574. 
 Howiirtli V. Howarth, 715. 
 Howf V. Howe, 518. 
 Howe V. McKernan, 504. 
 Howe V. Smith, 1!H». 
 Howell V. DawHoji, (iO, 880. 
 Howell V. Howell, 107, H)8. 
 Howell V. .Tewett, 44. 
 Howell V. Listowel, ()(!!. 
 Howell V. Metropolitan District \\\. (^>., 
 
 743. 
 Howell V. West, ;W0. 
 Howeren v. liradhurn, 17<>. "'-'••It. -->>. 
 Howey V. Howey, 23. 
 Howes V. ')oininion Ins. Co., 2;{-'. 
 Howland, i ■, !)47. 
 Howlett V. Wilbrahani, 37">. 
 H;il)lmck v. Hdnis, G(». 
 Huckle V. Wilson. 422. 
 Huckwell, ri; D»vid v. Diilton. <)30. 
 Hudderstield v. ilariuinb, tiO. 
 Huilson V. Kernyhoiigh, ;r>K {mlila), 417 
 
 {(Kldti), 4fiO {adda). 
 Hue V. Richards, 13. 
 Hiitfnian v. Dormer, 283. 
 Huff V. Cameron, (>22. 
 Hugjjins V. (luelph Barrel Co., 4W. 
 Hugtjins V. Law, 784, 785. 
 Huggons V. Tweed, 7.5, 411. 
 Hughes, ex /;., 170. 
 Hughes V. Cook, Hi. 
 Huglies V. Evans, 334. 
 Hughes V. Fields, 521, WO, Mil. 
 Hughes V. Hughes, 321). 3;{0. 543, '>75, (577, 
 
 ()K4, 770. 
 Hugiie.s V. iTones, 0.54. 
 Hughes V. Little, 77. 
 Hughes V. Metropolitan Ccj., 21, 40. 
 Huglies V. Rees, 140, 173, 524. 
 Hughes V. West, .5()4. 
 Huglies V. Williams, 1G6. 
 Hughson V. Davis, 12. 
 
 HughHon V. Gordon, 629, 630. 
 
 Huguenin v. Baseley, 217. 
 
 Hulkes V. Day, 265, 260. 
 
 Hnlkes, in re, Powell v. Hulkesj IfiO. 
 
 Hume V. Bentley, 194, 211. 
 
 Hume V. Pocock, 211. 
 
 Humphreys v. Edwards, 578. 
 
 Humphreys v. Humphreys, 350. 
 
 HHmi)hreys v. Hunter, 85. 
 
 Humphreys v. Ramsay, 944. 
 
 Humphreys v. Taylor, 431. 
 
 Humphries v. Taylor Drug Co., 483. 
 
 Hunnings v. Williamson, 483, 493, 498. 
 
 Hunt V. Austen, ex p., Mason, 291. 
 
 Hunt V. Finj^berg, 407. 
 
 Hunt V. Hunt, 64, 872. 
 
 Hunter v. Carrick, 18. 
 
 Hunter v. Greensill, rr, 742, 743. 
 
 Hunter v. Mountjoy, 478, 829. 
 
 Hunter v. Vanstone, 080. 
 
 Hunter v. Wilcockson, 309, 316, 399, 0:J7. 
 
 Hunter v. Young, 35.5, 420. 
 
 Huntingdon v. Attrill, 44, 87. 
 
 Huntingdon v. Van Brooklin, 234, 0!t6. 
 
 Huntley v. Link, 651, (5.56. 
 
 Hurd V. Robertson, 213. 
 
 Hurst V. Barlier, 503, 513. 
 
 Hurst V. Hurst, 361. 
 
 Husband, re, 554. 
 
 Hutcheson v. Smith, 102. 
 
 Hutchins V. Hind, 730, 836. 
 
 Hutchinson v. Edmison, 766. 
 
 Huichins(jn v. (xlover, .501, .503, .505, .506, 
 
 508. 
 Hutchinson v. Hartmont, 708, 71.5, 870. 
 Hutchinson v. NorwiKxl, 334, 471. 
 Hutchinson v. Sargent, 15, 763. 
 Hutchison v. Colorado United Mining Co., 
 
 364. 
 Hutscm v. Hutson, 623. 
 Hutt v. Shaw, 74.5. 
 Hutton v. Federal Bank, 180. 
 Hutton V. Wagner, 1070. 
 Huyck v. Proctor, 650. 
 Huxley v. W. London, 897, 898, 899. 
 Hyam v. Terry, 672, 673. 
 Hyatt, re, Bowles v. Hyatt, 7(53. 
 Hyde v. Barton, 238. 
 Hyde v. Beardsley, 901. 
 Hyde v. Greenhill, 717, 719. 
 
 
 r 
 
 i\ ij 
 
 1 i*?c I 
 
xlvi 
 
 TABLR OP CASES CITED. 
 
 Hyde v. Hyde, 339, 554. 
 
 H^'de V. Wanlen, 48, 01, 872, 874. 
 
 Hyett V. McKim, 782. 
 
 Hyman v. Ht-lin, 44. 
 
 Hyman v. Rootn, 025. 
 
 Hyne v. Bmwn, 2!)5. 
 
 Hyne v. Murphy. 2it3. 
 
 Hynea v. FiHher, 271. .'MO, 517. 
 
 Ibbottson V. Henry, H53. 
 
 Tdingtoii, /•(', !M>H. 
 
 Tdington A Micklc, ;r, !(2!t, !i:«). 
 
 Ilderton. n; 931, 934. 
 
 Tmbert Terry v. rarver, <i2(i. 
 
 Imperial Bank v. Hritton, 284. 
 
 Imperial liank v. Dickey, 474. 
 
 Imperial Hank v. Metcalf. 208, 211. 212. 
 
 Imperial Bank v. .Sonierfelt, (i2.'>. 
 
 Imp. Land Co. of Marseilles, etc., re, 54S. 
 
 Imp. Land Ci>. of Marseilles v. Matttennan, 
 
 .509. 
 Imperial Loan, etc., Co. v. Bahy, lt(>(». 
 Imperial Loan, etc., Co. v. Bo\iltiiii, 383. 
 Incorporated Society v. Richards, lt')3. 
 Ind V. Emerson, 488. 
 Ingersoll, rr, Gray \. Ingersoll, 14. 
 Ingilby v. .Shafto, 5(«, 50(). 
 Ingle V. MoCutclian, 029. 
 IngliH V. Beatty, 1.50, KJO. 
 Inglia V. Gilchrist, 220, 229, 233. 
 Inglis V. Wellington Hotel Co., 180. 
 Ingoldsby v. Ingoldsby, 29. 
 Ingram v. Ingram, 519, 907. 
 Ingram v. Little, 493, 498. 
 Tnman v. Wearing, 322. 
 Innes v. East India Co., 74.5. 
 Innes v. Sayer, 12. 
 International Bridge Company v. Canada 
 
 Southern Ry. Co., 97, 099. 
 International Fmancial Society v. City of 
 
 Moscow Ga.s Company, 82. 
 International Wrecking Co. v. Lobb, ()73, 
 
 691. 
 International WreckingCo. v. Murphy, 340. 
 Ireland v. Pitcher, 697, 901. 
 Irish, re. Irish v. Irish, 220. 
 Irvine, re, 73.5. 
 Irving V. Boyd, 718. 
 Irving V. Clark, 942, 944. 
 Irving v. Munn, 383. 
 
 Irwin, re, 15, 785. 
 
 Irwin v. Bn)wn, 300, 4(Mt, 416, 417 {wlJn). 
 
 Irwin V. Buck, 761. 
 
 Irwin v. Freeman, 788. 
 
 Irwin v. Harris, 622. 
 
 Irwin V. SpeiTy, 407, 409, 586. 
 
 Isaac, re, .336, 9.50. 
 
 Isaacs, e.t: jMirtr, 940. 
 
 Isl)ister V. .Sullivan, S81. 
 
 Israel, rr, 7<>1. 
 
 Ives, re, Bailey v. Holmes, 27. 
 
 Ivory V. Cniickslumk, (i08, 617, 71<'. 
 
 .I.e. M. &.I. M.. n; 258. 
 
 J. Fisher, Tlie, 410. 
 
 •lack, ri\ .Tack v. .Jack, 340, 7IH'. 
 
 •lack V. Kijiping, 413. 
 
 .lackes, ri; 782. 
 
 •lackson, ?y, 23.3, 931, 032. 
 
 .lackson, re, Massey v. Crodk-liank-^, 'J.'M,. 
 
 378, 379. 
 •lackson v. Bowman, 789. 
 .lackson v. Cassidy, 74.5. 
 .Tacksiiu V. Kniger, 3(!0, 364 
 Jackson v. (iardiiier, 224, 565, 1192. 
 Jackson v. Hammond, 22.3. 
 Jackson v. Harriman. 140, .585. 
 Jackson v. Harris, 228. 
 J.ockson V. Jackson, 23, 717, 718. 
 .Jackson v. .Tessup, 206, 207. 
 Jackson v. Kassel, 554. 
 Jackson v. Litchfield, 107, 297, 311, 711, 
 
 712. 
 Jackson v. Matthews, 1.56, 771, 772, 776 
 
 {(ulda). 
 Jackson v. Mawby, 716. 
 Jackson v. North Eastern Railway, 560, 
 
 561. 
 Jackson v. Randall, 852. 
 i Jackson v. Turnley, 30. 
 Jackson v. Yeomans, 386, 301. 
 Jacob v. Earl f Suffolk. 2.37. 
 Jacobs v. Brown, 372. 
 .Jacobs v. Magnay, 310. 
 Jacques, re, 81. 
 Jacques v. Harrison, 6()5. 
 Jacqu(^t V. Boura, 285. 
 James, ex p., 170. 
 James v. Barraud, 33(). 
 James v. Bicknell, 460, 473, 881. 
 
TABLE OF ('A8R8 CITED. 
 
 xlvii 
 
 •laineH v. < Iciuont, (i4(). 
 
 •FameH V. I'l-ow, 5!I3. 
 
 James v. I)»'H|M)tt, 302. 
 
 Jaroes v. Fi-ciliind, 'M. 
 
 .Tanies v. (iilcs, (»". 
 
 Jamex v. .laint's, ;WG. 
 
 Janu'H V. Keir, 22(1. 
 
 Jamba v. Nortim, H!)l. 
 
 Jamt-H V. RolwrtNdii, 3"t'>. 
 
 Jaini.'.son v. .Joins, 5;{!(. 
 
 .lameson v. Kei'r, 853. 
 
 .liHiicHon V. Tilling, 43, 2H0. 
 
 Jamf"<(m v. Miii'.iliall, 5(»4. 
 
 Jainii'son v. Lftiiig, 43, 2.H(t, 401. 
 
 Janiii'soii V. Pr. Allx-rt Col. r;.'.,ti!l1. 
 
 ,1. 15. I'almnrV Ic Mark, ti72. 
 
 Jardine v. li '12. 
 
 Jardine v. V ^S, ;«1. 
 
 .rannaiii v. Chattertoii, 74, "."i, 70. 
 
 Jarvis V. Conkc, rf, 8tM(. 
 
 .larvis V. Wliite, 47i">. 
 
 Jeff UavLs. Th<^ 747. 
 
 Jwfferys v. .)effcr,v«, 348. 
 
 Jt'fferys v. Sinitli, 01)4. 
 
 Jekyli V. Wmle, 14. 
 
 Jellard, ri; .301. 
 
 Jellctt V. Anderwin, 180, 004. 
 
 Jenkins v. Bryant, 4(18. 
 
 Jenkins v. Davies, (11(1, (142, 043. 
 
 Jenkins v. Kirhy, 722. 
 
 Jenkins v. Martin, 770. 
 
 Jenkins v. Morris, 83, (101, (j02. 
 
 Jenkyn v. liiishhy, 503. 
 
 Jenkyn v. Vanglian, 788. 
 
 JemuT V. .Tennt-r, 30. 
 
 Jenner v. Morris, 010. 
 
 JenntT-Fust v. Noedham, 301. 
 
 Jenney v. Macintosh, 305. 
 
 Jennings v. G. T. R. Co., 443. 
 
 Jennings v. Jordan, 227, 32."i, 32(1, 327. 
 
 ilervis v. Wolfcrstan, 348. 
 
 Je.sse V. Bennett. IMO. 
 
 Jessop V. McLean, 339. 
 
 Jeyps V. Booth, 02.3. 
 
 J. Fisher, The, 410. 
 
 J. H. Menkes, The, .573. 
 
 Jiminey v. Owen, 310. 
 
 Job V. Job, 07, 105. 
 
 Joel V. Dicker, 023. 
 
 John V. Lloyd, 4.54. 
 
 JohnasHon v. Bonhote, 424, 425, 440, 
 
 JohnH V. JuuieH, 513. 
 
 Johnson, re, 215. 027, 788. 
 
 •lohnson. le, Hheannan v. Robinson. 702. 
 
 .Tulinson V. Altrineham Perm, benefit, 422. 
 
 Johnson v. Ashbridge, 302, 558. 
 
 iTohnson v. hennttt, 748. 
 
 •Tohnson v. Hurgess, .384, 420. 
 
 .lohnson v. ("aiiachi (Jo., 10. 
 
 •Tohnson v, ("line, 7!K». 
 
 •Tohnson \'. Diamond, 745. 
 
 •Tohnson v. Kvans, 305. 
 
 •Tohnson v. .lohnson, 025, 
 
 .Tohnson v. Kenyon, 0O2. 
 
 .Tohnson v. Mac(h)nald, 83.5. 
 
 .Tohnson v. Marriott, 400. 
 
 .Johnson V. Menzics, 201. 
 
 •Tohnson v. Moffat, 2(1, 578. 
 
 •Tohnson v. Montreal & City of Ottaw.i l(y. 
 
 1(1. 
 Johnson v. Mo(Kly, 751,75-1. 
 •Tohnson v. Nee/.er, .324, 37.3. 
 Johnson V. Palmer, 400, 451, 400. 
 .Tohnson v. School Trustees, 047. 
 .Tohnson v. Smith, 407. 
 •Tohnson v. Sparrow, (103. 
 Johnson V. Weatiierall, 030, 031, 03 1. 
 •Tohnston, I'V. p. re, Abrams, 50. 
 .Tohnston, re, .lohnston v. Hogg, 703, 708, 
 
 700. 
 •Tohnston v. Coleman, 310. 
 Johnston v. Knglish, 504. 
 •Tohnston v. •Tohnston, .302. 
 •Tohnston v. Mcintosh, 480. 
 Johnston v. Oliver, 350. 
 •Tohnston v. Reid, 220. 
 Johnston v. Royal Courts of .Justice, ,50. 
 •Tohnston v. Salvage Ass. ,303. 
 •Tohnston v. St. Andrew's, 008. 
 •Tohnston v. Wilson, 048. 
 Johnstone v. lirowne, 027. 
 Johnstone v. Cox, 7 •, c,.'.'.'-. 
 Joint Discount Co. v. Brown, 328, 32i). 
 Joliffe v. Baker, 11, 204, 205, 200. 
 Jones, re, 031, OIW. 
 Jones, re. Eyre v. Cox, 271, 275, 277. 4.55, 
 
 4.5(;. 460. 
 .Tones, re, .Tones v. Searle, 101. 
 •Tones V. Andrews, .509. 
 Jones V. Bank of Upper Canada, 32". 
 
av'u 
 
 xlviii 
 
 TABLE OF OASES CITED. 
 
 Jones V. Bartholomew, 478. 
 
 Jones V. Baxter, 83. 
 
 Jones V. Beck, 23U. 
 
 Jones V. Brown, 439, 742, 74!t. 
 
 Jones V. Cargill, 200. 
 
 Jones V. Clark, 201. 
 
 Jones V. Clifford, 204, 211. 
 
 Jones V. C(Kjk, 85.5. 
 
 Jones V. Curling, 8!»7, 8!)S. 
 
 Jones V. Elderton, 337, 3(>8. 
 
 Jones V. Foxall, 1.59, IW). 
 
 Jones V. Front, 215. 
 
 Jones V. (rodrich, 215. 
 
 Jon«f8 V. GresH, 831. 
 
 Jones V. Harriw, 23.5, ((lit. 
 
 Jones V. Hough, 35, '540, (!(»7, (itiS. 
 
 Jones V. Huntingdon, 445. 
 
 Jones V. James, 349. 
 
 Jones V. Jenkins, 879. 
 
 Jones V. Jones, 14, 215, 48;!, 499, 505, i\-2i, 
 
 728, 928. 
 Jones V. Lloyd, 375. 
 Jones V. McOrath, .38. 
 Jones V. Monte Video (Ja>i Co., .50!). 
 Jones V. Pugh, 2](>. 
 Jones V. Rinimtr, 194, 205. 
 Jones V. Scottish Accident Ins. Cn. .'ill.'H. 
 Jones V. Thompson, 745. 
 Jones V. Turner, 449. 
 Jortin'v. South Eastern Ky. Co., 109. 
 Joselyne, <:r. jxirtc, 743, 75(». 
 Joseph Hall Manufacturing Co., ;v, 144. 
 Jourdain v. Palnn'r, 490. 
 Joy v. Hadley, .51.5. 
 Joy V. McKinn, 443. 
 Joyce V. Hart, 70. 
 
 Joyce V. Metropolitan Burd of Works, (iOl 
 Judkin, /v, 773. 
 Julia Fishf r. The, 940. 
 Jupp, ■/■«', ;i38. 
 Jupp V. Cixjjier, 714, 835. 
 J'.:r:iier v. Davis, M2. 
 Juson V. Gardiner, 152. 
 
 Kahn v. Bedford, 480, 488. 
 Kain v. Farrar, 502. 
 Kaltenbach v. Lewis, 438. 
 Kandick v. Morrison, 77. 
 Kane v. Mitchell, 568. 
 Kay V. Briggs, 78. 
 
 Kay V. Light, 894. 
 
 Kerby v. 
 
 Kaye v. Sutherland, 303. 
 
 Kemick '. 
 
 Kean v. jiviwards, 14, 09. 
 
 Kerr, re, ! 
 
 Kearney v. Harrison, 899. 
 
 Kerr v. B 
 
 Kearsley v. Philips, 505. 
 
 Kerr v. B 
 
 Keate v. Phillips, 3«1. 
 
 Kerr v. K 
 
 Keays, re, 258. 
 
 Kerr v. Li 
 
 Keefe v. Ward, 143, 145, 178, 492, 514, 514. 
 
 Kerr v. Lt 
 
 714. 
 
 Kerr v. M 
 
 Keefer v. McKay, 204, 211. 
 
 Kerr v. M 
 
 Keefer v. Merrill, 832. 
 
 iverr v. St 
 
 Keenahan v. Preston, re, ()87. 
 
 Kerr v. St 
 
 Keene v. Riley, 215, 210. 
 
 Kerstenian 
 
 Keightley v. Birch, 705. 
 
 Kettlewell 
 
 Keini v. Yeagley. 919. 
 
 Kettlewell 
 
 Keith, n; 1.5, (55, 524. 
 
 Kevan v. { 
 
 Keith V. Butcher, 350. 
 
 Kevers V. 
 
 Keith V. Day, 383. 
 
 Key V. Ke> 
 
 Keith V. Keith, .518. 
 
 Khedive, '1 
 
 Keleher v. McGibbon, 724. 
 
 Kidd V. Ci 
 
 Kellar v. Tache, 782. 
 
 Kiely v. K 
 
 Ki'llett V. Kelly, 471. 
 
 Kiely V. M 
 
 Kelly, vi', 5i'4. 
 
 Kiffin V. K 
 
 Kelly V. Ardell, 340. 
 
 Killxirn v. 
 
 Kelly V. Imp. Bank, 074. 
 
 Kilgiiriff V. 
 
 Kelly V. Maoarow, 808, 809. 
 
 Kilkenny K 
 
 Kelsey v. Kelsey, 59. B 
 
 Killaly V. ( 
 
 Kemble v. Farren, 21. H 
 
 Killins V. h 
 
 Kemp V. ({oldberg, 431. ■ 
 
 Kim))t<>n v. 
 
 Kemp V. Henderson, 14. ^ 
 
 Kinciiiil V. 
 
 Kendall v. Hamilton, 343, 350, 441. 1 
 
 747. 
 
 Kendrew v. Shewan, 200. M 
 
 Kinoaid v. 
 
 Kendrick v. Kendriek, 772. 3 
 
 King V. An 
 
 Kendrick v. Roberts, 382. ^ 
 
 King V. C( 
 
 Kennan v. Murpliy, (i78. 
 
 094. 
 
 Kennedy v. Brown, 925. 
 
 King V. Coi 
 
 Kennedy v. Lawlor, 18. 
 
 King V. Da 
 
 Kennedy v. Lee, 217. 
 
 King V. Dii 
 
 Ketniedy v. Lyell, 492, mi, 507. 
 
 King V. Frt 
 
 Kennedy v. Patterson, 878. 
 
 King V. Ha 
 
 Kennedy v. Pingle, 771. 
 
 King V. Isa 
 
 Kennedy v. Royal Ins. Co., 498. 
 
 Kink' V. Kei 
 
 Kennedy v. Wakefield, 497. 
 
 King V. Kii 
 
 Kennett v. Westminster Improvement 
 
 King V. Lu< 
 
 Commissioners, 740. 
 
 King V. Mo 
 
 Kenney v. Browne, 170. 
 
 King V. Rol 
 
 Kensington v. Bouverie, KiO. 
 
 King V. Sai 
 
 Kenrick v. Kenrick, 445. 
 
 King V. Sm 
 
 Kant v. Freehold, 79. 
 
 Kingclntrch 
 
 Ker v. Williams, 43, 400, 449, 915. 
 
 Kingsford v 
 
TABLE OF CASES CITED. 
 
 xlix 
 
 Kerby v. Kerby, 227. 
 
 Kernick v. Keriiick, 550. 
 
 Kerr, re, !I31. 
 
 Kerr v. B..in, 72S. 
 
 Kerr v. Beebe, 3«(i, 385. 
 
 Kerr v. Kinsey, 234. 
 
 Kerr v. Lafferty, 13. 
 
 Kt-rr V. LeiHiiinaii, 1.^. 
 
 Kerr v. Malptis, 287. 
 
 Iverr v. Murray, 327. 
 
 Kerr v. Strip]), (175. 
 
 Iverr v. Styles, 74K. 
 
 Kersteniiin v. McLeimaii, 82!t. 
 
 Kettlewell v. Barstow, 5(15. 
 
 Kettlewell v. Watson, 8(», 2.SI 
 
 Keviin V. Crawford, 4(i. 
 
 Kevers V. Mitchell, 44. 
 
 Key V. Key, 28. 
 
 Kliedive, Tlie, 707. 
 
 Kidd V. Clieyne, 'XiiA. 
 
 Kiely V. Kiely, 422. 
 
 Kiely V. Massey, (i2>. 
 
 Kiffin V. Kiffiii. 215. 
 
 Killx>Mi V. Workman, 17' •• 
 
 Kilgaritf v. Mc(;rane, 2«;{, (HIS. 
 
 Kilkenny Railway Co. v. Kiel li ii, ',14:!. 
 
 Killaly v. (rraliani, (143. 
 
 Killins V. Killins, 7()!t. 
 
 Kini)>toii V. Kve, 2.58. 
 
 Kincaid v. Kincaid, 25, (il. 2<il, 2()(i, 2ir., 
 
 747. 
 Ki:ioaid v. Heid, 21(i. 
 King V. Anderson, 170. 
 King V. Connor, l!)(t, 2r), 23(1. 3itl, 5J|, 
 
 (;!I4. 
 Kinpr V. Corke. 44(». 4.53. 
 King V. I)aveii|)ort, 481, 57(i. 
 King V. Diuican, (i74. 
 King V. Freeman, (il2, OM. 
 King V. Ilawkeworlli, (IS. 
 King V. I.saacson, 251. 
 KinK V. Keating, 32(i. 
 King \ . King, 215. 
 King V. Lucas, IttS. 
 King V. Moyer, l(Mi!(. 
 King V. Robins, 021. 
 King V. Sandemaii, (S(i4, (i65. 
 King V. Smith, 10. 
 
 Kingchurch & People's (iarden Co., 4.!. 
 Kingsford v. Poile, 3!)2. 
 
 Kingsland, re, 19. 
 
 Kinfpjley v. Dunn, 025 (adda), G29 (aihla). 
 
 Kingsman v. Kingsman, 330. 
 
 Kingsmill v. Miller, 250. 
 
 Kingsmill v. Warrener, 848. 
 
 Kingston v. Murphy, 892. 
 
 Kinlock v. Morton, 034. 
 
 Kinnaird v. Trolloi)e, 240, 39«5 («</</..). 
 
 Kinnaird v. Yorke, 391. 
 
 Kinnear v. Blue, 339, (527. 
 
 Kino V. Rudkin,G2, 355, 359, 300, 301, 5(J2. 
 
 Kirby v. Kirby, 171. 
 
 Kirchoffer v. Stafford, 391. 
 
 Kirk V. Burgess, 01, 747. 
 
 Kirk V. Todd. 500, .5(53. 
 
 Kirkham v. Wheeley, 574. 
 
 Kirkpatrick, re, 89, 585. 
 
 KirkiJatrick, re, Stevenson v. Kirkpatrick, 
 
 108, 347, 780. 
 Kirkpatrick v. Howell, (\V2, 014. 
 Kirkpatrick v. Ly^ter, 20, 172. 
 Kitcat V. Sharp, 57. 
 Kitchen v. Murray, 210. 
 Kitching v. Hicks, .359. 
 Kitohing v. Kitching, 382. 
 Klinck V. Ontario L. & I. Co., 0.54. 
 Klein v. Union Fire Ins. Co., 232, 280, 492, 
 
 .525, 714. 
 Kline V. Kline, 132, 15.3, 177, 224, 01.5, (MS. 
 Kloebe, re, Kannreuther v. (jteiselbrecht, 
 
 700. 
 Knapp V. Cauiero)!, 390. 
 Knapp V. Bower, 22i). 
 Kna]>|> V. Knap)), 518. 
 Knatchbull v. Fearnhead, 348. 
 Knatchbull v. Fowle, 401, 530. 
 Knight, re, 258. 892. 
 Knight, /•(', Knight v. (lardiner, 542, •'"143 
 
 .505, 714. 
 Knight V. Clark, 038, 708. 
 Knight V. Coales, 99. 
 Knight V. Duplessis, 215. 
 Knight V. Engle, 431 (iidda). 
 Knight V. (J. T. Ry. 487 {ndda). 
 Knight V. Prowse, 49. 
 Knight's Trusts, re, 8!)2. 
 Knill V. Prowse, 49. 
 Knott V. Cottee, 15!», 192. 
 Knottinger v. Barl)er, 394. 
 Knowles v. Roberts, 40, 448, 450. 
 
1 
 
 TABLE OF CASES CITED. 
 
 ! i 
 
 \ I 
 
 I 
 
 Knowlton v. Knowlton, 942. 
 Kohfreitsch v. Mcliityie, 430. 
 Koster v. HolHen, 218. 
 Koyle V. Wilcox, 840, 841. 
 Kramer v. Waymark, 5(>0 (uitila ). 
 Krehl v. Burrell, (i2, 74, 70. 
 Kronsbieii v. Gage, 212. 
 Kurtz V. iSpence, 44li, 447. 
 Kyle V. Barnes, 84(i. 
 Kynaston v. Mackiiuler, 808. 
 
 L. & M., re, 145. 
 
 Lalxuchere v. Ear! of VVhariu;liife. .">7. 
 
 Labadie v. Darling, 400. 
 
 Ladbrook v. Phillips, 833. 
 
 Ladd V. Puleson, Wil. 
 
 Ladds V. Matthew, 512. 
 
 Lady de la Pole v. Dick, 80. 
 
 Lady Hasting.s, /v, 337. 
 
 I^ady Langdale v. Briggs, .531. 
 
 Lafitte, ir, i)21. 
 
 La (xrange v. McAudrew, l(t7, •')7(>, '.till. 
 
 Lahey v. Bell, 1!)4. 
 
 Laidlaw v. Ashbaugh, 580. 
 
 Laidlaw v. .Tackes, 15. 
 
 Laidlaw v. Miller, 188, (iOO. 
 
 Liiidlaw Manufacturing Co. v. Miller, 31. 
 
 Laing, re, 2(). 
 
 Laing v. Avery, 7!)4. 
 
 Laing v. Matthews, 728. 
 
 Lainohberry v. Dunn, 4(M). 
 
 Laing v. Singerland, 832, 837, 830, 843, 844. 
 
 Laird v. Briggs, 75, 70, 44(5, 447, 4.50. 
 
 Laird v. Paton, 203, 200, 210, 213. 
 
 Laird v. Stanley, 485 (<ulda). 
 
 Lake V. Haseltine, 04(». 
 
 Lake v. Mcintosh, 012. 
 
 Lake Sup. Nat. Copjier Co., re, 81, 
 
 Lally V. Longhurst, 221, 223. 
 
 Lalonde v. Lalonde, 907. 
 
 Lalor V. Lalor, 779. 
 
 Lamare v. Dixon, 10. 
 
 Lamb, e.c p., 80. 
 
 Lamb V. Danby, 475. 
 
 Lamb v. Dodds, 538. 
 
 Lamb v. Mimster, 493. 
 
 Lamlwrt v. Hutchinson, 354, ,355. 
 
 Lambier v. Lambier, 770, 7f<l 
 
 Lam bourn Valley Ry. Co., n, 808. 
 
 Lambton v. Parkinson, .573, 804. 
 
 Laming v. Gee, 107. 
 
 Lamont v. Lamont, 1()9. 
 
 Lancey v. Brake, 640. 
 
 LaiiJ Credit Co. of Ireland, re, 348. 
 
 Land Credit Society, re, .507. 
 
 Land Corp. of Canada v. Puleston, 508. 
 
 Landed Estates Co. v. Weeding, 893. 
 
 Landman v. Crooks, 13, 100. 
 
 Landowners of W. England, 725. 
 
 Landry v. Ottawa, 2()7. 
 
 Lane, re, 305, 780, 
 
 Lane v. Debenham, 28. 
 
 Lane v. Eve, 594. 
 
 Lane v. Gray, 513. 
 
 Lane v. Young, 347. 
 
 Langdale v. Briggs, 39. 
 
 Landergan v. Feast, 042, (»43. 
 
 Langdon v. Robertson, 81. 
 
 Langen v. Tate, 548. 
 
 Langle v. Fetterly, 472. 
 
 Langley, f.'J parte, 59, 870, 874. 
 
 Langley v. E. of Oxford, 559. 
 
 Langtry, re, 7(>2. 
 
 Langtry v. Dumoulin, 79, 81, 145, 18,5, ISlt, 
 
 .5.34, 097, 9.35, 937. 
 Langstaffe v. Fenwick, 172. 
 Lanliam v. I'irie, 344, 
 Lann v. Church, 471. 
 Lannin v. Jermyn, 3,50. 
 La|>lante v. Peterboro, 470. 
 Laplante v. rtcsinien, 214, 779. 
 La))p v. Lapp, 14, 145, ((54. 
 Large v. Large, 400, 400. 
 Larkin v. Armstrong, 175, ,521, 094, 0!t5. 
 Larkin v. Mclnerney, 030. 
 Lash, re, 19. 
 Lashley v. Hogg, 180. 
 Laslett V. Cliffe, 387. 
 Latch V. Bright, 212. 
 Latch V. Latch, 340, 347, 3,5(t, 701. 
 Latimer v. Aylesbury & Bradford Jly. (!ii., 
 
 2H». 
 Latour V. Smith, 912, 923, 1078. 
 Latshaw v. Davis, 395. 
 Latter v. Dashwixxl, IfW. 
 Lauder v. Carrier, 428, 442. 
 Lauretta, Tlie, 079. 
 Lautour v. Holcoml)e, 947. 
 La very v. Sarsal, (52. 
 Lavery v. Wolfe, 48<), 489, 492, 500. 
 
 Ca 
 Hu 
 Jm 
 Pol 
 
 1 
 
 Lavin v. O'Nei 
 Jjavis v. Baker 
 Law v. Philby 
 Lawless v. Cha 
 Lawle.s8 v. Rad 
 Lawlor v. Mure 
 Lawraaon v. Bi 
 Lawrason v. Fi 
 Lawrance v. Lo 
 Lawrence v 
 Lawrence v, 
 Lawrence v 
 Lawrence v, 
 Lawrence v. Ric 
 Lawrenscn v. 
 
 Co., 298. 
 
 Lawrie v. Lees, ^ 
 
 Lawrie v. Rathb 
 
 Laws, re, 701, 
 
 Laws, re. Laws v 
 
 Lawsoii v. Hutcl 
 
 Lawson v. Laidh 
 
 Lawson v. Vacuii 
 
 Lay v. Alexander 
 
 Laycock, re, McG 
 
 Lazanis v. Mozle 
 
 Lazier v. Ranney, 
 
 Leach v. G. T. Ri 
 
 Leader, Tiie, 747. 
 
 Leader v. Hares, 2 
 
 Leadf^r Lane .\rbii 
 
 Leah, re, 471. 
 
 Leak v. Driffield, 
 
 Learning v. Woon, 
 
 Learoyd v. Whitel 
 
 Leathley v. McAn 
 
 Lechinere v. Brasi 
 
 Ijechmen^ Charltoi 
 
 Ledbrook v. Passn 
 
 Leddell V. MoDou] 
 
 Leflgerwo(Kl v. Le( 
 
 708. 
 Ltdix V. Ward. 35 
 Ledyard v, Campb 
 Ledyard v, McLea 
 liwiyard v, Thompt 
 Lee V. Button, 43,5. 
 Lee V, Colyer, 413, 
 Lee V, Hemingway 
 Ix-e V. Howes, 728, 
 
TABLE OF CASES CITED. 
 
 li 
 
 Lavin v. O'Neill, ia5, 777. 
 
 Ijavis V. Baker, «51. 
 
 Law V. Philby, 400, 42!), 614, GU, 618. 
 
 Lawless v. Chamberlain, 15 & 20 (adda). 
 
 Lawless V. Radford, 270, 857, !t40. 
 
 Lawlor v. Murchison, .503. 
 
 Lawrasoii v. Buckley, 25, 214. 
 
 Lawrason v. Fitzprerald, 3Hi), ()13, 925. 
 
 Lawrance v. Lord Norreys, 4S. 
 
 Lawrence v. Campbell, .50<). 
 
 Lawrence v. Humpliriea, 223, 327. 
 
 Lawrence v. .Judge, 10. 
 
 Lawrence v. Pomeroy, 18. 
 
 Lawrencf! v. Riclimond, 048. 
 
 Lawrensi'ii v. Dublin MetrojKjlitan Ry. 
 
 Co., 2!)S. 
 Lawrie v. Lees, 055. 
 Lawrie v. Ratlibnrn, 234. 
 Laws, re, 7()1. 
 
 Laws, ri', Laws v. Laws, 80, 178. 
 Lawson v. Hutchinscm, 14. 
 LawHon v. Laidlaw, 335, 3.38, 339, 075. 
 Lawson v. Vacuum Brake Co., .549. 
 Lay V. Alexander, 885. 
 Laycock, re, Mcdillivray v. .Tohnsun, 197. 
 Lazarus v. Mozley, .502. 
 Lazier v. Ranney, 383. 
 Leach V. (I. T. Ry. Co., 487 (adda). 
 Leader, The, 747. 
 Leader v. Hartw, 309, 314. 
 Leader L.ane .Vrbitration, re, 510. 
 Leah, re, 471. 
 
 Leak V. Driffield, XAS {adda). 
 LeaminR' v. W(M)n, 742, 743, 744. 
 Learoyd v. Whiteley, 10<). 
 Leathley v. Mc Andrew, 278, 340, 341, 343. 
 Lechmere v. Briuiier, 212. 
 lieohniere Ciiarl ton's Case, 715. 
 Ledbrook v. Passman, 235, 392. 
 Leddell v. MoDouffall, 2iH. 
 LedgerwiMwl v. Ledgerw(M)d, 1.58, 1(>5, 700 
 
 708. 
 Ledix V. Ward. 358. 
 Ledyard v. Cam|il)ell, 2.5. 
 Ledyanl v. McLean, 10!t7. 
 liwlyard v. Thompson, 023. 
 Lee V. liutton, 4.3.5. 
 Lee V. (Jolyer, 413. 
 Lee V. Hemingway, re, 892. 
 liw V. Howes, 728, 729. 
 
 Lee V. Magrath, 49. 
 
 Lee V. McKinly, 15. 
 
 Lee V. McMahon, 412. 
 
 Lee V. Sturrock, 184, IV)2. 
 
 Leech v. Williamson, 878, 879. 
 
 Lees, re, 932, 933. 
 
 Lees V. Fisher, 014. 
 
 Lees V. Kendall, 910. 
 
 Lees V. Patterson, 410. 
 
 Lees V. Stanley, 911. 
 
 Leeson v. Lemon, 8.5, 879. 
 
 Leete v. Leete, 519. 
 
 Legacy v. Pitcher, 583. 
 I Legarie v. Canada Loan and Bdg. Soc. 925. 
 
 Legg V. Mathie.son, 217. 
 
 Legge V. Boyd, 443. 
 
 Leggott V. MetroixJitan Ry. Co., 108. 
 
 Leigh, re, 99. 
 
 Leigh, re, Leigh v. L»'igh, 783, 784. 
 
 Leigh, re, Rowclitfe v. Leigli, 431, 498, 513,. 
 52i). 
 
 Leigh V. Br(K)ks, 99. 
 i Leigh V. Dickeson, 109. 
 i Leitch V. Abbott, 4.33, .503, 504. 
 ; Leith v. Dickson, 780. 
 
 Leith V. Irvine, 172. 
 
 Le May v. McRiiy, 14. 
 
 Lemon v. Lemon, 739. 
 
 Lem(jn & Peterson, re, 9.30. 
 
 Leonard v. Clydesdale, 32i>. 
 
 i\ 
 
 Leonard & Klli.sTr.ade Mark, .'■, VI7. 
 
 Leonard v. Leonard, 520, 9i)7. 
 
 Lerculey v. Harrison, 359. 
 
 Leroux v. Lanthier, 247, 947. 
 
 Leslie v. Calvin, 503. 
 
 Leslie v. Cave, 509, 511. 
 
 Leslie v. Clifford, 579. 
 
 Leslie v. Preston, 211. 
 
 Lett v. Randall, 20.5. 
 
 Lett V. St. Lawrence, 89 (nililn). 
 
 Letts V. Hutchin.s, 395. 
 
 Levey re. Levin v. Levin, 5.54. 
 
 Levinaon, v. Syer, 623. 
 
 Lewin, re, 434. 
 
 Lewin v. J(mes, 225. 
 
 Lewin v. Trimming, 894. 
 
 Lewin v. Wilson, 230. 
 
 Lewine v. Savage, 659. 
 
 Lewit, re, 471. 
 
 Lewis V. Aberdare & P. Co., 235. 
 
;. ;,r. 
 
 lii 
 
 TABLE OF CASES CITED. 
 
 \M: ■ iS 
 
 ^t"< 
 
 Lewis V. BarkeH, 580. 
 
 Lewis, re, Jackson v. Scott, 84, 85. 
 
 Lewin v. Herbert, 302. 
 
 Lewis V. Knight, 834. 
 
 Lewis V. Nobbs, 340. 
 
 Lewis V. Talbot Street (iravel Road, HI, iVM 
 
 Lewis V. Rumney, 7()2. 
 
 Lewis V. Williams, 77. 
 
 Ley V. Brown, 470. 
 
 Leyman v. Latimer, 421. 
 
 L'hontiux V. Hong Kong, etc., Curp., 2!t7, 
 
 302. 
 Liardet v. Hammond Elecric Light, 44N. 
 Liddell v. IJeacon, 325, .32(). 
 Life Assurance Co. v. Siddal, 100. 
 Life Ass(Xiiation of Scotland v. Wiilkcf. 
 
 175, 771, 772. 
 Light V. Anticosti, 177, 548. 
 Light V. Light, .374. 
 Lightowler v. Lightowler, 30.5. 
 Lincoln Paper Mills Co. v. St. Catharines 
 
 & Niagara Central Ry. C, 217 (ti<lil(i). 
 Lind V. Isle of Wliite Firry Co., 503. 
 Lindsay v. Bank of Montreal, 152, 222. 
 Lindsay v. Wells, 833. 
 Lindsey Petmlevim Co. v. Hiird, (>73. 
 Lindsey Petroleum, etc., v. Panh'i', 500. 
 Linet, re, 800. 
 Linfoot V. Duncombe, 313. 
 Ling V. Smith, 34(i. 
 LiiJsett V. Perdue, 780 (adihi). 
 Lisbon V. Heddle, .305. 
 Liscombe v. (iross, 202. 
 Lister v. Wood, 78. 
 Litchfield v. . I ones, ()25. 
 LitlegiKxl, ex. p. 723. 
 Little V. Brtniker, 35. 
 Little V. Colliery Co., 400. 
 Little V. Hawkins, 322. 
 Little V. Lines, 73. 
 Little V. I'hiliMjtts, OK;. 
 Litth" V. Wright, 044. 
 Liveniois v. Bailey, 002. 
 Liverpool & Brazil, etc.. Co. v. Lomlon & 
 
 St. Katherine, etc., Co., ,588. 
 Liver|)ool, etc., Co. v. London Navigation, 
 
 LiveriMH)!, etc., v. Smith, 57. 
 
 Liverp(K)l, etc., Stores Assocn. v. Egerton, 
 
 Livesey v. Harding, 25.5. 
 
 Livingstone v. Wood, (5.54. 
 
 Livingstone v. Western Assurance Co. 
 
 232. 
 Lloyd, re, 218, 310. 
 Lloyd, Allen v. Lloyd, In re, 01. 
 Lloyd's Banking Co. v. Ogle, 025, Clio. 
 Lloyd V. Cheetham, 718. 
 Lloyd V. Dimmack, 321, .5(il. 
 Lloyd V. Jones, 103, l(i8. 
 Lloyd V. Kent, 013. 
 Lloyd V. Lewis, 05. 
 Lloyd V. Wallace, 735, 741, 743, 744. 
 Lloyd V. Ward, 42(), 428, 470. 
 Locke V. White, 451. 
 Lockett V. Cary, 470. 
 Lockiiart v. (iray, 744. 
 Lockhart v. Hardy, 302, 303. 
 Lockie V. Tennant, 303, 3().5, 37.3. 
 Locking V. Halstead, l!tO. 
 L(X3kington v. King, 420. 
 Lockw<K)d V. 15ew, 551. 
 Lockwowl V. Nash, 754. 
 Loco. Engine; Co. v. Copeland 
 Lodge V. Prichard, 181. 
 Lolande v. Lolande, 518, 510. 
 Lomax V. Kilpin, 308. 
 London, etc. v. Digby, (543. 
 London, etc. v. Willis, 020. 
 London & Birndngiiain R.v. Co., n; 2til. 
 London & Blackwell Ry. Co. v. Cross, .Vi. 
 London & Cana<lian Loan & x\gency Co. ». 
 
 Everett, 012. 
 London & Canadian Loan & .\gency Co. v. ] 
 
 Craham, 208, 200. 
 Londoii & Canadian Loan, etc;, v. Merritt, | 
 
 L)7, 70.5, 718, 720, 730, 748. 
 London & Canadian Loan & .\gency Co. v. | 
 
 Morrison, .388, 38i». 
 London & Cantidian Loan & Agency Co. v. | 
 
 Pulford, .388, .380. 
 London & Blackwell Ry. C(j. v. Cross, .V). 
 London C. & D. v. S. E. R., ■58(;. 
 London Can. L. Co. v. Murphy, 717, 8.S8. 
 London Canadian L. & A. Co. v. Thoui])*!!!, | 
 
 2!»0. 
 London & County Banking Co. v. Lewis, | 
 
 57. 
 London & Discount Alliance Co. v, Kerr, | 
 
 338. 
 
 Lord iSalisbur' 
 
TABLE OF OASES CITED. 
 
 liii 
 
 London Guarantee Co. v. Shields, 300, 30G. 
 London & Lancashire v. B. A. Ass., 99. 
 I/)ndon H. & B. Ry., and Tp. of Waw.anosh, 
 
 54, 8G1. 
 London Land Cf). v. Hanis, 579. 
 London Loan Co. v. Smith, 38(5. 
 London Mutual v. .Facob, 73.5. 
 London Road Car Co. v. Lelly, 940. 
 London Scottish Benefit Soc. v. Ctioiicy, 
 
 KMill. 
 Lindijii Syiulicate v. Lord, ti44. 
 London Tilbury Ry. v. Kirks, .502. 
 London Wharfage & Warehouse Co., n, 
 
 725. 
 L(iiidou & Vorksiiire v. Cooix-r, 505. 
 Long V. C'rossley. 354, 357, 358, 44<i, 44S. 
 Ijong V. Hancock, 9, 789. 
 Long V. Loner, 322, 717, 720. 
 Tjong V. Storie, 330. 
 Longlxtunie v. Fisher, 314, .".51. 
 I/Higdon V. Roberts(»n, 91. 
 Longman v. Kast, 95, 97, 99, 1(M». 
 fjongstatf V. Blenkharn, .")57. 
 L(Hiney V. ( 'aims, 925. 
 Lord, ir. Lord v. Lon), 181, 1,S3. 
 Lord V. Wornileighton, 471. 
 Lord Cardwell v. Tonilinsoii, 493. 
 Lord 1 )()rchester v. Petrie, 274. 
 Lord .Salisbury v. Nugent, 131?. 
 Lorinier v. Lorinier, 107. 
 Loring v. Loring, 102. 
 liOscoinbe v. Russell. 13. 
 L(is<M' V. Armstrong, 28G, 313. 
 Longhead v. Stubbs, 2(Hi, 422. 
 Lonndes v. liettle, 55. 
 Li it V. Canada Farmers' Ins. Co.. 70(1. 
 Love, re, 780. 
 
 Lovwiay v. Chapman, 23i5. 
 Lovelace v. Harrington, 470, 48S. 
 Loveless v. Clarke, 175, 771. 
 Lovell V. (Jibson, 330. 
 Lovell V. Holland, 359. 
 Lovell V. Wallis, .541. 
 Lovell v..Wardroi)er, 882. 
 I/)vcly V. White, 753. 
 Lovesy V. Smith, 342. 
 Lovett, IV, Ambler v. Lindsay, 347. 
 Lowden v. Blakey, 'm. 
 Lovtden V. Martin, «2tl. 
 I-ow v. Fox, 'XilCi. 
 
 Low V. Morrison, 804. 
 
 Lowe V. Holme, 897. 
 
 Lowe V. Pears, 010. 
 
 Lowe •' Watson, 502, .5»»3. 
 
 Lowry v. Fulton, 340. 
 
 Lows, ex parte, 593. 
 
 Lowson V. Canada Farmers" Ins. Co., 36^ 
 
 083, G!K), 091, ()92, 7WJ, 720. 
 Lowther v. Heaver, 07, 447, 453. 
 Lowther v. Hunter, 230, 231. 
 Loyd V. Wark, 20. 
 Lucas V. Cruickshank, 941. 
 Lucas V. Fraser, 478, 034, 911. 
 Lucas V. Harris, 745. 
 Lucas V. Peacock 255. 
 Lucas V. Itoss, 283, ()2G. 
 Luckie, re, 301, 408. 
 Lucus V. Taylor, ;">84. 
 Lucy V. Wood, 742. 
 Ludford, /■<', 72.3. 
 Ludmore, rr, 723. 
 
 Luke V. South Kensington, 318, 354. 
 Lunib V. Beaumont, 429, 873. 
 Luniley v. Brookes, .593. 
 Luniley v. VVagner, 17. 
 Lunisden v. Davis, 589, 075. 
 Lumsden v. Winter, 40!), 43(>, 505. 
 Lund V. Blanshard, 349. 
 Lund V. Campbell, 895, 897. 
 Lundy v. Dickson, 744. 
 Limdy v. McCulla, 40«i. 
 Luney v. Essery, 97, 98, 101. 
 Luther V. Ward, 947. 
 Lydall v. Martinson, 3.55, 597. 
 Lydney v. Bird, 942. 
 Lyall, re, 10(i9. 
 Lybbe v. Hart, 50. 
 Lyell V. Kennedy, 483, 487, 493, 495, 504,. 
 
 .5(x;, :m\ .5io. 
 
 Lynum v. Brethron, .5.54. 
 
 Lyman v. Siuvrr, W)3. 
 
 Lyman v. Kirkpatrick, 391. 
 
 Lynch v. Macdonald, 83, 411, 414. 
 
 Lynch v. O'Hara, 534. 
 
 Lynch v. Skerrett, 90 (mlJa). 
 
 Lynskey v. Can. Pacific Ry. Co., .544 («(/<<«)- 
 
 Lyon, ex p., 80, 79(i, 802, 803. 
 
 Lyon V. McKay, .509. 
 
 Lyon V. Morris. 74, 883. 
 
 Lyon V. Tweddell, 432, 513 649., 
 
liv 
 
 TABLE OF OASES CITED. 
 
 'il5 :;i| 
 
 Lyon V. Walls, 833. 
 Lyons, re, 794, 925. 
 Lyons v. Cohen, 422. 
 Lysaght v. Edwards, r^Sl. 
 Lysaght v. McCxrath, 721. 
 Lyster v. Kirkpatrick, 20. 
 
 M. C. CauKTon, re, 930. 
 
 Macara v. (iwynne, 585. 
 
 Mjicara v. Snow, 42(>. 
 
 Machell v. Campbfll, 389. 
 
 Macgregor v. Clay, 898. 
 
 Mackley v. Chillingworth, 921, 923. 
 
 Mack V. Ward, 744. 
 
 Mackreth v. Nicholson. 289. 
 
 Maddocks v. Mulines, ()()7. 
 
 Madras Irrigation Co., 579. 
 
 Maddever, re, 789. 
 
 Magnay v. Davidson, 3.30. 
 
 Magnus v. National Bank of Scotland, 570. 
 
 Magnus v. Queensland Nat. Bank, 240. 
 
 Magurn v. Magurn, 519, 907. 
 
 Mahon v. McLean, 18. 
 
 Mahoney v. Nat. Widows' Life Ass. Fund, 
 
 608. 
 Mair v. Anderson, .548. 
 M.air v. Kerr, 012. 
 Maitland v. (41ob<' Printing Co., 484. 
 Major V. McKenzie, 898. 
 Makin v. Barrow, 5(i. 
 Miilcohnson v. Hamilton I'rov. 001. 
 Malcolnison & Wade, re, 932. 
 Mullocl) V. Plunkett, 514. 
 Miilloch V. Johnson, 898. 
 Mallory v. Mallory, 340, 519. 
 Malmesbury v. Budd, 58. 
 Malone v. Malonc, 3L'C., (HO, 012. 
 Managers of Metrojiolitaii Asyliun v. Hill, 
 
 001. 
 Manhy v. Bewicke, .500, 5112, 504, 509, 942. 
 Manby v. Manby, 277, 702. 
 Manchester, etc., Ry. Co. v. Brooks, 318. 
 Manciiester, etc. v. Parkinson, 01, 741, 747, 
 
 748, 749. 
 Manchester Economic B. S., re, 81. 
 Manchester Val de Travers Paving Co. v. 
 
 Slagg, 484, ,500. 
 Manisty v. Kenealy, 382. 
 Mann v. Perry, 473, 491, 514, 715. 
 
 Manners v. Furze, 218. 
 
 Manners v. Mew, 31, 07. 
 
 Manning v. Ashall, ()80. 
 
 Manning v. Birely, .521. 
 
 Manning v. Moriarty, 028. 
 
 Manning v. Thompson, 87. 
 
 Mansel, re, Rhodes v. Jenkins, 81. 
 
 Mansel v. Clanricarde, 542. 
 
 Mansel v. Norton, 542. 
 
 Mansergh v. Rimell, 284. 
 
 Manson v. Baillie, 173. 
 
 Manson v. Manson, 203, 205. 
 
 Mansfm v. Thacker, 200. 
 
 Maple V. Shrewsbury, 509. 
 
 Maple V. Woodgate, 309. 
 
 Mapleson v. Masini, 410, 940, 
 
 March v. Bailey, 504. 
 
 Margate Pier, etc., Co. v. Perry, 399, 631. 
 
 (i32. 
 Maritime Bank v, Stewart, 45. 
 Markiiam, re, 79. 
 Markle v. Ross, 187, 225, 09.5. 
 Marks v. Windsor, 87 (aikla). 
 Marner v. Brigiit, 3()(), 370, 371. 
 Manpiis of Bute v. .lames, 488. 
 Marr v. Littlewood, 215. 
 Marrljtt v. Anchor, etc., 500. 
 Marriott v. Chamberlain, 431. 
 Marriott v. Marriott, 4.50, 453. 
 Marris v. Ingram, 710. 
 Maroney v. Taylor, 
 Marsden, re, 933. 
 Marsden v. Lancashire & Y<jrkshire Ky. 
 
 Co., 898, 899. 
 Marsh, re. 
 
 Marsh v. Beard, 944. 
 Marsh v. Isaacs, .598, (i03. 
 Marsii V. Keith, 507. 
 Marsh v. Mar.sh, 349, 705. 
 Marsli V. Pontefract, etc., 429, 445, 4J9. 
 Marsli & (Iranville, re, 210. 
 Marsliall, e:e purte, ()29. 
 Marshall, re, 27, 192, 352. 
 Marsliall, re. Fowler v. Marsliall, 340, T'U. 
 Marshall v. Aiglewood, ,531. 
 Marshall v. Marshall, 40, .305. 
 Marsliall v. Piatt, 20. 
 Marshall v. Shrewsbury, 322, 397. 
 Marshall v. Watson, 13. 
 Marshfield v. Hutchings, 228, 
 
 Martano v, Mai 
 Martens v. Bim 
 Marter & Grave 
 Martha v. McK 
 Martin, re, 2.58, 
 Martin, re, Hun 
 Martin v. Banni 
 Martin v. Beauc 
 Martin v. Boula 
 Martin v. Butch 
 Martin v. Evans 
 .Martin v. Fife, 
 .Martin v. (iale, 
 Martin v. Kenne 
 Martin v. Laffert 
 Martin 
 W. 
 
 v. Londo 
 Co., 387. 
 
 Martii 
 
 McCha 
 
 Mile.s, 
 
 Nairn, 
 
 Ross, 5 
 
 Rus.sell 
 
 Treach 
 
 Martin v. McAlp 
 
 Martin v. 
 
 Martin v. 
 
 Martin v. 
 
 Martin v. 
 
 Martin v. 
 
 Martin v. 
 
 Martin v. 
 
 Martiiidale v. Clal 
 
 .Martinson v. Clov 
 
 Martyn v. Kenner 
 
 Mashach v. Andei 
 
 Mason, re. Mason 
 
 Mason, re. Turner 
 
 Mason V. Biddle, ( 
 
 Mason V. Brentini 
 
 Mason V. (iiand J 
 
 Mason v. Harris, ', 
 
 Mason v. Jeffrey, 
 
 Mason v. Kiddle, ( 
 
 Mason V. Seney, 1. 
 
 Mason V. Westoby 
 
 Masonic v. (ien. L 
 
 Massam V. Thorlei 
 
 Mass(. V. Masse, 81 
 
 Ma.sscy, re, 022, ;>3 
 
 Massey v. Allen, 9 
 
 Massey v. Haines, 
 
 Massey v. Rapelge 
 
 Massey Mg. Co., r 
 
 Massey Co. v. Gam 
 
 Massie v. Toronto 
 
 Masson v. Grand J 
 
TABLE OF CASES CITED. 
 
 Iv 
 
 Martono v. Mann, 340. 
 
 Mftrtenn v. Birney, 477, 637. 
 
 Marter & (rravenhunit, re, 54 (addti). 
 
 Martha v. McKenna, 78r. 
 
 Martin, re, 258, 933. 
 
 Martin, re. Hunt v. Chambers, 83, 4.'J0. 
 
 Martin v. Bannister, 120. 
 
 Martin v. Bpanchamp, 941. 
 
 Martin v. litiulanger, 234, 459, 774. 
 
 Martin v. Butchard, 508. 
 
 Martin v. Evans, 034. 
 
 Martin v. Fife, 99. 
 
 Martin v. (Jale, (i44. 
 
 Martin v. Kennedy, 18, 421. 
 
 Martin v. Lafferty, 3(Kt, 300. 
 
 Martin v. London, Chatham & IJover, R. 
 
 W. Co., 387. 
 Martin v. McAlpin, 023. 
 Martin v. Martin, 29. 
 Martin v. MeCiiarles, 5.55. 
 Martin v. Miles, 2;}0. 
 Martin v. Nairn, .5.38. 
 Martin v. Koss, 584. 
 Martin v. Russell. 943. 
 Martin v. Treacher, 483, 499. 
 Martindale v. Clarkson, 238. 
 Martinson v. Clowes, 197. 
 Martyn v. Kennedy, 18. 
 Mashach v. Anderson, 579. 
 MaMon, re. Mason v. Cattley, 507. 
 Mason, re, Turner v. Mason, 3(>1. 
 Mason V. Biddle, 023. 
 Mason V. Brentini, 890. 
 Mason V. (iiand Junction Ry. Co., 50. 
 Mason v. Harris, 3(iO, 401. 
 Mason v. Jeffrey, 944. 
 Mason v. Kiddle, 023. 
 Mason V. Seney, 185, 383, (i48, 0.57, 0f58. 
 Mason v. Westoby, ,59. 
 Masonic v. (»en. Life Ass. Co., re,, 701. 
 Massam V. Thorley'Ml<\K)d Co., ,542. 
 Miisse V. Masse, 84. 
 Masscy, )•(■, 922, 932. 
 Massey v. Allen, 945. 
 Massey v. Haines, 305. 
 Massey v. Ra|)elge, 287. 
 Massey Mg. Co., re, ,54, 800. 
 Massey C(j. v. Gandry, 880. 
 Massie v. Toronto Printing Co., 744. 
 Masson v. Grand Junction Ry. Co., 56. 
 
 Masuret v. Landville, 886. 
 
 Mathers v. Halliwell, 386. 
 
 Mathers v. Short, 042. 
 
 MathewH v. Mears, 502. 
 
 Mathewn v. Munster, (i.50. 
 
 Matthews v. Antrobus. .573, 
 
 Matthias v. Delcacho, 511. 
 
 Matthias v. Yetts, 194, 319. 
 
 Maulxjurciuet v. Wyse, 87. 
 
 Mauellin v. Rogers, 477, 478. 
 
 Maughan v. Walker, 574. 
 
 Mavety v. Montgomery, 383. 
 
 Mavor V. Dry, 4.52. 
 
 May, q. t. V. Dettrick, .574. 
 
 May V. Head. 004. 
 
 May V. Newton, 342, 340, 351, 353, 530. 707 
 
 May V. Solby, 350. 
 
 May V. Tiionipson, 75, 70, 78. 
 
 Maybery v. Brooking, 353, 3.54. 
 
 Mayne v. Hawkey, 470. 
 
 Mayor v. Collins, 4!t7 (nihli). 
 
 Mayor v. Murray, 105. 
 
 Mayor of Birmingham v. Allen, 97. 
 
 Mayor of Bristol v. Cox, 500, .508, 511. 
 
 Mayor of Coventry's Case, 804. 
 
 Mayor of Devizes v. Clark, 88. 
 
 Mayor of London v. Joint Stock Bank, 750. 
 
 Mayor of Norwich v. Brown, 382. 
 
 ISraxwell V. Maxwell, .519. 917. 
 
 Meacham v. Cooi)er, 187. 
 
 Meachani v. Drajjer. 21.5, 348. 
 
 Mead v. Etobicoke, 304 (itihln). 
 
 Meager v. I'ellew, 337. 
 
 Measures v. Thomas, 3()3. 371. 
 
 Meddowcroft v. Campbell, 335. 
 
 Meo v. Denbigh, 278. 
 
 Meehan v. Meehan, 404. 
 
 Meek V. Yarmouth, 484. 
 
 Meighen v. Buell, 173. 
 
 IMein, re, 290, 378, .524. 
 
 Meir v. Wilson, 332. 
 
 MellK)urne v. Toronto, 914 (mhla). 
 
 Meld rum v. Scorer, 325. 
 
 Mellish V. Williams, 05". 
 
 Mellish V. Petherick, 829. 
 
 Mellor V. Porter, 612. 
 
 Mellor V. Sidebottom, 042. 
 
 Mellor V. Swire, 705. 
 
 Mellor V. Thompson, .58, 71, 497, 594, 716. 
 
 Meluish V. Milton, 872, 874. 
 
 ' -ft! 
 
■'In 
 
 Ivi 
 
 TABLE OF CASES CITED. 
 
 Moiides V. (Juedalla, 32!t, 330. 
 
 Moneilly v. Mc Ken/Jo, 222. 
 
 Menhiniek v. 'rnrner, 44i>. 
 
 Menier v. HiMipcr, .3(i(l. 
 
 Meniier v. LiMtcli, 8t). 
 
 Mmizjch v. Ti)ri)iit()& Ottiiuii, c'tc. 4S(>. 
 
 Meiiy.iew v. White, 2!). 
 
 Mcrciiiitilf KivfT I'liite Co. v. Isiuu'. 4lil. 
 
 Mcreer, cr /I. re, Wise, 7H!(. 
 
 Mercer v. (Jrowes, !(10. 
 
 Mercer v. Hewstmi, li*. 
 
 Mc^'cer V. Ijiiwrence, 721. 
 
 Mercer v. Voift, 584. 
 
 Mercers C(f., cr /tKrtf, S!)2. 
 
 Merclmnts Hank v. IJrookes, 7'-<-. 
 
 Mercliauts liaiik 
 Merchants Hank 
 Mercliants Hank 
 Meacliaiits Hank 
 Alerchants Hank 
 Merchants Hank 
 Merchants Hank 
 \[erchants liank 
 
 Chirk, 7«H. 
 Caniphell, 724. '.W. 
 (J rant, iiHii. 
 llerson, H7!t. 
 Lucas, ri47. 
 MiMiteith, 17!t, 348. 
 I'ierson, 4!)l, 4!I2, .'.14. 
 
 Tisihiie, nm. 
 
 Merchants l}ank v. Vaii.'vUen, rf, 127. 
 Mercliants Kxiires'-- (.'c>. v. Morton, .");")(». 
 Mercier v. Wilhanis, (J41. 
 Meredith McCalH, (>14. 
 Meriden v. Lee, (i23. 
 Merkely v. Cas.sehnan, ;")14.- 
 Men-ewetlier v. Melli.sii, 470. 
 Merriain v. (Tonk, lG(i, 232. 
 Merrill v. AfcFarren, 73!l. 
 Merritt v. Stephenson, 22(!. 
 Merry v. Nicholls, (>72. 
 Mersey Steel, etc., Co. v. Xaylor, 40". 
 Mersey Steainshi|) Co. v. Shuttle\vorth,(i44. 
 Merten.s v. Haigii, 502. 
 Mes.senger, )t, 4(>!t. 
 Metcalf V. Chanii)ion, KiG. 
 Metcalf V. lJa\is, 270. 
 Metcalfe, re, 180. 
 Metcalfe, iv, Hicks v. May, 777. 
 Metcalfe v. British Tea Ash., ,57<>. 
 Metcalfe v. Camprose, KMS. 
 Metcalfe v. Davis, 273. 
 Metropolitan Asylum District v. Hill, 75. 
 Metropolitan li. & S. S<jc. v. Rodden, (125. 
 Metrorx)litan Bank v, Pooly, 43. 
 Metropolitan Board of Works v. New River 
 Co., 530, .'532. 
 
 MetroiKjlitan Board of Works v. .Sant, 3!(. 
 Metropolitan Brush Co., ir. 485. 
 Metrojiolitan Inner Circle Ry. v. .Metro- 
 
 IM.litan Hy. Co., .585. 
 MetroixJitaii L. & S. Co. v. Mara, 740. 
 Metropolitan Ry. Co. v. Defries, 421, 424, 
 
 42! ». 
 Metro|)olitan Ky. Co. v. Wright, (if>2. 
 Mexican Co. v. Moldonado, .5(5 (iiif(/ii). 
 Meyers v. Defries, 8!t8. 
 Meyers v. Harrison, 38t». 
 Meyers v. Kendrick. 73.5, 738, 741. 
 Meyers v. Meyers, 717, 71^, 71!l, 7(»*>. 
 Meyers v. Myers, 718. 
 Meyers v. R<ibertson, 4(t8. 
 Meyniott v. Meyniott, ]()2. 
 Meyrick v. James, 542. 
 Michael, rf, Dessaii v. Lewin, (135. 
 Michel V. Mutcli, (i5(», (>5,5. 
 Michell V, Wilson, ()(i4. 
 Micheller v. Irwin, 20(), 207. 
 Michelltree v. Irvine, 202. 
 Mitchie V. Reynolds, 8(i, 180, 723. 
 Mickletliwait v. Micklethwaite, 16. 
 Micklethwaite v. Fletcher, 71(i. 
 Middleuias v. Wilson, 445. 
 Middleton v. Dodswell, 215. 
 Middleton v. Pollock, 788. 
 Midland v. .lohnston, 055. 
 Midland & (i. W. Ry. v. Johnson, 52(i. 
 Midland Ry. Co. v. Ontario RoUin-,' Mills, 
 
 412. 
 Milan Tramways Co., >•'', <'.•• parte, Theys, 
 
 407, 408. 
 Milanese, The, 35. 
 Mildniay v. Lord Methuen, 261. 
 Mildmay v. Qnicke, '.114. 
 Miles v. Burns, ;i38. 
 Miles v. Cameron, 392. 
 Miles v. Roe, 578. 
 Miles v. Thomas. 13. 
 Milissich v. Lloyds, .588, (>40, 041. 
 Mill v. Hill, Kii), 170. 
 Mill V. Mill, 331. 
 
 Millar, re, Millar v. Cline, !»31, i»3a 
 Millar v. Cline, i»2t». 
 Millar v Craig, 102. 
 Millard v. Baddeley, GJW. 
 Miller, re, Millar v. Cline, !)31. 
 Miller, re, 378, 44.5, 524. 
 
 Miller v. Attor 
 Miller v. Browi 
 Miller v. Confei 
 Miller v. Harpe 
 Miller v. Huddl 
 Miller v. MoNa 
 Miller v. Miller, 
 Miller v. Mynn, 
 Miller v. Nolan, 
 Miller v. Ostram 
 Miller v. Pilling, 
 Miller v. Stillwe 
 Miller v. Toulmi 
 Miller's Case, OSfi 
 Milligan v. Sills, 
 Millington v. Loi 
 Mills, re, 892. 
 Mills V. Carman, 
 .Mills v. Choate, £ 
 .Mills v. Cottle, 7\ 
 Mills V. Dixon, li^ 
 Mills V. Fox, 27. 
 Mills V. Griffiths, 
 .Mills V. Jennings, 
 Mills V. Mills, 177 
 .Mills V. Northern I 
 
 m, 21(5. 
 Milne v. Milne, 51 
 Milner v. Clark & 
 Miltown v. Stuart, 
 Minet v. Morgan, 
 Minkler v. McMill 
 Minton v. Metcalfe 
 Mitchell, re. Mite 
 
 479. 
 
 Mitchell v. Barrett 
 Mitchell V. Cameri 
 
 tion, 130. 
 Mitchell V. Condy, 
 Mitchell V. Darley 
 
 501, 874, 899. 
 Mitchell V. Draper, 
 Mitchell V. Lee, 744 
 Mitehell V. Little, 4 
 Mitchell V. Martin, 
 Mitchell V. Mitchell 
 Mitchell V. McGaffe 
 Mitchell V. Noble, & 
 Mitchell V, Richey, 
 Mitchell V. Simpson, 
 J.A. 
 
TABLE OF OABES CITED. 
 
 Ivii 
 
 Miller v. Attomey-fTeneral, 21. 
 
 Miller v. Brown, 80, 81, 224, 22(i. 
 
 Miller v. Confederation Life, etc., .580. 
 
 Miller v. Harper, 433, ."MM. 
 
 Miller v. Huddlestone, 5(S4, 718, 744. 
 
 Miller v. MoNaughton, 154, 
 
 Miller v. Miller, .520, .521. 
 
 Miller v. Mynn, 745. 
 
 Miller v. Nolan, 878. 
 
 Miller v. Ostrander, 327. 
 
 Miller v. Pilling, 97, 98, !«), KMI, 101. 
 
 Miller v. Stillwell, 091. 
 
 Miller v. Toulmin, 640. 
 
 Miller's Ca«e, G56. 
 
 Milligan v. Sills, 950 ((ulda). 
 
 Millington v. Loring, 429, 445, 449. 
 
 Mills, re, 892. 
 
 Mills V. Carman, 433. 
 
 Mills V. Choate, 384. 
 
 Mills V. Cottle, 770. 
 
 Mills V. Dixon, 189, 190, 23«, B94. 
 
 Mills V. Fox, 27. 
 
 Mills V. (Jriffiths, 360. 
 
 Mills V. Jennings, 325, 326, 327. 
 
 Mills V. Mills, 177, 548. 
 
 .Mills V. Northern Ry. of Buenos Ay res Co. . 
 W), 216. 
 
 Millie V. Milne, .519. 
 
 Milner v. Clark & G. T. Ky. Co., 484. 
 
 Miltown V. Stuart, 558. 
 
 Minet v. Morgan, 504, .506, 508, .509. 
 
 Minkler v. McMillan, 487. 
 
 Minton v. Metcalfe, 399, 637. 
 
 Mitchell, re, Mitchell v. Mitchell, 16(i, 
 479. 
 
 Mitchell V. Barrett, .565. 
 
 Mitchell V. Cameron, West Huron Elec- 
 tion, 130. 
 
 Mitchell V. Condy, 691. 
 
 Mitchell V. Darley Main Colliery Co., 74, 
 501, 874, 899. 
 
 Mitchell V. Draper, 719. 
 
 Mitchell V. Lee, 744, 754. 
 
 Mitchell V. Little, 493. 
 
 Mitchell V. Martin, 925. 
 
 Mitchell V. Mitchell, 187, 188, 200, «i94. 
 
 Mitchell V. McGaffey, 16. 
 
 Mitchell V. Noble, 836. 
 
 Mitchell V. Richey, 250, 784. 
 
 Mitchell V. Simpson, 834. 
 J.A. 
 
 Mitchell V. Strathy, 156, 391, 646. 
 
 Mitchell V. Vandusen, 893, 894, 899, 906. 
 
 Mitchell V. Wilson, 664. 
 
 M. Moxham, The, 549. 
 
 Moffatt, re, 932. 
 
 Moffatt V. Bank of Ui)i)er Canada, 233. 
 
 Moffatt V. Hyde, 648, 654. 
 
 Moffatt V. Prentice, 4f«.5, ,544. 
 
 Moffatt V. Ruddle, 524. 
 
 Moffatt V. White, 384. 
 
 Moir V. Mudie, 470. 
 
 Mole V. Smith, 334. 
 
 Molesworth v. Robins, 469. 
 
 Molloch V. Plunkett, 728. 
 
 Molloy T. Kilby, 359, 484, 497. 
 
 Molloy V. Lewers, 450. 
 
 Molloy V. Shaw, 832, 834. 
 
 Moloney v. Moloney, 635. 
 
 Molson's Bank v. Dillabaugh, 459 (adda), 
 517 {(iddn). 
 
 Molson's Bank v. Drew, 338. 
 
 Molson's Bank v. Halter, 789. 
 
 Molson's Bank v. McMeekin, 729. 
 
 Monaghan v. Dobbin, .538, 714. 
 
 Monck V. Stuart, 213, 
 
 Monkseaton, The, 893. 
 
 Monro v. McLeod, 946. 
 
 Monro v. Rendall, 100. 
 
 Montagu, re, 66.1 
 
 Montagu v. Land Co., 404, 619. 
 
 Monteith, re. Merchants Bank v. Monteith, 
 698, 909. 
 
 Monteith v. Merchants Bank, 153, 762. 
 
 Monteith v. Walsh, 408, 763. 
 
 Montgomery v. Boucher, 89. 
 
 Montgomery v, Calland, 163, 
 
 Montgomery v, Douglas, 329, 
 
 Montgomery v, Shortis, 152, 1.53, 187, 224» 
 323. 
 
 Montgomerie v. Ferris, 607. 
 
 Mono, re, 794. 
 
 Montreal v. St Sulpice, 698 {adda). 
 
 Montreal Bank v. Baker, 2M. 
 
 Moodie v. Leslie, 165, 186, 763, 768. 
 
 Moody V. Pheasant, 610. 
 
 Moody V. Tyrrell, 391. 
 j Moon V. Clarke, 169. 
 I Mooney v. M<x)ney, 584. 
 I Mooney v. Prevost, 213. 
 I Moor V. Boyd, 585. 
 
 E 
 
 ■^|!l 
 
 J» li.i 
 
Iviii 
 
 TABLE OP CASES CITED. 
 
 Moorp. re, 27, 3f)0, 782. 
 
 Moore, re, Ker v. Moore, 13, 21.'). 
 
 Moore n\ McAlpin v. Moore, i;<, MK 
 
 Moorf, <■'■ p., re. Faithful, 707. 
 
 Moore V. Alwill, 451. 
 
 Moore v. lioytl, 484. 
 
 Moore v. Connecticut Mutual, 7W, <>4(t. 
 
 Moore v. Frow \, 173. 
 
 Moore v. Gill. 8it8, 8<«i. 
 
 Moore v. Hobson, 322. 
 
 Motn-o V. .lackson, .138. 
 
 McKtre V. Merritt, .S95. 
 
 Mof>re V. Morris, 329. 
 
 M<K)re V. M(K)re, .''»20, !KI7. 
 
 Moore v. Mulligan, 3.37, «27. 
 
 Moore V. Riddell, 231. 
 
 Moore v Shinners, 24, 213. 
 
 Moore V. Hinkin, .342. 
 
 MfMire V. ,S. Counties Uaiik, .573. 
 
 M ifjrehouse k Leak, re, MTt. 
 
 Moorhouse v. Colville, 4.'')(>. 
 
 Moran v. Sliunerhani. 2f<7. 
 
 Morant, /v, 2i»l. 
 
 Mordaunt \. Bcuwell, 782. 
 
 Morell V. Morrison, 4H5. 
 
 Morgan, re, Owen v. Morgan, 403, 449, .'»((3. 
 
 Morgan v. Briscoe, 711. 
 
 Morgan v. Day. 361. 
 
 Moi ran v. Klford, 072, 707. 
 
 Morgan V. Holland, 472, 473. 
 
 Morgan v MetrojKjlitan Ry. Co., SfJl. 
 
 Morgan v. Morgan, 14,280, 313. 
 
 Morgan v. Worthington, 440. 
 
 Morin v. Calaxjk, 029. 
 
 Morin v. Wilkinson, 207. 
 
 Morison v. Morison, 173. 
 
 Morit/, V. St^phan, 304. 
 
 Morley, re. Tucker v. Morley, 703. 
 
 Morley v. Matthews, 170, 189, 230, 094. 
 
 Mornington v. Mornington, .WS, 507. 
 
 Morphy, /r, 13, 348, (>.'>2. 
 
 Morphy & Kerr, 930. 
 
 Morrell v. Ward, 233. 
 
 Morrice v. Smart, .W*. 
 
 Morri.s, re, e.r p., Streeter, 78. 
 
 Morris, /r, e.r p., Webster, 911. 
 
 Morris v. Houlton, 723. 
 
 Morris v. Burdett, 808. 
 
 Morris v. KJwards, .504, 509. 
 
 Morris v. Howell, (504. 
 
 Morris v. Llanolly Ry. Co., 201. 
 
 Morris v. Morris, 10. 
 
 Morris \-. Richards, 477. 
 
 Morris \-. Salherg, 723, 878. 
 
 Morris v. Smythe, 314. 
 
 Morrison, ex p., 472. 
 
 Morrison v. Robinson, '.Vi, 189,22(>, 328. 
 
 Morrison v. Taylor, 034, 723, 935. 
 
 Morriston Patent Fuel ( 'o., re,, 42. 
 
 Morrow v. Clieyne, 42it. 
 
 Morrow v. Connor, .S4. 
 
 Morse, re, 25, 794, 795. 7!H;. 
 
 Mortimer v. Prescott, 721. 
 
 Mortimer v. Wilson, M09. 
 
 Mortlock V. BuUer, 200, 
 
 Mortlock V. Mortlock, 43. 
 
 Mortimore v. Cragg, 72.3. 
 
 Morton V. Hamilton I'rov. L. C, !t2.">. 
 
 Morton V. Miller, 478. 
 
 Morton V. Patmer, 43. 
 
 Morton V. C^uick, 43, .58(». 
 
 Moseley, re, 409. 
 i Mosely V. Rendell, ;483. 
 ; Mosely V. Victoria Rubln-r fJo., 4.32, .5<I7. 
 ' 508. 
 
 Mosley \. Ward, 159. 
 , Moses V. Moses, 902. 
 
 Moses V. Himpson, 80, 
 i Moss, re, 408, 471, 934. 
 ' Moss, /•(', Levy v. Levy, 39.5. 
 
 Moss V. Dayley, (i59. 
 
 MoK.s V. Millings, 432. 
 
 Mossop V. Mason, 17. 
 
 Mostyn V. West Mostyn Co., 3it. 40, 41. 
 
 .5or;. 
 
 Motion V. King, 505. 
 
 Moulton V. Haldiniand, re, 8()1. 
 
 Mouns(!y v. Bumh.im, 4.52. 
 
 Mounsey v. Karl of Lonsdale, 448. 
 
 Mountain \ . Porter, 189, 190, 2.3<i. 091. 
 
 Mountford, ex p., 21.5. 
 
 Mousley v. Carr, 159. 
 
 Moxley v. Can. Atlantic 484. 59!>, 5](t. 
 
 Moynan v. Moynan, .39. 
 
 Muchall v. Hanks, 322. 
 
 Mudge v. Adams, 41, 413. 
 
 Muir v. Munro, 222. 
 
 Muirhead v. Direct U. ,S. Cable Co.. I);U. 
 
 MullioUand, re, 794. 
 
 MulhoUand v. Hamilton, 180. 
 
 \ 
 
TABLK OF CASH8 OITKD. 
 
 ]ix 
 
 Miilhdlliinrl V. Merriiiin, 3;i<». 
 
 ^f'llk.^^n V. I).HTks, 3S1, 4;V.t, .VJ1. 
 
 .Miilkins V. Clarke, 192, 1!M'., l!t!», 202. 
 
 Miillarkf.v v. O'Dcmohiie, 4<>7. 
 
 Viilliii V. Hdiijor, 277. 
 
 Miilliii V. I'lwwM?, (>7i>. 
 
 Mullins V. Flowell, .W, 525, (».V>. 
 
 Miilliiws V. lianniHter, 2iM. 
 
 Miilviiiicy V. Hopkins, 8.')7. 
 
 Mimifiird v. Hitchcock, V.U. 
 
 Muiiily V. Hurl Howe, 784. 
 
 Muiiii'i|ml ( 'oiiiicil of Out. v. ('iiiiilM3rlaii(l, 
 
 58j"). 
 Mil III! V. McCIonuoIl, S73. 
 Munns V. Loii^dtMi, (»!t2. 
 Munro V. Munro. 23 
 
 MiinscM V. H)i\i.s.s, :w7. .'«i2, ;m. 
 
 Munsie, r>; 17(>, 22(i, 7<i<t. 7»i«. 
 
 Munsif V. LiiHlsivy, 16, l(i!>, 170, 171. 
 
 .Minister V. Kailton, 312. 
 
 Miintu V. Sturg*!, 80H. 
 
 Murcar v. Uolton, 770. 
 
 Murdoch, r'\ ()5, 525. 
 
 .MwrciiKih V. O'Sullivaii, .S.S.'>, 780. 
 
 Miirfitt V. Smith, (HiO. 
 
 Murjfatroyd v. Caldwell, .353. 
 
 Miirney \. Oourtney, .524. 
 
 Miirpliy V. lioultoii, 5.5.5. 
 
 Murphy v. Laiiipliier, 15, 7fi.5. 
 
 Muriiliy V. Murphy, 14, .30. 
 
 Murphy v. Nolan, (120. 
 
 .Murpiiy y. Nortli.ni IJ. W. Co., (iSti. 
 
 Murray /r, 178. 204 {ii>/<ln), 761, 705, 803 
 
 {ad(ia). 
 Murray \. (Janiwlii Central Ry. Co., 506. 
 Murray v. (iiUett, 128, 321. 
 M\irray v. Lord Stair, 610. 
 Murray v. I "aimer. 168. 
 Murray v. Simpson, 744. 
 Murray v. Stephenson, 3, 280. 
 Murray v. Walter, .505. 
 Murray \ . Warner, .530. 
 Murray \ . Kerr, re, 205. 
 Musjjrave v. Stevens, .381. 
 Mutchmore v. Davis, 18. 
 Mutrie v. Binney, 413. 
 Muttlebury v. Stephens, 220. 
 Mutual Society, re, 408. 
 Mutual Life Aas. Co. v. Langloy, 235, 256. 
 Myers v. Defries, 805, 808. 
 
 Myle« V. Burton, .'m. 
 
 Maoara v. (iwynn, 240, 6.5;{. 
 
 Macauley v. IJoyle, 12. 
 
 Macauley v. Uumlmll, 746. 
 
 Maclieth v. Smart, 4(Mi. 
 
 Mivcdonald, Macdcmald v. Marsh, ><•, 932. 
 
 Macdonald, rf, exp. (ilass, 032. 
 
 Maedonald v. Antelme, 540, 601i. 
 
 Miuidonald v. Abbott, 675. 
 
 .Macdonald v. Ilude, 413. 
 
 Macdonald \ . ISullivant, 227. , 
 
 .Maedonald \ . Caringtt>n, ;J85, 407. 
 
 .Macdonald v. Cronibie, 606. 
 
 Macdonald v. Macdonald, 23, 16;{, 220. 722. 
 
 820. 
 Macdonald v. McArthur, .501. 
 .Macdonald v. McCall. 780. 
 .Macdonald v. Norwich Union F. Ins. Co. 
 
 487, 507, 510. 
 Macdonald v. I'iper, .528, 028, 0.3.3. 
 Macdonald v. Richardson, KtO. 
 Macdonald v. Tactiuah Cold Mines f!o., 
 
 743, 745. 
 Macdonald v. Worthington, (56.5. 
 Macdonell v. Building & Loan Ass., 025, 
 
 02(i. 
 .Macdonnell v. Knigiit, 71. 
 Macdonnell v. McCillies, 778 (<«/</(».). 
 Macdonneil v. McKay, 499. 
 Macdougall v. .Sleight, .504. 
 Macfarlan \ . Rolt, .50<), .500. 
 Macfarlane v. Leclaire, 76. 
 Macfarlin v. Dc^rbeshire, 87. 
 Mackelcan v. Beckett, 277. 
 Mackenzie v. Carter, .5,58. 
 Mackenzie v. .lohnston, 13. 
 Mackereth v. (}lasgow& S.W. Uy.Co., 298. 
 Mttclennan v. (iray, 48, 187 (adda), 69.5. 
 Macleod v. Buchanan, 256. 
 Macleod v. .lones, 228, 239. 
 MacNee v. Ontario Bank, 128. 
 Macnicholl v. Parnell, 60, 747. 
 Macpherson v. Macpherson, 23, 82!(, 844. 
 Macpherson v. Tisdale, 745. 
 McAllister \. Bishop of Rochester, 3<)8, 
 
 484, 497, 199. 
 Mc Alpine \. Voung, 193, 195, 198. 
 McAndrew n . Barker, 77, 81. 
 McAiidrew v. Laflamme, 7t>3, 7<»8. 
 
 Jit ■ i ^1= 
 
 WF^iTw. r'-»,i.t> 
 
! 
 
 Ix 
 
 TABLE OF CASES CITED. 
 
 McArthur v. l)u(l«eiin, IHl, \Ki. 
 
 McArthur v. HcmmI, liV*. 
 
 McArthur v. I'ritti.s 1W». 
 
 McArthur v. The Township of Southwj)l(l, 
 
 (183. 
 McBoan v. McHciin, 182, 
 McBeth V. Hiiiart, (»"•>. 
 McCabe v. Bivnk of Ireland, 941. 
 McCa'.l V. Canada FanncrH" Mort Ins. Co., 
 
 tiO. 
 McCall V. Caniula FarnierK' Mutual Ihh. 
 
 Co., 21ti. 
 McCall V. Faithomc, 20(). 
 McCallum v. McCalhnn, 283, 008, 6(»7, 
 
 1079, 1084. 
 McCallum v. Prov. Ins. Co., 479. 
 McCann v. Preneveau, 534. 
 McCanlle v. Moore, 772. 
 McCargar v. McKinnon, 97, 173, 185, 188, 
 
 191. 
 McCarter v. MoCarter, 160. 
 McCarthy v. Arbuckle, 170, 329, 830. 
 McCarthy v. Ciwper, 20, 91.5, 916. 
 McCarthy v. (ioold, 718. 
 McCaughey & Walsh, re, 249. 
 McCaw V. Ponton, 188, 091. 
 McClellan, re, McClellan McClellan, 769, 
 
 899. 
 McClellan v. .Jacob, 387. 
 McClenaghan v. CJrey, 356, 420. 
 McClenigan v. McLeod, 574. 
 McClive re, 89. 
 McClive & (iilleland, re, 033. 
 McClung V. McCracken, 17. 
 McColl, re, McCoU v. McColl, 908. 
 McColl V. Waddell, 686. 
 McCollum V. Davis, .534. 
 McCollum V. Kerr, 878. 
 McConnell, re, 1.53, ;$;», 689, 909. 
 McConnell v. McConnell, 150. 
 McConnell v. Wilkins, 640. 
 McConneU v. Williams, 950. 
 McCormick v. McCormiok, 156, 224, 391. 
 McConnick v. Park, 745. 
 MeCorquodale v. Bell, 506, 507. 
 McCrae v. White, 78, 80, 81. 
 McCraney v. McLeod, 742. 746, 749. 
 McCready v. Heneasy, 278, 465, (adda), 940, 
 955. 
 
 McCulloch V. McCuUoch, 272, 315, :<82, .119. 
 
 583. 
 McCulloch V. HykfH, 722. 
 McUermid v. McDermid. 2(Mi, 486, 4HK. 
 MoDermott v. Keeling, 314. 
 McDermott v. McDermott, 202, 62i», 70.5. 
 McDiannid v. XlcDiannid, 18. 
 McDonagh v. Prov. Ins. Co., 585. 
 McDonald, «, 781,782,794. 
 McDonald v. Abbott, 675. 
 McDonald v. }3aird, .527 (addu). 
 McDonald v. Boice, 459, 851. 
 McDonald, ri, Cameron v. McDonald, 7*K». 
 McDonald v. Cameron, 728, 72t>. 
 McDonald v. Davidson, 175. 
 McDonald v. Elliott, 164, 229, 722. 
 McDonald v. Field, 43. • 
 McDonald v. (iarrett, 207. 
 McDonald v. (iordon, 104, 211. 
 McDonald v. Hime, 12, 240. 
 McDonald v. McArthur, 501. 
 McDonald v. McDonald, 34(5, 838, 845. 
 McDonald v. McKinnon. 16, 178, 761. 
 McDonald v. MoMillen, 290, .597. 
 McDonald v. Murray. 661, 672. 
 McDonald v. Rtnlger, 153, 187, 224. 
 McDonald v. Snitsinger, 213. 
 McDonald v. Worthington, 6(^5, 672, 673. 
 
 641. 
 McDonald v. Wright, 188, 234, 696 
 McDonell v. Building & Loan Ass., y2">, 
 
 926. 
 McDonell v. McKay, 672, 693. 
 McDonell v, Prov. Ins. Co., 584. 
 McDonell v. West, 228. 
 McDonough v. .* lison, 589. 
 McDougald v. Thompson, 578 & .590 (uddo). 
 McDougall, re, 250. 
 McDougall V. Campbell, 322, 386. 
 McDougall V. Hall, 46. 
 McDougall V. Gardiner, 360. 
 McDougall V. Gilchrist, 850. 
 McDougall V. Lindsay Paper Mills Co. 176, 
 
 224, 226, 6.52. 
 McDougall V. McDougall, 721, 779 
 McDowall V. Hollister, 745. 
 McDowall V. Shippen, 203. 
 McDowell V. McDowell, 718. 
 McElheran v. London Masonic, 49, 87(i. 
 
 881. 
 
TABLE OF CA8ES CITED. 
 
 Ui 
 
 McKvoy \. CIunc, :«31, .'Ml. 
 MiKwjin V. Croinbif, 7*S!'. 
 MtKvvcn V. Uonlton, .Vil, tyA't. 
 McImvcii v. McL»mx1, 72;">. 
 McKiiiIihhJ v. McKiirliuiil, 4,M, 7!>1. 
 McKiiiliiiif V. Miirpliy, XVX 
 Mi'Kif V. Iliintfr, N77. 
 .MtlJiiniu.ii V. (.'liirkf. 7'>, 1«H, (>!»7: 
 
 !»•_•;?, 107!». 
 MuCJuiTV V. Wliito, (il. 
 Mdiiiivoy V. Strivthroy, (i71, *>7H, 71!'. 
 MHJaw V. McDiai'inid, J'.HJ, ■4S7. 
 MdJfc V. Kiiiic, (i;W. 
 Mctiill V. Oi.iirlicc, (i4r>, 7(M», 7f>!t. 
 MdJilliouddy v. (Irittiii. KIT). 
 Mc({illi(^u(l(ly V. McCartliy, i'M, 
 .Mi-(Jillivriiy v. iVicC' .key, 4!)1. 4.')2. 
 .M(!(i()\van V. Middleton, 'u'X 
 Mi(;rfKorv. (Jaulin, 231. 
 MHirt-Kor v. McCiregor, Ui, 1(>!», 170, 
 
 ;t37. 
 M((!r.g()r v. McDonald, 7!». 4!ll, 503, 
 
 r.O!l, r)13. 
 MdJuin V. FrottH, 220. 
 MoiJuin V, Sneatli, 534. 
 Mc'Cuftin V. CliiH', S31, «32. 
 MoCunighal v. (J. T. R., »7. 
 .VluUcmy V. Leww, 44, 3(iO, 7t)4. 
 Millliai)?y V. McCiinniH, 381, 382, 440, 
 
 448. 4.-.2. 
 Mcllroy V 1 1, ,11. 
 Ml M n .y I lawke, 224. .')<»(), (;!t2. 
 <;. W. Rv 50-2. 
 Il \. Ontario ' ik, 232. 
 
 HiDsh V. Rogers, 2n>, 211, 212. 
 
 iiiyre \ Utorney-CJenoral, 18. 
 Molhtyre Canada Co., 182, (M)7. 
 Mi'Iiityre \. Kingsley, 37t». 
 Milntyre v. Tlidinp.son, 220. 
 McKay v. Atherton, 73!t. 
 McKay V. Baker, !U4. 
 McKay V. Cnnunins, 4.'i4, 443. 
 .McKay V. KeeiH-r, 184, 212. 
 McKay v. Macfarlane, 287. 
 McKay v. Magee, i)2,5. 
 McKay v. McFarlane, 3!M). 
 McKay v. McKay, 178, 701. 
 McKay v. Mitchell, 744. 
 McKeen v. S. (lower, 108.5, 1088. 
 McKtinzie v. Dwight, 21).5. 
 
 McKen/.ie V. Harris, 45',t. 
 
 McKenssie v. Kittridge, 074. 
 
 McKenzie v. McUonnell, .502. 
 
 McKen/.ie \. Sinton, 043. 
 
 McKenzie v. Wigginn, ,183. 
 
 McKenzie v. Yielding, 12, 804. 
 
 MoKerchie v. Montgomery, .541. 
 020, McKinley v. Beadle, 702. 
 
 McKindsey v. Annwtrong, 040, 074, (i83, 
 74r>. 
 
 !M)1. ■ MoKinnon v. Anderson. 172, 307. 
 I McKirtry v. Fiirhy. 080. 
 
 McLiwihlin v. Blacklmrn, 7115. 
 
 MuLnrdy v. Hlateuui, 028 (addii). 
 
 McLari'ii v. Caldwell, 073. 
 
 McLaren v. Can. Central, JK), (i40, 724, 8«5. 
 
 McLaren v. Fraser, 170, 171, 227, 322, 323. 
 I McLarer v. Marks, 371. 
 ; McLaren v. Miller, 300. 
 171, McLaren v. Rivett, 332. 
 
 McLaren v. Stephen, 074, 077. 
 505, McLaren v. Sud worth, 744. 
 
 McLanglin v. Carroll, 488. 
 
 McLaurin v. McDonald, 12. 
 
 McLay v. Sharji, 407, 414. 
 
 McLean v. Anthony, 880. 
 
 McLean v. Bruce, 488, 480. 
 
 McLean v. Burton, 10. 
 447, i McLean v. CroHs, 130, 804. 
 
 McLean v. Evans, 021, 1007. 
 
 McLean v. (Jrant, 1.3, 25,201, 212,287, IMKJ. 
 
 McLean v. (J. W. Ry. Co., 484. 
 
 McLean v. Hamilton Street Ry. <.'<»., 414. 
 
 McLean v. McDowell, .534. 
 
 McLean v. Pinkerton, 477. 
 
 McLean v. Shields, 87. 
 
 McLean v. Smitli, Ii(i4. 
 
 McLean v. Thompson, 580, .58!). 
 
 McLean v. Stuart, 022. 
 
 McLennan v. Cheguin, 204, 2O0. 
 
 McLennan v. (Jrant, 15. 
 
 McLennan, e.r parte, \ Helps, 177, 550. 
 
 McLennan v. Heward, 1.58, 10(», l(jl, 102, 
 174. 
 
 McLennan v. McLean, 240. 
 
 McLeod V. Avey, 107. 
 
 McLeod V. Emigh, 339 (udda), 87.5. 
 
 McLeod V. Millar, 925. 
 
 McLeod V. Phelps, 217. 
 
 McLeod V. Sexsmith, 31(i, 042. 
 
 
 < »'i 
 
Ixii 
 
 TABLE OF CASES CITED. 
 
 McMahon v. Lavery, 86, 87. 
 
 McManuB v. Little, 208. 
 
 McMartin v. Diirtnell, 5.58, 
 
 McMaster v. Beattie, (>25. 
 
 McMaster v. Hector. 172, 228, 237. 
 
 McMaster v. Keinpsliall, 2.5. 
 
 McMaster v. Mason, 487, 538. 
 
 McMaster \. Meakin, 877. 
 
 McMaster v. Milne, 87H. 
 
 McMillan, rr, 7(M), <»21. 
 
 McMillan, n. Patterson v. McMillan, 778. 
 
 McMillan anrl The (Juclph .Innc. Ky. Co., 
 
 re, 2«7. 
 McMillan v. Colwell, 432. 
 McMillan v. McMillan, lUl, 174, 107!>. 
 McMillan v. Wansboroiigh, .533, 78K. 
 McMorris, re, 213, 214. 
 McMullen v. Polly, 3U1. 
 McMurray v. (xrand Trunk Ry. ( 'o., 485, 
 
 401, 544, 057, (572. 
 McMurrich v. Hogan, 2!K). 
 McNab V. Mclnnes, 15, 585. 
 McNab V. Mclnnis, 14!). 
 McNab V. Peer, 794. 
 McNabb v. Opjienheinier, 521 , 723, 
 McNair v. Simpson, 25. 
 McNally v. McDonald, 538. 
 McNamara v. Jones, 173. 
 McNaughton v. Webster, 713. 
 McNeil V. Haines, tK)2. 
 McNeil V. McGregor, 4'.to, (I'd, 
 McPhadden v. Jenkins, 13. 
 McPhail. ex parte, 57, MU. 
 McPhatter v. Blue, 472. 
 McPherson v. McCabe, 33!t, .JK*. 
 McPherson v. McPlierson, !)3, 7>il>. 
 McPherson v. Wilson, 87 (ndda). 
 Mc<iuet>n, re, 15. 
 
 Mc'iiieen, re, Mct^ueen v. McMillan, 785. 
 Mdiuesn v. McQueen, 188. 
 Mct^ueen v. Turner, .'538. 
 McRae, re, Forster v. Davis, 351, 478, 7«2, 
 
 7«5. 
 McRae v. White, 8(), 81, 075. 
 Mc Roberts V. Hamilton, 723, !)37, !)38. 
 McSheffery v. Latiiigan, 570. 
 MctStephens v. Carnegie, .304. 
 McT.iggart .. Merrill, 18!t. 
 McTaggart v. Ti.-otlie, 281, 
 McTavish v. Simpson, 47'.>. 
 
 McTieman v. Fraser, 71. 
 McVean v, Titfen, 153. 
 McWhirter v, Learmuuth, 879. 
 
 Nadin v. Basset,. 48.5, .538, 548, 551. 
 
 Nagle-Gilhnan v. Christopher, .536. 
 
 Nalder v. Hawkins, 333. 
 
 Napanee Board of Educatio*' v. Napariee, 
 8«4, 805. 
 
 Xapanee& Tarn worth Ry. Co. v. .VIcl.>o'.ieIl. 
 57G, .578. 
 
 Napier v. Hughes, 073. 
 
 Naples, The, 042, 04.3. 
 
 Nash V. Dickinson, 723. 
 
 Nash V. Glover, 095, 922. 
 
 Nash ^. McKay, 348. 
 
 Nash V. Pearse, 743, 744. 
 
 Nash V. Wooderson, 194, 200. 
 
 Nathan, Newman & Co., re, 301. 
 
 Nathan v. Batchelor, 422. 
 
 Niithan v. Giles, 740, 751. 
 
 Nation, re, 097. 
 
 National Bank of Australasia v. I'nit*'*! 
 Hand-in-Hand Band of Ho|«', 2;W, 2Ji.3, 
 322. 
 
 National Funds Ass. Co.. re, 107. 
 
 National Ins. Co. v. Egles(jn, 073, 083. 
 
 National Provincial Bank of Kngland ». 
 Bradley Bridge, etc., Co., 371. 
 
 National Provincial Bank v. Evans, (i20. 
 I National Provincial Bank v. tiames. 172. 
 I National Provincial Bank of England ▼. 
 I Harle, 49, IViO. 
 
 National Provincial Ba7ik of England t. 
 Tlionuvs, 55, 210, 2M. 
 
 National Provincial Plate Glass Ins. Co. t. 
 Prudential Asw. ('o. 02. 
 
 Naylor v. Farrer, 4<H», 411. 
 
 Neald v. Corkindale, 128, 303, 370. 
 
 Neale v. Clarke, 407. 
 
 Neale v. McKenzie, 443. 
 
 Neale v. Winter, 12. 
 
 Neate V. Pink, 02. 
 
 Neath Harbour, etc. v. Smelting Work*. 
 092. 
 
 Needhani v. Needham, 23, 8.38, 84.5. 
 
 Needham v. [{ivcrs I'rotection Ck., 42. 
 
 Neera, The, 097. 
 j NeesoTU V. Clarkson, 108, 109. 
 i Neil V. Neil, 220. 
 
TABLE OF CASKS CIT£D. 
 
 Ixiii 
 
 Neil V. Park, 440. 
 
 Nuil V. Travfllere' Ins. Co., IH»3. 
 
 Neil V. Winter, 894. 
 
 Neil V. Vandyke, 015, 648. 
 
 Nelson, re, 698. 931, 1098. 
 
 Nelson, ex parte, Hoare, 718, 720. 
 
 Nelson v. Booth, 163. 
 
 Neliion V. Cochrane, 223. 
 
 Nelson V. Nelson, 717, 719, 720. 
 
 Nelson V. Paatorino, 296, 368. 
 
 Nelson V. Thorner, 631. 
 
 Nelson V. Roy, 460. 
 
 Nevills V. Nevilla, 170. 
 
 Newall V. Nat. Prov. iJank of E., 4<»8. 
 
 Newbattle, The, 946. 
 
 New British Investment Co. v. Peed, ."HM, 
 
 .504. 
 Newbiggin-by-the-Sea Gas Company \-. 
 
 Armstrong, 107, 287. 
 Newbould v. Smelt, 230. 
 Newby v. Von Oppen, 2it7. 
 Newby V. Sharjie, 447. 
 New Callftti, re, 80, 81, m\, mi. 
 Newcombe v. McLuhan, i"»76. 
 Newcomen v. Coulson, .573. 
 Newell V. Nat. Prov. TJank of E., 408. 
 Newington v. Levy, 4.57. 
 Newman,' re, 378, .524, 74.5. 
 Newman v. Rook, 7.51. 
 Newman v. Selfe, 377, .•<88. 
 Newport, etc., Co. v. Paynter, 431,433. 
 Newson V. Pender, .56 (ndda). 
 Newton, re, .554. 
 Newton V. Dtiran, 12. 
 Newton V. Metro|K}litan Ky. Co.. 350. 
 Newton V. McSheehan, 482. 
 Newton V. Newton, 55, 281. 
 Newton V. Sherry, 348. 
 Newton V. Thompson, 46(i. 
 New Westminster Brewery Co. v. Hiiunaii. 
 
 .557. ;«)!, rvM\. 
 New York Piano Co. v. Stevenson, 15*54, Ti*?! J. 
 Niagara (}ra|>e Co. v. Nelles, .580 (««/'/»»). 
 I.ickels v. Hancock, 14. 
 Nickall v. Crawford, 727. 
 Nichol v. Allenby, 22;^, 778, 78<>. 
 Nichol v. Ewin, 744. 
 Nicholas V. Bracachis, .58. 
 Niohclas V. Merit, (524. 
 Nichoil V. Allen, 862. 
 
 Nicholl v. Elliott, 486, .505. 
 
 NichoUs v. McDonald, 693. 
 
 Nicholls V. NichoUs, 459. 
 
 Nicholls V. Wheeler, .500, 509. 
 
 Nichols V. Evens, 568. 
 
 Nicholson v. Jackson, 414. 
 
 Nicholson v. Linton, 583, .584. 
 
 Niokle V. Walkerton, re, ;}tiO. 
 
 Nicol V. Ervin, 744. 
 
 Noad V, Murrow, 439. 
 
 Noad V. Noad, 400, 583, 584. 
 
 Nobel's Explosive Co. v. Jones, 35.5. 351,. 
 
 420, 446, 447, 4.53. 
 Noble V. Brett, 348. 
 Noble v. Edwardes, 51, 202. 
 Noel V. Noel, 336. 
 Nokes V. Giblx<n, 21. 
 Nolan, re, 144. 
 Nolan V. Coleman, 920. 
 Nolan V. Nolan, 518. 
 Nordheimer v. McKillop, .549. 
 Nordon v. Defries, .506. 
 Norman, re, 931. 
 Norman v. H ipe, 857. 
 Normantown, re, 82. 
 Norris v. Beazley, 358, 371, 418, 481. 
 Norris v. Boll, 767- 
 Norri.s v. Irish Land Co., 861. 
 Norris v. Meadows, 236, 386, 393. 
 N .rth V. Fisher, 37. 
 Ni)rth Central Waggon Co. v. N. Wales 
 
 Waggon Co., 633. 
 Nfrth London Ry. Co. v. Great Northern 
 
 Ry. Co.. 55, 216, 217. 218. 
 
 North Simcoe Ry. Co. & Toronto, re, 861. 
 North York Case, re, 130. 
 Nortii Wlieal Kxmonth Mining Co., /r, 
 544. 
 
 Nortii ot Scotland Mortgage Co. v. Beanl, 
 386, 6U. 
 
 Nortii of Scotland Mortgage Co. t. Ger- 
 man, 227. 
 I Northaniiiton, etc. v. Easton, 372. 
 I Northumberland Ave. Hotel, re, 8. 
 j Norton v. Cover, .52, 270. 
 Norton V. Merrimaii, 412. 
 Nortcm V. McCab", 685. 
 Norval V. Canada Southern R. W. Co., 
 672, 675, mA. 
 
 
 ■IP 
 
Ixiv 
 
 TABLE OF CASES CITED. 
 
 Norwich v. Attorney (ieneral, 21. 
 Norwich v. Norfolk Building Society, 468. 
 Nothard v. Proctor, 61. 
 Nott V. Sands, 707, 735. 
 Notta(?e V. Aitkun, 302. 
 Nouvion V. Freeman, 87 {adda). 
 Noyes V. Crawley, 164, 435. 
 Noyes V. Pollock, 226. 
 Nudel V. Elliott, 7(jO. 
 Nugent V. Nugent, 47. 
 Nurse v. Durnford, 107, 287. 
 Nuttes & Co. V. Massagei-ies Maritinies, 
 2»). 
 
 Oakden v. Pike. 51. 
 
 Oakey v. Dal ton, 563. 
 
 Oakley v. Toronto G. & K, 4M. 
 
 Gates V. Foresters, 447, 44S. 
 
 O'Brien v. Bull, 88.5, itll. 
 
 O'Brien v. Clement, 443. 
 
 O'Brien v. Maitland, 376. 
 
 O'Brien v. Wells, 586, 5S9, 
 
 O'Connell v. Charles, 327. 
 
 O'Connell v. Duchenault, Ar,H. 
 
 O'Connell v. O'Connell, 401. 
 
 O'Connor v. Beatty, 207. 
 
 O'Connor v. O'Hara, 442. 
 
 O'Connor v Wmnlward, 1!>5, 1»8. 
 
 Odell V. Bennett, 414. 
 
 Odell V. City of Ottawa, 484. 
 
 Odell V. Doty, 387. 
 
 O'Doiinell V. Duchesnault, 41!(. 
 
 O'Donnell v. O'Donnell, 406. 
 
 0'DonolK)e, re, 61)7, !t23, 933. 
 
 O'D.mohoe v. Hembroff, 185. (5.56. 
 
 O'Dniohoe v. Robinson, 672. 
 
 O Donolioe v. Wiley, 302. 
 
 O Donohiie v, Maguire, 443. 
 
 OiDonohue v. Whitly, 76. 
 
 O'Doiigherty v. Ont. Bank, 788. 
 
 Otfan V. OflFan, 851. 
 
 Otford V. OfTord, 47. 
 
 Ogden V. Battams, 187. 
 
 Ogden V. Craig, 877. 
 
 <')gilvy's Arbitration, r<, ."Vlli. 
 
 0"(}rady v. McCaflFrey, 170, 171. 
 
 O'Keefe v. 'i'aylor, 202, 207. 
 
 Old Mill Co. V. Dukinfield Local Board, 83. 
 
 Old V. Old. 519. 
 
 Oliphant v. Mc(iinn, 622. 
 
 Olive, re, Olive v. Westerman, 162, UHi,TJX 
 
 Oliver v. Cotirt, 170. 
 
 Oliver v. Dickie, .539. 
 
 Oliver v. Fryer, 606. 
 
 Oliver v. Lowther, 747. 
 
 Oliver v. Woodroffe, 623. 
 
 Oliyer & Scott, re, 482 {mld<i). 
 
 Olley V. Fisher, 440. 
 
 Olmstead v. Errington, re, 460. 
 
 Olinstead v. Rutherford, 340. 
 
 O'Lone v. O'Lone, 13. 
 
 O'Malley v. Killmallock, 893. 
 
 O'Meara v. St<jne, 431. 
 
 O'Neil V. Clason, 29«>. 
 
 O'Neill V. Travellers' Ins. Co.. 682. 
 
 Ontario Bank 
 
 Ontario Bank 
 
 Ontario Bank 
 
 Ontario Bank 
 
 Ontario Bank 
 
 Ontario Bank 
 
 V. 
 
 V. 
 
 Burk, 284, 60(i (tnida), tflO. 
 
 Fisher, 466. 
 
 Kerby, 729. 
 
 Mitchell, TM. 
 
 Revalls, 880. 
 
 Sirr, 202, 206, 208. 
 Ontario Salt Co. v. Merchants Salt Co, 17. 
 Oppert v. Beaumont, 146. 
 Orde, re, 554. 
 O'Reilly v. Moore, 520. 
 Orford v. Bayley, 323. 
 Orkney v. Shanahan, 292. 
 Orient Steam Nav. Co. v. Ocean Murine 
 
 Ins. Co., 431, 1085, 1088. 
 Oriental Bank v, Fitzgerald, 031. 
 Original HartleiKK)l Colleries Co. v. (iibb, 
 
 409. 
 Original HartleiKM>l Colleries Co. v. Moon, 
 
 m>, .507. 
 O'Riordan v. Kelly, 893. 
 Onnond v. Brierly, 829. 
 Ormond v. lileasdale, 517. 
 Ormerod v. Todmorden, 75, !W, 100. 
 Ormston, re, 922. 
 Orpen v. Kerr, 490, .539. 
 Orr V. Diaper, 482. 
 
 Orrell Colliery v. Firebrick Co., re, ,576. 
 Orr Ewing v. .Tohnstcn, .58. 
 Ortner y. Fitzgibbon, 627. 
 Osborne v. Fanners' & M. B. Society, 20.i, 
 
 206. 
 Osborne v. Kerr, 729. 
 Osborne v. Osborne, 213. 
 Oshawa Cabinet Co. v. Note, 415, .'■■'S3, 5(>5. 
 
TABLE OF OASES CITED. 
 
 Ixv 
 
 Osniaston v. AsH(X!iationt of Land Finan- 
 ces, 55(». 
 
 Ost,ri)iii & Sidney, re, 476 {u<lilii). 
 
 O'Sulliviin V. Murphy, 2«i». 
 
 O'Sullivan v. Lake, (tfil, (WO. 
 
 Ottiiway, ri; 542. 
 
 Ottrr V. Lr)rd Vaux, 2:15, SIIJ. 
 
 Ottii V. Lindford. 671. 
 
 Otway V. Otway, 51!», !)07. 
 
 Oultoii V. Radcliflf, .'WIS. 
 
 Outratii V. (lutrani, 537. 
 
 Outram v. Wickoff, ;i47, 7i>l, 7i>'.t. 
 
 Outraui V. WyckhoflF, 32il. 
 
 Overiugton v. Ward, 215, :U7, :>K 
 
 Owen V. Delamere, 762. 
 
 Owt'i) V. Homan, 216. 
 
 Owen V. Pritchard, 715. 
 
 Owen \. Wynn, 502, 503, 5(14. 
 
 Owen^^, re, Jones v. Owens, 1((5. Kid. 
 
 Owens V. Dickinson, 17!*. 
 
 Overseers of Walsall v. L. & N. W. Ky. 
 Co.,.U 
 
 Oxford V. Bailey, ;{S6. 
 
 I'acund v. McKwau, 6)>;i, 857. 
 
 Padgett V. Binns, 644. 
 
 Padstow, rr, Total Loss, etc.. A.ss., 81. 
 
 Pad wick v. Scott, 363, 468, 411. 
 
 Pad wick v. Stanley, 13. 
 
 Page V. .\iistin, 678. 
 
 Page V. Bennett, 22. 
 
 Paget V. Ede, 387. 
 
 Paine V. Chapman, 233, :W0. 
 
 Paisley v. Broiidy, 87. 
 
 Palermo, The, m;, 5().s. 
 
 Palliser v. Guriiey, 3;^>, 'Ml. 
 
 Palmer, fj-;)., 8(»4. 
 
 Palmer, re, t(7:i. 
 
 Palmer, .1. B., »v, 424. 
 
 Palmer, n; Skipper v. Skipper, 5!(3. 
 
 Palmer v. Flower, 531. 
 
 Palmer v. (Jihlm, 426. 
 
 Palmer v. (Jonld's Manufacturing Co., 2!I7, 
 
 .'^05. 
 Palmer v. Hendry, 3!(2. 
 Palmer v. .Johnston, 2IM(. 
 Palmer v. Miller, 640. 
 Palmer v. Mitchell, 160. 
 Palim r \ . Postle, !K).5. 
 I'almer v. Rogers, SH'Jl. 
 
 Palmer v. Walesby, 374. 
 
 Papayanni v. Couti>a8, 75, 6;i2. 
 
 Pape V. Lister, 501. 
 
 Paraire v. LoibI, 569. 
 
 Pardee v. LU>yd, 14. 
 
 Pare v. Clegg, 327. 
 
 Parent v. Lortie, 60, 747. 
 
 Parfitt V. Jepson, 19.5. 
 
 Paris Manufacturing Co. v. Walls, 878. 
 
 Paris Skating Rink Co., re, .53, 54, 870. 
 
 Park, re, 931. 
 
 Park, re. Cole v. Parke, 92{», 930. 
 
 Park V. Patton, 606. 
 
 Park (rate Iron Co. v. Coates, 81. 
 
 Park V. Taylor, 878. 
 
 Park, (■»; re, Cash v. Parker, ItO. 
 
 Parker v. Howe, 742, 743, 749. 
 
 Parker v. Meriden, 485. 
 
 Parker v. Parker, 178, 761. 
 
 Parker v. Thorold, 51. 
 
 Parker v. Vine (Trowers' Association. .TJ6. 
 
 Parker v. Watkins, 172. 
 
 Parker v. Watt, 213. 
 
 Parker v. Wells, 431, 503, 513. 
 
 Parkes v. St. George, 55 (adda). 
 
 Parkin v. Seddons, 215. 
 
 Parkinson v. Hanbury, 163, 166, 168. 
 
 Paniell v. Great Western Ry. Co., 598. 
 
 Pamell v. Kingston, 344. 
 
 Parnell v. Mort Liddell, 891. 
 
 Parpaite v. Dickinson, 282, 1183. 
 
 Parr v. Lough, 476, 591. 
 
 Parr v. Lovegrove, 209. 
 
 Parsill V. Kennedy, 768. 
 
 Parsons v. Bank of Montreal, 322. 
 
 Parsons v. Groome, 255, 25<). 
 
 Parsons v. Harris, 477, 478, (»19, 642. 
 
 Parsons v. Hayward, 1()2. 
 
 Parsons v. Standard Ins. Co., (578, 912. 
 
 Parsons v. Tinlir.g, 894, itOl. 
 
 i'artington, re, Partington v. Allen, KUJ. 
 
 Parton, re, Towr.viid v. Parton, 419, 428. 
 
 Partridge v. Fraser, 624. 
 
 Pascal V. Stone. (t29, (WO, ()32. 
 
 Paseoe v. Richards, 439, 642. 
 
 I'ascoe V. Swan, 169. 
 
 Patch V. Ward, 237, 392, .505. 
 
 Patch V. Wild, 163. 
 
 Paterson v. Holland, 152, 323. 
 
 Paterson v. Tcxld, 728, 729. 
 
 fjj 
 
 
! 
 
 Ixvi 
 
 TABLE OF CASE8 CITED. 
 
 Faterson v, O'lltiilly, 48. 
 
 Patey v. Flint, 614. 
 
 Paton, re, 624. 
 
 Patrick v. Milner, 51. 
 
 Patrick v. Shaver, 15. 
 
 Patrick v. Simpson, 47 (mlila). 
 
 Patterson, re, Cattoii v. Patternon, 771. 
 
 Patterson v. Fuller, 857. 
 
 Patterson v. (lilbtirt, (i94. 
 
 Pattetson v. O'Reilly, 744. 
 
 Patterson v. Robh, 202, 2(>;5, 207. 
 
 Patterson v. Scott, 154, 17.S, 185, 7<>5. 
 
 Patt<!rson v. VVooUt, 5S7. 
 
 Patlison, re, .fiuikson v. Mathews,77("'/'/'f 
 
 Pattison v. Wooler, 537. 
 
 Patton V. Hickson, (543. 
 
 Pattypiece v. Mayville, !(4. 
 
 PatuUo V. Church, !)31, 032. 
 
 Paul V. Cleaver, t)23. 
 
 Paul V. .fohnson, 103, 171, 227. 
 
 Paul, re, !):«. 
 
 Pavitt V. Metropolitan Traniway.s Co., 507 
 
 Pawson V. Hall. •V)5. 
 
 Pawson V. Merchants Hank, S4, 507, 510. 
 
 Pawson V. Wrightnian, O.V.t. 
 
 Paxton V. Bell, !t3!), <,»48. 
 
 Paxton V. Dryden, 220, 514. 
 
 I'ayne, re, Handle v. Payne, 340. !I41. 
 
 Payne v. Little. 333, 340. 
 
 Payne v. Newherry, 517 {(ulitu), (!3: 
 
 " (a Ida, 948 ((ulihi), 
 Payn ■ v. T'arktn', 325, 320. 
 Pea .! & Waller, re, 338, 33'.>, y2!>. 
 Pe.cock V. Harper, 341. 
 P iicock V. Peacock, 217. 
 Peacock v. Reg., !t.50. 
 I'eak v. Ledger, 350. 
 Peal V. (iott, 3.32. 
 Pearce v. Foster, .500. 
 Pearce v. Morris, 22!), 230, 240. 
 Pearce v. Spickett, 477. 
 Pearce v. Watts. 421. 
 Peannan v. Hurdett Coutts, 808. 
 Pearnian v. Hyland, 380, 304. 
 Pearson, re, Oxley v. Scarth, Wn. 
 Pearson v. Canipliell, 3(K), 322. 
 Pearson v. Kssery, 740. 
 Pearson v. Lane, 307, •{«>8. 
 Pearson v. Ripley, 8'.H!. 
 Pearson v. Wilcox, 5.54. 
 
 ' Pease v. Fletcher, 50, 21«. 
 ■ Peek & Ameliasbnrg, rt; 510. 
 
 Peck & (Jalt, rt, 802. 
 
 Peck V. Peck, 107, 518. 
 
 Peck V. Trinsinaran Iron Co., 01. 
 
 Peckett v. Short, 81, <j08. 
 
 Peck V. Derry, 11, 51. 
 
 Peel v. Wiiite, 310, 014. 
 
 Peers v. Allen, 0.53. 
 ' Peers v. Sneyd, 213. 
 
 Pegley v. Woods, 100. 
 
 Pegg V. Hobson, 303, 304. 
 
 Peillon V. Brooking, 914. 
 
 Pelhani V. Newcastle, 717, 710. 
 
 Pell V. N(jrthanipton & B. J. K. Nf. Co., 
 387. 
 
 Pellas V. Neptune, 400, 413. 
 
 Pelly V. Wathen, 400. 
 
 Pelten, re, 794, 790, 707. 
 
 l-'endelion v. Macrory, 15. 
 
 Pendffr V. Lushington, 300. 
 
 Pendry v. O'Neill. 042, 044. 
 
 Penley v. Beacon ,\ss. Co., 19. 
 
 Penn v. Lockwood, 177, 22.5, 2.32. 
 
 Penner v. Cannitf, 323. 
 
 Penniniuu v. Hill, 537. 
 
 Penny v. Francis, 703. 
 
 Penny v. Watts, 34(i. 
 
 Penrice v. Williams, 408, (;51, 050. 
 
 Pentland v. Heath, 0S7. 
 
 Pentoii v. (irand Tnuik K. W. V,n., fi8<i. 
 
 Peoples (Jardeii (Ai., re, 42. 
 
 Peoples Loan Co. v. liacon, 2(»2, 203, 201. 
 
 Pepper, re, 20O, 301. 
 
 PepjHir, re, Pep|)er v. PepiJer, 288, 7*W. 
 
 PepjKT V. PepiKT, )»48. 
 
 Peppitt, i-e, 320.341. 
 I Peppitt's Kstate, n, Chester v. Phillips, 
 ! 341. 
 
 Pei-cy, re. Stewart v. Peitjy, 200. 
 
 Percy k Kelly, Nickel, etc., Co., rf., WV), 
 040. 
 
 PcTkins V. ISeresford, 74, 4.57. 
 
 Perkins v. Dangerfield, .508, 040. 
 
 Perkins v. .Vlissisipjii & Co., .301, .302, ;W1- 
 
 Perkins v. Slater, h'MS, .537. 
 
 Perkins v. Vanderlip, 220. 
 
 Perks v. Mybred, 210. 
 
 Perks v. Mylrea, 337, 3.30, 027. 
 
 Perks V. .Stottart, 544. 
 
TABLE OF CASES CITED. 
 
 Ixvii 
 
 rerriain, re, Ptiiriam v. Perriani, 2<hi. 
 Perrin v. Bowes, 459. 
 Perrin v. Davis, 156, 224. 
 Perrin v. Perrin, 351, 7<5o, 770. 
 I'eruvian Guano Ci. v. B<X!kwoldt, 44. 
 Peshawur, The,- 44. 
 Peter V. Peter, 531, 5«i4. 
 I'et^rlKjro' V. Iieton, (194, iV.)h. 
 Pfterljoro' v. .Midland Kv. Co., 430, 443. 
 IVtorkin v. McFarlauc. 79, 4(iO, (iSfi. 
 I'cttis V. Stoness, 791, 792. 
 l'.,t.Ts V. Tilly, 94.5. 
 Peterson v. I'ettirson, 51 X. 
 Petit V. Anibro.s«', 2S9. 
 Peto V. Welland Ry. Co., 217, ?»1. 
 Pt'tre V. Petre, 47. 
 Petrie v. Uuelph, etc., t)97, 10«9. 
 Pettee, re, McKinley v. lieadle, 770. 
 Pettie V. Daniel, 4.59, 5U!. 521. 
 Pew V. Buffalo, etc., Ry., 443. 
 Pfeiffer v. Midland Ry. Co., (MiO. 
 Phelan, re, 7K2. 
 Phelps V. White, 4»i. 
 Pherrill v. Forljes, (>14. 
 Pheysey v. Pheysey, 78. 
 Philips V. Beall, .5«4. 
 Philips V. (Jill, re, 51t>. 
 Philiiw V. Holmer, .503. 
 Phihjw V. Philips, 319, 44 . 
 Philipson V. Emmanuel, 1.'89. 
 Philipps V. Philipps. 44 . 496, .504. 
 Philli|>s V. Austin, 74H. 
 Phillips V. Conger, 197. 
 Phillips V. Findlay. «:h. 
 Phillips V. Harris, .559, r>29. 
 Phillips V. Houifray, .'><»3. 
 Phillips V. .lones, 217, 218. 
 Phillips V. London & S. W. Ry. Co., (Mil. 
 Philliiw V. Phillips, 14. 
 Phillips V. Prentice, .554. 
 Sylvester, lfi7. 
 McLeod, 583. 
 Phipps V. Beanier, 88«}. 
 Phosphates Sewage Co. v. Hartniont, 542. 
 Phosphatti Sewage Co. v. Molleson, 44. 
 Piat V. Nicholson. .391. 
 Picard v. Hine, 3.38. 
 Pinasso V. Trustees of .Mary port Marljour, 
 
 1098. 
 Pickard v. (J. N. Ry. t'o.. (KM. 
 
 Phillips V. 
 Phipjien v. 
 
 ! Pickering, re, 502, .509. 
 
 ; Pickering v. Ilfracombe Ry. Co., 74<!. ' 
 
 Pickup V. Kincaid, 8t). 
 ' Pickup V. Thames Ins. Co., Wil. 
 j Pictou, The. 35. 
 I Pierce v. Brady, 328. 
 I Pierce v. Canavan, 23<», 38(>, 
 ! Pierce v. Palmer, 401, (191. 
 
 Piercy v. Vounp, .587. 
 
 E'iers v. Piers. 194. 
 
 Pigeon V. Bruce, 289. 
 
 Piggott V. .\nglo-.-\nierican Telegraph (!o., 
 S73. 
 
 Pigot v. Stewart, 325. 
 
 Pike V. Dickinson, 543. 
 
 Pike v. Fit/.gil>1)on, 338, ((27. 
 
 Pike V. Keene, 343. (!.%. 
 
 Pike V. Robinson, .558. 
 
 Pilcher, re, Pilcher v. Hinds, .381, 4.59. 
 
 Pilcher V. Hinds, 482. 
 
 Pilgrim v. Southampton and DorchesUT 
 C. W. Co., 920. 
 
 Pilkinton v. Baker, 872. 
 
 Piller V. R.ilH-rts, .3«»,..3«i8, »i9, 370, 372, 
 .373. 
 
 Pilley v. Rohins.:n, 321,a5.5. 
 
 Pirn v. Harris, 1(i2. 
 
 Pinder v. Smith, 30.5. 
 
 Pinnock v. Bailey, 25«i. 
 
 Pipe v. Shafer, 233,3t>1. 
 
 Pi|»er V. Pijier, 711, 715. 
 
 Planet Building Society v. Part, 4.5.3. 
 
 Plant V. Stone, 472. 
 
 Plating Co. v. Faiinihar.son, 711. 
 
 Piatt v. .Vshhridge, 392. 
 
 Piatt v. Attrill. 108(i. 
 
 Piatt v. Blizzard, 213. 
 
 Piatt V. (J. T. Ry. Co., 82, m\, :a-<.\, «82, 
 (>88, 097, ««t8. 923, 935. 
 
 Piatt v. Mendel, 235. 
 
 Pleasants v. Fast Dereham, etc., .'WM. 460. 
 
 PliiMpton V. Spiller, .5(i. 
 
 Plum v. Nornuuiton Iron, »-te., Co., 400, 
 583. 
 
 Plumb V. Steinhoff, 170. 
 
 Plumer v. (Jregory, 249. 
 
 Plumnier v. Lake .Superior, etc., Co., 625. 
 
 Polini V. (.Jray, 58. 
 
 Pollard, re, 930. 
 
 Pollard V. Creenvil, 12. 
 
 t4 
 
 I 
 
 It 
 
 
 
Ixviii 
 
 TABLE OF CASES CITED. 
 
 PollHxfen V. Sibson, 2!m. 
 
 Pollock V. Perry, '22;"). 
 
 Poison V. DeCJear, 320. 
 
 Pommerania, The, 2!H), 2H1, 573. 
 
 Ponsfonl V. Swain, .508. 
 
 Ponsonby v. Hartley, 505, 501). 
 
 Pontifex v. F(H)rd, 'Mili. 
 
 Ponton, rr, IffS. 
 
 Ponton & Swanston. n; 204, 210. 
 
 Pool V. Levin, .SOS. 
 
 P(Hil V. P(K.l. KMJO (ailila). 
 
 Poole, re, 2.59, .580. 
 
 Poole V. Penibrey, .554. 
 
 Pof.le V. Poole, .521, 580. 
 
 Pooley V. Driver, 532. 
 
 Pooleys Trustee v. Wliethani, .502, 042, 
 
 044. 
 Pope, rr, (M), 747, 74H. 
 Popple V. Sylvester, l.S(), 220. 
 Porret v. White, 045. 
 Porte V. Irwin, 701. 
 Porter, expartv, 445. 
 Porter v. Lojies, (50, 217. 
 Porter v. Porter, 374. 
 Portnian v. Paul, 323. 
 Portnian v. Smith, .301. 
 I'ort Kowan & L. S. Ry. ('o. v. S. Norfolk 
 
 Ry., 044. 
 Post V. Leys, 025. 
 Postletliwaite, (v. Postlethwaite v. Rick- 
 
 nian, 107, 200, 507, -508, 
 Potter, re. Potter v. I'otter, 7<>8. 
 Potter v. Carroll. M8. 
 Potter V. Chanilx-rs. 415. 
 Potter V. Cotton. Vt45. 
 ]'ott.'r v. Honie& Colonial Ins. Co., .5fi8. 
 Potter \. Marsden, 730, 830. 
 Potter v. Pickle, 023. 
 Potter V. Rankin, 021. 
 Potters V. Miller, 301, 408. 
 Potts, /•«', 27. 
 Potts V. IJaiitl, 843. 
 Potts V. Deane, 404. 
 Potts V. Warwick & B. C. Co., 217. 
 Pouchee v. Lieven, 730, 8;^>. 
 Poulin V. Queliec, (niliin). 
 Poulton V. Lee, 281. 
 Powell V. Clobb, 451, .584. 
 Powell V. Duff, 834. 
 Powell V. .lewsbury, 42, 420, 422, 423. 
 
 j Powell V. Lea, «42. 
 
 ! Powell V. London Ass. Co., 8.5. 
 
 i Powell V. Nevitt, 492. 
 
 i Powell V. Peck, 78, 81, 140, 220, 071. 
 
 Powell V. Powell, W). 
 
 Powell V. Smith, 520, 0.55. 
 1 Power V. Kllis, 493, .502. 
 I Powers, re, Lindsell v. Phillips, 1G4, 70t». 
 
 Powers V. Merrinian, 391. 
 
 Powley V. Whitehead, 478, 9.50. 
 
 Poyser v. Minors, 605. 
 
 Praed v. Graham, 602 (addn). 
 
 Pratt V. Brown, 035. 
 
 Pratt V. Inman 719 (aili(n). 
 
 Pratt V. Pratt, .502, 505. 
 
 Prees v. Coke, 390, 391. 
 
 Pendergast v. Davis, 82il. 
 
 Prentice v. Consolidated Bank, 35, t!»i8. 
 
 Prentiss v. Brennan, 13, 217. 
 
 Prescott Election (D), n; 1()97. 
 
 Prescott v. Tyler, 387. 
 
 Prestney v. Colchester, 45tO. 511. 
 
 Preston v. Fullwood, .586. 
 
 Preston v. Lamont, 2{)2, 301. 30.S. 440, 44!t. 
 
 Price, re, 7;i5. 
 
 Price v. Bailey, 177, 549, .550. 
 
 Price v. Denbigh Ry. Co., 17. 
 
 Price V. Price, 1.52, 222. 281. 
 
 Price V. Manning, 594. 
 
 Price V. Thomas, 288. 
 
 Price V. We')b, 280. 
 
 Priestman v. Thoiims, .525, 055. 
 
 Prime, re, 76.5, 770. 
 
 Prince, re, 930, 
 
 Prince v. (ragnon, 69>. 
 
 Prince v, Howard, 640. 
 
 Prince '' McLean, .534. 
 
 Prince of Wales ( 'o. v. Palmer, 330. 
 
 Princess of Wales \. Karl of LiveqMK)l, 
 498. 
 
 Prindler v. McCan, 213. 
 
 Pringle, re, 342. 
 
 Pringle v. Gloag, 472, 91.5, 91(!, 917, 920. 
 
 Pringle v. McDonald, 923. 
 
 Printing Co. v. Sampson, 17. 
 
 Prioleau v. U. S. America, 498. 
 
 Pritchard v. Pritchard, 382, 'im(adiht). 
 
 Prittie, re, 174, 175. 
 
 Prittie & Crawford, re, 791. 
 
 Privett v. Hay, 439. 
 
TABLE OF CASES CITED. 
 
 Ixix 
 
 I'rivett V. Peawon, 423, 425. 
 
 I'roctor V. Bayley, 5ti {ndda). 
 
 Proctor v. (5 rant, 18, 486, 642. 
 
 Proctor V. McKenzie, 833. 
 
 Proctor V. Smiles, 506. 
 
 PnKitor V. Weller, 705. 
 
 Prosspr V. Mossop, 348, 768. 
 
 Protector Endowment C«. v. Whitlani, 738. 
 
 Prout V. (iregory, 744, 745 (adda). 
 
 Provincial Innurance Co. v. Goodeibaiii, 
 
 i)44. 
 Pn vincial Ins. Co. v. Reesor, 232. 
 Pmvincial Ins. ( !o. v. Shaw, 462. 
 Pruyn v. Soby, 3a5, ;«9. 
 Pryce v. Bury, 386. 
 Pryer v. (Jribble, 46. 
 Pryer v. Swaine, 623. 
 Prynne, re, 59, 
 
 Pryor v. City Offices Co., .W, 127, 641. 
 Pryse v. Pryse, 28, 530. 
 Prytherch, re, Prytherch v. Williams, 50, 
 
 218 {udda). 
 Pugli, r<:, Lowis V. Pritchard, 7-i(adda), 8!f,». 
 Pugh V. Heath, 37, 230. 
 Pugh V. Kern, ()51. 
 Pullen V. Snelus, 440. 
 Pultney v. Shelton, 715. 
 Punnett, ex p., 233. 
 Purdy V. Parks, 615, 653. 
 Pumell V. G. W. Ry. Co., (i62. 
 Pursley v. Bennett, 420. 
 Pusey V. Pusey, 17. 
 Pyke, ex p., 259. 
 Pym V. Blackburn, 12. 
 Pyman v. Burt, 725. 
 Pyne v. Kinna, 745. 
 
 (iuaintanoe v. Howard, 8t'>2. 
 
 Quantz V. Smelzer, 344, 374. 
 
 Cjuarman v. Williams, 255. 
 
 Quarrel v. Beckfoid, 16(>, 168, 16!r. 
 
 Quartz Hill, etc., Co., re, 542. 
 
 tjuartz Hill Gold Mining Co. v. Beall, 57. 
 
 Quartz Mining Co., re, 343. 
 
 Quay V. Quay, 697, 698. 
 
 Quebec Bank v. Radford, 337, 339, 627. 
 
 IJueen v. Smith, 144, 187, 189, 523, 791. 
 
 IJueenCity Refining Co., re, 97, 144, 225. 
 
 tiueen'slns. Co., The, v. Boyd, 625. 
 
 Queen Victoria Park v. Howard, 430, 431. 
 
 Cjuillinan v. Can. S«Mithem Ry., 438. • 
 l^uilter V. Heatley, 510. 
 l^uilter \. Maplesrin, 3.5. 
 Cjuin V. HeNsion, 407, 408. 
 Cjuinlane v. Mumane, 6()2. 
 Quinn, e.r f>., 470. 
 
 Rabidon v. Harkin, 64S3. 
 
 Racey v. ^annan, 8.32. 
 
 Radcliffe, ;v, Kuroiiean Soc. v. Radcliiffi, 
 67. 
 
 Radclitfe, re, Pearse v. Radcliffe, 769, 899. 
 
 Radclyffe v. Duffy, 391. 
 
 Radenhurst v. Reynolds, ti54. 
 
 Rae V. (ieddes, 185, 203, 206, 208, 782. 
 
 Rae V. Langford, 632. 
 
 Rae V. McDonald, .596, 789, 7JK). 
 
 Rae V. Shaw, 391. 
 
 Rafael v. Ongley, 291. 
 
 Raggett, re, e.f parte, Williams, 227. 
 
 Rainy Lake Co., re, 944. 
 
 Ralph V. Carrick, 679. 
 
 Ramsay v. .Tones, 574. 
 
 Ramsay v. McDonald, H>2, 195, 197, 201. 
 
 Ramsay v. Midland Railway Co., 484. 
 
 Ramsay v. Thompson, 653. 
 
 Rand v. Rolph, 691. 
 
 Randall v. Lithgow, 745, 761. 
 I Randfield v. Randfield, 220. 
 I Randolph, re, 35. 
 
 Ranking, re, 3;W. 
 I Rann v. Lawless, 340. 
 ! Ranson v. Patten, 565. 
 j Raphael v. Boehm, 159. 
 
 Rasborham v. Shroiwhire, etc., .502. 
 
 Rastall V. Attorney-General, 21. 
 
 Rathburn v. Hughes, 468. 
 
 Ratte V. Booth, 320. 
 
 Rattray v. George, 445. 
 
 Rawley v. Rawley, 408, 413. 
 
 Rawlings v. Lambert, 347, 348. 
 
 Rawlings v. Sewell, 916. 
 
 Rawlings v. Smith, 917. 
 
 Rawlins v. McMahon, 331. 
 
 Rawlins v. Wickham, 13. 
 
 Rawstone v. Preston, 506, 508. 
 
 Ray V. Barker, 630, 631. 
 
 Ray V. Briggs, 792. 
 
 Ray V. Sherwood, 581. 
 
 Raymond v. Little, 96 (adda). 
 
 m 
 
i V J 
 
 ^^ 
 
 Ixx 
 
 TABLE OF CASES CITED. 
 
 Raymond v. 1 apirHin, 540, 7^7. | 
 
 RayinT, rr, IM, 212. } 
 
 lUyner v. Preston, 20<), 205. 
 
 R. C Bank v. Lmkinan, 740. | 
 
 Rt-afl V. Anderson, 3.5, tifW. \ 
 
 Read v. (Cotton, 931, 932. 
 
 R«iad V. Pivst, 325, :«»). 
 
 Read v. i^'icovill, 843. 
 
 Read v. Smith, 2;i5, 392. 
 
 Readdy v. PendergaHt, 23(5. 
 
 Reudinp v. Scluwil IW. for London', 49, 881. 
 
 Rff' Kstatf L. (N). V. Yorkville& VanK'liiin 
 
 Road Oo., 789. 
 Real A Poi-^Jiial Advance Co. v. Mc(.!iir- 
 
 thy, (Mt, 218, !,. 4. 
 Reaume v. Leavitt, 943. 
 Ri'ddi(^k V. Saiigpen Mut. In. Co., 232. 
 Redfearn v. Sowerby, 471. 
 K«dford V. T.xld, 922. 
 Rfwiirrave v. Hurd, Ji"), 51, 194. 20.5, 2(M;, 
 
 437. 
 Kwimun v. Hrownsoome, 279, 33."). 
 Kwlmayne v. \'au((han, 58;i, ■'W9. 
 Kedondo v. ChayU)r, 942, !)43. 
 Kws, ri', Keen v. George, 342, 3.VJ. 
 Rees, rr, ITrquhart v. Toronto Tnwts, 179, 
 
 945. 
 Rees V. Attomey-deneral, 18. i 
 
 Rees V. Knglehack, 'M'X j 
 
 Rees V. McKt'own, (58(5. j 
 
 Ree.s V. Metri>iK)litan Buard of Works, 227. I 
 Rees V. Recs, 519. i 
 
 Reesor v. Ella, 470. | 
 
 Reeve v. Attorney-General, 387. j 
 
 Reeve v. Reeve, 353. | 
 
 Reeves v. Neville, 21.5. ' 
 
 Reg. V. Amer, 70, 90. 
 Reg. V. Annstrong, 517 (nitiln), OliO (ailda), 
 
 Reg. V. Balby & Worksop, 801. 
 
 Reg. V. Ball, 20. 
 
 Reg. V. Bangor, .54. 
 
 Reg. V. Bamardo, 64. 8B5. 
 
 Reg. V. Barnardo, Gosaage's case, fi4 (ndihi). 
 
 Reg. V. Beemer, 30, 72, 267. 
 
 Reg. V. Benson, 747. 
 
 Reg. V. Blizard, 815. 
 
 Reg. V. Brierly, 30. 
 
 Reg. V. Bunting, 4, 90. 
 
 Reg. V. Chapman, 195, 198. 
 
 Reg. V. Church Wardens of All Saintti, .54, 
 
 Reg. V. Clarke, 03. 
 
 R<'g. V. Clifton, 575. 
 
 Reg. V. Commissioners of Inland R»!venne, 
 
 .54. 
 Reg. V. Cousins, 810. 
 Reg. V. Cowell, .5;^. 
 Reg. V. Cox, 507, 508. 
 Reg. V. Dudley, 4. 
 Reg. V. Fee, 30. 
 Reg. V. Guthrie, 210. 
 Reg. V. Hill, 817. 
 Reg. V. Keyn. .'KW. 
 Reg. V. Lambounie Ry., .54. 
 Reg. V. Lofthouse, 808. 
 Reg. V. Mayor of Bangor, 812. 
 Reg. V. Mayor of Tewkesbury, 811. 
 Reg. V. McClay, 144. 
 Reg. V. McCormick, 20. 
 Reg. V. Mercer, 20. 
 Reg. V. MfK)die, 20. 
 Reg. V. O'Rourke, 107. 
 Reg. V. Registrar of .It. .Sttxjk Cos., 8M. 
 Reg. V. Richards(>n, .510 & 517 {addn). 
 Reg. V. Schram, 19. 
 Reg. V. Seeker, 20. 
 Reg. V. Sherman. 19. 
 Reg. V. Slin)p8hire .fustices, 47<>. 
 Reg. V. Slavin. 19. 
 Reg. V. Stafford, .54. 
 Reg. V. Stewart, 846, 847, 851. 
 Reg. V. Taylor, 80!). 
 Reg. V. Ward, 810. 
 Reg. V. Webster, 30. 
 Reg. V. Wells, 687. 
 Reg. V. Wigan, .53. 
 
 Reginaex rel Acheson v. Donoghue, 817. 
 Regina ex rel Adamson v. Boyd, 812. 
 Regina ex rel Armor v. Coste, 817. 
 Reginaex rel Amott v. Marchant,811, 817. 
 Regina ex rel Bartliffe v. (7'Roilly, 808, 
 
 813. 
 Reginaex rel Bland v. Figg, 810, 813. 
 Regina ex rel Blaisdell v. Rochester, 810, 
 
 813. 
 Regina ex rel Brine v. Booth, 80!t, 810, 812. 
 
 816. 
 Regina ex rel Bugg v. Bell, 808. 
 Regina ex rel Campbell v. O'Malley, 813. 
 Regina ex rel Carroll v. Beckwith, 819, 813. 
 
TABLE OF CABE8 CITED. 
 
 Ixxi 
 
 Hot-ina ox rel Chauncey v. BillingN, 8W>, 
 
 sr>. m;<, «!■''. 
 
 K*>^iiii»'X rel Clancy v. Mc[iit>mh, 810,812. 
 R»!ginii fx icl Clancy v. St. .Ifaii. 808, 801K 
 Regina J-x rel Clark v. McMuUen, 81'.'. 
 H«(rina nx rel Clint v. Uphani, 808. 
 Regiiiu ex rel Coleman v. O'Hare, 808, 812. 
 Reifinaex rel Corbett v. .lull. 808, 817. 
 Regina (^x rel Conpland v. Welwter, 81."), 
 
 «17. 
 Kepriiiaex rel Coyne v. C!hi»iiuini, 808. 
 Kigina ex rel Cnizier v. Taylor, 817. 
 Regiiiaex nd Davis v. Wilson, slti. 
 Rfgina ex rel Dexter v. (iowan, 812,. 
 Regina ex rel Dougherty v. McClay, 148, 
 
 MO. 
 Rejjiiia e\ real Lanaglian v. McMalion, 812, 
 Uegitia ex rel Frelit/, v. llowland, 144,710. 
 Regiiia 1,'x rel Fonl v. McKae, 812. 
 Kt'gina ex n al Forward v. Detlor, 811, 
 
 si-.'. 
 Kffjina e\ re.lCJnint v. Coleman, (i8(), 811, 
 
 It.jfinaex reUirayw.n v. Hell, 808, 810. 
 Rfjfina ex rel (lordanier v. JVrry, 81(». 
 Reffina e\ rel Halstead v. Ferris, 810. 
 Kegiiia ex rel Hamilton v. l*i|H>r, 810, 812, 
 
 SIC. 
 R«'l,'ina ex rel Haner v. Roljerts, 810. 
 Regiiia ex rel Hannah v I'aul, 81"). 
 Regiii:i ex rel Harris v. HriuHmrn, 80S. 
 Regiua ex n'l Hart v. liindsay, 804. 
 R.<;iiiii ex rel Hawke v. Hall. 81 ">, 817. 
 Kegiua e\ rel Helliwell v. Ste|iheii.son, 81;{. 
 Regiiiaex rel Hurvey v. .Sc(»tt, Si 2, 814 
 Reffiiia ex rel.fohns v. Stewart. SO'.I. 
 I{e<;iiia I'X rel Johnston v. Muniey, 817. 
 Regina ex rel Kelly v. Ion, 812. 
 Regina(^x rel Kirk \. Asselstine, S]{'<. 
 RKffina ex rel Lawrence v. WcKKlrutf, 80!t. 
 Regiiia ex rel Ijinton v. .Iiu^kson, 810. 811, 
 Regiiia ex rel Loyall v. Fonton. 808. 
 Rejfinaex rel Lutz v. Williamson, 810, 
 Regiiia ex rel iMcDonald v. .\ii(ler.son, 810. 
 Kegiiiaexrel Mc<Tfm\eriii \. Lawlor, 800, 
 
 81(». 
 Regina ex rel McLaughlin v. HiukM,80il. 
 Regina e.x rel McLeun v. \V'at.H()n, 811. 
 Regiiia ex rel McManus v. Ferguson, 811, 
 
 817. 
 
 Regina ex rel McMullen v. DeLisle, 80!l, 
 
 810. 
 Regina ex rel McVean v. Graham, 817. 
 Regina ex rel Metcalfe v. Smart, 811, 812. 
 
 Reifina ex rel .Mitchell v. Adams, 808. 
 
 Regina ex rel .Mitchell v. Davidson, 81.'"). 
 
 Regina ex rel .Mitchell v. Kankin, 817. 
 
 Regina ex r«'l O'Dwyer v. Lewis, 811. 
 
 Regina ex rel O'Reilly v. Charlton, 813, 
 81.-.. 
 
 Regina ex rel Patterson v. Vance, 8(Mt. 
 
 Regina ex rel Piddington v. Riddell, 814, 
 817. 
 
 Regina ex rel l\)mer(>y v. Watson, 808, 81i<, 
 817. 
 
 Regina ex rel Regis v, Cusa<', 808. 
 
 Regina ex rel Richmond v. Tegart, 812, 
 81(1. 
 
 Regina ex rel Rollo v. Beard, 810. 
 
 Regina ex rel Rosebush v. Parker, S08. 
 
 Regina ex rel Ross v. Rastal, MS, 81i>. 
 
 Regina ex rel Shaw v. McKen/.ie, 81;{. 
 
 Regina (^x rel Swan v. Rowat, 810. 
 
 Regina ex rel 'i'averner v. Wilson, 80S. 
 
 Regina ex rel Telfer v. Allan. 81.S. 
 
 Regina ex rel Tinning v. Kdgar, 812. 
 
 Regina ex rel Totten v. IJeini, 817. 
 
 Regina ex rel White v. McClay, 810, .SI I. 
 
 Regina ex rel White v. Roiicli, 80!t, 813, 
 
 Regina ex rel Wilson v. Duncan, 144. 
 
 Reichel v. Mc(iratli, 43 (m/t/a), 440 (ocWai. 
 
 Reid v. Banks, .");il. 
 
 Reid V. Inglis, 20. 
 
 Reid V. Langlois, .")0r>, "(OS. , 
 ! Reid v. McDonald, S.-.;i. 
 i Rei.l \. Shergold, 12. 
 ' Reid V. Stei>hens, 014. 
 I R«'id V. Trimmer, 321. 
 I Reid V WiLson, 228. 
 j Reiffenstein v. HiM)|)er, 23, '.inO. 
 I R<ist V. a. T. Ry. Co., 442. 
 
 Republic of Bolivia v. Bolivia Navigation 
 
 c:o., ;■>:«), .531, 040. 
 
 Republic of Costa Rica v. Krlanger, .501, 
 
 042, 043, 048. 
 Republic of Costa Rica v, Strauslxirg. 73(), 
 
 740. 
 Republic of Liberia v. Imperial Bank, 500. 
 Republic of Lilieria v. Roy«', 401, 4!»2, 4»8, 
 
 r.00. 
 

 Ixxii 
 
 TABLE OF CASEB CITED. 
 
 K«public t)f Pt'ni v. Drcyfud, 300. ' 
 
 Rostell V. Stiiwart, 4(»4. 432, 4W. 
 
 KevuU, re, Leigh v. RiuiiHoy, .MO. 
 
 Rew V. Anthony, 1(»7, 2t»4. 
 
 Rex V. Camiarthcn, SOU. 
 
 Rex V. Collier, 574. 
 
 Rex V. Cri«p, 574. 
 
 Rex V. Daw, 8;«. 
 
 Rex V. Delaval, 03. 
 
 Rex V. Hall, .53. 
 
 lt*)X V. Ogden, 800. 
 
 Rex V. Oundln. »m. 
 
 Rex V. Parry, 800. 
 
 Rex V. Sheriff of Middh-nex, 730. 
 
 Rex V. Sheriff of Surrey, 730, 83(;. 
 
 Rex V. University of Cambridge, .53. 
 
 Rex V. Ward, 180. 
 
 Reynell v, Sprye, .507. 
 
 Reynolds v. Barker, 043. 
 
 Reynolds v. Coleman, 301, 304. 
 
 Reynolds v. C;o))pin, 10, 340, 7<i«. 
 
 Reynolds v. (liKllee, .507. 
 
 Reynolds v. Htreeter, 728. 
 
 Rhodes V. Buckland, 2.30. 
 
 Rhodes v. Dawson, 882, 044. 
 
 Bhodes V. Rhodes, 102. 
 
 Rhfides V. Swithinbank, 334. 
 
 Rica (iold Washing Co., re, 12, 437. 
 
 Rice V. Alliance, etc., (ias Co., 362, 368. 
 
 Rice V. Fletcher, 825». 
 
 Rice V. George, 108, 233, 780. 
 
 Rice V. Howard, 601. 
 
 Rico V. Linsted, 623. 
 
 Rich V. Darrett, 360. 
 
 Richards v. Cullerne, 127. 
 
 Richards v. Duncan, 897. 
 
 Richards v. Howell, 44. 
 
 Richards v. Jenkins, 870 (adda). 
 
 Richards v. Kitchen, 715. 
 
 Richards v. Morgen, 508. 
 
 Richards v. Platel, 469. 
 
 Richards v. Scarborough Market Co. , 4(>8. 
 
 Richardson, re, 930. 
 
 Richardson, re, Richardson v. Richardson, 
 
 a5i. 
 
 Richardson v. Beaupre, 316. 
 Richardson v. Elmit, 74.5. 
 Richardson v. Greaves, 751. 
 Richardson v. Hastings, 507. 
 Richardson v. Jenkins, 4&5, 89i», 902, 003. 
 
 Richardson v. Richardson, 23, 8;W, 84.5. 
 
 Rickanls v. Hough, 549. 
 
 Richmond v. Proctor, 623. 
 
 Ricker v. Ricker, 107, 200. 
 
 Riddell V. McKay, 947. 
 
 Riddell V. Strathniore, 442, 449. 
 
 Riddle v. Emerson, 13. 
 
 Riding v. Hawkins, 6()2. 
 
 Ridler, re, 788. 
 
 Ridley v. Sexton, 13, 162. 
 
 Rigney v. Fuller, .388. 
 
 Rihel V. Livingstone, 616. 
 
 Riley v. Streatfield, 202. 
 
 Riley's Trusts, re, 055. 
 
 Ring V. (ilassford, 602. 
 
 Ri!\qrrove v. Ringrove, .520, 907. 
 
 Rio (irande, etc., S. S. Co., re, 900. 
 
 Rijiley V. Ripley, 15. 
 
 Ripley V. !'>.i.wyer (;19. 
 
 Rishton V. Grissell, 162. 
 
 Ritchie, re, Sewery v. Ritchie, 18.5. 
 
 River Stave Co. v. Sill, 789. 
 
 Rivet V. Descnirfli, 169, 172, 780. 
 
 Robb V. Murray, .3.55 & .3.59 {mlda), 902. 
 
 Robbins, re, 178, 761. 
 
 Roljerts, re, 10<i9. 
 
 Roberts, re, GiKKlchap v. Rob*'rts, 773. 
 
 Rol)erts v. Bull, 915. 
 
 Rol)erts v. City of Toronto, 745. 
 
 Rolterts v. Death, 753. 
 
 Roberts v. Durie, 200. 
 
 Rolwrts v. Eberharflt, 217. 
 
 Rolierts v. Evans, 3,3.5, 354, 3.5.5. 
 
 Roberts v. (iuest, 630. 
 
 Roberts v. Lucas, .576. 
 
 Roberts v. Opj)enheim, .503, .50{), 511. 
 
 Roberts v. Watkins, 3:<8. 
 
 Robertson, re, 2.5, 199, 202, 932. 
 
 Robertson, re, Robertson v. Robertson, 13, 
 
 184, 261, 349, 776, 919, 922. 
 Robertson v. Cooley, 444. 
 Roller tson v. Coulter, 270. 
 Robertson v. Coulton, .5.54, 831, 8.32. 
 Robertson v. Cowan, 943. 
 Robertson v. Daganeau, 584. 
 Robertson v. Grant, 911. 
 Robertson v. Hetherington, 39!5. 
 Rt)bertson v. Holland, 790. 
 Robertson v. Howard, 403. 
 Robertson v, McMaster, 944. 
 
TABLE OF OASES OITED. 
 
 Ixxiii 
 
 Hnlirrtson v. \fpr(), 200. 
 
 Kclii'.V V, Snti'fcll Miiiiiiff Co., 304. 
 
 Rolmict V. I'iclvi^riii^', 171. 
 
 R(il)iiis V. CiirnDii, 544. 
 
 Rollins V. (Joltliiit'liivin, 470, 471. 
 
 Roliinson. /•' , 23, .'•.i)i;, Mlt, 048. 
 
 Robinson, /r, rickird v. Wheater, 782. 
 
 Robinson v. Herjfin, 2.34, 848. 
 
 Roliinsoii V. Ri'iulMbaw, .'547, (i!)2. 
 
 Robinson v. Budgctt, f)10. 
 
 Roliiiisoii V. IJyerM, 223. 
 
 R(il)inson v. Cliiidwick, 573, 582, 594. 
 
 Robinson v. Cumin inur, 150, 181. 
 
 Robinson v. Dolwon, 324. 
 
 Robinson v. I )rak('s, (180. 
 
 Robinson v. (Tiilland, 720. 
 
 Robinson v. Hadley, (!1. 
 
 Robinson v. .Tonkins, 4\)j,adda), 881 (adda). 
 
 Robinson v. Ncsbitt, 740. 
 
 Robinson v. Pett, 173, 174. 
 
 Robinson v. Pickering, 5.5, 210, 281, 338. 
 
 Robinson v. Ralston, 026. 
 
 Robinson v. Ridley, 100. 
 
 Robinson v. KichardHon, 086. 
 
 Robinson v. Robinson, 140, 150, 100, 260, 
 
 IIHi. 
 
 Robinson v. Tucker, 78, 6.59, 007, 068. 
 
 Robinson v. Wliitooinb, 156, 244, 771. 
 
 Robison V. Killey, 174. 
 
 Roblin V. McMahon, 20 (adda). 
 
 Robson V. Arff-.«, 152, 221, 562, 643. 
 
 Robson V. Dobbs, 43. 
 
 Robson V. Robson, 204, 780. 
 
 Robson V. Wride, 057, 688. 
 
 Rixitie V. Patrick, 585. 
 
 Rock Portland Cement Co. v. Wilson, 02. 
 
 Rocke V. Harte. 159. 
 
 Rocke V. McKerrow, 598 (adda), 060 (adda), 
 
 ()U7 (nddu). 
 Rfxlger V. Coinptoir d'Escompte de Paris, 
 
 180. 
 Rodgers v. Rotifers, 200, 340. 
 Rodman v. Rodman, 23, 430. 
 Ro<ly V. Rody, 770. 
 Roe V. Braded, 212. 
 Rfie V. Davics, 440, .541. 
 Roe V. Hammond, 732. 
 Roe V. Stanton, 224. 
 Roffey V. Millor, .5«i4. 
 Roger V. Cruikshank, 498, 554. 
 J. A. 
 
 Rogers, /r, Rogers v. Rogers, 778. 
 
 Rogers V. }{oni, 361, 525, 065. 
 
 Rogers V. Hunt, 6(»7. 
 
 Rogers V. .Tones, 32*.t. 
 
 Rogers V. Ijake, 213. 
 
 Ropers V. Lewis, 322, 32.3. 
 
 Rogers V. Manning, 550. 
 
 Rogers V. Maule, 387. 
 
 Rogers V. Rogers, 320. 
 
 Rogers V. Wliiteley, 750. 
 
 Rogers v. Wilson, 643. 
 
 Roissier v. Westbrooke, 287, 288, 
 
 Rolf V. .Somerville, 16. 
 
 Rolfe V. McLaren, 415, 649, 528. 
 
 Rolfe V. Rolfe, 17. 
 
 Rolker v. Fuller, 134. 
 
 Rolph V. U. C. Building Society, 152, 346, 
 
 3.J2. 
 Romanes v. Herns, 171, 189, 695. 
 Romann v. Broadrecht, 407, 408. 
 Rooke V. Czarinkow, 899. 
 Rooke V. Lord Kingsdown, 39. 
 R'xmey v. Wliiteley. 147. 
 Rojjer, re, 338. 
 Rory, The, 430. 
 
 Rose V. Garden Lodge, etc., Co., 42. 
 Rose V. Hickey, 80, 168. 
 Rose V. Sharrod, 174. 
 Rosebatch v. Parry, 176, 183, 185. 
 Koselle v. Buchanan, 432. 
 Rosenlierg v. Cook, IDJt, 202. 
 Rosenberger v. (Irand Trunk Ry. Co., 641. 
 Rosenberger v. Lindo, 65. 
 Rosenheim v. Silliman, 487, .538. 
 Rosenstadt v. Rosenstadt, 430. 
 Rosher v. Kosher, .531. 
 Rositer, re, Jones v. Bartholomew, 558. 
 Rosier, re, 478. 
 Ross, re, 89, 178, 234, 499, 524, 661 (adda), 
 
 761, 760. 
 Roe ' V. Balfour, 8.32. 
 Ross V. Buxton, 471 (adda), 472. 917. 
 Ross V. Can. Pac. Ry., 583, 584. 
 Ross V. Carscallan, 003. 
 Ross V. Clifton, 443. 
 Ross V. Dublin United Trai.iways Co., 
 
 510. 
 Ross V. Gibbs, 284, 507. 
 Ross V. Hamilton, 234, 
 Ross V. Jacques, 944. 
 
 \ 
 
Ixxiv 
 
 TABLE OF CASES CITED. 
 
 Rosa V. Maldn.s 728, 2()7. 
 JUm V. Mor.ay, 472, 473, 91.5, ill7. 
 RcMS V. Pcrrault. US, l«!», 2:11, (i!M. 
 RoHH \. Rohcrtsim, ^)\r>, 
 
 R()HH V. RoHS, l")!. 
 
 RoH8 V. Htclc, 24, 213. 
 R«iHs V. St.v..ii.M(.n, 2L'r), 22«. 
 
 1{(1SH V. Viwlt'l', (lir), (i.")7. 
 
 Rosmtt V. Hartley, H33. 
 
 Rotlitrliain v. I'liist, 411, 02<l, fi;}.'?. 
 
 RouiM'll V. I'iirscms, (137. 
 
 RoiiHilloii V. ivdiisilliin, H7. 
 
 Routloy V. Harris, 4i»0 (ndiiit). 
 
 Rowe V. .Tiirvis, 222. 
 
 R(i\vt) V. Kt'lly, ")(i!>. 
 
 Rciwe V. Wert, 17(i, !><•*•. 
 
 Rowii V. W.hkI, lt)2, Hi7, 216, 217. 
 
 Rowland v. IJurwcll, 170. 
 
 R(jwlcy V. Latfni, 412, 4.')0. 
 
 Rowley V. Ridley, 71S. 
 
 Rownxon, /■•, Field v. White, 7<>2. 
 
 Row«ell V. Morris, ,32!t, 34(i, 247, 7«1, 707, 
 
 Royal Britisli Co. v. Boiuash, 205. 
 Royal Canadian IJank v. Dennis, 200. 
 Royal Canadian l^ank v. Stevenson, 050. 
 Royal Mail Steam Pivcket Co. v. Brahain, 
 
 2»8. 
 Royle, re, 271. 
 Royle V. Bushy, 724. 
 Rudall V. Kurd, 650. 
 Rudd V. Frank, CyOJ, 598, 708. 
 Rudow V. Cireat Britain Assurance Co., 
 
 899. 
 Rumble v. Mtxjre, 323. 
 Rumbold V. Forteath, 502, 504. 
 Rumley v. Winn, 417. 
 Rumohr v. Marx, 81, 420, 422, 470, 609, 
 
 7(51, 704. 
 Rump V. Greenhill, 700. 
 Rumsey v. Read, '>2H, 044. 
 Rumsey v. Thompson, 324. 
 Runciman v. Armstrong, 8.32. 
 Rundell, re, 795, 7!K). 
 
 Runnacles v. Mesquita, 028, 029, 030, 031. 
 Rusbrooke v. Farley, 381. 
 Rush, re, 719. 
 Ruskin v. Robinson, 894. 
 Russ V. Mills, 10. 
 Russell V. Brucken, 145, 005. 
 
 R\issell, ri, Burnett v. AlIeTi, 720. 
 
 Russell V. Anglian Ry. Co., 220, 742. 
 
 Russell V. Caniliefort, 2fMi. 
 
 Russell V. Canada Life Ass. Co., 44(i. 
 
 Russell V. I)avieM, 870. 
 
 Russell V. Davey, 231. 
 
 Russell V. l-'iaser, 210. 
 
 Russell V. «J. W. R. Co., 549. 
 
 Russell V. Le Francois, .35. 
 
 Russell V. Maedonald, 489,51.3, 73(i, 740. 
 
 Russell V. Roliertson, 172, 232. 
 
 R\issell V. Romanes, 171, 3.")3. 
 
 Russell V. {{nss.ll. 234. 
 
 Russell V. Waterford & Limeri(;k Ry.,!l41. 
 
 Russell Case, 1.3(». 
 
 Ruston s Pop'', ^"^l- 
 
 Ruston V. Tobin, 355, 301. 450. 
 
 Ruth V. Taylor, 572. 
 
 Ruttan V. fieviseonte, 727. 
 
 Rutter V. Chapman, .'i.59. 
 
 Rutter V. Tregent, 430. 
 
 Ryan, re, 472. 
 
 Ryan v. ('anada Soutliem, 521. 
 
 Ryan v. Fish, 07, 145, 280, 313, 449, 665, 
 
 893, <M»5. 
 Ryan v. Fraser, 8iM5. 
 Ryan v. Ryan, 35. 
 Ryan v. Simonton, 184, I8n {aifda). 
 Ryckman v. Caniula Life Ass. Co., 527. 
 Rykert v. St. John, 180. 
 Rylands v. Reardon, 750. 
 Rymal v. McEachem, 589. 
 Rymil v. Wansworth, etc., 751. 
 
 S. , re, (14 C. P. .323) 258. 
 
 Sachs V. S|)eilman, 4.33. 
 
 Sacker v. Ragozine & Co., 99. 
 
 Sackville v. Pacey, 408. 
 
 Sadlier v. Doyle, 0.50. 
 
 Sadher v. Smith, 445, 449, 480, .556. 
 
 Saffron Waldron Benefit Co. v. Baynor, 79. 
 
 Salamon v. Donov.in, 744, 750. 
 
 Salt* V. Kitson, 32(>, 327. 
 
 Salm Kyrburg v. Posnanski, 714. 
 
 Salmon, re, I'riest v. Uppleby, 082. 
 
 Salt V. CiM-iier, 45, .53, 749. 
 
 Salt V. Edgar, 3S3. 
 
 Salter v. :Mcriewl, 880. 
 
 Saltmarah v. Barrett, ICO. 
 
TABLE OF CASES CITED. 
 
 Ixxv 
 
 SftiiiiH V. TnOand, 748. 
 
 Hiitiiiwon V. McArtliiir, 7i>. 
 
 Sam|W'iii V. O'Donni'll, 401. 
 
 Siiini"*"" ^' i^''"^*"" *■ f*"®' ^y- ^"m 740, 
 
 74!l. 
 SaiiilriN V. MhIhImii'i,', 210. 
 Siinilns V. I'.'ck, :W>. 3(13. 
 Hiuiilcrs V. I'opli', LTi. 
 SiUKlfi-" V. Siiiidcrs, "147. 
 Suiiili'r-i<m V. A-tliHclil, H'Mi, 
 Samlri'Miii V. Iiii'i', '2'2'2. 
 SaiiiliTSdii V. Wnlkcr, 47''^. 
 Saiiilfcnl V. I'ortcr, M'.M, Hilil, !W2 ("'/'/'«). 
 Saiiiliiii V. IloiipiT, 171. 
 Saiiily* V. FIorciuM', -i'.W. 
 Saiulvs V. fiduis, 4l;t. 
 SaiiiT V. ISiltciii, K!l(». 
 SaiikfV V. Al<'\!iii(lfr, .">(I8. 
 SaiifKiiii V. (Jixidc, (124. 
 Sainsiiii V. SaiiiMim, 74."). 
 Sarpaiit v. Knul, (il, L'IM. 
 Sartfiint v. City of Toronto, H'i'X 
 Sarnia Afffiit. Iini). Co. v. Perdue, .')M4, 
 
 (1!I2. 
 Sartli V. lihmfrey, 12. 
 .Sato, /■'', V. Iluliltard, (iS.*), 74.'), 74!), 751. 
 Saugeeii v. Church Soc,, IH. 
 .Saunders v. lireakie, KJ, KW. 
 .S.wnderK v. Furnival, (575. 
 .Saumleri v. Jones, 4.'H0, 4.'{1, 432. 
 Saunders v. Pawley, i')77. 
 Saunders v. Saunders, 185, 
 Saunders v. HtuU, 421. 
 Savage, re, (555. 
 Savage V. Snell, 531. 
 Savage v. Tyera, 530, 531. 
 Saville's Case, 1(>. 
 Sawyer v. Sawyer, 3(»3. 
 Saxbey v. Kastt'rhrooke, 54, .57, 501. 
 Saxby v. fJloucester Wagon Co., !»0, 100. 
 Saycrs v. CoUyer, (i2. 
 Saykir v, C(K)i>er, .38. 358. 300. 
 Scane v. iJuckott, .355, 420, 450, 929. 
 Scanlaii, ir, (5.5. 
 Scarf V. .Tardino, 343. 355. 
 Scarlett v. Canada Co., 211. 
 Sc(!i)tre V. Co., re, 872. 
 Sceptre Licensed Victuallers Fire Ins. Co., 
 
 «'■ I'lirte, lluw, 81. 
 Schibsby v. We-stenholz, 87. 
 
 Hchjott V. Sohjott, .340. 
 Schneider v. Agnew, 73!(. 
 H<!hneider v. I?att, :»t;3, 3(i(i, .370, 373. 
 Schneider v. I'roctor, 425, Mii, 
 Sciiotield V. In(,diani, 1<)3. 
 Hcholefield v. Lockw(HKl, 172. 
 Sciioles, n; 278. 
 
 SchonilH-rj,' v. Zoehelli, 284, 4Ki, 430. 
 SchriiK'K V. SciiraKir. "HI. 
 SchriKler v. Myers, oSH. 
 Schroeder v, ("ll•u^;il, 725. 
 Schr.H.d..r v. The Central Maiik, 4!». 
 S(;hroeder v. City Hank, 4!l, 
 Sclndd V. Kosenstadt, (»(!!». 
 Solator V. Cotton, 172. 
 
 Scott. /■(', 05, .vjri. 
 
 Scott V. Hene<iiet, .502. 
 
 Scott V. liliick, 383. 
 
 Scott V. Muridiani. 521, !I25, 
 
 Scott V. Carveth, (i7t>. 
 
 Scott V. Cn'ighton, 4(MI, 40.-), 420. 
 
 Scott V. Crerar. »HM». 
 
 Scott V. Didy, lO'.IK (,((/(/((). 
 
 Scott V. Fleming, 408. 
 
 Scott V. Hunter, 170. 
 
 Scott V. Livesey, 093. 
 
 Scott V. McDonnell, 3!I0. 
 
 Scott V. McKeown, 230. 
 
 Scott V. McRae, 8.53, 85.5. 
 
 Scott V. Michell, 840. 
 
 Scott V. Morley, 338, 339. 
 
 Scott V. Reikie, 13. 
 
 Scott V. Richebourg, 910. 
 
 Scott V. Royal Wax Candle, 307. 
 
 Scott V. Sampson, 428, 543. 
 
 Scott V. The Royal Wax Candle Co., 298, 
 
 302, .307. 
 Scott V. Wye, 330, 3.37, 027. 
 Scoville V. Noble, 910. 
 Scully V. Lord Dundonald, 40. 
 Sculthoriw V. Hum, 1.58, 189. 
 Scutt V. Freeman, 037. 
 Sea V. McLean, 205, 206. 
 SeabrfK)ke v. Young, 435. 
 Seager v. Barber, 538. 
 Seagram v. Knight, 47. 
 Scarlo V. Choate, 42, 220. 
 Searlc v. Mattliews, 870. 880. 
 Sears v. Lawson, 323, !)!»2, 504. 
 Seatli V. Mcllroy, 925. 
 
 J' 
 
 
Ixxvi 
 
 TABLE OF CASES CITED. 
 
 i: 
 
 Seaton v. Feuwick, OO7. 
 
 Seaton v. (Jrant, 43. 
 
 Secord v. 'lVrryl)orry, (JIKi. 
 
 Secretary of War v. Cluibl). S72. 
 
 Seel wick V. Yedras :Miniiiff Co., 273, 302. 
 
 Seenr v. Lawsoii, 107, 357, SjIS, 944. 
 
 Seear v. Webb, 47H, r>l7, !")58. 
 
 Segsworth v. Meriden Silver Plating' Co., 
 
 885. 
 Seidler v. Slieppard, 321. 
 Selby V. Cnjtcliley, 04.5. 
 Selby V. Pomfret, 220. 
 Seligman v. Mansfield. 371. 
 Sellgmann v. Yoiing, 431. 
 Selous V. Croyden, 713. 
 Senn v. Hewitt, 488. 
 Sei)hton v. Quillani, 3.51. 
 Seraglio, The. 50. 
 Seroka v. Kattenburg, 339. 
 Serrao v. Noel, 4, 03, 4j0, 941. 
 Servas v. Servas, .584. 
 Seventh E. C. B. S , re, 944 
 Severn v. Sever.i, 23. 
 Severance v. Civil Service Supply, 330. 
 Sewell V. B. C. Towing Co., (UO. 
 Sewell V. Buffalo, etc., Ry. Co., 880. 
 Sewell V. Eden, 730. 
 Sexton V. Shell, 10. 
 Seymour v. Corp. of Brecon, 751. 
 Seymour v. ]JeMar^h, .583. 
 Seymour v. Longworth, 497. 
 Shafto v. Bolokow, 585. 
 Shakes] M-are re, 3.S0, 377. 
 Shaiiley v. Moore, 744, 745. 
 Sh.Tpcott V. Cha|)i)ell, 001. 
 Shardlow v. Cotterill, 440. 
 Shixrp V. Lethbridge, .580. 
 Sliiirp V. Lush, 352. 
 Shari) V. McHenry, 404, 022. 
 Sliarp V. Sharp, 374. 
 Sharjie v. Lambe, .5.59. 
 Sharpley's Trusts, rr, 344. 
 Shave V. Spodts 843, 
 Sliaver rr, 794, 802. 
 Shaver v. (Iray, 347. 
 Sliaver & Hart, r>; (»0. 
 Sliaw, re, 05, 751, 154, 101, 170. 
 Sliaw v. Crawft)rd, 25, 20;, 212, 353, 586. 
 Shaw V. E. of Jersey, 55, 58. 
 Shaw V. Evans, 024. 
 
 Shaw V. Freedy, 10, 704. 
 
 Shaw V. Hardingiiam, 327 
 
 Shaw V. Huds(m, 2.55. 
 
 Shaw V. Liddell, .327. 
 
 Shaw V. Neale, 473. 
 
 Shaw V. Smith, 497, 873. 
 
 Shaw V. Tims, 227. 
 
 Shaw V. Wright, 718, 719. 
 
 Shea V. Denison, 749. 
 
 Shead, vx p., 093. 
 
 Sliearman v. Findlay, 302. 
 
 Shedden v. Patrick, (>57. 
 
 Sheehan v. G. E. Ky. Co., .318, .340, aH 
 
 35.5, 301, 420. 
 Sheffiel i Waterworks v. Yeomans, 420. 
 Sheldo'i V. Mumford, .574. 
 Shelf ord v. Louth & E. C. Ry. Co., 025, 
 
 (i32. 
 Shelley v. Goring, 340. 
 Shelly V. Hussey, 498 {aii<in). 
 Shennan v. Parsil!, 10. 
 Shephard, re, Atkins v. Siiephard, 5(U 
 
 (ailda), 7i7 (fitkia). 
 Shephard v. Beane, 305, 407. 
 Shephard v. Dalt)iac, .548. 
 Shepheard, re, 2tS. 
 Shepherd v. Hayball, 410, 940. 
 Shejiherd v. Jones, 171. 
 Shepherd v. Silcock, 293. 
 Sheppard v. Kennedy, 280, 281. 
 Shepherd v. Kennedy, 401. 
 Sherboneau v. .Teffs, 212. 
 Sherbr(K)ke v. Tnffnell, 77. 
 Sherwin v. Sliaks])ear, 107. 
 Sherwotxl, re, 173. 
 Sherwood v. Catni)bell, 193. 
 Sherwood v. f'lii-..-, 901?. 
 Sherwowl v. Freeland. 32S, 330. 
 Sherwood v. (Toldman, 278. 
 Shewen v. Vanderhorst, 702. 
 Shillito V. Child & Co., 289. 
 Shillito V. Collet, 05. 
 
 Shipman, re, Wallace v. Shiimian, 349, 'IW. 
 Shipiiey v. Grey, 747. 
 Shi\)way v. P.all, 2.'-)0. 
 Short & Howard, re, 212. 
 Showell V. Bnwron, <i44. 
 Shrapnell v. liaing, 89(». 
 Shrigley v. Taylor, 574. 
 Shuiw V. Shupe, 81, 82. 
 
 ■ji '!„:;«• 
 
TABLES OF CASES CITED. 
 
 Ixxvii 
 
 Sickles V. Morris, 912. 
 
 Sidney v. Ranger, 1!>7. 
 
 Siddons v. Lawrenc-, 8!)8. 
 
 Sierich v. Woodcdck, Slfc") (iidila), 110(5, W>*X 
 
 Hievewri^'llt v. Ley.s, 81, loS, 139, 175, G!)1, 
 
 ()!•"). 77-'. 
 Sievewrigiit v. Sievewright, 594. 
 Sillier Lifflit Co. v. Silber, 360, 
 Silver V. Stein, .328. 
 Silvester Mfc. Co. v. McEiichon 61. 
 Simmers v. Erb, 2(Y.\ 648. 
 Simmons v. Campbell, Ki. 
 Simmons v. Great Eastern Ry. Co., 469, 
 
 471, ti47. 
 Simon V. La Bank Nationale, 948. 
 Simons v. Milrnan, 346, 350. 
 Simonton v. (xrahani, 228, 773. 
 Simpson, ex p. , 445. 
 Simpson v. Denny, 325, .327. 
 Simpson v. Grant, 18, 421. 
 Simpson v. Home, 176, 763, 769. 
 Simpson v. Hutchison, 220. 
 Simpson V. Ottawa, 694. 
 Simpson v, Prescott & Ottawa Ry. Co., 218. 
 Simpson v. Renton, 834. 
 Simps(m V. Si unison, 21.^. 
 Simjison v. Storer, 921, 9*5, 936. 
 Sims V. Ridge, 154. 
 Singer v. Williams Mfg. Co. 549. 
 Sittinglwrnrni.' k.-ir. Ry. (!<i. v. Lawson, 2.59. 
 Sivcwright v. SiVfwriglit, 4Ht). 
 Si<ae V. Cluipniaii, 170. 
 >'\m\ V. Hollaiid, 187. 
 Si<clly V. Skelly, 925. 
 Skiimer. ,; . !I2'.I (ml'ld). 
 SkinniT v. Ain-iwortii, 20i(. 
 Skinner v. .Skinner, 65. 
 Skinner v. White, 371, 37-5. 
 Slack ■■. Midland, 75. 
 Sladc, ,v. Shade v. l[uliiii'. 718. 
 Slaiie V. Tucker, ,507. 
 Slater v. Canadian Central Ry. Co., 436, 
 SiatiT V. Fisken, 25. 
 Slater v. Oliver. 789. 
 Slater v. Slater, 249, 318, 763, 768. 
 Slater v. StiKldard, 469. 
 Sleiglit V. Lawson, 158. l(;5, 181. 
 Sloinan v. (Jovernor of New Zealand, 
 
 aiH). 298. 
 Slomiin V. Walker, 21. 
 
 Small V. Eccles, 160, 504, 
 
 Small V. Lyons, .569 (adda). 
 
 Small V. Union Permanent B. S., 4(i. 
 
 Smalley v. Gallagher, 854. 
 
 Smallpage v, Yonge, 275, 276, 482. 
 
 Smallpiece v. Lee, 74, 894. 
 
 Smart, re, 1.5, (53, 64, 65, 460, 692. 
 
 Smart v. Flood, til. 
 
 Smart v. Miller, 744, 74.5. 
 
 Smith ex p., 715. 
 
 Smith, re, 6.5, l(i9 ( (idda),^i)i, 4f 8, .522, 52-., 
 
 782, 783, 928. 
 Smith, re, Bridson v. Smith, 620, 64 \ 
 Smith V. Armitage, 97. 
 Smith V. Ashton, 12. 
 Smith V. Bahoock, 485, ,549. 
 Smith V, Barnes, .505. 
 Smith V. Bird, 559. 
 Smith V, Bonnisteel, 170. 
 Smith V. Buchan, 619. 
 Smith V. Buller, 697, 921, 923, 
 Smith V. Chadwiok, 437, 
 Smith V. Clarke, 484. 487, 
 Smith V. Cowell, 4% 53, 749, 
 Smith V, Critchfield, 877. 
 Smith V. CnK.ks. 186. 
 Smith V. Crojiper, 343. 
 .Smith V. Daniell, .5(K>. 
 Smith V. Darlow, 661, S80. 
 .Sniitli V. Davies, 77, 635, 64"), 
 Smitii V. Day, 59, 872. 
 Smith V. Doaii, 213. 
 Smith V. Dobbin, 279, 309, 6(M). 
 Smith V. Dunn, 199. 
 Smitli V. Edwardi's 626, (WO. 
 Smith V. Farr, 430. 
 Smith V. (xilwon, 170, ,5,30. 
 Smith V. Goldi.., 1,8, 158, 176. 
 Smith V. Good, 196. 
 Si-iith V. (Jreey, 432, 485, 492, .501, .544, 54S, 
 
 549, ,550. 
 I Smith V. Gnnu, ,56(i. 
 Smith \. Hargrovo, 58(). 
 Smith V. Harris, 511. 
 Smith V, Hasf'ltine, 357, 461, 462, 
 Smith V. Hendeiwm, 13, 349. 
 Smith V. Horsfall, .321. 
 j Smith V. Hurst, 21(!. 
 j Smith V. Keal, 723, 87K. 
 1 Smith V. Laiid & House Projmrty Co. , 20.5. 
 
 / i 
 
 A\ 
 
u 
 
 Ixxvi 
 
 u 
 
 TABLE OF CASES CITED. 
 
 Smith V. Lawler, 128. 
 
 Smith V. Leveaux, 14. 
 
 Smith V. Lucas, 338. 
 
 Smith V. Mairin, 47.3, 715. 
 
 Smith V. Methodi-st Church, 18, 20. 
 
 Smith V. Olding, 235. 
 
 Smith V. ParkHido Mining Co., G9. 
 
 Smith V. Peter, 17. 
 
 Smith V. Richardson, 380, 385. 
 
 Smith V. Roe, 15!), 1(51, 709. 
 
 Smith V. Rowe, 7<>9. 
 
 Smith V. Seaton, 1()2. 
 
 Smith V. Smacksmen Ins. Co., 478. 
 
 Smith V. Smith 50, 81, 101, 221 (adda), 
 
 447, 082, 82i). 
 Smith V. Tett, 381. 
 Smith V. Thompson, 472. 
 Smitli V. Watts, re, 373. 
 Smith V. West, 429. 
 Smith V. Wiiichcord, .581. 
 Smith V. Whithiw, 338. 
 Smith V. Williamson, 900. 
 Smith V. Wills, 097. 
 Smith V. Wilson, 283. 
 Smith's Trusts, re, 119. 
 Smyth V. Levingc, 439. 
 Smytlie v. Sniythis 4<). 
 Snarr v. Hiulenaeli, 89, 102. 
 Sneed V. SiUM'd, 2. 
 Snider v. Snider, 51H, 931. 
 Sneizely v. Thorn, 200. 
 SnellinK v. I'lilliiig. 74, 892. 
 Snider v. Snider, W'l. 
 Snow V. Bolton, 717, 719, 720. 
 Snow V. Cole, 273, 274. 
 Snowdon v. Huntington, 691, 097, 935. 
 Societe .Vnonynie, ete. v. Tilj,diin:in, 50. 
 S(x)iete, etc. v. Dreyfus, 300, 301, 302. 
 Societe ludustriale, etc. v. Canipanhia 
 
 Portugue/.a, 3<l2. 
 Societies of Apothecaries v. Nottingham, 
 
 Solicitor, ri\ (7 P. H. 2(i3), 93l». 
 Solicit.)r, re, {25 C. L. .1. 023), 929. 
 Solicitor, n, (2 C. L. T. 100), 927. 
 Stilicitor, ri; (7 1'. R. 203), 930. 
 Solicitor, re, (9 C. T. T. 35), 921. 
 Solicitor, re. (0 C. L. T.), 9.32. 
 Solicitor, re (27 <lr. 77), 25H. 
 Solicitor, re (19 C. L. .F. 234), 2.59. 
 
 Solicitor, re (80 L. T. Jour. 103), 258. 
 
 Solicitor, re (W. N. 1889, 730), 510. 
 
 Solicitor, re (14 Ch. D. 152), 715. 
 
 Solicitor of the Treasury v. White, 539. 
 
 Solicitors, re (9 P. R. 90), 928. 
 
 Sole-, in V. Uitton, 0(i2. 
 
 Somers v. Livingstone, (>80. 
 
 Somers v. Martin, 911. 
 
 Somerset v. C(K)kson, 17. 
 
 Somerville v. .Toyce, 290. 
 
 Somerville v. McKay, 13. 
 
 Sonnenschein v. Barnard, 5i), 893. 
 
 Soper V. Arnold, 199, 202 
 
 Soules V. Soules, 518, 519. 
 
 South Essex Kq. liivestmsnt & Advance 
 
 Co., re, 470. 
 South of France Pottery Works Syndicatt?, 
 
 re, 42. 
 South Wales Mining Co. v. Davies, 047. 
 Soutliwark, etc. v. (^uick, 502, 503, 506, 
 
 50(i, .507, 508. 
 S(mtli«>'ll v. Scotter, 50. 
 .Sovereign v. Sovereign, 97, 101, 185, 760, 
 
 708. 
 Sowden v. Sowden, 400. 
 Spalir V. Beiir, 339. 
 Spatford v. 1)uelian:iu, 534. 
 Sparks v. Vounije, 743. 
 Sparrow v. Dianipagne, 222. 
 Sparrow v. Hill, S!l,">, !l,'{5. 
 .Spatidi v. Constiintinidi, 18(*. 
 SlM'iirs V. W;i(Mell, 53!i. 
 Speekhart v. (^iinpliill. 305. 
 Spedding V. Kitzpatriek. 438. 4.30,431. 
 Speers v. Daggers, OK, 120. 
 H|)eight, re, Speight v. (Jaunt, 105, Hill, 
 
 ()9.3. 
 .Speller v. Mrjstol, etc., 3li3. 
 Spence, /•«■, 15. 
 Spence V. Hector, 89, IMO. 
 Spencer, re, 249. 
 
 S|tencer v. Ancoats V. R. Cn., 547. 
 SiM'iicer v. Barougli, 559. 
 S|)«fnc<!r V. Hart, 125. 
 Spincer& McDonald, n, 3.35, 9.32. 
 Spiller v. Coghlan, 572. 
 Spiller v. Paris Skating liink Co., 649. 
 Spincer v. Walts, 570, 572. 
 .Spooner v. Payne, 718. 
 S|)ringer v. Clark.', 709, 894. 
 
TABLE OF CASES CITED. 
 
 kxix 
 
 Sproftt V. Vfcki'tt, 293. 
 
 Sproulc V. Ferrier, 430. 
 
 Spurr V. Hall, MH, fifiS. 
 
 St. Auliyn v. Siuart, : '. 
 
 St. Croix V. M. IjMiKtilin, 520 (wWrt). 
 
 St. Dfiiix V. iliixter, 89, ()C2 {aMa), 670 
 
 St. (it'orgt! V. St. (JeorRe, 48.3. 
 
 St..I()iin V. KvktTt, 2L>!t, 721 7.''." 
 
 St. .Uihw V. Central Vt-nnont Ky. Co, 698 
 
 St. L(mi.s V. OTallaghan, 277 (rt(W«), 482 
 
 (a>l<li'). 
 St. Miuha.-rs Collcpe "^'li'-jk, 051, 65,5. 
 St. Na/.airi'Co., re, 44V, (j-'''i. 
 St. Olaf, Till", 573. 
 Staw' V. (iafff, 32.5. 
 Staccy \-. Miilntyre, 0(>3. 
 Stacp(Hili' V. Waluli, 70.5. 
 Statfdrd \. Coxuii, 1!M». 
 Stalilsclni)i(U v. Walfoni, 573. 
 Stiiiiis V. Hanks, 2."!.'?. 
 Stiiintiiii v. Tlie Carn-n Co. 349. 
 Staimiicrs v. D'Donoiiot', 181, 194, 201, 
 
 20.5. 
 StJiin|HM' V. Millxnirnc, 8.3.5. 
 Staiuliinl 15ank v. Iloiiltoii, 3.37. 
 Standard Hiiiik v. |)nnhani, 041, 
 Stiuidard IJank v. Meti'.iaiff, 730. 
 Standard I'.ank v. W.dls 025, 020, O'll. 
 .Standard Hank v. Wills, 2H3, 018, 020. 
 Standard I )istric't ( '(». v. LatiraiiK"', 77. 
 Standard Ins. Cii. v. 1 Inches, 878,879. 
 SUndi^h V. Sliitd<ls, MO. 
 Slant,"!' LtMtl.'s V. Stan(j;er Leatiu's, 708. 
 Stanli(i|»', n; 749. 
 .Stanley v. Cnnuly, 108, 23.3. 
 Stanley v. Stanley, 740. 
 Stannard, tr, 15, i5.52, 785. 
 Stannard v. Vestry of .St. (iiles, .58. 
 Stanstield v. llolison. 320, 327. 
 Stunsfdrd v. Ilnrlstone, .5.5. 
 Staples V. YoiinK. lOO, 415, 805 
 Stapylton v. .Seott, 212. 
 Star Kidney I'ad Co. v. Green wood, .504. 
 Starr v. Maidstone, 893. 
 Starr I'.nwkett 1'.. S. v. Siburn, 194 {((ih!ii). 
 Staiiir.r V. Stauffer, 829. 
 Stark V. Kislier, 09", 937. 
 Stead V. Hanks, 235. 
 
 Steamship Staneinore, Limited v. Thomii- 
 
 8c n, 305. 
 Stedm vn v. Webb, 469. 
 Steedniun v. Hakim, 690, 692. 
 Steel V. Cobb, 377. 
 Steel V. Dickson, 324. 
 Steel V. Dixon, 3(>.3, 366, 367, 372. 
 Steel V. Lineberger, 330. 
 Steele, n, 715. 
 Steele V. Grossmith, 217. 
 Steele v. Stewart, 506. 
 Steele v. Yorl . 674. 
 Steers v. Cayley, 151. 
 Steers v. Shaw, 800. 
 Steinhoff v. Brown, 216, 323. 
 Stennett v. Aruyn, 384, 4(»9. 
 Stephens, re, Warhiirton v. Stephens, 762 
 
 {iidda). 
 St«'i)hens v. Dennie, 8.50. 
 Stephens v. DeMedina, 213. 
 Stephens v. Simpson, 223, 327. 
 Stephens v. Weston, 910. 
 Stei)henson v. Bain, 2<K), 20.5. 
 .Stephenson v. Niclxdls, 154. 
 Sterling', f'';)., 409. 
 Sterling v. Campbell, 152, 223. 225, 
 Sterling' v. Kiley, 225. 
 Steuari V. (Jladstone, .548. 
 Steven V, Hunter, 779. 
 Stevens v. Cook, 18, 102. 
 .Stevens V. Metro|i«ilitan lly., 74. 
 Stevens v. Miller, 842. 
 Stevens v. Pheiips, 744, 749. 
 Stevenstm v. Bain, 2<K), 205. 
 Sti'vei.son V. Clark, 17. 
 Stevenson v. Holder, 702. 
 Stevenson v. Williams, 400. 
 Steward v. Metropolitan Tramways Co. 
 
 448. 
 Stewart, re, Stewart v. Stewart, 77''. 
 Stewart v. Hank of Kn^land, 302. 
 Stewart v. Fletcher. 17,5, 170, 709, 771. 
 Stewart v. Hunter. 1.53. ,347, 700. 
 Stewart v. .loimstoiie, .584. 
 Stewart v. Hiehardsoii, ,59. 
 Stewart V. Ko\i!ids, t>4(). 
 Stewart v. Sullivan, 4.3, 107. 
 Stewartstown. etc. v. Daly, 027. 
 Stiff V. Cassell, 17. 
 Stigand v. Stigand, 300. 
 
 . -t 
 
Ixxx 
 
 TABLE OF CASES CITED. 
 
 I ■ I "' 
 
 Stillwell V. VVilkins. 217. 
 
 Stilson V. Ktiniiedy, 3tM). 
 
 Stimson v. Block, (id, (i(»8, 854. 
 
 Stimson v. Stimson, 2i)2. 
 
 Stinson v. Martin, ISS, !t43. 
 
 Stinson •.. Pcnimok, l!l, I'.Sl. 
 
 Stinsup V. Stinson, 174, 347. 
 
 Stirling v. Dubarry, (!!»1. 
 
 St. John V. Kykcrt, (is."?. 
 
 St. Niizaire Co., re, (KMi. 
 
 Stock V. Shewan, <)t»3. 
 
 Stockton Iron Co., n; 233. 
 
 Stoddard v. Sunldard, 178. 
 
 Stfxidart v. StiKldart, 701. 
 
 Stwldart V. Wilson, 7!tO. 
 
 Stoeser v. Springf^r, 853, 85!(. 
 
 Stokes V. City Offices, 2(;i. 
 
 St. Olaf, The, .573. 
 
 Stokes V, (irant, 44!t. 
 
 Stokes V. Knapp, XVX 
 
 Stone V. Sniitli, 4(K», (ill}, (Hit. 
 
 Stooke V. Taylor, 4(M), 40!l, 8!».'), 8'.h;, 807. 
 
 Storer, r,; 1()8'.». 
 
 Storer v. Hiiinnons, 751. 
 
 Storey v. Waddle, 578. 
 
 Stonu V. Cumberland, 1(}3, 104. 
 
 Story V. ])iml(i|), 0!M!. 
 
 Story V. '"'I'y, 331 . 
 
 Story V. .dcK;iy, 003. 
 
 Stovel V. Coles, 340, 503, 544. 
 
 Strachan v. l)evl,n, 3!»7. 
 
 Straohan v. Miiriiey, •11\. .3110. 
 
 Straight, i.f /mrti, 054. 
 
 Straker v. Keynolds, 545. 
 
 Strange v. Freeman, .Hui). 
 
 Strange v. Kadfurd, 387. 
 
 Strange v. Toronto Tel. ('«>., 877, 88.5. 
 
 Stratford v. Creat Westfrn Ry. Co., 1,8.5. 
 
 Stratford k lliinin Ky. Co. v. County of 
 
 I'erth, ,53, 54. 
 Strathy v. Crooks, 187. 
 Stratton v. Murphy, 170. 
 Street V. Crump, tiL'O. 
 Street v. Dolan, 32.3. 
 Street v. (iover, 408, 410. 
 Street V. Hallett, 102, 2(12, 2()(i. 
 Street v. O'Reilly, 2.30, 237. 
 Street v. Rugby, 13. 
 Street v. Union Bank of Si)ain and Kng- 
 
 lund, 55. 
 
 Strelley v. Pearson. .50, .57, 874. 
 
 Strickland v. Strickland, 4.52. 
 
 Strickland v. Symons, 7(i2. 
 
 Sti-ong, /v, 258, 250. 
 
 Strong V. Moore, 352, 3.53. 
 
 Stntther, /•'■, 031. 
 
 Strousberg v. Costa Rica, 208, 302. 
 
 Strutt, ri; 27. 
 
 St\iart, r>: 2.58, .524. 
 
 Stuart V. Balkes, 48(,. 
 
 Stuart V. (i rough, 220, 743, 744, 717, 74S, 
 
 740, 750, 753, 754. 
 Stuart V. McKini, 744. 
 Stubbs, rr, 570. 
 Stnbbs V. Boyle, 08. 
 Studderi v. Von Steiglit/., 042. 
 Stuebing, re, .\nthes v. Dewar, 008. 
 Stunun V. Uixon, itl4. 
 Stump V. liradliy, 310. 
 Sturgeon v. Hooker, 517. 
 Sturgis Motor i'ower Syndicate, n; 042, 
 
 043. 
 Sturla V. Frecoia, 58, 042. 
 Suckling V. (lal)!), .57(», 573. 
 Sutlield V. Watts, (il7, 050. 
 Sugden V. Loiil St. Leonards, 177, 701. 
 Sugg V. Mray. 511. 
 Sugg V. Sillier, 83. 
 Sullivan V. Harty, 10.5, 7(iO, 771. 
 Sullivan v. Riviuu'tctii, 101. 
 Sullivan v. Sullivan, 70(', 700. 
 Snnnners v. (y'lnik, 10. 
 Sunnners v. Kiugeoti'. .542. 
 Sunuuers v. .Morphew, 742. 
 Sununers v. Summers, 308, 704, 80.3. 
 Sutditfe, /r, 100. 
 Sutclitfe v. .l.-.mes, 442. 
 Suteliffe .V. Smith, 808. 
 Sutelitte V. Wood, 382. 
 Sutherland v. Oiekson, 012. 
 Sutherland v. Leys. 270. 
 Sutherland v. McDonald, 042. 
 Sutherland v. Rogers, 150, 178, .511. 
 S)itton, /v. 470, 01(». 
 SuttoTi V. Muggins, 570. 
 Sutt(m V. Sharpe, KiO. 
 Sutton V. Sutton, 104. 220, 380, 3.)4. 
 Sutton's Trust, re, 40, 50. 
 Swabe.y v, Dovey, .551. 
 Swain V. Follows, ;i33 (ndila), 944. 
 
 Swain v. SKxldart, 
 Swainson v. Bartle 
 Swallow V. Bimis, ; 
 Swan V. Adams, 50 
 Swan V. North Bri 
 
 8«1. 
 
 Swann v. Swann, 2' 
 Swansea, etc. v. I)'. 
 Swayne v. Follows, 
 Swayne v. Swayne, 
 Sweeney v. Sween* 
 Sweetnian v. (Josfi 
 [ailtla), 517 ('"/'/ 
 Sweetinan v. Morri- 
 Sweetnain v. Lemoi 
 Sweetnam v. Sweet i 
 Swetnani v. Swetna 
 Swift V. Minter, ;{88 
 Swift V. Xumi, 001. 
 .Swift V. Swift, 0.3. 
 Swinhiinie v. Carter 
 Swindell v. Birming 
 .Swindell v. liulkele,> 
 Swin-, /•'■, Mellor v 
 
 705, 770. 
 Swit/.er v. Laidman 
 Switzer v. .McMillan 
 Syers v. I'if'kersgill, 
 .Sykfs v. Urockvilli' i 
 Sykes v. Cauiida Pat 
 .8ykt's V. iSacerdoti, 
 Symington v. Symin 
 SyniHiids, ri , Pwtts v 
 Synionils v. City H;ti 
 Symiinils v. .Fenkius, 
 .Syiiiuiis, /•< , Luki' v 
 Sympson v. Prothcri 
 Synod v. l)e lihwpiii 
 
 Twm v. Xat. .StiHK 
 
 (110. 
 Tagart v. Marcus, 4(i 
 Tiillxit v. HolH'-Seot 
 Tall^it V. Mar.hli.'ld 
 Tallint V. Minn.tf, 2 
 Tallx.t V. Karl of |{ii 
 Tiiiien-d V. Delagoa 
 Tapp V. .Jones, 743, ', 
 Tanlrew v. Howell, ' 
 Tarn v. Commercial 
 
TABLE OF CASES CITED. 
 
 Ixxxi 
 
 Swain v. SKxUlart, 881. 88L>. 945. 
 
 SwainsfJii v. Bartley, ir)f». 
 
 Swallow V. Binns, 330, 341, 345. 
 
 Swan V. Adams, 'M2, !»44. 
 
 Swan V. North IJritiuli Aii»traliv«iaii Co., 
 
 m. 
 
 Swann v. Swaiiii, 27!(, 340. 
 
 Swansoiv, etc. v. D'.iiiean, 301, 3(i4, 3(i0,3()8, 
 
 Swayntf v. Follows, 3.'W {(iililfi). 
 
 Swayne v. Swayiif, 255. 
 
 Sweeney v. Sweciie'y, 74, 52(!. 
 
 .Sweetnian v. (Josfii'ld, 481 ((tilda), 482 
 
 (uiliiu), 517 {"<lifi(). 
 Sweetinan v. Morrison, 8H2, 944, 945. 
 Sweetnain v. Lemon, 750. 
 •Sweetnam v. Sweetiiani, 210. 
 Swetnain v. Swetnain, 349. 7<>5. 
 Swift V. Miiiter, ;W8. 
 Swift V. N'unn, (Mil. 
 Swift V. .Swift, f!3. 
 Swinlninie v. Carter, 943. 
 .Swindell v. HirniiiiKhiiiii .Syndicate, 75,77. 
 Swindell v. Bulkiley, .Vil. 
 Swire, n; Mellor v. Swire, 351, (548, ()5.5, 
 
 7(>5, 77(i. 
 Switzer v. Laidnian, 421 (mh/n). 
 Switzer v. .McMillan, 782, TSti. 
 
 .Syers V. I'ickei-s^rill, 5.S0. 
 
 Sykrs V. Ilroekville it Ottawa Ry.Co., 754. 
 Sykes V. Cauiwla Pacific I{y., <(43. 
 .•>ykes V. .Saoerdoti, 940. 
 SyiiiinjrtipM V. SyiiiinK'ton, ;{5. 
 Synioiids, n, B-.tts v. ISetts, 7(17. 
 Syii]oii(!> V. City Mank. 319, 437, 5()2. 
 Syuiunds v. .Fenkins, (!I4, 
 Synimis, n , Luke v. Tonkin, 1(15. 
 Sympwin v. I'rotliero, 471, 747. 
 Synod V. I)e liliiqiiieii', 5',l(i, (>57. 
 
 T-iCoii V. Xiit. Stiindiiicl fjanil, etc., Co., 
 
 (11 '.t. 
 TuKart v. Marcus, 4(M1. 113. 414. 
 TalUit V. II(.|H'-.Scott, 1(1, 59. 
 ■Jallxit V. Mar-hfield. .507. 
 Tulliiit V. Minii.-tt, 212. 
 TiilU.t V. Karl of liiuliior, 349. 
 Tuiicied V. D.-lak'na I'.ay lly., 49, 72. 
 Tapii V. .FoneM, 743, 747, 749, 7M. 
 Taiilrew V. llowt-ll, 7(1(1. 
 Tarn v. Commercial banking Co., 350. 
 
 Tarn v. Tumor, 223. 
 
 Tasmanian Ry. Co. v. Clark, .588. 
 
 Tate V. Corp. of Toronto, 745, 750. 
 
 Tate V. (ilolKS .538. 
 
 Tathani v. Parker, 717. 
 
 Tattersall v. National Ste.iniwlii|> Co., 532. 
 
 588. 
 Tawell V. Slate Co., 383. 
 'i'aylor, rr, (55, 531. 
 
 Taylor, /v, Ttjmli'i v. I'ndcrhay, .531. 
 Taylor v. Batten, i/«K5, .508. 
 Taylor v. Blakelock, 49, 428. 
 Taylor v. Bra<Iford, 581. 
 Taylor v. CainpViell, Postm. CJen., .531. 
 Taylor v. (.'aven, (54(5, (593. 
 Taylor v. Collier & Co., 312, 344. 
 Taylor v. Cook, (544. 
 Taylor v. CutliLx-rt, 391. 
 Taylor v. Eckersley, (50, (51. 217, 220, 872. 
 Taylor v. Jones, 47(1, 477, (191, (192. 
 Taylor v. (Talliigher, 749 yuldn). 
 Taylor v. (Jrant, 583. 
 Taylor v. Hargrave, 1(17, 228. 
 Taylor v. Magratli, 231. 
 Taylor v. Nicholls, (123. 
 Taylor v. Oliver, .508, .509. 
 Taylor v. Pedo. .37(1. 
 Taylor v. Phillips, 2>9. 
 Taylor v. Sherley, 707. 
 Taylor v. Sisters of (Ottawa, .521, (592. 
 Taylor v. Stead, 223. 
 Taylor v. Taylor. ',i.\ XXi, 340, 518. 
 Taylor v. Walker, W.K 
 Taylor v. Ward, 221. 
 Taylin'V Cane, re, Ambrose Lake Tin an<l 
 
 Copi)er Co., 81. 
 Te.asdale v. Sanderson, 1(19. 
 TeWis V. Carpenter, 1.59, 7(19. 
 Tel)l)s V. Lewis, 371, 372. 
 Tedford V. Tedford, 281. 
 Teeter v. St. .Fohn, 172, 189, 227, 22S, .321, 
 
 38(1. 
 Teevan v. Smith, 240. 
 Teil V. Barlow, (14S. 
 TelL'tt V. Lalor, 942. 
 Temp. Col. V. Kvans, 8fi, .548, .586. 
 Tempest v. Ciimoys, 347. 
 TemiM'st \. Ord, 170. 
 Temple Bar, The, 83. 
 TempU'uian. i>, MW>. 
 
mr 
 
 Ixxxii 
 
 TABLE OF CASES CITED. 
 
 11 
 
 Tennant v. Kllis, 8!)]. 
 
 Tennant v. Maiiliard, (i42, 712. 
 
 Tennant v. Trciieliard, lit?, 640. 
 
 Terrell, n; T."). 
 
 Terry v. Coiii«t()ck, 831. 
 
 Terry v. White, n; 205. 
 
 Tetley v. Eastoii, 403. 
 
 Tetley v. (;riffiths,337, lil'.t. 
 
 Tharj), re, 45. 
 
 Tharsis Sulphur, etc., Soc. v. Societe 
 Industrielle, 302 {aiiita). 
 
 Thayer v. Street, 213. 
 
 Theodore Konier, The, 5(M>. 
 
 Third Natiimal Bank v. (.^ueeii City Refin- 
 ing C(>nii»any, 220. 
 
 Thoman v. brown, lO'.t, 202. 
 
 Thoniaw V. Buxton, 205, 
 
 Thoina.s v. Cotton, 723. 
 
 Thomas v. Cro.ss, 25."). 
 
 Tiionias V. Exeter Flying Post, 8" (adda), 
 502, .5!)i). 
 
 Thomas v. Einlayson, 4(>8. 
 
 Thomas V. Hamilton, 302, 304. 
 
 Thomas v. Mi.Crae, 200. 
 
 Thomas V. I'alin. 107, 402,713, 710. 
 
 Thoma-s v. Peart:e, 2S0. 
 
 Thomas v. Rawlings, .")07. 
 
 Thomas V. Secretary of State for India, 50(5. 
 
 Thimias v. Storey, 177, 517, .540, 540. 
 
 Thomas V. Tim- (.iueen, 400. 
 
 Thomas v. Torrance, 220, .32(>. 
 
 Thomas V. Willianis, .5.5. 
 
 Tiiompson, /v, 400, -X" '139. 
 
 Tiionipson, (•>', St"phinsoii v. Fhomp.son, 
 330, 340. 
 
 Thompson, re, Biggar v. Dickson, 203. 
 
 Thompson v. liadifcl.'v, 3.S7. 
 
 Thompson v. Bennett (i0.'{, 
 
 Thompson v. Birkl.> , \M. 
 
 Thompson v. Dodd, .'^20. 
 
 Thoni|isi)n v. Eastwood, 47. 
 
 Thompson v. Fairh.iiin, 14!), 175, 585, 70.5. 
 
 Tiiompson V. Fictnnan, 1 1.5, 174. 
 
 Tlumipson \. Mall, (1(13. 
 
 Thompson v. Hudson, 10.3,230. 
 
 Thomi>son v. Tiuke, ISS. 
 
 Thomps.m v. Maoauley, 387, .3.h0. 
 
 Thompson V. McCaffrey, 7M2. 
 
 Thompson \. Mar>liall, 025, 020, 030. 
 
 Thompson v. Milik.n, 107, 211. 
 
 Thompson v. Pheiiey, 280. 
 
 Thompson v. Robinson, 100, 240. 
 
 Thompson v. Sewe'l, 0()3. 
 
 Thompson v. Thon pson, 518, 520, 907. 
 
 Thompson v. Tomkinson, 314. 
 
 Thompson v. Torrance, 20, 30. 
 
 Thomi)8on v. Ward, 878. 
 
 Thompson v. Wriglit, 882. 
 
 Thomson v. (Jye, 539 (adila). 
 
 Tiunnson v. Lnke, 003, 
 
 Thomson v. Pheney, 289. 
 
 Thomson v. Robinson, 077. 
 
 Thomsim v. U.S. Eastern Ry. Co., 44, .580. 
 
 Thomson v. Victoria Mntnal Co., 340. 
 
 Thornburn v. Brown, 485 (adda). 
 
 Thorley's Cattle Fo<k1 Co. v. Massam, 54, .57. 
 
 Tiiorn V. Commissioners of Works, 17. 
 
 Thorn v. Smith, 200. 
 
 Thorndyke v. Hunt, 258. 
 
 Thome v. Chute, 28, 214. 
 
 Thorne v. Seel, 020, 0.30. 
 
 Thorne v. Williams, 38. 
 
 Thorncycroft v. Crockett, 10.3. 
 
 Thornloe v. .Skomes, S72. 
 
 Thorntcm v. Ca))stock. 432. 
 
 Thornton v. Clnuch, 4,30. 
 
 Thorp, I'a- p., 445. 
 
 Thorpe v. Freer, 213. 
 
 Thorpe v. Holdsworth, 4.3(5, 042, 044. 
 
 Threlfall v. Wilson, 330. 
 
 Thurg(KKl, /v, 031, 034. 
 
 Thurlow V. Beck, S3, 84, 85. 
 
 Thwaites v. (}allinger. .S42. 
 
 Thynne v. St. Manr, 333. 
 
 Tice V. Myers, 323. 
 
 Tiel, n. (i54, 
 
 Tiffany v. liulltn, 741. 
 
 Tiffany v. Thompson, 340, 700. 
 
 Tiffany v. Tiffany. .3.50, 7(.(J. 
 
 Tilbury v. Brown, 750. 
 
 Tildesiey v. Hariitr, 3(11, 430, 4 Hi, 402, CI:'. 
 
 Till V. 'nil, 71, 170, 337, 530. 
 
 Tillett, re, Field v. Lydall, 774. 
 
 Tillett V. Nixon, 50. 
 
 Tillett V. Pearson, 21.1. 
 
 Tilley V. Th(nnas, 51. 
 
 Tilney v. Stansfield, 71-5. 
 
 Tilt V. Knapp, 100, 202. 
 
 Tilton V. McKay, 8H. 
 
 Timins or Timms, o , .580. 
 
TABLE OF CASES CITED. 
 
 Ixxxiii 
 
 Tiras, re, 702. 
 
 Timson v. Wilson, 83. 
 
 Tinning v. (J. T. Ry. B8«. 
 
 TitUH. re, 2'tH. 
 
 Tobin, rr, 328. 
 
 Tobin, ir, Cook v. Tobin, 330. 
 
 Tobin, re, Tol)in v. Tobin, 145. 
 
 Totld V. Stiidholme, 180. 
 
 Toft V. Sti'vensoii, 203. 
 
 Toke V. AiuirowH, 408, 40!t, 417, 45.5. 
 
 Tolson V. Jerviw, 047. 
 
 ToinkiiiHon v. H. E. Ry. Co., 44!). 
 
 Tomlin v. Lun^^ 220 (adda). 
 
 Tomline v. Tlie l^iieen, 4!)7. 
 
 Tumltuson v. Land & Finance, !)45. 
 
 Tomlinson v. Northern, Ry., 74, 3()t>, 372. 
 
 8!»!>, !)0«. 
 Tominey v. Wliite, 057. 
 Tompkins v. Holmes, 250. 
 Toms, r>; 145, 258, i»31. 
 Tonsli-y V. JIcpiHT, 5!)0. 
 T(»ini'y V. Triu;y, 102. 
 Tuppintf V. .[(iscph, 7!l. 
 Topping' V. Si'iirson, 408, 40!l. 
 Tiinmto V. Toronto Street Rv. Co., 071, 
 
 (i73. 
 Toronto Brewing & Malting Co. v. Ulake, 
 
 50. 
 Toronto (! ravel Road v. Taylor, 508. 
 Toronto Harljour Connnissioncrs, ;■'■, 174. 
 T Tiiito Navigation Co. v. Silcox, ^4, 35,5, 
 
 ■■m. 
 
 Toronto Savings Hank v. Can.-ula Life Ass. 
 
 Co., 102, ;;28. 32! », 330. 
 Turranw v. Cliewett. 174. 
 Torrance v. Kolden, 833. 
 Tonancc ■.. Livingstone, 408. 
 TiimiMci' V. .-Suiitli, 20. 
 Torrance v. Torrance, 188, 021, 1072, 1083. 
 Tottfii, ,r, 031, 100!l. 
 Tottili V. Kletclier, .^47. 
 Tcitten V. Mclntyre, 1!»l(, 404. 
 Tott.u V. \V»ts4.n, 22!t. 
 Tott.iiliaiii V. Barry, 200, 3(HI, 305. 
 T'ltfuliam L. B. v. Lea C. li. 447. 
 Ttwlc • . Tuphani, 440. 
 Townend v. Itiinter, 177, 550. 
 Townley v. .Tones, 5!)0. 
 Tdwnsend v. Townst<iul, .351, 770. 
 Townsley v. Noil, 100, 782, 780. 
 
 Towse V. Loveridge, 30(>. 
 
 Towsley v. Wythes, 8!>. 
 
 Tozer V. Walford, i58, 872. 
 
 To/.ier v. Hawkins, 305. 
 
 Tp. of MonU.on & Haldiniand, if, 54. 
 
 Triwlers liank v. Kean, 544. 
 
 Traill v. I'orter, 274, 275, 300. 
 
 Train v. Smith, 77!». 
 
 Travers v. (iustin, 347. 
 
 Travis v. Bell, 4!i7. 
 
 Treherne v. ])ale, 713, 714. 
 
 Treleven v. Bray, 41, 303, .308, 407, 40H. 
 
 Trench, re, e.n parte Brandon, !(43. 
 
 Trench v. Mulcahy, 028, 032. 
 
 Trevelyan v. Charter, 108, 054. 
 
 Trevelyan v. White, 1()!(. 
 
 Trevena v. Watts, 412. 
 
 Trice v. Robinson, 07, 325, 340, 350, 701. 
 
 Trimble v. Hill, KM. 
 
 Trinacria v. Richardson, 412. 
 
 Trinity College v. Hill. 3!)2, 3!»3, 605, 725. 
 
 Tritton v. Bankart. 320, VV.\, 300, 370. 
 
 Trotter v. McLean, 8!»5, 022. 
 
 Troutnian v. Fisken, 735, 740. 
 
 Trowell V. Shenton, "7. 
 
 Truax v. Dixon, 025. ,S(I4 and 001 (ndda). 
 
 Tnide v. I'lio'nix Ins. Co., OOC). 
 
 Tvuelock V. RolK-y, 158, 108, 232. 
 
 Tniford, -<■, Tr;itford v. Blanc, 87, 44C. 
 
 Tnnnan v. Keilgvave, .5!). 
 
 Trunnwur v. Saylor, .35. 
 
 Trnslove v. Whitecimrch. 1:85. 
 
 Trust &, Loan Co. of Caniula v. Boulton, 
 
 007 
 Trust & Loan C... v. Cutlil)ert, 222, 227, 
 
 228, 234. 
 Trust & Loan (^o. v. Dickson, 134. 
 Trust it lioau ('(1. V. (lorslinc, (>1. 747. 
 Trust & L()an(^). v. Hill, 043, (i44. 
 Trust ii. Loan Co. v. Kir<l, 22!l, 3!>5. 
 Trust it Loan Co. v. Mi'Cartliy, (114. (=15. 
 Trust k Loan Co. v. Monk, 211. 
 Trust & Loan Co. v. Osborne, .382. 
 Trust & Lo.aii Co. v. Reylioids, ;W7, 3S8. 
 Trust & L.ian Co. '■, Start, 203, .383. 
 Trustees -Vgency v. Short, 8(M». 
 Trustees of Birke:i!iead Docks v. liaird. .30. 
 Tryon v. National Prov. Insts, ;W>0, 401. 
 Tuck V. Southern Couiitie.s, etc., Bank, .5!)S. 
 Tucker v. Collinson, 43. 
 
 
 --^^Sh 
 
Ixxxiv 
 
 TABLE OF CASES CITED. 
 
 Tudlmll V. Mcdlicott, IWJ. 
 
 Tudor V. AiiHoii, 12. 
 
 Tudor V. Morris, 327. 
 
 Tticker v. MuMalion, 701. 
 
 Tufdiwll V. Nicliolls, 2.T.. 
 
 TupiHT, rxiKirtc, 7!*. 
 
 Turley V. Evans, 203. 
 
 Turley v. M.-yc-rs, 71!*. 
 
 Turiihull V. Koriiiiiii, XW, :«!). 
 
 Turiil)ull V. .Tanson, (>!I7, !W(>. 
 
 Tunihull V. Rolx'rtson, 7r)(). 
 
 TuriibuU V. .Syinnionds, 321, 3.S(5. 
 
 Tumor, (jr parte, 743, 744. 
 
 Turner v. IJridgutt, 74. 
 
 Turner v. liuck, 773. 
 
 Turner v. Burkonsliaw, 102, .50(!. 
 
 Turner v. Hancock, S!»!). 
 
 Turner v. Hcdiicsford (iiw Co., 407, 40H. 
 
 Tucner v. Heyland, H!IS. 
 
 Tuner v. llodjjson, 054. 
 
 Turner v. Jones, 747, 750, 754. 
 
 Turner v. Kyle, 2H4, 487, :m. 
 
 Turner v. Lucas, 023. 
 
 Turner v. Morgan, 107. 
 
 Turner v. Moy,17. 
 
 Turner v. Neill. 025. 
 
 Turner v. Wright, 10. 
 
 Turner & Skelton, n; 201, 20(J. 
 
 Turner k, Tlionuis /v, I'J'J. 
 
 Turney v. Hayley, 513. 
 
 Turquand v. Fearon, 300, 43'.», 401, 405. 
 
 Tuniuand v. Wilson, 52H, ii»4. 
 
 Tui-rill V. Turrill, 25, 201, 201). 
 
 Tutlier V. Canilanipi, 2S2. 
 
 Twidale. re, 702. 
 
 Twinbarrow v. Braid, .350. 
 
 Twycross v. (li-aiit, 4'.I2, .MIO, .5(13. 
 
 Tylee V. Ilinton, .31(5, 3!)0. 
 
 Tylee v. Tyle.', 218. 
 
 Tyler v. Bell, 425. 
 
 Tyler v. Tiioiuas, 221. 
 
 Tyler v. Wel)b, SO. 
 
 Tyno Alkali Co. v. Lawsoii, 808. 
 
 Tynn, re, 15. 
 
 Tynn v. Billingsly, 550. 
 
 Tyrwhitt v. Tyrwliitt, 4S. 
 
 Tyson v. M'lyor of liondon, 8(51. 
 
 Tyson v. McLean, 833. 
 
 Udy V. Stewart, .500 (adda), tm. 
 
 Uufierhay v. Rearl, 370, 
 
 Underw<Hxl, re, 215. 
 
 Union Bank v. Ingrain, 172, 233. 
 
 Union Bank v. Munster, 108, 
 
 Union Bank v. Starrs, 40.5. 
 
 Union Bank of London v. Lyman, 420. 
 
 Union Bank of London v. Manby, 40". 
 
 Union Cement & B. Co., re, ex jmrtr v. 
 
 I'ulbrook, 400. 
 Union Klectrical Co. v. Electrical Storage 
 
 Co., 432. 
 ITnion Insurance Company, re, 074. 
 Union Loan Co. v. Boomi-r, 00, 00. 
 Union Loan Co. v. Lyman, 420. 
 United Eng. & Scot. Ins. Co., re, 744. 
 United Telephonti Co. v. Bassano, 5(>1, 044. 
 United Telephone Co. v. Dale, .50. 
 United Telephone Co. v. DonoliiH', (543. 
 United Telephone ( 'o. v. Tasker, 270, 4(H). 
 Upnuinii V. Eortwter. 803. 
 U. S. America v. Wagner, 408. 
 Usher V. Martin, 870 (((f/f/(() 
 Usit V. Wcdpton, 83. 
 
 Val de Travers Asphalt ravingConipany v. 
 
 London Tramway f'onipany, 4(i1. 
 Vale V. Oppert, 43, .505. 
 Vallance v. Birniiiigiiiiin it Midland, etc., 
 
 Ry.. 354, .35(1, 301. 
 Vanderwaters v. Uortoii, 804. 
 Van'lnsen v. .rolm-ion, 420. 
 Vanduiiii v. .Malcolm, 424. 
 Van Kverv v. Drake, (1(13. 
 Van FiVery v. Ross, 878. 
 Vane V. Barnard, HI. 
 Vane v. Vaiie, 421. 
 Van Natter v. Bulfal.i.t Lake Hiir..iil!y, 
 
 Co., 443, 444. 
 Vannato v. Mitchell, 347, 500. 
 Van Norman v, Beaiipre, 20(1. 
 Vanst.iden v. Vaii^^aden, .55(1, 8S('. 
 Vanston v. Thompson, Kll. 
 Van V.'lsor v. lluglison. (i78, S )o. 
 Van Wagner v. Findlay, 231. 
 Van Winkle v. Chapliii, olO. 
 Vanzaiit v. Burke, 2(»2. 
 Vardons Trusts, re, 010. 
 Vardon v. Varilnii, 334. 
 Vars V. (Jould, 044. 
 Vaughan v. Hallidsy, 70. 
 
 Vavftsseur v. Krupp, .' 
 Veiil V. Veal, 2150. 
 Veiile V. Autonuitio B< 
 Veiteli V. Irwin, 047. 
 Velati & Co. V. IJrahai 
 Vennilyea v, (iuthrie, 
 Veriiiinck v. Edwards, 
 Veniey v. Thomas, ;W( 
 Vernon v. Croft, 255. 
 Vemim v. Kiiizie. 21.5. 
 Verral v. Hanly, .525. 
 Verratt v. Me.\ul(>y, 4 
 V'etter v. Cowan. 270. 
 Vilwrt V. Cole, (17 {odd 
 Vicary v. ( Jreat Northe 
 Vickers v. Bell, 347. 
 Victoria Mutinil Ins. O 
 Vigar V. Dudman, 531. 
 Villajfe of Fort Erie v 
 
 m> (nddii). 
 Villeiieuve v. Wait, 28.^: 
 Vimlen V. Pollock, 788. 
 Viney, ex parte, 470. 
 Viney v. Chaplin, 0.51. 
 Viney v. Chapman, Oi5.5, 
 Vint V. Hudspith, 501, i 
 Viscoinit Harrington v. 
 Viscoimt (Jort v. Rownt 
 Vivar, The, 303. 
 Vivian v. Little, .505. 
 Vivian v. Mitchell, 177, 
 Vivian v. Westbrooke, 34 
 Vninet V. Barrett, 87. 
 Vnrley v. Richardson, 2 
 Vyse v. Brown, 742, 743, 
 Vyse V. Foster, 150, .505, 
 
 W. A. Seholten, The, 27; 
 W— , re, (13. 
 Wacldell V. Blockley, (HI 
 HVldell V. McColl," 100, 
 
 3112, 004. 
 Wadd,.}] V. Robertson, Oi 
 \Va(i(lil| V. Hmyth, 185, 
 Wiwl.lilove V. Taylor, 2:a 
 ^Vaddfll V. Mc(iinty, 34- 
 Wade, re 700. 
 W.vle, re. Dee v. Wade, 
 W'adecr v. East India Cc 
 
TABLE OF CASES CITED. 
 
 Ixxxv 
 
 Vavfti8('nr v. Krupp, 57, :i(Mt, 40i», 573. 
 
 Veit! V. V.'ul, 250. 
 
 Veale v. Aiitoiimtic UoiliT Fj-t'dtrCo., 47iK 
 
 Veitcli V. Irwin, !»I7. 
 
 Vfhiti .V Co. V. Hraliiim & Co., 57, «73. 
 
 Veriiiilyt'ii V. (Jutlirit", S4, M(». 
 
 VfruiiiiL'k V. KdwimlN, 513. 
 
 Vemey v. Thomas, ;W(», 415, 41fi,(»2(>. 
 
 Vernon v. Croft, 255. 
 
 Vermin v. Kiii/.ic. 215. 
 
 Verriil v. Hivnly, 525. 
 
 Verratt v. Mc.\iili<y, 434. 
 
 VetUr V. Cowan. 270. 
 
 Vilmrt V. Cole, (17 ((idda). 
 
 Vicary v. ( Jn-at Northern Ry. Co., 8!)2, 8f»». 
 
 Vickers v. Bell, 347. 
 
 Victdria Mutual Ins. Co. v. IVthunc, 754. 
 
 Vigar V. Diulman, 531. 
 
 Villaxt' of Fort F.rie v. Fort Erie Ferry, 
 
 im (ndda). 
 Villeneuve v. Wait, 283 (luidit), «2(i. 
 Vimlen V. Pollock, 788. 
 Viney, ex parte, 47(». 
 Viney v. Chaplin, (Wl. 
 Viney v. Chapman, (>55. 
 Vint V. Hn(isi>itli, .5()l, tifW. 
 Viscount Harrinjfton v. Liddell, .5.31. 
 Viscount (Jort v. Howney, 318, {MX). 
 Vivar, The, .303. 
 Vivian v. Little, ."SOS. 
 Vivian v. Mitcliell, 177, 5,50. 
 Vivian v. \Ve.st»)rooke, 348, 7<)1, 7(>3, 708, 7(i!». 
 Vninet v. Barrett, 87. 
 Vorlcy V. Kicliai-dKon, 28. 
 Vyse V. liruwn, 742, 743, 74(). 
 Vyse V. Foster, 15!l, 505. 
 
 W. A. Suliolten, The, 273. 
 
 W , re, (13. 
 
 Wadd.ll V. Bhickley, (141. 
 
 Waddfll V. MoColl, 10(1, 18.5, 228, 232, 23(5, 
 
 olt2, (li)4. 
 Waddcll V. KolxTtson, (187. 
 \Vaf|(l<'ll V. Smyth, 18.5, 1H<). 
 Wiul,lil„v,, V. Taylor, 2.-)0, 472. 
 ^V;mM,.11 v. Mc(iinty, .344,354, .544. 
 Wade, rr 7(1! I. 
 
 Witfl,., ,y, I J,.,. V. Wade, .3,50. 
 Wadoer v. East Ii\dia Co., 502. 
 
 I Wadsworth, re, RluKles v. SuK'den, 471. 
 ' Wadswortli v. I ell. 723. 
 
 Wadswortli v. .M(;|)oUKall, 14. 
 I Wa^horn v. IlawkinH, 32, 502. 
 J Wajfner v. .lett'erson, .33!t. 
 I Warner v. Maxon, 4!l!(, .5(15. 
 ! Wa^'Htatf V. .lacolM»wit/., (128, 032. 
 1 Wagstaffe v. Anderson, .500. 
 
 Wahll)erg v. Younif, 410. 
 
 Waite V. Binjfley, 778 (mlild). 
 
 Wake \. Parker, 334, 335. 
 
 Wakefield v. Bruce, .s40. 
 
 Wakelee v. iMviH, 43.5. 
 
 Walcott V. Lyons, 100, 357, .3,58, 401. 
 
 Waldron v. McWalter, 042, 044. 
 
 Walford v. Walford, 072. 
 
 Walker, re, 145, 031, 032. 
 
 Walker v. Balfour, :«)5. 
 
 W.ilker V. Bana)jrher Distillery Co., 42. 
 
 Walker V. Blackinore, 501. 
 
 Walder v. Bradford, 40. 
 
 Walker v. Hudden, 78. 
 
 Walkea v. Bunkell, 07, 08, 100. 
 
 Walker v. Clarke, 5(i. 
 
 Walker v. Fairfield, 723. 
 
 Walker v. Hicks, 282. 
 
 Walker v. Matthews, 3S3. 
 
 Walker v. Niles, 404, 057, 877,882, 04.5. 
 
 Walker v. Poole, 508. 
 
 Walker v. Rooke.740. 
 
 Walker v. .Selijfmann. 1.52, .340, 352,778. 
 
 Walk.r V. Terry, 580. 
 
 Walker v. Walker, 518. 
 
 Walker v. Ware H. & H. Ry. Co., 387. 
 
 Walker v. Willsher, 807, 8!l)t. 
 
 Walker v. Wixtdward, 100. 
 
 Wall, re, 27, 783, 784. 
 
 Wall V. Brockley, 02.3. 
 
 Wallace V. Cowan, 27(», 580, 854. 
 
 Wallace v. Ford, 577. 
 
 Wallace v. ({rahaiii, 402, 713. 
 
 Wallace v. Hutchinson, 3.'W. 
 
 W.illace V. Moore, 28(1. 
 
 Walll)ridgo v. Martin. 1.52, 221, 502. 
 
 Walll)ridge v. Trust & Loan Co. , 044. 
 
 Wallcott V. Lyons, .3.58. 
 
 Waller v. Claris, Oil. 
 
 Wallinpford v. Mutual Soc. , 75, 430, 437, 
 025,020, 03(», 031,001. 
 
 Wallis V. .Jackson, 042. 
 
W" 
 
 Ixxxvi 
 
 TABLE OF 0ABE8 CITED. 
 
 Waiiis V. N<!wt()ii, r»:w. 
 
 Wivllis V. Siiiitli, Hd"). 
 
 Willis V. Wallis, MS, 7<i3, 708. 
 
 WiiliiiHlcy V. Hull, Itl'i, 170, 1W>. 
 
 WultiiHlcy V. (iriffitli, !l4r». 
 
 WiiliiiMl..y V. Mitchell, H!(8. 
 
 Waliiislfy V. Miniily, 107. 
 
 Walsli V. Mn.wn, Hi. 
 
 Walsh V. lioui-k.'. l.-.O, 224. 
 
 Walsh V. Lunsdalf, 07. 
 
 Walter V. .lames, VM), 
 
 Walt. Ill, n, 4(10. 
 
 Walton V. Armstnint?, 2(»M. 
 
 Walton V. P.ernai'l, lOS. 
 
 Walton V. (!l-.an.ller, 02.S. 
 
 Walton V. Ilay,var(l, t;i';<. 
 
 Walton V. Henry, ■)(■> ((((/(/((). 
 
 Walton V. Thuinp.soii, 'M)H. 
 
 Walton V. Wideinan, 4(H», M-i. 
 
 Walton V. Woodstock, H(KI. 
 
 Wanklyn v. Wilson, 04;"). 
 
 Wansley v. Sinalhvood, 7-, 040, (iOi). 
 
 WarlnirK, '"''. ''•'/'., Wiialley, 2i)l. 
 
 Warlnirton v. Edge, 409. 
 
 Ward, re, !t21t. 
 
 Wanl V. BiKith, 918. 
 
 Ward V. Carttar, 107. 
 
 Ward V. Hall, 97, !«». 
 
 Ward V, Hughes, 5<). 
 
 Wai-d V. Jackson, .592, ,593. 
 
 Ward V. Lawson, IWU* [ndda). 
 
 Ward V. Lowndes, 861. 
 
 Ward V. Pilley, 99. 
 
 Ward V. Vance, 740, 750. 
 
 Ward V. Ward, .'>70. 
 
 Warden v. Trenouth, '202, 205, 207, 
 
 917. 
 Warder v. Saunders, .^OO, 561. 
 Wardrfipe v. Canadian Pacific Ry. 
 
 74!». 
 Waring v. L;icey, (!38. 
 Waring v. Peamian, 409, 895, 896. 
 Wark V. Moulton, 144,523, 791. 
 Warley v. I'rapst, 287. 
 Warinan v. Zeal, 0."i4. 
 Warne v. Dell, 578. 
 Warner v. Davii's, 042. 
 Warner v. Mosses, 445, 536, 5.18, 539, 
 
 ■")50, 922. 
 Warner v. Twining, 3 J3, 407. 
 
 472, 
 
 Co., 
 
 540, 
 
 Waniock v 
 Warnock v 
 
 Klm-pfer, 790. 
 Prieur, :<77, 012, 614. 
 
 Warren v. Taylor, 225. 
 
 Warwick v. Kast, 43. 
 
 Washington, re, 9.'13. 
 
 Wason V. Car|«'iiter, 10. 
 
 Waterliollse v. Lee, 29. 
 
 Watei'lioiiKc V, Worsnop, ,174. 
 
 WaterlcHi Mutual, ete. v. Koliinson, 43,"). 
 
 Wateioiis V. Karran, 14.5, .521. 
 
 Waters, /v, Waters v. Hoxer, 773. 
 
 Waters v. Karl of Sliaft(«l)ury, 502, .503 
 
 Waters v. Shade, .590. 
 
 Wartnahy v. ^\'artnally, .374. 
 
 NN'atkin v. Newccnieii, 413. 
 
 Watkiiis, ,v, (10. 
 
 Watkins V. .MeKellar, 227. 
 
 Watkiiis V. Newconien, 41.3. 
 
 Watii.y V. Wells, 102. 
 
 Watson, >•., 11, 173, 471. 
 
 Watson V. Hnidsliaw, 701. 
 
 WatHon V. Brewer, 31.5. 
 
 Wa.son V. Cave, 79, .341,300, 084. 
 
 Watsoii V. Ham, 544, 501. 
 
 Watson V. Hawkins, 411, 419, 421, 42.3. 429, 
 
 4.30, 437. 
 Watson V. Henderson, 149. 
 Watson V. Holliday, 561. 
 Watson V. Lyon, 470. 
 Watson V, Maskell, 916. 
 Watson V. MtKire, 694. 
 Watson V. McDonald, 551. 
 Watson V. Rodwell, 28, 75, 429, 450, 569. 
 Watson V. Severn, 761. 
 Watson V. Watson, 12. 
 Watt V. Barnett, 290, 292, 606, 664. 
 Watt V. liullas, 12. 
 Watt V. Clark, 6.56. 
 Watt V. Parker, 213. 
 Watt V. Watt, 12. 
 Watts, re, Smith v. Watts, 373. 
 Watts V. Hobson, 144, 523, 791, 792. 
 Watts V. Synies, 220. 
 Waugh, re, 335. 
 Weale v. Rice, 181. 
 Weatherhead v. Weatherhead, 294. 
 Weaver v. Vandusen, 167, 227, 228. 
 Weaver v. Sawyer, 898. 
 Webl) V. Byng, 39. 
 Webb v. Commissioner of Heme Bay, 801. 
 
 Le III 
 
 Leys, 
 Patter 
 Taylor 
 Wei. St 
 Whew 
 
 Weill) V. East, 49.' 
 Wehl) V. Kerr, 41 
 Weill) V. Mc.\rtlu 
 Welih V. Steiitoii, 
 Weill) V. Welili, 3( 
 Wehlier, If. 745. 
 Wcblier V. Hunt 
 Wehlier V, WedKt 
 Wclwter, '■'■ /'"'■'' 
 Webster V, .Armst 
 Wilister V. Hriti 
 W'lister V. foal ( 
 Weiister V. Fried 
 Webster V 
 Webster Y 
 Webster y 
 Webster \ 
 Webster V 
 Webster v 
 Wecldei-buni V. W 
 Weed V. Wanl, 97 
 Weeks V. Stourtoi 
 Weir V. Barnett, 1 
 Weir V. Matlieson 
 Weiss V. Crafts, 21 
 Welch V. O'lirien, 
 Weldon v. 1 )e Bat 
 Weidon V. Neal, 3; 
 Weldon v. Temple 
 Weldon v. Winsloi 
 WelUiank v. Congt 
 Weller v. Proctor, 
 Wellesley v. Beau I 
 Wellesley v. Morn 
 Wells V. Kili)in, 21 
 Wells V. Lindop, '' 
 Wells V. Tnist & I 
 Welpy V. Buhl, 48: 
 Welsh Steam, etc., 
 Wcnlock V. River 
 Werderiiian v. Soc 
 
 355, 420. 
 Wesson v. Stalker, 
 West. re. West v. 
 West V, Downnian 
 West v. West, 724. 
 Westbrooke v. Bro 
 West Devon Coal ] 
 West I [uron Electi 
 West London Dair 
 
TABLE OF OASES CITED. 
 
 Ixxxvii 
 
 Wclistcr \ 
 
 Wilistcr \ 
 
 Wel)l. V. KiiHt, 403, 50", 504, f)()!». 
 
 WeW) V. K.rr, 41. H, 42'). 
 
 Webl) V. ^fcArtlnir, 472, inT), !)17. 
 
 Wel>l) V. Stciitini, 741', 74;», 744, 747. 
 
 Wcl.b V. W.'l,),, ',m. 
 
 W'flilxT, /■'■. 74i"i. 
 
 Wcl.litr V. Miiiit, KM. 
 
 Wel)l«r V. W(<lK'fwi.o(l, 447. 
 
 Wclwttr, '■' /""■''. '•'• MdiTiH, !Ul. 
 
 WclistiT V. Aiiiistroiit,', 12H. 
 
 I'.iitisli Kiiipiw Co., .T_'!», aid. 
 
 Coal ('iiiisiiuifrH' Co.. (MM. 
 
 Fiicdcrhcrj;, ti(i2. 
 Wcl)st.'r V. Li' Hunt. WK. 470, 171. 
 W.listcr V. Lrys, :$((>, ;{47, 47(>. 
 
 Tiittcrson, 23.5. 
 
 Tii.vlor, 7<K». 
 Wflisti r V. Wchstcr, 743. 
 Wclistir V. Wlitwiill. I'M'., 504, MO. 
 Wcililcrliui'ii V. Wt'ddfrburn, 100, 4(>H. 
 Weed V. Wiinl, !t7, itO. 
 Weeks V. Stourtoii, 1!M», 240, 505. 
 Weir V. lianii'tt, 11, 4.'»0. 
 Weir V. Miitlicson, 4i»l, (>3S. 
 Weids V. Craftti, 214. 
 Welcli V. O'Biit-n, 857. 
 Weldon V. De Uatlio, 33(), 339. 
 Weldou V. N«al, 337, 44(}, 449, 4.52. 
 Weldon v. Teniplftoii, 150, 585. 
 Weldon v. Winslow, 330, 339. 
 Wellbank v. Congi-r, «37, 891, 897, 901. 
 Weller v. Proctor, 426. 
 Welleslcy v. Beaufort, 15, 63. 
 Wellesley v. Mornington, 255. 
 WellH V. Kilpin, 216. 
 Wells V. Lindoj:, '>61 {adda). 
 Wells V. Trust & Loan Co., 172, 227. 
 Welpy V. Buhl, 481. 
 Welsh Steam, etc., Co. v. Gaskell, 509. 
 Wcnlock V. River Dee Company, 147. 
 Wertierinan v. Societe (ienerale, etc., 347, 
 
 355, 420. 
 Wesson V. Stalker, 460, 006, 627. 
 West, n; West v. Falkiner, 765, 770. 
 West V. Downnian, .580, 656. 
 West V. West, 724. 
 Wcstbrooke v. Browett, 764. 
 West Devon Coal Mines, re, 525, 655. 
 West ] [uron Election Case, 4. 
 West London Dairy Soc. v. Abbott, 528. 
 
 West London Conmiercial Bank, re, 180. 
 West London Commercial Bank v. Reliance 
 
 I'enn. B. H. 167, 231. 
 West of England Banking Co. v. Batchelor, 
 
 49. 
 West of England Bank v. Canton, Co., 
 
 5(t2. 
 Westacott V. Cocki'rline, 15. 
 Westlirooke V. Attorncy-lieneral, 18. 
 Westlirooke V. Browett, 10. 
 Westbury v. Meredith, 10. 
 WeKterji Advertising Co. v. Rainer, rr, 
 
 8! 18. 
 
 Western Assurance Co. v. Capreol, 391. 
 Western Canada Loan & Savings Co. v. 
 Court, 8H1. 
 
 Western C. L. & S. S. v. Dunn, 389, 612, 
 (il3. 
 
 Western l)iHtriet ]?ank v. Turner, 168. 
 
 Western of Canada Oil Co., n; 485. 
 
 Western of Canada Oil Co. v. Walker, 503. 
 
 Western Insurance Co., rr, 478. 
 
 Westgate v. Westgate, 894. 
 
 Westhead v. Riley, 60, 216, 748. 
 
 Westinghoiise v. Midland, etc., 507. 
 
 Westley v. .Tones, 289. 
 
 Westloh v. Brown, 281. 
 
 Westmacott v. Hanley, 232. 
 
 Westman v. Aktiebolaget, etc., E, M. 
 
 Snickarefabrik, 273, 2{I8, 302. 
 Westminster v. Glasgow, 232. 
 Wetherall v. Garlow, 94. 
 Whalley, re, 933. 
 Whalley v. Whalley, 467. 
 Wheatley v. Bastow, re, Collins, 268. 
 Wheatley v. Sharjie, 833. 
 Wheeler v. Horme, 167. 
 Wheeler v. LeMarchant,' 506 507. 
 Wheeler v. United Telephone Co., 868, 
 569. 
 
 Whelan v. Conch, 199, 202. 
 Whetstone v. Dewis, 382. 
 Whinney, ex />., 707. 
 Whistler v. Hancock, 481, .576. 
 Whitby V, Liscombe, 20. 
 Wiiite, r<; Kersten v. Tane, 29. 
 White V. Ahrens, 4.S3, 4!I6, 504. 
 Wiiite V. Beanier. 99. 
 White V. Beasley, 221. 
 
 i nn 
 
 

 IMAGE EVALUATION 
 TEST TARGET (^Vf-S) 
 
 1.0 
 
 1.1 
 
 ^1^ 1^ 
 
 ■» m III 2.2 
 
 1.8 
 
 6" 
 
 L25 iU 11.6 
 
 Photographic 
 
 Sciences 
 
 Corporation 
 
 23 WIST MAIN STREiT 
 
 WEBSTER, N.Y. 14SM 
 
 (716) tn-4S03 
 
 
 '^ 
 
4z. 
 
 '^ 4ifi 
 
 
 i- 
 
 z. 
 
w 
 
 Ixxxviii 
 
 TABLE OF CASES CITED. 
 
 i'i 
 
 Wliito V. Bflfry, 903. 
 White V. B()l).v, (12. 
 Vv'hite V. l?r(mii(?fii 940. 
 White V. Chitty, 328. 
 White V. City of London Brewing Co., 107. 
 22(> {adda). 
 
 Whit« V. Courtney, 0!)4. 
 \' ti ■ . Cummins, 340, 705, 709. 
 W ::!-;3 V. (Jo.sfield, 801. 
 White V. Kirby, 14. 
 W./u.. -'.itnti & Water, etc., Co., 2<)9. 
 vV!,.i^ .. n), 8.jl. 
 Chi.- •■';icf rregor, 302. 
 Wliitc V. 1 ainsay, ;J82. 
 White V. »Vall8, 490. 
 Wliite V. Watts, 488. 
 White V. Wliite, 280, 281, 519. 
 White V. Witt, 78. 
 Whitehead, re, 2.58. 
 
 Whitehead v. Buffalo & L. H. R. W,, 539, 
 672, 670. 
 
 Whitehead v. Harte', 485. 
 Whitehead v. North, 154, 054. 
 Whitehead v. Tait, 901. 
 Whitehouse, re, 407. 
 Whiteley v. Barley, 483, 499. 
 Whitely, re, 27. 
 
 White Sewing Machine Co. v. Belfry, 903 
 Whitfield v. Roberts, 237, 393. 
 Whiting V. Hovey, 9, 77, 78, 79. 
 Whitla V. Paliday, 223. 
 Whitley v. Honeywell, 292. 
 Whitney v Smith, l.">2, 340, 349, 352. 
 ^\ hitney v. Stark, 589. 
 Whitson V. Smith, 332. 
 Whittaker v. Mason, re, 808. 
 Whittaker v. Whittaker, 707, 741, 748. 
 Whittemore v. Whittemore, 205. 
 Wiard V. Gable, 100, 709. 
 Wiarton Belle, The, 585. 
 Wio'.cham, re, Marony v. Taylor, 43. 
 Wicks, re, 504. 
 Wicks V. Wood, 892. 
 Wickstead v. Biggs, 912, 1087. 
 Widnes Alkali Co. v. Sheffield & Midland 
 Ry. Co. Committee, 54. 
 
 Wigan Junction Ry. Co., re, 265. 
 Wigle V. Harris, 401, 404, 690. 
 Wigle V. McLean,. 326. 
 
 Wigle V. Setterington, .322. 
 
 Wight V.Shaw, 895, 89(i, 897, 901. 
 
 Wightman v. Fields, 10. 
 
 Wigh^man v. Helliwell, 160. 
 
 Wilby V. Standard, 80, 81. 
 
 Wilcocks V. Howell, 602. 
 
 Wilde V. Crow, 554. 
 
 Wilde V. Wilde, 440. 
 
 Wilder v. Hopkins, 943. 
 
 Wildy V. Mid-Hants Ry. Co., 217. 
 
 Wiley V. Ledyard, 164, 170, 177, 224, 226. 
 
 Wilkes V. Parker, 423. 
 
 Wilkes V. Sanion, 172, 227. 
 
 Wilkins v. Belford, 481, (iOl. 
 
 Wilkins v. McLean, 22(i, 675. 
 
 Wilkins V. Peatman, 878, 880. 
 
 Wilkins V. Reeves, 326, 327. 
 
 Wilkinson, re, 27. 
 
 Wilkinson v. Garrett, 616. 
 
 Wilkinson v. Hull, 75. 
 
 Wilkinson v. Schneider, 250. 
 
 Wilkinson v. Smart, 929. 
 
 Wilkinson v. Wilkinson, 173. 
 
 Wlkes V. Hohnes, 12. 
 
 Wilks V. Judge, 77. 
 
 Willcock V. Terrell, 718, 745. 
 
 Wiltgress V. Crawford, 615. 653, 654. 
 
 William Symington, The, 894. 
 
 Williams, re, 468. 
 
 Williams v. Allen, 331. 
 
 Williams v. Andrews, 3.56, 361. 
 
 Williams v. Aylesbury & Ruthingham Ry. 
 
 Co., 217. 
 Williams v. Brisco, 619, 665. 
 Williams v. Bryant, .308. 
 Williams v. Card well, 619. 
 Williams v. Clough, .5,57. 
 Williams v. Corby, 445, .551. 
 Williams V. Crow, 516, 857, 858, 9.50. 
 Williams v. DeBoinville, 459, 478. 
 Williams v. Hann, 189. 
 Williams v. .Johns, 71.5. 
 Williams v. Jones, 899, 900. 
 Williams v. Mekins, 655. 
 Williams v. Powell, 160. 
 Williams v. Prest(m, 574, 645. 
 Williams v. Reynolds, 771. 
 Williams V. Roy, 175, 771. 
 Williams V. S. E. Ry. Co., 372. 
 Williams v. Snowden, 41. 
 
TABLE OF CASES CITED. 
 
 Ixxxiz 
 
 Williams V. Ward, 898, 8!)9. 
 
 Williams v. Welch, 722. 
 
 Williams v. Williams, 308, 563. 
 
 Williams v. Wood, 194. 
 
 Williams v. Wright, 410. 
 
 Williamson v. Aylmer, 257. 
 
 Williamson v. Ellis, «iK) (adda). 
 
 Williamson v. Ewing, 316. 
 
 Williamson v. L. & F. W. Ry. Co., 417, 
 
 418, 429, 436, 444, 449, 463. 
 Williamsim v. Seaber, 169. 
 Williamson v. Town of Aylmer, 257. 
 Willing V. Elliott, re, 128. 
 Willis V. Earl Beauchamp, 43. 
 Willis V. Earl Howe, 435. 
 Willis V. Parkinson, 6.54. 
 Willis V. Walker, 347. 
 Willis V. Willis, 180, 330, 766. 
 W'illoughby, ri; 765. 
 Wills V. Cannan, 906. 
 Wills V. Carroll, 851. 
 Wills V. Luff, 747. 
 Wilmott V. Barber, 893, 896. 
 Wilmott V. Freehold, 381, 449, 578. 
 Willmott V. Young, 616, 619. 
 Wilson, re, 782. 
 
 Wilson, re, Lloyd & Tichbourne, 763. 
 Wilson V. Baird, 559. 
 Wilson V. Beatty, 673. 
 Wilson V. Brown, 686. 
 Wilson V. Brunskill, 506. 
 Wilson V. Church, 341, 360, 361, 671, 762. 
 Wilson V. Claphani, 167. 
 Wilson V. Cluer, 163. 
 Wilson V. Cowan, 485, 544 (adda). 
 Wilson V. Detroit & Milwaukee Ry, Co., 
 
 2tt8. 
 Wilson V. Duncan, 144. 
 Wilson V. Dundas, 531, 742, 751. 
 Wilson V. p]mmett, 466, 470. 
 Wilson V. Etna Life Ins. Co., 298. 
 Wilson V. Greenwood, 197,217, 218. 
 Wilson V. Irwin, 6()3. 
 Wilson V. Kerr, 668. 
 Wilson V. McCarthy, 162, 255. 
 Wilson V. McDonald, 549. 
 Wilsi.n V, McLay, 343. 
 Wilson V. McKay, 343. 
 Wilson V. Metcalfe, 163, 168, 718. 
 Wilson \-. Noble, 404. 
 J. A. 
 
 Wilson V. Northampton, 506. 
 
 Wilson V. Rhodes, 321. 
 
 Wilson V. Proud foot, 749. 
 
 Wilson V. Roberts, 901. 
 
 Wilson V. Robertson, 655. 
 
 Wilson V. Rodger McKay, 343. 
 
 Wilson V. Rose, 321. 
 
 Wilson V. Ruflfalovich, 497. 
 
 Wilson V. Rykert, 230, 231. 
 
 Wilson V. Switzer, 14, 472, 916. 
 
 Wilson V. Thornbury, .504. 
 
 Wilson V. Thorjje, .534. 
 
 Wilson V. Turner, 784. 
 
 Wilson V. Wainfleet, re, 862. 
 
 Wilson V. WiLson, 17, 29, 514, 518, 519, 
 
 714,880, 888, 942, 943. 
 Wiltshire v. Marshall, 544. 
 Wiman v. Bradstreet, .507. 
 Wimshurst v. Barrow Shipbuilding Co., 893. 
 Windham v. Barnton, 923. 
 Winfield v. Fowie, 878. 
 Wingard v. Cox, 432. 
 Wingrove v. Thompson, 330, 565. 
 Winkley v. Winkley, 4()0, 647, 049. 
 Winnett v. Renwick, 82. 
 Winscom, re, 65. 
 
 Winterfield v. IJradnum, 410, 946. 
 Wintle V. Williams, 741. 
 Wise, re, ex parte, Mecer, 789. 
 Wise V. Birkenshaw, 740, 751. 
 Wise V. Hewson, 898. 
 Wisewold, re, 406. 
 Wishart v. Cot)k, 210. 
 Witham v. Vane, 365, 370, 372, iKMi. 
 Withers v. Parker, 668. 
 Withrow, re, Poucher v. Donovan, 745. 
 Witlett V. Blanford, 160. 
 Witmann v. Oppenheim, 893, 894. 
 Witt V. Ames, 467. 
 Witt V. Corcoran, 74. 
 Witt V. Parker, 008. 
 Witten, re, 05. 
 Wolfe V. Hughes, 437, 004. 
 Wolff V. Ogilvy, 28, 132, 375, 377, 378. 
 Wolverhampton & Staffordshire Banking 
 
 Co. V. B(md, 290, 388. 
 Wolverhampton v. George, 012. 
 Womersley, re, Etheridge v. Womersley 
 
 762. 
 Wood, re, 872, 892. 
 
xc 
 
 TABLE OF CASES CITED. 
 
 Wfwd V. Anglo-Italian Banking Co., 444, 
 
 501. 
 Wood V. IBrett, 188, 327. 
 Wood V. Cassin, 574. 
 Wood V. Dunn, 750. 
 Wood V. Earl of Durham, 429, 44!). 
 Wood V. Goodwin, 455. 
 Woofl V. (irand Trunk Ky. Co., tiStJ. 
 WcKxl V. Hitcliings, 215. 
 Wcxxl V. Hurl, 77!>, 701. 
 Wood V. Italian Bank, 513. 
 Wood V. Kay, 400, .583. 
 Wood V. McAlpine, 50,350. 
 Wocxl V. Mclnnis, 305. 
 Wocxl V. McPherson.WU. 
 Wood V . Madras, 79. 
 Wood V. Midgeley, 440. 
 Wood V. Scoles, 162. 
 Wood V. Vincent, 255. 
 Wood V. Weightman, 179, 348. 
 Wood V. Wheater, 383, 708. 
 Wood V, Wood, 169, 780. 
 Wood V. Woixl, Markwell's Case, 348. 
 Woods, re, Whittreck v. Woods, 157. 
 Woods V . Woods, 373. 
 Woodfin V. Wray, 310. 
 Woodfine, re, 385. 
 
 Wfxxlfine, Thompson, Wo<xlfine, 409, 414. 
 Woodhall, re, 769. 
 W(xxlhall, re, Garbutt v. Hewson, 763, 
 
 768, 899. 
 Woodhill V. Sullivan, 211. 
 Woodhouse v. Wood house, 331. 
 WcKxlniff V. Canada Guarantee Co., 90. 
 Woodruff V. McLennan, 628. 
 Woodward v. Pratt, 250. 
 Woodward v. Shields, 358, 461. 
 Woolcott V. Peggie, 194 (adda), 
 Wooley V. Coleman, 351, 1069. 
 Woolf V, Pemberton, 333. 
 Woolaton v. Baines, 630. 
 Workinp.men's Mut. Soc., 1098. 
 Workman v. Robb, 79. 
 Worley v. Glover, 289. 
 Worman v. Brady, 902. 
 Wormsley v. Sturt, 183. 
 Worraker v. Pryer, 271. 
 Worrall v. Johnson, 466. 
 Worssam, re, Hemery v. Worssam, 385. 
 Worswick, re, .506, 507. 
 
 Worth V. McKenzie, 375, 
 
 VVortham v. Pamberton, 333. 
 
 Worthpin v. Tuck, 634. 
 
 Worthingtim v. Boulton, 460. 
 
 Worthington v. Hulton, 861. 
 
 Worthington v. Johnson, 674. 
 
 Wortley, f, 361, .565. 
 
 Wortley, ,e, Culley v. Wortley, 361. 
 
 Wray v. Kemp, 278, 279, 287. 
 
 Wrentmore v. Hagley, 504. 
 
 Wright, re, 2.58, 799, 803. 
 
 Wright V. Chard, 916. 
 
 Wright V. Collins, 749, 803. 
 
 Wright V. Clifford, 664. 
 
 Wright V. Hull, 287. 
 
 Wright V. King, 466, 467. 
 
 Wright V. Leys, 80. 
 
 Wright V. Mills, 664. 
 
 Wright V. Morgan, 164, 229, 31(5. 
 
 Wright V. Rankin, 13. 
 
 Wright V. Redgrave, 42. 
 
 Wright V. Swindon Ry. Co., 561, .576. 
 
 Wright V. Sun Mutual, 596. 
 
 Wright V. Tucker, 836, 843. 
 
 Wright V. Way, 479, 589. 
 
 Wright V. Wright, 43, 224, 41 S l,(ulda), 425 
 
 (addn), .521 (adila). 
 Wyatt V. Sadler, 154. 
 Wyche, re, 173. 
 Wycott V. Campbell, 86. 
 Wye Valley Ry. Co. v. Hawes, 364, 366, 
 
 367, 368, 369, 373. 
 Wyggeston Hospital v. Stevenson, re, 459, 
 
 477. 
 Wyld v. McMaster, 66. 
 Wyman v. Knight, 705, 708. 
 Wymer v. Dodds, 356. 
 Wynn v. Humbertson, 507. 
 Wyoming v. Bell, 170. 
 
 X, re, 1089. 
 
 Yaggie, re, 170, 694. 
 
 Yates v. Great Western Ry. Co., 350. 
 
 Yeatman v. Read, 647. 
 
 Yeatman v. Snow, 283, 403, 468. 
 
 Yeoman v. Johnston, 472. 
 
 Yglesias v. Royal Exchange Co., 921. 
 
 York V. Stowers, 285, 635. 
 
TABLE OF OASES CITED. 
 
 XOl 
 
 Yorkshire Banking Co. v. Beatson, 631, 
 640. 
 
 Yorksliire Banking Co. v. Mallon, 216. 
 
 Yorkshire Tannery Co. v. Eglinton, 305. 
 
 Yorkshire Waggon Co. v. Newport Coal 
 Co. 365, 369, 372. 
 
 Yorkshire Waggon Co. v, Cornwall Mine- 
 rals, etc., Co., 4'j6. 
 
 York Union Banking Co. v. Artley, 386. 
 
 Young, ex. p., 343, 712. 
 
 Young V. Beattie, 403. 
 
 Young V. Brassey, 57, 291, 300, 301. 
 
 Young V. English, 469. 
 
 Young V. Hobson, 472, 916, 917. 
 
 Young V. Holloway, 506. 
 
 Young V. Huber, 359. 
 
 Young V. Kischin, 50, 413. 
 
 Young V. Prittie, 97. 
 
 Young V. Purvis, 794, 803. 
 
 Young V. Ridgetown, 716 (adda). 
 
 Young V, Robertson, 335, 339, 347, 355, 
 
 419, 420, 422. 
 Young V. Shore, 836. 
 Young V. Ward, 326. 
 Young V. Wright, 778, 
 Young V. Young, 742, 745, 748. 
 Young, re, Doggetts v. Revitt, 79. 
 Younge v. Cocker, 612. 
 Yourex v. Alcombrack, 204. 
 
 Zimmerman v. O'Reilly, 346. 
 
W^' 
 
 COMPARATIVE TABLE 
 
 OF 
 
 English Rtilen of 1875 (and ametidinn Rules), Ritlex of 1883, and corres- 
 pondiny Ontario liulen. 
 
 RULES SUP. (;. 1875 
 vND Amending Kules. 
 
 RULES SUP. C. 
 
 1883. 
 
 ONT. RULES. 
 
 Order. 
 
 Rule. 
 
 Order. 
 
 Knle. 
 
 Margin No. 
 
 Margin No. 
 
 1 
 
 1 
 
 1 
 
 1 
 
 1 
 
 224 
 
 
 3 
 
 
 2 
 
 2 
 
 
 2 
 
 1 
 
 2 
 
 1 
 
 3 
 
 224 
 
 
 2 
 
 
 2 
 
 4 
 
 1195 
 
 
 3 
 
 
 3 
 
 5 
 
 231 
 
 
 6 
 
 
 6 
 
 7 
 
 232 
 
 
 8 
 
 
 8 
 
 10 
 
 233 
 
 3 
 
 2 
 
 
 2 
 
 12 
 
 243 
 
 
 3 
 
 
 3 
 
 13 
 
 244 
 
 
 4 
 
 
 4 
 
 14 
 
 224 
 
 
 G 
 
 
 6 
 
 IG 
 
 i 245 
 
 
 7 
 
 
 7 
 
 17 
 
 1 24(> 
 
 
 8 
 
 
 8 
 
 18 
 
 1 247 
 
 4 
 
 1 
 
 4 
 
 1 
 
 19 
 
 1 240 
 
 
 2 
 
 
 2 
 
 20 
 
 241 
 
 6 
 
 1 
 
 
 
 1 
 
 23 
 
 230 
 
 
 2 
 
 
 3 
 
 25 
 
 224 
 
 
 3 
 
 
 4 
 
 26 
 
 ! 224 
 
 
 5 
 
 
 10 
 
 32 
 
 224 
 
 
 6 
 
 
 11 
 
 33 
 
 229 
 
 
 7 
 
 
 12 
 
 34 
 
 547 
 
 
 8 
 
 
 13 
 
 35 
 
 235 
 
 6 
 
 1 
 
 (') 
 
 1 
 
 40 
 
 236 
 
 
 2 
 
 
 2 
 
 41 
 
 237 
 
 7 
 
 1 
 
 7 
 
 1 
 
 42 
 
 250 
 
 
 2 
 
 
 2 
 
 43 
 
 251 
 
 8 
 
 1 
 
 8 
 
 1 
 
 45 
 
 238 
 
 
 2 
 
 
 2 
 
 46 
 
 239 
 
 9 
 
 1 
 
 y 
 
 1 
 
 48 
 
 252 
 
 
 2 
 
 
 2 
 
 49 
 
 253 
 
 
 6 
 
 
 5 
 
 52 
 
 263 
 
 
 6 
 
 
 6 
 
 53 
 
 265 
 
 
 6(/ 
 
 
 7 
 
 54 
 
 266 
 
 
 7 
 
 
 8 
 
 55 
 
 269 
 
 
 13 
 
 
 15 
 
 62 
 
 256 
 
 11 
 
 1, la 
 
 11 
 
 1 
 
 64 
 
 271 
 
 
 
 
 (5 
 
 69 
 
 232 
 
 
 5 
 
 
 7 
 
 70 
 
 272 
 
 12 
 
 1-5 
 
 12 
 
 1 
 
 77 
 
 547 
 
 
 5, 6/) 
 
 
 8 
 
 71-78 
 
 277 
 
 
 ()fc 
 
 
 9 
 
 79 
 
 281 
 
 
 7 
 
 
 10 
 
 80 
 
 282 
 
ONTARIO JUDICATURE ACT. 
 COMPARATIVE TABLE— Continued. 
 
 XCIU 
 
 RULES SUP. 0. 1875 
 AND Amending Bulks. 
 
 RULES SUP. C. 
 
 1883. 
 
 ONT. RULES. 
 
 Order. 
 
 Rule. 
 
 Order. 
 
 Rule. 
 
 Margin No. 
 
 Margin No. 
 
 12 
 
 8 
 
 12 
 
 11 
 
 81 
 
 284 
 
 
 9 
 
 
 12 
 
 82 
 
 285 
 
 
 10 
 
 
 13 
 
 83 
 
 286 
 
 
 il 
 
 
 14 
 
 84 
 
 287 
 
 
 12 
 
 
 16 
 
 86 
 
 288 
 
 
 12a 
 
 
 16 
 
 86 
 
 289 
 
 
 13 
 
 
 17 
 
 87 
 
 278 
 
 
 14 
 
 
 18 
 
 88 
 
 283 
 
 
 15 
 
 
 22 
 
 92 
 
 281 
 
 
 18 
 
 
 25 
 
 96 
 
 293 
 
 
 19 
 
 1 
 
 26 
 
 96 
 
 295 
 
 
 20 
 
 1 
 
 27 
 
 97 
 
 296 
 
 
 21 
 
 
 28 
 
 98 
 
 297 
 
 
 22 
 
 
 29 
 
 99 
 
 298 
 
 18 
 
 1 
 
 13 
 
 1 
 
 101 
 
 336a 
 
 
 2 
 
 
 2 
 
 102 
 
 704 
 
 
 3,5 
 
 
 3 
 
 103 
 
 705 
 
 
 4,6 
 
 
 4 
 
 104 
 
 706 
 
 
 6 
 
 
 5 
 
 105 
 
 708 
 
 
 
 
 6 
 
 106 
 
 709 
 
 
 
 
 7 
 
 107 
 
 711 
 
 
 7 
 
 
 8 
 
 108 
 
 714 
 
 
 8 
 
 
 9 
 
 109 
 
 715 
 
 14 
 
 1 
 
 14 
 
 1 
 
 115 
 
 739 
 
 
 2 
 
 
 2 
 
 116 
 
 739 
 
 
 3 
 
 
 3 
 
 117 
 
 740 
 
 
 / 
 
 
 4 
 
 118 
 
 741 
 
 
 6 
 
 
 5 
 
 119 
 
 742 
 
 
 6 
 
 
 6 
 
 120 
 
 743 
 
 15 
 
 1 
 
 15 
 
 1 
 
 121 
 
 746 
 
 
 2 
 
 
 2 
 
 122 
 
 746 
 
 16 
 
 1 
 
 16 
 
 1 
 
 123 
 
 300 
 
 
 2 
 
 
 2 
 
 124 
 
 446 
 
 
 3 
 
 
 4 
 
 126 
 
 301 
 
 
 4 
 
 
 5 
 
 127 
 
 302 
 
 
 5 
 
 
 6 
 
 128 
 
 303 
 
 
 6 
 
 
 7 
 
 129 
 
 308 
 
 
 7 
 
 
 8 
 
 130 
 
 309 
 
 . 
 
 9 
 
 
 9 
 
 131 
 
 316 
 
 
 9a 
 
 
 
 
 316 
 
 
 13 
 
 
 11 
 
 133 
 
 324 
 
 
 14 
 
 
 12 
 
 134 
 
 325 
 
 
 15 
 
 
 13 
 
 IJo 
 
 326 
 
 
 10 
 
 
 14 
 
 136 
 
 317 
 
 
 10a 
 
 
 15 
 
 137 
 
 318 
 
 
 8 
 
 
 16 
 
 138 
 
 813. 314 
 
 18 
 
 
 
 17 
 
 139 
 
 835 
 
1 
 
 nr 
 
 XCIV 
 
 COMPARATIVE TABT.E OF RULES. 
 
 COMPARATIVE TABLH—Cout hived. 
 
 ; ■ 
 
 ii 1; 
 
 
 KULE8 SUP. C, 1875 
 
 AND A»[ENDINO RULEB 
 
 RULES SUP. C. 
 
 188;). 
 
 ONT. RULES. 
 
 Older. 
 
 Rule. 
 
 Order. 
 
 Rule. 
 
 Margin No. 
 
 Margin No. 
 
 16 
 
 9a 
 
 16 
 
 32 
 
 154 
 
 316 
 
 
 
 
 33-36 
 
 155-158 
 
 320 (1-5) 
 
 
 
 
 37 
 
 159 
 
 320 (6) 
 
 
 
 
 46 
 
 168 
 
 310 
 
 
 12(b) 
 
 
 47 
 
 169 
 
 334 
 
 
 18 
 
 
 48 
 
 170 
 
 829 
 
 
 
 
 49 
 
 171 
 
 331 
 
 
 
 
 52 
 
 174 
 
 332 
 
 
 21 
 
 
 53 
 
 175 
 
 • 332 
 
 
 
 
 54 
 
 176 
 
 332 
 
 50 
 
 1 
 
 17 
 
 1 
 
 178 
 
 620 
 
 
 3 
 
 
 3 
 
 180 
 
 621 
 
 
 4 
 
 
 4 
 
 181 
 
 622 
 
 
 6 
 
 
 5 
 
 182 
 
 623 
 
 
 6 
 
 
 6 
 
 183 
 
 624 
 
 
 7 
 
 
 7 
 
 184 
 
 626 
 
 17 
 
 1 
 
 18 
 
 I 
 
 188 
 
 340, 346 
 
 
 2 
 
 
 2 
 
 189 
 
 341 
 
 
 3 
 
 
 3 
 
 190 
 
 342 
 
 
 4 
 
 
 4 
 
 191 
 
 343 
 
 
 5 
 
 
 5 
 
 192 
 
 344 
 
 
 6 
 
 
 6 
 
 193 
 
 345 
 
 
 7 
 
 i 
 
 7 
 
 194 
 
 346 
 
 
 8 
 
 
 8 
 
 195 
 
 346 
 
 
 9 
 
 ' 
 
 9 
 
 196 
 
 346 
 
 10 
 
 1 
 
 19 
 
 1 
 
 197 
 
 394 
 
 
 2 
 
 
 2 
 
 198 
 
 i 369, 371 
 
 
 3 
 
 ■ 
 
 3 
 
 199 
 
 1 373 
 
 
 4 
 
 
 4 
 
 200 
 
 399, 449 
 
 
 5 
 
 
 9 
 
 205 
 
 395 
 
 
 6 
 
 
 10 
 
 206 
 
 cf. 461-462 
 
 
 7 
 
 
 11 
 
 207 
 
 397 
 
 
 16 
 
 
 12 
 
 208 
 
 417 
 
 
 18 
 
 
 15 
 
 211 
 
 402 
 
 
 19 
 
 
 16 
 
 212 
 
 419 
 
 
 23 
 
 
 20 
 
 216 
 
 413 
 
 
 24 
 
 
 21 
 
 217 
 
 406 
 
 
 25 
 
 
 22 
 
 218 
 
 407 
 
 
 26 
 
 
 23 
 
 219 
 
 408 
 
 
 27 
 
 
 24 
 
 220 
 
 409 
 
 27 
 
 28 
 
 
 25 
 
 221 
 
 410 
 
 1 
 
 
 27 
 
 223 
 
 423 
 
 21 
 19 
 
 1 
 
 20 
 
 1 
 
 225 
 
 369 
 
 8 
 
 
 6 
 
 230 
 
 404 
 
 
 9 
 
 
 7 
 
 231 
 
 406 
 
 22 
 
 11 
 1 
 
 21 5 
 
 238 
 
 411 
 
 
 6 
 
 239 
 
 371 
 
ONTARIO JUDICATURE ACT. 
 
 XCV 
 
 COMPARATIVE TABhll— Continued. 
 
 RULES SUP. 1875 
 AND Amending Kules. 
 
 RULES SUP. C. 
 
 1883. 
 
 ONT. RULES. 
 
 Order. 
 
 Kule. 
 
 Order. 
 
 Rule. 
 
 Margin No. 
 
 Margin No. 
 
 22 
 
 2 
 
 21 
 
 7 
 
 240 
 
 372 
 
 
 4 
 
 
 9 
 
 242 
 
 1189 
 
 
 5 
 
 
 11 
 
 244 
 
 376 
 
 
 6 
 
 
 12 
 
 245 
 
 377 
 
 
 7 
 
 
 13 
 
 246 
 
 378 
 
 
 8 
 
 
 14 
 
 247 
 
 379 
 
 
 9 
 
 
 15 
 
 248 
 
 374 
 
 
 10 
 
 
 17 
 
 250 
 
 375 
 
 
 
 
 19 
 
 252 
 
 417 
 
 19 
 
 13 
 
 
 20 
 
 253 
 
 414 
 
 
 15 
 
 
 21 
 
 254 
 
 416 
 
 80 
 
 1 
 
 22 
 
 1 
 
 255 
 
 \ 
 
 
 1 
 
 
 2 
 
 266 
 
 
 
 
 
 3 
 4 
 
 257 
 
 258 
 
 ^ 632-640 
 
 
 
 
 5 
 
 259 
 
 
 
 4 
 
 
 7 
 
 261 
 
 
 ^4 
 
 1 
 
 23 
 
 1 
 
 276 
 
 381 
 
 
 2 
 
 
 2 
 
 277 
 
 382 
 
 
 3 
 
 
 3 
 
 278 
 
 383 
 
 
 4 
 
 
 4 
 
 279 
 
 379 
 
 «6 
 
 
 
 5 
 
 280 
 
 392 
 
 19 
 
 14 
 
 
 6 
 
 281 
 
 415 
 
 20 
 
 1 
 
 24 
 
 1 
 
 282 
 
 434-435 
 
 
 2 
 
 
 2 
 
 283 
 
 436-437 
 
 
 3 
 
 
 3 
 
 284 
 
 440 
 
 23 
 
 1 
 
 26 
 
 1 
 
 290 
 
 641-642 
 
 
 2 
 
 
 2 
 
 291 
 
 670 
 
 
 2a 
 
 
 3 
 
 292 
 
 641 
 
 29 
 
 1 
 
 27 
 
 1 
 
 294 
 
 646 
 
 
 2 
 
 
 2 
 
 295 
 
 719 
 
 
 3 
 
 
 3 
 
 296 
 
 720 
 
 
 4 
 
 
 4 
 
 297 
 
 721 
 
 
 5 
 
 
 5 
 
 298 
 
 722 
 
 
 6 
 
 
 6 
 
 299 
 
 732 
 
 
 7 
 
 
 7 
 
 300 
 
 724 
 
 
 8 
 
 
 8 
 
 301 
 
 725 
 
 
 10 
 
 
 11 
 
 304 
 
 727 
 
 
 11 
 
 
 12 
 
 305 
 
 728 
 
 
 13 
 
 
 14 
 
 307 
 
 729 
 
 
 14 
 
 
 15 
 
 308 
 
 796 
 
 27 
 
 1 
 
 28 
 
 1 
 
 309 
 
 423 
 
 
 2 
 
 
 2 
 
 310 
 
 424 
 
 
 3 
 
 
 3 
 
 311 
 
 425 
 
 
 4 
 
 
 4 
 
 312 
 
 426 
 
 
 5 
 
 
 5 
 
 313 
 
 427 
 
XCVl 
 
 COMPARATIVE TABLE OF RULES. 
 
 COMPARATIVE TABLE— Continued. 
 
 RULES SUP. <•. 1875 
 
 AND AHENDINU KUI.E8. 
 
 Order. 
 
 27 
 
 41a 
 
 69 
 
 81 
 
 82 
 40 
 
 26 
 33 
 
 34 
 
 86 
 
 Rule. 
 
 () 
 7 
 8 
 i) 
 
 10 
 
 28 
 2 
 
 12 
 
 13 
 
 11 
 
 14 
 
 15 
 
 16 
 17-18 
 
 1!> 
 
 20 
 
 21 
 
 22 
 
 23 
 1 
 2 
 3 
 
 11 
 
 1 
 
 2 
 
 3 
 
 4 
 
 5 
 
 7 
 
 1 
 
 6 
 
 7 
 4, 4 {») 
 
 8 
 
 9 
 10 
 15rt 
 17 
 18 
 19 
 20 
 21 
 
 RULES SUP. C. 1888. 
 
 Order. 
 
 28 
 
 31 
 
 32 
 
 33 
 34 
 
 36 
 
 Rule. 
 
 6 
 
 7 
 
 8 
 
 9 
 
 10 
 
 11 
 
 12 
 
 12 
 
 13 
 
 14 
 
 15 
 
 16 
 
 17 
 
 18 
 
 20 
 
 21 
 
 22 
 
 23 
 
 24 
 
 1 
 
 2 
 
 3 
 
 6 
 
 7 
 
 8 
 
 1 
 
 2 
 
 1 
 
 2 
 
 3 
 
 4 
 
 5 
 
 7 
 
 1 
 
 8 
 
 9 
 12 
 13 
 14 
 15 
 28 
 30 
 31 
 32 
 33 
 34 
 
 Margin No. 
 
 314 
 
 315 
 
 816 
 
 317 
 
 318 
 
 319 
 
 320 
 
 354 
 
 355 
 
 356 
 
 357 
 
 358 
 
 359 
 
 360 
 
 362 
 
 363 
 
 364 
 
 365 
 
 366 
 
 371 
 
 372 
 
 373 
 
 376 
 
 377 
 
 378 
 
 380 
 
 381 
 
 382 
 
 389 
 
 390 
 
 391 
 
 392 
 
 393 
 
 395 
 
 425 
 
 432 
 
 433 
 
 436 
 
 437 
 
 438 
 
 439 
 
 452 
 
 454 
 
 455 
 
 456 
 
 457 
 
 458 
 
 ONT. BULE8. 
 
 MarRin No. 
 
 429 
 430 
 431 
 432 
 433 
 780 
 444 
 508 
 513 
 507 
 514 
 515 
 516 
 517-518 
 
 519 
 499, 520 
 522 
 523 
 506 
 400 
 617 
 618 
 756 
 515 
 619 
 420 
 651 
 64 
 554 
 555 
 556 
 557 
 538 
 558 
 653 
 655 
 666 
 647, 654 
 660 
 661 
 660 
 663 
 669 
 672 
 673 
 795 
 681 
 
ONTARIO JUDICATURE ACT. 
 
 XCVll 
 
 COMPARATIVE TABLE— Continiieil. 
 
 RULES SUP. C. 1875 
 AND Amending Rulk.h. 
 
 RULES SUP. C. 
 
 18«:J. 
 
 ONT. RULES. 
 
 order. 
 
 Rule. 
 
 Order. 
 
 Rule. 
 
 Margin No. 
 
 Margin No. 
 
 36 
 
 
 36 
 
 36 
 
 460 
 
 675 
 
 
 22a 
 
 
 39 
 
 463 
 
 682 
 
 
 23 
 
 
 41 
 
 465 
 
 687 
 
 
 24 
 
 
 42 
 
 466 
 
 688 
 
 
 80 
 
 
 48 
 
 472 
 
 84 
 
 
 81 
 
 
 49 
 
 473 
 
 36 
 
 
 82 
 
 
 50 
 
 474 
 
 37 
 
 
 33 
 
 
 51 
 
 475 
 
 88 
 
 
 34 
 
 
 52 
 
 476 
 
 39 
 
 37 
 
 1 
 
 37 
 
 1 
 
 483 
 
 564 
 
 
 4 
 
 
 5 
 
 487 
 
 566 
 
 
 
 
 16 
 
 498 
 
 504 
 
 
 
 
 17 
 
 499 
 
 605 
 
 
 
 
 20 
 
 502 
 
 578 
 
 
 2 
 
 38 
 
 1 
 
 521 
 
 576, 577 
 
 
 3 
 
 
 3 
 
 523 
 
 609 
 
 
 3a 
 
 
 7 
 
 527 
 
 605 
 
 
 36 
 
 
 8 
 
 528 
 
 605 
 
 
 3c 
 
 
 9 
 
 529 
 
 606 
 
 
 3(2 
 
 
 10 
 
 580 
 
 608 
 
 
 3e 
 
 
 12 
 
 532 
 
 611 
 
 
 3/ 
 
 
 13 
 
 533 
 
 612 
 
 
 
 • 
 
 15 
 
 535 
 
 614 
 
 38 
 
 1 
 
 
 25 
 
 545 
 
 568 
 
 
 2 
 
 
 26 
 
 546 
 
 569 
 
 
 8 
 
 
 27 
 
 547 
 
 570 
 
 
 4 
 
 
 28 
 
 548 
 
 571 
 
 
 5 
 
 
 29 
 
 549 
 
 572 
 
 
 6 
 
 
 30 
 
 550 
 
 751 
 
 39 
 
 1 
 
 39 
 
 1 
 
 551 
 
 789 
 
 
 3 
 
 
 6 
 
 556 
 
 791 
 
 
 4 
 
 
 7 
 
 557 
 
 792 
 
 40 
 
 1 
 
 40 
 
 1 
 
 559 
 
 748 
 
 
 4a 
 
 
 3 
 
 561 
 
 798 
 
 
 4a 
 
 
 4 
 
 562 
 
 798 
 
 
 4a 
 
 
 5 
 
 563 
 
 798 
 
 
 7 
 
 
 7 
 
 565 
 
 753 
 
 
 8 
 
 
 8 
 
 566 
 
 754 
 
 
 9 
 
 
 9 
 
 567 
 
 752 
 
 
 10 
 
 
 10 
 
 568 
 
 755 
 
 41 
 
 1 
 
 41 
 
 1 
 
 569 
 
 766 
 
 
 2 
 
 
 3 
 
 571 
 
 764 
 
 
 3 
 
 
 4 
 
 572 
 
 765a 
 
 
 4 
 
 
 6 
 
 574 
 
 768 
 
 
 5 
 
 
 7 
 
 575 
 
 769 
 
 
 
 42 
 
 2 
 
 580 
 
 770 
 
 42 
 
 1 
 
 1 
 
 
 3 
 
 681 
 
 862 
 
¥ 
 
 XCVlll 
 
 COMPARATIVE TABLE OF RULES. 
 
 COMPARATIVE TABLE— Coiitintied. 
 
 KL'LKH SUl'. (;. 1H75. 
 AND AMKNDINd ItUI.KS. 
 
 RULES SUP. C. 
 
 IHKl. 
 
 ONT. RULKH 
 
 Order. 
 
 Kule. 
 
 Order. 
 
 Rule. 
 
 i 
 
 1 MiUBiii No. 
 
 582 
 
 Margin No. 
 
 42 
 
 2 
 
 42 
 
 4 
 
 867 
 
 
 8 
 
 
 5 
 
 j 583 
 
 868 
 
 
 4 
 
 
 6 
 
 584 
 
 878 
 
 
 5 
 
 
 7 
 
 585 
 
 874 
 
 
 
 
 
 8 
 
 1 58(i 
 
 858 
 
 
 7 
 
 
 9 
 
 587 
 
 875 
 
 
 8 
 
 
 10 
 
 588 
 
 876 
 
 
 10 
 
 
 12 
 
 590 
 
 888 
 
 
 11 
 
 
 13 
 
 591 
 
 889 
 
 
 12 
 
 
 14 
 
 592 
 
 898 
 
 
 13 
 
 
 15 
 
 593 
 
 890 
 
 
 14 
 
 
 16 
 
 594 
 
 891 
 
 
 15 
 
 
 17 
 
 595 
 
 868 
 
 
 1« 
 
 
 20 
 
 598 
 
 894 
 
 
 17 
 
 
 21 
 
 599 
 
 895 
 
 
 17 
 
 
 22 
 
 600 
 
 885 
 
 
 19 
 
 
 23 
 
 601 
 
 886 
 
 
 20 
 
 
 24 
 
 601 
 
 866 
 
 
 21 
 
 
 26 
 
 604 
 
 887 
 
 
 22 
 
 
 27 
 
 605 
 
 782 
 
 
 22 
 
 
 28 
 
 606 ( 
 
 Omitted as un- 
 
 
 24 
 
 
 29 
 
 607 1 
 
 necessary. 
 
 4> 
 
 1 
 
 
 32 
 
 610-11 
 
 cf . 926 
 
 
 10 
 
 
 34 
 
 612 
 
 of. 1180 
 
 4S 
 
 1 
 
 43 
 
 1 
 
 613 
 
 859 
 
 
 2 
 
 
 5 
 
 617 
 
 860 
 
 47 
 
 1 
 
 
 6 
 
 618 i 
 
 cf. 880-881 
 
 44 
 
 1 
 
 44 
 
 1 
 
 620 
 
 878 
 
 
 2 
 
 
 2 
 
 621 
 
 879 
 
 •jr. 
 
 2 
 
 45 
 
 1 
 
 622 
 
 935 
 
 
 3 
 
 
 2 
 
 623 1 
 
 936 
 
 
 4 
 
 
 3 
 
 624 
 
 937 
 
 
 5 
 
 
 4 
 
 625 
 
 939 
 
 
 6 
 
 
 5 
 
 626 
 
 944 
 
 
 7 
 
 
 6 
 
 627 
 
 945 
 
 
 8 
 
 
 7 
 
 628 
 
 946 
 
 
 9 
 
 
 8 
 
 629 
 
 947 
 
 
 10 
 
 
 9 
 
 630 
 
 1180 
 
 48 
 
 1 
 
 47 
 
 1 
 
 644 
 
 cf. 868 
 
 
 2 
 
 
 2 
 
 645 
 
 869 
 
 
 
 
 3 
 
 646 
 
 cf. 870 
 
 
 
 48 
 
 1 
 
 647 
 
 873 
 
 51 
 
 1 
 
 49 
 
 1 
 
 649 i 
 
 649 
 
 
 2a 
 
 
 5 
 
 653 1 
 
 651 
 
 r»i 
 
 4 
 
 
 8 
 
 656 
 
 652 
 
 52 
 
 1 
 
 50 
 
 1 
 
 657 
 
 1131 
 
 
 2 
 
 
 2 
 
 658 1 
 
 1133 
 
ONTARIO JUDICATURE ACT. 
 
 COMPARATIVE TABLE— Continued. 
 
 XCIX 
 
 
 KUr^EH SUP. C. 1875. 
 AND Amrndino Notes. 
 
 Order. 
 
 52 
 
 63 
 
 54 
 
 53 
 
 67(( 
 61 
 
 61 
 57 
 
 Uule. 
 
 8 
 
 4 
 
 5 
 
 6 
 
 6a 
 
 8 
 
 1 
 2 
 8 
 4 
 6 
 6 
 7 
 
 5a 
 
 RULES SUP. C. 1883. 
 
 Order. 
 
 50 
 
 52 
 
 53 
 
 54 
 55 
 57 
 
 Rule. 
 
 8 
 
 6 
 
 7 
 
 8 
 
 10 
 
 11 
 
 13 
 
 14 
 
 15 
 
 1 
 
 2 
 
 3 
 
 5 
 
 6 
 
 7 
 
 9 
 
 10 
 
 19 
 
 Margin No. 
 
 
 10 
 
 859 
 
 
 12 
 
 861 
 
 
 13 
 
 862 
 
 58 
 
 4 
 
 868 
 
 
 6 
 
 870 
 
 59 
 
 1 
 
 884 
 
 03 
 
 1 
 
 945 
 
 
 4 
 
 948 
 
 
 5 
 
 949 
 
 
 6 
 
 950 
 
 
 11 
 
 955 
 
 
 12 
 
 956 
 
 04 
 
 1 
 
 961 
 
 
 2 
 
 962 
 
 
 3 
 
 963 
 
 669 
 
 602 
 
 663 
 
 664 
 
 ,666 
 
 667 
 
 669 
 
 670 
 
 671 
 
 696 
 
 697 
 
 698 
 
 700 
 
 701 
 
 702 
 
 703 
 
 704 
 
 719 
 
 720 
 
 721 
 
 722 
 
 757 
 
 781 
 
 850 
 
 851 
 
 852 
 
 853 
 
 854 
 
 855 
 
 856 
 
 857 
 
 858 
 
 ONT. RULES. 
 
 Margin No. 
 
 1135 
 
 ii;u 
 
 . 132 
 1136 
 90 
 1120 
 043 
 644 
 045 
 525 
 526 
 527 
 479 
 629 
 631 
 632 
 633 
 1112 
 1113 
 1114 
 1115 
 847 
 207 
 1141 
 1142 
 1143 
 1144 
 1145 
 1146 
 1147 
 1148 
 1149 
 1150 
 1151 
 1153 
 585 
 821 
 cf. 219 
 cf. 216. 218 
 cf. 486 
 cf. 480 
 cf. 7 
 
 214 
 216 
 472 
 473 
 47P 
 
 l» ' 
 
 '- .'l 
 
 ^ 
 
COMPARATIVE TABLE OF KULE8. 
 
 COMPARATIVE TABLE— Continued. 
 
 RUIiBS SUP. C. 1875. 
 AND Amending Noafis. 
 
 RULES 3UP. C. 
 
 imi 
 
 ONT. RULES. 
 
 Order. 
 
 Rule. 
 
 Order. Rule. 
 
 Margin No, 
 
 Margin No. 
 
 67 
 
 4 
 
 1 
 64 4 
 
 964 
 
 483 
 
 
 6 
 
 5 
 
 965 
 
 484 
 
 
 
 
 6 
 
 966 
 
 477 
 
 
 6 
 
 
 7 
 
 967 
 
 485 
 
 
 6a 
 
 
 8 
 
 968 
 
 478 
 
 
 8 
 
 
 11 
 
 971 
 
 480 
 
 
 
 
 12 
 
 972 
 
 474 
 
 55 
 
 1 
 
 65 
 
 1 
 
 976 
 
 1170 
 
 
 3 
 
 
 6 
 
 981 
 
 1245 
 
 
 3 
 
 
 7 
 
 982 
 
 1247 
 
 R. S. C. 
 Aug. 1874 
 costs 0. 6. 
 
 f- 
 
 
 8-10 
 
 983-985 
 
 ( cf. 117«, 1174 
 1 508, 485, 1219 
 
 
 16 
 
 
 27 (18) 
 
 1002 
 
 457 
 
 
 17 
 
 
 (19 
 
 
 1193 
 
 
 18 
 
 
 20 
 
 
 1195 
 
 
 19 
 
 
 21 
 
 
 1204 
 
 
 21 i 
 
 
 23 
 
 
 1194 
 
 
 22a ! 
 
 
 24 
 
 
 1191 
 
 
 28 ! 
 
 
 25 
 
 
 of. 194, 197 
 
 
 It 1 
 
 
 (27) 
 
 
 1201 
 
 
 25 1 
 
 
 (28 
 
 
 1203 
 
 
 26 1 
 
 
 29 
 
 
 1214 
 
 
 28 
 
 
 37) 
 
 
 1220 
 
 
 30 
 
 
 39 
 
 
 1230 
 
 
 31 
 
 
 40 
 
 
 1231 
 
 
 32 
 
 
 (41 
 
 
 851 
 
 
 33 
 
 
 (42 
 
 
 853 
 
 S6 
 
 1 
 
 66 
 
 1 
 
 1003 
 
 447 
 
 
 2 
 
 
 3 
 
 1005 
 
 448 
 
 
 3 
 
 
 4 
 
 1006 -[ 
 
 Omitted as un- 
 
 69 
 
 
 
 
 
 necessary. 
 
 1 
 
 70 
 
 1 
 
 1037 
 
 442 
 
 
 
 
 2 
 
 1 
 
 1038 
 
 444 
 
ADDENDA. 
 
 Page 9 — After reference to Long v. Hancock, line 4, add " But seePoulin 
 V. Quebec, 9 S. C. R. 185, where the dismissal was without 
 costs." 
 
 " 11 — After reference to Peek v. Berry, line 2 from end, add " 14 App. 
 Cas. 337 ; Glanier v. Rose, 42 Ch. D. 436. The House of 
 Lords in Peek v. Demj, 14 App. Cas. 337, has held that in 
 an action of deceit the plaintiff must prove actual fraud, 
 and such fraud is proved when it is shown that a false repre- 
 sentation has heen made knowinf^ly or without belief in its 
 truth, or recklessly, without caring whether it be true or 
 false. A false statement made through carelessness, and 
 with reasonable ground for .lelinving it to be true, may be 
 evidence of fraud, but does not ncirssarily amount to fraud ; 
 such a statement, if made in the honest belief that it is true, 
 does not render the person making it liable in an action for 
 deceit." 
 
 " 15 — After the third paragraph from bottom, add : " An injunction to 
 restrain a breach by an infant of an apprenticeship deed 
 was refused: I)e Francesco v. llanium, 43 Cli. D. 165. 
 
 Add after the seventh paragraph : "The Court has jurisdiction 
 to declare a marriage void, but nothing short of the most 
 clear and convincing testimony will justify the interposi- 
 tion of the Court : Laioless v. Chamberlain, 18 Ont. 296." 
 
 -Line 7, add "LawlcKs v. Chamberlain, 18 Ont. 296." 
 Line 26, for " 22 Geo. 3" read "22 Geo. 2." 
 Line 44, add " lioblin v. McMahon, 18 Ont. 219." 
 
 -Add after paragraph 9 : "A post-nuptial settlement by a mar- 
 ried woman while an infar t, made under the sanction of the 
 Court, was held valid against creditors : Hemingway v. 
 Braithwaite, 61 L. T.N. S. 224." 
 38 — After sub-section 2, add : " See post s. 55, p. 68." 
 43 — At the end of paragrap'- 5 after reference to Jamieson v. 
 Laing, add: "Similarly there is inherent jurisdiction to 
 strike out a defence as frivolous, vexatious and abuse of pro- 
 cedure: Reichel v. McGrath, 14 App. Cas. 665." 
 
 45— Line 3, after " 86 " add " and 262." 
 
 20- 
 
 27 
 
cu 
 
 ADDENDA. 
 
 i-i 
 
 Paok 46— Line 1, after McDougall v. Hall, add " Byrne v. Brown, 22 Q. B. 
 D. 666." 
 Add at the end of the third paragraph—" The compromise 
 cannot be set aside on summary application, an action 
 is necessary, Emeris v. Woodward, 43 Ch. D. 185." 
 " 47— Add as a note to Section 53 (1)—" See also Patrick v. Simpson, 
 24 Q. B. D. 128." 
 Add after second note to Rule 53 (1) : " See Coyne v. Broddy, 
 
 15 Ont. App. 159." 
 Add as a paragraph nnder clause 4 : " Where mortgajjees had 
 joined in a lease to defendants, and the mortgagor was seek- 
 ing an injunction in aid of alleged rights under the lease, 
 the mortgagees were added as co-plaintiffs : Goodrich v. 
 Everplyn Coal Company, W. N. 1889, 152." 
 " 49 — At the end of 3rd paragraph from the end add : — "See also 
 Harding v. Harding, 17 Q. B. D. 442." 
 After second paragraph add : " A broker to whom shares have 
 been transferred for the purpose of sale may, where rival 
 claims are set up to them by a third party, call on the latter 
 and the transferor to interplead ; Rohinmn v. Jenkins, 24 
 Q. B. D. 167." 
 " 54 — After the fourth paragraph add "I?e Marter v. Gravenhiirst, 18 
 
 Ont. 243." 
 " 55 — Add to the third paragraph : " See also Hepburn v. Patton, 20 
 Gr. 597, refered to infra page 281, Parkes v. St. George, 10 
 Ont. App. 496, at page 542." 
 After paragraph 2 add, "An injunction to restrain a breach 
 by an infant of an apprenticeship deed was refused: De 
 FranccKco v. Barnum, 43 Ch. D. 165." 
 56 — In the ninth paragraph, for "Mason" rf ad "Masson," and at the 
 end of the paragraph add, ''Newsov v. Pender, 27 Ch. D. 43." 
 
 Add after the tenth paragraph: "An injunction against 
 infringement of a patent was refused where, though there 
 had been an infringement, it had been discontinued several 
 . years before action, and there was no intention or probabil- 
 ity of a renewal of the wrongful user, Proctor v. Bayley, 38 
 W. U. 100. An injunction should not be granted ex parte 
 after appearance except in cases of urgency. If the defen- 
 dant has appeared, that fact should always be mentioned to 
 the Judge on an ex parte motion for an injunction : Harrison 
 V. Cockerell 3 Mer. 1, and where it is net, the plaintiff will in 
 any event be made to pay the costs of a motion to dissolve 
 an injunction so granted : The Mexican Co. v. Maldonado, 88 
 L. T. Jour. 238, and see Walton v. Henry, 26 0. L. J. 164." 
 
ADDENDA. 
 
 cm 
 
 Pa(JE 59 
 
 Add at the foot of the page : " But a mortgagee is not as -f 
 right entitled to a receiver under all circumstances at the 
 expense of the equity of redemption ; Re Prytherch, Pry- 
 therch v. Williams, 42 Ch. D. 590 ; 38 W. R. 61, where it was 
 considered not just and convenient to grant a receiver to a 
 mortgagee in possession, who desired to give up possession." 
 
 (iO— Second line from the end : Instead of " equitable execution " 
 read " attachment of debts." 
 
 64— Add after paragraph five : " So also the writ may issue where 
 the person, in whose custody the child had been, has illegally 
 parted with the custody of the child, (especially if this be 
 done to evade the process of the ('ourt) ; it may be an answer 
 to the writ that it is impossible to comply with it, but such 
 impossibility must be clearly made out, Eeg. v. liarnardo, 
 Gossage's asc. 24 Q. B. D. 283." 
 
 67 — To second paragraph add : "But not so as to affect the running 
 of the Statute of Limitations: Chard v. Rae, 18 Ont. 371." 
 In paragraph six after reference to "Re Radcliffe" add : "Vibart 
 V. Coles, 24 Q. B. D 364." 
 
 68 — Add as a note to section 55, see " p. 52 ante, ss. 2, p. 38.' 
 
 71 — At the end of fourth paragraph from the end add : "See articles 
 in 25 C. L. J., p. 597, and 88 L. T. Jour. 40, 123 ; 82 L. T. 
 Jour. 297." 
 
 72 — Eighth line from bottom for " district " read " distinct." 
 
 74 — Add after third paragraph from the end : " So an order direct- 
 ing an executor to pay costs of an administration action, on 
 the ground that he has caused the litigation by refusal to fur- 
 nish accounts, is appealable, as he is entitled to costs unless 
 the right is displaced by misconduct, and whether there was 
 misconduct is the subject of appeal: Re Puf', Lewis v. 
 Pritchard, 57 L. T. N. S. 858." 
 
 77 — Add at the end of third line from the end : " An order after 
 final judgment in regard to a set-off of costs payable under 
 the judgment: Blakey v. Latham, 43 Ch. D. 23." 
 
 78 — Add as a note to section 69 : " The Court has no power to vary 
 an order in Chambers, except in the manner provided by 
 the Act or Rules, e.g., under this section, or under Rules 536 
 or 846 : see Atty.-Gen. v. Llewellyn, 58 L. T. N. S. 367." 
 
 81 — After reference to Re Gabourie, in line 24, add: '^ Re Clayton 
 Milli Manufacturing Co., 37 Ch. D. 23 . Esdaile v. Pnim, 4Q 
 Ch, D. 620." 
 Add to first paragraph : "Leave was refused where the object 
 of the appeal was to fix executors with interest on money 
 which they had invested, and as to which a loss had 
 occurred : Coates v. McGlashau, 2 Chy. Ch. 218." 
 
 82 
 
WW 
 
 CIV 
 
 ADDENDA. 
 
 Page 85— Line 4, instead of lb., read, "Eraser v. Johnston, 12 P.R. 113." 
 ♦' 87— Instead of the third paragraph, read : " Where a trial is com- 
 menced with a jury, the judge may, even after the evidence 
 is taken, or during its progress, dispense with, and discharge 
 the jury, and try the case himself : Marks v. Windsor, 17 
 Ont. 719 ; see also Denmark v. McConaghy, 26 C. P. 563 ; 
 Adair v. Wade, 9 Ont. 15." 
 
 After the fifth paragraph, add: "Where at the trial both parties 
 treated an issue as one which should be tried by the Judge, 
 and not by the jury, and the plaintiffs obtained a rule nisi 
 for a new trial on the ground that the Judge had decided the 
 issue wrongly, they were not allowed to amend the rule so as 
 to state that the Judge should have left the issue to the jury : 
 Australian, etc. v. Smith, 14 App. Cas. 318. 
 
 As to the effect of withdrawing a jurror : see Thomas v. Exeter 
 Elying Post. 18 Q. B. D. 882. 
 
 In cases in County Courts an order made by the Judge before 
 trial, as to trial of the action with, or without a jury, is not 
 appealable under section 42 of the County Coui'ts Act: 
 McPherson v. Wilson, 13 P. R. 339." 
 
 After reference to Manning v. Thompson, add : "But it 
 must be a judgment which finally and conclusively (subject 
 only to appeal) settles the existence of the debt, so as to 
 become res judicata between the parties : Nouvion v. Free- 
 man, 15 App. Cas. 1." 
 " 89 — Add as a note to section 87: " See Dreyfus v. Penman Guano 
 Company, 42 Ch. D. 66 ; 61 L. T. N. S. 180." 
 Add as a note to section 84 : "A Judge is not bound to submit 
 questions in writing to the jury : Lett v. St. Lawrence, 1 Ont. 
 645." 
 
 " 90 — After note to Rrile 88 add : " When the judgment merely 
 declares a charge of money upon land without imposing any 
 personal liability it would appear not to bear interest unless 
 expressly ordered : Lynch v. Skerrett, 5 Ir. lOq. 494." 
 
 " 96— Add at the end of the page : " In Raymond v. Little, 13 P. E. 
 364, it was held by Robertson J. under the circum- 
 stances of that case that on a reference to a Referee 
 under section 101, the report di*^. not become absolute, like 
 the report of a Master, after being filed fourteen days under 
 Rule 848, but that as soon as the report was made, the party 
 in whose favour it was, might move for judgment thereon, 
 and that, on the motion coming up, the report should be 
 produced, accompanied by the evidence taken before the 
 Referee, and the opposite party would then be heard against 
 
ADDENDA. 
 
 OV 
 
 the motion, and it was open to bim to take any objection to 
 the report, and the Court could adopt it wholly or partially, 
 and if adopted, enforce it as a judgment. 
 The contrary has since been decided by McMahon, J., in Hunt 
 V. Darling, 28 Feb., 1890, where it was held that a motion 
 against a report could not be heard, notice of appeal not 
 having been given within 14 days from the filing of report." 
 Page 119- Add after section 137: "See Re Smith's Trusts, 18 Ont. 327,where 
 money being rightly in Court as proceeds of settled estate, 
 payment of the fund out of Court on the joint application 
 of the life tenant and an infant entitled in remainder, in 
 order to avoid the expenses of the Accountant's office inci- 
 dent to the holding of a fund in Court, was refused." 
 
 " 127 — Line 14, for " of appearance " read " after appearance." 
 
 " 128— Line 7, after Building and Loan Co. v. Heimrod, add "19 
 C. L. J. 254 ; 3 C. L. T. 361." 
 
 " 146 — Line 3, for " and which " read " which power." 
 
 " 148- Add as note to Rule 41 : " Under 52 Vict. c. 36, b. 46 (O), a 
 Judge of the County Court has now the same jurisdiction as 
 a Judge of the High Court to try the right of a municipality 
 in the County of such Judge, to a Reeve or Deputy Reeve or 
 Reeves, or the validity of an election, or appointment of 
 Mayor, Warden, Reeve, Deputy Reeve, Alderman or Coun- 
 cillor. The practice in such proceedings in the County 
 Court is to be the same, as nearly as may be, as on similar 
 proceedings in the High Court : see Rules 1038, et seq. The 
 Judgment of the County Judge in such cases is appealable 
 to a Judge of the High Court, as in cases of appeal from the 
 Master in Chambers." 
 
 ^' 162— Add to paragraph 3: "Beamish v. Farmer, Ir. R. 1 Eq. 466; 
 Ashb: rn V. Macguire, 2 W. &. T. L. Cas. 317." 
 
 " 164— After third paragraph add : " Where a covenant for payment 
 of a debt is given by a principal and surety, payments by the 
 principal on account of the debt which will prevent the 
 Statute of Limitations from running in his favour will also 
 prevent the Statute running in favor of the surety, though he 
 be no party to the payments : In re Frishy, Allison v. Frisby, 
 43 Ch. D. 106 ; but see Paxton v. Smith, 18 Ont. 178." 
 
 " 1G7— At the end of first paragraph add : " Affirmed 42 Ch. D. 237 ; 
 61 L. T. N. S. 741." 
 
 " 178 — Add as note to Rule 60 : "There is no rule of practice rendering 
 it necessary in every case for the sufficiency of publication 
 of notices of creditors under Imp. Act 22 & 23 Vict. c. 34, s. 
 29, to have an advertisement in the Times or other London 
 daily papers in addition to the Gazette : Re Bracken, Doughty 
 v. Tuwnson, 38 W. R. 48 ; 61 L. T. N. b. 631." 
 J.A. H 
 
m 
 
 W' ^i 
 
 CVl 
 
 ADDENDA. 
 
 rM;K 184— At foot of page add : "A report or certificate intended to be 
 used as evidence against an adverse party should not be 
 made ex parte : lie liyan v. Simoutoii, 13 P. R. 299." 
 " 18.'j— Add after the second paragraph : " No certificate should be 
 settled where it is intended to be used in evidence, except in 
 the presence of, or on notice to, all the parties concerned : 
 Ityan v. Sivwuton, 13 P. R. 299." 
 .' 187— Add to second paragraph from the end : •' And v^ithin one 
 month from the date of the ruling, irrespective of the date 
 of the certificate of such ruling : Maclennan v. Gray, 12 P. K. 
 431." 
 " 194 — Insert after reference to Davies v. Wood, line 9 f? )m the end : 
 "Where there was such a condition, and it app' .red that the 
 purchasers objected to a prior contract for sale appearing 
 on the registry, and they offered to give time for the removal 
 of their objection, if the vendor would give an indemnity 
 against the prior contract, and they threatened action if this 
 was not accepted, the vendor, in good faith rescinding, was 
 held entitled to do so : Woolcott v. Pei/tjie, 15 App. Cas. 42 ; 
 see also lie 163rd Starr Bowhett liuildinii Society v. Sibvrn, 
 61 L. T. N. S. 34(5." 
 " 195— For " Rale 89 " in fourth paragraph read " Rule 98." 
 " 19(1 — In first line of note to Rule 96 for " special " read " standing." 
 " 199 — Add to the fourth paragraph : "And where a good holding title 
 is shown, but not one which the Court would force on a pur- 
 chaser, if the purchaser refuses to complete, he cannot under 
 such circumstances recover the deposit : Re Turner <& Thomas, 
 88 L. T. Jour. 81." 
 
 " 202— At end of fifth paragraph after "57 L. T. N. S. 7 '..li 
 
 " 14 App. Cas. 429 ; 61 L, T. N. S. 702." 
 " 204— Under the heading " Taxes " add: "Taxes imposed i-n' K. 
 S. O. c. 184, s. 612 (9), for local improvements, wht. che 
 vendor has been a party to the petition, may form an 
 incumbrance which he is bound to remove ; Cumberland v. 
 Keams, 18 Ont. 151." 
 -Add as a note to Rule 109 : " The omission from the abstract 
 of a document, whose contents sufficiently appeared by a 
 document abstracted, was held to be no objection to the 
 abstract : Re Khsxcorth d- Tidy, 42 Ch. D. 23." 
 -For " Sanders v. Reg." read "Sanders v. Malsbury.' 
 -To fourth line from bottom add, " see ante p. 62." 
 -Line 7, after reference to "48 L. T. N. S. 695," add : " But see 
 In re Frytherch, Prytherch v. Williams, 42 Ch. D. 590, svjmi 
 page 59." 
 
 209- 
 
 210- 
 212- 
 21()- 
 
ADDENDA. 
 
 evil 
 
 Paoi; an- 
 
 al!) 
 
 '2'2(i 
 
 -Add after first paragraph : " But see cotitra Limoln Paper 
 Mills Co. V. St. Catharine* and Niajjara Central Ry. Co., 20 
 C. L. J. 155." 
 At the end of Hne 3 add "117." After the second paragraph 
 add : " A solicitor of the committee is not a proper surety, 
 Re Gibson, 13 P. R. 359." 
 
 -Add after paragraph : " Where a mortgagee had sold under 
 liis power of sale, but owing to a defect in the advertisement 
 had been compelled to allow the purchaser compensation, it 
 was held * that he was chargeable as against the mortgagor 
 with any loss occasioned by the misdescription, Tomlin v. 
 Lnce, 41 Ch. D. 573, in appeal, 43 Ch. D. 191. 
 Where the mortgage provided that the total amount to be 
 recovered by the mortgagee ' under these presents ' should 
 not exceed £900, payments made by the mortgagee for rent 
 and insurance while in possession were held to be recover- 
 able, though the aggregate amount of the claim exceeded 
 £900 : White v. City of London Brewery Co., 42 Ch. D. 237." 
 Under heading " Consolidation of Mortgages," after the first 
 reference to Johnston v. Reid, add, " Smitli v. Smith, 18 Ont. 
 205." 
 Add to the third paragraph ; " For costs not connected with 
 the loan transacted : Field v. Hopkins, 62 L. T. N. S. 102." 
 
 -Under heading " Interest " add : " Interest may be allowed on 
 costs which have been ordered to be added to the plaintiff's 
 security, from the date of taxation : Eardley v. Knight, 41 
 Ch. D. 637." 
 " 229— In the second paragraph, after "S^ John \. Rykert., 4 Ont. 
 App. 213," add " Grant v. People's Loan db Deposit Co., 26 
 C. L. J. 119 ; Arbuthnot v. Hunsilall, 62 L. T. N. S. 234." 
 
 Under heading " Tender " add : "A tender is not equivalent to 
 payment, and if refused, the mortgagor's remedy is an 
 action for redemption ; detinue for his title deeds will not 
 lie : Bank N. S. W. v. O'Connor, 14 App. Cas. 273." 
 -Add as a note to Rule 185 : " See Re Smith, 18 Ont. 327." 
 -Add as a note to s. 191 : " See R. S. O. c. 157, s. 4." 
 -Line 25, after reference to " Re Blake," &dd, " Re Solicitor,^i L. 
 T. N. S. 842," and at the end of the paragraph the follow- 
 ing : " Where a solicitor has been suspended for misapplica- 
 tion of money, he will not necessarily be struck off on being 
 subsequently convicted of embezzlement in reference to the 
 same transaction : Re Solicitor, 61 L. T. N. S. 842." 
 Note to Rule 202 : Essery v. G. T. Railway Co., is now reported 
 in 13 P. R. 219. 
 
 228- 
 
 252- 
 
 254 
 
 259- 
 
CVlll 
 
 ADDENDA. 
 
 I'- 
 
 
 r 
 
 ■i'm 
 
 "1 ■ 
 
 f - , 
 
 if 1; 
 
 ! 1 
 
 ! 1' 
 
 Paoe 270— Line 9 from the end, for " United Telephone Co. v. Foster," read 
 " United Telephone Co. v. Tasker." 
 
 a 274— Add aa a note to Rule 233 : " Absence from tbe Province of the 
 Judge in whose name writs are tested, does not render it 
 improper to teste writs in his name : Brett v. Smith, 1 P. R. 
 309." 
 
 i< 277— Paragraph 7, after the second clause read : " See also St. Louis 
 V. O'Callaghan, 13 P. R. 322. The Judge exercises a discre- 
 tion, however, where the time has e3q)ired, and where the 
 Statute of Limitations," etc. 
 
 •' 281— Add as a note to Rule 243 : " Provision has now been made by 
 53 Vict., c. 39, for the discharge of a lis pendens where the 
 plaintiff does not promptly proceed with his action." 
 
 " 283— Alter (4) in fourth paragraph to (5), and add as (4) : " The 
 plaintiff's claim is for $213.90, balance due for sawing wood 
 Yj the plaintiff for the defendant : Villenetwe v. Waite, 12 
 P. R. 505." 
 
 •• 286— Add as a note to Rule 248 : " A separate action for possession 
 should rot be brought when other remedies against the 
 mortgagor are claimed; Hay v. Mc Arthur, 8 P. R. 321." 
 
 " 292— Add as a note to Rule 254 : " See Carty v. London, 13 P. R. 285, 
 in note to item 17, tariff of costs, page 1071." 
 
 " 294 — Add as a note to Rtile 258 : " Where a plaintiff signs judgment 
 against a defendant in ignorance that he is an infant, it is 
 discretionary with the Court whether such judgment shall 
 be set aside : Fumival v. Brooke, 49 L. T. N. S. 134. 
 
 Service on the Ofi&cial Guardian of a petition under The 
 Quieting Titles Act is good service upon infants who are 
 required to be notified : Re Murray, 13 P. R. 367." 
 
 " 296— After reference to " Russell v. Camhefort," in Rule 205, add : " 23 
 Q. B. D. 526." 
 
 " 297 — After reff.rence to " Hapi/in v. Comptoir," etc., in note to Rule 
 267, p.ad : " 23 Q. B. D. 519." 
 
 •' 302 — Before the last paragraph add : " Parties may contract them- 
 selves out of the Rules respecting service, and thus a foreign 
 corporation may contract that process, etc., may be served 
 upon a person within the jurisdiction, and the appointment 
 of such person is irrevocable until some other agent is 
 appointed : Tharais Sulphur, etc. Co., v. SociAJ Industrielle, 
 etc. des Metaux, 38 W. R. 78." 
 
ADDENDA. 
 
 OIX 
 
 327 -i 
 
 338- 
 
 337- 
 338- 
 
 Paok 325— Add to the last paragraph but one, after reference to " Trice v. 
 Robimon " : " But letters of administration obtained pendente 
 lite will not relate back to the commencement of the action, 
 BO as to bar the running of the Statute of Limitatipns: 
 Chard v. Ilae, 18 Ont. 371." 
 
 Add after fourth paragraph under Riile 309, after reference to 
 " Goodrich v. Marsh " : " But where a mortgagee was a trustee 
 of the mortgage moneys, and had become bankrupt, it was 
 held that the centuis qjie trustent were necessary parties to a 
 foreclosure action by a prior mortgagee : Francis v. Harrison, 
 43 Ch. D. 183." 
 
 -Add after first paragraph : " In a suit for foreclosure, where a 
 trustee was defendant and was bankrupt, the cestuis que 
 trustent were added: Francis v. Harrison, 43 Ch. D. 183." 
 And after the next paragraph add : " And see Francis v. 
 Harrixon, supra," 
 
 -After the reference to " Taylor \. Taylor" in thirteenth line from 
 bottom, add : " But see Swayne v. Follows, 18 Q. B. D. 585, 
 where security for costs on an appeal by next friend was 
 ordered." 
 
 -Line twenty-seven, for " 3 Q. B. D," read " 8 Q. B. D." 
 
 -Line nine, Moore v, Jackson, is now reported 16 Ont. App. 431. 
 
 At the end of the first paragraph add : " 13 P. R. 242, and it 
 must be property with respect to which she might reason- 
 ably be deemed to have contracted ; where, therefore, at the 
 date of the contract the only free separate property con- 
 sisted of the clothes of herself and her children, purchased 
 with the income of property subject to a restraint on antici- 
 pation, it was held that she should not be reasonably deemed 
 to have contracted with reference to such clothes : Leak v. 
 Driffield, 24 Q. B. D. 98." 
 33!)— Instead of third paragraph, read : " The judgment has been said 
 not to subject the married woman to a ' personal ' liability, 
 but only to a "proprietary" liability ; per Bowen, L.J., in 
 Scott V. Morley, 20 Q. B. D. at p. 128; but in Holtby v. 
 Hodgson, 24 Q. B. D. 105, it ,was said that this was only a 
 short and compendious way of saying that the judgment 
 must be executed against her property, not her person : see 
 also McLeod v. Emijih, 12 P. R. 45. 
 
 With regard to all her property, other than that settled to her 
 separate use, with a restraint on anticipation, a judgment 
 debt operates against a married woman just as it would 
 against an unmarried woman: Holtby v. Hodgson, supra, 
 at p. 107." 
 
 Line 34, Spahr v. Bear is now reported 18 Ont. 70. 
 
if" 
 
 W i 
 
 \'m '§'\ 
 
 l-m 
 
 iri 
 
 ^i 
 
 ex 
 
 Paok 348—1 
 
 35«- 
 
 ADDENDA. 
 
 -Line 21, after reference to " Clegii v. noirhnid," add : " Or an 
 alleged cestui que tnmt of the deceased : Re Brnchen, Doiiijlitji 
 V. Towwon, 43 Ch, D. 1 ; 01 L. T. N. 8. 531, nor." 
 " 350— Line 14, after reference to " Humphreys v. lluwphreys, 3 P Wm. 
 250," add : " But letters of administration obtained pendrule 
 lite will not relate back to the commencement of the action, 
 so as to bar the running of the Statute of Limitations : 
 Chard V. llae, 18 Ont. 371.' 
 
 " 351— After the reference to " Scarf v. Jardiue," add : " See also liohb 
 Murray, 10 C. L. T. 110. 
 Adavis V. Watson Manufacturing Co., is fnrtlier rep<irted in 
 appeal, 1« Ont. 2." 
 
 " 358— Add before the heading " Adding defendants " : "An amend- 
 ment by adding a plaintiff ought not to be allowed so as to 
 prejudice the defendant's right to set up the Statute of 
 Limitations as against the added party : see Hudson v. 
 Femyhough, 61 L. T. N. S. 722." 
 -Add to second paragraph of note to Rule 324 (a) : " But it has 
 been held to apply when a defendant alleges in his pleading 
 that the contract sued on by the plaintiff was made jointly 
 with another, and the plaintiff under this Rule was compelled 
 to add as a defendant the alleged joint contractor: Rohh v. 
 Murray, 26 C. L. J. 155." 
 Add as the last paragraph : " Where a defendant is added, the 
 action is deemed to have commenced agninst him only from 
 the time he was added : see St, Louis v. O'Callaghan, 13 
 P. R. 322." 
 
 -After ninth paragraph add: "Where a defendant claimed 
 indemnity against a co-defendant, but the co-defendant did 
 not plead to the defendant's pleading and no order was 
 applied for, oi made, before the trial of the case of the plain- 
 tiff, for the trial of the question between the co-defendants, it 
 was held that, after judgment in favor of the plaintiff, 
 no order should be made for trial of the question between 
 the co-defendants : Mead v. Etohicoke, 13 P. R. 341." 
 
 -liine thirteen : Blore v. Ashby, is now reported 42 Ch. D. 682. 
 
 -Middle of page : Blore v. Ashby, is now reported in 42 Ch. D. 
 682. 
 
 -After second paragraph add: "And see ante p. 
 cited in addenda." 
 Line seven from bottom : After " Burroivs " 
 Heney v. Kerr, 10 C. L. T. 6!)." 
 " 396— Add as a note to Rule 359 : " The making of a motion to stay 
 proceedings on payment of principal and interest is not 
 equivalent to a tender : Kinnaird v. Trnllope, 42 Ch. D. 610." 
 
 364- 
 
 371- 
 373- 
 
 387- 
 
 217 and case 
 
 innert "and 
 
ADDENDA. 
 
 CXI 
 
 Pa(IB 400— Before third para>{raph from the bo. torn add : " A statement 
 of claim in an action for defama';ion for words charging the 
 plaintiff with an offence un'ler K. S. C. c. 168, hb. 26 or 58 
 need not aver special damage, but it is otherwise when the 
 offence charged is a violation of ss. 27 or 59: lioiUley v. 
 llarrii, 18 Ont. 405." 
 
 >' 401— Add as a note to Rule 36i) {(/) : " Where further time for a 
 month " peremptory" was given, this was held to mean that 
 the pleading must be delivered within the specified time, 
 unless the order itself be expressly altered by any subsequent 
 order: Falck v. Axhelm, 38 W. R. 196." 
 
 *' 409— Add after the fourth paragraph : " Where the plaintiff's claim 
 was dismissed for default in compliance with an order, the 
 defendant was allowed to proceed with his counter-claim by 
 motion for judgment as by default of pleading thereto by 
 the plaintiff : Higgim v. Scott, 21 Q. B. D. 10, in note to Ruh- 
 Til, page 619." 
 
 -' 417 — Line eleven, after Incin v. Brown, insert " 12 P. R. 6.19 suprn, 
 page 409." 
 
 " 418 — Line 14, after reference to " IVard v. Kerr," add : " But see 
 contra, Wright v. Wrujht, 13 P. R. 268." 
 Add as a note to Rule 381, after reference to " Graves v. Terry " .- 
 " In Ontario it has been held that the delivery of a reply 
 after the three weeks does not in itself entitle the opposite 
 party to move to set it aside, and even if strictly the right 
 to move exists, the pleadings should not in general be set 
 aside, but the time should be extended : Wright v. Wright, 
 13 P. R. 268." 
 
 " 421 — After the second paragraph add : " Where a plaintiff objected 
 at the trial of the action to the reception of evidence under 
 a defence which was demurrable, but to which he had not 
 demurred, and the evidence was rejected, a new trial was 
 granted with leave to defendant to amend ; and costs were 
 ordered to abide the result : Switzer v. Laidman, 18 Ont. 420. 
 
 Line 9, after reference to " Saunders v. Stull," add : " See also 
 Beatty v. HaUan, 4 Ont. App. 239, at p. 249." 
 " 425— At the end of the last paragraph but one, add : " But see contra, 
 Wright v. Wright, 13 P. R. 2(\H, where the delivery of a 
 pleading after the time had expired, was held to be not an 
 irregularity." 
 
 *' 426 — Lloyd v. Ward, in last paragraph but one, is now reported 13 
 P. R. 238. 
 
 " 431— Add at the end of the sixth paragraph : " Knight v. Engle, 61 
 L. T. N. S. 780." 
 
cxu 
 
 ADDENDA, 
 
 t- t. !l 
 
 Paok 435— After the reference to Rule 411 in third note under Rule 40», 
 add : " Or the incorporation of a corporate party : Rttle 412.'» 
 
 " 448— After the fourth paragraph add : " Contributory neglij,'ence 
 cannot be set up under this plea, but must be specially 
 pleaded : Doan v. Michigan Central, 10 C. L. T. 88 ; 25 C. L. 
 J. 164." 
 
 " HT^Edei'aiH v. Cohen, in paragraphs six and seven, is now further 
 reported in appeal, 43 Ch. D. 187. 
 Add to the sixth paragraph: "43 Ch, D. 187, or where the- 
 (vdded claim would take away a defence, such as of the 
 Statute of Limitations, which had accrued, and would change 
 the substantial right of the parties: Hmhon v. Fernyhough, 
 61 L. T. N. S. 722, 
 
 " 449— After the tifth paragraph, insert : " There is inherent jurisdic- 
 tion to strike out a defence as frivolous, vexatious and abuHe 
 of procedure, e.g., where it attempts to re-try, in anothtr 
 form, a question already decided against the defendant : 
 Re.icM V. McGmth, 14 App. Gas. 605." 
 
 Add, at foot of page: "Hudson v. /'■•nii//i«Hf/;i,61L.T.N.S.722." 
 " 459 — Add as a note to Rule 443 : "An order setting aside proceedin;^9 
 must be served promptly, or it will be deemed to have been 
 abandoned : Mohonn Bank v. Dillfihuunh, 13 P. 11. 313." 
 
 " 460— Add after eighth paragraph : " An amendment was not allowed 
 where it would defeat the Statute of Limitations : IIud»un 
 V. Femyhoujih, 61 L. T. N. S. 722." 
 
 " 466— At the end of note to Rule 4.'58, add : McCready v. Ilvunessy, ',) 
 P. R. 489, and Dimcell v. Coakti, 36 Ch. D. 441 ; 36 W. li. 6r>. 
 
 " 466— At end of second paragraph, add, " 13 P. R. 219." 
 " 471— Add at the end of the last clause but one : " If payment be 
 made to the client, notwithstanding notice given by the 
 solicitor not to pay till his costs are satisfied, the solicitor 
 to tlie extent of his lien is entitled to recover the amount 
 paid against the party paying : Rons v. Buxton, 42 Ch. D. 190." 
 
 " 472— Line 23, add to reference to " Rofg v. Buxton " : " 42 Ch. D. 190." 
 " 473— Line 2, for " Baker v. Hemminfi," read " Barker v. Hemminijr 
 " 476— At the end of second paragraph add : " 5 Ont. 634 ; Re Ostrom i.lt 
 Township of Sydney, 15 Ont. App. 372." 
 
 " 479— In sixth paragraph, after reference to Veale v. Automatic 
 Boiler, etc., Co., add : " and Re Davis and York, 10 C. L. T. 8." 
 
 " 481— Add after reference to Baker v. Oakes, line 26 : " Nor can the 
 Court under this Rule shorten the time limited by a statute, 
 and not by these Rules : Re Sweetman and Gos/ield, 13 P. R. 
 293.' 
 
ADDENDA. 
 
 CXlll 
 
 Page 482— Add after the fifth paragraph : " This Jitile only empowers 
 the Court to abridge or enlarge periods of time fixed by the 
 liulei, and does not extend to a case where a period is 
 limited by statute : lie Swaetntan and Go*Jiel(l, 18 P. R. 298." 
 Add after the sixth paragraph : " St. Loui* v. (rCallughnn, 1» 
 P. R. 322, and the time for moving against and award has 
 been extended: Re Oliver and Scott'$ Arbitration, 43 Ch. D. 
 810." 
 " 487— Add after paragrnph nine : " A second examination of tlie 
 same party will not be allowed except under the most 
 special circumstances : Thorburn v. Brown, 8 P. R. 114, 
 and upon special motion on notice : Laird v. Stanley, (> 
 P. R. 322.' 
 At the eiidof sixth paragraph arid : " But see Leach v. G. T. liy., 
 13 P. R. 380 ; where the Judges of the Court of Appeal 
 were not agreed to whether a conductor was examinable for 
 discovery as an officer of defendants ; also Knight v. G. T. 
 liy. Co., I'd P. R. 386 ; and Foicle v. C. I'. liy. Co., 20 C. L. J. 
 189 ; Leach v. G. T. liy. Co., 13 P. R. 388." 
 
 " 491 — In eighth paragraph after " liadiferow v. G. T. liy. Co., 13 P. 
 R. 132," add " and in the case of a plaintiff corporation see 
 Central Press Association v. American Press Association, 13 P. 
 R. 353.' 
 
 " 494— Add as a note to Rule 501 (6) : " A special examiner has no 
 power to authorize any other person to take down the 
 depositions in shorthand, and where the examiner proposes 
 to proceed with the examination in that way, the person 
 proposed to be examined may refuse to submit to the exam- 
 ination : liradt v. liradt, 13 P. R. 271." 
 
 " 497 — In the last paragraph after the reference to " Dyke v. Stephens " 
 insert: "see also Mayor v. Collins, 24 Q. B. D. 361." 
 
 " 498— Add to the eleventh paragraph : "See also Shelly v. llussey, 8 
 P. R. 250." 
 
 " 508 — Add after the fifth paragraph : " Statements made to a 
 reporter in the employment of the proprietor of a newspaper 
 are not privileged : Davis v. Shepstone, 55 L. T. N. S. 1." 
 
 " 51(1 — Add as a note to Rale 525 : " Where a motion lias been made 
 and refused, it cannot be renewed without leave : Reg. v. 
 Richardson, 13 P. R. 303. Formerly a motion for a writ of 
 luibeas corpus was an exception, but see now Re Hall, 8 Ont. 
 App. 135." 
 
 After reference to Re *^ Peck <£• Ameliashurg," fourth line from 
 the end, add : " Re. Colenutt d Colchester, 13 P. R. 253." 
 
CXIV 
 
 ADDKNDA. 
 
 Paoi 517— After the first pHvasraph add : " The Court has no power under 
 Rule 485 to shorten this period of four clear days, as it » 
 fixed by the Statute, and the powers given by Rule 485 only 
 extend to periods of time fixed bv the Riilen : Re Steeetmaii 
 and Goslicld, 13 P. R. '2!t3. Query— whether in computinf; 
 tlie four clear days. Rule 480, providinj; for the horrs for 
 effecting certain services applies, the notice of motion hchi^ 
 the first proceeding in the matter." 
 
 Add as note to Rule 526: "It is only by the indulgence of the 
 Court that a second application is permitted or entertained 
 where a previous one has been refused : Rei/ v. Richardxou, 
 13 P. R. 303 ; ned ride Payne v. Newherrij, 2fi C. L. J. 153 " 
 
 Add to the fourth note under Rule 527 the following: "But 
 orders setting aside proceedings must be served promptly, 
 or they will be deemed to have been abandoned : Molnon's 
 Bank v. Dillnbaiiflh, 13 P. R. 312." 
 
 -At the end of sixth paragraph, add, '' Magum v. Magurii, 10 
 P. R. 570." 
 
 -Add as a note to Rule 533 : " Where leave is given the fact 
 should be stated in the notice of motion : Dawaon v. Beeson, 
 22 Ch. D. 504." 
 
 -Line 4, before Blain v. Blain, insert : " Wright v. Wright, 13 
 P. R. 2ft8." 
 
 Add, at the end of the first paragraph, " Wright v. Wright, 13 
 P. R.2(i8." 
 
 -Add as a note to Rule5i<i : " An order for arrest signed by the 
 Judge granting it and not by the Clerk in Chambers, was 
 held by Ferguson, J., to be a nullity : Si. Croix v. MtLaugh- 
 tin, 10 C. L. T. 135." 
 
 -Add as a note to Rule 550 : " This Rule does not prevent any 
 arrangement for settlement of an action, entered into and 
 acted upon by litigants, from being sanctioned and enforced 
 by the Court, and so enables them to refer matters in differ- 
 ence between them to arbitration: Maidonell v. Baird, 
 13 P. R. 331." 
 
 -The reference to " Exchange, etc. \ Auk. of Land Financierx " 
 should be " flop Exchange, etc." 
 
 -Add at the end of note to Rule 562 : " But see Sierich v. Wood- 
 cock in note to Rule 800." 
 
 -tiine 8, after "supra" insert " Thomnon v. Gye, 13 P. R. 273." 
 
 -Add after second paragraph : " But an order for e.xamination 
 for discove.-y before delivery of the statement of claim 
 ought not to be granted except under special circumstances ; 
 Thomson v. (hje, 13 P. R. 273. In dirty v. Loudon, 10 
 C. L. T. 3, the costs of an examination were allowed, though 
 the evidence was rejected at the trial as inadmissible." 
 
 519- 
 o2V 
 
 521- 
 526- 
 
 527—/! 
 
 528- 
 
 535- 
 
 538- 
 530- 
 
ADDENDA. 
 
 cxv 
 
 Pao) 
 
 541 
 543 
 
 544—.' 
 
 558 
 
 At the end of note to Rule 570 add : " But see contra, Ferri» v. 
 Eyre, 18 Ont 3!)5." 
 
 Insert as a note to Rule 576 : " Affidavits in reply were rejected, 
 where they only contained matters supporting the original 
 case: lu re Ferris and Eyre, 18 Ont. 395 ; 10 C. L. T. 8." 
 
 After Rule 490, in line 20, add: "Bolkow \. Foster, 7 P. R. 388; 
 Wihon V. Cowan, 19 C. L. J. 140 . 3 C. L. T. 216 ; Lymkey 
 V. C. P. Ry. Company, 4 C. L. T. 93." 
 
 Add after the first paragraph : " For some strong observations 
 as to the duty of commissioners to see that deponents under- 
 stand the affidavits they are making, see Dourke v. Davis, 38 
 W. R. 170 ; 88 L. T. Jour. 103." 
 
 Add as a note to Rule 614 : " The Common Pleas Division has 
 given directions (23rd December, 1889) that to secure uni- 
 formity of practice in the matter of exhibits marked, but 
 not attached to affidavits, that Division of the Court would 
 follow the practice in vogue in the other Divisions, and such 
 exhibits will not be required to be filed, and where handed 
 in for the use of the Court, will be delivered out again with- 
 out any order." 
 
 Vfter reference to Day's C. L. P. Act, line 17 from the end, 
 add : " Udy v. Stewart, 10 Ont. 591 ; Kramer v. Waymark, 
 L. R. 1, Ex. 541." 
 
 \ dd after paragraph 9 : "After the death of a judgment debtor, 
 an order for a re /er of his estate cannot be made without 
 representation of the deceased's estate : Re Shephard, Athim 
 v. Shephard, 43 Ch. D. 131." 
 
 Sixth paragraph, third line, for " may " read " might." 
 
 After first reference to Hawkesley v. Rradshaw, add : " Harper v. 
 Davis, 19 Q. B. D. 170." 
 'M) — Add to the second paragraph : " But see Buckton v. Higgs, 4 
 Lx. D. 174; Gretton v. Mees, 7 Ch. D. 839, where the plain- 
 tiff WHS given costs up to the time of payment into Court, 
 and defendant costs subsequent thereto. The Judge at the 
 trial doubtless has a discretion under lii'le 1170 to give 
 defendant the whole costs of the action. In Small v. Lyon, 
 10 P. R. '222, where judgment was given for defendant with 
 costs, it was held that the Taxing Officer had no alternative 
 but to tax the defendant all his costs." 
 
 A Id as a note to Rule 635 : " In an action for an injunction to 
 restrain a nuisance, and for damages, the defendants denied 
 liability and paid money into Court in satisfaction of the 
 claim for damages. The plaintiff accepting the money in 
 satisfaction of the claim for damages, was held not entitled 
 to tax his costs, as the entire cause of action was not satis- 
 fled: Moon V. Dickinson. 88 W. R. 278." 
 
 5fi0 
 
 504 
 
 5.18 
 
CXVl 
 
 ADDENDA. 
 
 Paoe 670— Add to the fourth paragraph under Rule 637 : " The costs are 
 not taxable on any higher scale than if the judgment had 
 been recovered for the amount received out of Court : Chick 
 V. Toronto Electric Light Co., 12 P. B. 58 ; and see Rule 1174." 
 
 Add as a note to Rule 637 : " Query, whether the plaintiff i» 
 entitled to costs under this Rule, where the money is paid in 
 with the plea of tender: see Grijfitlis v. Yttradyfodwg, 24 
 Q. B. D. 307." 
 " 571 — Add after the second note to Rule 640 : " Where a defence sets 
 up a tender, it is not essential that the tender should be 
 alleged to have been made before action, if the fact may be 
 inferred from the other statements of the defence : Griffith 
 V. Ystradyfmbog, 24 Q. B. D. 307." 
 
 " Where to a claim for money had and received to the plain- 
 tiff's use, the defendant pleaded tender before action, and 
 paid into Court the sum tendered in full satisfaction, it was 
 held in England that the plaintiff could not take the money 
 out in satisfaction, and tax his cost as of course, but the 
 plea of tender raised an issue, which remained unsettled on 
 the record, and in respect of which the defendants were 
 entitled to go to trial : lb." 
 
 Dele " When paid in, further money will now be subject to 
 the same rules as in other cases where money is paid in," 
 in note to Rule 640. 
 
 " 573— Add after the fifth paragraph: "A letter saying, 'We shall 
 discontinue this action, and take out of Court the amount 
 paid in, and tax our costs. We will send formal notice to- 
 morrow, is not a notice of discontinuance within the Rule: 
 Moon V. Dickiiiiion, 38 W. R. 278." 
 
 " 578— Add as a note to Rule 647 : " Where the plaintiff gives notice 
 of trial, but neglects to enter the action for trial, the action 
 cannot be dismissed under this Rule, and defendant's 
 remedy is to enter the action himself, under Rule 6(i.S: 
 MrDougnld v. Thompxon, 13 P. R. 256 ; Simpson v. Murruij, 
 10 C. L. T. 137 ; 26 C. L. J. 189." 
 
 After note to Rtde 648 add : " On a motion to dismiss an action 
 for non-attendance of a plaintiff to be examined, the plain- 
 tiff's undertaking to attend and submit to examination, was 
 not accepted where the action was not a meritorious one : 
 Denham v. Gooch, 13 P. R. 344, 
 
 " 580— Add at the end of third paragraph, under Rule 652, after refer- 
 ence to Sijers v. Pickerxville : "But actions will not be stayed 
 unless the issues are substantially the same : Niagara Grape 
 Co. v. Nelles, 13 P. R. 179. 258." 
 
ADDENDA. 
 
 CXVll 
 
 Page 580— After reference to the " Never Denpair " add : " Girvin v. Burke, 
 18 P. R. 216." 
 
 .. 581— Add after tenth paragraph : " In determining who is to have 
 the conduct of a consolidation of two cross-actions, the main 
 indicia to be regarded are, which action was first began, 
 upon whom does the chief burden of proof lie, and which 
 action is the more comprehensive in its scope : Girvin v. 
 Burke, 13 P. R. 216." 
 
 '■ 582— Line 11— Niaaara Grape Co, v. Nelles is now reported in appeal, 
 13 P. R. 258. 
 
 <> 583— Line 22— add at the end of the paragraph : "And actions against 
 newspapers for libels : 50 V. c. 9, s. 5 (O.)." 
 
 4. 585—" C. P. Railway Company v. Manior," in note to Rule 653 (a), 
 should be " C. P. Railway Company v. Manion." 
 
 " 586— At the end of the second note to Rule 655 add : " But it is to 
 be read in connection with sec. 52 (12) of the Act which pro- 
 vides that multiplicity of proceedings is to be avoided : 
 Village of Fort Erie v. Fort Erie Ferry Ry. Co., 10 C. L. T. 117. 
 Line 8 : Shaw v. Crawford, is now reported 13 P. R. 219. 
 
 " 590— Add at the end of notes to Rule 663 : "It has now been decided 
 in Ontario that where the plaintiff gives notice of trial, but 
 neglects to enter it, the defendant may enter it himself under 
 this Rule, but cannot move to dismiss under Rule 647 : 
 McDougald v. Thompnon, 13 P. 1{.266; Simpson v. Murray, 
 26 C. L. J. 189 ; 10 C. L. T, 137." 
 
 " 594— Price v. Manning, in note to Rule 674, is now reported 42 Ch. D. 
 372. 
 
 " 596— Add at the end of notes to Rule 676 : " In action for false arrest 
 and malicious prosecution, arising out of a false informa- 
 tion laid by defendant, a certified copy of the information 
 being objected to, leave was given to put in afterwards the 
 original, and an exemplification of the judgment of acquittal : 
 Hamilton v. Broatch, 17 Ont. 679." 
 
 " 597 — Bank of Hamilton v. Stark, in note to Rule 681, is now reported 
 13 P. R. 13. 
 
 " iJ'JS — In paragraph nine, after the reference to Davies v, Felix, add : 
 " Rocke V. McKerrow, 24 Q. B. D. 463." 
 
 " 60G —Add at the end of last paragraph but one : " See also Ontario 
 Bank v. Burk, 12 P. R. 561." 
 
 " 616 — Line 29, between "signed" and " within" insert: "If defen- 
 dant does not deliver his defence," 
 
 " 619 — At the end of the fourth paragraph add : "Faithful v. Woolley, 
 43 Ch. D. 287." 
 
% 
 
 
 i si 
 
 
 i 
 
 
 i^ii 
 
 
 ' 1 
 
 
 XCVIU 
 
 Page 623 
 
 " ()2(i 
 
 " ()-i7 
 " ('.'2!) 
 
 032 
 
 047 
 04!> 
 
 654 
 655 
 000 
 
 " 601- 
 
 002- 
 
 Pa(»k 062 
 
 ADDENDA. 
 
 -Add to paragraph (d) : "And defendant may answer the motion 
 to show there is a defence, by cross-examination of the 
 plaintiff on his affidavit : Kingsley v. Dunn, 13 P. R. 300." 
 -Add to the second paragraph : "See also DeRojax v. Michael, 79 
 L. Jour, yj, where, besides a money claim, the plaintiff 
 asked for the restoration of a steamship, and an injunction 
 to restrain defendant from parting with it." 
 
 -At the end of paragraph 4, add : "Canadian lianJi of Commerce v. 
 Woodstock, 13 P R. 242." 
 
 -Add after the first paragraph: "But defendant is entitled 
 ex dehito juntitiic to cross-examine the plaintiff on his afli- 
 davit : Kinydeij v. Dunn, 13 P. K. 300." 
 Add at the end of fourth paragraph : " and Kingsley v. Dunn, 
 13 P. R 300." 
 
 -After second paragraph add; "The dismissal of a motion 
 under this Bule for not complying with the provisions of 
 Ihile 1251, is no bar to a subsequent motion when the pro- 
 vision of that Rule have been complied with by the plaintiff; 
 Payne v. Newberry, 26 C. L. J. 155; 10 C. L. T. 111." 
 
 -liine 12— For " Canadian Loan " read " Canadian L. d- E." 
 -Insert as note to i{«/e 764 ; "From the pronouncing of tlie 
 judgment it becomes an effective judgment, so that it miiy 
 be attached, though tlie judgment is not formally entered ; 
 Holtby V. Hodgson, 24 Q. B. D. 103." 
 
 -After " record " in second note to Rule 780, add : " Of the 
 Court." 
 
 -In seventh paragraph after quotation from Lawrie v. Lees, 
 
 add: " See also Balfour v. Drummond, 4 Manitoba 467." 
 -Add as a note to Rule 789 ; " Where the case has been tried by 
 jury, and a party's only remedy is a motion for a new trial, 
 he must apply to the Divisional Court under this Rule : see 
 Rocke v. McKerrow, 24 Q. B. D. 463, and notes to Rule 798. ' 
 In eighth paragraph : For " Cook v. G. T. Ry. Co.,' read 
 
 " GooM V. O. T. Ry. Co., 17 Ont. 721." 
 Line 9, after reference to O'Sullivan v. Lake, add: "16 Ont. 
 
 App. 711." 
 Line 17, add : " Welh v. Lindop, 15 Ont. App. 695." 
 Line 5, after 135, add : " Pracd v. Graham, 24 Q. B. D. 53; 3« 
 W. R. 103 ;" and after the fourth paragraph : " See St. Denin 
 v. Baxter, 15 Ont. App. 387." 
 
 After the sixth paragraph insert : " As to what may be con- 
 sidered in estimating damages in an action for libel : see 
 Praed v. Graham, 24 Q. B. D. 53." 
 
ADDENDA. 
 
 CXIX 
 
 667— In the third paragraph, after the reference to Yetts v. Foster, 
 insert : " or after leaving the case to the jury the Judge 
 thinks on reflection that there was no evidence to go to the 
 jury and directs judgment to be entered for defendant: 
 liocke V. MvKerrow, 24 Q. B. D. 463." 
 
 669— To paragraph 3 of note to Rule 800, add : " 13 P. R. 260." 
 
 Rule 801 : Reg. v. Armstrong, is now reported 13 P. R. 306. 
 
 670— After reference to Campbell v. Cole, add : " St. Denis v. Baxt /, 
 15 Ont. App. 387." 
 
 672- After "but," in line 16, add : "it has been recently held, by the 
 Court of Appeal in England, that the discretion of the Coui't 
 is not limited by any such general rule or practice : Attorney- 
 General v. Kmerfon, 24 Q. B. D. 56 ; 38 W. R. 102." 
 
 Sixth line from the end : Re Palmer is also reported 22 Ch. D. 
 
 88. 
 
 675— After the third note to Rule 807, add : "Rt Gibson, 13 P. R. 359." 
 
 681 — Add to the notes to Rule 823 : "Where no written judgment has 
 been delivered by the Court appealed from, a statement of 
 the grounds assigned therefor should be obtained from the 
 reporter, or from notes of counsel who attend to hear judg- 
 ment, and should be inserted in the appeal book : Blackley v. 
 Keiiney, 16 Ont. App. 522." 
 
 &JO—Re Christie, in note to Rule 946, was followed in [Villiainson v. 
 Ellis, 10 C. L. T. 111. 
 
 692 — Add as a note to Ru, 847, at the end of the page : " Where a 
 party gives notice of motion, and neglects to set down the 
 motion, the opposite party may be entitled to the costs of 
 appearing on return of the notice to show cause against the 
 motion : Reg. v. Armstrong, 13 P. R. 306." 
 
 696— At the end of notes to Rule 850, add : " Where an appeal was 
 unnecessary no costs were given : Fouchier v. St. Louis, 13 
 P. R. 318." 
 
 697 — After the second paragraph add : " On appeals from a 'I'axing 
 Officer the Court will not interfere with his discretion as to 
 quantum and quoties of fees, and this rule covers any question 
 of distribution or allotment of charges among different 
 cases or branches of a case : Conmee v. N. American Contract- 
 ing Co., 10 C. L, T. 117." 
 
 Add at the end of paragraph 7, after reference to Re Nation : 
 "Stroushurg v. Sanders, 38 W. R. 117." 
 
mm^ 
 
 cxx 
 
 ADDENDA. 
 
 Page 698— After eighth paragraph add : " Leave to appeal was refused 
 though the question sought to be raised was one of public 
 importance and turned on the construction of a statute, 
 because the Privy Council did not think there was any 
 reasonable doubt as to the correctness of the construction 
 which had been adopted : Montreal v. Seminaire de St. Sul- 
 pice, 14 App. Cas. 660. 
 Where an appellant obtained leave to appeal on the ground 
 that he desired to raise a particular question of great and 
 general importance, he was not permitted on the appeal to 
 contend that no such question arose, and that the case turned 
 upon a question of fact on which the Court below was in 
 error : St. Johns v. Central Vermont Ry. Co., 14 App. Cas. 
 590." 
 •' 702— Fourth line from bottom for " Re Tevidale " read "Re Ticidale." 
 *' 708— Add as a note to Rule 867 : " This Rule was held not to apply 
 where a solicitor ordered to pay into Court money obtained 
 out of Court by him, failed to do so. The solicitor may in 
 such case be committed 'as for contempt, notwithstanding 
 R. S. O. c. 67, s. 6 : Pritchard v. Pntchard, 18 Ont. 173." 
 
 " 716— After the third paragraph add : " See Young v. Ridgetown, 18 
 Ont. 140." 
 
 " 719 — After reference to Hyde v. Greenhill, middle of page, add: 
 " followed in Pratt v. himan, 43 Ch. D. 175." 
 
 *' 724— After flrat paragraph add : " but see now, Tlie Crediton' Relief 
 Act, (R. S. O. c. 65) s. 28." 
 
 " 726— Add as a note to Rule 894 : "A sale of land after the expiration 
 of a year from the delivery of the writ, without its being 
 renewed, where there was no inception of the execution prior 
 to the expiration of the year, is invalid: Daley v. Gehl, 18 
 Ont. 132." 
 
 " 728— Line 2, after U. C. Q. B. 292, add : " Daley v. Gehl, 18 Ont. 
 132." 
 
 Line 7. for " Rule 4 ; R. S. 0. c. 1, s. 18 (15)," read " 51 Vict, 
 c. 2, s. 4 (O) " 
 
 " 738— Third line add : " 13 P. R. 310." 
 
 " 740— Line 9, for " 215 " read " 245." 
 
 Add as a note to Rnle 933 : " There is no express provision 
 for committal of employees ordered to attend for examina- 
 tion under Rule 928; and see Central Press Association v. 
 American Press Association, 15 P. R. 353 " 
 
 " 741— The reference to Lloyd v. Wallace, third line from the end 
 should be "9 P. R. 336." 
 
ADDENDA. 
 
 CXXl 
 
 Page 741— At foot of page add: " Under The CredUon Relief Act (R. S. O, 
 c, 65 8. 37), the Sheriff may attach debts due to an execution 
 debtor." 
 " 742— Before the heading " Attachment of Debts," add : "Proceedings 
 to attach a judgment may be taken aftar the pronouncing, 
 but before the actual entry, of the judgment debtor's judg- 
 ment : Holtby v. Hodgson, 24 Q. B. D. 103. 
 
 A judgment against a married woman, to be executed against 
 her separate estate, is a judgment enabling the judgment 
 creditor to attach debts due to the married woman : Holtby v. 
 Hodgson, supra." 
 
 yth paragraph : Young v. Young, is now reported 10 C. L. T. 
 17 ; and Canada Cotton Co. v. Parmalee, is now reported in 
 appeal, 13 P. R. 308. At the end of the paragraph add : 
 "Butsee26C. L. J. 65." 
 •< 744 — Sixth paragraph, after reference to Stuart v. McKim, add : 
 " But see contra, Prout v. Gregory, 24 Q. B. D. 281." 
 
 " TiB— Holtby v. Hodgins, in sixth paragraph, is now reported 24 
 Q. B. D. 106, Canada Cotton Co. v. Parmalee is now reported 
 in appeal, 13 P. R. 308, Young v. Young is now reported 10 
 C. L. T. 17. 
 Add the following paragraph : "A dividend payable under the 
 administration in bankruptcy of the estate of a person 
 dying insolvent to a creditor of the estate : Pront v. Gregory, 
 24 Q. B. D. 281." 
 
 " 747 — .\fter reference to Wills v. Luf, under "Equitable Execution," 
 add : 'lie Shephard, Atkins v. Shephard, 43 Ch. D. 131." 
 
 " 748 — Add after third paragraph : " The proper form of equitable 
 relief can only be granted where proper parties are before 
 the Court : lie Shephard, Atkins v. Shephard, 43 Ch. D. 131." 
 
 " 749 — Add at the end of second paragraph, " Taylor v. Gallagher, 
 before Robertson, J., 7th January, 1890." 
 Add after reference to Wardrope v. Canadian Pacific Railway 
 Co., in note to iiu/e 936, "Re Combined Weighing and Advertis- 
 ing Machine Co., 43 Ch. C. 99." 
 " 757 — Add as a note to Rule 955, "As to arbitration, see Rule 650." 
 " 7&1— Chard v. Rae, in the last paragraph, is now reported 18 Ont. 
 371. 
 Line 30 : For "Fowler " read "Foster." 
 
 Add after reference to Vivian v. Westbrook : "Re Finch, 23 
 Ch. D. 267, Re Ross, 18 C. L. J. 11." 
 " 762— After the fourth paragraph add : " A judgment for adminis- 
 tration of the estate of a deceased person operates as from 
 its date, not merely in favour of a creditor, but in favour also 
 J.A. I 
 
CXxii ADDENDA. 
 
 of the estate, i. «., of the personal representative and other 
 creditors, when the estate is insolvent, in regard to a aet-ofT 
 against the creditor's demand, and the judgment prevents 
 the further running of the Statute (21 Jao. 1, c. 16) against 
 the set-off: lif BaWtrd, Lovell v. Forrenter, 88 L. T. Jour. 
 379." 
 
 Page 7C2— Add after fifth paragraph : " A personal claim barred as to 
 personal estate by the six years limitation may be preserved 
 by a charge of debts on land as against real estate, so as to 
 become liable to be barred only after ten years : Re Stephem, 
 Wurburton v. Stephens, 43 Ch. D. 39." 
 The last line, for " execution " read " executor." 
 
 •• 763— Add as a note to Rule 966 : "An application may be made on 
 behalf of an int&nt : lie Hill, Hawse v. Hawse, 10 C. L. T. 87." 
 
 " 776— Add as a note to Rule 983: "Notice of proceedings in the 
 Master's office should be given to the parties, though they 
 have not appeared on the motion for the administration 
 order : Re Pattison, Jackson v. Matthews, 12 Gr. 47." 
 
 " 778--Third paragraph; before Young v. Wright, insert "Alacdonnell 
 v. McGillies, 8 P. R. 339 ; Bennetto v. Bennetto, 6 P. K. 145." 
 
 " 783— Add as a note to Rule 994 : " A sale was authorized to provide 
 for the support of a tenant for life and infant child entitled 
 in remainder: Re Smith, 4 Ont. .')18." 
 
 " 786 — After first paragraph add: "As to leases made by an infant, 
 see Lipsett v. Perdue, 26 C. Is. J. 154." 
 
 " 795 — Add as a note to third paragraph: "Service on the Official 
 Guardian is good service upon infants who are required to 
 be notified : Re Murray, 13 P. R. 367." 
 
 " 803— Add after seventh paragraph : " When an infant is required to 
 be served with notice of proceedings under The Quietiiuj 
 Titles Act, service may be effected on him by serving notice 
 on the Official Guardian : Re Murray, 13 P. R. 367." 
 
 " 813— After the first paragraph, add: "Formerly the relator was 
 required to attach to the writ of summons a statement 
 setting forth what is now required to be alleged in the notice 
 of motion." 
 
 " 832 -Add as a note to Rule 1051 : " Under the concluding words of 
 this Rule an appeal lies to a Divisional Court of the 
 High Court from any order made under this Rule by a 
 County Judge in a County Court action : Elliott v. McCuaig, 
 10 C. L. T. 118 ; 26 C. L. J. 189." 
 
 " 849— See Moore v. Wallace, 13 P. R. 201. 
 
ADDENDA. 
 
 CXXUl 
 
 PAftE 878— Eighth line from bottom, Dominion S. d- 1. Co. v. Kilrny is now 
 reported 15 Ont. App. 487. 
 
 .1 g79_At foot of page add : " But a claimant cannot set up a jiu 
 tertii against the execution creditor : Ilicliards v. JenkivB, 18 
 Q. B. D. 451 ; but a transferee of the equity of redemption 
 in goods seized under execution can maintain title to them 
 as against the execution creditor of his transferor ; Uaher 
 V. Martin. 24 Q. B. D. 272." 
 
 « g^i To third paragraph from the bottom add: " And of a broker 
 
 to whom shares have been transferred for the purpose of 
 sale, to which a rival claim is set up : Robinson v. Jenkins, 
 24Q.B. D. 167." 
 
 >i i^83_Add to the first paragraph : "But he was held entitled to costs 
 of appearing on a motion by a claimant for a final order 
 barring the execution creditor for default in giving security 
 for costs : Oray v. Alexaniler, 10 P. R. 358." 
 
 » |^94_At the end of last paragraph add : " And in the case of third 
 parties, see Blore v. Anhby, 38 W. R. 141 " 
 
 Add to the third paragraph the following : " And where the 
 Judge gives no directions as to a set-off of costs by defendant, 
 (such as is contemplated by Rule 1172, in actions tried by a 
 iury,) the Taxing Officer has no power to allow such set-ofF : 
 Truax v. Di.ron, 13 P. R, 279." 
 
 " 901— Add after the second note under Rule 1172 : " Where an action 
 to enforce Mechanics' 1 iien was brought in the High Court, 
 which might have been brought in the County Court, and 
 the Court gave plaintiff Division Court costs, but did not 
 adjudicate as to whether the defendant should set off High 
 Court costs, it was held that the Taxing Officer had no power 
 under this R-ile, the case being tried without a jury, to 
 allow the set-off, but a substantive order allowing such set- 
 off was made by the Court under Rule 781 : Trua.x v. Dixon, 
 13 P. R. 279." 
 
 " !»02— Line 19 : Danaher v. Little is now reported 13 P. R. 361. 
 
 " 914— After the reference to Barrett v. Campbell, insert, " So also a 
 contractor, and the assignee of his former partner in the 
 contract, were held entitled to sever: Melbourne v. City of 
 Toronto, 13 P. R. 346." 
 
 " 915— After the reference to Barker v. Hemming,m note to Rule 1204 
 insert: " nor to judgments on a claim, and counter-claim, 
 where the latter is in the nature of a cross-action so as to be 
 treated as a distinct judgment: Link v. Bttsh, 10 C. L. T. 
 135." 
 
i^^mm 
 
 OX XIV 
 
 ADDENDA. 
 
 Paoe 932 -Add after seventh paragraph : "Any one of the several cestuig 
 que trmtent may, in the discretion of the Court, obtain an 
 order under this section for taxation of bills of costs of a 
 solicitor employed by the trustees in connection with the 
 business of the trust estate : Sanderson v. Porter, 16 Ont, 
 App. 565." 
 
 " 940 In fourth paragraph, or " Rule 1240 " read " Rule 1248." 
 
 " 945— After third paragraph add : " and actions by insolvent persons 
 against Justices of the Peace and other public officers : see 
 53 Vict. cap. 23 (0.)" 
 
 " 948— .Vdd to note to Rule 1251 : " Where a plaintiff against whom 
 an order for security for costs had been obtained, moved to 
 set it aside and also for judgment under Rule 739 without 
 paying $50 into Court under this Rule, the motion was 
 refused with costs, and Doer v. Rand, 10 P. R. 105, and 
 A nglo American Co, v. Rowlin, lb., 391, where held no longer in 
 force : Payne v. Newberry, 13 P. R. 354 ; 26 C. L. J. 122, 155; 
 10 C. L. T. 88." 
 
 " 950- Add as note to Rule 1260 : " In Millujan v. Hills, 13 P. R. 350 ; 
 it was held by Rose, J., that an appeal lies from an order 
 of the Master in Chambers under this Rule, The point 
 was raised in the Divisional Court, but its decision was not 
 necessary." 
 
 " 1069 — Add the following: "Costs incurred after the death of the 
 client were disallowed, though the solicitor was not aware of 
 the death : Pool v. Pool. 61 L. T. N. S. 401." 
 " The usual agency terms" entitle the agent to disbursements 
 out of pocket, and to half the profit charges, whether the 
 country solicitor is paid by bis client or not : Ifard v. 
 Lawson, 43 Ch. D. 353. 
 
 Objection cannot be taken by a party ordered to pay costs, 
 that the opposite party's costs are those of a firm of solici- 
 tors, one of whose members is not an admitted or certificated 
 solicitor : Scott v. Daly, 12 P. R. 610." 
 " 1099— At foot of page add: " An action lies at the suit of a witness 
 for his fees, if not duly paid by the* party subpoenaing him : 
 Chamberlain v. Sionehouse, 24 Q. B. D. 113." 
 
THE JUDICATURE ACT. 
 
 REVISED STATUTES OF ONTARIO. 
 CHAPTER 44. 
 
 An Act respecting the Supreme Court of Judicature. 
 
 Short title, s, 1. 
 
 iNTKltPKETATION, 8. 2. 
 
 Constitution of Supreme Court, 
 SB. 3-19. 
 Supreme Court continued, s. 3. 
 
 Judges, s. 3. 
 Judgment by Judge who has re- 
 signed, 8. 4. 
 Court of Appeal continued, s. 5. 
 Judges, ss. 5, 6. 
 Judges may hold Assizes, etc., 
 
 88. 8, 9. 
 Divisional Courts, s. 11. 
 Quorum, ss. 10, 12. 
 Judge whose decision appealed 
 
 from not to sit, s. 13. 
 Judgment in absence of a' 
 Judge who heard cause, ss. 
 14, 15. 
 Presiding Judge, s. 16. 
 Sittings, 8. 17. 
 Precedence of Judges, s. 7. 
 Oath of Judges, ss. 18, 19. 
 
 JCBISDICTION OF HlOH COUKT, SB. 
 
 20-42. 
 
 JCBISDICTIOX OF CoURT OF ApPEAL, 
 BS. 43-51. 
 
 Rules of Law, ss. 52-54. 
 
 Notice to be given to Minister of 
 Justice and to Attorney-Gen- 
 eral BEFORE ANT AcT DECLARED 
 
 invalid, s. 55. 
 
 Sittings and distribution of busi- 
 ness, sb. 5G-G4. 
 
 Appeals, ss. 65-72, 
 
 Limitation of time fob appealing, 
 ss. 73-75. 
 
 Trial and Procedure, ss. 76-84. 
 
 Interest, ss. 85-88. 
 
 Sittings fob Trials, ss. 89-95. 
 
 Trial of Superior Court Cases 
 IN County Courts, and of Coun- 
 ty Court Cases in High Court, 
 ss. 96-100. 
 
 Official Befebees and Assessors, 
 ss. 101-104. 
 
 Rules of Court, sb. 105-110. 
 
 Officers and Offices, ss. 111-156. 
 
 County Courts and Judges, s. 157. 
 
 Transfer of Causes from County 
 AND Division Courts to High 
 Court, s. 158. 
 
 Miscellaneous, ss. 159-163. 
 
 HEK MAJESTY, by and with the advice and consent of 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows : — 
 
THE JUDICATURE ACT. 
 
 TITLE. 
 
 Short titio. I, This Act may be cited as " The Judicature Act." 44 V. 
 c. 5, s. 1. 
 
 INTERPRETATION. 
 
 intorprota- 2, Where the words following occur in this Act and in 
 
 tirrms! the Rules, made thereunder or under The Ontario Judm- 
 
 4 ( Vict. c. 5.^^^^^ ylr^ 1881, they shall be construed in the manner 
 
 hereinafter mentioned unless a contrary intention appears. 
 
 1. " Rules of Court " shall include forms. 
 
 2. "Cause" shall include any action, suit, or other 
 original proceeding between a plaintiff and a defendant. 
 
 3. " Action " shall include suit and shall mean a civil 
 proceeding commenced by writ, or in such other manner as 
 may be prescribed by Rules of Court, (a) 
 
 (a) The original clause had the additional wordB " and docs not include a 
 criminal proceeding by the Crown."' 
 
 An interi)leader proceeding by a sheriflF is not an action but a proccnhug 
 in an action ; HanUyn v. BcUckii, (5 (.1. B. D. 63 ; Coulson v, SpiirK, !t T. K. 
 491. 
 
 "Action" may include a i)etition ; see Be Atkin's EnUite, 1 Ch. I). H2; 
 Finney v. Himie, 4 q.B. D. 102 ; lie iJi/nevor .t- Dkffriin Collieries, W. N. 1«78, 
 1!)'J ; and in P]nglan(l includes proceedings by originating suinmonH ; Jic Fuwmtt 
 aallund V. Burton, 30 Ch. D. 231. 
 
 4. "Matter" shall include every proceeding in the 
 Court not in a cause. 
 
 5. "Plaintiff" shall include every person asking any 
 relief (otherwise than by way of counter-claim as a defen- 
 dant) against any other person by any form of proceeding, 
 whether the same be taken by action, suit, petition, 
 motion, summons, or otherwise. 
 
 6. " Petitioner" shall include every person making any 
 application to the Court, either by petition, motion, or 
 summons, otherwise than as against any defendant. 
 
 7. "Defendant" shall include every person served with 
 any writ of summons or process, or served with notice of, 
 or entitled to attend any proceedings. 
 
 8. " Party " shall include every person served with 
 notice of, or attending, any proceeding, although not named 
 on the record. 
 
 9. " Pleading " shall include any petition or summong, 
 and shall also include the statement in writing of the claim 
 
 The above definitions a 
 
CONSTITUTION OF SUPREME COURT. 
 
 3 
 
 or demand of any plaintiff, and of the defence of any defen- sea a. 
 (laut thereto, and of the reply of the plaintiff to any 
 counter-claim of a defendant. 
 
 "SninmoiiM" in tliiH cliiUHe docs not mean a writ of HuninumH : Murray v. 
 
 SUllluUKOII, I'J il li. D. ()(». 
 
 10. "Judgment " shall include decree. 
 
 11. '• Order" shall include rule. 
 
 12. "Oath" shall include solemn affirmation and statu- 
 tory declaration. 
 
 Tho above dcfinitionn are ull taken from the EngliHh .Tud. Act 1873, hbc, 100. 
 
 13. " Proper Officer " shall, unless and until any Eule to 
 
 the contrary is made, mean an officer to be as- 
 certained as follows : — 
 
 (a) Where any duty to be discharged under thfs 
 
 Act or under Rules of Couvt is a duty which 
 has been discharged by any officer, such 
 officer shall continue to be the proper officer 
 to discharge the same, until otherwise pro- 
 vided by Rule ; 
 
 (b) Where any new duty is under this Act or 
 
 under the Rules aforesaid to be discharged,, 
 the proper officer to discharge the same shall 
 be such officer having previously discharged 
 analogous duties, as may from time to time 
 be directed to discharge the same, in the case 
 of an officer of the High Court, not attached 
 to any Division, by the President of the 
 High Court, and in the case of an officer 
 attached to any Division, by the President of 
 the Division. 44 V. c. 5, s. 91. 
 
 Till' above interijretation of "proper ofKcer" is taken from English R. Sup. 
 C, 1875, Order 03. 
 
 m 
 
 CONSTITUTION OF SUPREME COURT. 
 
 3. — (1) The Supreme Court of Judicature for Ontario at supreme 
 present existing is hereby continued, and all commissions, judicature 
 rules, orders and regulations granted or made, in, by, or *'°°**""'^^' 
 respecting the former Court of Queen's Bench for Ontario, 
 the Court of Chancery for Ontario, and the Court of Com- 
 mon Pleas for Ontario, or the Supreme Court of Judicature, 
 
TW 
 
 4 THE JUDICATURE ACT. 
 
 Sec. 3. the Court of Appeal, and the High Court of Justice, or the 
 Judges or officers thereof, existing and xu force when this 
 Act takes effect, shall remain in force until altered or 
 rescinded or otherwise determined. R. S. 0. 1877, c. 39, 
 S.2; 44 V.e.5, s. 3 (1). 
 
 By the Jud. Act of 1881 (sec. 3) the then existing Courts, viz., the Court 
 of Aripeal, tl.o Court of Queen's Bencii, the Court of Chancery, and the Court 
 of Common Pleas, were united and consolidated together, and constituted 
 one Supreme Court of Judicature for Ontario. This Court is continued by the 
 above section. 
 
 The Rules and Orders of the former Courts are now rescinded and a consoli- 
 dation of all such Rides and Orders substituted for them. 
 
 The Jud. Act has not fused the two systems of Law and Equity, but has 
 transferred each of these two jurisdictions to one Court which achnin?sters both 
 systems : per Chitty, J., in Emmcrson v. Ii\d, 34 W. R. 630, 54 L. T. N. S. 757. 
 
 The Sui)reme Court does not sit as a Court unless it be to make General 
 Rules and Orders : sec. 105, sub-s. 1. The Judges of the Supreme Court are 
 also to hold a Council once a year to consider the Procedure and Administra- 
 tion of the Law, and to reixjrt thereon : sec. 109. The Master in Ordinary, 
 and Local Mpsters of the Court of Chancery, and the Taxing Officers, are 
 declared to be Officers of the Supreme Court and attached thereto : sec. 112 
 (2), post : by order in Council of •22nd May, 1889, the Masters have been also 
 made officers of the High Court. All the Judges, and their successors, are 
 Judges of the Supreme Court, thus marking the uniformity which is aimed at 
 in the administration of justice, and the abolition of all distinction between 
 Courts administering Law and Courts administering Equitjf. The Apiieal 
 Judges are made competent to do any work which ordinarily is discharged by 
 the Judges of the High Court, and the Judges of the High Court are to 
 act, when needed, in the Court of Appeal : sees. 5, 9. 
 
 (2) The Supreme Court shall continue to consist of two 
 permanent divisions, to be called " The High Court of 
 Justice for Ontario," and "The Court of Appeal for 
 Ontario." 
 
 (3) The High Court of Justice for Ontario shall continue 
 to consist of three divisions, to be called the Queen's Bench 
 Division, the Chancery Division, and the Common Pleas 
 Division of the High Court. 44 V. c. 5, s. 3 (2, 3). 
 
 (4) The Queen's Bench Division shall, daring the reign 
 of a King, be called " The King's Bench Division," and 
 during the reign of a Queen, " The Queen's Bench Divi- 
 sion." E. S. 0. 1877, c. 39, s. 3. 
 
 The English Act did not identify the existing Courts with the Divisions of 
 the High Court bearing the same names ; the Ontario Act expressljf makes tlie 
 High Court and its several Divisions a continuation of the existing Courtu, 
 under a new name : see Went Huron Election cane, 19 C. L. J. 240 ; 3 C. Ji, T, 
 446 ; 8. S. C. R. 120, in note to sec. 163. The Divisions of the High Court are 
 not however themselves Courts, but together constitute the High Court which 
 is thus divided for convenience in transacting business : ifc.7. v. Buntimj, 1 
 Ont. 118. See also Ecu. v. Dudleii, 33 W. R. 348 : Scrrao v. Noel, 15 Q. B. D. 
 557-8. 
 
 So in England by 
 
 See English .Jud. i 
 
CONSTITUTION OF SUPREME COURT. 
 
 (5) The persons hereafter appointed to fill the places of see. 3. 
 the Chief Justice of the Queen's Bench, the Chancellor of 
 Ontario, and the Chief Justice of the Common Pleas, and 
 their successors respectively, are to be appointed by the 
 authority mentioned in The British North America ^c*» JHi v'c^s 
 and with the same respective titles as heretofore. 44 V. ' 
 
 C.5, s.8(4). 
 
 By till' B. N. A. Act, section 9(5, it is provided that " the Govemor-Gieneral 
 shall apiioint the Judges of the Sui)erior, District and County Courts in each 
 Province, except those of the Courts of Probate in Nova Scotia and New Bruns- 
 wick." 
 
 (6) The persona to be appointed Judges of the High Court 
 shall be Barristers-at-Law of at least ten years' standing 
 at the Bar of Oniario. R. S. 0. 1877, c. 39, s. 8. 
 
 (7) Save as in this Act is otherwise expressly provided, 
 all the Judges hei'einbefore mentioned, and their successors, 
 shall have in all respects equal power, authority and juris- 
 diction. 44 V. c. 5, s. 3 (5). 
 
 So in England by Jud. Act, 1873, sec. 5. 
 
 (8) The Chief Justice of the Queen's Bench shall be the 
 President of the Queen's Bench Division, the Chancellor 
 shall be the President of the Chancery Division, and the 
 Chief Justice of the Common Pleas shall be the President 
 of the Common Pleas Division. 44 V. c. 5, s. 3 (6). 
 
 See English Jud. Act, 1873, see. 31. 
 
 (9) Besides the Chief Justice of the Queen's Bench, two 
 Justices of the High Coin-t shall be attached to the Queen's 
 Bench Division ; besides the Chancellor of Ontario, three 
 Justices of the High Court shall be attached to the Chan- 
 cery Division ; and besides the Chief Justice of the Common 
 ^'eas, two Justices of the High Court shall be attached to 
 the Common Pleas Division. See 44 V. c. 5, s. 8 (3, 8) ; 
 48 V. c. 13, ss.2-4. 
 
 (10) The President of the said High Court shall be that 
 one of the Presidents of the Queen's Bench, Chancery 
 and Common Pleas Divisions, who, for the time being, is 
 first in order of seniority. 
 
 (11) Upon a vacancy happening among the Judges, the 
 Judge appointed to fill the vacancy is (subject to the pro- 
 
Sees. 3-7. 
 
 THE JUDICATURE ACT. 
 
 visions of this Act, autl to an}' Rules of Coui't which may be 
 made pursuant thereto) to become and be a member of the 
 same Division to which the Judge whose place has become 
 vacant belonged. 
 
 (12) Nothing in this Act shall prevent, or shall be con- 
 strued as intended to prevent, the transfer of any Judge of 
 any of the said Divisions from one to another of the said 
 Divisions. 44 Y. c. 5, s. 3, (7-9). 
 
 Judgment 4. Where a Judge resigns his office, and any case which 
 w^ore-^*^ has been fully heard by such Judge, either alone or jointly 
 fca3°e\eard. '^^^*^i other Judges, stauds for judgment, he may give judg- 
 ment therein as if he was still a Judge of the same Court ; 
 and any such judgment shall be of the same force and 
 validity as if he were still such Judge, provided that such 
 judgment of the Judge be delivered within six weeks after 
 his said resignation. 44 V. c. 5, s. 86. 
 
 Existins Si, The Court of Appeal for Ontario, at present existing 
 Appeal"/ is continued, under that name, and shall consist of a Chief 
 continued. Justice, to be called the Chief Justice of Ontario, and three 
 other Judges, to be called Justices of Appeal, ond the 
 Judges of the High Court, shall be ex officio Judges of the 
 Court of Appeal, so as to provide for the cases mentioned in 
 section 12 of this Act. 44 V. c. 5, s. 4 ; R. S. 0. 1877, 
 c. 38, s. 3 ; 48 V. c. 13, s. 2. 
 
 Vacancies O. The Chief Justice of Ontario and the Justices of 
 Appeal? °^ Appeal may be selected from the Judges for the time being, 
 how filled. Qj. retired Judges of the High Court, or from such barristers 
 
 as are eligible to be appointed Judges of that Court. R. S. 0. 
 
 1877, c. 38, s. 4. 
 
 T. — (1) The Chief Justice of Ontario shall have rank and 
 precedence over all other Judges of the Courts in Ontario. 
 
 (2) The Justices of Appeal, the Chief Justice of the 
 Queen's Bench, the Chancellor of Ontario, and the Chief 
 Justice of the Common Pleas shall have rank and pre- 
 cedence among themselves according to their seniority of 
 appointment to any of the said offices. 
 
 (3) The other Judges of the High Court shall have rank 
 and precedence among themselves according to seniority of 
 appointment to their respective offices. R. S. 0. 1877, 
 c. 38, s. 6 ; c. 39, s. 7 ; c. 40, s. 6. 
 
 Precedence 
 of Judges. 
 
 See Eng. J. A. 1 
 
CONSTITUTION OP SUPREME COURT. 7 
 
 H, The Chief Justice of Ontario and the Justices ofseca.8-iL 
 Appeal, may, in addition to their duties as Judges of the j^^^^^ 
 Court of Appeal, preside over Courts of Assize and Nisi may hold 
 Prius, Oyer and Terminer and General Gaol delivery, and^***''^^'^'*'' 
 hold sittings of the High Court of Justice, for the trial of 
 oivil causes, matters and issues, and criminal matters or 
 proceedings ; and every such Justice in the exercise of such 
 duties shall have the same rights, powers and privileges as 
 a Judge of the High Court presiding at such Courts or sit- 
 tings. R. S. 0. 1877, c. 38, s. 8. 
 
 9. Upon the request of the Judge or Judges with or for fo'^abs^nce 
 whom he is requested to sit or act, it shall be lawful for any or vacancy 
 Judge of the Court of Appeal, or any retired Judge of the a'judge. 
 said Court, or of the High Court, who may consent so to 
 
 do, to sit and act as a Judge of the said High Court, or to 
 perform any other official or ministerial acts for or on be- 
 half of any Judge absent from illness or any other cause, or 
 in the place of any Judge whose office has become vacant, 
 or as au additional Judge of any Division ; and while so sit- 
 ting and acting, any such Judge of the Court of Appeal or 
 retired Judge shall have all the power and authority of a 
 Judge of the said High Court. K. S. 0. 1877, c. 39, s. 10 ; 
 c. 40, s. 22 ; 44 V. c. 5, ss. 40, 85. 
 
 See Eng. J. A. 1873, 8 51. 
 
 10. No sitting of the Court of Appeal shall be held un- Quorum, 
 less four of its members are present, where the appeal is 
 
 from the High Court, or unless three of its members are 
 present where the appeal is from a County Court, Provi- 
 sional Judical District Court, or Judge of a Surrogate 
 Court or Stipendiary Magistrate. 41 V. c. 8, s. 2. 
 
 11. — (1) In case from pressure of business, or other Divisional 
 cause, it shall at any time seem expedient to the Lieut- courfo't' 
 enant-Goveraor in Council, or to the Judges of the Supreme ^p^®*^- 
 Court, or a majority of them (of which majority two Judges 
 of the Court of Appeal, including the Chief Justice, unless 
 absent on leave, shall form part), the Court of Appeal may 
 flit in two Divisions at the same time ; and in such case, 
 and to enable two Divisional Courts to be held, the Judgt^s 
 of the said Supreme Court, or the said majority of them, 
 shall select from the Judges of the High Court so many of 
 the Judges thereof as may be necessary, together with the 
 
 \ 
 
!»?'■ 
 
 m :\^ 
 
 \M 
 
 •:\>M 
 
 8 
 
 THE JUDICATURE ACT. 
 
 Sees. 12-14. ordinary Judges of the Court of Appeal, to form two Divi- 
 sions of the said Court, and the judges so chosen and act- 
 ing shall have all the power and authority of the Judges of 
 the said Court of Appeal. 
 
 (2) Unless otherwise arranged by the Judges of the Court 
 of Appeal and the said Judges so selected, two of the 
 ordinary Judges of the Court of Appeal shall, where practi- 
 cable, sit in each such Divisional Court. 44 V. c. 5, s. 42. 
 
 The English Jud. Act of 1875, section 12, provides for the Court of Api)eal 
 sitting in two divisions at the same time when necessary ; the two sections in 
 some other respects do not corresp<jnd. 
 
 Quorum 12. In case of there being a vacancy in the Court of 
 maL'^up by Appeal, or in case from illness or some other cause, any of 
 of tht'nfgh *^6 Judges of the said Court is not present at some sitting 
 Court, of the Court, or in case any of the said Judges is under 
 some legal disqualification to hear an appeal, the Judges of 
 the High Court shall choose from amongst their number as 
 many Judges as are necessary, to form a quorum ; and the 
 Judges so chosen and acting shall have authority to con- 
 tinue to hear appeals partly heard before them, and to give 
 judgment in all appeals heard before them, notwithstand- 
 ing that such vacancy may in the meantime have been tilled 
 up, or that the Judge who was absent may have resumed 
 his duties. K. S. 0. 1877, c. 38, s. 10. 
 
 One cause of disqualification is given in section 13. As t') other causes of 
 disqualification, see Boulton v. The Church Society, 15 Gr, 450 ; Dimes v. Umwl 
 Junction, etc., 3 H. L. C. 759. 
 
 Judge 15= No Judge against whose judgment an appeal is 
 
 ^iskfu ap- brought, or who took part in the trial of the cause or mat- 
 Fronf^etn *®''' ^^ ^^ ^^^ hearing in the Court below, shall sit or take 
 not to sit on part in the hearing of or adjudication upon the proceedings 
 appeal. j^ ^^^ ^^^^^ ^^ Appeal. K. S. 0. 1877, c. 38, s. 13. 
 
 Written 14. Where a Judge has heard a case in the Court of 
 
 of"*aif lb- Appeal and is not present at the time of the judgment of 
 
 mSy be"*^** the Court being delivered, his written judgment may be 
 
 anou^e^r ^®^^ ^y ^^^ °^ *^'® othcr Judgcs of the Court, and shall 
 
 Judge. have the same effect as if he were present ; and in such 
 
 ease if the judgment delivered is on an appeal from the 
 
 High Court, it shall be sufficient if three Judges are present; 
 
 and if the judgment is on an appeal from the County Court, 
 
 it shall be sufficient if two Judges are present ; and it shall 
 
CONSTITUTION OF SUPREME COURT. 
 
 9 
 
 not be necessary that the Judges shall be unanimous. 45 V. sees. lu-w. 
 c. 6, 8. 2. See also s. 4, ante. 
 
 Where the Court of Appeal is equally divided the judgment in appeal is 
 affirmed, and usually witn costs: Long v. Hancock, 12 Ont. App. 156; but 
 where on a motion to quash the Court was equally divided in opinion as to 
 their jurisdiction to hear the apfjeal, no costs were given : Whiting v. Hovey, 
 
 ih. iia 
 
 15. In case, after a cause or matter in the Court o^^^^®"* 
 Appeal has been heard and stands for judgment, one of thegiveninthe 
 Judges by whom the appeal was beard is transferred to the onrof%he 
 Supreme Court of Canada, or resigns his office, or is absent heafd^the" 
 from illness or other cause, or dies, the remaining Judges, cause if 
 if unanimous in their decision, may give judgment as if judges are 
 such Judge were still a Judge of the said Court of Appeal, {"Jfu" 
 and were present and taking part in the said judgment. 
 45 V. 0. 6, s. 3. 
 
 10. In the absence of the Chief Justice of Ontario, the Presiding 
 Judge entitled to precedence over the other Judges present abaence of 
 shall preside. E. S. 0. 1877, c. 88, s. 14. ^^^^^ ■^"«- 
 
 17. The Court of Appeal shall subject to the provisions ^,'"'"^8 of 
 of section 57 of this Act, hold its sittings at the City of of Appeal. 
 Toronto at such times and for such periods as the acting 
 Judges thereof for the time being, or a majority of them, 
 may deem necessary or convenient for the speedy despatch 
 of business. R. S. 0. 1877, c. 38, s. 15 ; 44 V. c. 5, s. 19. 
 
 \H, The oath to be taken by the Judges to bo hereafter o^tj^ of 
 
 appointed shall be the following : — 
 
 " I do solemnly and sincerely pi'omise and swear, that I will duly and 
 faithfully, and to the best of my skill and knowledge, execute the powers 
 and trusts reposed in m« as ; so help me God." 
 
 44 V. c. 5, 8. 5. 
 
 10. The oath is to be administered to the Chief Justices Adminis- 
 and the Chancellor by.the Lieutenant-Governor in Council, oa\h°" " 
 and to the Justices of the High Court, other than the Chief 
 Justices, in presence of the President of the High Court ; 
 and to thf) Justices of the Court of Appeal in open Court 
 by the Chief Justice of Ontario, unless the Lieutenant- 
 Governor in any of such cases shall otherwise direct. 44 V. 
 c. 5, s. 5. 
 
 By C. S. U. C, c. 10, 8. 8, and c. 12, s. 8, it was provided that the 
 iiath should be administered to the Chief Justices and the Chancellors by 
 or before the " (iovernor in Council." The R. S. O. c. 39, s. 9, and c. 
 W, s. 7, rwiuired the oath to be taken before the Lieutenant-Governor in 
 Comicil. Since Confederation the oath has sometimes lieen taken twice, viz : 
 both t)eforH the Governor and the Lieutenant-Governor. The Puisne Judges 
 
 v(pry>iraj^ 
 
10 
 
 Sec. 20. 
 
 Jul i;.' lo- 
 tion ot 
 HiRh 
 Court. 
 
 i ' ■ 1 
 
 THE JUDICATUKE ACT. 
 
 of tlie Common Law Courts have heretofore been sworn in open Court by the 
 Chief Justice of the Court, and the Vice-Chancellors in open Court in preseni* 
 of the Chancellor. In Enj^^land the Lord Chancellor takes the oath in presence 
 of Her Majesty in Council, "or otherwise, as Her Majesty may direct": 
 31 & 32 Vict., c. 72, Sched. 1st part ; and the other .Tudge.s take the oath 
 in presence of the Lord Chancellor (.Tud. Act 1875, sec. 5). The oath taken 
 by the English .Judges: 31 & 32 Vict., c. 72, differs a little in fonn from 
 '■at given in the present Act, which follows the fonn hitherto ])rescribed 
 , ^his Province : see R. S. O. 1877, c. 38, s. 7 ; c. 39, s. 9 ; c. 40, s 7). 
 
 JURISDICTION OF HIGH COURT. 
 
 2^>, The High Court shall be a Superior Court of Eecord 
 '.' orit, -J jiv isdiction, and shall, subject as in this Act 
 mentioni-a, j ossess all such powers and authorities, as by 
 the law of England, are incident to a Superior Court of 
 civil and criminal jurisdiction ; and shall have, use and 
 exercise all the rights, incidents and privileges of a Court 
 of Record, and all other rights, incidents and privileges as 
 fully to all intents and purposes as the same were on the 
 5th day of December, 1859, used, exercised and enjoyed by 
 any of Her Majesty's Superior Courts of Common Law at 
 Westminster in England, and may and shall hold plea in 
 all and all manner of actions and causes as well criminal as 
 civil, and may and shall proceed in such actions and causes 
 by such process and course as are provided by law ; and as 
 shall tend with justice and despatch to determine the same; 
 and may and shall hear and determine all issues of law ; 
 and may and shall also hear and (with or without a jury, 
 as provided by law) determine all issues of fact that may 
 be joined in any such action or cause, and judgment thereon 
 give, and execution thereof award in as full and ample a 
 manner as might, at the said date, be done in Her Majesty's 
 Courts of Queen's Bench, Common Bench, or, in matters 
 which regard the Queen's revenue (including the condem- 
 nation of contraband or smuggled goods), by the Court of 
 Exchequer in England. R. S. 0. 1877, c. 39, s. 4 ; 44 V. 
 c. 6,8. 9 (I). 
 
 All that the Jud. Act has done is to give the High Court the jurisdiction 
 which either the Courts of Chancery or the Courts of Common Law had before. 
 It has conferred no new right to relief. An action to enforce a charge where the 
 value of the subject matter was under £10 could not have been entertained 
 by any of those courts before the Jud. Act, and therefore cannot now be main- 
 tained : WcHthurii v. Meredith, 30 Ch. D. 387 : see Gilbert v. BraithicaiU, 
 3 Chy. Ch. 413 ; Wentbroohe v. Browctt, 17 (Jr. 339 ; Reynolds v. Goppin, 1!) tir, 
 027 ; Hardimi v. Cardiff, 29 Gr. 308 ; Allen v. Li/mi,, 6 Ont., 015 ; Shaw v. 
 Freed!/, » C. L. J. 130. 
 
 In Clarhrowjh v. Toothill, W. N., (1881), 110 ; 50 L. J. Chy. 743 ; 18 C. L. J. 
 101, it was held that where an Act passed before the Judicature Act and refer- 
 
 1. In all cas( 
 
JURISDICTION OF HIGH COURT. 
 
 11 
 
 rill? in tenn? to a common law action only authorized a certain proceeding, such See. 21. 
 iiiDCfeclin? might after the Jud. Act be taken in any of the Divisions of the 
 
 High Court. 
 
 Ill England it has been held that the prerogative writ of mandamus is stil 
 (inly granted on a])plictttion to the Q. B. I). : GloHSop v. Histon Local Board, 12 
 Cli. D. 115, 11<'> 12-. I" Ont., however, it is different : see notes to s. 53 (8). 
 
 Under Tlio Criminal Procedure Act (R. S. C. c. 174) s. 2 h, any division of 
 the Higli Court is a " Court for Crown cases reserved " under that Act, and by 
 section 3 of that Act, every Sujierior Court of criminal juvisdicticm has jxiwer 
 to trv any treason, felony, or other indictable offence. The regulation of the 
 iinwedure in criminal cases is a matter within the exclusive jurisdiction of the 
 hoiiiinion Parliament : B. N. A. Act, s. i)l, s-s. 27, and proceedings in 
 criniiiial cases are now regulated for the most part by TliB Criminal Procedure 
 Act (R. S. C. c. 174). 
 
 21, The High Court shall also, subject as in this Act FyuitaWe 
 mentioned, have the like jurisdiction and powers as by thetlon" '" 
 laws of England were on the 4th day of March, 1837, 
 possessed by the Court of Chancery in England, in respect 
 of the matters hereinafter enumerated, that is to say: 
 
 1. In all cases of fraud and accident ; 
 
 2. In all matters relating to trusts, executors and ad- 
 ministrators, co-partnership and account, mortgages, 
 awards, dower, infants, idiots, lunatics and their estates ; 
 
 3. To stay waste ; 
 
 4. To compel the specific performance of agreements ; 
 
 5. To compel the discovery of concealed papers or evi- 
 dence, or such as may be wrongfully withheld from the 
 party claiming the benefit of the same ; 
 
 6. To prevent multiplicity of suits ; 
 
 7. To decree the issue of letters patent from the Crown 
 to rightful claimants ; 
 
 8. To repeal and avoid letters patent issued erroneously 
 or by mistake, or improvidently, or through fraud. R. S. 0. 
 1877, c. 40, s. 34 ; 44 V. c. 5, s. i) (1). See also s. 53 (9). 
 
 FWud and Accident — Fraud, the jurisdiction by this section vested in Fraud 
 the Hiph Court, in resjiect of fraud, is confined to fraud arising in reference to 
 '"J'}1 "ghts. A distinction has been attempted to be drawn between acts 
 which are illegal but \vhich are not accompanied by any moral turpitude, and 
 acts which are both illegal and are the result of moral delinquency. The 
 fonner class of acts have been tenned "legal fraud" : see Pctk v. Derrii, 
 M Ch. D ,541, and the latter "moral fraud," or "actual fraud," but it has been 
 denied that any such distinction e-xists, and that in all cases where " fraud " is 
 charged it must Imj supported by prfwf of moral turi)itude : Jolife v. Baker, 11 
 (I B.p. 255 ; 48 L. T. N. S. «(>(} ; Wiir v. Barnett, 3 Ex. D. 238; 243 ptr Bram- 
 well, J.; and see /*) re Watson 21 Q. B. D. 301 ; I'eek v. Ikn-j, 87 L. T. Jour. 184. 
 It 18 important that fraud should not be charged where it cannot be supported 
 
 '€.^ 
 
12 THE JUDICATURE ACT. 
 
 Seo. 2L by proof of moral turpitude, because where fraud is charged, but not proved, the 
 plaintiff, though successful, may be compelled to pay the costs of the action i 
 Neale v. Winter, 9 Gr. 261, or the costs occasioned by the improjwr charges: 
 Hodyins v. McNeil, lb. 305 ; and see McKenzic v. Yieldiim, 11 Gr. 400, where 
 a successful defendant, who by his answer had improi)erly impugned the motives 
 of the plaintiff's solicitor, was disallowed the costs of the answer ; or the plain- 
 tiff may be denied his costs though successful ; Watson v. Watmn, 23 (ir. 70; 
 McLaurin v. McUonal'f, 12 Gr. 82 ; Hiujhsmi v. Davis, 4 Gr. 588. 
 
 Where fraud is alleged in any proceeding, the facts must bo set out in the 
 statement of claim or petiticm, as the case may be, which are alleged to amount 
 to fraud, mere general allegations that fraud has been committed are iiisufti- 
 oient; Rr Rica Uold Wa.ihiwi Co., 11 Ch. D. 30 ;jfT Jessel, M. R. 
 
 Accident. Accident. — By the tenn accident is intended not merely cas\ialty, or tlie m 
 of Providence, or what is technically called ri.i major, or irresistible force, but 
 such unforsetu events, misfortunes, losses, acts, or omissions as are not the 
 result of any negligence or misconduct in the party seeking relief in resiiect 
 thereof : Story, s. 78. (3ne of tlie most common instances in which relief is soutflit 
 under tliis head is in the case of lost bonds, j)r other instrunieiits imcler 
 seal. In such a case relief is usually granted on the terms of tlie phviiitilf 
 giving a bond of indemnity to the defendants : McDonald v. Hime, IT) (ir. 72; 
 but see Macaideii v. Doyle, 25 C. P. 330 ; and where a suit was brought t(i 
 recover promissory notes alleged to be lost after maturity, and the defendant 
 allowed the bill to go pro confesun indemnity was disi)ensed with : AM v, 
 Morrison, 23 (ir. 100. The jurisdictiim of the Court also extends to giving 
 relief in respect of instruments which liave been destroyed ; Fronteiuie v. 
 Breden, 17 Gr. 045. 
 
 Under this head of jurisdiction the Court may also grant relief in tlie case of 
 a defective execution of a power resulting from accident or mistake, or Ivith, 
 and also in regard to agreements to execute powers which may generally l»e 
 deemed a species of defective execution : see Hugd. on Pow. iA\). But thi« 
 relief is only granted t:> persons having some moral right, and where tliere are 
 no ojiposing equitif^s. Thus, such relief may be granted in favor of a pur- 
 chaser : Fothenjill v. Fotheririll, 2 Freem. 250 ; under which tenn a mortgagee, 
 or lessee, are included : Barker v. Hill, 2 Chy. R. 113 ; Reid v. SUenjold 10 Ves. 
 370 ; to a creditor : Pollard v. (ireenvil, 1 Chy. Ca. 10 ; Wilkes v. Holme*, H 
 MckI. 485 ; to a wife : Cowp. 207; Clifford v. Bnrliwiton, 2 Veni. 370, to a legiti- 
 mate child ; Sarth v. Blanfreij, Gilb. Kq. R. KiO ; Snerd v. Sneed, Anib. 04 ; and 
 to a charity : Inncs v. Sai/er, 7 Ha. 377 ; 3 Mc. & G. (JOO ; Attt/.-Oeid. v. HA- 
 thorp, 2 R. & M. 107 : but not in favor of the donee of the jKjwer, nor a hus- 
 band : Watt v. Watt, 3 Ves. 244 ; nor an illegitimate child : Tudor v. Aiinon,'} 
 Ves. Sr. 582 ; nor a grandciiild : Watt r. Bulhis, 1 P. Wms. (iO ; nor of 
 remote relations, or volunteers : Smith v. Ash ton, 1 Freem. 308. 
 
 Under this head of jurisdiction, personal representatives who have by mis- 
 take overpaid creditors, or legatees, beyond the amount they are justly entitled 
 to receive, may recover the overpayment : Edwards v. Frecvuin, 2 P. Wins. 
 447 ; Hawkins v. Daii, Amb. KtO ; Story s. 00. 
 
 But relief cannot be given from the consequences of a jiositive contract ; thus, 
 a lessee cannot get relief from naynient of rent because of the destruction of the 
 demised premises by accident : Piim v. Blackburn, 3 Ves. 34, 38 ; Story s. 101; 
 nor can relief be given on the ground of accident to a party whose own grws 
 negligence or fault has caused the accident : Ex p. (freenwaii, Ves. 812. 
 
 Trusts. Trusts. — The jurisdiction in resiiect of trusts was formerly a part of tlie 
 
 exclusive jurisdiction of the Court of Chancery. By the Statute of Frauds 
 (20 Car. 2, c. 3,) s. 7. All declarations or creations of trust or confidences, 
 of any lands, tenements or hereditaments, shall be manifested and proved by 
 some writing signed by the party who is by law enabled to declare such trusts, 
 or by his last will in writing ; and by sec. 0, all grants and assignments of any 
 trust or ccmfidence shall likewise be in writing, signed by the i)arty granting 
 or assigning the same, or by his last will. Section 3 makes two exception* 
 from the statute : (1) trusts arising or resulting fret , jny conveyance of lands 
 or tenements, by implication, or ccmstruction of law ; (2) trusts transferred or 
 
JURISDICTION OF HIGH COURT. 
 
 18 
 
 pxtinguished by an act or operation of law. Trusts of chattels real mnst he Sec. 21. 
 evideiictKl by writing : Forster v. Hide, 'A Ves. ti!)5 ; Riddle v. Emerson, 1 Vern. 
 IDS but not trusts of chattels iiersonal : Mcl'lrnddcn w. Jenkins, 1 Ph. 153; 
 Ikiibino V. Ttnnisetid, 1 My. & K. 50(5. 
 
 .\triiHtof lands in a foreign country may be enforced by the High Court 
 where the truntee is resident within its jurisdiction : Smith y. Jlendersiiii, 17 
 (Jr. (> ; and >'ee Re Rulwrtsun, /tohevhim v. Ruher/.iim, 22 (ir. 44!(. 
 
 Tiie Court lias jurisdiction under the Englisli Trustee Acts (10 & 11 Vict, 
 c. '.Hi; W & It Vict., c. 00 ; and 15 k 10 Vict., c. 55), which are virtually re- 
 eii.u'teil in tliis Province : see jumt ss, 22, 23 ; Rf Hudi/r.s, 1 (Jr. 280 ; Taylor & 
 Kwart, Jud. .\ct, pi.. [130-170]. 
 
 Under the provisions of these Acts the Court has power to ai>point new trus- 
 tees uimn a summary apiilication : Jie //e/liiivt/, 21 (Jr. 34(5 ; Jtc /Jillmi, 3 
 C. L..1.12(i. 
 
 The Court is authorized to allow trustees under any deed, settlement or will 
 ounipeiisation for tlieir services : II. H. (). c. 110, s. 3S. 
 
 Exscutors and Administrators. Tin- luri.sdiction of the Court over personal E.xecutors, 
 leprisentatives iuithori/.es it to eutcrtiiin actions or pr(K3e('ding.s to compel them '''t^- 
 toaeciMiiit for their admiiiisrration : .sei' Rulrx !I(m-0'>S ; to fix the comi>ensati(in 
 t(i l)e piiid to them for their sci'vices : K. S. (). cup. 110, sec. 38 ; to control tiieir 
 inaiia^'emeiit of the estate of their testator, or intestate, and if necessary to 
 restrain them from exercising their office, aiul to appoint a receiver or other 
 |iers(iii to act in tlieir stead : I/'irri'/d v. U'o//i.-<, OOr. 443 ; /'r Mmnr, ilr.Mpiu 
 V. .l/""/v. 21 C'ii. I). 77S ; /'' .Unr/'/i.'/, before Boyd, ( '., Aj.ril, 1SH7 ; and an . 
 iMJunctiiiii may l)e granted at tiie instance of aiicxt^cutoragaiiist his co-executor 
 to restrain liim frcjni intermeddling witii the estate ))efore probate : //( re 
 Mooir, liar V. Muwv, 58 L. T. N. S. 3S0. 
 
 Co-partnership. — Tlie Court of Chancery formerly exercised a concurrent Partner- 
 jni'isdietion with the Courts of Common Law in |)artuershi)) cases, Init in all ship. 
 ciwe-s of (litficulty and complexity tiie ecpiity jurisdiction was resorted to. 
 I'lider tliis head the Court lias i)ower to entertain actions for the specific per- 
 feraiaiic'e of agreements to enter into ))artnership for a definite term : Bi'x/nn v. 
 Lixler, I! .\tk. ;i85 ; hliijitiniil v. < 'nr/i/i;/, S Beav. 120 ; but not where no sjtecified 
 time for tile duration of the (lartnersliip has been named : llfrcji v. liiirh, 
 Ves. S')". It lias also power to enforce the specific performance i>f articles of 
 INvrtnersiiip : SmiHrrdli' \. MiKc'/, 10 \'es. 382; Ivii'ihnnl v. I 'I'r/.iii'i, 8 Beav. 
 r.ll; Milrs V. Tliniiiii^, Sim. 000, (iOO ; Mursliull v. Wiit.-<oii, 25 Beav. .501; 
 lla'jiliiil V. Allan, 4 (Ir. 30; but not where damages would lie an adequate 
 compensation: Street v. Rinhji, Ves. 815; Rriti-'li hJi/i/iIre Slii/)j)in;/ Co. v. 
 SmiKs, 3 K. it .1. 4;i3 ; nor where tlie |)artnersliip is in contravention of any 
 piililif Act: Cull I IIS V. Siriiiille, (Jr. 282. 
 
 It lias also power to decree a dissolution of partnership : Rnrlinx v. Wickham, 
 1 (Jiff. .iV) ; Hue v. RieJiaril.^, 2 Beav. 305 ; Nen-toii v. Doniii, 1 (Jr. 500 ; O'Lone 
 V. O'Liiiie, 2 (Jr. 125; and to a)ipoint a rw.'eiver of the partnership assets: 
 l'reiiliii.i V. Breiinuii, 2 (Jr. 274 ; Il>. 322 ; Ride 110, note ; and to decree the 
 taking of the partnership accounts. The Court has also i)ower to entertain 
 an action to estalilish a |)artnersliip : lliiiijhiuii v. Smith, 10 (Jr. .373 ; and to 
 decree an account up to the time of the commencement of the action, even 
 where a dissolution is not asked ; Losemiihe v. /inssell, 4 Sim. S ; Fairthorne 
 V. Wedoii, 3 Ha. 387. 
 
 Account.- In this respect the Court of Chancery formerly also exercised a Account. 
 Cdiicurreiit jurisdiction with the Courts of Law, but owing to its superior 
 maohinery for compelling discovery, and taking accounts, it practically 
 e.xercised an almost exclusive jurisdiction in all cases of any complication. 
 Under this head of jurisdiction the Court entertains actions for an account 
 Imnight by a princiiial against his agent : AfcKenzie v. Johnston, 4 Mod. 373 ; 
 hm v, Litferti/, 7 (Jr. 412 ; Ridlei/ v. Sexton, 18 (Jr. 580 ; 19 (Jr. 14(5 ; Arthurtmi 
 J. Dallei/, 2 Gr. 1 ; U'ri>/ht v. Rnnkin, 18 CJr. 025 ; M'Lean v. (irant, 20 Gr. 
 7G; &inith v. Jlendcrson, 17 Gr. 0; llurrison v. Harrison, 14 Gr. .586; Land- 
 mii v. Crooks, 4 Gr. 353 ; but not by an agent against his principal : Padwick 
 
14 
 
 THE JUDICATUIW. ACT. 
 
 
 1 ^! 1 : 
 
 \ H 
 
 8eo. ai. V. Stnnleii, !t Ha. (527 ; Smith v. Levmii.f, 2 D. J. & S. 1. An acti()n for an 
 account will lie where there are mutual iiccountH b«itween the |iluintitf ami 
 defendant, i.f., where each has received and paid on accouiit of the other; 
 Phil/i/is \. P/ii/lij).s, !l Ha. 471 ; or by c»'.v<i<( (/»f /;•«.•(< againnt liiHtruMtee ;(ir by 
 creditors, legatees, or next of kin against iK^'sonal repivsentatives ; or by a 
 client against his solicitor ; or by partners against each other ; or by a mort- 
 gagor against liis mortgagee, or c/Vr versa ; or where the accounts are c(iin|ili- 
 cated ; or where fraud is charged ; u- by any party having a statutory rijjtittd 
 call another to account, f.ij., by a municipal cor|)oration against a rcgistrurdf 
 deeds for an account of moneys received by ium in excess of his sularv, hi 
 which excess the corporation is entitled : Re Iniiersull, (iiiii/ v. lniiei.tiiU, It) 
 Ont. 1!I4. 
 See further as to proceedings in taking accounts : Rule 57, 1't Ke(i. and notes, 
 MortgagoK. MortgageB. — At Common Law the right of a mortgagee to the mortp«re<l 
 projierty was, on default in payment of the mortgage, absolute ; but in Ktiiiity, 
 notwithstanding the mortgage, or defaidt in payment, the mortgagor wiut 
 still regarded as the owner of the mortgaged property, and the mortgage was 
 considered merely as a security for the debt. In order to give effect to the 
 enuitable rights of the parties "Equity had fonnerly an exclusive jurisdiction, 
 Tne jurisdictiim of the Court in resjiect of mortgages extends to actioiiH by 
 mortgagors against mortgagees to redeem, or by mortgagees against mort- 
 gagors and otliers interested in the equity of redemjjtion for the forclosiireni 
 their right to redeem, or f(jr the sale of the mortgaged jiroi^rty. As tuthe 
 mode in which this jurisdiction is exercised : see Rulex 248, 341<«, 717, 718, 124, 
 137, and notes. 
 Awards, Awards. — The Court of Chancery had fonnerly a concurrent jurisdiction 
 
 with Courts of Law in resi)ect of awards. The Court has jMJwer to st aside 
 awards: Law-son v. JliUchiniton, l!t (rr. 84; Kiimird v. (riirdon, 12 Gr. 333; 
 Kemp v. Hevderson, 10 Grr. 54 ; Jekyll v. Wade, 8 (ir. 3(13; Hiekimn v. 
 Lawsiin, 8 Gr. 380; Oillam v. Vler/lwrn, 7 Gr. 83. But an award was rcit 
 impeachable in Equity cm the ground that it was erroneous in eitiier law or 
 ' fact, unless the error a[)iJeared on its face. The cases in which the Court of 
 Chancery could interfere were those in which such an error so appeared ; or 
 where there had been corruption, fraud, or excess of jurisdiction ; or where the 
 arbitrators making the award admitted that they had made a mistake : It' 
 Urant d- Eastuiniid, "22 Gr. 563 ; Pardee v. Lloyd, 20 Gr. 374 ; and see Le Mmj 
 V. McRae, 10 Ont. App. 348 ; Re I/arveyd: Parkdale, 16 Ont. 372. The Court of 
 Chancery could also enforce awards : Armntroiiy v. Cai/lei/, 2 Chy. Ch. 128,163; 
 Wilson v. Sivitzer, 1 Chy. Ch. 44, and see Bell v. Miller, 1) Gr. ;«.") ; //odder \. 
 Turvey, 20 Gr. 03 ; where siiecific jxirformance was decreed : Dandey v. 
 Jjondon, Chatham .£• Dover Ry. Co., L. R. 2, H. L. 43 ; BlackeU v. Bates, L. R. 
 1 Chy. 117 ; Nickels v. Hancock, 7 D. M. & G. 300. Formerly it was custom- 
 ary m Chancery to make the award a rule of Court as a ])reliminary to 
 proceeding to enforce it : White v. Kerby, 2 Chy. Ch. ^-52 ; Wadsimrth v, 
 McDowjall, 5 Gr. 2i)0; Allan v. 0\\eal,2 Chy. Ch. 4,52; but at law the 
 practjce was to make only the submission a rule of Court, and this latter 
 practice it is said should now be followed in the High Court : see jicr Jesse), 
 M.R., Jones v. Jones, 14 Ch. D. 51)4-5, and see In re <iitf<>rd, 20 C^ B. D. 368: 
 but as to awards made since 1 July, 1880, see now 52 Vict. , c. 13 (O). 
 
 An award must be moved against within the term following its publication 
 or within the period which such term formerly occupied ; Kean v. luhonnh, 
 12 P. R. 025; but see now 52 Vict., c. 13, ss. 4-0, as to awards made since 
 1 July, 1889. 
 Dower. Dower.— The jurisdiction of the Court of Chancery was formerly concurrent 
 
 with that of the Courts of Law in actions to enforce claims for dower : Vrm>j 
 V. Templeton, 8 Gr. 483; Grieve v. Woodruff, 1 Ont. App. 017. Damages for 
 detention of dower cannot be recovered where the husband does not die seised, 
 even though a demand of dower be made : Morgan v. Morgan, 15 Ont. 194. 
 
 The Court had jurisdiction to compel a widow to elect between the provision 
 made for her by her deceased husband's will and her dower, whenever it was 
 inconsistent with the testator's intention to be collected from his will, that she 
 should enjoy both : iMjpp v. Lapp, 16 Gr. 159 ; Murphy v. Murphy, 25 Gr. 81; 
 
JURISDICTION OF HIGH COURT. 
 
 15 
 
 Hipleii V. Riplen, 28 Gr. (ilO; Laiillaw v. Jacket, 25 Or. 293; 27 Or. 101 ; Beo. 91. 
 Patrick V, Shairr, 21 (tF. 123 ; ArviMtroufi v. Anmtrmuj, 21 (tr. 351 ; Mc(/rrfii>r 
 V. Mcdriiiiir, 2() (ir. 450 ; Cohman v. (HonrUlc, 18 (Jr. 42 ; Zrr v. McKiuhi, 
 IS Gr. 52^" ; Hutch ivxini v. Siinjint, 1(» (rr. 78 ; McLennan v. (Irani, 15 (tr. (i5 ; 
 A7c)' V. Liinhman, 8 (ir. 435 : and whcrt* a dowrt'Ks liaH made* her electitm hIh' 
 may Iw restrained from afterwardH prosecuting an action for dower : W<»tacott 
 V. Cockirliiir, 13 (ir. 70. 
 
 MantB.— The jiuMwliction of the Court of Chancery ovi^r infantn, was partly Infant* 
 »"xclusiv(', and i)artly concurrent, with thatof the SuiH-rior Courts of Coninion 
 Law. Ah r«'giirdH the custody of tlie jwrsons of infants, it wan concurrent 
 tt'itii that of the Courts of Law ; l«it as reganls their estates, it was exchisive. 
 
 As ri'(,ar(ls tiie |it r8on'< of infants, the Cotirt f)f Chancery cfiuld make onh-r 
 for tiicir cust(Kly, education, and maintenance, and a]))K)iiit giiardians of their 
 |)(.rs(ins : Re Kiith, '! P. R. 138 ; McNahh v. Mclnncn, 25 (ir. 144 ; Jle Inrin, 
 l(i (ir. 4I>1 ; Miirjihii v. Lamphier, 12 Gr. 241 ; Anon, (> (ir. (>32. The Surrogate 
 Cmirts liad a concurrent jurisdiction with the Court of Chancery to ap]K)int 
 etiarclians of the jiersons and estates of infants : Be Stannanl, 1 Ch., Cn. 15 ; 
 fit Meiiunn, 23 lir. 11)1. 
 
 As regards the custcKly of infants : see Re Keith, 7 P. R. 138 ; Re (iiUric,, 3 
 (ir. 27!) ; He iJarin, 3 Ch., Ch., 277 ; Andrews v. Halt, 8 Chy. ('.22 ; Re Unutrt, 
 12 P. R. 312, 435, S. C. in appeal, 24 C. L. J., 5(i!) ; and see R. S. O., c. 137, 
 <s. 1, 2, ID, 13, in notes to sec. 53 (11), whereby imjwrtant changes were made 
 in the law relating to the custody and guardianship of infants. 
 
 Foiinerly tliere was a conflict between the Courts of Law aiid Equity as to 
 whether a testanientaiy guardian could l)e interfered with: see ^c Andreirs, 
 L. R. S (}. B. 153 ; Andrews v. Halt, 8 Chy. 022 ; but the jxjwer to remove 
 testamentary guardians is now expressly given to the Court by statute : R. S. O. 
 c. 13", s. Ki. Fonnerly it was not customary for the Court of Chancery to 
 exercise jurisdiction in regard to an infant, unless the infant had some property 
 in respect of wiiich the jurisdiction could be invoked: Wel/enlei/ v. Jieaiifort, 
 2Kuss. 21; C/aiiton v. Clarke, 3 D. F. & J. (J82 ; but the right of the Court 
 to exercisct jiuisdiction is not considered to be limited to cases in which the 
 (iroiKTly of the infant is involved : Re Spence, 2 Ph. 247 ; Re Tynn, 2 Dr. & S. 
 iSl ; Re k'mart, 12 P. R. 312, 435. Any suit relating to the estate or i)erson of 
 an infant and for his benefit has now the effect of making him, whether ])laintifT 
 or defendant, a ward of Court : (iimn v. (fUhard, 1 Dr. & S. 35() : Ri: Bertc, 
 y H. L. C. 440 ; Pendleton v. Macrory, 2 Dick, 73(J. 
 
 The Court, upon an application for a habeas corpus by a father to obtain the 
 cu8t<xly of his children, cannot rec|uire the a)>plicant to i)roceed by way of 
 jjetition in order that the facts may bo better inquired into : Re Hnmrt, 24 
 
 c. L. J. rm. 
 
 The Court has i)ower to order the sale of infants' estates when necessary to 
 provide for their maijiteuance or education, or when by reason of any part of 
 the property being exi)osed to dilapidation or depreciation from any other 
 cause, the infant's interest requires it : R. S. O. c. 137, s. 3. The Court 
 may also make jirovision out of an infant's estate for hi.s maintenance and 
 education : Ashhouijh v. Ashhouijh, 10 Gr. 430; R. S. O. c. 137, s. 7. 
 
 Idiots and Lunatics.— The Court of Chancery formerly exercised an Lunatios.- 
 exclusive jurisdiction over the jjersons and estates of idiots and lunatics. This 
 jurisdiction is now regulated, so far as regards obtaining declarations of lunacy 
 and iiroviding for the sale of lunatics' estates, and for tneir custody and main- 
 tenance and the payment of their debts, by R. S. O. c. 54. 
 
 Staying Waste. — The juri.sdiction of the Court of Chancery to stay waste Waste 
 was part of the concurrent jurisdiction of the Court which was exercised by 
 means of injunction. The jurisdiction of Equity originally arose in England 
 on account of the incom[)etency of the Courts of Law to give adequate relief. 
 The juiisdiction of the Court of Chancery was originally confined to cases of 
 what was by a somewhat misleading use of words called "equitable waste," 
 meaning thereby acts which were deemed waste only in Courts of Equity, and 
 tor which no action would lie at law ; and to cases where no waste had been 
 
16 
 
 THE JUDICATURE ACT. 
 
 8eo. 21. actually committed, but war thrpatcncd ; but by late Htatutes the jnriHrliction 
 was exteiuleil, and the Court wan enabled to grant an injunotion to restrain 
 waste, notwitliHtandinK that the party in jKisHession claimed by an udverse 
 leifal title: R. S. (). (1877) c. 4(), h. 3!); Winhtimn v. Fithln, lit r,v. m). 
 TliiH clauHe is now sui)erHeded by h, 53, h-s. 2 pout : wee H. S, O. \i, 2(187, 
 which in effect abolishes the distinction between legal and etpiitable wasic, liv 
 taking away from a tenant for life without impeachment of waste, the legal 
 rijfht to commit erpiitable waste. See, however, In re VurtwrujiU, Avia v. 
 iSeivmiin, II Ch. D. .')32. 
 
 A mortgagee of a term of years being in possession, may, at the suit nf the 
 mortgagor, be restrained from commiiting waste, even though he have ob- 
 tained the cmisent of the reversioner : Chi^hnlm v. SluUlun, 1 (»r. 318. 
 
 A moi'tgivgor in jM>ssession will not be restrained from cutting timber fur 
 fuel, fencing, or repairs uimhi the premises, but if the security is scanty lie will 
 be restrained from cutting timber for other purposes, at the suit of the iiiort- 
 gagew : Rann v. Milh, 7 lir. 145 : Kimj v. Switk, 2 Ha. 23!) ; or at suit (if 
 
 an execution creditor : Wanon v. Ciirpnitcr, 13 (Jr. 321). 
 
 An injunction has been grante<l to restrain waste ]iending litigr 'otho 
 
 ownei-ship of the i)roi)erty : Chriiitic v. Lou;), 3 Gr, 030 j and an injui.^tiun has 
 also been granted to restrain waste in favour of an unpaid vendor against a 
 vendee and his assignee : Lawrence v. Judtjv, 2 (Jr. 301 ; Ferrirr v. Kirr, 2 (Jr. 
 (M)8; Mitchell \. McOaffei/, Vt (Jr. 301; Wahk v. Brown, 4 U. C. L. .1. (i8; 
 McLiiin v. Burton, 24 (Jr. 134 ; Sitmmern v. (huk, 28 (Jr. 170. A tenant for life 
 who is not entitled to hold without im|>eivchment of waste, may Iw restrained 
 from connnitting any waste in an actum at the suit of the remainderman ; 
 Clow V. Clow, 4 Ont. 355; but see Drake v. Wit/lc, 22 C. I*. Ml : ,Sauiiil,rs v. 
 Brcakie, 5 Ont. 003; Munniey. Linilmi/, 10 P. R. 173, and where the tenant for 
 life holds his estate without imiMjachment of waste, if he is guilty of malicious, 
 extravagant, or capricious waste, that was formerly called "equitable waste" 
 and may be restramed at the suit of the reversioner or remainderman : (Jnrth 
 v. Cotton, 1 L. C. Eq. 800 ; Vane v. Barimrd, 2 Vem 738 ; Bolf v. SomervWe, 
 2 Eq. Ca. Abr. 759; Morrhv. Morrix, 15 8im. .505; Micklcthwuit v. Mickle- 
 thwait, 1 De. G. & .T. 519 ; Turner v. Wriijht, 2 D. F. & J. 234 ; Talhut v. 
 Hope-Scott, 4 K. & J. 9() ; and see s. 53, b-s. 2 post. He cannot be restnined 
 from merely iiennissive waste : see In re Cartioright, Avis v. Neimnaii, 41 C" 
 D. 532. 
 
 A tenant in tail in possession cannot be restrained from committing waste ; 
 Turner v. Wright, Joh. 752 ; Saville's case Mos. 224, 1 L. C, Eq. 13, except 
 after i)ossibility of issue extinct; Attorney-General v. Marlhorx^uyh, 3 Modd, 
 538 ; Abrahall v. Buhh, 2 Sw. 172. 
 
 Where the jJaintiff has slumbered on his rights : Huifhson v. Cook, 20 Gr, 
 238 ; or the injury is trifling : Bernard v. Gibson, 21 Gr. 195, an injunction 
 will be refused. 
 
 Specific flpeclJlc Performance. — The jurisdiction of the Court of Chancery to decree 
 
 perform- specific performance of contracts was discretionary, but the exercise of this 
 auce. discr- .ion was regulated by certain fixed rules and principles : Laviarc v. 
 
 Dixon, L. R. G H. L. 414. Sjieaking generally, the Court of Chancery refused 
 to decree siHJcific i)erformance of contracts or obligations except in those cases 
 in which there was no adequate remedy at law for breach of the agreement, and 
 in which the Court could 8ui)erintend and enforce the execution of its decree : 
 Johnson v. Montreal cO Citi/ of Ottawa Bi/., 22 Gr. 290. Agreements for the 
 sale or leasing of land will be sjiecifically enforced : Dennison v. Kennalii, 7 
 Gr. 342 ; Simmons v. Campbell, 17 Gr. 012 ; even when made by parol, if there 
 have been acts of part i)erformance : Shcnnan v. Parsill, 18 (JJr. 8 ; Butler v. 
 Church, 10 Gr. 205 ; McDonald v. McKinnon, 26 Gr. 12 ; but payment of the 
 whole, or part, of the purchase money is not an act of part performance suffi- 
 cieu.. to aamit parol evidence of a contract for the sale of lands : Johnson v 
 The Canada Co., 5 Gr., 558; the acts of part performance relied on must be 
 such as cannot be referred to any other than the alleged contract : Sexton v. 
 Shell, U. C. L. J. 94. As to how far signing the detS, without delivery by 
 
JURISDICTION OF HIGH COURT. 
 
 17 
 
 the vendor, is part performance, or evidence to satisfy the Statute of Frauds ; 
 HPti ailUtUlii V. Whitf, 18 dr. 1 j McGlumj v. McCrackcn, 3 Ont. BDO. 
 
 SeaZL 
 
 Till' inl« ivnd HiH'cific delivery of cliattolM may be enforced when damages Speolflo 
 '.voiild maiiiftwtly be an inwlequate coniix-nHation. So also the Hpecific (htlivery porfor- 
 
 ild maniftwtly be an inwlequate coniix'nHation. So also the Hpecific (htlivery 
 of heirliHunH : I'unrii v. Pnneii, 1 L. C. Kq. iMil ; Soinrrmt v. C'loknon, 1 L. C. 
 Kq. !"'l ! •«■ chattels of unique value : Fells v. Roul, 3 Ve«. 70 ; Fnlrki' v, dran, 
 \\)\K-\\ iVil ; l)i>wlin;i v. Jifttjniutnii , 2 J. & H. 544 j^ Thorn v. CohiminMonfritof 
 
 av 
 
 Kq. !"'l ! •"■ chattels of unique value : Fi 
 
 1 liri'W ImI ; ItDwIiwi v. Jirttjniuinit, 2 J. « ti. ly*^ ; innrri 
 
 Works, 32 Hfiiv. 4iM) ; A7»vvi v. ^n;/// Oim Co., 33 Ch. D. WW ; .V) L. T. N. S. 
 h;U ; u'lav lie ciiforced : Inn Hpecific delivery of nierchandiHe will not UHUally he 
 (I'ecrtwd i Huxtoii v. LikUt, 3 Atk. 384 ; Fi)ther<iiU v. Jtow/iinil, 17 Kq. 141; but 
 a cdntriict ri'latiuK to saw [ogn Ihvh liec^n H|)ecifically enforced : Fttrnvcll v. Wall- 
 briiliji, li •«'■. <i34 ; Flint v. Corh/i, 4 (ir. 45 ; Stivcimon v. Clark, lb. 541 ; Fuller 
 V. tiichmonil, 2 (Jr. 24 ; 4 Gr. (i57. 
 
 An aifrwaiient for the allotment of Hhare.^ in a company, if any shares remain 
 
 iiilalile, may l)e H))ecitically fjuforced : J'rice v. Denhuih Hji. Co., 17 W. R. 
 572; Frniunon v. Wihon, 2 Cliy. 77 : < i.naila Life Anwe. Co v. Peel MaimfacVg 
 Co., 2(i*rr. 477. Asfreenu^ntn for the Hale of Hharos in coMpauiiw : iJunoift v. 
 Mlii-irht, 12 Sim. 1!K>; Cheale v. Kenimird, 3 i). & J. 27 ; Turner v. Moii, 32 
 L.T.N. S. .''id; for the sale of ]iatentH : Coijent v. (Jihuon, 32 Beav. 557; or 
 future inventiouH : Printimj Co. v. SaiupKoii, 1!> Kq. 402 ; for the wale of g(K)d 
 will with buHiii'ici-' premiHes, and fixturen : Smith v. PetevK, '20 ¥a\. 511 ; Munnop 
 V. Mnmii, 18 (Jr. 4.")3 ; 17 (Jr. 3(M) ; KJ (Jr. 302 ; or with jilant and trade necret ; 
 Brtrnm V. Whitehiad, 1 S. & S. 74; but not ol goodwill "uly: Barter v. 
 Co'niwiii, 1 •!. & W. .580. A contract betwet>n several manufacturerH not to 
 sell giHKlH manufacturwl by them below a stipulated price may be enforced : 
 The Ontario Salt Co. v. The Merchantu Salt Co., 18 (Jr. 540 ; as also agreements 
 not to trade within reasonable limits : hvo Holcomh v. Nixon, 5 (Jr. 278, 373. 
 
 An to sjiecific performance of awards, and contracts relating to jjartnerships, 
 Bee isupra. 
 
 Agreements for the execution of separation det^ds may be enforced : Wilson 
 v. Wilmn, 1 H. L. C. 538. 
 
 Sometinifs where the Court cannot decree specific performance of a pnsitivo 
 tiartof a contract, if the contraet include • a separate negative contract, the 
 latter may be enforced ; e. <i., an agreement by a singer to sing at a jiarticular 
 place cannot be enforced, nor an agreement l>v a writer to write for a particular 
 publisher; but if the agreement also jirovides that the sinjfer is not to sing 
 elsewhere without tlu; C(jusent of the ])laintifT, or that the writer will not write 
 for any other p\iblisher during the engagement, the negative agreement may bo 
 enffirced : Lumhti v. Waaner, 1 ]). M. & li. (MM; Rolfe v. Rolfe, 15 Sim. 88; 
 Htig v. Camll, 2 Jur. N. S. 348 ; Da<iijett v. Ryman, 1(5 W. R. 302. 
 
 Discovery. — This was fonnerly a part of the exclusive jurisdicticm of the Disoovory. 
 Court of (Chancery, but, even before the Judicature Act, the Common Law 
 Courts were empowered to compel discovery ; see R. S. O. (1877) c. 50, sa. 15(), 
 ft SfO.; 41 Vict. c. 8, s. 9. Discovery is now an incidental jiart of the relief 
 which may be obtained in every action. This may be obtained by a jdaintiiT 
 agaiiLst a defendant, and by a defendant against a plaintiff. The method t)f 
 obtaining discovery is i)rescribed by /fi</fs 487-524. Actions for discovery only, 
 in aid of a foreign action, will not be entertained : Vrei/fiis v. Peruvian 
 Guano Co., 41 Ch. D, 151. 
 
 Multiplicity of Suits -X :;e ..-xle by which a multiplicity of suits in reference Multipli- 
 to the same niatter, was avoided in the Court of Chancery, was by requiring city of 
 all wrsoiis interested in the subject matter of the litigation to be made parties suits. 
 either as plaintiffs or defendants in one suit; but as this general rule sometimes 
 oiieiiited inconveniently it was in certain classics of cases provided that some 
 only of the jiersons interested need be intKle parties, and tliat those wiio were 
 not made parties should be sufficiently represented by those who were made 
 parties, and should be bound by the proceedings as if they had been them- 
 selves parties. This method of i)rocedure is perixstuated : see /tales 300-311, 
 315-316, 320-322 and notes ; or else it was provided that the parties interested 
 need not all, be made original defendants, but might be added as defendants 
 at a later stage of the proceedings : see liulc 306. 
 
 J.A. 2 
 
 :'i* 
 
 ••'■•^! 
 
18 
 
 THE JUDICATURE ACT. 
 
 8ea22. 
 
 Decreeing 
 . issue or 
 cancella- 
 tion of 
 patents. 
 
 Decreeing the Issue, or Cancellation of Patents.— The jurisdiction confermi 
 on the Hifeii Court by this section to decree the issue or cancellation of patents 
 is probably confined to patents issued by the Provincial (iovemnient. But 
 under the C. 8. C. c. 61, s. 34, the Court has also jjow^er to dec.ve the can- 
 cellation of patents for invention issued by the Dominion Ciovemment ; and 
 may also entertain actions to restrain the infringement of such patents, and for 
 damages therefor : Ih. s. 30 ; Hunter v. Carrick, 28 Gr. 481) ; 10 Ont. App. 449; 
 11 S. C. R. 300; Smith v. (Joldic, 7 Ont. App. 028. A ])rior patent to a i )erson who 
 is not the tnie inventor is no defence to an action by the true inventor under a 
 subsequent patent : Smith v. Oolilic, it S. C. R. 4(1. The Court of Cliancerj' 
 would formerly rescind a patent for land improperly granted by the Pro- 
 vincial Government, although the (j^rant were voidable, or even voi(' at law : 
 Martin v. Kmiwdii, 2 Gr. 80. But it would not set aside a i)atent issued upon 
 a deliberate view of all tlie circumstances, \\ nen there was no fraud or uiistaKe: 
 Himpxon v. Grant, 5 (ir. 2(>7 ; Boulton v. Jcffrcii, 1 E. & A. Ill ; Barnes v, 
 Boomer, 10 Gr. 532; Kennedi/ v. Leic/or, 14 (Jr. 224; and see Farmer \. Lit- 
 ingdone, 8 S. C. R. 140 ; even thoui;'h the i)atent issued contrary to a re|K)rtof 
 the Heir and Devisee Commissicjnt'rs as to the party entitled : MclHanukl v. 
 McDiarmid, 9 Gr. 144 ; nor if the })laintiff had an opiiortunity of briugiiip; the 
 material facts to the attention of tlie officei-s of tlie Crown before the patent 
 issued, and neglected to do so : Mahon v. McLean, 13 (Jr. 301. ]?iit a patent 
 issued in error might be rescinded ; e. <i. where a i>atent issued to a third jiarty 
 after another i)arty hiul contracted to purchase, and had gone into i><>sse(i8iou 
 of the land : Martini v. Kennedii, 4 (ir. (51 ; Attorne>i-(/enera/ v. Nil/, H (ir. 332; 
 or when it issiied without i)n)|)er consideration by the officers of the Crown of 
 all the facts ; Fricht v. Scheck; 10 (Jr. 2.54 ; or hiul issued to A., when an (irder- 
 in-council had been pas.sed for the grant of the land to B. : Attoriieij-Hentrni 
 v. Garlmtt, 5 (ir. 383; and see .Saiiijeen v. t'hiirch Soeictii, (5 (irr. 538. 
 
 The Attorney-General is a i)ro|)er party to such actions whenever the iwrsoii 
 to whom the patent has issiuKl would be entitled to conij)ensation if the patent 
 be rescinded : lb; Keen v. Attoriuiz-General, Hi Gr. 407; and see Meliitims. 
 Attorneif-Gencral, 14 (ir. 80 ; but if the case made by the plaintiff is one of 
 fraud, and the patentee would not be entitled to any compensation on the 
 l)atent being set iiside, then the Attoniey-(ieneral is not a necessary party : 
 Bees V. Attorn eii -General, 10 (ir. 407 ; and see Coxiirove v. C'orhett, 14 (Ir. Gl"; 
 Lawrence v. Pomeron, !) (ir. 474 ; but see Attorneii-General v. McNultii, 8 Gr. 
 324; 11 Gr. 281, ,581 ; WeMrooke v. Attorneii-General, 11 Gr. 33*^; Miitchimn 
 V. Davis, 14 (ir. 340, where the Attorney-(ieneral appears to have been a party 
 though the i)atent was iniiwached for fraud. 
 
 The Court may be unable to grant relief where innocent (larties havi' .icriuired 
 a title umler the imi>eached patent ; Procter v. Grant, (ir. 2(S, 224 ; but see 
 Stevens v. Cook, 10 (ir. 410. 
 
 The Court by virtue of its jurisdiction to decree the issue of i)atents, would 
 not, however, entertain a suit for the sftecific performance of an order in coun- 
 cil for the grant of land : Simpmn v. Grant, 5 (ir. 207. 
 
 *i^'on°in*' ^^' ^^^ rules of decisioD in the said matters in the last 
 
 such cases, preceding section mentioned shall, except where otherwise 
 
 provided, be the same as governed the Court of Chancery 
 
 in England, in like cases, on the 4th day of March, 1837. 
 
 R. S. O. 1877, c. 40, s. 35 ; 44 V. c. 5, s. 9 (1). 
 
 This section must be read in connection with the rest of the statute law of 
 this Province ; and wherever any provincial statute mcxlifies wliat was the law 
 or ndes of decision of the Court of Chancery in England in like cases on the 
 4th March, 1837, then the express provisions of the provincial statutes m'lst 
 control the decision of the High Court rather than those rules which governed 
 the Court of Chancery in England at the date above mentioned : see SmUk v 
 The Methodist Church, IG Ont. 199. 
 
 Bj; R. S. 0. c. 93 s 
 
 relative to iirojwrty anc 
 of England as tliey stcK 
 the same, and all matt 
 gation of fact and the f( 
 tiniie to be regulated bj 
 existed on the day and , 
 rules have Ixien since re 
 of the Ini|)erial Parliam 
 Act of the late Provinct 
 the Province of Ontari 
 Revised Statutes. So 
 Chancery were, "relat 
 1837, affected by Imperi 
 this section seems to gi 
 Province, but this point 
 Ont. (i!»2. Ifthatdecis 
 to deterniiiie liuw far, 
 civil rights passed subse 
 1837, nnd wliicli contn 
 Chancery on 4tii Marcl 
 sect. 22. 
 
 In a recent case it 
 Thellusson Act (.SO & 40 
 Sjniictr, l;-)<)iit. 0'»2; bii 
 declared to h:i\e been, ai 
 it was held tliiit Lord L^ 
 lietween a iiiaii and his 
 this Pn)vince. Hut in 1 
 gagee died intestate, lea 
 but liefore final order, 
 final order, that the inf 
 meaning of the lm|)eria 
 by Inii)erial statute 13 i 
 ordered on a ifetition, w 
 a imrchaser from the e 
 s. i, whereunder the pe 
 it has iH-eii held that tlu 
 10 ft 11 Vict. c. )M;; 13 
 * Chute, Chy. Acts & 
 Taylor & Kwart Jurl. A 
 fltmd, In C. L. .1. 85 ; Bi 
 
 How far English statu 
 judicial construction of tl 
 have been intriKhiced. 
 far the IniiKTial statutes 
 i<14(ir. 004, it was I, 
 provides for the applica 
 liremises destroyed, u|)oi 
 l«rt of our provincial la 
 ^»wn 14 Ont. 487, this 
 l*nai I'arhanieiit has ik> 
 country; Nee B. N A 
 (« 5(;r. 412;«(ir 
 f • »™ see Bei/ina v. Sh 
 lut without such expres 
 therefrom, they do not 
 I /w vuakoughnet, C. 
 
 The 9 Geo. 2 c. 36, col 
 Act hag, after .some conf 
 'nt^tario: iJoed.Andcr, 
 '^' ^'> Mercer v. Hctesto 
 
 : 
 
JURISDICTION OF HIGH COURT. 
 
 19 
 
 By R- S. 0. c. 93 s. 1, it is provided that in all matters of controversy Bee. 22. 
 relative to ])ro|)erty and civil rights, resort shall continue to be had to the laws imperial 
 of England as they stcKxl on the 15th Oct., 1792, as tlie rule for the decision of Statutes 
 the same, and all matters relative to testimony and legal v-oof in the investi- passed 
 gation of fact and the forms thereof in the several courts oi Ontario shall con- V^IS' *** 
 tinue to be regulated by the rules of evidence established in England as they ^^^ j^^ j^ 
 existed on the day and year last aforesaid — except so ftir as the said laws and force. 
 rules have Imwu since rei)ealed, altered, varied, modified or aflfected by any Act 
 of the Imperial Parliament still having the force t>f law in Ontario, or by any 
 Act of the late Province of Ui)i)er Canada or of the Province of Canada, or of 
 the Province of t>ntari() still having the force of "law in Ontario or by the 
 Revised Statutes. So far as the rules of decision of the English Court of 
 Chancery were, "relative to projierty and civil rights," ok the 4th March, 
 1837, affected by Imperial statutes passed subsequently to the 1.5th Oct., 1792, 
 this section seems to give to those Imjierial statutes the force of law in this 
 Province, l)ut tliis point is not frt'e from doubt : see Hnrrimn v. Spencer, W 
 Ont. OiC If tliat decision is correct, it may l)e a somewhat difficult question 
 to determine how far, if at all, Imi)eriai statutes affecting |)ropertv and 
 civil rights passed subsequently to the 1.5th Oct., 1792, but i)rior to 4th starch, 
 1837, ind which controlled the rules of decision of the English Court of 
 Chancery on 4th March. 1837, are incorporated int(> the law of Ontario by 
 sect. 22." 
 
 In a recent case it was held that tins Imperial statute known as The 
 TiiellussDii Act (.39 & 40 (ieo. 3 c. 9) was not in fovce in Ontario : Harrimn v. 
 .S/wHdr, 1.5 Ont. (>91J ; but since thut decision it has by 52 V^. c. 10 s. 1 lieen 
 declared to hiive lieeii, and to l)e in force. In H<,'l;iiiiif v. McNeil, 9 Or. 305, 
 it was held that Lord Lyndluirst's Act (5 & (> W. 4 c. .54) relating to marriage 
 Ije'iween a man and his deceased wife's sister, had not been introdiiced into 
 this Pn)vince. But in Re Hot/iiex, 1 (ir. 285, it was lield that wlieiv a mort- 
 gage died intestate, leaving an infant heir, after a decree for foreclosure, , 
 hut Iwfore final order, and the executor revived the suit and obtained the 
 filial order, that the infant heir was a |)erson seized u|)on trust witliin the 
 meaning of the lm])erial statute 11 (ieo. 4, 1 W. -l c. (iO s. (5 (since repealed 
 by lni|)erial statute 13 & 14 Vict. c. (10) and that under that Act he might be 
 ordered on a petition, without suit, to convey the land to the executor, or to 
 a purchaser from the executor : see now R". S. O. c. 110 s. 10 and c. 108 
 s. 4, whereuiider tlie personal reitresentativt! has now a legal title. So also 
 it hasl)een held that the Imperial statutes known as the Tnustee Relief Acts 
 10 et 11 Vict. c. !Hi; 13 & 14 Vict. c. .00; and 15 & 1(( Vict. c. .55): Morgan 
 i Chute, Chv. Acts & Orders pp. (vl-117 ai-e in force in this Province: see 
 Taylor k Kwart .Tud. Act. j)p. [1,S()-17(>] ; Re Laxh, 1 Cii. Cii. 220 ; Re Kim- 
 fkml, 1,5 C. L. J. 85 ; Re Cronker//, 10 Ont. 207. 
 
 How far Knglish statutes are miule oimrative in Ontario nnist depend cm the 
 judicial construction of the Provincial statute by which they are claimed to 
 have been intriKluced. In the cases which follow, questions arose as to how 
 far the liniR-rial statutes referreil to therein were in force. In Stinumi v. Pen- 
 nock, 14 (ir. (i04, it was held that tlie Iniiierial statute 14 tieo. 3 c. 78, which 
 provides for the application of insurance moneys in the re-building of the 
 iwniisea destroyed, upon the ap])licati(ni of a mortgagee, had lieen made a 
 l«rt of our pnivincial law ; but in the later case of Carr v. Fire Assurance 
 Amen.,^ 14 ()nt. 487, this decision was followed thougli with doubt. The Im- 
 l*nal Parliament has jxiwer by express words to apply its enactments to this 
 country; see IJ. N. A. Act and 31 Geo. 3 c. 31; Attorney-Oeneral v. 
 ('rw«, .5 (ir. 412; (ir. 200; 59 Geo. 3 c. 69; Rce/ina v. Schram, 14 C. P. 
 ^18, and see R^!,ina v. Shcrnuit., 17 C. P. 107 ; Rcgmu v. Slavin, 17 C. P. 205 ; 
 but without such express words, or some necessary implication to be drawn 
 therefrom, they do not apply : see Pcnley v. Beacon Asscc. Co., 10 Gr. 422 
 ffrVuakoughnet, C. 
 
 The 9 Geo. 2 c. 3H, commonly (though erroneously) called the Mortmain 
 Acttias, after some conflict of opinion, been held to have been introduced 
 m()ntario : Doc d. Anderson v. To<ld, 2 U. C. Q. B. 82 ; Hallock v. Wilson, 7 C. 
 r. 28; Mercer v. Hewston, 9 C. P. 349 ; Davidson v. Boomer, 15 Gr. 1, 218 ; 
 
20 
 
 THE JUDICATURE ACT. 
 
 See. 93. HaiMy v. Fuller, 22 C. P. 141 ; Ferguson v. Gihson, 22 Gr. 36 ; Whithy v. 
 
 Imperial Liscombe, 23 Gr. 1 ; Smith v. The Methodist Church, 16 Ont. 199 ; Butiavd 
 
 Statutes, V. Gillespie, 16 Ont. 486. 
 
 Yt ow f BtiT in 
 
 force in Whether the Imperial Marriage Act 26 Geo. 2 c. 33, is in force in Ontario 
 
 Ontario. has been the subject of a judicial difference of opinion : see JRegina v. Seeker 
 
 14 U. C. Q. B. 604 ; Hodgins v. McNeil, 9 Gr, 305 ; BegiTM v. Bell, 15 U. C. Q. B 
 
 287. 
 
 It has been held that the law of England in respect to the rights and powers 
 of rectors of churches as to the land vested in them as such, is in force in this 
 Province : Ltjstcr v. Kirkpatrick, 26 U. C. Q. B. 217 ; and see Kirkpatriek v. 
 Lyster, 13 Gr. 323 ; 16 Gr. 17. Lyster v. Kirkpatrick was decided in reference 
 to a rectory established by the Crown under 31 Geo. 3 c. 31 as. 38, 39, 
 but there can be little doubt that the enabling and restraining statutes of Heniy 
 8 and Elizabeth apply also to lands vested in bishops and incumbents in right 
 of their offices under the Church Temporalities Act (3 Vict. c. 74), a. 16. 
 
 The Nullum, Tempux Act 9 Geo. 3 c. 16, was held to be in force, but it 
 does not apply to unsurveyed waste lands of the Crown : Rcgina v. McCormicIt, 
 18 U. C. Q. B. 131. 
 
 The Imperial statute 12 Geo. 2 c. 28, against lotteries has been held to 
 be in force in Ontario : Croni/n v. Widiler, 1(5 U. C. <^. B. 356 ; Corhjj v, 
 McDanid, 16 U. C. q. B. 378 ; Marshall v. Piatt, 8 C. P. 189 ; Loud v. Clark, 
 11 C. P. 248 ; Cronyn v. Griffiths, 18 U. C. Q. B. 396 ; but see now R. S. C. 
 c. 159 88. 2-8. 
 
 Imperial 
 Statute 
 once 
 adopted 
 does not 
 cease to b* 
 operative 
 on its 
 repeal in 
 England- 
 
 An Imperial statute once introduced in Ontario does not cease to operate 
 even though rejiealed in England, until also repealed in Ontario; tliusthe 
 Imperial statute 22 Geo. 3 c. 4(>, which relates among other things to 
 attorneys sharing their business with jwrsons not admitted, tliough rei)ealediii 
 England is in force in Ontario : Dunne v. O'Reilly, 11 C. P. 404 ; and aw 
 Andrew v. White, 18 U. C. Q. B. 170. 
 
 1 W. & M. c. 18, relating to disturbances in church is held to be in forw, 
 and not superseded by R. S. C. c. 15, s. 2 : Reid v. Inglis, 12 C. P.191. 
 
 So also the Imperial statute 5 & 6 Edward 6 c. 16, against buying and 
 selling offices, was lield to have been introduced as part of our crimimal lawbv 
 40 Geo. 3 c. 1 ; and see 49 Geo 3 c. 126 ; Regina v. Mercer, 17 U. C. (l B. «02': 
 Regina v. Moodie, 20 U. C. C^. B. 389. 
 
 So also the Imperial ptatute 26 (Jeo. 3 c. 86 s. 2, which provides that 
 owners of ships shall not be liable for any loss or damage wliich may hapjien 
 to any goods shipiied on any such vessel by reason or means of any fire happen- 
 ing to such shii) is held to be in force in Ontario : Torrance v. Smith, 3C. P. 
 411 ; Hcarle v. Ross, 15 U. C. (J. B. 259. 
 
 So also many cases have judicially recognized the fact that the Statute of 
 Frauds (29 Car. 2 c. 3) : Dickson v. Jacques, 31 U. C. Q. B. 141 ; McCarik 
 V. Cooper, 12 Ont. App. 284 ; and the Imperial Statute of Limitation, 21 Jac. 1 
 c. 16 (see R. S. O. o. 60 s. 6) are in force in Ontario. 
 
 jurisdic- 2;$. The High Court shall have the like jurisdiction and 
 
 caMRwhere power as the Court of Chancery in England possessed on 
 formerly ^j^g jqjJj ^^^y ^f j^^^g^ jggy^ ^g ^ q^^^^ ^f Equitv to ad- 
 minister justice in all cases in which there existed no ade- 
 quate remedy at law. R. S. 0. 1877, c. 40, s. 86 ; 44 Y. 
 c. 5, 8.9 (I). 
 
 This section confers ujwn the High Court all the powers of the Enghsb 
 Court of Chancery on 10th June, 1857, whether derived from the Common 
 Law, or statutory enactment : see Re Hodges, 1 Gr. at p. 289, per Platen, \.C. 
 The general words of this section, however, are contnJled by other express 
 enactments of the Provincial Legislature. See sec. 22, notes supra. 
 
 no ade 
 quate 
 remedy 
 law. 
 
 at ' 
 
 24. The Higl 
 diction in mattei 
 England possessi 
 1877, c. 40, 8. 31 
 
 This section in the I 
 8. 2, and was confined 
 Law ap|)ear also to ha" 
 of reveinie : see R. S 
 28 Vict. c. 17, s. 2, it h 
 table jurisdiction in i-e 
 541 ; Miller v. Attorney 
 in revenue cases had b< 
 the Court had no jurist 
 of bail in a criminal ca 
 Sessions : Rantall v. ^. 
 that the Crown might | 
 withheld, although the: 
 demand : Attorney-Gen 
 
 25. The High 
 a forfeiture for b; 
 lease to insure agi 
 or damage by fire 
 opinion of the Co 
 mistake, or other 
 and there is an ir 
 cation to the Cou 
 insure, upon such 
 E.S.O. 1877, c. 4 
 
 Under the general jui 
 High Court independen 
 feitures in cases other 
 8s. 3 pout. Wherever 
 performance of some a< 
 breach of the act, or the 
 comiiensated in money, 
 '. .</., where the pavmeii 
 pay a stipulated siim by 
 security for legal intere 
 £«/</, 2 Atk. 2.39 ; Slon^ 
 W; Davis V. We.tt, 12 
 secured bv a covenant t 
 large, and as to others 
 considered to be a t)ena; 
 (lamages from the breac 
 in default of i)erformai 
 I* lef can be granted: ^ 
 Ifcx 0,59 The genera 
 Wief against forfeiture! 
 special circumstances : 
 Wdmn, 9 Ha. 683 ; Noi 
 fi; but see Bamford y 
 2Apn.Ca. 4.S9; neithei 
 Breach of a covenant by 
 Ai'Wfl.y, 18 Ves. at p. 
 
JURISDICTION OF HIGH COURT. 
 
 21 
 
 24. The High Court shall have the like equitable juris- secB. 24,25. 
 diction in matters of revenue as the Court of Exchequer intion^n*°' 
 England possessed on the 18th day of March, 1865. K. S. 0. »»»*t^«J| »' 
 1877, c. 40, s. 37 ; 44 V. c. 5, s. 9 (1). 
 
 This section in the Revised Statutes of 1877 was taken from 28 Vict. c. 17, 
 8. 2, and was confined in its tenns to the Court of Chancery. The Courts of 
 Law apjiear also to have had jurisdiction both legal and equitable in matters 
 of revenue : see R. S. O., 1877, c. 39, s. 4 ; and see s. 20 supra. Prior to 
 28 Vict, c. 17, s. 2, it had been held that the Court of Chancerj' had no equi- 
 table jurisdiction in revenue cases : see Norwich v. Attomcy-dleneraf, 2 E, & A. 
 541 ; Miller v. Attorney -General, !) Gr. .558 ; and even after equitable jurisdiction 
 in revenue cases had been conferred on the Court of Chancery, it was held that 
 the Court had no jurisdiction to relieve against the forfeiture of a recognizance 
 of bail in a criminal case, which had been estreated into a court of Quarter 
 Sessions : Raxtall v. Attomcy-Gencnil, 17 Gr. 1 ; 18 Gr. 138 ; but it was h^ld 
 that the Crown might proceed in Chancery for dues alleged to be fraudulently 
 withheld, although there were no equitable circumstances connected with the 
 demand : Attorney-General v. Walker, 25 Gr. 233. 
 
 25. The High Court shall have power to relieve against i^eiief 
 
 a forfeiture for breach of a covenant or condition in any forfeiture 
 lease to insure against loss or damage by fire, where no loss of covenant 
 or damage by fire has happened, and the breach has, in the ^"^'J'^^^'^ '"^ 
 opinion of the Court, been committed through accident or oases, imp. 
 mistake, or otherwise without fraud or gross negligence, cV s. 4. 
 and there is an insurance on foot at the time of the appli- 
 cation to the Court in conformity with the convenant to 
 insure, upon such terms as to the Court may seem fit. 
 E. S. 0. 1877, c. 40, s. 49 ; 44 V. c. 6, s. 9 (1). 
 
 Under tlie general jurisdiction of the Court of Chancery now vested in the 
 High Court independently of this section, it has jxjwer to relieve against for- 
 feitures in cases other than those provided for in this section : see sec. 58, 
 8-8. 3 pout. Wherever a i)enalty or a forfeiture is imposed to secure the 
 performance of some act, or the enjoyment of some right or benefit, if the 
 breach of the act, or the withholding of the right or benefit can be adequately 
 compensated in money, relief from the {lenalty or forfeiture may be decreed : 
 f. y., where the payment of a larger sum is imjwsed in the event of failure to 
 pay a stipulated sum by a given day, such larger sum is regarded as merely a 
 security for legal interest during the time the money is in default : A i/let v. 
 Dodd, 2 Atk. 239 ; Slonian v. Walter, 1 Br. Ch. 418 ; Sanders v. Pope, 12 Ves. 
 282 ; Davis v. West, 12 Ves. 475. So whore the performance of several acts is 
 secured by a covenant to pay a sum, which as to some of the acts, would lie too 
 large, and as to others too small, a comiiensation for the injury, the sum is 
 considered to be a tHsnalty : see Kemble v. Farren, (> Bing. 141. But where the 
 damages from the breach cannot be measured, then the sum agreed to be paid 
 in default of jierformance, is held to be liquidated damages from which no 
 relief can be granted : Atkyns v. Kinnier, 4 Ex. 770, 783 ; Galsworthy v. Strutt, 
 
 1 Ex. 059 The general leaning of the Court was fonnerly against granting 
 relief against forfeitures for breach of covenants to repair in the absence of 
 special circumstances : Hill v. Bardaii, 10 Ves. 402 ; 18 Ves. 02 ; Gregory v. 
 WHwh, 9 Ha. 083 ; Nokes v. Gibbon, 3 Drew 081 ; Croft v. Goldsmid, 24 Beav. 
 312; but see Bamford v. Creasy, 3 Giff. 075 ; Huijhrs v. Metropolitan Ry. Co., 
 
 2 App. Ca. 4.39 ; neither would the Court grant relief against a forfeiture for 
 breach of a covenant by a lessee not to assign the term without leave : Hill v. 
 
 ' y, 18 Ves. at p. 63. And prior to the 29 Vict. c. 28, a. 5, on which 
 
 ,^^^lrt 
 
 g^, '^ 
 
 '^HH 
 
 Im %. 
 
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 22 
 
 THE JUDICATURE ACT. 
 
 f 1 
 
 recorded. 
 Imp. Act 
 22-23 Vic. 
 C. 35, 8. 5. 
 
 r i 
 
 gAC8.26-2S. this section is founded, the Court of Chancery would not reheve against a for- 
 feiture for breach of a covenant to insure : Urccn v. Bria<ie», 4 hini. !M). Kehef 
 may be granted under this section in resiHJCt of a covenant contained in an 
 instrument made before the passing of the 2i) Vict. c. 28, as regards any 
 subsequent breach : Pnm v. Btnmtt, 2 Ciiff. 117. See further as to cases in 
 ..hich the Court will, or will not, relieve against jjenalties and forfeitures ; 
 Story's Eq. chap. 34. 
 
 By s. 58 s-s. 3, nont a general power is given to the Court to relieve against 
 all iienalties, forfeitures, and agreements for lirjuidated damages. Wlu^ther 
 the Court in the exercise of its discretion wdl relieve against forfeitures 
 which a court of Equity would not formerly relieve against, has not been 
 detennined. 
 
 When re- 2G. The Couvt, wbere relief is granted, shall direct a 
 teMhe""' record of such relief having been granted to be made by 
 r^P^rded''" indorsement on the lease or otherwise, li. S. 0. 1877, 
 c. 40, 8. 50; 44 V. c. 5, s. 9 (1). 
 
 The object of the indorsement required by this section is probably for the 
 purix)se of identifying the instrument, in resiwct of which the relief is 
 granted, to give notice to third i)ersons dealing with the proijerty, of the fact 
 that relief has been granted by the Court. In the case of lands this may also 
 be effected by the registration of the judgment. 
 
 To what 27. The preceding two sections shall be applicable in 
 'ceding pr^ the casc of Icases for a term of years absolute, or determin- 
 able on a life or lives or otherwise, and also in the case of 
 a lease for the life of the lessee or the life or lives of any 
 other person or persons. E. S. 0. 1877, c. 40, s. 51; 
 44 V. c. 5, 8.9(1). 
 
 jurisdic- 2^. In any action or proceeding in the High Court for 
 tion.^*'" partition or sale of the estate of joint tenants, tenants in 
 common or co-parceners, where any of the persons inter- 
 ested in the lands whereof partition or sale is sought are 
 unknown to the plaintiff, or have not been heard of for 
 three years or upwards, the Court shall have the same 
 Ke^ Stat, jurisdiction that, in proceedings under The Partition Act, 
 it possesses for the purpose of binding the interests of such 
 persons and dealing with the estate of such of them as by 
 reason of long continued absence may reasonably be be- 
 lieved to be dead ; and the like proceedings may be taken 
 in such action or proceeding for the said purposes as might 
 be taken upon a petition under the said Act ; and every 
 deed or vesting order made in any such action or proceed- 
 ing shall have the same effect as a deed or vesting order 
 made in proceedings under the said Act. R. S. 0. 1877, 
 c. 40, 8. 62; 44 V. c. 5, s. 9 (1). 
 
 The effect of this section is to enable the Court in an ordinary suit to avail 
 itself of the powers and authorities conferred ujxin it by the Partition Act, 
 
 visions 
 apply. 
 Imp. Act 
 22-23 V. 
 c. 35, s. 9. 
 
 C.104. 
 
 without re-sorting to tl 
 wtt, 8 (Jr. 44() ; Cassci 
 »ee /lilies !l!)8-{)91, and 
 
 2S>. The Higl 
 mony to any wif 
 law of England, 
 the law of Engla 
 thereto, or to an 
 her without any 
 which would enti 
 forrb.ititution of( 
 shall continue un 
 1877, c. 40, s. 43 
 
 The jnri.sdiction by t 
 jurisdiction fonnerly i 
 incident to proceedings 
 
 Where proceedings " 
 about to quit Ontario 
 plaintiff in particular, i 
 c. 67, H. 3, /iule 1088 : 
 Necdham, 29 Gr. 117 ; . 
 
 The defendant may I: 
 that the plaintiff canno 
 fhcrmn y. Macphersor 
 lite remains in force a; 
 jurisdiction : see Macd(\ 
 
 Pendiiig the action, . 
 for payment of interim 
 seeFonn!) A-., RuJ,e»m 
 
 Permanent alimony is 
 tion and cruelty : Sevci 
 with other acts of cnu 
 499 ; but not as a rule w 
 violence: Borlman v. 
 desertion and adultery 
 adultery alone : Hotoey i 
 of adultery : see Ferris 
 husband without suffici 
 Edwards, 20 Gr. 392. 
 application of the husba 
 V. Severn, 14 Gr. 150 ; b 
 as of right to ha/e a J 
 wards offering to receiv* 
 A bond given by a hu 
 the wife in pursuance of 
 36U. C. (2. B. 295; Re 
 
 80. An order o 
 in any Registry Of 
 80 long as the o: 
 force, bind the ei 
 which the defendf 
 
JURISDICTION OF HIGH COUKT. 
 
 28 
 
 without resorting to the procedure laid down in that Act : see Bennett v. Ben- 8608.29,801 
 „(tt 8 (Jr. 44(t ; Casscii v. Cassey, 15 Gr. 309 ; Munro v. Munro, lb. 431 ; and 
 see Ituh'ti !l!(8-9!)l, and notes, and post a. 34. 
 
 20. The High Court shall have jurisdiction to grant all- t^^^f^^^u. 
 mony to any wife who would be entitled to alimony by themony. 
 law of England, or to any wife who would be entitled by 
 the law of England to a divorce and to alimony as incident 
 thereto, or to any wife whose husband lives separate from 
 her without any suthcient cause and under circumstances 
 which would entitle her, by the law of England, to a decree 
 for rtjtitution of conjugal rights ; and alimony when granted 
 shall continue until the further order of the Court. R. S. 0. 
 1877, c. 40, s. 43. 
 
 The jurisdiction by this section conferred on the High Court, is part of the 
 jurisdiction formerly exercised in England by the Kcclesiastical Courts, as 
 incident to proceedings for divorce or judicial separation. 
 
 Where proceedings p.re instituted against a defendent for alimony, if he is 
 about to quit Ontario with intent to defraud his creditors generally, or the 
 plaintiff in particu!nr, ht; is liable to be arrested and held to bail : see R. S. O. 
 c. 67, s. 3, Rule 1088: Bichartlnon v. Richardson, 8 P. R. 274; Needham v, 
 Needham, 29 Gr. 117 ; Harn v. Earn, 4 U. C. L. J. 2(51. 
 
 The defendant may be discharged from arrest if on the facts it shall appear 
 that the plaintiff cannot reasonably be expected to succeed in the action : Mac- 
 pkcrmn v. Macpherson, 2 Ch. Cn. 222. The order of arrest issued pendente 
 lite remains in force after judgment even though the wife resides out of the 
 jurisdiction : see Macdonald v. Alacdonald, 5 U. C. L. J. (JO. 
 
 Pending the action, if the wife is in need of support, an order may be panted 
 for payment of interim alimony ; as to the mode of obtaining interim alimony : 
 see Form 9 A\, JttUes 738, 530, and notes. 
 
 Permanent alimony is granted where the husband has been guilty of deser- 
 tion and cruelty : Severn v. Severn, 3 Gr. 431 ; or desertion, where coupled 
 with other acts of cruelty, Ih. ; or cruelty alone : Jackson v. Jackson, 8 Gr. 
 ■J99 ; but not as a rule where he has only been guilty of a solitary act of (lersonal 
 violence : Rodman v. Rodman, 20 Gr. 428. So also it may be granted for 
 desertion and adultery : Henderson v. Henderson, 19 Gr. 464 ; and perhaps for 
 adultery alone : Hoioey v. Howcy, 27 Gr. 57 ; or for wrongfully accusing the wife . . 
 
 of adultery : see Ferris v. Ferris, 7 Ont. 49(5. But where the wife leaves the 
 husband without sufficient cause she is not entitled to alimony : Edwards v. 
 Edwania, 20 Gr. 392. A judgment for alimony may be suspended on the 
 application of the husband on proof of the wife's subsequent adultery : Severn 
 V. Seirrn, 14 Gr. 150 ; but a husband who has deserted his wife, is not entitled 
 as of right to ha.'e a judgment against him for alimony vacated on his after- 
 wards offering to receive and maintain her : Cronk v. Cronk, 19 Gr. 283. 
 
 A bond given by a husband to a trustee to secure the payment of alimony to 
 the wife in pursuance of a judgment, is not assignable : Reiffenstein v. Hooper, 
 36 U. C. q. B. 295 ; ifc Robinson, 27 Ch. D. 160. 
 
 30. An order or judgment for alimony may be registered Jadgment 
 in any Registry Office in Ontario, and the registration shall, miy bS**°^ 
 so long as the order or judgment registered remains inj|^^*^'** 
 force, bind the estate and interest of every description bind landa. 
 which the defendant has in any lands in the County or 
 
 
 r 
 
 ! 
 
24 THE JUDICATURE ACT. 
 
 ••0^ w- Counties where the registration is made, and operate there- 
 on in the same manner and with the same effect as the 
 registration of a charge by the defendant of a life annuity 
 on his lands. R. S. 0. 1877. c. 40, s. 44 ; c. Ill, s. 49. 
 
 A judgment for alimony is registered by means of a certificate : see R. S. 0. 
 c. 114, 8. 47. 
 
 The charge created by the registration of a judgment for alimony, binds all 
 the lands of the defendant in the registration division in which the registration 
 is made. The judgment itself dfjes not contain any clause creating a lien, not 
 does it 8i)ecify any lands to be bound ; it can only^ be registered among the 
 instruments having no local description : (see R. S. O. c. 114, s. 25). The 
 simple fact of registration creates the charge. This charge may be enforced 
 by a petition in the alimony action when the defendant has made default in 
 l)aying the alimony ordered to bo paid. Upon such a petition the Court may 
 order the land bound by the judgment, or such part thereof as may be deemed 
 necessary, to be sold and the purchase money to be applied in payment of the 
 arrears of alimony, and the alimony as it accrues, i or form of order in such 
 a case : see Forrester v. Forrester, D. B. 37, fo. 232. 
 
 Vesting 31. In cvcry case in which the Court has authority to 
 effector, order the execution of a deed, conveyance, transfer or 
 assignment of any property, real or personal, the Court 
 may by order vest such real or personal estate in such per- 
 son or persons, and in such manner, and for such estates, 
 as would be done by any such deed, conveyance, assignment 
 or transfer if executed ; and thereupon the order shall have 
 the same effect as if the legal or other estate or interest in 
 the property had been actually conveyed, by deed or other- 
 wise, for the same estate or interest, to the person in whom 
 the same is so ordered to be vested, or in the case of a 
 chose in action, as if such chose in action had been actually 
 assigned to such last-mentioned person. R. S. 0. 1877, 
 c. 40, s. 101 ; 44 V. c. 5, s. 9 (1). 
 
 Only inter- The power of the Court to grant a vesting order extends to every case where 
 osts of par- it has power to order the execution of a conveyance, transfer, or assignment, of 
 ties before any property, real or personal; but the Court cannot order the execution of 
 ha"' ^^y. conveyance by any person who is not before the Court and amenable to its 
 vested. jurisdiction, and it can therefore only vest the interests of those who are before 
 the Court and subject to its jurisdiction : Re Heioish, 17 Ont. 454. 
 
 Where lands are sold under the judgment or order of the Court, a convey- 
 ance by the jierson having the legal estate is all that is necessary to vest the 
 title in the purchaser. It is not necessary that parties to the suit having 
 purely equitable interests should also join in the conveyance : Boss v. ^ede, 1 
 Ch. Ch. 94 ; Moore v. Shinners, 1 Ch. Ch. 59 ; but persons having equitable 
 interests who are not parties to the action would not (unless represented suffi- 
 ciently by persons who are parties), be bound by the judgment. It is therefore 
 necessanr for a purchaser, before taking either a conveyance or vesting order, 
 to see tnat all persons having any interest, have been made parties, or are 
 properly represented by persons who are parties, and are bound by the judg- 
 ment. 
 
 By a vesting order, all the interest, le^al and equitable, of the parties to the 
 action, or any of them, may be vested in the person named in the order : Re 
 
 xj I Li - '■' - . -^^^ -A ^-C-^"^ ^c^,<'r( ,y ^z..- ■''*■• -^'1 
 
 Effect of 
 
 vesting 
 
 order. 
 
 / f ? //.. 4^c/^ ■/fi<«'/ /«rvvy <^^\ 
 
 P'^ 
 
 
 
 ji<A 
 
JURISDICTION OF HIGH COURT. 
 
 26 
 
 Robertson, 22 Gr. 449. Even though some of them be infants : Donaldson v. See. 31. 
 
 Berrv 2 Ch. Ch. 16. But where the legal estate was in the plaintiff, who Vesting 
 
 became the purchaser himself at a sale imder a decree, the Court refused to order when 
 
 make a vesting order because it had no jKiwer to order him to convey to him- refused. 
 
 self: Boiccn v. Fox, 1 Ch. Ch. 387. In such cases the purchaser's title 
 
 would be made out by the production of the judgment and the master's report 
 
 on sale duly confirmed ; (see per Maclennan, Q.C., ar(/umdo, 22 Gr. 452) ; 
 
 but this has lieen thought an unsatisfactory mode of jirovinjr that the equitable 
 
 rights have been extinguished, and in some cases under snnilar ciroumstances 
 
 vesting orders have been made, no objection thereto being raised by the 
 
 parties. 
 
 A vesting order will not be granted to a purchaser except on proof of pay- 
 ment of his inirchase money, or on evidence entitling him to an order dispens- 
 ing with its payment. 
 
 The purchaser is entitled to a conveyance with ordinary covenants for title, Purchaser 
 and he cannot te compelled to accept a vesting order : see Slater v. Fisken, 1 entitled to 
 Ch. Ch. 1 ; but he may, if he chcwse, take a vesting order instea^l. deed. 
 
 In Slater v. Fisken, supra, it was held that a jmrchaser, before taking a vest- Evidence. 
 ing order, was entitled to proof that the persons whose estates were sold were 
 alive at the time of the sale ; but in deducing title under a vesting order it has 
 been held unnecessary to give this evidence because the order will be presumed 
 to be rightly made until the contrary is shown : Ite Morse, 8 P. R. 475 ; and 
 see Gunn v. Doble, 15 Gr. 055 ; Shaw v. Crawford, 4 Ont. App. 371 ; McLean v. 
 Grant, 20 Gr. 7«. 
 
 Upon a sale of the lands of infants under an order of the Court, it was held Where 
 that an application for a vesting order by the purchaser might be made with- granted 
 out notice to the infants : Boulton v. Ste<iiimn, 1 Ch., Ch. I!t9 ; but see Thorne^'^^^*''- 
 V. Chute, 2 Ch. Ch. 221. _ So also a vesting order has been granted ex parte 
 where a party to the action was ordered to convey, but could not be found 
 after due diligence : McNair v. Simpson, 1 Ch. Ch. 299 ; and see Lawrason v. 
 Buckley, 3 Ch. Ch. 270, where the costs of the motion were ordered to be 
 paid out of the purchase money. But where one of the ]>laintiffs had become 
 the purchaser in a mortgage action, notice of a motir)n to disiiense with pay- 
 ment into Court and for a vesting order was required to be given to the 
 mortgagor who had appeared in the suit : McMaster v. Kempshall, 1 Ch. Ch. 
 329. 
 
 Where a purchaser takes a vesting order he usually waives all objection to Purchaser 
 the title, and if iK>ssession has not previously Ijeen delivered to him, he assumes taking v. o. 
 the resiwnsibility of obtaining jxjssession "■ Bull v. Harper, G P. R. 3C ; and waives ob- 
 where a purchaser after the lapse of a year from obtaining a vesting order, iftie etc 
 applied to lie allowed comijensatiou in resjject of certain taxes which the ' 
 vendor should have paid, the application was refused : Kincaid v. Kincaid, 6 
 P. R. 93. But so long as the puroha«e money remains in court, an application 
 by a purchaser who has inadvertently taken a vesting order witliout first 
 requiring incumbrances to be paid off, to have the incumbrances discharged 
 out of the purchase money, will be granted : Fleminy v. McDouyall, 8 P. R. 
 200; Turrill v. TurrUl, 7 P. R. 142. 
 
 As regards infants, whose estates have been sold under the direction of the Infants. 
 Court, the Court may order some person to execute the conveyance in the 
 place of the infants : R. S. O. c. 137, s. 5 ; and the Master in Ordinary or a 
 Local Master may, in like manner, be ordered to execute a dee<l fur adult parties 
 who have been committed to gaol for contempt in refusing to execute the same, 
 after the expiration of two calendar months from their being committed or 
 detained under such jirocess ; 11 Geo. 4 & 1 W. 4, c. 3(5, s. 15. See ante 
 e. 23; Lcdyard v. Campbell, O. B. 26, fo. 719. 
 
 Under the Imperial Trustee Act, 1850, the Court has also power to make Trustee 
 vesting orders. See sees. 5, 6, 7, 9, 10, 13, 14. 15, 16, 19, 23, 25, 34, 35, and Acts, 
 under sec. 20, wherever the Court can under that Act make a vesting order it 
 may also appoint some {lerson to execute a conveyance. 
 
B1 I ' < 
 
 26 
 
 THE JUDICATUHE ACT. 
 
 ; 
 
 
 j 
 
 
 See. 32. 
 JuriBdic- 
 tion of 
 Court of 
 Chancery 
 iu reipect 
 to leaseH, 
 settled 
 estates, 
 estates of 
 infauts, 
 and special 
 cases. 
 
 m 
 
 32. — (1) The High Court shall have the same jurisdiction 
 as the Court of Chancery in England had on the 18th day 
 of March, 186'), in regard to leases and sales of settled 
 estates, and in regard to enabling infants, with the appro- 
 bation of the Court, to make binding settlements of their 
 real and personal estate on marriage ; and in regard to ques- 
 tions submitted for the opinion of the Court in the form of 
 special cases on the part of such persons, as may by them- 
 selves, their committees or guardians, or otherwise, concur 
 therein. R. S. 0. 1877, c. 40, s. 85 ; 44 V. c. 5, s. 9. 
 
 (2) The examination of a married woman apart from her 
 husband, as to her knowledge of the nature and effect of an 
 application for the sale or leasing of any settled estate, or as 
 to her consent thereto, shall in no case be necessary unless 
 expressly directed by the Court or a Judge. 
 
 (3) Infants and persons of unsound mind (not so found), 
 required to be served with notice of any application to the 
 High Court, may be served by delivering to the official 
 guardian ad litem a copy of the petition or other proceeding 
 required to be served ; and from the time of ?uch service, 
 the said official guardian shall be the guardian ad litem of 
 the infant or person of unsound mind, unless and until the 
 Court or Judge, otherwise orders ; and the said official 
 guardian, or any other guardian appointed by the Court 
 for the infant or person of unsound mind, shall take all 
 such proceedings as he may think necessary for the protec- 
 tion of the interests of the infant or person of unsound 
 mind in the proceeding in which he is so appointed guardian. 
 
 (4) In case there be more than one infant or person of 
 unsound mind (not so found) for whom service is made on 
 the official guardian ad litem, one copy only of the petition 
 or other proceeding, need be so served, but the name of 
 each person on whose behalf the official guardian is served, 
 is to be stated on the copy served. 
 
 (5) Money realized from the sale or leasing of any settled 
 estate or any interest therein, shall be paid, applied or in* 
 vested, as the Court or a Judge shall direct. 49 V. c. 16, 
 8. 8. 
 
 Settled Leases and Sales of Settled Estates.— The jurisdiction of the English 
 
 estates, Court of Chancery in regard to leases and sales of settled estates on the 18th 
 leases and March, 1805, was regulated by the Imp. Acts 19 & 20 Vict. c. 120 ; 21 & 22 Vict 
 sales or. c. 77 ; 25 & 2« Vict. c. 108 : 28 Vict. c. 45. As to what are settled estates within 
 
 the meaning of these Acts, see Ri Laing, 1 Eq. 416 ; CoUett v. Colktt, 2 Eq. 
 
 203 ; Re Shepheard, 8 Eq. 571 ; Bcioki/ v. Carter, 4 Chy. 230. 
 
JUIUSDICTION OF HIGH COURT. 
 
 27; 
 
 This section inodifteH the practice prescribed by those Ntatutes. 
 
 Tilt- Court has no power under this section to order the sale of a part of a "^^"^g 
 ttled estate in order to make improvements on tiie remainder : Uf Moore, leases a 
 
 Bee. 32. 
 
 Settled 
 
 ()53 ; nor can it sanction an exchange 
 
 and 
 sales of. 
 
 (•(I'.R, 2«; Rr Chnmhrrs, 28 Beav 
 BeBiKliujn-ick; 21 (ir. mx 
 
 A|)|)liciitii)ns under this section must be made to a Judge and not to tiio 
 Master in Chambers or any local .ludge or local Master : Rulcn 3(t, 41, 138. 
 
 Errors in the advertisement of the application to lease or sell a settled estate 
 niav he wuived by the Court, if in its t)pinion they are not misleading ; Re 
 Whitdy, 8 Va\. 574 ; Re BicknvU, 14 Kq. 4(»7 : Re Hemnhy, 10 Eq. 315. 
 
 The marriage of a i)etitioner after the jniblication f)f the advertisement was 
 held not to lie a ground for requiring its republication : Re Marshall, 15 Eq. (Mi. 
 And on tiie death of a i)etitioner after advertisement, the jietition nnvy l)e 
 amended by stating the fact, and substituting a new petitioner : Re Wilkinxon, 
 9 Eq. 71. 
 
 Where projierty was vested in a trustee in trust after the death of the 
 tenant for life to sell and divide the proceeds among numerous ]iersons who 
 would l)econie absolutely entitled, with power to the trustee to give receipts, on a 
 petition by the tenant for life under Imp. Act li> & 20 Vict. c. 120, for a sale of 
 the pro|)erty, it was held under sec. 17 of the Act that the consent of all the 
 beneficiaries was necessary : Re Iven, Ba ilei/ v. Holiacs, 3 Ch. D. (ilH). The persons 
 whose consent is required by section 17 are i)er.sons whose consents are capable 
 (if being obtained. The consent of imascertained jtt'rsons who are interested 
 is not requisite. : Beioley v. Carter, 4 Chy. 230 ; Re Utrutt, 1<J E<i. 629 : Re 
 PoUf, lt> Eq. «3lJ^. 
 
 Settlements. — The jurisdiction of the English Court of Chancery as to Settle- 
 sanctionin;^ marriage settlements by infants of their property, was on the 18th ments 
 Mareh, l«o5, regulate*! by the Imp. Stat. 18 & 1» Vict. c. 43. The Act does not ^V infanti. 
 apply to males under twenty years nor females under seventeen years : see 
 sec 4. An applicati(m for the sanction of the Court to a settlement does not 
 constitute the mfant a ward of Court so as to necessitate the Court to inquire 
 into the pro[iriety of the marriage : Seton, 76(>. 
 
 This Act only enables the Court to remove the bar of infancy, but it does 
 not enable an infant, even with the sanction of the Court, to do more than an 
 adult could do : e. ff., where an infant was a married woman and made a ix)8t- 
 nuptial settlement with the sanction of the Court under the above mentioned 
 .\ct, but the settlement was one which would not have bound her if she had 
 been an adult ; it was held, notwithstanding it had received the sanction of 
 the Court, to be invalid : Buckmatter v. Buckmastcr, 35 Ch. D. 21 ; 5<i L. T. 
 X. S. 795 ; 13 Anp. Cas. Gl ; Milla v. Fox, 37 Ch. D. 153. But the Act enables 
 an infant with the sanction of the Court to make a valid post-nuptial settle- 
 ment BO far as an adult can make one : Rt Wall, 50 L. T. N. S. 435. 
 
 In England applications for the sanction of the Court to a settlement by 
 an infant are required to be supported by evidence to show, (1) The infant's 
 age ; (2) If there is any parent or guardian ; (3) If none, what near relatives, 
 and with whom, and under whose care the infant is ; (4) Infant's parents' rank 
 and ixjsition ; (5) Infant's fortune and projierty ; ((!) The age, rank and position 
 of the other party ; (7) His projierty, fortune and mcome; (8) The fitness, and 
 consent to act, of the trusteed : Seton, 766. 
 
 Special Cases. — The jurisdiction of the English Court of Chancery in Special 
 regard to s{)ecial cases on the 18th March, 1865, was regulated by Imp. Stat, cases. 
 13 k 14 Vict. c. _ 35. By this Act a special caae may be stated without com- 
 mencing an action. Provision is maide by Rules 554-558 for stating a s^iecial 
 case after action commenced. 
 
 By 13 & 14 Vict. c. 35 {supra), a. 1, persons interested in any question as to 
 the construction of any Act of Parliament, deed, will, etc., or as to the title, 
 etc,, to any real or personal estate contracted to be sold, or as to any other 
 matter falling within the jurisdiction of Equity, may concur in stating a 
 
 ^ 
 
28 
 
 860.88. 
 
 Special 
 oasei. 
 
 i 
 
 Fictitious 
 questions 
 nofcienter- 
 tained. 
 
 THE JUDICATURE ACT. 
 
 siiecial case for the opinion of the Court, and executors, adminiHtratorg and 
 trustees may concur therein. By s. 2 the committee of a lunatic's estate may 
 concur with the sanction of the Lord Chancellor or of the Lords .Justices j (but 
 in Ontario the sanction of any one of the Judges of the High Court would mm 
 to be sufficient : R. S. O. c. 54, s. 2.) By s. 3 a husband may concur for hig 
 wife, if she has no distinct interest ; and if lier interest is distinct, she may 
 concur if her husband does so. By s. 7 the siiecial case is to be entitled u a 
 cause; lunatics, infants, etc., are to be described as such, and their guardiam 
 named. But in Ontario the service on jiersons under disability and the 
 apiwintment of guardians ad litem for them, is regulated by s. s. 3 supra, 
 
 A married woman, if plaintiff, and her huslmnd defendant, is to have a next 
 friend (acd vide R. S. O. c. 132, s. 14 ; Itule 314). By s. 9, the special case is to 
 state how any infant's guardian is constituted (xvd vide s. s. 3 supra); and the 
 concurrence of any married woman concurring in her own right. It would 
 seenk ])roijer that the case should be signed by all parties, or their solicitorg, 
 or guardians ad litem. By s. 14, the Court, ujkju the hearing, majr determine 
 the questions raised, or any of tliem, and by decree declare its opinion without 
 proceeding to administer any relief consequent thereon ; or may decline t(i 
 decide. By s. 1.5 the declaration is tf) indemnify trustees. By s. 1(5 the Court 
 may suspend acting on the declaration on such conditions, if any, as it thinks 
 fit. By s. 17 the case is to be a lis pendens, and may be registered as such. 
 By s. 18 the documents referi'ed to, and copies thereof, or extracts therefrom, 
 identified by the signatures of the solicitors for the parties or their Toronto 
 agents, may be read without further prtxrf, and semhle they ought to Ix) put in 
 at the hearing and marked by the Registrar : Watson v. Jtodwell, 11 Ch. D. 
 1!jO, lf)3 ; and any document admitted by the case to he in the jJosseHsion of 
 any party may after appearance by the defendants be ordered to be deposited 
 and produced. By s. 32 the costs of all prrxjeedings under the Act are in the 
 discretion of the Court. By s. 33 all decrees and orders are to be subject to 
 rehearing, apjieal and review, and to be discharged and varied as if made on 
 bill. 
 
 Fictitious questions will not be entertained, so as to give the Court jurisdic- 
 tion in matters not cognizable under the Act : Pri/se v. Pryse, 15 Eq. 8(5 ; and see 
 Key v. Key, 4 D. M. & G. 73. All i)ersons beneficially interested should be 
 l)arties : Entwistle v. Cannon, 4 W. R. 4.50 ; and trustees must be parties tea 
 case for construing the trust deed : Vorley v. Richardson, 8 D. M. & G. 126. 
 Where some of the parties beneficially interested are out of the jurisdiction, 
 but others having identical interests are before the Court, the pi-esenc "f the 
 absentees may in the discretion of the Court be dispensed with : lie Brown, 
 29 Beav. 401. 
 
 The case must be framed so that the rights of the parties can be determined, 
 or the Court will decline to answer the questions submitted : Bulkely v. Hof(, 
 4 W. R. 280. The Court will not act on inferences drawn by the parties, but 
 necessary facts should be proved by affidavit : Bomville v. Lamb, 9 Ha. Iv. 
 
 The case may be amended : see Rule 44 ; but where a material fact was 
 omitted in the case, but was admitted by all parties at the hearing, prefacing 
 the order with a recital to that effect was held to be sufficient : Lane v. Dekn- 
 ham, 11 Ha. 188 ; 17 Jur. 1005. 
 
 The provisions of sub-section 3 supra only apply to proceedings under 
 section 32: Wolf \. Ogilvy, 12 T.R. Mb. 
 
 maytry "he **' ^^^ ^^8^ ^^^^^ shall have jurisdiction to try the 
 validity of validity of last wills and testaments, whether the same 
 respect real or personal estate, and whether prohate of the 
 will has been granted or not, and to pronounce such wills 
 and testaments to be void for fraud and undue influence or 
 otherwise, in the same manner and to the same extent as 
 
JURISDICTION CP HIOH COURT. 
 
 29 
 
 the Court has jurisdiction to try the validity of deeds and ^^ »*• 
 other instruments. K. S. 0. 1877, c. 40, s. 41 ; 44 V. c. 5, fHWo wiiis, 
 
 ., jitrisdiC' 
 
 S. v» tlon of 
 
 HiRh 
 Oriifinally the jurisdiction to try the validity of lost wills atid testaments Court. 
 ■itfectincr personal estate belonffod exclusively to the Court of Pnjbate ; and 
 wlitre tlu'V affected real estate, it belonged to the Suiierior Courts of law : see 
 Storv'f Vai s. 1445. This section is a i)eri)etuation of an Act (12 Vict. c. fi4 
 l»a.xs('(l in IMU) which conferred a concurrent jurisdiction in reference to 
 tiiese matters uixm the Court of Chancery. 
 
 The Provincial Court of Probate was established in 1793 by 33 CJeo. 3 
 c. 8 ; and in 18.58 it was abolished, and the Surrogate Courts were constituted 
 on their present basis by 22 Vict. c. 03. 
 
 The jurisdiction of the High Court, as regards wills affecting personalty, 
 (le|)eii(lH on this section ; but as regards wills affecting realty the jurisdiction 
 of tiu) Higii Court would seem to depend not <mly on this section, but also i-ii 
 secM. 20 iiiui ST), by which the jurisdiction of the former Sujierior Courts of law 
 is vested in the High Court. 
 
 For cases on which wills liave lieen contested on the ground of the mental inca- 
 pacity of the testator : see Brown v. Brucr, 1!> U. C. Q. B. 35 ; Mcmieg v. 
 White, i) (Jr. .574 ; Kmes v. Enu'ii, 11 (ir. 325 ; Martin v. Martin, 15 (Jr. .586 ; 
 ImioUM))! V. Iniialdabti, 20 Gr. 131 ; Wihon v. Wilson, 22 Gr. 3!) ; and for cases 
 in which wills have lieen sought to be set aside as having been obtained by 
 undue influence ; see Watcrhouse v. Lee, 10 Gr. 176 ; Donaldnon v. Donaldson, 
 12 Gr. 431; Wihon v. Wihon, 22 (4r. 39; 24 Gr. 377; lie White, Kenien 
 V. Tnne, 22 (ir. 547 ; 24 Gr. 224 ; Thompson v. Torrance, 28 Gr. 253 ; 9 Ont. 
 Ai>p. 1. 
 
 This section provides that the Court may pronounce wills void for fraud and 
 undue influence or otherwise in the same manner and to the same extent as the 
 Court has jurisdiction to try the validity of deeds and other instruments. 
 The cases in which Courts of Equity are accustome<l to set aside deeds and 
 other instruments for fraud, where tfioy are voidable and not merely void, are 
 first where there is actual fraud in the i)arty defendant in which the party 
 plaintiff has not participated. Secondly, where there is a constructive fraud 
 against public jjolicy, and the party plaintiff has not participated therein. 
 Tnirdly, where there is a fraud against jmblic policy and the party plaintiff 
 has participated therein, but nublic jwlicy would be defeated by allowing 
 it to stivnd. And lastly, where tnere is a constr active fraud by both parties, bub 
 they are not in pari delicto : Story e. 695. 
 
 34. The High Court shall also have jurisdiction- 
 
 jurisdic- 
 tion. 
 
 1. In matters testamentary as provided in sections 30 in matters 
 to 32 inclusive of The Surrogate Courts Act. R. S. 0. 1877, ttr'y "K^eV. 
 c. 40, 8. 42. 8»**- "• so- 
 
 2. On any appeal from the judgment or decision of the Appeals 
 Commissioners under The Act to Prevent Trespasses to Puh•^^^nt 
 lie Lands, as provided in said Act. R. S. 0. 1877, c 
 B. 88 ; c. 27, s. 19. 
 
 jf\ of CommiB- 
 *", sioners 
 
 under Rev. 
 
 Stat. c. 29. 
 
 3. In respect of lunatics and infants and their property Lunatics 
 and estates, as provided by The Act respecting Lunatics and fants.^" 
 The Act respecting Infants. R. S. 0. 1877, c! 40, ss. 58, 75. ""^53 f^**- 
 
wn 
 
 1^ 
 
 80 
 
 THE JUDICATURE ACT. 
 
 i 
 
 i 
 
 li 
 
 flCOl.30,36. 
 
 To§taiii«n- 
 tury Knard- 
 iaiiH. Kev. 
 Stat. e. 1H7. 
 I'aptitioii. 
 Uuv. Stat 
 c. IU4. 
 
 General 
 jurisiUc- 
 tioii. 
 
 4. In respect of guardians and trustees, as provided by 
 The Act respecting Infants. R. S. 0. 1877, c. 40, b. 84. 
 
 5. In I'espect of partition and sale of real estate as pro- 
 vided in The Partition Act. R. S. 0. 1877, c. 101, sa. 5, 7. 
 
 Matters Testamentary. Th-.i diiiist«s of thf SurniKutt; Cimits Act icfiTred 
 to, pi'ovidf for tlif traiiffcr of (.'oiitcntiouM iimtter.-i rc-KHrflinif the ffraiit of pro- 
 liivtf or ailiiiiiiistratioti from tlic .Surro^'iitc (-ourt to tin' HIkIi Court ((() wlu-n- 
 tlif piirtii'i ajfrt'c, or (')) wherf a .liulgf of tlif High Court no onlfrw. 
 
 Tlu' HIkIi Court lias also an oriKJual jurisdiction to k''""' K'tters of udniiniii- 
 tratioii, or li-ttt-rs of administration ml litiin : Riih' .311 ; but it has no ori^iiml 
 
 i'urisdiction to grant pndtatf of a will ; an<l when' a case is transferred to the 
 ligh Court from the Surrogate Court, it is usually ultimately remitted to the 
 .Surrogate Court, to iss\ie iiroliate or administration as the case may require; 
 TliiiiiifiHiiii V. 'I'i>rr(iiic(', 1?H (Jr, 2.')H ; see Decree in that case : I). 11. 3", fo. 1!(2. 
 
 Infants. The jurisdiction by this section conferred on the High Com-t over 
 infants is cumulative on that alreaiiy conferred imder section 21, s-s. 2, and ». 
 23. As to the general jurisdiction of the Court over infants : see Story's J"Jq., 
 c. 3;"). 
 
 Ouardians and Trustees. The same observation applies in regard to the 
 jurisdiction over trustees ; see mitt s. 21, s-s. 2 and s. 23. 
 
 Partition.— The like observation applies in regard to the j\irisdictioii in 
 Partition : see sect. 2.% iiiitr and Story's Kcp, cha|). 14, and see (intr s. 28. The 
 jurisdiction under the I'liditimi Act may be e.xeivised in any ordinary action of 
 partition ; and it would .seem that it is not e.s.sential that the |)rocedure pre- 
 Hcrib'd by that Act should be strictly jmrsued, in order to enable the Court to 
 exercise any s|)ecial j)owers conferred by that Act : svv Jiiiinctt v. Jiiniiitt,i< 
 Gr. 440; Ca»gvii v. Cumcy, \'y (Jr. 3!»!t. 
 
 35. The High Court shall have, generally, all the juris- 
 diction which, prior to the 22nd day of August, 1881, was 
 vested in, or capable of being exei'cised by, the Court of 
 Queen's Bench, Court of Chancery, Court of Common Plea?;, 
 
 nifl 
 
 liaol 
 
 . and 
 
 a con- 
 
 t'ct to the 
 
 The 
 
 ifTh 
 
 and Courts of Assize, Oyer and Terminer, 
 Delivery (whether created by commission ore*' 
 the High Court shall be deemed to be and s 
 tinuation of the said Courts respectively (s, 
 provisions of this Act) under the said name of ' ' 
 Court of Justice for Ontario." 44 V. c. 5. s. 9 (1). 
 
 Criminal JlUlsdlctioa— Some doubt has been expressed as to whether 
 under The Jiulicaturc Act any criminal jurisdiction had been conferred on the 
 Chancery Division : see 23 C. L. . J. 181. The Chancery Division has on 
 several occasicjns exercised criminal juiisdiction without objection : see JtiviM 
 V. Webster, l(i Out. 187 ; JUyiim v. Brkrlii, 14 Ont. .525 ; Heijina v. Fee, 13 Ont. 
 590. See, however, Rcij. v. Bcemcr, 15 Ont. 206, 272. 
 
 Any Division of the High Court is a Court for Crown Cases reserved: 
 R. S. C. 0. 174, 8. 2. 
 
 furismc^ *^* The jurisdiction of the High Court shall include 
 
 Judges (s."^J6ct to the exceptions hereinafter contained) the juris- 
 
 continued, diction which, at the commencement of this Act, was 
 
 vested in, or capable of being exercised by the Judges of 
 
 the said Courts, respectively, sitting in Court or Chambers, 
 
 
JURISDICTION OF HIGH COURT. 
 
 81 
 
 or elsewhere, when acting as Judges in pursuance of any •»•«•■ 37, 88. 
 statute or law ; and all powers given to any such Court, 
 or to any such Judges, by any statute ; and also all minis- 
 terial powers, duties, and authorities incident to any and 
 everv part of the jurisdiction. 44 V. c. 6, s. 9 (2). 
 
 Swt KiiK. •'"'l- Act i)f 1S73, H. l(». 
 
 |„ t|„i i<(,i'i'('s|Hin(liii(,' KngliNli Mi^ction 10 tho nhiiio CinirtH nre iii(>iitii)n<*(l nn 
 al)<)ve, ami several otlicrH ; and the jiiriHdictioii in said to be "transferred to" 
 tlic Ilitfl' Cdiirt an exprnHHioii wliicli Ih not used in this Act. 
 
 Whore ft person fraudulently |H>rsonating' a testator liad forced niortu'axes of 
 till' ti'statdf s estate and an action was hrou^'lit to olitain a decliiration that cer- 
 (,(i„ ,ni,rtga^res were void, and to have them delivered up, Kay, .F., lookinff at 
 tiii.i Himctineiit said that he was not lulniinisterin^ eouity merely, and siiould 
 tliert'fiirf K'^'' tile plaintiff his legal remedy as to tiie deeiis, and (lireut them to 
 liedclivcrt'd uii as wi^ll iis declare them void : Cimfirr v. ViKtil, 51 L. .1., Chy. 
 1111; MClilsri .WiniinrK V. Mar, 2)1 Ch. 1). T-i). 
 
 »7. Every Judge of the High Court shall have, use and JfjifJU^j,*"^ 
 exercise all the rights, incidents and privileges of a Judge "f Judges. 
 of a Court of Record, and ail other rights, incidents and 
 privileges as fully to all intents and purposes as the same 
 were, prior to the 5th day of December, 1859, used, exer- 
 cised or enjoyed by any of the Judges of any of Her 
 Majesty's Superior Courts of Common Law at Westmin- 
 ster, k S. 0. 1877, c. 89, s. 6. 
 
 JIH. The Judges of the High Court shall, in rotation or AJudee to 
 otherwise as they may agree among themselves, sit in chambers. 
 Chambers or elsewhere, and there transact any such busi- 
 ntrisas may be transacted by a single Judge out of Court, 
 wi.ether such business be in the Division of the High Court 
 to which such Judge is attached or in another Division, 
 subject to the right of appeal as provided in this Act and 
 tlie Rules from time to time in force. R. S. 0. 1877, c. 89, 
 S.26. 
 
 As to the business which may be transacted in Chambers : see Kide 542 ; as 
 totkjiiri.sdietionof the Master in Chambers, Local .Tudges, and Local Masters, 
 in Chaml)ers. id the various matters excluded from their jurisdiction : see 
 
 It was held by Armour,.!., that an apix^al from the Master in Chambers 
 might be brought before the Jud^e of any Division, and that the different 
 Divisions merely exist for convenience in the distribution of work, but that 
 there is IK) n-ason why a .Judge of any Division should not hear a motion in 
 Chambers ill m action in any other Division: Laidlaw Mnnufncturing Co. v. 
 Mer, 11 1 H. 335 ; but In re Christie, Christie v. Christie, 12 P. R. 15, 
 Ferguson, .T., held that under The Judicature Act, ISSl, sec. 25, a cause must be 
 set down to be heard in the Division to which it is assigned. It'may be well 
 to note that only i)art of s. 25 referred toby Ferguson, .J., has been continued : 
 see Rule 225 ; ana the clause requiring all proceedings to be taken in the Divi- 
 sion to which the cause is attached, does not aimear to be now in force, although 
 it must be confessed if any other practice be Mlowed it is likely to produce 
 serious confusion. 
 
 
 

 32 
 
 THE JUDICATURE ACT. 
 
 Sect. 89-4L It seems clear from section 38 that the Judge of any Division has jurisdiction 
 to disjiose of applications in Chambers in actions in any other Division ; but 
 where the application has to be set down it would seem to be impR)i)er to set 
 it down in any other Division than that in ivhich the action is rending. 
 
 39. Atiy person Bitting or acting as Judge at any Assizes 
 or Sittings of the High Court for^ the trial of ciidses, 
 
 Any one 
 whilst 
 acting as 
 
 AsBile'in matters, and issues, in the City of Toronto, may, while au 
 
 nTw^act' as sitting or acting as sucli Judge, or while the Assizes or Sit- 
 
 Judge in tings last, act as a Judge in Chambers in all matters as if 
 
 am ers. ^^ ^^^^ ^ Judge of the High Court. E. S. 0. 1877, c. 39, 
 
 s. 27; c. 41, s. 10. 
 
 This section applies to the acting Judge of Assize at the City of Toronto, a 
 similar provision is made by the following section in regard to the acting Judge 
 of Assize in any outer County. 
 
 The i>ower to act in chambers hereby conferred, may be exercised not only 
 by a Judge of the Supreme Court, but by any retired Judge of the Supreme 
 Cfourt, Judge of a County Court, or Queen's Counsel, appointed to hold the 
 assizes under s. !)4 post. 
 
 The jurisdiction in Chambers under this section would seem to extend to all 
 actions, and not merely those entered for trial : see sec. 40, post. 
 
 Orders made by a Judge at the assizes in actions set down for trial thereat 
 should be signed by the officer who acts as registrar at such sittings : Wafihon 
 V. Hawkins, 12 P. R. 14.5. The same rule probably applies to orders made in 
 Cliambers by the Judge of Assize. 
 
 It is the duty of the officer signing the order to see that it is in jirojier form 
 and correctly embixlies the order actually made by the Judge, and that the 
 Court fees thereon are duly paid. 
 
 I^nm°"a8 ^®* ^^^ person acting as a Judge at any Assizes or 
 Judge of Sittings of the High Court for the trial of causes, matters, 
 durinV"it^ and isfcues, may, in and for the County in which he is act- 
 al°JudKe*in ^"8' ^"^^ while the sittings of the said Court last, act as a 
 Chambers. Judge in Chambers in all matters entered for trial before 
 
 him, as if he weie a Judge of the High Court. B. S. 0. 
 
 x877, c. 89, 8. 28 ; c. 41, s. 9. 
 
 See note to sec. 39. It will be noticed that this section is not so wide in its 
 terms as sec. 39, and the jurisdiction in Chambers hereby conferred on the 
 Judge of Assize is nut general, but limited to the " matters entered for trial 
 before him." 
 
 .Turisdic- 41. The scveral jurisdictions vested in the said High 
 exorcised Court, shall not be exercised except [in the name of] the 
 HighcJTurt! said High Court as provided by this Act, save as otherwise 
 in this Act provided. 44 V. c. 5, s. 10. 
 
 In Eng. J. A. 1873, s, 22, waa the wo-.d "by" instead of the words in 
 brackets. 
 
 Orders made by a single Judge in Court, or in Chambers, are not drawn up 
 as the order of the Judge makirr them, but of the High Court. All judg- 
 ments and orders, whether made Ly a singl" Judge or by a Divisional Court, 
 are to show the names of the judge or judges who pronounced the same : Ituh 
 
JURISDICTION OF COURT OF APPEAL. 
 
 83 
 
 779, Thin is usually done by inserting the name or names of the Judge or Seos. 43,48. 
 Judges in the margin of the order under the title of the Court, e, g. " In the 
 High Court of Justice, Chancery Division, Proudfoot J." 
 
 42. The jurisdiction (a) [of j the High Court of Justice y^^^fj"^ 
 and the Court of Appeal, respectively, shall be exercised exercised 
 (so far as regards procecJure and practice) in the manner to'^ruiesot 
 provided by this Act, or by Rules and Orders of Couit now^*""*- 
 in force or to be made pursuant to this Act ; and whore no 
 special provision is contained in this Act or in any such 
 Bules or Orders with reference thereto, it shall be exercised 
 as nearly as may be in the samel manner as prior to the 
 22nd day of August, 1881. 44 V.i c. 5, s. 12. 
 
 (a) Instead of the word "of," the Englis^ Act has the words "by this Act 
 transferred to. " 
 
 The c<)i 
 repeals the 
 
 including clause must be taken to be modified by 
 he practice and procedure existing prior to 22nd Ai 
 
 Rule. 3 pout, which 
 ug. 1881 (except in 
 
 certain cases in which it is expressly continued in the Con. Biilen) and provides 
 that in the absence of any si>ecial provision the practice is to \)e regulated by 
 analogy to the Con, Bules : see Notes to Rule 3 and sec. 110. 
 
 The Consolidatfd Rules were confirmed, and all inconsistent enactments in 
 the Revised Statutes reiwaled by 51 V. c. 2. s. 4. 
 
 JURISDICTION OF COURT OF APPEAL. 
 
 43. The Court of Appeal shall ''e a Superior Court Juiisd'c- 
 of Eecord and shall {a) [have appellate jurisdiction in court of 
 civil and criminal cases ; and] in civil cases shall have ^pi'®*^ 
 jurisdiction and power to hear and determine appeals from 
 any judgment or order, save as hereinafter mentioned, of 
 tlie Hifrh Cou 1 1, or of any Judges thereof, subject to the 
 provisions of this Act, and to such Rules and Orders of 
 Court for regulating the terms and conditions on which 
 appeals shall be allowed, as are now in force or to be made 
 pursuant to this Act. 44 V. c. 5, s. 13. 
 
 fa) Heiv the original sec. (13) of Jud. Act, 1881, harl the wonls "continue to 
 have all tlic jurisdiction iin<l iKiwer wliich the said Court IiaH hen-tofore hatl, 
 Mve as varifd by or unde,- tliin Act." The «ul)Htitut«'d woijs follow the lan- 
 guage iif the R. S. O. c. 38 s. 18, which defined tiie jurisdiction of tiie Court of 
 
 A|)|)eal. 
 
 The wurds in brackets ar»> not in the English section. The section otherwise 
 Cdrresixnu'is wit!) the first part of the English J. A. sec. IJ). 
 
 In civil and criminal cases, the jurisdiction of the Court of A])iK>al is ap]Hd- 
 late oiily : see Brown v. C'ulliim, W. N. 1883, 155. It has original jurisdiction 
 
 in Election cases (s. 45). 
 
 The pre-existing ap|M'llate jurisdiction in civil cases was if anything enlarged 
 bv the original of this section (J, A. 1881 c. 13) which conferred the jurisdic- 
 tion to entertain an apj eal from any " judgment or onler " ; stte Attii.-Ocn. v, 
 Bndhuiih, 14 (-i. B. D. 0(57, and notes to sec. 70. The right of appeal was then 
 also mode subject to new restrictions : see sees. 06 et. leq. and notes. 
 
 J.A. 8 
 
 '^#^ 
 
 A^^ 
 
 >^*li 
 
84 
 
 THE JUDICATURE ACT, 
 
 ri i 
 
 '4: i 
 41 
 
 Sees, 44,40. In the Revision of the Statutes the words "any judgment or order" have 
 evidently been considered wide enough to include the cases particularly men- 
 tioned in R. S. 0. 1877 c. 38 s. 18, viz. : judgments in cases arismg in arbitration 
 matters, motions for mandamus and to quash by-laws. 
 
 In giving an opinion on a special case, the jurisdiction exercised by a Court 
 is judicial, not consultative, so that its decision is a "judgment or order"; 
 Overseers of Walsall v. L. d: N. W. Ry. Co., 4 App. Cas. 30. 
 
 In Harmon v. Park, 29 W. R. 750 ; 17 C. L. J. 389, it was held that an 
 appeal would lie to the Court of Appeal from the C. P. Div. on a question as 
 to whether a petition against a municipal election was pro^jerly instituted u 
 being an order of the High Court of Justice though the Act, under which the 
 petition was presented, provided that a decision upon the hearing of the peti- 
 tion should not be api)ealable. See also Corporation of Peterboro' v. Will- 
 thorpe, 12 Q. B. D. 1. See further the notes to sec. 70. 
 
 The same, 
 
 pi 
 
 :. I 
 
 m 
 
 I Hi' 
 
 44, The Court of Appeal shall also have jurisdiction, as 
 provided elsewhere in these Bevised Statutes, and gener- 
 ally shall have all the jurisdiction and power which the 
 said Court has heretofore had (save as varied by or under 
 this Act.) 
 
 1. In appeals from County and District Courts, as pro- 
 vided in 2'he County Courts Act, and The Act Respectinij 
 Infants. 
 
 2. In appeals from Surrogate Courts, as provided in Tk 
 Surrogate Courts Act. {See also Cap. 137, s. 19.) 
 
 3. In appeals from Division Courts or a Surrogate Judge 
 as provided in The Division Courts Act. 43 V. c. 8, s. 17; 
 47 V. c. 10, s. 9. 
 
 4. In appeals from Provisional Judicial District Courts 
 as provided in The Unorganized Territories Act. 
 
 5. In appeals from Stipendiary Magistrates, as provided 
 in section 31 of The Unorganized Territories Act. 
 
 6. In appeals from a Judge of a County Court upon an 
 appeal from a conviction or order arising out of or under 
 The Liquor License Act, as provided in the said Act. 
 47 V. c. 34, s. 19. 
 
 7. In appeals from a Judge of a County Court, as pro- 
 vided in The Act respectina Water Privileges. R. S. 0. 
 1877, c. 38, s. 19. {See aZao Cap. 120, s. 15.) 
 
 tion^in"" **• '^^^ Court of Appeal shall also have jurisdiction in 
 election Election cases, as provided by The Voters' Lists Act, The 
 ^tit.'^?"' Ontario Election Act i and The Controverted Elections Acl 
 »-io R. 8. 0. 1877, c. 38, s. 20 ; 45 V. c. 7, a. 7. 
 
 Bev. Stat. 
 CO. 47, 137. 
 
 Rev. Stat. 
 c 50. 
 
 Kev- Stat. 
 0.61. 
 
 Bev.;stat. 
 o.Ul. 
 
 Kev. Stat. 
 C.91. 
 
 Bev. Stat 
 c. 104. 
 
 i;ev. Stat, 
 c. 119. 
 
JURISDICTION OF COURT OF APPEAL. 
 
 85 
 
 46. The Court of Appeal shall have power to quash pro- ^*J'^*^' 
 ceedinga in cases brought before it, in which appeal does pi^eed*' 
 not lie, or where such proceedings are taken against good^;, 
 faith. R. S. 0. 1877, c 38, s. 21. 
 
 47. The Court shall have power to dismiss an appeal, li^^l^ij. 
 or give any judgment and make any decree or order which o^dw may 
 ought to have been made, and to direct the issue of any quired, 
 process, or the taking of any proceedings in the Court 
 
 below, or to award restitution and payment of costs, or to 
 make such further or other order as the case may require* 
 R.S.O. 1877, c. 38, s. 23. 
 
 The Court may make such order as ia justified b^ the law as then existing,, 
 though the effect be to vary a decision of the Court below, which was in 
 accordance with the then existing law : QuUter v. Maplcfon, 47 L. T. N. S. 501. 
 
 The role generally followed by the Courts is not to review the findings of Bevlew of 
 the Judge of first instance, when his decision deiienda upon the balance of questions 
 testimony : Hale v. Kennedy, 8 Ont. App. 157 ; Cook v. Patterson, 10 Ont. ^ ""'• 
 App. 645. 
 
 The Appellate Court, however, is not deterred from reversing such a judg- 
 ment merely by the consideration that the Judge of first instance had the 
 advantage of seeing the demeanour of the witnesses and their manner of giving 
 their evidence, unless the decision of the case rests uiK>n the credibility of the 
 witnesses, and the .Judge in determining the credit to be given to them pro- 
 ceeded uix)n their demeanour ; see Day v. Brown, 18 Gr. 681 ; Morrison v. 
 Robinson, 19 Gr. 480 ; Armstrong v. Gatje, 23 Gr. 1 ; Ryan v. Htfan, 5 S. C. R. 
 406; The. Picton, 4 S. C. R. 648 ; LitUe v. Brunker, 28 Gr. 191 ; The Gianni- 
 hanta, 1 P. D. 283 ; Bigsby v. Dickinson, 4 Ch. D. 24 ; Symington v. Siiminyton, 
 L. R. 2 Sc. App. 424 ; Gray v. Turnbull, ib. 53 ; Redgrave v. Hurd, 20 Ch. D. 
 1i; Trwnpour\. Saytxyr, 1 Ont. Aim. 104; Taylor v. Taylor, ib. 264; Re 
 RaiMph, ib. 331 ; The Milanese, 43 L. T. N. S. 107. 
 
 Where the Appellate Court has the same materials before it as the Court 
 whose deciHion it is reviewing, the above considerations do not ai>ply : Red- 
 grave v. Hurd, 20 Ch. D. 23 ; and the Court will exercise its judgment on the 
 evidence juHt as it would on a question of law. It will reverse the judgment 
 if satisfied that it is wrong : Bcrdan v. Greenwood, 20 Ch. D. 769 »i ; Jonrn v. 
 Hough, 5 Ex. D. 122; Prentice v. Consolidated Bank, 13 Ont. App. 69; other- 
 wise it will affirm it : Symington v. Symington, sup. ; Hale v. Kennedy, 8 Ont. 
 App. 157. See also Canl v. Cooley, 4 C. h. T. 248 ; Berthier Election Case, 9 
 S. C. R. 102; Grasett v. Carter, 10 S. C. R. 105. 
 
 Where tlio case does not so turn \i\to\\ th i credibility of the witnesses but 
 upon the proper inference to be drawn from all the evidence in the case, it is 
 the duty of tne Court to review the conclusion arrived at by the Court below 
 u|)on the questions of fact: Russell v. Ijefrancois, 8 S. C. R. 335; ('ainenm v. 
 hkkford, 11 Ont. App. 52. Thus, where, without differing from the Judge as to 
 the cn-dibility of the witnesses, tn« Ap|iellat« Court came to a different con- 
 clusion uix)n the evidence, documentary and written, the judgment was reversed : 
 Camenm v. Bickford, 11 Ont. Anp. 52. 
 
 Read V. Anderson, 13 Q. B. D. 781, where Brett, M.R., said that the Court 
 of Apjieal was not bound by the findmgs of fact by a Judge who tried the case 
 without a jury is not inconsistent with the alxivo cases. 
 
 In a]>|)eals to the Judicial Committee of the Privy Council, where there 
 have Ih'i'u concurrent findings of fact by the Courts below, the question in 
 •ppeal in the P. 0. is not what conclusion the P. 0. would have arrived at 
 
 <M 
 
 M '^' 
 
t.f i 
 
 86 
 
 THE JUDICATURE ACT. 
 
 . 
 
 ^^i 
 
 i ■■' 
 
 1 
 
 't 
 
 
 •)■; 
 
 
 
 
 
 J 
 
 I 
 
 i 
 
 1 
 
 - i 
 
 il 
 
 
 
 LI 
 
 
 
 
 ■1 
 
 
 ■powers of 
 a single 
 Judge in 
 Court o{ 
 Appeal. 
 
 8aoa.4S-8L if the matter had rime for the first time before them, but whether it has been 
 established that the Courts below were clearly wrong : Allen v. (Jitebec Wan- 
 house Co., 12 App. Cas. 111. 
 
 cou®t"f°' ^®* ^^^ powers of the Court of Appeal may be exer- 
 Appeal, cised, notwithstanding that the appeal is brought against 
 part only of the judgment of the Court below ; and may Le 
 exercised in favor of all or any of the respondents or 
 parties, although such respondents or parties may not have 
 appealed from, or complained of the judgment. B. S. 0. 
 1877, c. 38, s. 25 ; 15 V. c. 6, s. 7. 
 
 49. In any cause or matter pending before the Court of 
 Appeal, any direction incidental thereto, not involving the 
 decision of the appeal, may be given by a single Judge of 
 the Court of Appeal ; and a single Judge of the Court of 
 Appeal may at any time during vacation make any interim 
 order to prevent prejudice to the claims of any parties 
 pending an appeal, as he may think fit ; but every such 
 order made by a single Judge may be discharged or varied 
 by the Court of Appeal or a Divisional Court thereof. 
 44 V. c. 6, s. 41. 
 
 Identical with £ng. J. A. 1873, s. 62. 
 
 r"ai*TOm" *^** ■^°** *^^ *^^ purposes of and incidental to the hear- 
 
 uie High ing and determination of any such appeal, and the amend- 
 
 rourt'of ment, execution, and enforcement of any judgment or order 
 
 haveali*" made on such appeal, and for the purpose of every other 
 
 fiighcourt authority given to the Court of Appeal by this Act, the 
 
 said Court of Appeal shall have all the power, authority 
 
 and jurisdiction by this Act vested in the High Court. 
 
 44 V. c. 5, 8. 14. 
 
 This corresiwnds substantially with the second part of the English J. A., 
 1873, section 19. 
 
 This section only confers additional powers on the Court of Ap])eal without 
 interfering with tne practice under the Rules ; so that execution for cDstn, 
 etc., awarded by the Court of Apiieal is to be issued out of tiie Court api)eal«l 
 from Freed v. Orr, 2 C. L. T. 90 ; see Lowson v. Canada Farmers' Jut. Co., 
 8 Ont. App. 613, and Ride 830. 
 
 51. The jurisdiction and power of the Court of Appeal, 
 in respect of the said matters and all others, shall be and 
 are subject to the provisions of this Act, and to such Eules 
 and Orders of Court for regulating the terms and con- 
 ditions on which such appeals shall be allowed, as are now 
 in force or as may be made pursuant to this Act. 44 V. 
 c. 5, s. 15. 
 
 Same in effect as Eng. J. A., 1873, s. 19, first part. 
 
 Jurisdic- 
 tiou sub- 
 ject to 
 rules, et< 
 
RULES OF LAW. 
 
 87 
 
 RULES OF LAW. 
 
 53. In every civil cause or matter commenced in the seo. oa. 
 High Court of Justice, law and equity shall be administered eqiJity^^ 
 by the High Court and the Court of Appeal respectively be concur- 
 according to the rules following : ^"ni^terei 
 
 1. If any plaintiff or petitioner claims to be entitled to 
 any equitable estate or right, or to relief upon any 
 equitable ground against any deed, instrument, or con- 
 tract, or against any right, title, or claim whatsoever 
 asserted by any defendant or respondent in such cause or 
 matter, or to any relief founded upon a legal right which 
 heretofore could only have been given by a Court of Equity, 
 the said Courts respectively, and every Judge thereof, shall 
 give to such plaintiff or petitioner such and the same relief 
 as ought to have been given by the Court of Chancery in a 
 suit or proceeding for the same or the like purpose pro- 
 perly instituted before the passing of The Ontario Judica- 
 ture Act, 1881. 44 V. c. 5, s. 16 (2). 
 
 Taken from Eng. J. A., 1873, s. 24, sub-seo. 1. 
 
 This and the next section deal with the old anomaly of different Courts* 
 recDgnizing different rights and duties, applying different remedies to the same 
 case, and in somi cases even enforcing rules of law in conflict with one another, 
 Tiie removal of the conflict of law is provided for by sec. 63. The rest of the 
 matter is dealt with in the present section, the provuiiuna of which have been 
 summarised thus : — 
 
 The plaintiff may assert an equitable claim in any Division of the High 
 Court (siib-s. 1) ; and may obtain an equitable remedy ni any Division (ibid) ; 
 the defendant may raise any equitable answer or defence to any claim ; that is 
 to say, anything which would fonnerly have been good by way of answer if the 
 suit hiul lieen brought in Chancery (sub-s. G), or would have afforded ground 
 for an injunction if the action had tmon brought at law (sub-s. 9) ; and he may 
 assert, by way of counter claim against the {naintiff, any claim, legal or equit- 
 able, which he might have raised by a cross suit at law, or in equity (sub-s. 7) : 
 the defendant may also obtain relief relating to, or connected with, the original 
 subject of tiie action, against other persons, whether already parties or not 
 (ibiil). All Courts are to i-ecognise equitable rights incidently appearing 
 (sub-s. 8) ; no cause is to be restrained by injunction ; what would have been 
 (jruuiid for injunction is to be raised by way of defence, or u}x>n an application 
 to stay proceedings (sub-s. !(). Subject to these provisions, common law 
 rights and duties are to be recognised (sub-s. 11). Every Court is to apply all 
 apiiropriate remedies, and di8ix>st) of all matters in controversy (sub-s. 12). 
 (Wilson Jud. Act, 7th ed., p. 15). 
 
 By the oiieration of the Act each Division of the High Court is to administer 
 justice iux>ording to so nmch of the principles of the two old systems as may be 
 necessary to give complete and effectual relief to suitors : (fibbs v. Uiiild, 
 9 y. 13. D., (Hi i)er Low! Coleridge citing Piujh v. Heath, 7 Ajm. Cas. 237 ; 
 therefore concealed fraud, and the absence cf means of discovery, will, if pleaded, 
 prevent the application of the Statute of Limitations, as formerly in pure 
 Equity pnweedmgs : Oihhs v. Oiiild , 8 Q. B. D., 29G, 9ii. B. D., 59; Jiarberv. 
 HvuMiDi, 14 L. R. Iv. 273 j irreajieotive of the question whether such matters 
 formerly constituted at law a good answer to a plea of the Statute. 
 
 
88 
 
 THE JUDICATURE ACT. 
 
 y !i 
 
 I i!l 
 
 V ' 
 
 fleo. SX In Adamson v. Adamson, 7 Ont. App. 592, the opinion was expressed by 
 
 (l)-{4). Burton, J. A., that the owner of an equitable estate cannot notwithstanding 
 the Jud. Act, proceed to recover i^ssession of land against a trespasser in pos- 
 session, but was bound to sue in the name of the person having the legal 
 estate. This opinion did not form part of the judgment of the Court in the 
 case, and was founded uix)n the view that before the Administration of Justice 
 Act, 1873, ejectment would not lie in such a case, and that the latter Act only 
 enabled the Court of Chancery to entertain suits for ejectment in the same way 
 as the Courts of Common Law. The point, which did not there distinctly 
 arise, as the proceedings were before the Jud. Act, has since been considered in 
 Heenan v. Heenan, 3 C. L. T. 1(53, and Tlumie v. Williams, 13 Ont. 677 ; see 
 also Jones v. McGrath, IG Ont. 017, where the o]>inion was expressed that since 
 the Jud. Act, such an action may be maintained by the e<iuitable owner in his 
 own name. But see Sai/lnr v. Cooper, 2 Ont. 398; Fairclnui/h v. Marshall, 
 4 Ex. D. 37; and Ooodrich v. Evenjtyn ('":' "o., W. N. 1889, 152. 
 
 For definitions of "plaintiff," " i)etitioner, " "defendant," see s. 2. 
 
 jurisdic- 2. The High Court shall have jurisdiction to entertain 
 vaudity o° au actiou at the instance of either the Attorney-General for 
 statute.'*^ the Dominion, or the Attoraey-General of this Province for 
 a declaration as to the validity of any statute, or any pro- 
 vision in any statute of this Legislature, though no further 
 relief should be prayed or sought ; and the action shall be 
 deemed sufficiently constituted if the two officers aforesaid 
 are parties thereto. A judgment in the action shall be 
 appealable like other judgments of the said Court. (See 
 sec. 55.) 49 V. c. 16, s. 38. 
 
 8. (Subject to appeal as in other cases,) the High Court 
 shall have power to relieve against all penalties, forfeitures 
 and agreements for liquidated damages, and in granting 
 such relief to impose such terms as to costs, expenses, 
 damages, compensation and all other matters as the Court 
 thinks fit. 49 V. c. 16, s. 38. 
 
 See also sees. 25, 62 (8) to which this section is supplementary. Similar 
 power was at the same time (see 49 V. c. 16, s 38) conferred upon the County 
 and Division Courts : see R. S. O. c. 47 s. 21, and c. 51 s. 73. It has not been 
 determined whether power is given to relieve against a forfeiture which a 
 Court of Equity would not formerly relieve against ; e. g. for breach of a cov- 
 enant not to assign or sublet without leave. A forifeiture for such a breach 
 was not formerly relieved against in Equity : Hill v. Barclay, 18 Ves. 03, and 
 the relief does not seem to be contemplated by R. S. O. c. 143 (see sec. 11 
 sub-s. G, passed in 1886 in the same Session in which the present ser tion was 
 enacted. 
 
 4. No appointment, which after the 25th day of March, 
 1886, is made in exercise of a power to appoint any pro- 
 perty real or personal among several objects, shall be 
 adjudged to be invalid on the ground that any object of the 
 power has been altogether excluded, and an appointment 
 shall be valid and effectual notwithstanding that one or 
 more of the objects shall not thereby or in default of 
 
 Relief 
 against 
 penal ti«B, 
 etc- 
 
 Appoint- 
 ment 
 under 
 power- 
 
RULES OF LAW. 
 
 89 
 
 appointment take a share or shares of the property which JweS"' 
 is subject to the power. ^ '^ ' 
 
 But nothing in this sub-section shall prejudice or afifect 
 any provision in any deed, will, or other instrument creat- 
 ine a power, which shall declare the amount or the share 
 or^ shares from which no object of the power shall be 
 excluded, or shal' declare some one or more object or 
 objects of the power who shall not be excluded. 49 V. 
 c. 16, s. 38. 
 
 Adopted from Imp. Act, 37, 38 V. c. 37. 
 
 As to the law before the Act, see Bultecl v. Pliimmer, L. R. G Chy. 100. The 
 Act api)lies only to an ai)pointment made after 25th March, 188(>, not to one 
 made before, though only taking effect after that date : see Moyiiau v. Moynan, 
 1 L. R. Ir. 382. 
 
 5. No action or proceeding shall be open to objection on Decia,ra- 
 the ground that a merely declaratory judgment or order is mentVlnd 
 sought thereby, and the Court may make binding declara- °f**«'8. 
 tions of right, whether any consequential relief is or could 
 be claimed or not. 48 V. c. 13, s. 6. 
 
 This section is an amended reproduction of Chy. O. 538. 
 
 That order was held only to apply to cases ' here the plaintiff was entitled to 
 relief consequent upon the declaration he asked, if he chose to claim it, but it 
 was held not to apply to cases where the plaintiff was not entitled to claim any 
 relief consequent ujwn the declaration : ttonke v. Lord Kingsdawn, 2 K. & J. 
 7')S; Clarke V. ('<«)/:, 23 Gr. 110; Vmjswelly. Sugdeii,24GT. 474; Brookeav. Conley, 
 8 Ont. .549. Thus, a decree was pronoimced declaring the true construction of 
 a will, without directing administration, in a case where the plaintiff was entitled 
 to the latter relief if he desired it : Murphy v. Murphy, 20 Gr. 675 ; and see 
 Canmla Centnd Ry. Co. v. The Queen, lb. 303. This section was passed to enable 
 the Court to i)ronounce a declaratory decree whether consequent relief could be 
 claimed or not. But notwithstanding the pjower thus conferred the jurisdiction 
 will be exercised with great caution : Aunteiiy. Collins, 54 L. T. N. S. 903. 
 
 A declaratory decree was refused under the former practice where it was 
 sought for the purix)se of protecting the plaintiff, against a contingent claim by 
 the defendant : Jackson v. Turnley, 1 Drew 617 ; and see Coyttwell v. Siigdeti, 
 supra ; and also where it was sought to affect future rights in events which had 
 not happned : Lanydale v. Brujfjii, 8 D. M. & G. 391 ; howling v. Itmoling, L. R. 
 1 Chy. bl2 ; or jjerpons entitled in reversion : (Jarlic v. Lawsmi, 10 Ha. App. 
 XV ; or not in esse, Bright v. Tyndall, 4 Ch. D. 189 ; or to declare a purely legal 
 question as against infants, even by consent ; \VM v. Byng, 8 D. IkL & G. 
 633 ; he Winilt v. lie Windt, 1 L. R. H. L. 87 ; or to declare a merely legal right : 
 TruMees of Itirkenliemi Hacks v. Laird, 4 D. M. & G. 732 ; Brislirw v. XVhitmore, 
 4 K. &. .T. 743 ; Metropolitan Board of Works v. Sant, L. R. 7 Eq. 197 ; Jenner 
 V. Jenner, L. R. 1 Eq. 361. 
 
 But in some cases the Court made a decree declaring future rights. Thus 
 the question of the right of renewal, on which a lessee's claim to compensation 
 for land taken by a railway dei)ended, was declared : Bogg v. Midland Ry. 
 Co., L. R. 4 Eq. 310 ; and, to save expense, it I 
 
 Declara- 
 tory judg- 
 ment not 
 ? ranted in 
 avour of 
 party who 
 would not 
 be entitled 
 to relief. 
 
 Cases in 
 wbich dec- 
 laratory 
 decrees 
 have been 
 refused- 
 
 articles : Byam v. Jiyam, 19 Beav. 58. 
 
 ; has construed executory marriage 
 
 Cases in 
 which dec- 
 laration of 
 right made- 
 
 6. If any defendant claims to be entitled to any equit- ^i2",|Jf'''' 
 able estate or right, or to relief upon any equitable ground* * 
 
 • 
 
 i 
 
 t 
 
 
 ^«v. 
 

 40 
 
 THE JUDICATURE ACT. 
 
 >«o. 63,(7). against any deed, instrument, or contract, or against any 
 right, title or claim asserted by any plaintiff or petitioner 
 in such cause or matter, or alleges any ground of equitable 
 defence to any claim of the plaintiff or petitioner in such 
 cause or matter, the said Courts respectively, and every 
 Judge thereof, shall give to every equitable estate, right, or 
 ground of relief so claimed, and to every equitable defence 
 so alleged, such and the same effect, by way of defence 
 against the claim of such plaintiff or petitioner, as the 
 Court of Chancery ought to have given if the same or the 
 like matters had been relied on by way of defence in any 
 suit or proceeding instituted in that Court for the same or 
 the like purpose before the passing of The Ontario Judi- 
 cature Act, 1881. 44 V. c. 5, s. 16 (3). 
 
 Identical with Jud. Act, 1873, s 24, sub-s. ?. 
 
 See this section applied in Mosfi/n v. IC. Mostyn, 1 C. P. D. 14f) ; Ifiifjhes v. 
 MetntpiiUtan, etc., ih. 120 ; Kyre v. lliijhes, 2 Ch. D. 148 ; Marshall v. MarahaU, 
 6 P. D. 19 ; Emitiersnn v. Ind., 12 App. Cas. 300. See also sub. -sec. 8. 
 
 7. The said Courts respectively, and every Judge tbereof 
 shall also have power to grant to any defendant in respect 
 of any equitable estate or right, or other matter of equity, 
 and also in respect of any legal estate, right or title claimed 
 or asserted by him, all such relief against any plaintiff or 
 petitioner as such defendant shall have properly claimed 
 by his pleading, and as the said Courts respectively, or any 
 Judge thereof, might have granted in any suit instituted 
 for that purpose by the same defendant against the same 
 plaintiff or petitioner ; and also all such relief relating to 
 or connected with the original subject of the cause or 
 matter, and in like manner claimed against any other per- 
 son, whether already a party to the same cause or matter 
 or not, who shall have been duly served with notice in 
 writing of such claim pursuant to any rule of Court or any 
 order of the Court, as might properly have been granted 
 against such person if he had been made a defendant to a 
 cause duly instituted by the same defendant for the like 
 purpose ; and every person served with any such notice 
 shall thenceforth be deemed a part)' to such cause or 
 matter, with the same rights in respect of his defence 
 against such claim, as if he had been duly sued in the or- 
 dinary way by such defendant. 44 V. c. 6, s. 16 (4). 
 
 This sub-section is identical with ihe Eng. ,T. A. 1873 s. 24 (8). 
 
 Identical with 
 
RULES OP L\W. 
 
 41 
 
 The BtUes respecting net-ofl and counter-olaims {Rule 373, etc.,) and See. 83, (8). 
 third parties (Rules 328-332) were made in furtherance of the powers conferred 
 by this sub-section. Se3 notes to those Rttles. 
 
 As to how far Rules made have been made to regelate the exercise of the 
 powers conferred by this section of granting relief between co-defendants, see 
 Trelumin v. Bray, 45 L. J., Chy. 113 ; and notes to Rttle 328. 
 
 In Mudije v. Adams, 50 L. J. Pro. 49 ; 17 C. L. J. 369, an action propound- 
 ing the will of a married woman made after she had obtained a protection order, 
 and h "^ome possessed of separate estate, the defendant set up that the protec- 
 tion order had been fraudulently obtained, and claimed by way of cross relief 
 to have it set aside, the will pronounced against, and administration granted 
 to th(^ defendant ; aiid it was held to be within this section as asserting by 
 counter-claim what might be asserted in a suit against the same plaintiff. 
 
 A defendant is not bound to make his cross claims in the same action, but 
 may assert them by cross action. Thus where an action was brought against 
 8hipi)er8 and consignees for damages for detention at the port of lading, and 
 for freight, and the defendants brought a cross action for a larger sum for 
 damages for loss of cargo by the shiiKJwners' negligence and the writs were 
 issued (in the same day and statement of claim delivered first in the fomier 
 action, a Master stayed proceedings in the second action with liberty to the 
 plaintiffs in it to file a counter clahn in the first action ; but it was held on 
 apjieal that though there was jurisdiction to make such an order, it should 
 only be exercised where the points in issue are the same, and that in the case 
 in question tlie right to bring a cross action should not be interfered with : 
 Aikmsuti V. Tilt/; 44 L. T. N. S. 420. See also the notes to sec. 52 (9) and 
 Rule (M2. 
 
 As to the effect of the concluding words of this section, see Fowler v. Knoop 
 in note to Rule 328. 
 
 8. The said Courts respectively, and every Judge thereof 
 shall recognize and take notice of all equitable estates, 
 titles, and rights, and all equitable duties and liabilities 
 appearing incidentally in the course of any cause or matter, 
 in the same manner in which the Court of Chancery would 
 have recognized and taken notice of the same in any suit 
 or proceeding duly instituted therein before the passing of 
 this Act. 44 V. c. 5, s. 16 (6). 
 
 Identical with the Eng. J. A. 1873 section 24 (4). 
 
 Ill W'illiaim V. Snmmien, W. X. 1880, 124, a plaintiff in ejectment was 
 orflerwl siiecifically to j)erform an agreement to lease the premises to defendant, 
 wlii( h ajjreement though not raised by defence, api)eared incidentally in the 
 (imse. See Mo.iti/ii v. 11'. Mnstjin, etc., 1 C. P. D. 145, where it incidentally 
 iip|)eareil that a party was entitled to have a deed rectified. See also cases in 
 note t(i sub-sec. C. 
 
 The doctrine of Equity whereby part i)erformance furnishes a ground for 
 enforcing a contract not enforceable at Law by reason of s. 4 of the Statute of 
 of Frauds, is confined t<j suits as to the sale of interests in land, and has not 
 been extended by the Jud. Act. The ,Tud. Act confers no new riglits, but 
 alters procedure only : Jhitnin v. /iossi/er, 11 Q. B. D. 123. See also O'ibbs v. 
 V. </iiild, i» q. B. D. (»7, and notes to sec. 53, sub-sec. 8. 
 
 Under this sec. relief was given against a forfeiture in an action to re-enter 
 for breach of covenant for payment of taxes which the defendant paid before 
 statement of claim deliverecf : Buckley v. lieiyle, 8 Ont. 86. 
 
 Set. 52 (3) also now enables the Court to relieve against penalties and 
 forfeitures. 
 
www. 
 
 42 
 
 THE JUDICATURE ACT. 
 
 8*0. 53. (9). 9. No cause or proceeding at anytime pending in the 
 £?oauMg. High Court of Justice, or before the Court of Appeal, shall 
 be restrained by prohibition or injunction ; but every 
 matter of equity on which an injunction against the prose- 
 cution of any such cause or proceeding might have been 
 obtained, prior to The Ontario Judicature Act, 1881, either 
 unconditionally or on any terms or conditions, may be re- 
 lied on by way of defence thereto : 
 
 stayinc Provided always, that nothing in this Act contained 
 fngs" wh'oro shall disable either of the said Courts from directing a stay 
 aT'lnf/no- of proceedings in any cause or matter pending before it, if 
 taine°d ^* ^^^*^^ think fit ; and any person, whether a party or not to 
 any such cause or matter, who would have been entitled, 
 prior to Hie Ontario Judicature Act, 1881, to apply to any 
 Court to restrain the prosecution thereof, or who may be 
 entitled to enforce, by attachment or otherwise, any judg- 
 ment, decree, rule, or order, contrary to which all or any 
 part of the proceedings in such cause or matter may have 
 been taken, shall be at liberty to apply to the said Courts 
 respectively, by motion in a summary way, for a stay of 
 proceedings in such cause or matter either generally, or so 
 far as may be necessary for the purposes of justice ; and 
 the Court shall thereupon make such order as shall be just. 
 44 V. c. 5, s. 16 (6). 
 
 Identical with Eng. J. A. 1873. s. 24 (5). 
 
 The effect of this sub-iiection is that, in ordinary cases, whatever would 
 
 formerly have been ground fur an injunction restraining an action muxt now 
 
 be raised in the action, either by way of defence, or uiK>n an application to stay 
 
 proceedings : Uarbutt v. Fawcm, 1 Ch. D. 165. 
 
 Staying An application to stay proceedings in an action must be made in the Diyi- 
 
 pruceed- sion in which the action is i)ending. No other Judge or Division has juriMlic- 
 
 ings, gen- tion to stay proceedings: </nrbiUt v. FawciM, 1 Ch. D. 155; lie Miirrintnn 
 
 «ral rule. Patent Fuel Vimipany, W. N. 1877, N. S. 20 ; Re South of France Pottery \Yi>fk» 
 
 Syndicate, 37 L. T. N. S. 2G0 ; lie Peojile's Harden Vwnpany, 1 Ch. D. 44 ; W'alher 
 
 v. banagher Distillery Vmnpany, 1 Q. B. D. 129 ; Rose v. Garden Lndi/e, etc. , Cim- 
 
 pany, 3 Q. B. D. 235 ; Wright v. RedgraKe, 11 Ch. D. 24. Two "decisions to 
 
 the oontraiy, Kingchurch v. People's Garden Company, 1 C. P. D. 45, and .V««rf- 
 
 harn v. Rivers Protection Company, 1 Ch. D. 253, are overruled. See also 
 
 Searle v. Choate, 25 Ch. D. 723. 
 
 Thus actions for claims provable (as to which see Crowle v. Russell, 4 C. P. 1). 
 186), in pending administration proceedings must be restrained by motion in 
 the actions and not in the Division in which the administration proceedings 
 are: see CMold v. Pri/ke, 4 Ex. D. 315; Powell v. Jewsbury, 9 Ch. D. 39; 
 Bailey v. Monteith, 3 C. L. T. 599. 
 
 In Wright v. Redgrave, 11 Ch. D. 24, goods had been taken under a /. /«., 
 and the trustees of a settlement claim^ them as separate estate of defendant's 
 wife. The Sheriff thereupon took out an interpleader summons in the C. P. 
 Div., upon which an order was made that, upon the trustee paying into Court 
 £115 within a limited time, the Sheriff should withdraw, but that in default 
 uf such payment he should sell, and pay the proceeds into Court, and that the 
 
k'' 
 
 8e& S3. (9). 
 
 SUying 
 
 ftrooeeu- 
 uga. 
 
 Stay, to en- 
 force a 
 coiiipro- 
 uiiBe of 
 action. 
 
 Staying 
 vexatious 
 proceed- 
 ings. 
 
 RULES OF LAW. 48 
 
 iiartie* should proceed to the trial of an iHSue as to the title to the ffoods. The 
 money wan not iMiid into Court within the time and the Sheriff atfvertised the 
 ai»A» for (talc. The wife thereuixHi cunim«nce<l an aotion in the Ch. 1). to 
 Iiftve the tniHts of the settlement carried into execution, a new trutttee 
 apiwintrtl, and in the meantime the ap|>ointment of a receiver. An injunction 
 tiii^Htrain tho Hheriff was held, on a])i)eal, to be an order inconsistent with 
 the above sub-section and was dischar^^ed. 
 
 In Ikiinnt v. WihmI, 12 Ch. D. 030, it was said that though a landing motion 
 cannot be reHtrained a person may, in a proper case, be restrained from institut- 
 ii'iir proueedingH. See als(j I'eirle Itestauranf Co. v. Lucery, 18 Ch. D. 555, 
 and^or^v. 7^rM8Ch. D. 070. 
 
 He« also lleiUfil v. Bates, 13 Ch. D. 408 ; lie Arthtic Colour Prhitiny Co., 
 14 Ch. D. ri02; Cnmle v. ItiiHsell, 4 C. P. D. 180. 
 
 Where a ))artner8hip, had by order of the (*o<irt been dissolved, the plaintiff 
 and defendants signecf an agreement of compromise ; the plaintiff subseciuently 
 rt|mdiatt'd the agreement, and projxjsed to proceed with his action, alleging 
 that hJH signature had been obtained by fraud, it was held that the Court liau 
 jurisdiction on summfms to stay further proceedings in the action witlmtit a 
 fresh action Ix-ing commenced to enforce the agreement : Kilen v. Xai.ih, 7 Ch. 
 D, 781 ; ){f Uttudet 12 Ch. D. 882. An action to enforce the agreement 
 might hv brought : llart v. Hart, 18 Ch. D. 070. See also notes to sec. .52 (12). 
 
 Actions or proceedings which are absolutely groundless are frivolous and 
 vexatious. The institution of them is an abuse of the process of the Court, 
 and they may hv stayed summarily upon motiim : Kdmunds v. Attorney-deHeral, 
 2(i W. K. .>T() ; 38 L. T. N. H. 213 ; W. N. 1878, (S4. See also Tucker v. 
 r,mnsm, 34 W. R. a55 ; 54 L. T. N. S. 128, 2ti3 ; or dismissed : Metropolitan 
 liink V. Pmlei/, 10 App. Cas. 210 ; Ker v. tyUliains, 7» L. T. Jour. 220; W. N. 
 ]S«6,7(i; Willis V. mrl Beuuchamp, 11 P. D. 59; Jilair v. Cnmler, 30 W. R. 
 M; (Irene v. Loam, 37 Ch. D. 108; Lawrance v. Lord yorreys, 39 Ch. D. 213; 
 W'armd- v. East, W. N. 1889, 8 ; e. y. actions against a public officer for an 
 act j)lainly in accordance with his duty : Castro v. Murray, L. R. 10 Ex. 213 ; 
 against a Judge for any act done in that capacity ; CMett v. Field, W. N. 
 1(177,8; Hind v. Jirett, W. N. 1883, 37; where the imint has already been 
 decided against the plaintiff in another action : Dawklns v. Saxe II eimar, etc., 
 KXB. D. 4(M); Kdmunds v. AtUmiey-deneral, supra; Mortlock v. Mortlock, 
 20 L. T. N. S. 773; where the plaintiff has no locus standi : Uobson v. hmlds, 
 L R. 8 Eq. 302 ; Vale v. Oi>pert,b Ch. D. 909 ; where the claim though stating a 
 sufficient case is shewn by admission of the nlaintiff to be without foundation : 
 Jammm v. Laing. 7 P. R.' 404. Where a rignt tt» s»ie, however slight, a]ii)earH 
 on the face of the proceedings, and is not displaced by any admissicn, the 
 plaintifT will not l)e prevented from having his action disix>8«d of in the totnOar 
 waj- : lilnxam v. Metropolitan, etc., L. R. 3 Chy. 337 ; Seaton v. Urant, L. R. 
 2 Chy. 4r)9 ; but he may be directed to facilitate an early disposition of the 
 action: Jameson v. Laing, supra. 
 
 An ar^-'on in which relief is claimed which had l)een already claimed in 
 another action will be stayed, only in so far as it claims relief included in the 
 former action : Morton v. Quick, 20 W. R. 441. 
 
 A stay was refused where an aotion had been settled by the plaintiffs' 
 solicitor, the settlement having been provisional and not adopted by the 
 plaintiff : McDonald v. Field, 12 P. R. 213. 
 
 Thert was no rule of practice at Common Law by which a plaintiff ordered Staying for 
 to pav costs in the course of an action, but not imying them, was liable to non-pay- 
 have his action stayed till they were paid : Min-ton v. Palmer, 9Q. B. D. 89 ; ™*^ °' 
 but the Court had iwwer in its inherent jurisdiction to direct a stay if that"**"' 
 appeared to be equitable. The onus of shewing the propriety of a stay was on 
 the party asking for it. In Equity the onus was on the other party, and he 
 *'u required to shew that a stay would be inequitable. The Common Law rule 
 is adopted in Ont. as the most convenient : Stewart v Sullivan, 11 P. R. 529, 
 followed in Wright v. Wright, 12 P. R. 42. See also, in addition to the cases thcr« 
 cited, Re Wickham, Marony v. Taylixr, 36 Ch. D. 272. 
 
 - K IK 
 
 \i vi 
 
 
 
44 
 
 IM. 03.(10). 
 
 THE JUDICATURE ACT. 
 
 Crotii 
 aotiouR. 
 
 Praotico. 
 
 An action may be stayod till seourity ordered to be given for damafiei hu 
 been given : RichanU v. Utrtoell, W. N., 1883, 150, 1«8. 
 
 One of two oroHs actions between the Haine imrtiex, arising nut of the nm* 
 matter may be stayed, and a conwjlidation in fact thus etfectt-d ; and where 
 such an aiiplioatiiin is made the action against the party on whom tiie burdfn 
 of pr(K)f lies ought in general to Ihj stayed, and tlie aotitm bnnight by him 
 ought tt) lie alu)we<l to proceed, the other party Iwing at liberty to raise hy 
 defence, set off or counter-claim all questions intended to bo raised by him in 
 the action which is stayed : Thommm v. KtiMeni Ity. Co. , 9 t^. B. D. 320. S* 
 further tlie notes to sec. 52 (7), and Rule 0.52. 
 
 An ajjplication to stay must in general be cm notice. " In a summary way" 
 does not mean fx parte except in cases of emergency : see /Hewitt v. liowtinij, 
 W. N. 1875, 202 ; Kevers v. Michell, W. N. 1870, 53, and notes to ». 63, 
 sub-s. 8. 
 
 Stay of 
 jiroceed- 
 ings If 
 action for 
 same cause 
 
 10. If any action is brought in the High Court for any 
 cause of action for which any suit or action haa been 
 brought and is pending between the same parties or their 
 01 t''of 'on^ representatives in any place or country out of Ontario, the 
 tario. Court or any Judge thereof may make an order to stay all 
 proceedings in the High Court until satisfactory proof is 
 oflfored to the Court or Judge, that the suit or action so 
 brought in such other place or country out of Ontario is 
 determined or discontinued. R. S. 0. 1877, c. 40, 8.98; 
 c. 50, s. 72. 
 
 No corresponding olaiise in the Eng. Act. 
 
 English The rule in England is, that where one of two actions for the same cause ii 
 
 rule. landing abroad, the Court, has jurisdiction to stay, but the party apiJying 
 
 must make out a sjKJcial case k)V relief ; whereas wliere all the actions arc in 
 England, orseinhle in the t^ueen's Courts anywhere, the concurrent proceedings 
 are ;>c/»i(e/rt(;it' vexatious : McHviiri/ v. Lewin, 21 Ch. D. 2(t2 ; 22 Ch. D. 3!*'; 
 T/ie ('hristianttbdrij, 10 P. D. 141. The Court will not consider the double liti- 
 gaticm vexatious where there are substantial reasons to induce the plaintiff to 
 sue in both countries ; as when he can get judgment in each action, but execu- 
 tion is more easily obtained in one than in the other : /'I'riiriaii tliiuiw (.'». v. 
 liockwMl, 23 Ch. D. 225 ; lli/man v. Helm, 24 Ch. D. 531 ; Direct U. S. C* 
 Co. V. Dom. Tel. Co., 8 Ont. Ai)p. 410. 
 
 Whether a Court having ample authority to decide the matter brought be- 
 fore it should await the exi>ected adjudication of another tribunal haying only 
 similar authority is merely a question for the exercise of judicial discretion: 
 PhonpluUe SeiMi/e Coiiqxini/ v. MallMon, 1 App. Cas. 780. See Jlounstuii v. .V. 
 ofSli'jo, W. N.1884, 29, reversed \x 151. 
 
 There is a discretion to stay pnweedings in the High Court for damages for 
 a collision, in respect of which pnweedingn are being taken in rem in a Vice- 
 Admiralty Court : The Peshawar, 48 L. T. N. S. 75H> ; 8 P. D. 32. 
 
 Rule i'l Under the above clause 10, proceedings were stayed in this Province, whi;B 
 
 Ontario- the matter could more ctmveniently be disposed of in the foreign Court, by 
 reason of the suit being there in a more advanced stage, and the i)artie8 being 
 personally subject to the jurisdiction of the foreign Court, and the latter 
 was the most convenient, in view of the evidence to be procured : llmeelh. 
 Jewett, 7 P. R. 09. A stay was also ordered i)ending an apimal in a foreign 
 Court, terms as to diligence in prosecuting the appeal being imposed : Jlunti*^- 
 don V. Attrill, 12 P. R. 30. 
 
RULES OF LAW. 
 
 45 
 
 Aa to staying an action in Ont. where the plaintiff's claim in being iirotiecuted 8«a U, 
 in bankruptcy proeeedings in EngUnd, see Maritime Bank v. Stewart, 13(11), (12). 
 
 P, R. 80. 
 
 11. Subject to the aforesaid provisions for giving effect ^j('J^^Q 
 to equitable rights and other matters of equity in manner iwai 
 aforesaid, and the other express provisions of this Act, the " * ™'' 
 said Courts respectively, and every Judge thereof, shall re- 
 cognize and give effect to all legal claims and demands, 
 and all estates, rights, duties, obligations, and liabilities 
 existing by the Common Law or created by any statute, in 
 the same manner as the same would have been recognized 
 and given effect to, prior to Tlie Ontario Judicature Act, 
 1881, by any of the Courts then existing and whose juris- 
 diction is now [vested inj the High Court. 44 V. c. 6, 
 8. 16 (7). 
 
 Same as Eng. J. A. 1873 h. 24 (G) except that the latter haH the words 
 "tran«ffrrwl to "instead of "vested in; and after the words "Common 
 law " has the words " or by any custom." 
 
 pro- 
 
 12. The High Court of Justice and the Court of Appeal J{g*^f J^_ 
 respectively, in the exorcise of the jurisdiction vested in ceedincsYo 
 them by this Act in every cause or matter pending before ''®''*°'**^' 
 them respectively, shall have power to grant, and shall 
 grant, either absolutely or on such reasonable terms and 
 conditions as to them shall seem just, all such remedies 
 whatsoever as any of the parties thereto may appear to be 
 eutitled to in respect of any and every legal or equitable 
 claim properly brought forward by them respectively in 
 such cause or matter; so that, as far as possible, ali j^yg"* "o" 
 matters so in controversy between the said parties respect- versy to be 
 ively may be completely and finally determined, and all mined in 
 multiplicity of legal proceedings concerning any of such ceedVng! 
 matters avoided. 44 V. c. 5, s. 16 (3). 
 
 Same as the Eng. J. A. 1873, s. 24 (7). 
 
 SirW. T. Charley, M.P., in his edition of the Judicature Act said ; " If 
 the closing words of tiiis section be verified by expt;rience, this Act will prove 
 a second Slagna Charta to the suitor." 
 
 A cause or matter is i>endin^ within the meaning of this section so long as " Pending 
 final judgment remains unsatisfied : Salt v. Coitper, IG Ch. D. 644 ; Smith v. matter." 
 <.'rmll,(i q. B. p. 75. See also Jie i'lajett, Fonlham v. Claijett, 20 Ch. D. G37, 
 where it was said that a " jiending matter " in any Court of Justice is one in 
 which some proceeding may still be taken. 
 
 The meaning of this and the preceding sub-section is, that whenever a sub- 
 ject of controversy arises in an action which can conveniently be determined 
 between the parties to the action, the Court should, if possible, determine it, so 
 ««> prevent further and needless litigation : He Tharp, 3 P. D. 81; 
 
46 THE JUDICATURE ACT. 
 
 Bea 53. McDou^all v. Hall, 13 Ont. 166. The right of the parties is limited by the 
 oitinion of the Court as to the practical convenience of trying inoongniom 
 claims in the same action. See notes to Rules 373 and 374. 
 
 Enforcing Under the last provision the Court has power to enforce a compromii* 
 
 agree- entered into pending an action and stay the action on a summary application in 
 
 inents of that action : Eden v. Xaish, 7 Ch. D. 781 ; KScully v. Lord bundnnald 
 
 m3i'n''V h« 8 Ch. J), mi; Re Oaitdet FrireJi Steamship, etc., Co., 12 Ch. D. 882; Smyth v 
 
 same Smi/the, 18 Q. B. D. 544, followed ii„ Farran v. hunter (before Ferguson, J., 25tli 
 
 action. Sept., 1888). The former Chy. prt ctice required a fresh suit to be brought Ur 
 
 siiecific ijcrfonaance of the agreemeit for compromise, unless it relate*! nierelvtn 
 
 ttie |)roseoution of the suit : I'ryiV v. dribble, L. ft. 10 Chy. 534, or unki 
 
 wliere the compromise was entered into before answer, and was set up by the 
 
 answer and sjxxjific i)erformance prayed by way of oross-relief : iimaU v. ('im 
 
 Perm. B. S., « P. R. 206. 
 
 A separate action to enforce a compromise may still be brought : Hart v, 
 Hart, 18 Ch. D. 670 ; Knmdes v. IMierts, 58 L. T. N. S. 259, and mThapsnmst 
 be bnnight where the question whether the compromise is invalid is raised: 
 Uilbert v. Kndean, !) Ch. D. 25!) ; but see Kdeti v. Naish, etc., supra. 
 
 A compromise may be enforce<l by a stay of th.* action being ordireti undn 
 sec. 52 (0). See notes to that section. 
 
 See also Ikdlei/ v. Hates, 13 Ch. D. at p. 501 ; Dmcdeswell v. Dowiksmll 
 9 Ch. D. 2i>4 ; lidker v. liluh-r, 55 L. T. N. S. 723. 
 
 Tiie Court may, nevertheless, decline to decide questions relating to contin- 
 gent interests wnich may ne\er come into i)ossession : Kevan v. CratcM. 
 6 Ch. D. 29. 
 
 Buiesof 58. The law to be administered in Ontario, as to \h 
 certam*^" matters next hereinafter mentioned, shall be as follows : 
 
 points. 
 
 See Eng. .J. A., 1873, s. 25 ; .1. A., 1875, s. 10. 
 
 The object of this section is to render uniform the niles of law adniinisteml 
 in the several Divisions t)f the Court on the ixjints as to which such rules wt■^ 
 formerly iji conflict. This liad been done to a considerable extent in Ontarifi 
 by the Administration of Justice Act, 1873, 3() Vict. c. 8 (R. S. O. c. 4'J, 98. \. 
 5, 21, 23 ; R. S. O. c. 40, ss. 86, 87 ; c. 50, ss. 131-133, etc). 
 
 The method which has been adopte<l in the present section is to deal in the 
 first eleven sub-sections witli sisHjific cases ir. which conflicting rules fonncrly 
 existed, and to provide what rule is to i)revail for the futuri^ 
 
 The first sub-section in the English Act, and one substituted for it undir 
 section 10 of the .Tud. Act 187(5, provide for the administration of the estat*-!'! 
 a deeeivsed ixTson who is insolvent, and make applical>I(> thereto the siune niln 
 as the Uansrupt Law provides for estaU's mlniinistered thereunder. "Thi- 
 British North America Act" gives exclusive jurisdiction to the iJominini 
 Parliament in matU-is of "Bankru|tcy and Insolvency " (s. 91, No. 21); I'M 
 the subject is not without legislativt? proviNion in Ontario, for by 2!) Vi(3t. c. J". 
 s. 28 (now H.. S. O. c. UO, h. 32), it wivs enacted, that "on the luhninistratimi 
 of the estat«i of any deceased jn-rson, in civse of a deficiejicy of assets, di'btsdii' 
 to the Crown, and to tlu> executor or administrator of the deceased iktsoii, anil 
 debts to others, including therein, resiH-ctively, debts by judgment, dccreoir 
 order, and other debts of record, debts by s|S'cialty, simple contriu;t debts 
 and such claims for damages ivs by statute an* |>ayable in like order of iwlmiti- 
 stration as simple contract debts, shall bt! i)aid imri /^(t.v.vi/ and witlumtanv 
 nreference or priority of debts of one rank or nature over those of luiotiier; 
 out nothing herein ccmtained Hhall nrejudice any li»'n existing during tlie lift- 
 tinie of the debtor on any of his real or jiersonal estate." 
 
 Limitat*io°n ^' ^° claim of a cestui que trust against his trustee for 
 not to any property held on an express trust, or in respect of any 
 
BULES OF JjkVr. 
 
 4T 
 
 breach of such trust, shall be held to be barred byanyJ^M- 
 Statute of Limitations. 44 Y. c. 6, s. 17 (2). apply to 
 
 Same as the English sub-section. 
 
 See Pftre v. Petre, 1 Drew, 393, and Xugent v. Nurfent, 15 L. R. Ir. 321, for 
 the diffen'jice in Equity between exiiress and implied trusts. In the case of 
 an express tniHt it has always been the doctrine of Courts of Equity that no 
 time, as between the trustee and cestui (pie trust, oi)erat*s as a bar to the equit- 
 able right of the latter ; and this sub-section is only a statutory declaration of 
 that doctrine : llarsUm v. Tenismi, 2*( Ch. D. 10!» ; see also Thompsiin v. AVw^- 
 viKiil, 2 App. Cas., 215. As to what nevertheless amounts to laches and 
 acqiiieHceiiee which will he a bar to relief, see Jh. and Lewin on Tnists 0th Ed. 
 714, and Fisher Dig. 1880, p. 2200. It is not j ecessary that the exjiress tnist 
 be evidenced by writing to 1) 
 32 C. P. 511, 521. 
 
 express 
 truBtf!. 
 
 oring thti case withwi this provision : tV«<A v. h'ranl. 
 
 R. S. O. c.lll, s. 30, is as follows :— 
 
 "30. Where any land or rent is vested in a tnistee upon any express trust, 
 therig[ht()f the (•<'.'<<«i(/M« trust, or any |)er8on claiming through him to bring 
 an action against the trustee or any i)erson claiming through iiim, to recover 
 such land or rent shall lie deemed to have first accrued, ikcoording to the mean- 
 ing oi diis Act, at nnd not before the time at which such land or rent has lM>en 
 conveyed to a purchaser for a valuable consideration, and tiien shall lie deemed 
 U> have accrued tmly as against such purchiwer, and any person claiming 
 through him." 
 
 It luvs lM'(>n said by Kay, .1., Ban tier v. /tcrriili/e, 18 Ch. D. 262, that that 
 enactment is in effect extended to |N-r8onalty by the present sub-section, which 
 isalao rei>eated in c. Ill, as sec. 30(2). 
 
 2. An estate for life without impeachment of waste shall ^^ste*'^'*' 
 not confer or be deemed to have conferred upon the tenant 
 
 for life any legal right to commit waste of the description 
 known as equitable waste, unless an intention to confer 
 such right shall expressly appear by the instrument creat- 
 ing such estate. 44 V. c. 5, s. 17 (3). 
 
 Same as Kug. J. A. 1873 s. 25 (3). 
 
 J"or the (i'fference b«'Vw«>en legal and equitable waste see the not?8 to (Inrth 
 \.V-:II<,„, 1 W. &T. Leiwl Cas., 751 (.5th Kd.); Sc„;/r,im v. h'ni,i/it, L. R. 'i 
 Chy. (128. A tenant for life without im|M'achmeiit of wiiste is not ixTmittetl to 
 msKe an excessive use of his legal jMiwer as such, by cutting down ornamental 
 treer., defacing the mansion-house, etc. 
 
 •<«■ also Setoii on Decrees (4th Ed. ) I'.tO ; and s. 21, sub-s. 3 ante and notes p. 1(5. 
 
 3. There shall not be any merger by operation of law ^leiKor. 
 only of any estate, the beneficial interest in which would 
 
 not prior to The Ontario Judicature Act, 1881, have been 
 deemed, merged or extinguished in equity. 44 V. c. 5, 
 
 8. 17 (4). 
 
 Same as Kng. J. A. 1873 s. 25 (4). 
 
 Merjrer is where a greater estate and a less coincirle uinl meet in one and tho 
 same iHi-soii in the same right without any intennediate estate ; in which ease 
 the less is iniine<liately annihilated, or "liiergetl " in the greater; as, if the fiK) 
 oiimes tn a tenant for y<'ars or lif<', the partieiilar estates are nielgiHl in tlie fee; 
 u It, in Ktniity, if tile merger which would take plme at Law would occasion 
 
4» 
 
 THE JUDICATURE ACT. 
 
 See. 63, 
 
 prejudice to a party having a previous equitable interest in tlie estate, such 
 interest is not deen»ed to \m niergefl : see Tynvhitt v. Tynohitt, 32 H. 249; 
 Finlayunn v. Miltn, 11 Gr. 218 ; Macknnim v. (irnij, 1(5 Ont. 326. By R. S. 0. 
 c. 102 ss. 8-{t, ft mortgagee niny take a release of the equity of redemption with- 
 out merging his debt as against any other mortgagee or i)er8on having a chaiw- 
 on the projwrty. The cases on the construction of this enactment « ill b 
 found in Robinson & Joseph's Digest, 2312, i;t neii. See also Ih. ^2Ai'< ■/. 
 
 Where *" an administrator, granted an underlease f(jr a tenn oi ,,| 
 
 land held by him as administrator, and shortly afterward tiie Liiikile»se« 
 assigned the land to C. for tiie residue of the tenn, it was held that there was 
 in E(juity no merger of the term : Chambers v. Kinyham, 10 Ch. D. 743; m 
 also Hyde v. Warden, 3 Ex. D. 72. 
 
 Actionsfor 4. A mortgagor entitletl for the timo being to the posses- 
 oHaud by sioii Or reccipi of the reiiis and profiis of any land as to 
 gors'*^* which no notice of his intention to take possession or to 
 enter into the receipt of xhe rents and profits thereof shall 
 have been given by the mortgagee, may sue for such 
 possession, or sue or distrain for the recovery of such rents 
 or profits, or to prevent ir recover damages in respect of 
 any trespass or other wrong relative thereto, in his own 
 name only, unless the cause of action arises upon a lease 
 or other contract made by him jointly with any other per- 
 son {a) and in that case he may sue or distrain jointly 
 with sucii other person. 44 V. c. 5, s. 17 (5). 
 
 ((I ) Up to this point this sub-section corresponds with the Eng. J. A. 1873 
 c. 25 (5) ; what follows is not in the English sub-s.-ction. 
 
 In cases under tiiis sub-section the mortgiigor may sometimes have to make 
 the mortgagee a iiarty ; l)ut "mdess there is a jtro'liability that the relief for 
 which the mortgagor sues will injuriously affect the intt-rest of the ninrt^rii^ef, 
 tlie mortgatfee ought not to i)e brought In-fore the Court t)n a mere sugt'eiitiwi 
 of a possii)ilitv that he may Ix- prejtidiced " : Faircluitijlt v. MarshnU, 4 K.\. D. 
 37 and 41». 
 
 A mortgage having tM'en assigned, the assignee served notice on tiie t<'in«itii 
 to pay him rent. A jtulgnient creditor of the mortgagor obtaineil an orderini 
 the tenants to pay. The rents due at the date of the assignment were not tlieivhy 
 assigned to the transft-ree, liut were assigned to him by the mortgaifee afttr 
 the garnishee order. It was held that under tiiis sub-section the rent* 
 attached were debts due to the mortgagor: I'ater.tnu v. O/leillii. 10 L K. 
 Ir. 304. 
 
 Assign 
 meat of 
 
 5. In case of an assignment of a debt or other chose in 
 
 dei)t8an(i actiou, {(() if the debtor, trustee, or other person liable in 
 acS.'" respect of the debt or chose in action shall have had notice 
 that such assignment is disputed by the assignor or auy 
 one claiming under him, or of any other opposing or con- 
 flicting claims to such debt or chose in action, he siiall be 
 entitled, if he think fit, to call upon the several persons 
 making claim thereto to interplead concerning the same, 
 or he may, if ho think fit, pay the same into the Higli 
 Court under and in conformity with the provisions of la« 
 for the relief of trustees. 44 V. c. 6, s. 17 (6). 
 
 (a I What follows cor 
 
 English.). A. 1873 8. 25 
 
 A debtor, against who 
 
 1 asHiffiiinent lias been j 
 
 ilispute the remainder : 
 
 An application may Im l 
 
 this stction : J(i. aiid A/i 
 
 Kciarate application undi 
 
 f.miKit lie stayed : /iaia 
 
 :i|i|>licatioii is made in th 
 
 ?!"• first part of Eng. , 
 
 I'l 11,,;. r-- a little from t 
 
 tjiuetu l)e the 'aw in thi 
 
 "Any al)S()lute assigm 
 
 purjxirting to Ix- fiy wjiy 
 
 action, i>f which express 
 
 tiistee, (ir other |H'rson fi 
 
 ':vt'orclaimsuchdel)t( 
 
 jtual in law (sul)ject t(i 
 
 T the right of the assiji 
 
 thelegal right to such del 
 
 all legal anfl other remedii 
 
 f.ir tilt same, without tlie c 
 
 etc., as alH.ve, excejit that 
 
 The fdllowiiig are dt^iHi, 
 
 The enactment do(ts not ' 
 foreanas,sigiiiii>nt<Mthi'ri 
 IMU.K., 710: Hell„'icnrk 
 17a, nor (l( PCS tins Act afT«^ 
 It subject to all ecniitics • 
 188:',n:see«.,V. />.e 11,i 
 oseof a eh,.se i„ action 
 ■>iL.T. N..S. 8, .S2(!h. D 
 
 ■■I oho(|ii,. is a mere or 
 pii'IJort t,. 1«. an absolnte 
 »cNuehaHl,eenmarl«-l 
 and the linMk heeouies the 
 
 Theas.sit;Mim.|it of nioiie 
 J«*igim.ent : /;,•/,,■ v. Ii,„n 
 
 ]^\.^.\y\\x ir,4: \v,a 
 
 Mnalaij,]],,,.,! to a tenai 
 ! f"rthP'.(.r.ler, wiisheld to) 
 •\fiee(ll,y„-|,if.l, ,],.,,j^,^j 
 
 pay himself a sum dii.. fron 
 j'Malwu lite assignment (I 
 
 'T!' '"•'''■"••"•y form with' 
 
 ULnlr,nii. li. t). (i2(i; w 
 
 In /,«■,■ V. Mil , mil, i(» r, 
 
 ";jf;tol'l"io„rnot,tlien pa 
 »'m»..,ry note for t.(H) t., 
 
 n^ the intention was to 
 |Wntlie„„te was ,!„,., an. 
 
 , "'"'I'll- P0SS,.SM.,| of .,,, 
 
 *"'''"■'"'•'■ •■l-'t ion. It was he 
 ^'ItornftlieOMVee vt J 
 
 I indorsement tl, . i r'"'' 
 
 l"''''<^-t'<.nsoastoenableli 
 J.A. 
 
RULES OF liAW. 
 
 49 
 
 (a I What follows oorresponda with the latter part of sub-seotion 6 of the S«0. SS. 
 
 English ■••A. 1873 8.25(C). 
 
 A debtor, against who) i an action htm been brought for a d«tbt of which notice 
 I aiwi((nnit'nt has been g ven, may interplead in resjject of jmrt of the debt and 
 (iispute the rt'inaiuder : Headimj v. School Board for London, l(i (^. B. D. (586. 
 An applicutiim may l)e in a {tending action or by a separate pnweeding under 
 this stction : Ih. and McKlhi-ran v. London Mttsonic, etc., 11 P. R. 181. On a 
 seiiarate applieation under this clause an lUJtifm commenced against the debtor 
 cMiiiKit 1h' Htiiycil : Hmdinij v. School Hoard (sup), otherwise if a summary 
 iipphcatioii is iiiade in the action : McKlherun v. London Masnuic (sup). 
 
 Tlif first |iiirt of Kng. J. A. 1873 s. 25 (0) makes choses in action assignable) Law in 
 
 ,(i II, iN rs a little from tln! Ontario enjKjtments on the same subjwt, which con- EnBlaiidaa 
 i.nue ti) l«' tiie 'aw in this Province. The English enactment is as follows : .." *??'i:i'" 
 
 "Any ali.iohite assignment, by writing under the hand of the assignor (not debts. 
 punxirting to Iw liy way of char.'i' only), of any debt or other legal chose m 
 action, of which express notice in writing shall have been given to the debtor, 
 tmstee, or otiier jHTson from whom the assignor would have be«?n entitled to 
 
 • rivt'orclaiiu such debt or chose in action, shall l>e, and be deemed to have been, 
 
 • jtiial in law (subject t< > all equities which would have been entitle<l to priority 
 Tthe rijs'lit of the assignee if this Act had not passed), to pass and transfer 
 
 the legal rijfht to such debt or chose in iustion from the date of such notice, and 
 all legal and otlua' remedies for tiie same, and the {xiwer to give a good discharge 
 fiir liie same, without tlm concurnince of the assignor ; provided always that if," 
 etc., as alH)V(s except that the won! " act " is used instead of the word " law." 
 
 The following are decisions under this provision : — 
 
 The enaotnii'ut does not make anything an assignment which was not thereto- 
 fore an as.si^riiiii>iit (Mtlicr at Law or in Equity : Schroeder v. The Central .'iauk. 
 24 W. K., 710 ; J{r /A(,y.v«-/rt Policy, 1 Ch. D. GU ; In re Sutton's Trusts, 12 (^h. D. 
 1*5, nor (Iocs tins Act affi^'t the rule that the iissignee of a chose in action t^vkes 
 it subject to all e(|uities : \t'cst of Knijland lianlcintj Co. v. liaichelor, W. N., 
 1882, 11 : sec H. S. O. c. 11('» s. 11 iu/rn. This rule, however, doe" iiot app'v in r 'm 
 uaseof a chose in action assignable at oonunon law. Tajlor v. lihikchick, 
 .i,iL. T. N. S. S, 32 (Jh. I), tm. 
 
 A ohe((ii(' is a mere order to pay and a rev(X)able request, and does not 
 pu'ixjrt to lie nil absolute assignment : Schrneder v. City Bank, supra. After 
 ;ichev|ii»' has liccu niarkcil g(HKl by the bank, liowever, the drawer is discharged 
 and till' liii'ik l)ec(inies the principal <lebtt)r : /hyd v. yamnith, 17 Out. 40. 
 
 The assi(;iiiii('nt of nioiK-y iutcruing due but not yet due may lie an absolute 
 awignnieiit : /trice v. /iiiiuiister, 3 (I. H. 1). .W.) ; lirilish Wnji/on Co. v. Leu, 
 Ul B. 1). U!t, IM : IIV///,v.r v. Prad/ord, 12 ^l H. 1). 511, '.W.. A letter 
 (mu a lauilinr.l to a tenant directing him to pay rent t'> another person till 
 furthev order, was ln-ld to Imi so : Knill v. I'rowse', 'SA VV. R. 1(J3. 
 
 A rieeil liy wliicli del)ts are assigned to a trustee to receive them and thereout 
 pay liinisflf a sum due from the assignor, and pay the s(ir)ilus to the assignor, 
 ;saii iihsuliitc assignment (not puriH)rting to l)e by way of charge only) : liitr- 
 "ii<"ii V. IJiill, 12 i.}. 15. I ). 347 ; .so is a mortgage of debts due by the nu)rtgag()r 
 inthe (inliiiurv form with i>roviso for re<lemj)tion and retionveyance : Tancccii. 
 ■i.hhvimi liaii /{;/., 23 (^ H. 1). '2Xt, ij» whicli .Vat. I'no-incial Bank of Knyland 
 ^. Ikrii', >\ (}, iJ, I). (\'M, was <li.sipi>n>ve<l of and not fo'lowwl. 
 
 (n Air V. Mil iiiilh, 1(1 li. H. Ir. \ti, 313, the i)avee of a jtnmiissory m.U'not 
 ni'^Mitialilc iiuii not then piwuble indorswl it as f')ilows : " I indorse the within 
 
 i iniiiussnry ii.ite for t.lM) to my sister L.," and delivered it to L. There was 
 ni cdnniihTatiiiii for tlie indorsement and delivery, but it was found as a f;ict 
 that the intention was to vest in L. the iM'uetieial interest. The payee diet! 
 
 I Hurt, till' III ite was due, and iMfpieathed to one of the makers all moneys he 
 ™iiil(i(lii. iiDssessed of, and ap|K)iiiteil the legatee exitrutor. Exi)ress notice 
 aiwritiMjf of the indorsement was given to the maker afte'- the payee's death 
 »iMU'f(irc;i,ti(iii. Itw.'isheld that as theapiH)iiitnient of ttie maker'of the note, 
 fSKiitonif the piiyee, extingnislie<l the delit prior to service of notice of the 
 'ni'r>«.|iiiiit, tiiere had been no legal transfer of the debt to L. within this 
 
 hob-s--' • ■ ■ ■ ■ • ^ 
 
 Jswtioii M) lis to enable her to bring an action thereon. 
 J. A. 
 
 4 
 
60 
 
 THE JUDICATURE ACT. 
 
 Sec 03. Where the Htatement of claim alleged that the plaintiff sued as assignee by 
 
 deed of a debt diu- from tiie defendant to the assignor on a building contract, 
 and the defciKlant pleaded liy way of set-off and coiniter-claim that he wan 
 entitled to duniages for breaches of contract by the assignor to conii)lete and 
 deliver the biiildnigs at the s|)iyified time, wiierehy the defendant lost the use 
 of them, it was held, on dennnrer, that the defendant was not entitled to 
 recover any damages against the plaintiff; but was entitled, by way of setoff 
 or deduction from the j)laintiff"s clai?n, to the damages which he had sustainwl 
 bv tlie non performance of the contract by the assignor: ViiKitu v. Kilihiii,i 
 llx. 1). 127. 
 
 A banking company, iiaving received notice in writing of conflicting claims 
 to moneys jUiiced witli tlien^ on de|>osit, jiaid such moneys into Court (iiidcr 
 tiie Trustee Relief Acts after first deducting therefrom their costs of payniem 
 in. I'lsni |M'tition l>y one of the claimants for payment out, it was liild timt 
 tlie proviso in this snb-seetion applied only to debts of whieii there had littii 
 an absolute assignment in writing, and that the banking company, not Iwing 
 trustees witiiin tiie 'IVustee Relief Acts, were not entitled to i)ay the (lc|K)«it 
 moneys into Court tiiereuiuh'r ; but it was also hehl that the iH'titioncr imwt 
 l)e taken to have sulniiitted to the jurisdiction under the Trustee Relief Act* 
 l)y |H-titioniiig tile Court; and that the bank was entitled to taxed costnof 
 paying in the money, and of the |H>titio)i : /// /c Sitdiiii'x Tiits(s, 12 Ch. J). 175; 
 see ]n ir J/tti/inc/.-'ti J'n/iii/, 1 Cli. 1). (ill. 
 
 See also rx /Hirt'- I'litli'i/, !l Ch. I). ;^<»7 ; ('iri'iiinii/ v. .itkiiiKnit, W. X. IHSl. 
 47; Siiii/liuyll v. Snittrr, 4!» L. .1. t^ B. 35(>, and a discussioi, in 7X L T. 
 .Tour. 43!t. 
 Ijaw in On- The Ontario Law continues toln- regulateil by Tin 
 
 0.122 
 
 Iiiferpro- 
 tatioii of 
 tlu) word 
 "assignee 
 
 Meixiantile Anteiuinient 
 tariu under .\ct (R. JS. (). c. 122, .<s. (J to 12,) which provides as foHows : 
 
 "0. In the six next succeeding sections of this Act, 
 
 "' Assignee ' sliall include any jierson now Iwung or hen-after iH'ciiiiiiiii.' 
 entitled by any first or sui)se(pient assignment, or any derivative or otiier titli-, 
 Ui a chose in action, and possessing at tlie time of iv;iion brouglit the iMiu'fiml 
 interest therein, ami the rigiit to receive and to give a.i effectual (liseli!ir|,'cf(ir 
 ihe inonevs, or the cliarge, lien, incumbrance, or other obligation tiicrciiv 
 -ecuivd. ■ /.'. X (K 1H77, e. llfi, s. (i. 
 
 The assignee must take the beneficial interest. He cannot sue in his owi 
 name wiiere the a'<signment lias been miule only to enal)le him to liriiiKaii 
 action : \\'<"il v. Mr.\//,ii,i; 1 Out. App. 'S.U. In' Wmt/ v. lliKjIirx, 8 Out. ISf*. 
 it was held tliat where an asHignmelit wasal)solute in fonii, though tlii'as.<i(ni(ir 
 inteiidtHl to retain a Is'iieticial interest, an iuttion upon it must )m' I )rouglit in 
 tlie name of tiie assignee. 
 
 <'lioso in 
 action 
 iiiii(l(! as- 
 signable. 
 
 own name. 
 
 "7. Kvery debt and chose in action arising out of c(mtract shall 1h' ii-ssipi- 
 at lie at law I )y any form of writing, but siilijeiit to such conditions or ivstric- 
 tions with res|)ect to the right (pf transfer as are (•ontained in the iiri(final 
 contract ; and the assignee thereof siiall ('() sue thereon in his own name in such 
 AsHvgnt^o to action, and for sucli relief as tiie original holder or assign.irof sueli cliix* in 
 Biuiiiiliis nL'tion would Ik- entitle<l to sue for in any Court of I^aw in tliis I'rnviiicf. 
 /.'. S. <t. 1«77, c. IKi, s. 7. 
 
 Tlie im|s'rati\e construction is ap]iarently to be given to the word "siiali. 
 in the case of assignments witliin the o|i«-ration of tiie Act: see l)iiii:vm\. 
 ih-iihiim, 41 I'. C. t^. IJ. ;'»;«, und W'unl v. IIikjIks, « Out. l;W. 
 
 Debts payable at a future time may b*' assigned: llrirc v. RditHkln. 
 'A ti>. H. 1). 5(>i>, and other ciwtes siipni. 
 
 "8. Any proiM-rt';, real or isTsonal, may 1h» conveye<l or assi>nie<l hv i 
 IS'ison to nimseir jointly witli anotlier is-rson by the like means by wliicli i! 
 might be conveyed i,. ssigned by .liiii to anotlier person, and may in lilf 
 manner 1h' conveyed or ass;gne<l liy a husband t<i \un wife, and by a wifi- 1' 
 lier husband alone or jointly with anotli' r person. li. \ O. 1.S77, c. 'X>, », 1": 
 4!t V. c. 1% s. (i. 
 
 y«) Imi). Act, 22 23 V. c. liT,, m, 21. 
 
 ABsifjn- 
 ment of 
 properly 
 to self .ue) 
 otiiers. 
 
 "ft. (1) The bon( 
 or to any [lerson nai 
 if payalile to any |i 
 .iiieli |M'rsoii) lie tran 
 
 "(2) Any sucli tr 
 in the holder tliereol 
 name. B. \ O. 187 
 
 '; K). Subject to tl 
 action or suit wliere 
 may claitn as assigi 
 lirit'fly the various ai- 
 vested in liiiii ; liut i 
 jietion sliali be as if t 
 or first a isignor. H. 
 
 "11. In case of jvn 
 contPiict, and not assi 
 defence, or set-off, in 
 .It tiie tiiiKMif, (ir iM'fi 
 wMi^'lit to lie made lii 
 defence would lie effe 
 such (lefeiiee or Net-( 
 of sncli debt or chose 
 
 See T/ir /•!.iy/iiiili/i' /, 
 
 "12. In case of ji,, 
 given to tlie debtor or 
 outofr.,nti-act, the as 
 ('laiiiis. ijefeiices, or ec 
 ft.<sigiioi. J!. S. o. 187 
 
 "13. Tlie next pr ci 
 toi.|i|.ly to bills of ext 
 
 6. Stipulation 
 nljieh would not 
 tare Act, 188 J, h 
 of the essence of 
 receive in all Coi 
 tliey would, prior 
 in Kquity. 44 "V 
 
 Same ji.s ICng. ,|. ^\_ 
 
 This subsection (kw 
 came into u|H.ration : 
 
 Time is not the essei 
 'tijmlation : ()„h/,;i v 
 IWlvr V. n„n,/,/, 1(1 j 
 IlK'stipiiIatio,, cannot 
 "'the contract, unh'Hh^ 
 tllf mitice to lie relieve™ 
 
 As to the ecpiitdble e, 
 fi'rther Tillnj V. Th„mu 
 
 As to the rule at Coil 
 «;«tract obcaine.! by a 
 
RULES OF LAW. 
 
 61 
 
 "it. (1) The IxmdH cir delwntureH of C(>r|virati(ms marie payable to Ix-arer, 
 nr t«) any i^tsoii luinied therein or In-arer, may he trimsferrecl by delivery, and 
 if payahlc to any |>erHon or order HJiall (after genera! indorHatioii thereof by 
 siicli iHTson) l)e tranaftjrable by delivery from the time (if sueh inc'orsation. 
 
 "(2) Any such transfer whall veHt the i>r(»|i«'rty of Hiich VMinds or dehentiireH 
 in tlie iioldcr tliereof to enable him to maintain un avtion tiiereon in lli^t own 
 nam.'. Ji. S. I). 1877, c IIC., h. H. 
 
 "10. Snlijeut to the provisions of Tlif JiitHriitinr Ai;l, the plaintiff in any 
 (iction iir suit where the aHsiKniiiient in ri'(|uired by this Act to 1m^ in writing 
 may claim as assignee of tlie oriirinal party or first assignor, s«>tting forth 
 lirit'fly tlic various assignments under which tlie said eliose in action hasTieconie 
 vestell in liiiii ; l>ut in all other resi>ects the pleadings and proceedinj^s in sucli 
 lU'tinii sliall Im- as if the action wa- instituted in the name of the original party 
 (ir first a.isigiiur. It. >'. '>. 1S77, e. 11(», s. '.t. 
 
 "11. In case of any assignment of a debt or ehose in action arising out of 
 (■()iitr:u?t, and not assignable by delivery, such transfer sliall Im- subj»'ct to any 
 (IffcuL'c, or set-off, ill resjH'ct of the whole or any part of such claim as existed 
 at the time of, or iM'fore notice of the assignment to the delitor or other jx-rson 
 .iiiii^'lit tdlic made liable, in the same manner and to the same extent as such 
 (li'ftiii'c Wduld be effectual, in case there liad In-eii no assignment thereof; and 
 siicli (Icfciice or set-off shall apply as iM'tween the del)tor and any assignee 
 of such <lel)t or chose in action. Jt. >'. (K 1S77, c. 11(>, s. 10. 
 
 Set' Tlif Kxi-hanije Bank v. Stinsioi, 32 C. P. 158. 
 
 "12. In case of any assignment in writing as aforesaid and notice thereof 
 jfiveii to tlie delitor or other pei-son lialile in res|i«'ct of a chose in action, arising 
 (lilt iif r. iiitract, the assignee sliall have, hold and enjoy the same, free fnmi any 
 claini.-. defences, or ecpiities which might arise after such notice as against his 
 (ws-igiK.i. Jt. S. O. 1H77, c. IK), s. 11. 
 
 "1,^. The next pr ceding seven sections of this Act shall not Im- construed 
 tiiii|i|ily to Mils of exchange or promissory not«'». R. >'. O. 1877, c. 111!, s. 12. 
 
 BBC. 03. 
 
 Hunds of 
 corpora- 
 
 tiOUH. 
 
 PloadingB 
 and pro- 
 cuedings. 
 
 Oriaiiinl 
 riKlit of set- 
 off and do- 
 feiicp 0011- 
 tiniied. 
 
 .XHP'.^nee 
 eiil'tled 
 tre"! from 
 contra 
 claiiuR to 
 ariso after 
 notice for 
 t)io porsonn 
 liable. 
 
 Recs. (1-12 
 not to ap- 
 ply ti) liills 
 and notes. 
 
 6. Stipulations in contracts, as to time or otherwise, stipuia- 
 nliieh would not before the passing of The Ontario J udica- the in^smco 
 tnre Act, 188 J, liave been deemed to be or to have become irac°". 
 of the essence of such contracts in a Court of Equity, shall 
 receive in all Courts the same construction and effect as 
 they would, prior to the passing of said Act, have received 
 in Equity. 44 V. c. 5, s. 17 (7). 
 
 Same as Kng. .1. A. 1873, h. 25 (7). 
 
 Tlii.s subsection has no application in an action commenced before the Act 
 ojMiif into (i|(eration : .VnWc v. tOI irnnlfs, t} C\i. I). 378. 
 
 Time is not the essence of a contract in Ktpiity except in cases of express 
 >ti|mlrttiiiii : Oiihlni v. /'Hi; .34 L. .1. Chy. (i2(>, ur by nece.ssary implication : 
 lydvry. ThynM, 1(1 Heav. 5!); see also I'alrirl. v. ^lilin;; 2 ('. I". I). 342. 
 riu' Btipiijation cannot be made by giving a notice, where not originally [lart 
 "f theiMintract, unless theif has been such delay aw to entitle th" party giving 
 the iidticjc to 1h! relieved from his contract : (ii-iru v. Seviu, 13 t'li. D. i')81l. .See 
 fninfMil V. (.iiii/d, !( t)nt. A|ip. 218. 
 
 .\s to the wpiitable constriK^tion of stipulations in contnvcts aH to time, see 
 further Tillrif v. Tlminus, L. K. 3 Chy. til. 
 
 As to the rule at Coninion Law and in Kipiity reganling the r»'scission of a 
 wiiitraet ohcained by a material false represeiitaticm, see /{etigravf v. Uinil, 20 
 Ch. I), 1 ; l>erk V. berry, 87 L. T. .Tour. 184. 
 
'}!r- rm 
 
 52 
 
 THE JUDICATURE ACT. 
 
 Seaos. 
 
 Satiafac- 
 tion of ob' 
 liRatioiiH 
 by i>erfor- 
 iiiHiice lu 
 part. 
 
 i 
 
 Injunc- 
 tions and 
 receivers. 
 
 7. Part performance of an obligation, either before or 
 after a breach thereof, when expressly accepted by the 
 creditor in satisfaction, or rendered in pursuance of an 
 agreement for that puri ose, though without any new con- 
 sideration, shall be held to extinguish the obligation. 48 V. 
 c. 18, s. 6. 
 
 This clause changes the hvw as settled by the decision of the House of Lords 
 in Foakm v. Hecr, K Apu. Ciis. (>05. Since the old case of Ciimher v. IIVmc, 1 
 Str. 42«>, it ha<l Ix'en field that a debtor beinjf under a legal obligation to 
 pay the whole of his creditor's demand, an agn'enient uixin payment of part to 
 discharge the whole was nudum jmctiini, unless there was some new considera- 
 tion. Many sub8e(|uent cases exenii)lified circumstances under which Ciimlitr 
 V. l('((Hc might \w distinguished, such as where some dispute existed as to the 
 exact amount due, or the money was to be paid in lulvance, or there was the 
 acceptance of some ne«' consideration however slight, or a negotiable instrmnent 
 was given for the smaller sum: 1 Smith L. (J. !lth Ed. Jiiik/er v. Jiiidijes, 
 37 <'h. 1). 4()(). In FiHikrH v. Iker, the House of Ix)nls was asked to ovcmile 
 ('umlii'i- V. Wane, lint held that legislation was requisite for that pur|H)se, the 
 dt)ctrine of that case having l)een i)art of the law of England for 280 years. 
 
 In ltd!/ V. Mcl.iuf, '22 <.^. V>. 1). (»]((, the plaintiiTs miule a claim for damages for 
 breivch of ccmtraot, the defendant sent a ehe(|ue for a less sum, saying that It 
 was in full of all deniaiKls ; plaintiiTs kept the checjue stating that they did su 
 on !U!count, and brouglit an action for tlie balance of the claim. It Wiis held 
 that keeping tlie (;lie<|ue was not as a matter of law conclusive that there was 
 an afxjoixl and satisfaction, and that it was a question of fact on what teniis 
 the checpie wis kept. 
 
 This clause was ap|ilied in lUink a/ ('uminrrre v. Jcnkinn, 10 Ont. 21.5, where 
 it was lield tliat an agreement of com|Kisition liy which n(ttes for 4(ic;. on the 
 dollar were to Ix- given was irrevocabh-, when entered into by a creditoi-, though 
 other creditors had not given their assent. 
 
 8. A mandamus or an injunction may be granted or a 
 receiver appointed by an interlocutory order of the Court, 
 in all cases in which it shall appear to the Court to be just 
 or convenient that such order should be .ni.de; and any 
 such order may bo made either unconditionally, or ujion 
 such terms ami conditions as the Court shall think just; 
 and if an injunction is asked, cither before, or at, or after 
 the hearing of any cause or matter, to prevent any threat- 
 ened or apprehended waste or trespass, such injunction 
 may be granted, if the Court shall think fit, whether the 
 person against wliom such injunction is sought is or is not 
 in possession under any claim of title or otherwise, or (if 
 out of possession) does or does not claim a right to do the 
 act sought to be restrained under any colour of title ; and 
 whether the estates claimed by both or by either of the 
 parties arc legal or equitable. 44 V. c. 6, s. 17 (8). 
 
 Idintical witli the English .1. A. 1S7.S, s. 2.5 (8). 
 
 Where an injunctii)n or receiver is a substantial object of the action, the writ 
 should Ix' indorswl with a claim for that relief: ('nllinuriii' v. I'lilhiiiinii; 1 Ch. 
 1). ()(»0, but may bt> had thv>ugh not so claimed : .V(///<»/( v. (J(/ver, ^\'. N. 
 1S77, 20G. 
 
 An "interlocut 
 and final judgmer 
 after final judgme 
 l(i Ch. D. rA4, Mu 
 an injimction was 
 of in the action, ii 
 
 As to tile pnvcti' 
 
 Mandamus. -Ti 
 
 ISHl, related to wi 
 and (2) a writ whic 
 
 The prerogative 
 
 writs wliich the si 
 
 Charta hv which 
 
 hut issued at the c 
 
 delegate!) to tile or 
 
 i)f the f'nnvii was 
 
 Si)vereign is siii)p 
 
 4. M(Ki.. •{-!(» ; Hiy. V 
 
 it is still in Knglai 
 
 sidered one of the f 
 
 the(^. R I).: <//«, 
 
 tiiin which the Cou: 
 
 see /til/. V. H'ii/dti, : 
 
 other eff(K!tual rem 
 
 lltir/(,ir, *» L. .1. (}. 
 
 In Ont. the Court 
 all the Divisions of 
 Ciilirts formerly exi: 
 Itdilir.iii mill ( 'limit 
 'f Kdiiiiiti. II Xaiia, 
 (! Ch. D. 731. 
 
 Of the writs of n 
 particular statutes, 1 
 authiirized under th 
 C, .S. r. C, c-. 23, s. 
 writ liy the above se 
 
 Rnhm2'\n isfol 
 The plaintitf in a 
 ejectment niav iiidoi 
 |iliintiff intends to e 
 111 the :«tateinfnt of 
 l)e enforced in such a< 
 
 tnfiilfilanvdutvin t 
 K.S. ().. i877, e. 52, 
 
 The decisions uruh 
 
 seeiidtes to Rnh' \\\ 
 
 editiini of the C. L. 
 
 lp.is,-iii)lv by reason of 
 
 «rit, (though a distill 
 
 t.;'2s. 10, where the 
 
 that the inteiuiim of 
 
 WDiieof the writ whi( 
 
 This enactment got 
 
 and enacts that a nii 
 
 the Court in all jases 
 
 venient that such ord 
 
 Theobj^.t of this, 
 
 the Court in grant 
 
 '"itained on interlocut 
 
RULES OF LAW. 
 
 68 
 
 An " intprli)cntory order" means not merely an order made Wtween writ Sea 08, (B). 
 and final ju(l)n"ent, l)ut an order other than hnal judgment whether before or 
 aftiT final jiidgmunt : Smith v. Cuwell, (! t^. B. D. 75. See aXm Salt v. t'oo/x-r, 
 It) Cli. I)- '^1 '"»'' •■•.'/'"'"' V. MchtnceU, 14 L. R. Ir. 445, wherts after a verdict 
 an injnnotiiin was granted against a oontinuanoe of the trespasseH complained 
 of in tlu' action, no injunction having l)een granted at the trial. 
 
 Ah to tilt" |)riU3tice on such application see notes to Rule 1134. 
 
 Mandamus. —The jurisdiction as to mandamus In^fore the Ont. Jud. Act, Manda- 
 18,sl, related to writs of two kinds, (1) the old prerogative writ of mandamus nius. 
 and (2) a writ which was grantable under various statutory provisions. 
 
 The |irtro(?ative writ was one which did not issue as of strict right like the Proroija- 
 writs which tlie subject had the right to call for under the clause of Magna '"" *''"• 
 Ciiarta i)V wliich the Crown is l)ound not to refuse or delay justice or right, 
 lint issued at the discretion of the Crown, and the jKiwer to issue it was not 
 (Icli'gated to the ordinary Judges between party and party, but the discretion 
 of the Crown was exercised through that one of the Courts in which the 
 Si)Vfri%'n is supposed to l>e jHTSonally present: see 3 Bl. Com. 110,132; 
 I .M(k1. 'AW; Hi':i- V. Ciiwlf, Burr. 855; Tapiiing 4; Shortt 2211. For this reason 
 it is still in Knifland only granted on application to the t^. B. D. Iteiii)^ con- 
 sidered one of the flowers of the old Court of (Queen's Bench, now belonging to 
 thi't^ B. I).: '•I'.i.sii/i V. 11,'stim L«i-at llntrd, 12 Ch. D. 115-11(!. The discre- 
 tion which the Court iM)SHessed was not an arbitrary but a judicial discretion : 
 see Iti'ii. V. \yi<inn, 1 App, Cas. (>22 ; but was only exercised where there was no 
 (itiier •■ff(H!tual remeily : Itrr. v. ('uivcrxit!/ af ('amlinilije, \ W. Bl. 552; Ite 
 li„flnii\ -M) I.. .1. (l B". 271 ; tin v. Ilalh, 3 A. & K. 4!»7. 
 
 In Ont. the Court of O. B. hiMl no sjn'cial jurisdiction in the nuitter ; and 
 all the Divisions df the High Court have the same jurisdiction that any of tlie 
 Courts formerly existing had : see sec. 2(> of the Act, He Strut ford i(' /lunni 
 Hiiilir,!// mill C'liintji I'/ J'frth, 38 IT. C. C^. B. 15<i, /«'/• Moss, J. A., and liimrd 
 ,f Kiliiiiiii' II, Xapanee, v. Xapunee, 2!) (»r. 395; Jte /'arix Skutituj liink Co., 
 (iCh. 1). 731. 
 
 Of the writs of niandanms of the second kind there are examples under Other 
 iwrticular statutes, but of special ini|>ortance, are two, viz. : (1) the niandannis writs of 
 authorizeil ;iiider the Imp. Act, 17 & 18 Vict. c. 125, s. «!>, adopte<I here us ">«"da- 
 C. S. I'. ('., e. 23, s. 1, now emlKKlied in /iii'f 1112, ajid (2) the e.xtension of that '""*' 
 writ liy the above sec. .'>3 (8) of the .hid. Act. 
 
 Riili 1112 is -IS follows : 
 
 Tile ])laintitf in any action in the Hi}?h Court of .lustice except replevin or Unrlor 
 ejectment may indorse upon the writ and (miov to Ik- served a notice that the Uule, 112. 
 [ilaintitf intends to claim a niaiidamus ; and the plaintiff may thertai|>oii claim 
 ni the :<tatement of claim, either together with any other deiiruid which may 
 lie enforce<l ill such iu;tioii or separately, a inandainus commanding the d»'feiidant 
 til fulfil any duty in the fulfillment of which the plaintiff i^ (MT-sonally interested. 
 K. S. <).. iS77, c. .52, s. 4. 
 
 The decisions under the Act from which this Rule was taken (as to which 
 sec n<ites to K>tlt' 1112 ;;iid the elaborate notes of Chief .Justice Harrison in his 
 edition of the C. L. P. Act, pji. 4(i2 if .ii-i/.) somewhat limited its application, 
 liiwibly by reason of some confusion of the new writ vith the old prerogative 
 writ, (though a distinction lietweeii them is made in the Act : see R. H. t ). 1877 
 I'. .">2 s. 10, where the right to issue the old writ is jtreserved) and it would seem 
 that the intention of the above sec. .'")3 (8) of the .Jud. Act was to enlarge the 
 »ci)|)e of the writ which was obtainable in an action. 
 
 This enactment goes further than the previous statutes and than RiiU 1112, I'lider th* 
 and enacts that a mandamus may Iw granted "by an interlocutory order of Jud. Act. 
 the Court in all -jases in which it shall appear to the Court to lie just or con- 
 venient that such order should be made. 
 
 The (ilijet^t()f this clause was probably two-fold (1) to enlarge the discretion 
 (if the Court in granting writs of mandamus, and (2) to enabh- the writ to be 
 olitaine;! on interlocutory application, and not mei-ely as juirt of tlie judgment 
 
54 
 
 THE JUDICATURE ACT. 
 
 
 Sec. 03,(£).iii an ivotioii. TIm< latter uuvttiT (loHHibly did not ri'(|uir« letfislation in thi« 
 Pniviiicf, iiH tilt' Act a") Vict. o. 14 s. 1 (now Rule 1124) eiiahled iwrticx to ob. 
 ttiiii a uiundaimiH on inotioii in ChanilturH. 
 
 The Hiandaniiis referred to in this section is not tiie old prerogative writ, 
 "but only a mandamus which may l>e L^ranted to direct the itert'onimiicc nf 
 some lict, Of something to Im done, whicTi in the i-esult of an action wliereaii 
 action will lie," jier Brett, L..I. in (•'li'-i.tuji v. IliMmi, rd:, 12 Ch. 1). 122. 
 
 Although the Court or a.ludge has |M)Wer to grant a mandamus on an iiiterln- 
 eutory a]>|>lication, it will not Iki done unless the plaintiff clearly shows that 
 he will suffer some injury by waiting for the result of the action : /ii iv I'urix 
 Shitiinj Rill/: <'(,.,{; VU.'D.'TM; W iiIiu'k Mhnii ('.>. y. Shrffh'/d iiiiil Miilloml 
 Jbiiliodi/'n Cii's Ciimmitlee, 37 L. T. \. S. 131. 
 
 DocisioiiH The ]H'n)gatiye writ of mandamus is not interfen<d with by any eniuitniwit. 
 as to tlio It is iireserv*-*! for the extraordinary cases where without it a party would W 
 preroHa- left without effectual remedy. .See cases miiiia and liimli y. limnni, I H. it 
 tive writ. ('. .iyKI ; 7'y(. of Mniiltnii ami liidillnwiid, 12()nt. App. 5(W; Itr Afimiii- 1/ .1/'// r',., U 
 Ont. 444; 13 Ont. App. 440; /<c,/. v. Luiahniinii' R;/., 22 t^. B. I). 403. 
 
 It is not the appropriate remedy for the enforcement of rights arising out nf 
 contract : id' Luiiilnii II. (iml Ii. Id/, mn/ Tp. H'aii'inin.s/i, 3(5 U. C. (/, H. !I3; 
 He lliiiiii'tnii ,111,1 X. \V. Itij. ,1,1,1 ilii/tnit, 3!t U. (;. (.1. B. !»3. If a iiiaii(laiiiii« 
 be graiktable in .such a case it is the mandamus which may Im duinted in uii 
 action under Rule 1112, or the alHive sec. 53 (X). 
 
 Formerly the existence of another reminly in Equity was not sutficiHit 
 reason for refusing the writ, the Court dealing with the matter In-ing u Coim 
 of Law only considered whether there was another K|)etjific remedy at liaw: 
 see /{. y. Sli'ifml, 3 T. H. VM2: /^• Hiimilli^ii iiiiil A'. If. Ri/. v. Hallu'ii, 3!l U.C. 
 t^. B. !t3. 'i'lie (juestion was much discussed in the Court of ApiM'al in II' 
 SI i;if/,„;l ,1,1,1 lliinin A'//. ('•>. itiul l>,-iih, 3« U. C. (l B.,112, whether after the 
 .Admin, of Justice Act lS73(which made all tlu! Courts auxiliary to one anothcn 
 a party who disclosed a case entitling him to relief in K((uity should sucewl, 
 though he IumI chosen to procewl in one of the Courts of Law i)y way of motion 
 for a nianrlanuLs. The Court was divided, and therefore this yiew did not 
 prevail. 
 
 Sinc;e the Ont. Jud. Act, by which there is but one CViurt administering biith 
 Law and Ecpiity, the existence of any other rein((dy, legal or e(|uitable, which 
 the Court can apply will probably be sufficient reason for not interfering by 
 way of the prerogative writ of mandanuis. 
 
 A iH'tition of right has been considered to be other appropriate remwiv; 
 Rf'j. V. ('iiinmi.t.ii,in,Ts ,i/ liiltniil Ri'irnii,; 32 VV. R. .543. 
 
 Where a peivmptory mandamus is granted the decision is subject to reviev. : 
 III':/. V. i'iiunliwirdi'iis ,,/ All .S'ln'/z/.v, 1 App. ('as. fill : /'('.'/. y. liitiiiji't, \> 
 (j. B. 1). 34!), 3(iO. A numdannis will not Vn' granted against a iiul)liv Ixniy 
 when the iierformance of the fluty sought to be enforced is impossii)le by rea.-i'n 
 of want of funds : Hi- BrUtnl and Sumer.-ii't l{i/.,'S(l. B. 1>. 10. .See Alli/.-ii'i:. 
 V. hufkin;!, 2<) Ch. D. rm. 
 
 As to the practice on motions for mandamus, see notes to Rulfn 1124 aiil 
 1134. 
 
 When a mandamus is granted, as to the ret\irn thereto, and privotice thenMi). 
 .see Htiks 1120-1123 and notes. 
 
 Motions under this section in an action are niiule in Court, but in thewvc' 
 a mandamus provision is made for a sumnuvry aiti/iication in Chanilvrs: 
 He li,;,.,kti,'ld, etc., 12 P. K. 48;-,, and Ridi'n 11171 1124 and IIIM. 
 
 Injunctions — S,-i,}ie „f the .Ii7— The 
 convenient " and wlietlier they have 
 lieen considerably discussed. 
 
 Scope of -^^ injunction may be gnvntt-d where the Court thinks that it is juHt »iii 
 
 enactment convenient: Tiu'rlei/'.^ < 'utile Fmid Ccin/iinii/ y. Miis.sum, (i(!h. I). W2 ; llinr>" 
 
 as to in- v. lienules, VV. N. 187«, 11 ; S,i.,'l,i/ \. EiiMerliriuik, 3C. I'. 1). 'XAW ; lie fiiiiiliri"^ 
 
 junctions. Minimj ('„., 2H W. It. SSI, mv,\ the words of the section rather enlurj,-*- th»» 
 
 Practice. 
 
 Injunc- 
 tions. 
 
 an'ng of the wor.is "just ami 
 I'ularged till- |M>wer.s of the Court, ha- 
 
 (liminiiih tlie an:: of tl 
 V. llV//(W//is43L.T. N, 
 iej(«l rt'ftsipiis or prinei) 
 ent : llrililnir v. It,;l,l,ii 
 il„d-in V. li,ill.H, 13 C 
 ilr/iiinitii'ii II f Siiulliiiii 
 the least alter the prim 
 ,-ejii.WVh. \). 2iW, am 
 iifiw wliere iH'fore tlu 
 fitlicrat linw or in K(ii 
 W. K. 4!H» ; 4« L. T. N. 
 '-'. II'. II >i. 24 Ch. I). 1. 
 
 In Liiiiiliiii <(• Itliiekire 
 the t'liiiirfred powers as 
 Court to restrain a [m'I-s 
 Clauses Act, thougli tin 
 II third party without 
 gnmnd that its process 
 
 Theiv is no right to rt 
 nulwisting judgment or 
 .\Vw^'« V. .\'eii'/iiii, 5.5 I 
 |)erty by a married woin 
 .\'iif. I'rne. Huuk v. Thm 
 
 \o Court will issue an 
 is al'owed to go on, no 
 Lmiilim II ji. I'd, v, </. .\'. 
 
 In Street v. ('iiiiiii Bun 
 n-ittrainiiiL' the use of tl 
 Wng held that defendaii 
 line of inconvenience, wh 
 mistakes hail (Kicurred ai 
 by defendants. 
 
 But the Court has jurii 
 nght, and the only limit 
 wnvenieiit to make the i 
 To use the wonls of J, 
 [yrii] at p. 148: "Of 
 that the Court is to gri 
 ommiient. It means tl 
 H'tioii of rights, or for 
 ThenioMu.iit it is found 
 jiuffer H«'rious injury and 
 him, the ( 'ourt ought to 
 
 The granting of an inji 
 act dciMiident on the di 
 the Court will con:dder ii 
 »ill imKluce injury to tin 
 ;laniag..s, and whether th 
 '»■ obtained once fo; all 
 
 •Vitothe termof impri 
 "f the Court: .see A' Ihii 
 
 The right to an injum 
 "liHtlier the person sough 
 IjissesNioii whether he waf 
 Ivi'rr on Injuncticms 28» 
 ■..f); Siini.sfui-d X. l/„rl.st„ 
 \nmvv d,.alt with this 
 '•t'O. 12, s. 27; K. .S. < 
 tion to stay wast(. in a pr 
 •;ion chums by an lulven 
 •w IB) w to the same effect 
 
RULES OF LAW. 
 
 55 
 
 (liminicli tin- am: of th»i ('oiirt 'n n'H|K'ct of injunction ! per Fry, .1., in Thomas (lea 83, (8). 
 V. Williiim s 43 L. T. N. S. <>4 ; 4!» L. .1. Cliy. (M)5. But it in witii rcffttrcl to nettlwl 
 \Mt»\ nwoiis or prin(!i|)l»'s tiiiit tin* (\nirt will (hoidc wliivt in just and conveni- 
 ent • Ikililnirv. linhh.w, » Ch. I). 8!»; Shdwy. K. ,>f Jn:sn/, 4 V. P. 1). 359; 
 iliid-iii V. Itidh, 13 Cli. 1). 324; FMr/,n- v. llni/rrK, 27 W. R. (»7 ; AxliUt y. 
 {':,fltimitiiiii i>/ Siiulhamfitnn, 1(» Cli. 1). 143 ; and thin Hub-wetion (Uh'h not in 
 the l(*st alter the |irinci|)leH u|Min which the Court xhould net : hay v. Jimwii- 
 i-iifij, 10 Ch. 1). 2!M, iin<l <1<k'h not eni|K)Wer the Court to griint an injunction in 
 iiciiw' wlien' In-for*' the Act the juvrty applyintf would Imve hiul no remedy 
 citliiT at Law or in Kiiuity : .V. /.(nnlnn /^/. f'n. v. (t'mit. .\'i.rllifni Hji. ('<>. 31 
 W K. m : 48 L. T. N. S.' (595 ; 52 L. J. ^^ JJ. 380 ; W. N. 18H3, 'Xi ; lUmnei- \ . 
 U. ir. H;i. 24 Ch. I). 1. See ako ltM,i.H,m v. I'ivkerin-j, 1(» Ch. 1). (MM). 
 
 Ill Liiiiil'iii ,{• llliickii'f/l Hi/. Cn. V. <'riiKs, 55 L. J. Chy. 313, it was held that 
 thf I'lilarK'i'd powers as to injunctions i»iven by this s<H)tion did not enable the 
 Cdurt ti) restrain a [H-rson from proceeding for coni|M'nsation un<ler the Lands 
 ClaiiKf.-i .'\(^t, though the claim Ih! futile or vexatious and made in the name of 
 a third party witiiout his authority. The Court acts in such case on tiie 
 gnmnd tliut Its process is In-ing abused. 
 
 Then' Ih no right to n^strain the remov.il fif exigible giKKls where there is no 
 mitwistiiig judgment or order under which ex»'Cution might be issued ; see 
 Xfwt'iii V. Xciiidii, 55 L. .1. Pro. 13 ; nor the alienation of her separate pro- 
 iiertv 1)V a married woman ]H'iiding an action against her to recover a debt : 
 Sai I''r<„: linn/,- v. T/iomns, 24 W. R. 1013. 
 
 X(i Court will issue an injunction wliere if the thing sought to be n'strained 
 is al'owc/l to go on, no legal injury is done to any one : per Brett, L.J. ; S. 
 Imiim It!/. Co. V. '.'. .V. Rn. Co., 48 L. T. X. H. tHMi. 
 
 In SIrivl V. I'liion linnk of Sjndn and Knijhiixl, 30 Ch. D. 15<>. an injunction 
 restraining the use of the telegraphic name "Street London " was refused, it 
 lieing lield that defendants had done no injury, and that the matter wivs simply 
 (ine of inconvenience, which the Court hiul no jurisdiction, to restrain, though 
 miittHkes had occurred and ])laintifT'8 telegrams had been received unci aliened 
 liy defendants. 
 
 But the Court has jurisdiction to grant an injunction tf) give effect to a legal 
 right, and i\w only limit to such jurisdiction then is, that it shall Im^ just and 
 oonvenieiit tonuike the order : Corportttinu of Cork v. Rooncj/, 7 L. R. Ir. 191. 
 To use the woixls of .Tesstd, M.li., in AnliiH v. Corporation of Southampton 
 (supra) at p. 148: "Of course the wonls 'just and convenient ' do not mean 
 that the Court is to grant an injunction simply Ix-cause the Court thinks it 
 odiivenieiit. It nu>ans that the Court shoidd grant an injunction for the pro- 
 tfttion of rights, or for the prevention of injury ivccording to legal principh-s. 
 The moment it is found that then* is a legal principle, that a man is nlxjut to 
 mitfer serious inj<iry and that there is no pnttence for inflicting that injury ujKin 
 him, the Court ought to interfere." 
 
 The granting of an injunction to n>strain the doing of a particular thing is an 
 act deixndi'nt on the discivtion of the Court and in exercising its discretion 
 the Court will con.uder amongst other things whether the Act complained of 
 will imKhici' injury to the applicant, whether the injury can \\v. atoned for by 
 liamages, and wiiether the damages must \w sought m successive suits or may 
 I »■ obtained once fo; all : Itohfrti/ v. Allmun, 3 App. Cas. 709. 
 
 .\s to the term of imprisonment of |K>rsons in contempt for breacli of an order 
 .if the Court : see Re havie.s, 21 (l B. D. 23(J. 
 
 The rigiit to an injunction to restrain trespassers formerly deix-nded on Pestrain- 
 wliether the person sought to l)e restrained was in jxjssession or not, and if in ing tveB- 
 |<i!«es.sioii whether he was a me«' tre8|)assfr or acted under colour of right: see passes. 
 Kerr on Injinictions 289, Loinu/es v. IMlle, 33 L. J. Ch. 451 ; 10 Jur. N. S. 
 i.'G; Sliiiisfiird v. Ilurl.sloiie, L. R. 9 Chy. llfi. But the Canadian Legislature 
 lungMiiKc dealt with this difficulty by I'iuvcting (20 Vict. c. 5«), s. 4 ; Con. Stat. 
 l". C. e. 12, s. 27 ; R. S. <). c. 40 s. .S9) that "the Court may grant an injunc- 
 tion to stay waste in a proper case notwithstanding that the party in posses- 
 »iim claims by an i«l verse legal title." The enactment in the above clause 
 "13 (8) is to the same effect. 
 
 r-'it.t , 
 
iri'T- 
 
 Interlocu- 
 tory iii- 
 
 jUUOtiODB, 
 
 i i^ |ii 
 
 in 
 
 56 THE JUDICATURE ACT. 
 
 BS. (S). In A mm W. N. 187fi, 38, an •'x parte applioatinn for an injunction rfHtraining 
 a man fn«n tivHpaMHing with a horwe and cart was refuswl, %\w >^w\u^' remark- 
 ing that " injunctionH are not ordinarly granted for ninnt trt'HpaHH unlt'SN m>riou» 
 injury it) thr«'at«'ned to i\w proiM-rty.' On a fn-sh ai)i)lication Iwing iiinde in 
 this cane, after notice to the defendant, no order waM niwie on the deft'mlant 
 ciniHenting that damages should \yo aMHCHHed up to the date of the trial : SUikin 
 V. Harriw, ik 105. 
 
 Jnterhiciifiiri/ /nJniKiionii.— The offlc** of an interlocutory injunction in Himply 
 to n*tain niatterH in utalii quo till the trial ; A'riV anil Siaijiira Uj/. ( '<>. v. </ 11". /,'. 
 '.'('., 21 (>r 171 ; an<l the Court will not determine legal rights on such an interlo- 
 cutory apnlication : <i. T. Ry. Co. V. Credit Valley R. Co., 2(! (4r. 572. Seealno 
 Lyhhr v. llarle, W. N. 1883, 127 ; and Attenbnromjh v. Limdmi, etc., Tehiihmt 
 ('u., W. N. 1884, 2, where the Court declined to consider the (luestiuiiH 
 involved till the hearintr. 
 
 The Court will not hy an inU-rlocutory f)rder interfere on Ix'half of one iiartv 
 
 a way which might nijure the other in case he should succeed : ///// v. Ai«- 
 
 wood, 28 W. R. b58 ; 42 L. T. N. S. 105 ; Kvans v. I'uleMon, W. N., 1880, 127, 
 
 A plaintiff was held not entitled to have niatte-rs kejit in stain i/ioi by ar 
 injunction, not merely until the trial, hut until the case could 1h( heard liy the 
 Court of ApiH'al, wher«! the decisions in Courts of first instance were ft^aimt 
 the plaintin, and tlierefore <mless time was given to take the case to tlie Court 
 of Ap]>eal lie would bo without substantial relief : U'yld v. Mc.Maslii; 4 Ont. 
 717. 
 
 The Court may interfere by mandatory injunction on an interlocutory aiipli- 
 cation, Imt the right must hv very clear mdee<l : Toronto Breirimi and Mtulimj 
 Co. V. Blake, 2 Ont. 175; lUmner y. II. If. Ry Co., 24 Ch. I). 10. A manda- 
 tory injimction to pull down buildings will not Ix' granted u|>on an interlocu- 
 tory application : Johndon v. Royal Courts of Justice, W. N. 1883, 5. 
 
 Any injunction which can l)e granted by interlocutory order, can a /nrtiori 
 be granted at the trial : Heddow v. lieddow, !> Ch. D. !t3. 
 
 Aa to the mtxle of disjKising of the costs when* a party obtains the relief he 
 Reeka on an interlocutory motion, see Sunnenschein v. /id/vtdn/, 57 L. T. N, S. 
 712. 
 
 The plaintiff must shew u|K)n his own material a prima facie right to the 
 injunction, otherwise it will not In- granted, however nuich the balance of am- 
 venience maybe in favor of grantmg it : SociM Anoni/me, etc., v. 'fili/hiimu, 
 etc., 25 Ch. D. 1. 
 
 The Court on an interlocutory application for an injimction should consider 
 the balance of convenience, and if <m the on(! hand irreparable injury may be 
 caused by withholding the injunction, while on the other hand any injury occa- 
 sioned by the injunction may Ik; comijensated for by damages, tne injimction 
 should Vie granted : Corporation of Cork v. Rooneif, " L. R. Ir. 1111 ; see also Mtii- 
 lien. v. l>orkin(i, 20 Ch. D. .51)5; Bonner v. (I. If. Ri/. Co., 24 Ch. 1). 1<»; and 
 Mason v. tirand Junction Ri/. Co., 2(i (Jr. note p. 280; (Iniftioi v. W'nlwn, .51 
 L. T. N. S. 141 ; 27 Ch. D. 43 ; Walker v. I larke, trO L. T. N. S. Ill ; 35 W. 
 R. 245; Hamilton, etc., Rmd Co. v. Rasptierry, 13 Ont. 4(iti. 
 
 In patent The principles on which the Court ought to act in det(Tininiiig whether t« 
 cases. grant an interlocutory injunction to I'estrain an allegixi infringement of a 
 
 I)atent, or only to require the defendant to keep an account, were discussed in 
 
 J'limpton V. Spiller, 4 Ch. D. 28«. 
 
 Mandatory Mandatory Injunctions.— These may Vje granted as formerly : see Strelley v. 
 
 injunc- Pearson, 28 W. R. 752; Mullins v. Jfmwll, 11 Ch. D. 7(53"; Smith \. Smith, 
 
 tions. L. R. 20 Eq. 504 ; Gaskin v. Balls, 13 Ch. D. 324 ; Hermann Louij v. Beau, % 
 
 Ch. D. 306 ; but an injunction will not be granted where the j)roi)er remedy 
 
 is a prerogative writ of mandamus: Ulossop v. Ileston Loc. Board, 12Ch. D. 
 
 120 ; Aitorney-IJen. v. Dorking, 20 Ch. D. 595. 
 
 For a statement of the function of a mandatory injunction, see Olussop v. 
 //M<(m, 12Ch. D. I'M. 
 
 Balance of 
 
 couveu- 
 
 leuce. 
 
RULES OF LAW. 
 
 67 
 
 MitreUanenuK Deciniims. — Tlie following are further deciHiona «ince the Jud. 
 Alt, ilhiKtruting tho principleH on wliich the Court avU in reganl to 
 injiiiictidiii* : 
 
 The Court huH no juriwliotion to prevent a foreign Hovereign from removing 
 hit |mi|ierty in thin country, though it Ixt an article made in infringement of a 
 imteiit ; itnd a foreign wivereigu who HuhmitH to l>e made a defendant in an 
 ui'tion for the |mr]Mwe of em|)owering the Court to nuike an order doeH n<it 
 thereby [mrt with any of hin rij(htH : \'ai-tiiinfiir v. Krit/tp, !l Ch. 1). 3.51. In 
 the niiJu'tue of any Htitficient equity to jUHtify it the Court will not rewtrain hy 
 injunction i» plaintiff from proceeding in a foreign Court. Mere hardHhip or 
 inuoiiveiiienfe will not l)e siitticient reason : Fliirlier v. Ri>il;ierii, 27 W. R. \\~, 
 liut where u fon'igner has ap|N;ar)Hl in an KngliHli Court the Court has a 
 liiiicretion to reHtraui him from litigating the Hame Huhjeot matter in hii« own 
 country : liaiHiim v. Siiiiniii'tti, 2U W. R. 22H. 
 
 In A> /Kiiir Mt/'hiiil, 12 Ch. I). t»32, JcHsel, M.H., refiined leave to nerve a 
 writ out of the jurisdiction on the ground that the plaintiff could have as 
 effectuftl a remedy by application to the lixjal Court. Ah to providing for an 
 injun';tioii where the writ is to bt< served out of the jurisdiction, se« } Ditm/ v. 
 linmseii, 1 Ch. I>. 277. 
 
 Pro|xTty wliich is the subject of an action may be preserved under Rule 1135, 
 by nieaiin of an injunction : Slrelle>i v. I'mrsim, 43 L. T. N. S. 15.5. 
 
 In Vi'hili ((• ''". V. Itmham <{• <'()., 4t» L. A., C. P. 415, wliich was an action 
 atraiiwt a jewelliT for the return of goods deposited with him, the defendant 
 Wiis ordered to deliver up the goods to an officer of the Court to abide the 
 event of tlie action. 
 
 In Lmil'iii mill ('(iiniii/ Hitnkin:/ i'l. v. L'-win, 21 Cli. I). 4!K>. an equitable 
 in')rt)fu(fee who had commenced an action for foreclosure obtained an injunction 
 rf>traiiiiii>: the defendant from parting with the legal estate. 
 
 In .liM'i, \V. X., lS7(i, 21, a defendant was restrained from parting with a 
 hill of exchange. See also /l;i<<«, i'liilSl. 
 
 Injunctions have bi'i-n granted r.'-ttraiiiiu'' thf ciinmittee of a club from act- 
 ing iniproiierly ill ex^ielling a member: hixhrr v. Ki'itiu', 11 Cli. 1). 3.53; l.n- 
 li;iiiiiir>' V. Ktirl nf \\ /iiiriir/if/'i; 13 Ch. 1). 341); see also hiiw\-iiii v. Anlnihus, 
 ITl'h. I). f!l5 ; Fiixifi- \\ llnrrisiin, W. N. ISHl, 171; restraining tiie piiblica- 
 tiiill of lil)els : Tlnnifi/ Cnttlf Fund Cn. v. Miinsiiin, 14 Ch. 1). 7<>3 ; Soj-ln/ \. 
 IkilirhnH,/.; 3 t*. r. I). .33!) ; llui/irnr,/ v. N,t>fii',iril, .34 Ch. I). 1!»S ; or slander- 
 (iiK oml statements injuriouMly affecting jiroperty or tradi- : llTiiiniiit /."«</ v. 
 li'iiH, Hii/i. ; or tending to injure a frieiidlv sixsiety or a joint stinik company : 
 Hdl V. //((/•/ h,n-i,'n, 31 W. K. 22 ; 47 L. T. \. S. H2. Though the jurisdiction in 
 tlie ease of such liliels is clear, even on an interlocutory a]>plicatioii, the Court 
 only iicts in a strong case and in general not iiidess satisfied that the state- 
 ments coiiiolained of are untrue : ijiiart'. Ilill Unlil Mini nil Cn. v. I'u'ull, 2« Ch. 
 \). .Vll, ami are clearly libellous ; nor where there would be great dirticulty in 
 framing an order so as not to prejudice the trial : Liefr/tnnl, rlr., Stnrf.t Assnrn. 
 V. f^ii'iii,,!, .57 L. T. X. S. 770; .58 L. T. X. S. 2m ; 37 Ch. 1). 170. .See also 
 lliiiriiks V, lliriiilfs, W. X. 1S78, 11; and Licfrpitot, etc. v. Smith, 37 Ch. 1). 
 170, where an injunction wiw refused. 
 
 The Court has jurisdiction to restrain the commission of acts which if coni- 
 inittol would Ih- a contempt of Court, e. </., the threatened publication of a 
 statement of claim with comments, as calciilat(^d to prevent a fair trial : Kilrut 
 V. *(/•//, ;!1 \V. R. 227 ; 48 L. T. X^. .S. (!4 ; publication of advertisements warning 
 the public tiiat an invention claimed by the plaintiff is an infringement of 
 (iefeiuhiiit's patent rightR-: see lidrnri/ v. United Telephme ('n., 28 Ch. I). 304. 
 
 To maintain an action qnia tini-t to restrain an ajijirehended injury the 
 iikintiff iniist pnive imminent danger of a substantial kind, or that the appre- 
 liendeil injury, if it dotis come, will be irreparable : Fletcher v. lieiUif, 28 Ch. 
 
 An injunction may be granted restraining an act, though a statute imiioseci 
 a iwiialty for its commission : Hamilton, etc., Ruad Co. v. Hxutpberry, 13 
 Ont. Wj. 
 
 8MX 03. (8). 
 
 Miscellan- 
 eouR cawH. 
 
 Foreign 
 
 Hovereigii. 
 
 Proceed- 
 
 inffs ill 
 foreitjii 
 Courts. 
 
 I'rosorva- 
 tioii of 
 property- 
 
 Kestrain- 
 in'.{ action 
 of elulm. 
 
 Li lulls. 
 
 Tlireaten- 
 e«l coii- 
 teiiipt. 
 
 Appro- 
 lieiidud 
 jury. 
 
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 TEST TARGET (MT-3) 
 
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 PhotDgraphic 
 
 Sciences 
 
 Corporation 
 
 
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 WiBSTH.N.Y. USSO 
 
 (716) 172-4503 
 
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 V- ' 
 
 68 
 
 THE JUDICATURE ACT. 
 
 See. S3, (8). An injunctiim is granted against a person not a party, only when he ia agent 
 of a party, or in cases where he is doing something which amounts to contumpt 
 of the Court or its jirocess : Re (la;i <t' 'rVt.y v. Ilanmck, 80 L. T. Jour. 392. 
 
 Arbitrator. The Court will rwstram an arbitrator from acting in any case in which he is, 
 in the opinion of the Court, unfit or incompetent to act : Maliiicsburj/ v. limhl, 
 2 Ch. D. 8!t ; Ikdd.w v. Beddnw, 9 Ch. D. 89. In Mcholas v. Bracachis, 1 P. 
 D. 72, (sec also Tlie Hnrlick, 3{> L. T. N. S. 22G), the Court restrained all i)ersoiw 
 from dealing with shares in a ship forming part of the estate of a deceased 
 1 ■ 'J.- See also lioyk v. Jidtwj Llaiitwit Cillieri/ Co., 2 Ch. D. 72(i. 
 
 Trade - -^ injiniotion will ha gr.-inted to rostru,in the exiwrtation of goods under a 
 
 markH. trade nurk likely to deceive a foreign though not a home purchaser : Orr 
 Kiiiii-i -. .r.:inf!ton, 13 Ch. D. -lai. 
 
 tt..dteuar.u. 
 
 Delay, 
 
 Hearing 
 in camera. 
 
 W • f injtipotio.i was applied for to restrain a landlord from exercising 
 'lis It .. s of distress, until the determination of an action brought by the 
 
 tenui.v. , list tlie landlord, to try his right to the rent, the injunction was 
 granttu fo. a fortnight, and continued cmly if the rent should in the nieaiitimi- 
 be iiaid iin.a Court : >Shaii! v. /iurl ufjeisej, 4 C. P. D. 120, 359. 
 
 An injunction will not be granted at the suit of a landlord or reversioner to 
 restrain a trespass or nuisanca not of a jjermanent character, fir not actuaUy 
 injuring the reversion ; Cnaper v. Craljtrce, 47 L. T. N. S. 5 ; 51 L. J. Chy. 18!"l. 
 
 In Bleuntt v. lidwliwj W. N. 1875, 202, an action of ejectment against a 
 landlord, the plaintifif was restrained from issuing writs against the tenants. 
 In Drakes I'atcnt VoncrHc v. liiiwir, lb. 230, an order was granted ivstraining 
 the defendant from imlling down partially erected houses. In Fen ner v. Bedfnnl, 
 III. 238, an order was made on an c.f iiarte application restraining the continu- 
 ance of trespasses and destruction of property, and liberty was given to serve 
 the order on any iiersons found on the premises as well as the defendant. In 
 Tozer v. Widford, lb. 250, a defendant who had covenanted not to do any act 
 dangerous to his co-tenants, was restrained from working aa engine, in conse- 
 cpience of the working of which tlia plaintiff's insurance company had refused 
 to continue his insurance, wher^iby he had become liable under a covenant with 
 his superior landlord. 
 
 An injunction restraining a landowner from taking proceedings before Jus- 
 tices of the Peace on an irregular notice under a Drainage Act, was granted as 
 shorter and cheaper than a prohibition : lledh'n v. Bates, 13 Ch. D. 498 ; but 
 this was because the Court was seised of the case aliunde. Where it is a mere 
 case of prohibition and the Court is not called upon to decide the question on 
 other grounds, between the same parties, there is no reason for changing the 
 proceeding from prohibition to injunction: >Stannard v. Vestry of til. (/t'fev, 20 
 Ch. D. 19G, 197. 
 
 It was held that an action for an injunction may be commenced against a 
 Local Boai'd without the month's notice required by the Public Health Act, in 
 all cases where before the Judicature Act, a bill would ^ ^ve been sustained 
 in Chancery for an injunction ; and although damages are claimed by way of 
 subsidiary relief : Flawcr v. Lmv Lcjlon Local Bmrd, 5 Ch. D. 347 ; and when 
 the action is bonafiik brought for an injunction, damages may be awarded in 
 lieu of the injunction, though no notice of action has been fiven : Chapman 
 V. Auckland, 23 (I B. D. 2i»4. 
 
 Where if the defendant succeeded in the House of Lords her success would 
 be useless unless the funC was jirotected in the meantime, it was held that the 
 injunction ought to be continued pending the aiipeal : I'ulini v. Crau ; Slnrhs. 
 Freccia, 12 Ch. D. 438. 
 
 Delay is, in general, no bar to an injunction in aid of a legal right, unless 
 the legal remedy is barred by the lapse of time : FuUwdoU v. Fullwimd, 47, 
 L. J. Cliy. 459 ; but where buildings (which transgressed the provisions of 
 restrictive covenants) had lieen allowed tti remain for five years without com- 
 plaint, an injunction was refused : daskin v. Balls, 13 Ch. D. 324. 
 
 In Mellor v. Thmimmi, 31 Ch. D. 55, an injunction motion was heard i« 
 camera on the ground that a public hearing would defeat the object of the 
 action. 
 
RULES OF LAW. 
 
 59 
 
 As to awarding damages with, or in lieu of, an injunction, see sec. 53 (9). Sec. 63, (8). 
 
 Underkd'bKj as to hanuiges. — An interlocutory injunction ought to be con- Damages. 
 ditioiiiil upon an undertaking as to damages : (wmham v. Campbell, 7 Ch. D. 
 401 • '''"7' I'fCtirk V. Rmien, 7 L. R. Ir. 191; Re Johnston ex p. Abmnis, 50 
 L. T. N. S. i84. 
 
 An order having been made restraining the defendant from proceeding with Undortak- 
 certain buildingH, he ajJiwaled, offering an undertaking to abide by any order ing ^^ to 
 tlie Court might make at the hearing as to pulling down or alternig any damages. 
 buildingH erected by him ; the Court of Apjieal, being of opinion that the rij^ht 
 to an interlocutory injtmction was not eataolished, discharged the order, taking 
 from the defendant an undertaking in the tenns of his offer, but held that, 
 witliout any undertaking, the Court would have jurisdiction at the trial to 
 order the pulling down of any buildings erected after the commencement of 
 the action, or after notice had been given to the defendant that the plaintiff 
 objected to the building : Smith v. Day, 13 Ch. D. 051. 
 
 The undertaking of a married woman as to damages is sufficient : Re Pri/iiue, 
 53 L. T. N. S. 4(15. 
 As to enforcing an undertaking as to damages, see note to /{tile 1134. 
 
 yotio; (tnil enforcement, of Injunctions. — A notice granting an injunction may Notice of 
 be given by telegram. A sheriff's officer who receives such a notice should injunction, 
 inquire by telegrajih to see if it l)e bona, fide : Kx parte Langley, 13 Ch. D. 110, 
 in which case it Wiis held that a London solicitor obtaining an order restraining 
 a sale in the country ought to telegraph to his agent at the place and ask him 
 to give notice to the persons affected. See also R', liri/ant, 4 Ch. D. 98. A 
 defendant is bound to obey an injunction of which he is made aware before 
 being served with it : Steumrt v. Richardson, 17 (ir. 150 ; and a wilful breach of 
 the uijunction may lie punished by committal, even though there had been 
 ample time to serve the order, and it had not been served : United Telephone 
 Co. V. Dale, 25 Ch. D. 778. See The Serar/lio, 10 P. D. 120. 
 
 Receivers. — This sub-section seems to have enlarged the right to a receiver. Scope of 
 In A ntjlo- Italian Hank v. liavies, \i Ch. D., at p. 293, Cotton, L.J., said, t^e enact- 
 " Under that (the present) sub-section the Court may and does grant receivers Lgggiyers 
 where it never could have done so before. Thus, for instance, it has the power 
 to grant a receiver under that section where a plaintiff has himself the power 
 of obtaining jKjssession at law." See also Tillet v. Mxon, 49 L. T. N. S. 598 ; 25 
 Ch. D. 238; The Ampthill, 5 P. D. 224, and Oawthorpcy. (/aivthorj)e,W. N., 
 1878, 91, where Jcssel, M.R., considered that there was no limit to the power 
 of the Court to grant a receiver on motion, except that it was only to he exer- 
 cised where it ajmeared just and convenient. ( In Habersham v. (rill, W. N., 
 1875, 231, (^uain, J., had indicated an oiiinion that the words "just and con- 
 venient " wcire to be interpreted by the old practice. ) 
 
 The former Common Law Courts had no ix)wer to appoint Receivers. 
 
 In Chancery a Receiver would not be appointed at the instance of a mort- 
 gagee having the legal estate, or other iKjrson able to obtain protection 
 at law : Jiernei/ v. Stnvell, ] J. & W. (i47 ; Ihixton v. A/onkhoiuie, G. Coop, 41 ; 
 Kelsei/ v. Kehey, L. R. 17 Eq. 495. But see now Tillett v. Nixon, 25 Ch. D. 
 238, and Ma,son v. Westoby, 32 Ch. D. 200, and note supra, as to the |K)wer of 
 the Court now in all cases where it is " just and convenient." 
 
 Thus in /'(Wfc v. Fletcher, 1 Ch. D. 273, where the plaintiff was mort- 
 gagee of property, as to some of which his title was legal and as to some equit- 
 able, Bacon, V.C., on an interlixsutory application, appointed a receiver for the 
 whole. In Truman v. Redyrave, 18 Ch. D. 547, a receiver was granted on 
 application of a legal mortgagee who was prevented by the mortgagor from 
 taking [jossession, and an injunction restraining the mortgagor from mterfering 
 with the management of the business and ixissession of tlie premises. (See the 
 form of order in that case. ) So the Court nas jwwer now to apxx)int a receiver 
 where the title to the projierty is uncertain and disputed : Berry v. Keen, 51 
 L. J. Chy. 912. Such cases as Talbot v. Hope Scott, 4 K. & J. 139, and Dunn 
 V. Ferrior, L. R. 3 Chy. 719, are not now law {ib). 
 
60 
 
 THE JUDICATURE ACT. 
 
 Sec. 53, (8). 
 
 Keceivers 
 by way of 
 equitable 
 execution. 
 
 An interim receiver of rents has been, however, refused to the plaintiff in an 
 action of ejectment : Pmnell v. I'mvell, 73 L. T. Jour. 140, but granted in 
 an action by a landlord against his tenant for recovery of land, under a proviso 
 for re-entry : (imdkiii v. Bird, .'>2 L. J. Q. B. 2(53, and granted in Heal and 
 Personal Admiice Co. v. Mc(\irthy, 27 W. R. 700 ; 40 L. T. N. S. 878, an action ot 
 ejectment by a sub-mortgagee, where the property was wasting and insufficient, 
 and the plaintiff's action had been stayed till another action by defendant 
 against the plaintiff and others should be ready for tri^' 
 
 In an action for partition, where one of the co-o\ -ners is in occupation, 
 though not in exclusive occupation of the property, the Court has jurisdiction 
 under this sub-section to appoint a receiver until the hearing : Porter v. Lopei, 
 7 Ch. D. 358. So in an action to enforce specific perfonnanee of a parol agree- 
 ment to execute a bill of sale of personal chattels upon an ex parte motion before 
 appearance of defendant, there being evidence of immediate danger of the 
 chiittels in question being disposed of: Taylor v. Kckersleif, 2 Ch. D. 302. 
 Where in an administration action the defendant, the sole surviving 
 executor and trustee of the testator, had been personally condemned in costs in 
 an action to test the validity of the will, and an execution had been issued 
 against liim, and there had laeen a return of nulla bona on the application of 
 the present jjlaintiffs, who were executors of the deceased executor of the testa- 
 tor, who was also a creditor of the testator and a residuary legatee, a receiver 
 of the proceeds of the sale of part of the testator's real estate, and of the rent 
 of the other part, and of the outstanding personal estate was granted : Uaw- 
 thorpe V. Uawthiyrpe, W. N., 1878, 91. 
 
 An interpleader issue being ordered to try the right to goods seized iu execu- 
 tion a receiver and manager of the property may be appointed under this 
 section instead of a sale by the Sheriff; e. <j., where the property was a cab busi- 
 ness, a going concern : Howell v. Dawson, 13 Q. B. D. 67. 
 
 A [simple contract creditor of a joint stock Co. cannot obtain an interim 
 order appointing a receiver of the assets of the Co. on the ground that the Co. 
 is insolvent, or has made an assignment of its assets : McCall v. Vanaik 
 Farmers' Mori. Ins. Co., 18 C. L. J. 117 following. Mills v. yorthern Ry. o] 
 Buenos Ayres Co., 5 Chy. 621. 
 
 As to the rights of debenture holders of a company, see Huhbuck v. Helm, 
 56 L. T. N. S. 232. 
 
 In a creditor's action for administration against an executrix, a decree had 
 been made and a summons taken out for a receiver ; but pending the summnns 
 the sole defendant died. The Court, on the application of the plaintiff, ap- 
 pointed an interim receiver, whose ])owers were to extend for ten days after 
 the ai)pointment of an administrator de bonis non, the plaintiff undertaking to 
 use all possible si)eed in obt^iining the appointment of such administrator, and 
 to accept short notice of motion to discharge the receiver : /h re Parker, Cash 
 v. Parker, 12 Ch. D. 203. 
 
 Receivers have till recently been often ajipointed as a' means of enforcing 
 judgments and reaching property not capable of being seized under an execu- 
 tion, e. !). at the instance of the plaintiff who had recovered judgment, and 
 sued out an elegit against the debtor whose only interest in land was an equity 
 of redemption in fee, for the protection of the property until a decree could 
 be obtained, under which the equity of redemption could be reached : see 
 ..n-ilo-Ilaliun Bank v. /Meies, !) Ch. D. 275, also Re Watkin.i, 13 Ch. D. 
 252 ; and in Re Pope, 34 W. R. 693, without first suing out an elegit. 
 
 In Ontario the Sheriff can sell an equity of redemption. 
 
 Similarly a receiver has been appointed to reach the life interest of » 
 married woman in stock : Bryant v. Bull, 10 Ch. D. 153 ; a legacy to a debtor 
 expectant upon the death of a tenant for life : Macnicoll v. Pamell, 35 
 \y. R. 773 ; a judgment debtor's interest in subsisting life insurance jwli- 
 cies and in a charge ujjon land : Beamish v. Stephenson, 18 L. R. Ir. 319 ; 
 moneys secured by mortgage held by the debtor who was resident out ot the 
 Province : Parent v. Lortie, 7 C. L. T. 195 ; and in other cases where pnxjeed- 
 uigs for equitable execution are not applicable : see Westhead v. Bileu, 25 Ch. 
 D. 413 ; Book v. Ruth, 20 C. L. J. 193. 
 
RULES OF IikVr. 
 
 61 
 
 Oil such application the plaintiff was sometimes appointed the receiver. Seo. 63, (8)1. 
 Thus a judgment creditor of a husband and wife, was upon his own application 
 aiJiwintwl receiver of the income of the wife's reversionary interest under a will : 
 Fitarle v Jiland, 11 C^. B. D. 711. See also Book v. Ruth, sup.; Uewett v. 
 Murray, 52 L. T. N. S. 380 ; McGarry v. White, 16 L. R. Ir. 322. 
 
 In Kincaid v. Kincaid, 12 P. R. 462, this was called " one of the now usual 
 and ordinary methods of execution, " and it was held to be no answer to the 
 motion that tlie judgment creditor could probably make the amount of his 
 judgment by sale of other property under common law process, but in 
 Manchester, etc. v. Parkinson, 22 t^. B. D. 173, it was held that in the absence 
 of any legal impediment to obtaming execution of the judgment in the ordinary 
 course of law by fi. fa., or attachment of debts, and of any special ciroum- 
 fitances showing it to be just or convenient, an appointment of a receiver should 
 not be made. Street, J., in Trust <{• Loan Co. v. 'torsline, 12 P. R. 6,54, refused 
 an order in a case where a garnishing order would afford a remedy. In view 
 of the enlarged powers of attachment under Rule 935, a garnishing order will 
 in general suffice, and it has now been decided in the Chancery Division, that a 
 receiver can only be appointed at all, since the Creditors' Relief Act, to receive 
 and distribute in accordance with the principle of that Act : Siivester Mfji. Co, 
 V. McKdcltim, 9 C. L. T. 138, and he should probably be an officer of the Court. 
 Kirk- V. liiin/ess, 15 Ont. 608. 
 
 Except in cases of emergency the application should be on notice. Still, in Practice. 
 cases of emergency a receiver will be appointed ex parte, not only before 
 appearance : 'J'ai/lor v. Kckersky, 2 Ch. D. 302 ; but before service of writ : re 
 h.s estate, 1 Ch. D. 270 ; Volbourne v. Colbourne, 1 Ch. D. 690; Bi/de v. Warden, 
 1 Ex. D. 309 : Evans v. Lloyd, W. N. 1889, 171. 
 
 In an action for the specific performance of an agreement to accept a lease 
 of a farm in which judgment had been given for the defendant, the plaintiff 
 having aiiiH'altd, the Court of Appeal (no previous application having been 
 made to the Divisional Court or a Judge) appointed the plaintiff receiver and 
 manager of the farm without security, on his undertaking to abide by any order 
 which the Court might mate in the matter : llyde v. Warden, 1 Ex. D. 309. 
 
 The plaintiff may he appointed receiver in cases of emergency : Taylor v« 
 Eckersley, 2 Ch. D. 302 ; and under special circumstances ; Hyde v. Warden, 
 
 1 Ex. D. 309; uu. not the plaintiff's solicitor: Jn re Lloyd Allan v. Lloyd, 
 12 Ch. D. 447 ; one of the members of a dissolved partnership in certain cases 
 may be appointed receiver : San/ant v. Read, 1 Ch. £>. 600. The manager of a 
 mining company was apix)inted receiver in an action by debenture nolders 
 against the company for foreclosure : Peek v. Trinsmaran Iron Company, 2 Ch. 
 D. 115. 
 
 An impaid vendor of property of a company in voluntary liquidation, and 
 unable from insolvency to carry on its works, was appointed without security 
 or salary : linyle v. liettws Llantioit Colliery Company, 2 Ch. D. 726. 
 
 The receiver must, as a rule, give security, but, in case of emergency, an 
 interim receiver will be apjwinted without security : Taylor v. Kckersley. 
 
 2 Ch. D. 302. Persons who are deeply interested in the proper management 
 of a concern will not always be required to give security : Boyle v. Betl^os, etc., 
 Co., 2 Ch. D. 726. 
 
 Where security is required, the receiver has no title until his security ia 
 perfected ; EHteards v. Edioards, 2 Ch. D. 291 ; but he is liable to account for 
 all moneys coming to his hands in that capacity at any time, and his sureties 
 are resiwnsible for any moneys : Swart v. Flood, 49 L. T. N. S. 467. 
 
 A defendant may apply for an injunction and a receiver : Sargant v. Read, 
 1 Ch. D. 600, in which case both plaintiff and defendant applied, and the 
 plaintiff was apjKjinted personally, on the ground that he was the most suitable 
 person, as the business required almost profesaioiial skill. Formerly the 
 defendant could not apply before decree : SU-linson v. Jladley, 11 Beav. 614. 
 
 The apiK)intment of a receiver is in the discretion of the Court, and tho 
 Court of Api)eal will not, ls a rule, interfere with that discretion : Aothard v. 
 I'roctor, 1 Ch. D. 4. 
 
 fiji*. '( 
 
 ,iH^' 
 
€2 
 
 SBC* 03| 
 
 <», 10). 
 
 Court may 
 award 
 damages, 
 «tc. 
 
 THE JUDICATURE ACT. 
 
 A person wlio is not a i)arty to an action is not entitled to apply by motion for 
 i)ayment of money to him by a receiver appointed in the action, even though 
 his claim is made in respct of a debt projjerly payable out of the funds in the 
 receiver's hands : Ihvckiehank v. Kaxt Lundon Ritilvmy Cimipany, 12 Ch. D. 839; 
 see y'cate v. I'ink, 15 Sim. 450 ; 3 Mac. & G. 476. 
 
 9. In all cases in which the Court has jurisdiction to 
 entertain an application for an injunction against a breach 
 of any covenant, contract or agreement or against the corn- 
 mission or continuance of any wrongful act, or for the 
 specific performance of any covenant, contract, or agree- 
 ment, the Court, if it Lhinks fit, may award damages to 
 the party injured either in addition to or in substitution 
 for such injunction or specific performance, and such 
 damages may be ascertained in such manner as the Court 
 may direct, or the Court may grant such other relief as it 
 may deem just. E. S. 0. 1877, c. 40, s. iO. 
 
 Taken from Lord Cairn's Act 21 & 22 Vict. c. 27, s. 2 (G). This section does 
 not enable the Court to grant damages in a case where before the Act damages 
 were not recoverable, e. {)., in the case of an oral agreement not capable of 
 8i)ecific jierfonnance in Equity, and in respect of which the defendant, in an 
 action at law for damages, might have successfully pleaded the Statute of 
 Frauds : Be Xm-thuiiiherlund Avenue Hotel Co., Siilli/'s Case, 54 L. T. N. S. 76, 
 33 Ch. D. 16. See also Lavery v. Parsell, 37 W. R. 103. 
 
 Where a plaintiff has established his right to a })eriietual injunction, the 
 Court has no power to oblige him to accept damages in lieu of an injunction : 
 Krehl v. Biirrell, 11 Ch. D. 140, and (Ireenwuod v. Hontsey, 33 Ch. D. 471, in 
 which IloUand v. Wttrley, 20 Ch. D. 378, was distinguished. See also Alkn v. 
 Ay res, W. N. 1884, 242. 
 
 When the wrongful act has ceased before trial the Court may under this Act 
 in lieu of an injunction, which would be useless, assess at the trial the damages 
 from the commencement of the wrongful act, including damages accrued since 
 the writ : FriU v. Hobson, 14 Ch. D. 542, 557. 
 
 Where the wrongful act has been discontinued before suit without the plain- 
 tiflf's knowledge it was held that the Court had no jurisdiction under the 
 above enactment to make a decree for damages : Brockinqhm v. J'almer, 
 18 Gr. 488. 
 
 See also HVt/'fe v. Boby, Si L. T. N. S. 052 ; Kino v. Ritdkin, Ch. D. 160; 
 National Provincial Plate Glass Ins. Co. v. Prudential Ass. Co., 6 Ch. D. 761; 
 Krehl v. Burrell 7 Ch. D. .551 ; Fritz v. Hobson, 14 Ch. D. 542 ; Rock Portland 
 Cement Co. v. Wilson, ,52 L. J. Chy. 217 ; .Sauers v. Colluer, 28 Ch. D. 103, and 
 Serraii v. ^''oel, 16 Q. B. D. 540. 
 
 Purchaser 
 not affect- 
 
 I.U. B,uov;t- \^' ^^ order of the Court under any statutory or other 
 «dby"irre- jurisdiction shall not, as against a purchaser, whether with 
 ^©"^dew^of or without notice be invalidated on the ground of want of 
 
 jurisdiction, or of want of any concurrence, consent, notice, 
 
 or service. 49 V. c. 20, s. 20. 
 
 See Calvert v. (Mfrey, 6 Beav. 97 ; and Blean v. Blean, 10 Ont. 603. 
 
 •Court. 
 
RULES OF LAW. 
 
 63 
 
 11, In questions relating to the custody and education sec.63,(ii). 
 of infants, the Rules of Equity shall prevail. 44 V. c. 5, ^"^'"'*^- 
 s. 17 (9). 
 
 Sai. as English J. A. 1873 s. 25 (10). 
 
 The Common Law rule nyton these subjects is thus stated in Re Andreirs, Common 
 ]j. R. 8 t^, B., at i>. 138 :— " It appears to have been the invariable practice of Law rule. 
 tliV Common Law Courts, on an application for a habeas corpus to bring up 
 tiifl Ijody of the child detained from the father (and the case would be the 
 siimi' as to a testamentary guardian, or guardian ai)pointed by the Court ; 
 ivellfsli'// V. Jien tiforl, 2 R. & M. 03!)) to enforce the f atner's right to the cus- 
 tody, even against the mother, unless the child be of an age to judge for him- 
 self, or tliere i)e an apprehension of cruelty from the father, or contamination 
 in c'oii.-iequeuce of his immorality or gross profligacy. If the infant be of an 
 age to elect for himself, the Court w;ill merely interfere so far as to get it free 
 from illegal restraint, without handing it over to anybody. This was the course 
 adopted in IU:i' v. JJelaval, 3 Burr. 1435, in the case of a girl eighteen years of 
 iige, who was delivered from a custody ocmsidered illegal, and left at liberty to 
 go where she ])leased. But, in the absence of any right of choice, the Court 
 goes further, and transfers the infant to the proi)er legal custody. The right 
 to sucli an election, it has now been clearly decided, depends upon age alone, 
 and not on mental capacity : see £''!/■ \. i larke, 7 E. & B. 18G ; and it may be 
 taken as settled that no such choice ckv be made, at all events by a female 
 infant, under the age of sixteen. " 
 
 Tiie English Court of Chancery had an original jurisdiction, siwinging from Equity 
 the right of the Crown as parens putri-i over the persons and i)roperty of rule, 
 infants, to interfere with the Common Law rights of the father, in the interest 
 of tiie infant on the ground of the father's cruelty, immorality, etc., (as to the 
 father's rights in such case see further notes below, and Swift v. Sv-'i/t 
 6 N. R. 137 ; 34 L. J. Chy. 200, 304); or of his agreement, exi)re8s or implied, to 
 waive his rights (see Simi)sou on Infants, 136 et seq). But tnis jurisdiction was 
 not "xercised except where the Court had the means of api)lying projierty for 
 the use and maintenance of the infant (Il>.) 
 
 Under the Judicature Act, all the Divisions of the High Court have now Under 
 jurisdiction with regard to the care and custody of infants ; and, in the exercise Judicature 
 of that jurisdiction, the rules of Equity are to prevail. ■'^''*' 
 
 In Re Smitrt, 12 P. R. 312, it wa'. held that a more comprehensive adjudication 
 co\ild be had upon a petition tb.m by habeas cor pus proceedings, and in the 
 interest of the infants and all -oncerned a petition was directed to be filed. 
 Tliis was affirmed on apj)eal b.' the Divisional Court with the variation that 
 thflinbeas mipiis proceedings sliould run concurrently with the i)etition, 12 P. R. 
 43") ; and afterwards by the Court of Apjieal, but only on the ground that there 
 was a waiver of objection by filing a petition. But for this the opinion of the 
 Court was that the form of remedy chosen being c :iipetent ana regular the 
 applicant could not be comjjelled to adopt another mode of procedure : 12 P. R. 
 035. The Supreme Court quashed an ap])eal by the mother from the decision 
 that the two proceedings 8h(<uld be tried together : see C. L. T. 2G0. 
 
 A father has a legal right to control and direct the education and bringing Prima facie 
 up of his children until they attain the age of 21, even though they are wards rights of 
 of Court, and the Court will not interfere with him in the exercise of his the father. 
 paternal authority except (1) where by his gross moral turpitude he forfeits 
 his riffhts, or (2) where ne has by his conduct abdicated his paternal 
 authority, or (3) where he^ seeks to remove his children being wards of Court 
 out of the jurisdiction without the consent of the Court ; Re Amr Ellis, 
 24Ch. D. 317. 
 
 Before the jurisdiction of the Court to deprive a father of the g-uardianship 
 of his children can be called into action, the Court must be satisfied that he has 
 80 conducted himself or placed himself in such a ixjsition as to render it not 
 merely better for the children, but essential to their safety or welfare in some 
 very serious and important respect, that the father's ordinary rights should be 
 interfered with : see Re W 5. N. R. 363. 
 
 <5 '^-^ 
 
 .vf.A 
 
 I , v. 
 
in 
 
 ^5 1 
 
 M^ 
 
 Sm. 53.(11). 
 
 64 THE JUDICATURE ACT. 
 
 The affidavits of the mother and others, in answer to a rule for a habeat 
 citriim by a father to remove his child (a boy of nine vears) from the custody of 
 the child's maternal grandfather, disclosingr facts wtiich shewed the aytplican*, 
 to be a iKTSon of intemijerate and vicious life, and in the habit of using btom 
 and disgusting language, as well as jiersonal violence to his wife, — the Court 
 declined to interfere, the present custody of the child being unobiecticuable : 
 In re (rdldiwurthi/, 2 Q. B. D. 75. So the Court, in the interest of the children, 
 declined to interfere where it was contended that there had been a gross breach 
 of marital duty on the husband's part, he not desiring or intending that his wife 
 should live with him, or if she insisted on doing so he declined to meet or sppak 
 to her except at meals, and when the interests of the children required : Re 
 EhkrUm, 25 Ch. D. 220. 
 
 See also Re Feri/usiin, 8 P. R. 55G, where the father being imbecile the Court 
 refused to take a child out of the custody of its grandmother and her brother- 
 in-law. 
 
 The father, a medical officer in the army and who was under a covenant to 
 allow his wife access to his children, was held entitled to take his children with 
 him wherever his duties called him ; Hunt v. Hunt, 28 Ch. D. G06. 
 
 A wife who left her husband's home without reasonable cause, taking with 
 her their only child, was ordered forthwith to deliver the child into the custody 
 of the father with liberty to either party to api)ly in Cliambers as to access : 
 Constable v. Constable, 34 W. R. (549. 
 
 It is no answer to a habeas corpus for the production of a child that the 
 child has been delivered by the defendant to some third i)er8on who has con- 
 veyed the child out of the jurisdiction before the writ issued, — if the deliverj- 
 of such child were made to such third p"r8on after the child had beeu 
 demanded by the parent from the defendan., : Jiey. v. Barnardo, 23 Q. B. D. 
 305. 
 
 In modification of the father's rights, 18 Vict. c. 126, s. 1 (R. S. 0. 1877, c. 130) 
 was passed, by which it was provided that the Courts of Law or Equity, 
 or any Jud^e of such Courts, on the application of the mother might make 
 order allowing her access to the infant "at such times and subject to such 
 regulations as such Court or Judge thinks convenient and just ; and if such 
 infant is within the age of twelve years may make order for the delivery of 
 such infant to the" mother to remain in her care and custody "until such 
 infant attains the age of twelve years, subject to such regulations as such Court 
 or Judge may direct ; and such Court or Judge may also make order for the 
 maintenance of such infant by payment by the father thereof, or by payment 
 out of any estate to which such infant may be entitled of such sum or sums of 
 money from time to time as according to the pecuniary circumstances of such 
 father or the value of such estate, such Court or Judge thinks just and 
 reasonable." 
 
 The Imp. Act 36 & 37 Vict. c. 12, was not very different. See that Act and 
 Be Et/iel Jinmn, 13 Q. B. D. 614. 
 
 In Be Snmrt, 11 P. R. 482, it was held to be a good return to a habeas corpus 
 obtained on the father's motion to say that the infants were under 12 years, 
 that being the age mentioned in the statute and that there was no need for a 
 petition on the part of the mother, as she already had the custody of the 
 children. 
 
 By R. S. O. In 1887 was passed the Act now R. S. O. c. 137 s. 1, by which R. S. 0. 1877, 
 1887. c. 137. c 130 s. 1, was superseded, and it was enacted as follows : 
 Court may 1. — (1) The High Court or Surrogate Court, or any Judge of either Court, may, 
 make order ui)on application of the mother of an infant (who may so apply without next 
 todv aud ^"*'"."^) ™*'^^ ^^^^ °'^<"' 8* the Court or Judge sees fit regarding the custody of 
 right of ^^^ infant, and the right of access thereto of either parent, having regard to 
 access to ^^^ welfare of the infant, and to the conduct of the parents, and to the wishes 
 infants. as well of the mother as of the father, and may afterwards alter, vary or dis- 
 charge the order on the application of either parent, or, after the death of 
 either parent, or any guardian under the Act, and in every case mav make 
 such order respecting flie costs of the mother and the liability of the father for 
 the same or otnerwise as to costs as the Court or Judge may think just. 
 
 Modifica- 
 tion by 
 R. S. O. 
 1877, c. 130. 
 
 The first sectioi 
 
CUSTODY OF INFANTS. 
 
 66 
 
 ('>) The Court or Judge may ftlHo make order for the maintenance of the Sec. 63,(11.) 
 infant l>v payment by the father thereof, or by payment out of any estate to order aa 
 wliicii the infant is entitled, of such sum or sums of money from time to time to luain- 
 as according to the pecuniary circumstances of the father or the value of the tenauco. 
 estate the Court or .Judge tliinks just and reasonable. 50 V. o. 21, 8. 1. 
 
 Sec. 2 i)rovides (as did also R. S. O. 1877, c 130 s. 4) as follows :— 
 
 2. "No order directing that the mother shall have the custody of or access to 
 an" infant shall be made by virtue of this Act, in favour c)f a mother againut 
 whom a(lult« "y has been established by judgment in an action for criminal con- 
 versation at the suit of her husband against any i)er8on." R. S. O. 1877 c 130 
 .«. 4. 
 
 The first section of this Act is taken from the Imp. Act 45 & 50 V. c. 27, s. 5. 
 
 It will lie noticed that this Act, unlike the previous Act, mentions no age 
 within which the mother may be given tiie custody of her children. In case 
 apiilication is made under the Act the matter is left entirely open for the Judge 
 to deal with tlie infants as may seem best for them : see Ee IViitet), 57 L. T. 
 N. S. 33(>, W. N. 1887, 1«7 ; tikianer v. Skinner, 30 W. R. 912. 
 
 The Act does not affect the right of a father to decide as to the religious 
 educati'/H of his children : sec. 22, and see Jte Hcmdan, 30 W. R. 842. 
 
 Where a father had secreted two of his children, aged 8 and 11, from their 
 mother to prevent their being brought up in the Roman Catholic religion, he 
 ■was on petition of the mother under R. S. 0. 1887, c. 130, directed to disclose the 
 whereabouts of the younger child, and access by the mother was provided for. 
 No order was made as to the other child, who was nearly 12 : Re Keith, 7 P. 
 R. 138. 
 
 The best interests of the children were considered on petitions under the 
 fomier Act and will be under the present Act. In Re Murdoch, P. R. 132, 
 the Court refused under the circumstances to remove a child from its mother's 
 custody, but allowed the father to have access. In Re Scott, 8 P. R. 58, a child 
 was allowed to remain with a stranger, having been originally placed there by 
 the mother, the father being dead, and the mother having married again and 
 being in poor circumstances. See also Re Dickson, 12 P. R. 059. 
 
 Under enactments in England allowing an application by a mother it was 
 held tliat a married woman may i>etition in her own name without naming a 
 next friend : Re (iromn, 7 Hare, 83 ; and this is expressly provided by R. S. O., 
 0. 137, 8. 1 ; or in forma imuperis ; Ek parte Nawkewill, 3 D. M. & G. 110 ; and 
 that the onler may be made ex parte if the necessity of the case requires it : Re 
 Taylor, 11 Sim. 178. 
 
 In exercising its general jurisdiction the conduct of the mother is taken into 
 consideration : Re Taylor, 11 Sim. 178 ; Re Bartlett, 2 Collyer, 661 ; ShiUeto v. 
 Collet, 8 W. R. 683 ; ^e Winxcom, 2 H. & M. 541 ; Re Shaw, referred to in 11 
 Sim. 182-195 ; Re Halliday, 17 Jur. .56. 
 
 As to the custody of illegitimate children : see Re Holshed, 5 P. R. 251 ; Re 
 Brandon, 7 P. R. 347 ; ife Smith, 8 P. R. 23. 
 
 The Court has jurisdiction to summarily order the personal attendance before 
 it of any i)ersons who are supjxjsed to be in a position to give information as to 
 the place of concealment of wards of Court : Rosenberg v. Undo, 48 L. T. N. S. 
 478. 
 
 On a habeas corpus under R. S. O. c. 70, s. 6, the Court may direct evidence 
 to be taken viva voce to examine into the truth of the return : Re Smart, 12 
 P. R. 2. 
 
 R. S. 0. c. 137 8. 13, repealing R. S. 0. 1877, c. 132 ss. 9 and 10, ia as follows :— On death 
 
 13.— (1) On the death of the father of an infant, the mother, if surviving, mother to 
 shall be the guardian of the infant, oither alone, when no guardian has been be guar- 
 appointed by the father, or jointly with any guardian appointed by the dian alone, 
 fatner. or jointly 
 
 J .A. o otbera. 
 
66 
 
 THE JUDICATURE ACT. 
 
 Sec. 53,(13). (2) Where no guardian has been appointed by the father, or if the guardian 
 or guardians ai)i)ointed by the father is, or are, dead, or refuses or refuse to 
 act, the High Court or Surrogate Court, or any .Judge of either Court, may 
 from time to time appoint a guardian or guardians to act jointly with the 
 mother, as such Court or Judge shall see lit. 50 V. c, 21, s. 2. 
 
 Mother 14.— (1) Tlie mother of an infant may, by deed or will, apjwint any prson 
 
 may ap- (,, ixjrsons to be guardian or guardians of tlie infant after the death of herself 
 point Kuar- ^^j^j ^y^^ father of the infant (if the infant lie then unmarried), and where the 
 ta?n cases: guardians are appointed by both parents they shall act jointly. 
 
 (2) The mother of an infai.t may, by deed or will, provisionally nominate 
 some fit iierson or jiersons to act as guardian or guardians of the infant after her 
 death jointly with the father of the infant, and the Court or a Judge, after her 
 death, if it he shown to the satisfaction of the Court or a Judge that the father is 
 for any reason unfitted to be the sole guardian of his children, may confirm 
 the appointment of such guardian or guardians, who shall thereupon be 
 emix)wered to act as aforesaid, or make such other order in respect of the 
 guardianship as the Court or Judge shall think right. 50 V. c. 21, s. 3. 
 
 This Act is in the same terms as Imp. Act 49 & .50 Vict., c. 27. 
 
 Religious As to the father's right to control the religious education of his children, 
 education recognized by the above Act, (sec. 22,) see lie Aijar Kills, 10 Ch. D. 4!), where 
 of infants, the father was held not to have forfeited his right by promising his wife on 
 
 their marriage that their children should be brought up of her religion : see 
 
 also Re Besant, 11 Ch. D. 508. 
 
 In Condon v. Vollmn, 57 L. T. N. S. 154, a child was allowed to be brought 
 up of its mother's religion, where it was maintained by her and the father was 
 indifferent and made opposition onlj^ for the sake of vexing the mother. It 
 was also held that the father's living in adultery was not a relevant fact to the 
 question of his right to control the religious education of his child. 
 
 A Protestant on his marriage with a Roman Catholic agreed that their 
 children should be brought up as Roman Catholics, but a son should when old 
 enough be permitted to change his religion. A boy was born, baptised and 
 brought up a Roman Catholic. The father died intestate only expressing a 
 wish that his son should go to an English Protestant Schmil. It was held that 
 having regard to the indication of intention on the father's part and the 
 present and future benefit of the son, his mother ought to be apixrinted his 
 guardian and he be brought up as a Roman Catholic : Be Clarke, W. N. 1882, 
 135; 31 W. R. 37: 47 L. T. K S. 84. 
 
 Where infants interested in real estate in England, whose father was dead, 
 were living with their mother out of the jurisdiction, and she was one of their 
 testamentary guardians, an order was made at the instance of their two other 
 guardians declaring in what faith they should be educated : Re Montam, 
 28 Ch. D. 82. 
 
 conflictnot ^^* ^^^^'^^^^y ^^ ^^^ matters not hereinbefore particu- 
 
 mentioned, larly mentioned, in which there is any conflict or variance 
 
 between the Rules of Equity and the Rules of the Common 
 
 Law with reference to the same matter, the Rules of Equity 
 
 shall prevail. 44 V. c. 5, s. 17 (10). 
 
 Same as Eng. J. A. 1873, s. 25 (11). 
 
 This sub-section relates to matters of substantive law, not mere practice: 
 Friendly v. Carter, 9 P. R. 41. As to matters of practice, see sees. 42 and 
 110 and Rule 3. 
 
 Examples. The following decisions illustrate this sub-section :— 
 
 The old learning on the subject of "conversion " at law is not imported into 
 the Judicature Act : Stimsun v. Block, 11 Ont. 96, 103. 
 
Tf 
 
 RULES OF LAW. 
 
 67 
 
 Where the terms of a bill of sale are such as to bind after acquired goods in gee. 5^ 
 Euuity, the title of the claimant muHt now prevail as against the execution 
 creditor, under, this sub-section : per Lush, J., W. N. 1875, 203 ; per Archibald, 
 J., W. N. 187(5, 04. 
 
 The rule of E(}uity now prevails that letters of administration, when 
 obtained, relate back to the death, and it is sufficient if a plaintiff suing as 
 administrator qualifies before trial : Trice v. Bobinaon, 16 Ont. 433. 
 
 Where assets have come into possession of the executor and are afterwards 
 lost to the estate, the rule in all Courts now is, that the executor cannot be 
 charged without some wilful default : Job v. Job, Ch. D. 602 ; and see Barber 
 V. .\fackrell, 12 Ch. D. 534. 
 
 Since the Judicature Act a tenant in jxjssession under an agreement for a 
 lease has no longer two estates, one a legal tenancy from year to year and the 
 other an equitable tenancy under the agreement. There is only one Court and 
 the nile of Equity prevails, viz ; that the tenant is in the same position as if he 
 were lessee under a lease granted in terms of the agreement. The landlord 
 cannot distrain by virtue of his legal title if he cannot distrain under the agree- 
 ment: W'aluli V. Lonsdale, 21 Ch. D. {»; and see Lmvther v. Heaver, 41 Ch. D. 
 218. So in actions to re-enter for breach of covenant in a lease the Court will 
 dispose of questions in their equitable rather than their legal aspect in cases 
 where under the former practice the Court of Chancery would have relieved 
 against a forfeiture : Buckley v. Beigle, 8 Ont. 85. 
 
 Where the solicitor of a lessee fraudulently procured from him a memoran- 
 dum of dejxwit of the lease as security for a loan by the solicitor, and upon the 
 security of the lease and memorandum procured a loan from an innocent 
 lender, it was held in an action by lessee against the latter, for the delivery up of 
 the lease, that this section did not apply to enable the defendant to say that he 
 was a purchaser for value without notice, and retain the lease ; James v. Giles, 
 W. N. 1880, 170. 
 
 It has been held in England that where an executor or administrator, after 
 the commencement of a creditor's acticm for administration and before judg- 
 ment, has voluntarily paid any creditor in full, the rule in Equity and not at 
 law must prevail under this sub-section, and he will be held to have made a 
 good payment, and will be allowed it in his accounts, even though he may have 
 had notice of the action before payment : Re Radcliffe, Kurnpean Soc. v. Bad- 
 diffe, 7 Ch. D. 733 ; but quwre whether in Ont. this was the rule in Equity : 
 see R. S. 0. c. 110, s. 32. 
 
 The rule of Equity, in the administration of partnership assets was applied in 
 administering a fund in the Sheriff's hands, and joint estate was applied to 
 joint debts and separate estate to separate debts, to the exclusion of any legal 
 lien acquired by an execution creditor. Equitable rules are, however, only 
 apphed where they would have formerly been applied by a Court of Equity ; 
 e. g., the plea of purchase without notice had no effect in a case under the con- 
 current jurisdiction of Equity where a plaintiff was pursuing a legal title for 
 legal relief : Manners v. Mew, 29 Ch. D. 725, 734. 
 
 See also Ryan v. Fish, 4 Ont. 335 ; Re Hodgson Beckett v. Ramsdale, 55 L. J. 
 Chy. 241, and Trower on the prevalence of Equity. 
 
 54. The several rules of law enacted and declared by buIbb of 
 this Act shall be in force and receive effect in all Courts apply to aii 
 whatsoever in Ontario, so far as the matters to which such *^''"'*^- 
 rules relate shall be respectively cognizable by such Courts. 
 44 V. c. 5, s. 80. 
 
 Taken from Eng. J. A. 1873, s. 91. 
 
 The provision of i?Kfell70, that in an action tried by jury the costs shall follow 
 the event unless the Judge otherwise orders, was considered to be a rule of Law 
 
 f 
 
 
mm: 
 
 68 
 
 Beet. 
 
 ^t 
 
 THE JUDICATUKB ACT. 
 
 60,66. and not one of practice, and therefore under the correHjxmding EngliHh section 
 waB held to Ik- apiilicable to the PaHMage Cotirt of LiveriHKil : h'iiii/ v. lluHeii- 
 wirrOi, 4 Q. B. 1). 371. t/narn', whether uotwithHtandinif thin deciHion it wan 
 not tiie intention of this section to ai>i>ly in all Courts, the Kulen of Law only 
 which are enacted by see. 53: see liiiildimj dint Limn, fti:, v. lliimriKl, 
 19 C. L. J. 2m, and I'ri/i'f v. ('it!/ OJ/km, 10 C^. B. D. rm. Tlu- transfer of this 
 section in the Revision of the Statutes from the end of t le Act to its present 
 position immediately following sec. 53 seems to give some supixirt to tiie latt*t 
 view. 
 
 See also Speers v. Daijfjcrs, 1 Cab. & E. 503. 
 
 Noticetobe 55. — (1) When, in any action or other civil proceeding, 
 feluiste'r of the constitutional validity of any Act of the Parliament of 
 Attoni*oy"'' Canada or of the Legislature of Ontario comes into ques- 
 outarioi/c-*^°'^ the samo shall not be adjudged to be invalid until after 
 foreaiiyAct notice thereof has been served on the Minister of Justice 
 iuvahu '"'^ and the Attorney- General of Ontario, or at their offices 
 respectively. 
 
 (2) The notice in such case shall be entitled in the cause; 
 shall state what the Act or section of an Act is which is in 
 question, and the day on which the case or the said question 
 is to be argued ; and shall give such other particulars as 
 are necessary to shew the constitutional point proposed to 
 be argued. 
 
 (3) The notice shall be served six days before the day of 
 the argument unless a Judge authorizes a shorter notice. 
 
 (4) Upon every such question the said Minister of Justice 
 and the said Attorney-General shall be entitled as of right 
 to be heard, either in person or by counsel, notwithstand- 
 ing that the Crown is not a party to the action or proceeding. 
 46 V. c. 6, 8. 6. 
 
 Abolition 
 of terms. 
 
 SITTINGS AND DISTRIBUTION OF BUSINESS. 
 
 56. The division of the legal year into Terms shall be 
 abolished so far as relates to the administration of justice,(fl) 
 and there shall not {h) be Terms applicable to any sit- 
 ting or business of the High Court, (c) or of any commis- 
 sioners to whom any jurisdiction may be assigned under 
 this Act, or of any Commissioners of Assize ; {d) but in all 
 cases in which, under the law existing prior to the 22nd 
 day of August, 1881, the Terms into which the legal year 
 was divided were used as a measure for determining the 
 time at or within which any act was required to be done, 
 the same may continue to be referred to for the same or 
 
81TTIN08 AND DISTRIBUTION OF BUSINESS. 
 
 e9 
 
 tlu) like purpose, unless and until provision is otherwise Beci. 67,6$. 
 niatle by any lawful authority. 44 V. c. 5, s. 18. 
 
 With tlio t'xcf'ptions nu'iitioiiecl below this clauHP corn'HiMmds with Kng. 
 J. A. 1H7;<, «. 2(1, first part. 
 
 (a) Teniis Hurviv»> as ineaHurcN of time for the purpose of inarkiiiMf tim • ; <'.(j., 
 formerly in the time for making a motion to ni't anide an award : Citlli'.w of 
 i'hrint'x Hi)»pit»l V. Miirliii, '.i C^. B. 1). 2H ; Oilm v. Marrow, 4 Ont. (i4!l ; Kian 
 V. Ktlwdrih, 12 r. U. <)2r) j but see now 52 Vict. c. 13, mm. 4-6. 
 
 The Hervice of notice of motion within the time limited Wo '1 Heem to be 
 mitticient, though the motion itt miule retiirnable after the time: see Sim 'omit 
 V. (hmtieli/, 13 '' ''• 293 ; Smith v. ParkHuk Mininii ('o.,{\ (l B. D. 67, U<[\i< iig 
 HmU'enMil v. Jiuomh, L. R. 17 Ki\. 476 ; 10 Chy. !»2. 
 
 Bj Pide 21(>, sittingH are ap^K1inted which are to be held by the (Queen's 
 Ben'cli and Common Pleas DiviHionH at the same time ami during the same 
 periods as Michaelmas, Hilary and Easter (not Trinity) 'I'erms ; nevertheless. 
 Trinity Tenn still exists as a measure of time : see Kioa v. Kdwurdu, mipra. 
 
 (h) The English section has the words " no longer," instead of the word 
 "not." 
 
 (c) The English section has here the words "or the Court of Apiieal;" the 
 Court of Appeal in Ontario had no "Terms." 
 
 (d) The words "commissioners of assize" are not in the English Act. 
 As to commissions of Assize, etc., see note to sec. 1(50 of this Act. 
 
 (e) The English Act has the additional word "other" hero. 
 
 57. — (1) Subject to Rules of Court, the High Court of sittings of 
 Justice, and the Court of Appeal, and the Judges thereof 
 respectively, or any such commissioners as aforesaid shall 
 have power to sit and act, at any time and at any place, 
 for the transaction of any part of the business of such 
 Courts respectively, or of such Judges or commissioners, 
 or for the discharge of any duty which by any Statute or 
 otherwise, is required to be discharged {a). R. S. 0. 1877, 
 c. 88, s. 15 ; 44 V. c. 5, s. 19. 
 
 (2) Subject to the preceding provision the Divisional where to 
 sittings of the High Court shall be held at the City of * * ' 
 Toronto. R. S. 0. 1877, c. 39, s. 6 ; c. 40, s. 19. 
 
 For " St&tute " the Eng. .1. A. 1873, s. 26, has " Act of Parliament," and at 
 (a) both in the Eng. J. A. and the Ont. .T. A. 1881, are the words, "during or 
 after Tenn." 
 
 5S. The Lieutenant-Governor in Council may from time vacations, 
 to time, upon any report or recommendation of the Council 
 of Judges of the Supreme Court hereinafter mentioned, 
 make, revoke or modify, orders regulating the vacations to 
 be observed by the High Court of Justice and the Court of 
 Appeal, and in the offices of the said Courts respectively ; 
 
 ;n 
 
 I 
 
 
 f * '.I 
 
 Ait ,f 
 
 
jrawippiPP" 
 
 70 
 
 THE JUDICATURE ACT. 
 
 Beci. 69,60. and any Order in Council made pursuant to this section 
 shall, so long as it continues in force, be of the same effect 
 as if it were contained in this Act; and Rules of Court 
 may be made for carrying the same into effect in the same 
 manner as if such Order in Council were part of this Act. 
 44 V. c. 5, s. 20. 
 
 commis- 59, Commissions of assize or any other commissions, 
 absIL" and either general or special, maybe issued, by the proper 
 missions!"' authority{ a) assigning to the persons to be therein named, (/j) 
 the duty of trying and determining within any place or 
 district specially fixed for that purpose by such commission, 
 any causes or matters, or any questions or issues of fact or 
 of law, or partly of fact and partly of law, in any cause or 
 matter, depending in the said High Court ; or the exer- 
 cise of any civil or criminal jurisdiction capable of being 
 exercised by the said High Court ; and any commission 
 so issued shall be of the same validity as if i*^^ were enacted 
 in the body of this Act ; and any commissioner or 
 commissioners shall, when engaged in the exercise of any 
 jurisdiction so assigned to him or them, be deemed to con- 
 stitute a Court of the said High Court. 44 V. c. 5, s. 22. 
 
 (aj The English J. A. 1873, s. 37, gives this authority expressly to Her 
 Majesty. In Canada it has been questioned whether the aut''n)rity belongs 
 under the B. N. A. Act to the (lOvernor-General or the Lieiitenant-trovernor ; 
 the present section provides for the issuing "by the proper authority." A 
 commission in its ordinary form botli constitutes tlie Court and names the 
 •fudges, while under the B. N. A. Act the creation of Courts belongs to the 
 Province, and the appointment of Superior Court Judges belongs to the 
 Dominion : see Rciiina v. Amer, 42 U. C. Q. B. 3!tl. 
 
 (b) The English section limits the apiwintment to "any Judge or Judges of 
 the Hi^h Court or other jiersons usually named in commissions of assize. The 
 Dominion Government is uudcn-stoixl to claim that a Provincial Legislature 
 has no authority to limit the class of persons from which Judges are to be 
 oelected. 
 
 See Eng. J. A. 
 
 Trial at Bar is i 
 
 coirtfo .^^' ^^^ causes and matters in the High Court shall be 
 provide for distributed among the several Divisions and Judges of the 
 tionofbusi-said High Court, in such manner as may from time to 
 °*»*- time be determined by any Rules of Court, or orders of 
 
 transfer, to be made under the authority of this Act. 
 
 44 V. c. 5, s. 23. 
 
 See Eng. J. A. Act, ss. 33 and 42. 
 
 The last part of the original s. 23 of the Ont. J. A. 1881, providing for the 
 marking of documents in a cause or matter with the name of the Division to 
 which the cause or matter is assigned is now embodied in Rule 225. 
 
 All the nroceedings in any action or matter should be taken i, the Division 
 of the High Court to which the action or matter is for the time being attached. 
 
BITTINaS AND DISTRIBUTION OF BUSINESS. 
 
 71 
 
 The setting down of a motion in an action in the Chancery Division to be Bec. 61, 
 heard in another Division was held to be a nullity in Be Christie, Christie v. (2, 3). 
 Christie, 12 T. R. 15. See note to sec. 38, p. 31. 
 
 TTinVi Business to 
 8" be disposed 
 
 ftl._(l) Every action and proceeding in the ^ 
 
 Court and ail business arising out of the same, except as o^p^°^® 
 hereinafter provided, shall, so far as is practicable and con- far Isprac- 
 
 venient, be heard, determined, and disposed of, before a 
 single Judge (a). 
 
 (2) A Judge sitting elsewhere than in a Divisional Court, 
 is to decide all questions coming properly before him, and 
 is not to reserve any case, or any point in a case, for the 
 consideration of a Divisional Court {h). 
 
 (3) In all such cases any Judge sitting in Court shall be 
 deemed to constitute a Court (c). 44 V. c. 5, s. 28. 
 
 See Eng. J. A. 1873, s. 4(5 ; J. A. 187.'), s. 22, and J. A. 1876, s. 17. 
 
 ((() This is the same in efTect as the enactment in the l]iig. J. A. 1876, s. 17 ; 
 and is an extension of the authority previously to Ont. J. A. 1881, possessed in 
 Ontario liy a Judge of the Cf)mmon Law Courts under the Administration of 
 Justice Act, 1874 (R. S. O. 1877, c. 50, s. 281). 
 
 Trial at Bar is not alwlished. See Rule 657 and notes. 
 
 (h) A Judge in England had the power of reserving a case, or any point in a 
 case, to be argued before a Divisional Cfnirt, until the J. A. 1876, s. 17, the 
 effect of which Act and the Rules made under it, was to take away this power. 
 In Chancery there had never been the Common Law j)ractice of a Judge 
 reserving a case, or some point in it, for argument before himself and his brother 
 Judges or any of them. The section in the present Act is in accordance with 
 the probable intention of R. S. O. 1877, c. 50, s. 281. 
 
 In fktm-hnr v. Cdey, 52 L. J. Q. B. 398 ; 48 L. T. N. S. 533, it was held that 
 notwithstanding the first clause of this section a Judge at .Vi.vi Priiis may 
 leave any party to move a Divisional Court for judgment, and that the words 
 "so far as is practicable and convenient" above, should be interpreted to 
 authorize that course. This decision would not seem to be applicable in On- 
 tario as the Imp. Act contains no clause similar to sub-sec. (2) above. 
 
 Where "a special case on the pleadings" had been referred to a Divisional 
 Court in forgetfulness of the al)ove sections, the ai)plication was turned into a 
 motion and heard under Rules 748, 755 and 757 : Till v. Till, 15 Ont. 133. 
 
 A hearingi'n camera may be allowed ii» a projxjr case : see Mellur v. Thomp- 
 S'lii, 31 Ch. D. .55, an application to restrain a solicitor from disclosing com- 
 munications made to him ccmfidentially as such solicitor ; and see 82 L. T. Jour. 
 297, and observations of Lord Fitzgerald in Macdowjall v. Kniaht, 14 App. Cas. 
 206-7. 
 
 (r) The English J. A. 1873, s. 39, last part, is the same. See CoojKr v. 
 (Central Ont. Ry. Co., 4 Ont. 280. 
 
 The ordinary purixwe for which it is necessary or p'lowable to appl}' to the 
 Divisional Court is to reverse or vary a judgment .. j the trial, or for a new trial. 
 
 See Ituks 78!» and 219 ix)s<. 
 
 There is no appeal to a Divisional Court from a single Judge (except under 
 Rule 798, from a judgment at the trial, or by consent under Rule 219. ) Re 
 (lullenw,^ Umnt v. McAlpine, 46 U. C. Q. B. 379; McTieman \. Fra.ser,9 
 P. R. 246. The appeal, if any, is to the Court of Appeal : see s. 37. A hearing 
 
 ticable. 
 
 I 4 
 
72 
 
 Sec. 62, 
 
 (1-6). 
 
 Divisionfll 
 Courts ot 
 the High 
 Court. 
 
 THE JUDICATURE ACT. 
 
 on Further Directions is not to be regarded as a continuation of the trial so 
 as to enable an appeal to be brought to the Divisional Court under Rule 798: 
 see Wansley v. Uriuillmiod, 10 P. R. 233. 
 
 Hide 210 regulates the business of Divisional Courts. 
 
 As to the comparative authority of decisions of a single Judge sitting as the 
 High Court and those of a Divisional Court : see Tancred v. Uelaijoa Bay, etc. 
 f'o.,23Q. B. D. 242. 
 
 63. — (1) All business which may from time to time be 
 so ordered by Rules of Court shall be transacted and dis- 
 posed of by Divisional Courts of the High Court, which 
 shall for that purpose exercise all or any part of the juris- 
 diction of the said High Court. 
 
 (2) Any number 
 the same time. 
 
 of such Divisional Courts may sit at 
 
 (3) A Divisional Court of the High Court shall be con- 
 stituted by two or three, and no more, of the Judges thereof ; 
 and, except when through pressure of business or any other 
 cause it may not conveniently be found practicable, shall 
 be composed of three such Judges (a). 
 
 (4) Every Judge of the High Court shall be qualified 
 and empowered to sit in any of such Divisional Courts. 
 
 (6) But where the Divisional Court is constituted of two 
 Jndges only, such Court shall not heai or adjudicate upon 
 any application against the judgment of either of such 
 Judges (6). 
 
 (6) The President of every such Divisional Court of the 
 High Court shall be the senior Judge of those present, 
 according to the order of their precedence under this Act 
 or otherwise. 44 V. c. 5, s. 29. 
 
 Sub-section (5) has no corresponding provision in the English Acts. In other 
 respects the section corresiwnds in effect with Eng. J. A. 1 873, s. 40. .Section 
 17 of the Eng. J. A, 1876 provided that two Judges and no more should sit 
 unless there were sjiecial reasons for having a larger number. This restriction 
 to two has not been followed in the Ontario Act. 
 
 The three Divisions of the High Court do not necessarily correspond with 
 the Divisional Courts referred to in this section and elsewhere in the Act and 
 Rules. See next two sections. The Divisional Courts are a district organi- 
 zation under the Jud. Act and invested with si>euial functions : Reff. v. IkeiMr, 15 
 Ont. 266. For the business assigned to Divisional Courts see Rule 21i>. 
 
 (a) Where two Judges sit and differ, the old priictice of the Court of 
 Queen's Bench, that the junior Jud^e shall withdraw his judgment, is resort«d 
 to in the Queen's Bench Division in England : AUy.-den. v. Xoyes, 44L. T. 
 801, 809 ; but in Ontario where the motion before the Court is in the nature 
 of an appeal, the judgment or order appealed from is in such a case affirmed. 
 
APPEALS. 
 
 73 
 
 (4) Where a motion against the judc;ment of the C. J. was made before a Sees. 63-6Sl 
 full Court of three Judges, but when judgment was delivered one of the puisne 
 Judires was absent, being engaged in another Court, on a motion for leave to 
 aniHjal, the judgment of the C. J. and the remaining puisne Judge was held to 
 hfi invalid, and therefore there was no judgment which could be appealed 
 gainst: Vochmn v. Bouclwi; 19 C. L. J. 349; 3 C. L. T. 544; 8 Ont. App. 
 ^•i For the subsequent proceedings taken in consequence of this decision, 
 ^."3 C. L. T. 547, and 19 C. L. J. 402. 
 
 63. Divisional Courts shall, as far as may be found ^°J'j^*|*"- 
 practicable and convenient, include one or more Judge or Divisional 
 Judges attached to the particular Division of the said Court 
 to which the cause or matter out of which such business 
 arises has been assigned. 44 V. c. 5, s. 30. 
 
 To the same effect as Eng. J. A. 1873, s. 41. 
 
 «4.— (1) Subject to any Rules of Court, it shall be tlie Ji'dges^t^o 
 duty of every Judge of the High Court who shall not for in business 
 the time being be occupied in the transaction of any busi- mvUion. 
 ness specially assigned to him, or in the business of any 
 other Divisional Court, to take part, if required, in the sit- 
 tings of such Divisional Courts as may from time to time 
 be deemed necessary for the transaction of the business of 
 any of the Divisions of the High Court. 
 
 (2) All such arrangements as may be necessary or pro- 
 per for that purpose, or for constituting or holding any 
 Divisional Courts of the said High Court for any other pur- 
 pose authorized by this Act, and also for the proper tran- 
 saction of that part of the business of the said Divisions 
 respectively which ought to be transacted by one or more 
 Judges not sitting in a Divisional Court, shall be made 
 from time to time under the direction and superintende* .ce 
 of the Judges of the said High Court ; 
 
 (3) And in case of di£ference among them, in such man- 
 ner as a majority of the said Judges shall determine. 44 V. 
 c. 5, s. 81. 
 
 This section corresironds with the Eng. J- A. 1873, s. 41, except that the 
 latter is confined to the Queen's Bench, Common Pleas and Exchequer Divi- 
 sions, omitting the Chancery Division ; and except also that in case of diflfer- 
 ence among the Judges, the English section requires the concurrence of the 
 Lord Chief Justice of England in the decision of the majority in order to give 
 it effect. 
 
 APPEALS. 
 
 65. No order made by the High Court or any Judge orders not 
 thereof, by the consent of parties, or as to costs only which appeal! *** 
 
 1 ^^ 
 
74 
 
 THE JUDICATURK ACT. 
 
 See. 66. 
 
 ■.i- 4Uv 
 
 by law are left to the discretion of the Court, shall be sub- 
 ject to any appeal, except by leave of the Court or Judge 
 making such order. 44 V. c. 5, s. 32. 
 
 Identical with Enj?. J. A. 1873, s. 49. 
 
 The rule laid down in this section had always been the rule in the Court of 
 Chancery : see Daniel's Practice, 5th ed., pp. 837, 1329, 1332, and cases there 
 cited. 
 
 An interpleader matter tried summarily by consent by a .Tudge in Chambers 
 under R. S. O. , 1877, c. 54, s. 5, was formerly within this section : Jidd v, 
 Winsor, W. N. 1878, 88 ; riirner v. Jiridi/eU, 9 Q. B, D. 55 ; Lyon v. Morm, 
 
 19 Q. B. D. 139 ; but now Rule 1171, which has superseded the above sec. 5, 
 provides for an ai)ijeal. 
 
 A judgment in which part of the terms have been inserted at the suggestion 
 of a party in struggling for the best possible terms, in a decision adverse to him, 
 cannot be regarded as a consent judgment : Sweeney v. Siveeney, 16 Ont. !)2. 
 
 Appeals as By Rule 1170 the right which certain classes of persons, such as trustees, 
 
 to costs. mortgagees, etc., had in Equity to costs (as being given them by contriust) out 
 
 of a particular estate or fund, is preserved. Such costs are not in the discretion 
 
 of the Court, and are therefore a proper subject of appeal if no other restriction 
 
 on the right of appeal applies e.g., sees. 00-08. (See notes to Rule 1170.) 
 
 Where a settlement is set aside in an action by the settlor, the trustee has no 
 claim to his costs as a matter of right, there being no contract in existence, and 
 therefore where costs were given against him, it was held that, under this sec- 
 tion, no appeal lay ; hutton v. Thompsim, 23 Ch. D. 278. 
 
 Where a Judge decided that a defendant had committed a breach of an 
 injunction, and no committal being pressed for on the other side, simply 
 ordered the defendant to pay the costs, it was held that the order was not one 
 as to costs only in the discretion of the Court, within the meaning of this sec- 
 tion, and that an apijeal lay : Witt v. Vorcirran, 2 Ch. D. 09 : followed in Stevens 
 V. Metropnlitan Ry. , 2i) Ch. D. GO. On the other hand, where a Judge, being 
 asked to commit for contempt made an oi-der, within his power but of a dif- 
 ferent kind, viz. : to deliver a deed within a certain time and disjwsed of the 
 costs : Krehl v. Burrell, W. N. 1883, 177, and in another instance refused to 
 commit, and made the costs, costs in the cause : Aahwiirth v. Outmm, 5 
 Ch. D. 943, it was held that no appeal lay. See also Jarmain v. Chutterton, 
 
 20 Ch. D. 493. 
 
 The effect of this section is that a mortgagee may ap])eal from an order 
 depriving him of costs out of the estate for misconduct (because if there was 
 no misconduct the costs are not in the discretion of the Court under Rule 1170) 
 but a mortgagor cannot appeal from an order negativing misconduct and allow- 
 ing a mortgagee costs out of the estate (because misconduct if proved would bring 
 the costs within the discretion of the Judge, and even thougn he does not exer- 
 cise it there would be no api^eal) : Charles v. Jones, 33 Ch. D. 80. 
 
 Cases 
 where ap- 
 peals as to 
 costs not 
 permitted. 
 
 The following are instances of costs in the discretion of the Court and there- 
 fore within this section : — 
 
 Costs of an interpleader issue disiKJsed of in Chambers : Hartman v. Foskr, 
 8 Q. B. D. 82 ; costs ordered in Chambers to be jiaid by a solicitor {Mjrsonally 
 by reason of misconduct or negligence but not otherwise : Re Brndfm, 
 15 Q. B. D. 636, overruling 11 Q. B. I). 373 ; costs given over to a defendant 
 against a third party : Hirrnby v. Vardwell, 8 Q. B. D. 329 ; costs refused to a 
 third party : TomUnsmi v. yorthern Ry., 11 P. R. 526; costs ^ven or refused 
 to a plaintiff on confessing a defence under Rule 440 : Per/cms v. Jiere.iford, 
 47 L. T. N. S. 515 ; and costs of insiiection of projierty under Rule 1135 : 
 Mitchell v. Itarley, 10 Q. B. D. 457 ; costs refused to a mortgagee who has 
 unreasonably instituted or carried on, or resisted, proceedings : SmaUpiece v. 
 Lee, 20 Sol. J. 61, and costs on dismissal of an action for want of prosecution : 
 Snelling v. Pulling, 29 Ch. D. 85. 
 
APPEALS. 
 
 76 
 
 Costs ordered to be paid personally by a solicitor are not in the discretion of Beo. 66. 
 the Court, in the absence of misconduct or neffligence : Re Brae^ord, 15 Q. B. D. 
 635, overruling 11 Q. B. D. 373. 
 
 In a suit to settle the priorities between incumbrancers, B., one of the defend- 
 ants was ordered to pay the costs of the plaintiff and hit. co-defendant. B. 
 apiie'aied, and the decision being affirmed on the merits the Court refused to 
 vary the order as to costs, as that would be practically allowing an api)eal for 
 costs : Harpham v. Shacklock, 19 Ch. D. 215 ; Harris v. Aaron, 4 Ch. D. 749. 
 
 Leave to ajnieal on a question of costs should be asked for when the judg- 
 ment in question is given : May v. Thompson, W. N. 1882, 53. 
 
 The following are instances in which appeals involving questions of prin- Cases 
 finle on the subject of costs have been pennitted : where ap- 
 
 '''• "J ' ^ peals as to 
 
 Wliere the question was the right of a claimant in interpleader proceedings costs per- 
 to recover from the execution creditor the charges of the Sheriff as costs : mitted. 
 Ui'inhnan v. Blnke, 19 Q. B. D. 77 ; where costs were directed to be first paid 
 out of a fund, and then various incumbrancers in order of priority, and the fund, 
 after payment of costs, was not sufficient to pay the first incumbrancer, who 
 iiupealed : Jiilinstime v. Cox, 19 Ch. D. 17 ; where an order imiwsed, as a condi- 
 tion of a new trial, the i)ayment within a certain time of the costs of the first 
 trial: MelropnUtaii Asylum IHstrict v. IliU, 5 Ai)p. Cas. 582; where at the 
 trial of an action for the infringement of a copyright of a novel, it apjieared 
 that the defendant before trial discontinued the use of the title of the novel 
 objected to, and therefore the only order made was that defendant pay the 
 costs of the action : Dicks v. Yates, 18 Ch. D. 70. 
 
 On appeals, where allowed on questions of costs in the discretion of the Court, 
 the Api)ellate Court ought to have the same regard to the discretion of the 
 Judge as in other cases in which liis discretion is subject to review, and it 
 ought not to interfere unless there has been a manifest disregard of principle 
 or misapprehension of facts : per Bagtjallay, J.L., in Re iJilbert, Gilbert v. 
 Huddlestme, 28 Ch. D. .549. 
 
 An appeal lies from the decision of a Judge as to the taxation of costs on ♦■■he 
 higher or lower scale, but the Court will not interfere unless he has proceeded 
 uixin a wrong principle, or made a manifest slip : Re Terrell, 22 Ch. D. 473. 
 See also as to charges the allowance of which is in the discretion of the taxing 
 officer: McOannon v. Clark; 9 P. R. .5.5.5. 
 
 Where ujxm an interlocutory application the Judge has based his decision 
 uix)n the merits of the whole case, the Court of Appeal will decide the 
 question of costs both below and in a])peal : Wilkinson v. Hull, 30 W. R. 617 ; 
 4G L. T. N. S. 455. 
 
 An appeal lies from discretionary orders, but the Court does rot in general Appeals 
 interfere, though it may disapprove, unless in a strong case or the discretion from dis- 
 was exercised on a ^vrong principle: see (Mdiny v. Wharton, 1 Q. B. D. 374 ; cretionary 
 Watsmi v. Rodwell, 3 Ch. D. 380 ; Ifuijr/ons v. Tweed, 10 Ch. D. 359, cases o™e'8. 
 respecting the striking out of pleadings ; Bi/rd v. Mann, 7 Ch. D. 28(), 287 ; 
 Lmrd v. Brings, KJ Ch. D. 003; respecting allowance of amendments : ^mtidell 
 V, Birminijtun Syndicate, 3 Ch. D. 127 ; Orinerod v. Todmimien, 8 Q. B. D. 664, 
 respecting the mode of trial; Papayanni v. Coutpas, W. N. 1880, 109; 
 W'ullin^fitrd v. Mutaul Soc, 5 Ajjp. Cas. 685, 709, as to allowing a defendant 
 to defend on a motion under Ride 739. See also Jarmain v. Chatterton, 20 Ch. 
 D. 493. 
 
 
 66. In any action respecting property or civil rights Limitation 
 whether for damages or for specific relief, no appeal shall lie whe?e** 
 from the judgment or order of any Divisional Court orS^rmJt 
 Judge of the High Court to the Court of Appeal without the ||«««* 
 special leave of the Judge or Divisional Court whose judg- 
 ment or order is in question, or of the Court of Appeal 
 
7G THE JUDICATURE ACT. 
 
 See- «7- unless the title to real estate or some interest therein or 
 the validity of a patent is affected ; or unless the matter in 
 controversy on the appeal exceeds the sum or value of 
 $200, exclusive of costs ; or unless the matter in question 
 relates to the taking of an annual or other rent, customary 
 or other duty or fee, or a like demand of a general or public 
 nature affecting future rights. 44 V. c. 6, s. 83 ; 48 Y. 
 c. 13, s. 7. 
 
 These restrictions on apjieals are not in the English Acts. 
 
 The test as to determining the matter in controversy on an appeal was defined 
 in Macfarlanc v. Ledairc, 15 Moo, P. C. C. 181. The judgment is to Ije 
 looked at as it affects the interest of the party who is prejudiced by it. This 
 test has been recognized as the correct one by the .Tud. Com littee of the 
 Privy Council which has accordingly detennined that on ar appeal by a 
 defendant, the projier measure of value for detennining the question of the right 
 to apiieal is the amount recovered in the action, not the amount claimed by the 
 plaintiff in his pleadings : Allan v. Pmtt, 59 L. T. N. S. G74. 
 
 In Jtiyce v. Hart, 1 S. C. R. 321 (which seems to decide the contrary, and 
 where Macfarlane v. Leclaire was referred to), the plaintiff claimed 82,000 and 
 only recovered SIOO. The defendant was held entitled to apiKjal, but the case 
 was under 38 V. c. 11, s. 17, which prohibits apiteals where less than 82,000 
 is in dispute, and it was considered that the amount claimed, as the amount in 
 dispute m the case, should be looked at, not the amount of the judgment. 
 
 See also O'Donohue v. Whitty, 9 P. R. 361, where bills of costs amounting to 
 $250.10 were, on taxation, reduced to $187.10, and the client desired to appeal; 
 the Court held, following Macfarlane v. Lecluirc, that the matter in controversy 
 was whether the apiwUant was liable to pay as much as $187. 10. The Divisional 
 Court in that case subsequently granted leave to appeal, as the case involved the 
 construction of clause 14 of the form appended to R. S. O. c. 107, a question of 
 general interest and affecting solicitors at large and other parties besides the 
 parties to the litigation : S. C. 19 C. L. .J. 9. 
 
 Where leave to appeal is necessary it should be applied for, if not when the 
 judgment was given, at any rate within the three months mentioned in sec. 
 71 : see McCrae v. White, 9 P. R. 288 ; Mai/ v. Thompson, W. N., 1882, 5? 
 
 Limitation 
 
 of appeal 
 
 where 
 
 amount 
 
 does not 
 
 exceed 
 
 »500. 
 
 -■-'I 
 iiHS 
 
 the 
 
 W7' In any -iction respecting property or ci'^ 
 whether for damages or for specific relief, in case ij. 
 been no difference of opinion among the Juolgtt 
 Divisional Court as to any order of such Court, or whereon 
 a motion to set aside or discharge a rule, order, or decision 
 of a Judge, the order of the Divisional Court did not sub- 
 stantially vary the rule, order, or decision moved against, 
 no appeal shall lie from the order of the Divisional Court 
 of the High Court to the Court of Appeal without such 
 leave as aforesaid, unless the title to real estate or some 
 interest therein or the validity of a patent is affected ; or 
 unless the matter in controversy on the appeal exceeds the 
 sum or value of $500, exclusive of costs ; or unless the 
 matter in question relates to the taking of an annual or 
 other rent, customary or other duty or fee, or a like demand 
 
 of a general o 
 c. 5, s. 34 ; 4i 
 
 These restrictioi 
 As to the propel 
 to sec. GO. 
 
 Where the amou 
 was alleged that tl 
 from, affected the i 
 the decision in th 
 property and then 
 appeal : Beati/ v. £ 
 
 See also Batldin 
 tell I'lve. Loan Co. 
 
 In Armstroncf \. j 
 leave to apjieaj wa* 
 " the title to real e 
 
 6». There i 
 any interlocutc 
 bers, in case 
 there would ha 
 application to 
 appeal to the C 
 in case prior t( 
 would have bee 
 to the Court of 
 to what orders, 
 determined by 
 
 {a) What follows i 
 part of the section is 
 ths Ont. Jud. Act, i 
 1!!87, c. 38, s. 18, ant 
 
 An order over-ruli 
 SlfHtoH, 8 Ch. D. 31 
 
 The decision of tht 
 thereupon to make 1 
 faddimjUm, 5 6. B. 
 where it was held thi 
 final order, unless thi 
 the entering of final . 
 
 The following have 
 case be tried by jurj 
 for a new trial: High 
 rule for a new trial 
 award to an arbitraf 
 the trial of an intei 
 order for final judgm. 
 30. P. D. 67;an o 
 Mommi, 2 S. C. R ■ 
 not being further pro 
 the judgment of a Di 
 
APPEXS. 
 
 77 
 
 of a general or public nature affecting future rights. 44 V. Bee. es. 
 c. 5, s. 34 ; 48 V. c. 13, s. 7. 
 
 These restrictions on apiieals are not in the English Act. * ', 
 
 As to the proper measure of value to determine the right to appeal, see notes 
 to sec. CO. 
 
 Where the amount involved in an interpleader issue was under $500, but it 
 was alleged that the decision of the Divisional Court, desired to be apiwaled 
 from, affected the right to other proinrty amounting to S2,000, it was held that 
 the decision in this matter was not conclusive as to the right to the other 
 property and therefore there was no sufficient ground for granting leave to 
 appeal : Beaty v. Bryce., 19 C. L. J. 9. 
 
 See also Baddiii v. Sutherland, 20 C. L. J. 146 ; 4 C. L. T. 205 ; and Hamil- 
 tun I'm: Limn Co. v. Dumble, 20 C. L. J. 147 ; 4 C. L. T. 205. 
 
 In Armntniiif/ v. Fan; (before Proudfoot, J., 3 June 1884) it was held that no 
 leave to api^eal was necessary in an action to enforce a vendor's lien for $160 as 
 " the title to real estate " was affected thereby. 
 
 6>*. There shall be no appeal to a Divisional Court from J^P^f^jg,. 
 any interlocutory order, whether made in Court or Cham- locutory 
 bers, in case prior to 2'lte Ontario Judicature Act, 1881, °^'^^'^- 
 there would have been no relief from a like order by an 
 application to a Superior Court ; and there shall be no 
 appeal to the Court of Appeal from any interlocutory order 
 in case prior to The Ontario Judicature Act, 1881, there 
 would have been no relief from a like order by an appeal 
 to the Court of Appeal (a). Any doubt which may arise as 
 to what orders, or judgments, are interlocutory, shall be 
 determined by the Court of Appeal. 44 V. c. 5, s. 35. 
 
 («) What follows is taken from the English section referred to. The former 
 part of the section is not in the English Act. For the cases in which, before 
 th-d Ont. Jud. Act, there was an appeal to the Court of Appeal, see R. S. O. 
 1887, c. 38, 8. 18, and Whitinr/ v. Hovey, 12 Ont. App. 119. 
 
 An order over-ruling a demurrer is not an interlocutory order : Trmoell v. 
 ShmtoH, 8 Ch. D. 318. 
 
 The decision of the Court upon a special case stated by an arbitrator who is 
 thereupon to make his awara is an interlocutory order : Collins v. Vestry of 
 Paddimjtim, 5 Q. B. D. 368. See also Sherbronke v. Tuffnell, 9 Q. B. D. 621, 
 where it was held that the decision upon the special case must be treated as a 
 final order, unless the decision of the Court could not, in any event, necessitate 
 the entering of final judgment. 
 
 The following have been held to be interlocutory orders : — An order that a 
 case be tried by jury : Swindell v. Birmingham, 3 Ch. D. 127 ; a rule absolute 
 for a new trial : Higliton v. Treheme, 48 L. J. E.\. 167 ; an order discharging a 
 rule for a new trial : IVilks v. Judge, W. N., 1880, 98 ; a refusal to remit an 
 award to an arbitrator : Me Delagoa Bay Ry., etc., 2>1 W. R. 578 ; an order on 
 the trial of an interpleader issue : McAndrew v. Barker, 7 Ch. D. 701 ; an 
 order for final judgment under Rule 739 : Standard Discount Co. v. La Orange, 
 3 C. P. D. 67 ; an order setting aside a demurrer as frivolous : Kandick v. 
 Morrimn, 2 S. C. R. 14 ; an order providing for defendant's costs, the action 
 not being further proceeded with : Re Lewis, Lewis v. Williams, 31 Ch. D. 623; 
 the judgment of a Div. Court affirming the judgment of a County Court in an 
 interpleader issue : Hughes v. Little, 18 O. B. D. 32, reversing 17 Q. B. D. 204. 
 The following ha8 been held to be final :— A judgment in a foreclosure suit : 
 SniUh V. Dames, 65 L. J. Chy. 496, 54 L. T. N. S. 478. 
 
 

 78 
 
 THE JUDI(i\TUBE ACT. 
 
 til 
 
 Sees. 69,70. Senible, an order by a Judge in Court, directing the execution by defendants 
 (mortgagees) of a reconveyance or discharge directed by a previous judgment, 
 18 not in its nature interlocutory. But if interlocutory it would be appealable 
 under this sec. : Bull v. S. British, etc., Co., 12 P. R. 284. 
 
 See generally as to the distinction between final and interlocutory orders : 
 White w. Witt, 5 Ch. D. 580, 591; Pheysey v. Phemey, 12 Ch. D. 305, 307: 
 Whiting v. Hovey, 12 Ont. App. 119 ; Hateky v. Merchants Despatch Co. , ih. 640. 
 
 Discharg- 
 ing orders 
 made by a 
 single 
 Judge. 
 
 i'a 
 
 69. Save as aforesaid, every rule, order, or decision 
 made by a Judge of the said High Court in chambers (a), 
 may be set aside or discharged upon notice by any Divi- 
 sional Court ; and no further appeal shall lie to the Court 
 of Appeal from the Divisional Court unless by special leave 
 of the said Court or of the Court of Appeal. 44 V. c. 5, 
 s. 86 ; 49 V. c. 16, s. 39 ; 50 V. c. 8, Sched. 
 
 This section varies from section 50 of English J. A. 1873, which is as follows: 
 " Every order made by a Judge of the said High Court in Chambers, except 
 orders made in the exercise of such discretion as aforesaid, may be set aside or 
 discharged ui)on notice, by any Divisional Court or by the Judge sitting in 
 Court, according to the course and practice of the Division of the High Court 
 to which the particular cause or matter in which such order is made, maybe 
 assigned ; and no api)eal shall lie from any such order to set aside or disoharge 
 which no such motion has been made, unless by special leave of the Judge by 
 whom such order was made, or of the Court of Appeal." 
 
 (a) The Ont. Jud. Act, 1881, had here the words "except orders made in the 
 exercise of such discretion as by law belonged to him," (as to which see Vonme 
 v. C. P. B., 12 Ont. App. 748). These words were struck out by 49 V. c. 16, 
 s. 39. An appeal thus hes from a discretionary order, but the amendment has 
 not affected the rule that in such cases a very strong case must be made out to 
 induce the Court to reverse the order : Powell v. Peck, 12 P. R. 34. See also 
 note to sec. 65. 
 
 Leave to appeal where necessary should in general be asked for when the 
 judgment complained of is given : May v. Thompson, W. N. 1882, 53. 
 
 All parties should be represented on an application for special leave : Dmmti 
 v. Swnerville, 56 L. T. N. S. 424. 
 
 feomdeci- '^^' ^*^® ^^ aforesaid and subject to the other provi- 
 sion of a sions of this Act, any [judgment,] rule, order or decision 
 
 courTOTft [of a Divisional Court, or] of a Judge in Court, may be 
 St.'" appealed against to the Court of Appeal. E. S. 0. 1877, 
 c. 38, 8. 18; 44 V. c. 5, ss. 13,37. 
 
 See Eng. J. A. 1873, ss. 18, 19, 50. 
 
 The words in brackets were inserted on the Revision of the Statutes in 1887. 
 
 In England an appeal lies from any judgment or order of the High Court or 
 a Judge thereof, save that an order made oy a Judge in Chambers must first 
 be moved against before a Divisional Court unless by special leave : see Dav 
 ton v. Fox, 14 Q, B. D. 377 ; Bobinson v. Tucker, ib. 372 ; ex. p. Dawet Bt 
 Moon, 34 W. R. 752; Be Hall v. Bailway Commissioners, 54 L. T. N. S. 713; 
 Lister v. Wood, 37 W. R. 738 ; Kay v. Briggs, 60 L. T. N. S. 775. The 69th 
 section of the present Act regulates appeals from a Judge's order made in 
 Chambers. 
 
 Qiuere whether an appeal may be had from an order obtained by default in 
 appearing to oppose it : seoife Morris, ex. p. StreeUr, 19 Ch. D. 216 ; Walker'i. 
 
APPEALS. 
 
 79 
 
 Btidden, 5 Q. B. D. 267 ; AUum v. Dickemon, 30 W. R. 930. An appeal was gea 7L 
 ijennitted from a refusal to amend ; Laird v. Briggs, 10 Ch, D. 663. 
 
 As to aijpealing from a refusal to commit for contempt ; see Jarman v. Chat- 
 terton 20 Ch. I). 493 ; Aihworth v. Outram, 5 Ch. D. 943 ; Debenham v. Ward- 
 "oprr,' 48 L. T. N. S. 235 ; Krehl v. Burrdl, W. N. 1883, 177. 
 
 A party in contempt may appeal from the order putting him in contempt : 
 McGregor v. McDonald, 7 C. L. T. 20. 
 
 Quffre whether an appeal lies to the Court of Appeal from the decision uix)n 
 the trial of an interpleader issue : see Whiting v. Uovey, 12 Ont. App, 119, 
 where the Court was divided in opinion. 
 
 One of two or more plaintiffs, (Beckett v. Attwood, 18 Ch. D. 54), or counter- 
 claiming defendants (Hester v. Hester, 71 L. T. Jour. 153), where the claim or 
 counter-claim respectively is dismissed, may appeal, where the others refuse to 
 join, they being made resiwndents. 
 
 As to whether a party not appealing can obtain relief on an appeal by 
 another party : see Black v. Black, 9 Gr. 413 ; 2 E. & A. 419 ; Sampson v. 
 McArthur, 8 Gr. 84; Topping v. Joseph, 1 E. & A. 305, 322; Kent v. Free- 
 hold, etc., L. R. 3 Chy. 493 ; Vaughan v. HaUiday, L. R. 9 Chy. 561 ; Gahert 
 V. Jarvis, 1(1 Gr. 275, 279 ; Saffron Waldron Benefit Co. v. Rayner, 14 Ch. D. 
 40(), 419 ; Dilke v. Dour/las, 5 Ont. App. 63 ; Peterkin v. McFarlane, 6 Ont. 
 App. 254 ; Re Gabourie, 12 P. R. 252 ; Esdaile v. Payne, 59 L. T. N. S. 804 ; 
 40 Ch. D. 520. 
 
 Leave to appeal may be given to a jierson interested, but not a party : Re 
 Markham, 1(5 Ch. D. 1 ; but only where his interest is such that he might 
 have been made a party by service : Crawcour v. Salter, 30 W. R, 329; see also 
 Langtry v. Dumaulin, 11 Ont. App. 544 ; Wood v. Madras, 23 Ch. D. 248 ; 
 Wahon v. Cave, 17 Ch. D. 19 : Re Clagqett, 30 W. R. 374 ; ex. p. Tapper, 
 12 Ch. D. 308 ; ifc Youngs, Doggett v. Revett, 33 W. R. 880 ; 53 L. T. N. S. 
 682. 
 
 R. S. 0. 1877, c. 38, s. 18 (3), which provided that there should be no appeal 
 in cases where a new trial is granted or refused upon matter of discretion only, 
 is now repealed by R. S. O. 1887, an appeal in such case will be governed by 
 the general rule as to appeals from discretionary orders. See note to sec. 65. 
 The above mentioned sub-sec. 18 (3) was held to apply only where an appeal 
 was brought from a judgment, in which a discretion had been exercised : 
 Moore v. Connecticut Mutual, 6 App. Cas. 644. 
 
 71. No appeal to the Court of Appeal shall be allowed no appeal 
 unless notice thereof is given in writing to the opposite per^notSfe* 
 party and to the Registrar of the Division in which the fty^giveS'' 
 proceedings are filed, within one month after the judgment 
 complained of, or within such further time as the High 
 Court, or a Judge thereof, may allow ; nor unless within 
 three months after the judgment complained of or within 
 such further time as the Court or Judge aforesaid may 
 allow, the appellant gives proper security to the extent of 
 $400 to the satisfaction of the said Court or a Judge, that 
 he will effectually prosecute his appeal, and pay such costs 
 and damages as may be awarded in case the judgment 
 appealed from is in whole or in part affirmed. 44 Y. 
 c. 5, 8. 38. 
 
 , This section places an additional limitation upon the right to appeal without 
 interfering with the limit of a year imposed by ss. 73-75 : see Workman v. B(M, 
 9 P. R. 160, where this enactment was held to be not retrospective. 
 
80 
 
 THE JUDICATURE ACT. 
 
 Sec. 71. 
 
 See further notes to Rule 803 it geq. 
 
 Vacation 
 
 Notice of Notice of Appeal.— Formerly notice was required to Ixi given to the Regig. 
 appeal. trar of tlie Court of Apical. This is not now necessary. The notice to the 
 Registrar of the Court appealed from must be filed. 
 
 When a judgment is affirmed V)y a Divisional Court qwere whether the time 
 for ai>i)ealing runs from the date of the original judginent. As an appeal lies 
 from either the .Judge of first instance, or from a Divisional Court (see sec. 70), 
 it would seem just and reasonable that, where an intermediate appeal to a 
 Divisional Court is allowed, tlie time for ap|)ealing slundd nm from its deci- 
 sion : see, however, McFtirlaiie v. Dickxon, 2 Ch. Ch. 38 ; Bervier v. Morn- 
 innton, (} Jur. N. S. 1123 ; Tiihr v. Wibb, 3 Ch. Ch. 33 ; Duff v. Ihirrett, 
 ib. 318. 
 
 In a case where leave to anjjeal is necessary under sees. (!.'), (5(5 or (57, and the 
 api)ellant is prompt in ai)i)lying for leave, the nionth for delivering notice of 
 ftl>j)eal will be computed from the date the leave is granted : McBar v. 'Vhik, 
 i) P. R. 288. 
 
 Vacation was in Wilbii v. StnmUtrd, 10 P. R. 34, assumed to lie not excepted 
 in the computation of tlie time for giving notice of ap|>eal under this section. 
 Tiie then Order (57) of the Court of Apiwal on the subject only provided that 
 vacation should not be reckoned in the computation of time appointed liy the 
 Orders of tlie Court of Api)eal. Xotiiiiig was provided in regard to time 
 limited by a statute. The present Rule 484 seems also only to provide for cases 
 where time is limited by the Rules. 
 
 Tlie form of the notice which is prescribed by Ride 803 will be found in the 
 App. as Fonn No. 41. 
 
 The retainer of a solicitor continues after judginent, so as to make service of 
 notice of apjieal on him good service on the client, until the client takes proper 
 steps to inform his opponent that he has withdrawn his authority : Ladii de 
 hi Pole v. Dick, 2i) Ch. D. 351. 
 
 The notice of appeal must be a formal notice ; the mere communication, 
 verbal or otherwise, by an unsuccessful party to his opponent of his intention 
 to appeal is not sufficient notice of ap])eal : In re Blifthe v. Youwi, 13 
 Ch. D. 416 ; Re New Cullao Co., 23. Ch. D. 484 ; see Kettlewe'll v. Watson, W. N. 
 1883, 102. 
 
 Where some of several defendants api^eal, notice of a])t>eal need not be 
 served on their co-defendants, even though relief over is claimed against them 
 by the resiwndent : Freed v. Orr, (5 Ont. App. 090. It is sufficient for the 
 resiwndent claiming relief, to serve the non-aiJjiealing defendants with the 
 reasons against the api^eal, a coi)y of the apiieal book, and notice of the hearing 
 of the appeal : Ib. ; and see Rule 828. 
 
 The language of this sectio . is very similar to that of Con. Stat. U. C. c. 13, 
 8. 25, under which it was held that the mere statement of an unexplained 
 oversight on the part of a solicitor was an insufficient ground for extending the 
 time for giving notice of apiieal, though it might be otherwise if an imiwrtant 
 question of law were involved, as to which there was a conflict between the 
 Courts : Gordon v. G. W. R., 6 P. R. 300. 
 
 Where the notice was served on the last day after office hours, the notice 
 was allowed, but the Court doubted whether the section requiring notice 
 applied in that particular case : Rose v. Hiekey, 7 P. R. 390 ; and where notice 
 had been served in due time on the resjwndent, but, through the negligence of 
 a clerk of the appellant's solicitor, notice had not been served on the Registrar 
 of the Court appealed from, notice was allowed to be served on i)aynient of 
 costs : Re Laios, Laxos v. Laws, 9 P. R. 72 ; and see Re Crosby, Mums v. 
 Burnj 34 Ch. D. 664; but where nothing was done within the 'time, and no 
 sufficient special circumstances were shewn, leave was refused : Miller v. 
 Brown, 9 P. R. 542. In England a delay of three days beyond the prescribed 
 time in delivering notice to the officer has been held fatal to the right of 
 appeal : Ex parte Lamb, 45 L. T. N. S. 639, and see Ex parte Lvon, ib. 768; 
 Re Blyth «fc Young, 13 Ch. D. 416; and Wright v. Leys, 10 P. R. 354. 
 
 Xee also tJie case 
 
 Form. 
 
 Service. 
 
 Notice 
 must be 
 formal 
 notice. 
 
 Co-defen- 
 dants.when 
 they need 
 not be 
 served. 
 
 Notice, 
 when al- 
 lowed to be 
 served 
 after time 
 has 
 elapsed. 
 
APPEALS. 
 
 81 
 
 Mee ttlmi Hh> CHHeH infrii it^latiiig to ai»i>licati(mH for lea\ ' to a|>iM<al. 
 
 Dvv* fl X« 
 
 Notice of 
 appeal not 
 necesBary 
 tn give 
 Court juris- 
 diction. 
 
 wiis wrvi'il, liiit wan not followed uu by giving security, amotion to clismiss the 
 iipneal wnx ivfuHt'd : Smith v. Smith, 11 P. R. «. 
 
 I 'I 
 
 Leave to Appeal- In giving leave or extending time, there w a difTerence Leave to 
 iKtwci'ii aiijilifationH Ix'fore and after judgment. In the former case, leave \» appeal. 
 leiulilv grunted unless the oiJjHisite jiart.y is injured in some respect for which 
 paviiit'iit of costs cannot comi)en8ate him ; but in the latter case after the 
 jiction iirts been once tried and jud^pient given, the jiarty in whose favour the 
 'iudgineiit is, has a vested right in it of which he is not to he dejirived except 
 under special circumstances : see ('ollinn v. Vrntrii of Pitddimjtmi, .5 Q. 13. D. 
 "M; Miller v. Bnnvii, II P. R. M2; Shuprv Sliu/u; 4 C. L. T. 129; CVrtiV/ v. 
 I'hiliipx, 7 Ch. U. 24!t ; McAwlrnv v. Harkvr, 7 Ch. D. 701 : see Be Ambrose 
 Liikf Till, mill Capfff Co., Ttiii/oi-'n eauc, 8 Ch. D. ()43 : Be Sceptre Liccnutd 
 VicliKilhr.i Fire Insiirinicc Co., ex parte How, W. N., 1870, 0. 
 
 Nil precise rules can be laid down as to what constitute special circumstances 
 sufficient to call for the exercise of the discretion of the Court : see Carter v. 
 Stubbn, (i (I. B. D. IK) ; Be Manchester Economic B. S., 24 Ch. D. 488 ; Wilby\. 
 Stmuliird, etc., 10 P. R. 34. 
 
 (ienerally speaking, an extension will lie granted where justice requires it : 
 /(f (hilmurie, Cdnei/ v. (iahourie, 12 P. R. 252 ; but two particular lines of cases 
 have been noticed in which leave may be given, Ist, where there is unavoidable 
 accident wliereby a i)arty is unable to bring on his appeal ; and 2nd, where some 
 equity is raised on behalf of the appellant from the conduct of the other side : 
 hiniitry V. iJumoulin, 4 C. L. T. 351 ; Be Manuel, Bhades v. Jenkins, 7 Ch. D. 
 711; RcBli/th tfc Youwj, 13 Ch. D. 41C. Mistake on the api)ellant'B part may 
 be a ground, and it is not essential to shew misconduct by the resjxnident, 
 (though there are expressions in the cases to the contrary : see Ite Mansel, 
 Rhodes v. Jenkins ; Mc Andrew v. Barker, 7 Ch. D. 701 ; Curtis v. Sheffield, 
 21 Cli. D. 5 ; Buviohr v. Marx, 19 C. L. J. 10 ; Berdem v. Burritmham, 7 Ch. 
 D. 24 ; but there must be an equity shewn in the applicant's favour either from 
 conduct of the other imrty or from something else recognized as a ground of 
 equity : lie New Callao, etc., 22 Ch. D. 484 ; Be Manchester Economic B. S., 24 
 Gil. U. 488 : Beckett v. Short, 32 W. R. 123 ; Wilby v. Standard, etc., 10 P. R. 
 34; irwis v. TalM Boad Co., 10 P. R. 15; Sieveris/ht v. Lci/s, 9 P. R. 200 ; 
 Lnnijdon v. Bobertson, 12 P. R. 139 ; Be Gnbourie, 12 P. R. 252 : and the onus 
 of shewing such equity is on the applicant : Shupc v. Shupc, 4 C. L. T. 129. 
 
 Leave was granted where the applicants had been without their default in Leave 
 ignorance of the order ap[)ealed from, and applied as sewn as they heard of it : granted. 
 He Padntow, Total Loss, etc., Ass., W. N. 1882, 1 ; 51 L. J. Chy. 344 ; where 
 the delay was attributable to the Court : McCrae v. White, 9 Pr. R. 288, supra, 
 \>. 80 ; under iwculiar si>ecial circumstances : Be Lake Superior Native Copper 
 Co., 11 P. R. 36 ; where some of the parties affected by the judgment lived at 
 a great distance, and out of the jurisdiction : Be Jacques, 30 W. R. 394 ; but not 
 where due diligence in communicating with them was not shewn : Miller v. 
 Rrown, 9 P. R. 542 ; and where the order api^ealed from, viz. : for the winding 
 up of a company was founded uix)n a void resolution of which the appellant 
 TOO obtained the order was not aware and therefore had not disclosed to the 
 Court; Re Manchester Economic B. S., supra ; where the case was important, 
 and there were conflicting decisions below : Powell v. Peck, 12 P. R. 34 ; 
 where leave was necessary and had not been applied for, but proceedings to 
 appeal had been taken in proiier time, and a fairly arguable ix)int of law was 
 presented: Lowjdon v. Bobertson, 12 Pr. R. 139, approving of the rule ex- 
 pressed in Sieveriijht v. Leys, 9 P. R. 200 ; and see Be Gabourie, 12 P. R. 252, 
 M Foley V. Canada P. L. d: S. Co., 18 C. L. J. 444. 
 
 Leave was refused where the delay was owing to the applicant's ignorance of Leave re* 
 the practice : Witby v. Standard, etc. , 10 P. R. 34 ; or to the party having inex- fused. 
 J.A. 6 
 
 
 \ir 
 
82 
 
 THFJ JUDICATURE ACT. 
 
 Beot. 73-74 ctiHably itmceedud »ind«r the old and reiM-iilfd piactice : Brown v. Dont, 34 
 W. K." 77t( ; Hr ('ronlin, 34 Ch. I). (Hi4 ; (tr to tin- iiiiMlvt-rtfnce of IiIh Holicihir; 
 Winnrtt v. /iemrick, "(I P. R. 233 ; or th»< niiMconHtnictioii of a nile : htn. 
 national Finaneud HocMi/ v. t'/<// of Moscow dan Co., 7 Vh, 1). 241, A 
 contrary Hulmefinunt deciHion by ft Court of Ai)|H«ftl does not fonii a Hjiwial 
 ciromniitance : t'raiif v. Phillip*, 7 Ch. D. 241) ; Allan v. MeTavinh, 3C. LT, 
 1W5 ; Hee cmUrn He Noniuintoit'ti, 50 L. ,1. Chy. 22;i ; and an offer of ami- 
 itroinise made to the succeHsfid party, and i)endintf when the time for ajjix-al- 
 ma hiw elai)N»!d raineH no etiiiity against the latter: Shujx v. ,VAiiw, 
 4 C. L. T. 12». 
 
 In CnrtiHV. Sheffield, 21 Ch. D. 1 (Hee also 20 Ch. D. 3!W), leave to apiiwl 
 from a decree 45 years old, which declare<l fiiture rights, was asked by a [lemiii 
 who ai>i)lied imniiptly after the happening of the event whicli entitled liim to» 
 fund if the decree should lie reversed. Leave was refusefl, the faet that future 
 rights were (leclarwl being held to l)e no sufficient reason for giving leave in a 
 case where all parties, who could in any event l)e interested, were before the 
 Court when the declaration was made. 
 
 Security for Oosts, etc.— See notes to Riden, H04, tt m/. 
 
 f i] 
 ■jtl 
 
 Executjon 7SJ, If at the time of the receipt by the Sheriff of Ajiat 
 
 super- to stay execution, or of a copy thereof, the money has been 
 
 plyment of made or received by him but not paid over to the party 
 
 iewe!fbe ^^o issued the execution, the party appealing may demand 
 
 withheld, back from the Sheriff the amount made or received under 
 
 the execution, or so much thereof as is in his hands not 
 
 paid over, and in default of payment by the Sheriff upon 
 
 such demand, the appellant may recover the same from 
 
 him in an action for money had and received. B. S. 0. 
 
 1877, c. 88, 8. 29. 
 
 LIMITATION OF TIME FOR APPEALINO. 
 
 Time^with- 73. Subject to the provisious of this Act all appeals 
 appeals from a judgment, decision, rule or decretal order of th« 
 meutB or* High Court, shall be brought to hearing within one year 
 ortersmuBt ^f*^'^ the giving of the judgment, decision, rule or order, or 
 be brought within such further time as the Court of Appeal may allow. 
 
 to^anear- ^ g ^ ^^^^^ ^ ^^^ ^^ ^^^ ^^ _ ^^ ^ ^ ^^ ^ ^^ 
 
 The year counts from the day on which the judgment or decision was deliv 
 ered or was given, not from the time wh m it was drawn up or entered ; « 
 Piatt V. O. T. Ry. Co. 12 P. R. 380. 
 
 h>*which^" 7^' ^^ *^® appeal is from an interlocutory order, not 
 appeals being a decretal order, then the appellant shall bring the 
 
 from luter- " . , . . , ,' . . , f^ , ,, ° . 
 
 locutory Same to a hearing within six months from the pronouncing 
 
 mult'be of the Same, or within such further time as may be allowed 
 
 a'helring." ^^'* the purpose by the Court of Appeal, upon spec'al 
 
 ■ grounds shewn to the satisfaction of the Court or Judge 
 
TRIAL AND PROOEDURB. 
 
 88 
 
 granting the same. R. S. 0. 1877, c. 88, s. 47; 44 \.^i^ 
 
 c. 5, 8. 39. 
 
 A» ta what are interlocutory ordwni see notes to sec. 68. 
 
 7^, The time limited for appealing from a judgnaent or Time to iie 
 order which, under any General Orders of the Court off^mSfe 
 Chancery still remaining in force, does not become abso- {;;''«^|;'' 
 lute upoii the same being pronounced, shall be computed j^"""""!^"* 
 from the time when the same does become absolute."'""'" 
 R. S. 0. 1877, c. 88, s. 47 ; 44 V. c. 5, s. 39. 
 
 ThiH HPction has i)nil)ably now no anplication. The (Jeneral Ordern referrejl 
 to art' iiri)lml)ly Chy. O. 113-117 whicn have not In-en inchided in the ConMoli- 
 (hited KuU'H and aiv therefore al)n)gated by Jiulv 3. 
 
 in 
 
 TRIAIi ANO PROCEDURE 
 
 In England the ordinary nuxle of trial in Chancery was always by a »ing'« 
 Judge. Tiiat waH the practice for many years in the Ontario Court also. Tlie 
 Chancery Act (R. H. ()., 1877, c. 40, s. 9!)) sIiowh the metho<l of trial by jury in 
 Chancery, where that course might be resorted to. 
 
 Sections 77 to 80 now goveni the practice as to when a trial is to be with, or 
 without, a jury. 
 
 In England the trial of an action with, or without a jury, deiwnds uinm Rules Practice 
 (Order Wi rr. 3-7 oi the Rules of 1883) which have not been adopted in Untario. England. 
 An absolute riffht is given to either party in jnirely Common Law actions t<» 
 require, by notice, the issues to be tried by a jury ; whereas in cases which for- 
 merly would have been brought in Chancery only, and so could before the Act 
 have been tried without a jury, there is, under Order 30 r. 4, a discretion 
 vested in the Court to dis{)ense with a jury against the will of the parties : see 
 Sugg V. Silhcr, 1 C^ B. D. 3<!2 ; Clark v. Skipper, 21 Ch. D. 13-1 ; Jte Martin, 
 Hunt V. Chambem, 20 Ch. D. 3(i8 ; Clarke v. Cnoknon, 2 Ch. D. 740 ; Boniirr v. 
 Burrdl, 5 Ch. D. 512; Bank of B. N. A. v. Eddi/, !) P. R. 4(}8; CardinaU v. 
 Cardimll, 25 Ch. D. 772 ; The Old Mill Co. v. Dukinfield Local Board, 50 L.T. 
 N. S. 414 ; Oardnrr v. Jai/ 2t) Ch. D. 50 ; The Temple Bar, 34 W. R. (W ; TIm- 
 son V. Wilmn, 38 Ch. D. 72 ; Famhaur v. London, etc., Dairu, 36 W. R. 418 ; 
 Lynch v. McDonald, ih. 419 ; Snow & Winstanley, Prac. 329. When the discre- 
 tion of the Court is exercised in favour of a jury trial, the cause may be trans- 
 ferred to another Division, to which it will thenceforwanl belong : Joneg v. 
 Baxter, 5 Kx. D. 275 ; and this is generally adopted as the more convenient 
 course : Be Martin, mtpra ; but an issue may be sent for trial at an Assize and 
 the action still remain in the Chancery Division : Jenkinn v. Morris, 14 Ch. 
 D. 674. 
 
 In Ontario the practice as to having, or dispensing with, a jury is different. Practice in 
 .\il actions which, under the practice existing at the time of passing of the Ontario. 
 L J. Act, 1873, could have been brought in the Court (jf Chancery only, must 
 be tried by a Judge without a jury (unless a jury can he hivl on 8i)ecial appli- 
 cation) : see sec. 77, and a notice of jury given in such a cas(» is ; rregular ana will 
 be struck out on motion : see Oowanlock v. Mann, 9 P. R. 270, an action for 
 rectification of a lease ; Thurlow v. Beck, 9 P. R. 268, an action to set aside a 
 conveyance : see also Usil v. Whelpton, 45 L. T. N. S. 39 ; 29 W. R. 799. 
 
 In all other actions, viz., those which migfht have been brought in the 
 Queen's Bench or Common Pleas, the provisions of sec. 78 will apply, i.e., 
 (except in the certain kinds of actions mentioned in s. 76) either party, upon 
 giAing notice, has a prima facie right to a trial by jury, subject to the discretion 
 vested in a Judge in Chambers, or the Judge at the trial, to direct otherwi.se : 
 see note to sec. 80 infra. 
 
lit. m 
 
 84 
 
 THE JUDICATUUE ACT. 
 
 Sees, 76,77. Writs of HummojiH are now issued out rt the various Divisions in rotation 
 without regard to the character of the action : Riilr 220 ; and may he entered for 
 trial at any sittings without regard to the Division to which the action is 
 attached, except that actions to be tried liy jury must he entered for a sittings 
 at which a jury is summoned, viz., the Assizes : Ittt/r CC8. Prior to the passing 
 of Jiiife (i(i8 the practice was diflferent : see VcrwUi/m v. UiUhric, !> P. R. ^7 
 and Mac. Jud. Act. 2nd ed. 60. 
 
 cortain T"©, In actions of libel, slander, criminal conversation, 
 
 torts'to b'e seduction, malicious arrest, malicious prosecution and faibc 
 tried by a imprisonment, all questions which might heretofore have 
 been tried by a jury, shall be tried by a jury, unless the 
 parties in person or by their solicitors or counsel, waive 
 such trial. E. S. 0. 1877, c 50, s. 252. 
 
 jury 
 
 In tliese cases the Court lias no power to disiiense with the jury 
 V. Wmh; !) Out. 15. 
 
 see Adair 
 
 77. Subject to Eules of Court, all causes, matters and 
 sues, over the subject of which prior to The Administra 
 of Justice Act of 1873, the Court of Chancery had exclusive 
 
 without u 
 jury 
 
 Cases foi'- 
 
 iuexciusive issucs, ovcr the subjcct of which prior to lite Administratm 
 
 jurisdic- 
 tion of 
 
 Court of jurisdiction, shall be tried without a jury, unless otherwise 
 ^"'' ordered. R. S. 0. 1877, c. 40, s. 99. See 44 V. c. 5, s. 45. 
 
 Wliat A change in the practice is made by this section. The woi-ds " prior to the 
 
 actions Administration of Justice Act of 1873 " have, in the Revision of the Statutes, 
 prima facie i,eeii substituted for the words "at the time of the passing of this (the.T. A, 1881) 
 to be tried j^^^ - ;„ j,pj. 45^ ^,f 44 y. c. 5. The effect of this alteration is to a^ld to the 
 cases which niu.st now be tried without a jury those actions which by the A. J, 
 Act, 1873, were miide cognizable by a Court of Law as well as by the Omrt of 
 Chancery, c. {/., actions for purely money demands though the right to recover 
 was an equitable one (see R. S. O. 1877 c. 49 s. 4) and actions wheiv an injunc- 
 tion, or similar eciuitable relief is required, though otherwise cognizable by a 
 Court of Law : see Toronto d: Navirintion Co. v. liilcox, 12 P. R. 022, and R. S. 
 O. 1877, c. 49, 8. 8. 
 
 In determining whether an action is one over the subject of which the Court 
 of Chancery had exclusive jurisdiction, the test is not whether the plaintifft 
 end might have been substantially f)btained by some proceeding cognizable iua 
 Court of Law, but whether or not the specific relief asked for m the statement 
 of claim is of a kind which on the 29th March, 1873, could only have 
 been obtained m the Court of Chancery : see Pnwsnn v. Merchant' Bunk, 1) 
 P. R. 72 ; MuMc v. Mam; 11 P. R. 81, reversing S. C. l(t P. R. 574 ; Herrirv)'!. 
 Brooks, 11 P. R. l.*). If the cause of action is an ecpiitable one the circumstance 
 that the issues or questions of fact to be tried are matters which juries are 
 accustomed to consider, in actitms differently framed, will not entitle a ;"iHyti' 
 trial by jury : Fnrran v. Hunter, 12 P. R. 324. 
 
 Examples. The following have been held to be cases which could have been only brought 
 in Chancery : an action for the rectification of a lease : (Jowanlock v. Mmm, 
 9 P. R. 270; to set aside a conveyance: Thurlow v. Beck, 9 P. R. 268 ;tu 
 declare void the delivery of certain notes: PawKoti v. Merchnntii' Bank, mf.\ 
 to establish a will : Re Lewis, Jackson v. Scott, 11 P. R, 107. 
 
 An a^ition by rate,>ayers against memlwrs of a municipal council for miscon 
 duct causing loss to the munici)>ality is an action against trustees, and 
 formerly witliin the exclusive jurisdiction of Chancery : Morrow v. Connor, 11 
 P. R. 423. 
 
 An action for sjjecific ))erff>nnance of a covenant to rej)air or for daiiinges was 
 held to be a Common Law action, as sjjecific iK-rfoniiance of such a covenant 
 
TRIAL BY JURY. 
 
 86 
 
 cuuld not be decreed in Chancery: Bingham v. Warner, 10 P. R. 621; but Seo. 78, 79. 
 generally where a party seeks equitable relief to which he is not entitled the 
 opposite party should, unless in a very clear case, demur, instead of attacking 
 the pleadings indirectly ky asking to have a jury : Jb. 
 
 Even in cases formerly within the exclusive jurisdiction of the Court of Jury ob- 
 Chancery a trial by jury may be had. Prima facie the trial is to be without tained on 
 a jury. It may, however be "otherwise ordered" on siiecial application, special 
 The power to order a jury existed under the Chancery Act (R. S. O. 1877, '"ot'oii- 
 c. 40, s. !I'J). Applications under that section could only be made to the 
 Court ; the Master in Chambers had no jurisdiction : Thurlow y. Beck, 9 P. R. 
 2G8. It is jjresumed that under the present section the applicr*tiou may be 
 made in the same way as an ap]>lication under section 80, th^t is, to the Cfourt 
 or a Judge thereof, and should not be made to the Master in Chambers or a 
 local -rudge, as the discreticjn to be exerciswl on the motion is similar to that 
 vested in the Judge at the trial under section 80 : see, however, Bennett v. 
 Treijcnt, 25 C. P. 443. 
 
 A jury was refused in .Be Lewis, Jackson v. Scott, 11 P. R. 107, a suit to estab- 
 lish a will. 
 
 7H.— (1) Subject to Rules of Court, all causes, matters other 
 and issues other than aforesaid, and the assessment orirlerand'" 
 Inquiry of damages therein may, and (subject to the pro- it^^ed by 
 visions of section 80) in the absence of such notice as is in Jjj^^^e 
 sub-section 2 of this section mentioned shall be heard, tried 
 and assessed by a Judge without a jury. 
 
 (2) If any of the parties desires the issues of fact to be uuiessjuiy 
 tried or damages to be assessed or inquired of by a jury, Riven^or 
 he shall, at least eight days before the sittings at which j^all "^ 
 the action is to be tried, or ithin such other time as may ^ire't^'*® 
 be ordered by the Court or a Judge, file and serve on the 
 opposite party a notice in writing to the effect following, 
 that is to say : 
 
 "The Plaintiff (or one or more of them or the Defendant, or one or wiorj 
 of them, as the case mai/ be) requires that the issues in this cause be tried 
 (or the damages assessed) by a jury," 
 
 and a copy of Ihe notice shall be attached to the record or 
 certified copy of the pleadings prepared for the Judge. 
 R. S. 0. 1877, c. 50, s. 253 ; 44 V. c. 5, s. 45. 
 
 The provision that a jui-y notice is to be served at least 8 days before the 
 sittings is new. Previously to the Rev. Stat, the jury notice had to be 
 filed with the last pleading : see Powell v. London Ass. Co., 10 P. R. 620 ; 
 Jlimphrrys v. Hunter, 20 C. P. 45«, 46C ; Leeson v. Lemon, 17 C. L. J. 430, 
 1 C. L. T. 698. 
 
 79. — (I) Where any one of the parties has given such Effect of 
 notice requiring a jury, the issues of fact therein shall (sub- JJSirinJ a 
 jeet to the provisions of section 80) be tried and determined ^"'y- 
 or the damages assessed by the unanimous verdict of 
 twelve juiors duly sworn for the trial of such issues or for 
 the assessment of such damages. 
 
 h^ 
 
 

 86 
 
 THE JUDICATURE ACT. 
 
 PLEADINGS 
 
 I i 
 
 8e& 80. (2) The parties present at the trial may consent that the 
 may' waive sai<i noticc shall be waived, and the case tried and dam- 
 notice, ages assessed by the Judge, and may indorse a memoran- 
 dum of such consent upon the record, and thereupon the 
 Judge may try the issues or assess the damages without a 
 jury. R. S. 0. 1877, c. 50, s. 254. 
 
 The memorandum if omitted to be made at the time may be made after- 
 wards nunc pro tunc from the Judge's notes : Wycott v. Campbell, 31 U. C. 
 Q. B. 584. 
 
 d^ect trial **®* Notwithstanding anything in the next preeeding 
 by jury, or two scctious Contained, the Judge presiding at the trial 
 jury."" * may in his discretion direct that the action or issues shall 
 be tried or the damages assessed by a jury ; and upon 
 application to the Court in which the action is pending, or to 
 a Judge thereof, by an order made before the trial, or by 
 the direction of the Judge presiding at the trial, the issues 
 may be tried and damages assessed without a jury. B. S. 
 0. 1877, c. 50, 8. 255. 
 
 It has been said that as a rule the question whether a jury notice ought 
 to be struck out can be better disjxjsed of by the Judge at the trial, when the 
 real questions to be tried have been ascertained, than by a Judge in Chambers 
 on the pleadings and affidavits (per Osier, J. A., in Connwc v. V. P. R, 120nt 
 App. 769), and the Judge at the trial is considered to have absolute control 
 over the manner i'.i which the case shall be tried, and his discretion will not be 
 interfered with ty a Divisional Court : lirown v, Wood, 12 P. R. 198. 
 
 In Conmce v. C. P. R. {sup. ) though the Court of A]>iieal held th.it the plain- 
 tiflf was entitled to a jury, at the trial a jury was dispensed with and the case 
 referred to arbitrators. It has, therefore, sometimes been considered inn- 
 I)edient to deal with the matter on motion before trial in view of the power 
 of the Judge at the trial: see Temperance Colonization Co. v. A'wns, 12 P. R. 
 48, 380 ; McMahon v. Lavery, ib. 62. Cases, however, have arisen in which 
 the Court has acted on motion. In Bennett v, Tregent, 25 C. P. 443, Mr. Dalton, 
 (i. C. , Clerk of the C. & P. sitting in Chambers, directed the trial to be without 
 a jury in an action for a breach of warranty, and his power to do so was 
 affirmed by the Court. In Pickup v. Kincaid, 11 P. R. 445, an action to recover 
 fees for medical attendance, where nothing was in dispute but the amount, 
 it was held to be a projier crvse to strike out a jury notice with a view t« 
 having an account directed at once. 
 
 It has been held that this section places the matter in the discretion of the 
 Judge in much the same way as under the English Order 36, rr. 3-7, that is 
 the Judge must be satisfiec that sufficient reasons exist to deprive the party 
 claiming a jury of his prima /ac«e right. The ohms of establishing th'sison 
 the other side, if an application is made before trial, and if the case can be 
 equally well tried by either mode, then, if either party desires it, the owe 
 should go to a jury : Bank of B. N. A. v. Edd>i, 9 P. K. 470 ; see also ClarH 
 Skipper, 21 Ch. D. 134 ; Mobcs v. Simpson, 20 C. L. J. 230. 
 
 Semble, mere complexity of facts would not, alone, be sufficient reawn for 
 dispensing with a jury, in a Common Law action : Bank of B. N. A. v. EM}, 
 ft P. R. 468. 
 
 Under ordinary circumstances an action for infringement of a patent should 
 not be tried by a jury : Venailyea v. Guthrie, 9 P. R. 267. 
 
 Causes of action may in a proper case be severed, that some proper f« ^m Pendant without notice ( 
 trial by jury may be so tried ; see Temperance Colonization Co. v. Ernnt, m H i» valid in tlie foreign coun 
 
 McMahon v. Larrry (t 
 ordered where there it 
 324. 
 
 Riiln (J77 and (J78 pri 
 legal and equitable issii 
 
 Where a trial is comi 
 diii|)ense with and disci 
 McConaijhji, 29 C. P, ."H 
 
 Where a case had b 
 disjiense with a jury, a: 
 held thftt the cane haviii 
 lie so tried, subject to tl 
 V. £(/(///, 3 C. L. T. 499 
 P. R. 409, a second trial 
 where there was no prin, 
 In McUuiu'jhiil V. <f. 
 and a .second trial had b 
 evidence, an order was ii 
 
 PLEADINGS II 
 
 Foreign jiidginent.s ar 
 extend to Ontario : Mnp^ 
 ment if not inii)eiiched oi 
 -l/ffH/im;/ V. Thompmn, 1 
 that the period of limitat 
 it, applies : North v. Fid 
 
 The principle upon vh 
 mentof a Court of compe 
 gation uijon the defendan! 
 Fovler v. Vail, 4 Ont. Ai 
 l;odaplv.Oray,L. R. « ( 
 li"4. 
 
 A judgment for a penal 
 a debt enforceable in this 
 
 . A '<?"*'?" judgment is i 
 junsdiction over the su 
 that the judgment was 
 defence that the judgmei 
 <'f jurisdiction. The Con 
 wen he is the subject of 
 in It, and he is theiefoi 
 alwenoe, where recovered 
 allegiance as a subject, oi 
 wmmenced, resident in th 
 ofifahiwa. The absence ( 
 W^v. F,n7;«,vi«n/v 
 i^.Maubourquet v. Wi/x 
 W.v V. Cromwell, 9 P. R. 
 
 If the foreign Court had 
 i^jurwdiction by ap|)eai'' 
 n ' *''* J-Of^firment is co 
 
 n*'"''''"»^'"'»ave 
 m other cases mipra ; Pc 
 
 J[*S'i""'lt»'ningafoK 
 ?l^\^295;or_thati 
 
 ( 
 
 K'cto' 1 Camp. 63 ; 9 
 de^dant without notice 
 
PLEADINGS IN ACTIONS ON FORBION JUDGMENTS. 
 
 McMahaii v. Lavrrii (»up.) ; but such separate trial by jury should not be 
 orfered where there is but one cause of action : Farran v. Hunter, 12 V. K. 
 324. 
 
 Buk» 077 and ()78 pi'ovide the mode ot trial where equitable issues or both 
 legal and e(iuitable issues are raised. See notes to those Rules. 
 
 Where a trial is commenced with a jury the Judge cannot during its progress 
 (lisDense with and discharge the jury and try the case by himself : Denmark v. 
 McConayhii, 29 C. P. 563 ; Atlair v. Wade, !) Ont. 15. 
 
 Where a case had been tried and the jury disagreed, a motion was made to 
 disiieuHe with a jury, as a jury would be likely to disagree again, but it was 
 held that tlie case having l)een considered projwr for a trial by jury, it should 
 lie so tried, subject to the directions of the Jiidge at the trial : Bank of B. N. A . 
 V. Eddii, 3 C. L. T. 4!(!> ; see 10 C. L. J. 158 ; but in Adammn v. Adamson, 12 
 P. R. 4<)!', a second trial was directed to be without a jury, the case being one 
 where there was no primu facie right to a jury. 
 
 In McOiiiuriliiil V. (f. T R., (J P. R. 209, wliere, after the jury disagreed, 
 and a second trial had been had, but the verdict had been set aside as against 
 evidence, an order was made for trial by a Judge. 
 
 PLEADINGS IN ACTIONS ON FOREIGN JUDGMENTS. 
 
 Foreign judgments are those given by Courts whose jurisdiction does not 
 extend to Ontario : Macfarlaue v. Iterbishire, 8 U. C. C^. B. 12 ; a foreign judg- 
 ment if not inii)eached or denied is prima facie evidence against the defendant : 
 ilanninii v. I'liompsoii, 17 C. P. (ifHi. It constitutes a simple contract debt, so 
 tliat the period of limitation in such case ((5 years), for bringing an action upon 
 it, applies : Nortli v. rinhei; (i Ont. 200. 
 
 The principle upon vhich a foreign judgment is enforced is that the judg- 
 ment of a Court of competent jurisdictitm over the defendant imposes an obli- 
 gation uix)n the defendant to i)ay which the domestic Court is bound to enforce: 
 Fiivkrw Vail, 4 Ont. App. 270'; Caxtrique v. Imrie, L. R. 4 E. & I. App. 414 ; 
 (,V(w/ V. Grnn, L. R. « i^. B. 13!> ; Re Trufort, Trafford v. Blane, 57 L.T. N. S. 
 
 A judgment for a penalty under a statute of a foreign State doe» not create 
 a debt enforceable iu this Province : Huntinydon v. Attri/I, 17 Ont. 245. 
 
 A foreign judgment is prima facie evidence only that the foreign Court had 
 jurisdiction over the subject matter or the jjerson of the defendant, and 
 that the judgment was regularly obtained. It may be shown by way of 
 defence that the judgment was not binding in the foreign country, for want 
 of jurisdiction. The Couri; has jurisdiction over the person of the defendant 
 when he is the subject of the country even though not resident nor domiciled 
 in it, and he is therefore bound by a judgment, though obtained in his 
 absence, where recovered under the process of the country to which he owes 
 allegiance as a subject, or temporary allegiance by being, when the suit was 
 commenced, resident in the country, so a< to have the benefit and protection 
 of its laws. The absence of these circumstances will constitute a defence : see 
 Fotder v. Vail ; Owlard v. Oray (mp.) Schibshti v. Wextenholz, L. R. 6 Q. B. 
 \^; Maubourqiiet v. Wuite, 1 Tr. C. L. 471; McLean v. Shields, 9 Ont. 699; 
 Bw(.vv. Cromwell, 9 P. R. 547 ; 2 Smith L. C. 8th ed. 840. 
 
 !f the foreign Court had jurisdiction as above (or if defendant submitted to 
 [ts jurisdiction by api>earing : I'oiiiet v. Jlurtett, 34 W. R. 161 ; 1 Cab & E. 
 •Wl, the judgment is conclusive so as to prevent him from pleading any 
 defence which miglit have lieen pleaded in the foreign country : Innvler v. Vail, 
 and other cases sitpra ; Paisley v. Bniddif, 11 P. R. 202. 
 
 Fraud in obtaining a foreign judgment is a defence : Aboulojf'v. Oppenheimer, 
 11 Q. B. D. 295 ; or that it is contrary to natural justice as in Buchanan v. 
 Rneker, 1 Camp. 63 ; 9 East. 192 ; or the fact that it wa« obtained against 
 wtendant without notice (he being an alien), notwithstanding the judgment 
 Invalid in the foreign country : Itousillon v. Rousiilon, 14 Ch. D. 351. 
 
 87 
 
 Sec. 80. 
 
 -,i-5l 
 
 \ 
 
mmr, 
 
 88 
 
 tht; j^uicatube act. 
 
 8608.81-84. j^l. In any suit brought in Ontario on a judgment or 
 fudgment dccrec obtained in the Province of Quebec in a suit in 
 in Quebec, which the service of process on the defendant or party 
 Mrvice was sued has been personal, no defence that might have been 
 personal, g^j. ^p ^.^ ^j^g original suit shall be pleaded to that brought 
 on the judgment or decree. K. S. 0. 1877, c. 50, s. 145. 
 
 ^ud*ment ^^' ^^ ^^y ^"^^ t'^'o^g^t ^^ Ontario on a judgment or 
 in Quebec, decree obtained in the Province of Quebec in a suit in 
 ^rwce was which personal service was not obtained and in which no 
 sonir defence was made, any defence that might have been set 
 up to the original suit may be made to the suit on the 
 judgment or decree. R. S. 0. 1877, c. 50, s. 146. 
 
 Qitcere whether the i^ersonal service referred in tliese sections means ]iersoiial 
 service in the Province of (Quebec : Court v. SaiU, 32 U. C. C. P. 148. In that 
 case the action was upon a prom, note made in Toronto i)ayable in Montreal m 
 that the contract was performable, and the breach occurred, in Quebec, bringing 
 the defendant within 22 V. c. 5, s. 58., wliich, by the law of Quebec, gave the 
 Quebec Court jurisdiction upon a personal service in Ontario. 
 
 As to the mode of proof of a Quebec judgment : see Tilt'in v. J/cA«y, 24 
 U. C. C. p. »4. 
 
 VERDICT. 
 
 direct jur? **' Upou a trial by a jury, where the Court or the pre- 
 
 toRiyea siding Judge otherwise directs, it shall not be lawful for 
 
 d?ct!'eMep^t the jury to give a general verdict, and it shall be the duty 
 
 lorliibeT* of the jury to give a special verdict if the Court or presiding 
 
 Judge 80 directs ; and unless the Court or the presiding 
 
 Judge otherwise directs, the jury may give either a general or 
 
 a special verdict ; but this section shall not apply to actions 
 
 of libel. R. S. 0. 1877, c. 50, s. 263. 
 
 A "general Aerdict " is one whereby tlie jury find the issue in favour of one 
 party or the other, generally i. e. plamtiif, or defendant, as the ca.se maybe; 
 and where there are several issues, if some \ie found in favour of one side and 
 some in favour of the other, this would still be a " general verdict :" Co. Lit. 
 22« ; Dtivicii v. Louwlfn, 1 Sc. N. R. 328 ; Chitty's Arch. Pr. (14th ed.) t>55. X 
 " special verdict," on the other hand, is one whereby the jury simply find the 
 facts, le'.iving it to the Court on applying the law to the fucts so found, to 
 determine for which of the parties a judgment should be given : Co. Lit. 227 1)., 
 228. Chitty's Arch. Pr. (14th ed.) GriT). 
 
 Formerly a jury might in all cases give a general vei-dict : Mayor of Devm\. 
 Cl.nrk, 3 A. & E. SWi ; but this and the following section have restricted this 
 right. 
 
 cSsetu?!" **"*• Upo" * ^^^^^ ^y Jui'y. in any case except an action 
 iury may for libel, slauder, criminal conversation, seduction, inaliei- 
 to answer 0U8 arrest, malicious prosecution, and false imprisonment, 
 2Sd*on"the the Judge, instead of directing the jury to give either a 
 
INTEUEST. 
 
 89 
 
 general or a special verdict, may direct the jury to answer 8«!«- m-w. 
 any questions of fact stated to them by the Judge for the tie Judge • 
 purpose; and in such case the jury shall answer such «J^jn^«»»te^ 
 questions, and shall not give any verdict; and on the 
 finding of the jury upon the questions which they answer, 
 the Judge shall direct judgment to be entered. R. S. 0. 
 1877, c. 50, s. 264. 
 
 See ('aiinda Central v. McLaren, 8 Ont. App. 564 ; St. Denis v. Baxter, 13 
 Ont. 41 ; <i(iwer v. Liisse, 16 Ont. 88. 
 
 It is imperativp npon the jury to answer the questions submitted to the.ii 
 .Mil they may not give a general verdict instead, unless the Judge in his dis: 
 (^rrition receives it : Furhm'j v. Carrn" ' Ont. App. 14.5. 
 
 INTEREST. 
 
 Hti- Interest shall be payable in all cases in which it is interest 
 now payable by law, or in which it has been usual for a "ifowed 
 jury to 'allow it. R. S. 0. 1877, c. 50. s. 266. l^n'^el 
 
 Interest is in practice more frequently allowed by our juries than English "*" 
 .wthority would se-'m to warrant : Speace v. hector, 24 U. C. Q. B. 277 ; see 
 also Mennie v. Leitch, 8 Ont. 397 ; Snarr v. Hadenach, 10 Ont. 131 ; Re Kirk- 
 mtrick, 10 P. R. 4 ; MiclUe v. ReynMs, 24 U. C. Q. B. 303 ; Moatgomery v. 
 liMchcr, 14 U. C. C. P. 45. 
 
 As to the allowance of interest on a claim in the Master's office : see Re Ro6s, 
 2i( Gr. 385. 
 
 86. — (1) On the trial of any issue, or any assessment of when 
 damages, upon any debt or sum certain, payable by virtue debts cer- 
 of a written instrument at a certain time, interest may be oveid"^ 
 allowed to the plaintiff from the time when the debt or 
 sum became payable. 
 
 See Tmvsley v. WytheJi, 16 U. C. Q. B. 139. 
 
 (2) If payable otherwise than by virtue of a written 
 instrument at a certain time, interest may be allowed 
 from the time when a demand of payment is made in 
 writing, informing the debtor that interest will be claimed 
 from the date of the demand. R. S. 0. 1877, c 50, s. 267. 
 
 Interest may ba allowed on a solicitor's bill if a demand in writing is made 
 for It : Re McVlice, 9 P. R. 213. 
 
 iH7. In actions for conversion of goods or for trespass wiien by 
 f/e bonis asportatis, the jury may give interest in the nature damages i» 
 of damages over and above the value of the goods at the ^^^ji^n". 
 time of the conversion or seizure, and in actions on poli- 
 cies of insurance may give interest over and above the 
 money recoverable thereon. R. S. 0. 1877, c. 60, s. 268. 
 
 ,x< ' % 
 
 \ 
 
90 
 
 THE JUDICATURE ACT. 
 
 1 ! 
 
 Sees. 88,89. f^^. Unless it is otherwise ordered by the Court, a 
 jSdgment" verdict or judgment shall bear interest from the time of 
 the rendering of the verdict, or of giving the judgment, 
 as the case may be, notwithstanding that the entry of 
 judgment upon the verdict, or upon the giving of the 
 judgment, shall have been suspended by any proceedings 
 in the action, whether in the Court in which the action is 
 pending or in appeal. R. S. 0. 1877, c.*'88, s. 43 ; c. 50, 
 s. 269 ; 47 V. c. 10, s. 4. 
 
 Interest does not run from the date of the verdict, where the judgment 
 is exi)reHsly directed to be entered at a future day : McLaren v. Caimdn Centra} 
 Rji. Co., 10 P. R. 328 ; and wliere a verdict is entered, subject to an award, tl><^ 
 amount of the award does not bear interest from the date of the verdict : Hope 
 V. Bcattii, 7 P. R. 3!) ; and see Woodrufv. Vanadu Ouamntee Co., 8 P. R. 532. 
 
 Sittings for 
 trial ot' 
 pauses. 
 
 ^ „. ^ 
 
 ^■\ •'■■'■ ■' •> 
 
 SITTINGS. 
 
 SO. — (1) Subject to Kules of Court, as often in every 
 year as the due despatch of business and the public con- 
 venience may require, there shall be sittings of the High 
 Court at every county town for the trial of causes, matters 
 and issues, whether legal or equitable, in all Divisions of the 
 High Court, which are to be heard and determined by a 
 Judge without a jury, and also for the trial of causes, 
 matters and issues in all Divisions of the High Court 
 which are to be tried with a jury, and for the trial of 
 criminal matters and proceedings ; and in case such first 
 mentioned sittings are appointed at any county town for 
 the same time and before the same Judge as jury cases, 
 separate lists shall be made of the jury and non-jury cases, 
 and the jury cases shall first be disposed of, unless the 
 Judge sees tit to direct otherwise. 44 V. c. 5, s. 46 ; 48 ^'. 
 c. 13, s. 14. 
 
 (2) The Judges of the Supreme Court of Judicature, or 
 a majority of them, shall appoint the days upon which 
 such sittings shall be held. R. S. 0. 1877, c. 40, s 24 ; 
 c. 41, s. 2. 
 
 See also Mule 213. 
 
 Under this section the High Court holds Circuit Sittings similar to the 
 former Sittings of Courts of Assize and Nisi Prius. 
 
 Commissions for holding Courts of Assize and Nisi Prius may still be issued. 
 See R. S. O. 1887, c. 45. 
 
 Semble, that the Lieut. -Governor as well as the Governor-General has jxjwer 
 to issue such commisssons : lieg. v. Amer, 42 U. C. Q. B. 391. 
 
 See also JRe;f. v. Bunting, 7 Ont. 118. 
 
SITTINGS. 
 
 91 
 
 »0.— (1) Sittings of the High Court for the trial of8eo«.90,M. 
 causes, matters and issues shall be held at the county town apf,Siut *" 
 of every county and unioii of counties in each year between fj^,[^i[°*' 
 the Hilary and Easter sittings of the High Court, and courts of 
 between the 1st day of September and the Michaelmas ^''"'''^' 
 sittings. R. S. 0. 1877, c. 41, s. 1. 
 
 (2) One such sittings shall ordinarily be held in each 
 year at Sault Ste. Marie and at Port Arthur, respectively, 
 on such days as may from time to time be appointed 
 therefor by the Judges of the Supreme Court of Judicature, 
 or a majority of them, but if the said Judges, on inquiry, 
 ascertain on any occasion that any such sittings is not 
 required for the administration of justice, it shall not be 
 necessary to appoint a day for the holding thereof. 47 V. 
 0.14, s. 13. 
 
 (3) In addition to the said sittings so to be held at the 
 county town of the County of York, there shall in every 
 year be held at such county town a third such sittings 
 between the said Michaelmas and Hilary sittings, and a 
 fourth such sittings between the said Easter sittings and 
 the 1st day of July. E. S. 0. 1877, c. 41, s. 1. 
 
 (4) In addition to the sittings so to be held at the county 
 towns of the Counties of Wentworth and Middlesex, there 
 shall be held at each of such county towns a third such 
 sittings for the trial of civil causes, matters and issues and 
 criminal matters and proceedings, or of civil causes, mat- 
 ters and issues only, in each and every year between said 
 Michaelmas and Hilary sittings. R. S. 0. 1877, c. 41, 
 8. 1 ; 48 V. c. 13, 8. 14. 
 
 (5) In addition to the regular sittings to be held under 
 sub-section 1 of this section, a third such sittings may he 
 appointed if the Judges of the Supreme Court, or a 
 majority of them, shall see fit for the trial of civil causes, 
 matters and issues and criminal matters and proceedings, 
 or of civil causes, matters and issues only, to be held at 
 the county town of any county in the P rovince between 
 
 said Michaelmas and Hilary sittings of the H*gh 
 48 V. c. 13, 8. 14. 
 
 ]ourt. 
 
 »I. The Judges of the Supreme Court may appoint JudKes 
 sittings of the High Court in any county in the Province, IJolnt'sit- 
 
 ;*>' 
 
t)2 
 
 THE JUDICATURE ACT. 
 
 f' 1 I- 
 
 Bees. 92-90. 
 
 tinRHinany 
 County for 
 isBueH to be 
 tried with- 
 out a jury. 
 
 Separate 
 RittiugH for 
 civil and 
 criminal 
 matters. 
 
 as often and at such times as they see fit, for the trial of 
 causes which are to he tried hy a Judge without a jury. 
 R. S. 0. 1877, c. 41, s. 5. 
 
 02. The sittings of the High Court for the trial of 
 civil causes, matters and issues in any county may, in the 
 discretion of the Judges appointing the days therefor, or 
 of the Judge who has been appointed to preside or is 
 presiding thereat, be held separate and apart from the 
 sittings for the trial of criminal matters and proceedings, 
 either on the same day or on a different day. R. S. 0. 
 1877, c. 41,8. 8. 
 
 I'laroin o:j. guch sittiugs may, at the discretion of the Court 
 
 Town* or of the Judge who is to hold the same, be held in the 
 
 conrttobe"'ourt house of the county town in which the same are 
 
 '>o>'i appointed to be held, or in such other place in the county 
 
 town as the Judge selects ; and *;he Judge shall in all 
 
 respects have the same authority as a Judge formerly had 
 
 when sitting at Nisi Prius in regard to the use of the court 
 
 house, gaol and other buildings or apartments set apart 
 
 in the County for the administration of justice. R. S. 0. 
 
 1877, c. 40, s. 26. 
 
 Who may 
 preside. 
 
 »4. — (1) Such sittings shall be presided over by one of 
 the Judges of the Supreme Court ; or in their absence by 
 a retired Judge of the Supreme Court or by a Judge of any 
 County Court in Ontario, or by one of Her Majesty's Coun- 
 sel learned in the law appointed for Upper Canada, or for 
 the Province of Ontario, upon such Judge or Counsel being 
 requested by a Judge of the Supreme Court to attend for 
 that purpose. R S. 0. 1877, c. 41, s. 6. 
 
 (2) Such Judge or Counsel while holding the sitting 
 shall possess, exercise and enjoy all the powers and author- 
 ities of a Judge of the High Court, and in civil proceedings 
 may reserve the giving of his decision on questions raised 
 at the trial ; and sucU decision shall have the like force 
 and effect as the decision of a Judge of the High Court. 
 R. S. 0. 1877, c. 40, s. 27 ; c. 41, s. 8. 
 
 ABSENCF. OF JUDGE AT THE OPENING OF ASSIZES. 
 
 Course to 95. Where the Judge whose duty it is to hold any 
 b??he'*"^ [Court of Assize and Nisi Prius, or of Oyer and Terminer 
 
TRIAL OF Hli»H COURT CASES IN CO. COURT, ETC. 
 
 93 
 
 or General Gaol delivery,] does not arrive in time, or is notseo.96, 
 able to open such Court on the day appointed for that pur- J,,; J^^ .^ 
 pose, the Sheriff of the County in which such Court should tbejud«e 
 be holden, or, in his absence, his Deputy, may, after the doe8''i.ot 
 hour of six of the clock in the afternoon of such day, ^,^^'^1^^.%. 
 adjourn by his proclamation, the Court which should lia^ei^'o|^'j'^^e(U..r 
 been opened on that day, to an hour on the following day comt. 
 to be by him named, and so from day to day until the 
 Judge arrives to open such Court, or until such Sherifif 
 receives other direction from the Judge in that behalf. 
 R. S. 0. 1877, c. 41, 8. 11. 
 
 By 52 V. c. 10, s, 3, tlie wordw in brackets have I teen struck (lut and the 
 following inserted in>4tead :— "SittingH of the High Court for the trial of civil 
 cases, matters tmd issues, and for the trial of other matter and proceedings 
 within the jurisdiction of the Provincial Legislatuiv. " 
 
 The adjournment of Courts of Assize and Nisi Prius is provided for in 
 K. S. (). 1887, c. 4f), s. (!. 
 
 't)^i 
 
 TRIAL OF SUPERIOR COURT CASES IN COUNTY COURTS, AND 
 COUNTY COURT CASES BEFORE HIGH COURT. 
 
 116. — (1) All issues of fact and assessments of damages certain 
 in the High Court relating to debt, covenant and contract, nfgli comt 
 where the amount is liquidated or ascertained by the sig- irfe^^if, the 
 nature of the defendant, may be tried and assessed in the c°""t^of 
 County Court of the county whete the trial is to take place, the county 
 if the plaintitf desires it, unless a Judge of the High Court the^veuue 
 otherwise orders, and upon such terms as he deems meet. '^''^''^' 
 
 The amount must be ascertained by the signature of defendant or liquidated 
 in the same way : MrPhrrson v. McPhermn, 5 P. R. 240. A note made in the 
 U. S. and payable in American currency is not so liquidated or ascertained : 
 Cushman v. Rei(/, 20 C. P. 147; 5 P. R. 121. By sub. sec. 3 infra the Court 
 has a discretion to send an action for any debt for trial in a County Court, 
 though the debt be not liquidated or ascertained by the signature of the 
 defendant. 
 
 action shall be entered for trial, 
 given, and the trial take place in 
 
 (2) In such case the 
 notice of trial shall be _ 
 the same way as in ordinary cases in such County Court. 
 
 (3) In any action in the High Court, in which the 
 amount of the demand is ascertained by the signature of 
 the defendant, and in any action for any debt in which a 
 Judge of the said High Court is satisfied that the case may 
 safely be tried in a County Court, any Judge of the High 
 Court may order that such case shall be tried in the 
 County Court of the county where such action was com- 
 menced, and such action shall be tried there accordingly, 
 
 Certain 
 cases in tlie 
 High Court 
 may be 
 sent to 
 be tried at 
 the County 
 Court of 
 the County 
 in which 
 the action 
 is brought. 
 
94 
 
 THE JUDICATUHB ACT. 
 
 Baei. 
 
 Proceed 
 in|{B in 
 such case. 
 
 •';••• and the record shall be made up as in other cases ; and the 
 order directing the case to be tried in the County Court 
 shall be left with the Clerk of the County Court on entering 
 the action for trial, annexed to the certified copy of the 
 pleading for the Judge : and the trial shall take place in 
 the same way as in ordinary cases in such County Court. 
 E. S. 0. 1877, c. 49, s. 31. 
 
 In the camH mentioned in clause 1 the plaint iff Ih p-rima facie entitled to a 
 trial in the County Court of the county in which the place named tm the place 
 of trial iH, but if he takes steps for this purj^se the defendant may move to 
 have the trial in the High Court. 
 
 In the cases mentioned in clause 3 the plaintiff must first obtain an order f(ir 
 trial in a Coimty Court, and the County Court mtist be that of the county in 
 which the action is commenced, /. e., the county in which the writ wa« 
 issued. 
 
 cmmt'"'^ 07. — (1) By the order of a Judge of the High Court, 
 Court cases made upon such terms as the Judge may consider just, 
 tX^at the issues of fact and assessment of damages in any 
 ^j'jSj^^^'g""^* action pending in a County Court may be tried and 
 
 assessed at the sittings of the High Court at any county 
 
 town. 
 
 This does not enable issues of fact to be tried in the High Court, leaving 
 issues of law on the same record to be determined in the Co. Court : Pattypiece 
 V. Mayville, 21 C. P. 31G. 
 
 (2) In such cases the action shall be entered and the 
 case tried as in ordinary cases. K. S. 0. 1877, c. 49, 
 s. 32. 
 
 The jurisdiction of the Co. Court is not enlarged by the trial of the case in 
 the H. C. Where, therefore, the title to land came in question so that a Co. 
 Court had no jurisdiction, a verdict was entered for defendant : Wetherall v. 
 (Jarlmo, 30 U. C. Q. B. 1. 
 
 coun" °' *** Where any such cause is referred by the presiding 
 
 Court as to Judge at such sittings, the County Court in which the 
 
 whSn^* action is brought, and the Judge thereof, shall have the 
 
 'leisto^tt- same power to enforce any award, report or certificate 
 
 bitration, made on the reference, and to make rules and orders upon 
 
 appeals therefrom and motions relating thereto, as if the 
 
 order referring the case had been made by the County 
 
 Judge. R. S. 0. 1877, c. 49, s. 40. 
 
 Kooksfor 99. The Clerks of the several County Courts shall pro- 
 notes of vide books in which the Judges presiding at the sittings of 
 trial, etc. ^j^g jjj|gjj Court, where cases brought in any County Court 
 are tried or assessed under this Act, may enter their notes 
 
OFFICIAL REFEREES AND A8HESS0RS. 
 
 95 
 
 of such trials and assessments ; and such books, immedi- ■•«•• ^^' 
 atelv after the trials or assessments, shall be returned to 
 the 'said Clerks and shall remain in their offices. H. S. 0. 
 1877, c. 49, s. 41. 
 
 100. The jury fees and the fees and charges pa-y^'ble ^'^^^^^^ 
 and pertaining to officers of the County Courts, upon all 
 actions or proceedings brought in the County Courts, and 
 tried or assessed in the High Court, shall be chargeable 
 and paid as if the same were being tried or assessed in the 
 County Courts; and no other fees shall be chargeable 
 thereon, and the Clerk of a County Court shall be entitled 
 to receive and take such part thereof as pertains to him, to 
 his own use. R. S. 0. 1877, c. 49, s. 44. 
 
 OFFICIAL REFEREKS AND ASSESSORS. 
 
 Equitable jurisdiction being given to all the Divisions of the High Court, the 
 following sections are intended to give to all the Divisions, certain powers of 
 reference similar to those fonnerly possessed by the Court of Chancery, and 
 necessary in certain classes of cases in that Court. 
 
 Section 101 gives the jHiwer of referring, not the action, but any questions 
 arising therein, to the proi)er officer, or to an official referee, or to any other 
 person (if the parties so agree), for inquiry and reix)rt ; and the reiwrt is treated 
 by the Court as formerly a reix)rt of a Master was in Chancery. 
 
 The Common Law Courts had, previous to the Ont. J. A. 1881, jjower only 
 under R. S. O. 1877, c. 49, s. 2(>, to refer matters in a cause for reijort. Sec. 
 101 gives a new tribunal, that is to say, instead of referring certain questions 
 to a Masti^r for report, the Court may refer questions to an Official Referee — 
 an officer newlv ajipointed with limited duties and also defined powers. See 
 Lomjpian v. Eniit, 3C. P. D. 142, 153. 
 
 Sec. 102 gives jKjwers which neither the Court of Chancery nor the Common 
 Law Courts {assessed before. It gives authority to refer (without, as well as 
 with, consent) to the proi)er officer any question or issue of fact, or any question 
 of account, requiring a prolonge<l examination of documents or accounts, or a 
 scientific or local investigation, which cannot conveniently be made before a 
 juiy, or conducted by the Court itself directly, not merely for report but for 
 trial : Lonijnutn v. Emt, sup. 153. 
 
 A full explanation of these sections will be found in Longman v. East, 
 sup., quoted very fully, with approval, in Cumming v. Low, 2 Ont. 499. 
 
 The former power of the Court of Chancery to refer to a Master : Lonnnmn 
 V. East and Gumming v. Low, sup.; Slack v. Midland, 1(5 Ch. D. 81 ; 29 W. R., 
 302, and the former practice as to arbitration were left unaffected by the Ont. 
 J. A. 1881: Cruikshank v. Floating Swimming Baths Co., 1 C. P. D. 2G0; 
 Lorupnan v. Eastj sup.; Lloyd v. Lewis, 2 Ex. D.j 7 ; Cumming v. Low, 2 Ont. 
 499 ; and each Division of the High Court was given the Jurisdiction formerly 
 possessed by any of the Courts consolidated in the High Court; sees. 3 and 35. 
 
 Rule 550 now provides, however, that the Court will not refer to arbitration, 
 80 that all references of matters not disjwsed of by the Judge at the trial are 
 referred either to a Master (see Bules 43-138) or an Official Referee. 
 
 See notes to Rule 550. 
 
 101,— (1) Subject to any Rules of Court and to such f^^l'^^l 
 right as may exist to have particular cases submitted to ors. 
 
 "■1.1 ><^ 
 
 
 ■H 
 
a«a 101, 
 
 (2.8.) 
 
 THK .lUDICATUUE ACT. 
 
 the verdict of a jury {a) any question arising in any cause 
 or matter before the High Court of Justice or before the 
 Court of Appeal, may be referred by the Court or by any 
 Divisional Court or Judge before whom such cause or mat- 
 ter may bo pending, for inquiry and report to a Judge of a 
 County Court, or to an official referee, or to any other per- 
 son agreed on by the parties ; and the report of such referee 
 may be adopted wholly or partially by the Court, and may 
 (if so adopted) be enforced as a judgment by the Court. 
 
 (2) The High Court, or any Divisional Court or Jadge as 
 aforesaid, or the Court of Appeal, may also, in any such 
 cause or matter as aforesaid in which it may think it expe- 
 dient so to do, call in the aid of one or more astiessora 
 specially qualified, and try and hear such cause or matter 
 wholly or partially with the assistance of such assessors. 
 
 (3) The remuneration, if any, to be paid to such referees 
 or assessors shall be determined by the Court. 44. V. 
 c. 5, s. 47. 
 
 See Enjf. J. A. 1873, 8. 3«. 
 
 By section iHS of the Knglish Aut tlie reference is to any official or Njiecial 
 Referee, instertd of being, as in the Ontario Act, to a ,Tudge of the bounty 
 Court or to an Official Keferee, or to any other i)erson agreefl on by tlie 
 
 Earties, With re8|)ect to uiatterH embraceci in sub-sec. 2, the words " or any 
 divisional Court or .Tudge aforesaid," are not in the English Act. 
 
 As to who are Official Referees see section 124. See al80_ Rule Hryi, which 
 provides further for references to take accounts or make inquiries at any stage 
 of pnxjeedings. 
 
 (a) For such cases see sees. 70 and 78, and notes. 
 
 The Master in Chambers and local .Judges have no jurisdiction to make an 
 order under this section : Ciiion Loan Co. v. Homner, 10 P. R. 030 ; Jiank of 
 Commerce v. Jenninijs, 7 C. L. T. 170. 
 
 The jurisdiction of the Referee under this section is limited to " inquiry and 
 report." Under the concluding clause of sub-sec. 1, it was formerly held that 
 the Court may accept the reiwrt wholly or ]>artially, or, if dissatisfied with the 
 princii)le upon which the Reieree has proceeded, may remit it to him for amend- 
 ment : Dunkirk Collier;/ Co. v. I^ver, 9 Ch. D. 20. It was there held also 
 that though the Court might under this section adopt the reiwrt, wholly or 
 partially, it could not alter or vary the rej^rt, any more than it could alter or 
 vary the verdict of a jury as to the amount of the damages^ and the L.JJ. 
 differed as to whether the Court might disregard the reiwrt if wrong in prin- 
 ciple and itself consider the evidence upon which it was founded. Subse- 
 quently the Rule corresmnding to Ont. Jiule 40 was i)assed, under which the 
 Court may itself decide tne question referred to a Referee, on the evidence taken 
 before him or with additional evidence : see alst) Be Jirook, 29 W. R. 821. It 
 is submitted that now, under Jiule 848, if the reiwrt becomes absolute the Court 
 will adopt it, uidess it is duly appealed against, and that the concluding clause 
 of sub-sec. 1 must be regarded as repealed (see 51 V. c. 2 a. 4) or as having 
 reference to what may be done where an api^eal has been taken from the 
 Referee. See also note to Rule 40. 
 
OFFICIAL REFEREES AMD A8BESSOR8. 
 
 97 
 
 Under this Huction all that can be referred is a question or (]|ue8tion8 in the geo. 101. 
 iittion and immt l)e a question or questions which must necessarily be decided in ^hat may 
 thf notion, not such as it may prove unnecessary to decide : Weed v. Ward, 40 be referred. 
 
 iKWii of the action, but to determine facts and reijort them '; tt) find the mate- 
 rials uiKrti whicii the Court is to act : Ldwjmun v. Knnt, sup.; Vuinmhii/a v. Low, 
 2 Ont. 5<tl. A question of liability, uiH)n which the risfht to an account 
 deiwndH, should be tried in the usual way : Want v. H(dl, W. N. 1880, 09 per 
 Cotton, L..T. ; Clmo v. Harper, 3 Ex. D. 198 ; more esjH-cially if it b«( a proper 
 (lutintion for a jury : Young v. I'rittie, Olobe, 19 April, 1882. Where a ques- 
 tion isdirt'ctly raised by the pleadings, and is distinctly presented to the Court 
 for its decision, and evidence has lieen taken upon it, it should not be referred 
 but should be disposed of by the Court : Jnternational Bridge Co. v. Canada 
 SinUhem Rij. Co., 7 Ont. App. 200 ; Smith v. Annilage, 24 Ch. D. 727. 
 
 This section contemplates an inquiry by examination of witnesses and not 
 by tlu' Referee's jiersonal observation only : /idruneim Menlock v. Jiivcr Dee Co., 
 19 (l B. D. IfW. 
 
 A fonn of order of reference under this section is given in the App. No. 139. Form of 
 It should express on its face that it is an order under this section for reference Order. 
 ad report: Ciimiiiingv. Low, 2 Ont. 505. A difficulty has been felt about 
 reserving further consideration, but if that cannot bo done dirt^ctly, the same 
 object can, where necessary, lie effected by making an interlocutory order of 
 nnen'iiue, and adjourning the further trial of the action till after the report 
 slmll U' iniule : see Ue Brook, W. N. 1880, 187 ; on fur. con. 29 _W. R. 821 ; 45 
 li. T. 172, 17 C. L. J. 391 ; or though the judgpient for the taking of accounts 
 may te a final decree, a motion for judgment in the nature of a judgment on 
 further directions may be made : Walker v. llunkell, 22 Ch. D. 722. 
 
 The Referee under this section must make a report to the Court : Cruik- Report, 
 shankn v. Floating Swimming Bath Co., 1 C. P. D. 200. The report must con- 
 tain the materials on which the Court is to act : Longman v. hast, 3 C. P. D. 
 149, with such facts and particulars as may be necessary in each case, to shew 
 on what tiie reix)rt is based, e. g., where damages have been assessed, and the 
 the principle upon which the assessment has oeen made ; Mayor of Binning- 
 hainv, Allen, W. N. 1877, 190; where accounts have been taken, not merehr 
 the result of them, but also which items have been allowed, and which disal- 
 lowed, should l)e made to apmar by the report : Burrard v. Calisher, W. N. 
 1882, 11; 30 W. R. 321; 45 L. T. 793; 51 X,. J. Chy. 223; 18 C. L. J. 180; 
 2 Ont. 165 ; Luney v. Essery, 10 P. R. 285. The evidence should not be 
 stated : Longman v. Kast, sup. ; see also Sovereign v. Soverei(/7i, 15 Gr. 559 : nor 
 the reasons for any findings : Dunkirk Colliery v. Lever, 9 Ch. D. 20, though the 
 Referee may doubtless be specially directed to do so where necessary : see 
 McCargar v. McKinnmi, 15 Gr. 301. 
 
 It is presumed that a Referee may, like a Master, report siiecially any cir- 
 cumstances which he deems necessary for the information of the Court, and 
 that he should do so as to any matter affecting costs : see Hayes v. Uayes, 29 
 Gr.90and/JMfe35. 
 
 When the conduct of an arbitrator would invalidate his report the like con- 
 duct on the part of a referee would be fatal to his report : see Conmee v. Ca^wdian 
 Pacific Ry. Co., 16 Ont. 639. 
 
 JJirfeo 34-40 provide for the mode of procedure by Referees. Ride 39 provides 
 for the submission by the Referee, in his report, of questions for the decision 
 of the Court. 
 
 As to the filing of the Referee's report, see Rule 84. 
 
 A report under this section formerly required to be adopted by the Court : Procedure 
 sf^Qmrdians of Mansfield v. Wright, per Jessel, M.R., 9 Q. B". D., p. «)86;to enforce. 
 MMer v. Pillimj, 9 Q. B. D. 738 ; but now, under Rule 848, it becomes abso- 
 lute at the expiration of 14 days from the filing unless duly apiiealed from. 
 J.A. 7 
 
 1 
 
 
 IF 
 
 t fSi 
 
 k 
 
 "■*- m 
 
 i 
 
 iM 
 
 1 
 
 
 1 
 
 'J^^9 
 
98 
 
 Sec. 102. 
 
 Ko lonper 
 state the 
 practice. 
 
 THE JUDICATURE ACT. 
 
 Judgment cannot be signed upon it, however, without a motion for judgment, 
 which is similar to the former motion for decree on further directions. It 
 is submitted also that notwithstanding the concluding clause of section 1 and 
 Miller v. Pilliny, 9 Q. B. D. 738, the Court is bound to adopt the rejxirt unless 
 duly appealed from under Rules 848 and 84{>; (see note supra) and that the 
 former decisions that the rei)ort may bo taken to the Court for judgment at 
 once without waiting for any lapse of time, and also without any motion to 
 confirm it, and that any party dissatisfied with tliL rejwrt may move to set 
 it aside or vary it at any time before or ujxjn the return of any motion for judg- 
 ment based uiKjn it, .o longer state the practice : see Ikaeon v. Ihilbi/, W. S 
 1882,8; 30 W.R. -'.17; 18 C. L.J. 180; Dunkirk O.llieri/ v. Lever,'u Ch. D 
 23; nurranl v. Vulisher, W. N. 1882, 29; 30 W. R. o40; 4« L. T. 341; 18 
 C. L. J. 261; Re 'l<v"k, Sykes v. Brook, 29 W. R. 891; 45 L. T. 172; 17 
 C. L. J. 391 ; Walker v. JimkeU, 22 Ch. D. 722 : Lrnei/ v. Ksseri/, 10 P. B. 
 Procedure 285. In llttmilUm v. Tweed, 9 Pr. R. 448, the analuf.'.> i;f a Master's rejiort was 
 to vary re- followed without objection in accordance with wli it is now, but was not then, 
 port. j,j^g practice. Two clear days' notice of a motioi', for judgment was fonnerly, 
 
 and IS still, sufficient : Re Brouk, sup. and Rule 47';*, but now 7 clear days' notice 
 of an appeal is required by Rule 849. In England a motion raising objections 
 to the report is generally begim by summons, but adjourned as a matter of 
 course into Court to be heard with the further consideration of the case : sec 
 the cases supra and Itc Krans, Owen v. Jirans, W. N. 1882, 37. In Ontario tb 
 motion will be made before a single Judge in Court : see Cumniinij v. Lok, 2 
 Ont. 505 ; Dowjlwi v. Ilutchiuson, (i Ont. 581. 
 
 It has been held that an ap])lication to review the finding of a Referee must 
 be supjKirted by evidence, on affidayit or otherwise, of the pnweedings before 
 him. Counsel who ajiiK'ared before him cannot move on his own statement ; 
 Stubbs V. Boijle, 2 Q. B. D. 124. 
 
 Power to 
 direct 
 trials be- 
 fore refer- 
 .ees. 
 
 102.— (1) In any cause or matter before the said High 
 Court, (1) in which all parties interested who are under no 
 disability consent thereto, and (2) without such consent in 
 any such cause or matter requiring any prolonged examina- 
 tion of documents or accounts, or any scientific or local 
 investigation which cannot, in the opinion of the Court or 
 a Judge, conveniently be made before a jury, or conducted 
 by the Court or Judge directly, the Court or a Judge may 
 at any time, on such terms as may be thought proper, 
 order any question or issue of fact, or any question of 
 account arising in the cause or matter, to be tried either 
 before a Judge of a County Court, or before an official 
 referee, or (if the parties so agree) before a special referee. 
 
 (2) All such trials before referees shall be conducted in 
 such manner as may be prescribed by Eules of Court, and 
 subject theieto in such manner as the Court or Judge 
 ordering the same shall direct. 44 V. c. 5, s. 48. 
 
 See Eng. J. A. 1873, s. 57. 
 
 Instead of the expression "the Court or .Judge directly," the English sec- 
 tion .57 has the woras "the Court through its otlier ordinary officers" as by a 
 recent change in the practice of the Court of Chancery in England references 
 had ceased to be made to a Master, and were conducted by a Chief Clerk under 
 the direction of the Judge. That change had not been followed in this 
 Province. 
 
OFFICIAL REFEREES AND ASSESSORS. 
 
 The English Act does not provide for a reference to or trial before a County Bee. 102. 
 
 Court Judge. 
 
 As to the scope of this section see prefatory note to sec. 101. 
 
 Tli'> Master in Chambers and Local Judges have no jurisdiction to order a 
 reff*rence under this section : White v. Bccmer, 10 P. R. 531 ; Union Loan v. 
 Boomer, 10 P. R. 030 ; Bank of Commerce v. Jenniwjs, 7 C. L. T. 170. 
 
 A reference to a siiecial Referee under the last clause of sub-section 1 is only 
 (iixlered on consent : see London cfc Lancashire F. Inn. Co. v. Britinh American 
 Ai^s. Co., 52 L. T. N. S. 385 ; 54 L. J. Q. B. 302, where the extra costs of a trial 
 before an official Referee instead of a special Referee to whose apiM)intment 
 defendants refused to consent, were reserved. 
 
 Under tiiis section, the Court, or a Judge at Nisi Prius, or a circuit sitting What may 
 of the High Court : Hoch v. Boor, W. N. 1880, i)3 ; 43 L. T. 425 ; 49 L. J. Q. B. be referred. 
 CiOj • niivv send, where the parties have consented, not the wh(jle action : Low/- 
 mm V. Eud, 3 C. P. D. 142 ; Brwjinton v. Yuten, W. N. 1880, 150 ; Chirry v. 
 /}. N. Ann. Co., 12 P. R. .357 ; but any question or issue of fact to an official 
 Referee for trial. Where an order is made without consent, the Court can only 
 wncl sucli tpierttions as are brought within the terms of the section, that is any 
 issue retiuiriUp' i)rolonged examination of documents or accounts, etc., which in 
 the judicial ojiinion of the .fudge cannot conveniently be made before a jury or 
 conducted by the Court or J udge directly : Lon(iman v. East, Hoch v. Boor, 
 Hup. But if a case is once brought within the section by reason of a prolonged 
 examination of documents, etc., being involved, the Court may refer not only 
 the questions of acoount, but all issues of fact in the cause : Ward v. Pilley, 
 5 (i. B. D. 427, 431 ; Miller v. Pillingj 9 Q. B. D. 738 ; Knif/ht v. Cuales, 
 19 Q. B. D. 296 ; though the question m dispute does not consist entirely of 
 matters of account : Martin v. Fife, 31 W. R. 840 ; 49 L. T. N. S. 107 ; Goodwin v. 
 BiKktcn, 42 L. T. N. S. .536 ; as where issxies of fact were so mixed up with matters 
 of account, that they could not practically be dissevered : Lomiman v. East, 
 3 C. P. D. 150 ; Ward v. Hall, W. N. 1880, 69. It is probable, however, that 
 where tliere is a substantial question of liability upon which the taking of 
 accounts depends, to be detennined, it will first be determined in the ordinary 
 way : Clow v. Harper, 3 Ex. D. 198 ; Ward v. Hall, W. N. 1880, 69 ; Weed v. 
 
 Ward, 40 Cli. D. 555. 
 
 "Prolonged" means prolonged if had before a jury, not if had before a 
 skilled accountant : Ward v. Pilley, 5 Q. B. D. 428 ; and the documents are such 
 as it would be necessary to inquire into, in order to leave the question proiierly 
 to the jury, not such aa require examination to determine a question of legal 
 right : Ormcrml v. Todmorden, 8 Q. B. D. 664, 677. Reading a lot of letters is 
 not a prolonged examination of documents : Green's Trustee v. Barrett, W. N. 
 1875, 204. 
 
 The expression, "question of account,"' will receive a large construction: 
 Re Leiiili, 3 Ch. D. 2i)2 ; and any question of account which might have been 
 compulsorily referred under the C. L. P. Act (see R. S. O. 1887,c. 50, ss. 189 
 and 105), may be compulsorily referred under this section : Ward v. Pillet/, 
 5Q. B. D. 427. 
 
 Inacase uivolving a critical knowledge of pictures, the Court of Aj)peal refused 
 to send the case for trial l)efore a special Referee against defendant's will, as 
 the for' .e and chanict':'r of the defendant wei"e involved, and he was entitled 
 to liave tlie matters of fraud charged tried in a public Court : Leigh v. Brooks, 
 5 1'h. D. 502. But even where there are questions of fraud there is no inherent 
 right to a trial by jury, and in such a case if the issues involve a prolongetl 
 examination of documents or accounts th>?y may be compulsorily referred : 
 Hoch V. Bmr, W. N. 1880, 93 ; 43 L. T. N. S. 425 ; ikicker v. Ragozine <fc Co., 44 
 L. T. N. 8. 308. 
 
 A question of damages consisting of various items in an action for injuries 
 caused to a vessel by defendant's negligence : Liverpool, etc. Co. v. London 
 Nnvi()alion, W. N. 187.5, 203; issues of fact in a patent case requiring "scientific 
 investigation" ; Haxhy v. Gloucester Waggon Co., W. N. 1880, 28; and d.im.ages 
 

 100 
 
 THE JUDICATURE AOT. 
 
 Order. 
 
 8e& 103. in an action for speoiiio performance : Stafford v. Coxon, W. N. 1877i '38; were 
 ordered to be assessed by a Referee. 
 
 An order made under this section by a Judge in his discretion is apiKJalable: 
 Ormerod v. Todnwrden, etc., 8 t^. B. D. 664 ; Uoch v. Boor, W. N. 1880, 93; 
 43 L. T. 425. But as a rule the Court of Api)eal is disinclined to interfere 
 with the exercise of a discretion : San^y v. Gloucester Waggon Co., W. N. 
 1880, 28. 
 
 A form of order is given in the App. No. 140. It should, as intimated in 
 Longman v. East, 3 C. P. D. 163, point out that it is an order under this section 
 for issues to be tried, and should state whether all the issues are to be tried, or, 
 if only certain issues, it should state by some sufficient description what those 
 issues are : Gumming v. Loto, 2 Ont. 505. 
 
 In Cardinall v. Cardinal/, 25 Ch. D. 777, Pearson, J., said "it was not 
 intended that Official Referees should decide the issue in an action; it was 
 only intended that they should ascertain the facts so as to enable the Courts to 
 decide the issue." This language seems applicable rather to a reference under 
 section 101. The Referee under section 102 tries and decides, as a jury would, 
 any issue referred to him, and his report is under section 103 equivalent to a 
 verdict of a jury. 
 
 Bules 34, 37 regulate the procedure on a trial before a Referee. 
 
 As to the powers of Referees, see Rule 552. 
 
 Bule 39 provides for the submiision of questions to the Court by the Referee 
 before the conclusion of the trial before him, or by his reijort. 
 Beport. The report of a Referee under this section should state his conclusions upon 
 
 the issues referred, and he is not bound to give reasons for his findings : MUkr 
 V. Pitting, 9 Q. B. D. 736 ; see also Lowjman v. East, 3 C. P. D. 1.55 ; Fatccetl 
 v. Winters, 12 P. R. 232. Under Rule 39 the Court has ixnv^r to obtain any 
 explanation or reasons as to the principles upon which the Refei -le has rested 
 his conclusions (lb). 
 
 For an example of scientific or local investigation by a Referee, se.-^ Brodcr 
 V. Saillard, 2 Ch. D. 692. 
 
 The report of a Referee under this section is by sec. 103 equivilent to the 
 verdict of a jury. It would seem, however, to be subject to Rule 848 ar.d notice 
 of any motion against it must be given within 14 days from its filing 
 
 i 'i.dgment. An Official Referee has, however, no power to order judgment to bt entered : 
 Longman v. East, 3 C. P. D. 142. The rej)ort must be brought before the Court 
 on motion for judgment, when the Court will give judgment as formerly in 
 Chancery upon the report of a Master ; Lonqman v. East, sup,; Dmcmi v. 
 Dolbv, W. N. 1883, 25 ; Miller v. Pillini/, 9 C^. B. D. 736 ; Monro v. ReiMl, 
 W. N. 1878, 41 ; Walker v. Bunkell, 22 Ch. D. 722. The motion is made to a 
 single Tudge sitting in Court : see Cumming v. Low, sup. 
 
 Such matters as that the report is imiMsrfect or in excess of jurisdiction m«jr 
 be urged in opposing a motion for judgment : Cooke v. Newcastle, 10 Q. B. D. 
 336. 
 
 As to moving against the report see sec. 103. 
 
 Where a referee held that there was a want of reasonable and probable cause 
 for the defendant's proceeding criminally against the plaintiff, and it was 
 objected that this was a finding of law and not of fact, it was held to be equiva- 
 lent to a verdict for plaintiff rendered by a jury under instructions from the 
 Judge as to what would be reasonable and probable cause : Faiccett v. Wintert, 
 12 P. R. 232. 
 
 Power ol 
 referees 
 and effect 
 of their 
 flndings. 
 
 103. In all cases of a reference to or trial by referees 
 under this Act, the referees shall be deemed to b<^ officers of 
 the Court, and shall have such authority for the purpose of 
 
 the reference or trial as shall be prescribed by Rules of h ,j^^^ • . 
 
 Court, or (subject to such Rules) by the Court or Judge ■ "farbit*SirbJ*I 
 
 ordering su 
 referee upon 
 unless set a 
 of a jury. ^ 
 
 Same as the E 
 
 The last clause 
 under section 10! 
 
 The Referee re 
 
 effect as the verd 
 
 Court : Miller v. 
 
 section merely de 
 
 make it neccssar 
 
 move against the i 
 
 as in the case of n 
 
 under Rule 848 wi 
 
 any ground ui)on 
 
 11 Q. B. D. 180 ; 
 
 .W3; (I'liiirdiuiin oj 
 
 The former deci 
 
 ClUUH'lh 11 (l B. 
 
 325 ; 50 L. T. N. 
 are overruled by 1 
 The motion to s* 
 Court: Ciinke v. / 
 will be iH'fore a s 
 P. R. 103; 8ee7f« 
 on the report : Cu 
 V. Wright, !) Q. fi. 
 
 104. With 
 referees and t( 
 in addition tc 
 The Act respec 
 the High Cou 
 and proceed in 
 appeals therefr 
 
 It is not clear to \ 
 550 provides that tl 
 C; 2, 8. 4, confirmed 
 Key. Statutes. Ritl 
 IH)wertorefer toarl 
 Act) Certain si-ction 
 references to arbitra 
 may lK)88ibIy be app 
 enforce rejwrts after 
 f), the issuing of su 
 however, to see hov 
 exercised under the 
 I'll references being i 
 
 Incase all the jki 
 RS.O.C..53.8S. 4« 
 also be possible to in 
 tion the reiK).t of a I 
 
 agi 
 
OFFICIAL REFEREES AND REFERENCES. 
 
 101 
 
 ordering such reference or trial ; and the report of any 8«c. lo*. 
 referee upon any question of fact on any such trial shall, 
 unless set aside by the Court, be equivalent to the verdict 
 of a jury. 44 V. c. 5, s. 49. 
 
 Same as the Eng. J. A. 1873, s. 58. 
 
 The last clause of this section refers to reports made on a reference for trial 
 under section 102. 
 
 The Referee reports his conclusion to the Court, and it has the same binding 
 effect as the verdict of a jury. The judgment is, however, to be given by the 
 Court: MiUev\. Pillinif, Q. B. D., p. 738. The concluding words of the 
 section merely deal with the binding effect of the Referee's findings, and do not 
 make it iiect'ssary (notwithstanding Sullivan v. Rivinfjton, 28 W. R. 372) to 
 move against the rejMjrt by the same mode of procedure, or within the same time, 
 as in the case of a verdict of a jury. The proi)er course is to move upon notice 
 under Rule H48 within 14 days from the date of the filing of the reiwrt, upon 
 aiiv ground upon which the verdict of a jury may l)e set aside : ]>ifk« v. t'annell, 
 ll'Q. B. D. 180; Mil/crv. /'illini/, !» Q. B.'D. 739; Cummin!) v. Loiv, 2 Ont. 
 .503; <Umnliatis of Manxjield V. Wright, 9Q. B. D. 08(5. 
 
 The former decisions as to the time of moving against a report : see Dyke v. 
 i'ltniifll, mi B. D. 183; Jicdboiviy/i v. Anni/ and yavy Hotel, 28 Sol-Jour. 
 325; 50 L. T. N. S. 173 ; .53 L. J., Chy. ()58; Litneyv. Essery, 10 P. R. 285, 
 .we overruled by Hide 848. 
 
 The motitm to set aside a rejwrt must, in England, be made to the Divisional 
 Court: Ciinke v. Xewcastle, etc., 10 Q. B. D. 332; but in Ontario the motion 
 will be before a single .Tudge in Court : I/ill v. iV. Pacific June. liy. Co., 11 
 P. R. 103; see Rule 219, and sec. (il, as in the case of a motion for judgment 
 on the report : Cummim/ v. Low, sup. 505; Huardiann of Mansfield Union 
 V. Wright, !) Q. B. D. 083 ; Jkacon v. Jiolby, W. N. 1883, 25. 
 
 104. With respect to all such proceedings before 
 referees and to their reports, the Court or Judge shall have, 
 in addition to any other powers, the like powers as by 
 The Act respecting Arbitrationa and Referencen are given to 
 the High Court with respect to references to arbitration 
 and proceedings before arbitrators and their awards and 
 appeals therefrom respectively. 44 V. c. 5, s. 50. 
 
 It is not clear to what extent this section is now capable of application. R^de 
 550 provides that the Court will not refer to arbitration. Tne statute 51 V. 
 c. 2, 8. 4, confirmed the Rules and rejiealed any inconsistent enactments in the 
 Rev. Statutes. Rule ,'550 would therefore .seem to have effected a rejieal of the 
 lK)wer to refer to arbitrators conferred by R, S. O. 1887, c. .53. (See sec. 7 of that 
 jVct) Certain sections of o. 53, giving i)owers to the Court or .Judge in resjiect to 
 references to arbitration, and proceedings before arbitrators, and their awards, 
 may jxMisibly be applied under the above sec. 104. For example, the power to 
 enforce reiwrts after (i days (sec. 34), the power to remit the matter (sees. 4 and 
 37), the issuing of subixBnas (sec. 4<i), and commissions (sec. 49). It is diiKcult, 
 however, to see how some at least of these jwwers are not capable of being 
 exercised under the Rides without the assistance of the sections just mentioned, 
 all references being now merely proceedings in an action. 
 
 In case all the jKJwers conferred in respect to ap|)eals from arbitrators by 
 R. S. 0. c. .53, Bs. 4 and 7 (2), are not as effectually given by the Rules, it may 
 also be possible to invoke those sees, in order to amend or remit for reconsidera- 
 tion the reix>it of a Referee. 
 
 The amendments to R. S. O. c. 53, made by 52 V. c. 13, apply only in cases 
 of arbitrations by agreement and submission, not in an action. 
 
 Powers of 
 Court with 
 respect to 
 proceed- 
 niKB before 
 referees. 
 
 Kav. Stat, 
 c. 53. 
 
102 
 
 THE JUDICATURE ACT. 
 
 Sea lOB. KULES OF COURT. 
 
 The result of sections 105 to 108 in the present Act is, that since the Act 
 went into operation the power of making rules is as follows : 
 
 (1) Rides may be made by the Supreme Court for governing its several 
 Divisions (sec. 105). 
 
 (2) Subject to any such Rules of the Siiiireme Court, the Judges of tho 
 Court of Appeal may make Muies for that Court, and the Judges of the Hiffh 
 Court may make Rules for the High Court (sees. 106 and 107). The English 
 Acts do not give any such power to the Judges of the High Court. The Act 
 of 1870, sec. 15, gives power to the President of the Court of Appeal, with the 
 concurrence of the ordinary Judges of the Court of Appeal, or any three of 
 them, to make Rules as to the Court of Apjjeal. 
 
 (3) The Lieutenant-Governor may authorize the three Chief Justices and the 
 Chancellor to make Rules ; and Rules so made are to have the same effect as if 
 made by all the Judges of the Supreme Court : sec. 108. 
 
 judgeaof 103. — (1) The Supreme Court may at any time, with 
 court°maythe concurrence of a majority of the Judges thereof present 
 Ruiel at any meeting held for that purpose, alter and annul any 
 Eules of Court for the time being in force, and may make 
 any further or additional Rules of Court for carrying this 
 Act into effect, and in particular for all or any of the fol- 
 lowing matters that is to say : — 
 
 (a) ^'or regulating the sittings of the High Court of 
 Justice and the Court of Appeal, and of any 
 Divisional or other Courts thereof respectively, 
 and of the Judges of the said High Court sitting 
 in Chambers ; 
 
 {h) For regulating the pleading, practice, and pro- 
 cedure in the High Court of Justice and Court 
 of Appeal ; 
 
 See Eng. J. A. 1875, s. 17. 
 
 The Court of Appeal and the High Court have each additional Rule-making 
 powers. See ss. 106 and 107. 
 
 (c) For the hearing of appeals from County Courts, or 
 a Judge of a County Court, from Provisional 
 Judicial District Courts or a Judge of such 
 Court, from Surrogate Courts, Stipendiary 
 Magistrates, or Division Courts, by any two or 
 more of the Judges of the Supreme Court, 
 instead of the same being heard by the Court 
 of Appeal, or a Judge thereof, (as the case 
 may be) ; and for regulating the selection of 
 the Judges of the Supreme Court, who shall 
 
 There is no clai 
 
 See Rules 30-33 a; 
 
RULES OF COURT. 
 
 108 
 
 hear such appeals, and for regulating allsacios. 
 matters relating to the practice on such appeals; 
 44 V. c. 6, 8. 54 (1 a-c. 3). 
 
 There is no clause similar to this in the Eng. Jud. Acts. 
 
 [d) For empowering the Master in Ghamhers, or any to em- 
 
 referee sitting for him, or the Judges of the ter^n' 
 County Courts, other than the Judge of the ^tc* to^^"' 
 County of York, or the Local Masters in respect f^% 
 of actions brought in their counties to do any 
 such thing, and to transact any such business, 
 and to exercise any such authority and juris- 
 diction in respect of the same as by virtue of 
 any statute or custom, or by the rules of 
 practice of the High Court, are now or may be 
 hereafter done, transacted or exercised by a 
 Judge of the High Court sitting at Chambers, 
 and as shall be specified in any such rule, 
 except in respect of matters relating to — 
 
 1. The liberty of the subject; 
 
 2. Appeals and applications in the nature of 
 
 appeals ; 
 
 3. Proceedings under The Act respecting v^'t- stat. 
 
 Lunatics ; 
 
 4. Applications for advice under the Trustee Revjstat. 
 
 Acts ; 
 
 5. Matters affecting the custody of children ; 
 
 and 
 
 6. Proceedings under section 32 of this Act. 
 
 R. S. 0. 1877, c. 39, ss. 29 and 32 ; c. 40, 
 8. 28 ; 48 V. c. 13, ss. 13, 21. 
 
 See Rales 30-33 and notes. 
 
 (e) Generally, for regulating any matters relating to 
 
 the practice and procedure of the said Courts 
 respectively, or to the duties of the officers 
 thereof, or of the said Supreme Court, or to 
 the costs of proceedings therein (a) ; and 
 every other matter deemed expedient for the 
 better attaining the ends of justice, advancing 
 the remedies of suitors, and carrying into effect 
 
104 THB JUDICATURE ACT. 
 
 See. loe. the provisions of this Act and of all other 
 
 Acts now or hereafter in force respecting the 
 said Courts. 44 V. c. 5, s. 54 (1 d). 
 
 (a) What follows this is not taken from the English Acts but from R. S. 0. 
 1877, c. 49, 8. 45 (7). 
 
 (/) Subject to the approval of the Lieutenant-Gover- 
 nor in Council, to make rules from time to 
 time regulating all fees payable in stamps. 
 44 V. c. 6, s. 54 (2). 
 
 See tho Tariff, post, 
 
 i' ilr 6 i-eqiii-y* that new Rules shall be published in the Ont. Gazette for? 
 days I 'irfl C( • into force, unless the publication is expressly disi^nsed 
 with, 
 
 (2) Where any provisions in respect of the practice or 
 procedure of any Courts, the jurisdiction of which is vested 
 by this Act in the High Court, are contained in any 
 Statute, Rules of Court may be made for modifying such 
 provisions to any extent that may be deemed necessary for 
 adapting the same to the High Court, unless, in the case of 
 any Act hereafter passed, this power shall be expressly 
 excluded. 44 V. c. 5, s. 54 (6). 
 
 To the same effect is Eng. J. A. 1875, s. 24. 
 
 The operation of this section is probably now very limited, as nearly all the 
 statutory enactments regulating practice and procedure in any of the Courts 
 existing prior to Ont. J. A. 1881, whose jurisdiction is now vested in the 
 High Court were, at the time of the Revision of the Statutes in 1887, intended 
 to be embodied in the Consolidated Rules, 
 
 (3) Any provisions relating to the payment, transfer, or 
 deposit into, or in, or out of any Court of any money or 
 property, or to the dealing therewith, shall, for the pur- 
 poses of this section, be deemed to be provisions relating 
 to practice and procedure. 44 V. c. 5, 54 (7). 
 
 Taken from Eng. J. A. 1875, s. 24. 
 
 (4) All Bules of Court made in pursuance of this section 
 shall from and after they come into operation, regulate all 
 matters to which they extend, until annulled or altered in 
 pursuance of this section. 44 Y. c. 5, s. 54 (4). 
 
 Taken from Eng. J. A. 1878, s. 17. 
 
 co^rfof' 106. Subject to any Rules of Court which may be made 
 
 Appeal under the provisions of the preceding section the Judges of 
 
 naea.™*''* the Court of Appeal or a majority of them, may from time 
 
 to time make such General Bules and Orders, for fixing 
 
RULES OF CGUKT. 
 
 105 
 
 the costs to be allowed in respect of proceedings in the 8«««- vn- 
 said Court, and for regulating the diiferent proceedings in 
 appeal, and generally for the effectual execution of this 
 Act and the intention and object thereof in regard to the 
 practice in appeals as to them may seem expedient ; and 
 may also from time to time alter and amend any of the 
 existing Eules, or any Rules made under the authority of 
 this Act, and make other Rules instead thereof; and until 
 such Rules are made, the present Rules and the existing 
 practice and mode of proceeding in the Court shall continue 
 in force. See R. S. 0. 1877, c. 38, s. 56 ; 44 V. c. 5, s. 54 (6). 
 
 107. The Judges of the High Court or any four of them Judges of 
 of whom two of the Presidents of the Divisions of the High may make 
 Court shall be two, shall as regards matters in the High '"•"*• 
 Court have power to make General Rules from time to 
 
 tiine for the regulation of the practice of the High Court. 
 R. S. 0. 1877, c. 49, s. 45 ; 44 V. c. 5, s. 54 (5). 
 
 108. The Lieutenant-Governor in Council may fro^ ernoJjn"^' 
 time to time authorize the following persons, viz., thecouncu 
 Chief Justice of Ontario, the Chief Justice of the Queen's aJTthorize 
 Bench, the Chancellor, the Chief Justice of the Common 5^'^'*^^ ^^ 
 Pleas, and any one or more of the other Justices of the make 
 Supreme Court, to make Rules of Court under this Act ; 
 
 every such appointment to continue for such time as shall 
 be specified by Order in Council, and the Judges so 
 appointed, or any three of them, may make such Rules, 
 and the same shall have the same effect as if made by all 
 the Judges of the Supreme Court, under section 105. 
 44 V. c. 5, s. 56. 
 
 109. A Council of the Judges of the said Supreme Court, 5'ua°*'''to' 
 of which due notice shall be given to ail the said Judges, conSder" 
 shall assemble once at least in every year, on such day or aadfldm^u- 
 days as shall be fixed by the Lieutenant-Governor, for the juatjce" °^ 
 purpose of considering the operation of this Act and of the 
 
 Rules of Court for the time being in force, and also the 
 working of the several offices and the arrangements rela- 
 tive to the duties of the officers of the said Courts respec- 
 tively, and of inquiring and examining into any defects 
 vhich may appear to exist in the system of procedure or 
 the administration of the law in the High Court of Justice 
 or the Court of Appeal, or any other Court, or by any other 
 
 
 1 i , 
 
loy 
 
 sec. 110. 
 
 THE JUDICATURE ACT. 
 
 authority ; and they shall report annually to the Lieuten- 
 ant-Governor what (if any) amendments or alterations 
 it would in their judgment be expedient to make in 
 this Act, or otherwise relating to the administration of 
 justice, and what other provision (if any) which cannot be 
 carried into effect without legislative authority it would be 
 expedient to make for the better administration of justice; 
 an Extraordinary Council of the said Judges may also at 
 any time be convened by the Lieutenant-Governor. 44 V. 
 c. 5, s. 56. 
 
 This section corresjwnds with the Imp. enactment J. A. 1873, s. 75, except 
 that, instead of the Lieutenant-Governor fixing the day for the annual assem- 
 bling of the Council, that office is to be performed by the Lord Chancellor with 
 the concurrence of the Lord Chief Justice of England ; that, instead of the 
 report being to the Lieutenant-Governor, the report is made to one of Her 
 Majesty's principal Secretaries of State ; and that, instead of an extraordinary 
 Council being convened by the Lieutenant-Governor or the Chief Justice of 
 Ontario, such Council is to be convened in England by the Lord Chancellor. 
 
 In the edition of the Judicature Acts by Sir W. T. Charley, M.P., p. 129, it 
 is said of this section that, "it is calculated to produce the most lieneficial 
 effects, by breaking down the barrier of prejudice which still subsists, it is to 
 be feared, between the sages of Equity and of the Common Law. Viewed in 
 the light of this section the Supreme Court is a deliberative assembly." In 
 another text-book it is said that "the Judges are constituted a standing com- 
 mission on law and justice," (Lely & Foulkes, p. 57). ' 
 
 Provision IIO' SavG 88 by tliis Act or by any Eules of Court may 
 
 o^ox'istiifg be otherwise provided, all forms and methods (as nearly as 
 
 w'i^ei^enoli ^^Y hc) of proccdurc which, prior to the 22nd day of 
 
 teutwitii August, 1881, were in force in any of the Courts whose 
 
 this Act or jurisdiction then became vested in the said High Court, 
 
 Court." under and by virtue of any law, general order, or rule 
 
 whatsoever, and which are not inconsistent with this Act 
 
 or with any Kules of Court — may continue to be used and 
 
 practised in the said High Court of Justice, in such and 
 
 the like cases, and for such and the like purposes, as those 
 
 to which they would have been applicable prior to the said 
 
 date in the respective Courts of which the jurisdiction 
 
 became so vested. 44 V. c. 5, s. 52. 
 
 This section is taken substantially from Imp. Act of 1875, s. 21, which uses 
 the word "transferred" instead of "vested. That section was substituted 
 for section 73 in Imp. Act of 1873, and it refers to the Court of Appeal as well 
 as the High Court. 
 
 See also sees. 42, 53 (12) and 110. 
 
 This section must be taken to have been greatly modified by Rule 3j which 
 provides that as to all matters not provided for in the Rules, the practice is to 
 be regulated by analogy thereto instead of as alwve mentioned b;y the practice 
 prior to the Jud. Act 1^1. There were, however, priortothe passing ox BuM, 
 a number of decisions establishing the practice to be observed under the Jud. Act 
 in certain matters in respect of which the Rules under the Juc^ ict were silent, or 
 
 ,1875, 220; Leirnimi' 
 
OFFICERS AND OFFICES. 
 
 107 
 
 the practice of the pre-exiating Courts was conflicting. Thene will still regu- 8eo. 111. 
 late the practice under the present RuleH and are referred to below. 
 See also notes to Rule 3. 
 
 As to how far the pre-existing procedure was to be considered to be in force, Two can- 
 the following two canons or rules were laid down by Brett, L.J., in Jackson v. ous as to 
 Litchfield, 8 Q. B. D. 477 :— The effect of the Judicature Act is that (1) in all pro-exist- 
 cases which are not provided for by the Act the proceedings are to be as they !,'Iju,fg' 
 were tefore the Act, and (2) in all cases within the Judicature Act, where no 
 sijecial steps in proceedings are provided, the proceedings are to be as nearly 
 like as they can ue to analagous pnweedings l)efore the Act : see also National 
 Funds As.s. Co., 4 Ch. D. 307 ; Strar v. Lawnon, 2J» W. R. 100 ; Boddy v. Wall, 
 7 Ch. D. W) ; Fowler v. Barntoiv, 2('» Sol. Jour. 9(J ; Bu»tro» v. White, 1 Q. B. 
 D. 423. This is true as to rules of i>leading as well as in matters of practice : 
 Evaiu V. Buck, 4 Ch. D. 434. 
 
 In cases within the first canon if the appropriate proceedings, and in cases First 
 within tiie second canon, if the special steps, were fonuerly similar in Chancery cunou. 
 and at Common Law there is no difficulty ; but in cases where no rule of prac- 
 tice was laid down by the new Rulvit, and there was a variance in the old jjractice 
 of the Chancery and Commtm Law Courts, it has been decided, under the 
 carresiKinding section in England, that that practice is to prevail which is con- Variances 
 sidered by the Court most convenient : Ni'wbi'i<iin-h>j-the-Hca (!a» Compaiii/ v. o.' "•'' prac- 
 ArmstruiKi, 13 Ch. I). 310 ; Ifurgc v. Jjiirnford, ik, 7i>H ; Ladrawje v. Mc- '"^^''• 
 Andrew, 4 (^. B. D. 210 : Thomax v. Palin, 21 Ch. D. 3C7 ; Bell v. Wilkinson, 
 W. N. 1878, 3; Fricadlij v. Carter, Pr. R. 41 ; Re Fitzijerald, 10 P. R. 279 ; 
 Stewart v. Sullivan, 11 P. R. .520 ; apparently overruling on this point somo 
 cases which applied sec. .53 (12) to matters of practice as well as of substantial 
 law ; see Urant v. Holland, 3 C. P. D. 180, and notes to sec. 53 (12) ; see also 
 Davis V. Wickson, 9 Pr. R. 219; Bank of B. N. A. v. Eddy, 9 Pr. R. 390; 
 Wihon v. CoK-an, 19 C. L. J. 140; 3 C. L. T. 21<i. 
 
 Though the appropriate and convenient i)roceedings are to be found in the 
 practice of one only of the former systems of procedure, they may be applied 
 m all the Divisions of the High Court : Dohson v. Marshall, 9 P. R. 1 ; Londmi 
 <t Canadian, etc. v. Merritt, 32 C. V. 379 ; Clarbrowih v. Toothill, W. N. 1881, 
 110 ; 50 L. J., Ch. 743 ; 18 C. L. J. 101 ; and see Davis v. Wickson, 9 Pr. R. 
 219. 
 
 Some proceedings under one of the former systems, and not referred to in old prac- 
 the Jud. Act, have been held to be not now in force as being not convenient ; tico abro- 
 c. g., a Term's notice is not now necessary where neither party has taken a t,'ated. 
 step for a year : Beaver v. Boardman, 9 Pr. R. 239, and a side bar rule for 
 costs of the day cannot be had where plaintiff gives notice of trial but does not 
 enter the case : Hopkins v. Smith, 9 Pr. R. 285. 
 
 The following are instances, under the second canon, of cases where, in the Second 
 absence of provisions for siKtcial steps or practice under the Jud. Act, the canon, 
 proceedings prescribed by the Act may be supplemented from the former 
 practice where appropriate and convenient : — The Chancery practice governing 
 the time for apj)lying for interim alimony : Peck v. Peek, 9 Pr. R. 299 ; relating 
 to motions to dismiss for want of prosecution : Bucke v. Murrai/,9P. R. 195; the Supple- 
 appointment of guardians ad litem tu infant defendants out of the jurisdiction : uiontary 
 Rew V. Anthony, 9 Pr. R. 545 ; substitutional service of process or documents procedure 
 other than writs of summons : Dohson v. Marshall, 9 Pr. R. 1 ; and the prac- "'°>n "l" 
 tice on apjjeal from a Master's reiwrt : Walmsley v. Mundy, 13 Q. B. D. 807. !"*''"•'«• 
 See also Clarlmrowih v. Toothill, Sup. ; Cooke v. Oceanic Steam Co., W. N. 
 .1875, 220; Laminr/'v. Gee, W. N. 1878, 240; Reiiina v. O'Rourke, 32 C. P. 
 388. 
 
 OFFICERS AND OFFICES. 
 
 1 11. — (1) The Lieutenant-Governor in Council may from lugisirar 
 time to time appoint a suitable person to be the Registraipohuedfor 
 
 t'lpr? 
 
 of the Court of Appeal. 
 
 the Court 
 of Appeal. 
 
It V 
 
 ? « '.: 
 
 108 
 
 THE JUDICATURE ACT. 
 
 8eos. 112- (2) The said Registrar shall not take for his own use or 
 "Jtsof benefit, directly or indirectly, any fee or emolument save 
 re*gi8trarto the Salary to which he is entitled by law ; and all fees re- 
 of'con"* ceived by him on account of the said ofiQce shall form part 
 Kev. Fund, ^j ^^^ Consolidated Revenue Fund, and shall be payable 
 Bev. Stat, in stamps, subject to The Act respecting Law Stamps. 
 ''•'^ R. 8. 0. 1877, c. 38, s. 11. 
 
 Appoint- 
 ment of 
 Ma<iters, 
 etc 
 
 Appoint- 
 ment of 
 Cleric of 
 Process, 
 etc. 
 
 Duties. 
 
 112. — (1) The Lieutenant-Governor may from time to 
 time appoint a Master in Ordinary, a Master in Chambers, 
 an Accountant of the Supreme Court and two or more 
 Taxing Officers. R. S. 0. 1877, c. 40, s. 8 ; 44 V. c. 5, 
 Rule 438. 
 
 (2) Subject to Orders of the Lieutenant-Governor in 
 Council, the said officers and the Local Masters shall be 
 officers of the Supreme Court and attached thereto. 44 
 V. c. 5, s. 58 (2). 
 
 By order of the Lieutenant-Govenior in Council of 22nd May, 1880, the 
 Master in Ordinary and Local Masters were constituted officers of the High 
 Court. 
 
 113* The Lieutenant-Governor may from time to time 
 appoint one Clerk of the Process for the High Court, one 
 Registrar for each of the Divisions of the High Court; 
 and one Clerk of Records and Writs and one Assistant 
 Registrar, to be attached to the Chancery Division ; and 
 also such other clerks and officers as the business of the 
 Court may, from time to time, require ; and such officers and 
 clerks shall, in addition to any of the duties usually per- 
 formed by the like officers and clerks, perform such duties 
 as may by Rules of the Supreme Court or the High Court 
 be provided, or as the Division of the High CoUi't to which 
 such officers are attached, may from time to time direct. 
 R. S. 0. 1877, c. 39, s. 36 ; c. 40, s. 8. 
 
 SeeEnp. J. A. 187 
 
 remain *° H-*'— (1) Subject to Orders of the Lieutenant-Governor 
 attached to in Council all officers attached to the various Divisions of 
 «rai diw- the High Court shall remain and continue to be attached 
 *'°°^- to the Divisions respectively to which they are now 
 attached. 44 V. c. 5, s. 58 (1). 
 
 Compare Eng. Rules S. C. 1876, Order 60, r. 1. 
 
 (2) Where a doubt exists as to the position under this 
 Act of any existing officer attached to any Court or Judge 
 
OFFICERS AND OFFICES. 
 
 109 
 
 affected by this Act, such doubt may be determined by *^ ii»- 
 Rule of Court. 
 
 (8) The Lieutenant-Governor in Council shall have the 
 power and (subject to any Order in Council) the Judges of 
 the said Supreme Court shall have power to change the 
 official names of offices and officers, and to change and 
 regulate the duties of the officers. 44 Y. c. 5, s. 58 (4). 
 
 See Eng. J. A., 1879, a. 24. 
 
 115. Subject to any Order in Council in that behalf, theD^^stribu- 
 business to be performed in the High Court and in the business 
 Court of Appeal respectively, or in any Divisional or other oSoerl 
 Court thereof, or in the chambers of any Judge thereof, 
 other than that performed by the Judges, shall be 
 distributed among the several officers attached to the said 
 Courts by the preceding section in such manner as may 
 be directed by Rules of Court ; and such officers shall 
 perform such duties in relation to such business as may be 
 directed by Rules cf Court ; and, subject to such Order in 
 Council and Rules of Court, all such officers respectively 
 shall continue to perform the same duties, as nearly as 
 may be, and in the same manner as if this Act had not 
 ' 44 V. c. 5, s. 59. 
 
 MsMs 
 
 SeeEnR. J. A. 1873, 8. 77. 
 
 116.— Orders made by the Master in Chambers, or 
 other officer mentioned in sub-section (d) of section 105, 
 shall be as valid and binding on all parties concerned as 
 if made or given by a Judge in Chambers. R.S.O. 1877, 
 c. 39, s. 31 ; c. 40, s. 29. 
 
 117. — (1) Every officer of the Court hereafter appointed ^^^^ 
 before he enters upon his duties shall take and subscribe ° 
 the following oath : 
 
 "hA.B.ot- 
 
 —, do hereby solemnly swear that I will, according to 
 the best of my skill, learning, ability and judgment, well and faithfully 
 eiecate and fulfil the duties of the office of {as the case may be) without 
 favour or affection, prejudice or partiality, to any person or persons 
 whomaoever. So help me God." 
 
 (2) When not convenient to a person appointed to 
 any office to attend at Toronto to take the oath of office, 
 the oath may be taken before the Judge of the County 
 Court of the County in which the officer resides, or before 
 
 
110 
 
 THE JUDICATURE ACl. 
 
 Mm*. 118- 0, Commissioner authorized to administer affidavits in such 
 ^^ County, and the oath shall be certified by the Judge or 
 
 Commissioner and tiled amongst the records of the Court 
 at Toronto. In all other cases the oath shall be adminis- 
 tered to the officer by the Judge in open Court. 44 V. 
 c. 5, s. 61. 
 
 Otttcers to 
 give He- 
 curity. 
 
 \IH» The Clerk of the Process, the Registrars of the 
 Queen's Bench and Common Pleas Divisions, and the 
 Deputy Clerks of the Crown and Pleas, shall, within one 
 month next after their appointment, give security to Her 
 Alajesty, in such sura, and with so many sureties, and in 
 such form as the Lieutenant-Governor in Council direct*, 
 conditioned respectively, for the due performance of th 
 duties of their office. li.S.O. 1877, c. 39, s. 38. 
 
 Conso- 
 
 to do so. 
 
 llO« The neglect by any such Registrar or Deputy 
 
 SeKiw'^u.g Clerk to give such security shall render his appointment 
 
 void ; but the forfeiture of office shall not affect any act 
 
 done by him during the time he actually continues to hold 
 
 his appointment. E. S. 0. 1877, c. 39, s. 39. 
 
 Who to 
 approve of 
 the Buro- 
 
 tiSB. 
 
 To ba re- 
 corded and 
 deposited 
 as provided 
 by Rev. 
 Stat. c. 15. 
 
 Officers to 
 be at 
 Osgoode 
 Hall. 
 
 120. The Lieutenant-Governor shall in his discretion 
 approve of the security and sureties so given by each 
 Registrar, and the Judge of the County Court having first 
 certified his approval in writing, of the security and sure- 
 ties given by the Deputy Clerk of the Crown for his County, 
 the Lieutenant-Governor shall in his discretion approve 
 of the security and sureties so given by such Deputy Clerk ; 
 and such securities, when executed and approved, shall be 
 duly recorded in the manner provided by The Act respecting 
 Public Officers, and shall then be deposited in the office of 
 the Provincial Treasurer. R. S. 0. 1877, c. 39, s. 40. 
 
 121. The Registrars and the Clerk of the Process respec- 
 tively shall keep their offices in Osgoode Hall, in the City 
 of Toronto. R. 8. 0. 1877, c. 39, s. 42. 
 
 To supply 122. The Clerk of the Process shall keep the officers 
 with blank whose duty it is to issue writs and process, supplied with 
 ^"**' blank writs and process of all descriptions, to be filled up 
 and issued by them; and he shall have a reasonable 
 allowance for printing, procuring and transmitting blank 
 forms of writs and process, and for necessary books and 
 stationery. R. S. 0. 1877, c. 39, s. 44. 
 
'^TTTO 
 
 OFFICEUB AND OFFICES. 
 
 Ill 
 
 123. The Clerk of the Process shall make to theBwuas- 
 Treasurer of the Province quarterly returns, verified by^^^eierk 
 liis affidavit, of all writs and iwocess issued by him in of itocchs 
 actions brought at Toronto, or supplied by him to thequanoriy 
 Registrars and Deputy Clerks of the Crown to be issued by '^"""■"'*' 
 them. li. S. 0. 1877, c. 39, s. 4G. 
 
 124. — (1) Subject as aforesaid, the Judges of theomciai 
 County Courts, the Master in Ordinary, the Master in "'"'""""• 
 Cliamburs, the Registrars of the sevei*al Divisions of the 
 High Court and the Local Masters shall be official cferees 
 for the trial of such questions as shall be directed to be 
 trieil by such referees. 
 
 (2) In case the business is found to require other or 
 additional official referees, and the Presidents of the said 
 Divisions so certify, the Lieutenant-Governor from time to 
 time may appoint other and additional official referees 
 accordingly. 
 
 It has hitherto only been found necessary to appoint one additional Referee. 
 
 (3) In the case of officers who are paid by salary, the 
 fees on any reference or trial shall be paid in stamps ; 
 other referees shall be paid by fees. 44 V. c. 5, s. 63. 
 
 This section does not corresijond with the provisions of the English Act as to 
 (ifficiiil referees. The English Act apjiears to have contemplated an immediate 
 nv'iiohitment of a new set of officers as " official referees, which has not been 
 thuught iiec'jssary for the jjresent here, the antliority of official referees being 
 given to the County Court .Judges, Masters in Chanoety, Local Masters ana 
 otherofficers specially named in section 124 of the present Act, and theapiKiint- 
 nient of others Ixiing deferred until the Presidents of the Division certify that 
 others are necessary. 
 
 135.— (1) There shall be a Local Master in every Local Mas- 
 County or union of Counties other than the County ofneputy 
 York, and every Local Master hereafter appointed shall andol'pJty 
 reside in the County for which he is appointed. thf clown 
 
 See subsection (13), authorizing the High Court, with the concurrence of 
 the Lieutenant-(iovernor in Council, to rehev'e present officers from the oper- 
 ation of this provision. No part of the 125th section is taken from the English 
 Acts. 
 
 (2) When a vacancy occurs in the office of Local Master, ]^^^l^^ 
 
 the Judge of the County Court for the County shall be the 
 
 Local Master until and unless another person is appointed 
 
 Local Master. In such case if there are two County 
 
 Judges, a Senior and Junior Judge, both Judges shall be 
 
 \ , <i' nj* a 
 
 '.^V| 
 
mr-u 
 
 112 
 
 Sea 136, 
 
 (8-»). 
 
 THE JUDICATURE ACT. 
 
 Local Masters until and unless one of them or some other 
 person is appo'nted sole Local Master. 44 V. c. 5, s. 64 
 
 (1, 2). 
 
 Local 
 Begistrars. 
 
 Deputy (3) Except in the County of York, the several Clerks 
 Srcrown. of the Couuty Courts shall be ex officio Deputy Clerks of 
 
 the Crown and Pleas of the High Court for their County. 
 
 E. S. 0. 1877, c. 39, s. 37. 
 
 Deputy (4) "Where a County Court Judge is the Local Master, 
 Registrars. ^-^^ Couuty Court Clerk shall be Deputy Eegistrar. 44 V. 
 c. 5, s. 64 (3). 
 
 (5) The offices of Deputy Clerk of the Crown and Deputy 
 Eegistrar (not Local Master) shall be consolidated as 
 vacancies occur in either ; unless where the Presidents of the 
 Divisions of the High Court or a majority recommend 
 otherwise, when the said offices are held by the same per- 
 son, he shall be styled Local Eegistrar of the High Court. 
 44 V. c. 5, s. 64 (4) ; 44 V. c. 5, Eule 417. 
 
 Pees of (6) Where a reference is made to a Deputy Clerk of the 
 
 ciMks^of Crown, or an examination is taken by him, he shall be 
 the Crown, gjjjj^jpji jq ^g^jjg g^^^ rcccive to his own use the fees on such 
 
 reference or examination. 44 V. c. 6. s. 64 (6). 
 
 tion SVees ^'^^ '^^^ Licutenant-Govemor in Council may commute 
 of Local the fees of a Local Master, or of a Local Master and 
 Masters. Dgpujjy Eegistrar, including his fees as an official referee, 
 for a fixed annual sum, such sum not to exceed the aver- 
 age income derived from fees for the preceding five years. 
 44 V. c. 5, s. 64 (6). 
 
 comniuta- (8) The Licutenant-Govemor in Council may commute 
 
 of'Deput'r t^6 fees payable to a Deputy Clerk of the Crown on refer- 
 
 «!rcrown. ^"''^^ and examinations and other matters for a fixed 
 
 annual sum, such sum not to exceed the average income 
 
 derived from such fees during the preceding five years. 
 
 44 V. c. 5, s. 64 (7). 
 
 Amount of 
 commuta- 
 tion may 
 be 
 changed. 
 
 (9) Any annual sum fixed as provided in the preceding 
 two sub-sections shall continue until varied by Order in 
 Council, but any order for payment of any such annual 
 sum as aforesaid may be rescinded, and the amount may 
 by Order in Council be increased or diminished, provided 
 
0FFI0EB8 AMD OFFICES. 
 
 113 
 
 that in no case shall any Order in Council name a sum sea laa, 
 exceeding the average income or fees aforesaid (as the case t^®"^) 
 may be) during the preceding five years. 44 Y. c. 5, 
 
 8. 64 (8). 
 
 (10) The Local Masters, Local Registrars, and Deputy Appoint- 
 Clerks of the Crown, Deputy Registrars and other officers Sbcwb?' 
 mentioDed in this Act shall be appointed by the Lieuten- 
 ant-Governor, and every such officer heretofore appointed 
 
 shall hold office during the pleasure of bhe Lieutenant- 
 Governor. 44 V. c. 5, ss. 58 (3), 64 (9) ; 47 V. c. 10, s. 7. 
 
 (11) Where a Local Master, or Deputy-Registrar, or Fees of 
 Deputy Clerk of the Crown, or other officer, is paid by a offlceM^to 
 salary, he shall not, save as hereinbefore expressly pro- o^tSe^con- 
 vided, take for his own benefit, directly or indirectly, any Ifj^^^^fg^ 
 fee or emolument, save the salary to which he may be 
 entitled ; but the like sums and fees heretofore payable on 
 proceedings in his office shall continue to be payable ; and 
 
 all such fees shall form part of the Consolidated Revenue 
 Fuud of this Province, and shall be payable in stamps, 
 subject to the provisions of The Act respecting Lmv Stamps. Rev. stat. 
 44 V. c. 5, s. 64 (10). ''•^• 
 
 (12) No Local Master whose gross income from his office Local Mas- 
 of Local Master or of Deputy Registrar and Local Master, prlcM8e*ia 
 is $2,000 or upwards shall, during the continuance of his 
 appointment, directly or indirectly, practise in the profession 
 of the law as Counsel, or Solicitor, or as a Notary Public, 
 or Conveyancer, or do any manner of conveyancing, or pre- 
 pare any papers or documents to be used in any Court of 
 
 this Province, under the penalty of forfeiture of office, and 
 the further penalty of $400, to be recovered by any person 
 who sues for the same by action in the High Court, and 
 one-half of such pecuniary penalty shall belong to the 
 party suing, and the other half to Her Majesty for the use 
 of the Province ; but nothing in this section shall prevent 
 the Lieutenant-Governor in Council, or the High Court, 
 from requiring a Local Master whose income does not 
 amount to |2,000, to abstain from practising under the 
 like penalties. 44 V. c. 5, s. 64. (11). 
 
 (13) the High Court may, with the concurrence of the ^^^^e^gept 
 Lieatenant-Governor, relieve any person now holding the officers 
 
 J.A. 8 
 
 certain 
 cases. 
 
 
 *v 
 
 --#- 
 
114 
 
 THK JUDICATURE ACT. 
 
 s«c«. 126, office of Local Master and Deputy Registrar, or any other 
 from Bub- officer from the operation of the preceding sub-sections 
 89. land 12. 1 and 12, or either of them. 44 V. c. 5, s. 64 (12). 
 
 Returns of (14) Evcry officer paid by fees, whether commuted or 
 not, shall on or before the 15th day of January in every 
 year, transmit to the Inspector of Legal Offices appointed 
 under section 141 of this Act a just, true and faithful 
 account, verified upon oath, of the amount of fees paid or 
 payable to him in cash or in stamps in respect of his office 
 during the preceding year, and also such particulars with 
 reference to the business of his office as the Inspector of 
 Legal Offices may require. 44 V. c. 5, s, 64 (14) ; 47 V. 
 c. 10, 3. 16 ; as amended by 52 V. c. 10, s. 4. 
 
 Form of 
 returns. 
 
 (15) The Lieutenant-Governor or the member of the 
 Government having charge of the matter may require the 
 return to state any particulars, or to be made in any form 
 that may be thought proper, and such return shall be made 
 accordingly. 44 V. c. 5, s. 64 (15). 
 
 the Crown. 
 
 De*ut*^ 126. In the office of every Deputy Registrar and Deputy 
 BegistrarB Clerk of the Crown such seal shall be used as the Lieutenant- 
 curkfof '^ Governor shall from time to time direct, which seal shall 
 be impressed on every writ and other document issued out 
 of or filed in such office ; and all such writs and documents, 
 and all exemplifications and r copies thereof, purporting to 
 be sealed with the seal of any such Deputy Registrar or 
 Deputy Clerk of the Crown, shall in all parts of this 
 Province be received in evidence without further proof 
 thereof. 44 V. c. 5, s. 51. 
 
 See Eng. J. A. 1873, c. 61. 
 
 The English section referred to provides for the seals of the District Regis- 
 tries, enacts that such seals shall be used in everjr such registry as the wrd 
 Chancellor may direct, and contains the same provisions as above with refer- 
 ence to the use of it and to its effect in evidence. 
 
 Owing to doubts as to whether the effect of this section was to make M 
 additional fee of 50 cents, payable under R. S. O. c. 39, s. 53 (now sec. 155), 
 upon all filings, Ruk 1225 was passed to make such fee not i>ayable except 
 wnere the former practice required a seal to be impressed. 
 
 anTcfirk **'^' '^^® Lieutenaut-Govemor in Council may from 
 of Assize time to time appoint a suitable person to be the Marshal 
 ofYo?r*^and Clerk of Assize for the County of York, who shall hold 
 office during pleasure. R. S. 0. 1877, c. 41, s. 16 (1). 
 
0FFI0BB8 AND OFFICES. 
 
 115 
 
 128. Every Marshal and Clerk of Assize, being aS««">U8- 
 Deputy Clerk of the Crown or Local Registrar, or autho- "^^^^g,. 
 rized to act as such shall be entitled to be paid out of theationoi 
 Consolidated Revenue Fund the sum of $4 for each day's ^Mkl'of 
 attendance as such Marshal or Clerk of Assize. 
 1877, c. 41, s. 18. 
 
 RQ f\ the Crown 
 . O. KJ. when they 
 act as 
 marshals. 
 
 129. No charge whatever shall be made by any of the Notto re- 
 said Marshals or Clerks of Assize upon any criminal in'crinihiai 
 trial or proceeding in any Court at which thsy act as***^^^- 
 Marshals and Clerks of Assize respectively. R. S. 0. 1877, 
 c. 41, 8. 19. 
 
 180.— (1) Each Deputy Clerk of the Crown and Pleas where 
 shall, if proper accommodation is afforded him, keep his cfe^kJ 
 office in the Court House of his County, and until he can ^^'^^ *° ^ 
 obtain such accommodation he shall keep his office in 
 some convenient place in the County Town. R. S. 0. 1877, 
 c. 89, s. 47. 
 
 (2) Provided, however, that the Deputy Clerk of the 
 Crown and Pleas at Sandwich, may keep an office in some 
 convenient place in the Town of Windsor, in the County 
 of Essex, subject to such arrangements as the County 
 Council of the County of Essex may assent to, and subject 
 also to the approval thereof by the Lieutenant-Governor 
 in Council. 49 V. c. 12, s. 1. 
 
 181.— (1) There shall be an Official Guardian ad litemomoM 
 of infants, who shall be appointed by the Lieutenant- od«te»^ 
 Governor, and shall be a Barrister-at-Law and Solicitor of 
 this Province, of not less than seven years' standing, and 
 shall hold office during pleasure. 
 
 (2) The Official Guardian, besides acting as a Guardian ""**^' 
 <i<J litem of infants under Rules of Court and other orders, °"*' "" 
 shall perform such other duties as a Divisional Court or 
 
 Judge may from time to time direct. 
 
 (3) The same costs as hitherto shall be paid to thego^tsot^ 
 Guardian by any party ; and the same costs as hitherto 
 
 shall be payable to the Guardian out of funds in Court; 
 but all costs so paid to the Guardian by any party shall be 
 by such Guardian paid forthwith into Court with the 
 privity of the Accountant of the Supreme Court, and shall 
 
 
lf^.i 
 
 116 
 
 See. 131, 
 (♦•8). 
 
 Costs 
 where 
 estate is 
 small. 
 
 Salary of 
 Guardian. 
 
 Transfer 
 of surplus 
 of Guar- 
 dian's ac- 
 count. 
 
 THE JUDICATURE ACT. ^ 
 
 be placed to the credit of an account to be intituled 
 "Account of Official Guardian ad litem;" and all costs 
 payable to the Guardian out of any funds in Court, shall 
 be transferred to the credit of the same account. 
 
 (4) Where the estate is small, and, in view of the 
 amount at the credit of the said account, the amount or 
 part of the amount payable out of the estate for the Guard- 
 ian's costs does not appear to be required to pay the salary 
 and disbursements of the Official Guardian, the Court may 
 withhold payment out of such estate of the sum or any 
 part of the sum due for the Guardian's costs in respect 
 of such estate ; and may distribute the estate as if such 
 costs were not payable by or out of the same. 
 
 (5) There shall be paid to the said Guardian in respect 
 of all business done a fixed salary of such sum per annum 
 as, in view of the amount of business done or to be done 
 by the Guardian, and the sum at the credit of the account, 
 the said Judges think reasonable and the Lieutenant- 
 Governor in Council approve ; which salary shall be over 
 and above all necessary disbursements ; and the salary and 
 disbursements shall be paid monthly or otherwise as shall 
 be determined by Rule of Court, out of the fund at the 
 credit of the said account of the Official Guardian ad litem, 
 and not otherwise. 
 
 (6) The surplus appearing from time to time at the 
 credit of the said account beyond what may be required to 
 pay the charges on the said account, shall be transferred 
 to the " Suitors' Fee Fund Account." 
 
 As to this account see note to sec. 140. 
 
 Miicftor ^'^^ Where the Official Guardian has occasion to employ 
 employed a soHcitor in another County for the purpose of any pro- 
 Gu^fan. ceeding in an action, such solicitor shall be entitled to 
 receive from the Official Guardian in respect of the pro- 
 ceeding the same costs as if the solicitor so employed were 
 solicitor and Guardian of the infant. 
 
 Beturu of 
 costs. 
 
 (8) The Official Guardian ad litem shall once every six 
 months file in the Accountant's office an affidavit, shewing 
 all costs recovered by him as Official Guardian ad Utem< 
 during the six months preceding the making of the affi- 
 davit, giving therein the several amounts received by him, 
 
OFFICIAL GUARDIAN. 
 
 117 
 
 and the name or names of the actions and matters inBecusa- 
 which the same were respectively received by him, together ^''* 
 with the date of receipt. 
 
 (9) When a new Official Guardian ad litem is appointed, Transfer 
 he shall ipso facto become, and be by virtue of such appoint- merSo*f °*" 
 ment, Guardian ad litem to all infants, in the place and Sf^^""" 
 stead of his predecessor, with the same duties and powers ; 
 
 mi the latter (bis executors and administrators, as the 
 case may be) shall forthwith deliver over to the new Official 
 Ouai'dian all letters, papers, documents and books in his 
 possession or power as Official or other Guardian ad litem 
 of infants ; and the new Guardian shall forthwith com- 
 municate his appointment to whom it may concern. 
 
 (10) The Lieutenant-Governor in Council, or the High ^'^*j'^^°g. 
 Court, may order that the Official Guardian is not to prac-tiseif 
 
 tise as a Barrister or Solicitor, and in such case he shall ant^Gov- 
 not, during the continuance of his appointment and of^'XiVii'or 
 such order, directly or indirectly practise the profession of ^'°^"/,*g*° 
 the law as Counsel or Solicitor, or as a Notary Public, or 
 Conveyancer, or do any manner of conveyancing, or pre- 
 pare any papers or documents to be used in any Court of 
 tins Province, except in the discharge of his duties as Offi- 
 cial Guardian, or of any other duties which may be assigned 
 to him by the said High Court or any Division or Judge 
 thereof as the case may be ; and the said Official Guardian 
 in case of his offending in the matter aforesaid shall be 
 subject to a penalty of forfeiture of office, and the further 
 penalty of $400 to be recovered by any person who sues 
 for the same by action in the High Court ; and one-half of 
 such pecuniary penalty shall belong to the party suing, 
 and the other half to Her Majesty for ^,he use of the Pro- 
 vince. 44 V. c. 6, 8. 66 ; 48 V. c. 13, s. 18. 
 
 I32« The Accountant shall yearly and on or before the Return of 
 15th day of January in every year transmit to the Lieu- Guardian's 
 tenant-Governor in Council a just, true and faithful state- '""'°"°*^- 
 ment, shewing the state of the " Account of the Official 
 Ouardian ad litem " upon the Slst day of the preceding 
 Decemher. 44 V. c. 5, s. 67. 
 
 183. — (1) Subject to any Rules of Court which may be Account- 
 made under the provisions of sections 105 to 108 of this*"*"' 
 
 
 ! 
 
 i- 
 

 118 
 
 THE JUDICATURE ACT. 
 
 Securities 
 vested in 
 Account- 
 ant. 
 
 seoa. 134, A.ct the present Accountant and his successors appointed 
 Supreme Under section 112 of this Act, shall be the Accountant of 
 Court. the Supreme Court of Judicature for Ontario, and shall be 
 so designated. 
 
 (2) For the purposes of holding the mortgages, stocks, 
 funds, securities, and all estate therein, and any interest 
 in real and personal estate, effects or property, and of all 
 moneys and effects mentioned and described in section 134 
 of this Act, or in any Kule or Order of Court, the said 
 Accountant shall be a corporation sole by the name of 
 " The Accountant of the Supreme Court of Judicature for 
 Ontario," and the said Accountant as such corporation 
 sole shall have perpetual succession, and may sue and be 
 sued, may plead and be impleaded in any of Her Majesty's 
 Courts in this Province. 48 V. c. 13, s. 17. 
 
 134. All mortgages, stocks, funds, annuities and securi- 
 ties whatsoever, at the time of the commencement of The 
 Ontario Judicature Act, 1881, standing in the name of the 
 Accountant of the Court of Chancery, or of the Referee in 
 Chambers, or any other officer named by the Court for the 
 purpose under the authority of the 31st section of the 
 Chancery Act, or in his custody or power as such Accoun- 
 tant, Eeferee in Chambers or other officer aforesaid, 
 together with all the interest and estate of the said 
 Accountant, Eeferee in Chambers or other officer, in the 
 lands and premises embraced in such mortgages or other 
 securities, and by the said The Ontario Judicature Act, 
 1881, vested in the Accountant of the High Court for the 
 time being, as such Accountant, and all other mortgages, 
 stocks, funds, securities and all estate therein, and any 
 interest in real and personal estate, effects or property, and 
 all moneys and effects, bonds and guarantees, on the UOth 
 day of March, 1885, vested in and held by the Accountant 
 of the High Court in his own name, or in his name of 
 office, as such Accountant, subject to the same trusts as 
 they may then respectively have been subject to, are here- 
 by declared to be and to have been from and after the 30th 
 day of March, 1885, vested in the said corporation sole 
 under the name aforesaid. See R. S. 0. 1877, c. 40, 
 SB. 30-33 ; 44 V. c. 5, s. 68 (3) ; 48 V. c. 13 ss. 17-19. 
 
 hlidby** 135. All mortgages, stocks, funds, securities, and all 
 Begistrar estate therein, and all moneys and effects prior to the SOth 
 
ACCOUNTANT. 
 
 119 
 
 no 
 
 day of March, 1885, standing in the name of the Registrar »«»• we- 
 of the Court of Appeal as such Registrar in any cause, "c^uyt q, 
 matter, or proceeding then or at any time theretofore Appeal to 
 pending in the said Court of Appeal, are hereby declared f'erred'to 
 to be and from and after the said day to have been trans- ant o""*" 
 ferred to and vested in the Accountant of the Supreme supremo 
 Court of Judicature for Ontario as such Accountant, subject 
 to the trusts which respectively attached thereto ; and the 
 said Registrar and one of the Judges of the said Court of 
 Appeal are to execute all cheques or documents necessary 
 to effect a formal transfer thereof, if any are required ; and 
 the Registrar is forthwith to deliver to the said Accountant 
 all books of account and documents in his possession or 
 control relating to the moneys and property hereby declared 
 to be and to have been transferred to the said Accountant. 
 48 V. c. 13, s. 19. 
 
 IStt. In case of there being at any time no Accountant ^®°jg 
 of the Supreme Court, all mortgages, stocks, funds, annui- Account 
 ties and securities whatsoever theretofore standing in the ^es t^o bS^" 
 name of any Accountant, or in his custody or power in^^*|*^^. 
 respect of his office, together with all the interest and pointed by 
 estate of the said Accountant in the lands and premises 
 embraced in such mortgages or other securities, shall become 
 and be, by force of this Act, vested in such other officer as 
 the Supreme Court, by general rule, may, from time to time, 
 direct, subject to the same trusts as they may then respec- 
 tively be subject to. 44 V. c. 6. s. 68 (2). 
 
 137. All moneys that become subject to the control and Money in 
 distribution of the High Court or Court of Appeal, shall be to°be ai^' 
 paid in the name of the Accountant of the Supreme Court, p°*«<**''- 
 (or if there is no Accountant in the name of such other 
 officer as the Court by general rule may from time to time 
 direct) into the hands of such person or body corporate, or 
 shall be invested in the name of the Accountant (or, if 
 there is no Accountant, in the name of such other officer) 
 in the public funds of the Dominion of Canada or of this 
 FroTince, or in such other securities as the Court may from 
 time to time direct. R. S. 0. 1877, c. 40, s. 33 ; 48 V. 
 c. 13, s. 20. 
 
 ISA. The expenses of the Accountant's Office including Expenses 
 all salaries, shall be the first charge on the income arising ant-rofflce^ 
 from the funds in Court. 44 Y. c. 5, s. 69. 
 
 'P 
 
Sees. 139> 
 
 Amounts 
 to be paid 
 to Suitors' 
 Fee Fund. 
 
 120 THE JUDICATURE ACT. 
 
 139. The surplus income arising from the funds in the 
 High Court after payment of the expenses of the Account- 
 ant's office, and of such interest on the moneys of suitors 
 as from time to time hy Bules of Court or otherwise is 
 directed to bo paid, shall be transferred to the " Suitors' 
 Fee Fund Account." 47 V. c. 10, s. 6. 
 
 lund"^^^ 140. "The Suitors' Fee Fund Account " shall continue 
 to he kept and managed as may from time to time be 
 directed by the Court, and any Divisional Court or any 
 Judge of the Supreme Court of Judicature for Ontario may 
 apply the same as may he necessary for the protection of 
 infants and other persons not sui juris or non compotet 
 mentis, on whose behalf proceedings may be had in the 
 Court, or may, by the Court, be ordered to be had in other 
 Certain Courts, and may also, from time to time, order to be paid, 
 be^oifa^e^ out of the moucy at the credit of the said account, any sum 
 lund^ required to make good a default arising in respect of 
 suitors' money or securities from any mistake, act, or 
 omission of any official of the Court. Such payment is to 
 be without prejudice to any personal liability of the official 
 or his sureties in respect of the mistake, act or omission. 
 E. S. 0. 1877, c. 40, s. 104 ; 41 V. c. 8, s. 5 ; 47 V. 10, s. 6. 
 
 The "Suitors' Fee Fund Account," which is an account formerly kept by 
 the Court of Chancery, was first created by 20 Vict. c. 5C, s. 20 (Con. Stat. U.C. 
 c. 12, 8. 73 ; R. S. O. 1877 c. 40, s. 104). It was constituted by a small fee of ten 
 cents on every bill, answer, and demurrer; and it was jirovided, that the 
 account should "be kept and managed as may from time to time be directed 
 by the Court ; and the sums at the credit of such account shall be ajiplied by 
 the Court as may be necessary for the protection of infants and other jjereoiis 
 not sui juris, on whose behalf i)roceeding8 may be had in the Court, or may by 
 the Court be ordered to be had in other Courts." This section of the Revised 
 Statute was repealed by 41 Vict. c. 8, s. 5, "so far as it directed i)ajinentof 
 any fee to the account." There was then, and is still, a considerable sum at 
 the credit of the account ; and this sum, with the additions that may be made 
 to it under sections 131 (6), 139, will continue to be a[>plicable to the same 
 purposes and the others mentioned in this section. 
 
 ©r^^e^s **' • ^^^ Lieutenant-Governor may from time to time 
 and other appoint ouc of the officors of the High Court, or some other 
 officers, competent person, to inspect the offices of the Sheriffs, 
 Local Masters, Deputy Eegistrars, Deputy Clerks of the 
 Crown, Local Registrars of the High Court, Registrars of 
 Surrogate Court, Clerks of the Peace, and County Crown 
 Attorneys, and Clerks of the County Court, in the respective 
 Counties of the Province, and such other officers connected 
 with the administration of justice as the Lieutenant- 
 
INSPECTOR OF LEGAL OFFICES. 
 
 121 
 
 Governor in Council may from time to time direct. 
 5,8.70; 49 V. c. 16, 8.40. 
 
 44 y. Beoi. 142- 
 
 144. 
 
 Diitien of 
 Inspector. 
 
 142. The duty of the Inspector shall be : — 
 
 1. To make a personal inspection of the said offices and 
 of the books and Court papers belonging thereto respec- 
 tively ; 
 
 2. To see that proper books are provided, that they are 
 in good order and condition, that the proper entries and 
 records are made therein in a proper manner, at proper 
 times, and in a proper form and order, and that the Court 
 papers and documents are properly classified and pre- 
 served ; 
 
 3. To ascertain that the duties of the officers are duly 
 and efficiently performed ; 
 
 4. To see that proper costs and charges only are allowed 
 or exacted ; 
 
 5. To ascertain that proper security has been given by 
 any officer required by law to give security ; 
 
 6. To ascertain whether uniformity of practice prevails 
 in the several offices of the High Court and in the County 
 and Surrogate Courts ; 
 
 7. To report upon all such matters as expeditiously as 
 may be, to the Lieutenant-Governor. 44 V. c. 5, s. 70. 
 
 148. When the said Inspector has occasion to institute inquiries 
 an inquiry into the conduct of any officer in relation to his t*or.^"^^^°" 
 or their official duties or acts, it shall be lawful for the said 
 Inspector to require such officer, or any other person or 
 persons, to give evidence on oath ; and for this purpose the 
 said Inspector shall have the same power to summon such 
 officers and other persons to attend as witnesses, to enforce 
 their attendance, and to compel them to produce books 
 and documents and give evidence, as any Court has in civil 
 cases. 44 V. c. 5, s. 71. 
 
 144. The said several officers shall, as often as required Books, eus., 
 by the said Inspector, produce for examination and inspec- auced for 
 tion all books and documents which are required to be kept '"«»«*'*•'"•• 
 by them, or which may hereafter be required to be kept by 
 them ; and shall report to the Inspector all such matters 
 
 ■„ J* 
 
 ^ L-a 
 
 
?''^~!?r 
 
 122 
 
 THE JUDICATURE ACT. 
 
 Baei. 146- relating to any cause or proceeding as the Inspector shall 
 "'• require. 44 V. c. 5, s. 72. 
 
 Affixing 145. — (1) Where the Inspector of Legal Offices, ap- 
 
 pa^peJs^un- pointed under section 141 of this Act, or any other officer 
 
 inslftjif'* '"' inspecting legal offices under the authority of an order of 
 
 stamped ^^*® Lieutenant-Governor in Council, finds any paper or 
 
 proceeding which should have had affixed to it law stamps, 
 
 to be unstamped, or to be insufficiently stamped, he may 
 
 require the officer to whom belonged the duty of seeing 
 
 that such paper was properly stamped, to affix to every 
 
 such paper or proceeding a stamp or stamps of a sufficient 
 
 amount to make up the deficiency. 
 
 (2) The Inspector or other officer directing stamps to be 
 affixed as aforesaid shall cancel the stamps so affixed in 
 such manner as shall be directed by the Lieutenant-Gov- 
 ernor in Council, and the affixing of such stamps by direc- 
 tion of the Inspector, shall have the same effect as if the 
 paper or proceeding had been duly stamped in the first 
 instance. 48 V. c. 13, s. 31. 
 
 steno- 
 graphic 
 writers. 
 
 Reporter's 
 oath. 
 
 '//^.'> 
 
 Appoint- 
 ment of 
 special 
 examiners. 
 
 14ft« — (1) The stenographic writers heretofore appointed, 
 or who shall hereafter be appointed by the Lieutenant- 
 Governor to report trials at sittings of the High Court, 
 or of a County Court, shall be officers of the Court to 
 which they are appointed, and shall hold office during the 
 pleasure of the Lieutenant-Governor, and shall perform 
 such other duties as may be assigned to them by Rule of 
 Court, or order of the Lieutenant-Governor in Council. 
 
 (2) Every such reporter shall take the following oath 
 before one of the Judges of the Court to which he is 
 appointed, and the same shall be filed : 
 
 I (A. D.)do solemnly and sincerely promise and swear that I will faithfnHv 
 re|)ort the evidence and proceedings at the trial in each case in which it 
 may be my duty to act as shorthand reporter. So help me God. 49 V. c. 16. V,, 
 
 8.41. /i/i^^ ^-' ri' Ci(: (£.<iA i'^'A-^ ..^■-,'At^^J c ^j,^'*,J,'^'\/ux*< 
 /.. • / . , <-■ ^ / ,.,-<< T. ' I- -• r . -J /f'j . . , /,■, ., .J ^->/v -^ 
 
 147. The Supreme Court may, from time to time, 
 under the seal of the Court, appoint and at discretion 
 remove special examiners for the purpose of taking evi- 
 dence of parties and witnesses, and the examiners so 
 appointed shall have all the powers formerly possessed by 
 Masters Extraordinary and Examiners. B. S. 0. 1877, 
 c. 40, s. 11. 
 
OFFICERS AND OFFICES. 
 
 12» 
 
 ( nT 
 
 SiSEMrfsSiSaKAWEI 
 
 14S. Any officer of the Supreme Court or the High J^ !*•■ 
 Court shall, for the purposes of any proceedings directed A,imini8- 
 by the Court to be taken before him, have full power totrftUonof 
 administer oaths, to take affidavits, to receive affirmations, "* 
 and to examine parties and witnesses, as the Court may 
 direct. E. S. 0. 1877, c. 40, s. 10. 
 
 149. Sheriffs, deputy sheriffs, gaolers, constables and ''^^^j^^^^*- 
 other peace officers, shall aid, assist and obey the Court etc.. to 'bo 
 and the Judges thereof respectively in the exercise of the "i^'^cou?'. 
 jurisdiction conferred by this Act, and otherwise, whenever 
 
 by any General or other Order of the Court or of a Judge 
 thereof, required so to do. R. S. 0. 1877, c. 40, s. 17. 
 
 150. All gaols in Ontario shall be prisons of the High ^^^J^o^,* of * 
 Court. R. S. 0. 1877, c. 40, s. 18. the court. 
 
 151.— (1) There shall be paid out of the Consolidated sa}a>'ieB. 
 Revenue Fund of this Province such sums as the Legisla-* "" 
 ture may from time to time appropriate for such purpose 
 as and for the salaries of officers of the said Courts, who 
 are not paid by fees or otherwise. R. S. 0. 1877, c. 39, 
 8. 49 : c. 40, s. 15. 
 
 (2) The salaries of all officers of the Court which are 
 payable out of the Consolidated Revenue Fund shall be 
 paid monthly, but the payment to be made in each case on 
 the first day of payment which happens after the right 
 thereto accrues, shall be a ratable proportion of a month's 
 salary, according to the time then elapsed since the accrual 
 of the right ; and in case of a vacancy, the person who 
 vacates the office, his executors or administrators, shall be 
 entitled to a proportional part of his salary according to 
 the time elapsed between the vacancy and the last payment. 
 B.S.O. 1877, c. 40, s. 15; c. 39, s. 51. 
 
 152. — (1) Unless specially authorized, neither the Mas- no fees 
 ter in Ordinary, the Registrars, nor any of their deputies, 
 nor the Process Clerk, nor the Clerk in Chambers, nor the 
 Accountant, nor any Clerk appointed as aforesaid, shall 
 take for his own benefit, directly or indirectly, any fee or how fees to 
 emolument, save the salary to which he maybe entitled by ''*^"^^* 
 law ; but the like sums and fees heretofore payable on pro- 
 ceedings in the offices of the said officers shall continue to • 
 
 ■•' if' 
 
 y 1 ■ . 
 
 J 
 
 
 
 
 
r 
 
 124 
 
 THE JUr lOATURE ACT. 
 
 sms. IBS- be payable ; and all such fees shall form part of the Con- 
 solidated Revenue Fund of the Province, and shall be pay- 
 
 Bev. Stat, able in stamps, subject to the provisions of Tke Act resjyect- 
 ing Law Stamps. 
 
 ^flTceVs ^^^ '^^^ Local Masters and Deputy Registrars not paid 
 
 may take by Salary and the Commissioners may retain to their own 
 
 '^**" use all the fees of office which they respectively receive not 
 
 payable to the Crown or belonging to any fee fund, and 
 
 need not account to the Crown for any portion of such fees. 
 
 R. S. 0. 1877, c. 40, s. 16 ; c. 39, s. 52. 
 
 De'"ut** °' 153. — (1) The Lieutenant-Governor in Council may 
 cierkB of appoint that sums not in any case exceeding $600 nor less 
 the Crown, ^.j^^j^ | jqq yga^iy gij^n be paid out of moneys to be heiv 
 
 after voted by the Legislature for the purpose, as and for 
 the salaries of the Deputy Clerks of the Crown respectively. 
 R. S. 0. 1877, c. 39, s. 60. 
 
 (2) The preceding provision fixing the maximum at $600 
 shall not apply to any case where the Deputy Clerk does 
 not hold the office of Registrar of the Surrogate Court. 
 45 V. c. 11, s. 5. 
 
 wrftVa'nd I54. The fees payable on all writs and process issued 
 process, by the Clerk of the Process shall form part of the Consoli- 
 dated Revenue Fund of the Province, and shall be payable 
 Re^. stftt. in stamps subject to the provisions of The Act resprrtinq 
 Law Stamps. R. S. 0. 1877, c. 39, s. 45. 
 
 Fees. 155. In addition to all fees, otherwise ./..d to be 
 
 levied on proceedings in the High Court, iiowing fees 
 
 shall form part of the Consolidated Revei Fund of the 
 
 Ee^.stat. Province, and shall be payable to the Crow a. in tamps, 
 subject to the provisions of The Act respecting Lau Stumps. 
 
 $CtB. 
 
 On every writ of summons, capias or subpcEna, and on every other 
 writ or other document of what nature or description soever, , 
 
 having the seal of the Court affixed thereto 50 
 
 On every judgment entned 60 
 
 On every certificate of action instituted, judgment or decretal order 
 
 made 50 
 
 On setting down on the paper for argument of every demurrer, 
 
 special case, points reserved, special verdict or appeal case 30 
 
 On entering every action for trial or assessment 2 00 
 
 On every rule or order of Court issued 20 
 
 On taxation of every bill of costs 20 
 
 R. S. 0. 1877, c. 39, s. 53 ; c. 40, s. 105 ; 44 V. c. 6, Rule 432. 
 
 The fees payable under this section have been included in the Tariff pre- 
 scribed by liule 1218. 
 
 Compare Eng. h 
 
COUNTY COURTS AND JUDOEB. 
 
 125 
 
 150* In addition to all fees otherwise authorized to be b«o. xm, 
 
 levied on proceedings in cases brought to the Court of j,^Jg 
 
 Appeal from the High Court, the following fees shall be 
 
 payable to the Crown in stamps, subject to the provisions u«v. stat. 
 
 of lite Act respecting Laiv Stamps : "■^' 
 
 $ eta. 
 
 On every appeal entered 4 00 
 
 On every judgment, decree, or order of the Court passed and 
 entered 2 GO 
 
 R. S. 0. 1877, c. 38, s. 55. 
 
 The ffi'H livable under this section have also been included in the Tariff 
 
 preHcribtHl by 'Jiiilc 1218. 
 
 COUNTY COURTS AND JUDGES. 
 
 157. The Judges of the several County Courts shall be^°5*'„o, 
 Judges of the High Court for the purposes of their jurisdic- Higucliurt. 
 tion in actions in the High Court ; and in the exercise of 
 such jurisdiction may be styled " Local Judges of the High 
 Court," and shall, in all causes and actions in the High 
 Court, have, subject to Rules of Court, power and authority 
 to do and perform all such acts, and transact all such 
 business in respect to matters and causes in and before 
 the High Court as they are by Statute or Riiles of Court 
 in that behalf from time to time empowered to do and per- 
 form. 44 V. c. 5, s. 76. 
 
 Compare Eng. Rules S. C. 1875, Order 35, s. 4. 
 
 RulvH 41 and 42 define the powers which the County Court Judges are to 
 have in actions in the High Court. 
 
 (2) A Local Judge of the High Court may in cases of 
 emergency grant an interlocutory injunction under sub- 
 8r"tion 8 of section 53 of this Act in any action in the 
 Kij^h Court brought in his County on proof to the satisfac- 
 tioD of the Judge that the delay required for an application 
 to the High Court is likely to involve a failure of justice ; 
 such injunction to remain in force for a period not exceed- 
 ig eight days, as euch Local Judge may direct, unless 
 continued by the High Court. Such injunction shall be by 
 order, to be signed, sealed and issued by the Deputy- 
 Registrar or Deputy-Clerk of the Crown of such County, 
 upon the direction or flat of such Local Judge, and such 
 injunction shall have the same force and effect and may 
 
 . ' ''i 
 
 
126 
 
 THE JUDICATURE ACT. 
 
 |H|i 
 
 Beo. 1B8. be continued, varied, dissolved, and otherwise dealt with 
 by the High Court as if it had been originally granted by 
 judgment or order of the High Court. 52 Y. c. il, s. 1. 
 
 TRANSFERRING CAUSES FROM COUNTY OR DIVISION COURTS TO 
 
 HIGH COURT. 
 
 HrS Court 1^®» ^^ cases before any County or Division Court 
 from where the defence or counter-claim of the defendant in- 
 DivWon ""^ volves matter beyond the jurisdiction of the Court, the 
 oouits. High Court or any Division or Judge thereof, may on the 
 application of any party to the proceeding, order that the 
 whole proceeding be transferred from such Court to the 
 High Court, or to any Division thereof; and in such case 
 the Record in such proceeding shall be transmitted by the 
 Clerk or other proper officer, of the County or Division 
 Court to the said High Court ; and the same shall thence- 
 forth be continued and prosecuted in the said High Court 
 as if it had been originally commenced therein. 44 Y. c. 5, 
 s. 78. {See cap. 47, s. 22, and cap. 51, a. 74.) 
 
 Adopted from Eng. J. A. 1873, s. 90. 
 
 In the Ont. J. A. 1881 this section was preceded by a clause which is 
 now in the Revised Statutes transferred to tlie Cr nty and Division Cuurt 
 Acts as c. 47, ss. 21 and 22, and c. 51, ss. 73 and 74. 
 
 Powers ot Sec. 21 of the County Courts Act (R. S. O. c. 47) and sec. 73 of the Divisioii 
 County Courts Act (R. S. O. c. 5o) provide that "[every County and Division 
 and Divi- Court] shall as regards all causes of action within its jurisdiction for the time 
 sionCourts. being, h*ve i)ower to grant and shall grant in any proceeding before such 
 Court such relief, redress, or remedy, or combination of remedies, either abso- 
 lute or conditional rincViding the power to relieve against iwnalties, forfeitures 
 aid agreements for liquidated damages] and shall in every such proceeding give 
 such and the like effect to every ground of defence or counter claim, enuitAble 
 or legal (subject to the provision next hereinafter contained), in as nill and 
 ample a manner as might and ought to be done in the like case by the High 
 Court." 
 
 The Eng. J. A. 1873, s. 3ft, has, instead of the words first in brackets, the 
 following : — "Every Inferior Court which now has, or which may after tlie 
 passing of this Act, have jurisdiction in Equitv or at Law, and in Kquit.'^ Md 
 m Admiralty reH|)ectively." The words secondly in brackets were intrtKiUced 
 into the Ont. section by 49 V. c. lO, s. 38. The two sections are the same 
 otherwise. In England the County Courts had equitable jurisdiction under 
 28 & 29 Vict., c. 99, and other Acts. 
 
 Where a transfer is made under s. 158 the proceedings must thenceforward 
 be regulated by the practice of the High Court : iMvies v. WiUiatm, 13 
 Ch. D. 550. 
 
 The relief w remedy, power to grant which is by this sec. given, only refers 
 to the relief and remedies to be administered in the action and as the result of 
 the action : Spicr.i v. Daggers, 1 Ci b. & E. 503. 
 
 Under the corresixnidinp section of th^ English Act, it was held that a 
 County Court in actions within its jurisdiction has power to ^ant an injunc- 
 tion against a nuisance, and to enforce obedience by committal : Martin v. 
 
 That sectioi. is as f 
 
COUNTY AND DIVISION COURTS. 
 
 127 
 
 Bannitter, 4 Q. B. D. 212, 491, and though the order is only interlocutory : Sec. 1S8. 
 BicharuU v. Cullerne, 7 Q. B. D. «23 ; 18 C. L. J. 364. 
 
 In Pryor v. City Offices Co., 10 Q. B. D. 504, the extent to which those 
 decisions seemed to go was restricted, and it was held that the above words 
 "in any proceeding " do not mean "in a motion in any action " but rather " in 
 any action," and that the Inferior Court is given the same authority as the 
 High Court, to grant the relief, as the result of the action, but that relief must 
 be given, if at all, by the existing machinery of the liiiorior Couit ; and all the 
 powers given by the Rules of the Jud. Act to Judges of the High Cou^^ in 
 order to arrive at the granting of such relief, are not conferred upc*i the i ges 
 of the Inferior Courts. 
 
 In County Courts the machinery of the High Coui't is by Pule 1257, to upply County 
 and extend to actions in the County Courts. See further that Ride. Amongst Courts, 
 other provisions Bide 739 (as to moving for final judgment of apjwarance) and 
 Rule 373 (as to counter-claims) have frequently beon made use of. 
 
 As regards the Division Courts there is some conflict of authority, but it may Division 
 l)erhap8be fairly said that the weight of authority is in favour of the view that '^''j''*^^, . 
 thin section only enables Division Courts to exercise the complete legal and oiljtioii 
 equitable jurisdiction conferred ujwn the High Court (see also sec. 54 and R.S.O. 
 c. 47, s. 53) and does not purport to deal with details of practice, or applj' to 
 the Division Courts t'.ie Ru'.es of Procedure contained in the Jud. Act. See 
 Biiildinff <l' Loan Co. v. Heimroil, 19 C. L. J. 254 ; 3 C. L T. 361, and Bank of 
 Ottawa v. McLaujihlin, 8 Out. Ajip. 543, where Bulc 797, as to the effect of a 
 nonsuit, and Fletcher v. Noble, 9 P. R. 2.58, where the right to security for 
 costs were lield not to fall within the purview of the present section. See also 
 Priior V. Citii Offices Co., supra. On tneother hand in Conners v. Birmingham, 
 20 C. L. J. 10, Bide 80 (now 739) was, by virt"e of the present section, applied. 
 In Awbcrrii v. McLean, 19 C. L. J. 335, the right to counter-claim, which 
 seems implied by the terms of the above sec. 158, was held to exist. 
 
 The provisions of the Judicature Act relating to garnishee jjrocess do not 
 apply in Divi»i(m Courts, the proceedings i; such cases being sjiecially pro- 
 videcl for by the Division Court Act : Be Clark v. McDonald, 4 Ont. 310. 
 
 The practice under Bule 795 as to moving to set aside a verdict or judgment Division 
 obtained by default of ap|)earance by a party at the trial is not applicable in Courts 
 Div. Courts, being inconsistent with sec. 145 of the Div. Courts Act : Be Foley £°b ^ „ 
 V. iloran, 11 P. R. 310. 51. • "' "• 
 
 There has also been some difference of opinion as to how far the practice of 
 the High Court mav or should be intrcwuced into Division Courts under 
 sec. 304 of the Division Courts Act, (R. S. O. c. 51.) 
 
 That sectioi. is as follows : — 
 
 "3M. In any case not expressly provided for by this Act, or by existing 
 rules, or by rules made under this Act, the County Judges may, in their dis- 
 cretion, adopt and a])ply the general principles of practice in the High Court, 
 to actions and iiroceedings m the Division Courts ; provided that nothing 
 herein contained shall be held to authorize the taxation or allowance of costs 
 to any officer of the Court other tiian those to lie found in the tariff of fees as 
 authorized and allowed by the board of County Judges under the provisions of 
 this or any other Act. 
 
 Under this section the right to security for costs has been held to be a 
 principle of i.roctice which may be applied by the Division Court Judges : 
 Fktci'er v, XMe, 9 P. R. 255, with all its consequences : ib. 3 C. L. T. 360. 
 
 The jx)wer of adding defendants (see Bule 324) is not a principle of practice 
 within the section : Barber v. Biiujham, 20 C. L. J. 65; nor is service out of 
 the jurisdiction a principle of practice, but a branch of a system of practice or 
 a means of relief which the procedure in Division Courts does not admit of 
 l*ing applied : Re Guy v. O. T. By. Co., 10 P. R. 372. 
 
 V«Wf whether the third xiKtiy Rules (328 et seq.)o.T9 applicable: Be Mer- 
 (Imti Bank v. Van Allen, 10 P. R. 348. 
 
128 
 
 THE JUDICATURE ACT. 
 
 m 
 
 Counter- 
 claims in 
 County or 
 Division 
 Courts. 
 
 860. 169. The power to apply the High Court practice of examining parties before 
 trials has been affirmed : ^fac^lee v. Ont. Bank, as reported, 19 C. L. .J. 252: 3 
 C. L. T. 360; and denied : He WiUing v. JUliott, 37 U. C. Q. B. 320; Fletclur 
 V. iVoble, 9 P. R. 258. 
 
 M(icNee v. Ont. Bank, {supra), as reported, is also in favour of the power to 
 apply the Jtulcs of the Jud. Act generally. See also Murray v. OiUett, 18 
 C. L. J. 78. The decision in BuiMinii <fc Loan Co. v. Heimrod is the other 
 way, and in that case the discretion, if it existed, to apply to Rtdt 797, w»8 
 not exercised. 
 
 In Biirk v. Brittain, 19 C. L. J. 74, the former 'iJw^ 80 (now 739) was acted 
 upon as introducing a principle of practice, which tho County Judge of Nor- 
 thumberland and Durham felt bound, in the exercise of a judicial discretion, 
 to apply ; and this decision was approved by the .Junior Judge of the Couatj' 
 of Ontario, in Smith v. fMwlor, 19 C. L. J. 258 ; see also Connors v. Birmingham, 
 20 C. L. J. 11. In a similar case the County Judge of Victoria thought it 
 would be unwise to apply the same Biile 80 : Coumn v. McQimde, 19 C. L. J. 108 ; 
 and this view was shared by the then Junior Judge of the County of York : 
 Builtlin// tfc Loan, etc. v. Heimrod, supra ; see further comments on this subject, 
 3 C. L. T. 374 and 19 C. L. J. 238, where the view entertained by the majority 
 of the County .ludges at their annual conference in July, 18i83, is said to 
 have been in accordance with Onoan v. McQimde, and Buildinf/ <t Lmn, etc. 
 v. Heimrod ; see als(. Bell v. (;. T. My. Co., 20 C. L. J. 340. 
 
 The provisions of the former Ride 80 (now 739) have now been made appli- 
 cable to Division Courts by the Legislature, and will be found in R. S. 0. 1887, 
 c. 51, 8. 111. 
 
 Sec. 22 of tho County Courts Act and sec. 74 of the Division Courts Act 
 enact that "where in any proceeding before a [County or Division] Court luiy 
 defence or counter-claim of the defendant involves matter beyond the jurisdic- 
 tion of the Court, such defence or counter-claim shall not affect the comj)etencc 
 or the duty of the Court to disjxjse of the whole matter in controversy so far as 
 relates to the demand of the plaintiff and the defence thereto, but no relief 
 exceeding that which the Court has jinisdiction to administer .shall lie given to 
 I he defendant uixMi any such counter-claims. " 
 
 This was adoptetl from Eng. J. A. 1873, b. 90. 
 
 It has been held under that section that an Inferior Court ha« juri.sdiction to 
 entertain a claim set up by way of counter-claim, although it is in re»|)ect of 
 matters which arose beyond its l(x3al jurisdiction, but the |)ower to grant relit'f 
 in resjKXit of such counter-claim is limited to the same amount as the plaintiff 
 has claimed in the action : Ducts v. The Flafistaff Mining Co., 3 C. P. D. 22S. 
 The relief which a defendant can obtain against a third party brought in und^r 
 Rule 328 is similarly limited to protection against the plaintiit's demand : iVeaW 
 v. Corkindale, 4 Ont. 317. 
 
 A defendant who has obtained a verdict or judgment for an amount l)eyond 
 the jurisdiction of the County Court is not estopped from bringing an Mtion 
 in tne High Court on the same cause of action to recover what the County 
 Court would not give him. The defendant in the High Court is estopj)ed by 
 the judgment in the County Court from denying the cause of action of tlie 
 plaintiff in the High Court. The only question in the High Court is the 
 amount of damages : Webster v. Armstrong. 54 L. J. Q. B. 230 ; 1 Cab. ft E. 
 471. 
 
 MISCELLANEOUS. 
 
 lao. — (1) Every Order in Council determining the com- 
 mutation allowance or the salary of any Judge, Official 
 =...„..„= Guardian or other officer, under the authority of this Act, 
 ju^^^^to^ shall be laid before the House of Assembly forthwith, if the 
 by Legi8- Legislature is in session at the date of the Order, and if 
 
 Order in 
 Council as 
 to allow- 
 ances and 
 salaries 
 
^"sfl'P? 
 
 MISCELLANEOUS. 
 
 129 
 
 the Legislature is not then in session, the Order shall he 
 
 before the said House within the first seven days of '^^^wy, 
 the session next after the Order in Council is made. 
 
 (2) In case the Assembly at the said session, (o^, if the 
 session does not continue for three weeks after the said 
 Order is laid before the House, then at the ensuing session 
 of the Legislature,) disapprove by resolution of such Order 
 in Council either wholly, or so far as relates to any of 
 the persons therein named, the Order in Council, so far as 
 so disapproved of, shall have no effect from the time of such 
 resolution being passed. 44 V. c. 5, s. 81. 
 
 160* This Act shall not affect, the issue of any Com- ^^/^jj^ 
 missions of Assize, Nisi Prius, Oyer and Terminer, Gaol etc. 
 Delivery, or other commission for the discharge of civil or 
 criminal business on circuit or otherwise ; or the authority of 
 a Judge or a retired Judge of any of the Superior Courts, or 
 a Judge of a County Court, or one of Her Majesty's Coun- 
 sel learned in the law, to preside without any commission 
 at any Court of Assize, Oyer and Terminer, and General 
 Gaol Delivery, or at a Court held under this Act in the 
 exercise of the jurisdiction now belonging to the Courts of 
 Assize, Oyer and Terminer, and General Gaol Delivery, or 
 the authority of any such Judge or retired Judge of a 
 Superior or County Court, or Counsel learned in the law, 
 to bold any sitting for the hearing of causes ; and any 
 such Judge or Counsel shall after the commencement of 
 this \ct have the same authority to preside as aforesaid, 
 or to bold any sitting of the High Court for the hearing of 
 causes in the High Court respectively, which such Judge 
 or Counsel now has to preside at Courts of Assize, Oyer 
 and Terminer, and General Gaol Delivery, or to hold a 
 sitting of the Court of Chancery for the hearing of causes ; 
 and any such Judge or Counsel when presiding as afore- 
 said with or without a commission, or when holding any 
 Bitting as aforesaid, shall be deemed to constitute a Court. 
 44 V. c. 5, s. 85. 
 
 See Eng. J. A. 1873, s. 93. 
 
 R. S. 0. 1887. o. 45, relatei to the holding of Courts of ABsize and Niii 
 rniM, Ojer and Terminer, and General Gaol Delivery. 
 
 The principal English statutes relating to assizea are 13 Edw. 1 (Stat. Wert 
 2U 30 ; 25 VAw. 1 (Mag. Char.), c. 12 ; 31 Car 2, c. 2, 8. 17 ; 1 Geo. 4, c. 55 ; 
 J Geo. 4, c, 10 ; 11 Geo. 4 and 1 VVill. 4, o. 70 j 2 & 3 Will. 4, c. 47 ; 3 & 4 WilL 
 l-.t n : 2 &; 3 Vict., c. 72 ; 12 & 13 Vict., c. 6 ; 17 & 18 Vict., o. 37 ; 22 & 23 
 Vict, c. 32 ; 26 & 27 Vict., c. 122 ; 39 & 40 Vict., c. 57 ; 40 & 41 Vict, c. 46 ; 
 w * 43 Vict., 0. 1. 
 
 J.A. 9 
 
 
130 
 
 THE JUDICATURE ACT. 
 
 ii:!il 
 
 ' ' i 
 
 8«^ia- 161. Every person shall hereafter have access to and 
 
 All bookB ^® entitled to inspect the several books of the High Court 
 
 *°ritl.'i'd ^^^ °^ *^® County Courts, containing records or entries of 
 
 ment8,etc^! the \vrits issued, judgments entered, and chattel mortgages 
 
 to bo^opeu* and bills of sale filed ; and no person desiring such access 
 
 tion"*'*^" o' inspection shall be required, as a condition to his right 
 
 thereto, to furnish the names of the parties or the style of 
 
 the causes or matters in respect of which such access or 
 
 inspection is sought; and the Begistrars and Deputy- 
 
 Kegistrars of the High Court and all clerks of the County 
 
 Courts of the Province respectively, shall, upon demand or 
 
 request, produce for inspection any writ of summons or 
 
 copy thereof, and any judgment roll, or chattel mortgage, 
 
 or bill of sale so issued, entered or filed in their respective 
 
 offices, or of which records or entries are, by law, required 
 
 to be kept in such several books of the High Court and 
 
 County Courts respectively. 60 V. c. 18, s. 1. 
 
 Fees. 162. The fees payable in respect of such inspection of 
 
 books shall be twenty-five cents as for a general search, and 
 ten cents for each writ of summons, judgment roll, chat- 
 tel mortgage or bill of sale so inspected, and ten cents per 
 folio shall also be payable for all extracts, whether made 
 l)y the person who makes the search or by the ofi&cer. 
 60 V. c. 18, s. 2. 
 
 163* Nothing in this Act shall afifect the practice or 
 procedure in criminal matters, or matters connected with 
 and"other l^ominion Controverted Elections, or proceedings on the 
 matters. Crowu or Revenue side of the Queen's Bench or Common 
 Pleas Divisions. 44 V. c. 5, s. 87. 
 
 See Eng. J. A. 1875, ss. 19, 21 ; Rules S. C. 1875, O. 62. 
 
 The High Court is a continuation of the existinp^ Courts, and the High 
 Court, Q. B. Div., has under a new name the same jurisdiction in Dominion 
 Controverted Election matters as the former Court of Q. B. had under the 
 I)nm. Controverted Elections Act of 1874 : Mitchell v. Cameron, West Hum 
 Election, 8 S. C. R. 126, reversing S. C. 1 Ont. 433. See also Re N. For* «!.•?, 
 32 C. P. 458, and RmHll cas", \ Ont. 439, and note to sec. 3 (4). 
 
 This Act 
 not to 
 apply to 
 
THE 
 
 CONSOLIDATED RULES OF PRACTICE 
 
 OF THE 
 
 SUPREME COURT OF JUDICATURE FOR 
 ONTARIO. 
 
 CHAPTER I. 
 
 INTERPRETATION. 
 
 1. Nothing in these Bules shall be construed as intended cnminai 
 
 ijviii !• 1 • ••! !• matters 
 
 to affect the practice or procedure m criminal proceedings, not affect- 
 or proceedings on the Crown or Revenue side of the*^" 
 Queen's Bench or Common Pleas Divisions. J. A. 
 
 Rule 484. 
 
 See Eng. R. 1875, O. 62 ; R. S. O. c. 39, s. 4. 
 
 The Engliah Rule contains like exceptions and others not needed in this 
 Province. 
 
 2« A "Judge "in these Rules means a Judge of the"Jud^e" 
 Supreme Court, or a Judge having the authority for the S^*° "* 
 time being of a Judge of the High Court unless there is 
 something in the context indicating a different meaning. 
 J. A. Rule 491. 
 
 The interpretation clause in the Act, viz. sec. 2, applies to the Rales. See 
 Rule 4. 
 
 for the reason for employing the expression "Court or a Judge " throughout 
 the English Rules, see Freason v. Loe, 20 W. R. 138. 
 
 This definition of "Judge" was considered to give jurisdiction to the 
 jlMter in Cliambers or County Judge under Rule 422 of the original Act, 
 I' u'* *" the express limitation of their authority), to entertain applications 
 ™ch under these Rules are to be made to " the Court or a Judge^' but not 
 tiiw which were reouired to be made to a " Judge of the High Court." Thi« 
 interpretation is confirmed by the language of the present Rules 30 and 41. 
 
 I 
 
 irrJ 
 
 '^) 
 
 x^y. 
 
 
 l^^-f- ^<r/:^<^ /^UL,., , y4^.* 
 
 C*' 
 
 tfA 
 
 V^ 
 
 le i< « v*, . /"e 
 
 -.li 
 
182 
 
 Former 
 practice 
 super- 
 seded. 
 
 INTERPRETATION. 
 
 8* All Rules and Orders heretofore passed by any of the 
 Superior Courts of Law or Equity in Ontario or Upper 
 Canada and not included in these Rules are rescinded, save 
 and except those mentioned in the schedule, and these 
 Rules shall take effect on and after the 1st day of March, 
 1888. All practice inconsistent therewith is superseded. 
 As to all matters not provided for in these Rules, the 
 practice is, as far as may be, to be regulated by analogy 
 thereto. 
 
 By special' /JmZc the date of coming iuco effect of the Rules was extended till 
 1st Sept., 1888, when the Consolidation came into force, except Rules 210, 211, 
 537. 
 
 See Wolff V. Ogilvy, 13 P. R. 645. 
 
 (a) Rules 210, 211 and 537, are not to come into force 
 until on and after the 1st September, 1888, and in the 
 meantime the existing practice as to the weekly sittings of 
 the Court shall be continued. 
 
 The coming into force of the Rules mentioned was, however, imatiwned until 
 further order, and no Rule bringing them into opt>ration has yet k-en passed. 
 Otiier Rules, e. ij.. Rules 17 and 23 (174.niay depend uiKtn those here expressly 
 mentioned, and may be not yet in force. 
 
 4* The interpretation clauses of the Judicature Act 
 shall apply to these Rules unless there is anything in the 
 subject or context repugnant thereto. 
 
 The internretation clauses referred to are contained in sec. 2 of the Act. 
 
 Division of 5< The division of these Rules into chapters, titles and 
 headings is for convenience only, and is not to affect their 
 construction. 
 
 Interpreta- 
 tion. 
 
 Promulga- 
 tion of 
 Rules. 
 
 6. Every Rule hereafter made shall be construed as 
 intended to come into force on the seventh day after the 
 day of its publication in the Ontario Gazette, unless such 
 prior publication is expressly dispensed with in or bytbe 
 Rule. 
 
OFFICEBS AND OFFICES. 
 
 188> 
 
 CHAPTER II. 
 
 OIFICERS AND OFFICES. 
 
 1. OrricE HocBS, etc., 7-11. 
 
 2. Clerk of the Process, 12-16. 
 
 3. Beoistrar, Local Beoistrars, 
 
 ETC., 17-21. 
 
 4. JcDOMEKT Clerks, 22. 
 
 5. Clerk of Records and Writs, 
 
 23-26. 
 
 6. Marshals and Clerks of As- 
 
 size, 26-29. 
 
 7. Master in Chambers, 30-33. 
 
 8. Referees, 34-40. 
 
 9. Local Judges, 41, 42. 
 
 10. Master's Office, 43-138. 
 (i) General Rules, 43-88. 
 (ii) Salen, 89-115. 
 (iii) Receivers, Committees, etc., 
 116-123. 
 
 (iv) Foreclosure, Sale and Re- 
 demption, 124-138. 
 
 11. Local Masters, 139. 
 
 12. Accountant's office, 140-193. 
 
 (i) General Rules, 140-163. 
 (ii) Mode of paying into Court, 
 
 164-172. 
 (iii) Payment out of Court, in- 
 vestments, etc., 173-191. 
 (iv) Stop orders, 192, 193. 
 
 13. Taxino Masters, 194-197. 
 
 14. Barristers and Solicit... s, 198- 
 
 204. 
 
 15. Shorthand Writers, 20it, 206. 
 
 16. £xi>ERTs, 207. 
 
 1. Office Hours, Etc. 
 
 7- Except during Vacations, and excepting Sundays, oiBce 
 Christmas Day, Good Friday, Easter Monday, New Year's obsOTvedin 
 Day, the birthday of the Sovereign, and any day appointed ?S°court. 
 for the celebration of the birthday of the Sovereign, 
 Dominion Day, and any day appointed by proclamation of 
 the Governor-General, or Lieutenant-Governor, as a public 
 holiday, or for a General Fast, or Thanksgiving, the offices 
 of the Supreme Court, Court of Appeal, and of the High 
 Court of Justice for Ontario and its Divisions, shall be 
 kept open from 10 a.m. to 4 p.m. during the sittings of the 
 respective Divisional Courts, and at other times from 
 10 a.m. until 3 p.m. J. A. Rules 537 and 545. 
 
 fi» The offices of the High Court of Justice, and of the omce 
 Divisions thereof, and of the Court of Appeal, shall be keptomc^w'of 
 open during the Long Vacation, and the Christmas Vaca- au^Si? vlif 
 tion, from 10 of the clock in the forenoon until 12 o'clock oauon. 
 noon. J. A. Rule 635. 
 
 , ■' ..-s&a 
 
184 
 
 OFFICERS AND OFFICES. 
 
 I 
 
 i'pm 
 
 O. No business shall be transacted in any of the offices 
 of the Courts, either in procuring or suing out of process, 
 or in entering judgments or taking any proceeding what- 
 ever in a cause, unless upon the personal attendance of 
 the party on whose behalf such business is required to be 
 transacted, or of the counsel or solicitor of such party, or 
 the clerk or agent of the solicitor, or the clerk of the agent. 
 Eules T. T. 1856, 145. 
 
 Putting an appearance under the door of the office of a Dejjuty Clerk of the 
 Crown during office hours, or handing it to him in the street, was held not to 
 be a due entry of the appearance : (irrji v. Staccji, 10 U. C. L. J. 245 ; and see 
 Fralick v. Huffman, 1 C. L. Ch. 80 ; Campbell v. Madden, Dra. 2. 
 
 But the Court refused to set aside a./f. fa. issued at the officer's house Mon 
 office hours : Eolker v. Fuller, 10 U. C. Q. B. 477 ; and see Hall v. Hunter. 
 5 O. S. 705. 
 
 Where a defendant's solicitor is present at the ojiening of the office toentw 
 an ap])earance, or file a statement of defence, and the i)laintiff's solicitor i« 
 present to sign judgment for default, the defendant's solicitor is entitled to 
 precedence : see Fralick v. Huffm/in, 1 C. L. Ch. 80. 
 
 The offices of the Court should not be opened for business, on days on which 
 they are appointed by statute, or Jiiile of Court, to be closed, and i)rciceedings 
 taken therein on such days are irregular : Trunt and Loan Co. v. iJickmn, 
 2 C. L. J. 166; Mumford v. Hitchcock, « Jur. N. S. 1200. 
 
 10> All officers shall be auxiliary to one another for 
 promoting the correct, convenient, and speedy administra- 
 tion of business. J. A. Rule 415. 
 
 Not in the English Rules. 
 
 2. Clerk of the Process. 
 
 Clerk of H, The Clerk of the Process shall, on receiving a certi- 
 Fmu? writs fied copy of the writ to be filed by him, issue any writ of 
 menTe™" summous required for the commencement of an action, 
 mentof Rule T. T. 1856, 150.^"./ eA ^cf « - ' it./^y.f^^^'-^ 
 
 Rules 9-lit. 
 No busi-. 
 nesB to be 
 transacted 
 except 
 upon 
 
 attendance 
 of party, or 
 his solici- 
 tor, or the 
 clerk or 
 agent of 
 solicitor. 
 
 Putting 
 paper 
 under door 
 of office, or 
 banding 
 same to 
 officer in 
 street, 
 irregular. 
 
 Defen- 
 dant's 
 solicitor, 
 when en- 
 titled to 
 Srece- 
 ence. 
 
 Offices of 
 Court not 
 to be 
 opened 
 when ap- 
 pointed to 
 be closed. 
 
 Officers to 
 be auxil- 
 iary to one 
 another. 
 
 actions. 
 
 Sealing 
 writs. 
 
 (•■ 
 
 Issue of 
 writs. 
 
 The copy is to be certified by the plaintiff's solicitor. 
 
 13* The Clerk of the Process shall have a seal for 
 sealing writs, to be approved by the Judges of the Supreme 
 Court of Judicature, and he shall seal therewith and sign 
 all writs and process issued by him. See B. S. 0. 1877, 
 C.39, 8. 43. . /< / ^- ' :' ' 
 
 18. All other writs required to be issued by the Clerk of 
 the Process to the parties or their solicitors, shall be issued 
 
 *8. Local and 
 duties of their offi 
 jame regulations, 
 Uerk of Records 
 
REGISTRARS, LOCAL REGISTRARS, ETC. 
 
 135 
 
 according to the established practice. 
 152. 
 
 Bule T. T. 1856, eoIw 
 
 14-18L 
 
 14. The Clerk of the Process shall attend in his office Attend- 
 at all times when the Registrars are required to attend in SfflM.** 
 their respective offices, and shall permit all necessary 
 searches respecting writs so issued by him. Eules T. T. 
 1856, 153. 
 
 The office hours are now regulated by Rules 7 & 8 ante. 
 
 VS. The Clerk of the ProcesB shall, on the opening of copies of 
 the respective offices each morning, or as soon thereafter smiuo'' 
 as may be, deliver to the Registrars of the Queen's Bench "egistrars. 
 and Common Pleas Divisions and to the Clerk of Records 
 and Writs for the Chancery Dj,vision, the copies of writs ^^ 
 of summons issued in such Divisions respectively on the 
 preceding day, that the same may be filed with the papers 
 in the respective actions to which such writs belong. 
 Rules of 19 Feb. 1859. See J. A. Rule 5A7. 
 
 16. The Clerk of the Process shall deliver to each of Quarterly 
 the Registrars of the respective Divisions on the first daywrits"^" 
 of January, the first day of April, the first day of July, and 
 
 the first day of October, if not a Sunday or legal holiday, 
 and if so then on the first day thereafter not being a Sun- 
 day or legal holiday, in each and every year, quarterly 
 returns of all writs issued by him during the preceding 
 quarter to the respective Divisions, naming each descrip- 
 tion of writ, and the dates on which the same were issued, 
 to each of the Registrars requiring the same. Rule of 19 
 Feb., 1859. 
 
 8. Registrars, Local Registiurs, etc. 
 
 17. The Registrars or Assistant-Registrars or such Ajt|>^ding 
 other officers as the Judges of the Supreme Court shall "°" 
 approve of, shall attend the Weekly Sittings of the High 
 
 Court in rotation. New. 
 
 Seenoteto/di<fe 3. 
 
 18« Local and Deputy Registrars are to perform the ""'^^J'^'Jg 
 duties of their offices in the same manner, and under the JeSang^to 
 same regulations, as the like duties are performed by the & w^, to ^' 
 Clerk of Records and Writs; and all Orders, Rules, and'PP^y*® 
 
 'jfif/i 
 
 _^i-^- 
 
186 
 
 OFFICERS AND OFFICES. 
 
 «■-- t I 
 
 Bolt m regnlations in force respecting the Clerk of Becords and 
 DepTa^ Writs, and respecting the regulation of hia office, are to be 
 ttftni. in force and applicable to the Local and Deputy Registrars in 
 relation to such duties as they are hereby required to p^^ 
 form ; and the like sums and fees payable to the Gletk ot 
 Becords and Writs, are to be payable to the Local acd 
 Deputy Begistrars, in relation to similar matters. Ghy, 
 0.34. 
 
 For Rulct relating to the duties of the Clerk of Records and Writs : see Rutei 
 23-26. 
 
 This Rule appears to be defective in not including Deputy Clerks of the Crown 
 in its provisions, inasmuch as they have to diHchargt- similar dutiex in actions in 
 the Queen's Bench and Common Pleas Divisions to those herein j.nivided for 
 by Local and Deputy Registrars : see post Hide 20. Perhaps in view of R\dt 
 20 the present Huh is unnecessary. 
 
 Whether Local Masters, and Dejnity Registrars, under the former practice in Chan- 
 Iiooal Mae- eery, were not at liberty to practise themselves in Chancery, nor were they 
 ten may even at liberty to practise in partnership with solicitors practising in Clmncerj', 
 practise— although they might not actually share in the emoluments arising from such 
 '**"''*■ business : McLean v. Vrosg, 3 Chy. Ch. 432. After the merging of the three 
 
 Superior Courts into one, it was doubtful whetiier a Master could pnictine at all, 
 even though he confined his practice to the (Queen's Bench and Conuiioii Plea* 
 Divisions of the High Court ; as under the new system he is just as much an 
 oflBcer of those Divisums as he is of the Chancery Division ; but see Rule \Si 
 poit, frf)m which it may be inferred, that it is not the intention of The Judica- 
 ture Act to deprive them of the right of practising ; and see also sect. 125,8-9. 
 12 ante. 
 Vees. Th^ ^^es now payable to Deputy Registrars, Deputy Clerks of the Crown, 
 
 and Local Registrars, are regidatecl by tiie tariff ^oxt. 
 
 OflBcers paid by fees are entitled to receive all fees payaVile under the tariff, 
 in cash, but those fees payable under any statute not expressly requiring 
 them to be paid in cash, must be paid in stami>M. 
 
 ^pnty 19. Where the offices of Deputy Clerk of the Crown and 
 th? Crown Deputy Eegistrar in any county are not held by the same 
 ^Jg^y person, the Deputy Clerk of the Crown shall iii actions in 
 the Queen's Bench and Common Pleas Divisions have the 
 powers and duties of a Deputy Eegistrar (not Local 
 Master), in addition to the powers and duties heretofore 
 belonging to a Deputy Clerk of the Crown ; and the Deputy 
 Begistrar shall in actions in the Chancery Division have 
 the powers and duties of a Deputy Clerk of the Crown, in 
 addition to the powers and duties heretofore belonging to 
 a Deputy Begistrar. In counties where there is a Local 
 Begistrar, every reference in these Bules to the said two 
 offices, or either of them, shall be deemed to apply to the 
 Local Begistrar. Bules 417, 545. See J. A. s. 125 (5). 
 
 This Rule in effect continues all the powers of the Deputy Clerks of the 
 Crown and Deputy Registrars at the time when the Ont. .1. A. 1881 wii 
 passed, and gives to each of these officers the powers of the other as well m u 
 
 30. Subject 
 
 commenced in 
 
 Clerk of the 
 
 respectively sh) 
 
 relation to the ; 
 
 in the case of f 
 
 in his office, all 
 
 entered (except 
 
 Local Master ol 
 
 diction vested ii 
 
 in the office of 
 
 Local Eegistrar. 
 
 See Eng. R. 1875, o 
 
 The English Rule n 
 in the Dintriot RegisI 
 authority to make ord 
 to the District Registi 
 
 21. Every Dej 
 and Local Eegii 
 transmit to the ] 
 list, in the form ] 
 which have been 
 such period ; anc 
 several Divisions 
 up, a general int 
 open to inspectioi 
 of the usual fee. 
 
 .23. Two of the 
 
 tion to their othei 
 Court, for the pm 
 special judgments 
 
 Not in the English Ri 
 Judgments are now d 
 orDeputy Clerk, at the 
 such as were formerly c 
 reouire to be settled; t 
 i^iSVtif.theycan, 
 S\M"*ctionwa8f„ 
 wl"",""*** Dorset 
 ^- (Mfcirio Loan .t Dep,, 
 ""Mutes may be varied 
 "ofcetotheotherS. 
 
 i?''^ judgment in 
 •'""igetovarytheminut 
 
JUDGMENT CLERKS. 
 
 187 
 
 30« Subject to the foregoing Rules, where an action is RoIm 
 commenced in the office of a Deputy Registrar or Deputy ^^ ^^ 
 Clerk of the Crown or Local Registrar, those officers ordera° 
 respectively shall have all such powers and authorities in 
 relation to the action as the Clerk of Records and Writs has 
 in the case of an action where appearance is to be entered 
 in bis office, all such orders in the action as require to be 
 entered (except orders made by the Local Judge or the 
 Local Master of the county under the authority and juris- 
 diction vested in them under these Rules) shall be entered 
 iu the office of such Deputy Registrar or Deputy Clerk or 
 Local Registrar. Rules 418, 509 ; Chy. 0. 35. 
 
 SeeEng. R. 1875, o. 35r. 2. 
 
 The EngliHh Rule makes provision with reference to the entry of judgments 
 in the DJHtrict Registries established by ihe Judicature Act of 1873. The 
 authority to make orders where actions proceed in the District Registry isgiven 
 to the District Registrar, not to the County Court Judge t)r any other officer. 
 
 21. Every Deputy Clerk of the Crown, Deputy Registrar, Liitof 
 and Local Registrar, shall once in every three months iutlrad^in 
 transmit to the Registrar of each Division at Toronto, a°ttfoe8tobe 
 list, in the form No. 216 in the Appendix, of all judgments Jo'j^^^^ed 
 which have been entered by him in such Division during office of oi- 
 such period ; and from the said lists the Registrars of the Toronto, 
 several Divisions shall prepare and from time to time keep 
 up, a general index or list of judgments, which shall be 
 open to inspection by all persons interested, upon payment 
 of the usual fee. See J. A. Rule 517. 
 
 4. Judgment Clerks. 
 
 23. Two of the officers of the High Court shall, in addi- JudBmont 
 tion to their other duties, be Judgment Clerks of the High 
 Court, for the purpose of settling the form and terms of 
 special judgments and orders. See J. A. Rule 416. 
 
 Not in the Enplish Rules. 
 
 Judpnents are now drawn up by the Resist. ar, Deputy, or Local Registrar, Settling 
 or Deputy Clerk, at the office where the writ and pleadings are filed. In cases minutes. 
 suchaswen^ formerly dealt with by the Court of Chancery, where minutes 
 tfquire to be settled, the parties attend in country cases before the Local 
 officer; but if they cannot agree beft)re hini as to the projjer form of the judg- 
 nient, a direction was fonnerly required to be obtained, on motion to a Judge, to 
 refer the minutes for settlement to one of thf iTudgment Clerks : Breckenridge 
 t- Ontario Loan .0 Deposit Co., IOC. L. J. l40; 3 C. L. T. 212; but now the 
 minutes may be varied by application to a Judge or a Judgment Clerk on 
 notice to the other parties interested : see Rule 7C1. 
 
 Entry of judgment in the Local office does not prevent an application to a 
 .lud({e to vary the minutes. The Court will, for a time at least, encourage the 
 
 -1'' 
 
 
 
lit 
 
 188 
 
 OFFICERS AND OFFICES. 
 
 Rult 38. HuttlinK of judffmf nts by tlio JudffniPiit ClerkH, in ordj^r to prt'Hervc unifonnitv 
 in the langnaK"* "f judgnnentH : Hittdrn v. Smith, 20 C. L. J. 370; 4 C. L. t 
 541 ; 10 P. R. 3(«t ; mi-o iiImo 4 C. L. T. 5<i8. See furtiier m to diitJPH of Judg- 
 ment Clerks, Hii/cn 7f)0-()3. 
 
 A judpnnent, though by coiiHent, is a Rolemn jiidinnent of the Court, and 
 cannot be iiltt-red by connent of the partieH without tlie Hunction of the Court' 
 The Bellciiirn, 34 \V. R. 56. 
 
 CJcrk of 
 Hecords 
 and WritB, 
 dutieH i>(. 
 
 Clkrk OF Eecords and Writs. 
 
 2SI* The Clerk of Records and Writs is to perform in 
 the Chancery Division, the same duties as heretofore iu 
 relation to the several matters hereinafter mentioned, that 
 is to say : 
 
 1. Receiving, filing, and custody of, pleadings, petitions, 
 reports, depositions, affidavits, bonds, and other papers 
 and proceedings, and making entries thereof in the proper 
 books. 
 
 2. Amending pleadings. 
 
 8. Entering consents, and notes of default in pleading 
 and giving certificates thereof. 
 
 4. Certifying proceedings. 
 
 5. Examining and authenticating office copies of plead- 
 ings and other proceedings. 
 
 6. Preparing and issuing writs, other than those 
 required to be issued by the Clerk of the Process, commis- 
 sions and orders of course. 
 
 7. Preparing and signing certificates for registration, 
 and issuing the same. 
 
 8. Attending on the opening of commissions. 
 
 10. The care and custody of all documents ordered to be 
 deposited for safe keeping, or produced under any order of 
 Court. 
 
 11. The care and custody of the books kept under the 
 Act for Quieting Titles, and making the necessary entries 
 therein. 
 
 12. Preparing and signing certificates of the filing of 
 petitions, under said Act, and issuing the same. 
 
 13. Transmitting such petitions to the proper Referee. 
 
 14. Entering and issuing certificates of title and convey- 
 ances, granted under the said Act. Chy. 0. 28. 
 
CLERK OF KECORDB AND WRITS. 
 
 189 
 
 15. Attending with records and exhibits on the Judges Rule 34 
 of the Court or elsewhere. 
 
 16. Setting down actions for trial and motions for the 
 Divisional Court. 
 
 17. Setting down all motions, appeals, demurrers and 
 special caseB in all Divisions of the High Court for the 
 weekly sittings, and all appeals in Chambers. 
 
 OtdeiH of coiirsf, ruft^rrerl to in claiwo (J, ivm thoMn ortltTH which, accoifling t(» Onlers of 
 the practice of tlit» Court of Chiinccry, could In- oI>taiiie<l on prieciiH- without couvho. 
 ,in actual motion thcivfor ; or which, ivt CJoninion Law, weni calliKl "nidn bar 
 rulcii,'' and which were i«HU«Hl on tlm tiling' of a motion uaiK'r Higni'd by Coun- 
 *1 : see Utile 2."). Tht^ nioMt coninion ordrrM of thin kin<l were : 
 
 1. Onli'W for w'curity for coNtn, when* tlm writ or otlu-r (triKwdinj? by whittii 
 aiiiiction is conuut'iict'd dinclosfs <in its face, tljat the plaintiff or person attking 
 wlitf, (wf J. A. H. 2) is resident out of the juriHdiction : Jiulc 1242. 
 
 2. Orders to jtroduce, under /liilc 508. 
 
 3. Ordci's for apiKtintnient of guardiauH of infants when necesHary : nee Chy. 
 Oni. (ilO, but the iM)wer to issue orders of this kind seems now t<> Ik( abro- 
 Ifated, owiii(f to the omission of Chy. (). (ilO from the present consolidated JluUn. 
 
 i. Orders to continue procetMlings where the death or marria^^e of parties, or 
 till' transmission of interest pendente lite, renders it necessary for other [Kjrsons 
 to be made parties to the action : /f«/f(>22. 
 
 5. Orders for sheriflPs to return writs, or to bring in the Ixxly, 
 
 (i. Orders for leave to plaintiff, or defendant, to change his solicitor, or soli- 
 citur and ivgeiit, — or to i>rosecute, or defend, in person, insteiid of by a solici- 
 tor,— or t« eiiiil)Ie one of^ several ])lainti(fs to apiioint a solicitor fr)r the pur|K)se ' 
 of makin),' an application separat*' from his co-plaintiff, — or to enable a solicitor 
 of a plaintiff, or defendant, to change his agent. 
 
 ". Orders for delivery and taxation of solicitors' bills of costs, on the applica- 
 tion of a client : or for the taxation alone of such bills on the application of the 
 client within a numth fron» the deli verv thereof, or on the apiilication of the 
 lolicitorat any t ime after such month : see Rule 122S. Fomierly orders of cour8(i 
 for delivery and taxation wei-e issuable by the Clerk of Reconls and Writs 
 min origuial Rule 444, in the Chancery Division, and orders of course for 
 taxation alone, were issued by the Registrar of that Division ; but now all 
 orders of course in the Chancery Division at Toronto are to be issued by the 
 Clerk of Records and Writs. 
 
 For oti'er orders issuable as of course, see J>aniers Pr., 5th ed., 2002—2012. 
 
 Allordei's of course .ire to be drawn up on pr,^K3i|je : see Rule ^} jiost. 
 
 Certificiiti'H of officeisasto pi-ocet^lings in the"r offices are conclusive ; and 
 •ffidavits carnot Ik^ rtad to contradict them : Btfrnn v. Bnrjess, 10 Jur. (53; 
 F^y\.Urifitli, 2Moh 318. 
 
 24. The Clerk oi Records and Writs shall make out and 
 transmit to the proper Registrar a list of all actions and 
 matters sot down for trial or argument as soon as the 
 time for setting the same down has elapsed. See Chy. 
 
 The list of causes here referred t' is jxisted up at Osgoode Hall, outside the 
 •-oiirt Room, and the cases are taken by the Court in tlie order in which they 
 "PPear upon the list, unless otherwise ordered by the Court. 
 
 - ?c^t^/^^ L.-^^^ a^-.^r^ /^/ujtc/i u^^^^ (^^^^y 
 
 
 l 
 
p^ 
 
 140 
 
 OFFICERS AND OFFICES. 
 
 BnlM 
 
 Rules 
 wbicli by 
 Bugliiib 
 practise, 
 were 
 
 granted, of 
 course, to 
 be granted 
 by Kegis- 
 trars and 
 'Clerk of 
 Records 
 «nd Writs; 
 in same 
 manner 
 
 Who to 
 oiSciate as 
 Clerks of 
 Assize. 
 
 25. All orders of course, or which by the English prac- 
 tice, prior to the first day of Trinity Term, 1856, might be 
 had as a matter of course upon signature of counsel at side 
 bar, or were given by tho Master, Clerk of the Papers, or 
 Clerk of the Rules, in England, whether in Term time or 
 in Vacations are to be .ssued on praecipe at any time, 
 by the Registrars of the Queen's Bench and Common Pleas 
 Divisions, Clerk of Records and Writs, or the Deputy Clerk 
 of the Crown, Deputy or Local Registrar as the case may 
 require. See Rules T. T. 1856, 120 ; Chy. 0. 25, 595. 
 
 5. Marshals and Clerks of Assize. 
 
 26. The Deputy Clerks of the Crown and Local Regis- 
 trars in the several Counties and Unions of Counties, 
 except the County in which the City of Toronto is situated, 
 shall ex officio be and act as Marshals and Clerks of Assize 
 at the Circuit Siitings of tho High Court for the trial of 
 causes, matters and issues, and of criminal matters or 
 proceedings, and at any Courts of Assize and Nisi Prius, 
 Oyer and Terminer, and General Gaol Delivery, appointed 
 to be holden by commission in their respective Counties or 
 Unions of Counties, and shall have all the powers and per- 
 form all the functions incident to the same as such 
 Marshals and Clerks of Assize. R. S. 0. 1877, c. 41 s. 13. 
 
 To make 
 return of 
 proceed- 
 ings and 
 tranKiiiit 
 indict- 
 meuts. etu., 
 to tliu lio);- 
 istrar of 
 ■Queen's 
 Bench Di- 
 vision. 
 
 2T« The said Deputy Clerks of the Crown and Local 
 Registrars respectively shall, immediately after each 
 sitting of such Courts, forward by post to the Registrar of 
 the Queen's Bench Division at Toronto, every recognizance, 
 indictment, paper or proceeding in any criminal matter, 
 in their custody aa such cflficers respectively, and also the 
 usual and proper returns as such Marshals and Clerks of 
 Assize. R. S. 0. 1877, c. 41, s. 14. 
 
 «"eVo"ta«o (**) '^^^ Deputy Clerks of the Crown and the Local 
 
 thereon. Registrars shall pay the postage on the transniission to 
 
 ^^'^ Toronto of the indictments and other proceodings in 
 
 criminal cases, and the same is to be repaid out of the 
 
 Consolidated Revenue Fund. R. S. 0. 1877, c. 41, s. 15. 
 
 i^nTaeVk 28. The Marshal and Clerk of Assize for the County of 
 for^coSnty ^^o^k, shall perform the duties of Marshal and Clerk of 
 of York. Assize at the Sittings of the High Court for the trial of 
 

 MARSHALS AND CLERKS OF ASSIZE. 
 
 141 
 
 causes and issues and of criminal matters or proceedings, R«i« a*, 
 and at any Courts of Assize and Nisi Prius, Oyer and ^""«>8, 
 Terminer and General Gaol Delivery holden for the County 
 of York, and shall be subject to all the provisions of this 
 Act, in reference to records, exhibits and other documents ; 
 and be shall also perform such other duties as he may 
 from time to time be directed, by Rules of the Judges of the 
 Supreme Court, or High Court utiuar section 105 of the 
 Judicature Act to perform; and subject to such duties and 
 Rules, he shall be a Clerk in thf office of the Registrar of 
 the Queen's Bench Division. 
 
 (h) The person so appointed shall take and receive the Fees, 
 same fees only as other Marshals and Clerks of Assize ; 
 auJ such fees shall be by him accounted for, paid over and 
 applied in the manner provided by law ; and he shall not 
 take for his own use or benefit, directly or indirectly, any 
 fee or emolument save the salary to which he may be 
 entitled by law. 
 
 (c) When the Circuit Sittings of the High Court at the [;|f^J'i?j°',j,j. 
 County Town of the County of York for the trial of civil criminal 
 r.nd criminal proceedings are held separately, or when any heuun ''°" 
 Court of Asfize and Nisi Prius by commission in the ^;°[?^\*y "' 
 County of Yorl: is held separate and apart from anv Court s"'"" ti'no 
 of Oyer and Terminer and General Gaol Delivery held by for oivii 
 commission in the said County, and at the same time, the *"*'*' 
 Registrars of the Queen's Bench and Common Pleas Divi- 
 sions of the High Court shall alternately, personally or by 
 Deputy, act as Clerks of the Sittings for criminal proceed- 
 ings or of such Courts of Oyer and Terminer and General 
 Gaol Delivery, only as long as such separate Sittings or 
 such Courts are being held at the same time, and shall, 
 while so acting, have all the powers and exercise all the 
 functions that are by law had and exercised by Marshals 
 and Clerks of Assize. R. S. 0. 1877, c. 41, s. 16. 
 
 id) The Marshal and Clerk of Assize for the County of to return 
 York, shall forthwith, after the close of each Assize, orSfufexM- 
 earlier if required, return to the Clerk of Records andj^^tVaM^f" 
 Writs, and the Registrars of the Queen's Bench and^jfferent 
 Comnaon Pleas Divisions, all records in their respective 
 Divisions, together with all exhibits and other documents 
 appertaining thereto. Rule of 16th May, 1876. 
 
P' 
 
 4i- 
 
 142 
 
 OFFICERS AND OFFICES. 
 
 Kuies 29. In the event of any Marshal or Clerk of Assize or 
 
 Abs!!l'ce of Registrar being absent, or being prevented by illness or 
 Clerk of other cause from performing his duties as such Marsha 
 "or Clerk or Registrar, the presiding Judge at sue' !tti 
 or Cor \,s may authorize some person to act as Maiblial or 
 Clerk of Assize, and the person so authorized to act shall 
 receive the remuneration payable for the performance of 
 the duties. R. S. 0. 1877, c. 41, s. 17. 
 
 Assize ])rO' 
 Tided foi 
 
 Master in 
 Cha tubers. 
 
 Criminal 
 matters, 
 «tc. 
 
 Appeals. 
 
 Luuaoy. 
 
 Arrest. 
 
 Petitions 
 by trustees 
 for advice. 
 
 Custody of 
 infants, 
 
 Lenses and 
 sales of set- 
 tled 
 
 estates. 
 
 Settle- 
 ments by 
 infants.etc. 
 
 6. Master in Chambers. 
 
 30. The Master in Chambers, in regard to all actions 
 and matters in the High Court, including proceedings ii 
 the nature of quo warro nto under The Municipal Act, shall 
 be and hereby is empowered and required to do all such 
 things, transact all such business, and exercise all such 
 authority and jurisdiction in respect to the same as by 
 virtue of any statute or custom, or by the rules of practice 
 of the Superior Courts, or any of them, respectively, were 
 at the time of the passing of the Acts 33 Vict. (0.) cap. 11, 
 37 Vict. (0.) c. 7 and The Ontario Judicature Act, 1881- 
 or are now done, transacted, or exercised by any Judge of 
 the said Courts sitting at Chambers, save and except in 
 respect to the matters following ; 
 
 1. All matters relating to criminal proceedings, or the 
 
 liberty of the subject ; 
 
 2. Appeals and applications in the nature of Appeals ; 
 
 3. Proceeding!^ as to Lunatics under the Revised 
 
 Statutes of Ontario, chapter 54, sections 5, 6, 
 7, 8, 9, 17 and 18, and chapter 4i, section 
 140; 
 
 4. Applications to arrest ; 
 
 5. Petitions for advice under the Revised Statutes, 
 chapter 110, section 34. 
 
 6. Applications as to the custody of infants under 
 the Revised Statutes, chapter 137, section 1; 
 
 7. Applications as to leases and sales of settled 
 estates ; to enable minors, with the approba- 
 tion of the Court, to make binding settlements 
 of their real and personal estate on marriage ; 
 and in regard to questions submitted for the 
 
■^"^ "W^^ 
 
 MASTER IN CHAMBERS. 
 
 143 
 
 opiniAn of the Court in the form of special >'>i« >•• 
 cases pn the part of such persons as may by oMes.*' 
 thenselves, their committees, or guardians, or 
 otherwise, concur therein ; 
 
 8. Opposed applications for Administration Orders ; fjl^'jll,"'^;^ 
 
 9. Opposed applications respecting the Guardianship [nfinu'^ 
 
 of the person and property of Infants ; elutes 
 
 10. Applications for Prohibition, Mandamus or In- Mandamus 
 
 junction. ti< 
 
 11. Proceedings as to Partition and sale of Real Partition 
 
 Estate, under the Revised Statutes, chapter 
 
 // ^ /, 
 
 104. 
 
 /7^^ /. 
 
 1&. Applieanon^ for f^vel^ ap^ftr'after 
 
 
 the timeAppiica- 
 limited for that purpose has elapsed. api'tai. 
 
 13. Appeals from Judges of County Courts or Local Apiieais. 
 
 Masters, or in respect of any other matter 
 which by these Rules is expressly required to 
 be done by a Judge of the High Court. 
 
 14. The payment of money out of Coiirii, or dispensing I'aymont 
 
 with payment of money into Court, in admin- coma. 
 ^ istration and partition matters, 
 
 and except (unless by consent of the parties) in respect of 
 the following proceedings and matters, that is to say : — 
 
 The removal of causes from Inferior Courts, other than '" certain 
 the removpl of judgments for tbe purpose of jurisai? 
 having execution. 
 
 Tbe referring of causes^^ ' < ^^^< \^^^.~.if'^^^/ 'S ^ 
 
 Reviewing taxation of costs, except as provided 
 Rule 854. 
 
 Staying proceedings after verdict or judgment. 
 
 J. A. Rules 420, 548 ; Chy. 0. 560 ; C. L. Rules of 9th 
 Feb., 1870. 
 
 This /Jh/c ooiitiviiis a conHDlidiition of tlu' Oliv. Ordf rs and C. L. Ku1(>h, Pcojie of 
 'Iffimng the jnnsilicticm of tin- Iv'l.Tff in ChamlHTH and the Clt'rk of the Uule. 
 •'w»T> and ri.iiH in ChamlnTs In-forc tlu» Ont. .lud. Act, 18H1, top-thcr with 
 'M extension of such jiiriHdiction rondcred neces»arv hy new pnivinionH under 
 'w, lud. Act. Tlie Mattter in Chanilx-rti Ix-came under that Act jH)8«e88ed of 
 tW'|)(iwpr» ill Clmnil)e>-M wliicli lM)tii the former ofticern had, but Huuject to the 
 fwtnctions phux'd uixin the iM>wers of either tif tiieni : see uriginal Rult 42(> 
 ■»'•"< fK/« V. JF,rr</, 18 C. L. J. It'i6. 
 
 tion by 
 consent. 
 
 - ,)" 
 
 
144 
 
 Bute 30. 
 
 Setting 
 aside 
 
 fraudulent 
 convey- 
 ances. 
 
 Dispensing 
 with wife 
 executing 
 deed. 
 
 Applica- 
 tions for 
 partition. 
 
 OFFICERS AND OFFICES. 
 
 Under the Jud. Act, jurisdictiou of quite a new kind was conferred by varj. 
 0U8 I{ul€» Hixin a Judge in Chambers. The former Referee by Chy. Order 560 
 and the Clerk of the C. & P. by Rules of Feb., 1870, (see 29 U. iC. Q. B. 623) 
 were limited to the powers at the date of those Ordere and Rules resjiectively 
 possessed by a Judge in Chauibers : see Quvtn v. Smith, 7 P. R. 421) ; Collver-^. 
 Swaiizif, 8 P. R. 42. To settle doubts as to the jurisdiction of the Master in 
 Chamlwrs, more especially under original Jiulc 80 (now 739) J. A. Jtule 548, 
 consolidated above, was passed. 
 
 This Rule apixjars to !» intended to confer on the Master in Chambers all 
 the jurisdiction of a Judge in Chambers at the time of these Hulm coining into 
 force, (. ('., 1st Sept., 188S, except as to the matters alxjve excejjted. The 
 word "now " in the latter part of this J{\,c can hardly refer to any otlier period 
 of time, as no date is affixe<l to the Rulrn ; but it is tc/ be noted that the word- 
 ing of the Rule has lieen changed in an imix>rtant particular by the substitution 
 of the word "of " for "or" in the seventh line : so far as this change is con- 
 cerned, however, it may lie observed that the Rule follows tlie statute under 
 which it is authorized to be made : see sec. 105, s-s. 1 (t/). The Master in 
 Chaml)er8 has, therefore, now power to entertain applications to set aside 
 fraudulent conveyances, &c. by judgment debtors, under Ritlcg 1007-1011, which 
 the Referee in Ciiancery Chambers did not formerly ixissess : see Qiurn v. Umilh, 
 7 P. R. 429 ; and Wark v. Moulton, 7 P. R. 144 ; but it was exercised by tiie 
 Clerk of the Crown and Pleas in Ciiambers : see Wattn v. Hol/noii, 7 P. R. 334. 
 He may al.stt have |)ower to make orders disjiensing with a wife Joining in iicim- 
 veyance by her husband, under R. S. (J. c. 133 ss. 9, 10, a jurisdiction he did nut 
 formerly jKissess : Re Nolan, (i P. R. 115. \J\v.m a strict construction of the 
 language of Ritlv 989 by that of the j)resent Rnh' it migiit be said that lie lias &U\ 
 jM)\ver to grant judgments for partition on summary ajiplications in Cllambt•^, 
 which was fomierly excluded from his jurisdiction: Re Arvott, < 'htitt' rlnn \. 
 ChattvrUtn, M P. R. 39 ; unless it can be said that the necessity fordiiittinga 
 reference to anotiier officer, excludes sucli motions from his jurisdiction. But in 
 Heiutrickn v. Hvndrickn, 13 P. R. 79, it was held tliat tiie mere consi Nidation (if 
 the Rithn could not work a construction whicli was not in acconiancc with tlie 
 iK)licy upon wiiicli Rule 1187 (driginally promulgated along with RiilcW) \m 
 framwl. Local officers generally would not api)ear to have jurisdiction under 
 Jlttlf W.), init onlj' Local Masters. It would therefore se«'m to Ik- still contrary 
 to Rult 'MU, that the words "Judge in Chambers " therein siiould by the aid 
 of Riilf 30 be nuule to extend to the Master in ChamlKirs and by force nf link 
 41 to Local Judges also. 
 
 References 
 
 to Masters, 
 
 Quo war- 
 ratUo. 
 
 The right of the fonner Referee in Chambers to direct a reference toaMa«tiT 
 ' was denied : Brown v. Ihillard, (! 1*. R. 113 ; (this case was affirmed on rehear- 
 ing, however, on anf)ther ground, viz : that the relief should have \wv\\ souglit 
 under Chy. Ord. 398 it Mq.) ; see also Qhkii v. Smith, 7 P. R. 42!t ; and simy 
 the Judicature Act the right of the Master in Chamb«'rs to direct such a refer- 
 ence under the Dominifm Winding-up Act has also been denied : Ri' V"''«i '''',' 
 Rejining Co., 10 P. R. 415 ; Re Joseph Hall Manufacturing Co., 10 V. R. ^■ 
 
 The jurisdiction of the Master in Chambers in quo warranin proceedinp 
 under the Municipal Act affirmed in Reg. r;r. rcl. Frlitz \.\Howland, 11 P. R. 2W. 
 and denied in Reg. ex. rel. Wilnon v. Duncan, ih. 379, has been settled bythi- 
 Rule. He has also power to direct a reference to a County Judge to take evi 
 dence in such a matter under sec. 212 of R. S. O. o. 184, /uy. v. MtChh 
 13 P. R. 9«. See also notes to F.de 41. 
 
 The jurisdiction to entertain a motion t« change the venue in a County Court 
 action was doubtetl : Brighavi v. McKcnzie, 10 P. R. 4W> ; but is now settW 
 by Rule 1200. , 
 
 Wliere a statute passed after 1'.71 merely enlarge<l the power of a J"'^sy 
 Chambers, in a Ciwe in wliich the Referee m Chambers had previoiislyexercuw 
 jurisdiction, it w;as held that the Referoe could exercise the adflitional poW" 
 conferred by the statute uixm a Judge in Chambers : Collver v. Simft' 
 8 P. R. 42. 
 
 "! ^ to exclude tlie iur 
 
MASTER IK CHAMBERS. 
 
 145 
 
 There is jurisdiction under the Mechunics Lien Act to hear a motion to Rule 30. 
 annul r«sr>'*t^''<^^'<>" "^ '^ mechanic's lien, where thr^ amount in question is under 
 1200: Kt Cornish, 6 Ont. 250 ; Re Moorehoute v. Leak, 13 Ont. 290. 
 
 By Rule* 41 and 138 the jurisdiction conferred on the Master in Chambers Local 
 is extended tt) Local Judges and Local Masters who do not practise; except -Judges and 
 in proceedings in the nature of a qi«" varranto imder the Munici])al Act, for ^'**'®'^*' 
 liayment of money out of Court, or disi>ent. .ig .with payment into Court, 
 upiieaJs from the taxing oflicers at Toronto (lending taxations, or making orders 
 for the sale of infants' estates. 
 
 Applications to the summary jurisdiction of the Court against solicitors, Matters 
 wetenekl to l)e excluded from the jurisdiction of the Referee: Re L. AM., excluded 
 (IP. R. 21 ; but see /Jr Carroll 2 Chy. Ch. 323 ; Rt Walker, ib. 324 ; Re Toms, .i^cl'/on"''"" 
 ih. 381 ; Rr Attorncii, 7 P. R. 174 ; also ajiplications by parties claiming 
 adversely to a receiver, or sequestrator : see Jlrown v. DoUanl, (J P. R. 113, 
 also an ainilication by a jierson claiming adversely to the heirs or next of kin 
 in an 'nhnniistration suit to be made a party in the Master's office and for leave 
 to establisli his claim there : Re Ttiliin, Tohin v. Tohin, 7 P. R. W7 ; and 
 an application for payment into Court l)y an executor or tulministrat<<r of 
 nionb,v admitted by liiin to be in his hands : Re Curry, 8 P. R. 340 ; but see now 
 Rak 750, 
 
 The Master in Chaitibers has no jurisdiction on conflicting evidence to strike 
 out pleas, raising questicms of liabilit.y iireliminary to an account and order an 
 account to lie taken : Riian v. Fhh, 20 C. I^. J. 114 ; nor to set aside a judgment 
 (li a crwiitor against an absconding debtor to enable another creditor to defend : 
 Wilh V. Carroll, 10 P. R. 142. 
 
 Where no 
 jurisdic- 
 tion, ad- 
 journment 
 before a 
 j udge re- 
 fused. 
 
 Leave to 
 Appeal. 
 
 Where an ajiplieation was made to the Referee, which he had no jKiwer to 
 entertain, li>' refused to adjourn it before a Judge : L<ipj) v. Lapp, 3 Ciiy. Ch. 
 m, ortoliear it even by consent : Thompson v. Freeman, 4 Chy. Ch. 1. Such 
 cases have, however, sometimes been adjourned before a Juflge. 
 
 Lffirf to (I ppra I— The restriction of clause 12 did not extend to ,ipj)lications for 
 leave to a|)|)eal from a Master's report : Russel v. Brueken, 3 Chv. Ch. 488, 
 l'':it only to apolicatioiis for leave to apjieal to the Court of Apjieal : Lawjtrii 
 ;. bmmntlin, iLH'fure Dalton, M.C. 25 June, 1884; and .see Rv Uabouriv, 12 
 1'. R, 2,)2. 
 
 Lihirlii of the Suhjcet, — Formerly the Referee in ChamlKTs could entertain Liberty of 
 umtions to commit for disobedience of an order to iiroduce, but the Clerk of tlie sub- 
 theC, & P. (.}. B. had no jurisdiction in matters relating to the lil)erty of the i^'^*'- 
 Mihjtct. The latter nAstriction is ctmtinued under this Rule, and is held to 
 I'revent the .Master in Chambers from entertaining motions to comiwl olH'dieiiee 
 loan order for j)ro<luction by committal : Kevfcv. Ward, 18 C. L. J. bHi. He 
 liaiialso no junidictitni to order the discharge of a defendant held in cusKxly 
 mider a m. m. : Cochrane v. Lamon, 11 ]'. R. 351. 
 
 Appeuh.— An ai>]>lication imije-iching the jirojiriety of a filing, is not an .Vppoals, 
 apKal or in the nature of an ap|N^al from tlie officer who filed the document, eti:. 
 «i as to exchule the jurisdiction of the Master in ChamljtTs : Watirous v. 
 t'imm, (i p. R. 31. 
 
 Thf rcfirriiiii of Causes. — The original exjiression "The referring of causes RofenMni,' 
 under the C L. P. Act " was held not to l)e restrict^'d to causes Ijfgun by writ causes, 
 oti'iunmons: Bank of Hamilton v. Bain,, 12 P. R. 418. The expression now 
 substituted seems tit ))e without any restriction. 
 
 References to Referees under sees. 101 and 102 of the Act cannot lie made by 
 'hi- .Master in Chambers : see notes to those sections. 
 
 ^'iijinij promilini/s after Verdict or Jiidiinuiit. —The words "or judgment'' Staying 
 MV(- bei.ii added in the ( 'onsolidation of the iii</f,t, ])robably meaning judg- procecU- 
 o«tat the trial, as the result of the tri.-vl is now not usually a verdict merely 'ugs. 
 
 'jt a jiulgnienl in the action, uh formerly in Chancery and at Common Law 
 "acre the trial was by a Judg<; without a jury. 
 
 J.A. 10 
 
 t.s.: 
 
146 
 
 RnlM 
 81-84. 
 
 Official 
 RefereeH 
 may Bit in 
 Chambers 
 for M. in C 
 
 M. C. may 
 refer to 
 Judge. 
 
 M. C. to 
 Rign orders, 
 
 Trial be- 
 fore 
 referee. 
 
 CFFICERS AKD OFFICES. 
 
 Probably the alteration will not affect the imwer of the Master in Chamben 
 to stay proceedinffH upon a reference or exectition under a judgment iiendins' 
 an appeal, and which under t le English Rules has been held exerciKanle by i 
 Master : Oppert v. Beaumoi t, 35 W. R. 266 ; 56 L. J. Q. B. 21(1 ; 8ee alao 
 Bule* 2 and 805, and Butler v. Staiulard Int. Co., 8 P. R. 41 ; Powell v. Pttk 
 ib. 85. 
 
 81. Any official Eeferee, upon request of the Master in 
 Chambers, or of a Judge of the High Court, may sit with 
 or for such Master ; and while sitting for him shall have 
 all the authority and power of such Master, but shall not 
 be entitled to any fees. J. A. Eule 421. 
 
 See Rule 88 (h) making Himilar provision where an official Referee Hits for the 
 Master in Ordinary. 
 
 32* The Master in Chambers, or Referee sitting for him, 
 may refer any matter pending before him to a Judge of the 
 High Court for decision, and the Judge may dispose of the 
 same in whole or in part, or refer back the whole or a part. 
 See J. A Rule 426. 
 
 See note to Ride 42. 
 
 33. The Master in Chambers, or other officer holding 
 chambers, shall sign all orders made by him, and shall 
 cause such as require entry to be entered in a book to be 
 kept for that purpose. See Chy. 0. 565. 
 
 As to Orders i-equired to be entered : see Riilfx P-lfi, "74. 
 
 7. Refkrees. 
 
 34. Where any cause or matter, or any question in any 
 causo or matter, is it'ferredto a Referee, he may, ?'abjectto 
 the order of the Court or a Judge, hold the trial or reference 
 at, or adjourn it to, any place which he may deem most 
 convenient, and have any inspection or view, either by 
 himself or with his assessors if any, which he may deem 
 expedient for the better disposal of the controversy before 
 him. He shall, unless otherwise directed by the Court or 
 a Judge, proceed with the trial dc die in diem in a similar 
 manner as in actions tried by ajury. J. A. Rule 276. 
 
 Identical with Eng. R. 1875, O. 36, r. 30 (1883, R. 472). 
 
 The |)r()viHic)H as to a reforoe sitting dc die in dinn is directory only I 'ii'' 
 uon-complifuiui" witli it is not a gnnind for setting aside his finding: 7Wi'i»'" 
 V. Robinson, Sft I.. T. N. S. 387 ; 24 W. R. ()7r). 
 
 35. Where n 
 
 referred to the J 
 tice and procedu 
 ance of witnesset 
 as the practice 
 
 This /lule would seei 
 the Act. 
 
 J<6. When mat 
 are referred to a 
 eluding the procu 
 be as nearly as m 
 cedure at a trial, h 
 Referee a public C 
 
 •**ff Kriff. Rule 1875, O 
 
 Thi> Hidr wonhl seem ( 
 R^firit' iiiidcr Mfc. 102 of 
 
 »7. Subject to 1 
 Judge the Keferee 
 conduct of any ref( 
 Court when presidii 
 
 WHiitical with hlu^r. R. 
 Thn Ui'fm',; wliethcr tl 
 ■'■l";«>.'. s,il,,V,.t t.. th.. 
 
 ^f'>l«<-k\.ltinrh,, ('o\ 
 
 *•*• Nothing in \ 
 ^«feree o commit 
 or-Ier by attaohmen 
 
 ''ieiitical witii Kug. H. 
 
 I , »»• The Referee 
 Wore him, or by h 
 P™- submit any qu 
 
 ftl'e Court, or Stat 
 K,»i'''t to draw infer, 
 lfeordertobema.,1. 
 
 ''^entered as the Co 
 
 I «■■ •"■mil, l«r!l, r. r, (188^, 
 
 ,' ^»- The Court si.' 
 JiOQs or reasons fro 
 
REFEREES. 
 
 147 
 
 Authority 
 of Referee. 
 
 39. Where mattera of the nature of those commonly J^" 
 referred to the Master are referred to a Referee, the prac- procedure 
 tice and procedure, including the procuring of the attend- Referee, 
 ance of witnesses, shall be the same as nearly as may be 
 afl the practice and procedure in the Master's office. 
 yeir. 
 
 This Itiilf would Heein to govern tlie practice on niferenceH under seo. 101 of 
 the Act. 
 
 ;{tt. When matters in the nature of the trial of an issue j^°ore^"*'* 
 are referred to a Referee, the practice and procedure, in- Referee, 
 eluding the procuring of the attendance of witnesses, shall 
 be as nearly as may be, the same as the practice and pro- 
 cedure at a trial, but not so as to make the tribunal of the 
 Referee a public Court of Justice. See J. A. Rule 277. 
 
 See Eiiff. Rule lt<7.-), O. 30, r. 31 (1883, R. 473). 
 
 This Rnli' would set-in to apply where the reference is to an official or H))ecia 
 Rpfwr under .sec. 1(»2 of the Act ; see ifo-./ir// v. WhiUlrii, \V. \. 1883, 225. 
 
 H7. S' bject to any order to be made by the Court or 
 Judge the Ueferee shall have the same authority in the 
 I'onduct of any reference or trial as a Judge of the High 
 Cmirt when presiding at any trial. J. A. Rule 278. 
 
 Iil-nticiii witli KuK'. R. 187"), (). 3li, r. ;i2 (IS83, R. 474). 
 
 Till- IMerec. wiietlier tlu- reference is for re|)ort (sec. 101), or trial (sec. 102), 
 ti.i-|»i«vi', sul>je('t to the eiintrol nf tile Court, to ti.\ a ]>ert^mptory anpoint- 
 U'nt f '!■ till' li'\vi'in'/, iind, on fU-fiiult of either party, to priKieed in his ausenct* : 
 lt(,i/<W V. Rit;r It,, C,,., 32 W. R 220, 40 L. T. S'. S. 017. 
 
 8S. Nothing in these Rules contained shall authorii-.^ a 
 Referee o commit any person to prison or to enforce an 
 order by attachment or otherwise. J. A. Rule 279. 
 
 I'lentioal with Kng. K. 187.-), (). 'M\, r. .'liMlSS;*, R. 47."«). 
 
 39- The Referee may, before the concluHion of any trial 
 before him, or by his report under the reference made to 
 liim. submit any question arising therein for the decision 
 of the Court, or state any facts specially with power to the 
 Court to draw inferences therefrom, and in any sucli I'ase 
 tile order to be made on the submission or statement sluill 
 l)e entered as the Court may direct. J. A. Rule 280. 
 
 lliiiticiil with the first jiartof Knj?. R. 187r), (). 3il, r. 34. as .amended by Kng. 
 K., Mw.h, l,S7!i, r. 5 (1883, R. 470). .See R. S. O. 1877, c. 50, h. 211. 
 
 ^0. The Court shall have power to require any explana- <'0"v' '"»y 
 
 It^An™ /• . 1 T. <• 1 7 •■ 11 remit case, 
 
 "oas or reasons from the Referee, and to remit the cause or decide 
 
 Not to com- 
 mit to 
 prison. 
 
 Referee 
 nmy sub- 
 mit (jues- 
 tions to tlie 
 Court. 
 
 j^u4-ii~^-^- 
 
I 
 
 iir 
 
 148 
 
 OFFICERB AND OFFICES. 
 
 Rules 
 41,43. 
 
 on evi- 
 
 deuce 
 
 taken. 
 
 1 1 
 
 or matter, or any part thereof, for re-trial or furtlier con- 
 sideration, to the same or any other Referee ; or the Court 
 may decide the question referred to a Referee on the evi- 
 dence taken before him, either with or without additional 
 evidence, as the Court may direct. J. A. Rule 281. 
 
 CorresjxmdH with the effect of the Kngliuh Rule referred to uikUt Sitlt'ti. 
 
 The powers given by those Rules are more extensive than those conferml iiy 
 the C. L. 1*. Act, sec. 211, which simply enalilixl an arbitrator to Htate \\u 
 awanl as to the whole or any part tiiereof, in the form of a siwciiil ease f(ir the 
 opinion of the Court ; and the Court could only deal with the cast- as stated. 
 Under this Rule the Court may require of the Refertie eAplitnatioiiH or tfmm, 
 or send the matter back for re-trial (»r i-econsideration, and to aiiotlier Rcfuve 
 if it thinks tit ; or may itself decide the question on the same evidence, urwith 
 additional evidence. 
 
 The latter part of this Rule does not seem to Iw quite in kecpinp with the 
 presumable intent of Jiii/fn 848 H Mt(i. tliat the report of the Referfe shall be 
 absolute if not apiiealed against. 
 
 See notes to sees. 101 and 102 of the Act, pp. 04- 
 
 
 <t 
 
 '/A, 
 
 e J' 
 
 '4> 
 
 ..'C/^. 
 
 8. Local Judoks. 
 
 ''yPf 
 
 Juris/ilo- 
 tion iij 
 Chc^mbera 
 of Local 
 .ludtjes. 
 
 
 41. The Judge of every County Court other tlmn^lie 
 County Court of York, shall in all actions brought in their 
 County nave concurrent jurisdiction with aiul the same 
 power and authority as the Master in Chambers in all pro- 
 ceedings now determined in Chambers at Toronto, except 
 that the authority of such Judge shall not extend toj»o- 
 /- eeedings in the nature of a </**<* witrranto under The Mm- 
 Ja/C /j^ - ^ //• ciyal Act, ox to the payment of money out of Court, or 
 dispensing with payment of money into Court, in any 
 action or matter, or to appeals from the Taxing Officers 
 in Toronto pending taxation, or to making an order for the 
 sale of infants' estates. 48 V. c. 13, s. 21. J. A. Eule 
 584. 
 
 Local .Tuderes have also recently had a limited jurisdiction conferml ui»iU 
 them in resi)ect to granting injunctions, as to which see sec. 157 (-) of the Act. 
 
 A County Judge has now under 52 Vict., c. 3(), s. 4(1 (()). original jurisdictwii 
 todetennine tiie right of a nuuiicipality to a reeve, deputy reeve, t'to., urtlif 
 validity of an election. 
 
 POj^erto 42. Evary Local Judge may refer any matter pemling 
 Judge of before him in Chambers to a Judge of the High Court for 
 Highcourt. ^g^jgj^j^^ and the Judge may dispos. of the same in whole 
 
 or in part, or refer back the whole or a part. See J. A. 
 
 Rule 426. 
 
MASTER 8 OFFICE. 
 
 149 
 
 The English Order 35, Rule (S (1875^, makes thin provision with reference to RolefS, 
 luattere wliicli come before '.heDiHtnct KesriHtrar, and Order 54, R. 3 (1875), 
 cuntaiiiD a like provision with reference to the Master. Rule of Hilary Term, 
 1870, contains a like provision with reference to matters before the Clerk of the 
 Crown : aee 29 U. C. Q. B. p. 623. 
 
 A cane may l)e brought lx>fore a Jud((e under this Rule uimn a certificate of 
 the otiicer that in his opinion the case is a pro])er one to be neard by a Judge ; 
 otlierwiue applications within the jurisdiction of any officer must be disiMMed 
 of by him : llm/fivn v. Jieen, » P. R. 80. 
 
 10. Master's Office. 
 
 Masters 
 are olUcorB 
 of Supreme 
 Court. 
 
 Powers of 
 Local Mas- 
 ters in 
 Cliambers. 
 
 As to 
 whether 
 Masters 
 may prac- 
 tise as so- 
 licitors; 
 quoere. 
 
 The Master in Onlinary, and Local Masters, are all officers of the Supreme 
 Court, .1. A. H. 112, ss. 2, and as suoli, actions may l)e referred to them, from 
 liny Divinion of the High Court. Tliey are also by Onler in Ccnmoil of May 
 22iui, 1KH!(, made Masters of the Higli Court and Com-t of ApjKml. 
 
 Tlie L(X!!il Masters wlio do not practise as l)arristers or solicitors, and who 
 have not taken out certificates to |)ractis(>, in mldition to their duties as Masters, 
 have al»o jurisdiction in certain cases in Chaml)er applications, in actions 
 brouglit in the County in which they hold office : Rule 138. 
 
 Fonnerly a Master in Ciiancery w'as dt-barreil fi-om practising as a solicitor 
 in Chanoery, or in partnershiji with any otiier iK'rson privctising as a solicitor 
 in Ciiancery, t'veii tliough lie received \w part of the emoluinents : McLean v. 
 I'rm, 3 Cliy. Cli. 4.32. They might however practise ivs attorneys in tlie other 
 Courts. Now, however, that the Masti^rs have jurisdiction in all the Divisiims 
 iiftheHijfh Court, it senilis doubtful if they can ijractise at all as solicitors. 
 There i» liowever no express jn-ovision either in The Juiliaititre Ad, ov Rules 
 debarring Masters from practising; and see Hnle 138, from which it may be 
 inferred tliat it was not the intention of The Judicature Act to deprive them of 
 tiie riglit of practising : and see J. A. s. 125, (12). 
 
 Under the fonner practice in Chancery the ])laintiiT was jur/»i/t facie entitled Place of 
 t) have a reference, when necessary, directed to the Master at the place wliere reference. 
 iiin bill was filed : Macaca v. duu/uue, 3 (ir. .310; W'al.idn v. l/entlcr.iim, 2 Chy. 
 Ch. .S70 ; and the defendant might for gCMxl cause apply to change the reference : 
 iltXdh V. Metniiin, 4 Ciiy. Cli. 53; but now in lulministratioii actions, it has 
 lieen held that tiie reference should be priuui facie ti> the Master in the County 
 where the deceased resided : Thompson v. Fairbuirn, 10 P. R. 523. 
 
 Subject to this exception the old rule it is presumed will still be followed. Prima 
 and a plaintiff will have tiie right primu facie to have the reference, if any, •f?£'*' 1"**''' 
 directed to the Master in the county where the writ issued. Fonnerly when JJ^gd to 
 it was sought to change the reference on the scorn of expense, the difference of have ref- 
 fxpense must have l)een considerable ; ami if on the ground of convenience, a ence where 
 clearly ureixiiiderating convenience for the proposed change must have bet>ii writ 
 establisliwl ; and the fact tiiat a defendant was a man in extensive business, or issued. 
 II trustee, was not a sufficient ground for changing tiie reference: Mcyah\. 
 Skhnis, mijira; Jackson v. Harriman, fl C. L. J. 29. 
 
 Since The Judicature Act it lias Imh'U held that the policy of that Act is to Reference 
 ilfcentraliso business, and to send local matters to the Local Masters, and the '"^y ^*'. . 
 fact that a partnership business hml t)een carrie<l on in the C(juiity to which it ^n^'j^^t ' 
 wiw pn)p()se(l to change the refen'iice to take the jiartnership accounts, and grounds. 
 tjiat adelay of two montlis would be incurred by retaining the reference at 
 tie place directed by the judgment, was held sufficient ground to warrant the 
 iliauge: Mtkcn v. WilMin, !)P. R. 7.'). 
 
 \\ hen the Master has been professionally concenied for any of the litigants. When Maa- 
 111 reference to the same or any otlier matter, that is a sufficient gniund for ter has 
 fliangmg the reference : Jiinelow v. Jiii/elnw, « P. R. 124 ; ISoud v. Sivi-pawi, been pro- 
 Wore Spragge, C, 19th .Tune, 1878. (See Reg. Lib.) o^noem^. 
 
 >l.w 
 
160 
 
 OFFICERS AND OFFICER. 
 
 iiJ 
 
 , I 
 
 BnlM 
 
 Where iieo- 
 easary to 
 add MaHter 
 as a party. 
 
 Apiilica- 
 tioii to be 
 made on 
 notice- 
 
 luterpreta- 
 tton. 
 
 But when the reference wun directed to a Master, who hod, prior to tho 
 apiH>intnient, bet*n counsel for one of the litigantx, neither party objecting, 
 and the Master certifying that he acted in the reference at the preHniiig request 
 of both parties, the Court held that the party against whom the Maater 
 reiK>rt«d coidd not raise that objection on ap|H>al from the re|)ort, having taken 
 the chance of the Master's finding in his favour : Cotlff v. Cotter, 21 (ir. 169, 
 
 Where in the course of a suit it becomes necessary to add as a party thf 
 Master to whom the cause is referred, the reference will be ohangfd on an tj 
 parte application by the plaintiff : \t'flt{im v. Tt'iiijiMim, 1 Chy. CTi. IKK). 
 
 Usually however the party having the conduct of the reference is entitled t<i 
 notice of any apiiplication to change it, and an order niiule in his ahxence ']» 
 irregular and will be set aside : Mct'iinneU v. McCimndl, 3 Chy. Cii. 122. 
 
 The following Itules 43-137, which regulate the practice in the Master'* 
 offices, apply to actions in all the Divisions, which are referred to a Miwter, or 
 to a Referee. 
 
 (i) General Rules. 
 
 43« In the following rules from 44 to 137 inclusive, the 
 word " Master " shall include Local Master and Official or 
 other Referee, as well as the Master in ordinary of the 
 Supreme Court. 
 
 The iwwers conferred by the Ritlcn on Masters may be also exercised by a 
 Judge sitting in Chambers : Rule 549. 
 
 Conrt may 
 dispose of 
 mn tters 
 witliout 
 reference. 
 
 44* In all cases where a reference might be directed, 
 the Court may dispose of all matters itself without a refer- 
 ence, and may direct the proceedings to b" taken in Court, 
 or in Chambers, as it finds expedient. Chy. 0. 540. 
 
 This Rule is usually acted U|X)n only in sim|>le cases, to save the cxpfnue of 
 a reference to a Master. The nio»it usual instance of its appliciition being, 
 where the account necessary to be taken involves a mere computiition. Insiicli 
 a case the Judge us\udly din-cts the Registrar to ascertain the amount, and it 
 is then inserted in th« judgment, or tmler, as the Knding of the Court. 
 
 Occasionally, however, the accoinits in an administration suit have been 
 taken under this Rule. 
 
 Order to be 
 carried 
 into M. O. 
 within 14 
 days. 
 
 Time for 
 isBuing 
 order of 
 
 45* Every order of reference is to be brought into the 
 proper office for prosecution within 14 days after the order 
 is drawn up, or after the same should have been drawn up, 
 by the party having the carriage of the same ; otherwise 
 any other party to the cause, or any party having an 
 interest in the reference, may assume the carriage of the 
 order. Chy. 0. 211. 
 
 The " proi>eroffice for prosecution" isthat of the Master, or Referee, to whom 
 the r»'f'?rence is directed. I'^sually the original, or a copy, of the judgment or 
 order of reference, is required to be left with the Master. 
 
 Formerly an order, or judgment, directing a reference, was recpiired^to bf 
 l^spoken, and the necessary pa]>ers left for preparing the same witiiinTdaV' 
 after the order, or judgment, was pronounced or finally disixised of by the 
 
MASTER 8 OFFICE. 
 
 151 
 
 Conduct of 
 reference, 
 who en- 
 titled to. 
 
 Duty of 
 Bolicitor 
 having con- 
 duct. 
 
 Court : nee Chy. Ord. 10,— and Chy. ()n\. 7, m to meaning of word " order,"— Role 46. 
 itnd otherwJHti it wan not to \h) drawn uii without leave \ie'mg obtained in reference 
 C'hwnt*'''' : hw Ciiy. Ord. 11 ; .S7»r/)t v. Cayifi/, 1 V\\. Ch. HW. In practice, the and oarry- 
 milicitor havinK tlie carriage of tiie order, or judgment, UHually preparwl tlie lii); into 
 minuU'K ami witliin the time limited by Chy. Ord. 10, procured them to lx< M. O. 
 s<^ttle(l by the KegiHtrar, or obtained an a|>iH>intment from him to Hettle them : 
 KwChv.Ord. .'iiMt. Ifnder these /iiili\i, however, no time ap|M*arH to Ik) pre- 
 KriluHl witliin which an order, or judgment, directing a reference, ih to be drawii 
 U|) and filtered. 
 
 Acccrtliiig to the former practice, it would appear that the party having the 
 conduct of an order, or a juclgment, directing a reference, was entitled to at least 
 21(l»yH from the time the order, or judgment, was pronoiiiice<l, or finally dis- 
 iKWwiOf, bv the Court, within which to issue the onler, or judgment, and carry 
 It into the blaster's office ; but whether he is entitled to the same time, or any 
 lunger, or shorter i>eriud, under the present pnuitice is not clear. 
 
 The nile which r«'gulates the cpiestion, as to who shall have the carriage of 
 an order, or judgment directing a reference to a Mivster, is a technical one, and 
 in the majority of cases, the solicitors alone are interested. The solicitor of 
 the|>arty having the conduct of the judgment is entitled to prosecute all tiiose 
 limceediiitfs which relate to the general inciuiries, and the other |)arties only 
 iiroHW'tite those which relate exclusively to tliemselves, or such as it would bt) 
 inwrtwiHteiit for tlii^ |>arty having the carriage of the order, or judgnient to do. 
 ThuH, if the plaintiff have the conduct, hi'* solicitor In-speaks and procures to 
 \rv iiiHerted all tulvertisements, whether for creditors, or for next of kin, or 
 for the Hiilc of pro|)erty, he prepares the abstnvct, and answers the rt-cpiisi- 
 tioiw; and if the pUTCliaser requires a reference title, he attends u|M)n it. He 
 funiiHJies, where directed, for the |nir]K>se of answering the general iiM|uiries 
 and Uikiiig the general account, copies, abstracts, or extracts of, or from 
 accounts, deeds or other doouineiits, and |K'digrees, etc., relatinif to proceedings 
 of a general character, and not belonging to oarticular parties to prosecute. 
 .Smith's i'r., 7tli ed., 721*. See also not(!s to J{iilf 3U1. 
 
 Where the i)arty having the carriage of a judgment, or order, directing a 
 reference, is guilty of delay in carrying it into the Master's office within the 
 meaning of tliis /{nlf, any other |)arty to the ivction, or any i>arty having an 
 interest in the reftTeiice, may assume the carriage of the judgment, or onler, 
 which, where necessary, would include the right to draw up the minutes and 
 linwure them to 1h^ settled, and to have the order or judgment passed and 
 entered. No order seems necessary to entitle him to do this : liut see lit' Shav\ 14 
 (Jr. 524, when* a si>ecial application was made. Where the judgment, or order, 
 \m lieen drawn uj* and entered, but has not been carried into the Master's 
 office within the prescrilM'd time, an office-copy of the judgment, or onler, may 
 l)e obtained and carried into the Master's office by any other i>arty interested. 
 Persons who are not i)arties to the ivction, but who are interested in tiie refer- 
 ence, c. ,</., creditors, next of kin, heirs, etc., are entitled under this Rtile to 
 assume the carriage of the order, or judgment, where the prescribed time has 
 elaiwed : see Re Show, 14 (ir. .524. 
 
 W!iert> a judgment or order has been carried into the Master's office, in the 
 event uf delay arising on the part of the party liaving the carriage of it, the 
 Master may transfer the conduct of the reference to any other pel-son inter- 
 
 t.ited : see ^xtxt Rule 50. 
 
 46. When in proceedings before the Master, it appears Master 
 
 May be 
 changed 
 for delay. 
 
 Party in- 
 terested 
 may as- 
 sume car- 
 riage, 
 when. 
 
 to him that some persons not already parties ought to be 
 made parties, and ought to attend, or be enabled to attend 
 the proceedings before him, he may direct an olKce-copy of 
 the judgment or order to be served upon such parties ; and 
 upon due service thereof, such parties are to be treated and 
 
 may i 
 
 })ai-ties in 
 lis ofHoo. 
 
 
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l52 
 
 OFFICERS AND OFFICES. 
 
 Rule 46. 
 
 named as parties to the action, and are to be bound by the 
 judgment or order in the same manner as if they had been 
 originally made parties. Ch. 0. 244. 
 
 Master Th» Master has iwwer to dispense with the service of the judgment on ])artie8 
 
 may dis- required to be served therewith imder Mule 322 ; but he would seem to liavo no 
 penae^wUli poWr>; ,o disi)en8e with service on parties who ought to be added as i)artie» 
 UR ^' t. I provisions of this Bulc. 
 
 Persons served with a copy of a judgment under Bttle 322, are not thereby 
 mil le parties to the action : see notes to that /{iile; but persons required to be 
 ser j:l v Vr Rile 40, are made parties to the action. 
 
 V/l,i" '■ r^i^H are required to lie added as parties, the Master usually isKum 
 r.i. orr; ,Mig them parties, and directing them to be served with the judg- 
 
 ment, f!' K,^-('/:v, of reference, indorsed as required by Mule 47. 
 
 Persons who acquire equitable interests in the subject matter of litigation 
 pendente lite need not l)e added as jiarties, but are nevertheless bound, and con- 
 cluded, by the proceedings : thus, a person recovering a judgment, and execu- 
 tion, against a mortgagor : Wit/lhriiljie v. Martin, 2 Chy. Ch. 275 ; or obtaining 
 a mortgage, or other incumbrance from him: Jii>l).inn v. Ar(/ue, 25 (ir. 407; 
 pending an action for foreclosure, or sale, by a prior mortgagee, need not be 
 made a party. But where a person acquires the legal estate ^eHrf<>)i^'/iVp itnifty 
 sometimes be necessary to make him a party for the purpose of obtaining a con- 
 veyance : sed vide 1 Ric. 2 c. ; tliis statute has lieen rejiealed in England 
 but not in Ontario. A purchaser pendente lite may be added as a defendant in 
 the Master's office under this /inle : Lindsay v. /iank of Mitntreal, 13 (ir. f)(5; 
 but see AbeM v. I'arr, !( P. R. 5(i4. But where after registration of a certificate 
 of lis pendens a statement of claim was amended by claiming further and other 
 relief than that originally souglit ; it was held that persons acquiring interests 
 before such amendment, though after the registration of the lis were not bound 
 by notice of sucli further relief ; Price v. I' rice, 35 V\\. D. 2i)7 : but see C. L. T. 
 Sept., 1887, and Bennett on Lis pendens, c. 1. The doctrine of lis jtendms 
 does not affect third jiersons acquiring title pendente ZiVrunder tax sales: ih, c, 5, 
 
 service of 
 judgment 
 
 .■\J ";ng 
 l.artics. 
 
 Persons 
 
 acquiring 
 
 interest 
 
 pendente 
 
 lite need 
 
 not be 
 
 added. 
 
 Except 
 assignee of 
 legal 
 estate. 
 
 s. 80 ; nor bimn title assignees of negotiable )iai)er : Ih. ss. 8((, 87 
 acquiring title luider Acts authorizing expropriation : lb. s. 81). 
 
 Persons 
 with par- 
 amount 
 title not to 
 be added 
 in M. O. 
 Absentee 
 when 
 action 
 com- 
 menced, 
 may be 
 added in 
 M. O. on his 
 return. 
 
 nor i)ersims 
 
 parties in the 
 
 Persons having a paramount title to the plaintiff, cannot be made ps 
 Master's office, if thev object : Muntiiimicru v. Slntrtis, 3 Cliy. Ch. (>!). Thus, 
 in a suit by an execution creditor, to set aside a fraudulent conveyance of the 
 equity of redemption by the execution debtor, an order adding a prior mort- 
 gagee for the purpose of redeeming him, was discharged. When that is 
 required he should be made <an original party to the action : Crawfnn' v. Md- 
 drum, 19 Gr. IfiS. But when a decree had been made *•■ take i)artnership 
 accounts, in the absence of one of the i)artnersall£!ged to be insolvent and out 
 of the jurisdiction, it was held that he was properly made a party in the 
 Master's office on his returning to the jurisdiction jwnding the reference: 
 PdterstiH V. Ifulland, 7 dr. 5(53 ; and as to parties interested in the equity of 
 redemption : see Rule 300. 
 
 Action, The action is only deem 'd to be commenced as against parties added in the 
 
 commence- Master's office from the date of the order adding them: Jnson v. (Inrdinfr, 
 ment of, ns jj q^ 23 ; and see Ihnnlile v. Lurnsh, 27 Cir. 187 ; Sterlim/ v. CinnfMl, 1 Chy. 
 parties ^^' !'*''• Wliere it is nuide to appear to the Master that all liability on the 
 added. P*'"*" "^ "^ I'arty added, is barred by the Statute of Limitations, he may dis- 
 
 charge the order adding him as a party : Kline v. Kline, 3 Cliy. Ch. 101. 
 
 No relief No direct relief can be had against parties added in the Master's office, and 
 
 can be tiad they cannot be required to account: Houperv. Hnrri.wn, 28 Gr. 22; Rulpli v. 
 against rpper Canada Bnildinr/ .Stieieti/, 11 (ir. 275, 278 ; Walker Selii/nutnn, 12 Kq. 152. 
 added '^"^ '* ^""''' seem they cannot themselves get any relief against co-defendant)! 
 
 beyond what is claimed by the jilaintifT : see Whitney v. Smith, 4 Chy. 513; 
 
 they are simply bound by the proceedings. 
 
MASTER 8 OFFICE. 
 
 153 
 
 A iiartv filling two capacities, if made a i)arty to a suit distinctly in one Rules 
 capacity only, may not be bound to his rights in the other capacity ; e. ;/., a 47-49. 
 iM'rson "added as a defendant in his character of a judgment creditor, was held Party flll- 
 tint to be bound in his character as a mortgagee : Cranks v. Watkins, 8 Gr. 340. '"t; two ca- 
 "" pacities, 
 
 liow far 
 
 47. The office-copy of a judgment or order directed to j,"|J",'^^g^j 
 be served under flule 46 is to be indorsed with a notice to how'^servea 
 the effect set fortli in Form No. 33 in the Appendix, with in m. o. 
 such variations as circumstances require. Chy. 0. 245. 
 
 4S. A party served with an office-copy of a judgment rnrties 
 or order under Eule 46, may apply to the Court, at any m.'o! may 
 time within 14 days from the date of such service, to a^alJlst 
 discharge the judgment or order, or to add to, vary, or J"'^R'"ent. 
 set aside the same. Chy. 0. 245. 
 
 Formerly the ap))lieation was required to be brought on to be heanl within A])plica- 
 tlip fourteen days : see Holmested's Rules and Orders, 245. But the appli- tiou wlien 
 cation might, in the discretion of the Court, be entertained after that to be heard, 
 time ; Slemni v. lIuHter, 2 Chy. Ch. 2()5. 
 
 The long vacation is excluded from the fourteen days : Ride 484 a. 4 ; but it ' 
 
 would seem that the Christmas vacation is not excluaed. 
 
 Where a jjarty is added who claims by title paramount to the plaintiff, he 
 should move to discharge the order : Montqnmcry v. Shortis, 3 Chy. Ch. (!!) ; 
 Cmu'fiml V. Melilntm, 1!) Gr. 1()5 ; ^fc Veaii v. T(-ffxn, 13 Ont. Apii. 'l. But an 
 incumbrancer claiming jiriority to the plaintiff, but whom the Master finds to 
 be subsequent, may also appeal from the report on the question of priority : 
 McDonald v. lindijer. i) Gr. 75. 
 
 The Master may iiimself discharge tiie order adding a i>artv who subse- 
 quently api)ears to be an unnecessary party : Kline v. Kline, 3 Chy. Ch. IGl. 
 
 49. Where, at any time during the prosecution of a 
 reference, it appears to the Master, with respect to the 
 whole or any portion of the proceedings, that the interests 
 of the parties can be classified, he may require the parties 
 constituting each or any class, to be represented by the 
 same solicitor ; and where the parties, constituting such 
 class, cannot agree upon the solicitor to represent them, 
 the Master may nominate such solicitor for the purpose of 
 the proceedings before him. Chy. 0. 2,18, first part. 
 
 When the Master ap))oints a solicitor to act for a class, all the individuals 
 cuniposing that class are boinid by the acts of the solicitor so apix)inted, and 
 cannot repudiate them, unless they appoint a separate solicitor : lie MeCaiuiel/, 
 3 Chy. Ch. 423. ' ■'' i i i 
 
 A solicitor so ai)iiointed is entitled to iict for the class, not only in the 
 Master's office, but also in proceedings arising out of, or connected with, the 
 proceedings in the Master's office: 1//. But where a solicitor v,'a» e.v jmHe 
 ai'Iiomted to represent creditors it was held that he could nt)t recover his ct)sts 
 aganist creditors who had not proved their claims and who had had no notice 
 of hi8 appohitment : Munteith v. Merchants Jiank, 12 P. K. 288 ; 23 C. L. J. 415. 
 
 Party 
 added 
 clainung 
 priority to 
 plaintitf. 
 
 Master 
 may dis- 
 cliarge 
 order 
 when. 
 Master 
 may clas- 
 sify, and 
 appoint »o- 
 lioitors to 
 represent 
 different 
 classes. 
 
 Solicitor 
 appointed 
 by JlBBter 
 to repre- 
 senta class,, 
 binds all of 
 the class. 
 
•'j 
 
 154 OFFICEUS AND OFFICES. 
 
 Bule 60. After the ai)|)ointinent of a solicitor to act for a class, the separate costs oi' 
 
 any member of that class subsequently incurred will not ordinarily be allowed 
 against the estate imder admniistration : Rt ^Etua Insurance CnmimnuA' 
 Gr, 160. 
 
 Solicitor The Master should not apiwint a separate solicitor for parties who are 
 
 not to be sufficiently represented by the plaintiff ; and where jirima facie thu plaintiff 
 appointed represents the class (see Jink 320 post), if the \ .a*, jr appoint a separate 
 sent'a dass solicitor, he should state the reason for so doing . 'i his report ; (•(irliam v, 
 already Vdrham, 17 Gr. 38G. 
 
 repiesen - ^^ ^^ ^j^^ liability for costs of any member of a class refusing to be repre- 
 sented by the solicitor nominated by the Master, and insisting on being repre- 
 sented bj' a different solicitor : nee post Hide 1188. 
 
 Master 
 may 
 change 
 conduct of 
 referencx;. 
 
 Mastei*'s 
 order sub- 
 ject to 
 appeal. 
 
 Creditor 
 may apply 
 
 Party 
 ■conducting 
 reference 
 ■entitled to 
 inspect 
 papers. 
 
 Plaintiff 
 may apj v 
 to amend 
 order of 
 reference, 
 though 
 conduct 
 taken him. 
 
 Where 
 there is un- 
 due delay 
 in prose- 
 cuting a 
 reference, 
 Master 
 may close 
 it. 
 
 50. Where a party prosecuting a reference, does not 
 proceed with due diligence, the Master is to be at liberty, 
 upon the application of any other party interested, either 
 as a party to the suit, or as one who has come in and 
 established his claim under the judgment or order, to 
 commit to him the prosecution of the reference ; and from 
 thenceforth neither the party making default nor his 
 solicitor is to be at liberty to attend the Master as the 
 prosecutor of the judgment or order. Chy. 0. 212. 
 
 The Master in his discretion may entertain an application to change the 
 conduct of the reference ex parte: .Stephensnu v. Aiodls, 14 (ir. 1-J4; but 
 ordinarily the a])plication should be made on notice : 1 Sm. Pr. 2nd ed., 312, 
 and see '^ims v. Rid'je, 3 Mer. 458 ; Edwards v. Acland, b Mad. 31. 
 
 An appeal lies from the order of the Master changing the reference : 
 Ste/)hens'))i v. yiclialls, 14 (ir. at pp. 147, 14!), and in W;/att v. >Si(ller,5&m. 
 ■ii)i); the Court on a substantive motion changed tlie reference, after the 
 Master had refused an apjjlication for that puriwse. But the application must 
 in the first instance be made to the Master : Miller v. Mc2\aii<jldeii, IChy. Ch. 
 
 •2m. 
 
 Where there has been great delay in prosecuting a judgment in a creditor's 
 suit, a creditor may api)ly to have the conduct of the cause, tiiough it hat 
 become defective by the death of a defendant : Cnnk v. liullon, 5 Russ. 282 ; and 
 see lie Shaw, 14 (ir. 524 ; Patterson v. Scutt, 4 Gr. 14.5. 
 
 A party to whom the conduct of the reference is committed is entitled to 
 inspect and take copies of briefs and d(K!uments in the jHJssession of the party, 
 or nis solicitor, from whom the carriage of the reference has been taken : 
 Jiennett v. Ila.der, 10 Sim. 417 ; end see Ileslop v. Metcalf, 8 Sim. (i22, 
 
 An order taking the conduct of tlie reference from the jdaintiff, does not 
 preclude liim from ajjplying to amend a clerical orrorin the judgment, ororder, 
 under Ride 780 : Whiteliead v. Xorf/i, Cr. & Ph. 78. Ride 50 only enables the 
 Master to transfer the conduct of pnxjeedings in his office. 
 
 Where there is undue delay in i)rosecuting a reference the Master may close 
 the reference as provided by Rule 51. 
 
 51. Where there is undue delay in prosecuting a refer- 
 ence in the office of a Master, he may issue his warrant to 
 the solicitors or parties interested, which may be transmit- 
 ted by post, calling upon them to show cause why tbe 
 reference should not be duly proceeded with. In default 
 
MASTER S OFFICE. 
 
 155 
 
 of sufficient cause being shewn to excuse the delay, or upon R«Jm 
 default being made in attending upon the return of the " ' 
 warrant, the Master is to certify to the Court the circum- 
 stances of the case ; and thereupon the reference in his 
 office is to be deemed closed, and is not to be resumed 
 until further order. Ch. 0. 584. 
 
 In England a somewhat similar jjractice prevails ; there the Chief Clerks English 
 from time to time go through all matters i)ending before them, and in those I'ractice 
 cases which have been left unattended to by the solicitors having the conduct where de- 
 of the cause or matter, they address a formal notification to such solicitors, Jn^'jJJ.ogecu. 
 iKiinting out the excessive delay, the prosent position of the matter, and inform- jion of 
 ing them unless the matter is attended to, it will be handed over to the official suits, 
 solicitor of the Chancery Division ; see 60 L. T. Jour. 133. 
 
 This Ride, however, only provides for closing the reference. After it has 
 been closed under this Mule, an ai)plicatit)n must be made to the Court before 
 it can be resumed. The object or the J{iile is to jiroteet the Court and its offi- 
 cers from any responsibility for undue delays in the prosecution of references, 
 and its provisions should, therefore, be strictly observed by the Masters. 
 
 Wiien a reference is closed in pursuance of this liiilf, it provides that the 
 Master is to certify to the C<iurt the circumstances of the case ; under the 
 former Cliy. Ord. 584, from which this /{ii/e is taken, it was the practice for the 
 Master to forward to the Registrar the certificate of the circumstances of the 
 case,— such certificates should now be forwarded to the Registrar oi the Divi- 
 sion in which t' e action is pending. 
 
 *i2. Unless the Master in his discretion thinks fit toReforcncs 
 postpone the same, every reference is to be called on and pVceeded 
 proceeded with at the day and time fixed ; and so de die in flxei^aiid^*^ 
 (If'em, without interruption, and without a fresh warrant, 'j^: <*""■« 
 unless he is of opinion that an adjournment other than de 
 die in diem would be proper, and conducive to the ends of 
 justice; and when an adjournment is ordered, the Master 
 is to note in his book the time and reason thereof. Chy. 
 0. 213, 214. 
 
 The Master cannot proceed with a reference in vacation, excejjt by consent Master 
 of all parties : Aiidertinn v. Thorpe, 12 Ur. 542. A report made in vacation, cannot pro- 
 witliout tile consent of all i)arties, is null and void, as against a party having no ceed in 
 notice of the proceedings on which it is founded, and it is not necessary to vacation. 
 appeal from it : Fuller v. McLean, 8. P. R. 549. 
 
 " It is the bounden duty of the Masters to observe these Orders to the letter, 
 wherever it is not absolutely impracticable to follow them literally," per 
 Spragge, C. ; Fulls v. Powell, 20 Gr., at p. 468. 
 
 53. In no case is any matter to be discontinued or References 
 adjourned for the mere purpose of proceeding with any adjourned 
 other matter, unless that course becomes necessary. Chy. other ^ "'' 
 
 0. 215. cases. 
 
 54. Upon the bringing in of a judgment or order, the warrant 
 solicitor bringing in the same is to take out a warrant to be Sn 
 
f • 
 
 15G 
 
 OFFICBRS AND OFFICES. 
 
 Rule S4. (unless the Master dispenses therewith) appointing a time, 
 msreuHed which is to be settled by the Master, for the purpose of 
 with by taking into consideration the matters referred by the judg- 
 ment or order, and is to serve the same upon the parties, 
 or their solicitors, unless the Master dispenses therewith. 
 Chy. 0. 216. 
 
 This Ki(h w adiqited from the English Chy. Ord. 51, of 3rd April, 1828. See 
 Kennedy's Ord., p. 17. 
 
 Where Whei'e a judgment is manifestly erroneous, the Master may pr()])erly refuse 
 
 .lui»«iiiont j,|j proceed upon it until it has been corrected : Swahindii v. Bnrtn'i/, 18C. L J. 
 Mastm""*' 15; und ave Conimeirud Jiaiikv. (ii-aJiaiii, 4 Gr. 41!t ; Mitchell v. Stmtlu/, & 
 niayro- ('T. 80; .{(/(Uiiiidti v. Adamndn, lb., at p. 224 ; but tlie mistake must be verj' 
 i'use to pro- obvious to warrant the Master in refusing to i)roceed. 
 ceeil on it. 
 
 Warrant to ^ warrant to consider a judgment, or order, only requires one day's service ; 
 consider. ^^'^ SnJierlinxl v. Raifcrn. 2 Chy. Ch. ati). 1!)2 ; other warrants re(iuire two clear 
 
 days' service ; lit. ; excei)t warrants to settle rejwrt ;hich require fo\ir days' 
 
 service : see pust Rule 77 note. 
 
 The warrant must be underwritten so as to exjjlain clearly what jiroceedings 
 are to be taken under it : Di'iiinon v. Dciii.snn, 3 Chy. Ch. M9. 
 
 Defendant The fact that a decree under the former Chancery practice had been pro- 
 entitled to noimeed pro cmi/i'sxii against a defendant, did not ipno fndo disentitle the 
 defendant to notice of proceedings in the Master's office : see Rnhiihinn v. IIViiV- 
 riiinli, 20 dr. 41.5. In mortgage suits, incumbrancers made ])arties before tlie 
 hearing werg expressly required to lie served with notice, notwithstanding the 
 bill may have lieen taken pro coiifessn against them : see Rule 128. 
 
 Chy, Ord. Ill now obsolete, dispensed with service of an order to take a bill 
 pro ainfessi), and i)rovided that "all further proceedings in the case maybe » 
 parte iis to such defendant, unless the Court orders otherwise." Notwitlistand- 
 ■ ing that Order, it was held impr()])er, as a general nde, for a Master to proceed 
 ex parte with a reference, against a defendant as to whom tiie bill was taken 
 pro cimfesso, and t)\at the Master was bound to exercis«^ his discretion as to 
 requiring, or disi)ensing with, service on such defendants : Roliiasim v. ir/ii/- 
 cnmb, 20 (Jr. 41.5 ; and see liuchanaii v. Tiffrniy, 1 Gr. 08 ; Walsh v. limirke, Ik 
 105; Hawkins v. Jnrvis, Ih. 2.57; 1 E. & A. 240; McVurmick \.Mc Cmiid; 
 (> P. R. 208 ; but see I'errin v. ha vis, 3 ftr. KJl. And where the reference was 
 directed by an administration order obtained witlunit a bill being filed, it was 
 held that notice t)f the jinxjeedings (m the reference must be given to the 
 defendant, and that the proceedings taken ex jiarte under such circtimstances 
 were irregular, and the Court refused to act on a rejHjrt so made ; Jacksm v, 
 Matthews, 12 Gr. 47. 
 
 Under the jiresent practice there is no jirftvisicm for taking the action ;)'" 
 eonfessii as under the former Chancery practice ; and although judgments mav 
 be awarded against a defendant for defaidt of ai)i)earance, or for default of 
 defence, there is no provision enabling the future proceedings to l)e carried on 
 against him, e.c parte. In such cases, therefore, it would seem that the defendant 
 is entitled to notice of proceedings upon a reference. 
 
 In order to get over the difficulty which aro.se under the Rules of 1881 which 
 allowetl a defendant to file his defence at any time before judgment, RukM 
 enables a plaintiff to file a note closing the pleadings as soon as the ordinary 
 time for pleading has expired. 
 
 The Rules make no provision forserviceonadefendant who hasnotappestw. 
 It would seem, therefore, that personal service is necessary, unless expressly 
 di8i)ensed with, or some other mode of service be authorized by order to dp 
 obtained for that puqxjse. 
 
 notice. 
 
 How far 
 defendant 
 who has 
 not appear 
 cd is enti- 
 tled to 
 notice in 
 M.O. 
 

 MASTER S OFFICE. 
 
 157 
 
 55. Upon the return of the warrant to consider, or upon Rui" 
 the bringing in of the reference where the warrant is dis- f'' **' . . 
 
 ijio lii^-'f, e> ■«», •, /. ,. 1-11 Warrant to 
 
 peiised with, the Master is to fix a time at which to pro- consider 
 ceed tt the hearing and determining of the reference, and IU^h on ' 
 is to regulate in all other respects the manner of proceeding"^'"*"- 
 with the reference, and is to give any special directions, he 
 thinks fit as to : — 
 
 (1) The parties who are to attend on the several accounts 
 
 and inquiries ; 
 
 (2) The time at which, or within which, each proceeding 
 is to be taken ; 
 
 (3) The raode in which any accounts referred to him are 
 to be taken or vouched ; 
 
 (4) The evidence to be adduced in support thereof; 
 
 (5) The manner in which each of the accounts and 
 inquiries is to be prosecuted ; 
 
 And such directions as may be afterwards varied or 
 added to, as may be found necessary. Chy. 0. 217. 
 
 In any caiwe, or matter, for the administration of the estate of a deceased per- Master 
 son, no party, other than the personal representative, shall, unless by the leave i"iy regn- 
 of the Master, be entitled to apjjear on the claim of any person not a party to '"''^ ^^.'° *° 
 the cause, against the estate of tlie deceased, in respect of any debt or liability. Rviljfjto,"" 
 The Master may direct any other p irty tt) the cause to apjMiar, either in adcli- claims 
 tion t(), or ill the place of, the per.onal representative, upon such terms as to agauist 
 ousts and otherwise as he shall se': fit : see Jtulc 334. estate. 
 
 As to mode of taking and verifying accounts generally : see Riilfs 04-69, 73 5 
 and as to taking accounts of creditors' claims against the estate of a deceased 
 iwrson : see Rules !»7.5-lt8G. 
 
 The niling of the Master is not conclusive, and the Court may ^ive a party Subj 
 leave to attend proceedings whom the Master has excluded : Davis v. Vinnber- appe 
 inm, 9 Jur, 70. But it would seem that any objection to the Master's ruling 
 should be brought up by way of appeal, and not as a substantive motion. 
 
 ect to 
 
 ppeal. 
 
 56. To enable the Master to exercise all or any of the nq strte- 
 
 powers conferred upon him by, or to take the accounts pleading or 
 
 and make the inquiries referred to in, the following ^^^j^^^^^** 
 
 shall not be necessary that any of the matters sary to en- 
 
 Rules, it 
 
 therein mentioned, shall have been stated in the pleadings, Master to 
 
 or that evidence thereof shall have been given before the hu p*'owers. 
 
 judgment or order of reference, or that the judgment or 
 
 order shall contain any specific direction in respect thereof. 
 
 Chy. 0. 219. 
 
 
 >' ^'T■^^^'-'"^^?.•!i>t'-.'yi'^■ ' 
 
if !'f# 
 
 •■A 
 
 158 
 
 OFFICERS AND OFFICES. 
 
 Rule 67. 
 
 Jurisdic- 
 tion of 
 Master en- 
 larged by 
 Rules 56,57. 
 
 Former 
 rule re- 
 quired case 
 te be made 
 in plead- 
 iugs, etc. 
 
 Chy. Orel. 219, 220, from which this and the following Rule are taken, verj' 
 materially altered the practice ^)^eviou8ly in force, and extend the jurisdiction, 
 and discretion, of the Masters m taking accounts, very far beyond that exer- 
 cised by the Chief Clerks, or even by a Judge in Chambers, under the English 
 practice : SciUthorjae v. Jiiirn, 12 Gr. 427. 
 
 The former rule, as laid down by Lord Eldon, was that the plaintiff must 
 aver in his bill, and prove, at least erne act of wilful neglect, or default, in 
 order to obtain a decree directing an inquiry as to wilful neglect, or default : 
 Seton 477 ; Sleir/ht v. Lawsim, 3 K. & J. 2!)2. In the same way, according to 
 the English jffactice, a foundation is required to be laid in the pleadings for, 
 and the judgment must siwclally direct, the taking of an account witli rests : 
 Seton 474 ; or the setting of an occupation rent : Truluck v. Rithey, 15 Sim. 
 265. 
 
 This Rule distinctly abrogates those lules of practice, and enables the Master 
 to take an account \yith rests, and to chnrge the accounting party for rents, 
 and profits, which might have been received, but for wilful neglect and default, 
 and to set an occupation rent, in any case referred to him ; although there be 
 nothing in the pleadings : McLennan v. lleward, 9 Gr. at pp. 178 and 187 ; 
 and though no evidence may have been given as to any such matters at the 
 trial. 
 
 It was formerly held that under a common administration order obtained on 
 motion without bill, by any ixirson but the personal representative himself, 
 there could be no inquiry as to wilful neglect, or default: J/an-isaii v. Mi- 
 Olaxhan, 7 Gr. 532. But where the order was obtained by the ixirsonal repre- 
 sentative himself, such an inquiry might be .nade : Lcdgerwood v. Ledyenoml, 
 7 Gr. 584. 
 
 The case of Carpenter v. Wood, 10 Gr. 354, though not referring to llarrmn 
 V. McUlaxhan, is said in eflfect to have over-ruled it ; and the practice was 
 stated by Boyd, C, to be now settled that under Chy. Ord. 219, 220, (Ridem, 
 57) the inquiry as to wilful neglect and default, may be mside in all cases 
 under the common administration order : Me Allan, I'ucuck v. Allan, 9 
 P. R. 277. 
 
 If the Master refuse to exercise the power to take the accounts in the man- 
 ner mentioned in Rule 57, his ruling would be apiwalable ; but it would seem 
 to be more profMjr to bring the question up on further directions : see Sieve- 
 loright v. Leys, 1 Ont. 375. 
 
 Where the judgment gives further relief than claimed by the i)leading8, it 
 has been held that the judgment is not to be construed by reference to the 
 pleadings if it is unambigiious : Smith v. Gvldie, 11 P. R. 24. 
 
 Malfer t°o' ^^' Under a judgment or order of reference, the Master 
 take ac- shall have power : 
 
 counts. 
 
 With rests. (1) To take the accounts with rests or otherwise ; 
 
 Toinqiiire (2) To take accouut of rents and profits received or 
 Slgiert'Eud which, but for wilful neglect or default, might have been 
 default, received ; 
 
 Inquiry as 
 to nefilect 
 and de- 
 fault, etc., 
 can now he 
 made with 
 out special 
 direction 
 
 To set oc- 
 cupation 
 rent. 
 
 To allow 
 for im- 
 prove- 
 ments. 
 
 (3) To set occupation rent ; 
 
 (4) To take into account necessary repairs, and lasting 
 improvements, and costs and other expenses properly 
 incurred otherwise, or claimed to be so ; 
 
 (6) To mi 
 
 (6) To rei 
 
 (7) And f 
 adjudge, anc 
 as fully as 
 Chy. 0. 220. 
 
 Taking the ace 
 
 Taking an accc 
 charged with com 
 the surphis incom 
 at certain jieriotls 
 and intere.st, or tl 
 place yen ,-]y, half- 
 I)eriods ..-e temiec 
 wicke said rests wi 
 but this is no lonj 
 with rests, if it is i 
 report the facts, s 
 decision : l^ievewrii 
 method is to bring 
 
 RkSTS, as A(iAIN 
 
 an executor, or trui 
 with what lie actm 
 made " : per Esten, 
 the Court proceeds 
 of restoring to the . 
 loss directly attribi; 
 on the other hand, 
 has ai)propriated b' 
 Ont. Apij,, at p. 49 
 Morney-Oeneral v. 
 • yxc V. Foster, 8 CI 
 be a convenient mot 
 be oppressive, and s 
 in such cases it ougl 
 
 In England the a 
 charged, deiwnds on 
 and gets no i)ersona 
 
 ID. M. & G. 247 ; 
 
 Y' ^[^('"'ney-O'encrc 
 Should have receivei 
 'W. (2) Where he i 
 money for his own I 
 the beneficiary, wit! 
 if^ neglect to comp 
 
 to be such a positive 
 m4-v. j/„^„ -J) 
 
 the trust directed " 
 
 fr!''/;388;andwhei 
 
 J^tionforaccumi 
 S^f.**"'-' sometimes 
 without rests, or, in 
 
-WW^ 
 
 MASTERS OFFICE. 
 
 159 
 
 Rule 87. 
 
 To make 
 juBt allow- 
 anceB. 
 
 To report 
 
 inquire, 1^,%'^fl 
 
 thereto, •'tances. 
 
 i tJici 1 eu . qinre as to 
 all matters 
 relating to 
 accounts. 
 
 (5) To make all just allowances. 
 
 (6) To report special circumstances ; 
 
 (7) And generally, in taking the accounts, to 
 adjudge, and report as to all matters relating 
 as fully tis if the same had been specially 
 Chy. 0. 220. 
 
 Taking tbe account with rests :~ 
 
 Takinf? an account with "rests " means, either that the accounting party ia Taking ac- 
 chargetl with coinixjund interest on the amount found due from him ; or that coiuit with 
 the surphis income remaining after satisfying the interest duett) him, is apjjlied rests, what 
 at certain jwrioils in reduction of the principal. The amalgamation of princijjal '* *^' 
 and interest, or the amplication of income to pay oflF the principal, may take 
 place yea rly, half-yearly ; or at other times more or less frequently, and these 
 l)erioas .."e' termed " rests." In /i<ibin.i(m v. LUimmiiuj, 2 Atk. 410, Lord Hard- 
 wicke said rests were only ordered in accoimts of realty, and not of i)ersonalty, 
 but this is no longer the rule. When the Master declines to take an account 
 with rests, if it is intended to api>eal from his decision, he should be required to 
 report the facts, so as to enable the Court to judge of the propriety of his 
 decision ; Sievcwrii/lit v. Leys, 1 Ont. 375 ; but it has been said the preferable 
 metlio(l is to bring the question up on further directions : Ih. 
 
 RE.STS, AS A(iATXST EXECUTORS, AND Trustkeh.— In taking accounts against Rests— 
 an executor, or trustee, he is to he charged " with what he ought to have made, ioJL*g'\^g 
 with what he actually did make, or with what he must be presumed to have against 
 made": /)(■;• Esten, V.C., .SwuV/i v. Jinc, II Gr. 312. The jjrinciple on which execntovB, 
 the Court proceeds in charging an executor, or trustee, with interest, is that and trus- 
 of restoring to the cestui que trust his own, and of fairly comj^nsating him for tees, 
 loss directly attributable to the neglect, or breach of duty, by the trustee ; and 
 on the other hand, that of withdrawing from the trustee any advantage he 
 has appropriated by abusing his jX)sition : f)cr Moss, C.J. ; InijUs v. Beutly, 2 
 Ont. App., at p. 400. It is not that of punishment to the executor, or trustee : 
 Atiormy-Oeneral v. Alfiml, 4 D. M. &G. 843 ; Burriiek v. Oarrick, 5 Chy. 233 ; 
 Vyse V. Fihiter, 8 Chy. 309 ; 7 H. L. 318. Compound interest may in some cases 
 be a convenient mode of making this comi)ensation, but in other cases it may 
 be oppressive, and sound more as punishment than comjiensation, and therefore 
 in euch cases it ought not to charged : see Fielder v. O'Hara, 14 Gr. 223. 
 
 In England the amount of interest with which an executor, or trustee is 
 charged, dejiends on the circumstances : (1) When he is guilty of mere neglect, 
 and gets no |)ersonal benefit, he is charged with simple interest at 4 per cent. : 
 Forbes v. Russ, 2 Cox 116 ; Rncke v. Harte, 11 Ves. 58 ; Rabinsmi v. Robinson, 
 1 D. M. & G. 247 ; Tehhs v. Carpenter, 1 Mad. 290 ; Moushy v. Carr, 4 Beav. 
 46 ; Attorney-General v. A {ford, 4 D. M. & G. 843 ; or with the interest he 
 should have received with half-yearly rests : Oilroy v. Stephen, 46 L. T. N. S. 
 761. (2) Where he is guilty of a positive breach of trust, or has employed trust 
 money for his own benefit, he is charged with 5 per cent. ; or, at the option of 
 the beneficiary, with the profit actually made : Jones v. Foxall, 15 Beav. 388. 
 The neglect to comply with a sijecific Direction for investment, has been held 
 to be such a positive breach of trust ; Crackelt v. Bethune, 1 J. & W. 686 ; Ber- 
 mk v. Afurray, 7 D. M. & G. 519 ; Mosley v. Ward, 11 Ves. 581 ; and when 
 the trust directed accumulation, the accounts have been taken with rests : 
 Raphael v. Boehm, 11 Ves. 92 ; Knott v. Cottee, 16 Beav. 77 ; Jones v. Fomll, 15 
 Beav. 388 ; and where a breach of trust, and the employment of the trust fund 
 for his own benefit, in trade, or 8i)ecuiation, concur, whether there be any 
 direction for accumulation or investment or not, the trustee is charged with 5 
 per cent., sometimes with : Burdick v. Oarrick, L. R. 5 Chy. 233 ; and sometimes 
 without rests, or, in the option of the beneficiary, with the profits actually 
 
 English 
 rule when 
 executor, 
 or trustee, 
 guilty of 
 mere ne- 
 glect- 
 When 
 guilty of 
 positive 
 breach of 
 trust — or 
 has em- 
 ployed 
 trust funds 
 in his own 
 business. 
 
w, 
 
 |t;r 
 •'I 
 
 160 
 
 OFFICERS AND OFFICES. 
 
 Rule 67. 
 
 Rule ill 
 Ontario as 
 to rati) of 
 interest. 
 
 Interest on 
 sums ne- 
 Rlected to 
 be paid 
 •over. 
 
 Where re- 
 tained un- 
 der bona 
 ,Hde belief 
 ot owner- 
 ship. 
 
 Neglect of 
 C II. t. to 
 demand 
 payment. 
 Nefilect of 
 trustee to 
 hivest. 
 
 rfalised from the fund : Ffadon v Jiunnint/.SL. R. Chy. 323 ; SiiKtiidrith v. finrrelt 
 31 Bnav. 349 ; J}ocker v. Smnes, 2 My. & K. (;5.5 ; Ui-atltn,!,- v. llidme, \ .r. & W. 
 122: Siittdu V. Shitqw, 1 Rush. 140; J{i)hiii.ii)ii \. JinhiiisnH,! 1). M. & H.^^', 
 In Wiilh'r \. Wiiiiilirdiil, 1 Kuhh. 1(»7, annual rents were ordered, tint this wan 
 Hiiid ti) have l)een ()l)tained by surprise : see Attiinifi/-<>riirr<il v. >'"//,'/, 2 Sim. 
 518. In ./"/c'.v V. FiiMilf, 15 "Heav. 38K ; W'iUiams v. I'mri'tl, 15 JJcav. 461; 
 J/rii/liiiuifiiii V. (iiiiiit, 1 Ph. ()()()■ rests were ordered. In Itocker v. Si,mi-H,i 
 My". & k. 055; Pdhner v. Mitrhe i, 2 My. & K. (i72 ; MaaUmahl\. Rirlmnhmi, 
 1 (riff. 81 ; accounts of i)rofits arisiiij,' from employment of trust fuiifis in trade 
 were ordered ; and see ('/■iiwuhiti/ v. Cu/h'ii.s, 15Ves. 218 ; 1 J & W. 207 ; 2 Ru»8. 
 325; W'itlrtl V. /llaii/iml, I Ihx. 2r>'i; Wnhli'i-hitni \. Wiuldnlntrn, 22 KvawU. 
 The ])ayiiig'iii money to the General account of a firm of solicitors, of wliieli the 
 trustee was a partner, was held not to l>e a using of tiie money in iiis own 
 business, so as to render him liable for compound interest : liunliiL v. <tnn-kk, 
 5 L. K. Chy. 233. When an infant is interested, an inquiry will Ite directed 
 whether it is for his advantage to take interest, or profits : Biirdru v Jlurilni, 
 cited in Ihathaite v. Ilulme, I J. & W. 134-5. No special direction seenw 
 necessary to authorize the Master making that enquiry in Ontario. 
 
 In this Province prior to the repeal of the usury laws, the rule was to charge 
 interest at the ratt? of jwr cent., and where accordjng to the Eiiglisii cases a 
 liigher rate of interest than 4 per cent, would be chargetl, to take the account 
 with lialf-yearly rests : see Ldiulinun v. Vnxiks, 4 (ir. 353 ; SukiII Kcckn, 12 
 (ir. at p. 40. Since the abolition of the usury laws, an accounting jiarty 
 chargeable according to tiie English cases with more than 4 per cent., may 
 now be charged, either with a higiier rate of interest than i)erc(,'nt., according 
 to the value of money, as was done in Wiiihtman v. HvUiwvll, 13(ir. 3H1) (wliere 
 an executor was charged with 8 jjer cent, simple interest) ; or it wnuld neem 
 he may be charged with compound intt'rest at i)er cent. : Wianl v. Halik, 8 
 <4r. 458 ; Ernkinv v. Camphdl, 1 (ir. 570 ; or even at a higher rate if the money 
 have been used in trade : yVii/htman v. HcUiinU, 13 Gr. at i). 343 ; Smull v. 
 Ecclen, 12 Gr. 40, or, at the oi)tiou of the ccitui que truat, with the actual profits 
 realised. 
 
 But where the trustee, or executor, has neglected to pay over sums in his 
 hands to the parties entitled, he is chargeable with interest on such sums, no 
 matter what thecamount, from the time tlie payment ought to have been made: 
 McLennan v. Heward, i) Gr. at p. 190. 
 
 In re HouKhenjer v. Kratz, 10 Out. .521; 21 C. L. J. 400, Boyd, C, laid down 
 tlie rule on which executors and trustees should be charged with interest as 
 follows : — (1) An executor or trustee who negligently retains funds in liis hands 
 which he should have paid over, or made productive for the estate, is to be 
 charfjed with simple interest thereon at (5 per cent. (2) An executor or tnistee 
 who 111 violation of his trust has used the money for his own ])urposes (though 
 not in trade or speculation), is to be charged at such rate as is the tiien current 
 value of money. (3) An executor or trustee who makes a gain out of the trust 
 by embarking the money in speculation or trading adventures, is to be charged 
 either with the j)rofits or compound interest. 
 
 Where the executor, or trustee, retains trust money in his hands, under a 
 bond fide, though mistaken, belief that it is his own, he may be exonerated 
 altogether from i>ayment of interest : Jiruere v. I'emberton, 12 Ves. 380; Dawi- 
 port V. Stafford, 14 Beav. 319 ; or he may be ordered to pay simple interest : 
 /n.'/Zi* v. iieatty, 2 Ont. App. 453 ; and where there has been great delay on the 
 part of the cestui que trust in making claim to the trust fund : Browne v. Crm, 
 14 Beav. 105, provided such delay can be said to amount to acquiescence : Tk 
 Life Assurance Co. v. Siddal, 3 D. G. V. & J. 72 ; lilaiu v. Terrnberry. 12 
 Gr. 221 ; the trustee or executor may be relieved from paying interest thereon : 
 but see Boys' Home v. Lewis, 4 Ont. 18. 
 
 An executor who paid over money under what proved to be a mistaken con- 
 struction of his testator's will, was held nevertheless bound to pay interest 
 thereon to the parties projjerly entitled ; but not to a jierson who had acqui- 
 esced in the misapplication of the fund : In re Hulkes, Powell v. Uidka, 33 
 Ch. D. 562 ; 55 L. T. N. S. 209 ; and see In Re Deane, BrHger v. Dcam, 42 
 CIj. D. 9. 
 
MASTER H OFFICE. 
 
 161 
 
 Atriistt" iiivt'st in "imblio st'curitics," in violated by inventing: in nitinicipal Rule 67. 
 debentures: Kn'm-t v <liirdiiii, 13 (ir. 40; Hee, iiowi-ver H. S. (). u. 110, 
 ss. 2!l, 30 ; i")- V. c. 18 (t)) ; and a direotii)n to carry on a businesH will not 
 iiiHtify an executor in tunltarkint' niorcj capital in it : Smith v. Smith, 1.3 (Jr. 81. 
 
 No interest 
 on suiUH 
 charged to 
 executor, 
 he liaB not 
 actually 
 rooetved. 
 
 KxocutorB 
 lending 
 money to 
 tlieuiselve 
 
 In cawM of siniiile neglect to invest, tlie Master is not justified in cliarging 
 interest ajfiiiiist the trustee initil the balaiuic amounts to a sum siitticient for an 
 (inliiiary investment. .'!i(400 was considered a reasonable smn for tliis purpose : 
 McLiiiiian v. J/iward, 9 (Jr. 178; and see Re Jnuen, Joiien v. Searlc, 4!) L. T. 
 N. S. 91. 
 
 When trustees, or executors, lend money to tliemselve.H at a lower rate tlian 
 cimitl have been obtained by investing it according to the trust, they will be 
 eiiiirtfealile with the liigluu- rate, b\it not witii rests: Smith v. Itm', 11 (Jr. 311, 
 at p. 315 ; and see Furlifn v. lioAs, '2 Cox IKi. 
 
 IJut when a trustee is authorized to invest in either of two specified modes, Or not in- 
 lUiil by mistake invests in neither, the measure of his liability is the loss arising vesting as 
 fnini liis not having invested in the less lu'iieficial of the authorized modes, directed. 
 Thus wiien a trustee was auttiorize(? to invest in (Joverinnent securities, or 
 mortgages, and he invested in Hank stocks, which proved a loss; he was 
 chargftl witli what woidd hav*^ i)een obtained had the nivestment been made 
 in (Joverunient sec\irities, altiiougli a larger rate of interest could have been 
 i)i)taine(l on mortgages: I'atvrsini v. lAiilei/, 18 (Jr. 13; and see fitrnfran v. 
 Iktiiinic, K. 15 (Ir. 48(5; and see lie (•'ahoiirie. Case// v, Uahnurie, 13 (Jnt. ()3.'). 
 
 Nor is an executor, or trustee, liabl(< to neglect in not calling in investments 
 miMle by the testator, in order to iiivest at a higher rate of interest, although 
 iHitliorized so to do : Smith v. Rni-, \\ (Jr. 311. Where a trust conil)any was 
 aiii)ointe(l executor of an estate and took over certain securities of the estate, 
 and without giving any security or covenant, paid interest at a lesser rate than 
 that received from the securities, to the beneficiaries, im the ground that they 
 hiwl "guaranteed '' the payment of interest on the finul, it was li(>ld that the 
 transaction could not be supported and that the company was accountable for 
 the interest actually received : Jlitltl.iir/h v. /)c \'illiers, 12 Aji]). Cus. 107, 024, 
 57 L. T. N. S. H8(J. 
 
 An administratrix, who allowed the moneys of the estate in her hands to be 
 used by her husband, was charged with simi>le interest at six i)er cent. ; it not 
 bfine shown that the money had been used in trade, or that any larger sum 
 had been realised : Fielder v. O'llam, 14 IJr. 223. 
 
 When an executor, or trustee, has i)roperly d(!j)osited the trust fund for safe 
 keeping, or not unreasonably ke])t it in his hands unemployed, he may be 
 relieved from payment of interest, except such as he has actually received ; but 
 if he have not kept it apart from his own moneys, or have used it, he will be 
 hable for interest on it ; Jkaton v. Jionmer, 2 Ciiy! Ch. 8!). 
 
 An executor, or trustee, charged with principal sums which have never come Interest 
 to his hands, but which have been lost by his neglect, is not always chargeable wlien it 
 with interest thereon as well : Vnnntun v. Thom/)S(Hi, 10 (Jr. .'542 ; Jie Shaw, runs. 
 15 (ir. (\2^t ; Rn ('niwter, ('ri)Wtrr v. I/i iismanii, H) Ont. 159; unle,sf 
 
 or default amounts to acquiescence in the sjjoliation of the estate : Sovereign, v 
 *i;f''(7'J, 15 (Jr. ,559; Ciidiie/j v. Ciidnei/, 21 Gr — • 
 
 Ont. 316. 
 
 ss his neglect 
 
 I : Sovereiijn v. 
 
 153; Archer v. Severn, 13 
 
 The commencement of a suit does not stoj) interest nmning : McLennan v. 
 Hnmnl, !» (Jr. 178 ; McMillan v. McMillan, 21 Gr. 3()9 ; but see /«.«/(/ v. John- 
 «"", L. R. 2 Chy. 225. 
 
 As against executors, interest should not ordinarily be charged, until after 
 the lapse of a year from the testator's death. 
 
 When a trustee or executor has made advances to the trust estate, he maybe 
 allowed simijle interest on the balances of principal due to him from year to 
 year, but not comiHJiuid interest : Finch v. I'rescott, L. R. 17 Eq. 5.54. 
 J..\. 11 
 
 .4 
 ■ . J- 
 
m''.: 
 
 162 
 
 OFFICRHS AND 0FFICK8. 
 
 Rule 67. PRiNcii'At. AMI AoKNT. An ajrciit who liiul iwed inonoyM of IiIh |)rinci|ial, 
 
 I'rinclinil with liiKdoiiHfiit, was only chaix»'<l Nini|ilt' iiit«'r<'Ht ; Mil.niiuiii v. //iinnil, !Mir. 
 
 and agent. 17« ; and where the state of accounts could not he ascertained initil tliey liiwi 
 
 buen taken liy the Court, interest on the tiidaiu^ewas charjfed only frcjin tlih 
 
 date of the Niasler's certificate: Tunirf v. llin/ciiis/Hnr, L, |{. •_» Cliy. 4s« ; 
 
 and Hce ll/ni/:/ v. ./uliiinlnii, lb. 2*2;"). 
 
 Where th<' jirincioal was foiuid indehted to the agent, iiiterest on tlie tmluiici- 
 was allowed from the filing of the declaration in the action by the agent td 
 recover the amount : Itidhi/ v Sfflun, lit (Jr. 14(i. 
 
 Legatees. Leoatkkm. — Interest on legacies runs from the end of a year from the ilcatlidf 
 the testator, in the alisence of any express direction in the will to the con- 
 trary : see Smith v. Sfiitmi, 17 (Jr. ;V.)7 ; even though the income of the wlnijc 
 estate be beciueathed to another for life : '/'ihiiiii'i/ v. Trmri/, 4 ( )nt. 7<W ; iiml »«■ 
 /te Olive, Oliir v. Wr-i/criiKiii, 50 L. T. \. S. 'ii'Ki ; but this rule does not ajiply 
 to 8ums appointed by will, under a power. As to such sums, interest runs from 
 the death of the testator : heeth'x v. (irii/iKtii, 20 (Jr. 258. But no interest can 
 l)e usually recovered on arrears of annuities, be(ineathed by will : (<'iil(l.wiillt\: 
 <i'(Msmitli, 17 (ii". 213 ; ('runi' v. Crime, 27 (Jr. 425 ; and see Snan' v. Itnikmirh, 
 lOOnt. 131; 21 C. L. .1. 401. 
 
 When a legivoy is vested in trustees uiK)n an express tnist, more than six 
 years arrear,. of interest are recoverable : Liu-iiiij v. hurinij, 12 (ir. 374. 
 
 A legatee receiving more than his share may be ordered to refund, with 
 interest : /ktviilKim v. liimimr, 17 (ir. .5011 ; as to creditors overpaid their pro- 
 ])ortion of the assets : see L'humherlen v. i'larke, 1 Out. 135 ; !) Out. Apj). 273. 
 
 Policies of Policies ok In.surance. — Interest does not begin to run, until the party 
 insurance, claiming is in |X)sition to give a full discharge : Toraiitn Saviiu/.i liank v. 
 Cunada Life, 14 (ir. 50i». 
 
 Partner- Partnership A(;coi;ntm. — In the absence of any agreement to the contrary, 
 
 sbip ac- i advances of capital made by a partner do not bear interest : Hill v. Kimj, 'J Jur, 
 
 counts. N. S. 527 ; 3 D. J. & S. 418 ; Cooke v. Iknbmo, 8 D. (J. J. & S. 1 ; Stexensw 
 
 Cimk, 5 Jur. N. S. 1415 ; but see Millar v. Craii/, (5 Beav. 433. This applih< 
 
 not only to the original capital put in, but also to subsequent advances ina<lf 
 
 by a partner on capital account : Jardine v. Jlope, 1!) (ir. 70. 
 
 No interest Neither is interest chargeable on capital agreed to be advanced by a partner, 
 allowed on but not advanced by him; Wilson \. McCarth)/, 13 C. L. J. 303; Hishtm 
 capital. V. Orissell, L. R. 5 Eq. 320. 
 
 As to tem- 
 porary 
 loanB— 
 quaere. 
 
 Interest al- 
 lowed on 
 sums in the 
 hands of a 
 partner, 
 or not ac- 
 counted 
 for. 
 
 No interest 
 on capital 
 withdrawn, 
 or profits. 
 
 Interest 
 payable on 
 capital 
 where 
 Btopped by 
 dissolu- 
 tion. 
 
 As to advance.s in the way of ten.jxjrary loans there seems to be no settled 
 rule. In Cuoke v. Benlmw, supra. Turner, L..T., thought interest should not be 
 allowed : and see De Ilertel v. Supple, 14 Gr. 421. But in Kx parte Chippen- 
 dale, 4 D. M. & G. 30, Knight Bructi, L. J., was of the contrary opinion ; ad 
 see lie (•erniau Mining Cn., 17 Jur. 745, 747 ; I'ini v. Harris, 10 L. R. Jr. Eq. 
 442. 
 
 Interest is chargeable on sums in the hands of a partner, and not accounted 
 for: Hutcheson v. Smith, 5 Ir. Eq. 117; or improperly applied: Evans v, 
 Cuventri), 8 D. M. & G. 835. But a i)artner in ixjssession or partnership pro- 
 perty is not oljliged to account on the ftxjting of wilfid default : Rmec v. H'wi', 
 2 J. & W. 550 : Davidson v. Thirkcll, 3 Gr. 330, at pp. 347-8. 
 
 Interest is uot chargeable on withdrawal of ca]iital, unless fraudulent or 
 improper : Cooke v. Jienbmo, supra ; Meymott v. Meymott, 31 Beav. 445; nor on 
 undrawn profits : Dinluim v. Bradford, L. R. 5 Chy. 519, 
 
 When capital carries interest during the continuance of a partnership, it does 
 not do so after a dissolution : Watney v. Wells, L. R. 2 Chy. 250 ; /**■« v. 
 Jtlwdes, .John 053 ; although the business is carried on for the purposes of a. sale: 
 Watney V. Welli, supra; unless where the capital is treated as a debt : H'"""'- 
 Scales, L. R. 1 Chy. 309 ; Barjield v. Lom/hborough, L. R. 8 Chy. 1 ; or i" ""■ 
 case of a sleeping partner : Parsons v. Hayward, 4 D. F. & J. AlA. 
 
 After the .Mil; 
 fiMiiKJ (hie ; lion 
 
 Ldsses rexiiltii 
 'ly the jiiU'tliers, 
 
 Ht.scif tli,'|artnt 
 
 •MoilTllAOKKM I 
 cliai'iicter receive 
 in excess of t|i(. ii 
 apply the siirphit 
 .kroiint with resi 
 lieav. LSd; Seh„/i 
 
 1"K<|. 407;umh 
 after having been 
 with conijioiind i: 
 Lli'lld v. .III. ,, 12 
 
 In Ciildifi: V. Ii 
 I'l'actice of the" C 
 arrear, he i.., „„t 
 against him, with 
 i Beav. 13(i; HV/; 
 -)S2; />«,./.v V. M„, 
 «•'""/, (J .Sim. 402. 
 account may he taJ 
 V. A'"M, 3 b. & J. 
 
 But the mere fac( 
 *'ii8ive as to the rig 
 cirounistance must i 
 (fagee who tiwk jkjs 
 «ot<.acc.umt, thoug 
 ^Beav.<J9; and se 
 
 If a mortgagee hcj 
 tiielesH not liable t 
 ^''""', 4 D. & s. 575 
 
 Rests may be mad 
 'Aum to the equity i 
 ''•■Hhen overiKiid, h 
 
 '•'*"Al4.Sim!7 
 
 Y''"' "«' mortga 
 ffnt more than suffi 
 
 'f,Vfthemortglg 
 lial'ficationsabove*^ 
 h"" .from tiie tinu^ 
 
 f:""7("« V. //„,-, vj 
 
 ;|tMint,s taken wit 
 
 .^S'^atthe time d 
 "■^'nterestthenirrj 
 
 The mere fact H,-. 
 
 •''* mortgagee in acti 
 A ,>er8on entering a 
 
 \'i% \i : "'^"">-on V. 
 l,B"taniortgatree 
 
^^HfftV,^^^^'lt, 
 
 MA8TKU S OFFICK. 
 
 163 
 
 'iuat, 
 
 Afti'i' tlic MivHtcr'n r('|Mii't, Niiiiplc iiitcrcMt at six jut cfiit. riiii.i <in the iiiiKiiint Rule 67. 
 fdiUKi <liif : liiiiiril/r v. liiui fil/r, 115 Hciiv. 12)t ; /tirnyr \. i'udr, -ill L. 'I'. N. S. Iiitorost 
 ,mil from dale 
 
 - • (it ici)urt. 
 
 L(iis(s ri'-iultiiiK fi'i'iii invt'Mtuu'iitH of iiartncrHliip iiioni'.vs, arc t(» lin '"""ui' ijosBeH how 
 liv till' iiiutiifi's, ill tlic Maiiif prdpdrtionM they art' fiititlcd to wliaru in tlie pi ■ Uoruc. 
 titi* <if tl"' I""''"'''''''''!' '^'"■'*'"'''^'* ■ '^''"''"' ^'- <'i'iiil'i'i'/iiiii/, 18 (Jr. ;i4r). 
 
 MoitTCAdKKH IN I'osHKs.sioN. — Wlit'ii a iiii)rtgaK«'i' in iHrnseHHiim, liaM in that MortRaneo 
 clmiactci' ii'ci'iviMl rents and protitn, (ir is chargca^h- with an (K!(Mii)ati()ii rent, in poHscu- 
 in excess of tiic interest (hie, tlie Master may strii<e a lialance perimlien ' , and h- >n, when 
 iipiily the sin'phis to the reducti<in of tiie principal ; this is called tai i„' the ''V'* 
 iMuofmt witii rests : TliiniD'i/ci'ii/t v. Crinki'lt, 2 \\. Jj. V,.-SM) : WilfK" v. <'/i'ci; 3' 
 llcav. 13(1; Scli'i/irld v. Iniihum, 1 C. P. Co. 477 ; TIiiiiii/mhi v. Iliul.iini, L. H. 
 10 K(i. 40" ; aiui see I'!.-!.' i' on Mortifages, i(o7, ct sn/. And where a mortgiiuee, 
 ivfter imvinff Iteeii paid in fnll, has eontinned in ])OHHeHsioii, he may U' charged 
 with CDiupeimd interest on his receipts: WHkhh v. A/rlrK/f'i', 1 Khks. ("iSO ; 
 Lh.lld V. ./". , 12 Sim. 4!H»; A.iliir,,,!/, v. J.iu'd, M Ch. I). 'A') ; 5« L. T. N. S. IS. 
 
 In Culilii-i: V. Jlii/I, !» dr. 110, VanKonghnet, C, state! it to lie the settled 
 practice of tile Court, "that wln^n a mortgagee enters, \i'\» money iH'injj' in 
 iirrear, he is not lialile to account for the rents received by, or chargeable 
 agftinst iiiiii, with rests, until he is paid off in full." And see Wiiian v. ( 'liier, 
 '■i Beav. 13<i; Wihi'ii v. MftvulJ'i', 1 Kuss. 530; I'aiil v. Jahnsmi, 12 Gr. at p. 
 4S2; Doi-in v. M((y, 10 Ves. 384 ; Funk v. Jtroirii, 3 Heav. 70; Latter v. JJasli- 
 uvikI, (i Sim. 4(>2. But if he enter when nothing is in arrear, it HeeuiH the 
 accdimt niay he taken with rests from the beginning of the jKmsession : ydmm 
 V. IMh, 3 D. & J. 119. 
 
 But the mere fact of nothing Ixnng due when possession is taken is not con- Mortgagee 
 thisive as to the right to have the account taken with rests ; every attendant when liable 
 circuniHtance must bo regarded : Hurlnch v. Smith, 1 Coll. 287. Thus a ".""^" witia rests 
 gagee who tiK)k jxissession of leaseholds to prevent a forfeiture is not liable 
 8u to accimnt, though nothing was in arrear when he entered: Patch v. Wild, 
 *) Beav. D9 ; and see (inrdon v. Kuhins, 1(5 Gr. 3(53. 
 
 If a mortgagee holds bills, or notes, foi«arrears when he enters, he is never- 
 theless not liable to accuunt witii rests, if they are dishonoured : Dobson v. 
 Luul, 4 D. & S. 575. 
 
 Rests may lie made when a mortgagee in possession sets up an unfounded 
 claim to the ecpiity of redemption, or resists the mortgagor's right to redeem ; 
 wwlieu overpaid, has denied that his mortgage was satisfied: Iiirnrporaied 
 S'Kielyv. llichardu, 2 Dr. & W. 258 ; Crijtpen v. Oijilvie, 15 Gr. 509 ; Maiityimiei'i/ 
 V. Cdhnil, 14 Sim. 79. 
 
 Wiien the mortgagee is in (Xicupation and is charged with an occupation 
 rent more than sufficient to pay the interest, the account may be taken with 
 rests, if the mortgage debt was not in arrear when he entered, subject to the 
 mialifications above mentioned, from the time he entered, or, if then in arrear, 
 then from tiie time he was i)aid in full : Wilsnu v. Metcalfe, 1 Hums. 530 ; 
 ninniiiytim v. Ilanmiod, T. & R. 477; l.Hdwell v. Hall, 9 Gr. 110; whei-e the 
 iwcuunt is taken with rests, it would seem that the jiroper time for making the 
 restrt, is at the time of each payment of rent, whenever the payment exceeds 
 the interest then in arrear. 
 
 The mere fact that a mortgagee resides with the owner of the equity of 
 fetlemption on tiie mortgaged proi)erty, does not render him liable to account 
 Ma mortgagee in actual occuiiation : Paul v. Jahitson, 12 Hr. 474. 
 
 A (lerson entering as a Imna fide pui-chaser from a mortgagee is not liable to 
 account as a mortgagee in possession, in the event of his purchase being held 
 invalid: Parkinsim v. llanOuii/, L. R. 2 H. L. 1 ; Cnrnill v. Roliertson, 15 (ir. 
 lii But a mortgagee who entered claiming to have purchased the equity of 
 fwlemption, but vho was held to be still redeemable, was ordered to account 
 ^"th rests: Aitchison v. Vnombu, (> Gr. (543; this point is not noticed in tiie 
 fflW, but see the decree, D. B. 4, fo. 57(5; but .see PorklH.itm v. Haudlmr;/, 
 'I'pm, 
 
WW 
 
 164 
 
 OFFICERS AND OFFICES. 
 
 Rule 67 Prior to Chy. Ord. 220, (Hide 57) the account could not be taken against a 
 
 No snecial mortgagee with rests, without an ex[)re88 direction in the decree to tliat effect: 
 direction iVehber v. Jltoif, 1 Mad. 13. Under Jiule.i T)*!; 57, no express direction in the 
 now ueccs- judgment is ni^cessary ; but the Master of course cannot properly take the 
 sary. account with rests in cases where it would not, under the fonner practice, have 
 
 been ordered by the Court. 
 
 years' occupation rent prior to the conunencement of the 
 3 of Limitations is no bar : <.'<Mwell v. IIuU, 9 Gr. 110; S. C. 
 
 III! 
 
 Statute of St.vtutk of Lisiitationh.— A mortgagee in occuijation is liable to account 
 Limita- for more than six ' 
 
 tions. action, the Statute i 
 
 7 U. C. L. J. 42 ; 8 U. C. L. J. !)3. 
 
 Statute of As against the i)erson of the debtor, arrears of interest, or rent, payable 
 Limita- under a coveiumt, accruing, or acknowledged in writing, or by part payineut, 
 tions how to be due, at any time within twenty years of the conunencement of the action, 
 far a bar to jmyg [5^^^ \u.\^ recoverable, even thougli such interest, or rent, be chaiyed 
 ^f w!,7«=t "lion, or payable out of land : K. S. O. c. GO. ss. 1, !» ; Allan v. MrTm-ish, 2 
 01 inieiesi. ^^^^^ ^^^^^ ^ ^78 . but see am(ri(, Sutli:ii v. SiUtnn, 22 Chy. D. Ml ; 48 L. T. 
 N. S. !« ; Fnwnside v. Flint, lb, 1.54 ; 22 Chy. D. .'57!», where it was lield that 
 the remedy on a collateral bond was barred, after the lai)8e of the time for 
 bringing an action in resiH>ct of the land mortgaged by the principal seourity ; but 
 as against land, no arrears of rent, or interest, in resi)ect of any sum of money 
 charged upon, ov payable out of any land, or rent, or in resi)ect of any legacv 
 charged upon laiicl, can be recovered biit within six years after the same shall 
 have respectively become due, or next after any acknowledgment of the saine, 
 in writing has been given to the i)erson entitled thereto or his agent signed by 
 the person by whimi th(! same was payal)le, or his agent : R. S. O. c. Ill, s. 17 ; 
 but a bond given by third parties as sureties for a mortgage debt was held not 
 to be barred luider R. S. O. c. Ill, s. 17 : see Re Pincers, UndscU v. I'hillipi, 
 30 Ch. D. 201; .53 L. T. N. S. ()47. But where any prior mortgagee, or other 
 incumbrancer, haslx^en in jmssession of any land, or in the receipt of the profits 
 tbereof, within one year next before an action is brought by any iM'rsoii entitled 
 to a subsequent mortgage, or other incumbrance, on the same land, the jwrson 
 entitled to trie subsefpient mortgage, or incuiiibrance, may recover in such 
 action the «/•'■'•(' ;'.v ((/■ interent whicii have become due during the whole time 
 that such prior mortgagee, or incumbrancer, was in jxjssession, or receipt, as 
 aforesaid, although such time may have exceeded the time of six years : see 
 R. S. O. c. Ill, s. 18. 
 
 In Mncdimald v. Mclhmald, 11 Ont. 187, Proudfoot, J., refused to follow 
 Sidtim V. Sidtoii, siiprff, on the ground that he was bound V)y tlie contrary 
 decision of the Court of Ajjpeal in Allan v. McTavish, snjiro ; and in Mdhmdd 
 V. hliwtt, 12 Ont. 08 ; 22 C. L. .7. 220 ; but see Trbnhle v. /////, 5 App. Cas. 
 342, and 14 Out. A))p. K. 2o(i. 
 
 When the Statute of Limitations is intended to be relied on -.s a bar to tiie 
 whole claim, it should be si)ecially pleaded : Ride 402 ; but it would seem that 
 it may be :.et up in the Master's office as a bar to part of the claim, without 
 having been pleaded: Wriijht v. Muvtinn, 1 Ont. App. R. (113; Ciillnuiifh \. 
 ('n/nliort, P. R. 28 ; when no claim for interest is made by the pleadings and 
 there is no covenant, six years' arrears only are recoverable : Wdey v. Leaynrd, 
 10 P. R. 182; 20 c. L.J. 142. 
 
 The Statute of Limitations may be pleatled as a bar to the taking of prt- 
 nership accounts: Xni/es v. ('niirlei/. 10 Cli. D. 31; and se(> Stum v. 
 Ciimberlanil, 18 iiv. 245'; Cnrmll v. Fnlen, 17 Or. .520; this latter decision, 
 however, would seem to be qualified by Wriijkt v. Maiynn, si'piv, but neaR^'l'' 
 402. 
 
 Wilful ne- 
 Rlect and 
 default ; 
 Ergllsh 
 rule re- 
 garding. 
 
 WUful Neglect and Default.— Under the present f^nglish practice, the 
 accounts cannot be taken on the f(K)ting of wilful default without a siiecial 
 direction in the judgment, or order, of reference ; and where wilful default i' 
 not i)leaded, no order can be made on the footinj? of wilful default, either at 
 tlie trial, or any subsequent time ; but where wilful den ult has been allegro 
 and a case made for it in the pleadings, an account may be directed on the 
 footing of wilful default, either at the hearing or trial of the action, or at any 
 
 subsequent stage 
 Mwkrell, 12 Cli. 
 case of fraud, w 
 Maner v. Mm- mi. 
 114 ; 20 Ch. D. 5 
 In Ontario no s 
 the Master to tf 
 default : see Ridi 
 course, to accoun 
 of Rules oO, ,57, J! 
 default, upcjii tlie 
 Section 2 of Ruh 
 been held that in 
 default, in all cas 
 Ciqu'id.e v. ir,/,„ 
 charged against a 
 not he is liable to i 
 he should not rej) 
 3Chy. Ch. 344; ai 
 received, and thos( 
 Court to deal with 
 a i»rson l)ec()iiies 
 interest vesting in 
 wise than aiscordinj, 
 have any right to 
 32!>;58L. t. \. s 
 
 KXEC'LTOHS AND 
 
 pleadings, and proi 
 entitle the plaintifl 
 
 Wl;/li/ V, lji,n^„n, 3 
 
 maynov,- make t'he 
 aveiTed at the plea 
 M, and see Itute 5(i 
 made under the com 
 -"" V. Mrdliiihim, ', 
 tentative himself • / 
 ■•ettled that the inr 
 I'nr'id-v. A //(III, P 
 All executor imiirc 
 'or the iJayment of 
 rents and profits • A'/ 
 intermeddling witii 
 woiuit as if ,I„lv 'e 
 
 ^1"! but in such a ca 
 '>"!l'jv. It,i,,,,^ 25 (ir 
 
 But it is the duty , 
 «mcerned, to adinini 
 "i™ shall n,.t be ,|,. 
 
 tr T'} '1*^'' "<^f 
 although they have „ 
 
 "f the executor, or tri 
 
 •'«l^.T.X.S..330. I, 
 "■'« held not to be li, 
 
 JVhen a testator exj 
 nhi" will and direct 
 J posal, and reinvest 
 
 flat the co-trustees ' 
 ™w«, 2()(ir. 321 I 
 
MASTER 8 OFFICE. 
 
 165 
 
 ■mbsequpiit stage : Re Si/mnnn, Luke v. Tmihiti, 47 L. T. N. S. (i84 ; Barher v. Rule 67. 
 Mwbrll, 12 Ch. D. 534 ; 41 L. T. N. S. 23, 201 ; where npidnvits raising a 
 case of fraud, were treated as pleadings ; and see Jab v. jtih, (> Ch. D. .W2 ; 
 Mamr V. Miinw/, 8 Ch. D. 424 : Itc liuwen, /ieiiiictt v. novvii, 47 L. T. N. S. 
 114'; 20 Ch. D. 538. 
 
 In Ontario no statement in the pleadings is necessary, in order to authorise Ontario 
 the Master to take accounts in imy proj)er case, on the footing of wilful rule. 
 default : see Rule 5(i. Mortgagees in ])osseasion, were always liable, as of 
 course, to account on the tooting of wilful neglect and default, and the effect 
 of Riih's 5(i, 57, is to place trustees, executors, and others, liable for wilful 
 default, ui)on the same footing in this resjiect as mortgagees in jjossession. 
 Section 2 of Rule .57, ajjplies in terms only to accounts of realty, but it has 
 been held that under Sec. 7, the Master may inquire as to wilful neglect and 
 default, in all cases referred to him without any sjH'ci.il direction so to do : 
 Cirpoil^r V. W'ikk/, 10 (ir. 3.54. Wherever wilful neglect and default is 
 charged against an accounting party, the Master is to determine whether or 
 not he is liable to account on that footing, and if so, the amount that is due ; 
 he should not report the facts as "sj)ecial circumstances" : Wahnslej/ v. JiuU, 
 3 Chy. Ch. 344 ; and in his report he should distinguish between sums actually 
 iKieived, and those charged by reastm of wilful default, in order to enable the 
 Court to deal with the o,uesti(>n of costs : MnuiUe v. LenUe, 12 Gr. ,5,37. When 
 a jier.son becomes beneficially entitled to a trust fmid, which, prior to his 
 interest vesting in possession, he has actively assented *■»> being applied other- 
 wise than according to the terms of the trust, neither he nor his re[)resentatives 
 have aiiv right to sue for the breach of trust : Kvims v. Jienynn, 37 Ch. D. 
 32!) ; 58"L. T. N. S. 700. 
 
 KxEciTOKS AN'i) TuUHTKKHi. — Fonnerly it was necessary to aver in the Executors 
 pleadings, and i)rove at the hearing, at least one act of wilful default, to and trus- 
 entitle the iilaintiflf to a decree to inquire as to wilful neglect ajid default : \f^?\ "^^^^ 
 Ski'jlit V. l.dirinii, 3 K. &. J. 2i(2 ; tliis is no longer necessary, and the Master liijfjfi l^I, 
 may nov; make the inquiry, thimgh nf) case of wilful neglect or default be gieot and 
 aveiTed at the ])leadings, or jjroved at the trial: Ctirpenier v. Umy/, 10 fir. default. 
 354, and see Rule 50. Formerly it was thought that the inquiry could not be 
 made under the common administration order obtained in Chambers ; llarri- 
 xiiii V. M<<ll(f<ln(n, 7 Gr. .531 ; e.xcept when obtained by the personal repre- 
 sentative himself : Leiff/erw md v. Le(l;/enr mil, lb., 584 ; but the practice is now 
 settled that the inquiry may lie nuule in every case per Boyd, C, Re AI/kii, 
 I'mdv. MIrni, !) P. R. 277 ; Siimnni v. Ilui-ti/, !) P. R. 500. 
 
 .\n exectitor imjirojierly delaying to sell Lands which, by the will are saleable 
 for the ))aynient of debts, in order to benefit himself, is liable to account for 
 rents and |)r()fits : Kmes v. Kme.i, 11 (ir. 325 ; and executors without authority 
 intermeddling' with, and assuming the management of, the realty, are liable to 
 account as if duly empowered to act as trustees : ('/linhulm v. liarimril, 10 Gr. 
 4'!!; but in such a case they are not entitled to any comi)ensati(m for so doing: 
 litm'j V. I)tvi!i, 25 dr. 542 : see now R. S. (). c. 108, s. 4. 
 
 But it is the duty of th'j Court in all cases where executors, or trustees, are Executors 
 c mcerned, to administer ecpiicy in such a nianr.er, that honest and re8j)ectable and trus- 
 men shall not be deterred from iiccenting the titfice, and if there is a doubt, tees enti- 
 where men have iicted honestly and hmni ,fi<le in uischarge of their duty, ^^^ *p 
 although they have iniule mi.stakes, the doubt should be detennined in favour j {J^j 
 of the executor, or trustee: Re Ovens, Jniu-s v. (hreiis, 47 L. T. N. S. (il ; In re ° 
 >^im'jht, S,i,'i,jl,f V. (iau)it, 22 Ch. D. 727 ; 48 L. T. N. S. 27!) ; i) App. Ca. 1 ; 
 •i»)L,T. N. S, .330. In Re ('n,wte,\ Cmwter v. Ilinmon, lOOnt. 1,5!), an exreutrix 
 was held not to be liable for moneys misai)proi)riated by her co-executor. 
 
 When a testator expressed the fullest confidence ..i one of the trustees named 
 m his will and directed the other trustees to be guided by his views as to sale, 
 disiwsal, and reinvestment, of his American ^ecurities, and declared that his 
 trustees should not be responsible for any loss occasioned thereby. It was held 
 that the eip-trustees were not answerabU; to legatees for loss occasioned by 
 unauthorized investments of their moneys, made by the tnistee : Rurritt v. 
 IhnUl. 2!) (ir. 321. But as regards creditors it seems they might not be dis- 
 charged : Doyle v. lilake, 2 Sch. & L. 239. 
 
 
 
166 
 
 OFFICERS AND OFFICES. 
 
 Rule 67. 
 
 A trustee 
 hands : He 
 but see Titdh 
 
 is liable for not taking projjer stens to get the trust fund into hi>^ 
 liroi/dcn liilliiK/ v. limiidi'ii, .38 Ch. D. Mii; 59 L. T. N. S. (iSO- 
 han'\. Medllaiil, u!) L. T. N. S. 370. 
 
 While the Court will not require from executors, and trustees, any greater 
 care than a jirudent man ordinarily bestows on the management of liis own 
 property, yet it will require them to give full explanations of all their dealings, 
 and of the causes why outstanding assets were not collected, or property of tlif 
 estate has disapiwared ; and a trustee, or executor, who cannot account for the 
 one or the other, will be chargeable with them: ('liinlnhn v. yic/v/«/v/, 10 (iiv 
 481 ; a trustee is not liable for losses arising through the default of ageiitu tcv 
 whom he may have proi)erly confided the management of the trust : Spei'jht v, 
 daunt, aii.pva ; and see Re Brier, lirier v. Ktisim, 20 Ch. D. 238 ; but he is for 
 the loss occasioned by employing improper agents : Fry v. Tapsmi, 2S Ch. D. 
 268 ; 51 L. T. N. S. 320 : or for negligently allowing the money of tlie estate to 
 remain in the hands of proper .agents: McVarter v. MeVarter, ' Out. "243; 
 Cann v. Vanii, 51 L. T. N. S. 770; He Mitehcll, Mitchell v. Mitchell, 52 L. T, 
 N. S. 178 ; Dewar v. lirouke, .52 L. T. N. S. 489 ; but not for moneys niisapjiro- 
 priated by a co-executor : JicCn.wter, ('niwter v. Uiumun, 10 Out. 1,5!) ; unless, 
 he has knowingly allowed them to remain in his co-executor's hands uninvested 
 without making any effort to secure the fund from loss. 
 
 Executors have a fair discretion in taking or delaying legal pr'iccedings. 
 against a debtor, and a delay in suing, even thongh causing a loss of the debt, 
 is not necessarily such negligence as subjects them to any liability : He Onvns, 
 Junes V. Owens, 47 L. T. X. S. (51. In the absence of special circumstances, 
 an executor is only liable for his own individual receipts, and iKjt for those of 
 his co-executor, but he is liable for the receipts of any agent jointly employed 
 by himself and his co-executor : Harrison v. I'aiterson, 11 (rr. 10.5. 
 
 There is no fixed rule as to the relative ])roportion which loans made by 
 tiiistees ought to befir to the valu«! of tlie property. As a geiu'ral rule more 
 than two-thirds the value should not be advanced ; but a trustee who, in the 
 honest exercise of his discreti(m, lends a little more than two-thirds, is not 
 Hal ie in the event of the security ju'oving iiiHufficient : lie (indfre'i, (I'lKlfrei/y. 
 Faulkner, 23 Chy. D. 483; 48 L. T. X. S. 853 ; and see Jie I'mrinn, (Me]i v. 
 Scarth, 51 L. T. N. S. 092. When trust funds are lost tb'.ough iniim)i)er invest- 
 ments, the trustees are all etjually liable, and as a generil rule one trustee who 
 has merely i)assively assented to the breach of trust ha< no right to \w indem- 
 nified by his co-trustee who has acted honestly in making .an improper invest- 
 ment : linhin V. llidjhes, 31 Ch, D. 390; 54 L. T. X. S. 188; /A"wi v. 
 Camphausen, 58 L. T. X. S. 8.51 ; but see I'e /'artin(/tiin, Partimjlun v. Allen, .")' 
 L. T. X. S. 054. 
 
 To accept a valuation niiule cm l)ehalf of the borrower is improper : Wnhilt w 
 Lyons, .54 L. T. X. S. 780 ; as also neglecting so obtain a formal vivhiutioii : /'>' 
 ()//iv>, Olice v. Westman, 34 C!i. 1). 70 ; 55 L. T. X. S. 83 : aiul see lU 
 Partinf/ton, I'artinijton v. Allen, supra, wliere trustees Wfire iield liable for 
 neglecting to give propter instructions to the valuators; and .-,«• /.fini/il v. 
 Wliiteley, 12 App. Ca. 727 ; .58 L. T. X. S. 93. 
 
 Mortgagees Morthacees. — A mortg.agee in ])ossessi(m is hound to account, iisofcour-e, 
 
 in posses- for what lie has, or but for his wilful default might, or ought to have, received: 
 
 Bion, liable t'/ify)/./,i /. )'<-««(/, ;« Beav. 330; I'arkiiison v. Uauliuri/, h. K. 2 H. L. 1 : 
 
 „i^ i \i i^Ki/'o-K V. II7//WW.V, 12 Ves. 493; Kensim/foit v. Ihmrerle, 7 D. M. & (r. 134: 
 
 dIfauU (Juarrel v. Beekford, 1 Marl. 274. liiit lie is not li.able for more than he has 
 
 actually received, unless it is ulearlv proved tliat he knew a greater rent iiiitfht 
 
 and could have been obtained, anrl that he refused or neglected to ol)t,iiii it : 
 
 Merriam v. Cronk, 21 (ir. 00; Co/duvll v. J/all, 9 (ir. llO, 114; Me/inl/e \. 
 
 Vamjnon, 1 Moll. 238 ; I/ui//ivs v. Williams, 12 Ves. 493 ; Hrund'.n v. lirmdnii, 
 
 10 W. R. 287 ; Coeks v. (Iran, 1 (iiff. 77. 
 
 Bents not A mortgagee not in jiossessicm, is not chargeable with rent which a tenant of 
 received, the mortgagor harl jjromised to pay him, but did not : Waddell v. Afci'i'lK 
 14 Gr. 211. 
 
 Losses on 
 invest- 
 ments. 
 
 Persons not Llal 
 

 MASTER S OFFICE. 
 
 167 
 
 Rule 07. 
 
 Agi'eetneut 
 between 
 mortgagee 
 and mort- 
 gagor, sub- 
 sequent 
 incum- 
 brancers, 
 not bound 
 by. 
 
 Vendor 
 after time 
 fixed for 
 completing 
 is liable 
 to purchas- 
 er tor rents 
 and profits. 
 
 A mortgagee in possession who lets the mortgaged premises subject to a 
 proviso that the lessee shall buy goods from him, is bound to account for the 
 rent that could have been obtained for the premises without such a restriction 
 as to trade, but he is not lx)und to account for the i)rofita so made : White v. 
 'Citii of London Brewery Company, 3!) Ch. D. .550 ; (JO L. T. N. S. 19. 
 
 Where a mortgagee takes possession at a rent agreed on between him and 
 the mortgagor, he is only liable to account to the mortgagor on the footing of 
 the agreement, but such agreement is not binding on any subsequent incum- 
 brancer, and as to him the Master may charge the mortgagee with a fair 
 occupation rent, though it exceed the amount agreed to by the mortgagor : 
 Court V. Jlitlhutd, 29 Gr. 19, and see Oifnwur v. Bue, 21 Gr. 284 ; Orefj;/ v. Arrott, 
 LI. & Goo. temjj. Si/yd. 240. 
 
 A mortgagee who concurs in a sale by a mortgagor and {wrmits the surplus 
 of the purchase to be paid to the mortgagor to the prejudice of subsequent 
 incumbrancers, is liable therefor to the latter : West Londini t'ammercial Jiank 
 V. Miance Permanent Building Society, 29 Ch. D. 954 ; 53 L. T. N. S. 442. 
 
 A puisne mortgagee who has cut timber on mortgaged property is liable to 
 account to the prior mortgagee for the proceeds, where the mortgaged land 
 proves an insufficient security : McLend v. Avey, 10 Ont. 305. 
 
 Vendor and Purchaser.— After the time fixed for completion of the 
 contract, the vendor is liable for rents and jjrofits, but usually only for those 
 actually received : Howell v. Howell, 2 My. & Cr. 48(5, unless he allow the rent 
 to fall ui arrear, when he will be held accountable for the arrears : Acland v. 
 Gai«ford, 2 Mad. 28 ; WiLson v. Clapham, 1 J. & W. 3() ; formerly a ai)ecial 
 case must have been made at the hearing to entitle a purchaser to have the 
 account taken on the footing of wilful default : Shericin v. Shakenpear, 5 D. 
 M. & G. .517, 532 ; Phillips v. Sylvexter, L. R. 8 Chy. 173. But this is no longer 
 necessary in Ontario : see ante p. 105. Where no time was named in the contract 
 for delivery of jKissession, the jmrchaser was held entitled to the rents from the 
 date of the contract : Brady v. Keenau, P. R. 202 ; and see Dudley v. Berczy, 
 2 Ch, Ch. 304, as to liability of vendor in jiossession. 
 
 No more than six years' arrears of interest on purchase money can be Interest ou 
 recovered fn)m a purchaser as a charge on the land, whether he has been in purchase 
 possession or not: Airey v. Mitchell, 21 (Jr. .512; (Innn v. Trust <(• L. Co., ''^""^y- 
 before Boyd, C. li)th .Ian., 1882 ; but in come cases where more than six 
 years' arrears was rt«overahle against the estate of a deceased i)eraon, the 
 excess Ix'yond .six years was allowed to avoid circuity of action : Carroll v. 
 Rnkrtson, 15 (ir. 173 ; Tai/lor v. Hararave, 19 Gr. 271 ; Hnveren v. Bradburn, 
 22 Gr. i«i ; Weaver v. Vandmen, 27 Gr. 481. 
 
 Principal and Agent. — A liailiff at common law was liable to account for BaililT 
 what he might have made of the lands, but for his wilful default : Seton 779 ; lia))le tor 
 Whnkr v. Home, Willes 208 ; Co. Lit. 172 a ; and an agent acting under a neglect 
 iiower of attorney is liable so to account, though the power be defective : Brad- f^\^^' 
 mime v. .Shaidy, 7 (ir. .509. But a solicitor who paid off a mortgage for a " 
 client, and entered into the receipt of rents, was not held to be liable on the 
 footing of wilful default, his possession being that of his client : Ward v. 
 Ciirttiir, L. K. 1 Ec|. 2t». 
 
 Persons not Liable to Account for Wilful Default :— 
 
 Partnkks in possession of partnership proj)erty are not liable to account on 
 the fjKitiiig of wilful default ; huridsm v. Thirkell, 3 (Jr. 330, at p. 348 : Howe 
 V. IIW/, 2 .1. & W, ,5.50 : but one partner may have a demand against another 
 forcomi)en«ati()n for negligence or fraud : Huni v. Allen, 1 Coll, 689: Ihtiipe 
 V. iitfwad, 13 (Jr. 037. 
 
 Tenants in Common who liave received more than their share, though liable 
 to account for the excess : Lorinier v. Lorimer, 5 Mad. 303 : Turner v. Mor- 
 'jnn, 8 Ves. 145 ; are not r.juwerable for wilful default : Wheeler v. Home, 
 Willes, 208. 
 
 Persons 
 not liable 
 to account 
 for wilful 
 neglect and 
 detault. 
 
 Tenants in 
 common. 
 
fpl^f 
 
 168 
 
 OFFICERS AND OFFICES. 
 
 Rule 57. 
 
 Tenant FOR Like.— A temuit for life may cut down timber in tlie prowr 
 
 Tenants for course of husbandry, in order to bring the prowr proiKirtion of land inti> cnlti- 
 life. vation and iwrhajis destroy such timl5er, but lie caiuiot cut down tinil)er even 
 
 for that i)ur|)08e and sell it for his own benefit : hrakv v. Wiijle, 22 (',, P. 341. 
 
 Sitimders v. lireak'ie, 5 Out. 
 
 (103. 
 
 Purchasers Purchahek for Value evicted by i)erson having a better title, and of wliicli 
 for value, he is fixed with constructive notice, is not liable to account on tlu^ footing of 
 wilful default : llnwell v. Ilowdl, 2 My. &. Cr. 478. 
 
 Persons in Perhonh who have obtained posse.ssion kv Fravd, are not liable to 
 possession account on the footing of wilful default : Mar ran v. I'aimer, 2 Sch. & L. 474 ; 
 by fraud. Trcvelyan v. Charter, !) Beav. 140 ; 4 L. J. N. S. 209 ; 11 CI. & F. 74. 
 
 Occupation Occupation Rent.— A iierson liable to account for rents and profits may gen- 
 rent, when erally, if he liave been himself in actual ()ccu|)ation of the jjrojwrty in question 
 charge- jg^, (,i',.^i.p.,.(j with a fair rent for the time he has so occujjied, — vvhicli account of 
 ^' rent is liable to be taken with rests, wherever rests would be charged if rents 
 
 and ijrofits had been received. 
 
 As against Vendors.— A vendor who continues in occupation after the time fixed for 
 Vendors, completion may be charged with an t)ccupation rent : Lnjf/ntt v. Melrn/itililtm M, 
 ir. ( 'ii. , L. R. .5 Chy. 71<) ; />,'/'■/• v. JIa ryrn re, 10 Ves. .5()5 ; but not in cases when- 
 the purchaser could, and ought to have taken jiossession : l)akin v. ' 'i/«',2Russ. 
 170 ; nor where — the purchaser making default in payment — the vendor con- 
 tinues to carry on his business : Lniyijlt v. MvtnipiiUtan M. W. Vti., mqjru. 
 
 Purchas- Purchaserh. — Where a conveyance is set aside, an occupation rent may l* 
 ers. charged against a purchaser wlio has been in occui)ation : Jiliumier v. Spittk, 
 
 L. K. 13 Eq. 427, Xrcmm v. Vhirksun, 2 Ha. 103, but see I'arkintmii v. Him- 
 
 bury, L. R. 2 H. L. 1. 
 
 Mort^aRee, Mortgacee. — A mortgagee may be charged with an occui)ation rent, if it lie 
 liability of, proved that he has actually occupied the mortgaged j)remises ; Triihick v. 
 1 V^'n'^' 5jo/>fV/, 15 Sim. 205. Any agreement as to the amount of the rent made 
 rent, between mortgagor and mortgagee, though binding between them, is not 
 
 binding on others interested in the equity of redemj)tion who are not parties 
 to it : Cuitrt v. HnJlaml, 2!) Gr. lit ; (j'rcyy v. Arrott, LA. & (J. temp. Sugd. 24ti, 
 And where rent is paid in advance U) a prior mortga,gee, and ap))lied, with the 
 consent of the mortgagor, in discharge of other liabilities than the mortgage 
 debt, a subsequent assignee of the equity of redemjjtion is entitled to have all 
 rents accruing subsequent to the assignment apidied in reduction of the prior 
 mortgage, notwithstanding the jjayment and ap])lication in advance ; Uil>imur\. 
 Boe, 21 Gr. 284. A inc. tgagee who continues in occupation after payment in 
 full, is chargeable with interest on the occui)ation rent, witli rests ; Wikon v. 
 Mctcalf, 1 Russ. 537 ; Quarrel v. Heckford, 1 Mad. 2()0 ; Lhwl v. Jonm, 12 
 Sim. 4'.J1 ; Anhworth v. L<ml, 30 Ch. D. ,545 ; .58 L. T. N. S. 18 ; and, if after 
 exercising a ])ower of sale, he retains a balance in his liands, he is lx)inid t<i 
 make it productive, and is chargeable with interest thereon if lie do not : 
 Charles v. Jomx, 35 Ch. D 544 ; 5<) L. T. N. S. 848. 
 
 interest. 
 
 May set off A mortgagee in occupation is entitled to set off, against the occupation rent, 
 f"^^J5i.°' ^^'^'^ whicli Tie is charged, the arrears of interest, so far as they were recover- 
 "'' able against the land at the time the rent accrued ; /. e., for six years iiriortn 
 
 its accruing : Walton v. Bernard, 2 (ir. 358 ; Harrixon v. Jone.i, 10 (ir. !Ht. A 
 prior mortgagee is not bound to account to a subsequent mortgagee on tlie 
 f<K)ting -if a mortgagee in jiossession, merely because there is an attornment 
 clause in the prior mortgage, if he have not actually taken possession: 
 W'extern District Hank, Limited, v. Turner, 47 L. T. N". S. 433 ; Stuiile;/ v. 
 Grundy, 22 Ch. D. 478 ; 48 L. T. N. S. 100. 
 
 Tenants in Tenants in Common.— A tenant in common who has lieen in exclusive occu 
 common, pation, cannot be charged with an occupation rent, if he have not ousted hi* 
 liable for co-tenant : Itiee v, (icorye, 20 (ir. 221 : Be Kirkpatriek, Sferenson v. firf- 
 occupation i"'''"''''^> 10 P. R. 4 ; except where his co-tenant is an infant; Ciiurmrs. 
 rent. Coureier, 20 Gr. 307. But he cannot recover for substantial re))air9 and 
 
 improvements ; Rice v. Ueorge wpra ; nor even for incumbrances paid off by 
 
 Improvements : 
 

 MASTER 8 OFFICE. 
 
 169 
 
 him, unless he also submit to account for an occupation rent : Teimltik v. Rule B7. 
 Sdii'krsiiii, 33 Heav. 534; Biret v. Desnurdi, 12 C. L. J. 203. But a tenant in 
 common wlio has been in exclusive occupation, and has ousted his co-tenant, 
 is liable to account for an occujmtion rent : I'asnw v. Swan, 27 Beav. 508. 
 
 Heiks.— Prior to the J)evnlutiini of Kdnte.i Ad, ISSti, (R. S. O. c. 108), an Heir-at- 
 heir-at-law was liable to account to a dowresa for an occupation rent : liamfurd law. 
 V. Uamfiifd, 5 Ha. 203. 
 
 Deviskk. —lender the law as it stood previous to the iJevohitiitn of Estates A r.t, 
 ISSH, (K. S. O. c. 108, ss. 3-10), devisees in possession of land devised, charged 
 with a legacy, were not bound to account for back rents, when the land [)roved 
 insufficient to satisfy the legacy : (iarfitt v. Allen, 37 Ch. D. 48. 
 
 Tkustkeh, exj)ress, or constructive, in occupation, of the trust property, are Trustees, 
 liable to account to their cestui que trust for an occupation rent : Mill v. llill, 
 3 H. L. C. 828 ; Lamont v. Lamunt, 7 Gr. 258. 
 
 5IisT.\KE OK Title. — No occupation rent should be charged against a person 
 who has been in occupation inider a mistake of title, in resj^'ct of the increased 
 value thereof arising from improvements made by him and which are not 
 allowed to him : Mcdregor v. Mcdreyor, 5 Ont. 017 ; Munsie v. Luulmy, 10 
 P. R. 173. Where occupation rent is charged in resjjcct of property which has 
 tjeen imjiroved by the occupant, according to the value as mcreased by the 
 improvements, interest should be allowed on the outlay for the improvements : 
 Mansie v. Linilsui/, 11 Ont. 520. 
 
 Improvements : 
 
 Persons in Possession op Lands Undeu Voin Dkeds, making lasting Persons in 
 improvements, by which the value of the estate has l)een enhanced, may, possession 
 within certain limits, be allowed for such improvements : ,/oiiin v. Stiut/i [J"^g ^how 
 E(tnleni Ritihixiii Co., 2 Sm. & (J. at p. 73 ; Quarrel v. lieckfonl, 14 Ves. at p. tar entitled 
 179 ; and wiiether in as actual or constructive trustees : Williamson v. Seeher, to. 
 3Y. & C. Ex. 717 ; Cawdor v. Lewii>, 1 Y. & 0. Ex. 427 ; JSridue v. Brown, 2 
 Y. & C. (\ C. 1!)1 ; Bcnis v. Boulton, 7 Gr. 3!) ; or as solicitors : liohinson v. 
 Ridley, Mad. 2 ; or agents : Trereli/nn v. \\ hite, 1 Beav. 588 ; or as mort- 
 gagees believing themselves absolutely entitled : Xeesom v. Clarkson, 2 Ha. 
 176 \ S.CA Ha. 07 ; or as bona fide purchaser under the void deed : Ashton v. 
 Imis, 26 fir. 42 ; Chtircher v. Bates, 42 (J. C. Q. B. 40(5 ; Peghi/ v. M'oods, 14 
 (;r.47 ; <<mnmerson v.Bantinij, 18 (ir. 510; and the claim for .such improvements 
 may be actively enforced, and allowed, whether the i)arty claiming them be 
 jilaintiff or defendant : /li ; but see lie Brazill, Barri/ v. Brnzill 11 Gr. at 
 p, 2.5() ; and even though the party claiming adversely be an infan . Beeis v. 
 liiiiiltim, siqira ; and se Biehn v. Biehn, 18 Gr. 497 ; W (wd v. d'oof/, IP ^ir. 471. 
 
 But when i)ossession had been taken in jjursuance of an immoral agre(»nient 
 which was void, it was held that there could be no lien for improvements : 
 Moon V. Chirk'; 30 C. P. 417. 
 
 Tenants in common are entitled to contribution from their co-tenants for Tenants in 
 tile cost of re|);iirs marie to prevent the property going to ruin : Co. Lit. 2iXI b. conimou. 
 Fitzherbert X. B. 127 ; but not for ordniary repairs : Lei'jh v. Dickcson, 12 (2- 
 B. D. 1!)4 ; 50 L. T. N. S. 124. 
 
 Ten.\nts von Like are not entitled to charge for repairs as against the Tenautsfor 
 inheritance, liowever substantial or lasting : Lewin, 7th ed. 503 : Be Smith, 4 life, 
 Ont. 518 ; «,d ride. Conical/ v. Fenton, 40 Ch. D. 512. 
 
 Ten.^nts at Will. — Imiirovements made by a tenant at will cannot be Tenants at 
 allowed : Foxier v. Enimerson, 5 (ir. 135 ; but improvements made on wild land will, im- 
 liyasoM, to whom his father had jiromised to give it by way of advancement, prove- 
 wliich he failed to do, were allowed as against the co-heirs of the father : Biehn iw^"*^ "y- 
 V. Biehn, nupra ; Hovey v. Fcri/uson, see 18 (.Jr. 498 ; but see Foster v. Emmer- 
 
 WroN(!|)oehs. — A mere wrongdoer, entering witliout colour of right, is not Wrong- 
 usually allowed for improvements made by him : Towmley v. Neil, 10 Gr. 72 ; doers not 
 
 
 M, .^a-Aii 
 
170 
 
 OFFICERS AND OFFICES. 
 
 Rule 67. Scott V. Hitnttr, 14 (ir. 370 ; nor jjernoiiH entering with actual notice of 
 allowed for "■ puriinmunt title : Wiioiiiinii v. Ikdl, 24 Gr. 5(i4 ; Smith v. Uihmn, 25 C. P, 
 improve- 248; Kifhorii, v. Wo7-kin(tn, U (ir. 255; (wrussct v. Carttr, before Boyd, C, 
 menta. 2nd Sejjt., 18H4. 
 
 ExceptiouH But it would seem mere legal fraud will not deprive a party of the right to 
 
 to rule. iniprovementH : McLaren v. Frastr, 27 Ur. at p. 50!) ; and see JVivills v. Aivilh, 
 
 (ir. 121, 13!) ; and the owner standing by and not objecting, may preclude 
 
 himself from getting back his estate, except on the tennsof jjaying for improv- 
 
 ments : /tavii v. Sni/der, 1 (Jr. 134. 
 
 Mistake of 
 title, im- 
 prove- 
 ments 
 made 
 
 under, how 
 far recover- 
 able. 
 
 By mort- 
 gagee 
 
 Imi'1{()ve.ment.s Made Under Mistake ok Title.— ImprovemeutK made 
 under a fiaiia fide mistake of title tnay now be allowed under K. S. 0., c. 100, 
 ». 30 : Fam-rU v. lUinrell, 27 Gr. 445 ; ilcdreynr v. Mc<lreiii)r, Ih. 470 ; McCurthfi 
 V. Arhm-kk, 2<» C. P. 52! I ; Currick v. Smith, 34 U. C. Q. B. 3.Sit ; Skne v. 
 (7ia/wmii, 2Hir. 54!t ; Minmiev. Liiidmy,lOP. R. 173 ; 1!) C. L. J. W\; I'lumhw 
 Steinhn/f, 2 Out. 014. But improvements made with actual know 'dge of the 
 paramount title will not be allowed under that Act ; U'l/irmiiii/ v Ml, 24 (ir, 
 504 ; Smi(/i v. (•ihsiiii, 25 C. P. 248 ; and see Kilhorii v. WnHmaii, !l Gr. 225. 
 Improvements made after action commenced cannot be allf)wed : (J'Gmihi v. 
 McCafferi/, 2 Ont. 30i» ; lirijht v. Campbell, 53 L. T. N. S. 428. 
 
 Improvements made under mistake of title by a pers(m in as mortgagee, hut 
 lielieving himself absolute owner, are allowed more liberally than iinimne- 
 ments nuide by a mortgagee knowing he is a mortgagee : ( 'arroll v. Hnln'iismi, 15 
 (ir. 173. 
 
 Imjjrovements made by a purchaser from a mortgagor under the erroneous 
 belief that the mortgage had been discharged, cannot be claimed as ivgaiiist 
 the mortgagee : Jieatij v. Shaw, 14 Ont. A]ip. iiOO. 
 
 A husband is not entitled to be ])aid by his wife, for improvements made hy 
 him on her lands while in his occupation : Till v. Till, 15 Ont. 133. 
 
 TuisTEKs. — Substantial and lasting imi>rovements, and rei>airs, made by a 
 trustee on the trust property, are usually allowed to him : Jitrln v. Boultmi. 
 7 Gr. 3!» ; .1/(7/ v. Jlill, 3 H. L. 0. 828 ; Smith liotniisteel, 13 (xr. at p. Si);Kt 
 parte Iliajhea, Ves. 024 ; Kj- parte Jamex, 8 Ves. 352; Campbell v. WuVuff, 
 5 Ves. 082; 1 tarry y. Diiraut, 1 D. G. & J. 536 ; Kimj v. Audersi.n,'^ Ir. K. 
 Eq. 025, ()3(i. Kei)airs are allowed even in the case of actual fraud : Bnwjh v. 
 I' rice, 1 (i. Wils, 320 ; and in one case improvements also : Oliver ", Ciitirt " 
 Price 172 ; Imt .see eintra: Keiiiiei/ v. Jiroiviic, 3Ridg. 518- Stratt(i': ''■ .•..■;.«. 
 1 Ir. K. Eq. 301. 
 
 Beceivors. Keceiveks have been allowed for improvements made without t'.r ..; .;'■■ 
 sanction of the Court : Tempext v. (h'd, 2 Mer. 5.5. 
 
 Connnitteo COMMITTEE ok Lunatic— Also allowed for improvements made, : .it 
 previous sanction : Re Shaw, 15 Gr. 018 ; Re Churchill, 3 Jur. 71!>. 
 
 Pehhoxai. Kei'KEse.vt.vtive. — An unauthorized expenditure by an executrix 
 in impi-oving the realty, was allowed, so far as the value of the estate had 
 been enhanced, and those interested had benefited by it : Mnrleii v. Mutthm, 
 14 (ir. .551. But where an administratrix had occui)i<'d and inijOTved the 
 realty, in a suit by her for administration, such impix)vements were disallowed 
 as against infant heirs ; but she w as not charged with any increase of rental 
 in consequence of such improvements : Re Brazill, Barm v. Brazill, 11 'ir. 
 253. 
 
 Purchaser. Puhchahek.— Failing to complete purchase is not entitled to be allowed tor 
 improvements : Kc Yai/t/ie, 1 Chy. Ch. 52. 
 
 Mortgagee. MoRTOA(iEE.— The ordinary rule is, that a mortgagee will not be allowedfor 
 imj)rovenients further than is proper to keep the i)remise8 in necessary repair. 
 But if buildings are incomplete or ruinous, he may complete or pull them 
 down, and rebuild, and the rebuilding or repairing, may l)e done in an improved 
 manner, and more substantially than before, so that the work be done provi- 
 dently, and that no new or expensive buildings be erected for purixises aiffer- 
 
 Trustees 
 are entitled 
 to beallow- 
 ed for iui- 
 prove- 
 meuts on 
 trust es- 
 tate. 
 
 Personal 
 representa- 
 tive. 
 
 ent from those fr 
 when restored oi 
 received it, Fishei 
 allowed to charge 
 jmriKise of keejHn 
 (land, chargeable 
 traceable to such 
 ,s. 1127. 
 
 Mortgagees in jx 
 just allowances, 
 [lermanent improv 
 108(1. In Ontario, 
 necessary to enable 
 ments. 
 
 A mortgagee in 
 improvements that 
 10 Gr. (»9 ; unless \ 
 redemj)tion : Kirbi/ 
 the mortgagor's san 
 [wrty: Sawlon v. / 
 IS not bound to give 
 manent iniprovemei 
 
 When a mortgage 
 improvements, he si 
 V. (Jueiit, (i (ir. 510, i 
 I'ent, arising therefi 
 Mumie v Limhaii, 1 
 
 The Master is no 
 nieiita, but should 1; 
 derived tiierefn)m : , 
 
 A jwrson who had 
 iiotwithstandin,',' the 
 him as far as they en 
 to .8'jch iiii])roveiiient 
 inal:e, knowing him- 
 and see McLaren v. 
 But when a inirclias 
 closire, which was di 
 were not foreclo.sed, 
 'Hitstanding title, su( 
 '-iosed parties ; Rnxxn 
 -'2 (ir. 4(J!1. 
 
 But wiiere the nior 
 afterwards the mort" 
 i"tere.st, and all cost's 
 "lortgagee wm held 
 although the estate n 
 '"the sum expended 
 
 \\'H.\T I.MI>li()VEMK 
 
 |W3,Ba|.ennaiient ; 
 *"• 2 ; Rthiiiet V Pick 
 
 Aft^-r suit coniinen 
 allowed, are such as i 
 "■'■'mhion, 20 (ic. niH 
 
 Trustees witii powei 
 ^irerectinganewlmil 
 If Henderson, 23 (ir. 
 
MASTER 8 OFFICK. 
 
 171 
 
 ent from those for which the former buildings were used ; for the property Rule 67. 
 when restored ouijht to ht' of the same nature as when the mortgagee 
 receivwl it, Fisher Mt)rtg. 1532. And while the mortgagee in iM)ssesKion is not 
 allowed to charge for lasting imi)rovements which are not re(iuisite for the 
 imriKise of kceinng the pro])erty in necessary repair, he is not, on the other 
 hand, chargeable with the increased rents and profits which are directly 
 traceable to sucii improvements made by him : see Jones on Mortgages, 
 s. 1127. 
 
 Mortgagees in jwssessicm are entitled to be allowed for necessary repairs, as 
 ju9t allowances. But in England no allowance for substantial repairs or, 
 Ijermanent improvements, can Ixs made without an express direction : Seton 
 1()80. In Ontario, under Rules ,5(5, ,57, no sjiecial direction in the judgment is 
 necessary to enable the Master, in a projier case, to allow substantial impi-ove- 
 irents. 
 
 A mortgagee in ixjssession cannot charge the mortgaged property with 
 improvements that are not necessary for its j)re8ervation : Harrixim v. Jones, 
 10 Gr. Oil ; unless with the consent of the parties entitled to the equity of 
 redemption : Kirhy v. Kirhjf, 5 Gr. 587. And improvements made even with 
 the mortgagor's sanctitm must not be such as to improve him out of his pro- 
 iwrty : Sdiuloii v. Hooper, (> Beav. 24(5 : Fisher Mortg. 948. But a mortgagee 
 IS not bound to give the mortgagor notice before making any reasonable ix>r- 
 manent imijrovement : Shepherd v. Jones, 47 L. T. N. 8. (504 ; 21 Ch. D. 4(59. 
 
 When a mortgagee is charged with rents, or improved rents, arising from his 
 improvements, he should eitner Ije allowed for such improvements : Constable 
 V, (iuut, (5 (ir. 510, or he should not be charged with the rent, or improved 
 rent, ari-sing therefrom : Mcdreyor v. McOre(ior, 5 Ont. (517 ; 19,C. L. J. 78 ; 
 Mumie v Liiuhdii, 10 P. R. 173 ; liriiiht v. Campbell, 53 L. T. N. S. 428. 
 
 The Master is not necessarily bound to allow the actual cost of imi)rove- 
 menta, but should limit the allowance to the benefit which the property haw 
 derived tlierefrom : Paul v. Johnson, 12 Gr. at p. 479. 
 
 A person who had bond fide jiurchased under a power of sale in a mortgage, 
 iiotwithatandinar the sale IxMiig held invalid, was allowed im])rovements made by 
 hiin as far as they enhanced the value of the f)roperty, and was not restricted 
 to such iiii|)roveinents as a mortgagee in jxjssession would have been entitled to 
 inalte, knowing himself to be a mortgagee : Carroll v. Robertson, 15 (ir. 173 ; 
 and see McLaren v. Fraser, 17 Gr. .5(57 : Bave/i v. Durunt, 1 D. G. & .T. ,534. 
 But when a jmvchaser fnmi a mortgagee, who had obtained a decree of fore- 
 clostre, which was defective owing to there being outstanding claims, which 
 were not foreclosed, entered, and made improvements, having notice of the 
 iiutstandin^' title, such imi)rovemeiits were disallowed cis against the unfore- 
 '.losed i)arties ; Russell v. Ronmnes, 3 Ont. Api). (535 ; and see Romanes v. Herns, 
 ■12 dr. 4(i!». 
 
 But where tlie mortgagor released his equity of redemption, and two months 
 after»vards the luortyjiTee agreed to reconvey, iijion being rei)aid principal and 
 interest, and iill costs of improvements made by him. On a bill to redeem, the 
 mortgagee was held entitled to recover for all permanent improvements, 
 although the estate might not have been increased in value to an amount equal 
 to the sum exi)euded : Jlrotherton v. Hetheriniiton, 23 (Jr. 187. 
 
 What Imi'Uovemkxts Allowed.— The clearing of land for fanning pur- 
 IKises is a pennaiK'iit improvement, under The Dower Act, K. S. O. c. 5(5, s. 12, 
 vs. 2 ; Mnnet v Pickerhuj, 44 \J. C. Q. B. 337. 
 
 After suit commenced, the only improvements which can oi-dinarily be 
 allowed, are sucti as are made to save the premises from deterioration ; Hnien 
 V. l'<ishion, 20 Gc. 518 ; and see O'Hrady v. McCaffreii, 2 Ont. 309. 
 
 Trustees with power to invest in the i)urchase of real estate, may be allowed 
 for erecting a new building where an increased income can be obtained thereby : 
 RtHrmlerson, 23 (ir. 45. 
 
 MortRacees 
 entitled to 
 be allowed 
 for neces- 
 sary re- 
 pairs. 
 
 But only 
 such as are 
 necessary 
 for preser- 
 vation of 
 property. 
 
 When 
 rents aris- 
 ing from 
 improve- 
 ments 
 charged, 
 improve- 
 ments also 
 allowed. 
 
 Improve- 
 ments by 
 purchaser 
 when sale 
 inva id, al- 
 lowed. 
 Seciis if he 
 have know- 
 ledge of de- 
 fect. 
 
 Mort(;agee 
 submitti ng 
 to re- 
 demption 
 entitled to 
 all im- 
 prove- 
 ments. 
 Wl-.at im- 
 prove- 
 ments al- 
 lowed. 
 
m -i w. 
 
 172 
 
 OFFICERS AND OFFICES. 
 
 Hule 07. 
 
 ■Covenant 
 to pay for 
 iniprove- 
 ments in 
 rectorial 
 lease in- 
 valid. 
 
 Costs and 
 expenses 
 reuover- 
 able by 
 mortga- 
 gees. 
 
 Costs of 
 sales. 
 
 Costs of 
 taking i)os- 
 session, 
 •otc. 
 Cannot 
 charge for 
 personal 
 services, 
 but may for 
 agent's ser- 
 vices, col- 
 lecting 
 rents. 
 
 Insurance, 
 when re- 
 coverable. 
 
 Prior 
 incum- 
 brances. 
 
 A rector cannot make a lease with a covenant, to pay for improvements, 
 whicli will be binding' on his suceeasor : Kirkpntrick v LpHcr, 13 Gr. ,323 ; l('i 
 (}r. 17 ; unless tliere be some statutory jjrovision empowering iiim so to do. 
 
 Costs, and otber Expenses:— 
 
 M()HTfj.\(JEKH. — A mortgagee is entitled to charge against the estate, the costs 
 of defending the title to the mortgaged estate, for the benefit of all jiarties 
 interested in the equity of redemjjtion ; and also the costs of proceedings taken U\ 
 l)erfect his security, r. <>., the costs of an equitable mortgagee of investiq;atin(f 
 the title for the jjurpose (jf prejjaring a legal mortgage, and the costs of \)w\m- 
 ing such legal mortgage are recoverable : Notional Prorl. Bank v. (kivm, 53 
 L. T. N. S. !W5; 54 L. T. N. S. «))('); 31 Ch. D. .')82 ; also, costs of a suit to 
 redeem, brought by a subsecpient incumbrancer, and dismi.s8ed : McKinnon v. 
 ArulerHon, 17 Gr. i53() ; 18 (xr. 084 ; but not the costs of defending his own title 
 to the mortgage, unless those interested in the equity - f redemption had 
 C(mcurred in, or J>^;sisted, the litigation : Parker \. Watkins, John 133; nciryet 
 the costs of an unsuccessful litigation undertaken by him without the con- 
 currence of the mortgagor : MV//.9 v. Tlie Trust and Loan Co., !( Ont. 170. 
 
 Til Re Orijfith, .50 L. T. N. S. 434, it was said by Cotton, L.J., that in a 
 foreclosure .action " the mortgagor must jiay all the costs of the mortgagee, 
 including those payable by the latter to his solicitor." 
 
 The mortgagee may also be allowed the expenses of sales, and of receiving 
 the purchase mr.iey : Fisher Mortg. 952 ; and also the costs of an .alxirtive sale, 
 wliere it has fallen through without the default of the mortgagee ; Farrer v. 
 iMcy, 31 Ch. D. 42 ; .50 L. T. N. S. 121. But he is not entitled to a commis- 
 sion on a sale in addition to the costs, even though he has stijuilated for it: 
 Jii/rc V. ]lH:/hes, 2 Ch. D. 148 ; Brmd v. .Se.lfe, 9 Jur. N. S. 885. 
 
 A mortgagee is also entitled to the expenses of taking and holding possession 
 of a ship, advertising it for sale, and insurances : Wilkes v. SaHniim, 7 Ch. D. 
 188. 
 
 He is not entitled to charge for i)er.sonal trouble in collecting rents : Bmn- 
 thim V. Ilockmire, 1 Vern. 31G ; Langstaffe v. Fenwlck, 10 Ves. 405 ; Ondfrei/w 
 Watson, 3 Atk. .518 ; Leith v. Irvine, 1 M. & K. 277 ; not even if he have stipu- 
 lated for it with tlie mortgagor : French v. Baron, 2 Atk. 120 ; Barrett v. 
 Hartleij, L. R. 2 Eq. 789 ; i'lmmbers v. (ioldwin, 9 Ves. 271. But the mort- 
 gagee is entitled to an allowance for an agent, or bailiff, collecting rents when 
 the property is of such a character that a prudent owner whose time was of 
 value would appoint an agent : Union Bank v. Ingram, Kj Chy. D. .53. 
 
 It has been held that a solicitor mortgagee, who is a trustee, is not entitled 
 to profit costs of suits brought by him in respect of the mortgaged pro])erty : 
 Sclator V. VoWm, 29 L. T. O. S. .S09; 3 Jur. N. S. 030; but see contra Ri 
 Donaldson, 27 Cliy. D. 544 ; 51 L. T. N. S. ((22. 
 
 Insurance.— Sums paid for insurance by a mortgagee cannot, in tlieabsence 
 of a si^-cial contract, be charged against the mortgaged estite : Bdtawj v. 
 Brickmdin, 2 J. & H. 137 ; Brook v. Stone, 13 W. R. 401 ; Dotison v. Land, » 
 Ha. 21(1 ; Riiswil v. Rotiertmn, 1 Chy. Ch. 72 ; 6 U. C. L. J. 143 ; but see 
 Scholefiild V. Lockwojd, 11 W. R. .5.55. But in the case of a trustee, such pay- 
 ments may be allowed, without any e-ipr-SB sti])ulation to that effect in the 
 instrument creating the trust : Heron v. Aoffatt, 22 Gr. 370. 
 
 Where a subsequent account is directed i o be taken, sums proi)erly paid for 
 insurance since the last account, may be allowed under the head of just allow- 
 ances, without any express direction : Betiune v Calcutt, 3 Gr. (548. 
 
 Prior Incumbrances. — A mortgagee paying off prior incumbrances, is 
 entitled to recover the amount paid, and interest on the princii)al ; at the rate 
 in his own mortgage, and on the interest and costs, at six jier cent. : MciMcr 
 v. Hertor, 8 C. L. J. 284 ; and see Teeter v. St. John, 10 Gr. 85. But a 
 tenant in common in sole {X)S8e88ion paying off incumbrances, is not entitled to 
 be allowed therefor, unless he submit to account for an occupation rent : Bird 
 V, Desourdi, 12 C. L. J. 203. 
 
MASTER S OFFICE. 
 
 178 
 
 Trustees are entitled to recover as aguiiiHt the lieneficiarieH the expense of Rule 67. 
 bailiffs, surveyors, and accountants, when neceHHarily employed, and also the Trustees 
 necessary legal exjjenBes of carrying the trust into effect : Wilkinmn v. Wilkin- entitled as 
 ,«on, 2 H'. & S. 237 ; McNamara v. Jouch, 2 Dick. 587 ; Htndermn v. Mclvcr, f *|y "xpeli^' 
 3 Mad. 275. bus" If Dai- 
 
 Trustees are also entitled to be allowctd the costs paid to the representatives ""^'*' °'''' 
 (if IV deceased trustee propt'rly incurred by the latter in reference to the trust ; 
 also the costs incuri*ed by them on being appointed to the trust of examining 
 into the state of tlie trust projiertv, the validity of the iwwer uniler which they 
 were apixiinted, and the costs paid of the donee of the power in making the 
 apiwiiitment : Harvei/ v. Otivir, 57 L. T. N. S. 239. 
 
 So also a trustee is entitled to have his costs out of the trust estate even 
 though by reason of subsequent events the trust becomes invalid : In Re Holdcn, 
 2UQ. B. D. 43. 
 
 But a trustee acting as solicitor for himself, or for himself and others as 
 tnistees, in any action in which he, or they, are jilaintiffs, is in general, only 
 
 entitled to costs and exi)en8e8 out of pocket, projierly incurred: Moiirr\. Frowd, 
 3 My. & Cr. 45, 50; Rohinxm v. Rett, 2 W. & t. Lead. Ca. Kq. 21- 
 CmdliK, Lau-tou v. El wen, 33 Chy. D. KiO ; 34 Ch. D. 075 ; 55 L. T. N. S. I(i7 
 
 But solici- 
 tor trustee 
 not enti- 
 tled to 
 cliavKefor 
 profesHion- 
 al services, 
 unless ex- 
 pressly 
 autliorized 
 by trust so 
 to do. 
 
 Or where 
 lie is del'eu- 
 dant. 
 
 Proflt costs 
 recover- 
 able 
 against 
 third par- 
 ties. 
 
 unless there be a special power to charge for professional services : Re Sherwood, 
 3 Beav. 338 ; Moore v. Frowd, supra ; Re Wi/cke, 11 Beav. 20!) ; but even then, 
 no charge can be allowed for doing professionally, any thing that he would 
 have been bound to do himself, if not a solicitor : Harhiu v Darbii, 28 lieav. 
 325; Re Chappie, Newton v. Chapnmn, 27 Ch. D. 584 ; 51 L. T. N. S. 748 ; and 
 what he cannot charge for professionally himself, ho cainiot recover for, if done 
 by a partner though not a trustee: Christophers v. White, 10 Beav. 523; 
 tWdrts V. Careii, 2 Beav. 128 ; luiless the business was done by the partner for 
 his own Iwnefit, and the trustee does not sliare therein : (.'lack v. Carlow, 7 Jur. 
 X. S. 441 ; !) W. R. 5(18 ; and where a solicitor trustee, who is one. of several 
 tnistees, and nets for them as defendants, he may recover profit costs against 
 the trust estate : ( 'radock v. Piper, 1 Mc. & (t. (Hi4 ; 17 Sim. 41 ; In Re Barber, 
 liimim V. Vinieomr, 34 Ch. D. 77 ; 55 L. T. N. S. 882 ; ])rovidefl the costs have 
 not been increased bv his so acting : Re Corsellis, Lawton v. Elwes, 33 Ch. D. 
 1«0 ; 34 Ch. 1 ). <J75 ; .55 L. T. N. S. 107 ; but see Le win 24i» ; Manson v. Ba illie, 2 
 Mawp 80. The i)rofit costs of professional services whicli cannot te recovered 
 iigajnst the c. </. t. or out of the trust estate may be recoverable by the trustee 
 against a third party : Colonial Trusts Co. v. Cameron, 24 Gr. 548 ; Meifihen v. 
 HmU, 25 (Jr. 004 ; Re Donaldson, 27 Ch. D. 544 ; 51 L. T. N. S. 022 : but see 
 ifc Vorsdlis, Lawton v. Elwes, 33 Ch. D. 100 ; 34 Ch. D. 075 ; 55 L. T. X. S. 
 1G7; and 82 Law Times Jour., 280 ; 23 C. L. J. 140. 
 
 A retaining fee paid by trustees to their solicitor in an administration suit, Ketaining 
 may be allowed imder certain circumstances: see Chisholm v. Barnard, 10 fee and 
 •ir. 47fl ; and see Hai/es v. Haiies, 21» (Jr. iK) ; but they are not entitled to any costs paid 
 allowance for gratuitous services of an agent : Chisholm v. Barnard, 10 Gr. 47'J. 1'^ *'^yf"_, 
 
 Costs paid by an executor, administrator, or trustee, to his solicitor, in respect f arreoover- 
 of business of the trust estate, may be allowed, but the Master should examine ^"'®' 
 the bill, and without strictly taxing it, should moderate it, by deducting such 
 charges, if any, as are imoroper : AlcCanjar v. McKinnon, 17 Gr. .525 ; Hayes v. 
 Hmiti, 2(J (Jr. 90 ; and wlien the costs have been paid out of the trust estate, 
 and hoiu'i fide received by the solicitor without notice of any breach of tiust 
 on his client's i)art, he cannot he made to refund the costs so received to the 
 estate, even though it shoiild turn out that the trustee has disentitled him.self 
 to get the costs out of the estate : Re Blundcll, Blundell v. Blundell, 58 L. T. 
 N. S. 933. 
 
 , A personal representative is not liable to pay costs incurred by a beneficiary 
 in reference to tlio estate and for its proteotion, before the grant of probate, or 
 letters of administration : Re Watson, 19 Q. B. D. 234 ; 57 L. T. N. S. 215. 
 
 Trustees' exjienses are a lien uiwn the trust estate, and have priority to the Trustees 
 costs of suit : Morison v. Morison, 7 D. M. & G. 214 ; 2 S. & G. 504 ; (Munt v. expenses 
 iaylor, 2 Ha. 413 ; Hurjhes v. Rees, 10 P. R. 301 ; unless the payments are are a lien 
 
ii 
 
 174 
 
 OFFICERS AND OFFICES. 
 
 9 
 
 ..-.).■ 
 
 '.'rk 
 
 /■■'i 
 
 Rule 67. 
 
 on triiHt 
 estate. 
 JuHt alluw 
 ancoH. 
 
 CotniieiiHa- 
 tioii to uxo- 
 ciitors ami 
 truHteos, 
 
 No nxed 
 rule as to 
 amount of 
 compensa- 
 tion. 
 
 Usually a 
 precentaKO 
 on receipts, 
 and pay- 
 ments. 
 
 But a lump 
 sum may 
 be allowed 
 
 A 8lidin)> 
 scale sug- 
 gested. 
 
 Allowance 
 of percent- 
 age on in- 
 vestments, 
 and rein- 
 vestments, 
 disap- 
 proved. 
 
 KM? 1*2^ ; 
 
 Legacies 
 given to 
 «xocutors 
 as compen- 
 sation. 
 
 not Htriutly authori/.i'd and tlu- estate in in.wftioient : R(ihini)ii. v. Killiii, 'M)l]vn\; 
 520 ; or tliey liavn miHcoiuhicted themselves : Rour v. Hhurrod, 11 W. I{, 351). 
 
 Just AUowancas. -Several of the matters which ma,y hn allowed under the 
 head of "just allowances" have already been discussed in the iireceding uotcii 
 to this liulv. 
 
 Allowaxcks to E.xkc'LTOuh, and Tkistkks.- Compensation for care, 
 pains, and trouble, may l)e allowed liy the Master to trustees tuider any flwl, 
 settlement, or will ; or to any other trustee, however the trust is createtl ; ami 
 to executors, and administrators ; and to any guardian ap])ointed by any 
 Court ; or to any testamentary guardian : R. H. C). c. 110, ss. ;W-40 : lie ('ilumi'f- 
 niinicrii of dolmurii, 22 (}r. 377 ; Jtc Ttironta llnrlmr Vimi.mixKiim(rn, 2S (Jr. 1!)5. 
 The Act is retrospective : Thumjinon v. Frrciiiuit, 1.5 (ir. .'W4 ; McMiUnn v, 
 McMi//an, 21 (ir. 3(i!t. Tiu' Surrogate Judge has also jxiwer to allow uoiriiwi. 
 sation to trustees under wills, and to executors, and •.'.;' ui in is tiators : R. H, 0. 
 c. 110, s. 41. Hut wheii an action is pending in the High Court in regard Ui 
 the administration of an estate, it is improper for the Surrogate Judge to int«'r- 
 fere by ordering tlie allowance of compensation to the executors, or tniNteen ; 
 McLennan v. Hcwanl, !) (ir. 27!* ; Cameron v. Jicthunc, 15 (ir. 4Sti. And the 
 Master is bound to exercise his own discretion as to the comiR-nsatioii to be 
 allowed, regardless of any order of a Surrogate .ludge made uiuler such circum- 
 stances : Bitjijar v. Dicknon, 15 (ir. 233. 
 
 No fixed rule can be laid down as to the amount of compensation pro|)ertii 
 be allowed, as it must necessarily deijend on the circumHtances of each cane ; 
 see Robinson v. I'vtt, 2 W. & T. L. C. Eq. 214. Usually the amount is fixed 
 by a percentage on the amount of money passing through the hands uf the 
 trustee, or executor. In some cases five per cent, has been allowed : Bdd v. 
 Thompson, 17 (ir. 154 ; McLennan v. IlevMrd, 9 tir. 178 ; Chisholm v. licniard, 
 10 Gr. 479 ; Jte Batt, Wrojlit v. White, !) P. 1{. 447 ; Be r/emin;/, 11 P. K. 272, 
 42G ; Archer v. /Severn, 13 Out. 31(t. But thi.s may in some cases be more, and 
 in some, less, than an adequate comi)ensation. In Torrance v. Chenv/t, 12 Gr. 
 407, four per cent, was allowed ; and in McMillan v. McMillan, 21 (ir. 381, 
 two and a-half per cent, was allowed. The Master may, instead of a 
 jiercentage, allow a lump sum, but only ujx)n proi)er evidence as to the services 
 rendered: Stinson v. Stinnon, 8 P. R. 5G0 ; Denison v. Iknimn, 17 (ir. 300. 
 In fixing compensation, it has been suggested that it would be projjer to adopt 
 a sliding scale, similar in i)rinci])le to tliat on which the ixjundage of Sheriffs is 
 fixed; see observations of Si)ragge, V.C. : Thompson v. Freeman, 15(ir. atji, 
 387. In that case, the estate amounted to nearly $300, (KX), and five per cent. 
 on the amounts disbursed, which included investments, and i-einvestments, 
 made in the course of fifteen ears, was considered excessive ; and on apjieal, 
 the allowance was reduced to live per cent, on investments of sums of S*)"©, and 
 three per cent, on investments over that amount. 
 
 But in a later case it was considered vicious in principle, to allow any com- 
 inission on investments, or reinvestments, on the gi-ound that it offered an 
 inducement to trustees to be constantly, and unnecessarily, calling in and 
 changing, the investments : Be Berkeley's Trusts, 8 P. R. 193.' No commission 
 should be allowed for merely receiving the trust estate r.ntil it has also been 
 duly accounted for : lb. 
 
 Where trust property consisting of land was exchanged, with the consent of 
 th<' cestui que trust, for stock in a land company, from which nothing had been 
 realized by way of income, and Iwth land and stock were said to be valueles.s 
 a i)erceutage on the nominal value of the stock was held an improper way of 
 fixing the trustees' comiiensation ; and a lump sum to cover their care and 
 trouble was allowed instead : Be Prittie, 13 P. R. 19. 
 
 A legacy given to a person appointed executor is prima facie intended as a 
 com])ensation, and if the legatee renounce, he is not entitled to the legacy : 
 Williams on Executors (8th Ed.), 1287 ; Be Appleton, Barber v. 7VW'//^ M L. T. 
 N. S. 90(5 ; and the fact that legacies are left to other executors of unequal 
 amount is not sufficient to destroy the presumption : lb. 
 
MASTER 8 OFFICE. 
 
 175 
 
 Wlit'ii II lojfivcy Ih given to executovH or triiHtmis iim a oon.^ifUrtation for tlit-ir Rule 57. 
 tri)iil)le, tlicy are not precludwl from claiming a further hu-.ii i.nder the statute, 
 if tlie li'jfiicy in inadequate: Oi'iiismi v. /Jiiiimin, 17 dr. 3(h); l/i(/i/iiii//t v. />f 
 VUliers, ij App. Can. 107, (>24 ; but see H. S. (). e. 110, n. 42: Williiuns v. 
 A'n//, KOiit. 534 ; 21 ('. L. .T. 23(1 ; Keitncili/ v. /'iiii/h; 27 (xr. 305. Sucii alegacy Do not 
 iirecliules any |ireNuni|ition tiiat the exticutor is entitled lieneticially to tiie abate, 
 uiulispo.sed of residue: Lmrlrns v. Cluikr, 24 (Jr. 14. .Siicli a legacy in the 
 event <if a deficiency of assists, do«'s not abat«! with other legacies, even though Hear Inter- 
 it exceed wliat the executor would be entitled to under the statute : Aiitlersun cHt. 
 V. Ihiitiiill, 15 (ir. 405; and such, legacies bear interest at the expirati(jn of a 
 veiir from the testator's death : AiuIcikihi v. IhiKi/n/l, jht Strong, V.C, on 
 appeal from report, 8th & 14th Dec. 1H70. Where the executor is also a resid- 
 uary lejfi'.tee, he is entitled to commission on tile receijjt, but not on the l>ay- 
 iiu'iit i)f the share of the residue to which he is beneficially entitled : Jini/.s' 
 Unme V. Lewk, 1!) C. L. .1. 13!) ; Itc Flrmiiii/, 11 P. II. 272, 42(i. 
 
 Where oil apneal from the Master the Court increased the allowance for 
 com)K'iiHation, the Court of ApjHnvl refused to interfere : Mc/tmutld v. havid- 
 .VI./I, (i Out. App. 320. 
 
 When the amount of a trustee's compensaticm is fixed by the trust deed, the When trust 
 Master cannot reduce the amount : llerati v. Mnffalt, 7 P. R. 438. nxeBcom- 
 
 iiensation 
 
 Executors are entitled to some compensation for moneys received by them Master 
 iM-iiileiUc lite but not so much as in other cases : Re J/oHsheiyer, 10 Ont. 521 ; cannot 
 Thnmimi, V. Fairbaini, 11 P. R. 333. a"°* '•^8«- 
 
 An allowance to trustees, or executors, for compensation is prior to the Executors 
 claims of creditors : Harrison v. Pdttersun, 11 Gr. 105, at p. 113; or of compensa- 
 ceslinqmtniti/ : The Life Asumiation uf Sro/laiid v. U'td/^xr, 24 Gr. 293 ; and a tiopisjjrior 
 trustee may retain it from time to time, out of moneys received, and is not cj^jftors 
 bound to w.vit until the expiration of his trust : I/eroti v. MojfatI, supra. 
 
 Misconduct in the management of the estate may, but does not necessarilv, Miacon- 
 disentitle an executor, or trustee, to compensation for what he has proiierly duct, liow 
 (lone; see Kciiiiedi/ v. Pini/le, 27 (ir. 305; Sierewrii/M v. Lei/s, 1 (hit. 375 ; 'ot It dis- 
 ilouldv. Burnt, 11 Gr. 523; (Mi/ Bank v. Maidsmi, 3 Chy. Ch., 334. But o'ltitles 
 commission cannot be allowed on moneys which were not actually received, to^coimieu- 
 but charged against the executor, or trustee, on the ground of wilful default : sation. 
 Bald V. Tluimpsim, 17 (ir. 1.54 ; and an allowance cannot be miule to an 
 executor, for unauthorized receipts of rents, and profits, of the real estate ; 
 hmjy V. Ituijij, 25 (ir. 542. 
 
 When one executor incura greater responsibility than another a larger pro- 
 portion of the compensation will be allotted to him : Re. Flemiiuj, 11 P. R. 272. 
 
 A trustee who properly employs an agent to collect rents is entitled to an 
 allowance for his own care and resjionsibility in addition to the sum paid to 
 the agent (in this case the trustee was allowed two and one half iH-rcent.): 
 R( Prittie, 13 P. R. 1!). 
 
 Where a testator's estate was worth ^1200,000 an expenditure of .S3,000 for a 
 burial plot and monument was allowed : Archer v. Serern, 13 Ont. 31(!. Trustees 
 
 Trustees who have invested the trust fund, at the instance of one of their eredit^m-o° 
 number, in a defective security, are nevertheless entitled to credit for the value finto for 
 of such security : Lark-in v. A rmstroiuj, 1) Gr. 390. defective 
 
 An allowance may be made to executors, for sums paid for the maintenance And for 
 and education of infant cestuis gtie tritstent out of the capital of the fund to sums paid 
 which they are entitled, where the income thereof is insufficient : Stewart v. for main- 
 Hetcher, IG (ir. 2.35. tenance- 
 
 CuiMH NOT Refkukkd TO Mastkk, cax.not liK Aij.owKi).— But the authority Claims not 
 to make "just allowances" does not authorize the Master to .allow claims referred 
 winch are not referred to him by the judgment to take an account of, however cannot be 
 reasonable they may appear to be. Th j Master may, however, rei)ort such a allowed. 
 claim as "a speci.al circumstance," and on the hearing on further directions 
 
170 
 
 OFFICERS AND 0FFICE8. 
 
 Rule 67. 
 
 Spoclnl 
 circuiii- 
 
 HtallCUH, 
 
 Mantur 
 may re- 
 port- 
 
 or (itliiTwiMc, ati a])|ilicati()n iiiav !"■ iimdc t<i tho 
 Fi.hlir V. (niiini, 2 Cliy. Cli. 255; Kdlar \. Tiuhi 
 V. FIclclin; sii/iiui. 
 
 Court for itH allowance • 
 , I Chy, Cli. 7HH ; Slamri 
 
 Special ClrcumstanoeB :— 
 
 \iit\vitlr;t;iii'liii;.^ t)ii-< /tn/c tlic Miintcr may rcfiiHf to rciiort uh HiH'ciiil 
 circuniHtanwjt, factH wliidi would \)i\ imiiuitfrial on ii licaritix on fiirtlitT direc- 
 tions, or wliicili would lead to I'vidcncc in relation to mattcrH not iicccNHarv t(i 
 the in(|uiry dircctfd liy the dccrcf : Urouii y. Anmimtl, I!) (Jr. 17L'. IJiit lif 
 may, at the rc(iu<'Ht of any iwirty, icport mit'cially iim to ..ny niatttrs which ho 
 may deem |)ro|K'r for tlin nnormation of tlie (Jonrt : Ho.iihtUfli v. I'mr/i, L'7(ir. 
 at \>. I'M ; and lie oufflit to rt-port any matter hcarini^ on the (|iit'.stiou of toHtit; 
 Siinii.iim V. Hiini)', 28 (Jr. at p. 7; Haiivn v. //iiinn, 2!t (Jr. !)(>. Aiirl the 
 Master may, at the refluent of a party, report Hin-cially an to niatterH not 
 particularly refernnl to lum, but which form the Huuject of charges of fraud in 
 the |)lfadings : //'. 
 
 In a mortgage suit the Master may reiKirt specially, as to the existtmce of a 
 claim of the wife of a mortgagor to dower in the surplus : /{our v. W'erl, 13 
 C. L.J. ;«(); 7 I'. R. 252. 
 
 The Master should not re|K)rt circumstances, showing an accoimting party to 
 have been guilty of wailful neglect, an<l defatdt, as a "special circinnstance," 
 but he should himself determitie whether ir not the |)artv is so liable, and if 
 so, find the .amount due on that footing : WalmsUi/ v. Hull, 2 Chy. Ch. 344. 
 
 Claims which are not referred to the Master to take an account of, cannot he 
 allowed by the Master, but may be reported as " special ciroumHtances " : .see 
 Fifldfr V. O'J/diri, etc., siijirii. 
 
 When money has been received by a trustee during his minority the M,a.ster 
 should rei)orttlie amount so received, notwithstanding the infancy : AV f/io/iw, 
 (••anus V. A/iplin, 31 Ch. D. 147 ; 54 L. T. N. S. 141. 
 
 General 
 powers of 
 Master, to 
 inquire as 
 to all mat- 
 ters relat- 
 ing to 
 accounts. 
 
 General Powers of Master :— 
 
 Riilr 57 jirovides that, gener.ally, in taking the accounts, tlm Master is to 
 inquire, adjudge, and report as to all matters relating thereto, as fully as if the 
 same had been specially referred to him. 
 
 The general powers here given, enable the Master to inquire as to. and to take 
 the accounts on the footing of, wilful default in accoimts of personalty, as well 
 as of realty, and hi- is not limited to the matters of in(juiry specially eniime- 
 lilted in this itiili' : rarjtiHtcr v. U'diid, 10 (ir. 3.54. But the Mastercannut 
 impure into the validity of the instrument upon which the plaintiff's judgment 
 was obtained ; Bickford v. Umiul. Jundiim Rji. Co., 1 S. C K. (S!l(i, see p. 725 rf 
 .sw. ; not even at the instance of parties atlded in his office ; Mcllnuyall v. 
 Luuhaii Paper Mills Co., 10 P. R. 247 ; 20 C. L. .T. 133; and see Kc, Minisie,'lD 
 C. L. J. 112 ; 117/(7/ V. Lcdi/drd, 10 P. R. 182 ; 20 C. L. J. 142 ; nor, when the 
 judgment awards larger relief than was claimed by the i)leadings, can the 
 Master restrict the inquiry as to damages or otherwise, to the relief claimed 
 by the pleadings: Smith v. (rV'/(/iV, 11 P. R. 24 ; neither can he o.xtendthe 
 inquiry under a general reference "to take r ^counts " to matters beyond the 
 8coi)e of the plesidings : liouiand v. Biinivll, 12 P. R. t)07. But tlie mere fact 
 that a plaintiff claiming to be a creditor has obtained a judgment directing thi- 
 taking of accounts, reserving further directions, was held not to preclude the 
 defendants from taking the objection that the jilaintiff is not in fact a ci-editur, 
 and consequently has no locus standi, and insisting on the hearing on fur- 
 ther directions that his action should, on that ground, be dismissed : Bank of 
 Toronto v. Braver Mutual, 28 Gr. 87. 
 
 But it will be seen that it is onlv matters relntinr/ to the accounts which are 
 referred to him to take, as to which he has these general powers he cannot 
 allow claims altogether outside of the accounts he is directed to take, and not 
 necessarily connected therewith. Such claims, though they cannot be allonw 
 by the Master, may, however, be reported by him as "sjiecial circumstances,' 
 
MABTKR 8 OFFICE. 
 
 177 
 
 uml tho Court, in itH iliKcretion, may on furtlicr (lin«tionH, or on Hi>ecial appli- Rultl 
 cation for tliiit |mr|M)Hi', allow them : Fielder v. lyilara, 2 Chy. Cii. 260 ; anil 08, 09. 
 
 ,«* W'l/c.V V. Lnli/iii-il, Hiiprii. 
 
 Under tlu'Hc f,'i'n)irivl ixiwcrH, in an adminiMtration Huit where a creditor miwlo 
 IV claim by virtue of a partnerHhip with the textator, it waH held that the part- 
 lU'rHliij) accounts might tM> taken in order to eHtahliuh the claim : h'line v htine, 
 It Chy. Cli. 137 ; and the MaMter nuiy iiupiire an to a Htated account Het up in stated ao- 
 thc ch'feiice, though no evidence woh given of it at the hearing : Kdinlxiro' Life oounta. 
 Asmiciatiiiii v. Allrn, '2H (Jr. 23(»; llohjatv \. ,S/iit/t, 28 Ch. I). Ill; h\it nemhle, 
 not ttH ti< usury, hh affecting th«' amount recovj-rable on a security : He« J'eim v. 
 iM-kwdiiil, 1 (Jr. rA7. 
 
 liH' Under a judgment or order of reference, witnesses 
 inav be examined before any Examiner of the Court. 
 Chy. 221, part. 
 
 Tim Mofftcr may <lirect witneHHeH to lie examiniKl before any other Master, or 
 Exainiiicr, of tiie Court, without the couHcnt of the parties : Jic Vasey, JtidUvU 
 V. (Mseii, 1 Chy. Ch. l!t«. 
 
 Tiio Master may also fj^rant a certificate for a commiHHion to issue on prteclpe 
 to take evidence out of tlie jurisdiction : see Rul<' oiK). 
 
 Tiie Master cannot grant a certificate for a (inmm\nn'um ex parte, McLennan 
 V. //f/y«, 'A Chy. Ch. 1!)3 ; t^xcept whore the refctrence is e.c parte. A commission 
 to take evidence is not granted as of course : Coeh v. Alle.ock, 21 1^. B. D. 17S ; 
 MillH v. Mills, 12 I*. R. 473 ; Lii/ht v. Antie.osti, m L. T. N. S. 25 ; Thoma.i v. 
 Sturey, 11 I'. K. 417; /'rice v. Jitiileif, (} P. R. 25(>; lierdan v. (Greenwood, 40 
 L. T. N. .S. ,')24, note a ; Vivian v. Mitchell, 13 C. L. .J. 15)8 ; Re Jioi/se, CrofUm. 
 wCro/tiiii, 20 Ch. D. 700 : 40 L. T. N. H. 522. As to proceedings under a com- 
 iniHsion ; see Jidles 5!)4-004. 
 
 Where an a]>plicatiun is made to the Master for a commission to cross- 
 examine a ]ilaintiff resident abroad, on an afKdavit filed by him in support 
 of his iiccount, the Master cannot projierly refuse it, so long as the plain- 
 tiff relies on the affidavit in supixirt of Jiis claim : Townend v. Hunter, 3 
 C. L. T. 310. 
 
 The Master's certificate for a commission should, mutatis mutandis, follow, an 
 nearly as may be, the fonn of order given in the Rales : see Form No. 138 ; and 
 see Ruk 593. 
 
 Master 
 
 may order 
 
 witnesses 
 
 to be ex- 
 
 auiluud 
 
 before 
 
 Bxaniiuer. 
 
 Foreign 
 commlfi- 
 slon not 
 
 ISBUtid of 
 
 course. 
 
 
 
 59. The Master may cause parties to be examined, and 
 to produce books, papers and writings, as he thinks fit, 
 and may determine what books, papers and writings are to 
 be produced, and when and how long they are to be left in 
 his ofiQce ; or in case he does not deem it necessary that 
 such books and papers or writings should be left or deposited 
 in his office, he may give directions for the inspection thereof, 
 by the parties requiring the same, at such time and in such 
 manner as he deems expedient. Chy. 0. 222. 
 
 Witnesses. — Anv party to an action is now eligible as a witness in his own 
 behalf : see R. H. O. c. 01, hs. 2-11. 
 
 In action by, or against, heirs, or personal representatives, or assigns, of a 
 deceased [htsou : Ih. s. 10 ; or by or againut a lunatic, or an inmate of a lunatic 
 asylum : 7/*, s. 11. The evidence of any opposite, or interested i)arty, must be 
 corroborated. As to the nature of the corroboration required, see Sugden v. 
 
 Master 
 may cause 
 parties to 
 be examin- 
 ed, and 
 may order 
 production 
 of docu- 
 ments. 
 
 WitnesBes 
 In M. O. 
 
 Corrobor- 
 ation when 
 necessary. 
 
 J.A. 
 
 12 
 
X78 
 
 OFFICERS AND OFFICES. 
 
 Rule 60. I'O'rd St. Leonards, IP. D. IM, 179; McDonald v. McKinnon, 26 Gr. 12; 
 Stoddart v. Stoddart, 39 U. C. g. B. 203 ; McKay v. McKay, 31 C. P. 1 ; Adam- 
 son V. Adamson, 28 Gr. 228; Brmim v. Cajmm, 24 Gr. 91 ; lie Jiohbiun, 23 Gr. 
 1«2 ; Ualkron v. J/ooJi, 28 Gr. 319 ; Re Ross, 29 Gr. 385 ; 18 C. L. J. 11; Re Lava 
 Laws V. Laws, 28 Gr. 382 ; Parker v. Parker, 32 C. P. 113 ; Birdsell v. Johnson, 
 24 Gr. 202 ; Fi' uley v. Pet^rtw, 2« C. P. 483 ; Rose v. Mickey, 3 Ont. App. 309: 
 Re Murray, 29 Gr. 443 ; 9 Ont. App. 3(i9 ; Burn v. ^i«?i, 20 C. L. J. 148. 
 
 Cross-ex- A witness may be cross-examined in the Master's office on the whole case, 
 ami nation The Master cannot proi^erly confine the cross-examination to the evidence 
 of wjtiies- griven in chief. But in some cases, it may be proper to exercise his discretion, 
 ^®'' as to the party to pay the fees of the examination' : t'randell v. Moun, (j U. C. 
 
 L. J. 143. 
 
 Not to be 
 recalled. 
 
 The Master should not allow a witness who has been examined, to be recalled 
 in order to supplement his testimony, except in such cases as the Court itself 
 would allow h'ni to be re-examined : see Patterson v. ticott, 1 Gr. 582. Aa to 
 subpoenaing' witnesses in t^e Master's office ; see Rule 578. 
 
 Deposi- Depositions in Another Action, or Books of Account, how far 
 
 tionsin Evioence. — As to how far evidence taken in another action, and books of 
 
 other account of third partie.s are receivable in evidence in the Master's office : see 
 
 actions. (J^^^y^ y jioUaml, 8 P. R. 219. 
 
 Production Production of Books and Papers.— When books are in constant use, and the 
 of docu- party required to prcduce them offers to allow them to be inspected in his 
 ments. counting house, the Master should not require them to be left in liis office, in 
 
 the absence of any sjiecial ground for so doing : Re Ross, 8 P. R. 8(!; 5 Ont. 
 
 App. 82 ; but the usual affidavit on prcxluction munt be filed, tliough the deposit 
 
 of the books in the Master's office be dispensed with : lb. ; Darling \. JJuding, 
 
 19 C. L. J. 329. 
 
 Remedy Pefaui.t. — Where default has been made in the production of documents, or 
 
 for default the attendance of a witness to be examined, an application may be made to 
 in produc- commit for contempt. The application should be made to a Judge, and not to 
 the Master in Chambers, or to any County Court Judge, or Local Master : 
 Kcefe V.Ward, 18 C. L. J. lG(j ; 2'C. L. T. 200. For form of certificate of 
 default : see Leggo's Forms, 2nd ed., Nos. G09, 9G0 : iSutherland v. Rogers, 
 2 Chy. Ch. 191. 
 
 tion. 
 
 Master 
 may adver- 
 tise for 
 creditor", 
 beirs, c . 
 next of kin, 
 etc. 
 
 Time to be 
 limited tor 
 coming in. 
 
 AdTts. for 
 creditors 
 where dis- 
 pensed 
 with. 
 
 Forms of 
 advertise- 
 ments. 
 
 60. The Master may cause advertisements for creditors 
 and if he thinks it necessary, but not otherwise, for 
 heirs or next of kin, or other unascertained persons, and 
 the representatives of such as are dead, to be published as 
 the circumstances of the case require ; and in such adver- 
 tisements he is to appoint a time within which such persons 
 are to come in and prove their claims, and within which 
 time, unless they so come in, they are to be excluded from 
 the benefit of the judgment or order. Chy. 0. 223. 
 
 The Master may disijenso with an advertisement for creditors in an adminis- 
 tration action, where the peraonal representative had, before action, duly 
 advertised under R. S. O. c. 110, s. 3(5 : Cuthbert v. Wharmby, W. N. 18«!t, 12; 
 but he should state in his report that he has done so, and the reason for so 
 doing. But mere lapse of time, even of twenty years, from the death of tho 
 deceased jierson, whose estate is being administered, is not sufficient to war- 
 rant the Master in dispensing with an advertisement for creditors, and the 
 Court has referred causes l)ack to the Master to advertise for creditors, where 
 the Master has omitted to do so, merely in consequence of the lajjse of time. 
 
 See further as to advertisement for creditors of a deceased person. Rule 970, 
 and for form of advertisements for creditors in an administration .action, see 
 
MASTER 8 OFFICE. 
 
 179 
 
 Form 36 ; and for heirs or next of kin, see Leggo's Forms, 2nd ed., No. 893 ; 
 a month at least should be allowed for creditors to file claims, three weeks was 
 considered too short a time : see Wood v. Wciyhtman, L. R. 13 Eq. 434. 
 
 Where the action has been constitiited as pnn'ided by Rule 320, heirs, and 
 other persons interested, whose presence as original parties is dispensed with 
 by that Rule, are nevertheless to be served with a copy of the judgment, as 
 provided by Rule 322, unlesa the Master dispenses with service. Where 
 !\ny of such jjersons cannot be found to be served with the judgment, the 
 Master may require an advertisement to be published as a condition of 
 disixjnsing with service on them. 
 
 Rule 61. 
 
 Time for 
 sending in 
 claims. 
 
 Persons in- 
 terested to 
 be served 
 with copy 
 of judg- 
 ment. 
 
 61* The Master is to proceed on the claims brought p^^^^n 
 in before bim pursuant to such advertisement, without claims 
 further notice, and may examine witnesses in relation '*'"^ 
 thereto at the time appointed in the advertisement, or 
 thereafter as he sees fit ;■ and he is to allow or disallow, 
 or adjourn the claims as to him seems just. Chy. O. 224. 
 
 In actions for the administration of a deceasetl person's estate, the mode of Mode of 
 proving claims of creditors is regulated by Rule i)7G et neq. proving 
 
 In other actions the creditor, or clainiiint, is required to file his claim with creditors. 
 an affidavit verifying it. If the claim be disputed, the claimant may be 
 required, at the instance of an opjxjsing party, to establish his claim by oral 
 evidence. '' 'hen the claim is evidenced by some written document, the pro- 
 duction of t.i<> document and proof of its due execution, if disjiuted, and the 
 claimant's affidavit of tht* amount due, is usually a sufficient jn-ivia facie case, 
 and the onus then "-ests with the i)arty op|K)Hing the claim to adduce evidence : 
 see Court v. Holland, 8 P. R. 213 ; an*^' 'e Rule 130 and notes. A claimant 
 may be cross-examined on his affidavit : ( 'ant v. Poyser, 3 Sm. & G, 309 ; 
 3 Jur. N. S. 38 ; 20 L. J. Ch, 353 ; and see Rule 577. 
 
 Parties residing out of the jurisdiction coming into the Master's office to 
 prove clahus, may be oixiered to give security for costs : Re Rcen, Urquhnrt v. 
 Toronto (Ifiwral Trusts Co., 21 C. L. J. 5!) ; and in the event of their failing to 
 substantiate their claims, may be ordered to i)ay costs occasioned thereby : 
 see Buk 1178. 
 
 In actions for tlie administration of a deceased jierson's estate, no party other Parties en- 
 than the jiersonal rejii' sentative, unless by leave of the Master, can apjiear on titled toat- 
 the claim of any jxTson, not a i)arty to the cause, against the estate of the ^J^t'of 
 deceased in refimct of a debt or liability. But the Master may direct any other claims. 
 party to the cause to ai)i)ear, in addition to, or in nlace of, the personal rei)re- 
 sentative, upon such terms as to costs as he shall think fit ; see Rule 334 : and 
 see RiUa 4!», 55, 1188. 
 
 In a creditor's action, the ])laintifT must jirove his claim in the Master's 
 office, even though he may have jiroved it at the trial, and any creditor may 
 dispute the claim of any other creditor: Field \. Titmuss, 1 Sim. N. S. 218; 
 Oxwmy. Dickinson, Cr. & Ph. 48, subject to Rule 334; and the Miister has 
 jwwer to afljudicate uyxin all questions arising between creditors inter sc : Mer- 
 chants Bunk V. Monteith, 10 P. R. 458. The mere fact that a jilaintiff claiming 
 to be a creditor has obtainetl a judgment directing the taking of accounts and 
 making of inquiries, does not preclude the defendants uj)on such reference 
 from taking the objection that the plaintiff is not a creditor, and has ctmse- 
 (luently no locus standi, and insisting on the hearing on further directicms that his 
 action should on t-'uvt ground be dismissed : Bank of Toronto v. Beaver Mutual, 
 28Gr. 87. 
 
 Creditors who have omitted to file their claims within the time limited, may Creditora 
 be allowed to come in and prove their claims, before rejxjrt, by leave of the '"iP"'\^ *"' 
 Master; and after reiwrt, on application in Chambers, so long as the fund*"*' ""*" 
 
 In credi- 
 tors' a«- 
 tions, 
 plain aff 
 umst prove 
 claim, and 
 any credi- 
 tor in ay dis- 
 pute any 
 otbercredi- 
 tor's claim. 
 
'When 
 allowed 
 
 180 OFFICERS AND OFFICES. 
 
 Kule 62. remains in Court : Laghley v. Hogg, 11 Ves. 602 ; Awjell v. Haddon, 1 Mad 
 has ex- ^^9 ; Be Metcalfe, W. N. 1879, 166; Cotton v. Vamittart, 9 C. L. J. 312; 
 pired. Andretvn v. Maulson, 1 Chy. Ch. 316. But a creditor coming in after a divi- 
 
 dend has been paid, is only entitled to prove against the residue of the fund 
 for a similar proportion of his debt, he is not permitted to disturb any prior 
 dividend : Gillexpie v. Alexandrr, 3 Russ. 130 ; Greig v. SomerviUe, 1 R. &, M 
 338 ; Todd v. Htudholme, 3 K. &. J. 324. 
 
 Creditor A creditor proving a claim, and objecting to the form of the decree, could, 
 
 objecting under the former i)ractice, only obtain relief by rehearing the cause : Mulhol- 
 
 dec?eT ° '""'^ ": ^^f""'"""' ^2 Cir. 413 ; Willis v. Willis, 20 Gr. 396. And a rietition of 
 
 might ** fffiditor to vary a decree was refused with costs : Mulholland v. HamiUan, 
 
 rehear. supra. 
 
 Creditor, A creditor whose claim is disallowed, may appeal at (mce on a certificate of 
 appeal by. disallowance, without waiting for a general rejKjrt : ifc C'layctt, Fordhnm v. 
 Clagctt, 20 Ch. D. 637 ; 46 L. T. N. S. 70. 
 
 Interest on Interest cannot be allowed on merchants" accounts unless a <lemand of 
 claims, interest under the Statute R. S. O., c. 40, s. 86, is proved : Jtujlis v. Wdtingion 
 Hotel Co., 29 C. P. 387. But in Micfiie v. Rcimokh, 24 U. C. Q. B. 303, 310, 
 Draixir, C.J., said : "It has been the practice for a very long time to leave 
 to the discretion of the jury to give interest where the payment of a just debt 
 has been withheld, and we can find no go(xl reason to depart from that 
 Interest on practice. " And in Upcnce v. Hector, lb. 277, 281, the same learned Judge 
 claims, at reniarked that "interest is in practice much more frequently allowed by our 
 flowed juries than English authorities would seem to warrant ; " and see R. S. 0., c. 40, 
 8. 85. As regards the rule followed by Courts of Equity in the allowance of 
 interest, Bacon, V.C., said, in. S^yrt^ri/t V. Ccnstaniinidi, 20W.R.823, "Itakethe 
 law of this Court to be perfectly clear and distinct, and to have prevailed for 
 centuries, that upon the wrongful withholding of a debt, the party who wrong- 
 fully withholds it is liabie to pay interest ujKDn that debt. A jury might always 
 have given it, I do not say it did, but it might always have given it at law. 
 But without reference to what a jury might do, this Court has given it in 
 numberless instances " : see lluducr v. Camptoir d' Kscompte de Paris, L. R. 3 
 P. C. 46<-). 
 
 After judgment has been recovered for a sum of money, payable "with 
 interest until ])aid," it is doubtful whether the rate reserved by the contract 
 can be recovered after judgment : see Hutton v. Federal Hank, 9 V. R. 568. In 
 Ryke)t v. St. John, 4 Ont. App. 213 ; 10 S. C. R. 278, it was held that the 
 contract became merged in tlu! judgment, and only the interest payable under 
 the judgment could be, recovered. But in Popple v. Sylvester, 22 Ch. D. 98 ; 
 47 L. T. N. S. 329, it was held that the difference between the rate payable by 
 the contract, and the rate recovered on the judgment, for the ix^rifxl between 
 the recovering of judgment and payment, might be recovered in a subsequent 
 action ; and see 19 C. L. J. 21 ; but see Ex p. Fevinps, 25 Ch. D. 338 ; 50 L. T. 
 N. S. 109. In England the Crown has a prerogative right to be paid in 
 priority to other creditors : In re West London Commercial Bank, 38 Ch. I), 364 ; 
 Attorney-General v. Leonard, 38 Ch. D. ()22 ; Bex v. Ward, 2 Ex. 301 n. ; but 
 see Clarkson v. Attorney-General, 15 Ont. ().32 ; 16 Ont. App. 202 ; and see 
 R. S. 0., c. 110, s. 32, which in effect rejx>al8 9 Hen. VIII. c. 18. 
 
 Master's 02. Under every order whereby the delivery of deeds or 
 settiemsnt execution of conveyances is directed, the Master is to give 
 ances!^*^ directions as to delivery of such deeds, and to settle con- 
 veyances where the parties differ, and to give directions as 
 to the parties to the conveyances, and as to the execution 
 ' thereof. Chy. 0. 226. 
 
 Additional In every judgment, or order, directing a sale, the Master to whom the action 
 powers of is referred may, without any special directions, settle all necessary convey- 
 Master as anc^g i,j c^gp the jiarties differ, or in case there be any parties interested in the 
 
 sale who are 
 further as to 
 deal wth que 
 brances ; and 
 oosts were gi\ 
 
 6». Wl 
 
 party is, u 
 the same 
 alBdavit. 
 numbered 
 to by the £ 
 thereto. ( 
 
 When a i)er.s 
 in rosuect of tli 
 of such dealing 
 
 A part^ may 
 brought m, in i 
 
 The deponen 
 party who is to 
 to detailed noti 
 Lord, Lord v. 
 are objected to, 
 »eo Bute 70 post 
 vouched: Aleac 
 
 «4. The 
 
 taking accoi 
 required to 
 taken as pn 
 therein con< 
 take such o 
 0. 228. 
 
 The Chy. Orr 
 Stat, 15 & 16 V 
 a voucher, upon 
 Ch. Ca. 249 ; bi 
 V. Cumming, 2 j 
 should notexce 
 
 Cing other it 
 ipts, or ot 
 occidentally de.s 
 eases, or when, 
 any other way. 
 M.&G. 90(i;a 
 cases, however, 
 general law, wit 
 •'>51. Books of t 
 dence for a neric 
 them, but had 
 tt7; and 8<!e ,S' 
 S. 791 ; Hardwi 
 
MASTER S OFFICE. 
 
 181 
 
 sale who are under any disability except coverture ; see Rule 107 ; and see Rules 
 further as to sales, Rides 91-115. Under this Rule the Master has power to 61, 62. 
 deal with questions arising on the conveyance as to the payment off oi incum- to settle- 
 brances ; and when a jiarty applied to the Court instead of to the Master, no ment of 
 costs were given : litammcrs v. O'Donohue, 29 Gr. G4. convey- 
 
 ances. 
 
 63* Where any account is to be taken, the accounting Form of 
 party is, unless the Master otherwise directs, to bring in to be"" ' 
 the same in the form of debtor and creditor, verified by !"„ b"^ac- 
 affidavit. The items on each side of the account are to be "^'^J"**"" 
 numbered consecutively, and the account is to be referred 
 to by the affidavit as an exhibit, and not to be annexed 
 thereto. Chy. 0. 227. 
 
 When a personal representative of a deceased person is required to account Personal 
 
 in respect of the dealings of the deceased, he is bound to make up the accounts rep. bound 
 
 of sucn dealings, from the books in his possession : Strathu v. Crooks, (5 Gr. 162. *° make up 
 ° accounts. 
 
 A party may be estopped by acquiescence from moving to set aside accounts Objection 
 brought in, in an improper form : Wealc v. Rice, C. P. Coo. 438. to ac- 
 
 ° counts, 
 
 The deponent may be cross-examined on an affidavit verifying accounts. A Cross- 
 party who is to lie cross-examined on an affidavit verifying accounts, is entitled examina- 
 to detailed notice of the points in respect to which he is to be examined : Re ^^on. 
 Lord, Lord v. Lord, L. R. 2 Eq. 005. A notice that all the items but one 
 are objected to, is insufficient: McArthur v. Dudgeon, L. R. 15 Eq. 102; and 
 aee Rule 70 post. Such cross-examination may take place before the account is 
 vouched : Meaeham v. Cooper, L. R. 16 Eq. 102. 
 
 «4. The Master, if he thinks fit, may direct that in Master 
 taking accoun ts, the books of account, in which the accounts bodks ot'^ 
 required to be taken have been kept, or any of them, be beTakenM 
 taken as 'prima facie evidence of the truth of the matters ^^"ISim'^ 
 therein contained, with liberty to the parties interested to 
 take such objection thereto as they may be advised. Ghv. 
 0. 228. 
 
 The Chy. Ord. 228, from which this Rvle was taken, was adapted from Imp. Sums of $8 
 Stat, 15 & 16 Vict. o. 86. s. 54. Every sum of $8 and under, is allowed without and under 
 a voucher, upon the oath of the accounting party : see Everard v. Warren, 2 allowed 
 Ch. Ca. 249 ; but this oath must be jiositive, and not on belief only : Robinson y^^^ 
 T. Cumming, 2 Atk. 410 ; and it would seem that the aggregate of such items """^ • 
 should not exceed $400 in amount : Bennett's M. O. 86. Greater latitude in 
 
 Cing other items is also allowed when the account is of long otanding : lb. 
 ipts, or other vouchers, must be produced, but when they are lost, or Vouchers 
 accidentally destroyed, secondary evidence will be let in : lb. ; and it is to such to bo pro> 
 cases, or when, for any other reason, it is impossible to vouch the account in duced. 
 any other way, that tliis Rule is intended to apply : Lodge v. Prichard, 3 D. 
 M. & (J. 90() ; and see Ewart v. Williams, 7 D. M. & G. 67. In partnership Books of 
 cases, however, the books of account of the firm are admissible by virtue of the accounts, 
 general law, without any sj^cial direction : Gethhig v. KeigMey, 9 Ch. D. 547, when ad - 
 551. Books of trustees of a will were allowed to be taken as prima facie evi- ''"88*"'8- 
 dence for a period of 21 years, as against a cestui que trust who had access to 
 them, but had not actually insi)ected them : Banks v. Cartwright, 15 W. R. 
 417 ; and see Sleignt v. Lawson, 3 K. & J. 292 ; Ogden v. Battamt, 1 Jur. N. 
 S. 791 ; Ilardwick v. Wright, 15 W. R., 953. 
 
•PH'I. , \, 
 
 182 
 
 OFFICERS AND OFFICES. 
 
 Bides 
 6B-«9l 
 
 No state 
 
 65. No state of fact, charges, or discharges are to be 
 ^j brought into the Master's office ; and where original deeds 
 factsTetc, or documcnts can be brought in, no copies are to be made 
 brought in. without Special direction. Guy. 0. 229. 
 
 Copies, ab- QQ* Where directed, copies, abstracts of, or extracts 
 etc., to* be from accounts, deeds, or other documents and pedigrees, 
 MM?er di*^ and coucise statements, are to be supplied ; and where so 
 rects. directed, copies are to be delivered as the Master may 
 direct. Chy. 0. 230. 
 
 The party having the conduct of the reference, is usually required to furnish 
 copies, abstracts, etc., which relate to the general inquiries, and the other 
 parties only such as relates exclusively to themselves ; see ante note to 
 Rule 45. 
 
 
 Parties 
 
 bound by 
 
 Master's 
 
 direction 
 
 without 
 
 warrant. 
 
 OT. A party directed by the Master to bring in an 
 account, or do any other act, is to be held bound to do the 
 same in pursuance of the direction of the Master, without 
 any warrant or written direction being served for that 
 purpose. Chy. 0. 231. 
 
 This Rule of course implies that the party directed to do the act, or his 
 solicitor, has actual notice of the direction, otherwise a warrant must be taken 
 out and served. 
 
 warrantto ON. Before proceeding to the hearing and determining 
 day*toa* of a reference, the Master may appoint a day in the mean- 
 whaSis ad- time, if he thinks fit, for the purpose of entering into the 
 wh^on"^ accounts and inquiries, with a view to ascertaining what 
 tested. is admitted and what is contested between the parties. 
 Chy. 0. 232. 
 
 Admissions before the Master should be entered in his Vxwk (see Kule 71), 
 and subscribed by the parties or their solicitors : Foster v. Allmm, 11 P. R. 233; 
 21 C. L. J. 418. Admissions made by a solicitor without the authority of 
 his client have been allowed to be withdrawn on the terms of the items 
 admitted being taken to be prima facie correct, and the onus being cast 
 on the party withdrawing the admission, showing that they are wrong ; 
 McBean v. McBean, 11 P. R. 429 ; 22 C. L. J. 348. 
 
 When day 
 not preTi- 
 ouBly ap- 
 pointed, 
 warrant 
 may issue 
 to ascer- 
 tain what 
 admitted. 
 
 6©. Where the Master has omitted to appoint a day for 
 the purposes mentioned in Kule 68, he may grant to the 
 party bringing in accounts a warrant to proceed on the 
 same, for the purposes aforesaid ; such warrant to be 
 underwritten, as loUows : " On leaving the accounts of, 
 etc., and take notice that you are required to admit the 
 same, or such parts thereof as you can properly admit." 
 Chy. 0. 233. 
 
 As to the costs occasioned by any party improperly refusing to admit fact* 
 see Ride 1189 : Mclntyre v. Canada Co., 18 Gr. 370. 
 
MASTER S OFFICE. 
 
 183 
 
 70. A party seeking to charge an accounting party 
 Levond what he has in his account admitted to have 
 received, is to give notice thereof to the accounting party, 
 stating so far as he is able, the amount so sought to be 
 charged, and the particulars thereof in a short and succinct 
 manner. Chy. 0. 237. 
 
 All accounting party who is intended to be cross-examined on his affidavit 
 verifying his accounts, is entitled to notice of the items on which he is to be 
 cwss-exaniined : Re Loid, Lord v. Lurd, L. R. 2 Eq. (505 ; Wiyrmsle.y\. Sturt, 22 
 Beav. 3!IH ; and it is not sufficient to inform him tnat all the items except one 
 are objected to, but the notice must speoiiy the points on which the cross- 
 examination is to proceed : Mc Arthur v. JMulgeon, L. R. 15 Eq. 102; and see 
 <Hoter V. Kllisim, 20 W. R. 408 ; and unless he be duly notified he may refuse 
 to be sworn : McA rthur v. Dudgeon, supra ; see Eng. Chy. Ord. 30, of 16th 
 jOct., 1852. 
 
 Rules 
 70-73. 
 
 Party seek- 
 ing to 
 charge ac- 
 counting 
 party must 
 give notice 
 of particu- 
 lars. 
 
 Account- 
 ing party 
 entitled to 
 notice of 
 items, be is 
 to be cross- 
 examined 
 ou. 
 
 71. The Master is to keep in his office a book, to beMaster^s^ 
 called the "Master's Book," in which, upon the bringing in to be kept, 
 of a judgment or order of reference, are to be entered, the 
 
 style of the cause, the name of the solicitor prosecuting the 
 reference, the date of the judgment or order being brought 
 in, and the proceedings then taken ; and the Master is also 
 to enter therein, from time to time, the proceedings taken 
 before him, and the directions which he gives in relation to 
 the prosecution of the reference, or otherwise. Chy. 0. 238. 
 
 In this Book referred to in this Hulc any admissions which are made during 
 the proceedings before the Master, should be entered and signed by the parties 
 or their solicitors making the same : see Rule 08 note. 
 
 72. Upon the application oi any person, the Master is Master to 
 to certify, as shortly as he conveniently can, the several ceeding^'^ 
 proceedings had in his office in any cause or matter, and ^^^ *'''^''®- 
 the dates thereof. Chy. 0. 239. 
 
 After a Master has made his report, he should not certify as to anv matters 
 before him in the course of the inquiry upon which he has made his report, 
 unless required by the Court so to do : Rosebatch v. Parry, 27 Gr. 193. 
 
 For forms of certificates, see Leggo's Forms 2nd ed., Nos. 669, 966. As to 
 apijealing from a certificate : see Itute 848. 
 
 751. In giving directions, and in regulating the manner Master to 
 of proceeding before him, the Master is to devise and adopt pie^s't%nT' 
 the simplest, most speedy, and least expensive method of S?lthod^of 
 prosecuting the reference, and every part thereof; and F°««j=j^*-. 
 with that view, to dispense with any proceedings ordinarily enoes. 
 taken, but which he conceives to be unnecessary and to 
 shorten the periods for taking any proceedings ; or to sub- 
 stitute a different course of proceedings for that ordinarily 
 taken. Chy. 0. 240. 
 
184 OFFICERS AND OFFICES. 
 
 Rules The Master is not authorized under this Rule to employ the services of 
 
 74-77. exjierts : Re Robertson, Robertson v. Robertson, 24 Gr. 555. But he may apixiint 
 
 experts to examine into matters referred to liim so as to enable them to give 
 
 evidence before him, on which to act ; and the costs of iwrsona so a])ix)iiit(xi 
 
 are taxable between party and party : McKay v. KeeJ'er, 12 P. R. 250. 
 
 The Master should allow amendments of accounts, when such aiiiciulments 
 would be allowed before judgment : Vourt v. Holland, 4 Ont. C88. 
 
 Appoint- 74. Where the Master directs parties not in attendance 
 
 Beverai "' before him to be notified to attend at some future day, or for 
 
 be^ndui different purposes at different future days it shall not be 
 
 wirranT ii^cessary to issue separate warrants, but the parties shall 
 
 be notified by one appointment, signed, by the Master, of 
 
 the proceedings to be taken, and of the times by him 
 
 appointed for the taking of the same. Chy. 0. 241. 
 
 The words "warrant" and "appointment," though ap|)arently used in this 
 and the two following Rtdcs as cfiatinct things, appear nevertheless to !» in 
 eflFect convertible terms : see Bennett's M. O., p. 6 et seq,, and see form of war- 
 rant : Bennett's M. O. App. i. 
 
 p«"es 75, Where parties are notified by appointment from the 
 
 Master not Master, of proceedings to be taken before him, no warrants 
 ed v^ith"" are to be issued as to such parties, in relation to the same 
 
 warrant. 
 
 Parties 
 notified, 
 liable for 
 default, as 
 if served 
 with war- 
 rant. 
 
 Master to 
 notify par- 
 ties when 
 hearing 
 concluded, 
 and to note 
 it in his 
 book. 
 
 Thereafter 
 no evi- 
 dence to be 
 given ex- 
 cept by 
 leave. 
 
 Master's 
 report and 
 •ertiflcate. 
 
 Parties 
 served 
 with judg- 
 ment, when 
 entitled to 
 notice. 
 
 proceedings. Chy. 0. 242. 
 
 76. Parti 3S making default upon such appointments, 
 are to be subject to the same consequences as if warrants 
 had been served upon them. Chy. 0. 243. 
 
 77. As soon as the hearing of any matter pending 
 before the Master is completed, he shall so inform the 
 parties to the reference then in attendance, and make a 
 note to that effect in his book ; and after such entry no further 
 evidence is to be received, or proceedings had, without the 
 special permission of the Master ; and the Master may 
 proceed to prepare his report or certificate without further 
 warrant, except the warrant to settle which is to be served 
 on the parties as the Master directs. Chy. 0. 247. 
 
 There is no difference between a reixjrt and a certificate of a Master, " though 
 we apply the term ' report ' to the more lengthened productions of a Master, 
 and the term ' certificate ' to his shorter statements. It is, I think, clear that 
 all his reports are certificates, and all his certificates are reports," pt'r Shadwdl, 
 V.C, Chmnelv. Martin, 4 Sim. 344. 
 
 Pr.rties served with the judgment under Rule 322, who do not give notice to 
 1 he plaintiff that they desire to attend the proceedings, need not be served 
 with a warrant to settle the reiwrt : Green v. Measures, W. N. 180(5, V22;Lcf^'- 
 Sturrock, W. N. 187C, 226. 
 
 It would seem that a warrant to settle a rejwrt formerly required fonr daj"* 
 service : see Bennett's M. O. 20 ; Beames' Ord. in Chy. 259. 
 
', . ?,;»J»t'fl 
 
 MASTER 8 OFFICE. 
 
 185 
 
 When the Master has closed the reference, an application to let in further Rule 77. 
 evidence may be made to him at a',.) time before the report is signed : Jie Applica- 
 Ritchu, Seweri/ v. Ritchie, 23 CJr. OB. After report, the application can only tion to 
 he mwle to the Court : O'Dotiofmc v. Ilcmhroff, !) 0. L. J. 312 : or a Judge : see open refer- 
 note to Rule. 848. But to warrant such application being iTanted, the ajjpli- ence. 
 cant must in general make such a case as wo\ild entitle hnn to a new trial : 
 Wmiddl V. Smi/th, 3 Chy. Ch. 412; and see Paitermn v. Scott, 1 (ir. r)82 ; 
 SaMnder.i v. Saiindcm, 45 L. T. N. S. (528 ; Vanadice v. Vurrie, 1» (ir. 108 ; 
 Mason V. Se.mi/, 12 Gr. 143 ; Honking v. Terri/, 8 Jur. N. S. !)77. 
 
 A Master is not functus nfiicio \u\i\\ he has made his rejKirt (m all the matters Master not 
 referred to him : Rue v. (t'edden, 3 Chy. Ch. 404; but after he has made his. '«"«'<" <#- 
 reiKtrt ho should not certify as to any matters l)efore him in the course of tlie '!'" *'!' 1}" 
 inquiry upon which he has mafle his rejiort, unless required by the Court so ygp^rieA 
 to do ; Riisp.lifitch v. Parr;/, 27 Gr. 193 ; the same rule applies to taxing ofticers : 
 Lnnglry v. liumonlin, 10 P. R. 444. 
 
 Masters' Reports, are either General, Special, or Separate. 
 
 A GEVKRAiy Rki'OKT, is that which comi)rises the conclusion which the Master General re- 
 has come to, upon all the matters referred to him by the judgment, or order "O''- 
 under which he has proceeded. 
 
 A Separate Report is that which embraces one or more separate matters Separate 
 of the reference, and the conclusion the Master has come to thereon ; and is report, 
 limited thereto, apart from the other matters referred. A report on sale is a 
 familiar illustration of a separate rejwrt. 
 
 A Special Report, is a report of special circumstances found by the Special 
 Master, as a guide to the Court for some further direction upon the facts so report, 
 reported. 
 
 Special reports on matters which the Master has power himself to adjudicate 
 upan, and dispose of, are not to be made, unless specially directed by the 
 judgment, or order, of reference : see Bennett's M. O. 18, 19 ; yVaiiimey v. 
 Bull, 2 Chy. Ch. 344. 
 
 A report should not be dated before the costs included therein have been 
 revised, when revision is necessary : yVaddell v. McColl, 14 Gr. 211. 
 
 A report, like a judgment, should state results only, and should not set Keport, 
 
 forth the evidence, arguments, or reasons on which the conclusions are arrived what it 
 
 »t : Sovereign v. •'Sovereign, 15 Gr. 559. should 
 
 state. 
 
 When the Master is specially directed to state his reasons, they should be 
 
 itated briefly : AfcCargdr v. McKinnon, 15 Gr. 361. All unnecessary prolixity 
 
 in reports is to be avoided : <S'. C, 17 Gr. 625. 
 
 The report should not go beyond the order, or judgment, of reference, or the Should nofc 
 Court will not respect it ; see Beames' Orders 23 ; and see Clmister v. McLean, 8° beyond 
 10 Gr. 576. And matters should not be rejwrted specially, or as special refMence 
 circumstances, which the Master has himself power to adjudicate upon : e.g. ; ^or report 
 whether or not an accoimting party is chargeable on the footing of wilful specially 
 default, etc. : Walmdey v. Bntl, 2 Chy. Ch., 344 ; whether or not a particular unneces- 
 debt is, or is not, an asset of an estate being administered : Clouster v. McLean, "arily. 
 lOGr. atp. 578. 
 
 But the Master should state in his report such matters as may be necessary But should 
 for the information of the Court, on further directions, or to enable it v< dis- report 
 pose of the question of costs : e.g., the priorities of creditors : Lavih v. J?i*„„ta^_„ 
 (yffeM, 13 Gr. 179 ; and of the legatees : Clouster v. McLean, 10 (Jr. 576, should to dispose 
 be stated ; and when a separate solicitor is appointed to represent a class, of costs, 
 which is prim/i. facir. sufficiently rei)re8ented by che plaintiff, or some other 
 party to the acticm, the reason for the appointment should be stated : Oforham 
 T. Oorham, 17 Gr. 386 : and where an advertisement for creditors has been dis- 
 pensed with, the fact and the reason for it should be stated in the report : see 
 Ridetifi note. When the Master dispensed with service of judgment on parties 
 required to be served therewith by Eiile 322, he was formerly required to state 
 
 'ftS' 
 
 
 ■I 
 
186 
 
 OFFICERS AND OFFICES. 
 
 Roles his reasons therefor, in his rejxirt : see Chy. Ord. 587, Holmested's Rules and 
 
 78-80. Orders 349, but that ijrovision is not embodied in these Rules. 
 
 Sums charged ajjainst an accounting party, on the footing of wilful default, 
 should be distingiiished in the reixjrt from sums actually received : Muodie v. 
 Leslie, 12 Gr. 537. 
 
 Final re- The Master should not make a final report in an action until he is in a posi- 
 port, when tion to deal with all the matters referred to him : e.g., it is iniprojier to make 
 to be made. ^ j^j,^j report in an action to wind up a partnership, finding a balance due 
 from one partner to another, until all the assets are realised : Smith v. < 'rooks, 
 3 Gr. 321. But when the Master is not able to make a final report, he may, 
 whon necessary, make a separate reiiort as to certain of the matters referre<l to 
 him, and which he is able to rejKjrt on. 
 
 When a Master dies or becomes incapacitated pending the reference, an 
 order may l)e obtained referring the cause to another Master with jniwer to 
 adopt the i)rcx3eedings already taken : .Uiun, 4 Jur. 868. 
 
 For forms of reijorts on sales : see Form 44 ; and of rejiorts in administration 
 actions. Form 42. 
 
 Pointsiu- 78. Parties are to raise before the Master, in respect of 
 be'ralsed any matters presented in his office, for his decision, all 
 to be taken points which may afterwards be raised upon appeal. Chy. 
 
 before () 04Q 
 
 Master. ^' ^^^' 
 
 Chy. Ord. 248, from which this Rule is taken, went on to provide that in case 
 an apfK-al was allowed on any ground not distinctly taken Iwfore the Master, 
 the Court might order the ap(>ellant to pay the costs of the ai)]ieal ; but this 
 provision has not been embodied in these Rules. Under the Ciiy. Ord. 248, it 
 would seem that the Court might, in its discretion, entertain a|i])«als on 
 grounds not distinctly taken before the Master, but in such cases might order 
 the api^ellant, even if successful, to pay the costs of the ajipcal. But under 
 this Rule it would apjwar that the Cfourt has no longer jiower to entertain 
 apiieals on any grounds not taken before the Master. 
 
 In order to avoid any question as to whether or not any }X)int intended to be 
 raised on appeal, has been taken before the Master, it is safer to deliver the 
 objection in writing, or to have it noted in the Master's Book ; but this is not 
 absolutely necessary : see Rule 82. 
 
 Or Court Although the Court might formerly allow an appeal on a ground not taken 
 may refuse before the Master, it might refuse so to do. Thus, the Court refused to allow 
 to enter- the Statute of Limitations to be raised on apjwal, it not having been raised 
 tain It. before the Master : Jirigham v. Smith, 18 Gr. 224 ; and see Clmuiter v. McLean, 
 10 Gr. 576. 
 
 See further as to appeals from reports : Rule 82 and notes. 
 
 A^counj;8, ^o. jn the Master's report no part of any account, 
 affidavits, charge, aflSdavit, deposition, examination, or answer, 
 bl'^set'out*" brought in or used in the Master's office, is to be stated 
 in report, q^ rccitcd, but instead thereof the same may be referred 
 to by date or otherwise, so as to inform the Court as to 
 the paper or document so brought in or used. Chy. 0. 249. 
 
 As to form of reports, see note to Rule 77. 
 
 Schedule sO« Keports affecting money in Court, or to be paid into 
 tachedas Court, are to set forth in figures in a schedule a brief 
 
MASTER S OFFICE. 
 
 187 
 
 summary of the sums found by the report, and which may Rules 
 be paid or payable into or out of Court, and the funds or ?o mMeys 
 shares to which the sums of money are respectively cLarge- in court, 
 able. Cby. 0.250. " *'''"'^'''" 
 
 or payable 
 into court. 
 
 81. As soon as the Master's report or certificate isRe^wtto 
 prepared, it is to be delivered out to the party prosecuting t<f party 
 the reference, or in case he declines to take the same, }n|re'fer- 
 then, in the discretion of the Master, to any other party ^°^,j^c*',j,*e 
 applying therefor; and a common attendance is to beit.theuto 
 allowed to the party taking the same. Chy. 0. 251. party. 
 
 82. No written objections or exceptions need be taken without 
 before tii'^ Master previously to an appeal. See Chy. 0. exceptions 
 
 j)rQ before 
 
 ^00. Master. 
 
 Appeal, When Necessary. —Ordinarily, where the objection to the reiKirt is Appeal 
 not manifest on its face, an api)eal must be brought, unless the re{K)rt be a ^^ Ig™™^"* 
 nullity, as, e.r/., where made without notice in vacation : Fuller v. McLean, "® '' 
 8 P. It, 54!) ; or under an invalid order : (iueen v. kmith, 7 P. R. 429 ; Brotmi v. 
 Mlanl, G P. R. 113 ; where the report goes beyond the judgment, or oi-der, 
 of reference, the rejx)rt as to such matters will "not be respected " by the 
 Court ; Beames' Ord. 23, and therefore no ap[)eal as to such matters would 
 seem necessary ; an Incumbrancer claiming priority to the plaintiff, who is 
 made a party as a subsequent incumbrancer, may either move to set aside the 
 order making him a party (which apjiears to be the preferable practice), or 
 api)eal from the reiwrt on the question of priority : MclJonald v. Itodyer, 9 Gr, 
 75, and see Jfonttjomcri/ v. Hhm'tis, 3 Chy. Oh. 09. 
 
 Mere clerical errors in a reiwrt may be corrected, even after confirmation, 
 without apiieal by order in Chambers : see Rule 848 note ; and when the Master 
 who has made the report has also jurisdiction in Chambere, it would api>ear 
 to be comijetent for him to make the order ; but he has no jurisdiction to make 
 any material alteration or amendment of the reixirt, not being a clerical ern)r ; 
 that can only be proiwrly done on appeal : see Skcad v. Holland, 9 C. L. T. 50. 
 
 Time For Appealing.— An api)eal from any reixjrt, ruling, or other deter- Time for 
 mination, if any Maater, must now be brought on for argument, before a appealing. 
 Judge m Court, within one month from the date of such reixjrt, ruling, or 
 other determination : Rule 849, — or within such further time as a Judge may 
 think projjer ; the long vacation is excluded from the computation of the month : 
 Me 484, but not the Christmas vacation. An appeal from a ruling of a 
 Master, must be brought within the same time as is allowed for apiiealing 
 from a reiwrt : Mitchell v. Mitc/iell, 22 Gr. 23. 
 
 In Markle v. Rnst,, 13 P. R. 135, it was held under the Consolidated Rules 
 tliere couldbe no appeal from a ruliiij/ of a Master because the pi-ovision of 
 Chy, Ord. 642, had not been included in the Consolidated Rules ; and that an 
 appeal, now only his from a reiwrt, bv which was ptissibly meant a general 
 report. It is however to be observed that unless a new meaning is to be given 
 tothe words "re{)ort" and " certificate " from that which they iwssessed under 
 the former practice, there is nothing in the Consolidated Rules which prevents 
 *? "PJ!?*' ^^^V^ * Master ruling, because, as we liave already seen, a certificate 
 «' « Master is a rejiort : see Rule 77 note ; and a Master s certificate of his 
 ™ing 18 therefor a "separate rept)rt," and as such it would seem to be appeal- 
 *ole m the same way as any other report. 
 
 
188 
 
 OFFICERS AND OFFICES. 
 
 Rule 82. Notice of Appeal and Bettln; Down for Argument.— 8ev(m dear days 
 Notiuo of notieo of theapiH-al iiiUHt Iw pivcn to tlu- oppoHite partY : Ji>ile 84!) ; /Ao/c,*' 
 appeal, Ilaj/es, 8 P. R. .54(> ; and mien notic«> nnist )h' 
 
 and HottinK nioiith from tlie date of the rei^rt : Itiih: 4, 84i) 
 down for tjj^ aiitieal rnust Iw wet down for aroruuient on 1 
 
 argument, rgturliahle : Bnkm) 
 
 .luv |.f*a uj . -•..III. iT-»./ , iiHift H \^ 
 
 returnable witliin one calendar 
 
 ; R. S. O. c. 1, H. 8, HH. 15 ; and 
 
 the day on which the notice i 
 
 M 
 
 Boport 
 mtiRt 1)0 
 first filed. 
 
 Notice of 
 appeal 
 should flet 
 out 
 grounds. 
 
 Who enti- 
 tled to ap- 
 lieal. 
 
 And from 
 Master's 
 ruling as to 
 evidence ; 
 or princi- 
 ple on 
 which ac- 
 counts to 
 be taken ; 
 or 9n dis- 
 allowance 
 of a claim. 
 Appeals 
 from tax- 
 ing officers. 
 
 No appeal 
 from an 
 award. 
 
 Such ai>|KMvlH are to be heard on Tuesday : wee Rule 211 ; but the oiR-rationnf 
 that Kulc iH at present Husj)ended, and the present practice is to set down such 
 apiieals in the Chancery Division for a Thursthis and in tlie otiier Division 
 for either Tuesday or 1* riday. 
 
 Where an apical was set down for a dies vnii, but was placed by tlie Clerk in 
 the paiMT for the next regular sitting of the Court, it was held not to lie 
 irregularly set d(jwn : MrCaw v. Pimtini, 11 P. R. 328. AiJjieals have hitherto 
 usually been brought l)eft)re a Ju(lge of the Division in which the action wa» 
 ixniding, but any Judge of the Higli Court has jurisdiction to entertain such 
 apiieals : Laidlaw v. Miller, 11 P. R. 335. 
 
 Before notice of an apjieal is given the report must be filed : Hayes v. Haytn, 
 8 P. R. 54(i. 
 
 The notice of api)t!al should set out neriutiiH. the grounds uiwn which the 
 appeal is brought, and should include all the grounds of objection intended to 
 iMi urged : Rule 84!> ; objections cannot be raised on an appeal from a further 
 report, made in pursuance of an order to the Master to review his rejKjrt, 
 which might have been taken, but were not, on the appeal from the original 
 rejK)rt : Rnnti v. I'errault, 13 (ir. 20fi. 
 
 Wbo Entitled to Appeal. — Any jierson having a substantial interest in the 
 question involved in an ai)l)eal. is entitled to a))]>eal ; but persons havinfrno 
 interest in the subject of a]jpeal, cannot api>oal, even though the report be 
 erroneous ; Tlumipson v. Luke, 10 Gr. 281 ; McVargar v. McKinuon. 17 6r. 525 ; 
 neither will an apiieal lie from a Master's ruling, or direction, by a party who 
 has com])lied witti it, even thoijgh it be to escape commitment fordi.sobedience: 
 Mitchell V. Mitchell, 22 Gr. at p. 24 ; neither will an a])i)eal lie, where the amount 
 involved is of trifling amount, c. {/., where not more than $10 was in question, an 
 apiieal was dismissed : McQueen v. McQueen, 2 Chy. Ch. 344. 
 
 An appeal may also be brought, before the Master has made his 
 report, from his ruling as to the lidmissibility of evidence : Mclkmhl 
 V. \Vright, 12 Gr. 552 ; or upon his finding as to the principle upon 
 which an account should be taken : see Court v. Holland, 29 Gr. 19 ; or by a 
 creditor from the Master's_ ruling, disallowing his claim : Wood v. Brett, 9 Gr. 
 4.52 ; and he need not wait for a general report, but may at once obtain a 
 certificate of disallowance and ap])eal therefrom : Re Vlagett, Fordham v. 
 Cl-agett, 20 Ch. D. 037 ; 46 L. T. N. S. 70. 
 
 Appeals might formerly be brought from a Master's certificate of taxation : 
 Grahamew. Anderson, 2 Chy. Ch. 303 ; Re Ponton, 15 Gr. 365 ; from a Master's 
 , ruling a to any [mint, raised on a taxation of costs : titinson v. Martin, 2 Chy. 
 Ch. 86 ; under the fonner Judicature Rules there was no api>eal to a Judge direct 
 from a local officer's taxation, but his taxation must have been first revised 
 by one of the Taxing Officers in Toronto, from whom an appeal lay to 
 a Judge : Crowe v. Steeper, 2 C. L. T. 88 ; McHannon v. Clarke, 19 C. L. 
 J. 236; Oage\. Canada Publishing Co., 19 C. L. J. 175; 3 C. L. T. 267; 
 Torrance v. Torrance, 9 P. R. 271 ; but see contra. Grant v. Grant, 10 P. R. 
 40. Under these Rules an appeal lies to a Judge in Chambers; see 
 Rideji 196, 8.51-3 ; and there may be also an appeal from the Taxing Officers 
 in Toronto to the Master in Chambers, or Master in Ordinary : see Side 854. 
 
 Where a cause had been referred to a Master as an arbitrator, by » 
 consent decree, which provided that "either party should be at liberty to 
 appeal against the award in the same manner and to the same ext«nt that 
 a reiwrt may be appealed from," it was held nevertheless, that an appeal 
 from the award could not be entertained : Hums v. Chamberlin, 25 Gr. 
 148 : but see R. S. O. c. 53, ss. 4, 7. Where the order directing the reference 
 
MA8TEU H OFFICE. 
 
 was made without jurindictit>n, the Cdiirt refuHed to pntertuin any ai>i>«al from 
 a report nuule thereunder: <^ueen v. Smith, 7 P. K. 42!> ; Jirmfti v. IhillurU, 
 <i P. K. 113. 
 
 Wlicn on an antKtal from a Master'H rejwrt a reference back to review the 
 reiKjrt w orderea, the ai)i)ellant cannot aiJ])eal from the further re|>ort aH to 
 niatUTu diHiK)sed of by the first rei)ort, and not objected to on the firttt appeal : 
 Ihmw I'armilt, 13 (ir. 2()(). 
 
 Hearing of Appeal.— Apjieals from the MaHter'n ruliiiff as to the regularity 
 of proceedings in hi» office, in point of fonn, will not \w, reiuUly allowed, even 
 tliou(fii the Court be of ()pinif)n that he might luvve properly taken an op|M)Hite 
 view : ticiillhorpe v. liurn, 12 Ur. 427. 
 
 On matters of fact decided by the Master who has had tlie witnesHes before 
 him, the .Fudge will differ from the Master with great hesitation, and only 
 when it is nmnifeKt that lie ha« fallen into error : (.(ildirell r. lltill, !) ({r. at p. 
 115; and the Judge will not in general interfere with the decision of the 
 Master as to the weight of evidence, and as to the relative credibility of 
 witnesses whose t^vidence has been taken before liim, rhui iva: : hay v. Jirinmi, 
 18 Gr, (Wl ; WmldeU r. Smi/th, 3Cliy. Ch. 412 ; but see McArthiir v. I'nttif, 2(» 
 Gr. 500. But if it can be shown, that there is not only a balance of direct 
 testimony, b>it also corroborative circumstances ]iointing strongly against the 
 Master's conchision, the Judge on appeal may review the evidence, and 
 reverse his finding on a question of fact: Chard v. Mei/iTu, Til (xr. 358; Arm- 
 stninij V. (>(ii/<', 25 (ir. 1 ; Mnrrison v. Riihinsun, 1!) (ir. 480. When the Master 
 determines the question without seeing the witnesses, the Judge will, in such a 
 case, be less trammelled by the Master's finding, and will disjM)se of the 
 question upon liis own judgment as to the weight of evidence : Fawcett v. 
 timvi-U, Tt (Jr. 445. 
 
 Order on Appeal. — The order on appeal should always recite the grounds of 
 the apix^al : hnwne.y v. Ruaf, (J P. R. 81t. 
 
 Where the reiwrt is varied it would seem that it is not the jjrojjer practice to 
 make any actual alteration in tlie original: Fo-f. v. liearliliick, 45 L. T. N. S. 
 469; 17 Ch. D. 421) ; 40 L. T. N. S. 145 ; nor where the alteration is simple, 
 need it be referred back t<j the Master to alter : Teeter v. St. John, 10 Gr. 85, 
 the order on the ap{>eal 8i)ecifying the alteration made, being sufficient : lb. 
 
 Where the reiwrt is referred back, and it is not intended that further 
 evidence should be received, the order nuist contain a direction to that effect : 
 Morkyv. Mutthewn, 12 Gr. 4.53; 3C. L. J. 21. 
 
 Reference Back. — When a report is referred back, the Master is at liberty, 
 as of course, to receive further evidence, imless the Judge otherwise orders, or 
 the reference back is expresssd to be for a puri)ose on which further evidence 
 could not be material : Morlei/ v. Matthews, 12 Gr. 453. Where the reference 
 back is to ascertain a particular fact, the Master cannot oi)en other matters in 
 hisrejwrt not objected toon apix;al : Williams v. Haiin, 10 Gr. 553. Nor on a 
 reference back can the Master entertain a claim not i)reviously made before 
 him, unless specially ordered so to do : Romanes v. Herns, 22 Gr. 4G9. 
 
 C0Bt8.-See Rule 1170, and notes. 
 
 S8. Any party affected by a report may file the same, 
 or a duplicate thereof, and the filing of a duplicate shall 
 have the same effect as the fiUng of the report. Chy. 0. 
 
 The report, or certificate, of a Master, or Taxing officers, must be filtnl before 
 an appeal can be had therefrom : Hayes v. Hayes, 8 P. R. 540 ; Langlry v. 
 limnoubh, 10 P. R. 444 ; or before any process can issue thereon : JeUett v. 
 Anderson, 8 P. R. 387. And where it appoints a time for the payment of 
 money it should be filed before the day of payment : Mills v. I>u-on, 2 Chy. 
 lAoS; and be confirmed where necessary: Mountain v. Pwter, 1 Chy. Ch. 
 
 iU7. 
 
 189 
 
 Rule 88. 
 
 Matters 
 not objent- 
 ud to on 
 first 
 appeal. 
 Hearing of 
 appeal. 
 
 Appeals 
 on (jues- 
 tions of 
 fact; credi- 
 l)ility I or 
 weiftht of 
 evidence. 
 
 Grounds of 
 appeal to 
 be recited 
 in order. 
 
 Variation 
 of report. 
 
 Reference 
 back, fur- 
 ther evi- 
 dence on 
 when re- 
 ceivable. 
 
 Costs of 
 Appeal. 
 
 Any party 
 may ttle 
 report, or 
 duplicate. 
 
 Beport 
 must be 
 filed before 
 appeal, and 
 before it 
 can be en- 
 forced. 
 
 '•' "^1 
 
lr:'.?^» 
 
 190 OFFICERS AND OFFICES. 
 
 Bnlea Ah to (U-lav in filing a (iiinlicate reiwrt by a party int«>nding to appoal ; aw 
 
 M-8S. CaUs,: V. liuriiham, )i P. K. 201. 
 
 A i)arty cannot, by neglecting to file a reiwrt, extend the time ffiruilrginff 
 on the ai>|)eal to be hearrl beyond a calendar month from its date : Hee mt 
 849. 
 
 Reports S4. In CRfles of references to Local Masters the report 
 wheretobG^j^^jj ^^ ^j^^ .^ ^j^^ o?[iCQ of such Local Master, but may, 
 
 at the request of any party to the proceedings, after having 
 been so filed, be forwarded to the office of the Clerk of 
 Records and Writs. In all other cases the report shall 
 be filed in the proper office in Toronto of the Division to 
 which the action or proceeding is assigned. See J. A. Eule 
 599. 
 
 Reason for 
 Rule. 
 
 Payment ^5. Where the Master is directed to appoint money to 
 
 intobank, be paid at some time and place, he is to appoint the same 
 
 dTrected m to be paid into some Bank at its head office, or at some 
 
 report. brauch or agency office of such Bank, to the joint credit of 
 
 the party to whom the same is made payable, and of the 
 
 Accountant ; the party to whom the same is made payable 
 
 to name the Bank into which he desires the same to be 
 
 paid, and the Master to name the place for such payment. 
 
 Chy. 0. 255. 
 
 This Rule does not relate to the payment of money into Court (as to that, see 
 Rule 1(!4, ei eaj. ), but is intended to provide for the payment of money in cases 
 where the payee is required to do somt act, as a condition of his receiving the 
 money ; e.g., in specific ijerformance actions where the vendor is required to 
 execute a conveyance ; ov in mortgage actions, where the mortgagee, or incum- 
 brancers, are required to release and discharge their incumbrances, etc. 
 
 How paid Money paid into a bank under this Rule, ia paid out on a ^oint cheque of the 
 
 out. officer of tne Court and of the party to whose credit it is jwid in. The cheque 
 
 will be signed by the officer either upon an order, obtained for that puiyose, 
 
 being produced, or without order, \\\)on filing the written consent of the 
 
 solicitor of the party paying the money in. 
 
 If the money bepuid into the solo credit of the party entitled under JJu/f 
 86, he may draw it ou'. at his iileasure. 
 
 Where the party paying money in, refuses to consent to its payment out 
 to the party entitled, the latter may move in Chambers for an order to the 
 officer to sign the cheque : /icniurd v. Alley, 2 (!hy. Ch. 91 ; Weeks v. Stourtoii, 
 11 Jur. N. S. 278. Although the refusal to consent appears to have been 
 without reason, the applicant in lierimrd v. Alle// was refused his costs. 
 The application must be made on notice : Tottet) v. Mclntyre, 2 Chy. Ch, 
 4«2. 
 
 A report appointing the payment of money, should be filed before the 
 
 day named for the payment : MilLi v. Dixon, 2 Chy. Ch. 53 ; and coniinned, 
 
 filed before where the rejxjrt is one requiring confirmation : Mountain v. Porter, 1 Chy. 
 
 ^SLtld for '^"' ^^' 
 
 payment. If the bank closes its office on or before the day name<l for payment, and 
 default be made, an application must be made in Chambers to appoint a 
 new day and to name another bank, and the order must be served : Kinn v. 
 Connor, 1 Chy. Ch. 274. 
 
 Order for, 
 when ne- 
 cessary. 
 
 Report 
 should be 
 
MASTER 8 OFFICE. 
 
 191 
 
 Rules 
 86-89. 
 
 Party may 
 iiay inouey 
 III to the 
 Holu credit 
 of tho 
 party eu- 
 titled 
 thureto or 
 to tho joint 
 credit of 
 Hiich party 
 and the Ac- 
 countant. 
 Uoports iu 
 adnunlH- 
 tratiua 
 suits. 
 
 KO. Where money is paid into a bank, in pursuance of 
 such appointment, the party paying may pay the same 
 either to the credit of the party to whom tlie same is made 
 payable, or to the joint credit of the party and the Account- 
 ant ; and if the same be paid to the sole credit of the party, 
 such party shall be entitled to receive the same without 
 the order of the Court. Chy. 0. 256. 
 
 ji7« In administration suits reports are, as far as 
 possible, to be in the form No. 42 in the Appendix. Chy. 
 0. 589. 
 
 TliH Master should not, in an adininistration action, attach to his ruport 
 a copy of tlm will of the testator whose estate is administered ; McCart/ar v. 
 Mr.kmwni, 15 (ir. 301. 
 
 HH, The Master in Ordinary shall have the same power, l^^^l^^}^ 
 auiaority, and jurisdiction, as the Master in Chambers, injuHsdic-^' 
 respect of all causes and matters referred to him, or which ciTambers. 
 may arise in his office. J. A. Rule 541 (a). 
 
 (a) Where he acts as Master in Chambers in a matter Fees, 
 within his jurisdiction as Master in Ordinary, the fees pay- 
 able in stamps shall be the same as if he were acting as 
 Master in Ordinary. 
 
 {h) Any Official Referee, upon the request of the Master pmciai iie- 
 in Ordinary, or of a Judge of the High Court, may sit with hu for^ias- 
 or for the Master ; and while sitting for him shall have allifaveulte 
 the authority and power of such Master, but shall not be i'°wei' 
 entitled to any fees. J. A. Rule 541 (fc). 
 
 It will be observed that s.s. (6)of this Rule only applies where the Official rractice as- 
 Referee is sitting "for the Master," it does not apply to cases where ato^l'Pefl'l- 
 reference is made to an Official Referee direct : in the latter cases he has, oj.'jigt^ui' 
 however, certain jjowers of the Master in Ordinary under Rule 43 et scq. A o,j^ report 
 report of an Official Referee, whether made upon a reference to him direct, of an Offl- 
 or when sitting for the Master, is to be appealed from, or confirmed, iu cial Re- 
 the same manner as a Master's report : Rules 43, 848, 50. feree. 
 
 (ii) Sales. 
 
 SO. Where a sale is ordered, the Master may cause the General 
 property, or a competent part thereof, to be sold either by were alaie 
 public auction, private contract, or tender, or part by one '«"'^d«''^"^- 
 mode and part by another, as he may think best for the 
 interest of all parties. J. A. Rule 331. 
 
 This and the following RiUcn !K)-115, apply to sales by official Referees, as 
 wU as by Masters : see Rule 43. 
 
m 
 
 4i 
 
 192 
 
 OFFICERS AND OFFICES. 
 
 settlement. 
 
 M^li ^^' ^^^^^ *^^ trusts of any will or settlempnt are being 
 
 Conduct of ^'^naioistered, and a sale is ordered of any property vested 
 «ttie jinder jn the trustees of such will or settlement upon trust for sale 
 wmo^r or with power of :sale by the trustees, the conduct of the 
 sale shall be gi\en to the trustees, unless the Court or a 
 Judge otherwise directs. J. A. Rule 408. 
 
 Identical with Eng. R., March 1870, r. 7. Formerly the plaintiff would 
 have had the conduct : Re Marshall, W. N. 1879, 11'. 
 
 Under this Mule the conduct of the sale v/as givei' to u defendant in an action 
 by one trustee who was also tenant for life, agairt^tthe three other tnistees: 
 He Uardner, (Uirdnef v. Beaumont, 48 L. J. Chy. 644. 
 
 Copy of 
 order di- 
 recting 
 sale, is not 
 to be 
 brought 
 into M. O. 
 unless re- 
 quired by 
 the Master, 
 
 HI. Where a sale is to take place under a judgment or 
 order of the Court, no copy of the judgment or order, or 
 any part thereof, is to be Ijrought into Chambers, or the 
 Master's office, but the original judgment or order is to be 
 used, unless the Judge or Master requires a copy. Chy. 0. 
 374. 
 
 Conduct of Conduct Of the Sale. — The partj' having the carriage of the ordev, or judg- 
 sale. Who ment, directing a sale, is the party usually entitled to the conduct of the sale. 
 entitled to. 
 
 The mere extent of the interest of any party in the proj)erty, or the possea- 
 sion by him of title deeds, do not give any right to conduct the sale. Usually 
 the plaintiff having the carriage of the judgment, or order, will also have the 
 conduct of the sale : Dale v. Hamilton, 10 Ha. App. vii. But where it is for the 
 benefit of all partie.s, the conduct of the sale may be given to a defendant : 
 Jietvitt V. JVanson, 7 \V. R. 5 ; Dixmi v. Pyner, 7 Ha. 331 ; or where all parties 
 to the action wish to bid, it may be given to an indefx-ndent solicitor : Itanmp 
 V McDonald, 8 P. R. 283. 
 
 Trustees But "where the trusts of any will, or settlement, are being administered, 
 *DtitJ_^<l to, and a sale is ordered of any projjerty vested in the trustees t)f such will, or 
 " * settlement, upon trust tor sale, or with power of sale by such trustees, the eon- 
 duct of such sale shall be given to such trustees, unless the Judge shall other- 
 wise direct," Ride90 supra. 
 
 Duty of It is the duty of the solicitor of the party having the ccmduct of the sale, to 
 
 solicitnr prepare the advertisement, to proc\ire its settlement by the Master, and U) 
 having con- ^^^,^, ^q j^g publication, pursuant to the Master's direction, to make the 
 sale necessary arrangements with the auctioneer, to attend the sale, to see that 
 
 the contracts are duly signed by the purchasers, to prepare the necessary 
 affidavits pn)Ving the sale, and procure the report on sale to hv settled and 
 filed, to (leliver abstracts and answer requisitions, and objections, and to 
 attend any reference as to the title ; to attend the settlement of the convey- 
 ances, and procure tlieir execution by all necessary parties to the action ; and 
 to enforee, if necessary, by motion the due perfonnance by the purchasers 
 of their contracts. He is usually styled "tne vendors' solicitor," and as 
 such he acts for the puriwse of the sale, and as regards the purchaser, for 
 all the parties to the action who are interested in tlie land directed to be 
 sold : Dalln, v. Pullm, 1 R. & M. 2<)G ; Street v. Ilallett, (i P. R. 312 ; but 
 liis own cdient must bear any loss occivsioned by such solicitor's malfeasance, 
 such as the mit>apj)ropriation of the purchase money : Mulkins v. Clarke, 11 
 
 Duty of Illvery party to the action is bound to facilitate the sale : Knott v. Cottec, ~i 
 
 parties. Beav. 33. Interference by other j)arties, with the party having the conduct ot 
 the sale, may be restrained by injunction : Dean v. Wdson, 10 Cli. D. 136. 
 
 in certain 
 cases 
 
MASTERS OFFICE— SALKS. 
 
 198 
 
 The party having the conduct of the sale, is not at liberty to bid, except Rules 
 leave fje granted specially : see Rule 98. 92-94. 
 
 Where a sale has proved abortive for want of bidders, the projjerty may l)e Abortive 
 advertised and i)nt up again for sale without further order : Sherwood v. Camp- sale. 
 kll, 1 Chy. Ch. 2i)9. 
 
 92. An appointment or warrant in respect of the sale Appoint 
 is to be obtained from the Judge or Master, and served "ettie" 
 upon all necessary parties. Chy. 0. 375. men?"'"" 
 
 03. At the time appointed thereby, the party having the ^j'^/j*^*'^' 
 conduct of the sale, is to bring into Chambers, or the meut to 
 Master's office, a draft advertisement, but no particulars or jjf, but"f^* 
 conditions of the sale, or any draft or copy thereof. Chy. ^'^ con^i"^ 
 0. 376. tio"s. 
 
 It will Ix; seen from the next Rulr, that any particulars in which the 
 proiKxserl conditions of sale differ from the standing conditions, are to be 
 set out in tlie advertisement. This Jiuir, thereft)re, renders it unnecessary 
 to bring in any particulars and conditions of sale, apart from those necessarily 
 required to be endK)died in the advertisement. 
 
 94. The advertisement is to contain the following par- Advertise- 
 
 ,. , o J. ments of 
 
 tlCUiars : — sale to con- 
 
 tain. 
 
 (1) The short style of cause ; style of 
 
 cause. 
 
 (2) That the sale is in pursuance of a judgment or order R«!Uai ot 
 of the Court ; 
 
 (3) The time and place of sale ; 
 
 order. 
 
 Time and 
 place of 
 sale. 
 
 sold 
 
 (4) A short and true description of the property to be cescrip- 
 
 perty. 
 
 (5) The manner in which the property is to be sold. Manner of 
 whether in one lot or in several, and if in several, how**^^" 
 many, and what lots ; 
 
 (6) What proportion of the purchase money is to be paid 
 (h\m by way of deposit, and at what time or times, and 
 whether _.e residue of such purchase money is to be paid 
 with, or without interest ; 
 
 (7) Any particulars, in which the proposed conditions of 
 sale differ from the standing conditions. Chy. 0. 377. 
 
 Advertisements of sale shoidd be fninicd as concisely .as ixissible, and all 
 "i '^'u /^'''ch conveys no necessiirv inf< rniation to intending' purchasers 
 >lumld 1)0 excluded. The intnMluction of "imfting" is to be avoided : Baxter 
 '■'■"lIcyA Chy. Ch. 230; Buchnv v. Wilkrs, Ih. 231. The advertisement 
 MuHldsetout the improvements: llnrnrd v. Kidoitt, 1 Cliy. Ch. 244; and 
 
 M existence of a favorable lease, if any: McAlpinr v. Youn;/, 2 Chy. Ch. 
 
 ''• But any omissions of tiiis kind, ifiust, as a general nile, bo objected 
 J.A. 13 
 
 Terms of 
 paynientof 
 purchase 
 iiionev. 
 
 Any special 
 conditions. 
 
 Advei'tise- 
 nieuts of 
 sale, how to 
 be framed. 
 
■W^ 
 
 ) 'J 
 
 "Ol 
 
 194 
 
 Rule 94. 
 
 Defects in 
 advertise- 
 ments, 
 how cor- 
 rected. 
 Misropre- 
 sentatiou 
 in, effect of 
 
 OFl'lCKRS AND OFFICES. 
 
 to at the time of settling tlie advertisement, or tefore the sale has taken 
 l)lace : Creswick v. Thompnon, (i P. R. ri2. But, where a material fact was 
 omitted from the advertisement, e.;/., that a lease was subject to a ground 
 rent, the purchaser was discharged from his purchase : Juhck v. Jtimmer 
 14 Ch. D. 588 ; 43 L. T. N. S. Ill ; 4!l L. J. Ch. 775 ; 20 Ch. D. 1. 
 
 Misdescription in the advertisement, where it amounts to a material 
 misrepresentation, is also a ground for compensation to the purchaser: 
 -StaiMHcrs V. (/JJonofioc, 28 (^r. 2(!7 ; even after conveyance : Hull v. Harper, 
 () P. R. 30 ; or may entitle the jmrchaser, at his ootion, to be relieved from his 
 purchase : Mutliian v. YMk, 4tJ L. T. N. S. 4i»7 ; Rcdijrmr v. J/uril, 20 Ch. D. 1; 
 45 L. T. N. S. 485 ; 51 L. J. Ch. 113. 
 
 Special Special Conditions. — Unnecessarily stringent coiiditions of sale ought not 
 
 conditions to be sanctioned by the Master ; thus where the title, or the i)roof of it, 
 of sale, not ^^.j^^ involved in no difficulty, a condition of .sale that " The vendor is not to 
 to be re- be bound to give any evidence of title, or any title deeds, or coiiies thereof, 
 other than such as are in his possession, or prove any abstract," was 
 condemned by the Court : McDonald v. (ronfon, 2 Chy. Ch. 12.j ; and nev 
 Dance v. Uoldimiham, L. R. 8 Chy. !»02 ; Dunii v. Flood, 25 Ch. D. (i2i» ; 49 L. T. 
 N. S. 670 ; 28 Ch. D. 58(> ; 52 L. 'T. N. S. (>(«) ; Re Banner, 53 L. T. N. S. 495. 
 Trustees selling without a reserve bid were restrained : Doicnei/ v. Dennii, 
 14 Ont. 219. 
 
 In sales by the Court, if a rockI title can be made, the parties are not at 
 liberty to relieve themselves by special conditions from the obligation tn 
 make such a title, and the Court will not provide by conditions for imaginar)' 
 defects, pc7- Mowat, V.C, McDonakl v. Gordon, 2 Chy. Ch. 12(5 : Piers \. Piers, 
 Sau. & Sc.,414. "It is the imiform practice of a Court of Equity, not to 
 set up for sale a title knowing it to be bad " : Bennett v. Wheeler, 1 Ir. Eq. 10; 
 Lahev v. Bell, « Ir. Eq. 122 ; ' Sugden, V. & P., 14th ed., 100, and s.>e Hume v. 
 Bentleii, 5 D. G. & S. 527. 
 
 sorted to 
 
 without 
 
 cause. 
 
 Condition 
 requiring 
 purchaser 
 to asnume 
 as true, 
 what is 
 false, is 
 bad. 
 
 Effect of 
 special con- 
 cutious a. 
 to title. 
 
 A condition of sale is bad, as misleading, if it require the i)ur(;haser w 
 assume as true, what the vendor knows to be false ; or if it stair, tlia', the state 
 of the title is not accurately known, when in fact it is known to the vendor ; 
 see yetsh v. WooderKon, 78 L. T. Jour. 59. And a purchasei purchasing 
 at a sale by the Court under such conditions, is entitled to have a. good title 
 made, notwithstanding the conditions ; but where the conditions on vhe face 
 of them purport to give only a good holding title, that is all the purchaser, 
 even though relieved from the conditions, can insist on : Re Banister, Broad w 
 Munton, 12 Ch. D. 131. 
 
 Aid where a sale was had, under a condition that precluded the purchaser 
 ' from objecting to the title prior to the document chosen as the root of the 
 title, but the purchaser inquired into the prior title and refused to complete, 
 on the ground that the prior title was bad, the Court, being of opinioi) 
 that the objection was W(>11 foun<led, refused to enforce the sale against the 
 purchaser, and di.scharged him from his purchase: Else \. Else, Ij.r.^^^' 
 196; WillidVis v. Wood, 1(>\V. R. 1005 : Bennett v. Wheeler, 1 Ir. E(i. Ki; Huiiu 
 V. Bentlc/i, 5 D. G. & S. 527 ; and see Dunn v. Flood, supra. 
 
 Where a sale was hiid upon condition that in case the vendor should i)f 
 imable or unwilling to remove or comply with any objection or requisition 
 made by the purchaser, lie might rescind the sale, and the i)urcha.s('r delivered 
 requisitions which the vendor answered, but the purchaser ccnisidered tlic 
 answer insufficient, and tiie vendor then gave notice tiiat he rescinded the 
 contract, it was held that the |mrchaser could not by suKseipu'iitlv "aivmj; 
 his oliiections prevent tiie rescission taking effect : D(iiiti'''\. \Vo(iil,^>\ L. T.^'/'^' 
 109. Where a sale was liad under a condition that no objei^tioii or requisitiou 
 should be made by the purchaser by reason of the non-acknowledgment of a 
 deed dated 18 Dee., 1841, by a married woman, who was a party to it, ana it 
 turned out that tiie deed in question was the c(»nveyance to tlu^ v('nd(ir,an(1 
 that tlie married woman hiul one-tifth interest in the estate, and that the vendor, 
 though in possession, had not actpiired a title under the Statute of Limitations. 
 the Court refused to enforce the contract against thti purchasers ; iff CwmH 
 to Ooldbolt, 78 L. T. Jour. 31. 
 
 The .standing co 
 
MASTER S OFFICE — SALES. 
 
 196 
 
 Tlie .staiulinj,' conditions of sale are those referred to in Rule 1K». Rule 95. 
 
 Where an iidvertisement is not settled in proper f(jnn, it may on motion in Advertise- 
 Chambers be referred back to the Master to be re-settled, and if necessary to ment may 
 •.ipiKiinta new day for the sale: Hcwnrd v. Ridout, 1 Chy. Ch. 244; such an ba ordered 
 iviiplioation being in the nature of an appeal from the Master, would seem to g°ttfe^^" 
 l)e beyond the jurisdictii>n of tht Master in Chambers, and to be proper to be 
 made til a Judge in Chambers. 
 
 Vi^. At the time named in the appointment or warrant, 
 the Judge or Master is to settle the advertisement ; to lix 
 the time and place of sale ; to name an auctioneer, where 
 one is to be employed ; and to make every other necessary 
 arrangement preparatory to the sale, so that nothing may 
 remain to be done but to insert the advertisement ; and 
 all the before mentioned matters must be done at one 
 meeting, namely, upon the return of the appointment or 
 warrant where it is practicable, and no adjournment of 
 such meeting is to take place, and no new meeting is to be 
 appointed for the aforesaid purposes, unless it is unavoid- 
 Chy. 0. 378. 
 
 Master on 
 return of 
 warrant, to 
 settle ad- 
 vertise- 
 ment to 
 appoint 
 auctioneer, 
 and fix 
 time, and 
 place of 
 sale, etc. 
 
 Formerly, 
 sale must 
 be by auc- 
 tion, unless 
 otherwise 
 ordered. 
 But now 
 Master 
 may direct 
 sale by ten- 
 der, etc. 
 
 Formerly all sales directed by the Court of Chancei'y had to be by auction, 
 unless the order, or decree, expressly authorized a sale m some otiier way. 
 Even after an abortive attempt to sell by auction, a sale in any other way 
 •could not be had except by express order : iierry v. (ribbons, L. R. 1.5 Eq. 150. 
 Xow, where a sale is ordered, the Master may cause the property, or a competent 
 part thereof to be sold either by public auction, private contract, or tender, 
 or part by one mode, and part by another, as he may think best for the 
 interest of all parties; and he may fix an upset price, or reserved bidding, 
 Imt such price, o- bidding, must be su fixed at tne meetin;,' held by him for the 
 settlinif of the advertisement, and making the other arrangements preparatory 
 to the sale, and must be notified in the conditi(ms of sale : Ride 89. The 
 Master is not justified in accepting a tender from the person having the 
 wnduct of the sale : Rinimiy v. McDomdd, 8 P. R. 283. 
 
 When land is offered for sale by auction, uiiless in the particulars or con- 
 ditions of sale it is stated that the land will be sold subject to a reserved 
 lirice, or a right of the seller to bid, the sale is to be deemed, and taken, to be 
 without reserve ; and ui)on any sale without reserve, it is unlawful for the 
 seller, or a puffer, to bid, or for the auctioneer knowingly to take any bidding 
 fmm a sellej, or puffer : see R. S. O. c. KK), ss. 22, 23 ; Hvrron v. Mofffdt, 22 
 ''r. at pp. ,S7o-(!. Upon a sale without reserve it is not t)pen to the vendor to 
 Mm a bid, however suuill : O'Counor v. Wi'odwnrd, (J P. R. 223 ; McAlpiw 
 ^^ Ymnij,2, Chy. Ch. 171 . Tlie offer of i»roi)erty subject to a reserved bidding, 
 'loes not involve also a right for tlie seller to bid, or to employ a puffer ; thus. 
 ivliere a sale was advertised under a decree subject to a reserved bid, but no 
 "pit on the part of the seller to bid was reserved, but a puffer was emi)loyed 
 M\m bids did not exceed the reserved bid, the sale was on tlie application of 
 jlieimrchaaer set aside: (idlint v. (Uniat, 18 W. R. 203 ; L. R. 9 Kii. (iO, and if a 
 liniitd riftht to bid l)e reserved, and the limit be exceetled, the sale is voidable : 
 f^'irl" V. Jeiwm, 4(i L. J. C. P. .529. 
 
 ^ Ine Master, or liis clerk, may conduct the sale if no aiictioneer is employed : 
 **i dH**'' ^'" license for the Master, or his clerk, to act as auctioneer 
 i.™" '^•!^- 0. c. 184, s. 49.5, ss. 2, is necessary : Rcjina v. t'hnpiiuDi, 1 Ont. 
 
 Under a judgment for sale in a mortgage suit, it is tlie mortgagor's duty to MortRage 
 
 "•■''f) the parcelling out of the land directed to be sold, and if he consider too «""''• "'"»■'- 
 
 gagors 
 
 Sales by 
 auction, 
 highest 
 bidder, 
 right of. 
 Limited 
 right of 
 vendor to 
 bid cannot 
 bo ex- 
 ceeded. 
 
 Master, or 
 his clerk, 
 acting as 
 auctioneer. 
 
■i 
 
 '1 
 
 "1 
 
 ■ 
 
 1 
 
 m 
 
 
 i 
 
 
 ' 1 
 
 1 T 
 
 'm 
 
 196 
 
 Rule 
 
 96-98. 
 
 duty as to 
 advertise- 
 ment. 
 
 OFFICERS AND OFFICFiS. 
 
 much is oflfered for sale he should urge the objection at the time of settling tin- 
 advertisement, and it should be stated in the advertisement that so soon as 
 suflRcient has been realized by the sale to pay off the plaintiff's and other 
 claims, the remaining lots, if any, will be withdrawn, if that course is intendwl 
 to be pursued : Bcati/ v. Jiadenhurnt, 3 Chy. Ch. 344. 
 
 Standing 96. The Standing conditions of sale are to be tho 
 ofsaie!""' forth in Form No. 43 in the Appendix. Chy. 0. 379. 
 
 Any conditions varying from, or in addition to, the siwcial conditions must 
 be stated at length in the advertisement : Rule 94. 
 
 Wliere the owner of the equity of redemjjtion is dead, and his heirs are out 
 of the jurisdiction, or unknown, a sale may be directed in an action against a 
 subsequent mortgagee, and the Provincial Attorney-General as representing 
 the deceased mortgagor, but the circumstances under wliich the sale is 
 directed, must be stated in the particulars of sale : Smith v. (r'nail, 14 (ir. +14. 
 
 As to special conditions see note to Ilule 5)4. 
 
 Even without the standing condition for a re-sale in case of default by the 
 purchaser, and payment by him of any deficiency, the law implies sueli a 
 contract : Re HorniUruok; I'i P. R. .'J!tl. 
 
 Where, as the standing condition provides, the deixjsit is payable to tlie 
 vendor's solicitor ; if he makes away with it, it cannot be recovered from tlie 
 auctioneer : Brovn v. Farchrother, 59 L. T. N. S. 822 ; but the client of the 
 solicitor is responsible to the other parties interested, to make gtxxi tiie los.* : 
 Midkins v. Vlarke, 11 P. R. 350. 
 
 
 ''mi 
 
 Master 
 may fix up- 
 set price, or 
 reserved 
 bidding. 
 
 Reserved 
 bid, )iow 
 fixed. 
 
 How com- 
 municated 
 to auc- 
 tioneer. 
 
 OT. The Judge or Master may, without further order, 
 fix an upset price, or reserved bidding, where it is tliought 
 expedient ; but this must be done at the meeting held for 
 the purpose of settling the advertisement and making the 
 other arrangements preparatory to the sale, and it must 
 be notified in the conditions of sale. Chy. 0. 380 ; J. A. 
 Eule 881 part. 
 
 In oi-der to enable the Master to fix a reserved bid, an affidavit made 1')' 
 some coinpc tent surveyor must be filed. See Leggo's Fonns, 2nded.,Ni). 
 940. 
 
 According to tho English practice affidavits for the purjwse of enabling tlie 
 Judge to fix reserved biddings are to state the value of the proijerty by 
 reference to an exhibit, so that the value may not be disclosed l)y tlie affidavit 
 when filed. Judge's Regulations, Aug. 1857, xiii : Snow & Wiiistanley k\w. 
 Pr. 575 ; and see Englisli Rule, Ortl. 51 r. 4, founded therein. 
 
 Where tlie Master omitted cm the settling of the advertisement to fis 'i 
 reserved bid, on motion in Chambers leave to fix reserved bid, and re-adverti* 
 was granted : Fra.ser v. lienn, 1 Chy. Ch. 71. 
 
 Where the sale takes place elsewhere than before the Master, a note of the 
 amount of the reserved bid under a sealed cover is to be delivered to tlitj 
 auctioneer, or person selling the estate, with instructions not to i.)\m\ it until 
 the biddings are closed, and not to make the amount of it known even then. 
 
 All parties »S, All parties may bid, without taking out an order 
 Sccept^' for the purpose, except the party having the conduct of the 
 KwIXct sale, and except any trustees, agents, and other person* 
 
4 
 
 MASTER S OFFICE — SALES. 
 
 197 
 
 Rule 99. 
 
 of sale. 
 
 trnatees, 
 
 etc. 
 
 Leave to 
 bid, not 
 granted to 
 (larty liav- 
 lUR con- 
 duct of 
 sale. 
 
 Nor to ex- 
 ecutor, re- 
 ceiver, 
 guardian 
 ad lit. nor 
 trustee. 
 
 ill a fiduciary situation ; and where any parties are to be 
 at liberty to bid, it must be notified in the conditions of 
 sale. Chy. 0. 381. 
 
 Leave to bifl will not usually be granted to the party having the conduc_ 
 (if the siilf : I'hUUpx v. Conr/cr, 1 O. S. 231 -, l)omrilk v. BerriiKjVm, 2 Y. & C' 
 r'>3' Sidiii'i/ V. /tini'/a; 12 Sim. 118, nor to his servants, or agents : see Martin- 
 m 'v. Chiivs, 4(i L. T. N. S. 882 ; .51 L. J. Ch. .594. Excej)t upon the terms 
 of traiisforring the conduct of the sale to an independent .solicitor, if none of the 
 iither i)arties will take it : Rnnimii v. MclUmitld, 8 P. K. 283. Leave to bid has 
 also been refused to an e.xecutor, in an iidministration action : ('clikirdv. Ran- 
 iMl, 9 Jur. 1085 ; to a receiver : Alren v. Botx/, 1 Flan. & K. liHJ ; to a guardian 
 (fl litem; nee Seton 13!)G ; Cnnrfnril v. Bni/tl, (i P. R. 278. Leave will not, in 
 general, be granted to trustees to bid, unless all the cegtiiii< que truxtimt who are 
 siii jitrix consent, and no other ijurchaser at an adequate price can be found : 
 Tmrnnt v. Treiielutrd, L. R. 4 Chy. .537, 547 ; Faniur v. Jiean, 32 Beav. 327, 
 and see Ridrr v. /{ickcr, 27 Gr. 570 ; S. V. 7 t)nt. App. 28 ; 18 C. L. J. 274 ; 
 2 C. L. T. 3!)!), and a trustee who has obtained leave to bid, is not exonerated 
 from his duty of protecting the interest of his cestui </iie trust : lb : but see 
 ll"sirell V. (Md:'<, 48 L. T. N. S. 92!) : 51 L. T. N. S. 242 ; 55 L. T. N. S. 32 ; 
 23 Ch. 1). 302 ; 27 Ch. D. 424 ; 11 App. Cas. 232. Although a vendor cannot 
 liimself Iwcome tl>e purchaser unless ne has obtained special leave to bid, yet it 
 would seem that there is no objection to a Joint Stock Company in which he 
 is a shareholder becoming the jmrchaser : see Fcrrar v. Farmrn, 40 Ch. D. 
 .Si).") ; .'I'.tL,. T. X. S. (ill). But where a trustee for sale, or thr vendor, has a secret 
 understanding not amounting to a contract, that the purchast^ will re-sell the 
 liropertv to him, the sale will bo set aside though no actual fraudident intent be 
 proved; Jit /'ostleirnite, I'tisllewuite v. Ricknmn, 59 L. T. N. S. 58; but this 
 tiise wa.s reversed on appeal owing to the great lapse of time : 60 L. T. N. S. 
 .514. 
 
 Leave for parties, not otherwise entitled, to bid, is sometunes contamed in Leave to 
 tlie order, or judgment, directing the sale, but an order for that purpose is bid, how 
 usually obtained in Chambers on notice to the other i)arties interested. The obtained. 
 Master formerly hiid no i)ower to grant such leave : Re Lai/enek, Mcdil/irrai/ v. 
 .Idhiwt]!, X V. H. .548, but may now do so in the exercise of his jurisdiction in 
 Chambers under Rule 88. 
 
 When a party not authorized to bid, has bid without leave and become the Effect of 
 jmrchaser, the sale will not necessarily be set aside, but tlie property may, on party not 
 the application of the other i)arties interested, be ordered to jnit u]) for sale ^'Utliwized 
 again at the expense of the party so bidding, and if no more can be realized he '° "'." "®' 
 may be held to his purchase : JF//.s">' ^ tii-noum,,,,! 10 Mim irn • Xiihinu v co'uing 
 \'mi\ti\ 12 Sim. 118 ; V en v for J v. 
 (•/"ires, 1)2 L. 1'. N. S. 70<!. 
 
 V.soH V. (.•eee,ne,H„(, 10 Sim. 101 ; Sidiie,, v. p°,',"'i"fser 
 JUii/d, () P. R. 278 ; and see Muetiiinoii v. 
 
 99. The advertisement is to be inserted by the party I'arty imv- 
 eondiicting the sale, at such times and in such manner "f^saie to" 
 as the Judge or Master appointed at the meeting before asdfreifted* 
 mentioned. Chy. 0. 382. 
 
 When a s.ale is jjostponed, a note of such adjournment published at the foot Postpoue- 
 I'f the original advertisement will suffice, without incurring the expense of an uieut of 
 piitirely fresh adverti-sement : Thorn fimn \. MiUiken, 15 Cir. 197. *"^'*' 
 
 Hales are not to be ])osti)oned except in extreme cases. Where pending the 
 tiiue appointed in a mortgage suit for redemption, the mortgagor made an 
 assignment in insolvency, but the plaintiff j)roceeded with the suit without add- 
 ing the assignee ; a motion by the latter to stay the sale on the ground that he 
 iiail no notice of settling the advertisement was refused : Hoskina v. Johnston, 
 'iP.R.257. 
 
 ^^ 
 
198 
 
 Rules 
 100-102. 
 
 MaBtor, 
 clerk, oi- 
 auctlonoor 
 may con- 
 duct Hale 
 
 Bi(U. i-ns. 
 
 OFFICERS AND OFFICES. 
 
 lOO. The Master or his Clerk is to conduct the sale 
 where no auctioneer is employed. Chy. 0. 388. 
 
 An auctioneer selling land is not retjuired to be licensed under the R. S. 
 c. 184, 8. 495, 88. 2 : Berjina v. ClKqmuin, 1 Ont. 582. 
 
 .1. Biddings need not be in writing, but a written 
 t" lent is to be signed by the purchaser at the time of 
 sale. Chy. 0. 384. 
 
 Sale wiLir Where Vlie sale is to be without i-eserve, the vendor is not at liberty to refiis*' 
 out reserve anj' '-id, In " r small : O'Connor v. Woodward, P. R. 223; McMiiinr \- 
 Yoiiiuj, 2 '"-'ii.v. oil. »r,, "71. 
 
 Vendor, or Neither, when the sale is withoiit reserve, can the vendor, or a imfFcr, Md. 
 pulfer inny tniless the ripht lo bid is expressly reserved in the conditions of sale. And 
 not bid. where the right to bid is limited to one or more bids, the vendor may not 
 exceed it. And where tlie sale is subject to areserved bid, a i )uffer cannot aki 
 be employed ; see Hide 05 ; but where a stranger, at tlu' instance of the inortgagdr, 
 made a fictitious bid at a sale of the mortgaged property under a jiidpiu'iit 
 of the Court, it was held that a purchaser coidd not avoid tlie sale on the ground 
 that he had been thereljy induced to bid more than he otherwise would : Unimi 
 Hank V. Mnmtn; 37 Ch. 1). 51 ; 57 L. T. N. S. s. 877. 
 
 Where the sale is without reserve, but the vendor, after a bid lias been made, 
 withdraws the i)roi)erty from sale, the highe.st bidder may, nevertheless, apply 
 to be declared the purchaser : McAlpini- v. Yovmj, nupra. It would seem tnat 
 such an apphcation should be made in the first i)lace to the Master toreiwrton 
 the sale, and if he refuse to report the hig lest bidder the jairchaser, an apjjeal 
 would lie from him to tht^ Court in t'.ie ordinary way, see Eiilf S.50. In 
 MeAlphw v. Yon ml, the application a[)pearH to have been made in Chambers in 
 the first instance. 
 
 Acceptance Where the auctioneer has accepted the bid of a vendor, or puffer, who iiadno 
 of an inva- right to bid, and declared him the purcliasei', it would seem that the highest 
 lid bid. bidder lawfully bidding, would be entitled to set aside the sale, and have him- 
 self declared the purcliaser. 
 
 Contract. The agreement to be signed by the ]iurcliaser should identify the property 
 piirchased, by reference to the particulars and conditions of sale, and sliould in 
 other resi)ects be a sufficient agreement to satisfy the requirements of the 
 Statute of Frauds ; but it is jwssible that a contract ujXJn a sale by tlie Court 
 might be enforced thoiigh these formalities had not been comjilied with : see 
 Daniel's Pr. (ith ed. 1104. 
 
 Contract, The purchaser should sigii his name, and his address and quality should ako 
 how to be he stated. If his signatinv is not plain, or initials are used, it is desirable that a 
 signed. note of his fidl name should be written at the fcwt. Where any [XTson pur- 
 chases as agent for another, it slujuld l)e so (expressed in the signature, other- 
 wise he will be treated as the purchaser, iniless an affidavit showing the fact t( 
 ht\ otherwise, is pnKluced on tne settlement of the reijort on sale. See Danl. 
 Pr. «th ed. 1083. 
 
 Deposit at 103. The deposit is to be paid to the vendor, if present, 
 be'paw^ *° or if not, to his solicitor, at the time of sale, and is forth- 
 with to be paid by him into Court. Chy. 0. 385. 
 
 Solicitor If the solicitor for the vendor neglects to pay the deposit into Court, he may 
 
 neglecting be compelled to do so by order, on application of i,he purchaser : Cnioh y. 
 to pajr in aiemi, 1 Chy. Ch. 354. And where he neglected to |)ay in the de])o»it, and in 
 Ha^iHtv of consequence of his not having done so the judgment was not in the hands of 
 ' the Accountant, so that the purcliaser could not obtain a direction to pay in 
 
MASTIiR 8 OFFICE — SALES. 
 
 199 
 
 tlie balance of his imrchase money, the solicitor was ordered to pay the interist 
 wliich \vt)uld have accrued on the whole jjurchase money, if the money had 
 been duly [laid into Court : Smith v. /)ann, 3 C. L. T. 217. 
 
 Where the dejwwit was jiaid by the auctioneer to one of a firm of solicitorH 
 liavinu' the conduct of the nale, who miHapiJropriated it, the other members of 
 til., fii-ni w.Te held liable for it : Jiimis v. /irei; 45 L. T. N. S. (J48 ; 4(5 L. T. 
 N, S. X; and see Tli'imjtsdn v. RiibiuHiiii, 15 Ont. (iG2 ; KJ Out. App. 175. 
 
 The client of the solicitor making default is responsible to the other parties 
 to the action for his misfeasance: Mulhiiis v. <'l(irhe, 11 P. R. 350; but an 
 iUictiinieer "iio pays the deposit to the solicitor pursuant to the condition.^ of 
 sale is dischartred' from liability: Biniru v. Foirhrnther, 50 L. T. N. 8. 822. 
 Where lit a sale out of Court by a mortga^jee he had accepted a checpie for the 
 deposit wliich jinived bad, and the sale fell through in conseipience of the pur- 
 chaser turning out to be worthless, it was \\v\([ that the mortgagee was never- 
 tlielcss entitled to add the costs of the auction sale to his debt : Fnrfi'r v. Laceii, 
 mCh. I). 42; .")()L. T. N. S. 121. 
 
 Where till' sale is not completed through the default of the purchaser, he 
 fdl-'eits ills deposit to the vendor : /inni'ii/xn/ v. daoki-. S Q. B. D. H)2 ; Whchiii, 
 V. VoikIi, 2(i (ir. 74 ; Til/ v. Kn'i/ip, !» P. K. ^U ; Be - ' <rnih,;mh, 12 P. R. 591 ; 
 even thougii there be no stipulation to that effect : I'l.r imrte IhirreU, Be. P<ir- 
 mil, L. R. 10 Cliy. 512 ; hinni v. I'erc. 10 W. R. 151 ; and see I/nuv v. Smith, 50 
 L. T. X. S. 573 ; V((l/»ii v. J{niHen,2{i Ch. I). 101 ; 51 L. T. N. S. 70. And 
 this is so, even where the contract is invalid, and could not be legally enforced : 
 f/w/ww.v v. nrnini, 35 L. T. N. S. 247 ; but see ('(is.si,ii v. /iohcts, 3l"Beav. 013 ; 
 (ir wliere there is a defect in the vendor's title, which the purchaser is precluded, 
 by the conditions, from objecting to : Ruxenbcrg v. Cooh', mipra. 
 
 A deposit which has been forfeited for default of the purchaser cannot be 
 recovered back on the groimd that ujxm a re-sale of the property a fatal defect 
 in the title was discovered : Soprr v. A maid, .35 Ch. D. 384. 
 
 But where a sale has been improperly carried out .and the purchaser lias notice 
 that such is the case, he may refuse to carry out tiie jmrcnase and recover his 
 deposit : Lnrh'iii/ v. llahteud, IG Ont. 32. 
 
 Though the vendor's solicitor is entitled to his costs of receiving the deposit 
 on sale, and paying it into Court, out of the fund, he must look to the pur- 
 chasers for his costs of receiving, and paying into Court any other instal- 
 ments of the purchase-money, wliich it is their duty to pay mto Court : Re 
 Rtikrtmu, 24 (ir. 5.55. 
 
 In England the aucti(meer, or solicitor, appointed to receive the deposits, is 
 required to give security duly to account therefor : Danl. Pr. 0th ed., 1080. But 
 this ha« not been customary in Ontario. 
 
 Rules 
 103, 104. 
 
 If sale goes 
 otT for de- 
 fault of 
 purcbaser, 
 deposit is 
 forfeited. 
 
 Costsof 
 paying in 
 purchase 
 money. 
 
 Security 
 for deposit. 
 
 103. After the sale is concluded, the auctioneer, where Affidavit of 
 one is employed is to make the usual affidavit, and where S" certm^*' 
 no auctioneer is employed, the Master or his Clerk is to jiasteJ of 
 certify to the same effect. Chy. O. 386. lesuit of 
 
 For form of affidavit of auctioneer see Leggo's Forms, 2nd ed. No. 947. 
 
 104. The report on eale is to be in the form No. 44 in Report on 
 the Appendix, or as near thereto as circumstances permit, of'®**"™ 
 Chy. 0. 387. 
 
 The solicitor having the condurjt of the sale usually takes the necessary steps Report on 
 to procure the rejKirt on sale ; but it would seem that a purchaser may himself sale, by 
 take out the rejKirt on sale, and get it confirmed where he is the sole purchaser : whom to 
 Cnmks V. die nil, 1 Chy. Ch. a54 ; or nemble, he may take a separate report as „„ P^°" 
 to his own imrchase where he is not the sole purchaser. 
 
'i ( 
 
 200 OFFICERS AND OFFICES. 
 
 The cuniirmation of a Bale may be opix)Hed before the MuHter, and the talr 
 disallowed, on gromids which woidd juNtify a motion to set it aside- Benij 
 V. Badeii/iuisl, 3 Chy. Ch. 344 ; JMyer.s v. Bnlijei-K, 13 (ir. 143. 
 
 A motion to eontirm a sale will not be entertained in ChainhtTs, where ai, 
 irregularity has occurred, imless the sale has been aj^jroved of by the Master 
 Thovuis V. McCrav, 2 Cliy. t!h. 45(>; and see ('aiiU'ii v. Colbert, Ih. 455. Whe^ 
 the Master's directions have not been observed, tlie jiarty having' tlie conduct 
 of the sale will have to shew, at his own exr)ense, tliat no person interestedlias 
 lieen injured by the non-observance of the direction, otherwise tlie Master will 
 not confirm the sale : Royal Canadian Bank v. Dnmix, 4 Chy. Ch. (!8. 
 
 Where some j)erson not having authority to bid, has im|)roi)erly bid and been 
 declared at the auction the purchaser, the Master should not declare the «ali 
 V(jid, but should reixirt the sale, stating the facts as to the inijiroiwr bid ; ainl 
 it is then ojjen to the other parties to move to have tiie i)rn])ta'tv again iratiiii 
 for sale, at the exiwnseof the party so bidding imimiiierly, and holding liim t'l 
 his purchase if no higher price is realised : Crawford v. Boijd, (i P. R. 278, ir* 
 p. 280 ; or the purchaser may, on notice to all parties interested, move to crni 
 firm the sale to him. When the j)erson so bidding lias also had the conduct of 
 the sale, the sale will not as a general rule be confirmed, if any party object. 
 
 Until con- Until confirmatitin of the report 'm sale, tlie ^>roperty is at the risk of tW 
 ttrmatlon vendor, and in the event of fire, the loss occasioned therebv must fall on 
 of report i,;^ . Stephenson v. JSain, 8 P. R. IWJ, 258; X C. Itt C. L. if. 15, 115; bui 
 nvmf.'rtvat"'-* *" ^ales out of Court : see Rai/ner v. Preston, 43 L. T. N. S. 18 ; A', ('.in 
 risk of Appeal 44 L. T. N. S. 7«7 ; 18 Ch. D. 1 ; <Ull v. Canada Fire and Mnrit. 
 vendor. Insurance Co., 1 Ont. 341; Castellain v. Preston, 8 i^ B. D. 014 ; 40 L, T. 
 X. S. 509 ; 19 C. L. J. 143; 49 L. T. N. S. 29. 
 
 Rule lOS. 
 
 OppoBin}{ 
 Bale before 
 Master. 
 
 Opposing 
 sale in 
 Cliainbors. 
 
 Where a 
 party bid- 
 ding, and 
 becoming 
 the pur- 
 chaser, 
 had no 
 right to 
 bid. 
 
 Sale may 
 be objected 
 to on 
 motion. 
 
 105. A sale must be objected to by motion to the 
 (Jourt or a Judge ■'■.o set aside the same ; and notice of the 
 motion must be served upon the purchaser, and on the other 
 parties to the cause ; but the biddings are only to be 
 opened on special grounds, whether the application is made 
 before or after the report stands confirmed. Chy, 0. 888. 
 
 The motion to set aside the sale, or open the biddings, must generally W 
 made before tlie confirmati(m of the rejjort, but see Rickcr v. Itieker, % Gr, 
 570, and A. C. in appeal, 7 Ont. App. 282. Fonnerly, a mere offer to ^ve .in 
 increased i>rice was sufficient ground for ov)ening the biddings, biit this is n" 
 longer the case : Roberts v. Duric, 1 Chy. Ch. 211 ; now, special gmiind- 
 affecting the validity of the sale, must be established : Crcsirick\'. Thomiii" 
 P. R. 52 ; and the fact that the purchaser is one of the j)arties to the «'jii 
 makes no difference in the rule : Mitrhell v. Mitchell, P. R. 232 ; and 1; 
 applies to sales by tender, or private contract : Re Barthtt, Newman y. HmiA^ 
 L. T. N. S. 17. (ireat delay, is an answer to such an application, uiili>- 
 misconduct is shown on the i)art of the jnirchaser : Crooks v. ( Vooh, 2 ('!» 
 Ch. 29. The fact that pro))erty was suffered to oe iint.ukpd down at anuiKin 
 value to a son of the testator, under the belief th it he was bidding for him.^l:. 
 when in fact he had been employed by a third person to bid for him, wa.s litM 
 sufficient to warrant a re-sale : Pod'jo'x v. Rod<iers,\^ (4r. 143 : aii(l.''t'e Bft'ii'}'' 
 Kilhourn v. Coulter, P. R. 100 ; and where a vendor hiis a secret iniderstarKliii.' 
 with the imrchaser of the projH^rty that the purchaser is to re-sell it t" tli' 
 vendor, the sale will be set aside though nf) fraudulent intt'iit lie proved; si* 
 Re Postlrthwaite, Postlrthwaite v. Riekman, 59 L. T. N. S. 58 ; but this deti>i"ii 
 was subsequently reversed on apjieal owing to the great lapse of time : .S. ' 
 00 L. T. N. S. 514. 
 
 Purchaser But the fact that a defendant was prevented from b"'.';ng, liy iiromi»esni:vl' 
 as secret ),,y tjjg purchaser to give him the benefit of the !)»■ ■ --ase, is no gnnum f"' 
 trustee. „j,ening the biddings, such fact, if established, would constitute the purcliaf' 
 
 Motion to 
 "open bid- 
 dings," 
 where 
 made. 
 Grounds oil 
 which mo- 
 tion may 
 be made. 
 
201 
 
 Brock V. Saul, 2 Chy. Rule 106. 
 
 MASTER 8 OFFICK — SALES. 
 
 a trustee, and the truBt must be established-by action 
 Ch.l46. 
 
 Where a next friend of a plaintiff who had the conduct of the sale, had bid Purchase 
 without autiiority, a re-sale wa8 oi-dered, the next friend being held to his fL^JJ"!"** 
 purchase in case a greater price could not be obtained, and he m as ordered to pay .jartv hav- 
 the costs ; Crawford v, Boiid, (> P. R. 278; and see RumsHii v. McDomdd, 8 conduct 
 P. R. 283. ■ 
 
 The existence of mere irregularities in the proceedings prior to the sale, does Mere ir- 
 not affect the validity of the sale as against a Wi('( lide purchaser: Dickoi v. renularitv 
 //froH, 1 Cliv. Ch. 14!l; Oimnv. Dohli; 15 Gr. 055; ,Sltawv. Crawford, 4 Ont. not snffl- 
 App. 371 ; McLean v. (Irnnt, 20 (ir. 7(> ; Volli»s v. Deiiison, 2 Chy. Ch. 4C.5. "o'*,^ t^ 
 
 Where a sale took place after an order had been made .staying it, **"' aside 
 but of whicli the auctioneer, and the purchaser, had no notice, tlie Court '*^^' 
 refused, after confinnation of the rejtort, to set aside the sale : Frrcliold 
 Buildiiuj Socktii v. Choatc, 3 Chy. Ch. 444. 
 
 But where through a mis-statement in the advertisement, the i>roj)erty was Mistate- 
 knocked down at an imdervalue, and less than the jjurchaser himst-lf would nients in 
 have otiierwise given, a re-sale wa.< ordered : Jimes v. Clarke, 1 (ir. 3GS. But it advertise- 
 would seem that if the purehaser witliout any misreiiresentation, or imdue con- IJi®" '"** 
 eealment, by the vendor, got a lesH benefit from his i)urchase than he exjjected, 
 that would be no ground for relieving him from his contract : James v. Free- 
 Aoirf, 5 (ir. 302 ; Cummercial Jiankx. AfrCfmiiell, 7 (.ir. 323. Misre])resentation8 
 in the advertisement as to facts visible to the eye, amounting to mere exag- 
 geration, do not warrant a release of the purchaser from his contract : Crooks v. 
 Ikvin, () (ir. .S17, but .see Stammerti v. O' />ttiiolii(e, 28 (xr. 207 ; 8 Ont. App. 101 ; 
 11 S. C. R. 358 : (Jale v. Hubert, (5 Gr. 312 ; and see jiost Rale 100, notes. 
 
 Where land was stated in the advertisement to be in the occui)ation of a 
 tenant .at a yearly tenancy, but before the sale the tenant had written intimat- 
 ing his intention of giving up the land, but the letter teing written l)cfore the 
 jiroijer time for giving Hucn notice the vendor had answered, " you will of 
 course send me a formal notice at the right time, and after the sale the tenant 
 gave the formal notice ; it was held that the nondisclosure of the ])revious 
 cnrresiKindence did not entitle the jmrchaser to rescind : /tdvenport v. 
 Ckmky, 54 L. T. N. S. 372. 
 
 10ft. At any time after the confirmation of the sale the 
 purchaser may pay his purchase money and interest, if 
 any, or the balance thereof, into Court without further 
 order, upon notice to the party having the conduct of the 
 sale ; and when he is entitled to be let into possession of 
 the estate, he may, if possession is wrongfully withheld 
 from him, proceed at his own expense to obtain an order 
 against the party in possession for the delivery thereof to 
 him, or may call upon the vendor to cause possession to be 
 delivered to him. Chy. 0. 389. 
 
 rijf^cjnt of Purchase Money. — Where the purchaser makes default in pay- 
 ing his i)iu-c]iase money into Court pursuant to the conditi()ns of sale, the 
 vendors may move to comjiel him to pay in the amount overdue, and in default 
 of payment, for a re-sale of the property. 
 
 The deposit paid at the sale, is to be i)aid into Court : see Jiule 102 ; if not 
 paid in Ijy the vendor, tht< piu'chaser nmst move to compel ])ayment, before he 
 oan obtain a vesting order. 
 
 When tile plaintiff's solicitor makes default in paying in the deposit, the 
 other parties interested in the purchase money will not suffer thereby, but the 
 
 After con- 
 llrniation 
 of report 
 purcnaser 
 may pay 
 his pur- 
 chase 
 money in- 
 to Court. 
 Howol)taiu 
 possession 
 
 Default in 
 payment of 
 purchase 
 money, 
 effect of. 
 
 Deposit at 
 sale to be 
 paid into 
 Court. 
 
202 
 
 OFFICERS AND OFFICEH. 
 
 Rule 106. 
 
 I'liyineiit 
 of piirclmso 
 money to 
 solicitor 
 wlien not n 
 cliHchartjt?. 
 
 limount of tln' (It'fiiloiitiini ; MuHi 
 
 Payment 
 of 1) • ^haso 
 money net 
 comiM^llcd 
 until title 
 nci't'ptetl. 
 
 Deposit 
 
 forfeited 
 
 when. 
 
 plaintiff'M Hliiirt' will hv chiir(f('(l witii the 
 V. dhirkr, 22 C. L. J. 2(i7 ; 11 P. R. SoO. 
 
 Where, hy the conditions of sale, the inirohaHe money is piiyHhle into Court, 
 payment to tiie solioitor of the party entitled to it, is not a goofl jiaynient, and 
 IS therefore no groimd fordispensin)< with payment of it into Ooiu't : Hluckhimi 
 V. !!lhiri,{l\ 1 Ohy. Cii. 2(IH ; e.xcejit niton the prodtuttion of the written consent 
 of all parties lienetieially interested, (Inly v 'vitied. Where the vendor's solicitiir 
 receives pnirliase money, which the |>nrih.isers are Itonnd to pay in ('ourt, the 
 expense of payment in, nnist he liorne hy the pnrchasers, the estate, or fluid, 
 is not ciiargeahle with such costs ; Jic Rttlicrtituu, 24 (Jr. T^TiT). 
 
 But the purchaser will not he compelled to pay in his purchase ninncv unless 
 he lias accepted the title ; Cntiiks v. Stmt, 1 Chv. Ch. !>") ; Strut v. ihilUttJi 
 v. K. 312; MrDiiniiil v. M,-I),rmi<i, H P. H. 2H ; lo C. L. .1. IMIi; AV/ic-xW v. 
 Pierce, 7 I'. H. 127 ; or, lias waived the right to investigate the title, liy delay ; 
 Ontiirio Hunk v. Sivr, (i P. H. 21(i ; or liy taking possession : I'dtterHim v. ItnUi, 
 (J P, P>. 114 : and see r/vmAs v. (ileitn,H Vxv. 23!» ; O'KerJe v. Taiilor, 2 (ir. 30.5. 
 
 But ))ossession mav he taken in accordance with the contract, under ciivuni- 
 stances not amounting to a waiver, or acce|itance, of title : see Michdtne v. 
 frviiir,lS < Jr. 537; JJarhi/ v. (Jreenlerx, 11 (Ir. .Til ; Wiinle/I v. Trni<)i(lli,2i 
 (Jr. 4(ir). Merely olitaining the keys of a huilding for the |)uriioKe of viewing' 
 the premiKcs, is not a taking possession: /'enp/e.-i /.nnii di. v. Hnihn, 27 (ir. 
 2{)4. 
 
 Tf the jnirchaser make defmilt a re-sale may ))e ordered and the defiiultin); 
 purchaser may lie ordered to pay any deficiency : Ite llortiihioiik, 12 P. I{. .'iill ; 
 .VoW*' V. h'diriirih, 5 Ch. D. 378. In the event of a re-sale heing ordered liy 
 reason of the default of the purchaser, in the ahsence of any condition to the 
 contrary, under the standing conditions of sale. Form X. 43, his deiKisit and 
 all other jiayments on account are forfeited and cannot lie recovered hy him, 
 even though the jiroiiertv should realise a larger iirice on the re-sale : Tilt v. 
 Knapp,i)F. R. 314; 2C."L.T. mi ; Kr parte liarr,//, L. R. lOChy. .512; Thoma* 
 v. Brmm, 35 L. T. N. S. 237 ; Hosenhcn/ v. O'ok; S C^. B. I). 1()2 ; and see Whclan 
 V. Couch, 26 Or. 74 ; ro/linH v. Stiimon, 10 Q. B. D. 142 ; 48 L. T. N. S. 82S ; biit 
 see Cannon v. BohertK, 31 Beav. (113 ; and a i>Hrchaser who has forfeited his de[)Osit 
 liy default, is not entitled to recover it, in the event of the title jiroviug bad 
 on a snhsequent re-sale of the jiroperty : Soprr v. Arnold, 35 Ch. 1"). .^ ; 36 
 L. T. N. S. 330 ; 37 Ch. D. iXJ ; .57 L. t. N. S. 747. 
 
 Costs of re- The costs of the re-sale, and also any deficiency on tiie Hul)se(|uent sale, 
 Bale, and are also usually ordered to lie borne by the defaulting jinrchaser : He llnrni- 
 deflcieucy, l,rook, 12 P. R. 5!H ; but when the laiid sold at an advance, and the profit 
 how borne „,jj^ more than sufficient to cover the costs of the re-sale, the defaulting 
 
 imrchaser was relieved from the payment of the latter costs : Tilt v. Knapp, 
 
 nupra ; Oiitarin Bank v. Sirr, t} P. R. 277. 
 
 Interest on Interest on Purchase Money -Aents and Profits. The liability of the 
 purchase purchaser for interest, depends on the tenns of the contract of sale. In the 
 absence of any sjiecial stipulation in the contract, it would seem that the 
 liability to pay interest commences on the day fixed by the coiitra«t for 
 comjiletion of the contracit, from which time the purchaser also hecoinen 
 entitled to possession, and to all ix-nts, and profits, subsequently accruing: 
 Endaile v. Stephennon, 1 S. & S. 122 ; Peoplcx Loan Co. v. Bitcon, 27 Gr. at p. 
 .SOI ; Vanzaut v. /iiirki; ;« II. C. C^ B. 104 ; but see Harri.ion v. Joneph, 8 
 P. R. 2i)3. But where the contract provided for jiayment of the nurchaxe 
 money liy instalments, but was silent as to the time when jiossession sliould he 
 given, the ]iurchaser was held entitled to the rents, and iirofits, from the date 
 of the contract : Brad/i v. Keennn, P. R. 2()2. A purchaser is entitled to a 
 projier projiortion of all rents paid to the vendor in advance : LiKcomhe v. (iron, 
 G P. R. 271. 
 
 Where the contract provides for payment of interest in the event of any delay 
 in completion not attributable to the vendor, the purchaser cannot relieve 
 himself from liability to jiay interest bv dejiositing tne money in a hank on 
 notice to the vendor : Bileii'to Streatjidd, 34 Ch. D. 38ti ; 5« L. T. N. S. 4S. 
 
 money 
 from what 
 time pay- 
 able. 
 
'liT^i 
 
 MASTER 8 OFFICE — SALES. 
 
 203 
 
 tlie abNenco (if Rule 106. 
 
 oliasor en- 
 titled to. 
 
 Thf liability of the purchoHer to pay iiitert'Ht, may, in 
 cxproNH Htipulatiou as to the payiiii'nt of iiitiTCHt : i<c Th oiii p.wu, Jiifi()ar \. i,i,iUi\ity ot 
 l)ick»m, 2 Ciiy. Cli. !!••), Vn> (|ualitif<l l)y delay on the [lart of the vendor, purcliaBer 
 fitlier in making title, or Kiviiip possesHion. In Hueli a eaMe interest will not |Ii"*lifieil 
 Ix'gin til run until the purchaser could safely have taken possession, and ''y'^'oy of 
 11 mffi(tiilty res]M'eting the conveyance, may jnstiJFy his not taking jiossession : „""|^i°Ji," 
 Rat' V. (iri/iIcK, 3 Chy. Ch. 4(>-l. Where there are several jiarcels included in title, 
 the inuchase, iiossession ca)niiit be safely taken of any until the tith^ is made 
 to all; Ldiril v. Piitiiii, 7 Out. 187; 20 (l L. .1. .'Wo. AVliere the property is 
 unproductive, the piu'chaser niiiy, where the completion of the contract is 
 delayed by the vendor, be exonerated from payment of interest ; where it is 
 lirofiuctive, but the rents, and profits, are l"ss than the interest, the vendor 
 may lie all<iwed to retain the rents, etcr., and the jiurchaser may lie relieved 
 fniin paying interest ; and wheri' the rents exceed tlu^ interest, the purchaser 
 may, luitwitlistanding the delay, lie ordered to pay interest from the date 
 fixed for completion, taking the rents and jirofits: Bank itf Montrtiil v. Fn.r, 
 U R K. 217 ; The /'coplm Li'ini <;,. v. JinvKii, 27 (tr. 204. 
 
 (trowing crops on the liuid at the time of sale, pass to the jiurohaser, imless Clrowing 
 HX]iressly excepted in the (Minditions of sale : Mrllomill v. Phi/)/)!!!, 1 Ont. 143 ; crops, pur- 
 
 MauKoii V. Afinimiii, 10 P. H. 155 ; 20 C L. .1. Xi ; and he is entitled to com- "" 
 
 IH'nsatiiin if they be removed before he gets possession : Ih. 
 
 Where the purchaser pays his jiurchase money, and is let into iMissession, KescisBion 
 but ujion a reference it is found a good title cainiot be made, and the contract of contract. 
 is rescinded, the purchaser is bound to re-deliver iiossession on lieing reiiaid his 
 purchase money, and if he insist on interest on the purchase money, ne must 
 submit to account tor the rents, and profits : Siiiiwrs v. Krh, 21 Gr. 289 ; and 
 see Turlv.i/ v. Evttii.i, l.S C. P. 214. 
 
 Where a jmrchaHer is let into possession, pending an investigation of title. Interest on 
 he is bound to jiay interest, although the possession extend beytind six years : purchaBe 
 see Birch v. Joii, .'{ H. L. C. .5(55, where the purchaser was in jiossession forty "'""ey. 
 years before completion, and the agreement provided that interest should 
 not run until the comjiletion of tlie contract, see also Toft v. Stercnuoti, 
 5 D. M. & (t. 735 ; but it would seem no more than six years arrears can b«^ 
 recovered as against the land : Ainii v. Mitchell, 21 <ir. 510, overruling on 
 this ]Kiint, Orrat Western Bji. Co. v. Joiien, 13 (ir. 3.55 ; but when the purchaser 
 (lies, and no intervt-ning incundirance exists, in order to prevent ciitniity of 
 action, the full amount may be recovered even against the land : Airey v. 
 Mitchell, mipro ; Howeren v. Brndburii, 22 C4r. !)(!. 
 
 Where the contract provided for giving a mortgage to secure part of the ^,nv^; evi-' 
 purchase money, but omitted to state that the mortgage was to bear interest, deuce ad- 
 liarol evidence to show that that was the real understanding of the parties was niitted to 
 lulmitted : (inulU v. Hamilton, 5 (ir. 102. show 
 
 terms of. 
 
 Delivery of PoSBesBlon. — Where the conditions of sale provide that posses- Delivery of 
 sion may be taken by the jiurchaser without waiving his right to investigate iiossesBion 
 the title, he may take possession without waiving his right : Bolton v. .S'c/ioo/ to P'.r- 
 Bmiril, 7 Ch. D. 7()() ; V)ut in the absence of any such condition, if a purchaser gjjg^j*^. 
 at a sale imder a j\idginent, enter into possession without the sanction of the 
 Court, he may Ix' held to have accepted the title ; Danl. Pr. (ith ed. 1003, and at 
 any rate may l)e ordered to jiay his pm-chase money into Court, notwithstand- 
 ing his objecting to the title : Pattcrmn v. Rohh, ('» P. R. 114 ; but where, after 
 a ijurchaser had taken possession, the vendor's solicitor delivenid an abstract of 
 title and answered reqmsitions, it was held that the vendor had waived the right 
 to treat the taking of possession as an acceptance of title : Ahlirell v. Aldwell, 
 () P. K. 183; and see Hordon v. Ilarmlen, 18 (ir. 231. Where, under the 
 conditions of sale, a purchaser is entitled to jKissession, the letting him into 
 the receipt of the rents and profits, is not a sufKeient delivery of possession : 
 The PcnpliH Loan Co. v. Bacon, 27 Gr. 2'M. 
 
 A summary application for delivery of ixissession under this /?«?c can only Summary 
 be made against parties to the action, or strangers who have obtained jK)8se8- application 
 sion pemhnte lite: Bank- of Montreal v. Wallace, 13 (ir. 184 ; Truxt rf- Loan Co. af,FP°**^^' 
 
WIW» 
 
 * 
 
 ■!,* 
 
 w 
 
 1204 
 
 OFFI0EI18 AND OFFICES. 
 
 V. Start, (i I*. K. !M) ; where a sti'itiiKiT ih in prwMeNMion who liiw not olitaiiipd 
 pwHe.sHion fi('ii(/rntv lite M\ actii)ii must be lirmig'lit. 
 
 Where tho purcliaser accepts a <'iinveyanc(s or vesting order, knowing tliiit it 
 
 Htranffer to tlie suit in in ailverne posseHsion, he cannot afterwards cliiiiu com- 
 
 • a pi'nsntion for dehiv in recoverinjf |)OHHession ; Hull v. Hin)iei\ (> P. \{. \\[\ ; ,l„UJf,' 
 
 anco. effect ^. /;,,/.,.,•, 4« L. T.'X. H. WM ■ 11 (l H. 1). 255; uidess posMession lie witiiiiAl 
 
 contrary to the express stipidation of tlie contract : Mrhrr v. Hurhir, U 1', K 
 
 137; 21 C. L..I. 418. 
 
 Aule 106. 
 
 Purchaser 
 aucuptlnK 
 uonvov- 
 
 I'lirehBKur 
 to KOO to 
 disc till r^e 
 of incum- 
 brances. 
 
 Accept- 
 ance of 
 convey- 
 ance, effect 
 of. 
 
 Ontgoiu'-s, 
 how pay- 
 able. 
 
 Taxes, by 
 whom pay' 
 able. 
 
 •Compensa- 
 tion, wlien 
 allowed, to 
 purchaser. 
 
 Misrepre- 
 sentation 
 
 Incumbranoes. -A pnrcliaser before acce|»ting a conveyance, or vcHtiiij; 
 order, or consenting' to tlie payment out of Ids purchase money, slioidd sec tliiit 
 all incun\lir.inces are paid off, winch the vendors are hound to discharifc. 
 After conveyance, or vcstiuj,' order, his right to have incumlirances discliargwl 
 out of his |)urchase money is gone, and he nuist rely on his covenant if any : 
 />'//// V. Ifiir/in; i; P. 1{. 2(1; S. ('., before .Spragge, C,, Felu'Uary 1, IH?,'!; /;,■ 
 llurh; I'leh v. lUirk; (I I*. 15. !tS ; Kin. aid v. Kiiii-iiid, (i I'. H,"!i;t; .A/////c v. 
 nikrr, 11 (,}. 15. I). 255; 48 L. T. N. S. (Wd ; unless perhaps, where lui wa^ 
 ignorant of such incumbrane s when he accepted the convevance : see 
 Tiinin- d' SMtmi, l3Cii. D. l.SH ; lli'iniiiiii \. Mrhoiii/al/, M l». K. ^(K); hut set 
 L. T. .lour. 387 ; U'llisnii \. Jtnlism, 10 I'. H. 324 ; or unless n(» title at all has W.. 
 c')nveye<l, as where the land had been .sold for taxes; Tiirrifl v. Tiiriill,'V.}l, 
 1 12; and see ./r</(c.v v. t'lijl'iu-il, 3 (Mi. I). 77!l. But a conveyance by the vendor 
 to a third iiarty, even though made at the jnirchaser'.s request, will not nrevciit 
 the latter, after the conveyance, from claiming to have incumbrances discliar^Ml, 
 to which tlie cDveiiants in the deed may not extend, but which, mider the 
 contract of sale, the vendor was bound to pay off : McLcnnini v. ('hi'iinin, 37 
 U. C.C^B.3()1. 
 
 A vendor cannot be required to jirocure the discharge of a mortgage in fee 
 made by a p;<rson who had t>nly a life estate : Itv Pcnlun d- Sir. iitsmi, 10 
 Ont. ()«». 
 
 Ground rent and other outgoings, acv ruing whilst the purchaser is kept out 
 of possession through the default of the vendor, are held to be iiayable by flic 
 latter ; /'rn/ilrx hum Cn. \. ItHMn, 27 <4r. 2i)4 ; and see Fiskcu v. lI'/vV/c, U Gr. 
 248 ; Kill i/iKii'iY, if this is so, where the purchaser, on the completion of the 
 contract, receivers the rents, and profits, for the period during which such out- 
 goings accrued. 
 
 A purchaser is entitled to have instruments registered against the title 
 creating an apparently adverse claim, removed by the vendor, even though 
 they be registered by persons having no apparent title : Ki'efW v. M(K''ti, 
 10 P. R. 345. 
 
 Where a vendor contracts to sell imly such right or interest (if any) as he has, 
 he is nevertheless bound to convey such right or interest free from a'ly exi.sting 
 incumbrances created by himself : (Jould y. Hi nni milium, Ihidleii <l' hintrifl Hank, 
 58 L. T. N. S. 5(>0. 
 
 Taxes, — The vendor is bound to |)ay a jiroportionate part of all taxes accruinpt 
 . up to the time fixed for the completion of the contract, even though not 
 actually impose, at the time : ISiin/,- of Muntmil v. Fox, OP. R. 217; /Vi'^m 
 Lnan t'n. v. Ilarnn, 27 (Jr. 2!t4 ; unles.s tlie by-law im)>osing the taxes, expressly 
 l)royides that they shall not form a charge on the land until a day after that 
 when the title is made out : Hnrrison v. Joseph, 8 P. R. 293. 
 
 Where the purchaser i)ays taxes accrued before the time he is let into \m- 
 session, he is entitled to be refunded out of his purchase money : Ynurex v. 
 Akoinhmtk; 13 C. L. J. 220. 
 
 Compensation. — Although a vendor is allowed great latitude in the state- 
 ments, or exaggerations, he may make, as to the general (pialities, and 
 capabilities, v' land he is about to offer for sale, still he will not be jiemiitted 
 to make misstatements, and misrepresentations, as to matters of fact, which 
 would naturally have the effect of inducing parties resident at a distance to bid 
 for the property. Therefore, where an advertisement of sale described the pro- 
 
1 '.If ■ 
 
 MAHTER 8 OFFICE — SALES. 
 
 205 
 
 iierty aH iH'iner " ii fann of »'iKhty-fimr and a half acrcH, twenty iwnvH cleared an<l Rule 106. 
 
 teiicwl," oil tilt' faith of which the plaintiff piirchaMed, when, in fact, there wan j„ n,,iver- 
 
 tidt any <liivrinj,' or fencing, eoni|K'nNation for the iniHrepre.sentation wan tlHoniontB. 
 
 uUowi'd ; si^imiiirr.s v. (>' Donolicr, 2H (Jr. 207 ; H (Jnt. App. Kil ; 11 S. C. li. IlflH; 
 
 and HH) H'' Mi'ri'iii/ <l' Krrr, 13 Ont. 414; Imt wee Oslituni' v. Fo nnv rs <!• M. 
 
 li. Si'i/.,i> <>!'. •i-i>. Where a material uiiNrepresentation hax heen made hy the Kvtdeiico 
 
 vwuiors, it i^ not nece«Nary for the purchaHer to prove, that the repreneiitation o' inlHre- 
 
 wiiskiiiAMi li.\ the vendorH to lie falne, or was made recklewHly ; and in the l"""*^"'"'" 
 
 absence of evidence to the contrary the purchaMer will W preHumed to have "°"" 
 
 lxm(?lit oil tile faith of hucIi reprcMentation : /{idifiinr v. /liinf, 4ii L. '1'. N. S. 
 
 48i)' 2<t Ch. 1). 1; ./"//'■■■< v. Itimmi-r, 4HL. T. N. S. Ill ; Hce however, Jiillff'c\. 
 
 Buki'f 11 <,'. I!. I). -W); 4H L. T. N. H. !»(!(); Siiiifli v. Lninl <l> y/i-».sr J'r,',jin-li/ 
 
 Co., ^'^ li. 'I. N. S. ">;W ; Til L. T. N. H. 71S ; Imt where it ih ,sliewii that the pur- 
 
 cliastT l)oU((ht witli knowledf^e that the Htatemeiit was untrue, (MJiiipeiiNation 
 
 will l)e refused : ('iiniiirlun'l v. /''rrri.s, H V. R. 28! ( ; and Nee Ciin-i'ii v. I.illli\ M 
 
 dr. 2.M); Imt see Utt v. Iti(ii<l(tll, 4!t L. T. \ S. "1. Hut tli. hict that the 
 
 iiiu'L'hii.'ier was in actual oc<;upatioii of the projierty liefore tiic sale, does not 
 
 (linentitle him to conipeiisation for a deticiency in the area represented to t)e 
 
 .sold by the particulars : Re Axjiinall.: <l' J'oin'lf, «o L. T. N. S. fm. 
 
 The purchaser may \m entitled to comjK^nsation for delay in making tmt the Coiiijmiisa- 
 titlo: )>Hdhii \. Jii'irzi/, S Cliy. 
 
 Or (leliver- 
 
 L.T..N. S.1H;18^^™''««- 
 r deficiency of land ; q j^, 
 lvertise<l, and the land only con- \,y j\y 
 Wiiri/r/l V. Trenuiilh, 24 (ir. 405 ; ^/j. ,,g__^ 
 'lilti'iniitr, L. R. 8 Va{. 1)03 ; and see ddiindo, I'l-fmiinviit L. il' >'. ency oT 
 (Jr. mm; lie Fmirett A' IlulmcK, (11 L. T. N. S. 105. Hut a land. 
 
 . . Ch. 81, or for delay in deliverili),' po.sHession ; tion for de- 
 Thmmtx v. liiul„n, L. R. 8 ftej. 120; xMnmioi v. 'M^i„.„ii, 10 P. 1{. 155; 20 »>; J" J'"*''- 
 C.L..I.33; R«iiitl liri.stol Ci. v. lii^mUKli, p Ch. 1). 3'.tO; i)r f()r de.stnicti()n ()f ,3 ",'_ 
 the property hy fire before the confirmation of sale ; see 
 
 8 P. K. 258'; hut see Raiinn- v. i'lr.^/oii, 14 Ch. 1). 2!t7 ; 43 ^. . . .,. .,. xo , x^, ,„„ 
 Ch. I). 1 ; 44 L. T. N. S. 7H7 ; 50 L. J. Ch. 472. So, ul.^o, for deficiency of land ; q^ {^^^^^ 
 thus, where 3(K) acres "iiiortf or less," was advertise<l, and the land only con- i,y ji,.e. 
 
 taiiied 244 acres, compensation was awarded "^ 
 
 W'liitli'iiinir \. Whiltr ' " ' " 
 
 i'li. v. Veil III/, 18 
 
 veiuhir who sells a parcel of land at so much per acre, whicii turns out to con- 
 tain a greater numlH'r of acre.s than represented in the advertisement, is not, 
 after conveyance, entitled to payment for the excess : t'oKinijlKtia v. Cuttinti- 
 Imm, 5 Out. 704; 11 Ont. A\>\>. 024; and see .VtYi v. JlcLciiii, 23 C. L. J. 
 3,52 ; 14 S. C. K. <(32. 
 
 The ritfht of a purchas«'r to coni|)eiisati('n for deficiency in fpiantitv may be 
 excluded by tlit^ conditions of sale: /^■ T<r)\i/ d- W/iih; 32 Ch. 1). 14; 54 
 L. T. N. H. 353. Wheiv, however, t\w purchaser, by the conditions of 
 sale, is dejirived of the right to compensation for deficifsncy, and such deficiency 
 is material, sjiecific performance of the contract would not l)e decreed at the 
 suit of the vendor except on the terms of his making coini)ensation for the 
 deficiency : Jk 
 
 A purchaser may also be entitled to compensation for failure to make title 
 to part of the i)roi)erty sold, although he may lie precluded by the conditions of 
 sale, fnnii objecting to carry out the sale (jii that ground : L'nijlinh v. M iirrai/, 
 4!)L. T. N. S. 35. 
 
 A purchaser is also entitled to compensation for dilapidations committed by Compousa- 
 [larties in iKwsession, after sale, and before completi jii : Fixken v. llV/f/c, 11 tion for di- 
 Gr. 245 ; Tliiiiii<t.s v. liu.don, mijira ; but he is entitled to comiwnsation for the lapidation. 
 removal of growing crops : Maiv .. •• Maimm, 10 P. R, 155 ; 20 C. L. J. 33 ; 
 Rinjal HrixUil Sncii. v. BunutKl, 35 Ch. D. 31)0. 
 
 Componsation niiiy also be awarded for the supi)res8ion of material facts ; por sup- 
 thus, when the property offered for sale was a mill site, and mill, and the pressioii of 
 vendor had previously sold the ri^ht to take water for the purpose of floating material 
 logs, which fact was not communicated to the [rtirchaser, it was held that this facts, 
 was a subject for comiiensation : WanlcH v. Trctwuth, 24 Gr. 405 ; or the con- 
 tract may be rescinded : see Hci/wood v. Mulhtlieu, 49 L. T. N. S. (5.58. 
 Notwithstanding a condition of sale that misdescription should not avoid the 
 8ale, it was held that de.scribing the vendor's title as a lease, whereas it was an 
 underlease, entitled the i)urcliaser to rescind the contract ; Re Bei/fK.i d- MaatevK, 
 39C1,.D.110;59L. T.X. S. 740. > ^J 
 
 "K* 
 
 "% 
 
m. 
 
 ♦206 
 
 Rule 106. 
 
 After con- 
 veyance, 
 right to 
 compensa- 
 tion for de- 
 fects in 
 title, is 
 gone. 
 
 Exception, 
 where mis- 
 statemuuta 
 in adver- 
 tisement. 
 
 OFFICERS AND OFFICES. 
 
 After oonveyance, oi vesting order, th« purchaser'H right to compensation 
 for defects in title to which his covenants, if any, do not extend, is usually 
 gone : A/lcn v. Rtchai-Usim, 13 Ch. D. 524; Mansun v. Tluickiii; 7 Ch. 1). 020; 
 
 ic Turner .I- Skdtmi, 13 Chy. D. 130; 41 L. T. N. H. (i()8; Palmer v. Johnmn, 
 2 Q. B. D. 32 ; 13 (I B. D. 351 ; 51 L. T. N. S. 211 ; where the conveyance 
 las been mivde to a third party : and see McLennan, v. Vhegtiin, 37 U. C. Q. B. 
 
 Specific 
 perform- 
 ance wiien 
 not en- 
 forced. 
 
 Misrepre- 
 sentations, 
 ground for 
 rescission. 
 Dower, 
 purcliaser 
 entitled to 
 release of. 
 
 Koference 
 as to title, 
 when or- 
 dered. 
 
 Waiver of 
 right to 
 reference, 
 
 1 
 
 has 
 
 301. 
 
 But misstatements, or suppression, in the advertisement of a sale by the 
 Court, of material fiicts, may form the- ground for compensation even after 
 conveyance, so long as the fund remains in Court : Cnnn v. Cann, 3 Sim. 447 ; 
 /Sii/l V. Jlurjier, (J P. R. 3() ; TiuyHI v. Tarrill, 7 P. R. 142 ; and see Ilnnwrv. 
 nilUamn, Jo. & Ca. 274 ; Jie Perrutm, Perriam v. Perriam, 49 L. T. N. S. 
 710, and see Palmer v. Jnhnson, 13 Q. B, D. 3.51 ; or the sale, may, after or before, 
 conveyance, be set aside : Sa-'^h v. Waodersim, 52 L. T. N. S. 49 ; Brewer v. 
 Brown, 78 L. T. Jour. 79, and so also Htii)ulations in the advertisement for the 
 delivery of possession, if not carried out, may be the subject of compensation 
 even after a vesting order has been taken, so long as the i)urcha.se money 
 remains in Court : Barber v. Barber, 11 P. R. 137 ; and where a purchaser han 
 by mistake or inadvertence taken a vesting order before an incumbrance has 
 been discharged which lie is entitled to have discharged, so long as the 
 jmrchase money remains under the control of the Court it may be ordered to be 
 applied in discharge of the incumbrance : Flemiivj v. Mc/Jouyall, 8 P. R. 200. 
 
 The Court will not enforce specific i>erformance of a C(mtract, with conn)en- 
 sation for misdescription, where the sale was made by a vendor in a fiduciarj* 
 capacity, and any cestui r/ue trust would have a right to complain of the sale, if 
 so enforceil. as a breach of trust : Osborne v. Farmers >{• M. li. Socii., 5 (ir. 326 ; 
 Mortlock v. Buller, 10 Ves. 292; Guodwin v. Fielding, 4 D. (i. M. & (J. 104; 
 Sneizeln v. Tlwrn, 1 .Tur. N. S. 125; Dunn v. Flood, 28 Ch. D. 58() ; 49 L. T. 
 N. S. G70 ; and it is immaterial whether the trustees are plaintiffs or defen- 
 dants : lb. ; sed ride Sra v. McLean, 23 C. L. J. 3.52, 14 S. C. R. 632. 
 
 The misrepresentation of material facts may entitle the purchaser to iiave 
 the contract rescinded: (•'ale v. Hubert, <) Ur. 312; Redi/ruce v. Hurd, 20 
 Cii. D. 1. 
 
 The purchaser is entitled to a cimveyance with bar of dower by vendor's wife ; 
 if she refuse to bar dower, the j)urcha8er is entitled to an abatement, or to 
 rescind the cemtract : Kendrew v. >Shewan, 4 Gr. .578; VauNorman v. 
 Braupre, 5 (ir. 599 ; or to have a ]iortion of the purchase money, sufficient' to 
 ansvver the dower, set apart until the wife's death, and the interest thereon 
 paid to the vendor during his wife's life : see Skinner v. Ainswtirth, 24 Gr. 
 148 ; and Lnuif/ii'iid v. ,S(ubbs, 27 (ir. 387. As to the mode of comimting dower 
 ill an equity of redemption where the dcnver has not been assigned, but the widow 
 has been in jiossessioii of the land : see Rr Percy, Stewart v. Percy, 11 Out. 
 374. 
 
 Reference as to Title.- The inclination of the Court is in favor of giving the 
 imrchaser a refeience as to title, if he desire it. And it is (mly when the 
 evidence is clear that tlie purchaser intended to waive, and has actually waived 
 his right of examining tlie title, that a reference will be flenied : Mirlicltrec v. 
 Irwin, 13 (Jr. at p. 543 ; and see Jaeksou v. ./cssnp, (> (Jr. 157. 
 
 On an a])])lication by the vendor to compel the purchaser to pay iiis ]mi'cha»e 
 money into Court, a reference as to title may Im- ordered, if the purcliaser have 
 neither accepted, nor waived his right to examine, tlie title : Cnioks v. *Y/vW, 1 
 ("hy. Ch. 95; ,S7/vW v. Ilallctt,^ P. R. 312: McDcrmid v. Mcl)ermid,^V. R. 
 28 i 15 C. L. J. 13(i ; Klluxmd v. Pierce, 7 P. R. 427. 
 
 Waivkh.— The right to a reference may be waived by long delay, in either 
 demanding an abstract, or making any objecticm to the title : Ontario Hank v. 
 Sirr, (i P. R. 210 ; and see Jiae v. O'eddes, 18 Gr. 217 ; or by taking iws.session: 
 
MASTER S OFFICF — SALES. 
 
 207 
 
 Ikniumi V. Falki; 10 (ir. 498; CummercM Jiank v. McVonmll, 7 dr. 323 ; Rules 
 l>(ttlci:ioii V. Riilil), « P. R. 114 ; O'Cuuiwr v. /iMtti/, 2 Out. App. 497 ; but see 107, 108. 
 Wardcll v. Tiennulh, 24 (4r. 4()r) ; J)(trl)!/ v (Inridees, 11 (Jr. 351 ; Michdtree v. ^yij^t cou- 
 //iw/i, 13 (ir. .537 ; Cmokn v O/eiui, 8 (ir. 239 ; Morin v. irj/A-' «(*/(, 2 Gr. 157 ; stitutes. 
 O'Kei'fi' V. T(ii/l<ir, II). 305 ; Jacksnti v. Jeniiip, (i (4r. 15(). Bu'. it after po.sHession 
 taken, tlie vendor prooeed with the investigatioti of title, and answer requisi- 
 tions the taking of jjossession will be no waiver : liiirrinijIiK v. Oak/ci/, 3 Sw. 
 im\'A/il"-f/l V. AUivi-ll, (i P. R. 183; (lonhnt v. Ilarnilfi., 18 (ir. 231. 
 
 The right of a jHii-chaser to investigate tlie title may In* also waived by liis Circuui- 
 accenting a conveyance, or vesting order : Hull v. llui >,ijr, (J P. R. 3(). So also stances 
 writing a letter aiKilogising for non-payment of the purclia«e money, although from \yliich 
 making no reference to the title ; or accepting a release of dowe" from a person ^av'bo' in- 
 interested in the estate ; or the giving of a mortgage to secure the j)urchase ferred. 
 money, are circumstances from which an acceptance of title may be niferred : 
 Mcl>('ii(ilil v. (inrrett, 8 (ir. 21K) ; but see .lucksdii v. Jr.isiii), (i (ir. 157. But 
 thongli tlie ijurchaser by taking jiossession and dealing with the property may 
 waive his right to comi)el the vendor to make out a goinl title, he may yet be 
 ielieved from payment of his jnirchase money before completion, on showing 
 that tlie vendor has no title at all : JM'niscii v. Fidhr, 10 tir. 498. 
 
 In applying tlie doctrine of waiver, a distinction is to Ixi observed between PossesBion 
 the ciuse of a contract, providing that a gocnl title sliall he shown, and that **''8i with 
 iwssession may be taken before completion ; and ihe case of a purchaser ofijy!;,?^-^^ 
 taking possession before completion without any exMress stii)ulation in that g^jjjg ^g." 
 behalf. There is also a broad distinction between a purchaser going into, or fects ; 
 remaining in, possession, and making structural alterations, knowing of theefteutof. 
 existence of an incurable objection ; and one entt^ring with knowledge of objec- 
 tions which are curable. In the former case he may, although entitled to have 
 the title otherwise made out, Iks held to have waived the particular incurable 
 objection : Re aluai/ <(• AfilU,; 23 Ch. D. 320 ; 48 L. T. N. S. ()2t). 
 
 107. The Master is to settle all necessary conveyances settlement 
 for the purpose of carrying out the sale in case the parties anc"e°"^*^ 
 differ, or in case there are any persons under any disability 
 (other than coverture) interested in such sale. J. A. Kule 
 331. 
 
 See Rule 112. 
 
 No conveyance of the lands of infants is to he settled until evidence is 
 produced to tlie officer settling the same of the purchase money having been 
 iwid into Court, or of the payment into Court having been dispensed with ; 
 and in case.s wlieri^ there is a mortgage for a i)art of the purchase money 
 until evidence is givt'ii to the officer settling the conveyance that such 
 mortgage iiiis been ix^gistered and deposited witli tlie Accountant : Ridi' 1004. 
 The proper evidence of the payment of the purchase money into Court and 
 o| tlie deiK)sit of the mortgage is the certificate of the Accountant or of his 
 (Jiief Clerk. Tlie order for disjiensing with jiaynient into Court can only 
 W made by a .ludge in Chamliers, or the Master in Chambers, or Master 
 inordinary; the Local .hidges of the High Court and Local Masters have 
 no ix)wer to make such orders : Jdilc 41. 
 
 lOS. After a sale under an order is confirmed, the vendor ^,^^[j;|j;j °^ 
 18, forthwith upon demand, to deliver an abstract of title to if no ob- 
 the purchaser ; and if the purchaser does not serve objec- ierve°d! ab- 
 tiona within seven days, he is to be deemed to have accepted demned""^^ 
 the abstract as su^cient. If objections are served, the sufflcient. 
 vendor is to answer them within fourteen days ; and if the objections 
 

 ill! 
 
 208 
 
 Rule 108. 
 
 to aljBtract 
 how (liH- 
 posed of. 
 
 Abstract, 
 delivery of. 
 
 Demand of 
 abstrnct. 
 
 Neglect of 
 purchaser 
 to demand, 
 effect of. 
 
 Nef;lect of 
 vendor to 
 deliver 
 abHtract. 
 
 Abstract, 
 nature of. 
 
 Objection 
 to abstract, 
 how made. 
 
 Determin- 
 atiou of. 
 
 Objection 
 to title, 
 delivery of, 
 
 OFFICERS AND OFFICES. 
 
 purchaser is still dissatisfied, and if the parties cannot 
 otherwise agree, either party may obtain from the Master a 
 warrant to consider the abstract. Chy. 0. 390. 
 
 This and the six following Bides apply to all ca.seH where a reference as 
 to title is made to a Master or Official Referee, as well as to tales by the 
 Court : Ride 115. But where a sale is made out of Court, subject to certain 
 conditions as t(> the delivery of objections to title within a specified time, 
 and before action objections are delivered, the purchaser on an action for 
 si)ecific i)erfonnance being subsequently brought, cannot in the Master's 
 office deliver any further objections : Imperial Brink v. Metcalfe, 11 Ont. 
 4(57 ; except by leave of the Court ; the Master has no jjower to grant such 
 leave: Clarke i: Lanylri/, 10 P. K. 208. 
 
 In sales by the Court, the solicitor of the jmrty conducting the sale, is 
 considered the k'endor's solicitor, and it is from him the abstract must be 
 demanded, and it is his duty to prepare, and deliver it. 
 
 T!ie vendor is only required to deliver an abstract on demand. The 
 demand Hln>uld Ije in writing : see R. S. C. c. 104, s. 91. 
 
 The purchaser may, if he please, investigate the title, without making the 
 demand. And where he made no demand of an abstract, and made no 
 objection to tlie title, for twenty-three months, he was held to have waived 
 his right to object to the title : Ontario Bank v. Sirr, (5 P. R. 270 ; and see 
 Rae V. aeddes, 18 dr. 217. 
 
 Where a purchaser neglects to demand an abstract of title, but l)rii)gs a 
 suit for si)eciiic performance in which the usual reference as to title is 
 directed and an inquiry when the title was first shown, iilthough the 
 Master found the title was first sliown in his office, yet as no demand of 
 abstract hiul bt^en madt! previoiis to tiie suit, the purchaser was ordered to 
 to pay the costs of it : London <t' Caniidinn L. A- A. Co. v. (Irnhnm, \i P. R. 
 051. 
 
 When the vendor neglect.s, on demand, to deliver an abstract, the piirchaser 
 may move to c(mi|)ei liim to do so. Or it would seem if the dchiy is 
 unreasonable, he may apply to be discherged : see Walton v. Arm>triinij,\\ 
 (ir. 37!1. The jiurchaser is entitled to i. solicitor's abstract, and not merely 
 a registrar's abstract, ludess tliere \w an express condition of sale to the 
 contrary. 
 
 Altlunigh tlie taking of jios.session by the purchaser, may amount to a 
 waiver of title, yet if the vendor afterwards deliver an abstract, or jinxjeals 
 with the investigation of the title, he cannot set uj) the waiver: AUlwellw 
 Aldwetl, P. R. 183 ; (iordon v. Hariiden, 18 (ir. 231. 
 
 An abstract may be defined to l)e a brief statement of all material deeds, 
 and facts, necessary to be proved, in order to establish a good title in » 
 vendor. 
 
 After the receijit of the abstract, the purchaser may deliver olijections to 
 the ab.stnvct ; <..</., that assiiming the chain of title therein set out to lie 
 proved, it does not show a good, or any title, in the vendors ; or that the 
 effect of any instrument is not sufficiently abstracted. This class of objec- 
 tions is confiiu'd to the sufficiency of the ab,stract per ae. The olijection.i 
 should be specific, and point out clearly the alleged defect. 
 
 As to the detennination of (|uestions tiuis raised, see Bide lO'.l, iiifni: 
 McManiiK V. Little, 3 Chy. Ch. 2(i.3. After the abstract has been made ixn-fect, 
 or accepted as sufficient, the next step is its verification, and any defect* 
 in the proofs form tiie subject of objecticms to, or requisitions on, the 
 title, iiH i.rovided by Bides 112-114. 
 
 The i)urcha.ser should not deliver objections, and requisitions, on title, 
 until all objections to the abstract are disiK)sed of, or lie will Im' held t" 
 have waivedall objections to the abstract : McMamm v. Little, 3 Chy. Ch. 26i 
 
MASTKR S OFFICE — SALES. 
 
 109. The Master is to determine all questions upon the 
 abstract and the sufficiency thereof; and, if desired by the 
 imrchaser, may require the vendor to make the same as 
 perfect as he can ; and if the vendor neglects or refuses to 
 do so, he may permit the purchaser to supply defects 
 therein, at the vendor's expense. Cliy. 0. 391. 
 
 Where the objections to the abstract are not removed within fourteen days 
 ;ifter service of the objections, it is not necessary to obtain any order of refer- 
 (■iice, in order to obtain the Master's decision ; but the vendor, or purciiaser, 
 iniiv carry the abstract and objections, into the Master's office, and obtain a 
 warrant to consider tlie abstract. 
 
 If the Master hold tlie abstract to be insufficient, and the vendor neglect, or 
 rtfuse, toHU]ii)ly tiie defects, the purcliaser may l)e permitted to do so. This, of 
 c iiirse, will not always Ijt; in tlie power of a purcliaser ; but where deeds are 
 rifc'istered, the ]>urchaser may frecjuently obtain the necessary information to 
 licrfect the abstract from the Registry office. 
 
 A condition of sale that "the examination of title is to be at the expense of 
 tiie pui'chaser, who is to call for only those deeds and jiajiers in my jiossession 
 and under my control," does not relieve the vendor from delivering an abstract 
 of title, even though sucli an abstract be not among the papers in liis jwssession 
 or control: He Biuistead li: Wunnick, 12 Out. 488. 
 
 The vendor is iisually bouiid to verify the abstract, by the production of all 
 documents abstracted, or by proper secondary evidence, where the non-prcKluc- 
 tionof the originals is sufficiently ivccounted for ; and by producing affidavits 
 I'f all facts necessary to bt* jiroved in order to make out title : see Itule 112. 
 
 AgwKl title is not shown until it is both exhibited by the abstract, and tiie 
 Vendor is able and willing to verify it : (li-anijrr v. Lathum, 14 (ir. 2()!1 ; /-"((//• v. 
 Lwegmr, G Jur. N. S. (JOO ; but see /Mini v. /'atmi, 7 Ont. 137; 20 C. L. J. 
 H)>5; Loii I III n li.' CiuiHilian L. <(• A. Vu. v. (Imhaiu, 12 1'. R. 051. 
 
 209 
 
 Rules 
 109-111. 
 
 Master to 
 determine 
 question as 
 to suffi- 
 ciency of 
 abstract. 
 
 Objections 
 to abstract 
 may be re- 
 ferred to 
 Master. 
 
 Vendor 
 m;.y sup- 
 j)ly"dofects 
 in abstract. 
 
 Verifica- 
 tion of ab- 
 stract. 
 
 Good title, 
 
 when 
 
 shown. 
 
 HO. The Master is not to make a report on the ab- Master is 
 stract, but is to mark the objections as allowed or disal-umke^a re- 
 lowed, as the case may be ; and when he finds the abstract to mark ob^ 
 perfect, or as perfect as the vendor can make it, he is to j^°oJ^"| ^^ 
 certify to that effect at the foot or on the back ; and such disallowed, 
 finding is to be final without filing, unless appealed from 
 in the same manner as from a Master's report. Chy. 0. 
 392. ^ 
 
 Wliere the Master made a report on the title, instead of marking the objec- 
 tions "allowed," or "disallowed," the Court refused to entertain an apjieal 
 from his reixirt, but referred the matter back to the Master, to be dealt with 
 i« provided by this Rule : Cockemmr v. liullnck, 12 (Jr. 73. 
 
 As to the time for apiiealing from a Master's report, see Rides 848, 850. 
 
 Ul. After an abstract is confirmed, or is accepted by After ab- 
 tbe purchaser as sufficient, no objection to the abstract is flnued?no 
 to be allowed. Chy. 0. 393. f^'J^Z "^' 
 
 The abstract is accepted as sufficient, if the jmrchaser does not serve any *''''^'^^' 
 wjwtion within seven days after its delivery : Rule 108. It is confirmed, if 
 wf Master disallow the objections, and no apjieal is had from his finding within 
 "K' time limited by Rnks 8 18, 850. 
 
 J.A. 14 
 
\f 
 
 210 
 
 OFFICERS AND OFFICES. 
 
 Rule 112. 
 
 Verifica- 
 tion of ab- 
 stract. 
 
 Notice to 
 deliver ob- 
 jections 
 and re- 
 quisitions. 
 
 1 13. After acceptance or confirmation of the abstract, 
 the verification is to be proceeded with, and the vendor is 
 with all diligence to afford the purchaser all the means of 
 verification in his power, in the manner, and according to 
 the practice usual with conveyancers ; and after having 
 done so, he may serve a notice on the purchaser to make 
 the objections or requisitions, if any, within seven days, or 
 that otherwise he will be deemed to have accepted the title. 
 Chv. 0. 394. 
 
 Veriflca- Verification of Abstract. — The practice of conveyancers, is for the vendor's 
 
 tion of ab- solicitor to give notice of a time and place, (usually his own office), where the 
 stract. abstract will be verified. Sometimes the deeds, and evidences of title, are sent 
 
 to the purchaser's solicitor. So far as the title deeds are concerned, the 
 abstract is verified by the production of the originals, or such of tlieni as are in 
 the vendor's iwssession, and by pr(Klucing certified copies of the deeds, or 
 registered memorials, where the originals are not in the vendor's imssession. 
 Sometimes, however, notarial copies are furnisljed, c//., where a deed cover- 
 ing other lands is in the hands of some third party. In verifying the 
 Title deeds, abstract the production of the title deeds is sufficient proof of their due execu- 
 how ' tion, unless evidence is adduced casting doubt uiKin their authenticity ; see 
 
 proved. Coventry 41. As to how far registered memorials are evidence, and as to 
 how far recitals in deeds are evidence of the facts recited, see K. S. 0. 
 c. 112, ss. 1, 2 ; ikimlem v. lief/. 1. Ont. 178 ; 18 C. L. J. 20<> ; Allan v. 
 McTavish, 28 Gr. 539 ; Raj. v. Guthrie, 41 U. C. Q. B. 148 ; Canada Pervm- 
 nent Loan d- ISavmr/s Co. v. Jioss, 7 P. R. 7!> ; for cases before the Statute, 
 sefe Wishart v. Cook; 15 Gr. 237 ; Oouyh v. McBride, 10 C. P. IW! ; Rv Hiqgim, 
 19 Gr. 303 ; S. C. 4 Chy. Ch. 128 ; Russell v. Fraser, 15 C. P. 375. 
 
 Where the vendor relies on a iK>ssessory title, the possession must be 
 proved by affidavits and the purchaser is entitled to cross-examine the 
 dejwnents : Re BoiiHtcad <£-• Warwick, 12 Ont. 49 ; Mcintosh v. Roqers, 12 
 P. R. 389. 
 
 Other Facts necessary to be i)roved in order to make out the title, e.;/., death, 
 
 facts, how intestacy, heirship, etc., are required to be proved by affidavit ; Ijut statu- 
 proved. tory declarations of such facts, taken on a former devolution of the title, 
 are usually accepted as evidence, and need not be corrolxjrated by aftida\'itj) 
 made in the action. By R. S. O. c. 112, s. 1, recitals and descriptions 
 of facts, matters, and parties contained in deeds, instnmients Acts of 
 Parliament, or statutory declarations tweiity years old at the date of the 
 contract, shall, unless and except so far as they are pro\ „d to be inaccurate, be 
 taken to be sufficient proof of such facts, matters and descriptions ; and see 
 Re Ponton tt- Swannton, 1(5 Ont. WJO ; Re Marsh •(■ Oranvi/lc, 24 Cli. D. 11; 
 48 L. T. N. S. 947. 
 
 Deeds must Where the title is a registered title, all instruments in the cliain of title 
 be regis- must be registered, and any xniregiBtered deeds in the chain of title, must 
 he registered at the exjiense of the vendor : Kitchen v. Murroii, 16 C. P. 
 m ; Bradp v Walls, 17 Gr. 099 ; Fahner v. Ran, 1 Chy. Ch. 24() ; Sweetmu 
 V. Stveetnam, a P. R. 83; Laird v. Paton, 7 Ont. 137; 20 C. L. J. 385. 
 Where a registered deed apiiears on the abstract it is not sufficient verifica- 
 tion of the abstract to produce a deed apparently between the same jwrties m 
 the registered deed, but bearing no certihcate of registration, without in some 
 way establishing the identity of the deed pixxluced with that registered: 
 Mcintosh V. Rixjers, 12 P. R. 389. 
 
 Copies, In the absence of any express condition of sale to the contrary, tlie vendor i« 
 
 when to be bound to fiirnish, at his own exiiense, to the purchaser, copies of all instruments 
 furnish ed relating to the title which are not of record : Re Charlts, 4 Chy. Ch. 10. . Heii" 
 by vendor, ajgo br)und to furnish copies of all deeds registered by memorial, hut it w 
 
 tored at 
 vendor's 
 expense. 
 
MASTER S OFFICE — SALES. 
 
 211 
 
 Veiuloi' 
 may he 
 bound, not- 
 withstand- 
 ing such 
 conditions, 
 to prove 
 title. 
 
 Court will 
 not pass off 
 a liad title, 
 knowingly. 
 
 held not of deeds registered in full : lb. ; but see Hurrhon v. Joseph, 8 Rule 112. 
 P. R. 2!)3 ; but in a later case It was held by Street, J., that the vendor is bound 
 to' prwiuce and deliver to the purchaser certified copies of all deeds, of which 
 he caimot jffocluce the originals, whether registered in full or not : Mclntoshx. 
 Rdijcrs, 12 P. R. <***!) ; and see Bolter (0 Ontario Jnvt. Asuoc. 1(5 Ont. 259. 
 
 The ordinary liability of a purchaser to protluce all necessary evidence to Liability of 
 make out a good title, and to deliver on completion the original deeds, or vendor to 
 copies of such as are not in his ])ossessi<)n, may be qualified by sjiecial furnish 
 conditions of sale. Where special conditions are imposed, they have to '^*'^'^.^„ ^ . 
 be set out in full in the advertisement : see Rnlr 04. Special conditions ^y cJ,,,. 
 of this kinil sliould not be unnecessarily stringent, as they are calculated dftions. 
 to damp the sale. Thus where the jjroof of title was involved in no diffi- 
 culty a condition of sale that "the vendor is not to be boiuid to give any 
 evidence of title, or any title deeds or copies thereof, other than sucn 
 ,18 are in his possession, or produce any abstract," was held to be very objec- 
 tionable, ancl one that should not be sanctioned by the Master, even by 
 consent : McDoiuM v. Gordon, 2 Chy. Ch. 125. 
 
 But it seems that even such a condition would not (exempt a vendor from 
 otherwise showing a good title : Canada Permanent Baildimj Soeicty v. Wallia, 
 8 Gr. 3G8; Mclntonh v. liofiirs, 12 P. R. 389; 14 Ont. 97 ; Seru.t, where the 
 vendor purix)rts to sell only such title as he has, Ijut even then, if it can ))e 
 shown by the jmrchaser that the vendor has no title at all, the contract will 
 not be si)ecifical!y onfovced against the purchaser : Leslie v. Preston, 7 dr. 434 ; 
 Jones V. Clifford, 3^Ch. D. 779; Darlington v. Ilarnilton, Kay 550; but see 
 Uumc v. Pocock, L. K. 1 Chy. 379 ; Hume v. Bentley, 5 D. G. & S. 520 ; even where 
 a vendor a<lvertises to sell only such title as he has, he is Ixjund to convey that 
 title free from any subsisting incumbrance : Goold v. Birmiiujham, Dudley <[• 
 Dintrict Bank, 58 L. T. N. S. 5(>0. The Court will not knowingly pass ofY a bad 
 title, by the aid of siKscial, or misleading conditions : Klse v. Else, L. R. 13 Eq. 
 l!K) ; ^eton 1300, 1395. 
 
 The vendor is bound to procure the discharge of Crown Bonds aflfecting Crown 
 the land : Re Charles, 4 Chy. Ch. 19. Crown Bonds of the Province of bonds. 
 Ontario, are no longer a cliarge on land of the obligor, unless registered 
 against it : R. S. O. c. 94 ; Be Fraiiklin, 8 P. R. 470 ; nor are Crown Bonds 
 of the Dominion : 51 Vict. c. 30 (D). The vendor is also bound to remove 
 certificates of lis pendens registered against the land : Bohier li- Ontario Invt. 
 Amoc., l(j Ont. 259. 
 
 The vendor is not bound to give evidence, negativing the existence of Taxes, and 
 arrears of taxes, or other incumbrances : Thompson v. Milliken, 9 (W. 3.59. incum- 
 As to punishment for concealing ineunibrances, or falsifying iwdigree, etc., ^^I'lnces. 
 after written demand of abstract : sec R. S. C. c. 1()4, s. 91. But he is 
 Iwund to iiave removed from tlie register or otherwise mdlified any registered 
 instrument, a|)pearing to create an adverse interest in the land, even though 
 such instruments puriKirt to be made by parties having no api)arent title : 
 Knfer v McKay, 10 P. R. 345. 
 
 As to execution of deeds, by the Trust <t Loan Co. : see 25 Vict., c. 72 ; Trust Deeds by 
 A: Jjonn Co. v. Afonk, 14 Gr. 385 ; by Canada ( 'omiiany ; Woudhill v. Sidllnui, T. & L. Co. 
 UC". P. i,;.-; ; Fell v. South, 24 U. C. (^ B. 19(1. 
 
 The Canada Company is not exempted from giving ordinary covenants for 
 title: see >icarlctt v. Canada Co., 1 Chy. Ch. JK). 
 
 As s(Min us the vendor's solicitor considers the verification of the abstract 
 is eomi)lete, lie should serve notice on the imrchaser to deliver objections, 
 and requisitions. 
 
 The blaster has no jurisdiction to permit further objectifrtw to \te delivered 
 after tlie time limited by this Pule, but the Court on sjx'cial apjdication 
 for tiiat ])ur|K)se may pennit further objections to be delivered : Clarke v. 
 Lnniihii, 10 p. K. 2(»8. And where under the conditions of sale, the time 
 for putting in objections has expired Iwfore the reference to the Master 
 takes place, no further objections can be delivered in the Master's office : 
 Liipnrn! Hank v. Metcalfe, 11 Ont. 407. 
 
 iV Canada 
 Co. 
 
 Covenants 
 liv Canada 
 Co. 
 
 Notice to 
 deliver 
 (ibjectious, 
 service of. 
 
■u 
 
 212 
 
 OFFICERS AND OFFICES. 
 
 Rule 113. 
 
 Objections, 
 and re- 
 quisitions, 
 to wliom 
 to be de- 
 livered. 
 
 Requisi- 
 tions on 
 title. 
 
 Objections 
 to title : 
 
 113t Upon being served with such notice, the pur- 
 chaser, if dissatisfied, is to serve his objections or requisi- 
 tions within the time thereby limited ; and the Hke course 
 is to be followed upon such objections or requisitions as is 
 prescribed by Eules 108, 109, and 110, in relation to the 
 abstract. Chy. 0. 
 
 396. 
 
 Possession, 
 inquiry 
 should be 
 made as to. 
 
 No longer 
 construc- 
 tive notice 
 of title. 
 
 Purchaser 
 need not 
 inquire 
 as to regu- 
 larity of 
 proceed- 
 ings. 
 
 But must 
 see that all 
 necessary 
 parties are 
 bound, etc. 
 
 Requisi- 
 tions, bow 
 adjudi- 
 cated on. 
 
 Requisitions on, and Objections to, Title.- If tlie inireliaser is di.sisatisiied 
 with thf ju'oofs of title luUluced l)y the vendor, he must deliver his objectiiins, 
 and reqinsitioiis, witliiii seven days after receipt of notice so to do, or he will 
 Ix.' deemed to have acctijited the title. 
 
 The existence of an easement undisclosed by the particularK was held a valid 
 objection, altliough tlie proi)erty was ofl'ered "subject to any e.xistiiig public 
 and i)rivate rights of way, and other rights and easements of whatever natuif " ; 
 Hcinvoml v. Miilldlifii, 4!) L. T. N. S. t]r)8. The existence of registered 
 der^ds hy iiarties apparently hivving no tith' is a valid olijection : MtKua 
 v. Kt('ki\ 10 P. R. 345 ; the fact that the sale was by trustees under unneces- 
 sarily dejireci.ative conditions is also a valid objection : Rv liuvncr, 53 L. T. N.S. 
 4t»i). ■ 
 
 Tht' existence of a public road across tlio land was held a valid objection to 
 the title, although a resolution of the Municipal Council to closer it, Jiiul been 
 pa.ssed : KrovKhicn v. fiutjc, 10 (Jr. 572. So also is an outstanding claim to 
 dower : (ifnnblc v. Ouninwriion, 9 Gr. 1113. So also is the lunacy of a previous 
 owner of the land : Francisw St.Ocrmnin, (J (ir. GSO. Ho al.so is tiie fact tliat 
 the vendor, an attorney, claimcil througli a v.ill pre]>ared by himself : <!ruri! v. 
 BasUird, 3 Phil. (!21. So al.so is the fact that the title came tlinuigli a will, 
 whereby the testator ])urported only to devise a moiety : Stapi/ltoii v. Scatt, Hi 
 Ves. 273; and where the validity of the vendor's title deiH'uded on the fact of 
 his having jnirchased without notice : Freer v. Haisc, 4 D. M. & (i. 4!)5 ; but a 
 sujiposed equity in a jierson who died ui)wards of fifty years ago, where 
 the jx)ssessi(m since that time had been in another, and the ^•en(l(lr had a 
 good legal title, was held no objection : Doritt v. Ihomas, lO (ir. 21 ; Mcin- 
 tosh V. JUmrs, 12 P. R. 389 ; Imprrinl Bank v. Metcalfe, 11 Out. 407 ; ^.f 
 Shortt <£• Howard, before Boyd, C, 21 Mar. 1888. 
 
 Inquiry should always be made as to the possession. If a stranger lie in 
 possession, the purchaser should insist on his btiing ejected by the vendor. 
 Although it would seem that possession is nf) longer constructive notice of 
 the title of the jjerson in possession as against a j)arty claiming under a 
 registered title : Bdl v. Walkir, 20 Gr. 569; Ura}! \. Ball, 23 (ir. 390; AAcr- 
 honcati V. Jefn, 15 Gr. 574 ; not even though there be actual notice of the 
 possession : Coolei/ v. SniilJi, 40 IT. C. Q. B. 543 ; Roe v. Bradni, 24 (ir. 58!l. 
 but where the jierson in possession is tenant under a lease for .i term not exceed- 
 ing seven years, his interest is protected though his lease he not registered : 
 R. S. O. c. 114, s. 35 ; Latch v. Bright, 10 (Jr. (J.53. As to eflect of possession . 
 see Attorncij-Gcneral v. McNuIty, 11 Gr. 281, 581 ; Gray v. Couchir, 15 (ir. 419: 
 
 In investigating the title, the purchaser at a sale by the Court, is not )x)und 
 to inquire into the regularity of the proceedings in the acion ; if the judgment 
 appear to be regular on its face, he will be protected : Shaw v. Crawford, 40nt. 
 App. 371 ; Ou7in v. /)Me, 15 Gr. 655 ; McLean v. Grant, 20 Gr. 7(1 He 
 must, liowever, ascertain that all proper necessary parties are bound by the 
 judgment : Lechmere v. Brasicr, 2 J. & W. 287 ; Calvert Godfrey, 6 Beav. 
 97 ; Bennett v. HaniU, 2 Sch. & Lef. 577 ; and that the sale wa« in accord- 
 ance with the judgment : Colclour/h v. Sterum, 3 Bli. 181 ; Tallott v. Mimett. 
 6 Ir. Eq. 83. An oi-der of the Court is not invalidated as against a km6 fid' 
 purchaser under it on the ground of want of jurisdiction, or of want of 
 an J' concurrence, consent, notice, or service : R. S. O., c. 44, s. 10. 
 
 Where the requisitions, and objections, or any of them, are not answered, 
 either party may carry in the objections, or such of them a» are not 
 answered, before the Master, as provided by Rule 108, and get his decision 
 thereon. 
 
MASTEU S OFFICE — SALES. 
 
 213 
 
 There are some objections wliich are not strictly objections to tlio title, Rule 114. 
 but are coiisidererl " matters f)f conveyance." Thus, the existence of out- Matters of 
 HtanrtiiiE' incumbrances, or satisfied miu'tgao'es — where the vendor is entitled convey- 
 to rcqun-e tiie party ai)i)earini,' entitled thereto, to join in the conveyance ance, what 
 ti) the imrcliaser, or to release or dis-,cliar(4'e iiis incunil)rance — are not ''''^^• 
 (ibjections to the title. But where the vendor is luiable t(» jn-ocure such convey- 
 ance, or release, such incumbrances then constitute an objection to tlie title : 
 sw lie (li-cat Northern Ry. Co. v. Samkrwu, 25 Ch. I). 7«8 ; 50 L. T, N. S. 87. 
 
 114. In case of the refusal or necjloct of the vendor to 
 verify any portion of the abstract to tlie best of his ability, 
 or to furnish any necessary proof or documents in his 
 power, the Master may authorize the purdiaser to do so at 
 the vendor's expense. Chy. 0. 390. 
 
 Costa of Reference as to Title.— In sales by the Court, the purchaser is 
 entitled to his costs of the reference, where the title proves pood, f)n grounds 
 luit appearing on the abstract : Fir/iln- v. Himiinaon, 3 V. & B. 142 ; and will 
 not bo ordt^red to jiay tlie veuulorVi costs though the title is proved according to 
 the abstract : Flower v. Ilnrtop, 8 ]5eav. 2(H); Holland v. Kia<i,l W. R. 80; 
 Dart. V. &, F. 1210 ; unless the objections are frivolous and vexatious : Thorpe 
 V. Fren; 4 Mad. 4(;(i ; I'eerx v. ^ueyd, 17 Beav. 151 ; Seton, 1312, 1313 ; 
 Piatt V. Bli::tiril, 2!» (iv. 4() ; Jfurd v. Robertson, 7 (ir. 42 ; Laird v. Paton, 
 7 Ont. 137. A special ai)[)lication is necessary for an order for such costs : 
 Flmnr v. Ilnrtop, .^upra. 
 
 A purchaser will be ordered to pay the costs of an unsuccessful application to 
 be relieved from his jMirohase : Onborne v. Osborne, 18 W. R. 421. 
 
 Where a good title cannot be made, the purchaser is entitled to a lien on the 
 land sold, for the dejwsit and costs : Ilttrd v. Rohertfon, 7 Hr. 142. 
 
 Conveyance.— In all sales by the Court since The Jiidicatnre Act, the Master 
 to whom tlie action is referred, may settle the cojiveyance in case tlie parties 
 riiffer, or there be any parties not ;<ni jurin )T)terested, other than married 
 women, without any special reference : see Rn/e till; and see Ruh-K ()2, 107, 
 But wlieu infants are niterested, the Master is not to settle the conveyance, 
 until tho evidence is produced, of the purcha,se money having been naid 
 into Coiut, or of its i)ayment having lieen dispensed with ; and wliere 
 the purchaser is re<piired to give a u\ortgage, not until evidence is given 
 tiiat the mortgage hixs b'ieu registered, and dejiosited, with the Accoiuitant : 
 Ituk 1(K)4. 
 
 It is the |)urchaser"s dutv to pri'pare, au'l tender, the cimveyance for execu- 
 tion; SteylieiLsv. Ih'X'.iliiia, ■', (,». B. 422; Bolloii v. Hwiel, 35 U. C. Q. B. 407 ; 
 U'nitv. I'lirh-r, 2 Oliv. ('\\. 3S ; Moo.ifi/v. I'rrro-it, 20 (ir 418; BurnK v. Boiid, 
 19 IT. C. q. \\. 547 ; but see I'.'.krr v. Wnll, 25 U. C. Q. B. 115 ; llnrri.ioii v. 
 Lim'j.ston. T. T. 1 & 2 Vict. ; M<>n<l,' v. Sfnarl, 4 U. C. C). B. 203 ; Prindle v. 
 McCiui, Jl,. 228; ,s,;,ll V. /lil!:ii; 15 C. \\ 2(N) ; 3I<;Jk>nald v. S,ii!s'iiit/er, 5 
 r. C. n. l). 312; /.'.»/"■•-■ V. Lidr, !» V. C. <^ B. 2(>4 ; Stnitli v. Doan, 15 
 I'. C. Ci. li. i;31; n„>/erv. S/r.-l, U C. I'. 243 ; /w«/r ;• v. //.■Idrn, l(i C. P. 3.31 ; 
 iuifl in tlie event of the jinrties differing, or in case of infants, or lunatics, 
 teing interested, it must be settled by tile Master, before engros.sment, or 
 tender for execution. Tlie i)urcliaser cannot I'c^quire a covenant hv centiti que 
 <ruH for title ; Coftrell v. Cottnll, L. R. 2 Kcj. 3:tO ; nor where the legal estate 
 is conveyed can he require jiarties to the action, having merely eqfiitable estates 
 to join ill the conveyance. Therefore, upon a sale of mortgaged j)remises, he 
 >:aniu)t require the I'nortgagor to join in tile deed : Rom v. Steele, 1 Chy. Ch. !)4 ; 
 nor the wife of the nun'tgagor : Sloore v. ahinwrx, 1 Chy. Ch. 5!) ; nor the wife 
 'if the mortgagee : Si'mnnoii v. Siwpnon, 1 Chy. Ch. 2(15. Where, in conse- 
 'luenoe of tlie infancv of some of tiie vendors, a settlement of the conveyance 
 hy the Master is rendered iiecessiiry, the purchaser's costs will be ordered to 
 w- paid out of his purcimse money : lie Mr.Vorri.i, 3 Chy. Ch. 430. 
 
 On refusal 
 of vendor 
 to verify 
 abstract. 
 Master 
 may autho- 
 rize pur- 
 chaser to 
 do so. 
 
 Costs ot re- 
 ference as 
 to title, 
 how borne. 
 
 Purchaser's 
 lien for 
 costs. 
 
 Convey- 
 ance, 
 
 settlenioiit 
 of, by 
 Master. 
 
 Pur- 
 chaser's 
 duty to 
 preiiarc 
 and tender 
 convey- 
 ance. 
 
 Settlement 
 of, by Mas- 
 ter when 
 necessary. 
 Covenants. 
 
 Equitable 
 interests. 
 
 Costs. 
 
214 
 
 OFFICERS AND 0FF1CK3. 
 
 mmm 
 
 Rules 
 no, 116. 
 
 Furobaser 
 may take 
 veatino 
 order lu 
 lieu of con- 
 veyance. 
 
 Applica- 
 tiou for, 
 how 
 made. 
 
 Costs of 
 
 vesting 
 
 order. 
 
 Tender of 
 convey- 
 ance. 
 
 The purchaser is entitled to a ecinveyance with ordinary CDvemints, Imt he 
 may, if ho clioo^e, take a vesting order. Wherever the Court has authority to 
 order tlie execution of a conveyance, it may make a vesting urdi'V : R. >S. (J, 
 c. 44, s. 31. The ve.sting order i.s granted in Chambers on production of tht 
 rei)ort on sale duly confirmed, and i)ro()f that the iiurchane money has becii 
 duly paid, or Hecured, according to the re))i)rt. Where the jiurcliase money 
 is to be paid into Court, itw payment must be proved by the prwluction ef the 
 certificate of the Accountant, or his chief clerk. The vendor's solicitor i» 
 entitled to notice of the application: BouHun v. SteiiiiMn, 1 Cliy. Ch. li)!l; 
 and whert^ infants are interested, the guardian ad titcin is usually notified 
 also: Thome \. Cliutt; 2 Chy. Ch. 221; but see Ihmltim v. Stciiintiii, mjin. 
 Where the owner of the legal estate became the purchaser, a vesting order \vas 
 refused : Boimi v. Fou; 1 Chy. Ch. 387 ; and see Jud. Act, s. 31, and notes 
 (iiUc p. 24. 
 
 A purchaser cannot be compelled to take a vesting order instead of a convey- 
 ance : Laplohle v. Scauwu, 8 Ont. App. 557. 
 
 Where, in consequence of the absence of one of the vendors from the 
 jurisdiction, the execution of the conveyance prepared, and tendered by the 
 purchaser, could not be procured, and a vesting order was then obtained, the 
 jmrchaser was held entitled to the extra costs so occasioned : Re McMorris, 
 3 Chy. Ch. 430 ; and see Lmoramn v. Buckky, 3 Chy. Ch. 270. 
 
 The purchaser sufficiently tenders the conveyance for execution under the 
 standing conditions of sale, by delivering the same to the vendor's solicitor : 
 Weiss v. Crafts, (5 P. R. 151. 
 
 Bales 108- 115. The foregoing Eules 108 to 114 inclusive, are to 
 toa^rre-^ applj to all cascs of reference to the Master as to title, as 
 to m?r.' ^' well as to sales by the Court. Chy. 0. 397. 
 
 (iii) Receivers, Committees, etc. 
 
 Warrant 1]0> The party prosecuting the order for a receiver is to 
 po'ntmeut obtain an appointment or a \<rarrant from the Master, and 
 to nam'e ^'^' ''O scrvc the Same on all the necessary parties, naming in 
 'n^'sure- ^^^ ^^P^ ^^^reof scrvcd, the proposed receiver and his 
 ties. sureties. See Chy. 0. 278. 
 
 Receivers, The appointment of receivera, which was formerly exclusively within the 
 how ap- ' jurisdiction of the Court of Chancery, may now be made by any Division of 
 pointed. the High Court, in anv case in which it shall apjjear to the Court to be just, 
 or convenient : R. S. O. c. 44. s. 53. s.-s. 8 ; see ante p. 52. 
 
 Duty of A receiver is an indifferent person between the parties, appointed by the 
 
 Receiver. Court to collect and receive the rents, and profits, of land, or the pnxluce of 
 personal estate, or to take the caro and custody of any other property which it 
 does not seem proper to the Court that either of the litigants should do, either 
 by reason of tne controversy existing between them, or by reason of personal 
 disability (m the part of the party legally entitled, e.i/., infancy, or lunacy, 
 
 Claim for, Where the appointment of a receiver is a substantial part of the relief sought 
 to be by a plaintiff, he should indorse a claim to that effect on his writ : t'okhmtrnr 
 
 indoraedon v. Colebnurne, 1 Ch. D. GOO. 
 writ. 
 
 Appoint- The apixjintment of a receiver operates as an injunction, and neither of the 
 meut oper- litigants can receive the money, or property, committed to a receiver, without 
 ates as in- a contempt of Court, and it is not necessary in the order ap]>ointing a receiver 
 junction, to grant an injunction in terms : Kerr on Receivers, 8. 
 
 Receiver; when J 
 
MASTER 8 OFFICE — RECEIVERS, COMMITTEES, ETC. 
 
 215 
 
 Receiver. 
 
 when 
 
 appointed. 
 
 Infants' 
 
 estate. 
 
 guliifqucntly given in the action, unless he be expressly continued by it : Kerr ^ 
 on receivers, 2ncl ed. im, Benv.s v. .Vefillc, 10 W. R. XiT) : Taylor's Ord. 3rd 1 
 ed. 274 ; '>ili>i<iii v. Mimtfod, 1 Ves. Sr. 485 ; but the autiiorities cited do not < 
 8i)ix.'ar to liear out the projxjsition : s«fe Heton, 412. The question would ai)i)ear ' 
 to deiwiid on the tenns of the order appointing; the receiver : if appointed j 
 "until tlie trial," then it would seem clear, that unless contiinied liy the jiidg- , 
 ment iironounced at the trial, he would be suiMTseded by it; but if appointed , 
 generally without any limitation as to time, or "until the Coin-t make order to 
 the contrary, " then it would seem that he would not necessarily be sujjerseded 
 by the judgment subsequently iironounced, even tiiough not ex|)ressly con- 
 tinued by it. 
 
 When a receiver has been ajipointed by the judgment in the action generally. 
 it is not necessary that the judgment on further directions should continue 
 him; /.'( I'liderwiml, (iO L. T. N. S. 384. 
 
 Receiver ; when Appointed :— 
 
 I.NFANTs.— A receiver will be appointed of an infant's estate in a proper 
 case, as where the father is of bad character or insolvent, and there is danger 
 of loss; Kiffin v. Kijfin, cited IP. W. 704; I^z parte Mountfort, 15 Ve.s. 44!) 
 n. ; Ik t'lirmich, 2 Ir. Eq. 204, or there is no testamentary guardian, or one 
 who declines to act : Ilicks v. Hicks, 3 Atk. 273 ; Bruli/ex v. /[ale.i, Mos. Ill ; or 
 tlie guardian is misconducting himself : Bmufart v. Berly, 1 P. W. 704, and 
 see UUhiu V. Liirtl Mountcaghel, 4 Bro. P. C. 30<). 
 
 Lunatics.— A receiver will be appointed over a lunatic's estate, where no Lunatics' 
 person will act as committee, or where the committee is infirm, or the manage- estates, 
 ment of the estate onerous : Kerr on Receivers, 78. 
 
 ExEciTOKH, And Tkustkks.— The Court will in a i)roi)er case appoint a 
 receiver to net in place of an executor, or trustee, but it will not do so on slight 
 grounds. Where fraud is charged a receiver will be a])]x)inted : Vernon v. 
 A'iH;/f, 2 0. S. 40, and see Meacimm v. Draper, 2 Gr. 310 : or in ca-se of mis- 
 conduct or improjier management, or where there is danger of loss of the trust 
 proiierty; iliddleton v. Ihtdsmll, 13 Ves. 200; H. v. H., 1 Ch. D. 270; Cole- 
 tmrne v. ('(ilebtnirne. lb. OiK) ; or is wasting the assets : Kecne v. Riley, 3 Mer. 
 43(i ; or that being a sole executor, or trustee, he is insolvent : llarrold v. 
 W'aUis, 9Gr. 443 ; lie Johnsun, L. R. 1 Chy. 325 ; (lawthorpey. (.'awthorpe, W. N. 
 1878, 01 ; although mere iK)verty is no ground for the ai)pointment : Anim, 12 
 Ves. 4; but if coupled with bad character it may be : Everett v. Prythergh, 12 
 Sim. 3(W ; or if being a female, she has married a man in necessitous circum- 
 stances, the cestuisque trust being infants : Dilhm v. Lord Mimntcushel, 4 Bro. 
 P. C. 30G. A receiver may also be granted before probate, or administration, 
 tn prevent waste or siX)ilation, and to provide for the collection of assets pend- 
 ing litigation as to the right to administration : Atkinson v. Ilenshuw, 2 V. & 
 B. 85 ; Bull v. Olieer, lb. 90 ; Junes v. Oodrich, 4 Jur. 98 ; Wood v. Hitchings, 
 2 Beav. 28!) ; 4 Jur. 858 ; Kitig v. Kiiui, Ves. 172 ; Be Moore, Ker v. Moore, 13 
 P. D. 3« ; 58 L. T. N. S. 380 ; but see Knight v. iMiplesds, 1 Ves. Sr. 324 ; but to 
 warrant the appointment there must in general be shown to be litigation 
 pending, or threatened, in the Surrogate Court : Jones v. .fones, 3 Mer. 174 ; 
 J«m\. tfiiHt, 3 Mad. 1; Jac. 400; Murr v. Littlrwood, 2 My. & Cr. 458; 
 Mill v, ,-ieddons, L. R. 10 Kq. 30 ; or that there is some difficulty in 
 obtainingadministration: Orm)i(7<<*«v. Wfird,MBe&v. 175. Pending litigation 
 i*»pecting the grant of probate or administration, the Surrogate has jjower to 
 KTant administration jue/wfe*i« lite: R. S. O. c. 50, s. 53. 
 
 MoRT(iA(iEE. — Formerly a receiver would not be granted at the instance of 
 a mortgagee entitled to the legal estate : Berney v. Sewell, 1 J. & W. 048 ; 
 except nnder s|)ecial circumstances ; see Kerr on Receivers, 2!)-30, 34 ; nor 
 agauist a prior mortgagee in possession at the instance of a subsequent incum- 
 wancer, so long as anything remained due on the prior mortgage. And the 
 Court would only act on tlie jirior mortgagee's own admission that he has been 
 P*'*' off, or his refusal to accept what was due to him : Bcrnty \. liexoell, 1 
 <l- « W, G4!) ; Hiles v. Moore, 15 Beav. 180. But where the prior mort- 
 
 As against 
 executors 
 and trus- 
 tees. 
 
 Receiver, 
 wlien 
 fp-anted on 
 application 
 of, or 
 against, 
 mortgagee 
 of legal 
 estate. 
 
WW 
 
 w^ 
 
 216 
 
 OFFICERS AND OFFICES. 
 
 MASTER i 
 
 
 m 
 
 Ix' Ki'imtt'd ; Slciit/io//' v. linm;,^ U (ii. 
 he iiiii>(iiiit('(ll^ at tlit^ iiistanco of mortgai^ic 
 
 Rule 116. gjigt'i' ill pDs.-ii'risiiiii liwl liiinnelf acquired the t'(|iiity of redemption, and it 
 aj)pi'ared lie liad received rents and profits more tiian sufficient to pay ntf 
 Ins inort},':iu'e, a receiver nii^dit' 
 114. And now a receiver may 
 
 of the legal estate, if it sliull seem to tile '^ourt to Ik- just or oonvwiiciit 
 so to do : J'fdni' V. /''Irtr/ici; I (!ii. 1). 273 ; l)ut see Xnrtk Lniitldii Uitilinni 
 Co. V. ('mit Xorthcni lln il in: n ('<•., 48 L, T. N. S. <\m. Wiiere tlic mint- 
 (japir is in iK)ssessi(m and a receiver is a]i|>ointed at the instance of thi- 
 niortiifatfee, the ustuil direction for the tenants to attorn is not s\it1ic'ifiit to 
 compel the mortgagor to pay a rent to tlie reci'iver : l>ut he will from tliodate 
 of the demand of rent tiy the receiver he compelle<l to pay an oc'cupatidii rmt 
 if he continue to retain posstission : YurLihitr Haul, iuij ( 'c. v. Mdllmi, ,S.j('li. ]). 
 iL'o ; !")() L. T. N. S. 3!l!t ; see .fud. Act, s. .5.3 (8), and notes. 
 
 When on An e([;iitnl)le niort^fagee mav, after dctfault, have a receiver as against ;i 
 
 application nKirtf-agor in jMissession "without prejudice" to the rights of any prinr 
 
 ofequi- mortgagee: Aikiim v. Bid hi, 13 <4r. (>4(1 ; Kerr on Receivers, .S;"). Tiie Ccnirt 
 
 tai)le mort- ^^j]] ,„,(. (.^y^ ,„j j^,, jnterhKnitory motion, the question whether a piinr 
 
 ^ ■ mortgagee in possession lias Iwen paid off, whtai he himself distinctly .swears 
 
 that there 's something due ; hut his affidavit as to the amount due i« 
 
 required to be specific ; if vague, or his accounts are so n(>gligently hyi 
 
 that he cannot a))eak ])ositivelv, a receiver nuiy be appointed : Roik v. 
 
 Wooif, 2 J. & W. mS ; Hilcn v. il/oovv, 15 Beuv. 180 ; Cudrhvftm v. Purkn. 
 
 U; Ves. 4Gi). 
 
 Interim Chkditokh.— An injunction to restrain a debtor from alienating his proijcity 
 
 Receiver, pendente, lite, cannot in general be obtained by a simi)le contract creditor suiii!; 
 
 " "J 1 *" '■"t!"^*'*' ''••'^ debt, where tlu^ di^btor is in enne ; nor under sucli circuiiistaiiCM 
 
 ftnnniMitinn oowhl a receiver be granted : National Provincial Bank of Ew/laml v, Thnmnf, 
 
 of credi- 24 W. R. 101.3 ; Owen v. Homan, 4 H. L. C. 1031} ; Itobinxon v. Pieknimu 
 
 tors. 50 L. J. C. A. .527; Hepburn v. Potion, 2(i (ir. .587; not evou tlioiigli the 
 
 debtor be a public comp.nny : McColl v, Canada Farmers' Muimil [nmrmi'i 
 
 Co., 18 0. L. J. 117; Millx v. Northern Raihraii of Bnenon Aiin-i To., L K. 
 
 5 Chy. 621 ; nor though the creditor bo an unpaid vendor, and the comiiaiiy 
 
 admit their liability ; Latimer v. AnlvMiuni d' Bedford Eailiraii Co., !) Cii. 1'. 
 
 385. 
 
 But when the debtor is dead, a receiver may Xte obtained by a •'iiiiiJe 
 contract creditor against the jiersonal r(!i)reseiitative, or devisee, wasting the 
 assets of the deceased : sec Keene v. I'ileii, 3 Mer. 43(); and of the realty wiieii 
 it appears the iiersonal estate is insufficient: Jones v. Pufih, 8 Ven. 71; 
 Cimlh v. ]i<tine, 13 .Tin-. 081 : Kerr on Receivers, 40. Since The, Ikrohitimi "/ 
 hMates .\et (R. S. O. c. 108), the realty and personalty of a deceased iiersoii 
 constitute a common fund for the ])ayinent of^ his debts, .and it would seem im 
 longer necessai-y to establish th.-it the personalty is insufficiei\t a:s a conditimi 
 of obtaining a receiver of the realty. 
 
 After judg- 
 ment, Ke- 
 ceiver may 
 be ap- 
 pointed. 
 
 Against 
 Railway 
 Company. 
 
 And a creditor who has obtained judgment may ai)i)ly for a receiver liy way 
 of equitable execution, as against jirojierty of the debtor, whicli could not W 
 reach(^d by a writ of execution : Aniilo-Italian, Bank v. J)avie», Ciiy. D. -'<"': 
 Smith v. HuvM, 1 Coll. 705; 10 Ha. 48; WelU v. Kilpin, L. R. 18 K(i.'.'!W; 
 Tillet V. PeavKon, 43 L. .f. Chy. 03; Fwmie v. Bland, 11 (,». H. I>. 711: 
 Westhmd v. Hileij, 40 L. T. N. S.' 77() ; Pcrkii v. Muhred, 70 L. T. .hmr. M: 
 Kiacaid v. lired, 21 C. L. .1. 144; Knieaid v. Kincaid, 12 P. R. 4(12 ; Bmk\: 
 /'nth, 20 C. L. J. 103. Fonnerly, in such cases it was necessary, liefmv 
 applying for a receiver, to sue out a writ of execution ; but it would scciiino"' 
 that if the property cannot be reached liy the writ, such a preliminarj' is ii"t 
 necessary : E.e parte Em nit, 13 tMiy. D. 2.59 ; and see dn/e p. (iO. 
 
 Although an interim receiver cannot, in general, be granted in favour nf i 
 creditor against a debtor com])anv : McC<dl v. Canada Farmer'^ .!/«'""' 
 Im^i'-ranre Co., 18 C. L. .7. 117, it is sometimes the only relief that ciin Ik- 
 awarded, after judgment has been obtained. Thus, neither an executiiiii 
 creditor, nor a mortg-agee, of a railway comp.iny, can enforce payment of hi< 
 demand, by sale, or foreclosure, of the railway ; he can only do so by pntcuiiii.iJ 
 a receiver and manager of the undertaking to be appointed : Oalt v. Erir ■' 
 
MASTER 8 OFFICE — RECEIVERS, COMMITTKES, ETC. 
 
 217 
 
 Niagura Railmiu >'<>., 14 (Jr. 4!t!) ; I'lto v. Wdhinil Uniliniii Co., it (}r. 
 affinuwl on ri'-heariiig, Kith Fob. 18(11; Jirnnt/oid v. Unout River M'an'iji 
 
 4r>ri, RiUe 116. 
 
 UmniUHl oil n^-lirtu 111(5, lilLII l-liij. Ijm-f , jjt rr fitjuf fi V. ^rnitm J^tltr ^J it t l^ffttlOll 
 
 ('()„S(!r. 24(i ; and h«i' linczc v. Midlitiul Rnihniii Cn., 2(i (!r. 225 (wlicr«' tlu- 
 plaintiff flaiini'il ii ni<'cliaiiic'n lion) : Kerr on Ki-wivcrH, 4<)-7, TM). Hut wlicrn 
 a railway company luul Xwx'n ordered to he wound up, and an unpaid vendor 
 brouifilt a «uit to enforce liin li(ui for purchase money, it was held that he was 
 entitled to an injunction restraining the company from usiii),' the land until 
 laymfnt of the jiurchase money: Al/iioml Afirnilirnt iC' Ihtrliniitou Rii. I'd, 
 33 Cli. U. T)"! : and si^o WillimiiH v. .ii/lciliKn/ ti: llucLiinihuiii Idi. <'"., 2H 
 L. T. N. S. 547. 
 
 Appoint- 
 ment not to 
 projudico 
 prior njort- 
 
 Ueceivor, 
 wlioii ap- 
 pointed in 
 (lartnor- 
 sliip cnseH. 
 
 Where a receiver is ai)i)()iiit<Hl at the instauct! of a judgment creditor, it is 
 withimt prejudict) to the claims of prior mortgagees, if any ; Liii'i v. Mnthicsim, 
 ■HWa. 71 ; Wihly v. Mid-Hants Hailmn/ Co., hi W. R. 40!) ; J'utt.i v. iVunrick 
 .{■B.C. Co., Kay 14.5. 
 
 Partneiw.— The Court in granting a receiver of partnershiu property, 
 thereby takes the affairs of the partnership out of the hands of all the partners, 
 and entnists them to a receiver or manager of its own appointment ; an<l 
 while an injunction oidy restrains one or more of the i>artners from doing 
 what may be complained of, the appcjintnient of a receiver excludes all 
 alike from taking part in the management of the concern : Hrill v. Hull, 
 3 .Mac. & (i. 8(>. It, therefore, does not follow that the Court will grant 
 a receiver /«')«/<■ H.<r lilf, in every case where it would grant an injimction. 
 
 When a dissolution is neither sought, nor is .absolutely necessary, a receiver \,)t ap- 
 iKiidente lite will not in general be granted of a "going concern " : Uonthimn v. pointed 
 Whitaimli, 1 J. & \V. m.) ; Roberta v. Kiier/iardt, Kay 148 ; Hall v. Hull, .'iiipm; pemlente 
 unless there is danger of the business Ix^ing destroyed, or the assets misapplied '*'" of going 
 in the meantime; or unless one partner is misconducting himself; «.<;., by ''°"'''"'"' 
 wUudiug with dei)tors of the firm ; Kstwick v. ('nnuiini'^iy, 1 Vern. 118; or 
 'arrying on a separate trade with the jjartnershii) property : Hardintj v. 
 Uhmr, 18 Ves. 281 ; or is wrongfully excluding the plaintiff from the manage- 
 ment; Wilioii V. tireeniri.od, 1 Sw. 481 ; (/oodmon v. W/n'teoiidi, 1 .T. & W. 
 592; Rnwe v. Wood, 2 .1. & \V. 558 ; Coii.sf v. Harris, T. & H. 525 ; Prentiss v. 
 Ilreaiinii, 1 (ir. 371 ; Hilton v. lUakeli/, ti (ir. .575; Uteele v. (/roasinit/i, l!l iiv. 
 HI. 
 
 WHiere a partnership is alleged on one side and denied on th ; otlu-r, usually i.^xceptious 
 ii receiver is ai>pointed mitil that question has been determin 'd : I'enenck v. to rule. 
 I'moid; 1(> Ves. 4!) ; Cliajonan v. Beach, 1 J. & \V. 5()4 n ; Fairburn v. Pearson, 
 •-'Me. & (4. 144. 
 
 Tenants in Common. — A receiver has been ajipointed in a partition .iction Kecelver, 
 j'mknte lite, .although there has been no exulusion by any of the co-owners : wlien ap- 
 Merv. Liipen, 7 Ch. J). 358. Formerly a case of destructive «aste, or gross pointed as 
 wchisioii, was necessary to be ma<le to w.arr.ant the appointment of a receiver {''SB'inst co- 
 in such a case : Kerr on Receivers, 7'.t ; but see <;as/,-in v. nall.i, 13 Ch. 1). 313, ^^'"mnl," 
 (iff Thesiger, L.J. ; and Xorfh Lmid>ui /I. W. Co. v. (J real yorthem It. {^-. '-°"""""- 
 ''"., 11 9. B. D. 30 ; 48 L. T. N. S. ()!)5, where it was held the jurisdiction to 
 (.Tant injmictions, has not been extended by The Judiealnre .\el \ see Philll/1.1 
 V. Jimtn, 7(; L. T. Jour. 373. 
 
 Ve.vi)ou and PmtcHA.SEK. — In actions for specific performance, a receiver 
 l*ii(h'iitc lite may, in a proper case, be .ajjpointed : hen/iali/ v. Ace, 3 Mer. 
 «8; H(dl V. .len'kinson, 2 V. & ]i. 125 ; MeLeud v. /'helji.s, 2 .Tur. !«>2 ; and see 
 Tmjlor V. Hekerslei/, 2 Ch. D. 302; 5 Ch. D. 740, a case of chattels; or in 
 actions to set a;iide conveyance>' iis obtained by fi-aud : Still weM vT Wilkins, 
 ■lac. 282; Iliojuenin v. lUiseley, 13 Ves. 107 ; 2 \Vhite & Tud. Lg. Cpse.s, .547. 
 
 LebalTiti.H. — Formerly the Court would not, excei)t und<'r special circum- 
 stances, or in cases covered by R. S. <). (1877) c. 40, s. .3It, api)oint a receiver 
 ^inst a i»rson in [Missessitm of lands claiming under a legal title ; but since 
 liif-iiiilicature Aef, it has l)een held that the jurisdiction is extended, and that 
 • receiver may be apiK)inte<1 even as against a jjerson claiming a legal title, 
 
 Or ijetween 
 VGiif.or and 
 purcliaser. 
 
 Receiver, 
 wlieii ap- 
 pointed 
 against 
 liolder of 
 legal title. 
 
 
218 
 
 OFFICERS AND OFFICES. 
 
 Rule 117. whernvw tlio Court iimv think it "jiint or convenient": Iteul ini<l /Vj^kik/ 
 AitmncrCK. v. McCnrtfni, 27 W. R. IWt; but hw North Luiulon It. 11', (,'„. v 
 (Irrnt X„rlhrni It. W. <'<>., 11 l^. 15. D. 30; 4H L. T. N. H. (i!l5 ; }'l,illij» v. 
 Jones, 70 li. T. Jour. 373. 
 
 AppltcA- Application for Appointment.— Thf< applioation for the apiMiintmcnt nf a 
 
 tlon for. to rcciiivcr, nmst in tlif tirnt iiiHtiincc he nmde in Court, u|)on motion for that 
 
 be made in purpose wiieif the iH)|>ointni('nt in recpiired to be niiwie pein/fntr lili', or else at 
 
 Court. j,]|j, trini^ ,,|. ,„, motion for juiltfuient in the iiction ; but after a receiver has 
 
 breii a]))ioiut*'i), aiiplications to fill vacancies, sub.sefiuently ocoirriuK in the 
 
 office may be made in Cliamln'rw : (Irotv v. Bivti, \) Vh\,. Ajtp. /, liut the order 
 
 for a receiver has been fjranted in ChanilMTH, by coiiHent : lUuchlKiiiHuih v. 
 
 Itmrnhill, IC ,lur. lOSo ; and see 22 Sol. Jour. !»14. 
 
 ITnder lliilc 1134, a defendant may, before judgment, apply for an iiiteriui 
 injunction and receiver. He may do ho, notwithstanding the plaintiff hait 
 already served notice of motion for the like pur|Mme. In H\ich case, one order 
 will be miide on the two motions, but the condtict »)f it will, in general, be 
 given to the |)laintifT : lS<iiyant v. Raul, 1 Ch. D. (MM). 
 
 If the receiver is named by tlie Court, "on liis giving security, '" no other 
 IKjrson can be named in the warrant, and if the jierson named in the order fail 
 to give the Hecurity, a further order would be necessary to enable the Master to 
 ai)iM)int some one else. 
 
 A receiver when anjKtinted is an officer of the Court, and stands in the |K)sition 
 of trustee, to all who aw interested in the estat*) or fund. In making the 
 aiijiointment the Master should endeavour to select a person acce|)tal)le to all 
 parties, as well as otherwise fit and competent for the duties he will Ik? called 
 oji to j)erform : Sim/mm v. I'rescott A R. W, Vo., 1 Chy. Ch. ))fl ; and see Brmit 
 v. yVillnMjhby, 17 Gr. (i27. 
 
 Keoolver, 
 an OtHeer 
 of the 
 Court. 
 
 Should be 
 disinter- 
 ested, un- 
 less Court 
 appoint 
 cue of the 
 pa>"tlea. 
 
 Who 
 
 should be 
 appointed, 
 of trust 
 estate. 
 
 A receiver should in general be wholly disinterested, unless the ))artiKs other- 
 wise consent, or the Court is of opinion that the apixiintuient of one of the 
 parties would be beneficial to the estate : Bryant v. Read, 1 Ch. D. (100. When 
 a uarty to the action is ai)i>ointed it is only on his undertaking to act without 
 salary : lb. ; W'ilnon v. Ureenwood, 1 Hw. 471, 483 ; JUakenei/ v. hitfavi; 1.'. 
 Beav. 40, 44 ; Kerr on Receivers, 1)5. Where a receiver is appointed of tnist 
 property, the cenliii (pie truM is entitled to have the sui)erintendeiiii' "'' •' 
 trustee, as a check ujion the receiver ; the trustee should not therefo' ih- liin 
 self apixjinted, except under s]>ecial circumstances : Kerr 05, <l ; n- where a 
 receiver is ap|)ointea of the proi)erty of any iwrson not .vc i,ruardian 
 
 or committee of such person, should not be appointe<l foi .> reason, mir 
 
 yet any jwrson connected with him, nor the solicitor in tl , ion : Re Lhnjd, 
 
 12 Ch. D. 447 ; nor a Master of the Court : Ex parte Fkt' (> Ves. 427, 
 
 Parties not 
 eligible. be 
 
 A i)arty to the actljn cannot propose himself .as receiver unl< 
 J embodied in the order : iMvm v. Duke of Marlhiir<n«jh, 2 Sw 
 
 ~ lea^ 
 , 11«. 
 
 I do 80 
 
 Security. The giving of security for the due iterformance of his duty by the Reucivtr will 
 not be disijensed with, where infants or otlier persons not ma jiiri.^ are inter- 
 ested : Tijtee v. Ti/fee. 17 Beav. .583 ; nor even where all the parties are -fuijuri^ 
 and consent, if it is referred to the Master to ap]X)int the Receiver : Mannm 
 V. Furze, 11 Beav. 30 ; but it may be, if the parties themselves nominate the 
 Receiver : lb. 
 
 On return 117. At the time appointed, the party prosecuting the 
 bond to^bV order is to bring into the Master's office the bond or recog- 
 brought in. „i2ance proposed as security. See Chy. 0. 279 ; J. A. Kule 
 510. 
 
 The recognizance, or bond, here refeiTed to, is intended to be brought in in 
 a draft, and should not lie executed mitil it has been approved by tlie Master, 
 see Rule 111), otlierwise its re-execution may be necessary. 
 
master's office — RECEIVERS, COMMITTEES, ETC. 
 
 210 
 
 The IkiikI, or r('(MiKiii/.aiM!<'. iiiiiHt now bo iiiiule tu the " Accountant f)f the Rules 
 Supniiit' Ciiiirt (if .ludicatun' for Onturio, liw micci'MMorM unci liHHigiiH": Tift/r 118-121. 
 IWI; K. >>. "• '•• ■** "• l-'-'- "•"• - : >*'''' ""''■' !'• • lloiul, liow 
 
 WliciH' a L'lmriintt'n company lias lircn approved by the Tiit'iitt'iiant-f iovcrnor '" ^" given. 
 ill ('(Mimil, its liond may 1h< iiecfcptcd as st'curity : K. S. (). v. \H\, s. H; and 
 sir i;iq,i;ikr v, Suliiitor In the r,rii.iini/, 4(i L. T. \. S. 821 ; H. S. (). c. 15, 
 ^ L'4. 
 
 IIH, Any other party Hesirous of proposing another rarty de- 
 person us receiver, is to serve notice of his intention so to i.r'^.'i',oBo"an- 
 do upon the other parties, naming in the notice the person "'J;"'/®J"; 
 proposed by him as receiver, and his sureties, and is then ';i'j.^„",y;,t\°j, 
 in like manner to i)ring into the Master's office the bond or * 
 recognizance proposed by him as security. Sec Chy. 0. 
 280. 
 
 110. At the time named in the appointment or warrant 
 the Master is, in the presence of the parties, or those who 
 attend, to consider the appointment of the receiver, and to 
 determine respecting the same ; and to settle and approve 
 of the proposed security. See Chy. 0. 281. 
 
 In oi'flcr to t'liable the Master to settle the Hecurity to be given, affidavitH 
 nmut lie filed proving the amount of jirojjerty liitely to come to the receiver's 
 liftiids. The amount of the security rec^uired, will vary according to tlie circum- 
 stances ; usually security will l>e reqmred to be given by the receiver and at 
 least two sureties in doubh- tlie amoimt of tlie pn)bable annual rents of reality, 
 and double the probable amount of i)er.sonal estate, likely to come to l-is hands. 
 
 Wlien a receiver has passed hi.^ final accoimts, and i)aid liis balances as 
 directed by the Court, an application may ))e made to discharge the lM)nd ; all 
 imrties interested are entitle'! to notice of the application : Bivicii v. Pern/, 
 1 Chv. Ch. 2r)3. 
 
 Master to 
 ai)polnt 
 receiver 
 and settle, 
 and ap- 
 prove 
 security. 
 
 Evidence 
 to be pro- 
 duced on 
 settling 
 security. 
 
 DiscliarRB 
 of bond. 
 
 120. The Master is to make no report approving of or Master not 
 appointing the receiver, but is to appoint such receiver by portap^'^" 
 signing a written appointment to the following effect, viz. : {.'eieive?;* 
 "In the High Court of Justice, Division, ^stule •'"* to sign 
 
 r 1 T I. 1 • i. - • ) - . . appoiKt- 
 
 of c(Ui8e] — 1 hereby appomt [receivers name i-eceiver m ment. 
 thisac^'^n, [sifinntiire of Master];'' which appointment is 
 to be signed without any warrant or attendance for that 
 purpose. See Chy. 0. 282. 
 
 (oiumittees of lunatics, and guardian of tht person and estate of infants, are 
 toU^aiiiKiinti'd in the same manner as receivers : Jlide 122. 
 
 r*i After the execution and filing of the securities Master's 
 settled and approved by the Master, the appointment is to miut'of' 
 be filed by the party who has procured the person named ^e'^Ajefv"* 
 by him as receiver to be appointed, and may be moved 
 against within seven days by any party interested. See 
 Chy. 0. 283. 
 
 Tr 
 
 ^ 
 
T-n 
 
 220 
 
 OFFICERS AND OFFICES. 
 
 1 4 
 
 Rules 
 122, 123. 
 
 UeceivGi' 
 appoint- 
 ment, 
 when 
 effectual. 
 
 Interfer- 
 ence with 
 Receiver, a 
 contempt 
 of Court. 
 
 Recei*'*r to 
 obtain 
 leave to 
 sue, or do- 
 fend, or 
 distrain. 
 
 Proceod- 
 ingB 
 aeainst, 
 restrained. 
 
 Accouut.'< 
 of. 
 
 A receiver apiMiintcrl "upon his (jriving security," iHnoteflFeLt'ii;''yc(,iiBtitnt«! 
 receiver as apiiiist third i)arties until lie ha.^ given the wcurit> I'Jiliniinh\. 
 Kiluiinln, 1 Oil. I). 4.')1 ; 2 (ii. I). 2'.n ; but if no Hcciu'ity \w required, he is 
 legally clothed with tlic eliaracter of reotnver from the date of his apiH)iiiti)i''iit • 
 Tau/nr V. Ecknsh'!/, 2 Gh. ]). 302 ; T) Oh. I). 740. 
 
 Interference l)y third p.irties witli the ))roperty in (luestion, Mi,tv the 
 a()pointinent is completed, is ii"t a contempt of Ctnu't : Ih. ; and see Fn/ \- 
 A7/)i'.s»(/(;/ R. 11'. Co., 2'.t (ir. 11. 
 
 After the jippointment of the receiver is complete, any interference with tiic 
 proiK-rty committed to his cliar^je and in his jiosse.ssion, either by parties to ihi- 
 action, or third parties having nuti<;( oi liis ai>|Hiintment, is a contempt nf 
 Coin-t, unle.-s the leave of the t.oiiit lavi' been first obtained : Amid v. Smith 
 '.) Ves. ;«;■) ; Rh^m/I v. East Aifjlinn R. W. Co., 3 Mc. & (I. 104 ; Am>.^\: Hirk- 
 I'lihciid Doikx, 20 Beiiv. 3r»3 ; even tiiough such intei-ference be by persiiiidclaiiii- 
 in^ liy title paramount to that of the parties to the action in whioh tile receiver 
 is appointed ; ///. .- Krchiii v. Lriri^, 3 Ha. 475 ; Hairtiinn v. (inthi rciili; 1 Drew 
 17; Miindjlchl v. R(iinl_tiM, l Dr. iV. .Sm. 314; and the Court will not |»mm 
 anyone, without its sanction, to intercept, or prevent payment, or delivery to 
 the receiver, of any money or p>-o])erty wliich he has Ix'en appointed to receive: 
 Amen v. Ilirkinhtwl Dockn, 20 Beav. 3.").3 ; but where gcHMl.s ni tiie possession of 
 a receiver were .sold for ta.xes, and neither the l)ailiff, nor purchaser, hiul iiotii-e 
 of the receiver's rights, tlie Court refused to hold the .sale void : <iilisnii v. Lordl, 
 18 (ir. 107. As to i)aynients whicli a receiver of a going concern m.iy projieilv 
 make : see (loodi'rhma v. Toronto <(• NiinKKimj Rij. Co., 8 Out. .Vjip. (W."). 
 
 When it is necessary for tiie receiver to bring, or defend, an action, or take 
 other legal proceedings, to recover, or maintain, his right to pro])erty CDinmitt'd 
 to him, he should tint olitain tiie sanction of the Court : TIioiikih v. Tnniino'. 
 1 C'hv. Cii. !). He cannot sue in liis own name, but he must get tlic leave (if 
 the Court to bring tiie action in the name of tiie |)artv in wiiom tlie legal c»u.«e 
 of action is vested : Mrd'uiii v. FrHti, 13 Out. (>!(!• • ituort v. (Irowih, 14 Out. 
 255. The receiver siiould not iiim.self initiate proceedings, but lie sliould apply 
 to the party having the conduct of the cause to take any proceedings tliatiiiiiy 
 1x1 nece.ssary : Third NatioiKil lUmk v. Qiaen Citji Rrlininij Co., 20 C. L. J. 151. 
 After attornment by a tenant to the receiver, tlie reci'iver may distrain in lii» 
 own naiut" ; before attornment leave must be obtained to distrain in the name 
 of tiie jierson having the legal estate : Kerr 142, 143. Tlie application for leave 
 to sue, defend, or distrain, may be made in Chambers : TlioiiKii: v. Torriiim. 
 1 Chy. Cli. it ; notice to Siie tenants is not necessary : Rurton v. Drii'lni, (i 1'. K. 
 
 Pniceedings instituted against a receiver for acts done by him in tiie execution 
 of his office, will be restrained: ,Siiiipnoi>. v. Hnlrln'snii, 7 (ir. .'iOH ; and see 
 Scark v. < 'liorit, 25 Cliy. I). 723 ; .50 L. T. N. S. 470. After his dis(?harge a receiver 
 will not b<^ re. trained from soliciting customers, unless lie was appointed cai 
 the tenns tl:at lie would not do .so after he ceased to lie receiver : iff /nVi, 
 frhh V. Irixh, 40 Ch. D. 4!» ; GO L. T. X. H. 224. 
 
 AcoouNT-s OK Receiver.— See Rule 123. 
 
 Commit- \iifi, Coinmittees ot the persons and estates of lunatic.N 
 
 tees of.,. , .•■ t • -t 1 !• 
 
 lunaticsto idiots, aiid [lei'soiis of unsound niind, and guamiaiis, 
 edrnHamo excepting guardians ad litem, aro to be appointed in tlic 
 receVvom'' Same manner as receiveva. as nearly as circumstances will 
 permit. Cliy. 0. 537. 
 
 Master to 
 ajjipoint 
 time for 
 Uecoivers, 
 and Com - 
 
 133* Where an order directs the appointment of ii 
 receiver, committee of the person and estate of a hinatic, 
 idiot, or person of unsound mind, or a guardian other than 
 
master's office — FORECLOSURE, SALE, ETC. 
 
 221 
 
 a guardian ad litem, and does not regulate the matter J'J^®" 
 herein provided for, the Master is to fix the time or times j^.^^gg^j^ 
 in each year when the person appointed is to pass his pass ac- 
 accounts and pay his balp.ncea into Court; and in default wiloro not 
 of compliance with such direction, the person appointed "ouit '^ 
 may, on the passing of his accounts, be disalloweo any 
 salary or compensation for his services, and may bt 
 charged with interest upon his balances. Chy. 0. 588. 
 
 (iv) Foreclosure, Sale and lledeniptioii. 
 
 124. Upon a reference under a judgment for foreclosure Master to 
 cr sale* the Master is to inquire and state, whether any "d'CJcuin!' 
 person or persons, and who other than the plaintiff, has or '^'■*'"*'®*- 
 have any lien, charge, or mcumbrance upon the land and 
 premises embraced in the mortgage security of the plaintiff, 
 ill the writ or pleadings mentioned, subsequent thereto. 
 Chy. 0. 442. 
 
 This Riilf in its terms applierl only to tlic case oi inortgagi'S of lando, but a 
 similar procedure is followed ui)oii a judgment for the sale, or foreclosure of 
 chattels. 
 
 Tlie inquiry is c;)nfino_l to subsequent in(5\imhran' rs ; i)ers(ms against whom Master to 
 relief 18 simglit, whose claims, if any, are primii fiicj<' prior to the plaintiff'w uiquire us 
 must be made parties to the writ : ' dhi'm v. FnrkM'm, 10 (Jr. 470; IaiIIii «■. [" >"cuni- 
 bHUjhir.it, \2V. R. 510; and .see Whit'' v. limsh-n, 2 (Jr. 062. Wliere, h'ow- siibsequont 
 ever, the plaintiff ha.s sought to attack in the Master'.s office, the priority of an to plaintiff, 
 incumbrancer wiir) is /(/•//»'( ./'rtc/V entitled to priority over him, he has Iwen 
 iillnwed to vacate his judgment and to add the incumbrancer as an original 
 ilefendant to tb.e writ, and proceed dc mivo as against liim : Lidh/ v. Limi/huivt, 
 -I'y/i'rt. Where tlie mortgagor wa.s the only defendant, and a decree, by 
 consent, for innnediate foreclosure was talcen against him, a reference as to 
 Incuirbrances was refused : Tai/lni- v. H'uni, 1.3 Hr. .0!)0 ; but it .seems doubt- 
 ful whether the rule laid down in that case would be followed under the present 
 practice. Where there are no incumbrances, the ))laintitT should not take a 
 judgment with a reference as to incumbrances : see liute 770, and notes. 
 
 Tiie incumbrancers are ascertained by the production of the certificates 
 mentionetl in the folio .ving 11 uh: 
 
 185. The plaintiff is to bring into the Master's Office Piaintie to 
 certificates from the Registrar and Sheriff of the County M.'of"'" 
 wherein the lands lie, setting forth all the incumbrances aud'ii^g'is- 
 which alVt the property in the writ or pleadings mentioned, tear's certi- 
 aud such other evidence as he may be advised. Chy. 0. 
 443. 
 
 The certificates should be brought down to, at least, the day subsequent to 
 the issue of the writ in tht action. 
 
 It is not necessary to add as patties, those who acquire title jiendeute lite : Parties ac- 
 «''wn V. Anjiiv, 25 Gr. 407 ; Wallirid^e v. Afartin, 2 Chy. Ch. 275 ; BeUamy v. quiring 
 '*''"'«', 1 D. & J. 500, 578, 580, 584 ; 3 .tur. N. S. 'J43 ; T-h. v. Thonuis, 25 Beav. t»tlo pen- 
 dente ttte 
 
 \> '■ & 
 
222 
 
 OFFICERS AND OFFICES. 
 
 Rule 126. 47 ; and see 1 Ric. 2, u. !) ; an order abiding partiew wlio had acquired interests 
 need not be i^'"'"'''"''' ''''" was set aside : Alirll v. Pt.rr,*.) P. R. 5(!4 ; but see Liiiihaijw 
 added. Ititnk <;/' Mnnlrni/, 13 (Jr. 8(i. As to the doctrine of //.« pendiim see C. L. T. 
 
 SeiitenilK'r 87, Bennett on Lik Peudi-ns, c. 1 ; /';•/(■<■ v. Price, 3.5 ( 'li. I). 21(7. The 
 doctrine of Lis J'l'iii/i'u.i does not affect third jK-rsons acciuiriny: title under tax 
 aaii;!* pt'iii/fii/ liti; lieiniett c. .5 s. 88, nor /«)»rJ,/(V/(' transfers of negotialile i)a|K>r, 
 III. ss. 8(), 87 ; nor rights re()uired undia" statutes authorizing exiPi'iiprmtion 
 
 Sheriff's 
 certificate, 
 form of. 
 
 Witli- 
 drawal of 
 writ for re- 
 newal is 
 not an 
 abandon- 
 ment. 
 
 But a direc- 
 tion to tlie 
 slieriff to 
 stay, is. 
 
 Registrar's 
 certificate. 
 
 CO. Clerk's 
 certit\cate, 
 when ne- 
 cessary. 
 
 Master is 
 to add 
 parties. 
 
 Ih. s. 8!». 
 
 Sheriff's Certificate. — Wliere the mortgage is of freehold lands, the certifi- 
 cate of the .Sheriff must relate to executions against lands, l,\it where the 
 projierty nu)rtgaged is leasehold, or chattels, it shoidd relate to executions 
 against goods; Sjinnow v. ('/iiniijid'/iie, 5 C. P. 304. The eertitieates arc 
 usually confined to executions against the mortgajfor, or other dwiicr of the 
 equity of ivdeniptiim. But when the jjractice of registration of judLniientswas 
 in force, it was held to l)e necessary to make the judgment creditors of the 
 mortgagee parties also: S<iiii/ri\iiiii. v. Iiici; 7 (ir. 383; but in a later ca.«eit 
 was held that a 'creditor of the mortgagee who had obtained an order attaching 
 the mortgage debt, but not an orcler to pay over, was not an iiieunibranttr, 
 and ought not to l)e made a i)arty : Ci-'i.ihir v. Ffiiii, 2(i Gr. 283. Tlif Sheriff's 
 certificate should Im- so worded as to include writs wiiich have Im-cii withdrawn 
 for renewal, this may be done by making the certificate cover any writs which 
 have lieen in the Sheriff's Itands within thirty days jjrecediiig its date ; see 
 form of such a certificate, Taylor on Titles, 2nd ed. 197. 
 
 The withdrawal of a writ for renewal is not an abandonment of its priority, 
 but on l)eing returned t,) the Sheriff renewed, it retains the same jKwition it 
 held jirior to its withdrawal for renewal : /{oirc v. ./arris, 13 C. P. 4!t5; iluir 
 V. Mil II roc, 23 11'. C. Q. B. 139. The day of the teste of Aii./o. is inclusive, 
 so that a writ issued on the 15th day of a month expires on the 14th day of the 
 •same month in the following year: llniik nf Montreid v. Ti(!/liii;l'> C. P. 10". 
 A writ withdrawn for renewal, and not returned for fifteen days thereafter, 
 when a year from the teste had expired, was held, nevertheless, ti)l)ere-de- 
 '"vered in sufficient time : Meiieilli/ v. JfcKciizir, 3 K. & A. 2()!t ; but a writ 
 nst returned to the Sheriff until six months after its renewal,- owing to mis- 
 take, — was held to have lost its priority : Re Hime A: Ltdhii, 13 P. S. 1. k 
 direction by the execution creditor to the Sheriff to stay proceedings, i.s taiita- 
 mount to a withdrawal of the writ, and any subsequent execution then in the 
 Sheriff's liands, or thereafter, and during the stay, coming to his luinds, will 
 take priority : Trust. ,!• Lunii Cn. v. CutMerl, 13 Gr. 412. 
 
 Registrar's Certificate. — 'I'he Registrar's certificate is usually confined to 
 registrations on the particular i)arcel of land included in tli" iilaintiff'sniort- 
 gage. But it is well to War in mind, that judgments for alinuiny i-egistemi 
 against a defendant, liind id/ his lands situate within the county, or counties, 
 in which the registration is ma<le, without any lixial description : see K. .S. D. 
 c. 44, s. 31), ante p. 23. 
 
 Where the mortgaged |)r(jjH'rty consists of chattels, the certificate of the 
 clerk of the proj)er County Court shimld ix; produced, as to sul)sw|iient nmrt- 
 gages. 
 
 It is to tiie interest of the plaintiff to take care that all imtsoiis, having any 
 claim as suV)sequent incnmlirancers, are ninrie parties ; as the omission toinak'' 
 them |)arties at the proper time, may lead to difficulty in carrying out any 
 sidist^quent sale whicii may Ix; liad in the acti(jn ; and jxissibly render another 
 action necessary. 
 
 12tt. The Master is to direct all such persons as appear 
 to him to have any lien, charge or incumbrance upon the 
 estate in question, to be made parties to the action, and to 
 be served with a notice in the form No. 34 in the Appendix. 
 Chy. 0. 444. 
 
 ^ttSa^'ii 
 
Rule 127: 
 
 Rights of 
 parties, 
 whose 
 claims ap- 
 pear doubt- 
 ful, not to 
 bo deuideil 
 in their 
 absence. 
 
 Slechanics"^ 
 liens. 
 
 Attaching 
 creditor of 
 mortgaKeu. 
 
 master's office— foreclosure, sale, etc. 223 
 
 Where it is doubtful whether [HTHons, ai)i>earing to have claims, have any 
 valid right, the (inestioii should not be determined against them in their 
 absence, but they wliould be added as ])arties, and an opiiortnnity given them 
 to maintain their claims : Ciinada Ldiidvd Civdit Cn. v. MrAUiitcr, 21 (ir. f)93. 
 Persons whose claims, if any, would be jirior to the )>laintiif, should 'e made 
 parties to the writ, and not lulded in the Master's ottice : d'ld.ssx. l''irckletou, 
 10 (xr. 47(*; Lnllji v. Lnui/hiirxl, 12 P. R. 510; and see I'lilc 124. Persons 
 having mechanic's liens subsequent to the plaintiff, shoidd be added under this 
 Riilf, and not ma<le parties by the writ : .Idiksnn, v. Ilammund, 8 P. K. 157- 
 An execution creditor whose writ is placed in the Sheriff's hands subsequent to 
 the registration of a mechanic's lien, but ])rior to the institution of an action to 
 enforce it is a subse(iuent incumbrancer and may be made a party to the 
 action in tiie Master's office notwithstanding the !M) days limitecl by R. S. O. 
 c. \%, s. 23, have expired : Cnh v. IMl, 12 1*. R. 584, afKnned by C. A., 13 
 P. R. 1(X). A creditor of a mortgagee who has obtained an attaching order 
 against the mortgage debt, but who has not obtained an order to pay over, is 
 not an incumbrancer witliin tiie meaning of »,iie Itide ; Cntxhie v. Fcnn, 2(5 Cir. 
 !^ ; neither is a simple contract creditor of the mortgagor, nor has he any 
 right of redemption : Xichnl v. Allenbi/, 17 Ont. 275 ; and where a tenant in 
 common niortgivges his share, his co-tenants have no e<iuity to redeem that 
 share; //'. 
 
 Where a subseq\ient mortgagee is dead his real repifsentatives should not be Deceased 
 made parties, it is only necessary to luld his {)ersonal representatives : Wliitln mortgagee, 
 V. IMlidai/, 4 I). & \V. 207 ; Tai/lnr v. .S/md, 1 Chy. Ch. 74 ; O'rim.'iliau'c v. ropreseuta- 
 P«)A», OU. C. L. J. 142; Lawmue v. II iimphries,' 11 Gr. 20J( ; R. S. O. c. ''ves to be 
 110, s. 16 ; Ddl' V. hoiii/la.i, 20 (ir. 90; Itnbiusiin v. Bi/er.i, » (ir. 572 ; and see *"««"• 
 now R. 8. O. c. 108 ss. 3, 4. And where a mortgage is taken in the name of 
 one partner to secure a partnership debt, it is not necessary to add the real, or 
 personal, representative of a deceased partner : Stepheiin v. Simmon, 12 Gr. 
 493. 
 
 Subsequent inciunbraiicei-s shoidd not l)e made defendants by writ, even in 
 an action to enforce an annuity : AV/«(/« v, Cochrane, 13 P. R. 7(». 
 
 Where a iwrson is entitled to rights in two different capacities, if he be 
 made a party to an action distinctly as regards his right in one capacity, he 
 may not Im- iKnnid as to his rights in the other capacity ; e.f/., a i)erson made 
 a defendant as a judgment creditor, was held not to be bound in his character 
 of mortgagee: fronts v. i\'(d/,in.i, 8 (h: 340. 
 
 Where an execution creditor is made a i)arty in the Master's office as a 
 8iib8e<iuent incumbrancer, service of the notice (f'orm 34) ujK)n his solicitor in 
 the action in wliich the execution was recovered is sufficient : see Hide 4(15. 
 Where it is brought to the notice of the Master that there are parties having 
 subsequent unregistered claims against the lands, they should be made parties 
 m his office: Comdiun lUink of Vomnwrvi: v. /Vi/V,v, 10 P. R. 442. 
 
 A mortgagor's tenant for years is entitles to redeem, if the mortgagee refuse 
 to concur in the lease : Tarn v. riirner, 39 Ch. D. 45(! ; 58 L. 1. N. S. 658 ; 
 and should Ix- lulded as a party : and see Andcr.son v. Stevenson, 16 Ont. 5G3. 
 
 Persons added as parties under this Bide become parties from the date of the 
 I"*,V''''J.^""" ^"- 34) not merely from the date of its service : StcrUmi v. Camp- 
 K 1 Chy. Ch. 147. 
 
 127. Any party served with a notice under Rule 126Piirtic8 
 may apply to the Court at any time within 14 days from mov^e'' '""^ 
 the date of the service, to discharge the order making him '^f^'^^ 
 a party, or to add to, vary, or set aside the judgment. Chy. 
 0. 446. 
 
 Person 
 filling two 
 capacities 
 should be 
 added in 
 both, or 
 may not be 
 bound. 
 
 I >A 
 
 f " }i? .i •3tf5fli.S; 
 
 
Motion to 
 diHchartte 
 order add 
 
 224 OFFICERS AND OFFICES. 
 
 Rule 128. Where a party added by tlie Master, claims to be prior to the plaintiff, he 
 
 Hhuuld move to discharge the Master's order : McDovyall v. IJmlntty I'am- 
 Milh- <:„., 10 r. R. 247 ; 20 C. L. J. 133. 
 
 In Moiifijiiiiicr!/ v. Shotiis, 3 Cliy. Ch. GO, the motion to discharge an order 
 
 idding a ])arty, appears to have been entertained in Chanil)fr.s ; and !•> 
 
 lncT'ai-th3s ■^fcl^'i'K'lif v. Itiulijcrs, (Jr. IT), the question was raised on an iipjK'al from th 
 
 in M. O. Master's reixirt; and in Kli»c v. Kliur, 3 Chy. Ch. 101, an applii^ation was made 
 
 how made, to the Master hii'iself, to discharge his order adding a party under Rule 4(i, 
 
 on grounds disci. )s',h1 subsecjuent to the making of tlie onler. 
 
 Motions to discharge the order adding the a))plicant as a party, must 
 be brought on tc be heard within fourteen days from the service of the notice, 
 Fonu No. 34. 
 
 Motion to Where the i>arty added, desires to move to vary, or set aside the judgment, 
 
 vary judg- tj^e motion nuist be made to tlie Court — and in the Chancery Division it must 
 
 bif ma'le'to '"'*'f*' ''"^^'1' to l)e heard on a Wednesday, and the motion must l)e retunmble 
 
 the Coiirt within the fourteen days from service of the notice on tlie partv moving ; 
 
 . j^.^^^^ ^ I'.ruwn, before Proudfoot, V.C., 23rd November, 1S80; 'Wri-iht v. 
 
 Wriiiht, before Blake, V.C, 20th March, 1881 ; and .see MrJ/nn/ v. I'lmrke, 
 
 3 Chy. Ch. (iO ; Jluvris v. Mei/i'rs, 10 (Jr. 117 ; Jackxim v. (''ardiiin; 2 Cliy. Ch. 
 
 385. In the other Divisions, the motion should be made before the .ludge in 
 
 Court, on a Tuesday, or Friday. 
 
 Leave to Where the fourteen days is suffered to elapse, before the motion is made 
 
 move wlien returnable to discharge the order, or to vary, or set aside, the judgment, the 
 necoBsary. pjn-ty added must first obtain leave to move, before he can move to vary, or set 
 aside, the judgm(>nt, or set aside tlie onler adding him as partv : I'oe v. 
 .SV"«^'», 15 (ir. 137 ; Mcllr«y v. llmrk,; 3 Chy. (Jh. (>(i. This leave, in a 
 proiK'r case, may be obtained on motion in Chamliers, but where the applicant 
 failed to show a prima facie case, leave was refused : Jio.c v. Bridymun, 6 
 P. R. 234. 
 
 incuui- I2H. The Master, before he proceeds to hear and deter- 
 
 orancers to . . . ' • , i , 1 1 «• ■ <• i • 
 
 be served mine, IS to require an appointment to the eiiect set forth in 
 poiutment. fovm No. 35 in the Appendix, to be served upon incum- 
 brancers made parties before the judgment. Chy. 0. 446. 
 
 Defendant 
 who lias 
 not ap- 
 peared, 
 when en- 
 titled to 
 notice of 
 proceed- 
 HigB in 
 M. O. 
 
 Ihider the former practice in Chancery, it was held that notwithstanding a 
 bill might have been taken pm ciiiifexmi against a defendant, he was, neverthe- 
 less, entitled under certain circumstances, to notice of jiroceedings in the 
 Master's office; Hn/iiiismi v. Whitamib, 20 (ir. 415; McVurmick \. MdWmirk, 
 ti P. R. 208; Buchanan v. Tiffany, 1 Gr. 08; Walsh v. lionrke, Ik 105; 
 Hawkins v. Jams, lb. 2.57 ; 1 K. & A. 246 ; Strachan v. Muniey, (Ir. 284 ; but 
 see I'errin v. J)avis, 3 Gr. 101. In mortgage cases it was customary to notify 
 not only suljsecpient incumbrancers who were parties to the bill as r('<iuired by 
 this Bale ; but also the mortgagor, whenever the plaintiff proved luiv other 
 claim in addition to that alleged in his bill, or where subsecpient incum- 
 brancers were aflded, even though the bill had lieen taken pro confesm : see 
 McComiick v. McCormick, $upra ; but see Baby v. Woodhridye, 5 U. C. L. J. 
 07. But a defendant cannot, in the Master's office, rely on any defence which 
 if sustained would have the effect of determining that the Court had made a 
 nugatory order or judgment : AlcDougall v. Lindsav Paper Milh Co., 10 P. R. 
 247 ; Wihy v. Ledyard, lb. 182. 
 
 Under the new practice there is no equivalent proceeding to an order or note 
 ro confcsso; nor any Rule expressly authorizing all subsequent proceedinifs tu 
 _ le taken ex parte against defendants who do not defend ; formerly by Rule 131, 
 it was provided that if no appearance be entered for a defendant "«^*'T 
 pleading or document," required to be delivered tt) such jiarty, may be 
 delivered, by being ixjsted up in the office from which the writ or suminoiu 
 issued ; but that Rule lias not been embodied in the Consolidated Rule$. 
 
 i;; 
 
 MAS 
 
 I2». Wh 
 
 a notice und 
 128, neglects 
 is to treat 
 party so mal 
 1)6 thereby fc 
 upon applica 
 
 Nntwithotaiidii 
 Kuli; lie may in a 
 leave to be let in, 
 if no ri'iHirt lias h 
 ill Chamliers. Al 
 '.#Vi'i, and there ' 
 to entertain such 
 general jurisdictic 
 entertain siicli an 
 given on the tenii 
 who hivd duly pr( 
 V. Fnlmmr, 11 .T 
 ill ; but in Rosh v. 
 relief \va.s grantee 
 
 Where an iiicuir 
 M-ards let in after 
 mortgage with a v; 
 
 Where a jHTson 
 lie i« not entitled t 
 X. S. 59. 
 
 130. Wher 
 
 Master is to ii 
 and to sucJi ot 
 for principal r 
 costs, and se 
 time and plac< 
 to the practice 
 
 Proof of Service. 
 
 the accounts, to ret 
 proceedings on all i 
 •il subeeqiient inci 
 snd it would seem i 
 alto b notified, evt 
 
MASTERS OFFICE— FORECLOSURE, SALE, ETC. 
 
 129. Where any person who has been duly served with 
 a notice under Rule 126 or with an appointment under Rule 
 128, neglects to attend at the time appointed ; the Master 
 is to treat such non-attendance as a disclaimer by the 
 party so making default ; and the claim of such party is to 
 be thereby foreclosed, unless the Court orders otherwise, 
 upon application duly made for that purpose. Chy. 0. 447. 
 
 Xotwithstanding a s\ibsequent incumbrancer has been foreclosed under tliis 
 iiu/c, he may in sonic cases obtain leave to prove his claim. Applications for 
 leave to be let in, after the time lias expired must Ih; obtained from the Master, 
 if no Tv\u>Tt has been made, and where the rejwrt has issued, then uiKjn motion 
 in Clianil)t'rs. After a Master has intule his (a) general rejx)rt, he is tneii/iniitui 
 iitHdi', and there would therefor Imj no jurisdiction for the ]Master in Ordinary 
 to entertain such an aimlication under Rule SH ; but a Local Master having a 
 general jurisdiction in Chambers under Rule 138 would apjjear to be entitled to 
 entertain mich an a])|)lication. In Ikchrr v. Wehh, 7 F. R. 445, relief was 
 given on the tenns of postponing the applicant to a subsequent incumbrancer, 
 who had duly proved liis claim : and see CiiUll v. Simons, 8 Beav. 243 ; Hull, 
 V. Fnleomr, U Jur. N. S. 151 ; Cameron v. Wolfe Ixland R. W. Co., (i P. R. 
 Ill; but in Ro!<h v. Stevvngon, 7 P. R. 126 ; Sterling v. Caiiipbill, 1 Chy. Cii. 147, 
 relief was granted, without i>08tiK)ning the applicant. 
 
 Wiiere an incumbrancer had proved his claim on one mortgage, he was after- 
 wards let in after reiK)rt, on payment of costs, to prove a claim on another 
 mortgage with a view to consolidating them : Ross v. Stevenson, supra. 
 
 \yiiere a iH-rson added as a subsequent incumbrancer, apjwars and disclaims 
 he in not entitled to costs : Hatt v. Park, (5 Gr. 553 ; Lewin v. Jones, 51 L. T. 
 N. S. 59. 
 
 1JJ0. When all parties have been duly served, the 
 Master is to take an account of what is due to the plaintiff, 
 and to such other incumbrancer or incumbrancers (if any), 
 for principal money and interest ; and to tax to them their 
 costs, and settle their priorities : and also to appoint a 
 time and place, or times and places, for payment according 
 to the practice of the Court. Chy. 0. 448. 
 
 Proof of Service. — It is the duty of the Master, before proceeding to take 
 the accounts, to require due proof to lie adduced of service of the necessary 
 |)rucee(lings on all ))arties not attending before him who are entitled to notice. 
 All subsequout incumbrancers, are entitled to attend the taking of the account, 
 &n(l It Would seem also necessary that the defendants named in the writ, should 
 also l)e notified, even though they have not ap])eared : see note to Rule 128. 
 
 , TUtog Account— The production of the mortgage, and affidavit of the 
 incumbranoer proviiig his claim is prima facie sufficient proof of the claim: 
 [ourt v. Hiilhml, 8 P. R. 213 ; Elliott v. Hunter, 24 Gr. 430 ; Pollocic v. Perrv, 
 .••'fofl; Hinicoek v. Maulson, 10 Gr. 483; Warren v. Taylor, Gr. 59; 
 he need not go into evidence to prove that the amount is unpaid : Markle v. 
 Bim, 13 P. R. 135 ; where the bill was pro confesso, the mortgagee was bound 
 to state the amount actually advanced : Sterliwj v. Riley, 9 Gr. 343 ; and in 
 every case it is com|)etent for the parties, if the mortgage has not been made 
 tiir the pur|x)se apj)arent on the face of it, to shew in the Master's office, the 
 "'*' Punwap f or which it was executed : lb ; Penn v. Lockwood, 1 Gr. 547 ; 
 
 \m !l! ^^'^ ^'"'''" ''^''." Rr.1ining Co., before the Master in Ordinary, 7th May, 
 •*•% the learned Master waH of opinion that he was not functus until his 
 
 ""ixirtwasfilpd. 
 
 J.A. 16 
 
 225 
 
 Rules 
 129, 130. 
 
 Parties not 
 attendiiif;, 
 who have 
 been duly 
 served to 
 be fore- 
 closed. 
 
 Applica- 
 tion of in- 
 CMinbr- 
 ancer to be 
 let in to 
 prove after 
 turclosure. 
 
 Terms on 
 which 
 motion 
 ({ranted, 
 
 Incumbr- 
 ancer dis- 
 claiming, 
 
 costs. 
 
 J faster 
 to take ac- 
 counts of 
 plaintiff 
 and incum- 
 brancers. 
 
 Proof of 
 service of 
 notice. 
 
 Taking ac- 
 counts, 
 prima faeie 
 proof, what 
 
 Affidavit of 
 claimant. 
 
 
r ;:* 
 
 226 
 
 Rule 130. 
 
 stated 
 account 
 may \ie re- 
 lied on in 
 M. O. when 
 
 Mode of 
 taking,', 
 when 
 equity of 
 redemp- 
 tion 
 divided. 
 
 Consolida- 
 tion of 
 mortgages. 
 
 OFFICERS AND OFFICES. 
 
 Jiroiniire V. (.'umiiw/linm, 13 Gr. .WO; Morrimiii v. RohitiKoii, V,HU;4H{); or fnr 
 which it i.s hfld an security : IiiilUx v. Ilitchrixt, 1(» <ir. 301 ; Mi-lutm'f v. 
 Thimjmin, (i Ont. 710; lil C". L. .1. .3!t3. But to ri-duce the amount below tin- 
 amount apparently Hecuryd, the evidence must be clear : FruKir v. Lncie, 10 
 (Jr. 207. 
 
 But where a mortgagor had received only a i)art of the mortjfage numey 
 but jifave a receijjt for the full amount, and the mortiragce thereuiion, and Mere 
 any payment luwl fallen due under the mortgage, a.s^igned it to a tliird iiersun 
 who took it liom't ,ti<lr without notice that the full amount had iiut liccii 
 advanced, it was held that the mortgagor couhl not as against tlii' a.«sigii('e 
 dispute that the mortgage wa« security for the amount it pui'ijortcd to w-cim', 
 ami for which he had given the receipt : Bickirtun v. Walbr, 31 Ch. D. 151; 
 .53 L. T. N. S. 731. 
 
 Collateral advantages stipulatefl fcjr by a mortgagee over and uIhivc his 
 principal and intere.st ; cf. .a Ik mits, cannot be recovered : Jmntx v. Ktrr, W 
 Ch. D. 44!» ; (50 L. T. N. .S. 212. 
 
 A mortgagee in ])ORses«ion by an agent may be compelled to give a detailed 
 account of the receipts by the agent ; an account merely of the lum|) sums 
 received from the agent is insufticient : Noyes v. Pollnck, 30 Cii. 1). 330 ; 5.1 
 L. T. N. S. 430. 
 
 Where the secretary f)f a building society had given the society a mortme 
 to secure a loan payable by instalments "and other moneys becoming due Innii 
 the mortgagor to tlie society," it was held that the mortgagees could not hiild 
 the mortgage as security for nunieys emliezzlwl from tiieni by the inortgapT 
 after he hiul assigned the equity of redemption, as against the assignee : B(iili> 
 v. Suiidcrlaiiil, L'l/. ImhtKtrinl Socictii, iM L. T. N. S. 808. 
 
 A derivative mortgagee is bound to account to his mortgagor for all ))rofits 
 made by him : thus where a derivative mortgagee by rei)resenting liiiiiself tn 
 be the mortgafjee obtained iin assignment of the etpiity of redcniiitioii wliicii 
 he subsecpiently resold at a profit, \\v was held bound to account for the jirofit 
 so made : Wilking v. McLatu, 10 (.)nt. ; 13 Ont. Apj). 407 ; 14 S. C. K. tl. 
 
 The plaintiff or defendant may rely in the Master's office, on a stated account 
 set u|) m the ])letulings, although no evidence was given of it on the trial : Kiik- 
 hum Life Aannr'iHCc Co. v. Al/oi, 23 (ir. 238 ; and .see Iiii/Hh v. tliU-hrid, 10 Gr. 
 301 ; Niil v. Ncit, 15 (Jr. 110; Hohmtr v. ShiitU 28 Chy. D. 111. 
 
 The M.aster in taking the account under the usual judgment in a mortpp' 
 action for sale or foreclosure cannot go into any (pu'stion affecting the validitv 
 of the i)laintiff's security : MclJoiK/afl v. Li'ikLvii/ Piiyivr Milh Co., 10 P. K. 
 247 ; 20 C. L. .1. 133, 2,5.3; Wilci/ v.' Lnhmrd, 10 P. R. 182; Bickfmtl v. (Imv\ 
 Junction Ry. Co., 1 S. C. R. OJMi, and see Be Muiisic, 10 P. R. !»« ; 20 C. L. .1. 
 112. 
 
 Wheiv the claim is brought in, in the name of the Accountant of the Court 
 his certificate of the amount apjjearing due by his iKioks and that he ha.s mt 
 been in possession is sufficient /iri ma facie evidence of his claim : Hnlmfft"!^- 
 Vawhrhoijart, 19 C. L. J. i)7 ; this was a decision oi the Chancellor and 
 Proudfoot, .1., on the matter lieing submitted to theiii. 
 
 As to the proper method of taking the account, where the mortgagor ha» 
 sold the equity of redemption in part of the mortgaged lands, and ha» agtwl 
 to indemnify the grantee against the mortgage : see Perkin.i v. Vnndcrlip, 11 
 (Jr. 488. 
 
 Consolidation of Mortgages.- A mortgagee has a right in actions for redemp- 
 tion, or foreclosure, to con.solidate his mortgage with any other inortme held 
 by him and made by the same mortgagor : }Vattx v. Si/nicn, 1 1). M- « "• -f!'- 
 .Selhyv. Pomfrct, 1 ,). k H. 330 ; 3 D. G. F. & J. 59.5 ; Johmton v. Bad, 2!Mir. 
 29<j. A subsecpient incumbrancer added in the Master's office has the same 
 right: Merritt v. Stcphrnson, 7 (Jr. 22; Bogs v. Stevenson, 7 P. ^.121).''"' 
 the right to consolidate cannot be enforced against a subsequent regiHtered pur- 
 chaser, or incumbrancer, without actual notice : Broiver v. Canada Peniiontnl 
 Building Societu, 24 Gr. 509 ; JohmVm v. Bcid, 29 Gr. 29<) ; MiUcr v. ^row. 
 3 Ont. 210. Nor can it be enforced, where prior to the creation of W 
 
 MA 
 
 second niortgagi 
 redemption in tli 
 nin'i» V. Jiirilan, 
 D. 630; 40 L. T. 
 one of the mortg 
 or life estate : B 
 18" ; nor can a in 
 80 as to throw tl 
 Hm\t,'iG. P. J). 
 allowed in favor ( 
 mortgages is not 
 Chy. 117, 503. 
 
 When an inteiu 
 mortgagee the am 
 notify him of the 
 is deprived of the 
 iiKJuA IiiriKtment 
 two mortgages cai 
 doimr : Bird v. JF 
 
 Tacking. -Tiick 
 
 intervening regist 
 |)rovi.sions of The J 
 IS ab(di.shed, but tl 
 the UKjrtgage may 
 
 The mortgagee c 
 from the niortgagi 
 I'miiurce v. Forhe. 
 in ea.se of his deatl 
 I'ff hv him : Tninf 
 (ir.tt); \Vilt.,y. Tl 
 is entitled to claim 
 full amount due tin 
 may have acciuiivd 
 8 Ha. 210. 
 
 The mortgag(u' 
 
 ficcasionedhvparto 
 *«v.2V„.J/, /,.„., 
 
 ^!'L. J. Ch. 020 • 
 to realise, his secur 
 !'■ 1-2 land the co, 
 \l- ^. S. 121 ; 1 
 «itliout the concur 
 
 Merjer-Where 
 
 "on- a question wh( 
 w intention, and w 
 i;.e8ume any such ii 
 ■Mmoe Compani, 
 nmer V. Vamlu^r 
 Md8ee&«v.^„,„, 
 
MASTEIi 8 OFFICE — FORECLOSURE, SALE, ETC. 
 
 227 
 
 second mortgage, the mortgagor had assigned, or mortgiiged, his equity of Rule 130. 
 
 redemption in the firnt mortgage, as against such assignei , or mortgagee : Jrn- 
 
 nhm V. Jin-'liiii, (J App. Cas. (i'.IH ; 4") L. T. N. S. 593 ; Harfrr v. roliiuni, li)Cli. 
 
 D. ii30; 4t» L. T. N. S. IM ; and see /Inker v. i/rai/, 1 CI'.. I). 491 ; nor where 
 
 one of the mortgaged estates lias ceased to exist, i".;/., when it was a leasehold, 
 
 or life estate : JU R<i<i<i<tt, ex parte Williiims, 44 L. T. N. S. 4 ; .50 L. J. Chy. 
 
 18"; nor can a mortgage of realty l)e consolidated witli a mortgage of chattels, 
 
 80 as to throw tlie del)t secured by the realty, on the chattels : Clieaworth v. 
 
 Hunt, .") C. r. 1). 2(ifi ; 42 L. T. N. S. 774 ; 40 L. .1. C. P. 507 ; nor can it be 
 
 allowed in favor of the p! intiff in an action for foreclosure, where one of the 
 
 mortgages is not in default : Cummiim v. FIttclur, 42 L. T. N. S. 859 ; 49 L. J. 
 
 Chy. 117, 5(i3. 
 
 When an intoiding jnirchaser <jf the equity of redemjttion inquires of the MortRagee 
 mortgagee the amount due on a jtrior mortgage, and the mortgagee neglects to may lie 
 notify liini of tiie claim to c(msoliflate tiie security with another, the mortgagee ostopppil 
 is deprived of the right of consolidation as against such person : Dominion Sar- g!^,?ij,,'i,",j,'. 
 iiijisib Invcitinent Comixinii V. Kittriili/e, 2li(iT. i)Sl. So also the jissignee of ' "' 
 
 two mortgages cannot consolidat<^ them if his assignor was precluded from so 
 doin? : Bird v. Wena, 33 Ch. D. 215. 
 
 TacUng.— Tiickinga subsequent, to a prior incumbrance, so as to cut out an Tacking,— 
 intervening registered incumbrance, can no longer he done so as to defeat the what 
 pvisiousof Thr Reijistrii Aet, (K, S. O. c. 114,) s. 83 ; and to this extent tacking c'limstnay 
 IS abolished, but there are still some instances in which claims not secured by J,'® Jf-'iJ^i. 
 the mortgage may l)e tacked thereto as a condition of redemption. ' „f^„^ debt. 
 
 The mortgagee cannot tack to his mortgage debt a sinqjle contract debt due 
 from the mortgagor: Ferijuaon v. Frontetiac, 21 (ir. 188; Canndinn Bank of 
 CiMiiuree v. Furhix, 10 P. K. 442 ; Imt he may "s against his rei)resentatives, 
 in ease of his death ; iind he may tack all i)rior charges, or incmnbrances, paid 
 off l)v him : Trnut A- Loan Co.' v. ('nthhert, 14 dr. 410; Teeter v. St. John, 10 
 Gr. *tj; Wdh V. Tlie TruM .(• Loan 0>., 9 Out. 170 ; 20 C. L. J. 407 ; and he 
 is entitled to claim as against subse(pient incumbrancers, or the mortgagor, the 
 full amount due thereon, no matter how advantageous the tenns on which he 
 may have aaiuired them : Watkirm v. McKeUur'l (ir. 580; JJobsun v. Land, 
 8da.21(i. 
 
 The mortgagee is also entitled to tack to his mortgage debt, any costs 
 occasioned by partof the mortgaged estate being expropriated under any statute : 
 ftMv, Thi- Metrnpo/itan Board of ]Vork.i, 14 Cli. D. 372 ; 42 L. T. N. S. 085; 
 4!) L. J. Ch. 1)20 ; and also any costs incurred in jirotenting, or endeavoring 
 to realise, his security : Wilken v. Sanioti, 7 Ch. D. 188 ; and see Ride 57, note 
 !'■ ^i^; and the costs of an alK)rtive sale : Farrer v. Laceii, 31 Ch. D. 42 ; 50 
 L. T. X. S. 121 ; but not the costs of unsuccessful proceedings imdertaken 
 without the concurrence of the mortgagor: Welix v. The Trust it- Loan Co., 
 nqm. 
 
 Merger.— When- an incumbrancer obtains a release of the equity of redemp- 
 tion, a question wliether his incumbrance is merged arises. This is a question 
 of mtention, and where it is obviously not for his Ix'Uefit, the Court will not 
 i|.e8umeany such intention : Hart v. Mc<Jiie»len, 22 (ir. 133 ; North of Scotland 
 Mrtaaiie Cnmpanii v. (fervtan, 31 C. P. 349; Elliott v. Jai/ne, 11 (ir. 412; 
 » caver v. Vnndunen, 27 (ir. 477; Macdonald v. BuUivant, 10 App. R. 582; 
 mweBell V. Sunder/and BuUdimj Society, 24 Ch. D. «18 ; 49 L. T.N. S. 555. 
 
 Improvements.— Where a sale of the mortgaged projx'rty under execution is 
 Ta} u ^''"'^*''' '*• entitled to imi)rovements : Shaw v. Timn, 19 Gr. 49C ; 
 ana also when a sale is made by the mortgagee proves invalid : McLaren v. 
 frmer, 17 (ir, 507 ; Carroll v. Rohertmn, 15 (ir. 173. The exi^ense of erecting 
 \Ta^ "".' *** flisallowed : Kerhy v. Kerhn, 5 Gr. 587. Exiienses of plant- 
 ng and tendmg fruit, and ornamental trees, suitable for carrying out improve- 
 ments cominenced by the mortgagor were allowed, but not their value at the 
 ZLh • u"''*^'"" '■ .^."'^'' "■ 'f"hniion, 12 Gr. 474. Where the mortgagee is 
 "1 with rents arising from improvements made b.y himself, he shoiud be 
 
 Costs. 
 
 Merger, a 
 question of 
 intention. 
 
 Improve- 
 ments.— 
 What al- 
 lowed 
 morteagre 
 in posses 
 sion. 
 
 'fjf'^Jn.-..»'jT-*gi'^j 
 
 
 
 
 1- V £i 
 
 i-.m 
 
228 
 
 OFFICERS AND OFFICES. 
 
 RnlS 180. allowed the expenses of such iinproveiiients, to a correHi><jndii»g amount ; Com- 
 stahic V. (fiieiit, (> (^r. 510 ; and see further as to allowances to niortgageM iii 
 {KjHHession ; notes to Bute 57 ante pp. 177-2. 
 
 li 
 
 Interest, 
 
 arrears of, 
 
 how far rt- 
 
 ooverable 
 
 against 
 
 moitKaged 
 
 land. 
 
 Bate of in- 
 tereHt re- 
 coverable. 
 
 Stipula- 
 tion for in- 
 creased 
 rat4B on do- 
 fault may 
 lie entorced 
 
 MortgaKo 
 payable 
 without 
 interest. 
 
 Compound 
 interest. 
 
 Exorbitant 
 interest. 
 
 Interest on 
 prior in- 
 cumbi> 
 ances paid 
 off by 
 piortgageo 
 
 Bate of 
 interest 
 payable 
 after time 
 for pay- 
 ment. 
 
 Interest — Interest on moneys 8eoure<l by mortgages made after iHt Julv, 
 1880, is subject to the provisions of R. S. C c. 127, ss. 3-8. 
 
 Altiidugh no arreai-s of interest which have accnietl more than nix year* 
 bt^forethe commencement of the action, can ordinarily be recovered iigaiiiHt tlif 
 land, during the lifetime of the mortgagor, yet where the action is Imniulit 
 against the rejtresentative of a deceased mortgagor who hafl covoiaiited fur 
 payment, the mortgagee may tack all the interest recoverable on tiie covenant: 
 Carroll v. Itohertmn, 15 (ir. 173 ; but where there is no covenant, cvfii in micli 
 a case, no more than six years' arrears can lie recovered : Tai//or v. Huninni, 
 111 (ir. 271 ; and see Aii-ei) v. Afitrhtll, 21 (Jr. 510 ; Hoirrren v. Jiidi/lmni, i>(;r, 
 !tti ; Weaver v. Vahdiixni, 27 (4r. at p. 481. 
 
 When a mortgagee sells under a jMjwer of sale he may retain out of tlie pin 
 oeeds, the arrears of interest though thev exceed six years : Kdmitmlx v. Wnmh. 
 L. R. 1 Kq. 418; Ford v. AIku, 15 (ir. 505: In re Maixhtidil, Mii,:4ii(/ii \. 
 Hiitrhiiiim, 34 Ch. D. 721 ; 5(i L. T. N. S. (KM. 
 
 Rate OF lN'rKKE.sT. — Since the remwl of the usury laws, the ('mirt will nut 
 refu.se toenfoi-ce any contract, which parties, coni])<>tentt(i eonti'Jict, nmyniaki' 
 for the payment of interest, provided it is understo(Kl : IWti r \ . St.Julm.Vi 
 (ir. 85 ; R. S. C. c.127, s. 1. Hut the rate of interest chai-gealyle by iMir|x)nitiiiii> 
 or coni])unies or association oi i>ersons, not being a bank, is restricted in certain 
 cases to six i)er cent, or eight i>er cent. : see R. S. C. c. 127, ss. !t-11. 
 
 Where a mortgage stipulated that up to a certain (hiy the interest to in' 
 charged should be eight i)er cent., and if the ]irinci|Hil were not then jiaid 
 twelve i)er cent., it was held the mortgagee was entitled to ii'co\er the twelve 
 l)er cent, on default : W'ailddl v. Mcl'oU, 14 (ir. 211. 
 
 Where a mortgage is nuwle ]>ayabl(! without interest, or no interest iii 
 reservetl, inter*«t may nevertheless l)e recoveretl at six isn- cent, from the time 
 of default: Mehimell v. West, 14 (ir. 4i»2 ; R<i<l v. Il//.s»„, !» I'. K. 1(«);1S 
 C. L. J. .58. ConijKiund interest may now, subject to the provisions of R. S. C. 
 c. 127, ss. 10, 11, be stii)ulated for, and recovered : ('/(irLvm v. t/i'iiilri:iuii,U 
 Chy. I). .348; 43 L. T. N. H. 2J) ; llendersnn v. />/>/«,», !l (Jr. 'A7^\ or an 
 increase<l rate in case of default : /imriit'i/ v. I'tiniell, 2 Ont. H2 : IK C^. L •'■ 
 241 ; but a mortgagee is /n-imu /ai ir oidy entitled to simple interest, and where 
 an account charging comiK)und interest was assented to l)y the niortjfagor in 
 ignorance of his rights it wiis i-e-ojHMied : htutiell v. Siiiiluii; L. K. (i, H. L 
 181 ; 44 L. T. N. S. 257 ; and a l)argain for an exorbitant rate of interest will 
 not be enforced if it is sliown not to have been understisid by the niortpigiir: 
 Teeter v. A'<. John, 10 (ir. 85. 
 
 Where the incumbrancer has redeemed a prior incumbrance, he w entitlfd 
 to recover interest on the aggregate amount oi )irinci|tal, inten-st, and Cf)st«, w' 
 paid : on the princiiml, at the rate reserved in his (iwn mortgage, and on the 
 mterest, and costs, at six jjer cent. : McMusler v. Hector, 8 ('. L. J. 284; 
 and he has a lien on the land therefor as against subsequent incunibranoers; 
 Trust <{■ Loau Company v. ('iitMieii, 14 (4r. 410; Teeter v. -SV. Jnhii, W Gr. Hi). 
 But where a solicitor purchases securities at his client's request, simple interftil 
 on the amount paid, is all that is chargeable, and not the rate reserved by ™e 
 securities purchased, unless otherwise agreed : Miuieod v. .Iuum, 50 L. !• 
 N. S. 358. 
 
 The rate of interest resiTved by the mortgage, is not ncwssarily l»y*™'' 
 after default, unless the mortgage expressly so pn)vides : ''""^ v. /mw/. 
 L. R. 7 H. L. 27 ; DalJbu v. Humphrey, 37 U. C. C^. B. 514 ; Jadmn y. y/«'W. 
 78 L. T. Jour. 130 ; and a covenant to pay interest on instalments 'no*!"' 
 does not necessarily mean that interest is to be paid cm interest in o^f*"'',' 
 tioUhtrmn v. Tatterman, 17 Q. B. D. 80 j 18 Q. B. D. 1 ; 55 L. T. N. h. ^ 
 But such rate was allowed niter rlefault, by way of damages, where it vvm"''' 
 expressly shown by evidence to be excessive: SimoHto%i\.Cri(hiun,or.vi. 
 
 llMni, 10 .i„r_ 'y 
 
 i»'«r tntli,. r..cov( 
 
 ' .»8:ain8t the land! 
 
master's office — FORECLOSURE, SALE, ETC. 
 
 4il5; but in another case, where no evidence was given by the inortfcogeeH as 
 to the rate of interest after default, only six jht cent, was allowed : Archhuld 
 \: liuihlinij <(• Kmfii Axxor., 15 Ont. 237; but see .S. C. 1(5 Ont. App. 1. A 
 covenant to pay interest at a higher rate than six ])er cent, "until mortgage 
 money |)aid " dmis not entitle the covenantor to suoii higher rati- after thc^ time 
 fixed "for payment has expired : /'nwrll v. /'eck, 12 Ont. 4!»2, 23 C. li. J. it3 ; 15 
 Ont. App. i3S.— Hut in com|)uting the amount to 1» paid for redemption in 
 the cane of a mortgage the uayment of which had In'en accelerated by default 
 ill the payment of an instalment, the Court allowed the mortgage rate for the 
 ijx months allowed for redemption though it exceeded si.x |)t!rcent. : Miittklniry 
 V. ,sVf/j/icH.s-, C. ( '. L. T. 5HH. 
 
 Where an instrument provided for payment of interest at a given rate, tmtil 
 the principal money shoidd l>e |)aid, it was held that the rate contracted for 
 ciiuln not 1h' recovered after judgment IumI been obtained on the instrument ; 
 Imtonlv lefjal interest at six |)er cent, on the amount of the judgment : St. 
 Mn v! Ki//.vrt, 4 Ont. App. 213; Kx j>. I'',iri>i;ix, 2.5 Ch. 1). ;«8 ; .50 L. T. N. S. 
 10!»; but sec limtra, I'vpiile v. Si//n:sti-r, 22 Ch. J>. !»« ; 47 L. T. N. S. 32!l; and 
 sceWC. L. J. 21 ; R' Afh'iismi before Hoyd, C, 4th May, 1883. 
 
 Where tlie interest is payable in advance, the mortgagee is nevertheless not 
 entitled to iiave interest allowed for a iHriod subserpient to tiiat appointed 
 for redemption : Tiust >(■ Lixui Co. v. KiA; 8. P. R. 2(»3. 
 
 Teadsr. —Where a tender is relied on, it should lie set up by statement of 
 defence. Where such a defence is pleaded, it is soni'tinies s|K'cially referred to 
 the Ma.ster to iiuiuire as to tlie tender, or wiietlier tlie amount tendered was 
 sufficient: Kmi/)/) v. Bnuvi; 17 (tr. ()!),5. /'/•//«((. ./'(/i/c a tender stojjs interest; 
 biitif tlio mortgagee shews that the money was subsetpiently used by tlie mort- 
 gagor, and a profit made, s\il)se(|iient interest is nevertheless chargeable ; Ih. ; 
 and see I'mrcc v. Murrin, L. K. o (^liy. at p. 231. 
 
 Parol Agreements affecting mortgage. A written agreement, for vahus by 
 mortgagor to pay additional interest, is enforceable against mortgagor, tliougli 
 nut under seal: Brown v. Jtritcnti, 12 (Jr. I'.W ; and see Atlininr Bunk v. 
 /Jri'i'vi, 10 Jur. X. .S. 1121. But a verbal agreement to that effect will not 
 bind the lands, as ag.iinst a subs(K|uent imrcliaser of tlie ecpiity of redeiii|>tioii : 
 TiiUdi V. W'lilKon. 17 (ir. 2;W ; or even as against a devi.see, or heir-at-law, of 
 the mortgagor : Re Hoimtim, llmiKUm v. Hun.itim, 2 Ont. 84. 
 
 .Vn agreement for extra interest Ix'tweeii a derivative mortgagee and the 
 mortgagor enures to the benefit of the original mortgagee : (rmliunic v. Ander- 
 »"^15Gr. ISll. 
 
 Where, after tlie mortgage debt was jiartly paid off, the mortgagor re-bor- 
 nmel the inoiicy and retui'iied the receipts given for his jirevious payments, it 
 wash 1 1 that he was estopped from disputing that the amount so re-advanced 
 »iis still securcil by the mortgage : ImjUs v. (lUchrixt, 10 (Jr. 301. 
 
 Statute of Limitations. — Under a disjiute note, the Statute may Ikj .set up as 
 .ibar t(i the recovery of more than six years' arrears of interest; but where it 
 IS tAw\ oil us a defence to the whole claim, a statement of defence must be 
 filed; Wrhjlit V. Mimjnn, 1 Ont. App. 013 ; Vattannch v. Urquhart, G P. R. 28. 
 
 .\lthough ten years is now a bar to the recovery of money charged on land, 
 ■V against the hind, R. S. O. c. Ill, s. 4 ; yet it was held that the right of 
 .wtion on the covenant was not barred until the lapse of twenty years under 
 KS. 0. c. (iO, ss. 1, (i : AUua v. McTavish, 20nt. App. 278 ; Macdonaldv. Mc- 
 i>'"'iM, 11, Ont. 187 ; MvlJjmdd v. KlUolt, 12, Ont. !W ; but see contra, iautton 
 y. m<m, 22 Chv. 1). 511, 48 L. T. N. S. 1)5 ; FeariiMe v. Flint, 22 Chy. D. 
 5"»:48L. T.N. '8.154. 
 
 The Statute is no bar to an account for more than six years' rent, as against 
 J morteagee in (Kissession : Coldweil v. Hall, 9 Or. 110 ; affirmed! in appeal, 7 
 '■•C.L.J. 42; 8U. C. L. .1.93. 
 
 where a prior mortgagee, or other incumbrancer, has been in possession of 
 any bmd, or in the receipt of the profits thereof, within one year next before an 
 
 Rule isa 
 
 Interest 
 ill advance 
 
 Tender 
 Prima facie 
 it stops in- 
 torest. 
 
 Parol 
 agree- 
 ments 
 atTticting 
 niot-tgage 
 debt. 
 
 Estoppel. 
 
 Statute of 
 
 Limita- 
 
 tiona. 
 
 How far a 
 bar to re- 
 covery of 
 interest. 
 
 No bar to 
 account for 
 rents. 
 
 Subse- 
 quent in- 
 
■ t 
 
 
 280 
 
 OFFICERS AND OFFICES. 
 
 nil 
 
 m 
 
 action is hrouKlit by any ik^mou entitled to a MUbKequcnt mortgajfc, or other 
 incinnbraiict' on the nainc land, the jxTsoii entitled to the KiihMcinient iiiort- 
 itaKe, or inininihranee, may reciover in snch action the arrears of interest wliiuli 
 iiave l)econie due durin^f the wiiole time that such jirior mort(,'a>fe, or iiiciiiri- 
 lirancer, was in possession, or receipt, as aforesaid, althou)^h siieii time may 
 iiave exceeded the term of six years : see H. S. O. c. Ill, s. 18. 
 
 An action for foreclosure, or sale, is an action to ri'cover land, and the con- 
 luenuemeiit of an action for foreclosure, or sale, by a niortgajfee out of (mlswi*- 
 sion stoj)s the runnin),' of the statute : llitilm-k v. As/i/irrr;/, i',l(!li. I). T);)!!; 4l| 
 L. T. N. S. .'lofi ; J'i'!/Ji V. //.'iil/i, 7 Ai)p. f;as. 23') ; 4(> L. T. N. S. .SLM ; //.■/.•/»,■ 
 V. Kmldcii, t, Ont. liV) ; but see Jli'iwicl.- v. /luririi/:, '21 (Jr. 3!( ; and an lujti'm 
 for ii'demption is als4) an luition to recover land : jn r Stronjf, •!., /•'((«/(/,» v, 
 J/(iij)i'i; 11 S. C. K. (13!) ; see also notes to Jtiilf 341. 
 
 Where Hume of several tenantH in connnon, are barred bv the Statute J 
 Limitations, and others of them are not ; the latter are entitled to redeem tiic 
 whole mortpiged estati-, and not merely an ali(iuot part : t'lmhls \ llarjxr, 
 2 Ont. -105; !• Ont. App. 537 ; 11 S. C. K. f)3!» ; see also Mitrtin v. Mil^ ') Ont. 
 404. 
 
 Payments to take a case out of the Statute of Limitations nuist U' mmlc 
 by the mortga^^or or his duly authorized agent; payments madf on his iH-lmlf 
 without his authority will not prevent the Statute reviving ; Scii-limilil \. Smith, 
 ■-'!( Ch. D. 882 ; 53 L. T. N. S. 137 ; or else by some jterson to whoui the right 
 of redemption is exj)ressly reserved by the mortgage even though lie is no 
 party to it : .see Lticin v. W'ihun, 11 Ai)p. Cas. 03!). 
 
 Payments. — Payment to one of several executors, is a good payment on 
 account of a mortgage held by two of them as executors : Kwart v. /iri/den, 13 
 (tr. 50; but pavment to one of several trustees, who held a mortgiigf, is 
 not i'cxmI as to the other trustees : Jiwaii v. Siii/dn; 13 (Ir. 55. 
 
 When Where a mortgagor requested his mortgagee to release a part of the 
 
 mortgagee mortgaged projH-rty on |)ayment of 4'1()0, and he released it on payment of £.5*1 
 liable for only, he was held liable for the differenct? : lie II v. ./ari-i.s, 10 (Jr. TMIH. But when 
 moneys ,i niortgagee refused to accept £l(K)offered as tlu' price of part of the mortgagetl 
 ceivad projterty, which was expropriated, and uixjii an arbitration only kW wan 
 
 awarded, the mortgagee was held not to be liable for the difference : (lumi v. 
 
 McDonald, 11 (Jr. 140. 
 
 Rule 130. 
 
 cumbrau- 
 cer, bow 
 affected by 
 
 Action for 
 foreclosure 
 effect of. 
 
 Tenant 
 in common 
 entitled to 
 redeem 
 whole 
 estate. 
 
 Payments. 
 
 Appropri- 
 ation of 
 payments. 
 
 Appropri- 
 ation of 
 purchase 
 money, on 
 sale by 
 mortgagee, 
 
 Appropriation of Payments :— 
 
 Payments made on account are to lie appropriated (1 ) as the debtor directs at 
 the time of payment. (2) When there is no direction by the debtor, as the 
 creditor directs. (3) When neither makes any directitm. the law will apply it 
 to the older debt, or as may lie just : \S'ilmn v. Jii/kcrt, 14 Ont. 18H; and see 
 Loiother v. Hinder, 41 Ch. D. 248. 
 
 A mortgagee in jK)8sesHion, and in receii>t of rents, and jirofits, may sell under 
 the iwwer of sale, if the mortgage In- in default, even though the rents are 
 sufficient to keep down the interest ; iis in the absence of any agreement tiiere 
 i-i no appropriatum of jiayments until the taking of the account : <'in-kburn v. 
 Kdmtrdx, 18 Ch. 1). 440 ;"45 L. T. N. S. 500 ; 51 L. .1. Ch. 40 ; and see llarh-k 
 V. Ashbei'ni, 19 Ch. D. 539. 
 
 Where a mortgagee sells under a ]K)wer of sale, he is bound to apjily the 
 proceeds, first, in jiayment of interest, and costs, and then either pay tiie 
 balance to the mortgagor, or apply it in reducticm of princiiial : I'lmmjim y. 
 Htuhim, L. R. 10 Kq. 497. He may sell on time, but he must give credit for tht 
 amount secured by the mortgage of the purchaser as cash, and even if he gets 
 the consent of the mortgagor to a sale on credit, he is not at liberty to convert 
 the mortgage taken to -secure that ])art of tlie purchase money for which credit 
 is given into cash, and charge the mortgagor with the discount and expenses, 
 without a distinct bargain to that effect : Jimtti/ v. O'Vminor, 5 Ont. 731 ; any 
 surplus in his hands should be either paid over to tlie party entitled, or if there 
 be no hand to receive it, it should be either paid into Court under the Trustee 
 
• •■'s^:.-'.'i- -i,r,- 
 
 MASTER S OFFICE — FORECLOSURE, SALE, KTC. 
 
 231 
 
 Relief Act, or »et apart so as to l)i' fruitful for tim l)i'iu'tit of the jtarty cntitleil. Rule 130. 
 
 If till' iiii)rtj?a!|ct' fH'j^lciit to do <'itlii>rof tlicst tliiujfs, licwill l)i' cluHXi'aidc with 
 
 iiitci'c't on till' uioiK'V HO loujjf as it rcuiiiilis in his liatids : < 'limir.i v. ./' ''■v, 35 
 
 (,'li. |). ■")-!■*: •"''' '■■• '!'• ^'- ''^- ^^^- -^ in')rtKa>,'rc who coniMirs in a sale l)y his 
 
 uiiii'tifiiK'"' '" rt'sijimsihlf for tiic due ajiplicatioii of tin- i)un;haM(' moiit'y : H'c.v/ 
 
 / .ml ,11 Ciiiiimi rri.il liitnkw It-'littncc J'lriiiitnrii/ Jiiilliliii'/ Smir/i/, 2!) Cll. D. !(.")4 ; 
 
 ML. T.N. S. 442. 
 
 If iiiiiiH'V is not fxpr.'ssly apjiropnatcfl l>y the party paying' it, the party 
 ri'i'i'iviiiK' it niay appropriate it, even up >n a elaiiu wliieii hit oaniiot 
 fiifi)n'i' ,liy suit ; l)Ut an appropriation cannot he made hy tiu; creilitor 
 iift'T action liroujfht, on i)nnKin,i,' in his account : Frusi'r v. I.nfif, 10 (Jr. 
 ■%\ lliili'fiiiiiii V. Smith, Tuy. 12H ; Anii'n'i' v. ('(irri't/icr.i, 4 l^ O. L. .F. 
 '.'1(1; /•'»//'■/• V. /'iiriKiU, H C. L. .1. H(J ; and where a niortga^'i'e held as security 
 fiirii piirtiiersiiip (leht tlie inort^'ajfe of one ii:irtner and the note of the other, 
 it viis lield that he liould not, as ajfainst an assij^nee of tlie eepiity of 
 ri'ili'iiiptioii, appropriate all payments on account of the note, hut that he 
 wiiH liiinul to apply one half of the sums jiuid out of the partnership assias, 
 (iiiiicc'jinit rif the mortufaj^e ; M"iiir v. /tiil^h'/l, 11 (tr. (>!). 
 
 I'liyments, 
 liow to he 
 iiiipniiirl- 
 a toil. 
 
 Wlioro two 
 securitioH 
 held for 
 Hiiinadubt 
 
 In takiiii,' the account, i)aymeuts on acount, sliouhl (if not otherwise appro- 
 |iri;iti'l hy the debtor or creJitor at the time of imyment) he applied first, in 
 imyiiiciit of overdue interest, and costs, and then of overdue^ princi|)al, and 
 wlicre tiicre ar<' several items, the ap|)ropriation slioidd i)e made in dischart^e 
 of those earliest in date : Mitiri'i/nr v. (laiilin, 4 I'. (J. <,>. |{. 37H ; (Uimniiinjs v. 
 Ti/kc, 1 1'. K. 1."); /^'■v.'^ v. I'i'rniiilt, VA (Jr. 200; C/in/tdii'n ('due, Jh-raiinci v. 
 .\V,/,', 1 Mer. oSO, (104 ; llV/.s -« y. yd///.v/'/, 14 (Jnt. IH.S. But where an account- 
 in;? lurty (a solicitor) had in his accounts a|)i)roj)riated payjnents to principal, 
 instfiwl of the overdue interest, he was held hound hy the a))propriation ; 
 Tii'ihirw Md'iriilh, 10 Ont. IJliK. Where the creditor claims to have appropri- 
 ati'.i .1 piivinent, the onus lies on him of showing' affirmatively that no 
 appropriation was made hy the debtor : Liiwtlier v. //inili-r, 41 Ch. 1). 248. 
 
 A mort^fatje jjiven to secure a floating balance, however, is not discharged l>y 
 payments made on account, so long as the dealings between the |)arties 
 continiu', and any balance remains due in respect thereof, even though the 
 p;iynu'nts exceed in amount the debt due when the mortgage was given, or the 
 ainiuMit of the debt mentioned in tlu^ mortgage : I'ldiirrmi v. A'c/'/', 3 Ont. Apji. 
 S); Un.iHi'll v. httivii, 7 tlr. 13; Thf Cih) iJisciunit ('ihii/hiiii/ v. JIi'Lfini, 
 L. U. !IC. 1'. (;!I2 ; FciiOm v. lUnckw,,;,!, L.' R. T) P. C. KiT ; but 'see Re Ih;nrn, 
 i (ir. Ill, 'm ; Ihirhamn v. Kerhy, 5 (Jr. 332. 
 
 P.\VMKXTiiY(Ju.\K.\NT()K. — A mortgagee who has assigned tlie mortgc ge, and 
 cMveniHitt'd for its paym-'Ut, is entitled to a lien as against the mortgvgor .'or 
 all payments so made : Fleuiiii;/ v. /'((hifi; 12 (Jr. 22(». 
 
 losoranca Money. — When the mortgage ontains no provision for the appli- 
 cation of insurance n'.oney, the mort<ag(M' is not bound to apply it in 
 reduction of his del)t before the time appointed for payment, or on the interest 
 to iiccnu' thereon, \intil it is actually due. In such a case, where the mortgagee 
 •ifCJincs to apply the money on his debt, or inter>'st, the mortgagor is entitled 
 to have the lu'ineys laid out in reli.iilding, and n-storing, the (jremises to the 
 *!'(M(/iM ; l)nt if the mortgagtie retain the money he must ajjply it on account : 
 ■Wdiii v. SI ,1-11, 1,; (Jr. 3IM). He, however, must apply the money in payment 
 iif instilments in arrear or as they subieciuen* y fall due; he cannot without 
 the mortKayor's consent ai)ply it in |>aynient of moneys not yet due : Cnrham 
 V. KimiM'iH, 17 Ont. 432. 
 
 In mortgages executed after 11th March, 1S7!*, after default, there is a 
 statutory jKiwer to insure, and the mortga,cee may recover premiums paid, 
 with interest, at the rate reserved by the i.iortgagt^ : R. S. O. c. 102, s. 18. 
 "here the mortgagor insures, th nijjh there be no covenant, in the event of a 
 I'Hs the mortgagee may have the nisurance money laid out in re-building : 
 Imp. Stat. 14 (Jeo. 3, c. 78, s. 83; .SV/«.v,/;( v. I'ei'ni«ek, 14 (Jr. (MM; followed 
 ''<fil. (lull.) t'lirr \. Fire Insiiranoe AumicHttiim, 14 Ont. 487; the ImiH-rial 
 statute is now rejtealed as to this Province by 50 Vict. c. 2(», a. 154, (O) ; but 
 see now R. S. O. c. 102, s. 4. 
 
 Whore no 
 npproprl- 
 iilion by 
 payer, liay- 
 nionts now 
 to be ap- 
 plied. 
 
 Appropri- 
 ation of 
 ))aymeuts, 
 wliere 
 mortgage 
 given to 
 secure a 
 Moating 
 balance. 
 
 Payments 
 by guaran- 
 tor, lien 
 for. 
 
 Insurance 
 money, 
 liow appli- 
 cable. 
 
 •12 Vict. c. 
 20, B. 1 (O). 
 
 Mortgagee 
 nia^' have 
 moue.' ap- 
 
 Elied lU re- 
 uildiug. 
 
282 
 
 0FPICF.R8 AND OFFICES. 
 
 HI 
 
 ■■ ■■! 
 
 Rule 130. 
 
 Mortua^tm 
 InBuriiiK, 
 whether hi^ 
 can recover 
 bttth.iliHur- 
 anve and 
 debt, 
 (lumre. ! 
 
 IiiHurniice 
 liv luortna- 
 Ror. 
 
 iiieiit of 
 tnurtKa^jo 
 to liiHiir- 
 aiice t;o., 
 effect of. 
 
 A inurtKiigc** iiiHoring uiil of hiM own fuiulH, Ih not Ixxind to )(ive thx 
 niortgitgor credit for the uioneyM rewivwl in the event of a Josh ; Rmud' 
 V. Knhfiixiiit, 1 Chy. Ch. 72. Nor in lie entitlocl to char^fe him witli tim 
 preiniuniH, unlexH the inmirimoe iH effected under K. H. (). c. lOL', vH/mi . 
 MiIiiIiikIi v. Oiihin'i) Itdiik, 'H) Vtr. 24. Jint whether a niortgiiKec oiiii recover 
 liotli tiie inMiirance money, and alxo tlie in<>rt((a)fe delit neenis doiihtfiil : hh' 
 Ciisl,ll<ii,i V. /'rix/nn, H q. li 1). (113 ; 4(i L. T. N. S. .MW ; lil C. L. .1. 143; iw 
 to tlie rifflit of a Hccond inort(,'aKee to recover on an inxiiranoe etfcctcd l)y him, 
 when there iH almi an insurance on tiie Manie property effected l)y a prior iiinrt- 
 ^agw : Hee W'fulmiiixti'r v. (i/usi/i,!!', 12 Ajip. Cas. (MMt ; i)!) L, T. N. .S. (i41. 
 
 Where the mortgagor iiad injured in purHuance of a covenant, Ionm, if any, 
 being payable to the mortgagee, and the buildingH were burnt by the iiKirt- 
 gagor, and the insurance money paid to the mortgagee, who iissigned the 
 mortgage to the insurance company; it wiix held, that ina'<iimeh iw tlic 
 mortgagor could not have recovered on the jxilicy, the insurance coniiianv 
 were not lH)inid to give credit on the mortgage debt for the amount ot tlic 
 insurance money, as against a jiiiiniii' inuuniTirancer : WcslmncDll v, llitnlrii, *i 
 (ir. ;W2 ; /Jriiii/.itoiic v. The Wi'sti-rii A,i.itiritii(f Ciiin/iKiii/, 14 (Jr. 4(11 ; S, (', \\; 
 (ir. !( ; and see h'lfin v. I'ltinn Fin- Insuinnif I'mnjiini!/, H Out. 'SM • lliill\. 
 Siirtli liritisk i(' ('iiiiimcrrid/ Inmiivniy ('ompaiii/, 14 (hit. .'122; ReiUiik v. 
 Tlf Stiiiiji'iit Mii/uul / 11.111 mine <'(iiiipii III/, 14 Ont. 50(1; 1.5 Ont. App. ;«1,'{; .Vh.<, 
 if the mortgagor had not l)een debarred from recovering : J/niir.s v. /iduiiiiiini 
 liimi I'd lire ('i>m/inn!/, 2 Ont. 8!( ; this casft was reversed on ap|M'al ; hi* 111 
 C L. J. MH, but not on the iK)int for which the case is here cited : Aiinlin v. 
 Sliiri/, li) (.ir. 3(M1 ; and see j'niriiieiiil Inmirtiiire ('nmiiimi/ v. /{ee.snr, 21 (!r 
 21M1 ; liiti-tim v. (lure IHslrict M. F. I. ('ii.,Vi (Jr. lod ; affirmed in apin-al. 
 January 21, 1875 ; see K. & J. Dig. IHlil, and jier I'roudfoot, V.C, 22 (ir. 
 384 ; (i'leeii v. Hewer, 21 ( !. P. 531. 
 
 A Iniiler and other maciunery were held as l)etween mortgagor and niort(,'ii(r«'s 
 to l)e included under the word "building," as they were treateii by the parties 
 as jiart of the freehold and parsed as such, and the mortgagor wus held 
 entitled to the lienefit of the insurance thereon as on part of the building: (Vor 
 v. The Fire /ii.siirniice A.s/i(ieiatiiiii, 14 Ont. 487. 
 
 Rent, Rents. — A mortgagee in jwssession may l)e charged with rents actuftlly 
 
 chavKeablo received, or which, but for wilful neglect and default, he might lia\e rwcivwl; 
 
 against or he may be charged with an occupation rent when lie hius Ixen in actuiil 
 
 mortgagee, occupation, using and enjoying tiie mortgaged |)roi)tu-ty in the place of a tciiaiit; 
 
 in tiie latter case, he is charged with a fair rental, such as a tenant iiiiglit 1»' 
 
 e.\|iected to give, unless it is shown that he actually made a larger |in)tit: 
 
 Truehek v. /{uhei/, 15 Sim. 2(55 ; S. V. Phill. 3!)5 ; Cnlil'ireU v. Hull, !l (Jr. 110. 
 
 A mortgagee is accountable not meicly for his actual receipts whilst in 
 liossession, but also for whatever is received by those to whom he transfers [x »• 
 session under an arrangement ino|)erative to transfer title, and in derogation »f 
 the rights of the mortgagor : Sutinmil Hank nf .', nut ralasia v. I'nited Hand in 
 Hand Hand of llupe, 4 App. Ca. 391. 
 
 A mortgagee in possession, but not in actual occupation, will not l)e lielil 
 liable for any greater rent than he n«tually received, unless it is clearly e.^talv 
 lished in evidence, that he knew a greater rent mi^ht and could liave been 
 obtained, and that he refused, or neglected, to obtain the same : Mrrrim v. 
 Cronk, 21 Gr. (10: Wuddell v. McVnll, 14 (ir. 211 ; Ptnn v. ZoriHvW, 1 (Jr. 
 .547. 
 
 A mortgagee receiving rents, or goin^ into occupation by con.seiit of tlie 
 mortgagor, must account as a mortgagee in iH>8se8sion to a suiisecpieiit incum- 
 brancer, or purchaser of the etpiity of redemption, although the mortgagor has 
 directed the rents to be applied in payment of another debt due by hini to the 
 mortgagee : OUiminr v. Rue, 21 (ir. 284 ; ( 'onrt v. Ilollund, 2i) (ir. I'.l ; and when' 
 a mortgagee, pursuant to a |H)wer, enters into iK)SHession and manages the 
 mortgaged estate without default, at a loss, he is entitled to be rwiouiM-d the loss 
 as against a, puisne incumbrancer, not only out of the rents, but also outof any 
 surplus procfcsds arising from the sale of the profterty : Jiomjxis v. A't'/i//, 33 
 
 Mortgagee 
 in )>OHa-<i'f 
 Hion by ar- 
 rangement 
 with 
 
 mortgagor, 
 how far 
 liable to 
 subsequent 
 incum- 
 brancer. 
 
MA3TKR 8 OFFICK — FOURChOSURE, SaLR, RTC. 
 
 •288 
 
 Ch. I). !J7!I : W L. T. N. H. 1!M». Hut when a iii(trtKivK''t mifftTH tlu' iiuirtKUK<ir to Rule 130. 
 
 re!(miit'|nit<H<"<Mi(m lii' waHfH t<t In- liulile to luicoiiiit Uiv n-iitH : AiV»' v. (ii'i.r/i; lil 
 
 dr. 174. Wlifre tlif inortKUK*' iirnvidi-d for pivyineiit of five imt ct-nt. intfrcMt, 
 
 H' iiH.'ihlc, if |>iiiictually puid, to four-uiid-a-lialf iter cent, a iiiortxaK*')'. on k*'>i>K 
 
 intii ii<>HM*'>i'<iciii, after clofault, in not iMnnid to lurccpt tli« lower rate : ' iiimi 
 
 «(/(/ V. liii/i'ini, KiCh. I), ra (overndiMK '>'/«///.•< v. //(//(/.k, !».hir. N. S. llMll) ; 
 
 Hiiiililw I'lnii/M/, 41 Oh. I). .'JHS. A niorti^aKee in poHHettMion is entitled to 
 
 Im' ullowed a coniniixHlon reaHonahly paid for collecting; the rents : I'liimi linnk 
 
 \. Iifiriitii, nii/tni : hnt nee Kim v. Iliijhen, 2 Cli. 1). 148. 
 
 .V mortjfaffee in |K)HMenMion, Nhoidd not lie charjfed with rest.son rentH retteived IteHts, 
 l)V liiiii, until lie ha» U-en i)aid in full, when hi.s nionev was in arrear when he wliuie 
 entered: r,,/,/,,-,// v. Hall, !» (Sr. 110; attirnied in ap|.eal, 7 U. C L. J. 42; « "■',',^''*^"' 
 r. C. L. J. il3 ; hut hy settiuff up a title adverse tti the niortKaKor's rijrht of '' ' 
 reiietiiption, he may lose the miniunity of an ordinarv niortKajree : Niilimii'l 
 Btiik iif Aiislriildsiii V. Cititfd /tinid in llmiil ttmiil i>/ i/'i/n; 4 App. ('as. Hill. 
 
 N'litwithstandinx the .Statute of Liniitations, a inortpi^'ee in possession may MnrtKaKot« 
 U' coiuiielled to account to the mortgagor for more than si.\ years' rent : in posses- 
 r.ililinll \. Hull, xii/iid ; although if tiie mortgagee have hei'U overpaid, the •*'""•"••!' 
 statute would d(iid)tlesH Ik) a bar to tlie mortgagor recovering payment of more '""""' ''y- 
 timii six yean)' aiTears. 
 
 Where the nu>rtgag<-e is in (K!ou|iation, lie shoidd be charger! with an oceupa- 
 tiiin rent up to the day ap|Kiinted for payment : /'//"' v. Siiii/'rr, 1 (Miy. Ch 'Jol. 
 
 Tlie mere existence of an attornment clause in a mortgage, d(K's not nuike the .vttoni- 
 iimrtga^et! lial)le to ivccount to a sul>se(|uent incundu'ancer, as a mortgagee in nient 
 IHPHsession : Staiilii/v. <-'niii(li/, 4S L. '1'. X. S. KHl ; but see A'c S/^irhiun Iron Cuni- clause, 
 , '««, lIM'h. 1). XV^; 40 L. T. N. S. lil; /vV /"'//'■ ./(/</*-,(, 14 ("h. I). 72.5; 43 eiroct of. 
 L. t. N. .S. 272 ; A'r iKirli- I'limirll, 1(1 Oh. I). 2'_'(". : 44 I.. T. N. .S. 220 ; l'> 
 IKirle lliin-lsu,,, 18 Oh. I). 127 ; 45 L. T. N. S. 2iMI. 
 
 Estoppel -A mortgagee may be ostopiK-d as against a jK'rson inquiring of liim I'.stoppel 
 till' miiDiint due on liis mortgage, with a view to ))urchasing the equity of arising 
 rMleni|itiiiii, from claiming more than the amount then claimed ; Ihitniniuit fromrjjpro- 
 !<'in,i;i.ui- lni;:itm,'iil Co. V. /{ittridur, 2:i ( Jr. (Wl. Hut if such representations to"iiur«on8 
 areiiiiwle to a [H-rson not known to be intendinij to purchase, or (h'al in respect joaling 
 iif, tliee(|uity of r.'demption, they are not i>iuding on the mortgagee, although withu(|uity 
 iiotiiiilly acted upon : Mull'itltx. /iaii/, nt f'ji/ifr <'<ini((lii,'> (ir. 'Si4. of reilemil- 
 
 tion. 
 
 Die iiKirtgagor nuvy, by his oonduot, be also estopped from settnig u\> 
 iwyineiiti on account of the mortgage : IiijUh v. <>ilr/irin/, 10 (ir. 301. 
 
 Vendor's Lien, -Void Mortgaga for Purchase-money. - Where a mortgage Vendor's 
 wilsffiveii liy an infant for purchase money, and the infant on coming of age ben en- 
 luiiilitwl the pui-chasp. but repudiated the mortgage ; an assigne<! of the mortgage | "'*' ' 
 «'iw< held nevertheless entitled to a lien for the purchase money : Unut v. ,„,n.t,>ftm> 
 ir/ii7f/if,„/, 7(;i-. iVil. ' taken for 
 
 piiroliaso 
 
 nionoy, 
 invalid. 
 
 Where land is conveyed in ctmsideraticm if maintenance, the vendor ha.s a 
 lii'ii fertile consideration : I'aitir v. Clnt/imiiii, (i (ir. 338 ; 7 (ir. 17!l. 
 
 Mortgage payable In Foreign Currency. - Where the mortgage debt is pay- Mortga^o 
 iililein lawful m mey of the United .States, the mortgagee is entitled, at his iiayal)le In 
 "ption, to claim the amount in tlie current money of that country, or its '°^^.g "„y 
 tiniivalent in Canadian currency, at tlie time of defaidt made in payment : ^' 
 
 \lnmUy. »■„:;/, 10 (ir. 231 ; Ciuir/ord v. Jituiil, 14 C. P. 87. 
 
 Priorities.— Fonnerly the priorities were determined in the case of executions, Priorities, 
 hy the date of the delivery of the writs to the slieritf for execution and for this as to execu- 
 imriKise a fraction of a day was regardc'd : Jitrh-maii v. Jan'is, 3 U. 0. (^. B. tions. 
 '^1; Coni-erse v. Michie, 1(5 C. P. 1(!7. But now under tlie Creditor'ti Itilief Act, 
 K. S. C). c. t)5, all execution creditors whose writs are in the sheriflf's hands to l)e 
 necuted are entitled to rank imri luiitm : /Jun-ei/ v. McXeit, 12 P. R. 3(>2 ; 24 
 C. L. .1. 12*2. But an execution creditor directing the sheriff to stay execution, stay of 
 may now, as formerly, thereby lone his priority as against any siibsequent execution, 
 Mecution then in, or thereafter coniiug into, the Bheritf's hands, before the stay effect of. 
 
284 
 
 Rule 130. 
 
 Priority of 
 Mortya^'Mts 
 
 Voluntary 
 mortga- 
 gees. 
 
 Exei^ntiDii 
 creditors, 
 purcUiiMirs 
 at BliorilT's 
 sale. 
 Abscond- 
 iiig dobtor, 
 imiiiirv as 
 to. 
 
 Credit -.ii, 
 when jiost- 
 poued. by 
 conduot to 
 prejudice^ 
 of otlier 
 -creditors. 
 
 Tvo deeds 
 •era f.nuie 
 day, prior- 
 ity how 
 fettlod. 
 
 DiHi3UteB 
 between iii- 
 cumbr- 
 ai.oors,lio\v 
 deter- 
 mined. 
 
 Place of 
 payment. 
 
 Day of pay- 
 ment not 
 to be (/(>« 
 iwn Omis- 
 »ion. 
 
 OFFICEUS AND OFFICES. 
 
 is removed : Rnss v. llaiuHt<w, E. T. 3 Vict. ; Fo.iti-r v. Smith, 13 V. 0. Q. B. 
 243 ; A> ll'sn, 3 V. K. 3!»4 ; liitnh «f Mniitnal v. Minini, L>3 IT. ('. (.). 15. 414- 
 h'l'ir V. h'i)ist'>i, 1.5 0. P. .531 ; Tni.if ,(• h„(,i Co. v. Cntlihni, 13 (Jr. 412. Jiut 
 tilt' Nlieritf, after being' stayed, mit\ make a necoiid .seizure during' the ciuTeiicy 
 of the writ : (•Ktv.s v. ^'unt/i, 13 C. 1\ r>-'>. 
 
 Morttfagee.s for vahie are usually ent tied to priority, according to the tlateof 
 regi.'<tration of their mortgages ; and tl e omission of the Registrar to index a 
 registered instrument will not deprive it of its priority : Lmriii v. Jldtlibiirn, 
 •SSV. C. (.1 B. 255 ; (/ncii v. P:>:'*<^,i. S Ont. 471. 
 
 Vohmtary mortgagees, and mortgagees with actual notice of a jirior iinregis. 
 t 'red instrument, however, are not within protection of Thf Uniixtni .Ui 
 ( • -■ . S. (). c. 1 14, s. 70) : and see (imi n.i v. To)i>i,l, 43 L. T. X. S. 1 ()(» : Killl, evil v. 
 \\',i/koii, 40 L. T. N. .S. 83 ; 'A L. J. Chv. 28] ; Clarkr v. Pa/mn; 48 L, T. N.S, 
 857. 
 
 An execution creditor cannot get i)riority ove;' a i)rior unregistered deed ; 
 Itiftfrll v. JtiiKur/l, 28 (ir. 41!t ; but it would seem tliat a purcha.ser at a sheriff's 
 sale may : V(ti( HV((//if'C v. Fimdnii, 14 (Jr. 53. 
 
 When it is necessary, for the |mr)M»se of settling the jjriority of incmn- 
 hrancers, to in((uire whether a jterson who has In'en sued was, or was not, an 
 absconding debtor within the meaning of the Act, the Ma.ster may do so, 
 although the party sited may have taken iioiinKjeedings to .set aside the attivch 
 ment : Mitiitmd Binik v. Bahr, '.) (!r. !)7, 2i»8 ; hut see Martin v. tiiiiiliiii<i<r, S 
 Ajip. Gas. 2*.Mi ; 4!) L. T. N. S. 02. An att.achment only hinds lands from tlir 
 date of the seizure under it, and an execution delivered to the slieritf In-fdl-e 
 seizure made under the attachment is entitled to priority over it : Ruhinmn v. 
 B,n,i,i, 10 P. K. 127. 
 
 Where a creditor wlio had obtained security by an assignment from his 
 debtor of his chattels, and otlier assets, by way of mortgage, was notified liy 
 a subsetpient execution creditor of his claim, and informed that he would Iw 
 held answerable for his dealing with the ass(4s assigned, l«it negligently 
 allowed the debtor to use, and deal with them, so that they were lost : it was 
 held that the first creditor was thereby postponed to the second, as regards 
 other projiertv liable for the jiayment of their debts : Huntimiitoii v. Yun 
 Jirorkliii, 8 (if. 421. 
 
 For the inirpose of determining in'iorities between two deeds executed the 
 same day, the blaster may inciuire whitdi wjvs in fact first executed, and may 
 have regard to the internal evioence of tlu' deeds them.stdves, for the puriwsf 
 of ascertaining the intention of the parties niton the question of priority : <jaii- 
 nidr V. fiilkatoiir, D. C. A I. Co., 21 Ch. D. 7t)2 ; 47 L. T. N. H. 7ti. 
 
 Where a judgment h.is been pronounced on the construction of an in.>itni- 
 ment declaring .-V. is entitled to priority to ]>., such judgment is a liar to any 
 sub.se(|uent action b_v j), f(,r the rectit'cation of the in.>-trunient so as to pvc 
 him priority : the jtrtiper courst? insuch .t ease is for 15. to procure a stay in the 
 first action until his suit for rectiti(.'ation can be determined : Ciiiril \. Mo>f, 
 33 (^h. 1). 22 ; 55 L. T. .\. S. 4.53. 
 
 Disputes Between Incumbrancers. Where there is a dispute lietwHm twd 
 jiersons, at; to which of them is entitled to an ineunilirance, the Master limy 
 determine the (piestion himself, or, where to do so, would lie likely unduly tn 
 delay the ^ilaintiff and otlier parties not interested ini the (|ui'stimi, he ni.iy 
 rejMirt the incumbrance, and its priority as regar. Is other ineumliiMnecs. and tln' 
 dis|)nte Ix-tween the claimants, so that the C^ourt may give proper directinns 
 for determining the cpiestion : Mrlkmii/il v. U'riiiht, 12 (Jr. .552. 
 
 Place of Payment. The Master, in appointing the place, and manner of 
 payment, must proceed under Jtiih 85. 
 
 Persons to Redeem, and Day for Redemption. The .Master is to npiKiint a 
 day f<ir redemption. He should be careful to see that the day appoiiiteil is not 
 a Sunday, i.or a bank holiday, otherwiKe a new day will have to be :i|i|MiiiUi'l, 
 before a final order can be obtained ; Holenmh v, Lmch, 3 (Jr. 44!». The 
 
MASTER 8 OFFICE — FORECLOSURE, SALE, ETC. 
 
 omission (if thi' Master to appoint a day for redemption may be remedied by 
 order in Ciiambera : King v. Von nor, 10 Gr. 3(i4. 
 
 When tile judg'ment is for sale, one day is ap]>ointt<d six calendar months 
 from the making' of the rejiort, for the mort^'ajror to redeem thi |)laintifT, and 
 all subsequent incumbrancers who have provefl claims ; in default of payment 
 11 Hmil order for sale is made : see Utiles 'X)',\, 133 ; but see ./iiin:t v. Hiirrix, 55 
 L. T. N. S. HH4, where only three months were allowed for redemptioi'. 
 Wiu're the ind>,'nieut is for foreclosure, the subneqnent incumbrancers are 
 ordinarily entitled to successive ritfhts of redemjition in ttu' order in which 
 they iic(iiiire(l tiieir charges; six calendar month- iieing j^'iven to the first in 
 liriority, and tiiree calendar months to each of 'he others m succession : Setou 
 lOS"), iVilixUr V. J'lifti r.ion, W. N. 18.S4, 20. H\r. the Court may specially direct 
 tliatoiieday only be fifiven to all the defenda'.ts to redeem tlie idaintiff, with- 
 out prejudice to their priorities inter kc: Jidrt/ett v. Reex, L. K. 12 Kq. 3!)5 ; 
 Thitiiiwriil Creilit A- 1). Co. v. (Ile<i<i, 22 Ch. 1). 04! > ; 48 L. 'I'. N. S. 1K2 ; 
 HtnUh V. OUliiiii, 25 Ch. D. 4(i2 ; 50 L. T. N. S. 357 : Leirin v. Ahenlare <(• P. 
 Co., M L. T. X. S. 451. In Mutual Life AK.^iirance Co. v. Lonfjleji, 2f) Ch. 1). 
 (kSti; .")! L. T. N. >S. 284, Pearson, J., said that as a general rule where there 
 are several defendants, but one (hvy should be given : and see I'liitt v. Memlel, 
 Ti Lu. 1). 241 1 ; 51 L. T. N. S. 424; where the practice of giving successive 
 days for redemption, when' there are subsecpieiit incumbrancers, was de- 
 tlared to be anomalous ; and see JJiiri.s v. Mitnleii, 78 L. T. .Jour. 318 ; l)oliU 
 \. Munhii, 28 Ch. I). ()(>4 ; Tit/i/iirll v. iVicholh, 5(i L. T. N. S. 152. A/iui-ine 
 incumbrancer, and all i>er.sons claiming mider him are entitled to but one 
 day for redemption: Lorednii v. Chuyinunt, 32 L. T. TV. S. WW; Beeror v. 
 Lnck, h. H. 4 Kq. 537, and .so are judgment creditors, where there are no 
 intenncdiate iiicumlirances : lUites v. Hillvoitt, K; Heav. 13!( ; Stend v. Biniku, 
 r) 1). & S. .5(10; Anlufih v. 117, ■.(,, 1 Chy. Ch. 38!) ; 8eton, l(t85 ; Taylor & 
 Ewart, 228; but see Ctrroll v. Ucpl.-in/), 4 dr. 431. 
 
 A iMrty making default in redemjition at the time apiiointed, may be fore- 
 <'\yj.'n : Rule 3.53, and new accounts may, from time to tune, lu- tiiken without 
 furthe.' order ; HnleVi'l. When all thr subsecnient incnndirancers have been 
 fiireckw 'd, tliree calendar montiis are given to tlie mortgagor to redeem, and on 
 default, he tnay .> foreclosed. An incundirancer redeeming, may proceed to 
 foreclose the siil)se(iuent inciunbrancers and the mortgagor, as if he were the 
 <irij,'inal plaintiff in tlu' action. A subsequent incumbrancer redeeming out of 
 his order of priority may add the amount paid to his own claim as against all 
 incumbrancers sul)se()uent to himself, but not as against any that are prior; as 
 against the latter lie may claim to be redeemed in res|K-et of any claim he has 
 |;iid whicli liad priority over tlu' hitter's claim. Hut, inasmuch as a jirior 
 uicumbrancer on redeeming a siiliseipient iiUMunbrancer, in resiiect of a p 'or 
 claim paid (iff by the latter, would be entitled, to add tile amount so paid to 
 hi* own (Iclit, and to be redeemed by the latter, it will generally be found 
 iiiex|»'dient to ehiiiii the right to lie redeemed, and the incumln-ancer iiext in 
 pniirity to the plaintiff should be appointed to Ih- redeemed as to his claim. 
 without first requiring him to redeem a subsequent iiieiimlirancer in resjwct of 
 any prior cliiini paid by the latter. Where the mortgagor redet-nis after y/i/M»/f 
 nioumliraucers iiave been forecloseil, he tiierel>v opens the foreclosure as to 
 them : see H<,.r v. liriilqiivtit, (i I". |{. 2;!4 ; Oil, r v. Lord Viii(.r, 2 \\. & .1. (».50 ; 
 til), (i. M. et (;. (;;W; Ji,<,<l v. Smitli, 14 (!r. 250; 1(1 (Jr. 52: Hell \. .Siinilir- 
 ■ 'iiiil llidhi;,,;/ Soeietii, 24 Ch. 1). (ibS ; 4!t ].. T. N. S. 5.55 : and see Ledbrook v. 
 Nmmn, m L. T. N. kS. 30<}. 
 
 Where jKirtions of an estate under mortgage are conveyed away by the mort- 
 pwor, one day should be given to all the persons interested in the equity of 
 redemption to redeem : Hill v. For.ii/tli, 7<ir. 4()1 ; soalso where tiiere is any dis- 
 pute iM'tween co-defendants as to their priorities, oin day may be given to all to 
 vwleem witliout prejudice to tl; dr rights interne : (leiiend'Cretlit A- 1). Co. v. 
 '%/. 22 Ch. I). ,54<.t; 4S L. T. X. S. 182; Smith v. iHdinn, 25 Ch. 1). 4(12; 
 ■i*lL T. N. S. ,V)7; //M-'/.s v. Aherditre ,{■ /'. Co., 50 L. 'V. N. S. 451; lait 
 where th-re is a stiimlation in the mortgage that in ca.se of sales by the mort- 
 (-'•'(,'or, the iiiortgagt'e shall, on payment of a certain portion nf the inirchase 
 nioney, release the |)art sn)d, each pui'diaser is entitled to redeem Ills own part 
 
 •235 
 
 Aule 130. 
 
 to appoint 
 a day. 
 Sale, — ro- 
 (lemptioii, 
 how 
 directed. 
 
 Koreclos- 
 nre,— re- 
 demption, 
 how 
 directed. 
 
 Sul)se- 
 <|Uout iii- 
 euiubr- 
 ancer re- 
 deeming 
 out of his 
 order. 
 
 Redemp- 
 tion, how 
 directed 
 where 
 equity of 
 redemp- 
 tion 
 divided. 
 
 i 
 
 
23(; 
 
 OFFICERS AND OFFICES. 
 
 
 I,; 
 
 Rule 130. on payiiwnt of t\w stijiulatwl portion of tlie money, and the Master hIkhiM, in 
 sued a ciwe, ap|Mjint one day for each of the several |)er8on8 so entitled, t(> 
 redeem his resptotive fwrtion accordingly : Darky. White, Hi (ir. 312. 
 
 .Kight of As to the rights of purchasers of different portions of the mortgatT' I 4^- 
 
 purchasers iiit,r xr : mi r.iukrr v. L'vclis, 1" (Jr. '277 ; Joiicii v. Beck, 18 (Jr. ()71 ; I'n ,,', \ 
 of flifforent r,/,(,,r"/(, 2» <Jr. 3.'>(i, 7 Ont. Apj). 187; Bnck-lir v. Jioinnaii, 12 (ii. Vn- 
 f^f/^t.'i 1 A'""'< V. M'wl„ir.s, 28 {Jr. 334, attirmed on apt)eal, 18 C. L. J. Km; Clink \. 
 eatote Bixjnrt, 27 (Jr. -IM ; Fmxrr v. Nwjlr, 1(> Ont. 241. 
 
 Where a mortgage comnriscd l)oth real and personal estate, on tlie dcntli of 
 the mortgagor it was held that his |)ersonal rejtre.sentative was entitlcrj to 
 redeem both pro|M'rties, l)Ut that the reconveyance to liim should reserve tliK 
 right, or(!quitv of redemption, of any other |>erson or jK-rsons : Null v. Hi mn-il, 
 32 Ch. U. 43l»'; .54 L. T. N. >S. 810 ;" but see now R. S. O. c. 108, ss. 3-10. 
 
 Wliere several jxTsons are interested in tiie equity of redemi)tion, eiicli one is 
 entitled to redeem tiie whole mortgaged proi)erty and not merely a |m)|K)r- 
 tionate part, hut the recioiiveyanc" to one of several persons entitled to the 
 e(|uity of redemption simidd l)e made subject to the right of redemi>tiiiiiofsiich 
 other isrsons : J'liinr v. Murrix, L. H. .5 Chv. 227; 22 L. T. \. S. 1!H); 
 Fiii'lilx v. H(ii'i)ii\ 11 S. V,. H. (i3!*. IJut Kimhli; one of several joint mort- 
 gagors may l)e pennitted to redeem his projiortionate i)art of the ni(>rtij:i|,'«1 
 estate on pavment of a proportionate part of the mortgage de)>t : Rntilihis. 
 Pciulriyast, .')(■. L. T. X. S. 7'.»0. 
 
 Where the day ajipointed for redemption is uncertain a new day must Ix' 
 a|i)iointed : Srol't v. McKniwh, I Chy. Ch. I8(i. 
 
 Master's Master's Report The Master's report shoidd bear date the day it issicineil, 
 
 report, and not lipfure : Wmlilill v Mi-Cnll, 14 (Jr. 211. It nmst be eonfirnieii iH'forc 
 
 date of; the dav appointed for rerlemption, or a final order will b«' refuse<l : M'.iiiitiiin \: 
 
 should lie j;„tri', 1 Cliy. Ch. 207 ; .)////•: v. Dixnii, 2 Chy. Ch. 03. In tlie latter ca-e a 
 
 contlrmed. ,j,„„tirs further time to redei'm was allowed. 
 
 As to confiniiing report see Itii/i'i 82, 848, and notes. Tiie omission to 
 ajipoint a day for redemption may be remedied by a|>plication in Chainliers: 
 Kill'/ V. f'onniir, 10 (Jr. 304. 
 
 Correcting Where the Master had omitted to allow the ])laintifT two items of interest, 
 iiiistaku in. an order was made to correct the mistake, after a final order for sale, witiiout 
 
 api>ointing any new day for )iayment : Bikmii v. h'liihum, !1 V. C. L. ■!. Sl'; 
 
 and see Moiiiii \. .Unllluirx, 12 (Jr. 4.")3 ; l)ut the Master cannot, of iiis own 
 
 motion, in a sul)se(|Ment report, correct a mistake in a prior report : ('nKiku v. 
 
 Strict, I Chy. Ch. 78 ; and see further Jti'lc 82 note. 
 
 Rxtonsion Extandlnff time for Payirent.— Application to extend tlie time for payment 
 of time for "hould be made in Chambt is : Ainm, 4 (!r. 01 ; where tiie defendant sIiowhI 
 pavment, tiuit he had .sold for OK), and the mortgage delit was only 1"2.")0, and timt he 
 when expected to receive payment in full in two or tiiree montiis, tlie tune was 
 
 granted. extended : Fmil v. Stn/ilix, \ (). S. 282. So also where tlie mortga'.'e wits f<ir 
 jiurchase money, and tiie vendor had neglected topay off a prior inoitgaffe, pur- 
 suant to his covenant, and it ajipeared that the existence of the first niortgagp 
 prevented the defendant from raising money to payoff the sei'ond, the time 
 was extended : fr'. v. V., 2 (Jliy. Ch. ,'«. So alsii six months' further time 
 was given, where the defendant was prevented from raising tin- inoney hy 
 reason of an improper advertisement |niblished by the plaintiff's solicitors: 
 (iilmmir v. .U/irrx, 2 Chy. Ch. 170. So also where it was slniwii timt the value 
 of the property would Ih- enhanced in tlie meantime, by tiie construction of a 
 railway : Citmintii v. ('iniwriiii, 2 Chy. Ch. .'575; and where a reasoiialile pros- 
 jH-ct of jiavment at the extended time was shown, the time was ext<'nd«i : 
 t'lihiiiir v. 'Diirii; 2 f^hy. Ch. 304 ; Strnl v. O'KnII'/, 2 Chy. Ch. 270; Imt an 
 affidavit of the solicitor, that he belit'ved his clients liad e'xerteii tlienisel »*, 
 and were endeavouring to raise the money, and that the proi«Ttv Wivs wortli 
 much more than tiie debt, was held insufficient ; Annn, 4 (Jr. 01. 
 
 
 Wliere the ap 
 cant is usually i 
 aiiiotint found i 
 Ditrir : I'lmuroi 
 at all events the 
 cedent : ///. ; an 
 7 ,hir. N. S. 12(i 
 
 ilU'onse(|Ueiiee ( 
 itii's. at a liigh 
 ^tl■lKIillg the ti 
 MT tile exces! 
 IChy. Cii. 27. 
 order has been 
 granted, and on 
 order has issued 
 
 See further as 
 payment : /i"/<' 
 
 I»l. The 
 
 persons who 
 have been se 
 fore provided 
 and ni'ist set 
 and these It 
 brancers upc 
 
 Vw forms of r 
 07, 11(18, !lii!l, 072 
 
 I3i. All i 
 
 be taken, sub 
 had, for rede 
 parties entit 
 apecilif dire( 
 ill the J'ldgin 
 
 If tile iiiiirtgag 
 iwieems any prii 
 ixprcss or iiiipli) 
 aliv,-as against a 
 "Hmpliedly, i)ou 
 
 In taking the 
 "isuraiiee siuee il 
 V. I'lilai/I, ;i()r. 
 
 , In Kngland, it 
 interest on the gi 
 liistre|Hirt: /■:!/, „ 
 
 \. ^:"r/ „/ s„ir, 
 
 allow interest npi 
 
 unless the liii.rt^ 
 
 I '.I 
 
 inciimliriiiicer 
 'WfrcifiUe aiiioui 
 "" tlie priiicipa 
 
 on (he inteivst ; 
 
 *4. 
 
MASTER 8 OFFICK -FORECLOSURE, SALE, ETC. 
 
 Where the application is made after the clay fixed for redemjition, the appli- 
 cant !« usuallv recjt ired to pay i.^terest for the extended time, on the wliole 
 amuunt foinic^ due for principal, and interest: Street v. O'Eei/lii : ('iihuae v. 
 Ditrir ; (.'iniuron v. dumvron, xujira ; and the payment of the whole costs, or 
 at all events the costn of the application, is also usually made a condition pre- 
 cedent ://'.; and see Holfiiril v. Yate, 1 K. & J. ()77 ; Whit^tielil \. Holiertx, 
 1 .lur. N. S. 12(iH ; and where the mortjiragee swore that he iiiul been compelled, 
 inciinswuience of the mortgagor's defaidt, to contriust a loan to meet his liabil- 
 ities, at a higiier rate of interest tiian that reserved l)y the mortgage; on 
 'Nfemling tlie time, the mortgagor was reciuired to ])ay such a sum as wo\dd 
 iiivcr tile excess of interest jiayabh- by the mortgajjee : Hoiniril v. Miieinii, 
 IChy. Cii. 27. It is prol)able that where tlie a|)plicatlon is made l)efore a final 
 order lias iM'en obtained, however, tlie ap))lication would be more readily 
 granted, luul on less strini'iit terms, than where it is made after t!ie final 
 (irder hits isMied : I'atcli v. i\'<ii(l, L. H. lU'hy. 212. 
 
 287 
 
 Rules 
 131, 132. 
 
 Applica- 
 tion after 
 clay ap- 
 pointed has 
 elapsed. 
 Terms 
 imposed. 
 
 See further as to applications to open foreclosure, and extijnd the time 
 jiaynient ; A'"/'' 353, note. 
 
 for 
 
 i:<l> The Master's report must state the names of all 
 persons who have heen made parties in his otiice, and who 
 have been served with the notice or appointment hereirjbe- 
 fore provided, and the names of such an have made default, 
 andnrist settle the priorities, &c., of such as have attended, 
 and these latter are to be certified as the onjy incum- 
 brancers upon the estate. Chy. 0. 449. 
 
 Fur fiinus of reports in mortgage cases : see Leggo"-; Forms, 2n(i . <1., Nos. 
 07, !)tW, !«)!), (172, !»77. 
 
 Master's 
 report. con- 
 teiitd of. 
 
 Subsequ- 
 ent «!•- 
 counts to 
 be taken 
 by Master. 
 
 Mortgagor 
 paying off 
 iiicuui- 
 brance, 
 effect of. 
 
 All subsequent accounts arc, from time to time, to 
 be taken, subsequent costs taxed, and necessary proceedings 
 bad, for redemption by, or foreclosure of, the other party or 
 parties entitled to redeem the mortgaged premises, as if 
 apecilif directions for all these purposes had been contained 
 in the judgment. Chy, 0. 452. 
 
 If the iiioitgagor, orowuerof theeipiity of redemption, or any incumbrancer, 
 iideeius any prior char!,'e wiiicli was his own dei)t, or whicli, by contrac;t, 
 express iir implied, he was boiiid to discharge, lie cannot keej) such ciiarge 
 alivc iia against a iiit'.'ine incumbrancer, wiiose incumbrance he is also exi>ressly, 
 or impliedly, Ixmnd to discharge : /i/<ikr v. Iteiiti/, 5 (Jr. 3.')!). 
 
 ■ II taking' the subsecpient lUicount the masti r may allow a sum paid for Insurance, 
 iiwiraiicc siiuM' the last iu^count, under a provision in the mortgage; llel/nnu' 
 V. Ciilnilt, :uir. MH. 
 
 Ill Eiigliiiul, it is the pnuiticie on taking the subsecpient account, to allow Interest on 
 interest on the gross amount of jirinciiial, interest and costs, found due by the subsequent 
 lastn-iKirt : K//,„i v. Ciniel:<, lit CA\. I). 4!» ; 4.') L. T. X. S. 435 ; and see '.lucih account. 
 V. A'k,/ ,;/ Sii/,,l/.\ Mill*. 27; but in Ontario, it has not In'en customary to 
 allow mtcri'st upon interest in respect of an incumbrancer's own [iroper debt, 
 uiikss tile mortgage cxjiressly provides therefe , Hut where a subseciuent 
 iiiciimlmuiccr pays off a p.ior incumbrance, he is entitled to interest iin the 
 "SRiJ'KHte aiiiouut jiaid liy him for [irincipal, interest and c;osts ; the interest 
 oil tie jirincipiil In-ing computed at the rate reserved in his own securitv, but 
 ',1u, "' '"^'''■'"'t .ind costs, at six \wr cent, only : AfrAfitsfcr v. Hcetur. 8 C." Tw. J. 
 
238 
 
 OFFICEKS AND OFFICES. 
 
 sUt] 
 
 fssiss 1^»5» If the jiulgment directs a sale instead of fore- 
 
 Sfiu". -ino- closure on default in payment, then on default beinc; made, 
 ceciuiKs and an order for sale obtained, the premises are to be sold, 
 with the approbation of the Master, and he is to settle the 
 conveyance to the purchaser in case the parties differ about 
 the same ; and the purchaser is to pay his purchase money 
 into Court, to the credit of the action, subject to the further 
 ordor of the Court. Chv. 0. 458. 
 
 blaster By Hides 8!), 07, !<•!•. where ii wale in orcU'i-wl, the Mivnter may cause tlic 
 
 majr soil by property, or a ciniii>etent part tlieredf, t<» be Muhl. eitlier l)y inilil'c auction, 
 ' "' private contract, or tender ; or part by one ukkU", and juirt by aiioiiicr, iin he 
 
 may think best for tiie interest of all parties ; and he may fix an upset priee, nr 
 reserved bidding', l)ut such |)rice, or bidding, must \w so fixed at the meeting 
 held by him fo.' the purpose of settling the lulvertisement, and nuikiii),' the 
 other arrangements preiiaratory to the sale, and must be notified in the con- 
 ditions of sale. The .NJaster is to settle all necessary conveyances f(ir tiin 
 jnirjiose of carrying out the sale, in c;ise the parties differ; or in ciise tliw 
 shall Im! any jjersons inider any disability (other than coverture) interested in 
 sucii sale. 
 
 tendor, 
 
 private 
 
 contract, 
 
 *tc 
 
 Settle all 
 
 convoy- 
 
 ances. 
 
 Before a sale can take place, a final order must be obtained ; 
 note. 
 
 see Rule a"».T 
 
 Whole It is the Mast«'r's duty not to sell the whole, when it is clear that a salf of 
 
 sliouhlnot part would suffice for the payniinit of the inoimbrances. When the niortganor 
 be sola thinks more land is offered for sale than is necessary, he should object at tin- 
 
 snrtii-ieiit settlement of tile advertisement. It is tiM> late to take the objection after the 
 sale : limtii v. llH,h„ln,,sl, 3 Ciiy. Ch. 344. 
 
 Purciiaso 134. The ])urchase money, when so paid, is to be applied 
 application in payment of what has been found due to the plaintiff and 
 ° ■ the other incumbrancer or incumbrancers (if any), accord- 
 
 ins to their priorities, together with 8ub8e(iuent interest, 
 and subse(iuent coats. Chy. 0. 454. 
 
 RGsiduo o 
 purcbaso 
 money, 
 how (iis- 
 pOHBcl of. 
 
 Even after a sale, a dowress was allowed to come in anil prove her eliiini : 
 Hyde V. liurtini, H ]'. U. 200. 
 
 f This /{)(/( makes no prrivision for the dis|>osition of the residue, after p.iy- 
 mentof the clair.s of the plaintiff, and other incunil>rances. A niotininiiii.V Ix' 
 mrxle by the mortgagor, liefore a .Fudge in (-handMTs, for payment, of tiie 
 residue. Since lltli Nlareh, 187!t, a wife barring dower in a mortgage, (li#» 
 so only for the purpose of the UKU'tgage, and is con.s«>(iuently dowalile out of 
 any surplus after satisfying the mortgage debt. It will therefore be iiKjessary 
 whenever this right exists, that the wife should be notified, an.; pi-ovision 
 niiule for her pnjtection, in any oiiler flircjcting payment out of tlie surplus ; 
 K. S. O. c. 133, M. 1 ; Mai-tindnie v. Clitrkitiin, (> Ont. App. 1. 
 
 The (yediliirx IMief A'/, (R. H. (). c. (IT),) applies to executions against 
 lands which hav«^ Iwen sold in a ni'irtg.'ige aetion ; .and the suri)lus after pa.v- 
 meat of s|M'cific incumbrancers is distributable, ratably among the execution 
 creditors: lianvi/ v. MrXvil, 12 P. P. 3(i2 ; 24 C L. .T.'l22. 
 
 Master to 
 take ac- 
 count ill 
 redemp- 
 tion suits. 
 
 1JI5. Upon a reference under a judgment for retlemption, 
 the Master is, without any special direction, to take an 
 account of what is due to the defendant for principal money 
 
master's office — FORECLOSURE, SALE, ETC. 
 
 239 
 
 and interest, and his costs are to be taxed, and a time f^"d^J^«8 
 place, or times and places, appointed tor ))ayment according 
 to tlie present practice of the Court in that behalf. J. A. 
 Rule 332. 
 
 Six inontlis is iiwually allowed for ivflcniption by the ulaintiff in a rc(lciii|)- 
 timi actiiiii, as in tlif ease of a defendant in a foreclosure action : see Jlnh VM), 
 note. But it would seem tiiat if the mortgagee were to insist on exercising 
 iiiniMiwer of sale instanter, a mortgagor could noi, hy commencing a redemption 
 action, where the right to redeem is not in disimte, ])rocure an extension of 
 tilin' for redemption, nor even stay the sale |K-iiding tile action, except on the 
 terms of liringing the money sworn to he due hy the mortgagee for principal, 
 interest and costs, into Court, to aliide the taking of the account. Hut where the 
 rijtlit of re(ienii)tion is in dispute, a sale may i)e restraine<l until tiie trial or 
 lieiirinf,' of the cause without bringing tlie amount claimed into Court : Jilnxks 
 V. liiii'kliiiiil. 111 Heav. "212, 21!l ; and tiie general nde requiring the payment of 
 the nioncv into Court may Ik- miKlified, iiaving regard to the s])ecial cii-cum- 
 stiuuiescif tlie case : see J/ickxnii v. Ihtrhnr, 23 Ch. J). (J!M) ; Muclcnii v. .luncn, 
 24Ci). I). 2H!». 
 
 In tlie event of ii plaintiff iji a redemption action failing to redeem at the 
 time apiHjiiittKl he may be foreclosed, liiili' 302. 
 
 ISO. Where the order is for redemption or foreclosure, Piocedure 
 or redemption or sale, such proceedings are in such case to onier'is for 
 be tlierciipon had, and with the same effect as in an action JT,m_'„tc. 
 for foreclosure or sale, and in such case the last incum- 
 brancer is to be treated as the owner of the equity of 
 redemption. J. A. liule 335. 
 
 In lui lu'tion for redemption the i>laintiff is not entitled to a sale in default 
 of rwleniptiiin, and it is only when the mortgagee expressly consents, that a 
 judifiiH'iit ill a redemption action can be so framed. 
 
 rmmlly tiie only alternative of redem|>tion is foreclosure, or dismissal of the 
 .iction, which is e(|uivalent to a foreclosure. Tiie iilaintitl may be foreclosed : 
 see Riiii' ;i(l2 ; and under this Riih' the mortgitgee may iiriiig in any subseiiuent 
 iiieuiiiliranccrs and f<ireclose them. Hut when the mortgagee iirings in the 
 siiiiseiiucnt iiiciimlirancers it would seem that they would have tiu' ordinary 
 rightof (iefendiiiits in a foreclosure action and lie entitled to claim a sah on the 
 usual teniis, because the ai^tion tlwn ceases to be a redemption action, and 
 liecomes one f(>r foreclosure : .see Itxiv 3.")0. A mortgagor, or any jierson lialile to 
 pay, is entitled to redeem any mortgage nuule after the 1st .Inly, ISKO, may do 
 so after it has run five years, even though tlie time limited by the mortgage 
 itself for re(l(>niption has not expired : K. S. C. c. 127, s, 7. 
 
 137. In an action for foreclosure or sale upon payment Assign- 
 by the defendant, or in an action for redemption upon pay- Jlloporty 
 ment by the plaintiff, of the amount found due, the plaintiff J\=;'^/^«„-, 
 or defendant shall, unless the judgment otherwise directs, 'locuments. 
 assign and convey the mortgaged premises in ([uestion to 
 the defendant, (or plaintiff, as the case may be,) making 
 tbe payment, or to whom he may appoint, free and clear of 
 all incumbrances done by him, and deliver up all deeds and 
 witings in his custody or power relating thereto, upon 
 
:-i-;]ii 
 
 £^^ < cr ^ «r. ,.». f 
 
 '/ 
 
 /f< l<^ ^fta-i/ 
 
 'lent t^ Y<i 
 
 •; '^y 
 
 240 
 
 OFFICERS AND OFFiCES. 
 
 -4 
 
 I; 1 ifi 
 
 xuieiss. oath, and in case of p corporation the affidavit shall be 
 made by the officer thereof having the custody of such deeds 
 and writings. J. A. Rule 3B6. 
 
 •TudKinent 
 <'reditor. 
 
 Who 
 
 entitU'il to 
 convey- 
 ance. 
 
 Kedemp- 
 tion by "iio 
 of several 
 iutercHted 
 ill etjiilty (if 
 redeiii))- 
 tioii. 
 
 Becnnvey- 
 niice. 
 
 Ilodemi)- 
 tioii uioiu'v 
 how (laiil 
 out of bunk 
 
 Lost n\or)- 
 (^ace, in- 
 ileiunity 
 qiiirei\ 
 
 A judgment creditor is iMuind to iissign his judpnient to the jMirty rpdwniin,' 
 him : Hank of Ihitinh .Surtli Aiiit'riia v. Moon, H(ir. 401. 
 
 Wliert' lH)th the niortffivifor, an<l a s\ihs»'(|iient iiicuinltranei'r, pay the iimiiH 
 due to the phuntiif into the liank, the suhsefiucnt incumbrancer has the rij^lit 
 to a conveyance in i)reference to a m<irt>^agor, and as tietweeii two iiieiim- 
 brancers, the one wlio is jirior is entitled to the conveyance : see Tirran \ 
 Smith, 20 Ch. D. 724. 
 
 Where there are otlier jiersons interest«'d in the e(|uity of redeni|itioii. 
 besides the person redeeming, the mort^'iiK'''' shouhl convey tip the party 
 rech't-iniiig, sul)ject to tlie e(iuities of sucli otlier jH-rsiins : I'ldm v. .lyr.,/i», 
 L. \{. T) Chy. 227 ; and see llond v. I',(n,, L. K. 1(» Kip 4H2; L. W. 7 Cliy. 3!I2; 
 and see further as to fonn of comeyaiice : lldrth'n v. lim-toii, I,, \\. ;{ ("liy. 3(i,'). 
 
 Where a mortgagor wlio has assigned his eipiity of redemjitioii taking w 
 covenant of indemnity from his assignee, is com|M-lIe<l to pay the inortgjijrf 
 del)t, he is entitled to a reconvcyaiuie subject to the t'liuities of persons other 
 than himself ia the pro|K'rty : Kiiinoird \. Tivllofu, ',i'.> Vh. I). ti;<li ; .V.I L, T. 
 N. S. 4;W : and hi' is entitled to a charge on tile land for the amount so|iai(liis 
 against his assignee ; lliniiilhiii I'luridl. L. <(• /. Cn. v. Smith, 17 Ont. 1. As tn 
 the terms of a conveyance to a teiumt for life who redeems : st'c Aldimmi \. 
 AV(/r//, 2t> Ch. D. iHu. Where a mortgage is paid of!', the mortgagee is IhiuihI 
 to reconvey the mortgaged pro|«'rty so that it will revest in the mortgjigors; if 
 he recoil vey to one of several mortgagors, he will be liable at the suit of the 
 other mortgagors for any loss they mav s-.istam liy his sd dning : Mmmnn v. 
 Qim„.tliin<l Niitioiidl lUihk, Ufl Cii. D. 2.") ; 57 L. T. X. S. i:{(l, attirnnd bvC. k.: 
 37 Ch. 1). 4r,(i ; r.S L. 'I'. N. S. 248. 
 
 .\ mortgagor redeeming is entitled to a reconveyanee, or \esting order, and 
 is not oliliged to luicejit a certificate of discharge of the mortgage: A'//m v. 
 AV/i'.f, 1 Chy. Ch. 257 ; MeLriiiuiii v. Mi-Lntn 'I'i (Jr. .54. 
 
 li\ order to get the money out of the bank, it is ne<'essarv to priKliice to tll^ 
 officer reiiuired to sign the cheipie, the consent of the lai y paying it in, iluiy 
 verified, or that of his solicitor, if any. If this conse;,t cannot be iiroeiired, an 
 order must l)e obtained in Chambers, on notice to such party, and the costs nf 
 such motion will not be orderral to 1m' paid l>y the 'jitter : liiiimril \. Mlnj. 
 2 Chy. Ch. itl ; W'nkK \. Stourton, U .liir. X." .S. 27H. The |)arty i)aying in 
 the money, is entitled to receive uis convyance, and deeds, U^faie the iiioiiey 
 is ])ai(l out. 
 
 Where the mortgagee has lost the mortgage deed, lie. is iKiund at his own 
 exiH'iise to furnish the mortgagor, or any incumiirancer rvdeemiiig liini, witli 
 prtMif of tlie loss, and witli an indemnity ;igainst any demand of third [HTSiJib 
 Mcl)i)iuiltl v Hinic, 15 (ir. 72. 
 
 .See notes to /'i 
 
 11. Local Masters. 
 
 liiH, Every Jioctl Master who dots not praciiso as a 
 Barrister or Sohcitor and who has not taken oat certificates 
 to practice, shall, in addition to his other powers as Local 
 Master, liave in all actions brought in his County coiicui- 
 rent jurisdiction with and the same power and authority as 
 the Master in Chambers in all proceedings now taken in 
 Chambers at Toronto, except that the authority of such 
 
 -ijtfi «>*«. 
 
Ml 
 
 in 
 
 '* 
 
 ACCOUNTANT S OFFICK — OENKRAL RULES. 
 
 241 
 
 Local Masters shall not extend to proceedings in the nature Jl^??, 
 of a quo tctirrdnto under The Municijxil Act, or to payment 
 of money out of Court, uv dispensing with payment into 
 Court, or to appeals from the taxing otticers at Toronto 
 pending taxation ; or to making an order for sale of infanta' 
 estate.! See 48 V. c. 13, s. "21 : .1. A. lUiles ;2'2, 584. 
 
 S(f notes to /ti'/es 30, 41. 
 
 12. Accountant's Offici;. 
 (i) (Inii'ra! Iliih's, 
 13!K Tlu' Suitors' Accounts in the Court of Appeal, and suitors' 
 
 , Tf 1 /I i 1 11 1 • 1 !• << fill * i ; iH'L'ounts. 
 
 the High Court shall be ni charge ot Ihe Accountant 
 of the Supreme Court of -Tndieature for Ontario." J. A. 
 Rule 475. 
 
 The suitors' accountfi in the Courts of l^uci'ii's Hi-ncli, C'oiniuoii I'li'us, mnl 
 Clmiiceiy, wcri!, on tlic passiii^f of Tin' Jiiilicntiirv Act, eonsolidatodand iiUiccd 
 in cliarj,"' of an officer callfd the Aceoiintant of tlic Suprenu' Co\irt : original 
 RuU 47:"), 44 Vict. c. o, s. (IH ; and liy Jlufi'M), II. f '. .1., i)a.ssi'd I'ath Aiigiisr. 
 Wl, all nioiii-ys and scc\iriti('s, ftc, standing in the name of the Accountant 
 iif tlic Cdint of Clianccrv, or tlif Kcfcri-e in (Jlianilicrs, or any other otticiT 
 iiiiiiihI hy till' Co.irt of ('hiinocry, or in the nanic of the Clerk of the Crown 
 .111(1 i'liMs iif the Court of (Queen's Mench. or the Clerk of the Crown and 
 I'lcasiit the Court of Comnion I'leas, on the 21st August, ISHl, were trans- 
 firred to, and vested in, the .Accountant of the Siiprenie Court as such 
 Aceoiintant, and liy 4S Vi(^t. c. ]?>, s. lil, all moneys and securities in the hands 
 III the Kc^jjstrar of the Court of .VpimmI were also transferi-ed to, and \eslcil 
 ill. the Ae( (iiintant. 
 
 Tlic .Ai'comitaiit if tlie .Supreme (jourt of Judicature for Ontario is consti- 
 I'.ted a cor|H)ration sole : see mili. p. ll.S, s. \Xi. 
 
 IncaHoof th- office Ix-ing.'it any time vacant provision is made for vesting all 
 iiioneyH and securities in sonie other officer lo l)e named hv l{ule of Court: 
 
 Ik, s. m. 
 
 140. In the following Rules the word " Accountant " ■^^■^^<^,V"""'" 
 shall mean "The Accountant of the Supreme Court ofciotined. 
 ■fudicature for Ontario." J. A. Paile 550. 
 
 Ml. Ihe tollownig books are to be Kept by the Account- uooRh to 
 
 ant :— 
 
 1. A Book of Directions to the Hank to receive money. 
 
 2. A Book of Che(]ue3. 
 •1 A Journal. 
 
 •i. A General Ledger. 
 •'>. A Stock Journal. 
 •5- A Stock Ledger. 
 
 .i..\. 
 
 1« 
 
 4 i 
 

 
 242 OFFICERS AND OFFICES. 
 
 ?J5??'.. 7. A Balance Book. 
 
 143-146. 
 
 8. A Book of Investmentb. 
 
 9. A Bond Index. 
 
 10. A Deposit Index. 
 
 11. A Private Ledger. J. A. Kiile 551. 
 
 Directions 142* The Directions and Cheques are to be in the form 
 cheques, approved of by the Judges of the Chancery Division, and 
 are to be numbered consecutively. J. A. Rule ''52. 
 
 Journal 
 
 Geueral 
 Ledger. 
 
 Form of 
 accounts. 
 
 143* The Journal is to show the several sums daily paid 
 into and out of Court, and is to be so kept, that at the foot 
 of the account for each month will appear the total amount 
 paid into and out of Court during such mouth, and the 
 amounts to the debit and credit of the said account are to 
 be transferred each month to the Private Ledger. J. A. 
 Rule 553. 
 
 144. The General Ledijer is to contain a separate 
 account for every action or matter, in which there is 
 money in Court ; and also, " The Suitor's Fee Fund 
 Account," and " The Suspense Account " for each Division 
 of the High Court, and lor the Court of Appeal, each of 
 which accounts is to show correctly the state and condition 
 thereof for tlie time being. J. A. Rule 554. 
 
 To 'The Suitors' Fee Fund Accimnt" is to be trausferKfl tlie siirpliii' 
 income arising from tlio funds in tlui Higli Court aftfr payment of tlif cxjitiinfs 
 of the Accountant's ofKci% and interest payable to suitors : see J. A. h. 131), 
 ante p. 120. Out of the funds standing to the creflit of tills ace<iunt any Divi- 
 sional Court or .1 udge < )f tlie Supreme Court of .1 udicaturo may order .iiifii sums 
 to be applied as may be necessary for tiie protection of infants and otlier iKT«on.i 
 not tuijurLi, on whose behalf pnweedings may Iw had in the Court, or lie directed 
 to be taken in other Courts ; and may also order any sum to be ]iiii(l requirwi 
 to make good a default arising in resjH-ct of suitors' money or .setnirities, fnmi 
 any mistake, act or omission of any offioial of the Court without prejudice *o 
 the liability of the official or his sureties : and see J. A. s. 140, auk p. 120. 
 
 145. In each of the suitor's accounts there are from 
 time to time to be entered, the date, purport, or material 
 contents, of all orders, judgments, reports, pleadings, affi 
 davits, or other documents, affecting the payment into oi 
 out of Court, of money therein ; also, every sum paid into 
 Court, and by whom, and for what purpose paid in, and 
 under what authority ; and also every sum paid out, to 
 whom, and on what account paid out, and under what 
 authority. J. A. Rule 555. 
 

 
 accountant's office — GENERAL RULES. 
 
 243 
 
 14G. Each account opened in the Ledger is from time fjjjtl, 
 to time until the same shall be closed, to be credited with 
 the bank interest which shall from tinu- to time accrue in crediting 
 respect of such account and a corresponding transfer ofuuerest 
 interest is to be made at the bank by cheque signed and 
 countersigned as in other cases, and there is also to be 
 entered in each account any statement or memorandum of 
 any other matters material to be recorded for the infor- 
 mation of the Court or its officers, or any of the parties. 
 J. A. Rule 556. 
 
 147. Compound interest is not to be credited to any compound 
 action or matter, or allowed or paid to any suitor in respect '"**"'*• 
 of any fund which has not been in Court for at least five 
 
 years. J. A. Eule 657. 
 
 148. V/hcnever the balance remaining to the credit of ^^^^n^^l^^ 
 any action or matter to which an adult party is entitled BtaudiuK 
 does not exceed $10, and 2 years elapses without theyearr'cai- 
 balance being claimed, the account in such action or matter sufiwnso 
 shall be closed by the transfer of the balance to " The Account. 
 Suspense Account " of the proper Division of the High 
 
 Court, or of the Court of Appeal, but such transfer shall 
 not in anywise prejudice the claim of any suitor entitled to 
 the balance to its payment. J. A. Rule 558. 
 
 I4». In the Stock Journal and Stock Ledger are to be^->ck 
 entered all transactions relating to Dominion Stock held or anir"^ 
 purchased by the Court for suitors, other than such orders, ^^'^''s'" 
 reports and other particulars as to the said stock as are 
 entered in the General Ledger. J. A. Rule 559. 
 
 150. The Balance Book is to contain a statement to be Kaianc 
 entered therein quarterly of the balances at the credit of^^°°^" 
 the various accounts in the three Ledgers at the date of 
 
 such statement ; such balances are to be made up to the 
 3l8t of March, 30th of June, 30th of September, and 31st 
 of December of every year. J. A. Rule 560. 
 
 151. In the Book of Investment a are to be entered "ook of '"• 
 under the heading of the action or matter in which any 
 mortgage or other security other than Dominion stock has 
 
 been taken by the order of the Court, the date, and a con- 
 cise statement of the material contents of the mortgage or 
 
244 
 
 (^FFICKUS AND OKFICKS. 
 
 Rules 
 163-1D6. 
 
 other security, and of all subsequent orders and proceedings 
 in relation thereto until the mortgage or other security 
 is discharged by the order of the Court. J. A. Rule 'A\l. 
 
 DolKl 
 
 Index 
 
 153. In the HoikI Imle.r shall be entered under tlie 
 heading of the action or matter in which the same may be 
 entitled, a memorandum of all bonds, or recognizances, 
 filed or deposited with the Accountant, and also receipts 
 for all bonds, or recognizances delivered out pursuant to 
 any order. J. A. llule 502. 
 
 irlil 
 
 Deposit 
 Index. 
 
 153. In the DepoHit Intle.r shall be entered under the 
 heading of the action or matter in which the same may be 
 ordered to be deposited, a memorandum of all aeeurities 
 for money, or other documents, books, papers, or otlier 
 things which may at any time be ordered to bo deposited 
 with the Accountant for safe custody, and also recei[)ts for 
 all such documents, books, papers, or other things so 
 deposited as may be delivered out pursuant to any order. 
 J. A. Rule 503. 
 
 Private. 
 Ledger 
 
 154. In the Private Ledger is to be entered " The 
 General Interest Account," " The Toronto General Trust 
 Company Account," the "Bank Account," and " The Ac- 
 count of Official Guardian nr/ /j7r';».." J. A. liule r>64. 
 
 HookHto 155. The books kept under these llules, except the 
 inspection Private Ledger, are to be open to inspection by any person 
 interested in any account entered therein, or his solicitor 
 or agent. The Accountant is to give a certificate of the 
 state of any account, or an abstract therefrom, or of any 
 entry in sueh books, at the desire of any person interested, 
 or his solicitor or agent, and all such certificates shall be 
 signed by the Accountant, or the Chief Clerk in the Ac- 
 countant's office. J. A. Rule 505. 
 
 Securities 
 to bo 
 talcen in 
 r"rDO of 
 Account- 
 ttnt. 
 
 150. All mortgages and other securities taken under an 
 order or judgment of the Court, and all bonds, recog- 
 nizances and other instruments requil-ed by the practice 
 of the Court for the purpose of security are to be taken in 
 the name of the Accountant, his successors and assigns, 
 unless it is expressly directed that the same are to be 
 
ACCOUNTANT B OFFICE — QENEKAL RILEH. 
 
 taken in the name of Home other person or persons. 
 Rules 566, 519. 
 
 Ilondi for nt'ourity for custM, iiri' not within tliiK Itiilv : nee Rulv 1247. 
 
 245 
 
 A Rules 
 167-16a 
 
 157. One Auditor or more shall be appointed to the Audit ot 
 Supreme Court. It shall be the duty of the Auditor in*"""""'*' 
 each year to examine the several account books in the 
 Accountant's office and to compare the balances entered in 
 the Balance Book with the balances entered in the Ledgers, 
 and with the Bank Account, and to certify such balances 
 if found to be correct, and to make such further and other 
 examination of the said book as he may think necessary for 
 the proper audit thereof, and to report forthwith, after 
 making such examination, the result thereof to the Judges 
 of the Chancery Division, and from time to time to make 
 audi suggestions to the said Judges as may appear to be 
 desirable for the efficient keeping of the accounts in the 
 said Accountant's office. J. A. Rule 567. 
 
 \»iH, The remuneration of each Auditor is hereby fixed Auditors' 
 at the Hum of $100 per annum, tor winch sum a cheque is tiou. 
 to be issued payable out of the General Interest Account, 
 upon the hat of any Judge of the High Court. J. A. Rule 
 
 15!>. During the month of January in each year the «»•»»'«« 
 Accountant shall present to the Judges a statement of theHosofo'fflce 
 amounts paid for salaries and expenses of the Accountant's 
 office during the previous year, and the names of the 
 persons to whom such amounts were respectively paid, and 
 also an estimate of the salaries and expenses of the Ac- 
 countant's office for the current year, and such estimates 
 shall he examined by the Judges who shall be at liberty to 
 make such variations therein as they may think necessary, 
 and when approved of by them, a fiat shall be indorsed 
 thereon or appended thereto which shall be signed by one or 
 more of such Judges, authorizing the payment from time 
 to time as may be requisite of such sums as shall be 
 necessary, not exceeding in the aggregate the amounts 
 specified in the said estimates, for the services and purposes 
 mentioned in the said estimates. J. A. Rule 569. 
 
 100. Cheques for the salaries and expenses included in J^^'J^i"®' 
 such estimates as shall be so approved of as aforesaid may salaries. 
 
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 Sciences 
 
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 33 WIST MAIN STREET 
 
 WEBSTER, N.Y, 14580 
 
 (716) 87? -4503 
 
 

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246 
 
 OFFICERS AND OFFICES. 
 
 I i 11 
 
 
 
 ftt 162 ^^°™ *^^® *° ^^^^ ^^ occasion may require, be signed, 
 countersigned, and issued to the parties entitled, without 
 further order. J. A. Kule 570. 
 
 Account- lOl. The Accountant shall prepare ' in the month of 
 render Jaup' j' Ju cvcry year a statement of all moneys paid into 
 yew^i'y.^"*'' Couri !^ .id withdrawn respectively, and a statement of the 
 
 Judges. 
 
 condition of the various accounts upon the 31st day of 
 ihe ijief ■j'^g December, and shall transmit one copy to 
 ibi Pir- - '.i Secretary and one to the President of tlie 
 iligh Co:'.; of Justice, with a declaration thereto annexed, 
 made before a Justice of the Peace or Commissioner for 
 taking affidavits, in the form No. 217 in the Appendix. 
 J. A. Kule 476. 
 
 Not taken from any English Rule. 
 
 Listof 4ft2. A list signed by the Accountant of all the niort- 
 
 amr^eciiri- gfiges and sccuritics, other than Dommion Stock, outstand- 
 i"ttiiaif^ ing on the 1st January and 1st July in each year is to 
 .yearly with be delivered to, and left with, the President of the High 
 
 Court within 10 days thereafter, and such list is to set 
 
 forth in convenient form : 
 
 1. The short style of the cause or matter ; 
 
 2. Date of order under which mortgage or other security 
 executed ; 
 
 3. Date thereof; 
 
 4. Amount ; 
 
 5. When payable ; 
 
 6. For whose benefit ; 
 
 7. What sums, if any, overdue for principal or interest; 
 
 8. Name of mortgagor or party giving security ; 
 
 9. Locality (not description) of mortgaged property ; 
 
 10. Remarks. Chy 0.867. 
 
 Excepted 
 towns. 
 
 (ii) Mode of paying into Court. 
 
 169. The next seven Rules as to the mode of paying 
 money into Court shall not apply to moneys so payable at 
 L'Original, Cayuga, or 8atiltSte. Marie, until further order. 
 New. 
 
 Provision is made by Rule 171 for the payment of money into Court 
 with a defence at the places mentioned in this Riile. Other moneys rt'iiuired 
 
accountant's office — MODE OP PAYING INTO COURT. 247 
 
 to bp iiaitl into Court, as for instance purchase money on sales under judprments, Rules 
 moneys payahlf into Court in administration and partition actions, etc., will 164-167. 
 have to be p:i.id in at ono of the agencies of the Canadian Bank of Commerce, 
 or at one or otlu^' of the agencies of the other fianks authorized to receive 
 moneys payable into Court under Ititle 1G5. 
 
 104. A person desiring to pay money into Court sluiil J^i"i«o'. 
 pay the same into the Canadian Bank of Commerce at " ' 
 Toronto, or at some branch or agency thereof, or as men- 
 tioned in Rule 105 and in no other way. New. 
 
 The Accountant is the only proper person to receive i)ayment of money into 
 Court: Lcniiii- v. I.diilhici', 2 (1 L. T. \M ; except in tiie cases otherwise 
 priivided : see Ruh' 171. 
 
 Wiieii money was ordered tt) he ))aid into Court, payment to the solicitor of 
 the party entitled to it, was held not to l)e a ground for dispensing with its 
 puTOieut into Court : nhtcl.-inn-a v. S/irrijf', 1 Cliy. Cii. 208. 
 
 1C5. ^fonoy required to be paid into Court in any of the othe>' A^^j,^ ^ \ 
 following plaeos (so long as the Canadian Bank of Com- 
 merce shall have no branch oflice thereat) shall be paid ^^^^"j?, ^ 
 into the branch or agency office of the Bank set opposite -^^^^^^^ /:„ '■• 
 the said places rospoctively : ^,., X..'^ ,^^4 ^a^,. 
 
 St. Thomas The Merchants Bank l^/pt^f^^/^;^, .'''"'• 
 
 Kingston The Bank of Montreal,J\^^^^ '.'.V-,^ ^.,,^^., 
 
 Owen Sound The Merchants Bank <ri: £:^->.^^<?^ ,-. ^Ce^. . 
 
 Milton The Bank of Hamilton /f.<v ..^ dr^.^\ «^ 
 
 Perth The Bank of Montreal y^ .V -^-.^ ^4^- >: 
 
 Brockville ..The Bank of Montreal '^'t -m-^ < ^-^ ^ 
 
 Napanee The Merchants Bank 
 
 Cobourg The Bank of Montreal 
 
 Whitby The Dominion Bank 
 
 Brampton Tiie Merchants Bank 
 
 Picton The Bank of Montreal 
 
 Pembroke The Bank of Ottawa 
 
 Oornwall The Bank of Montreal 
 
 Lindsay The Bank of Montreal 
 
 Welland The Imperial Bank 
 
 Port Arthur The Ontario Bank 
 
 New. 
 106. The person paying money into Court shall first Direction. 
 obtain from the Accountant, Local Registrar, Deputy Regis- 
 trar, or Deputy Clerk of the Crown, a direction to the Bank 
 to receive the money. Chy. 0. 352 altered. , 
 
 167. The person applying for the direction is to file a PrseciiM 
 Pracipe therefor in the form No. 112 in the Appendix andto'be'ife 
 
^tm 
 
 248 
 
 Rules 
 168-171. 
 
 /jjy 
 
 Outside 
 towns. 
 
 Date of 
 
 creditiuR 
 
 money. 
 
 OFFICERS AND OFFICES. 
 
 is to leave with the officer issuing the direction, the judg- 
 ment, order, writ, or pleading or -copy thereof, under which 
 the money is payable, and in case the direction is obtained 
 elsewhere than in Toronto he shall also leave the necessary 
 postage for the transmission of the dc uments to the 
 Accountant and a further copy of the plead. '.;g for transmis- 
 sion. Chy. 0. 353 altered. 
 
 li»H, Where the direction is issued elsewhere than in 
 Toronto, the officer issuing the same shall forthwith trans 
 init to the Accountant by post the prtecipe for such direc- 
 tion together with the papers left on the application therefor. 
 New. 
 
 lOfK The person paying money into Court elsewhere 
 than in Toronto shall be entitled to credit therefor as of the 
 date on which the same was deposited in the bank, but Ihe 
 party entitled thereto shall not be entitled to receive bank 
 interest thereon until the money shall have been received 
 by the Canadian Bank of Commerce at Toronto. New. 
 
 Keceiptto 170* The Bank, on receiving money to the credit of 
 
 duplicate'" any cause or matter, is to give a receipt therefor in dupii- 
 
 by Bank. ^^^^ . ^^^ ^j^g copy is to be delivered to the party makinj,' 
 
 the deposit, and the other is to be posted or delivered the 
 
 same day to the Accountant. Chy. 0. 354. 
 
 Payment 
 with de- 
 fence ill 
 certain 
 towns. 
 
 171. Money paid into Court with a defence at L'Orignal, 
 Cayuga or Sault Ste. Marie, shall be paid to the proper 
 officer of the Court, who, for receiving the same, may exact 
 a sum not exceeding one per cent, on the sum so paid in, 
 and shall sign a receipt for the amount in the margin of 
 th"* pleading, for signing which receipt he shall be entitled 
 to twenty cents, and the sum so paid in may be paid out to 
 the plaintiff, or to bis solicitor upon a written authority 
 from the plaintiff. It. S. 0. 1877, c. 50, s. 109. 
 
 (iii) Payment out of Court, I)in'stiiicntH,efr. 
 
 Payment 172. Money is to be paid out of Court upon tbu cheque 
 Court! of the Accountiint, countersigned by any one of the 
 Registrars. J. A. liule 477. 
 
ACCOUNTANT S OFFICE — PAYMENT OUT OF COURT, ETC. 
 
 249 
 
 ITS. ]\Ioney paid in with a defence at L'Orignal, f^}VLa 
 Cayuga, or Sault Ste. Marie, is to be paid out with the 
 privity of the officer who received the same. 
 
 174. No cheque shall be issued^ior-te^ the long vaca- 
 tion in any year unless the prcecipe therefor is/ lotted in 
 the Accountant's office on or prior to the twentieth day of 
 June, unless otherwise ordered by a Judge. J. A. Rule 606. 
 
 /J' ff 
 
 Kule 478. /a ) a /--^i 
 
 175. Every cheque is to be initialed by the chief Clerk f;J,'W[*'^]^^ 
 in the Accountant's office before the same is presented for i)y chief 
 tlie signature of the Accountant or other officer. J. A. ^^''^'''' 
 
 170. The person entitled to a cheque is to produce and ""jj^/'/j^;. 
 leave with the Accountant the orders and reports entitling payment 
 such person to the money, and is to file a pr(ecipe in ami re-''"'"'' 
 the form No. 113 in the AJjpendix. Chy. 0. 356. S.ced."' 
 
 Where one inHuiher of a firm of solicitorH was cognizant of a fraudulent Liability of 
 application to tlie Court, whereby money wan iinprojjerly paid out to a i)arty solicitor, 
 not entitled, it was held that each member of the firm was liable to refund it, for hnpro- 
 incliiding' those who were ignorant of the fraud : lir/idr/rn v. Bmntill, 12 Sim. V^^y l"""" 
 389, and see Atkimoii v. Ma,kreth, L. R. 2 Eq. 570 ; *'<. AKhiin v. Smart, L. R. „"oney to 
 3Chy. (>4(t; Ihindimald v. Ma.stcnnaii, h. R. 7 Eq. ii'M ; J'lunier v. ('V^'/"/"'/, be paid out 
 L. R. 18 Eq. (J2] ; Cknlhfr v. Twi.idri,, 24 Ch. D. 731 ; 4i) L. T. N. S. G33 ; of' Court. 
 2«C'h. D. 310; ■ • L. T. N. S. 330; Thinnjmm v. RMimm, l.!) Ont. C62 ; 10 
 Ont. Aiip. 17.') : but see R( McCaiKjhcn .(• Walsh, 3 Ont. 42r). 
 
 Where a solicitor allowed his name to be used in an aiti>Ucation for payment 
 by a third person, who by ff)rged affidavits and powers of attorney succeeded 
 in getting tiie fund into liis hands, out of which he paid the .solicitor a ])ortion, 
 ana absconded with the balance, the solicitor was held liable for the whc)le 
 fund, both what lie actually received and what he did not, though ignorant of 
 the fraud : Slater v. Slain; .58 L. T. N. S. 140 ; and i?ee R< Spciiar, 21 
 L. T. N. S. H0«. 
 
 And when money is improiH-rly ordered to ))(> paid out of Court to i)arties 
 notentitled without fraud, but thnnigh th(^ negligence of a solicitor, he is liable 
 t» the parties injured thereby for the consequences : ]{< /}aiii/ar, 00 L. T. 
 X.S. 4!I1 ; 41Ch.' J). 178. 
 
 Piirchi 
 
 -...jliase money is not i)aid out excejjt either on proof being given the (j;„„seijt of 
 Acceuntant of the purchaser ha\'ing received a conveysince or vesting order, or purcliasor 
 upnn the production of the written co;isent of the purchaser, or his solicitor, to payment 
 and see Daniel Pr. (ith ed., IVW. ""^ 
 
 out. 
 
 177. Copies -trf orders dispensing with payment of copies of 
 money into Court' 'aire ' lii all cases la bo left with 'the'"'""' 
 Accountant forthwith after entry thereof. J. A. Rule 504. 
 
 17S. The orders and reports produced as aforesaid uie orders and 
 to be re-delivered to the party entitled thereto, with tlielTre^''*" 
 cheque. Chy. 0. 358. *""'«^- 
 
 '^'i 
 
 i fir 
 
. ,.JM^ lHlllllipV^^ 
 
 Rules 
 179, 180. 
 
 Stock, liow 
 transferred 
 to a mar- 
 ried 
 woman. 
 
 250 OFFICERS AND OFFICES. 
 
 ITII. Where money or stock, or securities in Court are 
 directed by an order to be paid or transferred to an 
 unmarried woman, and she marries before payment of the 
 money or transfer of such stock or securities, the Account- 
 ant, if the same do not in the whole exceed $600 of principal 
 money, or $50 in annual instahnents, may draw for the 
 money or make or execute a transfer of such stock or 
 securities, in favour of such woman, upon an affidavit of 
 herself and her husband that no settlement or agreement 
 for a settlement has been made or entered into before, 
 upon or since their marriage ; or in case any sottlement or 
 agreement for a settlement has been entered into, then 
 upon an affidavit by the woman and her husband, identi- 
 fying the settlement or agreement for a settlement, and 
 stating that no other settlement or agree ynt for a settle- 
 ment has been made or entered into as aroresaid, and an 
 affidavit of the solicitor of the woman and her husband, 
 that such solicitor has carefully perused such settlement or 
 agreement for a settlement, and that according to the best 
 of his judgment, such money, stock or securities are not, 
 nor is any part thereof, subject to the trusts of the 
 settlement or agreement for a settlement, or in any manner 
 comprised therein or affected thereby. J. A. Rule 571. 
 
 If the fund exceed !f(!00 the money cannot be paid out, or .stock transferred, 
 witho'.it a sjieoial order, in which tlie Court will jirovide for the .settlement of 
 the fund before i)ayiu(j it out; and where the applicant in an infant, it has 
 l)een held she has no jiower to waive her equity to a Kettlenient ; Shipmvi v. 
 IMI, 10 Ch. 1). 37f> : 44 L. T. N. S. 4!». But whcTe tlie hn.sl)and and wife are 
 of age, the Court will order the money tt» be paid out without a settlement if 
 the parties api)ear by separate solicitors, and consent : < 'line v. ( 'line, before 
 Blake, V.C, 8th March, 1875 ; but see Timipkiim v. Ilolmex, 14 (iv. 24.'), where 
 a wife was directed to be examined before a Master, apart from her husband, 
 as to her consent to abandon a fund in litigation. 
 
 When the fund was under £10, an affidavit was dispensed with : Vml v. 
 Veai, L. R. 4 Eq. 115 : (iuest v. Ncwiiies, 78 L. T. .Tour. 90 ; and wiiere the hus- 
 band was permanently resident out of the jurisdiction, the affida\it of the wife 
 alone was accepted and acted on : Wilkimton v. Schneider, L. R. it Eq. 423 ; and 
 in another case an affidavit by a solicitor disclosing facts, from which it appeared 
 that it was unlikely that there was any settlement, was accepted as sufficient: 
 Woodtoard v. Pratt, L. R. 16 Eq. 127. 
 
 Where an infant is found entitled to moneys in Court in an afbniniittration 
 suit the Court takes charge of the fund, and will not suffer it to go into the 
 hands of a trustee for the mfant : King»mill v. Miller, 15 Gr. 171 ; Mitchell y. 
 Rickey, 13 Gr. 445. But where a man'ied woman died entitled to a fund in 
 Court which she bequeathed to her executor to be invested and the income 
 applied for maintenance of her children, the fund was ordered to be paid out to 
 the executor : Re McDouyall, 11 P. R. 494. 
 
 Transfer of lHO» Where moneys or stock, or securities in Court are 
 represe°nta- directed to be paid out of Court or transferred to the " 
 
 Settlement 
 of fund, 
 may be 
 waived. 
 
 Affidavit 
 when dis- 
 l)ensed 
 with. 
 
 ACCOUNT. 
 
ACCOUNTANT 8 OFFICR — PAYMENT OUT OF COUHT, ETC. 
 
 251 
 
 personal representative of any person, or t6 persons to be ^-^^®|, 
 named ia an order or report, and such moneys, stocks, or ^j^J^, ^j 
 securities "re reported or found to be due to any persons i'ei«o>i 
 as legal p. rsonal representatives, the same or any portion ° 
 thereof for the time being remaining unpaid or untrans- 
 ferred, may, upon proof, to the satisfaction of the officers 
 signing and countersigning the cheque, of the death of any 
 of them whether before, on, or after the day of the date of 
 the order, be paid to the survivors or survivor of them. J, 
 A. Rule 572. 
 
 151. Where moneys, stock or securities in Court are Money.etc , 
 directed to paid out or transferred by the Accountant to lepi^jsenta- 
 any person named in the order or judgment, or named, or f,',yj^„ij'\o 
 to be named in any report, the same or any portion there- ^jj^)','^"'' ''*' 
 of for the cime being remaining unpaid or untransferred 
 
 may, on proof, to the satisfaction of the officers signing and 
 countersigning the cheque, of the death of such persons, 
 whether before, on, or after the date of the order or judg- 
 ment, and that his legal personal representatives are 
 entitled thereto, be paid or transferred to the legal personal 
 representatives of such deceased person or the survivors or 
 survivor of them. J. A. Rule ZiTS. 
 
 Where III) U'ttcrs of iiriniinistratioii have hi'i'ii taken out to tlu' cstateof ii 
 IHTsim who has died futitlcd to luoucy in Co\irt, .nul the amount is so small as 
 nott!) warrant the cxiiMisc of i^nvxjniiii'jr h'tti^rs of a-lministration, tlic Court 
 may direct the money to ))i' i)ai(l otit (n the undertaking of tlic solicitor for 
 thi" applicant to see to its due adtni) istration : R'lu.i v. /(usx, 4 Chv. Ch. 27 ; 
 I'nihi'lii-v. 7V/v,A<y-, 3 W. K. 2.SI» : h'iiii v. Imacsn.i, '.) \V. R. 3(J!»'; Ifiniiui-i 
 V. ///«/„;/., 2 H. it .M. 32 ; M ■ <'"W ■, 3 W. R. 84 ; but see Be ( 'abd, 3 W, R. 
 280, 
 
 152. No principal sum of money, nor anv stocks, funds, Principal 
 snares or securities shall, under Rules 1»0 and 181, benottoije " 
 paid, transferred or delivered out of Court to the legal ^resenta- 
 personal representative of any person under any probate, "x^yel'^.' 
 or letters of administration, purported to be granted at any " 
 
 time subsequent to the expiration of 6 years from the day 
 of the date of the order, or judgment, directing such pay- 
 ment, transfer or delivery. J. A. Rule 574. 
 
 188. No interest or dividends gball under Rule 161 bein'erestin 
 paid out of Court to the legal personal representatives of ner not to 
 any person under any probate, or letters of administration, after iu 
 purported to be granted at any time subsequent to the^^*'^' 
 expiration of 6 years after the day of the date of the order 
 
 
252 
 
 OFJ'ICERS AND OFFICES. 
 
 accounta: 
 
 II! 
 
 J^l or judgment directing such payment, or after the last 
 receipt of such interest or dividends under such order or 
 judgment, whichever shall last happen. J. A. Eule 575. 
 
 rayinents 
 to part- 
 nors. 
 
 IH'i, Where money is directed to be paid out of Court 
 to any persons named or to be named in an order or 
 report, and the money is, by the order or report, found to 
 he due to them as partners, the same may be paid to any 
 one or more of the partners by cheque payable to the firm, 
 J. A. Rule 576. 
 
 ment of 185. Porsous entitled to money in Court may have a 
 co"^tin sufficient amount of the unappropriated Dominion Stock 
 Dominion standing in the name of the Accountant appropriated as 
 ^'°*''^' an investment of such money, or of part thereof, at par 
 value. J. A. Rule 577. 
 
 tVonmade' ^S®* If ^11 parties interested consent in writing, the 
 without consent is to be filed with the Accountant, and he is to 
 make the appropriation without an order being drawn for 
 the purpose, and is to enter the consent in the Stock 
 Ledger under the heading of the cause or matter, with the 
 material contents of all orders, judgments and reports 
 necessary to show who are interested in such account ami 
 the shares in which they are respectively interested 
 therein, which may not be entered in the General Ledger. 
 J. A. Rule 578. 
 
 iTstocklf 18'7- If there is no unappropriated stock applicable to 
 none heki the purpose, a direction signed and countersigned in the 
 ment.^^^ same manner as a cheque, is to be delivered to the bank 
 for the purchase, to be made in the name of the Account- 
 ant, and when the purchase is made a cheque is to be 
 drawn for the amount and the brokerage charges, signed 
 and countersigned as aforesaid, and like entries are to be 
 made in the Stock Ledger. J. A. Rule 579. 
 
 Crediting 18S. The interest on stock so appropriated or pur- 
 
 interest on , , . i i i i. ; i t , i i 1 1 • , ■ 
 
 stock. chased, is, each half year, to be credited to the varioui) 
 accounts entitled thereto ; and wherever interest is ordered 
 to be paid from time to time to any person in respect of 
 the moneys which shall have been so invested he is to be 
 entitled to receive a cheque therefor jvithout further order. 
 J. A. Rule 580. 
 
ACCOUNTANT S OFFICE — PAYMENT OUT OF COURT, ETC. 
 
 253 
 
 IHO. Where an order or judgment directing the invest- faa%i 
 merit from time to time of any interest or dividends f.^,,,",.,,;,,^. 
 accruing upon any stock, funds, shares or securities stand- •;>|'u^ijy ' 
 ing in the name of the Accountant in trust in or to the fVoi,, tinu- 
 credit of any action, matter or account, or upon any stocks, umi"!- o,u- 
 funds, shares or securities which may he directed to be "''''''■ 
 transferred into the name of the Accountant, or to be 
 carried over from one account to another, or upon any 
 litocks, funds, shares or securities which may be directed to 
 be purchased with any cash in Court, or with any cash to 
 be paid into Court, with his privity, is brought to the 
 Accountant for the purpose of having such direction for 
 investment carried into effect, the Accountant may from 
 time to time until he receives notice of an order or judg- 
 ment to the contrary without any further request invest 
 the interest or dividends so directed to be invested, together 
 with ail accumulations of interest or dividends thereon, as 
 soon as conveniently may be after they accrue due and 
 have been received, in the purchase of the particular 
 description of stocks, funds, shares or securities named In 
 the order or judgment directing such investment, and 
 place such stocks, funds, shares or securities when pur- 
 chased to the credit of the action, matter or account respec- 
 tively, as may be directed by such order or judgment. 
 J. A. Rule 581. 
 
 H>0. It shall be the duty of the Official Guardian to see 
 that moneys payable on mortgages held by the Accountant, 
 in which persons for whom the said Guardian has acted 
 are interested, are promptly paid, and that the mortgaged 
 premises are kept properly insured, and that the taxes 
 thereon are duly paid. J. A. Kule 507. 
 
 [a) There shall be paid quarterly to the Official Guardian 
 out of the surplus interest fund for services rendered by 
 him under this Eule the sum of |200 per annum ; and in 
 the event of the fund to the credit of the account of the 
 Official Guardian exceeding the sum requisite to meet the 
 other charges thereon, the moneys so to be paid out of the 
 said surplus interest fund, shall be recouped out of the 
 funds to the credit of the said account of the said Official 
 (luardian. J. A. Rules 507. 536. 
 
 '•>1« The Judges may arrange with the Toronto General oelie'ra? 
 Trusts Company to make investments, and to take the Trusts 
 
 Offioiiil 
 Guardian 
 to see to 
 pay men t of 
 ni6rtt!aKes 
 in wliich 
 
 lllODHyS of 
 
 l)artic'S for 
 whoui he 
 lias acted 
 are iu- 
 vested. 
 ]<<!iniincr- 
 ation of 
 Ciuardiau. 
 
 '\* 
 
 
264 
 
 OFFICERS AND OFFICES. 
 
 ■'Bjf 
 
 Rule 192. securities in the name of the Accountant of the Supreme 
 {ioworod to Court of Judicature, of moneys in Court, upon first 
 veBtuiln'tH "loi'tRages of lauds, and may direct the issue of cheques 
 of fuiuiH in therefor upon condition that the said Company do, by 
 proper instrument, guarantee the sufSciency of such 
 - , • securities, and the due payment of interest at the rate of 4^ 
 
 '; J Crit/itHM:^.- per cent, per annum, half-yearly, on the moneys so invested 
 C^Alt-VeJ A from the date of the receipt by the Company of the money 
 for each investment, and also the due repayment of the 
 principal moneys so invested ; and upon further condition 
 that in case the said Company makes an investment as 
 aforesaid at a higher rate than 6 per cent., then the said 
 Company is to pay interest thereon to the Court at the rate 
 of 4^ per cent. ; and upon further condition that the said 
 Company is to satisfy the Official Guardian of the said Higb 
 Court of the sufficiency of the security as to value, and he 
 is to certify the same to the Court before the cheque issues 
 for each investment. J. A. Rule 521. 
 
 1, ^4^1*. 
 
 
 ^^ <- /^^^ *■ 
 
 (iv) Sto'p Orders. 
 
 Liability of 
 perHon 
 obtaining 
 Stop Order 
 topaycostB 
 and expen- 
 ses occa- 
 sioned 
 thereby. 
 
 Jurisdic- 
 tion to 
 grant stop 
 orders. 
 
 M>2. Where any stock, debentures, funds, securities, 
 or moneys, are standing in Court to the credit of any 
 action, or to the account of any class of persons, or are 
 invested in the name of the Accountant, or other officer of 
 the Court, and an order is made to prevent the transfer or 
 payment of such stock, debentures, funds, securities, or 
 moneys, or any part thereof, without notice to the assignee 
 of any person entitled in expectancy or otherwise to any 
 share or portion of such stock, debentures, funds, secur- 
 ities, or moneys, the person by whom any such order is 
 obtained, or the share of such stock, debentures, funds, 
 securities, or moneys affected by such order, shall be liable 
 at the discretion of the Court, or a Judge, as the case may 
 be, to pay any costs, charges and expenses which by 
 reason of any such order having been obtained, shall be 
 occasioned to any party to the action or matter, or any 
 person interested in any such stock, debentures, funds, 
 securities, or moneys. Chy. 0. 286. 
 
 The power to grant stop orders was formerly part of the jurisdiction of the 
 Court of Chancery, and whicli now, under The Judicature Act, is vested in all 
 the Divisions of the High Court. 
 
 This Enlc, therefore, applies to the moneys and investments in Court, in any 
 action pending in any of the Divisions oif the High Court, which are vested m 
 the Accountant of the Supi-eme Court. 
 
'^fr^:??.|^,.*^fl 
 
 accountant's OFFICK — STOP OltUKUS 
 
 255 
 
 tl 
 
 Tilt' ol)ji*t of the Itiih- \h to pruvi'iit injUHtice being' flonc Wy tlit- ^TiintiiiK of 
 !tt()|) orders '''/""'f. 'I'lif iipplicaiit for a stop onlur in alwayM rciiuirt'd to 
 siiliinit to 1)1' hound l)y till) terniH of tliiw Itide tin a condition of gutting theHtoi> 
 (inlfr, Sfd form of ovAv.v Seton, 'AW. 
 
 Tilt' I'tfcct of a Nto|t order is Hiniply to prevent the payment out of money, or 
 ..If traii'^fi'r of seeiiritien in Court, to the person appearing on the l)ookn of the 
 AecDiiutaiit to he entitled thert^to, witiiowt noti(!e iieing first given to the 
 i)frsi)n will) ohtains the stop order. Nothing i« decided therehy an to the 
 lights of tlie jiiirties : l.iicus v. /'raaic/,; '.) JJeav. 177. A stop ordiir has no 
 I'lfi'ct until delivered to the Accountant, hut the |)aynient out may he stayed 
 l(ir twenty-four hours, on lodging a caveat with that officer. 
 
 Stop orders may he granted against a fund in Court, on the application of 
 nn execution creditor of the i)arty entitled to the fund : Wilsan v. McVarthi/, 
 71'. K. 132 ; ('(III rill!/ V. Vliicnil, lo Ueav. 4H(). A motion hy a judgment 
 orwiitor who had not obtained execution was refused : JimiiAr v. lii-imkr, before 
 FiTiiUsoii, .)., 2Hth Mav, 1884. A stoj) order may Xw obtained on a fund 
 mdered to Ix' paid into Court, though it has not In-en actually paid in : Shaw 
 V. Umltuii, 48 L. .J. Chy. ()8!( ; hut not when it is neither in Court, nor 
 cjfdcred to he paid in: Willfslcji v. Miiniiiii/tmi, 11 VV. H. 17. An assignor 
 siioiildbe served with notice of the a]ipli(;ation for a stop order hy the assignee, 
 even thou(,'li a party to the cause, notwithstanding Jiidc 1!I3 ; Pargoim v. 
 (Imimic, 4 lieav. 021 ; but the want of notice to the assignor cannot be set up 
 by a Nuhsequent assignee : Cottini/hdm v. ('ottiiiijham, 11 Out. 2!)4 ; but 
 liayments made by the Accountant to the second assignee, before notice of the 
 prior as<igninent, will not lie disturlMjd : lb. An execution creditor obtaining 
 a st(ip order cannot thereby gain priority over a prior mortgagee : Be Hell, 
 (,'iirtir v. SIditilni, 54 L. T. N. S. 37<'. The a(i])lication must be supported by 
 evidence of the applicants' title: Wood v. Fi'iiccni, 4 Beav. 419 ; Quarmanv. 
 ll'WmHw, .') Ueav. i;«. 
 
 Sometimes the stoj) order is followed by an application for payment to the 
 jiarty obtaining it, such a motion is of course made on notice to all jjarties 
 interested in the fund : He UUchrist, Bolui v. Fife, 7 P. R. 430, including any 
 other (lersoiis who have obtained stop orders against the fund : see Uidkes v. 
 bull, 10 Sim. 41. 
 
 Where the party obtaining the stop order does not move for an order 
 for [layinent to him oi the fund, the opjKJsite party may move for payment 
 oiituotwitlistauding the stop order, or may move to discharge the stop order ; 
 such motions must, of course, he made on notice to the [lerson who has 
 obtained the stop order. 
 
 An order for payment out to a party entitled was made notwithstanding a 
 stop order had been lodged by a mortgagee of a jierson who had a contingent 
 interest in the fund, but whose interest never actually vested, and without 
 notice to the inortgaL'ee : Venina v. dnift, o8 L. T. N. S. 91!) ; 3() W. R. 778 ; 
 This, however, seems like adjudicating uinm a man's rights in his absence, and is 
 a precedent that will no doubt be very cautiously folhnved. 
 
 Priorities.— As between specific chargees on a fund, a subsequent chargee 
 iiayiiig at the time of his advance notice of the prior charge, cannot obtain 
 priority over it by first obtaining a stop order against the fund: Live.vy v. 
 Ilmling, 23 Beav. 141 ; BrearcUl/'v. Dorrinijtim, 4 D. «. & S. 122; Siouiiiie v. 
 '^"■ayiie, 11 Beav. 403 ; Me Holmes, 2f) Cli. D. 78G ; but if he had no notice of 
 tne prior charge when making his own advances, he may gain priority over 
 It by first obtaining a stop order, even though he do so after notice of the 
 prior charge: Ik, (Ireeniwi v. Beckfurd, 5 Sim. 195; but as between parties 
 paving no s|)ecific cliargo against the fund ; e.ij., execution creditors, he who 
 nrstobtained a stop order formerly gained jiriority : Tlumias v. t'ross, 2 Dr. & S. 
 H ; but now the fund will be distributed among all creditors rateahly ixccord- 
 ingto the principle of The r'redihr.f' lielief Act (R. S. O. o. ((5): hawson\. 
 ■•".Itatt, Ultra; but an execution creditor cannot by obtaining a stop order 
 Mquire priority over a prior charge, legal, or eriuitahle : Jie Itell, I'nrter v. 
 'hMtii, -A L. k. N. S. 370. b ' b ' i 
 
 Rul3 102. 
 
 Object of 
 stop order. 
 
 Wlien 
 griiiiteil. 
 
 t* 
 
 ^ 
 
 Applica- 
 tion to pay 
 out. 
 
 Effect of 
 stop order 
 on priori- 
 ties. 
 
m 
 
 25() 
 
 Rules 
 193-196. 
 
 GFFICEIIS AND OFFICES. 
 
 Stop ordiir 
 camiot (lii- 
 I'oiit lion of 
 scilicitor. 
 
 ( (ists of, 
 Notice of, 
 
 Sti))) Onlev 
 aood not 
 lie sorvod 
 on |)avti('s 
 not sought 
 to lie 
 iilTucted. 
 
 Service on 
 
 iisHifjnor 
 
 notdiK- 
 
 pcnsed 
 
 with. 
 
 When a ti'iiMt fun<l is Ix'inK lulniinistiTcd by tlif C'liurt, tlif trcHtccH c'ciiw t|i 
 liiiM' iiny iHiwcr over it, iiiKt ii iintiiM' to tlicni nf an inc'iiinlinmc' will not ^ivi. 
 1 1ll' |Piiity K'^ iOrJ' 'I"' notice prioi'ity ov( rii iirior incnnihrancfi'w Iki Iihm notKivcn 
 notice; u stop oidci' in sncli ii cu.hc is tlio most ctFcctnal notice: I'iniiurl, v. 
 //"//'■//, 2:{(Ml. I». I!I7 ; 4H Ii. T. N. S. SJI ; Miihnil Liff A.i>i,i,;iiiriC<.,iilHii(il\ 
 jMinilni, 2(i L'h. I). WH; at L. T. N. S. L'H I. 
 
 [n thiirn,,,! V. .\/i>ir<i/t, 11 Out. ■»H4 ; 22 C. L. .1. :tl. it uiis lield l,y aimlotfy t<, 
 the pfovisions of T/n' )',ri/i/iirs' Itrliil' Act, IcSHd, tliiit wl:' re se\erMi cic'ilitur-i 
 olitiiin sto|i oi'diTs ii^'ainst a fund in ( 'onrt to wliieh the conniioii delitor i« 
 entitled, and which is insutticieiit to jiay all in full, that it oii^rht tii In- 
 distributed amonj,' them and otlier creditofs not having specific liens /</■" nilti. 
 
 The prioiity aequifed I'V a stop order extends only to the ehaij^e in '.I'siMct 
 of which it was olitained ; M(ii-h;iil \. Hnrliinuiii, 'X\ Ueav. "JHI : I 1). .1, k S. 
 2().'). 
 
 The stop order cannot defeat the i'i(,dits of third iiarties to the f\in(l ; thus, 
 the lion of a. solicitor on the fund, cannot be deft'ate(l liy olitainint,' iiKtoixmlfr 
 af^ainst his client, (^ven under an assi^nnient : lloyuifs v. ('imiivi-, ;v,\ Hciiv. 431. 
 
 Costsof olitainliiLfasto,! order are not given as of course ; Urimlisii v. Wchslo. 
 8W. K. 7')u; //."'/-■ V. l(i>h,;ts,V>A\\Y. UW ; Wmhtili.n- \. Tdi//;,; ii Ha. 3117. 
 
 198. A person applying for such order, shall not be 
 required to serve notice thereof upon the parties to the 
 cause, or upon the persons interested in such parts of the 
 stock, debentures, funds, securities, or moneys, as are not 
 sought to be affected by the order. Chy. 0, 287. 
 
 This /'it/i- does not disiiense with ser\ ice on the assifjfiior, althouj,'ii a piirty 
 to the ciuise ; I'drmins v. (,'ri>iiiiii; 4 Heav. 521, nor on other parties wlm liiivr 
 obtained stop orders against the fund : llnlkrs v. I)(iii, 10 Sim. 41. Tlu^ ii|ipli- 
 (iant niiiy l)e (jrdered to |)ay the costs of parties uinicnessarily notified : ''V"'.- 
 Iu-iii,l: V. h'illdtt, (') P.eav. 1111. 
 
 13. Taxing Offickks. 
 
 (')mco"s ''*^'** There shall be two or more Taxing Officers of the 
 
 Supreme Court at Toronto. See J. A. Kule 488. 
 
 in'-oiuce^rs l**^* Every Local Kegistrar, Local Master, Deputy 
 Registrar and Deputy Clerk of the Crown, is a Local Taxing 
 Officer. 
 
 Ktax-^ ''*^' Every Local Taxing Officer, shall, subject to the 
 inKOfficcrs, provisions of Rules 1207 to 1211 inclusive, in actions 
 begun or pending in his office, be entitled to tax all bills 
 of costs, including counsel fees, subject only to appeal to a 
 Judge of the High Court. This Rule shall not apply to 
 cases in which infants are concerned, unless the Official 
 Guardian is the guardian nd litem for the infants, 48 ^. 
 c. 13, s. 22. 
 
;.::^;..^.v*"rVV.a 
 
 harristkus and solicitors. 
 
 267 
 
 107. All Taxing Ollicers, shall, for tho purpose of any 
 taxation, have power to a'l minister oaths and take 
 evidence, direct production of books and doeumontb, make 
 ciTtiticateH, and give general directions for the conduct of 
 tax:itions before tliem. Sac J. A. Rule 438. 
 
 SiilHtiuitiiilly to the Miiirif rtfcct as Kng. K. ^ ugii.st 1 H75, K. '-'3 (!««•'' H. -'7 
 
 Rules 
 
 197-201. 
 
 I'owers of 
 
 Taxing 
 
 Oillcurs. 
 
 'rii\iiiK iitHci'i's liiivt' 
 Wlliiniii'iii V, Tchui iif 
 
 power ti> (iiill cvitlciicc on taxiitioiix licfurc tliciii 
 \llhi,n; 12 1". R. 12!». 
 
 Wlicrc tlu' taxinj? officer rcfuHed to proccwl until tho j)laintitT vvhh iinnKtcwl ■ 
 fdirxainiiiatidii as to a retii'iUT, and he was out of tlic jurisdiction, tlie taxing 
 iilticir was (iiifetcd to .";,!, i :iiii otlicr witncHMcs, aTul if iiiial)l«' to decidt' as to 
 till' rctaiiHT tiicn, to ri-port to a .Iiid^'f in CliauiliiTs ; //'. 
 
 Wlit'ii' solii, II' and olicnt contradict one anotiicr in attidavitH, the taxing 
 iittici'r siioulil allow oral evidenct! to he taken under tliis Itnlr : Iti' I'U'ini.i, 35 
 W. R. :)4(i. 
 
 Tiiere iH no jiower to direct .shorthand not<^s of evidence before him witli. it 
 till' consent of the parties : lie II Hint,!/ v. 7(///A/;', Hd Ch. I). 2()2 ; unle.sH Rulr 
 '*fl is ii|i[ilicatili' in such a case, which do«'n not seem to have heeii contemplated. 
 
 14. Barristers and Solioitoiis. 
 
 lOS. There shall be one lloll of Solicitors of the solicitors' 
 Supreme Court of Judicature for Ontario, and all persons " " 
 who shall be admitted as Solicitors shall sign the same 
 upon taking the prescribed oaths. J. A. liule 602. 
 
 I1M). The Registrar of the Common Pleaa Division shall Registrar 
 have the custody of such Roll and of all former Rolls oftoViavV^ 
 Attorneys and Solicitors, and he shall on the request of °^'f,'"''>°^ 
 the Registrar of any other Division of the High Court, or of 
 the Court of Appeal, transmit such Roll to such officer, who 
 shall forthwith return the same to the Registrar of the 
 Common Pleas Division when the purpose for which the 
 same may be required shall have been accomplished. 
 J. A. Rule G03. 
 
 '?3: 
 
 300. Mutatis mutandis, the Roll and Rolls for Barris- n unstors' 
 ters shall be in the same form and custody as the Soli- 
 citor's Roll and Rolls. J. A. Rule 604. 
 
 201. Where a case appears justifying or requiring bystrikiuK 
 the practice hitherto an order against a Solicitor that heroih'"'" 
 be struck off the Roll of Solicitors, unless he shall, before a 
 time therein limited, show unto the Court good cause to 
 the contrary, it shall be competent for the Court, in lieu 
 J.A. 17 
 
 i\^ 
 
258 
 
 OFEICERB AND OFFICES. 
 
 Rule 201. thereof, to issue an order calling upon the Solicitor to 
 answer the matters appearing on affidavit or otherwise. 
 Chy. 0. 52. 
 
 The Court of Appeal, as well as the High Court, has power to strike a soli- 
 citor off the rolls : R. S. O. c. 147, s. 2, (2) : Re Whitehead, 28 Ch. D. (;15. 
 
 In Burton v. Ead of Chesterfield, 9 Jur. 373, it was said that the motion 
 could not be made, calling on an attorney to answer the affidavits and at the 
 same time to show caiise why he should not bo struck off the rolls ; and in that 
 case the rule was confined to calling on him to answer the affidavits. In a 
 later case, however, the rule niai was granted in the double foiTO ; Re Blake. 
 3 E. & E. 34 ; and see Re O'rueber, 63 L. T. Jour. (537. 
 
 Where the motion is confined to calling on the solicitor to answer affidavits 
 simply, and the Court is of opinion that nis answer is insufficient, the practice 
 at law has been to enlarge the motion to a future diy, intimating to the solicitor 
 that he may be further heard on that day, why he should not be struck off ; 
 Re Wright, 12 C. B. N. S. 705 : Re H., 3i L. t. N. S. 730. 
 
 In order to give the Court jurisdiction to entertain an application for a 
 solicitor to answer matters contained in an affidavit, or to strike him off the 
 rolls, it is not necessary that the misconduct of which he is accused should 
 arise strictly between solicitor and client : Re Aitken, 4 B. & Aid. 47 ; Be 
 Attorney, 39 U. C. Q. B. 171 ; Re Kniaht, 1 Bing. 91 ; Re Blake, 3 E. & E. 34; 
 Re Hill, L. R. 3 Q. B. ."MS ; Re Chandler, 22 Beav. a'53 ; and see Rr (Ml», 16 
 L. T. N. S. 715 ; Re Keays, 13 C. P. 282 ; Re Solicitor, 80 L. T. Jour. 103; Re 
 Strmig, .53 L. T. N. S. 694 ; 55 L. T. N. S. 3 ; 31 Ch. D. 273. 
 
 Where in the course of a cause, evidence of fraudulent conduct on the part 
 of a solicitor is brought to light, the Court may sua sponte direct ijroceedings 
 to be taken against the offending solicitor : Goodwin v. Gosndl, 2 Coll. 457, 462; 
 Wheatley v. Bastow, Re Collins, 7 D. M. & G. 261, 588 : Re Tmm, 3 Chy. Ch. 
 204, 215 ; Re Currie, 25 Gr. 3o8 ; Re Solicitor, 2f7 Gr. 77 ; Thorndyke v. Hm\t, 
 o Jur. N. S. 879 ; and uix)n the application of any party interested : Cnvc v. Can, 
 43 L. T. N. S. 1.58. 
 
 A solicitor may be struck off the rolls for fraudulent conduct as a trustee ; 
 Re Chandler, supra, where the application was made by the cestui que trust; 
 and see Thwndyke v. Hunt, supra; Dolland v. Johnson, 2 Jur. N. S. 638; cfr 
 for fraudulently abusing the confidence of a client : Re Martin, Beav. 337 ; 
 Re J. C. M. <t' J. M., 24 W. R. Ill ; or for 'obtaining a client's fnioney to dis- 
 charge alleged liabilities of the client which did not exist : Re 11., 31 L. T. N. S. 
 730 ; Re Strong, .31 Ch. D. 273 ; 55 L. T. N. S. 3 ; or for gettinif a false 
 affidavit sworn, and without authority instructing counsel to consent to pay- 
 ment of money out of Court : Wheatley v. Bastow, 7 D. M. & G. 2(51, 558 ; or for 
 falsely representing an injunction to have been granted : Kimptnv v. Eve, 
 2 V. & B. 352 ; or for making an interlineation in an affidavit after it had been 
 sworn : Erskine v. Adeane, 18 Sol. Jour. 573 ; 10 C. L. J. 209 ; or for committiM 
 perjury, Seton 652 ; or for revealing the secrets of a client : Re Cutts, 16 L. T. 
 N. S. 715 ; Cholmondeley v. Clinton, 19 Ves. 261 ; or for persuading his client 
 to give him money to be used for bribing a jury before whom the client was to 
 be tried for a criminal offence : Re Titus, 5 Ont. 87. 
 
 Where the application is made on the ground of fraud, the fraud must be 
 clearly proved ; the Court will not infer an equivocal action to have been 
 fraudulent : Re Stewart, L. R. 2 P. C. 88 ; ite S , 14 C. P. 323. 
 
 Under R. S. O., c. 147, s. 25, a solicitor may be struck off the rolls for 
 default of payment of money received by him as a solicitor : Anon, 12 C. L. >)■ 
 204. But whePB considerable sums had got into the hands of a solicitor who 
 made default in payment, but the client issued execution upon the older 
 directing payment, it was held that he had treated the clair. as a debt, and » 
 subsequent motion to strike the solicitor off the rolls for non-payment wm 
 therefore refused : Re Fletcher, 28 Gr. 413. And where the client had meAm 
 
BABRIBTEBB AND SOLICITOUS. 
 
 269 
 
 Holicitor for the money and failed on the ground that hia claim was barred by Rules 
 the Statute of Limitations ; it was held that n-i could not afterwards resort to 202, 203. 
 summary proceedings against the solicitor without any allegation of miscon- 
 duct : Sittimjhoume <fc S. Ry. Co. v. Laivnon, 80 L. T. Jour. 448. The Court will 
 not exercise its summary jurisdiction over a solicitor tt) compel repayment of 
 a loan : Re Bryant, 50 L. T. N. S. 4r>0 ; unless the loan lias been fraudulently 
 obtained by the solicitor from his client : see Re Strong supra. 
 
 Repayment, pending a motion to strike off the rolls, of money fraudulently 
 obtained, is no purgation of the offence : lie H., 31 L. T. N. S. 730 ; nor is it, 
 where the money was proiwrly obtained, but misappropriated : Re Solicitor, 62 
 L. T. Jour. 440. But when a solicitor has been struck off, it is a condition pre- 
 cedent to restoration that he shall have made full restitution, or made the best 
 efforts in his jxjwer tiiereto, and satisfy the Court as to the propriety of his 
 conduct in the meantime : Re Poole, L. R. 4 C. P. 350 ; Ex parte Pyke, 
 (i B. & S. 703. And the Law Society must Ix; notified of any application to 
 restore to the rolls, a solicitor who has been struck off for misconduct : Re 
 Solicitor, 1!) C. L. .J. 234. 
 
 Where a solicitor is struck off the rolls for misappropriating the moneys of 
 his client, the order directing him to be struck off may proi)erly contain a refer- 
 ence to ascertain the amount for which he is liable and direct him to pay the 
 amount so to be ascertained, and payment may be enforced against him even 
 after he has been struck off : Re Stiowj, 31 Chi D. 273 ; 55 L. T. N. S. 3. 
 
 In some cases the solicitor has been susjiended from piuctice for a specified 
 time, and not actually struck off : see Erskinc v. Adcane, 18 Sol. Jour. 573 ; 
 Re Hill, L. R. 3 Q. B. .543 ; Re Blake, 3 E. & K. 34 ; and see further as to pro- 
 ceedings against solicitors, Cordery's Law of Solicitors. 
 
 .\n order striking a solicitor off the rolls is not a criminal proceeding and 
 iH apiiealable : Re llardwick, 49 L. T. N. S. 584. 
 
 302. A book to be called " The Solicitors' and Agents' Book to be 
 Book" shall be kept by the Registrars of the Queen's BegLtLr, 
 Bench and Common Pleas Divisions of the High Court in i^J^^^g^^J 
 Toronto and the Clerk of Records and Writs, at their of aoiici- 
 respective offices, to be there inspected by any solicitor or his tfshig'in*' 
 clerk without fee or reward; and every solicitor practising S'e%°ntered° 
 in said Court and residing withhi the city of Toronto or 
 having an office and carrying on his business within the 
 said city, shall ^enter/^h^ such book (in alphabetical order) 
 his name and place of business or some other proper place 
 within the city where he may be served with pleadings, 
 notices, orders, and other proceedings; and as often as any^^^j^ 
 such solicitor changes his place of business or the pl9,ce»-e8?de^nce 
 where he may be so served as aforesaid, he shall make tlie t2i 
 like entry thereof in the said book. Rules T. T. 1856, 136. 
 Chy. 0. 24. 
 
 The entries required to be made under this R '-. a a compulsory : Rsserii v 
 ''• r. Ry. Co., 9 C. L. T. 423 ; 25 C. L. J. .50/. "^ 
 
 For the consequences of not complying \ itli this Rule, see Rule, 461. 
 
 «ho^r*"i^'^^'^?u®'*-®^^,°*'''/*°'. Pyactising in the said Court Hook to f rue, 
 suall enter fn the said books (m like alphabetical order) his Regst^ar. 
 
 % 
 
 ^ 
 ^ 
 
 
 I be en- 
 I tared. 
 
 
■rm 
 
 A ■ 5 
 
 260 
 
 OFFICERS AND OFFICES. 
 
 \m 
 
 20^206 ^^^^ ^^^ place of business, and also in an opposite column 
 in wiiich ^^^® name of some solicitor having an office and carrying 
 names and on busincss in the city of Toronto as bis agent. Euies 
 Sf Toronto T. T. 1856, 137. Chy. 0. 24. 
 
 agents to 
 
 be entered, rpjjg entry of a Toronto agent by solicitors jiractising out of Toronto is 
 compulsory : Essenj v. <>. T. Ry. Co., supra. See also Ride 461, 
 
 Deputy 204. Every Deputy or Local Registrar is to keep in his 
 
 soiTcUw-r office a book to be called " The Solicitors' and Agents' 
 g^^^gents'Book," in which each solicitor residing elsewhere than in 
 the County in which such Deputy or Local Registrar's 
 office is, may specify the name of an agent, being a 
 solicitor of this Court, and having an office in the city or 
 town where the office of such Deputy or Local Registrar is 
 situated, upon whom all writs, pleadings, notices, orders, 
 warrants, and other documents, and written communi- 
 cations in relation to proceedings conducted in the office of 
 the Local Master, Deputy Clerk, Deputy or Local Registrar 
 of such County, may be served. Chy. 0. 33. 
 
 The eatry of the name of an agent in the books required to l)e kejjt under 
 this ^u/c is optional: E.iseri/ v. W. T. Ry. Vo.,. supra. If the entry is made 
 services may be effected accordingly : see Rule 4ftl ; but service on .in agent is 
 not good service on the principal, imless the agent is Ixwked as agent under 
 this Rule : Robinnun v. Uvhinson, 13 P, R. 51. 
 
 15. Shorthand Writers. 
 
 s 
 
 Money re- 205. All moncys reccivcd by a shorthand writer for 
 shorthand copics of evidcncc shall, when the shorthand writer is paid 
 S'licabrby salary, be accounted for by him to tho Clerk of the 
 proper Court, and shall be by the Clerk of such Court 
 deposited in the Bank for the time being, where moneys of 
 the Province axe deposited, to the credit of an account to 
 be called " The Shorthand Writers' Fund." C. L. Rules, 
 10th March, 1876, 5. 
 
 Shorthand 306. When the shorthand writer is not paid by salary, 
 paw*b^"°*t^e said moneys shall belong to and be the property of the 
 said shorthand writer. G. L. Rules, 10th March, 1876, fi. 
 
 salary, en 
 titled to 
 fees. 
 
 By order in council of 10th March, 1887, Mr. Clark, ime of the taxing officers, 
 was appointed to receive the moneys payable for copies of evidence hiniislied 
 by the regular shorthand writers, and he is required to pay them into Court tn 
 the credit of "The Shorthand Rejxjrters' Account, " and he is the iiersoii to 
 whom applications for copies of the shorthand rejjorters' notes should hv mMt. 
 
EXPERTS. 
 
 16. EXPERTS. 
 
 261 
 
 Rule 207. 
 
 207. The Court may obtain the assistance of account- 
 ants, merchants, engineers, actuaries, or other scientific 
 persons, in such way as it thinks fit, the better to enable 
 it to determine any matter in evidence in any cause or 
 proceedings, and may act on the certificate of such person. 
 Chy. 0. 541. 
 
 It is only the Court that is authorized to obtain the assistance of experts, 
 A Master to whom a cause is referred, has no authority to employ experts for 
 the pur|)()se of assisting him to come to a conclusion on matters referred to 
 him : He Hobedsini, Iluhcrtson v. Ruherlson, 24 Gr. 555 ; Mildumy v. Lord 
 Mctliiieii, 1 Drew. 21G ; 16 Jur. %5 ; but see contra, Jte London <fc Binninglmm 
 Rij. Co., W. R. 141 ; and see Jtide 73 note. 
 
 Where, however, the Master had, at the instance of the plaintiff, and with 
 the consent of the creditors, in an administration suit, employed an exjiert, 
 and the jiiirties received the benefit of iiis services without objection, the Court 
 on api)eal by the creditt)rs refused to disallow the costs incurred : lie Hubert- 
 son, Boherlsim v. ItoherlHon, .supra. 
 
 This Rule given a, wide discretion to the Court as to the manner in which 
 experts shall be employed ; l)ut it does not apparently give the Court power 
 to direct experts to be employed for the purpose of giving evidence as wit- 
 nesses, l)ut apiwars merely to enable the Court to procure the assistance of 
 experts for the purpose of getting their opinions, on the evidence adduced by 
 the parties, or upon a view of the locus in quo : see Enderwick v. Alldcn, 88 
 L. T. Jour. 12. 
 
 In lirmler v. Siiillard, 24 W. R. 4.50, the M. R. at the trial appointed an 
 independent stirveyor to make a reiwrt, and at the adjourned hearing his 
 report was handed to the Judge ; the Judge thougiit that two points should 
 be stated more fully, and he directed the surveyor to make an addition to his 
 report, observing tliat he preferred not to allow the surveyor to be sworn as a 
 witness, as he was acting in a i^uasj-judicial capacity. 
 
 Where there is contradictory evidence on a scientific question the Court is 
 at liberty to employ an indejiendent expert to give advice upon which the 
 Court may form its judgment : liadische Aiiilia, etc. v. Levinstein, 24 Ch. D. 
 loC). 
 
 An expert has lieen employed to ascertain the effect of a dam on the water 
 penned biuik : Hawkins v. Muhaffn, 2!( (Jr. 32() : and the amount of encroach- 
 ment of alluvium (HI a sea shore : Attitrnt'if-thnerid, v. Chamher.s, 4 DeCi. & J. 
 ')'), .58; and as to the effect of using steamboats on a canal : ('a,ie v. Midland 
 /?,'/■ Cii.. 27 IJeav. 247 ; and as to the circumstances under which the Court will 
 send an expert, to report in the case of a suit to abate a nuisance : see l^lavin 
 V. Smih limncepeth Coal Co., L. R. !> Cliy. 705; Enderwick v. Allden, supra. 
 
 Wiiere a ])laintiff proves himself entitled to an injunction against a nuisance, 
 or other injury, the Court cannf)t, before in-onouncing judgment, order an 
 exiwrt to he employed, for the purpose of ascertaining tlie best mo<le of remov- 
 \n% the nuisance, etc., even though the injunction to which the plaintiff is 
 entitled, ho a difficult one for the plaintiff to oln^y : Attorney-irenend v. 
 OV(M/ //((/,•/) A.s'/him, L. R. 4 Chy. 140 ; and a general iiKjuiry as to what 
 ought to l)e (lone to prestirve the plaintiff's light and air, was refused : Stokes 
 V. I 'III/ Vfliir I'll., l.S \V. R. 537. But after judgment, the opinioi. of an expert 
 may be taken, as to the time which ought to be allowed, for carrying it mto 
 effect: Mlnnuiy-dewnd v. Aferflii/r Tyd/U, 5 W. R. 148. 
 
 In the li(dlifi Co. v. Simjimi, 24 W. R. 3!I0, it was held tliat the Court ought 
 not unrler 15 & Ki Vict. c. 80, s. 42, or sec. 57 of the .Tud. Act. (Ont. Act. sec. 
 102, |). !I7, .s»y(nO to make an order l>efore trial, appointing a scientific iwraon to 
 report on a (pu'stion of fact. 
 
 Court may 
 obtain ser- 
 vices of ex- 
 perts. 
 
 Master 
 cannot em- 
 ploy ex- 
 perts. 
 
 Costs of ex- 
 pert may 
 be allowed 
 tbouf»h im- 
 properly 
 employed. 
 
 Cases in 
 which ex- 
 port ap- 
 l)ointed. 
 
 Court can- 
 not refuse 
 to (,'raut re- 
 lief against 
 nuisance 
 until in- 
 quiry made 
 by export 
 how it may 
 be bust 
 abated. 
 

 tl. ■} 
 
 262 master's office. 
 
 Rule 207. Where a matter is referred by the Court to an exjiert or report, a forma 
 order of reference to liim sliould be drawn up ; but where an expert acted, and 
 made his report, without tliis having been done, the Court acted on tlie rel>^rt 
 notwitiistandinjj the objection : Endcrwirk v. Alldvn, 88 L. T. Jour. 12. 
 
 Appoint- Where an expert in employed, it is not absohitely necessary tliat the ,ip))oint- 
 
 ment ex nient sho\ild be made in the presence of the parties : He Limdmi lO Biniiingham 
 parte. Uy, (jo., (> W. R. 141. 
 
 Expert An expert cannot call witnesses : Morris v. Llnnellj/ Ri/. Co. , W. N. 1808, 
 
 cannot call 4(5 ; and his re[)ort is not conclusive : Ford v. Ti/nlc, 2 D. .1. & S. 127; Aihmmti 
 witnesses, y. UiU, 1(5 W. R. 30(i. 
 
 Assessors'. Under the Jud. Act, s. 101, ((uite p. 96), the Court may call in the aid of one 
 or more assessors specially qualified, and may try or hear a cause or matter 
 wholly, or partially, with the assistance of such assessors. Where experts are 
 called in to act as assessors their powers are merely advisory, and the ( 'ourt is 
 not bound to adopt, or follow, tiie advice which they may offer. Assessors sit 
 with the Judge and hear the evidence upon which their advice is required. It 
 has not been usual for them to take any oath of office. 
 
 Under a. 101 of the Act, (ante p. Oti) any q\iestion arising in any cause or 
 matter may be referred to a Judge of a County Court, official refi'rce, or to any 
 referee agreed on by the parties, for inquiry and report, and in this way the 
 assistance of exi)erts may be obtained. And under s. 102 (ante p. it8), a cause or 
 matter may, in certain cases tlierein mentioned, be referred to a si)ecial referee 
 (if tiie parties so agree) for trial. 
 
 No power it will be seen is given to the Court under sec. 101, or 102, to 
 refer a cause to anybody but a Judge of a County Court, or an official referee, 
 except by constant of the parties. Where, therefore, a reference is required 
 under those sections to an expert, it would seem the parties must agree on the 
 refeiee to be named. It is possible, however, that tins Rule may be lield so to 
 amplify the power of the Court as to enable it to refer causes fcjr the jjurposes 
 mentioned in sees. 101, 102, to special referees of its own nomination, nidepen- 
 dently of the consent of the jjarties. 
 
 Where a reference is directetl to an expert for inquiry 6r rejiort luider sec. 
 101, or for trial imder sec. 102, that is, of course, an exception to th(^ rule laid 
 down in Morris v. LUiar/li/ Ri/. Ci., suiira, that he cainiot call witnesses : see 
 A' ///«• 34-3(5, rKi2(<i). 
 
 When a question, or a cause or matter, is referred to a special referee under 
 sec. 101, r)r 102, his report would appear to be appealal)le in the same way and 
 within the same time as a Mast(>r's veport : se«! Rules, 43, 84, and heading to 
 Rulrfi 848, 84!), SoO ; but see Rule .5 as to effect of headings. 
 
 rlxpu't Where an expert is required to give evidence, his evidence should he given 
 
 evidence. vM voce, as the Court as a general 
 
 Reforenco 
 to experts 
 under sees. 
 101, 102. 
 
 evidence by conunission ; 
 
 rule discourages tiie taking of such 
 T/ie Attorneii-deneral v. (Jooderliain, 10 V. K. 25!). 
 
 Wiiere parties adduce quasi expert evidence, it is not open to tlie Court, uiwn 
 a trial by jury, to withdraw thi case from the jury, fiecaiLse in thi' opinion of 
 the Court, the witnesses are incompetent to give {'Xjiert evidence, but the 
 evidence must be submitted quuntum raleat ; e.f/., in an issue in which the 
 mental capacity of a testator was in question, the evidence of witnesses who 
 spoke to his mental cajjacity was held to lie admissible even tiiough the 
 witnesses were not in tiie opinion of tiu? Court ex])erts : Reiiun v. \V(ili-r!>,W 
 Otit. App. 8:"). As to the weight to be attached to tiu' conclusions of scientific 
 witnesses : see (Juldsniid v. Tunhrid'je Wells, L. U. 1 Chy. 34!). 
 
 Wliere the opinions of experts on forei^m law are conflicting, the Court will 
 examine for itsidf tlie texts books and judicial decisions of tlit^ foreigiicountry, 
 in order to arrive at a satisfactory conclusion: Riee v. ^/(//i/i, 4 Out. •")7!) ; ?'"■ 
 tUettin, 14 P. D. 142. Tlie Court will not receive tlie opinions of exjuTts as to 
 the proper constructicm of a statute; e.ij., the evidenoe of siirveynrs as to the 
 ni(Hle of making a survt-y under a .statute is iiiadinissil)le : Shitf'ti'il v. IMu ^ 
 Out. Api). 273. 
 
 The costs incurred in order to (jualify experts to give evidence do not ai)|>(^iir 
 to he taxable between party and ji.arty : see Medununu v. t'lurkr, !) 1'. K. 'M". 
 
CHAPTER III. 
 
 SITTINGS OF THE COURTS. 
 
 1. CocKT OF Appeal, 208, 209. 
 
 2. High Court, 210-223. 
 
 (i) Weekly Sittings, 210-212. 
 
 (ii) Sittingg for trials, 213. 
 (iii) Vacation Judges, 214-215. 
 (iv) Divinional Courts, 216-223. 
 
 1. Court OF Appeal. 
 
 308. There shall be five sittings of the Court of Appeal sittings of 
 in the year for the hearing of arguments, commencing on Appeal, 
 the second Tuesday in January, the first Tuesday in March, 
 the second Tuesday in May, the first Tuesday in September, 
 and the second Tuesday in November, or in case any of 
 these days shall be a legal holiday, then on the following 
 day. App. 0. 53. 
 
 209. In case of s'.ttings at any other time being deemed ^j*'^*^"- 
 necessary, or convenient, for the despatch of business, due be Ip-"**^ 
 notice of the time of holding the same will be given. App. p"^"**'^ 
 0.54. 
 
 2. High Court. 
 
 (i) Weekly Sittings, 
 
 «10. A Judge shall sit at Osgoode Hall, every ^e^k, weeki/ ^ 
 except during the vacations, for the purpose of disposing otHighSlatt/Y^'^^i^ 
 all business except trials, which may be trannacted by a 
 single Judge. Rules H. C. J., i. 
 
 The operation of thiH Rule \a at present suspended : see Rule 3 (a) and note. 
 
 811. The business of the weekly sittings shall be taken order ot /^''/C 
 as follows, unless the Judge otherwise orders : — Monday — *'"^^°®" 
 Chambers; Tuesday— Appeals; Wednesday— Court; Thurs- 
 — Chambers; Friday— Court. New. 
 
 '"IHU 
 
 g «■ ■■ . »--if>. 
 
264 
 
 SITTINGS OF THE COURTS. 
 
 Rules 
 
 212-214. 
 
 The operation of this Rule is at present s>i8i)ended : see Rula 3 (a) and note. 
 Until it comes into force the former practice as to the sittings of the Judges 
 in Court and in Chambers is continued : viz., in the Chancery I Ji vision- 
 Monday, Judges' Chambers ; Tuesday, Court motions not required to Vt- set 
 down ; Wednesday, Court motions requiretl to be set down ; Th>u-.s(hiy, Court 
 appeals from Masters, etc. In the (Queen's Bench, and Common Plfiis Ijiivisions, 
 — Tuesday and Friday in each week, Jiidges' Chambers and Court nurtions, 
 including api)eals. 
 
 cas|8to be 2I2. AH Cfises entered for argument on the list shall he 
 order en- Called On and disposed of in the order in which the same 
 
 are entered on the list, unless the Judge otherwise orders. 
 
 Rule 10 of 15th May, 187G. 
 
 tered on 
 list. 
 
 (ii) Sittings for Trials. 
 
 fri"i8^*^°'" '*'*• "^^^^ ^^^^'^ Court shall sit for the trial of actions at 
 such times as may be fixed from time to time. 
 
 The Sittings are at ju'esent fi.\ed under sees. 8!)-94 of the Act. 
 
 (iii) Vacation Judges. 
 
 Tud^es"" 214. One or more of the Judges of the High Court shall 
 be selected at the commencement of each Long Vacation, 
 for the hearing in Toronto during vacation of all such 
 applications as may require to be immediately or promptly 
 heard. Such Judge or Judges shall act as vacation Judge 
 or Judges for one year from appointment. In the absence 
 of arrangement between the Judges, the vacation Judon or 
 Judges shall be the Judge or Judges last appointed (v he'; 
 as Judge or Judges of the said High Court ot of any C ■ 
 whose jurisdiction is by the Act vested in the said d.h 
 Court) who have not already served as vacation Judges d 
 any such Court and if there shall not be any Judge or 
 Judges for the time being of the said High Court who shall 
 not have so served, then the vacation Judge or Judges 
 shall be the Judge or Judges (if any) who has or have not 
 so served and the senior Judge or Judges who has or 
 have so served once only according to seniority of appoint- 
 ment whether in the said High Court or such other 
 Court as aforesaid, J. A. Rule 481. 
 
 Same in effect as Eng. R., February, 1875, R. 9 ; (1883, R. Drw), except 
 that the latter provides for two Judges, instead of one or more. It provides 
 also that the Lord Chancellor is not to be a vacation Judge. 
 
 No provision, it will be observed, is made for the attendance of vacatmn 
 Judges of the Court of Apiieal. 
 
 i! 
 
HIGH COURT — DIVISIONAL COURTS. 
 
 265 
 
 No business is heard by the vacation Judges, or any other Judges sitting for RiUes 
 them under the next Rule, except such as requires "to be immediately or216|216. 
 promptly heard " within the meaning of the above Rule. No Judges except 
 the viication Judges, or those sitting for them, can dispose of business in vaca- 
 tion : I'er Lush and LtJjjes, JJ., 24th Sept., 1877. But qtiery. 
 
 An application for judgment under Rule 739, will be heard as urgent if the 
 right to make it has accrued in vacation, not otherwise ; Ibid. But qucri/. 
 
 As to what is vacation business, see also Re WUjiin Junction Railway Co., 
 L. R. 10 Chy. 541. 
 
 i! 
 
 315. The vacation Judges may sit either separately, or Jurisdio- 
 together as a Divisional Court, as occasion shall require, vocation 
 and may hear and dispose of all actions, matters, and other ■^"'^'^'^■*' 
 business to whatever Division the same may be assigned. 
 No order made by a vacation Judge shall be reversed or 
 varied except by a Divisional Court or the Court of 
 Appeal, (a) or the Judge who made the order. Any other 
 Judge of the High Court may sit in vacation for any vacation 
 Judge. J. A. Rule 482. 
 
 («)TheEng. R. 1875, O. 61, r. (> (1883, E. 05(5), has here the words "or a 
 
 .Fudge thereof " ; it is otherwise the same. 
 
 Motions requiring to be made within a periwl defined by reference to the old 
 Trinity Term must be made to the vacation Judge : Oilc^ v. Morrow, 4 Ont, 
 
 m. 
 
 (iv) Divisional Courts. 
 
 216. The sittings of the Divisional Courts shall be three %'^^l^l°l 
 in every year, viz., the Michaelmas sittings, the. Hilary courts^oj 
 sittings, and the Easter sittings. 
 
 Q. B. and 
 
 C.P. 
 
 Divisions. 
 
 Ui) The Michaelmas sittings shall begin on the third 
 Monday in November, and end on Saturday of the 
 second week thereafter ; the Hilary sittings shall 
 begin on the first Monday in February, and end 
 on the Saturday of the following week ; the Easter 
 sittings shall begin on the third Monday in May, 
 and end on the Saturday of the second week there- 
 after ; 
 
 [h) In case it appears to the Judges of any Division of 
 the said Court, or a majority of them, that the 
 number of days so provided for holding any sit- 
 tings is not required, or is insufficient, for the due 
 despatch of the business to be transacted by the 
 Court in such sittings, such Judges may from time, 
 shorten the period for holding the sittings to such 
 
266 
 
 SITTIN08 OF THE COUBTS. 
 
 Bulea 
 !il7-ai9. 
 
 period, not less than two weeks, or increase the 
 length of the same to any period, as the case may 
 require ; 
 
 (c) The preceding provisions of this Bule are not to 
 apply to the Chancery Division except when the 
 Judges thereof shall he of opinion that the busi- 
 ness of the said Division is such as to render the 
 said provisions necessary or convenient for the due 
 despatch of business, and shall give notice to that 
 effect. 
 
 /? C 
 
 Sittings of SI 7. The Divisional Court of the C^ncery Division 
 courtir^ shall hold sittings commencing on the^wsV^hursdayin 
 cii. Div. g^teflafefi^r^e fir«t Tbureday^ in December, and third 
 Thursday in February j n. cft ob y^f ^ J^A. Rule 624. 
 
 '^* ^' *■' These sittings correspond with the former Re-hearing Terms : see Chy. Gen, 
 
 ^ tac-l\ ', '«^' o. 413. 
 
 / : ' ' 
 
 218. Divisional Courts of the High Court are to sit at 
 such further or other times as may be directed by the High 
 Court or as, in the opinion of the Judges of the Division, 
 may be necessary for the due despatch of business. J. A. 
 Rule 524. 
 
 Proceed- 
 ings to be 
 taken be- 
 fore Divi- 
 sional 
 Courts. 
 
 'y 
 
 i, t c C 4. <. (l.^ , 
 
 130 C 
 
 319. The following proceedings and matters shall be 
 heard and determined before the Divisional Courts; but 
 nothing herein contained shall be construed so as to take 
 away or limit the power of a single Judge to hear and deter- 
 mine any such proceedings or matters in any case in which 
 he has heretofore had power to do so, {d) or so as to require 
 any interlocutory proceeding therein, heretofore taken 
 before a single Judge, to be taken before a Divisional 
 Court (a) : ^up^, ■;../ /? / ? . -, '"j a^/.-a •<■■ ^' /-^«^ 
 
 Appeals from orders of a Judge in Chambers (&). 
 
 For restrictions upon the right to appeal in such cases, see sees, 68 and 69 of 
 the Act, pp. 77-78. 
 
 There is no appeal to the Divisional Court from a Judge sitting in Court : 
 see note to sec. 61, p. 71. 
 
 Proceedings directed by any Statute to be taken before 
 the Court, and in which the decision of the Court 
 is final. 
 
HIOH COURT — DIVISIONAL COURTS. 
 
 267 
 
 Cases of Habeas Corpus, in which a Judge directs that ^^* **>• 
 a motion for the writ, or the writ be made return- 
 able before a Divisional Court. 
 
 Otber (c) cases where all parties agree that the same 
 be heard before a Divisional Court. 
 
 Applications for new trials in the said Divisions where 
 the action has been tried with a jury (e). J. A. 
 Rule 471. • 
 
 («) The preceding part of this RiUe is taktn from the English Order, Dec, 
 1876, R. 8. See Mitli-s of 1883, R. 884. 
 
 {!)) The present English Rule is confined to appeals from Chambers in the 
 Q. B. Division. 
 
 (c) Instead of the word "other" the English Rule has the word "8i)eoial." 
 
 The Knglish Rule also includes proceedings on the Crown side of the Queen's ■ 
 Bench Division ; apfwals from Revising Barristers, and proceedings relating 
 to Election Petitions, Parliamentary and Municipal ; apiieals under section 6 
 of the County Courts Act, 1875 ; proceedings on the Revenue side of the 
 Exchequer Division ; and cases stated by the Railway Commissioners under 
 36&37 Vict. c. 48. 
 
 id) For the c&ses here referred to, see R. S. O. 1877, c. 50, ss. 281-282. 
 
 (e) Also motions against judgments where the trial was without a jury : see 
 Rules 789, 708. 
 
 A Divisional Court ou^ht not to entertain applications to quash by-laws, 
 but qurtcrf whether a Divisional Court has not jurisdiction : Landry v. Ottawa, 
 11 P. R. 442. 
 
 A Divisional Court has no jurisdiction in apjieal from a Judge under The 
 RaUimtj Act, R. S. C. c. 109, s. 8 (28). The Judge under that clause acts not as a 
 Judge in Chambers, but as a persmia designata for the purixases of the Act : 
 Re McMillan <!• the Uuelph Junction By. Co., 12 P. R. 294. 
 
 The jurisdiction of the High Court in criminal matters is exercised by the 
 Q. B. or C. P. Divisions sitting as such Divisions, not as Divisional Courts : 
 see Reg. v. Beemcr, 15 Ont. 206. 
 
 The jurisdiction of Divisional Courts is'strictly limited by these provisions. 
 It hag therefore no jxjwer to hear an appeal from a Referee or Master : Clarke 
 V. Jamie»m, 9 C. L. T. 97 ; or from the Master in Chambers : Ball v, Cath- 
 cart, 16 Ont. 525. 
 
 280. Six cases, in the order of their priority on the Peremp- 
 general list of a Divisional Court, shall be set down by the ^'^ 
 Registrar in the peremptory list for argument, on each day 
 of the Sittings of the Divisional Court, excepting upon the 
 last day, and, except by consent and by leave of the Court, 
 no argument shall be heard in any other case, until the 
 cases in the peremptory list for the day are disposed of. 
 C.L. Rules 17 Nov. 1875, 9, 10; 27 Nov. 1880. 
 
268 
 
 SITTINGS OF THE COURTS. 
 
 Rules 
 221-223. 
 
 PriBtponoil 
 
 CRSeB. 
 
 I'arty 
 ready to 
 proceed 
 witii caHc 
 on povenii) 
 tory liHt, 
 may be 
 beard, 
 
 tllOURh 
 
 other Hide 
 not ready, 
 or cause 
 may bo on 
 larKod. 
 
 221. Any case entered on the peremptory list for any 
 day, and postponed by order, or default, shall be placed at 
 the foot of the general list, unless, for suflScient cause, it 
 is otherwise specially ordered by the Court. C. L. Rules 
 17 Nov. 1875, 11. 
 
 222. If either party to a case on the peremptory list, is 
 prepared to be heard and the other party is not prepared, 
 and it is not duly postponed as aforesaid, the Court may hear 
 the party so prepared, whereupon the case shall stand ioi 
 judgment ; or the Court may extend the time oa sufficieaf 
 cause being shown by affidavit, to enable the other party to 
 be heard, on payment of the costs of the day, if the Court 
 shall so order. If neither party to a case on the peremp- 
 tory list is ready, the Court may, if it sees fit, strike the 
 case out of the list. C. L. Rules 17 Nov. 1875, 12. 
 
 ACTIONS— 
 
 Causes on 22*S. If all the cases on the peremptory list for any 
 ——"'■" day, are not disposed of on that day, such cases shall be 
 
 tory list 
 not dis- 
 posed of, to 
 
 notdis- ^entered by the Registrar first on the peremptory list for the 
 
 posed of, to ^'^^ "^^ "^^ "J "'^'^ ^VK,f^tauLuiJ. xii.av yjxi uiji^ ^^v-iv^ixj^uv/ij iiou iv/. v"v 
 
 be entered ncxt day as part of the six cases for such next day. C. L. 
 next day. RuIg 17 Nov. 1875, 13 ; 27 Nov. 1880. 
 
CHAPTER IV. 
 
 ACTIONS— COMMENCEMENT OF ACTIONS, ETC. 
 
 \- 
 
 1, FnitM AND Commencement 
 Action, 221-24'.). 
 
 (i) 
 
 (ii) 
 (iii) 
 
 (iv) 
 
 Writ of Siiiiimons, 224-237. 
 IteMu-al of Writ, 23«, 23i). 
 Indomement of AddrcHs, 240- 
 
 242. 
 Inddr-iemcnt of Claim, 243- 
 24i». 
 
 2. D18CI/O8UKE nv SoLiciToim and 
 
 P1.AINTIK1S, 2.50, 251. 
 
 3, Service of Writ of Summons, 
 
 252.27(). 
 
 (i) Mode 0/ Service, 252-270. 
 (a) Married women, infants, 
 
 lunaticx, 257-2()4. 
 (h) Partners, 265, 26G. 
 
 (c) CorponUiom, 267-270. 
 (ii) Service out of Ontario, 271- 
 274. 
 
 4. Ai'i'EAHANCE, ETC., 275-299. 
 
 (i) General rules, 275-287. 
 
 (ii) Partners, 288, 289. 
 (iii) Dower, 290-292. 
 (iv) Jtecovery of land, 293-298. 
 (v) Limited defence, 299. 
 
 5. PAKTiEa, 300-339. 
 
 (i) Generally, 300-334. 
 (ii) Gi<rtrdt(ijw, 335-339. 
 
 6. Joinder of causeh of action. 
 
 340-346. 
 
 7. mortoaoe actions. 347-363. 
 
 8. Crown actions, 364-367. 
 
 1. Form and Commencement of Action. 
 
 (i) Writ of Suinmons. 
 
 224. All actions which prior to The Ontario Judicature ah actions 
 Act, 1881, were commenced by [any form of] writ, and allweuced by 
 suits which were commenced by bill or information shall be sumuions. 
 commenced by the issue of a writ of summons, («) which 
 shall be prepared by the plaintiif, (b) and shall contain the 
 name of the Division from which it is issued, the names 
 of the parties and the characters in which they sue 
 and are sued, (c) and the office (d) in which and the 
 time within which the defendant is to enter his appear- 
 ance, and shall be indorsed with a short statement of the 
 nature of the plaintiffs claim, (e) See K. S. 0. 1877, c. 50, 
 8- 14 ; c. 52, 8. 4. J. A. Rules 1, 5, 13, 22, 23. 
 
 (a) taken from original Rule 1 : Comp. Eng. R. 1875, O. 1, r. 1, (1883 R. 1.) 
 
270 
 
 COMMENCEMENT OF ACTIONS. 
 
 Rule 2M. 
 
 Actions 
 ({e.ierally. 
 
 I'rocoed- 
 Ings by 
 vapias. 
 
 Dower. 
 
 Abscond- 
 ing debtors 
 
 Replevin. 
 
 Inforum- 
 tione. 
 
 Indorse- 
 ment of 
 claim. 
 
 Tim term " actiim " in (U^finttd by tli« Aot, (m. 2) to be a civil priKjiTdinR com. 
 mcncwl by writ or in mucIi other niannor aH may b« jm-HcrilMHl by Hul,t „f 
 Court. Ah to tliti c'ffcct of tluH definition: nee J)tirei/ v. MV/iVA'/cc, 33 J^ T 
 N. M. 77« ; 24 W. R. 244 ; /Inmlyn v. IMMei/, « Q, «. D. tl3. 
 
 Thu wohIh in brocikntw have U-en intnKhicwl to niak(! it clear that tluTc Ik 
 now to Ix! no Npecial form of writ for particular kinrUof actionrt such iin prdccHl- 
 ingH by luipiiix and againHt abHcondint; debtorw, dower, replevin, ejectment, etc 
 Hee alMo A/'/cv 231, 24!», 2iK», 1045, ]08<l, 1(K»H, 
 
 The effect of the J. A. Ilules Im to aboliHh the non-finality which a judg- 
 ment in ejectment foniierly had. A fonner judgment on the Maiiie(|ii(>Nti(in 
 will now HUHtain a defenctt of /'('.s' jiidiciitii : Hall v. Citlliaut, 1(1 Out. 526; 
 Codirdiic v. /lomll/iiii I'ror. A. .S'., 1.5 Ont. 128. 
 
 In Iliilifi-lsiiii v. (.'iiiilloii, !t P. R. 1(>, Onler, .r., exi)reHHe(l the opiiiidn that 
 iictionM foniierly commenced by writ of citjna.i muHt now 1k^ coiiiiiiciiccd l)y 
 writ of Hummons. This view wan not concurred in b^y Cameron, .1,, in VetUr 
 V. Ciiirdii, 4() ir. C. (I. B. 4;V), 441, but the detenu ination of the iK)int wiwmit 
 necesHary in either case ; it was, however, made clear that a writ of miim 
 mifrht l)e issued as formerly, either liefore : Veller y, Cowdti, siiimi, or after: 
 Kiilicdson V. t'oii/toiij Kupnt, action brought, as a jiroceecling ancillary t<> an 
 action, and not abolished by the •Tud. Act : see 2 C. L. T. fid. All (luestion 
 on the .subject is now set at rest by the present Kule. and Rule KM:"), which 
 latter alH)lishes writs of m. re. and substit (tes an order which must lie made 
 "in an action" that is a i>roceeding commenced by writ of suminonH in the 
 ordinary way. 
 
 Before the Con. I{iile>s it was not clear how far R. S. O., c. .5<i, The Ihmt 
 I'niCA'.dii.rc Act was affectetl by the iFud. Act An action of dower is now how- 
 ever to be commenced by an onlinary writ of summons, and prosecntwl in the 
 same way as other actions : see Rule 290, and R. S. O. c. 5(). 
 
 The modes of instituting proceedings against an absconding debtor under 
 R. a. O. 1877 c. ()8 : .Sutherland v. Lew, Mr. Dalton, 23rd Aug., 1881, and in 
 replevin : Lawlenn v. Rculford, 9 P. R. 33 ; Campari v. Lucan, !) P. R. 142 
 were unaffected by the J. A. 1881 ; but when instituted were regulated in 
 matters (jf ordinary j>rocedure by the Itiden : see Wallace v. C'Mniii, i) P. R. 
 144. An ordinary writ of summons is now the way to commence such proceed- 
 ings : see Rides 1089, W.m. 
 
 An action may, by amendment of the writ and statement of claim Iw turned 
 into an action by the A ttoniey-(ieneral at the suit of a relator correniionding to 
 an information under the old i)ractice, the sanction of the Attorney-General 
 being obtained : Caldirell v. Pai/lium Harlxnir, etc., t'o.,2Ch. 1). 221; see B«/f 
 444. The title information is no longer to be usetl : Attirrneii-iknend v. 
 tihrewshwnj Itridije, 42 L. T. N. S. 79 ; W. N. 1880, 23. An action by the 
 Attorney-General can only be instituted by his sanction : see Attitmeij-OeMnl 
 v. TariiUo Street Railway Co., 2 Chy. Ch. 165, and his fiat should be obtained 
 and indorsed on the writ and a copy thereof. The copy should then be filed 
 under Ride 234. 
 
 (h) Taken from original Rule 5. Corresiwnds substantially with Eng, R. 
 1875, O. 2, r. 1, (1883, R. 3). Comp. Eng. H. 1875, 5 Sch. A. ; R. S, 0, 
 1877, 0. .50, ss. 3, 29 et seq. ; lb. c. G7, s. 8, el seq. ; lb. o. 137. 
 
 It is irregular to procee<l by statement of claim upon a different cause of 
 action from that mentioned in the writ : see United Telephone Co. v. Fostff, 
 .59 L. T. N. S. 852, and notes to Ride 368. 
 
 In case a mandaimm, or an injunction, or a receiver is claimed, the P'*'"'.' j 
 ou^ht to indorse his writ accordingly, though, if the necessity for such reliet 
 anses incidentally in the course of the action, the Conrt has ix)wer topvetne 
 relief even if a claim for it was not indorsed on ttie writ : site Volehnvm y. 
 Cdebourne, 1 Ch. D. 690 ; Norton v. Oover, W. N., 1877, 206. A defective 
 indorsement may be amended. A general power ot amending proceedings is 
 given by Rule 444. , . , 
 
' .v>*''k'(Ms^j»?*M*I 
 
 WRIT OF SUMMONS. 
 
 271 
 
 In an notion for adininiMtration, tho writ Mhould hIiow that hucIi in tlui iiutm'tt Ruin 
 <if tli(MW)tii)n, by l)t<iiig entitled " in the matter uf the uMtato of " : lie Junen, 226, iM, 
 Kpcv. tVu, 24'W. R.317. 
 
 No very prticine indorKoinent of tho nature of tho claim iHrequirtMl ; neo Itule 
 
 •MX 
 
 A writ iigaiuHt A. O. Sl K. iiidofHtwi to hav*< Hot UHide a dt>ed from A. to (). 
 uml iidtH'd from O. to A. watt heht Hutficieiit on motion by K. to have Herviee 
 (111 liini Hct iwidt) iw Mhowing no oaiwo of action u){uinHt him : (Jiliiwre v. Orftrril, 
 11 1'. U. 437. 
 
 (i) Tnkeii from oriKinal Rnh: 13, identical witli the Eng. R. 18'5, O. 3, r. 4, 
 (1883, K. 14.) 
 
 lu Win-i-dki-i' V. I'ni<i; 2 Ch. I). 10!>, it wan held by JeHHol, M.R., and in Rf AotiouHou 
 %/f, 5 Ch. 1). 540,' by Bacon, V.G., and in Adrock- v. Pi;ln-», W. N. 187ti, ''«»'»" "' "^ 
 13!) ; 2 Clmrl. X. (.'. (Court) 288, by MalinH, V.C., that in an onlinary creditorH' "'*'"*■ 
 uctiun for luhniiiiNtration of tiie real and i)erHonal eHtate of a deceaHed debtor, 
 the ivction niiiNt Ik- by tlie plaintiff on iN-hulf of hiniHelf and all the other 
 erwlitortf ; and tiic writ nnmt l)e indorHfd iiccorrlingly. In the earlier case of 
 C.imper v. lilinmll, I Ch. U. (i!(l. Hall, V.C., hud taken a contrary view. In the 
 lattT coNi' of /'/'.'//•'■ V. Co.i-, 24 W. R. 317, .leHxel, M.K., waid that when it 
 ujipenred in the iitatement of claim that the |>laintitf waH Huing on behalf of 
 hiniatilf and otlier creditorH, it was not neccHsary to amend the writ by the 
 insertion of thorn! wordn. 
 
 Where a judgment \n a)>plied for by motion under the former Chancery 
 (trderH 407, 1)38, etc. (now Rides iHW, !(72), it haf* not been the practice to require 
 tlie Htyle of tlie cauHe to hIicw that the Huit \h on liehalf of all the creditorn, etc. 
 See also Rf libwiit, 27 W. R. 8(i5. 
 
 A Htatenient of the repreHentative caj>acity in which a plaintiff huch cannot Or in rni 
 l)e mippliwl fi-om allegations in plaintiflf's affidavits on a motion : llynes v, »"n*"-*^^'»' 
 Fiditr, 4 Out. 78. 
 
 (rf) Comp. Eng. R. 1875, O. 5, r. 2, 3, (1883, R. 25, 26.) 
 
 (() Taken from original Ride 23. 
 
 The Eng. R., 1875, O. 5, r. 5 (1883, R. 32,) gives directions also as to the 
 description of [)ai>er to be used. 
 
 Where notice of action is necessary it may not be required where the 
 |)rincipal relief sought is an injunction, and damages are only claimed as 
 wibsidiary thei-eto : see Flmver v. Lmo Leyttm, 5 Ch. D. 347. 
 
 225. Every matter or proceeding not commenced by ^^'■o°«^'};^ 
 writ of summons shall be assigned to one of the Divisions aBsipnea to 
 of the High Court, by marking the document by which thetheH.c. 
 same is commenced with the name of the Division. See 
 
 44 V. c. 5 8. 25. 
 
 Petitionii, lytices of motion for administration or appointment of a guardian, 
 •"tc, aro examples of matters not commenced by writ of summons. 
 
 226. Writs of summons shall be issued in rotation from J^/j*^|^° 
 the Queen's Bench, Chancery, and Common Pleas Divi- routimi. 
 sions; and in the County of York shall be issued by the 
 
 Clerk of the Process, and in otUer counties or union of 
 counties for judicial purposes, by the Deputy Clerk of the 
 Crown or Local Registrar, as the case may be. 
 
 *^S: 
 
 .ire- 
 Bcintatlvu 
 cUaraoter. 
 
 Issue of 
 writ. 
 
S72 
 
 Rules 
 227-231. 
 
 County 
 CourtB. 
 
 COMMENCEMENT OF ACTIONS. 
 
 (a) Writs issued by a Deputy Clerk or a Local Eegidtrar 
 need not be signed or sealed by the Clerk of the Process 
 See J. A. Bule 545 ; E. S. 0. 1877, c. 50, ss. 5, 6. 
 
 227. The Clerks of the County Courts shall issue all 
 similar writs in the County Courts respectively. R. S. 0. 
 1877, c. 50 s. 6. 
 
 Office Iron 
 which 
 
 23». The Clerk of the Process and each Deputy Clerk 
 
 isHuetito of the Crown, Local Kegistrar and Clerk of each County 
 
 tho^imrhiy'. Court, shall note in the margin of every writ issued by him, 
 
 from what office and ia what County the writ issued, and 
 
 shall subscribe his name thereto. See R. S. 0. 1877, c.50. 
 
 8. 9. 
 
 se^ihiR<Mi'i 32!>. Every writ of summons shall be signed and sealed 
 writ. by the officer issuing the same, and shall thereupon be 
 deemed to be issued. J. A. Rule 24. 
 
 Identical with the Eng. R. 1875, O. 5, v. 0, (1883, R. 33.) 
 
 The issue of the writ is not so far a judicial act that the Court will not take 
 cognizance of the fact that it was not issued till later in the day than the caiisi! 
 of action arose : Vlurke v. Bradlaugh, 8 Q. B. D. 03. 
 
 Writ may 230. A plaintiff may issue his writ of summons in anv 
 anycc".ny. County. J. A. Eulc 20 ; R. S. 0. 1877. c. 50, s. 10. 
 
 This Rule corresjKjnds substantially with the Kiig. R. 187.'), O. .'), r. 1 (ISKi. 
 R. 23) ; and with the former practice in this Province as resnects transitui'v 
 actions. Di»trict Registries were established in England by The Jiidicatuiv 
 Act of 1873, s. (K), to decentralize the business, as far as consistent with the due 
 administration of justice. 
 
 The writ in an action of ejectmc nt may under this Rtdc issue out of the 
 l)ro|)er office in any County without reference to the locality of the laud, 
 though the trial must, under Rule 653, be in the County where the land lies: 
 Canada Permanent, etc. v. Foley, 9 P. R. 273. 
 
 An action for assignment of dower is an action for the recoveiy of land : 
 MctMloch V. McVidloch, 4 C. L. T. 252. 
 
 Writ for 
 service in 
 Ontario. 
 
 2ai. [Where the service is to be made in Ontario] the 
 writ of summons for the commencement of an action shall 
 be in Form No. 1 in the Appendix hereto, with such 
 variations as circumstances may require. J. A. Rule 7. 
 
 Corresponds with the English Rule, 1875, O. 2, s. 3 (1883, R. 5), except the 
 words in brackets. The Rule applies to ejectment as well as other actions, buimr 
 the J. A., 1881, in Equity a suit for land, under The AdminiMratimi of yw"'-; 
 Act or otherv.ise, did not differ from other suits, but in the OommonLa» 
 Courts the case was otherwise, and a special form of writ of ejectment, pre- 
 scribed by 8. 220 of the C. L. P. Act of 1856 (R. S. 0. 1877, c. 51, a. 2) waa in use. 
 The C. L. P. Act, 1856, U. C, abolished a previous cumbrous method of pr<>- 
 

 WRIT OF SUMMONS. 
 
 273 
 
 ciwling by ejectment, and i)rf)vided a siinjJer lirocediire in its pliice, but U-ft Rule 23X 
 thf proceedings in ejt^ctuient differi nt in many -eHinjctH from those in ordinary 
 iictions i tiie writ was diiferent : it gave sixteen days to aijpear, instead of, as 
 inother actions, eigiit ; and there were no i)leiMliug's. Since 1881 an action 
 for tiu! recovery of land will now, wi^li a few e.\cei)tions (ex])res»ly mentioned in 
 the Itiili'x), iiroceed like any other action. The writ will bp the same, the 
 indorsement thereon, as in other actions, showing the nature of the claim ; and 
 there will 1h' jileadings. The most material differences will lie, that the right 
 iif II Iftiidionl to intervene and defend is jn-eserved ; Jt nil's 2!(3, 21*4 ; and tluM a 
 (lefeiidant in imssession need not in general pleswl his title ; /ii'lr 41(i. 
 
 A writ in the form for service witliin, the jurisdiction will not be set aside 
 liefore service l)ecause defendant is resident without the jurisdiction, for the 
 plaintiff niav wait until he comes within the jurif^diction to serve him : Tin; 
 Hcknshi, .-)! L. J. Adm. 10 ;.3<» W. K. (i1(i ; 47_L. T. N. M. 440 ; _1« C. L. J. 
 101 ; and see N/d'i'; v. (/' ■ 
 
 T'i 
 
 P. R. 102 : /V.y v. M»,>n; 23 <i. B. D. 3)15, 3i)7. 
 
 A writ for service on ixTsons domiciled within, was served on them without 
 the jurisdiction. Leave was given to issue tniiic [irntiinc a concurrent writ for 
 service out of the jurisdiction, and to amend the copies served in accordance 
 tht'itwith : MHciiIJ'i v. Jjitvin, I'. R. 27"). 
 
 Whei-e a writ for service out of the jurisdiction is issued, and the defendant 
 is abroiul, the Judge may, if the circumstances warrant substitutioiuU service, 
 (irderacopy to Im- s(>r'.t'd within the jurisdiction, although it is not in the fonn 
 for service within the jurisdiction: Fonl v. Slicphnnl, ii4 W. K. 03; .')3 
 L. T, N. S. .■■)(i4. See notes to /li'lc 271. 
 
 In Till- iV. A. Srholtiii, 3(i W. K. o.")'.), a writ was set iiside for not containing 
 till' afldress of defendant as prescribed l)y the form of writ, but the decision 
 seems to have proceeded upon the fact that the defendant was a foreign 
 ciiriKiration, and if the address abroad liad been inserted the writ could not 
 uikW the Kuglisli Ri'li's have l)een issued witiiout leave. In (hit., see Itnli' 
 L';4. See also Snlin'rk v. YhIiiih Mlaiiiij Cn., 3;") \V. K. 780. 
 
 2!i3. [Where there i.s jurisdiction to proceed with an writ and 
 action on a service out of (Ontario, J the writ of summons "ervice"'^ 
 
 out 
 
 to be so served (a) shall be in Form No. 2, in the Appen-^fJ,""*''"''' 
 dix hereto, with such variations as circumstances may 
 require, and shall hear the indorsement contained in said 
 form purporting that, such writ is for service out of 
 Ontario. [Where a defendant is not a British subject, and 
 is not in British Dominions, notice of the writ of summons 
 is to be served in lieu of service of the writ, and] such 
 notice shall he in Form No. 8 in the Appendix with such 
 variations as circumstances may require. J. A. Rule 8 ; 
 R. S. 0. 1877, c. 50, s. 48. 
 
 SecEng. H., l«7r), (). 2, r. o (188.% R. 7). 
 
 The first clause in brackets is not in the Knglish Rule, but does not vary tht- 
 Htfect of tii.^ Hiilr. U (a) the English Rule has the wn-(i» "or of which notice 
 w to to given out of the jurisdiction.' In other respects the Bnlc correSiHrnds 
 sutetantuilly with the Knglish Rule. 
 
 
 MiglaiKl HI,,,;,, til,, .ludicaturi^ Act: WiKtmiiii \: AkticMm/H, E. M. Svickare- 
 mnk, 1 Kx. I). 237, RfiidiiigUm v. JidhUiniton, 1 P. D. 42(J ; and to apply to 
 J.A. 18 
 

 274 
 
 COMMENCEMKNT OF ACTIONS. 
 
 ^J' 
 
 Rules the Cliancoiy Division equally with the other Divisions : /t<' lluminl, I'adh/ 
 
 233-236. V. Vamphdiiscn, 10 Ch. D. .TOO. As to the form of af!i(hivit of nervice : s^ 
 BuatroK v. Jhtatros, 14 Ch. D. HI!), and Form No. 4i5 in the ApiH'uchx. 
 
 Wliere a writ for service on a foreigner out of tlie jurisdiction was served on 
 him while within the jurisdiction on a ten)iK)rary visit, a jiuignieiit signed ky 
 default of ai)i)earaTice was held regular : Sninu v. Co/i', 7 V. K. 1()'2. 
 
 When a foreigner is ser\'ed o\it of tin 
 notice as prescribed by tliis Itiilf, the 
 Q. B. D. (i. 
 
 See also notes to Rule 'III. 
 
 jurisdiction, with a writ, instead (if a 
 service is void : IJcic'l.tifii y, Fahir, 21 
 
 Date and 
 teste of 
 writ. 
 
 /J^/ 
 
 2liii, Every writ oi «ummonBft»^every ether writ shall 
 bear date on the day on which the same is issued, and 
 shall be tested in the name gf jthi' President of the High 
 Court of Justice, and^shftll requite tlie defendant to appear 
 thereto in ten days after service [including the day of 
 servicel , if the service is^ to be made in Ontario.'' !.'#' 
 
 Rule 9. 
 
 
 ■/" 
 
 f/t < ^t' 
 
 ^4)1^^ 
 
 z 
 
 7 
 
 £^ ^ 
 
 / ' 
 
 i^ .J ii 
 
 cU^ 
 
 Corresirands substantially with the Eng. R. 1875, O. 2, r. 8 (1883, R. 10). 
 The writ is in England tested in the name of the Lord Chancellor ; or, if the 
 office of Lord Chancellor is vacant, in the name of the Lord Cliief Justice (if 
 England. In Ontario Ijy section 3, sub-section 10, of the Act, tiie Po-sident of 
 the High Court is "that one of the Presidents of the Queen's Hencli, Chancery 
 and Common Pleas Divisions, who, for the time l>eing, is first in onler of 
 seniority." 
 
 Every writ must have she full title of the action, including the names of all 
 the defendants, but need only be directed to the jjarticular defendant or 
 defendants intended to he served with it. Where different times have to be 
 mentioned for different defendants to apiK'ar, the proiKT course is to issjti 
 concurrent writs : Traill v. Porter, 1 L. R. Ir. (K). 
 
 A writ issued after the cause of action accrued, but on the same day is good. 
 The issue of the writ is the act of the pavty and not of the Court, and the 
 Court will in such case inquire as to the actual time, and not refer the act to 
 the first moment of the day : Clark v. liradlaiii/h, 7 Q. B. D. I.'')! ; 8 Q. B. D. 
 63 ; see Lord Dorchester v. I'Hrie, 3 Doug. 273 ; ' Rob & Joseph Dig. 3750. 
 
 The words in brackets were not in the origin.il Itide, but the form of writ 
 (No. 1) notified the defendant to aj>i)ear within ten days after service " inclusive 
 of the day of such service " and even under the original Itide the time was to 
 Iks so computed : Vornish v. Manniiuj, 18 C. L. J. 70, 143 ; 2C. L. T. 105, and 
 see Rules 27r), 474. 
 
 See notes to Rule 444 as to irregu'arities in the teste of writs, and amendment 
 thereof. 
 
 Copy to be !234. The plaintiff or his solicitor shall, on presenting 
 any writ of summons for sealing, leave with the officer a 
 copy of such writ, and of all the indorsements thereon, 
 signed by or for the solicitor leaving the same, or by the 
 plaintifif himself if he sues in person. J. A. Rule 547, 
 first part. 
 
 ProcesK 
 Book. 
 
 S35. The officer issuing the writ shall make an entry 
 of every writ of summons issued by him in a book to be 
 
• '■ •. T r?-'->f.^ 
 
 WRIT OF SUMMONS. 
 
 275 
 
 tailed the Process Book, which is to be kept iu the manner f^^Li 
 in which process books have heretofore been kept ; and 
 the action shall be distinguished by a number in the 
 manner in which actions are now distinguished in such 
 last mentioned books ; and in case of any further proceed- 
 ing iu the action, an entry thereof shall be made in 
 another book to be called the Procedure Book, which is to 
 he kept in the manner in which Procedure Books have 
 heretofore been kept. J. A. Eule 26. 
 
 Sw Eng. R, IHTo (). 5, r. S, (1883, K. 35) which requires the action to be 
 ilii^tinguished by the dati^ of the year, and a letter as well as a number. There 
 iuvalso some other minor variations. 
 
 2JJ6. The plaintiff in any action may, at the time of, conourrent 
 or at any time during twelve months after the issuing of 
 the original writ of summons, issue one or more concur- 
 rent writ or writs, each concurrent writ to bear teste of the 
 same day as the original writ, and to be marked by the 
 officer issuing the same with the word " concurrent " in the 
 margin, and the date of issuing the concurrent writ : 
 Provided always, that such concurrent writ or writs shall 
 only be in force for the period during which the original 
 writ in such action is in force. J. A. Kule 27. 
 
 Comp. Eng. R. 1875 O. 6, r. 1, (1883, R. 40.) 
 
 'Phe twelve months are calendar months : Rule 472. The time named in the 
 English R\ile is the same. 
 
 The time by tlie C. L. P. Act R. S. 0. 1887, o. 50, ss. 26-27. was six months. 
 .Soalso by the English 0. L. P. Act, s. 9. With tliat exception the present Kule 
 is substantially the same as section 26 of the Ontario (J. L. P. Act, R. S. O. 
 
 l»i", c. M. 
 
 The English Rule requires that the word "concurrent" and the date 
 should be marked with a seal to be impressed upon the writ by the proper 
 
 officer. 
 
 % the terms of this /(ulc the concurrent writ can only be issued within the 
 twelve months for which the original writ is current : see also Smallpaiji' 
 
 ■ ) »«,'/«, 17 Q. B. D. 644. And under similar language in the section of the 
 I • -1. P. Act aliove referred to, it was held that a concurrent writ could not Ixi 
 '•isupd ofter the renewal of the original writ : Vole v. Sherard, 11 Ex 482 ; but 
 ii"W, however, luider Rule 485, the Court or Judge may enlarge the time, and 
 after the renewal, allow a concurrent writ to issue : SmuUpwie v. Vouije, itiqira, 
 ■M Ri Jimes, Kyr,' v. 0>x, 46 L. J. Chy. 316 ; W. N. 1877, ;18. 
 
 » hen' different times arc to be mentioned for different defendants to aj)pear, 
 tlicproiier course is to issue ctmcurrtnit writs : Traill v. I'uvtcr, 1 L. R. Ir. 60 ; 
 ^'ithat that course will \v jmiper where, under lUUe 276, defendants out of the 
 JM'iwhction have different times to ap|>ear, or where some defendants are within 
 « others witlumt the jurisdiction. See next linlc, and BcddimjUni v. 
 *"'«7K 24 W. R. 348 ; 34 L. T. N. S. 366 ; 45 L. J. (P. D. & A.) 44. 
 
 -37. A writ for service within the jurisdiction may be concurrent 
 issued and marked as a concurrent writ with one for See" 
 
276 
 
 COMMENCEMENT OF ACTIONS. 
 
 
 
 Rule 238. Bervice, or whereof notice in lieu of service is to be given, 
 without"* out of the jurisdiction ; and a writ for service, or whereof 
 diction!" notice in lieu of service is to be given, out of the juris- 
 diction, may be issued and marked as a concurrent wit 
 with one for service within the jurisdiction. J. A. 
 Rule 28. 
 
 C-CJjA t,ii 
 
 
 Identical with tlie Eng. R. 1875, O. G, r. 2, (1883, K. 41,) and corrcspontisiii 
 substance with R. S. t). c. .50, s. .52 : nee lieililiiiijtiiu v. /ii'ili/iiii/tmi, sujuv, 
 
 I ,.t~ le/ii "t^ti^ <f'oti<Y'^i A coiicuri-ent writ may he issued after the original writ has been issm-d, ami 
 ttdtc 1*/ txt /i^f.^'f "■'t^f^^Sh there is only one defendant, jind for service abroiul altliougli the 
 -y. ■ / • */^*j^ / /original writ is for service within the jurisdiction: SmalhMKje v. Ymmt.Yi 
 
 '"^ ^ vv^^ ^' "^''' Where a defendant whose domicile was witliin the jurisdiction was served 
 A ^^V /^irii<r '7/'tf<i<'»broad with a writ in the fonn for service within tlie Province, on an applica- 
 
 - * jJ^ J ''/ . ,,^^ turn to set iwide the service for irregularity, leave was granted to issiii' hioii- 
 
 ^-'^ /rt A » ^'''*'< '^""J^/'o ^/((c, a concurrent writ for service abroad, and the co))ies served, wpn- 
 
 
 We\^il 0* i^e <z'^-^ 'i'" ''directed to be amended to cimform to the concurrent writ : Mflmlf s. hiia.\ 
 c^Jt^./.^lc .^. 6P.R.27.5. 
 
 Ah to stibstitutional service within the jurisdiction of writs against defend- 
 ants who are abroad, see notes to Rulv 271. 
 
 Zo^^. 
 
 (ii) licnewal of Writ. 
 
 Currency 
 of writ. 
 
 *ZiiH, No original writ of summons shall be in force for 
 more than twelve months from the day of the date tiiere- 
 of, including the day of such date ; but if any defendant 
 therein named shall not have been served therewith, the 
 plaintiff may, before the expiration of the twelve months, 
 apply to a Judge for leave to serve the writ after, and 
 notwithstanding the lapse of, the said period. 
 
 (a) The Judge, if satisfied that reasonable efforts have 
 been made to serve such defendant, or for other good 
 reason, may order that the service shall be good if made 
 within twelve months from the date of the order ; and so 
 from time to time during the currency of the further period 
 allowed. 
 
 (h) The writ shall in such case be renewed by being 
 marked with the date of the day, month and year of such 
 renewal : such renewal to be so marked by the proper 
 officer, upon delivery to him by the plaintiff or his solici- 
 tor of a memorandum in Form No. 92, in the Appendix. 
 
 (c) In such case the original writ shall be available to 
 prevent the operation of any statute whereby the time for 
 the commencement of the action is limited and for all other 
 purposes, from the date of the original issue of the writ. 
 J. A. Rule 31. 
 
RENEWAL OF WRIT. 
 
 277 
 
 Sec Kiig. K. 1^5, O. 8, r. 1 (1883, R. 45), which provides for the renewal buingp Rule 239. 
 
 niarkwl withast'al. 
 
 This I'lilf intr()(hic(!d an iiniMirtant change. Theretofore the writ, if not 
 served, niiglit, as of right, (hiring its currency, be renewed for six months 
 from the date of renewal, and so on from time to time during the currency 
 of the renewed writ ; so as to keep tlie action alive without service, and 
 thereby defeat the Statute of Limitations for aii indefinite time ; whereas 
 under this I'uh a writ can only be renewed by leave, and if reasonable 
 effortH have been made to serve tlie defendant^ or foi' otlier g(K)d i-eason. 
 TliBft|)|)licatien is mtule ex jnirtf : see Dan. Pr. 32(5, 327 ; Forma 131 Chitty's 
 .\rch. 2211. 
 
 It is only the original writ tnat can Ixi renewed. Wliere, therefore, a writ 
 which had once been renewed was lost, the Court r»'*'used to direct the officer 
 to seal a verified copy : DnviiK v. Uorland, 1 Q. b. ij. 2i50. iScwWe a concurrent 
 writ might have been issued. 
 
 The writ will exi)ire at midnight i)receding the anniversary of its issue : see 
 Fikh V. Walker, 7 V. R. 8. ^. . 
 
 Where a writ was renewed for six months fnun Gth April, 1881, luider the 
 fonner practice and was served on 27th Dec, 1881, it was held that the writ 
 being in force on 22nd Au;z., 1881 (when the iTud. Act. came into force), it was 
 contniiied in force under this Ride for a year, and service was therefore good : 
 MacMcdii V. Beckft, !» P. R. 28!>. 
 
 The twelve months are calendar months (Rule 472) and run from the date of 
 the writ: Rt Jones, Eyre v. Cox, 4« L. J. Chy. 310 ; W. N. 1877, 38 ; and vaca- 
 tion is included : see Rule 484. and Mullin v. Ilonjor, ') Ir. C. L. 475. 
 
 By Rule 485 a Court or Judge may enlarge the time for any proceeding, and 
 although the i)rescribed time nas ela])sed. In Re Jones, Ei/re v. Cox, supra, 
 •lensel, M.R., allowed a writ to be renewed after its i)eriod of currency had 
 expired, the jilaintiff not having lieen able to serve it. But where the Statute 
 of Limitations had in the meantime run, the Queen's Bench Division held that 
 it could not renew the writ : Doyle v. Kaufman, 3 Q. B. D. 7, affirmed in 
 Api)eal, 340. 
 
 Wiiere a writ was taken out in the C. P. Div. so as to save the Statute of 
 Limitations, but not served, and after the period of the Statute had run, but 
 before the expiration of the writ, an administri ion action was commenced in 
 the Chancery Div., it was held that the writ in the C. P. Div. did not keep the 
 debt alive for tlie i)uri)ose of the administration suit : Manhij v. Manhy, 3 Cn. D. 
 
 Wiiere tlie writ hivs expired laefore service, the copy and service of the writ 
 iiiaybe-t-t aside, but not the original writ : Fitch v. Waiker, 7 P. R. 8. 
 
 Where a defendant has been served with an unrenewed writ after the expira- 
 tion of twelve months from the date of its issue, he probably cannot treat it as 
 a nullity, but should apply to set aside the service for irregularity : see Rule 
 «2, and Hemp v. TKrt;r?(/, 11 M. & W. 103; 2 Dowl., N. S. 758. 
 
 339. The production of a writ of summons purporting Evidence 
 to have been renewed in manner aforesaid shall be suffi- '^^ ""*''*'■ 
 cient jirima facie evidence for all purposes of the writ 
 having been so renewed, r^nd of the commencement of the 
 action as of the date of the issue of the writ in manner 
 provided as aforesaid. J. A. Rule 32. 
 
 See Eng. R. 1875, O. 8, r. 2 (1883, R. 40). 
 
 This corresponds in substance with the English C. L. P. Act 1852, s. 13, and 
 w'th R. S. O. 1877, c. 50, s. 28. 
 See Fkhev v. Cnx, 10 L. T. N. S. 3i)7. 
 
 'jia'. ¥i 
 
278 
 
 COMMENCEMENT OF ACTIONS. 
 
 Rules 
 240,241. 
 
 AddreHR of 
 plaintiff 
 and of 
 solicitor. 
 
 
 (iii) Indorsement of Address. 
 
 240. Where a plaintitf sues by a solicitor, the writ of 
 summons or notice in lieu of service of a writ of summons, 
 shall be indorsed with the solicitor's name or firm and 
 place of business, where Wiits, notices, petitions, orders, 
 warrants and other documents, proceedings, and written 
 communications may be left for him. 
 
 (a) Where any such solicitor is only agent of another 
 solicitor, there shall be added to his name or firm and 
 place of business the name or firm and place of business of 
 the principal solicitor. J. A. Kule 18. 
 
 Compare Eng. R. 1875, O. 4, r. 1 (1883, R. 10). 
 
 Where a petition was indorsed by agents only, it was lield to Ik- irregular and 
 was set aside : Mc Scho/es, 34 W. R. .501 ; .54 L. T. N. S. 46(i : see also Wmv. 
 Kemp, 26 Ch. D. 109. 
 
 The English Rule requires also the address of the plaintiff to be indorsed on 
 the summons, and i)rovides, if the solicitor's place of business is more than 
 three miles from Temi)le liar the writ is to be indorsed with anotlier propr 
 place to be called his address for service which shall not be more than three mib 
 from Temple Bar. The Ontario Iii(l<' corresininds with the enactment in the 
 R. S. O. 1877, c. 50, s. 1(5., e.xcept that the latter names place of abode instead 
 of place of business. 
 
 It has been held in Ontario that the plaintiff's address, as well as the solici- 
 tor's address, must be indorsed, as the form of writ No. 1 in tiie Apiiendix so 
 provides and it is m<Mle imiwrative by Bute 231 : Chfim Carlvy Co, v. Roibiir, 
 4 C L. T. .500. A writ not so indorsed mav he set aside as in'e]?iilar; Ik; 
 Shcrwowl V. O'olihiian, 11 P. R. 433 ; see also ^IcCrcudii v. llencnt<ii, !IP. R. 48lt. 
 
 The address of the plaintiff indorsed must bo that of his residence ; Met v. 
 Denbigh, 27 Sol. Jour. G17. 
 
 Where the suit was on behalf of "tho plaintiff and all others the under- 
 writers of a steamship Cid at the time of loss in 1873 " it was held that therv 
 was only one plaintiff, and that his address alone need he given ; the other 
 persons mentioned were not plaintiffs: Leathhv, etc., v. Mc Andrew, W.N. 
 1875, 259 ; 1 Charl. Ch. Ca. .58. 
 
 As to obtaining security for costs where an illusory address is given, see notes 
 to Rule 1245. 
 
 Address of 241. Where a plaintiff sues in person, there shall be 
 ylrson.*^ '° indorsed upon the writ of summons, or notice in lieu of 
 
 service of a writ of summons, his place of residence and 
 
 occupation. 
 
 (a) If his place of residence is more than two miles from 
 the office in which the appearance of defendant is to be 
 entered there shall be indorsed also another proper place, 
 to be called his address for service, which shall not be 
 more than two miles from such office, where writs, notices,, 
 
INDORSEMENT OF ADDRESS. 
 
 279 
 
 petitions, orders, warrants and other documents, proceed- ^^^ 24X 
 ings, and written coramunicat'ons "ot requiring personal 
 service may be left for him. 
 
 (b) If the writ or notice is not so indorsed, or if such 
 address or place be niore than two miles from the office 
 aforesaid, then the opposite party shall be at liberty to 
 proceed by posting up in such office all notices, petitions, 
 orders, warrants and other documents, proceedings and 
 written communications requiring service. J. A. Rule 19. 
 
 The Eiiglinh Rule of 1875, O. 4, r. 2 (1883, R. 20), names thrius miles fn)m 
 Temple Bar, inste.ul of two from the issuiiig' office. The words " not reciuiring 
 personal service " are not contained, thongli they are of course implied, in the 
 EnKlish Rule. The clause (h) is not in the English Rule, but correHponds 
 with the practice of the Courts : Arch, jiractice, i». 17(i, 13th ed. Tlie C. L. P. 
 Act, R. S. (). 1877, c. .50, s. 17, requiri^d only that tlie iilaintiff suing in iwrson 
 should mention the city, town, incorporated or other village or townsriip in 
 which he resided. 
 
 Tiie i)resent Rule corresnonds nearly with the Reg. Gen. Trin. Term, 1856, 
 No. 138 (taken from English Rule 1()() of Hil. T., 1853), except that, instead of 
 the infomiation beijig indorsed (m the writ that Rule required a meniorandmn 
 t(i be left witii the Clerk or Deputy Clerk of the Crown u\Km issuing tlie writ. 
 The Chancery Practice was governed by Chy. Order 44, and required the 
 likintiff, if suing in person, to indorse on his bill his name and jjlace of resi- 
 dence ; and also, when his i)lace of residence was more than three miles from 
 the office, wlua'e tlie bill was filed, another proiKir place (to lie called his address 
 for service) not more than three miles fnjm tht; sain office, where writs, notices, 
 warrants, and other documents, proceedings and written communications 
 might be left for him. 
 
 Xoone but a solicitor or i)laiiitiff in iKjrson may issue a writ. Where a 
 |»'rson not a solicitor, but puriwrting to l)e next friend of a married woman 
 issued a writ, the writ and all subsequent proceedings were set aside : Swanii v. 
 Nw«n, 43 L. T. N. S. .'530; 25 Sol. Jour. 134. 
 
 As to sufficiency of address see Smith v, Dobbin, 3 l']x. D. 338. As to what 
 retainer of a solicitor authoriises him to issue a writ: see Wrui/ \. Kemp, 2(! 
 Ch. D. 169. 
 
 2I9. Indorsements similar to those mentioned in the indorse- 
 two next preceding Rules shall also be made upon evfiy othor''pro- 
 writ sued out and upon every document by which proceed- '=«e'*'««8. 
 ings are commenced in cases where proceedings are 
 commenced otherwise than by writ of summons. See Chy. 
 0.40, 41 ; R. S. 0. 1877, c. 50, ss. 30, 31. 
 
 The indorsement of the jilace of business was by the terms of Chy. O. 41, 
 unly necessary on the first writ sued out, or proceeding filed : Redman v. 
 mimmmhf, (J P. R. 83, and an olijection to the want of the indorsement. 
 required to be supiK)rted by pniof that it is the first i)roceeding filed, or sued 
 '■ut. Which has been served on the i)arty taking the objection : (huison v. Finch, 
 
 V .y' '-'h 2i)() ; but the name of the party or solicitor (r.nd of the principal 
 solicitor wlien the proceeding is taken by an agent) was formerly required to 
 *. '"oot^tl on every i)roceeding issued or filed: Ciiates v. Kdmnngon, 2 
 •-iiy. Ch. 439. This practice it seems desirable to follow for its manifest 
 tiMvenience, Although it is not clear that it is now compulsory to do so. The 
 
w ■ 
 
 280 
 
 COMMENCEMENT OF ACTIONS. 
 
 Rule 243. (MiiiHHioii of th(* indoi'Henicnt did not iiiakt- tlic iimcccding voir], Init entitled 
 tile oppoHitf i)ai'ty to a stay of pnKM't'dingH until it was NUpidicd ; /v/ip \. 
 Wi'hh, 2 Ha. .511 ; a demand of a copy of a i>l<'adin(,' miik licld to lie » waivii 
 of tho ol)j« 2tion that it \va.s not indorsed an refpiired .■ Ilninill \, O'Miwv 
 2 Chy. Ch. 107. 
 
 (iv) Indorsement of Claim. 
 
 TndorHements under /{ii/i'.s 224, 240, are compulsory, as also are tiiosc under 
 /{I'/cs 248, 24!( in tlie case.s therein pi-ovided foi'. I ndorsemeiits under Jtnlea 245, 
 247 are oiitional. 
 
 6 ■ < »S i 'I 
 
 Precise 
 statement 
 not es- 
 sential. 
 
 Lu pendens. 
 
 343* In the indorsement required by Rule 224, it aliall 
 no^^ be essential to set forth the precise frround of 
 complaint, or the precise remedy or relief to which the 
 plaintiff considers himself entitled. J. A. Eule 11. 
 
 Identical with Eng. R. 1875, (). 3, r. 2, (1883, R. 12). The ohject of the 
 indorsement is to identify the claim to which the action relates ; one advantage 
 of this being to facilitate a settlement without the action goiiiR' further. In 
 some cases the indorsement will take the place of pleading : see Rulcii 370, W. 
 etc. 
 
 Eng. Order 3, r. 1, requires that an indorsement of claim shall l* made 
 on every writ of summons before it is issued. That Rn/c has not been adopted 
 in Ontario, but Jiii/e 234 provides that the i>laintifT shall leave with the officer 
 who issues the writ a coj»y of the writ with all the indorsements. 
 
 Though the i>laintiff 's precise gnjund of complaint, or the precise remedy 
 or relief claimed, need not be set forth under tiiis Rii/r, still a claim for an 
 injunction or receiver should be indorsed where the obtaining of either is a 
 substantial object of the action : .see notes to Rn/*' 224, and ('(iMmuaie v. Ciili'- 
 bourne, there cited. As to amendment of the indorsement on the writ ; see 
 notes to Ride 444. 
 
 Where a plaintiff seeks to enforce a claim against the sei)arate estate of a 
 married woman the writ should be indorsed with a claim for that relief. 
 Where the husband is sued as tnistee of se^)arate estate of liis wife as wella.* 
 in his [personal caj)acity, the claim against him as such trustee siiould be made 
 expressly in the indorsement : Itixnn v, Ihnujan, 8 L. R. Ir. 211. 
 
 Where the plaintiff desires to register a certificate of lis mndm, the 
 indorsement on the writ of smnmons should contain a short description of 
 the property, sufficient to identify it for the puriM)se of registration : see note 
 to l" omi No. !). Where the writ is issued by the Process Clerk, tlie Refistrar 
 of the Division in the tj. B. & C. V. D!, and the Clerk of R. & W. in 
 Chy. Div., and in other cases, the officer who issues the writ will iMe 
 the certificate of Us jx-ndens, in the manner provided in R. S. (). c. 114, 8. 47, 
 48. Where a lis itendens is required the plaintiff should Vh' more precise tliaii 
 in ordinary cases and should by the indorsement define generally tiie gnnnid* 
 of his claim to an interest in the land : Shfpjxird v. Kvnnedij, l(t P. R. 242. 
 
 Where the title to land is not in (piestion m the action, ''.,'/•, i" an alimony 
 suit : White v. While, P. R. 2(»8 ; Vnnidell v. t'mndell, 20 C. L. J. 32!t: 4 
 C. L. T. 50<) ; it is improjier to issue a //,'* jienileiis ; and if tiiis apijearn from 
 the indorsement on the writ, the registiation may lie vacated on iiioticm liefnre 
 the Master in Chambeis : Sheppurd v. Ke)iiie.di/,'supiii. If the suit (isteiwiWy 
 brings the title to land in question, but is an illusory suit brought in order 
 to register a //.vw'«(/''H.t, the action may be dismissed on an admission by tiie 
 j)laintiff, as to the real nature of the suit ; but otherwise it must lie disiiosed iit 
 in the regular way. If there is not such an iuiniission but affidavitH clearlv 
 shew the nature of the suit, the Master may refer the matter to a .Tiidge an" 
 an order may be made by a .fudge directing a speedy trial : see Juiiieiiiiii v 
 Laing, 7 P. R. 404 ; Shepimrd v. heiinedi/. supm. 
 
 As to the effect 
 
INDORSKMENT OF CLAIM. 
 
 281 
 
 When', liowi'vcr, tlu' motion is to vacatu tiie rcgiHtratioii of the /i'k /h'ikIi'us Rules 
 lx>uauHe tlic ri'iiuHly against tliu land in un'u apin'opriatt! to the uauso of action 244, 240. 
 which is iK'iKling, tlinn tin? Miwter in ClianilHTs may finally dinpoHt' of tlic 
 matter witlioiit referring it to a Judge : S/ir/i/xdi/. v. Ki'iinedi/, .iii/)rii. Timn, 
 u iiiaiiititf may not register a //v /;('/i'/'7(.v nierely to prevent a defendant from 
 alienatint; land wliicli would !«• liable to satinf^y the .ju<lgiueiit if th(^ plaintiff 
 shmilil succeed in the action. An action for that purpose will not lie, and the 
 ivgistratioii of a certificate of fix j>riii/i'ii.i may be vacated on motion : W'vstlnh 
 \: Briiii^ii, Kefer»'e in Cliamb' ■ ', 5 June, 1H7H : see jVewtmi v. Xi'irtmi, and 
 Xntidiiiil I'liiiiiitiid liii.itk '• nas; sn/jni, u. oo; also H'/iite v. White, kujuu. ; 
 
 Ikfibiini V. /'(itliiii, 20 (ir. ."' j.Cti/iiiini>n v. rirkaiiiif, 50 L. J. Chy. .527. 
 
 Wiiere a //■< jinii/rii.i is issued, a defendant is entitled to appear i/niti.^ and 
 anticipate tlie service >ipon him of actually issued process, so as to compel the 
 plftiiitiff to proceed promptly: MrTai/ijiir/ v. 7V/()<Ac, 20 C. L. J. 175 ; I'uii/fnii 
 V. /.-r, 7 P. H. 41.5. 
 
 WiuTe a //.v/"'»'/'"/(.v is i)ro|H'rly issued and registered it cannot Iw vacated 
 jH'iuliiiK the action : Fo.sti'r v. Mtmre, 11 P. H. 447, a case of fraudulent convey- 
 
 aiur. 
 
 The registration of a certificate of an order dismissing the action is a 
 sufficient discharge of a /is jirndenx : Tedfiinl. v. Te.dfwd, 7 C. L. T. 140 ; 
 <l,-iih(ini v. (VidlmcrK, 2 Chy. Ch. .53. 
 
 .\s to the effect ot 'i /is pendens, see I'ria; v. Price, 35 Ch. D. 2{)7. 
 
 244. The indort;ement of claim may be to the effect ofi'onnofin- 
 8uch of the forms in Part II. of the Appendix hereto as "'■***""^" • 
 shall be applicable to the case, or if none be found appli- 
 cable then of such other similarlj' concise form as the 
 
 nature of the case may require. J. A. Kule 12. 
 
 Identical with Eng. R. 1875, O. 3, r. 3 (1883, R. 13). 
 
 245. In all actions where the plaintiff seeks only to Debt or 
 recover a debt or liquidated demand in money payable by liemand?'* 
 the defendant, with or withmit interest, arising (a) upon a 
 contract, express or impliedj^as, for instance, on a bill of 
 exchange, promissory note, or cheque, or other simple con- 
 tract debt) ; or {h) on a bond or contract under seal for pay- 
 ment of a liquidated amount of money ; or (c) on a statute 
 
 where the sum sought to be recovered is a fixed sum of 
 money or in the nature of a debt other than a penalty ; or 
 (d) on a guaranty, whether under seal or not, where the 
 claim against the principal is in respect of a debt or liqui- 
 dated demand only ; or (e) on a trust ; or (/) in actions 
 for the recovery of land, with or without a claim for rent 
 or mesne profits, by a landlord against a tenant whose term 
 has expired or has been duly determined by notice to quit, 
 or against persons claiming under such tenant ^the writ of 
 summons may, at the option of the plaintiff, be specially 
 indorsed with a statement of his claim, or of the remedy or 
 relief to which he claims to be entitled. Such special 
 
 Dt'tfl 
 
mm 
 
 282 
 
 COMMENCEMENT OF ACTIONS. 
 
 Special in- 
 (Idrseineiit 
 of money 
 demand. 
 
 Rule 248. indorsement shall be to the effect of such of the Forms in 
 sec. IV., of Part II. of the Appendix as shall be applicable 
 to the case. Eng. R. 1883. 
 
 (2) Where a writ has been so indorsed the indorsement 
 shall be considered as particulars of demand, and nofurtlur 
 or other particulars need be delivered unless ordered by tl:e 
 Court or a Judge. K. S. 0. 1877, c. 50, i.. 19. 
 
 ThisKiilc is adopt.'d from Kii^. \i. (1HS3) O. 3, r. (i. it (Iocm not ditfir 
 siih.stantiiilly from tlic ori{,Mn!il Ont. J. A., Hide 14 (taken from V.u^. \{,, V.<'\ 
 (). .3, r. (i), except tluit claiiKc (/) is new. A special indorsement in an acti'iii 
 to recover land so as t(i enal)le tli(! )>laintiflf to move for j\idj,nnent suimimrily. 
 iiotwithstandinf,'' appearance was not previously allowed. 
 
 Special Indorsement- .1/o/MV/ OfmniK/n.—ClimHm {a) to (r) siil)stiHitiallv 
 corresiMHid with s. lil of the O. L. V. Act, R. S. ()., 1H77, c. 50, Imt (liffer in 
 two ])oints : First, tlie /liilc in<!hides the case of a li(Miidated snm pavalilc en it 
 trust, which tlie former section did not ; Secondly, there are no words in tlic 
 Jlnlc, as there were in the section, limitin;,' its oi)eration to cases in whicli tiii' 
 defendant resides within tlie jurisdiction. It will be observed that the use of 
 this indorsement is o])tional ; but if used it will entitle tiie plaintiff tci final 
 judgment in case of default of a])i)<'arance, and even notwithstanding apiH-iii- 
 ance, mdess the defendant can satisfy a .Tudge that he has a defence or ought 
 to l)e, allowed to defend : se(^ JiitU; 73it. 
 
 For forms of special indorsement see Apjiendix A. No. 7. Such forms must 
 be sulistantially followed to entitle plaintiff to sign judgment under Kitlfn 7"5 
 or 730, but a merely fonnal difference will not prejudice : pa' Archil)al(i, .1., 
 Anon, W. N. 187(),'r)3. 
 
 Where a writ had Ix^en served before the commencement of tlit> Act it was 
 held that then^ could be no indorsement under this Jiii/r, so as to enal)le the 
 |ilaintiff to sign judgment under /(itlc 73!) : Anon, 1 Cliarl. Ch. Ca. 4."). There 
 are, howe>'er, two decisions to the contrary ; see W. N. lH~i>, 2(1(1 ; 1 (Jliarl. Ch. 
 Ca. 4i» ; and W. N. 187(i, 12 ; 1 Cliarl. Cli. Ca. .55, and notes to JUdc 73!l. 
 
 As the object of the special indorsement is to give the defendant an oppur- 
 timity of avoiding further ))roceediiig8 by payment of the debt, .as well as ti> 
 entitle the jilaintin to a summary remedy, the indorsement must give sufficient 
 j)articularH to enable the defendant to satisfy his mind as to whether lie onpht 
 to pay, or resist : U'nlkiT v. Hicks, 3 il. B. D. 8 ; and if it gives sufficiently speci- 
 fied particulars to bring to the mind of the defendant knowledge as to what tlie 
 plaintiff's claim is, it is a good special indorsement : Biekrrx v. KyeighU tl 
 Q. B. D. 7. In Anon,y^. N. 1875, p. 220, Lush, J., said that it could net Ix' 
 intended that a list of items, extending ])erha])s over three or four years, sh(nil(l 
 be indors(?d im tin; writ. In an action for the |)rice of grnxls sold, the dates 
 and amounts of consignmeTits weni held necessary : Parpaitc v. hickiiiiim, 3,S 
 L. T. N. S. 178 ; 2(> W. K. 47!». 
 
 A claim" for arrears of alimony, and alimony pfn>/fnte lite, is not a claim fur 
 " a debt or li(piidatod demand in money " within this Itnle : Bdllfi/v. Iiaik.% 
 13 Q. B. D. 855. Neither is a claim for quarterly ))ayments of an annuity 
 secured by a bond for £5()() : Tiithcv v. rarahimpi, 21 Q. B. D. 414 ; nor a claim 
 for a sum in disjmte and i-ecjuiring assessment or valuation, as a claim by lessor 
 against lessee for amount of dilapidation to premises leased : ('/<idr\. Iknjtr, 
 36 W. R. 80i). 
 
 The following indorsements have been held insufficient : 
 
 (1) " The plaintiff's claim is £3!t!t Jt.f. Id., the defendant's share or contrihu- 
 tion to the payment of certain bills of exchange and jiromissory notes in which 
 he and the plaintiffs were jointly liable, and which bills and notes have lieen 
 taken up by the plaintiffs : Wtdlvr v. IlivL'i, 3 (I. B. I). 8. 
 
 Insuffi- 
 cient in- 
 dorsenient 
 
 (2) "Tile plain 
 
 Vr. 
 
 March 
 
 8 
 
 
 April 
 May 
 
 23 
 29 
 23 
 
 and i'2 l.'w. 
 
 'or CO 
 
INDORSEMENT OF CLAIM. 
 
 288 
 
 (2) "The iilaintiff'H claim \» t'3!M» !)*i. 7<l., In'iiip Kf!Vt<i>ty-fivo iK>r wnt. (if the Rule MB. 
 invoice price of b'cmkIn Hiipiiliod by tli(! jiliuutitf to the (lefciuliint luidrT an 
 agreement " (giving itw divtc iind nuture). 
 
 "The plaintiffs also claim to recover from the defendants the following hilli* 
 (if exchange, drawn l)y the plaintiffs and payalile to the order of the defeiid- 
 Hiiti, being l)illM drawn for the price; of goodH Hiip|)1ied liy the nlaintiffs to the 
 (Iffeiuliuits as aforesaid." A list of hills was then set out in tiie indorsement 
 giving tlii'ir dates and amounts : /'iti/iailf v. hirliinxnii, siqiid. 
 
 (3) The plaintiff's claim is for .*i42().37, l>alance of work, etc., less credits as 
 agreed upon. The plaintiff claims interest U\ 8120.37 until judgment: VUz- 
 ximiiiniis \. ir//,s(./(, 4 C. L. T. !)l. 
 
 (4) An indorsement claiming an injunction restraining the sale of mortgaged 
 chattels, damages and jiayment of 4)1, (MMl alleged to lie in defendant's hands : 
 ymlmaii. v. ,*>'"<./'•, 2H W. 1{. .574 ; 42 L. 'I\ N. H. .')02 ; see also Fc/I v. Williiimx, 
 3C.L. T. 3r)H ; ,St<iii<l<in/ Hank v. Willx, lOl*. K. loll ; Mrdidlnm v. Md'allum, 
 11 K K. 1(> ; xal vklc HnO'mati v. JJiniit; 12 P. J{. 4!t2 ; Hoi/ v. JohmUm, lit. ;V.h;. 
 
 See also l.ucds v. Hiisx, in note to Rul< 73i( ; Klh/dfi/l' v. Mfitmuc in note to 
 Rule 707, and Rob. k .los. Dig. 2H77. 
 
 The following have been held sufficient : Indorso- 
 
 (1) "The plaintiff's claim is .4,'3(i5.v. for balance of go(Mls sold. "' A nun, W. X. Hufllcient. 
 W7"), 220 (see snjna) ; 1 Charl. Ch. Ca. 44. See, however, /'(trjinili- v. 
 Itkkiii.iim, sn/ini, as to effect of absence of dates. 
 
 (2) "The plaintiff's claim is £4!) iw. 8(^. ; the following are the iiarticulars : 
 
 £ s. ,/. 
 
 1870. Feb. 14 To goods K; 1 
 
 1.5 ])o 4 13 (i 
 
 etc. etc. etc. 
 
 May 21 Brit. Com. 
 
 Bank draft returned 20 
 
 Notary charges on same 1 (i 
 
 £9!) 8 
 Cr. March K By Brit. Com. £ .f. d. 
 
 Bank draft J) 15 
 
 April 23 By Cash 10 
 
 2!) By Brit. Com 20 
 
 May 23 By Cash 10 
 
 4!) 15 
 
 £49 5 8 
 and €2m«. for costs" : Smith v. Wih^m, 4 C. P. D. 392; 5 C. P. D. 23. 
 
 (3) "The ))laintiff's claim is for £11(5 O,*. lOd., being the balance duo to him 
 fpnm the defendant, for moneys paid at the said defendant's request, and on 
 iiis lielialf for the purchase of certain stocks and shares, lietween the 3rd June, 
 1879, and tlie 31st August, 187!>, an account of which has l)een rendered and 
 exceeds three folios" : AhIUoh v. Hnrwitz, W. N. 1879, 194. The ground of 
 the decision was that such an indorsement would have been sufficient under 
 C. L. P. Act : se«» R. S. 0. 1877, c. 50, s. 19, and the schedule where the form given 
 states that an account previously delivered may be referred to by its date : 
 nee nickers v. Speiy/U, 22 (-2. B. D. 7. 
 
 (4) "The iilaintiff 's claim is £130 due him from the defendant, under an assign- 
 ment, under the hand of one M. J., and datefl July 14, 1888 ; particulars whereof 
 iire as follows ; I do hereby authorize and request you to pay ta Mr. E. Bickers, 
 III, etc., the sum of £130,'being the amount due or to become due from you to 
 me, as ajiiiears by an I. O. U. signed by you, and dated Feb. 4, 188.5, and bin 
 Wieipt for tlie same shall be a gocxl discharge " : /iickem v. Spciyht, 22 C^. 
 B. D. 7. 
 
284 
 
 COMMENORMKNT OF ACl'IONS. 
 
 Rule 246. Ci) "Till' |i|iiintitrs (^hiim .S'J.OIHI Ix'in^ tli*' iiiiioiint of tlir (Icfi'iidaiit'Huvt'r- 
 (li'iiwii iici.'oiiiit with tlif pliiintitfH' Imiik <>ii tlin IHtli H«'|it('liil)fr, IH,S2": Imji. 
 Jliiiil,- V. liiilliiK, i) I*. H. 1*74. .\ Hiiiiiliir iiHlorHciiii'iit nniittiii^f tin- (l.itc of tnn 
 (ivi-rdraft wa.s held in.siitficioit : Oii/mid limik- v. Iiiii'l,\ ](» J'. H. (iJH. 
 
 i« 
 
 Hpucial i:i- 
 (lorsoiiKUit 
 ill actions 
 to rucover 
 lanrl. 
 
 I 'J-.! I r 
 
 .1. Hulls til ivriiirr liiiiil. Tilt' |M)wt'r to M|K<ciall,v indorHc a writ in mi lu^tion 
 fur tlic rt'cnvcry "f Imi'l ix iifw, and apiilics only in certain cases lictwicii jund 
 lord and tenant. Tlic Ituli' is unly intnidi'd to iniiliidc .simiilc oiini^s, wIktc the 
 laii(lli)rd is liinisdf a party to tlic oontrac^t nnder wliicli the tt'nant IioIiIn, or 
 wlifrc tiicrc lias hecn a iiaynifnt of rent liy dcfcmlant to plaintiff, or ilcfcnilimt 
 is otlifrwisf ^stopped troiii di'nyinvr plaintiff's titli'. It has, tlicri'fori', U'mi 
 
 lifld not to apply where the jdaintiff is the assijfiiee or devisi f the original 
 
 lessor: ('^.vc.v v. llrlhifi', 1" <^ H. I). !»7 ; and where tiie term 1ms neitlicr 
 expired nor lieen determined liy notice to (init, '•.,'/., where the plaintiff I'liuiiiii 
 to re-enter for a forfeitnrr : liinus v. Wiiff'iiii/, \V. N. 1M84, 31 ; MniiKiuyh v. 
 /tliiirl/. III. 'M. See l''iinii' v. S/idW, HO W. K. '2'M\. 
 
 Where the relationship of landlord and tenant is created between iiKirtKajjw 
 and mortga^'or oy the mortffaij'e deed, the Jii'/r will apply if the teimiicy 
 e.xpires or is di terniined by notice to quit : Itiiiiliir; v. Liiriniiluii, IH (^. ij, lj. 
 .147 ; //"// V. Ciimfiiii, IS (^. H. I). 11, lint not if it is provided that tiie nuirt- 
 ffajfee may enter as niortgaKee ; Hulismi v, Mmih, W. N. 1HS4, 17. 
 
 I'articularB Particulars. -In an anonymous case, before (juain, .)., at C!hanitierH, L. T. 
 
 flf claim. 4th Decendn'r, l«7ri ; 1 Oliarl. f.'li. Ca. 85 and Rokh v, iiHiIik, W. N. IS""), 23«; 
 1 Charl. Ch. f'a. 3f>, it was ]iresnmed that, under the .rudiciitnre Act, luirticu- 
 lars of claim would Ik- unnecessary, as the statement of claim or the indorse- 
 ment on the writ should ifive full particulars. This view 1ms not, however, 
 l)revaile(l : see Bin-k',- v. Wnml, W. N. 1H7<», oti ; 2 Charl. Ch. Cn. 15, wheiv 
 Archibald, .1., made an order for particulars, sayinif, " I can se<^ ffevi\i con- 
 veniencie in allowiuff particulars liefore tlm statement of claim, as the defendant 
 may withdraw." Where the plaintiff, as a claim, gave notice that the particu- 
 lars were those indorsed on the writ, Lindley, .1., miKle an order for additional 
 particulars : (''ittmi v. Hiiiixi-iiiaii. W. N. lH7ti, 22; 2 Charl. Ch. Ca. Uti. The 
 form of a]i[)licati(in in such case would seem to lie, not for particulars, hut for a 
 further statement of claim : SfhnmliiTij v. Xui'licUi, W. N. IH'O, 10(J ; 2 Charl. 
 Ch. Ca. m. 
 
 When; the idaintiff's claim was not a mere'y legal demand for an ascertained 
 sum but an equitable claim which if successful would only lead to an account 
 lieing taken, and i)articulars were not necessary to enable defiaidant to frame 
 liis defence, the plaintiff was not ordered to furnish them ; Ani/iiKtiiutu v. 
 Ni'rinvk.i-y 1(J Ch. D. 1(». liut it is established in England that if it is not an 
 account merely that the plaintiff asks but a definite sum is claimed, the iilaintiff 
 nuiHt state what his case is in detail, either in the pleadings or by wavof parti- 
 culars : nii'ckii- v. OsiiKiMm, 28 Ch. 1). lli». 
 
 Where the defendant required particulars of a H\nn for which crcflit was 
 given by the claim, in order to enable him to frame his .set-off or couiiter-claiiii, 
 lie was held entitled to receive them : (I'lu/i/ra v. i'liivlcn, 5 C. V. I ). 17 ; W. N. 
 187!t, 1!K). 
 
 Particulars will not 1m' ordered as a matter of course in money causes. When 
 they can be indorsed or stated in the claim they ought to Iks bo ; pir Lush, .1., 
 Aii'iiii., W. N. 187.5, 202 ; 1 Charl. Ch. Ca. .3.5. " If, therefore, snfticiriit -larticu- 
 lars are not indorsed, the costs of an application to obtain them should be 
 iKirne by the plaintiff. 
 
 Particulars should not be ordered to be furnished in an action of seductiun; 
 Turner v. Kj/b; 2 C:. L. T. 311. 
 S(^e further as to particulars the notes to Hide 3!)y. 
 As to particulars of connter-claims see notes to Uiile 373. 
 
 Inrlorse- 
 ment in 
 «ases of 
 
 344S. "Where the plaintiffs claim is for a debt or liqui- 
 dated demand only, ths indorsement, besides stating the 
 
INDORHEMKNT OK CLAIM. 
 
 285 
 
 nature of the claim, shall state the amount claimed forRuiea 
 debt, or in respect of such demand, and for costs, rcspt-c- ' 
 tiyeiy, and shall further state that upon payment thereof li'n'iidatod 
 within eight days after service, or, in case of a writ not for ''"""""'• 
 service within the jurisdiction, within the time allowed for 
 appearance, further proceedings will he stayed. Such 
 statement may he m the form in the Appendix Part II., 
 sec. TI. The defendant may, notwithstanding such pay- 
 ment, have the costs taxed, and if more than one-sixth 
 shall be disallowed, the plaintiff's solicitor shall pay the 
 coets of taxation. J. A. Kule 15. 
 
 TliiH is the Hiiiiic Its Kn^. R. IHT'i, (). ',i, r. 7, (IHHH, R. 17), exc«i»t that the 
 latter imiiifH fdiir (liiys ; mid is t(i thi! Miimo ctfect an section IK of trio C. L. P. 
 Act(K. S. (). 1M77, <•. ">0). 
 
 The iii(lorHciii('iit iinist stati' flfiirly wlmt is (lci)t and what costs : Triinlmr v. 
 Wliilcrliiiirli, H |)o\vl., 1'. C. 8H7 ; and wiicn intcrt'st is chtiined the iiiiiount and 
 the iK'i'ii ' frimi wiiicli chiinicd should lie y;'nt'}\ : liinilill v. Miller, 7 C. IJ. 75.3. 
 
 Tiic use of this indoi'scnicnt, it will he ohserved, is oiiligatory. The effect 
 iif it is to entitle the <lefcndaiit to settle the claim l)y |)aynient within eight 
 (lavs ; the |iliiiiititt' is not hound hy it for any other imrpose : .luaiimt v. Hninit, 
 5il. & W. 155, 15<;. 
 
 Wlicre the defendant paid the anioiint, hut not within the four days, he was 
 nevci'tlrcle.ss held entitled to have the costs taxed under the last clause of this 
 liuU; as tlie plaintitf, liy accepting the amount indorsed, was considered to 
 liavc waived payment within the foiirdays : llmili: v. AV(//i.s7((/(/',3!)L. T. N. .S.40!(. 
 
 247. In all cases of ordinary account, as, for instance, indorse- 
 in the case of a partnership, or executorship, or ordinary ciailn "for 
 trust account, where the plaintiff desires to have an account "•«^'=°"»'- 
 taken in the first instance, the writ of summons shall be 
 indorsed with a claim that such account be taken (a). This 
 Rule does not apply to proceedings under Eules 965 to 988. 
 J. A. Rule If). 
 
 («) T\mRnl, up to this point is the same as Eng. R. 187r) O. 3, r. 8(1883 
 R. W). The proceedings under Itnlcn !JG5 to !)88 are tho«e of summary appli- 
 eatious ftir iuliiiinistration, etc., in which a notice of motion is given, instead of 
 a writ heiiig Issued. 
 
 A claim against an executor for an account on the f(K)ting of wilful defaul*, 
 18 not an "ordinary account," and therefore does not fall within this Rule or 
 mt 745 : /,',■ llmwt, lieiniHt v. Bourn, 20 Ch. I). 538 ; hut see Itr Allan, !t P. R. 
 277, and miinu p. 164. 
 
 See also York v. Stown^, W. N. 1883, 174. 
 
 24.S. Where the claim is for the foreclosure of a mori- indorse, 
 gage or the sale of mortgaged property, and the plaintiff mo'rtVaRe 
 desires an order against a defendant for the immediate *<|j;°'g'^i,„. 
 delivery oi possession, or for immediate payment, the writ mediate 
 must, in addition to the ordinary notice, be indorsed with or p^ynent 
 
 desired. 
 
im 
 
 286 
 
 COMMENCEMENT OF ACTIONS. 
 
 Rules 
 249, 250. 
 
 ludorKt'- 
 nieiit in 
 action of 
 dower. 
 
 a further notice to the effect of such of the forms in the 
 Appendix hereto, Part IL, sec. VI., as are applicable to the 
 case. J. A. Eule 17. 
 
 Tlui iiulorscnieut should I'lwo state concisely the lands in question : Canada 
 Laiidnl Vmlit Cn. v. ('oMa'jhuH, Boyd, C, 2(5 "Oct. 1881. 
 
 This Hide being ai)|)lici.'''i' in the caic of a writ only, does not apply to a 
 counter-claim on a mortgage, and vrt'ders i>,r immediate payT-iei ,t and i)o,sses8ion 
 may l)e granted, though not asked ior si)ecifically by the ccui.U'V-claini : Klein 
 V. I'liidii Fife InsuroHce Co., SOiit. 250. 
 
 The forms are those numbered !(, (d), (e), in the Schi'dule to the Act, This 
 Rule and the forms referred to are not in the English Act. 
 
 2411. In case the plaintiff in an action of dower claims 
 damages for detention of her dower, the indorsement on the 
 writ of summons shall contain a statement that the plaintiff 
 claims damages for the deiention of her dower, from some 
 day to be stated in the notice. See E. S. 0. 1877, c. 55, ss. 
 9, 10. 
 
 When the plaintiff's husband did not die seised of the land out of wliich 
 dower is claimed, no damages for detention are recoverable : Lmee v. Arrivitronj, 
 11 (Jr. 517, even though a demand of dower may have been made by the jJain- 
 tiflf before action : Af organ v. Morgan, 15 Ont. 194. See further as to damages 
 in actions for dower : Wallace v. Moore, 18 Gr. 500 ; Ryan v. Fish, 4 Ont. 335, 
 and notes to Rule 290. 
 
 2. Disclosure by Solicitors and Plaintiffs. 
 
 aut} ty. 
 
 Whether 3SO> Everv soHcitor whose name is [signed to ov 
 
 writ issued . -, ■, •' -^ e iiii j-' 
 
 by iM8 indorsed on any writ of summons shall, on demand m 
 writing made by or on behalf of any defendant who has 
 been served therewith or has appeared thereto, declare 
 fortiiwith in writing whether the writ has been issued by 
 hini or with his authority or privity. 
 
 (//) If he answers in the affirmative, then he shall also, 
 in case the Court or a Judge so directs, disclose in writing 
 within a time to be limited by the Court or Judge, the pro- 
 fession or occupation, and place of abode of the plaintiff, on 
 pain of being guilty of a contempt of the Court from which 
 the writ appears to have issued. 
 
 (/>) If the solicitor declares that the writ was not issued 
 by him or with his authority or privity, all proceedings 
 upon the same shall be stayed, and no further proceedings 
 shall be taken thereupon without leave of the Court or a 
 Judge. J. A. Ilule 29. 
 
 See Eng. R. 1875, O. 7, r. 1, (1883, R. 42.) 
 
DISCLOSURE BY SOLICITORS AND PLAINTIFFS. 
 
 287 
 
 The words in the first line, "signed to or," are not in the English Rule. Rule 2S1. 
 The clause (n) is not in the English Rule, and is taken from the Ontario 
 C. L. V. Act, 1852, s. 7. The clause {h) is the same in the English Rule. 
 
 Where a solicitor with(»ut authority prosecutes or defends an action, the pro- 
 ctvdings are not necessarily void in all cases ; ''.//., an action prosecuted without 
 authority binds the i)laintitf, and his remedy is against the solicitor, he may, 
 however, on getting notice of the pnxieedings, move to stay them : see iii/ra, 
 ,111(1 I'hi.tliiiliii V. S/ieliloii, 1 (Jr. 2!)4. But when a dtifendant has not l)een 
 served with process, aiul an unauthorized apitearance is entered for him, the 
 i)i'uceeili;igs will be set aside on his ajjijlying i)romptly after he has notice of 
 them: Jloissin- v. WrMniohr, 24 C. I'.'DI ; .l/.(.s.sr// \. Hitj)c/</i, o C. J'. 134; 
 Wriylii V. ]Jiill, 2 P. R. 20 ; by delay he may waive his rights : Km- v. J/u/jihk, 
 2F. K. 13r). Ill McLvait v. (inint, 2<) (ir. 1'6, the party was held to be lx)iind by 
 an unauthorised defence to a Chancery suit, though he does not ai)pear to have 
 lieeii served witli the bill. Where a defendant has lieen [lersonally sewed witii 
 imxess, he is bound by an unauthorized a])pearaiice and defence, and the pro- 
 eeeiliiigs will not lie ••et aside unless the plaintiff had notice : see Koisaier v. 
 W'talhnmkv, xiijim ; Mtirioi v.Sdiiincr/wm, 21'. R. 2(>1 ; or unless the solicitor be 
 insolvent : Wadei/ v. Frnjist, 7 C. L. J. 2!»4. 
 
 Where a solicitor has commenced an action in the name of a plaintiff with- 
 <)ut authority, the plaintiff may, on notice to the defendant and the solicitor, 
 move that the action he di;;mis.ied, and that the solicitor pay the costs of the 
 plaintiff as between solicitor and client, and the costs of the defendant as 
 between party and party: Sewbiiii)in-hif-thc-Sea (Ian Cn. v. Armstrinuj, 13 
 Ch, D. 310 ; XH,\se v. hiunfvrd, 13 Ch. D. 7()4 ; Wmy v. Kemp, 2() Ch. D. l()i>. 
 
 Any rule of practice that an action brought without the authority of the plain- 
 tiff can be dismissed, on application of tlie plaintiff, only on j)ayment of costs, is 
 nut now in force. He may now have the action stayed without payment of 
 costs ; ilcKaji v. Marfarlane, 12 P. R. 149. 
 
 After judgment, an action for the benefit of creditorH should not be dismissed : 
 
 lb. 
 
 251. Where a writ is sued out by partners in the name Names and 
 of their firm, the plaintiffs or their soHcitor, shall, onSf mem^^ 
 demand in writing by or on behalf of any defendant, declare suing a"™ 
 forthwith in writing the I'ames and places of residence of I'a'"^'"^*"^- 
 all the persons constituting the firm. 
 
 (rt) If the plaintiffs or their solicitors fail to comply with 
 such demand, all proceedings in the action may, upon an 
 application for that purpose, be stayed upon such terms as 
 the Court or a Judge may direct. 
 
 (I*) Where the names of the partners are so declared, the 
 action shall proceed in the same manner, and the same 
 consequences in all respects shall follow, as if they had 
 been named as the plaintiffs in the writ ; but all proceed- 
 ings shall, nevertheless, continue in the name of the firm. 
 I A. Rule 30. 
 
 ThJH Rule is the same as Eng. R. 1875, O. 7, r. 2, (1883, R. 43). 
 
 Bv Rnl( 317, niiy ])arty to an action, in which partners either sue or are sued 
 "I ^^ "'"^ine of tiieir firm, inay apply by summons for a statement of the names 
 "'the partners, to lie furnished in such manner, and verified on oath or other- 
 wise, a« may be ordered. 
 

 288 
 
 COMMENCEMENT OF ACTIONS. 
 
 Rules 
 202,263. 
 
 3. Skrvice of Writ of Summons. 
 
 (i) Mode of Service. 
 
 In «« Pi'/^po; Pinprr v. P<'pt)fr, 50 L. T. N. S. 580 ; 53 L. J. Cliy. 1054; 32 
 W. R. 705, it was held that the Rules an to service ap])ly to iiii (iriginiitinj? 
 iiininioiiH as well as to writs of suniinons. 
 
 uudertak- 353. No service of a writ of summons or other docu- 
 acc.jpt ser- ment by which an action or proceeding; may be comnience.l 
 ^""'- shall be required where the defendant by his solicitor 
 
 accepts service, and i undertakes to appear thereto . J. A. 
 
 Rule 33. Chy. 0. 47. 
 
 The English Rule 1875, (). !», r. 1 ; (1883, K. 48), has the words "I'liti^ 
 an appearance " insteiul of the words in brackets. 
 
 A solicitor failing to ai>pear according to his nndertaking renders liiiiiself 
 liable to an attachment : .see I'ulr 283 ; but the plaintiff may also pniccwi 
 against defendant as upf)n default of appearance. He takes tlie risk, however, 
 of the solicitor not having had authority to accept .service : I'nis.iit'r v. W'lxl- 
 hroiikc, "24 Q. P. 91 ; and it wotUd therefore lie proi)er to serve any siiliswinwit 
 proceedings uixm the defendant iiersonally. 
 
 Personal 
 and sub- 
 stituted 
 Hervico 
 
 35*S. Where service is required, the writ of summoiifi 
 may be served in any County in Ontario and the service 
 thereof, whenever practicable, shall be personal; but if it 
 be made to appear to the Court or Judge on affidavit tint 
 the plaintiff is from any cause unable to effect promi.t 
 personal service, the Court or Judge may make such order 
 for substituted or other service, or for the substitution ;for 
 service of notice by advertisement or otherwiscj , as may 
 seem just. R. S. 0. 1877, c. 50, s. 20; c. 55, s. 11. J. A. 
 Rule 34. 
 
 See Kng. 1!. 187.\ O. !», r. 2 (1883, R. 4!t), U,. (). 10. 
 
 Instead of the words in brackets the original RuU: ha<l (following the Kiifc'. 
 
 R. 1875), the words "of notice for service.' 
 the Kng. R. of 1883. 
 
 The present language follows that (if 
 
 Under U.K. The modes of service previously to Ont. J. .A.. 1881, iiad not lK'en_the same 
 
 O. 1877, c. in Chancery and in -a ConimoTi Law action : see Chy. (ien. Orders, 87, '^ ff<h 
 
 .W.and Chy. and Rev. Stat. 1877, c. 40, ss. !l2-<,t4, and Rev. Stat. 1877, e. .50, ss. 20-24. Under 
 
 ^'^^^- section 20 of the C. I.. P. Act (Rev. Stat. c. 50), service of the writ was 
 
 i-ecpiin'd to be personal wherever priu3ticable, ancl therefore leaving a copy with 
 
 a female servant at the hnlging of defendant has l)een lield not to !)•* P*" 
 
 service: Priciv. Thoviitx, 11 C. 1$. .543; though if the service were shewn to 
 
 have come to the knowledge of defendant, leave to proceed iniglit bt-trantoi. 
 
 The abov(^ service, if of a bill in Chancery, would probably have been lieW 
 
 stifficient under Chy. (ien. Order 87: .see" AV//"^ v. B((irtl,'2 Chy. Ch. I^J). 
 
 VVher*', however, the service had not lieen |K'rn(>nal, notice of motion to take 
 
 the bill pio coiijfrnKo, wa.s rwpiired to be .served |)ersonally, or a.s tiie Court 
 
 might direct: see Chy. Order 107 and 108. 
 
 See notes to Hule 2(i0, as to service of corfiorfitionR. 
 
MODE OF SERVICE. 
 
 289 
 
 Personal service may be by delivering the process into the defendant's hand ; Rule 263. 
 or by seeing him and bringing the process to nis notice : Thomson v. Pheney, 1 personal 
 Dowl. 441 ; and showing him the original if he desires it : Oogpg v. Hunting- service. 
 tower, 12 M. & W. 503 ; PhUipson v. Emmanuel, 56 L. T. N. S. 858 ; Hawthorn 
 V. Ilarrin, 23 W. R. 214 ; within a reasonable time after service : Tho^nas v. 
 Pearce, 2 B. & 0. 701 ; Petit v. Ambrose, 6 M. & S. 274 ; a quarter of an hour 
 was considered reasonable time in il'estlei/ v. Jones, 5 Moo. 162 ; or if he 
 refuses to receive the copy, after being told its nature and being tendered it, 
 then by placing it on his person : Bell v. Vincent, 7 D. & R. 233 ; or by throw- 
 ing it down in his jjresence : 1 Dowl. 443. The copy must, however, be left 
 with the defendant and not merely shewn to him : Worleu v. (Hover, 2 Str. 877, 
 even though he refuses to take it : Pigeon v. Bruce, 8 Taunt. 410 ; Erwin v. 
 Powlfij, 2 U. C. R. 270. 
 
 In O'Sulliran v. Murphy, 78 L. T. Jour. 213, j)lacing the writ on the ground 
 within 2() or 30 yards and liolding up the original, the defendant having run 
 away to evade service, was held insufficient. 
 
 Where the [jerson starving did not show the original although requested to do 
 80, service was set aside ; Philipson v. Emmanuel, supra. 
 
 Api^arance precludes all question as to the sufficiency of service ; Dart v. 
 Citixits Inxui-aiice di., 11 P. R. 513 : see Boyle v. Sacker, 30 Ch. D. 251, and 
 notes to J'lilc 277. 
 
 If it is intended to object to the se>'vice, a motion to set it aside should be I 
 made before appearance : Boyle v. Sacker, sup. \ 
 
 By the practice in the Common Law Courts, anyone might serve pai>er8. But Who may 
 by K. S. O. 1877, c. .50, s. 335, "No mileage shall be taxed or allowed for the serve writs, 
 service of any writ, paper or proceeding, witliout an affidavit being made and 
 produced to tlie i)r()|)er Taxing Officer, stating the sum actually disbursed 
 and paid for sucli mileage, and the name of the party to whom such payment 
 has Ijeen made ; and, except in the cases provided for in the 23rd section of 
 this Act, no fees sliall be allowed for the mileage or service of writs of sum- 
 mons or other ?«r.t»n? process unless served and sworn in the affidavit of service 
 to have l)eeii served, by the Sheriff, his Deputy or Bailiff, being a literate 
 l)erson (or by a Coroner when the Sheriff is a party to the suit), nor unless a 
 return of the Slieriff or Coroner (as the case may be) is indorsed thereon." 
 The i)ractic(! was formerly similar in Chancery under Order 208, but that Order 
 was rescinded by Order (JIG, and thereafter any reasonable sum paid for serv- 
 ing Proceedings might be taxed, no matter by whom the service was effected. 
 Under the jiresent tariff (item 17) the costs of service of a writ by a person other 
 than a sheriff are only taxable where the sheriff has made default : see Rule 254. 
 
 Service of the writ may lie effected at any time of the day ; Rule 480 does 
 not apply: Mniidi/v. S'tephensini, 10 C^. B. D. 60; but not on Sunday : Mack' 
 rtih V. Niehiihou, 10 Ves. 367 ; Taylor v. Phillips, 3 East 155. 
 
 Sulntituted Service was not in use in the Common Law Courts. The Substi- 
 wmivalent ])raotice was that provided by R. S. O. 1877, c. 50, s. 20, under tiited ser- 
 which, if reasonable efforts had been made to effect service, and either the writ v**'^- 
 had come to the defendant's knowledge or he wilfully evaded service, an order 
 might be obtained to pnweed as if persona' service had been effected. In Formerly. 
 Chancery, substituted service was allowed wfiemver necessary : see Hope v. 
 Hope, l!l. Ik'ii V. 237 ; 4 I). M. & (i. 328, and this jurisdiction was enlargt-d by 
 Statute Rev, Stat. 1877, c. 40, s. 94 (now Rule 273). 
 
 As to substituted service where a defendant is out of the jurisdiction, see 
 notes to Rule 271. 
 
 The pft'sent Rule gives a wide discretion to the Court. It allows substituted Present 
 •flrvice to Ix- ordered if, from any cause, the iilaiiitiff is unalile to effect prompt practice, 
 personal service, and applies to a case of persons sued in the name of a firm 
 where no ikthoii having contnil or management of the business can be found : 
 mtitov. r/ii7f/,{- (>,., W. N. 1883, 208. 
 
 Where defendant has an agent within the jurisdiction, substitutional service When Biib- 
 m»y be allowed on such agent, e.<i., a managing clerk at his place of business ; stituted 
 J.A. 19 
 
290 
 
 COMMENCEMENT OF ACTIONS. 
 
 Rule 2S3. 
 
 service 
 allowed. 
 
 When not 
 allowed, 
 
 Not con- 
 fliiod to 
 service of 
 . writs. 
 
 Armitage v. FitzwiUiam^ W. N. 1875, 238 ; general agents : Jones v. Cargill, 
 11 L. T. N. S. 5(i6 ; special agents : Hobhouse v. Courtney, 12 Sim. 140 ; solici- 
 tors who had acted for defendant : Hornby v. Holmes, 4 Ha. 300 ; Watt v. Bar- 
 nett, 3 Q. B. D. 183, 363 ; Tottenham v. Barry, 12 Ch. D. 798 ; but see The 
 J'lmimerauia, 4 P. D. 195, infra, p. 290. 
 
 As was said in Wait v. Barnett, 3 Q. B. D. 367, substituted service may be 
 proijerly ordered \i\nn\ any iiersons with whom the Court is satisfied that the 
 party is in communication. The Court has a riglit to consider that the copy of 
 writ served will be sent on, and the service will be good, though the service ia 
 not in fact communicated. 
 
 In cases decided under the former Chancery practice the agent was required 
 to be such in relation to the subject matter of the suit : Allan v. Pypcr, 511. C. 
 L. J. 118 ; Cupples v. Yorston, 2 Chy. Ch. 31 ; Canniffe v. Taylor, 2 Gr. 617; 
 Doremus v. Kennedy, 2 (ir. 657 ; but under the present practice orders have 
 been made though the jierson served has no connection with the subject of the 
 suit, if only he is likely to communicate the fact of service to the defendant ; 
 see Watt v. Barnett, nupra. 
 
 Where defendant's wife, or other relative or person, is shown to l)e, or to be 
 likeljr to be in communication with him and is within the jurisdiction, 
 service may be allowed on »uch i)erson : Dicker v. Clarke, 11 W. R. 635 ; 
 Bank of Whitehaven v. Thompson, W. N. 1877, 45 ; Somerville v. Joyce, I 
 Chy. Ch. 358 ; and even under the former Chancery practice such service 
 has been allowed though the relative was not shewn to be at the time in 
 communication with defendant : Cameron v. Baker, 2 Chy. Ch. 281. 
 Such service may be accompanied by advertising where tlie person ujwn 
 whom substituted service is made, may not be able to communicate with 
 defendant : Bank of Whitehaven v. Thompson, Cameron v. linker, supra ; 
 Coulbourn v. Carshaw, 32 W. R. 33, or by mailing to an address at which 
 defendant is shewn to have recently been : Cupples v. Yorston, supra. 
 
 Where a bill had been filed for foreclosure, and the defendant the official 
 assignee of the mortgagor absconded before service effected, service wm 
 allowed substitutionally upon one of the Insiiectors of the estate : Londm 
 Canadian Loam^' Agency Co. v. Thompson, 8 P. R. 91. 
 
 Substituted service will not be ordered under this Rule unless it is shewn 
 that prompt i>ersonal service cannot be effected. The fact of a defendant 
 being out of the jurisdiction is not alone a reason for disiwiising with i)er- 
 sonal service. He must be evading service, or his whereabnits unknown: 
 Robertson v. Mero, 9 P. R. 510. Where his residence can Ix; a-sccrtained by 
 examination of relatives, that course will doubtless be jiroper as fonnerly 
 in Chancery : see McMurrich v. Ilo.jau, 1 Chy. Ch. 307 ; McDonald v. 
 McMillen, 2 Chy. Ch. 282. 
 
 Substituted service will not be ordered under this Hide, of a writ which 
 could not legally have been served ijersonally — as a writ against a colonial 
 government : Hloman v. i/overnor of New Zeulard, 1 ('. P. D. 563; see also 
 Field v. Barnett, 56 L. J. Q. B. 89. 
 
 The prirtciple upon which substituted service is granted is that the service ii 
 likely to come to the knowledge of the party : Hope v. Hope, supra ; Furhfr v, 
 Kii\^, 29 W. R. 535 ; whore therefore the defendant was shewn to have 
 absconded from his n-sidence and place of business, leave to serve liiui sub- 
 stitutionally, by leaving copies of trie writ at those places, was refused, and 
 service was allowed by advertising : Wolverhampton A Staffcrdfhire Bdnking 
 Co. V. Bond, 43 L. T. N. S. 72 ; 29 W. R. 599 ; see also Coulbourn v. Camhau;^ 
 W. R. 33. 
 
 The i)roviBion for substituted service has been held in England tii apply to'" 
 originating summons as well as to a writ : Be Pepper, 32 W. K. 765 ; 50 L. 1- 
 N. S. 580; 53 L. J. Chy. 1054 ; though it has also l)ee,n held by I)cnman, J., 
 in Chambers, to relate only to service of writs of summons or notiw's thewjt, 
 and therefore substituted service of a notictt of application for a writ "i attacli- 
 ment was refused : Anon., W. N. 1876, 105 ; 2 Charl. Cli. Ca. 26. It w !»*• 
 
MODE OF SERVICE. 
 
 291 
 
 wimed, however, that notices under Rule 329 may be so served, and that under Rule 253. 
 the general jurisdiction, which the Courts of this Province have heretofore had 
 they may order such service of all papers not required, to l)e personally served : 
 s(f McTwjijurt V. Merrill, 7 P. R. 405, and Rule 407 as to notices of motion and 
 apiwintmeiits. Substituted service has been allowed of proceedings to set aside 
 fraudulent conveyances under R. S. O. 1877, c. 4!>, s. 10, now Rules 1007 et scq. ; 
 Mimn v. Marshall, P. R. 1 ; and in England of a notice of motion : Cook v. 
 Daj, W. N. 1870, 122 ; Hamilton v. Davies, W. N. 1880, 82 ; see Dan. Pr. 5th ed., 
 1442 ; an order for an interim injunction : Yoawj v Brassey, 1 Ch. D. 277 ; a 
 summons to shew cause, where defendant was evading service : hunt v. Austin, 
 u p. Mason, !) ii. B. D. 5J)8 ; a notice of appeal : Ex p. Warbury, Re 
 Whalley, 24 Ch. D. 304 ; 25 Ch. D. 330 ; and a notice of motion for an aclmin- 
 istration order under Chy. (ien. O. 038 (now Rule 972) : Re Allan, 1) P. R. 
 77 ; see also Re Morant, W. N. 187'J, 144. 
 
 An order to proceed without service, will not \ye. made ; substituted 
 or efjuivalent service must be effecttKl, if i)ersonal service, or acceptance of 
 service cannot be obtained : W. N. 1875, p. 202 ; 1 Charl. Ch. Ca. 37. 
 
 In Conk v. Ley, 2 Ch. D. 218, it was held by V,-C. Hall, that the substi- Substitu- 
 tution of notice for service mentioned in the latter i)art of the original Rule tion of 
 was not intended to apply ti> ordinary cases of i)er8on8 not able to be found, notice for 
 but who were within the jurisdiction. He, however, directed substitutetl service. 
 nervice of the writ by advertising, and by leaving a copy at defendant's 
 office and lodgings, which is i)lainly authorized by the Rule in its present shape. 
 In Ltddcll v. McDougall, 22 Sol. Jour. 838, Manisty, J., held that the Court 
 had power to make an order for substitution of notice for service within the 
 jurisdiction. See also Rule 273. 
 
 In such cases the time for appearance runs from the time the order takes 
 effect, that is, from the service of the writ at the place mentioned or issue 
 of the advertisement, whichever is the later : Crane v. Jullion, 2 Ch. D. 
 220; see also Johnson v. Moffat, W. N. 1875, 248 ; 1 Charl. Ch. Ca. 39. 
 
 Where defendant gave his club as his atldress, and an order for substitu- when ser- 
 tional service had been granted on an affidavit of a clerk that he had been vice set 
 to the defendant's residence but iiad been unable to effect iiersonal service, and aside, 
 judgment by default was signed on the substituted service, the affidavit was 
 considered misleading, and the order for substitutional service was set aside, 
 though two years had elapsed since the signing of judgiiient : Johnson v. Menzics, 
 "2 L. T. Jour. 348. 
 
 An order directing substitutional service upon solicitors of defendant in a 
 former action was set aside, it Iwiny shown that the solicitors had ceased to 
 act for defendant in such fonner action ; The Pommerania, 4 P. D. 195. 
 
 .\ combination of diflferent motles of effecting service where defendant's 
 address is not known or he cannot lie found may be ordered, dei)endiiig upon 
 the circuinstaiices of the ))articular case. 
 
 A>«)rt;)/(S.— Wiiere the defendant was Hup)>iK)sed to \w. within the jurisdic- 
 tion but iiad al)scond«'d or was eviwling service, service wsvs allowed by leaving 
 copies of writ at his last IcKlgings ana pliU3e of business and by advertising or 
 mailing : Cnok v. Drii, 2 Ch. 1). 218 ; Capes v. Brewer, 24 W. R. 40 ; by serving 
 tenants (if lauds in question in the action to whom the defendant had given 
 [JJ^K* to pay rents to him, and advertisement: ('rane v. Jul/ ion, 2 Cn. D. 
 W; Cnulliimrn v. ('arshaw, 32 W. R. 33 ; by leaving copy of writ at defend- 
 ants only known place of residence, a club, and serving solicitors who refused 
 to accejjt service l)ut had acted in other matters for defendant : Rafael v. 
 "|i';/(7/, 34 L. T. N. S, 124 ; see Amm, 1 Char. Ch. Ca. 38 ; by mailing to his 
 aildress and iulvcrtising : Hamilton v. Davies, \V. N. 1880,82; by serving 
 'lefendaut's wife, leaving copies at his residence and advertising : Mullows v. 
 Hannhttr, W. N. 1882, 183; 31 W. R. 238. Where defendant is out of the 
 jurisdiction Imt his whereabouts unknown, service may be allowed by ajlvertis- 
 I'lg alone if no agent within the jurisdiction or person likely to be in communi- 
 
292 
 
 COMMENCEMENT OF ACTIONS. 
 
 m 
 
 Rnles cation with defendant : Hurthy v. Dilke, 35 L. T. N. S. 70(5 ; (/ordon v. Hmiw, 
 
 264-266. 6 P. R. 2G0 ; Whitleii v. Honei/wM, 24 W. R. 851 ; or by advertising and iimiliiig 
 
 to various addreHMet) at wliich defendant has been heard of : Stimmm v. .S'^wwod 
 
 6Gr. 37!>. 
 
 Practice. Substituted service, wlien duly effected, is for all purixises eciuivalent to 
 
 personal sei ice : Watt v. Barnett, 3 Q. B. I). 3()3. 
 
 \v h Ji ipssary to effect substitutional service on several defendants at 
 
 tht, viii " ■ ■ " ' ■ "■ 
 
 single h. 
 
 the aoti .„■ . J, Mf-y v. Shunahan, 8 L. R. Ir. 155. 
 
 Any objectio.T to an order allowing any particular iucmIc of service iimst lie 
 taken 1 y ' .otion to fi"i .aside the order an(l not by pleading thi^ objection as u 
 defence : P'^c '''i v. .'" . i<, 1 Ex. D. 303; and it slionld lie iniidf Ix-fdre tlic 
 defendant has i.tven iUiy other M'ep in the action, otherwise iie will be deemed 
 to have waived his right xi ob dOt : see Fry v. Moore, 23 C^. 15. D. 39."). 
 
 Coats. Costs of a motion for leave to effect substituted service are taxable in the 
 
 cause : Ewjer v. Buckley, 8 L. R. Ir. 99. 
 
 me plaintiff, and the application is based on the same facts, a 
 t ■ y be used setting out the necessary facts and entitled in all 
 
 Indorse- 
 ment of 
 receipt of 
 process, 
 etc.; non- 
 service, re- 
 delivery to 
 plaiutiiir ; 
 costs of 
 serviee. 
 
 334. Upon the delivery of a writ of summons at the 
 office of a Sheriff, to be served by him, he, his Deputy or 
 Clerk, shall indorse thereon the time when it was so 
 delivered ; and in case the writ is not fully and completely 
 served within ten days after such delivery, the plaintiff, his 
 solicitor or agent, shall be entitled to receive 'back the 
 same ; and the Sheriff, Deputy Sheriff or Clerk shall 
 indorse thereon the time of the deliverv : and the costs of 
 the mileage and service of the writ by any literate person 
 afterwards, shall, in case the person to be served was at 
 any time during such ten days within the County, be 
 allowed in the taxation of costs, as if the service had 
 been by the Sheriff or his officer. R. S. 0. 1877, c. 50, 
 s. 23 ; c. 40, s. 95. 
 
 Failure by 255. If the Sheriff, being applied to, neglects or refuses 
 ?(^-deHvlr. to retum the writ, after the expiration of the ten days, the 
 plaintiff may issue a duplicate or concurrent writ on the 
 pnecipe already filed, and the costs of the first or other 
 writ not returned may be charged against and recovered 
 from the Sheriff by the plaintiff or his solicitor. K. S. 0. 
 1877, c. 50, s. 24 ; c. 40, s. 96. 
 
 Indorse- 
 ment of 
 service. 
 
 S56. The persons serving a writ of summons shall, 
 within three days at most after the service, indorse on the 
 writ the day of the month and week of the service thereof; 
 otherwise the plaintiff shall not be at liberty, in case of 
 non-appearance, to proceed by default [without the leave of 
 a Judge, such leave to be obtained at the cost of the plain- 
 
MARRIED WOMEN, INFANTS, LUNATICS. 
 
 293 
 
 tiff, and such cost to be in no event charged against the ^Ji^.g'L 
 defendant/ 
 
 ((() Every affidavit of service of such writ shall mention 
 the day on which such indorsement was made. J. A. Rule 
 44. 
 
 See Eng. R. 1875, O. 0, r. 13, (1883, R. C2). 
 
 The words in lii-iickcts an- not in thu Kiig. Rule. In //nsfhi'/s v. Hiirfc.i/, Ifi 
 Ch. D. 734, and in .Sfn.a/ v. Perhrtt, W. N. 1883, 70; 48 L. T. N. S. 755, and m 
 Shephefd v. Si/rur/,; W. N. 188(5, 84, tlie tinio for making the indorseuient was 
 •exteiidi'd inidcr Rule 485. 
 
 All order to anunid the indon-ienient of service was granted where a wrong 
 <late wai' ndorsed by mistake : ////hi' v. Murjilni, 2 L. R. Ir. 35. 
 
 Holid..^« are not included in the tliree days : Rule 473. 
 
 This/fi(/r has i)een lield not to ai)i)ly to cases of substituted service : Jjt/niond 
 V. Croft, 3 Ch. 1). 512; C'/v/.v« v. /CiittiiKjWill, W. N. 1875, 250 ; 1 Charl. Ch. 
 €a. 40; or where notice in lieu of service, (see /'ule 272) is given: Finh v. 
 ClmtMn,,, W. N. 1882, 145 ; 31 W. R. 87 ; 47 L. T. X. S. 328 ; . where the writ 
 is served by adverti-sement : /}(in.'< v. LinniU, 78 L. T. Jour. 318 ; W. N. 1885, 
 54. 
 
 (a) Married Women, Infants, Lunatics. 
 
 257. 
 
 A married woman shall be served in the same Married 
 manner as a party to an action or matter not under any °'"*"' 
 disability ; and the like proceedings may be had on such 
 service and with the like effect, as if the married woman 
 were &feme sole. J. A. Eule 35. 
 
 'riiis /^'/ccorresi)onds with the Chancery Order, No. (>13. TVie Eng. Rule of 
 lH'iS, H, .50, ])rovicles that where the husband and wife are VK)th defendants, 
 they shall botii be served luiless the Court or a Judge shall otherwise order. 
 The previous Rule of 1875, (). !), r. 3, was different. Tf the husband and wife 
 hyed together, service on the husband was to he deemed gtxxl service on the 
 wife, hilt tile Court or a .Judge might order that tlie wife should be served 
 with, or without, service on the husband. The Mtirried II nmen's Acts here have 
 made a difference ; see R. S. O. c. 132, and notes to /{ule 314, and the above 
 liiil(2i)7 is in furtherance of their object. 
 
 25S. Where the action is in respect of an estate in service on 
 which an infant is interested, service on the official guardian, 
 guardian shall be good service on the infant defendant. 
 
 (a) If in such case there are more than one infant 
 defendant, for whom service is to be made on the Official 
 Guardian, one copy only need be so served. 
 
 (h) From the time of such service the Official Guardian 
 shall become and be the guardian ad litem of the infant, 
 unless and until the Court otherwise orders ; and it shall 
 be his duty forthwith to attend actively to the interests of 
 the infant in the action, and for that purpose to communi- 
 

 294 
 
 Allies 
 259, 260. 
 
 I \ 
 
 '% 
 
 Service on 
 infant por- 
 sonally. 
 
 TortB. 
 
 COMMENCEMENT OF ACTIONS. 
 
 cate with all proper parties, including the father or 
 guardian (if any) of the infant, and also the person with 
 whom or under whose care the infant resides, in case such 
 person is not the infant's father or guardian ; and the 
 guardian is to make such other inquiries and to take such 
 other proceedings as the interest of the infants may require. 
 J. A. Eule 36, first imrt. 
 
 The practice under Eng. R. IftTf), O. 0, r. 4. (1883. R. .51) is diffi nut. 
 
 TluH Ihilr, in the cases to which it ai)])lips, is in sul)stantial accordance witli 
 the Chancery Orders (110, (ill, as construed in tlu' Court of Chancery, cxcHpt 
 that those C-ders required an (■'• /.iir/r order tf) he taken out for tiic api.oint- 
 ment of the guardian, which order tlie present liitlf disjienses with. 
 
 The original Jin/f, 3fi had no ai)i)lieation in the ea^es in wliieh an infant 
 defendant was to be |)ersonally served (see Jtitic 25!() nor where the infant 
 defendant was not resident in Ontario. It was also held tliat in an actidn 
 against an infant for aeduotion it was not proiier to .^erve the Official (hiardian 
 or appoint him guardian for the defendant. In the revision of tlie A'.'/iw it is 
 mode clear that the cases in which the Official (iuardian is to act are to lit- 
 those whicii formerly were dealt with in f!hancery, viz., where an infant, 
 whether witliin, or without, the Prf)vince, was interested in an estate in ques- 
 tion in the suit. In all other cases Jiulf 201 applies, and a guardian is to lie 
 apfwinted as in Common Law actions before the J. A. 1881. 
 
 The wonls in the original /tnlr 30 limiting its scoiie to cases wiiere tbe 
 infants reside in Ontario having lieen omitted and Cliy. Orders 01()-(!12 hav- 
 ing l)een abrogated (see Jtulr 3), s»ich cases as Wcnthcrhcad v. Wnilhcrhfml, 
 !) P. R. !MJ; and Rni: v. Anthonii, lb., 54.">, are not now to be followed, 
 
 Thp, Rules as to service in case of infancy anply wiiether the infant be a sole or 
 joint defendant, and whether suert |)eraonally, or in a rej)resentative capacity : 
 Re Jackson, Mtuisey v. Crookshanks, 12 I*. R. 47.'). 
 
 350. Where an action is brought against an infant 
 defendant for the recovery of lands, goods, or chattels of 
 which he is personally in possession, service shall be made 
 on the infant personally, and one copy of the writ shall 
 also be posted (prepaid) to, or delivered at the office of the 
 Official Guardian. J. A. Eule 37. 
 
 This varies from Eng. R. 1875 and 1883, O. 0, r. 4. Personal service on m 
 infant is made in the same manner as upon an adult : Dan. Chy. Prac. iritii 
 ed.) 368, 370. 
 
 Where an infant is out of tiie jurisdiction the Court has the like |K)wer 
 to order substitutional .service or by publication or (jtherwise as in the case of 
 an adult : Duffii v. O'Connor, 1 Chy! Ch. 3!)3. 
 
 See also notes to the preceding Rule. 
 
 260. When the action is against an infant in respect of 
 a personal tort or for the mere recovery of money, the 
 infant shall be served as in the case of an adult defendant. 
 New. 
 
 See note to Rule 2.58. 
 
1. h.vs;' '^'S';^ 
 
 INFANTS, LUNATICS. 
 
 295 
 
 261* When the infant is personally served and is not^^*" 
 represented by the Official Guardian, there may be a(,„^^.,„^„ 
 guardian appointed for the infant as in actions at Common j'j'>e»- "'an 
 Law before the Judicature Act. New. yuardian. 
 
 Se6 note to Rule 258. 
 
 The C. L. |>racticti referrfKl to jh that by which a real guardian and nf)t 
 a fictitioiiH one was api^intfld after the time for apiwarance has expired. 
 If the infant does not aj)pear by guardian an order may ))b (obtained by the 
 plaintiff on motion refiuirmg the infant to appear by guardian or in default 
 that the plaintiff may apiKtint one for him : Ihfue v. Jimwu, 13 P. R. 17. 
 
 The consent of hucIi guanlian named by the ]>laintifT must be shewn and also 
 that he has no interest lul verse to the infant : lb. 
 
 203. Any person interested may move before a Judge •^„°"^iJ^^'"^ 
 in Chambers, on such material as he may think proper, 
 for an order appointing a guardian other than the Official 
 Guardian ; whereupon such order as may be considered 
 moat conducive to the interests of the infant shall be made. 
 J. A. Rule 36, last part. 
 
 This Ride is in substantial accordance with Chancery Order C12. 
 
 In Utirkins v. Hhrty, P. R. 200, imder the former practice in a redemp- 
 tion suit to which tiie widow and infant heirs of the mortgagee were parties 
 defendant, a guardian named by the mother wiis ap]M>inted to the infants, 
 it being considered that there was no conflict of interest between the defend- 
 ants, riie present practice is, however, different. In Hotlijina v. Hodijint, 
 (Mr. Dalton, March, 18.S2), the mother of infant defendants of tender years, 
 who was also their guardian a)>pointed by the Surrogate Court for the purpose of 
 taking prrxjeedings on their Inshalf for partition of the lands in question 
 under '/'Ac I'ltrtilion Act, applied to have a guardian other than the Official 
 jJuanliaii a|)|iointed. There was no conflict of interest and the action 
 involved a )>artition of lands inherited by the infants from their grandfather, 
 but the Master in Chaml)ers held that there was no sufficient reason for 
 acting under the jwwer conferred by tliis Ridr, and that the policy adopted 
 by the RiiUx of apjwinting the Official (iuardian was not to l» departed 
 from without some reason, a]>art from the wishes of those who naturally 
 have the care of the infants' interests. 
 
 On an application at the instance of an infant of 18 who was considered 
 capable of exercising a sound discretion in managing his own affairs and 
 aimlied with the ap|)robation of his father, a guardian nominated by the 
 infant was a])|iointed under the al)ove clause in the place of the dilicial 
 Ciuardian : McKcnzk v. Dwiijht, 2 C. L. T. 359. 
 
 203. Where a lunatic, or [where a person] of unsound Lunatiei. 
 mind not so found b}' inquisition [or judical declaration] is 
 a defendant to the action, service on the committee of the 
 lunatic, or on the person with whom the person of unsound 
 mind resides, or under whose care he or she is, shall, 
 unless the Court or a Judge otherwise orders, be deemed 
 good service on such defendant. J. A. Rule 38. 
 
 Same as En^. R. 1875, O. 9, r. 5 (1883, R. 52), except the words in 
 brackets. The R. S. O. c. 54, s. 8, authorizes the Court or a Judge to declare 
 » lierson a lunatic without an inquisition. 
 
296 COMMENCEMENT OP ACTIONS. 
 
 Bules Wliern a lunatic luul no coniiiiittfis Ht^rvice was, in Kii^lund, dircotttd to lie 
 
 264, 266. on tiio keepor of an aHylinn wlmrt" the lunatic waH living ; I'huru v. Smith 
 \V. N. ]«7», 81 ; 27 W. R. (il7. It iH the duty of the kcfpcr of an 
 asylum to allow tliB writ to Ix' Hurvcd : Jh'nimm y. lldnlintix, W. \. 1,S(J7, 1", 
 unlesH the service might be injurious to the lunatic ; /'»■ Mn'n, '', ( 'hy. (!ii. 42!l, 
 .Service tm tiie nuuiager of a hniatic defendant's business wiis held biwi • 
 Foresfnct Co. v. JJitrant, 10 il B. 1). 471. 
 
 By K. S. O. c. 24,'i, s. .5,3, th(! Inspector of ^'risons and I'uhlie Charities 
 is ex officio, and by his name of office, tiie committee of t^very luniitic who 
 has no other committee, and who is (hftained in a puldic asylum, and it 
 presumed that in such case servict may Ihi made upon tiie Ins|M'ctor. 
 
 Guardian 
 ad litem. 
 
 2ft4. No further proceedings are to be taken against 
 such a defendant who has no committee, until a guardian 
 ad litem is appointed. J. A. Kule 39. 
 
 See notes to Rulci 335, 33C («)• 
 
 {h) Partners. 
 
 See note to Rule 317. 
 
 Partners. 265. Where partners are sued in the name of their firm, 
 the writ shall be served either upon any one or more of the 
 partners, or at the principal place within Ontario of the 
 business of the partnership, upon any person having at 
 the time of service the control or management of the 
 partnership business there; and, subject to the Rules here- 
 inafter contained, such service shall be deemed good service 
 upon the firm. J. A. Bule 40. 
 
 Same as the Eng. R. 1875, O. 9, r. 6, (1883, R. .53). 
 
 Service on a person who is not a partner may be discharged witii costs on the 
 a]>pIication of tno finn : Nelson v. I'astorind, 49 L. T. N. S. .504. 
 
 It has been held that a i)rivate i)artnership does not exist ajjart from the indi- 
 viduals who comiK)se it, and if they ar«f nisident abroad they ciimiot Ih' strvwl 
 at a place of businesb of the firm within the jurisdiction, and that tlierefore tills 
 Rale must be read so as to refer only to jiartners of firms subjec' to tlie 
 jurisdiction of the English Parliament i)y l)eing British subjects, or resident 
 within the jurisdiction, unless the subject matter of the action is such as to 
 justify service out of the jurisdicti(m under Rule '271 : Ru.istll v. ('(imbt/urt, 
 W. N. 1889, 139 ; 37 W. R. 701, over-ruling the contrary decision of O'NeH v. 
 Clason, 40 L. J. Q. B. 191 ; see also yuttfr <t- di. v. .UesmvjcricK Mdritivm, 
 54 L. J. Q. B. .527. Where, however, one ])artner of a finn carrying on a business 
 out of the jurisdiction hajJiiened to be within the jurisdiction, service upon him 
 of a writ naming the ordinary time for appearance was held gcKxi service 
 under this 7?)//e : Pollrxfen v. 'Sili.ion, 10 Q. B. D. 792: see Rii.ssrII v. Camhe- 
 fort, supra. As to what constitutes "having the control or management of the 
 partnership business, " see ISaillie v. (ioudwin, 33 Ch. D. (504. 
 
 Where a partnership, unregistered, existed lietween A. B. and C. under the 
 style A. & Co. and A. absconded, and three days later C. made a secret assign- 
 ment of his interest in the business to B., and two days thereafter, lief ore the 
 announcement was made public^ C. was served with a writ in an action against 
 the firm by its finn name, of which proceedings B. was aware, it was iield that 
 the service was good : Bank of Hamilton v. lunkeslee, 9 P. K. 130. 
 
CORPORATIONS. 
 
 297 
 
 TlioHpli tlw pivrtncru in such iictiim are to aiiiwiir iiidiviiliuilly (Kiih' 2SH) tlif Rules 
 
 jii(lK<»*'"^ is not u^iiinxt tlicni individually, hut nnist follow the writ and l>< 
 jij,'aiiiKt tlic firm ; Jiirhunn y. /j'li/i/ii/i/, H l^. H. 1). 474; Ail<im\. T(tii'ii»i'iiil,\A 
 (). H. I). Wi ; (>«'•' (liKo\iHMion of tiiiH nwv in 17 L. •!. 324) 
 
 266, 267. 
 
 2Urt. Where one person carrying on business in the jof,^°",„„i. 
 name of a firm apparently consisting of more than one nesH under 
 person, is sued in the firm name, thd writ may be served nrm" " 
 at the principal place within Ontario of tlie business so 
 carried on, upon any person having at the time of service 
 the control or management of the business there ; and, 
 suhject to any Rules of Court, such service shall be deemed 
 good service on the person so sued. J. A. liule 41. 
 
 Siiim-iiH Knj?. Kulf of .lunc, 187(i, K. 4, (1MH:J, 1{. 54.) 
 
 Tills Ri'v (loiM nut ai)|)ly wlinr,' the |>;'rson ho currying on inminesH lian 
 biOiiKMi lunatic, /iw/c 2(>H in «>iali cise applif.s : h'tiri' Slin'l ]\'iiir/iiiii,v' Co. v. 
 Ditmiul A- (•'!., 10 (i. B. D. 471. 
 
 If abusiiiHss is carried on hy ii singli- in:livi<lual lie may hi- sued in the firm 
 niHiK!. R'i'c 2l)(i i)rovides for the st-rvice of the writ ; Jdilc 288 provides for 
 thedi'ft'iidiuit'H ai>pf)aranoe. 
 
 See also the notes to the previous Hiile, . 
 
 (r) Corporations. 
 
 267. A writ of summons issued against a corporation service on 
 ajigregate, and, in the absence of its appearance by solicitor, tiontirhow 
 all papers and proceedings in the action before final judg- *''^'^'=*«'*- 
 raent, may be served on the Mayor, Warden, Reeve, Presi- 
 dent, or other head officer, or on the Township, Town, City 
 or County Clerk, or on the Cashier, Treasurer or Secretary, 
 €lerk or Agent of such corporation, or of any branch or 
 agency thereof in Ontario; and every person who, within 
 Ontario, transacts or carries on any of the business of, or 
 «ny business for, any corporation whose chief place of 
 business is without the limits of Ontario, shall, for the 
 purpose of being served with a writ of summons issued 
 against such corporation, be deemed the agent thereof. 
 R. S. 0. 1877, c. 60, 8. 21. See Chy. 0. 91, 92. 
 
 TheKng. Rule of 1883, R. ;">, first clause, contains analogous provisicms, being 
 a cmsoliflation of the repealed Rule of 1875,0. it, r. 7, and the in-ovisions of sec. 
 IGoftheC. L. P. Act of 18.52. 
 
 A foreign corporation which carries on business within Ontario is capable of Foreign 
 liein^ treated for the purposes of sei'vice as a Provincial corporation resident corpora- 
 Mthinthe Province : J/ti'/i/iii v. Comfdnii; etc., .17 W. R. 70.3, approving of and '"'"*■ 
 following Xfirhi/ v. Voii Ojjjien, L. R. 7 (^ R. 2!W, see also Palmer v. amtld'n 
 mnufucliiri,,;/ ( '<>., W. N. 1884, ((.3 ; per Lord St. Leonards in The Vnrron Iron Co. 
 V. Muelaren, 5. H. L. C. at p. 45!t. Servic«> under the Kng. Rule 18«,3, R. 55, 
 was held g(XKi on a foreign corporation which had an agency office in London : 
 Uvmmc A: (•„. v. ll„n<j K<m</ A- lih<iii:ih<ii Jtaitkiiif/ Co., 33 Ch. D. 44(>. But 
 •service on a mere b(M)king clerk of a .Scotch railway comjiany at a station on 
 
ii!' 
 
 
 ! 
 
 iiW«*tf f 
 
 '^ 
 
 208 COMMKNCEMENT OF ACTIONS. 
 
 RuleB an Kii^^lisli milway over which tlu* iScotcli uniiipiuiy liivd rmiiihiK' |><>w*'rM, wan 
 
 268,269. held iiiMiitticiflit iii Moiirirl/i v. <>'liiii/"ii' mnt Smilli Wi'slirn Jtai/mni fV/., I,, ]{ 
 H K\. 14!>. 
 
 Wlicrc, l).v ii Statute, Mcrvico of a writ iniKl't ' tfcctcil liy licin^,' left ijt, ,,r 
 
 Hi'tit by piwt to, thf i''mi|iaiiy"H office, or ^jiveii to the Hecretaiy <ii', if iiohcwt 
 tary, to a director, and tlie company iiad no otlici', and the action was Ijrcm^lii 
 l>y tile Hecretary, nervice on a director wan held invalid : Lini'niisini v. hni^m 
 Si, •tn>i,itli 1(111, He, 11(1 il wan, '^"i I^- '!'■ N. H. 32. 
 
 Servicic within tlie Province on the President of a foreijfii corporation was 
 held had where it was not shewn that it transiujted any hnsiness there ; H7/.«i/t 
 V. hilroit <l' A/ihriiiikir /li/. ('a., ',i P. |{. ,'{". Where a forei(,'n hismaiicn Cii. 
 had a liead oHice for the Province in Toronto service, on the liK'al ajjrnt of tln' 
 Co. at Ottawa was held jfinid, notwithstanding' the iiroviMions of the l)oiii. Act, 
 40 V. c. 42, M. !l : ni/noit v, .AVrw Li/r liiminiiKr Co., H P. 1{. 1.31 : see now K. 
 S. C. c. 124, M. 13. 
 
 A colonial (rovernnient ; Slamnii v. <tiirii\ii)i' <•( Xin' /inlnnil, 1 (!. |'. 1). 
 i'rfiH. and a forei>,'n (Jovernnient ; Stri>unb>'iy v. Custn Him, 2!t VV. li, 1*2.5, havi- 
 lifcn held not to he corporations. 
 
 Tt has liet'n decided nn<ler the Knmdish O. (>3 of IHTo, and s. KM) of tlii> XvXnl 
 1S73 [see s, 27 of the Ont. .\ct, and H. S. (). v.. 1, s. « (13)1, that a foreign w.r- 
 poration, thoii>fh it does not carry on liiisiness within the jurisdiction, may !»' 
 sued (here, in cases w here an in(li\ idual forei^'neruiiKl't I'o sued : see H'f.itiiinn v. 
 . I k/lil,nl,ii/r/, vie, 1 l.;x. 1 1. 237, an<l Scull v. Thr lln/iil IIV' '■ < '<i,iill<- ( '"., 1 1^. B. I). 
 404 ; and liointl Mnil Slvinn. I'ltclal Cn. v. /intlniiii, 2 App. ('as. 3HI. 
 
 Such a corporation might, imder the old |>ractice, have t>een sued inOntarin, 
 and the nuKleof service in such ii case was |)rescrihe(l l>y ('hy. <). !t2, and I{. S. (t, 
 1H77, c. 50, MS. .50 and 51. Since tlic .Fiid. .\ut a foreign defendant can only !"■ 
 sued where /'ii/rx 271 to 274 apply. 
 
 Services of !SOM. A writ of Hummons issued apainst a railway, tele- 
 ceVtain cor- graph, or express corporation, and all subsequent papers 
 porations. ^j^^^ proceedings, in the event of an appearance not having 
 been duly entered, may be served on the agent of such 
 corporation, at any branch or agency thereof, or on any 
 station master of any railway company, or on any telegraph 
 operator, or express agent having charge of any telegraph 
 or express office belonging to such corporation ; and any 
 such station master, operator or express agent shall, for 
 the purpose of being served with a writ of summons issued 
 against such corporation, or any paper or proceeding as 
 aforesaid, in the event of non-appearance, be deemed the 
 agent thereof. "I. S. 0. 1877, c. 50, s. 22. 
 
 See notes to the preceding Rule. 
 
 Service aR 
 provided 
 by any 
 special 
 Htatute. 
 
 200. Where, by any statute, provision is made for 
 service of any writ of summons, bill, petition, or other 
 process upon any corporation, or any society or fellowship, 
 or any body or number of persons, whether corporate or 
 otherwise, eve'-v writ of summons may be served in the 
 manner so provided. J. A. Rule 42. 
 
HEUVICE OUT OF ONTAIIIO. 290 
 
 Siiiiir UH KriK. KiiU' 1HH3, K. tu\ lant clmiMf. Rule 870. 
 
 A iiukIi' iif Ncrviii^f inmiMiiiifN iiuMirpnnth'd liy mjmkmuI Act imkI hy IfttciN (',,m. by 
 iiiti'iit w.is foniiiTlv iiii)\i(|i'(l ill till' liiMc of I' ii'piii'iitioiiM ci'fiitcil l)v rroviiiciiil hittorn 
 'luthdiitv In- H. M.'(». 1M77. c Mil, m. 4;». mid c. ITMI, s. (Ml, l.iit tlicHc McctioiiM putoiit or 
 liiiv.. nn't l«'.n ,.oi,s.,li<lat.'(l in tlu- H. S. ( ). 1SH7. «<•<• K. S. f". v. IIH. s. 4-j ; Hl'i'clal Art. 
 c. 110, s. (il!, iw to i'i)iii|)iuiit's iiii!or|iiiriit««(l liy the iiutlinrity «if tlic Doiiiiiiinii 
 riilliiuiiflit ; iiiid J/', c. 124, MS, l,'{ imd Hi, uh tu IiisiimnccCuliipaiiifM. Sec ivlmi 
 W'liitf V. L'lii'l mil/ U'alii, rti:, fVi., W. N'. 1H«.{, 174, and //mrri/ v. Ilmirn, 
 liOiit. Ap|i. !ll. 
 
 270. In case nx\ action ufjainst a corporation is hrouf^lit f^' rvicu in 
 ill Ontario on a judgnicnt or decree obtained in the Pro-tino'i'ioc"" 
 vince of Quebec, service of process on tlie officer or ollicers ^"''•""®""'- 
 thereof iiaiiu d in the Act, incor))oratij;c snch corpo a- 
 tion, or in case there bo no officer named in the said Act, 
 then service of process accordinj^ to the law of the Pro- 
 vince of Quebec, shall be held to be personal service. 
 11. S. 0. 1877, c. 50, H. 147. 
 
 Sw Vinirt V. S,',n, 32 U. C. C. P. 148. 
 
 (ii) Service out of Ontario. 
 
 Corap. R S. 0. 1877, c. 50, s. 48 ; Eng. R. 1875, 0. 2, 
 r. 4 //*., 0. 11, Eng. R., June, 1876, K. 5 ; Con. Ridra of 188!), 
 (14; Ont. Chy., Orders 90, 100, 102, 020; Ont. J. A. 1881, 
 Rules 45, 47. 
 
 I'reviously to 2 Will. 4., c. .3.S, a writ from Chancery niight bo Hprved ont of 
 till' jiirixdictioii ; Imt unhws the i>arty scrvwl clios« to a|i|)ear, thfi Hiiit could 
 i.'it \m pifKM'cdcd with as a!,'aiiwt liiin. Thf following .Statntes and OnlcpM 
 Ik'Ii."'"" • tlic mihjcct wcri' HulKsecpicntly pasHBd in England : 2 Will. 4., e. IW ; 
 4 & ,') VViil. 4, f. 82 ; 3 & 4 Vict. c. 1)4 ; 4 & n Vict. c. .V2 ; (4. O. May, 184.5 ; 
 !.")& 1() V'ict. c. 8(), H. 3; Consol Orders, Order 10, rr. (!, 7, etc. The practi- 
 cal effect wiiH that in Kngland the Court of Chancery at the time of the 
 jiassiiiif of the ./iidiraliirr Art of 1873 could Hanctioii service out of the 
 jurisdiction in any suit. Hy the Provincial Htattites affecting the Court of 
 Chancery, and the Orders miule by that Court in this Province, the Court hiwl 
 a like jurisdiction : see Consol C)iv. Orders, !H>, 1(»1, 102, 620 ; 12 Vict. c. <>4, 
 s. !»; 20 Vict. c. m. H. 21 ; C. S. U. C. c. 12, s. 74, (R. S. O. 1877, c. 40, 
 w. !»3, 94, now /{i'l<« 274, 273.) 
 
 In the Coniinon Law Courts, the power of serving a defendant ont of the 
 jurisdiction was governed in England by sections 18 and 1!) of the C. L. P. 
 Act. 18.-)2, and in this Province by the C. L. P. Act, (R. H. O. 1877, c. .W,) ss. 
 4!t, iV) ami .'il . These sections cover two classes — (1) British subjects resident 
 aliroad, and (2) foreigners ; and their oi)erati'"" w.as limited in several resiM'cts. 
 The authority given ))y original .T. A. Itnii'.i 44 and 45 was more e.xtended 
 than that (;iven by the Common Law I^nicedure Act. 
 
 The present /liife.i embrace all the cases in which it seeins intended tiiat the 
 jurisdicidiiof the EnKli:*h High Court should for the present be exercised ; 
 :in(l thty will probably include all whicli the Court in (intario will ordinarily 
 •anctioii. 
 
 In England it has l)een held that the i)i'ovi8ions of the new Riilcii are exliaus- 
 ''/''l*" '^^''" though under any fonner jjractice process might be served out 
 "i the jurisdiction it will not now Xm allowed unless the case falls within tliese 
 A !(/«.■ Re icuijer, 22 Cli. D. 8«. 
 
 .Jurisdic- 
 tion Ijefore 
 Jud. Act. 
 
 Jurisdic- 
 tion undej- 
 tlie .Jud. 
 Acts. 
 
300 COMMENCEMENT OF ACTIONS. 
 
 .Ilule270. In Ontario, liowever, tiie original J. A. Jtiilc 47, contemi)lat<'(l tlie I'xerciw 
 of any otlusr iK)wers theretofore poHseHwed by tlie CourtH. Tiiat /tulf has Ix-en 
 omitted in tlie Consolidation of the RuIcm because all the Acts and Jtuin 
 which conferredj urisdiction or regulated the ))raetice in former ('(mrtshave 
 now l)een consolidated in the K. S. O., or Con. Jiidfn : see Act ss. 2(1, 21, 23, and 
 JUdcs 273 and 274. 
 
 The original J. A. Riilf 45, followed the corresiMmding Eng. Kiiles in force 
 j)rior to 1HH3. In 1SS3 the Eng. Rule having been found defective a new Rnli 
 was passerl. No particular inconvenience was experienced in Ontario under 
 Jlidf l"), Imt in the ])re.';ent Consolidation, the English Rule of 1 HH;{ has Wii 
 .adopted instead of .1. A. liulc A't, as being jjrobablv more coiniireiicii.sive, and 
 for the sake of uniformity. The clause 45 (<•) wliich Wiis ...it contained in tlie 
 Eng. Rules of either 187.5 or 18S3 (being taken froni R. H. O. 1H77, c. 50, s.s. H) 
 and 51), has, however, been drop]H!d in ado]>ting tiie Eng. Rule ; .see Irivin v. 
 Broini, 12 P. R. (i.3!). It had been often usefully !i.))plied. 
 
 Ui (lerEng. The effect of the Biilis inOntario is made slightly different from that of the 
 Jud. Act. English Rules. Under the latter no writ which, or notice of which, is inttmdwl 
 to be .served out of the jurisdiction, can be Issued without the leave of tlie Court 
 or a .Tudge {Jiii/c (J). Leave to issue and serve the writ may be asked for (in 
 the same motion : Yoiin;i v. BriLtucii, 24 W. R. 110: ICh. I). 277; Trnill \. 
 P<trtfr,\ L. R. Ir. (M) ; or .separately: Stiijawl v. StiijanU, 1!) Cii. 1). 4(iO;i»nd 
 in Ciuimbers : 11/. The application is not one which can be entertained hy a 
 District Registrar, or a Master, (Eng. Rules 1883, 4()(i and 745), and h.w l)een 
 regarded by one .Iudge(V.-C. Hall) as of such im|Kirtancethat he riirectwlthat 
 in all cases in his Court he should be personally consulted : TutUnhmn v. Burn, 
 12 Cii. I). 7!>8. See, liowever, Utiijand v. Stiijimd, xuirrn. 
 
 An affidavit is necessary in .ill cases showing the cause of iiction, wiiere it 
 arose, .and .iffirming the truth of the facts constituting the cause of action : see 
 (ircot Ai'ntrdlinr, Minhuj Cn. v. Martin, 5 Ch. D. 1 ; Si)cirti'\ dr. v. ItriiijmyTt 
 CI). D. 215 ; i'.tid stating the amount or value of th(( jirojierty in (|iiesti(m, the 
 l)lace whi're the defendant may \w found, and whetlier or not the defendant is 
 a British subject. 
 
 Practice in Under the Ontario RidrK it is not necessary to obtain leave to issue or serve 
 
 Ontario- the writ (though that course may l)e pursued), but an order .allowing the service, 
 
 after it has l)een effected, will l)e niiide upon pr(H)f that the .service was dnlv 
 
 made, and that the case was a proper one for service out of tiie Province under 
 
 the Rid,'^ : Rule 274. 
 
 It was not the ])ractict' of the fonner Court of Chancery to reipiire servicein 
 such case to be allowed, but if no answer was filed the jilaintiff JLid t<i move 
 in Chambers to take the bill pro coiifiMo. Tlie affidavit usually necessary on 
 such motion was nuirely to establish the fact of the service and that the \wmta 
 served was really the defendant. As to the mode of identification ; see Armmr 
 V. Rohirtxon, I'Chv. Ch. 2.52; SfU.ion v. Kennedy, I Cliv. Ch. 2.S(i; AV/m. 
 Hunt, 2Chy. Ch. ,3!)5. 
 
 Affidavit Such an affidavit is still retpiired under the new practice ; and the affidavit 
 
 required. Hhould .also show that ftrinvi facie the |ilaintiff has a go(Kl cause of .u'tnai 
 within the Ride.-<, as is in England necessary on apjdying for leave to is.sm'iuid 
 serve tli<^ writ : see (''retif Aiistndiaii .Minimj Ca. v. Aliirtiti, 5 Ch. D. 1. Under 
 the analogous practice formerly in a Common Law action of an a|iphciitionfor 
 leave to jiroceed in default of apjiearance (omitted from, and rejiealed, by the 
 R. S. O. 1W7, and held to In- sujierseded bv the original Rule 48, now 274, in 
 Loudon (/iiarantee Co. v. ShiehL, Mr. Dalton, 2nd Sept., 1S81 : Murtiii \: 
 Lnlt'ertu, » P. R. 301) ; an affidavit was recpiired, to satisfy the Court that the 
 |)laintiff had a good cause of action : see II. S. O. 1877, c .50, ss. 4!lan(i .')!. 
 
 The affidavit need only establish a prima facie case, but it should lie 
 "candid" : see //ardini/liam v. Runni, 24 Sol. .lour. .30!). An order, it nil'. 
 allowing service out oif the jurisdiction was discharged u|Hin its lieiiig snowii 
 that the affidavit on which the order was obtained contained iiiisstuteiiumtii of 
 fact, which had the effect of showing the plaintiffs to have gixKl cause of action: 
 BepidtUr of Peru v. Dreyfm, .55 L. T. N. S. 802. The affidavit may he made hy 
 
*ir'',-p^ 
 
 SERVICE OUT OF ONTARIO. 
 
 301 
 
 Service of 
 proceeding 
 other than 
 writs of 
 Bummons 
 out of the 
 jurisdic- 
 tiou. 
 
 the «o!iciti)r or any one who has a knowlMlge of the facts. Identifying a cojiy Rule 270, 
 
 of the statt-ini'iit of claim is not enough ; tlm material allegations contained in 
 
 itasto till' contract, etc., must be sworn to : Orca/ Aimtralian, etc. v. Martin, 
 
 mil. ; P(rkiM V. MinniHsippi, etc., Co., 10 P. R. ]!(8; Soriete, etc. v. Dre-'iis, 37 
 
 Ch U. 215. It is not necessary to use the words "there is a cause of action " 
 
 if the facts sworn to shew it : Finolvr v. Barstow, 30 W. R. 113, 20 Ch. D. 240. 
 
 An affidavit for leave to serve a writ where the plaintiflf prefers that course 
 slimild \» entitlfid "In the matter of an intended action tetween, etc.": 
 Yoiiny V. Briixseii, 1 Ch. I). 278 ; lilakc v. Lenr, G L. R. Ir. 470; and must 
 nhew a pniiw facie cause of axstion within this Hide. 
 
 Wliat documents or iiroceedings other than writs of summcms may l^e served 
 out of the jurisdiction was originally left in some uncertainty. It is held in 
 England (under R. H. C. 1883, O. 11, r. 1) that service ()f an order or notice of 
 an order out of the jurisdictum is a (juestion of jurisdiction, not of practice, and 
 the Court can only order such service under statutory authority or Rubx having 
 the force of a statute ; and that there is no jurisdiction to order service of an 
 oriifinating suinnions out of the jurisdiction, it lnung held is the cor- 
 resiKmding English Order is the only one dealing with service out 
 of the jurisdiction, and that it apidies in tenns only t'; writs of 
 summons : lie Buxjield, Whdieji v. Btixfiehi, 32 Ch. I). 123. Leave was 
 onthisgnmnd refused, in iJc Brimdon, 54 L. T. N. S. 128, a .summons to tax ; 
 ReAiKjlo African S. Co., 32 Ch. U. 348, a notice of motion to v/ind up a Co. ; 
 aud Re Jellanl, 3!t Ch. D. 424, a petition under the Trustee A'jts for payment 
 of money out of Court. 
 
 On the other hand thiM^ontrary was decided in He Pepper, y2 \V. ¥. 707; 
 50 L. T. N. S. ■WO ; ,53 L. .). Chy. 1054, in the case of an originating svmnions 
 and it is clear tiuvt the Biden ajtply to servicer of a notice to a "third party " 
 (under Uulrn 328 and 321)) if out of the jurisdiction : Siraiixen, etc. v. Duncan, 
 1 q. K I). ()44 ; JJuhoat v. Macphernon, 23 g. IJ. D. 340. In Coll it v. Bohim, 
 W, N. 1880, 111, a i)etition for i^>aynient out of Court was allowed to be served 
 on jMirties out of the jurisdictuni, and in i'redit HeruiideHxe v. Van Weede, 
 21J. B. D. 171, a claimant out of the jurisdiction was allowed to be served in 
 interpleader proceedings : but in Itc Brandon, 34 W. R. 352, it was held that 
 tiuB case slioiild not be extended. 
 
 Notice of an ap|M)intment to settle a list of contributories, in the winding up of 
 a ctinipany, served on contrilmtories out of tht; jurisdiction, by ]K>.sting to them 
 under the Conipiinies Act was held to be g(M)d notice to them: He Nathan, 
 Smiwn <{.- Co., 50 L. T. N. S. 05 ; 35 Ch. D. 1. 
 
 Rule 271 iias, in the revision of the Rules, been expressed so as to apply to all 
 Jocumeiits l)y which a matter or proceeding is commenced. In this respect it 
 differs from the previous Ruk and tlie corresponding English Rule of 1883, R. 04. 
 
 Leave to serve a count) 
 granted in IdLnckie, VV. 
 
 I olaim on a third person out of the jurisdiction was 
 N. 1880, 12, but refused in Pottem v. Mdler, 31 W. R. 
 
 The Court is not bound to allow service m cases within this Kn'e, but has a 
 discretion on a consideration of the merits : Society Wn^rcde de Paris, v. DreiifuH, 
 SrCh. D. 215. 
 
 If the case is not one in which service should Im* allowed, the pi-ojier course Motion to 
 I", not to raise tlie question by statement of defence, but to move to set aside ''6* iside 
 the service or to rescind the order allowing service if an order has been made : service. 
 PKtton v. Lainmt, 1 Ex. D. 301 ; Boyle v. flicker, 30 Ch. D. 240. 
 
 Where tlie()rder giving leave to serve out ot" the jurisdiction had lieen made, 
 amotion against it on the ground of irregularity made after the lapse of a year 
 »af held to 1m. t<H) late : Rei/nuldi, v. Coleman, 30 Ch. D. 453. 
 
 Where defendant moves against the order or to set aside the service, affidavits 
 »re admissilde to try the ((uestion whether a cause of action arose within 
 the jiinsdiction, or other circumstances exist which are necessary under link 
 -71 to give the Court jurisdiction, though not to try the merits of the case : 
 
«02 
 
 COMMENCEMENT OP ACTIONS. 
 
 Hule 270. 
 
 m 
 
 mm 
 
 m 
 
 'Substi- 
 tuted 8or- 
 vioe. 
 
 i 
 
 Foreign 
 Corpora- 
 tions. 
 
 Notice in 
 lieu of writ 
 
 Fowler x. Barxtin:, 20 Ch. D. 240 ; overruling on this iKjint fiVrn* ^m«(/t(/i((« 
 (fold Miiiinr/ Co. v. Marthi, o Cli. D. 1 ; see also Thuiiuis v. llamilUm V. 
 q. B. D. rm -, SocUte, etc. V. Dreijfun, 37 Ch. D. 21.5. 
 
 Where a defendant was resident in Scotland or Ireland the omission (if 
 any statement that he was a British subject was held immaterial : Fowler \. 
 Bnrstow, nupra. 
 
 Where there has been a conflict of evidence as to whether the cause of 
 action arose within or without the jurisdiction orders have been made similar 
 to that in Diamond v. Sutton, L. R. 1 Ex. 130, t.c, the service to stand, 
 plaintiff undertaking to be non-suited if no cause of action witliin the juris- 
 diction be shewn at the trial : see O'Uonokoc v. W'ilei/, 43 IF. C. il B. 350; 
 Nott'Kie V. Aitken, 71 L. T. Jour. 32*5, 2,5 Sol. Jour. 834 ; see also Foicler v. 
 Burxtow, 20 Ch. D. 240; Shmrimn. v. FituUaii, 32 W. R. 122 ; Thomas v. llmnil- 
 ton, 17 ii. B. D. .5!)2, reversing the judgment of the Court below reix)rtt<l in.'w 
 L. T. N. S. 21!) ; but see Perkins v. Alississippi, supra, where the iiractice was 
 <lisapi)roved of. 
 
 It has been held that an api)earance by defendant does not esUip him from 
 moving to set aside a writ and service as contrary to this Ride : see Whitt v. 
 Maedtrcijor, Mews Dig. 1882, 342, sed qurrre. 
 
 Objection to an order for service was held to have been waived by api)earing 
 on a motion for injunction and argiiiug the merits : Boyle v. Sucker, 3!) Ch. D. 
 249 ; by taking out a summons for delivery of a statement of claim : Fry v, 
 Moore, 23 C^. B. D. 398 ; and by applying for .security for costs : Lhoncux <t Co, v. 
 Ifwif) KoHji, etc., Corp., 33 Ch. D. 44(> ; i)roceeding to examine witnesses after 
 objection to the jurisdiction jver-ruled : O'ui/ v. O T. Ry. Co., 10 P. R. 372. 
 See also notes to Rule 277. 
 
 Under the Irish Rules it is held that a writ iiitended to be served substitu- 
 tioiially upon a j)erson within the jurisdiction may be issued without leave 
 though the defendant he resident out of the jurisdiction : Lewis v. Herberts, 
 10 L. R. Ir. 340 ; but the contrary has been held in England : Fri/ v. Mom, 
 23 C^. B. D. 39.5, where it waii said that holding otherwise would enable the 
 Rule to be evaded, which requires leave to be obtained. Where a writ has 
 Ixsen pro|)erly issued against a defendant out of the jurisdiction, an order for 
 substitutional service within the jurisdiction 'nay be obtained : Ford v. Shep- 
 hard, 53 L. T. N. S. 5fi4. 
 
 Probably in Ont. an order for substituted service can only be obtained incase 
 the subject matter of the action makes Rule 271 applical)le ; and the time for 
 apiKjarance, etc., will be the same as if the defendant had been served out of 
 the jurisdiction. 
 
 There cannot \)e substituted service of an ordinary writ on a defendant who 
 cannot be served by reason of his Vwing out of the jurisdiction : Sofitte Indm- 
 fria/r, etc., v. Ctmipanhin Portmfueza, etc., W. N. 1889, 32; /'/// v. J/wrf , 23 
 il B. D. 3!K) ; HiUiiard v. Snuith, 30 W. R. 7 ; see Field v. Bennett, 5(iL. J. 
 ^^ B. 89. Stewart v. Baitk of kni/land, W. N., 187<i, 203. 
 
 A foreign corjKjration is within the Rules and may l)e served abroad : 
 Scott V. Royal Wtix Candle Association, 1 U. B. D. 404 ; W'estumn v. Aktii- 
 Itol'il/ct, etc., Snickcrefabrik, 1 Ex. D. 237, but not a foreign sovereign or 
 state: Stroushere/ v Costa Rica, 29 W. R. 125; see also Sedijirick v. Yalnit 
 Minin;/ Co., 35 W. R. 780. 
 
 Service of process ujKm a defendant not a British s\il)ject might involve 
 uujdeasant questions cf jurisdiction. In such a case, therefore, notice of the 
 wnt, and not the writ, is served : Beddimiton v. Bcddin(iUin, I I'. !)• '*2'il 
 W'estman v. Aktieholui/et, etc., 1 Ex. 1). 237; the Court having jurisdiction to 
 so order service : Jmiies v. Despott, 14 L. R. Ir. 71 : anrl that |iiiictiee apiiw' 
 to the Chancery Division as well as to the other Divisions : Re I/oiranl, Pimi'ii 
 v. Camphauseii, lOCii. 1>. .5rH». Where tht; writ was served instead of notice 
 thereof, it was liehl, under the similar practice before the Judicat\ire .Vet, that 
 this was an irregularity which nould not In* cured by anieiidiiieiit, and the 
 service wa.M jiccordinglv set aside : Henderson v. JIalt, 8 1*. H. ^53: in '""■■ 
 itson v. Fiihre, B. D. (i, :^uc•ll service was held to Ije a nullity. 
 
SERVICE OUT OF ONTARIO. 
 
 303 
 
 271. Service out of the jurisdiction of a writ of sum- ^^^ 271. 
 mons or notice of a writ of summons [or other document by o;7iIrisdic- 
 which a matter or proceeding is commenced] may be allowed *'"" 
 by the Court or a Judge whenever— [Eng. R. 1883, 64, ^^^ ' * ^ * *^ 
 (a), (ft), {c), id), (e), if), ig)] . 'jj ^/'^''^ ^f 
 
 The words in brackets are not in the English Rule. y 5 
 
 [a] The whole subjeet-mciUer of the action is land situ- Laud in 
 ate within Ontario (with or without rents or profits) ; or ^"**"">- 
 
 (fc) Any act, deed, will, contract, obligation, or liability 
 affecting land or hereditaments situate within Ontario, is 
 sought to be construed, rectified, set aside, or enforced in 
 the action ; or — [Ont. R. 45 (rt), altered] . 
 
 A statement in the nature of slander of title, made out of the jurisdiction, 
 concerning proi^erty within the jurisdiction has been held not to be an act or 
 thing affecting such property within the meaning of this clause : Cmey v. 
 ilmott, 2 C. P. D. 24, where the Rule was held rot to apply in a case in vi'hich 
 tiie defendant in Ireland said that a ship in England was unseaworthy. 
 
 A slander not actionable in itself without special damage, spoken out of the 
 jurisdiction, ))ut resulting in s|)ecial damage within the jurisdiction, was not 
 within the original iJit/c ; Brve v. Afarcscaux, 7 Q, B. D. 434, and does n.^tseem 
 to fall within any clause of the new Ruh : see Kaye v. Sutherland, 20 Q. B. D. 
 
 147. 
 
 (c) Any relief is sought against any person domiciled or 
 ordinarily resident within Ontario ; or — 
 
 Unless an action for a personal wrong comes within this clause it would not 
 seem to be covered by any of the clauses of this Bide. 
 
 It has been held in England that an Admiralty writ in personam cannot be 
 issued for service abroad in resjiect of a wrong done on the high seas. The 
 phrase in tlie English Act corresjionding to " within Ontario " is " within the 
 jurisdiction," which was construed to mean " within the territorial jurisdic- 
 tion": Re Smith, 1 P. D. 300; The Vivar, 2 P. D. »» ; which does not extend 
 ueyond low water mark : //arris v. Owners of the Franamia, 2 C. P. D. 173; 
 seeifc;/. V. Kojn, 2 Ex. D. 03. 
 
 A company with a registered office in Scotland and branches in England, 
 »M held not to be domiciled or ordinarily resident in England : Jones v. ikot- 
 tiih Accident Insurance Co., 17 Q. B. D. 421 ; sed vide InreBurland, Jiurland 
 V, Bro:d,urn Oil Co., 41 Ch. D. 542. 
 
 (d) The action is for the administration of the personal 
 estate of any deceased person, who at the time of his death 
 was domiciled within the jurisdiction, or for the execution 
 (as to property situate within the jurisdiction) of the trusts 
 of any written instrument, of which the person to be served 
 18 a trustee, which ought to be executed according to the 
 law of Ontario; or [Newi . 
 
 Taken from Eng. Rules of 188?. 04 (d). 
 
 
 '-*.(! 
 
m: ■ [■ 
 
 804 
 
 COMMENCEMENT OF ACTIONS. 
 
 Rule 271. 
 
 3 
 
 (e) The action is founded on any breach or alleged 
 breach within Ontario of any contract wherever made, 
 which, according to the terms thereof, ought to be per- 
 formed within Ontario ; or— [Ont. E. 45 (/>).] 
 
 It is not iieceHsary that a contract should expressly state that it is to lie |)er- 
 formed within the jurisdiction. It is sufficient if this apjwars from the general 
 terms of the contract having regard to the surrounding circumstances : liciindiin 
 V. Colenum. 3(> Ch. I). 4.53. 
 
 It was held in Morih v. Stvphnn, 30 W. R. 779 ; 58 L. T. N. S. H.W, that an 
 action to enforce a cliarge obtained by a jiidgment creditor im<ler a statutory pro- 
 vision (1 it 2 V. c. 110, s. 14), in that behalf, does not fall witiiin this clause, 
 nor any other clause, of this Knlc, and that therefore service of a writ in suoli 
 an action out of t!ie jurisdiction is not authorized. 
 
 No (lifflctilty can now arise? such as used to arise under K. S. (). 1877, c, 50, 
 s. 4!), as to the meaning of a " cause of action which arose in Ontario " : »(« (Jild- 
 crslirvi- V. MclJoujiul/, 31 C. P. I(i4, KMi. The breach within Ontario is the 
 test of the ap])lication of the Jiulc. 
 
 Service wriK allowed. — Where the plaintiff complained of an agreement made 
 in England as infringing on his rights under an agreement made in India, be- 
 causf' the action Ijoth " affected " a contract mtule within the jurisdiction, and 
 was in it'spect of a breach within the jurisdiction, of a contract unuh^ abroad : 
 //(iiTiKV. Flemiufi, 13 Ch. I). 2()8 ; where a contract made in England by a defen- 
 dant resident in Ireland, to pay for a rink constructed in Dublin, wii-s broken by 
 non-i)ayment to the plaintiff in England: (tirin v. Brown imj, S4 L. T. X. .S. 7(iO ; 
 where delivery of goexls, for wliioh jiaynient was sought, was sworn by jilaintiff 
 to have taken place in London, by the London house of the phiintifT and nut 
 by his Paris house : Thouwx v. J/omit/uii, 17 ii- B. D. .5<.t2 ; 55 L. T. N. S. 
 21!t. 
 
 Where goods were furnished by an English finn to defendants in Man and 
 no i)lace for payment was named it was presumed that it was to be in Kngland 
 an(f the breacli therefore t(K>k place there: llnhoj v. Snufell Minimi Co., 2W 
 
 q. B. I). 162. 
 
 Service wtis not «//oh7y/.- Where the writ was indorsed with a claim to 
 restrain a ship-owner from dealing with a shij) in iH)rt at Canliff contrary to a 
 charter party entt-red intf) in Scotland iM'tween a i)laintiff and defendiint who 
 both resided in Scotland : Kx [xnie A/cPhtiil, 12 Cii. D. (i32 ; where the claim 
 was by a c'x^k/ 7»f trust resident in England for administration o? trusts of 
 Scotch property by Scotch trustees ; ('rvxnwell v. I'urkev, 11 Ch. 1). (101 ; where 
 mortgagees of a ship and her freight in an action against second mortgagees, 
 discovered that some freight hiul |)revi(msly to the suit been collected by 
 brokers in Antwerp, who claimed to retain the money against a .lebt due tn 
 them by the second mortgagees. The plaintiffs obtained leave to serve the 
 brokers, but the (U'der was cm motion set aside, the Court h(d<liiig that the 
 right to the freight was claimed by Iw-ing entitlefl as mortga^'ees to take [jos- 
 session of the ship and its earnings, and not by seeking the enforcement of any 
 contract : McStephenn v. ('arnenie, 28 W. K. ;»") ; 42 L. T. N. S. 3(Ji). 
 
 Where b^y the contract, defendants, a steamship Comjiany, were exemiited 
 from liability for danii^i^e for loss arising l)eyond their Wxw of steainKlii|)», and 
 there was a breivcii alleged within Ontario but l>eyond thi! saitl line of steam- 
 ships, in not delivering the subject of the contract, it was held that as no 
 damage would result from the bn^ach, though the case was technically within 
 this Rule, discretion, if any existed, should l)e exercised in refiming to allow 
 the service : I'vrkinit v. MiHHixHi/tpi, 10 P. R. 1!(8. 
 
 .Service was not allowe<l in an action for wrongful dismissal where the 
 apiMjintment was in (ilasgow and the letter of dismissal was |M)ste(l there. "|w 
 defendant was a Scotch coal merchant, who verbally ai>iHjinted the plaintilf 
 commission agent in Ireland. The |K>sting of the lettt^r was iield to be the 
 act of dismissal : Hamilton v. Burr, 18 L. R. Ir. 297. 
 
SERVICE OUT OP ONTARIO. 
 
 805 
 
 Under the English Rules of 1875 and 1883, if defendant is resident in Scot- Rule 27X. 
 land or Ireland, the Court has to consider theconn)arative cost and convenience 
 of procwiling to England, even where the case otherwise falls within the Rules : 
 nee Tottenham v. Barry, 12 Ch. D. 707 ; Wood v. Mclnnes, 4 C. P. D. 07 ; 
 iknlmll V. MarKhall, 38 C!h. D. 330. 
 
 A fdrelKiur resident in the Province, or a foreign corporation having a place 
 ()f busiiifSH ill the Province may lie served without any leave though the 
 contract wan made and breach thereof occurred out of the jurisdiction : see 
 I'almer v. (ioiild'it Afanufacturimj Co., W. N. 1884, 03 ; and notes to Rules 207, 
 
 269. 
 
 (/) Any injunction is sought as to anything to be done 
 within O'^tario, or any nuisance within Ontario is sought 
 to be prevented or removed, whether damages are or are 
 not also sought in respect thereof; or [Ont. 
 
 K. 45 (c), id).] 
 
 In Tozirr v. Hawkins, 15 Q. B. D. 080, it was held under the corresponding 
 English Rule that the Court might allow service out of the jurisdiction 
 of a writ claiming an injunction to restrain the defendant from 
 sending lilwls to the plaintiff, resident within the jurisdiction, where the 
 defendant dcH's not state on affidavit that he never comes within the jurisdic- 
 tions. 
 
 See also Lkkm v. Haldle, 52 L. T. N. S. 790 ; Speckhart v. Campbell, W. N. 
 1884, 24. 
 
 ig) Any person out of the jurisdiction is a necessary or 
 proper party to an action properly brought against some 
 other person duly served within the jurisdiction. New. 
 
 Taken from Eng. R. 1883, O. 11, r. 1 (9). 
 
 In an action against defendants in London, for breach of warranty of author- 
 ity, their |)rinci|)als out of the jurisdiction having repudiated a ctmtract abroad 
 »b made without authority, it was held that the fort'ign principals were projx^r 
 parties and service on them was allowed abroad : Masscy v. Heynes, 21 1^. B. D. 
 
 See also The Stcaviship Shanemore, Limited v. Thompson, 52 L. T, N. S. 562 ; 
 LitboH, etc. V. Hcddle, Ih., 790, 
 
 Where the land in question was out -of the jurisdiction, but some of the 
 parties within, lilierty was granted to serve a defendant out of the jurisdiction : 
 Jtnneij v. Mackintosh, 33 Ch. D. 695. 
 
 In Harvrii v. Douf/hcrt//, 50 L. T. N. S. 322, an action for breach of trust was 
 brought against the executors of a testator dying in England, two of whom were 
 in Ireland and one in England. The action was to com|)el them to replace 
 assets invested in Ireland. Service of the defendants resident in Ireland was 
 allowed : see also Re Lane, 55 L. T. N. S. 149. 
 
 In Lightou'hr v. Lightowler, W. N. 1884, 8, an order was made where the party 
 out of the jurisdiction was a partner of the defendant already served, and the 
 action was for sjiecilic jHirformance of an agreement to convey the iiartnership 
 
 On an application to allow service on a party served abroad under this claupc, 
 l!*!^ '"' shown that there is some other party within the jurisdiction who 
 has been H»>rved and against whom substantial relief is claimed: Yorkshire 
 Tmncrij ('„. v. Eolint<m, 54 L. J. Chy. 81, 30 W. R. 102. 
 
 J.A. 20 
 
•1 
 
 306 
 
 COMMENCEMENT OF ACTIONS. 
 
 *J^«" 272. Notice in lieu of a writ of summons shall he served 
 
 Service of in the Same manner as writs ot summons are served. J. A. 
 
 notice in l?„lft 40 
 Jieuofwrit. A«'Ulb *». 
 
 Sw) Kn^. R. 1875, O. 11, r. 5 (1883, R. 70) and the notes at tlie U'^iiining df 
 this heading. 
 
 .Service of the writ instead of the notice thereof waK held not to 
 be an irregularity, but a nidlity, and the service was set aside : hi'vitmii v. Fabn, 
 21 (i. B. D. (i ; also Unulcrmn v. Hull, 8 P. R. 353. .V.-. to when a iiotitc is to lie 
 served in lieu of a writ see niipra \>. lMf2. 
 
 •Other 273. Where a party to any action or matter is absent 
 
 proceedinB ^^'^^ ^^^^ Province or cannot he found therein to be served, 
 
 HbRmnde- ^'^'^ Court may authorize proceedings to he taken against 
 
 fendant. him accoi'diug to the i^ractice of the Court in the case of 
 
 a defendant whose residence is unknown, or in any other 
 
 manner that may be provided or ordered, if the Court, 
 
 under the circumstances of the case, deems such mode of 
 
 proceeding conducive to the ends of justice. 11. S. 0. 1877, 
 
 c. 40, s. 94. 
 
 The Act from which this Rule is takeji was held to aiiply to ciuses where 
 defendants are very numerous or where they reside out of trie jurisdiotioii at it 
 very gi-eat distance, or wher«^ the residence is not known at all, or where fnflii 
 any other cause it would be difficult or exjiensive to effect a servict! : i'lammw 
 C<imphrll, 2 Chy. Ch. 25. Advertising has lieen dis|R!iised witli wlieie itwdulil 
 be useless, and service allowed by mailing to the address of defendant's hnrther 
 resident in the Province, though not in any way an agent of tlefeiulftiit ; 
 Cooper V. Lain 1 Cl'.y. Ch. 3(j3 ; see also Dolimn v. Murnlmll, !l P. K, 1, 
 
 M. ! 
 
 Service 274. It shall not he necessary before serving a writ, or 
 
 ou* pr^-' ' notice of a writ [or copy of any other document hy which a 
 
 niay'be'^'^'^^' matter or proceeding is commenced], to apply to the Court 
 
 allowed, or a Judgc to allow the service ; but in case proof is given 
 
 to the satisfaction of the Court or Judge that the service 
 
 was duly made and that the case was a proper one for 
 
 service out of the Province under the preceding Kules, the 
 
 service shall be allowed. J. A. Rule 48. I\. S. 0. 1877, 
 
 c. 40, s. 93. 
 
 The words in brackets are not in the original Rule : see note mipra p. .301. 
 
 This Rule does not preclude an ajiplication for leave tf) serve the writ, though 
 in ordinary cases a motion to allow a serviwj already effected will 1k^ sufficient 
 See also n()te to Rule 270. 
 
 The practice under this Rule suiKsrseded the former |)ractice, under R. S. 0. 
 1877, c. 50, ss. 49, 51, of applying for leave to pn)ceed where service hwl lieen 
 effected out of the jurisdiction : Limdon, etc., (lunretntee Co. v. Hhiehh, Mr. 
 Dalton, Ist Sept., 1881 ; Martin v. Lafferty, \) P. R. 300. 
 
 Where an order for leave to serve the writ has been obtained it would ftPF**! 
 to 1)6 unnecessary to a])ply after the service has been effected to have it allowed 
 or to obtain any further liberty to sign judgment. A doubt on the jioint aroi*' 
 in England owing to the language of the fonn curre8|)onding to Fonii No. *• 
 
■ '■'M 
 
 APPEARANCE, ETf!. 
 
 307 
 
 Thf latter, however, does not contain the words creating the doubt in England : Rulea 
 me Scott V. RoiKil Wax CmuUf Co., 1 i). B. D. 4<)4 ; Bwon v. Turntr, 3 Ch. D. 278, 276. 
 275 ; but {lerliaim un Higning judgment an affidavit of identification may be 
 rK|\iir<fl. 
 
 4. Appearance, etc. 
 (i) General Rules. 
 
 275. Wli^p a defendant is served within Ontario, and service in 
 not in Algoma di* ^hiidder Bay, he shall appear within ten ""***^ "' 
 days, including the day of service. , 
 
 (a) If served within Algoma^or Thunder Bay, he is toAigomaor;^ 
 have thirty days in an action for the recovery of land, andBay.'"'^' 
 twenty days in pther actions, after the service, w e c ept 
 wlieite lie i^ served betweeh the first day of November and 
 the 30th day of June, or on either of said days, in which 
 <!a8e he shall have an additional period of ten days. 47 
 V. c. 14, 8. 7. 
 
 276. Where a defendant is served out of Ontario he TUne for 
 shall have the time following for entering his appearance appear''' /. 
 and delivering his defence and both proceedings shall be aeUverlnx / •? -'Z 
 taken within the time named. defence. 
 
 (rt) If the deff^ndant is served within any part of the 
 Dominion of Canada (other than Ontario, Manitoba, Kee- 
 watin or the North- West Territories, or British Columbia), 
 or within the United States of America, he is to have six 
 weeks after the service. 
 
 {h) If served within any part of the United Kingdom 
 (including the Isle of Man and the Channel Islands), or of 
 Manitoba, Keewatin or the North-West Territories, British 
 Columbia or Newfoundland, he is to have eight weeks after 
 the service. 
 
 (c) If served elsewhere than within the limits above 
 designated, he is to have twelve weeks after the service. 
 
 (rf) The writ of summons in such case may be in the 
 form No. 2 in the Appendix, and the statement of claim is 
 to be served therewith. J. A. Rule 46. 
 
 This Rufe varies a little from the former Chy. O. 620, on which it was 
 
 fimnded. 
 
 p'j" *Pplicati<)u in Chambers these periods are frequently shortened under 
 "wc 485 according to the facilities of communication with the place where a 
 flelendant is shown to be residing. Two weeks is ordinarily limited by the 
 
 f^*: 
 
 
 r^^j!^. 
 
 r" 
 
1" r 
 
 
 308 COMMENCEJIENT OK ACTIONS. 
 
 Boles Master in Chambers where the defendant resides in Montreal, and three W(t<k» 
 
 277, 278. where defendant resides in some i)hice in tlie United Htate« not far from the 
 
 lK)nler. Where this course isdesirahh-, an a|>|tlication comhinin^; a motion for 
 
 leave to issue and serve the writ, and to shorten the time for aitjH'aniiiceand 
 
 defence, will In* a convenient procedure. Hee Fonn No. 121 for form of order. 
 
 The statement of claim referred to in clause ((/) means the iileadiii),' so called 
 and not any indorsement, however full, Ujxjn the writ of the nature of the 
 claim : Sumiiicru v. >Siimmcn/, Mr. Dalton, (ith Feb., li*H2. 
 
 By /{iile 483 no pleadings can lie delivered during vacation, excei)t by leave, 
 so tliat where it is necessary to serve a writ in vacation on a defemlant out of 
 the jurisdiction, an aiiplication for leave to issue and serve the writ may be 
 conveniently combined with a motion for leave to deliver a statement of claim. 
 
 How en- 2T7. A defendant shall enter his appearance to a writ 
 of summons by delivering a memorandum in writing, dated 
 on the da)' of delivering the same, and containing the name 
 of the defendant's solicitor, or stating that the defendant 
 defends in person, to the proper officer in that office in the 
 same County where the writ of summons was issued, in 
 which, by the memorandum subscribed on the writ or by 
 the notice of the writ, the appearance is required to be 
 entered, except where by any Rule of Court it may be 
 otherwise provided, or where the Court or a Judge other- 
 wise directs. See J. A. Rules 51, 546. 
 
 Taken from Kng. R. April, 1880, R. G (first part). See Kng. K. 1875, 0. 
 12, r. 5, (1883, R. 77). 
 The fonn of the memorandum is given in Aj)]). No 03. See /{kU 2Wi, 
 
 An ap{)earance entered by tvo solicitors for one defendant is not a nullity, 
 but is irregular : see WiUiium v. Williams, 10 M. & W., 178 ; Walton v, 
 Thompgon, L. R. 6 Kq. 7. If sued in a wrong name defendant should appear 
 by the right one, stating that he was sued by the wrong name : Loimx v. 
 Kilftin, 4 D. & L. 21(5 ; Hnh.sim v. Wiuhworth, 8 Dowl. P. C. CM, otherwise the 
 plamtiff may prtxjeed against him by the wrong name : t'htrk: v. Buher, 13 
 East, 273 ; Williams v. Bryant, 5 M. & VV. 447. 
 
 An apixiarance usually operates as a waiver of an irn'gularity in tlie i)roct*d- 
 ings taken against the defendant : see Oiildm v. lOulcliff, L. R. it C P. 18!) ; 
 PreMon v. Lammit, 1 Ex. D. 302 ; Diamond v. Suttim, L. R. 1 Kx. 131 ; %'< 
 V. Sucker, 39 Ch. D. 24i). Dmt v. Citizinii Ins. Ol, 11 P. R. 513. See, how- 
 ever, Benecke v. Frvsl, 1 Q. B. D. 421. 
 
 Two or 
 more de- 
 fendants, 
 etc. 
 
 is <M 
 
 SJ78. If two or more defendants in the same action 
 appear by the same solicitor and at the same time, the 
 names of all the defendants so appearing shall be inserted 
 in one memorandum. J. A. Rule 59. 
 
 Same m the Eng. R. 1875, O. 12, r. 13, (1883, R. 87) and as Rule of T. T. 
 1858, 2. 
 
 Where several defendants represent one interest (f.ii. trustee and f«»'i" 
 que Irmtj mortgagee and mortgagor, nartners, etc.,) they should apiiearby the 
 same solicitor, and if thev do not, will be allowed only one set of costs : Morgan 
 & Davev, 87 ; see also Barrett v. CamplieU, 7 P. R. 150 ; but where a tnistee 
 has really a separate interest as where he claims that a co-trustee is liable, he 
 may receive a separate set of costs : Webb v. Webb, 10 Sim. 55. 
 
APPEARANCE, ETC. 
 
 809 
 
 anco, where 
 entered. 
 
 279. All proceedings in actions to final judgment shall J^" 
 be carried on in the office in which the appearance is to be Appear 
 entered. J. A. Rule 546. 
 
 The Kng. Rule 187r), O. 22. r. 5 ; 1876, r. 5 ; 18«3, R. 77, are diflFerent. 
 
 250. When an issue is directed to be tried it shall be issue to be 
 filed as soon as settled, and may be filed in the county in*^'*"*- 
 which it is directed to be tried, and thereafter the proceed- 
 ings in the issue shall be carried on in the said county in 
 
 the same manner as the proceedings in an action com- 
 menced in such county. But the Court or a Judge may 
 order otherwise, and may change the place of trial in the 
 same manner and subject to the same rules as in an action. 
 New. 
 
 251. A defendant may appear at any time before judg- whenap- 
 ment. If he appears at any time after the time limited for {Il'ay'be'en- 
 appearance [he shall, on the same day, give notice thereof *«,'|«^j'*n'i 
 to the plaintiff's solicitor, or to the plaintiff himself if he notice is to 
 sues in person, andj he shall not, unless the Court or a ® "'**"• 
 Judge otherwise orders, be entitled to any further time for 
 delivering his defence, or for any other purpose, than if he 
 
 had appeared according to the writ {a) ; and if the defend- 
 ant appears after the time appointed by the writ, and omits 
 to give such notice of his appearance, the plaintiff may 
 proceed as in case of non-appearance. J. A. Rule 61. 
 
 (rt) The Rule up to thirt iwint is irlpntic.il with Kn>f. R. 1875, O. 12, r. ir), 
 {im, R. '.)■>). The reinainrler of the /iiilr is taken from R. S. (). 1877, c. 50, 
 s. til), latt«T part. The words in br.ickets are not in Kn^. Rule of 1883, R. 92. 
 
 For the time limited for apjiearance : see note to Riilr 286. 
 
 A form of notice of ap]>earan(;o will l>e found in App. Form No. 1.3. 
 
 An appear.ince enten!.! while the plaintiff is si^nin^f judgment is in time: 
 Harris v. .l/a^rms, 3 U. C. L. .1. 31. Sw also note to /inh- !), \>. 134. 
 
 If an aiiiK-araiice has lM*n entered, hut the plaintiff nevertheless proceeds as 
 if iiuiit' lia 1 h:-'en entere;!, the ])roceeding's are not null, but merely irregular, 
 and the irrcguhirity may be waived : see Ahiv/er v. Cris/i, Dowl. 3,53 ; Slratuje 
 V. Friviwni, 5 Dowl. 407 ; M(i/i!e v. Witttdijalr, 1 B. & C. 70; but, under this 
 Rule, \yhrn" notice of an ap|)earance, entered after the i)ro|)er time was not 
 given, judgment signed disregarding the appearance was ujtheld : Smith v. 
 MMn, 3 K.\. 1). 3,18 : see also Hunter v. Wilwchum, i) P. R. 305. 
 
 In an action for recovery of land, an appearance by the original defend- 
 ant, after tlie landhird liad Intervened and ai)peared, so as to join with the land- 
 lord in a statement of defence, was held regidar : (/oriwj v. Cameron, 10 P. R. 
 496. 
 
 Althougli an a)>|)earance may, under this Rule, be entered at any time before 
 judgment, yet the defendant may \ie precluded from ])utting in a defence after 
 the projwr time, by the plaintiff noting the pleadings closed under Rule 393. 
 
 See Lmiler v. lluffea, 54 L. T. N, S. 2«4. 
 
 ^ 
 
 
 
810 
 
 COMMENCEMENT OF ACTIONS. 
 
 ^^oM 2H2. The solicitor of a defendant appeariiif; by a 
 
 AddreHBof solicitoi' Bliall state in the memorandum his place of hiisi- 
 
 Solicitor. „ggy J A i^u]g r,2. 
 
 Identical with first part of Kng. R. 1875, (). 12, r. 7, (1HH3, K. HO). 
 
 BoiicitorH tiHii. A solicitor not entering an appearance in pursu- 
 takiiig. anceof his written undertaking so to do on behalf of iiny 
 
 defendant, shall be liable to an attachment. J. A. Kiile 
 
 60. 
 
 ThiN \H til.' Hiiinc UK KiiK'. K. 1«7"), (). 12, r. 14, (ISHS, U. SH), im.l aim. iw* the 
 Ontariu l{ul(^ ;< of T. '\\, i85(>. 'I'lii' |)laintiif may also proceed as on dufault 
 of appeiiraiit't'. /<iili' 252 |)rovi(k's that no servio; of writ Nhull Im' nKiiilMl 
 where the defitndaiit by his Holicitor accepts service, and midertakes tonpi^ar. 
 
 •If a solieitor enters an appearance witiiout antliority it may be (lisclmrKHl 
 with <;()sts. to lie paid hy him : A''' /Jnf/tl, 12 t'h. I). 44!>, See also cases in the 
 note to Hi'lr 25(1, p. 2H7. 
 
 Proceed in jfs hy attachment to comiM^l an a|>pearance to he entered, nmy jut- 
 liapshe iisefidly adopted whi-re it is desired to obtain fnini (lefendaiit a winvcr 
 of some iriej^nlarity : see ('(irrirh v. )'''iiii!/, .lac. 524, or to prevent a ri'liti(?u- 
 tioii of the matter in an action on the .jnd^''ment in another country. Tlif 
 plaintiff should reipiest the defendant's solicitor to enter the ap|M'aranue liffurc 
 moving' to attach : JkciiIih v, Mkiiiiuji, 7 ''ur. .32(>. 
 
 .See also as to the enforeement of an inidertaking' by a solicitor ^ivcn out of 
 Court : Wii'iilliit v. H/vf//, 51 L. .(. (Jhy. 427. 
 
 2S4. A defendant appearing in person shall state in 
 the memorandum his address ; and if he resides more than 
 two miles from the office from which the writ of siiramonft 
 was issued, he shall state in such memorandum a place to 
 be called his address for service, which shall not be more 
 than two miles from such olUce. .J. A, Rule 53. 
 
 Varies, as reg'ards distance, from Kng'. H. 1K75, (). 12, r. H, (1S8H, U. 81). 
 
 Where a party who ap|H>ars in person siibsecpiently appoints a .solicitor, the 
 l)riu;tice in Ireland is to tenter the solicitor's mime on the i-ecord l>y side liar 
 rule for that purpose lief ore any proceed inf,' is takf'n by such solicitor ; ./"/i"- 
 stoii V. r„/,'i,i<ni, 8 h.\U. Ir. 148.' 
 
 Where at an address for service jfi ven by a defendant in person, no one »iw 
 foinid but a housekeeper who refused to receive documents, service of a Miiii- 
 mons under /'ii/c 73i( by ])\ittin({' it into the letter box was held not sntticient; 
 .liminei/ v. Uirin, 28 Sol. .lour. I(i5. 
 
 3S5* If the memorandum does not contain the address 
 of the solicitor or the defendant (as the case may be) as 
 required by the preceding Rules, the memorandum shall 
 not be received; and if such address' is illusory or tictitious, 
 the appearance may be set aside by the Court or a Judge, 
 on the application of the plaintiff; and the plaintiff may 
 be permitted, by the Court or a Judge, to proceed by post- 
 
 Address of 
 
 defendant 
 in person. 
 
 Where no 
 address or 
 improper 
 addresB 
 given. 
 
 ingnp the pro 
 is required to 
 
 .Sec Kn(f. liiile V 
 
 Where a ilefend 
 fiiuiKJ, and there is 
 iKJdress is illusory 
 IS83. 174 ; \V. \. 1 
 :o W. K. 208 ; /•:. \ 
 
 3H0. The 
 
 Form No. !)8. 
 circumstances 
 
 Thp Kiitf. li. l«7i" 
 "may," in the first 
 
 T1m» time for aiip 
 within tile iuris(iie 
 /,'«/« 233, 27.'), and 
 III ciw of service < 
 /f"/( 2711, orany spei 
 tiiiid dates from tlie 
 2('h. 1). 220. 
 
 [a] In case 
 deliver a statei 
 randum of app 
 of such appear, 
 
 Sw! V.ng. Rules 11 
 
 a«7. Upon 
 the officer shn 
 Procedure Booi 
 
 Sfe Imik. K. 1875, 
 f'auKe Book. 
 
 ass. Wliere 
 they shall appc 
 subsequent pro 
 name of the fir 
 
 Samp as Kii^'. R. 
 
 lor the provisioi 
 
 '<«l(3\7 ; and see " 
 
 If one of .several 
 *imst him individi 
 «aiii«t the firm • 
 »9.B.D. 103. K 
 individual partners. 
 
 .Inhere an action 
 *■"'«%, and the i)a 
 
API'EARANCR, ETC. — PARTNERS. 
 
 811 
 
 Rules 
 386-288. 
 
 ingiipthe proceedings in the oftioe where the appearance 
 is required to be entered. J. A. Rule 54. 
 
 SeeKng. Kulc IH?'), (). 12, r. !l (1S8.3, R. H2). 
 
 Whi'ii- a ilffi'iidtuit kIvch an iKldrt'S?* for H<'rvic« ;it wliicli he is not to lie 
 found, lui'l tlicri' i-* no |K'i'«on aiitliori/.t-d to takt! in or forward <liK;uinfntM, snrli 
 iuhlrfSM is illusory' and tl. • apiicaraniM' will lie s(^t asidn : A, v. //., VV. N. 
 \m 174 ; W. N.'lHHl, 241 ; KI'll v. Ctir (prolialily .V. r.), .51 L. T. N. H. (>21 ; 
 ;B\V. K. 2(ih ; A". V. ('. r-i L. .1. Cliv. IKW. 
 
 3N0. The Memorandum of Appearance may be in the fo"" "f 
 Form No. !)3, in the Appendix, with such variations as theliuTi!"'^' 
 circuniHtances of the case may require. 
 
 The Kntf. I{. 1870, (). 12, r. 10 (1883 R. 83), hoH the word " Khali " in«tt>a<l of 
 "may," in tlu! firHt line. 
 
 Tlw tiiiu' for aiipi'arinjf in ten dayw after the Hervice, in the (iase of service 
 witliili tiic jwiis(li(^tion, and the dav of nervice in inelnsive : see Form No. 1, 
 /;«/« an, 275, and duriiluli v. Mnii'iiiiin, 18 C. L. .T. 7(), 14.3; 2 C. L. T. 10.5. 
 Iiiciwof service out of tlie jiiriwliction the time will Im- in accordance with 
 W 27(1, (ir any special order in the action. Incase of service hy iwlvertisin^the 
 time diitfs from the last publication ftcconling to the order : f'raiie v. Jail ion, 
 2Ch. I). 220. 
 
 [a) In case a defendant does not require the plaintitt' to 
 deliver a st.i.tement of claim he shall so state in his memo- 
 randum of appearance, and in that case shall serve a copy 
 of such appearance on the plaintiff. J. A. Rule 55. 
 
 S«. Eiitr. Kiiles 1880, r. (1883, R. 225.) 
 
 2H7. Upon receipt of a Memorandum of Appearance, Entry of 
 the olticer shall forthwith enter the appearance in iheliif,',""'*"' 
 Procedure Book. -T. A. Rule 56. Rules T. T. 185(5, 1. 
 
 Sec Kll^^ H. 1875, (). 12, r. 11 (1883 R. 83) in which the B(X)k is called the 
 •"'auBe Bcxjk. 
 
 (ii) Partners. 
 
 5JSS. Where partners are sued in the name of their firm, Partners. 
 they shall appear individually in their own names, but all 
 subsequent proceedings shall, nevertheless, continue in the 
 name of the firm. J. A. Rule 57. 
 
 Same iw Eur. R. 187.5, O. 12. r. 12 (1883 R. 85). 
 
 For the provisions for ascertaining who are the partners in a firm : see 
 ""'f 317 ; and see R. S. O. c. 130. 
 
 It one ()f several partners do(!s not ap))ear, judgment cannot be entered 
 i>gainsthini individually. .ludgnient if n^covered must follow the writ and be 
 »?ain8t the firm : Jarhinn v. Litchfidd, 8 Q. B. D. 474 ; Adamx v. Towmiul, 
 |<9- ^- !•)• 103. Execution, however,, may be issued under Ride 876 against 
 individual partners. 
 
 Where an action was brought against a firm, and one of the partners indi- 
 vKlually, and the jiartner only appeared, but separate defences were afterward* 
 
812 CO*dMENCEMENT OP ACTIONS. 
 
 Rules (UlivMvd by the partner and tlie firm, it was h< 'd that the dt'ffiicf df the finn 
 
 389, 390. could not 1m< Ntnick out, for tht- prustwit Rule (Iim'k not tfivt- power to tin- tirin t<j 
 
 cntiT an ap|N'aranc*' : Tm/hirv. i'dllirr d' ('«,, 'M) VV. K, "01 ; \V. N. IKS'> 83' 
 
 r»l L. J. Cliy. Hr).3. ' ' 
 
 Tn Minisler v. Itamnii, 10 Q. B. D. 475, 11 (^ H. I). 4.V) (affinru'il in tli.. 
 Hotisc of liordH, 10 Ai>p. Van. (JHOj an action whm lirouRht HK.iiiKt ii finn, 
 " H. &. Co."; K. apiM'arcd indiviclually and tlic iihiintitT then <lrlivi'rc(l li 
 Htatcnicnt of claim a^aiiiHt " K. Hucd aH i{. & ('o.' and olitaini'd ,iiii|),nnent. 
 Afterwards diHcovcriiiff that V,. vvivm a inemlH'r of the firm of '• ({. X Co.," 
 plaintiff was not allowed to anieiul \\\h jud^nnent to make iteonfimii ti> tlif 
 writ and be a jud^'ment ajfainut the firm, iw he had chonen to sue l{. individu- 
 ally. 
 
 ♦ See also notes to Riile» 2t)5, 317 and 87(1. 
 
 ance'by 2WO. Where any person carrying on business in the 
 parson name of a firm apparently consi8tin<7 of more tlian one 
 
 sued under . j • it r l\ n y in 
 
 firm name, persou 18 sued in the name cf the nrm, he shall appear in 
 his own name ; but all subsequent proceedings, shall, 
 nevertheless, continue in the name of the firm. J. A. liule 
 58. 
 
 Same as Eng. R. Juno 1H70, R. «; (1883, R. 8«.) 
 See notes to Rtdes 2U5, 288, 317 and 870. 
 
 (iii) Dower. 
 
 Defendant 
 may flle 
 appear- 
 ance and 
 acknow- 
 ledge 
 tenancy. 
 
 200* Any defendant named in the writ, in an action for 
 dower, may, within the time appointed, file an appearance 
 and acknowledgment that he is tenant of the freehold of 
 the land named in the writ, together with his consent that 
 the plaintiff may have judgment for her dower therein and 
 It 8.0. cw may take the proceedings authorized by The Act respedxng 
 Doiver to have the same assigned to her, unless the nartir 
 otherwise agree, and he shall forthwith serve tli* 
 or her solicitor with a copy of such appearani *■ 
 
 ledgmentand consent, together with an affidavit le day 
 of the entering and filing the same in the proper o. ; and 
 of's^isin'* ^° every such case when the defendant so admits the rigli 
 and writ of to recovcr, the plaintiff may enter judgment of seisin forth 
 °°'"""'"°" with, and may obtain a writ of assignment of dower, hut 
 shall not be entitled to tax or recover the costs of suit or of 
 entering such judgment against the defendant. li. S. 0. 
 1877, c. 55, 8. 20. 
 
 (a) In case the plaintiff claims arrears of dower or 
 damages for detention of her dower, neither the entry of a 
 judgment of seisin nor the taking of proceedings for the 
 assignment of her dower thereunder shall prevent her from 
 proceeding with the action for the recovery of such arrears 
 or damages. New. 
 
 assignment 
 theieou 
 
APPEARANCE, KTC. — RECOVERY OF LAND. 
 
 313 
 
 Thin Hul)-olauH«' liiw l)««ii iiitriKlucwl to nicnt tin' tli-ciHioiiH nf l.itifiHit v. Rulei 
 Ihniiiwih.; 21 V. I'. 4H4, and Ciiiiiirun v, (lihlni.tt,~ V. \{. 1S4, wliicli ilccidcd 391-398. 
 that juil^'iiii'iit (if Ht'iHiii JM i-iiiic!liiMiv(<, and wlit-ii HJ^nt'd the dt'friiditnt ciiiiiKit 
 111' |pinct'f<l('(l aKiiiiist for daiiuiK*''* : hcc u,\hu Hurvt h \. /'(orsdl/, 'M (J, I*. 2H!I. 
 'I'liiiM' easel ale therefore no longer to lie folhiWed. 
 
 It wan held in H.'/i'n v. /''isli, t Ont. XMt, tliat a do\vrt'n« may recover (hunuK'es 
 ax well fur iiifsiit' profitH as f:ir detention aKaiiiHt all [lerHonH, and in all caHeH 
 wliiTe liiey were rec'overalile In-fore Au)!. lOtll, 1850. Hy 15. S. ( ). 1S77, c. iVi, 
 xec. -I'l, the |iriK'e(lure liefore that date wuh made aiijiliealile to all caNeH not 
 provided for liv the Act. This Mec. 4r> in the ('onHolidation of IHH" has In-en 
 emitted as "effete," liecanwe the procedure in ail action for (lower is under the 
 ,Iud. Art to lie the same fiM in other actions for recovery of land. \ti donlit 
 the ri^'lit to damages has not U-eii »ffc(!ted liy tin- change in the nuHie of pro- 
 cedure to iilitain them ; hut see fi'ilrK v. Miii'i'nir, 1 Ont. 027. f'osts are not 
 given unless a demand for dower was iniwle : Lasir v. Jniis/rinnj, 11 (ir. .'■)17. 
 
 A widow is not entitled todanui^iw fordetention of dower till after demand : 
 /'//<"' V. I-'IkIi, 4 Ont. Xi'i ; n<ir t<i either arn-ars of dower or damaK'es for deten- 
 tii III unless her husband died seised : /.usir \. .Uiiiitroiif/, 11 (ir. 517 ; Mon/iiu 
 V. Mmi/dii, l."» Ont. I!t4, even tliouKii demand made Mniijiin v. Mniniin, niijii,-. 
 
 Ah to whether daniajfuH are to Im- computed ajfaiiiKt the tenant of tlie freehold 
 fMiii the death of the hu8bu;<d, or the date of demand, <iitii iv -. see Ri/im v. 
 
 I'inli, sii/irii, 
 
 For fonii of writ of assignment of dower, see Form No. 201. 
 
 CaBo 
 wlioroin 
 (lefundnnt 
 may Hue 
 out o.xouu- 
 tion, if 
 plaintitT 
 (louH not. 
 
 201. In case the defendant has filed and served an 
 nckiiowledgment and consent under the preceding Rule, 
 and the plaintitf does not within 3 months thereafter sue 
 out and cause to be executed a writ of assignment of dower, 
 the defendant may, by leave of the Court or a Judge, sue 
 out suih writ; and the writ shall be, as nearly as may be, 
 in the same form as a writ sued out by the plaintiff, and 
 the like proceedings shall be had thereon. B. S. 0. 1877, 
 c. 5"), 8. 21. 
 
 See Konii No. 201. 
 
 2»2. In an action for dower the landlord or other per- Landlord 
 son under whom a tenant in possession, who is not also luted as'' 
 tenant of the freehold, holds or entered into possession, *'"'"'"'*"*• 
 may. if he has not been served with the writ, without leave, 
 appear ar ' defend, by filing with his appearance an 
 affidavit that he is tenant of the freehold, and is advised 
 and believes that there is good ground for disputing the 
 plaintiff's claim to dower. R. S. 0. 1877, c. 65, s. 14. 
 
 (iv) Recovery of Land. 
 
 3»8. Any person not named as a defendant in a writ of ^,pp®*^1jj. 
 summons for the recovery of land, may, without leave, out leave 
 appear and defend, by filing with his appearance an not'nlmed 
 affidavit stating that he is in possession of the land daut**'*"" 
 
314 
 
 COMMIiNCEMENT OF ACTIONS. 
 
 [■'''^n 
 
 Rules 
 294-296. 
 
 either by himself or his tenant (as the case may bo), and 
 stating further, in case the possession is by his tenant, 
 that the defendant named in the writ is his tenant. The 
 affidavit may be in the form of affidavit numbered 47, in 
 the Appendix. J. A. Rule 62. 
 
 N(i i!()rre.s|Km(liiin Kn)?Iisli Ruh'. 
 
 The iiitt^iitioM wcnikl appeal' to \m that in »<iui]tle oaMfM in which luave would 
 liave hi't-n jfivt'n initlM' the former |)ractiee as (>f {•our;<e, and an affidavit in the 
 form tfiven can lie niiuK^ l)y the (h'fendant, '.lo leave need 1m' ajtplied for, 
 Under s. 1(» of the Kjectnient Act {K. S. (). li'iJ, o. .51) it was often a (i\ie«tiim 
 whether a jH'rsitn could Iw said to he in |M.,ssesHion hy himself or his tcimiit 
 within the meaning' of that section ; for example a niort(<agee out of iMjssesHJoii 
 in an action ajcainst his inortK'at,'or ; Me Itrrmult v. KivIIikj, 7 II. C. L. .1. 1;VI; 
 see also Mai-rit v. Siiiiilhi-, 2 U. C. L. .1. 212. In such cases it will InMieoiswirv 
 to apply for leave under Hiilf 2)M. 
 
 ' II 
 
 m 
 
 an«"b 2fl4. 'Where such affidavit is not filed,] any person 
 
 landlord in not named as a defendant in a writ of summons for the 
 
 fami!" " recovery of land, may, by leave of the Court or Judge, 
 
 appear and defend, on filinp; an affidavit shewing that he 
 
 is in possession of the land, either by himself or his teniuit. 
 
 J. A. Kule 63. 
 
 Kxe.ept the words in hrackets, the Itnlr is the same as Kng. K. 187"), (), 1:', 
 r. IS (ISH.% R. !l.i). 
 
 For cases under the former practice see Harrison's C!. L. ' '. Act, "dH. Sec 
 also notes to the preceding' lin'i', and Ijradi'r v. l/n/ics, M L. T. \. S. 204. 
 
 The Court will not on the application consider nice questions as to the ri^'lit 
 of possession : sei f'rfift v. Linii/i;/, 4 K. & li. (114, and T/i'iiii/isnii v. Tumkin- 
 sun, 11 Kx. 442. In /,'iiii//iiiiinir v. h'ishi-r, W. \. 1S7H, 28, iin e((uitalile tcimiit 
 for life was given leave to defend an action of ejectment in the pliwe (if her 
 trustees, using their names and indemnifying them. 
 
 Form of 
 appear- 
 aiu.'e by 
 landlord. 
 
 3!l»'» Any person appearing to defend an action for the 
 recovery of land as landlord, in respect of property whereof 
 he is in possession [in person or by liis tenant, shall 
 state in his appearance that he appears as landlord. J. A. 
 Rule 64. 
 
 Same as R. H. (). 1877, c. .M, s. 12. The Knglish Ride 1S7.5, (). 12, r. Hi; 
 (1HS3, R. (M»>, has the word "only " insteiul of the words in brackets. 
 
 Notice of J1KS. Where a person not named as defendant in a writ 
 
 anco bv of summous for the recovery of land enters an appearance 
 
 named as a accordiug to either of the foregoing Rules, the appearance 
 
 defuudaut shall bo entitled in the action against the party or |)artie9 
 
 named in the writ as defendant or defendants ; and the 
 
 person so entering an appearance shall forthwith give 
 
 notice thereof to the plaintiffs solicitor, or to the plaintiff 
 
 if he sues in person, and shall in all subsequent proceedings 
 
 
APPKARANCE, ETC. — LIMITED DEFENCE. 
 
 315. 
 
 be named as a party defendant to the action (a) ; and i^^m^mi 
 such person appears and omits to give notice of his appear- 
 ance, the phvintiff may proceed as in case of non-appear- 
 ance. J. A. liule 66. 
 
 («) The prcccrliiig nart i)f the Ilnlr corrfsponds with Eng. R. 1875, (). 12, 
 r. 2<l (\XXi, K. it") ; what follows 1ms been tiikcMi from R. S. O. 1S77, u. T)**, 
 
 ^. m. 
 
 A form of notice of appHarancf will We found in the App. No. 13. 
 
 2!>T. Any person appearing to a writ of summons for 
 the recovery of land shall he at liherty to limit his defence 
 to a part only of the property mentioned in the writ, d(!.s- 
 cribing that par* with reasonable certainty in his memor- 
 andum of appearance, or in a notice intituled in the cause 
 and signed by him or his solicitor, such notice to be served 
 witbin four days after appearance [upon the solicitor whose 
 name is indorsed on the writ, if any ; and if none, then 
 tiled in the pro[)(!r ofhcej ; and an appearance where the 
 defence is not so limited shall be deemed an appearance to 
 defend for the whole. J. A. Rule (56. 
 
 The Kjectnient Act, R. S. (). 1877, c. Td, s. 13, did not provide for the alter- 
 iiiitive of the notice U'ing in the nieinoriviidu;n of appearance; and Kng. R. 
 1X7"), (). 12, r. 21 (IHHIi, R. !IH) does not contain the w rds in hraekets, tlwH** 
 iH'iiiK taken from H. S. (). c. M, s. 13. 
 
 Tliis /i((/i' has iMteii held to be applicable in an action of Dower: ('niniiin/- 
 liinn V. Piiim; Mr. Dalton, 21st Sept., 1881 ; see also McCiill,„-li v. Mft'iilloc'li, 
 4 ('. L. T. 252. and the notes to Rii/r 341. I5etter particidars may be obtaineit 
 when' there is a want of " reasonaliU- certainty " ; IViit.ioii. v. liriifir, 4 P. 1{. 
 2IL'. 
 
 I limited 
 iippear- 
 niice in 
 iietion foi- 
 laml. 
 
 Notice. 
 
 121W. Tlie notice to be serv d as mentioned in the last J;""^;"^"' 
 preceding J{ule mr,y he in the Form No. 14 in the Appendix, 
 with such variations as circumstances may require. J. A. 
 liule (57. 
 
 Same as Kn^'. R. 187."), (>. 12, r. 22(1883, R, !Mt). 
 
 (v) Limited delcnre. 
 2»0. Any person appearing to a writ of summons in i-imitatioir 
 
 other 
 
 it (lofonoe 
 
 cases may limit his defence to the question of the 1', ,',uostioi» 
 
 amount to which the plaintifi is entitled, and in that case '^[.r"'"""' 
 may in bis appearance, or, by notice served within four 
 days thereafter, state tliat he disputes only the amount 
 claimed by the plaintiff ; and he need not file any further 
 defence for the purpose of disputing such amount ; and the 
 plaintiff is to proceed as if the defendant had filed a defence 
 disputing the amount of the claim. The notice disputing 
 
^ '^- 
 
 316 
 
 
 COMMENCEMENT OF ACTIONS. 
 
 Buiesoo. tije amount of the claim may be in the Form No, 15, in the 
 Appendix, with such variations as circumstances may 
 require. - • ^ ' 
 
 J. A. Rule 68. 
 
 "Who may 
 t>e joined 
 «8 ulaiu- 
 
 «8 u. 
 MftB 
 
 a. 
 
 A similar notiw \va« itrdvidcfl for !)>• Cliv. Gen. Orrlfr 4.3(1. in nmrtgaffe 
 8iiits, and f ntitlf rl the defendiint to four dayM notice of the taiviii^' of tiic plain. 
 tiff'n account. The extension of the practice by the .lud. Act IHSl, Jlule %^ to 
 Huit-s wa» new. 
 
 In a foreclosure suit, an appearance was entered liinitinfi^ defence to (mcitfiii 
 of tlie nwrtga^fc account and it was held tiiat no statement of (iefcnce was 
 necessary as this /{iil>' suiiersefles tlie necessity for either statement of claim or 
 defence, and points out to the plaintiff another way of pi-ocecdin^r ; a jiiilg- 
 inent hv default of defence was therefore set aside with costs : J'n/ v. White 
 11 P. ft. 177. 
 
 Under the former Chy. I'rac, by rea.son of tlie notice indorsed on a hill, in 
 the event of a (lisjuite ni.te only l)einK tiled in a mortgage action, the plaintiff 
 was entitled to get judgment on itiiiri/u ; but original Jiiilf 7S, wliicli cmtinued 
 that nractice, is now embodied in linU "X^, under which it is niit clear wlicthtr 
 the plaintiff can obtain judgment in such a case on jnuirifir. This Huh pri>vi(le,i 
 that the plaintiff is to |»roce»'d "as if the defendants had Klcd a defence 
 <lisputing the amount of the claim." It nuiy be that a note (lis|iuting theclaim 
 does not, under ii"/r 403, admit the execution of the mortgage and tlieotlier 
 facts entitling the jdaintiff to judgment, and therefore /{n/i 71S d(Ms not apply 
 to such a case— and that it is therefore neces.sary for the plaintiff to nidve fur 
 juflginent f)n notice to the defendant : liominiini Buitk' v. Ihnltiriiliu, VI V. R. 
 <!;")!■), in the same way as in any other kind of action, under Hnli 74S, (ir under 
 RnlcH 7.30, 74;") or "At in the cases to which those ltuli''< apply : see i'lan-fnnl \. 
 h'riiimel/, 7 O. L. T. 117 ; W'illiiDHKitii v. h'lrinii, 27 (»r. o'.Ki. In the cxse of a 
 motion inider Eith 74S the filing of a statement of claim would not senn to lie 
 necessary; Init see HunUr v. WilrDcksmi, it P. H. .305; MrLinil v. Simmiih, \i 
 
 P. R. (KN". 
 
 It has l)eun decided that a defendant filing a disputing note in a niortgaKe 
 Htiit may o'l the taking of the accounts shew that the Statute of Liniitatium 
 ap]>lies so IS to |)revent the recovery of more than six years' arrears of intcrenl: 
 Wriiiht V. Mimimi, 1 Ont. Apji. (113, overruling the decision nported, L'4 (ir. 
 457. I'jUt the Statute must be pleaded if the defendant wishes to set it iipu'^.i 
 bar to the .suit ; ('iiftini<irli v. Urqithiirt, (» I'. K. 2S, explained, 1 Ont. ,\pp. (Iltl; 
 8«'e also notes to /'ifr 402. 
 
 It was held also under the fonner Chancery |)ractice that a ilispiitinjj note 
 was not an answer, and therefoiv (Jen. Order 134 (see /{uli MH) allowing a 
 defendant after answer to obtain on priecipe an order for priKhiction, <liil not 
 a|)i»ly : Itirhnnhon v. /itiinjin; 2 Chy. Ch. 54. 
 
 5. PARTIES. 
 
 (i) Generally. 
 
 300« All persons may be joined as plaintiff's in whom 
 the right to any relief claimed is alleged to exist, whether 
 jointly, severally, or in the alternative. And, without any 
 amendment, judgment may be given for such one or more 
 of the plaintiffs as may be found to be entitled to relief, for 
 such relief as he or they may be entitled to. J. A. Rule 89, 
 part. 
 
 Same as Eng. R. 1876, O. 10, r. 1 (1883, R. 123). 
 
PARTIE 8 — OENE RALLY. 
 
 317 
 
 The cliaiipcs introduced into England by The Judicntiire Act were very Rule 300. 
 mat<rial i;liaiit,'CM. Most of them hud in Ontario been already made jiart of 
 the jiirisdictiDi) and practice of the Common Law Courts by T/ie Admmifitra- 
 linn ofJimlicf Art, R. S. O. 1877, c. 4!>, s. i>, which providefl that— 
 
 "5. For the i)uriH>He of carrying into effect the oV>ject8 of this Act, and for R.8.0. 187T 
 cauHJntf coiiiplftf and final justice to l)e done in all matters in ((uestion in any c.49. 8.5. 
 action iif law, the Co>n-t or a Ju<lge thereof, according to the circunij^tances of 
 the Ciw, may, at the trial or at any other stage of an action or other |)rocee(l- 
 inir, iminoniice such judgment, or make such order or decre*' as tlie e<|uitable 
 rights of thf parties resj)ectively require, and may niake such nile or order aH 
 to wlding tliird ))erson8 as parties to any proceeding, striking out parties, or 
 treatini? parties named plaintiffs as defendant, or parties named defendants as 
 plaintiff!*, and as to costs, and may direct such in(|uiries to be nuide and 
 aceonnts to be taken as seem reasonable and just ; and nuiy as fully dis|K>se of 
 the riglits and matters in questicm as a Court of Equity could."' 
 
 Tlif .hutiiiihne Act extends the jurisdiction of the Court still further in the 
 game direction, so as to do complete justice in one siiit. 
 
 Previous to Tlie Adiiiini.itratinn of JiMtife Act in Ontario, and tf) The Judka- 
 tun .l(/'< in England, the contrast between Common Law and Chancery 
 procetlure wjis very great. 
 
 iSiibject to a few excej)tions, the Common Law Courts were tied down to 
 disiK)aing of claims arismg between exactly the same parties uiKni each side, 
 and in the sanie right. They could give a judgment against the defendants 
 generally, but tJiey could not give relief of one st)rt against one defendant, and 
 (if another sort against another defendant ; nor could they give relief of tme 
 kind to one plaintiff, and of another kind to another jdaintiff, or of one kind 
 to two plaintiffs jointly, and another to one of them sej)arately. All the 
 jilaintiifs, if more than one, had to l)e jointly entitled, and all the defendants 
 jointly liable, with resitect to every matter uixjn which the Court was asked to 
 a<ljiidicftt«?. 
 
 In Ciiancery, on the other hand, the course was to deal with the controversy 
 ortmnsaction binning the subject matter of the suit as a whole, and endeavor 
 to do complete justice with resjH'ct to it; and for that object the Court fonnerly 
 iiiKistedon all the parties interested in the subject matter lieing brought liefore 
 it. The extreme strictness of this rule ha<l l)een usefully relaxed fnmi time to 
 time, but in tbe main it had not l)een departed from. 
 
 The res\dt hiwl l)een, that a Court of Law could not handle the matter as a 
 whole, iKiwever desirable it might be to do so ; Vnit was obligwl to confine itself 
 to the siiecitic claim of one jierson against another : while a Court of Ecpiity 
 cuuld imhi deal with the matter as a whole, whether that were n-ally necessary 
 (If not, and could not di8|K)He of the mutual rights of }>articular (lersons singly, 
 however convenient it might be to do so. 
 
 The Jiiitiidtnrr Act and liulcji, give a verj' wide latitude as to the matters Parties. 
 which may lie dis|Hised of in an actitni, the mtxle in which a case may he dealt Plaintiffs. 
 with, and the |iersons who may lie made jtarties to ii. 
 
 A plaintiff may in any suit enforce any claim, whether legal or equitable, 
 the defendant may raise any defence which is gorid, either at law or in wpiity, 
 and may id.so set up, not merely a jiecuniary set-off, but, by way of counter-claim, 
 anything that formerly he could have nia<^le the subject of a cross action 
 ofHuit. And he may make such counter-claim, not only against the plaintiff, 
 hiitatfainst any thini jjerson, if only it be connected with the subject of the 
 action. 
 
 The Court in its turn is bound to "grant, either absolutely or on such 
 reanonable t4'nns and conditions as to them shall seem just, all such remedies 
 whats(M'ver a.s any of the parties thereto mav ap|)ear to Ixi entitU^d to in 
 fwiiect of any and every legal or eipiitable claim pro|)erly l)rought forward 
 by them resinKjtively in such cause or matter; so that, as far as (Hissib^e, 
 all matt«'rs so in controversy between the said parties respectively may oe 
 

 «18 
 
 COMMENCEMENT OF ACTIONS. 
 
 Rule 300. 
 
 Parties 
 plaiiititT, 
 who inav 
 he juiiiet^. 
 
 'i^ 
 
 completely and finally (leterinined, and all niultiplicity of Icjjfal i>n)ct<«liii(fii 
 concerning any of such niatterH av()i<lf(l "' : .liid. Act, h. 52, (12.) 
 
 On the other hand, no liction is to U' defeated hy reason uf tlic iiii«- 
 joinder of ]>artieH, and the Court niivy in every action deal with the matters 
 in controversy so far as regards the rigiits and interests of tiie (larticx nt'timlh 
 iH'fore it. 
 
 The provisions iindei this hea<l of "Parties'' and tliose of A'/'/r .'Vlo, ('/«•</,, 
 relating to the joinder of various claims in tlie same tu:tioii and in tlic saiiii' 
 pleadings, were framed so as to ^ive effect to these provisions. .Ml imtsoiis 
 claiming any relief, joiiitlii, inrrnl/ii, nr in tin altmiatiir, nmy !«■ made 
 plaintiffs. All |>ersons against whom any relief is c\u,\\wa\, Juint/]/^ s< i, nilhi, 
 or in till' ii/ti'niatiri; may 1m« made defendants. And the (h-fendant> iniil not 
 all l)e interested in all the relief claimed, or in all thecausesof action. It is not 
 necessary that either plaintiff or defendant should l>e concerned in all the 
 matters in que.stion in the same capacity ; subject to a few (|iialilicatic)n>, 
 either may l)e concerned partly in a representative ca]iiicity, partly jHTs.inally. 
 
 The defendant nuiy also hrinjj In-fore the ('<turt ikm-souh not aliciwly iwrticK 
 against whom he seeks any relief relating to or connected with the mihJK't 
 matter of the suii;. 
 
 In sliort, all parties may U- added that may l)e necessary to eiiahle the f'oiirt 
 effectually and completely to mljudicate tiinm and settle all the (|iie.sti(in< 
 involve<l in the iiction. 
 
 The present Jii'/i; it will \h> ohserved, authori/.es the joinder as plaiiititfN, not 
 only of i>ersons claiming jointly or in the alternative, but of ihtshus ('laiining 
 severally. AccoHingly, wheiv eight |K'rsoiis brought an lU'tion of liln-l, it 
 was lield that theymight rightly join, tliough no joint injtu'y was shewn, ami 
 though they wouldln-fore the Act have hiwl to bring eight actions : liiKithw 
 lirixciw, 2'^. B. I)., 4!M) ; and see Vlxniniit Uoii v. Jtoirm/i, 17 '^ H. I). ()25. 
 In such case, of cours" there is no joint (hiniages. Kaith has a separate ciiusc 
 of action and the Hssessineiit of damages or the award of any other relief 
 should Imi separate. Hut in VA/o^/i v. /Iri.iioi . tiie damages having In-en jointly 
 asscKsed, it was held that the defendants could not complain. 
 
 Appliimi v. Cliiipi'l Tiiirii I'liivr Co., 4i\ L. .1. ( 'liy. "JTli, does not apjiear to lie 
 <pute consistent with this. 'I'liere thf! owners of two se|)arate lilcaili works 
 joined as ))laintiffs in a suit to restrain the |M)llution of a stream used by iKitli 
 of their works, and the case was tried by consent, as if two separate bills had 
 Ix'en filed, but it seems to have been considered by tiie .fudge tliat the plaintiffs 
 could not sue together in one action for distinct nuisances. 
 
 One of several mortgagees may bring a foreclostn-e action, niaking lii" 
 co-mortgagees defendants, if thev will not join as phiintiffs : Liik'- v. Siiutk 
 Kcmiiuitim Until Co., 11 C;h. 1). ll'l. 
 
 Where two or more ])laintitfs sue for a joint claim, the defendant may setup 
 a separate counter-claim against each plaintiff : Manchiiiti'r, itr., Rii. v. lirimU, 
 2 Kx. D. 243. 
 
 Where two plaintiffs join in an action and 4 me is successful and the other 
 imsuccessful, the successful plaintiff was held to lie cliargeable with the costs "f 
 joininif the unsuccessfid ))lanitiff : />' //oiiiiiijiji-f <(■ < 'o. unit /stuns <(• <.'n. v. (Ireii, 
 10 t^. B. 1). \3 ; 52 L. .1. l^. B. 1!»2 ; but in Visininit (.'ort v Roini.'i/sii/on, where 
 costs had been ordered " U> abide tlie event, " it was held that the uiisiiarsufui 
 plainti.T only was liable for the costs occasioned by his Ix'ing joiiinl in the 
 action. 
 
 Where some plaintiffs were successful but some were alwent at the trial frfini 
 illness and gave no evidence, the latter were onlennl to [my defeiidants the 
 costs «x)casioned liy their l)eing joined as plaintiffs, without |prejiidice to then' 
 bringing a fresh action : Aniixim v. Smith, 41 Ch. I). 34H. 
 
 One of several joint owners of a patent may sue for a recovery of profit'' due 
 for the use of the paU-nt without joining the other owners : Shcfhvi v. 
 tJ. E. Hy. Co., 10 Ch. I). 5«. 
 
PARTIES OENEllALIiY. 
 
 319 
 
 30l« All persons ma.y he joined as defendants against*''^*'®*- 
 whom the right to any relief is alleged to exist, whether bVjoimHi 
 jointly, severally, or in the alternative. And, without any »^;|{;'«"- 
 amendment, judgment may he given against such one or 
 more of the defendants as may he found to be lialde, accord- 
 ing to tlieir respective liabilities, J. A. Rule 91. 
 
 Sam.' as til.- Kiiff. I{. l«7r), O. 10, r. 3, (1HH.3 |{. 12fi). 
 
 fiul with the latter : Parties, de- 
 feiulantH. 
 
 This Itnli, whii'ii \n the converse of /{"/<■ 324, iiiiixt 1h 
 Kilimnl^ \ . Loirthir, 24 W. I{. 434. 
 
 What is siiidiiere as to (lefeiKhints is iUiiUo^^oiis to 7i"^' 3(H) us to plaintiffs ; 
 and the two /Ih/ik have leceived a siuiihir constniotion. 'I'liis /In/r is not 
 ciiiiKiii'fi to cases in wliich the alternative i-elief asked hy a statement of claim 
 attainst one defendant is consistent with tiiat asked against another : J/iniifurns 
 Rii. I'll. V. Tiii-l.Ti; 2 Kx. I). »)1 ; rhilii v. Sleiiiiinii, .5 Ch. I). n!>5 ; and a 
 lilaiiititf may rely u|K)n different rights alternatively thou^di they may Im' ineoii- 
 •sistfiit : J'/iili/i.i v. /'hili/i.i, 4 t^. 15. I). 134. It would seem, however, that this 
 cdtistnittion of the A'n/r a|>|)lies to a statement of claim only, anil where l>y a 
 milliliter I'iaini relief uas sought against a party in one of two inconsistent 
 alternatives a deiiiurrer was allowed ; /w'imi.'-- v. Itnck, 4 Cli. I). 432. 
 
 If tiie defendant can show that there is inconvenience or lulditional ex|K'nse 
 intryiiiK' lioth the claims at the same time, or that the dis|Misiti<in of one will 
 ii'iidcr tlie trial of tiie other unnecessary, he may apjily under I'nli '.WtUtv the 
 trial iif line i>siie before the other is approached : ISiiiiat v. Kn.ititu, 7 (-h. D. 1. 
 h\Himiliini.i /,',/. (h. v. Turkri; 2 Kx. 1). liOl, the ])laintiffs sought to enforce a 
 ciiiitract a(.'aiiist the defendant on the ground that the jierson liy whom it was 
 iMiMle \va.s till defendant's agent to make it. The CJinirt of Ap|)eal, attinning 
 till' l'l\(iliei|iier Division, ordered the alleged agent to tie adiled as a defendant ; 
 the plain tiff claiming to recover against him, in tliealt<'rnativeof hisnot having 
 liad aiitliority to contract. In < hihl v. Stciiuin'j, '> Ch. 1). (>!)."), the nc-tion was 
 fur trespass to laiiil, of which the plaintiff was lessee. The defence was a right 
 iif way ffraiited I ly the lessor, and it was held that the plaintiff nii^'ht amend 
 his claim Uy adding the lessor as a defendant, claiming against him, incase 
 the right <if way was estalilished, damages for lireach of covenant for (piiet 
 iiijoymcnt. See also Kihraiilx v. Loirtlur, 4n L. .1. ('. P. 417 ; 24 VV. K. 4;i4, 
 
 id Ikiiiiil \. Kiinlint 
 
 (.'h. I). 1, where, however, the alternative claims were 
 
 nut (•<iiiKi<|iri'(l inconsistent. 
 
 Wliei-e the plaintiff su(!ceeds against one def>'ndant, hut not against another : 
 the cost iif the successful ilefenilaut must be Isirn by the plaintiff, and not by 
 the unsuccessful defendant, unless the Cotirt orders otherwise: see Chilil v. 
 N^'MHio./, 7('|i. I). 413 ; 11 Ch. I). S2, and Hiiii/lntm \. Ah.mniler, cited (Miarleys 
 ■Iiidicatim' Act, 3rd ed. 455. 
 
 ItiiUt 3()2 and 3((3 seem to be applications of the principle of the present 
 
 /'«/(■. 
 
 If a plaintiff brings separate actions against a niimlmr of iM»rsons whom he 
 nnght have joined lut defendants in one action he may have to pay the defend- 
 ants ext'tt costs : (liurtt v. Y'>ini<i, W. N. i«i3, 21(1. " 
 
 It iH not pro|M-rtomake individual coriHuators defendants for the sole pur|M>se 
 'I making them pay costs : yl«(/.f,V;i. v. VtxtniofJitrinowlmi/, 23 Ch. I). »M». See 
 »H, Matthiif^ V. YtttK, 4<) L. T. N. H., 4!I7 ; Bnnui v. Ai/ih,, L. K. <)C,h\. 244, 
 |Ki), pi; liiirKtnll v. /tnifiix, 2(i Ch. I). ST.; Aiinmy. Ihrnr JUi», H«>L. T." .I.iur. 
 .<|)t), for what was fonnerly known in Chy. as the Rulr of the thn-e A's, and for 
 iiliwryatioiis on the practice of making attorneys, agt nts and arbitrators parties 
 to suits, alleging against the principal defendants fraud in which the co-de- 
 inidunts are not implicated. 
 
 As tiiiwiding a party for discovery only : see SiiiikukU v. Citii hank; 7!> L. T. 
 «luur, 175. 
 
820 
 
 COMMENCEMENT OF ACTIONS. 
 
 1 *^' 
 
 Bnle 302. In l/md v. Houmum, !) P..K. 12, tlie plaintiff Mued in reHpttct of the flixxiing^ 
 of hind tiy a niilUlrtui. Tiit> (». W. Ry. had turned the waterH of thcHtresm 
 into another cliannel, which wiw not deep enough to carry off all tlm wiittr, 
 even though the defendant's dam were removed, no that complete n'licf wnild 
 not l)e i^iven, even thougl} the jtlaintiiT were HucceHMful ngaiiiHt tht^ dcfeiulant. 
 The plamtiff wa« ther«*fore allowed under this RnU; and liulr'A'lA, to iidd the 
 (». W. Ry. Co. an defendantH. 
 
 In Hmthii V. Newton, tA L. .1. Chy. 225, an actiim by a purchaser for resciiwion 
 of a contract of Hale and costH, auctioneern were made co-defendants with the 
 vendors, the plaintiff alleging that they an<l the vendors hml jdiiicd in a 
 fraud wher»'l>y the plaintiff was induc««l to pay too high a price. It wa« 
 held that the auctioneers were rightly joinwl and could not cliiiiii to be 
 dismissed men^ly on payment of the de^Kmit into Court, and costs to the date 
 of the order. 
 
 If alt«'rnativ« cases ixxv alleged the facts ought not to Vh( mixed up, but 
 should tie stated so as to shew on what facts each alternative of the relief 
 sought is founded : Dorji v. (JiirrHt, 7 ('h. I). 48!(. 
 
 In an action to recover the value of goods (an engine and Iniiler), a iienon 
 who had notified the plaintiff not to roinove the gixids, whicli had not been 
 paid for, and the jirois'rty in which had not oassea, was made a defe.idant in 
 the action : Pidium v. hrHcrr, 12 Ont. 275. 
 
 \n action against four inde|xtndent saw-mill owners, from whosi- iiiilln saw- 
 dust and refuse matter were carried down the River Ottawa and hKJgcd \\\'*m 
 and in front of the plaintiff's land, was held to have b«'t>n pr<i|)erlv lmm|;ht 
 against all four owners as defendants : Rntti v. Booth, 10 P. R. (»4!t. 
 
 Where a restrictive covenant in a lease is omitted in a sub-lease, tnith lesnee 
 and sub-lessee are properly made defendants in an action for breach of coven- 
 ant : Tritton v. lUinkart, 35 W. R. 474 ; .'MJ L. T. N. S. 3(X» ; m L. .1. Chy. (129. 
 
 In an action by a creditor to recover a debt, |iersons tf) whom the del)tor ban 
 made an allegefl fraudulent conveyance of his pr<)|*rty, which the plaintiff 
 claimed to liave set aside, were held to Iw projierly join(>d as defendants : 
 Hmtoti V. MrKelhn; 13 P. R. 81. 
 
 In an ivction by a simple contract creditor claiming merely to set aside a 
 conveyance as fraudident against creditors, the debtor and grantor is a neces- 
 sary iMvrty lis well as the gi antee : (libborvs v. Dnrvill, 12 P. R. 478. 
 
 Set) Rulis 308 and notes. 
 
 Where de- 302« It shall not be necessary that every defendant to 
 not inter- an action shall be interested as to all the relief thereby 
 thl^^eiief*" prayed for, or a-; to every cause of action included therein ; 
 prayed, but ^jj^ Court or a Judge may make such order as may 
 appear just, to prevent any defendant from being embar- 
 rassed or put to expense by being required to attend any 
 proceedings in the action in which he may have no interest. 
 J. A. Rule 92. 
 
 Same as Kng. R. 1875, O. 1«, r. 4, (1883, R. 127). 
 
 Set' Cox V. Itto-ker, 3 Ch. I). 3.50, where this Itiilf was considt'red and given* 
 lilteiul construction. The judgment of V.-C. Bacon, which was affirmed <« 
 aii|»Hal, contains the followmg jmssajf^s :— "I take it that it was 'he intention 
 of the legislature, when any question of any sort, or any set of (luestionit, 
 arose, to endeavour by one hearing and one decrve to dis|N)s<> of all inattent in 
 litigation lietween all the parties who were intt^rested in the subjiwt of the 
 litigation. The Act of Parliament, at the same time that it lias enabled any 
 jierson stating a claim to bring before the Court all (lersons int«'n!Hted in that 
 claim, and Ut include in the claim every queHtion that can belong tu it, or arise 
 
 .N'd ciiscM cit 
 
1 r K«V, ffi 
 
 PARTIES — OKNKRALLY. 
 
 321 
 
 iiiitipf it, hiix. lit tlif Niiiin' tiiiif, caivfullv |ir<iviflc(l that no »)in wliall l)f |irt'jii- Rules 
 jlicwl l)> till' fa(!t i>f liis iM'ijiK jiiincil. 'I'lif /•'(//'.•< ant distinct oi.' the .sulijcot." 303, 304. 
 St* cases cittMl in note to Ituli' 3(t2 hiiju-ii. 
 
 :iO:S> The plaintiff may, at his option, join as parties to 
 the same action all or any of the persons severally, or 
 jointly aiul severally, lia'^le on any one contract, including 
 partiefl to bills of exchange and promissory notes. J. A. 
 iiiile !i:{. 
 
 Suuifiis KiiK. K. 1«7r., (). 1(!, r. :>, (ISSH, K. V2H). 
 
 I!y H. S. (). 1S77, c ")(!, s. \'M, it wan pnividcd flial all the parties to a liill or 
 ii'>t(' niij,'lit l)f joined in one action; i)nt l>y sec. i;*.") the non-joindei' of any 
 jiiint drawer, maker, indorser, or acoe|itor iniKht lie pleaded in abatement. 
 
 J5y tlie present Hull it is optional with the plaintiff in actions on hills and 
 imtcs, as well as in actions on any other (Mint I'act, to proe .ed ajfainst any one 
 iir iiiore of the parties jointly or si'verallv lialile; sre AV .\iifil(ckiii\ Al/,iii!< 
 V. . I, m/r .•<■/,.■, •_'» Cii. 1). 7<K»'; Muniif/ v '(;i//r/l, IH <". J.. .1. 7« ; Imt one of 
 -nil parties if sued alone is entitled to have his co-contnw.'tors joined : I'illi'ii 
 
 v. ll,li,(H,HI, 'J(((^. 15. I). 1.^)."). 
 
 I'lider Cliy. (ieii. Order <>2, a plaintiff nii<,'lit selci^t one or more of several 
 l»i>(jns liiililc. I'lider the ciirres|iondinf,' Kn;,'lish Con. Order (VII. U. '2), it 
 v.as held ill Siiiilli V. //"/••i/l'//, "-M I?eav. ;$.'{|. that if the plaintiff chose to sue 
 ill iir SDiue of them, and the suit became <lefi'ctive or abated by reason of a 
 tiaiisKiissifMi of the interest of one of them, he iMiild nut afterwards proceed 
 ■gainst tlie other. 'I'liis i^loss on the Order was desciilied as hi>,dily teclinical : 
 'iidi/y. 1,1 iris. Ti. H. HChy. Kt.'Ci, W't'2, and will not ]«■ imported by analogy 
 intii tile present /liilr: L/nf/i/ v. Itiiindnck, ~ Cll. I). .'{'.)■!. In the latter case 
 ■wii iif live di'fi-ndants became bankrupt, anrl it was ludd that the action 
 iiii^'lil ]ir(iceed av'ainst the other three without brin^in^ the trustees of the 
 ''aiikni|>ts liefore the Court. For other I'estrictions iipon tiie application of 
 <'hy. »;. (). (i2, sie I^-win, (ith ed. S(»7. See also Wils,,,, v. Wish's, SCh. D. 777. 
 
 All or any 
 lilirtles 
 lialile on 
 one con- 
 tract may 
 be joiiit'd. 
 
 304. Where any person is surety for the payment of a 
 movtgago debt, such person may he made a party to an 
 Kction for the sale of the mortgaged property. Chy. 0. 427. 
 
 Surety may 
 1)0 jolneil 
 with mort- 
 (jaKor, and 
 rulief oli- 
 taiiiHil 
 
 t 'iider this Hnh an assijfnee of the mortgiigtir who had covominted with tlie botii. 
 
 Liability of 
 axsiKnuti of 
 mortgagor. 
 
 Of aKsiKUor 
 of a mort- 
 ^at^e un 
 ciivenaut 
 for itH pay- 
 ment. 
 
 tiiiirtjfiigor to pay the mortgage debt, coulil not formerly have been ordered to 
 1«V the mortgagee, to whom n« was under no leiial liability : Turnliull v. Si/m- 
 "iTO//x, ti (ir. (>1.*>; aiaikmin v. Scntl, 25 (Jr. .S73; an;', see other eases nott'd : 
 '•ii('347. .\iid where the original mortgugee had assigned the mortgage to the 
 I'luiiititf, and enveiianted for payment, it was held that he was not a surety 
 within the ..leaning of this Riili; but that the contract amounted merely to 
 1 (Jimraritv, to enforcf^ which, a separate iu;tion must be brought : Vhirkr v. 
 ""I, X tlr. 7. Hut it would seem tliat in such cases the appropriate relief 
 a> in'tweeii the plaintiff and (lefendants, and between the defendants infer in; 
 iiiaynowhe graiite;] in the sami- action. See u,\m VumpMI v. Rnhiiixini, 27 (Jr. 
 ";i4; ('hiuiihniiiii, v. Snrni.t, 28 (Jr. 1(14. 
 
 "here the surety hml given a mortgage on Iuh own property, the ]irinci]>al 
 iHitiir WHS fonnerly a n»'cessarv party to an action for foreclo.snre, or Hale 
 tlit-reof ; .S ,(//,,• V. Shvpimrd, 12 (Jr. m 
 
 A surety cannot be required to pay tlu' amount of a judgment which it luw 
 '"f n iigrued shall stand as Hecurity for the deficiency on a mortgage, until the 
 ^turity has hccn realized and tlie deficiency ascertained ; Tfitvr v. <S/. John, 
 
 Principal 
 when a ne- 
 coKsary 
 party. 
 
 Liability of 
 surety for 
 (leftciency. 
 
 J.A. 
 
 21 
 
 
822 
 
 COMMENCEMENT OF ACTIONS. 
 
 •' J 
 
 Rule 306. 
 
 Where re- 
 lief 18 
 
 Houeht Hiib- 
 ject to prior 
 iiiortKii({e, 
 prioi' uiort- 
 Ka»:oe an 
 nonc'ceH- 
 Bary party. 
 
 Subse- 
 quent in- 
 cum- 
 brancer, 
 action fur 
 rerteuni- 
 tion by. 
 
 Not en- 
 titled to a 
 sale. 
 
 In dafanlt 
 of pay- 
 ment. 
 
 Prior niort- 
 gaf{ee,when 
 ho may be 
 made a de- 
 fendant. 
 
 Subse- 
 <liient 
 incum- 
 brancer Ol)- 
 taininK 
 flftle has no 
 priority for 
 costs. 
 
 Assignee 
 equity of 
 redemp- 
 tion, when 
 entitled to 
 attack 
 prior mort- 
 
 ?:age for 
 rand. 
 
 305* Where the plaintiff prays a sale or foreclosure,, 
 subject to a prior raortgaj^e, the prior mortgagee is not to 
 be made a party either originally or in the Master's oftico, 
 except under special circumstances to be alleged in the 
 statement of claim. Chy. 0. 440. 
 
 TliiH /'///(•, it will Im> iiotiecfl, if confined to ciihcm wiicrf tlic plaintiff elainiK 
 relief Huliject to tile prior niort^'afe'e ; where he xeek.s to redeem or in iiny way 
 bring in<|Uestiiin the rifjht of tiie prior niortj,'iij<ee the latter must lie iiiadf a 
 defondimt Ijy writ. 
 
 Fonnerly Chy. O. 43!t |irovide<l that where a liill ua.s filed hy a ^iili-e(|iiciit 
 incumbrancer .leekiuff relief aitcain.st a prior iiiortKaKee, .such moit>,M),'eeiiiu.<t !»• 
 mode a party previou.H to the hearing' of the cause ; lint that Order ha.n Ikvii 
 omitted from tliene I'nlis as Ix'ing no longer necessary. 
 
 .\ii action for ifdemption by u sul)se<pient, against a jiiior iiioitgagtr, will 
 not lie, uidesH the prior mortgage, and that of tiie plaintiff, are liotli ii\(.|'iliit' : 
 PamouH V. Jifiiik itf Moutrtal, ]■> «ir. 411 ; L<mii \. Lmiii, KJ Cr. LW.I. The 
 owner of the ('(juity of redemption is a iieces.sary party to such an action. Hi. 
 
 A,l)ill, by a subsefjuent incumbrancer, against a i)rior niortgagie, cluiininK' 
 the right of riMlemption, l)ut not offering to redi em dim, was not liciMiinaiile : 
 Pearmti v. <'i(m/MI, 2 Chy. Ch. 12; (but see Hwiirx v. Lciri.i, 11 (ir. '.'.")7:l 
 and it would ])robably now In- held that a statement of claim, oiiiittiiij,' an 
 offer to i-edeem, would not U- denuirrable under the present practice : »♦* 
 Niitionnl Ihtnk v. United Hand in llinid Co., 4 A|>p. Civs., at p. |(K». 
 
 A Ku1>8e(]uent incumbrancer, bringing an )icti<in against a prior iiini'tgagH', 
 iH not entitled to a sale : MrOoiiiiall v. ('(iia/il/rll, (! S. C. K. 'M'2: iiiilesH tliH 
 prior incumbrancer consent, or do not <,bject, to a sale: Unnnii v. Hurlici; 
 2 Chy. Ch. 18!> ; li« is oidy entitled to judgment for redeniptimi, and in 
 default of redemption he is foreclosed : see /{ii/r 'M'2, or the action i.s di.H- 
 missed, as against both mortgagee and mortgagtjr with costs : J/n/ht \. Fnr:r, 
 .54 L. T. N. S. 12, whicli is e(|nivalent to a fon-closure of the plaintiff; Cunt- 
 wall V. Henrind, 12 (ir. .338; /nnnni v. Wcminti, 3 I>. <J. & Sni. ".'54 ; e.\ct;|)t 
 in the wvse of an e(iuit«bl(^ mortgage by deis)sit : Murfhti// v. Sh rnnhwii, 
 L. R. 10 Chy. 2.'j<». 
 
 In an action by a sub.sec|uent incumbrance:', t<» nnleeni, hemayal.-(p iniiie.icli 
 transactions by the prior mortgagee in reference to the iiiortga},'i(! estat*!: 
 McLaren v. Frcurr, 15 (ir. 23!>. 
 
 Although a |)rior mortgagee can, oitlinarily, only l)e made a party tnan action 
 by a subswjuent incumbranwM', for the pur|Nise of redeeming liini, yet wliern 
 the prior security is created by a deed absolute in form, a .■*ubse()iii'iit iiitmii- 
 brancer is at lilwrty to bring him In-fore the (.'ourt for the piirimsc (pf allow- 
 ing his inten-st to U- redeemable, without offering to redeem him: .Mmi(\. 
 //ohmn, 14 (4r. 703; and se<- Ri>i/(i:s v. Len-iM, 12 (Jr. 257. To siuli an action 
 the exectition creditol"s of the alleged mortgagee are necessary parti*-.-* : ''/"»' v. 
 Frecklcliin, 10 (Jr. 470 ; an<l see iJftrliii;/ v [Vilxon, It) (Jr. 255, 257. 
 
 \Vher«> a i)rior incumbrancer is niiule a party t(» any action by a siilisiHiuent 
 incumbrancer, and a judgment for sale is obtained liy i-onseiit. cir without 
 objection on the part of the jirior incumbrancer, the pi-oci-eds (if the <">■ 
 must Ik' distributed in payment of the claims of tin- iiicuniln-aiit-t-is acconl- 
 \n^ to their priorities, and in such a civ««- the plaintiff is not eiititlcil to any 
 priority in respect of his costs, even though the fund prove iiiwifficient : 
 ','ranfic v. Barhcr, 2 Chy. Ch. IH'J. 
 
 Where the equity of nnlemption was valueless, and an assignment therwf wiw 
 made merely for the pur|K>se of enabling the assignee to inifmacdi a prior mort- 
 gage on the grmmd of fraud for the l)enefit of the assignor, the assigninent wiw 
 neld to savour of champerty, and no relief was granted to the a-ssignee, even 
 though he asked in the alternative for re<lemption : Mucl.all v. liunkH, W^f- 
 25 ; and see IAtti« v. Hawkins, 19 Gr. 267 ; ^\i<.;:e v. Setterinqlon, Hi., 512: «« 
 V. Walker, mCr. .568 ; IfiUmi v. W(J0d8, L. F. 4Eq. 432. Hut when' the awignt* 
 
PARTIES — GENERALLY. 
 
 tHkt* IxiU'ficially, aiul thp ftHHigiiiiii'iit Ih not intuit' iiicri'ly tn cimlilt' liiiii to 
 ■ ill i-i's|H-('t of till' iill*-(<t'<l friiiiil, it would nci'Iii that li*' iiiuy iiiaiiitaiii tiiv 
 tioii : Siiiis V. Liiii'.siiii, l."i Cli. I). 42l> : /h'l/.'insim v. /inni//, L. K. 1 K(|. .'W7. 
 
 iMt 
 
 A sul)S('<nii'iit iiu'iiiiiliraiicfi' may, in tlii' sann' action, oiitain n'lii'f ajfainst 
 tlif iiiorttfiiKor, anil in<ruint>rani'<'rs sulisi'inirnt to liinisrlf roii>c(|iii'nt on liis 
 riilri-niiiiK '111' prior uiortjfa^'i'i' : lOi'ji is v, hiris, VS dr. L'.")7 ; MiLhiyh \. 
 /••,Y/x.r, l."><!r. j;«t. 
 
 A prior niort;,'aK<'<' in iMiHscstion. «iio is also tlii' owikt of tin- I'ipiity of 
 I'Hli'iiiption, is onl.N lionnil to acci unt to a sulisi'i|ui'nt inrunilirancir for ri'nis 
 ;iiiil priitits. on tlif flMltin^f of !■ niort^fnj,'i'i' in possession, until liis mortjfatfr is 
 iijii'' otf, any siiliscipii-nt ri'ci'ipts In- is I'Utitli'il to ntaiii without ai'i-oiint ms 
 (JWIII1-: Sli'iiiliiill \. /li'^irn, 11 (ir. 114. 
 
 328 
 
 Rule 306. 
 
 Kulief 
 
 H^'ainKt 
 other 
 incnni- 
 hrancurs. 
 
 Prior niort- 
 UHK«'i' iiwn- 
 iUK ('i| of 
 veil., ai!- 
 niunt for 
 ri'iits 1)). 
 
 :iO((. Where it appears conducive to the ends of justice PnrticK in- 
 that parties interested in the equity of redemption shoukl J,'','i5^u'of " 
 be allowed to be made parties in the Master's Office, 1\V tJj'lJ'Jay 
 reason of the i)arties so interested heinj:' numerous or other- iiciiiiowed 
 wise, the Court may direct that parties so interested be in tin- Mas- 
 made parties in the Master's Oflfice, upon such terms as to "^''" ** """'"■ 
 the Court or a Judge seems tit; such ordei to he made only 
 where one or more parties interested in the equity of 
 redemption are already before the Court. Chy. U. 438. 
 
 Till' wonls " partii's iiiti'i'fsti'il in tiio fipiity of rffU'inptiou ' in this /^'/< are PaitiuH to ' 
 intpmlfd to apply to imtsoiis iutcri'sti'H in thf ultimate equity of ledeinntioii, whom lUile 
 I'.f., the iiiortK'ajfor or any one standiiiK in his place. .\s a ^'eiieral lule, all "Pl'lh's. 
 |iarties inteiTst<'d in the nltiinate equity of redemption in iiiortirajfid pro|K'rty, 
 'ixncUt to Im- made original defendants in an action to enforce the mort^a^e, liy 
 siile, or foriflosnre : J'lihrsnii v. //dIIhhi/, S (Jr. 2;{.S ; Jiiii/./n/ \. ll'/'/.ve//, S (Jr. 
 .'••)(!; Imt not iiirsiif iiKumliranoei-H, or execntioii creditors, who are always 
 imWwI in the .MastiT's ottice : see /tulf 12(i. 
 
 This Ili'/i' inakeH an exa'ption to the (general rule, and eiiahles the Court to 
 ilin-ct, that (larties int4'rested in the ultimate equity of redemption, may 1m' 
 iiiade ixirties in the Ma.ster's office, 'riii-- may l>e done, eith<'r ii|Hin a motion 
 f'lr jiiiljs'inent : .Imii's V. /ii'iil "I' r iifiii < 'i( 1111,1(1, I'J (Jr. 421' ; /•'im/i/s v. Itor/in; 
 '.'Out. 4<>."i: (ir u|Hin a suhseiiueiit ajiplication for the purpose in ('hanilwrs: 
 swwute.s iii/i-a. .Such a direction, however, cannot Im' inserted in a judgment 
 iibtaiiiwl on priniitc. 
 
 Where the ^'rounds u|>on which it is sought so to add parties interested in when 
 thuiiuity of redemption in the Master's office, ap|M'ar in the statmentof claim order to 
 it may jKissihlv Im' still the ih-oikt cour.se to move for j\id)onent, in order to add partieN 
 obtain the <lio ction of the Court to add the parties; but where the necessity l"^".*'''"'*^ 
 for the on I. t dix-s not ap|i«'ar until after judgment lias heen olitained on /nnri/ti; ",',„i"y Qf 
 then the motion may lie made in Cli.iiMUers. The parties already hefore the ,.u,ig„n,. 
 t'liurt are entithKl to notice, liut not those intended to he iulded : /'I'nnrr v. lion, in the 
 I'oiiiijr, 1 Chy. Ch. :m ; lliirn.si„i v. u, ;,■,■, 1 ("hy. Ch. 44<t ; Hmiilih v. ,1/')-„v, M. O. may 
 I Chy. Ch. .V.i; l.ut see Cunninns v. J/i',n.-"i,, 1 Cliy. Ch. ;«)!», where the oi-der '■•'.ol'" 
 was K'-anted ,•■• /„,,/,. But after a final order of foreclosure, or sale, the applica- ta'noa. 
 tiiiii is in jfeneral tin. late: see Or/anl v. nm/lii/, I Cliy. Cli. 272; Shrr/ v. 
 Mini, '.\ Chy. Ch. 227. And where the plaintiff Jiail not acUnl with reiwoimblH 
 'hligence in franiinif his suit, the oiiler was ipfuNwl : /'mtiuuti v. /'dut, 1(» 
 tir.458. 
 
 NVhpnan onler of this kind liaH l>een obtained in ChaniborH, any motion to Setting 
 H't it axide must Im' math* to the Court u|M)n |H'tition : Tirr v. Myi'", 3 C. L. .1. aside 
 
 KI2. 
 
 orders. 
 
 y i*^*^*^ tlip party odderl, clainiH j)arainoiint to th« plaintiiT, h« may move 
 to dmchartre the order adding him a8 a |)arty : Afnnfgmiirrii v. S/nirtit,^ Chy. 
 t *. (>y ; but see note to Unle 127. 
 
824 
 
 COMMKNOEMENT OF ACTIONS. 
 
 Rules 
 307, 308. 
 
 <!(>nfUit be- 
 tween co- 
 (lefeudiintH 
 as tuoquity 
 of re(lenii>- 
 tioii, huw 
 (leter- 
 uiiied 
 
 ()c('iiNiiiii!ill>' it ljii|i|M'iiM tliat. llic pluiiititf i-* iiiialil« to ilt'ti^riiiiiii' wliicii of 
 tli(' ilt'fciidiuits is t'lititlt'd to tlic tM(uity of rcdi'iiiplioii, nr tlicrc iimy Im' awm- 
 Hiet iM'twicii (IcffiKliuits im this |ii)iiit iiitirm. Tlic Court will not Ikiucvh 
 (Iftcriiiiiii' sucli i|iifstiniis <■.'■ /iiiili; tn't-ii iij^iiiiiHt (IcfciKliiiits who lm\i- not 
 H|i|ii'ari'il, l)iit will iii'Diiiiiiiii'c tilt' iisiiiil jiulKinfiit dircctiii^' all tiir (li'fi'ii(liint> 
 t(i rcdcciii, Icaviii^f tliciti to settle tlii'ir iIkIiIs I'li/rr .«■ liy a stpanitc inniiiding ; 
 Itiiliiii.tiiii V. Ihilisini, II (Jr. IC)7, and sec /liniiti// v. 'J'hi.ni/i.'niii, H (Jr. ;!7li ; or 
 may diri'Ct tin- .Master to imniirc as to tiic point ; 'ni/Zii) v. JJci/i/si.n^ |;{ (;|. 
 ■\'Xi. I'lit latterly any smli reference if ordered lias Keen directeil as a separate 
 reference from the f^'i'neral reference in the cause, and so as the plaint itf iiiiiy 
 not l)e put to expense, or ilelay. thereliy : see decree in ./ii/iii^mi \. .\'irr.n; 
 I). H. 27, fo. I.^O. I'nder the Itiilin it woidd seem that whenever any (|iiesti(iii 
 arises I letween co-defendants, the (lefendant raising the (pie.-^tion ninst dilivn- 
 ills statement of defence hotli to the jilaintiff, anil defendant as to win mi tln' 
 (piestion is raised : and on the plaintiff moving for Jud^nuenl, tlii' defendant 
 claiming' relief against the (•o-defendant should lie prepai'i'd to show that the 
 action is also rijK' for trial on the cpiestii n raised lietween himself and co-ilefcii- 
 dani : Itulf .'JL'M ; :!nd .see Slut v. lUrk.s'ii, 42 L. 'V. N. S. 7(J:> ; Fii,ii,«s v. «.«///., 
 4(!h. I). .')M(1. 
 
 Ollirers of 
 corporii- 
 tions nut 
 to lie made 
 defendants 
 merely for 
 diHcovery. 
 
 Oltlcors 
 may l)e par- 
 ties when 
 charged 
 with 
 
 wron^'ful 
 acts. 
 
 Beveral de- 
 fendants ii 
 casuB of 
 doubt. 
 
 JiOT. Where an action is brou},'ht ap;ainHt a corixinitiou 
 agj^regate, no officer of the corporation is to be made a 
 defendant Tor discovery oftly. Chy. 0. ()3. 
 
 Discovery may now he olitained liy the examination of persons who aiv nr 
 have heen officers of r, defendant corporation a^^'pfre^jate umli-i' Ituli |S7, iiliil 
 where prixluotion of diKMUneiits is re(|nired from such defendants, the attiduvit 
 on pr(Kluctioii is to Im- ma(l<' liv one of the officers of the corporation : mcc 
 
 This /'/'/'■ applies to cases where tlie officcPH ai'e nuwle parties for "discDveiy 
 only," tint where the ]ilaintitf charfjfes the officers of a cori (oration with collu- 
 sion and conspiracy, to deprive plaintiff of his riffhts, or (lamaKes are clainieil 
 a^fainst them for wroiiKfnl acts, such officers may lie pii»|K'rly made defendiuits 
 iKitwithstandinK this Itiili' : ('i(/lili<ii v. Tlir <'<iiiniii'iriii/ Tinnlhrx' Assik iatmi, 
 24 (Jr. 'iW ; Cliin' v. The Mmnifiiiiiviiii- ( hnsc Fiir/nri/, 2(» (ir. 227 : /<'«■•' ^■ 
 Nfihon, L. K. 3 Chy. 421t ; 5 L. H. H. L. 1. 
 
 30M. Where in any action the plaintiff is in doubt as to 
 the person from whom he is entitled to redress, he may, in 
 such manner as hereinafter mentioned, or as may be pre- 
 scribeci by any special order, join two or more defendants, 
 to the intent that in such action the question as to wliicb, 
 if any, of the defendants is liable, and to what extent, may 
 be determined as between all parties to the action. J. A. 
 Rule 94. 
 
 Identical with Hnj,'. H. IH'r), (). 1«, r. (i, (1H83, K. 12i)). 
 
 This JOile is iip|ilicahle to actions which have In^en alreiuly commenced, iij 
 well as to those in which the nlivintiff Ih in douht at tlie coinnienceiiieiitof 
 action : ^^^-r Cockhurn, C.f.. in lloiithii-nK, i(r. v. Tnrker, 2 Ex. D. W^^- There 
 the plaintiffH claimed against L. H|)«x;ific jHTfonnance of a contract .dlegud to 
 have l)et^n made by T., the antliori/.ed agent of Ii., they afterwards alleged tlmt 
 L. clenie<l that T. was his aiititorixMl agent, and were therefore in doubt ai; to 
 who wivH liable, and they obtained leave t.o odd T. as defi'iidant, claiiimiK 
 that if he wan not the authorized ligent of L. he wan liable as principal. 
 
 This JUde was applied in llarrcfi v. U. T. Ity. Co., .f- Ii. 11'. /^/. ro.,<tP.K. 
 80, affirmed on amjeal, 7 Ont. Api). 715, where injury was (lone to %»*)* 
 carried by two Railway Companies, but the plaintiff was not able to aswirtam 
 
 The elfect 
 tiiiN represei 
 
 till: lli'lhii 
 *iiit for red, 
 *iifticientlv 
 ■\|>|'. ('as.' (I! 
 '**^4 ; so triis 
 Siller V. I,'(i,i 
 Mini,, W. ■ 
 
 Where till 
 
PARTIKH — TIIIISTRKS. 
 
 825 
 
 Tlir Rule 309. 
 
 wliicli liiii' of liuilwiiy tin- ^f(MHlH wcri- on iit tlic tiiiif of tlit< iiijtiry 
 pluiiitiff wuM Id'IiI I'lititlfd to jdiii iKitli ('oiiiptiiiicH iih (IcfciulaiitN. 
 
 In itiiac'ticiii ItroiiKlit ii^'iiiiiNt an Ii-jhIi [{ailwiiy r'iiiii|>uny cliiiiniii^ <IiiiiiaK'i'H 
 fdi l)i'i':i<'li iif ciiiitriict ill iKit currying ctTtuiii pigH friini a stiitinii in IrtOaiul 
 to Ijivt i|Miiil, and fur trover and (MHivcrHion of tlic pigH. The Conipany 
 liiiviiiK statid in aiiHwtTH to intcrrogatoricH, that Monic of the pigx Wfrc mild 
 liy liii' L. it N. W. |{y. Co., on wIioho lint- part of tlit- joiivm'y liiul to 1m< 
 |Ki'fiprijifd, liiit without ('onininnication witli tlic dffciuhiiits, leave wan given 
 t(. idd the L. ,t N. \V. |{v. To. a.s defendants; Ci-difmi v. Miillmiil, '.'. W. 
 lOi. i:,,. III |„ I!. Ir. 7-1. 
 
 .\s to the person liy wlioni the eo.sts of a HiicceHMful defendant are to 1k' Imimu' 
 si'e notes to /{iili:i',V)l and 1171. 
 
 ;{()!>. '^^^lst('o^^, executors, and a<liiiinistnit()r8 may sue TiuHteiw. 
 
 II 1 iiifi- i'1.1 i exncutorH 
 
 1111(1 bi' sued on liclialf ot, or as represt'utinj,', tlut jji-opcrty aniiadniin- 
 r estate of which they are triiHtees or ropresentutivcH, with- '"''■»•'<'"• 
 out joiiiinf;; any of the parties heiielicially interested in tlie 
 trust or estate, and shall ho considered as reiirescntinj^ 
 such parties in the action ; hut the Court or a Jud<^o may, 
 at any staf,'e of the proceedings, order any of sucii parties 
 to be made parties to the action, either in addition to, or 
 in lieu of, the previously existing parties thereto. J. A. 
 Rule '.If). 
 
 Idetitieal with the Klig. H. lS7."i, < >. Hi, r. 7. (IHS.'J, U. VM. 
 
 (Miy. (). (11 (Ilolinested's 1{. it (). 4!l) provided that in all suits concerning 
 ri'iil or I M'rsonal estate vested in trustees under will, settlement or otherwise, 
 till' trustees should sutliciently represent the iM'iieticiaries suliject to the power 
 of tile ( 'oil rt toadii the lieiietieiariesor any of tiieiii at the hearing. This /tiili- 
 is nil extension of tiiat (MiaiUM-ry Order. 
 
 See Mi'hiiiiiii V. Si;,,;-,; .'iCi fi. T. X. S. 471. 
 
 The effect of Hulf '.W.) is tliat in litigation with strangers, trustees and execii- 
 tnis represent their VMliii^i/iir triis/rii/ ■ /,'«• t 'on/i,',; Cnii/h-r V. IVw(/, 'JO CIl. I). 
 nil : /lull,,, V. /;,///,/, H rh. I). IS'.I : «/•'.../,,■ v. .Wr/.nm, 5 Ont. 2(»!» ; tiiiis in a 
 *iiit for redemption a trusti e of the eipiitv of redemption has lieen held to 
 ■^ilttifieiitiy represent tile trust estate: .I////.S v. ./r,iiii'ii;/fc, i;{ Cll. I). (Wil ; (> 
 Apji. ('us. I'l'.is, sill), noni. ./rn ■.iiii/K v. .Inrilini : sei' />iiii v. f{iiili/ifl'i\ 24 W. K. 
 •M4 ; so trustees of real estate, in a partition suit under '/'//»' I'lirlilinn .\ii : 
 Sliiir V. ii(i<i,; S f'h. I). 4."il ; Siiii/isiiii v. hiiniii, 10 Ch, I). L'S ; (,■<,■ i/rir/i v. 
 U'T.v/-, \V. X. 1H7H, 18(). 
 
 Where t\w siihject <)f a MHttleinent was an «'<initahle chose in action, and the 
 li'Kal estate was not in the trustees of the settlement, but in the trustees under 
 a prior will wiio were charged with misapplication of the fund, the ii'slui (/iic 
 tnmt was held entitled to institute the suit : /'/'/«/ v. Sfi'irarf, W. X. IHTf"), 
 
 tin. 
 
 X finhii i/iii' tiiis-t may prolialily also still be projH'rly joined where the chief 
 iilijfft of the suit is to affect the right of the riMui <iiii' inml .■ l.iiliUW v. Ih-nnm, 
 I'fMlr. 72: hin/ v. /ttiiHif,; 24 W. I{. 844; or the trustee has an adverse 
 interest : l',ii/,i,' v. I'urh'i; L, H. ] V\\\'. 327 ; oi there is a (luestion <if fraud : 
 Hrml V. /',«^ 1 K & .F. 1«:i. 
 
 A plaintitf may sue as a^lininistrntor though not appointed hwfore suit. It 
 H sufficient if he !)«■ duly (pialiHud to act liefore tbe trial: Tiicf v. Itoliimnn, 
 II! Ont. 4:i:i. 
 
 Decisions on the practice under Chy. 0. 61.- The following summary tif 
 (Imsions under the f.irmer Cliy. (). may still 1m' useful :— 
 
'^' 
 
 82G 
 
 COMMBNCKMKNT OF AOTIONH. 
 
 Ral« 300. 
 
 HincuClis . 
 O. tU Court 
 may pm- 
 
 CUOll ill ill I 
 
 cHhon Willi- 
 out c. '/. '. 
 
 X-i^, 
 
 I'riur til Cliy. O. (il, in siiitM ikIvitm' tii tln" cixlni ijik ln'*t, tlii' liittii wuh a 
 ni'O'HHtii'y jiarty, iiinl tlic (.'oiii't liiwl im jiiriHdictiiiii to |ii'imiiiuiici' ii ilrcrtt- in 
 llin alwt'lict' : src ilii-ilanil \. Mi Ihinuhl, \ <ir. Il'i ; /'o;/ii:i v. /I'o.'/i (.'<. 2 tir. 
 l:{7. After that Ordt'i', liiiwrvi'i', tln' C'niirt liml jiiriHili(!tiiiii in all (nii«-h in 
 wliicli the »'.statf was VfHti'd in a triiMtcf wlni was licfiirf the f 'niirt, tn iiriit'fi'd 
 in tlif aliMt'iUM' iif tiif cr.s/iii ifiif trust, and even tn dfcrcfa tnint (Iced void in llii- 
 alwrncf of thf iH'intic'iarirs ; Kimi v. /xnitiiii/, 12 (Ir. 211; 'I'/ioni/isiui \, hmlil, 
 2t'( <ir. ;W1. 'I'lii' (|iii'sti()ii of tln' licnt'ticiarii's ln'in^ particM, (ir imt, \n uwx 
 fiitirclv ill till' iliHcrftiiin nf tin' Court, mch •/inniii;/" v. Juriliin, fi .\|i|). Cjih. 
 (i!W ; 4i) Ij. T. \. S. ri!(,S ; lint this diKcri'tiim haw nut ulwav* Immii iiiiifdniily 
 ••xiTciswI. In Nonir oases it has Ihtii laid down that in tlir cxfrcisc nf tliis 
 diHcrt'tiiin, wlifrcvcr the suit is to si-t asidi' thr trust, or is advnsf to tlif 
 riffhts of till' lifiK'Hciarifs, the Court should still ri'i|iiir(< <m<i or nioii' nf tlif 
 iK'nf'tic'iaricH to lie niadi' |iiirtii's : Jinn/ \, J'rr.st, 1 K. & .1. \HH ; linhir s. 
 Traiiiiir, I'l (Jr. 2ri2 ; and si'c Thiniins v. T'liininr, 1 t'liy, Cli. 4(1, and Ctudi- 
 V. V<«>k<\ 2«(Jr. no. 
 
 In a Mint by one of two mi'ditors (Ixith of whom (^laiincfl |tuyiiiciit mit of the 
 tniHt t-statt' in |iriority to other (H'fditors), at^ainst tlii- rt'iircsfntativi's of tlic 
 dcct'iiwi'd trusti'f, and onr of si'vcral cri'ditors who claimed that all ci'i'ditniN 
 should Im' paid /«'// /jrrv.s//, it was held that all parties interested wire siitfi- 
 Hut trust eiently represented : HVi/Zc v. MrLiini, 21 (Jr. 237. In order that the (!iiiirt 
 >■ ♦ate must nii({ht act under ('hy. (>. til it was necessary that the trust estate slioiilil lie 
 be veHtcjl vested in the trustee, an I'Mcutor with a mere inijilied power of sale over tlif 
 In trustee. ,.,,,jty y;^^,^ ,„,t ,j trustee within the meaning' of the order : linltiui \. Stitnnnril, 
 <> W. H. r>7((. Hull HO!), however, is not so restricted in its terms, ("liy. (). lil 
 provided that the trustee shall rejiresent the ci'stiii i/i'i trust to the same extent 
 that executors in suits coneernin;; personal estate, re|iresent the persons Im'ih' 
 ticially interested, and it would seeni that notwithstanding the (,'eneral tenns 
 of Itiilr 300, that it is only where the trustee has the like alisoliite coiitrnl nver 
 the trust estate which an executor has over iiersonalty, that he can, in ^jeniTiil, 
 1h' said to sufticieiitly represent his vistui i/iif trust : Cit.r v. /Inriinnl, '> Hiiri', 
 2r)3. As to the extent to which the |iersonal representative prior tn Thr 
 J In-Ill lit idii iif I'jstiiti's' .1(7 represented those interested ill the realtv, see /vVc/cv 
 V. /,»//'/■.//, 23 (Jr. 1(17. Under Tlu' Ihriiliitimi nf Kutiilis Art (K. S. (). c. KtS), 
 ss. 3, 4, the |«'rsonal representative may, if his letters of administratinii exteiiii 
 to the realty, as fully represent those interested in the realty as lie diH's tlKw 
 interented in the |HT.sonalty : see Mitlniir \. Mulmir, 17 Ont. lOl. 
 
 It is difficult to hannoni/.e all the decisions which have been iirniinmiL'i'd 
 under the KiiKlish Chancery Act l.j & 1(» Vict. c. HO, s. 42, from wliiuli Cliy. 
 Orfl. ()1 wtVM taken, 
 
 CaseH Oases where cestui que trust required to be added,- Tn a suit for forediMurc, 
 
 where (•.'/, ^ where the e(piitv of redemption was vested in trustees under a settlement, simn' 
 requireil to ,,f ^\^^. In-neticiaries were re<pnred to lie added : (inlilsiiiiil v. Stmirtii inr, '.) Han', 
 be added. ^1^1^ xxxviii ; r,v,y,/y,,- v. Mrllrrsh, 3 W. H. 202; (liut see nnitrn Wilklns v. 
 Iteerrg, 3 \V. H. 3(Ni ; .Innilinix v. Jnnliii,, (i App. Cas. (lOH ; 4.. I>. 'I'. N. S. .')!I3); 
 but not where the trustees were also executors of the de<'ea.sed inortL'affnr, aii'i 
 liiwl tht^ control of the whole estati- out of which the mort^'aireflebt could Ih' piiid: 
 lliiunmii V. Rilri/, !l Hare, .\pp. xl. ; Silr v. Kitsun, 3 1). M. & (!. ll!t; ner 
 where the rrstin's i/iir triistriit were infants, but in such case, the Master wii< 
 directed to inipiire whether a sale or foreclosure, would be more for the liencfit 
 of the infants, and the decree dii-ected him, if lie thought fit, to add the infant* 
 as |iarties in his office. Where the interest of the trustee who was calleil mi t" 
 ticcoiint, wa.s in conflict with that of his rrstiii t/iie trust the latter was addiii : 
 J'lii/iir V. /'iiiirr, L. K. 1 Chy. 327. Where the trustee disputi'<l the riftlitsiif 
 . certain 'f tWcrstuis r/z/c //■(/.</«;// to share in the trust funds, he waslield iiutHiifli- 
 ciently to rejiresent those who.se rights he disputed : Liililrll v. /inumi, 20 dr. 
 72. Ho, also, where the trustee liad disclaimed : Vunnii v. Wmil, W Hare. 
 Ajip. Iviii. In a redemption suit some of the lieneficiaries entitled to tln' 
 nii>rtgage money were recpiired to 1m' added : Stiinsjirlil v. Ilnlisvii, Id Heiiv. 
 1«9, but see Mills v. Jninini/s, 13 Cli. 1). CiS',) ; ./riiniinjs v. Jurilnii, (1 .Vpp. C'a^ 
 (K)8 ; 4.') L. T. N. H. .5!I3 ; vuntni. 
 
PAIITIRS — TRU8TRKH. 
 
 327 
 
 not re- 
 (liilrod to 
 l)(i added. 
 
 Ill a xiiit for liilniiiiiNtriitiiiii, liy u |iliiiiitiir I'liuiiiiii)^ iih u iH'iit'ficiarv uniliT Rttle 309, 
 n will, liiit wlnwf titli' wiiM iloiilitfiil, (iiir of tli4' I'lHtiih i/i't IniHtriil wiiM i'i'(|iiin'(t 
 III Im' iiililid iiH a iMirty iM'fiii-i' tlif lifiiriiijf, in urdtT to liuvc hm niiiMirtunity 
 til iiiKui' til"' (|ni'sti'>ii of the iiliiintiir'n title : h<i;i v. Itmlrlifft, LM \V . U. Hii. 
 Ill a ^iiit for sail' of inortj^aKt'd |iro|>crty, wIhtc tin- 1< K'^I ''state was in the 
 hi'liN. lull till' i'\)'('utl'i\ had an iin|ilii'(i imiwit of Male, it uaH held that Mhe 
 ijiij not Mitticieiitly repreHelit the n.'itiiin i/iii tnin/iiit, an the estate was not 
 "vi'stiil" in her: /{n/liin v. Sliniiiiinl, (i W, li, ."I'll, Imt xm'(/.s where the 
 eM'i'iltiir had an express |)ower of sale ; Slinir v. /Iniililiilliniil, 2 W. |{. (ii")". 
 Ill a ■^iiit to execute the trusts of a will, where the trustee hud only a 
 jHiwi'i' of >ale on the death cif tenants for life who were still living, the 
 |iai-tie> interested ill I'einaiiider were ordered to In> added : I'tijr v. liiiiiniril, 
 Ti iJiiiT, -"i;! : where till' |ilaintitf elaiined iin<ler an assi^rnineiit, the vuli<lity 
 iif wliii'li was denied ItV the tni<tee, who set ll|i that the heir of the assignor 
 \v»>i entitled to the truMt estate, the heir was re(|iiired to 1k' added : Millie v. 
 ihlniiiih,: iLMir. -.m. 
 
 Cases where cestui que trust was not required to be added. In a redemp- (-aHus 
 
 tiiiu suit liy a trustee : ./i iniiini' v. Juiiliin, ti Ajip. (las. (i!W ; 4") h. T. X, H. wlmrec.9. t. 
 ."i!i;{ ; .l////,i v. ./nniiinis, ^ f'h. D. 'i:*!* : •> App. (V, lillS ; l.iit see StmisHrlil v. 
 IMni,,,. IC. Ileav. 1H!I. 
 
 Ill a I'l'deinption suit ajjfainst trustees, where the estate was vestwl in MnrtnaBo 
 llitin liy ii deed alisoliite in form, tliouKh intended as a inortgaK'e, one of <-'ft''eH. 
 till' tniitie-i liiiii^f also lieneHeially intert-sted : K< rr v. Mm-ntii, ti (Jr. 'AA'A, 
 iiiid see it'C'iiniill v. I'liiirlin, 2 (ir.'4H!l. 
 
 Ill a toi'ecliisure suit liv all exeoiitor of a deceased inort^'ajfee : Liiwrnirc \. 
 
 II I' III III' rid, 11 (ir. 20!t : t)ie heirs, or persons lieiieticiully interested, recpiired 
 
 III iiiiiMV, may he added in the Master's office (//;.), liut see now l{. S. (). 
 c. liliS, ss. 4. !• : />///• V. /iin'iiliin, 2ll(Jr. !t!l, as to jHiwerof personal representative 
 111 ciiiivi-y nalty of a testator or intestate. 
 
 Ill a foil closure suit liy a trustee of a iiiortKap- made for the benefit of 
 cirditors ; Fiiisir \. Sutlii iliiml, 2 (ir. 442, or for the lienetit of a tirin where 
 line nf tile partners was dead : Sti/iliiiin v. SIhijikdii, 12 (Jr. 4!t,'} ; 1.") (ir. i)'M. 
 
 Ill a fmeelosure suit a'4'ainst a trustee ; Shair v. Liihlill, 1 U. C. L. .1. ')" ; 
 Wiliiiix \. ll'iriK, H VV. I{. :«l"( ; //iiiiiiinn v. Itili '/, !t Hare, .Vpi). xl. ; Stilr v. 
 AV,'.w;i, ;i I). .M. it (i. lilt; l)Ut see Til'lor v. Miin-i.% 22 L. .1. V,Uy. 1051 ; 
 I'nilijitr V. Millii-ih, 1 .liir. X. S. 2!l!l ; Itivkxnii v. /Jrn/nr, 11 (Jr. .■{Ii2. In 
 the latter ia>e an iiKiuiry was directed whether a sale or foreclosure would 
 lie iiiiire lieiieticial for the infant vintnln iim frnittitit, and they were directttd 
 to Ik- made parties, if the blaster should tliink fit to add them in his office. 
 
 Ill a suit a^fainst a trustee to (enforce a trust for iH'iiefit of creditors : SuitB 
 lldtiiiinii \. Miiniiiin III, 11 Hare, 4!Mi ; H'lxiU v. Jirrtt, !• (Jr. 7H ; and sec against 
 I'liii V. I'lniii, 211 lieav. 5«!(. trustcBB. 
 
 In II suit aj;ainst executors 'and trustees to enforce a contriujt made by the 
 testator ill his lifetime : /icti.ih v. MvCuw, 22 (Ir. }M. 
 
 Ill a siiii liy a trustee aj/aiiist rejiresentatives if a deceiwed trustee to 
 ii'ciiviT iiiiiiieys misa)ipropriated by the latter: Rr ','i<i>i.t-Hiii.-ilu)i v. Tenison, 
 
 a s 
 
 Ilit bv one 
 
 fiKlni III"' trust ajfaiiist executors aiid trustees, to recover 
 
 ( iiiii' rri'xi 
 iHiiiiii'ty wrongfully aiii'iiated by one of them, the othfrt'iilnin i/nr tri'«tciit 
 fielil to Im> unnecessary |M.rties : I'lickmnn \. (J<iiittili( Li/r Annnnnid t'l)., 
 
 In 
 triM 
 Wi'l'e 
 17 til. .VHI. 
 
 In an action for partition, where the shares of some (larties were vestJHl Action for 
 injnistees : Shiiiisiiii v. /hiinii. Id (Ml. I). 2H ; fioixiiich v. Miirxh, W. N. liartitiou- 
 \>\^, '.HI'), aii<l in such a case it is not iieceH.sary to serve the cixtitix ifxr 
 lr''xliiit with the judgment, or to pro.secute any iiKpiiry as to them In-foiv the 
 ■Miwtcr : //). 
 
 In a suit for tlie constniction of a will, and to determine whether or not Suit for 
 tlnTc had iM'eii a forfeiture, the )ierHo.;H entitled under the gift over, lieing conatruc- 
 a class, sonic of whom were i:et ascertained, bnt one of whom was a party ; t'onof will. 
 
'K^^ 
 
 328 
 
 Rule 310. 
 
 Effect (»f 
 vj^prciseii- 
 tation of 
 ./. t. l),v 
 trustee. 
 
 COMMENCfiMKNT OF ACTIONS. 
 
 the trustw WHS held sutticiiciitlv to rfiinwnt those iiiiascertaiiie<l : Whitr 
 V. Chittii, 14 \V. H. 'Mi; mid see iiow /.'<//< ;niJ. 
 
 Effect Of representation. Wlun-e tli" uction is lirini|,'lit liy, nr ii|,'iiiiiKt, a 
 tniste" witliout iiddiiif,' tlie ct.itni.i t/i't (i,!it(Ht us |iiirties, if the (niestioii in 
 i.ssiie !iiis iM'eii fiiirly trii^l, all ) .iities I'epresi ntinl by the trustee wmild, ffcnH'. 
 ally s|Miikiii|s', seem to l)e eoneluded liy the jiid^'iiient, out not utlicrwisf : 
 AVr/r.v V. Liiinii, 2.'{ (Jr. 1(17. Thus a decre • made after replication filnl, 
 disiiiissini^ a hill lirou^ht l>y an ofKcial ass gii'e, was, in the alisencc dj 
 fraud, CDnclusive a^;aillst the creditors of the eitate of wliich he was iissigiici- ; 
 Moriixiiii V. Hiihiiisiiii, I'.MJr. ISO. and .-.ee ./..'.vZ/Hr v. Wnml, I'.MIr. (117. 
 
 Where, however, a suit l)y trustees hail failed for want of evidi nee, it \Vll^ 
 held that a snhseipient suit ini^'ht lie maintained for the same piuposc hy the 
 ri'ntiii ((iif triiff on the discovery of new evidence ; I'if rcf v. /Sinili/, 2 .Int. 
 
 N. S. 
 
 1().J!» ; Mor 
 
 See, however, < 'iiiiiiiiixKi'iiiiri: 
 Rohiiisdii, 1!» (Jr. 4H(». 
 
 I'll., nf L'liiilun V. Uilliill,i^ Jt W. I;. 
 
 tativc. 
 
 I , 
 
 ifade- itIO. Whero, in any action or other proceeding, it is 
 
 «on''ims'no matle to appear tliat a decea.sed i)erHon who wa.i intiirusted 
 reinesen- i" ^^G matters in question lias no le<.fal personal represen- 
 ceedin -h"' t'^*''^'^' ^^^'^ Court or a Jiulse may either proceed in 1 ho absence 
 umyf ) on, of any person representing the estate of the deceased pei- 
 i'^nrt^nay son, or may appoint some person to represent sucli tstatc 
 i^-preKme ^^r 'ill the purposes of the action or other proceed in*,', on 
 such notice to such person or persons, if any, as the Court 
 thinks iit, either specially or hy jiuhlic advertisenu'iit, and 
 notwithstanding that the estate in tpiestion may liavo a 
 suhstantial interest in the matters, or that there may i)e 
 active duties to he performed hy the person so appointed. 
 or that he may represent interests adverse to the plaintiff, 
 or that there may he enihraced in the matter an administra- 
 tion of the (!state whereof reijresentation is soii^dit : and 
 tiM! order so made and any orders consequent tlicreon, 
 shall hind the estate of such deceased person in tiie same 
 manner in every respect as ii there had been a duly 
 appointed legal personal representative of such i)erson, and 
 such legal personal representative had l)een a party to the 
 action or proceeding, a.'id had duly appeared and had sub- 
 mitted his rights and interests to the protection of the 
 Court. K. S. 0. 1877, c. 49, s. 9. 
 
 Chv. (Jen. Ord. "rfi (corresiKnidinj,' to Imp. Act lo & l(i V. c. .*;, s. \\]^aw 
 the (jourt a wide discretion to ap|M)int a representative of the estate of a 
 deceased jxTison for the purposes of an 'letion, or to dispense with a repiescnta- 
 tive, wherever it considered that the estate in question was sntfiiMcntly 
 represented: .luint S/,,,/: l)ix,,,ii,it r„. \. Ihnirn, L. K. H lv(. :{7<>. I'Ut theOiiln 
 wa.s only iiftfKl on where the interest of deceased was of little consei|ueiK'e, awl 
 it was held not to ai»plv whei-e the estate ha<l a sultstaritial interest : s'/ic'inyi' 
 V. Fivi'litiul, (i(Jr. Sflo , Tiiriiiild .V(n/)i;/,v Jliin/: v. ('hiiikIii I, iff .1". '".. IS**'- 
 171 ; !{<• Tiiliiii, (! I'. H. 40, or wheni the jier-sonal representative wmild luivr 
 iiotive duties to jx'rfonn : Fnir/rr v. /{,ii//i/i,ii, '.) Ha. App. 7S, or would reprcsi-iit 
 intert^sts iwlvei-se to the plailltiff > Hindiliii v. him mull, 22 1/. T. .loiu'. I'ili: 
 hfiii' I if Fill V. ilaii/iiiil, ](> IJeav. 5(11, or where the oliject of the suit whs u< 
 wluiinister the estate : Silnr v. Slrin, ] J)r. 204. 
 
PARTIES PERSONAL REPRESENTAT1VK8. 
 
 329 
 
 It was also 1»'1<1 that an appoiiitiiieiit would not Ix" made wiicn' an luliiiinis- 
 tiiitor '"' lili'iii ajipoiiitcd l»y i\w I'robatt- CNmrt would not suffice, and that an 
 admiiiistiiitoi' III/ litiiii dooM notsuffiuicntly represent the estat<' wliere a Keneral 
 iiiiiiiiiiistriition of tiie estate is necessary : hninlisinll v. hi' ml is ml I, !( C!ji. 
 1). ^M; see also Dan. Vr. hlh ed. IMl ; (ith ed. L'ftS, .Moiyan Cliy. Orders 201, 
 Wi'hs/ir \. Hiili.ili /'Jiii/iii'i' <'"., 1.")Cli. I). Ili'.l; l'iirliiis\. ('iili'ilniiin, dr., Ins. <'ii., 
 
 iiich. 1 ).•■•:*■». 
 
 Ciiy. Order '>!> was therefore extende 1 to meet the above dc^iciHidnM, by 
 K. S. (). c. 4!>, s. !), from which the a'x>ve Hi'/r is taken. 
 
 Tliis Itiili lias still iiowever a comparatively limited s<'oim', as tiie representa- 
 tion which may be ordereil under it is only of a dec <ased person •' who was 
 iiiteresti'il in the matti>rs in ipiestion." .V p<'rson. the administration of whose 
 I'state is the subject of the acttion, is not a dec ased person "interested 
 ill the matters in (|Uestion," within the meanin^r of the Ruli'. He must in his 
 lifetime have been interested in the matters in (piestioli : Hii;lliis v. II injlun, 
 t> Out. A pp. :{7;{ ; ■•''''/ '"''' W'fl'xl, ,■ \. Tlir lliili.sli Emiiiir Ins. Cu., 15 ("h. I). 
 H'lK. The le>,'al personal representative of deceased must in such case lie a 
 party to pr ipi'Hv constitute the action: see ///. and Umi'sill v. Mm vis, 1,. ]{. 17 
 K<|."'J<I: Oiili-iim V. Wjlihi,!!', (i I'. J{. 15(1; Li-oiinril v. CliKlisilnli; {\ \\ \{. 142; 
 Turimln Sin' ii/s Jiiml.- v. ('iiiiinlii LiJ'f Ass. Cu,, V.i (!r. 171 ; uidess /tiili''M2 
 api.lies there iieiui' an executor '/'' smi turt. 
 
 The Hull eiiiildes the Court to take one of twi) courses, either (1) to oroceed 
 V itliout a represei)tati\e of the personal estate of a ileceased person wlio may 
 liiivc Imm'Ii interested in the matters in <[uestion ; or, (2) to appoint some |K'rson 
 tci represent such deceased person's |)ersoual estate for the iiurposesof the action. 
 
 Where the (loui't makes an order adopting,' either of these courses, the estate 
 ill cuiestion is liiiund and concluded by 'he proceedinjfs as thoujjrh it had Ih^cu 
 ivpreseiite;! in the litigation by a duly appointed le^^al personal representative. 
 
 Whenever, therefore, it is .lectHsary that tlie real estate of a di'cea.sed per.sJrti 
 sJKiiild lie represented in any action or proceeding, the ('ourt lia<I no power, 
 U-fere '/'. itfi-'ilii/iiiii tif Ksliih's Ail, under this llnlr to prcH'ced in the 
 aliseiice of tiie real representative, or to appoint any per.son to represent such 
 estate, Ml as to bind it by tile proceedings. Hut in the case of the estates of 
 iKMUdiis (lying after the I .i of duly, l,SH(i, the ix'rsonal representative is also the 
 representative of the realty : H. S. <). c. KIS, s. I ; .svv/ rnlr. |{. S. (). c. lid, s. 5,S. 
 
 Kui'tiier provisions are miwle by liuli s Klli, .'124 to enable actions to be prose- 
 iiit'd ill the absence of persons who according to the ordinary jirjictiee sli<iuld 
 !»• jiiiin'd as parties. 
 
 Tile appliiition under the linlr is usually ni.ide by <i- /inrti motion in 
 ClianilM'is, but the order niav be made at the trial of the action : Mfiulis v. 
 'iimliillii. Id \V. |{. .jKa ; llnrisi „ v. 'I'lulliniitn; 22 L. .1. Chy. 7ti ; A'-' /'i/i/>i//, 
 4('li. I). 2I{(I; or on ji, motion for judgment: (liiiriliiiiv. (Ininliirr, 1 Out. 1K4, 
 and see Ciiiiiiis v. ^'ii.'iilniiinii Fii-r mnl l.i/r Ins. Co.. \\) ("Ji. I). t}'M ; or at a 
 -illiseipieiitst.ige of tile action where the party whose estate is to be represented, 
 'lies after the trial: .\lit 'miln/ v. .1 r/"'i7./',S! ( :. I*. 4S. Hefore the order is 
 uiiuie iiiitiee is sometimes retpiired to lie given to the iiernon, if any, who would 
 lie entitled to letters of administration: <'i'rliiis v. I'lilfiluiiiini, h'iri' nml l.ifr 
 
 Rule 310. 
 
 No author- 
 ity to ap- 
 point any 
 one to re- 
 presont 
 realty. 
 
 Applica- 
 tioi' mder 
 statute, 
 liow made. 
 
 /"-■. ''./.. 
 
 sii/ini 
 
 riie ('(iii;t has .i wide discretion either toappoint a represeiilative, or to pro- 
 (■i'i'<l without any representation if it considers the estate in (piestion sunici- 
 intly pliiteeted ; see .Iniiif hisniiiii/ Co. V. lU-inni, \,. l{. H K(p ;W(> ; Tiniiill v. 
 /.'"/'/, 2.lur. N. .S. ;<71 ; llm-itsiHi v. Tuillniii/i r, 22 I,. .1. Cliy. 7(i. 
 
 Hepreseiitatiou of the estate lias been dispensed with, where the deceased 
 Ifrsdii was ill the same interest as the ]ilaintiff : Cor v. Tniiliir, 22 L. .1. ("hy. 
 '•'Ill ; (ir where otl\er persons of the same (dass wen^ before the Court : Aliriii v. 
 -\|(rw(((H, IJ.Iiir. I'lH ; and a representativ(Mif the estate of one of two executors 
 wliii had died insolvent, and to whicii representation coulil not be olitained was 
 alsii dispensed with ; ;I/e„rr v. Munis, L. \{. \\\ Kip V.\\\ : Itmi'l v. Hmullv, 2 W. H. 
 All ; Uni/ir.i v, Jniiis, 1 Sm. it (!. 17 ; and where the dei;eased person's interest 
 Wits very small ■ Minit-i.wiini \. hniiiilns, b. (ir. 2(18; and wiiere his estate was 
 iiisiilvent and his next of kin refn.se<l to take out letters of iwiininiHtrHtion and 
 
 Dlscrtitioit 
 of Court 
 
 Casiis wlien 
 represen- 
 tative diH- 
 p< used 
 witli. 
 
330 
 
 Rule 310. 
 
 Ca8UB 
 
 wliere Jtnte 
 applies. 
 
 I • 
 
 Cnnsont of 
 liisrHon ap- 
 piiintocl 
 iii'i;eKHivr>. 
 
 ■ludKXioiit 
 a^'aitist 
 pcrHoiial 
 ro|)rPHeii- 
 tativt;, liow 
 far biiKlmt;; 
 oil rttal 
 roproHrli- 
 talivc. 
 
 COMMBNCKMENT OF ACTIONS. 
 
 till' f state a|i|K'(ir('(l to liavc no siilmtantiul intenwt in tlif fund Mnij,'lit to lie 
 I'ccovfrcd liy tlif plaintiff, rt'prfscntHtion was (iispi>nHc<l with : ''/'/Y/».< v, r,,/,. 
 iliiiiidii Fin mill Lift' Inx. <'o., lOCIi. I). 584; ^^■V/<,v^•/■ v. Tin Ihitixli E:iniiri 
 /us. I'll., loCli. I). Hi'J ; ivnd even wlitTc the dcccaHcd party wa« sole plaiiitilf 
 and tenant for life, and an arrcar of ineonie remained due to liim, an iuliuin 
 istration suit instit"'ted liy him, W!is, on the a|iplication of the dtffiKliun 
 revived without a'.' representative of the orignial plaintiff, whose cxt'ciitni 
 had died witiionl proviiif?' his will, lint with<mt i^irejudiee to the iij,dit of tin 
 personal represi-ntative of the original plaintiff to intervene : llninnifl v. I'ih, 
 li. H. 7 ('hy. (W4, l)Ut sec liniik nf Mont mil v. Wiilliivr, 1 Chy. Cij. L'lil. 
 
 Where a deceased |H>rsoii had hy an instrument //'/rr i/ro.s made ovci- lih 
 proiierty to the defendant, wlio heeaiiie hound to |)ay his jfrandehildrcii .<Wni 
 ejicli after the death of the settlor, the ( loiirt dis|M'i's(>d with a peisciii.il ii'pri 
 seiitative of the sctthir, in a suit 1>V one of the graildchildr:'!! to ciifincf pay 
 nieiit of the .>:<4<M) : Mtilluilliiiitl v. Ain-nnin, 1!» Cr. 2«H, S. ('. J(l Cr. 1:iL'. 
 
 Where an estate had Iteen administered, and |H'iidiiig tlii' suit for iiiliiiiiii> 
 tration, the personal representativt- died, and all that remained to he (loiic wit^ 
 for the Master to make his ri-port, and it ap|M'ared that tiie estate «a'< iiisol 
 vent, an order was made appointint^ the solicitor of thedeeeased ailiiiiiiistnitrlx 
 to represent the estate: jlf Tnliiii, Ciiok v. 7'iiliiii,Vt 1*. H. 411; and see .SVk/ 
 in 11 II I v. A'/ m/«/ii/, (J (Jr. .'{((."> ; Tniiinti' SiivimiK liiiiik \. I'lniitiln Lid Aumi. I'n 
 VAV.r. 171. 
 
 The Hull' has lieeii held to apply tlioiin;-h the deceased pei-soii was iievcrii 
 party to the action; W'lhulirv. Tin liritixh Kiii/iiri Ins. I'n., .^n/irn, hut cet- 
 Hitijliis V. /fiiiilni, fl Out. App. ;$7.'<, .'ind to an action for administratinii whin 
 the estate is small; /{i ('iilfnii, Fislnr v. ('nllnii, K I'. H. 54L', ;iiiil to actii ii- 
 for the construction of wills; (Inirilnrr v, Uiiiiilnir, 1 Out. isii : see aJMi 
 Miiiilisw liiiiiliillii, low. I{. 48;"), wliere an onler was made at the trial ; and 
 Mci'iiiiliii V. Ailiiii'kli,'M ('. 1*. 4H, where a defendant died after tiie tiiiil. It 
 also applies to priKM'edin^fs on a spi-eial ea-e ; Sinillnir \ , Hiiiiis. 1" .Inr. '.".I; ami 
 to pr(K,'eedinH:s hy |ietition : itr Itiiiikin;!, L. li. ti IvpliOl-o; h.r /niiii I'mmi,. 
 !l llare .App. xlvii. ; anil see MiKimiii v. Ihi liilsim, II,. l.wxii., hut is ({encndjv 
 lipplicahle only where from any cause there is difficulty in ohtaiiiiiiK i'e|)iVNii 
 tatioii of the estate ; Lnim v. Stiirii, Kay App. xii. ; //iiii'.i v. Itnii/nill, 1 111. 
 * Sill. '>:\ ; Hli.1.1 V. /'iihiitiii, lilt heav. 2(1. 
 
 Ill an iw;tion to en fori e a lien I'or an annuity chai'K'ed u;ion le.il estate, il i- 
 not nei-essary to make the personal representative of a dei'eased |hisoii wli" 
 was lialile for its p;iymeiit a party, unless an account of the [lersoiia! estiitf nf 
 the deceased is asked ; I'liliu v. I'liiiiiiinin, 7 <>l'. 17'.', and see linriis \. Citnwh 
 Cii., 7 (Jr. ."iH7. 
 
 In an lU'tion to makeseveral defendiints liahle fora lireaeh of trust, wlien'oiU' 
 died hefore decree having madeawill appointiiiK executors who had not iinivnl 
 the will : (the li diility of the survi\ ing defendants U'liig the smiih'.is that of tii' 
 deceased defendant,) the (Nairt maile an order allowing the suit to lumii'il in 
 the ahselice of a per.sonal represen! itive, reserving leave to the i\|.(ilto|-s t" 
 intervene, if s<> advised when thev hiul proved the will ; //</«/ ///<'<i .I'linl •*■"' 
 <'o. V. Folliill, V.S \.. \{. Ir. .-a".. 
 
 See ir/))(//o(v \. Tlliiiitjisiiii, 11 ("II. I). 41!l. cited in note to Itnli lil.'l'. 
 
 .\ person cannot he appointed to represent an estate under this Itnh witlmiit 
 his consi'iit ; I'liiK-r „/ W'lilis I'll. V. I'lihnir, '2ti lleav. Wi'i; Hill v. IUiiiii'r,% 
 Heav. 372. 'i'lie projH'r person to heap|Hiinted is the person u ho woiildl"- 
 apiminted administrator '/'' lili in hmn nf Fin v. i;iii//iiril, 111 |!i:,v. "Mi! : wlici" 
 the deceased had left a will which was disputed, the |)i'rsoii named as e>ei'iit"r 
 tlierein was appointed ; /A /<■ v. /.mil JSrxIrii, lo Meav. ;V(0. 
 
 .Although a judgment in a suit to which tiie personal icpieseiitiitlvc wii.«:i 
 party was conclusive as regards the personal estate anrl tlio-e henilii'ially iiit'-r 
 esteil then in. whether as legatees oi next of kill ; it was formerly oiilyyci/.vi 
 /io/V' evidence I jf a lialiility of the estate as against thoye iniiiesl.il ni tii' 
 realty, whether a> devisees, or heirs-at law, iind the latter were ;if liU'itv I' 
 rehiit it ; Frills \. Loin n, •S.W.r. Ili7 ; Luv.ll \. Nlhsnii, W (ir 2Sii; Willi* ^ 
 \VillisA'^<'r.UTA; //until ^. Wihli, !,. U. 14 Kij. CW; St,; I v. /,./,- :, ni- r^'H^Vnw 
 
I'AUTIKS — PERSONAL UKl'RESENTATIYES. 
 
 331 
 
 St. li'i'. ■'^'"^ ; ■'^I'li'ii V. /'''■//, 1 ^'. it (.'. ( '. ('. <■>();{, and sec Aii<l> i-«i>n v. Pnim, 14 Rule 311. 
 (Jr. II": •iiid it in tlici'fforc iii ly to tliis evtciit tli;it an order iindti' tlir /{iih 
 will liiinl tlicisi- iiitiTi'sti'il in tli' real cHtatc, t-xocpt in cases i-oniinK' nndci- 7V/c 
 ii.h'iiiiiKif K-<li't''-'<Art(U.>^J.\i:. H)K,) s.-l, inwlii(;li the iicrsmial rfiircHcutalivf 
 
 ..I It'iirfscnts till' realty, lint even lieforc 77i<- J)ir<}/iiliiiii nf h^.ttnti x Act tlie 
 land" "f adi'ui'ascd iiiTson coidd lie sold nuder exeiMition a)j;ainst his |i<>i-sonal 
 n-iirfsciitativc. witlioiit making the persons intereste(l in the realty parties : 
 K. S. O. i|s77i, c. (id, ss. ;t."), .'!(>, to ; and thi' persons interested in the realty 
 Wfvf in-iiiKi Jiiii' limind liy the sale : MfKvttii v. I'/iim, "Jl <ir. ."d.'i. i'liit wheri' 
 till' (I;!!!)! for winch the jiid^'nient was recovered wasoiie t!iat was not pro|ierly 
 cnfiirci till' '.riunslthe realty, the e\e(Mitioii nii^cht hestayed in anaetioii hyheirs- 
 atliiw : Airh i.iiiit v. I'liim. H (Jr. 110; and if a sale tiKik pljue it niij,'ht he 
 s\ur(fi.<fully iiiipeaclied liy the heirat law : Frml \. On; (J ( )nt. .V|ip. tJ'.M). 
 Wlii'ri' tlie jiKlk'inent a^fainst the personal representative was sucijessfully 
 ini|it'aclie(| (JM the ^fronnd of fi'aiid and illn.sion, tlie lieneti(!iaries were entitled 
 tos't nil the .Statute of Limitations aK.iinst the elaiin of the creditor which the 
 ' -■ :i,-}: rcprisentative had oinitterl or ne>,'le<'te(l to plead : Jiinliiii v. Wmnl. I'.l 
 
 ,r. i;i7 
 
 iister ill Clianiliers has power to entertain applications under this Huh 
 ap|Kiiiiliiieiit of a perso-.. to I'epreseiit the estate of a deceased party : 
 
 T, ■ 
 fur tlu -, , 
 Cnllriry. Siniir.K, S r. |{. 42. 
 
 T'li^/^'"•doe•i not authorize tiie llitrh ("oiirt tojjfrant letters prohate of wills, ca- 
 ll tteis nf administration. It merely enaliles the Court to proceed with ■"■ 
 
 ail 
 
 |( [fers It] ailllllllisi I aiioil. il IlieM'l\ eiiaon-:^ llie 1 oio 1 to |iroet-eo «Hll all 
 
 action sua- t ) hind the personal estate of adeceaseil IH'I'SoneVen tliontrh no letters 
 iiriiliate, iir letters of administration, ha\ e heeii ^fiiinted liy tlie ,S(irro>fate ( 'onrt. 
 riie ii'|ire>iiitative ai|thori/.eil to lie appointid l>y this tliili iN not an adminis- 
 tratnr, Imt iii-rly represents the estate for the purpose of the action in whi. U 
 till' nriler is made, vnd he is not entitled to lU't as an administrator of tlie 
 r-tati'. I'M'ipt so far only as it is iieeessarN for him to do so for the pin'imses of 
 till' ailiiiii ill w liich he is so appointed. It li:isiiiit Ih'cii usual to reipiire any 
 viiiritv til he j,'i\en liy a |M'rsoii appointed iiiiiler this lln/i to •.-•present an 
 I'^tate; 1111(1 he has no authority to receiM- any moneys heli ii(,'iin,' to the 
 i'>tat<' lie isappoiliteil to represent, except aecirdinvr to the ex pre s order of the 
 Ci.iii't ill that lieliajf. The (Ninrt has, inider the ori^fiiial < liy. ()., refused to 
 ainiiiiiit .1 |iersoii to receive a sum of money payalile out of ("oiirt to a deceased 
 im-siiii: /f.(i"//i(v \. .Ui-Miihnii, I Drew. L'iVi ; 'W illituii.i v. Alli ii, '.VI l!ea\. l>"i<», 
 iiiul lias ii'fusiii to order payment to the repieseiitati'ie, where one has lieeii 
 :i|il»iiiliti'(i ill the 'iiit : Ihiam v. Siitltm, 1!( I'.euv. (illi. 
 
 All ailiiiiiii-.liator (»</ litnii, however, may lie appointed liy the Siiiron'ato 
 ' iiiirt : |{. ,S. ( >. e. .Ml, s. .'»ti, and sees, r'', a'l.l a i!i!'ree a^fainst him liinds the 
 V'l'iiiral ii'liiiiiiistrator : />ni;s v. i'hiiiili i; "J I'll. .")4."i ; Cinil v. Wntrrl'-ii, \',\ 
 .Sim. ira ; Kill,; ,.//(««/..«)/(, i; (*o|. 4 ; ir////<(m.i v. .4//< », ."W Kea\. (LVl ; jr.««/. 
 /".;/.., V. ll'.)././/,,„(.v7, I,, |{, K K,|. oM ; i'nihis v. Ilisxi'. 12 W. |{. .'"Ml") ; and hy the 
 fiilliiwiii;; liiil, the llij^li Court Mm also power in certain ca.ses to ajipoint an 
 ailiiiiiiistialor, or aduiinistratoi ail titnii. liiilt ;i11 ; 
 
 StII. Whcro no probate of the will of a (It^ceasod person, 
 or letters of adininistration to liis estate, have been ;^rantetl 
 by a Siui;ii.rale C')urt, and rei)res('ntation of such estate is 
 reiiuiredin any aet'on or ))roceedin}j; in the liij^h Court, the 
 Court may appoint sorae person administrator or adminis- 
 trator (III litem {iu'cordinf; as the case may retjuire) to the 
 I'state; and tlit.' ptr.son so a))pointcd shall }^ivethe security 
 ivquired from, and have the rights, authority, nnd responsi- 
 bility (if, an administrator or adtninistrator priidoitc litr 
 us the cast! may be), appointed by the Surroi.^ate Court, 
 but the Court may dispense with HUtdi security. 
 
 Itlltf lloOH 
 
 not super- 
 Kodo jiiris- 
 (lictiun of 
 Surrogate 
 Courts. 
 
 .\ppoiiit 
 nient of 
 AiliniiiiH- 
 initor to 
 ropresont 
 I'stali! in 
 pnifccd- 
 iii|,'K ill 
 Ui^h Court- 
 
 % 
 
 
 t9* 
 
832 COMMENCEMENT OF ACTIONS. 
 
 Rule 312. (fl) Where a general administrator is appointed under 
 this Rule, the same fees shall he payahle in stamps as would 
 he payahle to the Crown, or to the Judge of the Surrogate 
 Court, under any Act then in force, upon the f^'rant of 
 administration of an estate of the same value made hy tlie 
 Surrogate Court. 
 
 (h) Where administration is granted hy the High Court 
 under this liule, the llegistrar shall forthwith trfinsinit bv 
 mail to the Surrogate Clerk, a certilied copy of tli(! ^rmi: 
 and in case the grant is with will annexed, Iic; shall, at t!.;' 
 same time, also transmit to the said Clerk a eortiticd copy 
 of tlie will ; and the Surrogate Clerk shall make similar 
 entries in re9pe>.'t of the documents so transmitted as he 
 makes in resjxict of particulars furnishod to him under 
 section It of Tin' Heriiwil Stdtnfc rcHpeeliiiii the SitrnKiuh- 
 CourtH. 48 V. c. 15), s. 11. 
 
 'riiis /^(// sccniH to iiiitlimi/'.i' flic :i|>|>uiiitiiu'iit of an iiiliiiiiiistiMlin- un'n in 
 tlic (tfiMf wliiTi' no pi'olnitc uf till- will of ii <l('ci'!isf(l |>cisoii, or litti'i-(if adiiiiiii- 
 tnition to lii.-i fstiiti' Iiiim' Ihmmi jjriiiiti'il. It ilocs not ii|i|ii'a|- to aiil li nizc >iuli 
 Hii a|i|ioiiitiii>'iit wlicri' iiroliiiti- or lulniiiiislration lia-< lii'fii ;,'iaiilfil, Imt tli'' 
 ••xecntoi' or luliiiiiiiMlriitor lias dicil or lias lii'coinc iiicaiialdc of actiiiff. 
 
 It is not iiiti'udrd Itv flii^ li'ilr that tlii' liU'iiiic-^ of tlw Siirnijfiitc f'diir' 
 mIioiiIiI he tiansfi'iTi'il totlii' llit,'li Court ; tlir iiitriition is iiic'ily to |ii(i\iili' tnr 
 ni'Ct'Hsitics ari-sin^f in the jironrr-s of an aition, mIhti' rcin'i'scMliitinii "f :in 
 estate is rti|iiiri'i| in an ai't ion anil tlirve lias not Ih'imi (Mnli's-nc^-. oi iirjfli^'.iici 
 on till' [lai't of till' party who iiia>' ri'i|iiirt' the aip|)iiintiiirnt iiiadc : tlir fact tlut 
 II elaini is lilvcly to III- liarri'il liv the Statute of Limitations is iio! a u'l'miiiil ''i' 
 a|>plviiiK under this /,'/'/'■ ; .l/'iVv. Il/7.v.,,,, 1;{ |'. I(. :W; h'i<i<l\. /jt,i<lfil ll':,:i- 
 111!/ i'n., y.w. n. -JHt. 
 
 An application liy a liiortKatfee seekintf to foreclose his iuoit;fawe tija|i|»inil 
 nil administrator to the estate of the mortpi^'or was j,'raiitid : Mmhnyn s. 
 Hiirlt, 7 V. h. T. "JO-' : /.'<■ Cliiiiiililisx „ii,l finiiif/ii Li/r .|«, /■-.,. 12 I'. It. lUH: 
 
 t'lllKI'l'llll \. /'/tl/li/'S, |;{ I'. I!. ~H. I II ri' <'hlllllllli.\S ,^- Cltllllllll l.ij'r .\\-.('n, Slljij:. 
 
 the appointment was made I lefoie action coiimieiieed. 
 
 The Hull' empowers tile < 'ourt to apiioiiit either an adiiiiiiistiatur '"'''/" "i 
 a K''"''!'"' admiiiistrati.r. It was doulited !>>• Moyd, <'., whether an ailliiiiii< 
 triititr I'll I i/( III would Ke a sufficient representative of the realtv .iiiilir 7*/" 
 hri-nhilinii,,/ l-:sl, Ill's .|.7(|{. S. (». e. KlH) : Wlnlsmi v. ,V////VA, .Iiilie ."i, W. 
 
 The order apiKiiiitin;,' an administrator or adiiiiiiistrator '«' IHnii slieulil ii- 
 liearlv as possihle follow the fonii of a trrant of ajlministiatiou niadr in :i lik'- 
 ease liy the Snrroifate ( onrt, and mIioiiIiI contain all the particulars iiixiwaiv 
 to lie entered ill the liook.s of the Surrogate ( 'lerk under the Siuinifatr Hiilil": 
 forfol'in of order see ' 'nun nm v. /'/uli/is, i;t I'. |{, Ml ; 1 lowells SiiinipitiCinirt 
 I'r. pp. HII, 2li(>. : /hiri'.s v. Clnnil.i; '1 I'll. 'AW: as to etfcct nf (rraiit, >'- 
 luiiilkriiir V. /ii'iiiil, 'A Ha. 2tW: for form of order of foreclosiiie atfaiii"! an 
 iwliniuiHtration ml ti/r„i, see pi'n/ v. '-■-7/, \V. N. ISK"), Hi. 
 
 Older for ;J|!J. Wlicro tio oi'dcr for gcucal administrii tloi! is nslied 
 
 account .1 , ... .1 , . /, ,„„ 
 
 ftKftiuMt or re(|inre(l, t)r whore it is siicwii that an v.wcnUn- di' t'»i 
 
 ZT'fnT ''"' ^"I'f lii^s^ t!t'<t^» possession of the hulk of the persdiial nsw-ts 
 
 helonging to tlie estate of a deceased person, sueli executor 
 
PAUTIK8 — INFANTS. 
 
 .^3 
 
 (k son (Di't may on the iipplictation of any ono iutoreBted in ^"^o ^la. 
 the estate of tlio decoasod, aiul, witliout the appointment 
 of anv otlier personal rcfprest^ntative of th« estate, he 
 required to account for any assets of the estate which have 
 conie to liis hands ; and where a i)roper case is made for 
 the ai)i)<)intment l)y the Ilij^h Conrt of a receiver of the 
 estate of a deeeased jjerson who has no lej^^illy appoint<!d 
 perKoiiiil representative, tlie estate may he administered 
 under the (hrection of tiie Conrt without the appointment 
 of any person otlier than the J'eeeiver to r(;i)re8ent the 
 estate". 4H V. e. 13, s. 12. 
 
 I'l'iiir til till' statute ri'uiii wliiirli tliiH A*"/'' is tiikcii it Uiis iiii|ii>ssilil(' to olitaiii 
 .1 Iccri'i' liir till p'liiial ii'iiiiiiiistrjitinii of tlir I'stalc of a dicrasi-d |mtsiiii. witli 
 'lit ImviiiK :' iliilv a]i|)iiiiitr I |ii'rsiiiiiil irpri'si'iilatisr lii-fmi' tlii' ( 'imif, ritlier 
 ,i< plaiiititr or <|iliiiilaiit ; Iwc^aiisc tlir |«;r.siiiial ifprcsnitatiM' was the milv 
 |.'isim wliii liail a lr^,Ml title tu the |iel-(iliai estate ; see /.'///«' ,'il(*, niite. 
 
 Wlirii' the ('(lui't acts iiiider tills A'c/c ami i,'raiits an unler fur tlie jfeiieral 
 iiiiiiiiiiisti-.tlinii iif a iJeceaMMl iiersun's estate, w iiliiiiit rei|iiiriii^a duly a|i|K)inted 
 ipirMiiial 11 |i|i-i litative to lie made a |iait>', it w ill itself assume tile (juties <if a 
 )iii-iiiial ii'|iieseiitative, and will nut siilfep the asset . tu lie paid ii\er tu iie.xt iif 
 kin, li){iiti'es, or devisees, withiiut makinir due inipiiiy as tu the delits uf the 
 (liii'iiseil, and pri'\idiiijf fur their payment nut uf the assets. 
 
 :tl!{. An infant may sue as plaintiff hy his next fricaid ; •"f"'"'*' 
 IK) and may defend any action hy his f^uardian appointed ftn- 
 thiit i)urpose, or by the Ollicial (Guardian as the ease may 
 be.; J. A. lUile JMi. 
 
 The oriL'iiiiil A'"/' had at {n) the wunls "in the manner priictiHed in tlie 
 C.iiirtiif <'haiicery," fuliuwiiiff Kiik- U- 1«7'>, ( >. Hi, v. S, (ISS.'J, l{. 1:W). The 
 wiiniK ill linu'kets are n<it in the Knjf. Rules, which, as res|«rts infnuts, cui- 
 i>'^|Kiiicl iithirw ise w ith the iili iVf. 
 
 Sm. alse W»/(.sL'."iH, '_»:)!», 2t)2. 
 
 I'l.y till' pnu'tiee of tlieCuurt uf Ohaneerv, every suit ur iippliciitiuii : 'V.i- v. 
 Wiiillil. !l ,liir. N. .S. !IS1, un Uhalf uf an Infant iiiUHt lie liy next friend, whu 
 l'nj|Kily will Im' the father if he is nut udverse in interest : U'lm/fW I'luil'iiinii. 
 •i f'li. I), lit, hut wild need nut he .i reliitiiin : <'n>si« v. t'ruxs, H l?ea\. 4.V1, ncr a 
 Nilviiit |M'is(,ii : A', .l/.fV.;/;(«V/, ;{ Chy. ("h. 4'_'H, and theref.ire need nut n'wf 
 -'tiirily hir custs : lulhurs v. Iliirii/), 1 Keen ll'.t, Imt may nut lie a married 
 ""iiiaii, iintwitlistaiidinjr the M. W. Act. 1SS4, s, 1 suli-s.' I.': T/niiinr \. >'/. 
 ;('", :U('li. I). Km; nur a «h'fendant : Ainui, 11 .liir. 258; /'nftn- v A/7//--, 
 ''■'•lli'av. IH ; /;,■ llnnics, W. X, 1M,S;», 177, iinlesM merely a furmal defendant: 
 /■"//"' V. roi,/,„: Ki. 1,. .1. \. (;, (1(1. i„ x,,/,/,, \. lliiAi,i:<. 2 M. .t K. 24.s, it 
 «as said that the Cuurt alw ays e.';peeted next friends tu lie sulistaiitial |wrsuiih, 
 iii'l that they shinild he relatiiins, cunnectiuns ur friends uf the faiiiilv, nut 
 'liiiv Viiliuitee-s : si'calsu luintir v. Cin-llrii, 11) llu. App. 24. and ir."'//\.' I'iDi- 
 
 .■iU'i-A-Vw. : ■faja 
 
 '"/'• ; hut see cawes sii/jrc and iii/ni. Circumstances cuiiiiei'tinK a next 
 
 ■r/'/«, 
 
 ^ncnd tiHi chisely with parties adverse in interest may render him .m impru|K-i' 
 I'Miiii, anil lialile tu Ih' remiived, thuiiRli in.ihinjf is alle(,'ed ajjainst his character, 
 
 ■irwiiiistaiicesur CI induct ; /^• //</",,. s.,. /I,,il<.,iihi/ \. /i/'/v-xi, 2r>('h. I). 243. The 
 I'list'iit iif the next friend shuiild U- ulitaiiied iM-fuie iisin^r his name, thiiiii^h the 
 
 ii[iiiit]«(:iinseiit is nnnecessarv : \y<nfhiiii v. /'i7/<'"W«/(, !) .Iiir. 21(1. If ji suit 
 i- mstitnteil (111 an iiifiint's U'lialt without a next friend, it may, un the deleii 
 ;'aiils iiiiitinii. U' disinisscd with custs. tu Ik- paid hv the sulieitur : Dan. I'rac. 
 •'■'i"<l.,t!7. (Ith ..,!., 10.-,. • 
 

 k ■ 
 
 834 
 
 COMMKNCKMKNT OF ACTIONS. 
 
 ■^ 
 
 Rule 314. N'litwilliMtuiiiliiiK' tliiit^'-t'iit'riilly aiiyuiii- iniiy hiic uniifxt fri'inl (if iiii infHiit, 
 
 tilt' ( -iiiirt will, (III till' a|i|ili('iitiiiii (if till- ilcri-iKliiiit, di' of iiny |ii r^on actiiii/aj 
 next frii'iid (if tlic infant fcr tlic ihii'ikihc of the iiji|ilicati(iii : '.'»</ v, '>'i(v,l' 
 Ri'iiv, 4IK), institute an in(|uiry iintd wlii-tlicr tli)- Hint in f(ir tin- liimtit nf tii)> 
 infant, and if the rcHiilt hIuiwm liiat the iinicfcdiii^fH arc ik it for I lie IxncHtnf 
 fill- infant, tlic suit may !«■ ntaycd : Aiiiliiimi \. Ynhs, '> IM',. \- s. iflrj nr 
 (liHiiiiMHfd with (kimIs. t(i lie |iaid liy tln' next friend : /■'"'• v, Smnr/.i"/', I IImh 
 :>Ki: <,;,l,l:i\, /(,,,, W. N. I.SMl. lil: and Hce AV /■:/.",„„, 7V('./«<'.v v. /.;/«„„ \\ \ 
 T*::. 177 ; Mil' \. Mill. I «'. \.. 'I'. 2.".1.' ; L'd C. I.. .1. LTC. 
 
 Ill all aetiiiii on U-lialf of an infant liy a next friend aetiii)^ w illi llie fatint's 
 authority, rlie fallier died and tlie liiollier, the teslninelitary (.'Uardian, h.is 
 
 i|iri)|rr 
 
 held entitled to Im' sniistitnted as next friend thoiiKli mi <'harife of iu 
 
 eondnet had Ih^cii made aj^aiiiMt the actual next friend ; //"/'/oh 
 
 :(l ("h. I). ■>:\: 
 
 S 
 
 'I'l 
 
 ext friend of an infant w; 
 
 UN indeninitie(| atrainst the coNts of an ii|piKa: 
 
 to the Siiiireine Court out of the infant's estate, where the a|i|ieal was .-wIvish 
 liy more tiian one eoimsel and the Court of A|i|i<'al wan not uiiaiiiinniis' 
 i;,lliii;i/iii,„ V Culliitilliiim, 11 I'. 1{. l.'f. 
 
 [f ni) next friend is nanied a motion may Im' iniide to dismiss the action, with 
 erwtH to U' paid hy the solicitor ; Flight \. Itnl/nni, I Knss. L1(S. 
 
 A ('oni|iriiiiiise cannot lie forced ii|ion infants if it is of no lienelit te tiicm, 
 even tlioii^di agreed to liy (heir counsel ; /th'i/fx \. Sirit/ii,i/i(iiik, '.'lM^. }!. I), 
 ."i77 : or if it is coiitrarv to the (i|iiiiion of their lepiil aihiser: //< Hirclmll, 
 Wils,,,! V. /li,r/n,i/, 44 L. r. N. S. 1i:{ : Hi Cli. 1). 41. 
 
 When the next friend dies |H'iidinK the action a new next friend may U' 
 apiMiinted on an '.'• /<"/7c motion: />iili/\. /hil,/, ii |,. |{. l\, .'tKIt ; |)an. Fonih 
 M. 
 
 The next friend should not tiiLc aii\ step in the cause in iIk 
 
 (if tlic 
 
 infant after he attains twenty-one, for the infant may aliaiidoii the suit; Ih 
 V. Wiiilhfiliniil, 4 Ha. 121'. If the infant adopts the proceedin^fs after ht 
 iM'fidii'.es of i»|if»», he iH'comes lialile for all the costs of tiie suit. 
 
 A next friend who refuses to apjN'al niav lie remoxt'd : />////'// v. Wehfimi. 
 W. N. 1S«<I, 1-_M. 
 
 The next friend, if directed to pay costs, is itersonally lialil«" for thcni, '■ lies* 
 the Court (fives direction otherwise : I'nliii v. Cnli'ii, 'Ih W. I{. r>2X. 
 
 .\s to whether a next friend is entitlc'l to solicitor and t'ieli' costs: sec 
 
 />.( 
 
 (/ V. //(•//»«, 7, .'WCh. I). •.'24. 
 
 .Muirici .til. .V luarned woman may sue for alraiony without a 
 
 women. i !• • 1 
 
 next tnend. 
 
 («) In cast's not providtnl for by The Marrii'd Wimni>i 
 Propcitif 1(7, a married woman may sue as ])luintill' liy l^w 
 next friend. J. A. lUile 97 ; 47 V. c. 10, 8. 11. 
 
 Not the Hiuiie as the Knff. H. 1«7r), (). Id, r. H, (1KS;<, |{. i:W|. 
 In suits for aliinouy a wife could always formerly sue alone ; and may cinic 
 promise the suit and deal with it just lus aiiv other suitor ( an : Viiidmi ' 
 1/1/ (/-/(, l!i C. L. .1. 22!l ; li Out. 7r.t. 
 * I'ractice Prior to The Aftiiiini M'tniniii'ii Ar( of 1872, a married wonmu (■oiiW diit''"' 
 
 hufore .\ct at law without her hushand t<*iinv joined as a co-plaintifT l.iish- I'nu:. CiiHl 
 of 1872. ed.).'W. In Kipiity she mi^lit soinetiiues Im' sole idiiint'tf, Iml wa^ re<jiiinKl 
 
 toHUehv IK xt frit nd. It liiid lonj^ U'cii a settled rule of tlieCmnt ef f'liniicin, 
 that wherever the hiislian/l and wife without a next friend sue ur ili'f'nd 
 tinfi'ther, or where the Inisliand sues as next friend of his wife, the miit ^r 
 (Jt-feiice is |-e(jarded as that of the husbuid alone, and would iioi picjiiiliw «'i.^ 
 future claim by the wife: \V,d; \. /'/(/•/•,/, 2 Keen iVl, 7<> ; Ih'iiln:- y Kmiif,] 
 S. & S. IH.'); At'iir V. Sfiiitfi, \ ,1. & VV. «i5. Wheiv the suit related Ui the 
 Hi'parate property of a wifv, she was renuitiKl to sue hy next frieiul, otlierwii" 
 
 a. 
 
PARTIES — MAIUtlED WOMEN. 
 
 tlip ilcfciidiuit initflit (Iciimr: /tnii/iliiii/ v. /'mth; 1 «ir. 2(m; ; lihwhlm ni v. 
 Mr K mill I/, .'t Cliy. Cli. <'k> ; M'"/.' v. J'iiikii;.sii/iiu. 'I'lmt rule up|ili((l imt only 
 wlii'i-c :i liill "HH lilf<l, Imt in all a|i|iliciitiiinH niiul<' t-xcluHivi'lv (iii tlie wife's 
 U'liiilf : A'' H'lnifili, \'i Mfiiv. "rflH ; I'lmmj/ \. (/irriii, 1 Cliy. fli. ill ; and tliis 
 priicticf 'wi- lint altfi't'd l)y tlic .ludiciitiirc Xvtn in iMi^land: RnliniH v. Kiiiii>, 
 7 Cli. I>. h;}(». WlitTf tin- wiff Hiicd liy ni-xf frirnd, tln' liuxhand wiim still often 
 ii(|iiir<'d to 111- M pai'ty, and lif «a,s iiMually niadea defendant : Wn/.r \, /'nrhr, 
 Hi,liril.s V. KiViiK, 7('\\. I>. H',M> ; nee, linwever, .Mi'iiilnlf v. <>/}/irii/i(iiii<'r. 
 
 335 
 
 Rule 314. 
 
 "/'' 
 
 lis V. /uiiiiK, 7('\\. I'. >^'.M) ; nee, linwever, .Vmnli'Jf v. 
 471,. T. N.S. 7»'J; ;V.» I,. .1. <;. M. ."idit: iinlesM he luul no adverse inliiest, in wliieli 
 cii-ie lie liilKlit l>e eii-|ilaintitf : Mrililinn ni/l v. ('mii/ihil/, ]H |'.ea\. 1M4 ; lUiird- 
 M,rr V. Iifi\t«,fh ^ II. A M. ■•'.•1 ; /''/'•'••' V. Piniil. 7 lieav. l.'KH. 
 
 So wlii'i'e a suit was Itrmi^'lit a^'iiinst a iiiarned woman as liaviii<^' separate 
 (Htute it was iiecfHsary to join lier liiiNliaiid iiiid K''l"''ally tlie trusties of sueli 
 f.4rtte lis ilifendants ; see Mifnuil v. I 'liivliishr, ',\ i). 1$. I). "22; lliiiicniLx v. 
 I,iililii'li>, ;t('. I'. I). 1H7 ; Mi-h'iiiliiiii- V. Muriili'i, L'l (ir. Ml ; <'''thn v. hirhv- 
 .-ml, 11 Oil. 1». tW7; /''/"H'lr v. Iliil/'i; ir>('li. I). Wkk 
 
 .\ diauK'e was intriKluced in 1H72, l>y T/ir Miii-rifil Whhkui's I'luinutu .i'V, m. w. Act 
 ;C) Vii^t c. Hi, (see Kev. Stat. 1S77, c. 125, see. 2'l), wliicii was as follows : of 1872. 
 
 ''2(1. .\ married woman may maintain an u'ion in lier own name for the SuitR by 
 of ,iiiy wujfes, earnin^'K, money and |iro|Mvty liy this or any other Act marriod 
 
 rii'iviM", 
 
 Int. App. 77, 
 Thf Aiiirn'i'il 
 
 Suits by 
 I pro 
 liflini'il to lie her separate pi-oiM-rty, and Hhall have in her own niime the same women, 
 iiiiiedii's, ajfainst all |H'rsoim wliomsiMiver for the protection and security of such 
 wiijfi's, eaiiiiiiK's, money, and pro|»erty, and of any chattels or other her separate 
 liriiiHiity for her own use, as if sueli waives, earnings, money, chattels and pro- 
 |H'rty iH'iiiiip'd to her as an unmarrie I woman, and any marrie<l woman may Im- Suits 
 siiiii iir iireeeedeii apiinst separately fxiiin her l.iisltaiid in res|iect of any of her against. 
 -I'liaiate (lilits, entfiHremcnts, coiitriu;ts or torts, as if she were unmarri^Kl." S.'i 
 V. c. Hi, s. !t. 
 
 It HeeniH to have lieeii estal'lishi'd in /.ini'.iiiii v. /.aiif/iiw, 3 Ont. 
 tliat till' |H'rsoiiiil nroiK'rty enjoyed 1)V a iiiarri»'<l woman under 
 II'-wi'h'v I'lufiriiii .ll■^s of IH:')!! and 1S72 an<l ifiil estate enjoyed liy tier under 
 llie Act (if 1S72, were her "se|Miriite property" within tlie nieanin(( of 
 till' 'iIkivc see. 2<t so as to enalile her to sue alone in n's|K'et tiienK)f. 
 
 Diiwer not set apart wiw ht'hl to lie se|Mvrat«t entate : /)iiii;/ltis v. //ii/rhliixini, 
 
 ('.Out. m. 
 
 .Vfter tile .\et of 1872 iii those cases in which it allowed a married woman 
 til lie sued alone, or enal)le<l her to sue without a next friend, it was not neces- 
 sary' til iiiaPe I'.er hushand a jiarty, unless he iiaf'. an interest, and was made a 
 iwrty i-i res|M'ct of tjiat iiiten-st . see Miiiirliim- v. Mur/ilii/, 21 <Jr. HO; 
 lhii.ilin'1 V. II7mV,»..,v, 22<ir. 222; M uiilnih v. (t'Sn/liimi, 25 (Jr. ;«12 ; lint if 
 tlic liusliiiiiil was joined as a co-plaintiff, the wife was re(piire<l to sue hy next 
 friend, iiflierwise the rule applied that the suit wa.i that of the husband : Jir 
 S/ieinriii- .]/■ I liuliilll, 1<I (ir. 4(i7 : )'')"//,</ V. Hulxilxinl , 2 Ont. VM. 
 
 Tile .Vii (if 1S72 eiialiled a wife to sue alone and without m next friend in 
 ri'liitidii tn Mich estate only as liy that, or any other .Vet, is (liclare<l to lie her 
 "si'liiiratc luiiiH'rty " : llniiiiiiii v. liiini'iinicinhi; ii l". |{. H4 ; lliifjur \. Afoit- 
 liiii'l, 7 P. Ii. .VI. If the pro|M'rty did not answer the description of separati' 
 jiroin'ily. -lie was coiiiiH'lled t i .sue liy next, frii'nd : I'l-nim v. S,,l,ii, 7 I'. K. 41. 
 riic .\ct of 1S72 was then the iildy A<a which Rave the (luality of separate 
 I'ntate til Uiis.itled pro)M-rty of a marrieil woman ; and wL rlier or not her 
 iiiisittlcii ii:il property lUMpiired that iiualitv de|iended n[Kin whether the 
 iimrriuKi took iilace liefore or after 2n(! March, 1872: see K. S. (). 1877, 
 '■• 12."i, s. •JO, aiKl (.■uilfnii \. l/iirrisiw, 8 I'. U. 272. 
 
 Riili '.17 uf tile (lri^fiIlal .1. .\. 1881, was the next step, and I'ollowed in a great OriKinal 
 iiiciisiirc, Imr was also an extension of, the .Vet of 1872. Rule 97. 
 
 I 111- .\ct of 1.S72 reiidered a wife uapalile of being sued at law, an Iwfpre the 
 Act she o mill 1m' in Kipiity, separately fi-om her husband in resiH'ct of her 
 i-fpiiriteciigaKenieuts, cimtractH or torts; Imt it wits only in reHjM-ct of her 
 separate prii|«.rty, or lier contrmits in regard t<» any .se|»arate business carried 
 "ntiylier: see_/V, r// v. XrigH, ^2 ( '. 1'. 2.11, that she could sue alone. The 
 'irigmal /{I'/r !)7 eiialiled her to sue alone, not »mly in resjM'ct of her separatt* 
 
I ;. 
 
 336 
 
 COMMKNCKMKNT OF ACTIONS. 
 
 Rule 314. 
 
 I'rusiint 
 praotict!, 
 iiii(i(!i- It 
 O., 1KM7. 
 c. 132. 
 
 rwtiiti', Imt uInu ill '•••st'H I'fliitiiiK to liiT Hfpariitc (■ii>fiiK''iii<'iit,N, cdiitnutH or 
 tortH; 1111(1 liy Icjivc in all other riiwM in which thfrctofort' a iifxt friend was 
 iKwxsary, ii|ioii h'iviii^' Hcciirity for conts, if the (Niiirt HJioiild think tit. 
 
 I'lith'r tiic (Min-fs|ioii(linj,' Kn^'lisli Hull' n maniiMl woiiniii in ii(ii|it (if a 
 MHpanitc iiiconic of t,'l,1">" \\iiM not ri(|iiiii'<l to ^fi\f security for cost^ im cjlitiiin 
 iiif,' li'avc to (iefeiid separately: A'"'/ \. .V<»/, lit ( 'li. I). .-)|(l. So n iimrricd 
 wiinian Hiiin^'' alone without a next friend, and h.iviii;; snllieieiit sepaiiite |irii|i 
 ertv to pav (MMts of the aetion, ua-i not reiplileij to ;,'ive seeUlitV : Hraii'ii V 
 Nniih, !m). H. I). r.L'. 
 
 There «a.M held to lie not h in;,' in the I'uh to preclude the Court froiii eNeni.. 
 iiij^ the power to ;,'ive leave after action lirou^dil : KiiKj^iiiiin \, h'hiiisni'ii,, li 
 <^. I*. I). \'2'J, where refusal to stay an action was coiisidei-ed e(pii\;ileiit t" 
 leave to sue without next friend. 
 
 On 1st .Inly, IHSI, 77/. M,',-,i.,l ir.///,'//.s I'ri'imlii .1-/, IHMI, ( 17 Vict. 
 
 Married 
 woman to 
 b<) capal)le 
 of 'ijiddinji 
 property as 
 a fi'iiie mlc. 
 
 c. lit), came into operation (now |{. S. < ). 1HH7, e. IHl'), and the capacity of a mar 
 ried woman to sue and lie sued, will now he piveriad by s. Ji of that Act, and 
 theiic<'forward a married woman plaintiff will stand in the same position .mi fur 
 as wecui'ity for costs is concerned .-is .-iny other plaintitt' : 'I'lutlfnll \. II//mi;i, s 
 I'. I). IM, thou^fh she hits no .separate e.--tate : 10 /.i(f'(i, :<(» ( !h. 1 ». I1,S ; aniievcn 
 though the caiiHc of action may have arisen prior to 1st .lulv. ISSl: Sininiin 
 v. «'iril Srfi-iv Sii/i/i/ii, IS L. '!"'. N. .S. 1S,'> ; Jiiiiuk v. Itiiinn"!, 'M W. I{. 7Hli; 
 »!» L. T. .\. .S. :ilM». 
 
 •Section W of the l{. S. <). c. I;!l', is as follows : - 
 
 "3. (1) A married woman shall Ih' capalile of lU'iiniriiiK, holdiiiK, and ilis|>(i>' 
 iiiK l>y w'ill or otherwise, of any real or personal projM'riv as her separattt 
 property, in the same manner as if she with a ffiar vtli, witlioilt the interven- 
 tion of a.iy trustee. 
 
 (2) A i.uarrie.d woman shall ti.- eapalile of entering into and renderimf herself 
 liat)li' ;ii ves]H'ct of and to the extent of her sepjirate projierty on any contriu't, 
 and of .suing and iH-iiig sued, in jill ri'S|H'cts as if she was u fimi snli. and her 
 husliand need not 1m- joined with her as plaint itf or defendant, or lie iniuli' h 
 party to any action or other legal priM'ceding lirought hy oi taken against her; 
 and any ^lamage^< or costs recovererl liy her in any such action or pnicrediiiK 
 shall Im' her separate proin-rty ; and any damages or costs recovered against 
 her in any sncli action or proceeding shall Im' payable out of her .-i paniti' 
 pr<)|M'rty, and not otherwise. 
 
 (.3) Kvi-ry coiitmct entered int) liy a niar)'ie 1 woman shall l>e deenjcd to lie 
 a contract entered into by her with res|H'ct to a:i I lo iiiii.l iier separate pniperty. 
 unless the contrary is shewn. 
 
 (4) Kvery contnu:t entered into liy a married woman with res|K(t to and to 
 hind her .separate proi^rty, shall liiiid not only tlie separate property wliidi she 
 is po.ssessed of or entitled to at the date of tiic contract, liut also all separilt"' 
 property which she may thereaft<'r ac(|uire." 
 
 This secLiou is in the terms of the Flng. Act of 1H.S2, in Hi 4(1 \'. c. 7"i. 
 
 So far as it enlarges the liability of a married woman t»r her caiiafity te 
 contnuit it is not retrosiwctive. Sub-sections (.'<) and (4) have l>een held not tn 
 be retrospective so as to include contriu^ts made before the .Act: I'diinliin v. 
 Lfi/la,i,l, 27 Ch. I). ()3;' ; Titmhit/I v. Fonuan, 1"> (.^ Jl. 1). 2:{4 ; .\<>ll v. H>, 11 
 I'. H. its. 
 
 Hub-sec. (4) d<M'H not enable a married woman, who has no .separate pmiHTtv, 
 to contract so as to hind separate pro|»-rty she may afterwards acipiire : sec Mr 
 
 S/iiikis/mir, 30 ('h. 1). HJ'.I ; I'iiIUmi- v. '>'/(/•;(*//, and other case>, /»//i 
 
 The .\ct se( 
 
 ems to ap|)ly in the case o 
 
 .f all 
 
 married women, w 
 
 hetl 
 
 ic<i 
 lifter tllilt 
 
 icr iiiarr 
 
 before or after 1st .Fnly, 1HH4, to enable them to sue or be sued a! 
 
 ilate, wdiether in res|iect of a cause of action arising before or s .'ter tliatdatt: 
 
 Jiimi'x V. liinniwl. 4!t li. T. N. S. ;«K) ; 'M W. K. 7St>. an a<'tion for tr('s|>ii.'<s 
 
 committ(«d before the Act brought in her own name : llldurtstir^d 
 
 I'll ill i/tln 
 
 ^'2il. M. I). .5;U an wtion of contract ; Wi/i/on v. WiiiKloir, V\*l. M- !>• "'*•• 
 
 WMon V. DclMhr, 14 «J M. I). XV.); L, 
 
 torts. 
 
 F<>.r, \r)(l. H. 1). ()(w, actions fer 
 
PARTIES — MAUKIKl) WOMEN. 
 
 337 
 
 Koinodiex 
 of married 
 woman for 
 Iirotootion 
 
 Ullll HO- 
 
 iMirlty of 
 Huparatn 
 property. 
 
 Liability 
 (lopiiiidont 
 on poRHeH- 
 Hioii of Hep- 
 iirate oh- 
 tato iiiidor 
 Act of IMVa. 
 
 rn(l<'r47 V. c. It), h. 22 (now rcpt'iilcil), tlio ri^flit to Mni>, iind tht* lialiility Rule 814. 
 to Ik' Mif(l im<lt'r tilt! Act of 1H72 wolf pn'McrvtHl ; hoo Sf<itl v. U'l/r, mtfira. 
 
 Tiiiiit iinilt-r tlu- Stntut^-M of TiimitatioiiH riiiiH aKainst a niarriiMl woman fnini 
 thf connii.-n<Tm.-»it of tl..- A(!t ; \V,/,ln„ >. y,,,!, 32 W. U H28, 51 T.. T. N. H. 
 •JSSit : SI-*' alto )ti Liiiln llnntiniiH, Xt Cli. I». !M. 
 
 Section 14 of K. S. (). e. 142 i« an folIowM :- 
 
 "14. Kvcrv woman, wlictlicr inarrii'd lirforc or after tliJH. Aft, ftliall have in 
 lier own niiine af^ainHt all jier^onx wlicniMH'ver, iiKtliulin^' her liUHJiand, the same 
 n-niedif' for the pii)te<-tion and Me<;iirity of her own separate property, as if 
 sin;h pn>|ierty iM-lon^fol to her an a /(;/(•■ khIc, Imt, except an aforesaid, no Iuih 
 ImikI or wife sliall Im* entitle<l to Nile the otiier for a tort. In any proceeding 
 under this H<-ction it kIiiiII lie siilKcicnt to allege niicIi proiM-rty to Ih' her 
 |mi|ierty : and in any iirix:eedin^ under this section a huslianil or wife simll Ix' 
 ciiiii|M-teiit to )^ive evidence aRaiiist eiich other." 
 
 \ hiisliiiiid may hrin^' an action af^jiinst his wife for money lent and for 
 iiionev paid at her rtspiest after marriage : Hiit/rr \\ /iii//<i; 14 </. W. I). M.H1 ; 
 iitfinned in apiN-al, U\ *i. I'.. D. :<7I: s... .U'f/,,;/,„ v. ,l/<»/,y./../. •_'(»</. II. I). 
 .")2(t ; and a wife may sue her hiisliund to recuver possessicm of hei real estate : 
 
 rill v. Till, i.-.ont.'i:a 
 
 K. S. (). 1H77, c. 12"i. s. 2(1, wiis held to atl'ect pic«'ediire only, mid not to 
 n-nder a married woman liahle in respect of her M)////i«y« cxeept in the same 
 way as siic was ftmiierly lialile in Kipiity, that is to say, hci' lialiility was miuli' 
 tii(le|H-iiil ii|Min th)' ;"isscs..iiiii iif separate esditc ; and that f.ict was therefore 
 nHpiinfl to l>e iille^ed : hinliini v. I{ici\ \ Out. .Vpp. Mi; Sloinluiil Umik v. 
 HdiiII'w.W Out. .Vpp. '.i:»; see /•'(//'/ v. Mr,\rtlnn\ 'S> C. I'. 1(17; 27 < '. I'. l"i. 
 .S-e also /«r ISnimuell, I^..!., .Mfninl v. I'hirhi xln-, \\ i}. ]\. I). 72H ; aii<! 
 Ihirrriiit V. Hiiktllii, I! '^ 15. I). 177- These autlioritien were followed in 
 sul»«s|iieiit casi-s, thoiit,di not without < xpressions of dissent on the part of 
 Willie of the .lud(,'es : see t'liliki v. I 'n i'llitnii, 4.'! I'. ('. i}. II. oM, ; '///'/ffn V, 
 I'allir^'m, \', r. f. <^. IJ. .V«i ; I/rHsiii \'. H'liiii. 2 <hit. ;«I2 ; '/ v. /{ — , 
 
 !l i*. K. 174 anil .((e.//, 1 C. 1,. T. ::«l. Sc.^ also .Am,., v. Hhl, it;i,, W. N. 
 1SS4, :«l. 
 
 It was at firnt siip|K>sc4l that the intention of the I'ln^dish .Vet of IHS2, and of 
 thfalnive Out. .Vet of ISXI, was In make the material cliaiiufc that the |K>werof 
 (iiiiit^aiid l»'iii(f sued, in respect of a eont met, should lie, as in t lie case of a f< mfrntlf, 
 imt ri'tfuliteil liy the po.ssession of sejiarate estate, :i,nd some of the earlier cases 
 (ifciilHl ill Knjfland under the .Vi't of 1SH2 tended to shew that the pLiiiititf need 
 nut aver the iHisscsiini nf separate estate .IS the foiinilation of her right to sue ; 
 tliat the iiiurriiHl woman mivrlit he sued " as if she was a fviiit An/r," ;vnd unless 
 »lli', hy pleading, raix-d the iplestion of sepaiitte estate or of its lieilig liound, 
 judgiiieiit might Im> " recovereil against her" ; Imt that since "any damages or 
 (iistt if'tiivereil agiiiiist her," jire to lie " p:iyal)le out of her separate property 
 iiiiil not otlierwis«-," eseciitioii could only issue against, and tnerefore only in 
 
 the event of her (Miswessing. such sepiilate junpeltN' : arf <•' iiiisliin v. Miniiiiinl, 
 T.'^l.. T. .lo:ii. KrJ: /lrn,r„ \. Mni;,,i„. ;•_' li. |{. Ir. 122; and /'•rtiv. Shilnn, 
 >>. N. I.sxi, (il, ill which the appareiilh' contlictiiig decision in Mihik \. Miilli- 
 ;/'iii, \V. N. |,s^^, :{4, is explained : Th', *^hi.h,;- Itonl. v. /{,i,l/nril, 1(» P. |{. (>|!l. 
 llic ca-es >\ere, however. Hot llllifoiiil, Mild later eases were not consistent with 
 this view : ./-„„., v. h:hi,it,,,i, \V. N. 1SS|, WW; i;/,„irisli rxhii; liiiiikliin Co. v. 
 I'liillil,,, l-.X^i. I!. I). :,Xi; /;, ,s7»,/,.«,„,r,-. hnikiii V. L,ikii\ »» Cli. I). l(i'.» ; and 
 It IS to Ih. iihser\(^| that ill (•'inittiiii \. M'l'/iinrtl, siiiirii, it was shewn that 
 the defendant had separate estate. 
 
 when the jKiint eame Is-fdi-c the f'oiirt of Appeal, however, it w;is ilecideil 
 • hat the (iisahility iif a married woman ri> iciiitract was only removed liy the 
 .Vt, Ml us to eiiaMe her to enter into . I liiiidiiii; ciiiitract in i'es|M'ct of her separ- 
 iitc |irii|nTty. If she has nu -ep.aiate piopeity she cannot contract. V plaintil)', 
 then-fore, alleging in his statement of claim .i contract hy a marrieil woman 
 iiiiiKt allege and prov<' the cxistcni-eof separate pro|iertv, at tlii' time of entering' 
 I'lto the alleg,.,| ,.,,iif|.acl : I'lil/i.frr v. llin-mii, !'.» <ji. \\. I). .'ilK : Trtlni v. 
 ';;/>•</,, :tii W. H. 'h; ; :,; I,. T. N. s. (i7:{ ; .l/-Y,./,r v. I'lllrir, II < >. I'.. I). ii7:» : 
 ll"-kft(\. T<i>Ur, 1!H/. I!. I). 7. 
 
 J.A. 22 
 
 KtToct In 
 tliiHruspoct 
 of thu pro- 
 Hcnt Act, 
 U. S. <) , 
 e. i;i2. 
 
i 
 
 '^ 
 
 3518 COMMKNCKMKN'l OK ACTIONS. 
 
 Rule 314. Ill I'lii^'liiiul till I'lai'lirf .Mii4irh' idiji'^ |in)\ idr h|M'(miiIIv («••<■ (.'Wi, Sikiw A 
 \Viiisl;iiil.y Ann. I'lar. IHH.S, p. lllMI ; \\ il'.uii .1 ml. Art. 7tli I'M. Vdii) il>;it w lien 
 a iiiiiri'ii'il wiiiiKiii --Ill's tildiii', III' IN -^iiiil, it iiiiist ii|i|ii>Mi' ii|Hin tlii- I'lici nf Ijii' writ 
 tliiit -ln' i-i KiiiiiK, 111' lii'iny siii'il, ill I'oiPi'i't nf lii'i' M'|iiii'iit(' t'ntati'. 'I'lurc is ik, 
 ('iii'i'i"<|i' iMiliiiK' i'l'i^ isi'iii in tlii'Onl. Itnti \ 'mt tln' i'<in-<ti-ii('tiiiii (ihu'i'il iiimn tjii' 
 Act is, u> ill Kii^^ImuiI. llial .'I niairii'il vmimimii iiiiist liaxc si |iai'ati'i'st^iii' i(ifiiii|„| 
 II iiiiliiiitv nil a ciiiKiart, anil a |ilailitill' iniist alli'^i- anil pi'iivc lln' I'xi^ii'iio. i,l 
 Hr|(ariili' I'slatc in ri'-iiccl nf which she is ciititlcil tu contract : .l/u/.-i./s lliiiik y, 
 Itnir, !l ('. L. T. ill? ; Miiiirt \. JiKlinmi. ',1 ( '. L. T. :;;!l ; 2,"i ( '. |„ ,1. |ii>) ; /;„„(. 
 ufiUtmiiii ri-( \. ir"(«/ciw'A', (licfurc l''ci'Kii*'n .1., HKlct. IHM'.I). 
 
 'I'hc law remains as licfnrc the Act, that sciiaratc |ii'ii|i rtv which i- -uhji'it t" 
 a restraint nii ant ici pat inn, is in it s. 'pa rate priiprrt\ iipun u hich a inil'/iiiin'riin 
 operate: liiirxiUy. T<nniii\ l.'H,>. I',. I ). U'M ■ .\fii/is\. IIi>,I„h, II !,. |;. Jr.'J.VS' 
 S.:.ll V. Miuhil, H) i). 11. I). iL'tt; Itohll \. Tii.'br, I'.H.t. I',. I ). 7 ; see iijv, 
 /•//.. N. r<l:<iil'l'iii,. 17 CU. I). IVI : S,„,tl, v. Lurn.H, IMCh. It. ;,:(I : /;, //,,/,„/„, 
 :tl Ch. I). :W.". ; /;, />,.,< n, X, Ch. I). J; S,„;il, v. II7m7/'.,'/'. ;tl W. It. .||4; 
 /{nl„,t.H\. Uolkiii.i. Hi L. .1. •.>. I'.. .ViL'; lt< lilihiiilh.'M Ch. I ). .'..•W : /.', Amlmn. 
 ;{n ( 'li. I). I.V.I ; cMcpt (iiniler sec. 2(liif the .\('t I a .iiiil^rinent oil a contract I'liti'nil 
 into lieloi'e iiiarria;,'e, which is nnairei'ted liy -ncli a restraint, contiiined in uiiv 
 settleincnt of her pio|«'i't\, niMile |py the inarrie I woiiiaii herself; -.re l!ih-iiH\. 
 I'll mil i\ siiiHii. It would Hceni, therefore, that the po-,sessi(in of ^iicli se|iai'iilc 
 estate only, will not lie siifHcienl to eiiiilile her to enter into a coiilract ; wr 
 Ihrl.ilt \. '/'iikI,ii; nii/ira. 
 
 The execution liy a married woman of u piieral power of apiH'iiitiMi'iit li.v 
 will makes the property appointed lialile to meet her delits : see sec. li (if till' 
 A(;t. 'riiis was not the CISC lii'fore the . Vet and the section does not apijly in 
 the case of a contract entered into hefore the .Set : A'' A'"/"/, .V.) I,. T. N. S. 
 2<).'l. 
 
 The .\ct, in enlartfint,' the capacity of a married woman to take pmiMrty ii> 
 liei' sep.'irale pro|M'rty, cloes not affect the rule that on a i(\f{ to a liiishaiiil, lii- 
 wife, and a third party, the liiisliaiid and wife take one moiet\ and tlie tliiiil 
 party the other moiety : A'r ./»/)/;, "lil 1^. T. \. S. IL'H. 
 
 Where a w ife is sued on a contract made liefoi-i' marria),'e tlii'fe is no iihiI t" 
 shew the possession of .separate estate at tile time of entering,' into till' ('(illtnicl 
 or at the time of iudK'nient ; Ihncw v. l''/itrJui; 21 </. I!. I). II ; iiinri' full) 
 reported, ;V.( ]j, T. .\. S. IH(I. (^iiorr, whether jiidynient in such case will l» 
 restricted to property not Hiihject to any restr.iint on anticipation as in Srnii \. 
 Aturliii, infill : see /hiinii v. h'/ilr/nr, "I'.l Ij. T. .\. S. 1S|, /ii r Lord ( 'iileriilKr : 
 and .ixfijiil V. /Iml, L'•J^^ 15. I). :.-IH, decided under the KiiRlisli M. W. Aituf 
 1H7<». 
 
 In the case of a contract entered into after 1st duly, 1HH1, Imtli sfpaniti 
 property at the date of the contract, and all separate property tlien'ufli'r 
 at:<niired. will lie lialile tii satisfy aiiv judj^'liient recovered : see sec. ;<, (-lief tln' 
 .Vet. 
 
 '{"his was not so liefore the .\cl. In Mnj^liind the form of order iiKMiiixt n 
 in.'irried woman w.'is for an iiupiiry as to the separate estate wliieli she 1i:m1 at 
 the time of the contract, and still has, with a declaration that the chiini in 
 ipiestion mav he reiMpVereil out of it: .see I'iuiiilw lliiii\ I., li. ."i Cliv. ■-'71. 
 .»/' V""'" V. 7V, '»,',•, :!((\V.|{. MO; 'M)\\. |{. IL'H; Ihliis y. l'„lli,iiliii.Vi\..'\'.'^'> 
 
 7!»7 ; Itiilii 11-1' III \. /'iibiiiui, .")(i h. .1. Chv. ."il.'7 : (nil/milu r \. .\iiiii"l, >^ I'- "' '' 
 ;«{; /hinviif y. l{ii>.rt/s,Sii. |5. j). 177; A///,/ v. Linn-, '>:\ i'U. ll 71'-|, aii'i 
 a receiver of it nii^rlit lie appointed liy the same order : l{r I'lim \. H"""'. 
 lil Oh. I), lo.'i. A cli.'iri,'!' liy a married woman upon her separiite estatr Wii- 
 lield slltticiellt e\ idelice of .sep:iratO estate to entitle plaintiff to all illi|"l''.^' ■ 
 l.iiiiiliiii hisi-miil A/liiimi f'l. V. h'iri, 1 Call, it Kl. a. In ( )nt,irio iiinli'i' tl|' 
 .Vet of 1K72 the ind(4iiieiit was similar: l.mrsnii y, l.iiiillnii-, ;i()iil. Ap|i. i'h ''-• 
 Wiilliur V. Ilnliliiisnii, .'tOnt. .'iltH. 
 
 Underpro.^- Tl"' tonn of jiidirinent, under the present Act, against a niariied wnnan''" 
 ent Act. Hctticfl in .S<'"// v. .Umir;/, 20 l^. 15. I). i;{2 is as follows : 
 
 " It is adjudKcd that (he pl.'iintiM' recover f and costs to lie taxed !«iini>' 
 the defendant, such sum and costs to lie payalileout of the separate |iroli«'rt.v n- 
 
 Kciriii of 
 
 jUdKIIKMit 
 
 uniier Act 
 of JN7'2. 
 

 PAUTIKS — MAUUIKI) WOMEN. 
 
 83!) 
 
 ticrciiiiifti'i' iiiciitioiu'd liiid not (itliiTwiKf ; aixl it \h (ii'(1<'rt<il tlmt I'xi'cutinii Rule 314. 
 Iit'irin III' liiiiili'il ti> tlii^ Ni'|iiu'iiti' |>i'ii|ii rt,\' of tlm suid <l<'fi'ii(|iiiit imt Miltjtct to 
 iHi.V n-ilriiiiit ii>faiii«t uiilici|nitioii, iiiiIcsm hy rciiMim of x. l!l (s. .'(> "/ Dnf. .\il) 
 i.f 'I'll' Miiiii'il W'Kiitiit'- I'li'iniifi .1(7, Miifli |ir<i|ii'rt.v hIiiiII lie liiililf to 
 cM'ciitioii iKiiwitliNtiuiiliiii^ Miicli rt'Mlriclioii."' 
 
 Sit jilio i,iii.ii,i' liiiiil: V. /liif//Til, to I". I{. (il'.t; Til, III, nil \. Fiiiiiiiin, 
 V, *i. I!. |). -Ml; h'iiiii'Hi- V. /.Vk- , |0 I'. It, IC:) ; Cmiiiaii \. Kiilliii/iuil, 
 li>. lili). 
 
 Tlii-- i" ii'it 11 |ii'i*iiiiiil liiit It ■' |irn|iiiiiiirv" jikIjjiuciiI : /nr Unwcii Ii..l. in 
 Snll \. M''ii'il, LNHjI, I'. I ). at |i. IL'S. 'I'hr inaiii'il woiumii i-i Imt liaMi' ; il is 
 ■lilv 111 r ■^i|).li;Ur |ilu|)irt\ wllidl i-* lllinlr lilllilr. 
 
 A writ ol si'i|iir<tnitiiiii !i:|iiiii-;t llii- "I'Htiiti- aipl I'lVi'i'l-- " wu^ luiil to hi' in 
 |ir(i|ii'r (■rill, Imt woulil only iipi'i'ittM on si'|i!iiiiti' |prn|>i'il> . imt sulijirt to 
 ,iiiy n.-liaint on iintiii|iiition : //'/'/' v. lli/ili; oil \,. T. .\. S. ril".! ; .Wi \\ . U. 7"H, 
 
 Till' |Mii|iriiy lialili' nmy In- i'imwIu'iI iiM.'Xirnlion in tlic iisiial \v;iy : //(/)/>>• I'' ''•'''iitiiiii. 
 \ H'l «/"!•. /, .")Ont. PJl-2; Lmrsnn v. /.niillinr, mi/jiii : iniii src /'»',/•%• v, Mi/lri'n, 
 \\. S. ISMI.fH! /'"('. V. Wxlln; -.'4 Cli. I). 4(1"). 
 
 irriid uuman frnfitort loniniittiil liv Artlmmof 
 ' tori. 
 
 »"• I _■ ' ■ „ ..^.. . , . - 
 
 jiiiiitlv.or till' « ifr niav lii'sucii aloiii', for luilscoinniittril liv lii'i'iifti'i' niaitiaj,'!' : 
 .'vr'*'( V. K'lltiiil'i'r;/,' 17 i^ P.. I >. 177; hc.' Sn/f v. Mi .fri/, •-'<H^. 15. I), at \>. 
 I'.Ti; Itnliiii \. Niii/liis, ;!| ( 'li. I >. ;{!MI ; Imt as to tin' l.iu inOnt. kit Aiiiiry. 
 
 I'lllJfiS, Sll/ifil, 
 
 111 Hctions liy :i inari'it'il woman for a tort Mulfi'i'i'il li.v lii'f, iiiKMinnfctrd with 
 lii'fst'|iaiati' I'slati', Iht liii-^band was, I'vi n afli r tlir .Vc! of IS7L', ri'iiniicd to Im' 
 ;i party plaint ilf : sir .1 1/;- /• v. /i'i'/''/>, 111 < '. I'. l!l!l ; Imt under tlii' pruMiiit Act 
 It wiiiilij iiiii tliat till' wifi'niav sni' alolii' : Wili/tm \. Wiiislmr^ \'M}. M. |). 
 7S4; Sjjii,;, V. linn, licfiiH' lioyii, ('., l' Ort. IHMll. 
 
 A iiiarrifd womiiii in solr oc'(Mi|intion of ti lioiiNe lioii^'lit liy lirr out of her own 
 '■i»'iiiii(,'sinav sill' aloiii', without iii'r hushand, in an ai.'tion for ticspaHs : H'i'/i/i>n 
 V. Ih- ll,tll„\ 14 t^». 15. I). ;t;i!l. 
 
 S(i' (.'iiiirallv on the pii'Mnt law in Ontario, 15 ( '. \,. 'I', lio; and in Knghmd 
 ^7 !,. T. .loiun. 41!i. 
 
 It s not I'a.sy (cisim- what cases are not |iri>viili'il for liy '/'/(/■ Mnriifil irnt:.")»'» Next 
 I'yiiliiili/ All, ami in which, therefore, under clause (i()of tiie present yfi(/c, a mar- f''ti"'l- 
 lii'il wiiinaii niiiy sue liy next friend. 'I'he Act renders a married women capaMe 
 'if Miili^; and lialili- to lie sued "in all respects as if she «irea,/( /ic ve/c.'' The .Act 
 of 1H>S4 had liifoie these words, the words " either in contract or in tort or other 
 "ISC ' 111 till' Idvisiiin of the Unlr^, these wurds lia\e heeii omitted, as (.fivin^' 
 nil iiililiti'iii;i| fiiice til the laiiKuaj,'c, and as liein^r iiuippnipriate under the 
 prow'iit system, which dues nut leeuj^'iii/.i' difrerent forms uf action: S/iitln v. 
 
 Hull', .Slljiill. 
 
 It is also lift indiiillit whether in oases where a next friend may lie necessary 
 till' piactiie formerly exist ill),' in < 'liancer.x' applies, such as fur instance the 
 riili' tliai the next friend must lie a solvent person : .see Itv Tlnniijisnu, Stvi-ruf 
 V. 'I'lnmi/isiw, W Ch. I). ;5I7. 
 
 I 111! fiilliiw in^f siiinmaiy of the )iriiu;ipal decisions under the former pr.acticc 
 limy liowevcr lie useful : 
 
 Ilii' (lefiinliint may raise the ipiestioiiof want ul' next friend liv motion to ()li.iection 
 -i:iy pl•lK•.•ellin^fs tiU'a next friend is appoiiiled : Mi flinHun \. Mi'dilir \ Cliv. f'"' "ant of 
 ni.LTiti: /•,„„„ V. S„l„/,7 P. |{. 44 : .\li.,ii/.,il v. <>,,/„■ „l,rlwir, 47 L.T. N. .S.7(I2 ; ta '"■xtlrieml. 
 lyl., <^ 15. :i(l!t; and formerly liy demurrer : .liHsn/, v. McLnni, 15 Cr. 4H0 . ""^ ii^cn. 
 IV'idliiiiii V. Mr/uiiliii/, 'A ("hv. ('h. li") ; Imt a demurrer would not now lie a 
 luiiptT course : see Yiiuiij v. /;i)/'i';7.si./;, 2 Ont 434 and notes to 7,'///, HKl. 
 
 I 
 
, »•'■' 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 Y 
 
 /. 
 
 i/ fj^ 
 
 lie M^ 
 
 
 A 
 
 
 
 1.0 
 
 I.I 
 
 If ii£ IIIIM 
 " 1^ mil 2.2 
 
 Hi Uk 
 
 1*^ 1^ 
 
 1.8 
 
 IL25 III 1.4 1 1.6 
 
 V 
 
 vQ 
 
 % J> ') 
 
 
 .■* 
 
 Photographic 
 
 Sciences 
 
 Corporation 
 
 
 23 WEST MAIN STRKT 
 
 WEBSTER, N.Y. 14580 
 
 (716)872-4503 
 
 
 ^. .. -.-.^^iviU."^iiV>iiifc-i -• 
 
340 
 
 COMiMENCEMENT OF ACTIONS. 
 
 BnleSlS. 
 
 A qufsticii whether a next friend was necessary was not allowed to be taken 
 upon a motion to limit the time for the appointment of a new next friend. The 
 original order was reipiired to be first rescini'.ed : Olmstmd v. Rut licr ford, 1 
 P. R. 140, and see l<hrl(<-ii v. (lon.nj, 8 P. K. 3(» ; Webster v. Lei/s, 10 P.'H. 86; 
 5 Ont. rm ; and Re TkoJHpsim, Sterenny. Thompson, 38 Ch. D. 317. 
 
 The objection was one tiiat formerly might be waivecl by conduct, as it 
 ■(tandson the same footing as the right to security for costs : Mallnry v. Mallory, 
 " T'. R. 44(1 ; but see now Martaiin v. Mhiih, 14 Ch. 1). 41'J, where it was held 
 that since the Judicature Acts th; Court has a judicial discretion to direct 
 security for costs to Im- given at any time, and that the old rule as to waiver by 
 step tiken is abrogated : see also note to Rule 124.5. 
 
 f 'le icxt f"iend is not appointed in a reasonable time, a motion maybe 
 
 ' "' ■ limit the time therefor, or, in default, that the action be dismissed: 
 
 r.-rs'iu V. McCiihe, siiprn. Tile time limited is the sameasuiion an a|i])lica- 
 
 ';ioj» vo limit tlietime for furnishing security for costs, as to which : set? <lriml\. 
 
 mr 'Hester, (i P. H. 5(). 
 
 A defendant cannot act as next friend of a married woman plaintiff : 
 I'nyne v. Ijitlle, 13 lieav. 114: lieuHelt v. Spru'/ite, 4 V. L. J. '.') ; see 
 Leiins V. XiMs, S Ch. I). .'iOl ; excejit jierhaps a merely formal defendant: 
 Tiif/loe V. Tui/liir, KJ L. .1. N. C. (!(>. The next friend must be a person of sub- 
 stance, as he is lia))le for the costs : Hind v. Whitmore, 2 K. & A. 4.58 ; Ranaw 
 Lawless, 1 Chy. Cli. 333 ; \'(ni WuiMe v. riutpUn, 2 Chy. Ch. it8; Re Thnupmn, 
 Stevens v. Thinnpsan, ,38 Gh. 1). 317. If not .solvent an order may be 
 made, on motion of defendants, to stay pi-oceedings till a new next friend be 
 ajiixiinted or security fur costs given : Sturel v. C'lles, 3 Chy. Ch. 421. Where 
 such an order iiad iHien made and, not being complied with, the action was 
 dismissed with costs, a second action by another next friend was stayed till 
 the costs of the first were |>aid : lie I'oi/ne, Riimlle v. Pa/ine, 23 Ch. ]). 288. 
 
 A next friend of a married woman plaintiff must Ik; autliorized to iictas.such, 
 otherwise the action may be dismissed on the a[)plication of the defendant. 
 Where a next friend's authority was disputed by defendant, and not deposed toby 
 the next friend, the action was dismissed with costs, payable by the next friend : 
 Se/ijiilt V. Sehjnll, 1!) Ch. 1). 04 : see also C'ot-/' v. I'n'/er, 4 Peav. Kl. A writ 
 issued by a next friend without eniploying a .solicitor was .-Jet aside with all the 
 proceedings : Sw<uiii v. Stvrnni, 43 Ij. 'F. X. S. .530. 
 
 The next friend may be changed by the married woman on notice to the 
 defendant: Unstman v. hlatt iii an, '1 Q\\\. i'\\. 183; llarrey v. /i'"'//»>T, 3 Chy. 
 Ch. 11. 
 
 Where par- 
 ties are 
 numerous. 
 
 ■ '^^^^^H 
 
 ii 
 
 !S1*>. Where there are numerous parties having the 
 same interest in one action, one or more of such parties 
 may sue or be sued, or may be authorized by the Court 
 to defend, in such action, on behalf of, or for the benefit of, 
 all imrties so interested. J. A. Ilule 98. 
 
 This is tiie .sam.' as l-jig. R. 187.5, (). 10, r. 9, (188.'$, K. 131), and corre.HiHiiidH 
 with what had long been tiie practice of the Court of Ciiaiicerv : sec Dan. Ch. 
 J'r. otii ed. 207, (/ . , y., 1088 ; TIkhiusiiii v. Vieti„-ia Miitind ('oiii/Kiiii/, 2!) (jr. X. 
 
 A ])laintiif suing luider this Rule must indorse his writ accordingly ; see 
 Rule 224, and Hi/nes v. riKher, 4 Ont. 78. 
 
 In I)e Hurt v. Stereusoii, 1 C^. J}. 1). 313, it was held that one part-owner of 
 a ship might sue under this /{ule on btdialf of himself and his co-owners for 
 freight. So al.so one underwriter on Ixdialf of all : Leatldei/ v. McAndrfV, 
 W. N. 187.5, 25!) ; 1 fJharl. Ch. Ca .58 ; one of a number of co-owners of ft 
 patent: Sheehan v. (.'. /v. Ilii., 10 Ch. 1). .5!); or liondholders : rru-ser v. 
 ('impe,,nall .t fii., 21 Ch. I J. 718 ; or iiolicy holders in an Insurance Company: 
 Thtimson v. Vieturiu Mulunl Compuu//, 2!Mir. iifj ; or shareholders of a Com- 
 pany: International Wrecking Company v. Mur]'!''/, 12 P. K. 423. See also 
 llerynuni v. McMillan, W. N. 1881, 39. 
 
PARTIES — REPRESENTATION OF A CLASS. 
 
 341 
 
 Tn Aiiili-cvs V. Sidmon, W. X. 1H88, 102, (sw also 
 autiiorizt'd to (U^feiul on Iwliiilf of all the nii-nihor 
 club. 
 
 ill. 17(>,) dcfiaulant.s 
 < of the coinmittt'e 
 
 were Rule 316. 
 of a 
 
 Tiiis I{iil<- wa.s actwl on in a case where certain charitable b( (juests in a will, 
 held invalid would {jfo to the next of kin, and four of the next of kin besides 
 le widow of the testator, and the .-\tty.-(!en. as reiires(>nting the charities had 
 
 if 
 
 the \viu»'*» wi mv wv .■.-.«.,..»,.-.... - ..,.',.. .,... , p, .. 
 
 Iwcn served, and it ai)i)eared that there were a larffe nundier of next of km, 
 many of whoni were unknown, and service upon others wovdd be difficult and 
 exncnsive. -An order was made declaring that the next of kin were sufficiently 
 represented by those beff>re the Covirt : (lillii'K v. McCuiidchlf. 18 C L. J. 
 17!l. 
 
 Where a person suing on behalf of himself and others is disentitled to sue on 
 lii- own behalf, he cannot do so on behalf of thi' others interested : Dillon v. 
 ll,ila:j/i, 13 Ont. Api). ns. 
 
 In suits by one on behalf of all others of a particular class the f)ther mem- 
 bers of tlie class, if fairly repre.sented, are bound by the judgment : Commia- 
 siiiiiern if Si- liters V. (,'el'/i'/l,i/, 3 Ch. 1). tllO ; J.ikI/iIi'i/ v. MiAuitivw, W. N. 
 187(i, 38; 2Charl. Ch. Ca. 24 ; Hurt v. Hritlxli Xntiim I. iff A-ssiiranre Asmnia- 
 tion, 4 DeC & J. 158, 174 ; Jiitrbr v. Welti rs, 8 H.av. !i7. Where (me of the 
 class objects to the proceedings, he may, on ajiplying, be made a party 
 defendant; Wilson v. C/njrdi, 8 Ch. I). .5r)'2 ; Froscr y. Conprr, 21 Ch. I). 718. 
 That is the proper course if he is really not rejiresented by the plaintiff. He 
 cannot otherwise appeal fnmi an order obtained l)y the plaintiff: H'cfeo;; v. 
 Cinr, 17 Ch. !). lit ; unless perhaps in a ca.se where a jierson has already been 
 made a defendant in the same interest as the ajjplicant, and appointed 
 under this Itidc to represent that interest: see Fnigrr v. <'oo/icr, cti'., 21 
 Cli. 1). 718. 
 
 \ person fairly represented will not be allowed to attend the proceedingB 
 unless he may be joined as a party : Coni/lii'dri' v. /.riris, 48 L. T. N. S. .'")2(>. 
 
 SIC In any case in which the right of an heir-at-law or i'eison«ap 
 of the next of kin, or of a class depends upon the construe- {'^preson "■ 
 tion which the Court may put upon an instrument, and it '''*'^^- 
 is not known or is difticult to ascertain who is or are such 
 heir-at-law or next of kin or class, and the Court considers 
 that in order to save expense or for some other reason it 
 will be convenient to have the question or questions of 
 construction determined before such heir-at-law, next of 
 kin or class, shall have been ascertained by means of 
 inquiry or otherwise, the Court may appoint some one or 
 more person or persons to represent such heir-at-law, next 
 of kin or class, and the judgment of the Court in the pres- 
 ence of such person or persons shall be binding upon the 
 party or parties or class so represented. J.^ A. Rule 99 
 
 ^anie as the Bug. R. June, 187lCl{. 7 (1883, R. IM), 
 
 y< 
 
 /'Ztc. 
 
 WluM'e upon the construction of a will, (piestions had arisen as to what cla«.>fes 
 lit representatives of the testator were entitled, and gri'at difficulty was fore- 
 men in attempting to find the heir, who in tlie result might be held not entitled, 
 an order was made under this Itnli' appointing jiersons to represent the various 
 cksBes of persons, some or o.\e of which migiit be held to be entitled l)eforetho 
 questions of construction came on to be decided : A'c l'< iijiitt's HMiitr, Clie.^trrv. 
 l'hiUlii.t, 4 Ch. I). 23(1. 
 
 Persons interested in an estate, the sidyeet of an ailministration action to 
 'vliich tiiey have not been made parties and whose rights or interests may bo 
 
 / 
 
 / **i o\t let 
 
 / 3 / :^ 
 
S42 
 
 COMMENCEMENT OF ACTIONS. 
 
 
 Rule 317. aflfeotwl by an order (liri'ctint,' accimiitn and infuiiries, arc not IxMind liy iirdcuwl. 
 iiigs under tliat order, at any rate wliere tliey ought to l)e served, miles.-, they 
 ure served with notice of tlie order or an order, nas lieen made aii|ioiiitiii(( a 
 memljer of tlieir class to represent them : Mini v. NviHoa, 34 ('h. I), 'M",, 
 
 \x\ Re Rei», Rfc.t v. (imriir. 4!> I,. J., Chy. r)(»S, ])ersons who iiad not liccii 
 [larties, liiit had been seived with notice of decree, were directed to lie servwl 
 with noti(M' of hearing' iin further consideration, where an order was asked fur 
 against them personally. 
 
 In AV Ciio/ir,; ('Dii/iif v. \'(xi'ii. L'dCh. I), (ill. (1 ..■ of four Irustecs iMiili'i' a 
 will was a lieneticiaiy and ■^on of tlie testator and liore the same name, l|i., 
 |lersonatill^;■ the testator, iiiorti,''a^'ed the trust estate, and empliiye<l the iiiiii't- 
 gaife money for Ills own use. .Vfter his deatli the remaining,' ti-ustres hriiii<r|it 
 an action a,L;ainst the morti.''agees and lieneticiarii s to ha\e the mcirtj,'!!;,'!- 
 declared void. It was hcM that the plaintiffs rrpleselitcd the lienetieiai'iesuil'i 
 that the latter were impivjperly made parties, and an order direct iim- tlie iiidi-r,- 
 gagees to jiay their costs \\as thei-elorc reversed on apjieal. 
 
 In III' Pi'iii'ilf, 17 <'h. I ). S:.'!, an actimi liy h'^atees for coii-tiuctioii of awill, 
 the defendants the exi'ciifors, two of the next of kin, ucie at t lie hearing' aiitliDr- 
 ized to repr"scnt the ahsetit next of kin. 
 
 In ''(»)/,■ V. Fdirii, -~ W . it. L'l"_'. representation of an iina>ee)t;iiiiei| i;];i-.h. 
 vi/,., the next of kin of the plaintiff, was dispensed with. 
 
 .See also L<irr!iii \ . Smilli, 1.^ f'h. I). (iiVi ; H<ihlitt \. Hi id. W. \. l,S7i;. '.G; imi 
 limli \. Hiintiiii.^ \\ . \. 1S7S, 17!l; Mann v. SIkIJh, M L. T. N, S. si."). 
 
 m'(iv'Mie''in •*•''• Any two or more persons claiming or beiny liable 
 linunamo. as cQ-partners may sue or be sued in the name of the 
 respective firms, if any, lof which sucli persons were co- 
 partners at the time of the accruing of the cause of action : 
 and any party to an action may in such case apply to the 
 Court or a Judge; for a statement of the names of the per- 
 sons who i were, at the time of the accruing of the cause 
 of action,] co-partners in any such firm, to be furnished in 
 such manner, and verified on oath or otherwist\ as the 
 Judge may direct. : Provided that, in the case of a co- 
 partnership which has been dissolved, to the knowledge of 
 the plaintiff, before the commencement of the action, tlie 
 writ of summons shall be served upon every person sought 
 to be made liable.: J. A. Rules 100, 501 and Mng. li. 
 1888, 13(5. 
 
 The power to partners to sue and lie sued in the name of their firm u.is fii''t 
 given hy the ,Iiid. Act 1SS1, y.'c/c 10(1, now ;U7. In such eases, if jiartui-rs niv 
 suing in the name of the lirm, they nntst, on the demand of the defeii'Liiit, dis- 
 close the names of the partners ; and whether suing or being sued, they may Im 
 onlered by a .ludge, on the applicati<in of any pai'ty to the action, to niakisiicii 
 disclosure : Ruhfi'l'A and 'Ml. If a tirm is sued as such, service iiiiiy I le eti'cctcil 
 either upon any one or more of the jiartners, or at the principal pkiec- "f hii'*i; 
 ness of the partnership upon any ]ierson having the c<introl or m.-iiKr-'eiiieiit "t 
 the business. The partners are to appear individually in their own ii.iim's, lint 
 all .sid)se(|uent iiroeeedings go on in the name of the firm : Itnl'' "JU'S. 
 
 .\fter judgment against the tirin, execution may i.ssue againstany pinpeityiii 
 the firm, or against any iier.son admitted orad.jtulged to be a partner, m atfanM 
 any person «crv(d as a partner with the writ who has failed to ap[»'ar. if the 
 
PARTIES — PARTNERS. 
 
 348 
 
 imigiiifiit creditor olaiins to hv entitled to innw execution iij^rainst any o!ie else Rule 317. 
 ;is a iiai'tner in the timi, he may ajiply for an order to that effect, and an i.ssiKi 
 iuay lie directed to try the (luestion : Ritli' 87(i. 
 
 This Hide is th(> same as the Kng. Rule 1883, l.Sti, excei)t that for " to tlie 
 C'lmrt or a .liidge "' th(^ Enfi^. |{. has " to a .Fudge.'" This alteration to suit our 
 Tiractice lias apiiarcntly hy reason of a slip not heen carri<'d into tlie sut)se(nient 
 piU't (if tile /'('/'■ uiiere the fiirnishiuf,' of the statement is to be as the .ludge 
 may direet. 
 
 The (iiiKiiial /.'"A' lOdanil Kii;,'. Ii. 1<S7r>, <). Illr. 10, did not contain tiie other 
 wimls ill liracliets. The '(Uest ion therefore arose whether tiie /'ii/i applied to 
 iiersdiisiiiily ulin wi're ai- tiie tinieof tile commencenii'nt of tlie action, partners 
 in an exist i Mi;' linn, or also to persons wiio v\('re partni'i'sal thf time tiic del it was 
 ciiiitracted. but who had ceased to lie so at i lie time of lirini^iii},'' the action, eitlier 
 liy tiie tinii lieiiif,'- dissolved, oi'new paitnei's lia\iiiy- come in and former partners 
 retired, hi''/'. />'/"''/!, 1-! Cli, 1 ). o.'i;!. .lames. T^.l., pointeil out the ditlieulty, 
 and lie and llrett, fi..!., expressed doiilil wlietliei' in a, case whei'e A. 15. i\: ( '. 
 were partners at thctien' of hringiii^'' the action iuul K. V. Hi <!. at the time of 
 the centract, the same firm name licinj,' used liy liotli, the tirni could he sued. 
 Inix/'. Voi'iiii, 1!M'h. I). I'-'t. Lord .Sellidrue, without alisolutely expnssin;,' an 
 ii|)iliiiili. seeini'd inclined to a;,''ree with the views of I'.rett. L.. I., who thought 
 tliat tile /!"/'' autliori/.ed the suin^,"', in the name of tlieir lirm, the miinliers of 
 a iiailiier>liip dissolved liefore the issue of the writ, in respcc't of a cause of 
 actiiin wliieli arose diirine- the existence nf the tirin, Cotton, L..)., thouf,dit thu 
 A'"/'' applied only to ;i partnership existing!' at the time when the writ issued. 
 Tlie point was not in that case decided, ,is the majority' of the Court held that 
 till' jiul'^iiient was not at any rate liindiu;,' on a nietiiliei- of the dissolved firm 
 wluiliail init been served with the writ as a partner, nor had admitted on tho 
 |ik'ailiiij,'s that he was, nor had been adjiidg'ed to be. a partnci' : see /.'"/« .S7t>. 
 Siilisei, ,ctitl.\', in /)iiri.i v. .)/"/v/.s-, 1<I M. I!. I). 4;<ti, the ((uestion aj,'ain arose, 
 anil it was expressly held by W'atkin Williams,,!,, that under the orij,'inal 
 Hull' tlie ri^ht to sue partners in the name of their tirm was not limited to the 
 case iif partners carryin;,'' on business at the date of the writ ; and also that it 
 is aiinestion of fact whether the plaintiff intended to sue uudei' the Krm name 
 liiniier partners as well as those who were members of the tirm at the com- 
 iiipneonic'it of the action. 
 
 Tile view of Hrett, L..I., was followed in Ontario in Wilson v. McKitii, 20 
 V. L. .1. ;{(iS ; S. C, WiUim v. Hoihui; McKiui A- ('„., 4 ('. L. T. 548 ; ],(» P. K. 
 Xm; and is now expressed in the abtjve Con. Ridi' that the point may be clear. 
 
 Where an individual has entercfl an ajiiiearance in an action against a finn 
 there must be a nidation to I'ender him li.ible foi- a debt contracted before he 
 was a iiieiiiber, the fact that the individual had undertaken to indemnify the 
 tinn is not eiiouu'li ; Cii'/i/i.t v. Tn/i/iiii, 1 ("ab. I'll. 1.'}. See .Sr«// v. Jardinv, 
 7 .\ii|i. ('as. 34:). 
 
 A jndjfiiient obtained against some p.artners is a bar to an action for the debt 
 against others not sued : AVcAt// v. Uuuiillon, 4 App. Cas. .')04. .See Hi Hudii- 
 !nii,U,c/.ritv. /tti„is,/,ilr, 'M Ch. I). 177; 'M \V. It. IL'7; .Vi L. .). Chv. '-Ml ; 
 ('(uiMijf. \-.(.'l,iii,m<iii, 1!H^>. n. I). UL'lt. 
 
 In Iwott V. lirnii, 3!t L. T. X. S. li!l, it was held that a cost book mining 
 i-oinpany, though uninccrporated, niKflit be sued by its partnership name. 
 
 .■Vs to tlie effect of partners sex eriiig iii their defen(;e and not I'aising the 
 >aini' (lefcnces, see ('id/i/iir \, Siin'/li. ')'Mj. .1, ('liw Sill ; and Smith v. fropiiri; 
 lOApp. ('i,s. 2I!(. 
 
 A plaintirt' in a class suit cannot under this /!ii/r be compelled to disclose the 
 iiiiines and addresses of the persons on \\hose behalf lie sues: LinthUv v. 
 McAhitinv, W. X, 1875, 2.V,). 
 
 .•V foini of notice of niotion for a statement of the partners under this liidf is 
 ;'ivrn hi the .Ajip. Xo. H, and a form of order in Xo. 131. 
 
 The order for the statement cannot be enforced by attachment under /Ju/e 
 ■''2:i: I'ih \. A'"»r, L'l \V. H. Wl-1. 
 
 
 ^ 
 ^ 
 
 ^ 
 
 <r. 
 
 
 % 
 
V : 
 
 344 
 
 COMMENCEMENT OF ACTIONS. 
 
 Rules 
 318, 319. 
 Porsoii 
 tradiii}; 
 iiiiiler linn 
 
 parUes in 
 terestiMl 
 are not 
 before it. 
 
 IIIH, Any person carrying on business in the name of a 
 firm, apparently consisting of more than one person, may 
 be sued in the name of such firm. J. A. llule 101. 
 
 Same as Eiij,'. H., .luiie, 1870, H. H ; (1883, 137.) 
 
 .-\l)pparaiic(! must be entered hv kiicIi a i)erson in liis individual name ; mis 
 /lule 288, and Tui/hn- v. Col/irr, 3i) W. K. 701. 
 
 Court uiny ;ji9. Whcrc questiouB arise between parties, who aie 
 though some only of those interested in the property respecting 
 sonieof thc^^,jjjgl^ tlic qucstiou arises ; or where the property in ques- 
 tion is comprised with other property in the same settle- 
 ment, will, or other instrument, or is the property of an 
 intestate, the Court may adjudicate on the questions arising 
 between such parties without making the other parties 
 interested in the property respectii' ■; which the question 
 arises, or interested under the st .ement, will, or other 
 instrument, parties to the action ; and without requiring 
 the whole trusts and purposes of the settlement, will, or 
 instrument, or the whole estate of the intestate, to be 
 executed or administered under the direction of the Court, 
 and without taking the accounts of the trustees or other 
 accounting parties, or ascertaining the particulars or 
 amount of the property touching which the question or 
 questions have arisen, or of the whole estate or assets ; but 
 where the Court is of opinion that the api)lication is fraud- 
 ulent, or collusive, or that for some other reason the 
 application ought not to be entertained, it may refuse to 
 make the order asked. Chy. 0. 57. 
 
 The Court mav under tiiis /'n/r exeente one or more (if several s|iecifie trusts 
 embraced in an instrument \vitlif)iit makin<,' all tlie persons iuteresled in the 
 other trusts embraced tiieroin parties: Punirll \. HiinixUiii, \\ Sni. i\: (J. o.'i7.' 
 But some of the parties intei-ested on both sides of the (piestion involved iiiii>t 
 be before the (Jourt: SiriiUi)ir v. Iliiitin, it Hare .Xjip. xlvii. 'I'lie Cinu't lias 
 refused to ])ermit a jilaintiff at the hearing' to strikeout tiie names of defeiiilaiits 
 whom he had improperly omitted to serve with a suhptena to hear jiKljjiiii'iit, 
 and proceed in their absence although such parties had merely a nominal inter- 
 est : Ldiilidm v. I'irii, 2 .iur. X. S. V2()l, and see Qiiinit: v. Siit<l:ii: li 1'. H. 
 228 ; l)ut where at tiie liearinfjf it was discovered tiiat an order /no cuiifixv 
 against certain defendants had been vacated by a subse(pient amendment, the 
 Coiu't jiroiKnmeed a decice saving- the rights of such defendants : U'liililli y. 
 Mrdintii, ^~1 V,Y. 2(i1. A decree for foreitlosure could not lie made nndef this 
 Jtiih' as against some oidy of the parties interested in theequity of redempiinn : 
 Caddick V. <'i)nk\ 32 lieav. 70. But where the parties interested in the equity 
 of redenii)tion are numerous, the Court may, under Iti'lr 3()(>, aw.ird judguient, 
 and direct that parties so interested lie made parties in the Master's Office, Init 
 such order can only be made, when one or more parties interested in tliee(iuity 
 of redemption, are already parties to tlie action. 
 
 The /{i(/r ajiplies to iipjilieations made inider 7"//' TrKnIti /i'i'/(V/ .Ic/. I'*'")". 
 and some out of several pai'ties entitled to the ecpiity of redemption "ere licld 
 entitled to apply under that Act for a reconveyance; L'r .'<ii(ir/ili ,!/'■•< Tvii^x.l 
 

 l'\KTIKS — UEl'RKSENTATION OF A CLASS. 
 
 345 
 
 W. H. -71. '11"' '''"" "'''*" iH'P''""'^ t" |'iii'ti<'« ti) .spfciiil Oii-ii's : .'imd/oir \. /iiiiiin, Rule 320. 
 !l Hart' App. xlvii ; J!'' Hi'dim, 2!) IUmv. 4<ll. 
 
 VVhcii tiicCDUi't prociM'ds under tliis Itiili- in the ahsi-nce of any piiitics intcr- 
 ( 'I'll, till' iilisi'Ut pai'tics lire luit liij\ni(l liy the proi'('('ilin>,'.s : Itioilii \. l{iiiiiiii'<, 
 
 iliW App. xwii. 
 
 ;{20. It shall not be competent to a det'emlant to take 
 an objection lor want of parties in any case to which the 
 sevfju sub-clauses next hereinafter set forth apply. 
 
 1.— A residuary legatee, or next of kin, may have a judg- 
 ment for the administration of the personal estate of a 
 deceased person without serving the remaining residuary 
 legatees or next of kin. 
 
 2.— A legatee interested in a legacy charged upon real 
 ■estate ; or a person interested in the proceeds of real estate 
 directed to be sold, may nave a judgment for the adminis- 
 tration of the estate of a deceased person, without serving 
 any other legatee or person interested iu the proceeds of 
 the estate. 
 
 3. — A residuary devisee, or heir, may have the like 
 ju.ljfment, without serving any co-residuary devisee, or 
 co-heir. 
 
 4. — One of several cestuis que trnstent, under a deed or 
 instrument, nuiy have a judgment for the execution of the 
 trusts of the deed or ''nstrument, without serving any other 
 of such ccstuiH que t>astent. 
 
 5.— In all cases of actions for the protection of property 
 pending litigation, and in all cases in the nature of waste, 
 one person may move on behalf of himself, and of all per- 
 sons having the same interest. 
 
 G. — An executor, administrator, or trustee, may obtain a 
 judgment against any one legatee, next of kin or cestui que 
 trimt, for the administration of the estate or the execu- 
 tion of the trusts. 
 
 7.— An assignee of a chose in action may institute an 
 action in respect thereof without making the assignor a 
 party thereto. Chy. 0. 58 : J. A, Rule 102. (See hup. 
 Art 15 \- IG Vict, c.' 8(), s. 42.) 
 
 Till' Kii.'lisli Ifiil,.. ISS.S, I!, ir),')-!!')!) iu'i' to tlic siunc cfffot as cliiusi's l-C. 
 
 111!' oliji'it I if tliis llii'i is to hiivc niincci'ssiiiy t'X|M'ns«', luul wlicrcuniiciM'ssMry 
 IMftii'- aiv iiKi'li' to til" ;i(:tloii. the Court will rt'fnst' to charge tlu' cstiitc with 
 
 (.'HHL'S 
 
 wliere one 
 of a class 
 may suo 
 without 
 joining 
 others. 
 
 Ki'siiluary 
 lcf,'ateo,etc. 
 
 JjOfiateo 
 whose 
 leKacy is 
 charged on 
 realty. 
 
 Uesiduary 
 devisee or 
 lieir. 
 
 One of sev- 
 eral (.'. (/. t. 
 
 In actions 
 for protec- 
 tion of pro- 
 perty. 
 
 Adminis- 
 tration 
 against one 
 
 .;. -/. t. 
 
 Assignee of 
 r/ii.'s'c in 
 net ion may 
 sue witli- 
 ont joming 
 assignor. 
 
wn 
 
 
 ■- 
 
 'r? 
 
 84(; 
 
 Rule 320. 
 
 I'orsoiiH 
 not niiulo 
 imrtioH, 
 miiHt 1)1! 
 siirvL'dwil 
 niil^^iiiiMit. 
 
 I'orsoiis 
 fvoiiiwlioiii 
 III! ii('(u)iint 
 is souKlit, 
 slioiilil l)i: 
 iiiiuU! imi- 
 tius. 
 
 Action liy 
 residuary 
 let^ateo. 
 
 Personal 
 rei)roscn- 
 tative a ne 
 cessary 
 party to 
 action for 
 adminis- 
 tration. 
 
 COMMENCEMENT OF ACTIONS. 
 
 t'xtni costs tlioreby occasioned : R<id;/e>:i v. Rmlijirs, 13 (ir. 457 ; HrailUij y. 
 Wilxnn, lb. ((45, and it would Heeni that the plaintiff may Ikj ordered to pay 
 H\;cli costs. 
 
 PersonH interested in an estate the subject of administration in'oocedings to 
 wliich they liay<^ not Ih'cii made parties, and whosti rights may Ix' affected, arc 
 not liounil l)y tlic proceedings inilcss they are served with notices of the (jrder: 
 se(^ Rail' "til ; or an order has i)een made apjiointing a member of tiieir clnss to 
 represent tiiiMn ; see Rnh: WUS ; Ma// y. .\'i'i"l(i,i, 34 Oil. I). .347. 
 
 Although in tlie several cases mentioned in this /ti'/r the a(!tioii may lie poiii- 
 nienoeil anil judgment <ihtained without making all persons interested p.nti.> 
 to the action, .\et the persons wiio but for this /In/i, would l)e necessary |la^til■^ 
 to the proceiMlings nnist under /In/'' 'Ml, lie sei'ved witli a (topy of tlic jiid^' 
 nient. indi'ssthe ( 'ourt, or Mastei', dispense with the servi(;c, and it is nut until 
 "iifti'r su(di service," that they are bound by the iiroceedings. Wlietlier pi-r- 
 
 ^iius upon whoni servii f the judgment i*'- dispensed with, are bound liv tin- 
 
 proceedings a^ if they hail bi'en actually ser\ed, is not stated in the lli'li. anil 
 it is possible that they wiiuld not be so bound : see hudihi v. l/i;/;iiii--, U lian- 
 A pp. xwii. 
 
 Xotwithstanding this /{i'l<; all persons from wiiom an ace lunt is siiii;;lit, 
 must be made parties in the first instance : /.nli/i y. Ltilrh, L. Ii. lUChv. -ii'd : 
 IIV^//v ,■ V. S/,;)i„Hl,n,, L. I{. 12, Kq. 152; J,'"//>/i v. I'. ('. Jii'l/'/hi:/ S.r;,l,i, ]\ 
 < Ir. 27o, 27S-!) ; l/aji/Kr v. //urn's-, n, 2S (ir. 22; and the judgment eiunint 1»- 
 Varied under /{n/i 322, at the instance of [lersons served with ihe juil.Ljnient sd 
 as to direct the taking of accounts for which no foundation is litid hi the 
 pleadings : /''nslc,- v. Fimlrr, Tj. It. 3 ( 'hy 330, at all events not without ^'i\ inu' the 
 party from whom an .•lecount is sought an op|iortunity to aililuce e\ ideiice tn 
 show that the account should not be ordered ; and persons served with tlr 
 judgment, have no greater right to call the original defendants to acemint, 
 than they would have if such persons had been originally made co-ilefeiiilauts 
 in the action ; thus in an jw.'tion by a remainderman for an account, it was liilil 
 that a tenant for life served with the judgment could not claim an accoiuitof 
 the income : Whihifi/ v. Sinil/i, L. H. 4 Cliy. i")13. 
 
 All ])ersons in the same interest with the )>laintiff, necessary to be iiiath' 
 parties, except iierhaps infants, should be made co-|)laintiffs ; where they aiv 
 made defendants in conseipience of their refusal to join as plaiutiti's, they will 
 be refused their costs : /jiii;/ v. Smilh, 25 (Jr. 24(>. 
 
 Srn-('l,.\rsK 1.-- Where the actioti isbronghtbyone of several residuary legatee.", 
 the plaintiff sufficiently re|)resents all the residuary legatees, and the iithersaie 
 not entitled as of course to apjiear in the Master's Office, by a separate snlii'i- 
 tor, and if they do, they may lie refused tlu'ir costs ; to entitle them to cnst^ 
 some sufficient reason siiould be stated in the Master's report, for their iH'iiij; 
 rei)resented by a 8ei)arate solicitor ; (t'ln'/n'iii v. (ii.r/nnn, 17 (ir. 38(i. 
 
 The legal personal representative is ordinarily a necessary party to an actum 
 for general administration, and it is necessary to allege that the person iianiefl 
 " as the legal personal representative has proved the will or obtained letters iif 
 adnnnistration as the case may be : pnnn/ v. W'litls. 2 I'll. 1411; /!'' M(wh"ll, 
 Fmr/r,- y. Marsliull, 1 (^hy. Ch. 2!l ; A'lV/,// v. ArihH, 11 (Jr. 5T!I ; Sinwiiss: 
 .\/illii((iii, 2 Sim. 241 ; /.mrr// \. /■'iillnii, \) .Sim. 104; /iniiiicrmdii \. H' lieilly, 
 14 (ir. t)4(> ; <-'rnirs v. /.'(in; lii.fur. 10(11 ; Cmi/.r v. (litliintK. 21 I'.eav. 4!I7 : /''"i"''- 
 ii(n,r V. Hr>'<ii)ni, 2 H. & M. 4!)1 ; <\ini v. /////.s, L. H. 15 Ivp 711; /h.^-d.-swUs, 
 />., II Ch. 1). 2!I4 ; A'-k'w// v. .)/i;/,/.s, L. |{. 17 Ivi. 12" ; hut see 
 /.'"/'■ 312. Hut iirobate, or administration, obtained by the alltw 
 personal representative lu-iiilrnti- lite before the trial of the action, will 
 be snfficieiit to bind tiie estate; Jititt'muii v. A/ari/iTi.'i ni, (5 Hare 4!Ni : 
 Tiirr V. Riiliiii.snii, ll) Out. 433; and this was held even though the 
 objection was taken l)y defendant in his iinswer ; /uliii/iiiri//i I. if'' .{■■"^uri'itfe 
 <V-. y. .l//<'/i, llMir. 5!t3; and see Shniip \: /lriii//<;/, 15 (ir. 30; Mr/)ni„iM y- 
 Mr/)f,ii,i/<l, 14 (ir. 1.33, where iirobate not obtained until after judgment. 
 .ludgment for the general administration of a deceased person's estate may mw 
 be granted against an executor ilr umi tort where the legal )iersonal reprcsenta- 
 
PARTIES — PERSONAL REPRESENTATIVE. 
 
 347 
 
 tivo is not a i)arty, llule 312 ; fomu-rly it wuh otlmrwiKe : Ruti-srll v. Murris, Rule 330. 
 L R. 17 V,(\. 'M) ; Oulrfim v. W'ychijf, I'. H. IW) ; li( Kirhiiatiii'L, SlerriiMnii v. 
 Kiii'lintrieh; 1(1 P. R. 4 ; but see iff Loreli, Amhlcr v. Liii(/.sai/, 3 Cli. IJ. ItW. 
 Jufluniit'iitf<'ra(lniiiii.stratioii, howewr, ciiniiot he gniutcd against (me i)f sovoral 
 fXfciitoi's who have proved, even thongll tlie absent executor lie out ,f the 
 jnrisiliutiim : /!'■ Frri'lutrii, /•'. v. Cnrm//, (! I'. K. IHS; Lclc/i v. /.I'lrli, L. K. 10 
 Chv. 4<>4. All thiMi.xecutors who have jiroved, and all who have acted, even 
 ti,(mtrii they have not proved, are iiecessai'v parties ; Mchirs v. liill, 4 I). .J. it 
 S. L'74 ; //i""/' V. liiihiiisiiii, 3 I). J. it S. 1*7 ; hifr/i v. I.idch, nn/ini ; but an exe- 
 cute irwiio lias renoiuiced, or who has neither proved nor acted, need not be made 
 a party; /■'./•.s7//A v. />/v'/r, 1 (Jr. L'23 ; Willis v. Wol/.n; V'ern. '.m(aJ2: 
 Sliii.inn V. SliiiKiiii, 2 (Jr. WH ; b\it where the plaintilf brouj^dit a suit for 
 iiiiiuiiiistration against one of tiiree ex(HMitors and trustees, alleging in the 
 liill that the others iiad never acteil, and the liill having been served by pulili- 
 I'litidU, on a hearing /ira i-<iii/i:-isii t\\i- (!onrt refused to make a decree in the 
 aliseiice of the other two executors and trustees as parties, or of |iroof of the 
 fiu;:t:< alleged, accounting foi- their not ln'iiig made |iarti"s : Ldiir v. VnKiiti, 17 
 (Jr. I'H*. 'I'lie renunciation of an executor under \{. S. (). e. oO, s. (!2, is 
 peri'iiiptory and cannot be recalled on the death of the acting executor : Alliii v. 
 I'lirl.f, 17 C. I'. lO.'i ; and after remniciation he cannot cxecuti' a power of sale 
 i;' It'll to him, 7'"' executor : Trinii'.i v. (•'ir-itin, '21) (Jr. lUli ; and see llr hilii- 
 fiiiiili',V.\ (Jr. 1I!I. .\s to till! acts wliicii will render an executor liabli', not- 
 
 
 his rciiuui-iation ot probata 
 
 Viiinuilhi V. Milr/,,//, t.S (Jr. 
 
 fully accounted to tiie 
 V. /'.I IIS, L'S (Jr. 471. 
 
 witiistiiiidiiijj 
 (Ej. 
 
 Tile representative of a deceased executor win 
 ini,' fNcciitor, need not l)e made a party ; ll'i'/.v/'/' 
 
 All executor proving tlw. will, after judgment lias been obtained, against 
 ;iiiiitlii'r iMciitor who had ja'cviously proved, might formerly have lieeu added 
 ;;sii|iaity hy a supplemental la'der : < i iilli i-ii' \ . \\'(il rmiil, 2l! W . It. 723 ; and it 
 wuiilii seem lie might under the present practice be brought liefore tlie Court 
 Milder an onler to continue iiroceediiigs, sen /.'/(/c.v (121, (122. .\ general decree 
 fill' aihiiiiiistration was granted in a creditor's suit against an administrator nil 
 //(i«i, it lii'iiig alleged in the bill that there was no personal estate, and the 
 (lartii's interested in thi' realty having allowed the Itill to be taken prticiiiiJ'i'Knii 
 apiinst tlieiii : />''/ v. Ihi/, 2 (Jr. 1411, but see remarks of Hpragge, C, in Oar- 
 n.irv. Mrlhmald, 20 (Jr. 130. 
 
 .\n action for protecting the estate until iH'oliate cannot be joined with an 
 iittioii for administration ; formerly a bill so framed was demurrable for want 
 "f pavties : Riiirliiiij-< v. l^niilifi-l, 1 .1. it 11. 4r),S ; Onriiii/ltin v. Wnril, 34 Beav. 
 l""i; and see Tiiii/i'sl v. ('(iiimi/s, 35 ]}eav. 201 ; and ''"/c v. <<liivn; 1(1 (Jr. 3'.I2 ; 
 lint now any objection to an action on the gri/und of the ab.seiice of necessary 
 iwitics, can not uiulcr T/ir Jmliiiilurr Art lie taken by demurrer, but the (pies- 
 'iiiii must be raised on motion to add the necessary parties : Wi'idrrniKiui v. 
 N«iV/,- (l>'iin-<ilr h'r.lertnril,-, 4.5 L. T. X. S. ,514; IS C. L. .1. bS ; 1!» Cli. I). 
 i\\\\ Yinniiis. Hulirrtmii, 2 Out. 4.3! t. 
 
 Tile removal of the assets init of the jurisdiction will be 
 tiimeven tlimigii the deceased's domicile was out of the 
 '-'■»//, 1« (Jr. 4111. 
 
 % 
 
 
 .\ction for 
 protection 
 (if estate 
 until pro- 
 bate. 
 
 restrained by injunc- 
 I'rovince : Sliiifcr v. 
 
 Where the a(>t ion relates to the realty as well as the iiersonalty, unless the 
 cxceuter is also trustee, or devisee, of the realtv, or of some part of it : 
 •^'''•i(V(rt V. Iliniti-i; H (Jr. 1.32, or entitled thereto' under Tin' hcnilnlliiii «/' 
 KMuka Alt, (H. S. (). c. lOH) s. 4. it is necessary to join the heir, or if the 
 lands he devised, then the devisee, or one or more of the devisees: Calvert, 
 I'll, 153 ; Itiilf'.y^i) i)iisl. Hut execution against the lands of a <Ieceased per- 
 •^oiiniight, prior to Tlw hrfiiliitiun i,f Hslittis Ad, be issued upon a judgment 
 ;«ainst his iiersonal reiirescntative, although tlnw interested in the realty 
 word not parties to the action ; R. S. O. c. (14, s. 2(1, and see .I/rA'ci/y v. Clini'e, 
 21 (Jr. 51.5. ./ . 
 
 No actum can lie brought by a legatee, or next of kin, against a [lersonal 
 n-liresentative before a year has elaii.sed from the death of the testator, or 
 
 lienuival of 
 assets may 
 lie i"e- 
 strained. 
 
 Heal I'epre- 
 sentatives, 
 wlion ne- 
 cessary 
 parties. 
 
 No action 
 for admin- 
 
't; 
 
 ^•< 
 
 848 
 
 Rule 320. 
 
 iHtmtiiin 
 
 too, (ir uoxt 
 of kin, 
 within H 
 year of 
 (loatli. 
 
 HiKll Comt 
 can not ap- 
 point truH- 
 too in place 
 of oxoun- 
 tor. 
 
 When per- 
 sonal 
 I'eprost^n- 
 tativo lias 
 <liHtril)nte(l 
 ('Statu after 
 a(lvertiHini4 
 under stat- 
 ute, ailniin- 
 istration 
 refused. 
 
 Account in 
 
 Hurrofiate 
 
 Court. 
 
 Personal 
 rei)resen- 
 tativo dis- 
 trihutint,' 
 estalo 
 without 
 advertising 
 under stat- 
 ute, re- 
 mains 
 liahle to 
 creditors. 
 
 Infant not 
 liable to 
 account. 
 
 I'aynient 
 of lof,'acy, 
 is admis- 
 sion of 
 assets. 
 
 Adminis- 
 tration re- 
 
 COMMKNCEMKNT OF ACTIONS. 
 
 intestate, ',V,\ (Jen. It, <•. H; S/n./rr v. Sliiifi', 3 Cliy. Cli. 1 ; Virimi v, IIV.«/. 
 hruuir, lit Or. 4(>1 ; liut .s.c Wallis v. W'nllls, !» Ir. (Miy. .'■)11 ; /V'.w, v. 
 MdnNii/i, 2!t W. Ii. \',V.). Hut an action for tlic protection of tlic estate siiiiplj-, 
 may lie ItrouKlit by a le^Mtee, ur next of kin, a^,^'linst iin exe(riitor '/i' .mih <ri// 
 liefiirc the lapse of tlie year: Ih-dntiiiiur v. f!i'fi,l<'iii, '1 II. it M. |!)1 ; Imt not 
 f(pi' administration as well: Itnirliiniy \. I.iniilicii, 1 .1. it II. -triK ; Onriiiiilun 
 \. W'liiil, 'M r>eav. 17o. Fnrnierly the lli^rli ('(Piirt liad no jiouer to iip|Hiim 
 an exeeutoi', in jiIium' of exeeutiirs wlio have lieeome ineonipitent to lut 
 throuKh hodily infirmity, tiiatcould only lie done iiy tlie .SmroKate ('(unt; ner 
 Would the lli;,'h (luurt aiipoint a trustee in place of such executors : Cnn-iiinl \ 
 llnini, 2 (Jr. ;}I0; hut in llr M<i,.ir. MrMjiinr v. .lA.-/n-, 21 Cli. I), "i 
 Under Till' TniKh; /I'lV/i;/' .ti7 a trustee was appointed to di.scharKe the diitins 
 of ail executrix who retired : and see l!r Mmiilni before Hoyd, ('., lltii .\|iril, 
 1KS7, and it would seem tiiat Itnlr WW does not extend tlie power of tlie llij,'li 
 f'oiirt ill this respect : see Itulr lUl, note. liut wliei'e an executor li:is licconii- 
 iii.solvent a receiver will be a])poiiited : llnnnlil v. II ullin, \) ( !r. 411! ; iinil scf 
 Mi'iifliinii V. hri'in'r, 2(ir. IJKi. 
 
 Where tlie |ier.sonal representative has duly advertised for creditors nndcv 
 H. S. <). c. IKt, s. H(J, and has distributed the estate, that is an answer to h 
 sui)se<pient ;u'tioii afjfaiust him for adiiiiiiistration, liy a lef^atee : .see iVni-luii v. 
 Slim-//, 1 C. I*. I). 2K>; or by a creditor : ('/n/;/ v. '/Imrhni,/, L. 1{. ;i M(|. ;W, 
 even tiiou;,'li lie have retained money in liis hands to answer lefjracies, hetvube 
 from the time he sets a|iart moneys to answer lejfacies, he ceases to hold them 
 as executor, but iiecomes tlien a trustee thereof for tile lej^'atees : ///. ; Ciim- 
 ri-ini V. Ciiiii/ihill, 27 (!r. 307; HkIIiiiiI v. Miirsihii, 42 L. '\\ X. S. 7<i.'» ; ''''(/• 
 Itriiilh V. Dinii-iinilic, 28 (Jr. 27 ; liut see Xuhlf v. ISnit, 24 Meav. 4!lil. liut if In- 
 lias notice of a creditor's claim, he is not di.icliai'ffed because it was not sent in : 
 
 Wiiuil V. WiHiil, MiirL-iri'ir.-< Cii.si; 21 \V. R. 135 ; /.'-■ /,<in(/ C-nlit fn. ,;l In-luml. 
 W. N. 1872, 21(1; and if the advertisement is insuHicient lie is not protected: 
 
 Wiiiiil V. \Vrii//ihiian, L. H. 13, K(|. 434. 
 
 Where also there had been an .u'cunitiiiu' in the Surro^jrate f'ouit by tlie 
 per.sonal representative, and no objection made for eif,'ht > ears, the rif,'lit te ii 
 further account in the High f^ourt of .Fustice was held to be barred : lliil v. 
 La II ill 1,1, 18 C. L. J. 178. 
 
 Personal representatives distributing an estate without advertisiii;,' uniler 
 the Statute (K. S. (). c. Ill, s. 3(i), or without the authority of the f!imrt 
 remain liable to a creditor, though thev had no notice of his claim: Knukh- 
 hull V. Fnn;ilii'iiil,:i My. & Cr. 12(): 'Xi l>lr v. /in//, 24 I'.eav. 4!l'.l : .A://o//,< v. 
 Jiffiriis, 1!) W. 1{. 4(!4 : and also to legatees; and where the exeeiitiir liii> 
 distributed under a mistaken construction of the will he is liable to the partie^ 
 injured : llillinnl v. Fulfin-il, 4 Hh. I). 38! » ; lluiil/nn v. 1','tril, W 1). .M. (i. 
 (;(li8 ; Itujih V. Illiil.-i-, 2 Sell. & L. 243; liut he would have a right to ivennp 
 himself out of any further payments due to those who had been overpaid : 
 Dililii V. (liiirii, 11 I5eav. 483; and would also seem entitli'd to call on tlieiii 
 to refund the mouev overpaid them, but not any interest thereon: .liurix \. 
 Wiil/ri:sta,i, L. H. 18 Kq. 18. 
 
 An infant executor or administrator is not li;ible to aecoiint for assets 
 received bv him whilst a minor: Xn.'ili v. MrKmi. lo (Jr. 247; lliiiiliiiiii'''li v. 
 Sni,llii/ii/i;':^ Huss. 324; Merlin, i/.s' Jin, il\. .\/ii,i/,ill,,h) V. K. 334 ; -JdC. L..'. 
 377. 15ut ii judgment for an account against a trustee who lias received 
 moneys while an infant ought to be generid in its terms and not ediiliiied 
 merely to his recoipts after he comes of age : J,, II, /liirni's. (innnsw .l/i//'i«, 
 31 Ch'. 1). 147. 
 
 Payment of a legacy in full, is, p,-iii,ii ftifif, ;in admission of assets tii pay 
 .all legacies in full, but it is opeji to ex)ilanation : Ciilr„iii,i v. Wlii/i'liimL 3. (jr. 
 227. Where an executor in a residuary account stated that he ri'tiiiiied tiij" 
 to meet outstanding legacies he was held to be precluded from afterwanl- 
 showing that tli<^ statement was a mistake : /l,'rii-.i/i ,■ v. /'I'l/m; ■''>o I/. '!"• ^' '''■ 
 771. 
 
 Administration has been refused where the estate was sworn !>> the execiitei'^ 
 not to have exceeded >«.'>(): /■>«/<■/■ v. /-os/zv. I'.KJr. 4(i3 ; but see l.'i /'W/rwiiv, 
 
 .1^- 
 
PARTIES— TRUSTEES, ETC. 
 
 349 
 
 1 C'liv^ *"'• -''' ! '^"'' ^vlicn' the i)laintiff's claim aH Icgatc^u, only aiiioiintcd to Rule 3i20. 
 |2S, 'iKitwitliHtaiuliug it was allugiKl that tiwrc. wtTe other Icgaisii'M for a con- funed when 
 hiilt'nilili' simi rcmainini^ unpaid, adniiniHtratlon waH nifiiHcd, though th« suit estate 
 waH iniiipiMisfd : liei/ittihlnv. Cnitjiin, liMJr. ()27. Administration has also In-cn sniall. 
 refused wiicrii the applicant was a partnership creditor of the deceased and it 
 waH proved that his separate estate was insufficient to pay his separate cre<litors ; 
 Re llama 1(1, luliivrt/.i v. lUviionl, 32 Ch. 1). 4-17 ; ■% L. T. N. S. 4(». 
 
 Tliis Ituir .v|)plies to applications foriulministration on summary a])plications Utile ap- 
 iii ChamlHTS, nnch'r /.'"/'■< IttJo, JHlit, !(72 ; Imt it is to l)e noteii that (Jl. I of plios to up- 
 tiuH Hall' is (Miiifined to actions liy a rcKu/uiiif/ legatee, or next of kin, and Jiitk j'lK'ation in 
 L' is confined to actions l)y a legatee interested in a legiuiy charged 'M"'" real f^J"",",,',"'". 
 eHtate, and therefore neitluT of these chmses extend to actions l)y specific intration. 
 legatees, or pecuni v.y legatees whose legacies are not charged on real estate. 
 
 Sl'ii-Cl.Ai sK 4. A new truste(! may he anpointed in an action t>y one of 
 si-w.rii\ cf'^i III" 'I I'c /ii'nlfiit : ./unci v. ./anus, <) llare, Aiip. Ixxx. 
 
 A suit l)y one of two ccstiiin i/iif Iraslfiil to recover an annuity charged upon 
 luiid (U'vised to the defendant, was held maintainable without making anotlier 
 i-fnUii III"' tri'il interested in another annuity chaiged on the same land, a 
 party: Rfi-i v. Kiiiihlmrk, \,. I,. 12 K<p 225. 
 
 Hut parties who (daini adversely to the trust could not formerly i)e made 
 luirtics to a suit for the t^xecution of the trust: Alliinifii-d'i'Dintl \. Armi <'or- 
 liiimliiiii, H I). (J. .). it iS. 1)37, where it is said that Tnllinl v. Hurl iif Itmliwr, 3 
 .My. k, K. 252, to the contrary had lieen constantly disapproved and never fol- 
 l(i\'v('(l ; hut sec now /I'l'/cv 30], 3(»2. 
 
 .'Vll persons from whom an account is re({uired nnist l)e mafle original parties PevHous 
 to tlif action, .see Ititli 32(1, )>. 34(» ; thus a cegtui i/ni tniKl who has heen party to from whom 
 » breach of trust, is a proper party ; ./b.wc v. Ileniir/I, *> \). M. & (J. ti(»!) ; and a iccount re- 
 Btraiiger or a creditor, who has joined in the hreach of trust m.ay he joined : '.liy.g ? 
 Liiiiil V. lihuiHliaid, 4 Hare !( ; Hank n) TurnHln v, Hi'urir A: Turovln il/"/"«/ uotwitli- 
 Firi' I ax II 11 inn Co., 2(» (ir. 102 ; VmiKi'lt v. IMl, 1 Y. & C, C. O. ot'.l) ; Stain fmi standing 
 V. Till- Cnrriiii (,'ii., 18 Heav. 14G. Hut if a trustee connnits a hreach of tnist, be parties. 
 the person particijiating is n(tt a nt^cessary party to an action for the general 
 administration of the trust estate : Tijl'uuy v. Tlioinfismi, it (Jr. 244. 
 
 Wliere a suit was brought by a niiruiindennan for an accoimt against tnistees, 
 tiie tenants for life who were served with the decree, were held not entitle(i 
 tdcall the trustee to accoimt as to the inctnne : Whilnfi/ v. Sniilh, L. K. 4Chy. 
 
 m. 
 
 The Court will decree the execution of a trust of lands in a foreign country Kxecution 
 when tiie trustee is rt^sident within the jurisdiction: Siiii/h v. JIciiileriuH, 17 "^ ^^^^^^^" 
 V,T. H ; and see A'c UtilwrUnn R. v. A'., 22 (ir. 449. foreign 
 
 ' country. 
 
 Su»-('l,..\i;sK o. —Where jiroiierty was offered for sah' by a trustei; under Sale by 
 depreciatory conditions of sale as to title, the sale was restrained in a suit trustee re- 
 iiwtituted iiy one of several rfx/ni.-! i/iir trnslral : />fiiicr v. '•iili/iiiij/inDi, L. H. strained in 
 S Chy. !I02. " «'"' '>y ""e 
 
 ,,,, .1 . . , , , ,,.,,. .of several 
 
 Where the action is nece.s.sary and pro|ier, and has resulted m Ixjimfit to the c. q. t. 
 co-owners, they may be compelhtd to bear their proportion of the expense of 
 tlie action, according to tiu^ advantage tliey an^ shown respectively to have 
 derived from the proceedings : (,'ai/f v. Mit/linl/iun/, 1(1 (ir. 145. 
 
 Sriici.AisK li. -Where iin at^timi for administration is brought by the per- In action 
 siiiial represiiitative, som(> si^cial circumstances retpiiring the intervention of for adinin- 
 tiie Court must he shown: di/i' v. (ilin-er, l(i(ir.3i)2; linrri/ v. Bami, 10 Or. istrationby 
 m-, (Irani v. (I rant, 10 P. K. 211 ; 18 C. L. .1 . !t!l. ft seems that he has no right {.l^'iregen- 
 tomstitute an action merely to obtain an indemnity by |)assing his iiccouuts : tative 
 nin>f\. Cani,iiin.% 3 (Jr. (i02 ; CoU' v. (Unirr, 1(! (ir. 302. As to whether a defi- sjieoia'l 
 ciency of assets to (jay debts in full is alone a sutKcient reason, seems doubtful : circum- 
 •M(v/«,(//i v. SiMnaw, (> P. R. 140 ; Rv Ktti', (i P. K. 150 ; K< S/iipmini, Wallace, stances 
 Ijjliipman, 24 (ir. 177 ; Marsh v. Mnr.li, 7 P. H. 120 ; Ri Jack; Jack v. Jack, "'"«t ')0 
 13 C. L J. ;«H: r,. Ih-nmU'n, (lihike, V.C, 28th .Jan., 1878) ; and see further, '"""^"• 
 «"/f IMlit, Where there W(!re leaseholds it was held that the executor was 
 i-ntitled to bring an action in onler to obtain indemnity against liability on the 
 
 & 
 
 S 
 
 =5*^ 
 
 
 
 
350 
 
 COMMKNCKMKNT OK ACTIONS. 
 
 Rule 320. ('(ivfiiiiut^ ill till' U^ii.iH : Iti litisimnlh, llmriinl v. /v'.i/ok, 15 L. T. N. S. l.'tfl; 
 /tiiitsuii y. .s„,ii,iir//, 1 Dr. iV Hiri. '>7') ; 4 L. T. X. S. II ; hut sec l(. S. O. c, lid' 
 8. HI. Till! jiIhi'IH!!' of :i lr(,'ati'c' Ix^yoiiil tlic jiirisiJiiitiDii, w Kdiii IIic ixcciitui-. 
 
 •T- 
 
 11(1 limy 111' 
 iirdortiil 111 
 (lay ciiHts. 
 
 Kxdciitiii' 
 limy lii';^iii 
 suit hofiiro 
 probii to. 
 
 iii'i' uiiiilili' III ilisciiviii', 
 i:iiiiiliiK' til llic ( 'iiiirl : 
 Wliri'i' tlir iii;t.iiiii is 
 
 WHS 
 
 /;, II' 
 
 ii'li 
 
 'i/i. 
 
 til 
 
 iimco.'ssiinlv 
 
 III' iinli'ii'il til pay ousts, or umv 
 
 III! a Hiiiticii'iit 
 V. W'k/,; is (I 
 
 l)i'iiu;.,'lit by tl •; 
 III! riifuscil liis 
 
 Ki'iiiiiiil fur till' lAi'i'utiin 
 '. IM.-.. 
 
 I 'ITS! mill ri'iH'i M'litativi', h,. 
 <'iists ; si'i' I'lisi's citrii H'lli 
 
 II' limit 
 I 1)1. k 
 
 II' 
 
 Rxocutor 
 miiii'^ 
 Olio of sev- 
 eral co- 
 cxui'iitois. 
 
 Hut c. (/. I, 
 iiuoil not l)u 
 joined. 
 
 Action liy 
 
 pofHonnl 
 
 veiireHeii- 
 
 tativoK to 
 
 enforce 
 
 claim 
 
 afjainKt 
 
 realty. 
 
 iii:i\ 
 117:?'. 
 
 .\ii cM'ciitor iiiiiN' lii'iriii '111 lu'timi iM'fiii'i' iililaiiiiiif,' inuliatc, Imt 
 lilitaiii |inilia(i' hi'fiii'i' till' ti'ial : Xrnimi \\ Mf //■•'/H'/i/dn /.'niiii-nii t'u,. 
 Sill. ."iS.'f ; Ti'irf ,'. /tn/ii'iiK'iii, l(i Out. I'Xi ; or lii'torc a di'fi'iUM' i.s lilid tlmt 
 is nut i'.\i'(Mit(ir : Siiniiiis v. A/i/iii'in, li Sin. 211 ; Imt si'e /■^h'/ihn,;//' Life As.inr- 
 (iiiii ('(I. \, Alliii, 1!l(ii'. .V.I.S ; iiiid till' saiiii' ruli' apiilics in iiiliiiiiii.~tnitiir.i : 
 Hiiniiilnrii.s \. Ifiim /th n iis^ W |'. W'ni.s. ;{.")(). liiit ulii'i'ean I'M'Ciitni', lii'liii'i'|ii'ii. 
 liati', lirniivjlit an actiiin til I'l'oiivi'i- all asset nf tlir I'statr, « liicli tlii' lirfi'iiiiunt 
 lia'l I'i'fiiso 1 til di'livi'i' ii|i until pmhati' .sjnmld lii' (ilitaiiicd, tlic aclion wib 
 stayed as liein^ Irivolous and Ni'.xatinus ; 'I'luii v. ('Dniiiiirrinl IliiiiLiiKi Cim- 
 /III II II, 1- *i. \t. I) L'lM ; 5(1 J 1. T. N. S. .'{ti."( ; and an cMi'iitur iiitrriiiiildlin^' »itl 
 till' ('Stall' liit'iii'i' pi'iiliati' may 
 lie ap|i linli'd at tlir suit uf a 
 N. S. ,'.M(i. 
 
 All c.xi'c'.itiir caiiiiiit uiidi'i' 
 cii-excoutnrs wlin have pi'inc 
 L-itrh, J.. U. 10 ( 'liy. 41)4. 
 
 \]\ aotiim iiia\' be lii'im;,'ht liy a ti'iistoe afjaiiist liis oo-trustci- to I'fi'ovcranii 
 scciiri' till' trust fund, witlmut joining,'' any of t\\c ri.ttiii.si/iir tniMiiil as partii'.s : 
 Hiii'xiiii V. Fiiurrlt, 11 Hoav. M'> ; Jiminniit v. Wim/ii/, 20 I'l'.'iv. 'iKi; Mint v. 
 Sill, II, '\ V. k (J. ('. C. 2\\'i\ I'aik V. hilijir, 4 I). (!. * S. VM \ /■'rimcn\. 
 Fi'iniiii, '.i V^'s. 7a ; and an action may also lie l)n>iij,dit liy the tnistii' agiiiiist 
 i\-[\t\ I'isliii ijiir tniM to recdViir tlio tni.st fund witliimt niakiiijf the other ('',«/i"j 
 i/iir triisliiit parties; Jirii/i/it v. l/(iiiies, 1 Coll. 7'2. 
 
 All is.xeeutor who advanced money to iiay tlie price of certain laiid held by 
 his testator as lessee with a riffht of purcliase, was held entitled to lufiucn liis 
 claim aiJtainst the land, for the advances so made, the personal estate lii'iii^' 
 e.\hausted : Lininin v. Jmai/n, ',( (ir. Kit*. 
 
 lie restrained fnmi .so ilniiivr, ami <i n iiim'I' inuv 
 Oo-e.\i'Clltor ; Jii ri Mnmr, i;{ I'. 1). ;!(; ; :,H ],,'\\ 
 
 this or.ier liriii^' an action aj^aiiist one or two 
 d, with lut making' the other a party; Lutehv. 
 
 A personal representative who is a creditor of the estate may, where tlie |it'r- 
 .soiiality is exhausted, obtain ju(li,'ment against a devisee for adiiiiiiistralioii iif 
 the reality devisi^d. To such an action the heir-atdaw was a proper party ; Imt 
 where the devisee made no ol.jectioii in his answer to his not being jniiiiii.aiKl 
 the plaintiff alleg(!(l by his bill that there were no lands descended, a ilreiii' 
 was made in the absence' of the heir, for the administration of tlii^ realty : 
 Ti/f'iiHi/ V. 'fiil'aiii/, H (Jr. loH ; Imt .see now The J>cciiliitioii i<f Hsliita Ai'l 
 (U. S. (). 0. 10H)s. 4. 
 
 St;u-ci..vts|.: 7. -'Am: K. S. O. c. 122, .s. (!. The iissignee must take the bciicti- 
 eial interest in the claim assigned. He cannot sue in his own naiiie alone, 
 either under the statute, or under this liiilr, where the assigiiiiieiit is iiiatli' 
 merely to enable him to bring the action : Wood v. McAI/iiiu; 1 Out. App. 
 2.'U ; and see Xntioiinl I'rovinciiil Hunk of Knijliind v. Jliiric, 44 L. T. N. S. 
 •iSo ; (i (^ H. 1 ). (12(i ; Imt see liurliiiHnn v. 'llall, 12 1^. 15. 1). 347 , 50 1.. T. N. S. 
 728 ; •').'{ li. .1. (,>. 15. 222 ; wdiia-e the assij^niment is only by way of security, thi' 
 assignor may sue in his own name notwithstanding the statute ; lloxtriiwmry. 
 Rithinxoii, 23 C. 1'. .'550 ; haw.vm v. (.'mhani, 41 U. ('. <,^ 15. .5,*52. A bond tn 
 seoiire alimony to a married woman was iield not to be assignable so iw to 
 enable the assignee to sue in his own name: RtHymxIcin \. floiijiii;''^^^^^-^- 
 <i. 15. 2!)5 ; J{i Jlohinson, 27 Cli. ]>. KiO. Any deff^iice existing against the 
 assignor at the diiU'. of the assignment may bo set up in an action by tlic 
 assignee; Kirliaiiiic Hunk v. .SliuKon, 32 C. P. 1.58. Where the plaintiff li».< 
 only a jiartial assigmni'iit, the assignor should be niiwle a jiarty ; but the objit'- 
 «iuMiiiei;i, *^'"" when taken at the hearing was cured by the assignor ajiiK'nriiig bycounsil 
 inay be set ^^'x' submitting to be ,'id l"d as a party plaintiff, and bound by the proceeding": 
 up. Yalis V. (''rcitt ]. < <tirn Jmihuii/ t'i»iipany, 24 (Jr. 40,'). 
 
 .\sHignoe 
 iiiust tHk(; 
 bonetici- 
 ally. 
 
 .\li(l uliso- 
 luioly. 
 
 Jiond to 
 secure ali- 
 mony is 
 not assign- 
 able. 
 
 Defences 
 existing at 
 (late of as- 
 sigiimciit 
 
 »2I. Tl 
 
 ivijiiiru an 
 iind tniiy, 
 
 swell jH'l'.Si 
 
 onltT ill 111 
 tliu ilefcud 
 to costs as 
 in the mat 
 
 M'lli'le pi'oci 
 
 till' t"^f•l|ll^ w 
 I'Olnl,,, of till' 
 
 Id ].. T. X. S. 
 
 Wiii'i'c trust 
 
 |il'iH'i'i';|iM^\.. : . 
 r'lill.jlk'l of ; 
 
 prii'i': in Waal 
 I'JI. 
 
 Wlii'i'i. the ei 
 cntitli'd to cost 
 Iticlinril.viii, 1 I 
 
 •\><ag,'iii'r;d 
 
 till' Collllui'l wil 
 li:ivi' been tirst 
 Tlii'i'i- iii;iy be 
 Midi ,'is the o 
 iuiiiiiiiit of hi.s 
 Sii-in; 21 Ch. 
 Funtn- \\ Ihiii 
 
 iti htiiiiiiiiii^ n 
 
 Wlli'i'i' the CO 
 wan iifjij that i 
 >itl>IHiia \-. l^hiH, 
 
 »a3. In 
 
 Rule 320, w 
 are to be .se 
 the Court o 
 with the no 
 and aft(3r ki 
 ings in the 
 made parti, 
 "pon the ph 
 'he judgmo 
 Court to ai 
 Jourteen da 
 587. 
 
 TIleK.ij,. ]{„] 
 If directed by 
 
 •'-"'i'i>. ;{4i-2, 'J 
 
I'AUTIKS — ADDINO AFTEU .lUDQMKNT. 
 
 Sfjl 
 
 :Vil. In all the above cases the ('ourt, if it sees fit, *'"'^y foV^m 
 require any otliiT person to he made a i)avty to the aetion, ,„ Jj^,,, 
 1111(1 may, if it sees lit, <i;ive the conduct of the acf ; i to 'i-i't* <''""•' 
 Hiicli persons as it deems proper; and may maki; such ^|lli'^■l)|'<•^•- 
 (»r(k'l• in any particiiliir cases, as it deems just for placing,' J,','i'|',';.Ii"HH" 
 tliu (let'eiidant on the record on the same footing' 'i refj;iivd '""■I'"*- 
 to ('(wts iis other parties having a common intere^i uith him 
 in the matter i'l (puslion. ('liy. (). f)!). 
 
 Wlii'i'i' iiriifiMMliiij,'.s arc iicccssury .i:^';iiiist iu'inohs w Iki liiivi' Imd (Icji'in^'s \\ ith 
 till' t'-filur w hnsc t',.tiit(' is \):U\'^ ill liii iiii-tci'i'i I, ilii' I'Nccutc ii' liii- 11 n;,'lit tn llic 
 (■(iiid ,, lit tlir (Miisc unless iiiisc'iiiiiliict lias liccii |ir.i\cil : /j 'imln.ii rm \. V'V.v/m r, 
 |(IL. T. N. S, I'.'t. 
 
 WIlcT'c tl'Ustcfs Wi'Ve llC(!iillUtilli,' liMl'tic's tlicy were not J^ivili till' ciiliihu't (if 
 lil'iKTCiliMj;- ; A//<ii V, jVor/vV.; \V. N. ISSI, U.S. 
 
 f'oinliH't iif :i. sale was ^'ivcn tn till' [lartv must inlcri'.slcil in ir^tt iiij,'- a nimd 
 |irii'i': ill W'litilh 1/ V. t'ii/iiiiiii, 'M \\ . I!. 7t>'.' ; ami Ihn-nn \. \\'ri<ihl, WICU. I). 
 ■Ill 
 
 Wlicri' till' ciiii'liK^t of nil a'liiiiiiisti'atiiiii actinii is j,'-ivi'ii tn a cicilitdr lie iw 
 tiititlfii liicMsts as lictwrc'ii siilicitiir ami clii'iit : lii liii hdnlsun, Uii'hnn(suii. v. 
 Uichimhim, M Cli. I >. (HI : W, L. 'I'. X. S. L'7'.l. 
 
 As ii jji'iii'fal lull' wiicrc two actimis fur adiiiiiiistratioii have liccn Cdiiiinonocd 
 till' (■(iiiiiiii't will lM';,'ivcn to till' plaintilf in tlif first, cvfii tlidii^fli ii (Ifcrec may 
 ii;ivi' liiTii lirst olitainid in tlic sccdnil. This rule is not liiiwt'\<>r iiiHcxilili'. 
 TliiTc may lir spccaal circ'iiinstaiiuos wliicli the (loiirt will take into accuiint 
 Mii'li as till' (il)jc(it of tlic first, plaintiff in uiiinnifiK'inw lii.s action, tin- 
 aiiiiiiiiit iif his intfrcst, and the natiii'i- of iiis claim ; A'f Sir/'ri; Millar v. 
 .SW/v, L'l ('h. I>. (147; Tnii-iixi ml v. Tmni^i ml, SA Cii. I). 1(M» ; A'r MrRm, 
 Fnntir V. I)ari.\ •_'.") Cli. \). 1(1. Sec also /'rrriii v. J'rniii, 'A ('U\. CU. irrj, and 
 R( Di-iiiiiKHi, H I'. K. \VM), and notes to lliilr !l(iS. 
 
 W'liiii' the conduct of the (saiise was refused to a party, and he ajiiieaicd, it 
 WiiM licld that all parties were interested and should he served witn notice: 
 SiiihUia V. (Jdilliim, 71 Ii. T. .lour. 2(i4. 
 
 ;$'i2. In all the above cases the persons who, hut for {^"™J'"„ij 
 Eul(j 320, would have been necessary parties to the action, bonecos- 
 are to be served with an oiBce-copy of the judgment (unless ticYoxcopt 
 the Court or Master dispenses with such service) indorsed [™J'j"^p*-^" 
 with the notice set forth in Form No. 33 in the Appendix, ^;Y'''\Mi't''' 
 and after such service, they shall be bound by the proceed- 
 ings in the same manner as if they had been originally 
 made parties to the action ; and upon service of notice 
 upon the plaintiff they may attend the proceedings under 
 the judgment. Any party so served may apply to the 
 Court to add to, vary, or set aside the judgment within 
 fourteen davs from the date of such service. Chy. 0. GO. 
 587. 
 
 The Kng, Rule 18S3, II. 1(>2, make the service of sucli jiersons necessary only 
 if directed hy the Court or a .fudge. See Mmi v. Niirtan, in uoto to liille 
 •^-•»,H'. 341-2, •^111. 
 
 
.^^ 
 
 352 
 
 Rule 322. 
 
 Office copy 
 to be 
 BervacV 
 
 All persoiiH 
 who (but 
 for/i'i(i<!3'20) 
 would liavo 
 been neces- 
 sary i)ar- 
 ties to ac- 
 tion, must 
 bo served. 
 
 Infants. 
 
 Lunatics. 
 
 Parties 
 who are 
 served, are 
 hound by 
 proceed- 
 ings. 
 
 I'artios 
 served uniy 
 on notice 
 toplaiDtitl' 
 attend tlie 
 })roceei1- 
 ings. 
 
 Costs 
 
 where 
 
 Httending 
 
 nuueces- 
 
 sary. 
 
 Persons 
 not attend- 
 ing pro- 
 ceedings 
 not en- 
 titled to 
 notice. 
 
 COMMENCEMENT OF ACTIONS. 
 
 Office Copy to be Served. — An office copy of the judgment must b(> .>(erved. 
 The copy of the judgment for service may be mtule an office copy, either by 
 the Registrar, or Local Officer in whose office the judgment is entered, or by 
 the De|)uty Registrar, or Local Registrui, or Deputy Clerk of the Crown, at 
 the jilace where tlie reference is lit^ing prosecuted : see Kiilm 1!), 547. The 
 office copy may be made, either by comparing the copy intended to be made 
 an office copy, with the entry in tiie judgment book, or with anotlicr office 
 copy. 
 
 Who to be Served.— All i)arties, wlio, but for Jin/f 320, would have lieen 
 necessary parties to the action, who have not been made parties by writ, must 
 be served with the judgment, unless service be di.spensed with. Infants and 
 jiersons of unsound mind not so found who are interested must be served: 
 (Varkr v. didih', 20 L. T. O. S. HH, in such manner as the Master before whuni 
 the reference is being prosecuted directs: Ruli- ;WH. P.efore [iroceediugs can 
 l)e validly carried on against an infant or a person of unso^ind mind not so 
 foimd. a guardian ad lifem must be ai)poiiited for such person. Service of the 
 office coi)y of tlie judgment on the (Ifficial (iviardian ail litmi .seems of itself 
 sufficient to constitute him gu.irdian ml litciti for infant i>arties requirinjf 
 to l)e served imder ll\ih- 322 ; I'lilf 337 ; see Riilf 3 ; but see notes to Riih ,S37. 
 Tlie procedure to olttain the a)ipointment of a guardian <ttl lUnn for [ler- 
 sons of unsound mind by order is not prescribed liy these Knlis ; .see ItiiliSS^ 
 and notes. Where a guardian /iff/ /(>'»( isappointed by order, heiuust lie served 
 with the order appointing him guardian, and tlie office cojiy of the jii(li,'iiient. 
 The Official (Jiiardian is usually a|i)M>inte(l guardian (/(/ lit( in. 
 
 Service out of tlie jurisdiction may lie directed: .see CliitltiK rx v. Liniric, 
 10 Ha. App. .xxvii.; Stromi v. Maori, 22 Ti. .1, Chv. !)17 ; orsulistituted service : 
 Dan. I'r. (1th ed. !l!)<». 
 
 Lffect of Serylce.-Tlie jjer.son sei'ved is not liable to acti-ouiit, nor tan a 
 motion for an injunction be made against him ; Walker v. Si/ifiiiiaiiii, L. K. 'J 
 Kq. 152 : Hop/.'irv. Hiirn'Koii, 2SOr. 22 ; lio/pli v. U. ('. liaildimj Soriit'i, IKJr. 
 275, 27H-!) ; see, however, //( rr Rrcx, liriK v. (icoriir, 15 Cli. D. lild. Neither 
 can he re(jiiire tlie defe'.idant to account any fartiier than if he had been him- 
 .self an oi'iginal defendant in the action : Wliitiicp v. Smith, L. K. 4 Chy. •)!;<. 
 A party served, however, may imiieach in the Master's office an instrument 
 set U]i ill answer to his claim a.« a legatee, on the ground of fraud : lliirtiiaj v. 
 J)i'r/iii;i, /io.s.vf'.v claim, 15 C. L. .1. 112. 
 
 Whether the party served attend the proceedings or not, he is bound liy the 
 1 iroceediugs. Unless he gives notice ti; the )ilaintiff of his intention to attend 
 the proceedings under the judgment, he is not entitled to service of notice of 
 the imiceediugs in the .Master's office : HiiiiHxh v. KntiHsli, 12 (Jr. 441. 
 
 IVr.sons who have lieeii ini|ir(i|ierlv served may move to set aside the service ; 
 Ih- Sinnatix, Ihttx V. IMtx, 54 L. T. \. S. 501. 
 
 Attending Proceedings. A person served is entitled, on giving notice to the 
 |ilaintitt', to attend the proceedings. .V party so attending, although entitled 
 to notice of the future proceedings in the action, does not thereby beccmie a 
 party to the action: h:ii>ilisli v. Kiu/h's/i. 12 Or. 441 ; Wn/Lrr v. Sili'jmann, 
 L. Ti. 12 Kq. 1.52; but see'ftf Rirx, Run v. (itinv, 1"> Cli. I). 4!M). 
 
 Under Rule 55 the Master has powt>r, among other things, to give special 
 directions as to the iiarties who are to attend on the several accounts and 
 inquiries : and see also Rah' 334. A jier.son served under Rule 322, and 
 attending the proceedings witlxiut special leave, may lie onlered to pay all the 
 extra costs occasioned by his so attending, if it ap|K'Mr that his attendance was 
 unnecessary : Sharji v. Luxli, 10 Cli. D. 4(i3 ; and see l)ai(lniiii v. Liah-, L. K. 1 
 Kq. 4!»5 : Rr .\fars/rll, W. N. 187!t, 12. 
 
 Persons .served with tiie judgment, and not attending the proceedings, »r« 
 not entitled to service of the warrant to .settle the rejiort : ''Vcni v. Mraninn, 
 W. N. l.SCiO, 122; nor of the notice of hearing on further directions : Lie v. 
 Sturrock; W. N. 187(i, 22(i. If any relief is intended t be asked against them 
 tiiey are entitled to notice, even tliough they have not attended the proceedings 
 before the Master : Ri- R>-ti, Rfes v. (Jtnrne, 15 Cli. 1). 4!K>. 
 
PARTIES ADDING AFTER JUDGMENT. 
 
 353 
 
 Motion to vary Judgment. Thf motion to vary, or set asiflc, the judgment Rule 322. 
 uiiist lit' inadf on notice to the |)laintiH'. Tlie motion is to he made before Partios 
 a iduifie in CoiH't. Jn the Chancery Division, tiie nioti(m slioidd he set down served may 
 t(i Ih' heard on a Wechieschiy ; and in tlie other ])ivisions on a Tuesday, or move 
 Friday ; Imt see Jinlr 211 at present sus|)ended. 'I'wo ch-ar days' notice of the a«^'nst 
 nidtioii must l)e given : s(?e Jiidf 47!t ; and it must be set down at least tlte day J"''K'"*-'" • 
 hi'fore tlie day named for hearing the motion : see Itnh: ~A\. 
 
 On tlie motion to vary tlie judgment by any person served with a copy, the 
 Court will lint direct the taking of accounts for wiiich no foimdation was laid 
 ill tilt' pleadings or proceedings in the action, except iierhaps on the terms of 
 allowing tlie party from whom such account is sought, an oiiportunity to 
 adduce evidence, to show why it should not tie granted : Fus/i'r v. Fimti'i; 
 L R, SCiiy. 3;«t ; and see Min'yfi/rni/,1 v. Ciltlircll, 10 L. T. X. S. 410. Addi- 
 tional accounts and in<iuiries have been directed after the report, at the instance 
 (jf a jiartv subsetpiently served with the decree : Rfi'ir v. lici'i-i', W. N. 1S71, 02. 
 Under tlie former practice in Chancery, any person served with the decne 
 might rehear the cause : KUisiui v. T/iimitis, 1 I). ,J. & S. 18. ., 
 
 Where the question intended to be raised does not ajijiearon the pleadings or 
 previous proceedings in tlii' action, it may be necessary to jiresent a petition in 
 thi' nature of a bill of review under tlii^ former Chancery practice. No iietition 
 for leave to file this petition is necessary : KidtZ v. i^hriiiic, IS Jul-. 348 ; IJik/i/oii 
 \ . McKiiii, 1 Chy. Ch. 380 ; and si'e Mu/<:-< 782, 78(i. 
 
 It would seem that a purchaser under a judgn>'!:t jn'onounced in an action I'urchaser 
 iimstituted under Ri'lr 320, is bound to see that it lias been served on all neces- bound to 
 .sary iiarties, so as to bind them by the proceedings, in the same way that a '^"e that all 
 imrchii-'er is bound to see that all necessary jiarties, are made parties to any necessary 
 other action in which a sale is directed by the Court. I'viiiui j'lirie, u\\\y the |]J!|J,jj^''i^y^' 
 jiersons who are actually named as iiarties to the record are bound ; ii"/'' 322 the pro- 
 forms an exception to this rule ; see Heevi' v. iictrc, W. N. 1871, .'52, and Rmfsell ceedings. 
 \.Rniiiiii(s, 3 Out. A])p. iVAi). 
 
 A purchaser, however, is not btnmd to in(|uire into the regularity of the pro- 
 ceedings antecedent to the judgment: (Jmnt v. hohh', l.T (Jr. (i.*);") ; Shriw v. 
 Civirfwd. 4 Out. Aiip, 371 ; Cul/in.s v. Dciisvii, 2 Chy. Ch. AiM, and see K. S. O. 
 c. 44, s. 10. 
 
 Dispensing with Service. —The Master, to whom an action is referred, as Dispensing 
 well as the Court, has under this Ride ])ower to disjiense with the .service of a with ser- 
 copy of the judgment. Formerly, where the Master dispensed with sttrvice he Y'ce of 
 must have stated the reasons therefor in his report: see Chy. Ord. 587; butJ""^™^*"- 
 this provision has not been t:nibodied in tiiese Ridcu. 
 
 An advertisement may be published for persons who cannot be found to be Advertise- 
 ■ierved, as a condition of disjiensing with service on them : see Ride 00. niont. 
 
 iSeryiee on some of the next of kin, who were resident out of the jurisdiction 
 was disjieiised with : Kiiijlifili v. Kniilif^h, 12 (Jr. 441. An apidication to the 
 Court to dispense with service may be made <'.'/"^/Vf ; //*. 
 
 Absence from the jurisdiction is not of itself .sufficient reason for dispensing Absence 
 with service : ChidincrK v. Ldiirie, 10 Hare, App. xxvii. ; Mayheri/ v. Broiik- from invit- 
 ing, 7 D. M. & (i. (i73 ; Stron,/ v. Maori:, 22 L. .1. Chy. 017. ' ' diction. 
 
 Whether partie-s on whom service of the judgment is disijensed with, either How far 
 liy the Court, or Master, are nevertheless bound l>y the [iroceedings, is persons not 
 nowhere stated ; it would seem that they are in the same iKisition as parties in served are 
 wliofle iihseiice judgment is pronounced unde" Rii'" 31(t, and that they are not "O"""- 
 JKniiid : see ha.,d>/ v. J/uji/inx. !) Hare, A'.p. .^xxii. ; .Uai/ v. yewtni), 34 Ch. D. 
 •h7 ; hut see Iliiiui'-lt v. Fnnler, 7 Boav. .'540. 
 
 Parties not having an interest at the date of the judgment cannot be brought 
 before the Court under this Ride : Cohjer v. Volyer, 11 W. R. 355 ; but see Ridi- 
 40. 
 
 J. A. 
 
 B8 
 
354 
 
 Rules 
 323, 324. 
 
 Objection 
 to iion- 
 joiiidor at 
 hcaritin, 
 ju(lf»uieiit 
 
 Hlivillf,' 
 
 rij,'litH of 
 absentees, 
 
 Cii BCB in 
 wiiich link 
 acted on. 
 
 ObjectionR 
 for want 
 of partifc.i 
 muHt be 
 taken 
 lirouiptly. 
 
 COMMKNCEMENT OF ACTIONS. 
 
 3S3« Whore a defendant, at the trial or on motion for 
 judgment, objects that an action is defective for want of 
 parties, the Court, if it thinks fit, may pronounce a judg- 
 ment saving the rights of the absent parties. Chy. 0. 
 65. 
 
 The Court may now in every af:tiou deal with tlie matters in oontroversy, .si» 
 far as reg'iirds tile rights and interests of tlui ))arties actually l)ef(ire it : /^'/c 
 3l'4. 
 
 The Court will only act under iic/c 323, where justice can l)e done to all 
 parties nothwithstaudiuK th(^ defective constitution of the action ; J.iiiiihert v. 
 n II Ic/d 11.11)11, 1 15eav. 277, 28(i. 
 
 Where in a .suit to set aside an alleged fraudulent conveyance by a debtor, it 
 apiH-ared at the hearing that a noti' /im fimjV.t.ii) entered against one of tln^ 
 defendants, the original debtor, had been waived by a subse(|uent luiiendment 
 of tile l)ill, the Court dismissed the bill as against that defendant, on tiic 
 application of the i)laintitf, without th«^ dismissal being e(|uivalent to a. Au- 
 missal on tli(f merits, and made a decree, saving tiie rights of that defendant: 
 WailiUi' V. Mrdiiitii, 15 (Jr. 2(>1. 
 
 A decree has been made under Chy. Ord. (>5, from which this Rnlr is taken in 
 the absence-of the assignee of a l)ankrupt : Mmihi-ni v. ItnuikiiKi,! 1). (i. 
 M. & {{. (i73;-;of a mortgagee: V,-llliiuii ,. Cliirh, 1 1). (i. & Sni. a)7; of » 
 |)er.son entitled in a remote contingency : huuhir. v. I'fi'l, 1 Coo)), tnnp, Cott. 
 3()5 :-- of the heir-at-law of the last surviving trustee, and of the personal reprc- 
 s(!ntativi! of a testator : Fiinlknrr v. I>iniid, 3 Hare. !!(!(. 
 
 An objection for want f)f parties should he taken as soon as jiossilile, and not 
 postjunied >mtil the trial, or mf)ti<)n for judgment : l.nki: v. •SmiZ/i Ki'nsiiuilwi, 
 11 Ch. J). 121 ; Slifrhiiii v. (Iri-<it /Oi.slmi Jii/. di., l(i Ch. 1). .5!); 2!l W. K. 
 t)i) ; the objection should be taken by motion, and not merely raised hy state- 
 ment of defence ; Ih., and see notes to Hnlr-s 31'.f, 324 ; and fiee Vnlliniri' v, lUr- 
 iiiiiujliniii, 24 W. H. 4;-)4 ; Itoln'i-tn v. linnis, 7 Ch. I). 830 ; 2(i W. K. 2H0, where 
 no costs of pleadings were allowed to plaintiff from the time the objection wa* 
 taken. 
 
 Misjoinder. 324. No action shall be defeated by reason of the mis- 
 joinder of parties, and the Court may ia every action deal 
 with the matter in controversy so far us regards the rights 
 and interests of the parties actually before it. 
 
 Adding and («) The Court or a Judge may, at any stage of the pro- 
 purtiesf""' ceedings. either upon or without the application of either 
 party, and upon such terms as may appear to the Court or 
 Judge to be just, order that the name of any part}', {x) 
 whether as plaintiff or defendant improperly joined, be 
 struck out, and that the name of any party, whether plaintiff 
 or defendant, who ought to have been joined, or whose 
 presence before the Court may be necessary in order ti/ 
 enable the Court eft'ectually and completely to adjudicate 
 upon and settle all the questions involved in the action, be 
 added. 
 
 (;c) i.e. pers(jn : I.oiiij v. i'vuksU'ii, 13 Ch. D. 3'Jl. 
 
 j" 
 
 m 
 

 ADDING PARTIES. 
 
 855 
 
 (h) No person shall be added [or substituted] as a plain- ^'^^ 324. 
 liff suing without a next friend, or as the next friend of a 
 plaintiff under any disability, without his own consent [in 
 writing! thereto to be filed. 
 
 Till' words "in writing" wcro not in the original Ru/r. 
 
 {<:) All parties whose names are so added [or substituted] 
 as defendants shall be served with a writ of summons or 
 notice in manner hereinafter mentioned, or in such 
 manner as may be prescribed by any special order, and 
 the proceedings as against them shall be deemed to have 
 begun only on the service of such writ of summons or 
 notice (//). .T. A. Ihile 103. 
 
 Rnl<' 1H75, (). ic, r. 
 
 13 (1883 H. 133), except tiie words in 
 )f such wi'it of suninions or 
 
 Same iis Kng. 
 lirai'kcts 
 
 (y) As to the words " onlv on the s(;rvice 
 notice," see Tlir li,„r,-sjicl,l, 51' L. T. N. S. 128. 
 
 As a genenil rule where an action is hronght against one only of sevtTal joint 
 ijDntriii'tors, he is entitled to have his co-contractors joiniul as defendants and is 
 iKit limited to serving them with a third party notice inider liiilr 32!> ; PiNci/ v. 
 Iliiliiii.siiii, L'0(^t. H. 1). l.-)*); Srarf v. Jdidint-, 7 App. CJas. .3(i4 ; but where the 
 piirty sued is on the face of tlie contract the sole contractor, and other i)ersons 
 iirc behind jointly interested, the contracting I'arty, when sued, has no right to 
 foiw the other ])ersons on the plaintiff as joint contractors ; Turnntd <(' lliunil- 
 h,i Xin: Co. V. Silro.r, 12 \\ K. ()22 ; see also A'//*'" v. MovIikj, W. N. 1884, 58. 
 
 The iirojier course for a defendant desirous of raising the objection that 
 Kiiine one jointly liahl(> with iiini has not been joined as defendant is t<j api)ly in 
 Chiunbers to have the action stayed, shewing that the person alleged to be 
 ji)intlv liable with hiui, is within the jurisdiction: MvArtliurw. //on,/, 1 Cab. 
 k E. ").")(). 
 
 Tile first claust^ is an extension of the Cliy. (). 53, which provided that no 
 suit should be dismissed by reason of the misjoinder of persons as iilaintiflFs. 
 
 Tlie Court of (Chancery formerly nnder Chy. (). (15, exercised a similar jjower 
 (ifdcidiiig with the questions raised in a suit, wherexcr justice could be done to 
 all parties notwithstanding misjoinder or nonjoinder: Hvt^ J.ntiilifii \, //iitrliiii- 
 »iii, I 15eav. 277, 28(i. Where necessary, the decree expressly saved the rights 
 (if absent parties. 
 
 Fmm the provisions for adding parties contained in the sub-clause of this ' 
 
 A'/'/c, it would apjiearthat "misjoinder" includes "non-joinder." 
 
 Misjoinder, though it cannot defeat an action, may aflfect the costs : l{ober(.s 
 v.Kivii.s, 7f;ii. I). 8.30. 
 
 Misjoinder and non-joinder of parties are not since the Jud. Act groinids of 
 demurrer ; see n/akr .{• Co. v. Moure, 8 L. K. Ir. !I5 ; W'l'nlermim v. Sorh'tf <>>/(- 
 iriiU\ ftc, 1!) (^h. I). 24(i ; //ini/,r v. Voiiii,/, 4 Ex. 1). 25(i in notes to /tulr .384 ; 
 i 1111,1,1 v. R„l„;-lx,.n, 2 Out. 4.34 ; St^niic v. hiukrtt, 3 Ont. .370. The defendant's striking 
 course is to ap|ily nnder the present liidr to add, or strike out, parties, or recpiire out luid 
 tlif plaiiititf to do so ; and the defendant should rai.se any objection of this kind adding 
 that lie may have, at tlii- earliest ^lossible moment : Sli,;'li,ni v. Oyi'itt liiiKtrrii I'ftrtJt's- 
 «,'/. ''i'., l(i('h. I). .5!t, where the objection was not allowed though taken bv the 
 (lefMice; see also i{(/.s<«)H v. r„hii,, W. N. 1880, 10; linberl.s \. Kniim, 7 Cli. O. 
 
 ,*• .'''''■""'■ V. Itiii-h-<tt, 3 Ont. .370. Where the defendant's contention is that 
 iwlnitioiial jiarties are necessarj' to enabU- the action to proceed at all, it woiilcl 
 sfcm, however, that it is sufficient for him to take the obji'ction 'ov his defence, 
 
 & 
 
 % 
 
 leaving the plaintiff to apply to add partifis if so advise( 
 T', ,','"• '• •'"'"'"' -" ^V. R. 053 ; 42 L. T. N. H. 754 ; 
 maUw Mni-tisiiiijt C\i. 1). 780. 
 
 1 : see XiM's Kxpl,,- 
 4y L. .1. Chy. 720 ; 
 
856 
 
 COMMENCKMENT 01'" ACTIONS. 
 
 Rule 324, A (leiinuTci' will .still hf i)n)i)ei' when' the plaintitfs arc not ihthohs ciititlwi 
 to Iji'iiig the iwtioii, so that the ol)jectioii is one of substance, and not merely 
 that other i)arties should be also joined : MrClciKUihaii v. <''rei/, 4 Ont. H2il. 
 
 CMause (") jirovides a cure for misjoinder and non-joinder, by strikiiif; ont 
 or adding jiarties. A|)iilieations under it may be made by eitlier party, or the 
 Coiu't may act mcru iiintn : Ki)ii> v. limlhin, o Oh. I). 1(>0. 'V\w ))o\ver ^'ivcn is 
 very extensive, and may be exercised at any stage of the proceeding's, licforc 
 trial on motion, and at the trial : /»'//(</ v. Itiitlkiii, (> Ch. 1>. Kid, in a siuuiiiarv 
 way: Ituh'A'l'^. An order was made after delivery of a statement of claim : 
 Aiiiiii. 2 Charl. f'h. Ca. 2;") ; liut was refused as lieinff asked for at an unrcasdn. 
 ably late sta>,'e where the case had come on for trial and had Ijeeu adjoimiwl : 
 Willidiiis v. A ,1(1 n irs. VV. X. 1875, ZM ; 1 (^harl. ( 'h. ( Ja. (10. It cann<it be imulc 
 afterfinal judg'nient : At/dniri/.ii'fiKni/ v. t'or/niidfinii nf /tifiiiiiii//niiii, ITiCli.!). 
 42.'{. In tliat case new parties had succeeded to the ri),'hts and liabilities of the 
 <U'fendants, and it was held on ai)peal, that the ])leadinKs could not be amended 
 to intr(«luce these parties after final jud^rment, and that when it becomes neccs- 
 nary to enforce such a judw'nient aj,'ainst persons who had accpiired a title after 
 it was made, an action must be brought for that purpoKe. Where tin? judKiiieiit 
 is not drawn u]>, however, and can therefoi'e be recalled, the jilaintitf may lie 
 allowed to amend and add i)arties : Kiilh v. /tuti/iir. 2i) Cli. 1). ToO. 
 
 An apjilication to add as a defendant a person who ought to be, liut has nut 
 been joined, ougiit to be granted or refused upon the same principles on wliicli 
 a [ilea in abatement for the nou-joindei' of such j)erson would have succeeded 
 or failed : /»/■ Lord (Jairns in Kfiiilntl v. Ildiiiilloii, 4 App. Cas. .MC). 
 
 Striking StrUdng out Parties. Under the former practice, if a party was ini|in)iierly 
 
 out parties, joiiu'd, the defendant might dennu' if the impropriety appean^d on the face of 
 the ])rocee(lings ; otherwise it was necessary to defend, and |)i'o(;eed to a hear- 
 ing of the cau.se. The ))re.sent Rule enables the Court to strike out a party 
 impro|)erly joined, before expense is incurred. 
 
 If a defendant is imi)roperly joined, lie Khonld apidy to have liLs name struck 
 out, at the earliest possible moment ; but a defendant was struck out on his 
 own api»lication, though he had dt^livered a statement of defence upon whicli 
 issue had l)een joined, and delay only influenced the decision as to the costs : 
 Vatliinir v. Jiiiiiiinijli(uii A' Miilhiwl Ldiul, tic, ('oi'/jdrdlioti, 2 Ch. 1). .'<(>!). 
 
 Where defendants did not move under this Hii/r to \)t' struck out, Imt t(Hik 
 part in the defence, they were held jointly liable with otlier defendants to the 
 costs of the action : Tinnbarroir v. Jiraid, W. N. 1S78, l(»!t. 
 
 The Court will not virtually try the cause, however, on such an aiipliciition. 
 Where, therefore, a i''aintiff, a builder, s>ied for work and labom- done, and 
 niiule two persons defendants who occupied the position of les.s<'e and lessor, 
 alleging that there was a doubt which was lial)le to him, Lush, •!., <in tlie 
 apiuication of the lessor, refu.sed to strike him out on his statement that the 
 lessee was liable to do all reiiairs : Aiio)i. W. N. 1H7.'), 203 ; 1 Ciiarl. Ch. Ca. 
 o!(. Under an order striking out a defendant and giving the plaintiff leave to 
 amend, he may not amend by striking' out another defendant, even tliougli 
 that defendant's interest was determiiHKl : Wi/iiifr v. IIikIiIs, 11 Cli. 1). 43(i; 
 Kliritii V. Wdiif/idii, W. N. 1S7!), (i!». A defendant .soujjht to be struck (lut ii* 
 entitled to notice, that he may Ih! heard as to the (piestion of his costs : Wi/mir 
 V. Ihiildn, .Slip. 
 
 A defendant in ejectment, a tenant, whose landlord had obtained leave tii 
 «lefend, and whose lea.se had expired pending the suit, was notalUjwed to have 
 his name struck out, as the plaintiff's sec\irity would thus he diminished ; •/"'"'• 
 .ttoii V. O/iufi; W P. K, ,%3. 
 
 On gnnnids apart from any (piestion of ]>ersonal responsibility defeiidiUitsion 
 their own application may not be allowed to be struck out : see Ui'nlliH v. '"^tv- 
 Ion, 1!) Ch. J). 33(). 
 
 Adding Adding Parties. - This Rnlf is to lie read in connection with Rnli'if 300, 301, 445: 
 
 l)artie». Edvunh v. Litwtlier, 24 W. K. 434 : and any person who might have Ih'pii 
 
 joined originally under the latter Ruli's may be added under this llvli- 
 
• ", V'. ' y' I-': |^«"1 
 
 ADDING PAUTlKS. 
 
 357 
 
 Mr Smith V. Ild-^i'ltiiir, W. N. 1875, 250; 1 Cliiirl. Cli. Cii. 5() ; l.tunj v. Rule 324. 
 i'mxsli !i. VA (Ml. I). .'i8H, .subject to tlie ivstrictioiiH lu'ivafter rcfenvd to, iiiid Adding 
 to the i)i)U<'i' of the .hulfff in liin (li.scrction to refuse to interfere if injustice is parties, 
 likclv to l)e (lone in iiny way by tiio iwldition : .see Kdifanls v. Lmr/her, ;U 
 L. 'r. N. S. 255. 
 
 Tiie words '• «lio ought t(i liave been joined," in tliis Itnlr mean " ouj^lit, in 
 iinler to do comiilete j\istice, to have been joined," and, as a general rults "all 
 [liirtics iigaiiist whom remedy or relief is sougiit shoiild, if |tossil)le, be joined 
 ill till' same action " : pi r Archibald, .1., in Kilwui'ils v. Lmrllu'r, 45 li. J. (1 P. 
 41!l. 'riieie, an action was iiroiight against a imblisher of a newspaper for libel, 
 ami after issue joined the proprietoi-of thenewspajier wasadderl asadefendant 
 (111 till' |>laiiititf's application. 
 
 Wiii'ie a plaintitf assigned his interest to a tiiird person, who obtained an 
 ipiilcr ^'iviIlg him liberty to jirosecute the suit in the name of the original jilain- 
 tiff, it was held on the ajiplication of the defendant, that the assignee was 
 IhhiiiiI to set forth the assignment, by amendment or otherwise, in the state- 
 iiii'iit of cliiiiii, and that all jiroceedings after the order should be entitled in 
 liiitiicausfs : Srriir \. /.iiir.-mii, 1(1 (^h. 1). 121. 
 
 Hut the (y'ourts do not interpret the Riilfs as empowering them to add parties 
 ;it till' iiistaiice of a defendant to thi' same extent as upon the plaintiff's appli- 
 cation. 
 
 Ill an action to restrain defendants from using certain premises as asmall|)ox 
 liiiHpital, application was made under this linlr by the iilaintitf, to join another 
 liersoii with his consent who was an inhabitant of tlu^ same neighliourhood, on 
 tii('gri)iiiid that since the action was commenced the plaintiff had given up his 
 liiisiiii'ss and was going abroad. An order was refused, on the ground that the 
 riiiise of a.'tioii was injury to the plaintiff's own iiroperty only, and it was not 
 Mi'ct'ssaiy to eiialile the Court effectually to disposeof all ((uestions in the action 
 tliiit anyone be adih'd : Ihillmi v. SI. Mini/ AhlmUs, 47 L. T. X. S. lU'.t. 
 
 Where the plaintiffs were lessees of eleven houses for a lonjj' term, one iieing 
 xiili let, they, together with the sub-tenant, brought an action to restrain a 
 nuisance, et(^, sul)si'()uently the suii-tenant declined to go on. The other ten 
 liimscs having lieen let in tiie meantime, two of the other suii-tenants were on 
 a|)|ilicatioii added as co-plaintitfs with tlieir consent : //"hw Pro/iKiii/ iV I. i'n. 
 V. H. P. lliHsrniill Co.. 2!> Ch. I). l!l(). 
 
 Persons were add"d as defendants who appeared to be the persons really 
 liaiilc to plaintiffs, and were conducting the defence for tin; defendants sued: 
 .lr/r/m«v. \\;il.^,ii, Miniii/ii. (■',., 15 Out. 218 ; seellC. L. T. 81, where thedecision 
 wasattiriiii'd as to the terms of payment of costs imposed as a condition pre- 
 cedent to anieni'ing. 
 
 In llii/liiiiriii/ \. /till)/, (i Ont. App. 24<), where the plaintiff in an action to 
 ii'straiii a nuisance a] ipeared to have no inten^st, his wife lit'ing the owiiei- of 
 tlie projierty injured, an application to substitute the wife with her consent as 
 plaintiff was refused, it being held that the suit was not merely not properly 
 ciinstitnted Imt had no proper existence at all, and another person who had a 
 I'iglit should not be substituted for a person who had no right to institute jiro- 
 ci'i'diiijfs ; see also .Vcc W'cxlmiiis/i'r liiiiirrji Cii. v. l/iiiiiiah, 24 W. R. 8!)!»; 
 W'lilniit V. /.i/i,iis, 2!t Ch. I). 584, where an action was brought by a life tenant 
 a>,'ainst trustees for improper investment ; the defence made was that the life 
 tenant had awiuiesced ; a motion to add the tenant in remainder, who had not 
 aaiuiesced, as co-plaintiff was refused ; but see Hnli' 445. 
 
 All ajiplication to add parties must be made ui>on notice 
 V. Oill„rl.\ :m \V. |{. 25!l : see notes to Hnlr 325. 
 
 Ri' Ciilhi'ch; Hull 
 
 a. 
 
 ^ 
 % 
 
 
 Adding Plaintiffs. The additimi of a plaintiff is subject to the provision of Adding 
 clause (/,) (if this Riilr, that the addition shall \w by his consent ; but if he con- plaintitT. 
 Wilts, tile additiini may be made against the wish of the otl'^ r plaintiffs if neces- 
 sary as wiiere the right of action has jiassed from the original plaintiff : Kmden 
 V. '.'nrli, 17 Ch. I). Kill : 2!) W. R. (iOti. 
 
358 
 
 Rule 324. 
 
 AddiiiR 
 plaititiiTH. 
 
 'T-' 
 
 Adding de- 
 fondants. 
 
 COMMENCtMENT OF ACTIONS. 
 
 Wlicrt' a piirty hroiixlit an iiction in liis own name instead of in tlic nanif (if 
 the person in wliom tlic It'fjal title of tile property to lie reiMivered was vested, 
 an amendment was allowed addinjfsiieli party ; Mr<liiin v. /''. lidh, ~ (]. L, T 
 150, \Vnh-otl V. I.Hiiiis, 2!)Cli. ]). r)S4 : and mpo Ai/Kroiij//i v. Jlu/hn; 41 ("li. J). 341, 
 
 In l)c Iliiii V, Stcri'iiH'in, 1 (}. H. 1). 313, one of the several co-owners nf a 
 ship, sued for freii,'ht dues ; the defendant ajiplied to add tiie otiier cn-owncrs 
 as ]>laintitfs, (xnifessedly in onler to obtain the lienetit f)f their lialiility for 
 costs. Tlie application was refused, on the },'round tluit it was not siiown that 
 the jiresence of the others was necessary in order to completi ly adjudicate uikhi 
 and settle the (|uestif<n arisin}^ in the action ; see also Jfurrj v. /)iin\i/, '2 (Mi. 1). 
 
 721, and Wdlcntl v. Lii<i)i, xn/ji'd. 
 
 * 
 
 In Luiii/ V. Cnin.i/i'!/, 13 Ch. ]). 38S, an .action was lir<>uf,'ht liy a tenant fur 
 life for s])ecific performaiice of an agreement, sijriied liy her "for myself and 
 thos<M'n titled after me," toaccci)t a lease of iico.al miiK'. After no*-ice of trialtlic 
 plaintiff died, and the persons entitled in remainder of whom he |daiiiti(f's 
 executor was one, wishing to adojjt the suit, were, at their rei est, added a.s 
 plaintiffs, at the trial. The (piestion whether the action would iievertlieless 
 fail was not considered liy the Court. Kry, .(., said, " 1 think that at present 
 I have nothing to do with that. The object of the provision «as, lujt tiiat a 
 party's case should he framed so as to succeed, h\it that it can l)e adjudicated 
 on by the C!ourt, whether in his favoiu' or against him." 
 
 In ('iiri)iiii-h' V. iiriij'riiiii, \V. N. lH7(i, 22, the action was by a sln']iowiiiT 
 against consignees of the cargo for demurrage, and a counter-claim was put in 
 for dauuige to the cargo. Leavi* was refused to the jdaintiif to add as eo-iilain- 
 tilfs the other owners (|)eidiaps because they did not ccaisent), tiiough it was 
 admitted to be hard that the jdaintiff should have t(j meet tlu^ counter-dani 
 alone if others were Liable as nitich as he. 
 
 In llrck V. I>e<t,\ \V. N. 1S7(>, 40 ; 2 Charl. Ch. Ca. 2.'), the ad(lition of a plain- 
 tiff was refused where the object was to bi'ing a coimter-claini against liiin. 
 See also liniik nf ('niiiiiinrr v. littiik nf 11. X. Anu'riru, 10 P. ]{. ITiS ; ,Vi,///.v v. 
 Beazle/i, 2 C. V. D. 80. 
 
 See also .sVwi;- v. Lttwsati, H't Ch. D. 121, siijint, wherea plaintiff was in effect 
 added on a defendant's application. 
 
 In Kiiidcn V. Carti', 17 Ch. 1). lO'.t, a trustee of a bankrniitidaintilf was added 
 as a plaintiff, and the conduct of the action given to him on his own applira- 
 tion, he alleging that the interest in the action passed from the i)l;i"u'i*f t- .ii'>;, 
 A similar order was made in Jiird v. Mittlhcws, 4(1 L. T. N. >S. ."^•' ■■!•:'.,; 
 WoiHlinird V. Shii-hls, 32 C. 1'. 282, and notes to Riilr (;22. 
 
 In Hdiflur \. ('(iiijiiT, 2 Ont. 308, where the e(piitable owner of i •.; ■;. ' in 
 res|)ect of a right of way of necessity implie(l by a grant of Lii-i, .. ^ i>sr- 
 mitted to make the owner of the legal estate a co-jihiintitf by ;i,!!i( ui' i at 
 the heaving. 
 
 Adding Defendants. Whether a defendant will be added or not nimn a 
 defendant's ai)|)lication, depends upon whether the adjudication upmi and 
 settling of the (juestions arising in the action requires tlie presence i if tile 
 person proposed to be added: /Idrrif \. JJaivi/, 2 Ch. 1). 721. In general a 
 defendant will not be abided against the jilaintiff's will, unless in the langiia},'!' 
 of clanse ((() his presence is necessary to enable the Court to etfeetualiy and 
 comi)letely settle all matters in ((uestion, and uidess the parties will be preju- 
 diced by his non-joinder : Lnluc v. Wnnl, ,54 L. 1'. N. S. 214. In Nurrh v, 
 lieaUri/^ 2 C P. I). 80, a (lefendant sought to add a person as a defendant. 
 The person sought to be added consented, and the object of the applicatinn w.is 
 to enable such per.son to st't up a counter-claim against the jdaintitf. The 
 [daintiff (d)jected, and it was held that this liiilr should not be made use of in 
 a manner harassing to plaintiffs, by forcing them to include in their action 
 persons ii,;/(n')i.<it ir/mm tfiri/ ilo ttot .seek tn jirncivtl, unless a strong case is made 
 out, showing that in the particular case justice camiot be done without the 
 jwrson l)eing brought in. Denman, J., there said, "we ought not toactupiin 
 it (the Rule) by adding a defendant without the ctmsent of the |)laintitf. except 
 in cases where it is clearly made out that it is necessary to do so." See aki 
 
ADDING I'AUTIES. 
 
 350 
 
 Ihaiji"/. lliiil'ii'lh 2.H Oil I) 414; where one excentor hmu^'lit an action for Ru]e 324. 
 fort'el().-nirc without joining eitlieras phiintitf or (lcfen(hint liis co-e.\eciitov who AddinRdo- 
 \\w\ nlwi'oiiiied to avoid proxecution for fraud : and TurotilnA- lldiitiltini, Niirii/ti.- fondants. 
 //./(( ('". V. Silmx, 12 l^. K. 022, .sii/mi, and Snniln-.s \. I'nh, 50 L. T. X. S. (i30 ; 
 ;<2 W. li. 4(12. 
 
 The luKhtion of a defendant contemplated hy this Unli', is not of a ])er.son 
 ai,'aiiii*t whom the original defendant may have a remedy ovc^r ; HivHI v. Jli ise, 
 11 P. li. 47 (an to which see Itxlr ,S2S) ; nor of a person claimed l)y a defendant 
 t() Ix^ Hiilile to the phiintitf instead of himself : l.i irnli'i/ v. //iirri.'niii, \V. N. 
 187(;, 3'J; 2 Charl. Ch. (.'a. 2(1 ; Lorr// v. Ilnlhiml, W. X. 187(1, 58 ; 2 riiarl. Oh. 
 Ca. 2(1. In sucii case the defendant can (hfeiul himself witiiout tht^ pn^sence 
 of till' ether party ; and if the plaintiff does not proceed against tht^ other 
 |)rtrty, tile defendant is not injured. 
 
 In lUiriir V. /iidii'ii, 22 <^. 15. I). (157, lessors sued the son of the lessee wlio 
 was entitled to the term, sul).ject to a suh-lease to 1)., for damages for breach 
 of covenant c:iused liy dilapiilations made hy 1). I'nder the terms of the sub- 
 lease to 1). (who was brought in under a third party notice) it was doubtful 
 whether lie was liable to indemnifj' the defendant, or only the e.\ecutors of thu 
 decease,! lessee. On defendajit's ai>plication, tiie plaintiffs not objecting, the 
 executors were added as defeiiflants to enable them to get indemnity from 1)., 
 and 1). was held not entitled to object tliough tiie eas»' niigiit be different if 
 plaintilfs objected. 
 
 In /'"'/ v. /i(i'/i/iffi', 24 \V. K. 844, an admiiiistiation suit, where th(^ plain- 
 tiff's tith' as a beneficiary under a will was doubtful, and the trustee under the 
 will was the only defendant, tiie beneficiary interested in disputing the plain- 
 tiff's claim was added. 
 
 In Anhlci/ V. Tiijilor, lOCii. J). 7<1H, a defendant died, and the cause of action 
 alleRed in the claim did not survive. ITpon the plaintiff's niotion, alleging 
 further faurs which shewed a cause of action which di<l .survive, the adminis- 
 trator of the decea.sed defendant was added. See also Rul< (122. 
 
 In lli'dd v. lioiiiiitin, !) P. K. 12, the olaintiff sued for damages caused by the 
 fliKiding of his lands by defendant's mill dam. The (1. W. Ry. Co. had turned 
 the waters of tiie stream into another channel, wiiich was not deep enougii to 
 '-•iitry off all the water if the defendant's dam were removed, so tiiat |>laintiff 
 could not obtain comiilfite relief by succeeding against the defendant. Liberty 
 wiis therefore given to add the Ry. Co. 
 
 Defendants might under the former Chancery ))ractice anrl probably may 
 .still Ih' added aft(^r the judgment, for tile pur|H).se of a niotion for injunction to 
 pre.serve the subject of the suit : Vonnij v. Hiihii\ 2!t (ir. 4!t. 
 
 In K Hell ill:/ V. IIicf,:i, P. R. 518. an action against an assignee for the 
 hi'netit of creditors, claiming a lien on gtiofls taken by the assignee, certain 
 creditors claiming that they had a substantial interest in the subject of the 
 iictionwere on tlieir own ajijilication, added a.s defendants. 
 
 In l)i.rv. <;. \\\ !{,,. t;„., 34 W. R. 712; W. N. 188(1, l.SO; 54 L. T. X. S. 
 H3(); ^K)]j. .1. Chy. 7!I7, the defendant Comiian^y covenanted .sepai'ately with 
 the iilainfiff and two other covenantees by one indenture. The plaintiff sued 
 for specific perfonnance of the covenant without joining the .separate coveiiin- 
 tees. Tliey were added on the application of the Company. 
 
 .\n officer of a corporation cannot be added merely for the purpose of dis- 
 covery: Wils,,,! v. ('liKrrli, !) Cii. I). 552. See notes to Rule^W. 
 
 In Kiiin V. I'lidLhi, (1 Oil. 1). 1(10, a iierson to wiiom the defendant had 
 assigned imii/i'ii/r life wns added at the trial at his own reijuest. Where plain- 
 tiff hiul assigiieil his interest before suit it was doulited whetiier it was proper 
 to allow the assignee to be added as plaintiff : /''<«/,-,• v. \V<u-<l, <) L. R. Ir. 447. 
 
 In Mtil/di/ V. hilhi/, 20 W. K. 127, it was held that per.sons, not (larties, made 
 <lefeiulants to a counter-claim and wishing to interrogate the plaintiff, siiould 
 apply under this Rii/e to be made defendants to the original action. 
 
 is, 
 
 % 
 
 
 ;,.-^gJi; 
 
I 
 
 360 
 
 COMMENCRMENT OF ACTIONS. 
 
 Rule 324. 
 
 Adding ii 
 dufeiidaiit 
 at his own 
 inHtnuce. 
 
 Coiiseiit of 
 person 
 added as 
 plaintiff. 
 
 fu /{ewM V. Ileim; IIP. R. 47, it was lield that the fivctHflid not nIiow •avvm- 
 for adding a defendant hut rather for service of a notic^e under liitiv ,'W!) claim- 
 ing indemnity. 
 
 Cases have arisen in whidi a tiiird party has apjilied for leave to come in a.s a 
 (h^fendant. For such a case no express |)rovision is made. In .l/iV/.v v. (IriJHlli, 
 4.5 L. .1. t^. H. 771, an action of ejectment was hroiight by a lessor airninst n 
 lesssee who had incvu'red a forfeiture. On motion of a mort|,'af,'ee of the 
 lessee to he a<lded as a defendant, the Court refused to make an order, holding,' 
 that the (|nestit)ns involved in the action were wlutlly on the coveniiut lietwccn 
 the lessee and lessor. In Wi/san v. Chinrli, !t Ch. 1). i)'>'2, a reiiresentativc 
 action, a i)ond-holder who had a .sul)stantial iiiterest and disjmted the plaintiff's 
 contention, was, on his own application, ii^lded as a defendant. Si'c a,\»n 
 Wa/miii V. (.'(//•(■, and Kiiia v. Riidklii, xiijini, p. 3.')!). 
 
 In Viirdsaeiir v. h'rii/ip. '27 W. II. 17<>, a foreifjn sovereijrn (the Mikiuld,) 
 a|)plied and wp . added as a defendant in order to enahle him to ajiply to dis- 
 solve an injunction. 
 
 In Fi'i-ri.s V. Fenix, i» P. K. 443, an action was hroiij^lit hy a fatliei-. to recover 
 arrears under an aiuuiity deed against his son who had al>sconded. 'i'lie son's 
 wife had barred her d(»wer by the annuity deed and had brought a suit against 
 her husband for alimony. She now a)>plied to be let in to defend this action 
 on the ground that it was c^oUusively brought to defeat her suit for aliiiiony, 
 and defraud he" of dower. She was let in to dispute the amount (claimed. 
 
 Th(i consent referredtoinchm.se (/') must be i)rov(^d .• Tiinidiinil \ Fi'nrim, 
 li7 W. R. 3!l(i ; Mii.soh v. Umiis, Ih., 7<X) ; b\it before i\u: prt^sent /'"/'■ it iieeii not 
 have been in writing. It was sufficient if the .solicitor for the existing jilaintiff 
 stated that he was authorized to consent on liehalf of the new plaintiff, the solici- 
 tor taking the ordinary res|M)nsil)ility of usinga plaintiff's name : ''"'■ v. James, 
 1!) Ch. \). .W. The pre.seut Rule makes a change in the i)ractice and requiiw 
 the consent to be in wi'iting. Th(! objection that there is no consent of a plain- 
 tiff sought to be added may lie taken by defendant : Tiirt/Kdiii/ v. Fin run, .■ni/ira : 
 see also .liickHoH v. I< riii/ii; 54 L. •\. <). B. 44() ; 7t2 L. '('. N. S. IKJL' ; Tnion v. 
 XiltinlM/ I', -IIP. 1(1 (I H.' 1). (i7K. 
 
 The case of tru.st€!e and re.stiii r/iif (rust w no exception to this provision, the 
 trustee's consent will be retpiired in order to make him a co-iilaintiff on the 
 ap)>lication of his ri-stia't/iii' trust : licsli'n v. Bcslri/, 37 Ch. I). (i4S ; so also where 
 an assignf^e for the benefit of creditors was sought to be added as a iilaintiff in 
 an action by a creditcn* co set aside a fraudulent conveyance : /!<ni/: nf l.midm 
 v. Wiilldre, 13 P. R. 17(i. 
 
 In Ihivhett v. (loixr, Ii Ch. I). 82, a Company was nnide, by mistake of law, a 
 defendant instead of a plaintiff. Time was given to obtain the consent of the 
 Company to be joined as co-plaintiffs : see also Mitsnu v. Harris, 11 Ch. I). !I7, 
 and Pcniler v. Liisin'ni/tnii, (» Ch. I). 7<>. Where a resolution of a Company liiul 
 been pas.sed that theComi)any's name should not be used in an action linmghthy 
 a shareholder for himself and als(» in the name of the Company against direc- 
 tors alleging misapplication of the funds, the Comi)any's name was struck out 
 as i)]aintiff, and leave was given to amend the writ by adding the Company as 
 defendants : Sillier Lii//it Co. v. Sillier, 12 Ch. I). 717. In Machiiiiijiill v. Utiriii- 
 Iter, 1 Ch. I). 13, '?'2, it was said that every litigation on a Company's heiialf 
 should l)e in the name of the Company if the Company really desires it. See 
 alsi) McUenrji v. Leiris, 25 So. Jour. 777. Where there is a fraud cominitted 
 l)y persons who can connnand a inajority of votes, the majority may sue and 
 the Company need not lie plaintiff : see Alwoul v. Afcrri/wriit.'ier, L. H. 5 K(|. 
 4(i4 ; Menier'v. Hooper, L. R. i) Chy. 350; Masmi v. Harris, 11 Ch. U. H»7. 
 
 The consent mu.st be filed. 
 
 Mortgagees were made co-plaintiffs witii the mortgagor in (hiwlriih v, 
 Krenjli/n dial Co., W. N. 18S!(, 152, an action on covenants in a lease made by 
 V)oth mortgagor and mortgagees to defendants. 
 
 Ah to when mortgagees are necessary parties: see Saylor v. Cnn/ier, 2 Ont. 
 3!tH ; Re Niekle v. Wulkerton, 11 Ont A?», and Pliitt v. O. T. Rii. Co., Ih. 24<i. 
 
AUDING I'AUTIKS. 
 
 86 1 
 
 Jfswl, M.F!., ill l)iirkrtt v. (Jorci, 25 W. K. "iM, said : "An application to Rules 
 Ntrike out till' name of a person added as plaintiff without liis (uniscnt can only 328, 326. 
 Iiciimrle liy the person so added : " Imt where proeeedin^fs were instituted witli- 
 (lut the all 'I'irity of a Co. tliey were set aside at the instance of defendants : 
 see rv//)!' yy/vYn/( Ci,. v. F>nni, \V. N. IHSl, 23. 
 
 The aiitlidvity given by a married woman to a next friend to sue for her is 
 nut ailiit'iii'"'iit which can be filed : Rui/rr.s v. //urn, 2(1 W. I{. 4112. 
 For the manner of service of added parties : see Jiit/m H2<) and .'{27. 
 
 325* Any application to add, or strike out, or substitute 
 a plaintiif or defendant may be made to the Court or a 
 Judge at any time before trial by motion, or at the 
 trial of the action in a suiumary manner. J. A. Itule 
 104. 
 
 Tlicsanie as Kiiy. li. 1875, (). IC, r. 1 1 (1883, H. 131). 
 
 .\ii applieatioii to add or strike out parties should lie made promptly : 
 SMkiii v. (hriit /uis/cni lii/. <'i)., l()('li. I). 5!l ; M'/Z/imiin v. Amln irs, \V. N. 
 187"), 'IM; 1 (,'iiarl. V\\. Vn. ()0 ; Vdlinicr y. /Ii,;iii,i;//i(im, v/r., 2 Cli. I). 3(;<.». 
 It may 1h' after delivery of statement of claim : Arioii, 2 Charl. Ch. Ca. 25 ; or 
 iit the trial, even during' examination of witnesses : liiiKtiDi v. Tahin, W. N. 
 ]m\ l!l : Kiiii) V. Riiilkin, (> Cli. D. 1(!(> ; Hniinr I'lDiHrti/ (''> v. N. I>. //ornnidll 
 ('"., 2!tCli. J). lilO; h'itndu v. (iiiudii, 30 Cli. I). 57 ; thdugli it may under the 
 circumstances lie then t(K) late : XiM'k /iijilnsirex Co. v. Jnntf, 28 W. H. (i,53 ; 
 cir in some cases after jiidpnient if the party to l)e added drjes not object : see 
 Re iVdsiiii, Ttiniir v. MtiKoti, VV. X, 1883, 134, 147; xal (/iKirr, see Himtl v. 
 Huriiimnll, W. X. 1883, 173 and 1(14, and J/i(,s( v. J/nrxf, 21 Ch. I). 278, 28',». 
 Where it hecoiiies iiecc^ssary to enforce ji judgment against i)ersons who accpiired 
 title after it was iiiiwle, an action must lie brought : Attiirvcii-iii lu ml v. Vonncil 
 iif Birmiiniliiiiii, 15 Ch. 1). 423. lint see cases under Rii/r 4'2',i, and Moniaii v. 
 i)iui, Daii. I'r. 5tli Kd. 4(13 note {<>), and CitmiMI v. Huhilnml, 7 Ch. I). KW. 
 
 The aiiplication is made in Chambers : see Wi/xaii v. ('hinrli, !l Ch. 1). 5.52 ; 
 and on notice : Tildeub'H v. H<ir/n'i; 3 Ch. I). 277 ; Jif Citlhtck, l/all v. Colliick, 
 lit) W. H. 25!t ; but an order uini has under peculiar circumstances been made 
 IT /iiirlr, to become alisolute unless moved against within a time named in the 
 order: Rt Wurtlni, 4 Ch. 1). 180 ; WiUim v. Church, .iitjira. 
 
 The order, whether for adding, striking out, or substituting parties, is in the 
 discretion of the Judge : and after trial it was held too late to add new 
 iiliuiitiffs and make a new case: New Wcstniinntcr Jinicini/ Co. v. J/aiin(th,24. 
 W. R. Silil. 
 
 How npi)li- 
 eiition is t(v 
 be uiade. 
 
 330. Where a defendant is added [or substituted], unless Aniended 
 otherwiKo ordered by the Court or Judge, the plaintiff shall uew uefen^ 
 biie out an amended writ of summons, and serve the new'^'^"*'^'*''®*- 
 defendant with such writ, or notice in lieu of service there- 
 of, in the same manner as original defendants are served. 
 J. A. Paiki 105. 
 
 Original Hi'lr 105 was identical with Kng. R. 1875, (). l(i. r. 15. The words 
 in brackets which were not in the original Ri(/r are taken from Eng. Rule 
 11W3 H. 135, which is to the same effect as the present /tu/r. Where the 
 lierson added is out of the jurisdiction, the writ if originally issued ff)r service 
 within the jurisdiction, should bef.ire service be amended according to the 
 form for service out of the jurisdiction : Kf-nti- v. PhiUip.i, W. X. 1878, 
 1S8. The directions for service of the writ < ii new defendants do not meet the 
 case of consolidated actions : Re Worthy, Cit//ei/ v. Wort/ei/, 4 Ch. ]>. 180, 
 wliere the defendants were added to the consolidated action without service of 
 any writ lieing required. ... 
 
1 ' ii ■ v' 
 
 
 , 
 
 
 802 
 
 COMMKNCKMKNT OF ACTIONS. 
 
 Rules Where a sole iiluintifF (lie(l after delivery of Htivtmnent of I'liiiin and iiis 
 
 327,328. exee.iitoi's tonic out the ciiinnKili orfler to revive, copiex of the writ, order Id 
 revive and order adding' n defi'iidaiit wi re flirected to he served on tlic iiddiil 
 defendant: Ai'xtin v. fllr<l, \V. N. IHSI, 12!t; 17 C. L. .I.;i(>.5. 
 
 '"« 
 
 •< 
 
 
 1 
 
 
 
 
 1* 
 
 t 
 
 .& 
 
 ^ /J/J - 
 
 Anien.ied 337. If a Statement of claim has been delivered pre- 
 of oiaiiu. viously to such defendant being added, tlie same slialj, 
 unless otherwise ordered by tlio Court or Judi:!e, bo 
 amended in such manner as the making of the new 
 defendant a party may render desirable ; and a copy of the 
 amended statement of claim shall be delivered to Uie new- 
 defendant at the time when he is served with the writ of 
 simimons or notice, or afterwards within 4 days after his 
 appearance, J. A. Rule lOfi. 
 
 Same as the Kn^'. H. ISTn, (). 10, r. 10. 
 
 <!ontrii)n- HHH. Where a defendant is, or claims to be, entitled 
 <ieninity" to Contribution or indemnity, or any other remedy or 
 liofomiants relief o\er against any other person, or where from any 
 '";"'? ".V'"'" other cause it apiiears to the Court or a Judge that a nues- 
 tion in the action (a) should be determined, not only as 
 between the plaintiff and defendant, but as between the 
 plaintiff, defendant and any other person, or between any 
 or either of them, the Court or a Judge may on notice {h) 
 being given to such last-mentioned person make such order 
 as may be proper for having the question so determined. 
 J. A. Rule 107. 
 
 Identical with En^'. R. 187;"), (). 10, r. 17. 
 
 This Bi'/f, with the next six Bn/fn, j)r()vidp machinery for priviiip effect t(i 
 sec. .52. sub-s. 1 of the Ac 
 
 (a) " Question in the action ; " as to the meaninjf of these words, see HoncrV 
 V. LniKfon Wiiicral Oiiiniliits Co., 2 Kx. I). 305 ; 4t) L. J. Kx. 7<M> ; and Rire\. 
 Al/ioiicr, itr., i.-dsCo., 12 L. R. Ir. 172. 
 
 (b) This notice refers not to notice of a motion contemi)lated by /InleSSOior 
 leave to brinj,' in a third |)arty, but to a notice (eorrespondinj,' to that prescribed 
 by Hiilf 32!) in cases of contribution, etc.), for the service of whieii leave is 
 obtained on the ai)plic!ition under Rii/c 330. 
 
 By Riilcfi ,301 and 302 idaintiffsare given the fullest liberty to join iis defend- 
 ants all persons against whom, jointly, severally, or in the alternative, they 
 may jointly, severally, or in the alternative claim relief. By .sec. 02 of the Act, 
 in furtherance of one of the nuiin objects of the Legislature, namely, to have 
 the chiims of all persons interested in the subject of the litigation disposed of 
 in the same action, a further and entirely new jiu'isdiction is conferred uiKin 
 the Court. By that section a defendant to an action may obtain (1) mminsl <i 
 pi a i II titf -Ally relief that niiglit be granted in an independt^nt suit by tiie same 
 defendant against the same plaintiff ; (2) loiaiiixi (") " cD-dvfniilinif, or (M ((".'/ 
 other prison— imy relief relating to or in ccmnection with the original siiliit-i,t 
 of litigation which might be granted in an independent suit by such defendant 
 against such co-defendant or other ))erson. 
 
 The mode in which a def(^ndant may obtain the relief above mentioned 
 r.g'ainst a i)laintitf is l)y counter-claim, and is treated of hereafter : RiiknTA 
 
 Third 
 
 parties. 
 
THIRD PAIITIKS. 
 
 ,( ,OT^. ; l)iit till' K'li'-i lit in'c-iiiit fraiiit'il do iidt jirovid.' iM-aiiH ti> ciiaWli' tlic 
 (!mirts til jrivi' 11 (ii'ft 'idniit tlu' fidl ln'iii'lit of tlif rem liiiMK iirovisioiis of the 
 aliovc strtidii. 
 
 I!v II I'Diiiitri'-claiiii, to a I'crtain fxtciit conipli't ■ rt-licf niay lir otitaiiii'd 
 iWiiiiist iic'i-di'fcndaiit, or a tliird pi'iMoii not oriv,'iii;dly a |piiit\' : IO'Iih ',\~;\ iiiul 
 :)7,"i ; liuf III) ('ii\itit<'ri'liiiiii can bf set ii|> wliii'h doi's not sri-U icliff a|,'aiiiMt a 
 iiliiiiititf : >ii' notes to Unli \Vt'.\ ; and no mode of ohtainiii^', as of ri>.dit, actual 
 iin'.scnt relief was intended to he provided liy tlie I'liif^lisli Itiiles (tliouKli it 
 may 1"' ilitfereiit in Ontario), in those cases in wliidi ailefendiint claims relief 
 ajjiiiiist iK'iiiiefeiidant ora third party, independently of the plaintiff. /////(.< 
 wtTi' framed (and have been ad iptcd snlistaiitially in Ontario) enaMinj,' ii 
 ili'fi'iiiiaiit to liriiiy in tliird persons, not already parties to the action, lint inter- 
 i'<t('il ill the suliject of lilit,'atii)n ; lint all that was intended to lie secured was 
 a liiiiiliii),' ilei'ision, with a view to future relief a),'aiiist such tliird party in a 
 >iiilHi>(|iieiit independent action. This limited effect was j;iven to the Kn^'lish 
 Iiiiirs ilesiu'iieillv. Their scope and intention were discussed in Trihmi v. 
 /im,«. i:i Ii. .1. riiy. 118; 1 (Mi. I). 17(1. There Mellish, I...I., said : '-The 
 iiii'aiiiiii; of sec. •J4, sulis. .'{ "' (K. S. O. 1HS7, c. 44 sec. oli, snli-s. 7), "was 
 oari'fiilly ciiiisiilered liy the .Indies. We came to the (Minclnsion that it was 
 not ailvisiilile to iiialve any Kiiles which would enable one defendant to obtain 
 ii'licf Mjrainst his co-defendant without an iiidepenilent action ajjainst him. 
 We (•iiiisidered that we had power to <lo so, but tliouKht that it would Im' iiiad- 
 visiilile that a plaintiif who nii>,'ht have a ),'i»>d case against an oii^final defeii- 
 ilant sliiiiilil be (•onipelled to wait for his remedy while the defendants were 
 tiiihtiiii,' /"^ '■ ■•<'•. The only object of the Jliilt:: was to bind the third party 
 cmiLlusively, by the jud.yment driven as between the plaintiff and the orii^dnal 
 ilcft'liiliiiit, but if he wants to ^'et an indeinnity or other relief a},''ainst the third 
 party, lie iiuist brinK an action of his own.'" 
 
 To the same effect are U'uriirr v. 'J'iriin'iii/,'2-i W. H. oHd, and .I/ckv/z/cs v. 
 rimiiws, W. X. 187."), 20;{ ; I Char). Cli. Ca. (io ; I'ldln-iik v. S,;,lt, 2 Cli. I). 7;<C> ; 
 ,SWM,,W-/v.«((f/, 44 L.T.N. S. 142; 17 f'. L. .1. :{(!,S; ,S(I \V. 1{. 420; and this view 
 sfciiis til have been ajiproved in Ontario in Ihtudmi v. <ii/iii<iiir, 2 Out. 4()l>, to 
 till' extent at least that after a jndj,'nieiit disposin;,' of the |)laiiitilf, the other 
 parties may not further litiifiiti' in the action between themselves so as to pre- 
 vent the plaintiff's jnd^fmcut from beiii^ entered. See also /,'/<■//'' v. Tiiniiiiil, 
 "lOiit. ri2., where in cases of "indemnity, etc.," it .seems to be decided that a 
 "eiiivrivte action is necessary to obtain tlie indemnity, followiin,' Tri'/rrrti v. 
 Hriiii, .siijirii. Ill lliiiiilin V. <'<tri/iri//,H {}, ]{, I). ;<2!t, more fully reported, 4.1 
 L. T. N. S. 781, after the (piestions between jilaintiff and defendant had been 
 iricil |)leailiiij,'s were in the same action delivered between the defendant and 
 third iiarty, and the liability of the latter to indemnify the defendant was 
 iletcniiiiied. There are also expressions of opinion in several other ca.ses that 
 the yii(/i'.< have a wider scopv' : see //orcvV/ v. The LuikIiui (<'rii, Oiiniihiis t'li., 2 
 Kx.I).:<74 ; rill' Ciir/shiini, 5 P. 1). :(5, 5!) anil (i2. Sec also linf/rr v. But/rr, 14 
 Ch. 1). ;{2!) ; Sun/,;' v. Snwi/cr. W. X. 1K88, 181 and 212 ; the issue directed to 
 lietrieil in nui/ni v. Kiisdw, 11 Ch. 1). ;{!I2 ; I'lllcf v. J{iih,'rh,2: Ch. 1). 1!»8 ; 
 and Miiiciili',' v. /!«//, 8 (.^ M. 1). 7(10; S/rH v. />/>»//, 28 W. i{. 7iM). In 
 .VmW,< v. ''i(7,/»(/((/c, 4 Out. 317, it was laid down that these later cases show 
 the practice to be, to .settle the rights between the defendants and third party 
 in the same action in which the tliird liarty has been notified ; and relief wiv.s 
 iwcordiutfly yivento the defendant to the extent of jirotecting him ajjainst the 
 lilaintitf's demand. 
 
 Tlic Kiisdisli Con. Rules of 1883 exjiressly enable judgment to be given 
 against the third party (.see Rule 184) ; but tlie scope of the third party pro- 
 cedure is cmitiiie!! to cases of contribution or indemnitv oidv : see /'mi/ifcx v. 
 /■I"'"/, 12 (^ B. 1). l,-)2 ; Sii,„/n-s v. iWI,; 32 W. R. 4(12 ; Iji) L. T. N. S. (J3(> ; 
 ''itttdit v. lifiini'tl, 2() Ch. 1). 1()1, and shown to be such by contract exi»ress or 
 implied, nut merely a claim to relief over ; Siiellcr v. Ilristol Steam Nan'i/d/iini 
 '-'»., 13 (.j. H. I). !)(i; see also /Siniiiiii/hinii etc. Co. v. Li)ii<l"ii <(• .V. If. R)/. Cn., 
 •MCh. 1). 2(i! ; Trittim v. Hankart, m VV. R. 474 ; ■1() L. T. N. S. 30(1 ; 5(1 L. J. 
 Uiy.iyi); <;iisfor\: ChitpiiKf,,, W. X. 1884, 31 ; (Hnurexlerxhire v. /'/iil/ip/i.% 32 
 W.R. 522; 12 <^ B. D. .53;}; Johnslmi v. Sulvwjc Aamicuitiim, 1!» q. B. D. 4.')8 ; 
 '«'■'/(«/•-■ v. .V. /.;. K,i, r,,., 2!) Ch. D. 344. 
 
 863 
 
 Rule 338. 
 
 ''•liiril 
 partien. 
 
 Scope of 
 the lUiUx. 
 
Rule 323, 
 
 CaHUH of 
 I'lintrilm- 
 tiiin or HI 
 iluiiinitv. 
 
 < OMMKNCEMKNT OF ACTIONS. 
 
 '5i' 
 
 i I 
 
 Two I'liw.st'M of caw'-t ill which a third |part,v iiiiiy lir lircni^^ht in, mv |>riivii|)'i| 
 fur l),v thf Oiitiii'io Hulls. 
 
 (1) Whi-rc a (l<'f('ii(liiiit is, or chiiiiis to lie, cntitlfd to coiitiilnitidn uiiij 
 iiiilfiiiiiitv, or iiiiv othi'r relief over, aKaiiist any otiicr person: /^(/» M'.'M, ti^t 
 part 
 
 'riiese are tlie ("l><es of tile liio-it. fre<|Ment ocCMiri'ence, ami examples of tlicin 
 will lie foinnl ill the forms of the lloti(M' rei|iiire(l to he^jiveli to the tllilil partv 
 see A|i|ieil(liN l''orill No. 1H. 
 
 The moile of procedure is provided i)y Itnlfx 'XIW, 'XW and H.'tJ, tiiki'ii 
 
 ■ hittff limy 
 
 fendani wlm scivcl 
 
 ■ decision : /,'/(/( ;t;)j, If 
 
 .,.., ry ....,1,.. call he (lone in respei^t of thi' cluiiii tu 
 
 <lilectioiis must lie olitailied as to the extent to wliicli, mid 
 the mode in which, the claim is to lie determined : Itidr 'XVI. 
 
 and examples i 
 'K'iveii to the thill 
 
 , . . is provided liy llnh'n H2!>, XM and 
 
 ti'Kcther. I )efeiidaiit serves a notice Oil a third party; Ihi'i XiW, th 
 appear, if he resists the plaintiffs claim as a},Minst the defe 
 the notice. If he does not appear he is iHiiind liy tlit 
 he appears, liefore anvtliiiif,' further can he di 
 coiitrihutioii, etc, 
 
 ('oiiinion 
 " quostiun 
 in the 
 action." 
 
 1I|I IIIIMI1 III tt lll< llf IIII I 1(111(1 l<-^ \\ I 111 111 I1||lllll< <■ . ■)">• •*(■*.• 
 
 The claim whi<'li the defendant has a^'ainst the third party, need nut liidili'ii- 
 
 tical or oii-e\l,eiisive «itli the plaintiff's clnini against the defendant liiiiisilf. 
 
 'I'lie oliject of the //((/r.v is that " if there is a sniistanti.al (piestidii wliicli iiiiiv 
 
 he determined ill the action, not only lietween the plaint itf antl the defendant, 
 
 lilt also lietween the defendant and a third party, then that cpiestioii is iidt td 
 
 le tried twice over,'" //cc .lessel. M.!,'., in Sli'iiiisfii S/ii/i/iiiiil Ci. v. /tuiirnii, \'> 
 
 li.d. <,l. 15. (ilO; ill such a case the third person " is to he cited to take part 
 .. >i :,.;., ..I lu:, ..,>:... i .... >.. i... i i i... ti... ,i...,:„i.., i,.,> •:.... 
 
 part 
 on that i|iii'.sti(iii 
 
 . II. II fi' , III .'^iiv 1 1 It I ii'vi ' I III' I II 1 1 1 1 I >• i .i< 111 1.1 III I II I 
 ill the oriuinal litigation, and so to he lionnd liv the decisioi 
 once for all:" N. ''. 1. (^ H. I). (.4!). 
 
 " 'I'he ohject of the Act was ii<it only to pieveiit the same <|Uestioii lii'iiii,' 
 liti^fated twice, hut to ohviate the scandal which soiiietinies aro.se hy the siiiiu' 
 cpiestion lieinj,'' (lifrei'ciitlv decided hv ditfereiit juries "" : /lin'clo' v. Fru.sl, 1 
 (/. H. I). 4l'2, /iir lilackhnrii, L.J. ; m'h: also AV Cn/lir, U Oh. I). :>\. 
 
 A rii,''ht to indemnity .'irisinj,' after actioji l>roii(,'ht, entitles a defendant tu 
 notify a third party ; AV/'v-i// .(• Sir ni ('". v. Ilnlhtud, 'X\ ( Mi. I), till. 
 
 The third p;irties c:in only he joined hi'fore trial : l.ifhif v. Ti innnil. JOnt. 
 .V_', and will not he allowe(l to hi' hroiii,dit in, if the plaintiff will lie preiudiccd ; 
 /{■iirrr V. Ilinllrii, 1 (;. H. I). (i,-,2 ; !!>■ IV///-7/ IVjl. < '„. v. //iiin:s. 111 Oli, 1). 
 4S!I; see also ,SVro/.sr((, <7c., v. Ihnicdii, 1 i}. ]\. I). ()48-i», and Iti'l.XX',; lliilrhi- 
 sun V. Cull, mil,, Ciiilnl Mliiiiiij ('„., W. N. 18.S4, 40. 
 
 Sec notes to Riilcx 'XIW, ;«1 and XVI. 
 
 ii'stl'iii III llie 
 miy iitlicr 
 
 (2) Where from any other cause, it is made to ajipear that a '/"'■• 
 iir/imi. shdiild lie dcftermincd lietween the plaintiff, (h'fendaiit, am: 
 jttTHon, or hetwepii any or eithca" of them; Riili' >V2H, last piiit. 
 
 The mode of |irocediiri' in these oases is provided hy /'/'/''.1 ;<2H, ;W() and 332 
 taken together. The defendant iiiiist olitain leave to hrinj,' in the tliiid party 
 hy iiKition under /lulr XV) ; when an order will he made for the .service (if tlii* 
 " notice " mentioned in A'/'/i' .S2H, last part. That order will contain all iiiw- 
 sary directions as to appearance and the effect of iion-apjiearance. If tliotliini 
 party appears further directions must he then ohtaiiied, under Riilr 3H2. 
 
 This class will C(im|ireliciid a ),'rea.t variety of cases in which the plaintiff uiiiv, 
 or may not, he interested, and it is therefore left (intirely to the t'liiirt (irailiulRt' 
 to direct what ])ersons shall he allowed to he notified, wdiat ([iiestions iiuiy lie 
 raised, and what iiroceedinj,'s shall he takeif ; Riih'XH), and to what extent thf 
 
 I,....,...l.f :.. ..I...II l„. I. .......I 1.. i:.,l.l.. . U,,l„ VIH . .11.. I ,',. i./,iiuirliirlllir 
 
 _ .1.11 1( iiif I II ii"im I ". V. 
 
 ('iille,, R'li. Cii'. V. Iliiiirs, ](i Ch. 1). 4S!). 
 
 A jMir.son cannot lie hroufjfht in as a third party hecause he is idlegwi tii 
 .. fi... i...<.i>i4..:..i *.i,.;>.f;4V ....^i f^... t-u.. ............. ..^ »n:..:*..^ i./.nitinu inr'ni 
 
 A jMir.son cannot lie hroufjrnt in as a ttiird party Decause lie is aiiegt-ii n 
 ))e the lieneticial jilaintiff, and for the jiiirpose of raising? e(Hiities agaiiLst liiii: 
 which do not attiMjh apiinst the ))laintiff : llinik nf ('iitiniu'rif v. Ilmili' "J H- •^' 
 .\iiii;iiii, 20 C. L. J. 130 ; 4 C. L. T. 200 ; and sel' Jitrh^'in v. Kiivjcr, in luitt 
 hi Rill I- -.VIA. 
 

 1 ^ i^i 
 
 THIRD PAUTIKH. 
 
 365 
 
 A tliiiil I'lU'ty <'in'""' '■""•'♦'■'■•'■I'l'i" 'WkiiiHt tlu« iiliviiititf ; Kill I \. I 
 •jX (111 I). MMH; 'iiinir, wlictlicr In- iiiiiv ccniiitiT cliiim uKuiiist tlif <l 
 "■ ■ ■ ('liy. :tH.|. 
 
 iWuK" u itiiiii til 
 
 'isiiii Hcrvcii with iiiiticfiif |irnc'('i 
 L'.if tlir Act : //'. 
 
 KlMU-tll, 
 etc., pill 
 
 titlti. 
 
 Wniriitilr Rule 329. 
 ■fi'iiilaiit 
 Willi lifiiik'-" lii'ii I" : I''- •^'^'< '"'^ ''• •' 
 
 A tliirii |iiirt\ im imt ;i |_ii 
 (li'liiiitiiin III' "(li'ffiiiiiint ' in sci 
 Sec iidtiH til Kiihi 'XVi anil .'W2. 
 
 Ill ll'(///«/' ' . linl/iiin-, 'I't W. H. ,")11. it wii.s lifld tliiit II tliiiil |iiirty liriiii«lit 
 ill iimliT A'"'' :il!H was nil', ciititlt'd iiiidfr that lliih tu iiavi' any iitlirr imtsuii, 
 iigiiiiiitwiiniii lie lias iclailii, addrd ; Imt in luni'li r \. /{ikhi/i, 'Mi \,. T. N. S, 21!l 
 W, N, 1H77 <W. tlif tliird |iaity a^'ain.st uIkhii iiidciniiity was claimed, whn 
 iilliiwcd midii' till' cDiicliidin^' words nf sec. "il', .^iili-.s. 7, "f the Act tn liriiif,' in 
 II fdiii'tli |iiu'ty, fi'iiiii wliinii 111' clainit'd iiidi'innitv iipmi the Naiiii' k>'<>ii>i<Ik ii|iun 
 wliicli it WHS clainit'd fniiii liilii. I'l'rliap.s the point cannot yet lie con.sidel'ed 
 iin Kcltli'd ; "ee ycf/.f/inr \i'iii/;iiiii Cii. v. Aiir/iiu-/ Ciiii/ Ti,., .'i (^, |{. | ). 2tW ; 
 iHiil ir/Mr</» V. Will,; W. N. 1H«0, \W. 
 
 Till' /^'/(.1 I'elatiliK to third party piiu'cdiire apply in an action of replevin : Ueplevln 
 Rridlh'!/ y.i'l"i/:r, I'.IC. L. .1, H(l ;' !l I'. |{. 4l<l. 
 
 Wlicrr a defendant inaken a claim auaiiiMt a co-defendant for indeinnity oi' 
 otiii'i' ii'liif, his proper coiir.se is to proceed under //»/( ',V2H, iind not liy 
 foiiiiter claiiii : A'c/'z/csv y. /laalh, | ('|i. I >. oHIi. 'I'lie (contrary ruliiit,' of \'.-('. 
 Hull ill Sih /i/iiin/ V. Ikinir, '1 ( Mi. I). 'I'SX (an earlier I'ase) has not heen followed, 
 and was siil):<e(pieiitly disapproved "f liy the same .liid),'e in llmiis y. (iniiililr, 
 (ICh. 1). 74S. The defendant may raise a (piestion against a co-defendant l>y 
 ■A plt'iuliiiK w hicli also states a defence against a plaini iff ; lint such iileadiiiK is 
 nut iii'iiiiiitei-claiin. and should not lie so entitled : /''»//('■« v. /inntJi, ,v 
 
 2» 
 
 Cliiinis 
 aKainst co- 
 ili'len- 
 ilaiits. 
 
 111/11(1. 
 
 JWOt Where a defenilant is entitled to contribution, Nofj*;''^'''!^ 
 indemnity, or other remedy or relief over against anyaivoaiu 
 person not a party to the action, he may (.r) serve a notice ''^*^;.'"*^'^^,^ 
 to that effect : 
 
 (a) A copy of such notice shall be filed with the proper 
 officer, and served on such person, according to the rules 
 relating to the service of writs of summons ; 
 
 (h) The notice shall state the nature and grounds of the 
 claim, and shall, unless otherwise ordered by the Court or 
 a Judge, be served within the time limited for delivering his 
 statement of defence ; 
 
 (c) Such notice may be in the form or to the effect of the 
 Form No. 18 in the Appendix, with such variations as cir- 
 cumstances may require and therewith shall be served a 
 copy of the statement of claim, or if there be no statement 
 of claim, then a copy of the writ of summons in the action. 
 •J. A. Rule 108. 
 
 ThJB is the same as the Enp. R. 1875, O. l(i, r. IH (see 1SH3 R. 170), except that 
 tlie latter reciuires the notice to lie Htaini)ed with the seal with which writs of 
 fiimmoiiH are sealed, and insiTtn at {■>:) the words " by the leave of the Court or 
 •liidge." 
 
 fhc right to indenniitv may have arisen either Inifore, or after, the com- 
 mence„u.nt of the action : KUhoii v. Holkind'SSCU. D. 4!)7 ; «ee alao Miso>i v. 
 Mlochoff, 30 W. 1{. 178. 
 
 
366 
 
 Rule 330. 
 
 Delivery of 
 l>li'artiiiK to 
 (■o-(lefcii- 
 ilaiit ill lion 
 of notice. 
 
 Sprvice of 
 mtice out 
 of jurisdic- 
 tion. 
 
 Court may 
 direct 
 notice to 
 be given. 
 
 COMMENCFIMENT OF ACTIONS. 
 
 I'lif notice referred to may )m' given witlioiit any leave beinjf first ol)tainf{l 
 and is eonfined to the first class of ca.ses mentioned in Rale 324 (.see notes to 
 tiiat It nil) ; namely, wiieve the defendaiit claims a remedy, or relief, over 
 a<,'ain.Ht a third party. 
 
 The En},'. Rules of lcSH3 make express provision (Rule 177) for serving a third 
 party not'- , where contribution, etc., is claimed from a person alreiuiy a|)artv 
 to the action. 
 
 I'nderthe Out. liiih'sthi.- procedure is different, ;;nd the notice, of wliicli 'lii' 
 form is t,'iven in tiie .Vppendix No. IS, need only he given where the tliird party 
 is not already a party to the cause. Where the relief over i-sclainied from aco- 
 defendant, notice is sufficiently given !)y delivering to such defendant a state- 
 ment of defence raising sucli claim : Furiifus v. /luol/i, 4 Cli. 1). t)Wt, An 
 order directing that such delivery shall l)e sufficient notice, was made in 
 Muriirr v. Jirifiht and Jiiii/n/ v. Kdntmi, 11 Ch. D. 3!(2, Init even in Knglaiid was 
 held inmecessary in /lulln- v. /Inlli-i; 14 Ch. 1). 32!), and Tmi'sc v. Liin'riil(ir,'£) 
 Cii. D. 7i'. Since the notice in-ovided hy this Jiulc may under the Oiitarii) 
 Hiili','< he given, witlicMt order, to a person not already a party, so v, here cuntri- 
 hution or otiier relief over is claimed from a party to the cause, the delivery tn 
 him of a jileadiiig claiming such relief is sutKcient notice of the cliiini witlumt 
 an order: .see lindc v. I'iUimni, 12 1'. R. (i(!2, and jf i(/t 370 in tlu^ ca.sr of a 
 counter-claim. 
 
 It will then be oi)eii to the l)arty .served to move to disch.arge the service, if 
 the case is not one of contriliution (jr indemnity within the Mules : s(h^ I'ofwv. 
 Lmrridfie, .su}ii'<i ; or when an aiiplication is made under Itule'Xi'l, for directidns 
 asito the proceedings upon such claim, he may i)erhai)s object to the claim beinjf 
 entertained : m'ti >Sehiieiil(7- v. /latt, H(l. 15. 1). 705: W'lie Vullei/ Jty. Ca. v. Ifmin, 
 KiCh. 1). 4.S!t. 
 
 A claim by a defendant against a co-(iefeudant for indemnity will not be tried 
 without an order under itule 332 providing for the determination of the claim 
 raised : Burke v. Pittmui, supra ; Vhtver v. Tmld, W. X. 1H84, 47. 
 
 The imicuringby a defendant of the pleadings ftf a co-defendant who claims 
 contribution, etc., from him does not operatic as a notice to the former ; iS'te(v. 
 Dixon, 28 VV. R. 7!Hi ; 42 L. T. N. K. 7(10. 
 
 The notice to the third party is to be servc^l according to the Rnles relatini,' 
 to the s'^rvice of writs of sunnnons. .Such notice may therefore be served out 
 of the juri.sdiction under RnleTiV: see notes to that Rnle and SiratiKia Shippmj 
 Co. V. Duiunn, 1 il B. D. (!44 ; Diihout v. Maetiherxoit, 23 ^>. 15. 1). 340. hi 
 .such case the time for appearance (eigiit days) mentioned in Rule .S31 will not 
 be sufficient, and in Swaiixca, etc. v. Duncan, Kuprn, this was used as an argu- 
 ment that the enactments as to notice to third persons were not intended to 
 apidy to persons out of the juri.sdiction. The answer given hy the Master of 
 the Rolls to this objection was, that the order giving Ic'ave to serve tlie 
 n(jtice (rtit of the jurisdiction is to name such a time for apjiearance as tiie 
 necessity of the case as to time and place requires : see Knglisli Order 11, R. 4 
 (18H3 R. (i8) and the. Rule allowing eight days only uuist be taken to be modi- 
 tied iiocordingly. That Rule has not been ad(,pted in the Oiilario Act, tmt;'ro- 
 l)ably Rule 27() wotjld be held in like manner to modify Rule 331. It would 
 be prudent to obtain leave to serve the persim out of the jurisdiction, instead 
 of merely applying under Rulr 274 to have the service, when effected, allowed. 
 
 :{<tO. Where, under Rule 328, it is made to appear to 
 the Court or a Judge, at any time before or at the trial, 
 that a question in the action should be determined, not 
 only as between the plaintiff and defendant, but as 
 between the plaintiff and defendant and any other per- 
 son, or between any or either of them, the Court or 
 Judge, before or at the time of making the order for having 
 
THIRD PARTIES. 
 
 367 
 
 Rule 331. 
 
 Notice ill 
 casus of 
 "coinuion 
 question." 
 
 siioh question determined, shall direct such notice to be 
 given by the plaintiif at such time and to such person and 
 ill sueli manner as may be thought proper ; and if made at 
 the trial, the Judi;e may iiostpone such trial as he may 
 tliiiik lit. J. A. llule lOi). 
 
 This llule is iilcuticiil with the Kiig. R. 1H7."), O. HJ, r. 1!(, and jn'cscrihi's 
 tht' |)r(H;('(lui'(' fur tlic scciukI of the two ohisscs of ciiscs nientioiit'd 'ii liuli' 32H, 
 ninw'ly, where a tiiird party is souglit to he l)r()Ught in for tiie (htermiiiation 
 of a (/III. v/ /"/I ill the (ictiiiii, not only as lietwi'en tlie plaintiff and defendant, lint 
 ius ijetwei'ii tile plaintiff and defendant and such tiiird person, or ijetweeii 
 any or eitiier of them. 
 
 In that case, Hitic 32!t does not apply, and therefon; it is necessary under 
 Riilr 3l'S, last i).i't, to apply for leave to serve notice on the third party. Tiiis 
 motion for leave will he made iiiChaiiihers on notice, not necessarily to the third 
 l)aity : see I'lvrsnti v. Lniir, W. N. 1875, 24H ; I'nrrir v. A/lm, 48 L. T. N. S. 
 4U4; W. N. 188,'i, X) ; hut notice to the iilaintiff will he projier : HV Vii//ii> 
 Ril. Co. v. y/('»v.s-, ]() Ch. I). 48!); Finlnii v. Scitt, W. .N. 1884, 8, thouKJi sc-e 
 Curric wAHiii, 48 \j. 'V. N. S. 4(14. If notice is not given to the plaintiff he may, 
 if hp considers himself prejudiced, ajiplv to discharge the order : see To/v/r v. 
 Alliii, 48 L. T. N. S. 4(i7-8; Tlw liiini'co, 8 P. I), ill; liut he (ioiild as con- 
 veniently takr any olijeetion he may have, on any motion for diri'ctions under 
 Huh ;B2. 
 
 Leave to give a notici' where necessary siioiild Ix^ promptly ap))lied for : 
 Ririiiimihuiii A- l)i.itrict Land Co. v. Limdiiii il' y. If. Ril. Co. M L. T. 
 N. S. 7<I2. 
 
 On the motion for such le.ive, the iiropriety of having the (piestion so tried 
 must 1«' "lUiule to ajipear,"' hut jirohahly it will he enough as (in Knglaiid)oii 
 an a|)|)licatioi' for leave to serve a motion claiming contrilnition or indemnity, 
 if a "plausilile" cv.se is niad<! out for serving the third party; see liiiiium \'. 
 (liMin, 4 Ex. I). 247, or that a "con. ,ii (piestion " is Ikdih Hile raised witluiut 
 ramsideriiig the validity of any claim which it may involve against the third 
 party: see Ciirnhnfc v. N. rJ. lii/., 2'.1 Ch. I). 'M4, leaving him to move to dis- ' 
 
 charge the service. If leave is granted, the order will ordinarily direct the 
 plaintiff: lliilr 3.30 ; Honir/I v. l.iitulon (.'nieml Omuihitu Co., 4(i L. .1. Kx. 7<M» ; 
 2 Ex. I). 3(!.5, to serve notice on the third party, and will |)rovide for the fonii 
 of notice, the mod(^ of servici', and the time for appeai-ance, or pleading, by 
 the third i)urtv, and iiiivotiiev directions that may be necessary : Hitcd v. Dixon, 
 42L.T. X. H. 7C.r): '.:8"\V. R. 7!m. 
 
 Where defendants tvished to raise, and to have decided, a question in the 
 action, jis between them and a co-(I(ffendaiit, they, instead of the plaintiff, 
 wert! allowed to serve a pleading on their co-defendant raising the (piestion: 
 Steel V. l)i.am, 42 L. T. N. S. Tdo ; 28 W. R. 7!t(). 
 
 This 7ii//( was apidied under comiilicatful circumstances in Brown v. ('uiixi- 
 imm, 11 P. R. ;$(13. See also linrke v. Pitttiutn, 12 P. R. ()G2. 
 
 331. If a person not a party to the action, who is served Appear- 
 as mentioned in Rule 329, desires to dispute the plaintiff's thi^dpaity. 
 claim in the action as against the defendant on whose . 
 behalf the notice has been given, he must enter an appear- 1" 
 ance in the action within 8 days from the service of the 
 notice ; in default of his so doing, he shall be deemed to 
 admit the "alidity of the judgment obtained against such 
 defendant, whether obtained by consent or otherwise ; pro- 
 vided always, that a person so served and failing to appear 
 
 
 ^^^ 
 
•368 
 
 COMMENCEMENT OF ACTIONS. 
 
 Rule 332. 
 
 Apjiuar- 
 
 H.I1(!C 1),V 
 
 third par 
 served 
 under Itn 
 
 within the said period of 8 days, may apply to the Court or 
 a Jiid{T;e for leave to appear, and such leave may be given 
 upon such terms, if any, as tiie Court or Judge shall think 
 fit. J. A. Kule 110. 
 
 Tliis /.'/'/'■ is idciiticiil witli Kiiff. H. 187"), ()., 1('» r. 20. It iipjilics imly u, 
 till' cascM of coutrilmtioii, etc., in uiiicli a notice under Hi'lr Hl'H liiis Uv]\ 
 Herved. 
 
 Ax totlie time for enterinf,' iii>i)e!irii,nce in tlie case of a tliird jtarty uiit of the 
 jurisdiction, see note tr) /tn/f 3L".». 
 
 Appearance indicates a desire " to dispute the plaintiflF's claim in the 
 /,' iu:t'\nn, (1.1 iii/diiint th( '/cfniildiit, on whosv l)enalf tlie notice luis lieen fjivcii": 
 
 I5.V non-apjiearance the third i>arty is taken to admit the validity of any jud);- 
 ment oi)tained ajfainst the defendant who liroiiffht him in, but it seems tluit no 
 acjtual relief can i)e olitained against him : see the form of notice in Appeii<iix, 
 No. IH; Tnhrn, v. Jiran, 4;") L. .F. Ohv. 113; 1 Ch. I). 170, and The Cnrtnimri^. 
 .5 W I). ;■)!». 
 
 The tliird i)arty may move to set aside the notice served ujuHi him : Rimch 
 V. Froxt, 1 il B. 'D. 4'2!t; llmrn- v. Hurtlni, II,. i,r>2; Hornrll v. LuiiiUm <lni. 
 ihimilinx Co., 2 Ex. I). 305. He shoidd not in such ciises, i)roperly siH'ukiiijf, 
 enter an appearance : see Uorwdl v. Lomlim (t'lriiral OmnihuK Co., 2 Ex. IJ. iit 
 p. 300 ; and Carrie \. Allni, 4H L. 'I'. X. S. 40(i ; hut it woidd seem tliat tlif 
 
 i)arty would not he |)rejudiced by appearing: Jifncrkr v. I'ront, 1 Q. I?. I). 421. 
 n England a conditional apjH'arance mav be entered : .see Eng. H. 1XS3, ]()(). 
 I'laiainit.1 V. K. Ihrrhiim, 47 L. 'V. X. S. A\V.) \ Nvhoii \. Poxtoriuo, 4!l L. T. N.S. 
 .'")(>4 ; for which, however, tiiere is no provision in Ontario. 
 
 Notice of an ai)plication to .s('t aside the notice must of course l)e given tn 
 the defendant who servt^l the notice, and may also i)roperly he given to tile 
 plaintiff, who is int.'rested in .seeing that no question is introduced into the 
 litigati(ni which mav prejudice him: .see Bomr x. Hartlcii, 1 (^. H. 1). 1102; 
 WiK Vitlhii li,i. Co. v. Hmvix, KiCh. 1). 48!) ; /Ji/Zr 333. 
 
 If the defendant who gave the notice cannot, from the nature of tlieca,''e, 
 become entitled to remedy or relief over against the third |)arty, the service 
 will be set aside : Jloriri/I v. London. (Icturitl Cmiiilmit Co., 2 I'A. D. .%">. 
 •See also Hiirni v. Dinrii, 2 Ch. 1). 721 ; /.'/<y v. Alliinici, dr., 12 L. R. 
 Ir. 172. 
 
 A married woman who has no separate estate cannot l)e brought in as a third 
 party: Jom.t v. Khiatiw, \V. X. 1884, .3!t ; Uloncr.itcrxhirr Jimikiiiji Co. v. 
 Phitli/,p.i, 12 t^ B. 1). 'iXi. 
 
 Where the third jiarty apjiears, nothing more can be done in regard to the 
 claim for contribution, without in application under Rii/c 31^2 for directions as 
 to siibse(|uent proceedings : .see Tin C(irtnliiirit ; SiCfiiixra v. iJntican : Ikufckt 
 V. Fro.it ; linrki \. I'ittiiiaii, xiijtrn. 
 
 Where the third party a|>pears, he mav be limited in the extent to which he 
 mav take i)art at the trial : /: irton v. Lo'ntloii .(• N. W. /in. Co., 38 Cli. I). 144; 
 liiinir v. /liyint, 37 W. H. .5!>2 ; 00 L. T. X. S. «>.51 ; or mav l)c jdlowed t( 
 actively assist in resisting the action : P(in.wn v. I^ine, W. Im. 187"), 24S. In 
 the latterca.se he may obtain discovery from the jiluintifT : AV/i » v. Wiitrdnli 
 ■ (No. 3) 35 Ch. J). 287 ; and the plaintiff may treat him as a defendant ami 
 obtain discovery from him : Mr AN inter v. Hinhop of Roehr.iter, 5 ('. I'. D. 1!'4 ; 
 Kfteii v. Weiiriliile (Xo. 2) 34 Ch. I). 223; see liriidleii v. Clark, in not<! t(i 
 Rule 488, 510; Filler v. Itnlrrtu, 21 Ch. D. 2«)1 ; llornlni v. Ciirdinll, 8^^. H.I). 
 329; and he may Ix- ordercfl to i)ay the costs : Kdisun v. llollond, 37 W. K. 
 O'.M). Qwvre, whether, after judgment, i)laintiff can amend and claim a" in- 
 junction against third party : Ih. 
 
 Direction^ i{Si!2. If a person not a party to the action served under 
 of deter- thesB Kules appears pursuant to the notice, the party givin" 
 
THIRD PARTIES. 
 
 369 
 
 oils 
 in action. 
 
 the costs of tlif ivction : Jidison v. Holland, 37 W. R. ()!!!• ; Jlm-nby v. Vardwel 
 
 4 
 
 the notice may apply to the Court or a Judge for directions Rule 332, 
 as to the mode of having the question in the action deter- questlo 
 mined ; 
 
 (fl) The Court or Judge, upon the hearing of such appli- 
 cation, may, if it shall appear desirable so to do, give to 
 the person so served liberty to defend the action upon such 
 terms as shall seem just, and may direct such pleadings to 
 be delivered, or such amendments in any pleadings to be 
 made, and generally may direct such proceedings to be 
 taken, and give such directions, as to the Court or Judge 
 shall appear proper for having the question most conveni- 
 ently determined, and with respect to the mode and extent 
 in or to which the person so served shall be bound or made 
 liable by the decision of the question, land as to the costs 
 of the proceedingsj . J. A. liule 111. 
 
 The words in brackets were inserted in consequence of the decision in York- 
 fkirc lI'm/'/OH <'timpiniij v. Newport, 5 (^. H. 1). 2(J8, tiiat the Court under the 
 Eng. R. of 1875 had no jurisdiction to imixwe any tenns as to costs. Hee 
 ToiiiliiiHdii V. Northern Ei/., 11 I*. K. 538, and otiier cases infra, p. 372. Other- 
 wise this is tlie same as I'hig. K. 1875, O. IG, r. 21, (1883, R. 175). 
 
 Where a third |)arty has apjieared the Court has^power to direct him to pa; 
 
 he costs of till 
 s (I B. 1). 32!l 
 
 hi either of tiie two chisses of cases mentioned in llnU- 328, before the trial 
 iif any issue raised against a third i)arty, whether a co-defendant or a stranger, 
 tan be had. the direction of the Court or Judge must be obtained under this 
 llule as to tile extent to which the (piestion is to be entertained in the action and 
 the imxle in wliich it is to be determined : Pillcr v. Roberts, 21 Ch. D. H(8 ; 
 Fhicer v. Todd, W. N. 1884, 47; Burke v. I'ittman, 12 P. R. ()t)2 ; Tritton v. 
 Mnkurt, 35 W. R. 474. 
 
 Thisapjilication in cases within Kale 32it is the first opportunity the plaintiff 
 lias of exaiiiiuiiig liow the introduction of the tliird party will affect him, and 
 notice of tiie motion raist of course be given to him : see Bower v. Hartley, 1 
 <| B. I). (152 ; Wite Valli'i/, etc. v. JlaweH, l(i Ch. ]). 48!) ; Swansea, etc. v. Dun- 
 cm, 1 (l B. D. (i48-!) ; Finlaii v. Scott, W. N. 1884, 8. 
 
 In general the motion will be made, as tlie Rule provides, by the party fiivinn 
 Itif Hnlicc ; hut an application seems to liave been made by the third i)arty in 
 I'iUcr V. RoheHs, 21 Ch. D. 1!)8. 
 
 Where judgment has been obtivined under /'»/'■ 73!t, a Judge cannot give 
 lirectioiis as to the trial of the cpiestion of the liability of the third i)arty wiio 
 •i:i» iH'eii biciught in : Rich v. Itanttt, 28 Sol. Jour. 513 ; Imt in Flower v.'Todit, 
 >v. N'^1S84, 47, judgment having been obtained against one defeiidant uiuh'f 
 /("''■ 73!t, tlie question of the liability of iiis co-defendant to a claim for 
 sHiieiiiiiity in resjiect of tlie judgment was directed to be determined at t!ie 
 trial. 
 
 The costs of the proceedings will in general be reserved till the trial : Beneckr 
 V. Frimt, 1 (^. B. I). 422, but t/ixer)' whether the order giving directions should 
 li'it make some reference to the costs of the pr(K;eedings : Tomlin.vin v. 
 .^ortlieri, /,';/. H I>. K. 52(1. 
 
 The Court or Judge may fjive such directions as may be jtrojier for having 
 the (|uestioii ill which the third party is interested determined, subject always 
 tji the condition that the iilaintiff must not lie prejudiced or unreasonably 
 'lelayed. . . 
 
 J.A. 24 
 
370 
 
 COMMENCEMENT OF ACTIONS. 
 
 Practice 
 prior to 
 EuRlislj 
 Kules of 
 18H:i, and 
 Ontario. 
 
 
 Rule 332. DirectioriH may be given that the third party is to be "bound" only 
 Directions by the decision ui)on some (jueHtion : Bcnvckc v. Frost, 1 ^l. B. D. 422;. 
 wliicli mayor that he may be "miule liable" by the decision ai)i)arently to I'ithcr 
 be given, the plaintitf or the defendant who gave the notice: Pillir v. JiabcrU, 
 21 Cli. 1). 1!»H ; llorwell v. London Omnilius, etc. Co., 2 Ex. 1). 374; and 
 all i)roi)er pleading's will Vie ordered to lie delivered and dircctioiis givt-n 
 as to the trial : see Wilhniii v. Vonc, 4!( L. J., Cliy. 242 ; or l(Hiking 
 at the circumstances, and nutwitliHtanding that tlie third iiarty may not 
 have moved to dischargi! the H(U'vice of tiie notice upon liiiii, the Court or 
 Judge may dt^terniine that it is not a pro|)er casc^ for citing a third iKuty, 
 or that tile giving of any directions will prejudice <ir diUay the jilaintitf 
 and may therefore refuse to give any : Schnciilir v. Jidt/, 44 L. T. \. S. 142; 
 8 Q. B. D. 101 ; see Boicrr v. liiirtUii, sup.; Amiocixtal llomc (Jn. v. ]\'liirlici,iil, 
 8 Oh. D. 457, in which case the tliird jiarty must be considered as (li.-JinissMi 
 from the action : SeJuicidcr v. IMl, 8(2. li. D. 701 ; 45 L. T. \. H. 370 ; 50 L.J. 
 Q. B. 525; 30 W. R. 420 ; 18 C. L. J. 5(i. 
 
 A defendant wiio is (entitled to indemnity from a co-defendant is entitled to 
 judgment before he has actually paid anything in disciiarge of his liability to 
 the plaintiff : EmjUsk and Scottixh Trust Co. v. Ftatau, 3() \V. K. !i;W. See 
 Underlmi/ v. Head, Ih. 75; CuniiiwjIu'Vi v. Li/stcr, 13 iiv. 575; (.'Itndenmtnw 
 Grant, 10 P. R. 51(3. 
 
 It was established in England under the Rules prior to those of 1883, on 
 which the Ontario Midi'-'i are fouiuhid, that the oliject of the Jinlrti was that 
 where the .same (|uestioii, of a sulistantial nature: Corrie v. Allen, 48 L, T. 
 j,j N. S. 4(54 ; W. N. 1883, 34, (i5, tliough not necessarily the whole question in 
 the action : Bower v. Hm'tky, 1 <2. B. D. 025, exists between several persons, 
 that (piestion shall lie tried once for all ; and tiiat if there were no (picitions 
 which could be determined between the plaintiff, the defendant and the tliinl 
 party at one trial, the case was iKJt a proiier tme for citing a third [larty, and he 
 should be dismissed : Schnfiilcr v. Butt, 50 L. J. t^. B. 525 ; 8 l^. li. D. 
 701 ; and this whether the tiiird [larty was cited under Huh 32'.( : Sininmi, dc. 
 V. Duncan, 45 L. J. (I. B. (!40 ; 1 (i. B. D. (i4!( ; Corrie v. Alien, iin])iv. ; or under 
 Rule 330 ; Schneider v. Butt, supru ; Murner v. Briijht, infrii, and I'lie Himmi, 8 
 P. D. 91, where the third party was dismissed on the ground that tlie questions 
 between the defendant and the tliird party were totally different from tiio.se 
 between the plaintiff and defendant, wliicli would be embarrassing to tiie 
 plaintiff. See also Bliiiud Iron Co. v. (/arhutt, 40 L. T. N. S. 102, wiien; a 
 question of .seaworthiness, as between the plaintiff and defendant, and defendant 
 and the third party, was not identical in point of tinu*. Tiie same vi(nv seems to 
 have been taken in Dnndas v. (Jilmonr, 2 Out. 4()3, as the defendant and tliird 
 party were not allowed to further litigat(^ lietween theni.selves, after a trial had 
 dispo.sed of all cpiestions as far as the plaintiff was conceriK^d. Tliat enur.-ie wa.i, 
 however, allowed in Hornhii v. Cordwel/, 8 i^ B. D. 321) ; 45 L. T. X. S. 781 ; and 
 there is a very distinct expressicm of opinion by the Court of Appeal in 
 England under the Rules of 1875 that it is competent to the Court or •rndfft', 
 after the matters in wiiicii the jilaintitf is concerned are disiHised of, to give 
 directi<Jiis by wliich any sul)se(|ui'iit question between tlie defendant and tim 
 third party miglit 1k( put in course of investigation : The Cartxhurn, 5 I'. U. 02. 
 Probably t'le imii.., mu not yt be said to be settltsd in Ontario. See notes to 
 Rules 3-J8 and 333. 
 
 In Xeedd v. Cnrkindnk, 4 Out. 317, accounts lietween defendant and a third 
 
 party were adjusted at the trial, iviid out of a balance found in favor of tiie 
 
 defendant, the third party was directed to jiay the defendant the amount of the 
 
 plaintiff's claim against tlie defendant. 
 
 .Tudgment Where a defendant claims contribution from a co-defendant in resijcct of tlie 
 
 against plaintiff's claim, it seems that there is no ditticulty in giving the plaintiff 
 
 third party, judgment and iwljusting the liabilities of the defendaiits lietween tlieiiiselve.sliy 
 
 ,WBmin,?r"' subsequent inquiry: Butler v. Butler, 14 Cli. 1). 320; Savijer v. Kmnjei; 
 
 aeienuaiit. ^y^ ^^ ^^^^ ^^^^ ^^^ . ^^.^. also Borouijh v. James, \V. N. 1884, 32 ; Imt direc- 
 
 t'umn for such inquiry must be obtained under this Rule : Burke v. Pittmah, 12 
 
 P. R. (i(i2; Tritton v. Bankart, 35 W. R. 474; 50 L. T. N. S. 30(); 50 L. -I. 
 
 Chy. 021) ; Flower v. Todd, W. N. 1884, 47. 
 
TIIIllD PARTIES. 
 
 371 
 
 The Eiifflisli Rules of 1883 arc liiiiiterl to casoH r>f contribution, indeuniity, Rule 332. 
 etc., and fxpri'ssly i)rovi(lc for the trial of the (nicstion of thf liability of tlio pmctice 
 tliinl piutv to defendant (llule 174), ct or after tlie trial of the action, wliich under the 
 has txicii construed as meaning that tiiis question should Iw tried at tlie trial ''V'ti.iJi"'®*' 
 l«'twwii the plaintiff and defendant : Cahtn- v. Chiiimuni, W. X. 1884, 31. °^ ^*^^- 
 The Knjjdisli decisions therefore, under those llaka, cannot be fully aijplicablt! in 
 Oiit.irio. 
 
 If thi' third party admits his liability to indenniify defendant, h<^ may be 
 alliwed to defend. If lie does not admit his lialiility tiiat (juestion may i)e 
 (li'twiuined at the trial: Colai v. Civil Sifrirr Sii/i/>/>i Akk., 2(J Ch. 1). .52! I ; 
 Flnmr v. T"il</, W. N. 1884, 47; 28 Sol. .lour. 301; se(' also Cdl/railir v. 
 Willi iniif'>ril, ')3 L. J ^l P.. 5()!» ; J II on v. Ashliii, W. X. 18811, 158. Where a 
 thiril party aiipeared jiursuant to a thinl ])arty notice, but declined to states 
 any defence, it was held that judgnie"*^ might be ordered at onc(( against 
 him Milder the Kujrlisii Rule {Nt>. 174 ot 1883) if the .Tudge wjus not satisfied 
 tiiat tliere was any (luestion as to the lial)ility of tiie third party jiroper to be 
 tried; HloavaUrnhirc liaiikiwj. Cit. v. Philli/in, 12 (i. B. I). 533. 
 
 In IhriiHiih v. Jiimr.'i, W. X. 1884, 32, it was said that the fact tiiat the third 
 party has a counter-claim against the defi^ndant is sufficient to prevent judg- 
 ment being given against the third party. 
 
 These cases under the Kng. Rules of 1883 will not be iH'ecisely in point 
 under the jiractice in Ontario imt bearing in mind the difference in the scope of 
 the Riili.'<, tiiey may b(! usefully consulted in cases of contribution, etc. 
 
 Tile following references will further illustrate this subject : 
 
 (1) Cases of contribution, indemnity, etc., within Rule 328 first part, and 329. 
 
 In ISfiiirkr V. Front, 1 if,. 15. 1). 41!t, an action was brought for not accepting Examples 
 g(XKls, and the def(?nc«^ was raised (amongst others) that the gotKls were not illustrating 
 according to contract; the defendants were allowed to bring in persons to *!*'' l""*^' 
 wiiimi they had n^-sold uoon the same terms, in ordc.-r to liind theni by a deci- istfue^iu^' 
 sion as to the cpiality of tlie goods. Ontario. 
 
 In an action i)y the liolders of a bill, indenmity as to part was claimed by the 
 ivcceirtdrs from the drawer on the gnnind that the considiTation hiul in part 
 failed ; the drawer dtuiied failure of consideration ; an order was made substi- 
 tutinj; the drawer for the plaintiff, and allowing him to sue on the bill, u]K)n 
 the acceptor's undertaking to pay tlie amount not in dispute, and the drawer's 
 l)aying to tlie |)laintiff the balance . dispute : Nntiounl Provincial Bank of 
 Emiliiiul v. /Iniilliii liridoi , ,!<:, Co., \V. X. 187<i, ()3 ; 2 Cliarl. Ch. Ca. 30. 
 
 Third partie-i admitting their liability to indemnify were substituted as 
 defendants witii tlit^ plaintiff's consent : Co/aiiiinnionci-n of Wntvvforil v. Venh; 
 W. N, lS7(i, 23, imt not where phiintitf objected : McumrcH v. TUomitu, \V. X'^. 
 ISTo, 203 ; see .also Norri--^ v. JirKnlni, 2 C. P. 1). 80 : iMiiu.sv. ThoriUoii, W. X. 
 W>, 74 ; Srlliiimia v. Monxlidil, W. X. 1875. 240 ; Borlon v. Lomloa ,i- N. W. 
 Rii. i'l)., 38 Ch. I). 144 ; liimit v. liroicn, 37 W. R. 5!)2 ; (iO L. T. X. K. (>51. 
 
 A. ciiiitracted to siOi goods to H. with a warranty, and himself Ixnight the 
 goud.s from (,', stipulating for a similar warranty. W. sued A. for breach of war- 
 ranty. It u;is held tl lat C. was piii|i, il\ liiMu^lit in, and diiH^ctions were given 
 for trial of tlie liability of (\ to indemnify A. : Ihirt v. Broivn, 28 Sol. .Jour. 577. 
 
 Tliird jiarties were [)roperly served, where defendant claimed contribution 
 fniiii tlieiii iis partners, to the exttait of one-half of what might bo recovered 
 asainat defendant : McLaren v. Markn, 10 1*. R. 451. 
 
 (2) Cases of common ^luestion within Rule 328, last part. 
 
 An order will be made for the trial, witii tlie issues in which the plaintiff is 
 interested, (if otiier issues between co-defendants, if they are germane to the 
 matter in dispute, ,ind convenient to lii' tried with the former issues, but not 
 miless tile plaintiff consents : Marnir v. Briiiht, 11 Ch. I). 3!»4, n ; W. X. 1878, 
 ul, or does not object : Banol v. Ka.tton, 11 Cii. I). 3!»2, or though the plaintiff 
 •ilijects if he cannot be prejudiced : Tvbbs v. Lcuu.% W. X. 1875, 204 ; 1 Cliarl. 
 th. Cii. (Ki. 
 
 13: 
 
 
 \ 
 
872 
 
 Rule 332. 
 
 Third 
 
 parties. 
 
 Costs. 
 
 COMMENCEMENT OF ACTIONS. 
 
 In Itii'jiit V. I'jiist'iii, tilt' |)litiiitifi' jointly with ficfi'mlunt 15., fntfrcfl into :i 
 contract witii defendant H. to wori< in i)artnersiii|) an adventure on lunds 
 belon^'ing to I'l. I'laintilf alle^'ed tiiat K. oi)tained the contract hy iiiisrcprc- 
 sentation, and aslced for rescission, or, in the alternative, for (Hs.sDlution. 
 Defendant 15. olitained leave to .serve a notice of a claim he liiul iii,Miiist 
 defendant K., arising,' out of the subject matter of the a(;tion. On an applica- 
 tion l)y defendant 15. under lii'lr 'XV2, for directions as to the trial <if the issue 
 between 15. and K., an order was madt , allowing 15. to pro.secute his claim in 
 the i)ending action. 
 
 In Ti'liliti v. f.riiu'n, W. N. 187'), 204, the plaintiff, an intending- vendee, sued 
 iui auctioneer for his deposit. The auctioneer claimed part of it forconiniissioii, 
 and the vendor, who was bron)?ht in as a third party, claimed tiie deposit as 
 forfeited. Lush, J., i^nh^'ed tiie riyht of the tliird party affainst the auctioiii'i-r 
 to be tried, and the venilor who ajipeared as third i)arty was ordered to p'.ead 
 tt) the statement of claim as it stood, and deliver defence and (iounter-claiiii. If 
 any, to the plaintiff and ori},'inal defendant, plaintiff to liave leave to reply, 
 and defendant to amend hi.s defence within si.x days. 
 
 In JJn'irr v. ('(Uiuihi I'l'rouinrnt F,, A- S. Cn., 1 C. L. T. 730, an action was 
 brought by D. against mortgagees to recover surplus moneys in tiieir hands 
 after a sale. The mortgagees claimed to retain part of the moneys as assignees 
 of a judgment against 1)., and the whole was claimed by X. On motion hy 
 tlu^ mortgagees, X. was allowed to be brought in, that the question between 
 all parties might be determined. 
 
 In an action for specific perfonnance of an agreement to sell land, persons 
 claiming an interest m the land were allowed to be cited .is third i)arties to l)ind 
 them on the iiiic«/iiiii nf tilli' : llnrrtj v. Ihtcen, 24 W. K. .516; but an a))plication 
 afterwiird.s to add them as defendants was dismissed : 2 Ch. 1). 721. 
 
 In an action for damages for breach of contract to supply a j)umi)ing engine 
 which had failed through the breaking of the crank shaft ; third i)arties were 
 allowed to be cited to l)e lM)imd on the question of a latent defect in the forging; 
 XiirtluniiiAon, etc. v. Kaxtmi, cited Aichibald, Pr. 13(5. 
 
 Where the thir'i i)arty was alleged to have sold gcK)ds to defendant as of a 
 certain quality, .ind de/i-ndauts reju-esentefl them to l)e of the .same quality 
 when they re-sold to the plaintiffs, this was h(;ld to Ije a ground for iiuleniuity 
 without any snecial agreement on the subject, and the thiixl [)arty was directed 
 to l)e boimd li/i t/n' (/iriiiidu as tit tlie (/lutJiti/ : Juiuihs v. lirmrn, W. X. 1S84, 
 23 ; and see Hart v. Jirown, supra. See also Sled v. Dixim, W. N. IHHO, 113; 
 42 L. T. X. 8. 7()5 ; 28 W. K. 7!M). 
 
 Where a defendant is sued in different Divisions Viy different |)ersons for the 
 same money, the proper course for his protection is matter for the discretion of 
 the Court: AKsuciateii Hume Co. v. W'kiehcuril, 8 Ch. D. 4i>7. 
 
 It was at one time held in England under the corresponding English Rule of 
 1875, that no power was given to the C'ourt to impose terms as to costs on the 
 jiarties bringing in the third jiarty : see Yorkshire W'aj/j/ini Co. v. Ni'ir/xirl Cud 
 Co., .5 (}. B. D. 2()8. This will not be so under the i)resent Kvie, as the conclud- 
 ing words " and as to the costs of the i)roceedings " have been introduced to 
 meet the objection. Later English ca.ses also affinn the jurisdiction, and where 
 a third party appears and obtains leave to defend. Ins costs may be ordered to 
 be paid by the phiintiff : ]yitl„m v. Vane, 28 W. R. 812; W. X. 188(1, KW : 
 1881, 7i> ; 44 L. T. X. H. 718 ; FuHo,, v. liroicn, !» C. L. T. 313 ; or by defendant : 
 JiawKon v. Shi'pheril, 4!) L. J. il 15. 52!) ; W. X. 1880, 110 ; or to be iKirneby him- 
 self : Williams V. .V. li. Jt.i/. Co., 2(5 W. R. 3.52; ToiiiliiLion v. yoiilmii Itij.ll 
 P. R. 4H(, Ti'H't ; or he niav be cn-dered to jiay the plaintiff's costs directly : 
 I'iller V. liobeHs, 21 Ch. I). 108; Kdisini v. llolland, 41 Ch. D. 28; or defend- 
 
 ant's costs ; and costs jiayable by him to the plaintiff may be given todefeiidaut 
 against the third party : Hornby v. Canlwell, 
 V. (Iidilvn, 4 Ex. D. 24(). 
 
 against the third party :" lloriihji v. Carilwell, 8 (2. B. D. 321) ; see also /kijnnii 
 
 The English Rules of 1883 make exi>res8 provisions ( Rule 17(5) for the deter- 
 mination of all questions of costs between the third i)arties and all other 
 parties to the action. 
 
Rules 
 333, 334. 
 
 Plaintiff 
 iKit to be 
 delayed by 
 
 (|U0Stioll8 
 
 botwoen 
 defen- 
 dants, 
 
 THIRD PARTIES. 373 
 
 333* A plaintiff is not io be unnecessarily delayed in 
 recovering his claim by reason of questions between defen- 
 dants in which the plaintiff is not concerned ; and the 
 Court or Judge is to give such direction as may be neces- 
 sary to prevent such delay of the plaintiff, where this can 
 be (lone, on terms or otherwise, without injustice to the 
 defendants. J. A. Rule 112. 
 
 TIki'c is n(i ('X])ivss Itnh' like? tliis in the English Act, Init the dccisioni of 
 the Courts arc to th(^ Hiinic effcet : m>f /iuircr v l/ofthi/, I (}. 15. 1). (i52 ; }]'i/i'- 
 V'fUni It'll. ('('. V. Haws, KiCli. I). 48! I ; liiii-(nn v. L"ii'/"ii <0 .V. If. /li/. ( >., 
 ;i.SCli. \). 1 14 ; Biiriic v Ih-uwii, 37 W. H. TyWl ; (iO L. T. N. S. (151. 
 
 Proci'durc has not beon unknown in CiianciTy, by which in sonic cases ; 
 umttcr in flisiiute solely between co-defendants, niiglit be litijfatcd liy tlu-ni. 
 Ill Cifi/iri/ V, J/ddi/.siiii, 13 dr. 433, that proccdiire o|)erated so as to delay the 
 |iliiintilf. It has, therefore, not been followed in sonic later eases : see /i/.s'Cnc 
 \. Win-il, 1 (!. L. T. 12!t; and <'<r„iphcll v. n<>hiiisi,n,'21 <ir. ()34. .V (luestionof 
 title lii'twcen two defendants was decided at the trial in HV»«/.s v. \V(iiiiln,\{\ 
 dr. 471 ; and sec tlu! decree in Juliiuvm v. Nic::( r, 1). 15. 27, fo. loO. Where an 
 iii((uirv was direi^tcd to (U'tenninc the rights of the defendants intir hc, as a 
 >H))iiriite reference, that tb( plaintiff should not be delayed thereby. 
 
 Tliis /,'"/(' seems t') recognii'.e tliat th(!r(> may be a determination of more 
 tiian a (niestion in which all |)arties are interested, and that issues may be 
 tried ill which tlit^ plaintiff is not concerned ; and there does not seem to be any 
 !,'(ii)(l reason why, after a judgment disposing of the |)laintitf's claims has been 
 prdiiimiiced, it should not lie entered, and issues between other jiarties, either 
 at till' same trial or afterwards, disposed of without any new action, us was 
 sutr^,'..ste(l in r/ii' Ciirtsliiirn, 5 ]'. 1). (i2; rilhr v. Rohrri.f, 21 C\\. \). T.W, and 
 in llniiiilliiii I'riir. L. >{• S. Cn. v. Smith, 17 Ont. 1, and as was done in /furiihi/ v. 
 '■'inhn/l, S (,». 15. I). 32!» ; 4.5 L. T. N. S. 7.H1 ; /l/"iv v. Ashl>,/, W. N. 1«K!I, I'.W : 
 It si'i'iiis, however, now settled otherwise in ca.ses of indemnity at any rate : 
 sen SrIiiifii/iT v. /)(///, K (,>. 15. 1). 701 ; hiiiidiis v. (liliiiiiur, 2 t)nt. 4(13, in note to 
 /.'«/r ;532, /-'"■/,/> V. 7'nni<nil, 5 Ont. o2 ; ./■Ji/ismi v. J/i,H<iii(/, 3H Ch. D. 28; 
 i;i;,i,r V. Cliiipmini, W. N. 1H,S4, 31. 
 
 1534. In any cause [or matter! for the administration of Parties to 
 the estate of a deceased person, no party (a) other than the uat'ioii^" 
 executor or administrator shall, unless by leave, be entitled '''^''°'*'^'"^' 
 to appear either in Court or in Chambers, or in a Master's 
 otfice, on the claim of any person not a party to the cause 
 against the estate of the deceased in respect of any debt or 
 liability. The Court, Judge or Master as the case may be, 
 may direct any other party to the cause to appear, either in 
 addition to or in the place of the executor or administrator, 
 upon such terms as to costs or otherwise as he shall think 
 tit. J. A. Rules 114, 518. 
 
 Same as Dng. Con. Rules, 1883, 1G!». 
 
 The Kng. Rule Ajiril, 1880, 15. 8, has not the words in brackets and ha« at 
 ('() the Words " to the cause." Otherwise the Hides are the same. 
 
 Mere liberty to attend proceedings dm's not necessarily entitle the ^)arty to 
 costs of attendance. The order sliould so provide if it is thi^ intention that 
 costs slumld be allowed : /Jui/ v. /icult!/, 21 Ch. D. 830. 
 
 Only one party should in general attend to opjiose a contested claim in fin 
 iMiniiiiistration action : Jti' .Smith v. Watts, .52 L. J. Chy. 20!). 
 
 ^ 
 
 % 
 
 
 il 
 
374 
 
 COMMENCEMENT OF ACTIONS. 
 
 Rule 336. ' (ji) Guardiann. 
 
 Insane per- 3JJ5. In all cases in which lunatics and persons of 
 unsound mind, not so found by inquisition [or judicial 
 declaration] might respectively before the passing of The 
 Ontario Judicature Act, 1881, have sued as plaintiffs, or 
 would have been liable to be sued as defendants, in any 
 action or suit, they may respectively sue as plaintiffs in any 
 action by their committees or next friends in manner prac- 
 tised in the Court of Chancery before the passing of the 
 said Act, and may in a like manner defend any action by 
 their committees or guardians appointed for that purpose. 
 J. A. Rule 124. 
 
 The words in brackets are not in the Knglish Rules, in other resiiects this is 
 to the same eflfect as Eng. R. 1875, O. 18, (1883 R. 130)- 
 
 The practice a(lo|)t('d by this I'uh' is that of the Court of Chancery. 
 
 Lunatics as Lunatics — As I'luiiilijls. — A hinatic so found by inquisition (or judiciil declar- 
 plaiutilfs. ation under R. S. (). 1887, c. .54, s. 8, ) and having a coniuiittee, must sue by him. 
 If he has no committee, or if the connnittee has an interest in the subject matter 
 of the action adverse to the lunatic, the suit in certain cases may bebroiiKlit 
 by the Attorney-Oeneral : Atti/. (Irn. v. Panther, 2 Dick. 748, but is iisiiallv bv 
 next friend : Uijht v. IJijIit, 2.5 Beav. 248; PurUr v. I'ortrr, 37 Cli. 1). '420; 
 who may be any persim who chooses to act, just as in tlie case of lui infant: 
 Skinwr v. White, lit C. L. J. 115 ; and need not be a .solvent person : Shttrji v. 
 Slidrf), 2 Chy. Ch. 244 ; Cnioileii v. h'iii;/st<>,i, 3 C. L. T. 311 ; Imt a coniiiiittec 
 before instittiting a suit on belialf of a lunatic or his estate nnist obtain tlic 
 sanction of the Court : Dan. Pnic. 5th ed. 82 ; (ith ed. 118. 
 
 If an action is lirouglit in the name of a person, who was at the time in a 
 state of mental incap.'icity, without either a committee or next friend, the 
 defendant may move tf) dismi.ss th(! iiiCti(m, but not if the i)laintilf iM'comes 
 imbecile after connnencing an action in the ordinary way: Dan. Pr. 5th ed. 
 81, 83 ; 0th ed. 118; Wartmdin v. Wartiwliy, Jac. 377 ;' Blolir v. Smith, You. .")!I4, 
 
 An action wliich can be shown to be not beneficial to a lunatic plaintiff 
 will bt! stayed on ap]>lication, as in the case of an infant : WdtcihniiM' v. Il'ur- 
 ,'^iiop, 5!) L". T. N. «. 14(». 
 
 Where an action is brought l)y a next friend on behalf of a person allege<l to 
 b(! of unsound mind, but wiio is really of sound mind, the actiini will on his 
 a))plicati(m, shewing by affidavit his sanity and ability to manage iiis own 
 affairs, l)e ordered to be dismissed with costs against the next friend : I'lilnur 
 V. Waleshii, L. R. 3 Chy. 732 ; and the defendant may m.ake a similar applica- 
 tion : Shiitnvi- v. White, 1!) C. L. J. 115 ; sal vide Qniintz v. Hiiieltui; (» 1\ R. 
 120. 
 
 The ai)plication must be to a Judge in Chambers, since if the affidavit is 
 contradicted or doubtful, an inquisitiion in lunacy might be directed and the 
 Master in Chambers has no jurisdiction to entertain such a (piestion ; Skiiwi' 
 v. White, sup. 
 
 Plaiiiiili If a plaintiff is found a lunatic, and a committee appointed after tlie com- 
 
 becoming mencement of an action, an order should be ol)tained for the connnittee to 
 
 insane /-(•(,- carry on the proceedings : (,'rei'n v. Pidit, 41 L. T. N. S. 30, and see Benll v. 
 
 dentehte. Smith, L. R. 9 Chy. 8.5, where the effect of the appointment of a committcf 
 
 was said to paralyze aiireceding action by a next friend. Tf during the .ictieii 
 
 the committee dies or is nnnoved, and a new committee is ai)i)ointed, a similar 
 
 order should be obtained. If the plaintiff's solicitor nt-glects to obtain an 
 
 order in either of such cases, to carry on the proceedings, the defeiulant 
 
PARTIES — GUARDIANS. 
 
 375 
 
 may, Moiv j>i(lgm<ait, niovo to diHmiss tlm action, iinlesH tlie order is obtained Rule 336. 
 witliiii II limited time ; after judjpnent tlie defendant may obtain the order Lunatics. 
 liinisflf. Sec Dan. Forms Srd ed. 5,5. 
 
 The Cotu't lia.s no jiu-indictionover tiie i)roi>ertv of ,ai)ers<in of unw.nnd mind, 
 (•xa'i)t til prot(*t it, so that when; more is desired the jiroper course is to apply 
 fdi' the aplitiintnient of a eonnnittee to jirosecute the snit : Skinner v. White, 
 .sii/,.; see .f'uirs v. Uiii/,1, L. R. ]« h)<\. 2(15; Jt><il/ v. Smith, h. R. !) Chy. 85. 
 
 As to tlie effect (>f a per.son of unsound UMnd Immu); declared a lunatic after 
 an action connnenced by next friend : nee Beali v. Smith, nupm. 
 
 Lunatics- yls' IhfendantK.—X hmatic defends by tlie committee of his estate, As defun- 
 if lie lias one. If ])e has none, or the committee has an adverse interest, or the rtants. 
 lunatic has not Ix'en so found by in(iuisition or judicial dtHjlaration, he defends 
 1)V L'uanlian ml litem under tliis Jliilr : .see also llmi'lftt v. WiUiraham, 5 Mad. 
 4L'.3: Worth V. MrA'evzir, 13 M. & (i. 3(i3. 
 
 The cmiiniittee of a hmatic's estate is a n€'(;essary party defendant with the 
 Imiatic in lui action rt^ating to that estate, and may defend without obtaining 
 leave: Dan. I'r. 5tli ed. 82. 
 
 In certain cases lunsitics may b(i served witli notice of apjilication to the 
 Hiirh Court by serving the Officiivl (Juardian. See the Act, s. 32 and notes, 
 and ll''.///v. Ot/ilry, 12 P. R. (i45. 
 
 As to the mode in which a lunatic defendant in an action is to be .served, 
 »(•(• Hiilr 2(}',i ; Wulfi' v. Oijilrii, nuprii. 
 
 After service under /tiilr 2(i3, no further jiroceedings are to be taken against 
 a lunatic who has no committee, until a guardian ail litem is aj (pointed : lliile 
 2114. If the friends of a lunatic desire to defend for him, they should cause an 
 apiiearance to be entered for him : see /{tile 33(i, ('() and then apply in Cham- 
 Ikts ; Crdir/iiril v. ('riiwfiird, ',) P. R. 178, to have a guardian ml litem apjxjinted. 
 Any tit person who has no adverse' interest may be such guardian : Dan. I'r. 
 "j'li ed. 1(10, but in general the Official (iuardian will be a]ipointed. 
 
 If no application is made on the lunatic's part the plaintiff may, after the 
 time for a))pearance has e.xpired, apply for the appointment tif a guardian ))y 
 iiuition on notice ; in which case the Official (iuardian will beajiiiointed, unless 
 h;' he already acting as solicitor for the jtlaintiff, or for some other parties 
 having an interest in the subject matter of the jiction iulverse to the lunatics, 
 nr unless the friends of the lunatic ask for the appointment of semie otlmr 
 person, in which case somootlnn- jiroper |)erson may be a|>])ointed : see Bale 33(i, 
 tlidugli sonic good rea.son is now re(iuired for a]>|)ointing .some one other than 
 the ( )tliuial ( luardian : see Rule 330 and notes. 
 
 The defence of a lunatic or person of misound mind should be exi)res8ed to 
 b' l>y his coniniittee or guardian : Arch. Pr. 13th ed. 1048. 
 
 ^'.'liere a jierson (jf unsound mind not so foimd has to be nia^le a party in the 
 ^laste^'s office after judgment, or to lie served with notice of motion for 
 an administration order, a guardian «</ litem must 1m' ajipointed in the same 
 iiianner as before judgment, or rather by analogy to the practice (see Ilnh-S) 
 ill an action before judgment: see Rules 33.5, 33(1, ,337, and H'"///' v. Ojlilrij, 
 12 P. H. (14.1. The procedure will therefore 1m^ by s|M'cial motion in Chanilxirs : 
 in the latter case before the application for the administration order is made : 
 ir-i///' V. O'lilri/, supra ; liarri/ v. lirnzil, 1 Chy. Cli. 237. 
 
 Service of persons of unsound mind with an office coi)y of a judgment, pur- 
 suant to liiih- 322 or otlierwise, is effected as the Master before whom the refer- 
 wice is pending may direct : Rale 338. 
 
 A guardian ml litem to a defendant, who became of unsound mind after judg- 
 ment, was appointed at the instance of a co-defendant who wished to obtain 
 indemnity from the insane defendant : Be Dawson, Juhnstoii v. Hill, 41 Ch. D. 
 41,5. 
 
 336. Where no appearance has been entered to a writ no anpear- 
 of summons for a defendant who is a person of unsound perifou^of 
 
_, '■ 'a: 
 
 370 
 
 Rule 336. 
 
 miHound 
 tniiKl. 
 
 'T^i 
 
 /3 It/ 
 
 COMMENCEMKNT OF ACTIONS. 
 
 mind not so found by inquisition, or judicial declaration 
 in lieu of an inquisition, the plaintiff may {<i) apply 
 to the Court or a Judge for an order that a guardian of 
 sucli defendant he appointed, by whom he may appear 
 and defend the action. 
 
 (a) But no such order shall be made unless it appears 
 on the hearing of such application that the writ of sum- 
 mons was duly served, and that notice of the application 
 was, after the expiration of the time allowed for appear- 
 ance, and at least six days before the day in the notice 
 named for hearing the aj^plication, t^erved upon, or left at 
 the dwelling-house of, the person with whom or under 
 whose care such defendant was staying at time of servin;,' 
 such writ of summons. J. A. llule GJ'. 
 
 (/>) Upon such apjilication the Official Gmirdian shall be so 
 appointed unless a Judge otherwise orders. J. A. llule 58K, 
 
 1H7">, (). la. r. 1, (1SS3 I{. 101), (Iocs lint s|)Ciik of an Otticial (;iiar- 
 ricludcs tilt' (iiiMf of an infant wliidi is licrc firovidfd for li\ /i"A' 2.'i> 
 
 Kng. H 
 (lian, and 
 
 ft .if(/. 
 
 It would sfom thatSunday is reckoned in coin|)iitiiijr tlie six elinr (lays ; see 
 /irnirstrr v. 'J'li'r/i, 11 .liir. ; see also Iti'/rs 47l\ 475 and -IT!'. 
 
 Tlie corresiiomlinj? Kiij^lisli Hide of 1X7") has lieeii iield not tn itikIci' it 
 ol )1 i^^atory on the plaiiitilV to ai)i>ly for the a|i|)oiiitnient of a ffnaniiaii V> m 
 person of unsound mind ; hut only to enable liim to do so, and if he (lues imt 
 desire the iierson of unsound mind to appear and fiefeiiil, lie may (iiiKliiifriiii 
 atlidavitof due service, ))r<.ceed as if tlie person of unsound mind ]iadii|i|)t'iiic(l : 
 '/'<'!//,„■ V. /'o/r, W. N. 1K8], 74; 45 L. T. X. S. 514. The Knt,dish Rule ef 
 liSiSH makes tlie application ohligatory ; instead of the word "may" at (c) the 
 words " shall lieforc procewlinjf furtlier with the action against tiie defcndiiiit ' 
 are sulistitiited. 
 
 It will be seen, however, from the terms of Hiilr 2(!4, that the practice in 
 Ontario is different from the Enfc. Ride of 1S75, and tl," same as the Kiii.'. 
 Rule of 1HS;5, and that even though an apiiearance should lie eiitereil f(Ji' ii 
 hliiatie, if lie has no committee or guardian r"/ litrni, the jilaintiff caiiiint pi'i- 
 ceed until a guardian (nl litnn is appointed. It is aiipreheuded thi't tlie inten- 
 tion of the liiilcK is, that application may he made on behalf of a hiiiatio for tlif 
 appointment of a committee or guardian ail litem by whom lie may aiipearaii'l 
 defend ; but that if no sucli appointment is niaih', tlie iilaintitf may under thi< 
 Riilf ai)])ly to have a guardian appointed. 
 
 Apjilications under this Rvli- should be made to the Master in f 'liamhcrs not 
 to a. fudge : Ci-avfiml v. Cnnrfont, !t V. H. 17S. If the person has luit liffu 
 found to be of unsound mind by inquisition, or judicial declaration, facts iim''t 
 be shewn ujkiii which the Court may judge for itself tiiat the persdn is nf 
 unsound mind : Afc/nti/ir v. Kiiiiixliii, 1 Cliy. Ch. 281. The oHicial Kiianliaii 
 is to lie ajiiMiinted, unless a case is made for appointing another proper persen : 
 see Rulr 33(), (li). It will doubtless have to be shewn that .such other tiersnn 
 has no conflicting interest : see iti., and Jnwrs v. Rolirrtxnn, 1 Cliy. Cli. li'T. 
 Service of notice of the a|))>lication is necessary though the jierson to lie served 
 is out of the juri.sdiction : iyjiricn v. Mditldiid, 10 W. R. 275. 
 
 This Rn/c is based uiMin the Engli-sh Cliancery Order 7, Rulf; 3. There are. 
 however, two alterations, viz., the substitutioii of "the official gimrdiau er 
 some otlier projier jierson " for, " one of the Solicitors of the Court," and the 
 
 Chy. 0. 
 
PARTIES — OUARDUNS. 
 
 377 
 
 iiiiiissidii of jMii'NDiiH (if weak iiiiiid from tlic pcrMoiis rcKiinlc'l u 
 iiiiiiti:<. I" tlicCoiirt of ("liiiiiciT.v |ii'i'.-ii)HM of Kfi'iit uki'iukI iiiciii 
 iiiirtdbiisini'Hs liiivc Im'I'H onltTt'd til lit'dt ' 
 lUib, 11 W. U. 2!IH; Ni'irm<n, v. Srlfr, 11 
 ■I'mnUn^n,,, .'« W. K. H14 ; nii I,. 'I'. N. S. 
 
 us //()/( iniii/iiitcf Rules 
 ipiiiili-of iittcnd- 337, 338. 
 Iiiif to liiisiiii'HS liiivc Im'1'11 ordcrrd tii lie dcffiidcd liv (,'Uiii(liiiii ml litriii : Sift/ v. 
 
 ■ " '■'- 11 W. I{. 7(i4; mid ill l.vid Ciinhnll v. 
 
 rtf. ; 54 L. .1. Cliy. !tr>7, til.' i.liiiiitilf 
 liiiviiijf lit'coiiic by iip' mid illness inciipalili' of coiiiiilyiiiK ^v itii mi order for 
 lniiiliKitioiion'oiitiiiiiiiiK' proceedings, the proceedings were on iipplicMlion on 
 ills JM'lialf iiiiieiided l)y adding Ills hrotlier as next friend. See lit Kill//, (1 
 I'. H. '2-2». 
 
 Fur fiirtiier inforinatioii on this snitject, see Morgan's f'liy. Orders, p. 4(K>, 
 Itllfd. ; Setnll 7<M>. 
 
 All ai>l«'iiitiiieiit of a guardian without notice served as directed hy this /{I'lf 
 WHS liclii to he not a mere irregularity, and to lie not capalile of lioiiig waived 
 by tile fact that the Official (iuardian who was iip|ioiiite(l, acted as such, and 
 iiiiiile all tile iiKpiirii's usual in such cases in the interi'sts of the lunatiu ; 
 Warwick y. /'rirni; VI P. I{. '-'(U. 
 
 tiii7» Where infants, or persons of unsound mind not 'M>i>oint- 
 so found by inquisition, are served with any officti copy of aKuar.iian 
 gnient or order in any proceedings, or are made parties i'/Ztant"'*," 
 
 
 to actions after judgment, guardians <i(l litem are to l^e j|J,',',\'Jj^^|^jJ'fjg^. 
 appointed for them in Uke manner as before judgment. jndHmont. 
 
 Ciiy. 
 
 022, 
 
 o25. 
 
 Infants, The appointment of guardians ntl litmi to infants liefori- jiidg- 
 iMiiit, is now go\enied liy Uitlin 258, L'(il, '_'(U. L'nderthose /^■'/(.•^ service of the 
 writ (III tile Otticial ( iuardian ml litiui, i/isii fuctu constitutes him the guardian 
 iif tlie infant on whose liehalf he is serveil in all cases excejit actions for per- 
 sMiuvl tiirts, or for the mere recovery of money : see Hitli' 2(iO. Where an infant 
 is ri'(|uire(i to lie served with an office copy of judgment it is ordinarily in that 
 liiissdf cases in which service of a writ on tlie (ifticial ( iuardian is sufficient 
 MTvice on tile infant if an originnl defendant, and liy analogy to llidi 258, (set' 
 Itiih 3), ill such (Nises, service of the office copy of the judgment on the Official 
 lliiiirdiaii would lie sufficient service on the infant, and the Official (iuardian 
 wiiiild tliereliy lie(!ome ijiKo fiicti) his guardian (cl lilfni. Where there aro 
 several iiifiiiit defendants to lie served, liy analogy to /tulr 25S, only one copy 
 iif tlie judgment need lie served on the Official (iuardian. 
 
 Lunatics. This Rule refers to iieiwins of unsound mind not so found liy 
 any iiKiuisition or onhirof the Court. The appointment of guardians ad liUin 
 tiisiu.li persons before judgment is reg\ilated by llnli 'SM. 
 
 Till' appointmen*^ is made on an ap)ilication in Chambers, notice of which 
 iiiiitidii may lie served along with the office cojiy of the jmlgment - (ir after- 
 wiuils, but no further pn ceedings attecting the iierson of unsound mind can 
 pi'dpcrly lie taken until a guardian tid lilt in shall have been appointed for him : 
 W'nIfi'wOiiilrii, 12 I'. H. (;45. Where the Master before whom the reference 
 is jK^iidiiig, lias also jurisdiction in Chambers, it would seem that he would 
 liiive power to entta'tain such apjilications. 
 
 \\ lien a jierson has been judicially declared a lunatic, service is effected on 
 liis cdiiiiiiittee, who should 1k^ made a <Hi-<lefendant : Sm. I'r. 7th ed. ji. .'{ll, and 
 It Would seem not to be necessary in such a case to ap|Miint a guardian ml 
 lil(in : Jh., but when the lunatic lias no committee within the jurisdiction, it 
 liaslieeii held pr.iper to serve the Official (iuardian ml liUiii im behalf of such 
 lunutic ; see Rt Hwiar, 12 P. R, (i4.5, xni qiwn: 
 
 33N. Wliere a person required to be served with an service of 
 office-copy of a judgment or order is an infant, or a person immtL"'^ 
 of unsound mind not so found by inquisition, the service is ^,y,\\^"^^" 
 
«78 
 
 COMMENCEMENT OF ACTIONS. 
 
 Rule 339. 
 
 how 
 <<ITuct<'il. 
 
 'T?i' 
 
 1., 
 
 Person de- 
 siriiie to 
 have a 
 guardian 
 ad litem 
 appointed 
 toLinisolf, 
 may attend 
 Judge witl) 
 proi)ose(l 
 guardian. 
 Evidence 
 required on 
 applica- 
 tion. 
 
 to be effected upon such pernon or persons, and in such 
 manner, as the blaster, before whom the reference under 
 the judf^ment or order is being prosecuted, directs. 
 Chy. 0. 523. 
 
 Service of office copy of Judgment. Iniantm.— For tlm rcawinH given 
 in tile note to the llrl'C^■(lin^f /liilc, MtM'vict! (in tlic Otficiiil (iniinliiin df uiuiHicc 
 Cdjiy <if H .judKi'H'nt rcfiuircd to Ik- Merved on an infant, may iM'.sutficifMtscrvici' 
 on the infant, and the ()tti(Mal (rtiardian may tlicrcliy i/wi /nc/ii 1kc(jiiic iiis 
 i^nardian ail /Itnn, Imt iit [irfxcnt tliiM is a mattr-r of infcrcni'i' ; and until it 
 IniH ticcn judicially decided that MUch is tlie ftfcct of the UuIik, it may Iwmifci 
 to olitain an order expres.sly a^iiiointinK a K'"i'''l''i" '"' ''''"' for infiuits w> 
 reiiuired to tie served and directing the guardian so a|)|H)inte(l to h- scrv 
 un liehalf of the infant inider tliis Jink: 
 
 A ^■,uardian ail lilim nnist be a|i|iointed for an infant wlii'tiicr lu> is 
 made a party in his own rijfht, or in a representative capacity, '.j/, ,aM e.viciit'T 
 or trustee, or the proci'edin^rs will 1«( void as against Hucli inhvnt ; lie Jacksim, 
 Massrii v. Cninknliaiikii, 12 1'. K. 475. 
 
 LuNATi(?s. — When a iH^rson who has In-en judicially declared a lunatic i> 
 rwpiiretl to l)e served with a judgment, tiie office cony slio\dd 1h' directed to !»■ 
 served on his coniniittee, who should be a co-defendant : see nott^ to llulcSA". 
 m'll riilc Itt J/iiiiui; 12 J'. R. Mii, Where the pttrson re(|uired to l)e served i. 
 of un.Moimd mind, but has not l)een judicially declared to l)ualimatic, tlitfiirec 
 tion of the Master biffore wiioni the reference is jiending should lie iihtaincd 
 under this Hn/r as to tii(! nuKle in wiiich he is to be served. Hy aiialopy t" 
 liiile 2()3 (see Jiit/r S) it wotdd apjx'ar that the jierson with wlioin, or under 
 whose care he is, siioidd Ik- directed to be served ; and, \ndess it is shown thai 
 service on the person of imsoimd mind would Ixuittended with dimmer, itwrnilil 
 seem that he should Ix' directed to be jK-rsonally .served as well: see /^ 
 Mil/cr, IChy. Oh. 210; /{, \nr„i<ni, 2Chy. Ch. 3!t(» ; Jl' Mi'ln, 2('iiy.Cii. 4:>!l. 
 No iinMU'ediuL's can lie validly taken against a jier.son of unsound niinil until 
 a guardian (kI lilcni has been apjiointed. It is therefore necessary not only t" 
 obtain the Master's direction for service of the office cojiy of judgment on tin- 
 jierson of unsomid mind under this Rale, but it is also necessary to obtain an 
 order appointing a guardiaiM(f/ /i7rnt to sucli jierson. This is to be donf liy 
 order to be obtained in Ciuinilx;rH on motion, supported by aftidavit(<, Twu 
 clear days' notice of tlie motion is sufficient : Rale 47!>. 
 
 When a defendant in an action becomes of unsound mind after judgment, a 
 guardian ml litmi nuist be apiniinted for him before proceedings can lie validly 
 continued against him : H'l/// v. Oijilri/, 12 i'. H. (145. This must lie dune liy 
 order, upon motion, and cannot be effected by merely serving the Otficial 
 (4uardian on his behalf: lli;.inl vklr Re Jldijitr. \'l 1*. R. (14"), where it wii~ 
 held that this might l)e done where the defendant had been judicially dwdared 
 insane, .■«'(/ (incrc. 
 
 330. A person desirous of appointing a guardian for 
 himself other than the Official Guardian to defend an action 
 or matter, may go before a Judge or Master with the pro- 
 posed guardian if he thinks fit to do so. But he must 
 satisfy the Judge or Master by affidavit that the proposed 
 guardian is a fit person, and has no interest adverse to that 
 of the person of whom he is to be the guardian in the 
 matter in question ; and if the affidavit is not sufficient for 
 this purpose, the Judge or Master may examine the pro- 
 posed guardian, or the person making the afiidavit, vun 
 
 i'riuikiilumh, V. 
 
JOINDER OF CAUSES OP ACTION. 
 
 me, or retiuire further evidence to be adduced until he 
 is satisfied of the propriety of the appointment. Chy. 
 0. 52(i. 
 
 This l{ii/i' wciiild ii|i|)c;u' toiviiply to nil riiics of (lisiil)ility wlicrt' tlm appoint- 
 nii'iit iif iiKMiirdiim \h ncccHHury. 
 
 Wlicii nil till' appliciition of the pliiiiititf for llii' iippointiiifiit of a Kuardiiin 
 ii'l litiiit U> Ml iiifa.il, or lunatic; defendant, the K'uardian appointed \va>< tlie 
 iinniiiici' iif the Conrt, till' pliiintiff was Ixiund in any event to pay tiie ^nar- 
 iliiiii's costs, but wiiere tiie nominee of the (h'fenihmt wan al)pointed, there waH 
 11(1 MiKih liability : Hhniiiils \. Anin/i/, U ("hy. (.h. 7"). 'I'he Otticial (fuardian 
 ('(///(rw is now, hy the iliredion of the Court, appoint(!d in all cases, unleM.s 
 siiiii" M|H'oial reason exists for the appointment of some other person. 
 
 Where a tfuardian was irrejfularly appointed upon ins\itticient notice to the 
 infant, the a|i|)ointnient was set aside on the application of the infant after 
 (lecric ; lliiinillini v, htiiniUini, 2 Chy. Cli. KiO ; and sec Vic Jmlcmin, Mussii/ v. 
 i.'riaikuhiniLi, 12 J'. R. 475. 
 
 6. Joinder of Causes of Action. 
 
 JI-IO. Subject to the following Rules, the plaintiff may 
 unite, in the same action and in the same statement of 
 claim, several causes of action. J. A. Rule 115 Jirst part. 
 
 SiihstiUitially identical with the first clause of Kng. U. 1875, O. 17, r. 1 (188.3 
 K. IHS). 
 
 I'lKltT tile foriiii'r practice (prior to T/ir Adidiiiisliiition ';/' Jtintiic Act, at 
 least, sec I'O (Ir. "i74 n), the Court of Chantiery forliade multifariousness, or the 
 iiiiitiii),'(if separate and distinct subjects in one suit ; but souKiit to deal with the 
 rights of all partii's interested in the sulijecit matter brought before the Court. 
 The Ceiirts of Common J^aw limited the siilijects of litigation by reference to 
 pavticH; and sec. S4 of the C. L. P. Act (K. S. (). 1877, chaj). .'"lO), allowed caus((s 
 iif aotidii of whatever kind to lie joined in the same action, provided they were 
 liy and a},'aiiist the same iiarties and in the same right ; but this enactment did 
 nut cxtciid to replevin or ejectment. The (commissioners who recommended 
 this change, tirst introduced in the Knglish C. L. P. Act of 18.'')2, s. 41, thought 
 a plaintiff might be trusted not to jeopaidise liis case liy an inconvenient com- 
 hiiiatinii of claims. They said in their tirst report, "A jilaintifF is not likely 
 til ilaiiiaf,'e his claim for criminal conversation by adding a claim which niaj' 
 (lint't attention to a (piestion of whether he is entitled to the price of goods 
 sold, or other incongruous matter." 
 
 Tlip I'viiiciples which foniierly governed in Chancery and the Common Law 
 
 Courts on this subject liave lieen superseded hy t\\i> liitli x under this and the 
 prwrdiiig heading respecting parties. Multifariousness is no longer an objection 
 of itself : see ( 'o.i- v, /liiikt r, .'< C*li. I ). '.V)'.) ; and the right to join .several causes 
 <if action is nut limited to ca.ses where they are lietween the same ])artieH, nor 
 (save as provided in these Riilvx) in the same right. 
 
 The jireseiit Rulf is an extension of s. 84, of the C. L. I'. Act, and it iti 
 aji|ii(heiiile(l tha* the words "oause of action " must receive the sanict construc- 
 tion as they received under the above section of the C. L. V. Act : see liimlrox 
 V. M'hiti, 1 \>. H. j). 42,S. The Kuli' must, therefore, as jiut by an able com- 
 mentator on the Knglish .Tudicature Act, he taken to include, not only different 
 H'al relations arising out of the same transaction, hut also separate and inde- 
 iniident transactions : Wilson's .Tud. Act, 7th ed. 18!l. 
 
 liider Riilcn .SOO ct mif. relating to parties any number of i)Iaintiffs may 
 w. joined, cliiiniing relief against any number of defendants, jointly, severally, 
 <iriii the alternative ; and this and the followinjj Rit/rii relating to the joinder 
 'It causes of action give a very wide discretion to a plaintiff, as to the 
 
 379 
 
 Rule 340. 
 
 Costs of 
 giiiinlian 
 ad litem. 
 
 Olllclal 
 guardian 
 to 1)0 ap- 
 pointcil. 
 
 Procoed- 
 ings set 
 asido where 
 guardian 
 mt lit. irre- 
 gularly a|t- 
 liolnted. 
 
 Wluit 
 
 causes 
 of action 
 may be 
 ioiiied. 
 
 Formor 
 practice. 
 
 3» 
 
380 
 
 COMMENCEMENT OF ACTIONS. 
 
 Aule 340. snliject-iriiitteis which may he invi'stiffatwl in the iicti'Mi ; Imt it was nut 
 intended that any number of phiintiffs ssiioiild lie at hipcity, hy a mmilicr 
 of separate trials in one iu^tion. to settle all the different eoniplaiiits tluv 
 might have against all ])ersons whatsoever. 
 
 After the passing of Thi Ailmhiistration of Jiistirr Art, th(^ view of sdiiiKif 
 the .fudges in the C'oiirt of Chancery was, that a hill respecting several distinct, 
 subject-matters Wits not oi)en to the objection of multifariousness, imividci, 
 all the defendant s were interested in 'he several c'au.seH of action : .see Jiroviiw 
 diipron, 20 (Jr. 574. n. 
 
 Under the 
 Judicature 
 -Vet. 
 
 i sublli'tted that there iiiuy 
 
 H' 111 an 
 
 ll^nder The Jwlicntiiri Art and /'iifrK it 
 action : 
 
 (1) Several subject uiatti'i's ; in which casi s'yiiie one or more of the partis 
 to the action should lie interested in each ol the different siiliject uiattii^. 
 thougli the relief claimed against different defendants may lie mi liistjiKi 
 grounds, and arising out of distinct legal relatic;;:* of the jiarties; <ir, 
 
 (2) One subject matter ; in which case the ])laintiffs may claim relief scpii. 
 rately in resiiect of the same or distinct grounds, against one or nioredf tlie 
 defendants, or two or more of them may claim relief jointly i. gainst one urniiiv 
 of the defendants ; see .Siiiith v. /!ii hon/son, -li'. P. I). IKJ, wliere l)eiiiiiaii, .1., 
 said in giving judgment : "There is much force in the arguiiieMt iiseil tiiMiii|i,iit 
 the note to Order 17, Hide 1, in the valualile I'flition of the .Iiidicatiuv Act. 
 2nd ed., p. 1H7 (7th ed. p. lil'.l), by Mr. .\rthiir Wilson, who mums up his 
 reasoning thus. 'Order Ki, dealing with parties, assumes an aseerraiiicd Mili- 
 ject matter. Order 17 (now IS), dealing with subject matters, a^'-iiiiies ascii- 
 tallied parties. Tliere must, tilerefore, lie either identity of suiijeet iiiattcr, in 
 wliicii case Order 1(> gives aniple liberty ill the choice of parties, or iilcntitvi'l' 
 parties, in which case Order 17 gives a like liberty in the ( lioiee of sulijcct 
 matters." '" 
 
 Kxauiples. In I/oiu/i'ni.i J!ii. Cn. v. Tiickrr, 2 lv\. I). liOl, there was one sulijict iiiattiv, 
 
 a contract made and broken. 'I'he plaintiffs eliiimed relief 
 
 iad«f it, if 'I 
 
 was autiiorized to make it as agent of li 
 
 St L. wii( 
 lit if iKit 
 
 rized then against '1'. as ](rincipal. Roth were held to be ri^;iitl,\ 
 
 ill. 
 
 defendants. 
 In Cliil<l V. Sti 
 
 III, .") Ch. I), (i'.to, the ]>laintiff claimed dam 
 
 from .S. 
 
 a trespass, or in default fnan W. who had covenanted for (piiet eiijuyiiunt. 
 Both were held to be rightly made defendants. 
 
 Tn Hiiirill v.Wrxt. W. X. lH7'.t, itl). an action was h<ld to be rightly bidiifjlit 
 against two defendants for totally distinct causes of action ; against (lefcndant 
 West for lireach of a contract to jiersonally liMik after the plaintiff's sen win i 
 was in delicate health at the defendant West's school ; and agaiii>t defeiidiint 
 Jones, a medical man, for negligent treatment of the plaintiff's son in an illiies< 
 which resulted in his death at tiie school. 
 
 rlitly 
 liiit 
 
 In liniitli V. /Irinriir, 2 <^. M. I). I'.Hi, eight plaintiffs were held t(j ha\eri 
 
 (lined in an action for liliel, 
 n respect of the same libel. 
 
 each ha 
 
 viiig an independent cause of actimi 
 
 In V, 
 
 Till 
 
 •Mi W. |{. ;5!l.s : ,-),S L. T. X. S. 2ii, 
 
 111 'il.iiiitilfs 
 
 ight an action to restrain an infringement of certain rights of pastmc. 
 
 which they severally claimed as aiipiirtenaht to their re-ipectivt 
 
 In /liifint v. Iwxtitii, 7 Ch. I). 1, separate alternate causes of action wen 
 to have lH*n pro|)erly joined against the .same defendant. 
 
 hi'ld 
 
 Tn lirxxi'ta V. Sriiiiiirk-, itr., W. X. IHHd, ItC, it was ludd. that separate caii-i 
 
 if action against sejiarate defendants might be joined with joint and sc^ 
 causes of action, where all related to the same subject matter. 
 
 The liberty given by the (iresent Hut) is, however, suliject totiie liiiiitai ^ 
 contained in the folkiwing Itulm, and to the disin'etion of the Court (sec /("[' 
 34(>) to interfere in order to prevent issues being raisi^l which einbariiiss a 
 trial of the action. 
 
 Ill 
 
 atiiiib 
 
 fair 
 

 JOINDER OF CAUSES OF ACTION. 
 
 881 
 
 Ldid .Scllnirne, in BurMall v. lUiifnn, 2(i Cli. J). 3!t, .said : "To bring into Rule 341. 
 Mill' claim (listiiict causes of action against different jicrsons iioitli(a' liaving any- 
 riiiiif,' to lio with till' otliiT (and only historically coniiccti.'d) is not contemplated 
 I iv Oilier I'S s. 1 (/^'/( 34(t), which authorizes the joinder not of several actions 
 nirainst distinct jjersons, but several uauseH of action." 
 
 :t41. No cause of action shall, unless by leave of the Action for 
 
 T 1 1 • • 1 ^L^ 1- e l^ recovery ot 
 
 Court 01' a Jutlge, be joined with au action for the recovery lami. 
 
 of lantl, except claims in respect of mesne profits or arrears . jl ' m 
 
 of rent or double value in respect of the premises claimed^'; jt^ '^ '^J^.te ^ 
 
 or any part thereof, and damages for breach of any contract ', Vlf^VV- v^t-^^-'/^w 
 
 under which the same or any part thereof are or is held [or ' ' ' — 
 
 for an V wrong or injury to the premises claimed! . J. A. 
 
 liule IK). 
 
 Same as l';iig. P. 1SH3, R. 18!>. 
 
 'I'lie wcii'.ls ill l)i-ackets were not in the original id"^'11('i, which was the same 
 •,i. KiiK. K. 1S75, (). 17, r. 2. 
 
 Ill actions of ejectment and replevin, s. 84 of the C L. P. Act (K. S. O. 
 is'T.c. .50) (lid not allow the joinderof other eaust^s of action. That exception in 
 ciises of ejectment is continued in a modified form by the present Jiulf ; but an 
 iU;tioii of replevin seems now to stand in no different position from other 
 .ic'tioiis, no special provision having lii'en made for cases of repU^vin. 
 
 Fonnerly, no claim cimld be joined with a claim for jios.session in ejectment, 
 • xcejit a claim for iin'finc jirofits, in the case of a landlord against a tenant: 
 Rev. Stat. 1877, c. .51, s. 70 ; and nothing was required to be stated in the 
 writ or the issue, to enable the plaintiff to claim iiiexuf jirofits : Siaitli v. Tctt, 
 !i Kx. 307, 23 L. J. E.\. !(3. Under Tin Jitilicittitrc Act a claim for iikkhc jirofits, 
 >T any other claim, joined iiy leave or otherwi.se under this /liilc, must be 
 imldrsed on the writ : see App. Form No. (i, and Hi'/i'k 715 and 725, and Het up 
 ill the statement of claim : see Forms Noh. 82 and 83. 
 
 Where the leave of the Court or .Tudge is necessary under this Rule, it must 
 lie obtained before the writ is i.ssued : /'>' Pihhcr, Pilrhcr v. //iii(h, 11 Cli. 
 D. !I05; McUlKuyin v. McU'imii.s, <) P. K. 1.57. 
 
 Under special circumstances leave may be granted after the issue of the 
 wit; RmUrimkv y. F<irh;i, 33 W. R. 557': 52 L. T. N. S. ,572 ; .34 L. J. Chy. 
 I'CT; but the plaintiff must show some reason why the bringing of a .sejiarute 
 •ictioii will not do as well : Mns<jr<iir v. Strvinx, \V. N. 1881, 1((3. 
 
 Le.ive was refused after i.ssue joined and tlie actio'! .set down for trial : 
 i'hid- V. Il'/v(7, 31 Ch. L). (i8. .S<<e also /if Dcrliiui infra. 
 
 SimUi', (1) that an objection that a writ of summons, joining a claim to recover 
 land with other claims has been i.ssued may be taken by defence, (2) that the 
 phuntiff cannot cure th" irregularities in his writ by omitting the clain to 
 riTDVerland in his statement of claim, (3) that to cure the irregularity the writ 
 "f summons nuist lie amended, (4) that such amendment cannot hv made 
 «itii(mt *' consent of the defendant : Wihivitt v. Fnrhohl, ,ti\, 51 L. 'I'. N. S. 
 ■'■>i; Imt see .]f,i/hrn v. I),„rk:'<, 51 L. T. N. H. 42!l ; 53 L. J. (^ R. 52(> ; 
 '.'SSiil. .Foiir. tiSiS, where a defendant, by appearing to a writ of summons, was 
 ^I'ld to have waived any olijection there might lie under this Jln/i. The irreg- 
 ■jinly a])|H'ai's to have been waived bv renson if tile Kiig. H. corresponding to 
 /;'/j'443: 1,1 ,r /),rlio„, 3(J W. R. mj ; 58 L. '!'. N. S. 511t, it was held to be 
 ■ "I late at tile trial to object that claiin.s had been improperly joined. 
 
 hi an action uniting a claim to recover land and a claim for s|)ecific per- 
 I'lniiance of a contract to purchase, askirgfor possession if specific iierformance 
 ■lumld not he (lecreed, it was ludd that tlie two claims wi^re iniiirojierly joined 
 without leave, but leave was given, after statement of cdaim, to amend jinKjeed- 
 'igssoasto join the claims, inasmuch as the two cause's of action could not 
 i^^'mveniently be prosecuted .separately : CumiMI v. Jiiiikh, 11 P. K. 347. 
 
882 COMMKNCEMENT OF ACTIONS. 
 
 Rule 341. A claim to obtain quiet posHession of land, and an injunction to n-straJK 
 
 Joiniler of defendant from interfering with the plaintiff's quiet enjoynient, is not joining 
 
 causes of a separate caus«i of fiction with an action to recover land : KaiiMck v 
 
 action. Hihcrtu, W. N. 1HS2, 2.3; 30 W. K. SiW ; 4<i L. T. N. H. m. An action to 
 
 establish titli^ to land, to dedans that a lease was entered into by mistake, for 
 
 a receiver, and an injunction to restrain defffudant from receiving tlie rtnts, 
 
 was held not to l)e witiiin tiiis Itulc : (ihdhill v. llunUi; 14 Cii. 1). 4!)2, not 
 
 following WliHKtoni', v. Ikvix, 1 Ch. 1). \)\) ; set! also Mayor oj Narwich v, lir)m\\ 
 
 48 L. T. N. S. «!)8. 
 
 An action for the assignment of dower is an action for recovf'ry of land • 
 McCiilldck v. McCulloch, 4 C: L. T. 252. 
 
 On motion to set aside a writ in which claims are inqiroperly joiiiwl, the 
 writ nuiy \\\»n\ proper terms be iimended so as to strike out the claims wrongly 
 joined: White v. ihiiiisui/, 12 P. K. ()2(). In a foreclosiu'e action .against the 
 .assignee of the equity of redemjition acquired from the trustee in haiikriiptev 
 of the mortgagor, it was found u|)ou demanding possession that tlie mort- 
 gagor was on tile land and ref\ise(l to go out. Leave to amend the writ Ik 
 adding tiie mortgagor was refused: SutcUfff v. Wood, 50 L. T. \. S. 705; 
 53 L. J. Chy. 1(70 ; but see clause ('() of this Rule infni. 
 
 Where a pl.aintiff claimed possession .is the .assignee of a lease made by iiini 
 to the defendants who assigned to a tiiird i)arty, who .assigned and suvrendewl 
 to tlie plaintiff, anfl the defence was, that the Ifiase w.as in effect a mortgaBC, and 
 fr.aud and want of consideration were alleged, the plaintiff was not allowed to 
 amend his statement of claim and .ask foreclosuri! of the land as mortgagee; 
 Mcllharfjciix. MciJiiinis, !) F. It. 157. 
 
 Le.ave w.as given in Truntti' Likiu Co. v. Onhornc (23 Aiig., 1H81, Mr. Dalton), 
 to join causes of action for specific performance of an agreement lO p\ircha.se, 
 and in def.aidt for rescission and recovery of possession, or sah-, and .^ iiersonal 
 order for recovery of any deficiency. 
 
 In an action for recovery of land, leave has been grantt^d to j' 'n a :laim for 
 recovery of a deed relating to the land, and for an injunction and ri'cei\er ; 
 Cook V. Kiichmnrch, 2 Ch. I). Ill ; a claim for a receiver of the rents i.nd profits; 
 AUoi v. K<nu<tt, 24 W. R. 845 : and a claim for the administration of tlie per- 
 sonal estate of an intestaU- whose land was souglit to be recovered : KiiMiujv. 
 Kitchiwj, 24 W. R. «K)1 ; W. N. 187(i, 225. 
 
 In Miiiiixhi V. Kciico.hi, 24 W. R, i)18, an action for recovery of chambers in 
 (Jr.ay's Inn, of which Dr. Kenealy was trustee, a claim was allowed to be added 
 for execution of a convt^yance of the |)roperty to new trustees. 
 
 This Itiih' applies to a counter-claim .as well .as to an original claim, and 3, 
 comiter-claim hy a mortgage*^ for a declaration that he was entitled to losses- 
 sion against a person in possession who was alleged to have no title, was held 
 to be a claim for tiie recovery of land witliin tiiis Rida : Cdiiiplun v. J'irMnn, 21 
 Ch. D. 1.38 ; Ptitclixrd v. Pritrhaid, 17 Ont. 50 ; </orimj v. Couuron, 10 P. R. 
 4i)() ; see also ('Uirk v. Wmii, 31 Ch. I). (18. 
 
 Leave was granted to join in an .action for recovery of ])ossessi(in of a house, 
 a claim for an injunction restraining interference witii plaintiff's ocoipationof 
 the house and a claim for trespass and for an assault connnitted at the time of 
 the trespass : Dennis v. Crompton, W. X. 1882, 121. 
 
 Where leave hii.s not been granted, the .action may be stayed on motion ; 
 Brundreth v. tk<irs, W. N. 1883, 8!» ; but see White v. 'Rimmy, 12 P. R. f>2ti. 
 
 (a) Nothing in these Rules contained shall prevent any 
 plaintiff in an action of foreclosure or redemption, ^or for 
 the immediate payment of the mortgage moneys,] from 
 asking for or obtaining a judgment or order against the 
 defendant for delivery of the possession of the mortgaged 
 
JOINDER OF CAUSES OF ACTION. 
 
 property to the plaintiff, [either forthwith or] on or after a 
 final order for foreclosure or redemption, as the case may 
 be, and such an action shall not be deemed an action for 
 the recovery of land within the meaning of the Eules. See 
 Chy. 0. 464. 
 
 The words in brackets are not in Eng. R. 1883, 189, which in otherwise to the 
 
 same effect. 
 
 This clause is taken from Ciiy. O. 4(11, and \h more explicit than tlie proviso 
 ivganliiiKactiims on niortf^'ag'es contained in the orijfinal Jin/r (see Alaclennan 
 '"1), imkUt wliicii same <loiil)ts niit,'lit have been enter- 
 
 383 
 
 Rule 341. 
 
 IS to wlietlier claims for possession and payment (without foreclosure) 
 k: joined. 
 
 Jud. Act, 2iid ed 
 
 taiiied 
 
 iiiigiit 
 
 Tht* terms of the present cla\is(. preclude ((uestions such as arose under the 
 Kiig. R. W^K wiiich was not so clear, and under whicli it was held that a foreclo- 
 sure action was not an action for the recovery of land : see Taiivll v. Sdile Co., 3 
 Ch. 1). ()2!l ; (as to whicli : see J/nar v. A"(', W. N. 1SH4, 2.")1) ; unless perliai)8 
 it included a claim for possession ; W'ikk/ v. W/ini/r,; 22 Ch. 1). 2.S1, so that no 
 \fa,\v was necessary to join with a claim for forcclosm-e of a mortgage, a claim 
 for the administration of the trusts of the mortgage. Since those decisi(m.s and 
 since ll'iri'-irk v. JSdririck, 21 (ir. 3!(, was decided, it has l)een held that a fore- 
 closure action is an action for the recovery of land within the Statute of Limi- 
 tations : Har/ock v. Ashlwrn/, 18 Ch. D. 22it; 1!» Ch. D. .53!) ; FlHchn- v. Rod- 
 lien, 1 Ont. l.V) ; see also /fe<(lh v. l'ii;ih, (5 q. H. D. 345 ; 7 App. Cas. 235 ; but 
 these eases will not affect the construction of the present Jti'lc. 
 
 The order for d(divery of possession may now, if claimed by the writ, be 
 included in a judgment of foreclosun^, or sale, in the first instance : see /w^ji'c/k/ 
 Lmn .(• Iitn-'stmeiit <'o. v. Bmi/ttni, 22 (Jr. 121; Forms, Xo.s. 182, 183 ; but 
 where the relief lias not been given by the judgment, it may still be obtained 
 after the final order has been granted, upon application in Chambers, nnder 
 this IMr : Siill v. A(/j/(/r, 54 L. T. N. S. 374 ; Jtist v. Appleyute, 37 Ch. D. 42. 
 
 The Cliy. Ord. 404, on which the latter part of this Rule is founded, was con- 
 strued to apply to mortgiige cases, where a final order for sale had Ix^en granted, 
 a.s well as to foreclosiu'c suits. 
 
 But the Cliy. Ord. 4(>4, was held only to apjdy to mortg.ige cases, antl not to 
 actions for s|)etifie iierformance againsta piu'chaser in possession, against whom 
 a final order for res'dssion of the contract had been obtained : Murrtij v. Mont- 
 immi, 1 Chy. Ch. 21 ; Ch i.sliol m v. . I //<■», 2 Chy. Ch. 411. Formerly the order 
 could only U' made against a party to tlu; action, or jK'rsons who had acquired 
 l».s»ession /iriiilfii'f lili', from a party to the action, and having no pretenc(( 
 toanaraniouTit title ; Bank- of f'/iprr Cutiiiild v. Wii/faci; 13 (Jr. 184 ; McKcnzic 
 V. II W/(/(.v, 2 Chy. Ch. 3!tl -/Sroft v. IllHrk; 3 Chy. Ch. 323 ; Tni.sf .(• Louii Co. 
 V. Start, li !'. H, !M). Such an order was not grante<l against a tenant of the 
 mortgagor not a party to the suit, though the tenancy were created after the 
 mortgage; /lii,ik of Afouln-iil v. Ki'trlnnii, 1 Chy. Ch. 117; nor even against 
 tiie mortgagor if lie wen' in as a tres))asser : /n-i'ii;/ v. Miiiin, 1 ('hy. Ch. 240 ; 
 out under Tlic .lioliiiiturr Ait, it is possible that a more liberal construction 
 may he phu:ed upon the Rntf : see M01.0H v. Sttieii, 2 Chy. Ch. 30; but see 
 ■V(// V. Kil'jm; 54 Ti. T. X. S. 374. 
 
 The motion may be made on applying for a final order, or at any time after- 
 wards : Lo-.i,r V. RoniK-n, <> <Ji'. 323; K>'ith v. Dun, 3!» Chy. 1). 452. Notice 
 must he given of the application, but a demand of possession need not be 
 shown: lh„lku,.s„i, V. I''rnu-h, 1 Chy. Ch. 201 ; llia-klni v. OuiUelte, 2 Chy. Ch. 
 «•'; and see Wolkir v. Matlinr^, I'Chy. Ch. 232 ; but it nnist Iw shown that 
 the mortgager is in -m-AwaX possession :' Hodkiii.son v. French, 1 Chy. Ch. 223; 
 ■ 1 'I';"" )'■ " '.''.'/'"S fz/H-ff ; lUirkten v. Oiilllette, sii/ira ; and where a con- 
 Mueralile time has elapsed since the final order was granted, it should be shown 
 'il*""'' niortgagor has not since relintiuished iM)ssession ; Iruin;/ v. Munn, lb. 
 
 Order for 
 possession 
 may now 
 bo inchided 
 in judg- 
 ment. 
 Order may 
 1)0 granted 
 where writ 
 claims a 
 sale. 
 
 Order for 
 possession 
 not granted 
 under the 
 Order in 
 specific 
 perfor- 
 mance 
 en SOS. 
 
 Not against 
 tenant of 
 mortgagor. 
 
 Order for 
 possession, 
 \' lien it 
 may be ob- 
 tained. 
 
l-.i 
 
 384 
 
 Rules 
 342-344. 
 
 Ejec'tiiio!it 
 action. 
 
 CoBtB of 
 applica- 
 tion. 
 
 Order, liow 
 enforced. 
 
 Delivery of 
 title (IpcJi. 
 may .le 
 ordered. 
 
 COMMENCEMENT OF ACTIONS. 
 
 The bringing of an action of cjectincnt i« no bur to the application, but the 
 applicant may Ik- recjuirfd to discontinue the ejectment, and pa\' tiie costs- 
 Muf,,// V. iV/iilr, 1 Chy. Oil. 227. 
 
 On the motion, tlie Court will not, as a general rule, look lieliind the tiiial 
 order : Mill.s v. t'lioittc, 2 Cliy. Cii. 374. 
 
 The jilaintiff is entitled to the costs of the application ; J.(i:.iri- v. Rmitieii. 
 (') <!r. ;{2.'} ; but whei'e they were not asked for l)y tiu- notice of motion, mir 
 on the argument, and n(j demand of possession was proved, the order was made 
 witlio; *■ costs : Mills v. CJkkiIc, 2 Ciiy. Ch. 374. 
 
 On dv )bedience of the order for posses.sion, a writ of possession may now 
 issue : .see /{iiht! UliH, 870. 
 
 Til" mortgagee may also ol)taii! an order for the delivery of the title dcwls, 
 n" against tlio mortgagor, or any one claiming under iiim ,subse(iuent to tlit 
 fore^closure : Stdinrtf v. Aitii/ii, 2 Chy. Cli. 218. 
 
 as^'-iiee^^n •*'4— * Chiiuis bv ail assigtiee in insolvency as such shall 
 
 insolvency, not unless by leave of the Court or a Judge, be joined with 
 
 any claim by him in any other capacity. J. A. liule 117. 
 
 Same as Eng. R. 1875, O. 17, r. 3 (1883, R. I'M)), except that for "an 
 assignee in insolvency," the English R\de has "a Trustee in Bankruptcy." 
 
 The general rule as to joinder of causes of action Ijeing now made witliimt 
 the |)roviso contained in C. L. P. Act, s. 84, tiuit they be in tiie same rights, it 
 became neces.sary to specify cases in wiiich causes of action accruing in 
 different capacities shall not be joined. This is one of the cases : see also Jiulf 
 344. 
 
 Claims by ii^lim Claims by or against husband and wife may be 
 husband joined with claims by or against either of them separately, 
 and wife. J. A. Rule 118. 
 
 Same as Eng. R. 187.5, O. 17, r. 4 (1883, R. 101). 
 
 By the Common Law PrtKitidmv Act (R. S. O. 1877, c. .50, ,s. 80) a hii.sbancl 
 might add claims in his own right in an action brought l)y him and his wife, 
 for a cause of action accruing personally to the wife m r(iS|K'ct of which they 
 were necessarily co-plaintiffs : see llnrrixon, C. L. P. Act 87. 
 
 Claims by 
 or against 
 executor. 
 
 344. Claims by or against an executor or admiuistratoi' 
 as such may be joined with claims by or against him per- 
 sonally, provided the last mentioned claims are alleged 
 to arise with reference to the estate in respect of which the 
 plaintiff or defendant sues or is sued as executor or admin- 
 istrator. J. A. Rule 119. 
 
 Same as Eng. R. 1875 O. 17, r. 5 (1883 R. 192). 
 
 Tlie joinder of claims provided for by this iJc/c, was not i)ossible under tin- 
 former jiractice : see Wdliams on Executors, (Ith ed. 1721) ; and difficulty was 
 experienced in deciding whether an executor or administrator siiould l>e suwl 
 as such, or persoiudly. For instances, see Aahhtix. Anlihii,? B. & C. 441 ; 
 Corner v. Shrir, 3 M. & W. 350 ; Boli»ijhri>k<' v. Ki-rr, L. R. 1 i';x. 222; MuuU'.i 
 V. /{(')ulell, L. R. (l B. 3.38; Ahhott v. /'arfitt, L. R. (J q. K 34(;. 
 
 Scinlilc that as regards claims by an executor, this Rn/e refers to a casewhi ri- 
 the plaintiff's j)er.sonal claim is in r(^s|Hict of the a.ssets of the testator 7"" 
 assets ; the claim as executor and the claim j)ersonally are to be with refcrcm-i- 
 to the sairu- estate : Johnson v. Burficsn, 47 L. >h Chy. 552. 
 
MORTaAGE ACTIONS. 
 
 385 
 
 Tlie Rule it seems does not apply to a counter-claim, so as to enable the Rules 
 (icfeiidant to set up by way of counter-claim, claims a^amst the plaintiff per- 346-347. 
 sdiially and as executor, where he is only suing in a distnict i)erflonal character : 
 Mtwtonnld v. Cariwjton, 4 C. P. D. 28). 
 
 845. Claims by plaintiffs jointly may be joined with Joint and 
 claims by them or any of them separately against the same claims, 
 defendant. J. A. Rule 120. 
 
 SaiiHi as the Eng. R. 1875, O. 17 r. 6 (1883 R. 193). 
 
 S40. If it be made to appear to the Court or a Judge 
 that several causes of action joined in the same action are 
 such as cannot all be conveniently disposed of in one action, 
 the Court or a Judge may order any of such causes of 
 action to be e.Kcluded, or may direct the issues respecting 
 tlie separate causes of action to be tried separately, and 
 may direct the statement of claim, or, if no statement of 
 claim has been delivered, the copy of the writ of summons 
 and the indorsement of claim on the writ of summons, to 
 be amended accordingly, and may malce such order as to 
 costs as may be just. J. A. liules 115, 121, 122, 123. 
 
 See Kug. i{. 187.5, O. 17, r. 1, 7, 8, !), (1883, R. 18S, 11)4, 1!)."), 1!)«). 
 
 In Re WofHsam, Hemery v. W'oritsam, .51 L. J. Ch. (ifii), the Court decliiietl to 
 
 (iitcrtain iiii action to set aside a transaction and in the same proceedings 
 iiuiiiiiv wln'tlicr to do so was for tiic bmu'tit of infants or iintiorn i)ursons. 
 
 The ]ir(ivisi(ins of the RhIi'x for jirevonting any of tiio parties from being 
 |irejiKlit'(>(l ai'f t\V(j : 
 
 (1) \ claim which embarrasses a fair trial of the action may l)e struck out : 
 ffi'^s 341), 42.S. This was done in a case whce a claim was made for incon- 
 sistent altiTiialive relief by ditf<'reiit plaintiffs: Stiiith \. Richanlxon, supia, 
 where tlie vendor of goods and indorsees of a bill given by the jmrchaser to 
 the viMidoi' for tile price, jointly sued the purchaser to recover the price, and 
 also upon tlie (li.sinmoured bill. 
 
 (i) The Court may direct; the different causes of action to be tried separately 
 nmlertliis /,'/'/.■ : se'e lUi'iiil v. h'lt.sloti, 7 Ch. 1). 1 ; (Jlii/il v. .Stniiiiuii, .5 Cii. L). 
 tl'.l.">, iuid iJii)/ V. R,„M,jr, 24 W. \{. 844 ; /Idrkrr v. (Jox, .S Ch. I). 3.5!). This 
 (.nurse niifrlit formerly have lieeii directed uncU^r l{. S. (). 1877, c. .510, .s. 80: 
 HvFitxiiniinhin V. Mv/iitiin, ') I'. K. ll'.l. 
 
 Cciniparr similar power givi'U in /^///.s 373, 374, in regard to comiter-claims 
 M(lHee //,(// V. OhI Taliir'/iic/i Lniil .Wiahi'i (''>., 45 L. .1., Cliy. 775; 34 L. T. 
 N'. S. 11(11 ; ,f \\;,„i/i!,ii; :« L. 'I'. X. S. 753 ; Jiir/dt v. /■Mxt'on, 7 Ch. D. 1 : 
 Dmilln V. Mi,tid\ dr., W. X. 1880, !)() ; Co.c v. liarkci; 3 Ch. D. 372. 
 
 Order for 
 
 separate 
 issues. 
 
 Striking 
 out embar- 
 rassing 
 claims for 
 diverse 
 causes of 
 action. 
 
 Separate 
 trials. 
 
 7. MurUjagc Actions. 
 
 JI47. Instead of a foreclosure, a mortgagee may pray MoitRa«(o 
 for a sale of the mortgaged premises, and that any balance "aie^ilstJad 
 of the mortgage debt remaining due after such sale may be°fosure. 
 paid by the mortgagor, [or any surety for payment of the 
 J.A. ' 25 
 
380 
 
 COMMENCEMENT OF ACTIONS. 
 
 Rule 347. mortgage debt who is a party to the action,) and the same 
 may be adjudged accordingly. Chy. 0. 42H. 
 
 1 
 
 Orilor for 
 payment of 
 (lettcUiiicv 
 when 
 t^rantod. 
 
 Notif tliere 
 be no j)er- 
 Konal lia- 
 bility to 
 pay. 
 
 Liability, 
 when in'i- 
 plied. 
 
 Order for 
 innnediatc 
 paynu'nt, 
 when made 
 
 Surety, 
 riylitM of. 
 
 MortKai^eo 
 entitled to 
 sale, or 
 fore- 
 closure. 
 
 JIortHaKee 
 of chattels 
 rit,'ht of, to 
 fore- 
 closure 
 
 Mortfja^'ee 
 hy deposit, 
 when not 
 entitled 
 to a sale. 
 
 Crown can- 
 not 1)0 fore- 
 closed. 
 
 The words in lirael«'t.s were not in Chy. (M. 42(». 
 
 The relief mentioned in Ri(lr^U7, niay he ohiimed hy iiidurscnicnt on tlip 
 writ. A morttfiigt'e, however, is oidy entitled to an order for the iiaymcnt 
 <>\ <' ficienuy, wliere there is an e.vpres.s or im|)lied contract hy tlic 
 
 df . with tlu' plaintiff, hy covenant, or otherwise, to pay the iimrt- 
 
 ,; If there l)e no sneli contract the niortjjragee is entitled to no 
 
 p' , ( dy against the defendant : see Clii-istii- v. hmrhyr, 10 l'. 0. L, .F. 
 
 1()1 ; TiiiiliiiU V. Sniiiiiiiiiiilx, ()(Jr. (il.T ; Furlirs v. Ailniiisini, I C'liy. Ch. 11'; 
 C/i'iLioii v. Sr.,f/^ 2;") (ir. 373; Nurn's v. Mciuloirn, 2K (!r. 'A'M; l'ii;rf \, 
 ' ■III till, Jli. 'MXt \ MiitlifiK V. lli'lliircll, 10 (ir. 17:"); where, iiowever, tiii' 
 nmrtKa; deed • dns no express covemint to pay, the law will iiiiply a 
 contract O, tl.< moi'tiifiiifo'' .o pay ; svf >Sii//iiii v. Xnttim, 22 Ch. I), ."ill ; 4S LT. 
 N. ,S. !•;"); pi'o id ■ i ilit; • he evidence that the niortt,'-aj,'e was made to swure 
 a deht or loan : Jioll v. Mm-lfi,, 8 V. C. (I li. ."M ; /'nirmtiii v. Iliilnnd, 
 22 r. C. (l M. 202 ; ./iii/.-.ioii v. yniiiiinix. 111 C. I'. :«t4 ; 2S T. ('. (,|. |{. ;i(i; ; 
 '.V.i V. C. <^. 1>. 2X0. The mere acknowledtfnieiit of tiie receipt of tiie iiiortgiige 
 money, is not suffic^ient to raise any presumption of a loan, or an implied pni- 
 niise of repayment : Lniiilini Lnmi < 'i>. v. Smi/th, 32 C I'. .")|{0. Where tiien' is 
 a contract for the payment of the niorl^'affe deht, jndKment may now U' 
 ohtained, if claimed l)y the writ, for the full amomit due with costs, fur 
 whie^i execution may issue at onci', without waiting fur a sale of the iiKirt- 
 gaged pro))erty. 
 
 Where, however, a reference to the .Master to inciuire as to incumiiiancis, \n 
 necessary, tlien where relief is also soughton the contract, tlit\judgnieiit slioiild 
 refer it to the .Master to take tlie account, and direct payment of the annniiit 
 which he may find due forthwith, after the niitking of tlie Master's report : we 
 App. Fonn N'o. 182; Xm/h i,f SvntlniHl v. He,ird, 1!» C. L. J. 2r)2. 
 
 .\ surety against whom a judgment has Ih'cii nn^ivered, wiiicii liy afrrif- 
 ment is to stand as security for tln^ payment of tlie detiitiency, is entitled to 
 have the security realised hefcjre he can l)e called on to pay anything: 
 Ti't'/i'r v. St. Jii/iii, 10 (Jr. 85. .An assignee of the e(piity of retieniption wmi 
 covenants with the mortgagee to pay off the mortgage deht, hccoiiies .i 
 principal dehtor, and if time lie given him hy the ULortgagee, the niortgiigcr 
 n\ay he disciiarged : Mulhi'm v. Ili'lliinU, 10 (Jr. 172. 
 
 A nua'tgagee is now usually entitled to a .sale or forei-losure, at liisoptiimt 
 Mcjirrs V. //iirrisiiii, 1 (Ir. 44',(. Hut a sul)se(pient mortgagee cannot, iw 
 plaintiff, have a sale against a prior mortgagee without the lattei's consent: 
 Mi'Dniiinill V. t'liiiiM/, {> S. C. K. 502 ; although he may as a dcfemliint, 
 mider //»/,• 350. Where infants are concerned, and the mortgagee claims 
 foreclosure, the Judgment usually directs a sale, or foi'eelosiire, as the MiisttT 
 may find most heneficial for the infants. 
 
 .\ moi'tgagee of chattels : Coo/: v. l-'/ntii/, 5 (ir. 4(13; a municipal coriKira- 
 tion : <h-/iii</ v. iici/cf/, 12 (Jr. 270; and a chartered hank : Umi/.- "f I'ppfr 
 r,iiiiiilit V. Sriill, (i (ir. 451 ; are each entitlecl to foreclosiu'e. l'>Mt a niere 
 pledgee of chattt'ls is said to he only. entitled to a side : <'nrl''i' v. \\'iib\ 4 
 Ch. \). ()05. 
 
 .\ mortgagee of lands liy deposit is said not to he entitled to a sale, but 
 only to a foreclosure : I'liiir v. Ilniii, L. K. Ki K(|. 1.53 n ; ■Ihiik-'^ w ■Iiuhi.k, 11). 
 1.53'; Iliii-Lliiiiisi' V. Cliiii-lfini, 8 Ch. 1). 444; hut where the deposit is acconi- 
 panied hy an agreement to exectite a legal mortgage, tiie mortgagee is 
 entitled to either sale, or foreclosure: Yorh- riiiun liiHikiuij <'». v. . I ''/i/;, 11 
 (Jli. D. 205 ; although an etpiitahle mortgagee by deposit cannot iiisi.st on a 
 sale, yet if .a .suhs(>qiu'nt incunihrancer, or the mortgagor himself, desirt's 
 a sale, it may )m' granted ,is in any other cast^ : AV;'/- v. Jifdn; 12 (ir. 204. 
 
 The Crown cainiot he foreclosed, the only judgment that can he awardnl 
 where the equity of redemption is in the Cnjwn, is one authorizing the 
 

 MORTGAGE ACTIONS. 
 
 387 
 
 incirtgagee in default of paynu'iit to take posst-Hsioii nntW the Crown nIuiU Rule 348. 
 
 think proiKT to rwle«ni : /{(rir v. Attoriii/i-tifiifru/, 2 Atk. 223; Hnnii v. Koriu of 
 \lti'nKii-<li-ncml, 10 (rr. 4H2 ; or until the dt-ht should l)f satinfi(!d : //cr///'- v. judgment 
 [Winii'ii-diiii'ml, 8 Y. & C. 342 ; or, if the Crown consent, or do not ohjwt, aKainst the 
 
 11 Hale may he ordered : Heton, 1044; l',;:v(M v. Tuli-r \ Am: 470; 2 .lur>»'"wn. 
 
 H7()' liiHi'ifs V. Mimic, 1 Y. & C. C. C. 4; //iniccrk v. .\/t<tnif/-h'eiier(il, 12 
 
 w. K. riiiii ; yy",//,v/ v. y.'«v.v, i.. k. 12 Kn. sita. 
 
 A iiidi'tgiigei' of a railway is nut cjititled to enforce piiyment of liis Afortgagee 
 iiKirtgiigc, liy either sale, or fon^closiu-e of the railway, he is only entitled of railway 
 t(p liave a receiver, or manager, of the undertaking appointed : '■'"// v. A'/vV notentitleu 
 ami .\'ui:/'n<i /.'. II'. <'-. 14 (Jr. 4!t!» ; /'r/n v. W-'lhnul U. W. ('<,., II (ir. 455 ; ^JJ^.'^I''''' °*' 
 riinii'Hx V. ('(itirliniii. It. ir. ('(I., 25 lieav. (J14. But it seems a V(aidor of elosure. 
 11 right of way to a l{ailway Company is entitled to enforce a lien for luipaid y^h^qj. of 
 |i\irchase nionev, hy sale, or rescission of tlie contract : Wnlkn' v. IIVov, j^y ^^^^ 
 II. <(• /{. J{. IF. ('"'., L. H. 1 K(i. Iil5 ; Afarfinv. LdiiiIhii. rhollnnii .(' />"n'/' rights of. 
 
 '. ir. Cii., I2.(ur. X. S. 775; liut see tlie lii.f/i"/i i/ W'inrlics/n- v. Miil-llinils 
 .:. II', Co., L. H. 5 E(i. 17 ; I'<ll v. .\'<ir/liin,i]>fn,i ,f IS. J. It. \V. ('<>., L. |{. 2 
 Cliy. Kill, where the lit'U was enforced l>v tlie appointment of a receiver. 
 
 Tile right of a mortgagee to eitlier a sale ov foreclos.u'e, may l)e lost hy his Uiglit to 
 liaving sold, (ir parted witli, part of the mortgaged pr' I'erty. witiiout tlie con- "ale, or 
 
 the eciuitv of redemiitioii in the remainder has 'V''^" 
 
 currt'iicc of a person to whom 
 
 closure, 
 
 liecii ciiiiveyed. Hut this rule does' not apply where the sale has lieen made ^y|,j,„ ]^,f,j 
 under a power coi'tailied in tlie mortgage, or where tlie mortgage is of cliattc^ls i,y sale of 
 wliicli the mortgagee has a rigiit to sell without any exjiress power. Hut itpartofpro. 
 apiilies to a sale under a decree in a suit to which the owner of the unsold por- perty 
 tiim was no party : liniffiintl v. (htrhutt, 13 ( Jr. 57H, and see Cniwfdiil v. Arnnjnr, 
 ill. ')'() ; Mmixrii V, Hoiinti. 22 (ir. 27!l. 
 
 Wiiere the mortgaged lands are out of the jurisdiction, although the Court 
 may grant judgment for foreclostire : Paiict v. Ktfi; L. H. IS Kfj. 11H ; it will not 
 
 grant a judgment for sale : Strmuii' v. Itinlfnril, 15 Out. 145. 
 
 P(!rsonal 
 Where the writ, or statement of claim, does not claim any personal remedy relief 
 agairist the deh'iidant, the judgment is erroneous, if it contain any personal "luiuld not 
 iinlcr for payment of the mortgage deht, an<i such a defect was amended after V^' 'urected 
 the lapse of' four years: Cicl.rnuur \. Jiiillork; 12 (Jr. l.SH. daimod. 
 
 Where the judgment directs fori'closure, on default in paynient, a final order Where 
 may 1h' made in Chamhers, directing a sale in lieu of foreclosure, witiiout judgment 
 upiicaling from the judgment : Luflitt v. ( 'li^'r, 2 Sm. it ( !. 27H ; Finh v. Ciniiyii; f'"' 'oi'^" 
 I). B. .3 & 4 ; Thnmpmii v. HiulijUii, O. H. 25 ; hut usually th(! sale will not lie , ""for'sale 
 iittlered until after the mortgagor has iiad the usual time to redeem: T''""''*^ limy he 
 Mil LiiiDi (.11. V. RiiiiiiiIiIk, 2 (Jliy. Ch. 41 ; where the aiiplication is made hy ajiranted. 
 ilefendant he will he re()uired to deposit 8S0 to meet tlie exiK'use of the sale, 
 and this deposit will not Iw dis|)ensed with, although the .security he anijile : 
 Tliimijmiiv. .\li,viiii/iiii, 3 Cliy. Ch. 111. Hut if the plahitiff prefer it, the Hut if judg- 
 'Ifffiidant may Im- re<piired to conduct the sale in lieu of making the deiiosit. meiit is for 
 Koniierly the Court would not, after a flecree for sale, direct a foreclosure ^"^'f' f- f*' '• 
 witlidut rehearing the cause: MvC/ihiii v. Jiici)h,\) (ir. 50; except where the "" 
 silc had hcen attempted, and proved ahortive : (iimihill v. IhtrmiCK, 7 (ir. 440;' 
 iiitdlw JMii, 1 Chy. Ch. 207; (iiri/lfs/oin v. (,'ii)in, Jh. 212. In such a casii, 
 an order fur foreclosure is granted in ( Ihamhers on motion ; hut the mortgagor 
 must Ije alU)wed three months further time to redei^iu : Ih,; but in Onoilal/, v. 
 Hiirriiwi only one month was allowed. 
 
 After a judgment of foreclosure, an order for sale may be obtained, liy a 
 i-nhswiueiit iiieumlirauei'r. under Kii/i .3.50. 
 
 not 
 
 nintod, 
 
 
 554^. The Court may direct a sale of the property, in- «aio may 
 stead of a foreclosure of the equity of redemption, on such iuHteiuf o^r^' 
 terms as the Court thinks fit ; and, if the Court thinks fit, [^C.re. 
 without previously determining the priorities of incum- 
 

 888 
 
 COMMENCEMENT OF ACTIONS. 
 
 '-« 
 
 % 
 
 Rule 349. 
 
 Ordinary 
 time for re- 
 (iemption, 
 wlien 
 sliortoiied. 
 
 DefeiuliiiitH 
 when en- 
 titled to a 
 sale in fure- 
 closure 
 action. 
 
 Judf^nient 
 for ininie- 
 diate sale, 
 how 
 awarded. 
 
 brancers, or giving the usual or any time to redeem. 
 Cliy. 0. 428. 
 
 Some H|)ecial ground must be shown in order to deprive t\w mortgagor of tlw 
 ordinary wix months time to redeem: Riuiun v. Fitlfi'i; 4 (Jr. litS ; Swift v. 
 MiiiO'i; 27 (ir. 217 ; Niwimin v. Sclfc, 33 Beav. 522 ; and even wiiere an appli- 
 cation for Hale was made, in a foreclosure suit, by subsetpient incunihraiicen., 
 after the time allowetl them for redem])tion had exiiired, it was held that tin- 
 mortgagor was entitled to an opporttinity to redeem, l)efore a final onler fur 
 sale could be made : Trust and Lintn Co. v. Ri'ynoldn, 2 Chy. Ch. 41. 
 
 Where the writ claims foreclosure, the defendant is entitled to have tiie jiid);- 
 nicnt drawn \\\> for sale, o!i paying into Coiu't .IJKO ; and where a judgineiit 
 has been entered for foreclosure, a subsecjuent incumbrancer may al.so, oii 
 being Miade a party, at any time liefort^ the reiHtrt is settled, on milking a liki- 
 l)ayment, obtanion /)rnrijic an order for sale in lieu of foreclosure ; m'I' J{iil< 35». 
 The SSit is intended as security for the costs of the sale : see Jtitir .S4!(an(l noteN 
 
 On tiie Court being satisfied by evidence that tiie value of tiie mortgaged prci- 
 jierty was not sutticu-nt to pay the amount due to the |ilaintiff, and tiiat it was for 
 the benefit of infant defendants, an account wns dispensed with, and a jiidgiiiem 
 for immediate foreclosure was granted on the c(»n.sent of tlie infant's .'iohciton 
 Wdlvirhamtitoit iL' Slaffoid.shirc lUmkinij Co. v. (irori/r, 24 Ch. 1). 7"7. 
 
 A judgment for an immediate sale, witlu)ut ap)H)inting any day for re(lein|i- 
 tion, can only be ^'ranted on motion for judgment, it cainiot lie awarded eii 
 /iio'cifii . The motion may be made in Chambers, where infants are cdnceniwl : 
 see Rii/r 717 ; Ciiti/ci/ v. Cilhet, 2 Chy. Ch. 431 ; but in otiier cases the motion 
 nuist be to the Court. An immediate sale has been granted <jn the eonsent of 
 the mortgagor, and without tiie consent of the sub.seciuent iiiciiiiil)i'aiic('r.s: 
 Townxhii) of llnmilton \. Hteptunmn, 2.') (Jr. 1!I8; but Blake, V.C, reiM-atwllv 
 refused to make sucii a decree without the consent of the subse(|Ui-iit iiicuni 
 brancers, on tin^ ground that tirt equity of redemption migiit be wortiilesn, and 
 the mortgagor might have really Jio interest in the mortgiiged proiK'rty. 
 
 Wiiere a decree for sale was pronounced in Court, the Referee in Cliaiiilji'M 
 refused to entertain a motion f(»r a final order for sale, ix'fore the tiiiit' for 
 redemption had t-xpired : Budl v. Fi.^hcr, P. R. 51. 
 
 Where sale 
 is asked by 
 the mort- 
 gagor or 
 incum- 
 brancer, 
 deposit to 
 bo made. 
 
 Deposit to 
 secure sale 
 in mort- 
 gage cases. 
 
 •S49. If the request for a sale is made by a subsecjuent 
 incumbrancer, or by the mortgagor, or by any person 
 claiming under them respectively, the party making the 
 request is to deposit in Court the sum of $80 for the pur- 
 pose of covering expenses unless otherwise ordered by the 
 Court or a Judge. See Chy. 0. 429. 
 
 Chy. Ord. 42!), from whicli thw Rale is adapted, refpiind the depo.sit of "» 
 reasonable sum." Tlie usual amount recpiired Wiis .SKO, baton special applica- 
 tion liefore the sale, it was sometimes increased : Lnudim <(.■(.'. L. <(• .1. ''"• ^• 
 J/«/v/.vo», 7 I'. R. 4.50; 15 C. L. J. .57. But an application after the sale ha<i 
 taken place to increase the deposit would not be entertained, even though tn'- 
 sale had failed to realise the amount of the idaintiff's claim : Linidon A: V. I- 
 .1- .1. Cii. V. I'lilfnrd, 7 P. R. 432; 15 C. L..). 5,5. 
 
 By the form of indorsement on the writ in mortgage actions, tlie ainoiintof 
 tlie deposit tol>e made l)ya defendant served with the writ, in order ro si-iiurca 
 sale, is .SHO : see Form !» c. When the sale is applied for by .an (H-iginal dcfiii- 
 dant to the action, an application to increase the amount of tin- i|i>p isit caiui'it 
 be entertained, even though the costs of the sale will exceed ."<M0 : 'V-»,w ^• 
 Close, 8 P. R. 33 ; and it would seem that the same riih- v IM -ipplv U>Mh»' 
 quent incumlirancers ol)taining a sale under this Itiilv: bu: i.- iilaintm "la) 
 notify the defendant desiring the sale, to take the conduct ot it 
 
 Rulf 3.Vi. 
 
 ■ \.m f:\ 
 
:'5''?^'"r?,. w' .'5 ?'Jr^'.'W 
 
 MORTGAGE ACTIONS. 
 
 389 
 
 The (lepiMit will not he diH]icnHed with, even thougii tlio security be ample : 
 Thompsitn v. Afurinilai/, 3 Chy. Ch. Ill ; or the applicant l>e a truHte(> : MacheU 
 V. t'anijMI, 5 U. C. L. J. 117 ; and a defendant cannot claim a sale ap^ain^t 
 the consent of the mort^fagee without making the de]>osit : Titiilur v. W /il/cei; 
 H (ir. M) ; except in the case of infant defendants, who are entitled to a sale, 
 without the usual deposit : /{iiid- nf f'/ifi-r diiiadd v. Scnlt, (Jr. 4.51 ; Dtv- 
 ivniiii V. hV:.iii'mlil, !• (Jr. 371 ; hut see Wextrrn <'iintt<l<i Ltmn A- S. f'u. v. 
 Itiiiiii, i) P. \\. r)H7. Where the sale is at>ortive, the dejMisit is a])plicahle to the 
 paviiii'iit of tiie plaintiff's costs thereof ; ('iu-si'IUk v. Put inn n, L. K. 4 Kq. ir>f» ; 
 iiiiii wlieic the deposit was paid in l)y the mortgagor, and tlie sale realised enough 
 to jiay the cliiini of tiie plaintiff, hut not all the suhseipunt iueum))rances, the 
 iiiortgiigor was held not to he entitled tc» get hack tiie deposit, l>ut it was 
 (iirec'ted to he applied in pavment of the claim of a suhse((uent incumhrancer : 
 i;-Mrski V. liKili/, H J'. |{. 14(i. 
 
 350. An incuiubrancor inarle a party in the Master's J'""""- 
 office, and entitled to, and desirinj^ a sale of the mortgaged made a 
 premises, is to make the necessary deposit therefor before ll'veciosure 
 the Master's report is settled, whereupon an order may he^y'*5'",j|',["' 
 issued on /;;v<?r/;)fi directing a sale of the mortgaged premises "i'i>iyf"i- a 
 instead of a foreclosure, and thereupon the Master is to*'"^^ 
 eompnto sul>sequent interest, and appoint a time and place, 
 or times and places, for payment ; and all subsequent pro- 
 ceedings are to be taken and had as if the judgment had 
 been in the first instance a judgment for sale. Chy. 
 0. 45(5. 
 
 Rule 350. 
 
 
 Cannot l)e 
 
 , 
 
 dispensed 
 with. 
 
 
 Kxcept in 
 case of in- 
 fant defen- 
 dants. 
 
 
 .Vppliea- 
 tion of de- 
 posit. 
 
 \ 
 
 
 ■ . 
 
 Tile |)o\vers conferred hy Chy. Order 4.'>(i, fi-oni which this Itnlv is taken, were 
 not fxteiided under tlie former practice to the l)e|Mity Registrars ; and there 
 ;i|]|)('iU's to he iiotliiug in these Miilis to extend tiie powers iierel)y conferred to 
 Local Hi'i^'istr.irs, Deputy Kegistnirs, or I>cputy Clerks of tiie Crown. The 
 onlcr for sale does not come within the class of orders referred to in Rn/r 
 '£'>. \\] :i|i|)heiitions under tiiis A' /(//therefore sliould Ik? made to the Registrar 
 of the |)ivi>i(in in wliich tlie action is pending. 
 
 Tile //I" r/^;( should show on whose hehalf tlie aiijdication is made, and should 
 apostate that tlu? applicant is an ineumhrancer, niadi^ a iiarty in the Master's 
 i/ttici', wlio has proved a claim ; and that the Master's .oport has not heen 
 x'ttli'd : and siiould hi' aeconipanied Ity tlie certificate of the Accountant of the 
 Ittvmeiit into Court of the reipii.site deposit of .*iH(). 
 
 All application, after the sale has taken place, to increase the amount of the 
 <lt'|)osit is too late : Lniulnii <(• Ciinai/iini Lmii i{' .\i/<nii/ Cu. v. Piilfnid, 7 P. R. 
 4.S2. Such an application should he nuule hefore the order for sale has heen 
 acted on ; /.mii/dii d' < 'iliKn/iiiil Lmlil d' .li/rnci/ Cii. v. Mnm'siiii, 7 1*. R. 450. 
 
 If tile plaintiff deem the (h'liosit inade(|uate he may recpiire the iiicum- 
 liranctr obtaining the order for sah' to conduct the sale : see Rnk' .Sol. 
 
 Where tile sale realisi's sufficient to pay the plaintiff's claim, hut not the 
 ulaiiiis of siil)se(pient incumlirancers, the deposit will he ordered to he apjilied 
 111! account of the claims of the latter, according to their priorities : (^'-^oirnk-i 
 V. liiiitii, HI'. R. ]4(J. And where the sale proved aliortive, except as to one 
 parcel, which did not realize sufficient to pay the idaintiff's claim, the 
 ijepoiiit was applied on account of plaintiff's costs of sale : Coimllin v. I'atman, 
 L R. 4 K(,. t.^ti. 
 
 Although 11 iiKU'tgagee by (le|K)sit is not entitled to a .sale : see Rule 347, 
 note; yet a siih.sefpient legal mortgagee made a jiarty to the suit by the equit- 
 able mortgagee, is entitled to apply for a sale under" this Ruh : Ktrr v. lietbe, 
 l'2(ir. 204. 
 
 Powers 
 conferred 
 by Hide ;i50, 
 not extend- 
 ed to local 
 otticers. 
 
 I'rci'cipe for 
 sale, form 
 of. 
 
 Applica- 
 tion to in- 
 crease de- 
 posit. 
 
 Deposit, 
 how ai)- 
 pUed. 
 
Bl? i 
 
 890 
 
 COMMr.NCKMKNT OP ACTIONS. 
 
 Rules 
 361-303. 
 
 I'laiiitifT 
 may ro- 
 qiiiro (!(>• 
 fondant 
 aHking Hale 
 to conduct 
 It. 
 
 I'laiutiir 
 may liiive 
 reHervcd 
 l)id fl -1. 
 
 :<j!(l. If before or upon tlie deposit to obtain a sale 
 being made, th<3 plaintiff preforH that the sale be conihictod 
 by tlie defendant desiring tlie sale, he may so elect ; iiiul 
 he is thereupon to notify the defendant of such election. 
 The notice may be to the effect set forth in Form No. 82 
 in the Appendix. Chy. (). 480. 
 
 Wlifio till- (U'ffndjiiit claims a Half cimtniry to tlic wisli of tlic jilaintitf, tlic 
 lattiT may protect liim.sclf a^fainst tlic murtKaj^cd |iro|icrty licinj,' sold fdr 
 IcsN tlian his claim \>y getting a reserved liid fixed, and in the event of tln' 
 .sale i>r<iving aiiurtive, lie may obtain a final order for foreclosure : sec iiiitctp 
 Rule 347. 
 
 As to wlieu tlie plaintitT may ilppiv to increase tlie deposit, see note tn 
 /.'('/(' 34! ». 
 
 Affidavit 
 
 notfce"de- •**"^-« Upou the plaintifl"8 iiling in the office in wliicli 
 posit to be appearance is required to be entered a note of such election, 
 dofcndant." and proof of scrvice of such notice, the defendant making 
 
 the deposit is to be entitled to a return thereof. Cliv. 
 
 (). 481. 
 
 ]5efon> tlie money can he ohtained proof will have t.o lie given to tlic .Ac- 
 coimtant of the <lue filing of the notice of election. The production of an 
 office copy, witll a certificate of its lieing fih'd would seem to lie the liiupcr 
 proof. 
 
 lu default 
 of redeinp 
 tion final 
 order may 
 lie granted 
 in Cham- 
 bers. 
 
 Applica- 
 tion for, 
 how made. 
 Affidavit of 
 non-pay- 
 ment to lie 
 produced. 
 
 Certificate 
 of bank 
 oSicer. 
 
 •t«S*fi. In default of payment beinp made according to 
 tlie report in a foreclosure or redem})ti()n action, a iiiial 
 order of foreclosure may be granted against the paitv 
 making default on an ex parte ap[»licati()n. Chy. 0. 451. 
 
 Judgments in mortgage actions in the usual form, ure to lie read as if tlii* 
 /'('/'■ was incor|iorated therein: see liitli 77f). l>v the terms of this /^((/r it iscmi- 
 fined to foreclosure and redemjition actions, liut it w,i-. always tlie prMctictMiiidcr 
 the Chy. Ord. 451, which was in similar tenns, where the judgment was fur 
 sale in default of redemption, in like manner to oiitaiii a final order for sale; 
 and see liii/e 133. 
 
 A final order is, generally speaking, necessary in all cases where a judgiiiciit 
 directs anything to lie done, upon the default of a party in doing a given act 
 by a future day ; the final order lieing the judicial determination tliiit tii'' 
 default has in fact taken place. 
 
 Application for Final Order. The ajiplication may be made to liie .Ma>ti r 
 in Chambers, or to any local officer havinglike jurisdiction. 
 
 In order to obtain a final ordtr for default of redenijition in a mortgage actimi, 
 it is necessary to jiroduce an office copy of the judgnit nt, an ofiice copy ef tin' 
 re]iort, if any, the affidavit of the [larty to be redecTuetl of non-payment, ami 
 non-receipt of rents, and negativing his being iti possession ; Scutl v. .Ueltiiintd!. 
 1 Chy. Ch. 1!)3; Iliir/onI v. Liinihin-iin; Ih. 275; i'rn.s v. f'"/.v, L. H. Ilf'liy. 
 ()45 ; or in case any sum has been paid sinci' the account was taken, and licfdie 
 the day apjiointed for redeniption, showing that notice has lieen given inirsiuiiit 
 to Rnh- 3(15 ; or in ca.se tlu^ party i.s in possessi(<n Khowing no receipts, iicviiiiil 
 tho.se for which credit has been given in the account. For fonns of affidavit.'*, 
 see Leggo's Fcjrnis, 2nd efl., Nos. (>84-(i.S(J. 
 
 There must also be produced a certificate of the cashier, or other like offici-r; 
 <'(Vii/il>Pl/ V. (/(initt, 1 Chv. Ch. 2.5,5, of the Bank, where the money is aiipointcd 
 
MORTGAGE ACTIONS. 
 
 891 
 
 Aindavit of 
 uoii-i)a.v- 
 iiiuiit, by 
 wlioin tube 
 iiiadu. 
 
 tii lie jiiiid, "f lum-jiayiin'iit of thf iiionfy, Ix'forc, cm, or sincf, the day Rule 303. 
 aiiiHiiiiti'il Uiv piiymt'iit. : Farir/l v. •Sla/yrn, 1 Chy. Cli. 2((l ; duly vcritiwl by 
 nttiiliivit. 
 
 Affidavit of Non-payment. WIktc tlim^ arc several parties entitled to the 
 iiKiiK'V directed to lie paid, the attidavit of iioii |iavnieut should hv made hy 
 all : Aiiiils V. IIV/.s"», 1 VUy. Ch. 217; Klnmiinl v.' Yjn-b; (iO \.. T. N. S. :W(t ; 
 but where one of the parties is out of the jurisdiction, his afKdavit may be 
 (lispcnsed with; Liimtiii v. Kiikimtiiik, 2 (Ir. {\'l'i\ ('mni/ci- \. W'l/ldr, 1 (Jr. 
 MS; and si'c /''nt/i v. Ciki/.i; .VJ I;. 'I'. N. S. 7'M, where the affidavit of the 
 iijaiiitifff soliuitor was aecepted ; Kiniiiiinl v. )'i>rhi' nn/iiii ; where a sole 
 |iliiiiititf resides out of the jurisdiction, the afti''avit of his a^'ent will be 
 aicc|)te(l, and in such case the affidavit should show where the custody of 
 till' iiiertj,MKe hits been: It'ir v. S/kw, 1 (Jhy. Ch. 2(1!); and where, in siicii 
 a i,iM', tile affidavit is niade by tin; solicitor of the plaintitV, it should show 
 that tlie plaintiff has no other iiffent within the jurisdiction authorized to 
 ivciive the money : Tui/lcr v. CiiHilint, 1 f'hy. C'ii. 240; but see MhikIii v. 
 Ti/imI, t'l v. K. 'M'A ; (iillin v. Itmnitn ('iithnlii- HiiisviifKil ( 'ur/xuKlinti, ~ ()l\t. 
 14ii; MrMiiUni V. /'"////, 12 Out. 702; V.i (hit. 2!t!». An a^ent should state 
 that lie is authorized to receive the money : /'mnrK v. M( iiiiiiini, 1 Chy. (!h. 
 L'l'."i; hilt it is not, however, necessary to produce the agent's authority : 
 H.iilvhljlf V. I'l'jl'i/i 1 CMiy. Ch. ;{02 ; and where the party to receive the 
 iimuiy is a iMirpiiration aggregate, the affidavit of an oHicer of the company, 
 iiiiht show that iie is the jiroper officer to receivi' the mortgage money ; 
 \\'r\hiii ,f.<vv/ (■(/;(('(' Ci). V. Cti/iiiii/, 1 Chy. Ch. 227. 
 
 The affidavit of non-j, lyment must be made after tiie day apjiointed for 
 ivih'iiiptioii : Uliiiii/ V. Keiuicilii, 2 Ch. Ch. \h'A. 
 
 When Notice Necessary. The motion for a final order is usually <:r /mrtr : 
 llniilrr.'i'iii v. t'ninni, ] Chy. Cli. 21(7: Jiiili 'X>'.i. liut where two years had elajised 
 ''iiuc the default, iiefore the motion was made, notice was reipiired to liii 
 Mived : Kirkrliiff/i-r V. SIti/nri/, 2 Chy. (^h. '(2; AiiIikjIi v. <J,rli,ir,l, 2 C. L. .f. 
 'Mi; and wliere it appeared by the rejiort, that the defendant had not 
 nocived nutiei' of the proceedings in the Master's office, in a case in which lie 
 was entitled to notice, notice of the motion was re<|uii'e(l to Iw served : MrCur- 
 iiii'i v. Mii'i.iiiufl.-, (j P. K. 20X ; and wliere the a(;count lias been changed even 
 ii/'/ii' the day appointed for redemjition, notice should be served : /'(n/iiiini v. 
 Smitli,'2C. L, .1. I(i7. 
 
 The order maybe refused where 
 money before the day fixed for 
 (145 ; <>iirlivl: v. •/(irh:i(in, 4 Heav. 
 
 Wlien to be 
 made. 
 
 Notice of 
 motion 
 wlion ne- 
 ceHsary. 
 
 3» 
 
 On what Grounds Final Order Refused. 
 
 thi' account is changed by the receipt of 
 rcilciiiptiiin : /'crcv v. Ca/cf, L. I{. (1 Chy. 
 i:i4. 
 
 Where the mortgagee is in (Kjcupation, or receipt of rents, he should be 
 diaijfeil witii rents up to the day fixed for redemjition, or a new accomit 
 must 1)1' taken, and a new day appointed for payment : /'//»' v. Slm/rr, ] 
 
 Kinal o 
 
 when 
 
 refused. 
 
 wliere ac 
 
 count 
 
 changed. 
 
 ler 
 
 ■ay appon 
 I tliat this 
 
 Chy. (;ii. 2."il ; and it was held that tliisnuist lie done ev(^n where the plaintiff 
 swiirc lie was in occupation merelj' as a caretaker: I'lnniin'r v. '/'niiilinsdii, 1 
 fhy. (!li. 2,'}.') ; or where a rec«'iver had been apjioiiited : •/I'lniti-FiiKt v. Xiiil- 
 horn, 31 Ch. I ). 5(10 ; M L. T. N. S. 42(», aflirmed by C. A. ; 32 Ch. J ). 082 ; I'int v. 
 Xi'h;lsii,i, SO L. T. .T<iur. 374 ; but see iiiilc Riilt' ]',H), note : /finnr v. S/rji/iriis, 
 ;iL'f'li. 1). 1!I4; 04 L. T. N. S. 2.30 ; I/olt v. Iliv,,/,; 'm L. T. N. S. rm. 
 
 Hut the plaintiff's going into po.sse.ssioii and receiving rents, ((/'^-z' the day 
 i»|i|«iiute<l for payment, (ItM's not affect his right to a final order : I'lirluuni v. 
 '^'iiith, 2 C. L. .1. I(i7 ; <inrnxhivlds v. Iilnckic<m<l, 1 Chy. Ch. (iO; Countohlt' v. 
 ^/"ic/.A, 5,lur. N. H. ;«1. 
 
 NViiere liefore the day ajipointed for iiaymeiit, the office of the bank, at which llefused, 
 the money is made payable, is closed, a new day must l)e ap|i(iinted : IHikj v. where bank 
 '■''»mi\\ Cliy. Ch. 274. So where a Sunday was apiiointed for jjayment, tiie "losed. 
 hiial order was refused : Ilnli'iimh v. Leath ,'^ V,r. 44!t. 
 
 where it appeared tliat the decree was erroneous, a final order wasOrjudg- 
 rcfimt'd: r,i„ii,ieiriiil linnh v. (Irnham, 4 (.ir. 410; and .see Mitr/icll v. Strathy, mont 
 ■-H(!i'. 80. erroneous. 
 
892 
 
 COMMENCEMKNT OF ACTIONS. 
 
 'TV* 
 
 ^ 
 
 '1 
 
 'i 
 
 Rule 383. 
 
 Deatli of 
 iiinrtKa»<(!0, 
 fITcct of. 
 
 Crown can 
 uot b(i foru 
 chmeii. 
 
 Effoct of 
 tliial order. 
 A l)ar t'l 
 ri^lit of 
 ruil(Uiii)- 
 tloii, 
 
 UnloHH 
 
 inortKatif'o 
 
 eiiforcd 
 
 pavmeiit of 
 
 iiiortniiHo 
 
 tlebt. 
 
 OpeniiiK 
 
 forooloHiire 
 at tlio ill- 
 stniicti of 
 the iiiort- 
 Kasor. 
 
 Not oiieiuid 
 as aHainst 
 imrcliaHcr 
 from iiiort- 
 KiiKee ex- 
 oeiit whom 
 fraud 
 shown. 
 
 Wliou 
 riKbtK of 
 tliird iiar- 
 ties do not 
 interveiio, 
 it may bo 
 opened. 
 
 Kvidence 
 ro(iuired. 
 
 Mortsa«or 
 redeeniinq 
 after mcgne 
 incum- 
 brancers 
 have boon 
 forecloHed. 
 
 Purcliaser 
 of equity of 
 
 WlifH' ft Hcilc mortKiifff't', "I* ont' of Hcvfral joiiil iiiortj^ai^fCH, dicH licforc tlm 
 (lay ap|><)iiil<'(l for puynit'iit, iinlcNNtln- jiid^niu'iit providcM in tlic hitii r citst' fdr 
 paymt'iit to tli»« mirvivorH, a nt-w account miiHt Ih- taken, and m new dny 
 ap|Niinti-(l : IUii(kliii,'u v. <'<iiiii', 2'2 licav. (114; h'iiK/s/'iiri/ v. /'i.//., ,s \V. )( 
 110. 
 
 Where tlif ('iitwn is entitled to the e(|iiity of redemption, ii tiiial order i if 
 foreclosure cannot he ohlained, l)ut merely an order autliori/.in^,' the iii(irtKii)f,i. 
 to take poMMesMion until the Crown muy see tit to redeem : /hum v. Mlmin'ii. 
 >iiiiirii/, 10 (Jr. IM2, or the se(Hirity lie sulislied : //ni/t/r v. Attunii'ii- 
 ilniiiiil, 'A Y. it (!. 'M'l ; Setoii, KUI. .V sale may he ordered where tlieCnmn 
 iH iiitcrcHted : lliiiilcll v llii'<, L. H. 12 Va{. \VM\. 
 
 Effect of Final Order. Tiie final order of forecdosme, so loni,' un it reiii:iiii> in 
 force, is an ahHolute liar to the parties foreidosed from chiiniiiit,' the ri>,'lit In 
 redeem. Hut it is no liar to the mortf,'aKee, as lout,' as he is in u po-itiini to 
 restore the mortj,'-aj,'eil propi'i'ty, from sn kmj,' toeiil'oice payment of theiimit- 
 ijage debt: Lm-hliurl \. Ilnnlil, !• Ileav. .'Mil; Mminfii v. /fni/.ts, L'L'to'. :i7'.i. 
 Hut if, after aHlial oriler of foieeluswre, he takes proceed in^,'s to enforce paviiiin 
 of the debt, that i/isii J'liil'i operates as an opellill^,' of tile foi((losinc, Hill 
 entitles the niort>{'a>ror to a reconveyiince on payment of the money ; /'"/hc/v. 
 Ilciiil III-, 27 Hi'av. 'M\\ ; 2H Henv. IJIl. If, however, the mortgagee, by his own 
 act, uiiauthori/ed by the mort(^at,'or, lias made it impossible to restore tiieiiinrt- 
 ^faired jiroperty, proci'edin>,''s to enhpi'ce payment of the delit will be stayed mi 
 the application of the mortj,M|for : /'<. ; /'/"• lirili'-li it' Ciiiiin/iini I.hkh A' liii-'\i- 
 Dim/ Cn. V. Will III inn, l;'"i()lit. ItdCi. 
 
 A final order of foreclosure obtained aj^ainst an assij^nee of flie eipiity nf 
 redemption for the belielit of creditors, is no estoppel to a slllisei|iiellt actiuli 
 
 hy him on l)ehalf of the ere litors <if the iiioitKiiK'"'. under It. S. < ). c. 121, s. 7, 
 s.s. 2, to set aside the luortjfajje for fraud, where no siicii issue was r,.isi'(l in 
 the action for fondosure : iiins.s v, Unml, 111 ()iit. 'l'.V.\. 
 
 Opening of Foreclosure at ths Instance of the Mortgagor. I'.viii afti r ;i 
 final order has lieeii obtained, the inortL,'a),'or may apply to set aside tlie (niici-, 
 and to lie let in to redeem ; and this relief was >,'ranted even as aifainst a pur- 
 chaser from the mort^'ajfee after the iinal order of foreclosure ; I'liniiilull v. 
 Hiili/liinil, 7 CM. I). lliO ; 21! W. U. Kid ; Jnhiistnii V. ./iihiisluii, II I'. I!. 2.MI; Init 
 it has been said that this relief can only lie firanted where tlie tiiial order li;i- 
 been <ibtaiiied bv actual, positive fraud, or under circumstaiK'cs of oppres.-jnii ; 
 I'lilch V. Willi/, li. H. HCliy. 203, 212 ; and in Trinihi Cullnir v. /////. 2 Out. 
 348; 18 (^. Ii. .1. .S87, the relief was refused as a.j,'ainst a piinOiaser trmii tlir 
 mortKajree after the final order, there beiii;,' no such circumstances; Init tiiis 
 citse was subse(|ueiitly reversed in appeal on the ground of irregularity in tin 
 iiroceedings ; the sale having taken place under a decree nixi. whieii had mt 
 iieen made alisolute before the final oriler was obtained ; .S. <'. lOOiit. ,\pp. V.\. 
 When the rights of third jiarties do not intervene, and the plaintiff can In' 
 replaced in the same position he occupied before tlie default, and recoiupiiised 
 for any damages he may have suffered, and there is a reasoiiaiile pinspitt fer 
 payment shewn, the foreclosure nia.y lie opened and the time for payiiniit 
 extended: WiiihliU v. Mfi'itll, 2('liy. ("h. (12; liut .some reasoiiaiile exinsc 
 must be shewn foi mt redeemiim' at the time jippointed, and the fact that tin' 
 jiropertv is of mucii greater value than the amount due should lie estalilisliid ; 
 Jd/iiimtii V. AHli'iriiliii', 2 Chy. (Hi. 2.-)l. The fact that the iiropirty liiis 
 increased in value, is not alone a sutiicient ground for ojiening the fureilnsiiri': 
 Mili:i V. Ciimiron, (I P. 11. r)02 ; 1!» (.'. L. J. 2.V) ; ',i ('. L. '!". .'<(i1. In /Vn// v. 
 AKhhriilijc, 12 (Jr. 105, the forecdosure was opened after a lapse of eigliteiMi 
 months, the mortgagor being illiterate, and having no solicitor, and not uiiili'i'- 
 standing the proceedings, and the proiicrty appearing to be worth three tiiiii'S 
 the amount of the incunihraiice. Wliere, after a final order of foieclosiiii' 
 against sulLsecpient incumlirancers, the mortgagor redeeiiiH; that has the effect 
 of opening the foreclosure as against the subse(|ueiit incumlirancers: Wi'"' v. 
 Smith, 14 (4r. 2r)b. .V. C. l(i (Jr. .52; lio-i- v. Uridiiiniin, (i I'. K. 2.'{4 ; Ottir v. 
 Lord Viinx, 2 K. J. (i.'iO ; (i I). M. & (J. (I.W; and see Lidhnmk v. J'n.'^.viiiiii, "i!' 
 L. T. N. S. 300. In UUIiard v. Canii'hcll, 7 (Jr. !)f>, a final order of foreclosiire 
 
,./Iy 
 
 MORTOAOR ACTIONS. 
 
 898 
 
 wif M)t a><i(lB at the iiiHtanco of n inirchaMcr of tli<> )>(|iiity of rfdt'inptiuii Rule 364, 
 nfiuUnlf till' Itiit without notion nf it, out in Itiilmon v. Ariiiu, '2U (Jr. 40", xwh t'odeuip- 
 rclic'f wan rcfiiHi il. tlon. 
 
 Termi on which Foreclosure Opened at the Instance of the Mortgagor. 
 
 'I'lif ttTiiis on wliK'li a fori'cloxnrc in opi'iiiid art' in tlir discretion of the f'niirt. 
 Where tilt' Hcciiritv ix not ainiilc, the niortKaKor may I'f ri'iniirctl to pay tht- 
 iiiterent and costs l)v an early day, and six niontlisniav he allowed for tlie |iav- 
 iiieiit iif the |Pi'in(!i|)aI: Fisher on MortKcs. Ih'd e(^. 10,'');t. \\\\l where tlio 
 .finrify In ainph', the costs of the action, and of the application, may l)c (irdcrt«l 
 til lie paid forthwith, and the time extended for payment of the )irincipal and 
 interest, tlie defendant hein^f oharK<'d with interest on the |,'roHs amount of the 
 princirial and inteiest, for the period of the exttiisiuii : see Trivitii Cnlhiii v. 
 //,//, H Out. -JHd; 2(»(;. L. .1. :W.I,;<H.fi; l/„lf(,nlv. Vnti, I K. k.).i>77\ Whi'tHr/il 
 V. llJirrts, T-li.r. N. S. llidH ; and see I/iiran/ v .Mit'urii, 1 Cliy. Cli J", and 
 utlierea''eH k\xm\ in note to Hnlr \',\U. 
 
 Opening of the Foreclosure by the Mortgagee. .Sn hmK as the mort^aKii' is 
 ill a |iiisitiiiii In restore the niortua^fed property, lie may at any time, oiieii the 
 fiirecliisiire liy enforcing payment of the deht. Ihif if. .'ifter he lia\e iilitained 
 ;i final (il'iler, he lias parted with the mortj,'ai,'ed estate, ur any part of it, sk that 
 he is iiiit ill a |iositioii to re convey, he will he restrained frcMi ncuverinj.' the 
 'lelit ; L'li'kliiirt v. Ilarihi, !» Heav. H4!l ; (inirlanil v. >i'iirhit/t, \'.i (ir. "iHM ; lliiiu- 
 ii'tmy.didl, U'tiiv. 417 ; Imtsee /ia/il v. '/'Iioin/iniiii. KiClr. 177 ; Imt theniakiii),' 
 it :; iirirt),'a;,'e hy the mortgajfee on the niort^'a),'ed estate, will not prevent him 
 tnilii ii|ii'iiiirs' the foreclosure liy suiiiK for the niort^fa'/e delit, if at tlie time of 
 liis liriiiK'iliK the action, he has paid otf the mort},'ap'. and is in a position to 
 rei'diivey ; .l/ioi.ir/i v. Hnii^n, 'i'lCrr. 27!'. 
 
 .\ llliprtt,MJ,'ee who has exer(MSed his pnwil nf sale, where tiiere is a personal 
 lialiility til pay the iiin t^'aRe ihlit, is entitled to sue for the deHcieia^v ; the 
 fact tlial the iiiiiitKa^'ee has acipiired the land since the sale, is no <il).iection to 
 his riiflit til icMiver; /''// v. ///'/vi;/, 14 Out. -'71.*. In the abseiu'e of any 
 iilijectioii to the sale under the power, the acipiisition of tlie estate hy the 
 iiiiii'tgaKee vMiiild not give the mortKa^for any new ri^'ht of redeni]ttion. 
 
 '<t"54. In the event of tlie purcliaHe money l)eing insuf- 
 tit'ient to pay wlint Ima l)een found due to the phiintiff for 
 principal, interest, and costs, auhstniuent interest, and sub- 
 sequent costs in an action for sale, the plaintitl' is to be 
 entitled (where the mortgagor is a defendant, and such 
 relief is iirayed for), to an order ex. fxwfe for the payment 
 nf the deficiency. Cliy. (.). 455. 
 
 Where a personal order for ))ayinent is claimed liy in<lorsement on the writ, 
 that relief may now he awanled liy the ,jii<l>,'iiient in the first instance, with- 
 iiiif Wrtitiiij,' fur the ascertainment of the (leficiency : see Forns 182, ]H'X 
 
 Where the jiidt'iueiit is for forech)snre, accompanied by a jiersonal remedy 
 fur iiayineiit <if the niortpaRe delit, if ue .•ortKa^^ee, after olitaining a final 
 iinlerfdr foreclnsiire, enfonie the judgment for payment, hy issuing execution, 
 ur otherwise, lie thereliy opens the foreclosure. If he have, in such a case, 
 piirteil with the mortgaged property after olitaining the tinal order, any further 
 priiceediiiifs to enforce tht; payment of the ilelit will lie restrained on motion : 
 >«' ItiileXi'.i, note. 
 
 The order for payment of deficiency can only he granted where there is a 
 lirsonal lialiility t > pay. Where there is no contract to jiay the di^ht iietweeu 
 'lie iilaiiitiff and defendant, or no jirivity In'tween them, tiie order will not he 
 iTaiited, even though the defendant have agreed with st)me thirrl party who is 
 li;ilile t(i the [ilaintifF, toas.sume and pay the jnortgage debt : ('hriatii' v. howker, 
 I'Mlr. 1<)<); 10 U. C. L. .1. Kil; Chtrkaon v. Srott, 2.") (ir. 373; Norria\. 
 M((klow\ 2H (Jr. .'i34 ; and other cases cited in note to Jiiiti- .347. In the absence 
 
 'I'erniH tin 
 wliif'li fore- 
 (,'liiHnre 
 opiiiuiil. 
 
 0|ieiiing 
 fiirecldsiiro- 
 liv iiiiirt- 
 WaKtio. 
 
 rannet bo 
 11)111110(1 liy 
 iiuirt«agoo 
 it not in a 
 lioHition to 
 ru-cunvey. 
 
 Order f<ir 
 liaynieiit of 
 (leti(;iency 
 may lio 
 obtained, 
 whon. 
 
 Judgment 
 on coveii- 
 niit, (111 
 piuveipe. 
 
 Hnforcing 
 judgmoiit 
 on coven- 
 ant after 
 foreclosure. 
 
 Order for 
 liaynieiit of 
 deflciency, 
 only grant- 
 ed when 
 there is a. 
 personal 
 liability. 
 
 3» 
 
 <!ZiL 
 
 
 <1 
 
 
 \ 
 
 S|! 
 
S94 
 
 Rules 
 35S-3S7. 
 
 COMMKNCEMENT OF ACTIONS. 
 
 of an express coveiia- n in tlif mortgage, tlic law will iiiiiily aeontruct to repay- 
 SiMon V. Sutton, '22 Cli. D. 511 ; 4« I-. T. N. S. !>"> ; Imt there must he evidcii'ci' 
 of a del)t, or loan : Hull v. Murlfii, V. C. (J. H. 584; Pairmmi v. //i//(inil,'>: 
 
 V. C. il K 202 ; Jark-Koii v 
 U. C. <^ B. 3(17; N. (\ X)V 
 
 YiiiintniK, lit C. 
 C.</. B.2K0. 
 
 15. 5S4 
 J'. :«I4; 
 
 •/lie km III V. Ynnmiin, ?S 
 
 Where ac- 
 count 
 changed 
 after order 
 or report, 
 notice of 
 credit may 
 1)6 given. 
 
 A mortgagee who has exercised his jsiwer of sale is entitled to sue for any 
 deficiency which may remain due after dedncting tlie p-.-itceeds of the sale, 
 and the fact that the mortgagee has again acquireil the land is no ol)jecti(mt<i 
 his .'ight to recover: l'i;i!/ v. Hnhsmi, 14 Ont. 272. 
 
 Where a mortgagor who has parted witli his ecpiity (»f redemption is suwl (in 
 his covenant to pay tiie mortgage dettt, he is entitled, as against the assigriH- 
 of the efjuity of redemption, to a lien on the mort>,.iged land, if still in th.' 
 hands of the mortgagee, for any snni so paid, if the assignee of the equity uf 
 redemption has agreed to assume the mortgatfe : llniiiiUon PrnvUlriU L.A-I. 
 <.'ii. V. Smith, 17 Ont. 1. 
 
 •{«5'1. Where the state of the account ascertained by an 
 oriler, or by the report of the Master, is changed by pay- 
 ' ment of monej^ by receipt of rents and profits, by occu- 
 jmtion rent, or otherwise, before the final order for fore- 
 closure or sale is obtained, the plaintiff, or other party to 
 whom the mortgage money is payable, may give notice to 
 the party by whom the same is payable, that he gives him 
 credit for a sum certain, to be named in the notice, and 
 that he claims that there remains due in respect of such 
 mortgage money a sum certain, to be also named in the 
 notict'. ^ Chy. 0. 457. 
 
 Notice of The notice of creilit must he given hefore the day for payment arrives: 
 
 creditnuiKt Knott iiiijer v. liiirhrr, 1 Chy. Ch. 25S. Notice uf credit of payments, or rents. 
 he served which have heen received after the dav fixed for redemption, need not l»' 
 neioreday ^jy,.„ . ^ce /ic/-' IKi note. Such paymeiits do not affect the jilaintitfs rijrlit 
 
 to a final order, unless indeed thev amoimt to a total extingiushnieiit of tin- 
 
 deht. 
 
 Wiien notice has heen didy given iukUm' this /<«//, the fin.d cirder niiiy In' 
 ohtained notwithstanding the alteratiim in the state of the account, witlimit 
 appointing any new day. 
 
 Final order liiUl. Upon the final order for foreclosure or sale being 
 granted, applied for, if the Judge thinks the sums named in the 
 notice proper to be allowed and paid under the circum- 
 stances, the order for final foreclosure is to go without 
 further notice, unless the Judge directs notice to be given. 
 Chy. 0. 458. 
 
 See notes to Ki'lf 3.53 ; in jiractice that llnlr has heen construed as authori'/.in),' 
 a final order for sale, or foivclosure, iiccording as the jutlgnient might lie fin' 
 Hale or foreclosure. 
 
 Party re- :t57* The party to whom the mortgage money is pay- 
 suniHaVter able, may apply in Chambers for a reference to a Master, 
 may apply' or for an appointment, to fix such sums respectively; antl 
 
 of pay 
 inent. 
 
MORTGAGE ACTIONS. 
 
 895 
 
 in the latter case either upon notice, or ax parte, as the ^jj^^®|gg 
 Judge thinks fit ; and the order to be made thereupon is f„r'„e^yjny 
 to be served, or service thereof to be dispensed wit!:, as the [oj^^f'^'^J- 
 Judge directs. Chy. (). 451). 
 
 ;J5H. The party to whom such notice is given may ^PPlv J'jJ.v'ei, ^itii 
 in Ciiiuubers for an appointment to ascertain and fix the notice of 
 amounts proper to be allowed and paid, instead of the Jipiliy.' "'"'^ 
 iimounts mentioned in such notice ; or for a reference to a 
 Master for the like purpose ; and in case the Judge thinks 
 a reference to a Master proper, the same may be made ex 
 portt; unless the Judge otherwise directs. Chy. 0. 4(J0. 
 
 !J5!>. In an action for the foreclosure or sale of the i^,V,','°',',t f^r 
 equity of redemption in any mortgaged property, or for 'i^i'inH in 
 recovery of possession thereof, for default in the payment InsVaimen't 
 of interest, or of an instalment of the principal, the defen- pail'or'in- 
 (lant may, [before judgment, mov(3 to dismiss the action fj-y''^*]^""^-^' 
 upon i)aying into Court the amount then duc^ for principal, missed on 
 interest and costs. Chy. 0. 461; R. S. 0. 1877, c. 51, an-."irsana 
 s. 71. 
 
 costs. 
 
 siikf of j-Ti'iitcr 
 
 lint it lias ltul'-:W 
 
 Till' Winds ill l)iM"k('ts arc lu'wand have l)i'cii insci'tcd for tlie 
 cii'iiriiess. 
 
 After jiiil),'iiii'iit /!ii/( ;}(>0 applies. 
 
 The lliih in terms is fuiifini'd to actions for foreclosure, or sale, 
 Ui'ii JH'ld tiiiit a iiioittrafTor iirin^liiiK' an action for re leiiiption, is within the ni>p''es. to 
 f.|iiitv of this /!i'li : Moon v. Mirritt, (Kir. 550 ; Itnnnm v. Fri'jik, L'l (ir. 104 ; actions fur 
 liut sec ,■',»'/■-(, TiiIk \. Hiiitoii, S Ont. Ajip. .5H ; hut a phiintiff chiiniiiiyr tl>e J.'",'„ "''' 
 lifiH'titofthis /.'/'/'■ is not entitled to six months for payment of the instalment 
 in ilcfiuilt : Ihiniiiii v. Fralii-k, Kii/irn. The /lii/i is held not to apply where 
 tlifiiiiirti,M>,'ce is seekinir to enforce a power of sale : /'oln liyoii v. Ilitlf rim/ton, 
 sr. L. T. 141. 
 
 Kiiiiiifily when the principal money due under a inortKaKe was not paid off Mortfjiit^oo 
 lit the (lute at which it was (covenanted to lie paid, the niortgajfee was entitled ''rinKinK 
 ty six iiiDiitJis" notice of payment, or six months" interest : l.iitsluiir v. /am/.v, '^",V"iI,hn" 
 I'luke, V.C. 7 •lune, 1K77 ; and see Rf //onston, 2()nt. S4 ; Traxl A- Limn I'u. v. bjx months' 
 liiik^V. \{. i!(i;{ ; Arililiiilil V. /Ini/iliii:/ et' /.mm .{"■suciK/iiin^ 15 Out. '2'M ; notice notlcu, or 
 »iis not iicccssaiy where the six montli's eicdit was paid : Jolnisoii v. /i'iv(;i.'<, six montliH' 
 'il. 1.. T. N. S. IS ; liut a mort!^:aKee hriiiKinf,' an action for sale, or foreclosure, interest. 
 eiiiilil iiiit insist on ffettint,' six months" notice of payment, or in default 
 thcivdf. si\ months' interest; Lilts y. Iliilrhlns, L. K. l.'i K(|. 170 ; lir Alcoik, 
 fr>';„lt V. /'/-,>/«, -IW ("h. 1). X-l : 40 L. T. N. S. 240; nor could a niort^'aRee 
 wliii priivi'd his claim in a i>artition luition : Hf IIdhxIuh, l! Ont. 84 ; and .see 
 l'l f .1/ .«, /..,■ , s. Srin/I, ;u ("hy. I). 00 ; 54 L. T. X. S. 40. Tliis ri^dit to six 
 iiiiintlis ii'itice, or six months' interest does not exist as revrards mort>,'a),'es made 
 :i!t('r 1st .Inly. IHSS, unless there is an express stipulation therein to that effect : 
 s'f "il Vict. c. 1."., s. L' (<). ) 
 
 I imii default in payment of any instalment of princiiiul, or interest, the in default 
 :iii)rl'.'!i;rec li:is a rii,dit, without any express stipulation to that effect, to call in of pay- 
 tnc will,], amount .secured liv the mort>faKe : r„m,-ri>,i v. MiRtif, 'A iW. 311 ; ment of in- 
 '«it tins li^fjit may he (pialiHed hy the exjircss stipulation of the parties, as, for "A'^JV',""'' 
 I'lstiuicc, where there was an express provimo that in default of payment of any a„',IIu"„t 
 iiistulmciit of interest for six nmntiis, the whole principal money should become Hecurod Im- 
 
 uomeH due. 
 
 
 II 
 1 
 
 :kM 
 
 y^ 'ri:'^mi 
 
896 
 
 Rules 
 360, 361. 
 
 I'rovini) 
 acceleva.;- 
 
 iiient, now 
 construed. 
 
 H')w far 
 I'oiirt can 
 relievo 
 ayainst ex- 
 press pro- 
 viso for ac- 
 celenilinu 
 payment in 
 
 I'VCIlt ot 
 
 ili't'iinlt. 
 
 Interest to 
 be paiil u)) 
 to hiBt pjale 
 day. 
 
 MortKa^ee 
 plaintitT 
 cannot re- 
 fUKe to 
 accept pay- 
 ment of 
 wliole del)t. 
 
 After judg- 
 ment pro- 
 ceedirin« 
 may lie 
 stayed on 
 imyment of 
 arreiirs ami 
 costs. 
 
 Stay of pro 
 ccediiiKs 
 under Itiili 
 im, effect 
 of. 
 
 COMMENCEMENT OF ACTIONS. 
 
 payaVile, it was lield that a suit for foreclosure wonlcl not lie until tlie lanseof 
 the six nunuiis: /'urker v. T/ic Vine (Jvrwers' Axunciatioii, 23 (ir. 17(1. When- 
 tliere was a proviso acceleratinfjf payment of principal and interest in the event 
 of the mortgagor mortgaging, or otherwise incumliering, the proiM-rty, orsufffr- 
 ing it to become liable to sale for taxes, it was held that a voluntary assign- 
 nient in insolve^ncy was not within the i)roviso : McKai/ v. McF(ii-hiiii\ liXir. 
 345. Under a clause accelerating iiayment of mortgage money in the event (if 
 default, a mortgagee who neglects to call in the mortgage money pursuant tn 
 the provis<i, cannot in a redemption suit treat the sums, of which the payments 
 is accelerated as overdue, and claim interest thereon; McLdreii v. Miller,'}! 
 (Jr. (137. 
 
 ft wa-i held by Spragge, C, tliat even though there be an exinvss stipulatimi 
 in the ni'irtga^'e, that in default of payment of any instalment tlie whole UKirt- 
 gage money .-iliall liecome payaiile, tiiat the mortgagor may, neverthi'les.s, uftei- 
 (lefanlt, ehiini the l>enefit of this Hiilr : (inimirli v. Biiiii, 7 1'. !{. .'Wl ; and »n- 
 /\ii(i)i/) V. t'lim-ii'ii, V) iir. iV)!t ; l)ut in Ti/lrc v. ////(/"//, 3 Ont. App. ."iH, .Mikn 
 ('..r..V.. expressed a doulit wiietiier tlie Court had any power to relieve iirainst 
 such a stip dation, either unler this Rulr, or under its iniierent jurisdiction in 
 relieve against peniilties, and forfeitures ; and sei' (ii'in'i-nl I'lviUl <(• liisemiiit 
 Cii. v. '•'/'':/!/, 4S L. T. N. S. 182. Itoannot, therefore, be said to lie clear that 
 the /i/'/c ap|ilies to cases wlu-re tliere is an express proviso acceleratinj.: the piiy- 
 lueiit of the mortgage debt in the event of default. 
 
 Where a defeiulant moves to stay proceedings under this Bulr, he may 
 obtain the stay, on iiayment of thi' interest calculated up to the last gale day, 
 and is not obliged to pay it. up to the time of making the apjilieatimi : Slrm-hui, 
 v. J//////I //, (i (Jr. 37.'^; but, if the defendant desires to jiay otf the whole 
 ;iinoiint of the mortgage debt, the niortga','ee cannot refuse to accept it: 'V('^ 
 v. /i"//'/, !l P. \{. Ill; 1 Out. 3H4. (overruling U'nni v. /Ii/rn/i.f, 1-' ("liy. Ch. 
 134) ; altliougli in a redemption suit he might not be bound to accept moiv 
 than the instalments in arrear. 
 
 .\n aiijilication may be m.ade, after judgment has been <ibtaine(l, to .stay pro- 
 ceedings on payment of the arrears : see Rule 3(»0. 
 
 :«»0. Ill an action for the purpose and under the cii- 
 cumstances specified in the last Jiule, a defendant may 
 move to stay proceedings in the action, 'after judgment, 
 l)ut l)efore sale or final foreclosure, or recovery of pos.sessioii 
 of the mortgaged projierty hy the plaintiff, upon pajing 
 into Court the amount then d'lo for principal, interest ami 
 costs. Chy. 0. 4(52. 
 
 See notes to preceding Ruli'. 
 
 .\fter jiayineiit has been ma le, iin.ler this Riili , of tile instalnieiits in arnar. 
 it is irregular for the plaintiff to take any furtlier proceedings in the action 
 until another instalment falls due: Curroll v. Hojtkins, 4 (ir. 431 ; ami »ii 
 Riili 'M\\. 
 
 Puert'de" !*<5>« Where an application is made to stay the pro- 
 fault (le- ceedings under Rule IJGO, the judgment may afterwards be 
 hi^'en-"'"^ enforced, by order of the Court, upon subsecpient default 
 forced. j,^ tjjg payment of a further instalment of the principal, or 
 of the interest. Chy. O. 463. 
 
 Where sub- Where, I'fter a judgment of foreclosure, the proceedings are stayed midii' 
 se()uent de- Riilr .Slid ; on a subseipient default being nnule on the nlaintitf' s apiilicatum to 
 fault made enforce the judgment, and the defendant asking for a furtlier stay on payment 
 
GROWN ACTIONS. 
 
 397 
 
 4if the arreai'8, an order may be made directing payment of thj whole sum in Rules 
 >ix months, and in default foreclosure, with liberty to the defendant to pay the 362-364. 
 arrears forthwith, and in that event staying tlie i)rrueedings : Strachan v. after stay, 
 btdin, 1 Chy. Ch. 8. '»"" o^ 
 
 order. 
 
 on 
 default. 
 
 36S. In a redemption action, in default of payment o^j|_or 
 being made according to the report, the defendant is to be 
 entitled on an ex parte application in Chambers to a final 
 order of foreclosure against the plaintiff, or to an order 
 dismisning the action with costs to be paid by the plaintiff 
 to the defendant, forthwith after taxation thereof. J. A. 
 Rule 333. 
 
 See i{i(/fs 353, 303, and notes. 
 
 ii<f:i. In a redemption action where the plaintiff is 
 declared foreclosed, directions may be given either by the 
 final order foreclosing the plaintiff, or by subsequent orders, 
 that all necessary inquiries be made, accounts taken and 
 proceedings had for redemption or foreclosure, or redemp- 
 tion or sale, as against any subsequent incumbrancers, or 
 for the adjustment of the relative rights and liabilities of 
 the original defendants as among themselves, and such 
 order shall have the same force and effect as a judgment 
 obtained by the original defendant. J. A. Ru'e 334. /\ 
 
 The |)i'i)visiims of this Rule seeui to be baHctl on Chy. Ord. 4(i(). 
 
 ThKlisiiiissal of an action for redemption by a mortga<for usually oi)enites 
 :is ii fiiri'cld.surc ; and wln're a bill did not pray redtMui)tion, but a decree for 
 mlfiii|itinii was granted, it would seem a subsecpient dismissal ojHirated as a 
 fdivclipsmf : Ciii-iiivdll v. lliiu-inil^ 12 (ir. 3.SH ; but this is not the case wliere 
 the iiiortK'ajfc is by deposit of title deeds, l)ecaus«' in .such a case a judgment of 
 fiiiwjosurc would provide for the execution of a legal mortgage, but tile mere 
 illsi .issal iif an lUJtion to redeem, cannot iiave that effect, though it may pre- 
 diule the mortgagor from bringing another action to redeem: Mnislnfll \. 
 Shrfv.sliurii, L. K. ](» Chy. 2.5(1. 
 
 Whtri' an action for redemption is l)rought by a second mortgagee and he 
 is fi)rvcl(wc(l, tile mortgagor, as well as tlie first mortgagee, has a riglit to 
 havf a (lav appointed for tlie redemption of the tiist mortgage l)y the niort- 
 gugyr: MKiiiih'K v. Ainlirsm), IStir. (W4. Tlie defendant who is souglit to 
 lierKlfciiied, need not, unless he pleases, proceed inider tiiis Itiilf, and he can- 
 mit l)f (lc|M-ive(l c)f costs of any sulisecpUMit ;iction for foreelosin-e, or redemp- 
 tidii, fur not having done so. lli. 
 
 \Vlicrca second mo'-tgagee brings an action to redeem a prior mortgagee and 
 t'ltdrcc'lnse the mortgagor in default of redemption, tlie action maybe dis- 
 imsswi as against both tiie i)rior mortgagee, and the mortgagor, with costs : 
 IMhtl V. I'-urx, 31 Ch. 1). 312 ; 54 L. T. N. .S. 12. 
 
 Directions 
 wliere 
 plaintiiT in 
 redemp- 
 tiuu suit is 
 foreclosed. 
 
 Dismissal 
 of action 
 for redemp- 
 tion ope- 
 rates as a 
 fore- 
 closure. 
 
 Hulise- 
 (pient pro- 
 ceedings. 
 
 Crown Actions. ^ 
 
 5MJ4. Tlic procedure and forms which are from time to Komis »iui 
 tune in force for the prosecution of rights, claims or de- In'crowi^ 
 mands, or for the recovery of the possession of any lands, *'=''•""'• 
 
898 COMMENCEMENT OF ACTIONS. 
 
 36B ifiT t'seds or pereonal property between subject and subject, 
 shall be used in the like cases for the prosecution of rights, 
 claims or demands which her Majesty may have against 
 r.ny person or persons, body or bodies corporate, or for the 
 recovery of the possession of any lands, deeds or personal 
 property whei-eto Her Majesty claims to be entitled, but the 
 right of reply shall be always allowed to the Attorney- 
 General, and to any Queen's Counsel having written 
 authority from him for that purpose. R. S. 0. 1877, c. 58, 
 ss. (), 8. 
 
 venue'" '°' •*^^»5* I" caso in any action, or other proceeding before 
 cases. any Court or tribunal in Ontario, by or on behalf of the 
 Crown, against any corporation or person, in respect of any 
 lands, tenements or hereditaments, or of any goods or 
 chattels belonging to or accruing to the Crown, or standing 
 or being in the name of Her Majesty, or in respect of any sum 
 of money due and owing to Her Majesty by virtue of any vote 
 of the Legislature for the service of the Crown, or by virtue 
 of any statute relating to the public revenue, or in any 
 manner whatsoever, judgment is given for the Crown, Her 
 Majesty's Attorney-General may recover costs in the same 
 manner as and under the same rules, regulations and 
 provisions that apply to the payment or receipt of costs in 
 proceedings between subject and subject. R. S. 0. 1877, 
 c. 58, s. 9. 
 
 Defenaaiit :{ttO. If iu any information, action, or other proceeding, 
 cover costsjudgment is given against the Crown, the defendant is 
 entitled to costs, subject to the same rules as though such 
 proceeding had been had between subject and subject. 
 R. S. 0. 1877, c. 58, s. 10. 
 
 Til .\/fif.-<.'<-ii. V. Whisf-r. m L. T. X. S. !»3(), tlic Atty.-CJcn. iiotitit^l tli'' 
 (Iffciuliint tliiit the iiifonnation wcmld not hv. tiirtlit'i' in'oHciMitcd, ami it wa-- 
 lii'ld tliiit tliciv was no |)i)wt'i' to disiiiiss it for want of proxecntion, or to awanl 
 costs to tile (Iffcndaiit as tlio cause was not dt'terniint'd. V""''''t '" *)"tariii. 
 
 may i?»u"" ****''• Notwithstanding the want of enrolment, writs of 
 writs of summons to repeal letters patent, grants or other matter 
 in thesaiiic of rccord uudcr the Great Seal, shall be issued in the sanie 
 
 cases as ici. 
 fa. fornier- 
 
 in reveniu' 
 cases. 
 
 ly issued. 
 
 cases and under the same restrictions, as nearly as may be, 
 as writs of scire facias were on the 5th day of December, 
 1859, issuable from the Court of Chancery in England ; 
 and all the proceedings thereafter shall be the same as tbs 
 proceedings in an ordinary action ; but before the issue of 
 
 U.. 
 
PLEADINGS. 
 
 39i) 
 
 any such writ, the party making application for the same R^« 368. 
 shall, in addition to the Jiat of the Attorney-General, file in 
 the Court from which the writ is to be issued, an exempli- 
 fication under the Great Seal of the Province of the letters 
 patent, grant or other matter of record with respect to 
 \vhich tho said writ is to be issued. See R. S. 0. 1877, 
 e. 58, ss. 11, 12. 
 
 r> 
 
 CHAPTER V. 
 PLEADINGS. 
 
 1. StATKMKNI' of I'LAIll, 3(>H-ii7(). 
 
 1 DkKKNI'K AM> CorXTKUCLAIM, 
 
 371-:W8. 
 :i. DEMntiiKH, iiHl-H'Jl. 
 
 4. Ci.nsK OK Pi-KAmNds, 3i»2, am. 
 
 5, PlEADINO GENKltALIiY, 304-41!.'. 
 
 t(. IssiTEs, 4'20. 
 
 7. 8TI(IKIN(i OI T, AMENIJINO 
 
 Pl-KAPINdS, KTC, 421-433. 
 H. Pi.EAUINC. MaTTEKS AlUKIN'a 
 
 Pkndino Action, 434-440. 
 
 1. Statemknt of Claim. 
 
 JiftH. The plaintiff shall state the nature of his claim 
 and the relief sought in a pleading to be called the State- 
 ment of Claim. New. 
 
 A Htiitciiitiit (if fliiiiii is lU'Cfssary wliero tlit^ (Iffi'iidaiit lins not dispensed Statement 
 vritii It at tile time of aiipearance : see Appndix, Fonn !».S and /?»/<> 3G!( ; o' cla>i»- 
 :md cycii wliere no a)i|N'aran(U' is entered, if the case is one in which the ^"i^n ne- 
 pliiintitf can only obtain judgment liy motion for judgment: see Miii/iDi y. *'^^**''-^ ■ 
 .IWr,-(/>, 4(1 I,. J, fi,y_ 5S4; iiinitn- v. Wilmrhxi,,!, !) I'. R. 305, except where 
 /'"/'• ■-•!)!) applies. 
 
 Nil statement of claim is necessary wherc^ (1) the defenchmt does not require 
 "II'': (ir (l>) the ("onrt disiienses witii it : <'/i»r//<i„ v. /tirlie, 13 Oh. 1). 1(>(> ; or 
 (3) tlw defendant has not appeared, and the .judgment can l)e olitained by 
 'iHtiiultef ,ip|„,ii,.,iuce : see Hi'/i'-s 7<I4, W .s-r/., and 71H ; or (4) a defendant has 
 'I'ly'*''." """"'■'' '" 'h'f<'n<l uiuhn- A'"/*' 73!t. So also formerly under original 
 'i"/''l(i2, where he iuid obtained leaye to defend, and no order was niafle as 
 to (ielivery of pleadings: A//.ln.-< v. Tn/hu; \V. X. 1H7C>, 11 ; Mitfjulr I'ii'r a- 
 III rlnw, ■!■<,. V. /',•,•,-,/, W. N. 1S7(», 52. that /^'/'' has, howeyer, In^en alirogated 
 ''>■"»■ Con. /tii/i:i. 
 
 If tile defendant dispenses with the delivery of a statement of claim, the 
 »"iniii(iiiH is filed, and becomes the only iileading necessai-y : Bnlf^Cti) />. Where 
 a statement of claim is necessary, if the writ has beni specially indorsed, 
 
§1 
 
 'T- 
 
 -s 
 
 400 PLEADINUS. 
 
 Bule 369. the plaintiff may deliver notice, under Rule 370, that liifl claim is that which 
 apiiears by the indorsement upon the writ. Where such notice will not 
 Hiitfice, the Htatemeni of claim will bb framed in accordance with the iiuxleli 
 giv(*n in Api^ndix No. 53, et seq. 
 
 Thu plaintiff may deliver a statement, even thougii the defendant has stated 
 in luH api>earance that he dews not refpiire one (Rule 3G9 c) ; nuljject to thv 
 power of the Court, or the taxint; officer {Rule lilt;")), with regard to costs occa- 
 Bioned thoreV)y, if the delivery be unnecessary or improper. 
 
 Form. Form of Statement of Claim— A statement of claim will, to sonif extent, 
 
 follow the writ as to tiie names of the parties and the character in which sued 
 or suing. Probably, as formerly, the plaintiff will not be strictly confined to 
 the particulars of his cause of action specially indorsed : Rnle 2K); see Simlm 
 V. ,S:iiV(len, 4 P. It. 270 ; lluijijins v. (Juelph ttarrel Co., 7 P. K. 170 ; Jnlinsmv 
 I'ldmer, 4 C. P. D. 258 ; Large v. Lanje, W. N. 1H77, IDS ; LnimMcnii v. 
 Ijiiiui, y C. L. T. 412 ; and note to Ride 444 ; but see Ker v. Willinms,\\'. N. im. 
 10 ; and Ciiiti'd Te/e/i/ume Co. v. Tasker, r>\) L. T. N. S. 852, where it was held tu 
 be irregular to introduce into the statement of claim a different cause of action 
 not mentioned in the writ. 
 
 If the <lefendant does not appear, the plaintiff cannot, in liis statement of 
 chiini, enlarge his claim as indorstKl on the writ : Lmr v. /'hil/ii/, (2), 35 W. R. 
 450; ('ee v. Jielf, 35 Cii. I). 100; .see also Fwu'd v. nmiru, 2(i L. H. Ir. ISr)-, 
 ^Vojie V. Smith, 35 Ch. U. 188. 
 
 The plaintiff need not ask [relief against all the defendants named in thi- 
 writ, but may claim against .some only, if he abandons proceedings against tlie 
 rest, but not otherwise ; Arch. Prac. 13th ed. 215. 
 
 In a statement of claim tiie mention of the date of tlie issue of the writ of 
 summons, as shewn in Form 53 d kci/., is essential. Where it was omitted, 
 leave to amend was given on a motion to set aside the statement of cluini : 
 ,Smtt v. Creiiihtou, it V. H, 2.53. See Form 59. 
 
 As to printing tlie statement of claim : see Itidrs 39.5, 390. As to tlie causes 
 of action which may be joined : .see Ride 340. As to the form in which 
 material facts shouhl be set out : see Rnlf 399. 
 
 The facts in support of each separate cau.se of action should he separately 
 stated as far as may be : Ride 405. Under the Knglish Rules it has been said 
 that, in general, a defence sliould not be anticipated and answered ; llnU v. 
 Evt, 4 Ch. I). 341 ; Cturkr v. Vidliiw, 4(!L. .1. (I B. .53. Tlie relief desired must 
 l)e asked for: /^«/'' 404. The place where the plaintiff )>roposes to try tlie 
 action is to be mentioned in the statement of claim; and the plaintiff lias a 
 prima fiieie right to have the trial at any place he names in every kind of action, 
 except ejectment : Rule (!.53 ; and except in ctu'tain kinds, actions whioli under 
 jiarticular Statutes are directed to be tried in a particular place : sic notes to 
 Hide 0,53 ; imUsss the preponderance of convenience is greatly in favour <if sonic 
 other place, in wliicli ca,se the plact< of trial will be changed ; see Phm v. 
 Norimtntoii Iron, etc., Co., W. N. 1870, 105; Wn'id v. liini, \V. N. 18?!), LlNi; 
 (ireeii v. lieiinett, 32 W. R. 848; 50 L. T. N. S. 700; \V<th<>ii v, MV-/rw»"i, 1" 
 P. R. 228. This, in effect, was the practice formerly in Chancery ; N<kuI v. 
 Niiitd, OP. U. 48; but as to the weight wliich is to" l)e given to the cause of 
 action as an element in determining the place which is most convenient for 
 tlie trial, the opinions of the judges are conflicting : s(^e note to /^/^ <).)3. 
 
 The signature of Counsel, though unnecessary : Ride 399, lias licen said in 
 England to be desiralile ; Ihickett v. Jdiich, W. >f. 1870, 17 ; 33 h. T. N. S. 777 ; 
 l)ut is seldom if ever added in Ont. 
 
 Attention should lie givt-n to the matters mentioned in Rule 3i)7. For tln' 
 time for delivery: see Ridei^ .309 and 480 ; and as to the nicMle of ilelivery ; -ei 
 Rules 397 and 401. A copy should l)e filed as well as served : Hide ,'598. 
 
 »««. The delivery of the statement of claim shall be 
 regulated as follows : — 
 
STATEMENT OF CLAIM. 
 
 401 
 
 (a) If the defendant does not state that he does not *"*«'••• 
 require the delivery of a statement of claim, the plaintiff ulwhirh*^" 
 shall, unless otherwise ordered by the Court or a Judge, *? e«df' 
 deliver it within three months from the time of the defen- 
 dant's entering his appearance. J. A. Rule 158. 
 
 The Kn(f. RuleH 1875, O. 21, r. 1 (a), (1883 R. 225), are different. 
 
 As to obtaining further time for delivery : Hee IliijijinhotUmi v. Aynsley, 3 Ch. 
 D. 288. 
 
 An order extending the time will not be made ex parte : Wigle v. Harris, !» 
 P. R. 27(!. 
 
 A Htatt'inent of claim filed after the time for doing so has expired without 
 leave, has lK;en held under the IriHh Act to be not irregular, unlesis the defen- 
 dant has Kerved a notice of motion to dismius : O'Conndl v. O'Conndl and 
 Sampson v. (/Donniil, (> L. R. Ir. 470, 471 ; but in Ontario it has been decided 
 that a statfMnent ho filed is irregular, and may be struck oiit on motion in 
 Chambers imless circumstanctis are shewn justifying an extension of time : 
 Ckrkc v. McKwinij, !) P. R. 281 ; see Huh 300 (c). It cannot be treated as a 
 nullity; (lill v. WooUfin, 25 Ch. D. 707; see also Orave»v. Terry, in notes t<i 
 RuleH 371, 381. 
 
 Where a statement of claim was delivered after the time limited by an 
 order, and an order afterwards was made extending the time for delivery on 
 pyment of S20 costs, and the costs were paid, but no new statement delivered, 
 it was held, that tliough the delivery was irregular, it was waived by retaining 
 the copy served and the costs : Pierce v. Palmer, 12 P. R. 275. 
 
 Where an order is made giving a further limited time to file a i)leading, and 
 providing that, in default, judgment may be signed, a judgment signed with- 
 out serving a coi)y of the order is regular : see Farden v. Richter, 23 
 y. B. D. 124. 
 
 A guardian ml litem of an infant, and a married woman, may waive delivery 
 of a statement of claim : see Knatchbull v. Fmvle, VV. N. 1870, 2 ; Fryer v. 
 Wxsamn, W. N. 1870, 3. 
 
 The three months are calendar months : Rule ATI ; and in computing them 
 long vacation is not reckoned : Rule 484. For the mode of delivery, see RuIck 
 397, m.. 
 
 Where phaintiff has obtained an injunction or registered a lix pendens, or for 
 otherroasons justice so requires, tlie plaintiff may be ordered to file a state- 
 ment of claim before the three months above mentioned ; Hnll v. Forteye, !* 
 C. L. T. 2,'51 ; Jamieson v. Lainr/, 7 P. R. 404 ; Shepherd \. Kenned)/, 10 P. R. 
 242. 
 
 See also notes to /f«fes 371, 381, 
 
 (h) If the defendant states that he does not require the 
 delivery of a statement of claim, the plaintiff shall file a 
 copy of the summons with all indorsements thereon within 
 the same time. 
 
 Not in till' Etiglish Rules, and seems to be now rather an unnecessary pro- 
 vision, as a copy of *-lie writ with all indorsements is filed when th(^ writ is 
 issued : sec Rn/i- 2.'ii. Tlie filing of another copy will, how((ver, probably be 
 necessary if jn-cjeedings in default of a defence are contemplated. As to 
 delivery of (lef.-nce in such case ; see Ride 372. 
 
 The defendant is in his memorandum of apitearance to state whether he 
 r«]Hires the delivery of a statement of claim : set! Rule 280 and ApiKjndix 
 ^o^ll, No. !(3. 
 
 J. A. 
 
 26 
 
 li 
 
402 
 
 Rule 370. 
 
 fl 
 
 •^ 
 
 -2 
 
 I! l! 
 
 . PLEADINGS. 
 
 (c) The plaintiff may, if he thinks fit, deliver a statement 
 of claim, with the writ of summons, or notice in lieu of 
 writ of summons, or at any time afterwards, either before 
 or after appearance, and although the defendant may have 
 appeared and stated that he does not require the delivery 
 of a statement of claim : Provided that in no case where a 
 defendant has appeared shall a statement he delivered 
 more than 3 months after the appearance has heen entered, 
 unless otherwise ordered by the Court or a Judge. J. A. 
 Eule 158. ASVe J. A. l^ule 126. 
 
 Sulwtantially tho Hame as Eug. R. IHjr}, O. 21, r. 1 (h), (). li), r. 2 (1KH3 R. 
 225 d). 
 
 If the plaiiitiif (leliverH a statement of claim tlxnig'h luit required to, the 
 defendant must deliver a defence, but the ]ilaintin may l)e imiiislied by 
 Iteing made to pay costs if his action is improper : see Bul> ll!);"). 
 
 An application to enlarge tlie time will, in general, \ie by motion in Cliani- 
 l)ers. Or the time may be enlarged by consent : Ride 478. Thi^ connont 
 isliould be in writing, and no order is then necessary : AmhroUe v. Evelyn, 11 
 Ch. D. 75!>. 
 
 Where by mistake of a clerk of the nlaintiff's solicitor, the stateuient of claim 
 was served too late by two days, further time was given. Tlie Court thought 
 it immaterial that plaintiff liad delayed bringing tlie action till shortly bttforv 
 the Statute of Linntations would have barred the claim : Ctinadian Oil Works 
 V. Hay, 38 L. T. N. S. 54!) ; W. N. 1878, 107 ; but tlie Court has refused to 
 renew a writ of summons after the time for effecting tlie renewal has expired, 
 where the claim, in the absence of such renewal, would be barre<l by the Statute 
 of Limitations : l)iiijle v. Kaii/iimii, 3 C^. B. D. 7, 340. 
 
 See also notes to Mules ,3(i'J («) and 646. 
 
 Notice in 370* Where the writ is specially indorsed and the 
 Btatenient defendant has not dispensed with a statement of claim, it 
 °' "'*'•"• shall be sufficient for the plaintiff to [file ft copy of the writ? 
 with a copy of the special indorsement thereon, if not filed 
 /^ / V already, and} deliver as his statement of claim a notice to 
 
 the effect that his claim is that which appears by the in- 
 dorsement upon the writ, unless the Court or a Judge 
 orders him to deliver a further statement. 
 
 (a) Such notice may be either written or printed, or 
 partly written and partly printed, and may be in the Form 
 No. 16 in the Appendix, and shall be marked on the face 
 in the same manner as is required in the case of an ordi- 
 nary statement of claim. 
 
 (b) When the plaintiff is ordered to deliver such further 
 statement it shall he delivered within such time as by the 
 order is directed ; and if no time is so limited then within 
 the time prescribed by Rule 369. J. A. Eule 159. 
 
 Same as Eng. R. 1875, O. 21, r. 4, except the words in brackets. These words 
 were originally consequent on the previous filing of a copy of tho writ being 
 
-J- -. *-• i^\ l<* 
 
 DEFENCE AND COUNTER-CLAIM. 
 
 403 
 
 miulf ontional, instead of lieing iiii|K'rativo as in England : wo original llule Rule 370. 
 25. Tlie filing of a C()i>y in, however, now req\urwl ufxm the iHxuing of the 
 writ : Uiih' 234. 
 
 The I'liiff. RuleH of 1883 make a siM-cially indorsed writ always suffice as a 
 Ktfttemciit (if cliiini : Rule 225 («). 
 
 A "HiM'cially indorsed" writ wo\dd .stH-m to l)e one indorsed within the 
 nu'iHiiiig iif /tiilr 24!). Wiiere a writelainis Hjiecific sums and also damages, and 
 an iiijiinotion, it is not si)ecially indorsed within the meaning of that /{I'le : 
 Yciitmitii V. SiKiw, 28 W. K. ,574. ' 
 
 A writ s|H'cially indorsed, and a notion given under this /{iilt; were in the 
 earlier decisions on the Act, held to together constitute! a pleading which 
 miifiit 1m' (lennirred to : Robcrtmn v. Hoiranl, 3 C. P. L). 280 ; but it is now 
 (Icoiilcd that a deiimrrer is not proin-r, and that the defendant's course is to 
 ajiply imdiT tiie present Jlide for delivery of a further statement of claim : 
 FdiMiLi V. aiKirltoH, 10 C^. B. 1). 510. 
 
 In nidiiey ca.ses the ]ilaintiff ought to indorse his writ in such a way that 
 the notice may l)e given under this /{iite, and with the view that the indorse- 
 ment may furnish all nece.ssary infonnation to the defendant in regard to thu 
 claim; see vl Jioii, W. N. 1875, 202, /)rr Lush, .1 . Where the indorsement is 
 notHutficieutly <^xi)licit, particulars may Im' orderwl, and further time to jmt 
 in a defence given, if necessary: see Culton v. Housi-num, W. N. 187<5, 22 ; ,1 
 
 2Cliarl. Ch. Ca. 3(1; but the pro|)»)r fonn of application in such case would 
 seem to l)e for a further stattMuent of claim : Sehomlx'rfl v. Zoi'Mli, W. N. 
 1870, UK! ; 1 Charl. Ch. Ca. 3(i. Particidars of lump sums, for which credit 
 wan given, were ordered in Ooddfii v. Comtcn, 5 C. 1'. D. 17. 
 
 For further information with n^gard to particulars, see notes to Rules 245, 
 39!t. 
 
 In an action for money alleged to have l)een obtained by fraudulent mis- 
 rt'iiresentation, the nature of which misrepre8entati(jn, and the particulars of 
 the sums .lued for being set out in the indorsement of the writ, it was held 
 that notice in lieu of a statement of claim was sufficient, and a motion to 
 ami|H'l tile delivery of a better statement of claim was refused : Young v. 
 Beattk; lU L. R. Ir. 1!»2. 
 
 2. Defence and Counter-claim. 
 
 The defendant may waive the delivery to him of a statement of claim : Rule When bn 
 28ti. If none is then delivered he must deliver his statement of defence within delivered. 
 8 days from apix^arance : Ride 372. For the time for delivering a statement 
 of defence : see Rule 371. 
 
 The facts relating to the defence must be stated in the same manner as is Form, 
 provided in respect to other pleadings: /^ttesr3!)0, 406-411. If the defendant 
 has no facts to set up he may simply " join issue " or deny the statement of 
 claim. Huch a pleading will prevent an implifKl admission and put the plaintiff 
 to the (iroof of iiis claim : Hare v. Vawthiirjic, 11 P. R. 355. All facts not 
 in the statement of claim, on which the defendant means to rely should be set 
 out : RiUi: 402. Where distinct grounds of defence are relied on, founded on 
 separate and distinct facts, such facts should be stated separately and distinctly : 
 Rule 405. Though a defendant is not taken to have admitted what he does not 
 deny : see Rule 403, he should nevertheless make all proixjr admissions : Rule 
 ■WO ; otherwise he may have to bear the costs renderetl necessary by the failure 
 toadmit ; Rule 1189. The character in which the plaintiK sues : Rule 411, and 
 the legality or sufficiency of a contract in jxiint of law, if intended to be dis- 
 pute<l, nuist be expressly traversed : Rule 413. In an action for the recovery 
 of land the defendant need only state that he is in possession : Rule 416, unless 
 he has some equitable ground to set uj). 
 
 There may Ix) a plea to the jurisdiction : see Rule 271, Dart v. Citizens Ins. 
 <?o., 11 P. R. 513. 
 
 Inconsistent pleas may still be used where applicable : Re Morgan, Owen v. 
 Morgan, 35 Ch. D. 492 ; e.g., in an action for money, a denial of the loan, and 
 

 404 
 
 PLEADINQg. 
 
 Hvered. 
 
 Bote 8T1. plea that, if lent, it has been rt<i»aifl or release ^fiven : Biirnicntt v. Hann,\V. N. 
 187<!, 24 ; 2 Chnrl. Ch. Ca. 39. A defence auiountinff to iileiw of not K'lilty, and 
 juHtification. may be nroperly jthwled : liiMtll t. Stiiraril, W. N. l«7r>, 231, 1 
 Charl. Ch. Ca. -87. The offering of an ajiology, payment into Court and a 
 jiiHtitication may be ph^acU-il together in an itction for libel : Hawkrdry v. 
 Jiradnhaw, f) t^. 1J. D. 302. TliiK was not formerly allowwl ; set' Jjo'/lr v. Owim 
 Sound J'rhUinn Co., 8 P. R. ((!>. But where i)ayment into Court wiui pleiulcd 
 together with a juntification, in a libel action, and it wan not clear froui thu 
 pleading in respect of which particidar part of the cause of action, the pay- 
 ment was nuuU', tlie defence was struck out as embarnvssing : /•h'iiniii/\, Ihklar, 
 23 t^. li. 1). .'1H8; and on Rule WSA. 
 
 As a general rule, the defendants may deny the plaintiff's causes of action, 
 and plead payment into Court in respect to the wliole or any part of them : 
 Rnlf ti;i2; Brrdan v. (rrirtiivoau, 3 Ex. D. 2.51, in which the decision in Simrrw 
 Hall, 2 tJ. IJ. 1). 01.5, was questioned. A defendant may plead " not (guilty by 
 Statute where that defence is applicable : Hiik 417 ; also grounds of defence 
 arising after action bnnight : Ittde 434, tt »eii. ; but pleading in a))atuinent in 
 abolished : Itule 414. 
 
 A8 to the form of a counter-claim, see note to Rule 373. 
 
 wbende- 371. Where a statement of claim is delivered to a 
 be°de-™"* defendant he shall deliver his defence,' counter-claim e^ 
 demurrer within 8 days from the delivery of the statement 
 of claim, or from the time limited for appearance, which- 
 ever shall be last, unless such time is extended by the 
 Court or a Judge. J. A. Rule 160. iiee J. A. Rule 126. 
 
 Same as the Kng. R., 1875, O. 22, r. 1 (1883 R. 239), except that the Kiig. R. 
 has 10 days. The eight days will be counted from the time for appearance, 
 where a statement of claim has been delivered with the writ, or b((fore 
 appearance: Ride 3(1!) r. Long vacation is not nsckoned in the eight days: 
 Rule 484. 
 
 The time may l>e extended by consent : 478, which Rulv should Iw in writing : 
 AinJiroue v. Kvdi/n, 11 Ch. I). 75!>. No order is then necessary ; but if consent 
 cannot Iw obtained, the Court will jin)bably be lil)eral in granting further 
 time. The motion for further time is made in Chambers on notice : Wiytc v. 
 Harris, U P. R. 27(>. 
 
 A defence put in, without leave, after the pro|ier time but l)efore judgment, 
 cannot l>e treated as a nullity : (/dlv. WoodJin,2'>Vjh. I). 707. See also //(irJin;/ 
 V. Lyons, 13 L. R. Ir. 302 ; OibbimjH v. titromj, 20 Ch. D. 00. See also notes 
 to Rules 30!( and 381 ; but where it is delivered after service of a notice of 
 motion for judgment by default of pleading, tlie motion for judginent may 
 nevertheless bo prcxjeeded with, and it is incumbent upon the (h'tViuiant to 
 move for leave to deliver the defence and stay the motion for j"(lgni(ait : PntU 
 V. y>(mc, 11 L. R. Ir. 3!)0. But see Gdthin(/s v. Shwiy; 20 Ch. i). Oi;, wiiereit 
 was held that a defence delivered between notice of motion for judginent and 
 the hearing could not b*; ignored, but tli(< Court must exercise its (iiscretion 
 under all the circumstances: .see Mont(i;iu v. Lidid Corporation, .50 L.T.N. 8.730, 
 where, on motion for judgment, one week was given to defendant to diKchargf 
 the judgment by default. Where the plaintiff pi-iceeds under itidi'.m to note 
 the defendant as Ixiing in default, no defence can be thereafter tiled ;iud there- 
 fore delivered (see Rule 398) without leave. Where the mode of trial iuid te'ii 
 apix)inted, and affidavits hatl been filed for the trial, a defence so delivered 
 was struck out on motion of the plaintiff ; Wilson v. NolUe, 11 L. R. Ir. 54G. 
 
 A defence deliverwl after the time, and after a motion for leave to deliver it 
 had been refused, was set aside with costs : Mcehaii v. Median, 14 L. R. Ir. 301. 
 
 A defence delivered after the time, and uikiii the day when tiie mse was to 
 be heard on a motion for judgment, was held irregular and ordered to be struck 
 
-'V^H'I" ,-.,C"^ r,^^ 
 
 DEFENCE AND COUNTEH-CLAIM. 
 
 406 
 
 and motion BnlM 
 
 372. STI. 
 
 (lilt, unless tlif (Icfcndant paid tliii coHtx of mttting down the action a 
 for jiiiViiwnt, within it liinitcd tinu' : Unklrr v. Siiiiler, 11 P. R. 34. 
 
 VVIu-rc iin order {h nuvdc giving a further limited time to the defence, and 
 |irovi(liii); tliiit in dt^faiilt judgment nmv l>e Higned, a judgment Higned after 
 (icfiiult is reguhir, though no copy of the order is nerved : Fardfii v. Hichter, 
 :>3(i. a I). 124. 
 
 Hv the pnu'tice in Chancery, as a general rule, the costs of a first apiilication 
 fur furtlier time were costH in the cause, but those of Huhsequent applications 
 welt! unlered to he paid by the applicant : Dan. I'r., .Oth ed. M'.i. 
 
 Where the time in extended a demurrer may be filed within the extended 
 time: Htxliicn v. Hadiitu, 2 C\\. I). 112. Formerly, a defendant who obtained 
 further time to answer was not at liberty to demur : see note to /{idf 38(5. 
 
 See also notes to /J"/<'.v 3(»i», .381. 
 
 ;i72. A defendant who has appeared in an action and ^JJ^j."^ "Jl 
 stated that he does not require the delivery of a statement of claim, 
 of claim and to whom a statement of claim is not delivered, • ■> / 
 may deliver a defence, counter-claim or demurrer at any ^' 
 time within 8 days after his appearance, unless such time 
 is extended by the Court or a Judge. J. A. Rule 161. 
 
 Kxcept iw to the time, the same as the Eng. R. 187.5, (). 22, r. 2. The Rule of 
 18K<. K. 240, is different. 
 
 Ill Hnrriitou v. Snrrcii Manonlc Hall Cn., and (h'imnhttw, He. v. McDowrll, 6(1 
 L, T. .lour. 277 (cited in Chitty Forms p. IKi), it was held that where the 
 defeiulant disjienses with the delivery of a .statement of claim, he must deliver 
 his defence within eight days from the time of ap|iearaiice, otherwise judgment 
 nmv he .signed under Rah- 71!l. These cases overruletl Hnuper v, ililv», W. N. 
 1870, 10 ; 1 Charl. Ch. Ca. (i8 (see note to Ruh 71!)). 
 
 3711. A defendant in an action may (.c) get up byset-oir and 
 ^say of counter-claim, against the claim of the plaintiff, cuim*' 
 any right or claim whether the same sound in damages or 
 
 •not. 
 
 [n) A counter-claim shall have the same effect as a state- 
 ment of claim in a cross action, so as to enable the Court 
 to pronounce a final judgment in the same action, both on 
 i;he orij-inal and on the cross claim. J. A. Rule 127 (a). 
 
 Tliis is a Rule made in furtherance of 8t>c. 52 (7) of the Act. 
 
 ^ (.«) The original Ruk following Eng. R. 1875, O. 19, r. 3, (1883, R. 199) had 
 hfire the words "setoff or"; and clause (n) commenced "Such set off or 
 wmiter-claini shall " etc. 
 
 The alteration in the present Rule was made in consequence of what was 
 said in I'hnmhrHiit v. Ckanihcrliii, 11 V. R. .501, where it was held that what 
 Wfts n-ally a set-off, was pleadable as a defence, and could only be set up as a 
 defence, if it arose liefore the commencement of the action, and that pleading it ' ' 
 
 m the fonii of a counter-claim made no difference. A counter-claim may aet up 
 any matter projierly pleadable by counter-claim, though arising after the com- 
 mencement of the action : Il>. iwid Rule 434 ; and consequently a set-off, if 
 arising after action, may, under the present Rule, and in fact can only, be set 
 up by way of counter-claim. . 
 
 r> 
 
 % 
 
 ?x 
 
 *,^ 
 
 "^ 
 
 % 
 
 
IV -r- 
 
 406 
 
 PLEAPINUS. 
 
 Bole 873. Other oiuteM recogiiiitp that a Nttt-oiT and oounter-olaim ar« quite diHtinct ' 
 Kfn i'litlrr V. Morse, V2 I*. I{, tm ; Taqiinrl v. Marcitu, 3(; W. R. 4t(!t ; and (;ii«,.k 
 '"./'■"i !'• •!"") '^"d "11 tlin Hiil)jt)ct of c((Ht«: hch tim iioti'H to llulis H?*!, 1172. 
 
 Tlie effect of the ori)final Rnli HfeiiiH to have Vieeii to enlargt^ the ri),'lit of w-t- 
 off, HO aH to inakt.' it extend to claiiiiH Honiidiiiff in (htniageH. The ))reHciit liulr 
 Hf'eiriH not to interfere with what was hefore the .liid. Act, 18K1, eiipahlt? i)f 
 iK'inK I>lea(h'd hn a set-ofl'. but to enable a defendant to s«?t up any cross claim 
 whether Houudiiii; in daniag'e or not, by ineauHof a uounter-uhiiin. 
 
 Part of the twnefit given l)y this neetiou has been diMCUHHed under Huh W'lK 
 In addition to the chiNH of oaHcs there mentioned, th(^ defendant is i)y the nhove 
 Hub-H(x;tion enal'ied {Hul)ject to the discretion of the Court) to set up in an 
 action brought against him, any claims whatever whicii he may have against 
 the plaintiff, and miih'r certain restrictions claims against other persons : Nee 
 Xiti/lor V. /'</;/r/', 2(1 W. H. HOit ; lUmnt v. WhikI, VI Ch. I). (MC. ; f/wv v. 
 W'l-bb, 21 Cii. I). K()2; Fned v. (,'altiiway, 4 C. L. T. li)l. 
 
 Ponner 
 practirc 
 
 to 8Ut-0tl 
 
 t ■ ( 
 
 It will Ik) 8eeii that a most im]M)rtant change has l)een made in the law 
 ns relating to set-off, and cross-denuiuds. I'rior to the statutes of set-off : '2 (leu 
 2, caj). 22, sec. 13, and K (!eo. 2, cap. 24, sees. 4,5, wliere tiiere wen cinii.s- 
 denuuulH ujicotmected with eacii otlier, tlie i)arties were put to tlieir cnwH- 
 actions. Tlit! former Act enabled " muttuil debts " to be set-otf against (ine 
 another at law, aiid by the latter this was iH'rmitted though tlie nuitual dclitu 
 were of a different nature, tlnit is, a bond debt could In; set off against a simple 
 contract detit. Under the bankrui)tcy law, set-off was pennitted in cases in 
 which it could not have been ])I(^ade(l in an action at law. In Kf|uity, set-off 
 has lieen allowed in many cases not within the .Statutes of set-off : see Stury's 
 Eq. Jur. HS. 14, 'M, ft sei/. ; Lunihj v. McHiiUh, 11 (ir. 3(iH ; Mocliflli \ . Knidrl, 
 13 (Jr. 332. The .Statutes of sot-off ai)i)lied oidy wiiere the set-otf was (if a 
 legal debt, excluding equitable debts and unliquidated (Uunages. The .Indi- 
 cature Act al)oliHhes the distinction between legal and eciuitabh' debts ; and 
 the i)resent Jtiilc expressly authorizes the setting up of unli(|uidated deinamU 
 as an answer to either liqiiidated or unliquidated demands, not merelv liy way 
 of set-off, but HO as to enalde the defendant to obtain judgment in liis faviiurfur 
 any balance, or for any such f)ther relief as he may l)ti entitled to, on tiie nieritfi 
 of the case : see note to RuIa" 375, and Sla/ilcs v. Youinj, and Hurmih v. 
 li'yby, there referred to. The effect of The Judiatliirc Act. would seenitel". 
 toalxJish any diHtinction in effect lK<tweeu Het-fiff and cross demands so f :m 
 the right to recover in concerned, though any cross demand whii ot 
 
 fonnerly be pleaded as a set-off muHt now be pleaded by a com 
 
 A distinction has, however, l)een recognined which isntill i .iianoe in 
 
 reference to thedisixiHition of the costs where a counter-claim i up, not liv 
 
 way of a defence against the jjlaintilf's cause of action. Mr. Pili l,i wis, in li > 
 work on County Court I\.ictico, quoted with ajjjjroval by Cockburu, C.-T m 
 Stixike. V. Tai/hr, 5 C^. 15. D. 577, sayH : — " A set-off would seem to be of a dr. rr- 
 ent nature from a defence {(/ii, counter-claim) inasmuch as a «et-otf apiiears to 
 shew a debt balancing the debt claimed l)y the jdaintiff, and tlius leaving noth- 
 ing due to him ; while a counter-claim, it would seem, consists of a cross-claim, 
 not iHKjessarily extinguishing or destroying the plaintiff's demand. In other 
 words a set-off ai)pears to consist of a defence to the original claim of the 
 I)laintiff, a counter-claim is the assertion of a separate and indej)endent deniand, 
 which does not answer or destroy tlie original claim of the j)laintiff. The right 
 to rely on a set-off has long existed. The right to set uj) a counter-claim was 
 first given by the Judicature Acts." .See also (•'ittlieirnle, v. tSiiiilh, 7 *i. B. I). 
 ()2<) ; I'ellnn v. Xeptnne Marine Ass. Co., 5 C. P. D. 34 ; and notes to Rule 
 1170. 
 
 Under the 
 Jnd. Act. 
 
 The terms of the present Rule are wide enough to allow a defendant to set \\]> 
 any cross demand, whether connected with the plaintiff's claim or not, and 
 whether it sounds in damafjes or not ; but the lO'le ituist be reiid in connection 
 with Jiiiles 374, 423, jirovuling for the exclusion of coiniter-clauns and the 
 compulsory amendment of pleadings in the discretion of the Court : Onvi v. 
 »W*, 2lCh. D. 802. . ., 
 
COUNTER-CLAIMS. 
 
 407 
 
 IMTHOIIH, 
 
 " iviid per 
 
 T\w Rill'' in <»>1.V '"'^ "f I'rocodiirc, (leHiKJH^l to prcvtfiit the iifccHHity of Rul6 878. 
 brinifiiiK ii iTHHh-nctioii wIhtc acroHK (Iciniiiid ciiii coiivt'iiit^ntly Im* tried in the 
 origiiml iwlioii. It dm-H not (^ivc ii).'litn iim ivKiviiixt tliini pitrtics, or confer 
 riKlitM (if setoff lH'tw«cn tlif parties which did not cxiHt U-fori-. ThuH dainiH 
 against a Company hchl hy a director and /"'»(f /''/'■ for vahic aHHij^niMl to a thiiti 
 iMTtum. were held not siihjcct to he N«*t-ofT a^aiiiHt (hinia(;«'N payable under an 
 iiniiT afttTwiirds olitained liy the li(piidator of th(f Clonipany a^ainHt thi' direc- 
 tor' l{f Militii 'rriniiirni/s i'lt. Kx. p. Thfi/n, 22 Ch. 1). 122; atiinned in 
 ftji|K'al, 2") (Ml. 1 ). .'W7 ;, nt-e' A/rr-sei/ .Stnl, rtc. ( '<>. v. Xdi/lor, (I (.). H. 1 ). MH ; !( \]>\). 
 (/'as. i'M. In an action for cails hy the liquidator of a (.'onipany, a claim 
 liva Mliareliiiider a^aiuHt the Company wivs not allowed toln^Hetu]) : Jtr While- 
 h'linxr, !l (Mi. I). 51)5. A net-off claimed ai^ainst ari-earH of ix'nHion, a(;uinHt 
 whioli, liy .statute, no Hct-off wa.s |N'nniHHilile, wan diHallowed : O'lillifrcdlt: v. 
 Smilh, 7 ti. H. 1). <12(!. 
 
 A defendant cannot Het-oflF a deht due liy the |ilaintiff to him and anotlier 
 iiiTsciii ill e(|iial HJiareH : Jioiri/rar v. I'ltirxnu, <> (I. IJ. D. 540 ; nee alwi J'h/cral 
 lUuih V. Ilnrrisu,,, 10 P. U. 271; 20 C. L. .1. 104. 
 
 In an action by a receiver over a landlonl'H entate for rent due the landlord, 
 tlif (Iffcni hint net-off m<iney due hy the landlord. It wivh lu'ld that the action 
 liy tlio ri'ci'iver lieiuff in the "nterent of incumlirancerH on tlm landH, the set-off 
 cimld not 1m' relied on : MuUurken v. 0'/)(iitiiliiie, 1(5 L. K. Ir. 3()5. 
 
 Tlic moilc in which a defendant jiniceedH to obtain t\w cnwH relief eontem- Countcr- 
 Iilat<Ml liy tile Hii/v in by counter-claim, which han been defined an "a pleading ulaini. 
 vihi'ti' a defendant claims nome remedy or relief either against the plaintiff 
 aldMc, (ir atfainst the |ilaintiif together with nome other in-rnon or ] 
 whotlier already parties to the action or not : nee Haynen Cliy. Pr. 77 
 Blacklmni, .l.,"in Tirteren v. /trdi/, 45 L. J. Chy. 115. 
 
 A defendant in not bound to make liin cronn claimn by counter-claim, hut 
 may assert them by cros.s lujtion : Ailiimsun v. Tujl', 44 L. T. N. H. 420 ; see 
 ndtftosec. 52 (7) of the Act.v('y>/vf p. 40; Xeitle v. Clarkr, 4 Ex. D. 2!t5. 
 
 Hut wiiere an action and cronn action have Infen brought there in po ver, in a 
 pniiier case, to ntay one, and comjiel the plaintiff in it to proceed byway of 
 counter-claim in the other action : see Irwin v. SjM;rrj/, 11 1*. R. 221) ; t'onmee 
 s t'.P. Rij.Co., lb.U\). 
 
 TheCdurtn nhoidd give a lilx-ral interpretation to these Rules, which were 
 nodoulit panned with the intention of settling in (me litigaticm all questions 
 arising out of the subject matter of the dispute : iter Brett, L.J., in Turner v. 
 Haliienfonl f/un Co., 3 Kx. D. 151. 
 
 It is of the essence of a coimter-claim that it claims relief against the 
 plaintiir. There can bt^ no counter-claim against a co-defendant alone : 
 Wnrner v. Twiaimi, 24 \V. K. 53() ; McLaii v. Sharp, W. N. 1877, 21(5 : lienech- 
 V. Cmildw/.: W. N. 1881, 54 ; - Shephu'nl v. Jlmue, 2 Ch. I). 223, is not to be 
 considered "i authority : see Harris v. itamhle, (iCh. D. 748 ; Furnesg v. Jlimth, 
 4Cli.I).5'^ So there can l)e no counter-claim against a third party, unless 
 a claim is in:i(l(' against ]>laintiff ahmg with such third party : I>e(ir v, Swnrcler, 
 4Ch. I). 47t;; Romann \. lirndrerht, 1) P. R. 2; Harber v. lUaihery, 19 Ch. D. 
 473; anil fti//«' 37(i. 
 
 Where a coimter-claim is brought against a plaintiff alone, it is not noces" Against 
 »ary that tti. claim of the defendant should lie connecterl with the ]ilaintiff's plaintiff. 
 original ( .• of action ; it may relate to any matter which might be the 
 suhjectiii ,11 independent suit : (^uiu v. Jlessitm, 40 L. T. N. S. 70 ; where it 
 was held tiiat the words, "relating tt) or connectetl with the original subject 
 of the cause or matter," in sec. 52, sul)-sec. 7, of the Act, only qualify that 
 jiortion of the section with which they are in immediate ccmnection, viz., a 
 counter-claim which seeks relief against a third j)arty as well as the plaintiff. 
 But the defendant may not set uii by way of counter-claim Bjgamst the 
 claim of a plaintiff, suing only in a aistinct iiers(mal character, claims against 
 him personally, and also as executor : Mucdomdd v. Varingtmi, 4 C. P. D. 28 ; 
 ami see Rah' 344. 
 
 r» 
 
408 
 
 PLEADINOS. 
 
 A. 
 
 
 1 
 
 \ 
 
 ■ 
 
 
 
 
 
 Bole 873. Where a counter-claim is made against a iiertum other than the plaintiff it is 
 AoaiuBt the subject to certain restrictions : 
 
 and'other ^^ '^^^ relief sought to be obtained against him must relate s^HJcificaily to, 
 "' or DO connected with, the subject matter of the action ; I'fuhmck v. ScoU, 2 
 Ch. D. 73G ; see Harris v. Gamble, 6 Ch. D. 748 ; Qitin v. Ilesmm, and liarber 
 V. lilaiherg, supra. 
 
 (2) The counter-claim must, a<i before iticntioned, claim relief againxt the 
 plaintiiT along with such other perso- : Rule 37<) ; Treleren v. limy, 45 L. J. 
 Chy. 113; 1 Ch. D. 176; Dear v. Isworder, and Harris v. (Jamble, supra; 
 Tvrrur v. Hedncsford (Has Co., 3 Ex. D. 145. Where relief is not claimed 
 against the third party along with the jilaintiff, the pnxjeedings must be under 
 Rule 328 : Central African Trading Co. v. fruiv, 40 L. T. N. S. 540; 48 L. J. 
 Kx. 510. It is not enough that the counter olaim Ix^ in form, if it. Ix; not in sub- 
 stance, for relief against the third person along with the plaintiff ; thus where 
 the matter of the counter-claim may be set up against the plaintiif as a 
 defence without the third |>arty, and the plaintiff is not interested in what 
 is claimed from the third |>arty, the counter-claiiit is iinproiier ; liomann v. 
 Brodrecht, 9 P. R. 2 ; Torrance v. LivinystoHe, 10 P. R. 2<>. 
 
 Furthermore, it has been held, perhajw under the terms of original Rule 
 167 (now 370), that a third i»arty cannot counter-claim against tlie defendant 
 who brought him in : Street v. Hover, 2 il. B. D. 41t8 ; but, in tireen v. Thorn- 
 ton, 9 C L. T. 139, a third i>arty, made with the plaintiff a defendant to a 
 counter-claim, was allowed to amend a reply to the defendant's eouiiter-claim, 
 by asserting another counter-claim agamst the defendant : hw Tuke v. 
 Andrews, 8 Q. B. D. 428; Rule 379 and notes. In Kraiis v. Buck, 4 Ch. D. 
 432, it was held that a (lerson cannot be brought in as a defendant to a 
 counter-claim iigainst whom relief is claimed in one of two incouKistent alterna- 
 tives : see note to Rule 301. 
 
 A defendant is not entitled to set up in his counter-claim a hy)K>thetical case 
 for relief against a third party : Sackrille v. Pacei/, 18 C. L. J. 14. 
 
 A defendant may not serve a third party out of tlie , irisdiction with a 
 counter-claim : Potters v. Miller, 31 W. R. 858. See, however, R<: Luckie, 
 W. N. 1880, 12; and notes to Rule 271. 
 
 Where a defendant counter-elaims against plaintiff as liable alone, the 
 plaintiff cannot have added another i>erson who, he alleges, is also liable as 
 to a iMirt of the counter-claim : Egre v. Morrinri, W. N. 1884, 58. 
 
 In any case, a counter-claim can only be set up where an action might 
 be brought. A counter-olain has therefore been disallowed where it setup 
 a debt '.leged to have been incurred by the ]>laintiff when an infant, and 
 not ratified under Lord Tenderden's Act : Ravh'// v. liuwley, 1 Q. B. D. 400. 
 8o in an action by an administrator for the Italance of an intestate's link- 
 ing accoi<nt, a debt due from the intestate on a note which iM-came due 
 after his death was not allowed to be set up, Ixicause an adniiniHtration 
 order had been before action obtained, of which the defendants had notice ; 
 and under 23 & 24 Vict. c. 38, s. 14, Equity, would restrain the defen- 
 dant from proceeding on the note, leaving hmi to prove for it in the 
 administration proceedings: Xewall v. yationtd I'nwincial Bank of England, 
 1 C. P. D. 496 ; 1 Charl. Ch. Ca. 82 ; see also Monteith v. Walsh, 10 P. R. 162. 
 So also, where the claim set up in the counter-claim had lieen extingiished by 
 the obtaining of a judgment in another Division, which judgment the defendant 
 was not at liberty to enforce without leave, it was disallowed: Birmingh m 
 Co, Estates v. Smith, 13 Ch. D. 606 ; see also Beddall v. Mai'.land, 17 Ch. D. 
 174, where a counter-claim for damages for forcible entry under the Statute of 
 Richard II. failed, because that Act gave no civil remedy. So also, wliere a 
 counter-claim was by a surety against the plaintiff and third )>»rties (the 
 debtors) to require the nlaintiff to first pnioeed against the debtors (they being 
 able to i)ay) and for inaemnity from the :"ebtor8, it was disallowed : Federal 
 Bank v. Harrison, 10 P. R. 271. 
 
 See also Re Milan Tramways Co., ex parte Thei/i, 22 Ch. D. 122, aftirmedin 
 appeal 26 Ch. D. 587; followed in Re IJiUespie, 54 I. J. Q. B. 342; Uathercolt 
 V. Smith, 7 Q. B. D. 626 ; Realty v. Mair, 10 L. R. Ir. 208. 
 
 Counter- 
 claim on!y 
 where a 
 separate 
 action 
 'Would lie. 
 
COUNTER-CLAIMS. 
 
 409 
 
 Whether s counter-claim i8 to be considered merely as a defence, or as some- Rule ST3. 
 thing like a seiiarate action, has Ixien much disoussed. It is not an action : counter- 
 Irwin V. Broim, 12 P. R. tt3tt, thuugh by the terms of the present J{ule it has claim, how 
 the same effect as a statement of claim in a cross-action, to enable jud^pnent ^^r *" }"' ,. 
 to be given on btith claim, and counter-claim ; see Lumsden v. Win.er, 8 ^gK^" 
 (). B. D. (»54, and it was early viewe(l as in the nature of an indeixiiident .iction 
 in dealing with the question of the costs of it : see Stoitke v, Tu^ior, 5 C^. B. D. 
 !)TI ; Baine» v. BronUev, ti C^. B. I). G!(5 and notes supra p. 40<>, and to Rule U70 ; 
 Warinyv.Pcamian, 32 W. R. 42<»; 350 L. T. N. S. (533. 
 
 It has since l)een so viewed for other puriM)ses. For instance, in Beddall v. 
 Maitlanil, 17 Ch. D. 174, it was held by Fry, J., that a counter-claim is an 
 independent action, a,:id relief may be given ujKin it in res;)ect of a cause of 
 action that arose aiter tiie issue of the writ in the original action ; and this 
 \iew seems now established in England by decisions : see McOotean v. 
 Middktm, 11 C^. B. D. 4«)!> ; see also Chamlierhiin v. ChirmbirUn, 11 P. R. 501, 
 and ^1 doubt is removed in Ont. by link 434. 
 
 In Ellk v. Mumon, W. N. 187r), 253 ; 35 L. T. N. H. 585, the Court of 
 Appeal had i)n!viously held that such a counter-claim should, imder Order 10, 
 state that it was founded on facts which have arisen since the action was 
 brought ; and in 1877, in Oi '.(jiniU llartlrpoid (MIericK On. v. (/ihh, 5 Cli. D. 
 713, Jessel, M.R, had expressed the opinion that damages claimed by counter- 
 claim must be limited to the date when the writ issued. 
 
 In acconianw witli the principle of Jkddnll v. MnUlond, it has further been 
 now dwidwl (and the decision was confirmed in England by an express Rule : 
 Eng. R. 1883, 240), that the discontinuance of an action by the plaintiff does 
 not pU an end to the counter-claim : Mctltman v. M'ddlHon, 11 Q. 13. D. 4(54, 
 overruling Vavumicur v. Krupp, 15 Ch. D. 474 ; that a counter-claim may be 
 revived on the death of the defendant, indejK'ndently of the revivor of the 
 action by the plaintiff : Andrew v. Aitkm, 30 W. R. 701; 40 L. T. N. S. ()8J> ; 
 and that a plaintiff may in his reply to a coimte' olaim set up a c(nniter- 
 claim against defendant: Toke v. Aiulrcim, 8 l^. iJ. 1). 428; see also 19 
 C. L. J. I»i2. 
 
 An order will n{)t, however, lie made ujkju the counter-claim until the origi- 
 nal claim is dealt with : Aitkin v. Dunbar, 40 L. ,T. Chv. 480; but whether 
 issueH raised by the claim and counter-claim shall \w. tried together is a inatt(^r 
 of convenience : Fie Wootijine, Thompson v. Wootljinr, 38 L. T. N. S. 753 ; 47 
 li. J. Chy. M2, 
 
 Where two or more plaintiffs sue for a joint claim, the defendant may set up 
 separate claims against the plaintiffs severally : Manchester <t" iSheffield Railwau 
 (\. V. Brooks, 2 Ex. D. 243. 
 
 It is not necessary that the amount claimed by tlie defendant should be equal 
 to the claim of the plaintiff : Mosti/nv. West Mostyn Co., 1 C. P. D. 145. 
 
 Where the issues of fa^t in the claim and counter-claim were identical, it was 
 held tha>t th(> plaintiff was not entitled to adduce in replyto the counter-claim 
 fresh evidence which would have been material to the original oase : (Jreen v. 
 A<ii>i, 13 Ch. D. 580 : see also, as to th«! evidence where claim and counter- 
 claim are tried together. Re Woodjine, Thotnpson v. Woodjine, 38 L. T. N. S. 
 ii)3. 
 
 A oounter-c'.aim mij be set up by the Crown in a iietition of right : Thmims 
 v.n* Vuem, VV iv. 1875, 218 ; 1 6h:c\. Ch. Ca. 71. 
 
 In order to pn^vent the abuse of the extensive |M)wer8 of counter-claim given striking 
 to defendants, the Court has a discretion under Itule 374 to consider whether out coun- 
 the counter-claim should be pnx;eede<l with or struck out, leaving the defendant ter-olaiius. 
 to make it the subject of an indeiiendent action. 
 
 There is jurisdiction to stay proceedings in » cross-action and allow the 
 •■Iwm to be set up by ofninter-claim in another acti(m, yet it should only be 
 none when the |K)uit8 at issue are the same : Adamson v. Tuff, 44 L. T. N. S. 
 420; nee Irwin v. Sperrp, 11 P. R. 22a iCmmee v. C. P Ry., 11 P. R. 149. 
 
 ^>. 
 

 410 I'LKADINOS. < 
 
 Rul6 373. In'reHpect to security for costs also, a defendant who sets up a counterclaim 
 becomes to some extent in the |iosition of a pl'^.intiflf in a cross-action : Winter- 
 Jit'Ul V. Hradnum, 3 Q. B. D. 324 ; and, when out of the jurisdiction, was in one 
 case ordered to give security for costs : The J. Fiiher, 2 P. 1). 115; but a 
 defendant will not be entitled to securitY where his counter-claim is in respect 
 of the same subject-matter as the plaintiff's claim : Maplegon v. Moiini, 5 
 Q. B. D. 144 ; see also Shepherd v. Jlai/lm/i, 13 Gr. (>81 ; and where he admits the 
 plaintiff's claim and sets up a counter-claim founded on a distinct claim, he 
 cannot demand security for costs from a ]>laintiff if o»it of the jurisdiction ; quart, 
 however, where he sets \i\\ a coimti-r-claim for an amount greater than the 
 l)laintiff's claim : see WinUrtield v. Bradnum, supra ; see also notes to RvU 
 1245. 
 
 Form. Form of Counter-Claim. — Acoiinter-claim and statement of defence must be 
 
 included in the same pleading, and the same rules apply in many resi)ectstoa 
 counter-claim as to a statement of claim : see Hiilioway v. York, 25 W. R. 627. 
 
 A countt^r-claim is H>ibjt«t to the same rules as a claim in respect to the 
 causes of action which may be joined, and therefore a counter-claim for 
 ii'covery of land with an independent claim for damages was (li,sall()wed an 
 contrary to Mule 341 : ( 'ompton v. Preston, 21 Ch. D. 138. 
 
 By the express terms of the Bulen, the relief prayed for by way of counter- 
 claim must Ixf si)ecifically stated: /{ideAOi; and the facts su|)|K)rting each 
 cause of tuition are, as far as may Ije, to 1m! ke|)t distinct : Rule 405; but » 
 counter-claim under the Ontario Acts and Jiules is not jroverned by as stnct 
 j-egulations as in Kngland Rules 10 and 20 t>f the English Order 1(» (of 1875) 
 were not adopted here. Rule 10 i)rovided that " where any defendant seeks to 
 rely uj)on any facts as sup|K)rtinj|; a right ot 8et-r)ff or counter-claim, he sliall, 
 in his statement of defence, H^)ecltically state that he does so bv way of set-off 
 or coimter-claim. " Under this Rule a defendant is not allowed in Kngland to 
 mix the facts supporting his counter-claim, indiscriminately with those con- 
 stituting his defence. Where a pleading was headefl " statement of defence 
 and counter-claim," and set forth in thirteen paragraphs facts on which the 
 (lefeti'ln it relied for his deft^nce without making any reference to counter- 
 claims, and c^oncluded in the fourteenth paragraph with a claim by way of 
 counter-claim for damages," it was held by Fry, J., to lie not a projjer counter- 
 claim ar.d was dismissed : Crowe v. Itarnicot, (i Ch. I). 753 ; see aluo Hilhiuin v. 
 M<i{ihe>\ 24 W. R. 485 ; but the same Judge afterwards qualified his decision 
 in an'<ther case, and held tiiat it is not netjessary that a set-off or counter-claim 
 shctild have a separate heading, or lie separated by a inarke<l line fnnn the 
 flefeuce, or that paragraphs containing the facts relied on should be sejiftrately 
 iiumbenKl : Leeg v. l'atter»on, 26 W. R. 3U0 ; 7 Ch. D. 8«C. 
 
 The necessity for strict compliance with Rule 10 of the English Orders may 
 have been jiartly due to the principle of the English system in regard to admis- 
 sions (see note to Rule 403) and to Rule 20, which required the plaintiff to deal 
 siM'cifically in his rejdy with each allegation in the counter-claim of which he 
 did not admit the tnith. 
 
 The result under the English Act is, therefore, that though the statement of 
 flefence and countttr-claim may l)e combined in the same document, they are 
 cpiite distinct ]>leadings. The para(fra](hs of the dcwument, may lie numbered 
 (ionsecutively ; and the counter-claim n<!ed not I )e svimrated from the defence 
 by any marked line or separate heading ; but it is necessary that all tlie facts 
 which tlie defendant relies ujnm by way of counter-claim should api)ear in that 
 part of the rlocument which in fact constitutes the counter-claim ; and it is not 
 enough if the facts lie found scattered thnnigh the defence and counter-claini. 
 If the facts relied on by way of defence are also relied u|H)n to siii)|H)rt the 
 counter-claim, they may Ima incor|iorated in the counter-claim by reien^nce to 
 the paragrat>h in which they are set forth in the defence : Birmin<ihim Eftatii 
 Co. v. Smith, 13 Ch. 1). 5(Mi. 
 
 The result under the Ontario Act would 8e«>m to 1)6, that it is not iiecessar)!, 
 by separate numbering of paragraphs, headings, or otherwise, to distinguish 
 the (lefence from the counter-claim. It should be sufficient if the facts on 
 which the defendant relies, whetlier by way of defence or counter-claim, are 
 
COUNTER-CLAIMS. 
 
 411 
 
 /\ 7 /> 
 
 concisely stated and without prolixity: Rule 3!K), keening, aa far as laay be, Bui* 811. ' 
 
 itei)arate and distinct, the factH relating to several and aistinct oaiuc* uf action 
 
 relied on by way of counter-claim : seeHule 405. Aprayerfor thecounter-n-lief 
 
 deitired should be added : Rule 404. Then by analogy to the deciuion in \y'nt»ott 
 
 V. Jfawkint, 24 W. R. 884, if the facts stated show either a defence, or a riirht 
 
 to any relief i)rayed for by way of counter-claim, the defendant should lie 
 
 lintitled to the benefit of such defence or to such relief. If relief, by way of 
 
 cminter-claiin, whether general or otherwise, is not asked, it will be taken that 
 
 it is not wanted : HoUoway v. York, supra. A fonii of counter-claim is given 
 
 in the App. No. 84. 
 
 As to the time for delivering a coimter^claim in the case of a jwrson alrejuly 
 a i)arty to the causi^ : see Jiule 376, and in the case of a third party : Jiuk 377. 
 
 374. Where a defendant sets up a counter-claim, if the striking y ' 
 plaintiff, or any other person named m manner aferesftidter-ciaim^ 
 as party to such counter-claim, contends that the claim 
 thereby raised ought not to be disposed of by way of 
 counter-claim, but in an independent action, he may at 
 any time before trial] apply to the Court or a Judge for 
 an order that such counter-claim may be excluded ; and 
 the Court or a Judge may on the hearing of such applica- 
 tion, make such order as shall be just. J. A. Rule 168. 
 
 histt'wlof "Ix'fore trial" the original iJn/r had " within three weeks from the 
 (jplivery of statement of defence." The words " Imfore trial " come from Bu/r 
 127, last clause, which is here consolidated with Jtidr l(i8. The Kng. R. 1S75 
 0. 22, r. 9 (18H3, R. 248), has "l>efore reply ;" otherwise the Rules art; the 
 
 name. 
 
 An applicati(m imder this Rale may, in England, l)e made in Coiirt : see 
 l)nr v. Sinirilvi; 4 Ch. I). 47(! ; llagiiims v. Tirml, 10 Ch. D. .V)!l ; but, as a 
 Ijeneral thitig, should be made in Chambers : see Xaiilur v. Fiirrer, 2(t W. R. 
 SO!) ; and Coe's Prac. in Cham. 78. It is to be made before trial. In Lifnch v. 
 Macd'muld, ,S7 Ch. I). 22, it was said that it was t(H) late to ai)ply after rej)lj', 
 (the [jeriod fixed by the Kng. Rule,)but doubtless also at the trial the .Judge has 
 IKiwer to deal with the tileadings and the action as he may deem jirojier : see 
 Hurber v. Blaihe,y, 1«( Ch. D. 473. 
 
 For the princi|ilesuiK)n which the Court acts in excluding counter-claims : me 
 Xayliir v. Farrer, fiupra ; J'ailwick v. >Sf<itl, 2 Ch. I). 73(5 ; hear v. Sirnrtlfi; 4 
 Ch. I). 47(!; Ilnrrix v. (/umhte, Ch. D. 748 ; Birniini/luiiii Kxtates v. Shiith, 13 
 Ch. D. tm ; IVilherlwM v. Priest, 28 W. R. 277 ; also the examples infrn. 
 
 The decision of a .Judge under this llnle, if ap|)ealed from, will rarely l)e 
 interfered with : llurjijom v. Tweed, 1(! Ch. D. 3.59. 
 
 In .Vrt ///»)■ V. Ftirrer, .Jessel, M.R., said that, i'> his opinion, under order 19, 
 Rule 3, a defendant might set \\\> any numl)er of counter-claims. There was no 
 limit laid down in that Ride either to their numWr or nature ; but it was left 
 t<i the discretion of the Court or a .Judge to do so, otherwise fifty causes of 
 iwtionof the inost divers.^ nature might be Joined together and set ui), and wit- 
 nesnes of all kinds called in sup|>ort of each. How would it \tf ix^ssihle for the 
 Cfiurt to try all those in cme action? Then- must also be some limit to the 
 character of the claim set up. Sup|Kise, for instance, an action for account 
 hrcHight by a surviving partner against the widow, who was also the executrix 
 "f the other, to which the widow set up a count<'r-claim for damages for bn-.-ich 
 I" lironiise of marriage, could that lie said to l>e a counter-claim which could lie 
 conveniently tlisjioKwI of in the |)ending action ? It was imiKJssible. The .Judge 
 imwt exercise tin* discretion given to him by the Rule in allowing or n^jecting 
 a cuunter-claiin. 
 
 hi that case, the matters set up by defendant were totally unconnected with 
 Ihf iiartnership, the subject of the plaintiff's cluini. In liis'l^)rdHliip's opinion 
 
412 
 
 PLEADINGS. 
 
 Bale'374. they could not be conveniently disimsed of as a counter-claim, but were fit 8ub- 
 jects for a croDs-action. No injUHtice, he said, would be done to the defendant by 
 striking out the counter-claim, because his Lordship would not l)e allowing the 
 plain tin, as in some cases, to get money from the defendant which iiemi^htnot 
 be entitled to, and which the defendant might not afford to spare ; for the 
 defendant would be able to get his money in the cross-action before the plain- 
 tiff, who would only get an order for taking accounts, could get any order for 
 payment in the present action. 
 
 In Bartholomew v. JlawHwfs, W. N. 187(5, 50 ; 2 Charl. Ch. Ca. 32, Archi- 
 bald, J., said, "There is no doubt whatever that a defendant is entitled to set 
 up any counter-claim that is not so incongruous as to \>e incapable ofbcingcon- 
 veniently tried witii the original claim." Tlie question of tne cmivMiience of 
 trial depends greatly \ip(ni whether the subject of the cotniter-cliiiin is germane 
 to the subject of the action. But though a counter-claim be not in relation to 
 matters foreign to the subject of the action, still the fact that it will neceiwi- 
 tate a long account, and thus unrluly delay the action, may furnish groundafor 
 excluding it : (/ray v. WfM, 21 Ch. D. 802. 
 
 In CnruiUian Securities Co. v. Prentice, 9 P. R. 329, Cameron, .)., said; "I 
 have assumed that allowing or disallowing a counter-claim where third |)artieR 
 are to Ix^ l>rought in, is matter of discretion, not of course to be exercised arbi- 
 trarily, but uixm consideration (jf all the circumstances, including rights involved 
 in the counter-claim and the question of <ielay and convenience of trial. In jury 
 cases thert^ can be no question tiiat much difficulty may arise by the mixing up 
 of different claims — if I may use the term " mixing " in such connection— and 
 cross or counter-claims in the same acti(Mi : and unless the clear legal rightti of 
 the defendant for his ))rotection against the plaintiff's action would seem to 
 n-quire it, counter-claims ought not to lie favoured." 
 
 A counter-claim for damages arising out of the same subJTOt matter or con- 
 tract as the plaintiff is prcxieeding upon, is therefore in general, pro|)er. So 
 also a counter-cluim in the nature of a cross demand, jM-cuniary or other- 
 wise, unconnected with the -subject matter of the |>laintiff's claim, |)rovided 
 there; is no inconvenience in having a trial of l)oth in the same action. 
 
 Counter- Oounter-Claims allowed.- -Ezamplea:— Action by a stockbroker for |)riceor 
 -claims shares. Coiniter-claim for fraudulent misrepresentatiems as to the value of the 
 
 Allowed. shares : Amm, I Charl. Ch. Ca. 73 ; Kvana v. <Jann, W. N. 1875, 1!H» ; 1 Charl. 
 Ch. Ca. 70 ; see also Lee v. McMalion, 2 Ont. (i.54. 
 
 Action for price of iron. Counter-claim for inferiority of in)n : Artnn, 1 Charl. 
 Ch. Ca. 73 ; or non-delivery of part : Midland Ry. Co. v. (hilarin Rolling Mills, 
 2 Ont. 1. 
 
 Action for price of coals. Counter-claim 
 coals : Xortoti v. Merrimnn, W. N. 1875, 210 ; 
 V. r. C. Furniture Co., 32 C. P. 422; 20 C. L 
 
 Action for negligent construction of ship. _ 
 
 beyond the contract price : Trinacria v. Richards<m, W. N. 187.5, 2l!> ; 1 Charl, 
 Ch. Ca. 74. 
 
 Action by builder. Counter-claim for breach of covenant in building con- 
 tract : Trerena v. Wattn, W. N. 1875, 2.50 ; 1 Charl. Ch. Ca. 7!». 
 
 Acticm by lessor for rent. Counter-claim for an alleged debt and damage* 
 for non-|>eriFormance of lessor's agreement : At wood v. A/iller, W. N. 1870, 11 ! 
 1 Charl. Ch. Ca. 82; see Atkintmi v. KlHsim, W. N. 1875, 1!>!>; 1 Charl. Ch, 
 Ca. (59. 
 
 Action of ejectment for non-payment of rent. Counter-claim for rectification 
 of lease so as to state terms by which no rent would be due : tVi/vu' v. CArtrf"- 
 phtr, 10 L. R. Ir. 38. 
 
 Action of ejectment by heir against widow. Counter-claim for dower; 
 OUmii v. (Haas. 9 P. R. 14. 
 
 Action for recovery of land and mesne profits. Counter-claim for damagw 
 for illegal distress against |)laintiff and his bailiff •. fiockstader v. /'Aw", ^ 
 P. R. 204. 
 
 for non-deliverv of balance of 
 1 Charl. Ch. Ca. W) ; see Ffiiion 
 . J. 11. 
 
 Counter-claim for extras due 
 
COUNTER-CLAIMS. 
 
 4ia 
 
 A counter-claim was allowed claiming against an assignee a sot-oflF of damages Rule 874. 
 due from tlie assignor : Vounif v. Kilcfien, 3 Ex. D. 127 ; Kxcharu/e /tank v. Counter- 
 Stitum, 32 C. P. 158 ; see Pellas v. Neptune Marine Ass. Co., 5 C. P. D. 34. "jf^^ 
 
 Where A. »wA B. on a bill and B. defended by alleging that A. was really 
 tniBtee for C. who owed B. money, B. was allowed to oring in C. and claim 
 set-off : Mdcdiinald v. ISiide, W. N. 187C, 23 ; but this case was disapproved of 
 in TagaH v. Marcus, 3(5 W. R. 409 ; see infra, p. 414. 
 
 Action to declare a will. Counter-claim projxjunding two earlier wills, 
 under wiiich defendant claimed in the event of the last in date being invi^lid 
 Applmuu V. A]ipleman, 12 P. R. 138. 
 
 Action by ai! executor for detention of the g<Kxls of his testator. Counter- 
 claim for funeral exiwnHes paid by the defendant and a debt due to him 
 from the testator before his death : Watkin v. Newcitmen, 1 Cab. & El. 113. 
 
 Action for the recovery of land. Counter-claim for damages in res|>ect of a 
 trespass by the plaintiff on the lands in (piestion and for an assault : (Jorini/ v. 
 tV(«M;roH, 10 P. R. 4!MJ. 
 
 Action by executors to charge a married woman's estate with a debt to their 
 testator. Counter-claim by her and her husband, also a defendant, for money 
 belonging to the wife, not i)art of her separate estate, and for chattels in the 
 possession of the testator at his death, and alleged to be the property of the 
 nuslmud : llodsun v. Mochi, 8 Ch. D. .50!). 
 
 Action by ccxtuis que truntent against a surviving trustee to make good 
 purchase numey of testator's share of a nartnership business, allowed to 
 remain outHtan(iing. C<mnter-olaim to be inaemnified by&llcestuis que trustent 
 including the plamtiffs, as the retention of the money by the surviving 
 partner was by consent of testator's children : Re Holmet, Wrvjht v. Weather- 
 head, W. N. 1883, 110. 
 
 Action j)ro|xjunding will of defendant's wife, who had obtained a protection 
 order. Count«!r-claim to set aside the protection order as fraudulent, pro- 
 nounce against the will, and for letters of administraticm : Mudge v. Adams, 
 50 L J. Pro. 4!» ; 17 C. L. J. 3«9. 
 
 A mortgagor was allowed to set up, in a foreclosure suit, a claim to oi)en 
 signed accounts ; Eyre v. Hwjhes, 2 Cfi. D. 148. 
 
 A County Court judgment was allowed to be set off against a judgment 
 ofaSu|)eriorCourt: Sandys v. Louis, W. N. 1875, 249; 1 Charl. Ch. Ca. 81. 
 
 Action by a truste** in Bankruptcy for unpaid price of a chattel purchased 
 from the banknipt. Counter-claim for fraudulent representation made by the 
 bankrupt on the sale : Jack v. Kipping, 9 Q. B. D. 113. 
 
 M. and C. are partners with B. in London and Honduras ; the two firms 
 are sejiarate. Actions by M. and C. against the London firm as agents of 
 the Honduras finn for an account. B. had a decree in Honduras for the 
 taking of partnership accounts there, and the London firm asked by counter- 
 claim for the accounts of the Honduras firm to be taken : Mutrie v. Binneu, 
 35Ch. D. (il4; 3(i W. R. 131. 
 
 On the other hand, counter-claims will not be allowed to Ix? set up Connter- 
 which cannot be the subject of an action : see liawky v. liawley, and other claims not 
 cases, p. 4(W, or which raise questic ns njt capable of being amveniently tried allowed. 
 
 m the actiim. 
 
 Counter-claims Disallowed.— ExampleB.— In an action of assault and battery, 
 ^uam, .1,, Haid that lie would not allow a counter-claim to be set up for s.^duc- 
 tion (,f tlie defendant's daughter : Vappeleus v. Brown, W. N. 187.5, 231 ; 1 
 Charl. Ch. Ca. 77. 
 
 Action for assaidt. A counter-claim for breach of agreement to repair a 
 house was stniok out, though an endeavour was made to connect the causes 
 «i action liy showing that the parties were talliing alniut the state of the 
 hnuM,at the time of the assault : Lee v. Cdyer, W. N. 1876, 8; 1 Charl. Ch. 
 
 Action for lilx-l consisting in the circulati(m of a letter by defendant 
 uniimg the shareholders of a colliery company. The plaintiff was one of the 
 
 'A 
 
414 
 
 PLEADINaS. 
 
 *^' 
 
 Rule 376. clirectorH in the numpany, who were charged in the letter with coiiHpiracy 
 Counter- ^*^'^ fraud. Counter-claim fur daina^'ea for loss HiiRtained in reH|)ect of shana 
 -claiing not Ix night on false representations. Lindley, J., said: "This is one of thuw 
 Allowed. cases where it would be very difficult to keep the jury from mixing up the 
 two claims." The counter-claim 'vas therefore struck out without pre- 
 judice to any action defendant might bring, and the plaintiff was put ou 
 terms not to issue execution on any judgnient he might obtain without 
 leave of the Court or a Judge : Nichohitn v. Jackson, W. N. 187(), 38 ; 2 Charl 
 Ch. Ca. 37. 
 
 Action for the si^cifio i)erfonnance by S. of an agreement for purchane 
 by hint of certain |)atent rights. H. and N., who were made co-defendants 
 as claiming some interest in the subject-matter of the contract, alleged that the 
 plaintiff had agreed to sell to them, and not to U., and that they hod after- 
 wards agreed to sell to S. By counter-fI..i.i H. and N. asked for sjiecific 
 I)erfomiance by the plaintiff of his agreement with them, and by 8. of hiii 
 siilwequent agreement with tiiem. The counter-claim was excluded : McLay 
 V. Sharp, W. N. 1877, 21 «. 
 
 Action against trustees of a settlement iur breach of trust. Counter-claim 
 against the husband of a ]>Iaintiff (also a plaintiff) for £'45, due on a bill uf 
 exchange : Fendall v. O'Vonnell, .52 L. T. N. S. 538. 
 
 Acticm against an indorser on a proinissory note. Defence, tiiat it was to 
 be i)aid out of a certain agency in which the defendant and the maker of th« 
 note were engaged, and that the plaintiff by libel and slander of the defendant 
 had prevented that business from going on. Counter-claim for damogea for 
 the lil)el and slander : Ventral Bank v. Osborne, 12 P. R. 1(50. 
 
 Action of trover and for goods sold and delivered. Defendant was not 
 allowed to set-off a claim against a third party, though such thin! party was 
 the principal of the plaintiff : Taiiart v. Marcus, 30 W. R. AiVi. 
 
 Action for foreclosure. Counter-claim for damages by rea-son of false and 
 depreciative statements in regard to the value of the mortgaged premises: 
 Odell v. Bennett, 13 P. R. 10; see also Lynch v. Alacdonald, 37 Ch. 1). 2ZI. 
 
 Action to recover land for non-payment of rent. Counter-claim not con- 
 nected with plaintiff's demand, in the absence of siiecial circumstances dis- 
 allowed : nUdiijc V. O'Farrell, 8 L. R. Ir. 158. 
 
 Action by A. against B. for trover of goods which C. assigned by bill of sale 
 to A., and which B. had seized. Counter-claim by B. alleging a bill of sale 
 from C. to him and claiming relief against C. upon it. So far as ckini 
 against C. was concerned, it was held not sufficiently connected with the 
 original cause of action : Barber v. Blaibeiy, 19 Ch. D. 473. 
 
 Action for siKJcific perfonnance by vendor against purchaser. Counter-claim 
 for a comparatively small amount of money owing, as the result of an account, 
 by plaintiff to defendant, and which the latter claimed to set-off against the 
 purchase^ money. Counter-claim exclude<l as irrelevant to original claim and 
 becaijse it wouki be inexpedient to try the two claims together, and would 
 »mduly delay the action to investigate the account : Gray v. Webb, 21 Ch. D. 
 802. 
 
 Action by liquidator for calls against a newspaper proprietor. Counter- 
 claim for price of advertisements and damages : Uovernment Security Invat. 
 Co. V. Demfrey, 50 L. J. q. B. 1»!». 
 
 Action for damages for negligence. Counter-claim for libel : McLean v. 
 Hamilton Street Ry. Co., 11 P. R. 193. 
 
 Where a counter-claim is not excluded, it is still a question of convenience 
 and in the discretion of the Court, whether the action and counter-claim should 
 be tried together or separately : Re Woodjine, Thoriipton v. Woodjine, 47 L, J. 
 Chy. 832 ; 38 L, T. N. S. 753. 
 
 for^SSilnce *'^** Where in any action a counter-claim is estab- 
 o°'oounter- lished against the plaintiffs claim, the Court may, if the 
 *'*'" balance is in favour of the defendant, give judgment for 
 
r"^ 
 
 COUNTBR-CLAIMS. 
 
 415 
 
 the defendant for such balance, or may otherwise adjudge *^* *'•• 
 to the defendant such relief as he may be ehtitled to upon 
 the merits of the case. J. A. Rule 169. 
 
 SameftH tlie Eng. R. 1875, O. 22, r. 10 (1883, R. Z'iO). 
 
 " The balance in favour of tlio dofendaiit ; " tlmsK worfls mean the balance 
 umm the hearing of the action : Jtolfr v. McLann, 3 Cli. I). lOli. .ludgnient 
 uiwn the coimter-clainj may give the defendant oonij)let<< relief us in an inde- 
 iiendent action, bv orclering payment of any balance found in his favour : Staples 
 V. Ynunij, 2 Ex. I). 324 ; tir '7 awaitling to him such otiier relief as he may 
 be entitled to. In Horrocks v. Rii/hi/, 2('t W. R. 714, a defendant, who had pur- 
 chaaed the entirety of a leasehold, resisted a claim tigainst him for sjjecific jH^r- 
 formance of a contract for sale of a moiety of the leasehold ; he was also mort- 
 gagee, and in the latter cajtacity, as alternative relief by way of counter-claim, 
 he called u[)on the jjlaintifT to i-edeem him, and it was held that he was so 
 entitled, with his costs as of a foreclosure suit. 
 
 As to costs, where a balance is found in favor of the defendant, and in other 
 casejf of claims and counter-claims tried together, see SUiples v. Yountj, supra ; 
 Blake v. AjtfJeijnnl, 3 Ex. D. 195 ; Potter v. Chambers, 4 C. P. D. ()!> and 4.57 ; 
 Chatlifld V. Sedijewick, ib., 459; Bairns v. Bromley, C Q. B. D. 197, 091 and 
 note.s ti') Rule 1170. 
 
 Where the plaintiff claimed £49 12s. and defendant admitted the claim and 
 oounter-clainied for £75, and judgment was given for the plaintiff in his claim 
 and for defendant in £40 on his counter-claim, it was ordered that the )>lain- 
 tiif should have costs of his claim and the defendant costs of his counter-claim, 
 which was interpreted to mean that tlie ])lainti(T should have costs up tt) the 
 delivery of tlieir defence, and the defendant his costs after that time : Bowker 
 V. Ketttvvn, 47 L. T. N. S. 545. 
 
 376. Where a defendant sets up any counter-claim where 
 which raises questions between himself and the plaintiff ciaim*'^ 
 along with any other person or persons, he shall [entitle it u"rd'per- 
 as a statement of claim] setting forth the names of all the ^°^^- 
 persons who, if such counter-claim were to be enforced by 
 cross-action, would be defendants to such cross-action, and 
 shall deliver his counter-claim to such of them as are 
 parties to the action within the period within which he is 
 required to deliver it to the plaintiff. J. A. Rule 164. 
 
 The original Rule 164, instead of the words in brackets, had "add to the 
 title of his defence a further title similar to the title in a statement of claim," 
 following the Eng. R 1875, O. 22, r. 5(1883, R. 244). 
 
 For the practice whore iiersons not already parties to the action are made 
 defendants to the counter-claim : see note to Rule 373, and Vertiey v. Thomas 
 36W. R.393; 58 L. T. N. S. 20. 
 
 Where defendant in an action on a note shewed that the note had been 
 t™n»feiTed to the plaintiffs to secure a debt of the payee, one T. N., to them, 
 which debt had been satisfied since the commencement of the action, and the 
 defendant swore that he had a ^ood defence on the merits against T. N. it was 
 held that this RiUe had no application, but that the jilaintiffs admitting these 
 facts were entitled to their costs under Rule 440, and the cause of action having 
 devolved ujwn T. N., he was entitled to continue it by taking out an order 
 under Rule 022 : Osluiiva Cabinet Co. v. A'ote, 18 C. L. J. 60. 
 
 A third jierson made a defendant to a counter-claim is not entitled to enter 
 an appearance until he has been served with the counter-claini ; and if he 
 appears without having been so served, the appearance may be discharged on 
 motion by the plaintiff in the counter-claim : Fraser v. Coo^ier, 23 Ch. D. <»5. 
 
 ■fc'liS 
 
416 PLEADINOS. 
 
 BnlM Where, in an action for the price of iron, the defendant set up a count«r- 
 
 877-379.] claim for a dttdiiction, which fie hod had U> allow a purchaser, owing to the 
 inferiority of the qualit}: of the iron, it wan held unneceasary to add the pur- 
 chaser'H name to the title of the action: see Anon, (K) L. T. Jour. 66; I 
 Charl. Ch. Ca. 85, per Luah, .T., who Haid Order 22, Rule 5 (correHjjonding to 
 the preitont Rule), does not api)ly to such a case : see aim Williams v. Wriak 
 W. N. 1875, 232. 
 
 woun^V*' 8'y*y» Where any such person as in the last preceding 
 claim on Bule mentioned is not a party to the action, he shall be 
 thirdparty. gyjjjnjoned ^q appear by being served with a copy of the 
 counter-claim, and such service shall be regulated by the 
 same rules as are hereinbefore contained with respect to 
 the service of a writ of summons, and every counter-claim 
 so served shall be indorsed in the Form No. 19 in the 
 Appendix or to the like effect. J. A. Rule 165. 
 
 Same as the Eng. R. 187.'j, O. 22, r. 0, (1883, R. 24.5). 
 
 For the RtUeg in resi)ect to service of writs of Hummons, «««• No«. 22.5 and 
 272. 
 
 It was held in Fraser v. Cooper, 23 Ch. D. 68.5, that a person not a {wrtjr 
 when made a defendant to a counter-claim is not entitled to apjiear gratiH. 
 
 
 Appear- 37^i* Any person not a defendant to the action, who is 
 thirdparty. served with a counter-claim as aforesaid, must appear 
 
 thereto as if he had been served with a writ of summons to 
 
 appear in an action. J. A. Eule 166. 
 
 Same us the Eng. R. 1875, O. 22, r. 7, (1883, R. 240). 
 
 Probably it would have been l)etter if the words "not already a party " had 
 been used instead of the words "not a defendant." The plaintiii doubtless 
 need not apjiear, and the (M^rson referred to, who must ap|x;ar, in the third party 
 mentioned in Rule 377. 
 
 See RiUen 275 ct. geq., as to appearance. 
 
 From Verney v. Thmnan, 3G W. R. 393 ; .58 L. T. N. S. 20, it would seem 
 that the same steps may l>e taken on default of appearance as might be takm 
 by a plaintiff. 
 
 Defence by 370. Any pcrson, including the plaintiff, named as a 
 party, ^^^^y j^ ^ countcr-claim, may deliver a [defence] thereto 
 as if it were a statement of claim. J. A. Eule 167. 
 
 The original Rule had "reply " instead of " defence " following the Eng. R. 
 1875, O. 22, r. 8, (1883, R. 247). 
 
 Notwithstanding this Rule the plaintiff's defence to a counterclaim is techm- 
 cally his rtiply in tlie acti(m : Irwin v. Brown, 12 P. R. (530. 
 
 The time for delivery of defence to the counter-claim will be eight days from 
 the delivery of the defence containing the counter-claim : see Rvlet 371, 
 380. 
 
 A third party was held, under the original Rulf, to lie limited to a "reply; 
 and might not counter-claim against a defendant who brought him in : <"*«(■< 
 v. Gover, 2 Q. B. D. 498. The contrary has since been decided iu Ont. under 
 the present Rules, possibly by reason of the altered tenns of this Rule : Cr-w 
 V. Thornton, 9 C. L. T. 139. See supra p. 408. See also Edm v. Weardak, 
 28 Ch. D. at p. 338. 
 
^1 
 
 REPLY AND SUBSEQUENT PLEADINGS. 
 
 417 
 
 The plaintiff inny countor-cluiin in re]>ly to the defendant'H countctr-claim : Rttlt 380. 
 Tvke V. AiidnWK, Hq. H. D. 42H. , j,^ 
 
 8H0. The plaintitf shall deliver his defence to the Time for -^"^ '^'«- 
 
 counter-claim within B da^s fiom service thereof on him 
 yeir. 
 
 This Itiilc vhwi'H a construction u|Kin HiileK 371, 37ft, 381. 
 
 Tlicrc is no siniilur lOnglixh K\il(>, imd the conHtruction |>ltvce<l u)Mm tho 
 Kiiglisli Itiiics corrt'HiM^Klinjr to J{ii/fs 371, 37!* and 381, hiin bt'cn ditft-nait, the 
 j.liiiiititf l«'in),' lii'ld tt) liavf llie 21 days mentioned in /liili 381, witliin which to 
 ivply to the iMiunter-elaim : Jluvilrii v. If //(«, 22 '^. 15. D. 2t>5. Hfv Irwin v. 
 Hivua, .'^iijirii, and Jiiile 435. 
 
 IlEPLY AND SUBSEQUENT PLEADINGS. 
 
 At Common Law, no time was limited for reply ; l»\it the defendant might 
 CDinpcl a reply by giving with hiw plea notice to reply in four <lays, utlierwise 
 jiidgincnt. In ChancHry, replication wan recjuinKl to l>e tiled, or tlie caiiHe set 
 down to l)e heard on hill and answer, or nuition for decree, within one month 
 after the tiling of tiie lastanswerof all tile defendants : Chy. O. 162 ; otherwise 
 tlif (Itfcnciant might move to dismiss: Chy. O. 273. 
 
 At Connnon Ijaw, the re))licatioii was »'ither a snnple joinder of issue, or set 
 \\\t s|iecial matter, according to the fonn of the previous jdeivs. In Chancery, 
 theUen. Ord. lotiand 151 made pn>vi8ion for admissions in the rejilication of 
 facts set forth in the answer : but in practice, admissions wer" seldom, if ever, 
 made in that way ; and the n'plication was men-ly a formal joinder of issue 
 which closed the pleiulingti. If the plaintiff wisheil to reply spi^ial matter, 
 that could only l)e done by an amendment of the bill : Cojr y. Kmtiny, G P. R. 
 Slli 
 
 In WiUimmon v. L. •{• N. 11'. /f//. Co., 12 Ch. D. at p. 7!H) ; Hall, V.C., 
 said : "When the Rules were jirejMired, the view wiis taken that, after defenw 
 new matter shoidd generally Ihj introduced by way <if amendment, and 
 that is in uiy oninion the more consistent course, but it has not been in fact 
 always enforced as the rule under the ( Jeneral ( )rdei>i. " The tendency of the 
 English authorities seems, however, to l>e towan is the Common Ijaw plan of 
 ulk'ging in a reply any new matter on which the plaintiff relies by way of con- 
 feasion and avoidance : see Hall v. Ert; 4 Ch. D. 341 ; 4(> L. .J. Chy. 146 ; 35 
 L. T. N. S. !t2() ; 25 W. R. 177. Under the Ontario Rulesof i)leadingthe plain- 
 tiff may either reply, or amend his statement of claim. All the fonns of reply 
 4{iven in the Appendix are prefaced by a note to tho effect that the form of 
 reply gi\en is to be use<l whertt the plaintiff doea not intrtKluce into his state- 
 ment uf claim, by way of amendment, the allegations necessary by way of reply 
 tu the defeiK^e ; and, in the oases in which fonns of replies ure given, the mode 
 in whiuli the matter in reply might be introduced into the statement of claim 
 by anuiKhuent is also given (see Nos. 60, U5, G7, 70, 79, 83 ; also RtUe 435). 
 Where a reply is used it may traverse the allegations made in the defence, or 
 «onfe88 and avoid them, or both : HtUl v. Eve, supra. 
 
 A reply must not set up new claims ; or refer to an independent document 
 «« containing facts on whioh the pleader relies, without properly setting out 
 Kuch document as part of the reply ; and, like other pleadmgs, it must not 
 i*t«te evidence, argument, or conolusious of law ; see Rule 39ft and Williamtmi 
 V. LAS. W. By. Co., 12 Ch. D. 790, and VullambeU v. Flight, W. N. 1877, 
 125. 
 
 A reply is to be delivered within three weeks after the last of the defences : 
 
 Itvle 381. 
 
 As to the reply to a counter-claim : see Rules 379, 380 and 435. 
 
 As to the further reply to a counter-claim founded on matter arising after 
 the reply : see RiUe 437. 
 
 delivery, t^^ 
 
 / < 
 
 P. / 
 
 J.A. 
 
 27 
 
 h. 
 
la ' w a *t « 
 
 7 S 
 
 ) I 
 
 418 
 
 PLEADINOB. 
 
 m 383 SSI. A plaintiff shall deliver his reply, if any, within 15 
 
 Delivery of weeks after the defence or the last of the defences shall 
 'epiy. have heen delivered, unjess the time shall he extended by 
 the Court or a Judge. J. A. llule 173. 
 
 Hftine iw Kng. R. 187"), O. '.'4, r. 1, (18HH K. 27(1). 
 
 The hint (if the (Icffiiccn iiiciiiirt tho hist (h-ffiicc of all tlic (li-ffiiccH ; mcc 
 t'nI/Ht V. I'ri'sliiii, .■JMiic. & (i. 432; .\ni<>l<l v. .\riinlil,\\ iJ.-ivv. 2<Mi; llnh.lmi. 
 V. JiiJiustiiiii; 2 Hii. VuiH; ('hy. O. 11)2; iind Amlimim- v. Kirli/ii, 11 (Jh. I),, at 
 jj. 7(i2. 
 
 Lontf voijivtion is not irckoiied in coniputiiiK tin- tiiiir ; Hiilc 4S4. A«ti) 
 (txtoiiding tht! time : sen notcH to Rn/fi 3iW, .S71 mid 485. 
 
 A reply delivertHl afU^r the three weeks, and without uii extension of tiinv 
 wiw held in-ej^iilar anil wet aside, tiie pleadingn having, )iv linli 'M'J!, U'vimu- 
 cloHcd : U'rhh V. AV,y, 14 L. R. Ir. 2it4. 
 
 Where a I"! ply was deli veivd vilhiiiil Ifinr. after the time, and iH'foif notice 
 of motion for jiiilgnient, it wan iield to have the effect of prevt'ntin^f noticecit 
 motion l)uing giv.'-n for judgment, \inder the KngliHh RuleH, on uihniKNiunof 
 the defence by deufidt of i*eply : (•'riiirfi v. Tfiri/,i\ i^. H. I>. 17(1; Hce also 
 noteH to UnlM IMW), .Td. 
 
 Where the time to deliver reply wonUl have expired on 2r>th .lulv hut wan 
 e;.tend«Hl to 22nd AugnHt, and afterwanls to llttn S^'ptemher, M\t\ on 2Cth 
 SepteKilier, no reply having l)een filed, the defendant tcKik primeedinifH war- 
 ranted by the KngliHh, (though not by the Ontario RuleH,) to obtain juagiiD'iit 
 aH ui\ lulnnNHioUM by reatton of the default, and on the Hiiine day tiie pluintifT, 
 by leave, served notice for leave to delivtT a rejily ; leave wan ref\iHe(l by tht! 
 Judge of first instance on the ground of unexplained delay, hut wan grimtwl 
 on payment of costs by the Court of Apical ; hatnn v. Simi'i; 22 Cii, I). !tl. 
 
 Leave for 3H2. No pleading suhsequent to reply other than a 
 pieadingB. joinder of issue shall be pleaded without leave of the Court 
 
 or a Judge, and then upon such terms as the Court or 
 
 Judge thinks fit. J. A. Rule 174. 
 
 Same as Kng. R. 1875, (). 24, r. 2, (1883 R. 277). 
 
 Pleadings cannot go Iwyond reply without leave, except that the (lefeiidsnt 
 may join issue if he chtxwes. That, however, would not seem to \h' eNsential, 
 astlie i>leadings are deemed to be closed without joinder of issue, at the expira- 
 tion of the time within which the delivery of subsequent pleadings is necfw»ary. 
 Riilen 38H and 3!)2. If the plaintiff replies s]MK!ially, it may be neceHsary for a 
 defendant, either to amemi his statement of defence or to rejoin, ho as to set 
 up some new feature in the case, in the nature i)erhapH of a confeHsion and 
 avoidance, or something destroying the effect of tne I'eply : see W'illitniiJion v. 
 L. ct lY. \V. Ry. Co., 12 Ch. I). 7112-3. In such case a defendant is only allowed 
 to introduce by amendment, without leave, new matter where he has net up a 
 counter-claim or set-off : llule 42rt; in other cases it will be neceHsury for him 
 to apply for leave to amend or rejoin. 
 
 In Norrin v. nmz/fi/, 35 L. T. N. S. 845, leave to rejoin was refiinwl, thi' 
 proposed rejoinder being Hfgarded as tjnnecessary, and only amounting to a 
 statement of matters contained in the statement of defence in a more dpt)iil»<l 
 way. 
 
 In Kf'in.i v. (/aiDi, W. X. 1875, UK), leave was granted to add a counter- 
 claim after issue joine<l. 
 
 Time for 
 delivery. 
 
 SH3* Subject to the last preceding Rule, every pleading 
 subsequent to reply shall be delivered vfithin 4 days after 
 
DEMTnmKH. 
 
 the delivery of the previous pleading, unless the time is 
 extended by the Court or a .Tu(l{^(!. J. A. Rule 175. 
 
 lil..ntinil witli Kiig. K. is:.-), (). 21, r. 3 (IS«3 U. U7«). 
 
 410 
 
 Rule 384. 
 
 5i. nKMiiinKR*'? 
 
 /^a^<-.A''^ >^''-^' /vJ^^ 
 
 :|H I. Any party may (hsniur to any pleading of the J^f/nj"""' Z^^'^^l^, 
 opposite party, or to any part of a pleading setting up a allowed. /\'^^ 
 distinct cause of action, ground of defence, counter-claim, . ^ ^-.-. -r^"-^'" 
 reply, or as the case may be, on the ground that the facts '/C -^ vr /- < 
 alleged therein, do not shew any cause of action or ground 
 of defence to a claim or any part thereof, or counter-claim, 
 or reply, or as the case may be, to which effect can be given 
 by the Court as against the party demurring. J. A. Rule 
 189. 
 
 Sanif as Kiig. R. 1875, (). 2«, r. 1. 
 
 Tilt' Kiitf. Kulcs of 1SX3 liivvc iilxiliMliHd dciinirrers and .sul)Htitut«fl a pro- 
 (■♦Hlurc liy which (1) pointH of law raisfil in )i1*-arlinKH may \w fliH|K)H«'(l of 
 ln'forc trial, and (2) a ploadinf? diHclosinK »" rfasonal)l<' oauHw of action may 
 be stnu'k out on motion : ncc ( >nl('i' 2i">. 
 
 Where a plea<)inK on its fiwc clearly sliewH no ground of action, the op|K>- Wbende- 
 8it«j)iirty may, and generally Hhould, denmr : see f'liiiiiiiii/fim v. (/. .V. K//. <'»., murrer 
 4!l L. T." X. f^. 3!)2; .itli>rii'di-('''-iiriv/ v. nir„iiiii/lwvi, 17 Ch. I), mrt; f/W/'- may bo 
 Jilh.i V. LoikI,.;, ,(■ .SY. Kath/rh,,- Ih.rku C,,., W. N. 1884, m ; 51 L. T. N. H. 533. ^*"* "" 
 A counter-claim may 1»* demmred to if it dinchmeM no caiwe of action : The 
 Vharlen Xnjiii'i; 5 1*. I). 73. 
 
 A purty, whose jileading is demurred to, may still serve a notice of excep- 
 tion to tile plea<ling of the (>p|M>site party : (f himnell v. hiivlwnaiiU, 14 Ont. 1. 
 
 If a i>aragraph of a |ileading deals with a distinct gronnd of action or 
 defpiice, the pn^ier course for the party objecting thereto is to demur, and 
 not to apiily to strike it out : WiiIkhh v. Iltivkiim, 24 W. R. 884. 
 
 Whereon the pleading some relief might lie givi^n, though not what was 
 siiecifically mentioned, a demurrer was over-ruled : Huli' v. Rmixlead, SO 
 W. R. ()77 ; .'il L. .1. (I 15. 255 ; 4(i L. T. N. S. .5;»3 ; I'c/'/i'/ v. Jiiiherlsn-, 2 
 Ont. 434. 
 
 Ill an action against the owner of a tug by a siiip owner for im|)ro|)er lllufltra- 
 navigation, the defence was, that the liability of dt^fendant was limitixl tions. 
 under sec. 'A of the Merchant Shipping Act, 18(52, to !?8 per ton of the tug's 
 tonnage. On demurrer by the plaintitf, the Court held (though it over- 
 ruled the demurrer) that the rlefence was pro|)erly pleiwled ivs a distinct defence 
 /<m tniitii, a statement of flefenw lieing the only m(xle in which it could lie 
 net up; and that if so i)ro|)erly pl(>aded as a distinct ground of defence, it 
 WW a |)ro|)ei^Hubject of demurrer under the preK< it /(H/r 
 
 24 W. R. 847. 
 
 Wtt/illierij V. Yimnij, 
 
 Where jiiHtices iiad under a HjXicial statute made an oi-der directing th«< 
 gnardiaiiH of a union to jwy £100 for the support of a pauper lunatic, and 
 an action was brought under the Act to e.iforce the order, the guardians 
 defended; the Qneen's Bench Division refuse! to strike out the defence as 
 frivolous, the guardians being entitled to c'efend, and held that, if tlie^ 
 defence shewed no answer to the plaintiff's cane, the plaintiff should demur : 
 tmch v. Uuardians of the York Union, Xi J,. T. N. S. 3G0. 
 
 A statement of claim alleging siniiily that a g(Kxl and valid ilonatio mortix 
 tnum had been made, without stating the facts whicli constituted it, was held 
 to be demurrable : He l'ait«a, Tomixi'iiil v. P(tH(m, 30 W. R. 287 ; 45 L. T. 
 
420 
 
 PLEADIN08. 
 
 m 
 
 !* ..'m I 
 
 Aale384. 
 
 When 
 RhuuUI not 
 be em- 
 ployud. 
 
 Demurrer 
 for want of 
 parties or 
 misjoindor 
 abolished. 
 
 N. S. 7C^>. Ill rtiicli II citMc II (Ifiiiiirrfi' could niily 1«muI to uii ivincii<liiii'iit, and, 
 thiTdfon- |M-rliii|iN, u |iro|M'r courwi would l)o to upply to Htrikuuut the pli'iuliiiK 
 iM fnibarriiKHiii)^, 
 
 .Since the •ludicatiirt' A<!t the uhh of deiinirriTM Im diHCMiuriv^ccI \>y the i'min, 
 fxcfpt ill ciiHt's wIk'I'i' tilt- wliolt' (|uimtioii or a HuliMttuitiiil question in unitid' 
 vtTHy niiiy im (It-ciiicd upon the dt-iiiurrfr : t*vf uuU; to lli'li' iWT). 
 
 Wlicn-vcr, tiicr*'for<', ii (Ifniurrcr will not diHixim'of a Hulmtantial ((ucNtion in 
 tlift action it Khould not 1h! (.'inploycil : hcc <t niut v. lidili/, 21 (Jr. WW ; lliiiniiln 
 V. Miiij-, '21> <ir. 17!*. TliUH, a dcniiirrcr to an unci-rtain or iinihiKuotinplciwIinj; 
 IK inipropt-r ; application Mliould Im' nuul« to Htrikt- it out : Altiiriii-i/it'nii:iiU v. 
 MiiUiiiiil, 'A Ont. 511. Ho in Smiir v. hinki'll, 3 Ont. 37<>, it wan I'lcld (1) that 
 tluMibji'ction that a HolicitorV hill siit^d on wiih not delivered a month U-fon- 
 action, Hliould Ik- tak<ai by dt-fcnce and not by dtmiurrfr, unl«HHthi< claim hHuwk 
 that it wiiH (IflivcrMl Ichh than u month ; and (2) that tlif omiMHion in aclaiui 
 by a nimplc contriu;t crmlitor to Htat« that he huhh on lM<lialf of all crcditorH in 
 an action to Mut iwid*' a conv«'yanc<^ aw frauduhtnt against cr«'ditorM, is not the 
 proper Hubjt>ct of a demurrer, but the objection Hhould b<- taken, hh soon im the 
 writ is nerved, under Ritlf 324, vt my. If the reprcHentative character in wliicli 
 the plaintiff HueH is indori<ed on the writ, the Htatement of claim will lie read for 
 the purposes of a demurrer as if that fact were stated therein : .lulinsm v. 
 Jiiinjcii, 47 L. .1. Chy. 5.52. 
 
 For similar reasons there is now no such thing as a demurrer for wuiit of 
 parties: }y rriUrman v. Sociite, d^nirak h'ElectricUi, 10 Ch. I). 24(1 ; Jlunler 
 V. YtiHiiij, 4 Kx. D. 2.5(1 ; or for misjoinder of parties : Younii v. Jtolicrtmn, 2 
 Ont. 434 ; /{li(/,v v. Moore, 8 L. K. Ir. i(5 ; the projmr courmt Iniing for the 
 defendant making the objection to apply under link 324, to luld the necoHHurv 
 parties, or amend as the case may require : se(! castis mipra. .So- also as t(i thi.i 
 practice : Ahiiulnff v. ihtpenheinn'i; 3() W. II. 42U, where a statement of defeiicf 
 alleging that the plaintiff was at the time of bringing the action a married 
 woman, was held to be only an informal plea in abatement, and therefdre no 
 defence ; and it was |M)inted out that the i)roi)er course was for the defendant 
 to obtain an onler to join the husband. In J/tinnick/i v. Ldhlarht; 3 C. P. D, 
 107, however, a dennirrer by a married woman defendant, <mthe gniuiid that 
 she could not be sued without her husband, was allowed. 
 
 The defendant should at any rate take the objection by defence as early .i» 
 possible, so that the ]>laintiff may, if so advised, add parties or amend : nee 
 Sheehaii v. (/. K. Jiy. Co., 16 Ch. I). (53 ; A'obel'.i Keplosiirs Co. v. Jones, 28 
 W. R. (553 : and note to Rule 324. 
 
 A demurrer on the ground that the plaintiflf is not a person who can maintain 
 the action, will, however, lie, and is not a demurrer for want of parties : Mc- 
 Cknatfhan v. (Jrci/, 4 Ont. 320. 
 
 A demurrer will not lie, except perhaps for impertinence, in an action to 
 recover land : Scott v. Crekjhton, 2 C. L. T. 548. 
 
 Want of interest in the greater nart of the matters in question is no ground 
 for demurrer : Cox v. Barker, 3 Cn. D. 350. 
 
 The former rule of the Court of Chancery that a defendant cannot demur to 
 what he has previously answered : see Dan. Prac., 5th «!., p. 643, is no longer 
 in force ; so tnat a defendant who had not originally demurred to a statement 
 of claim was held entitled to demur to part of the statement of claim in his 
 amended statement of defence : Pmvell v. Jewesburu, Ch. D. 34. This was not 
 formerly allowed : Attomey-Oenernl v. Cooper, 8 Ha. 166, unless the nature of 
 the case made by the bill had been changed by amendment : Cresy v. Sevan, 
 13 .Sim. 364. 
 
 As to demurrer to part of a pleading : see note to Mule 385. 
 
 Doubtful The Court need not on demurrer decide a doubtful question, but n'Y-'-H''"'in 
 questions the case to be brought to a hearing in the usual way : Cochrane v. Willu, W 
 joea notbe j^j. jj. g. ig2 ; Cox v. Jiarker, 3 Ch. D. 350. Where a Judge has considered 
 demuwe*?^ that the question ought not to be decided on demurrer, his decision will not 
 
 ordinarily be reviewtd in apmal : Sheffiekl Water Works v. Veomann, L. R. * 
 
 Chy. 8. 
 
 Action for 
 recovery of 
 land. 
 
 Multifari- 
 ousnesB. 
 
 Demurrer 
 to pleading 
 previously 
 answered. 
 
 Wliere 
 wiis held 
 i'mmilii (', 
 .■(fete. 
 
 A (Iciin; 
 W11.S also 
 answer to 
 iiiiHWcr," J 
 I'ill": /),. 
 2 (ir. HO. 
 
 A dcnii;. 
 defenct! \v 
 demurred 
 the same 
 
DRMURRBR. 
 
 491 
 
 RutoSM 
 
 K 
 
 Costs 
 
 where pM- 
 ties plead 
 Instead of 
 demurring. 
 
 Ah to raJHing thn qiieHtioii of t\w Htatiite of LiinitutioiiH or Statute of 
 I'ruudH l>y <l»'ii»irrer : st* nott'M to Hiilen 4()2 and 413, and Vane v. I'ane, L. R. 
 H Chy. m. 
 
 Where li ]K)iiit which will detennine tin* miit iH appHront on tho faco of the 
 plaintiff^ Htiitenient of cluini, ho that it might Ihi rniNed by demurrer if the 
 iHition Im' (liHUiiNHed on that iH)int, the defendant will Im- entitled only to the 
 (uiHtH att of II (lemurrer allowed : Atlnniry-di'ncral v. t'lim/MI, li)(ir. 3()2; and 
 vhur^eH of friiiul liuvu litntn held not to juHtify a dtifondant in anHWiTing iuHteiul 
 of (It'iiiiiri'inK : •'•Iniinilfr.i v. Slut/, 18 (Jr. 5)K), Full coHtH wer«', however. 
 ullowtMl where Mevenil im|iortant (jueHtionK of law and fiuit were involvc<l, and 
 the c'liHe wuH not one whioh rained a ninKle or Himple (picstion capable of being 
 (liit|M)se(l of by demurrer: Siniiinnii v. (/nnil, T) (Jr. '2(u. The later Chancery 
 ciwex in Kiigliind, prior to the Judicature ActH, tend to whow that tiie qiumtion 
 of costH is in tlie discretion of tho Court, and the Court w ill irenerally exerciHu 
 its (liw^retion ho uh not to deprive the defendiint of Iuh full cohIh : /iimh v. 
 Tivvhrlili/e Water U'mix Co., L. K. 10 Chv. I.V.I ; /V//,',r v. Watts, L. K. 20 
 K(i. 4!»2 ; but see <,'itiliT.itirfr v. Caiivii, 25 (Jr. Mill ; and lo C. L. J., '.15. 
 
 3H{S. A demurrer shall Htate specifically whether it is toPwmp'^ 
 the whole or to a part, and if to part only, to what part, of 
 the pleadiii}^ of tho opposite party. It shall state some " ' '' 
 ground in law for the demurrer, hut the party demurring ' '' 
 shall not, on the argument of the demurrer, he limited to 
 the ground so stated. A demurrer may he in the Form 
 No. 89 in the Appendix. If no ground, or only a frivolous 
 ground of demurrer is stated, the Court or a Judge may set 
 aside such demurrer, with costs. J. A. Rule 190. 
 
 Siiine UH Kiuf. R. 1875, (). 2«, r. 2. 
 
 Ill 1;||< 111^? r. , i-.L« 111, 111111 "r^ ,1111 till |>i<|'ii.iiii I'll '^*''J I'liiiiK 1^11 V'i> fbin 
 
 isputc, that even if everythmK alicKod iw proved then there iH no 
 rrer in idh- imd UHolexs." Cotton, L..!., ni the same reiK>rt HayH 
 
 This Kiilr authorises a donnu'ror to part of a ploiwlinf,', Imt the Courts 
 uminlly (lisiv/.ira^e the use of such a demurrer unless by that means a sub- 
 stantial (inestion may be decided. In Li'i/iiinn v. /.atimrr, '2(i\\'. R. lV)t) ; 37 
 L T. N. S. Hl!l ; 47 li. .1. Kx. 47<l. Mrett, L..I., saitl (as re|H)rted in the W. R. 
 ;t07) : "I'nder the new system, uule-s you are prepared to say that there am 
 III) facts in dispute, ' ' ' ' n . • > .i .■ 
 
 WW, a (h'inun 
 
 (|i. .'1()S) : '-On the demurrers I sliall add u'lthiiiK'' except to express my entire 
 coiKMirrt'iu'c in tiie opinion of my brotiier Ibett, that now denmrrers, unless the 
 wliolc <iiiestion as to uliether there is any ^'roinid of action arises on the state- 
 iiKiit of claim or on the defence to the entire atttion, do no pkkI. They only 
 raise a (|Mestii)n which could lie as well decio"d without a (lennirrer, and are 
 tlicrefore useless.'' 
 
 SetMilso .l/<7/V7«;/(7((/i /{//. Cii. V. /><.7//(.v, 25 \V R. S41. 
 
 Wiicre alternative relief was jM'ayed, a demurrer to one of the ulternatives 
 was helil not irre;^ular under tin? former Chancery Practice : Al/lmtt v. 
 dmmita Ctntrat Lailivaii Co., 24 (Jr. 57Jt, and sec Chy. (Jen. Order 54(>, now 
 I'ffete. 
 
 A dennu-rer to part nnist specify precisely the |ia'-t denuirred to. This 
 was also the fonnc^r practice under which it was held insufficient to file an 
 answtT to " such part of the bill as the defendant is advised he is VKnmd to 
 answer," and to denuir "aw to all the rest of the nmtters chargetl in the 
 liill": Ikrmuttcrv. Nenxnham, 2 Sch. it Lef. 1!M) ; and Martin v. Ktnntdu, 
 L>(Jr. HO. "' 
 
 A (It'iin-.rrer can rarely bo to a c'ngle paragraph of a plearling. The whole Demurrer 
 defence will in general be liK)ked at. vVhere one or more paragraphs are to a para- 
 demurred to, the Court may proiierly look at any other paragraph liearing onR^*P°,*'' * 
 the sanit; matter, and if when taken togethtT they ditclose a sufRcient defence Pleading. 
 
R *, 
 
 422 
 
 PLEADINGS. 
 
 Rnle 38B. the (U'liiurrcr imiKt Ih' ovcr-rnltKl : .\ttoriitii-<''>nt'r'i/ v. Atiil/tiinl, ',i Out. oil; 
 rtf«< iiIno Hiimiihr v. M<irx, lit (Jr. 17!l ; hikI Fhtrir v. Aorr// Jintiril, '> <'li. ]), 
 351 ; Niithiia v. lUitclirlor, W. N'. 1H7«. 17-'; lituxliii v. Hamilton, \Hhit. 112. 
 
 Til ir'/f.iKd V. Haii-khix, 24 \V. F{. W4, it was held that a party need not 
 (liHtriliiitc his facts mo iw to siiow whioli a"t' iiitciidcd to HupiMirt particular 
 |)ray<'rs for relief. Lord Coleridffe said : "S'l loiig' as a para^'raph siip|K)rts 
 some ojie or more of the claims in the prarer it is not <lemnrriil(le. Tim 
 )>laiiitifT is not Ixnind to assifrn such and sii ;h paragraplis to such and kiicIi 
 prayer. He states all the facts he deems Material, and then asi<s for such 
 and such relief; and if each of tin tacts M't oiit tends to show tiiat lie in 
 entitled to some nslit^f, and tiiat relief is jisked for by one of the prayers, the 
 
 i>araKraph setting out that fiwt must stand." In the opinion of Mr. .Justice 
 jindley, in the same case, if there was a prayer for general relief, and the 
 lileadin^ showed the p'iaintitf entitled to any i-elief, tlie statemejit was not 
 dennirrable. See also Yoiimj v. HuhrrtKon, 2()nt. 434, where it was held that 
 a demurrer did not lie, if, in any iiH|iect of the case, the plaintiff was entitliKl 
 to some relief. 
 
 On the ar),'innent of a denmr/er, any dociunent referreil to nnist betaken 
 to he truly stated, and cannot U* lisiked at to contradii't or alter the 
 avennents in the pleiuling, even thou^'ii there Ix- a reference- to tin; iiistni- 
 ment for K''*''vt''r certainty as to its contents: Luiiiihiiiil v. SIiiUik, 27 (ir. 
 .'W7. Statutes may Ix' lisiked at which are in part recited in the pleading : 
 Kkhi V. Kiilii, 3 Ont. Ap);. 43S, and the Court has jwsume(l that a rule 
 of a Building .Society existed, refeiring disputes lu'tween the .S(K;iety and h 
 memlK'r to arbitration jiursuant to ii Statute (Imp. Act, Idiieo. 4, c. .'5(1, 
 s. 27), thougli not appearing by the statement of claim : Jnhnxiin v. Al- 
 triiiciiiim. Pi r III. /iiiiiHl Soriitu, 4!l L. T. N. S. oCiH ; see also Hnrkli' v. Wilmn, 
 2C. P. 1). 410. 
 
 Uy the former pnvctici' in Chancery a demurrer for want of i'(|uity was in 
 )f very general terms, and was not r<'(|uired to state the p.irticular ground of 
 demurrer. \ plaintiff was tlierefore s<imetimes at a loss to know what the 
 point to Ih' argued on the dennu-rer was. The preferable Common Law 
 i)racti(!e h:m here Im-cu ailopted, an<l some ground in law for the demurrer must 
 be stated, though the party demurring may still, as fcmnerly, denuir ore Onii-i. 
 vn other grounds not so stiitetl : .see the present Jii'/i, :ind iJatrkin.i \-. Lord 
 PrnrkjiH, 4 Ap|). Cas. at |>. .5S. 
 
 A demurntr to "such part of the amen<led statement of claim as claimed 
 I'.auiages alleged to have been sustained by reason of the alleged wrongful 
 acts of the defendants in opening the ju,c(nints therein in that b.'half refen-cd 
 to," was held good in form, and to a substantial part of the claim: I'nirill 
 V. Jiiir.thi'ni, !l Ch. 1). 34; see //.«/./ v. Itinln/, W. N. 1H7H, S(l; 47 L. .1. 
 Chy. .^(•.7. 
 
 Where there wiis a demurn-r to a stat«'ment of claim "on the ground that 
 the facts therein alleged do 'lot show any eatisi' of action to which the Court 
 can give eft'ect as against the defendant, and on other grounds sulticient in law 
 to ^iustain the dennu'rer,'" it was Ik Id that though a general deitiurrei' for wiuit 
 of wpiity not alleging any s)M'<'itic trround luight not always be sutticietit, there 
 were cases in which it wonlil lie, .md that this was such a ciise, the (Kpiity 
 having to be gathered from a lonu' and i'omplicate<l series of facts set out in the 
 claim : Biihlrr v. McLuni, 2() Ch. I). 512. 
 
 A demurrer alleged that ''the statement of claim was liad in hnv " ; anil, 
 after other sfatements. eonchided \\h\\ the.se words, "and on other grounds 
 Hufticient in law to sustain this deuuirrer;" it was ludd that the last woitU 
 were suHiciejit t^i raise the defv'uce of the .Statute of Tiimitations : /hiirkiiLty. 
 Lord Pciirhjiii, 4 App. Cas. ol. If no ground or a frivolous groiuid was state<l, 
 a dennirrer might, under the Cinumon ii.\w Practice, have been struck out m 
 Chand«'rs : see Arch. Prac, Pith ed., p. !t2t'). However frivolous, it could not 
 lie treated as a nullity, even though no ground was stated : Liiouh y. <'(ihrii, 
 3 iJowl. 24,3. In an action for breiuh of an agreement to jiay deposit nionev, 
 the stattmient of claim, instead of asking for damages, asked for the (le|Kisit 
 
 Stating 
 
 grounds ( 
 emurrer 
 
DEMURRER. 
 
 423 
 
 tnoney as n debt. Arcliihald, J., at Ch.iiiilM>rH, would not xtrikc out the Rules 
 (iemiiirer as frivolous, hut gavt- the plaintiff Uiavc to amend : WilkK v. J'orkcr, 386-388. 
 W. N. lS7f), 74. 
 
 As to what is a frivolouH di'iiiuiTt'r : sec Jiric< v. Munrn, 10 F. K. 548; 
 foilowtfl in /!i">/. V. Ni»>k; 7 C L. T. 114. 'J'hc jurisdiction to set ikside iiH 
 frivolous should rarely Im- exercised where the jioiiit is a new one and is ai)|>ar- 
 eiitly niiswl in kimkI faith for the opinion of the Court ; S. ('. 552. See Brici' v. 
 Mi'iirii, 7 (>nt. 43.5, «here after aricuinent the demurrer was allowed. 
 
 HHil, A demurrer shall be deliverer! in the same manner Delivery ot 
 and within the same time as any other pleading in the '^^"'""^'" 
 action. J. A. Rule li)l. 
 
 i ,S,inie as the KnR. R. 1S75, ( ). •_>() r. 3. 
 
 .\s to the nuvnner of deliverinff pleading's : see Hiili-n 4(il and 307. For time 
 •of (Iflivery : s«'e Rnli>: 371, 372, 37!>, iWl. A defendant who hiw ohtaint-d an 
 (inler exteiidinff the time witiiin which to deliver his defence, may demur 
 within such extended time: Hmiiitxv. //oiIhik, 2 Ch. 1). 112; see Powrll v, 
 Jnnfliiitji, ',( C.'ii. I). 'M. A consent to an extension of time to deliver a defence 
 will ill like manner authorize the tiling of a demurrer : I'rivrtt v. Ptiimon, 
 4 f '. L. T. .'C>3. This was fonnerly not allowed ; an<l a denmrn'r filed under 
 unci) circumstances might have iM-eii taken off tiie tiles with costs : Jioi'lthcc v. 
 i'liiiuniii, 2 Ciiy. Ch. 41 ; I'lKimlnrlniii \. Mcl)iui<ihl, 2 Chy. Ch. 204; see 
 Att'irni ihdnii ml v. ('nn/ii i\ S I la. Kid. These cases, however, no longer apply: 
 J'flrill v. I'li'i-s',,!, 4 ('. \j. T. :W<. 
 
 St' Itiili .")40 an to setting down demurrers, and delivering dennirn-r Ik xiks. 
 
 IIH7. A defendant desiring to demur to part of a state- Demurrer 
 ment of claim, and to put in a defence to the other part, fmlcotobo 
 pliall combine such demurrer and defence in one pleading. '^'""'^'""''• 
 And so in every case where a party entitled to put in a 
 further {)leadnig desires to demur to part of the last plead- 
 ing of the opposite party, he shall combine such demurrer 
 and other pleading. J. A. llule 192. 
 
 Same as Kiig. 1{. l«7r). O. 20, r. 4. 
 
 A party may 1)V tin- sjinie pleading, join issue to some jiartof the previous 
 |il'-a(lings, and demur to others, and on the argument of the demurrer will U- 
 taken to admit cnlv tlie fiu'ts stated in the parts demuritHl to : W'litnoii v. 
 HiiHi.is. •.>4 \V. IL 'SH4 ; Itn,, v. Ilnnniriu;!, 27 W. I{. 217. 
 
 IJH.S. Either party may without leave plead and demur Piea ana 
 to the same pleading at the same time, by filing an alfi- toBume'"^ 
 davit by the party distinctly denying some one or more |^\^*'*'j"j« 
 material statement or statements in the pleading; orieavo. 
 stating that the several matters sought to be pleaded hy 
 way of confession and avoidance are respectively true in 
 substance and in fact ; and that he is further advised and 
 believes that the objections raised by such demurrer are 
 good and valid objections in law. The affidavit is to be 
 annexed to and iiled with the plea and demurrer, and a 
 copy of the afltidavit is to be served with the plea and 
 demurrer. .J. A. Rule 193. 
 
 cjC- 
 
 > 
 
 ^m 
 
 ^^< tf 
 
424 
 
 PLBADINaS. 
 
 Rules 
 389, 390. 
 
 fjoave to 
 demur anil 
 plead to 
 the saiiio 
 matter. 
 
 Pleading and doinurrinK to the name pleading: &t the Hauie time had nob 
 before tluH Kule In-en aUowe<l without leave : see R. S. O. 1877, c. 5(), », llH^ 
 and notoH to next Hiile. 
 
 S<H' Mi'tri>j)(ili/ini, etc., v. De/rifn, 25 W. R. 841, where it waMiH)inte(l out that- 
 by (leniurring alone tiie truth of the pleading in admitted, which may h<' > 
 Hourec of danger if liie demurrer is over-ruled. An infonnal demurrer, nucIi ,i 
 a clauHf Htiiting tl< .' the claim hIiowh no cau»e of ivotion, ix a trauNgreNMion (if 
 this /tiilr if filed witliout an affidavit : Vinuluneii v. Mitlcolm, 4 C. L. T. 211. 
 
 HHiK If the party demurring desires to be at liberty to 
 plead as well as to demur to the matter demurred to 
 [without filino such affidaviti, he may, before demurring, 
 apply to the Court or a Jud<i;e for an order giving him leave 
 to so plead and demur ; and the Court or Judge, if satisfied 
 that there is reasonable }](round for the demm'rer, may 
 make an order accordinj^ly, or may reserve leave to the 
 party to plead after the demurrer is over-ruled, [and may 
 direct which issue sliall l>e lirst dis[)Osed ofj ; or may make 
 such other order and upon such terms as may be just. J. 
 A. Kule 194; C. L. Rule May 21, 1H77. li. S. 0.1877, 
 c. 50, s. 118. 
 
 This HkIi (•iiutiiins sulMtivutially tlir fornii'i' Kiiglish pituitiw. 'Phi' corrps. 
 iH)n<linj,' Kuj^'lisli l{\ilc (1M7r>, (). 2S, r. .">), docs not eoutaiu the umds in 
 oriujkcts; it is iitht-rwise in effect the sainc. 
 
 ThtMiriginiil A'/'/c 1!I4 rf(|inri'(l also that the iittidavit in support of tlic iiintioii 
 hIiouIiI Ik' such as was reipiii-cd liy Keg. (leu. '.'Ist May, 1S77, namely, an alii- 
 davit distinctly denying soun' ono or inore material statement or statcnieMts in 
 the ph-ading (iennirred to: sec 41 I'. ('. <i. \\. ."ilM. 
 
 This made the Ritfr refpiire really the same affidavit a,s Rufr .SSH i-eiiuirc-., 
 and if it could Ite madi- tliere was no reason for an applicatiin for leave. Tin- 
 present J{>'/'' was tliefefore altered, so as to etialiie a partv to |)lead ami (leiiiur 
 i)y leave, where he call not make the affidavit mentioned in /^'/' IWS, 
 
 Leave was given by riindley, .1., to pleail and demur where t he ginuiui i)f 
 demurring was that tlie statement of ('laim disclo-ied no cause of action : Alum, 
 W. i\. IK7C., H7 ; 2(;harl. Ch. Ca. 4t). 
 
 Where defeiidints had (Munliined with tlieir d<feiices demuri-ers to the wlioii 
 claim, but the demurrers weic not filed soon enough to enable them to be arj,'iieil 
 Ix'fore the trial, tlit^Couit acted iind r the concluding ttlause of this /,'/(/( and 
 /{ii/i' (i.V), and gave leave to the pi lintiff to enter the a(^tion for trial, iiii'l 
 directed tlie denuirrers to lie argued at the trial : /iniik nf MmitiYn/ \. I'lmxins 
 ;< (j. h. T. 2l>.') ; see also /{iilc ')'}'>. 
 
 Where a ((uestion of law has Iweii decided on a demurrer on .a prejiiniiiarv 
 objei'tion ami an appeal is brougiit, thi' Court will not in geni-ral stay the trial 
 of issues of faci pending tlie appeal : /Ir ./. //. /'uliiiir, 22 Oh. I). HS. 
 
 After a deiiinri'ir had been overruled, the bill was amended and the ilefni- 
 dant answered, not stating in his answer the objei^tioii which had lieeii laiseil 
 on the demurrer. It was held that the d»>fendant might at the he;iriMg renew 
 the objection without pleading: Jnhiiiisniin v. ftoiilinti, 2 Ch. I). 2!IS. 
 
 AmondinK. itOO. The party whoso pleadinfj; is demiu'red to may, at 
 any time within four days from delivery of the demurrer 
 or before the demurrer is set down, on payment of '$i> to 
 
fWfU 
 
 CLOSE OF PLEADINGS. 
 
 im 
 
 f^' e 
 
 the party demurring, obtain an order on praecipe to amend 3,^^ 
 the pleading or that portion of it which is demurred to. 
 New. 
 
 Thi8 /?"/?- in ivlopted from tlm former practice in Cliancery : see Bahlwin v. 
 Bomt, 1 Cliy. Ch. 82, wliich und(>r the Jiid. Act, jirior to tlie jirenent Jtiilc, waH 
 hclH not to !)•• in force : Privrtl v. Pearson, 4 C. L. T. .35.3. 
 
 OriK. H"''' 1'-"> provided that no aineiidinent of a pleaclinsfdeimirred towhould 
 he iniMi"' )Hii(linff the demurrer except by order. It is premimed that now no 
 iiiiifei. 'iiciit can Ix' made except under tluH Jtiif<: A prwehtc order in nKpiired 
 tu cnHiire the payment of tiie .%■) co.strt Ix-fon* amendiuff. 'I he oi-der will not \n' 
 issuwl except on proof payment of the .^5 : this may Ix^ done by i)r(Kluotion of 
 a receipt for it, or by iiffid.-ivit. 
 
 .VmendmentH are iniule under l:iih' 424 without any order. 
 
 ;I9I. Wliere a demurrer is overruled, the Court may i''»»;'in«* 
 •ake such order, and upon such terms as to the Court shall miun-r i« 
 seem right, for allowinrr tlio demurring party to raise by °^''"'"''''*" 
 pleading any case he may \n\ desirous to set up in opposi- 
 tion to the matter demurred to. .T. A. Hulo 201. 
 
 Same as Kur. M. IH?.-.. (). 2H, r. 12. 
 
 After (Icinurrer overruled, if the defendant desires further to defend, he 
 inii>t lu^ik Iciivi- to ilo so. Leave will be >;iven almost as df eoiu'seuiion jiavment 
 iif costs and e\|H'(litin)^ proceed i uKs : Hill v. Wilkiiixmi, 2('> W. I{, 27o ; VV^. N. 
 1H7H, '.\, and after demurrer allowed, leave to amend will l)e Kenerally jfiven 
 imli'ss tile ease is one which cannot Iw iM'ttenil i)y any aiiiendmcnt, in which 
 case le:i\e will lye refused : l)ini'hiiis \. I.uril I'rnilniii^ 4. .\pi>. (!as. fi2 ; Tiilfr 
 V. IMI.-lU.k V. Hit; Sfiiiicr v. //((//, L'H Sol. .rour. 14(t. V, ij,.,.,. adeumrrer is 
 (pvemiled, the same objection may \»- raised at the hearing without iM-ing' 
 pleaded: ./o/,„„.v.sv,„ v. /ii,iih<,t<; 2 f"li. 1). 2ilH. 
 
 4. Closk of Pid:.\niNos. 
 
 Ji!>2. As soon as either party has joined issue upon any ^viien 
 pleading of the opposite party ;'i!uply, without adding any oIuhwI. ""^ 
 further or otluT pleadings thereto, [or as soon as the time 
 for amending tlie ])leadings under these lliilea or under 
 any onhu- made in the action or for delivering a reply or 
 8ulise(|i]ent pleading or demurrer, has expired,' the ))lead- 
 ings as i)(>tweeu such parties shall he deemed to he closed 
 without any joinder of issue heing pleaded hy any or 
 eitlur party r. J. A. Ilule 17(5. 
 
 The danses in bracki^ts are not in Kup. H. is;.'), (). 2."> (18H3 K. 2H((), and 
 0, 2!i, r. 12, which is in other respec;ts the same. 
 
 Under this /{I'lr, in nii motion in which there is no counter-claim, the plead- 
 mgf are elided when the plaintiff has ilelivered a joinder of issue with the 
 •lefence, or three weeks have elapsed from tli<' delivery of the defence ; 
 Sthnriihrv. /'nirlir, !( |', |{. 11. 
 
 In WtU V. AVrr, 14 L. 1? li'. 2!»4, it was helil tliat w'len the plemlin^'H were 
 closed by e\|iirv of tinii' v.nder this Kiilt, in'itlier party could reopen them 
 vvitliont the lea\e.)f the Court. 
 
 Hvtlie delivery by tlii' plaintiff of a simple joinder of issue upon the statement 
 I'f defence and c<Huiter-claim, the pleadiuKs areoloKed, awl notice of trial may bt? 
 
 <n^-r^ 
 
426 
 
 Rule 393. k 
 
 "^' 
 
 Note may 
 Ik* fliitored 
 •.•r rlofniilt. 
 
 1 ,.■ *' 
 
 PLEADINGS. 
 
 Kivcii ; I/inr v. Ciiii'tlior/ii, 11 P. K. 35.S. Tlif-y arc aNo cloHcd l>y the oxjiira- 
 tinn of tliriM' wcfkN witliout joiiidtT : l.iirkinijliiny. liinif, 7C. L. T. I". 
 
 If tlif pitiiiititf (li'livcrH a i-t'plv, not Immii^ merely it joinder of issue, It (Imin 
 not Kccin to liiivc iM'cn ynt drcided wlidtliiT the reply i-Ioscn the pIciuliiipH, ur 
 wlictlmr tlii-y iirc not closed initil u joindorof isKiie lias Iwen deliviTcd, or four 
 •lays liavc claiiHcd from tlic delivery of reply : nee liulf 'MX The |Kiiiit iimy 1h' 
 left in Home (loul)t where leave is re<inire(l to deliver a fiirtlier pleiuiiii); : m^c 
 Itiili-Wi The opinion that a reply, not iM'in^ a joinder, diM-s not elose thfiilfail 
 in^'H niay |)erhaps he inferred from W'cl/fr v. /'rmfoi; 10 P. 1{. .TiS, tliongii 
 was not nenessary there to decide the |«iint ; bnt where a reply has \MvVt niailc 
 to a counter-claim the defendai'c may, of ri^ht anuiid his coiiiiter-claiin 
 under /</'/<• 4i"), and the pleadinffs are not close<l till the time for w> 
 amending has expired. This was de< ided in i'nlmir v. ilililix (Mr. l)ikltoii, 
 22nd Oct., ISSl), where a statement of claim wjis delivered on 4tli Oct., 
 <lefence and counter-claim on 11th Oct., reply to counter cliiini and juiiider of 
 issue to defence on 14th Oct., and a notice of trial on 14th Oct., was held to lie 
 premature ; and aK'ain in tinniir v. 7'"//(, 12 P. 1{. 2WI. 
 
 Where a tiiird party has U-en inad<' a <lefendant to acoiniter-claini,tli<-iu;tioii 
 is not at issue till the counter-claim has Iwen stnick out, or thi' tliiiil jiartv liii» 
 plea<led, <ir become in default ; i'liiniiliiiii Sirnritirs <!ii. v. I'mitiss, 2C L. T. !Kl. 
 
 Wiicre a plaintiff issued a writ aKainst several defendants, Itut only scrvMl 
 one, and proceede<l against him to the cl,)se of the plemlin^'s, it was lieM that 
 tie must Im' assumed to have al.andoiu-d as to the others, and thi^ ple:uliii|rrt in 
 the iu!tion were closed, and notice of trial could he rej^ularly (.riven: Vdvilnnrn 
 V. JiihiDiiiii, 'A f'. L. T. oO.'), 
 
 He*' also notes to Jlnlfx (!47, (».">4. 
 
 A count«M' claim must In- a defence, and therefori' a joinder of issue on the 
 defeime, not mentioning' the counter-claim, closes the pleiidin^fs, and notice of 
 trial tiiereafter is therefore regular : Maviira v. Snmi; 12 V. K. (11(1. 
 
 Il9li. Whert! fiiiy party makes default in delivering a 
 statement of defence, demurrer, or Hul)se(]uent pleading, 
 witliin the time limited therefor, in caseH where interlocu- 
 tory or final judgment cannot be Hipned, the opposite party 
 may, at any time before the pleading is filed, uj)()n proof 
 of the default, by prtfciju' to the otlicer with whom the 
 pleadings are filed, require him to note that the pleadings 
 in the action arc closed as to the party in defa.ilt ; and 
 thereupon the officer shall enter such note in the pleadings 
 book accordingly, and thereafter no pleading by the party 
 in default shall he rec(!ived or filed without the older of a 
 
 There is no similar I'lniflish Uule. 
 similar to that under the foiiuer CI 
 to note a liill //n> rim/i-Kso, aK.'iinst 
 
 the plaintitf was at lilM'rty to lirinj^ the cause to a hearing without any further 
 notice to such defendant. The pres"nt Rnhx, however, make no pniviHion for 
 carrying on pioceedin^fs r.i' /k./'// against defen<lants in default, as to wliolii a 
 note has iH'cn entered under this llith . 
 
 In Lh-n'l V. »■.(;•// (JM-fore (J.dt, ('.J.. 25 (Jet., 1K«»). Satunlay U'ing the 
 last dav to deliver a defence, the phiintilV ca (sed a note uiiiler this /^c/r to !»■ 
 
 Judge. J. A. Rule 
 
 The practice lierehy prescrilM^l is sniiiewliiit 
 laneery «J. O. I(l4, which enaliled a phiiiititt 
 a defendant not answering, in winch caw 
 
 <'ntere(l at2.2."> p.m., conceiving that no deienci 
 that day, none having heen seived hy 
 
 dd I 
 
 le va 
 hut it was 
 
 lidh 
 
 In ere) 
 
 i on 
 
 held that iiiith'r 
 Uiilr ;«ik tiling was |iart of the deliviry, and the (h'fendant had uinlcr /'«/' 
 7, tip to ;! (."cl.M'k to tile t!i( defence, « hether it had Innni delivered or not. 
 .S<H.' not»'s to Riilr^ 371, an<l ;jK(l-:w:i. 
 
 those U8C( 
 Common 
 flhall cont 
 
 Siuiif iw Ki 
 For the def 
 The former 
 forth the lega 
 Jii'liriitiiri .!( 
 legal result 
 t<iit great ext 
 Chancery pie 
 3!l!t), will ill K 
 
 »1>5. 1 
 
 or partly i 
 copies of fl 
 to any pa 
 but incluH 
 made, in t 
 
 See Kng. It 
 This Itiilf 
 except that li 
 tiirui'es ilisteac 
 
 »!MS. I 
 
 required c 
 may have 
 purposes c 
 in lieu of 
 folio of th 
 bursemenl 
 Rule 180. 
 
 This is the 
 UHH3, U. :'(»,-)) 
 
 :i»7. 1 
 
 between p; 
 date of til 
 to the Div 
 the action 
 and place 
 tho party 
 party filii 
 J. A. iJnh 
 
 Suhstantial 
 tbt iiiider th 
 tiling is iieci 
 
Pf.RADINOS OF.NKUALLY. 
 
 427 
 
 thai 
 
 5. Pleading Gknerally. ?,litn- 
 
 31>4. The following Rules of pleading substituted for^wniioH 
 tiiose used ia the Court of Chancery and in the Courts of ' ' 
 Common Law, prior to The Ontario Judicature Act, 1881, 
 tihall contimie to be used. J. A. Rule 125, 
 
 Sam.' iiH Kill,'. R. 1875, (). 1!», r. 1, (1H83, R. Iil7). 
 
 For till' (If'tiiiitiiiii <>f " ]il('inlin>^ " we mcc. 2 of the Act. 
 
 Tilt' fi)riniir syHtcin <<f iiIciidiiiK lit Coiiimou Law rciiuiri'd the imrticH to HCt 
 forth tiic It'K'.'il i'«'Hiilt of the fiicts, imd not tin- fi«;ts tlicmsclviw. ITnddr '/Vie 
 Jti'lirntiiri' .\e> tlit* fii:;t.s imiHt be stated, and tlu- Conrt dcuidtM what is the 
 legal ri'siilt : lliinuu r v. Fli(/lit, '.Vt L. T. N. H. 127. Tin' new system is thus 
 t«a (,'rt'ut cxti'iit similar to that of the Conrt of Chancery; anil tlit^ forms of 
 Chancery plciwlinH's, except in some points noticed hereafter, (notes to Ituir 
 3!l!l), will in Ki'Heral serve as K'lides ; lloi/i v. Motrin, 2 <^. B. 1). (WO. 
 
 ;J05. Every pleading may be either printed or written, ^<n»i!.M"f 
 or partly priute(| and partly written, but no more than four ' ^ , ^y 
 
 copies of any pleading or other document are to be allowed 
 to any party in a cause or matter, exclusive of the draft, 
 but inclusive of all oth«r copies that may be required or 
 made, in the progress of the cause. J. A. Rule 129. 
 
 Sie Kug. If. 1H;r., (). lit, r. .5, (1S.S3, R. 20.5). 
 
 Thirt I'lili contains the same provisions as Chy. (Jen. Orders (Mi and -10.3, 
 except that hy (Jen. Ord. (l(i dates and sums were required to lie expressed in 
 tiirures instead of words, where the pleiulinfi^ was wholly printed. 
 
 JiOO. If nioie than three copies e.vclusive of the draft are •''■;"^!"«, 
 required of any^pleading or other document, the party ^' ^"^ "'^*' 
 may have the pleading or other document printed for the 
 purposes of the cause or matter, and in that case he shall 
 in lieu of all charges for copies be allowed thirty cents per 
 folio of the pleading or document, and his reasonable dis- 
 bursements of procuring the same to be printed., J. A. 
 Rule ISO. 
 
 ThiH is III.' same as the Chy. flan. Ord. 404. The Kii«. R. lS7r>, (). Ht, r. o. 
 Wm, H. 20.-)), is not similar.' 
 
 !ltt7. Every pleading in an action shall be delivered . how pkaa- 
 between parties, and shall be marked on the face with the im^ie!i 
 date of the day on which it is filed, and with the refer(!nce n.arkea.'" 
 to the ])ivision to which the action is assigned, the title of 
 the action, the description of the pleading, and the name 
 and place of business of the solicitor and agent (if any) of 
 th(^ party filing the same, cr the name and address of the 
 party filing the sanin if he does not act bv a solicitor. 
 J. A. Puilo 13?. 
 
 ^'iilwtaiitiully the same as the Knff. R. IH'a, (). ]!», r. 7, (1HK3, R. 207), except 
 mux under the latter, pleiutingn iire to he delivered only, and nefwl not In- filed. 
 tiliiiK is iieces!.!vrv in Out. under «»/<■ ;«W. 
 
! 
 
 
 
 
 
 ' 
 
 428 
 
 PLBADIN08. 
 
 3M*m *'**• Delivering a statement of claim or defence or 
 
 uei'ivery otber pleaiUog includes filing. J. A. liule 150. 
 
 HI?'"''*"* '''"' ^''"Kl'nh i)ractice do«iH not retiuire pleaclingB to be filwl. 
 
 ""• See Lloiid v. Ward, in nc.tf to Rule 3i>3. 
 
 Korin of 
 pleadliigH. 
 
 I'llOtS tl) 1)0 
 
 Ktatod. 
 
 Stun. Pleadings shall contain a concise statement of the 
 material facts upon which the party pleading relies, but not 
 the evidence by which they are to be proved; dates, sums 
 and numbers shall be expressed in figures ; the sij^nature 
 of counsel shall not be necessary ; forms similar to those 
 in Part VI. of the Appendix rany be used. J. A. Kiile 128, 
 part. 
 
 This is to the siuiie effect m the Kng. R. 1K75, (). lit, r. J, (sec 1S,S;{, |{. 200). 
 
 'J'lif Kiij,'. RulcK iif 1HK;{, H. 2IMI, |)r(ivi(leH for tlie Hi^iiiii(r of |)lcii(hiiKH, and 
 thiit a |ilc:i(liiij' "shall i'oiitaiii,ainl ooiitain only, a .stateiiieiit in a suininary fonn 
 of the inatcrial facts, etc. "' 'I'lie |ilcii<linj;« in I'lnffland since tliis Hiile art- now 
 like a special indorsement on a writ which indeed alwayis serves as a stat'-niHit 
 of claim ; see t ). ii(», r. 1. The Knuflish |ileadin((s and decisions therecui, and ii> 
 to particulars can not now !«• safe ^rnides in (Jnturio. 
 
 The new system of pleading reipiires not the le^fal result of the f.icts, hut tin- 
 facts thi'niselves, to lie stated : see note to Uiilf WM. \ statement of dain' 
 thei'efore which merely alli'>,'ed that a k'oo<1 mid valifl iliiiuitin ii.'iiis mcot liai! 
 Im'cu made to the plaintiff, without statiuK tlie facts which cnMstitiite it, wa- 
 held to lie denunralile ; /{/• I'urton, ToiniKinit v. PnrtDii. :V^ \\ . II. I'MT; i"' 
 L.T.N. S. 7')'}, In an action of liliel it was held tliat the clefendaiit nnistwt 
 out all the facts which he relies upon as showinic justitication or privilctri- 
 /ii/t V. LmnK, .■)! Jj. .1. (^. M. 35! I ; and in a simdar action, e\ ideiice (jf tin 
 idaintiff's general had idiaractei' was hel<l not admissihle unless rcteucd tn in 
 th(^ statement of defence : .SVvi^^ \. ,SV(//(/i((ii, H (^. 15. I). 4111. 
 
 .\ idea of purchaser for valui' without notice may he ridied on at the hearing.', 
 thou^fii not expressly ))leade<l, if it he a just inference on the fai -i admitted ( ii 
 the pleading's. <':'sul>se(|Uentlv hy agreement of the iiarties : ThiiIdv v. liUtrUiic! . 
 •M \V. |{. 17o. 
 
 The pleadings in diiwer are ),'overned liy the same rules as tlmse in (itliit 
 
 actioiis. The riifht df dnwer is a lejjal conclusion frinn (M'rtaiii fiicts, ami 
 those facts should Ih' stated in the pleading : Luinhr v. <'iirrii i\ 10 ]'. K. 111-. 
 
 Tn an action of '^iHud 'r it is not suticient to allege inat the defendant falwlv 
 and malieiiiuslv s|Mike and jiuldished the defamatory words cuniplaimHl (it. 
 The time ;iMd place, and the persons to whom, or in whose presence, they wen 
 siK)kcn must be stated with i-casnualdc certainty: Thnrntdii v. ' 'K/ix^ni, 1'.' 
 d 1. .1. 2.54. 
 
 A pliiintiff who claimed to lie entitled to a ritflit of way over a mad, and an 
 injunction a^iiinst the olistruction of the roaxl, was rc(piired to state in iii- 
 ideadiuK, the way and the route and lin'itati<ins of the road over wliicli In 
 claimed the ri^fht. .\ t^eiieral statement that there was a road ii\cr ;i o t.iii 
 farm connectinj,'- two other farms, and that the plaintiff and his ti iianl> «ii' 
 entitled to a ri^'ht of way /ver it, was held to he emluo rassini; : llnrrh \. 
 Jinkiiix,2-lV:... 1). 4H1 : .see also >/«.///(/(.-/ v. AVrr/w^nVt-, ;iS Ch. 1). 410, So.i 
 )daintitf (daimiiig' an easement m\ist set out the facts un which lie relics ii' 
 eutitliiiK him, hv jfrant, prescri])tion or othewise, h'uvirill \, Hdiii/hh. iL'li. K 
 U. 14. 
 
 Where the pleadings allcf^ed " thivt the compajiy has otherwise ackuowlcdifcii 
 the ii)S(dv<'ncy," it was lield that as a matter of pleiulinK the nianiicr ct 
 iicknow'ledgnieiit should have Ihmmi stated : «/• lirilinh Cunmliitii Lmin A 
 InvtMiaiiU ('u., 4 C L. 'l\ 248. 
 
PLBAD1N08 GENERALLY. 
 
 429 
 
 In ft foiciilitsure action wIhth tlu' luortgaj-'wi applitis fur jiifl(»itiont, (in di'fuult Rule 399. 
 iif arilH'ivrimci', not only for forccloHuni hut ivIho for a |>erMonal order for pay- 
 ment, tin- HtatfUiMit of claim oii^ht. liowt-vnr Hhortly, to contain an cxpruHH 
 KtiitctHit'Mt of tln' covenant upon wliicli tlie urdi-r is clainit-d : Iaiw v. I'liillii/, 5() 
 L. T. N. S. ZV) ; .V) W. K. 401. 
 
 Till' " iiiutfvial factH " arc not confined to facts which nniHt Ik- proved in order What are 
 ti) cstiililiHli the cause of action ; any facts which may affect the daniagex, and ''material 
 wliieli the jihiintitf i.s entitled to prove at the trial, are properly pleadal>le in a ''•■otB. 
 KUti'ini'iit of claim : MiiliiujUm v. Loriinj, (> C^. li. 1). 1!M»; Lmiili v. Hmnmont, 
 AW \,. T. .\. S. 772 ; (I'loKso/t v. S/n'inllir, '21) Sol. .Jour. .Wli ; ho factH in mitigation 
 cif liiinmges iu an action for malicious arrest: I'nrxhii v. Jlrmirt/, II 1*. K. (i4. 
 Till' KiiK- Uulesof IMHH (11. 237), provide that nodefence as to danuiKes shall 1m' 
 iieecsjiivry ; and, therefore, such a defence is not allowed to In- pleiuTe<l : WihhI 
 V. K»rl of luii'hiim, 37 W. H. 222. There is no similar provision in Ontario. 
 
 In an action for malicious ]irosecntion, a part of the statement of claiiu, set- 
 tint; nut the oliservations of the tlndge, l)efore whom the |ilaintitf was tried on 
 ii criminal charge, was struck out, hut a part, stating damage from ])uhlication 
 of micli charge, was allowed to stand : AJoiroir v. C/ifi/iir, 12 l». R. 487. 
 
 Though each iiaragraph should as nearly as oossihle contain a seiMirate 
 allugatioii, it net^d not contain a separate cause of action or defence : t'nion, 
 lie. V. Li/iiiKii, 4(J U. C. C^. li. 4.53. The facts nnist 1h' stat(fd concisely, without 
 any rlii'toric : /icr Mellisli, L.J., in Wat.mn v. Jtudwcl/, 45 L. J. Chy. 744; 3 
 Ch. IX 3M); hut if a pleading sUvtes only material fivcts, it will not be 
 (itrnck out merely Ixtcanse the facts are stated at too great a lengfth : Ni'KJ) v. 
 Miirris, L' <i. i>. I>. (>30 ; uidess the pleading is so prolix as to embarrass: 
 Ihicii v. (liinrd, 7 Ch. 1). at i>. 4«S ; Mtirxli \. I'lmlefract, etc., W. N. 1H7(», 7. 
 Prolixity may consiHt in (1) neoe.ssary fivcts Inking stated at undue length ; or Prolixity. 
 (2) statcnientH of unnecessary facts : per l^aggallay, L..I., in Davy v. (Jarrett, 
 .38 L. T. N. S. 77. It is impro|>er to state argument, or inferences and con- 
 clusioiiK (if law: iMni v. (inrrctt, minra; j)er Mellish, L.J., in WiUxnn v. 
 Mlir,'ll,.sii/,m : Huiimer v. Ftiy/it, a5 L. T. N. S. 127 ; H7//iV(ww"h v. A. <C- .V. 
 It'. Rif. V(i., 12 Ch. I). 7H7 ; or matters of law that might Ix' raised by de- 
 murrer : .S'AMv'.v v. (/rant, -i C. P. I). 2.5; or "charges" such as were sometimes 
 intriKluccd in Kpiity t)k'adingH and were merely Htat(^tments of the i)lea<ler'8 
 view (if the e(|uitv ; naltioii v. Rndwcll, xiijira ; or evidence, c.;/., facts showing 
 that a (lerson is tne heir-at-law of a deceivsed |)«rsou : Kvdi/n v. Kreli/n, W. N. 
 1880, (>2; see also BUkc v. Albion Life /iis. Co., a5 L. T. N. S. 2()!t : 46 
 L..T.C. P. (i()3 ; ./(' w v. Ti'i-nrr, W. N. 1H7.5, 23!) : W'i/linm.snit v. L. ,(• iV. '', 
 
 A-ikrw V. i\r. A'. By. Admissions 
 
 Rij. Vak, xiiprii; or evidenctun the Hha|>e of admissions . „^. 
 
 ''o., W. N. 187.5, 23H. Docinner.ts relied im as admissions are notiiing but *''.°l*'*°*'^ 
 evidence : Dnrji v. (inrrctt, 7 Ch. D. 473. eviaence. 
 
 The Court has a discretion to strike out statements which are djien to any 
 (if tiiese objections: Rule 423. There are many cases in which facts and 
 evidence are so mixed up as to l>e almost indistinguishable : /ler Archibald, .!., 
 in Umilh v. West, W. N. 1H7«, 5.5 ; 2 Charl. Ch. Ca. 41. 
 
 The plaintifT in an acti(m to recover land, must set out all the material facts 
 upon which his title is founded : see note to Rule 41C. 
 
 The plaintiff need not state under what particular form of action he is pro- 
 fli'fHling ; nor in what legal relation he claims to stand to the defendant : 
 mr»imUl(vi Ry. (Jo. v. Defrles, 36 L. T. N. .S. 1.50, 4'J4 ; Hatimer v. FUght, 
 !MW. R. 34(1. 
 
 What is jnaterial, is a statement of the facts and of the relief claimed ; and 
 the facts need not be distributed so as to show which c)f them 8Up|K)rt each 
 claim to relief. Ho long as they show that the plaintiff is entitled to any one 
 Kind of relief claimed, or, where there is a claim for general relief, to any relief 
 at all, th(( jiaragraph containing them will not be demurrable : Watson v. 
 Aaii'kins, 24 W. R. 884. 
 
 Wliere the old forms of Common Law i)leadings will serve as models, they Former 
 are not necessarily abolished. Where a defendant has received a sum of money Common 
 for the plaintitf, it was considered that the statoment of that fact was all that Lawl-orma 
 
 
430 
 
 PLEADINGS. 
 
 Rule 399. could )h> required ; and an application for tlu; ainHudincnt of the Mtutcnient of 
 claim l»y netting forth tlm oircunistanccH under which tin; money wum receivwi 
 wan di«niiHHwl : Bar/Mt v. ffoch,', W. N. 187(t, 54. 
 
 DefenccM, however, of "never indelited " and "set off,'' in the old fonnit have 
 Immmi Htruck out an violating the imwent Riilf : Ihti-ix v. Veo, Mr. Daltoii, 11 
 .Vpril, 1HK2. See dqtli-y v. .lurks,,,,, W. N. 18H4, 3!>. 
 
 The pU'iiding of the "wnnnion counts" is not adniiHHible : .*7/<v.('/c v. /V/ric/' 
 20 C. L. J. 2H4. 
 
 The nlea of "not guilty" without utatutory authority to plead it Ih not 
 adniixNihle : l'r/i'rlM>i;i,i,/li v. Mii/liiiiil /',/. <!„. 12 1'. \i. 127. 
 
 Ah t(» " «((/i fx/ /<j,/,im." pleaded after the .Tud. Act in an action Ijcpiu 
 before; Ne» note to Tf"/'' 413. 
 
 It has l)een held l»y some .Fudgex in Knglaml that the old gen.-ral aiiegatioii 
 of the iH-rfoniiance of ttonditions i)recedent is impro]N'r, not iK-ing an allegatiun 
 of facts : H.-e 72 L. T. .lour. 343. 
 
 Qiufir, wh<!ther hy|H>theti(!al defences can Ik? pleiwUnl : S,iii/I, v. Fii,;; 14 
 Out. 72i». 
 
 Particulars Particulars of Pleading^. — The practice in Ontario as to ordering pnrticulan 
 
 of (ilead- <le|)endHU|M(n the inhen'nt jurisdiction of the Cotirt to lire vent injustice; noKultis 
 
 iiiBs, wluMi .similar to those in force in England having Ix-en lulopted : Qitrni Vidttrin J'„d; 
 
 ordered. ,,(,._ y. Il„w,ird, 13 P K. 14. Th(^ deftMidant is entitled to have the plaintifs 
 
 ciise presented in an intelligible form : llurlnu'd v. Mimk, 3H L. T. N. S. 411 ; ami 
 
 if tlie charges are not sufficiently <'xiilieit, particulars may Im' oiilenil : see .l//"/i, 
 
 VV. N. 1875, 202,220; or an amendment of the claim may Ik- applied fur: 
 
 S,l„„i,hm;j v. X,„-Mli, W. N. lH7<i, im; ; 2.Charl. Oh. Ca. »>.' 
 
 r I K„hMil.s,h v. Mr.liiti/iY, 1!K;. L. .1. IKJ; 3 C. L. T. 173; it was held by 
 Mr. Dalton, in Chambers, that, in a i^ase whew fonnerly a party would have 
 lieen entitled to luirticulars of a pleiwling, the |>ro|ier course will m general h' 
 to move t<> oomiiel an amt^ndnient of the ph^ading so as to state the particulam 
 rt^piired. In that case the defenct; was that a not*- sue<i on hiul been ohtaiiMl 
 by fraud. The defence was onlei-ed to W amemUnl so us to stat<' the circum- 
 stances of the fraud : see Walliiti/fint/ v. Mutiiul S,,,-., 5 Aw. <'as. <ltC». Par- 
 ticulars have sometimes In^en oitlered : se«' Bustun v. lUuilshin^ S L. K. \v.%\; 
 .\iijileiiiaii v. Aftplciiiiii,, 12 P. R.138. A like owler would seem to, In- proiK-r 
 where justification is jdefwled in general terms in an action of liVx-l : see f'urcmin 
 v. Koltlj, 8 P. R. 4!t ; or an action for wrongful dismissal : se«^ .Ski,,,,/,',;^ v. ./iiiiet, 
 7 Ch. 1>. 4.^5, 448. 
 
 Thei-e may, b.owever, Ih> cases in which a general allegation may l)e ullowwl 
 in the iileading to avoid iirolixity, leaving the opjHwit*' iMirty to apply fiiri)artie- 
 ulars it necessary : see 7 lie lt,i,;j, 7 P. D. 120, when- a statement of chviiu, claim- 
 ing damages for delivery of cargo in a damaged (Mrtidition, alleged ti)at tlii' 
 damage was (Kiciisiontnl by the defective condition of the vesstd or by the negli- 
 gence or lireiufli of duty of the defendants : see also Apf^emfii, v. Applmum, VI 
 P. K. i:«. 
 
 Parti(!ulars will lie onlerwl giving infonnation to pi-event the ojMsisitp mrty 
 from iM'ing taken by surprise at the trial : Simltliitij \. FH2/miI,;it, .W Ch. D- 
 410 ; but not sucl. as will oblige a party to di.sclose the evidence u|Hm which in' 
 relies: Queen \'i,ii>ri<i /'iirk (',i)iiiiiixs,',iiii;:i v. ili,iiyiri/. 13 P. H. 14. 
 
 In suits for alimony, tli* fonne.r Chancery jiractice reqiiired that the varwius 
 acts of violence or iulultery relied on, should In- m-t forth s|H'citically in the bii , 
 that the <lefendant might have notice of them, othe^^/i.s<• no evidiiiif of «»' ;" 
 acts could iHJi/iven: lt,'tlmin \ Rmlii„iii, 20 (ir. 4£8, 440, 441. This injii 
 !U5Cordance with the new Rules of pleading : nee Br,Hik v. Jlii^'k. 35 W. K. 351 ; 
 •V L. T. N. S. 425 ; in R,isensl,i,lt v. R„K,„.-i/,i,il, !l P. R. 31., an order wiisinwli' 
 for deliver.y of particulars of acts relied on, within oni- montii, and confininjfthc 
 plaintiff's evidence to such suits ; and though in that case it wa-' cniiKinere"' 
 convenient to order particulars the decision shews clearl.y enongli that the 
 plaintiff's statement of claim was not properly framed to enabli' iur to go into 
 evidence. 
 
 .'MiiiKiny 
 
 (■uses. 
 
PARTICULARS OF PLEADINGS. 
 
 431 
 
 A''''!'"/'/''''.-' I>«f*''><l<^i>t'* plt'ttdiii^r tliat ci-rtain IhikIh wci-c Onlnuiict- LhikIh Rule 399. 
 were nut (irdcrwl to givn imrticuliirH of fmrtM aiitl iiiciuih liy wliieli, iiiid the tiiiu' KxRinpleH. 
 lit wliicli, tilt' ItiiulH MO iM-cuiiH' < Inliiiuicc LiukIh, it not ii|i|M>iiriiiK tliut thv 
 (lefHuluiitH liitd any H|M!ciul iiifuim of infoniiution not o|M-n to tlio |ilaintitfH : 
 (hii'fii Virloriii I'ark HiimviiiiHiiinrfH v, lliwm'il, 13 1*. R. 14. 
 
 l)i'fi'ii(liiiitH clahninK' a roa<l to Im' a liijfliway hy (l«-<lication were onlcrcd, if 
 tlicy rt'li»'<l im any H|M'C!ifio actH of (lf«lication or (lc<-laratioiiH of intention to 
 (Iwliciitc, wlifther alon»' or jointly with visit, to jfivi- tlic nature and datoH of tlic 
 nets or dfclurations and tlio names of the |i»-rMons hy whom thc-y wen- done or 
 iiiimIc: S/iii/iliii!/ v. Fil-.iMliiiL, ;W(!li. 1). 410. 
 
 I'lirtiouIitrM liave alxo IxM'n onU'ifd :- of paymentH which the defendantH, who 
 wen' niortifUKee.s in a re(h>m|ition tuition admitt«-4l liaving received, and in re- 
 HiK'Ct to which tliey coiinter-chiim««<l : AV/wy* v. (Iiilillifru, 'M\ Ch. I). 5*15; of 
 iii>){liK<'nce and damafi^eH in an luition for ihunsiKes for iiijm'ies caused liy negli- 
 IfMit driving : O'Menni v. .SV-mc, W. N. 18S4, 72: 28 Sol. .Fonr. ;i">!l ; of general 
 iilli'gationM of trust, and I )reiuiheH thereof ; Kr Jns/iir, Aiinliif v. IlilMl, 'X\ 
 W. K. !V)7 ; T)-' L. T. N. S. 572 ; of errors in iirogress certificates, though these 
 wiTf tilt' result of infonnation derivetl from dinrunients |)re|iare<l for the litiga- 
 tion which were privileged: <'. I'. R. v. ('miiiiiT, \\ V. K. 21)7 ; of items alleginl 
 to ix! false entries and of the nature of oljjection to each : .Vrw/inii v. Pai/iitrr 
 IH Cli. I). HH ; of false and fraudulent misrepresentations : Sfliijmon v. Viiiiii;/, 
 W. N. 1«H4, !t3 ; 2« Hoi. Jour. 411 ; in a lilwl suit, of matter material to the 
 ilttfumltuit's ciise mnm ^he isssue on a |ilea of justification, tliough involving dis- 
 cliMiin! (if names of |)ersons iiitende<l to Im- ealleil !>}' the plaintiff as witnesses : 
 Mimwll y. ('li(imK,r/iti,i, 17 <^ M. I). l.')4 ; .:14 \V. K. 7K1 ; .54 L. T. N. H. 714: 
 in an tuition for infringement of a trade mark, of "divers ]iersons " alleged to 
 havelH-eiuleceivwl : lliiiiiphrii's v. Tiii/Znr, '.V.t fJli. I). (iiW ; of itijinsof a claim in 
 rcsiicct of which the defendant pays money into Court, hut only if the trial 
 will Ih" facilitated and neither party enduirransed : Orii'iif Sli'iim X(ti\ Vo. v. 
 ilmiii Miirini: Ins, Cii. 'M VV. R. 442. Thisciu«? was decidinl under Jtitle 203, 
 iif Kng. Rules of 1KH3, providing exiiressly for a demand of ]iartionlars and 
 onlw therefor, if not given on demand, which is the practice pursues! in Ontario 
 without s|M>cial /tnie ; see Tariff of wmts, it«'m (i!t. 
 
 In ail suction for g(Kids Hold and delivere<l, a counter-claim for damagt^s for 
 inferior iiuality was set tip. Particulars of the damages claimed were ordered : 
 Awm, \V. N. 1S7.5, 220 : «t* also noten to Rnhs 245 and 370. 
 
 In an action for false imprisonment an a lunatic, reasonable and probable False ' 
 cause as a defence was held, and immaterial allegations and |iarticulain of it prison- 
 were refused ; Ciiir v. Ton;; .54 L. T. N. S. «7, 515. """'*■ 
 
 In an action of seduction defendant was held not entitle<l to jtarticulars of Seduction, 
 times and itlaces, unless he made affidavit denying the se<luction so as to shew 
 that he diii not know the nature of the charges brought against him, which 
 iitherwiw would Iw deenxKl to In- matters within his own knowh'dge : T/nmip- 
 «'H v. liidh'!/, 'M W. R. 2.'}0 ; 47 L. T. X. S. 7<H). 
 
 In some cases the particulars may Ix' ohtaineil by examination for discover 
 
 sw S,tiiiii/i'i:i V. Jiiiun, 7 Oh. I). 4;i5, explaiuefl in Hrnhiiw v. 
 1»7 : Frmt v. lirookr, 32 L. '\\ N. S. 312 ; ///// v. UVr/,-.-, L. R. 
 
 /><-»•, l(i Ch. 
 C. !• . (WW. 
 
 7,: 
 
 Wlicrc liy cxauiination for discctvery the defendant liiul obtained the inforT^ 
 mation wliich would \n'. given by particiilai-s, |M»rtieulars were refused: 7 
 ilmtd V. neiitlic, 11 L». R. 3211. / 
 
 Iiidctenriiuiiigwhat particulars may Ik- demanded, the decisions under the 
 I'-jiKiisli practice of delivering interrogatories may \^n' usefully referred to. 
 lliesc shew that a )iarty cannot Ik; comis'lle<l to disclose the details of his 
 I'videncc as i ipiitra-disting-iished from the facts : Knile v. Jarohi^, 3 Kx. D. ?,'Xt ; 
 •■xi'iaiii.'(iiii.w/,/..f,V/i. v. i.itskill, 3<; W. R. 558; liiildtr v. /MV/vj*, 21» Ch. I). 
 -11; l',i;il,nt„ V. /,(„/', IC, (,'!•. J). ((3; K, /.fii/li, Hoiirliffi v. /.r/V///, Ch. 1). 2.5(i : 
 Numrd V. Li.rd A-.;i.v,A«/, , 5 ('. P. D. 47; 42 L. T. N. S. 172; ('ii)iimi.s.sii„irr.s 
 "J Sfuyis V. )ilii.w, L. R. 15 Kq. .S02 ; or matters which do not pertain to the 
 [lucstionsto U: raised at the trial, though thev may be relevant if a judgment 
 w obtained: /•ur/.er v. HV//.v. IH Ch. D. 477; but the material facts u)k.ii 
 
 I'articuhirs ( 
 obtained l 
 by exiuiii- I 
 iiution. 
 
482 
 
 Rule 393. 
 
 Wl'oiiKflll 
 
 (liHIIliNNIll. 
 
 liiliOl. 
 
 PlltOllt 
 CaHOH. 
 
 PLEADINGS. 
 
 wliicli the Immucm ill till' (.'iWM' will Im- niiMcd inuxt U'diMcloHcd ; Ashliii v. Tuiihir 
 .'W li.'V. N. H. 44, Hiicli iix, ill nil lictioii for (liNNolutioii of » |iiirtii<'i'Mlii|) id th^ 
 pmctict* of HiirfiffoiiM, <N!cuHioiiH when tluMlcfciKliiiit coiidiicttMl liiiiiHi'll' in xuclin 
 wiiy HH to iiiiikc it iiii|N)HHiliic for the pliiiiititf tu |iriiuti(:c witli linn : Liiwi \. 
 Tnvililfll, i;i(-'li. I). 'Alh; uiid, in an uctioii for wron^ffnl diHiniNMul, iimtinio.., 
 of niiHuondtict r(tU<*(l onto jiiHtify tlit* diHiniHHHl; SunniUrx v. ./I'/n.v, 7 (jii h 
 436. 
 
 In III) iiction of xliuKlcr, jturticularri niuy Im< ordfrcd of tin- |H-rNonM towhinn 
 the HliinilciiiiiH wordN wen- HiHikt-n, or if sncli imtwohs were nnkiinwn, or tlu' 
 wordu wi'iT N|Kiki-n to tlu- plitiiitilf, tln<n tlin niiiiit' of any |H'rs(in wlio wiis 
 jinwiit and liifurd, or ini^lit liav*- licard the wohIh H|Mik('ii : 'i/mriiltm \. Cuji- 
 v/"./, !ir. U. ra't -, which, it ha^ Imcii held in h'niit,/ v. liatlli,; 11 I'. i{. Hi), ,, 
 in Ontario, to Ih* followed in prefcrt'iicc to thi> contrary vicwH c.xpi'trm'd in 
 limilhnrji v. Cimjifr, 12 t^. B. I). '.(4, and yi<w''//i' v. liiiihuiinii, ItJ (^. is. 1>. (ii")ti; 
 Imt Hcn McMillan v. dilwill, 7 CJ. L. T. 141 ; hut it Iiuh Im-vu licid t'Vrii in 
 Kngluiid tliat tlioHo dccisioiiH art- not to Im- extended to occuHions of piiliiiw' 
 tion of all alleged liln-l : (loitraiul v. Fit:{iirald, 'A~ \W . 11.55; hut purticiijiiw 
 as to naineH of iM'rHons alleged to have iHien paHsing hy vheii thi^ NiaiHlt'ruun 
 wordM weri! u«ed, and iMvrtieulai'H as to the alleged dainageH have Ix'eii refiniwl: 
 Winijurtl v. Cox, W. iN. lH7t». KMi ; 2 Cliarl. (Jli. Ca. :i»\ Bee aim) tW.mid/ 
 liMurnncv Cor/toratioii v. J'roniirr, W. ^. IM'li, 55 ; 2 (Jharl. Ch. Ca. 35: 
 nexiM V. SlewurU, VV. N. 1875, 231 ; 1 Cliarl. Cli. Ca. H7. 
 
 The genc'ral law applicuhle to discovery goveruH actions for infrin^'enient of 
 patents. Kiill disclosure of the lines of attiick must lie nimie, Ixit no .tiicli 
 indivi(luali/.in)jr of the ihtmoiis who an^ alleged to Ix; prior li.sers as would 
 enable the plaintilf to hx u[H)n the defendant's witnesses : •Siiii//i v. lim(/,i 
 C. L. T. rm ; 21 C. L. .1. .W: see 11 1'. K. lti!». 
 
 In Mostttei/ V. Victiiria KhIiIht Co., 55 L. T. N. S. 482, particulars of hreaclus of 
 two patents were delivered. The defendant auHwered the |)laintitf's iiiterm- 
 guturies, whereu|KJU he discontinued as to one |iat«nt. The defeiidiuitii then 
 nK|uired the plaintiff to distinguish between the breaches couiplaiiUMi of, rnfer 
 ring him to their answers and interrogatories and interrogating him iw t<j 
 which of the processes they described infringed the iiatent relied on liy liiin. 
 Tt was held that the plaintiff was not oliliged to particulari/.e the hreuchfn: 
 see niirk v. Mather, 31 W. R. 3«2; 22 Ch. D. «2y ; see Anijlo-Ainerkm 
 liriinh Co. V. Crompton, 34 Ch. D. 152 ; 35 Ch. D. 283 ; under Imp. Act 40 4 
 47 Vict. c. 57, 8. 2«.» 
 
 Particulars were orderetl of resiiects in which the defendants denied that 
 the iilaintitfs' jmtent was for any new invention, etc., (as allegi^l) and (lat« 
 and occasions when, and also names uf jiersons by whom, prior user was hod : 
 Smith V. Orecy, 11 P. R. IGt) ; see also lloUidaif v. I/ejtpennfall, 41 Ch. L). 1(W; 
 Union Ji/ectrical, etc. Co. v. Electrical Utoratje Co., '^ Ch. D. 325; linyd \. 
 Farrar, 57 L. T. N. S. 8(H>. 
 
 Particulars of objections to a patent must lie given : see Cropper v. Smith, 
 51 L. T. N. a. 729 ; see form of order in Jihrlich v. Jhlee, 5« L. T. N. H. 819. 
 
 An application by the defendant to amend his particulars of objectiDns to* 
 liat^int on the ground that landing the trial the defendant had discoveriKl new 
 facts shewing want of novelty, was refused, it not being shown that he could 
 not with reasonable diligence have discovered the new facts sooner : Muss 1. 
 Malinys, 33 Ch. D. G03. 
 
 All defects in the siiecificatioi.-* of a patent on which the defendant intends to 
 rely at the trial must be specified in the particulars of objection : AiiijU>- 
 American liritsh Liyht Co. v. Crompton, 34 Ch. D. 152 ; a5 Ch. D. 283. 
 
 In an action for libel in a newspaper publication, which the defence niiid wiw 
 an accurate rejwrt of certain public jn'oceedings and fair cuniiiient thereon, 
 particulars by interrogation were denied as to the names of jiersoiin on whose 
 infonnation the »• ^|)ort was biised : Hen ites.ii/ v. Wriijht (No, 2), 3^>VV^ K. 87.t; 
 and where the aolion is against the proprietor of a newspajier who iidinits the 
 |)ublication of the libel, and pleotls an ajiology, the plaintilf is not entitled to 
 
PARTICULARS OP PliEADINOS. 
 
 488 
 
 intern )Kat<' tlw (Icfcndiint lut to the name of tho writer, unlesH the identity of Rule 400. 
 the writer is a fiict material to Home iMHiie raiwd in the uawe : t/ilmoii v. Kdxcnrth, 
 IIU/ H. I>. MM. 
 
 Particulars were onlenul of a defenoe of j\iHtitie»tion in a liln'l Nuit, where it 
 wiiH not clear whether tlie (h>fence was that what was char^'ed a^aiuHt phiintitf 
 wiiK true, or wan truly re|M>rted : Hi-nnriini/ v. Wrii.iht (No. ll, //(. 87^* ; W L. .1. 
 t^, 15. r>!l-l. Ill MHIk v. ('(trimin, 17 t)iit. 223, a defeiiilant not plemlinx jUHtiK- 
 catiiiii, liut saying? that the alle^ecl lilM'l wiu* a fair coinnient on niattei-M of 
 piihlic iiiterext, wa.s held entitled to hIiow that the matterx commented ni»un 
 were true. 
 
 The prai'tiee ill the Prol>at(t Divixion in Kn^'land ix not to ordt^r particiilarH 
 iif undue iiiHueiice char^fed : Ijurtl Stifinltiiril v. Nnfirut, !) P. 1). 'J',\; or of 
 :»ile({ati(iiis of a teHtator's unHoumlneHH of mind: HunkiuHon v. Jinrninnham, 
 X\ L J. I'n>. Iti. 
 
 I'articMilars having liceii ordered of false entries alle(^ed by the Htatenient of 
 cliiiiii to li:ive lic'ii iiiaile hy the defendant in the iMxiks, it was held not siifiicient 
 tdset out a list of items complained of, hut that the plaintiff must HtateHliortly 
 aNtiMNioli item the nature of the olijeotion made to it: Nrw/Htrt, dr., Co. v. 
 /'.(.(/H/rr, :M('1i. I). HH. 
 
 All order strikiii!,' out particulars eomplained of as too ffeneral was refused, 
 it iM'iiiu' held that if ton general the a<liiiissioii of evidence thereunder was in 
 tile discretion of the .liidf^e at the trial: (Utizmn Innurance \. ('ampbill, 10 
 I'. R. IIKI. 
 
 When 
 
 ir.ler was made for particuhirs of certain para^fraphs of defence. 
 
 itiiil ill default the iiara'/raphs to lie struck out, it was held that the officer 
 witii wli'iiii the pleaiiiii^s were tiled (Miiild strike out the paraKraphs without 
 hirtlier order upon ilefaiilt lieiiif^ shown by affidavit: Jfninilton Hoik/ Co. v. 
 AY-(«, lor. I{. .-)H1. 
 
 .\ (lefemlaiit does not waive his rijflit to particulars by deliveriiiif a defence: 
 Snehu V, Siiiilnutii, 37 Oh. 1). 2!(.'). 
 
 When the deffiidaiit has the means of knowing' the facts in dispute, and the 
 jiliiiiitifr has not, the deft'iidant is not entitled to particulars till after li<^ has 
 (fiveii dlscovcrv : Mitltrw ffur/irr, 'M V,h. I). 110; S(ifltn v. Spri/iiuin, mtpra ; 
 Whiitf v. .ihrniK, 2(i Oh. I). 717 ; Lritrh v. Al.h,lt, M Oh. I). 374. 
 
 Signature of Counsel The |u-ovision that si>,'iiatiire of counsel is not to 
 be iiei'fssiiiv, diK's not mean that it is improper and ouv,'ht to 1k' struck out : 
 Hiriwril V.' irinrifk; \V. N. IS?), 134. In /fiickitt v. Jowx, \V. N. 1K7(), 17; 
 i!3 li.T. S. S. 777, eoiiiist'l's signature was said to be desirable ; and in case of 
 Hix'tition liv trustees for advice, necessary : Jie Bonllonx TriinU, W. N. 1882, 
 lil!; :tO \V. |{. .->'.((! ; ol L. .1. Chy. 4!t3. 
 
 400. Each party is to admit such of the material alle- ^,'^^|™j"o 
 Rations contained in the statement of claim or defence of mentsof 
 the oppoHite party as are true ; or he may give notice, by "1'p°"*" • 
 his own statement or otherwise, that he admits for the pur- 
 poses of the action the truth of the case generally, or of any 
 part of the case, stated or referred to in the statement of 
 claim or defence of the opposite or any other party. J. A. 
 Rule 240. 
 
 This Rule corresponds in principle with tht! former practice in Chancery. 
 llieKn;,'. R. lH7r., (). 32, r. 1 (18H.{, R. 371), is iM-rmissive only, and authorizes, 
 but (i(H!s not I'ciiuiiv (as this Kit/.e does) a party to the ivction to give notice, by 
 niH mvn statement or otherwise, that he admits the truth of the whole or part 
 "f ins adversary "s statement. 
 
 J. A. 
 
 28 
 
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 Photographic 
 
 Sciences 
 
 Corporation 
 
 23 WIST MAIN STREET 
 
 WEBSTER, N.Y. 14580 
 
 (716) 872-4S03 
 

434 
 
 Rules 
 401, 402. 
 
 • PLEADINGS. '-■ ' 
 
 In Lee v. Button,!'! C\\. D. 383, Miilins, V.C., siiitl that a (Icft^iiflant oiijflit 
 not to df-ny the phiin and ackiiowlwlged facts, whicli it isiieitlier to lii.s iutcrent 
 nor ill his power to disprove. 
 
 As to the construction of admissions not made by reft!renci^ to iiara^'raplK 
 of the oppi^ite |)arty's pleadinj^ : see Dovcii v. Irwin, 4 Out. 8 ; see also noti's 
 to Rii/e Toti. 
 
 Wliere allegations in the plaintiff's claim were admitted he was not alJDWfl 
 to go into evidence : The Hardwick, !( P. D. 32. 
 
 As to costs where proper admi"iions are not made : see Rule llt<!i. 
 
 *r?S" 
 
 fzi 
 
 Mani^ 
 
 Marine f 
 
 401. Admissions are, in all cases where it is practicable, 
 • f><^ by reference to the numbers of the paragraphs in the 
 . -HfUng to which they relate, with such qualifications as 
 vrix,y be necessary or proper for protecting the interests of 
 the party making such admissions : thus — " the defendanT 
 admits the allegations made in the first, second and ihiiil 
 paragraphs of the plaintiff's claim." J. A. Rule 140. 
 
 Not in the Englisli Riil(*s. See notes to Rule 403. 
 
 See Rule 400, which rccpiires each partj' to admit .such of tlie inaterial alle- 
 gations C(mtaine(1 in the pleading of the o])posite party as are true. 
 
 What facts 403. Each party in any pleading must allege all such 
 pleaded, facts uot appearing in the previous pleading (if any), as lu- 
 means to rely on, and must raise all such grounds of 
 defence or reply, as the' case may be, as if not so raised on 
 the pleadings would be likely to take the oppposite pfirty by 
 surprise, or would raise new issues of fact not arising out 
 of the pleadings, as (for instance) fraud, or that any claim 
 has been barred by a Statute of Limitations, or has been 
 released. J. A. 147. 
 
 Same as the Kn^. R. 1875, O. li), r. 18. The Con. Rule of 1SS3, R. 211, is 
 more full and si)eciti(!. 
 
 In lijird V. Nuaii, 5 Cli. I). 781, where a stji*- nient of defence deuieil the 
 making of an agreement alleged, and proceeded to say that the pci-smi liy 
 whom it was alleged to have been made was of unsound mind, it was held tli:it 
 .' the only issue was the misoundness of mind of the alleged contractor, In 
 Col'ette V. Gonde, 7 Ch. I). 842, the defendant alledg"d that a song wiis nut duly 
 registered by reason of the time of registration n'>u lunng entered ; hi' was not 
 allowed to prove that the registration was voiil by reason of the n.inn' uf tlie 
 jiublishers not i Mng truly stated. Roth the above cases depended to a (,'ri';it 
 extent \ipon the English Rides as to admissions, which have not Ix'eii adepti'd 
 in the Ontario Act : see note to Rule 403. 
 
 Want of notice of action must be pleivded : Vcrratt v. McA ulaii, 5 ( )nt. 313 ; 
 McKay v. OummimiK, (> Ont. 4(K). 
 
 As to pleading statutes relied on other tiian the Statute of Limitations, sec 
 83 L. T. Jour. y3 ; Colntru v. Collhin, 35 Cii. I). 373 (registration necessary uiuler 
 Bill of Sales Act) ; Hayward v. Lely. 50 L. T. N. S. 418 (registration mider the 
 Copyright Act) ; from which it would apj)ear to be well to mtfution any statute 
 relied on in the pleading, in order to prevent the imputation of an attempt to 
 surprise. The pleadings in the above cases were hbld insufficient, but ainen'l- 
 raents were allowed : see also McKay v. Cummini/K, Ont. 4(X). 
 
 40». 
 
 8i'e KiiH 
 
 Tllis Hll/r 
 
 mn" : (J. (). 
 ing tiiat eacl: 
 
 <if tile Dppiisi 
 "Siive iis 
 wurd.s iii-f til, 
 party to elai 
 « |)iii-tnersh 
 in point of I 
 
 Where a ni 
 file opiposite 
 Wie : \V,(/i',- 
 C. L. T. 152 
 
 Wheiv a 
 »ns\v(.r to al 
 •■"Imitting ee 
 Kichurdnuh V 
 
ADMISSIONS. 
 
 435 
 
 As to tlu' averment of pcrforinance of conditions precedent, see note to Rule 403. 
 
 As to tlie mode in wliicli frand must be pleaded, set^ note to Ruir 407. 
 
 Wlicve tli(^ Statute of Limitations l)ar.s tlie remedy only, it must he pleaded, 
 ,ui(l cannot lie taken advantag-e of liy demurrer ; U'uki'/if v. Jjaris, 2.') W. R. 
 (id, iKitwitlistandinf; the remarks in JVai/cK v. Crtiwlvji, 10 Cli. ]J. 31, which was 
 (Ic'oided l)cfore the appeal in /Miw/iiii.t v. Lon/ I'mrki/ii, 4 Api). Cas. 51 ; see 
 ivlsii J!t /■'"'■'/'', <iill(icil V. LtnrirniKin, 57 L. T. N. S. 304. But when^ the 
 Statute takes away the title, as in an action for recovi'ry of land, it is clear that 
 the (li'tVnce may he raised hv demurrei- : IhivLiitx \. Luril I'ciiilinii, (i (.',\\. J). 
 ;il.S; 4 Aiip. C'as. ,51, 5S, 04; Willif v. luirl ll<im; .50 L. ,1. Chy. 4. In 
 hiiidiiix V. Lmil Pi'iii'/ii/ii, Lord Cairns said : " The anidof,'y of the Statute of 
 Frauds i>. not an aiialoffy of any wei^'ht. Tlie Statute? tif l''rauds nnist be 
 pliadt'd, liceanse it never c'an hi' predicated hefurehand that a defendant who 
 may sjielter himself under tlie Statut(t of {''rauds, desires to do so. He may, if 
 il lie a <|iiestion of an agreement, co)ifess the a^'reemeiit, and then the Statute 
 (if Frauds will lie inapplicahle. With rejfard also to the Statute of Limitations, 
 xs t(i pc'iMiiial actions, the cause of action may remain, even althotigh six years 
 have passed. It cannot hf predicated that the fleft^ndant will appeal to the 
 Stiitutc of liimitations for his protection. Many people, or some peojile at all 
 events, del not do so, therefore you must wait to hear from the defendant 
 wlifllier 111 desires to avail hims( If of the defence of the Statute of Limitations 
 iir iiol. I'liit with regard to real property it is a (piestion of title. The i<laijititf 
 has t(i stare his title, the title upon which he means to rely ; and the Statute 
 of hiiuitalioMs with regard to real property says, that wlum the time has 
 I'Xpircd within which an entry or claim must he made to real projierty, the title 
 shall lie CAtinguished and pass away from him who might have liiul it, to the 
 
 le CAtingUls 
 jicrsoM wliii otherwise has the title hy possession, or in whatever other way he 
 may iiave it " : 4 App. Cas. 5S-5il. 
 See also notes to Jli'lc 413. 
 
 4015. Save as otherwise provided, the silence of a plead- suenceof 
 ing as to any allegations contained in the [iievious pleading admfssiou? 
 of the opposite party is not to be construed into an implied 
 admission of the truth of such allegation ; and any allega- 
 tion introduced for the purpose of preventing such implied 
 admission, and not for the purpose of making intelligible 
 tlio groiuuls of defence, is to be considered impertinent. 
 J. A. Rule 148. 
 
 See Kiig. I{. 1S75, (). I'.l, r. 21 {1S83, K. 20!>), which is different. 
 
 This Riilr intriKluces the p'actice of the Court of Chancery as to iwlniis- 
 sious : (1. (). P23 ; se(? also Riilr 400. It was a principle of Common Law plead- 
 ing that each ]iarty was to he taken to admit those allegations in the pleadingn 
 (if the opposite jiarty which he did not dt^ny. 
 
 "Save as ahove otherwi.sc provided," the exceptions referred to in these 
 wiird.s are those which re(|uire thi! pleading to H|)ecifically deny the right of the 
 jiarty to claim in a representative capacity ; or the alleged constitution of 
 a partnership firm : Hii/i 411 ; or the h^gality of a contract ; or its sutHciency 
 ilipiiiutof law ; Rulr 413. 
 
 Where a material fact therefore is alleged in a pleading, and the pleading of 
 tlie (ipposite |iarty is silent in respect thereto, the fiUit nuist be considered in 
 iifstie : ll'((/('//()() Mitti'iU, etc. v. Rohinsiin, 4 (Jnt. 2!(5 ; tieahnnik v. I'onnii, 7 
 C. L. T. 152. 
 
 Where a iileading, however, does not maintain silence, but contains an 
 Miswer til allegations in opposite? pleadings which has no sense if not read as 
 iuiniitting certain statements, those statements nuist be taken as admitted: 
 lUclhUilsui, v. Jiiikiim, 10 r. 1{. 2il2. 
 
r^w^^"""" 
 
 ¥ I 
 
 486 
 
 PLEADINOS. 
 
 *r> 
 
 m 
 
 Rule 404. The EngltHh Rules uiulep the Judiciiture Acts, in repfiird to iuhnisfiidus, diffti 
 from the above: see Orch-r 1!>, Rules 17, 20, 22, the effect of whieli is tlmt, so 
 fiiras regards statements of claim and defence and co\uiter-claim, and us ri^jjunls 
 parties who ui'e not infants or lunatics, tlie want of as|)eci(ic denial of a fact will 
 operate as an adrussion, and will entitle the party whose pleadint; is tliiis 
 admitted to move for judguient under A'c/c 7.")() ; anfl thus upon a tccimical 
 construction of pleading, final judgment may he signefl : see '/'/iin/n v. Ilahls. 
 irorfli, H Ch. 1). i't'.Vi, and Jiiit/cr v. Titi/i'iiI, V> ('|i. I). "o.S ; and the uiciitf 
 might sometimes not he reached : m'I' Ti/i/i:s/ \ //(r/'/)'/, 7 C'ii. 1). KW; rcvi rsid 
 however in appeal, 10 Cli. 1). Hi);}; Liun'<(lti! v Winter, i^. if. I'. I). (),")() • i'liruli 
 V. ///-•< W. N. 1S8H, llo ; Thnni/'iii v. Clnnvh, 10 L. H. Ir. :{7« : WiUhimmn 
 V. Litmlwi, He, 27 W. K. 724 ; K/hol v. llarriK, 17 L. R. Ir. .T)!. 
 
 The rul<^ of tlie Court of Chancery a(loi>te(l in the |)resent Hnlc lias iidt lictn 
 fouwl ill practict^ to render the arriving at an issue a <lifhcult tliinj,', or tn 
 imduly increase evidence. 
 
 By /{"/'■ 400 (which is founded u[)on Chancery ( !. < ). 124) each party is to 
 admit such allegations in the jjleadings of tht^ opposite part\- as arc true ; and 
 if he does not do so, Riilf 118!) gives to the CoiU't or Judge power to iiiakc a 
 proper order with respect to any extra costs occasioned hy the fiiilurt- 'o 
 a^lmit. 
 
 Belief 
 clauned to 
 be stated 
 specifi- 
 caliy. 
 
 401* Every statement of claim shall state specltically 
 the relief which the plaintiff claims, either simply or in the 
 alternative, and may also ask for general relief. And the 
 same rule shall apply to any counter-claim made, or relief 
 claimed hy the defendant, in his statement of defence. If 
 the plaintiff's claim he for discovery only, the statement of 
 claim shall shew it. J. A. Hule 133. 
 
 Sanie as tli<' Kng. R. 187^-, (). lit, r. 8. The Hule of ISS;^, I!. 2:10, is liiffcnnt, 
 providing that general or other relief need not he prayed for and may always 
 1)(^ given. 
 
 A claimant is not entitled to any relief unless it is s])ecifically prayed for, er 
 can be given un<lera prayer for general relief ; and if general relief isiiotaskid 
 for, it will be considered that the partv does iKJt want it: Hiilluinni v. )'"//, 
 25 \V. \\. (\-27 ;''<''■; /i7/ v. A'"('v /, l(i Ch. I). 508. Where general relief is 
 claimed, a pleading will not be demurrable, if the facts stated in it sIkhv that 
 the i)laintitt' is entitled to any relief : Walsim v. Hairkins, 24 W. I!. 8S4, unless 
 the relief be foreign to the ,scoi)e of tlie claim : (linnjhdn v. Sluii-jf, (J Out. .\p|i. 
 417; ^Ihhii v. Trust A' Luini t'o., 2 Out. .'5!tl>. It is siifticient to set out in tlw 
 statement of claim fa<;ts which entitle to relief and pray for any relief that tin' 
 facts warrant: /'Ik'/jih v. White, 7 L. i{. Ir. 1(10. Under a prayer for general 
 relief the Court will grant the apj)ropriate relic^f which the facts warrant, 
 although unable to grant the stx^cific relief claimed : Slulfr v. Tlif ('iimulii 
 Cniiml Rji Co., 23 (Jr. 3(». 
 
 Facts, arising after action Imniglit, entitling the plaintiff to further relief, in 
 roHjHfct of the subject matter of t\w litigation, beyond what they were entitled 
 to at its commencement, have been allowed to Ix! set up by amendment ; l''""*'- 
 Kkirc Wnijon Co. v. ComienU Mhierah (Jo., 73 L. T. Jour. 120. 
 
 In an action for an injunction unrler the usual prayer for ginieral relief 
 damages are included under sec. 5.^ (it) of the Jud. Act (Lord Cairn's Act) : 
 Serrao v. Xiiel, 16 tj. B. 1). 549. 
 
 Aa to the efficiency of a i)rayer for general relief, sqe Conk v. Marif/n, 2 Atk. 
 3, and the observations thereon in Byrne v. Frere, 2 Moll. 16(}. 
 
 It does not follow l)ecau8e a plaintiff has asked for reformation of a dotii- 
 ment that a defendant is entitled to claim the same relief though he has not 
 
RULES OF PLEADING. 
 
 437 
 
 askfd fi>r it ; Wal/r v. lliii/lics, ] ()nt. 322, IH C. L. J. 177. See as to asking Rules 
 twd iiKM)ii.'<istent kinds of relief, A'mH.v v. /)aris, 27 W. R. 285, referred to 400-407. 
 ill note to Jinlc 423, and lin-sldHcr v. Bitrwick, 24 W. R. !)(t2. 
 
 405. Where the i)Iaintiff seeks relief in respect of several Distinct 
 
 , . *■ ,. 1 • . !• 11 claims or 
 
 distinct claims or causes oi complaint iounded upon separ- defoncos. 
 ate and distinct facts, they shall be stated, as far as may 
 be, separately and distinctly. And the same rule shall 
 apply where che defendant relies upon several distinct 
 grounds of defence, or counter-claim founded upon separate 
 and distinct facts. J. A. Rule 134. 
 
 Sam.' as the Kjig. R. 1875, (). 1<», r. !t, (1HS3, R. 231). 
 
 Uiili X 301 and 340, enable the plaintiff to unite in tiit^ .same statement of claim 
 si'veiul causes of action. 'I'hi' present /''f/c recjiiires such a statement of 'ilaini 
 til kei')) tiie facts supporting one, cau.se of atition, as far as may he, together, and 
 ilistinet from the facts sujjporting another cause of action. It is not necessary, 
 liowcver, to distribute the various facts so as to .show which are intended to 
 support any particular jirayer for relief ; [Vatsnii v. Il<tv)kiii.s, 24 W. R. 884. 
 'riie siinie rule a|ipli«'s to a counter-claim. 
 
 404>. Where the contents of any document are material, Kffectof 
 it shall be sufficient in any pleadijig to state the effect 5naybe^° 
 thereof as briefly as possible, without setting out the whole ''*"'**^' 
 or any part thereof unless the precise words of the docu- 
 ment or any part thereof are material, J. A. llule 135. 
 
 Same as t'u- Eng. R. 1875, O 1!», r. 24, (188.3, R. 217). 
 
 Till- does not dispense witli tiie necessity for setting forth the precise defania- 
 t'vy words in an action of libel or slander: Harris v. 11 Vow, 4 C. P. D. 125; 
 ij,. l/din/li V. T/i<: Qiieeu, 3 C^. B. }). (»07 ; see also Don/ v. (farreit, 7 Ch. D. 
 473. 
 
 Where rex jinllmid in an Irish Court was alleged, a lu'ief statement of the 
 Irish judgment was held sufficient : llnHdoini v. <V//.'/", 29 Ch. D. 448. 
 
 407. Where it is material to allege malice, fraudulent Allegation 
 intention, knowledge or other condition of the mind of any etc'""'''"^' 
 person, it shall be sufficient to allege the same as a fact, 
 without setting out the circumstances from which the same 
 is to be inferred. .1. A. Rule Ibfi. 
 
 Same as th.. Kng. R. 1875, (). 1(1, r. 25, (1883, R. 218). 
 
 Fraud siiould l)e distinctly cl.arged as fraud : hnrif v. <Jarrett, 7 Ch. 1>. at Fraud. 
 \>. 48!( ; and if " fraadulently," or words of similar im[K)rt are omitted, there 
 iiUHt be alU^gations of fact which necessarily and prr .ie amount to fraud : 
 Bi/nir V. Afiizin, 8 L. R. Jr. 3!K), and see Rule 402 ; and the facts constituting 
 
 A gen'.'ral allegation of fraud, however strong the words used, where there 
 18 no Htatenient of the circumstances relied on as constituting the alleged 
 fraud is insufficient even to amount to an averment of fraud, of which any 
 •Court ought to take notice : Wnllinijford v. Miitunf ,Siiriefi/, 5 Ann. Cas. 685, 
 ■W)7, 701. .'-11 
 
if 
 
 488 PLEADINGS. 
 
 Bules Fraudulent coiicealiiKiiit iif fraud, wliicli within <filili v. O'lil/il, !l i). \\. ]),;-,(( 
 
 408,409. maybe relied on as ground of erjuitahle relief ajfainst tlie niiiiiini>: cf the. 
 
 Statute of LitnitationH, being a qutjstion of fact, must be averred assucli in tliit. 
 
 pleadingH : Ihirher v. //nustdii, 14 L. K. Ir. 273. 
 
 In Hcrrixii v. Binchofffichcim, W. N. 1H7<>, 77, the statement of cluim 
 alleged t\w. purchase of bonds through fraudultMit misrepresentations in the 
 |)rospectus of the c(>ini)aiiv, and, on a motion to 'strike out parts of tiie state- 
 ment of claim as j)rolix, it was held suftieient to allege generally that tlie |)rn- 
 spectus which was set out was fraudulinit to tiie knowledge of the dcfcndimU 
 without siHwifyuig the particulars, and without goinj^ into <'itiicr the uiotivi' 
 which led to the issue of the i)rosi)ectus, or the particulars of tiie fnuKJulcni 
 HcheTue of wliich tlie i)ros|)eutus formed a part. 
 
 As to obtaining mon* specific allegations of or particulars of friiiid churirwl : 
 see not(! to Itiilr 'M). See h'a/ti'iihmli v. Lriris, 30 W. II. 351; ; t,-) J.. 'I'. X. S. 
 ()()(!, for allegations which were considered to amoimt to a charge of fnuid. 
 
 Malice. It will be sufficient under this ltu/(\ in an action for malicious pniscfnfioii, 
 
 to allege that the proceedings were taken witiiout reasonable or priiliHlilcuiusc, 
 without setting forth the circumstances from which the same would be infiTmi : 
 Ji/rrix V. Thrijl,'!!, VV. N. 187(1, oli ; 2 Oliarl. Ch. Ca. 4.^. 
 
 In an action for malicioiis prosecution tlu ,n'den of pi-oof of the iibscnce (ii 
 reasonable cause, ajid the jiresence of mali, csts on the plaintiff; Mmi.tl v. 
 .V. M. III/. Co., rfi L. T. N. S. ().'); ///«/•« v. I<](iiilhi,;; 8 l^. B. I). Kw ; in an 
 action for false imprisonment, ncuther allegation nor proof of malice is ni'ces- 
 sary, aTid the burden of shewing reasonable cause is on the defendant ; llid-x 
 V. Faidknet; niipra. 
 
 Nogligencc. A statement of claim was held sufficient, wiiich alleged that while the plain- 
 tiff was using an hotel, of which the defendant was a pronrietoi', as a guest for 
 reward to the defendant, by the negligence of d(>fenda!it the ceiling of tlienMmi, 
 ii. which the plaintiff then was, fell upcm and injured him : >SV ;//(/)/.< v. Fhm'iice, 
 47 L. .1. C. P. .")!)S. Negligence averred generally, was held sutiicient 'm{>iiilli- 
 nail. V. ('((Hiidd Sdnlhi-ni /?//., fJOnt. 007. 
 
 Allegation 
 of notice. 
 
 Implied 
 contract. 
 
 lOH. Where it is material to allege notice to any i)erson 
 of any fact, matter or thing, it shall be sufficient to allege 
 such notice as a fact unless the form or precise terms of 
 the notice (a) is or are material. J. A. Rule 187. 
 
 Same as the Eng. R. 1875, 'O. 19, r. 2(J, that of 1H8.S, H. 21!l, has at (,() th« 
 words "or the circmnstances from which the same is to be inferred." 
 
 40!il. Where any contract or any relation between any 
 persons does not arise from any express agreement, but is 
 to be implied from a series of letters or conversations, or 
 otherwise from a number of circumstances, it shall be 
 sufficient to allege the contract or relation as a fact, and to 
 refer generally to the letters, conversations, or eircura- 
 stances without setting them out in detail ; and if ui such 
 a case, the person so pleading desires to rely in the alter- 
 native upon more contracts or relations than one, as to be 
 implied from such circumstances, he may state the same 
 in the alternative. J. A. Rule 138. 
 
 To the same eflfect as the Eng. R. 1875, O. 19, r. 27, (188.3, R. 22 
 
RULES OF PLEADING. 
 
 489 
 
 An aprt'onicnt is not strictly siMiaking ii fact : it is an infertiiict' of law from RlUes 
 facts. The material facta siiionld therefore Ix^ stated: Rule 3!t9. If the 410-413. 
 "exi)ress agreeni' *••• " is in writing', that fact will best he stated, and the eflfect 
 of tiie document set forth : Itiilr 4()(). If the a^ri'tanent is to be {fathennl from 
 a sc^ries of letters, conversations or circumstances, the present Riilt applies : 
 TiirqiMiid V. FciUDii, 40 L. T. N. S. 543 ; see also .S'/» /////, v. Lcriiii/t; 3!( L. T. 
 N, S. .57!); .Vow/ v. Mun-uw, 40 L. T. N. S. 100 ; and Ai)p. Form .")S. 
 
 Wliere an agreement to have any effect in law must be in writing, it is suffi- 
 cient to allege that there was an agreement withcnit alleging that it was in 
 writing. That it was in writing is matt»^r for evidence at the trial : Pascoe v. 
 IHi'hii riU, B) L. .r. Chv. 340 ; and it lies ui)oii the party setting up the agree- 
 ment to \iTo\i' one sufficient in law at the trial : I'rivcll v. //"//, Mr. Dalton, 4 
 March, 1HH4. 
 
 410. Neither party need in any pleadinj:; allege any Facts pre- 
 raatter of fact which the law presumes in his favour, or as need not 
 to which the hurdeii of proof lies upon the other side, ''® stated, 
 unless the same has first heen specifically denied. 
 
 [K(j. — Consideration for a hill of exchange where the 
 plaintiff sues only on the hill, and not for the consideration 
 as a substantive ground of claim. J- A. llule 139. 
 
 Same as the Kng. R. 1«75, <>. 1!>, r. L'8, (18H3, H. L'21). 
 
 411. If either party wishes to deny the right of any '^""'ai of 
 other party to claim as executor, or as trustoe, or as tativecapa- 
 assignee in insolvency, or in any representative or other *'**^' 
 alleged capacity, or the alleged constitution of any part- 
 nership firm, he shall deny the same specifically, lor the 
 
 same will be taken to be admitted.] J. A. Rule 140. 
 
 The Kng. R. 187.') O. 10, r. 11 (1883, R. 2.38), does not ccmtain the words in 
 l>rackets ; otherwis'' tlie liub'fi are the .same. 
 See notes to Riue 403. 
 
 The rule was ttie same as Law undiT Reg. (Jen. T. T. 18,5(i, No. .5, as to 
 iinsignees in insolvency, exectitur.-i, and administr.ators and ])ersons author- 
 ized by anv Act of I'arliament to sue or be sued as nominal jiarties : .see Jones v. 
 Hrnirn, 1 Hing. N. O. 484, and Ilarr. C. L. I'. Act, 712. 
 
 412. Unless the incorporation of a corporate party to incoipora- 
 an action is specifically denied in the pleadings, it shall 
 
 not be necessary to prove it. New. 
 
 41J$. Where a contract is alleged in any pleading, aRaredeniai 
 bare denial of the contract by the opposite party shall be cnw denial 
 construed only as a denial of the making of the contract in ".^^^^ ™**'' 
 fact, and not of its legality or its sulhciency in law, 
 whether with reference to the Statute of Frauds or other- 
 -■■- J. A. Rule 141. 
 
 wise 
 
 Same as the Kng. R. 1875, «). 10, r. 23. 
 little more e.xpHcit. 
 
 The Kng. Rule of 1883, R. 216, is a 
 
440 
 
 Rule 414. 
 
 statute of 
 Frauds. 
 
 No plea iu 
 abateinentc 
 
 PLEADINGS. 
 
 A pU'ii of unit est fact itiii plfiidttl t(» ii (It'clanitiDii HImI licforc Tlif JutliaUiiir 
 Act, 111 ;iii action on a |)(»licv of insurancf, was held not «'nil)arrassin(^ ; as uiultT 
 this Jiulf it must he treated as a <lenial of tiie making of tiie contract of ni«ur- 
 ancB in fact : Burnett v. Uinmi Mat. F. Ins. Co., 32 C. 1'. 134. 
 
 In an action of ejectment liy an assignee of a les.see against the assignow, the 
 statement of claim alleged an assignment liy deed l)y defendants to the |>kiii. 
 tiffs. The defendants denied " tliat they had assigned or made over the 
 jireinises" to the plaintiff. This was lield under the corres|K)ndin)^ Irisii Rule 
 to put in issue tlie e.xecntioii of tiie assignment only, and not its invalidity ast 
 contrary to a covenant against alienation in tiie lease : J/di/ci v. ('onor«n, 8 
 L. K. I'r. 75. 
 
 The effect of this Itiilr is to leciuire the defendant who wislies to rely on the 
 Statute of Frauds to jilead the statute specifically. Ik'fore tliis Act tliere wan 
 a difference in this respect between the practice at Law and in Kfpiity. "At 
 Law if the contract was denied, it was a matter of ('vidence whether tiie contract 
 was one which could be sued upon, or wiii^tlier the remedy was barred liy tlif 
 statute ; but in K(|uity, if tiie defendant intended to rely uimhi the Statute of 
 Frauds or any other special statute, he was compelled to make a special aver- 
 ment of his intention " : /»7'MelliKli, L..I., in Ctarh v. Cnlloii-, 4(i L. .1. C^. ]\. 54; 
 see also Monjau v. Wiirtliiiiiitnn, 3H L. T. N. S. 443. 
 
 Formerly in Eciuity the statute might iiave been relied on by demurrer 
 where the facts, wh'ch made the statute apjily, appeared on the face of the 
 bill: Wmut v. Afid'idcii, 2 Sm. & (i. ll;-); Agnew (m Statute of Frauds, 4!)4 : 
 and might have been relied on as a defence, tliough not pleaded in the answer: 
 mif/c V. Wilde, 20 (Jr. r>2l ; .sn/ rhi,- linller v. Chiurli, 18 (Jr. 1!(0 ; Imtin 
 iUiirkf V. Cdllnir, .•iii/ini, the plainiMf by anticipation of the defence of the 
 statute alleged facts to siiow that the contract though verbal was a binding one 
 under the statute, and tlie defendants traversed tliese facts merely, not seiting 
 up the statute. It was held that defendant was not entitled to rely on the 
 statute. 
 
 The facts which make tlie statute ajijily should be stated, and the particular 
 provisions relied uikhi should be pointed to. It is not sufficient to merely 
 make a general statement of reliance on the statute : I'li/li ii v. Sntltin, 40 
 L. T. N. S. 3()3. 
 
 The defence of the statute cannot since the .Judicature Acts be rai.sed by 
 demurrer : CattiiK/v. King, .5 Cii. I). (MiO ; Morqan v. Worth iniftmi, 38 L. T. N. S. 
 443 ; Towle. v. Toplinm, 37 L. T. N. S. .%« ; Hawkin.i v.' Lord J'rnrhi/n, 4 
 App. Cas. 51; Slutrdlowv. Vot.tcrill, W. N. 1881, 2; h'lilrher v. Fiitclm; 2!) 
 W. R. 884, and see notes to Rule 402. lint where the olijection of the statute 
 has been once raised by demurrer and overruled, it may be afterwards insisted 
 on at the hearing without lieiiig pleaded : Jolindssmi v. lioniintc, 2 Cii. D. 
 298. 
 
 Where the statute is not jiUwled, it cannot now be relied on as a defence : 
 see Ol/iii V. Finhcr, 34 Cli. D. 3t)7. 
 
 As to uarticulars in pleading The MitxUr and Scrrnut Act so as to negative a 
 partnersliip; see Nril v. /'nrk; 10 1*. }{. 47(i. 
 
 414. No plea or (Jefence shall be pleaded in abatement. 
 J. A. Rule 142. 
 
 Same as the Kng. R. 187;"), (). 10, r. 13, (1883, I{. 253). 
 
 A plea in abatement was one whicii showed some ground for abating or 
 quashing the writ, or the writ and declaration. Such (ileas were generally 
 based on the non-joinder of parties, or the fiersonal competency of the partie.s 
 to sue, or be sued. An instance «>f an ineffectual attempt to raise what 
 amounted to a pk^a in abatement, will be found in Prciton v. Lamoiit, 1 Ex. D. 
 301. 
 
 Though the form of objecting by means of a plea in abatement to the non- 
 joinder of a defendant, who ought to be included in the action, is abolished. 
 
IlL'LES OF PLEADING. 
 
 441 
 
 vet an iipiilicatioii to luivc hucIi person iiicliulcd as ii (l(>r('ii(liuit oiif^ht to Im' Rules 
 'ranti'd or refused ii))on tlie siuiie priiicipleH on which a plea in ahateinent 416, 416. 
 would lii've succeeded or failed : /«;• Lord Cairns in Ki mini v. Ilnmiltnn, 4 
 A|)|i. ('as. r)1(i. 
 
 A (lefeu(^e stating tiuit tiie plaintiff is a niiirried woiniiaand her inishand is a r 
 iieccssiirv party is in reality an infoi'nial plea in abatement and is no defenoe : 
 Aliiiitloff V. Oiiiiinhi'iiwr, :<!• VV. H 42'.l. 
 
 415. No new assignment shall be necessary or used.Noiiow 
 But everything wliich was formerly alleged by way of new mont. 
 assignment is to be introduced by amendment of the state- 
 ment of claim. (^0 J. A. Kule 148, 
 
 .Same as the Kur. U. 1S7.\ O. ]!», r. 14. The Rule of 1SS3, R. L'HI, adds at 
 {(i) fill- woriN "or l)y way of I'eply."" 
 
 Sometimes, owing to the g(!nerality of a declaration, the defendant was not 
 sufficiently guided by it to the real caust^ of complaint, and was therefore led 
 to apply his plea to a difft^rent matter from that which the plaintiff had in 
 view ; for example, a plaintiff might have been twice assaidtefl by defendant ; 
 <iiU' of these assaults may have been justifiable, as having been committed in 
 self-defence, while the other might be withonf excuse. Supposing the plaintiff 
 to sue in respect of the latter, the declaration from its general terms would 
 not necessarily inform tlx! defendant that it was the s«'cond. assault, and the 
 defendant might plead to the first, .vin HKxmilt ilnnrHiii. The iilaintitf then 
 had no e )ursi' but by mnv assignnient to declare that he brouglit his action, 
 not for tlie first, but for the second assaidt : see Stei)lum on Pleading, 1S7. 
 .Such an occurrence is not easily conceived under the i)resent system, where 
 the fiicts are stated, and not the legal rt^sult of facts only. .Should it hapi>eii, 
 however, the statement of claim nuiy be amended. Tliis /tide is not to be 
 construed as rendering an ainendment of the statement of claim necessary in 
 other cases than those in which a new assignment would iuive Iwen necessary 
 under the old system pleading at law. In other cases, if n*'W matter is raised by 
 defendant, the i)laintiff may either amend, or may reply by traverse, or con- 
 fession or avoidance, or both : see Jfall v. Kn, 4 Ch. I). .341, and Enrp v. 
 Hciulrrmii, H Cli. T). 204. 
 
 410. No defendant in an action for the recovery of land Defence to 
 who is in possession by himself or his tenant need plead recovery of 
 his title, unless his defence depends on an equitable estate'*'"*' 
 or riglit, or he claims relief upon any equitable ground 
 against any right or title asserted by the plaintiff. But 
 except in the cases hereinbefore mentioned, it shall be 
 sufficient to state by way of defence that he is so in 
 possession. And he may nevertheless rely upon any 
 |:;round of defence which he can prove, except as herein- 
 before mentioned. J. A. Rule 144. 
 
 Identical with the Kng. R. 1875, O. 1!», r. 1.5, and with Kng. Rule of 1883, 
 R. 204, except that the latter provides that by so ]>leading he shall be taken 
 to deny the allegations in tlie statement of claim : see Daiifurd v. McAnultp, 
 
 and note in/rn. 
 
 This /{((/(• (inly a]>plies to a defendant. In an action of ejectment the state- 
 ment of claim is as nmch subject lo the foregoing Rule» as any other action, 
 and the jilaintiff must tlurefore s«t forth the material facts uiwn which he 
 rehes to |)rove liis title. The effect of a deed is not a fact, and a statement of 
 clauu which merely alleged that by virtue of certain deeds, etc., plaintiff was 
 
 1^1 
 
442 
 
 PLEADINGS. 
 
 m 
 
 Rule 417. i'iititl('<l to ]i()SHfSHi()ii (if liiiid luid did imt Htiitf tlif |iui')i(irt of tlic dci-dsni 
 set out till' pliiiiititf 'h |)cdi>,'ivc, or sliow tlif dcvolutidii of title liy wliicli tin- 
 laud in (pifstion iiccaiiK' vested in tlie |>1aiiitiff, wan tlierefure held eiiiliamisHJiiif ■ 
 /V/////V" V. I'hilipiix, 4 <^ |{. I). 127; 'M L. T. N. S. :{2!l and .ViC, ; IxivhV. 
 ,/tnii.f.i, 2(1 (/li. I). 77M. So also a stati'nient of claim wliieli HJniply allej^ed that 
 tlie jiluintiff had iM-en wronKfidly dispoHsesHed of tiie land Ity the defeiKlunt 
 was set aside for ni>t statin^f the facts which shewed tiie phiintiff's interest in 
 the land : <)'<',„ni<ir v. O'Hiim, H L. |{. Ir. 24!». 
 
 In an nc^tion for dower, the fai^t showinif the rif,dit of dower (which is a IcKiil 
 con(^lnsion from the facts) must lie stated : Liiiii/ff v, (Uirrifr, 10 I*. |{, (il2. 
 
 A statement of claim sVatinj,' that "hy virtue of a certain settlement, tli'> 
 )laintiff is entitled " w ithoiit setting out oi' statinj,' the effect of the limitatidii- 
 
 Itiililill V. StiiilliiiKiii; :\\ Sol. .lour. ISH. 
 
 in the settlement is insutfieient 
 
 \ statement that the plaintiff, or any person tliron^h whom he (tliiiiiis, wii-. 
 on such a day sci/.ed in fee simple in possession, would seem to he .suftieient 
 statement of a iihiintiffs title : see the l''orm in Wilson's .hid. Act 7tiie(l. UI'l. 
 and Smith \. <'<iiiiis, (liefore Chief .lustice (ialt. Sth April. ISHll.) In limltii v. 
 Z<mf7/, 1(1 L. I{. Ir. \'M. a jfcneral alle«-atioii of tlie plaintiffs (leri\Mtive titli- 
 wu»s iield .sutticient. 
 
 In several c.'ises under the Irish .liid. .\ct a defence in actions of ejectiiiciit 
 for nonpaynieiit of rent has lieeii set aside as eniiiarrassinK', where it in effect 
 merely denied that defendant was tenant, without allexiiiK' anythiii^f as tn tin' 
 defendant's title, or saving- that lie was in possession : see llililiin \. O'Fnnrll, 
 S L. H. Ir. l.'iS;' lid nils \. Jiiinn-. S 1,. |{. |r. Km; /ioir/n'i v. Luirmi, Id 
 L. I{. Ir. !». 
 
 Where the plaintiff's case depended on the lieirsliip of .\,, and that fiut wiic 
 stated sinijilv, without showing I'ow A. Iiecame heir, the pleadiii^'^ Wiis held 
 sutticient : krr/i/ii v. /uy/i/ii, 42 li. T. X. S. 24H ; 2.S W. |{. o.'n. 'I'he defeii- 
 d.ant relying on an ecpiitahle title mu.st, in his statement of defence alli;,'!- 
 the nature of the deeds and documents on whitdi he relies; mid it is nut 
 HutHcient to allege that hy virtue of divers nifsur acts and im'siir assunuiws, 
 all the estates and interests of the jdaintiff's predecessor in title iiie now vested 
 in the defc'ndant : Sii/ilif/r v. ./miii.s, 40 L. '1'. N. S. .S7o ; 27 W. I!. 7-')(>. .V 
 defendant wliojdeads merely that lu^ i.s in posses.sion, was always at liherty tn 
 ((uestion the plaintiff's title, even nndi-r the Knglish system of pliadiiifj, hy 
 which what is not denied is taken to be iidmitted : Ihnifuril v. .\lrAiiiilhl,(> 
 l^. B. I). (145, affirnitd in H. L. S App. Cas. 4.5(1 ; and tlii.s is iiiivv cx|)rensly 
 provided in the Kng. Con. Rule of 1.SH3, 254; n /mtiiii-i under the Oiitiui" 
 sy.stem. where mere non-adnii.ssion imts the pl.'iiiitifif to proof. 
 
 sy.stt 
 
 Sec A ttonuji-di III iiil 
 AdiiiiiKoii. 17 (hit. 425. 
 
 V. Mlilliiiiil Rii. Cii., H Ont. 511, and Ailiium 
 
 IMpa of not 
 «uilty by 
 statute. 
 
 417. Nothing in these Rules contained shall affect the 
 right of a defendant to plead not guilty by statute. Ami 
 every defence of not guilty by statute shall have the same 
 effect as a plea of not guilty by statute has heretofore had. 
 But if the defendant so pleads he shall not plead any other 
 defence without the leave of the Court or a Judge. J. A. 
 Rule 145 
 
 Siune as Eng. K. 1875, O. lit, r. 1(1, (188.3, R. 208). 
 
 Then! are iiumerouH statutes authorizing this defence of "not guilty "by 
 statute to be pleaded : C//., R. S. (). c. 73, s. 1.5, eniixiwers .Justices of the Peace 
 and other public officers to plead it : l>iilf- v. Vnini, 2 P. li. 1(10. 
 
 By R. S. O. c. 170, s. 42, in notions against a Railway Comiiany foi' 
 indemnity for (hunage or injury sustained liy reason of the railway, the defen- 
 dants may ph'ad it ; but see ItnNt v. (h-inul 'Trinih Rii.rn., 15 U. C. (^ B. .S-W; 
 
 ^, 
 
"not guilty," hy statute. 
 
 445 
 
 111; 
 
 hi>- V. Ihi.tliili' -l' /'"^'' (/"'■"" /'.'/• '"•. 17 U. C. q. B. 282: mul by R. S. O. Rule 418, 
 c. 24l>, f. !t(t, in iviiy action linnij,'ht for iviiytliiiiff done iti pursuiiiioo of that 
 \ct wliici) I'elattM to |irivat<' lunatic aNvlums, tlii> defendant may plead it : mo« 
 iSiillVii k Leake i'rec. of I'leadingH, Srrf ed. 7»4. 
 
 Till' statute must Im' formally pleaded to eiiahltt the defendant to avail him- 
 self (if any defence under it ; .\lt Kdi/ v. <'iiiiiiitiii;/.s, (I Out. JIK). 
 Where the plaintilf was not aware of the defence intended, (lualitied |)artic- 
 'irs (if a defence of "not K'liilty liy statute" were onlered : •IfinniufK v. 
 
 /.'. T. ii'i- ''•'; 11 J'- •{- :w<'- 
 
 "Not K"ilty hy statute" cannot lie pleaded to an tuition for specilic perform- 
 •iiice of a (contract: /'i/i'i/mniiiii/i v. .Uii//iiiiil /!//. I'n., 1;' |'. H. 1ii7 ; and see 
 'HP'ini V. Ilhidirr/I, :\', U. ('.<l. M. 2:«t. 
 
 'Pile plea of "nott,'uilty )>y statut>' " |>uts in issue not only tiie defence 
 whii'li the statute ^ives, Init also all thi' di'feiices which were adniissilile uud<'r 
 the ^fciieial issue at ("oninion fiaw ; A'r/s; v. Cliflcii, 11 A. it H. IJ.'?!. 
 
 \n eiiuitahle defence is not admissihle under the ^feneral issue liy statute: 
 liiuini V. lUiirl.nrll, ,V) U. C^ l). 15. 2;{!l. 
 
 The Court will not in j^eneral with this plea allow other pleas: .\f(i/c v- 
 McKniui; 2])owl. J'. ('. 7I>2; t'i.f/i<'i- v. Thiiiins .hniv. Rii. <'<i., o IJowl. I'. ()• 
 773: ifniini V. i'lemnl, \:^ .M. k. W. 4;<r>; /-<•.'/.'/'■ v. />'(•'/(/, 1 M. &. (J. SilH ; 
 Olhuhihnc V. M<i(iiii,i; \ \\ K. LSI ; /A'/-' v. 'Vv.//, •> \\ H. ItH). 
 
 Ill lliizclfiiiil V. (.'Iirliiiuf'iiiil Ijicitl liiiiiril, (not reported hut cited, flharley's 
 .lull. Act, 3rd ed. oO.S), an action for taking' gravel, Jesse], M.H., Rave l(;ave 
 to (lefeiidiints to plead the defence of sale Ly, and payment to, the authori/.ed 
 iigeiitof the i)Iaintiff, in addition to "not guilty." 
 
 .V jilea of the general issue Ly statute is not demurraLle though no statute? is 
 iippliciihli? : <'(iiriiK v. Wntir ('iimmis.tiaiwrs nf Otlmrn, 2') U. C. C. I'. ;V)L 
 
 111 an action in tlie County Court a jilea of "not guilty Ly statntct " does not 
 necessarily raise any (piestion as to tin? title of land, so as to excludf? the juris- 
 diction of the Court; the general rule Leing that that particular defence must 
 not oiilv lie ph^aded Lut verified Ly affidavit : A''// v. (Inniil Tniitl: I'n. <'"., l(i 
 C. I'. 2h2. 
 
 41S. Where a defendiint pleads not guilty by statute, I'lea of 
 intending to give the special matter in evidence, by virtue bystatuto," 
 of an Act of Parliament, he shall insert in the margin of the *ofe?enco" 
 paragrnpli of the statement of defence containing the plea ''^st^tuto 
 the words " By Statute," 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, and shall specify 
 whetlicr such Acts are public or otherwise, otherwise the 
 plea sliall he taken not to have been ])leaded by virtue of 
 an Act of Parliament. (Rules of pleading T. T. 1856, 21.) 
 
 The iimvisioiis of this A'c/c must Le strictly followed : Ihiml v. Cunmi't; If) 
 Out. 71(1. Both the statute Ly which the pl<?a is allowed and that containing 
 the matter relied on Ly way of defence must Le mentioned in the margin: 
 \'aii\iill,r V. ItiiiliihiiO L. '' " -- - 
 
 !t C. \\ (18. 
 
 fe. 
 
 lliiniK Rij. r,/., 27 U. C. (^. 13. 581 ; n>l,h V. AnioU, 
 
 If the defendant omits to follow the retpiireuients of this Riili, he cannot 
 trive 8|H!cial mattt'r in evidence to bring himself within the terms of an Act of 
 Parliaim^iit which allows a plea of "not guilty": Cnji v. Lun) Foivster, 8 
 M. k W. ;U2 ; ./</(/ V. McKinn, 1 II. C. C. P. 13. An amendment may Home- 
 times be allowed to supply the omission, even after verdict : Kdvurils v. Hodges, 
 
m 
 
 
 444 
 
 Rules 
 419-421, 
 
 ■i*ii! 
 
 rncoiiHiK- 
 tout plotid 
 i'«KH, 
 
 I'liKADINflS. 
 
 l."> ('. 15. 177 ; Villi Ndlli'r V. Ilnll'iilii <!■ /,"/,(■ Uni'mi Riiiiii'iiij t'luiiftiiiiii, l>7 (', f\ 
 <^. 15. ")MI. Mut wht'iT 11 (Ifft'iiilimt |ilrii(lf(l " not ff\i'.lty," iiiti'iidiii'.;' to jiiMtify 
 imdiT a Htatiitf, liiit tlif Nisi I'riu.s ri'CDid liiul not tlic woiils "liy >'tiitiiti' " in 
 till- iiiarKiii, till' >lii(lKt' at Ni»i I'riiiH rcfiiHcil t<i allow an anu'iidnii'iit liy tlif 
 addition of tlioHi' wordM, as it was not shown that they wcrr in tlif iiiiiixin of 
 tlif d<'fi'ndant"n plea: Fin'iiniii v Ihiina, \ i'av. k M. l'J7. 'Ili' parties Tiiiiywi 
 act at the trial, and MMhMC(|ii('ntly, a-* to he prccludi'd from raising thf olijcctidii 
 (if thiMiiniHsion to nanii' a particniar Ntatutt' in the margin of tlu' pliu : lUu- 
 lii/i/r V. Nlrliuh'll.s, (ill.* N. :WA. 
 
 TIk' wurdH "ai'i'ordiiih' to ntatutt'" instead of " liy Mtatiite," written in tjic 
 UiarK>i>, are siifticient : I'lilii-ilmni v. <'iiii/i\i/, TV. ('. t^. H. ',W), 
 
 4tU. No plead ing ((»; slmll, except by way of anieiul- 
 raent, raisu any new f^round of claim or contain any ailej:[a- 
 tion of fact inconsistent with the previous pleadinj^'s of the 
 party pleading the same. .1. A. Hule 141). 
 
 This is the same as the Kn^'. I{. 1875, <). 111. r. lit (^HH^^, K. L'12), except that 
 at ((') are the wordx ''not l)ein>f a petiti<in or snininonH," and tlii> former priit- 
 ticn was Hwlistantially the same. 
 
 A second pleading mav add a fact to, l)nt must not coiitriwlict, the first : /"'' 
 lire t, L.,1., in /iirx/niii'i' v. ItunriiL, ,Sti L. 'V. N. S. 52 ; 24 W. H. !l(ll ; nor riiisi' 
 ft fresli cause of action : ('nlliniilir// v. Fliiihl, W. N. 1H77, 125. See also ll'/7- 
 liiniLsiiii V. A. <l' X. II'. Hi/. Cii., 12 Ch. D'. 7H7. 
 
 In an action for goods sold, the defence was covertni'e ; plaintiff replied, that 
 lie was not aware that defendant was a married woman, and thonght she wa'i a 
 widow, an<i that she obtained credit liy representing herself to he entitled tn 
 an anniiity under a separation deed : and it was held that the reply did not raise a 
 claim inwinsiHteiit with the previous iileadinR : ('nlh'tl v. I)iikrii.siiii,\\ . N. 1S7(<, 
 52. 
 
 6. Issues. 
 
 Settlement 
 of issuoK. 
 
 Court may 
 order Bcaii 
 dalous 
 matter to 
 lie ex- 
 inmged. 
 
 420. Where in any action it appears to a Judge that the 
 pleadings do not sufficiently define the issues of fact in 
 dispute between the parties, he may direct the parties to 
 prepare issues, and such issues shall, if the parties differ, be 
 settled by the Judge, J. A. Rule 177. 
 
 To the same effect as Kng. H. 1H75, (). 2t), (1HK.S, 1{. .3H()). 
 
 Issues were directed to be framed under this Rule for trying preliminary 
 questions, under Huh' 519, in Wnml v. Aiiijhi-ItitUiui liaiikiini Co., Limited, i^ 
 L. T. N. S. 255. 
 
 7. Striking out. Amending Pleadings, etc. 
 
 421. If upon the hearing of a cause or matter, the Court 
 is of opinion that any pleading, petition or affidavit, or any 
 part of a pleading, petition or affidavit is scandalous, the 
 Court may order the pleading, petition or affidavit to be 
 taken off the file, or may direct the scandalous matter to be 
 expunged, and is to give such directions as to costs as it 
 may think right. Chy. 0. 69. 
 
 As to scandalous matter in the statement of claim, or defence, see Hide 423. 
 
• ; ■ •;?«";• fit 
 
 STIIIKINO OUT PLEADINQH. 
 
 445 
 
 Altliii\i)rli tlit'i'i' is iio Hull' MiK'diivUy (jiviiiK tliHrcHirt |)<>w»<r to tiikf plriidinKH 
 111' iittidiivitH otf till' tili>^ fur prolixity, it Iiiin iicvri'tlii'li'SM mi inlii'i'i'iit puwiT tu 
 (losii: ///// V. Hiivt /iiirin, 'JtiCli. I). J'"; iiiiil plriuliiiKs limy iilsu hi' nrili'ii'd to 
 U'sti'iiclv out for prolixity : .Uarnh \. I'<nil<friivt, \\ . N, IHVCi, 7; I Cliiiri. < 'li. (!ii. 
 (ill; Itiiriiw (iiirntl, ~ ('\i. I >. 17H. 
 
 As to till' piiwiTof tlu'Ciiiirt to sti'ikr out si'iiiiilaloun iimttiT sit liriijlil v. 
 U'lnnr. W. N. tH"H, '_'11 ; ('rurkutill \. Juiimin, 11 ( "li. I ). 1 ; iiiul as to si-im. 
 (Iiilims iiialtir in iitHilnvits, Wiirmr v. Mn.t.ii.s, W. X. IHHl, i\<: h'l ii rici, \ . 
 Knirick, 12 W. H. JWi ; .S<'i//irr \. S„il/h, ~ \\ \{. |(l',» ; Hlah: \. AHiwii, '.i-i 
 W. H. (177. 
 
 N'otiiiii^' ('Mil 111' sciiniliiloiis wliicli is ri'li'\iiiit : /»»■ r'ottciit, L..!., in Fisln r v, 
 Oii'f (I, S ( 'li. I». CM; Jiiikh V. Hiliitiiiildnii, ',H']\y. CIl. IT /< v. \\' 
 
 'M l!iii\ . JUL' ; Milliiiiiliiii V, l.driiiij, (iC^. I'.. 1). lild ; iiiid iii' ti'st is wliitlirr 
 ilii' iiiiittii- iiMi'^ri'd to 111' si'iiiididoiis would lii' aihiiissihli- in I'vidi'o •!• to sliow 
 till' tn li ! auv ulli'yation wliidi is niati'iial witii rt'frri'ncc t.' lii' ri'lii'f 
 imiviil ; Chnslit'w l'lin.i/i<, L. |{. MCliy. '!!!•; ''a^hhi v. ('nnlilnrk, lU :li. 1). Wi. 
 'riicCoiii't lias powiT to striki' out sciiiidalouN iiiattrr from an atlidavit, or to 
 ui'di'i' the piTsoii who lias tili'd it to pay tlir costs of it, on tlii' application of 
 iiiiy |iiisiiii, iM'ii a sti'Miijfi'i' to till' action, or //(( /'') iiintii. It is iin necessary 
 thiit till' applicant slioiild lie the iiijiiied person: Criii'kuiill v. Jiiiikihi, 11 
 CIl. I). 1 ; Miilil/tiiian V. II//.1I.//. L. I{.'l(l('liv. •_'.'« I ; S,i(lli<,y. Si,il/li, 7 1'. H.KHt; 
 15 C. h. .1. "il!: iJiiiltliiiil V. hin; -.'4 L. ,1. ('Iiy. 7«;J. 
 
 Wliele ploceedin^:s are ordered to he t.'lkeli ott' the tiles it is said to lie tllO 
 iiii)|H'r piaetice to destroy tliein : ///// v. t/aii /hiriH, •_'(! (,'liy. I). 471 ; «i<l 
 Ilium is not the proper practice to seal them ii|r; otiierwise should they lio 
 (li'stroyiil, and the order lie suliseiineiitly reversed, they could not he restored 
 ti) the tiles. 
 
 The r'ourt has jurisdiction to order any proceeding whii'li contains scaiidaliniH 
 umtter to he amended; thus, scandalous statements in a hill of costs were 
 (iiili'i'i'd to he struck out ; Iti Millr,- ,{■ Mllln; U\ L. T. X. S. H.-):< ; 'X\ W. I{. 210 ; 
 \V. N. I.SSI, 2:t4; ICr^kliii v. (lartahoir IS Vcs. 134. 
 
 Till' costs of the motion are hetweeti solicitor and client: Kx imrli Tlimfi, 
 1 Vi's. ;t'.M ; H.I- iHiiii I'liiin; 2 M. iV .\yr. 220; h'x /iiirfi Siiiiimiiii, lo \'es. 47<>, 
 ;»i(l lioth the party and his solicitor I'oncerned are lialile to pay costs of an 
 applica ..:i : /'/..• /{iittnifi \. (•'nnin, l(» Ves. 232, and see A'/.v/zn/i v. Wil/is,~t 
 I'li'iiv. iSH ; .1/11)//, t P. |{. 242. .Vs to the disallowance of tln' costs of unneces- 
 sary iiiiilter in pleadings and affidavits, see lln/i' 11!(."). 
 
 42lli. A motion to have any pleading, petition ov ailidavit 
 taken off tlie tile for scandal, or to have the scandalous 
 matter expunged, may be made to the Court or a Judge at 
 any time before tiie hearing of the cause or matter, Chy. 
 0.70. 
 
 As to scaiidalou.s matter in statements of claim or defence, see /'/'//■ 42H. 
 
 .\s to disallowance of ooHts of unnec»'snary matter contained in pleadings and 
 affidavits, see lti:/r 1 !!».'). 
 
 Under this A'////' the .Master in Chaniln-rs, or liiKwl .Fudge, or Master, ha.-- no 
 |X)Wcr to strike out for impertineuct,', interrogatories which hav(! been delivered 
 for the examination of a witnesH under commission ; W'i/Ntnim v. Cmhii, 8 
 I'. R. 83. 
 
 K(ir foriii of noticti of motion, see Leggo's Forms, 2nd wl.. No. 520. 
 
 423. The Court or a Judge may, at any stage of the 
 proceedings, order to be struck out or amended any matter 
 in the pleadings respectively which may be scandalous, or 
 
 Rules 
 422, 423. 
 
 AppllcH- 
 lion to 
 strike imt 
 siwiniliilouH 
 mutter. 
 
 Costs of 
 motion. 
 
 Motion 
 may ho 
 mailo at 
 any timo 
 bot'iro 
 
 Hoaiulal in 
 pleading. 
 
 blaster no 
 power to 
 Htrike out 
 interroga- 
 tories for 
 inipevti- 
 nonce. 
 
 Amend- 
 ment with 
 leave. 
 
446 
 
 
 
 A< 
 
 
 PLEADINGS. 
 
 Rule 423. 
 
 Scandal. 
 
 Auieud- 
 iiieuts. 
 
 which may tend to prejudice, embarrass, or delay the fair 
 trial of the action. J. A. Kule 178. ^ 
 
 Siuiu- lis Eiig. Jtu:' 1875, O. 27, r. 1. Kule SOitcf the Rules of 1883 is <litferent 
 ill hiiigiiage. As to striking out scandalous matter see Hi'/r 421 and notes, 
 
 Tho original Rule contained an additional clause providing that all such 
 ainendinents shall lie made as may l)e nect'ssary for the purpose of detennininif 
 the real (juestioii or (luestions in controversy between the ])arties" : as to whicTi 
 see Ciilh'llc v. h'mulf^ ' (Jh. |). at p. 847 ; liiniiiinitl v, J/nrn's, \V. N. 1X7(1, <) ■ 
 1 Cliavl. Ch. Ca. !».".; Lair,/ v. /iriji/s, 111 Oh. I). 22, 2'.l. This is in effect tin" 
 provision made l)y Rule 444, and has pr;)l)ably tiieretore heeii omitted here. 
 The ])eri'mj)toriiiess of the A'/'/cv was, however, and will still be sul>jeet to the 
 limitation that the wiiole nature of the action muv not bi' changed by amend- 
 ment : JildiUioni V. I'niriixc, 2!t W. \\. 237 ; 43 L. T. N. S. (i(>8 ; and subject 
 also to whether justice will be advanced liaving regard to the nature of tlic 
 proposed aniendment : McJ/lidri/ci/ v. Mrdhniiff, !l 1'. i{. 157 ; ('(iin/hi/l v, Cluii- 
 :n\ II. 471; 3 Out. 2(i!) ; Hi',i,lricks v. MonUi.in, 17 Ch. D. (142; Wflihm v. 
 AVi//, 1!( t^. 15. 1), 3!)4; and tiie time when the a|>i)lic;i.tioii is made; see 
 Vrupjier y. Smith, 2(1 Ch. D. 700; 10 A])p. Cas. 24!(, and other cases, infra. 
 
 Certain amendments may be made without leave The plaintiff may so 
 amend his statement of claim before the expiration of the time for renly: Ride 
 424 ; and a defendant may so amend a counter-claim to which a reply lias been 
 made within the time allowed for jileading to such reply : Ruli: 42"). In other 
 cases Imvc is ncci'.^iiarii, and two classes of amendments are j)rovide(l for by 
 leave : — (1) On the application of the party [ileading, to enable him to raise his 
 real case ; (2) cm the application of the op|M)site jiarty, to have struck out or 
 amended any pleading which is improper, or framed so as to prejudice, 
 embarrass, or delaj' : Rule 423. 
 
 Rules 444 and 780 also contain provision for amendment of defects and 
 errors. 
 
 As to amendment of writs see note to Rule 444. 
 
 Amendments resiwcting the parties are treated of in Rules 308, 324 and 446. 
 
 Amendments which require the addition of parties as well as the restate- 
 ment of allegations are made by the coml)iiierl action of Rule 324 and the 
 present Rule. The latter kind ai-e alone here discussed. 
 
 On a party's (1) Amendment on the application of a party to amend his own pleading, 
 
 own appli- 
 cation. 
 
 When 
 allowed. 
 
 SO as to properly ft-ame his case. 
 
 In Tildesley v. JIarper, 10 Ch. D. at p. 39() ; Bramwell, L..T., said his prac- 
 tice in Chambers had been to give leave to amend, unless satisfied that the 
 party applying was acting mala Ji<(e, or that by his blunder he had done some 
 injurj' to his oi)i)onent which could not be comiieiisated for by costs or other- 
 wise : followed in Re Truf'ort, Ti-affiird v. /iliivc, 34 W. H. oO"; 53 L. T. N. S. 
 4!)8; ';>/Vs v. .S>'Hry', 3() Ch. D. 770, 773. This rule has been subsequently 
 held by the Court of Apjieal to b«^ the correct one to be adopted until a final 
 judgment is obtained by one party. After that he acquires a vested right, of 
 which he is not lightly to be dejirived on account of blunders by the opixwite 
 party committed without fault on his side : Claparade v. Covmwnial Union, 32 
 VV. K. 151, 2(52. This rule is similar to that where an extension of time is 
 applied for : see lb. and notes to sec. 71 of the Act, sapru p. 81. 
 
 The Court of Apiieal in TUdesleii v. Harper applied in respect of an amend- 
 ment at the trial the same jirinciples as if the application had been made 
 before trial on motion : see (Jreen v. Serin, 13 Ch. D. 58i), 5!(5. 
 
 Amendments of the first kind are liberally viewed, and have been allowed 
 after issue joined, and the cause entered for trial, and accidentally iMjstponcd : 
 Roe V. Davies, 2 Ch. D. 72i) ; or at the trial : Kinq v. Corke, 1 Ch. D. W ; 
 NoheVs Explosives Co. v. Jones, 17 Ch. D. 721, 724; Lomj v. Crosslcy, 13 Ch. D. 
 388 ; Green v. Scvin, supra ; Russell v. Canada Liji Assuranet Ca., 32 C. P. 
 250. In such a case perhaps the opixmite party may obtain costs incurred m 
 
AMENDING PLEADINGS. 
 
 447 
 
 res|>e(!t to tlie old jileadinga : see I>au. Piac. fitli ed. 351-52 ; or if a plaintiff, lu- Rule 423. 
 may have the o|)]K)rtuiiit.v piveu liim to eoiinider whether lie will diHcoiitiniie : 
 sHc A''//.'<"/' Til(/)lioiif Ci). V. hi'Uii I'.iiliiitf Cit., 17 Cii. 1). 137. 
 
 Li'iivf til iiiiifiid will generally \n' granted where there has been a slip in 
 plciidiiig. Iiut not, in general, so as to raisi' a fresh cause of action : Clurkc v. 
 V./Kv, ;{| \V. 1!. ty ; 44 L. 'V. N. S. IWl. 
 
 Wlific liy a slip in a pleading the legality of a will intended to lie impeached 
 was iidniitted, leave to amend was granted ; Smith v. liinitli, 5 Ont. G!(0, (JDS. 
 
 Leave to amen<l at the hearing may he granted, tliongh the proposed aniend- 
 iiieiits set lip a case not raised hy tlie claim, and may re(|uire an adjt)urnm(int to 
 obtain fresh evidence : Jiioli/inii v. Murf/iirli, 1 Ch. 1). 42: see, however, the 
 rciiiiivk as to the lieadnote to that case, A'c St. .\'ii:.(iii-i' Co., 12 Ch. I), at p. !t2 ; 
 Hi'tls V. I)"ii://il;f, 5 1'. I). 2f). Such leave will in general he granted on pro|)er 
 terms so as to enai)le the re.il (|uestion between the parties to lie tried : Lain/ 
 V. Jirim/.i, I'.lCii. L). 22 ; h'i'it:. v. S/,ni<r, 'AV, C\\. I). 770, 773. 
 
 Where all the evidence tiuit could throw light on the case has been given, it 
 is a mere matter of form to adapt the pleadings to the matter-i jiroved : limi'fli 
 v./ir/,r/,, (iOnt. (Ji)!!. 
 
 The Cniu't lias, however, a discretion as to the amendment : see Ashlrii v. When 
 Taulm; 111 V\\. (). 772 : (intcs v. Fuir.slrr.s, 4 Out. .j3."); and leave was refused at refused 
 the lieai'iiig, where no reason ajiiieared why the bill was not amended when 
 tlie answer came iu : itffurit v. Offurtl, 1 Charl. Ca. (Court) 102 ; .see /joirf/ur v. 
 llaurr, 37 ^\^ H. 55; ')',) L. T. N. S. (i31 ; and where the effect of alhiwing an 
 aiiieiKliiieiit would be to comjiel the plaintiff to new assign an<l addiu'c new 
 evidence: Eilennit v. ('o/)i'ii. 41 Ch. 1). .5(i3. 
 
 Leave was refused, where the Judge thought the amendment would merely 
 'iKilile the defendants to raise, to the plaintiff's title to sue, a techiiicd objec- 
 tidii whicli was not raised on the jileadings (as required by /{iilc 402), and 
 wliicli the defendant never intended to raise, till he jwlroitly sought to avail 
 himself I if it at the hearing: CnllcUr v. f/"fv/c, 7 Ch. 1). H42 ; see also ('(iiii/hill 
 V. Chrl,; tl P. R. 471 ; <>"/' v v. Fnmitn:-:. 4 Out. 535. So also where the e'ffect 
 would he to raise a new ((uestion which would involve an estate in further 
 intricacies, and might more conveniently be raised in a separate action ; Hi' 
 Htiiiht, Bliulit \. Hurl, mil, 42 L. T. N. S. 531 ; or to convert a claim biused on a 
 siilisisting lease into one biised on an eviction : Xcirl/i/ v. S/iKrjif, 8 Ch. D. 3!t ; 
 nee also t'lnrhe \. Wiv/l, 31 Ch. I). (18; Crour v.' Ilitniiait, (5 Ch. D. 753; 
 MrlUiiiriji'ii \. Mcdiiiuis in note to Jtiilc 42() : liliirknioir v. Eil'mnh, W. N. 
 187!t, 175, 24 Sol. Jour. (i7 ; and where the plaintiff had elected to claim in 
 ;i manner inconsistent with the projiosed amendment; i'aniill v. Ilnwrr, 10 
 Ch. 1). ,')02; lliirjiiirr y. Cisi; 28 Ch. ]). 3.5ti ; and v/liere the effect would b*' 
 t(i raise a new issue merely to determine liow tlie costs of the action should 
 Ik- hcirne : llV///«';- v. Wvihji'mm.l, W. N. 1883, 8 ; or to raise a charge of fraud 
 Moiitii'in, wiieii the case has been launched independently of fraud : lleiidricksw 
 at a time 17 Ch. D. ()42 ; or vice nrm : Ihnieitn v. Mvi-k, .32 C. V. 11)5; or 
 require the addition of narties, and raise a new case : XahrVs F.f.pbmirs Co. v. 
 .Iiiwn, 17 Ch. 1). 721; Kih'ntiii v. ( 'niini, xiiprir, and wlu-re the trial was approach- 
 ing and tlie auiendment would have the effect of delaying the trial : Talteuhmn 
 bml Itnaril v. l-i Ciiist'rrdiii// lixard, 80 L. T. Jour. 244. 
 
 Wliere a claim was for specific jitirfonnance "/'damages for breach of an agree- 
 ment, and the plaintiff, [K^nding the atjtio.i, re-sold the subject of the contract 
 niitifying the defendant of his intention to do so, but went to trial without 
 ainending his claim, it was held that, as he had disabled himself from enforcing 
 sjiecitic iH-rformance, the action must be dismissed. Leave to amend at that 
 stage by striking out the specific perf(jnnance claim was not considered proper : 
 //i/)7,vor V. CiH,; 28 Ch. D. 35(5. See also Cnwper v. Smith, 2(J Ch. D. 700; 
 10 X\)\). Cas. 24!). 
 
 In an action for perscmal injuries, the defendants denied the charge of negli- 
 gence. After more than six months they projKised to amend by alleging a con- 
 tract that would transfer the liability to a local Ixjdy. An action against such 
 local IxKly was required by statute to be brougiit within six months from the 
 wi'.twaX of the cause of action. Leave to amend was accordingly refused a« the 
 
448 
 
 Rule 423. 
 
 Jlateriality 
 or naturi) 
 i)f aiiitind- 
 ineiit iiiieil 
 not be 
 slmwii. 
 
 PLEADTNOS. 
 
 jilaintitf would lie im'UU'diiihly injured, and could not be restored to tlie name 
 position as iM^fore tlie defendants' mistake in (ileiuling : S/nrnnl v. Metru. 
 /iii/ifini Till III iriii/x <'(>,, 1(J(^. li. I). ")")((. 
 
 A <lefendant who had put in a joint (h'fenee witii anotlier was allowed to 
 amend liy raisinj,' defences separately from his co-defendant; and an affidiivit 
 showiiif^ the nature of the new defence soUK'htto lie raised or its materiality was 
 not re((uired : I'dn/i/l v. lii'inu., 4 Ch. I). 7^ ; see also /.(./((/ v. ('insx/i'ii, l;i 
 Ch. 1). ;«>1, xiipni, p. 4Ki ; and Clnslcrlh-hl v. JiUirk, iT) W. !{.' 4(1!). in the last 
 case an application was made l>y the plaintiffs in January, 1H77, toaiiieiid tlicir 
 statement of claim after reply deli vei'ed in May, l<S7r>, and heariii},'' fixed t'di' 
 I'Vhriiary, 1S77. Within a few weeks of the hearing' docinnents had been jud- 
 duced liy the defendant for inspection, which contained particulars previously 
 unknown to the plaintiffs, and which streuKthened theirctase ; it w, is contended 
 that the old praittice was not alten'd liy which due despatch and tlieniHteriality 
 of the amendment must he shown. Macon, V.C, said : " l.y the provisions df 
 the Judicature Act I am iclieved from the necessity of inipiirinn' into the 
 materiality of the proposid amendment. 1 think the enlar^fed power <,'i\eiitii 
 the (!ourt l>y •^he .ludicature Act is one of the most useful and lieneficial wliicli 
 has ever lieen conferred on the Court. It is ag'ainst justice that a man slioiild 
 not he at liberty to brinfjf his case forward in the way he thiidvs best, and tlmt 
 he .should be precluded fldUi brinjfiu^'' before the Court those materials wliicli 
 he considers necessary for the pi'oper prosecution of his ease. I do not tliiukit 
 was the intention of the Act that the old (pialification shi uld apply. In tliis 
 case, till a recent period, the pliiintiffs did not know of certain diiciniieiits 
 affecting the subject matt<r of the acti-".!. 'I'hese documents have lieeii laid 
 before Counsel, and on his advice application is made to the ('ourt for leave tn 
 amend. Is not this aground on which the Court will exercise the discretinii 
 which it takes under the Act'.' With the rest of the case I have iintlnnK wn\' 
 to do. "" 
 
 The (!ourt would seem, however, to have power in its discretion, to consider 
 the amendnientand refuse to allow an iimendment which does not appear tolio 
 true, or capable of being substantiated : see Millliniiirn v. Mriliniiis, in iiiiti' 
 
 On applicH 
 tion of tlio 
 opposite 
 party to 
 strike out. 
 
 the tillH' 
 
 II. 471 : :i 
 
 to 7;/(/r 4"J(i, oi' which wuidd set up an iinmeritorious defeni'c, where 
 foi' raising it without leave has expired : see Ciiinilnll \. ClnrLi', il I'. 
 Out. L'llil; ()«trs V. F'uY.sh'rs. 4 Out. ."ilCi. 
 
 As to appealing from onlers granting, or refusinu' leave to amend, see iufru 
 
 ].. 4r)0. 
 
 .-Vn action may, by amendment of the writ and statement of (diiini. lie turned 
 into an action by the .Vtiorney-t Jeneral at the suit of a relator without prejudice 
 to a |)ending motion in the action ; the necessuy sanction of tin Attorney- 
 (Jeneral being obtained : Cnlihnll v. /'ki/Ikiih ffi'ilKH'i, ifc, L' Ch. I). L'L'l ; stie 
 Miinnmii v. /vVo/ uf Laiisitnh, \,, \\, (1 Chy. I-'.I. A\ here an amiiidmeiit of a 
 matter of account as stated in the pleadings v,()uld be allowed before decree, a 
 similar amendment in resjiect of accoiuits filed should be allowed in the 
 .Master's Office : <;,h.-I v. H<i/Iiii,iI, 4 Ont. (i8S. 
 
 • (2) Amendment by striking out a pleading as improper or embarrassing', 
 on the application of the opposite party. .\n embarrassing pleading !<»'' 
 been defined as one in whicii matter is |)lea(led which the party is not entitleil 
 to make use of: }frH<ih wChnmhrrlniii, 25 W. F{. 742 ; W. N. 1H77, 12H ; '■.,'/■> i" 
 an action to enforce a contract for the sale of a patent without warranty, 
 a defence putting in issue the validity of the jiatc^nt : Liitrdit v. Ilmimowl 
 E'liliic Liiiht,'Al\\'. W. 710; W. N. 1H8,S, '.Hi; allegations respecting nmtters 
 compromised in a former suit, and which therefore could not be relitigated; 
 Knoirhx V. Robci-tn, 38 Ch. I). 2(i3. 
 
 A plemling not drawn acconling to the Rules ro.sp{'ctiMg ))leadiiigs is embar- 
 raHxiiig. 
 
 should not Iwi set anide f)n snniinary ai)plicatioii 
 Tlie party should l>e left to demur. 
 Even if the ple.iding iv|)jH>arH to be demtirrable that is not ii stifticieiit rem>n 
 for not striking it out : (//n.is v. (Jmrif, 12 P. R. 48<). 
 
 Ah a general nile a |)leacling hIk 
 lUjlesH plainly frivolous or indefensible. 
 
AMENDING PLEADINOB. 
 
 449 
 
 Tlie power to strike f>ut is not so exercised as to enable one party to dictate Rule 428. 
 to the other how he should plead : Holfe v. Maclaren, 3 Ch. D. 106, lOS ; but 
 iMirtioiis of pleadings have been struck out which are n(jt in accordance wit' 
 Rale 3!)!l; c(l., where they contained irrelevant allegations of fraud, to the 
 effect that in transactions other than the one in question the defendants had 
 iH'eu guilty of fraud : lUnkc v. Albion, etc., 35 L. T. N. S. 2()0 ; statements in 
 the uaturi' of a demurrer : Stokes v. (irant, 4 C. P. I). 2r) ; Menhinick v. 
 Turner, \W. N. 1870, 55 ; 2 Charl. Ch. Ca. 42 ; iininaterial facts set out with 
 prolixity : Dkvii v. OarrcH, 7 Ch. D. 473 ; admissions ; Ankew v. JV. E. By. 
 Ca, W. N. 1875, 238 ; 1 Charl. Ch. Ca. !M), JJavii v. (Jnrrctt, mtpra ; evidence : 
 Jimesv. Turner, W. N. 1875, 239; 1 Charl. Ch. Ca. !H: scandalous statements 
 wliicli were inmiaterial : Duncan v. Vcrckcr, W. N. 187(>, M ; 2 Charl. Ch. Ca. 
 44 ; see ('racknoll v. Jannon, 11 Cli. D. 1 ; Sadleir v. Hniith, 7 I'. R. 40!) ; 
 Cliristiv V. Christie, L. R. 8 Chy. 49!) ; Wixid v. Earl Durham., 21 t^. B. D. 501; 
 and notes to link 421 ; but nothing is scandalous that is relevant to the merits : 
 Dan. Prac. 5th ed. 2!)0. General statements of title may Iw struck out : 
 PhilippK V. PhilippH, 4 Q. B. D. 127; Ridddl v. Stathmnre, 31 Sol. Jour. 183 ; 
 Itiile 41(i ; allegations so prolix as to be obscure: Marsh v. fantr/racl, W. N. 
 1S7() ; 1 Cliarl.Ch. Ca. (Ui ; see also Jfill v. Harl-ltaris, 2« Ch. I). 470 ; and unne- 
 cessarv details though not amounting to statements of evidence; Aderis v. 
 riiri'ih'!/, W. N. 1870, 50 ; 2 Charl. Ch. Ca. 43. The whole of a pleading may be 
 struck out ; a statement (^f claim: Cashin v. VradDrk, H Ch. I). 370; Ker \. 
 ]yilliam.i, W. N. 1880. 10; a defence : Preston v. Lamimt, 1 Kx. D. 3(51 ; or a 
 re|)ly; II7///«/Hwrt v. L. <(• .V. M'. Ri/. Co., 12 Ch. D. 7H7. See also h'oldim/ v. 
 Wharloi, Siiltwnrks Co., 1 Q. B. D. 374 ; W. N. 1870, 40 ; 2 Charl. Ch. Ca. 40, 
 and Harris v. (iamhle, (i Ch. D. 748. 
 
 In an action for seduction a paragraph of the statement of claim alleged that 
 the defendant administered noxious drugs to the plaintiff's daughter. It was 
 held that the i)aragraph could not bi^ struck out asclisclosinga felony for which 
 the defendant ought to have lieen |)rosecuted, inasmuch as the plaintiff was not 
 tlie persiin ujion whom the felonious act was committed, and had no duty to 
 pro-secute : Ajipklji/ v. Franklin, 17 ^i- B. D. 93. 
 
 Allegations in the statement of claim may be struck out where they have 
 heeu abandoned by the reply : lirookinij v. Maudsley, .55 L. T. N. S. 343. 
 
 Whore allegations are projierl}' pleadable under Rule 3!)!), the Court has no 
 power to strike out the i)aragra]>h containing them, unless scandalous, or tend- 
 ing t(i prejudice, embarrass f)r aelay, within the meaning of the present Rule : 
 MUUmjUin v. Loriwj, (I. B. D. 190. 
 
 Pleadings will not necessarily \m struck out because they are inconsistent : 
 Ri' Murmii, Owen v. Morijan, 35 Ch. D. 492; as a rule tiie only grounds for 
 striking out pleadings are that they are (1) embarrassing, (2) scandalous, 
 (3) tending to prejudice or delay: Ryan v. Fish, 10 P. R. 187, l')2; but in 
 i'himherhiin v. Chamberlin, 11 P. R. 501, it was held tliat a defence which 
 was wholly inapnlicable, might lie struck out, '•'.lough neither scandalous nor 
 tending to i)rejuclice, embarrass, or delay. See (Ihuis v. (/rant, 12 P. R. 480. 
 
 A plaintiff by writ joined without leave other claims with a claim to recover 
 land. By tlie statement of claim he omitted the claim to recover the land. A 
 defence setting ui> that the writ was issued without leave was held not embar- 
 rassing ; Wilmolt V. Freehold House I'ropeity Co., 51 L. T. N. S. 358. 
 
 ReasoiiH pleaded to shew why an act, said to be ultra vires, was not ultra 
 vires, were held not to be irrelevant or embarrassing, and a matter alleged as 
 a reason sliould not be struck out because it is a bad reason : Tomkinson v. 
 K E. Ry. Co., 57 L. T. N. H. 358. 
 
 A defence separating a libel, and justifying as to part, without leaving it 
 clear what i)art was justified, was struck out as embarrassing : Fleming t. 
 DoUur, 23 Q. B. D. 388. 
 
 An amendment, under leave to amend, granted when a new trial was ordered, 
 Mdiiig claims for assault and false imprisonment, wliich would be barred by the 
 Statute <)f Limitations if made by a new writ, was struck out. An amendment 
 which will injuriously alter the rights which the parties would have if there 
 were no amendment will not be allowed : Weldon v. Xeal, 19 Q. B. D. 394. 
 
 J. A. 29 
 
450 PLEADINGS. 
 
 Rule 424. Where the plaintiff aHked for an injunction and damages, and recovery of 
 poHsessionj it was held that such claims were inctnisistent and embarraHsing, "aiul 
 the plaintitT, though granted an injunction, was refused costs ; Kvanx v. havh, 
 27 W. R. 285. 
 
 In ResteU v. Str.mrd, W. N. 1875, 240, jjaragraphs introduced into a state- 
 ment of defence by amendment were struck out. 
 
 Where a pleading is defective in not containing all allegations ncce.ssary to 
 show a case for relief, or a defence, the pleading may ff)r that reason be embar- 
 rassing, and where the defects can be supplied it wdl in general not l)e jiropcr 
 to demur, but a motion to strike out the pleading or paragraph may tx' made, 
 Thus, in Scane v. Jhtckett, 3 Ont. 370, the omission in a claim by a simple con- 
 tract creditor to state that he sues on behalf of all creditors to set aside a 
 conveyance as fraudulent against creditors, was held not matter of demurrer. 
 So where a claim for ejectment alleged that jirior to 1874 defendant was tenant 
 and had i)aid rent, but since 1874 had not paid rent, it was held to hv, embar- 
 rassing as not showing any subsisting tenancy : Molloy v. Lewvrn, 12 L. R. Ir. 
 39 ; see also Rowley v. Laffan, 10 L. R. Ir. ft. 
 
 In Finch v. The Guardians of Yurk Union, 35 L. T. N. S. 3()0, a motion to 
 strike out the whole statement of defence was held to lie misconceived, as the 
 defence was not so frivolous as to justify its being set aside, and tlie i)laintiff 
 ought to have demurretl. In Weir v. Barnett, W. N. 1875, 258 ; 1 Charl. Cli. 
 Ca. 03, a defendant ajjplied to comi)el the ])Iainti<T to amend, in an action 
 for false representations in regard to debentures, stated to have been made in 
 a letter and prospectus, and Huddleston, B., refused to order an amendment 
 of the claim, so as to show which of the false rej)resentations were in the 
 letter, and which in the pros[)ectus. 
 
 Where pleadings are such as should be struck out, they ought to be stmck 
 out by the Judge, and not be left to be dealt with as a question of costs : 
 Watson v. RodmU, 3 Ch. D. 380. 
 
 Ordinarily, instead of altogether striking out :t pleading, or part of a pleading, 
 the party whose |>leading is defective will be given an opportunity to amend: 
 Mourhome v. Volville, W. N. 1876, 12; 1 Charl. Ch. Ca. 05; Amm,'\V. N. 187G, 
 24 ; 2 Charl. Ch. Ca. 30. 
 
 Applications under this^wZc to strike out a jtleading are under the practice in 
 Ontario made to the Master in Chambers ; for the jiractice in England in this 
 resi)ect, and as to the costs of such motions, see Marriott v. Marriott, 26 
 W. R. 41«. 
 
 By En?. R. 1883, O. 25, demurrers are alwlished, and in lieu thereof, r. 4, 
 provides for making of a motion to strike out pleadings as disclosiiijj no reason- 
 able cause of action. That practice has not been adopted in Ontario. 
 Appeals. The striking o"t of pleadings is in the discretion of the Judge ; and, as a 
 
 general rule, an appeal from his order will not l)e entertained, unless a question 
 of principle is involved : see Holding v. M hurton Saltworks Co., 1 C^. 15. I). 374; 
 Watmn v. Rodwell, 3 Ch. D. JiSO ; Riiston v. Tobin, 10 Ch. D. 558, 5(15 ; Re 
 Martin, JJiuit v. Chambers, 20 Ch. D. 3(15. Such an appeal was entertained in 
 iMinj v. Garrett, 7 Ch. D. 473 ; Knowlcs v. Rolterts, 38 Ch. I). 2()3 ; see also 
 Laird v. Bri<jgs, 10 Ch. D. 22 ; Peterkin v. McFarlane, 4 Ont. App. 25 
 
 On this subject see also notes to sec. 65, supra pp. 74 and 75. 
 
 In view of the difference between the English and Ontario systems a« to 
 admissions (see Rule 403,) caution will be necessary in applying the English 
 authorities on the subject of striking out embarrassing pleadmgs. The English 
 Rules require a party to deal 8{>ecifically with the allegations in tiie previous 
 pleadings, and to deny such allegations as he is not prei)ared to admit ; but 
 where, as under the Ontario system, a party is not so Ixmnd to make dpnials, 
 lie might not, in framing his pleading, be embarrassed by an improper plead- 
 ing, though he might be prejudiced by allowing irrevelaiit statements of fact 
 to go before a jury. 
 
 m"nt by 424. The plaintiff may, without any leave, amend his 
 plaintiff statement of claim once at any time before the expiration 
 
AMENDING PLEADINGS. 
 
 451 
 
 of the time limited for reply and before replying, or, where Rule 4as. 
 no defence is delivered, at any time before the expiration of without 
 four weeks from the appearance of the defendant who last ^^ 
 appears. J. A. Rule 179. 
 
 Tliis is the same as the Eng. R. 1875, O. 27, r. 2, (1883, R. 310), and intro- 
 duced a pnujtice new to the Common Law Courts. 
 
 A pracijie order to amend was formerly obtained in Chancery but is 
 «nnecesHary under this Jtule as tlie amendment may l)e made "without any 
 leave." /(ulc 432, by using the words "if any," seems also to point to an 
 aiiu'iidinent without order. 
 
 Tlie former Chancery practice warranted the addition, under an order of 
 course to amend, of a plaintiff : JJitnn v. McLean, (> P. R. !t7, or defendant ; 
 Attiii-iieii-aenerat v. Nethercnat, 2 M. & Cr. (504, but not the striking out of a 
 defendant or of a plaintiff, if any of defendants had answered : /hiiui v. McLean, 
 siiprn. As, however, this JUtlc relates to the amendment of a]>leading only, ancj 
 as an action is not now connnenced by a pleading but by a writ, it would seem 
 that no altenitifrti in the frame of the action as to parties can In- mtide by 
 amendment under this Ilulf. It is to be observed also that Riilis 320 and 327 
 jwiiit to the service of added defendants with a inn'l. Rule 324 et svq., and jjer- 
 lia])s 444, would seem to ai)i)ly where an amendment in respect to the [)artie8 
 i» desired. 
 
 It has lieen held under the similar provisionsof the Irish Judicature Act, that 
 a plaintiff amendmg witlujut leave may not add a fresii cause of acti(jn not 
 covered by tiie indorsement of the writ, and that such an amendment is liable 
 to be moved against under Rule 42(i : Moore v. Alwiil, 8 L. R. Ir. 245. 
 
 Such an amendment may affect the costs of prior pleadings, and (m amotion 
 under liiilr 420 such costs may be provided for, but under the Englisli practice 
 it is not the rule that the statement of claim nnist be no wider than the claim 
 indorsed on the writ: see ./"/(/( .w/f v. I'aliiicr, 4 C. P. 1). 2.")8 ; and Buiifke v. 
 Ale.iviidra Jfote/. C(i.,W. N. 1877, 30; (excejit when a defendant has not 
 appeared, and a statement of claim has to be delivered, in order to found a 
 motion for judgment : dee v. Hell, 35 Cli. D. KM) ; 5() L. T. X. H., 305) ; and 
 there seems to be no reason why the plaintiffs should not, except as to i)artie8, 
 make under this Rule as large amendmejits as by the former Chancery prficticc; 
 might have l)een made under an order of ct)urse : as to whicii neeAlcO'illirrai/ v. 
 Md'nnkeji, P. R. 50. The provisions of Rule 420 will eiuible the defendant to 
 obtain the imjwsition of any terms that m.iy be just. 
 
 As to making amendments pending a demurrer, see Rule 300. 
 
 The plaintiff may not change the place of trial by amendment mider this Rule : 
 Bull v. X. Britixh, 10 P. R. ()22 : and it has also been held in England that he 
 may not by amendment under this Rule supply an omission to name the place 
 of trial in his statement of claim : Lurhe v. White, aS Cli. T). 308. But tiiis 
 may not l)e so in Ontario, for it would not be known where the place of trial 
 was to he ; while in England the effect of omitting to name any place is tiiat 
 the action is to be tried at the Middl(!se.\ Sittings. Such an amendment in 
 England, therefore, would amount to changing the ])laceof trial without order, 
 bm, would not have that effect here. See also J'owcll v. 0>hl,, ,52 L. T. N. S. 1H3. 
 
 Where the plaintiff amends after a statement of defence has been jjutin, the 
 defendant may amend his statement of defence under Huh 427, or |)ut in a new 
 defence, or may proceed with his original defence : Jiixlili/ v. WuH, ' Ch. 1). 
 Ui4, (not following Ihuliuii v. Lnwreuce, 40 L. J. Chy. 808; VV. N. 1877, 182.) 
 If he neither amends or puts in a new defence, it is presumed that the original 
 defence will stand as a defence to the amended statement of claim. 
 
 425. A defendant who has set up ^x\y set-off or counter- ArtMii-; ^^^ 
 claim, may, without any leave, amend such set-off or defendant ' y ^y] 
 counter-claim at any time before the expiration of the time j^ave."' ^ ' 
 
 
 ^^ ^T. - .c .- ^^«: - 
 
 
452 
 
 PLEADINGS. 
 
 JJe^'MT '''flowed him for pleading to the reply, and before pleading 
 thereto, or in case there be no reply, then within twenty- 
 eight days from the filing of his defence or counter-claim. 
 J. A. Eule 180. 
 
 Substantially the same as the Eng. R. 1875, O. 27, r. 3, (1«83, R. 311). 
 
 Tlic time for pleadiiijf to a rei»ly is four days : Rule 383. Kor tiie courso to lie 
 pursued by i)laiutiff if the defendant amends, see liiilen 420 and 427, aini lindihi 
 V, WitU, xu})rii. 
 
 The last clause allowing an amendment to be made though there is no re|)ly 
 is similar to the ]>rovision in the ease of a |)laintiff made by /fu/c 424, and is 
 doubtless to enable the defendant to amend if he has obtained any fresh light 
 ')y examination for di.scovery. 
 
 Ihitil the time allowed by this Uulc for auH^iding has expired the ))leadin(rs 
 are not closed and notice of trial can therefore not be given : 'urner v. Tiiiu; 
 12 P. ]{. 280 ; and see notes to Rulcn 3!»2 and 054. 
 
 iiiunt. 
 
 Diaaiiow- 420. Where any party has amended his pleadings 
 amend- Under either 6f the last two preceding Rules, the opposite 
 party, may, within eight days after the delivery to him of 
 the amended pleading, apply to the Court or a Judge, to 
 disallow the amendment, or any part thereof, and the 
 Court or Judge may, if satisfied that the justice of the case 
 requires it, disallow the same, or allow it, subject to such 
 terms as to costs or otherwise as may seem just. J. A. 
 PiUle 181. 
 
 Same as Eng. R. 187ri, O. 27, r. 4, (1883, R. 312). The giving of security fer 
 oosts has been imposed as a term where a new case was raised by tlie amend- 
 ment : Surthampltin Oxif, Iron <C' Wa'jijon Co. v. Midland Waiji/dii Co., 7 Ch. IJ. 
 500. 
 
 Where the plaintiff issued a writ indorsed for the recovery of land, claiming 
 under an assignment and surrender of a lease ; and tht^ defence was tV.'l tli'3 
 lease was in effect a mortgage, and the surrender was obtaiiieo bv ' mv.] ■ mi 
 amendment by the plaintiff a.skin^, in the alternative, forechsur-- > :• l^'ud cui 
 mortgagee was disallowed on motion under this Jiuk : Mcllhcrjc , ,.-«»(/■«. 
 i) P. R. 157. 
 
 Where a plaintiflf strikes out allegations so as to make the iinsive di'f. ai- 
 dant useless, the defendant may apply imder this ifc/c for the co^r , i.nnj'ct's- 
 sarily incurred ; see McWiUivrnij v. MvConkei/, (> P. R. 50; ('larkstm \. U'liite, 
 4 Oiit. ()03 ; Strickland v. Slrickland, 3 Beav. 242 ; Marnr v. Dri/, 2 S. k S. 
 113; Monnseii v. Ihirnham, 1 Ha. 22; Dan. Pr. 5th ed., 351-2; liaitrne v. 
 Coulter, 50 L. T. N. S. 321 ; 53 L. J. Chy. G!)!». See also Wddon v. Scid, I'J 
 (i. B. D. 3i)4, in note to Rule 423. 
 
 4S7* Where any party has amended his pleading under 
 Rules 424 er -425, the other party may [without leave 
 amend his former pleading within four days after the 
 df^ivery of the pleading so amended ; or he may] apply to 
 the Court or a Judge for leave to (a) amend his former 
 pleading within such further time and upon such terms as 
 may seem just. J. A. Rule 182. 
 
 Leave to 
 plead or 
 amend 
 nftor 
 amend- 
 ment. 
 
AMENDING PLEADINGS. 
 
 453 
 
 The Kiig. R. 1875, O. 27, r. 5, Ims not the words in brackets, and inserts at Rules 
 {(i) the wonls "plead or to." In other resjK'Cts the Kulea are the same. The 428-430. 
 Kn«- K. of 1883, R. 313, is more like the |)resent Jiii/i: It allows eight daj^s . 
 for pleiKliiig or amending without leave, and provides that if neither course is 
 taken tlie party shall be deeujed to rely on his orignial pleading. 
 
 42H, Either party may amend his pleading at unyAmemi. 
 time without order on filing the written consent of the coalml 
 opposite party or his solicitor. J. A. Rule 183. 
 
 429. In all cases not provided for by the preceding Appij^b- 
 Rules [numbered from 424 to 428] application for leave toioavoto 
 amend any pleading may be made by either party to the "•'"®"''- 
 Court or a Judge in Chambers or to the Judge at the trial 
 
 of the action, and such amendment may be allowed upon 
 such terms as to costs or otherwise, as may seem just. J. A. 
 Eiilel84. 
 
 The Kng. R. 1875, O. 27, r. (!, (188.% R. .314), has the words "of this order" 
 instead of tlie words in brackets ; otherwise it is the same as this Bule. 
 
 The English Rule seems to be intended to provide the mode in which an 
 ajiplication imder Rule 423 is to lie inaxle. The tibject of the present Rule is 
 pi-ohably the same and to authorize application for leave to amend when the 
 time for doing so without leave under the preceding liule.i has expired. 
 
 The ex|)ression " the Court or a .Judge in Chambers " would seem to have no 
 different force from " the Ct)urt or a .ludge " used in Rulcn 423, 444 and other 
 liultH, HO that the motion may \h> made l)efore the Master in Chambers or other 
 (ifficer having like jurisdiction. See notes to Rules 2 and 30. 
 
 Where an application is made at a late stage, doubtless the jjerson applying 
 will have to pay the costs : see CheMerJield v. lilwk, 25 W. R. 40!) ; Cariji'll v. 
 liiiwer, 4 Ch. t>. 78 ; Kinrf v. Oirke, 1 Ch. D. 57. The time to amend or 
 deliver a new ])leading will vary with each case. Fourteen days was allowed 
 ill I'lanel /iiiildin;/ I'i'icicfif v. /'iirt, W. N. 1878, 204 ; a week in Vhcsterjield v. 
 lilack, miftrn ; a month in WilUnmsnn v. A. <l' .V. IT. Hailuuiy Co., 12 Ch. D. 
 787. Wiiere no time is limited by the order. Rule 430 applies. 
 
 Wliere an allegation was admitted cm the pleadings (under the Eng. system 
 by not l)eing denied) and evidence w.os given contradicting it, leave to amend 8> 
 as to deny the allegations was refused at the trial, the Judge considering that 
 the balance of convenience was against giving the leave: Lnwther v. iJeaver, 
 .37 W. R. 55 ; 5!) L. T. N. S. •>31. 
 
 Amendment was allowed at the tri.al in NobeVs Expkmvex Co. v. Jime.% 17 
 Ch. D. 721 ; Kiui/ v. Gorki', and other ca«es mentioned in note to Ride 423. i). 
 447, and Dallinije,- v. SI. A/bi/u, 41 L. T. N. S. 400. The apnlication should 
 be in Chambers, as a general thing : Marriott v. Marriott, 20 W. R. 41G. 
 
 430. If a party who has obtained an order for leave to Time 
 amend a pleading delivered by him does not amend thoamem?-'*"^ 
 same within the time limited for that purpose by the order, '"^°'- 
 
 or if no time is thereby limited, then within 14 days from 
 the date of the order, such order to amend shall, on the 
 expiration of the time limited as aforesaid, or of the 14 
 days, as the case may be, become ipso facto void, unless the 
 time is extended by the Court or a Judge. J. A. Rule 185. 
 
 Same as the Eng. R. 1875, O. 27, r. 7, (1883, R. 315), and as Chy. G. 0. 83 : 
 see Morgan, Chy. Orders 4th eel, 415-17 ; Dan. Prac. 5th ed. 34G. 
 
 sa. 
 
454 
 
 Rnlei 
 431-434. 
 
 Row alter* 
 ations to 
 be made. 
 
 Marking of 
 
 amended 
 
 pleadings. 
 
 PLEADINGS. 
 
 431. A pleading may be amended by written alterations 
 in the copies filed and served and by additions on paper to 
 be interleaved therewith if necessary ; unless the amend- 
 ments require the insertion of more than 200 words in any 
 one place, or are so numerous or of such a nature that 
 making them in the copies filed and served would render 
 the same difficult or inconvenient to read ; in either of 
 which cases the amendment must be made by delivering a 
 re-print or fresh copy of the pleading as amended. J. A. 
 Kule 186. 
 
 Substantially tlie same aw the Eng. R. 1875, O. 27, - 8, (1883, R. 310), 144 
 words menticod in the Eniaf. R. is two folios according to the English nuKle of 
 computation by which a folio is 72 words. 
 
 In John V. Lloyd, L. R. 1 Chy. 04, it was held that, though amendnienta to 
 a bill did not in any place exceed two folios, the Clerk of Records and 
 Writs had discretion to refuse to file the bill without a reprint, if the amend- 
 ments were numerous and complicated. 
 
 433* TVhere any pleading is amended, such pleading 
 when amended shall be marked with the date of the order, 
 if any, under which the same is so amended, and of the 
 day on which such amendment is made, in manner follow- 
 ing, viz : " Amended day of 
 under order dated day of ." 
 
 Same as Eng. R. 1875, O. 27, r. 9, (1883, R. 317). 
 
 (a) "Where a pleading is amended, the amendment shall 
 be written in ink of a different colour from that used in the 
 original pleading. J. A. Rule 187. 
 
 amende^"' 438. Where a pleading is amended, such amended 
 pleadings, pleading shall be delivered to the opposite party within the 
 time allowed for amending the same. J. A. Rule 188. 
 
 Same as the Eng. R. 1875, O, 27, r. 10, (1883, R. 318). 
 
 8. Pleading Matters arising pending the action. 
 
 434. Any ground of defence [or counter-claim] which 
 has arisen after action brought, but before the defendant 
 has delivered his statement of defence [a) may be pleaded 
 by the defendant in his statement of defence [or counter- 
 claim] either alone or together with other grounds of 
 defence. J. A. Rule 151. 
 
 Same as the first part of Eng. R. 1875, O. 20, r. 1, (1883, R. 282) except that 
 in the latter at (a) the words " or before the time limited for his doing so has 
 expired " are inserted, and the Eng. Rules have not the words in brackets, 
 Reg. Gen. T. T., 1 356, No. 22, was to the same effect : see also R. S. 1877, c. 50. 
 
 Before de- 
 livery of 
 defence. 
 
PLEADINO MATTERS ARISEN SINCE ACTION. 
 
 455 
 
 88. KM) and 107, and Harr. C. L. P. Act, pp. 115 and 731. The result is, that Rules 
 uiultr thiit Utile tlie defendant may intuH defence set up any ground of defence 430-436. 
 which he iuw at the time of dehvering tlie defence, whenever Huoh ^ound 
 aroHe ; luid not innrely grounds (jf defence which arose before the time limited 
 for 'ielivfring the defence. Whether a ground of counter-claim arising after 
 actiuii broiignt can l)e set ui» wan the Hubject of conflicting decisions in England : 
 set- Bediloll v. Maillimd ; Toki- v. Andrews, and other caHes cited in notes to Hide 
 373. The words " or counter-claim " have been inserted in this JB«/e to remove 
 any doubt. See also Chamberlain v. Vhambcrtin, 11 P. R. 501, and notes to 
 Hide 373 and 430. 
 
 485. If, after a counter-claim has been delivered, any Before de- 
 ground of defence arises to anything alleged therein by the defence 
 defendant, it may be pleaded by the plaintiff thereto, or be o?alS""*'" 
 introduced by amendment into the statement of claim, 
 within three weeks after the counter-claim or the last of 
 the counter-claims has been delivered, unless the time is 
 extended by the Court or a Judge. See J. A. Rule 152. 
 
 See p:ng. R. 1875, O. 20, r. 12 ; O. 24, r. 1, (1883, R. 282, last part). 
 
 The original Ride 152 was similar to the Eng. Rules referred to, except that 
 the latter confined plaintiff to a reply, nothing being said about amendmg the 
 statement of claim. The original Ride and tlie English Rules authorized the 
 plaintiff to take the course provided for "after a statement of defence has been 
 delivered." Tlie |)resent /J/'/e is confined to cases where a cnunter-claim has 
 been delivered so that if no counter-claim, but only a defence is delivered and 
 facts exist, liaving arisen after action, which constitute a reply to the defence, 
 the iilaintiff ni^.y not be entitled to proceed under this Rule, but must have 
 recourse to an application under Ride 43i(. 
 
 A i)laintitf may, in his reply to a counter-claim of defendant, counter-claim 
 in resi)ect of a cause of action accruing after the issue of the writ, but arising at 
 tile same time and out of tiie same transaction as the counter-claim of defen- 
 dant : Tnke v. Andrews, 8 Q. B. D. 428. See also note to Rule 373. 
 
 4JJ0. Where any ground of defence [or counter-claimj After de- 
 arises after the defendant has delivered his statement of def^eiicef 
 defence, {a) he may within eight days after such ground of 
 defence [or counter-claim] has arisen, deliver a further 
 defence or counter-claim setting forth the same, [or intro- 
 duce the same by amendment into his statement of defence 
 or counter-claim.] J. A. Eule 153. 
 
 Same as that part of the Eng. R. 1875, O. 20, r. 2, (1883, R. 283) which 
 relates to a defendant ; except that the English Rule has at (a) the words, "or 
 after tlie time limited for his doing so has expired," and provides that the addi- 
 tionaklefeiice is to be raised only " by leave of the Court or a Judge." Leave 
 will lie unnecessary under this Rule if an affidavit is filed under Rule 438. The 
 words in brackets are new. 
 
 A counter-claim and set-off were, under the Eng. Rules corresponding to the 
 original Out. Rides, held to constitute a ground of defence within this Rule : 
 »i»'d V. (Irmdin'n, W. N. 1884, 17, and this will no doubt be so now under this 
 Jode and Ride 373 ; see contra, Vhamberlain v. Chaviberlin, 11 P. R. 501, under 
 tlie original Rides. 
 
 In computing the eight days long vacation is not reckoned : Rule 404; and 
 tlie tune may be enlarged : Ride 485; and see Re Jones, Eyre v. Cox, 25 W. R. 
 
 
 
"T^r- 
 
 466 
 
 PLEADINGS. 
 
 Rules 
 437-440. 
 
 After de- 
 livery of 
 reply. 
 
 Amend- 
 ment on 
 pravipe. 
 
 By pleading hucIi a plea at law under the former jiractioe, a defendant aban- 
 doned all his former i)lea8 : liarher v. I'almer, 1 Halk. 178 ; Ijut this is not so 
 under the present Act, though aemble other defenccH fall to the ground if the 
 plaintiff confesses the new plea ; see Foxter v. Uamyee, 1 Q. B. D. (i(l(>. 
 
 43T* Where a ground of defence to any counter-claim 
 arises after the expiration of three weeks from the time of 
 deHvering the counter-claim or the last of the counter- 
 claims, the plaintiff, within 8 days after such ground of 
 defence has arisen, may deliver a further pleading setting 
 forth the same, [or may introduce such new ground of 
 defence into his statement of claim hv amendment.] 
 J. A. Rule 154. 
 
 This Rule, is substantially the same as the Kng. R. 1875, C). 20, r. 2, (bhc 
 1883, R. 283), in the case of a j)laintiff, except that the words in bnicketH are 
 new, and that the leave of the Court or a Judpe is ref|uired iinder the Knglish 
 Rule. The same liberty is here given to a plaintiff after tiie time for delivering 
 a reply has expired as is, by the preceding Rule, given to a defendant after the 
 delivery of his defence. 
 
 4JJS. In any such case the amendment of the pleading 
 filed may be made without an order, on filing a jmev.ipe and 
 an affidavit that the matter of the amendment arose 
 within 8 days next before the day of the making of such 
 amendment. J. A. Rule 155. 
 
 The affidavit here required is similar to that formerly reqiiired in obtaining 
 leave to plead a plea puis darrein continuance, under R. S. O. 1877, c. 50, 
 8. 107. 
 
 4:^9. In cases not provided for by the preceding Rules, 
 the leave of the Court or a Judge to amend the statement 
 of claim or de^'ence or counter-claim, or to deliver a further 
 defence or counter-claim or reply, is to be obtained on 
 notice supported by affidavit. J. A. Rule 156. 
 
 See Eng. R. 1875, O. 27, r. 5, 6 and 1883, R. 313, 314. 
 
 This Rule will apply, for instance, where a further defence or rejjly has not 
 been delivered under Rules 43<!, and 437, within the eight days uicntioufd. 
 See also Rule 485, and Re Jones, Ki/re v. Cox, 25 W. R. 303. I'lii' affi(iiivit 
 should set forth the new grounds of defence or reply, and explain any (ielay: 
 Haynes' Ch. Pract. 88. 
 
 ma"de]Iver '*'*®* Where any defendant, in his statement of defence 
 wMTfes^Biou or counter-claim, whether by way of amendment or other- 
 of defence, ^j^^^ alleges any ground of defence or counter-claim which 
 has arisen after the commencement of the action, the 
 plaintiff may deliver a confession of such defence ; which 
 confession may be in the Form No. 17 in the Apnendix 
 with such variations as circumstances may require ; and 
 he may thereupon sign judgment for his costs up to the 
 
 Amend- 
 ment by 
 leave. 
 
~ 
 
 PLEADING MATTERS AIU8EN SINCE ACTION. 
 
 467 
 
 time of the pleading of such defence unless the Court or n Rule i4o. 
 Judge shall, either before or after the delivery of such con- 
 fession, otherwise order. J. A. liuie 157. 
 
 ThiH iH Hub.stantiiilly tln' »mw as tli«^ Kiiff. H. 1875, (). 20, r. 3, (1883, R. 284). 
 Hiilfn 22 aiul 23 of \U^f(. (Jen. T. T. IH,')('>, were to the hmiu- effect, Imt were not 
 ai)|ilical)lti where a plea raining hucIi a defence wan jileiuled by one, or more only, 
 of Heveral defendantH. 
 
 I'aynu'nt of money into Court is not a "di^fence" within the meaning of 
 tWiHltiile: fal/iiiulrr v. Hawkim, 2 C. I». I). .5112. 
 
 Under tlie I{)iIvk (»f T. T. 185(1, though a defendant pleiuhKl with hucIi a plea 
 other defences ariniiig liefore tuition, tlie phiintiiT was nevertheless entith'd to 
 confess tlie plea and have his costs, the other pleas falling to the ground. 
 And the present Rules seem to have the same effect : Fantrr v. (lamijii, 1 
 (i. H. IJ. (MM). There is n(» difference in this resi)ect Imtween a plea of bank- 
 ruptcy and any other plea : Fimtrr v. (Jdiiiiire, niiprd. A jdea that d( lendant 
 was an adjudicated bankrupt, uuon an act of bankruptcy which occurred after 
 the service of the writ, was held to be " a ground of defence which has arisen 
 after the comnHtnoement of the action ; " and the jilaintiff was held entitled U> 
 confess and sign judgment for his costs tinder this /{iili' : Clutmpvm v. Formln/, 
 7 Ch. D. 373. 
 
 Such a c!)iif(!ssi()n is a determination of the matters in litigation, and 
 precludes a second action for the same cause : Nrwiiiyton v. Lcri/, L. K. 5 
 C. P. m ; « C. V. 180. 
 
 For form of confession see Ajtp. Form No 17 ; and of judgment for costs. 
 No. 170. 
 
 Th(me Rules a|)ply to a counter-claim in the nature of a i)ecuniary set-off 
 arising after action brought ; Ji/lin v. Mininoii, 3(! L. T. X. H. 585, and to 
 couiiter-claints gciiierally : stttt notes to Rules 373 and 4',Ui, and Beddull v. 
 Maitlaml, 17 Ch. D. 174. 
 
 Where a Judge refused to deprive the ])laintiif of the costs, under the lost 
 clause of this R'lh: it was held that they were costs left within the discretion 
 of the Judge within section 4!( of the J^inglish .Judicatun! Act (corresjKindijig 
 tos. j)5of the Out. Act), and that therefore there could be no appeal fmm the 
 decision except by leave : Perkins v. Beresfnrd, 47 L. 1'. N. S. 515. ■ 
 
 Defendants delivered a further defence of matter arising since former 
 defence. Plaintiff delivered a confession of this defence and signed judg- 
 ment for e ists. The defendants asserting that the jmint was sufficiently 
 raised by the former defence, which was not intended to be waived, and con- 
 senting to withdraw the further defence, the judgment for costs was set aside 
 under this Rule .- Bridiidovm, etc. v. Bitrlxidt), etc., 38 Ch. 1). 378. 
 
 This Hide was held not to apply where the defence confessed did not amount 
 to a waiver of pleas founded on matters which had occurrc 1 Ixffore the 
 commencement of the action : Harrison v. Afarquis of Aheniarrnni/, .57 
 L. T. N. S. 3(i0. 
 
 As to discontinuance of the action by the plaintiff in other cases, see Rule (Ml. 
 
 .i^>'(mB*"l*^ S-5 
 
 
I 
 
 CHAPTER VI. 
 
 MISCELLANEOUS PROCEEDINGS IN AN ACTION. 
 
 '2. 
 H. 
 4. 
 
 r>. 
 «. 
 
 7. 
 8, 
 
 <». 
 
 10, 
 
 11, 
 
 12 
 13, 
 
 NoN-COMPLUMCE AN'Ii KRH0K8, 441- 
 
 443. 
 Amendmknth, 444-44r). 
 PaI'EU, NOTICK8, ETC., 447-452. 
 Copies of i'apeus, foumu, 4i)H-458. 
 Seuvick of papkuh, 45!)-4()7. 
 
 TllANSMIHSION OF PAPEllS, 4CW-471. 
 
 Time, 472-480. 
 
 Examination for DiHCOVEny, 487- 
 
 60(5. 
 Pkoduction and inhpection op 
 
 documenth, .507-624. 
 Motions and othek applications, 
 
 525-649. 
 (i) Generalli/, 525-541. 
 (ii) Applicationsat Chambem, 542- 
 
 549. 
 Inquiuies and acooitnth, 550-553. 
 Special Cases, 654-558. 
 Evidence oenehally, 559-019. 
 (i) Subpd'uaii. 569-663, etc. 
 (ii) Evidence at triah and refer- 
 ences, 664-575. 
 
 (iii) Evidence on motiomi, 57t)-5H5. 
 (iv) ConuniHuionn, 586-604. 
 (v) Atfid'ivits, 005-616. 
 (vi) Admisnions, 617-619. 
 
 14. Transmission of interest pkn- 
 
 dent lite, 620-031. 
 
 15. Payment into Court, 632-640. 
 10. Discontinuance, 641, 612. 
 
 17. CoMPOUNIUNO penal ACTIONS, 643- 
 
 645. 
 
 18. Dismissal of actions, 640-648. 
 
 19. Transfer and consolidation ok 
 
 ACTIONS, 049-052. 
 
 20. Tr-al, 653-703. 
 
 (i) General RuIch, 053-689. 
 (ii) Hiifh Court caxeii in Countii 
 
 Courts, 690-097. 
 (iii) Vexatiom defences in actiout 
 
 to recover land, 698-700. 
 (iv) Inspection of property, 701- 
 
 708. 
 
 1. Effect of Non-compliance and Errors. 
 Tormai ob- 441. No proceeding shall be defeated by any formal 
 
 jeotions. Q^jjgg^-Q^ jj g^ Q iQ77^ ^ 49^ g rj^ 
 
 Non-com- 44S. Non-compliance with any of these Rules shall not 
 with°Ruies. render the writ or any other proceeding in any action or 
 matter void unless the Court or a Judge so directs, but 
 such proceedings may be set aside either wholly or in part 
 as irregular, or amended, or otherwise dealt with in such 
 manner and upon such terms as the Court or Judge tliinks 
 fit. J. A. Rule 473. 
 
 To the same efifect as Eng. R. 1875, O. 59, (1883, R. 1037). 
 
M I' ■; J" I . ', » 
 
 W 
 
 AMENDMENTS. 
 
 459 
 
 When* dhort iiotiue of motion had bunii iri^Kol'^rly giv«<ii but *lit< opiMwitol 
 ittrtv hiwl iiot 1m«'I1 iiijurHl by tli»> irrttjfiilurity, thu (joiirt oxoroimtd itH (liKorn- ' 
 
 • Rules 
 
 imrty hiwl not im«'I1 iiijurHi i>y uw irrttjfiiiuriiy, iiin ijouri oxoroimto iih ciiwjrn- 448, 444. 
 tioii iiiulxr tliiM Kulr, (iixiwHrdt^l tliti irregularity, uud hxiird tlio motion : 
 Umemn v. Bfinon, 22 Cli. 1>. 5(M ; mch also WilliiiiiiH v. />e Buinviltr, 17 
 q. K I). IHO; /<'■ Coidtun, 34 Ch. 1). 22. 
 
 An irrctfuljirity iiuiy \w coiidomid, in tin" discnttioii of tlif Court, ovfii on a 
 m(itii)ri for attiuilnin'iit ; Pcttir v. /ianirl, 'M Ch. I). 172; LitehJielU v. Joncn, 
 2.5 Ch. U. M' Hft' Pilehcr v. //indcn, 11 Ch. J). iH).'). 
 
 Ad to moving against an irrugularity, h«h! J{itlf» 443, and 534. 
 
 Affidavits not Ht'rv«<d with a notice of motiim wer« allowed to be read : Hr 
 Wiimintiin HoKitiUd & SteirnHon, 33 W. li. 550. 
 
 443* No application to set aside process or proceeding^: irrenu- 
 for irregularity shall be allowed, unless made within auonto'Het 
 reasonable time, nor if the party applying has taken a fresh cBwilnKT'to 
 step after knowledge of the irregularity. Bules T. T. 1856, XmJiv 
 lOG. 
 
 The same in effect an Eng. R. 1883, R. 1038. 
 
 If an ohjectiim can Ih- waived, it amoiintH to an irregularity, if not, it \h a 
 nullity: Jinnk nf Uppir (!aimdn v. Van Vimrinh, 4 U. C. L. .1. 232. The ten- 
 dency of the caHeH in to conHider defects as irregularitieH, rather than nullitiex : 
 llirr V. I)(mijlti!<, 4 P. R. 102. A stranger cannot set asid<! |>roce(*dingH for 
 irregularity : I'lrrin v. Bowrn, 5 V. G. L. J. 138 ; Balfour v. Ellimn, 8 
 U. C. L. .t. 330 ; Mclunzw v. Hiirrh, 10 IJ. C. L. .T. 213 ; Nicholls v. Niclwll^, 
 3 P. R. 201; see, however, BuiuKtic! v. McMuxtcr, (» (). S. 32 ; tniless they are, 
 in iffcct, fraudulent : MclJunnld v. Bdce, 12 (ir. 48; and nee Martin v. Bou- 
 laniitr, 8 A\)]>. Can. 2iMi. 
 
 The notice of motion must npocify the irregularity : Rule 534. 
 
 A writ joining causes of action which should not be joined witli(;ut leave is an 
 irregularity, ami aijpearance tosuch a writ is a " fresh step," within this /(ule ; 
 and ft <lefendant who apiiears instead, of applying to strike out the irregidarity, 
 tannot insist \ipon it : Midvk<-ni v. Durrks, 51 L. T. N. H. 421( ; .53 L. .T. t^. li. 
 m-, Ue JJeibm, 3(i W. R. 007, in note to Hii/e 341. 
 
 See also Fri/ v. JAwre, 23 Q. B. D. 375, and Boyle v. Saekfr, 3!) Ch. D. 240, in 
 
 notes to Riik 271, p. 302. 
 
 2. Amendments. 
 
 444. The Court or a Judge may at any time, and on Amona- 
 «uch terms as to costs or otherwise as to the Court ordefectBor 
 Judge may seem just, amend any defect or error in any «''«"• 
 proceedings ; and all such amendments may be made as 
 may be necessary for [the advancement of justice] , deter- 
 mining the real question or issue raised by or depending 
 on the proceedings, [and best calculated to secure the 
 giving of judgment according to the very right and justice 
 of the case.] J. A. Rules. 10, 474. 
 
 The words in brackets arc not in the Eng. R. April 1880, R. 44 (see 188,% 
 K. 309), and are taken substantially from R. S. O. 1877, c. 49, an. 7, 8; lb. 
 
 «■ 50, g. 270. 
 
 The first clause of this Rule differs from the Eng. R. of 1883. 
 
 This Rule is in regard to amendment of defects and errors generally, and is 
 supplemental to Rule 423 respecting amendment of plearlings and Rule 780 
 respecting clerical errors and slips. 
 
 ii 
 
^■)-i 
 
 460 
 
 MISCKLIjANKOUS PIIOCEKDINGS. 
 
 Bu}e444. 
 
 Amend- 
 ment of 
 Writ. 
 
 •^i^ 
 
 Where an order hiul Iwen made for Hale of i)roi)erty an described in a claim, 
 but ftfterwarflw it was disc(jver(jd to liave l)een iiiis-deHcriljcd, the claim whr 
 amended and the order |)<wt-dated, so as to apjKmr to have been made after the 
 amendment : Winkhii v. Winkici/, 44 L. T. N. S. 572 ; 29 W. R. (i28. In 
 ^feneral, however, an order ought not to bear a fictitious date : Ashlei/ v. Tuiilur 
 10 Vh O. 773. 
 
 On a m()ti(m for prohibition to a Divi.sion Court the affidavit ard notice (if 
 motion were not styh'd in any Division of the High Court, but the d.'fect was 
 held to be amendablt^ under this Rule ; Re (Hmxtead v. ErriiKjUm, 11 P, R. 
 3GG. 
 
 In Rr Siii'ir/, 12 P. R. 312, 435, ()35, proceedings by hnbmx ror/<H.s to obtain 
 the cust(Kly of children were supi>lemented, by the a|>plicant lieing directed t<i 
 file a )>etition under R. S. (). 1877, c. 132 ; see mipra p. 03. 
 
 If tlie Court comes to the conclusion that an amendment is " nece.ssary f(ir 
 the ai'vancement of justice, the prevention and redress of fraud, tlie det"rininu- 
 tion of the right: and interests of the res])ective parties, and of the real ques- 
 tions in controversy between them, and l>est calculated to securt! the giviiigof 
 judgment according to the very right and justice of the case," the griuiting or 
 refusing of the amendment ceases practically to bo a matter of discretion; 
 Pdcrkin v. MaFarlanr, 4 Out. A|)p. 45 ; (JilMaiid v. Wmhworth, 1 Ont. App, 
 H2. 
 
 An amendment made affecting a person not a l>arty was at his instance 
 rescinded : (Uuks v. L'liincron, ',) Ont. 712. 
 
 Amendments of the writ of summons were specially provided for by original 
 Rule 10, which has been omitted in the Consolidation, the i)resont Riik- covering 
 the case. 
 
 The i)laintiff will have to pay the costs of an amendment of the writ. An order 
 to amend has been held to be necessary, even though the writ has not been 
 served : per Lush, J., Anon, (iO L. T. Jour. 32 ; 1 Charl. Ch. Ca. 34 ; and this 
 decision has been followed by Mr. Dalton in Chambers : see (I'lain', (ith Oct. 
 1881, a.id App. Form 01 ; see contra under the former practice, Wurtliiii'jlim 
 V. liiiidtiin, (! P. R. (J8. 
 
 When a stat<'inent of olaiin has Ikhju delivered, an arnendmentof the indorse- 
 ment on the writ seems to be unnecessary : Lar<ie v. Limie. W. N. 1877, !W; 
 Johnnoti V. Palmer, 4 C. P. 1). 2(52 ; but see Coniibearc v. Lewin, W. N. 18H1, 31;, 
 44 L. T. N. S. 242 ; 2!) W. R. 3iH ; see also /fc Jones, Eim v. Coj; 24 W. K. 317. 
 An action may, by .amendment of the writ and statement of claim, l)e tiimefl 
 into an information without jirejudico to a pending motion in the action, the 
 necessary sanction of the Attorney-deneral l)eing obtained : Cahlivell wl'wjhain 
 llnrhour Reclumntinn Compani/, 2 Ch. D. 221. 
 
 When a writ has been amended it nuist be served in the same way as the 
 original: T/ie ('(ts.iid/ieia, 4 P. D. 188, where a new claim was introduced: 
 (iiie:<f< V. I'erri/, 12 P. R. 4(!0, where a ilaim for damages was struck out by 
 amendment ; see also /iri/an.s v. llwjhes, 1 1 L. R. Ir. (J2. 
 
 Irregularities in a writ of summons may bo amended either on motion by the 
 l)laintiff, or leave to amend may be granted where the defendant moves to set 
 aside the writ. The following irregularities have lieen allowed to be amended : 
 — A writ signed by a Proctitis Clerk issued after the appointment of his succes- 
 sor : SlevriLvoi v. n'i/liidn.s, 7 P. R. 3.58 ; a writ issued without the signature of 
 tile Process Clerk : Ijihndie v. Jt(irlin</, 7 P. R. 355 ; a writ tested in tiie name 
 of a retired Chi> f Justice after tlie appointment of his successor bad Iwen 
 ga/.etted, but before he had taken the oath : Xelmn v. Ro;/, 3 P. R. 22l) ; a writ 
 tested in the name of a Lord Chancellor after his resignation and the ai)iHiiiit- 
 nient of his successor : I'hdKiin/s v. /u'k/ l>rreltitin, e/.c., 47 L. T. X. S. 43!l ; n 
 
 mistake in the date in the tente,an "eighty " for "eighty-two ": lIV.vwiw v. 
 
 S/al,\cr, 48 L. T. N. S. 444. Put the absence froin the Province of the Judge 
 in whose name writs are tested does not render it iinproj«r Uitentea writ in hi:'- 
 name : Brett v. Smit/i, 1 P. R. 309. 
 
AMENDMENT OF DEFECTS, ETC. 
 
 445. Where an action has been commenced in the 
 name of the wrong person as plaintiff, or where it is douht- 
 liil whether it has been oommenced in the name of the 
 light plaintiff or plaintiffs, the Court or a Judge, if satisfied 
 that it has been sc commenced through a bona fide mistake 
 and that it is necessary for the determination of the real 
 matter in dispute so to do, may order any other persons or 
 persons to be substituted or added as plaintiff or plaintiffs, 
 upon such terms as may seem just. J. A. Kule UO. 
 
 Same lis the Eng. R. 1875, (). Ki, r. 2, (18.S3, R. 124). 
 
 ActioiiH liave l)i*ii iiuulvurtfiitly l)r()iiylit by tlm wrong person, aH by ciKtui 
 iliiilni.it, iv.,t<'!i(l of trustee; by nitirtyiigor, instead of niortgagee. Tlie same 
 mistake lias been made wliere it was matter of real difficulty to say which of 
 the two ])ers()ns ought to sue : as in the case of contracts uuide by agents, as to 
 whicli it is sometimes a (luestion of much nicety to dt^tenuine who ought to 
 sue. Previous to Thv Admiuixfrotidii itf Justice Art, 1873, in Ontario, and until 
 the .liulicivliuv Acts in Kngland, though the Common Law Courts liad the 
 laiyest powers of adding parties, or amending misdescriptions of parties, they 
 had 110 power to substitute one j)laintiff for another, such as this iiiile confers : 
 see Ik (.■'•;*(/;•(■ v. lioijonliin, L. R. 7 C. 1'. 40!). 
 
 An application under this Rule can only 1k' nia(hi by a i)laintiff : C/oircn v. 
 Ilillitird, 4 Ci). 1). 413, and is restricted to casi's where a ImntijUle mistake has 
 (icciirri'd, which has l)een discovju-ed after action brought ; as when* a new 
 [lartiuT was brought into a firm before the dealing in (piestion ; but it is not 
 intended to confer upon the Judge unlimited discretion to re-model the jiro- 
 cewiiuffs ; jirr Mellor, .T., in Tiirt/naitd v. F'vron, 4 C^. }{. j). at p. 282. In 
 Smith V. Ilnseltiiu; W. N. 1875, 250; 1 Cliarl. Cli. Ca. 5(), Huddlestone, 15., 
 said: "You I>ave to satisfy me of two things ; 1st, that there h.as been a Imna 
 .N'/p mistake iu the issue of the w*^' and 2nd, that it is a necessary change." 
 See also Vluwes v. llilliard, 4 Ch. D. 413. 
 
 In an action by assig>u-es of in.solvents, the Judge at the trial held tliat the 
 daiin sued for did not pass, under the circumstances, to the assignees. The 
 defendants having been given time? during tlu^ sittings to ascertain whether 
 tiiey had any defence to a suit by the insolvents, the latter went a<^lded under 
 this 7fi(/( as plaintiffs, and judgment was given in their favour, but without 
 costs ; Wcudminl t. Ski'liU, 32 C. P. 282. See KiiuUii v. Carle, 17 Ch. ]). 
 Kii). 
 
 In an action u restrain the violation of a covenant and for damagen, the 
 liiaintiff was advised, after action commenced, that there was something in her 
 title which might act as a ]M'rsonal bar to her obtaining relief. An amendment 
 l>y making another |>erson a co-phiintiff who was also entitled to the benefit 
 of the same covenant was allowe<l, the real cpiestion being the effect of the 
 covenant: AiisroHi/h v. fuller, 4 Cli. 1). .341. Where a new jdaintiff is thus 
 added, the action, as regards him, is to be deemed to have been commenced, 
 only from the date of iiis being added ; ///. See also Wnlaitt v. Lwinn, in note 
 to«i,/,. 324. 
 
 For other cases in which the Rule has been acted uikhi, see Viil de Tmrerii 
 ■\>lMte Co., (Limited), v. London Tramwaii < 'o.,( Limited), 48 L. J. C. P. 312 ; 
 flL, T. N. S. l;^;^; W. N. ]87!t, 40, and Mrrnuitile River Ptafe ('„. v. LfWir, 
 ».X. 1«7(), 1()4; 2 Gharl. Ch. Ca. 23; l-lnrkhitm rnion v. /irooLt, 2(5 W. R. 
 
 The h.iid fide mistake, which must be shewn, may be one of law : Jiitckett v. 
 'm-er, (> Ch. D. 82 ; Mmon v. J/an-iii, 11 Ch. D. 97. 
 
 Hule 3i,T ( h) is to ht- reiwl into this Rn/e, so that a jdaintiff will not be added 
 or substituted unless he consents : rnrt/nand v. Feiiron, 4 t^. B. \). 280, though 
 the terms may otherwise be " su'jli as may seem just " : Tryon v. National I'nrv, 
 
 461 
 
 Rule 448. 
 
 Substitu- 
 tion and 
 addition of 
 plaintitfs. 
 
462 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 Rules 
 446-450. 
 
 Amend- 
 ment at 
 trial. 
 
 Ins., 1() Q. B. D. ()78 ; and see Rule 324 ; nor under this Rule unleHK the original 
 plaintiiT consents : Emdeii v. Carte, 17 Ch. D. l(i!). 
 
 An order will not be made on an cj: parte application : Tildesley v. II truer S 
 Ch. D. 277. 
 
 Where the present Rule is not applicable, plaintiffs may nevertlieless some- 
 times be added under Ruleii 324, and 325, supra : see notes to those Rules, and 
 Jivideii. V. Carte, and Sviith v. Ilasi'ltine, supra. 
 
 446. In case an amendment is directed or allowed to 
 be made at the trial, it shall not be necessary to draw up 
 or issue an order therefor. The amendment may be at 
 once made on the record, or a minute of the amendment 
 to be made may be entered in the book of the Eegistrar, 
 Deputy or Local Eegistrar, Clerk or Marshall, and the 
 amendment may be formally made at any time afterwards. 
 New. 
 
 3. Paper, Notices and Written Proceedings Generally. 
 
 be written 447. All PoticGS required by these Rules or the practice 
 or printed, of the Court shall be in manuscript or print, or partly in 
 [manuscript and partly in print] , unless expressly autho- 
 rized by the Court or a Judge or bv these Rules to be given 
 orally. J. A. Rule 451 ; Rules T. T. 1856, 181. 
 
 Instead of the words in brackets, the Kng. R. 1875, O. 50, r. 1 (1883, 
 R. 1003) has "writing." 
 
 A verbal notice to produce is insufficient : Provincial Ins. Co. v. Shaw, 19 
 U. C. (l B. 537. 
 
 Regula- 
 tions as to 
 printing; 
 proceed- 
 ings. 
 
 44». Proceedings, if printed, shall be printed with pica 
 type leaded, on good paper, of foolscap size. J. A. Eule 
 452. 
 
 The Eng. R. 1875, O. m, r. 2 (1883, R. 1005), is more particular in its 
 directions. 
 
 Hee Chy. G. (). (i(i, and Cossrn v. IJwklow, 2 Chy. Ch. 227, where sorvioe of 
 a bill not printed, etc., in conformity with the (ien. Orders was set aside. 
 
 Paragraphs 449. Every petition, issue, special case, affidavit and 
 other proceedings of a like nature, shall be divided into 
 numbered paragraphs, and shall state concisely such 
 matters and facts as may be necessary to truly inform the 
 Court. See J. A. Rule 128, part. 
 
 Crown fo 450. All rolls and records shall be upon parchment, or 
 prescribe paper, of such width and length as the Registrars shall 
 ilng*t^h^o'f'^ prescribe by written notice, to be put up in some con- 
 paper, etc. gpicuous placc in their respective offices and in the offices 
 of the several Deputy Clerks of the Crown, and none of 
 
COPIES OF PAPERS — FORMS. 
 
 46a 
 
 these officers shall be bound to receive any roll or record ^J^^J. 
 not made up in conformity to such notice, and such rolls 
 and records shall not exceed, when folded, 14 inches in 
 length and 4 inches in breadth, written upon at least a 
 sheet of paper and folded accordingly. Rules T. T. 1856, 
 147. 
 
 See as to pleadings, Bule 395 ; aa to mode of printing to be adopted, 
 Rul^ 448. 
 
 451* In all proceedings in a cause or matter, except short style 
 pleadings, petitions in the nature of pleadings, judgments ° 
 and decretal orders, the following short style of cause . 
 shall be sufficient : 
 
 " Between John Smith and others, — Plaintiffs, 
 
 and 
 Richard Roe and others, — Defendants." 
 
 In case of proceedings which it has been the practice to 
 entitle more shortly thus : " Smith v. Hoe,'' such practice 
 is to continue. Chy. 0. 597. 
 
 In all nloadings, petitions in the nature of ^)leadings, judgments, and decretal 
 orders, tlie full style of the action or matter is to be set ont ; in tither proceed- 
 ings, inchuling affidavits, interlocutory orders, notices of trial, to prcjduce, to 
 admit, notices of motion, and of apjieal, the shortened style first given in the 
 
 Eiile may be used. 
 
 The shorter title, c.r;.. Smith v. Roe, is usually confined to apiM)intinentH for 
 settling minutes of judgments or orders. Master's warrants, notices of taxation 
 or other notices and apiK)intments not already mentioned, which are required 
 to be taken out or served in tiie progress of a cause. There is, however, no 
 authority for styling affidavits in tnis way. 
 
 452. The word folio shall mean one hundred words, a foiio is 
 Rules T. T. 1856, 167. . , ■ loowords. 
 
 4. Copies of Papers — Forms. 
 
 4»1»3. Office-copies of affidavits, and other proceedings service of 
 for service are dispensed with ; and where service is re- ccmles of 
 quired, true copies, instead of office-copies, are to be served ; a!!d othM 
 but this order is not to apply to judgments or orders of Proceed- 
 which office-copies are by the practice of the Court required pensed 
 to be served. Chy. 0. 402. ^^^ 
 
 An "office copy" of a document is a copy authenticated by the proper Office 
 officer, usually the one in whose custody the original record of the ^>r(X3eeding8 copies, 
 is aeix)sit(!d. But under Rule 4.54, Local Registrars, Deputy Registrars, and 
 Deputy Clerks of the Crown, have ixjwer to mak i office copies. Office copies 
 ■»"»'*'^"" ^'""'^ expressly required to he served in certain cases : see RulenH), 
 i^; and where according to the former practice an office copy of a decree, or 
 
464 MIS'^IiLL.ANEOUS PROCEEDINGS. 
 
 Kules order, was rt'Oiured to be served, in like caseH an office copy of the judgment, 
 
 4S4^6. or order, would seem to be necessary under the present practice, except wherH 
 a different jiractice is expressly provided. 
 
 Under the foniier Chancery practice, tlie first i)r()ceeding' in the cause served 
 upon a defendant was usually require<l to lie an office copy; i.fi., bills, or 
 decrees, or orders, served on parties added in the Master's (tltice, and orders of 
 revivor. But under the iiresent practice, it would seem sufficient to serve a 
 plain cojiy of an order adding parties upon a change of interest, instead of an 
 office copy as formerly : see Rule (523. 
 
 As to what is "a true copy": see Wulker v. NilcH, 18 (Jr. 213; Sharp \. 
 Mcllnirn, 38 Ch. 1). 427. 
 
 Office 434. Office copies of judgments to be served on persons 
 
 bo cortined made parties in the Master's office, may be certified by the 
 cierifs'.'eto. Deputy Clerk of the Crown, Deputy or Local Registrar, as 
 
 the case may require, at the place where the reference is 
 
 being prosecuted. Chy. 0. 547. 
 
 Office Office copies are copies authenticated by the jirojwr officer. In order to 
 
 copies, how enable a local officer to authenticate a judgment which has not Ix'en entered 
 
 made. in his own office, an authenticated copy must be produced to liiiu, with 
 
 wliich otliur co[)ies may be compared. It has been usiuil to mark tlieni 
 
 " Examined, " and stamp them with the seal of the officer who certifies 
 
 them. 
 
 Tlie right to certify office cojnes under this Rule has been in practice extended 
 to cases where an office copy is required to b© served on parties interested, but 
 who are not made parties : see Rule 322. 
 
 Copies of 
 docunionts 
 to be de- 
 manded in 
 writing. 
 
 Where 
 copy of 
 document 
 demanded, 
 it is to bo 
 furnished 
 within 48 
 hours. 
 
 Copies of 
 affidavits, 
 costs of 
 furuisbing. 
 
 455* A party requiring a copy of any pleading, affidavit, 
 exhibit, or document not directed to be served is to 
 make a written application for the same to the solicitor of 
 the party by whom it has been filed, or on whose behalf it 
 is to be used ; and where the party has no solicitor, then to 
 the party himself. Chy. 0. 548. 
 
 Pleadings are recpiired to l)e served on the opposite party without a demand : 
 Rid,' 4«1. 
 
 An irregularity in the ijidorsement of an affidavit is waived by demanding a 
 cojiy of it : Bcnneti v. OWIcara, 2 Chy. Ch. 1(57. 
 
 450> Where an application is made for a copy of any 
 pleading, affidavit, exhibit or document, it is to be delivered 
 within 48 hours from the time of the demand ; and any 
 further time which may elapse before the delivery is not to 
 be computed against the party demanding the same. Chy. 
 0. 549. 
 
 This Rule is imi)erative, and the Court will enforce compliance with it : 
 Totten V. Macinture, 2 Chy. Ch. 80; Jiurrows v. Hainey, 2 Cliv. Ch. 186. 
 Formerly the costs of furnishing copies were part of the costs of the cause, or 
 application, and jiayment of the costs of the copies could not be required us a 
 condition of furnishing them. Whether the liulex are intended to make any 
 ciiange in this resjKict is not very clear : see Rule 457. 
 
 In practice, the costs of furnishing copies of affidavits on a motion have l)een 
 regarded as part of the costs of the motion ; and it has not been usual to 
 demand payment for cojiies so demanded, as a condition of furnishing them. 
 
 461. 
 

 SERVICE OF PAPERS. 
 
 465 
 
 457. As to taking copies of docuinents in possession of ^" 
 anotlier party, or extracts therefrom, under Rules of Court c^pigg ^, 
 or any special order, the party entitled to take the copy or document* 
 extract is to pay the solicitor of the party producing the 8k)n°or'" 
 document for such copy or extract as he may, by writing, party."' 
 require, at the rate of 1.0 cents per folio ; and if the 
 solicitor of the party producing the document refuses or 
 neglects to supply the same, the solicitor requiring the 
 copy or extract is to be at liberty to make it, and the 
 solicitor for the party producing is not to be entitled to any 
 fee in respect thereof. J. ^ Rule 433. 
 
 The Eng. R. of Aup. 12, 1875, "Costs," R. 16 (1883, R. 1002, r. 18), gives 
 fouriHjnce per folio ; with that exception, the two Rules are the aame. 
 
 45S. The forms contained in the Appendices hereto are Forms to 
 to be used with such variations or modifications as circum- 
 stances may require ; but any variance therefrom, not 
 being in matter of substance, shall not affect their regu- 
 larity. Rules T. T. 1856, 169 ; J. A. Rule 485. 
 
 See Eng. R. Ar)ril, 1880, R. 62. 
 
 In Twrqnand v. Fcaron, 40 L. T. N. S. at p. 545, Thesiger, L.J., said, 
 "although the forms given m the Judicature Acts are not absolutely binding, 
 they are still of assistance as illustrating the meaning of the Act." See also 
 Scott V. Creiyhton, 9 P. R. 253. 
 
 5. Service of Papers. 
 
 459. Unless otherwise provided by Statute or Rule of Pi^ftdings 
 Court, pleadings and no'-'ces required to be served in anybesenre^ 
 action, whether in the Supreme Court of Judicature or county. 
 County Courts, may be served in any County. R. S. 0. 
 
 1877, c. 50, 8. 59. 
 
 460. Admissions and acceptances of the service of an solicitor's 
 order, notice of motion or other paper, upon the opposite Seed^uot"* 
 solicitor, need not be verified by affidavit. Chy. 0. 48. be verified. 
 
 See Rules 252, 7l4, as to acceptance of service of writs of summons. 
 
 Under Rule. 704, acceptances of service of writs of summons, and undertakings 
 to apiMjar, are rw|uirea to be verified by affidavit ; but all other acceptances 
 and admissions of service may under this Rule be received and acted on, without 
 
 verification. 
 
 461. All writs, pleadings, notices, orders, appointments, country 
 warrants, and other documents, and written communica- J'o Ife '''''^" 
 tions, which do not require personal service upon the party ^"*®*' 
 
 to be affected thereby, shall be served upon his solicitor 
 J.A. 30 
 
Rule 462. 
 
 Service, 
 where 
 solicitor 
 neglects to 
 enter name 
 of arjeut. 
 
 466 MISCELLANEOUS PROCEBDINOS. 
 
 when residing in Toronto, or if his solicitor does not reside 
 in Toronto then either upon his solicitor, or, if such 
 solicitor does not reside in the county where such proceed- 
 ings are conducted then upon the agent, if any, named in 
 the " Solicitors and Agents' Book," provided for by Eule 
 204, or upon the Toronto agent of such solicitor named in the 
 " Solicitors and Agent's Book," provided for by Kule 203, 
 unless the Court, or a Judge, or a Master, before whom any 
 such proceeding is had, shall give any direction as to the 
 solicitor upon whom any such notice, appointment, war- 
 rant, or other document or written communication is to be 
 served. Where any solicitor has not caused such entry to 
 be made in either of the " Solicitors and Agents' Books," 
 provided for by Rules 203 or 204, then the posting up of a 
 copy of any such notice, appointment, warrant, or other 
 document, or written communication, for such solicitor in 
 the office in which the proceedings are being conducted, is 
 to be deemed sufficient service, unless the Court, or Judge, 
 or Master, as the case may be, directs otherwise. Chy, 0. 
 42, 43 ; R. S. 0. 1877, c. 50, s. 57 ; Rules T. T. 1856, 136, 
 137. 
 
 By Rule 203 it is imiierative unon every solicitor to apiiomt an agent in 
 Toronto and have his name entered as such agent in tlie booi<s ke])t at OsgfHKle 
 Hall ; but under Rule 204 it is entirely at the solicitor's option to have, or not 
 have, a booked ap^ent iti any county town. If a solicitor does enter an agent's 
 name in the books kept in a county town, then service can be effected on such 
 solicitor, but if he does not, then service can be effected only by serving tiie 
 solicitor himself, or his Toronto agent. Service can only Imj effected by jxjsting 
 up copies, when there is no entry of an agent in the books at either place : 
 Esseri/ v. G. T. Ri/. Co., 9 C. L. T. 413 ; 2.5 C. L. J. 507. 
 
 Service of pajjers on a solicitor as agent for another solicitor is not gixxi, 
 unless the solicitor served is the booked agent of the other, even though he has 
 acted as agent in the same suit : Rohinnon v. Robinson, 13 P. R. 51. 
 
 This Ride only applies to the service of documents, which do not require i)er- 
 sonal service. 
 
 A solicitor cannot, as agent for one princmal, serve himself as agent for 
 another principal : llorntvmn v. Coulson, C P. R. 2(53 ; Ontario Bank v. Finhcr, 
 4 P. R. 22. 
 
 Until an order has been made and served, changing the solicitor of any 
 party to an action, or authorizing t;uch party to sue, or defend, in ])erson, 
 service on the solicitor originally named is sufncient, even though siich solicitor 
 have ceased to act for such party : Wrioht v. Kirui, 9 Beav. Kil ; and see 
 Newton v. Thompunn, 1(5 Jur. 1008; De la Pole v. Dick, 29 Ch. 1). 351; 52 
 L. T. N. S. 457. Where a solicitor has absajnded, a notice of motion left at his 
 unoccupiec' place of business was held projierly served : JVewton v. ThMiipmn, 
 22 L. J. Chy. 10 ; and see Re Templrman, 20 Beav. 574 ; Re WiKfuuM, 1(5 Beav. 
 3.57 ; Re Catlin, 18 Beav. 508 ; Re Dufaiir, 16 Beav. 1 ; Re Thomimm, 20 Beav. 
 545 ; Wilmn v. Eimnett, 19 Beav. 232 ; A> parte Belton, 25 Beav. 3(58 ; Bt 
 Walton, 4 K. & J. 78. 
 
 -yl-Cc « ' conse- 463. Where a party sues or defends in person, and no 
 
 , /3 2 omissfou of address for service of such party is written or printed pur- 
 
 Service of 
 solicitor on 
 record, 
 good, 
 though he 
 have ceased 
 to act. 
 
of any 
 l)erwm, 
 solicitor 
 
 :<51 ; M 
 .ft at his 
 
 lO Bi-av. 
 20 Bi'av. 
 
 3(W; ^'' 
 
 CHANGE OF SOLICITOR. 
 
 467 
 
 •;/ 
 
 Buant to the directions of Rules 238 to 240, or where a^"^***'- 
 party has ceased to have a solicitor, all writs, notices, ulentr*^ 
 orders, appointments, warrants, and other documents, ^> * <^ ,-^ , 
 proceedings, and written communications, not requiring/^ #^.*<»^o /I 
 personal service upon the party to be affected thereby, / ^^y^ , ^^y 
 shall, unless the Court otherwise directs, be deemed to^' • ^^//«^ 
 be sufficiently served upon such party, by posting up a> J^J^ fif^^«^/ ' 
 copy in the office in which the proceedings are being 
 conducted. But if an address for service is written or 
 printed as aforesaid, then all such writs, notices, orders, 
 warrants and other documents, proceedings, and written 
 communications, shall be deemed sufficiently served upon 
 such party if left for him at such address for service. 
 Chy. 0. 45. 
 
 The reference to Rulen 238 to 240 is I'lroneous ; the Rules intended are Rules 
 240 to 242. 
 
 The omission of a defendant's address, or atldress for service when neces- 
 sary, in an appearance by a defendant in i)erson, is exi)ressly provided for 
 
 by Rule 285. 
 
 Proceedintfs whereby the liberty of the person is intended to l)e affected ; 
 cij. nrftceediiigs ti|K)n which to found an a|i])lication for an attachment, aiti 
 usually r('(iuired to l)e i)erMonally Kervi-d on tlie party, even though he have 
 
 amK'avcd, or sued, by a solicitor, 
 
 of documents are, however, an exception to this rule 
 
 \pj)licati()ns to commit for non-imxluction 
 ■ " ■ ' .see Rule t)21. 
 
 4<>S* A party suing or defending by a solicitor shall not change of 
 be at liberty to change his solicitor in any action or matter ^°^'*"*"'' 
 without an order of the Court for that purpose, which may 
 be obtained on pnecipe ; and until such order is obtained 
 and served, and notice thereof given to the officer with 
 whom the pleadings are filed, the former solicitor shall be 
 considered the solicitor of the party. Chy. 0. 49. Rules 
 T. T. 1856, 4. 
 
 Order to Change Solicitor. — An order to change the solicitor is necessary, Order to 
 not only where the client desire.s to discharge his solicitor in an action, but also chauRe 
 where the solicitor discharges himself : see (Jriffithit v. UrifiitliK, 2 Hare 587 ; 7 solicitor^ 
 Jur. 573. Hut no order is necessary to enrble the client to api>oint a new ^??,.V.*'" 
 solicitor, in place of one deceased : Whnlltif v. WIkMc;/, 22 L. J. Chy. G32 ; Alchin "®^^* >■ 
 V. Buffalo A- L. H. R;i. Co., 2 Chy. Ch. 45. In the latter case, however, notice 
 should be given of tlie ai>ix)intment of the new solicitor to the officer with 
 whom the pleadings are filed, and also to the opixjsite party : Rule 403, Jfunt 
 V. Finchurii, 22 Q. B. D. 259 ; Braith Pr. 504, 5(» ; Bnnk of Montreal v. liar- 
 riaon, 4 V. K. 331. 
 
 Until an order to change the solicitor is obtained and se.ved, service on the 
 solicitor on the record is good, or his agent, even though the former has 
 ceased to act, and though a new one has been ajiixiinted : Daridi«m v. Lenlle, 
 Beav.104 ; Wrijiht v. Kiwi, ib., 101; Rromi v. Runiar, 2 Chy. Ch. 440; l)t 
 la Pole V. iJick, 29 Ch. D. 351 ; 52 L. T. N. S. 357. 
 
 Under the former practice at law, the attorney could not he changed by the Payment 
 client, unless his costs were first paid : Witt v. Ames, 11 W. K. 751; but in of costs not 
 
468 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 vli'*l^ 
 
 Rule 463. ('Iiancery the nilo woh othcrwiHf : Meiirrn v. Rohcrtmn, 1 Gr. 439. This jh one 
 
 a condition "f thone niattfa-.s in which the ruleH of Kiiuity, and the rul«.'s of th(! Common 
 
 precedent. Law differed, and therefore under the .Ind." Act, ». 53, h-h. 12, the rule of 
 
 Kciuity IH now to i)revail. Orders to change nolicitor will now ho grair.fd in 
 
 all the DiviHions of the High Court of Justice, without any provision as to the 
 
 payment of costs : (Jmnt v. J/oUaml, 3 C. P. D. 180. 
 
 Where tln^re is n joint retainer, an order to change the solicitor on the 
 a|>plication of some or one of the clients only, is irregular : Be Norvich and 
 Norfolk Buildimj Socktii, 22 W. K. 8fj(J ; Wnldcrhurn v. WeMerhurn, 17 IJeav 
 158. 
 
 Material 
 facts must 
 be dis- 
 oloied. 
 
 All material facts must be disclosed on the application for an order of course, 
 otherwise it will be irregular and may Ihj set aside ; r.(i., the existence of a 
 8|)ecial retainer f(jr a term of years xniexpired : lliehartis v. Hcarhormiiih Market 
 <'o., 17 Beav. 83 ; or the fact of the solicitor being mortgagee of the elient'H 
 share in the fmul in (juestion : Jcnkhin v. Brynnt, 3 Drew 70. Where, how- 
 ever, a solicitor in a))plying for an order to change a solicitor, relying en \m 
 client's statement that she was unmarried, so repre8ent«!d her, which 
 statement turned out tf) be untrue, the Court, though setting aside the order, 
 refused to direct the solicitor to pay the costs, emphatically declaring that the 
 Court never had " made a man pay costs for believing the word of a woman" : 
 Thomas v. Fialaysoa, li> W. R. 255. 
 
 Where si)ecial circumstanctis are disclosed in the prcecipe for an order of 
 course, the officer may refuse to issue the order, and may require a special 
 ap)ilication to be made. 
 
 Setting After an order of course to change the solicitor has l)een issued, if the latter 
 
 aside order, object to the order, he should not apply on prn'cipe for an order to re-apiK)int 
 
 himself, but should move on i)etition to set aside the order : Topping v. Sear- 
 
 smi, 2 H. & M. 205. 
 
 Subpcena Where the solicitor dies and his client neglects to name a new solicitor he 
 to appoint may V<e served with a mibpevnu to apix)int a new solicitor. For form of mihpmui : 
 * "ew j,,.^ Danl's Forms, 3rd ed.. No. 2129 ; Braith Pr. 2<>4. If after tlie service of 
 
 when ne- *''" ouhptv/im he still neglects to ai)point a solicitor, he is liable to attachment, 
 oessarv 'J'" Itsave may be given to prrweed without f\irther notice to such party : (lihson 
 v. In<io, 2 Phil. 402 ; Smith Pr., 7th ed., 12fi. 
 
 Api-iica- Where one of several plaintiffs desires to make an application in the action 
 
 tion by one separately from his co-plaintiffs, he must obtain an order of course, giving 
 of several hjni leave to apixiint a solicitor for that express purpose : Danl Pr., 5tn ed., 
 plaintutH. 1724 
 
 Party act- 
 ing in per- 
 son desir- 
 ing to 
 appoint a 
 solicitor. 
 
 Order to 
 change 
 when a 
 diacliarge 
 of solicitor 
 by client. 
 
 Where a party sues or defends by a solicitor, and afterwards desires to sue 
 or defend in person, an order giving him leave to do so must be obtained : 
 Danl Pr. 5th ed. 1724. But when a party sues or defends in jxirson and after- 
 wards apjwints a solicitor, no order is necessary, ih. 1725, and see Bnle 464; 
 but notice should be given to the officer with whom the pleadings are filed, and 
 also to the opixjsite |)arty. 
 
 Proceedings taken liy a new solicitor without an order, when one is necessary, 
 or Viy a suitor in j)erHon when he has a solicitor on the record, are irregular and 
 will be sot aside : Bcithbum v. Hwjh<'», 3 Chy. Ch. 160 ; Ycatman v. -Snow, 42 
 L. T. N. S. .502. 
 
 An order to change solicitor is prima facie a discharge of the former solicitor 
 by the client : IVebster v. Le Hunt, 9 W. R. 804. But it is not a dischargee 
 tiio solicitor by the client, where it is taken out in consequence of the prior 
 refusal of the solicitor to act : and a solicitor will be considered to have dis- 
 chargi'd himself, on the bnnkru])tcy of himself, or the firm of which he is a 
 partner: Re Moss, L. R. 2 Etp 345 ; or by being arrested or detained in custody : 
 Be Williams, 3 D. F. & J. 104 ; 28 Beav. 405 ; Scott v. Fleminn, 9 Jur. 1085; 
 l)ut not merely by Ijeing in embarrassed circumstances : Re Smith, 9 W. K. 
 390. So also a firm of solicitors will be deemed to have discharged the client, 
 where the firm is dissolved ; and no arrangement can he made by the solicitors 
 for the transfer of the client's business to one of their number without ni» 
 
SOLICITOR 8 lilEN. 
 
 469 
 
 coHHOiit ainoiuitiiip to a new retainer : Cholmondeley v. Cliiitmi, 19 Vch. 201 ; 
 UrilfUhn V. (Ii-illilh.i, 2 Ham 5S7 ; Slater v. Stoddard, P. R. 2i)i» ; Alvhin v. 
 «H//;/V(» .(• A. //. Rli. Co., 2 Chy. Cli. 45. 
 
 Where iiny new party in brought into an notion by owler U) continue procetid- 
 m^*, l)y reason of the cleath of, or transftT of interest by, any of the iiartien ; 
 such new party is not oliliged to employ the solicitor by '.vliom the cleceaswl 
 person, or transferror was represented, biit he may, without order, enn)loy a nctw 
 solicitor, but notice of such new solicitor being so employed must be given to the 
 offiwT witii whom the jjeadings are filed, and also to the f)pposite j)arty ; Daid. 
 Pr., r)tli I'd., 1725 ; Simiiinndu v. (Jnitl Juintrrii Jt//. t.'o., L. R. 3 Chy. 7i>7; but 
 the assignee of the plaintiff in a creditor's suit cannot apiH)int a new solicitor 
 except on spf«ial application : Ta/i/iin;/ v. Seiirxiiii, 2 H. & M. 20.5. 
 
 Although a solicitor may for sufficient cause, by notice to his client, termi- 
 nate the connection between them, the Court will not make an order for 
 that purpose on the rryidWr application of the solicitor: liriclcer v. Aii.sdl, 1 
 Ch. Ch. 3(i7. 
 
 Where the solicitor is changed hy the client, tln! original solicitor is still 
 entitled to a lien on any fuiul recovt 'vd in the cause, and is entitled to be 
 p.vid his costs, next after the costs of i'\o solicitor by whom the suit is con- 
 cluded : Clnrk- v. J'Jccfis, 3 Chy. Ch. 324. 
 
 Where a solicitor is discharged by the dissolution of a firm of which he 
 is a nienilx'r, he is not at lilierty to act for the op))osite ivarty : CholvurtuUiey 
 V. t'lintiiii, 1!( Ves. 201 ; but when he is discharged by his client lie cannot 
 lie restrained from acting for tiie opposite party, nor the latter from employing 
 him; Litllr V. l\in',i«H-imd,i-l'iirktiild (Wicrii /'«., 20 Ch. I). 733 ; 47 L.T.N.S. 
 323; 52 L. J. Ciiy. (id; but the solicitor may l)e restrained by injunction 
 from divulging the stnirets of his fonner client to the o|)posite party, either 
 in the same transaction, or any other flowing thereout, or connect<Kl there- 
 with ; 11)., and see J)<(n'cs v. C/jiii'i/i, S Him. 202, 2(57 ; (•'i-is.scli v. feto, !( Bing. 
 1; .Inlui-sm V. Mi'rrii'lf, 2 Cr. & M. 1H3. 
 
 How far the solicitor's retainer continues after judgment is recovered in 
 the aeti'ii in wiiich he is retained to sue or defend, seems doubtful : see 79 
 L. T. .(our. 2l)tS. Service of notice of apiteal from the judgment made on the 
 respondent's solicitor on the record, was held good: I)e In Pole v. hick, 29 
 Gil. I). 351 ; .52 L. T. N. S. 4.57 ; but a ri'tainer ni a solicitor to collect a debt 
 was held not to authorize iiiui, after jiulgment recovered, to enter u|M)n inter- 
 pleiuler proceedings without further instructions : James v. Rivhmil, 20 Q. B. D. 
 IW ; -A I.. T. N. S. 278. 
 
 Llsn of Solicitor on Books and Papers.- A solicitor has a lien on the books 
 ami paiM!rs of his client, which have come to him in the course of business in 
 his* professional capacity. This lien, however, is a mere right to retain the 
 (locniiieiits until Ins costs are itaid, and cannot be actively enforced : liozon 
 V. HiiUiind, 4 My. ^ Cr. 354. In the absence of any agreement to the contrary, 
 tile lien is general, and attaches for all costs due from the client, and is not 
 cuntined to the costs incurred in the particular l)usiness in which the docu- 
 ments came into the solicitor's hands : Re Faithful, L. R. (5 Ec}. 325 ; liozon v. 
 Ri'Wind, .iii/irii : Riciinrds v. I'httel, Cr. & Ph. 82 ; Worrall v. Jdhnson, 2 
 .lac. k W. 214 ; Kx parte Sterliiir/, 1(i Ves. 257 ; Fri swell v. Kinj, 15 Sim. 191 ; 
 (Miner v. hide, 19 W. R. 313 ; Re Messenner, 3 Ch. I). 317. 
 
 The solicitor cannot acipiire any greater right of detainer, than the client had 
 himself, and the lien is tlierefore subject to the rights and equities of tho.se 
 claiming liy title paramount to that of the client : Francis v. A'wncw, 6D.M. & G. 
 108 ; Stedman v. WelJ,, 4 My. & Cr. 34() ; Clntton v. Pardon, T. & R. 304 ; Moles- 
 w,vth V. RMins, 2,T. & Lat. 358; Pell,/ v. mitlieii, 1 D. M. (i. 16 ; 7 Hare 351 ; 
 Bliinden v. Desart, 2 Dr. & W. 405; IHl v. Tai/lor, Si^im. 210; Baker v. Jlender- 
 "'",4 Sim. 27; War'nirtim v. Fd'/e, 9 Sim. .508; Re Moseli/, 15 W. R. 975; 
 >'""«.'/ v. Ku.dish, 7 Beav. 10; Stennett v. Ariupi, 2 Chy. Ch. 218; Re Union 
 Vmmtand nriek<;>., Kx parte, I'ul.brook, L. R. 4 Chy. 627; and where the 
 client would be bound to prfxluce the documents in evidence on .the demand of 
 third ])arties, the solicitor cannot refuse to iinxluce them on the ground of his 
 hen : Hope v. Liddell, 7 D. M. & (4. 331 ; 20 Boav. 438 ; Fowler v. Fmoler, 44 
 L.T.N.S.799; .50L.J. Ch.086. 
 
 Rule 468. 
 
 When 
 order un- 
 necesBary. 
 
 «> 
 
 Lien of 
 solicitor. 
 
 Solicitor 
 restrained 
 from acting 
 for oppo- 
 site party 
 when. 
 
 Lien on 
 books and 
 papers. 
 
470 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 Bal0«63. 
 
 Taking 
 fwonrity, 
 effect on 
 Hen. 
 
 Dlfferenco 
 
 between 
 
 rightoflion 
 
 oisolicitor 
 
 who IB dis- 
 
 cbarged, 
 
 and one 
 
 whodiB- 
 
 chatgea 
 
 himself. 
 
 But third uartieH whose riglitH aro acquired under the client HubHeciuent to the 
 creation of tiie lien, have no jfreater ri(()itH tlum the client iiiiiiHelf hml at the time 
 they acquired title : (liU v. <i(iinlili\l[MiT. !(»!); 2Chy. Ch. 1.35. The milicitdr, 
 however, cannot claim a lien, ap[ainHt such third parties, for coHts incurred by 
 him Hubsequently to their iic(iuirin(; tlieir rigiits : Hlundeti v. JJruart, 2 Dr. & W. 
 405. 
 
 A solicitor cannot acquire a lien on the documents of a joint stock company 
 which by statute, or the articles of ivssooiation, are required to be kept in the 
 office of the company : Jlc the, Anf/lo-Maltvur Co., 52 L. 1. N. H. 841 ; but lie may 
 acquire a lien on the bt)oks and documents of o.nompany which are not Horctiuircil 
 to ho kept in the office of the company, J/i., b\ii not for business wiiicli was ultra 
 rirfs of the company : Re HmmtrdA' Itnllmdn, 1 H. & M. A'XV A lien maybe 
 maintained notwithstanding that the dt'bt in resin-ctof which it is claimed iniiy 
 be barred by the Statute of Limitations : llr (.iirtvr. Curler v. CViWrr, 53 L. 1. 
 N. S. ((30. 
 
 A solicitor who is emjiloyed by a mortgagor fuid mortgagees to [irepnre a mort- 
 gage, after completion of the mortgage holds the title de«'(ls for the mort- 
 gagee, and cannot as against him claim any lien thereon for a debt due liy the 
 mortgagor : Kx purle Qutnn, 4i) L. T. N. S. 811. 
 
 The lien is superseded by the solicitor taking security for his costs : Cmnrll v, 
 Simpsiiv, 1(! Ves. 275, but only to the extent of the security : IIV/Asy/h v. ////"W, 7 
 D. M. & (i.288, and ceases altogether on payment, ami the solicitor cainiot then 
 retain documents tm the ground that a tliird party claims an interest in them : 
 lie Kmma Mine, A> ^jarte Turner, 24 W. K. 54. The lien may also be lost l)y the 
 solicitor assigning his bill of costs to a third party : Reenur v. hllti, 7 1'. R, 371 ; 
 and also by parting with jiossessicm of the docuiiKiiits ; but wln'rc^ on the dissolu- 
 tion of a firm of solicitors, tme of the partners took iK)ssession of documents on 
 which the firm had a lien, without the jn-nnission or consent of his Late partiiurs, 
 it was held that the lien of the firm was not thereby lost : Re Curter, Carter v. 
 Carter, .53 L. T. N. S. G30. 
 
 Although ordinarily the documents cannot \m taken out of tiie solicitor's 
 hands until the lien is satisfied, the client is nevertheless entitled to iiisiwct 
 them : Luekett v. Guru, 10 Jur. N. S. 144 ; and when? the circumstiinces are 
 pressing, an order may be made for delivery of documents in a disclir.i'ged solici- 
 tor's hands before payment of his bill, provid(id money is brought into Court 
 sufficient to satisfy his demand : Re South Kxne.n K<i. In rentment and Adranrc Co., 
 46 L. T. N. S. 280. 
 
 When a firm is changed by the introductiim of a new oartner, tiiereisnolien 
 on pa|)er8 delivered to the new firm for costs due the old firm : Re Fornhaw, Ki 
 Sim. 121. 
 
 Toronto agents, as against their principals, have a general lien for their 
 agency bills on i)ai)ers placed in their hands by their jjrincipals ; and the lien 
 is not lost even though the relationship of ))rinci))al and agent is dissolved by the 
 agent : Re Attorney, 7 P. R. 311 ; Re A. Ji. .1- C, 14 C. L. J. 142 ; Re ('r<m, 4 
 Cliy. Ch. 11. 
 
 There is an important difference in the right of lien, of a solicitor in an 
 action who discharges himself, and one who is discharged by his client. 
 
 When the solicitor discharges himself, he is bound to deliver \\\) the jianers 
 in the action to the new solicitor, uixjii the latter undertaking to hold them 
 subject to his lien for what, if anything, shall be found due on taxation of his 
 bill ; and to proceed with the cause with due diligence, and to redeliver the 
 pai>ers within ten days after he shall cease to have (xjcasion for tlieni, if the 
 lien be not sooner satisfied : Colef/rave v. Manleii, T. & R. 400 ; Hedop v. 
 Metcalf, 3 My. & Cr. 183 ; Wilmn v. Emmett, 1!) Beav. 233 ; Caw v. Martin. 
 2 Beav. 584 ; Robins v. iloldimiham, L. R. 13 Eq. 440 ; Ley v. IWoien, 1 Chy. 
 Ch. 179; Merretvether v. Mellinh, 13 Ves. 1.(51 ; Mai/ne v. Haiekrii, 3 Sw. !»3; 
 Webster v. Le Hunt, i) W. R. 804: Commerell v. Poiintoii, 1 Sw. 1. The 
 solicitor cannot in such a case require the client to undertake to ))rocet'd to a 
 taxation of his bills : Moir v. Mudie, 1 S. & S. 282. And if he refuse to deliver 
 up the pajjers to the new solicitor, on his undertaking as above mentioned, he 
 
-11 
 
 HOLICITOR S LIEN. 
 
 471 
 
 ni:w Ih! ordered to pity thttcoHtM uf an a|)i>licati()n toc(mi|M'l him tr>d()8(> : Rohim Rule i68. 
 
 V. Uidiliiuihtim, Hitprii. A Holicitor who deejineH to procwKl with an action 
 
 until his costs are paid, in effect dischargeH hinmelf : Il>., and Hee Jte Liirin, 72 
 
 L. T. .four. 3H7. And so the dissolution of the firm of solicitors engaged by 
 
 the flieiit, or the arrest or detention in cust<Kly, or bankruptcy of tlie solicitor, 
 
 works 11 discharge of the client by the solicitor: vide nu/tra. But where the 
 
 client (iieH, or his interest is transferred by assignment or otherwise, and an 
 
 order is made to continue the proceedings in the name of some new itarty who 
 
 tiimcs a iH^w solicitor, in such oases tiie solicitor i» deemed to be discliarged by 
 
 t!ie client : see Ei' Mohh, L. H. 2 Kij. 345. 
 
 When the solicitor is discharged by the client he cannot generally Ik^ ordered Discharge 
 to deliver up the papers, until his lien has been satisfied : Jir Faithful, L. R. by client. 
 <( Ki). Hi"); '•'rifflthn v. (iriffithx, 2 Hare, rtST ; li<rj)n v. IMIiUi<l, 4 My. & C'r. 
 WA, unless it aopear that there is strong ground for belinving that there 
 i^ nothing d>ie tlie solicitor : /{>■ Jicvun <1' Whittiwj, 33 Beav. 43!t. Nor is the 
 .solicitor in such a case bound even to produce the jiajH-rs for the puqioKe of the 
 cauHc, until his bill is jiaid ; l^nril v. Wormltii/hfon, Jac. .WO ; Riilfcttrii v. 
 Hiiirrhii, 1 Sw. M; Jidhinn v. (io/iliniihnm, L. K.13 Kij. 440: but see Simiiumdi^ 
 V. '.'. k. Itii. Co., L. K. 3 Chy. 7!)7 ;' Ohjord v. Turri/I, 2 1). & H. 1 ; iVchHtn- 
 V. L( Hunt', it VV. R. «04 ; Be Lialt, (I Jur. N. S. 3S7. But where the discharged 
 solicitor neglects to deliver his bill of costs within the proper time, he may be 
 ordered to deliver up the pajnTh sul)j('ct to his lien thereon : (.'oofxr v. J/iir.ion, 
 '1 V. & C. C. C. T)]'); and when the papers are urgently needed he may be 
 ordered to deliver them up on the amouiit claimed for costs being |»aid into 
 Court together with a sum to meet the costs of taxation : Hi' <iiilhtnd, 31 
 C'li. 1). 2!t(i ; 53 L. T. N. H. !»21. 
 
 .■Vnd where the action is one for a(hninistration in which the rights of thin! 
 IPiUtie.i are concerned, the solicitor, tliough discliarged by liis client, majr l)e 
 coiiiji»'lle(l to deliver up tlie pa|ierH necessary for the prosecution of the action, 
 on the usual terms : Re Jiouiihtun, llowihUni v. JiDit'ihtnn, 48 L. T. N. S. 413 ; 
 JHinni V. Ffrvncb, L. R. HChy. !»18;'2!) L. T. N. S. 7<Mi ; and see Rf dapital 
 Fir,- I'imimncc Asm., 24 Ch. I). 408 ; 4!) L. T. N. H. (i!»7 ; Hutflliiunia v. Nor- 
 imml, 54 L. T. N. S. 842. But costs incurred by an administrator in adminis- 
 tration i^'oceedingH are a charge ujjon the estate, and upon his death, the 
 administrator 'A' 'w/iM /t'j(t takes the estate subject to the charge, and cannot 
 compel the delivery up of the jiapers in the hands of tlu; solicitor until his 
 costs are paid : /Jr'UV({«o/i, .5(» L. T. N. S. 2(»5. 
 
 Lien on Fund. — A solicitor has not only a general lien on his client's pajn-rsLien on 
 for all costs due to him, but lit; lias also a jiarticular lien for the costs of fund. 
 liroceedings to recover a fund, upon the fund ri'covered, or ordered to be jiaid : 
 i(oi7i V. Church, 4 Mad. 301, and if the fund actually reaches the solicitor's 
 hand he is entithd then to retain it until his costs, not (mly of the action in 
 which the fund is recovered, but all other costs are paid, that is so far as his 
 clli-nt's interest in the fund extends : Itaviitxim v. Dmoilan, 15 (ir. 354 ; Hull 
 V. Lnnr, 1 Hare, .571 ; but his lien only extends to what is due to him in his 
 character of a solicitor : Rv (lalUmd, Sl'Cli. 1). 2!Mi ; .53 L. T. N. S. 021. 
 
 The solicitor may give notice to the opposite party not to pay the money 
 until his costs are satisfied : <'ihn\I v. SinipHon, Ki Ves. 275 ; and see SiimpKon 
 V. I'rtithcni, 5 W. R. 814. And this lien is not lost by the discharge of the 
 .solicitor by tlu^ client, or by the act of ( Jod, pending the suit ; thus where 
 the i>laiiitiff assigned his intert^st in the suit, and tlu! assignee named 
 a new solicitor, the first solicitor was hehl entitled to a lien on the fund 
 ultimately r.'covered and to payment of his costs thereout, next after those of 
 the solicitor bv whom the .suit was concluded : <'/ork v. Kcc.lfx, 3 Chy. Ch. 
 324 ; and see kcllrlt v. Kflli/, 5 Ir. Kq. R. 34 ; Rikoh v. Bollnnd, 4 My.' & Cr. 
 354; CariiKick v. Ili'ixlii, 3 1). & .1. 157 ; Rr Witdx worth, /Ihodcn v. f^midin, 34 
 Ch. I). 155 ; 55 L. T. N. S. 50(). But after the fund has been paid to the client, 
 with tlie solicitor's acquiescence, or without notice by the payer of his claim, 
 the solicitor's lien is gone, and he must look to his client alone for payment of 
 his costs : see 8() L. T. Jour. 440. 
 
 Where the solicitor declines to act he has no lien upon a fund in Court : Solicitor 
 CriH.<ir(!i V. Jii/ron, 14 Ves. 271. refusing to 
 
 act. 
 
 
 
472 
 
 Bole 468. 
 
 Lien may 
 be activuly 
 enforced. 
 
 Client (tan- 
 oot defeat 
 lien. 
 
 Effect of 
 lien on 
 rielit of 
 Het-off. 
 
 MIHCI<:MiANPK)nH PltOCIOKPINOS. 
 
 Tim lif'ti on a fund inaylx) actively onforcod : Hozon v. JMhniil, 4 My. kCt. 
 ;i'">4. The Holicitfir may obtain a Hto|> order ; llolimm v. Shiiirininil, H Houv. 
 4H(( ; uv an order for ])ayini'nt of IiIh cohIh out of any nif)ney in f!oui't puyalilc 
 to liiM client, or applicaltle to tlm payment of the contH : Warilill v. Tmumth, 
 "I I*. K. 142. Hut a Holicitor can liave no liiKJier claim ajfaiuHt a rund by virtiii' 
 of liiH li(>n than that of \\'w client; and if the client woidd not be entitled tci 
 
 {)aynient of his costs out of the fund neither will his solicitor ; although it may 
 mve been recovered by means of proceedings taken by him ; Fninrin v. Franeiii, 
 51). M. & ti. lOH; /{,■ J/iirraM, Wi/.lr v. Wa/forit, T)! L. T. N. S. 111. 
 
 The client cannot assijfu the fiuid in (!ourtso as to dttfeat the solicitor's lien, 
 even to a purchaser for value, without express notice; //(Ii/iikk v. ''(«,/«/•, 10 
 L. .)., N. S. Chy. 4HH; Yimtn v. Jnlinxton, U V. H. 2;{1. Neither can the 
 client release the adverse party from the payment of costs ordered to lie paid, 
 so as to defeat his solicitor's lien : Kx /iKrtr Jlri/tint, 1 Mad. 4!l. Hut the liwi 
 may be defeated l)y a Imiid tiil<' compiomise iiy the parties to the acti<iii : Tin 
 /io/ii', 8 r. I). 144'; 4(1 L. 'i\ N. H. 15.S ; Init'a collusive compromise will imt 
 have that effect : UnimrH (.'ostx, 312, ;U3 ; Lminl,- v. FrUcr/fl, o V. ('. H. til'K; 
 (i'riii</n v. Mdio'x, \>, U. C. K. it'A'i ; Ciniiuirn v. Si/iiiriH, 2 I*. It. Mil; hikI sci' 
 rliii'it V. Stoi'ii; !l if. C. H. 408; Kx iiiirtc Morrison, L. H. ! (^ 1!. l.'.Ii; AV 
 /iiir/r (liimm, W 11. & (,'. 2H4 ; Jlroi'-n v. CouiiiU, 2 I*. W. 20;! ; Smith v. 
 TliiiiuitKoii, C> V. R. UJ(J ; Moriian v. Holhtnd,! V. \i. 74; llarnlt v. /{nrntl, 
 18 (). L. J. 5(1; J/dll V. (i'ritHth, 5 Out. 178; Frii-ilrirli v. Frinlnili, lo 
 1'. K. :i(»8, 54(1; /lon.t V. Jiiirloii, (!0 L. T. N. S. (13(». Where a compidiiiisc is 
 effected for the purpose of deorivin)^ a pluintilf'.s solicitor of his costs, lie 
 may lie authoriiced to carry on tlu' action for the purpo.s(M)f realizing them out 
 of the defendant ; /Jnallioriirv, Huntiurii, 24 L. |{. Ir. (i. IJut wheic in a suit 
 for foreclosure the plaintiff and defendant compromised the suit, the plaintitf 
 paying' the defendant ■*!2(tO in consideration of his releasing his e(|uity nf 
 redemption, the defendant's solicitor was held to have no lieu on tlie .'>«2<KI; 
 JiriiiniKcoiiih V. Tuliii, ri- Fairltairn, 3 Chy. Ch. 71. An agent of a solicitur 
 has a lien on a fund recoverefl : Jii' Jti/fiv, 11 I*. K. 127, and payment l)y the 
 client to the agent in order to obtain his jiaoers, is a good iiayment as against 
 the )irineipal solicitor: Ec Croxx, 4(!hy. Cn. 11; but the lien of tiie agent is 
 no greater than that of the |)rincipal solicitor, and if the latter liavi^ no claim 
 u|)ou the ftmd as against his client, the agent nuiy be comjielled to jiay it 
 over MOon a sumnuiry application on behalf of thi' client ; lli Ivln-nrih, I.") 
 L. T. N. S. 578. When tln^ fun(' was iti (Jourt an ordei' was made for paNnicnt 
 to the agent of tin; amount of his lien thereout : Ii<' Ri/aii, 11 P. K, 127. 
 
 Where money is standing to the sei)arate account of the jiarty to a canwo, hi' 
 may apjily for payment out by a new solicitor, without an order changing tlic 
 solicitor :" Wail <H lor)' v. Tiiillor, 17 L. -\ . Chy. 384. But wiiere the new .■snlicMtdr 
 delivered the cheque to the clicmt liefore tiie lien of the former solicitor was 
 satisfied, he was ordered to pay him the amoinit of his lien : Mel'lwtkr v. 
 liliK., ir> C. L. J. 102. 
 
 Effect of Lien on right of set-off between parties.- No set-<iflF of d.iinages iir 
 costs between the parties is to Ix) allowed to the ]irejudice of the solicitor's lien 
 for costs in the particular action against which the set-oif is sought ; but costs 
 of interlocutory proceedings may be sot-otf ; see Eiilr. 1200 note. P.ut this A'«(> 
 is held to apjily only to tlus set-off of damages and costs in separate actions ; 
 see notes to Rulv 12(W ; where that is nought, the sot-off is not to be allowed t<i 
 the prejudice of the solicitor's lien : Wdili v. McArtlntr, 4Chy. Ch. (13; Eil n-nnh 
 V. Iluiic, 14 CJ. B. D. 922 ; 53 L. T. N. S. (>!»; Cuthhi'rl v. Coiiiinirri,,/ Tr<nrlkr.i 
 Axxor., 7 P. R. 2.55; and see Hoxx v. McLaii, 7 V. R. <t7; Wrnhll v. Tmmdh, 
 8 P..R. 142 ; liarkrr v. Ili-.mniim, 5 1^. B. D, (iOlt ; Ri- Harru/il, Wilde v. Wnlfnnl, 
 48 L. T. N. S. 352 ; 51 L. T. N. B. 441; but see Wihon v. Swif-er, 1 (Jhy. Ch. 
 75, KM). But a set-off of damages and costs payable in the sanici action, will 
 orilinarily be allowed without regard to the solicitor's lien : I'rinijle v. (ihnnj, 10 
 Ch. \). ()7(i ; 40 L. T. N. H. 512; Cameron v. CanitMl, 12 U. C. C^. JJ. loll; 
 yiauiij v. lloliHon, 8 P. R. 253 ; Briijluim v. Smith, 17 Cr. 512. 
 
 Where a sjiecial lien was given by one of the parties to his solicitor, the right 
 of set-off to the extent of the special lien thus created was held to lie defeated t 
 
m 
 
 SKUVICK OF PAI'KKS. 
 
 478 
 
 JtiM V. Mc/jiiii, 7 I'. H. !>7. Art t(»tlut rifflit (if tliKtii.xiitK otHccr to .Mct-dff cimtH : Rulei 
 we ft"/fl •-'<>»'; Hii/,rr v. Ilemii>lniij)\.l H. I). ()(«). 464,465. 
 
 No Lien on Estate recovered. In OiitHiin ;i Milic^itnr in not xi.titlcd to any N<> liui> "n 
 Ijiii (111 nil cstiift' ri'i'iivcn'd thriniffh IiIn itiNtriiiiiciitalitv : Shmr v. Nmh', (i <'Htat(> rt'- 
 11. \..V. ;".H1 : Imt mr MiTjun v. Ih<ll<tiiil, ' V. II. 74. lii Krii^liuid Mine.. -JW k ""^"'■i'''' 
 24 Vict. call. \'1~, Mfc. 2H (Imp.), he lius iv lini mi all |ir(i|ifrt.v rrcdvcrt-d liy liiiii 
 fur IiIh client. 
 
 \Mici<. 
 party Iuih 
 acted III 
 poi'Hoii, and 
 luiticn 
 Kivmi by 
 HolidtDr 
 tliat lit! is 
 auMiiiri/.iiii 
 to act, Kiili- 
 HuqiU'ilt 
 proci't^l- 
 iii(,'M to be 
 Korvoil Mil 
 Kolicilor. 
 
 401. Ill all (tasos where a plaintiff has sued out a writ in 
 person, or a dofondant has appeared in person, and either 
 party by a solicitor j^ives notice in writinfj; to the opposite 
 piirty, or the solicitor or af:;ent of such ))arty, of the soli- 
 citor l)oin<;; authorized to act as solicitor for the party on 
 wliose behalf the notice is given, all pleadings, notices, 
 orders, and other proceedings, which according to the prac- 
 tice of the Court are to he delivered to, or served upon, the 
 party on whose behalf such notice is given, shall thereafter 
 be delivered to, or served upon such solicitor. Uules T. T. 
 IHrjii, \m. 
 
 In tlicCipiirt of (/'lianncry it was foritit'i'ly cMistoniary wliei'f a party, wlin liad 
 bfU'ii prcviiiiisly luitiiij,' in pi'i'siiii, dcHircd tcact liy solicitor, to olitain an order 
 iif wmi'sc aiitliori/.iii),'' liini to do h •, 
 
 Ndtwitlistandinj,' tlii.'* Rnlr, notice of motion to attaoli a defendant must. 
 iisiiiillv licsirved personally, unless some siiftieient reason is shown fordispens- 
 iiijf witii personal service ; Mumi v. I'i'rr/l, .">0 Ij. .1. fJhy. Uol ; followed liy 
 I'rcmdfoiit, .1., in Saiilli v. Miirrin, Sept. 'ilttli, 18S4. liiit notice of motion to 
 eiiuniiit for non-production, or not hrintrin),' in lutcounts, in the office of the 
 .Miisti'i', iir ("Icrk of Kecords and Writs, l{e<,'istrar or l)eputy or Jiocal Hejfis- 
 tnirs, may he served on the solicitor : sec /{iiIik o^l, .WJ. 
 
 40»1. In any action instituted hy a mortgagee or other sewkcMif 
 person having a charge on real property, for the foreclosure ill^s for 
 or sale of property, and to whicli action any judgment f,'^.''^",',''",'J"y 
 creditor of tin; mortgagor, or of the i)erson liable to the''""." «"'''•- 
 
 1 . rj r-j F I. tor in (uir- 
 
 charge.', IS a defendant, personal service on such defendant tain caHes. 
 shall not be necessary, and it shall be sutKcient to serve 
 his solicitor in the action in which the judgment has been 
 recovered, with the process of the Court, whether the same 
 be an office copy of the judgment or decretal order, or any 
 other order or notice which by order of Court may be 
 directed, and whether the same be issued by the Court or 
 by any officer thert.)f ; but the plaintiff in any such action 
 may elect to serve the judgment creditor personallv instead 
 of serving the solicitor. R. S. 0. 1877, c 40, s. 92. 
 
 It 1h a matter of mnne doubt how far a solicitor's retainer continues after 
 jiidKnient has heen recovered : see 7!> L. T. Jour. 208 : /)e fit I'n/r v. /)ir/,; 29 
 Cli. I).3,51 ; 52 L. T. N. S. 'I.')7 ; JamiK v. lUehndl, 20 q. B. D. 1(J4 ; .W L. T. 
 N. S. 27S ; hut whether the retainer continu«fs or not, this ItiiU- makes the 
 (HTvice ot the solicitor, sufficient .s(>rvice on the client for wdioin lie acted. 
 
 It 
 
 
 %1 
 
474 
 
 MISCELLANEOUS PROCEEDINOS. 
 
 4A?M8. 466. It shall not be necessary to the regular service 
 
 onginai or ^^ »" Order, that the original shall be showu, except in cases 
 need not be of arrest or attachment. Rules T. T. 1856, 134. 
 
 shown ex- 
 cept in Unless it in demanded, it is not necessary that the original order to examine 
 attach- "■ judgment debtor should be shown to him when serving him with a copy of it, 
 iiient '" order to fouiid an application for a m. xu., in the event of his disobeying it • 
 Iniperiul liani : Dickey, 8 I'. R. 24(>. 
 
 Service of 
 notice of 
 motion in 
 Cliambors 
 may be dis- 
 pensed 
 with. Or 
 substituted 
 -service or- 
 dered. 
 
 467. Where it appears, upon the hearing of any matter, 
 that by reason of absence, or for 'tny other sufficient cause, 
 tlio service of notice of the application, or of the appoint- 
 ment, cannot be made, or ought to be dispensed with, such 
 service may be dispensed with, or any substituted service or 
 notice, by advertisement, or otherwise, may be ordered. 
 Chy. 0. 199. 
 
 Formerly in iicti(ms, after service of the writ, and the time for ai)i)parance 
 had ela|).sed and no api)earance entered, a notice of motion or appointment 
 might be served on any non-appearing defendajit by jujsting u]) a copy in the 
 office whence the writ issued, under original Rule 131 : Diimonil v. Cnift, .3 Ch. 
 D. .512 ; but that Rule has not been embodied in this Consolidation; see Riilcx 
 4(il, 402, whicli appear only t(j ajjply to cases where tl'.e defendant lias 
 ap|>eare(l. 
 
 But wliere the notice of motion required to be served is the first ijriweuding, 
 or personal service is necessary on a i)arty who has appeared but cannot be 
 found, tlien this Rule would seem to apply and to authorize tiie allowance of sub- 
 stitutional s(irvice, or dispensing witli service altogether. For c;ises in wliicii 
 applications of this kind iiave been made, see xuiira pp. 2rt!), 302. 
 
 Where it was not shewn that defendant could not lie served, the Court 
 refused under this Rule to dispense with service of notice of motion for judg- 
 ment for default of defence : Dominion Hunk v. Dodilridije, 12 P. K. Km. The 
 fact that defendant hiul been i)erst)nally served with the writ and iiad not 
 apjieared was held not to be " sufficient cause " within tiiis Rrlv : lit. 
 
 See Re Jitickhoitse v. Brinht, 13 P. R. 117. 
 
 6. Transmission of Papehs. 
 
 On receiv- 
 ing notice, 
 Deputy 
 Clerks to 
 transmit 
 record to 
 Toronto, 
 sealed up, 
 etc. Failure 
 to be aeon- 
 tempt. 
 
 46^. Every Deputy Clerk of the Crown, Deputy or 
 Local Registrar, shall, within 24 hours after notice in writ- 
 ing delivered to him in his office, for that purpose, and pay- 
 ment of the necessary postage enclose, seal up, and trans- 
 mit by post 10 the office of the proper Division at Toronto, 
 addressed to the Registrar thereof, any record in his custody 
 mentioned in the notice, together with all exhibits tiled at 
 the trial, and in default thereof he may be adjudged guilty 
 of a contempt of Court, and be dealt with in the discretion of 
 the Court accordingly ; and if, after such notice, the record 
 is not in Court at the time of making any motion requiring 
 a reference thereto, the party moving may, on liling an affi- 
 davit of the service of notice, and that the record, on search, 
 
 471. 
 
 nients ar 
 I'n'e bee 
 which th( 
 
 ik^. 
 
TRANSMISSION OP PAPERS — TIME. 
 
 475 
 
 has not been found in the said Registrar's office, be allowed |^H^«" 
 by the Court to make the motion without the production of 
 such record. R. S. 0. 1877, c. 60, s. 279. 
 
 460. Where pleadings or other documents, filed with 
 an officer of the Court, are required by any other officer, 
 the officer with whom the pleadings or other documents are 
 filed, is, upon production of a request signed by the officer 
 requiring the pleadings or other documents, that the same 
 are required for some proceeding before him, to transmit 
 the pleadings or other documents upon payment of postage 
 or express charges and return. See Chy. 0. 542, 544. 
 
 Tliis liii/i' is jft'iifral in its terms, and appears t<i ai)ply to all clf)cnni(mts, 
 wliether Sled witii an officer in the action, in which their pr<xluction is required, 
 or in some other action. 
 
 Fonnerly wiiere the fiocunients in s.nno other canse were required to be 
 imxliiced, an order was considered necessary. When a party in his affidavit on 
 imxluction referred to clociiinents produced l)y him, and in the custody of a 
 Ueputy Registrar in another s\iit, an order was made ex jutrtc for their 
 pruckiction : (iiiincr v. Boi/lc, 2 ( 'hy. Cli. 27!* ; but see Hmtuijin v. White, (> P. R. 
 143. Oil a motion to produce documents in another cause at the trial, i t was n><!es- 
 sary to show that the original documents were required, and that the producticm 
 of office copies would not be sufficient : dhnilirirk v. Thoiapiinn, 2 Chy. Cli. .38!) ; 
 Jiirriity. Wliitf, 8 Ves. .313; Attormn-dinrral v. Itaii, (! Beav. 3.3.5; Aiioih, 13 
 Beav. 42(); and ordinarily, an ai)plication for the order was recpiired to be on 
 notice: Lnudi v. Danliii, (I \V. R. 7<>5. But under this Rule it docs not apiiear 
 to be necessary to obtain any order. 
 
 Transmis- 
 sion of 
 documents 
 from one 
 officer of 
 the Court 
 to another. 
 
 Production 
 of docu- 
 nibiits in 
 other 
 
 causes may 
 be orderetl. 
 
 Proof re- 
 quired that 
 production 
 of originals 
 is neces- 
 sary. 
 
 470. Documents shall be transmitted by post or express, oocu- 
 and not otherwise, and with the documents shall be trans- trails-' "'^ 
 mitted the necessary postage or express charges for the"""*''"' 
 return of the same, unless they are to be delivered by one 
 
 officer to another in the same town, when they shall be 
 transmitted by delivering the same to the officer requiring 
 them, or his clerk. See Chy. 0. ,^43, 544. Rules T. T. 
 1856, 148. 
 
 471. As soon as the purpose for which any such docu- Docunionta 
 ments are required is completed, the officer to whom they umTed^ 
 I've been sent is to re-transmit tlieni to the office from 
 
 which they were sent. Chy. 0. 546. 
 
 7. T 
 
 IMK. 
 
 472. Where by these Rules, or by any judgment or^ronti 
 wder, time for doing any act or taking any proceeding is calendar 
 limited hy months, not expressed to be lunar months, such "'°"*'"^ 
 time shall be computed by calendar months. J. A. Rnle 
 
 IB 
 
 mean 
 
 -J^ 
 
476 
 
 Bnlea 
 473-476. 
 
 Period of 
 lesH thau 
 Bix days. 
 
 "Holiday. 
 
 1 
 
 'tI 
 
 1 
 
 ^^■■iM^^^^ii^ 
 
 
 i 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 Identical with the Eng. R. 1875, O. 57, r. 1. That of 1883, K. 961, is a littlt. 
 more full. 
 
 Where a month's notice of passing^ a by-law was required, notice given (m 
 28th March for 28th April was held insiiftioient : Re Lnplante v. Pclrrliuromh, 
 4 C. L. T. 330. 
 
 4711* Where any limited time less than six days from 
 or after any date or event is appointed or allowed for doing 
 any act or taking any proceeding, holidays, as defined by 
 2V/g Interpretation Act, shall not be reckoned in the compu- 
 tation of such limited time. J. A. Rule 455. 
 
 Tlie words in hrackets do not correspond with th(! Kiig. R. 1875, O. \)", r. '1 
 (1883, II. !l(>2). Holidays are defined l)y the Interpretation Act (R. .S. 0. e. 1. 
 8. 8, s-s. l(j) as follows: 
 
 " l(i. The word "holiday " shall include Sundays, New Year's Day, (i.Kid 
 Friday, Easter Monday, and Christmas Day, Dominion Day, the days 
 a|>pointed for tli(( cel<'l)ration of the birthday of Her Maje.stv and of Her Hnyal 
 Suecessors, and any day appointed by proclamation of the (TOVernor-( Jcneral dr 
 Licutenant-Ciovernor as a public iioliday or for a General Fast or Tliaiiks- 
 giving." 
 
 'I'his Rule ai)pli(.'s to the periiul for entering oases under Jiuir (li]'} : J'arrw 
 L'lir/li, 3 C. li. T. 312, to siiort notice of trial U!ider Jiitlr (Mil ; O'himwU 
 V. <yi)iniiel/, 10 P. R, 2()4, and to the cnuiimtation of the 48 hoiu's" iKiticp nf 
 tile examination of a party required to be given under J'u/e 4Ul -. Lmrldcty. 
 JIarrinutiw, 10 P. R. l.')7.' 
 
 Wiiere tiie limited period is not /exu than six days, iiolid^ys arc ooiiiitHl: 
 Ex /xirti- Viwji, 4 Ch. D. 704; Corniuli v. M(tnnin<i, 18 C. L. .1, 141), exoent 
 when the last (lay is a holiday when, by Rule 47t», it is n(jt to h<. rcikoiiwl : 
 Tu'/lor V. ./o,ir.s, 4'r> L. J. C. P.' 110. 
 
 As to how far the Court regards a fi'action of a day : see Jlro i( rid; v. limdch, 
 12 I'. R. 0(11. 
 
 commitea 474. In all case.s in which any particular n amber of 
 days not expressed to be clear days, is prescribed by the 
 Itules or practice of the Court, the same shall be reckoned 
 exclusively of the first day, and inclusively of the last day. 
 J. A. Kule 45G. 
 
 Same as English Rule No. 174. of Hilary Term, 18,")3. 
 
 When tile expression "clear days" isnotused,daysare"eIear'"whciit'Xiir('sswi 
 to lie "at least " a certain number of days : see Rule 47") and R<ii. v. ShrnfiMrr 
 JuKticex,'^ A. &. K. 173; Fisher Dig<>st', p. 8323; WehMer v. /.r.v.v, 3 ('. L. T. 
 504 ; Kumiihr v. Murx, in note to /{I'/e 800. 
 
 cu-r days. 471%, In all cases expressed to be clear days, or where 
 the term " at least" is added, both days shall bo excluded. 
 App. 0. (50. 
 
 Hee Luvelacc v. lldrriwiton, in note to Rule 473. 
 
 Where last 476* Where the time for doing any act or taking any 
 day. ' ' proceeding expires on a Sunday, or other day on which the 
 offices are closed, and by reason thereof such act or pro- 
 ceeding cannot be »lone or taken on that dav. such act or 
 
TIME. 
 
 477 
 
 proceeding shall, so far as regards the time of doing or^i^^^ 
 taking the same, be held to be duly done or taken on the 
 next flay on which the offices are open. J. A. Rule 457. 
 
 Identical with the Eng. R. 1875, O. 57, r. 3 (1883, R. 963). 
 
 ThiH Rule dons not apjUy to extend the time for regiKtration of a chattel 
 mortgiige >iuder the Htatute, R. S. O. 1887, c. 125 : McLran v. Pinkcrton, 7 Ont. 
 App. 49() ; nor to extend the time fixed by a Statute of Limitations, and there- 
 fore, in an action on a promisaory note, where the limit of time under sucli a 
 Htatute e.\i)ired on Sunday, and tlie writ was not issued till Monday, tlie bar of 
 tiie statute was held to apply : Morrin v. Richards, 45 L. T. N. S. 210. 
 
 But it is considered by the officers of the various Divisions at Tonmto that 
 where tiie year within which a writ of execution is to be renewed under Rule 
 WM expires on a Sunday, the writ may Ix^ renewed on the following day, as the 
 limit of a year is one imposed by the Rules, and not by a statute. 
 
 Where the time for appealing from Chamliers expires on a holiday, the 
 motion may be made the next day : TayUjr v. Jones, 45 L. J. C. P. 110. 
 
 Notice of motion for a dies mm is not bad : Re Coultem, JImnlin;/ v. Elliott, 34 
 Cli. I). 22, over-ruling iMvulmry v. Shnttleworth, 1 Kx. D. 53 : see Dvykiu v. 
 (hlcman, 3() L. T. N. S. 195 ; 25 W. R. 294 ; and Rules 442 and 479. 
 
 477. The day on which an order that the plaintiff do computa- 
 give security for costs is served, and the time thenceforward period of 
 until and including the day on which the security is given, ceedingB.'" 
 i8 not to he reckoned in the computation of time allowed 
 to a defendant to appear or deliver a defence. Chy. 0. 409. 
 
 47M. The time for delivering or amending any pleading ^marge- 
 raay be enlarged bv consent in writing, without application tinwby 
 to the Court or a Judge. J. A. Rule 458. , ' "°'''*"'- 
 
 Identical with the Eng. R. April, 1880, R. 42. 
 
 479. Unless the Court or Judge gives special leave to Jwo clear 
 the contrary, there must be at least two clear days between notuse. 
 the service of a notice of motion or petition and the day 
 for^hearing the motion or petition ; and in the computation 
 of such two clear days, Sundays, and days on which the 
 offices are closed are not to be reckoned. Chy. 0. 264. 
 J. A. Rule 407. 
 
 •See Eng. U. 1870, O. 53, r. 4(1883, R. 700). 
 
 For the days on which the offices are closed : see Rule 7. 
 
 Motions for judf,nnent are held to lx> within this JFiw^f! : Parsons v. Hiirris, 
 fi Cliy. I). (194; Pmrce v. Sfuekett, W. N. 1870, 109; Martins v. Birney, 10 
 I*. R. 308, and note to Rule 748. 
 
 When! a motion is made by leave of the Court or a Judge the notice should 
 »(> state, otinTwise it is irregular : Hill v. Rimell, 8 Sim. 032. Tlie Court 
 should also he infonned of tiie fact on the i-eturnof the motion; but the Court 
 j!*' "• iliseretion to disregard the irregularity: Dawson v. liieson, 22 Ch. D. 
 ' ., } n'ier Rule 442 affidavits were aUowed to 1k! read, though not .served 
 "ntil afK^r the notice of motion : Re Wymfleston Hositital, 78 L. T. .Tour. 282. 
 p' *''''re, without leave, a motion is made returnal)le on a day on which the 
 l-uurt dws not sit : Armstrmui v. Cayleii, 13 Or. 558; or in vacation: Maullin 
 V. Room, ;m W. U. .'592; 55 L. T. N. S. 121 ; 55 L. J. Q. B. 377 ; or the notice is 
 
478 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 Rule 479. too short, it is irregular : Daulmey v. Shuttleworth, 1 Ex. D. 53 ; Deykin v. 
 Coleman, 25 VV. R. 2t)4 ; but the Court may disregard the irregularity ; set- 
 WilliumH V. />« /toiiirille, 17 Q. B. D. 180; Forrest v. Davies, 26 W. K. 534, and 
 Re Coulton, 34 Ch. D. 22. 
 
 Objection to a notice as lieing short was considered waived by appearing on the 
 motion in Re McRue, Forxterx. JJiivie.i, 25 Ch. D. 1!) ; and by ol)taining an 
 enlargement and demanding affidavits in Re Farlhujer <{.• Morrisljitni, !) 
 C. L. T. 10!». 
 
 Where notice of motion has not been given in sufficient time owing to atomi 
 Ji<le mistake, the Court may, in its discretion, allow tlie party in default to show 
 the reason of the mistake by affidavit, and allow the motion to lie made im ii 
 later day : Smith v. tirimcksmen, Ins. Co., 32 W. R. 1K4. 
 
 Where a defendant has not appeared to the writ the jKisting u]) of a notite 
 of motion under the original Rule 131 was formerly gixxl service witliiii this 
 Rule : Jjiivmiul v. Croft, 3 Ch. D. 512 : Morton v. Milter, ihiil. oKi ; I'drmiu v. 
 Jlwris, (i Ch. D. (){)4 ; but that Rule has not been emVwdied in the Consolidated 
 Rules, and service of a notice of motion for judgment must therefore be effected 
 l)ersonally when defendant has not ai)i)eared : see Burritt v. Mardoek, 9 1'. R. 
 191, and note to Rule 407. 
 
 Where the party who has given notice of motion fails to ajipear, tlie ])arty 
 served and ajipearing is entitled to an order for his costs : Berrii v. Exchmujc 
 Tradinn Co., HI. B. D. 77; JJenisonv. Iterlin, 11 (ir. 84. But if the notice 
 of motion is invalid, the party served not being bound to appear, is notentilled 
 to costs if he does ajipear: linubnei/ v. Shuttleworth, 1 Ex. D. .OS. In Ite 
 Coulton, /fnmlinii v. Elliott, 34 Ch. D. 22, it was held that notice for a day not 
 in the sittings is n(»t bad, |)erhaps Ijecause the parties api)eared on the niotioh; 
 and see Fisken v. Smith, 3Chy» Ch. 74. 
 
 In Williii)iiK\. T>e Boi<rill,e,\7 il.'R. D. 180, notice for a day not in the sittings 
 wasanK'udcd to insert tlie proper day, the case apjiarently having been enterd 
 by the Clerk in the list of opjKised motions for the first day of the sittings. 
 Ihe notice was held bad, but the amendment was allowed, the amount in 
 (piestion being large. In Maullin v. Roijers, lunnt, the Court thouglit it best 
 for the parties not to permit an amendment, the amount being small : see 
 34 W. R. 702. 
 
 As to when costs will be given, where the Court decides that it has no 
 jurisdiction: see lirowu v. Show, 1 Ex. I). 425; <<reat yorthern Co. v. Iiiett,2 
 g.B.D. 284; Pou-lei/ v. Whitehead, 1(> IT. C. (l B. .58i». 
 
 As to the costs of a jterson who aj)pears, though unnecessarily served and 
 merely to ask costs, and of one who ai)i)ears (/uia timet an order would be made 
 against him : see Lucas v. Fraser, i) P. R. 31!(. 
 
 Unnei Tne Judicature Aet, where an urdvr in iumIc in default of .ajipearance, 
 the fonner practice is still in foi-ce that it is still necessary to profluce an 
 affidavit of service to the Registrar before the rising of the Court; it is not 
 sufficient if it be product^ in time to draw uj) the order : Seear v. IIVW;, 25 
 Ch. D. 84 ; Jones v. Barthotomev; W. N. 1883, 205 ; Re Rosier, 49 L. T. N. S. 
 442. 
 
 A notice of m(jtion need not state under what Rule the party proiioses to 
 move : Re Barker's Estate, 10 Ch. 1). l(J5-(>. 
 
 A ])etition presented by a j)erson, not a party to the action should set out his 
 residence anct occupation : Hunter v. Mountjoy, 2 Ciiy. Ch. 90 ; (llazlmmk v. 
 Uillalt, y Beav. 492. 
 
 The petition need not be filed before the day of hearing, and a petition filed 
 Ix'fore it ha<l been served, and in the prosecutif)n of which delay lia<l ariat'n.was 
 ordered to 1x3 taken off the files for want of prosecution : Re Western hisuranee 
 Co., 6 P. R. 86. But a petition must be filed before any order made themm can 
 he issued ; but where the original is lost, or the petitioner refuses to deliver it to 
 the respondent to file, a copy may be filed instead : Smith v. Hiincml,\ 
 Sm. & (}. 137 ; Sanderson v. Walker, 1 M. & Cr. 3:,9 ; Re IMUr, 9 Jur. 419; 
 Andrews v. Walton, 1 M. & Cr. 3(50. 
 
TIJIE. 
 
 of 'one sum of §5 is sufficient : lie MilcheU, 17 Ch. D. 515 ; 45 L. T. N. S. GO, 
 
 479 
 
 RiUes 
 480-483. 
 Tender of 
 $5 costs to 
 formal re- 
 spondents. 
 
 Time for 
 service of 
 pleadings, 
 
 480. Unless otherwise specially ordered in the particu- 
 lar case, service of pleadings, notices, orders, and other 
 proceedings, shall be effected before the hour of four o'clock 
 in the afternoon ; except on Saturday, when it shall be 
 effected before the hour of two o'clock in the afternoon. 
 Service effected after four o'clock in the afternoon on any 
 week day except Saturday, shall be deemed to have been 
 effected on the following day. Service effected after two 
 o'clock on Saturday shall be deemed to have been effected 
 on the following Monday. J. A. Rule 540. 
 
 The original Rule 459 was identical with the Enfflish Rule and named six 
 o'clock as the last hour for service, instead of four o'clock. 
 
 Where service was admitted by a solicitor a few minutes after tiie hour per 
 incuriam, and was repudiated by liim as s(Km as he discovered the nature of 
 the pai)er served ujxjn him it was held not to bind : McTavixh v. Synqtson, 7 
 P. R. 145 ; Wright v. Way, 8 P. R. 328. 
 
 Service of a pai)er effected within proper hours but by leaving the paper in 
 the office of the solicitor, after he and his clerks had left for the day, is good 
 service only from tlie time when the pai>er came to the knowledge of the 
 solicitor; havies v. Hubbard, 20 C. L. J. 32; following il/cCffii/w?/!, v. I'ruv. Inn. 
 Co., 6 P. R. 101. 
 
 A specially indorsed writ is not a pleading within this Rule, and may be 
 served at any hour of the day ; Murray v. Stephenson, 9 C^. B. D. GO ; see also 
 Veale v. Aiitumatic Boiler, etc., Co., 18 Q. B. D. G31. 
 
 See Lbiyd v. Ward in note to Rule 393. 
 
 481. An attendance on a motion in Chambers, or on an Half an 
 appointment before a Master. Registrar, or other officer, for auindanee 
 half au hour next immediately following the return thereof, mons^"!? " 
 shall be deemed a sufficient attendance. Rules T. T. 1856, appoi'nt- 
 
 mment, is 
 Butllcieut. 
 
 482. On every appointment the party on whom the one ap- 
 same is served shall attend such appointment without wait- sufficient"*' 
 ing for a second, or in default thereof the officer before 
 
 whom the appointment is may proceed ex parte on the first 
 appointment. Rules T. T. 1856, 144. 
 
 483. No pleadings shall be amended or delivered in the Pleading in 
 long vacation, except [by consent or unless] directed by the ^**'* ""'■ 
 Court or a .Judge. J. A. Rule 460. 
 
 The words in brackets are not in Eng. R. 1875, O. 57, r. 4, (1883, R. J)64). 
 ii. 1 ''"' f<'nner Common Law Courts no pleadings could be delivered during 
 the long vacation : R. S. O. 1877, c. 50, s. 95. Under this Rule it can be done 
 by order, or by consent. 
 
480 
 
 Bules 
 484, 48C. 
 
 lioiig vaca- 
 tion when 
 not com- 
 putud. 
 
 Masters' 
 reports, 
 when cou- 
 flrnied. 
 
 What re- 
 ports re- 
 quire con- 
 firmation. 
 
 Motions to 
 discharge 
 orders to 
 continue 
 proceed- 
 
 UlRB. 
 
 Time for. 
 Motions to 
 add to, or 
 vary, judg- 
 ments. 
 
 Enlargo- 
 tneut or 
 abridg- 
 
 MISCELLANE0U8 PROCEEDINGS. 
 
 M 
 
 r^4, 
 
 ph 
 
 4M4. The time of the long vacation shall not be reckoned 
 
 /c 
 
 in the computation of the times appointed or allowed by 
 these Kiiles for filing, amending, or delivering any pleading, 
 or in the times allowed for the following purposes, unless 
 otherwise directed by the Court or a Judge : 
 
 ^dc 
 
 ^A**.^ 
 
 4. 
 
 Setting down demun?«i«-; /^/^^^-^t-oyt^'^j-' 
 
 Master's reports becoming absolute ; 
 
 tCoving to discharge an order under Eule 622 ; 
 
 Moving to add to, vary, or set aside a judgment by 
 '^-py parfy served therewith. J. A. Rule 461 ; Chy. 0. 408. 
 
 5. Do.u>j; any j,ct or taking any proceeding in appealing 
 to the'Jouitoi Appeal, except in County Court appeals. 
 App. 0. 67. 
 
 Fonnerly tlu) CliristniaH vacatit)n was excluded from the time allowi-d for 
 wetting down demurrers : Cliy. Ord. 408 ; and see lilake v. Buildimj (t Loan 
 Assoc, 10 P. R. 1.53 ; but under this Rule it is not. 
 
 Kasters' Reports. — In order to confirm a Master's i-eport, it must be filed as 
 directed in Rule 84, fourteen days : see Rule 848. No part of this jjeriodmust 
 fall in the hmg vacation. Where it is desired to appeal from a refwrt, the 
 notice of appeal must be served Ixjfore the report is filed, or within fourteen 
 days from its filing, including the day of filing : Rule 848. The notice of 
 appeal must be a seven days' notice and must be returnable within a calendar 
 month from the date of the rei>ort : Rule 849 ; but if the month elapse before 
 the filing, then fourteen days must still elapse from the filing, Inffore the 
 reiwrt can be confirmed. The word "roix)rt" includes certificates of Masters. 
 The api)eal is to be heard in Court : Rule 850. Fonnerly the Christmas vaca- 
 tion was excluded in the computation of the time allowed for apiJealing from a 
 report : Rlake v. liuildinij <& Luan Association, 10 P. R. 1.53 ; but this is no 
 longer the case. 
 
 Asa general rule, any report, or certificate, of the Master, which may be 
 the subject of appeal, requires confinnation before it can be acted on, or lx;come 
 absolute. 
 
 A certificate of a Master as to the insufficiency of accounts filed before him 
 requires confirmation : Foster v. Morden, 9 P. R. 70 ; but not a certificate that 
 no accounts at all have been filed. See further as to rejxjrts requiring confirma- 
 tion : Rule 848 note. 
 
 Moving to Discharge Order Under Rule 622.— Wliere an order of revivor wan 
 fonnerly issued, the practice is now to issue an order to continue the i)roceed- 
 ings. The Christmas vacation is not excluded from the time allowed forinoving 
 against an order to continue proceedings. Foiirteen days from service are 
 allowed for moving against an order to continue proceedings : Rule 624. 
 
 Moving to add to, or vary, or set aside a Judgment.— This Rule applies to 
 moti(/ns to add to, or vary, judgments, by parties served tlierewith, by direc- 
 tion of the Master, whether on being atlded as parties t<j an action under /{uleii 
 4G, 120, or merely for the purpose of binding them l)y, and enabling them to 
 attend the proceedings in the action under Rule 322. The time allowed for 
 moving against a judgment by any party as served is fourteen days from the 
 day of service : see Rules 48, 127, 322. The Christmas vacation is not excluded 
 from the time allowed for making such motions. 
 
 4S5. A Court or a Judge shall have power to enlarge or 
 abridge tlie time appointed by these Rules, or any Rules 
 
^rfTm: 
 
 TIME. 
 
 481 
 
 relating to time, or fixed by any order enlarging time, for ^^^ *>*. 
 doing any act or taking any proceeding, upon such terms tV^l! "* 
 (if any) as the justice of the case may require ; and any 
 such enlargement may be ordered although the application 
 for the same is not made until after the expiration of the 
 time appointed or allowed. J. A. Rules 462, 514. 
 
 Tdciiticiil with the Kiig. R. IH?."), O. r>7, r. «, (1SH3, H. «M;7). 
 
 See <'/•<-//( V. .SV/w«W, 2 C. P. J). 21. In \Vi//.iiis v. JM/ord, m L. T. N. S. 
 (122. Hiicoii, V.C, V('fu.>(e(l tif <'xt»'ii(l time for (Ii'livcring ii eouiitpr-claiiii. It 
 liatliiot licfii (U'livcrcd, tlinmgli tlic (;riiss neglect of the defendant's Molicitor, 
 iviid tlie ii|ii>lieiiti(in wiis nmde .six months after a decree liad iM'en obtained, 
 hut immediately after the defentiant discovered his solicitor's neglect. 
 
 In Ni'itIs v. Ikiisli'ji, .3;") L. T. X. S. 84.">, the Court said, "Parties must not 
 e.xercise the jurisdiotion of the Court and extend tinieliy mutual con.sent. We 
 do not accept such consent, hut r»'gard orders as to time as compulsory.'' The 
 time was tiien exten(h'd l>y the Court. 
 
 In lliiMiiii/s V. Hinliji, \y\ Ch. D. 734, the time for indorHement of the date 
 of Ncrvice under Knlr 'IM was extended. 
 
 In Itiiiii'i- V. Riihi'i-him, !( P.K. 7H, time for apjiealing from an Official Referee 
 in Cliaml)ers under Kiile 84(1, was extended where the time had expired through 
 ii niisa])preiiension of the iiractice. 
 
 This /?«/(■ does not enijiower the Court to allow an a|>plication as to costs, 
 which l>y Ruli' 117'*, if miwle to a Judge, nnist l)e made at the trial, to be made 
 litany later period : linker v. Onkvn, 2 (^ B. D. 171. 
 
 Where an order was nmde under Rxlf ()4(!, dismissing an action for want of 
 prosecution, unless a statement of claim should be delivered within a week, 
 and no statement was delivered in the week so limited, it was held that the 
 action was at an end, aiid that there was no jurisdiction to make an order 
 niihse(|uently extending the time for delivery of the statement cif claim : 
 Il7(/,v//r,- V. Ilnnwck; 3 (l B. 1). H3 ; and see liiuni v. Mv/.nui, « 1'. R. mi. 
 
 An order was made on the (ith of May dismissing an action for want of 
 prosecution if the statement of claim was not delivered within fourteen days, 
 and on the litth of May the |>laintiif took out a sununons returnable the next 
 day, the last of the fourteen days, for further time to deliver the statement of 
 claim. Tiie summons was, on the 2()tli, adjourned, by tiie consent of the 
 l)arties in writing indorsed thereon, till the 21st, and on the 21st a Master made 
 an order giving seven days more for delivery of the statement of claim. The 
 Court rescinded the order on the ground that there was no jurisdiction tumake 
 it, the action being at an end j)n the 20th of May : Ivim/ v. I)nvenuurL 4 
 <.i. B. I), 402. ^ . 
 
 On the 2.")th of March a Master niiule an ord(^r dismissing an action for want 
 of pro.secution, mdess an affidavit in answer to interrogatories was filed on the 
 31st. The affidavit was not filed on that day ; but on the day following 
 a summons was taken out for further time to answer the interrogatories ; it 
 was held that it was still competent to the Court or a .ludgo to eidarge the 
 time for moving to set luside or vary the order of the 2(ith of March: IhirLr 
 V. Binrnfii, 4 C. P. I). 22(1. 
 
 fhe Court of Appeal has decided that a .fudge has jurisdiction under this 
 fli'A' to enlarge the time for ajiix^aling .against an order dismissing the action 
 for want of prosecution, even after tt.e i->-der has taken effect, and the action 
 has therefore become dismissed ; and that he 1..;h also jurisdiction, when he has 
 •so enlarged the time for appealing, to vary or amend the order dismissing the 
 action, and in the exercise of sucYi juris<liction his discretion is not limited l)y 
 nxpd or arl)itrary rules: Cartrr v. StiMx, (i (J. B. D. 11(»; see also Welpy v. 
 Buhl, 3 il B. D. 80, 253, and note to Ritle (i4(i. 
 
 In the above cases, Whixtlcr v. Hancork is recognized as correctly decided. 
 In that case there was no jurisdiction to make the order asked, because the 
 J.A. 31 
 
 3^, 
 
482 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 Rule 486. motion was to tako soine step in the cause, and was not directwl to ni(Mlifyin^ 
 the order for fliHniiHsal. There liad been no order or ai>j)licati(iii within the 
 week to set jusich- or vary the onh'r of diHjniHHal, or to ejihir^'e the tiuiu for 
 a|)i)ealiiif,' against tlie order of disniisnal, and, that order existnig and iiaviiig 
 taken effect, the caiis(! was (had. 
 
 The hist five alH)ve-nientioned I'luf^lish eases were consi(h'red in Nt urouiln v. 
 McLiilnni, 11 I*. K. 4(il, and were not considered to stand in the way <if a 
 motion to vacate a .judgment (sifjfned on default c.f delivery of a statement of 
 claim on a. day previously fixed hy onh'r for its delivery), and to extend the 
 time for (h-Iivering statement of claim. 
 
 By a \raster's order an action was ordered to l)e dismissed, \miess notice of 
 trial slioidfl l>e given l)v a <:ertain day. Tiirougii mistake of a soh'citnr's clerk 
 notic<! of trial was not so delivered. A .ludge in his discretion refused to 
 extend the time, and the Court of ApjM'al refused to interfere : ilildi-r v, 
 Morrlsi.ii, 30 VV. H. .Sl.">. 
 
 iVhere, withiTi four days from ii decision (»f a ^Easter in Chaml)ers, an a|iiH>al 
 sunnnons was taken out, and made returnable at a date after the expiration of 
 the four days, iiut on the first day wiien any .ludi'e would sit at Oiianilurs, it 
 was held that the time might he enlarged under tiiis f'n/i : (lililiDii.t v. Ldii'ldii 
 Fhiaiiciiil A.tsnviiitiDii, 4 C V. J). 2(13. 
 
 Tiie Riili' i>ii\y applies when^ a limited time is fixed for something to he done, 
 and not where tin? Kii/rs direct some act to be done l)efore another : J'ilclicr v. 
 
 /?//»/«, 11 Oil. I), '.m. 
 
 Tlie Court cannot, under this Ritir, extend tiie time for renewing a writ 
 where in tliP al)sence of sueii ri'uewal tiie claim woidd be barred by tiie Statnte 
 of Limitations : iPoiilc v. Kditfnuiii, 3 il. B. I). 7, 340 ; but the time for issuing 
 a concurrent, writ may be extended, tln( original having been kept renewed so 
 that it coidd be acted \iiH)n witiiin the .jtu'isdiction : Small iKitjc v. Yim'ie, .")5 
 L. T. N. S. 44, distinguishing /ioi/lr v. Kniifman. Set^ also note to I'ule 
 238. 
 
 See also notes to sec. 71 ^'f the Act, supra p. HI. 
 
 AH1»* The Vacations to be observed by the High Court 
 of Justice and the Court of Appeal, shall be as follows : 
 
 The Long Vacation to consist of the months of July and 
 August. 
 
 The Christmas Vacation to consist of the period from the 
 24th day of December to the 6th day of the following 
 January, both days inclusive. J. A. Rule 582. 
 
 Unless under any Rnk (such as 7, 483, 484), pnxjeediugs are prohibited during 
 vacation they may lawfully be taken, c.'/., taxation : see (.'(inninfou v. City of 
 Lnuihn F. litx. Co., 13 P. k. .S(!. 
 
 8. Examination for Discovery. 
 
 Discovery. In general discovery is f)btained by interlocutory proceedings as ancillary 
 General to the main oi)ject of an action, Init an action for discovery may, in a ]iroper 
 ™le». case, still be brought : Orr v. Din per, 4 Ch. D. i)2 ; .1 ndersun v. Hunk «J 
 
 Britix/i ( '(ihiitilnc, 2 Ch. D. (544. l^'or the grounds of ol)jection to siich an action: 
 see Maddock's Ciiy. Pr., .3rfl h]., 2()8. An action for discovery in aid of proceed- 
 ings in a ffireign c5ourt cannot l)e maintained : ])re>ij'ii.<i v. Tlw. Peruvian Ouano 
 rv.., 41Ch. D. 151. 
 
 The Judicature Act has made no alteration in the right of the parties to 
 discovery by examination : see Aft'/.-frm. v. O'aKh'll, '.:<> Ch. D. ■''d'J ; a'"*' 
 
 Time for 
 vacations 
 in tlie High 
 ('ourtof 
 Justice, 
 and Court 
 of Appeal. 
 
■f *^« 
 
 EXAMINATION FOR DISCOVERY. 
 
 489 
 
 II II II II ill I fs V. Wil/iiiiiiso/i, 10 (^. H. I), 4r)!l, where it was hnW tliat in an actiun Rule 487. 
 fur |iciiiiltirs tiic pliiintitf could not administer intfrrogatorie.s an he hud not tlie 
 liL'lit before the Act : also .A///c.v v. ./o/ic.v, 22 C^. B. U. 420 ; Martin v. Tiruiher, 
 •MW. \\. HI") ; 54 L. T. N. S. 7 ; Wlii/rl,f, v. Ilnrh'!/, 5(1 L. J. (^ Ji. 312 ; but the 
 aiiKMiiit payalile under the ('opyrij^ht Act, 1H42, for eucii i-epresentation of a 
 iiiiiHieai puliliuation eopyrijfiit, was iiehl not to be an action for penalties, and 
 tjicrcfure discovery was iillowiil)le ; Ai/khis v. liiitlry, XiMl. H. 1). ()2ij. 
 
 The Keneriil rides as to privilejre in evidence apjily in examinations for 
 (lisciivcry, luid in the |)ro(liiction and inspection of documents. 
 
 The plaintiff is entitled to examine in order to ascertain what title the defen- 
 (liuit is setting ui» against him. Tiiis does not come within the ground of 
 privilege : ^'nilli'H v. Siiiiil i/rnift, 'XWW , i {.;")" 7. 
 
 \ party has the right to examine for discovery, not only for tlie purpose of 
 elitaiiiing information from the o|)posite party as to material facts which are 
 iMit within his own knowledge, and are within the knowledge of the op|)oaite 
 party, liut also for the purpose of obtaining from the op|H)site party, admissions 
 which will make it mniecessary for him to enter into evidence of the fw^ts 
 iMhiiitted: .l/^/.-^■'•//. v. UUisl.ill, 20 Oh. 1). ollt ; //.■///-■/■ v. Ellis, W. X. 1884, 
 !l; see <'iilti'r v. Mr I'lii'i-smi , 12 I'. I!. (>.'<( I ; llinniiiirii's v. 'I'diilur Drm/ Co., 3!) 
 I'll. I). (;'.13. 
 
 An executoi- pleading jilmr nilinliiislrarit was held bound tt) disclose particu- 
 lars of the real and personal estate : St. limri/r v. St. Ilrirrifr, ]i( li. |{. Ir. 22i"). 
 
 There is no distinction as regards the right to discovery between actions of 
 ejectiiient and other actions: /,i/r/t v. Krniirilii, H App, Cas. 217; hnaiel v. 
 i'uni, W. N. 1S83, 27. o2. 
 
 The old I u'actice in Chancery was for the bill to contain interrogatories, to Former 
 wliich the defendant was bound to give full answers upon oath ; and, on the practice, 
 ether hand, the defendant could only avail himself of the plaintiff's oath by 
 filing a cross-bill containing like interrogatories. I'his practice was changed 
 in this Province by the ( Jeneral Orders of the 3rd of .1 nne, ISalJ, which substituted 
 im oral examination of each i>arty at the instance of his opponent. The Orders 
 for this |)urpose were afterwaids embodied in the Consolidated Chy. Orders 
 KW14.S, My The AiliiiiaiMratinn nf Jnstirr .Ic/, asitnilar |)ractice was provided 
 fur the Courts of (lommon Law : see li. S. O. 1877, c. oO, sec. 150, el seq., as 
 amended by 41 V'ict. c. 8, ss. 8. !l. In some ))articulars the Chy. Orders 
 differed from the statute ; and the origimd .1. A. Rnlm left the old practice 
 iiiuier Ixitli on this subject in force. 
 
 Tiie Con. Itnlrs formulate a |)nvctice in part jwlopted from the Chy. Orders 
 »iid ini)art from tin* Common Law I'rocediire Act, so that the difficulties which 
 fontierfy were created by the double provision on the subject (ivs t(i which see 
 .Maoleiman's, ,lud. Act, 2nd ed., 353), no longer exist. 
 
 AHt, Any party to an action or issue whether plaintiff Examina- 
 or defendant, or in the case of a body corporate, any one tie" for ats- 
 who is or has been one of the officers of such body cor- °°^^'y- 
 porate, may without any special order for the purpose be 
 orally examined before the trial touching the matters in 
 question in the action by any party adverse in point of 
 interest ; and may be compelled to attend and testify in 
 the same manner, upon the same terms, and subject to the 
 same rules of examination, as any witness except as here- 
 inafter provided. Sec Chy. 0. 138 ; E. S. 0. c. 50, s. 156. 
 
 Parties adverse In point of interest.— Under the Englisii Ord, 31, 1. 1, pro- wiio may 
 vidnig for the examination of the " opposite party or parties," it has been held be ex- 
 tnat a party addefl l)y the dt'fendjuit in a couiiter-olaim, is not an opjKisite amined. 
 
 
484 
 
 MISCELLANEOUS PROCEEDINOS. 
 
 |.=*«i-4-i- 
 
 Oflicers of 
 corpora- 
 tions. 
 
 Rule 487. (mrty aH rjgiwds thf pluintiff : MoUoii v. Killiii, 1.5 Cli. 1). lt)2; hwinm Brad- 
 Icy V. Clark, » P. K. 410 ; lit C. L. .1. I!t3. Jliit ii tliird party, who has \msn 
 notified by tlio dcfcntlant under Riih's 32S, .'<2it, and has appeared and ol)taine(i 
 leave to defend, w entitled to examine the plaintiff in the Hanie manner as an 
 original defendant : McAlliHtcr v. Jiixhup <if Hdihcatir, .') C. 1'. I). 11(4 : Kdin v. 
 Wrardalf Iron Co. 34 Ch. I). 223; and the plaintiff in entitled to exaniiiie 
 him ; Jimdkn v. Clark, <J V. K. 410 ; 1!) C. L. .1. 11)3. 
 
 If tile iHHUeH between co-defendants are material to the case of the plaintiff, 
 or to th(* eliaracter of the relief he seek he may examine a deff^ndant u|«m 
 them, tiiougii tliere is no issue Ix-tween that defendant and iiimself : Alrxmidn 
 V. JJiainimil, !• I'. II. 274. A defendant wiiose interest is identioal with that 
 of tile ])laintiff is a party adverse in point of interest to iiis co-defendant, and 
 may !)(■ examined liy such co-defendant; and wliere the plaintiff's solicitor in 
 lireseiit at sucli examination tiie depositions may he reail a^'ainst tlie phiiiititf : 
 Aluiirr V. Htiiid, H ]'. U. 413. A dischiimingiiefendaiit ciiarjfed witii complicity 
 in a fraud was held to he projierly (piestioiied as to tiie fraud : McFurldnd v. 
 McFarlaiid, <.t |>. 1{. 73. 
 
 Officers of Corporations. -The examination of an officer or past officer, or 
 member of a corporation in Kii),dand is obtained under a Kule (Ord. 31, r. f)) 
 not adopted here, and sometimes by making liim a defendant: see Mdiulii.ttir 
 Val dc I'rarirK I'ariiui Co. v. Slai/'l, W. N. 1882, 127 ; Ikrh'liii v. Jii.scoinU Co., 
 13 Ch. D. !»!». 
 
 Under tlie practice in Ontario, under the above Rulf, a member of a Co., 
 not being an officer or ex-officer, cannot be examined unless a party and it is 
 imjiroper to make an officer of a (Jo. a jiarty merely for the jmrposc of din- 
 covery : Ruh' 307. 
 
 R. S. (). 1877, c. 50, s. 1.5(», in regard to the right to examine officers 'as 
 the same as the jireseiit ii'//'', and under these provisiinis, the sub-editor ir 
 assistant editor of ii newspaper has been held to be an officer ('xaniiniible for dis- 
 covery in action of libel : Maitland v. Ultilic I'rintiiKj Co., !) 1'. H. 370 ; so alsn 
 the chief engineer of a Ry. Co. : Oaklrii v. Toronto (J. it Ji. R.i/., V. K. 253 ; a 
 station master of a Railway Co. in an action for not delivering ^'oodssliipiK'd: 
 Rnmsuy v. Midland R>i. Co., 10 I'. R. 48 ; tin; locomotive superintendent, and 
 locomotive foreman of a Ry. Co. in an action for damage caused by sparks froni 
 a locomotive: Moxici/ v. Canada Atlantic Ri). Co., 15 S. C. R. 145; and in 
 ■ an action for price of giMids which a defendant refused to acce|)t as being 
 worthless <m their arrival : Milnrr v. Clark and G. T. Ry. Co., 3 C. L. T. 215; 
 but not an engine driver or paymaster : McLian v. (>'. W. Ry. Co., 7 P. R. 
 358; or a tie inspector: Dahiii v. (i. T. Ry. Co., (J P. R. 307; or survHyorn 
 usuallyemployed by a inunicipalitv, but not fonnally appointed officers tliereof ; 
 Mfck \: Yarmout/i', !) C. L. T. 373! 
 
 An order was madt! to examine the agent of a liank, where the contract in 
 question was alleged to have been made by him on the b.vnk's Iw'half : thn- 
 ■si'lidateJ Bank v. iVeilon, 7 1*. R. 251 ; an architect of defeii(;..;its in an actiim 
 for price of work and materials in erecting a l.'iiilding, where defendants tlieui- 
 selves could give no informati(m : Smith v. Clarke, 12 P. R. 217 ; a local ugwit 
 of an Insurance Co. who jn'ocured the apiilication for the insurance in (piestion 
 in the action : HarlniU v. Canada Mutual Aid Co., 12 P. R. 401. 
 
 It would seem that several officers of a corporation may Vie examined where 
 ■different matters are jieculiarly within the knowledge of different officers: 
 aee CompiKjnic Financiirc, etc. v. Peruvian (luuiio Co., 28 Sol. .lour. 410. 
 
 In Goring v. London Mutual Fire Ins. Co., 10 P. R. 042, it was held that a 
 local agent who received ajiplications for premiums, and issued interim receipts, 
 and his successor who had charge of the agency when tfie fire occurred were 
 properly examinable for discovery as officers ; andinan action uiwn alife policy 
 the local agent of an insurance company who jirocured the application for 
 insurance was held to be examinable for discovery : Hartnell v. Canada Mutual 
 Aid A.isocn., 12 P. R. 401 ; and in an action against a corporation for negligeiic«. 
 the servant of the defendants who was guilty of the alleged negligence wa.s 
 also held to be examinable : Odcll v. City of Ottawa, 12 1'. R. 44«; so also tht* 
 
 with i 
 
 The 
 nciticc 
 K(ilicit( 
 HV/.« 
 ^H- 
 Co II, 
 rHjiiii-i 
 1 f'iiv. 
 
 Wii 
 tpnipor 
 ?1 is a; 
 attend 
 if til.' 
 
 P. i;. 
 
 IIL'. 
 
 .■\ pa 
 
 IllMlt tl 
 
 /'friiiiKi 
 re-servi 
 "rdcr t( 
 fJlelM'. 
 d('f)f)sit 
 
 The 
 
 no (lis 
 
 If 
 
'•<•' 'iiW ,^KS<»7i^(f *K''5'S 
 
 EXAMINATION FOR DISCOVERY. 
 
 486 
 
 How atten- 
 dance pro 
 cured. 
 
 conductor on a train on wliich nn accident occurrMl wliicrli wan the wnhject of Rule 487. 
 the action: Lritrh v. (Jraiid Trunk R. H'. (,'»., 12 I*. K. 541, ti71 ; luul an 
 officer of a coni|Miny called as a witneHH an the firMt trial of an action may, 
 wndinif a .second trial, Ihj examined under thin Rule. ; nee Leitch v. (iravi( 
 Trunk It. W. ('"., 12 P. R. (i71. 
 
 Qiwrc, wlii^tlier a jx-rHon may lie an officer examinable for diHc<ivery, liut not 
 one wiuwe evidencj' taken upon nucli examination will bind the company : 
 (loriim V. Lmiilou Mittitiil, He., supra ; Harliitit vCiininld .Uiitiitil Aid .ismpii., 
 \2 V. K. 401. 
 
 Ah to the time for making the examination : nee /iiint Rule 4H!I. 
 
 How attendance procured.- Where a party nwided in <iuel)ec, a subjuena 
 re<|uiriiitf iiis attendance for examination in Ontario was ordered to iNHUe under 
 C. S. C, V. 7!», H. 4 ; Mofl'dt v. Frciitiri; u 1'. R. 33 ; Rank of Rritixh North 
 Amn-icii V. I'Mii, WW,. L. J. I!t2 ; and nee Monll v. MorriKoii, C. 1'. I{. 210. 
 But sucli an order will not he granted rx jmrti : Miiffalt v. I'rinticc, Hii/mi ; 
 and see I)t imit v. Hiojliitt, 7 1*. K. 323. Under the Hn))p(enu he nuiy lie com- 
 |)elled to attend at such place as in the opinion of the Court is most convenient, 
 and not necessarilv the nearest to liis ])lace of alode ; Smith v. /laljcork, !• 
 I'. K. !I7 : /Sinik of IS. N. A. v. Kddii, il I'. R. 3'.t(;. 'i'ln^ party desiring the 
 examination is also entitled to a commission ; Slnitford v. <>'. IT, Ri/. Co., (< 
 P. K. !ll. 
 
 Where the party is o\it of the jurisdiction elsewhere than in (/ueliec, a 
 .S|K'cial Kxaminer may, i)y order, lie ap|i<>inted, to take the examination : see 
 Jtdlf 'i\14 ; or a commission may he issued : lloin/nr Fnniro-tiiiii/itininr v. Li'ts- 
 chn; \V. N. 187!>, 1K3 ; 41 L. T. N. S. 4(>H ; 2S W. H. 133 ; s<'e also Nodin v, 
 lUiMilt, 2a Cli. I). 21 ; hut then! is no authority to proceed without an order, 
 and hy suhi..en.. only : see Hunk of It. N. .\. \. Hddii, !l V. R. p. 3!)'J. 
 
 See also Rule 524. 
 
 The party to he examined nuist he served with a suhpcena, and pcid projier 
 witness fees : McMnrnni v. '/. T. Rii., 3 Chy. Ch. 1.30 ; Viirdon v. Vartloii, 7 
 I'. H. 43(1. A suhpiena dated prior to thi' time when the party issuing it was 
 entitled to examine the party served therewith, is irregular : MrMitr7-iii/ v. <i. 
 T. Rii.. sii/irn. The solicitor of the party to he examined should also he serve<l 
 witii 11 copy of tile examiner's appointment : Foirh r v. lioidton, 12 (ir. 437. 
 
 Tlie solicitor of the jiarty to l)e examiued is <'utitled to forty-eight hour.s' 
 notice (if the examination : Rn/r 4!ll, hut the party himself, where lie has a 
 wilieitdi', is only entitled to reasonalde notitte according to circumstances: 
 »■//.«,„ V. Coiron, 1!) C. L. .1. 140; 3 0. L. T. 21(J ; Rnlkoir V. Fosirr, 7 I'. R. 
 3«K ; see y;r A'. U'hxd Kxtnoiitli MiiiiiKi <'o.,'A\ Meav. (12H ; and Li/ii.-<kf>/ v. 
 Cirn. I'dcitir Itti. Co., 4 ('. L. T. !I3; hut where a jiarty who luis no solieito)' is 
 re(|Mire(l to attend, lie should have forty-eight hours' notice ; Wiihon v. Ham, 
 1 riiy. ("h. 2!»3. 
 
 Wilt re tiie party to he examined is a resident out of the jurisdiction hut 
 teiiipiiraiily present within tiie jurisdiction, and ai)out to return to his home, 
 
 •*1 is an iiisulficient witness h n which to detain him five days in order to 
 
 •itteiid tl xaniination ; liolkoir v. Foxtrr, 7 P. H. .388 ; liut it may he sufficient 
 
 if the party served make iioohjectioii to its sutticieiicy : see Smith v. Cnni, 17 
 I*. H. 345; r„„i.,f„rk v. Ilin-ris, 12 P. R. 17; I'lirkrr v. M,ridni, 7 C. L. T. 
 nL>. 
 
 A iiaity taking out an order to examine and failing to appear on an appoint- 
 ment tiiereiindir, loses tile l)enetit of the inder and must obtain a new one: 
 /•n-iiKKiin V. Fliott, 7 P. H. 7. When an examination is adjourne<l Kine die 
 re-service of an appointment and payment r)f conduct money is necessary in 
 order to compel attendance : Whitihiiid v. llartr, (Mr. Daltfni, 22 .June, 1882,) 
 '"'"'"■ 'I'lie party is coni|iellahli> to re-attend although he has signed 'the 
 
 (ikllM 
 
 (lefK)siti(ins and does not consent to the adjournment: Re Metropolitan Brush 
 <-'»., 51 L. '|\ X. S. 81 (i ; .54 T.. .1. Chy. 253. 
 
 The Examination. — The Examiner's office is not a public Court, and he has 
 no discretion to admit the public, if objected to by any of the parties : Re 
 »nt(rn of Canada O. L. A: II'. Co.. (i Ch. 1-). 10)» ; see also Rt Cambrian Co., 
 
 Exam- 
 iner's office 
 not a pub- 
 lic Court. 
 
486 
 
 MISCEIiLANEOlH I'UOCMKDINdH, 
 
 1*111. 
 i|iii»it 
 
 'I 111' I \.iiiiiniin,' 
 ■ |iiirty (ilijii'tH ; 
 
 'T' 
 
 Rule4S8. M L. .1, Cliy. L'L'l ; It) (.',■< i/'^ Unit;,!/ Co., 'S, Cli. I >. 
 ciiiiiiNi'l liiiH nil I JKlit til I lave ii clrrk tu iiMNiNt liiiii it' tlic i<{ 
 lliiiiiU V. v. r, /■'iiniitim <'»., li! I*. I{. _'!)2. 
 
 KxiiliiHioii W'liiiT Hcvcriil piirticw iittctid fur cxaliiiluitiiiii, the KxniiiilU'r niiiy cxi'lndi' 
 of parties. ||in>^c in tlw hmiiii' interest, while tlie others are undei' exiiniiiiatinn ; ^'iilnrinll 
 \. Itiniiii, 1(1 I*. I{.r)7"i: ■'<ivi iiriithl \. Sin iriiiilit,H V. K.HI ; Sinllii i \. f-milh, 
 1 M '. Ij. .1. .'Ml; liiit one iif them .sliuuld remain for the pin|iuhe of instnictiiijr 
 eoimsel, snliject to his lieiiin ''''►'t examined; Sin irn'i/lil \. Sin nviiilit, M )'. 1,', 
 SI ; and the I'lvaminei' has a disrretion as to the order of their evaiiiiiiatinii, 
 where sevei'al are in atteiidaliee fur examination : S/nnrt v. /in/l,,.-., ;(•_' \\', |{. 
 07(1; "iIHj. .I.CIiy. 7!M ; and his discretion extends e\ en to the exeliisioii of tlii' 
 exiiminant's solicitor if his presence interferes, in the Kxaminer's opinimi, with 
 the execution of his duty as I'lxaminer : //hiiiIh \, I'. <', l''iir,ii/iiir r,,., pj |'. |{. 
 lii(2. The refnsid to conipl,\ with the l-'.xaminer'-i ruling' is a contenipt ot ( 'niirl : 
 i^dilliii y. Smitli, II (J. ]i. .1. I!l>. .\ foiimlatinn must he laid in the pleading's 
 for (piestiinu asked on the examination : />ic/tsiiii v. I'anit. 'J ('li\. Cli. 'JlL'; 
 Nirholl V. Hlliiill, IHJr. tM\ ; /•rorfnr v. i>niiil, !t (ir. 'M. 
 
 'I'lie party examined niay he i c(piii'ed to produce honks and papers : /li'l "i,'1, 
 4!t7, hilt hooks in constant iisc need not he priKliiced until it is decided ' -c 
 
 necessary; when the l;;\aminer may adjonrn the examination until > 
 
 produced : i'miintock \. Iliirrix, lli I*. I{. 17. 
 
 If documentH iint produced the examininf^ party is entitled to liavc tin in 
 marked as exhihits ; //miiln \. /'. (', Fnruiturt <'<i., Vl I', i{. 2!C_'. 
 
 The party may h<* examined under this Riili . and may he suhseipiently cnws- 
 r.xamined on his altidavit on priHlut^tion, as (if eouise. I'sually it is aih isahli' 
 to postpone the examination until after the attidavit on production lias hciii 
 filed. The issuing,' of a siili/idtid iIiicih l/i-iint as a siilistitute for anuiderfor 
 production is not to Jx! eneourajfcd : /n r l5oyd, ("., I^mn'ii v. W'nlji. 1(» I'. Ii. 
 488; 20 G. Ti. .1. 41(». If the examination is iinnecessai'y, or vexatious, tliii 
 jiiirty taking,' it may have to pa.v, or at all e\ents he disallowed he costs of it : 
 holtHiiii V. I)()hxiiii, 7 I'. H. 2.">i!. 
 
 Where the examination is taken hefore a liocal UeKistrar, or other ntticiT 
 paid h.v salary, the fees are pavahle in stamps : Ihinnmh- v. .Mr< 'niiaiihii, M I'. |{. 
 i3() ; .hid. Act, .s. 12;"), (11) ; lait Deputy (Jlerks are entitled to fees in inumy 
 for their own use, for siu^h e.xamiimtiiins : lU. s. 12.j, ((i). 
 
 Plaeeofex- Place of Examination. The Kxamination must usually he had hefoie a 
 amination. Master, liOcal Hetristrar, or |)e|)Uty ('lerk of the Crown, or Special KxaniiniT, 
 ill the county where the party to he examined resides : llnlr 4!t, hut for s|Hciul 
 reasons, tfi he shown on an application in Clmniliers, he may he ordered to 
 attend elsewhere ; Mule 4!»2 ; (tulUmh, r \. <laiv,lin r, 2 ( "h\ . ( 'h.'4S(l: M<lh vmiil 
 V. McDfrmiil. fl>., ;{71 ; I'mii/M/ v. Tiich); 7 I'. 1{. ia">'; h'olni v. lUilfoM/.', 
 Chy. Cli. r)."> ; and note as to this case Cooper's |)ij,'est, |H7;{, p. 111. 
 
 Pa»'tybene- 4.HW. A person for whose immediate benelit an action 
 is prosecuted or defended is to be regarded as a party fnr 
 the purpose of examination. J. A. Kule 224. 
 
 '^SauK! a.s C ,\\. Ord. 1.3!) ; it is not amonf^ the Kiiglisli IJules. 
 
 A per.son to he examined, etc., must lie directly interested : Aft u.iis v. Toronln 
 Ae Ottnirii, (ilohe, 1st Oct., 1881. An order was made, where it appeared, nii 
 affidavit, that the plaintiff was ajfent for his wife as to jiart of the suhjeit 
 matter of the suit : lloifiailit. v. Siilhrr/iiiiil, (ilohe, lOth Sept., 1881. 
 
 In JohllKOH v. Afc/titnxh, ',i C. I,. T. 'M',i, .1. Ii.. was trustee for tlie_ K. estuli: 
 for twenty years when the (ilaintiff was apiiointed in his place. The actimi 
 involved the consideration of nuitterw during tlit^ trusteeship of .1. L.. and a-^ t'l 
 which the |>laintitf was it,Miorant, and the K. estati' was indelited to.(.Jj.,so tliiit 
 if tliv plaintiffs Mucceetled .). L. would he benefitted. An order w as made iind''!' 
 this IIk/i' ' '" examination of .1. L. 
 
 See also Brnifley v. Clurki; in note to Ilulv .50i». 
 
 f 
 
 i^li- 
 
 
 y ^ 
 
 • jc<^ . < 4 » ..-i ^ y* ' ^^^^'^*y>' "^^ 
 
EXAMINATION FOR DISCOVERY. 
 
 487 
 
 All oiili r uiiilir tliiH Jliih Uw tlir I'Miiniiuitidii of tlif pliiilitifrH (ItiiiKliti'i', in Rule 489. 
 
 Ml net inn "I scilui;tiiin was refused, Init under speeiiil einMiinstiii s wnsKninted 
 
 iiiidei A'.'/' •■>tlli : Tnriirv v. Kjih, IM C. \,. .1. 4(12 ; 2 < '. I.. 'I'. i.'.iS. See note,-. 
 
 to tllHt lliih. 
 
 The e\imiiiiiiti(iii iif 11 delitiir, wlio had etfeeted iiisiiranee and as>i(,'ned the 
 imlicy fur tlie lieiielit cif his iTeditiirs, «as iirih'i'ed in artinns hy (luec reditor and 
 the timtee fur the lienefit of other eredi tins : Mdf Imiiiilil \. Noi'trirli. Uninu ; 
 CliirkMiii V. F. Inn. Axmi., l(t I'. K. lIlL'. 
 
 See Miidhr V. .V. MrMillilii, 1(1 I', I!. ■)()(;, where |.ro(>f uf \\\>- interest of tlie 
 |iiUty siiu^fhl to lie exiiiiiined uas iinsiilisfaeturv, lait tlie order was niaih' with 
 the i|Miilitiiation that it wiin only to he used for tlie |iiii|iose of diseovery. 
 
 l.*iJK Tlie examination on tho part of a plaintiff may 
 taku place at any time after the Htatement of dofenee of 
 lliu party to bo examined has been (leliver( 1 or after the 
 time for delivering the same has expired ; and the exainin- 
 iition on the part of a defendant may take pla(!e at any 
 time after such defendant has delivered his statement of 
 (lefoiice ; and the examination of a )>arty to an issue, at 
 any time after the issue has been filed. See Chy. 0. 140. 
 
 A |iaity may lie examined as a witness in Mi|i|Mirt of a motion, althou(,'li the 
 time fur eMiuiiniiiK iiim imder this Ituli may not lia\c arri\ed : MrC/i niKii/hini 
 V. liifliiiiiiiii, 7 dr. !I2. 
 
 I'lKJer this /ii//^ it will 1)(^ noted that the riglitof tlie plaiiitiH' to cxaniiiie 
 only arises ((("/(/■ the statement of defence, or after the time for delivering,' the 
 Niiliie has e,\|iire(l I see Ihnlx v. Wickmni, !t 1'. H. 21!t. lie is not ohiiffed to 
 wait until all of several defendants have filed their statements of defence. 
 Fiiniieily, if instead of aiisweriii),' the defendant demurred, the rij,'lit of exaiiii- 
 iiutiiiii (lid not arise until aftertim demurrer had been disallowed, or if allowed 
 witii leave to amend, then not until after anieiiihnent and the time for 
 answeriiij,' tlie amended hill had expired: see ('liiinci v. //< mli r.sati, 1 (Jhy. Cli. 
 IMl; and it would seeni, under this Huh; that if the defendant demurs to the 
 whole statement <if claim, instead of filing a statement of defence, the ri(,'lit of 
 examination is similarly postponed. 
 
 The right of a defendant to examine the i)liiintilf under tins ii((/( only aristw 
 lifter he hiis tiled his statement of defence: a defendant who suffers the time; 
 for deliverinj,'' a defence to elapse without delivering one, has no right toexamint! 
 tlie plaintiff for discovery : Anli/iji v. Jlnntoii, VA I'. K. !»H. 
 
 A defendant is entitled toexamine the plaintiff as soon as his own statement 
 • if defence is tiled, he is not oliliged to wait until those of his co-defendants, if 
 luiy, are filed : FmrUr v. lUmltim, 12 ( !r. 437. lie need not notify his co-defen- 
 dants of the examination : //;. 
 
 The examination may Im* had, though the caiis(( has been entered for trial : 
 I'larh V. II„H(, 1 Chy. Ch. 3t(J. 
 
 The examination under tlo- l{itlc may he had as of cours(.' within the time 
 lucscribed liy it, but under JUdi TM\ both the plaintiff and defendant may, 
 upon a special application, for good cause shown, olitain leave to examine not 
 eiily the opposite party hefon^ the period mentioned in this ll\ili; has arrived: 
 Fi^kit, V. Clnimbn-lniu', it \\ l{. iK\; 18 C. L. .1. 4(W; but also a witness, for the 
 imrjiosr of discovery : Tiiriirr v. h'li/r, 18 C. L..I. 402; J/iwirir v. Nnlon; 2 
 C. L. T. 4!lit; Sinitli'v. (Jliirkr, 12 1'. K. 217 ; McMaxUr v. Musoa, 12 P. I{. 278 ; 
 Mciimr \. MrDinrmid, 1(» L. F{. Ir. 37() ; hut hm: ('(trunn'r v. Fidini/ /iank; 
 10 P. H. (J!) ; J/,nrii V. dilhcrt, 12 P. II. 114; and see Ccntnif Ifcim Co. v. EnMrrn 
 T((i<jriiiih Co., 7()L. T. Jour. 242, where it was held that the attendance of a 
 Witness o?' the jiriHluction of a docuineiit could only be ordered for the pur- 
 JMi4e of a particular motion, and not merely for discovery ; and see liosvnhvim v. 
 
 Thiip whoii 
 examina- 
 tion mi'.y 
 bu lield. 
 
 Party may 
 1m! exam- 
 ined aH II 
 witness. 
 
 Time for 
 examina- 
 tion by 
 plaintiff. 
 
 Time for 
 examina- 
 tion l>y 
 defendant. 
 
 Co-defen- 
 dants need 
 not benoti- 
 tlod of ex- 
 amination 
 of plaintiff. 
 
 
 
 % 
 
488 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 jfi^^T* 
 
 Rolea Silluiuin, 11 P. R. 7. An order obtained by plaintiff ex purte for the exiiinina- 
 
 490-492. tion of the defei^.!ant before the time nientiontid in this Rule had elajwetl was 
 8f)t aside : Hovcy v. Gilbert, 12 P. R. 114. 
 
 Tile defen(hvnt in an action to recover land is liable to be exaininnl Dy tiie 
 plaintiff for discovery: Ryill v. Kenmdy, 8 App. Cas. 217; 48 L. T. N. ,S,'58r); 
 reversing S'. (J. 20 Oh. D. 484 ; 4« L. T. N. S. 7r)2 ; and the fact tiiiit a defen- 
 dant pleads that he is a " imrchaser for value witiiout notice" affords no ground 
 for resisting discovery: Iiul v. Emnurxnn, oG L. T. N. ti. 778. An examination 
 for discovery may be had in an action for breach of promise ui marriage : 
 JIcLdwihIin V. ClirroU, 4 C. L. T. 4!»8; and see R. S. O. 1887, c. (il, s. (i; and 
 in an interjileader issue : Canada Perm. li. S. v. Forext, (J P. R. 2.'")4; and see 
 White v. \V<im, 31 L. J. 0. P. ;«1, and Rule 507 note. 
 
 and a**-"* 4ttO. Whenever a party is entitled to examine another 
 pointment. party liG mav procure an appointment therefor from the 
 Local Registrar, Local Master, Deputy Clerk of the Crown, 
 or a special examiner, in the County where the party to be 
 examined resides, and the party to he examined, upon 
 being served with a copy of the appointment and a 
 Bubpcena, and upon payment of the proper fees, shall 
 attend thereon and submit to examination. See J. A. 
 Rule 598. 
 
 The fact tiiat a witness could only speak Welsh, was held not to 1h- a ivason 
 for having tiie examination l)efore some (Kfrsou other than the Cmu't Kxanii- 
 ner, as he can have an interpreter : Mar'iuesx of Hide v. .Imues, 'X\ (.'li. \). 
 157. 
 
 ■^ h'cr special reasons tlie examination may be specially onlei'cd to lii' taken 
 
 before some other jjersou, and elsewliere than pr()\ ideil bv tliis linli' : Ri'l" 
 402; (falhKjhei- v. <iitirdner, 2 Cliy. (-h. 480 ; Mehenitid v. .\ir/)rnni<i, IK, :f72; 
 Vam/Ml V. Tucker, 7 P. R. 135 ;' /inlni v. Itudl'ord, 3 Chy. Ch. .55; Coop. Dig. 
 1873, p. 111. 
 
 Wlicre a motion is made to compel attendance of a party who iias ni)', 
 attended, or has attended and refused to l)e sworn, it nuist be proved tliat lio 
 was fluly served with a copy of appointment and .iidiinen'i. and was paid 
 proper ft>es : ?ieLean, v. /triiei, 12 I*. 11. 002. Srui/ilr tiiat tile K\iiliiiiiei'"s ccrtiti- 
 cate on th'M' |)('iiits would not l)e sufficient : /''. 
 
 Service of 
 
 Rppoint- 
 
 nient. 
 
 4f>l. The party examining shall serve a copy of the 
 appointment upon the solicitor of the party to he exiimined, 
 if he has a solicitor in the cause, fit least forty-eight hours 
 before the examination. See J. A. Rule 51)8. 
 
 Sundays and otiier ludidays are excluded in the computation of thi'4Sli(mrs: 
 see Hii/e's' 473, and 475, :mi\ Lureltiri- v. Ifarriiiiitoii, 10 J'. K. 157. ScM'vice (ni 
 Saturday at Oi.'iO o.m. for Tuesday at 2 |).m. is insufficient : Sean. v. llmiU, H 
 P. H. 7<>. 
 
 Order to 
 examine. 
 
 4f^S. Upon application to the Court or a Judge, an 
 order may be made for the examination of any party liable 
 to be examined as aforesaid before any other ])erson or 
 in any other county than those before mentioned, and 
 upon service of a copy of the appointment of the person 
 before whom the examination is to take place and a copy 
 
EXAMINATION FOR DISCOVERY. 
 
 48» 
 
 of the order upon the party to be examined, and upon pay- J^.^ 
 ment of the proper fees he is to attend and submit to 
 examination. A copy of the appointment shall be served 
 upon the solicitor of the party at least for.<y-eight hours 
 before the examination. 
 
 See ni)te to Rule 487. 
 
 403. The party or person to be examined shall, if so ^j'o^"<=^'^o" 
 required by notice, produce on the examination all books, 
 papers and documents which he would be bound to produce 
 at tlie trial under a suhpcena duces tecum. K. S. 0. 1877, 
 c. 50, s. 161 part. 
 
 The pi-()|H'r niixle (tf coiniH'lling procluction (mi an oxamination for discovery, 
 where tlie wituens ncjfU'.ctH or refuses to produce, is for tlie Kxaminer to direct 
 what (loouinents are to be ])roduced and to adjourn tlie examination. Process 
 by wti/iirim diicru trcum to get |)r(Hlucti(in of particuKir documents is not to be 
 Miamraged l)y treating non-production as contempt ; Laveni v. Wnlfv, 10 P. R. 
 
 m. 
 
 See /^(xW/ V. .l/«r(/(W(r/r/, 12 p. K. 458, 
 
 4!M. Any party or officer so examined, may be further P'irtiesanj 
 examiued on his own behalf, or on behalf of the body cor- beoV!am-'^^ 
 porate of which he is or has been an officer, in relation iheir°owu 
 to any matter respecting which he has been examined in '^^''^if. 
 chief; and when one of several plaintiffs or defendants has 
 been examined, any other plaintiff or defendant united in 
 interest may be examined on his own behalf or on behalf of 
 those united with him in interest, to the same extent as 
 the party examined. II. S. 0. 1877, c. 50, s. 15G, (1). 
 Chv. 0. 141, 142. 
 
 4!>5. Such explanatory examination shall be proceeded ^|^/j,^'\^jV 
 witli immediately after the examination in chief, and not oxamina- 
 at any future period, except by leave of the Court or a pi'a'.e.*' '''''" 
 Judge ; and for the purposes of this and tlie preceding 
 Rule, when the officer of a body corporate has been so 
 examined as aforesaid on behalf of the body corporate, the 
 body corporate shall be deemed to be fully represented by 
 such otricor. R. S. 0. 1877, c 50, s. 15(5 "(2). 
 
 4!M». Any party or person examined orally under the>io(ieof 
 preceding Rules shall i)o subject to cross-examination and uxaniina"^ 
 re-examination; and the examination, cross-examination '"'"• 
 and re-examination shall be conducted as nearly as may 
 be in the mode in use on a trial. R. S. 0. 1877. c. 50, 
 8. 161. 
 
490 
 
 Rules 
 497-499. 
 
 A j)arty iitl- 
 niittiiiK tlio 
 posHesHioii 
 of rtocu- 
 iiieutH limy 
 be orderort 
 to prodiioe 
 tliein. 
 
 WlieroMiib 
 tor may 
 •ordoi" pro- 
 'ductiou. 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 •107. A party to the action who admits, upon his pxam 
 ination, that he has in his custody or power any deed, 
 paper, writing, or document relating to the matters in 
 question in the cause, is to produce the same for the 
 inspection of tlie party examining him upon the order of 
 the Court or a Judge, or of the Deputy Clerk, Local Regis- 
 trar, Special Examiner, or Local Master, hefore whom be 
 is examined, and for that purpose a reasonahle time is to 
 be allowed. But no party shall be obliged to produce any 
 deed, paper, writing, or document, which is privileged or 
 protected from production. Chy. 0. 147. 
 
 Tlic power of tin- Master, or Special Kxamincr, to onler production of docu- 
 iiicTitH \iii(l(fr Rule 4!(7, is coiitiiit"! to eases wlicre /iiirlifs Id IIu iirlitm admit tlic 
 possession of sucii (lociiinents. Wliere the admission is made liy an otticciof ii 
 (Mirporation, it would seem tiiat the Master, an<l Mxaminer, liave no power tn 
 make the order, and that an ajtidieation in ('hamliers is necessary ; set- A'h/i' 
 .")07. Production may he obtained undei' an order of eotu'se, as provided liv 
 Ilnlf 508. The provisions of Unit 4!I7 are intended to meet the case of a party 
 who, iiavinj,' tiled an affidavit in answi^r to an order to pnKhuu'. on his suh- 
 seipient cu'(jss-e.\ani ination admits thiit he has otiier material documents hIiIuIi 
 lie has not produced. Thi^ examination may lie adjourned for tile purpose (if 
 enahliiiK' the jiarty to comply with the Master's, or I'lxamiiier's order fur 
 production : < 'omxtnek v. //<irri.i, 12 V. R. 17. 
 
 .A party to tlie action examined under Jliilt 5(i() may also lie ordered liy tlic 
 Kxaminer to |iroduce doeunieiits liv virtue of this Rulf : Or/im v. Km; 11 
 I*. R. 12S. 
 
 40.H. Either party may appeal from the order of the 
 Deputy Clerk, Local Registrar, Master, or Pjxaminer; and 
 thereupon the Deputy Clerk, Local Registrar, Master, or 
 Examiner, is to certify under his hand the question raised 
 and the order made thereon. Chy. 0. 148. 
 
 \n appeal from a Master is to Im- lirou^fht liy notice of motion to lie ^iveii 
 within four days after the decision complained of, or such further time as iiiuy 
 he allowed hv' a .lud)?*' : «"/'■ «■*<•; />".'/'''' v. Hiihirtsoii, !l 1'. I{. 7M : Imt sec 
 McNiill v. .\[ciiri;i,i,\ ;{ V,. L. T. aiHt. The appeal must he to a .liidxc in 
 f'liamhers, and must he hrou^rlit on to he lieanl, within nine davs after tlir 
 decision, or siiidi further time as may he allowed hy a .ludKe ; /^''' H^li- 1" 
 the (Mnineery Division such appeals are at jiresent heard on Mondays, ;iiid in 
 the other Divisions on Tuesdays and Fridays, except in vaciitio!i; /'"/'■ -H, 
 the operation of which was suspended, has not yet In'en hrmiKlit i'lt" f<"'L'''- 
 
 There is no Itnli specially rej,''ulatinK appeals from Special Kxaniiiiers, hut it 
 is jiresinned they should he lit-outjht and prosecuted in the same iiiaiiiicr a« 
 appeiils from Masters, inider /.'"/' .H4(i. 
 
 As to documents |irivile^'ed from |irodiie.tion, see notes to Iti'li 51.'!. 
 
 ^«nauym. 4l|«|. Auy party or person refusing or neglecting to 
 fusing to attend at the time and place appointed for his exaraina- 
 AHBw'er.o'tc. tion, or refusing to be sworn or to answer any lawful ques- 
 tion put to liim by the examiner or by any party entitled 
 so to do, or his counsel, solicitor or agent, shall be deemed 
 
 Master's 
 and Kxaiii- 
 iuer's order 
 for produc- 
 tion ap- 
 pealable. 
 
 Appeal 
 from order 
 directiiif,' 
 produc- 
 tion. 
 
'^1 
 
 EXAMINATION FOK DISCOVEUY. 
 
 491 
 
 guilty of a contempt of Court and procdedings may be^'^^'*'*- 
 forthwith had by attachment. If a defendant, he shall be 
 liable to have his defence, if any, struck out, and to be 
 placed in the same position as if he had not defended ; and 
 the i)ai'ty examining may apply to the Court or a Judge for ' 
 an order to that effect, and an order may be made accord - 
 higly. K. S. 0. 1877, c. 50, s. 162 ; J. A. Eule 236 ; 
 Chy. 0. 144 ; 41 V. c. 8. s. !>. 
 
 This i'l'/'' is coiifiiU'fl to tlircf classes of ciisfs (I) refusal (ir lU'glcct to 
 attend fur (•\!iiiiiiiiitioii, {'2) refusal to he sworn, (8) refusal to answer lawful 
 (|Ufsti(iiis. 'riiisyi'"/( renders a wilfully disobedient defendant liable to iia\e 
 his (Icfciice struck out: /f((i;//i v. Ildi'ih, 'M Ch. I). J'S. Antl by /Jk/c (i4K a 
 plaiiititf refusint,' or neglecting to attend for examination, or to comply witli any 
 (ir(l''V fill' production or inspection of documents is liable to have ills 
 uctiimdlsniissiMl : /{'■/ii'')/ir n/ Ll'x'rin v. /m/i'u-in' linn/,; L. \i. '.) Chy. ")(»!•; 
 S. ('., as li'/ii'Uir III' Lilii'iiii V. Riiiir, 1 Al)p. Cas. V.V.) ; /tiniii v. MrLciiii, <> 
 I'.R. V>U: liiiiii-'illif'r V. .l/y/o.v, W. X. IHH.'l, ^H. /,'///.■ (;4K, however, does not 
 c'dvcr till' case of the plaintiff's refusal to be sworn, or his refusal to answer 
 lawful (|\iesti(iiis. 
 
 Hy Rnir oL'O a party failing to comply with an order for production. t)r 
 iiisiH'ctitiii of docuuiejits, is lial)le to iittachiiient, and, if a defendant, to have 
 his (letciii;e struck out. 
 
 I'liuTi failure of ;i plaintiff to attf^id for examination, the action may bestayed 
 fur a<!i'tiiute timeand not indetinitelv, to enable him to attend: i'lnnntucl,- v. 
 llan-U. VIV.W" 
 
 A party who lias Ixh'U orderefl to attend for further examination, after a 
 pfiisal to answer (juestions, is in contempt if he does not set attend, but that 
 ills apjiealing from, the order: .Wrd'iri/nr v. Miltunnlil, 11 
 
 to 
 
 rcfiis 
 
 is iKit a liar 
 
 1". II. .MS. 
 
 The (U'fatdting party is entitleil to notice of a motion to commit : Itulr Procoed- 
 87'J, iir ti) strike out defence ; and it would soem that a notice to commit should iuKS in do- 
 1k' iMsiiiiallv served : Maiin v. /'«■/■///, 44 L. T. X. S. 24H ; ;"")() L. .1. (^hv. 251 ; fault ofipro- 
 UViV V. .U"//"s'./', 1 Chy. Ch. 244 ; see, however, Rnlr WIX. 'I'wo days'' notice ''"ction. 
 would Nieiii to be sufficient in all cases : Hnlf 47!'. 
 
 Tiifpartv luust have been regularly sulipienaed : AfrMniiiii/ v. (>'. '/'. Jti/. di., 
 ;i Chy. Ch. '1:50, and paid his witness 'fees : linlhin- v. rustn; 7 P. H. IWH, or no 
 (irtleroau lie made against him ; MiLfon v. //(-(/ir, 12 P. H. (>()2. 
 
 .\ luiitiiiii to strike (Hit defence is not the proper course, where default h.as been 
 iiiiwlc liy an officer of a Co. in attending for examination. The remedy is to 
 ciimniit tile defaulting officer : Itid/i/fi-mr v. (<'. T. Ri/. Cn., lU 1'. H. 132. 
 
 .\ niiitidii may lie made under the above Riih' to commit either a jilaintiff or 
 defendant for (1) refusing or neglei'ting to attend, (2) refusing to be sworn, (3) 
 refusiiifr til answer any lawful <(uestion. 
 
 1', 
 
 Kitii 
 
 iftl 
 
 lev of tl 
 
 ises a defendant is liable to ha\e his defence struck out. 
 
 le above niotions may be made without a iindiininary motion to 
 "ini|iel him to attend at his own expense. Hut in the case of a pl.-iintiff lie would 
 
 ii|i|iear tii lie lia 
 attend: 
 
 ble t( 
 
 lave his action ilismis.sed only for refusal or neglect to 
 
 ce /li'/r li4S. In the case therefore of a plaintiff atten<ling, but refusing 
 U\ 1h' swdiii, or to answer any lawful (piestions, the proper course would seem to 
 '"■til niiive fur an order to compel him to attend again at his own ex|i<'nse and 
 
 'iliinitt 
 
 I examination, or in default that his action be dismissed. When such 
 
 ■/mill' 
 
 Ih, 
 
 V. MiLr„n,\\ \\ \\. \M. 
 
 an (irder lias beiu olitained and ilisobeved, the motion to dismiss tht! action may 
 
 I*' made 
 
 rthasli|.|.n held that procee<lings toiittatdi nnist be tiikeii before the Court and 
 niit liefiire a. fudge in Chambers : Mi'nliinits Hatih v. /Vc/w/h, H I'. K. 12.S; but 
 thisdecision does not eem in |iractic(i to have l>cen adhere<l to. The motion is 
 
 .SltT 
 
mwm: 
 
 492 
 
 Rnle 499. 
 
 WSn 
 
 i 
 
 1 
 
 ^ 
 
 1 
 
 1 
 
 ^^^H 
 
 ': Ui 
 
 r* 
 
 Restoring 
 action diu- 
 inisHod for 
 non-pro- 
 ductioii. 
 
 MISCELLANEOUS PROCEEDINaS. 
 
 made to a Judge in Chainl)ers in a case of non-compliancu with a pneciiwonler 
 or order in ChamberH ; and an application to the Court is only ncci'Hsary in cm 
 of breach of an order of the Court : see Klein v. f'niim Ins. ('o., 3 C. L. T, (K)l 
 and note to /{idr 542, 
 
 The Master in ('hamViers cannot entertain ap]>licationH to commit for non- 
 pnxluction: Jiii/f .W : Kcrf<' v. Wart/, <t P. R. 220 ; 18 C. L.J. Kid; 2C. L.T. 
 2(iO ; neither can a Local Judge : see /{n/e 41 ; or Local Master: flulf 138. 
 
 Where an action has l)een disniissed it will not he restored unless i)erlia]w when 
 the claim would otherwise lie harn-d by the disuiissal, e.;/., by the Statute of 
 Liniitatiims : hmin v. AfcLcnu, It P. R. l.'Vi ; and see IJmli/.sim v. I'axtim'l 
 f!hy. Ch. .3!»8; Hunk of Monli-eal v. HV/.v-,//, 2 Chy. Ch. 117; />«n/ v. /Mn/, 2 
 C!liy. Ch. 2(> ; nor where the defence has Imhui struck out, and judgment .signed, 
 will tiie judgment he set asid<^ : //('////( v. Hnii/h, 31 Ch. D. 47H. 
 
 As to motions to commit for unsatisfactory answers : see Swil/i v. 'r'w/, 4 
 C. L. T. .TSit. An objection to answer incriminating questions shotild lie 
 taken by the witness, but the privilege may Iw claimed on a motion to 
 commit, though not claimed Ix'fore the examiner : Halt. v. ilmmuldd, 12 
 P. U. (!04. The ixtnal provisions of 13 Kliz., c. .5, do not afford any ground 
 for refusing to answer (piestions piit regarding a fraudulent transnction ; 
 lhiiisfi,rd V. Ciir/ixlr, 10 ]'. H. 440. 
 
 On a motion to connnit for non-production of lKK)ks, etc., piu'suant to a 
 Hubixena (liici'n icrum on an examination for discov<>ry, it was licld tliat the 
 lirojM'r coursi- was to get tiie examiner to direct what should he (inKliicwl, 
 and adjourn the examination for lUvicinMng tin- docinnents : Lairri/ v. W'ulft 
 10 P. K. 4HS ; r„mst„rt v. Ilonis, 12 P. H. 17. 
 
 Where tlie defendant did not appear nor deliver any statement of defence 
 after being served with a statement of claim, and a summons for him to iittemi 
 to be examined touching the matters in (pu-stion (delivering up to plaintiff (if 
 hooks and documents in his ])os.scssioii) was likewise disregarde<l ; it was lield, 
 that, notwitiistanding that he was a pai'ty to the action, he must be considered 
 as being sununoned as a witness, and must be dealt witii accnrdintrly, iuid that 
 his disobi'dience was not dis(d)e(lience of an order of ('ourt. .An or<i('r ww 
 therefore made under Kng. Rule of 1H83, No. 405, (not iulopted in Ontario) fov 
 his attendance for examination at liis own ex|»'nse, for disobedience of which 
 an attacinneut niijriit issue: I'mivll v. XlrcN, '}'> \j. T. X. S. 7-8. 
 
 I'his Unit does not apply to cases of disolwdienee of a notice In produce for 
 inspection under /{nli' 574: see Mrrrlnnils' Hunk v. rirrsiui, S 1'. I!. 12;); an 
 order under Half 't\' must first l)e obtained. 
 
 An order for priMJuction need not now l)i' indorsed with the waniinij to the 
 party, sometimes emploved under the former (liancerv I'raelice : Thi,iiii(^ y. 
 I'lilia, 21 Ch. I). .HliO; \Viilliii, v. (inih,i,ii, 11 L. R. Ir. '3110. 
 
 It isotlierwise in Kngland under the Rules of 1883, ().. 41, r. o. even in case (if 
 an order for producti(ni which may Ix" served on the .ilicitor : see //i'//i/"/'Vi \, 
 \y,i/li.s, 2liCh. I). 7411. 
 
 For tln^ pr(K!ee(lings on a motion to attach, .see further notes to /^(^■.' fl'K, 
 870. 
 
 It is not imperative on the Co\n't to act under this Hn/t : Id muihi v. LiieU, 
 W. N. 1882, 137. It was said in one case that the Unit is a penal oiiiMind 
 oidy to Im- acted on in last resort : Lush, J., in Tifi/fniss v. (innil, W. N, ISTS, 
 201', 220; 1 Charl. Ch. Ca. 115 ; see /•V.sAc- v. //(/'/Aci, 25 W. I{. .'•28 : /'i/c v. 
 Ki;„i\ 24 W. R. 322; .35 L. T. N. S. 341. 
 
 Where the plaintiffs were husband and wife, and the wife compliiil «itlian 
 order for pnMluetion, but the hnsiiand absconded without complying, Hall. 
 V.Cj., refused to dismi.ss the action under this Rnli : lluilliii v. Ourn, W.N. 
 1870, 103; .34 L. T. .\. S. 752. 
 
 For other cases in which the jKtwer has been exercised : see I'Jiri v. Htiflhfi, 
 25 W. H. .528 ; and liii,. of Lilrriit v. />'.///<■, 1 Api). Cas. 130. In the last ciise it 
 was held that wlient any step ought to Is- taken in a cause, wliicli in the jwig- 
 ment of th(! Court was necessary to facilitate the decision of the cause, and 
 
EXAMINATION FOR DISCOVERY. 
 
 498 
 
 default had iKien made, the fonner Court of Cliaiicery had |M>\vt'r, if the jwirty Rules 
 in default was the jtlaintiflr. to dimiiiKH the hill: nee alMo Fnixfi- v. liurnnrH, 000,001. 
 2Q. B. O. Ii24. 
 
 C<)mi)liiiiict> waH held excniHed by illness: Lord CardHrll v. TumlliiHon, 3S 
 W. K. m : r.2 L. T. N. S. 74(i. 
 
 500- If the party or person under examination demurs pomurror 
 or objects to any question or questions put to Inm, the tions. 
 question or questions so put, and the demurrer or objec- 
 tion of the witness thereto, shall be taken down by the 
 examiner and transmitted by him to the office of the Court 
 where the pleadings are filed to be there filed ; and the 
 validity of such demurrer or objection shall be decided by the 
 Court or a Judge ; and the costs of and occasioned by such 
 demurrer or objection shall be in the discretion of the 
 Court or Judge. 11. S. 0. 1877, c. 50, s 1G3. 
 
 A party may ohject to answer (|uestioiis, tending to criminate the party 
 under examination or tiie hiisl)aiid or wife of such partv : Fixhvr v. thiwii, 8 
 ('h. D. M:> ; Allliuxfti v. Lalmnchcrc, 3 (l IJ. 1>. (554 ; Mitchell v. Little, 10 P. R. 
 265. Theohje'^ti"-; nmst lie made on oath: Webb v. Kant, 5 Kx. 1). 23 ; Pmver 
 V. Ellin, (i S. C. K.. hut if not taken tx'fore tlie Kxaminer the privilege, it seems, 
 may still 1k' claimed on a motion to commit : JIall v. ti'o wan lock, 12 P. K. 204 ; 
 it is .sufficient if the person swear that the answer to the (juestion ' migrht ' 
 tend to criminate iiim : J.amb v. Minister, 10 (}. B. |). 110. That another 
 [ifr.sini mav 1m' exposed to an action, is not a ground for refusing to answer: 
 Telley v. ku-stun, 2.") L. ,1. C. P. '2'Xi. 
 
 Where interrogatories under the I'^nglish jiractice wei-e administered to the 
 Kuanlia!) ml liteir of a lunatic defendant, it was held that he need not answer 
 them, as he was not a party and not called ujKm to make admissions again.st 
 defendant's interest : Inyram v. Little, W. N. 1H«3, 124. 
 
 There is no distinction as regards the right to di.scov('ry between actions of 
 I'jectnieiit and otiier actions ; and a jdaintitT is therefore entitled to discovery 
 »s t<) all matters reh'vant t<t his own and not exclusively to the defendant's cane : 
 Luell V. Kiinieilii. H App. Cas. 217 ; /funiel v. Fun/. VV. N. 18H3, 27, 52. This 
 is nut a new right, however ; the rigiit to discovery is unaffected (iv Tin' J iiilica- 
 Inrt .hi. Ih.,-Mu\ llinniinii v. WilliainMin, 10 g. M. 1). 4r)!l, 4(i2. 
 
 501. Subject to the two next following Rules the "oposi- 
 depositions taken upon any such oral examination as afore- to"}!© t'akeu 
 said shall be taken down in writing by the examiner, not ''"^^"• 
 ordinarily by question and answer, but in the form of a 
 narrative, expressed in the first person ; and when com- 
 pleted shall be read over to the party examined, and shall 
 be signed by him in the presence of the parties, or of such 
 of them as may think fit to attend. 
 
 («) In case the party or person examined refuses or is signing de- 
 unable to sign the depositions, then the examiner shall '"*^'"°"''' 
 sign the same ; and the examiner may upon every examina- 
 tion state any special matter to the Court if he thinks fit. 
 
 i« 
 
494 
 
 Rules 
 602-604. 
 
 Taking 
 down qiicK- 
 tioiiH. 
 
 Sbortliaiul, 
 
 !■ y il dlctl fU.-, K rfl' /t « . 
 * (jUGHtiOll 
 
 J -* swer. 
 
 // copy to 
 
 ■t<*ifv< ^ ■/ti'iiave effect 
 ^ ?,i-^^^.'"'^ original 
 
 MISCELLANKOUS PROCEEDINGS. 
 
 (i) It shall be in the discretion of the examiner to put 
 clown any particular question or answer, if there appears 
 to be any special reason for so doing, and any question or 
 questions objected to shall at the request of either party be 
 noticed or referred to by the examiner in or upon the 
 depositions ; and he shall state his opinion thereon to the 
 counsel, solicitors, agents or parties, and if requested by 
 either party, he shall on the face of the depositions refer to 
 such statement. K. S. 0. 1877, c. 50, s. 164. 
 
 503. In case of an examination before the trial, or 
 otherwise than at the trial of an action, if the examining 
 party desires to have such examination taken in shorthand, 
 he shall be entitled to have it so taken at the place of 
 examinatioiv.except where the Court or a .1 udge sees fit to 
 order otherwise. J. A. Eule 219. 
 
 50*S. Where an examinjatiou in a cau^e or proceeding in 
 any Court is taken by me 'examiner,, or any other duly 
 authorized person, in shorthand, the examination may be 
 taken down by question and answer ; and in such case it 
 shall not be necessary for the depositions to be read over 
 to, or signed by, the person examined, unless the Judge so 
 directs where the examination is taken before a Judge, or in 
 other cases unless any of the parties so desires. 
 
 (rt) A copy of the depositions so taken, certified by the 
 person taking the same as coiTect,^-^shall for all purposes 
 have the same effect as the original depositions in ordinary 
 cases. 41 V. c. 8, s. 8. 
 
 tiSSBtobo •'5^4. Wherever, by virtue of these Ilules, an examina- 
 returned to tion of any party or witness has been taken before a Judge 
 ^°'"'*' of the High Court or of any County Court, or before any 
 officer or other person authorized or appointed to take the 
 same, the depositions taken down by the examiner shall, 
 at the request of any party interested and upon payment 
 of his fees, be returned to and kept in the crfice of the Court 
 in which the proceedings are carried on ; and office copies 
 of such depositions may be given out, and the examinations 
 and depositions certified under the hand of the Judge or 
 other officer or person taking the same, or a copy thereof 
 certified under the hand of the proper oiScer, shall, with- 
 out proof of the signature, be received and read in evidence, 
 saving all just exceptions. K. S. 0. 1877, c. 50, s. 165. 
 
 Office 
 copies. 
 
PRODUCTION OF DOCUMENTS. 495 
 
 Wlu'if 11 (li'fciidiuit, iK'forc <l»'livfi-v of (lefi-iiof, obtaim-d an ordt-r for cxaiiii- Rules 
 iiatioii i)f an otticer of the |)luiiititf for discovery, it was iicld tliat tlic dcixwitioiis 605-B07. 
 tukcii tUKlcr tlu' order might Ik- reiul l>y tin- defendant an evidence at tlie trial : 
 iliiiiiii lidiik V. SUtrrx, 13 1*. U. KW. 
 
 505. Every Judge, otticer or other person taking exam- iixaminerK 
 inatioiis under these Uules, may, and if need be shall, make a'^peoiai * 
 a special report to the Court in which such proceedings are 'ti7e°cou?t. 
 pending, touching such examination and the conduct or 
 absence of any witness or other person thereon or relating 
 thereto; and the Court shall institute such proceedings and 
 make such order upon such report as justice may retjuire, 
 and as may be instituted and made in any case of 
 contempt of the Court. B. S. 0. 1877, c. 50, s. IGO. 
 
 50<t* Any person may, at the trial of an action or issue, ran of ex- 
 use in evidence any part of the examination of the opposite to'be uvi- 
 parties ; provided always, that in such case the Judge may ^°^^^- 
 look at the whole of the examination, and if he is of opinion 
 that any other part is so connected with the part to be so 
 used that the last mentioned part ought not to be used 
 without such other part, he may direct such other part to 
 be put in evidence. J. A. Rule 239. 
 
 TliiK Hiiji is tlie same in snlwtance as the Ivijr. I!. 1«7"), O. 'M, r. 2\} (18K3, R. 
 'M)), and is an luhiptation of tiiat Hnle (which |)nivides for an examination on 
 intfrrotfatorics) to tiie case of an examination viri'i rurr. In the C'onrt of 
 Clianoery of this Province, and in the Connnon Tiaw CoiirtH of hoth England 
 itnd Ontario, a party coidd use no part of tiie examination of his op|M)nent 
 without usinj,' the whole. The conse<|nenc(i was that one of the great uses of 
 an cxauiinatiou of a party, viz., the saving of expense l)y jiroving by iuhnission 
 tilt; facts nut rni/li/ in //{.•<iiiiti , was prevent«'d ; iis such a<hnissions in tht^ cxainin- 
 iition of ten st(MMl side l)y side with other statements which the examining i)arty 
 amid not safely make part of his case. 
 
 See /,«(// V. /w7i »)<(/,//, .V) Tj. T. N. S. 'M, in which miiler the (corresponding: 
 Kiiglisii Rule it was .saiil tliat when an admission is read everything ongiit to he 
 reiwl wiiicli is fairly connetrtcd with tliat atlmission. 
 
 Where the plaintiff, without objection, piit in the defendant's de)><)HitionH 
 and referred to certain parts, and tin- .fudge in charging the jury referred tiy 
 other i)arts, it was held that lie oonld pmiH-rly do so, :'.,■. the whole dejxjsitions 
 were used in evidence ; hiiHiuill v. stuplitou, 12 Ont. ::iO(). 
 
 Ttniay he (>hserve<l that this Hiih' s|M'aks ''of the e\ami)iation of the oppo- 
 ii\tv jHirliis;" nil officer of a company who is not himself a party, dotss not 
 ctrictly come within the terms of the '.'{k/i. See notes to Jiiihn oOl'aiul 1K7. 
 
 9. Production and iNsPKcxmN of Documents. 
 
 507* It shall be lawful for the Court or a Judge at any oiKcovery 
 time pending any action or proceeding, to order the pro- after ciMe 
 Auction by any party thereto, upon oath, of such of the°y.'**"^" 
 documents in his possession or power relating to any 
 matter in question in such action or proceeding, as the 
 
 •^ 
 
 -t,^- 
 
496 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 JluIeSOS. 
 
 ■■* , ■■■( 
 
 Inter- 
 pleader. 
 
 Order for 
 production 
 of docu- 
 ments. 
 
 Court or Judge thinks right ; and the Court may deal 
 with such documents, when produced, in such manner as 
 ajjpears just. J. A. Rule 221. 
 
 Tlic same iw tlif Eug. \i. 1H7">, O. 31, r. 11 (18S3, H. imi). It cimbles tb 
 C(«irt <ir .ludpe to order production iit any time during the pendency of tho 
 action or proceeding. The next /lule, .OOS, enables either jmrty, after the defence 
 is delivered, or, when the application is on Iwhalf of a plaintiff, after the time 
 for delivering the defence has expired, to obtain an order of counfe for this 
 purjKjse u|K)n pnrrijti-. 
 
 In Kngland, wiiere there is no such Rule restricting the time for the onlerto 
 pnxluce, and the order is on s|K'cial application, i\w current of deciHJon in in 
 favour of not allowing a |)laintiff <Iiscovery Ix^fore statement of claim, nor in 
 general Ix^fore defence, nor a defendant before defence delivered : see ('nnhint. 
 rrmMiwk; 2 Oh. I). 140; Hmicork v. ativriii, 4 Kx. 1). 3; WihxUr v. Wliniull, 
 1.5 Ch. D. l-3>; Afil/or v. Thfmpxon, 4!» L. T. N. S. 222; but the ('<iurt lias a 
 discretion to dire<;t earlier discovery with any due restrictions : KiiihUm v. 
 JiuxwII, .57 L. T. N. H. 1(27. 
 
 Kvidence will not be entered into on a motion under tliis Rnh; Init tiie Court 
 •will form its conclusions upon the pleadings and any proceedings already taken: 
 Jiinmiufi v. Fahnntith, 3" Cii. I). 234. 
 
 Under the jiresent Rule production by defendant was ordered, In-foii' defence, 
 where the plaintiff had been awarded an injunction restraining the sale (if chat- 
 t<^ls and had Ix-en put on terms to ^o down to trial, at sucli a timi! tiiat it was 
 probable that the case would be tried before production could \w (ibtaiiied in 
 the ordinary way : < 'nuts v. ( 'im/.i, 3 C L. T. 314. So, under a similar Irisli Rule, 
 where it was required by defendants to ascertain what danuige the |)iaintiff had 
 sustained, with a view to i)avnient of money into Court: Mediiw v. 
 MclHarmiil, 10 L. H. Ir. 37«. See also Joiirdain v. Piilmtr, L. I{. 1 Kx. 102; 
 lie Sutcliffe, 50 L. J. Cliy. .574 ; 2!) W. K. 732 ; 17 C. L. J. 307 ; IIVi;//r v. Ahrem, 
 2(! Ch. I). 717. 
 
 In interplea<ler proceedings and the like, where there were no jtleadiiigs, tiie 
 provisions of original /(iilr 222 {now .508) did not in terms ajtply, and priKluction 
 of documents wa.s sometimes ol)tained under original Ku/c 221 (i.ow ;507) : c'.o 
 I'lnliptis v. I'liilliips, 27 W. R. !t3!t : 40 L. T. N. H. 815 ; and Il7/(7c v. Wnth, 
 31 L. .1. C. P. 381 ; but in Dominion K ,(■ J. Co. v. Kilroi/, 12 P. R. l!t, it was held 
 that after the delivery of an interpleader issue, an order for jmHluction might 
 issue on prnciiti; and sucli order shoidd be issued, and the record passed, in the 
 nrincijial office at Toronto, as no locality is i)ointed out by the usual proceedings 
 in interplejwler. Ritic .508 now in terms ap|)lie8 to the parties to an issue. 
 
 SOM. Any party may, after the defence is deUvered, or 
 a plaintiff may, after the time for delivering the defence 
 has expired, [a) | and any party to an issue] may, after the 
 issue has been filed, obtain an order of course upon jmecipe 
 directing the adverse party within 10 days after the service 
 thereof, to make discovery on oath of the documents which 
 are or have been in his possession or power, relating to any 
 matters in question in the action ; and to produce and 
 deposit the same with the proper officer for the usual pur- 
 poses, and such party shall make discovery and produce 
 and deposit the documents according!}', without further 
 notice. J. A. Er.le 222 and 513. See Dale v. Hall, 9 P. R- 
 106. 
 
PRODUCTION OP DOCUMENTS. 
 
 497 
 
 ((f) Tlii'He wtu'dt^ iiH'iui that as oaeh ilffendant iiutH in h\» ({ofciic*; or tli<i tiinu RuIsBOt. 
 or (Idiii),' HO nxpirt'H, tliat (Icfeiulaut Iwcoiiiew liable to i^ivv and entitled to 
 obtain pnKliiotion. 
 
 The words in Imickets are new. 
 
 See notes to Uiilm 507 and 511. 
 
 In an interpleader proceedinff the ordi'r will lie isMued from the proper princi- 
 pal oftice m Toronto : see JMiiaiitioa S. il- /. Co. v. Kilroii, \[i W K. IS*. 
 
 /^(/f.")<IH varies from the Kng. K. 1875, (). 31, r. 12(1883, K. 354), and from the "Adverse 
 practice under tlie Connnon Law I'roeedinv Act, Wnt ajfrees substantially with party" to 
 thi'practiee in Chancery under Ohy. (). 134. The Knt'lish Kule is not limited as produce. 
 this I'ltli is, with respect to the time of olttainin^j the order ; an<i the Knglisli 
 decisions tiiereon, such as llnioii lidiik nf Lunilnaw Miiiihi/, 13 Ch. 1). 23! t, etc., 
 will therefore not ajiply here. Nor does the Kuf^lish Kule |H'rmit the order to 
 IxMihtained on /iriiri/ii, but recpiires an application, though not necessarily on 
 affidavit, which, however, the .ludge may recpiire, if lie setfs tit : Jitknxmi v. 
 .s'i,(iV/(, 3(i L. T. N. S. 741. 
 
 The Kng. K. 187.5, (). 31, r. 1 (1883, U. .343), not iwloiited by the Ontario Act, 
 provides for the examination of the "opposite party or parties" by interroga- 
 tories; and it has lieen held, that a pei'son whom defendant, by his counter- 
 claim, had made a defendant, was not "an opiM)site party " as In^tween him 
 and the plaintiff, so as to entitle him to examine the plaintiff under that Rule : 
 MoUiin V. Killiii, 15 (Jh. 1). I(i2 ; and theie is no jurisdiction under the Knglisli 
 Rules to make an order for discoverv, e.xcept as U'tween opjiosite [lurties : 
 nnmn V. II (itkiiix, Iji t^. 1}. I>. 125 ; see Slniw v. Smith, 18 t^. li. 1). l'J3 ; third 
 (Mirties may become in the jiosition of defendants and thus l)e under the Kule : 
 AWfii V. Wiiirdiilc, 35 C'li. I). 287. The Ontario Huh: 508 entitles any |tarty to 
 pnKliiction from " the adverse party : " and Itulc 487 enables a party to examine 
 for discovery "any party adverse in |)oint of interest," and it is probable that 
 production nuiy Ik- obtainerl under this Ride from any party who might ho 
 Ix) examined : see notes to Jtii/r 4H7, mtfira; mid Hii lailtoii v. Nolt, L. R. 1() P^q. 
 112; Kniii.'ihi v. WuLrlMd, 3!» L. J. Chy. 827 ; 22 L. T. N. S. (>45 ; 18 W. K. 884 ; 
 and lirii/li'iiii v. Bnuixun, 3 C. L. T. 311 , where a defendant obtained pnKluction 
 from a co-defendant adverse in interest. 
 
 ()nas|)ecial application, prfnlnction may be obtained under Ride 507 from 
 "any party" and at any stage, i.ii. Imfore defence: Mel/or v. TlwiapHon 4(1 
 L. T. N. .S. 222. 
 
 In a |)etition of right the Crown is entitled to discovery of documents from 
 the suppliant : Tuiii/ini; v. The (^iiceii, 4 K.x. L). 252. 
 
 Under an order obtained by one defendant, other defendants cannot compel 
 production : Sfi/Mnnr v. Lnujwiirt/i, 3 Cliy. Ch. 112. 
 
 I'nte M) jirovides that a third party, who has been sttrved by the defendant, Third 
 und«r Rule 3211, and has appearecl, shall for all puriwHes of and incident to the parties, 
 pnxluction of documents, and examination, be, as between him and such defen- 
 dant, ill the same situation as a defendant. A third party so stsrvefl and 
 apiHjaring, is not on that ground entitled to an order f(jr production as against 
 the plaintiff under thin Rtdi: ]5ut if dii-ections are obtained under Rule 3S2, 
 allowuig him to defend as against theolaintiff, he is then in the same situation, 
 with resix-ct to the plaintiff, a.s any otlier defendant, and may obtain fi-oni, and 
 be com|)idled to give discovery to the plaintiff: McMlixter v. The /ii.shnj) «/" 
 R/idmler, 5 C. V. D. 1!»4 ; Kdcn v. Wetirdide, 34 Ch. 1). 223. 
 
 Under an oiiler for production by the plaintiff, the plaintiff on the n^cord is By whwm 
 the in-rson to nmke the affidavit, aiid an affidavit from some lieneficial plaintiff affidavit to 
 IS not a compliance with the order : Wih.m v. Rii/a/uvich, 7 Q. B. I). 5r)3. be made. 
 
 \yhpre a plaintiff of unsound mind sues by a next friend, the defendant is Infant, and 
 entitled to an affidavit of documents mad(! bv the next friend, or by some one lunatic, 
 acquainted with the facts : rravLsn v. /Ml, 8 1'. K. m). In England, Uif/i/itimm plaintiffs. 
 V. Had, 10 Ch. D. 235. to the same effect was disa|)i)roved of in hi/ke v. 
 Slephens, 30 Cli. D. 18!). A motion by the defendant was granted, that the next 
 friend of an infant plaintiff might be ordered to make an affidavit in referenct< 
 J.A. 32 
 
498 
 
 Rule 608. 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 1 . i\ . n. ts.) ; w . i\ . inn.i, oil ; irj ji. .i . uny. ;i'.«> ; aiui m/hr v. N/fiiii^m 
 I). lH!t, (Icddfd under tin- Kiiglish Uult-H 1875, <). 31, r. 12 (1W3 1{. a-)4)! 
 
 tiptcd luTc, Idit wliieli iirovidi'H that any ' party ' may aiiply to a .Iiidjfc 
 order directing any (itlier 'party ' to the tuition to make fhwovcry dm 
 
 |)ossesKi(iii, etc.. 
 
 'K' 
 
 
 Official 
 liquidator. 
 
 Affidavit. 
 
 Affidavit 
 where no 
 documents 
 produced. 
 
 Production 
 before Re- 
 ferees, or 
 Masters- 
 
 to documents in Iuh poMHeHsion in ('nnrr v. Hank of Irelund, 5 Ir, R., Kq. .'578; 
 hut Kce hii/rnm v. Litt/r, 11 t^. H. \). 2.")l ; and Jlc i'nvuvlUs, J.nwtiw v. Klicfi 
 48 L. T. N'. H. 42.5; W. N. 188», ()() ; .52 li. .1. Chy. 3!)!l ; and /X/Xv v. .SV,. ,/,,„; 
 
 mch.i). ' ■ '■- ■ 
 
 not a(lo|i 
 
 for an 
 
 oath of the dcwumentN wliich are, or have l)een, in his 
 
 relating to any matter in ((ueHtion in tlie action. 
 
 Wliere it \h nought to remove a next friend of an infant, he cannot Ite ciiiii- 
 jKilled to givedis(!(ivery under this Rnli' for thin pur|><iHe : Jir CurfK'lli's, /mii-Ihii 
 V. Klwfx, 31 W. R. 414. (For the concluHioii of that matter nee .50 L. T. N. S 
 703.) 
 
 The ne.\t friend of a married woman in not Ixmnd to make the uttiduvit- 
 Brotnt V. (Jajinm, ii P. R. 2()3 ; Dan. Pr. 5th ed. l(i«2. 
 
 In an action hy a h j'iband and wife, tlie wife suing in resiHJCt of her separate 
 jtroiKjrty and without a next friend, they must make afhdavits us to what 
 ilociunonts they, and eacli of thtmi, liave, an affidavit as to what they Imvc 
 jointly not l)eing sufficient : Femlall v. O'Coiiui'll, 2<J Ch. D. 8!»!). 
 
 In other cases, wiiere a ])laintifT cannot niakean affidavit, some proper iierscm 
 must do so for the plaintiff, and pr(K;ee(lings wi.l \m stayed meanwhile ; AV/jnt- 
 lie of l.ilicria v. Hoiie, 1 App. Gas. 13!) ; see /'n'uleau v. l.'. S. Amvviat, L. K. 
 2 K(i. m.) ; r. .S". Amt'i-im v. Winjner, L. R. 2 Chy. 582 ; /'rimrss -/ Wules v, 
 Karl iif Liirrjjool, 1 Sw. 114 ; see also notes to Jlnlis 507, 511. Uiit it has been 
 held that i)roceedings could not be stayed by a defendant in an action on u 
 marine iM)licy until the plaintiff hivd obtained an affidavit of docunients from 
 his assignor, who was not a party to the suit, nor under the plaintiff's contnil, 
 within the jurisdiction : A'/vcc/- v. Hiirnivs, 2 l^. B. D. (524. 
 
 As to production of documents by an official liquidator : see Re MniuM 
 Society, 22 Ch. D. 714. 
 
 See Riik 513 as to the form of the affidavit to be made in pursuance of the 
 order to pnxluce. 
 
 As to what documents a party is bound to jtroduce, see notes to Rule 1513. 
 
 An affidavit must l)e made, though the party haw n(j d<K;uments to produce, 
 It should not be nuvde l)efore the onler to priKluce is issued : Kenned if v. Royn) 
 Ins. Co., 3 Chy. Cii. 48!) ; see iJobnoti v. J)o/,.ion, ' P. R. 2.58 ; and it should not 
 in suchjcase refer to schedules containing no documents : see Roijern v. L'rmk- 
 .iluink; 4 C. L. J. 45. 
 
 Where a claim has been ordered to l)e tried Ix-fore a Referee, under the Act. 
 the Court or .ludge has still jurisdiction over discovery : Re Leii/li, Raircli/ew 
 fA-ii/h, 4 Ch. D. (Mil ; Jiaurillier v. Mi/er.s, 17 Ch. J). a4(), (ituirc whether the 
 R«?feree h.is any such iM)wer. See notes tt) Ride 5.52, and Coe.hrune v. Morrimm. 
 10 P. R. (i(MJ. 
 
 IVobably orders on prirripe to produce imder this linlc, as under Chy. (J. 0. 
 134, are for the i)urpo.ses of a trial only, and «ill not be enfoixjed for the pur- 
 1 (OSes of a reference. In the latter case the Master to wliom the reference i'' 
 directerl may Ix' aj)plie(l to for a direction for production: Hililerlinmi 
 V. McJJotwKf, 8 P. R. 38!). 
 
 Wiiere an action and all matters in difference had Ijeen referred liy consent, 
 and the plaintiff afterwards api»lied for jiroduction, it was held under Kng. K. 
 1875, O. 31, R. 12, that the Court hod no jurisdiction to make the order, there 
 Ix'ing no longer iM'fore it any matter "in (juestion in the action " within the 
 meaning of the Rule-. I'enrice v. H'ilh'dinK, 23 Cli. 1>. 3.53. 
 
 In an action on a marine i)olicy, an order that the plaintiffs and all other 
 ixTsons interested, produce the snip's papers in acconlanee witti the i)riictiee 
 in that iM^lialf before I'lir Jwlinitnrc Act was held not suiMTseiied by it. 
 and therefore proper: Chimt Trons-l'iuilir S. S. Co. v. Commciriiil I'liom, ^ 
 Q. R. I). 142. 
 
 The right to discovery of d(x;uments is not enlarged by Thr Jiuliratinr Act. 
 and where a bill of discovery would not formerly lie, discovery of documents 
 cannot now be had, e.;i., in an acti<m to recover statutory jtenalties : //«"• 
 
PRODUCTION OF D0CUMKNT8. 
 
 490 
 
 )i,«r/s V. Will ill Ills:,,,, 10 (i. U. I). 4.V.»; Miirti), V. T,riii/i<;; 'M \V. K. 31."); Rules 
 Whilili'i/v. liiirli-ii, "ill L. J. t^. 15. ai2; hm> also .l(/('/«/.s v. liiilhuj, IS (.2- U- "• 809-511. 
 Wl.t ; ./''/'<"' V. Jitiiiit, 22 <.^ B. I ). 42i'). 
 
 DiH'iiiiii'iitH pnidiict-tl, limy lie (ii'<li<r<-(I to he ()it|M)Hito(l, urdiiiiirily in thi; oHice Deiionit of 
 ill wliicli tlif |)r(K'('c(liiijfN tire liciii},' taken, (and tlic form of order iHHiii'd directs iluciiiiitintK 
 tlii'iii til lie deiKMJted witli tlie atlidavit on lU'iMliiL'tion), lint not in tlie caw of 
 liiiiiks in daily UNe : Maidniiiiell v, Mch'nii, 2 (Jliy. Gil. 141 ; tliougli iiisiM'Ction 
 (if tliese iiiiist 1k' allowed at reasdiialilf^ tiiiieH : J/oiin/i/ii v. H7(,(//<', (i I'. I{. \V,i. 
 In iiractice it in not the cviHtoiii to depoHit the dociiinentH, unless s|ieciidly 
 mjiiired liy the opixisite party, and u|Kin an undertaking iM'iiig ){'i^'t'ii to allow 
 iiisiK'C'tion when re(jviired of iHioks in contitant u.se, the deposit of them may 
 lie (litiiieiisfd with : i<r /i'w.s, 5 Out. App. 82. Where necessary any convenient 
 plivce for inspection may Im^ named by sjMicial order: see Ilium Inn v. While, 
 Mfirii ; UiiIiIhU v. Cainiili.i/,, 3 Sw. 2()7 ("), in the e.ise of Inioks in daily 
 \\!ii' ; I'ivkIiikii v. t'lilrhfsli'i; 2\ Ch. D. 37<>, old reciirds and Ixxiks ; Witijner 
 V. Miisoii, () 1'. H. ISH, dcciiments in which other persons were interestJKl. 
 
 Am to restorin^f to parties documents left for inspection in the otficc of a 
 Master, see Ihiiliiiij v. /)<i,-liiii/, 10 J*. K. 1. 
 
 50SI. A third party who has been served by a defendant ru«iMo» "' 
 under liule 329, and has entered an appearance, shall, for party 
 all purposes of and incident to the production of docu- ae'fendant* 
 ments, mid examination, be as between him and such 
 defendant in the same situation as a defendant, and the 
 defendant serving him shall, for the same purposes, be 
 in the same situation as a plaintiff; the time for taking out 
 an order for production or for examining shall be after 
 the party so served has delivered a deieuce, or where 
 the application is on behalf of the defeuiii'.nt so serving 
 such third party, the time shall be after the time for 
 delivering the defence has expired. J. A. Rule 223. 
 
 The object of this /{ulc. in to placoa third party who has been served by a 
 flefeiulaiit, in the same Hituation as a defendant, for the purpo.se of Jiule .50H. 
 There is no corrospondinjf /tiilr in Kiiglaiid. As to the position of the 
 lilaintitf in regard to third parties: see iMcMlislfr v. Bishaji ,,f Riu-hi'Mir, 5 
 C. P. 1). 1!»4; Eikn v. Wi'iiiilitli; .S4 ('h. I). 223. and note to '/lnh' .TOH ; see 
 also liriiilli n V. aiiirkf, !l P. K. 410, where though there was no direct issue 
 lutweeii the plaintiff and a third jiarty, yet as tlie latter \\m\ all the rights of a 
 <iif"ii:laiit, and virtu;illy took his place, the pl.iiiitiff wa> allowed to e.\aiiiine 
 him under Rule 510. 
 
 510. A person for whose immediate benetit an action is i'*'^''^'^'^^^ j 
 prosecuted or defended is to be regarded as a party for the a party for 
 purpoHe of production of documents. J. A. liule 224. I'mrroses. 
 
 S>e mites to Ruh 4.S,S and liiicUiij v. Clurkv, xupra. 
 
 > Where the party required to produce documents is Am-invit 
 ration aggregate, the affidavit shall be made by one uonViy a" 
 
 511. 
 
 a corpori 
 
 of the officers of the corporation, and his affidavit shall J^ti'^j;"'' 
 have the same effect (as nearly as may be) as the affidavit 
 of a party, unless where the Court or a Judge seei reason 
 for holding otherwise. J. A. Rules 225, 226. 
 
 «ss* 
 
600 
 
 luTSCELLANEOUa PROnEEDINOS. 
 
 Rules 
 612, S13. 
 
 TliiM Half in nut ainoni^ the KnglJNli RuIoh, Ijut Ih in confonnity witli wiiat 
 wivH till! procticc in Ciiivnct'ry : hw Dun. Prac, 5th ed., p. 1077, »n(l cumcm there 
 cited. 
 
 A form of tht' atHdavit liv tht- officer in ffiren in tiie Ap|ienili.\, No. 111. Tiiis 
 iitti(hivit niiiMt lie niiule !>>' the pi'o|H'r oft)(M'r of the Oo., ni C(ini|)lian('e w jtli uii 
 (irder in the iiMUiil form. That npe('iall,\ applicable to a (!o. nnder tin' toriiicr 
 Chancery practice |see Ijimlstni t'rlnthiim, fir. v. I'lin/it; (> J', li. 11(1), is imt 
 necesHarv : Hdi-risini v, li. T. Ilil. Cn,, 2 C, L. T, 104 ; nee also Cooliv \. Ihrimk 
 Utrums/ij/, (/(/., \V. \. \H-:,, a'Ji).' 
 
 Where a hill wan tiled iiy a Kepwiilican govermnent, the defendant, ImviiiK 
 |)nt in a Hufficient answer, wan held entitled to the nsiial affidavit of dociniiciitu, 
 to he made hy one or more of the MiniMters or officers of the ( Joveriniiciit; 
 Ilc/iiililicii/ Li/ifriii V. Iiiijii'iiiil liiii(h\ fj, H. l(! K((., 1711. 
 
 .Ah to what )«'rsons have iieen held to 1h' ofticer.s within siniiliir UDidsiii 
 R. S. (). (!. .")(), s. 1.-)ti (now Rulr 4H7), see notes U> lii'lc 4H7. 
 
 It was held unreasonuhle to r4'(iiiiri^ a defendant Co. to answer iiitcrnifrn- 
 tories throiitfh a formei' director wlio was ititerested in tiie plailifitfV Cn., tlii' 
 Court intimating; at tlie same time, that such person nii^ht Im' made m ilcrcn- 
 (hint, and discoverx thus obtained : .Minir/ii's/rr Vnl ilr Ti-ums I'mumi Cn. \. 
 Sldiiil, W. N. 1882,127. 
 
 *SIS. The doponcnt in evovy afhilavit on production sliaii 
 be subject to cross-examination. }^('n\ 
 
 ThiH, though not allowed in Kngland (see Mmihii v. Hcn'ltLc, S \Mi. 
 M. & fJ., 470; /A/// V. r,;iniin,, 2!< VA\. I). WVA; .Xlilinth v. \Vh,;h;; 17 
 Q. W. I). 101), was formerly the Chy. |>ra(!tiee in Ont. : see /IcIikdii v. IhJisuii, 
 7 V. R. 'ir)(»; hut in l''/l/)i v. /If/dii, 10 1'. R. '23.5; it was held that tins 
 Chy. iiractice was not continued under the Jiul. .Act. The present Jtitir wiw 
 therefore passed. It is nevertheless desirahle to ])ost|K)ne exaiiiiniitmn f(ir 
 diHCOvery till after jiroduction, a.n the costs of two examinations will net l)fl 
 allowed without gcuKl reason : see Loi'cr!/ v. Wn/O', 10 P. R. 488. 
 
 o.f'roduc- •'****• The affidavit to be made by a party against whom 
 tion, form an Order for production has been made, shall specify which, 
 if any, of the documents therein mentioned ho ibjei 
 
 NO. 48, in 
 bances niav 
 
 CroBH-ex- 
 amination 
 of (lepo- 
 nent. 
 
 produce, and said affidavit may be in tho T 
 the Appendix with such variations as c 
 require. J. A. Rule 228. 
 
 Corres|X)nds with the KnR. R. IHT't, <). 'M, r. 13, (188;*, ,, .m). 
 
 See notes to Iti'le 50. 
 
 The fonn given in the Schedule should Imi followed, " The st.itutory fonn 
 is the right fonn and is intended to lie the common fonn. Tlu^ .iffidavit of 
 doctnnentH is intended now to he exhaustive, and the fomi given in the Act is 
 go" : ;)*>/• Lindley, .T., W. N. 187(i. 3!).. 
 
 For fonn of affidavit where two plaintiffs have different interests, sef? Femhdl 
 V. (rConnell, r>2 L. T. N. S. .WS, in not»i to Rule 508. 
 
 What must Discovery and Production of Documents Generally.— Courts of Equity 
 be pro- have alwiiys coini)elkd the pnKluctionof documents. The Common LawCeurtu 
 tluoed. did so to a very limited extent, but tlus practice was extended hy stiitutP : 
 
 R. S. O., c. 50, SB. l(ii», 170 ; 41 Vict. c. 8, «. ». And now, under Tkf .hn/iculure 
 Act, the right is regiUated by the rules previously existing in the (VuTt of 
 Chancery : Andersnu v. lUiJik of British (Mum/>in, 2 Ch. D. 644, 0,58 ; and the 
 Common Law rules are entirely at an end : Cotton, L..T., in kade v. ./acuns, 
 3 Ex. D. 337 : explained in /Udder v. liridges, 2« Ch. D. 29, in which it was 
 decided that the defendant has no larger right to discovery than the plaintiff. 
 
PRODUCTION 01' DOCUMENTS. 
 
 501 
 
 PnidiK'tinii in a iimttcr of ri||(lit («iil)jt'ct to any riijlit. of privilciff or protection) Kuls B13. 
 aiiil is not a matter in tiie (liscretion of the Coni't : Itimlrmt v. W'hitv, 1 (^, II. I). 
 •US; .l//"(//i/ V. Hi'n;;ii, W, L. T. N. H. ^51. 
 
 A plea of pnroliase for value without notice was fornieriv availa))le in 
 Cliaiu'i TV. in a suit for <liMi;<mi'v in aid of priK'cedinK-t nt law Imt, was not avail- 
 iilile aKa'msl either (lis(M)verv or relief, in (rases in which the (Jourt of ('iiaiu'eiy 
 |i:t(l ciiiKMirrent jnrii(|i<;tion. Sec. 52 (<)) of tiie .\ct therefore does not protect 
 (Iffeniliiiits who set lip siicii a defen<M' from givinii discovery, as tiie llig'h Oonrt 
 (iocs lint now exercise the former auxiliary jiirisdi(!tion of the Oourtof Chancery, 
 iiiit lias complete jurisdiction over the whole action : /Ciiiwfi-sini v. //(//, 113 
 Apii. Chs. 3(K». 
 
 Kvery material document (see /tnri</,r v, (Inihuiii, 7 <^ H. 1). at p. -Ill) All niii- 
 liiiist l>e pniduced, unless it is shown to Ix- i>riviU'>,'ed ; though, where tlm '"rial dixMi- 
 iimteriiility <lepeii(ls uiion the determination of a (piestion in dispute, and the }'"'"'■'' """ 
 
 !■ ' I i ; 1 1..*.. ,1 i. .;,!. i.i. ^... ..I.I.. .... A.. 1*- 
 
 (lisi'iiverv soii);ht is calculated to cause consideralile troiiiile, or to prove o|ipres- irrouiKl o 
 Hive 1111(1 vexatious to the party from whom it is soiiKht, the Court may act in-ivileKe 
 
 lUKS SOUlll 
 
 of 
 
 - ■ ,. .- " ; — - ; - - J' - -^ l"''vileKe 
 
 n|Mm /i'"/( "ilK, and postpone the discovery until the (piestion has Im-cu deter- niado out 
 mined -. Wnml v. Ainilii-lhiliini llmih, 'M li. 'I\ N. S. iJiVi, See also notes to 
 
 Itiih .Mil. 
 
 It is the (hity of a party, who, after tiliuK an attidavit, discovers a document 
 iif wliii'li liis oppi'iieut has ii rijfht t(» have ins|H'cti(in, hut which is not dis- 
 cliwi'il ill the Sell! hile to inform his opiMinent of the discovery, either liy a 
 su|)|il('iiieiitary affidavit (the jiroper c(Mirse), or at least liy notice : Milchfl) v. 
 
 su|)|i|i'liieiitarv attidavit (tliejiroper c(Mirse), 
 lu>,lni Mil in 'Cnllin-ii Co., \ Cab. & Kll. 21 a. 
 
 'i'lie general law ai>|ili(!alile to dis(!overv ffoverns in patent cases. The dt^fen- 
 (laiit must disclose tlie particular lines of attack on the plaintiff's patent which 
 arc ciiiiteiiipliited, but nee(l not so individuali/.e persons allejfed toln' (irior u.sers 
 as till iialile the plaintiff to know the (lefendant's witnes.ses : Smith v. (Irrrii, 
 10 1*. K. 482. 
 
 Kvciy tiling,' which will throw lijflit upon the case ; lliitiliiiisini v. iwlin-er, 
 1 <^>. IV I). IIW ; or which '/'".'/ help the case : Itiiiii v. Iliiiiiihin, 7!' L. '1'. tlour. 
 litli ; I'li.nrniii v. I 'iiiiifi'ini, 10 1'. H. r)22 ; ' '(iiii/iiii/iiir Fiii"ili'i<'i'i', I'tc. v. I'li'uriilli 
 
 Uihiiin I'll., 11 (^. ]{. I), lit p. fi.'}, is /iiiiiiii J'liiic subject ti pnxhiction and 
 
 ins|iectii)ll. 
 
 Iit'tters written, tliouKh not mailed, must be priMlueed ; the mere fact that 
 tlicv Were not forwarded is no ki'<»hi(1 of exemption : ('iniifrun v. ('(iiiii'nni, 10 
 P. H. .VJ2. 
 
 Discovery of documents clearly immaterial to the (piestion at the trial will Materiality 
 not lie eoiupelled before trial : se»' note p. iVW. 
 
 Tile f'niirt, however, does not in K<'H'''''il distin),'uish nicely between the 
 materiality of the discovery to the matter to be tried at the hearing, and by way 
 (it (.■iiiise(|ueiital relief ; still if the discovery is such as might be u.sed to the 
 liiejiiilice of the party, irrespectively of the suit, the C^iurt will liMik narrowly 
 til tile i|iiestion, whether there is reasonable prospect of it being of material 
 wTvii'e at the hearing ; Cun-iu- v. /'ititiiLiifi; L. U.~ ('liv. iK) ; //rm/li v. (iarri'tt, 
 4J J. Chv. 30r) ; 82 L. T. X. S. 45 ; Rnmhli,- nf <;,.sti> Kim v. /■:rl,ui,/r,; L. K. 
 
 1! i;.|. :tt. 
 
 A (lefeiidant is entitled to ins|(('ct documents evidencing the contract sued 
 (111, tlioiigh he does not admit their genuineness : linijiniiin v. Sdii/r.-., (i Ir. K. 
 C. L. Ill ; 1111(1 documents liearing iiiion the amount of damage though there is 
 nii(|iiistii)ii of liiibility to Iw triitd but assessment of damages only : /'ii/ic v. 
 A'W s L. H. (i(^ 15.242. 
 
 discovery was ordered Inifore decree as to nwtters which would be referred 
 t- a Master in MchiiiidJil v. McAftlnn; 7 C. L. T. 28, following /ilmcr v. Virasi/, 
 LK. IK'liy. (i!). 
 
 .\fti'r judgment for the )ilaintifT in an action for the infringement of a patent, luspoctioii 
 lie is entitled to insiwction of df^fendant's books, and to an account, although an 
 aplieal may be pending from the judgment : .Sj.W^y 
 2<l". 
 
 V. Kasterbrook, L. R. 7 Ex, 
 
r* 
 
 
 <5 
 
 ill 
 
 111! 
 
 ii. 
 
 I 
 
 502 
 
 Rule 613. 
 
 Informa- 
 tion to Vie 
 souRht by 
 
 Sarty ju-o- 
 iiciiij,'. 
 
 Difliculty 
 in obtain- 
 ing produc- 
 tion. 
 
 Udcnnionts 
 not in 
 (larty'siios- 
 Ki'ssion. 
 
 (^opies. 
 
 I'rivilefjort 
 (liicunicnts. 
 
 On grour.il 
 of j^niblic 
 policy. 
 
 InvciIvinK 
 party in 
 criminal 
 charge. 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 Discovory of the docunifiits must be g'ivcn, though the iiarty may imt Ik- 
 bound to pnHlucf tht-ni for insjM'ction : Riniiluld v. Furtenih, 3 K. k .1. 44; 
 Lnmriix v. Midi'i/, 5 .Tur. N. S. lllit; Mauhii v. Ikvii-h; 8 !>. M.k. (i. 47(i; 
 Kala V. Var,-iii\ VV. N. 1SK7, '2(i() ; Si-v lirilish Inirslnifnl ('». v. /-<■(/, ;{ ( '. I'. ]). 
 1«J(» ; and wee Oirrn v. W.i/ini, it Cli. I). '21t J{>- /'irh-rin;/, '2't Ch. I). 1'47. 
 
 Tlic iiarty making an afH(hivit on |>r(Mluction must, if ncccKwaiy, sf- k the 
 iieccHsary information from liis iircm>nt or formt-r agoi'ts : hlml of t.'/iuniiill \, 
 rraxcr, 2 Haiv !)!» ; MrliiU>-k ^. U. W. Ralhraii, 4 l)i-(i. & S. r>4-4 ; .1 //-/'-;■«/( v. 
 liiinh iif lli'ithh <'(ihiiiilil<i, 2 Oh. T). (i4-l ; sec ltii>:li<itliiim v. S/iro/i.shiii', lir., 24 
 Ch. 1). 110; S,iii//,in,rk v. (Jin,.'.; 2 <^ H. I). .'i21 ; liiMdnw v. Fishn; Kl 
 il. B. 1). Kil ; Mcp also Fmikcs v. IF--//', 2S ("li. I). 287. In an acti<)n on a ix.licy 
 of marine insurance, thi- dofeufhuits obviuned an order that the action sliould In- 
 stayed until tiie plaintiffs satisfied the ( 'i -.Tt tliat tln-y luul done all in tlii-ir 
 |H)wer to obtain imKluetion of the -!iip"s papers : West nj Hniiliiiiii llmik v. 
 Cinitdii Cii., 2 K.\. 1). -172 ; l)ut when liie person in whose control the docuniciits 
 were, was not within the jurisdiction and it was difficult if not impossilile t(i 
 obtain the discovery, the Com-t refused to stay proceedings : Frii.si'r v. /iiiii-im:\. 
 2q. \i. 1). (J24. 
 
 See Lull, Ion, Tllhiirif <£• S.iithiiiil 11//. Cu. v. I\irk\, T>\ L. T. N. S. .7)!l, wlii-iv 
 knowledge which might l.ave iM-en obtained l)y inquiry was contained in 
 n-jHirts which had been held iirivileged. 
 
 Mere dittlcnlty f)r inconvenience in giving dis(;overy, is no reason fur imt 
 giving it. TlniH a railway company was re(piired to give discovery of the 
 contents of books in the possession of them!<elves or tlu'ir agentsextendingover 
 a series of years, to shew the i-eceipt of goods siieeifieally delivered to tlii-ni fur 
 carriage : //<(// v. A. <(• .\'. »'. A'y. Co., So L. T. N. S. 848. See also Mnh„ss. 
 Hoiiih, 11 \V. R. 7!t2. 
 
 If documents not in the possession i/f a party an- re<|uired to be prudiK-i-il or 
 information respecting them given, the jiarty is t>ntitled to be indenniitied 
 against the cost of obtaining the documents, or tin- infoiniation : /A'/n'/v'- v. 
 Wli/iti; () P. R. 143; ll''llirll v. Ciisnoii, 12 W. R. 2(K». 
 
 .\ party wlio has a right to have- docunu'nts pivid- ,'d for his inspection lias 
 also a right to take cojiies of them r I'nill v. Priitt, 30 W. R. 837 ; ol L. .1. f'hy. 
 838; 47 L.T.N.S. 24!) ; W. N. 1882, 117. 
 
 The general ndes as to privilege in evidence, are ajiplieable in i-(-gard to |)rii- 
 tection from discovery : Wmliir v. /:,'. Inilia.i I'n.. 2 .hir. N. S. 4(17; ch-jtiw 
 Edmoiisiiii^ 22 Reav. Vl'>. 
 
 See (ireriionqh v. <liisMI, 1 M. & K. 1(H). 
 
 Privilege and Protsct.on from Production : 
 
 The following are some of tlie principal classes of <-ases in which doei'iiii-nts 
 need not be prixluced : 
 
 1 State <locunients a<'d the like, thi- pr<«luetion >f whirli is not in tin- imlilic 
 interest, and is against public ))oIi(-\-, are pi'ivilegi-d : Kniii v. /■'uri'i: \\ . N. 
 1877, 2()<i : .H7 I.. T. \. S. 4<;!» ; /J. M. S. /lr/l,;n/,/i,.„, ;\\ ].. T. S. S. 7-"i<i : 2.S 
 W. R. 2-18: .:4 L. J. .\dni. .f) ; llnmrss,',, v. W'linhl, 21 «^ M. D.r.O'.l. I'.iit it 
 tnust \^' stated in the affidavit how these are privileged : Kmii v. luirnr. xiqun : 
 and in such ease it is for the head of the deparfnent from which sucli docii- 
 ments are brf)Ught, not for the .lu<lge, to determine whetlier tin priMJiictiim 
 will be injurious to the public service : Hvi'ilh n v. MdutoKli, o Ont. 227 : W'"" 
 vcixii V. Wriiiht, 21 (.^ P.. 1). .Vlii. 
 
 2. Doctnnents the prod uc ion of whii!li would tend to involve the party iiiii 
 crinnnal charge, or to sidijeet him to a |H'naltv or forfeiture ; WilJi v. Kofi, :• 
 Kx. I). 23 ; /V.y/;rr v. ihrm, 8 (;ii. |!. (Jlo ; /I/Iiiik,ii v. /Moiirlnrr. 3 *). li. D. 
 arA; Hill V. dm/)/,)//, L. |{. IOC. P. 222; /ioiilr v. WiKnnini. 10 lv\. (-.17: see 
 Wdtrrii v. Kiirl of Shd/tfulmrii, 14 W. R. 2'f'.) ; but the objection nnist b<- made 
 n|Kin oath ; H'l^^ v. h'lml, Hiijini, /iroiii/'// v. ilniliinn, 11 I'. R. 4.'")1 ; I'mrrr v. 
 A7//.S, (i S. C. R. 1 ; and the jienaU/- and forfeit\u-e clauses of the 13 I'lliz. e. ">, 
 and 27 Kliz. c. 4, cannot be use<l to preveut production by jiarties to deed? 
 whicli it is sought to impiach under those statutes : liinin v. linun, 4 I'eCI., 
 J. & S. 310; se- Sovittii of Aiiuthiniriis v. Nottihijhiim, W. N. 187r>, 20!). 
 
PRODUCTION OF DOCUMENTS. 
 
 503 
 
 (Jcnci'itlly wIh'Ii fraiifl is clmrgcd, no jirivilcffc can \)0 cliiinu-d for fldCiiniciitH Rule 013. 
 rtlatiiiK t" tilt' iillfgf'cl fraud : Firntr v. Witli<imx, 11 .Fur. N. .S. !M)2 ; Philips 
 V. Hill mo; 2") W. K. r)7« ; ('hdrltun v. t 'omnium, 4 Uiff. 372; MoriiitKjtim v. 
 Mnniiu'it'oi, 2.1. & H. (i!»7. 
 
 ;{ l)i)ciiinciits rclatiiifC fxtjlusivfly tit tlu' jiarty's own title or rase, or to the lieiating to 
 evidence l.y wliicli it is to 1h estultlislicd : Oii'in v. Il>?/»i, i) Cli. !). 2!t; Dawv. party'aown 
 Elm, 2 U. k M. 725 ; hmiliiii v. Muftn, 33 H«'av. 31 ; dutiiuiinxioiicr of Sdvcrx c*sc. 
 V. /,7«.w, I.. H. in K(|. 302; Sl.nrl v. Cohs, i Cliy. Cli. it ; *.\nr'i v. .I»«rv. 2 ^ 
 
 Cliy. f'li. l.'W. In Mucli cast- IiIh o]i]Kinei)t is nc t t'utitlcd to his (i<'cds, f*, iii 
 (inltT to "pick holes" in them: Oina v. Il'.i/"", (!h. I). 2!l ; hut ii ; (st 
 iipiH'iir that they do not relate also to the title of the opposite party : Cl(;iij v. 
 hhwiimii, 22 Heav. VS> ; Liiiil v. Inlt of Wi;lht F<rni ('o./ijidvi/, 8 W. R. 
 MO ; liialiiiii of WiiirliiKtir v. liiiwhr, 2!l Heav. 47!' ; Fflkin v. Lord Herbert, \) 
 W. k. 7">l> ; Itoltioi V. Corporal ion of Liiirpool, 1 Myl. k K. HS ; Jrvkim v. 
 Biialilni, 14 W. K. 531 ; SoHllnrark if' Viinxlidll W'tiltr ('a hi jut mi v. Quirk; 3 
 t^. B. 1). 315. 
 
 Letters itetween co-defendants were held notcajtahleof heing put in evidence, 
 iiiiil tlierefore. as not suppurtintf the defendant's case, are not privile{,'ed : Hri/ 
 V. Ik Id H< II, W. N. l«H(i, 1(11. 
 
 Interro^Ttories seeling <liscovery in su|)|K(rt of a substantive ease set up by 
 till' defendant wen- required to be answered by the jdaintiflf : Jiiililer v, 
 Briiliii. 1, '£) i'h. 1). 2'.l ; but a party is not entitled to disc-tvery of the manner 
 in wiiicli, and the evidence by which, his opjMtnent intends to estaldish exclu- 
 sively his CUM' : III. 
 
 I'll Kluct inn cannot be refused merely on the ground that if the plaintiffs 
 ilaiiii is inifoundeil, he has no interest in the documents: (iriKliiiw Mimnliii, 
 •!K. &.(. 2W. 
 
 Pniiluctiou was oiflered when, from the circtunstances of the case as stated, 
 till' fourt thought that the cases of the plaintiff and ih'fendant were so inter- 
 woven that nothing coulil relate to the one without relating to the )ther : 
 //",»i7/m/( v. .^•/;'(•<'^ 1 (Jr. 327. 
 
 For what was lield a sufficient description of the documents, and entitling 
 them ti) prnti'ction on this ground: see lii iiickr v. llrdhiim, 7 ^l. li. D- 4t)(( ; 
 Riihirt.i V. Ojiin I'.hriin, 2(i C'li. I). 724; and Sichel & Chance on Discovery, 
 •Ml. 
 
 4. DiK'unients having no bearing on tiie ((uestion to 
 nut Im' priKJiiVed iN'fore trial : .Unr/idiih linitk \. Tisihil 
 
 tried. These need Irrelevant 
 (! 1". R. 51 ; Hrinr v. <•> tlieques- 
 
 Mliiiiiir.-; v. \{. 134 ; I'di-kn-y. Wills, ISCh. 1). 477 ; sucli as papers relating to tion attlio 
 
 details (if trust .'iccount until the right to account has lieenestablisht'd : Fiiiuin.^i/ 'i""' 
 
 '/ill/.. 37('li. I). 1S4: Mc'lrnjoiw .MrDoiidlil, 11 I'. H. JJHC; lliiv.il v. lidrhir, 
 
 \'l r. H. 4117, or relating tosales in an action for infringement of trade-mark until 
 
 the right to camagi's established: Wotirx v. Furl of Sliiiflisl,iir;i, 1 \V. R, 
 
 iV.I, and sie Hull 51!l. The Court does not distinguish tiM) nicely, however, 
 
 iH'twien (liK'Uincuts relating to the ((uestion at the liearing and consequential 
 
 relief. Si'i' note p. ."idl, especially in cases when' further inquiries consequent 
 
 "11 the estalilishmi'iit of the plaintiffs right may not Iw directed at the trial, 
 
 hut jiiilgiiieiit at the trial niav 1m' given as to the mattcis (le|M'nding ii|Hin tho 
 
 ri|,'lit : /^ .Mo, -111111, On; a v. .Vliinjo,,, U'.l Ch. 1). 31(1. 
 
 Till' plaintiff sued the defendant who had acted as his stock-broker for account 
 will damages, making general allegations of fraud and then interrogated with 
 11 view til I'staiili-li the fraud. The defendant refused to answer on the ground 
 jliatt'iie pl'.iiitiff was not entitled to the information till after decree. It was 
 lielil tiiai the plaintiff was entitled to the discovery to establish liis alliged 
 casesof fraud at the trial : Liitcli v. Miholt, 31 Cli. 1). .374. 
 
 .\ party's ease for the jturjioM's of discovery consists of everytliiiig wliich 
 It is ri'iusoiiable to suppo.se will directly, or indirectly, enable him either to 
 .wvniu'i' his own ciwe, or damage, or rei»'l, his lul vei'sary's : ( '0111/1111111 ii Fimnirinr 
 I'll I'liriiiiiii, V. I'trinidti (liidiio Co., W (l iJ. 1). '55; HniiU'xh v. Tottiv, 1 
 '^ H. I). Ml ; llnti-hiiimii V. Uliivir, 1 <^ J?. 1). 13K ; Woitiiu ofCdii. (HI Co. v, 
 'fVUr. )i P. H. nil ; Loiilor v. .Mdrvliixo)i,'.\ (Jr. .553; and tlie test of mate- 
 rmlity is to assume the party's pleading t;: •>•' tru'.' : (IriHlry v. .MoiikIiii, 2 
 
604 
 
 MISCELLANEOUS I'llOCEEDINOS. 
 
 MunimentK 
 of party's 
 title. 
 
 Rule 613. K. & .). 288 ; Wliitr v. Aim us, 32 W. K. Hll, siHiini.-d in appciil, 2(1 f 'li. I). 717, 
 wIhtc it WiiK lield that the piirty was untitled todiMcsovcrv lu'ton- fe'iviiiffpiirticii- 
 lars of fraud undt-r Kuc. H. 1883, 202; (sc- also Liitch \'. Al>l«,lt,'in Cli. 1X374: 
 Mi/Ur V. //arptr. 38 Cli. 1). 11(» ; II,irhor<f v. Monk, tJ Ch. 1). (il(i) ; Imtiiclocu- 
 niiait rolating exelusivfly to tlii^ casf of the jiarty niakinj^ disccivcry is imt 
 material : see Wigrain on I )is(;ov«'ry, IT), 2(»1 ; Hray on Discovery ; Minil v. 
 Morijan, I/. R. 8 Cliy. 3til ; Atli/.-din. v. {•Jinn-no a, 1(1 1.1. IJ.'l). 1!»1 ; ;y> 
 L. J. Q. li. (»7: and pir Krett, L.J., 74 ; Peile on Discovery, 42. 
 
 Irrelevant documents, if disclosed, need not Im- jn-odiiced for iiiK|K'cti()n: 
 ir//.vo(i. v. Thoriihuni, L. H. 12 K(i. ol? ; <'nitni/ iXm-s f Limitnl j v. h'lixtrrn Til. 
 (h)., 28 Sol. .lour., 3!M) ; 33 L. .1. (^ B. 23(1. 
 
 In Star Kiilnii/ Pad Co. v. <''rti mrooil, 3 Ont. 28(1, an action on a pniiiiisKoiy 
 note given for kidney i)ads, one defence was that tiie pads were useless and 
 jiossessed no healing jiroiwrties. Discovery of tlie recipe or ingredients was 
 refused, tile plaintiff resisting the discovery, on tiie grounds tiiat no representa- 
 tion was made lus to tiie ingredients, which constituted a trade secret, and tile 
 disclosure of the same would damage tiie plaintiff's Imsiness, See aim) Jlailinthi 
 A nil in, rtc. v. LcrinKtiin, 24 Ch. D. liVJ ; HoW( v. J/rKi riinn, 30 15eav. 574. 
 
 .-). (Pro|H?rlysj)eakingonly a lirancii of tiie third liead). A party's niuiiiinentsof 
 title, which he swears do not contain anything iiii|H>iU')iing iiis oa.se, or su|)iK)rt- 
 ing, or material to, the case of tiie defendant : Miiiit v. .Mon/nn, Ij. H. H Cliv. 
 :M\\ : .Uonv.s v. KUwttnh, 23 (^ B. J). 287 ; llnrton v. Jiott,'-2V> L. .1. K.\. Itit: 
 JVrir Hritinli l)irt»t. Co. v. I'lnl, 3 ( '. I*. D. ]!M> ; liut not d(KMiliieiits whicll 
 tend to supjKirt tlie title of tlie o]i)H)site party : Liiill v. h'lviiidii, 8 App. Cft.<. 
 217, 223, 224; se<" Small v. h'ccli.s, 3 I'. K.'l8!); Kotrinont Jiiiriol Ji^mnl v. 
 Kimmoat Jion <h-( Co., 14 Ch. J). ]r)8 ; Wdixtir v. Wlinrall, \t, Cli. 1). 120. It 
 was held in tiie last case, tiiat it was sutticieut to swear to the lu'st of tlic 
 dejHinent's knowledge, information and belief. The contrary has heeu lielil in 
 .Manhii v. liririrki, 8 \). M. & (i. 47<'>. It is insutticient to swear genenilly tliat 
 the documents are jirivileged. The affidavit must state the facts uiioii wiiicli 
 the olgection is grounded : ilnnln) r v, Irviu, 4 K.N. D. 40 ; see also Wchh v. Eii»l, 
 ' Kx. I). 23. 
 
 An affidavit to protect maps is more readily accepted tliaii in tlie cuse of 
 deeds : March v. Jiaili'ii. 78 L. T. .lour. 2ti3 : .see also article 011 prodiictieii (if 
 (iocuments of title in 78 L. 'J', .lour. 278. 
 
 In an iictioii for tlie recovery of land, and delivery of deeds relating tlieifto 
 in the defendant's ]M)sse.ssion, the defence of purcliaser for valiiaiije omsiilcra- 
 tion without notice enables the defendant to resist (ii^eovely of sueli deeds and 
 *locuments : liuimi'r.iou v. hnl, 134 W. I{. (»3(l; Imt only if lie sets tiiat deffiice 
 \ip simply (in wliicli case the discovery would not lie mateual to tlie issue t" 
 1m^ tried), not if lie also disjiutes, or does not admit tlie plaintiff's title : /'/. ; ffl 
 Ch. D. 3-23; 12 Aiip. Cas. 3<K). 
 
 For a form of stateinent of objection on tliis ground, in tlie affidavit (Hi pm- 
 <luotion, see Sieliel & Chance on J)i.scovery, 2(t0. 
 
 The defendants, before putting in tiieir statement of defence, iiiovtil fur tlii- 
 
 JiriKluction l>y the jilaiiitiffs of tlie coiiveyaiue under wliieli tliey lield their 
 and, in order to a certain wlietlier it eiiiitaiiie<l a reserxation of luiiierals, tlif 
 defeiulaiits alleging that, if it did not, they wcuhl sulmiit to a decree at niicf. 
 It was iield that, the land having lieeii coin>'Ved to the iilaiiititfs in fee simpif. 
 they were /irinia farir entitled to the land down to the centre of tlie eartli, and 
 unless the defendants could sliow that the plaintiffs were not .so entitled, tliev 
 could not lie comiM'lled to pnKluee their title di'e<ls ; h'lin iiioiil liiiriiil ('«. v. 
 Kamnoiit lr<;i On <'»., 14 Ch. D. bX ; .see WihnVr \. Wlitfall, lo Cli. D. 
 120. 
 
 Title deeds •>• Title detnls of land of which a iiarty defendant is in possession, in an 
 of defen- ai'tion to reco\ er |H)ssessinii of tlie land liv an adverse title; /'liili/i/iK \. I'lnhii/if. 
 dant in 4 (^. R J). 127 ; 27 W. H. 030 ; but the ilefendant must make an aifidavit dis- 
 poBBesBioii. ,,],,sing what they are : liiiinhol,/ v. Farhalli, (No. 1)3 K. A: .1. 44 ; K<,r liriti»li 
 < o. v. /'ail, 3 C. r. D. 10(1 ; }yrintmon v. J/auIni, 4(1 L. T. N. S. 741 ; see Oir,n 
 V. Wiiini, Ch. D. 20; Lmll v. Knnwilii, 8 A|ip. Cas. 217; l><tnitl v. Fonl, 
 
PRODUCTION OF DOCUMENTS. 
 
 505 
 
 W. N. 1HS3, 52. Tliis rule depends on tiw. cirunmstunce that where claims to 
 tliesiuiif land in fw siniplc an; made Ijy two diifert-nt jH^rHonH, they nuwt Ije 
 biwcd (in inciinsistcnt titles ; it cannot tliereforc he apidied to a ca.se wlw^re the 
 title of the |>laintiff and (U'fendant are not absolntely adverHe, Imt may to .some 
 extent he jinived hy tht^ same evid(Mic(> : J'otimiiiliii v. Hdrt/i'i/, \V. N. 1883, 13 : 
 7J h. T. .hiur. •.'OH; attiniHul on appeal thongh on a different ground W. N. 1883, 
 44. In tiiat ca.se the right to possseswion was not disputed, hut the rijfht to 
 iniiifrals was olaimed, and the plaintiff relied on a reservation of them, and the 
 plaintiff was allowed to inspect tiie title deeds, to .se(! if they sui)|Kirted his ease. 
 lAir a form of statement of objection on this ground, see Sichel & Chanco, on 
 l)i:!ciivery, 210. 
 
 7. Mortf^a^'e <leeds are privileged until the mortgagee is ]»aid what is due ; 
 ciiKhi'sl,',' V. hnin/oll, L. k. o Chy. 407 ; J'"/'li v. Wnn/, L. K. 1 E(|. 42(i ; ./"itr.s 
 y.Jtini.i, Kay, App. vi. ; /irii/;/ririiti'r v. hcWinhm, 12 W. K. 40; llinninl v. 
 RiiliiH-iiiii, A Di'ew. at 1>. r)2(» ; ir'v/.w v. Sliiiirtiiii,\[\ W. R. 480; l''reemiin v. 
 Hntli-r, 33 lieav. 280 ; Siiiitk v. /lunir.s, L. R. 1 Kcp (15; .Ivtrxf, 2 Charl. Ch. Ca. 
 (11 ; W. N. 187(i, 23 ; Kisher on Mortga^.'s, 4tii ed., 302; uidess the right to 
 redeem is deni(Ad : I'nlih v. W<tnl, and .iniii-s v. Junes, xiip. ; Hell v. (J/unnhiT- 
 Idi, 3 Ciiy. Ch. 420 ; and where the proceedings are being taken by the mort- 
 pijCee upon the mortgage det^d, inspeetion of it may he ordered, as of any other 
 (idcinnent sued on : /uii incus v. A/if/i//riiiiss, 8 P. K. 320. 
 
 S. Documents held by a party in a different character from that in which he 
 issued : I'iiulor v. Siiii/Ji, (5 Madd. 38 ; IVKi/ncr v. Miismi, (i J'. R. 187. 
 
 Where a defendant claimed that he held documents only as solicitor for 
 a cii-defeiidant also a party, init who hiul not been called on for i)articulars, it 
 was lield that he should not have been called on to produce these documents 
 witlidiit tiiee()-defenda)it being called on to.showcau.se: McUrciwr v. McDoiinUI, 
 11 P. K. :W{). 
 
 !•. Documents in which a tiiird person not a party to the action is interested 
 are Milt for that reason alone protected from productitni : AV('/Aw7/ v. Jiiirsdiw, 
 L K. 7 (^iiy. liHd; II II I rhi II. so II V. Uhii-ii-, 1 ii. W, I). 13K; hut when such docu- 
 ments are in the joint legal (I'ot corporeal : see lldil v. Liiiiilnis, 1 Mac. k (i. 
 (y7; and n. .1. Ins. t'n. V. \VI//,'liisnn, a V. U. 2<>M), posse.ssion of the third 
 persiin and the party from whom production is sought, the latter cannot he 
 rw|nire(i tojiroduee them : .see cases sn/ira ; Minrii// v. Wnllvr, C"r. & Ph. 114 ; 
 Kmrxliii V. I'lii/ijis, 10 (}. li. 1). 3(1, Ki;-), where iill the cases are reviewed, 
 unless there is no interest which can be affected liy their proiluction other than 
 the interest of the I larties to the action: l.oniloii it' Yitrkxhirr liinik v. <,'i)(iptr, 
 1)1/. 15. I). 7 .ind 47.3. Production will net he reepiired from a party having 
 the sole legal possession, if a third person who is not a party and who has the 
 Ix'Meficial interest objects, unle.ss the suit is of such a nature that tlie Court can 
 say that the part.v having the legal custody sufficiently represents in the suit 
 the other iierson interested: Fntsiu- v. Jlnmf Ins. <'i,.,'[\ P. R. 45; hut where 
 IHiKluetii M will not beoiiiered, the jiarty nnist give all the infonnati<in in liis 
 power respecting till- documents in hie affidavit, and also on any examimition : 
 Frnxii- V. Iliiiiir I U.S. Cn. siijirii ; Xir/in// v. h'/liof/, 'Miv.'A'} ; ( liiirJi v. Finn mini 
 ('m-iiiiniliiin, L. R. 2 Ivp, 271 ; !''/.« v. /•'<«/,■/•, L. R. 13 Kii. <i02 ; lliii/hn v. 
 Mclhuii,,/, L. li. 7 Chy. 312. 
 
 I'dssession hv a party's agent, is of com-.se thi' posses-iion of the party : 
 Miinni/ v. \r,(ltr,; < 'r. & Ph. 114. 
 
 .\s to documents in the joint custtxly of husband and «ife. see F, mlnll v. 
 
 (KJHiiirll, L'lMMl. I). 800. 
 
 .V sdlicitiir cannot setup a lien !ic(piired in the cause against the' right of 
 •itiier parfiis to production ; and tlu^ fact that a liun wliich may Ih- set up 
 exists, isi. (it iiMitlicient reason f<ir not ordering pnMluction, as the party nuiy he 
 fthle tifree the documents fmm thi lien : \'iilr v. O/i/ii'it, L. R. 10 Cliv. 340; 
 I'r'ill V. I'm'/, \\. \. 1SK2, 117 ; hut .see lliiinliiiihjr v. liUiir, 1 ,Iur. 25(). 
 
 I iii(hietiou was not ordei'ed in an action of trespass against a defendant, who 
 wasamimittee of a lunatic, of <locuments relating to the lunatic's estate, tlie 
 ai)cinneuts not beiiij^ in the custcnly of the party, hut in the custody of the 
 tourt having jurisdiction iu lunacy : Virian v. Little, 11 t^. B. I). .370. " 
 
 Rule 613. 
 
 iMortgaf;ei 
 deeds. 
 
 Docunieu;s 
 field in ii. 
 difTereiu 
 eliaracler. 
 
 DocuUle'Uts 
 iu wliich a. 
 tliird \ VI- 
 Hon is in- 
 terested. 
 
506 
 
 MISCELLANEOUS PROCEEDINGS, 
 
 Rule 813. 
 
 Coiiiiniini- 
 cationR be- 
 tween 
 solicitor 
 and client 
 
 <5 
 
 cU-rk Inid consulted, are privileged, iM'inf,' held to l)e tiit^ siinie 
 the solicitors : /iinii/Zifuii v. Ci)iziii-i /iiniiiiniii- < 'a., 11 l*. R. 11 
 
 Kxtf^ut of 
 tliisuronud 
 of |iriv- 
 ileye. 
 
 For a form of stateiiu-nt of objection in the affidavit on this jfroiind ; see 
 Siclu'l & Cliance on Disoovery, 210. 
 
 10. Documents wliicli are privileged, a-* being coninmnieations [iiissjiig 
 between the party and his confidential professional adviser, or agents. 
 
 Of this kind are all communications In-tween a i)arty and his soli(;itor ni'otliiT 
 legal advisi'r, whether made mili; or «'«/ /item iiinliiiii. It is enough if they arc 
 comniimications of a confidential cliaracter ; Smitli v. Ihniifll, i,. R. IS Eq. 
 'i4!l ; Orif-iidiil llnitU'imnt ( 'ollierii's Vii. v. Miioii, 'M> L. T. N. S. 5H.') ; not an oikii 
 eoirnnunication : Fixihrs v. HVW), 28 Cli. I). 2K7 ; Knn'sfinic v. I'lrabni, ^ 
 (III. I). IKi ; made by or to tlie legal adviser in a professional clianu-ter : Minel 
 v. Miiri/((ii, L. R. H Ciiy. 'M>7 ; ('<irj)i>mtiiin nj llnstiiK/.i v. Ivull, Ih.^ I(il7 ; Mof- 
 idiliiiii' v. Hull, L. R. i4 K<i. oW) ; Ilaiiu'lipi v. WInjt,; (i I' R. WA ; .l/r..s7v„ v. 
 IIV.sV Miislyii, 34 L. T. N. S. o^l ; Wilxon v. Xi>rllii(,iij,ti,ii, L. R. 14 Kq.'ln; 
 /'jidif V. .l(lifi,s<iii, 47 L. T. X. S. .543; Miii/nr, elr. iiflirislul v. Cdx, 2(U'h. 1), 
 (i7«; J'niiior v. Smlli:s,r>r, L. .1. (^. ]i. r)27; hiinl,;: \. lilol.ru, 23 C^. 15. I). ;«L'; 
 see /.//''// v. Kriiiii'ili/, !l App. Cas. SI ; including connnunications with a fdiiiitr 
 H<ilicitor : Tlmmiis v. .SVc. n/' Slulc fur India, 18 W. J{. 312; Marrintl v. Ancliin; 
 elr., 3(iitf, ;i04; Wilsim v. ItriinxkiU, 2 Chy. Ch. 147; and tiie predecessoiN in 
 title of the party : Miiut v. Muriinu, and Mnsli/n v. IT. Mn.iliin, .sujiri'. 
 
 Connnunications by a clerk <if the defendant company to the company, 
 containing ref<Tences to advice given by the comi)any"s solicitor, whom the 
 
 .OS if written hv 
 110. 
 
 The privilege extends to a i«'rson who, unknown to the client, iiad ceivsi'd to 
 practice as a solicitor when the connnunications were made : I'lillri/ v. Rithnnh, 
 10 Reav. 401; see also L. R. 18 K(|. (J.")4 ; and to communications with ivfer- 
 ence to actual or im(MM)ding litigation coming from any tliird person empkiywl 
 hy the solicitor, or at his instance, such as his town agent : <'iill v. Ti'inh; 23 
 \a. T. N. S. 48.") ; 10 W. R. .")(i, or clerk, accountant or otlicr skilled [wi'son; sw' 
 Liurrriirr v-. Cum /Ml, 4 Dr. 48;"); SIrrI v. Slnrnrl, 1 I'ii. 471; <'liiirltni v. 
 /•'rrwrii, 2 l.'r. & S. 300 ; Hnnjnr v. (iiiiiuii, 10 \V. R. 044 ; or in any other way 
 procured by tlie solicitor, or by tiie client or iiis agent, at the instance of the 
 solicitor: Huslrix v. Wlii/tr, 1 (^». M. I). 423: Aiulrrsun v. lindL- "/ liritish 
 Cdli'm'/iit, 2 CU. I). 044; Tui/lor v. Itnllni, 4 (^>. |',. j). So ; and to dociiuients 
 prepared witli a Iidiu'i liilc intention of iM'ing laid before a solicitor in acimtem- 
 plated action : S<iiitlnr,ir/i v. (^I'ii/i; 3 <}. H. I). 31"); Whrrlir v. L< Munhiiiil, 
 17 f'h. 1). 070; h'riiiirili/ V. A//<7/, 23 Ch. I). 3K7 ; afterwards afliniicii (^ii 
 ap[>eal to the Mouse of Lords : see App. ( 'as. 81 ; /.ninlrn v. ISInl.rif, 23 <j'. 1!. ll. 
 ;W2 ; letters from a third person in answer to in<|tiiries l>y a party's solicitor 
 witii a view to anticipatf-il litigation: MriJari/i'inlnlr v. l>rll,\V. I*. 1). 471; 
 Aadrrsoii v. liiiiik nf Brilisli I'lihniiliiii, '1 V\\. 1). 044; anonymous letter." to 
 solicitors aliout the case ; Yniiiiijw llcllniiuni, 121*. D. 107; (iiH'uments materiiil to 
 the ])arty"s case priKUired by iiis solicitors of tiieir own moti<>n for tiie pm'|Mises 
 of the action : '/'/«• l'itlrriiii>'\) \\ I). 0; ilii,l,,h ('. ('</. v. Whilrliniil, <l 1'. I!. .Mil); 
 documents relating only to the conduct of the suit : Imiilliii v. Shu/In, 33 li<av. 
 31 ; (•'iiiiilir V. Sliiii'ilirli/, 4 \)vC,. Ifc .1. I ; Tiinur v. IlKrhnsliiiir, 11 \V. I!. 
 8.">1 ; pa|M-rs relating to a former action and privilege<l tlierelii : Hiilh>iL v. 
 Corril, 'A(l. B. D. 300; lliir„,i v. linn, 11, \V. \. 1870, Of) ; A'-/-/"// v. Ilrl'rir.s^ 
 ii. \i. D. oOS ; Jiriin/oril v. Jinin/onl, 4 P. D. 72 ; /'nirrr v. /•-«/./■, l.'i <). H. D. 
 114; CiiiKKlitiii I'ticitir Rii. v. Cinniirr, H J*. R. 207; l>nt not otherwiM': 
 lliilriiinsim v. (Jlfrri; \ (i \\. \). l.'W ; Rr \V„r.'<irlrk; :W Ch. I). 370; a doctors 
 report of an examination at the instance of a party's solicitor: /■'/■/'"'' v. 
 I.iiiiilnii, ('/iiillinm iihil J)iirrr J{i/. i'o., 2 Kx. D. 437; and rejH)rts of surveyors as 
 to the condition of a cargo, miwle solely for tiie case of one of the parties or for 
 the opinion of his legal a<lviKer ; '/'//'■ '/'/irni/nrr Kiinirr,A I*. D. 102; see '''*<.'/ 
 v. London, lirl'jhlioi, rtr. /li/. Co., L. R. '> C. 1". 14(). 
 
 .\ltiiough co])ies of doctnnents, whicii are /iidiliri Juris, are themselve>* iinpn- 
 vileged, a collection of entries in pul)lic records and registers and of photo- 
 graphs of tombstones anrl houses will be |)rotected fi-om nriKliiction, wiieii it has 
 been made or directed by the solicitors of a party for Iiis defence, and is tlus 
 result of tile professional knowledge, skill and re.st'arch of tliose solieitorsi; 
 L.i/ilt v. Kennrdi/, 27 Ch. D. 1 ; .53 L. J. (Jhy. 1.37. 
 
 
PRODUCTION OF D0CUMKNT8. 
 
 507 
 
 C'oiniiiuiii- 
 catioiiH ii>>t 
 ill pit)fes- 
 Hioiml 
 cliiinicti T. 
 
 Of oollii- 
 toral ill or- 
 iniitiiiii. 
 
 Ti'iinscriptof »l>-"'liiUMl nott's of procewliiiffs in oiH-n Court are not privilejfcd : Rule 513. 
 /.', Wiiiiinrl, Riih.Kiiii v. Wiirsuur/,; 3H Cli. I). 'MO. 
 
 Tlie Ki\'i"n "f fill extract or copy of an opinion (»f cimnsel procured t)y tlio 
 tolicitor fur his client on the subject mutter of a suit to the solicitor on tiie 
 (itliiT '<i(le (l<H(s not prevent this oi)inion from being privijej^rj-il ; ('invii \-.<'iilli. 
 i.rfi, (I L. H. Ir. K(i. o'.ti*. 
 
 I'riitcction cannot be claimed on this ground for coinmunitiations made to a 
 xilicitor, Imt not in iiis character of solicitor : <rn'''iiiiir//i v. f/axM/, 1 M. & K. 
 IIS ; IIikIiI v. /•'-•'/,//, !» C. L. T. 1387 ; Tlwmus v. ii",rli)i(/s, 27 Beav. 14(t ; as 
 wlicrc he was not simply advising as solicitor, but negotiating actively mucli of 
 the triuiHiu.'tiou iin|ieached in the action : I'liirmm v. Mi'irhinils /Inn/.; 11 I'. H. 
 21 ; or v'lis ])laintitf"s patent agent, as well as his solicitor : .l/o.sr/c// v. Vi(l<iriii 
 HiiUifr ('»., 5.") li. T. N'. S. 4S2 ; nor for letters to a party's solicitor, not induced 
 by inquiries: MiCir/i'ditd/i' v. fie//, sii/ini ; nor for statements made volun- 
 tarily m' at the jiarty's recpiest for his own information, by his unprofessional 
 :i;;Hits : Hiixlras v. White; Aii'/iTsdii v. Jiiiii/,- iif BrUi.ih <'iiliiiiilii(/.,iiii/)rit ; though 
 iiiiule in eoiiKdeiice, and so marked : Hn/ikinniiii v. Lurd Jiuiy/i/ri/, L. K. 2 
 Cliy. 447 ; see W'innni v. Br((i/fifri'i'f, 2 Chy. Ch. 77. In such cases an under- 
 taking may lie re(iui red not trt use the documents for any collateral pur|M)se : 
 lli'iikiiisdii V. I.iiril Itniiihli';/, .•iiijini ; /tir/inri/sdii v. /liis/ini/s, J IJeav. 354. 
 Priiteetiou also cannot Ih- claimed for information derived from collateral 
 siiimM's iiiul not directly from the client : Marsh v. h'ri'lh, I Dr. & Sm. 342; 
 Fnnl V. r<'iiiii'iit, :V2 Meav. iri2 ; /)i'.i/«ir<>ii;/h v. Rt'wI.iuK, 3 M. & Cr. .51.5; R, 
 Liiiid I'rnlil Siii ii'tj/, 15 \V. 11. 7<>3 ; nor for mere collateral facts, such as the 
 ilicnts residence, unless communicated contidentially ; c.//., as his t^lient's 
 hidiiii'' place: see Hnilh v. <'rriiliiik. \,. It. 1.5 Kq. 2.57; lie Anmlt, K.r /inrfc, 
 i%kf't)iliniil Rrceirri; 'M W. H. 223 ; (iO L. T. N. S. l(«t ; or address : see llur. 
 sill V. Ttiinirr, .5:5 L. .1. (^. H. .53 ; (see also the distinction tietweon coiiKdeiitial 
 I inmimiications, and those of facts patent to the senses : Krimrifi/ v. I.iiell, 4H 
 L. T. X. S. 4.55 ; 23 Ch. I>. .'W7 ;) nor for documents passiiiff Ix'tween the party's 
 siilicitor and third iiersons to enable the solicitor to lulvisf; his client, unless 
 thi'V were for the purpose of obtaining inforiiiiition, evidence or legal advice 
 witli ret'ereiice to litigation existing or contemplated lietween the parties to the 
 iiction ; W'ldili'r v. Ac Mdrchnnt, 17 Ch. I). (>7;5; /'dn'/' v. Mitm/id/itiiii Trnni- 
 ''•"V« f'., \V. X. 1HS3, l(»l); (tri'iiiiiit lldi-tlei)>,l < ■u//i'i'n'i's Co. v. .]fd,ii,, 30 
 L. T. X. S. H»3. ;5S5 ; lir/t.s v. d. '/'. Ri/. 12 V. H. K(l, (i34 ; r„„,/(-r v. ('. /'. /,'//.<'». 
 '.ir. L. T. ;«;; see Wrsfiiii/hdiisr v. Mi<lliniil, ,■/<:, 4S L. T. N. S. !I8, 4()2, as to 
 what cdiistitutes //.v iii>ld \ nor for professional opinions given partly for the 
 iifiicKt of tile iiartv rtMpiiring production : Rri/no/ih v. 'inif/i'i; 4 K. it J. MS ; 
 Talhni V. Mdishlielil, 13 W. H. .SH5 ; Wiiiiiir \'. Hiiiii'n'ris ,„, 27 Hi'av. 421 ; nor 
 when' fraud is eluu-ged : see Mdininif/n/i v, Moniinii((di, 2 .1. it H. ()'.I7 ; f'hurl- 
 bm V. Cwuiilit'.i, 4 (iitf. 372, 3.S2; lin/mll v. Spn/r, 10 Heav. 51 ; 11 Ueav. (UK ; 
 %. V. far, U(l. 15. I). 153. 
 
 I'ri)fes.<iimal coiiimuuications are excepted from protection in partnersliip 
 aitions and acfimis lietween beiietieiaries and trustees, wiiere sucli communica- 
 tiiiiis liii'l been obtained for the sake of and |)ai<l for out of the partnership or 
 trust estate : (ddirduil v. /'Ji/i.sdii. (Idirrr Hil! T<l. Co., 5!» L. T. X. S. 813 ; .57 L. J. 
 ''hy. Ills. 
 
 Xii privijegf can be claimed hy a trustee as against his rrstiil f/in trust for 
 letters passing lietween the trustee and the solicitor, relating to the trust liefore 
 wtimi hiipii^'ht : Rr Mdsdii, Mdndt, v. Cdttlrn, 22 Ch. I). (iO!»: Tdtimt v. 
 .\[iir.slil),-l,l, siijdd ; It, I'lisllrthwuitr. Posttrlhirditi- v. Rirkii\d,i, 35 ( ?h. I). 722. 
 
 Between 
 
 solicitdV 
 and a t ! i i n1 
 person. 
 
 11. (Iiiniiiiunieitions with an unprofessional agent in anticipatini of litiga- 
 tiiiii, anil witii a view to the prost^cution of, or defence to, a claim to the matter 
 iiulisimte Were iield to lie privileged in Rdss\. tliltlis, L. H. S Ki). .522 ; <'"iiiiiirr 
 V.''. /'./.'v. r,,., 11 1>. U. 2'.>7; •'^l<t<tr v. 'JWhr, 14 Ch. 1). S24 : .Ini/rr.sn,, y. 
 Hiink,,/ liiiii.sh rnliiiii'i.'d, 2 Ch. 1). at li. <),5H ; but the documents there were 
 fiirtlie |uir|«)se of lieiiig laid U-fore a lej'al adviser and would come within 
 
 !i,lilhirtd: rfr. v. (,»'/</•, 3 (^. B. D. 315; see also Mdn/dildlit v. .Vidirirh I'liidii 
 hn lii.i. f',,., 10 I>. H. 501. The later ca.ses seem t<i show that sucli coniniuni- 
 catiiiim are not privileged even when made during, and for the express 
 Iiunxwcof litigation. See lUistms v. While, I t^. B. D. 423 ; .1 ;/"'«■>•« « v. lUuik 
 
 Coiiiiuiini- 
 catiiiiis 
 witli un- 
 profes- 
 sional 
 agent. 
 
608 
 
 MISCKLLANEOUS PROCEEDINGS. 
 
 Bule 6i:{. 
 
 lustaiiuus 
 of uiiiiiinU' 
 iiiuatioiis 
 not pri- 
 
 I'onii iif 
 
 attlilavii 
 
 claiiiiinu 
 
 prnti'ctioii 
 
 friiiii pro- 
 
 ductidii. 
 
 "/ lliili.sh t'o/iiiiihid, .sii/iiii ; Mm/ ill V. /tii/r/iiiril, .'!(> L. T. N. S. 732; Nfc al«i 
 Kriilv. lyiin/lois, 1 Mm:. & (i. (WS ; //iniillfnii v. .V(///, L. H. l(i K |. 112. Cdiii- 
 iniiniciitioiiM with a solicitor in liiw character of patent aifent aw to tlic imqiar- 
 ation of s|M'(;ifications for the patent are not privilegea : Mnm'/n/ \, Virim-lii 
 RiihliiT r<,., i") L. T. 4S3. 
 
 For forniM of statement of ohjection in the atii(hivit or production on tin- 
 ground of privileifed coinnimiicationH, nee Sichel & Cluvnce on Diticoverv, 2i)S, 
 As to tlie effect of charges of fraud on yriviU'f^f, Htiv Rf /'tisZ/rtlwuili/l'mii,- 
 thir.iil,' V. /f/VX'//„o/,35Cli. I). 722; H<v. v. Cur, 14 t^ B. D. 153. 
 
 TliH foUowinjf are furtlier instances of coniniunicatioiis not privilcgMJ ;- 
 Copies of letters between defendants and third persons procured for thepiiriKwe 
 of defence by the solicitors of the defendants from such third persniis, tlie 
 defendants not havinjj kept copies of tlie correspondence : Chinln^icL- v. />»(/'/;/»«, 
 
 KJ <i. B. I), rm. 
 
 A transcript of shorthand notes of evidence in an notion instituted hy a party, 
 with a view to ulterior proceedings not then contemplated, and for the piiriKi* 
 of submitting the same to counsel in such ulterior pnxieedings if taken : lUui-- 
 Kl„nc V. Pmliiii, 3(»Cii. 1). nti. 
 
 Opinions of engineers as t(i the validity of a patent obtained with a view t" 
 beiiiK forearmed in case litigation should arise : Turiiiiin (irari'l /tiinl (,'■, v. 
 T11//I111; {'} P. K. 227 ; reports made to an insurance company by their iiifdieiil 
 officer, and by friends of the assured to whom tlie comi)any was referred as tn 
 his health and habits: Muliinin v. Siitionul Wii/mr's AZ/'c .l.v.v. Fintil, h.U.W 
 C. 1*. 252 ; reports of persons employed to siu'vey a tug, for the purpose ef an 
 action for damages for improperly constructing the tug : Mmiiu v. /tulilinril. 
 30 L. T. N. S. 732; but i/inri/ if this is not contrary to Sdiitlnnirh, rlr.s. 
 <^>iiiik, 3 ii. B. I). 315, see nn/ini ; correspondence between a vendor and u 
 vendee relative to tile suljject matter of the action by a sub-vendee but wliicli 
 could not be said to be confidential communications witli a view to litigation: 
 /■^iii/li.s/i V. Tiiltif, 1 (^. B. I). HI ; letters from a party's unprofessional agent 
 to defendant, relative to tlie subject matterofan action, not sent in order tn 
 be laid Imfore the p!irty"s solicitor: .iiii/ir.vni v. Jinnk a/ Jiri/i.sli ('i!iimlim,i 
 Cli. 1>. (i4't ; an a^^reenient of compromise between the defendant and a tiiird 
 jierson relative to the subject matter of an action : llnliliintiuii \. (I'lnirr, 1 
 <i. B. l). 13H; liii-li'irih v. Miir;i<'ii, 4 B. & S. (i41 ; or pajiers obt;iiiie(l frimi 
 ex|K'rts, by arbitrators for their K'lidance : I'lnn-funl v. Sifniiir, 1 J. & II. 4.% 
 
 Corresp'indenc? bt^tween co-ilefendants after suit, is not as a general rule 
 jirivileged : H'liiii'/fnii v. iV/i//, L. U. Ki Kij. 112 ; see also SniiLfi v. Mi'i-imilff. 
 S L. K. Ir. 241 ; /A// v. h,l<i Hni, W. N. lHH(i, 101. 
 
 Where a diary that would not iiave been protecteil from production iiasln'Mi 
 lost, extnujts made from it since the commencement, and for the purposes of tlif 
 litigation are not protected : l.iniil Cn/tiiiiiliiiii nf Cniimld v. /'uli's/mi, W. N. 
 1SH4, 1 ; i.ee T/ir I'liliimn, it J*. I>. (i. 
 
 Form of Affidavit. -The affidavit niuat give such description of tliedecu- 
 ments which the party objects to produce as will sufficiently identify tlii'ni : 
 Tinil „■ v. Iliiltni, 4<y. B. 1). Ho; /Iriri,-/,;- v. (li-nhiiiii, 7 <l. iV. 1). 4(MI ; Ti'iihr 
 V. u/irn; 45 L. .1. (Jiiy. 774 ; Mki/hi' -;/' /{nstul v. 1;,.,; 2(i Cli. I). li7M. A list 
 may \v Kiveii settinj? them out in the same way as tlu documents which tlie 
 jiartvdoes not object to produce : see //iiiii''///ii v. W/ii/ti; (i P. H. 143; Friifi' 
 v. /iiiiiif Ills. fV(.,'(; |». H. 45. The following have been held sufficient (leseril>- 
 tions : " A correspondence iH'tween tlie |)laintitf and his predecessors in title 
 on the one hand, ami their respective solicitors from time to time on the other : 
 MiiiH v. M'T'imi, L. K. S Chy. 'MW. " Certain diKUiments, letters and c'lrras- 
 pondeiice which have ))a.sse(i between my legal advisers and inyself, and 
 certain iiiHtriictions to, and oiiinion of counsel, which are numbered 5(l-7li inclu- 
 sive and are tied up in a bunille marktul with the letter A and initialed by ine : 
 TmiJiir v. Il'iffi'ii, .iiiin-ii. "Bundles of letters " is not a sutticient description 
 of corresuondence : i/iniilllnii v. Xolt, L. H. Ki Kc|. 112; but letters may 1h' jo 
 descrilH-a with sufficient description to identify them : Witlkev v. /•■'"'/'■, •>! 
 L. J. Chy. H40. Too jirolix and voluminous an affidavit was ordere 1 to \» 
 
"^^^^^pp 
 
 PRODUCTION OF DOCUMENTS. 
 
 609 
 
 taki'ii off tlie Hits : //*., W. \. IKH'i, 13(i ; or tliu i)arty filing it may be ordi'vcd Rule ffl3. 
 to piiy tilt' coHtH of it : ///'// V. Ilitrt Ihitix, 20 Ch. \). 470. 
 
 It iR not Mufticicnt to iiifiitioii huiidles eoiitiuning a large niiiiilH-r of docu- 
 iiiciitM, iuiioug which the (l»'|H>in'nt thinks rnie or two nay Im- material ; an affi- 
 davit so framed may Im^ onlertnl to Ix- taken off the file « : llnllutt v. Natal /.and 
 J. Vnl. Cn., H3 L. T; .four. 2(»3 ; W. \. 1SX7. 143. 
 
 Hcfcrciuu' generally to letters, etc., as tiled in Conrt on certain sin-cified 
 iii)]iliea;iiiiis, «iis liekl stitficient without scheduling the particulars : l.i/on v. 
 Mlia;/, 10 I'. K. 557. 
 
 The affidavit nnist also [see clause 3] assign a reason for objecting to pro- 
 ilncc tlie(l(]i'iuuents :>■ \ verify the fiu-ts u|W(n whieli the claim to protection is 
 liasi'il : Hnwiliii v. (•'niliaui, 11 I'. H. 4.M ; <<'arilnir v. Irrin, 4 Kx. 1). 4!( ; 
 WilJi V. /iV^•^^'5 Kx. 1>. lOS ; RiiUirtx v. Oj,/,, ,ihi im, L'(! Cli. 1). 7l'4. It has 
 Ih'cii iii'ld sufficient to swear to the lii'st of tiie defendant's knowledge and 
 liclii'f : Miiiil V. Miiri/oii, .</»/<;•</, Iiut sec Mmilni v. Hi nirh; S l)e(J. M. & (i, 
 47(i. It is iusutticii'iit to svvcar generally that the documents are privileged : 
 (ii(i-(litrr \. Jniii, 4 Kx, I). 4!t. 
 
 Wlii'H' an affidavit of documents ha<l Ix-en file<l. setting out the numl)er and 
 the dates, hut not the parties to title dei-ds, it was held that as the deeds were 
 iirivili'ged, the (!ourt would not onler the names of the parties to the deeds to 
 Ih- set out: 7r////,.c v. O/inr, 45 L. .1. Chy. 774; 34 I.. T. N. S. !l(tL'. 
 
 The following statements have hern held to sufficiently disclose some groujul K.xanipl) » 
 iif privilege : " The said docmuents relate.solcly to tlie case of tlie defendants, "f Htalc- 
 »m! not to the ease of the plaie.tiff. nor do they tend to support it, and they (1(» '''e'jt^."f 
 not to the best of our knowledge, information and lielief, contain iiiiy''i""g' to ii'rod'ii'e 
 iin|M'ai'iiing the ease of the said defendants, wherefore, we ol>ject to l>roduct) on t,'ro\niil ' 
 tlie same and say they are privileged from pr<Hluction " : /{< uickv v. (traliiiia, 7 of jirivi- 
 H. 15. 1). 4(Mt: see a discussion of th.itca.se, l(i L. .1. L'()3 ; see also RdlnHn v. logo. 
 Olfi'tihaui, •>!> C'h. I). 7-'4 ; and Hiilhuin v. IHian, 4'.t \.. 'W N. S. 7;^». " I 
 iil)ject to produce t\w d(H'unn'nts set fort' in the second part of the first 
 Schwlule, on the gi'oimd that Inking connminications lietween .solicitor and 
 client they are pi'ivileged " : llamihni v. U'hiitr, (i P. li. 143; see also Mriefar- 
 lane v. ttiilt, \j. H. 14 K(|. 5f<(». Kora description hehl not sufficient to protect 
 im the ground of joint intei-est, see Frii.ii'r v. Hinin /iix. I'd., ti I'. R. 45. 
 
 Portions of Uioks produced, containing entries not relev;int to the matters in 
 ((iipstion may l)e allowed to U- sealed up: Kf J'ickrriini, 2'i Ch. I). 247 ; HfiK/h 
 \:(/<frr<lt, \V. X. IH74, 22! t ; 1.S75. 2(1; Joins v. Awlriii-.s, .57 L. T. X. S. H4'3 ; 
 m L. T. N. S. (K»l. 
 
 When^ the (locnmentH mv pro|)erly identifiwl and described and the ground .VHldnvit in 
 (if protection sufficiently stated, if it is a valid ground the affidavit is priina proper 
 fneie conclusive as to the n-levancv of documents and privilege claimed : *?"'.' ''°"' 
 Ikirickr V. (iraham, 7 <^ B. M. 4<k) ; Wrhh .Vr«//i (tc, Co. v. (.•axkr/l, ;i(; <='"*"^"- 
 I. T. N. S. a52 ; lii'hmin v. Voun;i, 31 W. R. 7fiti ; 4!» L. T. N. S. 73(i ; and 
 cannot lie contra<licted by connt<'r affidavits : Joins v. Montr Vidro it'as Co., 5 
 'i. 13. 1). .55(i ; L'lon v. McKmi, 10 V. R. 5.57; .see also Hall v. IVmiinn llan- 
 I'ur!i0).,'j?.i Ch. I). iVYt: Nirholl v. Whrrlrr, 17 ^^ H. D. 101; Mrtlirii>,r v. 
 MiDnmht, 12 1'. R. Kl ; Mmris v. Kdirards, 23 <^ \\. 1). 287 ; but the Master 
 iir.Imlge may see from the nature of the ca.se, that the party has misconceived 
 th(! effect of the dmnnnents, and may therefore disregard, or i-efii.se to act ujxm 
 hin affidavit : Attonwii-Hnirral \.' Kuii ixoi\, 10 (^ B. 1). l!» ; Pimsonln/ v. 
 Hartlni, W. \. 188.3, 13, 44 ; Liirll v. Kmnrdii, 31 W. R. (i18 ; Frasrr v. Hornr 
 Im. (;<>., i; 1». R. 45 ; Rr Pickcrim, 25 Ch. I). 247 ; Movlrii v. Canada Atlantic 
 Rii. Co., 11 P. R. 3!»; (hut Hw Leslif v. Carr, 35 W. R. 515; 5(> L. T. N. S. 
 332, where it was held that one document Innng shown not to Ik! privileged as 
 claimefl, hy relating only to the (Mirty's own cas<', another document is not on 
 that ground to lie ordennl to U" in-sjiecUKl) ; or if fi-om the affidavit itself : 
 Joim V. Monte Vidro (Jas Co., supra ; Waiixtaffe v. Andrrii<m, 3!) L. T. N. S. 332 ; 
 (where tiie words "never have had " wen^ omitt«fl), or from the documents 
 referred to, or an admisHion in the |>leading of the party : /fastinpn v. Ivall, 
 oUt T** ^''y* ^"^'' ' ^"'l'- -^'""^ ''"■ "f MarseHhs v. Mastrrmin, 22 W. R. G(i ; 
 ii'L, T. N. S. 550 ; Jonm v. Afonte Vidro Uax Co., supra ; or otlier documents 
 
510 
 
 MISCKLLANEOUS PROCEEDINGS. 
 
 Rule 014. iiffonlinx rt-uxonable MUHpicion that the affidavit in luit Hiifticiciit : nee Z«</' 
 V. Ktniinhi, 27 Ch. I>. 1 ; (hucIi an (^vidonee given at a fdi'iiier trial of tiit-iu*; 
 M'Krliii V. Viinailit Atlantic Itii. Co., 11 P. K. UK), <>f in liin exaiiiiiiatioii in tW 
 cautM! or on tlie affidavit : Ht-c htilmoii v. Jiohmm, 7 P. R. '2t)i>, and Ituir ^)l'2\i,r 
 tiie luIniiHhion of liis Holicitor : Vamphill v. McArthur, 7 !'■ K. 4(i: or t>{ m\ 
 officer of a defendant or company ; l'aw!«m v. Alcrchinitx' Jimik, 11 P. K. K 
 tlie MtiMter or >ludge in of opinion that the affidavit iH insufficient a furtlirr 
 affidavit may l»e ordered. See. also /{ti.in v. Dublin Unitvd Triimiiaiif i\,„ 
 H L. R. Ir. 213; I'limpitiiiiic Finniipicrr v. Peruvian (Iniinn Co., 11 (.^. R I). 
 iV) ; Ci'iilriil N(ir.i (LimitolJ v. Knstcrn JVIi't/riifih Co., '2H Sol. iloiir. 31*); 
 l!ol,i<i^i,n V. liiKhjrtl, W. N. 1884, !)4 ; 28 Sol. Jour. 411. 
 
 Cross-examination uimiu the affidavit was not allowed in Chancery oriinrter 
 the Jud. Act in Kngland, but it is allowed in Ontario under Ituli- 512. St* 
 not*' tt> that Hull'. 
 
 It seems, iiiKngland, to lH>a not uncommon nractice, on applications reH|i<-ctin^' 
 discovery to shew the documents \\\nm whicn a question of privilenc arises t'' 
 the Judge ; an<l where by consent the document are so shewn to tlie .1 inline, mid 
 his decision thereuiM)n taken, no ap|it^al lies from his order : Jiimtros v. W'hih, I 
 Q. U. D. 427 ; see also Macdoiialil v. Norwich Union, 10 I'. R. .505 ; hutwlicthw 
 this course is right, qiKtrc : see lie HoUomiij, 12 P. D. 1(17, HiD. 
 
 A second a|>plication for a Iwtter affidavit on pnMluction is inipr()()er whcri! 
 no objection is made tin the first application to the non-production of thr 
 documents in (|uestion, tlie second motion not being made uihiii any uiati'rial 
 which did not exist at the time of the first motion : linuiihtmi v. Ciliuii liwr- 
 unci Co., 11 P. R. 110. 
 
 k a 
 
 produce" *5I4. Everj' party to an action or other proceeding shall 
 aooumeiits be entitled, at any time before or at the hearing thereof, to 
 
 referred to • i- • -l- j. ii i. • i i j 
 
 in pleading give Dotice in Writing to any other party, in whose plead- 
 vftB.*''" ings or affidavits reference is made to any document, to 
 l)roduce such document for the inspection of the party 
 giving the notice, or of his sohcitor, and to permit bun to 
 take copies thereof ; and any party not complying with such 
 notice shall not afterwards be at liberty to put any such 
 document in evidence on his behalf in the action or pro- 
 ceeding, unless he satisfies the Court that the document 
 relates only to his own title, he being a defendant to the 
 action, or that he had some other sufficient cause for not 
 complying with the notice. J. A. Ilule 229. 
 
 Corres|K»nds substantially with the Eng. R. 1875, O. 31, r. 14, (lWt3, K. 35:1. 
 
 See noti's tt) Jiiilrs .508 and 513. 
 
 In M'thstrr V. Whetvidl, 1,5 CI i. I). 121, remarks were made by Dennian, •' 
 to the effect that "sufficient cause" for not comi)lying with a nutici- ' ' 
 defendant \nider this Rule would !«• that tlie defence hiul not yet bieii deliyw 
 This dictum was not approved in (^iiillcr v. Ih'otUi, 23 Ch. I>. 42, where it w;.- 
 held that a defendant was, jiriuiti fiiciv, entitled to at once insjiect a (iociiiinT! 
 ri'l'erred to in tlie )ileiulings, and tlie burden of sh<'wing cause is on tlu'itti;* 
 from whom ins|K'ction is demanded; also that the Itiilr ajiplies imt "i i' 
 between the i>laiiitiff and a defendant, but also between co-defendants. 'Hi''' 
 Liiidley, L.J., said, "There is a matf^rial distinction lietween onlin-iry ; • 
 coverv, and discovery of (locume-nts referred tt» in the pleadings or affidavits. 
 And .'lessel, M.R., said, "The defendant may say ' Your ca.se (le|Hn(ls !)»«') 
 on a set of documents which you have set fiut incorrectly, I wish to sff tnrii: 
 It may be that 1 have made admissions which will put me out of Court. J 
 wish to see the documents to kno<v wiietlier I have made .such lulniissi""", »"!. 
 
INSPECTION OF DOCUMENTS. 
 
 511 
 
 it is iiiiiH)rtiiiit for lilt' to Hcc tliciii Inifoiv 1 put in my (Iffciicf.' It I.h rcaHoii Rules 
 *'iuiiigii wliy the (Icft'iidiint hIkiuIiI Im- iillowcd to sec tliciii tlmt the pluiutitT lias SIB, 616. 
 iiiiulc tliciii piirt of his Mtatciiit'iit of claiiii." 
 
 Tlif (lotMiiiu'iits need not lit- |Hirticiilarly idfiitificd or rff«'i-r<'d to ; lint if more 
 ciiiii|p«inlioiisly dcHcrilx'd iiy frciicnil words, tln-y fall within thin Jiiih, and 
 iiiKiK'i'tioii may Im- ordered : Smith v. lliinis, 4H L. T. N. H. H(i!(. A letter 
 reffiTeii to ill particnlarH of iilaiiitiffV claim is a dociinient within the Ituli-: 
 t'<i,HA V. ]•//:;!< raM, W. N. 1K,S4, IS. 
 
 The reference in (ileiuliiiK, etc., to a (locnment in respect of which jirivilege 
 iiiijjht otherwise iHtclainieil diM's not render it lialile to inspection under this 
 Hull, but if priKliictioii is refused it cannot he used in evidence : Rulifrtu v. 
 <)ji/Hiiliii,ii, '<{> ('h. I). 721; see also A/nii'.r <;/' llridul v. *'".'■, 2t» V\\. D. (»7« ; 
 l.tflii V. Vdci', ;i(l So,, .lour. 7t), and <>rriii v. Aini'i/, 2 Cliy. L'h. l;W. 
 
 Tii<|w(,'ti()ii of a fori'ixii jiidjfineiit was refused, in an lUition on a judLnm-nt 
 iiriiiiKlit iiiiih'r tlie old pivKiedure; Mii/t/iinn v. Ih'liiuhn, 1 (Jharl. ( 'a. (Court) 
 Vi!i. iiisiKK^tioii of a mortgage deed was refused to u di^fttndant, who wished to 
 tiiid from it the amount in order to redeem, the plaintiff undertaking to give in 
 II week a statement of jirincipal, interest and amount of costs, and of the narti- 
 ciilars (if all other siibseipient incuinbraiices : A mm, 2 Cliarl. Ch. Ca. (il ; \\'. N. 
 1S7I!, 'IX See Kiiniinis v. Miilil/niiis.s, 8 1'. II. 320. In L(dr v. /'oolri/, W . N. 
 lS7('p, .J4. an action for breach of covenant in a lease, the defendant had made 
 an asHigiiiiient of one undivided moi»'ty of leasehold pro|)erty, consisting of 
 liuid, brewery and fixtures ; the |ilaintifT having applied for an order for 
 iiis))ectioii of d(Kminents, and the defendant having olijected that the docu- 
 iwntii related solely to liis own title, Archibahl, .1., iiuule the order, Ix^cause 
 it WHS a case of an undivided moiety, the interest in which could only Iw 
 rcali/.ed l)y the iinK/ruct of the whoh- projx'rty. 
 
 As to iiisiH'ction of acompany'H Ixxiks by a shan'liolder, see AV Crciiil f '</., 11 
 Ch. 1). 2r)(i. 
 
 5I»5. Notice to any party to produce any documents For'n of 
 referred to in his pleadiufj; or aftidavitn may be in the produce. 
 Form No. 23 in the Appendix, or to tlie name effect. J. A. 
 Rule 231. 
 
 Tile Kiig. R. 1875, O. 31, r. 1.'), (188;?, R. 3.58), is in fonii imperative, stating 
 that the notice "shall be" in the form referred to. See also /''■ ('mill Co., 11 
 Cii. I). 'i'Ai. 
 
 The fiiriii of the usual notice to prcMluce documents at the trial is No. 24 in 
 the .\p|i. 
 
 As to the effect of not giving a proper notice to priMluce at the trial : see .Sm.'/;/ 
 V. lirii;/, 51 L. r. N. S. 1114 ; .")4 L. .1. Cliy. 132 ; where pai-ol evidence was not 
 .ill<iwe(l to lie given of a d(K;unient in respect of w hich a, /iii'/ii r notice to priKliice 
 liiwl not U'eii givt'n. 
 
 510, The party to whom sucli notice is fiiven shall, Not'cot" 
 witliin 2 days from the receipt of the notice, if all the '""*'*"'' 
 ilocuinents therein referred to have been set forth by him 
 in such affidavit as is mentioned in Kule 513, or if any of 
 the documents referred to in the notice have not been set 
 forth by him in any such aflddavit, then within 4 days from 
 the receipt of the notice, deliver to the party giving the 
 same a notice stating a time within 3 days from the delivery 
 thereof at which the documents, or such of them as he 
 does not object to produce, may be inspected at the office 
 
?;■ • 
 
 '%*w9> -4 
 
 012 
 
 Rules 
 617-ei«. 
 
 A|iii1i 
 liiiii t 
 
 • •I'tlul' 
 
 pa- 
 
 Wbon in- 
 Kiiection 
 objected 
 to. 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 of liiH solicitor, and statinp; which (if any) of the documents 
 he objects to produce and on what ground. Such notice 
 may be in the Form No. 25, in the Appendix, with such 
 variations as oircumstanceH may require. J. A. llulc 232. 
 
 Siitmtiintiiilly the wiiii.- um V.n^. \{. 1H75, O. HI, r. IC, (1«K3, |{. ar.'.l). 
 
 'riicsiiiiH' rules tlmt jfnvirn tlie |iiiMliieti(Hi of (locMiiit'iitHart'applicaliiiMiliirp 
 iiiHiH'ctiiiii is sdiiijflit : sei' <'li<i;i v. Eilimitiniiti, 'I'l Mcnv. 125, iiiid iiutes to Iti'h "itlS; 
 ftlKl tliere is no rijflit to iiis|M'ctioii of <l(icunieiits iis to wliieli tliere i^ iid light 
 to discovery : <'iittnil .Vri'w ( Limilnl ) v. hii/fi'ii Td. I'd., 2H Sol. .lour. ;{!HI;,i(f 
 
 .'.3 L. .(. (/." H. •_':«;. 
 
 liiMiiectioii iiiav Im- ordered ut uuv convenient jijace : see /'nv/nn/ v. Ciiliholn, 
 AH \..T. N. S. :ra ; \V. N. 1,SH3, 111, and note •«'/>'•", l>- 4!'"- 
 
 Order for 
 inspection 
 on default. 
 
 *¥I7. If the party served with notice under Pailo 51(1 
 omits to ^ive such notice of a time for inspection, or objects 
 to fjive inspection, the party desiring it may apply to a 
 Judge for an order for inHi)ection. J. A. Kule 2:};}, 
 
 Identicii: with the Kntf. H. IHTi'i, O. 31, r. 17. That of 18H3, I!. 3fiO, is 
 different. 
 
 »i\H» Every application for an order for inspection of 
 documents shall be made to a .Judge, {n) And, except in 
 the case of tlocuments referred to in the pleadings or affi- 
 davits of the party against whom the application is made, 
 or disclosed in his affidavit of documents, such application 
 shall be founded upon an affidavit shewing of what docu- 
 ments inspection is sought, that the party applying is 
 entitled to inspect them, and that they are in the 
 possession or power of the other party, J. A. Rule 234. 
 
 Identical with the Knff. R. 187"., (). 31, r. IH. See liules of ISW, R. 
 3««). 
 
 (d) The -Master in Chanilx'rs will probably hav(' jurisdiction, as tiie e.\|ire«- 
 aion is not "a .ludffe of tiie High C(nirt." See notes to liules 2 and 30. 
 
 In an action for breach of i)roinise, judgjiieiit went hy default, and tlie ques- 
 tion of damages was referred to the Master. The plaintiff claimed a right to 
 insiR>ct and take cojjies of his letters to the defendant, rh l)eing material to thf 
 question of damages. It was iield that the matter was one for the discretionary 
 jurisdiction of the Coiirt or a .fudge, and inspection was refused o!i the ground 
 that it w<nild increase the co.sts. Tlie Court of Appeal declined to review the 
 decision : Lwdh v. Wolthni; 32 W. R, 1000. 
 
 «SIO. If the party from whom discovery of any kinder 
 inspection is sought objects to the same, or any part there- 
 of, the Court or a Judge, if satisfied that the right to the 
 discovery or inspection sought depends on the determina- 
 tion of any issue or question in dispute in the action, or 
 that for any other reason it is desirable that any issue or 
 question in dispute in the action should be determined 
 before deciding upon the right to the discovery or 
 
INSPECTION OF DOCl'MKNTS. 
 
 513 
 
 inspection, may order that such issue or question heRui'^ao. 
 (letiriiiinc'd first, and reserve the question as to the 
 discovery or inspection. J. A. Rule 285. 
 
 SiiiiM ,is KiiK. I{. l.s:."), (). 'M, v. 1!», (IHKH, K. IMW). 
 
 Thr ri^'l't t" fl"' <liML'i)Vcry or iiiM|mctiuii nf (liKni^iiciits iniiy (It'|)«<i»fl, for 
 (■Xillii|ili', mi iuli«imt»'(l llllt•^flltioll nf piil'tlltTHliiii ; A/'o/i v. 'I'lrn/ill, \',\(']\. I). 
 37*1 ; III' >iii whi'tlii-r an altcnitioii in ii will ii|ion \vl<ioli the riKlitH of tlit* iHirtii^i 
 (lc|K'iiili'<l "US viiliilly nmdc : Hiirnt v. iiiirlur, 12 I'. I{. 4<>7 ; and, in sucli uiih«, 
 till' Ciiiirt or a .ludi^'c inii.v iirdcr tliiit i|ii<'Htion to lie (li'trrniiiKMl firMt, rfserving 
 till' ijiiot inn an tn discoviry or ins|«'ctioii. 
 
 In an actinn fnr an accnunt of prntitM made liv tlic dtfi'ndants as the plain- 
 titf'- iiifnts, tlif dt'ffndaiits denvint,' tin- aK'^ncy, tlic Court di-clincd, until 
 iifliT that i|iif^ition slionld Ixf tried, to order |iro(liu'tion of the invoices of 
 gixHJrt snld liy third jiersniix to tlie defendants, and re-Hold liy tile ilefendantH to 
 the plaintitfM ; the defendantH liavin^r Mworn that thoHe invoices liiul notiiin^' to 
 (III with tile jinint at issue, and that the disclnsiire wonid lie ininrioiis to tliu 
 (ifffiidiints if the plaintiffs failed : Vrrminrk v. Kilininlx, 'M \V. K. 1S!». 
 
 It was held under this Hide, that where a (piestion on exiiiiiination is siih- 
 staiitially answered, a further answer ought not to Im- reijiiired when discovery 
 would 1h' oppressive: Mcd'rri/or v. Mi'Dnnalil, 11 1'. K. liSIJ. 
 
 Ill /'(' Liinli, Itonrliffi v. Lriiih, (5 Ch. I), 'li^'t, where an executrix disputed a 
 liiirsc (lealei's account, and the dispute was whether or not certain horses were 
 sold on cniiiinission, the (!ourt refused to order the horse dealer to disclose the 
 prices, as lieinj,' iininaterial until it had Imh-ii decided that the horses were sold 
 on coiiiniissinn. The cpiestion of lialiility must Ik' one which is Heverablf from 
 thf (|iiestinn nf (lamaf^es. See KIkin v. iUnrkv, 21 \V. K. 447. 
 
 Ill a suit i>y an allejfed next of kin to an intestate, against the solicitor to thf) 
 Trcasiiiy, to whom administration had Ix^en granted, it was held that the defen- 
 dant was not Ujund to make an attidavit of diKMinients relatinff to the estate, 
 iintil a itrimn Jiuie case hiul lieeii made by the plaintiff that he was next of kin : 
 Z^iiif V. (iTdij, L. H. Iti Kfi. 'I'fl. 
 
 A |K'rsnn who had acted as the foreman of a manufacturer's business, filnd a 
 bill against the manufacturer, alleffin^,' that thi' plaintiff was to have a weekly 
 salary, and one-sixth of the profits of the business, and praying an account, 
 and |iayiiient of one-sixth of the profits of the business to him aceordinjfly. 
 Thf defendant by his answer iulmitti^l a riKlit to a weekly salary, and to one- 
 twelfth nf the profits of the business, coupled, however, with an a.freeinent on 
 the part nf the plaintiff, that the latter should take the stater.ieiits of the 
 defendant as to the profits to 1h' true, and should not di'inand or f|uey'„ion the 
 biiKiiicss transiuitions, or be entitled to examine or investigate tin? business 
 IxKiks : it was held that he was not coinpellalde to produce them befort! the 
 liearin^r, their |iriHluction not beinj,' ndevaiit to the issue whether or not the 
 lilaintitf was (iiititled to a decree for an account : Turmii v. liiiiilni, 4 De(t. 
 J. 4 S. Xi± 
 
 See also Porbr v. U'rl/s, IS Ch. 1). 447 : Wooil v. I/<ili,n, Hank, 34 L. T. 
 -•V); ami other cases in notes to Ridi al.S, p. 50.S ; also Jnkii» v. Jinatu, 1.3 
 Ch. I). 370; Eiiijlish v. Tollii; 1 t^. B. I). 141. 
 
 530. If any party fails to comply with any order for fonsoipien- 
 production or inspection of documents, he shall be liable tooi'"^ '"^" 
 
 very. 
 
 )evin^ an 
 
 attachment. If a defendant, he shall be liable to have his"|'''l''f''rv 
 aefeiice, if any, struck out, and to be placed in the same 
 position as if he liad not defended; and the party who 
 obtained the order for production or inspection may apply 
 to the Court or a Judge for an order to that effect, and an 
 i.k. 38 
 
514 
 
 :\IIHCKI<LANEOUH I'UOCRKDINOB. 
 
 Rule 031. 
 
 SorvicK of 
 noticu on 
 Holicitor 
 
 Wlltill Slllll- 
 
 ciuiit. 
 
 Motion to 
 connnlt : 
 Korvioo of 
 iioticoof 
 motion. 
 
 Default ; 
 how eHtab- 
 liRlied. 
 
 DisclmrHi' 
 from cuH- 
 tody, on 
 sul)HC()ucnt 
 obediiiiico. 
 
 Sufficiency 
 of compli- 
 ance; how 
 deter- 
 mined. 
 
 order may be made iiccordiuRly. J. A. Jlule '28(5 ; Cliv. 0. 
 144; 41 V. c. 8, H. !). 
 
 (N)ni|nirt' Knjf. Hulrs of 1SMH, (), ;<!, r. lM, wliidi is to llic sinni' ftfcct, lAoiit 
 that tlif latter also rcfiTH to aiiHVM riiij,' intciinKatoricM, 
 
 WliiTt' a plaintiff faiin tii ('iini|i|y x\itli anonlrr fcu- iiriniiiction of (lociiincntN 
 hf in lial>li' to have HIh action ilisniisscd : lliih' (>4H ; a iilaintifF Ih al.'^o lialj|i' in 
 liavf liiw action diMniiHscd fiif Mc),'lcctinK or rcfnsinK to attcnil for cxaniiiiiitiuii ; 
 //'. .A ilcfcndant ix aNo lial)lc to liiuc iiih defence stiuck ii\il for, (1 ) ne>,'liitiiig 
 
 or refuMinj,' to attend to I xaniined, (•_') or refiLsiuK to In- KWoni, {'A) or rcfiiii. 
 
 iuK' to anMWcr lawful (ine.stion> ; see lluli lll!i, nnd noti'H. 
 
 TIiIh provision does not .seeni to apply in ca.se of disoltedience of a notice to 
 produce H'i veil under linli t!i;{ : s4>e .\}i rrliiiiiln' Jiiiiik \. l'iri:'t"ii,H I'. I!. \Zi 
 
 *i*2l^ Where the application for sucli last nn'iiiioiitd order 
 is made by reason of default in production of books and 
 papers in the Master's oflice, or i)ursuant to an order to 
 produce, or ni carrying in accounts, si'rvicc of ibc notice of 
 motion upon the solicitor of the ixirty retpiired toobiv the 
 same, is to be sullicient service, i.lliy. (). '1\HS. 
 
 The application referred to in liiis Hnlr is one for an order ali.-oliitr locdiii- 
 niit for nonpro<]iietioii of docuiiieiits in tlie Master's oltice, (ji- pnrsiiMiit tn iin 
 <irder to pruliice, or for not liriii^finj,' in accounts. Serx ice of a notii'c ot iiiiiti(]ii 
 to eoniniil is ^'eiierally rc<)uircd to lie personal : Miinn v. I'l i-rii, 7M L. .1. Cliy. 
 L'M, and see ( Jilli-i-t's '( 'liy. I'r. Ills.',), Init this linh makes an exception tc tlif 
 t,'eneral rule, in the eases mentioned : Jti lliiiinlii^ /luniitin \. //iirnilni, \\ 
 I', \i. ;{.■); LM ('. I.. .1. .W. 
 
 Formerly the notice of motion to coimnit for lircicli of an order, nt cniirM' 
 wa.s re(|\iire(l to he a four clear days" notice : ilriiii\. f/atch, "JCIiy. ( ii. I L', lint 
 two clear dav.s" notice seems now sutticient : /!i'/i I"!* ; hiit see Hj-flinnnr Honk 
 V. Nmrll, 1!) C. L. .1. 'IWX 
 
 Amotion to commit must he made liefore a .ludf,'e in ( 'liamher- : h''iff\. 
 Wiiiit, 18 C. L. .1. l(i(i. 
 
 On niotion.s to commit for non-production, (jr not hrin^'iuK' accoiuits iiitu 
 the Master's office, the Master is to (htermine whether the party ha^^ Iki'Ii 
 sutficientlv notified. The Master's certificate of default is the only evidcuoMif 
 default w)ucli is necessary, or lan he used: I'li.rlnii \. lJri/<liii, Ii I'. If-'*!'; 
 Wihitii V. Wilson, 7 I'. \i. "'" ; hut on motions to (-ommit for non-|)riHluctiiii) in 
 th(M)fHce of the Clerk of Uecords and Writs, or a KcKistrar, Lipcal licKi^trar, 
 |)eputy Clerk of the Crown, or l)eputy He^ristrar, it is necessary to prove tlit 
 dtie service of the order, and also to producre the certificate of the officer tliat it 
 liaH not JH'cn complied w ith : lli. 
 
 The certificate of default should hear the '.atest po.ssilile date : SuhK-rrillt 
 V. Joi/rr, 1 f!hy. Ch, •Jdli. Such a certificate may lie read, tliouKh no notice nf 
 rciMliuf,' it heffiven : Miilhtrh v. P/tniki't, 1 Chy. Ch. ;!H1. 
 
 Wliere the order ha^ heeii complied with, after notice of motion served, the 
 motion will he refused, liut the applicant will Iw entitle<l to his costs: //;,,■ 
 Henir v. Mfion, 1 Chy. Ch. 107. 
 
 An<l even after conm.ittal for not IjrinKing i>i ncconnts, the jiarty is entitled 
 to 1)(^ discharged on production of the Slaster's certificate that tlie uccoimtK 
 have iM'eii l>r()iight in, and the sufticiienoy of the .accounts will not he iiuinire<l 
 into on the apjilination for dis(diar(,'e, nor will the i>aynient of costs he imimIc » 
 condition precedent of the distdiarge ; C/iirk v. Chirk, 'A Chy. Ch. <•". 
 
 Where the party has complied with the order, hut it is contended his coinpli- 
 anw is InHuftloient, the (piestion of sufticieticy must 1k> detemiined in wi.m's 
 INjnding in the Master's office, hy the Master iijion a warrant to bring in h ''^''^j'' 
 affidavit, or accounts, as the ca.se may he : Mtrkleii v. CuksiIvmu, 1 Cliy. Cli. 
 'M2 ; and ni>f W'ihmi v. H'itmn, 7 P. K". .57. 
 
rM 
 
 DI8C0VERV AND INSl'KCTION OF DOOUMKNTH. 
 
 516 
 
 lint wlitri' tlit'i-c Ih nil allr^jrcd iiiMiitiicit'iit cninpliiiiicc with im nnlrr in the Rules 
 (ittiii'if til'' Cl'-rk of KccordM iuhI Writs, Ki't^i.striir, L<k'ii1 HiKiftiin'. I )i'|>iit.v 522-024, 
 Clfiknf tilt' Cniwii, (ir l)i'|iuty Ht'^'i.Htnir, tln' iiui'sticm nf sutficii'iicy imiMt Im' 
 ilctciinini'il I'll iiiotiiiii ill Cliiiiiilx'fK to cdiiiiM'! llif party tn liriiiK' in ii Itettcr 
 iittidinit, iM' in (li'fimlt that hi- lie (Miiniiiittril : JIohh v. /{iiIh rlxoii, liChy, VAu (Ki. 
 
 Horvlcc (if 
 (inhir tin 
 Holicitor 
 
 WllCll Blllll- 
 
 int'iit. 
 
 522. Sorvict! of im ortU-r Tor cliHcovory or inspection 
 niado u<,'iiinHt any pftrty on liiH Holitdtor Hlmll be sulHcient 
 aervicc to found an application for an attachrnont for dis- 
 obedience to the order. But the party against wiiom the 
 iil)[)li(;ation for an attachment is made may shew in answer 
 to tho iip|)hcation that he lias had no notice or knowledge 
 of the order. J. A. Uule 2:J7. 
 
 IdHiticiil with th.' KiiK. II. 1S7.\ (). 'M, r. iM, (l.SH;i. |{. 'MH, which also 
 iiidn(li>: aiii'i'dfr for intrrroKatorifs). ('hy. (I. O. \M, was to tlif Niiiui' eifcct. 
 
 Tliin Itiili was held to apply whrrf after jiid^fini'iit in an action for spcciHo 
 |]<'rfiiriiianci', an order was 111 (taincd riiiiiiriii),' dcfenilaiit within four days to 
 priKlmf the alistract aiai all dci'ds and writings, flc, for the inspeetion of the 
 lilaiiilitF. iuid this older was served on the defendant's snlieitor : .A"/ v. Ilnil/n/, 
 Lt'Cli. I». :.71. 
 
 aili, A solicitor upon wlioui an ordt^' against any i)arty Attacii 
 for discovery or msjiection is served under the last liule, solicitor, 
 who neglects without reasonable excuse to give notice 
 thereof to his client shall be liable to an attachment. J. A. 
 Rule 238. 
 
 Siiuieas MiiK. 1{. isr;"), (). 81, r. -Jl', (IHHH, K. ;«(;")). 
 
 524. The preceding Rules as to preliminary exaraina- ""Ior. as to 
 tion of parties, and discovery and inspection of documents, tion!'au- 
 Khall, so far as practicable, apply to parties residing out of'i°^^ll^l^^ 
 Ontario, and in such cases the Court or Judge may order '"i{\'iJ's^ro° 
 the examination of tho parties to be taken at sucli place Ki;iiii« "ut 
 and in such manner as may seem just and convenient, " 
 and service of the order for examination, discovery or 
 inspeetion, and of all other papers necessary to obtain the 
 benefit of the provisions of the stid Rules shall be sufficient 
 if made on the solicitor of the pavty in the action, in the 
 same manner as other papers in the action are served on 
 the solicitor therein ; unless the Court or Judge makes 
 other order to the contrary ; and if there is no such solici- 
 tor, or he cannot for any reason be served, the Court or 
 Judge may order the service in any other manner to be 
 mentioned in the order in that behalf. 41 V. c. 8, s. 9. 
 
 S«e notes to Rule 4S7, 1). 4«5. 
 
 
 ^ 
 
 5^ 
 
516 
 
 Rules 
 626, 636. 
 
 miscellaneous proceedinss. 
 
 10 Motions and other Applications. 
 (i) Generally. 
 
 «oii"o* •"52»5. Whfirc any application is authorized to be made 
 
 Court or to the Coui't or a Judge in an action or proceeding, such 
 by^notion.* appHcation shall be made by motion. J. A. liule 40i. 
 
 By the Kng. R. 187ii, O. ."iS, r. 1, (1883, K. (J'.Mi) it w only to a DiviHiimal 
 Court, or to a Judffe Hitting in Court, tliat tiic apiiliuation is liy motion. NViien 
 insvfle to a .Tud(?<> in Chamljers, a rule or order to mIhav cause contiiine.s in 
 England to bt> C,w. course. 
 
 A notice of motion for attachnient stating that tiie Court would he moved of 
 the Itoyid Vourtn of Justice was held sufficient : I'ettif v. JMiiiel, 34 Cii. D. 172. 
 
 No rule or 
 order nisi. 
 
 Si^Hm No summons, rule or order toj^hew cause shall be 
 granted in any action [or matter] ; but when any person 
 other than the applicant is entitled to be heard thereon, he 
 shall be served with a notice of the motion. See J. A. Rules 
 405, 412. 
 
 The Kng. R. 1875, O. 53, r. 2, liiul not the words "or matter," and instciid 
 of the last clause, like original J{(i/f4i)5, concluded as follows: "except in the 
 cases in which an application for such rule or order is exjiresslv authoriziKl 'iv 
 tliese Rules." The Kng. Rule of 1883, R. (iltV, is (lifferent. h'or wiint of the 
 omitted words "or matter," there was a difference in Kiiglantl lietweeii rules or 
 orders miwle in actions and those nuule in "matters." 
 
 Thus in motions to set aside an award the old practice was lield to pi-evail : R' 
 I'hilips.i-aUl, 1 t^. ]$. 1). 78; /liiliiiimiii v. J{i,hi„s„„, 24 W. R. (J,"); .V) L. T. X. S. 
 3;i7 ; Jii' Oijilrif'fi Arhitnition, W. N. 187!), 151. B\it motions against Slieritfs to 
 compel the |)ayment over of moneys levied under an execution : lifhiwr v. 
 Fm-mantle, 3 Kx. ]). 237; (Init see Fmrler v. AxJi/md, 45 L. T. N. S. 4(1): 
 motions to refer hack a rejMirt to a referee : Onnrx v. Tiii/Zni; 27 W. K. 412; 
 J)i//:i; v. CaniieU, W. N. 1883, 105; and motions to strike a .solicitor off the 
 Rolls; Itc >S<,Uri/or, W. N. 188(t, 3(( ; Jit Ciijij), 32 W. I{. 25, were held not 
 expressly authorized l)y tlm Kiilcn (prior to 1883, R. t>!(7) to lie liy nile to .shew 
 cause, and therefore shoidd he by notice of motion. 
 
 Tiiese distinctions ))rol)ably d') not exist in this Province under the wider 
 terms of the above Jiulr. 
 
 As to motions to set aside awards, .see Riilt 534. 
 
 Tliis Riilr forbids tlie trnuiting of a rule to shew cause « liere an applioitio!! 
 is made in the Couaty Court against tlie judgment of a County Court •ludtfi' 
 wlio tries without a jury : Wil/icni.i v. Cniir, i(( ()nt. Apj). 301. 
 
 In Ri' f.endi'r Lmif Ar/iih-iiti'nn, 13 1'. R. 1(1.'}, it was held that a iimtion on 
 wliicli, Iw'fore the Riifi's, tlie ai)plicant was not I'Utitled to be heard may umliT 
 this /i'lilr V)e made cr /lar/r. 
 
 In /ffwi.siin v. J'riiilirnh; (> Out. 170, Rose, .1., held that in motions to (luasii 
 
 by-laws the autliority to niaki! the motion was not derived from the llu/ivhwl 
 
 from s. 322 of the Munie.i|)al Act, or s. '.YM of 40 Viet. c. 18, and 1)V tliat section 
 tl ■ ... - 
 
 V! procedtire was to be l)y nde, more especially since 40 V. e. 18, s, 334, wan 
 
 as.sed after The Juilicdturc Act and Rulis. Sinci- that decision tlie I'eviseii 
 
 tatutes have re-enacted tlu' provisions of above .sec. 331 (R. S. <). 18S7, c. W- 
 
 332), and the Con. Rides passed subsequently to the Statutes lia\e ic|i('iitHl 
 
 the alHive /{i(/r 520. It has therefore Ijeen held in Rf I'rck- .(• Anirli'islinrn, 
 
 12 P. R. 004, that on motions to cpiasli by-laws the practice is now derivifl 
 from the /J"/'^, and such niotions arc therefore no longer to be liy rule insi, but 
 
 by notice of motion under Hidi 
 
 Ii 
 
 1 view, lio\v« 
 
 VC1-, of the tcrilisof tlieMiMl. 
 
 Act, (R. i:>. ()., c. 184), s. 332, the notice of motion to (juash uiii 
 
 ,ist lie .sel'vul 
 
MOTIONS. 
 
 517 
 
 four C'lf'ar (layn iH'fore th« day on which thu iiiotion in to Ihi iiiwle. A noticf RulOB 
 not siiHiciciit iiiidcr tho last dooisioii, was hold to have Iwoii waivod l>y doinand- 627, SS8. 
 iiip aftidavits, and obtainiiiff an onlaiV'iiK'iit of thi^ motion : Re FttrHinj it' 
 Mmrislui,!/, II C. L. T. l<t!». 
 
 Affidavits to Ih' n>ail in KU])|Mirt of a notice of motion niiist ho filod l)ofore the 
 notico is sorvod : /{I'lr (ilii. AHidavits in answor to a motion must Ih^ filed 
 ix'foi'f tlioy can l>o roiwl Init not nocossarily tiled the day before, as was fonnerly 
 till' practice in Ciiaiicery. 
 
 Where !i party olitaine('. an enlargement on terms to tile atfidavitH, but did 
 not coniplv with tiie terms, lie was not allowed to read the affidavits ; <'iiiii/ihf/l 
 V. .1/"-////. 11 I'. I{. ;Vl!t. 
 
 527. Tilt' Court or Judffe, il" satisfied that the delay -"^'"V"* "' 
 caused by proceedin<; by notice of motion would or iuip;ht wiion 
 entail irreparable or serious mischief, may make any order |!a»•^■ can 
 ex jxiiir, ui)on such terms as to costs or otherwise, and sub- '"^ "'*'^"' 
 ject to such undertakin",', if any, as the Court or Judge may 
 think just : and any party affected by sucli order may move 
 to set aside or vary' the same. J. A. Kule 40t). 
 
 Tile Kiik'- H. \X"}, O. r.3. r. 3 (\HH'^, H. (1!»8), has not the words, " or vary." 
 As to what motions are rx /iitilf, see Dan. l*r. .">tiL ed. 1-441, l!K)!t, and Jtule 
 
 Xo onler of any moment s'-imld i>e made i .r ;)('/Yr except in a ease of emer- 
 (ri'iKiv; Tliiini'is \-. Sli}ri II, 11 I'. !{. 117. An i r /xirti order is always taken at 
 the jHTJI of the party, and is liable to lie nioved aj^ainst, if impro|H'rly made, or 
 if nialeri;il facts ;iro su|ipressed on tiie hearinvf of it; Stnriivim \. Hoiikir, 1 
 iMi. & S. 4S4; Jt, (,nlfi., 1,-) Meav. •_>54 ; ('(,.tiiri,ihl v. H'IuiIk, 3 Out. ;W4 ; 
 h'me.iv. Finliir. 4 Ont. (>••. 
 
 A,' /tf»r?( , irdirs shonld lie serve<l as soon as possible : Clnirch v. AfiirKli,2 
 Hii. Ii.")2; Da.. I'r. otii oil. 14H(i. An order made on a motion on which a party 
 atfi'cteil ap|ii;ired, rlnos not nec'ossarilv recpiire to be served on siicli party : 
 Fiirilfii v. Iiirl,tii\ •.;:< n. W. D. lL'4. 
 
 .\ motion for leave to effect sulwtitiited service of a n<itice of motion is rx 
 fiiirti : lliniiilliiit v. Ititriix, W. N. ISStl, 82. 
 
 .Motions for leave to appeal from a rejxirt : /fumilton v. Tincl, !) I*. R. 44S ; 
 tu stay exi'cutioM : a. T. Iln. ('". v. Out. <(• Qiiilitr Rii. I'd., !( 1'. H. 420 ; to dis- 
 miss an alianiloned apjieal : Onm nul v. /i/nisi/ii/r, 54 L. 'I'. N. S. ;143 ; or under 
 Itnl'M;-. Hodi,/ V. tlilbirt, 12 I'. K. 11 t, siiould not lie made r,c imrtc. 
 
 An i.r /Kii'i order for the examimition of a witness dangerously ill was up- 
 iidd as liiiiij,' in aecordan<M' with the former Ciiancory practice; Ikilur v. 
 Jiu-hiiH, In V. U. (;24. 
 
 As to Hiovinj,' a^'ainst (X imrli orders ; see lli'lf 'I'M't and notes. 
 
 Where the party movinir does not ajipear, the motion is called ivn al)andoned 
 motion, ami tiie opposite parly is I'Utitleii to ask for the costs of it; Jinn;/ v. 
 Efchitini, Tniiliini Ci,., 1 (,». H. I). 77 ; iMists of affidavits prepared liut not filed 
 at tlie (late of abandonment were allowed, in HiirriKiin y.Lciihur, KiCli. D. ,V)!t. 
 
 .\s to proof (if sorvice w here tlie op|)osite party does not a])pcar, see S'ntir v. 
 H'.W,, 2.-) Cii. D. K4, and note to /^'/. (IKi. 
 
 52H. Where infants are concerned, no order dispensing vyiiunguar- 
 with payment of money into Court is to be made without notmed.^ 
 notice to the guardian ad litem of the infants. J. A. Rule 
 505. 
 
fil-i^ 
 
 'vlM' U' 
 
 518 
 
 MISCELLANEOUS PROCEKDINOS. 
 
 Rules 
 529, 630. 
 
 served. 
 
 *>2U. If on tlu! hearing of ii motion or other uppUcation, 
 A^riuom.r ^^^^ Court or Judge is of opinion tiiat any perwon to whom 
 parties not notice has nof lieoi given ought to have liad notice,!' 
 Court ov Judge may eitht-r dismiss tiie motion or mpl 
 tion, (\ adjourn the liearing thereof in order that noiice may 
 he given, upon sucii terms, if any. as the Court or Jii(l;,'c 
 may think lit to impose. J. A. IJule -lOH. 
 
 Idflitical witli KiiK. I{- 1H;.\ O. :'>:{ r. a (1HH:1, K. 701). 
 
 Interim 
 alimony. 
 
 S!<0. No apphcaiioii for interim siHmony shall he made 
 mitil the time for delivering the defence has e.vpiroil. 
 Chy. O. IMS). 
 
 if iiKliirscniiiit. on writ of claiin fnr inti'iin. 
 ted, an aindiiatinii fur 
 only run fmin tlic dati- 
 
 Interim Alimony. I'di' fnru: m niuiirscMnin dh «rii 1)1 ciiiiui Mil iiiii'Miu 
 alinmnv : ^•(■<• Fcn-ni !M/.). If tin- inddr-icnitnt is (iniittcd, an a|iiilii.atinii fur 
 
 Interim 
 alimony 
 when 
 allowed. 
 
 From wiiHt 
 
 date 
 
 allowed. 
 
 ibiiiiMiii> : s('f I'liiiii ;fi/i;. ii iiif iimk ir^t'iiifiit is iiiiiiitrii, iiii .t|i|iiii..ui<iii iiir 
 
 intcrini idiniony may Iw madi', Imt in siicii case it will only run fnnii tliiilatr 
 of the older ; and no costs of tlif motion will Ik> allowfd : I'lh ntiiii \. I'lttrmm, 
 
 (i r. w. i.vi. 
 
 Till' :i|i|)liciition may !«• made at any time after a statement of defence liii< 
 lieen tiled : iiiniiiiiii v. itoriiiiui, before I'roiidfoot, V'.C, 20tli Se|itenilier. 1H7J; 
 orafter the time foi' deli\eiinK it lias e\|iired : /'irk v. /'m7.-, !I I' l{. L'il'.t; miW 
 the defendant has jfiven iiotiee under /ti'li T-W. 
 
 Tlie allowanee of alimony /n m/i iil( /iVc (le|ieiids on the marital ielatiiiii<lii|i 
 between tlie ji.irties existing''' Jncl'; and the Court e\enisi s a disi retieii in 
 ^'rantin^nir « itiiholdimj: alimonv /iiinlinli Hh whieh is re;,'ul.ited Ky the ciromii- 
 stances of eaiii case : lVi'//,vr v. Wiilkn; HI I'. K. Cli:!. 
 
 Interim alimony is alloued, w lu;n necessary, for the maintenance of tlic 
 plaintiff: Smi/isy. Smi/i .i, ',\ (iv. 11.'?: 'i'liiiiiiiixini \. ThniiiiiKuii, \,, It. 1 1*. it 1). 
 ^M: liut not asot coui'se. and if the |ilaintitl' is shown noi to 1m in need of siipiKii't. 
 it may he refused : Itniilli 11 v. l\,-i<iU, ,;, \\ ( 'jiy. Ch. WIW ; S„ii>h v. ,S'm/'//, Ii I'. \\. 
 r)l ; KMiifiii V. Kiiitiiii, lL' r. It. Id.'). Interim ainnony is payahle frmii theiliiti' 
 of the serv'iee of the writ, if there tins Iteeii no ilel.'iv in iii.'i.lviiiLi* 1 he Miiii]ic;itlo)i : 
 
 Evidence 
 required 
 on motion 
 for interim 
 alimony. 
 
 On a motion for interim alimony, it is sufficient if a ilr fuflu iMiirniiife 
 j)ri)ved : Tdiilor v. Tnjilnr. 1 Chy. Ch. 'l'X\\ its v.iliilily camiot !)!• iii(|iiiriil 
 nito : /{iiiilli II V. /Iiiiil/i I/, .fii/ii'ii : h'lilmi \ . Sulmi, I < 'In. ( 'h. ;it)S : < 'iirr v. t'nn: 
 2 Chy. Ch. 71 : Wiiiku- v. W'u'l.n, 1(1 I'. I!. 'MVA : nor cm any i|Mestiiiii .iffirt 
 in^f the merits of t he action ; thus, alleged adiilteiy hy plaintitV cimml he niisni 
 on such an application: (<///(/.//(// v. t iin./ihi//, Ct I*. |{. ll'S ; nor the i|iii'sti"n 
 wlietlier the plaintiff is justified in lea\ in;/ theilelendant : IWIsmi \ . Il'//.sii». /'».. 
 I'M! . L'„;ii, , A'/,/;, 7 i> I* ,11 
 
 12!) ; Krilh v. Ktltli, 7 V. H. II. 
 
 Plaintiff 
 muKt un- 
 dertake t( 
 proceed ti 
 trial at 
 next 
 sittings. 
 
MOTIONS. 
 
 519 
 
 It w'liiilil si'ciii tliivt t\w nlaintitf's Holicitur lias no lion for IiIh costs on moneys Rule 630. 
 |iai<l ti> liiiM f'li' interim alimony : rVox.s v. C'/o.sx, 4H li. T. X. S. WXi ; and see 
 /,', llnl,iii.v,ii, 77 li. T. -InU!'. I'.'ii', Lictr V. Lnlt; 4(1 li. 'I'. N. S. 7W. 
 
 Willie iiiterin, alimony Ii.kI not been ajiplie;! for, the Court refused to order Wliuroin 
 till' iMiiiiiiiieiit alimony to run from a date prior to tlw decree : Siiii/(.'< v. Snitltn, torim all- 
 ;i(ir. ll.'i. I'liit uliere tlie linshand liail af;reed to a separation, and tc; iiay tin i-,if 
 
 plaiiitilf an aliowaiute, the (Nnnt awarded oeriiiaiient alimony at tlK^ rate "■'''' ""'' '" 
 
 iiirreiM' 
 
 iVariled I 
 to lie paid liy defendant, and direeted 
 writ, tlioiiLTh no applieation had I 
 \tiilliiril. iiefore liovd, 
 
 all 
 
 mony not 
 iliudfoi 
 periiianunt 
 
 ('. 
 
 for iiit(!rlm 
 alimony. 
 
 iiid direeted payment from tile date of the H,ijmony 
 leeii made for interim alimony : Mulltirn ;. ordoroa 
 
 , , at ColioiMK, -lid April, IKHH; and permanent only from 
 
 iiiHiiiy lias heeii (,'1. lilted from the service of the \\ rit, wliere no ai)j)lii:ation for d'lJ'O "f «er- 
 trriiii aliiiiniiy was made, and jiid^rmeiit was obtained on motion in default of ].'I;^V,,ti', , ' 
 (IrfciK (■ (tlie notice of motion for iiidKmeiit, statin^' that it would he so asked): j', ,.j,jj, 
 H'i[l<iil I V. Ilii;i<ii-fi/, liefore lloyd, ('., llth Keli., ISHo. 
 
 Till' pMyiiieiitof interii.i alimony lias lieen stayed until the plaintiff pnxlnced 
 ciiKi.ith linoksand papers wliii:li she had taken from iier hushand, and which 
 di'|iri\eil liiiii of the means of (layiiiK it : Olil v. (t/il, it I*. K. ')~)2. 
 
 Where, lifter an order for interim ;ilimony, the wife returned to her liiiHliancrs Motion to 
 lliiil.-ie, ami resiiled there for • oine time, liiit was afterwanls compelled to leave, set iisule 
 liy iiM-oii of eriuity ; amotion to set aside the order for interim alimony on "'"' 
 tiicgi'oaiid of condonation was refused : Md.'ii-tll v. Mi(jnril!, 1 V,\\y. Cli. 27. 
 
 .Vii order cannot Im- made in ChamlMTs, even on con.sent, for payment of iM^r- 
 iiiiiiieiit alimony, as that is eipiivalent to a jild^'ment in the action : see Criii'/ v. 
 Cr.ii;!, 1 Chv. rii. »1. 
 
 Amount to be Allowed. There is no fixed rule as to the amount to be .\moiiiit to 
 .iJliiu. <\ for interim alimony. In I'lntfland, the rule i^ iisiiaiiy to allo'v about one- '»' allowed 
 tiftliof the aiiiiiial income of thi' husband, but it is in the discretion or' the ('ourt, 
 ainliiiay vary accordintf to the lirciinistances of the case. I?u'., in this Province 
 a |ii'i'(iiita^fe on tiie income is not alwjiys the measure for the allowance, and 
 till' value of the defendiint"s labour may also be take", intoaieoun' • MvCnlincli 
 V, Mrl'iilhirli, 10 (Jr. ;il.'0. The .diouaiice is Usually less tiiaii would be allowed 
 a-- iHiiiiaiieiit aliiiioiiv. the wife lieim,'- bound III ikIi nil ni( to live in retirement 
 ami sccliisicin : ( 'ooti' Keel. I'r. WW; /!,,s v. /.Vr.s-, ;{ I'hill. ;{S!I ; ll,iirl:,K v. 
 Ih'd .V, 1 lla^,% rc'li; ()lir„i/ v. Olmn/, •> I'hill. lOM. As to the effect of Tin' 
 Mmriiii W'diiK ii's J'ra/K r'l/ -If/, oil I lie li^llt to alimoiiv, see Wi/.ioii v. W'ilnoii, 
 •1 lla-K- -'») : MI'ii' V. .I////K, 2 L. I{. I', it M. -JOL' ; S.i L. T. X. S. H77. 
 
 Where the iletetidaiit had agreed to pay tlie plaiiitilf an allowance for her 
 si'parate iiiaii'lenance, anil siibseipiently a suit was brouf,dit for alimony, and 
 fur speeilic |M rformance of till' .iKieti. lent, and the plaintiff obtained an order 
 fur iiiteiiiii ahi'.iony, and siiliseipiently a decree for spei'iHe perfoiniaiUM', it was 
 lu'!(i thai the plaintiff was bound to credit the sums received as interim alimony 
 nil iu:i(piiiit of til.' sums p.iyable under the ajfreemeiit i Mii.rin/1 v. Muxi'rU, 7 
 1'. K. (i:i. 
 
 Wliire a plaintiff in an alimony suit inipro|)erly ref^istered a h'.i lunilrns the 
 nrtiticate was vacated, and the costs of the motion were ordered to be deducted 
 h.mi the interim alimony : Cniailill v. Cniiiitill, 20 C'. L. ,1. .'{2!l. See Wkit< 
 V. ir/M7«, (1 I'. H. 20S, and notes to liult 24S, p. 2H0. 
 
 Coats. In iiddition to interim alimony, tin plaiiitilf is also entitled to an Costs i/c i/i« 
 iii'ili'r for payment <li ilit in i/,t in of the cash disbursements, properly made by in ilieiit. 
 Ili'rsdiieitijr' : /^/',■ H.S.'i. 
 
 Thi'si' disbursements do not incluile fees to ajfeiits for .solicitor's services, but 
 fi'cs to couiisrl, even where the .solicitor or his |iartner, is the counsel, may l)e 
 imiiideil : llniilhii v. Hviullni, 10 I'. I{. ")71 ; 21 T. 1.. .1. 141 ; fmii-inn v. /if/nfiii. 
 I'l P. I{. .Milt; Af.ii/nni v. Afir/ii,;! , 10 V. It. ."•)7(t ; but see' ob.servat ions of 
 •W.T, .l.,\., ill this case, and Ln/umff v. f.iilniiili, 11 1'. It. 14;{, where I'roud- 
 f|«it, .1., refused to follow Mniiinti v. Mii<inni, ' ijna. Itut where an order for 
 iiiti'riiii .iliiiioiiy was t,'rarte(l (the defendant not appeariii),' on the motion), for 
 till- aiiinunt iiidorse.l on the iiill, anil the defendant subseipiently moverl to 
 ri'diiic the amount as e.vcessive ; a reference was granted, on payment of full 
 t'listsi.f the iipplication : //w/«r v. /Too/jcr, 3 Chy. Cli. 114. 
 
 525SL 
 
 :M^ 
 
Ko({i8tra- 
 tion of 
 order. 
 
 Ail.joiirn- 
 ment. 
 
 Kcrvicc 
 hefore ap- 
 pearance. 
 
 520 MISCELLANEOUS PROCEEDINOS. 
 
 Rules WhfTC! beforo trial an ivlinionv «iiit U coiniiromiHwl by th(! parties, tlir iiIaintilT 
 
 S31-S34. nauniiiiR t(i co-habitutioii with the dt^fcndant, t\w Holieitfir of tbi' plaintiff \f 
 not cntitlod to Iuh ooHts fntin tlif dcffindant as lj»'tw«f<'n Holicitor and client, liiit 
 only to ca.><h diHlnu'si'incnts : /tiiii/rorr v. Kiuiirorv, 10 I*. K. 2!)(t, iV.HJ, over- 
 ruling Lcoiun'd v. LKnuinl, !! V. R. 4.5<( ; Monvr v. Mmirf, 10 P. K. 2S4 ; and sec 
 Thiimiisim v. TlKmipunn, ,57 L. 'V. X. S. 37-1 ; but sen Rule 1170 ; Fwrix v. AVrrw, 
 7 Ont. 4!Mi; li, Fiii'ilhi'm, 10 1'. I). 112. 
 
 Registration of Order. An onlcr for )iaynicnt of int<-rini alimony and dis- 
 bursfuicntH may 1h' rcgiMtfrt^l : sec H. ,S. O. 1HH7 c. 44, .h. 30, .v»/(m p. L';i. 
 Milhr V. Milln; S C. L. 'i'. 120. 
 
 ♦5Jtl. Tlie hearing of siny niotion oir application may 
 from time to time be adjourned upon such terms, if any, 
 as the Court or Judge shall think fit, J. A. llule 40!). 
 
 Identical with tlio Kn^-. K. 1H7,-). <). .-j.S, r. (1SH3, K. 702). 
 
 *i'A*2. The plainlifif shall, without any special leave, be 
 at liberty to serve any notice of motion or other notice, or 
 any petition upon any defendant, who, having been duly 
 served with a writ of summons to appear in the action, has 
 not appeared within the time limited for that purpose. 
 J. A. Kule 410. 
 
 Identical with the Knp. H. 187."), (). ')•^, r. 7 (1«K3 U. 703). 
 
 Service ^SSit. The i)laintiff may also, without any special k-avej 
 
 witii writ , . ,, i ' I* • * A ' 1 1 
 
 or before servc a notice 01 motu)n tor an injunction, and may, i)y 
 time for jg.^yg qJ ^jy (jourt or a Judge to be obtained f.r jHirtc, serve 
 any [other] notice of motion, upon any dcifendant along 
 with the '.\'rit of summons, or at any time after issue 
 of the writ of summons, and before tiie time limited for 
 the appearance of such defendant. J. A. llule 411. 
 
 The words in brackets wliicdi were not in the Kn^r. H. 1H7.'>, (). .W, r. S, are in 
 that of 1SH.S, H. 704; the l{ii/(s are otherwise the s.-mie. The above l.'i'l' 
 thus makes a distinction l>etween notices of motion for an injunetinn and 
 other notices of motion, authorizinj,'- the former to be sei'ved before appeaialiie, 
 without leave, Init recpiirinf,' leave for such service in the case of otiier niitices 
 of motion. The I"]nf,'liHh Huli' recpiires jirevious leave, in all ca>es in wliicli 
 notice is served l)efore the time liniited for apjH'arance, li\it the correspondin},' 
 Tvish Hule was held ill Firiii/i V. C<,//rs; 17 L. I!. Ir. 2;W, not t'. apply to 
 injunctions. 
 
 Where an affidavit was sworn before the issue of the writ, an inj\ui(tinM Hii- 
 granted (x jimir on tiie nndertakinu'' of counsel to have the atfidsvit re-<\viini 
 and tiled : i;rnn v. /'n'n,; W. N. ISSC, 50. 
 
 apiiear 
 ancc. 
 
 irreRii- 5J14. A notice of motion to set aside any proeeediiiff 
 
 larity to be , . ,., , -ci lii • i-i 
 
 ctatedin for irregularity niust specifv^ clearly the irregularity com- 
 notice. plained of and the several objections intended to be insisted 
 on. Chy. (). '277. lUiles T. T. 1850, 107. 
 
 This Hk/'' is to tin- same effect hk Eiig. H. of lSH;i, lO.S!*, and is in acmnlance 
 with the former t-'liv. I'ractic<^ : see /'<,<,/,■ y. I'ui.h; •> Chy. Ch. 370 ; /'""'"i/ 
 Jv',h:% 4C1iv. C'li. 4S; O-ltiilli/ V. .l/".',r, 1 ('. L. T. oC..'.. 
 
 ■. ..■'►y"f9 ■■;•';'■'■ 
 
MOTIONS. 
 
 521 
 
 ilarity c<»iij>liuii<<l of, whs not tliiis sixriticd, 
 
 ■ity wiVH provt'fl ; hniiiiiiiin S. ,{• I. 
 
 lit; ««■<! also lili'in v. Hiniii, !» 1*. H. '.'(ill; iiiid l'<tlii v. 
 
 Rules 
 036-637. 
 
 Party niov- 
 m\i inuHt 
 1hi roj-ular, 
 anil move 
 |)i'(iinptly. 
 
 It may iK'siitticicnt if tlif noticf refers to (jrnnim'sof irrcg'ularity ajiiK^ariiiK in 
 til"' atti(lavits. Where an irrejfnlarity coini " 
 
 tile niiiticpn was dismissed, tlioiigli the irreKiilarity was proved ; htuiiiiiiin S. ,{• I. 
 C: V. A'///"V, 12 I*. K 
 liiiiiiil/MV,\\. I). 172. 
 
 A jiarty moving against an irn-ffidarity must himself Ik- reK'ular, and is not 
 cntitlfd to anv indidg'ence : Sinit v. Iti'nihniii, ',\ C'liv. V,\\. 'AW ; W'nliicnt. v. 
 lun-niii, r, \'.\{. 31; /'""/'• v. I'i>„h\ 2 Cliv. Oh. ;{7!l; h«n<lhi v. ./'.»«. I 
 Chv. Ch. 4H: he nnist move promptly: MiUic v. .)/////•/•, !t V. V.. L. .1. 1:?2 ; 
 and iM'fore taking' a fi'esji step in the action : Miiiiiiiiiii v. /tirrli/, 2('. L. .1. 
 ;<,'!1 ; l.dd-iii v. AiKisti-niiii, 1 Cliy. Ch. 'M ; A/ •iHrni v. hcirks, 'A Ij. T. N. S. 
 42(1; AV// \. M'liiri, 2H (7. H. I>. H'.*5 ; or niakinvr any denian<l res|«'(!tin(i: the 
 alle^fcd irretfular pro<;eedin^fs whieh would put the op|M(site party to expense : 
 (■»,/„■«/'/■ V. Ihniiillnii, 2 <"hy. C;h. 2H2 ; li<iiiirll v. (t'Mi;i,;i, 2 Thy. Ch. 1ll7; 
 Hi Fiirliiiiiir itiul Murrixliurii, !( (". \i. T. HH( : or he may Im- held to have 
 waived the irregularity. 
 
 I'niceediiigs that are merely irregular are valid until set aside, Init a nullity 
 liai Mil effect whatever; Fulh-r v. McL)<i>i, H I*. K. 54^. 
 
 !i\t!i. Every notice of motion by way of appeal or to sct^'"Mo" 
 aside an award shall specify the grounds intended to be award, 
 insisted on. See liules T. T. 1850, 141. 
 
 mm. Any party affected by an ex parte order, except the i-:r farte 
 
 • :, , • 1 .1 orilm-H may 
 
 piirty issmnp; tlie same, may move to rescind or vary the i)e movod 
 saino hefore the Judf^o or ofticer who made the order, oi- "^'''""''^• 
 any . hid {re or officer having jurisdiction, within four days 
 from the time of its coming to his notice, or witiiin such 
 further time as the Court or Judge may allow, and whether 
 it has been acted upon by the party issuing tlie order or 
 not, Xcir. 
 
 Tills /i'i(/c was pass<d to me<'t the ohjections and dittieulties raised in Id/iin v. 
 Ciiiiiil,! Siiiilhn-ii Hii. ''"., 1(1 I'. K. oXi; .\L-N<ilil, v. (t/>/.i„liiimrr, 11 I'. I{. 214. 
 and I'ln/lor v. Sintii-x of Chiiriln, il>. 4!t(): see Hwilux v. /•';>/</, !l V. K. 127. 
 
 S<ralso Itniilf v. Siickn; .3!) Ch. I). 24'.». 
 
 In I'liit V. Triiniiur, !t C. L. T. 3!tl, it was hel<l that wiiere an order macUf 
 after an enlargement was refused, and the opposing party had iv> material in 
 an>wiT to tlie motion, the order was not an i x /mrh one and a motion against 
 it >li(iiilil 1m' by way of ap|)eal. 
 
 .\\\ ijjHirli' tmhr in general slioidd he served : see Dan. I'r., otii e<l. 14;?(>: 
 aiHirilcr made on a motion, on which a party atfec^ted liy th« order was repre- 
 "iitcil, does not require to 1h' served on such partv . h'<iriliii v. Rirlili r, 2.'1 
 l^ H. I). 124. 
 
 iiiotions. 
 
 ♦IST. All motions, demurrers, special cases, appeals and •jf/^^''"' 
 other matters to be heard in Court at the weekly sittings, 
 except c.r parte applications, shall be set down for argument 
 in the otHcc of the Clerk of Records and Writs, who shall 
 post up in a convenient i)iace a list of the cases so set 
 down, not later than the day before the day for which the 
 sr.me are so set down, and shall furnish a copy of such list 
 
522 
 
 Rules 
 83S-540. 
 
 Mode 1)1 
 
 down 
 uuilious. 
 
 /^ 
 
 M 
 
 Cj5 
 
 
 
 MiaCKLLANEOUS PROCEEDINGS. 
 
 to the Registrar or otlier officer wlio is to attend the 
 sittings of tlie Court. i<cv J. A. llule (500. 
 
 TIh' ii|M'riiti"ii of tliis A'"/', snfariis it directs tlif sitting' down tn lii'Mitli 
 til.' Ohik of K. iV W., is |.n.liHiiiy ixistiMiiicil witli /■'///« 210-lMI.'. Th, 
 fnniM T iiindc r)f si'ttiii)j' (low ii is in pnu'ticf still fullowi-d. 
 
 *V\H. All motions and iipi)IicationH to the Court required 
 to bo set down for argument, and all appeals, dennirrers 
 and special cases shall l*c set down by iielivering to the 
 l)ropor officer a \)r«'c\\u' specifying the matter to l)e set down 
 and the day for argument thereof, and requiring him to set 
 the same down. When a married woman, infant, or persoe- 
 of unwmnd mind va a parly to the acti(n>, a copy of 4lie 
 oi'dt^r -giving leave t(» enter a s|)eeial ease for argument 
 shall also 1»« produced. J. A. Rule 202, 252. 
 
 OiiKiiiiil /^'/' -'(I'iu.is the siuii.' as tlic V,\\<^. I{. IS?."). ( ). 2S, r. lo. — — 
 < )ritf iiiiil /.'»// 2."C' was tli<' same as tlic Kiij?. I!. IHT:'), (). .'{4, r, ."i (KWi, 
 
 K. .'I'.a 
 
 As to flcnmiTfi'-lMioks, ami noticf to tlif oppositi' party, see liuli .Vl(t. 
 
 A sjH'ciul case must !«• ai^fiu'd licfori' a siiij,'lc .lii(lj,'c, mili'ss all parlies iiglti- 
 to its iM'inji;' lieard I m 'fore a hivisioual < 'oiirt : sei^ ss. (il, and (>"-', ot the Act iiiiil 
 R«h L'l!l. 
 
 •Scttin^J 
 down 
 
 
 If o . 
 
 o:i!l. Where a demurrer either to the whole or part of ii 
 auniiirrer. plcadmg IS (lelivfi-ed, either })arty may enter the dciuurrti 
 for argmneut immediately, and tin; party so entering 
 such demurrer siiall, on the same day, give notice thereof 
 to the other jtarty. J. A. Rule l!>r), ///.sr \)nvl. 
 
 l''oi' form of entry of demurrer for ar|,filliient, s"e Appendix l'"oiin Nn. !•!•; 
 ami of notice of entrv. No. L'S. As to service of an ord(i' for l.'avc \-< aiiiMiil. 
 see Hull aiHI. 
 
 Where there aii- cross-deninrrer-.. and the Imrden of proof is on defeiidaiil, 
 so that if he fails his ci'oss-denun'rer l>eiMimes immaterial, he .vill lie entitled tn 
 lietrin : r/../-<. V. Uniilhiiiiih. 7 «,». i'>. I). ;K 
 
 ***•' '""^ftems .5IO. Dennn-if'rH an<f speeial case> shall he set down to 
 
 demurrers he liciirii, and uotice thereof given to jjie o[)posite party, 
 
 casor.'"'''"'' ♦> clear days before the day on wliich tKev'are to be lieard; 
 
 Copy .)f (le jind a copy ot the tlemurrev book, or of the special case, 
 
 bookor shall bo left at the otlicc of the Clerk of Records and Writs, 
 
 ' for the use of the .fudge before whom the demurrer, or 
 
 spo'-ial case, is to be heard, 2 days before the day appointed 
 
 for the hearing. RuUts II. C. J., v., vi. 
 
 Hee notes to Itn/r :W(i. 
 
 The ilemnrrer hook in cases in the <^ I*, ami ('. P. Divisions will lie left with 
 the officer who sits in llie Court each Week, until such time as J{i'li'-^ •.!lO-:.'l2iiri' 
 ImiuKht into foix-*' : see note to Hi'/- .\'i7. 
 
 cai<e to Ix 
 left foi 
 Judge. 
 
 o{a^ 
 
 
APPLICATION AT CHAMnEllS, 
 
 r,-23 
 
 511. All other motioiis and appliciitions to tlio Court, J^'J^^" 
 except '''■ jxirte applications, are to be set down at latest Tii,',,. t..! 
 on tlio day before the day of argument, unless the Court f,',".',','*^ 
 otlierwiHe orders. Snc. 
 
 (ii.) Aiifilinitioti (It Chitmhcrii. 
 
 Till' iiLiittiTs wliiili iiiiiy lif (li'^|Kis)'il (if ill ( 'liaiiilicr.s iirc ton iinnicrdii- to 
 r^ipccify III ili'tiiil. Sipiiic i(f tlii'in iin- iiiiiiiii'iiitcil in tln' iiufcs ro /•'"/( TA'l. 
 'Iliiw .•ipiiliciitiiiiis which may 1m- cntiTtaiiiiHl liy tlic Master in ("hiinilnTs, mid 
 IjOL'iil .liKl^'f^ iuid Miistcrs, iiif s|)<-<-itic(l in llnlis'M, II, imd |;W. 
 
 A Ju(l|,'c has jiirisdictiiiii to iiiakf an onlcr whicli ciiii lie made in (Jliaiiilicrs, 
 wlicii sittinjf in his private riMiiii : llnrfinDiit v. Fuxlir, M(^). li. 1). Hll. 
 
 542. The following IninincKs shall be disposed of in 
 Chambers, together with such other matters as the Court 
 from time to time thinks ma\ be more conveniently dis- 
 posed of there than in Court, vi/. : — 
 
 1. For the sale of the estates of infants, under the 
 Itevisod Statutes of Ontario. 
 
 2. As to tlie p;uardianship, maintenance and advance- 
 ment of infants ; 
 
 ;}. For the admiuistration of estates upon motion, with- 
 out action ; 
 
 4. Relacin<,' to the conduct of actions or matters; 
 
 5. As to matters connected with the manaj^enient of 
 property ; 
 
 6. For the payment into ('ourt of moneys, by ))arties 
 desiring on tln.'ir own behalf to pay the same. Chy. O. 
 197. 
 
 Additional cases to which Jurisdiction in Chambers citends ; 
 
 The jurisdiction in C'hainlM-rs extends to -ither matters, in a<|ilitiun to the 
 Imsincss ciiiiiiii'iatcd in /.'/'/>• ."M'-', <.</■ ■' - 
 
 1. SuiiiriKuy a|i|ilieati<>ns to set iiside fraudulent conveyance^ Ky eseciition 
 ilclitors: A'///. 1(HI7 ; or for sale of )K|iiitalile interests of execution delitors in 
 larnl* : /.VA llMtS. Applications of this kind co-ild foimerly only he made to a 
 .huV.-: y.(-,/, V. S,ii-tli,T I'. H. IL".!; liut now the Master'in l ■hanili'T., I,o.al 
 .liulfjcs.mid Local Masters. ap|M-ar to ha\e jnrisdictMin. l''ornierly in -;uh cases 
 tlifappliciitioii \va.-- made for an order (o-i/.- Wink \. Mniillitn, ~ I' K. Ill, hut 
 iinw the proper inodeof priK-ednre is to serve a noticeof nisitioii : /^'/-•.^• .ijii, l?'.*. 
 Snhstitiiteil service on an ahscondiiiK'exei-iition dehtormay l)eallow»'d : Dnlimm 
 V. Mur.ihiil/, ".I 1', I;. 1. The dehtor inav U- or iered to pav the costs of an 
 .ippliciitioii for sale : W'litl.i v. HiJ.si,,,, 7 P. H. 'Mi. 
 
 '1. Motions hii-jiirij;ment in ordinary niort).'iiL''e actions, for sale or foreclosure, 
 or fer reilniiptidn, where infants are concerned see I'uli ~\~. The .Master 
 111 ('Iiuiiilici>, Olliciiil Keferee.- when sittiiii,' for him, and Local .ludjfcs, and 
 in the cases mentioned in ItuU VM the L<K'al Masters, have jurisdiction to 
 t'litcrtaiii such apiilicaticjns. _ 
 
 HiisincsH to 
 Ijc trims- 
 a(;lc(l in 
 elianiliers. 
 
 Aiiplica- 
 t.ioiis to set 
 aside, {rati- 
 iliilent coii- 
 vevmice- 
 li> |il(l«- 
 iiieiit 'lulit- 
 oi's. 
 
 Miili'jiis for 
 juil^^meiit : 
 ill niort- 
 Hiil^c eases 
 
624 
 
 RuleS43. 
 
 Partition. 
 
 AdininJH- 
 tmtioii. 
 
 For jiiily- 
 meiit iiiitler 
 /»'((/<■ 7:«). 
 
 To ciinvi^y 
 fret" from 
 (lower. 
 
 ToafHioiiit, 
 or fliH|uui«c' 
 witli ii|i- 
 Iiointinciit 
 of, ropri!- 
 KL'iitativuof 
 estate. 
 
 Habeas 
 corpiio. 
 
 For (loclnr- 
 atidii of 
 lunacy. 
 
 MISCELLANEOUS PROnEEDINOS. 
 
 H. M<if''>nH for judgint-iit by mlult pnrtitw, in actionH for |iartition, iimlHr 
 /{ iili'H '.iW, 'MH) : niotionH nf tliiw kind cannot Im' fiitcrt.nini'fl Wy tiic Mitdtcrin 
 Ciianily-rN : Hi Armift, Chuttcrttiu v. ('/idttrrtirn, H I'. H. 'M ; tmt arf In ttrtjiin 
 faH«'H witliin tin- juriwiiftion of tli»' L(K!al Miitttfrs, Itiit not of flu- (Nmnty 
 Court .Iiidtff.H, iinlf^H tlicy in' also IjiK'al MaHtrrH. Sec Hitlr 41, which iiictTct't 
 liniitM thi- jurisdiction of the Cotinty Court .liid^'cN, who arc not Mu.steM,ti' 
 that exercised hy the Mawter in ChaniU'rH. 
 
 4. Motions for judpnent on suniniary a|i|>liciiti(>ns for lulniini.stnitiiin. mav 
 also l»e made in certain cases, to L(K'al Masters, un<ler Itii/i !("'-' ; iiiotiniisipi 
 this kind may also Im' miule to the Master in ('haniliers ; J'u/t !Mi.") ; and Coiiiity 
 Court .Fud(,'es who are not Local Masters, hut if o|i)iosed, tlieir jurisdiction (< 
 exclude<l under Hii/i''.M\', hut o|i]iosed applicutions for administratinii tin' 
 not excluded from the jurisdiction of the Local Masters ; see Jtiilr !I72. .\* In 
 priK-edure on motioiis for administration : see /{n/is JMio, it kii/. an<l notes. 
 
 r>. Motions for leave to enter jud^m<-nt after appearance to a siK-ciiilly 
 indorsed writ, \iw\fr Kill i ~',VX 
 
 <>. Applications to enal lie tlie owner of land, to convey fi'ee from the ildwvr 
 of his wife, under H. S. (). c. i;«, ss. !l, 1(» aii<l 11 ; R' hUiulvs. 7 I'. |!. lMI : /,'■ 
 ('iiiniiliill. 25 (Jr. 1S7, 4S(» ; hut it seems proliabh' that applications of this kiinl 
 can oidy Im- entertained liy a .liidge. 
 
 7. .Vpplications to ap|Hiint, or to disiiense witli the a|i|M)intment of, a |«'Iniii 
 to represent the estate of a (h'ceiised |H-rson under Unli'Mi). Tiie .Master in 
 Chamin-rs, Official Referee sitting,' for him, and County C(»urt .1 ^dp's ; ami 
 LiH-al Ma.sters when ai'tin^ under Ruli' IIW, have jurisdiction to entertain .^^lcll 
 applications : I'nl/rri- v, Mini i/:ir, HI'. H. 42. 
 
 M. .Vpplications for writs of linhfns rur/iii.tmny Ixuniuh' to a .Fudjre in f'iiiun- 
 In-rs; H. S. (). c. 70; /!•■ /'n/mi, 4 (Jr. 147. As to whether a.Tiidv'e can in f'lialii- 
 onh'r for a writ of hnhnis mr/ms, or (|uasii the writ it.xlf 
 it issued im|irovidently, see AV /i^.v.s, 3 1'. H. 'M. Tln' 
 Local .lu<lt;es, and Local Masters, cannot entertain appli- 
 
 y^'/.■.^ .*«i, 41, i:w. 
 
 vpplications to declare a person a lunatic un<ler I{, S. O, c. r>4, s. S; /.'• 
 
 iwrs rescind liis own 
 on the ^'round tiiat 
 Mast<'r in ChamlMTs, 
 cations of tiiis kind : 
 
 Wlien Mas- 
 ter in 
 Clinniliers 
 liHs no 
 jurisdic- 
 tion, mat- 
 tei's may Ix! 
 brounlit 
 licforc a 
 Ju<)(te. 
 
 Matters 
 
 not to l)e 
 
 nnueceB- 
 
 sarily 
 
 brouKlit 
 
 before a 
 
 JudKc. 
 
 /'"/■//. VChy, Ch. I'.t2 ; 7^ Flniniiinu, \'.\ V. L. .1. \. S. 1!»7 ; /.'/ K'l'n, <'. \\ K. 
 220, or for a conunission(/»/»/((///(ii ,• Ri' Shiurl, 4 (Jr. 44. The supiMised lun.itii' 
 is entitled to notice of tiie ajipliciition ; Rr Miller, 1 ('hy. V.\\. 21">, miless tin- 
 Court on pro|HT evidence of its heinjr dantrerous, or useless, to serve liilii. 
 dis|H'nses with ser\i;'e ; Ri .\'rii;iiiiii, 2 Ciiy. (^11. .SilO ; Ri' Mfiii, /li., 42'.>. .Vpjili- 
 <;at..)nsof this kind can only he made liefore a .ludp- ; see Ri'li 'MK {'M; Imt 
 wheiT an onler has been made declaring' the liniacy, the .Master in ('liaiiil»;r- 
 has juris<liction toenti'rtaiu applications resiwctin^ thepro|M'rty of the lunatic. 
 under l{. .S. (). c, ."il, s. 11, <■/ vc//. 
 
 Applications in Chambers, to whom to be made : 
 
 .Vp|ilicati<ins projier to !«' made in Chandlers. Iiut which are 
 the jurisdiction of the .Master in ( 'liamliers, ( )tficial {{eferee, 
 and County Court .lud^,'es. may lie made In fore a ^\u\'^^• of the 
 ChamiM'rs. In tiie ( >ueen's Hencli, and Common I'leas Divisioi 
 
 exclllded frimi 
 Local Master-, 
 liilii ''"iirt ill 
 a . III. I).'e sit- 
 in ChanilM-rs on Tuesday and Fiiday, and in the ( Miancery l)ivision on .Monday, 
 in each week, except in vacation, wiien s|H'ciaI arrangements are made. 
 
 -Vpplications which <'an Ih- maile in ( 'handlers shoiihl lie made liiere, ami mil 
 in Court: M"/lh// v. Rmlillr, 4 (Jr. 44; Ann //'., (ii : or the co.sts nmv !»• 
 refused : M urmii v. < 'oiirliii fi, 1(1 (Jr. 02; or allowe<l only as of a uiotn'ii iii 
 Chandlers: h'ini/ v. Coinnir, 10 (Jr. 'M\4. 
 
 The Ma.ster in T'liainliers, County Court d iidjfes, or Ijoeal Masdrs. may 
 refer matters proper for the decision of a .lud^fe of the lli^'li Court tn i 
 ■ lud^'eof the Hit,di Court: see Rttlm ,H2 and 42. 
 
 Matters coiniiiffliefore any otticer of the Coiu-i ha\ inv jiirisdii'tiou in Cliaiii- 
 Im'I-s, should not Ik' referred to a .ludfje liecau.se the parties desire it. imt mily 
 when I he otticer call certify that it is a ]iio|M'r case to lie In a id lietoie a .lu(lK<"- 
 and nattirs iiiiproiierly referred to a dudge will not lie entertained : Jlmjln')''- 
 R<i\ !l 1*. K. Wi. 
 
tfi'tain apph- 
 
 525 
 
 RuleS43. 
 Siilo of iii- 
 faiitH" 
 
 lIMtlltOH. 
 
 (itinrrlian- 
 Hlii[i of iu- 
 
 flllltS. 
 
 APPLICATION AT OHAMIUCRH. 
 
 Sale Of Infants' Estateb AHtotlic nxMlt'itf prdct-cdiiig for hiiIc of infants' 
 
 Ouardianship, and Halnl^enance, etc., of Infants. .An ti> iiio<1<> of imn'ct'tl- 
 iriL' fur iiii|Miintm<'iit of ^ruiinliiiiis, sec A(//(\ "HMi, !I!I7 ; opiMiNt-d a|i|ilicjitioii)' 
 roiKKitiiiK till' j,'uiir(liiuiMliii)of the pcrsctii, or projKTty, of iiifaiitH, iiri- cxcliulcd 
 fii'in til'' JMrixdii'tioii of tin' MjiNtcr in (JhainlKTH, MCf JO'/'' '.M) (!t), and alwi 
 111 III! that of tilt' liooal •liid^cN : Itiilr A\ ; and Loc-al Mastfrx: linh l.'W. 'I'liti 
 autliiirity i>f tlif \\\v^\ ('ourt in not I'xrludt'd liy l{. S. <). v.. VXi, hk. 10-12: y^' 
 sii'iuiiii'il, 1 ("liy. Cli. li"). 
 
 .Vliplicatioiis r('S|«'ctinjf tlu' ciiHtofly of infantH undfr K. S. (). c. l.'tT, h. 1, may 
 U- iiiaili' to a .IikIk'' i" ('lianilM-rs : ««■<• Id' Jimin, 'A C\\\. Cli. UTT ; /^■ KiHli, 
 : I'. H. i:i« ; H<- Hirs, 1,5 (Jr. r>«(l ; /{< Munh,,!,, \\ |'. |{. I'l'J ; ](, Smith, H I'. U. 
 28 ; /''■ >''■"". /''. •''>^' ; li'' l''''i'!i>"<iiii. III. TiiVi ; lint not to tin- MaHtcr in ClianilHTH; 
 .(f Uiilf ;«», (t>) ; nor to the Local .liidg'oM : Itutv 41 ; nor to tin- LiK'al Mjixtrrw : 
 
 /••.'/-■ i:iK. 
 
 Injunctions, and Receivers. .Applications for injunctions and reccivfrs, arc 
 iisMitlly uiiulc in ('ourt, liut wiicrt' a rt'ccivfr has Im-cu appointed and dies, 
 till' application for tiic ap|H>intni<^nt <if another in liis jtlaoc may )>•■ made in 
 Cliaiiilx'i'-' : ''''"/'' V. liiii'i, !) Hare App. 1 ; liut the ap|Miintniciit was made 
 ill tilt' first instance in Chamliers, I ly consent in lUiii'klii'riiiiiih v. Riin'iihiU, l(i 
 .liir. IHM."), and in a proceedinnf oriifinating in Ohamlwrs, 22 Sol. .lour. 1)14. 
 
 Appeals frowi the Master in CMiamU'rs, Local Masters, County f'ourt .Indges, AppealH. 
 ordttii'ial lieferees, wiiere exercisinjf the jurisdiction of the Master in Cham- 
 Uts : Hull' S4(i ; an<l also ai)peals from the taxation of costs: yf ///c S,5l, U'.ay 
 niiw lie liroii^'lit Ix-fore a •hxl^ein ChamlMtrs. 
 
 Motions to Commit. .Motions to connnit for contempt, liy rea-son of dis- 
 (pUilii'UL'c of an order in ('liamliers, ttr u /iiytri/M order, may lie niiule in Chum- 
 l»'iN, but where the disoliedience is of a (iourt order the motion should he made 
 in Court: Vi'irul v. Ilanli/, !( C. L. '!'. lUf), following' liliin v. Cnion Fiir Inn. 
 '".,3C. L. T. (Mil. 
 
 Injnnc- 
 tions, anil 
 rocoiverH. 
 
 120 in thet'<»i"of 
 
 order. 
 
 5451. An order shall be in the Form No 
 Appendix hereto, with such variations as circumstances 
 require. It sliall he {a) marked with the name of the Judge 
 or officer by whom it is made. J. A. lUile 418. 
 
 ("I Tile KuK. I{. .'V.l of .April ISHd, has hen- the additiomil words "sealed 
 •imi." The two Hull's are otherwise the same. 
 
 OrltTK in Ciiamhers should lie daterl on the day on wliicli they are finally 
 iiiailc, 1111(1 sliDuld not be ante-dated, nor contain recitals of atliilavits sworn 
 afrcr the (late uf the order: Axliliii v. Ttifiliir, 10 f'li. 1). 7'W ; nor upon an 
 iqiplication liy a defendant against the plaintiff, should the order lie drawn up 
 ^t.itiii),' that a co-defendant appeared who, in fact did appear, hut who had 
 II 'I Im-cu served with the noti(!e or summons ; lU'i'liiii v. Kriliin, 2S \V. K. 'I'M. 
 
 W litre an order is expressed to last \intil a particular day "or until further 
 "I'liT, tile wi.rils " further tmler "" mean an order niaile on an t'ailier tlav t lian 
 tii'day speciticti : li„lii„i v. L>iii/ii,iSi/ini,/Hi,ii,i/,7Vh. i>. TfiO. 
 
 \\ liiTf an order is niaile hy tionsent witht>ut mistake, such consent cannot lit 
 «itli(lrawii, even lieforc the order is pa,H.seti and entered : llnrri'i/ v. < 'ni//ili'ii, 
 J-'liHi. I). '_'17, owr-ruliiit,' A'lv/c/w v. lliu'ii,'H\ \\ . \{. \:\1 : see nUi, J/n/t v. .Ir.s.si; 
 •M'";l*' 'i'T : h'/.iiis V. H'illiiiiii.\ infra ; Hi Wml l)iii,ii Cniil Mim.i, .'W Ch. I). 
 ■'1 ; •!>< Ij.T. X. S. (il. Ihit the (!ourt has jtiiisdictiou to discharge an order 
 !ii,iiii- (ill an interlocutory application liy consent where it is prtived to have 
 '•'^iiiuade under a mistake, tliiiiit;li that mistake was on one side only : .Miilliii.i 
 .//(■»•«//, 1 1 (;||. I). 7(i;{ ; [111,1 fveii a juilKiiieiit pronouiiccil hy ((iiiseiit has 
 'ftiij-'ivcn (111 the fit it 1 1 of an instrument lit iii^ genuine, w liidi afterwards turned 
 'lit to Ih. a forgery : I'rii .■<: ,„ii„. v. Thniiin^, ",» I', j). 'JIO ; .M L. T. N. .S. S4;t ; 
 Waconnent order will nut he .set asith' liecanse one of the jiarties tinils it to 
 
filllfPllwr 
 
 :y 1 
 
 526 
 
 Rules 
 M4-047. 
 
 MISC'KLIiANEOUH I'ROCKKDINOK. 
 
 : Ciitini iiiiiii V. LdiiiIiiii /''in Iiisiiriiiin- I'n 
 l{. II K(|. S.'.; Miilliiiiil mill 11. W. l;,i.i„. 
 
 i'U-rk t.. 
 
 ill .luil^c's 
 Clmiiilicr'-. 
 
 !»■ I.'ss licntficiiii tliiiii lie (•\|><<'lc(l 
 I--' I'. If. M-J; /•-,«•<// V. Smith. \,. 
 \. Jiilnixiiii, (1 II, I,. C. ilt p. .Sll. 
 
 A CKiiM'iit tiiii |M'r|ii'tii:il iiijiiiictiiiii \min nut itllowi'il tii lie witliilriiwn mcrt'ly 
 In'I'hii.hi' till' (l<'ft'ii(iiiiit iiftrrwiirds (lixciiM'rt'tl tliiit li>' liiul a dt-ft'iici' : /■J.\ii» \. 
 \\i//iin,i^, :t2 I,. 'I'. N. .S. ;«l : ThI L. .1. (Jliy. ',M>. 
 
 NVJHTf till' .liKJH-f at till' trial nili'd advcrsi-ly tu tlic dcfi'iidant, Imt in cuiii- 
 |iliaii<'<' w itii till' i'('(|ni'st of iiis (miiiiim'I iiiixlitii'd jiis niliiiK; it was liililtlut 
 I ill' jiiilKiiii'iit wiiM nut li,v cdiiNi'iit, and dcfi'iidant wan nut |i:'i'rliic|i'i| fmin 
 Illuvill^^ aKainst it: Sirnnf/i v. Sinoiiii, Hi Out. '.)'_'. 
 
 A di'I'i'ndant ^'avi' an iindi'i'takin^ at tiii' lii'arin^'' tu niaki> ciTtain |iu.viiii'iitit 
 lu till' |ilaintitf; tlif urdiT wiim drawn ii|> t\vo or tliri'i' wi'I'Ixh latrr, iiiiil tlic 
 iindi'i'takiiiK \\as I'liiliudird in it ; tlii' iindirtakin^ uaN ^ivi'n nnilrr aiiiisa|>|in'' 
 liiiisiun lit' fad: Imt a|i|>lii'atiuii tu discliar^'i' tlii' di'fcndiint fruiii tin- iiiiiIit- 
 takiii^' was iffii-rd. uii tln' jfi'uiind tliat tlii' fai-ts wrrr asi'i rtaiiialilc liy tlw 
 di'fi'iidaiit, and tiiat tin' apiilicatiun was nndi'i' tlii'sr ('ircniiistancis tim lati': 
 .\ttiiniiiiiii III ml \. '/"//'//»(■, 7 r'li. I ). IWH, 
 
 *i\Am All ordt'iK made hy a Judge of the irif^'li Court 
 in ClininbciH in Toronto hIuiH he signed hy the (Mork in 
 Chaniht-rH, whose duty it nhall be to see that hucIi orders 
 are in due;forni before Higniug the same,-- J. A. Jlulo r)H2. 
 
 ' ' ' ' -jt 
 
 y 
 
 Appt'iils 
 
 /i/'/ 
 
 H'tH* Kv('ry apix^al to ho hoard in Cluiniher>sli{ill lie set 
 down for arj^iunent with the Clerk Wl(ec<)r(V)i4Uwl^^\'rit)^at 
 latest on the day before the day oi' argument, and a list of 
 cases to l)e heard on any day shall h(> prepared and cxijostd 
 as soon as the time expires for setting down cases for that 
 day. AV/r. 
 
 'I'liis l!iil( is runsidiTi'd tu apply at pri'scnt in tlii' C'lij-. Div., wlifvi' tin' 
 prai'tiri' has iH'i'n in accuiilanci' with it, lint its gent-ral u|H'ratii>n is |M)st[ioiiiii 
 with /^(/'vi 210-212. ^ t / ' , < . ^y 
 
 •TIO. All orders for administration, or partition, made 
 'i'.'i'"uiiterL'(i in Chambers shall he drawn u]) as judgments and entered 
 in full. -^ j-j^^ manner as other judgments are required to be 
 entered. All orders declaring persons lunatics, or for the 
 sale of infants' estates, or for payment of money into, or 
 out of, Court, or for continuing proceedings upon the death 
 or transmission of interest of any party to an action, and 
 all final orders of sale or foreclosure, and all vesting orders, 
 shall be entered in full in a book to be provided for the 
 purpose, before the same shall be issued or acted on. J. A. 
 Rule 583. 
 
 tUirtain 
 iii'flcrK to 
 
 Where ac 
 count 
 
 ^^'^' Where an account is taken in Chambers, special 
 taken in directions ma}' be given with respect to the mode in which 
 eis ^j^^ account is to be taken and vouched ; and the proceed- 
 ings shall be as nearly as may be the same as upon ii refer* 
 
INQUIUIE8 AND ACCOUNTfl. 
 
 527 
 
 ence to a trustor inulor KuIch (5}J to GO and Ki to 48. Sec Rui" 
 Chy. 0. -iOO. 
 
 A<!C<)tiiitH HIT iHiw rarely tiikfii in Clmiiilii'i'x, cxci'iit in ixfiiiicv iniittfi'x ; a 
 rcftri'iK!!' t<i the MaKter l)cinK iiMniillv diifctt-fl. 
 
 .TI.H. Tlie Court may adjourn for consideration in j^.'^yV^",,,,. 
 
 Clianilicrs any nuittcr which, in the opinion of tho ^ourt, i'^'^''fj"j',[^j|^j^ 
 may 1)C dispo.si'd of niorcs conveniently in CluinibcrH ; and !■> cimni- 
 any matter jjcndinf^ in CiianiherH may be adjourned to open w,ri-"rU. 
 Court ; and such matter may he so adjotn-ned at tlie request 
 of either party. 8nl)ject to hucIi ordca* as to costs or other- 
 wise as the Court thinks rij^ht to iujiiose. Chy. (). 203. 
 
 t'S'lW. A .ludj^'e sitting; in Chambers may (ixercise the 
 same [)o\ver and jurisdiction, in re8))ect of tlio business 
 brought before liim, as is exercised by tlu; Court; all 
 orders nmde by a Jud^,'{! in (!lianibers are to have the force 
 niid etfcu't of onlers of the ('ourt ; and all or any of the 
 powers, authorities, iiiid jurisdictions, }^iven to the ^faster 
 by uiiy A<'t or Acts now in force, or by any l>ule of the 
 Court. ui!iv be exercised i>v a .Jud^M; in Chambers. Chv. (). 
 210. 
 
 Kor till- ^fiiii-iiil |i(HV4'rs cuntrrrcil nn MaMtcrs liy these /'c/cf, see /'n/r.t 
 4li-(W. 
 
 As rejfarils tlit iidiiftiiijf nf sales, settliiitr ODiiveyanees anil investigating 
 
 titles, Hif ttiih. ■< H'.tW:,. 
 
 As lejraiils the a|i|><iintnient i>f leeeivers and e<iHiniittees (if lunatinM, and 
 Ijftssiiiif thi iiiiceuunts, see /i'(//r .f 1 1(1 12;{ ; and as re^'ards aittioiis for furechisure, 
 sail' and riili-iiiptiiin, see hitlr^ 124-1H7. 
 
 11. InQUIUIKS AND AoCOUNTS. 
 
 530. The Court will not refer to arbitration. Ncir. 
 
 I'riiir ti) tliis /^(/i' there wei'e three nmdes of rfferrinj; matters not adjudi- 
 latnl wjxin at the trial: (1) to a Master, under the former Chy. I'r.; {'i) to 
 ill! arl)itrator or r<-feree, under scc.-s. IH't, 1itr> and 111" of the ('. L. P. Act 
 (K. S. (). 1,S77 ,-. :^\), r,.-,naeted in the I{. .S. < ). 1X87, (;. 5^ ,ss. 1, 7 and !) ; (.3) to 
 an Olticial iieteree under the .liid. Aet. (see hccs. Ktl and M)'l xiiitrii pp. !l."i- 
 101. 
 
 The iilijfct of this Hull, in eonjiniPtion with Hi>li» ;{5, 'M\, S4K-S.5(), wa.s to 
 >iiii|)lify uiiil make more uniform the practice. .\ccordinKly this /fi*/r alxilishes 
 (sif :)1 \ .^ c. .(_ n_ 4^ ( )|,t, ) the niiKles of referring; (piestions othorwiHe than to a 
 Ma-steriirOflicMal F{eferee ; I'nh' '.\\\ makes uniform tlie practice on references to 
 a Master or I{efeiee of such matters as may he referred to a Master, or a 
 Ri'fen^', Milder sec. 101 of the ,\(;t ; Rnlf 'M') provides the practice on referencet* 
 to a Kefciee under sec. 102 of tlie Act; and iJd/td K4S-50 jirovidc a unifoiTO mode 
 of a|ii)eal f|-,,ui the .Masters and Referees. 
 
 I'le K. S. (). 1HS7, c. T\'.\ res|>ecting arliitrations can have now little, if any, 
 iilKTatiiiii except in regard to voluntary references out of Court. 
 See also notes to «ec. 104, miprn p. 101. 
 
 .Indue in 
 CliaiiilicrK 
 limy e.xcr- 
 ciHc powers 
 of Court, 
 mill also 
 powers of 
 the .Mastor, 
 
 .Vrbitra- 
 tion. 
 
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 WEBSTER, N.Y. MS80 
 
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 7.A 
 
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 528 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 Rules 
 651, 662. 
 
 Reference 
 a\; any 
 
 I'roviHious 
 of refer- 
 ence to 
 oflicial or 
 other re- 
 feree. 
 
 3*>l* The Court or a Judge may, at any stage of the 
 
 {/'•oceedings in a cause or matter, direct any necessary 
 inquiries or accounts to be made or taken, notwithstanding 
 that it may appear that there is some special or further 
 reh'ef sought for, or some special issue to be tried, as to 
 which it may be proper that the cause or matter should 
 p c ed in the ordinary manner. J. A. Eule 244. ^ 
 
 Lkntieal with tlie Eng. R. IHTi"), O. 33 (1883, R. 381). 
 
 V reference uiulcr this /iii/c may be to a Master, or other i)r()i)er officer, or to 
 a)i ' I'ii" .'■ Uefrree, under sec. 101 of the Act. See note.s to tluit section. 
 
 \ , ' . ,1 y Wit ' directed in W'ud Landiiu haivij >Siic. v. Ahltutt, 2!t \\. R. r)84; 
 ''• J. ■ ■. 37<), as to a question of fact, leaving questions of hiw for siibse- 
 
 (]iieii./ •. ,. iinination; and in TuniiKiud v. \Vihiin,\ Ch. D. 8;"), for taking of 
 accoiu.ts .1' :\ partnership whicii defendant had admitted, by answer filed befoiv 
 tile Judicature Act. 
 
 An order may .sometimes be made under the combined authority of this I'i'h 
 and Mule 7o7. See notes to that Ruin and Turijuaiu/ v. Wil»i)i, xujmi ; ivt- 
 •also y.V Jlarkcr's i-Jx/ufe, 10 Ch. D. l«5-0; Jtol/e v. Maclairn, 3 Cii. D. lOti: 
 Jiumseij V. Iteade, 1 Ch. D. 043. 
 
 An order under this Rule is not ])roper, where the issue in the action Ijcconics 
 thus liable to be tried on the reference : (iantluim v. ^kij^iKi; 2!) Ch. 1). flWi; 
 see also Murdiniald v. /'iper, 10 T. R. 58(). 
 
 By a judgment to set aside a contract and cancel a conveyance, an acccount 
 was ordered to bi- taken, of moneys e.vpended by the i)laintitfs and received by 
 them in respect of the i)urchased property, and a lien was given them for pur- 
 chase money and any balance on the taknig of the accounts. The (lefendant^ 
 were in liquidation, and had no as.sets excejjt tiie projjerty. Taking of accounts 
 was stayed as a useless e.\|ien8e, because the amounts due to the plaintiffs must 
 in any case exceed the value of the projierty, with lil)erty to the defendants tu 
 jiroceed with the accounts at any time on giving .security to abide by tlw 
 Judge's order as to costs : KkIhuiiji', etc. v. ..I.v.v. vf' Land FiiMiiiii:rs, 34 
 Ch. D. 195. 
 
 »1»53. Where a reference is made to any Oflicial or other 
 Referee under the Judicature Act, the Referee shall have all 
 the powers as to certifying and amending of a Judge of the 
 High Court of Justice, and shall make his report of and 
 concerning the matters ordered to be tried j)ursuant to the 
 statute ; 
 
 (rt) The Referee may, if he thinks fit, examine the 
 parties to the action, and their respective witnesses, upon 
 oath or affirmation, and the parties shall produce before 
 the referee all book":!, deeds, papers and writings in their or 
 either of their custody or power relating to the matters 
 ordered to be tried ; 
 
 {h) Neither the plaintiff nor the defendant shall bring or 
 prosecute any action against the Referee, or against each 
 other, of or concerning the matters ordered to be tried, and 
 if either party by affected delay or otherwise wilfully pre- 
 vents the Referee from making his report, he or they shall 
 
SPECIAL CASES. 
 
 629 
 
 p-'^y 
 
 such costs to the other as the H'gb Court, or anyJ^J*" 
 
 P53, 564, 
 
 Judge thereof, may think reasonable and just; 
 
 ((•) In the event of the lieleree decHning to act, or dying 
 before he has made his report, the parties may, or if they 
 cannot agree, one of the Judges of the High Court may, 
 upon ai)pUc'atiou by either party, appoint a new Eeferee. 
 J. A. Kale 245. 
 
 Tliis Itiilf is taken from Form II. 32 in tin- Scliedule ai)i)ftn(l('d to Eng. R. 
 .Sup. C, A|)ril, 1880. Tliiit was the form of an onlor for trial under the section 
 corrt'si)')n(!ing to section 102 of tile Act. Tlie expressicm "the matters ordered 
 to he ti'ied '' in the first clause, and clause ("), also indicates tiiat this Jttileonly 
 ii))plie.-i to references mider section 102 " for trial" and not to references under 
 scftion 101 " for inquiry and report." 
 
 Fdiiu 13!) in the A])p('ndix gives th(^ form of an order under section 101, of 
 tile .\ct, and it is similar to the Knglish form. 
 
 Form 140 is the form of order under section 102 of the Act. The English 
 form contains the directions, etc., contained in this liiilc. The jtresent Eide 
 and Itiilt' ^M,\ render unnecessary and improper the specification of these 
 directions in orders in Ontario. 
 
 Clause (<•) (Miahles a .Judge of the High Court to appoint a new Referee. The 
 ilister in Chambers has therefore no jurisdicticm in the matter. See Jtiih's 21 
 and 30. 
 
 Wliere an action has Ikh^i referred under seeticm 102, qiuvrc whether the 
 Rcfeiw under this Rule lias i)()wer to issue an order or direction for jiroduction 
 lilce a Master ; or whether an order on pnnr.ipf may .still he obtained : see 
 llild-rhrnnii) V. M<1) iiinld, 8 P. R. ;W.). The Court may malce an order : see 
 /.'-■ Li'i:/li, R'lrrlljfe v. Lrij/i, 1 Cli. D. (JOl ; IhiuvUlier v. Mi)n-s, 17 Ch. D. 
 34'J; (.'iicJiriiHi' v. Aftirri.inii, 10 F. Jl. (JOIi. If the order of reference is made at 
 a Sittings wliere the case has hi>en brought down for trial, ]jroilaction will 
 or.linarily have bedii i)reviously obtained under Ritlei)OS. 
 
 »>5S. An order umler the next preceding Rule shall be orders to 
 read as if it contained the provisions set forth in the said coutluning 
 Hale, and shall not set forth the said provisions, but may yfj^ona*'^''^ 
 contain any variation therefrom, and any other directions /i 
 
 which the Court or Judge sees fit to make 
 Eule217. '^'^i^/^^^^i- i^'<j,j^'^< 
 
 J. A. *^x f^<et /3//^ 
 
 
 See notes to RjCles 552. »-/< tV^f^-i-t/'ti'-'-X-'^'^^ *■ /^ ^ -j^i- 
 
 
 
 
 12. Special Cases. 
 
 may con- 
 ur in gtat- 
 
 554. The parties may after the writ of summons has Parties 
 been issued in any action, or in any pending matter not cur*^iu°8 
 comineneed by writ, concur in stating the questions of law oase?***'*^ 
 arising in the action or matter in the form of a special case 
 for the opinion of the Court ; 
 
 Compare ICng. R. 1875, <). 34, r. 1 ; that of 1883, R. 889, was, like this Rule, 
 made toaiiply not merely in an action. 
 
 ('() The parties to a special case may, if they think fit, 
 enter into an agreement in writing, that on the judgment 
 
 .1 i Q < 
 

 580 
 
 MISOKI.LANEOUS riSOCEEDINGS, 
 
 Rule 864, of the Court being given in the affirmative or negative of 
 the question or questions of hiw raised by the special case, 
 a suiu of money, tixed by the parties, or to be ascertained 
 by the Court or in such manner as the Court may dii-ect, 
 shall be jjaid by one of the parties to the other of them, 
 either with or without csts of the action '^r matter; and 
 the judgment of the Court may be enlere( lor the sum so 
 agreed or ascertained, with or without costs, as the case 
 may be, and execution may issue upon such judgment 
 fortliwith, unless otherwise agreed, or unless stayed on 
 appeal ; 
 Compare Eng. R. 9 of April, 1880. 
 
 {(') Upon the argument of such case the Court and the 
 parties shall be at liberty to reftr to the whole contents of the 
 docunifuts referred to, and the ( ourt shall be at liberty to 
 draw from the facts and documents stated in any such 
 special case any inference, whether of fMct or law, which 
 might have been drawn therefrom if proved at a trial. 
 J. A. Kule 248. 
 
 Compare Eiig. K. 1875, O. 34, r. 1 (188,3, R. 380). 
 
 The several i)art.s of tliis Ride correspond with the English Rules referred to, 
 except in omitting a provision as to stamp duty. 
 
 The power of stating a special case in tlio Common Law Courts of Ontario 
 depended upon R. S. O. 1877. c. .W, ss. 185, 18() ; c. 51, s. 24, and tiie 
 previous statutory enactments to the same effect. Tlie like power in CliaiiciTy 
 was given by R. iS. O. 1877, c. 40, s. 85. That section was taken from L'8 Vict. 
 0. 17, s. 1 (Canada), which had the effect of introducing the Imperial Act, 
 13 & 14 Vict. c. 35, on the subject. 
 
 As to stating special cases where infants or persons not sui juris are interested,, 
 see supra, p. 2R, and Eidn 557. 
 
 The Rules authorize the stating of a special case before statement of claim : 
 Metropolitan Board of Works v. New River Co., 1 (l B. D. 727 ; 2 (J. B. D. (i7. 
 
 Where pleadings are delivered and are admitted to state the facts, the case 
 may come on as a motion for judgment under Rules 748 and 755 ; see Till v. 
 Tiit, 15 Ont. 133. 
 
 The provision in the. last part of the Rule, enabling the Court to refer to 
 documents, was new as resi)ects the Connnon Law Courts. Those Courts were 
 confined within the four corners of the case, so that it was often necessary to 
 set 'Ut documents, a i)art only of which was likely to ))rove material. The 
 j)ower to draw inferences of fact also did not exist in Connnon Law Courts iw 
 of right ; though it was commonly sjiecially reserved to the Coin-t in well drawn 
 cases. In cases stated in the Court of Chancery, tlie Court had Iwth these 
 powers under ss. 8, and 14, of 13 & 14 Vict. c. 35 (Imp.) ; 28 Vict. c. 17, s. 1 ; 
 R. S. O. 1877, c. 40, 8. 85. 
 
 A special case must be upon a real state of facts, not a hy])othetical one :. 
 Bepubtie of Bolivia v. Bolivian Naviodtion Co., 24 \V. R. 301 ; liri.iht v. Tinuhdl, 
 4 Ch. D. 180 ; 7'ry,sv v. Pryse, L. R. 15 En. 80 ; Umith v. (iibmn., 25 L. T. N. «• 
 559 ; 20 W. R. 88 ; Sava<ie v. Ti/ers, 20 W. R. 817 ; Bardirell v. Slie.^eld Water 
 Works Co., L. R. 14 Eq. 517; and where not an original ease (e.;/. Briiiht \. 
 Tyndall, supra) but stated in an action, only such questions of law can i)r(ip(Tly 
 be raised as must necessarily arise in the action : Republic of Bolivia v. 
 
 Ch. 
 
SPECIAL CASES. 
 
 531 
 
 National Bolivian Nnvifjntiop Co., 24 \V. R. 301. The Court should not be Rul>, 684. 
 attkcd, uiwm a case stated without pleading's, to answer questions whicii could 
 not be raised ujxni proper pleadings : Tdiilor \. Campbell, Pontmastcr-Gcneral, 
 33 U. C. q. B. 2()4. 
 
 The Court is not bound to answer every question the jiarties may think fit to 
 put: Viscount Barriwitoii v. Lidthll, 2 JJeCi. M. & (t. 480, oOd ; Seton 34. It 
 will not in genei-al declare future rights : Saraiu v. l^i/rra, 20 W. K. 817 ; Ijadi/ 
 Laiviiliilc V. Brimin, 8 De(4. M. & (}. 42(1, 427, 428 ; Karl o/T/ironc v. mUerford, 
 (i Jur. N. S. 007 ; (Jrcrnwood v. Sutherland, 10 Ha. A])p. 12 ; (t'arlick v. Larron, 
 III. 15; but lias occasionally done so : BiKjav, Midland, L. R. 4 Eq. 310; Ihjavi 
 V. BiHim, lit Beav. 58; nor will the Court make any order where the facts stated 
 do liot enable it to determine the rights of tiie parties : Bidki'lci/ v. Hujic, 8 
 l)e(i. M. & O. 30. 
 
 A very sjiecial (jrder having by consent been made for the purpose of obtain- 
 ing the judgment of the Court under Kng. R. 1875, (). 40, r. 8 (corresponding 
 with Ride 754) the Master of the Rolls discharged the (jrder, as the effect of 
 it would be to make the Judge an arbitrator between the parties, who would 
 thus, contrary to tlieir intention, be dejn-ived of the right t)f ai)peal : 
 Ri'pithUf of Bolivia v. National Bolivian Nari'iatimi Co.. \V. N. 1870, 77; 24 
 W. K. 301. 
 
 Exce])t by consent a special case, after having been finally agreed to, cannot 
 be reopened : Hamilton v. Stahi/, 28 Sol. Join\ 418. Affidavits cauiKjt be 
 received to alter or modify a sjiecial case stated by ccmsent. The only relief 
 open to the party complaining that a case has been misstated, is to ai)|)ly to 
 amend or vacate it, aiui quaere whether it could be amended after judgment : 
 Cousincau v. City of London F. Inn. Co. 15 Ont. 32!t. 
 
 A spe.'al case was amended by leave, at the hearing, by adding a party in 
 existence before the ciuse was filed, but accidentally omitted ; and the ca.se as 
 amended was ordered to be set do^^•n against the added defendant: JUtrnaliij v. 
 Taurll, L. R. 11 Eq. 303. Where new ])arties come into existence after a special 
 case is set down thy should be made parties to the proceeding: Palmer v. 
 ]<lomr, 18 W. R. 887; Atti/ v. Ktowih, L R. 13 Ec). 402 ; Saraac v. Sncll, L. R. 
 11 Eq. 204 See Peter v. Peter, W. N. 1884, 45, 00 ; 32 W. R. 400, and 515, in 
 note to /^i.. 022. 
 
 Amendment after judgment on a special case was refused : Re Taylor, Tomlirt 
 V. Undirhai/, 22 Ch. D. 405. But where a special case is stated in an action 
 and a decision given upon it, under a mistake of fact, the Court is not bound 
 by the decision, unless it has been adopted by subsequent orders, but may 
 disregard it and direct the action to go on to trial : lb. 
 
 The following are examples of special cases under The .hidicature Act : — 
 Lysaijht v. Edwards, 2 Ch. D. 409, a question arising in an action for specific 
 jjerformanco : Gen. Finance Co. v. Liberator, B. S. 10 Ch. D. 15, a question of 
 title in an action for recovery of land ; Wilnon v. Ditndas, W. N. 1875, 232, a 
 question as to the liability of a garnishee; and Marnhall v. Aiiileivood, W, N. 
 1881, 3, a question as to the construction r.f the jwwer of apfwintment in a will : 
 Ashbury v. Watmn, 51 L. T. N. S. 7<)0, a question under the Companies Act : 
 Rosher v. Rosher, 51 L. T. N. y. 785, a ques.'-.ion as to the validity of a condition 
 annexed to a devise in fee. 
 
 Upon the argument of a special case stated in replevin, the plaintiff has the 
 right to begin : Vigar v. Dudvian, 24 L. T. N. S. 734. 
 
 Where the answers to the sijecial case disjiose of the action, the proper course' 
 ia, to take the decision as a judgment making declarations to the same effect ; and 
 the answers ought to be followed by the words : " and the Court doth declare 
 accordingly." In such a case the Registrar was directed to draw up the judg- 
 ment as answering the s|)ecial case, on motion for judgment : Harrison v. 
 Cornwall Minerals Ry. Co., 10 Ch. D. 00. 
 
 An appeal lies frcjji the judgment on a special case : Re TayUir's estate, 22 
 Ch. D. 495 ; see Alkim v. Dickinson, 9 Q. B. D. G32. 
 
592 
 
 Rules 
 666, 666. 
 
 Prelimin- 
 ary ques- 
 tiou of law. 
 
 Preparing 
 case. 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 55*S« If it appears to the Court or a Judge, either from 
 the statement of claim or defence or reply, or otherwise, 
 that there is in any action [or matter] a question of law 
 which it would be convenient to have decided before any 
 evidence is given or any question or issue of fact is tried, 
 or before any reference is made to a referee or an arbitrator, 
 the Court or Judge may make an order accordingly, and 
 may direct such question of law to be raised, {a} either by 
 special case or in such other manner as the Court or Jiulj^e 
 may deem expedient ; and all such further proceedings as 
 the decision ot such question of law may render unneces- 
 sary may thereupon be stayed. J. A. Kule '2,ii). 
 
 {(() The Eng. H. 18";-) (). 34, v. 2, had lien' the words "for the opinion of tlin 
 Court"" ; and, like original Ont. Jtiih 24!t, had not the word.s in liraekets. The 
 Kng. R. ].S.s;<, R. 8!l(), is, like tiie |)res(.'nt, A'u/c extended .•• > as to aiii)ly not 
 merely to ctions. The Hiilex are otherwise tlm same. 
 
 iJ((/f 5r)4 enables tlie j)arties to state a ease byconsfu ; the present /i'i(/c 
 enal)les a .hidge to recpiire a ([uestion of law to he stated hv special e:isc or 
 otherwise, witliout reference to consent, and to direct that (piestiun to hv 
 decided before the issues of fact are decided : Mitriipolitan Hoard v. Ni tr Jtinr 
 Co., 1 (I. J3. D. 727 ; affirmed 2 (.^ H. D. ()7. 
 
 See Jiiile (Jua, which ei\ables a Judge to direct tlu' trial of one or mure 
 questions of fact before others. 
 
 By analogy to that /Jh/c the Court will, at the trial of an action invulviiifr 
 ■questions botii of law and of fact, decide the question of law first, if it sliall 
 appear that the decision of such (piestion may render it lumecessary to try the 
 ■question of fact : J'ooliii v. Diitrr, 5 Ch. 1). 4t)(). 
 
 Where defendants contended that, assuming <iuestions of fact to be found 
 against theui, they were as a matter (jf law liable for a small sum, wiiicli tliey 
 woidd pay into Court rather tiian go to tlie expense of evidence, an order was 
 made under this Itnlr for determination of the questions of law first : Tulti r.tuU 
 V. SaliniiiiJ Stmrnshiji ('„., W. N. 1884, 32. 
 
 Tills Jtii/c is not limited to ca.ses in which the ]H)int of law ajiijcais by the 
 l>leadii>gs. The Court may look at the circumstances, whether Ijrouglit to its 
 knowledge by pleadings, affidavit, or otherwise : Mr/mpd/ihin /iiiiinl v. Xi'ir 
 Miirr C'l., 1 (.'^. B. D. 727 ; affirmed, 2 (i. B. 1). ()7. Hence, an order may lie 
 made after writ, and before statement" of claim : I/>. The Court of Api>eal will 
 not interfere with the discretion of the Cotirt below in such a matti'r, excejit in 
 a very strong case : Jh. 
 
 After api)earance the plaintiffs, on an affidavit (uncontradicted by the defen- 
 dants), that the sole (piestion between the parties was, whether the defendants 
 were bound to supply water by meter for road use, obtained an order under the 
 above Jinlc, and it was held that the order was riglitly made. The writ of 
 summons was indorsed, " the plaintiffs claim damages from the defendants for 
 refusing to supi)ly them with water bj' meter, under sec. 41 of the New Kiver 
 Act, 1852 "' : Jb. 
 
 The Court directed a special case to be set down for hearing (m the applica- 
 tion of the executrix, the first tenant for life and the trustees being defeiidaiits, 
 tlie jMjrsons interested in remainder, who were absent in New Zealand, being 
 omitted as parties : Bajleij v. Mih's, 21 L. T. N. S. 784. 
 
 See also cases referred to under Rule G.55. 
 
 5t^O. Every special case shall be signed by the several 
 parties or their solicitors, and shall be filed by the plain- 
 
EVIDENCE GENERALLY. 
 
 533 
 
 tiff. Copies for the use of the Judges shall be delivered by ?JJ?!fL„ 
 the i.lauUift. J. A. LIule 250. 
 
 "i\\v luif,'. K. 187") (). 34, r. 3, (1H83, R. 3!ll), requires the case to be printed, and 
 print :1 copies ti) he delivtrcd to the .1 iidgus. i his Rule is in other respects the 
 saiii . 
 
 SiKiiiitiire of counsel is not now necessary ; Hurr v. /Aov, W. N. 1S7(), 44. 
 
 «i57« No special case in an action to which a married Poi'sona 
 
 ' '. ,, , . , ,■ 1 , under dis- 
 
 womaii, not being a party thereto ni respect ot lier separate ability, 
 property, or of any separate right of action by or against 
 lier, or an infant, or person of unsound mind not so found 
 by inquisition, is a party shall be set down for argument 
 without leave of the Court or a Judge, the application for 
 which must be supported by sufficient evidence that the 
 statements contained in such special case, so far as the 
 same affect the interest of such married woman, infant, or 
 person of unsound mind, cue true. J. A. Hule 251. 
 
 Same as the Kng. R. 1875, O. M, l: 4, (1883, R. 3!»L>). 
 
 Tile statement of counsel that 'he statements were true was considered 
 sufficient evidence in Eliirs v. Klin:i, 1!0 W. R. 480. 
 See also sec. 32 of the Act and notes thereto. 
 
 55S. The 4 next preceding Kules shall apply to every appUce- 
 special case stated in an action [or matter] or in any pro- riUes" 
 ceeding incidental to an action. J. A. Rule 253. 
 
 Tlie Words in brackets an^ new, being taken from the V,ng. R. of 1883 R. 
 305, otlierwise tins Jtidc is the same in effect as the Eng. R. 10 of April 1880 
 (1883, R. 3'J5). 
 
 13. Ii^viDENCE Generally. 
 
 (i) Suhpq'Uds, etc. 
 
 550. All writs of subpoena may be tested, or may bear subpoenas, 
 date upon the day when the same are issued. R. S. 0. 
 1877, c. 62, s. 15. 
 
 5<>0. No subpoena for the production of an original subpoena 
 
 1 e • • 1 • 1 i- • L ai to produce 
 
 record, or of an original memorial from any registry office, oriRinai 
 shall be issued, unless the order of the Court or a Judge is to'^j^gue"^* 
 produced to the officer issuing the same, and filed with him, ^y"g°"* 
 and unless the writ is made conformable to the description 
 of the document in such order. Rules T. T. 1856, 31. 
 
 Tlie ajiiilication for tl-.e order may Ije made to the ^last-T in Chambers. 
 The ai)piication should be supported by an affidavit showing the necessity for 
 producing tlie original, and tliat the production of a certified copy will not be 
 
 
 
 <^* 
 
 ^ 
 
 % 
 
 :y- 
 
 Tlie /'»V applies to records of the Court, and memorials in the offices of 
 Registrars of Deeds ; an assignniunt of a squatter's right tiled in the Crown 
 
 
684 
 
 MISCELLANEOUS PROCEEDINOS. 
 
 mm -'^ 
 
 Rules Lands Department wim held not to be a record within the meaning of the 
 
 661, 662. Jiitlc : Mi<lnlrr v. Snmlh, 2 U. C. L. J. 184. 
 
 Orijfinal papers tiled in Court Khould not be Hent aw.ay to be used in evidence 
 at iilni /irinn, unless it is shown that th(^ j)roductionof the originals is essential ; 
 and the jtarty ajiplyin^,' to liave tliem transmitted has some right in them ; or 
 the interests of public justice refiuire their transmission: (t(ti/ii<ir v. Sidtt ^i 
 U. C. il. 15. 180. 
 
 Tn an action for malicious arrest the ))roduction of an ex.imined co))y of tliu 
 affidavit on whicii the arrest was made, and shown to liave becai used in tlie 
 cause, is sufficient /iriiiKt /(irie i)roof of such affidavit and that it was made by 
 the defendant : SiuilJurd v. Biic/kiikui, '^ (). S. 391 ; Wilsun v. T/hu-pe, 18 
 U. C. Q. B. 443. But in ivn action for malicious prosecution, the |)roducti()U uf 
 the original indictment indorsed "no l)ill " is not sufficient i)roof of its termina- 
 tion, a record must be drawn up and an examined copy produced ; Mci.'iinn v. 
 rreunriin, 1(» Out. .573 ; and .see <liinn v. Ci:'-, 3 S. ( ''. It. 2!(() ; Ilciini v. Lillk, 
 11 IT. V. (I JJ. 2il(i ; Asti.n v. 11'//;///^ 13 P. K. 14. A conviction returned to 
 the Sessions and filed by tlie Clerk of the Pe".ce becomes a record and may bo 
 proved by a certified copy : <iruhani v. Mc Arthur, 25 U C. (}. B. 478. 
 
 Any pul)lic document filed in a public office of the govennninit may he 
 proved by a certified copy : McLean v. McDowell, 1 V. O. C^. B. 13 ; K. S. 0. 
 c. 01, ss, 23, 25 ; but see iMiujtry v. /iinnniiliii, 7 Ont. 4!)!). As to jiroof of 
 orders of the Lieutenant (iovernor in Council, see K.IS. O. c. (II, s. 21, and orders 
 of the Govenial (General in Council, /h. s. 22 ; registered instruments may b« 
 proved by certified copies: R. S. (). c. (51, ss. 42-45. Cca-tified coines of 
 registered memorials are .sufficient evidence of such memorials : Lipidi v. 
 (> lltmi, C. P. 2.5!) ; but a memorial is not iilwa /s sufficient proof of tlio deed 
 to which it relates: (•■(m;ih v. Mr/iridr, ](» C. P."l()(> ; .l//.s/<7/ v. /!rco, 14 C. 1'. 
 371 ; for the cases in wliich the memorial jjroves the deed, see K. S. (). c. 112, 
 s. 1, (2) ; 3, (2) ; Be llitnjins, 17 iiv. .303. 
 
 As to |>roof of wills, see K. S. O. c. (il, ss. ,38-41 ; where tlie probate is 
 admissible as evidence under this statute, it is evidence of the testator's death, 
 as well as of the will : Davis v. Van Xiirmim, 30 U. C. (l- B. 4,37. 
 
 A Crown patent must be i)rovod by the production of the original, or an 
 exemplification thereof: Rciil v. Jiaiiti, 10 C. P. 202; McCoIIkih v. J}iifis,8 
 U. C. (-1. B. 150; a certified co|)y is not sufficient : I'rincc v. MrLfinn, 17 U. C. 
 Q. B. 4()3. Under The (Juietitnj Titles ^ I (^/, certified copies of j)atents are, 
 however, received. 
 
 Anynum- 561. Any number of names may be included in one sub- 
 names poena, and no more than one- subpoena shall be allowed on 
 incfuded in taxation of costs, uoless a sufficient reason be establislie(i 
 one sub- jq ^jjg satisfaction of the taxinf? officer for issuing more 
 than one. Kules T. T. 1856, 1G3. 
 
 Although several names are includc^d in one subpama, it is not necessary that 
 the copies served should C(mtain the names of any otlier witness than the one 
 on which the copy is served. 
 
 poena. 
 
 CalHuR 
 
 opposite 
 
 party. 
 
 5<>S. Wherever any party in any civil action desires to 
 call the opposite party as a witness at the hearing or trial 
 he shall either subpoena such party or give him or his 
 solicitor at least eight days notice of the intention to 
 examine him as a witness in the cause, and if such party 
 does not attend on such notice or subpoena, such non- 
 attendance shall be taken as an admifcsion j^ro coufi'sso 
 against him in any such action, unless otherwise ordered 
 
SUBPCENAS — EVIDENCE AT TUIALS. 
 
 585 
 
 by the Court or Jndpie in which or before whom such^"^*" 
 examination is pending, and a general linding or judgment 
 may be had against tho party tnereon, or the phiintili' may 
 be nonsuited, or the proceedings in the action may be 
 postponed by the Court or Judge, on sucii terms as the 
 Court or Judge sees fit to impose. 11. S. 0. 1877, c. G2, s. 
 18. 
 
 " At least ciKlit days " iiioans ciprht clear days : see ,R«/c 475. Sundays will 
 also prohiilily l)e excluded. The last day forgiving' "lotico of trial (see Rule 
 (J(!l) will tlierefon^ usually he tlie last day for giving' the notice mentioned in 
 this Riili; hut if two Sundays would occur hi'fore tlie date of the sittings the 
 notice may havi^ to he given liefore notice of trial. It is to he ohserved that this 
 Rii/r (liifn not say that the notice is to he given eight clear days hefore the 
 coiunii'uce nient of the sitting-s. It jjerhajjs therefore may he aufticient if 
 eight clear days elaiwe hefore the case comes on. 
 
 ami* Upon proof to the satisfaction of the Judge pre- "enoh war- 
 siding at the sittings of any Court of the service of a sub- 
 ptBua upon any witnet«s who fails to attend or to remain in 
 accordance with the requirements of the subptiena, and that 
 a suflicient sum for his fees as a witness had been duly 
 paid or tendered to him, and that the presence of such wit- 
 ness is material to the ends of justice, the said Judge 
 may, by his warrant, directed to any sheriff or other officer 
 of the Court, or to any constable, cause such witness to be 
 apprehended and forthwith brought before him or any otiier 
 Judge who may thereafter preside at such sittings, to give evi- 
 dence, and in order to secure his presence as a witness, 
 such witness may be taken on such warrant before the pre- 
 siding Judge and detained in the custody of the person to 
 whom the warrant is directed, or otherwise, as the presid- 
 ing Judge may order, until his presence, as such witness, 
 siiall be required, or, in the discretion of the said Judge, he 
 may be released on a recognizance ("with or without sureties) 
 conditioned for his appearance to give evidence. 
 
 (a) The warrant may be similar to the Form No. 202 in 
 the Appendix, and may be e.\ecuted in any part of Ontario. 
 44 V. c. 5, ss. 83, 84. 
 
 (ii) Evidence at Triah and References. 
 
 504. In ihe absence of any agreement between the Evidence 
 parties, and subject to these llules, the witnesses at the he viva voce. 
 trial of an action or at an assessment of damages shall be 
 ■examined viva voce and in open Court, but the Court or a 
 Judge may at any time for sufficient reason order that any 
 
586 
 
 MISCKLLANEOUS PltOCElODINOH. 
 
 BnieB64. particular fact or facts may l)e proved by affidavit, or tliat 
 the affidavit of any v/itness may be read at the heariiiii; or 
 trial, on such conditions as the Court or Jiidj^e may tliink 
 reasonable, or that any witness whose attendance in Court 
 ought for some sufficient cause to be dispensed with, lie 
 examined before an examiner ; provided that where it 
 appears to the Court or Judge that the other party Ima 
 fide desires the production of a witness for cross-exaininti- 
 tion, and that such witness can be produced, an order sliiill 
 not be made authorizing the evidence of the witness to be 
 given by affidavit. J. A. liule 282. 
 
 The EiiK. li. IH?'), O. .S7. r. 1 (18S3, R. 4S.S), provides for tl xanimiiifr by 
 
 interrogatories, or otiierwise, of a witiiesM wiiose atteiirliinee is dit-iieiised uitli. 
 Tiie /lii/cx are otherwise the same. Tlie use of affidavits at a tiiid \v:is 
 j)eriiiissil)le in the Coniinoii Law Courts ; hut iji Chancery, exhibits mittlit 
 formerly be proved at the hearing in that way. See also Jinlr 5(17. 
 
 In an administration action, the Court may under this J!ii/(', or liiih '>U7, if it 
 thinks fit, receive fresh affidavit evidence on further consideration ; Muijw 
 Ncwtim,'MC\\. I). 847; see, however, />o»;(r// v. I{<i<ij', (i 1'. K. Si), as to the usual 
 material which may be used on furtiier directions. 
 
 For the i>r(H;eduro where evidence is to be by affidavit see Unb' .Sdl. TIip 
 Court has only jiower to onhn' the evidence for the trial of the .iction tci be 
 taken by affidavit. It ha.s no power on a motion for judgment ))y (h-faiilt nf 
 l)leading to receive evidence by affidavit to i)rove the allegations of tlie stiite- 
 ment of claim against infants or iitm cninpotix mentis, except where Jlnlr 'M, 
 is ai)plicable : see A'///,f v. Bobbins, 50 L. T. X. S. 512 ; 17 C. L. .J. 'M-2 ; and /.'( 
 Fit:i(vt,-r, 52 L. J. Chy. 83. 
 
 The Judge should, in every case of fairly contested or disputed fncts coming 
 on to be tried, take the evidence orally unless somegood reason to the contrary 
 i.s shown: AttiL-drn. v. M(tro}iii/it<ni Dintrict lii/. Co., 5 lOx. I). 218; see also 
 Naitli-dillmun v. Chrixtophcr, 4 Ch. D. 173; Blackburn v. Brooks, 7 C'h. D. (iii;. 
 Wimicr v. Mosses, l(i Ch. D. 101. 
 
 In the absenceof agreement, evidence must be taken ri'rrt rocr at the trial, unci 
 affidavits \ised on a motion cajmot be used at the hearing: I'rrkins \. SluUi; 
 45 L. J. Chy. 224 ; but where an interlocutory motion had been ordered to 
 stand over till the hearing and a deponent had died in the meantime, tlieCcmt 
 allowed the affidavit to lie read at a trial with evidence viva voce, althoiigli 
 the deponent had not been cross-examined : Klias v. (Griffith, 40 L. .). t'liy. 
 800. 
 
 Where none of the parties cited had apjieared in an action to jirove a will in 
 solemn form, Hannen, 1'., refused to allow the execution and attestation of the 
 will to be i)roved Ity affidavit : Cook v. Tomlinson, 24 W. l\. 851. In (•'(iinill v. 
 Mason, 12 P. I). 142, an action for revocation of jn-obate, an affidavit nuidi' by 
 the witness eight years jtreviously to obtain probate was allowed to be read as 
 evidence in sujjport of the will. 
 
 In Drciritt v. Brciritt, 58 L. T. N. S. 084, an affidavit used on a motion in 
 the cause made by a witness who was unable to attend at the trial was allowed 
 to be put in as evidence. This was not allowed in Blackburn Union v. Brooks, 
 7 Ch. I). 08, where cross-examination of the witness was desired. 
 
 The consent to take evidence by affidavit must be a foraial written con.sent,. 
 and not one to be gathered from a correspondence' between the jiarties; Nnir 
 Westminster Brewcni Co. v. Hannah, 1 Ch. I). 278 ; and may be given by a. 
 jfuardia" "'' ^>tfm : 'KnatchbuU v. Fowie, 1 Ch. D. 004. The Court has no 
 power to order the whole evidence to be so taken without consent : (Jardimr v. 
 
EVIDENCK AT TRIALS. 
 
 53T 
 
 Inmhl. W. N. 1^70, ir)3 ; Patlmm v. Woalvr, 1 Oh. I). 4(;4 ; hut thu Court Im: 
 
 fused 
 
 mliswtioii til piiiiisli it party with Cdsts wlicre consent is unr(«iisoii!ihly ri' 
 sff I'lil/i'r.-tdii V. iViiiilcr, U (Mi. I). oMti. 
 
 'I'lie ^;iiiinliaii of an infant may decline the reMponsibility of consenting or 
 rpfiisinj,' to consent to tiie >ise of jiftidavits, and leave the Court to deter- 
 iiiinc whether they sliould be Hied and read or not; or he may, if he (chooses, 
 irive the necessary consent witiiout the order or leave of the Court ; Frijvrw 
 Vi."'"'"". -'4 W. it. 2(15 ; 'SA L. 'W X. S. 77!t. 
 
 AtHilavits sworn in one action may lie rt^ad a.s evidence in another, against 
 ■<iiuli of thi' defendants as are parties to both : linnnt v. HVmVc, 24 \V. H. 45(1. 
 
 The fact that an affidavit ha.s been read on an interlocutory niotioii gives 710 
 rit;lit to read it at the trial : /'ifkiiin v. .Sla/rr, 45 L. J. Cliy. 224 ; 1 Ch. 1). 
 SH; Jjhicl.liiini V. lircnts, 7 Ch. I). (W ; hko Itvwitt v. /)rrvil/, mi/irK. 
 
 .Vs to supplementing by (•/)•(( /''/cc evidenot! the evidmiee given by affidayiti 
 see (ilns.s,,/, V. H< ■•</', a h,c. Jiiiuril, 47 L. .1. Chy. 5;i(J ; 2(i VV. 1{. 433; W. N- 
 1H7H, 72. 
 
 hi the /.'"///'■ I'". V, Siiiipso)!, 24 \V. 1{. .SitO, it wa« held that the Coiirt ought 
 Kit, undiT 15 it Ki Vict. e. SO. s. 42. or s. r>7 of the .I\id. Act (Ont. Act, s. 102). 
 
 ,. itiii I'.. 11 11 f ilvIlD* )\l)ff iVlt f IM'l.l II I tl U II Itt* niir '1 UfMl>ltt-|flr* I W41*U( 111 tt\ t'l^il U ll^t- fill (I 
 
 Rules 
 Q60-066. 
 
 t(i make an order before trial, appointing a scientific person to report on 
 (pifstiiiu of fact. 
 The 
 
 eiti 
 
 riie .liiilge, at any period in a case, may allow further evidence to be called by 
 I'ulier p;irty for iiis own satisfaction, though it be dotilitful whether it would 
 hi' adniissiiile, on the request of t\w party desiring it, as of riglit ; litiild v. 
 MinV.i/i, 2il W. ]{. 1!)2. 
 
 In Kiiglaiiil, parties as well as witnesses may be excluded from Court during 
 the examination of otiier witnesses : Oii/rani v. (hi/nmi, W. N. M<7~, 75, but 
 a witness will not be excluded during the reading of affidavit evidence; /'rn- 
 nimoii \. in//, 24 \V. R. 245. S(>e also W. X. 187(i, 2'.»7. In Ontario the 
 ivchision of jiai'ties is in the discretion of the .ludge : see A'l'/c (>74. 
 
 As to proof of registered instruments, see Barber v. Mc/uii/, 17 Ont. 5('»2 ; as 
 to eviik'iice of experts, see Jiidc 207. 
 
 505. All witnesses in any matter pending before a or before i 
 Master, Local Master or Referee, sliall give their testimony' *^^'^''*''^- 
 cicn voce, and be subject to examination before the Master, 
 unless it is otherwise ordered by the Master, or by the 
 Court or a Judge, on special grounds, or with the consent 
 of the parties in the suit or controversy to which the testi- 
 mony relates. R. S. 0. 1877, c. 40, s. 100. 
 
 5018. The Court or a Judge may, in any cause or matter peposi- 
 where it appears necessary for the purposes of justice, 
 make any order for the examination upon oath before an 
 officer of the Court, or any other person or persons, and at 
 any place, of any witness or person, and may order any 
 deposition so taken to be filed in the Court, and may 
 empower any party to the cause or matter to give such 
 deposition in evidence therein, on such terms, if any, as the 
 Court or Judge may direct. J. A. Rule 285. 
 
 Identical with the Eng. R. 1875, O. 37, r. 4 (1883, R. 487). 
 
 This Rn/e has received a very lil)eral construction. It applies only where Construe- 
 thrre is pending litigation between contesting parties : lie Ilnrntt, 15 (J. B. D. tion of 
 159, 1G3 ; and may be applied at any stage of a cause, and though no motion Rule 
 
 
 fl-t> jj^cx^ c^^ IZlj^ 
 
 oci-f fi^ 
 
 /^ ay^^ ^ 
 
 
 iiW*-J pyx. 
 
 of /• f/V*^-^ 
 
 /^'C 
 
m 
 
 588 
 
 MISCELLANEOUS PIIOCEEDINOS. 
 
 ~ Rule S66. is ponding: /''lihii v. t'linmhrrlfiin, !) P. K. '283; wlicrcvcr r, t'liHc of jnHtiofl in 
 inadfMMit ; Kctt Waniir v. .lAw.sv.v, 11) Oli. |). 100. Under it, cxaiiiiimtidn Iiim 
 txicii ordered of ii party as a witnesH ; Nmliii v. Ha.tur/t, 25 (!li. I). '_'!, nr 
 for discdverv, '.'/., of a defend, lut : Fishni v, ('liiniilnrldiit, iii/irn ■ nr uf ^^ 
 idaintiflf : /t'ui/t..,i v. ///<'/,r, 11 1'. K. l!Mi ; Tiitr v. ^7r.//.■, 11 |'. H. ira ; f„r 
 (liMc^overy I'i'foi't' l>leadini,' ; hut tliis ri^lit of extraonlinary discovei'v iniiHt !». 
 jualoiisly f^uardi'd and only conceded when dearly )iroved to he iiew^iiiry iii 
 fiirtlierance of jiistiee : /iaii'/ 'ii v. lil(ih\ HHin'ti. Sei Wnllis \, Xi'nii^n, ' 
 C. \i. 'r. l.SH, where diMoovery was allowed the defeniiait heinjr iKHdwnt nf 
 facts within tlie plaintiff's knowledife. Tn Mi Xallii v. Mrhmnlil, lie. [,.']' 
 T) I, leave to examine defendant aii(l his l)ookl<(^eper was refused iHraiisn flu' 
 plaintiff did not siiew tliat he iiad a ifood cause of action, or point (jiit tlio 
 particular information lie was in need of in order to frame his statciiifiit df 
 claim : nee also Mm-tid v. Xairn, hcfore (Jalt, CI., 12 Nov., 1HH!I. 
 
 Persons not parties to tlie action mav, in a proper case, lie exiuniiicd f(ir 
 rlisccivery under this /.'"'(• ,■('.(/., in MrMnxti'i-x. .t/((.v'i((,12 I'. H. 27H, the fatlicrof 
 <lefeiidant from whom both plaintiff and defendant claimed to hac piu'clia-icdtlic 
 land in cpiestion in the acition, as he mi^'lit have lieen made a party In tlii' 
 atjtion ; and in /i'/mcv; v, /'furs, 12 I*. H. '>VM), an ax^tion fi>r specific iicrfdniiiiiKo, 
 two sisters of the vendor from whom a convevanci^ had lieen ohtiiuied at a price 
 which seemed to cast .uispicion upon the validity of the conveyance. 
 
 The /,'"'/• also applies to the examination of a witness on a iiendintf motion 
 who has n )t made an affidavit; MmKiili'in v. Itnliliin, IH f". L. .F. lHn;2 
 O. L. T. 2()i»; a witness, when it is desired to obtain information, in indtT tn 
 servi^ a defendant with the writ : S'unfrr v. liitrhvr, 27 Anj;., 1MH1, Mr. |)iilt(iii, 
 Kxaminations for the last two purposes also can \u- had tmder A'"/' 'u^, chitc'I- 
 p.indint,' to the former Hjiy. (). 2<')l> : see MrMilbiii v. \\'iiiiKliiiriiiiiih,\[) \\\{. 
 377, and notes to Rulv 078. 
 
 .\n order nmler this Kidc should generally not be made c'' /ic/Vc; Umiri/ \. 
 ailhcrl. 12 P. H. 114. 
 Examina- A plaintiff advanrMnij a claim, «.,'/., a charpe of fraud, and allef,'inir tliivt hi' 
 tiDii for lijis ,1,, l<nowledt,'e of the fact, is not in a similar position in regard to (lis- 
 ' tlisoovery, (.„v,,ry before pleading to a defen<lant resistinjf such a claim : //'. 
 
 This Riilr do(>s not authori/.e tlm makinff of an order for examination lufniv 
 trial of a ))erson not a |)arty, where no (greater necessitv exists tliiui tlif iiim 
 vi'nic'uce of the applicant in presenting his case for trial: Cantniii v. Fedcnd 
 Bank; 10 P. II. 0!). 
 
 Tn an action on a bill aoc(>))ted by tlip defi-ndant's clerk, tin' dcfcnilaiit 
 denied the authority to accept. It was held that the clerk could not lie cxaniincd 
 for discovery under this lin/i', nor the Toronto manager of the (Icfciuliint't 
 business : ItDsvnhviiii v. Sil/iindi,, 11 P. R. 7. 
 
 In riirnrr v. K>/li; IS C. L. J. 402; 2 0. L.T. oOS, an action for sedMction, 
 the defendant denied all kivjwle l','e of the plaintiff's daugliti>r on any (icciwinii, 
 and the plaintiff on being examined did not know anytiiing about the alli'j;e(i 
 .seduction ; the defendant having exhausted all regular and ordinary iiicaii'; 'if 
 obtaining discovery with effect, was held entitled to examini' the plaintiffs 
 daughter nnder this llnlr that he might know the case to be met iit tiif 
 trial. 
 
 In Lain'' v. D Kiilf, (Mr. Dalton. «th May, 18S3), the action was to (establish 
 an adege'l will, suspected by the defendant to have been a forirery of tli'- 
 plaintiff's husband, who was not a (larty ; the plaintiff having been exaniiiieii 
 iiad no knowledge of it, b'.it the circum-itances under which it had cnme into her 
 hands woiv suspicious, and an onler w-as made, nnder this Hid', on defendants 
 application for (ixamination of tln^ plaintiff's husband for discovery. 
 
 Where the defendants asserted, as a counter-claim, a claim against tli(^ plaiiitirf 
 which tli.'\ had bought fnnn the assignee of F. & li., stock brokers (nut parties 
 to this suit) for the balance of an account fen- carrying stock for the pkiiiititf, iiml 
 the iilaintiff made affidavit that he believed F. & 1,. had dealt iniprn))erly with 
 the stock they were carrying for him, but that he had no means of diHCovmnn 
 this except by examining thiun, an order was granted to examine them for 
 discovery only, under this Ilule ; Curntyie v. Cox, 11 P. K. 311. 
 
KVIDKNCE AT TllIALH. 
 
 539 
 
 Wlit'i-t' tilt' |ilaiiititf \va« ivssi^^iu'i' of A. H. M., an iiiHolvinit trador, and wan Rule S66. 
 Hiu'il liv A. S. .M.'h fatlicr olainiinK' Ui nnik on the estate, an order wa-i made 
 for till' eximiinalion of A. S. M., the |)laintifF liavint{ no knowli l.'c of tlie 
 cluim: Miirra;/ v. Wnnin; II I'. \i. IW. 
 
 In (liiriliiii V, I'lii/li/m, 11 I*. I{. "'-lO, an order for examination was made to 
 Piiiilili' tiie |ilaintilF to ascertain partiuidarx of slander, in order to frame iiis 
 Bttiti'inent of claim. 
 
 In apidyiuK' under thin Jtiilf to examine witnesses i)efore trial, it in not i .,v pur- 
 siifficieiit to shew that the examination will materially lienetit the applicant. p"-^''-t "f 
 It must I"' sliewn that he has unsuccessfully used the re^'ular and ordinary •■'"' trial. 
 ini'iiiiH fur discovery, or some otiier special reas<in must lie Ki^<'U ^^hy the witness 
 slumld lie examined, out of the rejfidar course, and not at the trial for tin iir^t 
 time: Hfii<lrir v. Nivlni,, 1!» O. L. .1. IH; •_> C. L. 'V. iV.I'.l. 
 
 Wlicre an order is made, mly material dcKMunents need lie produced, sitch as 
 Wduld he produced at a 'u • i staj,"' in the action. The examiner has the same 
 |Hiwcrs as a special examiner \inder Jtic/i lit", as to directin(< iiroduction of 
 (liicnnicnts : i<-,«'n v. Krrr, II 1'. \{. IL'H. 
 
 I'nilcr this Itiili, or I'lilf fiSS, orders may he made for examination of a 
 witness ill' III III- I's.it, for u.se at the triid, oi' on a referen(^e in tiii> .Master's 
 (irtici^ : Jli' Diiiiffiiril, !) \\ H. 17-' ; see also lliilr aSS. 
 
 Kxaiiiiliation of a witness ilf ln'm' I't'ic is allowed where there is dan^fer of lO.xaniiiiii- 
 li)!<iii)f testimony fi'uni death, nv ahsence, at the time of the trial. ,\n order tion ili- hine 
 will tlicrefore he made where a necessary \\itness is ^roinj,' al)ioad, or is from '■''■■''''• 
 ilini'ss, a^fe, or other infirmity, likely to lie uualile to attend the trial : Wurmr 
 \; Mns.siK, ]{) CU. I). KM); and p'lierally speaking' whei'ever Justice reipdres it, 
 tluiudli as a rule only where the evidence is to lie used for some definite 
 judicial procceilinf,'' jiendinK : Whilflniiil v. /Iiijj'itln <l' A. .'/. A'//., I'. ('■ Ij. •!. 
 232, where an order wan made in contemi>lation of a reference to a AlastiT not 
 yt't directed. 
 
 If the ^;ronnd is that the witness is over 7" years, or dangerously ill, or 
 dniiijf immediately abroad, the application mav he nuide *'.'■ /«'//<■.• Dan. I'r., 
 .^th ed., S17; O/i'rrr v. hirkni, 13 Chy. (!h. H7 ; Cn'/ipi'ii v. <)i/i/ni/, Id. ;{()4 ; 
 Miler \. Hiiiliji's, 2() Ch. I). 1; linlrr v. .Inrhsnii, l(t P. H. (ilM ; hut the 
 C(iurt in its discretion refused to ajiply this rule to the extraordinary ease of 
 thirty witnesses over 7<) yeai: in liiildir v. Jifiil:/i'n, supra. 
 
 In (itlier cases notice shonld lie served ; -ee Audi'rsim v. AhiIitsihi, 1 f'hv. Ch. 
 291; Simti-x v. Wm/i/,//, 7 P. ii. L'dO. 
 
 If the only frround is that the witness is the only witness as to wjnie fact 
 this. should he clearly shewn : I/o/n' v. Hi'/n', 'A Heav." 317 ; Jiniu'mni v. .Imics, '.\ 
 Chy. Ch. lis ; Imt tlie order may jirovide that the examination is not to he nsed 
 at the trial unless the attendance of tiic witness cannot he procured : EUinU v. 
 CW. ^//. CiK, 12 P. K. .OiW. 
 
 That the witness is goiuf? abroad isasnfticient ground. lie neeil not be going 
 liermanently, or be the only witness : f<,,i;i,-s v. W'ki/iIi'/I, 7 P. H. L'tiO. 
 
 As to what must be siiewn at tlu^ trial before the depcLsition when taken 
 can be used as evidence, see Dan. I'r., .'ith ed., 81!). 
 
 Till' fiinn of order i/r lienr csvc in .Seton, 4th ed.. Ki.'C), 
 •hould not state absohitelv that the depositions mav be 
 lUirhm V. Sliiffnrdshife Jti/.'Cn., :« VV. H. 5;{(i ; oC. L. 'P. N, 
 tht Trmsnnj v. White, ,V) L. J. Pro. 7i» ; W. N. 1H8(), 144. 
 
 In C(mse(nience of the provi.sion of original Rith' 28!), requiring consent to F.xaniina- 
 enable the evidence mider a commission to be taken c/iv? mrr, and of original tion of a 
 «Wf 2!)!l, staying tlii^ trial until the return of a commission, the examination of witness 
 witne.ssps out of the jurisdiction orally, or witlio\it a stay, used sometinu-s to be 'ibroart. 
 orclerpd luider this Rvlr. Thougli th'otx! reasons no longer exist, this Hitli' may 
 "till Im' invoked if necps.sary to obtidn the evidenc;* of a witness for use at the 
 tml, without the i.ssue of a commission, whether the witness be without, or 
 ™nn the jurisdiction, wiierever it may be necessary and just : set; notes to 
 
 is not correct. It 
 used at the trial : 
 S. (iOl ; Sulicitiii- (;/' 
 
540 MISCELLANEOUS PKOnEKDINGS. 
 
 Rules Examination abroad under tiiis linlc will Ix-onlored ujvjh tlie same principles 
 
 657, 663. and under the same circiuiistances as a commission would be ordereil : as t(i 
 which see Rule 558 and notes. 
 
 Tliere is a ditferentie between a party seeking' to have Iiis own examiiiHtjiin 
 abroad and a mere witness. In botii cases it is a matter of judicial (iiscrctidii, 
 but the discretion will be exercised in a stricter manner in the case of a partv 
 Coch V. MIrarh, 2 t^ B. \). ITS, IKl. 
 
 An order for examination of a plaintiff otherwise than before the Cdiutaiiii 
 jury was considered not proper, wliere the issue was forj,'ery of the iiiaintiif's 
 name or a )iersonation of tlie plaintiff ; T/miivis v. SlmYif, 11 P. K, 417. 
 
 It IS not nenessary to apply under tiiis Rn'e for an order to exainiin' witiiP^SM 
 on a reference after jud;,'uieiit ; tlu^ former practice of subpcEiiaing witiiout leave 
 is not abolished : R((i/iii'iiid v. Ttipnoii, 22 Ch. I). 430. 
 
 Affidavits miT, At the trial of an action, or of any furtlier direc- 
 
 l)V consent ' »/ 
 
 or by leave tions therein, affidavits of particp.l.u' witnesses, or affidavits 
 
 Court! as to particular facts and circnmstauces, may l)e used by 
 
 consent, or by leave of the Court ; and such consent miiy 
 
 be given on behalf of persons under disability, with the 
 
 approbation of the Court. Chy. 0. 17(5. 
 
 As to matters which may, and may not, lie proved by affidavit under this 
 Rii/r: see Dan. Pr., oth ed., 777, V2'M> ; M'/v// v. Tlm-n'lim, !t Ha. I'lW; A'w/.r 
 v. R'-i/ii,t/, 1.5 .Fur. 101!) ; l)<-li-nnih- v, ('hl'd, (J ,Iur. N. S. IIS ; liin^li v. Wiiihii', 
 14Beav. 33; //ix/ktoii v. /f,i,ilit,m, 15 Beav. 27.S ; «'•"• v. .s',„////, 5 !>. & S. It'; 
 Fiil/oKK' V. /)il/i)ii,2 W. R. .507; Jldtrinnii v. Micr./ci-isiii,,2\V. K. (107; UimiM 
 v. C/'iiffrrs, 11 W. R. 5S5 ; A'/v'/(,v v. L-n'is, 2 L. T. N. S. 5.5!) ; Fkmiiuj v. 
 /iixt, Kay App. lii. ; Miiri/niiii/d v. Antf/iiu; W. N. 1HS4, 72. 
 
 Affidavits as to defendant's conduct after judgment may be read by the 
 original plaintiff on the jUestioii of costs ; but not affidavits as to defeiuiant's 
 conduct before judgment ; but it would seem that persons added as dcfeiiilanti 
 in the Master's office, or who are served witli the judgment under Ji"!'' 'i'^1, 
 may read affidavits as to the defendant's conduct before, or after judgmeiit, on 
 the question of ct)sts : R(' Iti'riU, /a'I///i v. JtiiniHri/, 55 L. 'I'. N. S, 542. 
 
 See also Rii/c 5()4 and notes. 
 
 When to 
 be filed by 
 plain titf. 
 
 *>(».S. In case the parties in any action consent to tlie 
 evidence beinj^ taken by affidavit as between the plaiutift 
 and the defendant, the plaintiff within 14 days after such 
 consent has been given, or within such time as the parties 
 may agiee upon, or a Judge in Chambers may allow, shall 
 file his affidavits and deliver to the defendant or his solicitor 
 a list thereof. J. A. Eule 301. 
 
 Same in effect as the ICng. R. 1875, (). 38, r. 1, (1883, R. 545). 
 
 As to when evidence may be by affidavit, .see Riifi' 5(i4 and notes. 
 
 Where the parties to an action agree under this Itidr to take the evidence 
 by affidavit, and eitlier |>arty siibsecpiently finds himself unable to prdcure 
 affidavit eviilence, either by reason of the reluctance of some ()f his witnesses 
 to make affidavits cr other good cause, his proper course is to move to ue 
 relieved from tiie agreement, and the Court will, in a proper ease, make a" 
 ordei that the reluctant witnes.ses be examined v/(V( i-arf at the trial, '""' *' ,^ 
 ojition of the other party, disciiarge the agreement, aiul direct '"' |'"' 
 evidence to be taken n'ru mre at the trial : Wnnii'r v. Mnsscf., 1(1 Ch. D. Iw. 
 
 Where the agreement does not specify that the evidence shall lie taken b) 
 affidavit "alone" it is competent to a witness who has made an affidavit, tw 
 
-.^ .jiV-o- :^.: ■,:•, t ;Ts:t) 
 
 EVIDENCE AT TRIALS. 
 
 541 
 
 rtlier direc- 
 01' affidavits 
 he used by 
 oiisent may 
 ty, with the 
 
 avit under this 
 Ha. -JSH; /•'""•'■''■ 
 'iiisli V. Wiilkiii', 
 <h, r)U.&S.lf.'; 
 R. (i07 ; //""■'I''' 
 ,.-)!( ; Flmwj v. 
 
 msent to tbe 
 the plaintiff 
 rs after such 
 ,s the parties 
 r allow, shall 
 L" his solicitor 
 
 siinDlcnient liis evidence by evidence rir'i nice; <,'/ii,sfio/) v. Ilrsttm, etc., /,o(V(/ Rules 
 Jiviinl, W. N. 1878, 72 ; 20 W. li. 433 ; 47 L. .f. Ciiy. 53(i. 669-871. 
 
 Wlurc tlic |)artie.s have agreed to have evidence l)y uitichivit, tile action must 
 be tried liy a .ludfje without a jury ; lirookc v. 11'/'///, 8 (.-ii. 1). 510. 
 
 Tlie Court lias autiiority to order witnesses to he examined orally at tile 
 trial iiiid extdude utHdavits Hleil l>y agreement, if of tlii' o|)inioii that tliat 
 course is necessary : J.ocrll v. Wulli'x, 4!) L. T. X. S. 5113, 53 1.. J. Chy. 4',t4. 
 
 5U0. The defendant within 14 days after delivery of i^^''"?"*" 
 such list, or withm such tune as the parties may agree defendant, 
 upon, or a Judge in Chambers may allow, shall lile his affi- 
 davits and deliver to the plaintitJf or his solicitor a list 
 thereof. J. A. Faile 302. 
 
 Identical with the Kiig. K. 1875, <). 38, r. 2. (18S.'i, R. .54(1). 
 
 Where the iilaintitf tiles no atflda\ it the time for filing defendant's affidavits, 
 in the ali-eiice 'f agreement or sjieuial order, will not liegin to run till the 
 |)l;iintiif has given express notice tliat he does not iiitenil to tile affidavits: 
 Eaitus V. Jiiii-ilii, 5 Ij. R. Jr. 580. 
 
 Filing afli- 
 ilavits in 
 reply. 
 
 570. Within 7 days after the e.xpiriition of the said 14 
 days, or such otiier time as iiforesaid, the plaiiitiH" shall lile 
 his affidavits in reply, which athdavits shall he confined to 
 matter strictly in reply, and shall deliver to the defendant 
 or his solicitor a list thereof. J. A. Kule 303. 
 
 Identical with the I'.ng. K. 1875, (). ,38, r. 3, (1883, K. 547). 
 
 Affidavits tiled by a plaintiff in reply will not, upon an interlocutory motion, 
 l)e iirdei'ed to lie taken idf the tiles upiui an allegation liy the defendant that 
 tliey iire imt confined to matters strictly in reply, thon^-h at the hearing, if it 
 slimdd turnout to he so, the Court will not reganl them, or may give leave to 
 tiiedefendant to answer them; (iil/ini v. Cdiin'i/i/ (tjicru Cuih/hdi i/, 2!( W. K. 
 ltl'.l;43L. T. N. .S. (Km. 
 
 It has heen held in l"'ngland, that affidavits in reply m.ay hring forward 
 .•ulditidiial evidence in su]>port of the original case, and are not rt'stricterl by 
 this llidi, to the ]i(iints raised by the defendant's evidence : I'lva^ck v. 
 H"rj»;\- Ch. 1). ()48 ; see also Ailnirv. Yi'Kini, \\. X. 187'.l, 8; lioi v. JJurics, 
 2Cli. D. 731. 
 
 571. Where the evidence is taken by affidavit, any ciossex- 
 
 »«,,*.. J • • i • T 'ill 1 aniinatioii 
 
 imitv aesiring to cross-examine a deponent who has made on amua- 
 an nfiidavit filed on behalf of the opposite party, may serve ^'''' 
 upon the party by whom such affidavit has been tiled, a 
 notice in writing, requiring the production of the deponent 
 for cross-examination before the Court at the trial, such 
 notice to be served at any time before the expiration of 14 
 days next after the end of the time allowed for tiling aflida- 
 vitsin reply, or within such time as in ^.n;- case the Court 
 or a Judge may specially appoint; and unless such deponent 
 IS produced accordingly, his affidavii shall not be used as 
 evidence unless by the special leave of the Court. The 
 party producing such deponent for cross-examination shall 
 
542 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 B72^B% not be entitled to demand the expenses thereof in the first 
 instance from the party requiring such production. J. A 
 Uule ;{04. 
 
 Siiim. as Kng. K. 1875, O. 3.H, r. 4, (1883 R, 548). 
 
 Wlicii in iiii iiii/iiiri/ ill 11)1 iirliini it is proposed to road an affidavit, the Court 
 has jm-isdictit.ii, upon ])n)i»('r application heinh' niadc^ to recpiirc tlitMlciwiient 
 to lit' priiduc(?(i for cross-cxainiiiation, if .satisfied that this is re(i\iisiti", but 
 sucli an a])i(Hcation is not (iroperly niatle under this Miilv merely liy a notice for 
 tlie prochiction of the deponent for examination without specifying any time or 
 place : Ih- .hoid V. Cnnlui, 32 Cii. 1). 133 ; 11 App. Cas. 541." 
 
 A plaintiff, served with a s\ih|«i!na re((uiring her attendance for cross examina- 
 tion on iier affidavit, oniitt(>(l to attend on the j;round that her expenses iiad 
 not lieeii jj^iven her. < )n motion sh<! was ordered toattentl at lier own exiien*; 
 Mansil V. Cliiiiriutnlc, Manyvl v. A'lirlaii, ,53 L. T. N. S. 4!)() ; 54 L. J. Ciiy 
 982. 
 
 QiW'!i whether this liiih' i'.pjilies not only to cross-examination of (leponents 
 before tiie Court at the trial, hut also, after the trial, in pro'jeedinjfs oii u refer- 
 ence, or h'.'for*^ a s|)ecial examiner : A'c'/Z/ncsc v. Alcock-, 28 Ch. I), lili!). See 
 also Sj,ui,ih-rs V. Kinjruti-, 2'.» Sol. dour. .334 ; and Ite lUdcr, 2!l Cli. 1). 711, not 
 following He h'nii/it, Kniij/i/ v. r,'r( /■(///)(■/-, 25 Ch. D. 2!)7. iin'Cimfhitw.i'diii-k, 
 11 ApiJ. (.^as. 541, 5.58, 5511. 
 
 The fact that a witness has disolieyed an ot ler to attend and be cross-exam- 
 ined, is not groimd for talviug ids allidavit off the tiles ; because liy this /in/f 
 it can only be used by sjieeial leave : Mei/rirk v. Jomrs, 4(1 L. J. Cliy. 5711; 
 W. X. 1877, 1211; see notes to Riili- 5(i8. See also I'lKispliHte tSfira^e t'v. \: 
 Ilurliiinul, \V. N. 1875, 235. 
 
 This is not tlie only penalty for non-attendance. Attendance may be com- 
 pelled as in otlier cases if a sid)p(una is served : Rf Jiii/crr, 2!t Ch. 1). 711 ; see 
 Jii'h' 572. 
 
 The opposite i)arty mav cross-e.xamine witnesses who have made affidavits 
 though th<'y are not 'read ': R<- OIUiwkii, W. X. 1882, ; 30 W. K. 282 ; lUAjuttrt: 
 I'ill, ell., I'd., 21 Ch. D. ()42 ; but .see Masmiin v. Tlmrkn's Foi'd t'w., W. N. 
 187'.>, 181. 
 
 Compelling ♦'iT'a. The party to whom such notice as is mentioned in 
 
 of witness, the hist preceding Rule is given, shall be entitled to compel 
 
 the attendance of the deponent for cross-examination in 
 
 the same way as he might compel the attendance of a 
 
 witness to be examined. J. A. Rule 305. 
 
 Identical with the Eng. R. 1875, (). 38, r. 5 (1883, R. 519). 
 
 Lil)el or 
 slander, 
 particu- 
 lars. 
 
 !i7ll. In actions for libel or slander, in which the 
 defendant does not by his defence assert the truth of the 
 statement complained of, the defendant shall not be 
 entitU'd on the trial to give evidence in chief, with a view to 
 mitigation of damages, as to the circumstances under which 
 the libel or slander was published, or as to the character of 
 the plaintiff, without the leave of the Judge, unless seven 
 days at least before the trial he fui-nishes particulars to the 
 plaintiff of the matters as to which he intends to give 
 evidence. Naw. 
 Taken from Eng. Rules 1883, R. 461. 
 
 examinr 
 same m 
 be e.xam 
 
 ('() Inst 
 which ,sha 
 Court.' 
 
 Tlie affid 
 Iw an atfid 
 C.L. .1. ]] 
 
 See Rill. 
 
 When th 
 "f, the ri" 
 11 W.K.J 
 
 DeiKiiici, 
 Fimter, ii 1', 
 
 A jjarty i 
 
 so as to av( 
 -'«;/'*.v 
 
 the pafisagi 
 '•wi/niie v. 
 
 As to ex 
 ''wdiner, 4 
 571, 
 
 See also 1 
 

 which the 
 truth of the 
 lall not be 
 ith a view to 
 under whicli 
 character of 
 unlcHS seven 
 culars to tbe 
 mds to give 
 
 EVIDENCE ON MOTIONS. 
 
 543: 
 
 Where the defeui-e does assert the truth of the statement complained of, it ftules 
 has bei'U lit'hl that evidence as to tlie phiiutiff's character with a view toniitiga- 574-677. 
 tidii i)f (lainaKes, is not admissible unless the facts relied on are pleaded : ,ScoU 
 V. ."yiniiis,,,,, « (i. B. D. 4itl. 
 
 {>74. Where an examination of any party or parties, f'opies of 
 witness or witnesses, has heen taken before a Judge of tlie coiuflwiby 
 Hij:;h Court, or of any County Court, or before any other UJ^J'^thV'* 
 ofhcer or person appointed to talie the same, copies of ^^'MJ.^'^ja'^Vi,, 
 such examinations and depositions certified under the hand evidence, 
 of the Judge, officer or other person taking the same shall, 
 without proof of the signature, be received and read in 
 evidence, saving all just exceptions. 42 V. c. 15, s. 3. 
 
 57»i. An affidavit of the Solicitor in the cause or his Evidence 
 
 , , . , . ,. , ■ , 1 1 ,. , 1 of service 
 
 clerk, of the service of any notice to produce, and oi the of notice to 
 time when it was served, with a copy of such notice to pro- ''*° "'^*'' 
 dace, shall be sufficient evidence of the service of the notice, 
 and of the time when it was served. E. S. 0. 1877, c. 50, 
 s. 173. 
 
 (iii) Evidence on Motions. 
 
 570. Upon any motion or petition, evidence may be i^-videnpe 
 
 , A,' 1 •! o" motion,. 
 
 given by affidavit. oriietition.. 
 
 577. Every person who makes an affidavit to be used (^0 cmss-ox- , 
 in any action or proceeding shall be liable to cross- on'atKda" 
 examination thereon, and may be required to attend in the^'''''' 
 same manner, and subject to the same rules, as a party to 
 be e.xamined in the cause.- Neiv. See Chy. 0. 268. '^ ■ ' 
 
 ('() Instead of "in iiny action or proceeding " Chy. O. 208 had the words "or '" y'* , ^"C '>. 
 which shall be u.sed on any motion, petition or otiier proceeding before the'V^"^ r' ^i -4"^ 
 Court." f ■*A-^* . i-A/^f^ ^»-- 
 
 The affidavit of justification of a surety in an appeal bond fi'rid, was held to"*" ' . ^^''■^y \^ji-m^ 
 Iw an affidavit used in a proceeding within Chy. O. 208: lliujiws v. lluuhes, ij^-*^^^ ti .1'* y^y^. 
 C.L..1.]10;1C. L. T.]8<) ./ ./ . !<*c^^^K:t,.^/^C^^ 
 
 SeR iJ»s-.W/ V. MmhrnaUl, 12 P. R. 458, in note to Rule 4!).S. "??<-<■ / 'J-/' -* ,^ /^-« 
 
 When the proceeding for which the affidavit has been filed has been disjiosed ■'.' (^ ■>^e - ' /3Af ' 
 of, the right of cross-examination is gone : Catholic I'rintin'i Co. v. Wtmnv, 
 11 W. R. S!)<); Ff/nii V. Mctiil/, 3 Chy. Ch. ,50; Clendiiuiinij v. i'arcoe, 7 P. R. 01. 
 
 De|)onents making affidavits in reply, are liable to cross-examination : Jie 
 Foster, (i P. K. !t5 ; <) C. L. J. 313. 
 
 A party cannot withdraw an affidavit which he has given notice of reading 
 so a.s to avoid a cross-examination of the deponent: Clm-h'. v. I.nn; 2 K. & J. 
 28; yWc y. hickinson, 21 W. R. 8()2; W. N. 1873, 178 ; Re (Jiiartz M in inn (-''>■, 
 h L. r. N. S. 044 ; 21 Ch. I). 042. The party cross-examined cainiot insist on 
 the passage in his affidavit l)eing read, or shown, to him, befoi-e lie answers : 
 "wi/nne v. Wiiliic,},, .31 L. T. C). S. 231. 
 
 As to exiXMise of i)roducing witnes.s for cross-examination : .see Kniiiht v. 
 ['mlnia; 4!t L. T. N. «. !)4 ; W. N. 1883, 152 ; 19 C. L. J. 273, in notes to Rule 
 
 '■>i\. 
 
 See also note to Rules 4i)0, and 578. 
 
 <rJr ^^ 
 
 iflM:lKwa:£iw| 
 
I 
 
 i 
 
 i 
 
 \ 
 
 544 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 M« 679 STS. A party to any action or proceeding may, by a writ 
 
 Attendance ^^^ subpoena Oil testificandum, or duces tecum, require tlie 
 ses^o-'T ^t'tsndance of a witness to be examined before the ('ourt, or 
 aniinatious before any officer having jurisdiction in the County where 
 "ionsjiow the witness resides for the purpose of using his evidence 
 procured. xi\:)Ou any motion, petition or other proceeding before the 
 Court, or any Judge or judicial officer in Chambers. 
 
 {o) The attendance of such v/itness is to be secured in the 
 same manner, and subject to the same rules, as upon the 
 examination of a party in the cause. J. A. Rule 5!)8. 
 
 Motion 
 niUBt bo 
 Iieudin)^. 
 
 Subptena, 
 date of. 
 
 Notice of 
 oxauiina- 
 tiou. 
 
 Witness 
 fees to be 
 p.iid. 
 
 Kxamina- 
 tion of 
 party out 
 of jurisdic 
 tiou. 
 
 Default of 
 witness, 
 how pun- 
 islied. 
 
 A niotion must be pending to enable a l)arty to proceed under t\\\nRul(\ 
 Trillin's' Hunk v. Kuni, Vi P. R. GD. De|)u.sitions talcen when no motion or 
 other ijroceeding is i)Bnding, are irregular, and am not ))e read ; Stiml v. 
 Culci, 3 Chy. Cii. 302. 
 
 A sul)i)cena for tin; e.xaniination of a witne.ss, dated prior to the time at 
 whieli tile party issuing tlie same was entitled to e.xaniine the witness, was luld 
 to be irregular : McMiirriii/ v. (irunil Trunk li.ii. Co., 3 Chy. Cii. 13(». 
 
 The party retpiired to be examined is entitled to reasonable, Imt not iiecos- 
 sarily to 48 hours', notice: AV N'orth Whinl. Exmouth Miniuij Co., 31 lieav. 
 ((2H ; S .Tur. N. S. IKiS ; Rule 490 ; uuIh^s he has no solicitor, in whicli case lie 
 is entitled to 48 hours' notice : Jink 491 ; Watson v. JIain, 1 Cliy. Cii. 2!)3. 
 
 Tile examination of a part;/ is ui)oii an appaiiitinent of the examiner, a coin' 
 of which, as well as a copy of tiie subii'Ena must be served : see Riilr 4!)0. Tlie 
 same procedure siiould ))e taken under this Jiii/r : clause («). 
 
 A witness, whether a party, or stranger to the cause, who is required to 
 attend for examination, is entitled to be paid ordinary witness fees, and may 
 refuse to attend, or, if attending, may refuse to be sworn, until paid: Urocasw 
 LlomI, 23 IJeav. 129 ; Wiltshire v. Miirshii'l, W. N. 18()(i, 80; Duveii v. bnrnmt, 
 24 Beav. 493, and see R>him v. Cum m, 2 Chy. Ch. 343 ; Jiulkow v. Fushr, 1 
 P. R.. 388 ; Smith v. (.■n-iii, 11 P. R. 345. 
 
 Where the witness, or party, rerpiired to bo .examined in support of a motion 
 is out of the jurisiliction, an order for a commission may be obtained as soon as 
 the notice of motion is served: Ftirrcll v. Cruikshuiik, 1 Cliy. Ch. 12; or if 
 a resident in Quebec a subpiena may be ordered to issue under C. S. C c, "9, 
 s. 4 ; Moffatt v. PretUi c, fi P. R. 33 ; McKcrchie v. Monti/imini, 1 Ciiy. Ch. 
 225. 
 
 Default of Witness.— The certificate of default should show that the witness 
 had been duly subpienaed, a statement in the certificate, tiiat evidence of the 
 service had been produced, is insufficient ; Waddle v. MeUinty, 2 Chy. Ch. 442; 
 ivnd see Suthrrlitiul v. R'l.ivr.t, II)., 191. 
 
 A witness failing to attend is liable to be committed for default. A witness 
 who .attends, but refu.ses to answer proi)er (juestions, may, on motion, 1« 
 ordered to attend agaiii and submit to answer the questicms at his own expense, 
 or in default be committed. 
 
 A motion to commit must be made before a Judge : Kecfe v. Wurd, 18 
 C. L. J. 1«G; 2C. L.T. 200. 
 
 A witness attending for examination, is not bound to wait more than iialian 
 hour, unless notified that his examination is to be jiroceeded witli : Pi'rka v. 
 Stottiirt, 1 N. R. 5(i3. 
 
 ■Court or 
 Judge may, 
 
 570. Upon the hearing of any motion before the High 
 
 onbeaiiiiK Court or a Judgc the Court or Judge at discretion, ana upon 
 
 such terms as it or he thinks reasonable, may from time to 
 

 EVIDENCE ON MOTIONS. 
 
 545 
 
 ic 
 
 And may 
 make rnlo 
 or order 
 thereou. 
 
 time order to be produced such documents as it or he thinks l^^^. 
 lit, and may order such witnesses as it or he thinks neces- monB.order 
 sary, to appear and be examined viva voce before such the pro<iuc- 
 Court or Judge, or before a Judge of any County Court, documents 
 or before any other person, and upon reading the report eLmhia-'* 
 of the Judge of the County Court, or other person, as"""^- 
 the case may be, or if no such reference is made, then 
 upon examining such documents or hearing such witnesses 
 by the Court or Judge, the Court or Judge may make 
 such order as seems just ; and in cases within the 
 jurisdiction of a County Court, the Court or a Judge 
 therein having jurisdiction in the case, may order the 
 production of documents or the attendance of witnesses 
 before such Court or Judge, or before the Clerk of such 
 County Court, and upon hearing such evidence or read- 
 ing the report of the Clerk, may make such order as 
 seems just, in like manner as if the proceedings were had 
 in the High Court. 11. S. 0. 1877, c. 50, s. 175. 
 
 550. The Court or Judge may, by the order, command ^y^JJ^g^'^^y 
 the attendance of the witnesses named therein for the pur- compel 
 pose of being examined, or may command the production Sfwitifes^* 
 of any writings or other documents, to be mentioned in the j^fyt-'o^j'^^j 
 rule or order, and in the case of a Judge, he may, if neces- rtouuments 
 sary or convenient so to do, direct the attendance of the "atfes. ^ 
 witness to be at his own place of abode or elsewhere. 
 
 E. S. 0. 1877, c. 50, s. 176. 
 
 It would seem tliat tlu; produciion can only be ordered for the purix)ses of a 
 l)endiiig motion and that the Court has no ix)wer under this Rule to order a 
 l)er.son, not a party to the action, to produce documents in his possession 
 merely for the purp'.se of enabling a party to the action to inspect the same 
 before trial : see iitraker v. Rci/uokls, 22 Q. B. D. 202 ; (50 L. T. X. S. 107 ; 
 Central News Co. v. Eastern Ncm Telegraph Co., 53 L. J. Q. B. 23(i. 
 
 551. If in addition to the service of the order an Disobedi- 
 appointment of the time and place of attendance in obe- awntempt 
 dience thereto, signed by the person or persons appointed °^ ^""'■*- 
 to take the examination, or by one or more of such 
 persons, is also, served together with or after the service 
 
 of the order, the wilful disobedience of the order shall be 
 
 a contempt of Court, and proceedings may be forthwith 
 
 had by attachment. But — 1. Every person whose attend- witnesses 
 
 ance is so required, shall be entitled to the like payment expenses' 
 
 for attendance and expenses as if he had been subpoenaed 
 
 to attend upon a trial ; 2. No person shall be compelled J'^en^lfeTd 
 
 .I.A. 
 
 35 
 
 i. .. y= 
 ■! s mi 
 
546 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 Roles 
 B82-58S. 
 
 not be pro 
 duced. 
 
 to produce under any such rule or order, any writing or 
 other document which he would not be compellable to 
 produce at the trial of the cause ; 3. The Court or Judge, 
 uons'iim ' ^^ person appointed to take the examination, may adjourn 
 the same from time to time as occasion may require. 
 R. S. 0. 1877, c. 50, s. 117. 
 
 be ad 
 journed. 
 
 "ulranmy S*^- The sheriff, gaoler, or other officer having the 
 be brought custody of any prisoner, shall take the prisoner for any 
 evidence, examination authorized by these Bulec;, wben so directed 
 by an order of the Court or Judge ; which order may be 
 issued by the Court or Judge under such circumst noes as 
 appear to warrant the production of the prisoner. R. S. 0. 
 1877, c. 50, s. 178. 
 
 copi'^s^of ♦'»^3» Wherever any party wishes to produce to the 
 
 proceed- Court or a Judge, the writ or any pleading, or other pro- 
 
 beobtained cecding filed in any office of the Court, he may demand and 
 
 office ''^'^ receive from the officer in whose office the writ, pleading or 
 
 whereflied. other proceeding is, a copy of the same certified by the 
 
 officer to be a true copy of the original, and the copy so 
 
 certified shall be admissible in evidence in all causes and 
 
 matters and between all persons and parties, to the same 
 
 extent as the originals would be admissible. New. 
 
 Default ill | 
 payment, 
 how to be 
 proved. 
 
 Certificate 
 of noii- 
 
 Eayui^nt, 
 ow to be 
 signed. 
 
 5H4. Where default is made in the payment of money 
 appointed to be paid into a Jiank, the certificate of tl"^. 
 Cashier, Manager, or Agent of the Bank, wher^; t! - j.'i.' 
 is made payable, or of the like Bank officer, shfd; • ' ;■ 
 cient evidence of default. Where the affidavit of li ' ; ■} 
 entitled to receive the same is by the present \yr -c 
 required, the same shall still be necessary. Cliy. (3. 257. 
 
 The certificate should be signed by the cashier, manager, or ajjfiit, or like 
 officer. The certificate of an .account.int in the bank is not sufficient ; ('wnp- 
 hill V. (inrrctt, 1 Chy. Cli. 250. A certiiicato of default sliould state that the 
 money was not (jaid before, as well as on, or since, the d."y a])i)ointe(l : Farrdl 
 V. ,St(ikes, 1 Chy. Ch. 201. The certificate does not prove itself, but luust he 
 verified by an affidavit. 
 
 The affidavit of the plaintiff of non-payment is u.sually required on the 
 motion for a final order for sale, or foreclosure, in addition to the certificate of 
 the bank : see Rule 3.53, note. 
 
 Power 
 i»iven to 
 
 585. In all appeals, either to the Court of Appeal or 
 
 £fiV6Il to i A ' ^ .^ X , . 
 
 Hieh Court the High Court or a Judge, and on all motions to set aside 
 f urTiier evi- or Vary verdicts or judgments or hearings in the nature of 
 appeli"""^??^^^^' *^*6 Court or Judge appealed to shall have all the 
 
 etc, 
 
EVIDENCE BY COMMISSION. 
 
 647 
 
 'iting or 
 lable to 
 f Judge, 
 adjourn 
 require. 
 
 ving the 
 for any 
 directed 
 may be 
 nces as 
 K. S. 0. 
 
 ce to the 
 )ther pro- 
 inand and 
 leading or 
 ed by the 
 e copy so 
 auses and 
 > the same 
 
 V. 
 
 of money 
 
 atp 
 
 I, . 
 
 • '.' 
 
 of tl' 
 
 '■;A 
 
 0. 257. 
 
 agi'ut, or like 
 icicut; '.'<'»f 
 state that the 
 utfd : t'"rrf 
 f, but must be 
 
 tiuiri'd on '^^, 
 e certificate of 
 
 Appeal or 
 ,0 set aside 
 B nature of 
 ave all the 
 
 powers and duties as to amendment and otherwise of thd ^^^ ''**• 
 Court, Judge or officer appealed from, together with full 
 discretionary power to receive further evidence upon ques- 
 tions of fact ; such evidence to be either by oral examina- 
 tion before the Court or Judge appealed to, or by affidavit, 
 or by depositions taken before a special examiner or Com- 
 missioner. 
 
 Semhlr, that tins Rule does not apply to newly discovered evidence after the 
 trial : Bank of B. N. A. v. Western Assurance Co., 11 P. R. 434. 
 
 (2) Such further evidence may be given without special 
 leave upon interlocutory applications, or in any case as to 
 matters which have occurred after the date of the decision 
 from which the appeal is brought. 
 
 ^vi' Sunders v. Sunders, 45 L. T. N. S. 037; .51 L. J. Chv. 276; 18 C. L. J. 
 23(J; /!'■ I'limpton, Norton \. Compton, 27 Ch. D. 392; Rubinmn v. Brculsliaw, 
 32 W. K. It.-). 
 
 (3) Upon appeals from a judgment upon the merits at 
 the trial or hearing of any action or matter, such further 
 evidence (save as aforesaid) shall be admitted on special 
 grounds only, and not without the special leave of the 
 Court. 41 V. c. 8, s. 7. R. S. 0. 1877, c. 38, s. 22. 
 
 See .ilso notes to Rule 840, .and lie Rouse, .TO L. T. N. S. 887. 
 
 For remarks as to the caution to be observed in giving leave to adduce 
 furthtT evidence in the Ai)pellate Courts : see Merchants Bank v. Lucas, 12 
 P. R. 520, and Arnixon v. Snii/h, 41 Ch. D. 08; and the reni.arks of Cotton, 
 L.J., airainst allowinj? fresii evidence to meet defects in the case .seen after 
 tri.1,1 : Er Lronanl <0 Elli.i Trade Mark, 2(j Ch. D. 28<). Where further evidence 
 IS allowed to be adduced, the opposite party has the right to cross-examine 
 thiireon : Spencer v. Ancoals V. R. Co. 84 L. 1\ Jour. 440. 
 
 (iv) Commissions to examine Witnesses. 
 
 5S«. In case a party to any civil action is resident out Non-resi- 
 of Ontario, and in case the opposite party requires a com- ' °° ^"'^ ^' 
 mission to examine such non-resident party and states by 
 affidavit the facts intended to be proved before such com- 
 mission, and in case the Court or Judge is satisfied that such 
 commission is applied for in good faith and not for purposes 
 of delay the Court in which the action has been brought, or 
 any Judge thereof may, at the instance of the opposite 
 party, issue a commission for the examination of such non- 
 resident party in the same manner as a commission may 
 be issued for the examination of witnesses. E. S. 0. 1877, 
 c. 62, 8. 19. 
 
 This Rule provides only for the case of the examination of an opposite party : 
 "Po notes to Rule .588. 
 
IB 
 
 648 MISCELLANEOUS PROCEEDINGS. 
 
 587^588 5S''» If such party refuses to attend before the Coramis- 
 RefuBaito sioners, such refusal, being proved by afHdavit or otherwise 
 attend. to the satisfaction of a Judge of the Court in which the 
 action or the trial is pending, shall authorize a verdict or 
 judgment to pass against the party, or he shall be non- 
 suited. E. S. 0. 1877, c. 62, s. 20. 
 
 See also Jiulc ii(i2. 
 
 Aged or^ in- HHH, In casc the plaintiff or defendant in any action in 
 sons within the High Court or in any County Court, is desirous of 
 Ontario, j^aving at the trial thereof the testimony of any aged or 
 infirm person resident within Ontario, or of any person who 
 is about to withdraw therefrom, or who is residing without 
 the limits thereof, the Court in which the action is 
 pending, or a Judge thereof, may, upon the motion of such 
 plaintiff or defendant, and upon hearing the parties order 
 the issue of a commission or commissions under the sea! of 
 the Court in which the action is pending, to a Commissioner 
 or Commissioners, to take the examination of such person 
 or persons respectively. li. S. 0. 1877, c. 62, s. 21. 
 
 This li.le provides fcr the issue of a commission for the e.xamimition of a 
 witness, dc bene cskc. The examination is more usuallj' had by order under 
 Rule 5GG. See notes to that Bi'/e. 
 
 Foreign There is no hard and f.ast rule as to granting or reftising a foreign cmnmission. 
 
 commis- It is a matter of judicial discretion: J/i7/.s- v. Milln, 12 P. R. 473; Cnchv. 
 
 sion. Allcock, 21 Q. B. D. 1, 178; see also Itc Ivipcrial Land Co. of MarxciUix, W. N, 
 
 1877, 23G; 37 L. T. N. S. .OSS ; an .aer was refused where it would cause delay, 
 and the applicant had been dilatory in trying to obtain it : Sttuart v. (llndstmw, 
 7 Ch. D. 394 ; Temperance Colonization i^vcii. v. Evans, 7 C. L. T. 40. So, where 
 the Court was not satisfied on the materials adduced, that the evidpiice wa.s 
 material : Lane/en v. Tate, 24 Ch. D. 522 ; !Smith v. (Jreey, 10 1\ R. 531 ; and 
 where there was another action jiending in the foreign country for the same 
 cause : Mair v. Andermn, 11 U. C. t^. B. KiO. 
 
 In Grant v. Banquc Franco-Egyptienne, referred to in 27 W. R. p. 220, Brett, 
 L.J., said : "I apprehend that the granting of a commission is a matter of 
 discretion, and that the grounds u\nm which a commission is granted or refused 
 is always a matter of comparison, namely, whether it is more convenient that 
 the commission should go, than that witnesses should be examined befiire the 
 tribunal here, and the e.vercise of that discretion dejjends n\ Jii the circum- 
 stances of each particular case." See the remarks of the same Judge in Coch 
 V. Allcock, 21 (2. B. D. 181. 
 
 Where the persoTi to be examined abroad is tlie party himself who asks for 
 the commission, the Court will be more circumspect as to making an order 
 than in the case of an ordinary witness : Mills v. Mills, 12 P. R. 473 ; Light v, 
 Anticosti, 58 L. T. N. S. 25. 
 
 Terms as to reading the depositions at the trial were imposed where the 
 plaintiff applied to examine himself by commission : Nadin v. llituMtt, 25 
 Ch. D. 21 ; and as to security for costs in Hheppard v. Daihiac, 80 L. T. 
 Jour. 26. 
 
 In Re Boi/se, Crofton v. Crofton, 20 Ch. D. 760, it was held that uiion an 
 application for a commission to take evidence abroad, the Court ought to be 
 satisfied that the application is made bond fide. Where the Court thought the 
 witness should be subjected to a strict cross-examination on part of a claim ni. 
 

 COMMISSIONS TO EXAMINE WITNESSES. 
 
 K4lt 
 
 which lie was interested, and the French practice was to have the examination Rule 588. 
 
 tnkf place througli the Judge only, a cf)niuiis«i()n was refused : see also Bcrdan 
 
 V. <ln I'll wind. 4(> L. T. N. S. r)24 ; 20 G'h. D. 7<>4 (note), where the case turned 
 
 on the fact that the jjerson to be examined was the plaintiff hiimself, and the 
 
 Court was n<! satisfied he could not attend so as to be cross-examined vivd voce, 
 
 Imt, on the contrary, was keeping out of the way : see Liinijcn v. Tate, 24 
 
 Ch. D. 522 ; Sinllcr v". I'nriif Skathui Rink Co., W. N. 1H7«, 228 ; 27 W. R. 225 ; 
 
 (Imiit V. liiiiuiiu' Fraiico-Ei/iijitii'tine, mipra ; and ThomuK v. /store;/, and 
 
 Liiirmii V. Viieunm Brake Co., 27 Ch. D. 137, as exi)lained in Coch v. Allcock, 
 
 2Ui. B. D. 1, 17«. 
 
 In the absence of sjiecial circmnstances making it desirable that the plaintifif 
 should face the Court or jury in ))erson, there is no reason why his evidence 
 Hliould not be taken by conunissiou where he is residing abroad : Arvwury. 
 Wutkir,'i'i Ch. 1). (»73"; Biinqur Frunco-Eiiyptieime v. LiitHcher, 28 W. R. 133; 
 41 L. T. N. S. 4(18 ; W. N. 187!>, 183; Coch v. Allcock, 21 (.1 B. D. 1, 178 ; see 
 Prief V. Ihiileii, ti V. R. 2r)(l. A connnission may issue to examine a witness 
 notwithstanding that his character for veracity is impeached. The proper 
 course in such a case is to call witnesses at the trial for that jmrpose : Nord- 
 heimir v. MrKil/oi,, 10 V. R. 240. 
 
 .\ ciiuiniission to examine as a witness a nerson who has absconded from the 
 Provinc'i', will not be reftised on the ground tiiat he is alleged not to Ix* a credible 
 witness, and that his cross-examination in open Court is desired : Nordhciiner 
 V. MrKill'ip, 10 P. R. 24ti. 
 
 The fact that th(! witness was a co-defendant v.-ith the iiarty applying was 
 oiiiisiclereil no obstficle to the granting of a commission : Wilnon v. McDonald, 
 1.3 P. K. (>. 
 
 In Till- M. Mni-lniiii, 1 P. ]). llo, a commission to take evidence in Spain as Expert 
 to the law of Si)ain, was refuseil, as it was not slujwn that competent Spanish evidence. 
 advocates could not attend the trial without difficulty, and in the opinion of 
 tliB'ludgeit would, \inder the circumstances, be more satisfactory to have the 
 witnesses I'xamiued in Court. See also Jliix.irll v. 6'. 11'. R. Co., 3 U. C', L. J. 
 IKi, and Attii.-'ien. v. (initderhniii, 10 P. R. 2r)lt, where the object was merely 
 to obtain scientific, or expert testimony. 
 
 A iuf)tion for a commission is usually to be made after issue joined : Smith v. When 
 (Itmii, 10 P. R. 531 ; b\it it is not essential hat the action be technically at issue, motion to 
 The motion may be made whenever it can * shown that some issue is raised on ^^ made. 
 tlie pleadings which must be tried in the ao, ion : Smith v. (ireeij, 11 P. R. 38. 
 
 The form of order is given in the App. No. 138, and the form of a commission Order. 
 Xo. lis. 
 
 Books ami documents produced in an action may be sent out of the jurisdic- 
 tion for the purpose of examining witnesses on a ft)reign commission ; but docu- 
 ments prodticed in another action which is sub jiulice will not be sent away : 
 (•/«(■/,■( V. rniiiii, (CJni/)iit\s Case), 10 P. R. 413. 
 
 Where the apiilication is to examine a witness who is travelling, it should be 
 ^^llewn that; he will remain at the place to which the commission is directed, a 
 sufficient time to allow of its due execution : Siif/er v. Williams Manufacturing 
 (O..HP. R483. 
 
 A connnission issues only pursuant to the order. Where, therefore, an order 
 providerl for examination of one witness M. rird voce, and others upon interro- 
 gatories, it was held that the commission could not issue to examine M. only, 
 without amending the order : Smith v. /Ju/^cvwX', 8 P. R. 175. 
 
 An objection to a witness affinning instead of taking an oath, on a commis- 
 sion, ought to be taken at the time of his appearing before the commissioner: 
 Hh-kirih V. lloirjh, 30 W. R. (i7(> ; 51 L. J. Q. B. 301. 
 
 See l)iiiiiii,i V. Durlinci, 8 P. R. 3!tl. for irregularities which were held not 
 to invalidate the proceedings under a commission. 
 
 Where a witness previously examined by commission stated that lie had 
 mrtlier evidence to give, to explain or correct his former evidence, a r'^-e.xamip- 
 ation was allowed under a new commission. The witness in such a case should 
 
^m 
 
 !^ m 
 
 "^ 
 
 
 • Rl « 
 
 fffiO 
 
 Rulea 
 B89-M2. 
 
 Return. 
 
 Opening;, 
 
 Notice of 
 comiiiis- 
 Bion. 
 
 Commis- 
 sion H on 
 Master's 
 certiUcate. 
 
 Foreign 
 commiB- 
 aion not 
 issued of 
 course. 
 
 Notice of 
 motion. 
 
 Commis- 
 sion to 
 whom 
 directed. 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 l)<! conHidertKl tlio witness of the jiarty apjilyinf? to re-examine him ; lioiiri:t \ 
 Ma, I, I i III/, «r. R. 2. 
 
 Where the time for the return of a commission was extended to a certain dav 
 and on tiiat day tlu^ witiie.sHes were exainin"d, it was held, that, having liecii 
 executed within the time, tiie necessary dehiy oecusioned by its triinsniis»ii)ii 
 did not render it irrejfuhir ; Ihiitimi v. /><(iliiii/, \) V. K. odO. 
 
 Commissions after their return siio\ild only ht- opened on notice to all jiartics 
 interested. 
 
 The Co\irt in iiermittiiij,' a foreign commission to be ojieiied before the tiiiii, 
 will not imoose restrictions as to the use to be made of the kiiowledp' nf the 
 evidence wliich would be acquired by the solicitors by such opening' : ,'<milli v. 
 Oreei/, 11 P. R. 238. 
 
 5MO. Due notice of every such commission shai) be 
 given to the adverse party, to the end that he may cause 
 the witnesses to be cross-examined, li. S. 0. 1877, c. 62. 
 s. 22. 
 
 mm. Foreign commissions for the examination of wit- 
 nesses without the jurisdiction of tlie Court, in proceedings 
 before a Master, may, on the certificate of the Master, be 
 issued upon pni'cipe. Chy. 0. 221. 
 
 The Master may direct witnesses to be examined befoi'c any other .Master. <ir 
 E.xaminer, of the Court, without tlie consent of tlie jiarties : Jtc Ciikhi, JliiliUII 
 V. Camii, 1 Cliy. Ch. li»8. 
 
 The Master cannot grant a certificates for a commission r.r parte : MrLnmiv. 
 V. H(l[i.i, 3 Chy. Ch. 1!)3 ; excei)t where the reference is i.r /inrti . A coiniiiissidii 
 to take evidence is not granted as of course: J'rlcr v. Baihii, (i I'. H. i'lti; 
 Henlan v. (traiiicooil, 4(1 L. T. N. S. 524, note a ; Vivian v. Mitchdl, 13 ('. L. .1. 
 198; R( Bdi/kc, Cro/tun v. Croftun, 4(1 L. T. X. S. .'")22; and otluT cases cited 
 in note to Rule .OSS, gupra, and see as to proceedings under a conmiissidii. 
 Rulix 501 (t srq. 
 
 Where an ajiplication is made to the Master for a conmiission to cross- 
 examine a plaintiff resident abroad, on an affidavit filed by him in support of 
 his account, the Master cannot proi)erly refuse it, so long as the plaintiff relie." 
 on the affidavit in su|)j)ort of his claim: Toinievil v. Hnntcr, 3 C. L. 'I". 310. 
 
 The Master's certificate f (— a conimissicm should, mnttitix mutaiuli.^y follow, 
 as nearly as may be, the fon.; of order as given in the Ajipendix. Sec Fonn 
 No. 138. 
 
 fltll. Upon an application for a commission to take 
 evidence the applicant is in the notice of motion to state 
 the name of the commissioner to whom he desires the 
 commission to be issued ; and where the opposite party 
 desires to name another commissioner, he is, on the return 
 of the motion, to give notice to the applicant of the name 
 of any other commissioner. J. A. Rule 286. 
 
 593. Upon the hearing of the motion the Court or 
 Judge (or officer before whom the motion is made) may 
 order the issue of the commission directed to the persons 
 so named or to such other person or persons as may seem 
 proper. J. A. Eule 287. 
 
COMMISSIONS TO EXAMINE WITNESSES. 
 
 551 
 
 59;i. The order or certificate for the kM\e of ^'Com-*^*' 
 mission is to state the name of the commifssifner to whom panicuiarH 
 it is to be directed, and whether the examinr.ti jn of witnesses to ''^b**'^'' 
 tlierounder is to be taken upon oral questions or upon writ- 
 ten interrogatories, and also whether or not notice of the 
 execution thereof is to be given to the oj)po8ite party ; and in 
 case notice is to be so given, then the name and the address 
 of the person on whom such notice is to be served are to be 
 Btatec' in the order. .J. A. Kule 288. 
 
 Cimiiuissioiis may nroviiU- for the fxaminatioii of uiiiiaiiicd iM'rsoiis at a 
 .Vniliii V. lianset, 25 Cli. D. 21; Aniiniir v. 
 
 particular place 
 070. 
 
 \V'i/hrr2r> Ch. D. 
 
 504. The examination of witnesses under a commission Mode of ex- 
 
 , .,, ,, •,, • , , • amination. 
 
 IB to be taken either orally or upon written interrogatories, 
 or partly in one way and partly in the other, as the Court 
 or a Judge may direct. All oral questions shall be reduced 
 into writing and with the answers thereto returned with 
 the commission. See J. A. Kule 289. 
 
 Tlicrt' was foniicrly no jurisdiction to ordrr the examination to l)e wholly oral 
 unless all parties cjoiisented, as original Jtiilr 2H!> so provided. That Kn/r lia.s, 
 hiiwcver, l)teiianiende<l hy the present A'c/runder which and Rn/iCM, thclnd^fe 
 (irotticer niikiii},' the order will he ahle to provi<le whatever may he |)roper in 
 this respect. See Wtilstm v. Meltiiitalil, 8 P. li. 35J, nnder the old practice, 
 and Taylor on Evidence, 451. 
 
 Costs. - As to the costs of commission, see iJomiainn, rtc. v. Stinxoii, !l P. K. 
 177, in note to ii(//('1214. 
 
 Examina- 
 tion on 
 written 
 interroga- 
 tories. 
 
 505. Where the examination is to take place upon 
 written interrogatories, the interrogatories in chief are to 
 be delivered to the opposite party (unless otherwise ordered) 
 at least 8 days before the issue of the commission; and the 
 cross-interrogatories are to be delivered to the opposite 
 party (unless otherwise ordered) within 4 days after the 
 receipt of the interrogatories in chief ; and in default of 
 cross-interrogatories being so delivered, the opposite party 
 may send the commission without cross-interrogatories. 
 J. A. Rule 290. 
 
 The rules of evidence a.s to leading questions at a trial cannot be strictly 
 applied to interrogatories afhninistered under a foreign commission in the 
 Master's otfict! : Lockicood v. Bin; 10 P. R. (S55. 
 
 It is not pro|)er to ai)ply to strike out interrogatories for imi^ertinence, the 
 proper coiu'se is for the witness to demur to the iiripertinent questions : 
 WiUiams v. ('orhji, 8 P. R. 83 ; see Lockwood v. Bew, 10 P. R. G55, and Swabcy 
 V. Doxey, 55 L. .1. Chy. 631. 
 
 500. An examination may be executed ex parte, unless Examina- 
 the opposite party shall, upon the hearing of the applica- pane? 
 tion for the order or Master's certificate for the issue of the 
 
firfl 
 
 ™| 
 
 562 
 
 Rules 
 r»7-600. 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 '^ 
 
 
 commission, require notice of the execution of the coramis- 
 sion, and give the name and place of abode of some person 
 resident within two miles of the place where the commission 
 is to he executed, upon whom notice may be served. J. A. 
 Rule 291. 
 
 By the word "examination," "connnission" Ih urobably intended. 
 
 exeeuuon 5tt7. "Where notice of the execution of the commission 
 of comniiB- is required to be served, 48 hours' notice shall besunicient; 
 *°"' such notice is to be in writing, stating the time and place of 
 the intended examination, and is to be addressed to the person 
 named for that purpose in the order or certilicate for the 
 issue of the commission; and service upon him, or upon a 
 grown up person, at the address stated in the order or 
 Master's certificate, shall be sufficient. If the name or 
 address stated in such order or certificate shall prove to be 
 illusory or fictitious, or if the party so notified fails to 
 attend, pursuant to the notice, the commission may be 
 executed t'j;;;«rfe. J. A. Kule 202. 
 
 conieHfts 50A* In the event of any witness on his examination, 
 
 evidence. ... *'.,. ,. ,. 
 
 cross-examuiation or re-exammation, producmg any book, 
 document, letter, paper or writing, and refusing for good 
 cause to be stated in his deposition, to part with the origi- 
 nal thereof, then a copy thereof, or extract therefrom, 
 certified by the commissioners or commissioner present to 
 be a true and correct copy or extract, shall be aimexed to 
 the witness' deposition. J. A. Ilule 293. 
 
 Oath of 
 witness. 
 
 59S^« Every witness to be examined under the commis- 
 sion shall be examined on oath, affirmation, or otherwise 
 in accordance with his religion, by or before the said com- 
 missioners or commissioner. J. A. Rule 294. 
 
 See Rule 588 note. 
 
 Examiua- 600. If any one or more of the witnesses do not nnder- 
 througii an staud the English language (the interrogatories, cross- 
 interpre- interrogatories, and viva voce questions, as the case may be, 
 being previously translated into the language with which, 
 he or they is or are conversant), then the examination 
 shall be taken in English through the medium of an inter- 
 preter or interpreters, to be nominated by the commis- 
 sioners or commissioner, and to be previously sworn 
 according to his or their several religions by or before the 
 
COMMISSIONS TO EXAMINE WITNK8SES. 
 
 553 
 
 saiil commissioners or commissioner truly to interpret the Rules 
 questions to be put to the witness or witnesses, and his and "*^' ^^ 
 their answers thereto. J. A. Rule 295. 
 
 m 
 
 DopOHl- 
 tiollH to l)« 
 
 Uutiinidf 
 cdiiimia- 
 Hioii iind 
 iiso thereof 
 a,^ evi- 
 lUuice. 
 
 001> The depositions to be taken under and by virtue 
 of the said commission shall l)e subscribed by the witness 
 or witnesses, and by the commissioners or commissioner 
 who shall have taken such depositions. J. A. Rule 296. 
 
 002. The interrogatories, cross-mterrogatories, and 
 depositions together with any documents referred to therein, 
 or certified copies thereof or extracts therefrom, shall be 
 sent to the Judge or ofticer on or before such day as may 
 be ordered in tliat behalf, enclosed in a cover under the 
 seal or seals of the said commissioners or commissioner, and 
 office copies thereof may be given in evidence, on the trial of 
 the action, by and on behalf of the said parties respectively, 
 saving all just exceptions, without any other proof of the 
 absence, from this country, of the witness or witnesses 
 therein named, than an affidavit of the solicitor or agent 
 of the party as to his belief of such absence. J. A. 
 Rule 207. 
 
 0O3. Where, upon the application for a commission to fVties 
 take evidence, the opposite party desires to join in theiomiuB-" 
 commission and examine witnesses on his own behalf '''°"" 
 thereunder, or names a commissioner, each party is to pay 
 the cost of the commission consequent upon the examina- 
 tion of his witnesses and the appointment of his com- 
 missioner, without prejudice to the question by whom such 
 costs are ultimately to be borne ; and if for any reason the 
 commissioner named by either party refuses to act in the 
 execution of the commission upon receiving 48 hours' notice 
 in writing from the other of them so to do, the commission 
 may be executed by the commissioner 
 alone. J. A. Rule 298. 
 
 
 giving such notice 
 
 004. Every order for a commission shall be read as if order for 
 it contained the above particulars, and shall not set forth siou to be 
 the same, but may contain any variations therefrom, andcUuUuB'"' 
 any other directions, which the" Court or Judge shall see fit ^/^"^'^^i^''- 
 to make. J. A. Rule 300. 
 
 See noti' to /fi(/t r)!t4. • ' 
 
554 
 
 Rule 609. 
 
 Form of 
 affldavitH. 
 
 Stylo of 
 cause in 
 afflilavitB. 
 
 Krroiioous 
 ly entitled 
 may be re- 
 sworn. 
 Aftidavits 
 by parties 
 to the 
 «auRe. 
 
 Affldav.iH 
 
 received, 
 
 though 
 
 irrfl^^ularly 
 
 drawn. 
 
 AfHdavits 
 
 sworn 
 
 abroad. 
 
 AffldavitB 
 before 
 wliom to 
 be sworn. 
 
 Commis- 
 sioner 
 should not 
 take volun 
 tary afflda 
 vits. 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 (v.) Affidavits. 
 
 605. Every affidavit shall be drawn up in the first 
 person, stating the name of the deponent at the commenct- 
 rnent in full, and his description and true place of abode, 
 and shall be signed bv him. J. A. Rules 464, 465 ; Cliy. 0. 
 258. 
 
 See Eng. Rs. of 1S8I) 12 aiul 13 (188.% Rs. 527, 528). 
 
 An iiffidavit slioiild hi' entitled in the cau.se or matter in which it is tol* 
 used. The .shortened .style of "A. H. and otliers, ))laintiffs, and C. I), .imi 
 other.s, defeniiants," may lie used : Ruir 4.51 ; Dirkii/ v. /Itron, 2 Cliy. Ch. 
 4!(0 ; but not " lirown i: .lones.'' An affidavit .styled in the H. C. .F., hut not 
 in tile i)r()i)i'r Division is a.iiendahle : Jitihcrtxon v. ('(iiilton, !( P. R. Hi ; an affi- 
 davit by a i>ers(,n who was a stockbroker was iield not to state his descriirtion 
 and true i)lace of abode, bv describing iiini as a " stock e.vchange sttKiklnokcr" : 
 AV Lent, Lrrin v Lrrin, (id L. T. N. S. 317 ; 37 W. R. 2!l(i. 
 
 Affidavits erroneously (entitled have been allowed to be taken off tlie files, 
 ' and ri-svvorn without a fre.sh stamp : I'miwdi v. ]Vilco.r., 10 Ha. a])|). x.xxv. ; 
 Hawes V. liumfunl, 9 Sim. (i53. 
 
 In affidavits made by parties to tht cause it was sufficient in K(niity to 
 describe the deponent as tlie above-mentioned plaintiff, or defemlant, 
 without specifying any residence, or other addition : Crockett v. Jii.ihton. 2 
 -Madd. 44(J ; Jtni/cru v. ('roiikulndik, 4 ('. L. .1. 4.5. And the same rule prevailed 
 at Common Law: Pmi/r v. I'niil/io/, 1 Dowl. P. C. (I'.tS; Brooks v. F<irlm\!S 
 Dowl. P. C. 3()1; Li/mrui v. Jinthnm, 2 C, L. Ch. 108; Eiri:i;i v. L>ckkart/i 
 V. y'. <^. B. 248. Rut affidavits in which the ])laintiff \u a divorce |)r(K.'ee(ling 
 gave no address or an illusory one, wen^ rejected by the Court, and tlie case 
 disposerl of on the defendant's affidavits : Hi/i/c v. Ifmlr, 50 L. T. \. S. 523. 
 An affidavit as to the, fitness of a i)roposed trustee which the deponent w,^s 
 described as a "gentleman," was held insufficient : lit Ordc, 24 Cli. I). 271; 
 Ri HoricooiL 55 L. T. N. S. 373. 
 
 The Court has sometimes received affidavits sworn abroad, altliongli drawn 
 in the third person : lie Hiinliiiiul, 12 L. T. N. S. 303; and .see llri/dm v. Frast, 
 
 8 iSim. 380. And an affidavit without the signature of tile dei)oiieiit wa.s 
 receivefl : Rr Howard, L. R. C. P. 347 ; but see contra, Aiulcmon v. Sluthfr, 
 
 9 Jiir. 1085. 
 
 Where the initial only of the de|MHient"s .second Christian name was given the 
 affidavit was held to be regular : Ik Forrcxl v. Hunndl, 15 \] . C. <i. B. 37<l. 
 
 An affidavit omitting the words "make oath" will Ims rejected: AUci> v. 
 Taijlor, 10 E.\. 52; Phillipx v. Pnnticc, 2 Ha. 542 ; Re Newton, 2 D. F. & J. 3. 
 
 Affidavits may be sworn in Ontario before coiimissioners appointed under 
 R. S. O. c. ((2, or before a notary public of Ontario : see R. S. O. c. l.")3, s. 3. 
 
 Affidavits sworn out of Ontario may be sworn before :iny of tlie i>er.soii!< 
 enumerated in R. S. O. c. til, s. 34. Affidavit;; sworn bf lore any other pensim 
 than tiiose mentioned in that statute canncjt be read : McEivan v. linuUon, 3 
 V,\\y. Ch. (i3. 
 
 Affidavits sworn before the solicitor, or !)artner, or managing clerk, or agent, 
 of the solicitor, of the party on whose Indialf the affidavit is filed, cannot 1h' 
 n-ad : Dunn v. McLean, i C. L. .1. 212; ti P. R. 95; Duke of Nm-thimkr- 
 land v. Todd. 7 Ch. 1). 777 ; and see Ride (il3. But this rule does not apply to 
 the jiartner of a counsel engaged in the cause, but not otherwise connected 
 therewith : Wilde v. Crow, 10 C. P. 40(1 ; nor to affidavits to hold to bail : Rul' 
 (il3. 
 
 A commi.ssioner ought not to take affidavits not made in any cause, nor 
 autliori/.eil by statute to be taken by him. Such oaths are voluntary : Jnckfo" 
 V. Kax.'e!, 2(i V. C. (^ B. .S41 ; Meltnoi v. Hall, 25 U. C. C^ B. 303; awl see 
 R. S. C. c. 141. 
 
,- ■■''■%:^''. ;:■<■): f.:'v'W 
 
 AFFIDAVITS. 
 
 555. 
 
 Fiiihcr V. 
 Green. 
 
 Superla- 
 tive, and 
 iieertlessly 
 offensive 
 expressions, 
 not to be 
 used iu 
 iiffidavitB. 
 
 The officer taking the affidavit should add after his signature the name of liis Rules 
 office. The words "A Coiiiniissioner, e*c.," or "A Commissioner,'' or " A 606-608. 
 Conir.," have been held sufficient : Hcvihrmn v. Hnrpvr, 2 U. C. Q. B. it? ; oilicer 
 Brmvn \. Pun; 2 U. C. ^l ]i. !I8 ; Mnriihii v. liomton, 3 U. C. Q. K. 177 ; should add 
 Puwsm V. Hall, 1 P. R. 2!t4 ; liirtt v. Smith, ih., 8<»i). But the signature alone his name of 
 has been held sufficient : B<ihc<,ck v. Bedford, H C. P. r)27. " Sworn before, etc.," o^ce. 
 (iniittiiig "me," was iield sufficient : Martin v. McCliaiim, 25 V. C. (I. B. 271) ; 
 iuul .see Iu PorreM v. HiinncU, 1,"> IT. C. il B. 370. 
 
 The iuldition of a dejKment is only descrii)tive and not an allegation of fact : 
 Htmd V. Cranhrite, 4 P. K. 27'.>. Tlie usual form of oath "you sueja- tlmt the 
 contents of this affidavit are true," however, would seem tf) i)ledge the d(|)(ment 
 t(i tlie truth of tlu^ addition, as well as of the matters formally deposed to. 
 
 In flniwint;' affidavits, tlie following observations of Wilson, .T., in Finhcr v. 
 ili-ein, 2 C L. .1. N. S. 1(!, may be useful to tlie student : " I regret to find, in 
 several instances \i,tely, that superlative words are used in stating facts in affi- 
 davits. There can ))i' no stronger expression of the very truth than that it is 
 stated on oath. If less certainty is intended, the statement .should be (lualified. 
 The terms to which I object are, '/ must /i(i!<itir'/i/ .luriir,' etc. lean only show 
 my (lisapju'oval of such language, by refusing to allow costs to lie taxed for affi- 
 davits drawn in this style, when costs are in my discretiim. In one of the 
 affid'-.vits before iik^ I observe the i'X])ressioii, tliat the statement made liy 
 another i)ers()n in another affidavit was 'false.' I suppose the affidavit was 
 drawn liy a yoiuig man of little experience, for tlu^ one had detailed a tran- 
 saction in onelight, and the other had stati^d the same transactiim in another 
 light, Init tlu^ term 'false,' as apjilied by one to the other, could in no way 
 verify the stateni(nit of him who used the offensive expression," and seeZJfnvV/- 
 .«)(( \'. (irmi'ie, .-) 1'. K. 258. 
 
 .\ solicitor introducing impertinent and irrelevant matter into his affidavit 
 may Iw ordered to pay tile costs of the anplicatitm in which it is used : Anon, 
 4 P. K. 212; and see ('orhii v. Mahhin, 5 U. C. L. .T. 225. 
 
 Where affidavits were badly written, scarcely legible and difficult to 
 decipher, tlie Court refused all costscoi ted with their prei)aration, although 
 costs of the suit were given : Bnrnhdm v. (.<tu-ceij, 27 (Jr. 80. 
 
 006. In every affidavit made by two or more deponents .\fladavits: 
 the names of the several persons makinj:? the affidav'it shall 't"!^Mu''^ 
 be inserted in the jurat, except that if the affidavit of all the|;j,^J"^,fj|; 
 deponents is taken at one time by the same officer, it shall 
 be sufficient to st.ite that it was sworn by both (or all) of the 
 "above-named " deponents. J. A. Rule 466. 
 
 Identical with tlu^ Kiig. K. 14th of April, 1880, (1883, R. .529). 
 
 607. The jurat may be in the form or to the effect Jurat, 
 following : 
 
 Sworn before me at 
 
 on tht 
 
 day of 
 
 A.D. 
 
 , in the County of 
 
 Chy. 0. 258. 
 
 Where there are several deponents, their names are to be stated in the jurat 
 '.f/., 'sworn by the said A. B. and C. D. before me at, etc' : lUdc ;iO(i. 
 
 60N. There shall be appended to or indorsed upon every indorse- 
 affidavit a nole shewing on whose behalf it is filed. J. A. ""'"'• 
 Rule 467. 
 
 Taken from the Kng. R. 15tii of April, 1880. 
 
iir^ 
 
 656 
 
 Rules 
 609, 610. 
 
 Affidavits 
 
 how 
 
 framed. 
 
 Scandalous 
 affidavits. 
 
 Affidavits 
 by officers 
 for corpor- 
 ation. 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 ©09. Affidavits shall be confined to such facts as the 
 witness is able of his own knowledge to prove, except on 
 interlocutory motions, on which statements as to his belief, 
 with the grounds thereof, may be admitted. See J. A. Rule 
 284 ; Chy. 0. 259. 
 
 Identical witli Eng. R. 1875, O. 37, r. 3, (1883, R. .523). 
 
 Under Chy. Ord. 259, each statement in an affidavit to be used as evidence 
 on any nroceedinsc before the Court was required to show the deixment's 
 means of knowledge. This provision, however, is not embodied in these links. 
 
 Under this Rule the grounds of statements made on " belief " are required 
 to be stated, but not the means of knowledge for positive allegations ; see 
 /Udder V. llriduM, 2(i Ch. D. 1. 
 
 A statement by plaintifT'.s agent that he had the management of all id.aintiff'H 
 business in this country was held sufficient to show his means of knowing of the 
 |)laintiff 's ownership of certain i)roperty deposed to : AfcEwen v. limilUm, 2 
 Chy. Ch. 3!)!). 
 
 Where thede])onentsworethatto disclosehis meansof knowledgewoulddefeat 
 the ends of justice, the requirements of Chv. O. 25!t were dispensed with; 
 Aferc/utnl.i Exjiims Co. v. Morton, 15 (ir. 274;" 2 Chy. Ch., 319. 
 
 An affidavit in wliich tiie dejionent stated that he was credibly informed and 
 believed certain facts, without stating the name of his informant, or tlie I'round 
 of his belief, was held not to comply with this Ridi\ and was insufficient proof 
 of the facts deposed to : (illhert v. St Hen, 13 P. R. 121. 
 
 Evidence on informat'.on and belief, though generally admissible on inter- 
 locutory applications, is not admissible on a proceeding wliich, thougi) inter- 
 locutory in form, finally decides the rights of jjarties ; and the party against 
 whom it is adduced, is not bound to contradict it ; but if in the Court below 
 he deals with the evidence as admissible, he may be i)recluded from objecting 
 to it before the Court of Api)eal : O'illierf v. Kitdeax, 9 Ch. D. 259. 
 
 Notwithstanding this liulc, an affidavit by a nractitioner verifying a i)etition 
 was held to be sufficient, (under a Rule uncler the Companies' Act, which 
 required only an affidavit on belief as to the acts iiml deeds of other ijersons) 
 though some of the allegations in the affidavits were only as to the belief 
 of the jK'titioner, and although there are other affidavits in sujjport of 
 the i)etiti(m which show the sources of the petitioner's belief : Re New I'lilhin, 
 47 L. T. N. S. 175. 
 
 Costs of setting out the contents of written documents were disallowed in 
 Hirst V. I> meter, \y. N. 1882, 12. 
 
 Affidavits may be ordered to be taken off the files, if scandalous or irrelevant : 
 Sddleir V. Hinitk, 7 P. R. 409 ; 15 C. L. J. 52 ; O.iiiki.sIuii v. As.fnriulinti «f hmd 
 Finnneiers, W. N. 1878 101 ; Kerniek v. Keraiek, 12 \V. R. .335; (ImUiird \. 
 Pan; 3 \V. R. (>33 : or the scandalous matter mav be expimged : ll'c/Vicc v, 
 .1/o.s.t^.t, W. N. 1881, ()9 ; R^ Fite/i, 2 Cliy. Ch. 288 ; and see Ri'le 421 am! 
 note. 
 
 Costs of scandalous affidavits will be disallowed : Vcii.ttH'len v. Vdiistaikn, 
 10 P. R. 428. 
 
 GlO. Any affidavit in an action or proceeding to which 
 a municipal or other corporation is a party may be made 
 by any officer, servant, or agent of the corporation having 
 knowledge of the facts required to be deposed to, and he 
 shall state therein that he has such knowledge. J. A. Rule 
 595. 
 
mm 
 
 AFFIDAVITS. 
 
 65T 
 
 lisalldwed in 
 
 Oil. No affidavit having in the jurat or body thereof, ^^8" 
 any interlineation, alteration, or erasure shall without ^^j^^^^^j^^g^ - 
 leave of the Court or a Judge be read or made use of in in amda 
 any matter pending in Court unless the interlineation or ^' ^' 
 alteration (other than bv erasure) is authenticated by the ,' 
 
 initials of the officer taking the affidavit ; nor in the case of 
 an erasure, unless the words or figures appearing at the 
 time of taking the affidavit to be written on the erasure are 
 rewritten, and signed or initialed in the margin of the affi- 
 davit by the officer taking it. J. A. Rule 468. 
 
 Taken frcim the Eng. R. Kith of April, 1880, (1883, K. 532) wliicli contains 
 also siJt'cial jjiovision for tlu; case of an affidavit beiiiK taken at the " Central 
 office." 
 
 A line drawn through words thongli leaving them legiblt! is an erasin'e : 
 Wiltmms V. Clniojh, 1 A. & E. 37G. 
 
 Where an interlineation was uninitialed by the Conimi.'sioner, it was held 
 that inider tliis liiilr the affidavit could not be read, but leave was given to 
 retile it [irojierly swoni : Boi/d v. Mv.yutt, i( P. K. 493. 
 
 N'o alteration can properly be made in affidavit after it has been sworn ; 
 see W. X. 1882, Part 2, 81. 
 
 612. Where an affidavit is sworn by any person who Amiiavits 
 appears to the otHcer taking the affidavit to be illiterate, nue I'er- 
 tbe officer shall certify in the jurat that the affidavit was^""^- 
 read in his presence to the deponent, that the deponent 
 seemed perfectly to understand it, and that the deponent 
 
 made his or her signature in the presence of the officer. 
 No such affidavit shall be used in evidence in the absence 
 of this certificate, unless the Court or a Judge is otherwise 
 satisfied that the affidavit was read over to and apparently 
 perfectly understood by the deponent. J. A. Rule 469. 
 
 Identical witli the Eng. R. April 1880, R. 17, (1883 R. 533). 
 
 Where an affidavit of an illiterate jierson did not apjiear to have been read 
 over in the presence of the Commissioner, it was taken off the files ; lUeukharn 
 V. Lmgstaffe, 52 L. T. N. S. fi81 ; 54 L. J. Chy. 516. 
 
 613. No affidavit shall be read or made use of for any no affidavit 
 purpose, if sworn before the solicitor of the party in the befwe"^*"^" 
 cause on whose behalf the affidavit is made, or before the of'party. 
 clerk, or partner, of such solicitor ; but this Rule shall not 
 
 extend to affidavits to hold to bail. Rules T. T. 1856, 
 114. 
 
 See Eng. Rules 1883, R. 536, 637. 
 See notes to Ride 605. 
 
 ftl4. All affidavits and other papers required to besumpson 
 filed in any action or matter on motions and other * 
 
 
X- 
 
 ■558 
 
 Roles 
 415, 616, 
 
 
 Affidavits, 
 where filed 
 
 III 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 matters shall, before being used, be stamped with a 
 proper filing stamp, and at or before the time of using 
 them shall be filed in the proper office of the Division of 
 the High Court to which the action or matter is assigned. 
 See J. A. Eule 470 ; Chy. 0. 260. 
 
 See Eng. R. April 1880, R. 18, (1883 R. 535). 
 
 On motions liefore the Master in Chaniliei-s, the affidavits in supjiort of, or 
 opiX)8ition to, the motion, are reqiiired to be filed with the Cle»'k in Cliambers, 
 
 In actions in the Chancery Division the i)aj)erH filed in Cliambers, are trans- 
 mitted to tlie Clerk of Records and Writs, on the conclusion of the motion ; 
 Rule G15 ; in actions in the other Divisions the papers are retained by the Clerk 
 in Chaml)ers. 
 
 On motifnis before a .Tudge of the County Court, or Local Master, the affi- 
 davits in ■supiK)rt of, or ojjposition to, such motions, will have to In; tiled, in the 
 former case, with the L(x:al Registrar, or Deputy Clerk of the Crown, as the 
 case may be, and in the latter case, with the Master himself. 
 
 Chy. Ord. 30 required the Registrar to transmit all affidavits and papers 
 filed with him to the Clerk of Records and Writs. This j)rovision has not been 
 e.xpressh' continued in these Rules, but the practice is still maintained. 
 
 ft 1 5. Affidavits to be used on a motion in Cbambers 
 shall be filed with the Clerk in Chambers, who shall, in 
 cases in the Chancery Division, transmit them to the 
 Records and Writs office when the motion is disposed of. 
 See Chy. 0. 30. 
 
 uf^htJf"'' ttl6« All the affidavits upon which a notice of motion, 
 when to be or petition is founded, must be filed before the service of 
 the notice of motion or petition, Chy. 0. 261. 
 
 Chy. Ord. 201 provided that affidavits in answer must be filed not later than 
 the (lay liefore that ai)i)ointed for the hearing of the motion, or petition, 
 This provision, however, is not embodied in these Hides, and no time whatever 
 is prescribed for filing affidavits in answer, or reply. 
 
 Affidavits The affidavits and pajiers intended to be used in supjiort ot a motitm, must 
 in support be mentioned in the notice of motion : Farinh v. Marti/n, 1 Gr. 300, and when 
 to be iiieii- ji^g motion is intended to be supported bv affidavits filed previous to the date of 
 notice of *'!''' "otice of motion, the date of the filing oi such affidavits should be stutedin 
 the notice, or they cannot be used : Fi-ascr v. Fia»cr, 13 Gr. 183 ; McMarlm v. 
 Dartnell, 2 Chy. Ch. 322; Mackenzie v. Carter, 12 P. R. 544; documents 
 referred to in the affidavits filed in suptx)rt of a motion may be read without 
 special reference to them in the notice : Johnmn v. Axhbridijc, 2 Chy. Ch. 251. 
 If a party gives notice of reading an affidavit in supiwrt of a motion, but 
 declines to do .so, the opiiosite party may, nevertheless, read it : Clark v. Law, 
 2 K. & J. 28 ; CanUj v. Honlditeh, 14 Sim. 75, and may cross-e.xamiiie the 
 deixinent though tlie party filing it offers to withdraw It : I'lke v. liubinson, 
 W. N. 1873, 178. 
 
 Affidavits of service must be filed at latest before the rising of the Court on 
 the day on which the application is made : Mdtoivn v. Stuart, 8 Sim. 34 ; but see 
 contra, Secar v. U'cUt, 25 Ch. D. 84 ; 49 L. T. N. S. 94, where it was held that 
 they were filed in time, if filed at any time before the order was drawn up ; but 
 see Re Ruaier, Jones v. Bartholomew, 49 L. T. N. S. 442. 
 
 motion, 
 
ADMISSIONS. 
 
 559 
 
 (vi) Admissions. 
 
 Allies 
 
 617-619. 
 
 617. Either party may call upon the other party toNoUceto 
 admit any document, saving all just exceptions. J. A. Rule iiocumentB. 
 241. 
 
 Identical witli the first clause of Eng. R. 1875, O. 32, r. 2, (1883, R. 372). 
 
 This liitic extends to all docuineiits which a party ])roix)ses to adduce in 
 evideiicf and not merely those in his custody or control : Mutter v. Chapman, 8 
 M. & W. 388. 
 
 Aniongr the "just fvceptions " are the adnii.snibilty of the documents as 
 evidence : Phillips v. Harris, Car. & M. 492, and their legal effect: Hills v. 
 Limdoii (i((.i Lii/ht On., 1 F. & F. 34(i ; but '■ • • an objection to their recepti(m on 
 thegroinid of interlineation : Fireman v. !Stf<iiiall, 14 Q. B. 202. 
 
 Admissions between defejidants cannot be used as evidence against the 
 plaintitf : Dudds v. Tukc, 25 Ch. D. G17. 
 
 6l^i. A notice to admit documents may be in the Form Form of 
 No. 2G, in the Appendix. J. A. Kule 242. "°*'"^- 
 
 Same as Eng. R. 1875, O. 32, r. 3, (1883, R. 373). 
 
 A notice to admit must be givtui a reasonable time before trial ; Ti/nn v. 
 /W//h7.v/<7/, 3 Dowl. 810; f'«,v/ v. t'limhrrl-intl, } P. R. 140, and holds good 
 uix)n a subsequent trial : Day, C. L. P. Act, 3rd ed. 103 ; Wilsua v. Baird, 19 
 C. P. 1)8. 
 
 A notice to admit may be given, even where the document is not in the 
 ixjssession or under the control of the jiarty : llntti'r v. Chd/uiKin, 8 M. & W. 
 3HS ; Ciiiii/cr v. McKcrluiif, 1 C. L. Cliam. 220; including a foreign judgment : 
 Siitilh V. Ilird, 3 Dowl. 041 ; and dociunents, the validity of which is directly in 
 isnue; Spciici'i' v. Jiaraiti/h, 9 M. & W. 425. 
 
 For notices wliicli may be given to enal)le seconthiry evidence tf) be given of 
 wills, registered instruments, telegra]iliic mtwsages, letters, etc., see R. S. O. 
 c. (il, ss. 38, 43, 45, 40. 
 
 Sec. 44 of that Act does not enable a ^ irty to use as evidence a certified copy 
 of a registered ])rol)ate without the :iotice provided for by sec. 38: Barber v. 
 McKaJi, 17 Out. 502. 
 
 619. The production of any written admissions purport- Proof of 
 iijg to be admissions in the action, and to be made in pur- sionsf 
 suance of any notice to admit documents or otherwise, and 
 to be signed by the solicitor of the party by whom, or on 
 whose behalf, they purport to be made, shall be sufficient 
 prima facie evidence of such admissions. J. A. Eule 243. 
 
 Not similar to the Eng. R. 1875, 0. 32, r. 4, which was the same as The C. L. P. 
 .\ct, R. S. (). c. 50, sec. 173. The Eng. R. of 1883, extends to admissions of 
 fivcts, and requires an affidavit of the solicitor or his clerk as to tlie signature of 
 the admissions. The Chai.cery Practice in Ontario was to dispense with an 
 affidavit, and the i)resent Rule adopts that i)nictice. 
 
 The more fact that documents are admitted in admissions signed by the 
 solicitor, will not make them evidence unless put in at the trial : W'atsim v. 
 Rmtwell, 11 Ch. I). 150 ; and the admission of a copy does not entitle the plain- 
 tiff to put in the copy without first accounting for the original : I'^harpe v. 
 Z/iHiV, 11 A. & K, 805. The admission when made is conclusive : Laiujley v. 
 h. »J Oxford, 1 M. & W. .508. 
 
•WWMBHW 
 
 ■H^ 
 
 'Xr 
 
 560 
 
 Rule 620. 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 14. Transmission of Interest PEyoEUTE lite. 
 
 marriafje, 
 etc., or 
 death be- 
 tween ver 
 diet and 
 .judgment. 
 
 
 Abatement 
 and He- 
 vivor under 
 for'uer 
 practice. 
 
 
 ufabate "jy **2®» An action shall not become abated by reason of 
 reason of the marriage, death or bankruptcy of any of the parties, if 
 the cause of action survives or continues, and shall not 
 become defective by the assignment, creation, or devolution 
 of any estate or title jiendente lite. And whether the cause 
 of action survives or not, there shall be no abatement by 
 reason of the death of either party between the verdict or 
 finding of the issues of fact and the judgment, but judg- 
 ment may in such case be entered notwithstanding the 
 death. J. A. Rules 383, 601. 
 
 Tlie first clause i.s identical with Enj,'. R. IS?;"), (). .')(), r. 1. That uf 1883, 
 R. 17H, is the sanx" as this liit/t e.\cei)t that it is made ti) apiily to " a caii.se or 
 matter " inste.id of " an action" only. 
 
 The fonner Kng'. R. of ISTo was held to ai)i)ly to a petition : Jlf Atldns,]. 
 Ch. D. 82 ; but not to a charging' order : Fiiuir,, v. Jlintle, 4 C^. B. D. 102. 
 
 Both in the Common Law Courts and in the Court of Chancery, the old ami 
 inconvenient metluxls of making' ^oimI a suit wliich had hecoiiK; defective liy 
 reason of de.atli or otherwise wmv long since sujK'rseded bv simjile, iiiexjieiisive 
 inetluKls of procedure. But the procefiure was different in the several Courts 
 
 In the Common Law Courts of tiiis Province the ])ractice was governed by 
 R. S. O. 1877, c. 50, s. 228, rl sn/, I'nder these enactments the ])roce(Iiire varied 
 a little according to the nature of the defect which had occurred, and the stage 
 at which it tKjcurred. In the case of death, the olaintiff was enipowerwl to 
 enter a suggestion of the death, and proceed with the action in the name of or 
 against the pro; er parties ; and the truth of that suggestion miglit have been 
 traversed and trieii. If the plaintiiT omitted to enter tlie necessary suggestion, 
 the defendant might by summons require him to do .so, and in default might do 
 so himself. 
 
 In Chancery the matter was governed in thi.s I'rovince by tlie Cliy. Order* 
 numbered from 337 to 351. 
 
 The method of rt!vivor, .iccording to the Chancery procedure, has in substance 
 lieen adopted by these Bi'/e.s. 
 
 Under the old jiractice there were cases in which, though the cause of action 
 d(je8 not survive, proceedings having reached a certain stage might go on with- 
 out an alteration in the style of cause, e.</. , in the case of defendant's death 
 between the verdict and judgment : see Day, C. L. P. Act, 4th ed., 156. The 
 above Rule following in the last clause the Eng. R. of 1883 now provides for 
 such cases. 
 
 Under pre- There is nothing in the Rules on this subject to alter the existing law as to 
 sent Rules, what causes of action do and what do not survive ; thus where the cause of 
 action or the interest of the party is tenninated by death, etc., the action is at 
 an end : Twi/cross v. Gmnf, 4 C. P. D. 40; Kirk v. Todd, 21 Ch. D. 484; 
 Ashley v. Taylor, 10 Ch. 1). 708 ; 27 W. R. 228 ; liowker v. Evans, 15 C^. B. D. 
 .f)65 ; 53 L. T. N. S. 801. See notes to Ride ()22. Nor is there anything to preserve 
 to any person a right of action which by the ordinary rules of law ha-s passed 
 from him. Thus, on the bankruptcy of a plaintiff, wnere the right of action is 
 one which passes to the tr.istee, the action cannot be carried on by the bank- 
 rupt, but only by the trustee : JacLwii v. North-Eastern Ry. Co., 5 Ch. D. 844; 
 Warder v. ikiiinders, 10 Q. B. D. 114 ; see also Jimden v. Carte, 17 Ch. D. m 
 If, in such a case, there are two trustees, and one refuses to go on, the other 
 may do so, and make his co-trustee a defendant : Jackson v. yorth-Eastern Kij., 
 tupra. 
 
-s 
 
 TRANSMISSION OF INTEREST. 
 
 561 
 
 ITE. 
 
 reason of 
 parties, if 
 sliall not 
 levolution 
 the cause 
 ,ement by 
 verdict or 
 but ju.dg- 
 nding tl'e 
 
 rhat (if 1883, 
 o "a cause or 
 
 : 11, AlkiM,l 
 1. D. 102. 
 
 V, the old aiul 
 ■ defective i)y 
 le, iuexiieiisive 
 ieveral Courts 
 
 s governed by 
 ■ocedure varied 
 , and tlie stage 
 emiiovveretl to 
 :lie name of or 
 ight have been 
 iuy suggestion, 
 ifault might do 
 
 le Chv. Order' 
 
 ,as in siibstanci' 
 
 cause of action 
 gilt go on wth- 
 eudant's death 
 .ed.,156. The 
 uw provides for 
 
 isting law as to 
 
 ere the cause ot 
 
 the action is at 
 
 Jl Ch. D. 484; 
 
 uis, 15 il. B. D. 
 ;hing to preserve 
 
 law has passed 
 
 _ight of action IS 
 
 ju bv the bank- 
 
 ^ 5t)h.D.844; 
 
 .,'l7Ch.D.f 
 
 go on, the other 
 
 rth-Eastcn ifi/.i 
 
 If tlie triiKtec elects not to iiroceed, it is not oim'h t(» the plaintff to do so, and Rule 620. 
 if he does the action inav l)e staved on luotion or dismissed : Udiilci- v. Slnnll/el•.^<, 
 10 Q. H. I). 114. 
 
 Ff tlie trustee elects to proceed he becomes liable for all costs including those 
 already incurred : Jlunifnuiit v. W'ilnun, 28 Ch. D. .53 ; ]\'(it.s(iit v. Unllii/n//, 'JO 
 Cli. U.im. 
 
 Where, |pending an action, tiie jilaintitf assigned in bankruptcy but subse- 
 iiueiitly ol)tained a discharge, and a re-assignnient from the trustee, it was held 
 that tlie cause of jictioii continued, and the action iiad not abated by tlie bank- 
 ruptcy : liiiiLrr v. Jiilmsi.n, (iO L, T. N. S. (14. 
 
 in I'vlli-il Ti'li'iiliinii' Cii. V. lidsKUtiii. .SI Ch. D. (130, judgment was given 
 !i,'aiiist the defendants, who a|)pealed, but before the a])peal was heard liecaine 
 iMiiknipt. It was held that having an interest in btiiig reliev<Ml from tlie 
 iniiiiictiiiii awarded by the judgment, they might appeal, on giving security for 
 
 (:,.sts. 
 
 A iiiairied woman and her liusliand were co-plaintiffs ; after the action had 
 lieen entered for trial, the Inisband became bankru))t and obtaiiutd a discharge 
 in li(|iii<lation. No one apjieaied at the trial, and it was held properly dis- 
 missed with costs as the husband was still liable for costs and they were 
 not providile in the licpiidation : Vint v, Uiuhpith, 'fl L. T. N. S. 741 ; 2!> 
 Ch. I). :«L'. 
 
 If the (leath or change of interest takes jilace befoii' the writ is served the Doatli, etc., 
 aotiioi c.iiiiiiit bi^ revived or contiinu'd : Wotsitti v. iAo/i, 1 Cliy. Ch. 20.") ; see Ijeforo writ. 
 F<,4>r\. \\'<(r>l, !tL. H. Ir. 447. 
 
 A writ was issueil but not served within six years from the accrual of the 
 cause of action. The defendant died within a year fnnii the is.sue of the writ. 
 A new writ ag.'iinst his representatives was issued after the year from the issue 
 of the old writ, but within a year from the deatli of the defendant. It was held 
 that this was a reasonable time under the 4tli sec. of 21 Jac. 1, c. K!, (Statute 
 of Limitations), and that The Jiidinitiirc Art does not alter the right to bring 
 fresh actions : SirindM v. JiiilMeii, 35 W. K. 18!) ; 18 (^ B. D. 2.50. 
 
 The iiresent Rule ajiplies to enable tlii^ action to be proceeded with in case when ac- 
 of marriage, death, or bankruiitcy, without further order or notice, (mly where tiou may 
 the cause of action survives or continues in some person who is before the Court : proceed 
 EldridiK v. liuriivxn,'; C\\. 1). 411 ; see Alhhiii v. Biiffido, etc., 2 Chy. Ch. 45. without 
 Thus where five defendants were jointly and severally liable, two of whom ** 
 became hankrupt. Fry, J., t)tfered to allow the trial to stand, that the other 
 three might serve notice on the trustees of the bankrupts if they wished to do 
 so; ivs they declined, the suit was held not to be defective and the trial was 
 ordered to jiroceed : Llmid v. himnidcl:, 7 Ch. 1). 3!t8 ; see also Walktr v. 
 lUaikmiiri, W. N. 1H7(), 112. 
 
 Where partners have recovered a judgment, and one of them dies, the action 
 survives, so that the surviving partnermay issue execution : Ihicirs v. Amlrewn, 
 28 Sol. Jour. 411 ; W. N. 1884, !I4. 
 
 Ill an action for damages for misrepresentations against several defendants, 
 one defendant died after issue joined. It was held that the action could be 
 proceeded with against the survivors : nriitt.n v. Nrrlon, it Out. 385. 
 
 NVhere, however, a .lolc plaintiff or defendant dies or becomes bankrupt, the When 
 action abates or becoUKis defective : E/ilridiic v. Biiniiix, 7 Ch. J). 411 ; Jackmn order iie- 
 V. N. E. It, I. Co., 5 Ch. 1). 844 ; Barter v. Dihriix, 7 Q. K. 1). 413 ; Kimivn v. Carti; cessary. 
 17 Ch. I). Ki!); Chorltim v. Dickie, Vi Ch. 1). 100; Warder v. Sif.inde .a, \^) 
 y. B. I). 114, and requires to be continued under the subsequent Rulcx by the 
 Iinjper parties : Walker v. Blackuwre, xn/n-a. 
 
 On the bankruptcy of ])laintiff, the defendant, wishing to have the action 
 msmissed for want of prosecution, was required to give notice to the trustee : 
 Wrujht v. ,S>(m/ort Rii. Co., 4 Ch. D. Iti4 ; see also Re Atkins, 1 Ch. I). 82; 
 CaiHtnm v. Eai/rr, (( P. R. 117. 
 
 j.A. 86 
 
:«£. 
 
 
 562 MISCELLANEOUS PROCEEDINOS. 
 
 Rules tu un action by the imlorHcr of a hill of excluuigt? a^faiiiNt the (Irawcr wlio lm<I 
 
 621, 622. iM'Conie bankrupt, and snfferwl judgnicnt by (Icfiuilt, the tniHtvo a|>|ilic(l for 
 li'avu to (Icffiid, uoinplaininK tiiat jiidjjnifiit liad l)i'cn snapped, (^iiain, .1,, 
 «aid, "It is only a (lue.stion of ternis. I will order the judgment to lie set 
 aside on payment of costs, and that the trustee lie at lii)ertv to defend in tin' 
 name of the debtor: <,'uil<l(ir<l v. /'im/r, W. X. b>^7"), !'»);' 1 ("harl, (Jli. Civ. 
 12(>. 
 
 Assign- tt3l. In case of an assignment, creation or devolution of 
 
 went pen- . , , " ' . , 
 
 4ente ut<: any estate or title pendente lite, the action may be continued 
 by or against the person to or upon whom such e&tate or 
 title has come or devolved. J. A, Rule 384. 
 
 Identical with the Kng. R. 187r), O. 5(), r. 3 (ISS3, R. 180). 
 
 Incumbrancers, or purchasers, lieconiing such after writ sued out. and a //.< 
 /inulen,i registered, will be boimd by the judgment and need not be niiide luu'tiiH 
 wliethertiie plaintiff have notice of them or not: Dan. I'l'.. .")th ed., LMl' : A'o'/so/i 
 V. Ai'fiuc, 25 (ir. 407; see Witllhriihu- v. Miirtin, 2 t!liy. Ch. 275. I'.ut in cases 
 where there has bet'U a change in ownership of the legal estate and a cdiivev- 
 anoe is retiuired, it may be necessary to add parties : Dan. Pr. 243 ; and .ii'prit 
 p. 1.52 ; additional parties may be, in such cases, added by the jilaintitf by tlm 
 common jirnripr order: Mtittlum v. Mtiirx, 21 (ir. itil ; see also Lnnr \, 
 U^atson, 1 Sm. & (iiff. 123; but not parties who accpiired their interest hefori' 
 action: McKcif.ii v. McDnawll, 15 (Jr. 442. 
 
 Whetlier an agreement respecting the assignment of the subject of an iictiim 
 made with [lersons not parties, /it iu/< ntr litr, renders the acticni defecti\ e depeiidH 
 ui>on the nature of the agreement, and whether according to its legal effect the 
 Court can give the relief claimed without the luldition of the other persons : 
 Svott V. Brnolirt, !» C. L. T. LSI. 
 
 Rule 324 has been also applied to add |)artieH f(jr example, in Kimi v. /tailkin, 
 t> Ch. D. 1()0, to iwld a jierson at his own recpiest to whom an assigiiineut 
 IKiulentc lite had been made by defendant; and in Sciir v. Ltiii'!<iiii, Hi <'h. D. 
 121, on defendant's motion to add a |)erson to wliom the plaintiff had assigiiwl 
 his interest. In such a case as the last, the action may be stayed till security 
 is given, or the suit contimied in the name of the assignee : Swon v. AiIums, 1 
 P. R. 147 ; see also Axhhii v. raiilnr, 10 Ch. I). 7<iH. 
 
 The Itule apjilies only to devolutions or assignments /xinlnitt liti, not after 
 final judgment : .\ttti.-<liut. v. BiriniiKjlKnn l^'ur/i., 15 Ch. D. 423: but in a fore- 
 closure action, where a party had assigned his interest after decree, the 
 assignee was nia^^le a iiarty after order for foreclos\tre absolute: ('iiiii/tli(ll v. 
 Ilolplnivd, 7 Ch. D. l(;(i ; but in Ahc/l v. Parr, !) P. R. 5(i4, it was held that pernoiis 
 to whom defendants liad assigned iiiu'lcntc liU; co\dd not be added after 
 judgment and declared bound by it, where they claimed to be entitled iiide- 
 IH'ndently of the assignment. 
 
 .\n order adding a trustee in bankruptcy under this Rnlf as a defendant for 
 discovery only, was set aside as improjier : Si/iiioin/.t v. t'iti/ Haul:, "'•' h. 'I. 
 •Four. 175. 
 
 Where a trustee in bankruptcy suing as such is removed, and a new trustee 
 apjKjinted, the latter nnist obtain an order to continue the action : Pooliii* 
 Trustee v. Whitham, 28 Ch. D. 38. 
 
 Order to 
 add parties 
 on change 
 of interest 
 how ob- 
 tained. 
 
 032. Where by reason of marriage, death or bankruptcy, 
 or any other event occurring after the commencement of 
 an action and causing a change or transmission of interest 
 or liability, or by reason of any person interested coming into 
 existence after the commencement of the action, it becomes 
 necessary or desirable that any person not already a party 
 
TRANSMISSION OF INTEREST. 
 
 563 
 
 ■r wild liwl 
 pplicd f(ir 
 i^iiHiii, •!., 
 , t(i l)f •'"'t 
 Villi ill tilt; 
 il. (Jli. C;i. 
 
 lution of 
 aiitinut'd 
 estate or 
 
 ut, mill 11 ''•' 
 
 Uilllf \liU'tilH 
 
 242 : /'"''HO" 
 r.iit in east'-'^ 
 11(1 il cniwcy- 
 ; ill 111 ••<"/»■" 
 iiititf !)>• till) 
 ilsip Lniir V. 
 tiTi'st. Uffori' 
 
 ; ,,f an iictiim 
 -tivf(lci«-iKl» 
 <ral I'tt'fct the 
 tlii-v iii'i'sims ; 
 
 ,11, V. I!iii(kiih 
 11 iissiKiiwi""'' 
 „i, 1(i Cli.l). 
 Iiail assigiiHl 
 ,1 till security 
 
 V. vl''""l.'i " 
 
 lit,, nut after 
 
 Imt ill a fore- 
 
 (Ucive, the 
 
 (',ll,llllitll V. 
 
 . tliat i*>ivms 
 
 ,i,l(l,.(l after 
 
 (.ntitli'd niile- 
 
 ....fiMiilautfor 
 (,(///,■, :'■• t'' I- 
 
 ,u.\v trustee 
 tion : /-■'>"''■."» 
 
 bankruptcy, 
 
 ncement of 
 
 of interest 
 
 .oming into 
 
 it becomes 
 
 ,dy a party 
 
 to the action should be made a party thereto, or that any Rw^' ***• 
 person already a party thereto should be made a party 
 thereto in another capacity, an order that the proceeding in 
 the action shall be carried on between the continuing parties 
 to the action and such new party, may be obtained on 
 liMcipc, (a) upon an allegation of such change, or transmis- 
 sion of interest cr liability, or of such person interested hav- 
 ing come into existence. J. A. Eule 385. 
 
 («) The Kng. R. 187'), (). :>(), r. 4 (1HH3, R. 181), lias tlui words " ex parte," 
 iiistfiul of tlu^ words " un //;v# ri/ir " / it is otliiTwise the siime. 
 
 This /{«/(' applies where the cause of action survives or continues to some 
 pi'i'SDii not already a party. Where the cause of action does not survive, the 
 action cannot lie continued under this Unic: see l.mrv v. Wdtmtii, 1 Sin. & 
 (iifit. 123; Ik ml II v. DcixIh, ."i W. R. 221 ; '''riinliDicih v. Ruiiuu'ii, 5 W. R. Hi'); 
 WilliantK v. Wi'llidms, it W. R. 21»f). 
 
 All actions survive which do not fall within the maxim, "actio permnaiiit 
 iiiwitur emit, jicrnuiid," as modified hy statute: see Tn'i/crijux v. (Jrant, 4 
 ('. P. D. 40. 
 
 Suhject to statutory exceptions, actions for injuries merely [lersonal do 
 not .survive : see l'ii;i/crn.tn v. (I'lant, .•<itj>r(i ; liitirkcr v. Evuitx, 15 (^. B. D. 5(55 ; 
 (an ivctioii of tort referred to arbitration, and notwithstanding the mention 
 iif the personal representatives in the submission) ; Uilii v. Stiictirt, 10 Ont. 
 "lid (an iwtion for seduction) ; Fiiihiii v. Cliirnii/, 20 <^. B. D. 4!t4 (an action 
 for breach of promi.se of marriaife); llatclmril v. Me;ic, 181,^. B. D. 771 (an action 
 for (lefaiiiatioii, whether of t\w private cliaracter of a person or in relation t(v 
 ills trade). 
 
 But an action for a false and malicious statement, causing damage to the 
 plaintiff's iK'i'.soual estate, survives : llidchanl v. Mi-iir, mtpra ; and generally in 
 iictioiis for torts, where the injury has been to the estate of the deceased, the 
 action .survives to his personal re])resentatives ; 2'iriicri).^!< v. (rriint, 4 C P. D. 40, 
 and where a defendant in an action of tort dies, and his estate has benefitted 
 by the tort, the action survives against his personal rejiresentatives : AMey v. 
 Tmilor, 10 Ch. D. 708 ; Phi/li/ix v. llomfniy, 24 Ch. U. 43!) ; Hamilton Provi- 
 (itiU V. Comill. 4 Ont. 023. 
 
 Fortius rea.son, an action to restrain the infringement of a trade mark sur- Trailo- 
 vives: DuLri/ v. DuUiiii, 3.") Ch. D. 700. mark. 
 
 In an action for damages for breaeh of covenants for title, the plaintiff died Covenant 
 Iwfore tile trial. His personal represi'iitative «as held entitled to the damages tor title, 
 accrued in his lifetime, and therefore, the action survived to his administratrix, 
 although tile future claim survived to the heir: I'lutl v. <1. T. liij., 11 Ont. 246. 
 
 An action for breach of promise of marriage where no sjit'cial damage is Breach of 
 alleged docs not survive. 'Ihe sjiecial damage which would cause the right i)romise of 
 iif action to .survive must be damage to the property and not to the person ""i^'iise- 
 of the promisee, and must be within the contemplation of both parties at the 
 ilateof the promise, and the action can be lirought against the executors for 
 such siH'cial damage onlv and not for general damages : b'inhni v. (Jht rw'ii,2() 
 <i. B. D. 4!)4. n f . ,/, 
 
 But where the defendant in an aetiou of tort died before trial and at a date 
 later than six months after the commeiKeiiieiit of the atjtion, and hiul not got 
 any benefit l)y the act comiilained of, but iiad uuly injured the plaintiff, it was 
 held that the action did not survive, and could not be continued against his 
 lier«oiial ivpiesentati\es : Kirk \. T«,l,l, 21 Th. D. 484; .see also I'lnlHim v. 
 """0".'/, 24 Ch. D. 43lt ; <%ii„h,>h v. />"■/, \\\ \V. R. 707 ; 48 L. T. N. S. 1)07 ; 
 41IL.T. \. S. 430 ; see also /..'.s//-' v. i'ldfia, !) Ont. 207. 
 
 Practice. -.\n order to add parties under this Rule is an order on imn'iiw '■ practice. 
 0<//<(io( i:„Ui„rt r„. V. X"/'; IK C. L. .1. ()') ; application in Court is not necea- 
 

 664 MI8CKLliANE0U8 PROCKEDINOS. 
 
 Rule 622. wu-y: Cmne v. Loftus, 24 W. K. H3 ; /f''//i'(/ \. Millr,; /hid., 109; />i/cr v 
 /'anitn; W. N. IH«1, lOn. 
 
 Aftfr nil order under tliis Itidf, the practice in iih formerly, that in tlie hiiIi- 
 Hwpieiit proceedings the title of tiie revived action hIihII hv added to the 
 original wtyle : AMillcr v. Hin/iNi'sfiiiif, W. N, 18H1, 171; AVno v. JMirnun.Hi 
 Ch. I). 121'. 
 
 A party served with n(»tice of the judgment and having liberty to attend the 
 proceedings after judgment, may ol)tain an order inider this Jiii/f : Jlmsliill v. 
 Fcarmi, 24 Ch. 1). 12(1 ; Imt not a jierson who has not obtained such lilnTty 
 as he is not a party : hdiini'ij v. Dclmn'H, 27 Sol. J'ur. 418. 
 
 In the case of transmission of interest of ii jiarty served with notiuc of 
 judgment an order undei' tiiis Untc is not proper ; the successor sliould \w. 
 served with notice of the judgment : Re IT/c/.v, W. N. 1888, 1). 
 
 An executor continviing an action becomes, as formerly, when he obtained an 
 order of revivor under tiie old pra(;tice, liable for i!osts : /idi/ii/mi v. Ilin/iildn,'.! 
 Ch. 1). 250 ; 4 App. Cas. 733. 
 
 Where two of several plaintiffs having separati' causes of action died l)t'forc 
 trial but, in ignorance of tiieir death, the trial proceeded and the actinTi wiw 
 dismissed, an a])plication 1)V the executors of the deceasi^d plaintiffs to 
 continue the action was refused ; Arm'son v. Smith, 40 Ch. 1). .1(17. 
 
 An order of revivor is in force from its service, and notice of trial served 
 within 14 days after such service, for a day after the expiration of the 
 14 da>'s was ludd gcxxi : \cw Yarlc J'iitnn C'i>. v. StereiisaH, 10 P. R. 270. 
 
 Where on the death of the sole defendant after notice of trial, ])ersi)iis in 
 whom his interest vested were added as defendants. It was lield that new 
 notice of trial to them was necessarv : ■/"/' /'.s'^'/( v. Kiujlixh, TiTt L. T. N. S. i"),5 ; S'l 
 W. K. 2!l; W. N. 1880, 131. 
 
 Examples. On tlie deatii of an iiccotmting party the Couit may on an './• iia rtr uwixm 
 order the action to continue l)etween continuing parties and the executor of 
 ileceiised, notwithstanding that the executor is resident out of the jurisdiction : 
 Jnmesiiii v. Mcisludl, 4(5 L. T. N. S. 480; but see Morriee v. Smart, 73 L. T. 
 Jour. 3!>8. 
 
 Where the |)IaintifT died within fourteen days from trial, the Coiu't made an 
 order, on the ajjplication of the executors, continuing proceedings, the executors 
 undertaking to apply forthwith for probate, and to produce the same at the 
 trial of the justion if obtained : I/iii/lu:i v. West, 13 L. K. Ir. 224. 
 
 Two sons were under their father's will appointed trustees on attaining 
 twenty-one, and an administration action was commenced on the elder attain- 
 ing that age, in which the infant son was a plaintiff and the other a defendant 
 as trustee. Upon the infant attaining twentv-one and Injconiing a trustee and 
 thus changing his interest and liability, an order was made ex jiartr miik'm^the 
 infant son a co-defendant : Re Guold, (liuihl v. (Joold, TA L. T. N. S. 417 ; NV. N. 
 1884, 18.5. 
 
 In an acti(m on a promissory note, where the defendant became bankrupt, it 
 was held that the trustee should not be added, as the judgment would not 
 be for recovery, but would oidy amount to a declaration of a right to prove, 
 which ought to be made in the bankrui)tcy proceedings : Barter v. Ikheux, 1 
 Q. B. D. 413. 
 
 Where a petitioner had died after an order directing inquiries, it was ordered 
 that the petition be carried on by the executors : Re AtJcin's Estate, 1 Ch. D. 
 «2. See note to s. 2 of the Act. 
 
 If an action becomes defective by the birth, since its commencement, of an 
 infant who is a necessary party thereto, and proceedings since its birth have 
 been taken in the action, tlie common order under this Rule will not render 
 such proceeding binding on the infant. A special fonn of order to meet this 
 case will be found in Seton, 4tli ed., 1.527, Form 3, and Peter v. t'e/er, 2i> Ch. D. 
 181. 
 
 Where a i>arty becomes a lunatic pending action, as to contimiance of the 
 Action by liis committee, see Re (ircen, 41 L. T. N. S. 30 ; 
 
 48 L. J. Chy. m. 
 
TRANSMISSION OF INTKUR8T. 
 
 565 
 
 In »''(///.■< V. Smith, 4('. L. T. \. S. 47.'^; iM L. .1. Cliy. r)77, a jiKlKiiicnf. Rule 883. 
 iTfditor wli'i Imd (ilitiiiiicd iiii urtlcr attiu-liin^f ii jiuljfiiifiit (l('l)t, whh held 
 (•iititli'<l t" '"' a<ldi'd under this /<((/» ivs c!()-|iliiiiititf with liiHch'litor in the aition 
 in whicli tin' delitoi' liad olitained the judKiiient, and to liave notice of nil 
 iinic'i'fdinXH taken in that .suit to recover the del >t. This deeisiou proeeeded to a 
 ■;i'<iit extent u|Hin the terms of Kn^. Ord. 50, II. 2, (IHHS. 1{. 17!»), whieli 
 al 11 plied to the case of the devolution of estate hy operation of law, and whi(^h 
 iKit heen adopted in the Ontario Act. 
 
 Tiiis A'"/'' is not inapplicalde to the case wlient there is a transmission of 
 interest hy reason of a suliseipient incnnnhrancer having redeemed the i)lain- 
 tiff in a foreclosure suit. In such case, a new iu;count may probably be taken 
 without order under 11"/'' !.'<-. The costs of an order un(ler this Rn/i' were 
 iilldwed in Milr/irl/ v. /i.irritl, .'< ( ". L. '!'. L'dr.. 
 
 Where a .sole plaintiii' in an administration action died, an order to continue 
 tlieuctioii was },'-ranted ton ))erson who had been servecl with notice of the judfr- 
 nientand had obtained liberty to attend the proceedings, he being held to be in 
 the same iMisition as a piirty to the action : linixlull v. t'liiiini, 24 V\\. 1). I'Jtl. 
 The |H isonal representative of the jilaintitt' might obtain an ordei' to continue 
 the pincee<lings : Dfii-r V. l'ii',,itn\ \V. N. 1H81, 105. 
 
 Where an appeal to the f 'ourt of .Vppeal becomes defective by death, trans- .\ppeal. 
 inission of intei'est, or other cause, pnieeedings to continue the appeal by or 
 against the jiroper parties should lie taken under this lliiU-, and in the f4iurt of 
 first instance. The ajipeal is a ste)! in the ciui.se or matter : A'»/c >S(i;{, and tiie 
 iircsent /i'"/'' being applicabh^ the express provisi;)n to the same effect made by 
 K. S. <). 1S77, c. ;{.S, s. 4(1, has been omitted as unnecessary in the Uevision of 
 the Statuti's and UiiIik: see also /'mi-snii v. I'l'thd, 17 f"h. I). 7<>7 ; Id Kidijld, 
 Kiiiijlil \. ddidiii'i-, 84 Ij. T. .lour. 205, 
 
 The (y'durt has a discretion to allow a suit to be I'evivi'd w here it has abated 
 more tliiin twentv years : f'»W/.v v. .s//./// ■/'/, 20 V,\\. I). ;«I.S ; and see 21 Ch. 1). 
 1 ; seeahu) !■ ii s.-irlf y . /)nir,/i,i;/, 27 Ch. D. 2;{7. 
 
 Where the suit abates by the death of a party, no express provision was by 
 tlie original I! ules made col-responding to the old practice by which a motion 
 iiiav be made by the defendant or his representatives to compel the represen- 
 ttttives of the iilaintifT, or the plaintiff, to obtain an order to continue within 
 a limited time, or in defa\dt that the action be dismissed against them : 
 Midinii V. Kill!!. 2!) VV. H. 7:5. K. S. (). 1877, c 5<», ss. 241 and 242 (now Bi'/r 
 •i2i)) contained such provision: see also Cduirrnii v. Kni/i'i; (i P. R. 117; 
 Chwrick V. Diiiii's, ;{ Beav. 2!I0. 
 
 Ill \Viii(/iiiir v. Thoiiiji.v II, 11 Ch. I). 41!l, the Court acting under 15 & Hi 
 V. 0. 50, s. 44 (.see link 'A\{)), a)>pointed a person to re])resoiit the estate of a 
 deceased plaintiff, who died m.solvent and intestate, so that the defendant 
 init'ht have somelMKly against whom to move to have the action dismissed for 
 want of jiroseciition. 
 
 ^H'.Otiliiiirii ddhiiirt Co. v. Xn/i; in note to /'d/f ;}7t>. 
 
 .\ countor-claiin may be revived, in the .same way as an original action, by Counter- 
 tlie rejiresentatis-es of the decea.sed counter-claiming defendant; Andrew v. claim peti- 
 Ailhrii, 21 Ch. 1). 175 ; see also Linii.si/rii v. ll7/(/«v, S (^. B. I). (i50. tion,etc. 
 
 As to the cas(M)f consolidated actions, see /'c Wnr/li'i/, 4 Ch. D. 180. 
 The lliili.f on this .subject apply to jietitioiis as well as actions : /'i' .\/kiiis, 1 
 Cli. 1). 82 ; Ilr l)iiiii'ri,i\ W. N. 1878, 1!)!». 
 
 NVIiere, after judgment, it is merely <lesire(l to issuer execution, and rights or 
 liabilities liave become changei I by death or otherwise, the iMJi-son seeking to 
 issue execution may proceed nnder linh' 88(j. 
 
 Where it becomes necessary to enforce a judgment against persons who have 
 siil).se(nieiitly accpiired a title an action nnist be brought for the puriH)se : 
 Altii.-dni. V. <'iir. 11/ /iiriiiiiii/liniii, 15 Ch. D. 428. 
 
 S.. 
 
 
 (»2;S. An order so olitained shall, unless the Court or a service of 
 Judge otlierwise directs, he served upon the continuing ''"'^'' 
 
m 
 
 066 
 
 MI80ELLANK0LH I'UOC^KKDINas. 
 
 RiUes 
 634-626. 
 
 '^ 
 
 
 Applica- 
 tion to din- 
 charge 
 order. 
 
 Indorse- 
 ment on 
 order. 
 
 Applica- 
 tion to dis- 
 charge 
 order by 
 persons 
 under disa 
 bilitv. 
 
 |)arty or parties to tlie action or tlieir solicitors, and also 
 upon cacli f' ';h va'.w \niviy (unless the person niakiiij^ the 
 application be himself the only new party), and the order 
 shall from the time of such service, subject nevertheless to 
 the next five followinj? Rules, be binding on the perwm 
 served therewith. J. A. Rule 386. 
 
 in) T\w V.ng. R. 1875, O. TiO, r. .^ (1HS;». H. 1S2) nanicM two iiistciid of tiv« 
 following KulcM, tlit'Hf two lieiiiff tlic Riilcw corrcniHiiKlinf? witli (124 iind (iL'.'i 
 infra: tlif other tlircf Iiitc followiii(f ///'/«•< ni'c not tak<n from tlic KiikHsIi 
 Rules. 
 
 The Kii^linh R\ile hnn the followin^f additional words at tlie end of the Kiile : 
 " and every |K'rson nerved tiierewith wlio is not already a party to the cause or 
 matter shall he iMnuid to enter an appearant'e thereto witiiin the same tiiiieaiKl 
 in the san'e manner as if he iiad In'en serve<l witli a writ of sinnmons." The 
 Ont. RuL's do not reqti ire an appearance to lie entered hy the person servwl. 
 
 IIS4* Where any person who is under no disability, or 
 under no disability other than coverture, or being under 
 any disability other than coverture, has a guardian (id litem 
 in the action, shall be served with such order, such person 
 may apply to the Court or a Judge to discharge or vary 
 such order at any time within 14 days from the service 
 thereof. J. A. Rule 387. » 
 
 Same as the Knp. R. IS""), <). 50, r. (> (18S.S R. 1S.S), except that the time 
 tiiere limitf d is 12 days, as wa.s also the case in orig. /tiilc iiHJ. 
 
 This Rule is very similar in its teiiris to Chy. G. (). 33!(, under wiiich it wa< 
 held to l»e not sufficient to give notice of the motion to discharge within tiic 
 time allowed, but the motion hiul to l)e made returnable within that time: 
 Httrris v. Mi/crH, l(i (ir. 117 ; Jacknon. v. (•'iiriihitr, 2 Chy. Ch. iiHti ; 1.') (!r. 42,'); 
 Mcllro!) v. Han-kc, 3 Chy. Ch. (Mi ; see Fo.t v. Wallix, 2C. V. 1). 45. Tlie tini« 
 maybe extended : see Smith v. (/itnn, 2 Chy. Ch. 2.30 and Ruir 485. Tim 
 motion was fonnerly made to the Court and set down for tiu> proiH'r (l»y, 
 but qumrc whether it may under the present Ritif be made in Chambers. 
 
 A notice of trial served liefore the 14 days had expirwl for a sitting c()in- 
 mencing after the 14 day.s was held gofnl, no motion against tin; order liavinff 
 been made : Neiv York Piatio (Jo, v. Stevetuum. 10 P. R. 270. 
 
 633* Upon every copy of such order served, there shall 
 be indorsed a memorandum in the form or to the effect set 
 forth in Form 20 in the Appendix. J. A. Rule 888. 
 
 No form is given in the English Rules. 
 
 6S6. Where any person being under any disability other 
 than coverture, and not having had a guardian ad litem 
 appointed in the action, is served with any such order, 
 such person may apply to the Court or a Judge to discharge 
 or vary the order, at any time within 14 days from the 
 appointment of a guardian ad litem for such party, and 
 
TUAN8MIS8ION OF INTEREST. 
 
 567 
 
 nittil such period of 14 days shall liavo expired tlio "i"<^('i* JoVmi 
 shall luive no force or efifect as against such last mentioned 
 person. J. A. Rule 889. 
 
 SaiiM' 11- tlir Kii-. I{. is;:.. < ». .VI, r. 7 (1HH.3, R. 1H4). 
 
 027. Whore tlie order is served out of Ontario, the party ^ji,''"'''^-,. 
 nerved is to have tbe same time to apply to discharge the cimiKo ' 
 oriler, ns a defendant has to appear to a writ of summons °^|.v'J,"o'u" 
 so served ; but an application may be made for shortening °' "'"»'■'" 
 the time. J. A. Rule 390. 
 
 Not fiikfii friiiii iiiiy KukIIhIi HmIi'. Am to the time for apix^arance to a writ 
 
 <il' siiiniiiiiUM served out of the jnriNclictioii, Kee Unlc 27<i. 
 
 .\l'l>lioa- 
 
 Uan. Where the Court or a Judge authorizes publication t'"" 'b ca«» 
 iuHtciul of service, the Court or Judge is at tbe same time toaiiowiuK 
 iil)lii>iiit such time for applying to discharge the order as ^^JiXa- 
 ^ ems jjroper. J. A. Rule 391. ""»• 
 
 Not taken from any Knt'lisli Knle. 
 
 rtlStt. Where an action would but for these Rules have nisht of 
 abated by reason of the death of either party, and in which f,facUon" 
 the proceedings may be continued under these Rules, the ;^''''^*» "'•' 
 
 ^ ^ im BO COD' 
 
 defendant or person against whom the action may be so tinned, 
 contiinied, may apply on notice to compel the plaintifi", or 
 per.son entitled to proceed with the action, to proceed 
 according to the provisions of these Rules within such time 
 as the Court or a Judge may order or in default for an order 
 (lisniissiug the action or for payment of the costs thereof 
 or for such order as may be just. R. S. 0. 1877, c. 50, 
 ss. 241, 242. 
 
 030. Wberever any judgment or order has been made costs. 
 for payment of costs and the action or matter would, but 
 for these Rules, become abated, anj' person interested 
 nmltr the judgment or order may under these Rules 
 continue the proceedings and thereupon prosecute and 
 enforce the judgment or order. See R. S. 0. 1877, c. 40, 
 s. 102. 
 
 681. Id case an action on a bill or a note is brought wiien e«- 
 against more than one defendant, who must otherwise «^J|^^^|^' 
 have been sued separately, and it happens that any defen- defendanti 
 dant dies pending the action, an action may nevertheless ^ed.*'" 
 be brought against the executors or administrators of such 
 deceased defendant. R. S. 0. 1877, c. 50, s. 138. 
 
.Ill 
 
 '^ 
 
 568 
 
 Rule 632. 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 16. Payment into Court in Sati8PAC'"ion. 
 
 fendan't*" **'^*^' A (lefendiuit may, eitlier before or at the time of 
 niaypayin. cleliverinjT his defence, or afterwards by leave of the Court 
 or a Judge, pay 'nto Court a sum of money in satisfaction 
 of the cause or ;i part of the cause of action, or one or more 
 of the causes of action for which the phiintiff sues, and the 
 ' money when so paid in shall remain in Court subject to 
 
 further order, unless the plaintiff elects to take it out. But 
 the payment of money into Court sh tU not be deeiued an 
 admission of the cause of action in respect of which it is 
 so paid. Xcir. 
 
 This /'nil' iiKiki's a ui)iisi'lfral)I<> cli.iiiy:'' i" tlic ipriicticf, and i-^ in iiuiiiy 
 rf>s|H'ots different from tlie Kn;j:lisli practice under Rules of IHS;!, Itr. l'.V)-:*(u. 
 
 (1) It is not eontiued to any particular kind (,f action, ft tlierefcne will ;it 
 any rate ai)ply in any "action to recover a del)t or dauiaf^es, " wliieli uas tli<- 
 'anpfuai^'e of the ori|,'inal A'/'/'- 215 (as also of the ])resent Kiijf. Uule L'.Vi), uliicli 
 extended the li^'ht theretofoi'e existing,' at Law ; see Maclennan .Ind. Act, L'ml 
 e(l., 34!t. The former Jiii/i was held not to ai)ply in an action where an aremim 
 was claimed : JV(W;o/.s v. Kvi ux, 22 Ch. I), (ill. 
 
 (2) It enables tlie defendant to (h'liy the plaintiff's causes of .ution, ;inil :ir 
 the saiiK' tin)" pay into Court: see /iin/ini v. <>'rii iiirnntl, .3 I'lx. I). SA: 
 Ndii'h'-i/iii V. /Iriiihlidi'; 5 <2. 15. I). 22. .302 : I'ven in actions for liliej c,v 
 slander: Hnir^rsl' // v. Jiriii/sliinr, .•oinr'i, v.hich are expi'essly excepted l)y the 
 Kn^r. Hule. (piiiri\ however, in some caM's, such as actions to try a riulit. or 
 to estahlisli a character which is a-'-ailed or. where fraud is char^jed : lln'ln,' 
 V. (I'ri) iiii'niiil, sii/17'ii. 
 
 The principle is, that the Court ouj,'ht not "to preclude defendants in aitiini- 
 from sayiiif? aufl doinj; that which, as practical men, liefore the actinii 
 they might reasonably say and do. \ i/,., say that they entirely deny a peiMiii's 
 rif^ht to sue them, yet pay, or offer to |iay, a sum of money as the price of p'lur, 
 and for the jirevention of further liti^,'ation "': liirihinw (iririnr(tiiil.'.\ \\\. \). 
 2.5i(. In .s'/""''' \'- H'lIK 2(^. 1>. I). (115, an action for miisance. the (lefeiid.iiit 
 was not allowed to plead payment into Court together with a diMiial nl tlir 
 rifftit of action ; but the subse<(uent cases make the propriety of that deci^imi 
 at least doubtful. See .also I'nttir v. ffdiiiiniiil ('ii/uiiid' / iisiirinin ('it. citiil 'J 
 <^ H. ]). (122. 
 
 (3) The payment into Court is not to be an admission of liability, riidir 
 the Enff. Rule payment in satisfaction is an admission of liability of th<' imum- 
 of action in respectof whi(di the money is paid intoCoitrt: but with his defi-mv 
 adefendant may (except in action for libel or slamler ; h'h miii'i \. Jiollar.Si 
 >). I?. I). 3SHi piiv ill money and '!cn\- jiabilit\- : \VI,i<l,r\. (JniuJ T''/'li"ii' 
 Co.. 13(,». M. I). r)97. 
 
 (4) Payment may be made in satisfac'tion of part of a cause of actimi. erol 
 any one or more of several ca\is<'s of action as well as of the whole action. 
 
 (o) The ])laintitf may not take the money' out. unless he aceeiifs it in 
 satisfaction of thi' cause of a(^tion in respect to which it was puiil in: 
 Ji'iih (W.-). 
 
 The result will be that notwithstandinaf any tlefence dentin'? liability, tlw 
 acceptance will satisfy the cause of action, and the action, excejjt as to rests, will 
 come to an <>nd, if the pavment in is in satisfaction of the whole cmmsi' nf 
 action : see /f< h'tir/ <if Slinn/'inl, 33 \V. |{. '.MM), where plaintiff, after takiiii,' tin' 
 money ])rocecd(^d witli the action, and was retpiired to stop in'oceedinjfs (ir pay 
 the money in a^'ain; sec also Kum v. Milrln//. 13 I'. \i. J IS. 
 
 Formerly the |)ayment in I'liabh^l the plaintiff to take the nmney nut, lint 
 accepting it in full, and proceed with the action ; and he mi.uht I>*'|'I' '''''' 
 
PAYMENT INTO COUHT, 
 
 569 
 
 iiiMiiey ill the end tlum^h liis action failtxl : seo Mivcleniian .Tud. Act, 2ii(l Rules 
 (•(1., 3a'^- ''"' iii"n<\y will, under the |)rnsciit liiil<\ remain in Court as tlic 633-636. 
 (Icfcmliiiit's money, if not accepted by the ])laintiff in satisfaction, to Ixi dealt 
 with by the Court in the judfnnent or by other order in the action : see Maitlr 
 \. Eini of Slirnrubnri/, 35 \V. H. <Sl!). It will not be paid out on motion by tlic 
 |il:iiiitiff, lie not accei)tinj,' it in full : /iinit v. MitrhcK. Kii/ira. 
 
 Where the money is not aceei)ted in full, and the ])laintitf does not succeed 
 ill ohtiiiiiiii},' more, it woidd seeni that tin? defendant has established a defence 
 to the wlidle action, eiititliuj,' him to the t^eneral costs of it : see Wlia/ir v. 
 t'liitril Triiiiliiiiii f'li., l.'{<i>. H. 1). 5!t7, and A'«/if V. Mitchctf, nupni. 
 
 iilili- Payment into Court Khali be sipriiified in the'i'o'Jf 8>e- 
 defence and the claim or cause of action in satisfaction of defence, 
 wliicli the i)avment is made shall be specified therein. 
 
 Taken from Knj;. TJules of 1883. R. l'.'jC. 
 
 Where there are several caiisc»: of ivction or different heads of claim money 
 shimld tKit lie ]iai<l in ji'eneriilly, without specifviii^r tlie amounts applicable to 
 the (iitfereiit causes of action or lieads of the (^laim, where it can \tv done ; 
 citlieiwise |iarticulars may be ordered. Thus, where plaintiff claimed (1) hir.itic 
 imitits and (2) daiuiifjces for dihipidation and non-repair of ]iremises leased ; the 
 (lefendiuit |iayin^r in i^'euerally vias ordered to trive particulars aii|M>rtioiiin«' the 
 lUdUev p.iid ill to tile ditferent heads of claim : /''nrr v. /\i\/i/, o'.t L. T. .\. S. 
 I;i!l : W. X. bSHS, 1-11. The Kiik-. Ivule --'((H, resp.'ctiu«- particulars (not adopted 
 ht'iv) was referred to, but d(pes not seem to provide for more than l>v the 
 iniietiei' whieli has •>ro\vn up in Out., without special Kidi'. may lie ordered. 
 
 In f.iriiirr V. A-//'/, 4!l L. .). ('. I'. 4S1, 4:i L. T. X. S. 427, (diseuss..d in 
 H'liv V. h'lili/) \\liere plaintiff claimeil for clistiuct services as defendant's 
 :uvhitt'C't, vi/.. : ill prepai'iu'.r plans, acttiujjr as arbitrator, and makiu;,' surveys, it 
 uiK held that payment into Court f^'enerallv was sutticieiit in point of pleadin;.',', 
 iiut tile iiiK'siidii whether particulars should be ordered was not passed upon, 
 -n' liihiL- I'j l.i,ii<h,ii V. U-iKir'iiilir (.!"., 12 I'. U. 4!)!», 
 
 UJ$I. [f a d(!fendant pays money into Court before or in 
 delivering his defence, he shall serve upon the plaintiir a"""""' 
 notice specifying both the fact tliat he has paid in the 
 money, and also tiic claim or cause of iiction in respect of 
 which the payment has been made. The notice may be in 
 the Form ^q. 21 in the Appendix, with such variations as 
 circinnHtances may require. New. 
 
 Tiikeii from the Kwx. I{iiles 1,SS.'i, K. 258. 
 
 <»I$il. If the plaintiff takes the money out of Court he How piain- 
 shall .<ike it in satisfaction of the very cause of action for tauomoney 
 which it was paid in, and shall ui)on applying therefor file"'"' 
 and serve a memorandum acknowledging the cause for 
 whicli he takes it out, which may be according to the Form 
 No. 22 in the Appendix, and shall be equivalent to a 
 i'litisfaction ])iece. V<vr. 
 S:i' iiiii.-s t'l A'-'/.- (;,'{2. ■ ■ 
 
 <»;tO. The ])laintitf shall make his election to take the Election, 
 money out of Court within four days after the day on which 
 
"^ 
 
 570 
 
 Rules 
 637-639. 
 
 Taxing 
 «08ts. 
 
 
 
 COUHOll- 
 
 dated 
 actions. 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 he receives notice of payment in if the payment is made 
 before defence, and if the money is paid in with the 
 defence, he shall elect, either before replying or before the 
 expiration of the time for replying, whichever first happens. 
 New. 
 
 037* When the plaintiff takes out money in satisfaction 
 of the entire cause of action he may tax his costs of the 
 action and sign judgment therefor, unless the defendant 
 pays them within forty-eight hours after taxation. New. 
 
 It has l>een held that thouph only sixi)fiice is paid into Court the plaintiff, if 
 he takes it in satisfiiotion, is entitled to his costs : Mr.siirtfcri/ v. /.niKuimi, 2i) 
 L. R. Ir. 528. 
 
 See l^iirklimi v. (iahh in noti' to Rule (i41. 
 
 If the (tlaintiff does not accept the money in .satisfaction, he may liecoim- 
 liable to pay the whole costs : see liunh- of LiukI'ih v. (iiitirniitw (V., 12 P. II. 
 4'J!». 
 
 The costs may be taxed ujid(U' tliis Itulv without any judgment or order unlf^■^ 
 it becomes necessary to enforce payment, in which case the ])laintitf may si|ni 
 J\idgment after the ex])iration of 4S iiours from the granting of the certificati' 
 of taxation. 
 
 If the ])laintiif do«'s not elect within the time given by Ruh- (iSi;, jiroliably lii> 
 right to do so, and to tax costs, is gone : st'e Spinrrr v. W<(ttx, "2.3 (I. B. H. 
 350. It was, however, held under original Ru/t 218, which gave tl." plaintiff 
 4 days after receipt of notice of payment within which to acce|)t tiuvfnoii''V 
 in satisfaction, that he might still ai)i)ly ujider /in/r 1170 for costs • '-Wi> 
 V. Flemiitij, 4 (l B. I)., 22(i; see also /{ri>,i</liii,:it v. i\'illri/, ^V. N. 187G, 21; 
 but query, whether that will be so under the jiresent llnlv.f. by wliicli tlif 
 plaintiff has no right to the immey by the mere payment of it into Court, liiit 
 only in the event of his making an election under Rul< iVMS. 
 
 This Rnlf (mly applies where the ])laintifT takes out money in satisfaeMon nf 
 the entire cause of action which probably means in satisfaction of all the plain- 
 tiff's causes of action so as to end the action. Ihider the foniier C(mimoii Law 
 practice where payment in was pleaded as tt> part only, the plaiutiiT could \v<' 
 proce"d at once to tax costs ivs to that cause of tuition : i>nitii v. (lull, ") Sc, 
 N. R. 818. 
 
 Where tiie i)laintiff's scdicitor, by mistake, accepted money paid in and signcil 
 judgment for costs, the judgment, on application of tlie planitiff, was set iVdide, 
 ujKin payment of costs and tlie plaintiff wtis allowefl to |)roceed with lii^ 
 action : Kiiwrji v. WcUnUr, !t Ex. 242. 
 
 6;{M. Where money is paid into Court in two or more 
 actions which are consolidated, the money paid in and the 
 costs in all the actions shall be dealt with in the same 
 manner as in the action tried. Atvr. 
 
 Taken from Eng. Rules 1888, R. 262. 
 
 ^uhi'tiff tt3!K A plaintiff may, in answer to a counter-claim, pay 
 may\my in. money into Court in satisfaction thereof, subject to the like 
 
 conditions as to costs and otherwise as upon payment into 
 
 Court by a defendant. New. 
 
 Taken from Eng. Rules 1883, R. 203. 
 
DISCONTINUANCE. 
 
 571 
 
 \^ 
 
 040. With a defence setting up a tender before action, f^^L, 
 the sum of money alleged to have been tendered must be ^, gj„,„' 
 Ill-ought into Court. Xrw. 
 
 Takfii from Kiif,'. Kdles 1883, K. 257. 
 
 This is similar to tlie foniier Conunon Law practicf : sci- C/iii/niiii/i v. Ilichu, 
 •_' C. it M. •'•51^, where it was held tliat if tile smii tendered was not jtaid in the 
 laintiff mi^ht sign jiidKnient for the sum to wiiioh the tender was pleiwled. 
 iVIieii iiaid in, however, the money will now l)e subject to the same rules as in 
 (itlier cases where money is jtaid in. 
 
 Inanactiim for wront?ful dismissal where the defendant tendered one month's 
 siilary, jileading that the plaintiff was onlv entitled to that, c)r in the alterna- 
 tive to three month "s. The money was ))aid into Coiirt and the plaintiff was 
 fdund entitled to one month's salary. It was held that the action heing for 
 iiiili{|iiidated damaf^es these Jin/i's did not ai)ply and <lefendant was entitled to 
 a return of part of the money : />(ir//s v. liichiirtlKini, 20 Q. ]{. I). 722; but 
 ODuld not recover it from the ])laintiff's solicitor, who \vm\ lioiii'i tiilc taken out 
 the money and i>aid it over to the jtlaintiff : >. ('. in ap|)eal, 21 <^>. 1$. 1). 
 '-'02. 
 
 16. Discontinuance. 
 
 641. 
 
 The plaintiff may, at any time before receipt of any {-jfy^""^ 
 defendant's statement of defence, or after the receipt 
 thereof before taking any other proceeding in the action 
 (save any interlocutory application) by notice in writing, 
 filed and served] wholly discontinue his action or with- 
 draw any part or parts of his alleged cause of complaint ; 
 and a defendant shall be entitled to the costs of the action, 
 if wholly discontinued against him, or to the costs occasioned 
 by the withdrawal of the matter withdrawn if not wholly 
 discontinued, 
 
 ((f) Such costs may be taxed upon production of the 
 notice so served without any order, and if not paid within 
 four days from taxation the defendant may, without any 
 order, sign judgment therefor] . 
 
 The lanj?\iage of this clause is now to make the procedin-e clear, which was Jiot 
 quite plain mider the original Rule ; see Bolton v. Bolton, 3 Ch. 13. 276, tinder 
 the original Eiig. R. 
 
 A form of judgment is given in the Api«'ndi.\, Form No. 178. 
 
 (/>) Such discontinuance or withdrawal, as the case may 
 be, shall not be a defence to any subsequent action. 
 
 (c) Save as in these Rules otherwise provided, it shall not 
 be competent for the plaintiff to (x) discontinue the action 
 without leave of the Court or a Judge, but the Court or a 
 a Judge may, before, or at, or after the hearing or trial, 
 upon such terms as to costs, and as to any other action 
 against all or any of the defendants, and otherwise, as may 
 seem fit, order the action to be discontinued, or any part of 
 
 55' 
 
 
 <^ 
 
 
^tmrnm 
 
 572 
 Rule 641. 
 
 Former 
 jiractice. 
 
 *x- 
 
 ^!R> 
 
 ^% 
 
 Hcojiu of 
 
 present 
 
 Rule. 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 the alleged cause of complaint to be struck out. .J. A 
 Kules 170, 170/>, 172. 
 
 .Sulwtiintijillv till' same as the Kiip. R. 1H75, <). 23, r. 1, and .luiic ]87() }; 
 (1S83 R. 2!t(», 2!H'), 10, except the words in l)racket,s. 
 
 At (r) the original Rule 170 had the words " withdraw the record or." Tin- 
 omitted provision is made a part of Ittth' (>70. 
 
 Under the former Chancery 'jiractice, the plaintiff miglit dismiss his bill 
 iigainst the defendant at any time befortf decree, on pi-'ici/ir. Tiie disiiiissai 
 was with costs ; hut wiiereno answer had been filed, no costs had been ineurrol. 
 unless perliaps instructions to answer: see /tissH v. Slmrhmt, 8 P. \{. 211. On 
 s|)ecial ai)i)lication dismissal might he. without costs ; but after deercc thcliill 
 could only be dismissed by c(m.sent : where, however, the decree was for tin- 
 benefit of other [R'rsons besides the actual parties to the suit, ('.//., crwlitnr-i 
 it could not be dismissed even by con.sentof tlie parties : Anilnri/ v. ThwMw, 
 t> P. R. 100. 
 
 Tn the Connnoii Law Courts, the plaintiff might disconriniie iiis acck'U 
 at any time before judgment iii)on payment of costs : 2 Arch. 12tli cd. 14s;>; 
 Harrison's V. L. 1'. Ant. (i34. Hy' Reg. (ien. T. T. ISoli, N'o. 24, tin- 
 consent of the defendant wa- rendered \innecessary, wiietlier liefcji-t- or aftti- 
 plea, but the discontinuijig rule was required to contain an uiKlcrtakiiij,' dii 
 the part of the plaintiff to pay tlie costs, and a consent that, if tiicy wcreimt 
 paid within four day.- after taxation tiic defendant should be at lilH-rty tusii;!! 
 judgment of /'"/' iims. IJefore that Kule consent was necessary in order t.p 
 discontimu.' after plea. Tlie rub- was a side liar rule l)efore verdict or .irgi;- 
 ment of demurrer ; in other cases a motion was necessary. Tiiediscoiitiiiiwiu-'- 
 was an abandoinnent of a [lending action, liut it left the iilaintiff at liln-rty t- 
 commence another action for the same cause. Discontinuance was not ctfi-c-tua! 
 until liayment of costs: Kil'jiiiiildti v. Pi-niithivai, \ Dowl. P. C. l.")2; ami it 
 the costs were not paid, the defendant's only remedy was tu sign jiKlgiiiclit'il 
 
 llltll J)iii.s. 
 
 Tlie jireseut /tuli' besides allowing the plaintilT as formerly to disL-oiitim r 
 the whole action, authorizes the withdrawal of a part of iiiseaiiseof com]ilaiiil: 
 formerlv, the discontinuance could only be of the whoh? action : Hfitfcn v. 
 I'<ill:ln('ilii,nii', l(i M. & W. H. 
 
 The power to withdraw part is, however, only wliere the part is st-veralili- 
 from tlie rest of the claim : liinih of Lnnilon v. iiinirniitcf Co., 12 P. K. 4!l'.l. 
 
 It hasbeenheldunderthe Irish.Tud. .\ct, that inan.action against severaldcfcn 
 dants a notice wholly discontinuing the action as against some dtfi'iidaiits > 
 irregulai' : and that the proper -jiMrse in such case is to apply for leave to with 
 <lraw the cause of complaint as against such defiMidants, whicii will In- j;raiiti-'i 
 where the causes of action against such defendants are alternative, and ilistiliit 
 from the causes of action against the remaining defendants : ('iii-li.-<lf v. /V/M-' 
 HoKi-il. •■/,:, 10 L. R. Ir. 3(i. 
 
 And in Out. it has been lield that a plaintiff canimt serve notice of disc-nn 
 tinuance against one of several defendants ; and that his proper course is t" 
 obtain an order for leave to discontinue against such defenilaiit : F().f\. 
 l/ami/toii Pnn: .l- L. Soe., !) C. L. T. 11»7. 
 
 The words " before taking any other proceeding in the action ' mean "liefiiri- 
 taking any proceeding with any intention of continuing the action." ami do imt 
 include a step such as taking money out of Court or bringing in mom-y in suti*- 
 faction of a connter-chiim : Spiiiirr v. Wtitfx, 23 t^. B. 1). 3.')0. 
 
 'I'he )>laintifT cannot serve notice under this Ruli' on an infant uiitila giianii.iii 
 is app-.iinted, and .so escai»e the costs of the action : R"Ht v. T"i/I"i; 7!) h- '■ 
 Jour. 211. 
 
 On a motion to set aside a discontinitanc*' as irregul-»r, leave uiis graiitt-d ti' 
 ili.scontinue on proper terms on a cross-motio!i of tlie plaintiff: >'/'i/'"' * 
 (ixjhhui, 20 L. R. Ir. 32. 
 
! -W 
 
 DISCONTINUANCE. 
 
 573 
 
 Form of 
 notice. 
 
 discoii- 
 tiuiiaiice. 
 
 Tilt' preseiit Rule does not permit the plaintiff to discontinue liis action after Rule 641. 
 it has lifcii entered for trial : Matthcwx v. Antriil.ns, 4!t L. .1. Chy. SO. Leave 
 must ill siic'ii ease be obtained under clause (c) or Hi'/f (("((. 
 
 Tilt' discontinuance is oidy of rijfht, either liefore defence put in ; or, if 
 defence is put in, before taking any step other tiian an interlocutory application. 
 
 If tlie statement of defence sets up matters arising after the issue of the writ, 
 the truth of wiiich the ])h>iiitiff cannot deny, and which afford a good answer 
 in law, the i)laintiff's jmiper course will be, not to discontinue, but to enter a 
 ^jimfession of the defence under Itulc 44(t. 
 
 The f(inu of di.scontinuance will be found in the Appendix Konn, No. •2!>. 
 
 Under the Kiiglish }»ule (which does not contain the words as to the notice 
 Inini,' tih'.l and served), it Wiis iu'ld that a written notice by tile ])laintiff"s 
 ^(ilieltiir as follows; " We are instructed to proceed no further in the action," 
 was 11 sutticieiit notice : Tin J'tmuiit nnnd, 4 P. D. I'.l."). 
 
 .\ discontinuance filed by a plaintiff has been held not to have the effect Ktt'ect of 
 iif (hsedutinniuf,' any couiiter-claini set up in the action : McHdirun v. Miildli- 
 friii, 11 ','. !'>. 1*. 4(14, over-ruling Vafixxiur v. Kruii/i, 1.") Ch. 1). 474; but an 
 ajipeal \>y the [diiintilf will lie thereby discontinued: ('iiiiiilniirc v. Lciii.i, 13 
 I'll. I). 4li'.i. W here, howexcr, a plaintiff who had given an undertaking as to 
 'iiuiiajres discontinued his action, it was held that the (Joiu't would never- 
 theless direct a reference as to damages: Acuvoiiitii v. Cnnlxiin, 7 Ch. 1). 
 
 :(i4. 
 
 The defendant has an alisoluteright to all costs of the action, and they are not Costs, 
 ill the discretion of the .Judge under Rule 1170 : see Tlif St. Olaf, 2 P. I). 113 ; 
 Thi J. H. Hi iikm, 12 P. 1). 10{). The costs will include costs made costs in 
 the ciuise on an application on wliicli the plaintiff succeeded : Thi- St. (>/<if, 
 .siijird. 
 
 Leave to disciintinue is only granted on pavnient of the costs: Tin J. H. 
 ll,,iki>,Viy. 1). KMi. 
 
 The defendant is entitled to costs tliough the plaintiff discontinues before 
 apiiearaiice : Mooir v. ^S'. Counties, etc., /{(ink, W. A. liS8!(, laCi. 
 
 Costs of work in prejjaring, briefing, or otherwise relating to affidavits, etc., 
 pi'o|)erly and not prematurely done, down to the time of discontinuance, are 
 taxable: Jliin-ixDii v. Lcutncr, 1(5 Ch. D. nvA). 
 
 .\ii order of a Ma.ster which stayed an action on ])ayinent of costs, was 
 varied liy substituting the word '* disc<mtinued " for " stayed,"' to prevent the 
 l«issil)ilitv of the action being again proceeded with : Anon, \V. N. lS7(i, 40; 2 
 Chad. Ch. Ca. ;W. 
 
 Where on a motion under the Kng. Rule corresponding to ii('/<'73!l the defeii- 
 'laiitwas ordered to jiay money into Court as to part of the claim, and was given 
 leave t: I defend as to the remainder, and the plaintiff afterwards discontinued, 
 the costs were iield to be not governed by this Rule, but were in the discretion 
 iif the Court under iJc/c 1170, and plaintiff was given costs ui> to the time of 
 liayineiit into Court : Sucklinn v. (Jahb, 3(> W. R. nri. 
 
 In a test acition, the jilaintiff asked for a iK)stponement of the trial, or that an Discon- 
 iirder for discontinuance might l:)e made; the Court held that it could not tinuance 
 regard the rights of the plaintiffB in the other actions, but must act as if by leave. 
 the Jilaintiff had not appeared at ttie trial ; and dismissed the action : Rolmmon 
 y. Chadiiick, 7 Ch. I). 878. 
 
 Where a case had been referred to arbitration, and the arbitrator found in 
 lavor of defendant as to all but a small part, the leave to discontinue was 
 refused : ,Sl(,hlnchmi<lt v. Wnirurt/, 4 (^ B. I). 217 ; see also Matthnrn v. Antrobu.s, 
 WL. J. Chy. 80. 
 
 On a motion for leave to discontinue, the Court has no jurisdiction to give 
 the plaintiff any costs where the defence, if indisputed, ur if it were establisnefl. 
 wimld dinentitle the plaintiff to maintain the action : Lambton v. I'arkUison, 3.'i 
 *V. K. .'Ho; see also Dickx v. Yatfx, 18 Ch. D. 7«. 
 
 I » 
 
 
 
 <^ 
 
 <^ 
 
 ^ 
 
674 
 
 MISCELLANEOUS PROCEEDINOS. 
 
 &»2*643 tt-AS. A defendant may, with the leave of the Court or 
 wit'ii- a Judge, but not otherwise, withdra^v his defence or countei- 
 Iteieme '^ claim, or both, or any part of either or both, upon such 
 terms as may be imposed. J. A. Rule 170f. 
 
 Siniie ill cttVct a.-s tlif Kiig. R. ^X7'\ O. 23, r. I (1S83, R. 21M)). 
 
 ''i' ' of the (Iffendiiiits, in an action for tiie rccioverv of land, was all(.\VMlt() 
 .' ' his (li-feiiLf after the action liad lieeii in tiic iiaper for trial, Imt had 
 
 ' •• '" "oiicd till aiiotlicr a^^tioii ivlatiiijf to the same property slunildlierwuly 
 I . vl. ,.()n the terms of j,'iviiig- to the plaintiffs all the relief to which tliiv 
 Oitain be eutitled at the trial, aiul )>ayiiig' the costs ix^casioiied by the defciKi', 
 and the costs of a suimiioiis for leave to withdraw : Rat/ rl- I'ersuKnl .idi-nmf 
 ' 1. V. Mi-Ciiriiiii. 1! Ch. I). ISS. The costs only which were occasioned cxilu- 
 sively ''V the i"' • <-e were allowed : //<. 
 
 A del. in, • 
 drawn: ir/Zi,'). \. .'' « •■^'/i, 2(M 'h. 1). (17 
 
 As to witlidrawiil of defence of infants, see FH'Amlfr v. 
 VA\y. ,S3 ; >l,inhi,r v. Ti'iili,,;/, .'W W. R. 473. 
 
 Ml frail' deiitlv and without authority was allowed tohe vitli- 
 .'' -s^-/(, i'lM'h. 1). (172. 
 
 \\'(ili'rhiiiixi\ ,")2 L. .1. 
 
 Leave to 
 
 COllipOlllKl 
 
 penal 
 actions. 
 
 Leave 
 when 
 Rranted. 
 
 Where 
 action by 
 informer 
 will lie. 
 
 17. CoMPouNoiNG Penal Actions. 
 
 64i<. Leave to compound a penal action sball not be 
 given in cases where part of the penalty goes to the Crown, 
 unless notice has been given to the proper officer, but in 
 other cases it may. Uiiles T. T. ISoG, i)5. 
 
 l}y 18 Kiliz., c. .">, s. 3, no [lenal action, b\' a coniuion informer, can lie com- 
 promised without the leave of the Court. This statute is in force in this I'm- 
 vince : Jthrl.r,' •:. Mn/rrs, li V. V. *l. 15. 134. 
 
 Where the Crown is concerned, the consent of the Attorney-(ienenil imi^tljc 
 lirocured : llnvuril v. Sih'Yi/ii/, 1 Taunt. 103. Leave is not necessary in iicticms 
 liy the party ajrgrieved : Kli-I.ldini v. Whcili'ii, 1 Salk 30. It is entirely in thi' 
 discretion of the Court to jfrant it, or not : MhikjIkiii v. Wnlhr, 5 T. R. !W; 
 Shfhhiii v. M iiiiii'iifil, '} Taunt. 2(>S. Where the sum offered is so siuall ;».•< ti« 
 indicate CO liision, leave will 1m' refused : Wimi/ v. t'li.s.sin, '2 W. 151. ll.")7. Leinv 
 will not be jjnmted until after the statement of defence : A'''' v. ('ii//iiu; 2ll(iwi. 
 481 ; and see R'- v. <V/s/,, 1 15. k Al. 282. 
 
 Leave was given to compromise a penal action brought under 32 Hen. .S 
 c. 8, for buying pretended titles, on paying the Crown's share into Court: M"'! 
 '/. t. V. iM'irlrl.; .-) (J. S. 77. 
 
 A promise founded on tiie comt>roniise of a penal action without the leave uf 
 the Court is void : llml v. .l/-'/ov, 7 V, . C. <^ 15. 410; and see Ihll \. lihlil,}!, 
 10 Out. Ap]i. 544. 
 
 An action for a i)enalty imposed l)y a statute cannot be brought by iiceiiiiiiHii 
 informer unless tiie statute imposing tlie penalty so jirovides either e.vpnssly.ur 
 by implication : /<<'-,//,/(/,/// v. clurl.i', 8 App. Cas. 037 ; 48 li. T. N. .S. tisi ; :,:' 
 L. J. <i. B. .Vi.V 
 
 Where tlu' statute does not aiithori/.e an action by a common iiifiniiiiT. tin' 
 penalty can only Im- recovered in a proceeding at the suit of theCIrowu : /''.:l)ut 
 see tS/irii/li'i/ v. ZV/yZ/ir, 4 Out. 3!Mi. 
 
 An action to recover a penalty cannot be brought by an infant by his next 
 friend, it must be brought by tlu^ informer in iierson or by his sulicitnr; 
 (Itirrett v. Buhertx, lo Out. A|>i). Or)0. 
 
 The Court refused to set aside a judgment of /("/' /;n« regularly sigiicii ni'' 
 penal action : Mrrinti<iii„ v. M,L>'n,l, 8 U. C. L. J. 233 ; 3 V. R. 13. 
 
 A plaintiff may be non-suited in a'/'" '"'" action ; Riuiixmi v. Jiuii's, 21 I . C. 
 y. B. 370. 
 
DISMISSAL OF ACTIONS. 
 
 575 
 
 The Court or 11 .liidge, and thn Lieutenant <4<'V 
 [Kiwertovi'iiiit penalties i""""""! i^'- >'"v v,.t ..f t\, 
 wlidlly, or in part : see I 
 |K)Wcr to remit (Mists ineunt 
 
 t>, and the Lieutenant (Governor in Oouncil have now Rules 
 « ini|H)sed by anv Art of the Province of Ontario, either 644-646. 
 R. S. (>. 1HH7, (•! !H(, SM. 1, ;{. Tliey hiive, iiowever, no 
 lurit'd up to the time of tile remission : //<., s. 4. 
 
 <»44. The order for compounding any qui tarn faction Oj''|«j"'^o^'^ 
 shall t'X|)it!SS therein that tlie defendant thereby under- inn. 
 takes to pay the sum for which the Court has given him 
 leave to compound such action. Bules T. T. 185G, 96. 
 
 The pivyiiient of sueii sum miffht formerly lieiMiforced l)y attaclmient : Bi'ijinn 
 V. Clifl'fii. .") T. K. -'u : liiit see now H. S. (). c. (17, ss, (i, S. 
 
 <>45. Where leave is given to compound a penal action, ^"^f^''.^ 
 'le Queen's proportion of the composition shall be paidotcom- 
 i!ito the Accountant's Office, for the use of Her Majesty. i'"^'*'°"- 
 llules T. T. 1850, 97. 
 
 See Ilivii-ii. V. Ili'ilii/, 4 Hiirr. I!t2it. I'resuniiilily thr money should lie jiaid 
 into tiie Aucountant's ottice in the same manner as otin i- moneys are jiaid into 
 Court : see /?((/'.•< KiH (t Kiy. Hy tlie order authoriziiif,' the action to Ih? coni- 
 INiuiuled. or liy some siihseciueut order, provision should 1m' made for jiaynient 
 ipiit of the money to the Provincial Treasurer, or other puhlic officer entitled to 
 til receive the siime. 
 
 18. Dismissal of Actions. 
 
 640. If the plaintiff, being bound to deliver a statement |,^f ^eu ®n' 
 of claim, does not deliver the same within the time allowed on piain- 
 for that purpose, the defendant may, at the expiration offauit.^*' 
 such time, apply to the Court or a Judge to dismiss the 
 action with costs, for want of prosecution ; and on the 
 hearing of such application the Court or Judge may, if no 
 statement of claim has been delivered, order the action to 
 be dismissed accordingly, or may make such other order, 
 on such terms as to the Court or Judge seems just. J. A. 
 Rule 208. 
 
 Siiineas tlie Knj,'. If. ISJn, O. L".», r. 1 (1SH3, H. 2<.t4). 
 
 /'(//( S(i!) rejruliites the time witiiin which the defendant is hound to deliver 
 iij'i statfiiient <if chiim. viz., three months after iippearance. The time by the 
 KiiRlisli Hill., is six weeks. 
 
 Tile [iiaitice in this Province has been to make such application in Ciiambeis. 
 hi Kiivfland. it appears to lie a matter for the ojition of parties whether they 
 «ill move ill ('hiiiiibers or in Cotirt ; and, if the motion is made iti Court, it is 
 iunicstioii tolie decided by the Court iti each particular case, whether the motion 
 "lusiuiilfr the eirciimstauces jiroperto be made in Court: Knhia v. Evrhiti, 13 
 ' n. I). i;w. P.iit movinjr in Court instead of Chambers is disapjiroved of: 
 '%:>tir1i,lil V. Iitii<-k\ l;iCh. I). llfS, tiote; Frxison v. Lor, 2<i W. K. l.SH. The 
 ^'I'lMcatidii may be supported by an atfiilavit that a statement of claim has 
 iiiit Ixfii (lispciised with and has not been delivered, and a certificate of the 
 
 lerk or Vicfjistrar in whose office the action i.s, that an a|)])earance has been 
 • iiteml hv the applicant, with the date of entry. 
 
 Wlierc tliM j)liiintiff made default in delivering his claim, and had become 
 iwnkriiiit. it was held that notice of motion to di.smiss under this Bii/r mtist be 
 
 » 
 
 
 
 <^ 
 
 li 
 
 ^ 
 
576 
 
 MISCELLANKOUS PROCEEDINGS. 
 
 'X^ 
 
 
 
 Aule 646. served ujmhi the trustee in l)iuikrii|itcv : ^i'riiilit v. Sin'm/oii Rii. Co., 4 Ch. I). 
 104. In Hiii;iinlioftinii v. AiniKl(/i, .S Cli. 1). L'SS, on ii motion to dismiss under 
 this7i(//»', Hall, V.C, gave a week's time to take further |)rofef'dinj,'s, ohserviiii; 
 that each ease was to deiH'nd <i)K>n its own merits. 'I'lie iilaintiff was ordered t" 
 pay the costs of tlie motion. l'rol)al)ly the plaintiff will in general he given u 
 short further time ujMm i)ayment of costs. 
 
 Some only of the defendants cannot have the action dismissed, if, forsufficiMil 
 reasons, proceedings against other defendants have been delayed, uiul tlii' 
 ap|)licant ought prol)al)ly to a|)ph' to the i)laintiff's solicitor for information ;i< 
 to the state of the cause against tlie defendants : Fatri/ v. Lf(, 12 1'. J!. 371 ^'tw 
 Ambriiist v. Hnlim, 11 Ch. I). Toil. 
 
 A defendant can only have the action dismi-.sed as against iiimstdf : Wnid v. 
 Ward, 11 IJeav. injl. 
 
 It has been said that, if a plaintiff desires to avoid the cost of tlie iiemiiigcif 
 the motion, he should tender to the defendant the costs of the notice, and ^\\f 
 the >i 'ual undertaking to goon : Eitlini v. /■Jn/i/n, IH Ch. 1). VAX; Fnomnw 
 Z/or, 2(1 W. H. 1;<.S : i)ut this is not the practice in Ontario, even where tiic 
 motion to dismiss is merely for a default under this R'/li ; see note to Riili i'A', 
 Tl'.e filing of a statement of claim is no answer to a motion to dismiss : Nnjuimr 
 Tammtrfli, etc. Iti/. Co. v. MflJoin/l, 10 V, l{. 520. The filing wotdil lie incgulai 
 without leave : see Jinlc 3t)!( (r). 
 
 Where before statement of claim an action was stayed luitil the jilaintitf 
 should give secia'ity for costs, and the time for delivery of a statement of ckiiii 
 exjiircd without security having lieen given, it was held that the stay did nut 
 ju-event the action from being dismissed inider tliis Rate: Li( (IrHwit \. 
 McAmlrrir, 4 i}. H. ]). 210. 
 
 Where an order had i)een made dismissing a7i action, unless a statement nf 
 (daim should lie delivered within a weid^, and this was not done, it was held 
 tiiat the action was at an end, the order having neither been complied with 
 nor appealed against, and .in order oould not afterwards be made extending the 
 time for delivering the statement: Wliinllrr v. Hancock, 3 ii, 13. D. .SS ; Bee 
 also Kiiifi V. l>(tvcnport, 4 C^. U. J). 402. JJnt if an order to dismiss is made, 
 further time may be given for a|)iiealing against th;it order: Jlitikrw Rnontn, 
 4 C. P. D. 22(i ; Carter v. StiMix, (> Q. B. D. IKi ; or if the time has not expired so 
 that the action is not gone, there is jiu'isdiction to vary or rescind the order fur 
 dismissal on i)roi)er grounds: Wclphi v. Biihl, 3 t^. B. D. 80, 2.53; Carter \. 
 Stithhs, Kiipra. In Newcomhc v. AfcLuhan, 11 P. R. 4()1, the above cases wen> 
 considered, and it was held that after the action stood dismissed for failure tn 
 tile a statement of claim by the time named, and judgment was signni 
 dismissing the action, an order cindd be made mider Ru/r 485 to vacate tiie 
 judgment, and further extend the time for delivering the .statement of cliiini 
 See also notes to Rule 485. 
 
 Where an (»rder is made dismissing an action unless a statement of claim !»■ 
 delivered within a time named, it has hithertf) been the practice in Ontaric) tn 
 obtain a further order ex parte dismissing the action, showing that the previous 
 order has not been comi)lied with : see Burnn v. C'hinholm, 2 Chy. Ch. H8. 
 
 It woidd .seem that an order dismissing an action does not take effect until 
 it is drawn up and served', and that the action under the English jinictice is 
 not dead until that is done : Metcalf v. Britinh Tea Association, 4() L. T. 
 N. S. .31. 
 
 The dismissal of an action for want of i>ro.secution is not a bar to a subse- 
 quent action in respect of the same matter : Re Orrcll CoUifrii <(• Firehrick Cn.. 
 12 Ch. D. 081 ; Bi/riic v Frere, 2 Moll. 180 : Roberts v. Lucax, 11 P. K. 3 ; thoiijih 
 made on consent, imless it proceed uix)n a compromise of the catise of actiwi ; 
 MafinuH V. National llnnk of Scotland, 3(i W. R. <M)3 ; 58 L. T. N. S. (ilT ; hut tl;e 
 second action is liable to be stayed until the costs of the first are paid : see not-- 
 toiJM/cl245. 
 
 8ee Sutton v. JfuiKjinx, W. N. 1875, 235. 
 
 The i)laintitf sued the indorser of a bill of exchange. The debt was afterward* 
 jMvid by the acceptor, and the iudoraer applied to dismiss t'n action for wantdf 
 
DISMISSAL OF ACTIOKS. 
 
 677 
 
 Vi., 4 Ch. 1). 
 rtlui.HX under 
 fs, (iliserviiii! 
 ihohUtwI t" 
 il lie givcii 11 
 
 forsiifficiwii 
 
 (■(1, lUlll till' 
 
 ifoniiivtimiin 
 '. 1{. 371 ;se,. 
 
 i.lf: \\'(ir(l\. 
 
 he lifiiring iif 
 tifc. and j,mi' 
 I; /'(•"(•'""I V. 
 I'n wliciv till' 
 (• ti) liiil' Ml. 
 iliss : AniKiiiii' 
 1(1 lie im'STiliiv 
 
 1 tlif plaiutitf 
 uifut (if diiiiii 
 (■ stay did imt 
 L(i (iriin'jf V. 
 
 a statement nf 
 tie, it was held 
 CdUiiilied with 
 extending the 
 B. 1). fS ; Bce 
 siniss is made, 
 ukr V. /i''ion(i/, 
 inotexiiiredxi 
 d the order fur 
 253; Carters 
 ovp cases were 
 (1 for faiUire til 
 nt was signeil 
 .j t(i vivcatethe 
 uient of elaii'i 
 
 lit of claim 111' 
 
 in Ontario tn 
 
 at tlie previous 
 
 Ch. «8. 
 ake effect until 
 ,lisli practice ^ 
 itiiiii, 4() L. T. 
 
 mr to a suW'- 
 (• firi'liriclc Cn., 
 , . K. 3 ; though 
 ;ause of action : 
 , S. lilT ; but tl.i' 
 paid : «ee not.i 
 
 ,, was afterwsri* 
 tiou for want of 
 
 '3</i(' 
 
 iinwecution. Lindley, J., said, " I Hhall certuiiily not let tlie action ffo on Rule 647. 
 
 simply to detcnnine who v* to pay the costs. All further proceeding's in the 
 
 •ictidii to Ix' stayed, the defendant to [lav the costs of the writ " : Aimii, \V. N. 
 
 \m, 37 ; see also Klliott v. '•(inlncr, 8 1'. K. 40!) ; Witlhia v. Fvrd, 1 Cliy. Cli. 
 
 282. 
 
 Though no motion to dismiss is made, the plaintiff cannot regularly proceed 
 witiidut h^avc : see note to /(itlf 3(i!t ; hut the fonm^r practice re(|uiring a Term's 
 notice to lie given, where a year has (dapsed witiiout a jiroceeding having been 
 taken, is not continued under 7'hc Jtulicutnrc Act : liunrr v. liixiriimnn, '.I 
 I'. K. 'I'M. For a similar restriction u|)(in moving for judgment : see liule 7o2. 
 
 In England a formal judgment for defendant's costs is signed upon the order 
 for dismissal : Cliitty Korms 18!); Ijutinthis I'roviiice the costs may be recoverod 
 under tiie .ludge's order. See link HWi. 
 
 U47. If the pleadings are closed six weeks before the wium 
 commencement of any sittings of the High Court for which a!,'[.s'nit 
 the plaintiff might give notice of trial, and he does not give ^'j^^'^.jJ^'J^''^* 
 notice of trial therefor, the action may be dismissed for 
 want of prosecution. J. A. Kule 255. 
 
 Not the same as H. Su)). C. ,Fune, 187(>, R. 13, (1883, K. .3(1). This is some- 
 what analogous to the mode of jiroceeding under section 24ti of tile V. L. P. Act 
 (K.S. 0.1877, c. ;')()), imt simpler, and corresponds substantially with the former 
 Chancery practice. 
 
 Tlie six weeks is not a time limited for "doing any act" within linh' 48."). It 
 therefore cannot lie alu'idged under that /.'/'/(, and the lapse of this jieriod is an 
 ahsoliite condition iirecedent to the right of the defenilant to give notice of 
 trial : Suitmler.t v. Puirleij, 14 Q. B. D. 234. 
 
 Tliere is a continuing duty <ni the plaintiff's ])art to give notice of trial until 
 tiie case is tried ; hence, although he lias given a notice, hut the trial for some 
 rcjwion is iiostpoiied, the defendant mav movt to dismiss under this Rule if the 
 jilaintitf makes default in giving notice of trial for any suliserpieiit Assizes; 
 Vhipmnn v. Smith, 32 C. V. rwo ; llihriiiliin Jlon/: v. /I'lnj/ir.i, 10 L. H. Ir. 1.5. 
 
 Where tiie case had gone t(j trial twice hut tlie verdicts had been set aside 
 it was held, under the corresponding Irish Hule, which is s.anie as the English 
 Rule, that the defendant could not move to dismiss, and could not give notice of 
 trial himself, hut must resort to the old procedure of trial by proviso : Fnutt v. 
 ISi'iiu, 1(1 h, |{. Ir. 247. This case will not he applicable in Out. in view of 
 Rulc.i 3, {\'A and ('.47. Si'e also Crn/.- v. J/nrMt, in note to Jltik (iC.l. 
 
 Where a case was made a rcminiii, formerly no notice of trial need be given. Ueiuaiict. 
 A case was hidd to bf a, re in it mi where, liy verb.al order at tlie trial, it was 
 "ixistlKined till the Autumn assi/es " : /),rin,niii v. liniilthir, 10 P. R. Wl. 
 Notice is in such ca.se now nticesisary under Ruli {'~t\ii. 
 
 On a motion to dismiss, some excuse must be given for the default, the sutti- Motions to 
 ciency of which will depend upon the circumstances of each case. Cliy. (ien. (lisiuiKK. 
 Order 27(') was held to be aiiplicahle to such motions : nnch' v. Mnrnii/, il P. R. 
 V.U ; and though that Order is not expressly c:ontinued in tlie Hitli-s the iiractice 
 iirigiiiated under it and acted iiiion niider the origin.'d liulis will jn'ohably he 
 held to ajiply. That (leii. Order was as fidlows : 
 
 '■270. \\ here a defendant is entitled to give notice to dismiss, it is not to he Cliy. Order 
 sufficient answer to the motion for the plaintiff, after being served with the 1270. 
 notice to take out and serve an order for amending the hill or to file a replica- 
 tion, or undertake to sjieed the cau.se ; hut it shall he necessary for the plaintiff 
 to shew that he has iirosecuted the suit with diligence, or tliat under all the 
 iireumstances the hill slioidd not he dismissed." 
 
 llumgh an undertaking to sfieed the cause is therefore not a sufficient answer 
 oii motion to dismiss for want of lu-osecution, (though it is otherwise in Eng- 
 land : Kce.ii,ii v Kirli/n, 13 Ch. 1). 138 ; Fmi.son v. /,."■, 2(1 W. R. 138) it is .still 
 
 J.A. 37 
 
 
678 
 
 Rules 
 648, 649. 
 
 ^i 
 
 Uefnsiil t( 
 be (ix- 
 aniiued. 
 
 Transfer- 
 rin!,' IK • 
 
 tiOM'. 
 
 MISCELLANEOUS PliOCEEDlNOS. 
 
 (liscrctioniiry witli thu •hulKe to Hay wlietlifr, inicU^r all the circuniHtaiiceH, the 
 (icticin should 1h^ (liMiniNHcd ; linrkr v. Miirrni/, .iiijini. See also Xnintnee 
 T(iinw<>rth,(tc., R//. v. MclJuncll, 10 P. R. TiLV* ; i'urtrr v. Iinrkrr, 11 |». H. 1, 
 
 The former decisions (inder the Cliancery jn-actice will therefcjre pruliablv 
 serve iis authorities as to what is a sutticient excuse : see cases in Holiiiwun i 
 .loseph's Diffest, iip. 2!t22, el .ifi/.; Fiitneijuii v. Kccikdi, 7 1'. K. 3Hi) ; and as to 
 what amounts to waiver of objection to the delay : Cultoii v. lliidijer.i, 7 P. K 
 4-S,i ; see also Miles v. A''"', 20 C. L. J. 113 ; 10 1*. K. 218. 
 
 Where an action was onlered to he disniiosed unless notice of trial was piveii 
 l)y a (fiven time, .md hy mistake of the solicitor's clerk notice was not (;ivi'ii, a 
 Jiid^e refused to extend the time and the Divisional Court refused to iiitcrferi' : 
 <>ildii- V. Miirriaoii, 30 \V. 1{. 81i">. 
 
 Where the action was i)rought on aground for which no action lay, tiic plain- 
 tiff l)einK i" default under this /tiilv, indulgence was refused an<i the action 
 dismis.-setl : CAoV.r v. ('reii/hloii, 13 P. 1{. 113. 
 
 ^^'ilere one of several defendants in an ivction has delivered his dcfiiico, and 
 the time for the plaintiff to deliver his reply to such defence has exjiiicd, liut 
 tlie plaintiff lias, without tiie knowledge of that defendaiit, agivcd in 
 writing with the other defendants to extend the time for didivcriiig their 
 defences, that defendant cannot move to dismiss the action as against iiiin 
 for want of prosecution, the pleadings not yet l)eing "closed;" and it was 
 said, tliat a defendant's jiroper c;mrse is to write to the |)laintitf's sdlieitor, 
 and in((uin' how the action stands as regards the other defendants : .imhri'W 
 
 V. /uri;/,!, 11 c:;h. ]). 7r)!i. 
 
 A motion to dismiss, or tiiat the jilaintiff give security for costs, w.as made 
 in Wilhir.ll V. Fr,r/i<,ltl, el,\, 2!) Sol. .lour. 38"); 33 W. H. iw4 ; ;-)2 L. T. N. S. 
 713. 
 
 iHH. If a plaintiff refuses or neglects to attend at the 
 time and place appointed lor bis examination, or fails to 
 comply with any order for discovery or production or 
 inspection of documents, the defendant, in addition to his 
 other remedies, inav move to dismiss the action. J. A. 
 llule 236 ; Chy. 0. 145. 
 
 The other remedies referred to in this /{it/e are the exclusion of the d(x:n- 
 ineiits which the jdaintiff may have refused to produce, as evidence at the 
 trial, and the committal of the jdaintilf for contempt : see Hiilcn 4!)!l, .OL'O, and 
 notes. 
 
 ID. Th.vnsfku and CoNsoLin.\TioN OF Actions. 
 
 4»40. A'itions may he transferred from one Division of 
 the High Court to another Division by order of the Tresi- 
 dents of sucli Divisions, J. A. Eule 392. 
 
 The Kng. H. 1875, O. 51, r. 2 (1883, K. M% gives this authority totheLonl 
 ('hanceUor, with the consent of the Presidents of the Divisions fri'iu .■uul to 
 which the transfer is made. In Kngland the order is imule by the Chancellor 
 on Written consent of all parties, or on notice : //uiiiiihrei/.t v. EdminU, 4ii 
 L. J. Chy. 112; W. N. 1875, 208 ; 1 Ch. D. 41. It applies to transfer of \wi\- 
 tions, tliough actions alone are mentioned in the linlc : lie Jio.'/'J'n 7V«.s/.«^_l 
 Ch. D. 12 ; see also Ciiniiot v. Morwii, 1 Ch. D. 1 ; Warnv v. Jhll, W. >•, l''^' 
 25!( ; Johiimn v. Jfofiatt, II,., 21 ; Ai\i>i>, Hi., 22; Hilliium v. Minihcu; 1 Iw. D. 
 132; Hnlhnmii v. Yi>rk\ 2 Kx. D. .'333; (Iva. Steam JVai: t'u. v. jMndon <C A"';'' 
 hiif'ili Shippiwi Co., W. X. 187(1, 5(1; 2 Cliarl. Ch. Ca. 07; Clements v. iVomx. 
 W.N. 1878, 4; .Stureii v. Waddle, 4 q. B..D. 28!». 
 
 In Ontario the jiowers of transfer formerly possessed by the Courts nnder 
 Oat. J I'd. .let, AWy, s. 20, are not i)reserved in the Revised Act or Hides. Ini 
 
 The 
 
 lUlS- 
 
TllANSFEU OF ACTIONS. 
 
 579 
 
 Htaiici'H, the 
 
 iO MtljKllUt, 
 
 [ F. K, 1, 
 re pniliftblv 
 
 HdllillHtiU & 
 
 5 ; and aii to 
 UTS, 7 P. R. 
 
 al was givi'ii 
 not (,'ivi'n, a 
 to intf rfere ; 
 
 ay, the iilaiii- 
 i(j thi' uetkm 
 
 (U'ffncii, awl 
 ; ('Xiiirwl, Imt 
 t, at,'rft'(l ill 
 ivt'i'iiig theiv 
 i iiKaiiist hull 
 ■■ and it was 
 itf's sdlicitor, 
 its: Amlimn- 
 
 ists, was made 
 )2 L. T. N. S. 
 
 end at the 
 
 or fails to 
 
 (.1 action or 
 
 tion to his 
 
 ion. J. A, 
 
 ,11 (if the docii- 
 vi(h'iict' at thf 
 .,s 4<,lll, r/JO, and 
 
 IONS. 
 
 Division of 
 the Fresi- 
 
 ity to the Lorf 
 lis from ami t" 
 10 Chaiicellor 
 
 i-aiisfer of iwti- 
 „,/,/-.s 3'/v(.s/,t, I 
 ,//, W.N.WT^. 
 nihcn; 1 Kx. «• 
 
 aent!^ v. Norm. 
 
 liurts und.T fh' 
 . Raks. Trans- 
 
 his will iKiW he inivrle nndor this Jiiih\ or Riilri^ (iflO, and (iSl. In practice Rules 
 transfers are not fn'(i'iniit, oxcopt for tlio jmrpoHf of (■(^iiali/.ing' hiisineHu, or l)y 650, 601. 
 reason of the fxistMico of Moum cause of disciualification, in the .1 Ufljfcs of the 
 Ijivisjon in which the action is. 'J'iic inaeliiiifry for disposing' of all sorts of 
 actions is now i)econiinK', and is supposed to be, the same in all the Divisions, so 
 tliat transfers to the Chancery Division for the takiuK of acccnints are not niiule 
 as they are in Kngland : see '/,(((/(< v. PiilnUm, 31 W. K. K02 ; 48 L. T. N. S. 
 11411 ■ Lisli'' V. ''li'tTord, i'A) L. T. N. S. HitO ; Liiiiilnii Lanil Co., LimiU'il, v. Hurri.i, 
 VHi. IS. 1). 040 ; til li. T. N. S. 2!t() ; ;« W. H. 14. 
 
 The former powers of transfer niipht \w exercised by the Master in Chambers, 
 Imt now liv tile I'residents of Divisions alone; see HiUiitr<( v. Thtimton, 18 
 C. L. .1. 180; 2 C. L. T. 2(J1 ,and 28"), and Jtidr (iuO. 
 
 Where cross-actions with different Tenuos are consolidated, the place of trial 
 will be ordered as the balance of convenience retpiiri's : (Jonii' v. Leitch, 11 
 !'. 1!. i:>'). 
 
 As to consolidation of actions in different Divisions, see Rn/e ()52 and notes. 
 
 O.IO. Tho Presidents of the Queen's Bench, Chancery Presidents 
 and Common l^Ieaa Divisions shall, from time to time assionsYo 
 occasion may require, meet to<:;ether and examine the list "ransfers 
 of motions and other matters set down for argument in "("eruauL 
 each Divisional Conrt of the Hi<j;h Court, and direct the businesu. 
 transfer of such and so many of the said motions, and other 
 matters from one Divisional Court to another as shall, as 
 nearly as possible in their judgment, equalize the amount 
 of business to be done by the said Courts. J. A. Eule 393. 
 
 This lliilr doe-i not recpiire the consent of parties or previous notice to 
 
 tlieiii. 
 
 {(1) Where an order of transfer is made under the fore- Trausmis- 
 going lUiles, the proper oflieer of the Division to which the impers.etc, 
 cause or matter was assigned, shall annex together all the t,'.a"j"/g,*'t'o" 
 pleadings and papers liled with him, and transmit the same, •"■w. 
 together with the order of transference or a copy thereof, 
 to such other office of the High Court as the order directs. 
 E. S. 0. 1877, c. 49, s. 22 ; 44 V. c. 5, s. 26. 
 
 651. Where an order has been made for the adminis- Transfer 
 trationof the assets of any testator or intestate, a Judge ofadminis- 
 auy Division shall have power, without any further consent, order." 
 to order the transfer to such Division of any action pending 
 many other Division by or against the executors or adminis- 
 trators of the testator or intestate whose assets are being so 
 administered. J. A. Eule 394. 
 
 The Eng. R. June, 187(>, r. 18 (188.% R. (w3), applies also to the winding up 
 lit any company under the Companies Act, 18()2, and 18tii), and confines to a 
 •liidge of the Chaucta-y Division the power of making the transfer. The order 
 was made i:r parte in I'itM v. Field, W. N. 1877, !t8, and Mashach v. Andcrgon, 
 -(•W. R. KH); Hvo aha Re Artistic Colour Co., 14 Ch. D. 502; Re Madran Irri'ja- 
 tm Co., IG C'h. 1). 702 ; Rr SVkWw, 8 Ch. D. 154. 
 
 
 •^ 
 
 
 <k 
 
 ^ 
 
 ^ 
 
■■■I 
 
 580 
 
 MISCKLLANEOUS PllOCEKDINOS. 
 
 Rule 603. A tninsfiT iiftfi' jvii ii(liiiiiiistratioii ilfrri'c wiih (Pi'ilcrcd in Wm/s. /^/ir,,,,,,,,,^ 
 W. \. 1S7!», i;i, H4 : mid refused in ('hi'/intnii v. Mitinu, W. N. lS7!), \fA:\\\ 
 Ti. 'r. N. S. li7H, win re tlir cxctMitiir wii* soiiulit 1" lie made |M'rson,ill\ liiilili ■ 
 liutm-c H< Timing, t,v Thinii", \V. N. IMTN 141 ; 'JCi W. 1{. (1!I2, wli.i. tlicactidii 
 was tninsfcn'cd, liut nut stiiyt'd. 
 
 An order i)f triiiisliT .slimild (inlv Iw nuidf iiftcr tin' 
 lieiii, iiiiiili\ und not l)V tl.c iiduiinistintimi (Hilff : Itr 
 L. T. N. S. nd; W, S. liWd, \'y{). 
 
 iiduiiniNli'atiiiii < iidiT /i<i< 
 
 /'iHl/l, /'null \. fltnh'X, 
 
 
 
 ConRoli- 
 (latiiin (if 
 actiouH. 
 
 Several ac 
 tioiiH 
 
 vanio 
 (lofeudiiiit. 
 
 Several ac- 
 tions by 
 same plain' 
 tiff a({aiiiHt 
 dliferent 
 defenilantB 
 
 Cross 
 actions. 
 
 O**):}. Actions in any Division or Divisions niiiy ))o con- 
 solidated l)y order of the Court or a .liid^'o in tiu' iiiuniici 
 prior to " The Ontario Jmlinitiire Act, /(S.S7," in use in the 
 Superior Courts of Common Law. J. A. Rule 895. 
 s.c MiiK'. |{. is;:). <). :>], v. 4 (iss.-f, it. (i.-.(;). 
 
 Tlif cNiirr.-isidn. ('(insMlidatinii of iii'tiutis, is used in two m'mms. i''ir»t, i' 
 plaintitt lirin(,'s two iiclidn- ii^uin.st tiic siinic di'fi'mhinl, fm- ni.illci's \ 
 nii^'iit |ir<>|i('rly Ix' coniliim d in (Hit' iictiim, and tlic dmilili' in'iicciMJing is .• 
 to li(! vexatious, a ("durt of Law, in the exercise of its ordinary jioucr to |). 
 any abuse of its own jirocess, niitrtit consolidate the actions; tliat is to »ay, 
 stay i)r(iceedin(,'s absolutely in one action, and re(iuire tiie pluintitf to iiu'liuif 
 the whole of his lOainis in the other ; and this has iieen done witli co>t'^ iit;;iiii>t 
 tiie iilaintitf ; see 'V, // v. //r/r/'/'^ '-' T. U. fW'.t ; A, 10,1, 1 Cliittv's Ijep. 7lill|ii.]; 
 Itviinlsiill V. Clu'illuni,, K. 15. it \\. '1V,\ ; 2 Chittv's Archbold, p. lOS.",, I.'ltlicd. 
 I'i si'ii., han. I'r., (ith ed., ISHS ; Dan. Forms, ;{ril ed., SKI ; 1 .Seton, Hi".'. 
 
 But the term consolidation is more fre(|uently used in a dillnviit sctbc. 
 Where actions are liroug'ht iiy tlie same plaintiff against ditferent ilcfindimts 
 ' but the ((uestions in dispute in all are s\ibstantially the same, the "unit, if tlii' 
 defendants apply, will stay proceediii),'s in all tiie actions except eiic, until 
 that (die action has lieen determined, upon tlie terms that the variniis defen- 
 dants a(jre(! to lie b(>ini<l by the e\cnt of the action which proccciis. This 
 practice has been a|iplied to the case of actions against the several uiidi iwitcp 
 upon jtolicies of insurance : lit lliniimntrlh v. Jirtnlrrir/,-, 4 A. it K. (i-lll; to tlie 
 case of guarantees of s(q)ai'ato iiarts of a debt iiy separate instruments; Simri' 
 V. Lrlliliriiltje, 4 i\l. (.t (}. 37 ; joint and several ol)liK<Ji's of a bond cenditidnti! 
 for the (ifofxl behaviour of another person : Aiiilrrsi.ti v. TdH'i/dtn/, 1 t^. Ij. :!45; 
 principal and Hureties on a rejilevin bond: liitrtlitl v. AVoV/rV', 1 .Scett, N. K. 
 77!l ; the several members liable upon a mutual insuranci! imlicy : l.tnif v, 
 liurh's, 4 C. B. N. S. 330 ; and several actions inrespect of publishing the" same 
 libel in different newspajiers : Col/ei/iir v. /'//'•, .5(1 L. T. X, .S. li'l; in .vliidi 
 last case the plaintiti' was given liberty, if dissatisfied with the verdict, tn select 
 another action for trial. So, where a number of actions against ditfeniit defeii- 
 (lantH may be reduced to classes, tiiose of each class raising the simie iincstinns 
 the Court may allow otic action of each class to jiroceed, and stay tlici'st: 
 .S'yfjvs- V. I'irL-erKiiin, 27 L. .1. V,\. 5. 
 
 A third kind of consolidation is where there ar(! cross actions between the 
 s.anie parties, arising out of the same matter, and the Court stays one dirpctiiii.' 
 the plaintiff ' . it to bring forward his case by way of defence, set-off or cdiiiitt'r 
 claim in the other action. In such case the party on whom tiie onus of prouf lie> 
 is given the conduct of the |)roceedings, by being directed to ])r(iceed with his 
 action : ThmnHon v. .V. A'. Ey. Co., !) Q. B.' 1). 320 ; see also !%■ Scrrr Iktjmr, 
 !) P. 1). 34. 
 
 There is no fixed ruU' that the action last begun is to lie stayed : Thmman^- 
 S. E. Jill. Co., 30 W. H. 537 ; 4ti L. T. N. S. r)13 ; Milln- v. Cvufalnvlwit kh\ 
 etc., 11 1». R. 241. 
 
 Where an action is commenced that covers the s.ame ground as uiu' ali'P'''<'y 
 existing, together with some further relief, it will be stayed as to the first part: 
 Morton v. ' 'i'ic/>; 2(5 W. R. 441. 
 
 Where the plaintiffs in a prior pending action, claimed .S200,000, IwlaiicefiuP 
 upon a construction contract, and in another action begiinsonic time afterwanls 
 
coNSOLin.vnoN of actions. 
 
 Ml 
 
 I'Uiiiii'il siiiMKi tor j,'i)iicls Mnld 1111(1 (Iflivci'i'd, and tlu' ciiiisc of iictii)ii iirusc licforc Rule 662. 
 tlic (Viiiiini'iii'i'iin'iit uf the first .•ictidii, it wjih licld tliiit tlic t«n cliiiiiis >lii)\il(l 
 have li'i'ii iiiiuli' ill I'lic lu'tidii, and it was a |ii'o|)('i' cxcrcisf of discvt'timi to 
 lY'fii-if juilnincnt and Iimvc tlic (|iiis|joii till tlic di'tcriiiiiiatioii of the first 
 :i(tiiiM ill wliiili a iai'),"' set ntf was claiiiii'd, siin'c in tlif icsnlt of liotli actions 
 iinthin,' iiiik'lit '"' 'I'"' '" •'"' [iliiiiititf-* : <'"iniiir v. <'. I'. It., No, '1, II I'. |{. 
 
 Till' Ma-^ti'i' in < Irdinaiy, lias no jurisdiction to i^oii'-olidatc actions in wliioli 
 iiiilK'iMciits arc filtered, and under \\ liidi seiuirate references are iieiidin;,' in his 
 ,,tti,..; liosv II \. h'riiiit, 11 1'. K. ;57l>. 
 
 \\ jii'ie tlie jilaiiititl' liroii^flit an action for an account in one I )i\ isioii and the 
 ili'fiMiiliint liroiivlit an action foi- a halaiice tlui- on such accounts in another, 
 till' Utter act ion was staved on the defendant's a|i|ilicat ion : litihull \. ('nihil 
 Sind- K'\, \V. N ISSC, I'd. 
 
 \\\ Smith V, Wlurhc 'i-il, '-'l W. K. !tl(0 ; separate net ions hetween ditferent 
 ]i:irti('s rel;il ill),' to the same silliject Were cdliso'i lated. 
 
 Will ic plaiiitilfs liroicdit an action for the same cause of action a- was set up 
 liy tlii'iii, ill a c muter claim in an action in another l)ivision, it was held thtit 
 tliniijfli llir case was not strictly within this /{ulr hecause the plaintiffs ha<l not 
 lir(iu;,'lit two actions, yet there is inheieiit jurisdiction in the Court to prevent 
 uiiiliie use of it-i process and tic plaiiitilfs" action was sta\ed till their coiinter- 
 claiinsliould hedispose.l of : T<n,lnr v. Ilva,lfur,l, \) \\ W. Cll. 
 
 All aetioii for lireaiOi of an a;;reeiiieiit and fraud in the \'.\. I), and across 
 action for sjieciiic performance in the ( 'h. I ). were ordered to lie consolidated in 
 tlic latter action : llnliin'-: v, Ui'n-nj, l.'.') W. |{, SO. 
 
 All application to consolidate two actions liy the same jilaintitf, one for 
 iiialiciiiiis prosrcution and the other for sidarv as a manager, was disiniHsed by 
 (.^liiaiii, ,1., with costs : I Charl. (!li. ( !a. 127 ;' UH \>. T. .lour. Htl. 
 
 Till' application is iisnallv made in Chamliers : see .S'wiV// v. HVV/iAi'on/, 21 
 W. i;. liiin. Chitty .\rcli. KUh ed. lOST. 
 
 'I'lie iirder. «heii niaile on the application of the defendant, does not rccpiirc 
 the |il:iiiitilf's consent : llnlliioisir iiih V. liroil iiiL\ 4 A. it K. tilC. It Kinds the 
 ilifiiidanls ill the actions which are stayed to aliide the event of the one which 
 |iiii(ie(ls ; iiiit it has lieeii held not to bind the jilaintitf to do so ; and that, if 
 till- result of the first action is aj^aiiist him, hi' iiiav proceed with anotluT : 
 . ,.//-• v. .l/(r//,.v../), 1 A. it !•;. (i.V): h"iili' V. ])inn,his, \ I',, it Ad. ty\A. Hut 
 w dwiw V. Cliilihrir/.; <) ('h. I). I.V.I ; and /iiinn/l v Lmil /iii,;i,, o ('. I". 1). 'XV.). 
 .\ I'Miisiilidation order may lie olitaiiied at an\ time after each action has liecoine 
 ■.ii:.i lifinlnis, i.r. when the writ has lieeii served : 'J'/"' llili iislfii, 'M W. H. (illl ; 
 ■^ff ll'illiii'isiri.i-tli V. Iii-('<l i-ii-l.\ sii/ini : It'll V. Slinirnnil, \ Curt. 17H, l!i;{ ; 1 
 
 .M<in, \\ c. ;•..■):(. 
 
 Wlicre two actions commenced on the same day were consolida'ed, and a 
 ilitfi'ii-ufc of opinion arose hi'tween the plaintiffs as to the conduct of the action, 
 till' |ilaiiitill's w ho took the lirst steps towards severance were made defendants, 
 and tilt conduct of the cause was >,d veil to the ot her plaantitfs, thoiiKli their claim 
 was tile smaller in ■•imount ; Ih'lilrn v. SilLsLmr ,{■ Jtuilsirorlh dial it hum Co. 
 mtW. It. !IS. 
 
 TheCiiiirt may re-open the consolidation order, and allow a second action to 
 I'f (lifeiidcil, notwithstanding that the plainlitf has sucueeded in the first 
 iatiiiii. Hut it will require a very sti Hf, ase to induce it to do so. I'rohahly 
 iU'ase iinist lie shown at least as strong; as would he reijiiired to )irociire a new 
 trial ; see F„si,r v. Alir:., H Bing. X. C. «!Mi ; Ce/zrv/ v. liiilklri/, o Tannt. It];"). 
 
 Altlii)uj;li coii-.olidati(m, jiroperly so called, is obtained at the instance of 
 i!"fi'iiilaiits, yel where several ilefendants are sued by the same plaintiffs, a 
 Miiiiiwliat aiialof,'ous proceeding has been ado|ite(l in the converse case, where 
 pluiiitilfs had bidu^jlit their several actions a),'ainst the same defeiulant, to 
 iinyer similar relief in reference to the same ti an.sactions. Malins, V.C., at 
 tlic instance of the plaintiffs, enlari,''ed the time for taking any further .steps in 
 :ill tile actions but one, until that one should be tried: Aiiio.s v. C/iailtrici; 4 
 ''!i. 1>. soil ; and his jiidj,'inent was attirmed on appeal : Ch. D. 4.')!t : see also 
 
 Conduct of 
 ciinsoli- 
 (lateil iic- 
 tiou. 
 
 Ke-oi«!iiing 
 consolida- 
 tion. 
 
 Test 
 action. 
 
582 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 *^ife. 
 
 Bole 653. llodsm v. Richardson, 3 Burr 1478. A like course was taken in /iemietl v. 
 Lord Bur//, 5 C. P. D. S?'\ where thirty-eight actions had l)een broiiglit, and, 
 on the plaintiff's application, tlie i)roceeding's of thirt.y-.seven were staynd until 
 the trial of the thiruy-eightli as a test action, tlio\igh it was said that the inci- 
 dents would or might vary in each case, and tliere would be differences of jjroiif 
 in each, but the gist of the charge was the same in all. 
 
 This course of staying all but one of several actions, will only lie al'owwi 
 where the questions in dispute are substantially the same. Where ([iiestiims, 
 raised by defendants, of fraud and misreprtisentation would neci-ssarily be 
 differen'; and dej)end on different evidence a stay was refused : Nio'/dni I'lmiif 
 Co. V. yellcs, 13 P. R. 179 ; and see *'. (.'. in Appeal, 25 C. L. -J. (J()().' 
 
 The judgment in the test action will not bind tiie j)arties in the other actions, 
 unless the action has been tried out on its merits, upon evidence: .Ihima v. 
 V/utdirick; !) Ch. D. 4.5!). Where, therefore, the plaintiffs in the test action, 
 when it came on for trial declined to proceed, and judgment was tlieu given for 
 defendants it was lield tiiat, notwithstanding tlie Riilf ccn-resixmding to Ont. 
 Mule 707, the Judge had jurisdiction to substit'tte another of the actions , is 
 a test jiction : Ih. In the absence of agretanent, tlie ])laintiff in an action 
 tlm." constituted a test action has no right to be indenniified against costs 
 by the other plaintiffs : Ih. 
 
 Where a test action came cm for trial, tlie ]>laintiff was not prepared to pro- 
 ceed and applied for a postponement, to whicli, under the circunistanees so fur 
 as his own interest was concerned, he w.as not entitled ; it was held that the 
 Court could not regard the rights of the i)laintiffs in the other actions, and must 
 dismiss the action with costs : Rnbinsun v. Chadwick, 7 Ch. D. 87<S. See note 
 to RiUex (541, and G72. 
 
 20. TniAL. 
 
 ^ • With respect to the trial of actions, there are important differences between 
 </ yx.»c<'« the provisicms of the English Judicature Acts and Rules, and the |m)visionsof 
 A the Ontario .\<it and Rides. The latter i)reserve very nearly tlie modes of trial 
 
 t<.-ci£ /'?'/'/($) '" ""*" ''^ *'^''* P'ovince, under The Administnttion of Juxtivr Acts, and otlier- 
 ' wi.se. By the English Rules the trial of an action mivy be in any one of 
 
 the following modes, viz., before a Judge or .Tudges sitting ahme ; or before a 
 .Fudge sitting with assessors ; or before a .fudge and jury ; or befinv ;m 
 official or special referee with as.sessors ; or before such referee without 
 assessors; and the jiarty giving notice of trial may (subject to certain 
 conditions and provisi(nis), clirnwe any one of these nuxles of trial If \v- 
 chooses any mode f)ther than a jury, t\w party sei-ved with the notice may 
 require the trial to be by jury ; Ijiit a .ludge has jjower to order the trial with- 
 out a jury, of any question or issue wliicli might before the Act have Iteen, 
 without consent tried without a jury ; in f)tlier W(n'ds, of any case whicli, before 
 the Act, would jirojjcrly have l)een brought only in the Court of Chaiioerv. 
 The .Tudge has also power, where neither party recpiires a trial by a jury, to 
 order the trial in any other mode than that of which notice has been given. 
 
 In this Province, sections 7(>-H0 of the Act regulate the mode of trial. See 
 the notes to those sections, ])p. 84-80. 
 
 Both tlie Fiiiglish Rules, and the Ru'vh in the Ontario Act, provide for a tri.il 
 Ix'fore referees in certain cases, at the instance of the Coui't or a Judge, and 
 provide also for the Court m' a .fudge ordering the different questions of fact 
 arising in an action to be tried by different iiKxles ; or (me (U' more (jiiestions 
 of fact to Ix" tried before the others : see sees. 101, 102 of the Act, and Kt'l' 
 
 660i 
 
 (i) General Rales. 
 
 653. There shall he no local venue for the trial of any 
 action [except an action of ejectment,] hut the plaintiff 
 shall in his statement of claim name the county town in 
 which he proposes that the action should he tried, and the 
 
 
 f^i 
 
 Venue 
 r.boliBhed. 
 
TRIAL — CHANGING PLACE OF. 
 
 583 
 
 the action shall, unless a Judge otherwise orders, be tried ^"'^ **'• 
 in the place so named. Any order of a Judge, as to the 
 place of trial, may be discharged or varied by a Divisional 
 Court of the High Court. J. A. Rule 254. 
 
 See Eiig. K. ISTi"), (). ;3(), r. 1. The Knp. R. 1K83, K. 425, instead of the words 
 in hnvckets, has "except where otherwise provided by statute," and also 
 provides for tlie case of the indorsement on the writ becoming tlio only state- 
 ment of claim, in wliicji case the place of trial is named by a notice served 
 six (lays after ai)pearance. This cas.i is not provided for by tiie Ont. Biilis. 
 ivheri' no i)lace is named, the Dug. R. provides that the tiial shall be in 
 Middlesex. 
 
 The effect of tliis Ituli has i)een said to l)e to abolish all local venueyi an well 
 those ni;«le so by statute, as at the Connnon Law, t^\cei)t iictions of i jectment : 
 Lenac;/ v. J'iMin; 10 Ont. (i20. 
 
 There arc, however, certain kinds of actions which, mitler particular Htatntes, ijocal 
 lire (lireeted to be tried in a jjartioiilar place, and it was held that the original venues. 
 Rule L'o4 did not apply to such actions, f.ij., actions for infringement of |)atents 
 under [{. .S. C. c. Ill, s. 30: U'oldxmith v. WalUm, !) P. R. 222; Aitchrnon v. 
 Mann, Ih., 2.')3, 473. Other instances are, actions inider I'lie CiiHtoms .\ct 
 (R. S. C. c. 32) s. 47 ; actions for anything doni^ in tiie administration of the 
 criminal i.iw ; see K. S. 0. c. 185, s. 1 ; c. 151, s. 24 ; actions .igainst justices of 
 the |M'ace for not returning convictions : R. S. (). 1887, c. 70, s. 4. 
 
 In actions for ntcovdry of land the trial must itrhii't picic take place in the 
 county where tlie land lies, liut the writ may issue from the proper oftice in any 
 county : <'itiui<l(i Pcniinnnit L. <(■ S. ('d. v. Fo/cii, P. }{. 273 ; so also an .action 
 for assijfnnient of dowir : Mc('nlli)ch v. Mv< 'idlorli, 4 C. Ij. 'i. 252. 
 
 Tlie plaee of trial in actions of ejectment may l)e changed ; see Ri'fp (1,53 (a). 
 
 An action by a mortgagee for foreclosure payment and ])ossession is not an 
 action of ejectment within tiiis Rule, and the venue therefore need not Ik; in the 
 county wliere tiie lands lie : Sri/monr v. iJe Mitrxh, 11 P. R. 472. 
 
 In f'liann^ry no actions were local, al' were transitory. At Common Law Clianeing 
 some actions were local, and some transitory. In a local action the venue had place of 
 to l)e laid in tiie county in wliich the caiise of action arose, though the trial ti"'*'- 
 mifflit l)e ordered to take place elsewliere. In a transitory iiction tlie plaintiff 
 iniglit lay liis venue where he pleased, siiliject to tiie iiower of the Court or a 
 .bidge to order it to 1h> ciianged. The practice as to changing tlie venue was, 
 that either i)arty might apjdy for an order for that purpose. The plaintiff, if 
 the application was liis, had to show reasonable ground for the change, iind if 
 tiie ajjplication was the defendant's, the defendant had to show distinctly a 
 lireponderance of convenience in favor of trying where he iirojjosed, instead of 
 where the venue was laid : Church v. littrmit, L. R. (i C. P. 11(5. 
 
 Tile |)i'esent Ri'lf, like the similar one in Kngland, applies in all Divisions : 
 RfdmuiiHc V. y<ni://iH,i, 24 W. R.083; C/arkc v. O'ok'xim, 2 Ch. I). 74(». The 
 question for decision on any ajjplication to change the place of trial i,, wiiere 
 can the action most conveniently be tried? : (iireji v. Siihhtll, 12 P. R. 5.57 ; 
 TaiiluT V. (Ii-diit, !» C. L. T. 140 ; and the matter is left in the discretion of the q^ ground 
 Judge, to be exercised according to the balance of ccmvenience, and it is ffir the of balance 
 defendant to show a preixinderance of convenience to oust the plaintiff's right of con- 
 to fix tiie place of trial : I'litiit v. .\<irminiUm Iron, <■/<-., Co., \\. N. 1870, 105 ; venience. ' 
 Wix'd V. A'-iy, W. N. 187!t, 200 ; Sriiro,/,;- V. M>/n:s, 34 W. R. 201 ; approved 
 and foUowed in Jt'ifm v. C. P. Ri/. C'>., 12 P. R. 220; and JVir/iolson v. Untini, 
 ik, 223. This was in effect the jiractice in Chancery formerly : Xmid v. Xnad, 
 <) 1'. R. 4S. Tiiere is not unanimity amongst the .Judges in this Province as to 
 the weight to be given to tlie ]>lace where catise of lu^tion arose, in detennining 
 the place which is most convenient. This had formerly little weight in Chan- 
 cery : ,V<.(((/ v. .Vri(((/, Kiipni ; but was an inii)ortant element at Common Law : 
 llnrinr v. Sniilli. 1'. H. !) ; Uilmmir v. Slrirhluiiil, P. R. 2.54 ; P/ii/iji^ii v. A/i- 
 /■''"'', 7 1'. R. 377. The reiiorted oases, and the opinions of the majoritv of the 
 Judges, seem to be in favour of adopting the former Chancery practice, and 
 
684 
 
 Role 663. 
 
 -i 
 
 On ground 
 that fair 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 of detemiiniu^ the convenience by a consideration of the expense and the 
 witnesses' facihtiea of travelling : see Unviiv. Murriii/, 9 P. R. 222; Rtihertson\ 
 Dii'/niii'iiii, 3 C. L. T. 2m ; W'nlfun v. Widemfiii, 10 P. R. 228 ; Slater v. Purvis, 
 10 P. R. G04 ; /loss v. C. P. Ri/. Co., yirh Isan v. Linton, mtpra ; Taj/lm- \, 
 Grant, it C. L. T. 140 ; but that the jJaintiflf's right to select the place of 
 trial is not lightly to he interferred with, where it has not l)een ve.xatiously 
 cho«en by him. It is impossible, as a general rule, to enter into tlif inves- 
 tigation whether one class of witnesses will be more injured tlian another 
 by absence from home : .\'iiai/ v. yoail, and liarin v. Miirran, miiira ; except 
 in the case of a public officer : Fiskrii, v. Smith, 2 Cliy. Ch. 4!); Fin/;/ v. Fogij, 
 12 P. R. 24!). The ])re|H)nderance of convenience to be shewn by the defen- 
 dant must be considerable. A change will not lit^ made on iieeonut of a 
 trifling difference in exi>ense : see Slt'ircrt v. Jolnintoni', 4 If. C. L. J. 21: 
 Moonrij v. Moiitiri/, (i P. R. 2(«7 ; <tnd Walton v. Wii/cmaii, and other cases 
 .?!t/)nf, es]>ecially if the plaintiff inidertakes to i)iiy the difference in exi)enae; 
 see lirl'ilKun v. .1/<'AV»;.7>', 10 I'. R. 4(M». }5ut differenciMjf expense is of more 
 imiKn-tance in an alimony action as the defendant has to Ijear in any event 
 all the disbursements : Foycj v. Foijij, 12 P. R. 240. 
 
 Tlie fact that the parties and their solicitors and witnesses reside at one 
 place is a case of exceeding prefKinderance, thougli tlie additional expense 
 of trial in a neighbouring co\mty would not bi- large : Scrrn.t v. .SVm«, U 
 P. R. 135. Tlie fact that a change will delay the trial consideral)ly -s a 
 circumstance to be considert-d : ///. A directi(>n to the i>arties to dinclose 
 the names and evidence of the witnesses in order to consider whether the 
 witnesses are material is not i)roper : Ar/nn v. Uuininic, 12 P. R. 3()4. 
 
 Where the plaintiffs resided at Montreal and tlie defendants' ofticei's at 
 Picton, and the plaintiffs had some witnesses resident at Toi'onto, tlie place 
 of trial was changed from Ottawa to Toronto: Cimjtcr v. Cmtrol Ontario 
 Ry. (V>.,4()nt. 280. 
 
 Delay in applying may, apart from all otlier considerations, lie suft'.cieiit to 
 justify the dismissal of a motion to change the venue ; as when- the aeti'in is 
 just about to be tried, and a|)plication might siMHier liave been made: Philijn 
 V. Beall, 2t) Ch. U. t)21 ; 32 W. R. tIC.r). 'I'lie discretion of '.!.> .hidgc as to 
 changing the jilace of trial is an appealable discr<'tioii : Hi. 
 
 An ajiplication is not necessarily luvmatiire liecause issue is joined, if the 
 issues can be determined from the iih^adings : Point/ v. ('oUi, 2!t Cli. 1). 4iS8-!l. 
 
 The plaintiff, having named a ]dace of trial, e tiinot change his mind and naun' 
 a new one by amendment of the statement of claim under Kulr 424 : Hull v. 
 North British, ttc, Co., 10 P. R. (>22. He must apply on motion, and cm the 
 ground of ))repoi>derance of conveniencir : Pomll v. Cohl,. 52 L. T. N. S. IKi. 
 As to whether the omission to name a place of trial in the statement of claim 
 can be supplied liy amendment, see note tii Rule 424, p. 451. 
 
 Sfmlilf, this /i(//<' dfies not give a .Judge a right to interfere with tlu^ pro" 
 cedure in the action, ('■.'/., to change tlie venue of lii>: own niotioii) except at 
 the instance of a party : Bull v. North Briti.'^h, dr., Co., 11 I'. H. Ki. Such 
 motions should not be made at the Assizes ; it is too late then to consider 
 the balance of convenience as the parties have to be pivpared for trial : 'Viniic 
 .\[iriculti(ral Implement Co. v. Penhie, 11 P. R. 224. 
 
 The plaintiff cannot have the idace selected by iiini changed, if the defen- 
 dant objects, except uiMin sliewing some cogent reason. If the place chosen 
 by liim is manifestly an improper one, 'le )nay be ordered to pay the costs 
 of the motion to change : Martin v. Rn.i.s, P. R. 2ti4. The idaintiff may 
 probably, however, as formerly, obtain a change to hasten the trial wiiere 
 he is in danger of lo>ing his debt, particularly if by some unforeseen cir- 
 cumstance he liivs been prevented from going to trial at the jilace originally 
 named by him : see Liirii.s v. Tai/lio; 4 P. R. !)!) ; Mi-Dmell v. I'roi: In-i. 
 Co., 5 V' C. li. J. 18t) ; or where the Judge ap|H)iiited to take the Assizes 
 refused to try the case, being interested in the de'fendant's Co. ; mid Mercn 
 V. Voijt, 3 P. R. 94. 
 
 On other extraordinary grounds the place of trial may Iw changed. For 
 instance, the existence fif circumstances which may render it impossible to 
 
TRIAL — CHANGING PLACE OF. 
 
 585 
 
 have a fair trial, such as jiolitieal excitemont : Ruche v. Patrick, 5 P. R. 210 ; Rule 664. 
 
 the interests of the locality lieing involved: Municipal ('ninicil ',/ Ontario v. trial oaii- 
 
 Vum'tfrland, 3 IF. C. L. .F. 11 ; or its prejudices or synipatliies enlisted on not be had. 
 
 one siile so as to render a fair trial inii)ossil)le : Mc/hmaoh v. /'I'or. /ns. Vn., 
 
 '> C Jj. J. 104 ; lilacklnirn v. ('amenm, 5 P. H. 341 ; see also /Jari/i v. Marrau, 
 
 !l v'. U. 22!) ; Slmflo v. liolckyw, 35 W. R. m\ • 57 L. '\\ N. S. 17. Qttwrc whether 
 
 the pendency of other similar suits, and the fact tliat a large nnniher of i)er- 
 
 soiis are interested in the county in the matters involved, and that in 
 
 the opinion of nimiher of residents a fair trial can not he had, will he, sufficient : 
 
 .see Alicll V. Lciullei/, Alicll v. Kirk, 2 C. L. T. 555, 557 ; see also Moor v. /ini/il, 
 
 :i I*. K. 374. See also where the Sheriff is a party : /Inunicn v. Jarvi.s, 8 
 
 P. li. 322; or the County Judge, Aimu, 4 P. R. 310. 
 
 The place of trial w.is ciianged in a collision suit in the Maritime Coiu't, 
 on th(^ .sole ground that the local Judge would he in a hetter position to try the 
 c;ise. from liis practical or easily olitainahle knowledge of the locality in which 
 the collision occurred ; The W'iarton /Idle, 2 C. L. T. 3()0. 
 
 A reference to a Master is prima facie to the Master at the ))lace wliert; the Changing 
 pniceedingswereiiisututed : Mucara v. <//'•///(///■, 3 (Ir. 310 ; McXali v. McIiuiIk, place ,f 
 4 f'iiy. Cli. .53; hut the place is sul)ject to l)e ciianged, upon motion, apply- '■<'f'-'>"ence. 
 iiig tiie same principles as in tiie case of tlu^ place of trial : see Jncksmi v, 
 llitrrimiui, !) C. L. .1. 2!l ; Mc.Wih v, Mr Inula, xn/irii. The policy of Tlic 
 Jiiillcfitnrc Act in decentr.ilizing l)usiness introduces a furtlier element, and 
 as tar as possihle, local matters are to l)e sent to tlio local Masters ; a refer- 
 ence was tlierefore changed and sent to the Master of the comity in 
 wiiieii a partnership business in (juestion was carried on : Aitkcn v. Wilnon, ',) 
 V. R. 75. 
 
 A reference was also changed where it became necessary to add as ai)arty 
 tile Master hefori; whom the matter was pending ; Wclilnii v. Tcmplrtnn, 1 . 
 C'iiy. Cli. 3()l) ; and where the Master's illness untitted him from attending to 
 Imsiness : AV Kirkpatrirk, 18 C. L. J. 121 ; 2 C. L. T. 204. See alM) notes to 
 RidcVl, II. 14!). 
 
 In administration matters, however, tlie reference should ])rlm'1 fuclc lie to 
 the jihice wiiere the ])er.son whose estate is to he administered resided ; Rule 
 !)72 IS in swell matters api)licahle, not Muraru v. (•'in/it/ic, 3 (Jr. 310 : T/ioMpson 
 V. luiiiUirn, 10 V R. .533. See als(> notes to /,'///(• 42, p. 14!). 
 
 Ur) On the application of either party, and on pirounds C'mit may 
 shown by affidavit, the Court or a Judge may order that of triai'in" 
 the trial of an action of ejectment shall take place at any aiftious'!"'^ 
 other place than that named in the statement of claim. . 
 Pt. S. U. 1877, c. 51, s. 23. 
 
 .See notes ,w/)w, and ('. I'. R;/. Cn. v. Menhir, 11 P. R.247. 
 
 <»»'>4. After the close of the pleadings either party (a) may N"ti( 
 give notice of trial for the next sitting of the Court which 
 shall be not less than ten days (/>) thereafter for the place 
 so named or ordered. J. A. Rule 255. 
 
 I;0 Tile Kng. H. June, 187(1, 13, and 1875, (). .3('.. r. 4, and 5 (-/) (188.3. R. 
 j''^K and 43(1), pi'rmit tiie plaintiff to givi; notice of trial with his reply thougli 
 It does not I'lose tiie iileadings ; A't'/nlf/i v. Mi'llnemir, 4!) L. .J. ( ). P.. '8(M) ; but 
 li'- may imt enter tlie case till the pleadings are closed : Mctropulllun Inner 
 ''"■rle Ri/.y, Mil ropnli/,i„ /{i/. r,,., 5 Kx. I).'l2(i; and they do not permit the 
 <iefeii(laiit to give notice of trial, until the plaintiff h -s f.i'iled to do so for six 
 weeks after tlieclo.se of the ph^adings, or such extended time as tiie Court or 
 .Imljfe may allow. The Ontario Rnle Kiipru, in in accordance witli the former 
 (iiaiicery practice. Chy. (!. (). Xo. IGl. 
 
 ce ef 
 
Mm 
 
 me 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 Rule 655. Any one of the parties plaintiffs, or defendants, may give notice of trial : 
 Tumuuj V. (i. T. Ri/., 11 P. R. 438, and if one of Heveral defendants does sob' 
 should serve his co-defendants as well as the i)laintiff : MvLrtni v. Thmiinsnn !) 
 P. R. 5.53. 
 
 Either party has the right to give notice of trial for the next sittings, whcthtr 
 an Assize, or a Chancery sittings ; and whei-e defendant has given notice for the 
 earlier ot such two sittings, the plaintiff cannot take away that right by giving' 
 notice for the later sittings : shaw v. ('mv/urd, 9 C. L. T. 412; 2;") C. L.J. 
 oOT. 
 
 {!)) This is the i)eriod allowed under Ride (Mil for the notice of trial. The word* 
 " not less tlian " do not require a notice of trial to he ten clear days ; tliis Rule 
 is to he read with Rule (Kil : see Jfurpcr v. Marc, in note to that Rulr. 
 
 As to when the pleadings are clost^l, see Hare v. Cinrtli.i-i)))i; 11 P. R. 3.53, anil 
 the notes to litilr .322. Notice of trial given before the |)leadings are closwl 
 within tile meaning of Rule .31)2, will he irregular : Schneidfr v. /'nirt'n; '.) P, K. 
 11. An action of ejectment begun luider the old practice was held to be at issue 
 on ap|)earanct' being ])Ut in, though after the coming into force of Tlu Judieo- 
 tun- Act : Laiilhiw v. A.s/ihfiiii//i, !) P. R. (>. 
 
 Wiiere notice of tri.il did not state the place where the trial was to take place, 
 a motion to .set aside the notice \\; s refused in the absence of tin afHd.ivit 
 stating tiiat the jiartv moving was /nerebv misled : O'linini v. WiUa, iM 
 C. L. J. 3(i<) ; .see also notes to Ruh (Hid. 
 
 When" an overdue defence was filed on the last day for giving notice of trial, 
 and a joinder of issue, and jury notice were filed on th(! .same day, but after the 
 filing of the defence, the .service of notice of trial with the joinder of issue ami 
 jury notice on tlie same day, but after tlie filing of tlie defence, was held tu l*' 
 regular: lirnilcriih- v. Bro'ih/i, 12 P. R. oCd. 
 
 Trial of 
 dilToront 
 
 rtinoront 05»>. Subject to the provisions of the Judicature Act 
 questions aiid ot' the preceding Rules, the Court or a Judge may in 
 inodes'?'^''" any action at any time or from time to time order that 
 different questions of fact arising therein be tried by differ- 
 ent modes, or that one or more questions of fact be tried 
 before the others, and may appoint the place or places for 
 such trial or trials, and in all cases may order that one or 
 more issues of fact be tried before any other or others. 
 J. A. Rule 25(5. 
 
 Same .substantially as the Kng. R. IS?."}, O. 3(i, r. «, (ltW3, R. 432). 
 
 The present Rule enables the Court to direct one or more issues of fact, which 
 may decide tile case, to be tried before the others. 
 
 An order foi' the trial <if a i)oint of law first was made in CnriKtrntlon af Pm- 
 ton V. Fiilhi;,,,,/, 80 L. T. Jo>ir. 41. See also Irivin v. Sp'-rri/, 11 P. H. lilt: 
 Siiiit.h v. H(iriiri)ir, l(i (J. B. D. 183 ; Tiiiip(r<nip( Coloiiizatioii Sorictil v. KmM, 
 12 P. R. 48, .380 ; Khmre v. I'irric, .57 L. T. N. S. 3311 ; L<,ii(hm ('. .t' />. v. S. E. 
 RU., nSL. T. X. S. 10!). 
 
 Rule ooo enables the Court to direct a jireliminary point of law, to lie decided 
 which may prevent the necessity for trial oi issues of fact. 
 
 Rule 380 contains jtrovision of a similar kind for eiiabling a point of law 
 raised by demurrer to be dtrcided at the same time as issues of fact, or at a 
 different time. 
 
 In The Emvia Sitver Miiiin:/ Co. v. f.'rmH, 11 Ch. D. {tl8, Jessel, M.R., said 
 (p. ICiO), that a "case to \w brought within this Rule ought to lie one of simiih' 
 issues. I do not think it is convenient to travel through a hiiig record, and to 
 get a number of complicated issues, and except them, so to say, from the, 
 pleiMlings." He exjdanied in what ca.ses the Rule had heretofore lieeii acted 
 

 TRIAL. 
 
 587 
 
 upon. All had bsen cases in which the application was by the defendant, lie Rule 666. 
 said at page (•2G :- 
 
 "The first case that came before me was a case in which a lady alleged that 
 she was the legitimate child of somebody, and that as such she was entitled to 
 take some very long and expensive and intricate accounts against some 
 tnistees. The trustees sh iwed by affidavit that the lafly was born before the 
 marriage of her parents, and tliat there w(^re ve^ry strong groini<ls indeed for 
 supiiosing that she was not a legitimate child at all. T thought it a ju-oiht 
 ease, iiKismuch as the ex|)ense of taking the accounts would have been enor- 
 mous, and tiie whole suit would have ended in notlnng Init costs if the])laintiff 
 did not establisli lier legitimacy, for the issue of legitimacy or ille>gitimacy to 
 lie tried first under this Jitih: t so diretjted, and, as 1 am informed, the result 
 was tliat the lady did not succeed in establisliing her legitimacy, and there was 
 an end of the action, which was exactly what I anticipated. 
 
 " In .. -iiasf' of this kind, my opinion is, that the .Tudge must have some evi- 
 dfince which will make it at least ))robable tliat the issue will |)ut an end to the 
 action. The plaintiff is not to be har.assed <at the instance of the defendant by 
 a series of trials, each trial taking issue on every link of the |)laintiff"s case. 
 That is not the meaning of the Itul'; as I understand it, but it may i)ro])erly 
 1k! appliel in such a case as that I have stated, where the Judge Jias serious 
 reason to believe that the trial of the issue will ])ut an end to the action. 
 
 "I have had ii case in whicli the plaintiff alleged a very long title to, and 
 claimed an estate. He alleged himself to be tiie heirat-law of a i>erson who 
 was entitled to this estate. Jie wanted a great deal of discovery, .and the |K)s- 
 session of a large pr')i)erty. The defendant said that the plaintiff was a 
 ])aiii)(r, that it was a mere experimental .action, and that tliere was not a 
 shadow of groiuid foi' his claim. In that case T felt no hesitation in directing 
 an issue wht'tiier the man was heir-at law. It turned out that he was not, and 
 T Ix'lieve, the case was abandoned and was never tried at all. 
 
 "There was a third case T n^member before me at Chambers (T only give 
 these instances as ilh'strati(ms) in which a man lirought an action on behalf of 
 himself and all other tenants of a manor to restrain the inclosure of a common. 
 The defendant said, ' Tiiis will l)e a >ery exjiensive iiction to try; it will 
 involve the customs of the manor as to rights of common,' and tliat, as usual, 
 they had put up a n>an. who although not technically, was really a paujKT, to 
 sue on Mialf of himself and all others, the only result of which action could be 
 that tiie defendants, if successful, would have to |)ay the costs out of their own 
 (vxikets. Tliey alleged, and proved liy affidavit, that the |K'rson who was 
 plaintiff, luid who said he w.as ten.ant of the manor, was not so, and that his 
 name, or the name of his ancestors, had never apjjeared on the court rolls of 
 the manor. The only answer that I could get from the plaintiff was, that he 
 iH'lievcd that he was a tenant, but ho could not show how. I thought before 
 the defendants were jnit to the enonnous exi>ense of a trial of all the issues, it 
 was rit'lit to put the plaintiff to the prof)f that he was a tenant at the time 
 when the action was brought. ... 
 
 " Ti-." defendant has of course a right to shajjc his own case and to say to the 
 plaintiff ; ' You must prove every part of your case ; if T can put my finger on 
 one part of yoni case and siiow that there is no foundation for it whatever, it is 
 (luitft wrong to. subject me to the whole expense of a jn-otractwl investigation, 
 and esiiec'iall.\ when you, the plaintiff, cannot pay the costs of it." "' 
 
 In the subsccpient caseof Picrci/ v. Yoiairi, loCh. D. 474, the learned Judge 
 stated that the Jiiilr was intended to be apjilied in exceptional cases only ; 
 that the object of the .Judicature Act was to try all disputes together, and that 
 it w.as considered a beneficial object. " Sejiarate tri.ils of sei)arate issues are 
 iiefirly as expensive as separate actions, and ought certainly not to be encour- 
 aml, .111(1 tli"y should only be granted on siiecial" grounds." It was there held 
 that a defendant in a partnership who had set up by counter-claim, an agree- 
 ment hy the plaintiff for sale of his interest in the partnership to the def'_ ndant 
 at a stated iirice. was not entitled to have this issue tried liefore the plaintiff's 
 iKSues in the action. 
 
Wff 
 
 688 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 Trial by 
 jury. 
 
 Rules In the Taxmanian Bnilwin/ Cdrnpanf/ v. ( 'larb', W. N. 187!>, 10(! ; 27 W. R. 
 
 6B6-659. (577, the Court of Coiiinion I'loan refused Icavt^ to try the liability of a surety, 
 
 Ixifore that of the principal ; and the Court of .Vi>]ieal declined to interfere with 
 
 their discretion. 
 
 Where a reference would be onh^red by the Judge! as to a (luestiou of iiccoiiiit, 
 it is proper that the (|uestiou of liability should !«■ tried .se))arately from tlie 
 
 5[uestion to Ik,- .so referred : LiiYr/mn/, ItnizH, vie. Xiifiiidinii v. Luiii/nn ,i- si 
 ua/ieriiie, etc., ('„., VV. N. 187."), 203 ; 1 Charl. Ch. Cii. V21. 
 
 In Mi/is.<<ir/i V. LhtH'ls, \V. N. 1870, 2(M), an action for libel, an iip|i]ication 
 by the defendant to have tlu; cpiestiou of libel tried before the (nie.stidii of 
 damages was refused by Lush, J., who said : " [ do not think that I cimld in 
 this ease sf^parate the (pu'stion t)f damages from the ([Uestion of fiict without 
 injury to the plaintiff." In l)( ul v. Suriirlijn Lift- Atotiirmn-c Co., W. X. 187!), 
 'A'.\ the validity of a life policy being the matter in dispute, an a|)i)liciiti(m by 
 tlie plaintiff that the issue, whether the deeea.sed was a man of temperate or 
 intemperate habits should be tried first, was refused by V.-C. Uacon, who said 
 that "thi.s i)articular issue coidd not be .so severed from the rest of the case a.s 
 to admit of its being heard separately by a jury." 
 
 The A'/'/r applies not merely to (piestions of fact, but to mi-ved que.stionsof 
 law and fact : Tnsniiiniiiii I'li. Cn. v. i'tark, xiijini. 
 
 Sei' also TtiNci-Hdll v. .Xntiniinl S/adiis/ii/i Cn., in note to Ruli' iViS, and I'ooleii 
 v. Dfiir,; 5 Ch. D. 458. 
 
 050. Every trial of any question or issue of fact by a 
 jury shall be held before a single Judge, unless such trial is 
 specially ordered to be held before two or more Judges. 
 J. A. Rule 257. 
 
 Identical witli the Eng. R. 187."), (>. 3(i. r. 7, (1883, R. 133) ; see .sec. (ilof the 
 Act. 
 
 As to the cases in which a jtiry may be had : nee notes to s. 78 el .viv/. of the 
 Act. 
 
 6»^T. The plaintiff and the defendant respectively, in 
 any action in the High Court, may, in the Divisional Court 
 sittings of the High Court next after issue joined, apply to 
 the Court for a trial at bar, and the Court may, in its dis- 
 cretion, upon hearing the parties, grant or refuse the same. 
 R. S. 0. 1877, c. 31), s. S3. 
 
 Onthepart 05H. In all cascs in which the Crown may be actually 
 
 Crown. or iittiiiediatel}' interested, a trial at bar may be had as of 
 
 right upon, and shall be regulated and governed by, the 
 
 same principles as in similar cases in England. R. S. 0. 
 
 1877, c. 39, s. 34. 
 
 See Dixim v. Fanrr, 18 Q. B. D. 43. 
 
 Trials at 
 bar on the 
 part of 
 suitors. 
 
 When trial 
 to be had. 
 
 <i30. In case any trial at bar is directed, the Judges 
 attached to the Division of the High Court in which the 
 action has been brought, may appoint such day or days for 
 the trial thereof as they may think fit. R. S. 0. 1877, c. 39, 
 8. 35. 
 
NOTICE OF TRIAL. 
 
 689 
 
 000. Notice of trial shall state whether it is for the trial gJ^^L, 
 of the action or of issues therein ; and the place and day p^y^, J 
 for which it is to he entered for trial, and shall he ftiven "otio of 
 before entering the action for trial. It may he in the Form 
 No. 27 in the Appendix, with such variations as circum- 
 stances may require. J. A. Rules 258, 260. 
 
 By tlic Eiig. H. IS?."), (). 3(J, r. 8; Rnlr 12, of Dec. 1875, (1883, H. 437, and 
 
 43!)), tlio notice of trial \h to state the place and day in actions in the •> 
 
 'I " " [ '. . . ■ ^j 
 
 Itrdmci/nr v. Vaiiijlidii, 24 "W. R. !t83, 
 
 V. P., unci Kxcii. D. (now (^>. ]i. D.) only. Tlie Huh-n otlierwise corresiKnid 
 
 B., 
 
 see 
 
 Notice of trial of an action in tlu! Ciiancery Division for tiie winter a.ssizea 
 lit Hamilton, was held (,'(M)d where no Chancery spring: sittings at lianiilton 
 liad iM'en fixed : /{i/iiidl v. Mc.Kach''rii, 3 C. L. 'l\ KMi, approved in MrLcan v. 
 Thiimi>iiiiii, !l P. K. r).')3. 
 
 Notice of trial was amended innir fro linicwhi'Vc, given for trial at Belleville 
 naming the day fixed for the Assizes at Pieton, the Belleville Assi/.es being over 
 and the iiarty served not having been misled : MV///rc v. Trrrii, 7 P. R. 340 ; 
 s() where " Sei)tenil)er" was inserted instead of "Octoiier," as the mistake 
 could not misleiul : Jiauk nf Mmihral v. Viimerun, 7 P. R. 188; see also 
 ifBrkii V. ir.//.s', 20 C. L. .1." 3(i!). 
 
 Where after notice of trial given by i)laintifl, the defendant obtained an order 
 postiKining the trial on payment of costs, this was held to be a conditional 
 onier not staying the i>laintiff's proceedings and one which the defendant 
 was at litierty to abaiKloji without being liable to pay other than the costs 
 of the application : Allen v. Mathers, 9 P. R. 477. 
 
 001. Ten days' notice of trial shall be given, unless the Ten days 
 party to whom it is given has consented to take short 
 notice of trial ; and shall be sufficient in all cases, unless 
 otherwise ordered by the Court or a Judge. Short notice ^''?,"^ . 
 
 ,.,,, ■' . tit\i/^ notice five 
 
 of trial shall be five days notice. J. A. Rule 259. days 
 
 This Rule is identical with the Eng. R. 187.5, O. 3(!, r. 0, (1883, R. 438), 
 except that short notice of trial is there declared to l)e four days, instead of 
 five. 
 
 The t^n days are computed in the usual way, exclusively of the first day and 
 inclusively of the last, mider Hi'li' 47i ; the words " not less than ten days" in 
 Rule (JM have not the effect of making the ten days mentioned in this Rule 
 clear days; //iirju-r v. Marx, 3 C. L. T. 30!). 
 
 A defendant is entitled to the fidl ten days' notice and there is no power to 
 comiM'l liini to take less, unless he has consented to take short notice, or unless 
 Hliort notice can be imix>sed as a term of granting an indidgence to the defen- 
 dant : Hamilton Pivr. A L. Sue. v. Mchim, 13 P. R. 125; ^Vhitneii v. Stark., 
 Ik 12!t. . / . 
 
 \y'here notice of trial is served on the Toronto agent of a solicitor, he is not 
 entitled to two days' additional time, as fonnerly \mder R. H. O. 1877, c. 50, 
 s. .58 : Lum.vln, v. JJarirs, 17 C. L. J. 303 ; 1 C. L T. (ila. 
 
 \\ hero liy arrangement {)apers were served by mail, notice of trial posted in 
 time, hut received one day short of the ten, was set aside : Mclionnnnh v. 
 Mmm, !» P. R. 4. 
 
 On motion to set aside a notice of trial served a few minutes late, service 
 liavnig U^en admitted, but immediately afterwards rejnidiated, it was held that 
 tinless service < )f a go(jd notice was negatived, the service slioidd not be set aside : 
 " ruiH V. »7,y, 8 P. R. 238. 
 
 ..J..''' ''"''' applied in actions of replevin even under the original Rale: 
 Wallace v. Vmmn, 9 P. R. 144. 
 
 V ihi 
 
j^mmtmm 
 
 Notice of 
 1/ 'ial at bar. 
 
 Entry for 
 trial. 
 
 ^90 MISCELLANEOUS PROCEEDINQS. 
 
 Kules Eiig. R. 1875, Order 3(>, Rule 13, (1883, R. 443), provideH that no luitice 
 
 '662-666. of trial shall be countfriiiunded except by consent or leave of the (.'ourt or a 
 Judge. Tliis Rule has not been adopte<l in the Ontario Rales. By the 
 former Common Law practice countermand was iwnnitted, but not by the 
 Chancery practice. Since The Jui/icatuir Act, notice of trial cannot be 
 countermanded, by either party : Friend! i/ v. Carter, 9 P. R. 41. 
 
 In the case of a rcmanet no notice of trial was formerly necessary : Dunovan 
 V. liiiultbee, 10 P. R. 52 ; but must now Ije given under Uule G71«. A cage 
 j>ostponed by order at the trial on defendants' ap|)lication 'wa,reiiMnet ; lb. 
 
 062. Notice of a trial at bar shall be given to the Eegis- 
 trar of the Court before giving notice of trial to the party. 
 Bules T. T. 1856, 37. 
 
 603> After notice of trial is given, either party may 
 enter the action for trial. If both parties enter the action 
 for trial, it shall be tried in the order of the plaintiff's entry. 
 J. A. Eule 261. 
 
 This Iti'te correspoud.s in eflfect with the Eng. R. 1875, O. 30, r. 15, ho far as 
 the latter relates to cases which are not to be tried in London, or Middlesex. 
 
 The effect of this Jtule, and Rule 005, is to sujjersede the fomier Common Law 
 practice, by which the defendant coulil obtain a side-bar rule for costs of the 
 day where the itlamtiff gave notice of trial but did not enter the case. The 
 defendant can enter the action, or if the plaintiff fails to do so, tiie defendant 
 may ai)ply to the .Judge under Rule (iO.5. No officer ha.s now jxjwer to is.suea 
 rule for costs, and the Master in Chambers has no jurisdiction to entertain an 
 application for them : Ilopkitm \. Smith, !l P. R. 285; see Tonsleii v. Uepper, 
 57 L. T. N. S. 481, under the English practice. 
 
 Where, after the ])]aintiff has given notice of trial, neither party enters the 
 case, i/U'ire, whether the defendant may move to dismiss tiw action for 
 want of prosecution : Crick v. Hewlett, 27 Ch. 1). 354. This case, in 
 which the right to move to dismi'ss wi'.s affirmed was decided upon the terras of 
 Rules 430 and 440, of the Eng. Rules of 1883. Rule 430, is not the same as 
 Ont. Rule {'AT, tliough providing in resjR'ct of the same siibject. Eng. R. 440 has 
 not been adopted here, and i)rovides expressly that the notice of trial ceases to 
 have any force, where the plaintiff fails to enter the case. 
 
 604. On the day before the day for holding the Court 
 at which the action is to be tried, the party entering the 
 action for trial shall deliver to the proper officer one copy 
 of the whole of the pleadings in the action for the use of 
 the Judge at the trial, such copy to be certified as a true 
 copy by the officer having charge of the pleadings filed, [and 
 to be called the Eecord]. J. A. Rule 262. 
 
 Comp. Eng. R. 1875, O. 30, r. 17, (1883, R. 454), and Dec. 1875, R. 14. 
 
 The English Order jirovides for two copies of the pleadings being delivered 
 to the officer; it does not require them to be certified, nor does it jjrovide that 
 they are to be called the Record : see notice W. N., 1877, Pt. 2, p. 219. 
 
 Time^of^eu- 605. Actions shall be entered for trial not later than the 
 ry or ria j.jj-j,^ ^^^^ j^^^j. \yQfQj.Q tjjg gj-st day of the sittings ; but the 
 
 Judge may permit any action to be entered after the time 
 
 Record. 
 
ENTEIUNG ACTIONS FOR TRIAL. 
 
 591 
 
 above limited, if upon facts disclosed on affidavit, or on tlie^"j'«" 
 consent of both parties, he sees lit to do so. J. A. linle 264. 
 
 Bv H. >S. O. 1877, c. r»0, s. 248, the recdrrl of lu'.si' pri'iin was to be ciittTi'd at 
 uiiy time during the five daj's next before the coniniiHsion day; and < ii the 
 .iiiid commission day at any time before noon, iniless the .liidge sho\dd on affi- 
 davit j)ermit it to be entered afterwards. In Chancery (Order l(i3) eases were 
 wt down, and notices served at least fourteen (hiys before the sittings. 
 
 The iiresent /{ulr follows neither jiractice ; it forbids the entry on the day 
 tiie Assizes, or Sittings begin ; and reijuires it to be made not later than the 
 third day next before siich first day, unless with the .fudge's |)ermission. It 
 may be nuule on any earlier day, after notice of trial is given : Jtiilc (ifiO. 
 
 Sunday is luider /lute 473, to be excluded in comimting " the tiiird day " : 
 Parr v. Lomih, 3 C. L. T. 312. 
 
 See HopkiHK v. Smith,:) P. R. 285, in note to Euk (H\3. 
 
 600. Any action which is not to be tried by a jury, may N;».> ■)"'■>' 
 be entered for trial at any Sittings appointed for the place*'' '""*" 
 named for the trial of such action. Sec J. A. Rule 590. 
 
 The iiractice was diflferent before this Rule : see (/rant v. Miildleton, It) ^ . • 
 
 007. If both parties enter the action for trial at the 
 same Sittings it shall be tried in the order of the plaintiff's 
 entry. Ncc J. A. iiule 591. 
 
 See also Ride (!(i3. 
 
 The original Huh- also pnjvidod that if both i)arties gave notice of trial, 
 one for the Assizes and the otlier for the ( "hancery sittings, the plaintiff's notice 
 should govern imless otlierwise ordered. This provision being repealed it is 
 presumed that the first notice served should determine the sittings for tlie trial. 
 
 OON. All actions to he tried by a jury, shall be entered Jury 
 for trial at the Assizes holden at the place named for trial '^*' '""''■ 
 of such action without an order transferring such action to 
 any other Division. J. A. Rule 592. 
 
 00!K The party entering an action for trial shall separate^ 
 indorse on the copy of the pleadings delivered as aforesaid, fended ami 
 whether the matter for trial is an assessment of damages, eals'ucH." 
 or an undefended issue, or a defended issue ; and the offi- 
 cer with whom the action is so entered shall make two lists 
 and enter each action in one of the said lists, in the order 
 in which the actions are entered with him ; and in the first 
 list he shall enter all the assessments and undefended 
 issues, and in the second list all defended issues, and the 
 Judge at the trial may call on the actions in the first list 
 at such time and times as he finds most convenient for 
 (lispoping of the business. J. A. Rule 267. 
 
 Substantially tiie same as the enactment in K. S. (). 18 
 i here is no corresponding Kuglish Rule. 
 
 77, c. no s. 24',l. 
 
 
■■ 
 
 692 
 
 Rules 
 670, 671. 
 
 With- 
 (lrawH.1 of 
 record \>y 
 
 COIlHOllt. 
 
 MISCELLANEOUS PR00EEDINO8. 
 
 OTO. Where an action has been entered for trial, it may 
 be withdrawn by either the plaintiff or the defendant, upon 
 producing to the proper otHcer a consent in writing, signed 
 by the parties, rbut not otherwise except by order] . J. A. 
 Rule 171. 
 
 Hiuiif as Kiig. R. Dec. 1X7^, H. '.', whicli was framed tn ohviiitu tho necessity 
 (if ii|)i>lyiiig to tilt! sittiiif,' .liulffe for Iravo under Itiihn M\ and (142. 
 
 Tho words in Imickets were not in the ori(,'inaI Jlii/i'\7'l, and are in mibstancc 
 what was provided in original Itiih' 170, viz., that the record cannot ))e with- 
 drawn witliont leave : see /iufc (i41. 
 
 At Ooninion Law, a jilaintitf who had entered a cause for trial might with- 
 draw the record at ivny tinii! before tlie jury were sworn, this was often a 
 iiardslii)!, wliere the defendant was ready with his witnesses and counsel. 
 Under the jn-esent clause, leave is necessary for the withdrawal of a record, 
 and in Lai nimouth v. Croll. 1 Charl. Ca. (Court) KM), Huddleston, H,, refused 
 an ai "plication to jjostjione the trial fixed for a few days thereafter, though coun- 
 sel for tiie iilaintifT was not sufficiently instructed in the case ; and he referred 
 the plaintifif to the Judge who was to sit on the day apjiointed lor trial, for 
 leave to withdraw the record. Leave was given where the consent of the ojipo- 
 site party was jtroduced, without any affidavit : Anon, 1 Charl. Ca. (Court) 09. 
 
 Any order made at the trial for withdrawal or jMistiMmement, and requiring 
 to bt^ issucil, should lie signed by the officer who acts as Registrar at the trial, 
 no matter what Division the action is assigned to: Waiihorn v. I/(iwkinf,\2 
 
 P. K. i4r.. 
 
 Orders at the trial for amendnient of jileadings do not require to be issued: 
 Jiiilr 44(), and orders respecting postponements, not containing any special 
 teniis may not require to be issued. 
 
 In consequence of this Hiilc it has been decided that where a case has l)een 
 madtt a rriirnict at the Assizes, it remains there for trial, and a party cannot, 
 without consent or leave, interni|)t the course of the trial ami give notice of 
 trial for the Chy. sittings : Wiiri/ v. ./itctsoti, 12 P. R. 225. Con. RiiUii'lviwi 
 intended to obviate this difficulty and was as follows :■ — 
 
 Actions not " 671. Actions not tried or disjiosed of afti-r being once entered for trial may 
 
 tried. he set down, and notice thereof given for any subsecjuent Court without the 
 
 payment of any further ft'e." Sir C L. Rules 4th Dec. lH7i), 2, 3. 
 
 Tliis /{nic has been abrogated and a new one substituted. See note to next 
 Ki'k. 
 
 For effect of withdrawal of a juror, see Thouuts v. Exeter Fliiiny Post, 18 
 Q. B. D. 822. 
 
 Eemanet. 071a. Ordered, that Rule 671 be and the same is 
 hereby rescinded and the following substituted therefor, 
 viz. : 
 
 Actions not tried or disposed of after being once entered 
 for trial shall remain for trial subject to the provisions of 
 Rule 670, but shall not be heard at any subsequent Sittings 
 unless and until a fresh notice of trial be given for such 
 Sittings by one of the parties. 15th Dec, 1888. 
 
 This Jtidc was published in the Ontario iiazetle of 20 Jan., 188!», pursuant to 
 Rule 6. 
 
 The original Rule G71 is given in the note to Rule 670. 
 
 The effect of the new Rule seems to be, that actions not reSched at the Assizes 
 may not be entered for trial at the Chy. sittings (and vice verm) without, 
 
' ^,¥ . »S 
 
 TRIAL. 
 
 693 
 
 oonsent or lenve : see Wan/ v. Jtirkmn, 12 P. R. 220 in note to Rule 870, and Rules 
 that, if \vitli(lriiwn, a furtlier fee for entering at another Hittings must Ix^ 672, 673. 
 
 pnid. 
 
 See lliiiiliin-i/ v. M<tni{facturerii Ins. Ca., 13 1*. R. 52, decided under the 
 repealed Jliilr (171. 
 
 It iiivs tx't'ii lield tliat wliere a Judge has no time to try a ease owing to hiw 
 haviujf to go to anotiier circuit town, thougii lie nuiy make the case a rrniiniet, 
 lie !*liinil(l u<it direct it to ht! tried at another place : Fairlittifii v. lldiiHeliithI, 53 
 L. T. N. S. 513. 'I'his case seems to have turned on the circumstance that the 
 .Tiid^'e had not power to change the venue, which power he would have in > 
 
 Out.; see sees. 31( and 40 of the Act, p. 32. 
 
 072. If, when an action is called on for trial, the plain- xon-ap- 
 tiff appears, and the defendant does not appear, then the aefemiaut! 
 plaintiff may prove his claim, so far as the burden of proof 
 lies upon him. .J, A. liule 268. 
 
 Sameas Eiig. R. 1875, O. .%, r. 18, (18H3, R. 4r)5). 
 
 Before the .Tud. Act, 1881, in actions of ejectment, if the defendant did not 
 aiiiH'iU- at the trial, tlie plaintiff was entitled to a verdict without any proof : 
 R. S. (). e. 51, s. ,'}2. Now, ejectment suits are on the same footilig in that 
 ivs|K^ct as other suits : see (luillft v. Clovh, referred to and discussed in 72 L. T. 
 .loiir. 3118. 
 
 Til the eases dealt 'vith hy this iJ"/(', it has been held in England that the 
 plaiiititf need not piove s(<rvice of the notice of trial : ('hurllnH v. IHrkir, 13 
 ('li. I>. lllu. See. however, Tin' Aim I r, \) P. D. 84. This is in accordance with 
 tlie feriiier practice at Law. There had been a i)revious decision by Fry,.?., 
 the other way: ('ni-hshiitl v. Ldiii/ihi (iciwrid Cnli CV, 2(! W. R, 31; W. N. 
 1S77. 214. See note to next Mulr. But, in the absence of any decision to the 
 wiiitrary, it would seem iirojjer that, where judgment has lieen pronounced in 
 tlif ahseiice of a defendant, the officer with whom the judgment is entered 
 should i-eipiire due proof of service of notice of trial, orof motion for judgmen';, 
 to 1)1' filed with him before entering the judgment, unless the proof has beei 
 given at the trial: see (i'liix;iow v. <il(iK(ioii\ !t Out, 511 {«). 
 
 If the defendant has a counter-claim and does not ai)pear at the trial the 
 plaintiff is entitled to have judgment on his claim on proving it and to have 
 the counter-claim dismissed with costs : Liimlvij v. limukeK, 41 Cli. D. 323. 
 
 67J5. If, when an action is called on for trial, the defen- Non-ap- 
 dant appears, and the plaintiff does not appear, the defen- {'Stiff.' "^ 
 (lant, if he has no counter-claim, shall be entitled to 
 judgment dismissing the action, but if he has a counter- 
 claim he may prove such claim so far as the burden of 
 proof lies upon him. J. A. Rule 269. 
 
 Same as the Eng. R. 1875, (). .30, r. 10, (1883, R. 450). 
 
 In such case the defendant is entitled to judgment dismissing the action with 
 costs : Fnni'U v. II'k/c, 30 L. T. N. S. 05, and cases infra. It has been held 
 in England that the defendant need not prove the service of notice of trial on 
 him : Janics v. t'r>,w, 7 Cli. J). 410 ; and Re Palmer, Skipper v. Skipper, 32 
 W. R. 83 ; 4!) L. T. N. S. 553 ; following Ex parte Laws, 7 Ch. D. 100 ; not 
 following Vuckle V. Jojice, 7 Ch. D. 5(i ; and see note to Rule 072. But where 
 notice of trial hat! been given by the plaintiff, and he filed a liquidation 
 iwtition, under which a trustee had been appointed, and no one ai)peared at 
 till' trial for the jilaintiff or trustee, proof of service of notice on the trustee 
 was held to be neces«aiy : Eldriihie v. fiiayess, 7 Ch. D. 411. 
 
 The practice in Phigland, where the plaintiff does not appear, is not to swear 
 the jury, and any costs which the defendant may incur, by having the jury 
 J.A. 88 
 
r^ 
 
 594 MI3CELI.VNE0US PROCEEDINOS. 
 
 Rules Rworn in hiioIi imm; tlic defontlaiit iiitvy not Ih' entitUnl tu get taxt'<I : Line v 
 
 674, 676. A'lr, W. N. lH7(i, HC. 
 
 When' a tent iictinn ciuii»' <>ii for trial, tiic phiiiititT wan not itrt'iiaicd t()|irii- 
 ci't'd and a|>|)li('d for a |M)Ht|MMU'nit'nt, to wliiuii, under the ciitMnuNtanct'i, Kufiir 
 an iiin own intcrt'st was coni'tnuMJ, lie was not futitlcd ; it waw held tlmttlii' 
 C!oiirt could not rex'i'rd the rights of the plaintitTn in the other actions, luid must 
 (liMmiMH the action with costH: Huliinsun v. ('hiidiiirk, 7 Ch. D. (<7H. See note 
 to Hide (Ml. 
 
 Witnesses 074. The Judge at the trial shall at the request of 
 Jmt^of**''"* either party cause the witnesses to be removed from tbe 
 Court. Court during the trial, and also the parties to tbe suit 
 tendering themselves as witnesses, if the Judge deems 
 necessary ; or he may instead require the party inteiuling 
 to give evidence for himself to be examined before hia other 
 witnesses ; and any such witness who returns to the Court 
 without leave, shall be liable to be punished in such manner 
 as to the said Judge may seem proper ; and the Judge may in 
 his discretion exclude the testimony of any witness who 
 returns to the Court without leave of the Judge. 1(. S. 0. 
 1877, c. 50, e. 260. 
 
 See Sierewriijht v. Sieiru<ri(jlit, 8 1*. R. HI, and note Kiipra \t. 4.S(i. 
 
 A plaintiff calling defendant as a witness is not entitled as of rifedit to re- 
 examine in the nature of cross-examination. The .ludge has a liihcretiim to 
 refuse to allow such cross-examination : Price v. Jl(tiuiiii</,'i7 W. li. 7^") ; W. N. 
 1889, 1(51. 
 
 A hearing hi cmnern may be allowed in a projjer case ; McHnr v. Thompson, 
 31 Ch. D. 55, and 25 C. L.J. .0!»7; 82 L. T. Jour. 297 ; 88 L. T. Jour. 40 ; and 
 jKjr Lord Fitzgerald, MacdouijuU v. Sleight, 14 App. Cas. 2(>0-7. 
 
 Howari- 075. At the trial, the addresses to the jury shall be 
 counsel to regulated as follows : — the party who begins, or his 
 iated?^" counsel, in the event of his opponent not annonncinp ' 
 
 .pose of 
 ler sid< 
 
 the close of the case of the party who begins, his 
 
 to adduce evidence, shall be allowed to addrefc 
 
 second time at the close of the case, for the 
 
 summing up the evidence ; and the party on thi 
 
 or his counsel, shall then be allowed to open his carie, a i 
 
 also to sum up the evidence (if any). The right to reply sh.iii 
 
 be the same as at present, li. S. 0. 1877, c. 50, s. 261. 
 
 Usually the course of ])roceeding at a trial is as follows : The counsel 
 having the right to begin opens the case by an address to the Court and jur)', 
 in which he states the facts of the case and the nature of the issue to be triwi, 
 and the evidence by which he proposes to i)rove his case. He then i)roduces 
 the evidence. If at the conclusion of his case, the opjxjsite party desires to 
 produce evidence, he is entitled to address the Court and jury stating the 
 nature of his case and the evidence he jjroposes to prcxluce in support of it ; 
 this right, however, is not generally exercised ; but without any ijreliniinary 
 address, he adduces his evidence. Evidence in reply may be then adduced by 
 the party begiiming, and at the conclusion of the evidence, the counsel who 
 did not begin addresses the Court and jury on the whole case, and the counsel 
 who begins then replies. If, however, the party who does not begin adduces 
 
TRIAL. 
 
 595 
 
 110 cviflpiico, tlicii tlif CDUiiHcl wlit» lM>K<in uddrt'HW'H tlio Court ami jury (in Rul« 674. 
 tilt' wlidli' ciiMfut tlic fiiiu'luHion of the t-vulfiicf mid the oppoHitc party rt'plit'H. 
 
 111 trials U'forn ft jury tlinrefore there ure iiHiiallv but tliree luidreMHeN, viz.; 
 tlic diieiiin^' MiK'et'li liet'ore iiiiy evidence in adduced, and the two adth'eHKen at 
 tlie CDiiclusioii of tlie evidence. Where defonthmtN are reprenented hy different 
 cinmsel, each ilefendftiit iH entitled to Ih' heard by hii« own counHfl. 
 
 Where a trial takes nlace Iw-fore .i .ludj,'e without a jury, the opening HiM'eeh 
 i;< frwiiit'iitly disiH-nHen witli, the reading of the pleadings lieing coiifiidered a 
 siffioieiit stiiteiiient of tlie cant;. 
 
 The right to Iw^fin is not altered by this Rule. Tho party uiKm whom the 
 liiirtlieii of priKif lies is the party entitled to begin : Marr. C. L, P. Act, 2nd ed., 
 L'id. (Ifiierally till' burthen of proof lies on tin- party who asserts the aftirin- 
 iitive Mil tlie record, i',''., the affirmative in substance and not merely in form. If 
 tlipre Ih a picsuiiiptioii of hiw in favour of the pleading of either party the o»«.i 
 firnfutwii is cast uihui his adversary, though he may thereby be called on to prove 
 11 negative. Where there are conflicting presumptions, tiie onii.t nni/niiii/i lies 
 on the party iiaviiig in his favour the weaker presumption of tiie two. But 
 where tiie case of a l<arty rests on the proof of some particular fact, (>f the truth 
 or falseliDiHl of which lie must from its very nature be peculiarly cognizant, the 
 (« "■ of piii\iiig tile fat!t lies on liim,eveii though tliere be a presumption of law 
 ill favorof his pleading; and wiiere the plaintiff sues for damages and it is 
 necessary for the plaintiff to show tiie amount of damages sustained, he is 
 entitled t(i begin even though the atfinrative of the issue lie on the defendatit, 
 lint if the attirmative of tiie 'ssue is on the <lefendant, and jilaintiff's counsel 
 will not undertake to offer proof of substantial damage, th(? defendant is 
 entitled to liegin : //'. 21»2, 2!t3 ; Best on Kigiit to Begin, 3, .'i, 12, 21, 23. 
 
 An incorrect ruling as to the right to begin is no ground for a new trial 
 unless the ruling "tlid clear and manifest wrong" : Jlarr. C. L. P. Act, 2nd 
 
 I'll., -Mi. 
 
 The right to liegin is important, as it aluo involves, as we have seen, in some 
 measure the right to reply. The rigiit of reply as far as tlie Attorney (ienernl 
 is concerned wlieii appearing for the Crown, or any counsel apiH'aring for the 
 Crown having written authority from the A tty. -(General ftir that jmriiose, is 
 uimfftcted by this Ritli; as lie lias always tho right to reply no matter who 
 may have begun : see /(uk 3t»4. 
 
 070. Where, through accident or mistake or other cause, Evidence 
 apiuty omits or fails to prove some fact material to hisaccfdlntor 
 case, the Judge may proceed with the trial, subject to such j"„'^*8uj,'. 
 fact being afterwards proved at such time, and subject topHea. 
 luch terms and conditions as to costs and otherwise, as the 
 Judge shall direct ; and, if the case is being tried by a 
 jury, the Judge may direct the jury to find a verdict as if 
 such fact had been proved, and the verdict shall take effect 
 on such r t being afterwards proved as directed ; and 
 if not so pi oved, judgment is to be entered for the opposite 
 party unless the Court or a Judge otherwise directs. This 
 Rule shall not apply to an action for libel. J. A. Rule 271. 
 
 No corresi .. mding Eng. R. 
 
 The ahstii ng by a party from proof under an idea that his adversary hiul 
 no real intent ion of putting him to such proof, and being thereby taken by sur- 
 prise, is no ground for a new trial : -1 lulreics v SluarU 1 C. L. T. 724. See also 
 llealh V. Pwjh, (I B. D. 355. 
 
 In ajuilications to open up proct-edings, by way of review, on the ground of 
 newly discovered evidence, the party applying must shew (1) that the evidence 
 
596 
 
 Rules 
 677, 678. 
 
 Trial of 
 e<]uital)le 
 
 LeRal and 
 oquitablti 
 Ibsuus. 
 
 MISCKLLANEOUS PROCEEDINGS. 
 
 is such that if it had been broiiglit forward at the proper time, it might probably 
 have clianged the result ; (2) that at the time he might have so UMed it, neither 
 he nor his agent had knowledge of it; (3) that it co.dd not, with rcvsonable 
 diligence, have l)een discovered in time to have been so used ; and (4) the a.\: li. 
 cant nmst have used reasonal)le diligence after the discovery of the new evi- 
 dence : Diiiiilile V. <'iilinii-!i anil J'l'ln-huro' Ri/. <.'ii., 2!) (rr. 121; '('ulnitiKl 7V(w/4v. 
 CameriiH, 21 (ir. 70; see also < itrailicc v. C'urrii', 1!) (ir. 108; Wnlux v. SImde, 
 2 Gr. 218' Miirriii/ v. ('iniinlii tnihiil lini/inii/ Ca., 7 Ont. Aj)p. OKi ; .sV/mi/ v 
 J)f Jil.n/iuere, 10 l*. 1{. 11; JSiiiik »f li. A. A. v. Wexlurn Ask. V<>.,\i P. R 
 434. 
 
 The Court, on ivrgmnent of a motitvn by the phiintiff for .a new triiil, iillowed 
 the pliiintitf to give in evidence the proclamation bringing into force tlic Ontario 
 Factory Act : Itimi v. Unlnvi" ('"l/n,i Mllh Cn., !■'. Ont. 110. 
 
 An a)>plicatii)n to ])ut in further evidence, ar.l tor a new trial on frt'sli evi- 
 dence or for leave to bring a new action up ,n a part of tiie ori;,'inal claim 
 founded nu such evidence, is properly mnile to the .ludge wlioheanl tlie original 
 cause: liiiiil: n/' Uriliuli .Xnrtli Anu-ricu v. Western Asmtrdiicc Vn., 11 1'. H. 434; 
 Si/iukI v. /'(' lilinji'ifn; 10 1'. K. 11. 
 
 Where a party is taken by surprise by a ])oint made against him at the hear- 
 ing, the .ludgi' may, if he thinks right, at any stage of the trial allow liini to 
 ])r(Kluce rebutting evider.ce ; and if such |)ermissi(in is refused, tlic (.'unit of 
 .Alipeal will, in a proper case, jiermit tiie fresh evidence to be taken on the 
 appeal : /li;/-^/';/ v. hlr/:i,i.iuii, 4 i'li. I). 24, and Jlii/r oHo. 
 
 [n a suit fur an injunction to ri'strain a nuisance caused by a clieniic.il manu- 
 facturer, till' plaintiffs counsel a|)plied at the close of his s|M'ech for lihi-ityto 
 ailduee evidence to exi>lain (as the plaintiffs witnesses had had no oppoifniity 
 of doing) eirtain evidence of the defendant's Avitnesses as to various va|Kmrs 
 arising fmni a material (asphalt) stated to be used in the manufacture of vaiiiish 
 made i)y the plaintiff, and to show that the word asphalt had a donlile mean- 
 ing ; it was held that the evidence should be admitted : H). 
 
 A .Judge, may at any periiul in a case, allow further evidence to lie called, for 
 his own satisf!u;tion, by either party, even tliough it is doultftd whether the 
 party is entitU'd to put in such evidence as of right : Jiiuhl v. 'Mcisnn, 2!I\V. R. 
 102. 
 
 OTT. Wheie in any action equitable issues are raised by 
 the pleadinf^a, they shall be heard and tried, and the assess- 
 ment or inquiry of damages, if any, incidental thereto, sliall 
 be asst sed and inquired of by the Court or a Judge, with- 
 out the intervention of a jury ; but it shall be competent lor 
 the Court or Judge, upon the application of either party, 
 supported by suthcient reasons, to order such issues to be 
 tried or damages assessed by a jury. 11. S. 0. 1877, c. 50, 
 6. 257. 
 
 Where eq\iitable issues are raised, a jury is not of right, but of griice, under 
 this Huh : Adiiiiiniiii v. Aduiiiniiii, 12 I'. R. 41)0. 
 
 R. S. <>. 1X77, c. ")(», s. 2")7, was formerly held to ai>ply to an action of eject- 
 ment where ecpiitalde issues are raised : /Iri/iiii v. Mitilicll, ST. R. .S(I2. Under 
 tlie.lud. Act and Jtiili s thv rule will of course be the same in ejectment «« .fl 
 other actions. 
 
 It is witiiin the jiower of the .hidge to direct tiquitable issuf^s to '»' tf'lji 
 bv a jury; /.'"<■ v. M, lh,iii(l<l, 13 Ont. 3(54 ; see also W'ri'jht v. Smi Miilml,'B 
 C. 1'. 23ii. 
 
 W7H. Where in any action or otli^r proceeding at law 
 both legal and equitable issues are raised, such issues shall 
 
TRIAL. 
 
 597 
 
 be tried at the same time, unless the Court or a Judge, or g "^g" 
 the Judge presiding ai the trial, otherwise directs. K. S. 0. 
 1877, c. 50, s. 258. 
 
 ft7tt. In an action brought to recover the amoun'^ of ^^.'s'^^"^^.^ 
 any bill, draft, order or promissory note, and the damages coveiabio. 
 and interest, the expenses of noting and protesting, and all 
 other charges and postage mcurred thereon, it shall noi 
 be necessary to specially claim such damages, interest, 
 expenses, and charges, but the same shall be allowed to the 
 plaintiff at any trial, assessment of damages or reference, 
 as if the same had been specially claimed. 11. S. 0. 1877, 
 c. 50,s. 144. 
 
 CSO. Damages in respect of any continuing cause of Assess- 
 
 •■lent of 
 aiuages. 
 
 action shall be assessed down to the time of the assessment, d""' 
 
 Ni'if. 
 
 Taken from Eng. K. 1883, R. 482. 
 Sw /'/vV: V. y/«6«m, 14 Ch. D. 542. 
 
 OSl. The Judge if he thinks it expedient for the interest 
 of justice, may postpone or adjourn the trial for such time, 
 and upon such terms, if any, as lie shall think lit. J. A. 
 Rule 272. 
 
 T.lcntiail with th..' Eng. R. 187"), (). 3(1, r. 21, (ISS3, H. 458). Wlu'iv the 
 lieai-iiii,' (if ail action was adjourned to allow the plaintiffs to add parties, the 
 jilaiiititfs were ordered to pay all tiie costs incurred liy the action liaviuK lieen 
 111 the paper for hearing ; and not merely a fixed sum for costs of the day : 
 Li/ili(ll V. MiirliiLsoii, 5 Ch. D. 780. 
 
 Motions to postpone the trial may, of course, Ix' made before the trial, and 
 siioiikl he SCI iiuule, where practicablts in Chambers, before expense m preparing 
 fur trial is inciirivd. 
 
 For terms imposed 'vhere defendant obtained an order for ]>ostpi>nement 
 on payuieut of costs, and then notified i)laintitr's solicitor tiiat defendant 
 would not jiay the costs and trial must go (m, ui»n whicli plaintiff applied 
 to iK/atiMiiie, see Allen v. Mothers, 1!) C L. ,1. 7(». 
 
 The Master in Chambers on a motion to ixist])one the trial has under this 
 Ri'lf iK)wer to impose terms, f.;/., giving of securitv for the amount sued for : 
 Hunk „/ Ui,,iiill„u V. St,(rk; S) C. L. T. 410 ; 25 C. fj. J. iTOS. 
 
 The coats of iHtstponing trial on account of absence of a material witness 
 will 1)6 costs in the cause, where diligent efforts have been made to secure attend- 
 ance ; Brmni V. /'iirler, 11 P. R. 25(t ; but wliere the applicaticm is not made 
 pniniptly, tiie ai)i)licant may be ordereti to jiay the costs of the application and 
 adjoiiniment : Mel'.muhl v. McMilliiu, 22(ir.'362. 
 
 See Ftilrhiirn v. Household, etc., 53 L. T. N. S. 513, in note to Rule 671rt. 
 
 Adjourn- 
 ment of 
 trial. 
 
 0^2. Upon the trial of an action, the Judge may, at or -^idgemay 
 after the trial, direct that judgment be signed and entered try o^/fudg- 
 for any or either party, or adjourn the case for further "eserVe"' 
 consideration. J. A. Kule 273. judgment 
 
598 MISCELLANEOUS PROCEEDINGS. 
 
 BtUe 683. The English Rule Dec. 187(>, R. 3, (1883, R. 4(>3) has the following additional 
 words : " Or leave any party to move for judgment. No judgment shall be 
 entered after a trial without the order of a Court or Judge." 
 
 See notes to sec. 61 of the Act and Rule 749. 
 
 Where at the trial it apijears, at the close of a plaintiff's case, that there is no 
 evidence against one of the defendants, it is within the discretion of the Judge 
 whetlier he will then direct a verdict in stich defendant's favour, or wait 
 till the whole evidence in the cause closes : Ptiriiell v. drcat Western Raiboau 
 Company, 34 L. T. N. S. 12« ; see 1 (I B. D. G30. 
 
 In such a case, the action being for negligence, on(^ of the defendants called 
 witnesses, the effect of whose evidence was to throw the blame on his co-defen- 
 dant, and they were cross-examined by the latter's counsel, a verdict bein^ found 
 against this defendant and in favour of the other ; it was held that tliese eirciun- 
 stances did not entitle the unsuccessful defendant to object to the verdict ; lb. 
 
 Where there are several distinct issues to be tried, the Judge may, without 
 the consent of the parties, accept the verdict of tlie jury u|H)n those issues on 
 whicii they agree, and discharge them uixm the othei-s, leaving the parties if 
 they think fit to take dosvii the undecided issues U> a new trial ; and tiic Court 
 will give judgment on the decided issues, and has power to send down the 
 undecided issues to a new trial : Marsh v. hunes, 4.') L. .T. C. 1*. tA)h. 
 
 This Rule rejwaled in effect R. S. O. 1877, c. .51, s. 34, under which, judgment 
 in ejectment, vniless the Judge at the trial otherwise directed, could not be 
 entered before the .'ith day of the Term following. Under the j)resent RuUs 
 judgment in .actions to recover land, as in all otliers, (see /{nlc^Hu) may be 
 entered at once unless the Judge otherwise directs: see Riidil \, Frank, \" 
 Ont. 758. 
 
 An application to stay the entry of judgment, or the issue of execution, is best 
 made at the trial when all the facts are known to the .fudge. If not made till 
 later it may be necessary to sliow on affidavit circumstances making a stay 
 just: see Tuck v. Suitl/iern CounUe.f,ete , ]iauh, (51 L. T. N. S. 1.5!). 
 
 After a judgment by consent has l>een |>assed and entered, it cannot after- 
 wards be vnried on the ground of mistake, except for reasons sufficient to set 
 aside ail iHjieenient : Attunieii-denerul v. Tuniliiie, 7 Ch. I). .'588. As to.'iiiiiealx 
 in sucii oases, see s. (J.5 of tlie Act and notes. 
 
 When thi! Judge does not flin'ct judgment to be ent<'rcd, tliis Hi'h' would 
 seem to enable him, as f(;rnierly under I?. S. (). 1877, c. .50, s. 2r>2, to indorse on 
 tlierecor;iorcoi)yof pleadingshisjudgment,u|)on which judgment ni.'iy hecnten'd 
 as thcdgh t\w indorsement had been made at the trial ; or he may, after tlie 
 f.-vcts have In'en foinul by the jury or by the .Judge at or after tlie trial, iiidorfie 
 the finding, and leave the ])arties to move for judgment before him. In such 
 case tlie .fudge, after a finding by the jiu'y for the plaintiff, cannot on -lotion 
 for judgment, direct a judgment for defendant to be entered on the ground 
 that tliere was no evidence to go to tlie jury : /'idiiis v. />iiiii/i'riiili/, 51 L. T. 
 N. tS. j53.5. The power seems to have been assumed in /Afc/cv v. /•V//', 4 Ex. 
 D. 33, though the Judge on consideration could not say tliat tliere was no 
 evidence to go to the jury. See also s. Ol of tlie .\ct and /tinni v. Simmins, 48 
 L. T. N. S. 343, and llirmilton v. Johnson, 5 Q. H. D. 2()3. 
 
 When the jury disagnu^ ancl are discharged, a motion for judgnifiit and non- 
 suit may l)e made : RideVM; and .see lUtnk of li. .V. .1. v. A"'/'///, Patterson, 
 J. A., Nov. 1883. In that casi! the action was uih)Ii i)romissiiry notes : the 
 defence relied on was the insolvi-ncy of the defendant, and his discharge under 
 a deed of comfKisition and discharge duly confinned. In reply the plaintiffs 
 attacked the discharge on the grounds of fraud, and fraudulent preference. 
 Objections were taken to the validity of the discharge upon facts wliicli were 
 undisputed, and as to certain other matters of fact whicli were disputed, ovidence 
 was gone into, to show that the discharge h;id been obtained Ity fraudulent 
 jireference of a creditor, and by giving to that creditor a valuable security. At 
 the trial the defendant objected that there was no evidt-nce to go to tiie jury. 
 Without deciding whether there Wivs, or was not evidence, tlie question was left 
 to the jury by the Judge, anfl this and all other fiuestions were reserved for 
 iliscu8si(m on motion for judgment. The jury disagieetl and therefore left the 
 
 Ai- 
 
TRIAL. 
 
 599 
 
 question unanswered. Navertheless both parties moved for judgment, the Jlules 
 plaintiffs contending that on the undisputed facts, objections fatal to the dis- 683-686. 
 charsre were established: the defendant contending that the discharge was 
 fffioff as against such objections, and tiiat there was no evidence proj)t-,r to go 
 to the jury on the issue fif fraud, or fraudident preference. Both motions were 
 refused tlio\igli ajiparently considered |)roi)er in point of form, the Judge being 
 (if tile ()|)ini<)n tliat the isr.ue as to tiie validity of the discharge could not pr'- 
 iierly have been withdrawn from the jury, and that the tmdisputed fivcts were 
 not, without the matters left to the jurv for c(msideration, sufficient to decide 
 the question as to the validity of the discharge. 
 
 As to the effect of the withdrawal of a juror, see Thomas v, hxeter, etc, Co., 18 
 Q. B. I). 822. 
 
 0.S3. Exhibits put iu at the trial are to be marked thus : Exhibits at 
 "In the High Court of Justice — Div. [sJurt title]. This to be 
 exhibit (the property of ,) is produced by the plaintiff™*'''*''- 
 
 (or defendant C, as the case may be,) this day 
 
 of 18 A. B.," {Registrar, 
 
 Deputii Clerk, Deputy or Local Re(jistrar.) Chy. 0, 177. 
 
 6S4. Where a party or witness is examined at the trial Evidence 
 or a document is put in as evidence and marked by the document- 
 Uegistrar, Deputy Clerk, Deputy or Local Registrar, the Se'^wuh""* 
 deposition of the party, or witness so examined, or the ^^f.*jY°„t 
 document so put in, is not to be withdrawn as evidence leave, 
 without the leave of the Court. Chy. 0. 178. 
 
 See Viinntlo v. MitcheU, 13 (Ir. (Kif). 
 
 fHHti. Where judgment is reserved, the exhibits used at where 
 the trial shall be deposited with the Registrar, Deputy Clerk, i"seryeii ; 
 Deputy or Local Registrar, for the use of the Court, and ]',^,'jeJf'' *° 
 
 shall not be delivered out without order 
 parties. See Chy. 0. 179. 
 
 or 
 
 witli 
 consent of l\e«i8trar, 
 
 etc. 
 
 6S<». Wlieve, upon the trial of an action, it appears that 
 the same ('annot conveniently ])roceed by reason of the 
 soHcitor for any party having neglected to attend personally 
 or by some person in hisbehalf, or having omitted to deliver 
 any paper necessary for the use of the Court, and which 
 according to its practice ought to have been delivered, such 
 solicitor shall personally pay to the parties such costs as 
 the Court thinks fit to award. Chy. 0. 182. 
 
 A solieitiii- who negh-cted to a|)i)eftf for a defendant for whom he had under- 
 taken to appear, was ordered to pay all costs occasioned by liis neglect : Conk 
 Y. Ilrn„„ihr,„/, 1(! Ves. i:« ; and see C ,ii rliifii v. Stork, 2 Dr. & War. 2.')!. The 
 Common Law C(uirts exercised a similar jurisdiction : Tmonli'i/ v. Jonvs, 29 L. J. 
 C,P.2!t!t. 
 
 Where no |)apers were delivered, and the plaintiff did not appear, the .action 
 was dismissed, with costs: F.irrrll v. Wal; .31) L. T. N. S. O.") ; Kl'Ind'je v. 
 
 When ac- 
 tion cannot 
 (iroceed in 
 conso- 
 quence of 
 absenoe of 
 solicitor, 
 he may bo 
 ordered to 
 pay coHtB. 
 
 Plaintiff 
 not appear- 
 ing, action 
 
600 
 
 Rules 
 687-689. 
 
 uiiiy bo dis- 
 missed. 
 
 Proof of 
 counter 
 claiui. 
 
 Bestoriug 
 action. 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 llnrijesK, " Cli. D. 411. But where the defendant litus a counter-claim he is 
 iMiund to jjrove it .so far as the onus iH on him, even thougli the phiintiff does not 
 ai>i)Oiir : RiilfVu'i. If tlio defendant d(»es not ap|)ear tiic [tlaintitf niuMt prove his 
 claim so far as the onus is on him ; Rule (J72. 
 
 Wiiore tlie action is dismissed in consequence of the plaintiff not being ready 
 to proceed, owing to the illness of iiis solicitor, it may l>e restored on payment 
 of th(M!ostsof the dav and of the application to restore: Hirrh v. W'iilifim 
 W. N. 187(!, 108 ; 34 VV. K. 700. 
 
 As to restoring causes struck out on acc;ount of tim absence of counsel, see 
 Ifiirn-ii V. Ri'iiiiit, 12 .lur. 445 ; ai'd as to costs so occasioned, f-itilsna v. Hall 
 7 C'l. & Fin. r.ti). 
 
 By whom iiH7' The Registrar, Clerk of Assize, or other officer 
 flndiuBs to present at the trial shall enter all such tindings of fact as 
 e ma e. j.^^^ Judge may at the trial direct to be entered, and the 
 directions, if any, of the Judge as to judgment, and the 
 certilicates, if any, granted by the Judge, such entry to be 
 made in a book to be kept for the purpose, and also to be 
 indorsed on the Record. J. A. Rule 274. 
 
 See Eng. R. 1875, O. SO, r. 23, (18S.S, H. 4(i5). 
 
 The practice undt'r the English Rule is substantially the same as that which 
 this Ri'k provides, exce|)t that the certificate is not required to lie indorsed on 
 the copy of the pleadings. 
 
 Certificate OH.S. The Said indorsement, or the certificate of the 
 omcer.^'*"' said officer or the certificate of the Judge, shall be a suffi- 
 cient authority to the proper officer for signing judgments 
 to sign judgment accordingly. The certificate may be in 
 the Form No. 213 in the Appendix. J. A. Rule 275. 
 
 The Eng. R. 1875, O. 3(5, r. 24, (1883, R. 4f)(i), is the same in suhiitaii'e. 
 
 Fonnerly, in the Courts of Common Law, wlien a cause wjvs «'nter<fl for trial, 
 a copy of the record showing tiie issiie to l)e tried, called the nisi /irins record, 
 was deposited with the officer. After the trial the nisi iirins record was 
 indorsed with the jnistea sh(>wing the result of the trial, and delivered to the 
 successful party as s(M)n as he Wivs entitled to sign judgment. The |K)ssessioii 
 of the ix)stea pn)ved his right to judgment and was the warrant to tli" iimiwr 
 officer to enter the judgment. A certified oojiy of the pleiwlings for tlie use of 
 the .Fudge, is now the record under Rule ()(»4 ; and the certificate provided by 
 the present Riili't, 087, and 088, takes the placts of the (Htstea. 
 
 In Chancery, there was no nisi /iriitu recoitl, and no cojty of the pleadings 
 was provided for the use of the .Judge. He ivferred to the originals at the 
 trial or hearing ; and in case of reserving judgment Counsel's briefs were left 
 with him. 
 
 ■ Vii 
 
 When and OHO. The Registrar, Clerk of Assize or other officer 
 piTyritrks present at the trial shall, after judgment has been given, 
 ?iverre"ord ^^t ^^ J^^T cascs, after the time for the moving for a new 
 toBoUci'tor ^^'^^^ '^^^ expired, deliver to the solicitor of the party 
 or parties, entitled thereto any Record in their custody, upon getting a 
 receipt for the same. R. S. 0. 1877, c. 50, s. 280. 
 
TRIAL OF H. C. CASES IN COUNTY COURT, KTC. 601 
 
 (ii) Trial of High Court cases in County Court and Vice ^^^" 
 
 Vcrifd. 
 
 690-694. 
 
 000. In any of the cases in sections 96 and 97 of The ^j.'j',[j';;j°^ 
 Judicature Act the notice of trial or assessment of damages insiich 
 shall state that the cause will be tried, or the damages™**"*" 
 assessed at the Sittings of the High Court or County Court, 
 according to the fact. R. S. 0. 1877, c. 49, s. 33. 
 
 601. Nothing herein contained shall prevent a Judge t'''''^'*';"''>' 
 
 , , , * 1)0 post- 
 
 of the Court in which the action is brought, or, after tlioiionud. 
 action is entered for trial or assessment, the Judge before 
 whom the trial or assessment is intended to be had, from 
 entertaining applications to postpone the trial or assess- 
 ment. R. S. 0. 1877, c. 49, s. 34. 
 
 Iiiii Cfmiityt'ourtcase dirt-cted to be triwl iit tlie HIkH Court, a motion to set 
 aside iKitici' of trial must be made in the County Court; Clftr/r v. t'lilf'unl, 7 
 P. R. 32!l. 
 
 002. Where judgment is not reserved, and subject in Jii""i»''iiftto 
 that case to Rules made, and subject in all cases to Rules to ' ^^ ' 
 
 be made, judgment in any of the said cases may be entered 
 immediately, unless the Judge who tried the cause certi- 
 fies on the record, under his hand, that the case is one 
 which, in his opinion, should stand to abide the result of a 
 motion that may be made therein in the Divisional Court, 
 or unless a Judge of the High Court otherwise orders. 
 R. S. 0. 1877, c. 49, s. 35. 
 
 003. Any motion to be made, in respect to the trial. y"tjj'jj«. 
 judgment, verdict or assessment of damages in a High Court dU't in 
 case tried or assessed at the Sittings of any Countv Court clmJitri"" 
 shall be made in the High Court. R. S! 0. 1877, c. 49, j^'oj;;;';'"^ 
 8. 36. 
 
 004. Any motion to be made in respect to the trial, Motion 
 judgment, verdict or assessment of damages in any County <uct, etc.. 
 Court case had, tried or assessed at any Sittings of the rl,l,v"cases 
 High Court, shall be made, heard and determined at the J[!^;',| 'J^^^^.f^ 
 sitting of such Divisional Court of the High Court, as the sittiuf^s, 
 partj' moving or applying elects, and according to the 
 practice of the High Court ; and any order made in such 
 
 cause by such Court shall be final, and shall not be sub- 
 ject to appeal to the Court of Appeal. R. S. 0. 1877, c. 49, 
 8. 37. 
 
 See Kdmmils v. linen, 35 U. C. Q. B. 495. 
 
wmmmm 
 
 ■ 1 
 
 «02 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 ■County 
 Court 
 causes 
 tried be- 
 fore hiiti 
 
 Im-698 ®^*5. In any action in a County Court entered for trial 
 
 Powers of ^^ ""Y Sittings of the High Court, the Judge presiding at 
 Judge a» to the Sittings shall have the same powers as to amendcQent 
 of the pleadings and proceedings, putting off the trial, 
 reference, making the cause a remanet, and otherwise deal- 
 ing with the cause and proceedings therein, as if the action 
 had been commenced in the High Court. R. S. 0. 1877, 
 c. 49, 8. 38. 
 
 The .Tiidge of a County Court may allow ainendmentH in High C!ourt cases 
 coming on before him for trial : Ri)i<j v. Ulaaafunl, 11 C. P. 41K). 
 
 When such 606. Whenever the said Judge Incio..ses on the certified 
 marYsro- copy of pleading in any such action the word " Remanet,'" 
 remanet; and adds any words to the effect following : "And the with- 
 
 be'tiiedaY''* ^^'''^^ ^''''i/ '^^ ^'''^''*^'' '"''^ ^Hcrf ot any County Court, or 
 Byxbsequout sittings of the Hiyh Court," su^^h cause may without pay- 
 Assizes""^ ment of any further fee for entering the case be entered at 
 any subsequent Sittings of the County Court, or Sittings of 
 the High Court, for which notice of trial may be given, and 
 the case may be tried and disposed of in the same way as 
 any other case entered at such Sittings. E. S. 0. 1877, 
 c. 49, s. 39. 
 
 01>7. On the application of any party, the County Court 
 Clerk shall, at the cost of the party, forward to the Regis- 
 trar at Toronto, of such Division of the High Court as the 
 party designates, a certified copy of the Judge's notes of 
 the trial, or assessnent, together with the Record and the 
 exhibits, to enable the High Court properly to dispose of 
 any application made, or to be made, in or respecting such 
 cases. R. S. 0. 1877, c. 49, s. 42. 
 
 Certified 
 ■copy of 
 notes of 
 ■cases. 
 
 Vexatious 
 defence 
 without 
 merits. 
 
 (iii) Vexations^ Defences in Actions to Recover Lund. 
 
 ii\^H, It being desirable, in actions to recover land 
 brought against persons who are merely intruders, not to 
 prevent plaintiti's from recovering land of which they have 
 just claim on account of some want of technical form in 
 their title, or some imperfection not atfecting the merits of 
 the case, and of which mere strangers to the title, having 
 no claim or colour of legal claim to the possession, should 
 not be permitted to take advantage ; the plaintitl' or his 
 solicitor, in any action to recover land, may serve a 
 notice upon the defendant or his solicitor in words or 
 to the effect following: "Take notice that I claim the 
 
 J. I < 
 'i 
 
IT 
 
 INSPECTION OF PROPERTY. 
 
 603 
 
 premises for which this action is brought as the ^o/ja^'^" 
 0e purchaser thereof, from A. B., {or as the case may 
 be), and that you will be required to sho^v upon the 
 trial of this cause what legal right you have to the posses- 
 sion of the premises." B. S. 0. 1877, c. 51, s. 26. 
 
 See /)'«• (/. Li/onn v. Crawfuril, (i O. S. 344 ; A rmntroiui v. Little, 20 U. C. Q. B. 
 425 ; Uniia v." Van Normtn, 30 U. C. (I B. 437 ; Thompson v. HaJI, 31 
 I' C. Q. B. 3«7 ; Booth v. Girdwood, 32 U. C. Q. B. 23 ; Thompmrn v. lieniutt, 
 22 C. P. 3!t3. 
 
 690. If, upon the trial of such action, the evidence of j^^o™i|^ji ''«- 
 title given by the plaintiff satisfies the Court (and the Jury, plaintiff's 
 if the case is tried by a jury) that he is entitled in justice "*'*' 
 to be regarded as the proprietor of the land or is entitled 
 to the immediate possession thereof for any term of years, 
 but that he cannot show a perfect legal title by reason of 
 some want of legal form in some instrument produced, or 
 by reason of the defective registration of some will or 
 instrument produced, or from any cause not within the 
 power of the plaintiff to remedy by using due diligence, the 
 Judge, or the jury, under the direction of the Court, may 
 find a verdict for the plaintiff, unless the defendant or his 
 counsel, upon being required by the' other party so to do, 
 gives such evidence of title as shows that be is the person 
 legally entitled, or that he hona fide claims to be the person 
 legally entitled to the land, by reason of the defect in the 
 title of the plaintiff, or that he holds, or hnnaJhJe claims to 
 hold, under the person so entitled. R. S. 0. 1877, c. ,51, s. 
 27. 
 
 700. Where a verdict or judgment is rendered or given voniictto 
 inider the authority of the foregoing provision, it shall bcdorsodas 
 indorsed as rendered or given under Mules 6{)8 and 699, Ji""{!f/*'' 
 and it shall be stated in the judgment to have been so ''«'**• 
 given, and in any action thereafter brought for the mesne 
 profits, such judgment shall not be evidence to entitle the 
 plaintiff to recover. B. S. 0. 1877, c. 51, a. 28. 
 
 (iv) Inspection of Property. 
 
 TOI. It shall be lawful for any Judge, by whom any :Tiui«e may 
 cause or matter may be heard or tried with or without a '"*^'^''*- 
 jury, or before whom any cause or matter may be brought 
 by way of appeal, to inspect any property or thing concern- 
 ing which any question may arise therein. Eng. E. 1883, 
 
 Taken from Eng. }{. 1S83, (100. 
 
 '^5. 
 <"'\ 
 
 M 
 
 : JK J ^ v*it*i! 
 
604 
 
 KuleB 
 702, 703. 
 
 Inspection 
 of rual or 
 liorHoiial 
 property 
 
 by jury.' 
 parties or 
 
 WitllCSSOK. 
 
 X2 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 70S. Either party in an action may apply to the Court 
 or a Judge for an order for the inspection by the jury or by 
 himself or by his witnesses, of any real or personal pro- 
 perty, the inspection of which may be material to the pro- 
 per determination of the question in dispute, and the Court 
 or a Judge may make such order upon such terms aa to 
 costs and otherwise, as the Court or Judge may think fit. 
 R. S. 0. 1877, c. 50, s. 108. 
 
 Lil)erty wius given under the niniilar Irisli Rule to insjiect a nliii) lying in 
 liarlxmr on which it was alleged that certain tinilier, part of the siihject iimttfr 
 of the notion, luwl Iteen placed by d(^fendant for removal : Marfis xJIihoH^ 22 
 L. R. Ir. 77. 
 
 . irtyi-o- yOJJ. Upon any application for a view by a jury, there 
 view, to do- shall be an affidavit stating the place at which the view is 
 siioriirMim to be made, and the distance thereof from the Sheriff's 
 pousoa!"'" ol^<^e. Unless the Court or Judge otherwise orders, the 
 party obtaining the order for the view shall deposit with the 
 Sheriff the sum of $25 in case of a common jury, and S34 
 in case of a special jury, if such distance does not exceed 5 
 miles ; and §31 in case of a common jury, and §43 in case 
 of a special jury, if the distance be above 5 miles ; and if 
 such sum shall be more than sufficient to pay the expenses 
 of the view, the surplus shall forthwitli be returned to the 
 party who obtained the view, or his solicitor, and if such 
 sum shall not be sufficient to pay such expenses, the defi- 
 ciency shall forthwith be paid by such party or his solicitor 
 to the Sheriff. Rules T. T. 1856, 39. 
 
^^li 
 
 CHAPTER VII. 
 
 lUDGMENTS— MOTIONS FOR JUDGMENT, Etc. 
 
 1. 
 
 l)KFArr.T OK Ai'i'KAKAXci:, 704- 
 
 718. 
 
 '). 
 
 
 (i) (ii'itcriillii, 704-712. 
 
 (5. 
 
 
 (ii) Doici'i; 713. 
 
 7. 
 
 
 (iii) lli'coirni of Lund, 714-7H>. 
 
 
 
 (iv| Mortiiditc Actions, 717-71H. 
 
 8. 
 
 •) 
 
 Dkkai-lt ok Pi.KADixti, 71(»-7"2t». 
 
 il. 
 
 8 
 
 ("dXKKssioN OK Action, 730-738. 
 (i| Cwnernlhi, 730-737. 
 
 in. 
 
 
 (ii) liiti'i-im iiliiiiDiii/, 738. 
 
 11. 
 
 4. 
 
 Lk.wk to Skin Juuomext, 739- 
 744. 
 
 12. 
 
 Ai'i'LitATioN Fon Account, 745- 
 
 747. 
 Motion kou Jidomknt, 748-758. 
 Sktti.emknt ok Jtdo.ments ani> 
 
 Ohdkuh. 759-703. 
 Entry of Judomknt, 7(14-775. 
 Form of Jfiximfnth, 770-779. 
 Variation ok .IrmniKXT, 780- 
 
 780. 
 Satisfaction, 787. 788. 
 Motions aoainst Judoments, 789- 
 
 802. 
 
 1. Default of Appeauanck. 
 
 (i) Generally. 
 
 704. Where any defendant fails to appear to a writ of 
 summons and the plaintiff is desirous of proceeding upon 
 default of appearance he shall, before taking such proceed- 
 ing upon default, file an affidavit of service, or of notice in 
 lieu of service, ior the undertaking of the defendant's 
 solicitor accepting service and agreeing to enter an appear- 
 ance, with an affidavit verifying the undertaking file,] as 
 the case may be. J. A. Rule 71. 
 
 This Eiih' correal xmi Is with the Eiig. R. 1870, 0. 13, r. 2 (1883 R. 102), e.xcept 
 that the dan-r in brackets is not in the latter. Hi'lr 225 provides for a solici- 
 t(ir's uiul' It iking to acce|)t service. Rii/c 745 i)rescrilK's tlie procedure in case 
 ofdcfaiiii lit a))|)earance to a writ indorsed under /lii/c, 247 with a claim for 
 
 nil account. 
 
 The sulistitntion of notice in lieu of service of the writ is authorized in cases 
 where tlie Court si'es fit to allow that mode of service, in any case where the 
 Jihiintiff i.s unal)le to effect prompt personal service : Rule 2'tS. 
 
 Wiiere a notice was served in lieu of a writ, an affidavit stating that 
 Oi'fi'ndant had been served with "a notice in writing, a true coiiy of which is 
 liireto aimexed," was held sufficient : Bus/ros v. nustms, 14 CIi. D. 849. In 
 ciisHs, however, in wliich Rule 250 applies, the affidavit of service should state 
 the (lay on wiiich the indorsement of the time of service was niiide. 
 
 Ihe writ sliould he. anne.xed to the affidavit of service in accin-dancc witli 
 tlw former practice : The Eppos, 32 W. R. 154 ; 49 L. T. N. S. 004. 
 
 Proceed- 
 iiiKs in (le- 
 f Mil It (if ap- 
 pearance. 
 
606 
 
 JUDGMENT. 
 
 Rule 700. Ah tliiH Jtuli" roq\iiri'H an affidavit it ha»< Ih-pii held that the Court will not 
 accept a certificate, tlioiigli IkitiHti CoiisuU, in the country to \vliich the 
 defendant Ix-longed, had inHtnictionH not to aduiinlHter oathx to Hiibjectt of 
 tliat comitry : Fm-d v. Mieurb; 1(> (.1. 13. I). 57. 
 
 Where writ 
 
 Bpecially 
 
 iudorBocl. 
 
 Setting 
 aside jud},'- 
 uient. 
 
 705. In case of non-appearance by the defendant where 
 the writ of summons is specially indorsed under lUile 245, 
 the plaintiff may sign final judgment for any sum not 
 exceeding the sura indorsed on the writ, together with inter- 
 est at the rate specified, if any, to the date of the judgment, 
 and a sum for costs, and the plaintiff may [forthwith] issue 
 execution upon such judgment ; but it shall be lawful for 
 the Court or a Judge to set aside or vary such judgment 
 upon such terms as may seem just. J. A. Rule 72. 
 
 SeeEng. R. 1875, O. 13, r. 3 (1883, R. 103). 
 
 The original 7t;,'^' had a i)rovi(*i()nthat execution should not issue until 8 days 
 from the last day for apixNirance. That was taken from R. H. (). c. 50, s. ;i4 
 (with which, in that reH|)ect, the English C L. P. Act of 1852, s. 27, corres- 
 ponds). Execution m.-y now in all cases be issued forthwith, unless otherwise 
 ordered. Hee Rii/r 803. 
 
 Cnrnhh v. Mannim/, 18 C. L. J. 143; 2 C. L. T. 10.5, and MacdimiMs: 
 Cromhit; 2 (Jnt. 243, decided under the former practice, are n(j lunger 
 ai)plicable. 
 
 In an action on a promissory note, the ])laintifT may sign judgment by 
 default of api>earance to a specially indorsed writ, without production of the 
 note : Oliirr v. Fnirr, 7 1*. R. 325. 
 
 Where an action is commenced in a local office, a judgment by default slioiiM 
 l)e entered in the local office: Chamhcrlain v ArvMtromj, 18 C. ii. il. 9!l. 
 
 Where the coi)y of writ served was not an accurate cony, the tiatf beinj; 
 1880 instead of 1882, this was held to be an imperfection only and not a fatal 
 error.and a motion to set aside a judgment signed was refused; Weauns. 
 HUtlker, 47 L. T. N. S. 444. 
 
 iTudgment can only Iks signed for the amount due at the time the writ 
 was issued, not for chiinis which had not then matured : Park v. PutUm, i 
 C. L. T. 204. 
 
 In an action for fort^closure and on the covenant for payment, judgment wait 
 signed on a claim on the covenant under this I'lde ; lihsct v. Jonm, 32 Ch D. 
 (535. But the practice in Ontario is not to sign a se|)arate judgment on the 
 covenant, but to sign one judgment, which awards relief on the covenant, and 
 also jtrovides for redemption or sale, or foreclosure. 
 
 Forms of tlie judgment will be found in the App. Nos. 160 and 101. 
 
 Under R. S. O. c. 50, s. G4, it was provided that an application to set aside a 
 judgment must be based u|K)n affidavits "accounting for the non-api)earance 
 and disclosing a defence ujxm the merits." By the jjresent Rule the matter is 
 left at large to the discretion of the Court or Judge; but, no doubt, iu practice 
 it will be required to have the iion-ai)pearance explained and a defence shown. 
 The terms commonly imjiosed have l)een the payment by the defendant of the 
 costs of the application, pleading without delay, and sometimes bringing money 
 into Court : see Harrison C. L. P. Act, (R. S. O. 1877, c. 50, s. 04,) ; Arch. I'r. 
 13th ed., 7!K), and 800; and Smith v. DolMn, 3 Ex. D. 340. In HUtiiardx. 
 •Swan, 12 1*. R. 220, the judgment and execution were directed to stand as 
 security. 
 
 Substituted service, when regularly (fffected, is for all purposes equiviilent to 
 |)ersonal service, and even though it has in reality never come to the knowle<ige 
 of the defendant he will not be let in to defend as of right : Watt v. linrnrtl, 
 3 Q. B. 1). 183, 363. Lapse of time is nc bar to an application to set aside a 
 
DEFAULT OF APPEARANCE. 
 
 GOT 
 
 judgment obtaiiieii by default, whore no irri'imrable iiiiHcliinf will be douo to Rules 
 the plaintiff, and tlic injury causod Iv, 'Im di^lay may b(i coniix-nHatt'd fur 706, 707. 
 bv payment of ooNts : Atwooil v. (ViirhiHtrr, 3 t^. R. I). 722. See alMo 
 Diivin'y. JMlrmlm, W. N. 1882, i»2 ; 4(i L. T. N. H. 7!t7, and notes to /{uI>'k 7'X>, 
 and 7iMi. 
 
 The application will not bo grautetl to pive the defendant the advantage of a 
 technical defeni-e : Forhrs v. Mitlillelon, 2 Str. 1242. 
 
 Tile followinff liave been considered meritorious defences: T'le .Statute of 
 Limitations; Maildockn v. Holiiun, 1 15. & 1'. 228; Mclntiirc v. The VnnwUt 
 Co., IS (Jr. 'MM ; Siatiin v. Fniirick; 7 V. 11. 14(5; Usury: 2'rii-c if- Lixin Co. of 
 Camdaw /I'ullon, 18 (ir. 231; Infancy: DvhiJieUl v. Tdinur, T) Taunt. 8.')(); 
 Cavollitr V, Micharl, 17 L T. N. S. 2!((); that the claim is not one that can 
 be simcially indorseil : /loi/irs v. Hunt, 10 Kx. 474; Want of jurisdiction; 
 Hitiiiihin V. Wkiti; V. R. 120. As to want of stamps : see Cawjhill v. ('/itrk; 
 !l P. li 471. 
 
 700. Where there are several defendants to a writ where 
 specially indorsed for a debt or liquidated demand iu money fenaants^' 
 luider Kule 245, and one or more of the defendants appear 
 to the writ and others of them do not appear, the plaintiff 
 may enter linal judgment against such as have not 
 appeared, and may issue execution upon such judgment, , 
 without prejudice to his right to proceed with his action 
 against such as have appeared. J. A. Rule 73. 
 
 This IMf is to the same effect as the Enj?. R. 1875, O. 1.3 r. 4 (1883 R. 104). 
 Before the .Tud. Act, in such a Ciise, the |)laintiiT might sign judgment against 
 the defendants who did not appear, and might issue execution against them ; 
 but, if he did so, he abandoned his right to |)roceed against the other defendants. 
 Or he nii^'ht, imfore levying execution against the defaulters, declare, and 
 proceed with the action, against the other defendants. But in this case the 
 judgment alreiuly signed became a more interlocutory one ; the plaintiff could 
 never put it in force, unless and until he succeeded in obtaining judgment in the 
 action against the other defendants. See R. S. O. 1877, c. 50, 8. li!). 
 
 Si-e MoHttjoineri/ v. Fcrri.s, 20 L. R. Ir. 282. 
 
 707. "Where the defendant fails to appear to the writ of where writ 
 summons and the writ is not specially indorsed, but theafiyln-"'" 
 plaintiff's claim is for a debt or liquidated demand only, no dorsed. 
 statement of claim need afterwards be delivered, but the 
 plaintiff may file an affidavit of service of the summons, or 
 of notice in lieu of service as the case mav be, and [file 
 and serve] a statement of the particulars of his claim in 
 respect of the causes of action stated in the indorsement 
 upon the writ, and may, after the expiration of eight days, 
 enter final judgment for the amount shewn thereby, and 
 costs to be taxed, provided that the amount shall not be 
 more than the sum indorsed upon the writ, besides costs. 
 J. A. Rule 74. 
 
 This is the same as the Eng. R. 1875, 0, 13, r 5, excejjt that tiie words in 
 liracicets are not in English Rule. 
 
 Under the old j)ractice, the i)laintiff filed and sei ved a declaration, and if no 
 plea were pleaded he could, if the amount cliiimed were indorsed on the writ, 
 
i 
 
 608 
 
 Rule 708. 
 
 Wluuo 
 
 fliiiiii fill- 
 dittt'iitioii 
 
 Ullll IIL'C'U- 
 
 iiinry 
 
 (i iiiiii(,'os or 
 
 t'lthlT of 
 
 tlifiii. 
 
 JUDOMENT. 
 
 Hiifii Hiiiil jiKlffiiu'iit for (li.'fiuilt of II |)l»'u for tlic ainntnit ho hIicwii and c(*t«. 
 Tlut tiling' or Hcrvinx of it (It'cliinition im now (liH|i<'iiMc<l with, unci tin- lilin);an(i 
 MLTviii^ of II NtiittMiH'iit of tlix piirtieulurM of tlic cliiiiu in Hiil>Htitiitt>(|. 
 
 A cliiiiii for II H|M'(Mti('(l Hiiiii for work, liil>oiir iind ntt(>ii(laiu:*t iix uiiiiMlicalinan 
 liiiM Imm'ii held to In' ii li(|ui<iat(Ml (Iciiiund mid ciipalilfof In-jii^ iiiiuIi' tlit'Niilijti't 
 of 11 HiM'cial iiidoi'Hfiiicnt, or, tliou^li the writ Ih- not Hpcoially indorsed, toi'iitjtle 
 till' |)liiintitf to obtain tinal ,iud^'lll)'nt nndcr tlic Unlit in tint Irish .Imlictture 
 Act corrcsiiondiny /tulr Ut the |irc.scnt : Kiti/Krilf v, Melinim, H L. |{, Jr. 
 
 3:)4. 
 
 The eiVMc of Homo defcnihintH only niiikinp: default in not HixKiially in-ovidwifur 
 as it is in the case of a specially indorsed writ. I'rolialily a Htateincnt of claim 
 must then Ih' delivered to the solicitor of those defendants who hiive upiH'imil. 
 
 Forms of jiid^riiient will lie found in tlieApp. Nos, Kill, 1(11. 
 
 It is pnivided liy /{iili 117i") that the jilaintitf is not to lie entitled to tlicciwtn 
 of the statement of piiiticiihirs of his elaini, unless the taxilij,' otHcer is siitinfiwl 
 that there \mis pxid reason for not si>ecially indorsint; tho writ, so as to reiidtr 
 uniittccHHary tho filinsf and Hurvin^ Huch HtatemcntH. 
 
 70M. Whore the (Icfeiidant fails to appear to the writ of 
 siimmonH and tlie phiintitr.s claim is not for a dcht or liqui- 
 dated demand only, but for detention of goods and poeuniary 
 (lanuiges, or either of them, no statement of claim need be 
 delivered, hut interlocutory judgment may he entered, and 
 the value of the goods and the damages, or the damages 
 only, as tiie case may be, in respect of the causes of action 
 disclosed by the indorsement on the writ of sunnnons Bliall 
 be assessed [at a sitting of the High (Jourt^for trials, oral 
 the County Court of the (Jounty in which the action is 
 brought; . J. A. Rule 75. 
 
 This correspondH with the Enp. R. IKTo, (). 1.3, r. (i, (IHS.S, H. KC.), fxcept 
 that the latter iirovides for a writ of iniiiiiry to assess the daiiiajjes, or such 
 other mode as tlie Court or .hulffc may (lirect, instead of the clause alnivi' in 
 Itrackets. The latter provisi.in is adopted hy Rnlr TlOlielow. The prai'ticc in 
 actions at law formerly was, that the plaintitf, in the case provided for hy thin 
 Jiii/i', filed and served a declaration, indorsed with a notice to plead iiicight 
 <l.iys, and then, if no plea were pleaded, signed interlocutory jiid^:iiient fur want 
 of a plea. Then daniajfcs were assessed. Under the jire.seiit A'"/', interlo- 
 cutory judjfment may be entered immediately iiihmi default of appeaiaiuMMUnl 
 the indorsement on the writ will govern the inquiry as to damages witlumtany 
 ideading. 
 
 The old learning on the subject of "conversion " neec'. not be iiii|>orti'd into 
 the system introduced by the .Tudicaturc Act, which proviiles for redress m 
 case the |ilaintiff's ginids are wrongfully detained, or in ca.sc lut is wrongfully 
 deprived of them : Slim.si>ii v. Jilwl; 11 Ont. 10,3. 
 
 Where the writ besides damages claimed an injunction, an interlocutory iiidg- 
 ment was held not jiroperly Higned under tliis Rule: McVaUina v. McValhm, 
 11 P. R. Iti. 
 
 A fonn of interlocutory judgment will be found in the Appendix Jorm 
 No. ICiCi, and of judgment in default of apiK-arancc after aHsessineiit of damage-s 
 Ko. 108. 
 
 It would Hcem that, under this Rule, wdiere the action Ih brought for the 
 sjiecific recovery of chattels, the plaintiff may, u|Kin default of a|>i«aranct', 
 have judgment for the delivery of the chattels: and may then enforce that 
 judgiiu-nt und<'r Rule 873 : /(•(-;•// v. VruiikxlHinh; W. N. 1«75, -■*!) ; ;»''' 
 •.^uain, J., at Chambers. 
 
DEFAULT OP APPEARANCK. 
 
 609 
 
 Tlio fonnor iikkIp of aMHf^NHniniit of daiiiafifeH wan pruHcrilxMl by R. H, (). 1877, Rul6« 
 c. 50, K. li'^-', which wan an follows :- 709-711. 
 
 "152. No writ of iiK|uiry Hhall iMHue to a Hli«rifF in casHx of judgment by 
 (ii'fanlt, lint, fxcicjit in caHUH whcru th(> judKnu'nt is final hh aforpi-aid, the 
 liiuniitJi'H, wiicn to iM) HHKOMNtxl l)y a jiidjfe or jury, mIuiU Ihi aNwrtaint-d at :;hc 
 siiiiK* tiiii*>. and ii> lik(< manner as if tiic partifM had ])laaded to iHfi<u>, and the 
 ciitricH HJiali 1m' miult* in the roll accordingly." 
 
 rmlmlily under R. S. (). 1HH7, o. 5,1, st'o. !(, therw may be a rcfercnoo to 
 (Hiin|mtr. The C'ourt will not, however, refer to arbitration : Jlnlr 550. 
 
 Wlicri' a Kual instead of an interlocutory judgment waH signed, and wan 
 tlicrcfdrc set aside, it was lield mider the former practice, that the plaintitf was 
 luit forthwith entitle<l to take out and tile the order, and sign an interlocutory 
 jiulgineiit. 'I'ho final judgment was held to i)e not set aside without an entry 
 (ill the roll, and the (lefeiidant without laches could not 1mi deprived of the 
 carriiigo of the oiTler : fnranaoh v, HunlinijH Miitintl, 7 P. R. 111. 
 
 An iii(|uirv was direcited before a Master on affidavit evidence in Mnctlmuihl 
 V. .{,ih'h„r, \V. N. 1HH4, 72. 
 
 70!>. Where there are several defendants, of whom one ^g^,^,°gf,\f *^ 
 or uioionppoar to the writ, and another, or others of them inaction 
 fail to appear, the plaintitf may sif^n interlocutory judg- ft^oa!*'"' 
 ment aj^ainst the defendant or defendants so failing to 
 appenr, and the value of the goods and the damages, or 
 either of them, as the case may be, may be assessed, as 
 against the defendant or defendants suffering judgment by 
 (let'aiilt, at the same time as the trial of the action or issue 
 therein against the other defendant or defendants, unless 
 the Court or a Judge shall otherwise direct. New. 
 
 T.iken from Kiig. I{. IHS;!, Kk;. 
 
 710. The Court or a Judge may order that instead of a AssesB- 
 trial or assessment the value and amount of damages, ordamagtP. 
 either of them, shall be ascertained in any way which the 
 
 Court or a Judge may direct. New. 
 
 Tak.'u from Kng. I!. 18H,S, 10(>. 
 
 711. When the writ is indorsed with a claim for deten- Damages 
 tion of goods and pecuniary damage,?, or either of them, dated''"'' 
 and is further specially indorsed for a liquidated demand '^^'°*"''- 
 under Rule 2J5 and any defendant faili' to appear to the 
 
 writ, the plaintifif may enter final judgment for the debt or 
 liquidated demand, interest and costs against the defendant 
 or defendants failing to appear, and interlocutory judgment 
 for the value of the goods and the damages, or the damages 
 only, as Ihe case may be, and proceed as mentioned in such 
 of the preceding Rules as may be applicable. New. 
 
 Taken from Kng. R. 1883, 107. 
 
 J.A. 89 
 
610 
 
 MOTIONS FOR JUDGMENT. 
 
 BnlM 
 712, 713. 
 
 rrovigions 
 of tbe Im- 
 perial Act 
 H & 9 W. 3. 
 c. 11, to re- 
 main iu 
 force. 
 
 712. Notwithstanding anything in the Rules contained 
 the provisions of the Act of the ParHament of Great JJritain 
 
 i)r agrn-emcnt in any indcnturf, dcwl "i- writiiitf, tlic i)iaintitt' iiiayiUsk'n'"' 
 ly breaches as lie thinks tit, and dania>,'es may lie assessed ii(hiii anv nf si T 
 ^lus that may l>e |)r(ivi-<l to have l)ecn liroken, and .judj,'nii'iit niitv'i 
 
 passed in the Session held in the eighth and ninth year of 
 the reign of King "William the Third, entitled An Act <o«- 
 the better preventiufi friroknis and vexations suits, as totJiP 
 assignment or suggestion of breaches, or as to judnnient 
 shall continue in force in Ontario. R. S. 0. 1877, c. 50 
 8. 151. ' 
 
 The 8th section of S & it W. 3, c. 11, jjrovid* ■" that in actions in any Cm 
 of Kecoixl on a \xn\i\ or on any penal snni for ion-|terfonnanee of niivcuv."^' 
 ant or ag'n-ement in any '"'''■•■* i....,i .... .....;.;..„ *i i..:....:^- ••n- 
 
 many " 
 breacl 
 
 entered and execution issut ,1 ; tiiat execution nuiy be staye(i \ijinii |iiiviiicm f 
 tiie amounts ; that the j\id(,'ii.ent shall stand as security to the |)liiiiititf uik' 1 
 j.-tTsonal rejn-esentatives for further lireaciies ; tliat tlie pliiintiff, uimii, ,k 
 lun)i)ening of furtlier breaches may iiave a ncin fiiciiiKim tiic judKiii'tnt ■Ma'J'i 
 the defenciant, hi.^ lieirs. executors, etc., and may summon him or tlicm t,i sli™ 
 cause why execution shotdd not be awarded on tlie judgment, u|ioii wlijc), tl,,,,.. 
 shall be tile like priK-eeding.-i as in an action of debt on tiii' boi. ', ir (ililiirHtj ' 
 for a.sse.ssing damages u|)on the trial of issues joined ti|Kin such bieaclies' aiill 
 so ti-tiin iiUiitiin. 
 
 Instead of a .sc''> /c/f /.f.« <|uery wiietlier a iietition under liu/i 7SL' would iii.t 
 now 1k' a jiroju'r nnMle of pniceeding. 
 
 This statute was iield to be confined to actions of debt, iv« in covenant .inrl 
 assumpsit there was no penalty tiiat could stand as continuing security forfutiirc 
 lireach -s : 1 Williams Saunders .")S /,, c. d- il : Lmn v. I 'a >•.•:, I IV.ur. L'LI'j A 
 Ixmd conditioned for pjiyment of a sinn certaii! is not within the stntiite: Mii'rn'iii 
 V. Loril ,Sti(i7; 2 15. & ( '. !M), nor is a liail bond : Mnixlii v. J'hia.'-iiii/, i' \\,^ |> 44,; 
 A repl'.vin Ixtnd Wiis not formerly : Jiht<-lur v. Jiiirn, IM {' . ('. (^. J{. o;,'! 
 now IS (Hide 1103<») within the statute. 
 
 nit 
 
 (ii) Dower. 
 
 Action for 7I3. In casc of non-appearance by the defendant in an 
 
 Judgment actiou for dowcr, the i)laintilT may enter judgment of seisin 
 
 Execution, forthwith, and sue out a writ of assignment of dower, but 
 
 Costs. Bbe shall not be entitled to tax or recover the costs of suit 
 
 or of entering such judgment against the deloiidrnt, unless 
 
 the Court or a Judge so ordera. \\. 8. 0. 1877, c. 55 
 
 s. 15. 
 
 On motion for judgment on the pleadings wh-re detention and (ienmrnl w^rr 
 denied, and defen(hiMts allege>l fjiat thiyalwass had lieeii and wen- riadv tn 
 assign dower, judgment of seisin was granted, b. it no damages (or ;i|,|,ar,.iitlv 
 costs) : Mithmi v. MhIdih, 17 <!nt. 101. 
 
 {a) In case the plaintiff claims arrear.s of dower or 
 damages for detention of her dower, neither the entry of a 
 judgment of seisin nor the taking of proceedings for tlie 
 assignment of her dower thereunder, .shall prevent her from 
 proceeding with the action for the recovery of such arrenvs 
 or damages. AV/r. 
 
 See notes to liiOr 2y</. 
 
RECOVERY OF LAND. 
 
 611 
 
 (iii) Recovery of Land. 
 
 Rules 
 714-716. 
 
 iyi4. In case no appearance is entered in an action for Action for 
 the recovery of land, other than an action for dower, within *" 
 the time limited for appearance, or if an ajipearance is 
 pntered but the defence is limited to part only, the plaintiff 
 shall ^^ ^^ liberty to enter a judgment that the person 
 whose title is asserted in the writ shall recover possession of 
 the land, or of the part thereof to which the defence does 
 not apply. J. A. Rule 76. 
 
 Tl,i..(.rnsiMm(ls with the Knpr. K. Wry, (). 1.% r. 7, (ISK.% K. 108), and is in 
 1 taiM-c tl"' **''""' '*** *■'"' fornK'i" imuttiiic. A fonn of jn.-ipiu'nt which may Iw 
 laptolt" iiK'ct iud\ ciVHCH will he found in the Appx. So. 1(>2. 
 This iudjfuii'Ut d(«'s not carry costs without an affidavit l)eing tiled to the 
 ,ff>ct inentioned in Iti'lf 71<>, or an order obtained un ler Rn/f 71(S. 
 
 yitl. Where the plaintiff has indorsed a claim for mesne AssesB^ 
 profits, iirrears of rent, (</) or damages for breach ofdnmageBin 
 contract, ('-) upon a writ for the recovery of land, he may fa^nd." ^°' 
 enter jtulgraent as in the l.ist preceding Rule mentioned, 
 for the land ; and may proceed as in the other preceding 
 Rules as to such other claim so indorsed. J. A. Rule 77. 
 
 This is th.' sanif as tlie Knt,'. R. 1H7r), O. 1.3, r. S ; that of l.SHS, H. 1011 has 
 ftt A'^ the wonls "doul>le vahit .'" and at ^'/^ " or wron^' or injury to the pre- 
 iiiiKi's claimed." Tlie former practice coi>tined this rigjit to tiie suit of a land- 
 lord iiKuiiist a tenant. 
 
 Tile cliiiin'< mentioned in the /iiilr are claims which without leave may he 
 ioiiuHl with .'i claim for the recovery of land : see /{iil'' 341. 
 
 A fiir'.i of J idtfMient wliich nuiv 1m' adapted to meet sudi ciiwes will Iw 
 fouml in tiie Ap Hiidix, Form No. If!.*). 
 
 716. In case no appearance is entered in an action for costs 
 recovery of land, I'othor than an action of dower,] and iuver""*'* 
 case the plaintiff tiles the writ, and an affidavit showing'" 
 that the writ has been properly served, and an affidavit that 
 the party so served was at the time of the issue of the writ 
 in actual adverse possession of the land, or instead of such 
 affidavits obtains and tiles an order of the Court or a Judge 
 allowing him to sign judgment aa well for his costs as for 
 recovery of possession of the land, the plaintiff may at once 
 sign judgment that the person whose title is asserted in the 
 writ shall recover and have possession of the land, and 
 also his costs (to be taxed in the ordinary way), and the 
 plaintiff may forthwith issue execution thereupon ; and 
 the judgment may be in the words or to the effect of Form 
 No. 102 in the Appendix, with the words following or words 
 to the same effect added tluireto, namely: *' (oid do also 
 
 se pos- 
 session 
 
6VA 
 
 MOTIONS FOU JUDGMENT. 
 
 Mi : 
 
 Rule 717. i-ei'orer ((fidinst ihe anid (\ D (the defendant) $ for hix 
 
 rost of snUr li. S. 0. 1877, c. 51, s. 20 (2). 
 
 'I'lif express exceptiitn of actions for ihtwer wiis not contained in the section 
 referred to, hilt was cuntiiined in efFect in H.S. (). 1S77, cf^.s. 15, (now/fW, 713), 
 
 .IiidKiiU'iit 
 for i'ore- 
 elos'.ii'e, uy 
 silk, when 
 inl-uitsare 
 <1« I'lulaiils 
 iiiiiy l>u 
 ni:ule ill 
 elm! libers 
 
 Day to 
 
 show cause, 
 when to Ik 
 ruburvetl. 
 
 When un- 
 necessary. 
 
 (iv) Mortfifif/e Actions. 
 
 yiy. In an ordinary action for redemption, foreclosure 
 or salo where the defendants, or some of the d^-feiidaiits are 
 infants and no dt.l'ence is set up the action is not to besel 
 down to be heard in Court by way of motion for judi^'ineut; 
 but after the statements of defence are tiled, or after the 
 time for lilinj,' tlie same has exi)ired, the plaintiff is to file 
 adidavits of the due execution of the inortj^age, and of sutli 
 other facts and circumstances as entitle him to a judgmeui 
 aiid is to ai)ply for the judgment in Chambers, upon notice 
 to the ^Miardiaii (nl litem of the infants and the other defen- 
 dants' !4i()licitor, if any. Chy. 0. -ilM, (515, 640. 
 
 This Jlii/f eii;ililes jii(lj.'iiient to he pronounced in Cliamlieis, as jigaiiwt 
 iii.'^ants and adult ilefeiidants wiio are ■•■/'/ Juris, hut wliere any "f the aduh 
 del 'iid.ints is a hinatie or jiersoii of unsound mind not so found, it i.s iiecrwiin 
 that the motion for judgment siiouM he made in Court: Waniml; \. I'ritui. 
 
 W'iien ..'".'t!:;;!,!/ heyond tiie ordinary relief is rcciiiired, as for e.\aiii|ilt' an 
 iiijuiietion, it would seem tiie motion for judgment should lie miide iiiCciurt: 
 see h'i 1/ V. Firm in, 1 Chy. Cli. ICiO ; luikiiiilrirk' \, //"(rr//, 2- ( ii. lit. Ji'iili- 
 lUS-.'iO, under which defendants in an aution for foreelosiire may ohtaiii i; salr 
 will not, even where infants are concerned, Ik- extended to an action hy ,i 
 mortgagee for possession merely : \\\v/cni Canudd L. <e N. S. v. Ilunn, 111 
 C. L. .1. 211. 
 
 In judgments for foreohmure against infants, a day to sliow cause mii.>»t still 
 lie inserted : Mrllor v. /'../•/»',•, 2.') Cti. D. loH : '.'/•'/// v. /.'.//. 4(1 L. '1'. N. S. Tiil ; 
 /,..„,/../( .1' ('. /.. .e .4. rt). V. Kri'iilt, S 1'. K. 4.S'.t ; Shiir v. Kni; 2 (Jr. 223; and 
 the final order must also reserve a day to show cau.se. The foniiiil words 
 usually inserted in Ontario are "and this judgment |"/' order) is to lie hinduv 
 upon \ii(iiiii' 'it' iii/'iiiits\ unless lieiiig serveil with a copy thereof on olitaiiiin,- 
 the age of twenty -one years, they do, within six months after such servict. 
 shew unto this Court good cause to the contrary": see Seton 711. '*>!"" 
 Tlir /li'm/nlioii of Ks/n/r.i' .!(•/, (H. S. (). c. lOS), the estate of a mortgager 
 descends to his personal repr;'sentativ(', and his infant next of kin are mil 
 iieiM'ssary parties : see Mdloih- \\ Mitldin; 17 Out. 101. 
 
 No (lav to shew cause is resi-rved in judgments for sale ; nor in jiulgmi'nts 
 !i«-ainst infant trustees of real estate: /Vs/,,' v. /'"/-/r;-, S Ch. I >. 22:!, and si" 
 \ynlnr/iinii/it"ii v. <niiif/,-, -24 CU. I). 7<l7. Thus, in a redemption suit against 
 an infant for redemption of land conveyed to the infant's auiestur hy deed 
 alisolute ill form, it was held that no day to siiew cause should lie reserved in 
 the decree directing' a re-convt'yance ; l.tt/,i' v. Mi- luti-sh, ' (Jr. ;i;f2.^ As t'l 
 ilefeuees open to au iufjiut shewing cause : see Seton 712, 1114, and llhi. 
 
 Where a decree for foreclosure was made against the ani^estor, who difd 
 liefore a final order was olitaiiied, it was unnecessary to reserve a day to >li('«' 
 cause in favour of infant heirs of the mortgagor, as to whom the proceediiij,"; 
 were revived; Siit/ir,liiiii/ v. birksuii, 2 Chy. Ch. 2."); )'ii!iii:f v. i'"i>'''i\ >'■ 
 L. T. .lour. 247 ; and infant parties under such circumstances c;ould not set uii 
 a defence which their ancestor had not .set up, unless he liad heen prevented, 
 hy fraud, or mistake, from ideaihug it: />'((/■/'■ v. /•//"'■, '2 Cli.v. Ch. l!i:i ; but 
 
Rule 718. 
 
 Iu<iuiry 
 wliether 
 sale or fore- 
 (•losuru 
 more boiie- 
 lic'iiil for 
 infant, 
 directed aH 
 of course. 
 
 
 it< 
 
 MOUTGAGE ACTIONS. 618 
 
 now under sucli circutnstancea the estate of the mortgagor descends to his 
 iKjrHonal repre.scntative ; R. S. O. c. 108, s. 4. 
 
 Foriiifrly wliere infants wt re defendants in an action for foreclosure before 
 iiidt(nii'iit, the Court would ( irect a reference to the Master, as of course, to 
 
 iiiuiie whether a sale, or foreclosure, would lie the nior • beneficial for the 
 infants, and direcft a sale, or foreclosure, accordingly, or it would determine 
 the question, on the motion for judgment, if attidavits were jinKliiced or the 
 Orticial (iiianlian consi'iited to disin^nse witli tile reference on that point: 
 />«(//'•// \. /)«'/•<•.'/, I'i *'i"- HI ; but s('e Oriiiiiim v. Ihtris, 2 Ohy. (^ii. 24 ; and if 
 a sale was dincted on tile application of infant defendants, no deposit was 
 rwnii'i'l from tlie infants: lUmk nf Um>i'r ('(iiiixhi v. Smtt, (J(!r. 451 ; Linr- 
 riwiit \. I '■.i/fndi/, !1 (Ir. 371 ; l>ut see IIV.sVc/'// Hitiuiihi hum <'i>., v. IhuDic, 
 !t P. i;. TiHT. Whether a personal representative of a deceased mortgagor 
 would Ih> entit ed to this relief, where infants are beneticially interested in the 
 wjiiitv of redemption, has not liecii tlnis far determined. 
 
 Where the judgment directs an iiii| dry whether a sale, or foreclosure, would 
 I'^morH beiieiicial for infant (htfendants, if the Master omits to report on that 
 IKtiut -I I final order can bo granted : Edwun/^: v. lini'liiuj, 2 Chy. Ch. 48. 
 
 'S'i.H, Where i\\v. tUfondant does not appear, or by his •i»dB"ient, 
 statement of defence admits the execution of the inortviaf^e granted on 
 and otlier facts, if any, entitUnp; the phiintilf to a judgment,'""''"'"'' 
 or where the defeiuhint disclaims any interest in the mort- 
 gaged premises, or where no statement of, defence -.ei? 
 <k?marrer is ('leUvereo, the plaintiflf is, on prcccipe to th.e 
 Registrar, or Deputy or Jjocal Registrar, or Deputy Ch:'rk 
 of the Crown in whose ofliice tlie appearance of the defen- 
 dant was required to bo entered, to he entitled to judgment 
 including, where prayed for, the relief for wl ich a claim 
 may be indorsed upon the writ under Hule 248. 
 
 ((() 'Die reference in such cases, when required by the 
 practice, shall be to the Master in Ordinary or a Local 
 
 Master. 
 
 (/') Such a judgment may be granted, notwithstanding 
 that the defendant has been served by publication, or other- 
 wise, or is a corporation : provided always that where the 
 writ has not been personally served, the claim of the plain- 
 tifif shall be duly verified hy'afHdavit. 
 
 (c) This Rule shall apply to actions for redemption as 
 well as to actions for foreclosure or sale Ch}. 0. 435, 
 fiid, UH. J. A. Rules 78, 7S>, 502, 520. /i.<^o i<.^ . .. ,r^^^^^^ u<se^^^ 
 
 A luiition for judgnii nt was hel<l to be neces.sary, where costs of proceeding «^/ f<.<fe /J // <7 
 imdiT )■ lurr of sale and moneys e.\|ieiided for repairs were claimed ; Haiiniifon/ 
 V. Xk'iii. !»('. L. 'P. 4H ; or immediate foreclosure : (iilmoii v. McCrimmov, !( 
 ('. L. T. 4(1. 
 
 It will Ik' seen that this Rith' covers four classes of cases. 
 
 (") WJKie defendant does not ap[)ear : • 
 
 ('/) WluTi- tile defendant by liis ds'ence admits the mortgage and other facts 
 fnlitlnig the plaiiititf to judgment : 
 (i) \V lipic tlie defendant disclaims any interest in the mortgaged preini>es : 
 
 - / 
 
614 
 
 JUDGMENT. 
 
 Rule 718. (f/) Where no defence is filed. 
 
 It ix not necfsHary that all the (Iffendants should !)•> in the sanm ixisitiDii, in 
 o.^der to entitlf the plaintiff to judgn.'Mit undiT this Riil<', it is sutticiciit if they 
 all conic within one or otiier of the four classes of cases aliove mentioiiud. 
 
 In theOhancei-y Division in Toronto, amHraranccs are reimired to 1m- i-ntered 
 with the Clerk of Records and Writs ; jtulgmants inidcr that Itiilf are, however, 
 entere<l by the Ke>,'istrar. 
 
 Wlicre tile writ is issued from a local office tiic judg'nicnt sliould l»c entered in 
 that local office : i'hdiaherluin v. A niiMronii, !• P. H. 212. 
 
 Wliere any of the defendants are infants, or liniatics, or [M-rsons f)f iiiimmmi 
 mind not so found, judgment cannot l)e obtained under tliis I{hI<-, Init in the 
 case of infants it may l)e obtained on motion in ("l'«mlM'rs : see llnlf 717, and 
 in the case of lunatics, etc., a motion in Court is necessary : Wnninck v. I'rkvr, 
 12 I'. H. 2(H. 
 
 Wiiere a dispute nottt is filed, judgment nuist Ije obtain<Hl on nioticin : se 
 Rul( 2tt!t ; the provisions of tlu^ former Rule 7S under whicii the jndtfment 
 might, in sucii ciuses, l)e obtained on iiriirijtr : Trunt A- Limn Co. v. McCarthii, 
 lil C. L. J. ISS ; 3 ('. L. T. 2(;(; ; IWI V. W/iih, 11 P. H. 177 ; liav.. not been 
 emlsKlied in the Consolidated Rit/is. 
 
 For forms of judgment, see Ap])endix Fj)rms Nos. 1S2, 1K;i, 1X4, These 
 forms retjuire nxHlificatiun according to the natuit^ of relief claimed in tiic writ 
 
 Where the writ has not Iwen sufficiently indoi-sed with a statement of the 
 relief claimed, iiccording to the form prescrilH!<l by /!ii/< 24K, it wonhl secin that 
 the officer may proiH-rly refuse to enter judgment on /iraci/ir: I'lurif'l y. tnrlitt. 
 8 P. H. 4(»«. 
 
 Where a |ihvintifT claims a jiersoniil order for |>aynient against the (lefendaiit 
 tnider a covenant, and a reference as to incumlirancers is necessary, tlieiitamnt 
 of the amount payable by tlie defendant under the ctivi-naiit should not I* 
 taken l)y tlio officer entering the ju<lgmeiit, but shouM be le't to Iw iisccrtiiiiiwt 
 l>y the blaster to whom the reference is dirtK;te(l, and tiie defendant lie ordered 
 to pay the amount so foinid <lue, forthwitli after tlie nialviuK of tin* Master's 
 re|M!rt: North of SroHnntl v. Jitiint,'.^ P. P. 'Ait; see Ai)p. Form No. \X2: the 
 practice in Fiiiglaud is to direct pjivnieiit one month after tlie date of the Chief 
 (Klerk's certificate : Lfix v. Fi.sh(i;'\V. X. 1,S8(», 12 ; Farnr v. Lio >i, ;)2 W. H. 
 384; 2.5 Ch. I). (k{(1. 
 
 I'nder C;hy. Ord. 4.'V), on which this Riilf is mainly founded, it w.is held thai 
 the I{egistrar was l«mnd to issue on /irnriin the decree which the Court would 
 itself unike upon a hearing of the cause /iro roiif) kxo : Kirk/ml rir/: v. Ilnirill, 21' 
 ( !r. 114 ; llioll v, 'ronna, Ih., it.*) ; but extraordinary relief cannot lie ^jnuited liy 
 f judgment on /inrfi/ic. i.ii., an immeiliate sale, or forecl<c<ui-c. without :i|iiKiint- 
 iiig a day foi' redemption, cainiot Im; granted, even though the reliif lucliiiiind 
 bv the writ or statement of claim : I'oli n v. Fli,\l, 4.S L. .1. Cl.y. (i'.MI. T" 
 obtain such relief, a motion for judgment in Court under /'"/*■ 74.S is nireswiry. 
 On such a motion, however, s|«'cial grounds for immediate foreclosure or other 
 special ndief must be shewn tliougli the defendant has not apis'ared. otiierwise 
 onlv the usual juilgment will be given : Mirnlith v. Mcl'ulii; I'.ltli .ianuary, 
 IHHl, Poyd, C. ; sva ahu North of Siotlidul, itc, v. /Imnl, '.» P. P. .VtC. 
 
 Put wliere no aiijtearaiice has been entered the plaintiff cannot, unless he 
 serves the statement of claim on the 'lefendaiit, enhii'ge by it the scoi»' of the 
 claim. On motion for judgment .lecording to the terms of relief claimed in 
 the statement of claim, in default of ap|M'arance, the usual foreclosure judgment 
 only was given when that was the only ndief claimed by the writ, notwith- 
 standing tiiat by the statement of claim additional relief was obtained. Lmr 
 V. J'hilhii, ■»(! L.'T. N. S. 522; JJo W. i{. 4:i<). .S«-e also >•■•< v. /<'«//, It.". Cli. D. 
 lOO. 
 Tntorlocu- Win re the plaintiff had obtaim-d an int,adocutory iiijunetioii, it was held 
 tory ill- that the Registrar could not issue on /iravi/ic a decree euiilinuing it : Amj/ v. 
 junction /•'rtmioii, 1 Cliy. Cli. :i")i», the Registrars power t( issue (lecre(-s being contiiitHi 
 cannot ho ^,, simple <,-ases. where the ordiii.'.rv decrees fur foreclosure, or sale, with onler 
 contuiuea ^^^^ payment and deliverv of iHiss-ssion, wjis all that was rtHpiired. Tliun, where 
 
 Prcvciiic 
 judgment, 
 form of. 
 
 Kxtraonli- 
 nary relie 
 not grant- 
 ed. 
 
DEFAULT OF PLEADING. 
 
 615 
 
 tliH rtMfciiflftnt answered iifhnitting the inortffaijre, but denying -vn alleffcd agree- Rale 7X9. 
 
 mciit ti) iiii>' an increased rate of intrnsst, and setting up a tender, and claiming 
 
 (• nts, it was held a decree could not l)e granted on jinvci/M: Is'or could a decree 
 
 ii<m'il<iii /inirii)!' in such a case Ih' auu-ndcd in Chambers, by inserting a diree- 
 
 timi to tlie .Master to iu(|uire as to tiie allegt^d ti nder : /{out. v. V iil(i; 3 Chy, Ch. 
 
 •ZV>. 
 
 Tiu'i>luintiff nuist determine for himself whether he takes a judgment with a 
 ri'fia'i'iK"!' til the .^[aster as to incunil>rancers. If \w talces a reference, unneces- 
 siriiy 111' "ill not Ih- entitled to tiie ('osts of it : Iliiiailtoii v. Ilini'iirtl, 4 (jr. 
 ■)S1 ■, I'unhi V. /'"/■/■.<, !t I'. K. 424. 
 
 Hut where a plaintiff had taken judgnu'iit witiiout a reference, and after 
 till' mortgagor was forecK)se(l, li.sfovered there was an incumbrancer, on an 
 interlocutory anplication the judgmrnt was amended l)y directing the usual 
 ivft'ivnce as to nicumlirancers : Wilhjcf.fs v. ('rmrfdnl, 12 I*. K. (mS. 
 
 Adt'crw jiroiioMiiced /inirniifr. iso, or on /yirrini, might 1m) varied, or set aside, 
 
 rriiii, mi 
 (111 motion in ('liaml)ers, without rehearing the (lause : see Kline v. Kline, 3 
 ciiy. f 11. "'••; Xelh's V. Viiaihike, 17 (Jr. 14 ; and tlie same rule applies to judg- 
 iiuMits on /'riiviiir under this A'"/' : Trust .(• Luni Co. v. Mrr,nthii, 11) C'. L. J. 
 ISS; ;U". L. T. L'lKJ. 
 
 2. Default of Pleading. 
 
 7I!K If the plaintiff's claim bo only for a debt or liqui- '"'iRine" » 
 <l<ited demand, and the defendant does not, within the time IiRuts 
 allowed for that purpose, deliver a defence or demiuu'er, ;li'iiJ^,l'/(,,'" 
 the plainti}}' may, at the e.xpiration of such time, enter final ''"'''• 
 iad<];ment for the amount claimed, with costs. J. A. Kule 
 201. 
 
 Idi'iitJL.il with the Kng. I{. 1S7."i < ». L".l. r. 2 (1SH3 H. 2't.")), and in aecovchmee 
 HJtlitli.' (\ L. I'. .\ct. n. S. (). 1.S77, c. .■><», s. l.")<». 
 
 \ (Icfiiidant must " deliver iiis defence, counter-elaiin or demurrer within 
 ' ii;lit days from the delivery of tht- statement of claim, or from tii" time limited 
 fir a|i|)i:inuui', whicliovcr shall be last, unless such tiuH- is e.\ttii(ied by the 
 
 ''iiiirt or a 
 
 •ludge 
 
 /till, ;{71. 
 
 .Vs to the effect of delivering a defeliee after the time for doing SI 1 has elapsed 
 
 (■!■ iiiites to Jinli 'A7\. 
 
 It IS 
 
 England that if in an aetion on 
 
 iii-ti:iil of claiiniiig dania'j 
 
 )le\ili bond, the plaintitf. 
 
 l.( 
 
 iiuis the aiiioi 
 
 lilt for wliieli the lionil 
 
 conies elitltleil ti i jlldgllieiit by i| 
 
 It. I 
 
 v.as gneii. 
 
 US proper (Miurse is to enter final 
 
 .iiiilj,'iiieiit under this /{iilr, and not iiiterloeiitory jiidguieiit iiinler /,'ii/i 7-'l 
 
 l)if V. '.• 
 
 .'iKn. 1). '.M. r>iit this will probalilv not I 
 
 this I'ldvince. 
 
 as lie IS not entitled in such ( 
 
 ' toelaiui the wholi' amount of the bond, it lieiug 
 |iniviile(l liy Hull 1111 that " in case the plaintitf becomes entitled to sij,'!! judg 
 nit'iit liy default, he shall lie at liberty to sign final indgmenf for the sun: of Hvt 
 
 «\U 
 
 ind (lists aeeoriling to tl 
 
 prii|ier s( 
 
 ale, lint shall not Ih' entitled t( 
 
 iiTovcr 11 larger Slim, except u|Kin an .i^sessnient 
 
 iijiiin tiliii!.' the writt 
 
 eu conseii 
 
 t of tl 
 
 ■fellihi 
 
 efort 
 I 
 
 Judge 
 
 int or Ills Holnutor, 
 
 or .jury, or 
 I an atti- 
 
 aiK 
 
 lavit Verifying the signature to such con.sent. 
 
 Slimtly at'tir the .liid. ,\et IX.'S) came into furee. it was laid il.'.vn by tl 
 •Indies (if tile (' 
 tlicic is also a cl; 
 
 ie(>ry Division that where a writ is specj.illy imloised mikI 
 III for an e(piitalile deii 
 
 auil, or a demand ill respect of wliiidi 
 I liiiition fur jiirl^fnieut is necessary, the plaintiff cannot obtain jiidgiiient by 
 
 cfiUllt 
 
 ir ji, 
 
 olltl 
 
 jiiieiit as to 
 prai'tice ill :ill cases ; 
 
 le claim speciall>' indorsed, lint liius 
 
 t set till 
 
 le case down on motion 
 
 dl till 
 
 H. .V.Ml 
 
 n 
 
 ■hi 
 i.i.if tt \ . 
 
 Th 
 
 us wmild 111 I now appear to 
 
 b.' tl 
 
 le 
 
 lint .see 
 
 Sill II 
 
 <iiirii iiini/, v. ir///.-, 1(1 r. 1{. l.V,l, 
 
 .•{2('li. I). <J3r. ; l/iin v. JviniMim, 12 
 
016 JUDOMIiNT. 
 
 Rul6 720. Where adeinurrer to .1 claim isiivcrriili-il, mid no Icavn to plead is j,'ivcii, final 
 jiid^ineiit may bo signed under this Itnlc if the time for delivery of (iefeiice luv> 
 <'Xi)ired. 
 
 The Hauie cour«e will b«* purttued where a demurrer to a (h'ffiiCM is iillowcf], uikI 
 leave to anitsnd refuKed. 
 
 Where a defence him Ix'en .struck out, for instance for disolicdicnci. to an 
 order for discoverv, jud;<ui'!nt uuvy lie ni^'ued under tliese /{I'lf.s ; sue ^'Va/a/- v 
 llu<jli,'s, 25 W. It." 528. 
 
 If the defendant diH-s not appear tiie plaintiff cannot c^tdar^e in tlicstntenicnt 
 nf claim liin claim indorsed on the writ : Luiry. J'lii/I>i/, 'A')\\'. H. t.")*!; ."pi; 
 li. T. N. S. 0-22 ; '.'-■.• v. Jli/I, :i.j (!h. I). Kid; see Stonr v. South, X> Cli. I). W, 
 
 Where the plaintiff claimed interest at seven per cent., siiowinj,' im j/miniil 
 lor more tlian six, it wus held thi' duty of the officer sitfiiiiif,' judt,'nieiit toallnw 
 only SIX percent: Hunk nf Humiltnu \. Hum 11, 11 J'. H. \AU. 
 
 In /luii/iiT v. (iilrx, W. \. 187(J, 10, liindley, ,]., in Chandlers, held that a 
 ih'fenilant is not l)i)und to deliver any defence where he has j,'-iven iiiitice tliat 
 111' docs not I'eipiire a statement of claim, and no statement of claim litis Ix-cn 
 delivered : see Wilson's .hid. .\et, L'lid eel., p. L'dS ; Maxter's .lud. Act, 4tli dl., 
 p. 227. Some siip|«>rt to tliis view is ^dvcn hy W'ilhnntl v. Yiniiiii. 44 
 li. T. N. S. .'{.'il, a foreclosure action, in which the defendant had :i|ip<aiHl 
 and dispensed with a stalemcnt of eliiim, iin<l on motion for ju(l|,'iiifiit tlic 
 defendant objected that the case should \ni to trial as there had Ucn 
 no default in delivery of defence or demurrer. .lessel, .M.it., in plaeinj,' 
 the ca.se in the witness list said " I sec no Itiili appliealile to the <;i-e us it 
 
 stands. If I could make the defendant pay th< sts of the day I slmnlil iln 
 
 so." Attention does not seem to have Ucn called in that case to //■'/■/•('.s"« V, 
 Siirri'ii Miisdiiic Hull < '"iiiiiiiiiii.v\tvi\ in t'hitty's Forms 1 KJ, and (irinixliiui\iti:, 
 V. Ml Itiiinll, fit; L. 'I', .lour. 277, which overruled /Inu/u ,■ v. (•'ilr.i, xiijini. ami 
 decided that iudtjmcnt may he sifjned within H d. ys from the time of ii|iiifar- 
 alice. Si'e note to K>'lv 'ATI. 
 
 \i*'-' 
 
 'k 
 
 
 i 
 
 \t 
 
 : 
 
 Where se\ 
 eral defeii- 
 dantH. 
 
 730. Where in an3' such action as in the last prcccdiiij; 
 Rule mentioned there are severa' defendants, if one of them 
 makes -default as mentioned in the last i)recedinp; Rule, the 
 plaintiff may enter final judgment aj.;ain8t the (""ef ndant so 
 makinp; default and issue execution upon suoli jud{,niient 
 without prejudice to his right to proceed with his action 
 against the other defendants. J. A. Rule 205. 
 
 This Rule is the same 
 
 See Jriifciii.t v. ihtr.-i'x 
 
 ;s the En-,'. H. ]H7ri, (). 2!t, 
 1 Ch. D. C.!!,-). 
 
 :?. m,hh;v h. 2iwi) 
 
 In liih'i v. LIriiii/Si'iitii'. 4 C. L. T. 1H.">, an action on a proinissoiy iiuteairiiinst 
 K. iV li., two joint makers, final jiidKUient was sif,'iied undei' this A'/'A ajraiint 
 L., and costs of the action up to judKuieiit, taxed. The plaintilf afterwanis 
 at the trial recovei-ed iudffment a^'ainst K., and in taxitij,' (rosts atfainst K. tlif 
 Taxing Officer hehl that by taxing; the jjcneral cost-; against L., the (plaintitf 
 had waiveil the right to rec<iver tlios4' costs from K. To remedy this an enler 
 was made in ChamlH'rs rj- puiif setting aside the judgment as to costs ivK»iM»t 
 L., upon shewing that lie was worthless anil no steps had Ih'cii taken tiieiil'>*>' 
 ihe judgment against him. 
 
 In M'iU-iii'<i>n V. Garrett, 7 C. L. T. 22, judgment was ootained against defen 
 
 dftuts at different stages ; ag.ninst defendant H. hy default of ap|M-ar; "'" 
 
 afterwards against <■ who had defended. The whole costs were ordi 
 taxed again.st (f. including the ('lists 
 
 inice, ami 
 
 red t(i lie 
 
 costs up til ami 
 
 iif jiidgnieiit against H. , , 
 
 including judgjiient against H. to lie also taxed against him. and if reccivcrfil 
 from citht V, to Ik- credited on the judgment against Imtli 
 
 *1. 
 
DEFAULT OF PLEADING. 
 
 617 
 
 Rules 
 721-723. 
 
 Interlocu- 
 tory jlKig- 
 IIUMit (lU 
 
 lU't'ault ill 
 rlaim for 
 (liiinagus. 
 
 721. If the plaintiff's claim be for detention of goods 
 and pecuniary damages, or either of them, and the defend- 
 ant makes default as mentioned in Rule 710, the phiintifif 
 may enter an interlocutory judgment against the defendant, 
 aiui the value of the goods, and the damages, or the 
 (laniiigeH only, as the case may be, shall be assessed as 
 hitlun-to. J3ut tlie Court or a Judge may order that the 
 valiK! and amount of damages, or either of them, shall be 
 ascertained in any other way in which any question arising 
 in an action may be tried. J. A. Uule 20(). 
 
 This /'"/'■ is wiilHtJititiiilly tin- saiiic as tin- Kii;.'. H. IK?*), (). i.'l>, r. 4. (1SS3, 
 K. '.".'7', i'xct'|it tli;it tiic liittfT pnividt's in tlic first part <if the Huh' for :i writ 
 (if ill [iiirv issuiiijf to assess llic value of tlic floods, instcail of providiny^ " ; liat 
 tilt' same y\\:v\\ l>t' assessed as liitllKrto. "' 
 
 As to tile iiiodf of asscssiii;; daiiiaffes, see Riilf 70S, 
 
 III I ft I V. ('i-iii/,-i/.ind\ W. \. 1S7-">, 'JUt, till' action wa^ for rent, ami for tlic 
 rt'timi of ci'rtain oliattcls ; tlx^ defendant had failed to appear; it was held 
 that tin- pliintitf was entitle:!, under this /ln/r, to liavi- judjfnient for the rent, 
 iiii'l for the return of tln' ^oods. 
 
 See hi.i- V. (iriiimi, in note to /{('/'■ 71!l. 
 
 732. Whjrein any sueli action as in Rule 721 men- where «*>%•- 
 tioned there are several defendants, if one of them makes IiiiPt's. 
 default as mentioned in Rule 71S>, the plaintitf may enter 
 an interlocutory judgment against the defendant so making 
 (i<jfanlt, and proceed with liis action against the others. 
 And in such case, damages against the defendant making 
 default shall be assessed at tho same time with the trial of 
 the action or issues thnrein against the other defendants, 
 unless the Court or a Judge otherwise directs. J. A. Rule 
 •207. 
 
 This 7? »^ is the saui.- as the Knjr. K. 187."), O. Lti, r. .">. Iiss;?, }{. 'J<is), 
 and is in aecordauce with tlii' fonner practiee in the Conunon Law Courts. 
 See notes to Rule 71!». 
 
 «| 
 
 7251. If the plaintiff's claim be for a debt or liquidated 
 demand, and also for detention of goods and pecuniary 
 damages, or pecuniary damages only, and the defendant 
 makes default as mentioned in Rule 719, the plaintiff may 
 enter final judgment for the debt or liquidated demand, and 
 also enter interlocutory judgment for the valne of the goods 
 and the damages, or the damages only, as the case may be, 
 and proceed as mentioned in Rule 217. J. A. Rule 208. 
 
 Same as the Enp. H. 1875, (). 2;>, r. '!, (1H8.3, H, 2!t!l)- 
 Seeii ite-i to Hull- 71!». 
 
 Ii tliiTi' aro several defendants, and .some only make di fault, the jilaiiititf 
 should procoed ajjainst thei^i under /{ulf 72S. 
 
 Whore debt 
 iin<l 
 
 chiinnfies 
 claimed. 
 
51 ^B » 
 
 (518 
 
 RttleB 
 724-737. 
 
 Default by 
 defendant 
 in action 
 for land. 
 
 Where 
 claim for 
 land and 
 <lanifi;4eH. 
 
 -.ludgnieut 
 In nmit- 
 miKe 
 actions. 
 
 Other 
 actions. 
 
 JUDGMENT. 
 
 T24. In an action for the recovery of land, if the defend- 
 ant makes default as mentioned in Rule 719, the plaintiff 
 may enter a judgment that the person whose title is 
 asserted in the writ of summons shall recover possession of 
 the land, with his costs. J. A. Rule 209. 
 
 Identical with the Enj?. K. IHT.'i, O. 2i), r. 7 (1883, R. 30()). 
 
 7*2H. Where the plaintiff has indorsed a claim for mesne 
 profits, arrears of rent, or douhle value in respect of the 
 .premises claimed, or any part of them, or damages for 
 breach of contract, or wrong or injury to the premises 
 claimed, upon a writ for the recovery of land, if the defend- 
 ant makes default as mentioned in Rule 719, or if there be 
 more than one defendant, and some or one of the defend- 
 ants make such default, the plaintiff may enter judgment 
 against the defaulting defendant or defendants, and pro- 
 ceed as mentioned in Rules 721 and 722. J. A. Rule 210. 
 
 Same as Enj,'. R. 1875, (). 2(), r. 8(1883, R. 301). 
 
 The jii(l}{int'nt where it is for a li<|nidate(1 sum for arrears of rent, may, it 
 would seem, l>e final in tlie first instance and not interlocutory as uiuler A'k/m 
 721, a)id 722. 
 
 Where .some only of the defendants make defaidt, it is not <|uitecleiM- wlu'tiier 
 th(^ jilaintiff can enter judtrment against them for recovery of the liuui, Init it 
 would seem tiiat at anj' rate he mav procet'd as to that ))art of tiie claim imder 
 /.'/'/' 728 : see <,'oMit v. Ctimjihill, W. N. 1877, 13-J. 
 
 TtifJ. Where the action is in respect of a mortgage, and 
 the plaintiff claims foreclosure, or sale, or redemption, and 
 an appearance has been entered, but default has been made 
 in delivering a defence or demurrer, the plaintiff sliiill be 
 entitled to a judgment or order on pr<ecipe, as provided in 
 Rule 718. J. A. Rule 520. 
 
 In a toreclo^'ure action, where the mort{,Mj,'ee applies for judtrnieiit in defiuilt 
 of apiK'iirance, not only for foreelosim', i)ut also for a personal onlerfnv |iiiyiMfiit. 
 tile statement of claim o\i!,'ht, how ever sliortly, to contain an (■xpress >tati'iiu'ii_t 
 of tlie covenant upon which the order is claimed: Ltiir v. I'hilhii, ."iiili. 'I. 
 N. S. 230 ; 3.') W. \i. 401. 
 
 (Ur/J ,. 
 
 TliiT. In all other actions than those in the««tpvrceamg 
 Rules mentioned, if the defendant makes default in deliver- 
 ing a defence oi' demurrer, the plaintiff" may set down the 
 action on motion for judgment, and such judgment shall be 
 given as upon the statement of claim the Court sliall con- 
 sider the plaintiff" to be entitled to. J. A. Rule 211. 
 
 Identical with Kng. K. l.-<7r), K. 10(188.3, R. 304). The motion for judgment 
 is provided for liy Itiih' 74S. 
 
 .\s to wlicre a defence is put in after tlie time allowed, see notes to 7,'i'/( .Sil. 
 
DEFAULT OF PLEADING. 
 
 619 
 
 e defend- 
 
 plaintitf 
 
 title is 
 
 lession of 
 
 or mesne 
 ct of tile 
 nages for 
 premises 
 le defend- 
 
 til ere be 
 16 defend- 
 judp;ment 
 
 ftiid pro- 
 Rule 210. 
 
 rent, iiiny, it 
 t under Jhik-^ 
 
 clear wlu'tlier 
 (■ limd, Imt it 
 e cliiini iincUr 
 
 tgagc, and 
 iption, and 
 been made 
 iff sliiill be 
 irovided in 
 
 lent in <lcf:uilt 
 ■rfiiv iiiiynit'iit. 
 prc>^s ^tiiti'iiuMit 
 /, /■//,)/, ."iCtL. T. 
 
 g- preceding 
 in deliver- 
 
 ;t down the 
 mt shall be 
 ; shall con- 
 211. 
 
 Ill fiii'ju<l>riiit'iit 
 
 liv liii* Ntatciiicnt of diiiin tin' plaintiff oHked for MjH'oitic perfornianut' and Rule 728. 
 iiiieilliiry relief, but not for iiny d* '.■Itiration of lien. I'lMin motion for judjf- 
 nii'iit as ill defiiiilt of a|i|H'iirunee, is was held that the plaintiff could not have 
 a declaration of lien : Tiiron v. A'litiohiil Stiimldnl Lund ( 'it., ')(> L, T. N. S. KIT). 
 
 W'iiere plaintiff's claim was dismissed liy interl(KMitory order, defendant was 
 lii'lil to ix' entitled to pro|M'rly |)roceed under thi.s Rulr for jud^'nient on his 
 iiiunter-claiin: Hiii;iiiiK v. Smif, 21 l^. IJ. I). 1(». 
 
 In an action for specntie |>erformance if the defendant does not apiH'ar, the 
 pliviiititf is only entitled to judKnient as prayed for, not for rescission ; StniDV, 
 Smith M h. .1. Chy. K"l ; IVi t'h. 1). l.SH ; see also 'riicnii v. Miitioiiti/ l^tiinilurd 
 bind Co., M L. T'. N. S. Kio ; M h. .1. Chy. all*. 
 
 Wliere, liy the statement of claim, in an action for soecific iH-rfonnance, the 
 plaintiff craved leave to refer to the ajfreenient, and the jiroperty did not 
 apiH'ar except l>y reference to the agreement, it was held that tlie alleviations' 
 were insufficient, as nothing Itevond the statement of claim could l)e listked at : 
 Hwitli V. BiH-hai), 3t; W. H. fWl'; ."iH L. T. X. S. 71<». 
 
 If a st.ateiiient of claim against a married woman on a c(<ntract does not 
 alle^fe the possession of separate estate, no judgment can be given : Tctley v. 
 <,V/(*7A, ;«i W. K. !Mi ; 57 L. T. N. S. (i73 ; see notes to Rnl, 314. 
 
 N'i)ti(^e of motion was held by the ^Taster of Rolls not to Ix? lu-ceHsary in 
 <lill(ilt\. AVr, cited , (iCli. J). (IKi"), and by V.-C Malinsin ^\'il/iitiii.H\-. Curdini/, 
 W. N. 1H77, 140. The oontrarv was afterwards held liy Hall, V.-C, in I'lirxonn 
 y.Hiirrin, (! t'h. 1). ('»!t4, which has been followed in this Province in Jltirritt v. 
 iliinli'ck; !l 1'. K. litl. Si;- note to /.'/'/'■ 74«. 
 
 Two clear days' notice seems all that is necessary : see ]'iir:<iiiin v. Hun in, <! 
 Ch. I). t)!l4 ; hi'niliiK u v. Slntttli north, 1 V.\. I). '>:i, an<l note to /^//'■.s■ 74S and 
 47!l. 
 
 Where a ilefence is htruck out for non-compliance with Itiilix as to examin- 
 atiiJii. or with an order to produce under Unh.t l!l!(, ;V_'0, the defendant is in 
 (U'faiilt under tins Riili : Fixln r v. Hiiiihi.i. -J.'i W. It. TiL'S. 
 
 Proof by affidavit of the alleviations contained in the statement of claim is 
 imiieuessarv : U'i/linin.f v. lirixci, L".! W'. \{, 713; 17 <". L. •'• 47H ; lli/i/iil v. 
 .»v(i7/'c, 31 (;ii. I). 4'.I4 : Ji)iii.i V. Hitrri.i. .Vi L. 'P. N. S. ,S.S4 ; see Wiluiu'tl v. 
 Yduivi, 44 Ij. 'P. N. S. .'J31 ; Mniitinini v. Tin Liiiid < 'nr/niriitiitii iil' /■.'ii'i/niiil, oli 
 L T.N. S. 730 ; //dIiw.i v. Slii,,r,'7U L. 'P. .lour. 17<i: .■)•_> L. 'P. N. S'. 7'.I7 : 20 
 Siil.Iciin'. .">73, is to the contrary, an attidavit liein^'' there re((uired to picjve a 
 claim ill an action for s|M'citic performance ; but tiiis decision was doubted in 
 llr .liHiiih V. ,V( ('•//("/(, .■")(! \j. 'I. N. S. ISO; 3.-) \V. It. 40;<; see also /l'i;l/< ii v. 
 Snirh. 3-) W. 1{. 4(14 ; ."ill L. 'P. X. S. 3(10 ; and Unni v. I!i,l,i rtx, 32 Sol .lour. 
 IfJ. 
 
 Tile words "upon the statemeiitof claim" seem to indicate that no affidavit is 
 necessary, and it lins not been the practice in Out. to mpiire one, Xotwith- 
 staiidiiij; tJKJse wiirds in the correspond iii^,' liisii IJule, it has been held in 
 
 I'-laml that the plaintiff, wiiere his title depends on ■' '■■•■»■ ••■•-•^ .......1...... 
 
 prove them : Vriafnrd v. J):iild, Ifj L. K. Ir. .S3. 
 
 li 
 
 am 
 
 111 documents, must produce 
 
 
 <'^ 
 
 \ 
 
 72.S. Where, in any such action as mentioned in the 
 last preceding lUile, there are several defendants, then, if 
 one of the defendants makes such default as aforesaid, the 
 plaintiff may either set down the action at once on motion 
 tor judgment against t!io defendant so making default, or 
 may set it down against him at the time when it is entered 
 for trial or set down on motion for judgment against the 
 other defendants. .J. A. Eule 212. 
 
 Tiiis is identical with the Eng. R. 1875, O. 21), r. 11 (1883, R. .3or>). 
 
 Wlifsre sev- 
 eral (lel'eil- 
 (laiiis, and 
 om: iiiiikea 
 default. 
 
■■■■■F 
 
 620 JUDOMENT. 
 
 Rules Set- the liiil,- applifKl in Hi Smith, Hriiimn v. Smith, W. N. 1H7(!, 103. whew 
 
 729,730. line (Ixfcndiint iiiiulc (Icfault, and tin- otlicrs lulinitU'd the phtintifTV cluini bv 
 th»'ir (lefcnco. 
 
 Set- Niitioiial Provinriiil lUiok v. Evans, .M I,. .1. Thy. !»7 ; 3(» \V. K. 17". 
 wlicru (lefaiiltin^f ih'ffndant was an infant, and the action was set down under 
 KnK. I{- 1M7'>, •). 1!', V. 17 (not adopted in Ontario), for trial as a^riiinxt iiiin. 
 :ind motion for judi,'iin'nt a^'ainsl other defendants. The |)raetice in Ontiiriii 
 i> without express piuvision the sanii'. See also Iti l''il:ifiiti r, jVJ \j, .1. Cliy. K^: 
 tiiiriliii !• V. Tiiiiliaj, WW \\ . \{. \~W. 
 
 Wliere a defence' is put in liefore tlie motion under this Itnlr is made, tlioiijfli 
 iriegiil.ir. it cannot lie treated as a nullity: '<'/// v. Wiunliin, 1'.") ("ji. ll. 7ii7; 
 IJriiris V. Ti ri/i, '.( i^). IV I). 170 ; i/iinri.', where notice of nioti in has lieen scrvtil. 
 See notes U,lliih.t HO'.I, 371 and .Wl. 
 
 In a (.'Use where several jiersons joined as iilaintiffs to restrain the infrinfre- 
 ment of rij,'hts nf pasture to which they were si'verally entitled, and the (Icfeii- 
 dant countei-c^lainied ii^'ainst the plaintilVs and seven third parties, to irstruiii 
 the erection of fences on the land in (piestion, judjjment liy default of ii|i|ifiir 
 ance a(,'ainKt the seven third parties w;is refused liefure trial, liecause, ii-isiiinilit,' 
 them to h.ave heeii properly made parties, the cause of action ajfaiiist tlicniwit> 
 not severalde from that a^'ainst the |ilaintitfs : Virni n v. Thomtin, 3(i \V. R. 
 3'.I8 ; '>H L. '1'. N. S. 20. 
 
 I'nder the former f 'hancery Practice, where a hill was tiled apiinst a patentee 
 and his vendee iinpeachinff the jiateiit, and t lie venflee allowed tlieliilltdlif 
 taken /irn c<iiiji-i.iii, the plaintiHf failing to estalilish his case ajjainst the piiti-ntec 
 who defended, the liill was <llsniissed as against lioth defendants, thouKli witli- 
 o It costs as ti the Vendee : Mr/h niioll v. Mclh rmiitt, 3 CJIiy. Ch. 3.S. 
 
 7IiO. Jn any case in which iasm^s arise (a) other tlian 
 
 In case of 
 iisnos lie- 
 
 iwoinipar- between plaintilT and defendant, if any party to any sucli 
 than piiiiii- issuc makes default in delivering any pleading, the opposite 
 (Vcffcmiaiit pai'ty luay apply to the Court or a Tudge for such judgment, 
 if any, as upon the pleadings ho may appear to he entitled 
 to. And tlie Court may order jadgment to be entered 
 accordingly, or may make such other order as may lie 
 necessary to do complete justice between the parties. J. A. 
 Rule 2 1 ii. 
 
 in) Tlie Kng. H. 187."), (). 2!», r. 13 (1883, R. .307), has here the words "in any 
 acti<in.'" The Hules are otherwise the same. 
 
 The ]{iil>'f apply to enable the )ilaintiif in a counter-claim to olitain judfrnient 
 against any defendant thereto who makes default: Stmt v. Cnim/i, LTiCh. P. 
 tiS. 
 
 3. Confession of Action ou JunaMRNT. 
 
 (i) GcneraUi/. 
 
 Defondants T^O. A sole defendant or all the defendants in an action 
 foss action for the recovery of land, may confess the action as to the 
 land asYo wliole or a part of the pi-operty by giving to the plaintifl' a 
 orVa'rdf notice entitled in the Court' and cause, signed by the 
 ti^«i^pro- defendant or defendants, and the signature attested by his 
 ''*"* ^' or their solicitor and thereupon the plaintiff may forthwith 
 sign judgment and issue execution, for the recovery of pos- 
 
CONFKSSION OF ACTION OR JUDGMENT. 
 
 621 
 
 session and conts, in the words or to the eft'ect of Form No. f^%\. 
 164 in the Appendix. II. S. (). 1877, c. 51, b. 52. 
 
 7JII. In case one of several defendants who defends ;^"'J^"'nny 
 separately for a portion of the property for which the other craidefon 
 defendant or defendants do not defend, desires to confess ft?,"^,,'^"},,,. 
 the plaintilFs title to such portion, he may ^^ive a lilit" '^vh'il.h^'"' 
 notice to the plaintitf, and thereupon the phiintitf niav""i<":«."'". 
 fortliwitii siji[n jud<:;ment and issue oxi^cution for the 
 recovery of possession of such i)ortion of the projjcrty, and 
 for the costs occasioned hy the defence relating; to the same 
 and the action may proceed as to the residue, IL S. 0. 
 1877, c. 51, 8. 5iJ. 
 
 7JI2. In case one of several defendants who defends Ai|'J^fj^ 
 f 'parately in respect of property for which other defendants 'r'.iKiasi.. 
 also defend, desires to confess the plaintiff's title, he may JJarti"'"" 
 give a like notice thereof, and thereupon the plaintiff may 
 sign judpiment against such defendant for the costs occa- 
 sioned by his defence, and may proceed in the action 
 aga'ust the other defendants to judgment and execution. 
 R. S. 0. 1877, c. 51, s. 54. 
 
 7;iJ{. Final judgment upon a cognovit actionem or war- As to jivu:- 
 rant of attorney to confess judgment given or executed "JJ/'ior?/*. 
 before the suing out of any process, may be entered in any 
 Division of the High Court, and ni like manner and under like 
 circumstances, final judgment may be entered on a cofpiovit 
 actionem or warrant of attorney to confess judgment for an 
 amount not exceeding $400, in any County Court, unless 
 some particular office or some particular County Court for 
 that purpose is expressly stated in the co/y/jor/t or warrant. 
 B. S. 0. 1877, c. 50, s. 296. 
 
 7tJ4. Leave to enter up judgment upon any cofpiovit orijeaveto 
 warrant of attorney above 1, and under 10 years old, is to n'ont on" *'' 
 be obtained by order of a Judge, made ex parte, and if 10 ^[vfierto i.o 
 years old or more, by motion upon notice. T. T. Rules "''"""'"'■ 
 1856,27. 
 
 Sw note to /!h!i 731) ; ami si-.' Riiirs 47!», .")2i-)-,52n. 
 
 A motion under tliis Ruh would soeni to ho iiropor to be made in Chambers : 
 Ihuulli'ij V. Itiili, rts, 17 .Jul'. 440, Leave to enter judgment wa.s gr.anted where 
 tnewitnessto the cwiwirit liad left the Province: Kinii v. Bohinn, Tay. 2!»9 ; 
 ueulv. Lalhnm, 1 IT. C. ^l B. 412 ; and also in a case where tlie vof/novit wa; 
 ^ven years old, upon affidavit of t'.ie plaintiff, that the whole amount was still 
 'W. and that having received a letter from the defendant he believed liini 
 
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IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
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 FhotDgraphic 
 
 Sciences 
 
 Corporation 
 
 23 WEST MAIN STREET 
 
 WEBSTER, N.Y. US80 
 
 (716)872-4503 
 
 WAT 
 
 "^X"^ 
 
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 Confes- 
 Bions and 
 eognovitg 
 to be re- 
 gistered 
 
 .1 %-• 
 
 622 JUDGMENT. 
 
 Rules to be still alive, though the affidavit failed to state that the defendant either 
 
 736, 736. wrote or signed the letter : (Hiphatit v. Mcdinn, 4 IT. C. il. B. 170 ; but it was 
 refused when the coijnovit was fifteen years old, ind it apiwared that the 
 plaintiff iiad once aoct'pted ])roiierty frmi the defendant, and discharged the 
 action, though the i)roi)erty proved un))nxluctive : Urant v. Mcintosh, 4 
 O. .« 184. 
 
 *i^?>. No confession of judgment or cor/novit actionem 
 'sl:y\ bd valid or effectual to support any judgment or writ 
 of execution, unless within 1 month after the same has 
 ')'jtu .i7'3n, the same, or a sworn copy thereof, is filed of 
 vrco ' tiie proper oifice of the Court in the County in 
 whi'j'i I'le person giving such confession of judgment or 
 cogncvi* actionem resides : 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, the 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 
 20 cents. R. S. 0. 1877, c. 50, s. 297. 
 
 When judgment has iM'cn signed on the coi/novit before the time limited by 
 this Jti'/c for filing it lias elajtsed, it need not be filed, (jr entered in the cdiinorit 
 hook, as rwiuired by this Rule: Covimcrcinl Bank v. Fletchvr, 8C. P. 181; 
 Armour v. C(irr\Uh('r», 2 P. R. 217 ; McLean v. Stuart, 2 P. R. 307. 
 
 Immaterial dis(Te])ancies between the copy filed and the original, do not 
 invalidate the coanorit : Irwin v. Ham, l( U, C L. J. 80 ; and see iihaqi v. 
 MoHmri/, 38 Ch. D. 427. 
 
 beoxecuted '^•^®- ^o Warrant of attorney to confess judgment in any 
 in presence action, Or cofiuovit actionem, given by any person, shall be 
 of sohcitor. ^j ^^^^, force, uuless there shall be present some soUcitor on 
 behalf of such person expressly named by Mm, and attend- 
 ing at his request, to inform him of the nature and effect 
 of such warrant or coijnovit, before the same is executed, 
 which solicitor shall subscribe his name as a witness to the 
 due execution thereof, and thereby declare himself to be 
 solicitor for the person executing the same, and state that 
 he subscribes as such solicitor, and in the affidavit of execu- 
 tion, the attendance of such solicitor, and the fact of his 
 being a subscribing witness, shall be plainly stated, which 
 aflfidavit and the warrant of attorney, or cognovit, shall be 
 filed at the time of entering judgment thereon. Rules T. T. 
 1850, 26. 
 
 A partner cainiot give a cmiiiorit so as to bind liis firm witiiout Kin'cial 
 authority : Holme v. Allau, Tay. 148 ; Huff v. Cumeron, 1 P. R. "^hi ; Juu(C v. 
 
CONFESSION OF ACTION OR JUDGMENT. 
 
 62$ 
 
 Murrit'i, M. T. (5 Vict. ; but when there is evidence oi assent on the ])art()f the Rule 736. 
 other partners, the coiinovit will bind thefimi : Brown v. Vinqtiiars, 2 J'. K. 205. 
 
 One of several executors cannot, without express authority, give a coiiiiorit 
 biiuliiis? liis co-executor ; and a judgment entered on such a confe.ssion will be 
 st't aside as to all : Vomiiiercial Bank v. Woodruff, 21 IT. C. il. U. ()()2. 
 
 A ri'lieta viritiMtione is not within this Rule, and does not recjuiro to be 
 veritie;! by affidavit • Eakinx v. Fraavr, (> P. K. 2!)7. A cotinovit may be 
 ttxecutcd hy tlie attorney of the party giving it : Richmondx. Proctor, 3 C C. 
 L. J. 202. 
 
 All luicertificated attorney may attest: Unhjatr v. Slirikt, 2 L. M. & P. (i(>2. Who may 
 but iitit an attorney's clerk: BiirncK v. Ward, Barnes 42 ; Paid \\ Vlt<iv(r, 2 attest co</- 
 Taunt. 8(11), nor a person not actually an attorney, though l)elieved to be one : "oi"'*- ^ 
 
 Walldcr V. BriH-khii, o Dowl. ()().5, but where the defendant wrongfully mis- 
 represented a person to be an attorney, the Court refused to set aside the 
 jiulgiiicnt : ' 'it.r V. Cdtinon, (( Dowl. P. C. iS'li\ ; Jciicx v. Booth, 1 15. it P. !)7 ; the 
 plaiiititfs attornev cannot ])roperly act for the defendant : Mutton v. Kiddle, 5 
 M. it \V. 513 ; Ilicr V. Linntvd, 7 Dowl. P. C. 1.53; Uarrant v. Blurton, !) J^owl. 
 P. C. 1015 ; even though tiie hitter consent : Hntiton v. Hutson, 7 T. R. 7 ; 
 I'riior V. Sirainc, 2 D. & L. 37 ; Joel v. Dicker, 5 I). & L. 1 ; Mason v. Riddle, 
 8 l')<nvl. P. C. 207 ; Cooper v. (,'7-((nt, 21 L. J. C. P. 1!»7 ; Hirxt v. Hannah, 17 
 y. B. 3X3, The? attorney nuist, in general, attend at the request of the defen- 
 dant: l.'riii/in-\. Brixloir, (i M. & W. 807 ; Rice v. Linsted, 7 Dowl. P. C. 153, 
 l)ut tlie ado|>tion by the defendant of an attorney present, not being the 
 plaintitT's attornev, no matter how procured, is sufficient: Taijlorw NicholU, 
 (1 M. & \V. 01 ; 'Walton v. Chandler, 2 D. & L. 802 ; Oliver v. Woodroffe, 4 
 M. k W. 050 ; Cixr v. Bemon, 3 U. C. _L. J. 132 ; Levinson v. ,S>r, 2 L. M. &P. 
 557 ; and see Meriden v. Lee, 2 Ont. 451. 
 
 It is not necessary that the coijnorit should be read over to the defendant, it Cognovit 
 is sufficient if its nature and effect be explained to him : Oliver v. Woodroffe, 4 need not be 
 M. & W. ()50, but tile neglect of .an attorney chosen by the defendant to explain read, J^ex- 
 the instrument, will not vitiate it : Haiijh v. Front, 7'Dowl. P. C. 743; Ca-.c v. P'ained. 
 Braxon, 3 U. C. L. .(. 132, unless there be fraud orci)llusion ; Ta'/lor v. Nieholls, 
 G M. & W. 01 ; and see dorrie v. Beard, 5 U. C. l^. B. (12(5. 
 
 It is advisable to state in the attestation clause that the requirements of the .<ttestatio» 
 Huh' have been c()in|)lied with, but the attestati(m has been held sufficient, clause, 
 tlumjjh (iinitting to state that the attorney was ap))ointed by the defendant : ^ovm of. 
 Olirerv. Woodroffe, 7 Dowl. P. C. 1()8, or was named by him, or attended at 
 his recpicst : h'a;/ v. Hall, 5 Dowl. & L. 422, and did not declare him to subscribe 
 as defendant's attorney : Knidht v. Haxtii, 12 L. J. (I. B. 203; Holt v. Kcmhaw, 
 5 D. & L. 410 ; Phillips v. (.'ihhs, K! M. &' W. 208 ; but see Everard v. Poppleton, 
 51^. B. 181; HiLliert v. Barton, 2 Dowl. N. S. 434. The following form of 
 attestation h.as been held .sufficient : " Signed by the above named A. B. in my 
 presence, and I declare myself to be attoriiey for the said A. B., and I sub- 
 scribe my name as such his attorney" : see (/((.)/ v. Hnll, 18 L. J. Q. B 12; 
 Ledimril \. Thompson, 11 M. k VV. 40. The jirovision resjiecting attestation is 
 fertile benefit of tii(^ defendant, a third jiarty cannot object to a judgment on 
 the ground tiiat the coqnorit ow whicli it is entered was not fonnally executed : 
 Chipp v, Harri», 5 M." & VV. 4.30 ; Cockx v. Edwardx, 2 Dowl. N. S. 55 ; nor to 
 the want of an affidavit of execution : Potter v. Pickle, 2 P. R. 301, 
 
 A ciiiiiiiiril may be given in an action though no jn-ocess has issued : Walton Cognimt 
 v. Hiti/iniril, 2 (). S. 408 ; Rule 733. The practice of taking coijnovif.i is not now may he 
 very often resorted to since R. S. O. c. 124, s. 1, which avoids judgments «iven, 
 recovered on rui/ni.rits given by insolvents, for the jiurpose of giving a ])refer- t"0"Bb 
 ence^ or to defeat or delay creditors : see Meriden v. Lee, 2 Ont. 451 ; Martin lal^ed 
 Mlilne, 8 Ont. A)ip. (175. The same result, however, is arrived at, by a 
 
 v, .1/,-. 
 
 defendant ajipearing and delivering a defence and then ctmsenting to an 
 immediate judgment : Tamer \. Lucas, 1 Ont. 023, affirmed in appeal, 10th 
 
 September, 1884. 
 
 ^'•c !i|'l'licafcion for leave to enter judgment must be made in Chambers : Leave to 
 Uamllei/ v. RahcHn, 17 Jur. 440. The motion can now be made to the Master enter jndg- 
 in Chambers. It is irregular to enter judgment without leave, when leave is jue"t '"ly 
 
iiHi 
 
 624 
 
 Rules 
 737-739. 
 
 in Cham- 
 bers. 
 
 JUDGMENT. 
 
 necessary : Junes v. Jones, 1 D. & R. .558. When tlie cognovit is ten years' old, 
 notice to defendant of the motion cannot be dispensed with : Nivhvlns v. Merit 
 i) Dowl. P. C. 101 ; Fletcher v. Krrrurd, 13 L. J. t^. h. 44 ; but see ('mft v Lord 
 Kijmont, 8 Dowl. P. C. 95; '.Vort/iam v. Tuck, 9 Dowl. P. C. 33.^. 
 
 Defeasance 
 to wliicli 
 any cuf/nonit 
 is subject 
 to 1)6 writ- 
 ten un 
 same 
 paper. 
 
 Oniisaion 
 of solicitfu 
 to comply 
 with little 
 7:t7, effect 
 of. 
 
 7JI7. Every person who prepares any cognovit or warrant 
 of attorney to confess judgment, whic. > s to be subject to 
 any uefeasance, shall cause such clefeasance to be written on 
 the same paper or parchment on which the cognovit or 
 warrant is written, or cause a memorandum in writing to 
 be made on such cognovit or warrant containing the 
 substance or effect of such defeasance. Eules T. T. 1856, 
 28. 
 
 The omission of a solicitor to comply with Ride 737, does not invalidate tho 
 instrument, but sul)jects the solicitor to piinisiinK'nt, on application to thi' 
 Court: .see Shuv) v. Kran.i, 14 Erst. .57(> ; Paiifiiti/c v. Fniser, 7 Taunt, 307; 
 Stoisoiii V. (>'(}0(le, 2 B. & Al. 508; Burlier v. linrher, 3 Taunt. 4ti,') ; liiinlehiu 
 V. Potter, 1 Dowl. N. S. 134. 
 
 (ii) Interim Alimony. 
 
 I'sfeudaut 7J$.S. In an alimony action, the defendant may, at any 
 
 plaintiff time before the statement of defence is due, give notice in 
 
 mils'toT>ay writing that he submits to pay the interim alimony, and 
 
 aa'moifv costs, as demanded by the plaintilf in the indorsement on 
 
 claimed, the Writ ; and in that case no order is to be taken out until 
 
 there has been a default in payment ; and in case of 
 
 default, affidavits being filed verifying the indorsement ami 
 
 notice and the default, the order is to be issued on pmcipe. 
 
 Chy. 0. 490. See J. A. App. (A.) 8. 
 
 Where the order is authorized to be issued on pracipe, the officer witli whom 
 the pleadings in the action are filed may issue it : see Rule 25. 
 
 No application for payment of interim alimony, or interim costs, in an 
 alimony action can be made imtil after the time for delivering a defence has 
 expired : Huleis 530, 1185, and see notes to Jhile 530. 
 
 Leave to 
 sign tlual 
 judgment. 
 
 4. Leave to Sign Judgment. 
 
 TJIO. Where the defendant appears to a writ of sum- 
 mons specially indorsed, under Rule 245, [(a) and the 
 plaintiff is not entitled to a judgment or order, under the 
 preceding Rules! he may, [{b) on an affidavit made by hiffi- 
 self, or by any othtn* person who can swear positively to the 
 debt or cause of action,] verifying the cause of action, and 
 stating that in his belief there is no defence to the action. 
 serve the defendant with a notice of motion to shew 
 cause before the Court or a Judge why the plaintiff should 
 not be at liberty to sign, final judgment for the amount 
 
cer with whom 
 
 LEAVE TO SIGN JUDGMENT. 
 
 00 intlorsed, together with interest, if any, or for the ^^^ ''^^• 
 recovery of the land with or without rent or mesne profits, 
 as the case may he, and costs, (c) A copy of the affidavit 
 shall accompany the notice of motion. The Court or a 
 Judge may thereupon, unless the defendant, by affidavit or 
 otherwise, (d) satisfies the Court or a Judge that he has a 
 good defence to the action on the merits, or discloses such 
 facts as may be deemed sufficient to entitle him to defend 
 the action, make an oider empowering the plaintiff to sign 
 judgment accordingly. J. A. Eule 80. 
 
 Cmnii. Kuff.K. 1875, (). 14, r. 1 (1883, R. 115). 
 
 {ti) Tlicsc words ill brackets are not in the Kiif,'lish Rule, {h) Instead of the 
 wdiils ill lirackets liere tlie Eiigrlisli Rule lias the worels "apply to a Judge , 
 
 lur lilicrty to enter." (c) The Knglisli Ruh' lid provides for this, and that the 
 applicatinii he by suininoiis. The Rules are otherwise to the same effect. 
 
 The words in brackets (li) have been introduced in conse(iuence of the 
 (Iceisioii ill J]<nik <if Montrcdl v. Cauuron 2 (}. B. D. t)'H>, where it was held 
 timt siiiec, under the original Ruh', the afiida.it was required to be made by 
 |ilaiiititf liimself, the Rule could not apply where a cor|)oration was plaintiff. 
 
 (f) As to this provision; see Litehlidd v. Jones, 25 Ch. D. 04. 
 
 ('/) By reason of the words "or otherwise," it was held that the reasoning in 
 Bitnk nf Miintrail v. Cn}iiir«n, miprd, did not aiiply, and that therefore a jilain- 
 tiif iiiav a|i|.". ,• for judgment under this Itulr wliere the defendant is a corpora- 
 tion : Shclford v. Lnutk <l' E. C. Jii/ Co.. 4 Ex. 1). 317. 
 
 Leave to sign final judgment was granted against a corporation having its 
 litad office in Kngland, i; .corporated there and in process of li(|uidation there, 
 Imt doing business and having assets and liabilities in Ontario : Plummcr v. 
 Lukv Hiqinior Native Copper Co., 5 C. L. T. it5 ; 21 C. L. J. 80. 
 
 A [lower an... -gous to that conferred by this JOde was formerly exercised in Leave to 
 t!ie CoiiiiiKui Law Courts in Ontario, after Tke Administration of Justice Act, sign judg- 
 iii cases wliere |)leas were put in for time ; and that practice may in such cases ment. 
 still he a])]ilied. In such a case, if by an examination of a defendant his pleas 
 were shewn to be untrue, an order might be obtained in Chambers striking out 
 the pleas, so that the plaintiff could sign judgment in default of plea ; see 
 McMuslcr v. Ileuttie, (i P. R. 102 ; JMiris v. Code, 7 P. R. 2; Johnson v. Johnson, 
 /'i.,288; Imperial Bank v. Suinmerfelt, Ih., 320. The Courts would not how- 
 ever strike out a jilea upon the plaintiff's affidavit, but required a clear a^lniis- 
 sidii by the defendant tliat there was no real defence : see Arch. Pr. 12th ed. 
 M; Turner v. Neill, P. R. 2i)5; Post v. Leys, 7 P. R. 357 ; The Queen /»w. 
 Co. V. Boi.'d, Hi., 37!). In an ejectment suit brought by mortga{?ees, though the 
 defendant admitted that he appeared and defended for time, it was neverthe- 
 It'ss held that the apjiearance and defence could not be struck out, fis the defen- 
 dant was entitled to possessitm until the plaintiff should prove his case : see 
 Metropolitan B. AS. Sac. v. Hodden, P. R. 204. 
 
 Under the present Rule the onus is thrown upon the defendant of shewing 
 that he has a defence, where it is sworn on the part of the plaintiff that there 
 is none. 
 
 In England it has been said that the power given by this Rule is intended to When RuU 
 be exercised where it is shewn from an acknowledgement by; the defendant of applies. 
 the debt, or from other circumstances, that the defence is only for time ; 
 iM's Bnnkinj Co. v. Ogle, 1 Ex. D. 202; Thompson v. Marshall, 28 W. R. 
 
 Where the nature of the claim involves the taking of accounts between the 
 l,'*r'i''s^the Rule is not s-oplicable : WalUngford v. Mutual Societi/, 5 App. Cas. 
 •w). S(i where something beyond tiie recovery of money is sought ; Fell v. 
 William:^, S C. L. T. 358; Standard Bank v. Wells, 10 P. R. 159; Be Rojas v. 
 
 j.A. 40 
 
!■ " 
 
 ^■•iBMpMP 
 
 626 
 
 JUDGMENT. 
 
 Rule 739. Michiicl, 7i< L. T. Jour. !•!(, wliero bfsidos elaiuiiiig uioiioy tlu' i)liuiititf asked 
 restoration of a steaiu«liii» and injunction to restrain tiie defendant froni imrtiiiL' 
 with it. 
 
 But in a projKir case there may be two judgnients in an action, and wiuivone 
 claim is in respect of a money demand, leave may be given und('r this /I tilt to 
 sign judgment for the amount and allowing tlie action to proceed upim otlier 
 claims: //",'/ v. JtihnMini, VI V. R. .5!l(), (where the claim was on a hill of 
 exchange, and to set aside a conveyance as fraudulent) not following in that 
 resi)ect SItiiulavd Hunk v. ll'iV/.v, 10 P. H. loit. 
 
 Tiiough an order imder this Itulv is for an admitted amount or one seen 
 clearly to be due, and the Ride does not contt!nii)late an order for a sum to be 
 ascertained by a reference or incpiiry ; still in the case of an action on a solici- 
 tor's bill, where it is clear that something will be due to the jilaintiff, tluMisual 
 order for taxation may be made, combined with an order under tiiis RaU for 
 payment of the amount which, as the result of the taxation, shall be payable ; 
 Hiiiith V. Edwurdes, 22 il. ]i. D. 10. For the proper form of order in sucli case ; 
 see Ih., p. \V). 
 
 Where wr 
 Rpecially 
 indorsed 
 u >der Kul 
 215. 
 
 t An api'lication imder this liuU' can only be made wl 
 Bpacially indorsed under Itide 24.'), /.<'., where the clain 
 
 re the writ lias l)een 
 in resjiect of a debtor 
 
 ^ liquidated demand, etc., and in certain sim|)le claims c the recovery of land : 
 ^ see Rule 24.5. Where, therefore, the claim was upon a covenant in' a chattel 
 mortgage given as a continuous security for f\iture advances, and tlie writ was 
 indorsed for the amount mentioned in tiie mortgage, and not for the various 
 advances, and the Master in Chambers had directed judgment to be signed for 
 a sum less that $2,500 which upon affidavits and tlie depositions of defendant 
 appeared to him to be due, it was held on apjjeal that the plaintiff's claim was 
 not a debt, or liquidated demand. Mr. Justice C'ameron in giving judgment 
 said, "I think the power to authorize a jdaintiff to sign judgment against the 
 defendant, where the defendant makes an affidavit of merits, and disjiutes the 
 claim, should be most carefully and sparingly exercised, and never imless it can 
 be shewn that the plaintiff may be seriously ])rejudiced by the delay that may 
 occur in awaiting the ordinary modes of trial, and that it siiould not be exer- 
 cised in any case in which, under the old practice, final judgment could not 
 have been proi)erly signed for want of appearance " : Burlier v. Mussed, !) P. R. 
 433, 442. 
 
 An action upon a foreign judgment is within the Rule : Urant v. EasUm, 13 
 Q. B. D. 302. 
 
 In Hwid v. Martin, !) P. R. 313, where a writ was indorsed to recover the 
 price of land bargained and sold but not conveyed, it was held that the ))laiiitiff'» 
 claim was for damages, and not the subject of a special indorsement, so that the 
 case was not within the Rule. 
 
 In actions where tiie writ is indorsed, not under Rule 245, but under Ridel^, 
 for foreclosure and immediate payment of the amount due under a covenant in 
 a mortgage, this Rule has been held not toai)ply : CaiiKilioit limik nf Ctiinmerce 
 V. Bricker, 1 C. L. T. 729 ; Hill v. ,SideOt.ltt)in, 47 L. T. N. S. 224 ; Imbert Tcn-y 
 v. Carver, 34 Ch. D. 500 ; Clarke v. lieriier, 30 W. R. 80i). 
 
 The plaintiff was held not entitled to judgment under this I'ulr where the 
 writ was indorsed as follows : " The plaintiff's claim is for the price of goods 
 supjjlied. The following are the [)articulars : — .'?()21.00 for money jiayaide by 
 the defendant to the [jlaintiff for goods bargained and sold and deli>'ered by the 
 plaintiff to the defendant, and interest thereon from 25th Jidy, 1882 " : Lims 
 V. Ross, P. R. 251 ; so also where the claim indorsed was " the plaintiff's 
 claim is for $213.90 balance due for sawing wood by the plaintiff for the 
 defendant" : Villetieuve v. Wait, 12 P. R. 505. 
 
 For other instances of insufficient special indorsements, see notes to Jltik2i5, 
 p. 282. 
 
 Where a writ is indorsed for liquidated and unliquidatsid demands, the writ 
 may be amended by striking out the unliquidated claims, and judgment may 
 be signed for the remainder : Roljuufoii v. Redsttm, 8 L, R. Ir. 20. 
 
' >v ■ ,1 'Y '^ ~™ 
 
 w 
 
 LEAVE TO SIGN JUDGMENT. 
 
 627 
 
 111 caees of 
 money de- 
 mand only. 
 
 Married 
 women. 
 
 A foniial error in the indorsiniient of tlie writ, wich as the misplacing of a Rule 739. 
 date is n.) iiiiswer to an application under thin iiu/r .- vlno/i, W. N. LS7<), 08 ; 
 'i'charl. CI' f'a. 20. Neither is a mistake in the teste in the copy of writ 
 served : V. fxon v. Stalker, 47 L. T. N. S. 444 ; where the year was given in 
 the copy as "eighty" instead of " eightv-two " ; see also Re Johnson, 25 
 Ch. 1). 112. 
 
 It was at firit considered doubtful whether the Rule refers to anything liut a 
 monetary demand, and whether, therefore, in an action in which it was sought 
 toiiliargea wife's separate estate on a guarantee, an order under the present 
 Ruh could be made by anv amendment of the writ : Jiutterworth v. Tec and wife. 
 W. N. l«7(i, ': : 1 Charl. Ch. Ca. oO ; see also Scott y. Wije, 11 P. II. !»3. The Ride 
 was held not to be applicable, in the ca.«e of an action against a widow in respect 
 of bills of exchange given by ner during coverture: Ortner v. Fitmihlxni, 43 
 L.T. N. S. liO ; TiO L. J. Chy. 17 ; in England, even afttT the Harried Women's 
 Act of 18S2 : Moore v. Mulli<ian, VV. N. ltS84, 34, tiiough the cimtrary was held 
 ill Ireland : Jiroirn v. Morfian, 12 L. R. Ir. 122 ; Johnstone v. llrowne, 18 
 L. K. Ir. 42'.l; and also in England : Uunston v. Maymtrd, 7") L. T. .Jour. 102; 
 Pnh v. Miilrca, W. N. 1H84, ()4. 
 
 In Ontario, since 45 V. e. 1!), it has been held that the Ride may be applied, 
 and judgment entered in a plain case against a married woman, with execution 
 against her separate estate not siibject to restraint or anticipation: Kiniiear v. 
 Blue, 10 P. K. 4(!5 ; Quebec Bank v. Radj./d, 10 P. R. (jl'.t; ('amernn v. Rather- 
 ford, 10 P. K. 020 ; and the later Knglish v.ises seem to have established the 
 same riglit in England : see Jiursill v. Tanner, 13 Q. B. D. (j!)l ; and other 
 cases referred to in the notes to Rule 314. 
 
 Tiie i)laintiff must, however, shew that the married woman was capable of 
 contracting by shewing the possession of separate estate at the date of the 
 contract: see notes to Rule 314, p. 338, and Canadian Bank of Commerce v. 
 HVWfocA-, 13P. R. 242. 
 
 Before the Eng. M. W. .Vet of 1882, (Out. Act of 1S84), in an action against 
 a married woman for the price of goods supiilied during coverture, orders were 
 made directing an intpiiry as to the existence of any sejjarate estate chargeable 
 with the sum claimefl, and declaring the same to be charged tlierewith : 
 Diirmnt v. Ricketts, 8 (^ B. D. 177 r 18C. L. J. 100, and see Pike v. Fitz<jMon, 
 11 Ch. D. 454. 
 
 For the form of oi'der now, se< notes to Rule 314, pp. 338-0, and Quebec Bemk 
 V. Rculfurd, 10 P. R. Gl!». 
 
 Judgment may be obtained against an Indian, as, since the repeal of C. S. C. 
 c. !l, an Indian may sue and be sued, thougli by the Indian Act of 1880, s. 
 ''{<!). the judgment will not liind any jiroperty of tiie Indian except tliat 
 described in si^c. 75 : /Sri/ce, etc., Sidt, 11 P. R. 112. 
 
 .■Vsto tli(( cases of actions to recover land to which t..e present Rule has now 
 teen made ai)|)lical)le : see notes to Rule 245, xupra p. 284. 
 
 Where the plaintiff is liable to give security for costs and an order for that 
 puriwse lias been olitained but the plaintiff has a case for setting it aside, it was 
 lipid under the original /tule.s that he might move uno flutu and upon the same 
 materials to vacate tlie order for security and to sign judgment : Amjlo-Ameri- 
 ''101 Cdsitii/n Co. V. R'lw'iii, 10 p. R. 3:t4. This course cannot be taken now ; 
 Init it is open to a plaintiff, under /iale 1251, to pay •'?50 into Court as a partial 
 i'iiii|iHance with the order for security, and proceeil with the motion for judg- 
 ment : Paiine v. NeirUrril, 13 P. R. 3.")4. 
 
 The Master in Chambers and the Local Judges under Rules ,30, 41, and 138, 
 have jurisdiction to entertain Hjjplications under the present Rule. 
 
 No time is limited within which an apidication may be made, and it has 
 therefore been hidd to be regular after statement of claim delivered : Hope v. 
 Ml, 12th Sei)., 1881, (Mr. Dalton) ; and neeHanmerv. Fli<iht, 36 L. T. N. S. 
 2"9. It is held in Ireland under a similar Rule that, after i.ssue joined on a 
 statement of defence, a plaintiff cannot resort to this summary procedure, a.s 
 hchasadopted the defendant's mode of procedure: Hackettw Lalor, 12 L. R. 
 h'. 45; also that where tiie plaintiff after appearance takes any deliberate step 
 
 Indiano. 
 
 Actions to 
 recover 
 land. 
 Se<'i]rity 
 for costs. 
 
 Time for 
 moving. 
 
v^mmmmm 
 
 628 
 
 JUDGMENT. 
 
 Rul* 739. to have the action tried by a jury by herving a statement of claim, he cannot 
 move under this Rule: Stcwartstown Loan Co. v. Daly, 12 L. R. Ir. 418. 
 
 In Ontario the rule in that motions after the statement of claim is delivered 
 are not to be encouraged, though in cases of necessity, allowable : IIV«)(/rH/v! 
 McLennan, 11 P. R. 22 ; but see AfcLardy v. Slatenm, 24 Q. B. D, .'"i04. 
 
 If the vime for delivering defence is running jiending the motion, the Judge 
 or Master will by his order give further time if necessary : llobwn v. Monk 
 W. N. 1884, 8. 
 
 Aflldavit. In Beoo v. Cooper, AO L. T. N. S. 29 ; 27 W. R,. 224, it was held that the 
 making of the plaintiflf's affidavit was not a condition precedeTit to the issue of 
 a summons, and therefore where the plaintiff made a defective affidavit, then 
 obtained his summons, and afterwards made a fresh and go<Kl affidavit it was 
 held that the issue of the summons was gfx)d. 
 
 Under the i)ractice in Ireland where a motion was refused, because no affi- 
 davit was filed at the time of service or the summons, the Court refused to 
 entertain a renewal of the motion : Trench v. Mulcahy, 8 L. R. Ir. 14(! ; but in 
 England the dismissal of the motion has been held no bar to a fresh applica- 
 tion on fresh materials: Wagstaff v. Jacubowitz, W. N. 1884, 17; and see 
 Payne v .Newberry, 26 C. L. J. 155. 
 Form of The plaintiff's affidavit should not only verify the cause of action, but also 
 
 affidavit of pledge the deijonent's belief that there is no answer to the plaintiff's demand ; 
 plamtiff. j^i^iif y MaitKey, t) L. R. Ir. 445. An affidr 'it of plaintiff wiiicli stated that 
 he was " advised and believed defendant had no defence on the merits to the 
 action '" was held sufficient : Manninn v. Moriarty, 12 L. R. Ir. 372. 
 
 An affidavit by the plaintiff's solicitor not stating his means of knowledge is 
 not sufficient: Edwards v. Davis, W. N. 1888, 59. 
 
 The following is the form of affidavit required, in money cases, taken from 
 Chitty's Forms, 11th ed. 100 : .see Runnacles v. Mesquita, 1 Q. B. I). 41G. 
 In the High Court of Justice. 
 
 Division. . ■ 
 
 Between A. B., Plaintiff, and 
 C. D., Defendant. 
 
 I, A. B., of , the above-named i)laintiff, make oath and say as 
 
 follows : 
 
 1. This action was commenced on the day of , 
 18 , by a writ of summons specially indorsed with my claim licrein, in 
 pursuance of the Rules of the Supreme Cour', Rule 2i5. 
 
 2. My said claim so indorsed is for [liere state the elaim as in the 
 indorsement]. 
 
 3. The defendant appeared in this action on the day of 
 
 , 18 . 
 
 4. The defendant at the commencement of this action was, and still is, 
 justly and truly indebted to me in $ , in respect of tiic matters in 
 the said indorsement mentioned. 
 
 5. That [here state, as concisely as is consistent tvith charn'ess, the fnctf upon 
 which the plaintiff's claim is founded. Mere mettters of evidence need not nects- 
 sari/y be stated, but a </(>od cause of action rvust be disclosed, and the pbiintifi 
 claim in respect of it verified, and in some ca.ic: it may he adiisable to state the 
 evidence by which it is supported. The form of the affidavit must necessarily vary 
 according to the facts of each particular case. The statement of facts mail be 
 confined to one paratjraph or divided into severed, as may be found moit 
 convenient. Each pareir/raph shoiikl conteiin, as far as possible, a separate alle- 
 ijation of fact. The affidavit should be made as strowj as possible, and nny facts 
 tending to show an admission of the claim by the defeiulant should be ilistinctlu 
 stated]. 
 
 6. In my belief there is no defence t(j this action, and the api)oarftnce has 
 been entered for purposes of delay only. 
 
 Sworn [etc., as usual]. 
 
 This affidavit ia filed [etc., as usual]. 
 
LEAVE TO SION JUDGMENT. 
 
 629 
 
 "The (k'feiidant is indehtcrl to tlu! plaintiff in tin- Hum of £24 ICtf. Oil. as /nr Rule 739. 
 particulars specially indnrsed on the writ of sunimons," was held to he a 
 sutiicieiit veriKcation of the s)>ecial indorsement to entitle the plaintiff to judjf- 
 meiit ; Mitr/ili!/ v. Solan, IS L. 11. Ir. 4t»8. 
 
 On sucli a motion the only question to be determined is whether the Judge What de- 
 issatisKed tlr'.t there is a good defence on the merits : 2»''' Jessel, M. K., A','-. //. feiulant 
 Mar.sh,it/, r, V.h. 1). «77. '""«' "''f'W- 
 
 Till' .ludge or ^Master does not pretend to try the action: .\iiilri'ir.i v. 
 Steiriirl, '1 Ciiarl. Ch. Ca. 50 ; \V. N. 1S70, 7 ; th;)Ugh to a certain extent tlie 
 qiipHtion of liability must beentertaint'd in scrutinizing *lie defence to ascertain 
 if it is fairatiil reasonable; I'hillip.i v. Ilm-ris, W. X. lS7(i, 04; L'Charl Ch. Ca. 
 2(); Aii<il'-/tali,ui Hank v. IIV'/Av, W. N. 1877, 2(i3 ; 1878, 10; 38 L. T. N. S. 
 11)7. 
 
 What must be shewn to entitle the defendant to defend has been variously 
 expressed. It lias been said, for instance, that he is only recjuired to show a 
 "//»»(( //(/c" defence : Anihrnv v. Strwiirt, siij/r" ; to suggest a defenc^e and 
 sliuw some ])robal)ility of getting it from tiie ))laintiff, or |)roving it iiiniself : 
 //((/'/■'.s'.u V. Jiiillciilifiiii, 2() W. R. 3(i2 ; or reasonal)le ground for supposing tiiat 
 there is a "plausible" defence? ; lii'r/,-i,ii)liiiiii v. Oiri'ii and Tlinrni' v. .SVvV, W. 
 N. 1S78, 21"); or grounds for fairly disputing the claim: Ritinuir/cx v. 
 Mitiiiiiitii, 1 (I. B. I). 41(> ; or that the matter is so doiibtfiil tliat it ought to be 
 allowed to go to a jury : .\iii/ri'ir,s \. SIcvdii, and /Ifrk'iii'iliuiii v. Oirm, .<tuprii ; 
 .1.(0,1, W. N. 187(), (14 ■; J!en-i</</r v. Jtyhrr/s; W. N. 1870, 80; 2Cliarl. Vh. Ca. 21. 
 The facts disclosed in defendant's affidavit nnist justify a reasonable helief that 
 he lias a defence : Luiii/ini, dc, v. Willis, 28 ,Sol. Jour. 478 ; see also Hiu/hxun 
 V. (liirdmi, 10 l\ R. f)0.5. 
 
 Ill Fi'll V. Willidms, 3 C. L. T. 308, it was held that the idaintifl's case 
 must ai)pear to a demonstration, and where the defendant set up matter which 
 iiii^fht possiljly afford fi defence, the Court refused to criticize or enter into the 
 |)r(ibal)ilities of the defence: see also T/iuiiijiunn v. Marxhull, 28 W. R. 220, and 
 Lnnkit V. .Martin, 12 P. R. 4!I0. 
 
 In answer to the motion a simple affidavit of merit.s is not sufficient, Affidavit of 
 the affidavit must di.solose a good defence, /.''. shew its nature, and give defendant 
 some reason for tiiinking that it exists in fact: ('ullin.s v. llirhik, llmustdis- 
 Oiit. Api). <>20; I'oKail v. Stonr, 0th Sei)t., 1881, (Mr. Dalton) ; see also close de- 
 .\iim,, 1 Char. Cii. Ca. 48; W. N. 187.'), 240, 2r)0. In the words of Lord ^''"''^• 
 Blackhurn in Witlliinjfiird v. Mittmil Sue, o App. Cas. 704: "It is not 
 enoiiffh for defendant to swear ' I say I owe the man nothing.' Doubtless if it 
 were true that you owed the man nothing, as you swear, that would be a good 
 defence ; but that is not enough. You m.ist satisfy the Judge that there is 
 reasonable gromul for saying so. So again if you swear there was a fraud, that 
 will not do. It is diffionlt to define it, Init you must give such an extent of 
 definite fiicts ])ointing to the fraud as to satisfy the .luoge that those are facts 
 wiiich make it reasonable that you should be allowed to raise that defence. 
 And in like manner as to illegality, and every other defence that might be 
 mentioned." 
 
 Tile fact that there is a valid counter-claim is not necessarily sufficient, as When 
 the iulniission of a counter-claim is nf)t of right but in the discretion of the counter- 
 Judge : Air/lo-Italian Jiittik v. II *■//.«, W. N. 1877, 203 ; 1878, 10 ; ,38 L. T. claini 
 N, S. 1!)7 ; Fowler v. Lee, \V. N. 1870, 80 ; Rothcram v. Priest, 40 L. J. C. P. sufficient. 
 104; Anm, 1 Charl. Ch. Ca. 45; liuiik of Ottawa v. Johnston, 9 C. L. J. 251. 
 
 Where a counter-claim is, however, jtro per, the defendant will generally be 
 allowed to set it up : Anon, 00 L. T. Jour. 85 ; 1 Charl. C!h. Ca. 45 ; Morin v. 
 Cdlwrk, 2(i Oct. 1881, (Mr. Dalton in Chambers) ; and, if sufficiently connected 
 with the same tranaaotion as that which is the subject of the plaintiff's claim, 
 the counter-claim may be sufficient to entitle the defendant to defend, even 
 wiiere set up as a defence to a li(|uidated claim, as on a bill of exciiange : per 
 L. J. Thesiger in Awilo- Italian Bank v. Wvlh, 38 L. T. X. S. 107. S.-> where 
 the defendant has a valid set-off greater than the plaintiff's claim : (Jruom v. 
 lUitlihone, 41 L. T. X. S. 501 ; and see Bowijear v. I'awson, t^. K D. 540 ; 
 (Iwenment Co. v. Dempsey, 50 L. J. Q. B. l'J9. 
 
 '^'^I^^^^^^Rmh^^!^^'" 
 
 s fc l>t:>t'aJM 
 
.;fi' . 
 
 680 
 
 Kale 739. 
 
 Claim (or 
 indemnity 
 not a de- 
 fence. 
 
 Leave to 
 sign judg- 
 ment, 
 
 Leave to 
 defend 
 uncondi- 
 tionally. 
 
 JUDGMENT. 
 
 A claim for inrlcmnitv agaiuMt a third ])artv will not suffice ; Tlionn v. .SVy7 
 W. X. 187.S, 215 ; (lirmiin Bunk v. Schmiilt, W. N. 187(1, Id ; 1 (Jliarl. Cli. Cu! 
 
 03 ; nor a promise tr) >five time without oonHiderution : Woohtoii v, Baintt 
 W. X. lH7ti, 74 ; 2 Cliarl. CIi. Ca. 21. 
 
 Ah to what are meritoriouH defences, see note to Ride 705. 
 
 .rud^inent was ordered to lie sifrnt^d where it was stati-d that the defendant 
 was at sea on his way to join his regiment, and that lie had lieeii served with 
 the writ the day before leaving Kngliind : Anioi, W. X. 1H75, 2(10 ; 1 Cluirl. Ch. 
 Ca. 40. That defendant was served in New York, and iiad not time to instruct 
 his solicitors, was considered sufficient reason ft)r refusing an order : Aimn, 
 60 L. 'J', .four. 213 ; 2 Charl. Ch. Ca. 18. 
 
 The orders which may be madeuixin the a|i|)lication are : 
 
 (1) Ledvc III //if /iliiiiiliji' til nitrr Jinnl jiiilijiiimt .• -This order ought not to he 
 niad(! save where the case is free from doubt : Itmi v. liurbr, 48 L. ,1., Kx. .")()!l; 
 
 4 E.s. 1). 27!t; Tliiiiiip.sini v. Minshnll, 28 W. I{. 220. It will be made if 
 defendant does not appear, or files no affidavit: W. X. 1870, 12; or only an 
 affidavit stating that thent is a good defence, witiiout statmg what it is: 
 
 Wall ill i//iird v. Miitiuil Suriiii/, nii//m ; though an op])<>rtunity of tiling a better 
 affidavit niay be given : J'nsrul v. Stmn; .lufiru : or if no fairly argualile 
 defence be shewn : Aiii/ln-flii/iuii liiinh v. W'l-lh, ;i8 L. T. X\ S. I!t7; 
 Thiivne v. Sei-I, W. X. 1878, 215 ; Aikhi, W. X. 1870, 23 ; 2 Cliarl. Cli. Ca. 
 18; Kiid Asmm, I'ti:, v. /Im/ir, W. N. 1875, 238; 1 Charl. Ch. Ca. 4«. 
 Judgment was ordered to be signed where th«> only defence was tli.at the 
 defendant had commenced proceedings in IJankruptciy : Aiimi, W. X. IH"."), 
 220: \y. X. 187(), 23; '■lifm'il v. Jtiu/ilit. \y. N. 1884, 40. .S.. where in 
 an action against two defendants, one admitted the delit and let jiidff- 
 nient go by default, and the other only depo.sed that he was willing to 
 pay his share, and that his co-defend.int was acting in collusion with the plain- 
 tiff : Ku.st A.s.mm ( 'niniiniii/ v. Burin; W. N. 1875, 238. Execution was stayed 
 to enable defendant to appeal, in Aiiiiln-Jtaliiiii lUnihw Wclh, 38 L. T. N. S. 
 197. An order directing payment by a day namerl, otherwise judgment to lie 
 signed, need not be served before signing judgment on default of payment: 
 llojitiiii V. Biilieiisiiii, 23 tj. 15. D. 12(J; W. N. 1884, 77 ; 28 Sol. .lour. 375. 
 
 Where the action was on an untaxed bill of costs delivered within a year, 
 the order made was for taxation and judgment for the amount certified: 
 Lark-ill <0 Co. v. McJiirnn'i/, 10 L. R. Ir. 240; see also Smith \. Ki(mmlen,tl 
 Q. B. D. 10. 
 
 (2) Leave to defend uiieii)iditiiinall,i/:—T\\\)i will be tlut order where the affi- 
 davit shows what the defence is, and gives rea.son for thinking that it is sulwtan- 
 tial, and may bo sustained by evidence : Itininailes v. J/eKi/nitu, 1 <J. I'l. I). 4I(i. 
 Where the defendant was a snrety, and had not acknowledged his in(lel)te<l- 
 ueas, and there was nothing to show that the defence was merely for delay, lie 
 was h(!ld entitled to put the plaintiff to proof of his claim, and was admitted 
 to defend : Llui/d's Biinkini/ ( 'u. v. Oi/le, 1 Ex. D. 202. 
 
 So also where a set-off was .shewn exceeding the jdaintiff's claini : (/room v. 
 Bathlione, 41 L. T. N. S. 501 ; O.ninee v. C. I'. B., No. 2, under /tnlr 0,52; but 
 see Brameli ite'n eaiie, 40 L. T. N. S. 0.52; and wliere it was alleged that the 
 plaintiff's affidavit was untrue, and the defence was stated to lie that tiie ser- 
 vices f(ir which the jjlaintiff claimed remuneration had never been ])erfnrnied : 
 Ameuni/ v. .Vamtli \azim of Benijal, W. N. 1875, 23!) ; 1 C^liarl. Ch. Ca. 47 : and 
 where the plaintiff in an action on a jiromissory note alleged, but did not state 
 in his affidavit, that he was a luiul Jide luilder for value, and the defendant 
 swore to the defence that the bill was drawn in fraud of him, the defendant 
 was held entitled to defend unconditionally as the onus of proof was on the 
 
 Elaintiff that he wiis a Innin tide holder for value: Fnller v. A le.amdir, il 
 . T. N. S. 443; .52 L. .T. Q. B. 103; A/dlard v. Jladdelei/, W. X. 1884, %\ 
 28 Sol. Jour. 412, 427. 
 
 Indorsers who denied receijit of notice of dishonour, although the protest 
 was produced, were held entitled to have the matter tried : Ontario rnnks. 
 Biirk, 10 P. R. 501 ; see also ItwjhKon v. (limkm, 10 P. R. 505. 
 
LEAVE TO SION .fUDOMENT. 
 
 631 
 
 (3) Luivr ti^ ilffctui oil ptif/mi'nt of mniii'!/ into (hurt within ii rfimonnhlr time. Rule 739. 
 <)/• OK itthrr trrmii:—\W\wv*\ it is iii>t clciir tluit tluTc is a dc^ffMicc, b\it tlio oii terms. 
 (icfcnilivnt slii'WH Huoh a Htate of facts as leads to tile infen^nct' that at thii trial 
 he iiiivy 111' iil)le to estal>lisli a Kood dcfi'iici^ : Hiiii v. Biirkir, 4 V]\. I). 2"!). 
 
 Ill .l/M/(, (iO L. T. .T<)ur.,S,"); 1 Cliarl. Cli. Ca, 4;"», <.2iiain, .F., f?avn leave 
 U> (Icfi'iiil wliere a |>ro]t('r couuter-clailii was tlio dfffiice, Init contiiiod tlu< 
 defciici' to tlic I'omitcr-L'laini. 
 
 In Rithirtu V. <luint, W. N. 1S7('>, 10; 1 Cliarl. Cli. Ca. 08, jiidf,'iiH'nt was 
 ()r(U'n'<l to he sijfncil, iinli'ss the defendant paid the money into Court, where 
 till' (Icfciice was a counter-claim for costs in a suit in Chancery, in wiiich an 
 order for costs had not been obtained. 
 
 See also llrrmttn lUiuk v. Sclimiilt, W. N. 187(), 10, and as to the amount to •, 
 
 lHM>iii(l: llriniliil Jiiink v. Fit-i/eni/il, W. N. 18K0, 11!». 
 
 Where the defence to an action by the holder of a bill of exehanj^e was sworn 
 til lie that the acceptance was obtained liy fraud, to which the plaintiff re|ilied 
 tiiiit lie took the bill for value without notice of any fraud, it was held reason- 
 alile to a'wc ilefendant leave to defend upon payment into Court of tlio amount 
 (if the hill : nnmkx v. Aii/mrr, 73 L. T. .Tour. 80. 
 
 Ill an action by a company on a call, a clerk of the company swore that notice 
 (if alldtiiK^iit' was duly posted to defendant. Defendant swore that the letter 
 was never received, it was held that this constituted no defence: see I/iiiisi: 
 hi'lil Fire /iisuriini'f ('oiiiixuin v. Wntut, 4 Kx. 1). 21(i ; but the defendant was 
 t-ntitled to cross-examine the clerk who swore to the posting, and leavi^ waH 
 tlicrefdic ffiven to defend on payment into Court: Cor/it I'lu-a (laid Minliit/ 
 finniinii/i v. /■'n.stiii'i/i/r, 30 W. R. 880. 
 
 Where a itrliiid fticii- case is made out on notes signed by a married woman, 
 iind the .Fudge not lieing satisfied that there was ground for a defence that the 
 Imsiness was her husband's, and she only acted as his agent, and the defendant 
 deelincil to ]iay money into Court, leave to sign judgment was granted : Ndsaii 
 V. Thnnu'i; ll'Ont. .\iii». tiKJ. 
 
 Where the defendant shews what his defence is, and his reasons for thinking 
 it sulistimtial, and it ajipears to he fairly in dispute, he ought not to be 
 iii'dered to bring money into Court : I{iinn(ir/fn v. Mc^'iuitii, 1 Q. B. 1). 41(i ; 
 DM,\. Lrmnii, 12 I'. H. (i4. 
 
 Where ill a claim for payment (<f sums of money, the defence set u[i is 
 aiieniiil and contradiction of the accounts on which th(> claim is foinided, it is 
 fi'i-iinedus to make an order under this Ihilf refusing leave to defend, excei)t 
 iijien the condition of the dttfendant jiayiiig into Court a definite sum within a 
 certain time, and tliat, unless he does so, judgment shall be signed against 
 iiim. This is especially the case where there are mortgages, aiifl the 
 crwUtiir has been in ))ossession as mortgagee : Wtillimiford v. Mntiiid Hocidu, .') 
 .\l)l). Gas. (iSf). 
 
 .\ defeiidant is not entitled as of riglit to defend uptni iiaying money in t(,> 
 Court, witliout an affidavit of merits : Crump v. CavcndiHli, liKx. D. 211. 
 
 A defendant wiio has paid numey into Court has been held entitled to 
 liave it paid out to him if succi^ssful in the action, no.twitlistanding that a 
 notice of appeal ha.s been given : Yorkxhirc Bankitin Co. v. Bvalxon, 4 
 C. P. 1). 213. 
 
 (4) Lvtire to di-fciul its tn part on tcrtnx, iniil nx to the rcxidiiv iincoiidi' 
 limmUit ~\\\w\\' the defendant's affidavit admits jiart of the claim to be due' 
 and discloses a defence iip(m the merits as to the residue. There is no power 
 to gi-ant leave to defend as to part of the claim only, on condition of pay- 
 ment of tlu' amount as to which there is no defence. The proper judgment is, 
 that the jilaintiff have judgment for the amount admitted ; the defendant to 
 Iw at liliertv to defend as to the residue : Dfiniia v. Sci/mour, 4 Ex. D. 80, and 
 see /^'/-■741. 
 
 (:>) DixmiHttid of the motion. — The .simple dismissal of the plaintiff's motion Effect of 
 will Ije wiuivalent to leave to defend : Muniate Pier, etc., Co. v. Perry, W. N. clisraiseal 
 W\ 52 ; 2 ( Jharl. Ch. Ca. lit ; and, if the order giving him leave to defend did "^ motion. 
 nut luune a time, the defendant was obliged to (teliver his defence within eight 
 
V-l 
 
 > '?!;■ 
 
 682 
 
 JUDGMENT. 
 
 Rnle 7iO. 
 
 % 
 
 ludginont 
 for part. 
 
 Forms of 
 orderB, etc 
 
 Appeal. 
 
 (layH, iiiuler original Rule 1(12, otiitTwiKc j\uljfiiicnt iiii^fiit he iilitiiincd liy 
 (lefiuilt, even thimgli no Mtatcmcnt of claim was delivered : Atkiiisw Tajilar, 
 W. N. IH'ti, 11 ; Afdt'f/iitr I'iir, ilr., Cd. v. I'lrni, Hiiimi ; /{iir v. Lumifdril \\\ 
 L. R.Ir. lOH; h't/irtoHv. Amlrrxon, W. N. 1HH4, iKt; 'JH Sol .lour. '.K,. "Tlii^iH 
 not now tiie practice in Ontario, as ori^final Uiilr KiU iia.>< Heen al)r()>,'iiti'il ; and 
 where the motion in di.sniiHse(l the plaintiff must proceed v.itli the act inn in the 
 iiHual way, l)y dcliverinK a statement of claim. 
 
 The dismissal of a motion is held in Kmrland to Ite no l)ar to a fresh apiilica- 
 tion on fresii materials : WiiiiKtuff v. Jnrnlxiirit:, W. X. 1HH4, 17. Hut sir 
 Tn iich V. Mulcaliii, Kii/ini, p. (128. 
 
 Where a good defence is not shewn to the whole of tiie plaintiff's I'laiin, 
 judgment may lie signed under this lin/r for so mucii ot the eliiim as is 
 not answered : set^ Aiinii, W. N. 187(1, 5;{ ; 2 (Miarl. ('Ii. Cii. 22; lliunmr \. 
 t'liijht, H,-) Ii. T. N. W. 127 ; W. N. 187(1, 04 ; 2 Charl. (,'h, ( 'a. 2;$. On appial, 
 iiowever, in tiie last case, H(l L. T. X. S. 27!>, it was eonsideied thiit the facts 
 set out in the pleadings did not support tiie claim in respect of wjiicli tiin 
 plaintiff sougiit to sign judgment, and the order was tlieiefore refused. 
 
 For forms of orders inider this Huh; see Appendix, Forms, Xos. 12(i.l2<i. 
 For forms of judgment after order and default in complying witii the cdii- 
 ditions impo ed, see Ai)p. Forms, Nom. 175, 17(i : and wliere leave tn (iefciiil 
 refused, App. Form, Xo. 1(17. 
 
 Wliere leave to defend lias lieen given, an ap|M'al against tlie discrttinii 
 thus exercised will hardly ever be entertained : I'dintimnni v. Ciintiiiin, \\, N, 
 1880, 10',). 
 
 How defen- 740« The defendant may shew cause against such appli- 
 show cause, cation hy affidavit, or {a) by offering to bring into Court 
 the sum indorsed on the writ. In such affidavit ho shall 
 state whether the defence he alleges goes to tlie whole or to 
 part only, and if so, to what part, of the plaintiff's claim. 
 And the Judge may, if he thinks fit, order the defendant [h) 
 to attend and be examined upon oath ; or to produce any 
 books or documents or copies of or extracts therefrom. 
 J. A. Rule 82. 
 
 Identical with the Eng. R. 187"), (). 14, r. .3 (1883, R. 117) exceiit that 
 the latter expre.ssly provides at (n) "except in actions fur the recovery (if 
 land." The effect'of the Oiit. Hide must be the same ; at (h) the Phig. R. has 
 " or in the case of a corporation, any officer thereof." 
 
 A defendant i.s not entitled as of right to defend ujwn paying money into 
 Court without an affidavit of merits : Crump v. C'lti'endisli, 5 hi\. I). 211. 
 
 The affidavit must be made by the defendant himself, wlier(> he is a jiersoii 
 who can make an affida.'it : Mairhiad v. iJircct U. S. C'alife Co., 27 ^\'. K. "'•!<; 
 Shclford V. ImuUi, etc., Mi/. Co., 4 Ex. I). 317. Although a defendant, a c(ir|Kir- 
 ation cannot make an affidavit, the Hii/e nevertheless applies, and the corpor- 
 ation must show cause under the words " or otherwise " in Ride 73!), i,e., by sonie 
 other meaiLs than the affidavit of the defendant : lb. The defendant's affidavit 
 must disclose the defence : Panad v. Stove, y. (12!>. A mere affidavit that he has 
 a goixl defence is not sufficient: per C^uain, .T., Anov, 1 Charl. Cli. Ca. 48; 
 W. N. 1875, 24(1, 250. The affidavit will not be insufficient merely because it 
 contains only hearsay evidence ; Harrison, v. liuttenheiin, 2(5 W. R. 3(12. 
 
 The apjilication may lie adjourned, if necessary, for better particulars of the 
 plaintiff^s claim : A»ton v. Uurivitz, W. N. 1870,' 1J»4. In Anon, (10 L. T. Juur. 
 17(5 ; 1 Charl. Ch. Ca. .52, on an apjjeal from a Master who had ordered iiioiiey 
 into Court, a fresh affidavit not used before the Master being read, leave to 
 defend unconditionally was given. 
 
LEAVE TO SIGN JUIXKMHNT. 
 
 63$ 
 
 The .(iidfrc limy, in lii^ <liHcr»(ti(iii, iiIIdw the plaintitf to t\\v attidavitH in ri'ply Rules 
 to the ilcft'iKlantV attidavit: yAo'M v. .S'/»/'cr, 1 (!. I'. I). 7V.t; tliis cast' wan not 741-744. 
 appriivcil ill yiii/li I'niiriil Wmj'jini Cn. v. Tin N. Wtthn iVit;iiii)ii i'lt., H!l 
 L T, N. ''^- 'i->*> 1'"'^ '"•'■'^ '"'•"" foliow''"! ill ^'iirin v. (rn/ii, l.S Cli. I). 174. Tlid 
 Kliiiu'of an alfiiavit in rt'plv, tuulcr tiiix Hn/i; is liowcvcr not a niattor of right : 
 Itnlhrriun V. PrirM, •!!» L. .1'. C. p. 104 ; VV. N. IHTit, H»(». 
 
 741. In any case if it appears that the defence set np by "'"fencu as 
 the (k't'ciiilant appUes only to a part of the phiintit1"s (''"ini, ^" '"" ' 
 or that any part of his chiiin is admitted to be d , the 
 plaiutilf shall have '"udgnient forthwith for such part of his 
 claim as the defence does not apply to, o'- as is admitted to 
 be due, t ,'\ject to such terms, if any, as to suspending exe- 
 cution, or the payment of any amount levied or any part 
 tliereof into Court by the sheriff, the taxation of costs, or 
 otherwise as the Judge may think fit. And the defendant 
 may be allowed to defend as to the residue of the plaintiti"H 
 claim. J. A. Uule 83. 
 
 The Kuti. I{. 1S75, (). 14, r. 4 (IHS:?, H. IIS), Ims not tiic wohIh " in any v.hm' " 
 at till' l)i'(,'iiiniii(,'- 'i'"' '•'i>' t'"' wohIh " tiic amount "' instead of tlic wonls "any 
 amiuiiit." Tlic two Hides otlierwise eoiTespond. See tiie Rule apjilied in 
 Hdimn- V. /•'//-////, 24 \V. K. 34tl ; 3(1 L. T. N. S. -JT'X 
 
 See udtes to Jiulf 73!t. 
 
 74*2, If it appears to the Judge that any defendant I'f^s yy,ii'','iofor' 
 a goo(i defence to the action, or ought to be permitted todants. 
 defend the action, and that any other defendant has not 
 such defence and ought not to be permitted to defend, the 
 former may be permitted to defend, and the plaintiff shall 
 be entitled to enter final judgment against the latter, and 
 may issue execution upon such judgment without prejudice 
 to his right to proceed with his action against the former. 
 J. A. Eule 84. 
 
 This Ri(h curresi.onds witli the Eng. R. 1875, O. 14, r. 5 (1S83, K. 11!»). 
 See notes to Rtih 73!(. 
 
 743. Leave to defend mav be given unconditionally, or Leave to 
 
 ,,. ,. . .-. " -L / \ ij • defend may 
 
 sub]ect to such terms as to giving security, (^0 or otherwise, be absolute 
 as the Court or Judge may think fit. J. A. Rule 85. dit?onai. 
 
 Identical with the Eng. R. 1870, O. 14, r. (i. That of 1883, R. 120, inserts 
 «t (rt) "or time or mode of trial (in cases whieli under these Rules may be tried 
 without a jury)." 
 
 See notes to /^</<' 739. 
 
 744. Where at any time after the writ of summons has>i^jti^o"f"r 
 been issued it is made to appear to the Court or a Judge on bvieavJ 
 mexpaitc application that it will be conducive to the ends vice of writ, 
 of justice .0 permit a notice of motion for a judgment to be 
 forthwith served, the Court or Judge may order the same 
 
w"^ 
 
 €34 
 
 JUDGMENT. 
 
 m^ 
 
 Hole 744. accordingly ; and when such permission is granted, the 
 Court or Judge is to give directions, as to the service of the 
 notice of motion and filing of the affidavits, as may be 
 expedient. J. A. Kule 324. 
 
 Chy. fx. O. 271 was to the .same effect. There is no corresnondinir 
 English Rule. 
 
 The Master or a Judge in Chambers may grant leave under this clause to 
 make the motion, but under the next clause the motion itself must l)e matle in 
 Court : MorriKon v. 2'ii)//or, 4() U. C. t^. B. 4!)2. Tiie rejiort of Lucas v, Fnutr, 
 !( P. R. 31(1, is ernmeous. The motion was before Osier, .r., in Court. 
 
 Where an order was erroneously made in Chambers instead of in Court, it 
 was held that advantage of the irregularit,v must be taken by a sunnnary motion 
 to set aside the judgment, and that its invalidity could not be set up in an 
 action founded upon it : Martin v. Evana, (5 ();U. 238. 
 
 (rt) Upon hearing the motion the Court may grant the 
 apphcation on such terms and conditions as may be 
 thought proper, or may refuse the same ; or instead of 
 either granting or refusing the same, may give such direc- 
 tions for the examination of either parties or witnesses, or 
 for the making of further inquiries, or with respect to the 
 further prosecution of the suit, as the circumstances of the 
 case may require, and upon such terms as to costs as the 
 Court thinks right. J. A. Rule 542. 
 
 . . The Chy. O. 272 was to 'iie same effect. 
 
 In Federal Bunk v. I tope, tJ Out. 20!(, the Court refused to decide on amotion 
 inider this I'ule whether a defence set up wis a valid one, it not Ix'ing clearly 
 bad. 
 
 Where the plaintiff applied inider tlie original Rule before tlie t'tiu' for 
 ai)pearance, and the defendant had acted frauduleutl^v in disposing of sonif 
 jiroperty, and in otherwise embarrassing his creditors, it wasiield a proper case 
 «,s' riijdiiisl the defeiiihint for the exercise of the discretion of tlie Ciuu't ; liuttliat 
 the Rule could not lie used to give an undue iidvantage against other crwlitors. 
 Therefore, where other h^nil Jiile creditors wt're suing, but could not inordinary 
 course get ext>cution till after tlit^ plaintiff, tiiough tliey liad (tomniciiccil iH'forc 
 him, an order was made on terms that tiie plaintiff should share /;"^' /"'■«" with 
 other judgment creditors who should i>lace executions in the Sheriff's luvnds 
 within eighteen days from the service of the plaintiff's writ, in ease of ;ui iusutti- 
 ciencyof assets: Kiuhieh v. Mnrtau, !t P. R. 3« ; 1 C. L. T. (Hid. Since Thf 
 . .'• , Crei/ltiirfi' Relief .{et a, jirovision of this nature in the judgment for protection 
 
 of other creditors is unnecessary. 
 
 After the above decision some of tiie Judges exjiressed doubts as to tliewwn' 
 to impose such conditions, imder the terms of the original liule, and acc>irdingly 
 Rule .'542, consolidated in the al)ove Riih\ was i)ass(!d to mak(^ tlie jiower clear. 
 See also 20 C. L. J. 77. 
 
 It was also held that there was no power to ami-nd an order granted, without 
 conni-almenc or fraud, and not containing such conditions : /Inrrisuii v. Leiieli, 
 20 C. L. J. 124; 4 C. L. T. 18."). 
 
 Special circumstances necessitating a hearing out of the onlinary course inui<t 
 be shewn : Franeis v. Fnuiein, '.) P. 11. 2()!). Se 
 desire to get a speedy judgnu 
 Luai.s V. Friiser, P." R. 31!>. 
 
 Sometliing bevond the plaintiff's 
 : Kiulocli V. Slnrln,,, '.I P. R. 38 ; 
 
 Where the affidavits filed for and against the motion were conHieting, tlic 
 action was ordered to be entered for trial ; Fniiiei.i v. Frtuieis, !l 1'. H. L"J!t. 
 
APPLICATION FOR ACCOUNT. 
 
 5. Application for Account. 
 
 635 
 
 Rule 745. 
 
 account. 
 
 745. In default of appearance to a writ indorsed under Action for 
 Eule 247, and after appearance [in a case in which the pre- '^'^*'°"" • 
 ceding Rules do not entitle the plaintiff to a judgment or 
 order on prajcipe or otherwise, then] unless the defendant, 
 by affidavit or otherwise, satisfies the Court or a Judge that 
 there is some preliminary question to be tried, an order for 
 the account claimed, with all directions formerly usual in 
 the Court of Chancery in similar cases, shall be forthwith 
 made. J. A. Rule 86. 
 
 Same as the Eng. R. ISTS, (). 15, r. 1, (1883 R. 121) except that the words in 
 brackets are new. 
 
 Riik2i7 provides for the indorsement of a claim for an account in all cases of Indorse- 
 ordinary account, such as a partnershi)), or executorwhi)), or ordinary trust "lent of 
 account, where the plaintiff desires to have an account taken in the first |''"'"" ''"" 
 instance. The present I{ii>f provides f(>r two cases ; first, default of appear- 
 ance ; in which case the order will be made as of riifht ; secondly, apjjearance ; 
 in which case the order is to be mad" unless the defendant shows that there is 
 some question wliicii ought to be tried first. 
 
 A claim against an executor for an acoount on the footing of wilful default, is 
 not an onlina;y account within /{ii/e 247, and therefore does not come within 
 the present liidi' : I'c Boircii, Bennett v. Boieeti, 20 V\\. 1). 538. 
 
 An order for account may be made in any I)ivi,sion of the High Court : Vtn'k 
 v.Stoirers, W. N. 1883, 174. 
 
 Before taking proceedings under this Hn/e in defaidt of a|)i)earance the plain- 
 tiff must file an affidavit of .service, or of notice in lieu of service : see Rn/r 704. 
 
 The Riili- applies not merely where the j)laintiff claims an account from defen- 
 dant, but also wiiei-e the plaintiff will him.self be the accounting party : 
 Miil'M)/ v. Miilmy, 21 L. R. Ir. !U. 
 
 Under the corresponding English Ride, where tiie account claimed is an 
 executorship (U' administration account, the order made is the same as the usual 
 administration decree fonnerly made in Chancery : se.' Hell v. L(nre, W. N. 
 1875,220; ICharl. Ch. Ca. oC'; and I'mtl v. Ilnn'ni, cited in Dan. Forms, 3rd 
 ed., 20(). An account of the amount due in .t foreclosure action may also in 
 F.ngland be obtained : <i((tti v. Weliste,; 12 Ch. 1). 771 ; sft' Smith v. AnvV.v, 28 
 Ch. D, twO ; and in sucli cases any matter re(piiretl on further consideratitm as 
 to costs may be |)roved by affidavit: Beinie;/ v. Elllutt, VV. N. 1880. !l!». An 
 affidavit not before the Chief Clerk was allowed to be read on further direc- 
 tions, there having been no trial ; Re Miehin-I, De.isnn v. Leirhi, 52 
 L. T N. H. ()()!). In Ontario it is not customary to make orders for an account 
 under this Rule, in mortgage actions. 
 
 The lienefit of tlie I'nle is only tct be given where a writ is indorsed under 
 R\ik 247 with a claim to liavi! an account taken. Tlie proviso to that Rule 
 states that the Hide does not apply to proceedings under Rules <)(;5 to !»88, 
 I.''., to ])n)cee(liiigs taken for administration in a summary way icillidiit writ, in 
 which case, of courie, there could be no indorsement. It will also not apjily to 
 cases of foreclosure, sale, and redemi)tion, where a judgment may be obtained 
 iin ;im (•(>■, or oii motion in Chambers: Ridei^ 717, 71H, 72(i. A form of 
 indorsement claiming an account in iulminis'ra- ,n actions is given in the 
 ^I'l^'wijx, No. U (", and /*). It was pointed out in Cntti v. Wehslee, 12 
 Ch. p. "71, tliiit tlie fonn of judgment given in Seton, 4tli ed., p. 8, contain- 
 ing the fuHowiiig words ; "a .Fudge not rec|uiring any trial of this action other 
 than the hearing of thi.saii|)lieation " — may not always be approi)riate, and they 
 are not to lie used indiscriminately, so as to prejudice any issue that may be, 
 •ai'ed by the subsequent pleadings. 
 
^'■'^^■"■'■■■■■Pi 
 
 636 
 
 Rules 
 746, 747. 
 
 Applicft- 
 tion to be 
 ou noticu. 
 
 i ::,^,-K 
 
 Orders for 
 admiuis- 
 tratioii, 
 partition 
 or sale. 
 
 JUDGMENT. 
 
 The provisions of the Rules 409, 520, (!48, for enforcing orders for discovery cr 
 inspection of documents, are not applicable to the order for accounts iinderthis 
 Rid,-: I' ike V Keene, 35 L. T. N. S. 341 ; 24 W.R. 322. 
 
 Only common accounts will be directed to be taken, not accounts and 
 inquiries the right to which depends upon the plaintiff making a case for them 
 at the trial : Re (Jyhon, Allen v. Tiii/lor, 2!1 Ch. D. 834. 
 
 In a redemption action an order under the corresponding Knglisli Rule df 
 1883 (R. 121), should be for an account and incjuiries only, and must iidt 
 contain further directions equivalent to a general redemption decree : (Voivrv 
 WiHx ,{• We.it, etc., ,V-«;., 32 W. R. 805 ; 5<) L. T. N. S. 382; 53 L. .1. Chy. dii. 
 
 This Rule is not intended t(» enable parties uiKin a sunnnons to obtain what 
 is t-quii'alent to a decree, l)ut merely to take accounts upcni wliich the Court can 
 make a decree: ,S". ('. W. N. 1884,' 110; see also Borth trick v. ItaitufuriL -'S 
 Ch. 1). 70. 
 
 The i)laintiff cannot apply for the determinatic'U of ((uestions at issui', 
 except wiiere the Rules permit sucli applications : .V. <'. 54 Ii. J. Ciiy. SCO. 
 
 T40. An application for such order as mentioned in the 
 last preceding Rule shall be made on notice, {a) and be sup- 
 ported by an affidavit filed on behalf of the plaintiti', stating 
 concisely the grounds of his claiLu to an account. The 
 application may be made at any time after the time for 
 entering an appearance has expired. J. A. Eule 87. 
 
 ('() Instead of "on notice" the Kng. R. 1875, O. 15, r. 2(188.'?, R. 122), has 
 the words "by summons." Tlie Rule.i nw otherwise identical. Where the 
 defendant lias not appeared, besides tlie affidavit mentioned in this /Jc/i, the 
 ])laintitf is required by /{ule 304 to tile an affidavit of service. In cases where 
 an order allowing service is necessary ; (see /iule 274), the allowance slumld, 
 doubtless, also be proved. If an order has not been obtained, tlie iippliratvm 
 to allow the service and for an order under this Rule, might be conveniently 
 made at the .same time. The aiiplication will be made in Clianibers, 
 
 A form of summons from which a notice of motion may be frained will lie 
 found in Danl. Forms (3rd ed.) 20(1. 
 
 It would seem that a statement of claim should, in general, b(i delivered 
 before a motion is made under this Rule. In Re Huiku-ell, J)ariil \. Dultou, 
 W. N. 1870, 80, in an administrati(m action, the moti'.in was directed to stand 
 over until a statement of claim was delivered St^e also (''/•(/// \ . VoUiy, ii 
 W. R. 240. 
 
 '747. But the preceding two Rules are not to prevent 
 orders for the administration of the estate real or personal 
 of a deceased person, or for the partition or sale of an 
 estate from being obtained on motion without any previous 
 notice or other preliminary proceeding, and in the manner 
 provided for by the Rules 965 to 991 in that behalf. J. A. 
 Rule 88. 
 
 See note to Rule 745, supra. 
 
 All hough Rule 745 should be considered to apjily iii some cases of adminis- 
 tration and partition, neverthele.ss a .judgment or order will in Mich esses lie 
 most aiijiroiiriately oVitained under Rules 005, et seq. 
 
MOTION FOR JUDGMENT. 
 
 6. Motion for Judgment. 
 
 637 
 
 Rules 
 74S, 749. 
 
 748. Unless it is elsewhere provided that judgment How judg- 
 may be obtained in any other manner, the judgment of the taiiied. 
 Court shall be obtained by motion for judgment. J. A. 
 Eule 315. 
 
 Same as the Eng. R. 1875, (). 40, r. 1 (1883, R. r^). 
 
 The "Court " in this iJ«/f' ineiuis the "High Court of .luatice," whether as 
 distiiisruished from its Divisions or not: Wc/llxiiik v. (homier, 12 P. R. 354 ; 
 usually the motion will l>e made before a single .Fudge : see sec. (il of the Act, 
 anri Diurnjuirt v. Ward, 47 L. T. N. H. .148. 
 
 /;i(/r.-'705(/ .s"/. |)rovi(le for the ))laintitf's signing final judgment by default 
 of ai>|)earance, and Ruhn IV.) d kk/. for the like judgment uptm default of plead- 
 ing without any motion. 
 
 Hull 718 provides for a judgment or ordt'r o\\ prwcipe in cases of foreclosure, 
 sale or rt'(lenii>tion. 
 
 Rnhf Wi and <')88 provide for judgment on a trial, without a motion for 
 judgiueiit afterwards. 
 
 Itulf'HV^ provides for a like judgment where, under the Act or these Rules, 
 or otiiei'wise, it is provided that judgment may be entered or signed upon th« 
 tiling of an affidavit or pnxhiction of a document. 
 
 RuI(»Wm, Hill provide for obtaining judgments in Chambers for administra- 
 tion (;:• i>artition. 
 
 Motions for judgment may be necessary in other cases to obtain the proper 
 relief in case of defendant's default in ap[)earing or pleading : see Ride 727 ; 
 or where the .ludge at the trial of the action has not ordered judgment to be 
 entered; see /'«/< (i82 .and WcUlmnkx v. (hiiij(r,\2V. R. 3.54; or different issues 
 or questions have been determined in different ways, and at different times, 
 where a motion for judgment on the result niaj' thus become necessary; see 
 Ruin 72il, 753 ; see also Rnlen 73!), 745. 
 
 Before setting a case down on motion for judgment, the plaintiff must in 
 general have deli\ ered a statement of claim, or the notice authorized in lieu 
 thereof; see .l/()iA)/i v. Mtlcdif, 4<) L. J. Chy. 584; W. N. 1877,142; and Rule 
 M ; Huntir v. Wdrorkunn, it P. R. 305, and notes to Rit/e 'M)» p. 3!)!». It would 
 not seem to l)e recpiired in cases under Rule 20!) ; see nott?s to that Rule. 
 
 Two clear days' notice under JOtle 470 is sufficient : Martens v. Rirnei/, 10 
 P. R. 3()H; see Rou/idl v. FavKons, W. N. 1870, (il. 
 
 By direction of the Judges of the Chancery Division, the Clerk oi 
 Records ami Writs is required in future to see that f>ll preli'uinary i)roceedings 
 are regular, before setting a cause down, and to classify motions f^cr judgment 
 into defended and undefentled ones. Solicittirs will therefore recpiire, in setting 
 down cases for judgment for default of apiu-arance or pleading (1) to file with 
 tlie Clerk of Records and Writs the writ of summons, affidavit of service of 
 writ, and statement of claim, affidavit of non-appearance or no defence, and 
 IiriKif of the allowance of the service of the writ, when that is necessary under 
 hull' 271 ; (2) a certificate of state of cause, where the action is pending in 
 an outer county. 
 
 N'o motion for judgment is necessary in an action in the High Court, after a 
 trial or assessment in a County Court": l^cutt v. Freeman, 2 il B. D. 177. 
 
 It seems that in Kngland, as a nnitter of form, further directions cannot be 
 reserved; hut tiie same object is accomplished by declaring that the flirther 
 eoiiHuleration of tli(> action is adjourned ; Benmit v. Moore, i Ch. D. (i!l2 ; 
 
 'r'«"''''i ^'' ''*'""'"'' '^ ^''' ^*- ^^ ' BniKsiiKjton v. Cusmns, 24 W. R. 881. This 
 flimculty would seem not to exist in practice here. 
 
 7M, At the trial of any action no party shall be entitled N" j"dg- 
 to jvidgtuent on the grounds of his pleading being true, if "m" plead- 
 
638 
 
 Rules 
 
 760, 761. 
 
 ingB 
 merely. 
 
 If plaintiff 
 was en- 
 titled at 
 service of 
 writ, but 
 not after- 
 wards. 
 
 Notice of 
 motion for 
 judgment. 
 
 JUDGMENT. 
 
 the facts proved are not sufficient in point of law to entitle 
 him to judgment. 44 V. c. 5, s. 44. 
 
 In the Court of Chancery tiie Judges at tlie liearing always disposed of botli 
 questions of fact and law. He decided not only whether the i)laintiff had 
 proved the trutli of his ca.se, or the defendant the truth of his defence ; butal<o 
 whether the claim or the defeiict; was a valid one. 
 
 At Common Law it was otherwise. The Judge at JV/,s/ J'rius was a comniis- 
 si(jner to try the issues of fact joined between tiie parties as appearing ii|Km 
 the record, and to direct a verdict for jilaintiff or defendant accordingly, He 
 hod i)ower to decide questions of law arising incidentally in the course of the 
 trial of the issues of fact, and in many other ways to deal with matters of law^ 
 but the broad question whether the plaintiff's claim, assuming his facts proved, 
 was good in law, or whether the defendant's defence, if true in fact, was gixd 
 in law, it was not within his |)rovince to determine. Tiiose questions could Iw 
 disi)o.sed of by th ■ Court by demurrer, or brought liefore the Court in hnnenhev 
 trial by motion for judgment iion ohxtautf rcicdieto, and in other ways ; but nut 
 before a .fudge at the trial. 
 
 * Ira II v. Stait, 11 Q. B. D. 6(58, illustrates this Rule. That was an action f(ir 
 wrongful distress by seizure of goods off the premises after the ex])iration of tlie 
 tenancy, and the tenant had given up possession. The defence set up was 
 proved, viz. : that they had been fraudulently removed to jirevent distres.s for 
 rent ; but nevertheless judgment was directed to be entered for the plaintiff 
 for Is. 
 
 See also Meiiee v. Kane, 14 Ont. 22(), where this Ridr, was held not tolje 
 applicable. In that case the statement of claim had been held to be sufficient 
 upon a demurrer, and the plaintiff having at the trial proved the material alle- 
 gations in it, it was held that an objection that the facts jiroved were not suffi- 
 cient in law to entitle the plaintiff to judgment, could not be entertained, and 
 that the decision on the demurrer should be followed at the trial. See also 
 U'lir v. MathicHoii., 11 (ir. 300. 
 
 •750. In case the title of the plaintiff in an action to 
 recover land, as alleged in the writ, existed at the time of 
 service thereof, but had expired before the trial, the plaintiff 
 shall, notwithstanding, be entitled to judgment, according 
 to the fact that he was entitled at the time of serving the 
 writ, and to his costs of the action. E. S. 0. 1877, c. 51, 
 s. 31. 
 
 A writ of possession will be allowed to issue altiiough the ijl.-iintiff's estat* 
 terminated after action commenced, and iK'fore trial unless it will be unjust 
 and futih^ to issue the writ, and it is for the defendant to shew affirmatively 
 that such will be tlie result of issuing the writ : Knight v. Clark, 15 Q. B. D. 
 2114. 
 
 751. Where the evidence in any action is under these 
 Rules taken by affidavit, the notice of motion for judgment 
 thereon shall be given at the same time or times after the 
 close of the evidence, as in other cases is by these Rules 
 provided after the close of the pleadings. J. A. Eule 306. 
 
 The Kng. R. 1875, O. 38, r. « (188.3, R. 5.50), requires the affidavits t(. 1* 
 l>rinted. The notice is therein called "Notice of trial," instead of iiotue of 
 motion for judgment." Otherwise the Rules are to the same effect. 
 
 The provisions of this Bulr as to time do not apply to exclude t''*" ""'! ','; 
 affidavits made under a Judge's order, though filed after notice of tnal; 
 Warini) v. Laccii, 24 W. R. 318. 
 
MOTION FOR JUDGMENT. 
 
 63» 
 
 753. No action shall, except by leave of the Court or a^^tllA 
 Judge, be set down on motion for judgment after the expir- ^o motion 
 ation of 1 year from the time when the party seeking to set after one 
 down the same first became entitled so to do. J. A. Rule ^^^'' 
 320. 
 
 Identical with the ]<:ng. R. 1875, O. 40, r. 9, (1883, R. 5(57). 
 
 753. Where issues have been ordered to be tried, or A/ter trial 
 
 ,. <• r i i 1 1 i ■ 1 • of issues of 
 
 issues or questions oi fact to be determined in any manner fact, 
 [and there is no direction of a Court or Judge for the entry 
 of judgment I , the plaintiff may set down the action on 
 motion for judgment as soon as such issues or questions 
 have been determined. If he does not so set it down, and 
 give notice thereof to the other parties, within 14 days 
 after his right so to do has arisen, then after the expiration 
 of such 14 days, any defendant may set down the action on 
 motion for judgment, and give notice thereof to the other 
 parties. J. A. Rule 318. 
 
 The words in brackets are not in the Eng. R. 1875, O. 40, r. 7, (1883, R. 5G5), 
 and it names 10 d.iys instead of 14, otherwise it is the same. Tlie introduction 
 of the words in brackets appear to make no diflFei-ence in the construction of 
 the above Midi' ; they are implied, though not expressed in the English Rule. 
 
 This Ride has been held to api)ly where a reference had been ordered to the 
 Master to incpiire whether a partition alleged in the pleading was binding* 
 upon the i)arties thereto. The Master found in the affirmative. A motion for 
 judgment under this Itiiln was held projier, and the judgment was directed to 
 be entered according to the rejKjrt : (Jonsolidated Jiaii/c v. Wallbridae, 18 
 C. L. J.205. 
 
 754, Where issues have been ordered to be tried, or After trial 
 issues or questions- of fact to be determined, in any manner, onfy of%he 
 and some only of such issues or questions of fact have been f^e"!"' °^ 
 tried or determined, any party who considers that the 
 
 result of such trial or determination renders the trial or 
 determination of the others of them unnecessary, or renders 
 it desirable that the trial or determination thereof should 
 be postponed, may apply to the Court or a Judge for leave 
 to set down the action on motion for judgment, without 
 waiting for such trial or determination. And the Court or 
 Judge may, if satisfied of the expediency thereof, give such 
 leave, upon such terms, if any, as appear just, and may 
 give any directions which may appear desirable as to post- 
 poning the trial of the other questions of fact. J. A. Rule 
 319. 
 
 Identical \n ith the Eng. R. 1875, O. 40, r. 8, (1883, R. 5GG). 
 Where an order was taken, by the consent of the parties, to determine cer- 
 tain issues of fact in a manner which the .J uUge afterwards held to be Vwyond 
 
 :|^-'' 
 
 
 
 i ■ ; ■ 
 
 iW 
 
 
 
 ! , 
 
 [|pP - 
 
 
 
 ■..- 
 
 ' ^^^ .. 
 
 
 
 !•' '• 
 
 '1^^^^^-" 
 
 
 
 E' ■ ■ 
 
 il'^*>^g:rr. 
 
 
 
 8' '■ 
 
 'iUr 
 
 
 
 rj 
 
 M 
 
 ^HV 
 
 'i"" ' 
 
 M. 
 
r-^wy^^^mm 
 
 640 
 
 JUDGMENT. 
 
 Court. 
 
 Rule 768. the powers of tlie Court, Jessel, M.K., refused to proceed with the trial, on the 
 ground that any decision founded upon this consent order would not be 
 binding upon the parties : Reimblic <>f Bolivia v. .S'ational Bol. y<n: Co '4 
 W. R. 3(11. 
 
 ^)rTudR°" '^^^' Upon a motion for judgment, or for a new trial, 
 ment ov the Court may, (a) if satisfied that it has before it all the 
 tifmijudR- materials necessary for finally determining the questions in 
 iTsivon'^by dispute, or any of them, or for awarding any relief sought, 
 '—"■'■ give judgment accordingly ; or may, if it is of opinion that 
 it has not sufficient materials before it to enable it to give 
 judgment, direct the motion to stand over for further 
 consideration, and direct such issues or questioi i to be 
 tried or determined, and such accounts and inquiries to be 
 taken and made as it may think fit. J. A. Rule 821. 
 
 Identical with F-\g. R. IH'iy, O. 40, r. 10. The liidr of 18H3, H. ntW intro- 
 duced at f(U "(i..i,vall inferences of fact not inconsistent with tiic finding of 
 thejiu-y." Under this language in the Eng. R. it was held that when the 
 Court is satisfied that tlie verdict is against the weight of evidence, and con- 
 siders that all the tacts are before it, it may enter judgment accordingly instead 
 of ordering a new trial : Millar v. Tonliiiiti, 17 (^. B. D()()3; 1'2 Aiip. Cas. 746. 
 
 The motion for judgment referred to must mean not the ordmary motion, to 
 the Judge who tried the cause, for judgment after the findings u|Hm the 
 facts, but such a motion as is ci)ntem])lated by Jiulc 7!)M, where a judgment 
 has already been directed to be entered, and a Divisional Court is moved 
 for a new trial, or to enter another judgment. 
 
 Where the case is one proper for the decision of a jury, tlie jiowere con- 
 ferred on the Court by this Ruk may not affect the decision in Mmnr \: 
 Vonnecticul Mutual, (J App. Cas. (J44, that a Court has jjower to enter a verdict 
 in accordance with what they deem to be the true construction of the find- 
 ings coupled with other facts, either admitted or so clearly ])roved that 
 there could be no controversy about them, Init have no power to enter a 
 verdict in direct opiMjsition ,to the finding f)f the jui-y upoa .'. viateri' 
 issue: .see also I'eHins v. Danr/erlield, ol L. T. N. H. !)35 ; W. N. "<'- '--' 
 Jones V. Hiiinih, b Ex. D. 122 ; and MiUissich v. Lloyds, 40 L, •>. ' -■■■■■ 
 
 W. N. 1877, 36 ; Heicell v. B. C. Towing Co., 20 C. L. .1. 170 ; 4 C. ' ' 
 9 S. C. R. 527. 
 
 This Hide, however, seems to confer upon the Court, the jk' \<;;' \i 
 a verdict not in accordance with the finding of the jury, wliere the C:>'.i. .u- 
 siders that the most convenient course is not to send th(! case for the opin'on 
 of another jury, but to enter a judgment in accordance with their own views, 
 upon the whole case, if they consider that they have the proper materials before 
 them upcm which to decide : see Hamilton v. Jn/inson, 5 Q. B. D. 203, 260; 
 Lanceii v. liruke, lOOnt. 428 ; James v. Clement, 13 Ont. 11.5 ; Pahnn' v. Miller, 
 II)., f)7G ; Campbell v. Cole, 7 Ont. 127 ; or to finally determine all miestions in 
 dispute thougli the jury may not have found ujKjn them all : iSeurll v. lirittsh 
 Columbia Tawing Co., supra. 
 
 Where, therefore, the case is one in which no additional facts reniaiii to w 
 proved, and in which, upon the facts jjroved, no jury would be justified in find- 
 ing a verdict adverse to the party against whom it has been found, the Court 
 has before it all the materials necessary for finally detennining the questions 
 in dispute, and will act under this Rule: Vorti/ure Jiankimj Cinupamj v. ««''■ 
 son, r> C. P. D. 100, 127 ; fitewart v. Rounds, 7 Ont. App. 515, 519 ; Md'onnM 
 V. W'dkins, 13 Ont. App. 438. 
 
 The power must be most sparingly and cautiously exercised, (;""'' Wilson, 
 C..T., in Stewart v. Rounds, supra); and will not be exercised where there i' 
 evidence to go proiierly to a jury : Brewster v. Dnrrand, W. N. 1880, 2( i "' 
 
VS 
 
 MOTION FOR JUDGMENT ON ADMISSIONS. 
 
 641 
 
 ■t 
 
 where if u new trial wore ordered further evidence might be adduced : < 'lark v. Rule 766. 
 Moh/iiiwr 3 (J. B. I). 237, 245 ; see Baker v. G. T. Ry. Co., 11 Ont. App. 72. 
 
 In Mili\i.-<icli V. JJoi/ilx, 4t) L. J. C. P. 404, W. N. 1877, 30, an action h>r 
 libel, the Court held that whether the rejwrt of a trial in question was a fair 
 (ine or ni)t, was a (luestion for the jury, which the Court would not withdraw 
 from them \»ider tliis Bulr. 
 
 Where th(!re was a conflict of evidence, and the Judge who tried the cause 
 without a jury, attributed jjreater weight to the evidence of some witneHses 
 than others, but, in the oi)niion of the Court, took a wrong view of the law, 
 tlie Court refused to make a decree on the evidence, and sent the case for a 
 new trial : CoHnda Luiuh'it Credit Co. v. T/kwi/iioii, 8 Ont. Ajjp. (59G. 
 
 See also for ajjplications of this Rule ; Merrier v. U'il/iums, !) (^. li. I). 
 337 ; 10 Api). Cas. 1, where judgment was entered for defendant upon a 
 motion for new trial in an interiileiwler issue ; iJann v. iSiiiimiii.i, 40 L. T. 
 X. S. Mi', ; 41 L. T. N. S. 783 ; 28 W. K. 12!t ; W. N. 1870, 178 ; where a 
 non-suit was entered, after a verdict for ])laintiiT, and though the rule only 
 iisked for a new trial, the Court being of oitinion that there was really no 
 evidence in support of the findings : also iiatfi/ v. Clerer, 71 L. T. Jour. 43 ; 
 m\ Wmldell v. Blorkley, 10 Ch. D. 41<) ; /uixtlciid v. Binr/ieU, 38 L. T. N. S. 
 rit)3; ltn.«'nl,er<)pr v. (irand Trunk Rn. Co., 32 C. P. 349, 305 ; 8 Ont. Ai)p. 482; 
 yS. C. H. 311 ; Sluiidard Bank v. Dunham, 14 Ont. 07; Heath v. I'aqh, (i 
 (l K I). So.^. 
 
 The Court declined to act under this Ride in (Uirland v. Thompson, !) Ont. 
 .370 ; see also J/islop v. Mcaillirrnii, 7 ( '. L. T. 37. 
 
 This iS«/c was held not to apply to Inferior Courts by virtue of sec. 77 of 
 tlie Jud. Act of 1881 (now R. S. O. 1887, c. 47, «. 23 : c. ,51, s. 73) : I'mor v. 
 Vity Offices Co., 10 C^. B. I). 504. 
 
 756. Any party to an action may at any stage thereof summary 
 apply to the Court or a Judge for such order as he may, motion" 
 upon any admissions of fact in the pleadings, [{iv) or in the ,"fi°gio^^: j, 
 examination of any other party] he entitled to; [{x) and it pleadings, 
 shall not he necessary to wait] for the determination of any 
 other question hetween the parties {y) ; [{z) or he may so 
 apply where the only evidence consists of documents and 
 such affidavits as are necessary to prove their execution or 
 identity without the necessity of any cross-examination ; or 
 he may so apply where infants are concerned, and evidence 
 is necessary so far only as they are concerned, for the pur- 
 pose of proving facts which are not disputed.] 
 
 (a) The foregoing Rules shall not apply to such applica- 
 tions, and any such application may be made by motion as 
 soon as the right of the party applying to the relief claimed 
 has appeared from the pleadings. 
 
 [h) The Court or a Judge may, on any such application, 
 give such relief, subject to such terms, if any, as such Court 
 or Judge may think fit. J. A. Rule 322. 
 
 (w| The words here in brackets are not in the Eng. R. 1875, O. 40, r. 11, (1883, 
 
 ; ^F"). which here has " or otherwise," and those words were held to include 
 
 adniissions contained in an affidavit filed on a previous interlocutory 
 
 ippiication made in an action in which no pleadings had been delivered, 
 
 J.A. 
 
 41 
 
 Ail 
 
642 JUDGMENT. 
 
 Rule 766 and the writ not si)ecially indorMod : Landeri/tni v. Fra.'.-f, 34 W. R. 4(i!l, (ifil • 
 54 L. T. N. S. .%i». This wii« revtTHfid on aj>i«.'al : aoL. T. N. S. 42; 'CtL..]', 
 Chy. 505; on the ground that the admission was not dcfinit*' fnoiij,'!). and it 
 was held that there must be a clear sulniission in the action in which the iidtuis. 
 sion is made. 
 
 (.'•) Instead of the words in brackets here, the English Order has the wiirils 
 "without waiting."' 
 
 (y) Where one defendant does not appear, or does not deliver a dcfcncf, and 
 another delivers a defence on whicli tiie ])laintiff's rigiit to relief is iuliiiiti<d, 
 the plaintitf may i>r(K!eed against tlie latter under this Biilc, und iigaiiist tiie 
 former by default: Hr Siiiilli'x HkUiIi', Britlmn v. Smith, 24 W. H. ;^!I2 ; A(r«,w 
 V. Jlnrn's, (} Ch. I). <)!)4 ; set- however Wai-nci- v. /iiivii's, 70 L. T. .Tov.r. 130, 
 See also Jenkins v. l)(iviri<, 1 Ch. D. <>!>(), where a statement of dcfeiicH, pur- 
 porting to be the defencie of a husband and wife, raised no ('. fence as retrardwl 
 the Inisband, and the plaintiff was held entitled under the Kiiglish rules iif 
 pleading (though ic would be otherwise here under Itiih' 403) to jndpnieiit 
 against the husband as admitting the plaintiff's claim, without waiting fur tiif 
 detennination of the case against the wife. 
 
 (■.I The words hero in brackets are not in the Englisii Rule and are {;(kra 
 from the Chy. (J. O. Xo. 27(». 
 
 The object of this Ruk is to en.able a plaintiff or defendant to get rid (if so 
 much of the acti<iu as there is no controversy respecting. If the whole issue is 
 not in controvers-. , either i)artv may be entitled to move on the admissions of 
 the other : Thorp v. Holdsworih, 3 Ch. ]:). at p. (i40. 
 
 There cannot be an admission under tliis Rule where there are pleadings, until 
 both claimanfl defence, {Jiirmrrv. />«(•/,«, 23 Sol. Jour. 4(12,) have been delivered; 
 AfcLeail V. Sej^^wiith, 12 V. K. (iO(i ; and the indorsement on a writ was held to 
 be not a jdeading within the Ruli- : iVnUin v. JaiLtdii, 23 Cii. I). 204, fdlluwid 
 by Boyd, C., in /''cU v. WiUiums, tiiough not mentione<l in the report 3 C. L. T, 
 358 ; see also UiUutt v. Ker, 24 W. R. 428 ; and the reference to pleiidiiigs in 
 clause (ii) of the Rule ; and JMiidcft/aii v. Feast, siijirn. 
 
 The Rule is ajjplicable at any stage of the action, after pleadings: McLmi 
 V. Se.rsmith, supra, and therefore it was held that the jdaintiff was entitled to 
 judgment on an admission imder this Riitr, tliougii he had delivered a reply, 
 and the action was set down for trial : ISron-n v. I'mrsun, 21 Ch. I). 7Hi ; and 
 the Rule may be acted on at the trial : Tildeslen v. Har/nr, 7 Ch, D. 403. .^fter 
 a judgment obtained without jileadings, tlie //(^/c was iield to he aiiplicable nn 
 a motion under Hide 870 for leave to issue e.xecution against a person as a 
 partner under a judgment against the finn : Teiiuant v. Maidiard, 12 1*. K. tilH. 
 
 The entering of a dispute note imder Rale 20!), limiting the defeiice to a part 
 of the sum claimed and admitting the remainder is an admission luider this 
 Ride : Vrairford v. (iemmell, 7 C. L. T. 117. 
 
 It is in the discretion of the Judge whether to give relief on the motion or 
 not, and the Court of Appeal will not review his discretion : Metier v. Side- 
 bottom, 5 Ch. D. 342. 
 
 A defendant may move upon an admission entitling him to the "relief" of 
 haying the action dismissed: P((seor v. Rirhnrds, .50 L. .T. Chy. 337; W 
 L. T. N. S. 87 ; The Saptcs, 35 W. R. 5!). 
 
 In the exercise of such discretion, parties are, as a matter of convenience, not 
 allowed in England to make under this /lidr appliiiations which invidve a seri- 
 ous question of law to be argued whicii might l)ctter be decided on demurrci, 
 or at the trial : per Mellish, L.J., in (iilhert v. S„iith, 2 Ch. 1). (>8!t ; M(l!or\: 
 Sidebottom, 5 Cli. D. at p. 344. See also Staddert v. \'<;, Steiijlil:, 1!) L. R. Ir. 
 237. 
 
 These cases, however, do not fully apjily in Ontario. The provisions of tins 
 Rule, which are not contained in the English Rule, are trken from and 
 supersede the fonner Chancery practice regidating hearings on motion 
 for decree (see Chy. O. 270), and on bill and answer. On a motion tor 
 decree the examinatior. of a defendant might lie I'ead with his answer aganist 
 lum : J'ror.tor v. O'ruHt, 9 Gr. 31 ; Mothers v. Short, 14 (Jr. 2rj5; see also l',.i'rll 
 
vm WT^ 
 
 MOTION FOR JUDGMENT ON ADMISSIONS. 
 
 648 
 
 las the wonls 
 
 and aiv t;iken 
 
 admissions of 
 
 11 a motion 
 
 V. /.«(, 20 Gr. (i21; and Rii;ifi\i v. Wilfuni, 12 Ont. 322. Affidavits proving Rule 766. 
 exhibits might formerly be read on motion for decree under Chy. O. 270, or 
 on a hearing on bill and answer: see KiUnhj v. Umham, 2 (jr. 281; Chnlkw 
 Hiiiii; 13 .lur. "s]. ]iiit query how far this is the case now : CiKik v. Lemicu.i-, 
 10 P. R 577. It may be found that upon the documents which maybe referred 
 to the (juestions raised in the action cannot satisfactorily be disix)»ecl of, in which 
 ciwe the action may be directed to be brought on for trial in the usual way : 
 lUinlmc V. nri'Wii, (before (lalt, C. J., 28tii October, 1881)). 
 
 Both tiuwe methods of hearing a case were formerly emi)loyed in casea 
 involving tiie consideration of important qiiestions of law. Suits for the 
 construction of wills are familiar examples : see for instance Fuller v. MacMeiii, 
 L'jGr. 4.")") ; Jin/jKnn v. Aiyiie, 25 Gr. 407 ; Pat/on \. Hichsoii, 2.5Gr. 102 ; Clark- 
 sua V. Soil/, 25 Gr. 373. In such cases this Rule is no doubt applicable, and 
 the motion will be properly made in Court : Rotjers v. Wilsim, 12 Ont. 322. 
 In simpler cases similar to those in wiiich the English Rule was intended to 
 apply, tiie apiilication may be made in Chambers : see Uiuajh v. Ileatlei/, 
 w! 'N. 1«84, 14 ; 32 W. K. 385 ; 4!) L. T. N. S. 772 ; Cook v. Heijnes, III. 
 75; Lnndioi, etr., v. J>i:/li>/, 3G W. R. 41)7 ; ,58 L. T. N. S. 724; 57 L. J. Chy. 
 DO"). 'I'he Rtdi' has frequently boon ai)plied by the Master in Chambers : 
 see Tru.1t and Loan Co. v. /////, « P. R. 8. 
 
 Even in England an api)lication may be made where the judgment asked for 
 is in the nature of a final judgment and not merely interlocutory : Uilbert v. 
 .SwiM, 2 Ch. D. G8(i; Jenkins v. Davies, 1 Ch. D. fSilC ; Re Barker's Estate, 10 
 Ch. D. 102, 105 ; but it has been held that the party moving mtist have a 
 clear case, and if he claims a right which does not exist at law, the fact that it 
 is not denied in the other party's pleadings will not entitle him to judgment : 
 Chilliiii V. Londnii, 7 Ch. D. 735 ; see Rule 749. 
 
 In an acti(jn on a foreign judgment where the only defence was a denial of Illustra- 
 the jiulgnient, it was held that the plaintiff was not entitled to judgment under tious. 
 this iJii/r, upon the pleadings and an exemplification of the judgment, as it 
 was necessary for the plaintiff to give evidence to connect the defendant with 
 it, and supiiort its genuineness, the defendant having put the judgment 
 distinctly in issue : Heniherii v. Turner, 2 Ont. 284. 
 
 In reply the plaintiffs admitted that a collision was not due to default of the 
 defendant, or those on board, and submitted to a decree that it was due to 
 inevitable accident. On motion by the defendant on the admission, the action 
 wiis dismissed with costs : T/ie Xa/jles, 35 W. R. .51). 
 
 Where the plaintiff's case is not conclusively made out, the motion will be 
 refused : (hok v. Lciiiitux, 10 P. R. 577, where it was held that much care must 
 lie taken in cases under this Rule not to take away the right of trial on vivd 
 voce evidence : see also (Jardner v. Brown, supra. 
 
 In an action for infringement of a patent, the defendant admitted the 
 infriiifrement in ten instances, but denied any other infringement. On a motion 
 for judgment on the pleadings the i)laintiff was held bound to take the denial as 
 well as the admissions, and entitled to an incpiiry as to damages limited to the 
 ten instances aflmitted : United Telephone Co. v. Doiwhoe, 31 Ch. D. 31)9. 
 
 An admission by defence must be taken just as it is ]ileaded : Dcmorest v. 
 Midland, 10 P. R, 040. Thus in an action on a policy of insurance for £10(H), 
 a defence that on an apportionment of the loss under a certain condition in the 
 policy, the defendants were liable for i.'G2 only was set up. The plaintiffs were 
 not alkiwed to have judgment for this and proceed for more, the defendant's 
 contention being that the a<lmission was that £02 was due as the result of an 
 entire defence showing that no more was due : Andrews v. Patriatic Assurance 
 Co., 18 L. R. Ir. 115. 
 
 The whole of an a<:lmission in a pleading must be looked at, and the sense, and 
 not merely the grammatical ccinstructior/or the form thereof, is to be regarded 
 as tlie criterion of the extent and scope of the admission : JJovei/ v. Irwin, 4 
 Ont. 8 ; and it must be clear and distinct : Lunderi/an v. Fea.^t, 34 W. R. 691 ; 
 55 L. T. N. S. 42. 
 
 I he statement of one p.^rtner on his examination (in a suit against the firm), 
 a" to transactions which occurred during the partnership binds all the partners, 
 
644 
 
 JUDGMENT. 
 
 Rule 766. unk'.s^^ tliey nt'ok by exainiimtion of Home of tht'Uisflves to contiwlict or qimlify 
 tlio HtatementH of tlie i)artiu'r whom) tivideiice tliey object to : Tiu/lor v. Cook A' 
 '•"., 11 P. R. (iO. 
 
 In a forecloHure action, the wtateinent of defence craved leave to refer to dcwlji 
 mentioned in the statement of claim and, save hh by Hiich deedn when prdilueed 
 .should appear, the defences did not admit that they were to the effect nieiitioiiMl 
 in the statement of claim. I'lMm motion for judg'nu'nt under this A'«/r, the 
 deeds beinp jjnKluced, it was lield that there was a sufficient admission of tlic 
 executitm of the deeds, as they appc^ared to be of thts dates, and made hftwecii 
 the i)arties, mentioned in the statement of claim : liiinutnl v. Widaiid, \V. N 
 1882, 103 ; 30 W. K. i)47. 
 
 In an action on a covenant for payment in a mortgage, the defendant ,v!;i:it- 
 ting the mortgage, submitted that the land siiould be sold and proc"(:!.s aii|Iic(i 
 in payment of the plaintiff, or, he having sold the !;uid to unotiier who IhkI 
 assumed the mortgage, that if he was bound to pay the plaintiff he was entitlMJ 
 to an assjginnent of tlie mortgage, and judgment was given for tiie pliiintlff 
 under tiiis Rn!i\ it being held that the defendant as mortg.agor wa/ notentitlMl 
 to an assignment : Croxkr v. A/kenhac/i, 19 C L. .). 7!). 
 
 Judgment for jxissfission was given against a mortgagor who admitted tlic 
 mortgage and default simply: 'Tru.it d' Lutin V<i. v. Hill, !l J'. H. X;,s(i 
 where he admitted that liis mortgage was in default and plaintiff was uuirt- 
 gagee, merelv saying, in addition, that some oni,' else was in possession: 
 I'luUlitt V. Bi'nm, W. N. 1884, 10; see also Croft v. Cnlli,i,iimoil, Hi. 33. 
 
 Where the plaintiff's claim is admitted, but tlie defendant sets up a counter- 
 claim for damages for a larger amount, tlie plaintiff is not necessarily entitled 
 to judgjnent ui)on the admission of his claim. Seiiihle if the coimterclaini is 
 apiianmtly frivolous or unsubstantial, the plaintiff would be entitled to luive 
 the amount of his claim brought into CoiU't to await the result : M) r.tiii Slinm- 
 nhipCi). V. ,Slnittlnvorth,W(l 15. I). 4()8 ; affirmed in appeal 11 (^ H! I). 531. 
 A judgment for the jdaintifF was made, where the counter-claim was in fact an 
 independent claim for damajjes as to the ([uality of other goods than tliose for 
 the price of which the j)laintiff was suing ; but execution was directed to !»• 
 stayed till after the trial, if the defendant should pay the amotmt of judgment 
 inti) Court: .Shoirrll v. Boirron, W. N. 1883, .50 ;' 31 W. li. ooO ; 48 L. T. 
 N. S. «13 ; 52 L. J. Q. ]i. 284. 
 
 In CmUlimiton v. JaekifonriUc, Pcanacold and Mobile Jiftilwaii Co., 3!i 
 L. T. N. S. 12, the plaintiff claimed a charge ui>on certain bonds of a foreign 
 state wiiich were deposited in *he bank to the credit of the cause. Tiie defen- 
 dants, in tneir answer, admit ed t\w jdaintiff's title, and an order was n)a<le, 
 i)efore the hearing, for the sale of the bonds as ])erishable goods witiiin tiif 
 meaning of Rule 1133. 
 
 Under this lUiIe, in a i)artition action, an inquiry was directed as to tiie 
 ))ersons interested in tiie proinrty : 'liUiert v. Umitli, 2 Ch. 1). <)8() ; an order 
 for sale was made : Binndl v. Burnell, 11 Ch. I). 213; an order was iiiafle for 
 taking the accounts of partnership dealings : Turquaml v. Wilxim, 1 Ch. D.ST); 
 tlie agent of the trustees of a will was ordered to deliver up all securitie." 
 relating to the testator's estate, and to account for all sums received on behalf 
 of the estate : Rumscn v. Rcadi, 1 Ch. D. (143 ; and an order for a dis.solution of 
 a partnership : Thorp v. HoUhworth, 3 Ch. D. 037 ; see also Bnuictt v. Moon, 1 
 Ch. D. (>!»2 ; Martin v. frV/f , 4 Ch. D. 428. Probably also the conmion ai)pli- 
 cation for i)aynient into Court by an accounting party of a sum admitted to lie 
 in his hands may now, at any rate liefore judgment, be made in Chainbt'i> 
 under this Ruli', though fonnerly made in Court : Re Currii, 8 P. K. 340. As 
 to what is a sufficient admission for this purpose, see Rv Curr//, mtprn ; Hr 
 Btihcoch, 8 (rr. 40!) ; Collins v. Orvic, 3 Chy. Ch. 70 ; London Siindicute v. Lonl 
 8 Ch. D. 84 ; Freeman v. Cox, lb. 148 ; Siimond.-< v. Jenkins, 34 L. T. N. S. 27i. 
 
 Admissions in letters written by a trustee before, and after, action brought, 
 that he has received trust funds, and the recital of that fact in the settlement, 
 tlie r^vecution of which by the trustee has been proved, are sufficient adiiii'sions 
 to support an order for i)ayment into Court, although there is no fomal 
 
^^-mmm 
 
 MOTION FOR JUDGMENT. 
 
 646 
 
 'lulant .•v];i:it- 
 
 •wlinUHiiiii ill tlif plcadiiiKu : Httmpden v. Wal/in, 27 011. V 251; »»•«' ttUo Rules 
 'porntt V. mutr, 31 Cli. I>. 52. 707, 768, 
 
 TliP Cmirt c;in, on iiii iutcrlociitory iippliuittioii, wlinn it mm Iwfoni it tlic 
 partii's to an accinmit, look at all t\w facts of tim cast', ai'^I uhh its (iiscrotioii as 
 to disallowing' char^'us to which tlm (larty making,'' tliciii is doarly not «ntitlt'(l, 
 ;ui(l will onicr i)ayiiu'nt into Court of tlii^ sum which it thus decides to In- 
 jiliiinlv due to the other i)ai'ty : Wniik/iiii v. Wihon, '.i'y Ch. I). ISO. 
 
 \ foreclosure decree was rcffused wiiere tlie defence did not admit the 
 miirtL'aire deed: JJiivifH v. Siailli, 2!> Hoi. .lour. 115 [or Siaitk v. IhtvicH, 2!t 
 ,Sol. .lour. 132] : see VV. N. 1HH4, 242 ; .52 L. T. N. S. 1<». 
 
 Where;, solicitor put in a fraudulent defonce for his client, without the know- 
 Iwlj,"" "f tl'"' client making admissions on which jud^'inent was obtained 
 iitfaiiist tlie client, the judj,'inont was set aside aii(i the client allowed to 
 withdraw the defence and [nit in a frcsii one : Willimm v. Preston, 20 
 Ch. \). (172. 
 
 It seems that in Knglaml, as a matter of form, further directions cannot be 
 reserved; hut the same ol)ject is accomjilished by declaring tliat the further 
 consideration of the action is adjourned: Bcimdt v. Miiorr, 1 Oh. I). (i!l2 ; 
 (lilhertv. Smith, 2 ('h. 1). (WB ; /ir<in><iii<it'>n v. Cus.inn.i, 24 VV. K. 881. No 
 (littiniiUy of that kind would s»eiii to arise here, (see Kn/i' 758), and where the 
 motion is made in Ohambors the in(jtion on further directions should als(j he 
 m!wleiiiChaml)ers: Medilticwlilij v. Mntnvthii, 7 0. L. T. 1()5. 
 
 To?. Where it is made to appear to tlie Court or a Pending 
 Judge, on the hearing of any application which may he uon turned 
 pending before the Court or Judge, that it will be conducive ["J,'; ",5°" 
 to the ends of justice to permit it, the Court or Judge ^i^^y |,i.'ife"ri„ ; 
 direct the application to be turned into a motion for judg- of cause, 
 ment, or a hearing of the cause or matter ; and thereupon 
 the Court or Judge may malfe such order as to the time 
 and manner of giving the evidence in the cause or matter, 
 and witli respect to the further prosecution thereof, as the 
 circumstances of the case may require ; and upon the hear- 
 ing it shall be discretionary with the Court cr Judge to 
 either pronounce a judgment or make such order as the 
 Court or Judge deems expedient. J. A. Kule 323. 
 
 Same in effect as the Chancery Order 014. There is no corresponding English 
 Rule. 
 
 See this Ride, ajiplied in Bijnir \ .Bix, 2 0. L. T. 47. 
 
 75H. Where further directions have been reserved, ififoausonot 
 the party having the conduct of the action does not set the r d" with" 
 same down by way of motion for judgment on further direc- aftlatou- 
 tions, and serve notice thereof within It days after the 2}"*Q"'*J,°.'t* 
 confirmation of the Master's report, any other party affected any party 
 by the report may set the same down, and serve notice of ilmy sef 
 the motion. Chy. 0., 419. S'nStke. 
 
 Evidence taken in the Master's office cannot be read on a hearing on further 
 directions : aoald v. Burritt, 11 (4r. 234 ; Curlimj v. Audin, 2 Dr. & Sm. 12!) ; 
 ^cGill V. Cnurticc, 17 Gr. 271. lint on the question of costs reserved, the 
 Court will look at an order made on ap|)eal from the report, and also 
 
 
 <-^ 
 
'<9^ 
 
 646 
 
 Rvle 769. 
 
 Court on F. 
 U., may re- 
 fuse to aot 
 on report, 
 or to carry 
 out an 
 erroiieouR 
 judgment. 
 
 .lutlgnionts 
 
 where 
 
 Hettled. 
 
 Appoint- 
 ment to 
 
 settle. 
 
 Appoint- 
 ment to 
 pass. 
 
 Registrar 
 may make 
 alter- 
 ations. 
 
 Varying 
 minutes. 
 
 JUDGMENT. 
 
 the pli-iulinuTH, and otluT urders inadt) in tlio catiHU : Ihrntini v. lUm li 
 P. R. H!». ' ^ 
 
 Tlin C'Durt may, on ii licarinK <>f tlic cauHo on furtlit^rdinictionM, rufiiHcto 
 act \\\v.t\\ a riiport, altlumiifli it Im) conHrnit'd, if it a|)|M'arH to Ix' iiuiiroiier, 
 or uumitiMfac'tory : Taiilor v. <'rairii, 10 (Jr. 488; /!<il(firin v. i'niiffnvil, 1 (Jr.' 
 202; Hnrrisiia v. McShnhaa, 80 L. T. Jour. ?!•; anil it may aim) rcfiiNc tociirrv 
 ()\it tii(< original judgment |>runuunued in the action, if' it apjH-ar.i to |iav« 
 been iniprovidently granted : see Commercial lUink v. (intliiiin, 4 (Jr. 41!); 
 Mitrhi/I V. St rath II, 28 (Jr. 80. 
 
 A judg'nient pronounced by a Hiiigle .Fudf^e on a liearing on fin-tlier (linrtiomi, 
 in not ap|K>alal>le to a l)ivisi(>nal Court; WoimUii v. Siuatlirooil, 10 I'. H. 233; 
 except l)y conHent : Jiiil<' 21!(. 
 
 751K All ju(3graents d«Hvevetl in Toronto or elsewlierr 
 than at the place of trial shall he settled when necessary 
 hy a Registrar. 
 
 Tlie RegiHtrar here referrerl to in tiio Registrar of the J)ivision in which the 
 action, or matter, is pending. 
 
 Wiien a judgment in pronounced, or an order made, l)y the flotirt, a note is 
 taken by the Registrar or other officer atteiKling the CoiU't for the purpoHc, and 
 a similar note is indorsed by counsel or. their briefs ; and from thene notes the 
 draft or minute of the judgment, or order, is ))repared. 
 
 Judgments [mniounctid on circuit, are, when nece.-sary, to be Kettlcd by ''w 
 Deputy Regist.-.ir, Dejuity Clerk, or Local Registrar : /litlr 7(>1. 
 
 The party desiring to enter the judgment, or isKue an order, the minutes of 
 which require to be first settled, usually in practice )ire])ares a draft, and 
 attends the R(!gistrar, or other officer authorized to setth- the minutes of tlie 
 judgment or order, for an al)^K)intment to .settle it. Tiie Registrar or other otficer 
 will, however, if required, nimself jirepare the draft of the judgment or order, 
 and when it is ready will issue the appointment to settle it, if lie shall deem 
 one necessary. See liule 7()2. 
 
 On the return of the a)>ix>intment, the j)artie8 notified are to attend and make 
 any objections they nuiy nave to the draft, which are disiH)sed of by tho Kegis- 
 trar, or the officer settling the minutes, who then marks tlie draft .settled, and 
 adds his initials. The minutes having been settled, the judgment, or order, is 
 then engrossed, and having l)een compared with the draft and i)assed, it is then 
 «igned or marked by the Registrar, or other officer, who has settled the minutes 
 for entry. 
 
 Where theRegistrar or other officer thinks it necessary he may give an apiwint- 
 ment to i)a8s ; e.g., when any blanks have been left in the draft ; or the terms 
 of the order, or judgment, are complicated, and there is any danger of error in 
 transcribing the draft. The ))assing of the judgment, or order, i.s merely the 
 act of comparing tiie engrossment with the draft and seeing that it agrees with 
 it, and signing and marking it for entry. 
 
 The Registrar or other officer in' drawing uj), rir settling any judgment 
 or order, may introduce such alterations as from his experience he believes the 
 Court will sanction ; and these alterations are l)indmg on the parties : see 
 Dnveitpiirt v. Staffim/, 8 Beav. 503 ; J/an/mve v. Jlari/rair, 3 Mm. &G.m', 
 Seton, 1546 ; MckiiKhci/ v. A nrntrmg, 11 P. R. 200. 
 
 Where questions of difficulty arise, the Registrar may require the matter to 
 be mentioned to the Court. 
 
 Motion to vary minutes.— After the draft or minutes have l.'een settled by 
 the Registrar, or other otficer, but not before, any party dissatisfied may move 
 to vary the minutes ; and the Registrar, or other officer, should be previously 
 infonned of the application : Prince v. Ilnuvnl, 14 lieav. 208 ; lloid v. (.\mper, 
 2() Beav. 373; TennaiU v. Trcnrhard, L. R. 4 Chy. .537, 545; Jiritixli Dynmilt 
 Vo. V. Krehs, 25 W. R. 84fJ ; and such applicatitm may be made at .any time 
 before the judgment, or order, '■ passed and entered ; 1 Turn. & Ven. 319; 
 
BETTLINO MINUTES OF JUDGMENTS. 
 
 647 
 
 ill wliii'h the 
 
 Hettlcd 1)V ''le 
 
 the matter to 
 
 Dtttil. Pr. HTj'i ; HvUm 154('». Tlif iiDtict- of iiidtioii mIii>u1(1 1k< served on all Rule 759. 
 
 |i;trtii'H intcrcMti'il, anil Htute tlif alteration desired. 
 
 The Ciiiirt may refuse to iierniit any <iiit^stii»n to l>e arKned on a niotion to 
 vivrv tlie minutes, exc-eiit wliat was the actual order made, and wiiether tlm 
 il'itflltioii i)f tile Court lias lieeii correctly expressed ; .Stiutli Wiilrs Mia. I'd. V. 
 Jhiii'.i.'M Sol. Jour. 110; unless liotii parties consent to an addition hcMnp 
 miwle, or when it cannot lie ascertained what order was pronounced ; in wliicli 
 t'lVHi'^'the Court may allow tlie case to lie re-ai'Kued ; see Hetoii 154(1; J/iuilrii: 
 V. Ili'iitlii, L'!l Cr. 42.'1. 'i'lie Court has, however, on a motion to var.y minutes, 
 vimeil tile ilecree ; Jail iixmi V. Sclitml Trn.sfirt, iMHJr. 204; and until a ju(l(^- 
 nieiit lias lieeii actually entered a .IikIkc may recall, or alter the judjnnent : 
 (iliin'imr V. Illiisiiiiir, !l Out. Till, note ; I'lntiiilinn Luini C". v. l)iix(iit, lli. ; Re 
 SuJ^il'l <(• Wiilt!<, -'0 C^. ]\. 1). at p. »»1>7 ; Hr A<liim Eittoii, 3() Ch. 1). 2!>!l, and 
 other cases in noten to Uiilr 7S0. 
 
 Any variation made on a motion to vary the minutes isemhodied in the draft, Costs of 
 ami except where tile costs of the motinii are ordered to be iiaid, no further uiotion. 
 (inltT iifcil lie drawn up liy any party. 
 
 If tliei'e is fair vri''>uii'l for the application, and there has lieen no imiiroper 
 (F|i;"isitinii, tile costs are usually made costs in the causv, and the jiidgnient, 
 (ir Di.lcr, may he post-dated so as to include the costs of the day : see Seton 
 15411. 
 
 WiiiMc an order has lieeii made in Chambers it cannot 1m* drawn uj) as a Court 
 (iriliT, even tliiniL'h the case be one which might liavts properly been arjfued in 
 ('i)iii't, unless both the jiarties and the Court consent : lif JlfHiiiinj, 11 J'. K. 
 27:'. 
 
 Wiiere tiie minutes have been settled by a Local Oftit.'cr they may Ih' varied 
 either on application to a judgment clerk, or on motion to "tiie Judge," 
 presumably tlie Judge who pronounced tiie judgment : Rul* 701. 
 
 Where, after judgment was i)ronounce(l, a mistake was discovered in the 
 Htateniciit of claim, on a subse(iuent ajiplication to ani(>nd the statement of 
 claim, tile judgnient was directed to be jKist-dated as of a day subsequent to the 
 aineiidmeiit ; W'iiiUeji v. Winhlvi/, 44 L. T. N. S. f)72. 
 
 Umler till? former iiractice, if the suit aliated after decree ])ronounced, or Abate- 
 between hearing and judgnient, the decree might bu jia.s.sed and entered not- ment. 
 withstanding tiie abatenicjit of tiie suit: Hetoii, 1547; lifumish v. /'niiifriu/, 
 1 Cliy. Cii. :«. 
 
 A party imt i)roduoing his briefs when re<iuired, was ordered to do so within 
 a limited time, and in default the order was to be drawn up without them: 
 yciltni'li, V. /,'«/,/, 14 W". K. VIA. 
 
 A sdlieitiir who has been discharged by his client before the jias.sing and 
 entry of an ordta', will not be allowed to withhold jiapers on which he claims 
 ti) held a li<'n, so as to prevent the drawing up (jr entry of the order : Simmonih 
 V. '.'. E. /,'//. r,,., L. R. 3 Chy. 7!)7 ; ClUfonl v. Tiin-ill, 2 D. & S. 1. 
 
 An ap|)ointment to settle minutes, served one day and returnable the next' 
 was siitricient under the former jiract'ce : He ('liri.slt)i(i.s, 1!) Beav. !)!{). No time 
 IS prescribed liy the En/f.'i within which a judgment or order is to be beHjioken, 
 mid issued, — under the former practice a time was limited by Chy. Ord, 10, 11 : 
 ■ee Holmested's Rules & Ords, 8 ; and after the lapse of the ))rescrilied time 
 tliH judgment or order was not to be issued without lea\e— but this practice 
 was not very strictly followed. After the lapse of four years' notice of the 
 application to issue an order was reipiired to he given to all parties : Re 
 Fiimtttci; MfK.tiiier v. Fiirn'ifcr, I Chy. Cli. 21). 
 
 Entry of Judxmsnts and Orders.— Before an order requiring entry can l)e 
 enforced by attachment for disobedience, it must be entered, and sucli entry 
 should havH been matie before the exjiiry of the time limited by the order 
 fordoing the act thereby ordered to be dcine : Ballard v. TwHlimim, 48 L. T. 
 N. S. r.l5. 
 
 Prixjeedings under a judgment, or, order requiring entry, before it has been 
 entered, are irregular and voidable : T'-'.sou v. Jertis, 8 Beav. 3(5(5 ; Driimmond 
 
 
 ^» 
 
 <k 
 
 % 
 
S^JZ 
 
 648 
 
 Rules 
 760-V62. 
 
 Time for 
 entry. 
 
 Entry nunc 
 pro tunc. 
 
 VaryinRi 
 judKinent. 
 
 JUDGMENT. 
 
 V. . 1 «(/(■/•«//(, 3 (ir. 150. Although in the case of injunction.s and ivstrainin^ 
 |)^der.^, parties are bound by notice of the restraining order, however rcwived, 
 from the time when it is ])r()nounced : Seton, 174. 
 
 By Knghsh (ien. Ord. of 4tli December, l(Jitl, all orders prontmnced in 
 Michaelmas or H'lary Tenns, or the vacations following, were to 1h' entered 
 before the first iay of tlie ensuing Michaelmas Term ; and all orch^rs \m)- 
 nounced in Easter or Trinity Terms, or the following vacjitioiiK, were to he 
 entered before the first day of the ensuing Term. This uvdi-r is considcrwi to 
 be still in force in England : see Seton, 1547. Wiiether it is binding liere semis 
 doubtfid : Biilc 3 ; see, however, Jud. Act, ss. 22, 5(i. 
 
 Orders may be miule to enter judgments, or orders ninir jim hnir : />..«?(,' v, 
 Lewin, 11 Ves, (101 ; Lnvirncc v. tticlniumd, 1 .J. & \V. 241. But when a defen- 
 dant woidd be i)rejudiced by such an order it will be refused : hrntiimi'iid v. 
 Anderxni,, 3 (ir. 150. 
 
 After a judgn.'ent, or order, has been passed, and entered, it can, as a Kenenil 
 rule, only l)e varied onapi)eal or rehearing : nfv J'c///irr v. Pcj'/n'i; W. N. 18(iK, 
 104; /ir 'Enhiii.iiiii. W. N. 1873, 28; Amlrcins v. Bi'haniuai, W. X.' IHd!), SO ; Tfd 
 V. Barloii; 3 I). .1. & S. 42() ; Mason v. Scieii, 2 Chy. Ch. 30 ; Miql'utl v. ;/(;(/,■, 
 (5 U. C. L. J. !)4 ; Simmers v. Kifi, 21 (ir. 2H!I ; but where tiie apiplieaiit'liac 
 neglected to move to vary the minutes in the usual way, the amendiiiciit •vill 
 only be granted on payment by the ap])licant of all costs : /'< Sirii-i\ Mdlnrw 
 Siv'iri', 3(> Ch. D. 23!) ;' 53 L. t. N. S. 205. In eases of clerical mistakes, or 
 errors arising from any accidental slip or oinission, a judgment or (jrdcr may 
 be corrected on motion, witiiout atjpeal : Ititli- 7S{). So also a judgiiiciit may 
 be amended on motion where it has been obtained by default: sec A/i'm' 
 V. K/iiic, 3 Ciiy. Ch. 70 ; or on pmci/ie : .\'f//rs v. Vnnthihc, 17 (Jr. 11. 
 
 Kej^'istrars 
 may con- 
 fer. 
 
 When 
 
 .iudements 
 settled by 
 Dep. Reg. 
 
 together 
 
 in 
 
 settling 
 
 TOO. The Registrars may confer 
 minutes of judgments. 
 
 T6^» All judgments delivered at the place of trial otiiw 
 than .'Toronto, shall be settled when necessary by the 
 Deputy Registrar, Deputy Clerk or Local Registrar, at the 
 place of trial ; subject to the right of any party affected to 
 apply upon notice to the other parties interested to one of 
 the Judgment Clerks, or lo the Judge, to vary the minutef*. 
 
 Appoint- 7tt3. No notice of settling minutes, or passing a jndg- 
 
 Hettiemin- meut or Order is to be given unless by direction of the 
 
 wdMs,^'"*"' officer by whom the judgment or order is to be settled, nor 
 
 issind!^° until the proposed minutes of the judgment or order have 
 
 been prepared by, or delivered to the officer by whom the 
 
 same is to be settled ; the notice (where the officer deems a 
 
 notice proper) is to be by an appointment signed by him, 
 
 a copy whereof is to be served ; the proposed minutes shall 
 
 remain in his office for inspection until settled or passed, 
 
 and any party may take a copy thereof. Chy. 0. 12, 596. 
 
 The Registrar, or otiier officer, may dispense with notice of settling or 
 passing if be think fit ; but excejjt where the order vv judgment is simple, notice 
 IS usually required t() be given ; tile minutes must be first pre|»art'(l, and left 
 with the Registrar, or otlier officer (.see lixlr 7((] ), and an aitpointni'iit obtained 
 from him : see Huh 750 note. 
 
 An apiKiintment served one day for the next is t^utficieiit : Ri' (.'liriKtmuf, 11' 
 Beav. 510. 
 
Ue (.'liriiiltiKif, 111 
 
 ENTRY OP JUDGMENTS AND ORDERS. 
 
 649 
 
 763. Where a notice is given to settle minutes, or to ^^^VL. 
 a judgment or order, and the party served attends propodut 
 
 thereon, but the party giving the notice does not attend, ^he^re 
 or is not prepared to pr'>ceed, the officer settling the judg- makes de- 
 ment or order may proceed ex parte to settle the minutes, ^"""^ 
 or pass the judgment or order, or may in his discretion 
 order the party giving the notice to pay to the other party 
 the costs of his attendance ; or if a party served asks for 
 delay, the officer may grant the delay on such terms as he 
 thinks reasonable as to payment of costs or otherwise. 
 Chy. 0. 13. 
 
 Wluu'e t'itluT piirty does not attend, it would seem that the offic<>r is not 
 justifie(i in proceeding ex pnrtc until the lajjse of a half an h(>ur from the time 
 appointed ; I'ldi: 481. 
 
 8. Entry of Judgments and Orders. 
 
 7tt4. Every judgment whether pronounced by the Court .Ju(i«meut 
 or signed by default shall be drawn up and signed by a nonncea in 
 Registrar, Local Registrar, Deputy Registrar or Deputy ^'°'"'''- 
 Clerk of the Crown, as the case may require. J. A. Rule , 
 
 %l^, first part. 
 
 
 V- 
 
 '/. 
 
 765. Every judgment pron. ..need by the Court shall be pate of 
 dated as of the day on which such judgment is pronounced, '"' ^'"^" ' 
 and shall take effect from that date, unless otherwise 
 directed by the Court or a Judge, [and shall also bear upon 
 its face the date upon which it is signed.] See J. A. Rule 
 326. 
 
 {a) Every judgijcnt signed by default shall be dated on 
 the day on which it is signed. *SVe J. A. Rule 327. 
 
 The words in hrackets are new. 
 
 Otlierwi.se the same as the first part of Kng. R. 187'), O. 41, r. '1. The 
 R«U- of 188;5 {R. o71), introduces a i)rovision for ante-dating or post-dating a 
 jiulgment by leave. 
 
 See RHkm\, and Winkle y v. Wink/ri/, 44 L. T. N. S. 572. 
 
 This Rule (Iocs n(jt a|)ply when the judgment itself regidates the entry : 
 MclMren V. Canaild Central, 10 P. 1{. 328, where the judgment was, ''' T 
 liirect judgment to be entered after the oth day of Hilary Sittings for 
 S'lOO.OOO." 
 
 Where a judgment is varied by a Divisional Court the judgment should be 
 iiitered as of the date on which the Divisional Court pronounced judgment : 
 IktkettwU. T. Jtii. Co. 12 P. K. 377. 
 
 Orders in Chambers should be dated on the day on which they are finally 
 made : Ashlen v. T^'i/loi; 27 W R. 22S. 
 
 . In Limn V. Tweddrll, 44 L. T. N. S. 785 ; oOL. J. Chy. 571 ; 17 C. L. J. 3H7, 
 it was held, that where dissolution of a partnershij) was asked, it should be 
 dcoreeil fnnii the judgment, not from the issue of the writ. 
 
 
 
 (U 
 
 /' 
 
 /I t < / 1" * 
 
 a^c^-,.^ /:i 
 
 S^3 
 
 M-e * ^/t. ^"t- 
 
 . tT^-^-* 
 
 /<;^ , s« e. 
 
 y 
 
"iTTw^i'mm 
 
 650 
 
 Bules 
 766-770. 
 
 Forms. 
 
 Immediate 
 judgment. 
 
 JUDGMENT. 
 
 764S* The forms in Part X. of the Appendix maybe 
 used for judgments, with such variations as circumstances 
 may require, J. A. Kule 325. 
 
 This Rule is identical with the last sentence of the Eng. R. 1875, O. 4, 2 r. 1, 
 (1883, R. oOK). Tlie English Rule also provides for the entry in a book, and 
 for a copy of the pleadings being delivered to the officer by the j)arty entering 
 the judgment ; the English practice being that pleadings are not filed in the 
 first instance, but simply delivered l>etween the ijarties. Th(> practice in this 
 Province has been to tile them; and this is still the practice here under the 
 new system : Hide 3!)8. 
 
 For form of judgment against executors : see Hui/ck v. Proctor, 10 P. R. 25. 
 
 An order made bjy consent, and ni>t with the sanction or direction of the 
 Court, should contain a statement on its face that it is by consent : Michel \; 
 Mutch, 34 W.R. '251 ; 54 L. T. N. S. 45 ; 55 L. J. Cliy. 485. 
 
 767. In all cases the judgment pronounced by the Court 
 may be signed and entered forthwith, unless otherwise 
 ordered. New. 
 
 affid ^it" 708. Where it is provided that any judgment may be 
 «tc. ' signed upon the filing of any affidavit or production of any 
 document, the officer shall examine the affidavit or docu- 
 ment produced, and if the same be regular and contain all 
 that is by law required, he shall enter judgment accord- 
 ingly. J. A. Rule 328. 
 
 Identical with the Eng. R. 1875, O. 41, r. 4, (1883, R. 575). 
 
 Entry on 769. Where any judgment may be signed pursuant to 
 certiflcate. auy oi'dcr or certificate, or return to any writ, the produc- 
 tion of such order or certificate, sealed with the seal of the 
 Court, or of such return, shall be a sufficient authority to 
 the officer to sign judgment accordingly. J. A. Eule 329. 
 
 Identical with the Eng. R. 1875, O. 41, r. 5, (1883, R. 573). 
 
 •Orders ob- 
 tained on 
 condition 
 deemed to 
 be aban- 
 doned so 
 far as bene 
 flcial to 
 party ob- 
 taining 
 unless con- 
 dition oei- 
 formed. 
 
 770. In all cases where a person or party obtains a 
 judgment or order from the Court, or from a Master, upon 
 condition, and fails to perform or comply with the condition, 
 he is to be considered to have waived or abandoned the 
 judgment or order, as far as the same is beneficial to him- 
 self, and any other party or person interested in the matter, 
 on the breach or non-performance of the condition, may 
 either take such proceedings as the judgment or order in 
 such case may warrant, or such proceedings as might have 
 been taken if the judgment or order had not been made. 
 Chy. 0. 196. 
 
 Where a pliiintiff gave notice of triiil for 2nd October, and on 23rd 
 Septeml)er the defendant obtained an order j)ostponing the trial on iiayment 
 of costs, it was held to be a conditional ordernot staying plaintiff's proceedings, 
 
ENTKY OF JUDGMENTS AND ORDERS. 
 
 651 
 
 and one which the defendant was at liberty to abandon without paying any Rules 
 costs except those of the application ; Allen v. Mathers, 9 P. R. 477 ; Pugh v. 771-774. 
 Kern, 5 ^l. & W. 1C4 ; Brega v. Hodgson, 4 P. R. 47 ; Horton v. WestminMer 
 (,'omm(SSion(T«, 7 K.x. 911. 
 
 771. It shall not'be necessary in any judgment or order 
 to reserve liberty to apply, but any party may apply to the 
 Court from time to time as he may be advised ; and where 
 any judgment or order directs the payment of money out 
 of Court, it shall not be necessary to direct that a cheque 
 be drawn for the purpose. Chy. 0. 186, 
 
 It is said that all orders of the Court carry with them in tiremio lil)erty to 
 iijiply to the Court, tier Fry, J., Frit: v. Hobson, 14 Ch. D. 042 ; 42 L. T. N. S. 
 225. But this liberty was JK^ld not to be implied in orders of a final nature : 
 Pairicew Wil!iam>!, 23 Ch. D. 353; 48 L. T. N. H. i*{>i<; nor, in favour of 
 defendant, in an order dismissing an acti(ni, except for the purpose of enforc- 
 ing the terms of the order : Jfuathi/ v. Link, 2(5 Sol. .Tour. .59. 
 
 Where costs of an interlocutory motion were reserved " until the hearing or 
 other final disi)osition of the cause," and an order was subsequently made 
 allowing a demurrer to the plaintiff's bill for want of equity, but the costs of 
 the interlocutory niotiini were not then asked for, it was held that a subse- 
 quent aiiplication might be made to tlie Court to amend the order by directing 
 the allowance of the costs reserved : St Michiier,i Colleiie v. Merrick, 2(i (xr. 21(> ; 
 IS C. L. J. 130 ; Vinei) v. Chaplin, 3 I). (}. & .T. 281 ; Fritz v. Hoimm, 14 Ch. D. 
 m ; Blaken v. Hull, f)(> L. T. N. S. 400 ; and see Ousnc'l v. Jlishop, 38 Ch. D. 
 
 Liberty to 
 apply, need 
 not be re- 
 served. 
 
 Costs re- 
 served to 
 trial may 
 be subse- 
 quently 
 disposed of. 
 
 772. Every judgment, shall be entered at full length in 
 a book to be kept for that purpose*^ _^< ^'^^ 
 
 : f ■/ 
 
 -fy C^-i /-»»*'•<•-< 
 
 Entry of 
 judgment. 
 
 Orders of 
 course, and 
 orders ob- 
 tained ex 
 parte, not 
 to be en- 
 tered 
 uuiess 
 directed. 
 
 Lost order, 
 may lie re- 
 drawn. 
 
 773. No order of course, and no order obtained ex parte 
 and not being of a special nature, is to be entered in full 
 unless so directed by the Court or a Judge ; but this pro- 
 vision is not to be construed as applying to judgments, 
 orders in the nature of judgments, or to final orders for 
 sale, or foreclosure. Chy. 0. 195. 
 
 See Ruh's 774, 991. An order of which there was no entry, and of wliicli the 
 original was lost, was directed to be redrawn : Ex parte Dean of Ht. Paul's, 18 
 W.R.724. 
 
 Inasmuch as this Pule expressly jjrescribes that cert.ain orders ai'e not to be 
 entered in full, it woidd seem to follow that all orders which do not come within 
 the class mentioned must lie so entered. This is in accordance with the former 
 practice in Chancery. 
 
 774. No orders of course, or orders made in Chambers, pliers re- 
 are to be entered in full, except : beeinered 
 
 Judgments ismied upon Pnecipe ; bew!'*"'" 
 
 Judgments against Infants ; 
 Orders declaring persons Lunatics ; 
 
 " for Administration ; 
 
 " for Partition ; 
 
 " for the Sale of Infants' Estates ; 
 
li'-'T 
 
 ■ M 
 
 JuflgnientK 
 and orders 
 to bo en- 
 tered. 
 
 652 JUDGMENT. 
 
 ris^776 Orders for Payment of Money into or out of Court ; 
 
 " for Foreclosure or Sale ; 
 
 " of Revivor ; 
 
 Vesting Orders ; 
 and such other orders as may from time to time, in any 
 particular case or otherwise, be directed to be entered. 
 Chy. 0. 594. 
 
 Jiulginents for foreclosure, or siilc, in mortgage suits, anrl rjrders for atlniiii- 
 istration, or partition, when pronounced in Clmmljers, nuist be druwn up a< 
 judgments and lie entered in the judgment book either of the Registrar of tlip 
 Division in which the action is pending, or of the i)ro)ier local officer in tin- 
 same manner as other judgments : Itidf 5t(). 
 
 The other orders, not being judgments, t>numerated in this Hide are eiifTwi 
 by the lOntering Clerk in Chambers. 
 
 Where an order, which had not liei'n entered, was lost, it was directed to be 
 I'edrawn : K.c parte J)ean of S( I'i(i//'.\ 18 W. R. 724. No proceedings can pro- 
 perly be taken upon a judgment or order recpiired to be entered, until it has 
 i)een entered : see /iu/ldni v. Tumliiisnii, 48 L. T. N. S. 515. But where an 
 administration judgment had been issued before being entered, and was suhse- 
 (puaitly entered after i)rt)ceedings had been taken imder it, such proceedings 
 were upheld ; lif Marji/ii/, Mm-plnj v. yircn, 11 P. R. 321. 
 
 Entering. 773. The Entering Clerk is to note in the margin of the 
 judgment or order book the day of entering a judgment or 
 order, and is at the foot of the judgment or order to note 
 the same date, and the book in which the entry has been 
 made and the pages of such book, Chy. 0. 32. 
 
 (iBueral 
 form of 
 judgment 
 for fore- 
 closure or 
 sale. 
 
 .ludgmeuts 
 under 
 •Judicature 
 Act for 
 forecloBuro 
 or sale, 
 effect of. 
 
 9. FOUM OF JUUGMKNTS AND OrDERS, EtC. 
 
 770. .Judgments for foreclosure or sale, where a refer- 
 ence is required, are, after the proper recitals hitherto in 
 use, to direct, in general terms, that all necessary inquiries 
 be made, accounts taken, costs taxed, and proceedings had 
 for redemption or foreclosure, {or for redemption or sale, 
 as the cane may he) and that for these purposes the cause 
 is referred to {naminci the Master) ; and a judgment so 
 expressed is to be read and construed as if the same set 
 forth the particulars contained in Rules 124 to 134 and 
 Rule 353. Chy. 0. 441. 
 
 .hulgments for foreclosure, or sale, snice Tin Jinticdtiirr A 
 aiithorized to be drawn in a similar form to that im-scribed by ( 
 from which this Itidf is taken : see App. Forms, Xos. 182, 18.S 
 Rides ilid not (;xpres.sly state that judgments so worded were to ' 
 which Chy. O. 441 stated they should have, but in Afchninjidl 
 P. R. 248, it was held that such was tlie effect of judgments so d 
 addition to the ])rovisions of the Chy. Ords. 442-454, there 
 incorporated in all .such judgments tlie further provisions contaii 
 /f «/*'.< 331 , 33t>, so far as api)licable to each i)artien]ar case. W 
 ordered, origiiuil Ride 331 provided that the Master might 
 auction, private contract, or tender, as he might think best. 1 
 
 et have been 
 liy. Ord. 441, 
 Tlie f I inner 
 have the effect 
 V. Liiidsaji, 10 
 .rawu : .iiid in 
 was also now 
 lied ill original 
 lien a sale w;u< 
 sell by imblic 
 le niiglit iilso, 
 
Itile are entiTwi 
 
 Rules 
 
 777-779. 
 
 In special 
 cases. 
 
 FORM OF JUDGMENTS AND ORDERS, ETC. 653 
 
 at tlie nitetiiig lieki for settling tlie advertisement, fix a reserved bid which 
 Mus required to be notified in tlie conditions of sale. The Master was also to 
 settle all necessary conveyances, in case any infants, or lunatics, were interested, 
 or the parties differed, (-)riginal Jitile 330 also provided for reconveyances, and 
 delivery of dix3unients, by any (tarty redeemed. 
 
 Wliere the circumstances tif the case are special, a judgment in tlie ordinary 
 fenii prescribed by this Rule would not l^e a[)proj)riate. Thus, where a tender 
 was pleaded a special inquiry was directed un this[)oint, and further directions, 
 and costs, were reservt.'d : /'('<'/',v v. Allen, 1!» (ir. !W. Ho also where the defen- 
 dant plei'.ded payment in full, costs were reserved : Udnderham v. iJcUrassi, 2 
 (rr. Vi'). In such cases, this must still be, done, or the judgment must provide 
 ftir the dismissal of the ac ' m in case the Master shall find in the defendant's 
 favour. So also, where the defendants were rival claimants to the equity of 
 rt'demiition, special dii'ections were inserted'" ' e decree: Iluiiiseny. ThiHnpmni, 
 ,s(;r. 371 
 
 Wiien infants are defendants, a judgment of foreclosure nmst also ordinarily 
 reserve a day to show cause : see Rule 717. 
 
 It is for the plaintiff himself to determine whether or not a reference is 
 rt!:iiiire(l. This will depend upon whether or not there are any subsequent 
 inju'.n'n'auces, of tliis he must satisfy him^elf by getting the proper certificates 
 fr im the proper officers : see Itule 125. Where there are no subsecjuent incum- 
 brancers, the account siiould be taken on entering the judgment, if the plaintiff 
 take a reference to tlie Master unnecessarily, he cannot recover the extra costs 
 ai occaiiioned ; lliunilton v. Ifnoanl, 4 Gv. .581 ; /'iinli/ v. I'arks, 1) P. R. 424. 
 
 The reference, if diri'cted, .should be made to a Master in the county where 
 tlie writ issued : Mwiu-<i v. Owi/iiiie, 3 Gr. 310. But the reference may after- 
 wards lie changed on motion, for sufficient cause. 
 
 Where the jjlaintiff took a judgment without a reference, and, after obtaining 
 a final order of foieclosure, discovered that there were subsequent incumbrances, 
 the Cuurt refused to make a supplemental judgment directing the usual 
 accounts and inquiries against the incumbrancers, but amended the judgment 
 liy inserting the usual reference as to incuml)rancers which had the effect of 
 minifying the iirevious proceedings : Wili/iri.s v. Crawford, 12 P. R. (wS. 
 
 T77. Judgments and orders are to be divided into con- orders to 
 venient paragraphs, and such ;-aragraphs are to be num- into para- 
 bered consecutively ; and where accounts are directed to be ^'^"'P''''' 
 taken, or inquiries to be made, the direction in that behalf 
 may be in the form No. 187 in the Appendix, with such 
 varifttion as the circumstances of the case require. Chy. 
 0. 187. 
 
 Day to 
 show cause 
 
 Ueference 
 to take ac- 
 count, 
 when un- 
 necessarv. 
 
 Keference, 
 when to be 
 directed. 
 
 TTH. In all judgments and orders, sums are to be stated su»w to be 
 in dollars and cents. Chy. 0. 188. douarsand 
 
 * cents. 
 
 77W. Every judgment or order shall show on its face the 1^1^°^ 
 (lay of the week and month on which it was given or made, 
 and (except judgments signed by default or upon an order 
 tor leave to sign judgment and orders of course), shall show 
 the name or names of the Judge or Judges who gave or 
 made the same. See Rules H. C. J. viii. 
 
i. 
 
 664 
 
 Rule 780. 
 
 Correction 
 of miHtakes 
 in judR- 
 nieutsand 
 orders. 
 
 
 
 'O 
 
 
 ^ *• 
 
 
 % 
 
 
 
 What kind 
 
 % 
 
 of errors 
 
 
 corrected. 
 
 JUDGMENT. 
 
 10. Variation of Judgmknts and Orders. 
 
 TSO. Clerical mistakes in judgments or orders, or errors 
 arising therein from any accidental slip or omission, may 
 at any time be corrected by the Court or a Judge on motion 
 without an appeal. J. A. Rule 838. 
 
 Identical with Kng. R. Dec, 187!), R. 5 (1S83, R. 3I!»), and substantiiilly the 
 same as Eng. Cliy. (). 2.'?, Rule 21, as to which sue Morgan Chy. Act« and 
 Orders, 4th ed., 4!t3 ; Seton, 1547-8. 
 
 A record when ))assed and entered, can only be amended as provided bytiie 
 Rii/fs (,f Court : Jilaka v. Harrci/, 2!) Ch. D. 827. 
 
 Where a rejKjrt or certificate is varied, it is not the practice to make any 
 actual physical alteration in tlie document : see Fox v. Biarlhck, 45 L. T. 
 N. S. 4(i!t'; 4() L. T. N. «. 14.5. 
 
 This llulc is based \\\v)i\ and supersedes Chy. Uen. Order 335, whicliwasas 
 follows ; 
 
 "335. An application to amend an order which has not been drawn up in 
 conformity with the judgment pronounced so as to make tiie same coiiformaWc 
 thereto ; and an .application to correct any otlier clerical mistake in an order, 
 or an error arising from an accidental slij) or omission, may he made in 
 Ch!iml)ers on petition, and the Court may giant thc^ same if under all tlie 
 circumstances the Court sees fit." 
 
 Under that Order a direction necessarily consequent uj)()n the judgment, 
 but omitted from tiie decree drawn up miglit be su|)j)lied, sucii as a direction 
 (now unnecessary, see /'(f^'107), to settle a conveyance : Mcffntl v. Hudi, li U. C. 
 L. J. !)4; Trrvc/iKtH v. Chdrtci; DBeav. 140; (.ra reference as to title, inadecree 
 for specific performance : Hwihix v. Jonr.f, 2(1 J5eav. 24 ; and an error in anordcr 
 arising from an error in the chief clerk's certificate which h.ad escajicd tiie notice 
 of all parties : h'rki fKlc// v. Kckcrdcji, W. N. 1884, 133 ; a foreclosure judgment 
 in the form without a reference as to incumbrancers, it having t)eeii discovered 
 that tiiere was an incumbrancer ; Wiliinux v, Cniirfont, 12 P. K. (158; or other 
 mistake or slip : Turner v HoUitKoii, '.) Bi'av. 205 ; Ankcw v. Peddle, 14 Sim. 3()1 ; 
 and see Etutie v. MeKiren, 14 Gr. 404 ; see also A> iidrte Strni(ilit, l(i W. R. fifil ; 
 AndrrirK v. Bnhdnnou, \V. I^. 18(i<J, 80; JefeniK v. Smith, 11 W. K. 47i); Re 
 G/itnville'i^ Trust)-, \V. X. 1878, 21 ; Wurman v. ^eal, W. N. 1871, 241 ; He 
 Tiel, 11 W. R. 351; but not any term which could only have been intro<lucwl 
 by express direction of the Court, wliich was not given: -Bird v. Hiath, (i Ha. 
 230; Whitehfud v. North, Cr. & Ph. 78; nor any sulistantial addition except 
 by consent : H'i7/m v. I'lirkinmu, 3 Sw. 233 ; but see Rule 781. 
 
 The applicatiim must, as a general rule, be on notice : Itadenhiird v. Rtjj- 
 nolds, 11 Gr. .521. 
 
 An error was corrected under this Itiile, not liecause it did not correctly carry 
 out the intention of the Court at the time, but because the p.arties vere mis- 
 taken as to tiie fact upon which the judgment as it stcMid was founded : Hnrbr 
 V. Purvis, 31 Sol. Jour. 155; .50 L. T. N. S. 131. But in Klinck v. OnUim 
 Loan A- I. Co., befcn-e the Divisional Court, Ch. D., 28 -Tunc, 18811, it was con- 
 sidered th.at a .Fudge had no power to amend liis judgment, after it liad lieen 
 formally issued, even <m the gr und of mistake, and an order made under such 
 circumstances was vacated, and .i new order to the like effect was made by the 
 Divisional Court. 
 
 Amotion to amend a decree in wiiieli the ple.adings and evidence, or any- 
 thing beyond the judgment pronounced, and the decree, is required to be 
 looked at, must be made in Court : Liipi^ v. L<ii>/>. 3 Chy. Ch. 2Ii4 ; 4 Chy. 
 Ch. 3. As to how far the judgment may bo varied : see lle.ndrie v. Baittie, - 
 C. L. T. 102, and notes to Ride 75!t. 
 
 In Livini/stone v. Woo(f, 20 (ir. 157, a decret; directing an iicc(/unt was 
 jimended, by strikinnr out a declaration that tiie jdaintiff was entitled to 
 certain credits which hacJ not formed a substantive part of the judgment, sua- 
 
[)rovided by tlie 
 
 5, which was us 
 
 ,lenlti(r.itv.Rty- 
 
 ulrir V. Btdttif, 
 
 VARIATION OF JUDGMENTS AND ORDERS. 
 
 655 
 
 to make the decree conform ti) the actual jiuljfiuent, and enable the credits to Rule 780. 
 lie furtlier investigated in tlie Master's ot^ ". 
 
 A consent, judgment or order may Ihj amended by striking out terms not 
 consented to : McrclianCit Hunk v. (intnt. 3 Cliy. Ch. (it. 
 
 On motion under the corresponding English Rule, an m-dcr n;iide ''.nderthe 
 ■Settled Estates' Act was varied, so as to dispense witli consents ot tenants for 
 life to leasing powers granted : Rf Jii/rii's Tru'ttK, 30 \V. K. 7H. 
 
 Where an order had iHten made on the netition of several persons, two of 
 whom had not authorized it, the Court, under tliis Rule, amended the order by 
 strikin" out the names of these two as petitioners, and treating them as not 
 hivviiig heen served with the petiti(ni : Re Suvwje, 15 Ch. D. ooT. 
 
 Wliere the costs of a motion for an interim injunction having been reserved Sui)))lyin(,' 
 to tlie trial of the action, the pLiintifT's counsel omitted to ask for them at the omissions, 
 trial, and they were not provided for, it was held that the omission might be •■^** ^° costs, 
 supplied under this Rule : Fritz v. Hobnon, 14 Ch. D. .542, 5(11. Ho, where 
 the .Tudge inadvertently omitted to make any order as the ct)sts of the action : 
 Hdrdii V. J'ickur,!, 12 P. K. 428. 
 
 See for ainciidment of orders so as to provide for costs omitted by mistake : 
 Bhtkniv. Hull, rM L. J. Chy. 5(W ; 5() L. T. N. S. 4(»0; Viiini w' Chaplin, S 
 De(}.'& J. 2.S2; St. Aficliu(l\i Collcjf v. Merrick, 2ti (Jr. 21 C. 
 
 In Luwrir v. Lctx, 7 App. Cas. at p. .34, Lord I'eiiz.ance said : " I cannot Varying 
 doubt that under the original powers of the Court, ((uite independent of any JiKlRinent 
 order that is made under the .Tudicature Act, every Court has the power to ^'f-'"-*'?' °"' 
 vary its own orders which are drawn up mechanically in the registry, or in the JJi fug *'" 
 ntficeof the Court, to vary them in such a way as to carry out its own meaning, court, 
 and where language has been used which is doubtful to make it plain.'' Thus 
 an alteration may be made so as to make the record truly cont.ain what was 
 adjudged : Re Swire, Mellur v. Sirire, 30 Ch. D. 230, and if notice to vary is 
 not ^iven, and the Registrar notified thereof, before he issues the order, the 
 applicimt may have to pay costs : S. C. 53 L. T. N. S. 205. 
 
 After a judgment by consent has been passed and entered, it cannot be after- Mistake. 
 warfs amended, except for reasons sufficient to set aside an agreement on the 
 ground of mistake: Atti/.-d'en v. Tumliar, 7 Ch. 1). 3HS ; Davis v. Duris, 13 
 Ch. D. 8()1. ]}ut where parties had consented to .a judgment establishing a 
 will which afterwards turned out to be a forgery, it was held that they were 
 not estopped from shewing tho forgery, and setting aside the comi)roniise judg- 
 ment on that ground : Priestiiuin v. fhoiuas, P. D. 210. 
 
 An interlocutory order consented to by mistake m.ay be di.scharged, tlunigli 
 the mistake was on one side only : Mullim v. Hoirtll', 11 Ch. 1). 7(13 ; and see 
 Gilbert v. Endean, Ch. D. 259 ; but not because one of the parties finds it 
 less beneficial than he exjiected : Couninean v. Loudon F. lux. Co., 12 P. R. .512 ; 
 Powell V. Smith, L. R. 14 Efj. 83 ; Midland v. Johnston, (i H. L. C. 811. 
 
 NVliere an order has been made by consent, the consent given without mistake Consent 
 is binding, .and cannot be withdrawn, even before the order is drawn up: Harvey order. 
 V. Croiidon, 2()Ch. D. 24!t ; over-ruling S. ('. W. N. 18S.S, 222; EImhv. Williamg, 
 52 L. T. \. S. 3i); Re Went Devon, etc.. Mines, 38 Ch. 1). 51, ,55; Holt v. Jesse, 
 •JCh. D. 177, and Eoficrs v. Horn, 20 W. R. 232, in which, as reported, it was 
 held that the consent might be withdr.awn before tho order was passed and 
 entered : see Williams v. Meakins, Crump. & Eviins Chy. Pr. 5()2. 
 
 After an order made declaring that children took per stirpes, it was discovered 
 that this was contrary to .authorities, .and by arrangement the m-itters 
 mentioned to the Court again, .and an order altering the order so as to deciare 
 that they took per capita was made : Re Blackwell, Bridamait, v. Bl ickwell, 
 W. N. 188(i, 07. 
 
 .A^^ ^vhere the decree did not direct the payment of costs " forthwith," and 
 It did not ajipear that such a direction was intended by the judgment, an apjili- 
 cation to amend was refused : Wilson v. Robertson, 3 Chy. Ch. 100. 
 
 An order arr.anged by consent between the parties, and not directed by tiie 
 (ourt. should show on its face that it is bv consent : Michel v. Mi'tc'h, 34 
 
 ('Ourt, should show on its face that it is by consent : Jj 
 W. R. 251 ; 54 L. T. N. S. 45 ; 55 L. .T. Chy. 48.5. 
 
 HUH 
 
 m 
 
 i 
 
 1 
 
 . HIH^^^^^^H 
 
 
 
 
 Wt 
 
 i 
 1 
 
 
 
656 
 
 RuJes 
 781, 782. 
 
 Recousirt- 
 eration liy 
 the Ju(l(;o. 
 
 JUDGMENT. 
 
 CimiiHi'l has full autlioritv to comproiniHe an action at the trial : J\f(itthnn\i 
 Miin^tir, 20 (I. ]}. D. 141 ; but see Walt v. C/ark, 12 P. R. 3511. 
 
 A Judge can always reconsider his decision until the judgment or (mini* 
 drawn uj): Itr St. Naznirc Co., 12 t'h. D. !>. 91 ; J»/»7/fT'.<t Cww. 3 Cli. 1). (itll ; 
 Atti/.-(Jiii. V. Timilhu; supra ; Canatla Land, r/c, C'n. v. /)i/miit,'J Out. .Ml; 
 (,'li(.si/i>ir V. (ilafii/iin; II). ; He tivjlirhl and Wattn, 20 il. ]J. ]). at \>. m' • R, 
 Adam. Kiitim, 3(1 Ch. 1). 21ti». 
 
 A judgment entered on pro'cipc cannot be amended on ajj^lieation in Chan;- 
 bers, by inserting therein any si)ecial direction which coidd not jiroiH'rly !» 
 included in a judgment issued on prwcipv : Kosk v. Vadi-r, 3 Chy. Cli. LW. 
 
 Liberty to api)ly is implied, without being expressly i-eserved : Frit: v. IM- 
 non, 14 Ch. D. r)42, 501, but only in orders not final: I'cnricc v.Williumii, 
 23 Ch. I). 3.'")3. It is not implied in favour of a defendant against wluim thc' 
 actioti lias been dismissed, e.\cei)t for the purpose of enforcing tlie temis of 
 the order ; JluiUk;/ v. Link, 2(i Sol. .lour. 5!). 
 
 As to amending judgment.?, by moving to vary the minutes, see notes td 
 Jiidt 7r>'.). 
 
 An order made without jurisdiction, if not api)ealed against, must stand : 
 Went V. iJowniiuin, 27 W. R. (i!)7 ; and a de facto judgment, wliicli has not 
 been set aside, cannot be objected to, as having been rendered ultra vim, in an 
 action of trespass for acts done under it: see Jiruce v. Canadian Bnnk of 
 Commerce, before Osier, J., 2()th September, 1882; Forester v. Thrasher, 'J 
 P. R. 383. 
 
 mm?"asto '^^^^ Where a judgment or order as drawn up requires 
 matters on amendment in any other particular on which the Court did 
 "^^"'' not adjudicate, the same may be amended in open Court on 
 
 petition without an appeal, if under all the circumstances 
 
 the Court deems fit. Chy. 0. 336. 
 
 Where the application was made after the time within which the cause 
 could have been reheard without leave, it was held that the applicant need 
 not apply for leave to move, but must, nevertheless, make out stich a case a.« 
 would be necessary, in order to obtain leave to rehear after the time had 
 elapsed : 0'/Jo7iiighne v. Ilemhroff, 19 Gr. 95. 
 
 Amend- 
 ment of 
 judgment 
 on prtrcipe 
 
 Li'. I'tyto 
 apply. 
 
 Order 
 
 made with- 
 out juris- 
 diction. 
 
 there was 
 no adjudi 
 cation. 
 
 Applica- 
 tion by 
 petition, to 
 impeacli 
 judgments, 
 etc. 
 
 Onpetition 
 under Cliy. 
 Ord 330, se- 
 curity re- 
 quired. 
 
 7S2. Any party entitled to the variation or reversal of 
 a judgment or order, upon the ground of matter arising 
 subsequent to the making thereof, or subsequently dis- 
 covered, or to impeach a judgment or order on the ground 
 of fraud, or to suspend the operation of a judgment or 
 order, or to carry a judgment or order into operation, is to 
 proceed by petition in the cause, praying the relief which is 
 sought, and stating the grounds upon which it is claimed. 
 Chy. 0. 330. 
 
 In England, where no .such practice as that prescribed by this Hide is ni 
 force, it is held by analogy to the former practice, that in order to set aside a 
 judgment obtained bj fraud, anew action must now be brought: f7"W)' v, 
 Lliajd, Ch. D. 297. 
 
 Formerly a ijenson presenting a petition under this Chy .Ord. 330, from which 
 this Rule is taken, in a case where formerly a bill of review, or a bill in the 
 ■ nature of a bill of review, should have been filed, was required to give secunty 
 for costs : .Sadlier v. Dtn/le, before Proudfoot, V.C, 19 and 20 Nov. 1877, and see 
 Beames' Orders, pp. 314, 306, and see Canadian Order in Chy. 12th .Inly, 1844, 
 Ix.xix ; but see Chy. Ord. 1 ; but it would seem that no such security is now 
 required to be given unless expressly ordered. 
 

 s, set' liotps to 
 
 VARIATION OB' JUDGMENTS AND ORDERS. 
 
 667 
 
 Petitions to 
 suspend op- 
 eration of 
 judgment. 
 
 Leave to filn a jKitition under this Rule is not necessary in any case ;■ Dwjgan Rules 
 V, McKaij, 1 Gliy. Ch. 380. 783, 784. 
 
 For cases in which petitions have been presented under Chy. Ord. 31.'0 : see 
 Bank (>f Upper Vauada v. Wdllaee, 1(5 (ir. 280 ; Broiise v. Slai/ner, 10 L'r. 1 ; 
 Dtmible v. Cnlmur!/ 'l" f- l<- W. Co., 2!) (Jr. 121 ; Maxon v. Sen'fii/, 12 (Jr. 143 ; 
 iidluiM 7')vm/.s v. Ciune.roii, 21 (ir. 70 ; Riibsan v. M'ride, 14 Or. GOG ; 15 
 Gr. .W5. 
 
 Petitions to Impeacb Judgment on the Qround of Fraud.— A bill of Petitions to 
 this kind waN, ))ri()r to Cliy. Ord. 330, proper, where a decree had been obtained iiniieftcli 
 by fraud. Wliere the decree, however, hatl also been affirmed by the House of judHraents 
 Lords, it would st-em to have been necessary that ajiplication should be first °° ground 
 made to the House of Lords for directions : Shedden v. Patrick, 1 Macq. ** "*ud. 
 H. L. C. .53.'), and see Tommey v. White, 4 H. L. C. 313. 
 
 Petitions to Suspend the Operation of a Judgment.— Bills of this kind were 
 fonnerly necessary whenever it was sought to stay the execution of a flecree : 
 f,.(j., where an ap|)eal was pending from the decree. But relief of this kind has, 
 since Chy. Ord. 330, been granted on motion in Chambers, without even a 
 petition: Campk-U v. Edwards, G P. R. 159; Walker v. Mies, 3 Chy. Ch. 418. 
 In anoii cases seoiuMty was generally required to lie given : /''. 'iMie staying 
 proceedings jiending an appeal is discretionary. In a case where the Court 
 refused to stay proceedings pending an appeal from an order allowing a 
 demurrer, it directed that an answer filed shoidd not ' prejudice the appeal ; 
 McMitrmy v. (Iravd Trunk K \V., 3 Chy. Ch. R. 125. 
 
 Petitions to Carry a Judgment Into Operation.— Bills of this kind were 
 aonietiuies necessar>[ where the j)arties had neghjcted to proceed uiK)n the 
 decree, and their rights imder it had become embarrassed by subsequent 
 events, and it was necessary to have them settled by the decree of the Court. 
 SeeMitford I'leiulings, 3rd ed., 75. 
 
 Petitions of Revle.v.— Prior to Chy. Ord. 330, where a party sought to 
 imjieach a decree, either for error in law appearing in the body of tho decree, 
 witlio\it further examination of matters of fact, or in respect of some new 
 matters arising after the decree ; or on new evidence discovered after decree 
 made, which could not possibly have been used when the decree was i)ronounced ; 
 in such cases, whore the decree had been enrolled, a bill of review was filed, and 
 where it had not been enrolled, a bill in the nature of a bill of review was tUe 
 proijcr proceeding. 
 
 When the bill was filed on the ground of error, it was necessary to specifically 
 assign the error complained of, and it must have been an error of law, apparent 
 on the face of the decree, and not a mere error of judgment : Green v. Jenkins, 
 6 Jur. N. S. 515, e.tj. : It could not be assigned for error that any matter had 
 been decreed contrary to the proofs : Mellish v. Williams, 1 Vern. 1G6 ; and see 
 Ride 786. 
 
 Petition to- 
 carry judg- 
 ment into 
 operation. 
 
 Petition of 
 review. 
 
 For cases since The Judicature Act : see Synod v. I)e lilaguiere, 10 P . R. 11 ; 
 Bank of B. K A. v. Western Ins. Co., 11 P. R. 434. 
 
 When l)iU 
 flied on 
 ground of 
 error, error 
 of law must 
 be appo - 
 rent on face 
 of decree. 
 
 78!i. The petition is to be verified by affidavit, and Petition to 
 served upon the solicitors of all parties interested ; and in andferved 
 case a party has no solicitor, then upon the party. Chy. 0. t/es^'ntfr'* 
 
 331. ested. 
 
 See note to Rule 782. 
 
 784. Upon the copy of the petition served is to be Notice to 
 indorsed the following memorandum or notice : " If you do dorsed oa 
 not appear on the petition the Court will make such order ge^ywi. 
 on the petitioner's own shewing as shall appear just, in 
 your absence ; and if this petition is served personally, you 
 j.A. 42 
 
658 
 
 JUDGMENT. 
 
 Rnles 
 78S-787. 
 
 will not receive any notice of the future proceedings on the 
 petition." Chy. 0. 332. 
 
 See note to /Mr 782. 
 
 petition"' "y^S*. Upon the hearing of the petition, the Court may 
 either make a final order, or direct the petition to stand 
 over, with liherty to the parties interested in sustaining the 
 judgment or order to file a special answer to the same ; and 
 may make such order as to the production of further 
 proof, and the manner thereof, and the further hearing of 
 the petition, as the Court deems meet. Chy. 0. 832. 
 
 See note to Unit 782. 
 
 The res|>on(leiit may file affidavitH in answer to the j)etition, without first 
 obtaining the leave of the Court : Kahson v. Wride, 14 (Jr. (iOti ; I,'") (}r. k^A 
 
 Evidence 
 required 
 when re- 
 versal 
 sought on 
 new mat- 
 ter. 
 
 Proof re- 
 quiaite to 
 support 
 bill of re- 
 view. 
 
 T86, Where the reversal or variation of order is 
 sought upon new matter, such proof as would have been 
 requisite upon a motion to file a bill of review must be 
 supplied. Chy. 0. 334. 
 
 See note to .Rm^p 782. 
 
 The rule as to the proof req>iisite u|M>n a nK>tion to file a bill of review was thus 
 laid dovyn in the Privy Council, in lloskimj v. Tcrrji, 8 .Tur. N. S. !t77 : "The 
 rule which we collect from the cases cited in the argument is this, that the party 
 who applies for permission to file a bill of review, on the grf)und of having dis- 
 covered new evidence, must show that the matter so discovered has ctmie to the 
 knowledge of himself and his agents, for the first time since the jM^riod at which 
 he could have made use of it, and that it could not, with reasonable diligence, 
 have been discovered sooner ; and secondly that it is of such a character, that 
 if it had been brought forward in the suit, it might probably have altered the 
 judgment." See also iJ/ft.'cw v. .S^nyy, 12 Gr. 143. 
 
 11. Eniry of Satisfaction. 
 
 satisfac- TSy. In order to acknowledge satisfaction of a judgment, 
 judgments, it shall be requisite only to produce a satisfaction piece in 
 entry of {q^^ ^s hereinafter mentioned, and such satisfaction piece 
 shall be signed by the party or parties acknowledging the 
 same or their personal representatives, and their signatures 
 shall be witnessed by some practising solicitor, expressly 
 named by him or them, and attending at his or their 
 request to inform him or them of the nature and effect of 
 such satisfaction piece before the same is signed ; which 
 solicitor shall declare himself in the attestation thereto to 
 be the solicitor tor the person so signing the same, and 
 state he is witness as such solicitor (provided that a Judge 
 at Chambers may make an order dispensing with such sig- 
 nature under special circumstances, if he thinks fit) ; and 
 in cases where the satisfaction piece is signed by the per- 
 
•:""''Tf 'v-l^f '# 
 
 MOTIONS AGAINST VERDICTS OR JUDGMENTS. 
 
 669 
 
 sonal representative of a party deceased, his representative Rules 
 character shall he proved hy the production of the probate ""*• "*• 
 of the will, or of the letters of administration, to the officer 
 in custody of the judgment. Rules T. T. 1856, 64. 
 
 Set> A|)i>. Form No. 214. The i)laintifI'H Hignature may be dispensed with, 
 and hit solicitor in the caune he uuthorized to acknowledge HutiHtactiun, niKin 
 proof that the Holicitor is authorized by the plaintiff to arrange the claim, and 
 that till' delay in obtaining the iilaintiiT's signature would be projudical ; 
 Rutliill V. ilin',1, 3 U. C. L. J. 14 ; J'auwm v. \Vrujhtman, 2 U. C. L. .1. 184 ; 
 HO also when the amount of the judgment in small and the i)laintiff resides out 
 of the jurisdiction : Bank of Motitrcnl v. i'muk, 'A V. C. L. .J. 32 ; or when the 
 iilaintitf resides abroad and has given his solicitor written authority to acknow- 
 ledge fatisfaetion for him : Ihirlini.t x.Wriijhl, 3 U. C. L. J. 5(). When a satis- 
 faction piece is executed l)efore an attorney of another Province, a certificate of 
 his due admission must be produced, and his signature duly verified : Mi>sn v. 
 hajiUi, 3 U. C, L. J. 74 ; signature Ijefore a uractising attorney of a foreign 
 country is a sufficient comphance with this liulc: Ahernethy v. lieddnme, 6 P. R. 
 162. 
 
 An order to enter up satisfaction will not be granted where it is not clear 
 that the judgment has been satisfied : Lewine v. Sdvnge, 3 U. C. L. J. 8!). 
 
 After the judgment has been satisfied, the plaintiff's solicitor cannot be com- 
 pelled by defendant to procure a satisfaction piece to be executed b}' his 
 elient ; but the solicitor may be ordered to disclose his client's place of resi- 
 denci', .so that the defendant may tender a satisfaction piece for execution, 
 and if the plaintiff refuse to sign it he may be ordered to do so : Carr v. 
 Omer, 2 P. R. 22fi. 
 
 The arrest of one of several defendants on a ca, sa. and his subsequent dis- 
 charpe with the consent of the plaintiff, operates as a satisfaction of the judg- 
 ment, even though the plaintiff at the time of the discharge expressly stipu- 
 lated that his other remedies on the judgment were not to be impaired : 
 Hamilton v. Ilnlcnmb, 7 U. C. L. J. 40 ; where a vendor after recovering judg- 
 ment for his purchase money, subsequently cancels the contract of sale, that 
 operates as a satisfaction of the judgment : Cameron v. Bradbury, 9 Gr. 67. 
 
 ^.. 
 
 788. Every satisfaction piece shall be entered in 
 office where the judgment is entered. Rules T. T. 1856, 65 
 
 12. Motions Against Verdicts or Judgments. 
 
 the Satisfac- 
 tion piece 
 where to 
 be en- 
 tered. 
 
 In England there is a special provision for motions for a new trial in jury 
 0Me,s in the Q. B., C P., and Ex. D., and not in the Chy. D. The Ontario 
 Act does not preserve the distinction provided for by the English Act in the 
 jurisdiction, and consequent practice of the various Divisions. 
 
 789. Where there has been a trial by a jury, any appli- Appiica- 
 cation for a new trial shall be to a Divisional Court. J. A. court** 
 Rule 307. 
 
 . The Eng. R. Dec. 1876, R. .5, was to the same effect. 
 IS different. 
 
 Eng. R. 1883, R. 551, 
 
 This Rale embraces every application for a new trial, after a trial by jury, 
 and therefore includes interpleader proceedings : Cole v. Camphcll, 9 P. R. 498 ; 
 Mimon v. Tucker, 14 Q. B. D. 371, over-ruling Bwstall v. Bryant, 12 Q. B. D. 
 ly^, and applies to cases in the Chy. Div. tried by a jury : Hcspeler v. Beck, 4 
 (j- L. T. 41. 
 
 JB«/es 798 and 799, make provision for motions respecting the trial, or verdict, 
 other than by way of motion for a new trial. 
 
 
660 
 
 JUDOMKNT. 
 
 Rttlsi For tilt! 'litfeivnt KriiiiiuiH on wliiuh ii lu^w trial may li<> Knuitt'd, nic m^tp Ui 
 
 790, 7»1. /iu/r7\i\ 
 
 Ah 
 
 nott't 
 
 in t'l iiuitionH for a m-w trial, whore a ca««' lias Ihh-ii trit'<l without a jury, «■? 
 ;t'H to Jlu/c V!)«. 
 
 Qroundn to 
 be stated 
 in order 
 nini for 
 new tria. 
 
 o» 
 
 Restric- 
 tiona ou 
 new trials. 
 
 ! I 
 
 Grouuda 
 for new 
 trial. 
 
 Misdirec- 
 tion, 
 
 71MK In every notice of motion for a new trial the 
 grounds upon which the motion is to he made shall bo 
 shortly stated therein ; but in case of any omission the 
 Court may permit the notice to be amended and served 
 again on euch terms as are deemed reasonable. H. S. 0. 
 1877, c. 50, 8. 288. 
 
 A notict) of motion for a iw\y trial on the Kromui of iiiiHdirKetinii, ^r non- 
 direction, hIiouIiI state how and in what matter the .Judge misdirect ed, ir tailed 
 to direct the jury : Pfvifcr v. Miilland Kii. Co.; 18 (^. \\. I). '1V.\ ; .l///'/i« v. 
 A'wiWi, 12 P. 1). lit; ; .SV(-/^ V. Crerai; 11 Ont. ty{\ ; Fnili>„,i v. /{rid, VI I'. [{.'M: 
 see 12 Ont. (i()7. Amendnient may be allowed in a |iroi)ei (.ane, but was refused 
 in Furtomj v. Jtcid. 
 
 71H. A new trial shall not he granted on the ground of 
 misdirection or of the improper admission or rejection of 
 evidence, [or because the verdict of the jury was not taken 
 upon a question which the Judge at the trial was not asked 
 to leave to them] unless in the opinion of the Court to 
 which the application is made some substantial wrong or 
 miscarriage has been thereby occasioned in the trial of the 
 action ; and if it appears to such Court that such wrong or 
 miscarriage affects part only of the matter in controversy, 
 [or some or one only of the parties], the Court may give 
 final judgment as to part thereof [or as to some or one only 
 of the parties], and direct a new trial as to the other part 
 only [or as to the other party or narties j. J. A. Rule 311 ; 
 Eng. R. 1883, 556. 
 
 Same as the Eng. R. 1885, O. 3!), r. .3, except the provisions in bruck»a.i, 
 which are taken from Kng. Rules 1883, R. .55(1. 
 
 The following are the grounds for granting a new trial ; — 
 
 1. Im|)rot)er admission, or rejection, of evidence. 
 
 2. The improper non-suiting of the )>laintiif. 
 
 3. Misdirection of the jury, 
 
 4. Perverse verdict, or verdict against the weight of evidence. 
 
 5. Verdict for too small, or too great, damages. 
 
 6. Surprise, and discovery of new evidence : see Arch. Pr. 13th ed., 1210. 
 
 Fonnerly a misdirection by the .ludge in point of law, or tht^ iniproimr 
 admission or rejection of evidence in any materuil matter was, at Law, ground 
 for a new trial as of right. The Common I.iaw Courts hiwl only the jKiwer to 
 grant a new trial of the action generally : see Fannd v. Wal/acr, .S5 L. T. N. S. 
 361. This practice was altered by The Administration of Jimtin Act : fee 
 R. S. O. 1877, c. 50, s. 28!), which contained a jjrovision to the same effect M 
 the present Rule. 
 
 A new trial may now be ordered on a particular question : see also R'dc 312. 
 
 Quan-e whether "misdirection " in the Rule ap])lies to the* case of the Judge 
 ruling that there is no evidence to go to the jury, and therefore withdrawing 
 
'1 
 
 MOTIONS A0AIN8T VBRUICTH OR JIIDOMENT8. 
 
 061 
 
 IIS ill braek^tii, 
 
 theciiti' frmii tlinm, iiiid giviiiK jutl^'iiu'iit for (Ittfcnclunt : >»•(' Hall v. ./(//»■, 43 Rule 791. 
 I,. T. N. S. 411. 
 VViicrc a iH'w trial is moved for on the ground of iniHdircction, tlui oniiH of 
 liDwiiiK that tlu< iiiimlircction did not cauNo a iniHcarriut^eof justiuo, liiw u|H>n 
 till' party mIiowIhj^ canw> : Anthoini v, llnl.itfiiil, 37 L. T. N. H. 433. 
 
 It in not inisdir(>ctii)ii for tlm .luilgc to tell tlict jury liin own opinion on the 
 HHU.' Iiffnnalit^in : Smith \\ Ihirl, 14 <^ 15. I). l(».'), lOH. 
 
 An appeal (Ioi'm not !i<' to tlic Suprcnif (Jonrtfroin a jiidffiiicnt upon iv motiun 
 foraiU'W trial on till' grounil of nii-idir<'(!tion : O'Sii/liniii v. /.ah', !»0. L. T. '2(iO. 
 
 S''').stantial wroii(;f was conMidt-rcd to have oowirrcd where, anioii(?Ht other " Subgtau- 
 tliiiiKM, ina(hiiiMNilile evidence was retieived after objection to it, and waH coin- tial wrong," 
 iniMited on l)V the .Fiidj^e in his ehargu, »w boiuj? important : Hank of Itamilton "'" ", ' 
 V. /.v„„r.s KiOiit, \rM. carriage. 
 
 For other eases as to what amounts to "substantial wrong," see Pickup v. 
 Tkami>f liiMti-mu'v Co., 3 (^ W. 1). o'll ; SliapcoU v. rituiipill, 12 C^. H. 1). 58; 
 Siiift V. Niiiiii, \V. \. IH7H, 21V ; Mr/t'iiinld v, Muirnii, 5 t)nt. .5.')!) ; llowfll v. 
 Likmnl Rink il' /'(iik <!i>., 13 Out. 47<>. 
 
 Tlie (li'fenilant's counsel, in order to show that a witness caUed by him was 
 lidstile, and to treat him as such under s. 22 of the 0. L. 1'. A(!t (Kiig. ), asked 
 the .IiulKe to look at the affidavit of a witness in a former action. As there wiwt 
 liothii : in the witness's demeanour, or way in which lie gave his evidence, to 
 »lit!\v that lie was hostile, the .hidge refused to look at the affidavit, and it waH 
 iit'lil un motion for a new trial that the .ludgti's discretion was absolute, and the 
 Court had no jurisdiction to review his decision : Rirr v. Ilnuuiiii, 1(1 il. \\. D. 
 (Wl. 
 
 Tim omission to swear a juror, where no injustice was done, is not aground nbjectluuB 
 fur a now trial : (hok v. <i. T. Jtii. <'<>., '.)C L.T.403; nor the fact that a jury- to jury not 
 man w.w challenged for cause, tiie party moving for the n((w trial, having causing 
 iiccnptt'd the opinion of the .ludge tnat there was no cause, and having pro- I?j''l^*'' 
 ct'cdwl with the trial : W'o'xl v. McPhfr.son, 17 Out. 1()3. ^ ' 
 
 It is the |>ra(!tic(! in Kngland, ailopting the practice of the former Court of Verdict 
 tiueenV l!ench, not to grant a new trial, on the ground that the verdict is aj,'ainat 
 itlfiiiiisl tlie weitrht of evidence, where the damages are under t'20, e.xcept under weight of 
 (jwiiliar circumstanctvs, such as the trial of a right, or where the personal char- cviaeuce. 
 acti'V of a person may lie injured: Jnnci' v. Mrtro/io/itiit) Bnnril of Work-'*, 44 
 L. T. N, S. SIO; 17 r;. L. .F.411; liooih v. Hri.scor, 2 i}. 15. 1). 4it(>; see also 
 JtnkiuH v. Morris, 14 C!li. I). (174. 
 
 If the damages found by the jury an; sti small, as to show that they must have 
 omitted to coiisidiu' .some of the elements of damage, the Ctjurt will grant a 
 lunv trial: /'liilli/m v. London <(• S. W. Itii. Co., .") q. B. 1). 7H ; T. C. V. 1). 280. 
 
 On an application for a new trial u))on the weight of evidence, wliere there 
 li.m been no miscarriage in law, the (luestion is, does the verdict in the ojiinion 
 cif the Court do substantial justice, and, if not, does the evidence warrant inter- 
 ference: (//vVjt V. Molxon'x Bank, S Ont. lt)2, and the Court though considering 
 that a ditfLveiit verdict would have been more satisfactory, may refuse to inter- 
 fere, the (piestion being one proper for the decision of a jury : Malcolnuimi v. 
 Hamilton Prov. A- L. Soc, 10 Out. App. «10. 
 
 The ordinary reasoning according to wdiich th.e verdict of a jury on a question 
 ef fact oujfht not to be disturbed unless the i>ref)onderance of evidence 
 ugainst the verdict is stnmg and jlear, d(H!S not apply to cases in which the 
 verdict depidids upon a question of science which is not fully solved, 
 hut is still within the region of I'ond fide controversy. The impor- 
 tance of the verdict to others besides the parties to the litigation, and 
 the novelty of the question are elements to be taken into consideration. 
 Where a new trial is granted on the ground of the unsatisfactory nature of the 
 Verdict, a condition should not be imposed that the party applying for the 
 new trial should pay the costs of the previous trial : Mamtgers of Metrnpoiitan 
 ■liylum v. Nil/, 47 L. T. N. S. 20. 
 
 A new trial, on the ground that the verdict is against the weight of evi' 
 dence, should not-be granted, unle.ss the verdict was one which the jury- 
 
■■■I 
 
 662 
 
 Rule 792. 
 
 Surprise. 
 
 New trial 
 as to part. 
 
 JUDGMENT. 
 
 viewing the whole evidence reasonably, could not properly find : Webster v, 
 Friederberc/, 17 Q. B. D. 73G, correcting Solmnun v. Bitton, 8 IJ B. D. 176; 
 see also Metropolitan Ry. Go. v. U'rir/lit, to same effect in the House of Lonis, 
 
 11 App. Cas. 152 ; Quiiilane v. Muniane, 18 L. R. Ir. 53 ; Voiiimissumerii 
 for Railways v. lirown, 13 App. Cas. 133 ; see also remarks iji 31 Sol, Jour. 
 135. 
 
 A new trial should no', be granted merely because the Judge who tried 
 the case, or the Court \* dissatisfied with tiie verdict of the jury : Silanwii 
 V. Bitton, 8 (l B. D. 17«; see Jcdin.s v. .l/"/V(,v, 14 Cli. i). p. 684 ; 
 WiLocks v. lloirell, 5 0. t. 300. 
 
 Though the rejjort of the Judge wiio presided as to wlietlier he was satis- 
 fied or di.s8atisfied with the verdict is not conclusivi , great weiglit will \n; 
 attached to it : Webster v. Friederben/, 55 L. T. N. S. 295 ; affirmed in aijpeal : 
 lb., 4'J ; 17 (l B. D. 73(!. 
 
 The Court may, in its discretion, refuse a new trial on the consent of the 
 plaintiff alone to the damages being reduced to such an amount as tlie Court 
 may think, if given by tiie jury, would not iiave bee»i excessive : Jie/t v. Laice-; 
 
 12 Q. B. D. 35(). 
 
 Where cross-acti(ms involving the .same question of law and fact an^ separ- 
 ately tried with the result that contradictory verdicts are obtained, if the evi- 
 dence is so fairly balanced that the jury migiit reasonably fiiul eitiier way 
 both cases ought to be tried again, not sei)arately, but together. Tin- Court can- 
 not be called upon either to e.\ercise the functi(jns of a jiu'y, or to issue contra- 
 dictory judgments : Australian,, etc., Co. v. .Smith, 14 App. Cas. 321. 
 
 In Ridinij v. llawkin-i, 14 P. I). .50, the plaintiff's case, wlien opeiu.!, seeuieil 
 to proceed on a case of fraud, an<l undue influence only was alleged. The plaintiff 
 applied for leave to amend, whicii was granted, and tiie trial iirouecded after 
 the defendant had refused an offer of the .Fudge to adjourn tlie trial at tin- 
 plaintiff's expen.se ; the finding was for the plaintiff on tiie (luestioii of frauii, 
 but for the defendant in the issues on the original ))leadings. It was held thiit 
 defendant was not iirecluded, by his refu.sal of the offer of adjouniiiieiit, fmui 
 moving .'or <i new trial on the ground of being suri)rised by the plaiiititT's new 
 case. It was also held that the amendment was properly allowe<l, due caiv 
 having been taken that the defendant should not be damnihtid. 
 
 See (Janada Landed Credit Co. v. Thompson, in note to Ride 755. 
 
 The abstaining by a party from jiroof under an idea tliat iiis ,a(l\orsary 
 had no real intention of putting him to sucli i>roof, and being tlu'ivliy 
 taken by surpri.se, is no groinid for a new trial : .'.ndreiri v. Slaur/, 1 C. L.T. 
 724. 
 
 Where the rea.son for the application is surpri.se, the aftidavit.s iiiiist .state tin' 
 grounds of surprise : Daw v. /iiekenson, W X. 18H1, 52. 
 
 As to when a new trial or suiiijlemental triiJ may lie had on the ground of 
 discovery of new evidence, see note to Rn/e ()7(i. 
 
 A new trial will not be granted on the ground of premature adiiilKsion nf 
 evidence whicli has afterwards Ijeconie admissible : Fmniil v. \\'idliin\ 3.") 
 L. T. N. S. .3(il ; nor of the discovery of new "vidence, unle.ss it is nearly nr 
 quite c(mclusive : .{ndei-son v. Titmos, 'MS L. T. N. S. 711. 
 
 Tttl3. A new trial may be ordered on any question in an 
 action, whatever be the grounds for the new trial, without 
 interfering with the finding or decision upon any other 
 question. J. A. Rule 312. 
 
 Same as Eng. R. 1875, O. 3!), r. 4, (1883, R. .557). 
 
 Quo re, whether a new trial may not now lie ordered as to one defendant, with- 
 out disturbing the verdict as to another ; I'ltrnell v. <i. H'. Riiiluvy ('»., 
 
 1 q. B. I). <i,3(i. 
 
MOTIONS AGAINST VERDICTS OR JUDGMENTS. 
 
 668 
 
 Where there are distinct issues, the Judge may, under this Ruk, accept the Rul4B 
 verdict of the jury on tliose issues on which they agree, and discharge them as 793-796. 
 to others, and a new trial may be ordered on undecided issues : Marsh v. Isaacs, 
 45 L. J. C. P. 505. 
 
 703. On the argument of a motion for a new trial or counsel 
 
 supporting 
 applica- 
 
 motion shall begin, and shall state fully the grounds of the ginVnd''*' 
 
 ave reply. 
 
 H ule for 
 uew trial 
 ou pay- ■ 
 laont of 
 costs, how 
 rescinded 
 for non- 
 payment. 
 
 against a judgment, the counsel of the party making theajppSSa 
 
 motion shall begin, and shall state fu" 
 
 application, and shall have the reply. J. A. Rule 314 
 
 794. When a new trial is granted to a party on condition 
 of payment of costs, or other condition, no order shall be 
 made on default in performing such condition unless a 
 motion is made therefor upon notice. Rules T. T. 1856, 45. 
 
 Where a new trial is granted (.>n payment of costs, it is the duty of the party 
 obtaining the in('ulgenee to get the costs taxed and paid, so as to enable the 
 case to be tried at tlie next opportunity : Jo,'ui,s(Hi v. Sparrow, 1 U. C. Q. B. 
 396 ; Umntham v. Powell, 1 P. K. 25G ; but see Van livery v. Drake, 3 P. R. 84 ; 
 atacey v. Mclntiji-e, o P. R. 205 ; Pucaiul v. McEwan, (} P. R. 20 ; Lyman v. 
 Snarr, 3 P. R. Hd ; but where the solicitor of the party to pay the costs 
 promptly applied to the solicitor of the oi)posito party begging to know what 
 the costs were that he might pay them, of which comnnmication no notice was 
 taken, a rule subsequently obtained ex parte discharging the rule for a new 
 trial and the judgment entered thereon were set aside without costs : Doe 
 d.Arniilil v. Aidiljo, (i \J, V. Q. B. 21. The i)arty to receive costs cannot insist 
 in their being taxed : Stock v. lihewan, liS (j. P. IHa. Where the costs were 
 tendered, but refused because there was not sufficient time to give proper notice 
 of trial fiiv the next assizes which, however, the defendant offered to waive, it 
 wan iield that the plaintiff was not 'entitled to have the ride for a new trial 
 rencinileil : Roliiitoii v. Hni'kin, 2 P. R. 12!) ; and see T/iioii/)soii v. Sewelt, 4 
 0, S. It). The costs must be i)aid before notice of trial can properly be given : 
 Stock v. Skeiron, 18 C. P. 185. 
 
 Where an order was made granting a new trial on i)ayment into Court of S500 
 within a limited time, and in default dismissing the motion with costs, it was 
 held no furtlier order was necessary : Slori/ v. McKay, before Divl. Court, 
 Chy. D., (i Sept., 1888. 
 
 7!>.'>. Any verdict or judgment obtained where one party setting 
 does not appear at the trial may be set aside by a Divisional men^t by ^" 
 Court or by a Judge in Court or by the Judge at the''^^*"^'' 
 sittings upon such terms as may seem tit. J. A. Rule 270. 
 
 SeeKng. R. 1875, (). 3t), r. 20, (1883, R. 457). Tlie Englisii Rule requires 
 the ai)plication to be made witiiin six days after tlie trial, after which time 
 there is no power to restore the ivction : Walter v. James, 34 W. R. 2!); 53 
 L. T. N . 5!t7. 
 
 The original of ; iiis Ride lias been altered so as to make it clear that it dtws 
 not give jurisdiction to the Mastfir in Chambers or a Judge in Chambers to set 
 aside a judgment ol)tained by default of th*» opposite partv at the trial : see 
 milmcl V. Arthur, 10 P. R. 281, 42() ; liosi v. Carscalhn, 11 I*. R. 104. 
 
 Where a j\idgment was given at the trial for the defendant owing to the 
 absence of tlie plaintiff, and an ai)plication to reinstate was refused by the 
 •ludge, it was held tiiat the plaintiff might apply to the Divisional Court to set 
 ?side tlie judgment, and for a new trial : Wuson v. Irwin, 10 I'. H. .508. 
 
 The Court of Aj)peal has jurisdiction to hear an apjieal from a judgment by 
 default, lint such appeals are not encourajjed. A party should api>ly to have 
 the judgment s(;t aside and the case re-tru^d : Vint v. Hudspeth, 20 Ch. 1). 322. 
 
664 
 
 Bnle 796. 
 
 Judgment 
 by default 
 may be sot 
 aRirle ou 
 terms 
 
 JUDGMENT. , 
 
 Where a defendant was not represented at the trial of an action, because h,.; 
 solicitor was ignorant of the fact that the action had with others been trans- 
 ferred from one Judge of the Chancery Division to another, Fry, J., held that 
 the solicitor had therein l)een guilty of gross negligence, and that the plaintiff 
 could not be relieved. But it was held on ai)i>eal, that the judgment ir.ust be 
 set aside, on payment of the costs of the day. Jessel, M.R., observing ; "Soli- 
 citors cannot any more than other men conduct their business withoiit some- 
 times making slips ; and where a solicitor watches the list, and hapiwns to miss 
 the case, in consequence f)f wliich it is taken in his absence, it is in accordance 
 with justice, and with the course of practice, to restore the action to the paper 
 on the terms of the i)arty in default jjaying the costs of the day ; which include 
 all costs thrown away by reason of the trial becoming abortive " ; liurqmne v 
 Tai/lor, 9 Ch. D. 4. 
 
 Where the Court was satisfied that the absence of the defendant and his 
 counsel was purely accidental, a judgment by default was set aside on iiaynient 
 of [jlaintiff 's costs of hearing, including reasonable disbursements to counsel, and 
 the costs of the application : Wolffe v. Huyhes, 17 C. L. J. 427. On similar 
 terms an action dismissed was restored to the jiajier, where, in c()nse(|ut'nce df 
 the illness of the plaintiff's solicitor, the necessary arrangements were iii)t made ■ 
 lil:;-h V. Williams, W. N. 187(), KW. 
 
 Where one counsel had bc^en unavoidably detained by a railway accident, 
 and the other had been prevented by indisposition from conducting tlie case (see 
 '.'(icklc V. Jiti/cc, in Jiurs/oinr v. Tui/lor, 9 Ch. D. 3), and where the defendant 
 had i)ersonally been guilty of no negligence, though his solicitor iiiwl neglected 
 to attend to the defence, and the defendant made an application witliin six days 
 of his having heard that the trial had taken i)lace, the Court granted an e.xten- 
 sion of time, to enable him to make application to set aside th" Judgment; 
 Mitchell v. Wilson, 2,5 W. R. 380. So also where one side ha<l trufted to a 
 reasonable expectation of a settlement of the dispute : Wriijhl v. Cliii'i-il, % 
 W. K. 3()9 ; 47 L. J. Chy. 544. 
 
 As to delay in applying, see Mai/ v. He<id, W. N. 1880, 26 ; Wilkim v, hd- 
 fwd, 35 L. T. N. S. 022 ; Webster v. Coal Consumers Co., 1 (^harl. Ca.(C<nin)l?l: 
 Attwuod V. Chichester, 3(1 13. 1). 722 ; Kiiu/ v. Sa title man, 38 L. T. N. 8. M, »nd 
 notes to Rules 705, and 796. 
 
 T?>6. Any judgment by default may be set aside by th? 
 Court or a Judge, upon such terms as to costs or otherwise 
 as the Court or Judge may think fit. J. A. Eule 214. 
 
 Same in ?Ifect as the p]ng. R. 1875, O. 29, r. 14 (1883, R. .308). 
 
 Where a judgment lias been obtained irregularly, tlie party against wliom it 
 has been obtained is t'utitled ex ilehilo juntitid' to iiave it set aside : Anlabii 
 V. Pratorins, 20 Q. B. ]). 764. The court lias only ]>ower to impose tennsasa 
 condition of giving him costs: Jli, Tiiis Rule a])idies rather in cases where a 
 regular judgment is sought to be set aside as an mdidgence. 
 
 To set aside a regular judgment, an affidavit of merits will l)e necessary: 
 Farden v. Jiichter, 23 C^. B. D. 124 ; but wliere merits are shewn, it is only 
 a question of ])roi)er terms : seo Wrif/ht v. Mills, (iO L. T. N. S. 887. 
 
 '*'lere delay is not in itself a reason for refusing to set aside a judgment by 
 default. Some irreparable injury must be shewn to result to the plaintiff : see 
 Attwood V. ChiehcHter, 3 (^. B. 1). 722 ; Watt v. Harnett, 5 t^ B. I). 183, 363, and 
 notes to Rule 705; but lapse of time and acquiescence may be an answer to the 
 motion : McLean v. Smith, 10 P. R. 145. 
 
 Wiiere a judgment obtained tm default of appearance at the trial was set 
 asidt!, the defaulting party was ordered to pay the costs of the day, and ef the 
 apjilication to restore : Cockle v, Jniicc, 26 W. R. 59. 
 
 A plaintiff not being ready to proceed with the trial of his action when it 
 came on unexpectedly, apjjlied for a ix)8tj;K)nement, and ujion its being refused 
 let judgment go by default ; a Divisional Court refused to set asi<le tlie jude- 
 ment ; but the Court of Api)eal, ujMm fresh materials offering a reasonable 
 
MOTIONS AGAINST VERDICTS OR JUDGMENTS. 
 
 665 
 
 explanation of the plaintiff's unreadiness, set aside the judgment, and ordered Rules 
 tiie action to l)e restored to the list on his paying the costs of the day, including 797, 798. 
 all costs thrown away, and the costs of the ai)plications both to the Divisional 
 Court, and to the Court of Appeal : Kin;/ v. Saiiderimn, 3H L. T. N. S. 461 ; 26 
 W. R. oO!) ; see also Williams v. Brisco, 29 W. R. 713, where a judgment was 
 stit aside and leave given to defend upon ixiyment of all costs of the action sub- 
 sequent to the delivery of the statement of claim ; and Riiuh v. Fi»h, 9 P. R. 
 458, where judgment of seisin signed in an action of dower, under a misappre- 
 hension of plaintiff's solicitor as to its effect was vacated. 
 
 A judgment by default in an action against a lessee for recovery of land on 
 a forfeiture was set aside under this RuU' on the application of equitable mort- 
 gagee.", although not parties to the action ; Jiic/ih-k v. Harrimm, 12 tj. B. D. 
 136; but on api)eal it was held that the order was technioally wrong, as the 
 applicant ought to have obtained tlie leave of the defendant to move in his 
 narae,or to have applied for leave to defend on terms of indemnifying defendant, 
 and tlie order made was amended so as to allow the mortgagees to defend in 
 defendant's name : S. ('. 12 (I. B. D. 16.'). The liulc is designed to enable judg- 
 ments by default to be set aside by those who have, or who can acquire a locua 
 sfaiirft, and does not give a /oeu.'S ,sC((7m/( to those who have nime : Ih. 
 
 Where the action had been impro))erlv brought against the defendant, and 
 the plaintiff was aware of the impropriety, and had suffered no irreijarable 
 mischief, it was held that the lajise ,)f time vva; no bar to tlic ai)plication to set 
 aside judgment by default : Kiwf v. Samlcman, Kitpnt. 
 
 Where tlie defence iia^l been struck out for wilful refusal to ])r(xluce, and 
 judgment by default obtained, the Court refused to set it aside on any terms : 
 Haiijh V. //(((■///(, 31 Ch. D. 478 ; and see /tinni v. McLean, P. R. loO'. 
 
 See also notes to RttlcK 70."), and 79.5. 
 
 7U7. Any judgment of nonsuit, unless the Court or «- o"f,7,'," g^it 
 Judge otherwise directs, shall have the same effect as a 
 judgment upon the merits for the defendant ; (a) but in 
 any case of mistake, surprise, accident, ! (h) or otherwisej , 
 any judgment of nonsuit may be set aside on such terms, as 
 to payment of costs and otherwise, as to the Court or a Judge 
 shall seem just. J. A. Eule 330. 
 
 [a] Up to this point the /ii'.lc con'es])on(ls witli the Kng. K. 1875, (). 41, r. 6, 
 and makes a material change in the previous practice at Law. Kornierly, a 
 judgment of non-suit left a plaintiff at Law fret to commence another action for 
 tliBsaim^ cause. There was no such practice in Chancery. 
 
 (')) The English Rule has not the words "or otherwise;'' this is the only 
 difference between the above Riilf and the con'es))oiidiiig ))art of the Engli.sli 
 Rule. Tlie ett'ect of this difference is, perhaps, to givi- a somewhat greater 
 disci'etion to the Court here tiian in England, as to setting aside a judgment of 
 
 non-suit. 
 
 There can now be no such thing as the former "judgment of non-suit," 
 unless pcrhajis under /tu/r 672 : I'oi/sir v. Minortt, 7 Q. B. D. 329. 
 
 As a non-suit is therefore now the same as a judgment cm the merits, it may 
 be pleaded in liar to a fresh action for the same cause : Bjumtir v. JJunnc, 10 
 L. R. Ir. 380; and if the non-suit be reversed on appeal, the defendant is not 
 entitled, as of right, to a new trial for the purpose of adducing evidence on liis 
 behalf; Mdnlomitd v. WDrUiimjton, 7 Ont. Apj). 531, 563. 
 
 This provision is not aiiplicable to Division Courts under .sec. 73, or sec. 304, 
 "f Tk JtiiisioH Court Act, R. H. (). 1887, c 51; Buildim c(- Loan Ash. v. , 
 Ummd, 3 C. L. T. 361 ; Bmik of Ottawa v. McLoughlin, 8 Ont. App. 543. 
 
 
 KMH. Where at or after the trial of an action by a jury, 
 the Judge has directed that any judgment be entered, any 
 
 Appeal 
 from de- 
 cision ef a 
 
666 
 
 Rule 798. 
 
 Judge, in 
 what caBes 
 allowed. 
 
 JUDGMENT. 
 
 Scope of 
 Rule. 
 
 party may, without any leave reserved, apply to set 
 such judgment and to enter any other judgment, on the 
 ground that the judgment directed to be entered is wrong 
 by reason of the Judge having caused the ijudgmentj to be 
 wrongly entered, with reference to the finding of the jury 
 upon the question, or questions, submitted to them. 
 
 The nrig'inal Rule had "findinpr" instead of "judgment." Otherwise it 
 was tlie same as Eng. R., Dec. 1870, R. 7 (compare 1883, R. oGl). 
 
 {a) Where at or after the trial of an action before a Judge, 
 the Judge has directed that any judgment be entered, any 
 party may, without any leave reserved, apply [for a new 
 trial] , or to set aside the judgment, and to enter any other 
 judgment, upon the ground that the judgment so directed 
 is wrong. 
 
 The words "or for a nvw trial " are new, and are taken from R. S. 0. 1877, 
 c. 50, s. 287. Otherwise substantially the same as Eng. R. 187.'"», O. 40, r. ', 
 (compare 1883, R. 5G2). 
 
 {h) Such application may in either of the above cases 
 be to a Divisional Court of the High Court, or to the Court 
 of Appeal, and when the application is made to a Divisional 
 Court it shall be made at the first sittings for which the 
 motion can be set down in due course after the judgment 
 has been rendered, unless otherwise ordered. Sec J. A. 
 Rules 510, 523. 
 
 See Riik 8(K). 
 
 Itwould seem to be necessary tomuv(^ at the first sittings, for which, iiftcrtli' 
 rendering of judgment, seven clear days' notice of motion can be given liefon 
 the first day of tiie sittings: Sicrirlis v. Worxlcuck; in note to /'»/< S(lO;aiiil 
 the time would seem to be comimted from the day of rencUTJng tiie jutl^niient. 
 irres[)ective of the da}- of entering it : see llickey v. Stov< r, 11 1*. K. l^H. 
 
 A moti(m to extend the lime for iuovin^ under this /'u!c should IxMniwl' 
 before the Divisional Court itself : /mpcricl Loan (.'a. v. /'»'/>//, V,i P. R, r/i. 
 For circumstances under wliich the time may be extended, see ]lidr'j v. 
 .Stoivr, 11 P. R. 88. 
 
 (c) It shall not be necessary to move separately against 
 or with respect to the findings of the jury and the judgment 
 directed to be entered thereon. New. 
 
 This rti'lc was originally passed to m.ake the business < if tiie Divisional Courts 
 and the Court of Apjieal resjiectively, nearly of tlie same character as before 
 The ./iii/icdtinr Art, it having been held in truile v. I'lio nix luHtimncc. Co., 2!l 
 (Jr. 42(i, and other cases soon after the i)assing of the .Act, that iindtr 
 original Jtidc 317 the jurisdiction of Division.al Courts in trials before a Jvidp' 
 without a jury, was restricted to cases in which the findings of fact were un(ii>- 
 jMited, and it w^as only sought to mf)dify or set aside the conclusion drawn ly 
 the Judge therefrom ; and that in other cases any motion against tiie judgment 
 should be to the Court of A])i)eal : see also Ite .V/. ynzaire Co., 12 Cii. D. 88. 
 
 In jury cases the iiresent Rule provides for a motion to enter some jiidgniMii 
 flifferent from that pronounced at the trial, but not for a motion for a new 
 
MOTIONS AGAINST VERDICTS OR JUDGMENTS. 
 
 667 
 
 trial. In non-jury cases, motions for a new trial as well as to reverse the jiidg- Rule 798. 
 ment pronounced are provided for. 
 
 The party against whom a judgment is given has always to consider in 
 moving agamst it, whether his com|ilaiut is as to the findings of fact, and this 
 consideration will determine whether his remedy is to move for a new trial, or 
 to enter sueii judgment as may be the proper one. 
 
 The practice on motions for a new trial in jury cases is dealt with by Rule Jury cases. 
 7811, and ap|)Iies in cases where the facts have not bt^en correctly found. This 
 may occur (1) liy reason of the jury having made; an error which the applicant 
 is entitled to complain of, or (2) by reason of some action of the Judge which 
 has prevented the facts from being properly brougiit forward, sueii as uiis- 
 liirection, rejection of evidence, or non-suit of the plaintiff. In such cases the 
 (jbjectiou is not to the conclusions of the Judge from the finding, and his conse- 
 quent entry of judgment upon it; Init the objection is to the correctne.ss of the 
 finding itself, for instance where the Judge misdirects the jury : Ilumiltoii v. 
 Mnsiiii, 5 (J. B. D. 203, 2(5(5 ; (jr non-suits tlie jdaintiff : E/t.i v. U'l'/son, 3 E.\. D. 
 359; or refuses to do so, and a verdict is found for the plaintiff, and judgment 
 directed to be entered there(m : /)avien v. /''cli.i; 4 Ex. D. 32; or where the .Fudge 
 gives judgiiKMit for one party on the findings of the jury: liamiKnu v. ./c/in- 
 dim, CJ. 1$. U. 203 ; or where, the facts being undisputed, the .Tudge directs the 
 jury to find for one party, and it is contended the finding should have been 
 the other way : I'etls v. 1< outer, 3 C. P. D. 437. In all these cases, though the 
 action is that of the .Fudge, the dispute is in respect to the jiropriety of the iind- 
 in(f of the facts, and the motion should therefore be ordinarily for a ui'ir trial. 
 A motion cannot be made under the present Rulf, to enter a different judgment, 
 unless tile case is one in which the Court consifl(>rs that it has all the needful 
 evidence before it and can therefore, under RulcToi), instead of directing a new 
 trial, direct the proi)er judgment to be entered. 
 
 Motions for a new trial in jury cases can only be made to a Divisional t'ourt. 
 Motions to enter a different judgment may be made either to the Divisional 
 Court, or the Court of Api)eal. 
 
 Motions ill non-jury cases, whether for a new trial, or to enter a different 
 jiidKiuent, may be made either to a Divisional Court or the t'ourt of ^Vppeal. 
 
 Where both the findings of fact, and the conclusions of law, are complained 
 of, the apiilication in jury cases must be to a Divisional Court under Rules 7H!' 
 and I'M, combined : see under the Eng. practice RnlnuHoa v. Tucker, 14 (^. B. D. 
 37(5. 
 
 Where the trial has been before a Judge witliout a jury. Rule ''■A>^u applies. Non-jury 
 whether the finding of fact, or the C(3nclusions deduced from it, are riuestioned ; cases, 
 and whether it is proper to direct a new trial or to enter a diffen'iit judgment. 
 
 In such cases the remedy is generally by motion to reverse the judgment 
 under this liule, or liy appeal to the Court of Ai)peal in the ordinary way, and 
 if the Judgi- has impro])erly rejected evidence, tlu* Court has power to let in 
 the evidence improperly rejected, instead of directing a new trial : see IMlmiui 
 V. Jniiex, 12 Ch. 1). ooS ; and Rule 58ij. 
 
 The practice adopted by the Ccmrt of Appeal in such cases in England is thus 
 cxulaiued by L',)i'd .Fustice Cotton, in Ji^nes v. J/nui///, o Ex. D., at p. 12."). 
 "When the appeal comes before us, the Court of .\])peal has the full right, if 
 it thinks necessary, althougii there is no motion for a new trial to say that the 
 conclusion of fact arrived at is not 'satisfactory ; and as tliey have not tlie 
 materials l)ef( ire them to arrive at a proper conclusicm, the Court will order a 
 new trial ; and I can instance a case where this would be done ; where the 
 question tiinisim the credibility of witnesses who had been heard eiea vnee, and 
 seen by tiic .Fudge, who himself had tried the case. In such a case, even 
 althougii tile Court had thought the conclusion was not a correct one, they 
 might diiti't that the ease should go back for a new trial. Here the case is not 
 one wiiich turns on the amount of credibility to be gis'en to the different wit- 
 nesses, but on the ctmclusion of fact from certain letters, and from certain 
 evidence which was taken uixjn commission. Under thf)se circumstances, it is 
 our duty to deal with the matter ; and if we see before us the materials for 
 arriving at a conclusitm on the facts ccmtrary to that which was arrived at iiy 
 
668 
 
 JUDGMENT. 
 
 Bole 799, the learned Judge, we ought not, in my opinion, to put the partieH to thf 
 expense and delay of sending the matter hack for a new trial. Of coursw I netid 
 not say in all questions of fact, es[iecially where there has been ct'rd I'oce evi- 
 dence before tlie Judge in the Court below, the Court of ApfHuil ought to be 
 most unwilling to interfere with the conclusion which the Judge has arrived at 
 when he has liad the o))portunity, which the Court have not, of seeing the wit- 
 nesses, nd judging of their demeanour." 
 
 Tl' t of Appeal, or tiie Divisiimal Court, under this /'»/(', lias full power 
 
 Mr , 1 e decisi(m of the Judge upon the facts. See also the language in 
 Joi 'I' /, 5 Kx. D., at p. 122 ((pioted with approval in /';v';(//(r V. ('()««(ifi- 
 
 di.i /../., i3 Out. App. 74), where Bramwell, L.J. , says: " If upon tin- 
 materials Ijufore the learned Judge, he has, in giving judgment, come to-aii 
 err • '.eousconchisi')!! iipon certain (piestions of fact, and we see that tlieconclu- 
 sioii^are • rnme";,!!- ""-must come to a different conclusion, and act ii|Km the am- 
 clusi'mtli.. \ .'c. , ■., and not aceei)t his finding. * * A great difference exists 
 between a tindi-:^, by he ' idge, and a finding by the jury. Where thejurj- 
 find the facts, the ^'uurt uunnot be substituted for them, because the parties 
 have agreed that the fiicts shall be decided by a jury ; but where the Judge 
 finds the facts, then tiie Court of A|)peal has the same jurisdiction that he hii<, 
 and can find the facts whichever way they like. 1 have no (hmlit, therefom 
 that is our jurisdiction, our power, and our duty." See also the (ilwervatiims 
 of Brett, M.R., in Read v. Andersun, 13 C^. B. 1). 7H1. 
 
 Where there was a conflict of evidence and the Judge who tried the case 
 attribute'' greater weight to the evidence of some witnesses than others, hut in 
 tlie opini(m of the Court of Ajipeal took a wrong view of the law, tlie Court 
 refused to make a decree upon the evidence, and sent the case for a new trial: 
 Ciinoda Litndi-it C'lvdll Co. v. Thtiinpsun, 3 C. L. T. loS. 
 
 As to the principles \ipon whicii Courts act in reviewing the findings of a 
 Court of first instance cm the facts, see tiupra, p, 35. 
 
 As to api)eals from the decision of a Judge fiitting as and for the Court, but 
 not at the trial, see notes to sees. 43, (Jl and 70 of the Act. 
 
 W^here tiiere is a general judgment against several defendants, the last 
 clause of tiiis liulc does not enable tiiein to sever, and ai)pi'al to several 
 Courts ; but they must all a|)peal to the tribinial to which tlu^ defendant 
 who takes the first step has appealed : jjer Armour, J., in Hnti/ei/ v. MfrchnnU 
 Jk\yialc/i Co., 4 Ont. 723. 
 
 Where a mtcion for a new trial was made Cfmditionnlly upon the result of a 
 decision pending in the Court of Appeal, it was held t'liat the usual steps to 
 bring the motion on within the usual time should be taken, and that if neces- 
 sary application should be made to the Court to iKjstjioiu' the hearing of the 
 motion till the decision of the Court of Apjieal should be given. TlieCmrtlia« 
 full discretion over such an application to extend the time for giving notice of 
 such motion, and is not limited to cases wliere the jiarty lias been misled: 
 /'.;(■/.■(■// v. Short, 32 W. R. 123. 
 
 Inter- Where a .Fudge has directed judgment to be entered on an interpleader 
 
 pleader. issue, an appi'al lies under this Ilidi' : Will v. I'arkci; 25 W. K. 518 ; see 
 
 Wdsoii v. Kerr. 18 U. ('. Q. B. 470; hodds v. S/irii/irrd, 1 Kx. 1). 75;4o 
 
 L. J. Kx. 457 ; Withcr.s v. rarkcr, 2H L. J. Ex. 3.S3 ; li''l>l,i.sn,i v. 7'w<-f', 
 
 14 (-1 B. D. 371 ; Itaw.son v. Foa; 14 Q. B. I). 377- 
 
 Motion for 71>tt. In auy case whereon the trial the jury disagree 
 wiwejury and find no verdict, the Court may, notwithstanding such 
 disaeree. disagreement give judgment of non-suit. Sae R. S. 0. 1877. 
 c. 50, s. 290. 
 
 See Bank of li. X. A. v. Eddn, in note to 7^</f'(>S2; also Caitcu v. C. P.R^- 
 Co., 15 Ont. 574, where judgment was given for defendants, the jdaintiffs 
 own evidence shewing that the accident, the occasion of the damage-'' 
 claimed by him, was caused by his own negligence. 
 

 MOTIONS AGAINST VERDICTS OR JUDGMENTS. 
 
 669 
 
 The makini? of a motion under this liule wa.s held to stay the carrying of ] 
 the case down to a second trial, where the motion was not heard at an inter- I 
 
 ' Rules 
 the case (umvii h* j* ni-L/mm ui i»ii, »iif::io nn- iiii'biiMi « n.pi injt iiftiriw ivij ATI inter- oOO'oOZ. 
 veninif sittings of a Divisional Court because the notes of evidence were not 
 ready in time : Schuh/ v. Roxcnstwit, !) C. L. T. 114. 
 
 800. Every motion against a judgment or for a new i^ength of 
 trial shall be a seven clear days' notice, and the motion 
 
 shall be set down at least two days before the first day of the 
 sittings of the Divisional Com-t for which the notice is given, 
 unless otherwise ordered, i-iee J. A. liule 522. 
 
 This iJii/r is in accordance with the formia' pnictice on rehearing: see Chy. 
 (J. 0. 418 ; except that 7 clear days setting down was required. 
 
 Both le seven days and the two davs are clear days : see Rule 47o, and 
 Rumoh, V. Marx. 18 C. L. J. 444 ; 1!) C. L. J. 10 ; 3 O. IJ. T. 31, decided under 
 the fonner practice. 
 
 The seven clear days' notice of inoti(m must he given for the first day of the 
 sittinffs and will not be sufficient if giv(^n for any subsequi nt day although 
 given ill time to permit the motion to be sot down twi > clear (la.\ s before the com- 
 mencement of the sittings : Sicrichx v. Woodcock, (the Div. Court C. 1'. 1)., 
 26 Nov., 188!»). 
 
 Where a solicitor had instnicted liis clerk to set flown a case, but the clerk, 
 by a mistake in suiiposing that the seven days wc^re not clear days allowed the 
 last day to pass, this was held not a sufficient ground for granting leave to set 
 the case down : Riimolirv. Marx, .vprn. 
 
 Where judgment for d(^fend.ants was delivered on 22nd November, and the 
 plaintiff's solicitor inunediately ai)i)lied for <a copy, but did not receive it imtil 
 2!lth November, which was the last day for setting down a motion to reverse 
 the judgment, and there was, therefore, no time to consult either the plaintiff 
 or cminsel, the Court held that the delay was sufficiently excused, and granted 
 leave to set (If)wn xunni iiayment of costs : Foli'i/ v. Caimdn Permanent, etc., 18 
 C, L. .T. 444 ; 3 C. L. T. 32. 
 
 Wheiea cause had been .set down and subsequently struck out by order of a 
 Judge, an application to the Court at the sittings for which the cause had b.een 
 set down, for leave to set the cause down at such sittings by way of a]>peal 
 from the order striking it out, was held to be an exception to this Rule, and 
 not required to be set down : Bell v. Macklht, 21 C. L. J. Ito. 
 
 Where a cas^> is improperly set down, a substantive motion should be made to 
 strike it out : Wannlei/ v. HvMllwood, 10 P. R. 233. When the objection haa 
 not been taken until the case has been called on for argument, costs have 
 sometimes been refused, although the objection was sustained. 
 
 801. If a party who serves a notice of motion for a new Ahandon- 
 trial or against a judgment, does not set the motion down, '"t-' '""ti""' 
 he shall be deemed to have abandoned the same. Neu-. 
 
 The opiwsite jiarty may dtnibtless apply at tiie oi)ening of the sittings on the 
 first day for tiu? costs of the abandoned motion: see Reij. v. Arvuitron<i, (the 
 Div. Court C. P. D., 21 Dec, 188'.».) 
 
 802. On every application for a new trial, or to enter a copies of 
 different judgment, where the evidence was at the trial notes We 
 taken down by a short-hand writer, there shall, unless the on'mot?on« 
 Court otherwise orders, be filed when the motion is set for "^w 
 down 3 copies of the evidence in words at length, each copy *""' ' ^*°" 
 to be certified as correct by the short-hand writer. C. L. 
 
 Rules, 10th March, 1876, 1. 
 
 :ll 
 
*• 't: — '■"■!i',"M"l 
 
 670 APPEALS. 
 
 Rules Per Boyd, C, October, 8, 1888: "This liule is not for the present to be 
 
 803, 804. enforced strictly." It is not usual to require the copies of the shorthand noto 
 to be delivered at the time of setting down the case ; to do so would necessi- 
 tate constant applications to the Court to be relieved from the operation o( the 
 Rule. It is considered sufficient to deliver the copies of the notes at any time 
 iKjfore the case is argued ; although, of course, it is desirable that they should 
 be delivered as soon as possible. A case is not usually put on the iK'remptorv 
 list for argument before the cojjies of the notes have been delivered, if otiie'r 
 cases are ready ; but if a cause should be jilaced on the peremptory list, and 
 the notes are not forthcoming when the cause is called on, counsel for the 
 party whose duty it is to deliver them, should be jjrepared with an affidavit, 
 showing that due diligence has been used to procure them, or the cause may 
 be struck out with costs. 
 
 CHAPTER VIII. 
 APPEALS. 
 
 1. Appeals to Court of Appe.\l, 803-|3. Appeals from Masters and Eef- 
 845. I EUEES, 848-850. 
 
 (i) High Court Appeals, 803-8H4.|4. Appeals from Taxation, 851-854. 
 
 (ii) County Court Appeals, 835-J5. Appeals to the Judicial Com- 
 
 845. MITTEE OF THE PuiVY CoUKCIL, 
 
 '2. Appkalb from Chamrers, 846-847.1 855-857. 
 
 Notice of 
 appeal. 
 
 When exe- 
 cution to 
 be stayed. 
 
 Subject to 
 certain ex- 
 ceptions in 
 which par- 
 tial perfor- 
 mance is 
 required by 
 delivery 
 into Court. 
 
 1. Appeals to the Court of Appeal. 
 
 (i) High Court Appeals. 
 
 803* The notice of appeal required by Section 71 of 
 The Judicature Act may be in the Form No. 41 in the 
 Appendix. 
 
 See notes to sec. 71, p. 80. 
 
 S04. Upon the perfecting of the security, mentioned in 
 section 71 of the Judicature Act, execution shall be stayed in 
 the original cause, except in the following cases : — 
 
 (1) If the judgment appealed from directs the assignment 
 or delivery of documents or personal property, execution 
 shall not be stayed until the things directed to be assigned 
 or delivered have been brought into the Court appealed 
 from, or placed in the custody of such officer or receiver as 
 that Court or a Judge appoints, nor until security has been 
 given to the satisfaction of that Court or Judgr, ;ind in such 
 sum as may be directed, that the appellant »val obey the 
 order of the Court of Appeal ; 
 
HIGH COURT APPEALS. 
 
 671 
 
 (2) If the judgment appealed from directs the execution *"i* 8<>*- 
 of a conveyance or any other instrument, execution shall cutlng^n*-' 
 not be stayed until the instrument has been executed and Btn'ment 
 deposited with the proper oflQcer of the Court appealed 
 
 from, to abide the judgment of the Court of Appeal ; 
 
 (3) If the judgment appealed from directs the sale or or by the 
 delivery of possession of real property or chattels real, fpe'cia^ae- 
 execution shall not be stayed until security has been ^^gQyjjn'it 
 entered into to the satisfaction of the Court appealed w^^'e. 
 from, and in such sum as that Court or a Judge directs, 
 
 that during the possession of the property by the appellant, 
 he will not commit or suffer to be committed any waste 
 on the property, and that if the judgment be affirmed, he 
 will pay the value of the use and occupation of the pro- 
 perty from the time of the appeal until the delivery of 
 possession thereof, and also, in case the judgment is for . 
 the sale of property and the payment of a deficiency 
 arising upon the sale, and the appellant will pay the defi- 
 ciency; 
 
 (4) If the judgment appealed from directs the payment or to pay 
 of money, execution shall no t be stayed until the appel- coats*" 
 lant has given security, to the satisfaction of the Court 
 appealed from or a Judge, that if the judgment, or any 
 
 part thereof, be affirmed, the appellant will pay the amount 
 thereby directed to be paid, or the part thereof as to 
 which the judgment may be affirmed if it be affirmed 
 only as to part, and all damages awarded against the 
 appellant on the appeal. K. S. 0. 1877, c. 38, s. 26. 
 
 Security for Costs, etc.— Sec. 71 of the Act provides for tlie giving of 
 security for costs in the Hum of $400 as a condition precedent to an appeal. 
 
 Staying Execution under Judgment appealed from— 
 
 The security provided for by sec. 71 is only for the costs of the appeal. The 
 jiving of such security for the costs of the appeal effects a stay of execution, 
 except in the cases mentioned in this Rule: see McOarvei/ v. Strathroy, 6 
 Out 138 ; Tvnnilo v. Toronto Street Ry. Co., 12 P. R. 361. In 'any of such cases 
 if the apixillant desires to stay the execution of the judgment he must further 
 comply with this Rale; execution will not otherwise be stayed : Fox v. Toronto 
 'i:mpissing£!i. 0"., 26 Gr. 352 ; Gossni/c v. Canadian L. A- E. Co., 24 U. C. Q. B. 
 452 : see Barker v. Laveri/, 14 Q. B. D. 769. 
 
 In order to ftay execution wliere the judgment directs i)ayment of money, 
 whether as debt, damages, or costs, further security must be given under this 
 Rule: Powell v. Peck; 8 P. K. 8,5 ; see also Heward v. Heward, 2 Chy. Ch. 245 ; 
 and execution for costs can only be stayed upon giving security for both the 
 costs in the Court below and m the Court of Appeal : Orand Trunk Ry. v. 
 »nt. <t Que, ii,,_^ 9 p. R. 420. The application to stay execution should not 
 be made ex parte : lb., and is made in the Court below : see Jud. Act, sec. 71, 
 andO. T. Hy. Co. v. Ont. <t- Que. Ry. Co., supra; Wilson v. Church, 11 Ch. D. 
 are; Oltn v. Liwlford, 18 Ch. D. 394 ; Cn>pper v. Hmith, 24 Ch. D. 315. 
 
 t 
 
m 
 
 ;p ||,^ ^'" 
 
 672 
 
 APPEALS. 
 
 Rule 804. 
 
 Costs of 
 motion. 
 
 When 
 money 
 made 
 under exe- 
 cution, wili 
 be ordered 
 to be re- 
 funded, or 
 possession 
 of land bo 
 ordered to 
 be re- 
 stored. 
 
 Stay of 
 proceed- 
 ings—when 
 ordered 
 pending 
 appeal. 
 
 Innti'Sifl i)f Riving a lionri, niontiy may lie paid into Cmirt t(i abide the result 
 of tilt! apiieal ; in such caHe, koiiic lulditional sum, to answer the diffpretiw 
 between tfio legal rate of iiitere.st, and that allowed on dejKiHitH in Court, inav 
 1h» required to be paid : McVoiDild \. WiiHliiiujtoii, W V. U. 554, 
 
 A stay of exeention for the iiaynient of money or costs awarded by thf Ccmn 
 below, will be given to an apiK'llaiit ns a matter of rigiit iii>oii giving tlii' 
 security l>y tiiis Hiih prescril)ed : see ( Vo/i//'/. // . h'ltininiK, G P. R. LVJ ; i'o/v. 
 2'o7'(iiif() <(• .\'///i,i.i/;i(/ }{;/. Co., 2(i (Jr. ^i'>2. Tiie Court may on sucii an apiilica- 
 tion consider whetlier tiie ai>p»,'d is frivolous : JViirvit/ v, Ciinmlii •\iuth<m lln 
 Co., 7 I'. H. 4()2. 
 
 It has been held that the recovery of costs, payable under an order, willndt 
 be stayed by the Court of Ai>peal, pending an apjieal to tlie House of Ltmis, if 
 the solicitors to whom tliey are i>ayable, give tiieir personal undertaking td 
 refund, in case of tiie order bfiiiig reversed : llrnnt v. Tin JiiiiK/iir Frama- 
 Ei/i/ptiniiic, '.i C. P. I). 202 ; Morinii, v. h'/f<,r<l, 4 Ch. I). IV>2 ; The Kh(divr, ,i 
 P. 1). I; l)ut see Acp/v/ and .\tti/.-llni. v, Kuicrni.ii, S8 L. T. .lour. Il7. 
 
 The costs of an apjilicatioii to stay execution in Kngland, where there is iki 
 enactiiietit similar to I'nh 804, are as a general rule ordered to be jiiiid by tlii' 
 applicant : see Mcrni v. Xiclaillx, L. ]{. 8 Chy. 205 ; ('nDjur v. <'f)(i/iir, 2 Ch. 1), 
 4!)2 : Mornati v. Elfont, 4 Ch. 1). 35H. In liurdick v. Ilarrick, L. K. 5 Chy. 453, 
 and Adair v. Yoitn;/, 11 Ch. I). 730, however, they were made costs in tln' 
 appeal. 
 
 In Ontario, the costs of ai)plicatioiis to stay execution, or i)roceediiigs, arc in 
 the discretion of the Court : JUtlr 1170; and the genenil rule is to make the 
 costs, costs in the api)eal. Sometimes formerly they were ordered to be paid 
 by the ap|)licant: see JVorr(d v. Canada Snutlirrn Iti/. 6'o.,15C. L. J. Sti: 
 7 P. K. 4(i2 ; Fnx, v. Toronto i^' Ni/iisnin(/ H;/. Co., su/ira. 
 
 Where security has been jH'rfected for a stay of executiim under Huh 804. 
 the execution is not only stayed, but is sui)erseded, so that it ceases to bind, if 
 it has been issued and |>laced in the .Sheriff's hands : ( >' I hmolnn- v. Rohini' n. 
 10 Ont. App. (J22. 
 
 If the money has l)een made by the Sheriff, but not |iaid over before t!c 
 .Fudge's liat to stay execution is served on the Sheriff, the ajipellant may 
 demand l)uok the amount levied from the Sheriff ; see sec. 72 of tlie Act, p. W 
 And where a suit was liroughtto restrain an action of ejectment, and the plain- 
 tiff failed, and thereupon a writ of hah. far. poxs. had been executed hcfdretln 
 ]>roceodings thereon coidd lie stayed, possession was ordered to be rcstornl 
 to the appellant pending the ajipeal, on his giving security as retpiired by Jhih 
 804 : Camjthdl v. lioi/al Canadian lUuik, llMiir. 477. Hut when the money has 
 been made by the sheriff, and transmitted to tiie resjiondent's solicitor, before 
 .an order staying execution is served, such iniJiiey will not be i rdeivd to 1* 
 refunded, even though the order staying the execution be granteu I)cfore the 
 money actually reached the .solicitor's iiands : McDoucU v. McKaii, 2 Chy. Ch. 
 3.54 ; see further /i'(//r.s' 804, 805, 808, 80!t, 811. 
 
 Staying Other Proceedings under the Judgment Appealed from. Tending 
 an ajjpeal, proceedings upon accounts and iiKjuiries are not in general stayed; 
 Hyam v. Tcrrii. 2!) \V. R. 32; Whitehead v. Buffalo and L. H. H. I*'. '>., 7 
 (ir. .578 ; Butin- v. Standard Fire Inn. Co., 8 P. R. 41 ; J/cicard v. Hi ward,'! 
 Chy. Ch. 242 ; (but see Hank of U. C. v. J'ejtlrotf, 8 U. O. L. J. 328) ; but they 
 will be stayed where the appeal, if successful, would be nugatory if im^eedings 
 were continued pending the appeal : Wilnon v. Church, 12 Ch. I). 4i">4 ; '1 
 L. T. N. S. .50 ; 48 L. .). Chy. OilO ; 28 W. R. 284 ; or where the appellant 
 would sustain irreparable injury : Adnir v. Yuun(i, 11 Ch. 1). 13'> ; 40L. T. 
 N. S. 5!)1 ; Walfnrd v. Walford, L. R. 3 Chy. 812 ; 'O'oldic v. Date P. >'. Co., 7 
 P. R. 1 ; Cotton V. Corhu, 5 U. C. L. .1. 07 ; but not otherwise : MrMurram- 
 (Jrand Trunk R. II'. Co., 3 Chy. Ch. 125. In Jie Pedvur, 48 L. T. N- S. 52, 
 the Court refused to stay the trial cif issues of fact, pending an apixnil on a ques- 
 tion of law ; and see McDonald v. Miirrai/, !t P. R. 4G4, where a new trial was 
 allowed to proceed, i>ending an appeal from the rule granting the new trial 
 where it was shewn that important evidence might be lost, and the plaintitt 
 would be prejudiced financially by flelay, but in tioldie v. Date P. .S. Co. sujmh 
 
■^'W 
 
 HIGH COURT APPEALS. 
 
 073 
 
 iibiilc the rewiH 
 
 tl\i' (iitferenc* 
 
 » iti Court, may 
 
 (•(1 liy theC'diirt 
 \)()n giving tln' 
 , H. ir)!t; Fnxy. 
 Buch an applica- 
 /(( ><iiUhfrn llii, 
 
 II order, will iidt 
 DUsc of Lonid, if 
 
 undertaking tu 
 HawiiK' Frann- 
 
 The Khidirt, ."i 
 lur. '.•". 
 
 vlu'rc there is ti" 
 
 be paid by thf 
 (.'noinr/lChA). 
 
 L. R. ■) Ch>;. 453, 
 lade costs in \\w 
 
 poceedingf", areiii 
 it" is to make the 
 rdered to be paid 
 , 15 C. L. J. S(i: 
 
 under Huh m. 
 
 ceases to bind, if 
 
 )hoe V. HobiM rt. 
 
 1 over before tit- 
 le iiiiliellant ir.uy 
 ! of the Act, p. W 
 ■nt, and the plain- 
 ecnted before tin 
 d to be restdwi 
 
 recinired I'V IMc 
 m\ the money has 
 s solicitor, before 
 be . rdered t<i 1* 
 ranted before the 
 (cKoii, 'J Chy. Ch. 
 
 d from.- Tending 
 in Kc'ieral staywl : 
 
 H. li. !'■• '>•- ;, 
 
 nml V. Hi ward, i 
 J. 328); bntthey 
 torv if procmhngs 
 ^ Cb. I). VA; U 
 ere the appellant 
 
 1). 13»i; 40L.1; 
 
 mt< P. >'• Co., ' 
 
 48L. T. N.S.02, 
 1 appeal on a ques- 
 tre a new trial was 
 tiny the new trial 
 ajid the plaintilt 
 ,t( P. *'. ''"• "'f^'' 
 
 ii notice of trial given without Imve, (ending .such an appeal, was hold irregular: Rule 804. 
 j(4'also//w(/u V. Trrrii, 2it W. K. 32; and where an ai>peal to the Supreme Court 
 was iK'iiding uiKin a ((uestion arising as to whether the action should Ih) 
 tried with, or without a jury, the trial was stayed ; Conmirw Vnnndinii Pacific 
 Hii. Co., 11 V. K. -m. 
 
 When an aiijH'al was pending against an onler for production of docuinciitH, 
 iiriiceediiigs to enforce tlie order pending the appeal were stiu'ed, on the tenns 
 ' ' ' ' *'"■ '' '■'' • ^tw... ;..*.. (Jourt : Kvimcrxim, 
 
 f tiie time for 
 
 (if the appellant bringing the docuiiients in (piestion into 
 /,„/., 3>SCli. 1). 32(i ; .W L. T. N. S. 422. 
 
 The application to stay jirooeedings will not Ih^ entertained 
 apiwaliiiK ''as elapsed : liriijlmm v. Smitli, 3 Chy, Ch. 311;. 
 
 rroceediiigs tu c<iinniit a defendant for a l)reacli of an injunction, will not be 
 staved pending an appeal from the judgment, or order, granting the iiijnnctioii : 
 (i'i'iiihl( V. Jinir/iiiiii, 3 Cr. 281, 3(13 ; and see McLunn v. Cal<liir/l, 211 (ir. 438; 
 and iM'ndiiig an appeal from a judgment awarding an injunction, the injiinc- 
 tii'ii will not lie suspende<l : Ih., and see ,S'. f '., (i Out. A)))), at ji. 4!t4 ; Foje v. 
 Tijivntd il' Xi/iiKKiii'i Ji. ir. Co., 2(>(ir. 352, unless in the ca.se of a mandatory 
 injunction, where obedience to the injunction would render the appeal nuga- 
 tfiry : see l)undnn v. Hamilton i(' Miltmi lioiul Co., 1!) lir. 4r)5 ; but see 
 Mei/aniii \. Slriitliro)/, (Jiit. 138 ; lit C. L. .1. 3!I3, v\her<? Proudf(K)t, J., 
 icfiiHwl a .'<e(iuestration to enforce an injunction restraining the defendants 
 fruni iHTinitting water to flow on plaintiff's land, pending an appeal, after 
 spcurity had been given under H. S. C). 1877, c. 38, s. 2(5, from which this Rule 
 is taken ; and see also Toronto v. Toronto Stiri't Mil. Co., 12 J'. R. 3til. 
 
 Where a .sum of money is ordered to l)e |)aid, or in default a receiver is 
 directed to lie appointed, the appointment of a receiver can only be stayed 
 lieiidingaii ai)peal, on security being given for the amount onlerecl to be paid, 
 as recinired by Jiiilr 804 (4) ; Fox v. Toronto and JVijii.i.iin;/ Ji. H'. Co., 2() Gr. 
 
 Iniiii,rtgage casts, simply for foreclosure, or sale, j)roceedings may be stayed 
 Midingan apiK'al without .security l)eing given : Jtank of U, C. v. Puttroff, 8 
 r. C. L, .r. 328, And it would seem that the Court ai)pealed from, may, in 
 its discretion, irrespective of this Ride, .suspend the o[)erati(jn of its judgment 
 ill any case jx-nding an api)eal : Cotton v. Corbi/, ,5 IT. C. L. J. (17. 
 
 Where an ai>pellant i)roceeds to enforce an order or judgment api)ealed from 
 |)eiiding the api)eal ; and by his appeal he claims relief inconsistent with that 
 given by the order or judgment ajjpealed from, ho will be held to have aban- 
 doned his appeal : Jnternationni Wrecking Co. v, Lohb, 12 P. R. 207. 
 
 Where money has been i)aid intt) Court for a s])ecific purpose, and tliat 
 Ijurimse has been answered in favour of the party ))aying it in, it will be paid 
 f'Ut to that jiarty ; therefore, when security for costs of an ap])eal to the Court 
 I'f .\p]x'al has Iwen given, by paying money into Court ; in the event of the 
 appeal proving successful, the appellant is entitled to have the money paid out 
 toliini, notwithstanding the resjxjndent may desire to api>eal to the Supreme 
 f'ourt: McLaren v. Caldwell, !) P. R. 118 ; 'WUson v. Bceittn. Re Donovan, 10 
 !'• R.71 ; AtherUm v. D. N, A. Co., L. R. 5Chy. 720 : Lindsay PetroltumCo. \. 
 //«r(/, 3Chy. Ch. Ki ; Jiillinnton v. Provincial Jn.-<. Co., "J P. R. 07 ; Cronsman 
 V. ShtarH, 15 C. L. .F. 110 ; and the respondent in sucli a case, if he desires to 
 -top the ])aynient out, must give security for danui^es consequent on its 
 detention in Court : McDonald v. W'orthinijton, 8 P. R. 554. 
 
 Similarly an appeal bond may be delivered up, where the appellant issuccess- 
 ■lu, all lialiility upon it being at an end, notwithstanding that an appeal to the 
 J^upreine Court may be pending : Jiurijesn \. Conwaij, 11 P. R. 514. 
 
 This principle does not, however, aiiply to enable a party who has paid money 
 into Court as security for costs in the High Court and succeeded, to obtain 
 iwment of the money out to him jiending an apjieal to the Court of Appeal, as 
 t » appeal is a stej) in the original action : Rnle 818, and the puriwse for which 
 tlie money is paid m is not an.swered, unless the appeal is unsuccessful : National 
 li'i. Co, V. Eijlemn, P. R. 202. But where the opiK)site party was otherwise 
 *eured, payment out was directed : Napier y. Hue/hes, 9 P. R.'lG4. Similarly 
 ^wiere a bond wiis given for security for costs a motion to have it delivered 
 
 JA. 43 
 
 Injunction, 
 wlion sus- 
 pended. 
 
 Appoint- 
 ment of 
 Roceiver, 
 when 
 Btayea. 
 
 Mortgage 
 actions, 
 wlien 
 stayed. 
 
 Money paid 
 into Court 
 ponding 
 appeal, — 
 disposition 
 of. 
 
•^ 
 
 674 
 
 Rules 
 800, 806. 
 
 APPEALS. 
 
 up WHS rcfuHC'l, ftti n|i)M>ul lii'iiiK pt'iuliiiK t<> tlio r'uiirt t>f Aiipcal : UiiUU<i\ 
 MnvlKintu' h(Hi«Ui'li, lUOiit. App. (14(» ; 11 \\ M. !». 
 
 ^Iimcy paid in liy a |>arty as sctMirity for cuHts in appeal will ki-ik rally V* 
 paid ont tu tlic solicitor for the party on liis undfrtakinK to rt'f\iii(| it if the 
 appeal is allowed liv tlie Supreme Coiiit ; h'dhix. Imin rinl, r/r,, In I', 1|, \\fy 
 Slii'lr V. York, 7 C.'L. '!'. 17<>. 
 
 And wliere a sum of money lias been paid into ( 'oiirt, not to luiswer iniv 
 spei;ific purpose, l>ut jfenerally toaliide further order, then tlii' Coiul liiiMt i|i>- 
 cretion as to orderiuK the money to lie paid out jiendiiiK an appeal, ami in such 
 a case, nuiy re(|uire security to lie given to refund if reipiired ; Kiiiii v. /innain, 
 !) J'. H. (>1 ; I'liuiiiliini Lmul i'li. \. IhiKdrt, 11 T. W. ."jI ; (,r/., where ewin^ 
 to the lioverty of the su( eessful nai'tv there is danjrer that it may nut !»• 
 recovered if the decision should lie reversed; Ri Aiii>/, Airai \\ 'Hiiiirr,'\) 
 L. T. .I.nir. 'X>. 
 
 ^Vhere a fund in ( 'ourt is, liy the jtidKnient appealed from, directed tnlic imid 
 ()\it to the respondent, the Court may stay the payment out, uimiu the aii|rtllaiit 
 giving security for the ditfereiice Wetween legal interest and the iiiteiot which 
 will actually accrue in Court : MiJjitiin/d v. Worthiinilnii, S 1*. K. .ViJ; A'a/w 
 v. Ynrke, 31 W. R. 101) ; nmil/oril v, Yoitiiih 28 Cli. I). IK. 
 
 Where money has lieen iiaid in as security for (josts of an ajipeal liy a luirty 
 who is unsuccessful, it will lie apiilied in payment of the costs of the ii|i|»nl, 
 and the balance will not lie treated as that jiarty's own tnoneys and aiipliiiltu 
 pay other costs of the luttion ]iayalile by luni, if it is shewn to have hi'ta lor- 
 rowed for the specific purpose of securing the costs of the ajipeal: McKniik 
 V. Kittriili/i, 1 C L. T. 11(1. See also Wi'illiiiK/tmi v. Jdlnison, 7L' L. T. .Uw. 
 373. 
 
 Where money was so paid out to a respondent to satisfy ijosts of an unsuc- 
 ccssfid aiijieal, but the decision was reversed by the I'rivy Couiu '., thn 
 res|iondent was compelled, in an action brought for the )iurpose, to ii|iay the 
 nioney.s so pai'' out forprincinal and interest, with interest on that >,'rii.<i 
 amount at six per cent., and all stuns otherwise^ paid for costs without intcrfst: 
 C(7/-((i,i luK. Co. V. PiirmniK, 32 C. 1*. 4!I2. Sonhir that an action was m.ly 
 necessary because the money had been ]iaid <iut to persons not parties Xn the 
 original suit as trustees for the creditors of the original jilaintitt': Ih. .See 
 McKinthiii v. AniiKtrowi, 11 P. K. LMM». 
 
 Proceedings in an action u]Kin an ajipeal bond were stayed, where a fiirthtr 
 aiipeal was jiending and security had in it been given for the costs securcci by 
 the bond : MrLairn v. .'<trjihin', 10 P. K. S8. 
 
 Appeal dis- ^\j, appeal under T/ic Joint Stork Cmnpanics WmiUn<i-up Act, (R. i*^. 0. 
 
 where se- *^" ^^?^' .^" ^^ ^"^ cannot be entertained wiiere securit%- has not been given 
 
 curity not within eight days from the rendering of final judgment, or order, aiiije.iled 
 
 put in in from : lie Union Inn. Co., 7 Out. App. 783. 
 
 time. 
 
 \yhon Hi^Si. When the security has been perfected and allowed, 
 
 w'ay^xe- any Judge of the Court appealed from may issue his./^'nf 
 to*be" to ^^^ Sheriff 'o whom any execution on the judgment has 
 granted, issued, to stay the execution, and the execution shall be 
 order exe-^ thereby stayed, whether a levy has been made under it or 
 fssue." *° "^0* ' ^"' ^^ ^^^ grounds of appeal appear to be frivolous, 
 
 the Court appealed from, or a Judge, upon motion on notice, 
 . may order execution to issue or to be proceeded with. 
 
 R. S. 0. 1877, c. 38, s. 28. 
 
 See note to Rule 804. 
 
 Security to M06. Unlcss otherwise specially ordered by the Court 
 ^ ^ "" appealed from, or a Judge thereof, the security required by 
 
w 
 
 moil COURT APPEALS. 
 
 675 
 
 [■ill : Ui'kU'j V. 
 ill niiunilly V* 
 
 'cfullil it if the 
 
 ., in I'. 11, \\f.\\ 
 
 tci im^^wcr iiiiv 
 (.'(iiirt liiis \\ ihv 
 K'lil, anil ill such 
 Kiii'.i V. //I'Mi'cin, 
 /., \\lii'vc iiwiiiK 
 
 it limy nut l*- 
 I'l II V. )<'!»■' r, ?.) 
 
 vcctcd tnlic |iaiii 
 
 mil till' ainicllalit 
 
 ic interest wiiicii 
 
 K. ."i.'il ; /-'(■• iw 
 
 .IHieal liy aiiiirtv 
 ts of the \\Y\*-M, 
 ,-s anil apiilii'il to 
 to Imve lii't'ii iHir- 
 IHiral: McKnr.k 
 
 (ists of an nibuc- 
 ivy Coinu- '., the 
 ost', to rf)iay the 
 •st on tliat fw* 
 ;\vitliont intcivst; 
 action was m.ly 
 lot iiavtii's til tlw 
 .laintift: Ih. See 
 
 (1, wliiTf a further 
 costs seciirwl by 
 
 up Act, (R. J^.O' 
 iH not liceii fr'lVHl 
 )!• ordt'i-, appealM 
 
 cl and allowed, 
 issue his./idf 
 judgment baa 
 ition shall be 
 de under it or 
 ,0 be frivolous, 
 ition on notice, 
 ■oceeded witb. 
 
 by the Court 
 ity'required by 
 
 section 71 of Tim Judicature Act and Rule 804 shall l>oJjy*|Q8 
 personal and by bond, and may bu in the form No. 209 inyotmoi 
 the Appendix, mutatis mutandis. Provided that in anyijo*"!. 
 case in which execution may bo stayed on the giving of 
 security under the preceding llules, such security may be 
 l^iven by the same instrument whereby the security pre- 
 scribed in section 71 is given. App, 0. 2. 
 
 See note to Huh SOI. 
 
 «07. The bond shall be executed by the appellant or 
 appellants, or one or more of them, and by two sulVu lont 
 sureties, unless the Court or a Judge thinks fit to dispense 
 with the execution thereof by the appellant. App. 0. 3. 
 
 Appeal 
 ljo;i(l, par- 
 ties to, 
 
 IiiMtcml of K'^''"fe' "■ 1><>1"1> security may lio given by paying *i4(M) into Court, 
 Hiid leave to pay in tliiit sum will lie K''"'"te(l on an (X piirt ii|)plicatioii : 
 Cinifnll/i V. o'i'li/l/i, 8 I'. R. ir>it; or, after a bond lias been ^'ixeii, tlie Court 
 Ix'hiw limy allow money to be paid into Court as security in substitution there- 
 fur: Clnillinm .1' l>>iiri',E., v. Tin- Krir <(• Hiirmi. Rii. Co., 7 I'. U. 3!H» ; but it 
 isnot suttiiueiit to deposit the money, and obtain a certificate of the deiiosit ; 
 it imiHt also appear that the security so given, is to the satisfmition of tho 
 Cmirt appealed from, or a Judge tlnn-eof : Afiiciloii'dd v. Ahlmtl, 3 S. C. K. 278. 
 As to the time for putting in security, see sec. 71 of the Act, p. 1\) ; Mrltac v. 
 Whih, !l 1". J{. --'SH. 
 
 If either surety dies or l.ieeomes insolvent, pending the appeal, an application 
 may he made to compel the apiM-Uant to substitute* another : Sdinn/crs v. 
 Fiiniii-iil, -ICUy. Cli. in!) ; ^V'.i/c v. ChiiiuIh J'li/i/is/iiii;/ <;>.. 10 P. R. Kiit. The 
 application must lie made to the Court appealed from : Lumsilca v. iJdrin, 10 
 P. R. II). 
 
 A txMid cannot be excepted to on the ground that the sureties are "standing 
 siiitiits of the aiiidicant, in the absence of evidence as to their insufHciency : 
 Xvnul v. Ciuiiiild SoiiUimi Ki/. I'n., 7 P. K. 313. It is irregular for the solici- 
 tor iif the apiM'llant to become surety in an apjieal bond . Ilrikill y, Wrm/i/, 1 
 Chy. Ch. 5; (•i-Kiii/ rnnih- Ri/. <'„.' y. (hilarin A- (^ifhcr Ri/. Co., 3 C. Li T. 
 173. 
 
 A married woman has be(;n held to be not a proper surety : Mu/lin v. Pascne, 
 f* P. R. 372. Hut see '/li<- M,ir,!<;t W<',nini\'i /'rojicrti/ Act, (R. S. O. 1887, c. i.S2) 
 and A>r/- v. Slrlji/i, 40 U. C. (^ B. at p. 134 ; France v. McF(trlnn<l, 43 U. C.Q. B. 
 L'Sl; Lucsuii v. Liihlhur, 3 Out. App. 77; and llcssin v. liaim', 2()nt.302. 
 
 An officer of the Court is not an improper surety : \Vilkiti'< v. McLcini, 7 
 CL. T. -). 
 
 When the title to land, in resjject of which a surety qualified, was not regis- 
 tered, it was h(dd that he was an insufficient surety unless registration of his 
 title was procnnHl : Ailam.sini v. AdKiiixiiti, it P. R. (Mi. 
 
 When an apptdlant gives luitice of niscontinuance of his appeal, the 
 iwixjiident may without further order, tax his costs of the appeal, and, in case 
 iif noil -payment, obtain an order for the delivery of tho apiieal bond to him 
 for suit : llni/licn v. Jli';/lics, 1!) C. L. J. 10. 
 
 Further 
 security 
 where it 
 maybe 
 ordered. 
 
 Exceptions 
 to sureties. 
 
 Discontinu- 
 aiico of ap- 
 peal— 
 elTect of. 
 
 80S. Where the judgment appealed from directs the Amount of 
 payment of money, the security required by Rule 804, shall btfL'i'venTo 
 be in double the amount so directed to be paid ; provided ^ta°y of^exc- 
 always that, in cases where the security to be given shall ^]^l°}^ 
 ''e in a sum above $2,000, it shall be in the discretion of the juugment 
 
676 
 
 Rules 
 809-811. 
 
 is for pay- 
 ment of 
 money. 
 
 When dis- 
 pensed 
 with in 
 mortgage 
 cctions. 
 
 Suit for 
 account. 
 
 APPEALS. 
 
 Court appealed from or of a Judge thereof, to allow security 
 to be given by a larger number of sureties apportioning 
 the amount among them as may appear reasonable ; and 
 provided further, that, where the amount by the judgment 
 directed to be paid exceeds $10,000, it shall be in the 
 discration of the Court or Judge to allow security to be 
 given for such amount less than double as may appear 
 reasonable. Ajip, 0. 4. 
 
 It has befii iielfl that Ittilc S04 (4) does not iiji)»ly to apjieiils from jwig- 
 iiients, in inortgiigt^ eases h)v foreclosnrt-, oi' sauf, simply : Hank cf I'pjKi 
 Canada v. I'olirdff, 8 XT. C. L. J. 328, but where meh a jnclgnieut also contains a 
 jjorsonal order for ])ayment of the mortgage debt, tlien the snb-.sectioii |4i 
 would ai>i)ly and security iinist be given before (execution can be stayed. 
 
 Where, in a suit for an account, at the hearing of the cause, a siuu of inoiipy 
 was directed to \n: \n\\A into Court, pending a reference to take tiie accounts, 
 it was held that proceedings might be stayed on .snch direction, jiending an 
 appeal, upon security being given: Whitehead v. Bii(/'iil(i d' Lair llnrimRy. 
 t'".,7(Jr. .WS. 
 
 The Court has no discretion, on an ap[)«'al to the Sujjrune Co\irt of Canada, to 
 increa.se the amount of security (fixed by K, S. C. c. 135, s. }<i, at iS.'JOO,) because 
 of the number of resjiondents : Archer v. Severn, 12 P. R. 472. 
 
 vviiere sale MOSI. Where the iudgment appealed from directs the 
 
 Ol* QSllVGl'V V ^j ±. ^ 
 
 of posses- sale, or delivery of possession, of real property, or chattels 
 SV^^'^'^'real, the security required by Kulc 804, shall be taken 
 ordered, [j^ double the yearly value of the property in question, 
 unless the Court appealed from, or a Judge thereof, other- 
 wise directs. App. 0. 6. 
 
 The Court refiised to stay execution of a judginent for defendant in replevin 
 fi)ra mouth to enable the plaintiff to give security : Seoll v. Varrelh, 2011 ('. 
 (I B. 4^5. 
 
 SIO. The parties to every such bond as sureties shall 
 by affidavit respectively make oath that they are resident 
 householders or freeholders in Ontario, and severally worth 
 the sum mentioned in the bond, over and above what will 
 pay and satisfy all their debts ; and the affidavit may be in 
 the form No. 209 in the Appendix. App. 0. 6. 
 
 Hll. The bond, with an affidavit of the due execution 
 thereof, and affidavit of justification, shall be deposited with 
 the proper Eegistrar of the Court appealed from in Toronto, 
 and shall be deemed to be perfected and allowed, unless 
 within 14 days after being served with notice thereof the 
 respondent moves for its disallowance. App. 0. 7. 
 
 The Umd, and affidavits of execution, and justification, are seiiarare (Iwn- 
 ments, and each nnist l)e stamped with a projjer tiling stamp : AlelkUt v. Smnri. 
 1 Chy. Ch. 2(;i». 
 
 The affidavits of execution, and justification, .should l)e entitled in tin 
 
 Affidavit of 
 justifica- 
 tion to be 
 made by 
 sureties. 
 
 Hond and 
 affidavits 
 to be filed. 
 When 
 allowed. 
 
}„. ..ntitlc'l in til'- 
 
 HIGH COURT APPEALS. 
 
 The affidavit of justification cannot be disiiensed with : Doimellij v. Jones, 4 
 Chy. Cli. 48. 
 
 Where the ivsi>ondent objects to the sufficiency of the ))ond, he must move 
 to disallow it, or it will, under thi^ Rid?, stand allowed after the laps of four- 
 teen day from service of notice of its filing. The motion should be .nade in the 
 Court ai>])ealed from. The application may be entertained by the Master in 
 Chamix>r.s, or, when the bond is filed in an outer Court, by a Local Master, or 
 County Court .ludge, having jurisdiction : see liulrn 41, 138 ; Br'.;,ham v. Smith, 
 1 Chy. Ch. 3;M. 
 
 Affidavits may be read in o])i)osition to tlu! affidavits of justification of the 
 sureties : Ciimphcll v. lioyal. ('itnadian Batik, (> P. R. 45; Bri;ihavi v. Smith, 1 
 Chy. Cli. 334 ; and the sureties are also liable to cross-examination on their 
 affidavits of justification : Rulf T-Til, and formerly might, under Chy. O. 2(58, be 
 so examined by being served witli an ai)pointment and subixena though no 
 motion against the bond was i)ending: llwihcs v. IlM/hcn, 17 C. L. J. 110; 1 
 C. L. T. 1H!( ; sal qiuvri' under the |)resent Rule .577. 
 
 See also Firth v. Ri/idi, 20 ('. L. J. 17i) ; and notes to Rule 807. 
 
 Where the liond stands allowed \inder this Rale, by reason of the lap.se of 
 fourteen days from its filing, a Judge's fiat to the sheriff to stay execution may 
 to obtained ; Ru!'' 80"). IJut where the appellant claims to ijtay execution 
 before the fourteen days have expired, t''eu a special a|)plication for that pnr- 
 |XBe is necessary imder the following Rulr. 
 
 Where tiie api)eal to the Court of AiJiieal is dismissed, an action on the 
 appeal txuul will be stayed, wliere the api)ellant has given p"oper security, and 
 is prosecuting an appeal fnmi tiie decision of the Court of Aj)peal to the Privy 
 Council : McLmrn v. Sh,,h<,i, 10 P. \i. S>^ : lit C. L. J. 401. 
 
 677 
 
 Rules 
 812-814. 
 
 .Motion for 
 disallow- 
 ance of 
 bond when 
 made. 
 
 Affidavits 
 may be 
 used. 
 
 Sureties 
 may he ex- 
 amined. 
 
 Fiat to 
 stay exe- 
 cution, 
 when 
 granted. 
 
 Action on 
 appeal 
 bond, when 
 staved. 
 
 Jil2. The appellant may, after such deposit, make a special np- 
 special application, before the expiration of 14 days, to stay stay' execi°- 
 
 execution in 
 App. 0. 8. 
 
 any of the cases mentioned in Rule 804. bo m"ae^ 
 
 HIS. The appeal shall be a step in the cause or matter Appeal to 
 in which the judgment complained of was given, and shall [ho^auie" 
 be upon a case to be stated by the parties, or in the event JJ'J.'j'jJ.i'"" 
 of difference to be settled by the Court appealed from, or a stated. 
 Judge thereof, and shall set forth so much of the pleadings, 
 evidence, affidavits, documents, and the ruling or judgment 
 objected to, as may be necessary to raise the question for 
 the decision of the Court of Appeal. R. S. 0. 1877, c. 88, 
 
 3.31(1). 
 
 Tile foniial judgment as drawn up must lie printed. That is, tlit> subject of 
 tlie.apiK'al and not the reas(ms upon which it is founded : Thomsiui v. Rdhinnon, 
 10Ont.A|)ii., at p. 184. 
 
 SI4. Alter the security has been perfected, the appel- After secu- 
 lant shall prepare a draft of the case mentioned in the pre- fecLl'CcaRe 
 ceding Eule, and shall submit the draft to the respondent, pawd-^' 
 who shall return the same within 4 days, with his modifica- ^^^{^^j^j^'® 
 tions or suggestions, and in the event of differences, the *» respon- 
 appellant shall give 2 clear days' notice of an application to 
 the Court, or a Judge, to settle the case. App. 0. 9. 
 
 i * I 
 
€78 
 
 APPEALS. 
 
 Rules 
 816-819. 
 
 Co-defen- 
 dants not 
 entitled to 
 notice of 
 settling 
 case. 
 
 Baisiu^ 
 new points 
 on appeal. 
 
 The security referred to in this Rule is the security for §400 fur the costs (if 
 api)eal under s. 71 of the Act, and not the security required to bo R^iveii in order 
 to secure a stay of execution under Ruk 804. 
 
 When one of several defendants ap])«als, tlie other defendants are not 
 entitled to notice of settling the case, even though the ])laintiff claim relief 
 over against them : Freed v. Orr, fi Ont. App. (>!)0 ; and see I'lile 828. 
 
 The Court, or Judge, to settle the case in the event of the i)arties differing, 
 is the Court api^ealed from or a Judge thereof : see Rale 813. 
 
 The case should only contain so much of the proceedings as is necessary to 
 raise the questions involved in the ajjpeal. In ParnmiK v. Standard Ins. Co., 4 
 Ont. Ajjp., at p. 330, Burton, J. A., in remarking upon the unneces.sary length 
 of the case, said : " Itapi)ears to us to be a very grave abuse and violation of 
 the Rules we have made on the subject, and we do not intend to iiniHjse uikmi 
 the Registrar the task which the api)ellantH have cast u])on us of wading 
 through this mass of matter for the puriwse of discovering whether some ixir- 
 tion of it may properly be applicable to this appeal, but we disallow the whole 
 of the appeal books in the taxation. If a similar case should occur again after 
 this warning it will be our duty seriously to consider whetlier it is not suffi- 
 cient reason for refusing the whole costs of the appeal." 
 
 If the notes of the evidence taken have Vieen lost, tlie Court of Apjieal 
 may allow the evidence to lx> taken over again : A'.-r parte Firth, Re Ciwhitnx, 
 19 Ch. D. 4l!» ; 51 L. J. Chy. 473. 
 
 A new piint may not be allowed to lie raised in the Court of Appeal, where 
 if raised, it might have 'v-en met by evidence : Ih. 
 
 Where as a matter of ) (leading certain issues were not raised, but at the trial 
 had been treated as if raised, the objection was not allowed to be taken in the 
 Court of Appeal : Kennan v. Murphii, 8 L. R. Ir. 285. 
 
 Where an ai)i)eilant succeeds uj)on a point not atljudicated ui)on in theCourt 
 below he may not be allowed his costs : Goddard v. Jeffrei/^, 40 L. T. N. S. il04; 
 Paffe v. AuHtin, 7 Ont. App. 1 : Van, Vdser v. Hiighaon, 9 Ont. App. 300; Coo/xr 
 V. Cooper, 59 L. T. N. S. 1. 
 
 In the Privy Council an apj>ellant is not allowed to take a point not taken 
 in the Court Ijelow: Corporation of Adelaide v. White, 55 L. T. N. S. 3. 
 
 Name of SIS. The casG shall state the name or names of tlie 
 be8tate°d. Judge 01' Judges appealed from. 
 
 Beasonsof, S16. The appellant shall serve his reasons of appeal 
 
 app^ai-to along with, and as part of, the draft case mentioned in the 
 
 be served. 2)receding Kules, and the respondent shall serve his reasons 
 
 against the appeal, within 10 days from such service, or 
 
 within such further time as a Judge of the Court of Appeal 
 
 may allow. App. 0. 11. 
 
 hTd^uiLit SIT. If the appeal is from a part only of the judgment, 
 appealed the reasons of appeal shall specify the part. App. 0. 12. 
 
 Neeject^i^'f ^ H\H. If the respondent neglects to serve reasons against 
 trseive"^ the appeal, the Court may hear the appeal ex parte, m^ 
 afiaiuBt ap- give judgment thereon without the intervention of the 
 effecTof. respondent. App. 0. 13. 
 
 Appeal 819. Upon being served with the respondent's reasons 
 
 pruJted. ^ against the appeal, or upon his having made default in 
 
 ' 
 
HIGH COURT APPEALS. 
 
 679 
 
 service thereof, the appellant shall cause appeal books to be J.'^*" 
 printed containing the case as settled by the parties, or the 
 Judge, and the reasons for the appeal, and the reasons 
 against the appeal, if such latter reasons have been served 
 as aforesaid, and any notice given under Rule 821, and shall Number of 
 forthwith deliver one of such copies to the Registrar of the delivered. * 
 Court of Appeal, by whom the same shall be filed as the 
 stated and settled case, and 10 copies for the use of the 
 Judges and ofHcers of the Court ; and also 30 copies for the 
 purpose of being delivered, in the event of an appeal to the 
 Supreme Court of Canada, to the party appealing to that 
 Court, for use upon such appeal. App. 0. 14, 69. 
 
 820. The respondent may, after such printed book Leave to 
 has been delivered to the Registrar, apply to a Judge of reasons 
 tlie Court of Appeal for leave to serve his reasons, upon peai?after' 
 affidavit accounting for the delay, and such leave may be \°°^^^^ 
 given upon such terms as the Judge may think proper, may be' 
 App. 0. 15. ''"'"*^'^' 
 
 .S2I, A cross appeal shall not under any circumstances cross ap- 
 be necessary, but if a respondent intends upon the hearing cls^sary—^ 
 to contend that the decision should be varied, he shall with }JJ'°g'^fn^" 
 his reasons against the appeal give notice of such conten- lieu of. 
 lion to any parties who may be affected by such contention, 
 and such notice shall concisely state the grounds of such 
 contention in the same manner as reasons of appeal are 
 stated. The omission to give such notice, shall not dimin- 
 ish the powers conferred by Act upon the Court of Appeal, 
 but may, in the discretion of the Court, be ground for an 
 adjournment of the appeal, or for a special order as to costs. 
 App. 0. 16. 
 
 Tliis Rii/c is suhstantially the same as the English R. Sup. C. 1871"), O. 58, r. 0, 
 (WS3, R.870). 
 
 Notict' by way of cros.'^ aii))eal will "onu^ on with the original apjwal : see 
 ('muii \. Niehol/n, 7 L. R. Ir. 107. 
 
 Notici' l)y a respondent under the English Rule to vary the decision of the 
 Ciuirt was i)roceede(l ui)on, thougli the point was one in which tiie original 
 aplHllaiit liad no interest: Ralph v. Cur rick, 11 Cli. D. 873. But the Co\irt 
 will nut. under the jKiwer contained in tiiis Utile, entertain a cross a|)]jeal 
 merely iin a ((uestion of costs : Harris v. Aaron, 4 Ch. 1). 74!». 
 
 Where re:. poiulents gave n(.)tice of intention to have the judgment varied, and 
 l)iitli appeals were dismissed, the appellants were orf'-jred to pay the costs, 
 I'xcept siiuh as were occasioned by the notice : Tlir Liinrtttd, 4 P. 1). 20. 
 
 Where there were two respondents, one of whom gave a cross notice aflfecting 
 tiieiither resnondent, the appellant, whose appeal was dismissed, was ordered 
 til pay half tlie costs of both the resjmndents, and the unsuccessful respondent 
 in the cross appeal was ordert 1 to pay half the costs of the other respondent : 
 
Where 
 relief over 
 claimed by 
 resjiondent 
 against de- 
 fendants 
 who do not 
 appeal. 
 
 •c<r 
 
 
 680 APPEALS. 
 
 Rules Harrison v. Cornwall Mineral Ri/. Co., 18 C\\. D. 334. Where, however, the 
 
 823, 823. costs could not have been materially increased by the notice, no iipix)rtioninent 
 
 was made but a fixed sum was allowed for costs incidental to the notitr- 
 
 Robinson v. Drakes, 23 Ch. D. 98. 
 
 Where after a cross notice given the a[)]x41ant discontinues or abandon!?, thf 
 respondent's notice is to b«! treated as a cross appt^al, but the ap))fHant niay 
 bring forward the matter of his ai)peal by way of objection to the cross appeal • 
 '' The Berswiii;/," 10 ¥. D. 18. 
 
 Where one of several defendants apimaled, and the plaintiff claiiiiccl relief 
 over against the co-defendants who did not apjieal, service of notice of appeal, 
 under s. 71 of the Act, supra p. 70, on stich co-defendants was held unnecK- 
 sary but it wtis held that they were sufficiently notified by being served with tin 
 reaixmdent's reasons against the appeal, a cojiy of the printed appeal Ixwk, and 
 notice of tlie hearing of the apjieal : Freed v. Orr, (} Ont. A])]). (iiM). And 
 where a pl.iintifl apfHsaled as against one of two defendants, and claimed iim 
 relief as aerainst the other defendant, but gave him notice of tht^ appeal on tln' 
 ground that his co-defendant might claim relief over against him, wliicli, 
 however, he did not do, the aijjieal as against the defendant as to wlitiniii') 
 relief was claimed vas u])on an interlocutory motion dismissed with costs ti)l«' 
 paid by the plaintiff : O'Sitllivan v. Lake, lij P. R. .^.W. 
 
 what°t'cf' ^2-. The reasons for and against the appeal shall con- 
 contain, tain a statement of the points of law intended to be argued, 
 and the authorities relied upon. App. 0. 17. 
 
 books'^ S23. The appeal book shall be printed on paper of good 
 
 how to be quality, on one side of the paper only, and in deniy-qiiaito 
 prmted. f^j-j^^ ^m^ small pica type leaded ; and every tenth line of 
 each page shall be numbered in the margin, the numbering 
 to be from the top of each page and not from the beginninj:! 
 of the book ; and the size of the books shall be 11 inches in 
 height, and 8^ inches in width. An index showing in 
 detail each pleading, order or entry with its date, each 
 witness by name, each exhibit or other document witli its 
 description and date, and all other principal matters, shall 
 be added ; it shall be at the beginning of the book and is not 
 to be arranged alphabetically, but in the order in which the 
 matters are printed in the book. The opinions of the 
 Judges of the Court appealed from shall not be printed 
 where the same have already been issued in the regular 
 reports, but a reference to the same shall be given in the 
 appeal books, and shall be sufficient. The style of the 
 cause in the Court below shall be used and retained in the 
 appeal book, and in every proceeding in the Court of 
 Appeal, the designation "appellant" or "respondent" 
 being added, e.g., 
 
 Between A. B. {respondent) 
 
 and Plaintiff. 
 
 CD. (appellant) 
 
 Defendant. 
 
 App. 0.67, 68. 
 

 HIGH COURT APPEALS. 
 
 681 
 
 The following directions resjiccting the printing of apiM-al b()t)k.s hav<^ btit-n RuJes 
 issue by thf; Court of Appeal. 824-8:6. 
 
 The Registrar, before receiving any ap|)eal b<K)k, is to st'e that the following 
 requirements have been obaervecl : 
 
 1. Pajjer : good quality, printed on one side only. (The l)ook should have 
 the printed page on the left hand side). 
 
 2. Fonn : demy quarto. 
 
 3. Type : pica leaded or small pica leiuled. (Pica leaded preferred). 
 
 4. .Miirt,'inal numbering of every tenth line of each page. 
 
 The nuinl)ering of the lines is not to run on through the book, but the lines 
 of Kich page are to be numbered separately, '■..'/., 10, 2(1, IV), 40. 
 
 f). Index of princii)al matters. 
 
 The index is to shew in detail " 
 
 (a) Each pleading, rule, orrler, or (nitry, with its date. 
 
 (h) Eiieh witness by name. 
 
 (i) Eivcli exhibit or other d(Xiument, witii its dl■^•c^i|>tion and date. 
 
 The index is to lie at the beginning of the book, and is not to be arranged 
 ali)liabetically, but in the order in wTiicli the matters an^ i)rinted in tlie book. 
 
 The Registrar is also to see that the title ^)age contains a correct state- 
 iiitiit of the Court or .Ti"lg« whose judgment is ap|)ealed from. An apjieal 
 from a single Judge is to be stated to be an appeal from the .fudge, giving 
 his nanus and no appe.Al is to Iw called an apiM'al from the (Queen's Bench 
 Division, or from the Chancery Division, or fnnn the Common Pleas Division, 
 unlr.ss it is from the judgment of a Divisional Court. 
 
 The ai)peal book is to contain the date of the first proceeding and the date of 
 tlie filing of the several pleadings at the commencement of the copy thereof : 
 Rule 84.'). 
 
 When Orders 07 and 08 (now Rk/i: 823) were iiromulgated, a notice was iulded 
 iw follows ; 
 
 NoTK-fi/'/c 1!) (now 824) which f)recludes the Registrar from receiving books 
 milesH 'printed according to the foregoing terms, will be- rigidly enforced. 
 X(U'T tlie al)ove intimation parties will only have themselves to blame 
 should the books be rejected by tlu! Court on account of tlieir not being jn'oiH'i'ly 
 arranged. 
 
 524. The Refristrar shall not tile the case without the ,,., 
 leave of a Judge if the preceding Rule has not been com- ueKistrar 
 plied with. App. 0. 19. ",?se." 
 
 525. If the press has not been carefully' corrected, the t-osts when 
 Court may disallow the costs of printing, or may decline to '^^'y'^'^'* '" 
 hear the appeal, and make such order as to postponement 
 
 and payment of costs as may seem just. App. 0. 20. 
 
 In B'lrhi-y V. Morton, 2 C. L. T. 340, Burton, .T. A., said : " T think th«'re is 
 110 reason to interfere with tiie previous decision in this Court as to allowing 
 ten cents a folio for revising proof. It is, I think, little enough if tlie work is 
 projierly (lone ; and if not properly dime then the Court should adhere to its 
 RidiMv\ disallow this charge altogether."' 
 
 S30. The printed case, and the copies thereof for the J'"'" f?' 
 use ot the Court, shall be delivered to the Rogistrar, within appeal 
 thirty days after the allowance of the security, unless the '"'"'"'■ 
 
 \i.vi-V~'hlVtiV^j 
 
682 
 
 Hules 
 «27-829. 
 
 Dismissal 
 of appeal 
 for iion- 
 dellvei-y. 
 
 Appeals, 
 liow en- 
 tered for 
 heariuR 
 
 Notice of 
 hearing. 
 
 APPEALS. 
 
 time shall be extended by the Court of Appeal, or a Judge; 
 and in the case of neglect or omission by the appellant to 
 comply with this Rule, the respondent may apply to a Judge 
 upon 2 clear days' notice to the appellant for an order dis- 
 missing the appeal as for want of prosecution, and the 
 Judge may thereupon make such order as to dismissing the 
 appeal, or otherwise, as may appear just. App, 0. 21. 
 R. S. 0. c. 38, 8. 31 (2). 
 
 The "security " referred to in this Rule is for che costs of the appeal, and not 
 the security required to be given in order to prtxjure a stay of execution. 
 
 The full Court will not interfere with the discretion exercised by a single 
 Judge under this Bide; O'Xci// v. Tnirellem Inxuraace Co., ()nt. Ann. 54 • 
 J'lutt V. (.•niiid Tnoik Ri/. Co., 12 P. R. 380. 
 
 Where notice of a])i>eal had been served, but no security given, a motion to 
 dismiss the appeal for want of prosecution was refused: Htnith v. Smith'w 
 P. R. ; 22 C. L. J. 222. 
 
 S2T. Appeals shall be entered by the Registrar upon 
 the list for hearing at the next regular sittings of the Court 
 which shall commence at least 8 days after the receipt by 
 him of the printed copies ; and the appellant shall serve 
 the respondent or such respondents as are directly affected 
 by the appeal, with notice of hearing, at least 7 days before 
 the first day of such sittings ; and he shall at the same 
 time deliver to the respondent two printed books. App. 0. 
 22. See R. S. 0. 1877, c. 38, s. 32*. 
 
 An apiiellant ought to serve notice on all parties who will be affected by the 
 order of the Court of Ajjpeal ; and if such person is not served, he may apjjear 
 without service and obtain costs : Ri' Xcw Oi/liio, etc., 22 Cli. D. 484. 
 
 orX- m?-^ S28. If, in the opinion of the Court, any parties not 
 ties not served ought to be notified, the Court may direct service to 
 bef notified, be made, and may postpone the hearing of the appeal for 
 
 that purpose, upon such terms as may seem just. App. 
 
 0. 23. 
 
 In Rf Salmim, Priest v. rpplehj, (Jl L. T. N. S. 14(1; W. X. 18,S!I, 100, the 
 Court directed third parties to Ix" served, who, if the judgment witc reversed, 
 would have to indenmify defendant, tlie defendant so desiring, tiiougii the 
 Court considered that tlie third parties were only indirectly affected. The 
 defendant was ordered to i)ay the costs of the adjournment. 
 
 Default of 
 
 garties at 
 eariuf!— 
 effect of. 
 
 J430. If either party neglects to appear at the proper 
 day to support, or resist the appeal, the Court may hear 
 the other party, and may give judgment without the inter- 
 vention of the party so neglecting to appear, or may post- 
 pone the hearing upon payment of such costs as the Court 
 shall direct. App. 0. 24. 
 
HIGH COURT APPEALS. 
 
 683 
 
 J430. Tlie decision of the Court of Appeal shall be fy^^^„ 
 certified by the Registrar of the Court of Appeal to the,i,,jJcierk 
 proper officer of the High Court, who shall thereupon make t" certify 
 all proper and necessari' entries thereof, and all subsequent appeals, 
 proceedings may be taken thereupon, as if the decision had 
 been given in the Court below. R. S. 0. 1877, c. 38, s. 44. 
 
 831* Where the Registrar considers a notice of settling certiHcate 
 the certificate of the Court of Appeal to be proper, he shall eettiemeiV 
 appoint a time for the purpose, and two clear days' notice °^' 
 thereof shall be given to the unsuccessful party or parties. 
 App. 0. 31. 
 
 It wan formerly the practice in the Court of Chancery to apjily ix purt'' in 
 Cliambers for an order making the certificate of tlie Court of Ai>|)eal an order 
 (if the Court of Ciiancery l)efore jiroceeding to enforce it. In the Connnon Law 
 Courts the isisue of a rule upon the certificate \va,s heltl ininecewsary : Re Mv. I I'tli ur 
 and the Tumiship iif Siuithwuhl, 8 V. R. 2". 
 
 Since the Jud. Act, though not by reason of any jn-ovision contained in it, 
 tiie Master in Chanil)ers has held that an order in Chambers of the High 
 Courtis unnecessary : Frrctl v. (h-r, !t P. K. 181; LfWuiiii v. Cuiutdn Furuwrs 
 Iiix. I'll., ill., 185, and that the Registrar of the projier Division of tlie High 
 Court, acting inider tlie ju'esent Rule 830, can correct the original judgment 
 from the certificate of the Court of Apiieal. Tins is the i)ractice now to be 
 followed : see Lutrsnii v. I'auntht Fni-iinnv, lic, 8 Ont. Api). (»13 ; though there 
 are several cases in wliicii a contrary o])inion is ex|)re.ssed : see yatiimtil Inni'r- 
 (iu,r C<: V. AV/c.""/', !• P. R. 203; iVo/'iv// v. ('ihkiiIii S„Htlieni iJ,//. Cn., !t P. R. 
 .S39. Process is then issued on the judgment as corrected : Lairnnii v. Canada 
 t'lirnier.s, rtc, 8 Ont. App, (il3. The inconveniences atti'iiding such jmicedure 
 are pointed out in l!t C. L. .1. 302. 
 
 The mode of making the (nitry differs. In the Ciiancery Division the certifi- 
 cate of the Court of Appeal is entered in tiie judgment book, and a note refer- 
 ring thereto is made in the margin of the entry of the original judgment, or 
 order, affected thereby. In the (Queen's Bench and Common Pleas Divisions 
 anew judgment is drawn up, entitled in tliat Division, reciting the previous 
 jwlgnient, the appeal, and the result thereof as certified, and then concluding 
 with tlie words, "It is tiierefore considered that (■vc/^/z/f/ yiiW/; the niikitauce of 
 tlifji'dijiiii'iit, Id aimnlfd hii /lie C'""/V nf Ajipcal), 
 
 The Registrar in drawing up the certificate may introduce any i)r()per and 
 iisiuil i)r(i\isiou though not expressly ordered in the judgment delivere(l on the 
 .•ipiH^al, and this authority extends to the insertion of directions f'.ir the restitn- 
 tinn of nionev paid in obedience to a reversed judgment : McKiiulsei/ v. Arm- 
 firinlil, 11 P. R. 200. 
 
 Any party dissatisfied with the minutes of the certificate, may move to vary Moving to 
 them : <i>;in-u/ Sluor ami Truxt 0>. y. Wetleu, 20 Ch. D. 130, and see Rule "A vary min- 
 tt m utes of 
 
 ',,' . certificate. 
 
 Wlien the certificate drawn up and issued, does not conform to the judgment Qr to 
 of the Court, a motion may be made to amend it so as to make it confonn amend 
 tliereto : .',. J<jln> v. Ri/kert, 3 C. L. T. 11!) ; McKindsei/ v. Armstnmij, 11 P. R. same. 
 2(K,i. 
 
 H32. An appellant may discontinue his proceedings by Appellants 
 giving to the respondent a notice headed in the Court and continue, 
 cause, and signed by the appellant or his solicitor, stating 
 that he discontinues such proceedings ; and thereupon the 
 
V, 111 "I n i\w 
 
 / ~j- 
 
 684 APPEALS. 
 
 833 83B I'espondent shall be at once entitled to the coats of and 
 occasioned by the proceedings in appeal, and may either 
 sign judgment for such costs or obtain an order for their 
 payment in the Court below, and may take ail further pro- 
 ceedings in that Court as if no appeal had been brought. 
 \\. 8. 0. 1S77. c. 38, s. 41. 
 
 Wliert! ail ajipt'llant has given notice of his intention to withdraw liis appeal 
 and has obtained respondent's consent, he uannot afterwards revoke it anrl 
 proceed with the ai)peal : ll'(//.v'</i v. (\i.vi\ 2<» \V. R. 7()H ; 44 L. T. \. S. 40- 
 50 L. J. ("hy. ntn ; 17 C. L. J. 3(i(i. 
 
 Wliere an ap|H'llant discontinued, it was lield thp.t no order for iiayment (jf 
 costs was necessary the present Rule 832, giving the resp<indent his costs, ami 
 tiie resjKtndent might therefore at once tax costs and obtain the bond for secur- 
 ity out of Court to proceed upon it : llii;ilii's v. //iii//ii:-<, V.I C. L. J. Id. 
 
 Htm, A respondent may consent to the reversal of thi 
 judgment, order or proceeding appealed against, by giving 
 to the appellant a notice headed in the Court and cause. 
 and signed by the respondent or his solicitor, stating that 
 he consents to the reversal of the judgment, order or other 
 proceeding, and thereupon the Court shall pronounce judg- 
 ment of reversal as of course. E. S. 0. 1877, c. 38, s. 42, 
 
 .vppeaito Hii4» No case shall be certified on an appeal to the 
 Court. Supreme Court of Canada, unless the proof sheets of the 
 
 judgments in the Court of Appeal have been submitted to 
 
 the Judges thereof for correction. Xeir. 
 
 (ii) County Court Appeals. 
 Original ^iiSt'i. For the purpose of avoiding unneeessarv expense 
 
 UELDors to '' 
 
 be certifiod in appeals from the County Courts — particularly in making 
 
 and trans - - --- ^ 
 
 mitted in 
 
 A rcRpon- 
 dent may 
 consent to 
 a rovoraal 
 of tlie judg 
 mcnt, etc. 
 
 C. { 
 
 poals 
 
 ap- 
 
 copies of papers — it is oi'dered that the pleadings, motions. 
 orders, and other papers certified to the Court of Appeal 
 under section -41- of the Act respecting County Courts, shall 
 be the original papers filed in the County Court ; and when 
 the evidence has been taken by an official reporter, his 
 transcript of the evidence used, ov prepared for use, in the 
 County Court upon the motion which is the subject of the 
 appeal, shall be the evidence so certified. 
 
 (a) The said papers, together with the Judge's charge, 
 and his judgment or decision, and also the evidence when 
 returned!"^ uot taken by an official reporter, and all objections and 
 exceptions to the evidence, shall be fastened together and 
 transmitted with the Judge's certificate to the Registrar of 
 the Court of Appeal, who is to return them to the County 
 Court when the appeal is disposed of. 
 
 Pai)or8— 
 bow to be 
 trans- 
 

 COUNTY COURT APPEALS. 
 
 G85 
 
 sts of and 
 may either 
 iv for their 
 urtber pro- 
 jn brought. 
 
 Iraw his apjiwil 
 
 rt'voke it and 
 
 L T. N. S.40: 
 
 For payment nf 
 t his costs, anil 
 ! lioiid f(irscc\ir- 
 i. J. 10. 
 
 ersal of tho 
 ,t, by givmg 
 and cause, 
 stating that 
 (lev or other 
 lounce judg- 
 c. 38, s. 42. 
 
 )peal to the 
 heets of the 
 submitted to 
 
 ^ary expense 
 •ly in making 
 figs, motions, 
 irt of Appeal 
 Courts, shall 
 •t ; and when 
 reporter, his 
 )r use, in the 
 ubject of the 
 
 dge's charge, 
 .-idence when 
 bjections and 
 together and 
 ) Registrar of 
 ;o tbe County 
 
 (b) It shall not be necebsary to certify or transmit the ^'^« ^^^ 
 evidence, or the objections or exceptions thereto, in any whelrneeii 
 case in which the appeal is from a judgment or decision '^'j^'^^^"' ""'' 
 upon the pleadings, or upon an action not founded upon the 
 evidence. App. 0. 39«. 
 
 The reft'reiice to wctioii 41 in tiii.-i Jiiilc in no doubt lui error for fvv. T)! : nev 
 K. S. 0. c. 47, H. 51. 
 
 R. S. (). c. 4(i, s. 51, whicii is tiif section intended to 1k' referred to in 
 this Riilr is ivs follows : 
 
 'ni. I'lnni tlieliond tn-ing so approved, or the dejKisit iM'inffpiiid intoOourt, tlu' 
 .ludtfe shall, at the recjuest of the iipix'llant, certify under hi.s hand to the Court 
 of ApiH'al, the pleadings in the cause, and all motions, nde.s, or orders, made, 
 griHitt'd or refiised, therein, together with tlu- .Fudge's cliarge, and the judg- 
 ment or decision on the .same, and, where a trial lias T)een had, the evidence and 
 all objections and e.\cei)tionM thereto, and all other papers in tlie cause affect- 
 ing the ([uestion raised by the appeal." 
 
 Tills section, however, is modified by sec. 45, which provides that the .Tudg(! 
 shall only be required to certify the motions, rules, orders, affidavits, evidence, 
 and other materials, necessary for tht! full miderstanding of the matter in 
 a|i|)i'al, together witli his judgment or decision on tiie same. 
 
 The words " ujm)!! an action " in clau.se ('*) are probably intended to mean 
 ''iilioii a judgment in an action.'' , 
 
 COUNTY COUUT APPEALS. 
 
 Countv rViurt appeals are regulated bv the provisions of J{. S. C. c. 47, ss. 
 I'l-iVJ. 
 
 Cases in which an Appeal lies from County, and District Courts. - An api)eal Caries in 
 heifroni Countv and l)istrict Courts to the Court of Appeal from a judgment lyiaii i/J?' 
 liirected by a .Fudge of any such Court at or after the trial in a ciise tried from 
 liy him without a jury, or after the trial u}x)n the special findings of the ciounty 
 jury in a case tried with a jury : K. 8. O. c. 47, s. 41, s-s. 1, l)ut, instead of Courts, 
 apfiealing to the Court of Apjieal, a motion may be made to the County 
 (^lurt for a new trial, or to set aside the judgment on any ground except 
 that upon tiie evidence given, the judgment so directed is wrong in law : 
 /''., .s-8. 2 ; and see NiirUm v. McCahc, 12 P. R. 500; and in cases triced witli 
 a jury instead of ajmealing to the Court of Appeal, a similar motion may 
 he made In-fore tiie County Court for a new trial or to set aside the judg- 
 ment directed to be entered on the findings of the jury upon any ground 
 except that tlie judgment so directed to be entered is wrong in law : Jb., 
 s». .S. Either jiarty may appeal from the judgment of the County Court 
 uiwn apiilicatioii nuule under sub-sections 2 and .3, nupru : III., s-s. 4. 
 
 An appeal also lies to tlie Court of Appeal at the instance of any party 
 to a cause or matter from every decision made by a .Judge of a County 
 fjoui't under any of the jM)wer8 conferred on him by any Miilex of Court or 
 statute, unless pinvision is therein made to the contrary ; and from every 
 decision or order made by a Judge of a County Court sittings in Chamliers 
 under the provisions of tlie law relating to the examination of debtors : see 
 Rulea !l2t), li sci/ ; attachment of debts and i)roceeding.s against garnishees : 
 see fiw/cv !i;ir>, (7 ,\(v/ ; and from every decision or order made in any cause or 
 matter disposing of any right or claim, provided always that the decision or 
 iTder is in its nature final and not merely interlocutory : R. S. (). c. 47, s. 42. 
 
 Prior to 45 \'ict. c. 0, there could be no apjjeal from the County Court in 
 garnishee i)roceedingR : >S<(f„ v. IliMan/, (> Ont. Ai)p. 546. Although the 
 jurisdiction of tiie Court of Ai)i)eal is not excluded in api)eals from the County 
 Court, wheiv a new trial lias l)een granted, or refused, as a matter of discretion, 
 sWl tlie Court will not readily interfere in such eases with tlie discretion exer- 
 
686 
 
 APPEALS. 
 
 Rule 83S. 
 
 <s<. 
 
 Casos ill 
 which ap- 
 peal lieltl 
 not to lie 
 from 
 County 
 Courts. 
 
 Wlio may 
 appeal. 
 
 Time for 
 appealing. 
 
 cIhwI \>y tln> .T\i(lge apiK-alwl from ; J/nn/rr v. Viiii.s/inii; (] Ont. .\|pii. IW" ; anil 
 Mcc Wi/siDi V. Jh'i'ii'ii, 7 Out. Api), 181; tlumgli it iniiv do so, \\ hiTc tlici'vidMiir 
 stroiiKly iircpoiuleratf'H in fiivoiir of the a|)pflliiiit : ('(ini/i/ni/ v. /'riim; ', (int. 
 App. XV). So nlso. wiu'i't' tlic .Fuclgi' of tlic County Court Hiids in favdiu' uf tlir 
 ri'.spoiKlciit on contradictory t'vidcnL'c, tlic Court of A, jicjil will iicit iiitcif. iv, 
 oven tliough. if the matter liad com»^ before it in the first iiiMtaiice, it wi.iiM 
 have decided otherwise: AVvv v. McKfini'ii, 7 Out. App. 0121. 
 
 Where a caHe i.s tried liy a .hulge of a County Court without a juiy and \\i- 
 gives judgment,anai)pealliesdirecttlierefrom to the Court of Appeal, iiud it is nut 
 necessary to apply in term to t\\v. County Court .Judge to review \\U decisiiPii: 
 Ju'ri/iimiii V. -l/cilf/oV///, 11 Ont. Ai)p. 731. Wiien the case li.is lieeii triedliya 
 junior .Tudge. the senior .fudge, and a.Iudge of anotiier County (!'oiut, havmi 
 jurisdiction to review iiis decision ; /h. An a)>peal lies from an order iiindc in 
 a Couiitv Court to enter judgment under 7<('/r 7S!t ; Vic///,- n/' .Miiinrsi'tn v. A'/., 
 14 Out. App. .S47. 
 
 An appeal will lie upon an interpleader order: Fi'rhmi v. /Ian/,; l-. (.', li) 
 C P. 32. An appeal will lie from a decision under T/ir /'nr/i/inn Art, ut\ n 
 HiHKjial case stated : Ri' X/inrir miil Hurt, 31 L'. C. <i. D. 0(13 ; and see t'limm 
 v. MUcIk-II, 3 Out. Ai.p. "ilO. 
 
 Formerly there could l>e no appeal after judgment entered : Mur/ilni v 
 X,„-thi-rii h'l. Co., 13 C. 1'. 32 ; />c//// v. I>lcl.-i,is„ii, 14 C. P. 142 ; ITn,,,/ v. Cr.iwl 
 Tnnik Hu. Co., lU C. P. 275 ; hut an ajipeal iiiiiy now he liad from any aii]ieal- 
 able decision, notwithstanding judgment has been signed, provided that 
 security lie given within ten days from the decision appealed against, or within 
 such further time, not exceeding thirty days, as the .Fudge of the County drnrt 
 appealed from may allow ; and in case tlu' appeal is successful the Court may 
 set a.side, or vary, the judgment : see K. S. O. c. 47, s. 43. 
 
 Cases In wbicta an appeal has been held not to lie. X( > api )eal 1 ies f r< mi any 
 
 decision of a .ludge of a ( 'ounty Court in contested i.iunicipal election priictrd- 
 ings : /tc'/iiin r.c i-eL, ili-ant v. VnhuHHii, 1 Out. App. (II!) ; \\. S. (). c. IH c, 
 2(»7. 
 
 The order of a .Tudge on an application to amend, was foniierly held imt 
 appealable: llcaniijna v. Sthtsim, 10 V, C. <i. V>. 4(13; and see .{ni/l'ii v. 
 Muiiii liiiililji iif Kiiiiistmi, Kj U. C. <,». U. 121 ; but .see Prtcrfciii v. MrFcrlinii', 
 4 Ont. App. 25 ; and a decision upon a case by consent without pleadings, was 
 fonnerly held not to be appealable : IliiriUnn v. KiU'W/.tmi, 17 l^ C. (^ li. 'M; 
 and wiieii a verdict is entered by consent, subject to the opinion of the .ludge 
 uiion the law and f.acts, no appeal will lie from his decision thereon : .^Icd'lh: 
 Wodilt'll, lit C. P. 213 ; but see now R. S. O. c. 47, s. 42, .fuiny. No A\i\m\ 
 lies from the ruling of the .ludge as to the right to Jbegin : I/nMim/.s v. F/ifmsl, 
 7 U. C. il B. .■)2(). 
 
 An appeal will not lie from the granting of a rule /(/',</ before it has lieeiiiiKule 
 absolute, or discharged : Jtohintmii v. RirlitirilKcii, 32 11^. C. <l. H. .^44; Imt it 
 seem.s that the rule absolute, or rule discharging the rule *(/.'•/, need not lie taken 
 out befort' ainx-al : I'eiUim v. (IroHd Tnhik I'n. ('"., 28 U. C. <i. I?. 3(17. 
 
 The Court foniierly refused to entertain an aiijieal, where the decision 
 turned wholly upon the (nidence, and involved no point of law : FniHi-r v. 
 McDniKihl, 3'U. C. (^ B. 385; nm,/l>'»/ v. Crdm: 4 IT. C. <,>. B. 122; M"ii„l,i;/ 
 V. As/inll, 23 U. C. i-i B. .S02 ; C/nrk- v. Ilurlhurt, (> C. P. 438 ; MvKlnMrn v, 
 Furbn, 24 U. C. (}. B. 17« ; llarrix v. Ruliii,s,:,i, 25 V. C. <^ B. 247. N<ir 
 where the .Tudge granted a new trial on the gnjuiid that lie had not sufticieiitly 
 directed the jury as to the law : Sumerx v. Lirinijatone, 24 U. C. (I. B. 04. 
 
 Who May Appeal.— Besides tiie actual oarties to the cause, persons suiiipor 
 being sued in the name of others, tliougn not mentioned in tlit^ record, iuijl 
 jiersonson whose behalf, or for whose benefit any suit is prosecuted or defended, 
 may appeal : see R. S. O. c. 47, s. 40. 
 
 Time for Appealing. — Xo time is exjiressly limited by the Statute within 
 which an appeal from a County Court must Ik' lixlged : but ))rocee(liii?s are 
 only authorized to b(! stayed for a i)eri(Kl not exceeding thirty days in all, to 
 enable the appellant to give the security required : R. S. O. c. 47, ss. 43, 4(i. 
 
 L'lli 
 
 seen 
 mi 
 ■III I 
 
 '/» 
 casi 
 
 the 
 
 Api 
 
.-vT-CIfl 
 
 COUNTY COURT APPEALS. 
 
 687 
 
 \\<\>. 337 ; m\ 
 
 •t' tlll'CVidMlLV 
 
 I'rinn; .') Out. 
 
 1 favmir (if tln' 
 
 IK it imcrfiri', 
 
 lllL'l', It WlrtlM 
 
 ii jiu-y and h- 
 
 I'ill.llllilit isllnt 
 
 I- liis (U'cisidii : 
 it'cii trii'd liy a 
 Cciiivt, liavH no 
 1 iirdt'i- inadf in 
 uii'ni'lo V. /'i'7'', 
 
 /;-',(/,■, u. c. 10 
 
 Liul sir t'lifum 
 
 v(l ; Miifiih'i V 
 W'liiiil V, fi'i'iim/ 
 
 I'ciin any apiiful- 
 ))riividt'd tliat 
 
 :aiiist, (ir within 
 
 If County f'cmrt 
 the Court niiiy 
 
 i-al lies from any 
 :dccti(/ui)roe«Hl- 
 . S. (). c. IM, s. 
 
 inucrlv lield not 
 
 I sff Aii'l'"' V. 
 
 ,( V. MfF"rliiiii\ 
 
 t idfadiuRS was 
 
 U. C. » >. H. r,W; 
 
 m of tlif •Tudtje 
 
 n'ou: .l/i''""v. 
 
 ;•((. Xo aviienl 
 
 //K/.v V. /iV/'di'*', 
 
 it has been made 
 ^ H. 344 : Init it 
 1 1 iiiit lit' taken 
 
 1^. r.. 3(17. 
 
 cri. till' (IffiMun 
 f law : !•'<■"'''''' ^'' 
 1^. 122 ; M"ii""".l 
 S- Mrh'lii.^lrn V. 
 (2. B. 247. N'T 
 a not suttitit'iit'y 
 C. *i. B. 04. 
 itt>rsons suinp or 
 
 1 the veconl, liU'l 
 utf'dordffHided, 
 
 le Statute within 
 t prom'dings i'f 
 tv days in a 1, to 
 ..; 47, ««. «. ^"' 
 
 All a|i|«'als, iiiiwcvt'r, must he .set down to 1m' licard at tlic tirwt nittingn of tii»' Rule 83S. 
 Ci'iut for till' licariiiK of arKunii'iits wliiuli siiall uoimiiciioo aftor tlio cxpiriition 
 (if thirty days from tlio dt'cisioii complaiiifd of : .sfo Jiit/i HJili. 
 
 Hiniday is not rcckoni'd in the thirty days wiicre it in the first day : Cooper 
 V lii'niii'. 3 ('. L. T. 1!IH ; nor \vi\cro it is tlic last day : .set' JtuI'- 47<'>. 
 
 Socnvity to 
 
 Security. ^Hvery aiipcUant must xivo Hfcnirity for such sum a.s tlio Judh't' be fjiven on 
 may din-ct, either by hond, or by payment into Court. iippcalu 
 
 tvom C C. 
 
 If a bond be pivni it nnist be executed by two per.'wns, whether named as cuniiiion 
 siiri'tit'H or as parties interested or otherwise, and nnist be for hucI) sum as the of bond. 
 JuiIk*' of till' Court appi'aled from directs, conditioned that the appellant shall 
 idiidi' by tlie decision of the cause by the Court of Appeal, and pay all sums of 
 mimey imd costs, as well of the suit as of the ai)peal, awarded and taxed to the 
 iipiiosite party : K. S. (). c. 47, s. 47. 
 
 Attiilavits of justification to the amount of the penalty of the bond, are to be Allldiivits 
 niiuli' by the obligors, and annexed to the bond, and anattida\it of the dui' of jiistittea- 
 exeeiltiiin of the iiond is also necessary. Tliese affidavits should be entitled in ti<'u. aud of 
 tlu' cause. The bond with the.se affidavits is then to be produced to tlie.ludge of e.xecution 
 till' Cmu't appeale<l from, to be a](proved by him, and, when approved, is to be ^^ fii'"d.' ** 
 tiled ill tile otficecif the Court appealed from, until the o))inion of the Court of 
 Appeal lias been given, when it is to be delivered out to the HUccesMful party ; 
 //-. ss. 47-4!l. 
 
 Whcin the Judge refuses to certify the j)roceeding.s on the ground of an 
 alleged iiisuttici'-ncy of tlii' bond, the ([uestion as to its sufficiency may be 
 tested by an apidication for a mandamus to compel the Judge to certify : 
 lOvlit't v. Il'.//.v, 17 U. C. (i. H. 545; //( ;•(• K,y„i(/„nt v. Pivulon, 21 U. C. (i. B. 
 
 4in. 
 
 But wliin the Judge has allowed the bond and certified the jtroceedings to Objections 
 the Court of Ajiiieal, the Court of Ajipeal will not refuse to hear the appeal, to sufli- 
 iinr will it entertain an a]i|dicution to strike out the apjK'al on objections top'C'cy.of 
 
 
 bond, how 
 taken. 
 
 the form, or amount, of the bond, or the sufficiency of the sureties, or on the 
 ground that the bond was not filed in due time ; I'l'iitmi v. (irniut Tnntk Itii. 
 Co., 2« U. C. <l. B. 3(>7 ; Mrl.illan v. MrLrlhm, 2 C. L. J. 2!»7 ; llmrurtk 
 V. FMihcr, 20 U. C. C^. U. 278 ; but see P,;i//,niil v. Jlml/i, 24 U. C. C^. B. 404. 
 Application-s to set aside the bond must be made to the Judge of the County 
 Court. 
 
 The appeal ijond, conditioned as prescrilied by the statute, is security Ixith 
 for the co.sts of the appeal, and also for the costs below : Wudildl v. Rohcrtsmi, 
 % U. C. (l B. 37«. 
 
 Stajrlng Proceedings. — Proceedings may lie stayed for thirty days to enable Staying 
 security to lie given : R. S. O. c. 47, "'. 4(). The allowance of thosecurity. is proceed- 
 in practice regarded as a stay of further jiroceedings, but there appears to be !"S8 r«"*l- 
 110 provision in the Ruh'fi or statutes, which makes the perfecting of .security'"^ apiieaJ. 
 i;)s« /((r?i) a stay of proceedings pending the apiieal, though jKissibly in some 
 case.s the respondent would find difficulty in enforcing his judgment, pending 
 tlieapiK'al, owing to all the original papers being transmitted to the Court of 
 Apiieal under Itulv 835. 
 
 The Court appealed from would, however, have inherent jurisdiction, to 
 make an order granting such stay pending the aiiiieal : see Viittoa v, Vorby, 5 
 I. C. L. J. 07. 
 
 As to ajpieals from Division Courts : see R. S. O. c. 51, s. 148, as amended 
 by 51 Vict. c. 10, s. 2. 
 
 As to apjieals from Provisional Judicial District Courts : see R. S. 0. c. 91, 
 
 s. .%. 
 
 Astoa|)peals from stipend.ary magistrates : see R. S. O. o. !)1, .sec. 31. 
 
 As to aiipeals from a Judge of a County Court, in proceedings under The 
 Liqunr Limisc Act: see R. S. O. c. I!t4, s. Hi). 
 
 As to ajipeals from a Judge of a County Court, in proceedings under T/ir Aft 
 hcsi^ctlihj ir,(/o' I'nvtloifs: see R. S. O. 11!». .s. 15. 
 
' jrTT^w^BwwiPi 
 
 w^'-^^mu^^m^mm 
 
 < S:. ■! 
 
 fit 
 1'^ 
 
 ()88 
 
 APPRAL8. 
 
 ssA MO '**JJO- An appeal shall be set down to be heard at the 
 
 c J ap ^^'""^ sittings of the Court for the hearing of arRumcntB 
 peals whin whicli cominences after the expiration of 80 days from the 
 down.*"^ decision complained of. App. 0. 40. 
 
 SuiKiiiy is not rt-ckoiicd in tln< tliirty dayH' notice, when it is tlic tirnt day: 
 <'(iii/i,'r V. /ti,riiii, H U. L. T. 1!*K, (in/ ijiKirr) ; nor wlicrc it is tlit- last day ; aw 
 Jtulf 47(i. 
 
 C. C. ap- 
 peal how 
 set down. 
 
 H117* An appeal shall bo set down for hearing, by deliver- 
 ing to the Registrar of the Court of Appeal, at least 8 days 
 before the sittings at which the appeal is to be heard, the 
 certified copy of the pleadings, proceedings, evidence and 
 other matters required by section 41 of chapter 43 of the 
 lievised Statutes of Ontario, and ten apptal books for the 
 use of the Judges of the Court of Appeal and the officerB of 
 the Court. App. 0. 41. 
 
 Tiie ruft'ivncf in tliis Itiilf is to tho Koviswl Htatutos of 1877. Tlie Htatutf 
 intended to In- referred is now R. S. t). c. 47, h. T)]. 
 
 Where an ap|ieal is not dnly prosecaited, it may hf dismissed for want of 
 prosecution, on ap)>lication to a .Judge of tlie Court of Ap)K-al in CliiunlHirH, and 
 liis deciHion will not usually be interfered with : J'/aft v. (/rami Trunk R\i. Co., 
 24 C. L. J. 121. 
 
 
 
 III 
 
 
 bookT'llow ^**^» The books shall be printed on paper of good 
 printed, quality, on one side of the paper only, in demy quarto-form, 
 with small pica type, leaded, and every tenth line of each 
 page shall be numbered in the margin, commencing from 
 the top of each page and not from the beginning of tl' 
 book, and a statement of the reasons of appeal sli ' <" 
 a part thereof. App. 0. 42. 
 
 The a])ijeal iKioks are |)rinted by the ap|M^llant withcut any , i.-. settle- 
 
 nient of the case. If the resinrndent is dissatisfied witii the cll^ printed by 
 the apiwllant, he m\ist apply to a Judge of the Court of Apjx'al ii. ' unlxTs t 
 set it aside, unless he merely complains of an omission, in which cum hem 
 under Rule 843, deliver a memorandum of such omitted matter to 
 Registrar. 
 
 Pleadings, 
 how to bo 
 printed. 
 
 Evidence 
 not rele- 
 vant, not 
 *.o be 
 Piiuted. 
 
 H3tt. A full copy of the pleadings shall not be printed in 
 the books, unless it be necessary for the proper considera- 
 tion of the question raised upon the appeal, ex. 
 nr. in questions arising on demurrer. In other cases it 
 shall be sufficient to state the substance of the pleadings, 
 in a brief form, but so as to be intelligible. App. 0. 43. 
 
 S40. It shall not be necessary to print evidence which 
 does not bear upon the question in appeal, but the books 
 must always contain the opinion delivered by the Judge 
 on any motion against the verdict or judgment, and his 
 
:':'If^fl;|l 
 
 Al'I'RALH FROM CHAMMKU8. 
 
 «89 
 
 eard at tlie 
 
 arguments 
 
 y8 from the 
 
 M till' tlixt day : 
 If hint (iuy ; att 
 
 f, by deliver- 
 least 8 daj'B 
 c Inward, the 
 vidence and 
 er 43 of the 
 )Ooks for the 
 lie oflicerB of 
 
 77. Tlu> statute 
 
 sMcil for want of 
 in Cliuiiiliwrs, and 
 // Trunk Rii. Co., 
 
 iper of good 
 quarto-form, 
 line of each 
 lencing from 
 nning of th 
 al sir ^ f' 
 
 y - settle- 
 
 c,i, printed by 
 al ,,, 'iiil)ers* 
 ■hicli cii- lie III 
 d umttiT t(i 
 
 t be printed in 
 )er considera- 
 appeal, ex. 
 )tber cases it 
 lie pleadings, 
 App. 0. 43. 
 
 vidence which 
 nit tbe books 
 by tbe Judge 
 ment, and bis 
 
 charge ill ease of a trial by a jury, and bis note of judgment ^"\" 
 in case of a trial by bimself. App. 0. 44. 
 
 Sit //• .Uit'iiiiinl/, 'X\ \V. |{. ;t")!l, a casi' involviiijf tlif cnnstruction i>f a will, 
 wlifi'r tiii'ii' WiiM no Mliortliiiiiil writiT's ii(itci>f tin- jiulKiiii'iit a|i|i<'al('(l from 
 and no iioti' liy cihiiimi'I uii •'itiiiT siilo, and in uonxcciiit'ncc, tliu Court in 
 iilldHinj: till' iiiipoal Kavo nu coMt-i. 
 
 HxhlbitB. 
 how far to 
 111' iiriiitt'il. 
 
 Koriiial 
 jiroi'ood- 
 iii^s not to 
 III) printeil 
 I ' ejclfiwo. 
 
 H41. l^xiiibita used at tbe trial aliall not be printed in 
 the books, unless tbeir contents are nuiterial to tbu question 
 in appeal, and tben only sucb parts as are material. 
 Api). U. 4-). 
 
 .H42. All formal matters, sucb as co])ie8 of tbe motion 
 papers and rules discbarj];in<». or makinp; rules niai absolute, 
 shall 1)0 omitted, but sucb reference sball be made to tbem 
 i'lcludiiii,' tbe dates tbereof, as may appear necessary for 
 giving a clear and intellip[ible statement of tbe case. 
 App. 0. 46. 
 
 Nllt. Tbe appellant sball, at least (5 days before tbe sit- Appoui 
 tings lit wbicb tbe appeal is to be beard, serve the respon- noueoof 
 dene witli tbe notice of tbe setting down of the appeal, and ;\*;',".',',',*to i.e 
 witli a copy of tbe pointed appeal book, and of the grounds ".or,on(ient 
 and reasons of bis appeal. Incase the respondentia of^xdavH 
 opinion that any necessary matter has been omitted, he ^'luh'^s. 
 way at any time before the hearing leave with the Registrar 
 a memorandum briefly referring to such omitted matter^ 
 App. (>. 48. 
 
 H44. if the foregoing Rules are not complied with, tbe otiieiwiHo 
 i'i)eal shall not be heard, unless the Court or a Judge, Tilar^. "" 
 
 II, on application made upon 2 clear days notice to the 
 uspoudont, otherwise order. App. 0. 50. 
 
 S45. All books, as well in High Court, as County Court N'«.>"-com. 
 appeals, shall contain tbe date of the first proceedirig in the with'itiik's, 
 suit or matto and the dates of the filing of tbe several """''' °'" 
 pleadings sbwii be stated at the commencement of the copy 
 or summary tbereof. In the event of non-compliance with 
 this Rule, the books will not be received by the Registrar, 
 nor will the appeal be heard. App. 0. 52. 
 
 2. Appeals from Chambers. 
 
 S40. Any person affected (x) by any order or decision Aimeai to 
 of the Master in Chambers, a Local Judge or a local Master, ' " ^^ 
 may appeal therefrom to a Judge of the High Court in 
 
 Chambers : 
 
 J. A. 
 
 44 
 
 
 ^^ 
 
690 
 
 APPEALS. 
 
 /^n 
 
 Rule 846. (a) Such appeal may be made notwithstanding that the 
 order or decision was in respect of a proceeding or maite as 
 to which the Local Judge or officer afoi'esaid had jurisdic- 
 tion only by consent ; 
 
 i^) The appeal shall be- by motion, on notice served 
 within 4 days after the decisi. n complained of, or within 
 such further time as may be allowed by a Judge of the High 
 Court or by the Local Judge or officer aforesaid whose 
 decision is complained of; 
 
 (c) The motion shall be made within 9 days after the 
 decision has been made which is appealed against, or 
 within such further time as may be allowed as aforesaid ; 
 
 Tht' original Rule iiaiiKKl eiglit days. The noticf ia to he served within four 
 days, and tiie motion to be made riitimiahle witliin nine days fnun S\v dec!- 
 gion complained of : see Httedman v. Hakiw, 22 1^. J}. I). KJ, -.iiider an Kiij;. K. in 
 different tenns. 
 
 {(1) In such case, the Deputy llegistrar, Deputy Clerk of 
 the Crown or Local Registrar, shall, on a praecipe being 
 filed in this behalf, transmit to the proper officer of the 
 High Court of Justice all documents filed in his office and 
 required for disposing of the appeal ; and the same shall be 
 transmitted by mail, prepaid and registered jxcept where 
 all parties interested in such documents file a consent to 
 any other mode of transmission. The said documents shall 
 be returned in like manner when the appeal has been 
 disposed of ; 
 
 (e) The appeal shall be no stay of proceedings unless so 
 orderea by a Judge of the High Court or by the Judge 
 or officer whose decision is complained of. J. A. Eule 127. 
 
 Compare Eng. K. 1883, R. 410. 
 
 In Lai'llaw v. Miller, 11 P. R. 3.%, it was l.eld that an ap|H;al might Ijemsdc 
 to a Judge without reference to the Division to which an action is assignwi. 
 Tlie contrary was held in Be Chrintic, Vhrintic v. Chrinlir, 12 J". H. 15, and in 
 practice the lattc-r case is followed, tliotigli in case of necessity a .Indgpof any 
 Division would liave jurisdiction to hear the a|)iH,'al ; iiis leave Hliould, how- 
 ever, be first obtained. 
 
 This Rule governs api>eals from the Master in Chambers and tiie County 
 Judges, and Ijocal Masters, acting under /tnlcn 41 and 138: Loirnon v. Canada 
 Farmcm, ttc, !> P R. 188. 
 
 There is no |>ower to vary an order except in tlie mannei- ]iri)vi(ie(i hythft 
 Act, or Rule, e.ii., by way of a]){>eHl or motion to discharge under see. (il) nf the 
 Act or Rule .'i.Sti : set! Atty.-den. v. Lleu-rtlim, .'iS L. T. N.' S. 'Ml : ami Ik Adam 
 Eyton, Limited, 3ti Ch. D., at p. 3<)1, and notes to Rul'' 780. 
 
 {x) Any i)er8on affected by an order -nay appeal, and then-fore an .ipiical 
 lies from an ex parte order bv a person affectei' thereby : IVi'ilc v. Ilurrii, » 
 P. R. 27(5 ; (J. T. Ry. Co. v. Ont. & Que. Ri/. Co., P. R. 420 ; bit an applic* 
 tion to set aside an order made tr parte, and without knowledge of ,')"' j^"' 
 ia not an appeal, and not within this Rule : Jlwiluti v. Field, 1 C. 1/. T- 1^ 
 
i^ that the 
 armaite as 
 ad jurisdic- 
 
 otice served 
 >t', or within 
 ! of tlie High 
 esaid whose 
 
 ys after the 
 against, or 
 5 aforesaid ; 
 
 crvcd within four 
 ,-s from thi' (leci- 
 idt-r iin Kiig. R- ii 
 
 iputy Clerk of 
 
 prfficipe being 
 
 officer of the 
 
 liis otttce and 
 
 same shall be 
 
 except where 
 
 e a consent to 
 
 ocuvnents shall 
 
 peal lias been 
 
 [lings unless bo 
 
 bv the Judge 
 
 j;A.Bule427. 
 
 ' 'action is asxii?n«'„ 
 1.) i> U. 1"), and in 
 
 '7^,,,,. should, ho«- 
 Lrs and the CVuntJ 
 
 "therefore an mf 
 
 A20;Vr..tanaif«; 
 Pledge of th.Jt^ 
 
 APPEALS FROM CHAMBERS. 
 
 691 
 
 The time for a|)i)ealing rutia from the pronouncing of the order, and not from Rule 846. 
 tlie day ui)on which it wan issued : Miller v. StillweU, 21 C L. J. 98, following 
 Davtr V. Rohirtxon, 9 P. R. 78. The contrary was at one time decided in 
 MtNeil V. M(-(;ri<mr, 3 O. L. T. 30!> ; see HeaHci/ v. Newton, ]» Ch. D. 320 ; 
 (libb V. Mnrphii, 2 Ciiy. Ch. 132; see also Lownon v. Canada Farmers, etc., 9 
 P. R. 18;-). 
 
 Where the time expires on a Sunday or holiday, liule 476 applies : see thi-t 
 RuU and Tni/hr v. JonfH, 4.5 L. J. C. P. 110. 
 
 Some differeTice exists also iH^tween the |:ractice of the Cliy. Div. and that 
 of the other Divisions, in regard to bringing on the a]>peal within the time. 
 Tlie Judges in the C^. IJ. D. and C P. 1). have sometimes over-ruled objections 
 that the fti)peal is t(K) late, and treated the motion as a atdistantive motion to 
 reKcind an order impnijjerly made. 
 
 An appeal from a decision of a Master refusing to rescind a former order was 
 held tantamount to an appeal from th«' first order, and dismissed as too late 
 under this Rii/r : Jamimon v. Prince Albert Colonization Co., 11 P. R. 115. 
 
 Orders extending tiie time should not V)e made ex parte : Hamilton v. Tweed, Extending 
 9 P. R. 448. It has In'en held that leave to serve short notice of appeal should time for 
 not be obtaiiu'd froin the Master i\i Chambers ; he has no iK)wer to shorten the appealing. 
 time on a motion not returnable before him.self : I)onoron v. Boulthee, 2 C. L. T. 
 501 ; Kfil (jiKVir, see clauses {!>) and (c) : see 1 C. L. T. G14, G4.5. 
 
 Where an onler was made cm Friday, so that two clear days' notice of appeal 
 could not be given for the next Chamber day (Monday), application was made 
 a park within four days, for leave to bring on the apiK'al on the following 
 Thursday, l>ut leave was given instead for the following A.onday, and no order 
 was taken <uit extending tlie time. It was held not an application for an exten- 
 sion of time, and an objection that the appeal could not be heard as eight days' 
 notice (the tune named under the original Rule), had exjiired, was over-ruled : 
 standard Jiiink v. Wrlh, 10 P. R. 1.59. 
 
 The tiiiu^ was extended where thc^re was the intention to apjieal, but by mis- 
 apprehension of the new practice, the time was allowed to jiass : Daiier v. 
 Micrlaon, 9 V. R. 78 ; also where it was sup{K)S(!d Christinas vacation did not 
 count in computing the time : Sierewri<ilU v. Lejiif, 9 P. R. 200. But mSnow- 
 itmv.Huntiu'iton, 12 P. R. 1, notice of apjwal given Dec. 24 for Jan. 10, the 
 first day after Viication when a ,Tudge sat in Cnaml)ers, was held not good 
 notice. The notice sliould have l)e(!n given for a day within the eight (now 
 nine)day.s, and then an extensiim of the time for bringing on the aiipeal should 
 iiave Ixien apjdied for on an ex parte application as of covirse : see also Walling- 
 krd V. Afutiii'l ,Soc., li Apn. Gas. (J8.5 ; see also Lowson v. Canada Farviera, 
 '(c.flP. R. 1H5; (Jarter v. Stul'hx, (> O. li. 1). lift; (,'ibhons v. Loiidon Finan- 
 ml Asmriation, 4 C. P. D. 2(i3. '1 lie motion by way of ap^)eal must be 
 »rv(>d witliin four days, and be made returnable within the nine days : see 
 M y. N. Sf,iffi,rd.ihire Ry. Co., 5 il B. D. 20.'). Tlie applicati<m to enlarge 
 the time should in general Iwf made within the nine days : StirUmj v. Du 
 ^rrl,,■^(l.\^. D. (>r). 
 
 Appeals in the Chancery l)i vision must be set down as formerly, not later Setting 
 than the preceding Sat\irday : Rand v. Rolph, 2 C. L. T. 151. This is not down. 
 ftiquired in the other Divisions, but the appeal is brought on like an ordinary 
 
 motion. 
 
 If an apiM-al is not pr;,|»('rly set down, a motion to strike it out must be 
 Diade instead of objecting, when the ai)iHal comes on : McCaw v. Ponton, 11 
 1'. R. m. ■< "' I ' 
 
 Appeals from a Judge in Chambers to a Divisional Court are governed by 
 
 '■* 847. 
 
 The Master's discretion is ojien to review on mi appeal under this Rvit: 
 '*"*(!> V, Cnnway, 9 P. R. 52i). 
 
 A right to api)eal may be waived by acting uixm the order appealed from : Waiver. 
 iwrmtiinuil II recking Co. v. LoMi, 12 P. R. 207, or otherwise recognizing it, 
 !*'''y obtaining an extension of time for complying with iu . Piece v. Palmer, 
 L r. R. 308, where a motion by defendant to set aside a judgment for irregu- 
 
692 
 
 Rule 847. 
 
 Fresh evi- 
 dence ou 
 appeals. 
 
 APPEALS. 
 
 larty was refused, but defendant was let in to defend on term.s, and lie was 
 heW to have waived the right to apjical from the refusal to set aside the judg- 
 ment by obtaining an extension of the time for compliance witli tlie termn 
 See also R" .Siiiurt, 12 P. R. at p. (538 ; Jlnijle v. .Sitrkcr, 39 Ch. D. 24!l. 
 
 Under the English Judicature Act an a])peal is in all cases ii ri'hearing, and 
 fresh facts may be gone into : Aikiii, per Lush, J., (!(» L. T. Jour. (17; 1 Charl. 
 Cli. Ca. 128. "Kvery apiwal is now a reliearing, and therefore frcsli affidavit* 
 may Vhj used ou (dl ai)i)eals from a Master to a Judge in Chanilicrs": ui 
 Quain, J., .l«o«,W. N. 187.5, 2.')0 ; 1 Charl. Ch. Ca. 121). "This ruling has Iwii 
 held by other .fudges and confirmed by the Court '" (Coe's Practice in the .Judges 
 Chambers, p. (i. ) It may be doubted whether this is the case in Oiitariu. 
 Fresh evidence may be given by leave oidy under Riili' 585 ; sec Tuiilur v. 
 Sisters, dr., n/Ot/airn, 11 P. K. 4i)(!. hi IteNmlli llarbunr etc., Wi.rks, iiO Sol. 
 •lour. 2(i, it was said tliat each case unust in this respect depend u|i(m its (wii 
 circumstances ; fresh evidence was there allowed, also in /tiililn.ti n v. Ikml- 
 sfiaw, 32 W. K. 05. 
 
 In ne iMiiiuis V. Li,n;/ilcii, 32 W. K. ()75 ; 50 L. T. N. S. 3,50, it was held that 
 the Court will not receive further evidence on a motion to disciiarge an order 
 made in Chambers, where the motion has been fully argued and <lis|i(isedof: 
 see aLso notes to /iidr 585. 
 
 Where it is intended to ajjply for leave to use fresh affidavits or dociinieiitary 
 evidence, notice should )je given to tlie oi)posite party that such leave will !»• 
 a])plied for on the hearing of tlu^ api)eal : lloitie v. tlastii', 1 Ch. 1). .')(I2; see 
 Biiishy v. hirk-iiisuii, 4 Ch. I). 24; and Itichs v. />'/•<»-/«, 13 Ch. 1). (i54. 
 
 Costs of affidavits in answi'r to fresli affidavits were refused where tiie 
 fic.sh affidavits were not allowed to be read : Mitrlicll v. ('mii/i/, \\, N. 
 1881, 83. 
 
 Appeal to f:iZ'> Every appeal to a Divisional Court Iroui any 
 ' °" ■ decision of a Judge at Chambers shall be by motioji, which 
 shall be set down at latest on the day before the sittings, 
 and ahall be made at the first sittings of a Divisional Court 
 which takes place after the decision complained of unless 
 otherwise ordered. See J. A. Rule 414. 
 
 Not the same as tlie VA\g. R. 1875, (). 54, r. (», amended by /liilr 8, -f Mardi, 
 187!t, (188.3, H. 7.")7). 
 
 This i{(//r applies only to appeals under sec. (>!) of the Act to tlie Court fwn 
 a .fudge in Chambers, not from the Master in Chambers, or Local .Jiidgev 
 A|)peals of tlie latter kind are governed by Jin/e 84fi : Lmi-.ii.ii v. ('(IikhI" 
 luiniirrs,,'/,:, <) I'.R. 18.5. 
 
 The original I'lili reciuired that tlie motion should be made within ei^lit <li».v- 
 and difficulties arose in conscqiience, as it was heldin England not to lie .sutficieii! 
 to give notice of motion within that tinu^ ; see /'''.'' v. W'li/lis, 2 C. P. I'- 
 45; see also Jnckxim v. (lurtlncr, 15 (!r. 425; Harris v. Mri/rrs, 1(1 (ii. 
 117 : Mflhvy v. llinrkc, 3 Chy. Ch. C.ti ; 'Litihr v. .hm.s 45 L. .h C. P. lH': 
 llru-mi V. A/nrd<,)m/il, 2 C. tj. T. 348; MrLnrrn v. Miirk\\ W \\ K. t:il; 
 StradnifUH v. Hakim, 22 (.^ B. 1). Ki. 
 
 The present Rule makes entirely different provision. An apjieal frnuia 
 .ludge in C!hambers is to be brought on at tin? next following sittings (if a 
 Divisional Court of the jii'oper Division, unless otherwise ordered. N otiw mii"' 
 lie served two clear days before the first day of the sittings, and the motieii 
 must !»' set down, at latest, the day before the sittings. 
 
 An order made at the Assizes on a motion referred from Chanil)er.s t" 
 change the venue, was held to be in Ciiamhers. The Ju<lge may tn-at t|i" 
 Court-riHmi as his Chanil)ers if he cIkmiscs : Sarnia Ai/ririilli'rul Imjimv ■ 
 Wr., r„. V. I'rrdm; 11 P. R. 224. 
 
wPiP 
 
 APPEALS FROM MASTERS AND REFEREES. 
 
 693 
 
 A solicitor knowing of a pi'eliininary objection to an appeal which he intends Rule 848. 
 to TAW ought, as a matter (jf professional courtesy, to mfonn his opponent, 
 but the omission to do so is not a sufficient >?i'ound for depriving the res|K)ndent 
 of the costs of the aiipeal : Kx /j. Shwii, re. Muiidy, 15 Q. B. D. 338, not 
 folldwing «'■ Speight, 13 Q. B. D. 42; and h.c p. JUi'iise, 14 Q. B. D. 123. 
 
 The Coiu-t on appeal will, in general, not interfere on a question which is by 
 the practice jjurely within the discretion of the Judge : McDontidl, v. McKaii, 
 2Chv. Ch. 243 ; AV/W v. Tr(tr<-n<'i»' Ins. Co., !) Ont. App. 54. 
 
 by /.'"/' H, "f Marcli. 
 
 ■f(,llnwii.^'sittii>K»;; 
 
 3, Appeals from Masteus and Referees. 
 
 HAH, Every report shall become absolute at the expira- 
 tion of fourteen days from the day of filing the same, in- 
 cluding such day, unless notice of appeal is served within 
 that time. See Chy. 0. 252. 
 
 This Rnh is considered to iip|)ly to all re])()rts including those of comniis- 
 sioiicrs to iidnieasiu'c dower untltr K. S. (J. 1S87, e. 5(i, s. 12. 
 
 Tht'iii'adingdf lliis group of Itiiles would seem to indicate that the procedure 
 thurcin laid down is intended to apply to rei)orts made by Official Referees, as 
 well iis to tliose made by Masti^rs. This and the two following Kulvx ai)ply 
 only t(i apjieals from reports, made by Masters, and Referet»s. Wheie they 
 are exercising jurisdiction in Oliambers imder /'n/ei 31, 138, appeals from their 
 decisions arc re;jrulated by I'lih 84(1. 
 
 Reports which require Confirmation. -All reports and certificates, which 
 lire tlu' subject of ai>iieal. are, as a general rule, recptired to be confirmed before 
 tlieycau he acted on : I'^iutt v. Lin'nn/, 2 Sim. & S. 300 ; or any application can 
 \ye made to the Court founded thereon : Hoi/cs \. llmis, 8 V. R. ,54(1 ; SkhuU 
 \:Mcl)<'ii(ihl, (1 (Jr. 5!t4 ; Crnrni v. Iiiiilmm, 58 L. T. N. S. 48(1. There are, 
 however, some reports, and certificates, which may be acted upon without con- 
 tinnati;'n, on their beintr filed. Reports which require confinnation, may be 
 ci)ntin:ied))y special order befcre the exjiiriition of tiie time limited for appeal- 
 iiijr therefn.ui, upon consent of all parties interested. An order confinnmg a 
 re|xirt may be made by the Master in Chambers. 
 
 Reports which do not require to be Confirmed.- All reports, or oertificates, 
 of niei'c cilculation : Li-irin v. Tii/lmt St. Honil To., 10 P. R. 15 ; and of matters 
 of opinioii, which do not require any further order from the Court to give 
 I'ffpct to, or sanction tiiein, except reports on sales, -do not recpiire confirma- 
 tion. Under this iiead are included certificates of compliance, or non-com- 
 jiliaiioc, with any onler of the Master, or of the Court, (but not certificates of 
 insurticieut eompiiance : ('.(j., that accounts filed are insufficient in substance 
 and form ; /■'nslrr w Mori/)'/!, '^ I'. R. 70). Certificates for commissions to take 
 evidence : certificates of scandal, or impertinence, in pleadings, or .affidavits, 
 rcferreil to the Master ; reports appointing trustees, or connnittees : but see 
 Fiidie V. /)titi\ 7 I'. R. 413 ; Fonfi'r v. .Won/rn, mipra ; ) reports on passing the 
 accounts of receivers, or ciminiittees ; rei)orts comj.ating subsequent interest, 
 iirof apiMU'tioiinu'nt of a fund on principles and in proportions, declared by the 
 Court : reports a|)pro\ing of conveyances ; and other certificates and report.s of 
 aiikedescri|)tion ; see Sm. I'r. 2n(l ed.. Vol. II., 357-8. 
 
 No Appeal After Confirmation without Leave.— After a report n^quiring 
 amtirniation lias been confinned. no appeal from it will be entertained 
 without leave first given, on siH'cial ai)i)lication : Thumsoii v. Ltdr, 10 Gr. 281. 
 
 After tile cause or matter has been iieaixl on further directions; the Court 
 iiaa no power to permit an appeal from the reiX)rt upon which the order or 
 judgment on furtlier directions is foundetl : Re lUtmmin v. Hull, 13 P. R. 232. 
 
 EfTect of Confirmation.— After confirmation, the parties are concluded by the 
 report ; yet tiie Court in its discretion may refuse to act \i[K)n it, and may 
 refer the cause back to the Master, or require additional information to hv. 
 furnished; Tiviht,- v. drairii, 10 dr. 488; Baldwin, v. Craw ford, 1 Gr. 202; 
 Ihrmnii V. Mifiheehau, 80 L. T. Jour. 70. 
 
 Keport 
 wlieu ab- 
 solute. 
 
 Ueports re- 
 quiring 
 confir- 
 mation, 
 
 Reports 
 not roquir- 
 iiiK conflr- 
 mation. 
 
 No appeal 
 after con- 
 flnnation 
 without 
 leave. 
 EfTect of 
 confirma- 
 tion. 
 
694 
 
 APPEALS. 
 
 be cor- 
 rected 
 notwith- 
 standing 
 
 Rule 848, Notwithstanding confiniiation, clerical errorH, and accidental slipH, in a 
 Clerical report, may be corrected at any time tijKjn motion in Clianibf^rs, without 
 errors may apj)eal : Morki/v. Mutthnos, 12 (ir. 453 ; liiwj v. (Uniitur, 10 (ir. 3(i4 ; Watmn 
 V. Moore, 1 Cliy. Ch. 200 ; an<l where the error was apparent on tlic face of 
 the report, the application w».s granted ex. pa i-te: White v. Vnitiinf//, ICliy. Ch. 
 11. But although the error be ai)parent, it does not follow that tiio proixr 
 correction is ain)arentj and the motion therefore is usually recjuired to beon 
 notice, or consent : isimpsdii v. Otiawii, 2 Chy. Ch. 12. Mistakes in a report, 
 however, cannot be correcte<l by the Master mem iitntK, on any snliswiuent 
 reference in the action : l'ro"ks v. Street, 1 Chy. Ch. li^; but (Jii u reference 
 back upon an apjieal, when the Court enunciates a principle, wiiieli \n a])|)li- 
 cable toother parties, and other points, than those exjiressly concciiicd in the 
 appeal, it is the duty of the Master so to apply that principle in iill cases to 
 which it is applicable in making his new reiiort, even tiumgii it involve the 
 readjustment of an account not apjx'.aled from : livnixnn v. /ti iii.--('ii, 17 (ir. 
 300 ; and see (Ulliert v. Jurvis, 20 (Jr. 47M. 
 
 Even though an a]ipeal be had, the reiwrt will stand coufirnifd ii.-i to matters 
 stands con- not objected to by the appeal, and which the decision on tiie appeal does not 
 flriiied, as affect: Denisvn v. Deiiiumi , 17 (ir. 308; Rotm v. J'errriii/t, 13 (if. L'dO. Aral 
 not tmDcal- ^'^^*'" ^^^^ reptjrt is referred back, an appeal will not lie from the further reiiort, 
 gd for matters disfKLsed of by the first rejxirt, and not objected to on the first 
 
 Keport 
 
 appeal 
 (ir. 308. 
 
 Jloss V. I'erraiilt, siipni, or affected tliereby : Iteuisiiit v. l)euiiim,\1 
 
 Waiver of When notice of ajipeal is deli vei-ed, without leave, after a report is confinned, 
 objection the delivery of notice; of cross-appeal is a waiver of the objtiction ; LorfM v. 
 too'lat'e^^ '^I'mstrimu, 1 Chy. Ch. 31. 
 
 Report not ^'^'^ report should lujt be dated before the costs havt; been re\iscd, where 
 to be dated revision is necessary: Waddell v. Mct'nl/, 14 (ir. 211. A reiiort made in 
 before costs vacation without the consent of all jiarties is irregular : Aiuloni'ii v. Thrpt, 
 revised, 12 (Jr. 542 ; and lu to parties who have no notice, it is a nullity ; Fuller 
 v. McLean, 8 P. R. .')4il ; luit parties having notice of the proceedings before the 
 
 made in 
 
 ^j^.g'^'Jj^y '* Master in vacation, must rnove agaiiLst them, or they will be confimied 
 
 M'tchell V. MitcheU, 22 (ir. 23. 
 
 Confirmation of Report. — A rejnirt reciuiring confirmation now hccomeii 
 absolute at the e,\|>iration of fourteen days from the filing, unless in the mean- 
 time motion of appeal is .served. An application to extend the time fir appeal- 
 ing from a report, even befon; confirmation, must be made on notice : see 
 llamiUiiii V. Tweed, !( P. R. 448; as also an application for leave to iipiK^al after 
 the time has expired : I'eterlxinni/h v. /7-«^;«, before Proudfoot, .1., Nov. Uth, 
 1883. 
 
 Where it is desired to confirm a report l)efore the expiration of tlie 14 day.s « 
 
 special application in Chambers may be made for that ])urpo.se, but such 
 
 ai)plications are granted only where all parties entitled to jippeal enusent; 
 
 mii^'ri;.^ " i'Mer-son v. (.'ilherf, 12 I'. R. G52, tiiid it is considered undesirabh^ tliat an 
 
 officer siiould make an order confirming iiis own rejKirt : //'. 
 
 Filing Report. --The rei>ort must be filed before an ajipeal will lie : //'(.'/ftf v. 
 Ilai/eji, 8 P. R. 54(). If it a]>iK)int a day for payment of money, it should I'e 
 filed before the day of payment : Milh v. Diam, 'JCiiy. CJh. .W ; and ciinfinne<l: 
 MiiKiituiii v. I'oi-ter, 1 Chy. Ch. 207, if it is a report rer|uiriiig confirmation. 
 No proceedings can properly be taken on a reixirt until filcMl, citlu r by the 
 issue of process, or otherwise : Beames' Ord. 2t(3 ; JeUett v. Aiidirsmi, S r. R. 
 38'( ; even tliuugli tlie r.'i),iit or certificate lie one not retpiiriiig euntiiination : 
 lb ; but such reports can be acted on, immediately on tiling, it is not iiete.s.sar) 
 to wait fourt<^en days : Re Yaijijie, 7 I'. ( '. L. J. 2!(3. 
 
 In oases of references to Local Masters the report is to be filfd in tlie office 
 of the Local Master. In all other eases the rejxirt is to be filed in tli<' Iinifier 
 office at 'I'oninto, i.e., to say in the (Queen's Bencii and Common I'lea.s Division 
 in the office of the Registrar, and in the (Jiiancery Division in tin' office of the 
 (I)lerk of Records and Writs : see RideM. 
 
 Leave to Appeal after Confirmation.- Aftt-r a report is eonfinned, leave to 
 apiMjal from it may be grauti^d on motion in Chamliers. The api)lication muct 
 
 Coutirma 
 tion of re- 
 port. 
 
 Notice. 
 
 Special 
 order con- 
 firming re 
 
 made. 
 
 FiliiiK re- 
 port; limo 
 for. 
 
 No appeal 
 after con- 
 
APPEALS FROM MASTERS AND REFEREES. 
 
 Gfo 
 
 Roles 
 849, 860. 
 
 flrmation 
 
 without 
 
 leave. 
 
 What ne- 
 cessary to 
 be Bhowu 
 on applica- 
 tion. 
 
 Master in 
 OhamberB 
 may (>rant 
 leave. 
 
 Iw miiilt.'oii notice, or consent: Cnzi',n.i v. McDoitgal, 1 Chy. Cli. 20; Caile v. 
 SewhidI, 1 Chy. Ch. 200 ; /'eterhormii/h v. Ireton, beft)re Proudfoot, J., 11th 
 Xovfinlii'i', V<^''^ ; nil parties are entitled to notice even though they be in the 
 same iiiteriwt ax tiie party .seeking to api)eal: Lurkiii v. Armntrcti;/, 1 Chy. Ch. 
 31. WliiTc leave has been granted rx parte, the objection to the order may be 
 uiceii "11 the appeal coining on for argument : I'rtfrhiirniKjh v. Iretim, xiipm. 
 On such iipplication it iw necessary to account for the delay, and to show a 
 priinu fnnf ground of appeal : /Jirkxnn, v. Aven/, 3 Chy. Ch. 222 ; Rowe. v. Wei-f, 
 i;iC. L ■!. :«(!; f'ai.i.ir v. lianihan, )i P. R. 201; IhiilliV/ v. linrzif, 3 Chy. Ch. 
 81; Chu'il V. Mf'/frs, 3 Chy. Ch. 120. It is not absohitely necessary that the 
 jfroiinds (if the propo.sed ajipeal, should lie stated in tlie notic(^ of motion for 
 Wvo to appeal : Unnani's v. l/rriis, 1 (Jhy. Ch. .^(iS ; but reasonable, and 
 lirobiii)Ie, grounds of apjieal, nuist b(! sliown by the affidavits : I/)., and a mere 
 stateliu'iit of tlie pro|)osed grounds of appeal in the notice of motion will not 
 suffiue; Di' lUir/i'ifri' v. Anii^trnnj, \) C. L. .F. 3(i3 ; but costs unneces.sarily 
 incui'i'i'd in making out a case on the merits were disallowed : Xdsh v. fHnrer, 
 li P. H. 207. The Master in Chambers has jurisdiction to entertain the 
 appliciitiiin : Jli'.iscI v. lirncken, 3 Chv. Ch. 4HS ; Sitrrirn'://il v. Lei/fi, 9 P. R. 
 'M 
 
 Liiive t) app ^iiL wai r^'fused with c>>sts, where it ajjpeared tliat the object of 
 tho apptiil, wa-i to fix executors witii interest u|)on a .s\nn wiiich they had 
 JnvtMti'il, anil upon which a loss had l)t'en incurred: Cuati-x v. Mcdbishan, 2 
 Chy. Ch. 21.S ; so also wiicni tlie matter had been hoard on further directions, 
 anil an order pronounced foinided f)n the report : Re Dhu/nmii anil Hall, 13 
 P. R. 23J. 
 
 But 1h:vv(' was granted wht^re time was allowi.'rl to elapse througii the mistake 
 of thi) solicitors in supp )sing tiiat his clients would be entitled to tiie benefit of 
 thu api)i!al of tiieir co-defendants ; Rf (inhuirii', Omc// v. (•ali..urie, 12 P. R. 
 
 '.'52;airls "^ii-ciuori/ht v. Iii'^/f, V. R. 200; but see lUackMnr.k v, Alcfarlane, 
 
 15C. L. .1. 137. 
 
 H40. The notice of appeal shall be a seven clear days' Notice of 
 notice, shall set out the grounds of appeal, and shall be""''^^*^'' 
 returnable within one month from the date of the report, 
 unless otherwise ordered. See Chy. 0. 642. 
 
 As t » the timi- for appt'aling, see notes to Ru'r 82, p. 187. 
 
 Ah t )whi'thi'r appc^als now lie from a ruling of a Master, see MarUe v. R<isk, 
 .ind iiiite thi'reon in tlie notes to Itnlf H2, p. 187. In Mitrleiuiini v. <<ra\j, 12 
 P. R. H31, it was held tliat the time for apiK^aling from ii ruling runs from the 
 dateof t!i' ruling irr^^^iiective of tho date of tlie ciertificate of siicii ruling. 
 
 850. The appeal shall he set down for argument before setting 
 a Judge in Court for the day on which the motion is return- '*°^°' 
 able. .\V/r. 
 
 Fonnorly appeals from reports were required to bo set down for hearing 
 biforea.luilge in Cham'.Kvrs ; and tlie .Judge in Chambers might, if he saw fit, 
 wijouru the ajipeal into Court. Under this .'.')(/<' the apiwal is to be set down 
 til b« heard in Court in tiio first instance. 
 
 .\ Divisioaal (jourt lias no power to hear an ap|)eal from a Ma.ster's report, 
 except by consent ; the appeal is to a single Judge : Clarke v. Jauiieson, 9 
 ''. L. I . !)7. 
 
 Costs of Appeals from Master's Reports.— When some grounds of appeal costs of ap- 
 im allinvel with costs, and otiiers disallowed witii costs, the appellant is peals from 
 entitled to all tiie costs of the ai^ieal that are exclusively applicable to tho reports. 
 Dujeotions allowed, and to a proportionate siiare of those costs common to all ^^'^ , 
 thoobjectiiiiis, according to the number of really distinct grounds of aiijieal on ''•w*™^''- 
 which he succeeds ; ancl tlie .same rule ai)plie3 to the costs of a respondent : 
 Bank of .Montreal v. Jl>/an, 13 (Jr. 204; Trini/i/ (Uleijc v. //(//, 8 Ont. 28(5. 
 
 .1! 
 
696 
 
 Rule 851. 
 
 General 
 rule is, that 
 coHts fol- 
 low the 
 event. 
 
 But MCUH 
 
 when 
 
 appeal suc- 
 cessful 
 only on a 
 trilling 
 point. 
 
 Costs. when 
 appeal dis- 
 niissed or 
 allowed on 
 point, not 
 adjudi- 
 cated u)ion 
 by Master. 
 
 APPEALS. 
 
 Sometimes, instead of giving costs to each party of so inucli of the ajpiifal astn 
 which he succeeds, the general costs of tlie appeal arc awaiflt'd to one of the 
 parties, subject to the deduction of a proportionate part of thegross iniKuint, in 
 res|)ect of the |)artial success of the other )>arty. Thus, when tlicre were fdiir 
 distinct grounds of apjK'al embraced in eleven objections, of which olij('Ctinii> 
 only two were allowed, the Court gave the general costs of tlie ainieal to flu 
 re.spondent, deducting tlierefrom one-fourth in respect of the partial siicces.snf 
 the ap))ellttnt : Ft n/iimin v. Frontctiar, 21 O. ISH. 
 
 In th(! (lis|K)siti()n of the Cvists of appeals from Master's rt^ports, tlic .Jiulgt- 
 will i)robably continue to follow tlic rules of tiie Court of Cliauei rv. flic 
 general rule is, that the costs should follow the event of the aipjieal : /Aiciki/v. 
 RiKif, () V. 11. «!»; Hnnti Hilton v. Viiti /imck/iii, 8 (ir. 421 ; and tlic wonl 
 "event "' is to be understo(Kl distributively : P-'l- <ij Mantiiii/ v. Jii/<(ii. l,'?(ir, 
 204. Hut where tlie appeal fails on the piincipal jKiint involved, and sirwhIs 
 only as to a comparatively insignificant one, the whole costs of the appeal may 
 be given to the respondent : lirimiilii v. < 'luiuiit'jliinii, \',\ ( Jr. ."iStl. .\ii(l wliiiv 
 the Court is of opinion, that the finding of the Master was a fit sul).ject f.ir 
 discussion under the circumstances, although the appeal be dismissed, cdst- 
 may be refused: Striirii v. 'J'rrri/li( irii, 14 (Jr. 172, and costs li.ivc alsn 
 i>een refused of a successful ajipeal, win '•(■ the report was defeetivf. ami tin 
 solicitors a])|ieared to havi^ been negligent ; i'liniMtr v. MrLimi. 10 (!r. ."i'li. 
 
 When an aiipeal was dismissed on a groiuid raised for the first time mi tlif 
 iplieal, and not adjudicated uiion bv the Master, the Court refnsi-d cdsts ; 
 llvmird \. ll'o//f /)</<)(, 14 (ir. 1S8 ; M'rJ)(,iiii/il v. ^^»•/.(///^ ///., 284, and tlic s.iiiio 
 rule aiiplies when the appeal is sueci'ssful on a ground nut taken liefoic tlu' 
 Master: (r'oiliinril v. ,lifl'ni/.i,4(> L. T. N. S. !l<)4. Where •■in appeal l>y uii 
 executrix was allowed without c<ists, on the hearing on further diiectioiis. tlif 
 the Court refused to older costs of the appellant to be paid out of tin- 
 estate : .Vor// v. J)iitili>fi, 13 (Jr. 375. 
 
 Keview of 
 taxation liy 
 Judge. 
 
 4. Appeals from Taxation. 
 
 H»il, Any party who may be dissatisfied with tlie certi- 
 ficate of the taxing master ; as to any item or part of an 
 item which may have been objected to, as provided bv 
 Eules 1*230 and 1'231, may apply to a Judge at Cliambers 
 for an order to review the taxation as to the same item or 
 part of an item, and the Judge may thereupon make such 
 order as to the Judge may seem just ; but the certificiiteof 
 the taxing raacter shall be final and conclusive as to all 
 matters which shall not have been objected to in uianner 
 aforesaid. J. A. Rule, 449. 
 
 \ug. 12th, H. 32 [1SH.S, O. (15. r. 27 (411) except a> 
 
 if Fell., 1S7I>. lie 
 a|)]ieal now lit< 
 
 Matters in 
 discretion 
 of TO. 
 
 Same as the Kng. K. 187"), 
 to the time for ajipealing. 
 
 The Master in Chambers had, under this Riilr and Hule> 
 jurisdiction to review taxations : see note to Mii/f 30 ; but an 
 to him, or the Master in Ordinary, under Rnh H')4, from the Ta.xing Officer in 
 Toronto, pending a taxation. 
 
 This Ride aiipliesboth to ai>i>eals from the Taxing Officer in Toronto ami tlu' 
 Local Taxing Officers: Ritlr VMi. Before the Act on which Jiidt l!Hi i> 
 founded, there was no direct appeal from the Local Officers. The old practici' 
 I'f revision in their cases was continued, except .is to the length of notice of 
 revision : see Cwjw v. Steepi-r, 2 C. I^. T. 88 ; Exchange Hunk v. Ncinll, !• 1' **. 
 528. 
 
 Where questions of taxation are in the Master's discretion, his discretion will 
 not lie iuterfen-tl with, unless it be manifest that he has failed to exercise it in 
 
APPEALS FROM TAXATION, 
 
 697 
 
 A reasonable manner : The Neera, 5 P. I). 118 : Harfircnvcx v. Scott, 4 C. P. I). Rules 
 21 ; and will not in general interfere with the decision of the Tixin),' Otticer as 802, 863. 
 to itcHis ill regan' to which he has exercised ii discretion left to liiui bv the 
 KiilrK- Smith v. Il7//,i, 31 W. K. 30 ; 53 L. T. X. S. :W> : s(* also Jio^wi/I v. 
 (V4.X, 3() Oh. I)., 444; Itt IlilliKird <i,i<( Itomd Inn. Co., I'J P. U. 2X5; r;„//v. 
 (W/w.-, 12P. K. 413. 
 
 The Taxing Officer's decision, as to the anicjiint of counsel's fees, will not lie 
 interefered with, unless a gross mistake is made : Jirown v. Son//, W Ch. 1). 
 M7 ; see also For v. Toronto <(• Ni/ii.'<'<ini/ /In., 7 J'. R. 157; JMIk v. t'/airir, 
 L K. 7 Cliy. 513 ; /{( JMtinnc .. <'-., 4 C. L. T. 251 : I'itrir v. t/mt/ili, el,:. 
 10 1'. Ii. (ilXt. 'I'he Court will slowly and reluctantly enter into all (|uestions of 
 (Hiantuiii nii'rely : Smitti, v. liii/lir, L. \{. V.) Va{. 47H : .Morgan and Wurt/.lmrg 
 on Costs, 4S0. 
 
 The decision of the Taxing Officer, as to items jilaced by the tariff in his 
 (liscrctioii, such as iiiitructioiis for motions, letters, attendances, will not be 
 levieweil : Mct/ininon v. ('tfn/,r, ',) V. R.555; sec also Turntinl/ v. Jinisoii, 3 
 C. P. 1). 2(14. 
 
 'I'lv madi 
 ()(H). 
 
 to a .ludge (if 
 
 All a|)|peal from a taxation of costs in Apix'al is prop 
 tlic High Court, -(//(fcn'.' Pctricv. <i'nf//iti, rtr., 10 I'. 1{. 
 
 .\ nii'nuii'audum at the foot of the liill shewing the result uiion wliicli execu- Certilicate. 
 tioii had issued, was held to be a sufficient (tertiticate, where tiled in the proper 
 iiffice: MeCnthnn v. Mc^'n'/nm, 11 P. I{. 17'.>; but an informal eertifieate 
 written at the end of the bill, shewing that it was fixed at so much, initialed by 
 the Taxing Officer, marked tiled in liisotfice, is insufficient : '/'(// v. ^'til/inn, 12 
 P. R. 413. It must be tiled in the proper office for tiling a rt'port : see Loniitrii 
 V. Diniim/iii, 10 P. K. 44. 
 
 Two clear days" notice of a|>pea1 is sufficient: MrCd/tdni v. Mi'i'it/lntn, 
 Kiiprd. 
 
 .Vii appeal will not hv allowed as to any items not included in the olijections 
 Immgiit ill uiKh'r /.'('/''.s 1230 and 1231 • Plntt v. (;. T. 7?//. ''"., 12 1". H. 273; 
 iiiifl wliere 11(1 olijections have lieen brought in under Biitia 1230 and 1231. 
 tile appeal will be dismissed : Snoin/i n v. Hnntiniiton, 12 P. H. 1 ; t'liinrroii 
 \:(:(iiiirr<,ii,\)C. L.T. lilli; see also //r.s-^r v. //o•^■;•,'34 Ch. I). (i07 ; !!■■ Notion, 
 :i7 L. T. X. S. 048. 
 
 A|i;ieals from a Taxing ()ffic<'r. in respect to a solicitor and itlient taxation, Sol. a 
 Were formerly lirought liefore the Court in the saine way as otlur ajipeals from clieiil 
 a Master : si'c Kicliunnc ISinik v. Nun I/, !t P. H. 52.S, and linif .S48. [t would ation 
 seem now, however, that all appeals in resiH«t to taxations are to be brought 
 mider this lluif. 
 
 . 27 (41)]exei'iita.« 
 
 N53. No appeal shall lie unless a notice thereof is p;iven wiicuai- 
 within four days from the clay of the -late of the certificate, •"^"' '""**' 
 and is brought on for argument within nine days from the ^ 
 
 said day. Xcic. 
 
 This pi.ictice is similar to that on appeals from the Master in Chambers : 
 see note to Rn/c K4(). 
 
 This Uiiti' is in affirmance of what was held to be the jtractice in Storl: \. 
 Fisher, 11 P. H. 235 ; Irrtoni/ v. Pitrlicr, /')., 40.3. The time may lie enlarged 
 by the Masti'r in CliamtHTs, or a. fudge : Qiuiii v. Qnii//, U P. R. 258. 
 
 Tlie time runs from the date of the certificate of taxation, Jind not from the 
 ilateof ciwh ruling in the course of the taxation : Mr O'Donohnr, 12 P. R. (112. 
 
 ^J-/' 
 
 S53. Such application shall he heard and determined Kvideuce 
 by the Judge upon the evidence which shall have heen 
 brought in before the taxing master, and no further evi- 
 
698 
 
 Rttles 
 894, 866. 
 
 Appeal to 
 Tl.O. 
 
 APPEALS. 
 
 dence shall be received upon the hearing thereof unless the 
 Judge otherwise directs. J. A. Rule 450. 
 
 Identical with tlio Kii(,'. R. Au^'. 1875, r. .'W [1««3, (). (i*., r. 27 (42)]. .V 
 Rnglish Chiwiccry Order 40, H. 'M\, Morgiin Cliy. t)rdern, 4tli cd., rm. 
 
 It hiisheoii licld to lie ii c(invt»iiiwit i)ractice on an )V]>]>eal from a LociilOflictr 
 118 to mnntToiiH items, or on tlie {j^round of general exorbitancy, to refer the 
 whole liill to the Taxing? Officer in Toronto : Qiuiy v. Quu/i, 11 1*. 1{. 258; ami 
 in sucii ease no costs of the revision and a|)i)eal are UHually allowed, \iiileH8 nub- 
 stantiallv entire snccesH is with one party or the other: F/nIt v. (•'. T. Ku.Co., 
 12 P. H.' 273. 
 
 Hlh4, There may be an appeal by appointment without 
 other notice from the taxing masters in Toronto to the 
 Master in Chambers or to the Master in Ordinary pciuliiig 
 the taxation in all cases. J. A. Rule 544 (1). 
 
 An a)>|)eal from the Master in (!haml)er» or Master in Ordinary lies te.i 
 .Judge as in otlier oases : Ri- MoiUeitb, Merchants limih v. Mniiliith, 11 P. ji. 
 3(51. 
 
 The practice in app;'als tnider this Rule is intended to he simple ,ii»l iiicx- 
 rx'usive. The Master in Chanihi'rs hears the parties i)i tile (iresencc of tin 
 Taxing Officer or otherwise ascertains tlie reasons of the Officer for his decision. 
 and aiinonnces to liini verlially or by informal inemorandnni liis decisieii mi 
 the points .sulnnitted. This |>roc(^dnre was approved of in A'*' .V'/m»h, 1.'? 1'. K. 
 30. There is no need of a formal order and its attendant expenses : ///. 
 
 It is not (hisirahli^ that a taxation should come more tiian once 
 
 I ly way ol 
 
 appeal before a .hidge, and therefore wiiere there had been an appeal to the 
 Mast(!r in Ordinary jjendiiig a taxation and an ap|>eal from Ins (leei.xidii \va.s 
 
 taken, the latter was directed to stand over 
 ta.xation : [li. 
 
 until the conclusion uf the 
 
 5. Appk.vls to thk Ju dici.\l CoMMiTTfK OF TiiK Pkivy 
 
 Council. 
 
 The Privy CouiumI will not advise Her Majesty to admit an appeal fi'diii the 
 Sujireme Court, save where the case is of gravity involving matteis of ijiililic 
 inten^st or some important ((uestion of law, or affecting property of cnii.sideralile 
 aHKJunt, or where the case is otlierwise of stjiiie ]mblic imjinrtance, or of a very 
 substantial character: Priiirc v. (•'wjiu.n, S App. ('as. 103; Jnhiislun v. SI. 
 Anih-t'ws, 3 App. Oas. lo'.l ; it is not enough that the cpiestions involved arc of 
 great importanc^e to the parties or calculated to attract pul)lic iitteiition : 
 ItuiiidnUn v. lAimitr!/, 'u L. T. N. S. 317. Sjiecial leave to apiieal was ivfiuswl 
 in a case involving only an issue of fact: Canada t'rutni/ Rt/.Cn. v. Munu'i. 
 8 App. ('as. .')7-l. 
 
 Whei-e the Sujireme (lourt of Canada has acted under a special reference 
 to it, under an agreement lietweeii the parties and not in its ordinary 
 jurisdiction as a Court of Apjieal no appeal lies to the i\ C. : .\ll'/.-<ii'ii. I'fNtM 
 >'r„!r, V. 'Iirj.rj, Tm L. T. N. S. 270 ; 'm L. J. T. C. 40. 
 
 Security to HHHi* The Security to be given in cases of appeal to Her 
 
 appeatsVo" Majesty in Privy Council, shall be personal, and by bond to 
 
 (•ouncii. the respondent or respondents, such bond to be executed 
 
 by the appellant or appellants, or one or more of them, and 
 
 by two sufficient sureties, (except in special cases), as 
 
 mentioned in Rule 808, in the penal sum of $2,000, the con- 
 
t unless the 
 
 . 27 (4'.>)1. See 
 
 \.. rm. 
 
 ii I jociil officer 
 cy, to refer the 
 1'. K. -jna ; ami 
 ?«■(!, \llllesn Rub- 
 
 ,'. a. T. Ha. t'(i., 
 
 ent without 
 onto to the 
 ary p( 
 
 'luliiif; 
 
 •(Unarv lies Ui w 
 
 nlllrll'h. 11 P.K. 
 
 liiniile iiiid ine\ 
 ()r("<eiu;e (if tlii' 
 ;• for liisdeeisiuii, 
 I his (leeisioii on 
 .V,/,s„». 13 P. R. 
 •uses : III. 
 
 1 oiu'c liy way of 
 an aippeal to the 
 liis (leeisiim was 
 olK'hisioii of the 
 
 TIIK 
 
 Phivv 
 
 ■.i\)\n-.d from the 
 natters of l""*''''^^ 
 ;y of considerable 
 iiiiee, or of a very 
 
 ./..IlK.sInn V. SI. 
 
 4 involved are of 
 
 i.nhlic attention; 
 
 ipeal was refused 
 
 /. ('.I. V. Miirrivi. 
 
 special reference 
 ill its ordinary 
 
 Allil.-iifii.''/''^'''^'" 
 
 appeal to Her 
 ,nti by bond to 
 io be executed 
 3 of them, and 
 al cases), as 
 !,000, the con- 
 
 BL'LES 01 THE JUDICIAL COMMITTEE OB' PHIVY COUNCIL. 
 
 699 
 
 (Ution of which bond shall be to the effect that the appellant ^"J^'l^^ 
 or appellants shall and will effectually prosecute his and 
 their appeal, and pay such costs and damages as shall be 
 awarded in case the judgment appealed from shall be 
 alfirmed, or in part affirmed ; and any application to the 
 Court of Appeal to stay proceedings shall be made in like 
 manner, and be upon the like terms as to security, as 
 i3 provided in like cases i.pon appeals from the High Court 
 to the Court of Appeal. App. 0. of 8th Sept., 1871, 0. 35. 
 
 N»1<J. The bond referred to in the foregoing Rule shall ^^'^fj,'^',,*^/' 
 according to the Form No. 210 in the Appendix. App. 0. 
 
 be according 
 of 8th Sept., 
 
 1871, O. 36. 
 
 A bond accoiflin^ to the terms of this Form having tho words "or pay " 
 ia the condition, instead of "and pay,"' tlie words used in /'nlr Hi^rt, is ivj^ular; 
 and "otfectually |irosecnte " nieans "siit^ci'ssfuUy jiroscente. " 15nt to secure 
 the amount fonnd diKs to the respondents a l)oiid with I'lc (condition in tiie 
 form (if Form 211 in thi' Api>., is not sutfieient. A l)on(i for that |)nriHise 
 must b«t conditioned in the same way as a Ixind under Jliii>' Sdt, (1) : liiti r- 
 iiatuimil llridiji' Co. v. ('(unulu, Smithrni Ri/. (^n., '.1 J*. 1{. 'JoO. 
 
 >i57. In every case of appeal to Her Majesty in Council, Ainduvit uf 
 the obligors, parties to any bond as sureties, shall justify {'i',^^,'"!;''' 
 their sufficiency by affida-^-it in the manner and to the same ',i,!,','|';*'',',,,_ 
 effect as is required upon appeals from the High Court toiin"i-s 
 the Court of Appeal. App. 0. of 8th Sept., 1871, 0. 37. 
 
 The Ordiu's of tlio I'rivy Council wiiich 
 Ontario and may be useful, are here jtrinted : 
 
 .■ir<! applicalile in appeals from 
 
 lilLE ISSUED J?Y THE Jui>U'IAL CoMMITTEK 
 
 Dirtelinii Jiiil;iis itf the Conrt.f in thr ('oU)nii.t and Fordfin nr/tloiuntK iif the U»lo of 1'. 
 Crovn tn ilin their ;v((.«/)»/.s' in vriliniifortliijndijmoit iii>/ii'(tli(l frnin, iind to C. of llitli 
 trun.imit till .•mine trith till Bd-ord. Feb., Itil5. 
 
 At thk CoLNoiL Chamiiku, Whitkhali-, the 12tll Feb. 1845. 
 Ii'llhi- Judicial Cinnmittee nft/ie I'nvn Vomicil : 
 
 Whekkas, I)v an Act passed in tlu! eighth year of Her Majesty's reign, 
 intituled, etc, ' [Here follows a recital of 7 & 8 Victoria, c. G!», s. 11.)' 
 
 Niiw, therefore, the Tiords of the .said .Tudicial Ccmimittee (.f the Privy 
 Council are pleased to order, as it is htireby ordered, that when any ajipeal 
 -lalllie [iro.secuted from any judtrment of any Court in tlie Colonies or foreign 
 sjttlenients of the Crown, the reasons given by the .ludges of such Court, or 
 by any of such .ludges, for or against sucii jtidgment, shall be, by the .fudge or 
 ■ludges of such Court, comnuinicated in writing to tln^ Registrar of such Court, 
 or iither ( )tticer, whose duty it is to |)repare and certify the tran.script record of 
 the pniceedings in the cause, and that tlie same be by him transmitted in 
 iiriginal to the Clerk of Her Jlajesty's Privy Council, at the same time when 
 the d(K;uuients and i)r()ceedings proper to be laid before Her Majesty in 
 Council upon the hearing of the ai)i>eal are transmitted. 
 
If 
 
 700 
 
 Al'PKALH. 
 
 Rule 887. WhcrtMtf tlni .Fiidiiff'M of all h\icIi f 'mirts in the Colonics or fori'ijfii scttlcmmtK 
 of tile (^rowii III'*' to take notiiM', unci p)vt'rn tlifni-u'lvfn iiciCMii'ilinj^ly. 
 
 C. C. (JitKVII.l.K. 
 
 This R'l'i' is '<till in fctrc ', iin 1 is t > ))» olmTvc 1 : sc;- 12 Ap;). 0;is. V.\X 
 
 Uuloof P. 
 ('. of l;li.i 
 ■I lino, lH");t, 
 
 Appellant, 
 when sne- 
 (•(sssfiil 
 may re- 
 cover costs 
 of appeal. 
 
 Tran- 
 scripts to 
 1)6 sent to 
 the UeKis- 
 trar of the 
 I'rivy 
 Council. 
 
 'I'ran- 
 scripts 
 may bo 
 l)rinte(l 
 abroad. 
 
 Ordrrs ok tiik Phivy Counch, 
 
 Pd'i^i'il lit till' t'oiirt lit Hwlxiivjlmm I'lihirr, tin- IStli nf ■linii\ iHthl 
 
 I'n'Hi'iit : 
 
 Thk <^t KKNH Most Kxcki.i.knt .VFa.ikstv. 
 His Uoyal Higiniess I'rinctc .Mhcrt. 
 
 Lord President, 
 Lord Steward, 
 Dnke of Newcastle, 
 JJnke of Wellinyrton, 
 Lord (^liaii;lierlain. 
 
 Whereas, there wu 
 llonourahle the L<ir(l. 
 
 Karl of Alierdeen, 
 Karl of f^larendon. 
 Viscount Pahnerston. 
 .NIr. Herbert. 
 Sir .lames (Srah.ini, lU. 
 
 this day read at the Hoard a re|>ort from tlif 
 )f till' . Indicia! Committee of the l'ri\ v ( ouncil. 
 
 fiit'l.t 
 lialiil 
 
 the HOtli May last oast, humhlv setting forth that the Tiords of the .ludiiial 
 Committee liave taken into consideration the jiractice of the Conmiittrv witli 
 a \ iew tof,'reater economy, despatc^li, and etticienc.N' in the ajipellate jmisdiction 
 of Her Majesty in (^inncil, and th;it their Ijordships have aj,'reed Imnilily tu 
 I'cport to Her AIaje.'<ty that it is expedient that certain chan>,'es siiould Ixiiiadi- 
 in the existin<r iirac'.i'ie in appeals, an 1 recommending' that certain Kulis ami 
 Heprnlations therein .set fortli shonld hencefortli he <diserved, obeyed, and 
 carried into execution, provided Her Majesty is pli'ased to approve tiiesaiiii': 
 
 Ifer Majesty, having' taken the said report into consideration, was pleasiil. 
 by and with the advice of Her I'rivy Council, to approve tliereof, and (if the 
 Uides and Regulations .set forth therein, in the words following, riililictt :- 
 
 I. That, any former usage or practice of Her Majesty's Privy Council lint- 
 witlistanding, an ajipellant who shall succeed in obtaininf^' a reversal, or 
 material alteration, of any judgment, decree or order, appeale<l from, shall 1»- 
 entitled to recover the costs of the appeal from the respondent, exccjit in 
 cases in which the I/)rds of the .ludicial Connnittee may think otherwise to 
 direct. 
 
 II. That the Registrar or other |)roi)er officer having the custody ef the 
 records in any Coiu't.or spi'cial jurisdiction from which an appeal isiii-oii;,'lit tu 
 Her Majesty in (Council, be directed to send Ity post with all possible (les|iatcli. 
 one certified copy of the transcript record in eatdi cause to the Hegistrar of Her 
 
 that all such transcripts he reffis- 
 lite of their arrival, the names nf 
 the ])arties, and the date of the .sentence ajipealed from : and that Mich 
 transcript be accompanierl liy a correct and complete index of ;dl the paiurs 
 documents and exhiiiits in tiie cause; and that the Hegistrar of the roiirt 
 appealed from, or other iiroper officer of such Court, be directed to omit froni 
 such transcript all merely formal di.cument.s, provifled such omission Ih^ stated 
 and certified in the said index of papers ; and that special care be taken not t" 
 allow any document to bi^set forth more than once in such transcript; luid that 
 no other c;^rtified coi»ies of the record be transmitted to agents in Hiigliuirt hy 
 or on behalf of the parties in the suit ; and tluit the fees and expenses iiiciirrKl 
 and paid for the preparation of suidi transcrint lie stated and certified ii|Km it 
 by the Registrar, or other officer, preparing tlie same. 
 
 III. That where a record of iiroceedings or evidence in the cause ajipealwl 
 has been jirinted or i»artly printed abroad, the Registrar (a- other jiroper iithetr 
 of the Court from which the ap|)eal is brought shall l)e bound to send Imnit' tin' 
 same in a printed form, either wholly or so far as the same may have Ixfii 
 printed, and that he do certify the same to be correct, on two copies, by signmf.' 
 nis name on every printed sheet, and by affixing the seal, if any, of the Ceiirt 
 a|)i)ealed from to these copies, with the sanction of the Court. 
 
 one certihed copyot the transcri])t record in e 
 Majesty's Privy C!ouncil, Whitehall ; and tl 
 tered in the Privy Council office, with the da 
 

 RULES OF THE ir,IVY COUNCIL. 
 
 roi 
 
 Written 
 triiiiscriiitH 
 to lie 
 priiitt'il by 
 Hur Ma- 
 JL'Kty's 
 liriiiter. 
 
 AikI tlwit in iill vhm's in uiiich tlic particH in a|>p^-iilM mIuiII think fit to have Rule 807. 
 the pfiHM'c'dinK'* printfl iiln'oad, tiicy .shall tic at lilwrty ti» do no, lu'ovidcd thcx 
 can."!' Ill ty cnnics of clic sanic to lir jirintfil in folio, and transmittt'd, at tlicii- 
 I'xpt'iiKC, to till' ll(%'i.iti'ai' of the I'nvy Coinuiil, two of which printed copicn 
 ,<liall he ccrtilii'd a.s aliovc liy the officers of the Court appealed from; aiul in 
 rliis case no fiirtiier e.xpcnse for copyinj,'' or printing; the record will he incurred 
 oiallnweil in Kn^dand. 
 
 IV. That on the arri\al of a written tranHcript of appeal at th«' Privy 
 ('(iiiniii ottice, Whitehall, thi' iijipellant or the agent of the ap]iellant 
 |ii'(wc\itinv; the siinie shall he at lilierty to (Mill on the l{et,'istrar of the 
 I'rivv Ciiuncil to cau.se it, or such part thereof as may lie necessary for 
 tiic iitaiinj; of the case, and likewise all such ]iarts thereof as the respondent or 
 his !if,'eiit may recpiire to lie lirinted liy Her Majesty's Printer, or liy any other 
 |ii'iiiter cm the same terms, the appellant or his aj,'ent enpiKing' to pay the cost 
 (if preparinff a copy for the printer at a rate not exceeding' oneshillinpr per 
 liriii sheet, and likewise the cost of preparing such record or apjiendi-x, and 
 that line iumdrecl copies of the .same lie struck off. whereof thirty copies are to 
 lie delivered to tile agents on eac:h sidi', and forty kept for the use of the 
 .liiilicial Committee ;' and that no other fees for solicitors' copies of the tran- 
 script, or for drawing the joint ajipendix, be henceforth allowed, the solicitors 
 111! li itli sides being allowed to have access to the original papers at the Comu'il 
 iittiie, ami to extract or cause t<i be extracted and copied such parts thereof as 
 are necessary for the prepai'ation of the jietition of apiieal, at the stationer's 
 iliar^'e not exceeding one shilling per sheet. 
 
 V. That a certain time he fixed within which it shall be the duty of the 
 appellant oi' his agent to make such ajiplication for the printing of the traus- 
 Hcript, and that such time he within the s)iace of six calendar months from the 
 arrival of tlie transcript and registration thereof in all matters brought by 
 appeal from Her .Majesty's Colonies and jilantations east <if the Cape of (!o(id 
 Ihipe, or fr<im tiie territories of the Kast India Comjiany, and within the sjiace 
 iif three months in all matters brought by ajipeal from any other ]iartof Her 
 Majesty's Doniinions abroad ; and tliat in default of the ap|iel]ant or his agei.t 
 taking eH'ectual steps for the |irosec\ition of the apiieal within such tiuu' or 
 times res]iectively, the apjieal .shall stand dismissed without ftu'ther order, and 
 tliat a report of the sanu^ lie made to the Judicial C/'ommittee by the Registrar 
 of tlie I'rivy Co\uicil at their Lordsliijis' next sitting. 
 
 VI. That wiierever it shall be foiuid that the decision of a matter on ajipeal 
 
 'I'ran- 
 scriptH t(i 
 lie jirinted 
 within a 
 certain 
 time. 
 
 is likely to turn exchisively on aquesti<in of law, the agents of the jiartics, with 
 tile sanction of the Registrar of the Privy Council, may submit such (piestie.n 
 (if law to the Lords of the Judicial Committee in the form of a special case, a'ul 
 print .Mich parts only of tlm tran.script as may be necessary for the discussi(.n 
 iif the .same : provided that nothing herein contained, shall in any way bar or 
 prevent tile Lords of the Judicial Committee from ordering the full discussion 
 (if tile wiiole ca.se, if they shall so think fit ; and that in order to promote sueli 
 ari'aiijreuient.s and simplification of the matter in dis|>ute, the Kegi.strar of the 
 Privy Council may call the agents of the parties before him, and having lu^ard 
 tluiiii and examined the transcript, may rejiort to the I'omniittee as to the 
 niitiire of the ]iroceedings. 
 
 And Her Majesty is further jileased to order, and it is hereby ordered, that 
 the foregoing Kult\s and Regulations be ininctual'/ observed, obeyed, and 
 carried into execution, in all appeals or petitions, and comjilaiiits in the nature 
 (if appeals, brought to Her Majesty, or to Her lieirs or successors, in Council 
 fnim Her Majesty's Colonies and plantations aliroad, and from the Channel 
 l.slamls, or the J.sle of Man, and from the territories of the Kast India Company, 
 whether the same he from Courts of Jiistice, oi from special jurisdictions, 
 ether than appeals from Her Majesty's Courts of Vice-Admiralty, to which 
 the said Rules are not to bo applied. 
 
 Whereof the Judges and Officerrs of Her Majesty's Courts of Justice abroad, 
 and the ,1 udges and ( )fficers of the Superior Courtsof the East India Company, 
 and all other persons whom it may concern, are to take notice and govern 
 tlieiuselves accordingly. 
 
 W. L. B.ATHIHST. 
 
 Appeals 
 may he 
 licard in 
 tli<! form of 
 a i-pecial 
 case. 
 
I 
 
 f 
 
 702 
 
 API'KALH. 
 
 Rule 867. 
 
 Kulo of l>. 
 C.;il May, 
 
 •Iiidlciiil 
 Coininlttet! 
 may rulnx 
 
 KlllUH. 
 
 Hiileof r. 
 (J. ;il Mar, 
 IS70. 
 
 At THK COJIIIT AT BdOKINOHAM PaLACE, THE 31hT DaY OF 
 
 Makcii, 1855. 
 
 I'ri'Hi-nt . 
 
 Thk I^ukkn's Most Kxi'Km.knt Ma.ikhtv in fViiNcii.. 
 
 Whurcii-* (luul)t!< liavt! arisisn with n-fcrennf ti> tin- power <if t 
 Ci)iiiiiiittcf of tliK I'rivy (Council to hum|hmi(I or rel'v.x, uiKler ccr 
 circuiiiMtiviict'H, til)' ri-^riilatioiis in ap|H>al caiiNcs I'MtabliNlicd l>y !!• 
 Ordciin ( 'ounnil of tlu'llitii .luiif, 1S5H; Her Majusty, by and willi t 
 Her I'rivy Clmun-il, i-* |)lt'a><nd to ordt-r, and it in luiretiy ordcrt'il, tli 
 casxH in wiiic'li a ix'tition of ajipcal to IIiT MajcHty Hhall liavc Ix'cn 
 referrt'd liy Jlcr .najenty to tlii' Judicial Committer, the Kaid rt'jfiil 
 Ix" Mul)j('i!t to any order or direction which, in the ()i»inion <jf thi^ 1 
 Judicial (lonnnittee, the justice of any particular cawi' may Heem to 
 
 C. C. « 
 
 ii; Jiulidial 
 tain B|K>ciul 
 ■r .Majcrtty'h 
 lie aijvieoof 
 at in a|i[KDil 
 liKlt,'e(I, and 
 
 iltillllH shllli 
 
 iordx (if the 
 re(iuirc. 
 
 illKVlM.lt 
 
 liUMCS TO HK OUSKllVKD, 
 
 /)'// /iniit'ir.s, M(//(/Aic.v, iii/ciil.i, tiinl ullur /tirsnii.s ti<(iiiitl('ii In piiutisi- hefiire. Ilet 
 Miiji sill's Miisl lliiDKiiiiililr I'ririf Ciiiiiin'/, islnlilishi'il hi/ OnltriiiCuunrilof 
 ll„- ,tlsl ,l,iif lif Mdirh, IS7(I. 
 
 I. Kvery proctor, solicitor, or a^eiit admitted to practice In-fore Her Majcrtty'i 
 ISIont lIonoural)le I'rivy Council,' or any of the committees thereof, sliall 
 Mill], ;';-'he a declaration to l)e enrolled in the I'rivy C/'ouncil office, epjfaj^iiKf to 
 olwervt! and ohey the rules, regtdations, orders, and practice of tlu^ I'rivy 
 ('ouncil : and also to pay and rlischarge, from time to time, when the same 
 shall he demanded, all fees or char^'es due and payal)lt' ujxm any matter |K'II(1- 
 inff In'fore ller Majesty in Oouncil ; and no person shall Ix- admitted t<) 
 practice, Ix^fore the I'rivy ComuMl, without having? suliscrihed such declaratiun 
 III the following' tjenns : — 
 
 KoKM OK DkcKA RATION. 
 
 Wk, the undersi(,'ned, do lierel)y declare, that we desire and intend U> 
 practise as solicitors or agents in appeals and other matters pending; beferp 
 ller Majesty in Council ; and we severally and resiwctively do hereby engage 
 to observe, submit to, perform, and abide by all and every the orders, ru!»^s, 
 regulations, and practici- of }ler Majesty's Most Honourable I'rivy C(puncil 
 and the connuittees thereof now in force, or hereafter from time to time tolx- 
 made ; and also to pay and discharg*', from time to time, when the same shall 
 be demanded, all fees, charges, and sums of money due and payable in resjiect 
 of any ai)i)eal, petition, or other matter in and upo'.i which we shall severally 
 and ••(•siM!ctively apjH'ar as sucli solicitors or agents. 
 
 H. Kvery proctor, solicitor, or attorney practising in London, and duly 
 admitted in any of the Courts of Westminster, shall be allowed to sul)scriti« 
 the foregoing declaration, and to practice in the Privy Council, upon the pro- 
 duction of his certificate for the current year ; and no fees shall be payable by 
 him on the enrolment of his signature to the foregoing declaration. 
 
 III. I'ersons not l)eing certificated London solicitors, but having been duly 
 admitted to practise as solicitors by the High Courts of Judicature \\\ India <ir 
 in the colonies respectively, may »J>pl.y, by|)etition, totlie Lordsof the .Fudicial 
 Committee of the I'rivy Council for leave to be admitted to practiw in 
 the I'rivy Council ; and such iwrsons, if admitted to practise by an order 
 of the'r Lordsliips, shall pay annually, (m the ISth of Novemlmr, a fee .if five 
 guineas to the fee fund of tlie Council office. 
 
 This Rule is strictly construed, and [)erHona who are not solicitors in the 
 Colonial Courts will not be admitted to practice before the Privy Council : 
 leave to pnictice 'vas refused to a pleader of the High Court of Calcutta : /« 
 re Tcviddk; 14 A pp. Cos. 328. 
 
 IV. Any i)rtK;tor, solicitor, agent, or other person practising before the Priyy 
 Council, who shall wilfully act in violation of the rules and practice of the 
 Privy Council, or of any Mules prescribed by the authority of Her Majesty, or 
 
8T Day of 
 
 if till' ■l\i(iiimkl 
 crrtiiiii BiK-ciiil 
 Her NIajc4y'ii 
 ,li tlic ailvicpdf 
 , tluit ill aii|KUil 
 M'li 1imI){i'(I, and 
 ■jfiiliitimiH itiiill 
 in li(ir<l» (it tlif 
 1 to rc(Hiirf. 
 
 '. (iUKVII.l.K. 
 
 trtixc lie/iire Jler 
 l,r-iii<''iunf^o/ 
 
 V I Ifv Majesty '» 
 1 tliiTi'df, shall 
 ice, cnKagintf tii 
 cc (if the I'rivy 
 wlicli the wiiup 
 iiy matter ixiui- 
 be iwlinitted U) 
 Bucli declaration 
 
 iviifl inland t<i 
 
 Iieii(liii(,' before 
 o hereliy enpage 
 lie orders, rules, 
 Privy Ciiiincil 
 ne t(i time to lie 
 n the Hivine shall 
 iyal)le in resiiect 
 e hIkUI severally 
 
 ndoii, and duly 
 ,•(.(1 t(i suhscrib* 
 .1, upon the pro- 
 11 l)e jiayable by 
 ti(in. 
 
 avin;; been duly 
 xture in India or 
 Irt of the Judicial 
 .1 to practise in 
 tise by an order 
 iber, a fee. if five 
 
 solicitors in the 
 . I'rivy Council : 
 of Calcutta : i" 
 
 \ 
 
 before the Privy 
 practice of the 
 Her Majesty, or 
 
 RULK8 OF THK I'illVY COUNCIL. 
 
 708 
 
 (if the Fionis of the Coinuii, or wlio shall wilfully misconduct himself in prose- Rule 887. 
 
 ciilinK pruceediuK's iM'forc the I'rivy ('oiincil, or any coiiimittee thereof, or 
 
 who shall refuse or omit to |iay tln^ (Nmncil oftice fees or cliar^eN i>ayalile from 
 
 liiiii when deiiiaiided, shall be liable to an absolute or tem|Hirarv iiroliibition 
 
 t(i priM'tise before tile I'rivy (Council, by the iiiitliority of the Lords of tlw 
 
 ,Iii(li(^ial Cominittce of the i'rivy Council u))on caumt nIiuwh at their LordsliipM 
 
 l!ur. 
 
 At THK C'OIMIT AT WiNDHOH CasTLK, 
 the 2lith daij of Junr, 1873, 
 
 TiiK Qukkn's Moht Kxcki.i.knt Ma,ikht\ In Coi niii,. 
 
 Wheukas in many appeals now iiendiiiK before Her Maje.-^ty in Coun- 
 cil IK) effectual steps have U'cn talveii by the parties or their a(,'eiits to 
 set down their cases for lieariliK', altlioii^'li more than twelve nioiitlis liavo 
 elapsed siiKM' the arrival and ret^istratioii of the transcript of aiiis'al in 
 till'* ciiuntry, and it is expedient to make further provision in that behalf: 
 Her Majesty, by and with the advice of Her I'rivy Coiineil, and uisin u 
 reconniieiidation of the Lords of the •liidieial ('ommittee of the I'rivy 
 Council, is pleased to order, and it is hereby ordered, that the solicitors 
 (ir aRciits for the party apix'llant in all such appeals now peiidiiit,' before 
 Her Maje-ity in Couixsil are hereby re(piired to take effectual steps to set 
 down their eases for hearing within six months from th.e diiU- of this Order, 
 and in all other apix'als to Her Majesty in Council within a period not exceed- 
 ing twelve months from the date of the arrival and reiristration of the transcript 
 in this country. 
 
 And ller Majesty is further pleased to order, and it is hereby ordered, that 
 it Khali be theduty of the IJe^'istrar of the I'rivy Council to report to the Lords 
 lit the .Iiidicial Committee the na!ii(>.s of the tiarties and dates of the decrees in 
 appeals in which lio etfeotlial steps have been taken within the aforesaid 
 wriods of time to set down the case for liearinj; ; and the Ijords of the 
 Judicial Coinniittee ot the I'rivy Council shall Ihi at liberty to cull upon the 
 ap]H>llant or his ajftMit in such eases to show cause why the said appeal or 
 apixMls should not be dismissed for non-iirosecution, and (if they shall so think 
 tit) to re(v>niniend to Her Majesty the (lismissal of any such appeal, or to give 
 such directions therein as the justice of the cas<' may recpiire. 
 
 And Her Majesty is further jdeased to order that iiothinK in the present 
 Order shall prevent tim dismissal of an a|ipeal under the .5th of the Rules 
 approved by Her Majtvsty on the 13th of .lune, 1853, in cii-seH Ui \vliich that 
 Rule is apjilicable. 
 
 Wlien^of the (lovernors of Her Majesty's Plantations and Dominions 
 abruafl. and the .ludjjros or Officers of Her Slajesty's Courts of .Justice from 
 which an ap|H>al lies to H<'r Majesty in Council, and a.'l other persons whom it 
 maycoiiconi, are to take notice, and govern themselves woordmgly. 
 
 Akthi'k Hki,i>8. 
 
 Uulc of r. 
 C, 2ti.lune, 
 
CHAPTER IX. 
 ENFORCEMEN'l OF JUDGMENTS AND ORDERS. 
 
 1. WiuTs OF Fi. Fa., ktc, 858.877. I 4. Salk hndeh Wuit, H(t!)-il07. 
 
 2. Attachmknt ani> Sequesthation, ! 5. RE'rriis of Wiuts, !)0S-!t24. 
 
 878-884. ! 6. DisciiAiutE ok E.k(i;ti(in Debt- 
 
 3. IssfK ANii Form of Whits, 885- I oiis, !)'25. 
 
 898. 
 
 7. Attachment of liEitis, '.(20-948. 
 
 Meaning < 
 " Writ of 
 execution, 
 and " issu 
 iuK of cxo 
 cution." 
 
 Writs of 
 ]i. ,1'a., 
 effect of. 
 
 Ven. fx. 
 
 1. WltlTS 01' FlEUI P\CIAS, ETC. 
 
 'f ^i5H. In these Rules the term " writ of execution " shall 
 " include writs of fieri facias, capias, (a) sequestration, and 
 attachment, and all subsequent writs that may issue for 
 giving effect thereto. And the expression " issuing execu- 
 tion against any person " shall mean the issuing of any 
 such process against his person or property as under these 
 Rules shall be applicable to the case. J. A. Rule 344. 
 
 in) Thf Kng. K. 1870, (). 42, r. (}, (1883, R. .58(5), has here the additional won! 
 " eli'fiit." Thf Rulen otherwise correspond. 
 
 As to whether "attiiclnnent" inchule.s " attachment of debts "' : .see l'(llmrx\. 
 Thornton, 14 (;. li. 1). .^'Jr). 
 
 M59. Writs of fieri facias {a) shall have-the same force 
 and effect as the like writB have heretofore had, and shall be 
 executed in the same manner as the like writs have hereto- 
 fore been executed. .T. A. Rule 362. R. S. 0. 1877, c. 06. 
 s. 18. 
 
 («) The Kn^. R. 1870, (). 43, r. 1, (1S8.3, H. (il3), has here tiie wor(^ .«..-: 'f 
 flf(jit ; " it is otlierwise tlie .same as the above Ruh-. 
 
 See note to Rule 8(12. 
 
 A pawnln-okers's interest in redeemable pledffes niav be taken in expcutinii 
 under a. /(■./'(. : R< Ro/hmoii, 34 Cii. I). VXk 
 
 As to what may be taken iinder executions ag.Linst potMls and lands re.'*iK-i- 
 tively, .see K. S. "(). 18K7, c. (i4, ss. 8-25. 
 
 .SOO. Writs of venditioni exponas may be issued and 
 executed in the same cases and in the same manner as here- 
 tofore. J. A. RuleSGS. 
 
WRITS OF FIERI FACIAS, ETC. 
 
 705 
 
 ) ORDERS. 
 
 r, H<t'.)-".in7. 
 s, '.I08-'.I24. 
 i.-KcuTios Debt 
 
 )i.;ins, ;i2f)-948. 
 
 cut ion " shall 
 estration, and 
 may issue for 
 issuing execu- 
 isuing of any 
 LS under these 
 Rule 344. 
 
 lie iuWitioiuil wnrti 
 )ts" : sec /'W/'ii^v. 
 
 the same force 
 A, and shall be 
 B have hereto- 
 0. 1877, c. 06. 
 
 'if 
 
 tiikci. ill .■N''Ciiti"" 
 
 a: 
 
 be issued and 
 annerasheve- 
 
 The Eng. R. 1875 O. 43, r. 2(1883, R. 617), so far as relates to writs of Rules 
 venditioni exponas is the same, but it embraces other writs, viz.: writs of 861, 863. 
 " (listrinyas super vicecomitem, fieri facias debonis eccleaiasticia, sequestrari facias 
 de bonis ccclesiasticis, and all other writs in aid of a writ of fieri facias or of 
 tlegit" 
 
 The Sheriff should sell the goods under a writ of fi. fa. vithout the issue of a 
 ven. ex., but wliere he has seized, but for some reason not sold goods, he may be 
 required to return the fi. fa. and thereupon a writ of ven. ex. may issue on 
 pnecipe. After the delivery of this writ to the Sheriff he is bound to sell the 
 goods and have the money in Court immediately after its execution : Chit. 
 Arch. 13th ed. r)84 ; KciiihUeij v. Birch, 3 Camp. 521. 
 
 8ttlt A writ of possession shall have the effect of a writ uab. fac. 
 of assistance as well as of a writ of habere facias xiostes-^"^'' 
 sionem. J. A. Kule 381. 
 
 Not in any Eng. R. 
 
 This, togetl. T with the abrogation of Chy. O. 204, makes clear what is also 
 clear by decisions in England, that this writ 8Ui)ersedfs the old Chancery 
 writ (if a-Hsistance .so far as the recovery of land is concerned : Hall v. Ha'l, 47 
 L..J. Chy. 080; Wiiman v. Knitjht, 3!) Ch. D. 1G.5 ; but in England it seems 
 that in case of necessity the writ of assistance may still be used, c/., to recover 
 possession of personal property which is in danger of being removed beyond the 
 jurisdiction of the Court : H'l/vian v. Kni'jht, sup. It may be doubted whether 
 tiiis is so in Out. in view of Rule 3. A f.|)ecial order in the nature of an 
 order of replevin, or a sixjcial form of wi..! ot delivery might probablj' in such 
 ca.se be framed. 
 
 For form of writ of possession, see Form 101 in the Appendi-v. 
 
 Tiie chief lilfference between a writ of assistance and a writ of habere facias 
 posstusio) cm is, ^hat the former instructs the sheriff to "defend and keej)" the 
 plaintiff " and hi) assigns in peaceable and quiet po.ssession wlien and as often 
 as any interruption may ■,: .'shall be given or offered to them or any of them" : 
 see IJanit'l's Forms 082 ; thus it is presumed, rendering unnecessary applications 
 for a new writ where a defendant wrongfully resumes iKjssession after being 
 ejected bv tlie sheriff: see iJoe d. Peck v. Hoe, 2 IT. C. Q. li. 27 ; Edwards v. 
 Bauwtt, D 1'. R. 10] ; Mchermott v. McDermott, 4 P. R. 252. This is now the 
 language of Form 101. 
 
 Where a plaintiff has l)een juit in jwssession under a writ of |)ossession and a 
 (k'fendaiit soon after regains iKjsse.ssicm after the reliu-n of tlie writ executed, 
 the plaintiff, on motion, is entitled to an order for a new writ of pos.session : 
 Proctor V. Weller, 3 C. L. T. 551 : see Slacpoolc v. Wa/sh, G L. R. Ir. 444. 
 
 S62. A judgment for the recovery by or payment to any EnforcinR 
 person of money may he enforced by any of the modes by lor r"-*^"* 
 which a judgment or decree, for the payment of money, of^j"^','^gJ,°' 
 any -of the Superior Courts,] might have been enforced 
 prior to the passing of 2'he Ontario Judicature Act, 18S1. 
 J. A. Eule 389. 
 
 Instead of the words in brackets, the Eng. R. 1875, O. 42, r. 1 (1883 R. 581), 
 lias the words, "Court whose jurisdiction has been transferred by the same Act. " 
 Thu Rules are otherwise the same. 
 
 Tiie effect of this Ride is to preserve the right to issue any process of execution 
 which might formerly be adopted to enforce payment of money under a judgment 
 or decree, and to make tlu^ .same availalile i i all Divi.sion.s of the High Coi;rt : 
 see ^mdon, etc. v. Mtrritt, 32 V. V. 380. 
 
 J. A. 
 
 45 
 
706 ENrORCEMENT OF JUDGMENTS AND OKDERS. 
 
 Rule 863. The principal of these were : 
 
 1. Writs (if .ftVr/ /(-(CfV^fi and (in aid theroof) venditioni exponas: as to which 
 see RuIcK H;")!* and HtJO), and (listrinii((ii. 
 
 2. Writs of sequestration : Rules 883, and 884. 
 
 In aid of execution. ; oceedin^irs niiglit also Ije taken by way of, 
 {(i) Attachment of debts and garnishee process : Muks i)2(), etc. 
 {b) Equitable execution : Rides 'J35, 1007. 
 
 Fi./a. K63. Every person to whom any sum of money or any 
 
 costs is payable under a judgment, shall, immediately after 
 the time when the judgment was duly entered, be entitled 
 to sue out one or more writ or writs of Jieri facias to 
 enforce payment thereof, subject nevertheless as follows : 
 
 («) If the judgment is for payment within a period 
 therein mentioned, no such writ as aforesaid shall be issued 
 until after the expiration of such period. 
 
 (b) The Court or Judge at the time of giving judgment, 
 ov the Court or a Judge afterwards, may give leave to issue 
 execation before, or may stay execution until any time 
 after the expiration of such period. J. A. Eules 352, 499. 
 
 The Enfe R. 187.'., O. 42, r. 1.5 (1883, R. rm), lias here the additional words 
 "or one or more writ or writs of eUyit." In other respects the Rules are to the 
 same effect. 
 
 Semhie, the jurisdiction here given to stay execution caniKit be exercified by 
 qualifying a judgment for recovery of money, so as to make it payiiljle by 
 instalments : Brien v. ISullirun, 14 L. R. Tr. 301. 
 
 Now, in all cases, judgment may be entered as soon as given by the Judge, 
 unless otherwise ordered : Rule 7<.>7. Exceptions formerly existed ui the case of 
 actions tried by jury : orig. Ri'/r r)27 ; and judgments by defa\dt of appeM- 
 ance : orig. Ride 72. The.se exceptions are nut continued in the present Iti'lcs : 
 Bee Rules 707, 708, and 705. 
 
 The use of the word " innnediately," in this Rnfe, ])robably sets .at rest the 
 question raised in ('uUeti v. Ci'/lni, 2 Cliy. Ch. 04, and ('o'llidiic v. Jimik of 
 Montreal, () P. R. 73, as to whether the jjarty to pay is entitled tj any time to 
 pay, without the issue of execution. 
 
 Xotwithst.anding this Ride, it woidd seem tliat a writ of execution apjvinat 
 a Mutual Insurance Co. cannot, luider R. S. (). c. 107, s. ]3(!, issue, in tile caso 
 of a ) policy issued on the jiremiiun note system, \mtil after the expiration of 
 sixty (hiys from tiie recovery of judgment : see Lowx"n v. t'liintdii Funmrn' Ins- 
 Co.,'*.) P. R. 185; Liiitnt v.' Camidit Fiirmntt' Intt. To., 8 P. R. 433; but that 
 provision in R. S. (). 1877. c. Kil, s. (11, did not apply to a jtidgmeiit recnveivil 
 on a ixdicy issued on the casli premium (irinciple : Lnie.wn v. i'lnwdn Furiiurs 
 Miitiiid Ins. <'i., 3 C. L. T. 452. Tlie aliove section ]3l> now applies to 
 a cash Mutual Co., except where more tluiu fifty ])er cent, of the |in'iiiimn 
 or iirennum note was paid in cash at tiie time of the insvu'ance ■ and a 
 Jucfge or Referee in Chamliers may, on application uf the judgment en-ditor, 
 inquire into tiie cpiestion, whether fifty \ivv cent, w.as ])aid, and. if he certifips 
 that it was so paid, execution may issue fortliwitli : R. S. (). c. 107, s. i;5() (2). 
 
 It has been iield that tiie recovery of costs, p.ayable under an order, will not 
 lie stayed by tiie Court of Appeal, pending jiii appeal to tiie House of L<ii'ds i' 
 the solicitors to wiioni they are payable give tlieir peisonal undertakinj? to 
 refund, in case of tlie order being reversed: (•'nrnt v. The RunqHe Fntiicu- 
 
WRITS OF FIERI FACIAS, ETC. 
 
 707 
 
 as to which 
 
 dc. 
 
 ley or any 
 lately after 
 be entitled 
 ! facias to 
 1 follows : 
 
 I a period 
 
 II be issued 
 
 ; judgment, 
 ave to issue 
 
 I any time 
 38 352, 499. 
 
 Iditimial words 
 liules are to the 
 
 1)0 exi-rcined by 
 it payable by 
 
 II by the Judge, 
 cd fii the case of 
 ault tif aiqwav- 
 
 piTseiit Bides : 
 
 sets at rest the 
 
 ,l,if V. Minik of 
 
 t> any time to 
 
 xeciitioii against 
 ssuc. ill the case 
 li(- ..\]iirati<mol 
 ,/,/ FKriiiir?' /«»• 
 ;. 433 ; but that 
 ^'incnt icciivered 
 ■(UKiil'i /'"';"'"■'' 
 
 now a\ilili''-^ •■" 
 of tbe pivnnmn 
 
 mancc- awl a 
 rnni-ut cmlitor, 
 ^f. if be certifies 
 ,. 1(17, s. 130 (2). 
 n order, will not 
 
 I 
 
 , andertaking to 
 B'Oiquc Franco- 
 
 Eijiipticnw, 3 C. P. D. 20.^ ; Morr/an v. Elford, 4 Ch. D. 3r)2; The JT/iceZtve, 5 Rules 
 P. 1 1 1 ; but see Atlij-Ocni -al v. Kmersun, 88 L. T. Jour. 87. 864-866. 
 
 Till' Court of Appeal is the proper Court to which to 'ipply to susiwiid any 
 ,idi'r wliich that Court has made, consequently the a})plication should be made 
 to it to stay proceedings under its own order, pending an appeal from that 
 order : The Khedive, siqmt. 
 
 Mnn-dti V. Infiehl, 1 Charl. Ca. (Court) 142, was an action for libel ; a verdict 
 for tb<' i)laiiititf for £100. " Huddleston, B., said that although he was now 
 abli 1(1 order immediate execution, he would adopt the old (English) i>ractice, 
 imil -'ivt xecution in fourteen ilays." 
 
 In /''(///■'/• \ . Sk-rley, 1 Charl. Ca. (Court) 143. "Following the old practice," 
 Pollock, IJ., gave executi:)ii in fourteen days. 
 
 See Ilodiieii v. Finehum, 1 Cii. D. 'i. 
 
 This Riih' abrogates the old practice, under which if a judgment creditor 
 ir -iied execution before costs were taxed, he was held to have waived his right 
 ru A'f. : Hurris v. Jeivell, W, X. 1883, 210. 
 
 HM\, Any person who becomes entitled to issue a writ of writs 
 execution against goods and chattels may, at or after theffmismay 
 time of issuing the same, issue a writ of execution against ga^nie time 
 the lands and tenements of the person liable, and deliver ^''J^'*^ 
 the same to the Sheriff to whom the writ against poods is goods, 
 directed, at or after the time of delivery to him of the writ 
 against goods, and either before or after any return thereof. 
 E, S 0. 1877, c. 66, s. 14. 
 
 865. In case any action of the proper competence of a when 
 Division Cou»'t is brought in the High Court or in a County ifawlun- 
 Court, no execution against lands shall issue unless the jud^g^jjent 
 amount of the judgment exceeds $40. R. S. 0. 1877, c. 66, f-^k^^^^ 
 (;.13. 
 
 See r/ic Z)ii'/iii'oH Coi<r< ^c(, (R. S. O. c. 51), s-s. 223, 224. 
 
 S<M». Every order of the Court or a Judge, whether in Execution 
 an action, cause, or matter, may be enforced [a) in the°"°' 
 same manner as a judgment to the same effect. J. A. Rule 
 357. 
 
 The Kng. K. 1875, O. 42, r. 20 (1883, R. 002), inserts at (i) the words 
 
 ajfainst all persons bound thereby. Otherwise the Iliik'< re the same. 
 
 Tlie same effect was given by R. S. O. 1877, c. (!(!, ,s. 72 ; and c. 07, s. 12, as 
 resiH^cts an order for i\\". iiaynieiit of inoiK'y. J3ut that Act ])rovided that the 
 order shcnild be deemed a judgment. The i)reseiit Rule only says that such an 
 onler may be enforced in the same way as a judgment, In England it baa 
 l)epn held that it is not intended that all orders are to be eqviivalent to judg- 
 ments : E.r p., ('Iiinerii, 12 (I. B. 1). 342 ; and that the provisions resjx^cting 
 .ittachnient of debts ()i('/(' !)35, et .sr./.) wiiieh afiply to judgments may not be 
 «ii|iloyed to enforce .an order dif;missing an action with cc rs ffu- want of pro- 
 ■secution: Vremciti v. ('mm, 4 t^. B. T>. 225 ; see also Kx p. Juirl of Stmt km ore, 
 -'0J^ B. 1). 012; Fx />. H7m/i»(V/, 13 <). B. 1). 470 ; FJ.c jk Uriiiiww/e, 17 Q. B. D. 
 3,'i7;/i>/(. Mnore lie Fnitlii'nU, 14 l^. B. I). 027 ; see, however, yutt v. Sands, 
 W, N. ]8,S3, 74 ; Whittaker v. W'/iittakei; 7 P. D. 15. 
 
 As to the iiractice in this Province, see notes to Rules 92G, and 935. 
 
ENFORCEMENT OF JUDGMENTS AND ORDERS. 
 
 867-869 ^^'7* A judgment [or order] for the payment of money 
 
 For pay- ^^^^ Court may be enforced by [any mode by which a judg- 
 courV"*° naent for that purpose may be enforced (a) and the person 
 having the carriage of the judgment or order for the time 
 being, shall be deemed to be the person to receive payment 
 for the purpose of enforcing the same.] J. A. Eule 340. 
 See E. S. 0., c. 66, s. 72 (3). 
 
 The Eng. R. 1875, O. 42, r. 2 (1883, R. 582) has not the words "or order." 
 (a) What follows is taken from R. S. O., 1877, c. (JO, s. 72 (3). 
 
 Instead of the other words in brackets, the Enff. R. has the following ; "writ 
 of secjuestration ; or, in cases in which attachment is authorized hy law, by 
 attachment." The original Ont. Rule 340 preserved the existing mrxles of pm- 
 cediire. In altering the language the ineaning of the jjresent Mi'le has notbei'ii 
 made clear. 
 
 In Stanfier Lealhes v. StaiKjer Lenthes, W. N. 1882, 71, payment of 'iKniey 
 into Court was enforced by the ai)j)ointment of a receiver of tlie dividt'iidaof 
 moneys invested in Court, of rents of lands, and of sliares in a mining uoin- 
 jianv, in which the party ordered to pay had an interest : so also in < <'ii(i/\, 
 IknnHI, 33 W. R. 700 ; 2i» Ch. D. !)!>3, wliere money was i)ayabk by a triisl.t.f 
 into Court, he being out of the jurisdiction. 
 
 Th(! English R. of 1883, R. 582, enables an order for jjnyment into Court to 
 be enforced by writ of attiichnient in certain cases : see )liitchliis(,it v. Ihul- 
 ■jtiiint, VV. N. 1877, 2!> ; but that process caniii't be emi)loyed iiere : see notes to 
 Jiiilcs 878, to 880. 
 
 For re- HUH, A judgment for the recovery or for the delivery of 
 
 ?aud.^ the possession of land may be enforced by writ of posses- 
 sion. J. A. liule 341. 
 
 Identical with the Eng. R. 1875, O. 42, r. 3 (1883, R. 583). 
 
 A writ of possession was ordered to issue in an action by a landlord against 
 a tenant, notwithstanding that tlie landlords reversion terminated bcfdre tlie 
 tiii'l, the defendant not sliowing afiirniatively tliat it would be unjust aii<l 
 futile to issue the writ : Fiii'jlil v. Clurhr, 15 (J. 15. 1). 204. 
 
 A tinid order of foreclosure is not a judgment for tlie recovery or dillvciy of 
 ])ossession of laud witliin this Itulc : see Wmnl v. Wlifidi r, 22 ("h. 1). I'M 
 altlioiigh the bringing of an action for foreclosure stops the running nf tin- 
 Statute of Limitations: Ilca'h v. Finjl,, C) C. P. 1). 34."). Tnder tlie practiee 
 in Ontario, an order for tlie delivery of possession forthwith may be coiUained 
 in the judgment in a foreclosure action ; see Ridf (341") and Eonii.-i SL', S;f ; 
 i)ut where it has not lieen s" obtained, I'.n apjilicatioii for an oidrr for 
 delivery of iiossession may bi^ nuide on or after obtaining the final oidtr for 
 sale, or foreclosure : Rule 341 (((). See notes to that lliilf. 
 
 See Rmld v. Frank; 17 Ont. at j). 704. 
 
 For the purpose of recovering possession of land, the writ of ]M)ssessioii 
 
 i])ersedes the old writ of assistance : Wi/iimn v. Kiti'jlit, 30 Ch. D. lit."). 
 
 ^^4»0. Where by any judgment any person therein named 
 is directed to deliver up possessica of any lands to some 
 other person [on or at any specified time after being served 
 with tlie judgment,] the person prosecuting the judgment 
 shall, without any order for that purpose, be entitled to sue 
 out a writ of possession on filing an affidavit showing due 
 
^' '" 'yrtf'^.!?? 
 
 of money 
 ch a judg- 
 ,he person 
 r the time 
 e pavment 
 
 Eule 340. 
 
 Is *'or order." 
 
 lowiiip: "writ 
 ed liy law, by 
 ' iiKMles (if [Wi- 
 lli- lias uotbfHi 
 
 nenl nf ■'noiiey 
 lie dividfiids of 
 a iniiiiiife' coin- 
 also in (."n<!l\. 
 )k by a trusU't 
 
 it into Court to 
 liitsini V. Hint- 
 i-e : see notes to 
 
 3 delivery of 
 
 it of posses- 
 
 landlord against 
 
 untcd ticfoiv tlie 
 
 |ji' niijn^t and 
 
 tV or dclivciy of 
 ■o._) Ch. 1). •J!<1 
 ninnin^' of tlii' 
 ler tin- |iraftiw 
 ,;iv 1„. cunlainot, 
 1 Vorms SL', S3; 
 „. ;in order for 
 le tinal order for 
 
 rit of iio-«'ssion 
 
 ;;ii. 1). I""'' 
 
 lerein named 
 ,nds to some 
 
 being served 
 lie j u(l .lament 
 iititletUosue 
 
 showing tlue 
 
 RECOVERY OF LAND. 
 
 YO0 
 
 service of the judgment and that the same has not been ^JJ^" 
 obeyed. J. A. Rule 380. *'"''^'- 
 
 Identical with the Eng. R. 1880, O. 48 r. 2 (1883 R. 045), except the words in 
 brackets which are not in the English Rule, but seem implied therein. 
 
 In Cliitty's Forms (12th ed.) p. 596 note, it is said that the affidavit is only 
 necessary in cases within the words of the Rule, viz., where the judgment 
 directs the defendant "to deliver up iwssession." 
 
 Tlie judgment on an award is iji this form and judgments in the Chancery 
 Division are sometimes so drawn. In the other Divisions the form is "that the 
 plaintiff do recover," etc. : see Ajip. Forms 1(13 to 1(55. 
 
 Tiie affidavit in supjiort of a writ of assistance needed only to show that the 
 order was notconi|)lied with within the time limited, and not an existing non- 
 compliance : WclmUr v. Taylor, 18 .Jur. 80!). 
 
 Set Ridf I'lH and note. 
 
 M70. Upon judgment or order for recovery of any land ^^^ecutjon 
 and meane profits or rents in respect of the premises and costs, 
 claimed and costs, there may be either one writ or separate 
 writs of execution for the recovery of possession, and for the 
 vu'sne profits, rents and costs, at the election of the party 
 entitled to recover the same. R. S. 0. 1877, c. 51, s. 36. 
 
 It is held m Ireland, under sec. 209 of the C. L. P. Act (1« A; 17 V. c. 113) 
 repeated in the Rules under the Ir. .Tud. Act, that where a jdaintiff has obtained 
 av-rdict for possession, mesne profits and costs, execution for possession cannot 
 issue till the costs are taxed, vniless he has waived them : Beadey v. Chapman, 
 G L. K. Ir. 393. 
 
 Tliat sectitm is as follows : 
 
 "2(i!l. Upon any judgment in ejectment there maybe either one or several 
 writs of execution for the recovery of possession and for the diimages, the 
 rents ascertained to be due and costs, at the election of the plaintiff." 
 
 S7I. The writ of assignment of dower required to bePopno^ 
 issued after a judgment in an action for dower has been Msignment 
 entered in favour of the plaintiff, shall be in the form °^ '^°^''®'" 
 hitherto in use in Ontario. C. L. Rules, 15th February, 
 
 1862. 
 
 W2. The writ of assignment of dower required to be 
 issued under the third clause of the Dower Procedure Act, 
 when the right of dower is acquiesced in by the owner of 
 the estate, may be according to the form given in Form No. 
 201 in the Appendix. C. L. Rules, 15th February, 1862. 
 
 S7Ii. In all cases where specific goods, cliattels, deeds, Execution 
 securities, valuable papers, or any property other than land pony other 
 or money, are demanded in an action, and the plaintiff has "^'^" ''^"'^^' 
 judf^nient to recover th(> same or their value, the Court or a 
 Judge shall, at the request of the plaintiff, where a recovery 
 or delivery of the property in specie is desired, direct a writ 
 of execution to issue on the judgment, commanding the 
 
 :5l 
 
710 
 
 ENFORCEMENT OF JUDGMENTS AND ORDERS. 
 
 tiff. 
 
 Daina(;o8, 
 ooBts, etc. 
 
 Rule 874. defendant specifically to deliver up forthwith the property 
 demanded, and in case of refusal, that the defendant be 
 arrested and detained in prison until he complies with tlie 
 terms of the writ, and also that the goods and chattt4s of 
 the defendant to double the value of the property in ques- 
 tion be taken and kept until the further order of the Court 
 to ensure or enforce obedience to the writ, or that a writ of 
 
 tiie plain*- ^^questration may issue ; or, at the option of the ])laintiff, 
 the Court or Judge may order the Sheriff to make of the 
 defendant's goods the value of such property ; but the 
 plaintiff shall, either by the same or by a separate writ or 
 writs of execution (to be issued in the ordinary manner) be 
 entitled to have made of the defendant's goods or lands, the 
 damages, costs and interest in such action. 11. S. 0. 1877, 
 c. 66, s. 56. See J. A. Rules 342, 882. 
 
 Not the .same as the Kntj. Rule 187:"., O. 42, r. 4, and O. 49, (1883, K. .W), hut 
 substantially the Hame an Rule ()4!t t)f 188;<. 
 
 The original /{nl(s'M2, ami 382, in sul)stance preserved the fonuer |>nvctice 
 at Liiw in actions of u'liimir. 
 
 The writs of e.\ecutit)n in actions of tlitiiiuc were the writ of di^trinijns to 
 compel the delivery of the goods hy the i)arty, and writ of ret. fii. to 0(11)11*1 
 delivery hy any third person in who.se hands the goods might li:i|i|icii te be. 
 The manner of issuing and enforcing these writs was expre.ssed in R. S. 0. 18*7, 
 c. (50, .s. 50, from which the terms of tlie above /lulr are taken. 
 
 The judgment for delivery of the proix-rty or payment of its \idue does not 
 divest the plaintiff of the property in tlu' ch.ittel until th< sntisfaetioii ef the 
 value found by the judgment even though satisfaction is jn-eveiitcd by the 
 banl<rui)ti:.v of defendant : A':r /*. Drake, 5 Ch. 1 ). .*^(i(i. 
 
 It is doubtful under the English Rules, whether an order f ir '"le writ is 
 necessary: Imrii v. ('ruirkslunik, W. N, 187.'), 24!l. In Out. it 's prohiiiile tlmt 
 the direction of the Judge will be given in the judgment. 
 
 In rro;-// v. Criiickuhaiik; \V. X. 187."), 24!t; 1 Cliail. C"li. Ca. 12.% an autieiifdr 
 rent ,ind f(jr the return of specific goods, judgment liaving been signed fertile 
 amount of rent in defauU of appearance the i>]iMntifV was allowed to ^ifrii 
 
 1'udgment also for the letuvii of the speciHo goods, and to then proceed uiiiliT 
 Mig. R. 084 as he might be advised by writs of delivery, .■utiuiiimeiit or se(|iiw- 
 tration. In /iittt/' // v. Sfars (Times, 7tli March, 187(). cited f 'barley's .lud. Act, 
 3rded. p. (>()!>), it is stated that a rule u/.s/ for an iittitclinieiit was granted af,'iiiiist 
 a defendant for refusing to give up a diamond ring or pay for it, execution 
 having proved futile, as the defendant was a niiirried woman. 
 
 For Execution .igaiust Municipal Corporations : see R. S. (). 1887, 184, ss. 428 
 and 42!». 
 
 judginent H74. A judgment requiring any person to do anv iut 
 perscm'to othcr than the payment of money, or to abshiin from doing 
 undone!*^^ anything, may be enforced by writ of attachment, or by 
 committal. J. A. Rule 343. 
 
 Identical with Kng. R. 187"), (>. 42. r. r\ (1883, R. .58.')). 
 
 Foniierly where a writ of attachment on a ca. .ic. was obtained, a ji. f«. 
 could not be also i.ssucd, whereas proceedin^fs for eommittal for disobedieiiw of 
 Rn order were no bar tu proceeding also against the jiroperty of the coiiteiniior: 
 
5 property 
 emlant be 
 H with the 
 2battt4s of 
 ,y in ques- 
 the Court 
 it a writ of 
 le ])laintiff, 
 lake of the 
 ^ ; hut the 
 ate writ or 
 nanner) be 
 r lands, the 
 S. 0.1877, 
 
 .83, K. 584), but 
 
 ionner i)ractice 
 
 ,f lUMviwm to 
 ■. (ii. to comiH'l 
 
 it iKVpllfll til 111'. 
 
 „H. S. ().1H77, 
 
 ■; Villui' <li>t'« l>lit 
 isf.'iction of tlif 
 i-vcnti'd liy the 
 
 fir *'i(' writ is 
 is i)rol)iit)le that 
 
 23, mi action for 
 11 sif,'iif(i for the 
 allowoil to "IRll 
 n iiroiTi'il miller 
 uiioiit orsfiiut'S- 
 irli'V'.- •lull. Act, 
 sifraiiti'ila^tiiiiist 
 f.'ii- it, I'.xwuticn 
 
 1S.H7, ISl, s.-. 428 
 
 do any aci 
 ti tVoin (loins:; 
 nient, or by 
 
 ,l)tiiiiic(l. a .«. /«• 
 ii-ilisolieilu'iiw-ot 
 
 ,f till! cuiiteiniior: 
 
 EXECUTION AG.MNST PARTNERS. 
 
 Smith Chy. Pr., 7th wl, p. 1H.>; see o.U» Harvcij v. Harvey, 2(5 Oh. D. d'A ; 
 Ciilhiw V. Ynunii, 00 L. T. N. S. 147. 
 
 As to mode of obtaining a writ of attachment, see note to Ruhi^ 878, and 879. 
 
 On a notice of motion to commit the defendant, M.nlins, V.-C, ordered a 
 writ of attachment to i.ssne a}j;ainst him : I'iiur v. Piptr, W. N. ]87fi, 202 ; but 
 after olitaining an order fcr an attachment, a party cannot move ex intrtc for 
 an order for committal instearl : Bnist v. Jiri</;i<;-i:^ L. T. N. S. 4.S2 ; 21» W. I{. 117. 
 Tliri distinction between attachment and committal, it would seem, still e.xists : 
 Ciilloii' V. Yiiinui, u(i L. T. N. S. 147 ; .see also note to Jiulc 870, p. 71(>. 
 
 Tliii Court will not encourage motions where the object is not really to 
 attach, l)iit only to olitain an apology and costs, and therefore in I'latimj Co. v. 
 Fiininhitrson, 17 Ch. 1). 50, no costs were given. 
 
 As to obtaining a writ of .sequestration, where an attachment is ineffectual, 
 sec notes to Rnlv H81. Also in the case of a corporation : Vook v. dniUt V'lUoi 
 Rij. Co.. 8 P. H. 107 ; Dnminxi v. Miilhunt, 10 V. H. 82. 
 
 As to enforcing injunctions, and i>unishing a breach thereof, see further 
 the nites to sec. ii& (8) of the Act. 
 
 .H75. Where a judgment {a) is to the effect that any 
 party is entitled to any relief subject to or upon the fulfil- 
 ment of any condition or contingency, the party so entitled 
 may, upon the fulfilment of the condition or contingency, 
 and demand made upon the party against whom he is 
 entitled to relief, apply to the Court or a Judge for leave to 
 issue execution against such party. And the Court or Judge 
 may, if satisfied that the right to relief has arisen according 
 to the terms of the judgment, (a) order that execution issue 
 {iccordingly, or may direct that any issue or question neces- 
 sary for the determination of the rights of the parties be 
 tried in any of the wa;>s in which questions arising in an 
 action may be tried. J. A. Rule 345. 
 
 Iiloiitical with tlie Kag. \\. 1875, (\ 42, r. 7. That of 1883, R. 587, has at («) 
 tlui Words "or order." 
 
 In an action for specific iierforiuanci' of a contract for the purchase of lease- 
 llolll^. juilgnniit was obtained for the payment of purcha.stt money on the 
 delivcrv of dee.l.s. The vendor tenderc'd llie deeds, but the ])iirchast r efuseil 
 to at! 'CI >t tiieiii or iiay the money. On motion under this linh the viaidor was 
 ordcivil to deposit tile deeds in Court, and the iiiirchascr Wi(~ ordered to pay 
 the luoiiev within four davs : Bdl v. Dcnvir. 34 \V. \\. Ii38 ; ,")4 L. T. \. .S. 
 724 ; W. X. 1S8(;, 113 ; .see also Mori/au v. HriKro, 31 Ch. 1). 210 ; 32 Cli. 1). 102. 
 
 >H7<». Whore a judgment is againnt partners in the name 
 of the firm, execution may issue in manner following : 
 ('/) Against any property of the partners as such ; 
 
 [h) Against any person who {x) has admitted on the 
 pleadings that he is, or has been adjudged to be a 
 partner ; 
 
 ic) Against any person who has been served as a partner 
 with the writ of summons, and has failed to appear. 
 
 Tile service here contemiilated would sefiu to be personal service ; stcd quare : 
 we Ji(f<j(i./i v. Litchtiihl, 8 (). h. 1). 478 ; 40 L. T. X. S. 510. 
 
 711 
 
 Rules 
 870, 876. 
 
 Judgment 
 for con- 
 ditional 
 relief. 
 
 .ludcmeut 
 
 afiaiust 
 
 partner*. 
 
712 
 
 ENFORCEMENT OF JUDGMENTS AND ORDERS. 
 
 C{ , f 
 
 Rule 877. If the party who has obtained judgment claims to be 
 entitled to issue execution against any other person as being 
 a member of the firm, he may apply to the Court or a Judge 
 for leave so to do ; and the Court or Judge may give such 
 leave if the liability be not disputed, or if such liability be 
 disputed, may order that the liability of such person be 
 tried find determined in any manner in which any issue or 
 question in an action may be tried and determined. J. A. 
 ICule 34G. 
 
 Identical with the Eng. R. 1875, O. 42, r. 8. That of 1883, R. 588, ha8at(/) 
 the words, "who has appeared under his own name, under Order 12, Rule 15 
 (Ont. Itu'c 288) or." 
 
 This Ititlf provides the mmlo of realizing, against a firm or the iiulividual 
 partners, a judgment obtained against the hnn : see Riihn 2V>'), and U.SS, 
 
 Where the writ is issued against partners, not individually, but in tlipiiaiiie 
 of the firm, service of the writ on one or more will be sufficient : liiili'2i)'>\ but 
 the judgment nnist follow the writ and Iw against the finn : /{ult '2HH. There- 
 fore, if no appearance is entered, judgment eamiot be entered against any of the 
 individual i)artners, even though they may have been servecl witii tiie writ. 
 E.\ecution may, however, under this liidf, he issued, without leave, in the ca«es 
 mentioned against individual partners, ujxm the judjjment again.st the firm; 
 Jackno' V. Litchfield, 8 (l \i. 1). 474. 
 
 This Ruh shew.s tliat a judgment against a firm is not conclusive of the 
 liability of a person who has neither admitted on tliH pleadings tiiat he is, nor 
 lias bv'en adjudged to be a partner, nor has been served with tlie writ. E.\ecu- 
 tion in such case will not be allowed to issue without a trial of tiie liability 
 under the last clause of the Itidc : ex parte Youni/, I'J Ch. D. 124 ; 18 C. L. J. 
 111). 
 
 On an admission in the depositicms of a person sought to be made liable 
 under this Ride, taken on the motion it was held tliat the Master in Chambers 
 miglit inider Rule 75(5 detennine that such j)ers<m was a partner without direct- 
 ing the trial of ;in is.sue : Tennant v. Maiihard, 12 P. R. <51!t. 
 
 The execution is not limited to partners carrying (m business at the date of 
 the writ, but it is a question of fact in each case whether the plaintiff intended 
 to sue under the firm name those jHirsons only who where jnirtncrs at the date 
 of the writ, oi' former partners as well : Duvin v. Morris, 10 l^. V>. \). 430. 
 
 The i)laintiflF is not confined to his remedy agiiinst the individuals by execntinn 
 under this Ride, but may bring fresh actions against the partners individually 
 upon the judgment obtained against the firm : CUtrk v. Cullen, !) (^. 13. D, 355. 
 
 See also notes to Rules 288 and .317. 
 
 onexecu- 877. Where any money (other than for costs) is 
 
 fant, ^"^ recovered by or on behalf of an infant, or a poison of 
 
 bl°paKi*° unsound mind by his guardian, next friend, or connnittee, 
 
 into Court, t^e Same shall, unless otherwise ordered, be paid into 
 
 Court subject to further order ; and no jiayment to the 
 
 guardian, next friend, or committee, of moneys due to such 
 
 infant or person of unsound mind, otherwise than for Uie 
 
 costs of any such action, shall be a valid discharge to the 
 
 party making such payment as against the infant or person 
 
 of unsound mind. Every writ of execution for the levying 
 
 of any such moneys is to be indorsed by the officer issuing the 
 

 ATTACHMENT AND SEQUESTRATION. 
 
 713 
 
 lima to be 
 )n as being 
 or a Judge 
 y give such 
 liability be 
 person be 
 my issue or 
 ned. J. A. 
 
 clt-r 12, Rule 15 
 
 ■ the individual 
 and 2SS. 
 
 but ill tlie iiaiiie 
 : 7i'»/c-'li."); but 
 ((/( "JSH. Th™- 
 j^iiinstiuiyofthe 
 1 with tlui writ, 
 MiVf, ill the cases 
 igainst the firm : 
 
 onclusivH of the 
 L's tliiit he is, nor 
 \w writ. Kxecu- 
 A of tlip liability 
 124 ; IH C. L. J. 
 
 o be iiiiwle liable 
 tstcr ill Chambers 
 er without direct- 
 
 t'sa at the date of 
 ..laiutiif iiitendetl 
 rtiitrs at the date 
 
 B. 1). 43(5. 
 ilnalrt by execution 
 tiuTs individually 
 1) q. B. D. 355. 
 
 or costs) is 
 a por.son of 
 or committee, 
 be paid into 
 ,yment to tbe 
 vs due to such 
 e tban for the 
 scliarge to tbe 
 fant or person 
 for tlie levying 
 cer issuing the 
 
 same with the following notice : " All moneys made under Rule 878. 
 this execution, other than costs, are to be paid into Court 
 by the Sheriff, as required by Rule 877." J. A. Rule 589. 
 
 2. Attachment and Sequestration. 
 
 H7H, A writ of attachment [against the person shall be Effect of 
 issued under the same circumstances and in the same man- meut. 
 ner and] shall have the same effect as according to the 
 practice of the Court of Chancery, prior to The Ontario 
 Judicature Act, 1881. J. A. Rule 804. 
 
 Tilt' Kng. \i. lf^"">, O. 44, r. 1, (1HS3, R. (120,) 1ms nut the words which are iu 
 brackets ; it is otherwise to the same effect. 
 
 K. S. (). I'HH", e. 07, sec. (i, is as follows : 
 
 "10. Process of contempt for non-])ayment of any sum of money, or for non- \{ev. Stat, 
 paynicnl of any costs, charges or expenses, payablt; by any jiidgnient or order e. 07, s. G. 
 (if tlie High Court or of u .hulge ti;ereof, or by any judgment or order of 
 a Cduiity Court or a .Tndge theicof, is abolished ; and no person shall be Liable 
 to arrest for non-iiayment of costs." 
 
 Chancery Order iiSS provided lus follows : 
 
 "288. If a i)arty who is ordered, otlierwi.se than by an order of course, to do r,h. Orel. 
 any act, other than to pay money, in a limited time, refuses or neglects to obey 288. 
 the (irder according to the exigeiu^v thereof, the party iirosecuting the order 
 sliall, at the expiration of the time limited, ui)on tiling with the Registrar an 
 affidavit of the service of the order, and of the non-i)erformance thereof, bo 
 entitled, u\nm jiinrijic, to a writ or writs or attachment against the disobedient 
 party.'' 
 
 But Hull' 870, requires a notice to be served an<l leave to be obtained before 
 an attaclinientis issued. To this extent the former [u-actice preserved by Bn/e 
 878 in varied. 
 
 Cliy. Order 21>3, jirovided that every order rerpiiring a i)arty to do an act. Cliy.0.2'J3. 
 other than tiie payment of money, should have indorsed upon the copy of the 
 order served, a memorandum to the effect set forth in Schedule X to the Chy. 
 Orders notifying the party as follows : 
 
 " If you, the within named (/wrc Insrrt the name nf the parti/), neglect to obey Schedule 
 this order by the time therein limited, you will be liable to be arrested by the X. 
 sheriff; and you will also bo liable to have your estate sequestered for the 
 l)iiriio,se of compelling you to obey this order without further notice. If you 
 wish toai»ply to the Court to add to, vary, or set aside the said order, or to 
 su!ii)eiid the oi)eration thereof, you must do so before the expiration of the time 
 within limited." 
 
 This Ciiy. O. 203, is not lonsolidated in the Ont. liidrs, but the corresponding 
 Ens'. (). is continued in the Eng. Rules of 1883, K. 573. Under the new 
 practice it was held in Knglan<l under the Rules of 187.'), (but of course not 
 :inder the Rules of 1883, R. .573 : nw Hitwixini v. W'liUis, 2(i Oh. 1). 74(i, and 
 Treheniv v. Ih,l,\ 27 Ch. I). (l(i ; 'A L. .T. Chy. 83), that this indor.semeiit was 
 not necessary, as an attacdiment under the new procedure could not be (d)tained 
 except u|Hin notice ; .see A'l'/'' 870, but the rule might bt- different in the case of 
 ii sequestration : Tlmniits v. I'nliii, 21 Ch. D. .SdO ; and .se(! Wdlltirc v. O'rnliKM 
 11 L. H. Ir. .SdO. In Ont. a sequestration does not issue on jimcipi' except 
 wiiert' a party is already in custody un.ier an attachment: see Iiu/c'2S'.); and 
 '.n other casts, is not, under Jiidr 882, obtained without notice; so that tlii.' 
 indorsement wt)uld seem to l)e not necessary in cases either of attachment or 
 secpiestration. 
 
 rfSii* 
 
 < 
 
 '■'^ 
 
 <^ 
 
 %. 
 
 Wig. K. 573 has no apjilicaticm to a proliibitivc order 
 L. T. X. S. 21(1 ; 20 S.d. .lour. 485. 
 
 tielous v. CriujdiDi, 53 
 
f 
 
 714 
 
 ENFORCEMENT OF JUDGMENTS AND ORDKRS. 
 
 Loavo to 
 
 iSMUU. 
 
 
 Rule 879. Where defmilt in foiuiilvintJ with ivn orcU'i- \vivn not eleiirly enon^'h hIipwh to 
 justify an order for iittacliiiient, if the opposite party liad not ap[)(ari-(l, tlic 
 defect was iield to he cured liy his appearing and ruHiatiiig tlie motion on utiitr 
 grounds: Trihrriic v. /><(/(■, 27 Ch. 1>. tJtJ. 
 
 S7tt. No such writ of attachment shall be issued without 
 the leave of the Court or a Judge, to be applied for on 
 notice to the person against whom the attacluueni is to be 
 issued. J. A. Itule 8G5. 
 
 I(Uiitical with the Knp. H. IS?.'), (). 44, r. 2, (1883, R. 021). 
 
 This Rule introduced an inijiortant chan^fo in tiie C'iiancery I'nicticc. A 
 writ of attaclnnent can now never issue as of right without an order, (,'mntHl 
 after notice to tlie party : Jiiti'/i iit v. Jitiiinnt, 1 1'. 1). 421 ; W. X. 1H7J, :;iH; 
 Alnid V. JticluK, 2 Oil. D. .")28 ; JJal/n^ v. tJ/i/ii, '.iCU. J). 1!M»; see lii Hiiinni 
 EnUitc, Hull V. Li II, 12 C;h. D. 7!l") ; Hi Kniijlit, Kiii<ilit v. d'urilinn; Si Cii. 1). 
 2i»7 ; Jii t'liatliiim Nunrstir (.'o. v. ('iiinjihil/, 12 i", H. (>(i(>. This was tlic n\\v 
 in tile Common Law Courts, except in tlie case of an attachiiii at iiK"i'i"t a 
 siieritf for disobeying an onU'r to return a writ ; in wliicii case the nilf was 
 made absolute i\r imrfi' : Keg. (ien. T. T. 18r)(), K. 140; see ./«///) v. ('ixii,ir,^) 
 C. 1'. D. 20. In Jiijijt V. ('oD/iir, all that the attenticjii of the Court was iiiIIikI 
 to was whotiier tlie order should bt^ absohlto in tlie first instance, nr only 
 an ordiir n.ini, and titt^ latter was granted, as also was done in Fmrhr v. A-^hfuri.l, 
 4;") L. T. N. .S. 4(i. An attiuihiuent against tlie Slieriff, like any other attadi- 
 ment, is now governed by tlie new Itiili' : KiiniU' v. Umdil, '.I <^>. li. 1). 'XX): see 
 also DiillitK V. (ihm, anpi'a ; Rf Hiirnnn Estiitf, siiimi. Rule MOof T. T. 185G 
 is expressly abrogated by the Con. Rulen. 
 
 The jirovisions of Rale 1170, ini'rii, apply to an ajiplication for an attacliniMit' 
 The costs are therefore in the discretion of tlie Court : Alu'd v. JHchai, mipiib 
 and sliould be aslced for and disposed of on the application for tlie attaeii- 
 ment : Ih. 
 
 A motion fi:r attachmeno when made for non-conii)liance with riilcii of 
 yiractice or orders of course, or orders in Ciianibers, may be made to a .fii(l(,'ciii 
 ('haml)ers: see .V'</»( Ki/rliiii-;/ w /'(i.siiinis/,-i, VM-i. 1$. J). 218; .\iii\/i/l \. /.(.^sf,; 
 o3 L. T. N. S. 70!); 34 \V. R. 230 ; but when made for non-eoiii)iliaiice with an 
 order or judgment of the Court should l)e made in (^)urt ; h'liiii v. Uiii"n 
 Fi'V Ins. t'li,, 3 C. L. T. 002. The i)ractice in lOnghind is not similar to that in 
 Ontario: see /iari.s v. U'lilni'ii/i; 30 Ch. I). 322 ; 40 Ch. 1). Sn.j. 
 
 Neither the Master in Cliaml)ers, nor a County Judge (acting under JinlciiO 
 or 41), has jurisdiction to entertain a motion to attach or cf)imuit, as siieli 
 matters are excepted from the powers conferred u])on them ; see A'i'/c Jill, and 
 hW/c V. n ■<(/■-/, i) p. R. 220. 
 
 Two clear days' notice of motion is sufliciwnt. The i)ractico laid down in 
 Aoell V. l/i/f.% C, P. R. 122, and liri/ir v. Mf/iiti/ir, 7 1'. R. 134, is not now in 
 force : Moiitu/Ziiui v. iJubliiii, 2 C. L. T. 21.') ; see also Cmik v. Cmlit WtUaj Rij. 
 Cm., 8 P. R. i(;7. 
 
 Where the order to be obeyed has been personally served it is nevertheless 
 necessary, in case of disobedience, to serve ))ersonaIIy any notice of motion for 
 attachment or committal, exci'pt in tlu^ case [irovided for \)\ Ituli :>l.'l of dis- 
 obedience of an order to bring accounts into the Master's Ottice, or for 
 production, or inspection of books and jiapers ; incases under Hub' Tv.'litis 
 not necessary to serve a notice of motion to attach personally ujion the 
 disobedient party, if he has a solicitor : see Wihrni v. Witsun, 7 1*. H. '•"■ 
 
 Where personal service of notice of motion to attach the defendant could not 
 be effected, the order was made on atttd.avit o' service of the notice on a 
 solicitor who had appeared in the action for the defendant, altlmiigh the 
 solicitor had ceased to act for him : Calhiw v. Yiiiimj, ,55 L. T. N. >S. 543. 
 
 There is no distinction, in regard to service of a notice of motion for attach- 
 ment, between contempt in breach of an undertaking, and contempt in briach 
 
 NoticG of 
 motion. 
 
 Service of. 
 
ATTACHMENT AND SEQUESTRATION, 
 
 715 
 
 mis'h sliflwn to 
 
 liplHlUvd, till' 
 
 idtiuii (111 (itlit-r 
 
 led without 
 iliod for on 
 ent IB to be 
 
 y I'nictict'. A 
 1 onliT, (jriintHl 
 '. \. 187"), 21S : 
 Ncn ill Hiirm'i 
 inn; 'J") f'li. 1». 
 \w was the riili! 
 iiiK lit UKHiimt a 
 s(^ tliti rule wa.'* 
 II mi V. f'lOTjiir, 5 
 loiirt was ciilliil 
 iistiiiicr, nr ijiily 
 iirli r V. . I ■■•■/(fort/, 
 II V otiici' attach- 
 I." 15. 1). :«■>: see 
 MO of r. T. ISoti 
 
 r an attachment' 
 V. IHcIdh, fiipio.' 
 1 fdv tlic attach- 
 
 M- with rules (if 
 idc t(ia JudKem 
 .]i,i.s(ill V. Li.i^i'i; 
 
 iililiaiicc with all 
 A7i'//i V. Uiiii'it 
 
 similar to that in 
 
 igiindcr /?"/''.« 30 
 CDiuiiiit, as siieh 
 si'i- II III c 'A and 
 
 ico laid ddwu in 
 ;Vl, is nut iKiwm 
 '•mlil VaUqiRij. 
 
 it is nevertheless 
 tice of iiiotiim for 
 
 Hull 111!! cf dir:- 
 
 i Ottice, (ir for 
 der Huh 521 it is 
 souallv "l><ii> the 
 ,7 1'.'H.^''T. 
 feiidiuit could not 
 
 the notice on a 
 Hit, altiiough the 
 
 N. S. 5-13. 
 uiotiou forattach- 
 inteniiit in bnach 
 
 of an injiinotion, kiiowlocige of wliicli is i^ivcn by previous wervicn of the Rule 879. 
 onler ; /''. 
 
 An older to didiver a liill of costs servod on ii solicitor's clerk at liis ottice was 
 (liholicyed. '*ii motion for attaclinieiit the solicitor swore that he had not lieeii 
 iiersoiially served. .\ letter from him Kiviiij; reason for delay and |iromisiii^' 
 todidiver liills was iiroduced, hut it was htdd that the necessity for per I'lial 
 m-rvicc wiiH not waived hy tiie letter : Hf ('nuniiiij'iunt, 'm L. T. N. S. 7<Mi 
 
 In Muiiii V. /Vnv/, W. X. 18S1, 4 ; ■U L. T. N. S. 248 ; tn) L. J. Cliv. 'J.".' it 
 WHS li(dd tiiat notice of motion to commit must lie served personally, iiiih ss 
 m\w n-iison is shewn for disiieiisinj^ with personal service. On a motion for ii 
 ftttacliiueiit however, it hail previously liei n held that service of notice ■ f 
 niiitiiiii ii|ion the solicitors on the record of the party to lie attaidied was siitH- 
 ciciit tlioii(?li personal .service was not shewn to Im,- impracticalde : /Iri'imin;/ v. 
 Miiii,') (.'h. I), "ill ; Kicliinih v. Kilrln-n, LV) NV. K. W2 : or liy leaviiiL' the 
 iiiitict at tliB residence of tiie party affected theridiy : Ri' <t Sulicitur, 14 Cli. 1). 
 Vil. .See also Tiliiiij v. Sli(ii!i/ii/i/,'\\'. N. 1H8(», 77. 
 
 I'l'Vi;/, is to 1m) followed ; Smith v- 
 /lull- ')'2\, applies: Hr J/niiii/iii, 11 
 
 III O-.iario it was held that Mniin v, 
 Miirri , -t (J. L. T. 4!t3; e.xceiit wliere 
 1'. K. 'X,. 
 
 In III" Sli'i'lr, 23 Sol. .four. !IOt>, the (piestion was raised wdiether the order Sorvico of 
 td lie olicyed need lie personally served since an attachment can now only lie the order 
 had ii|Miii notice. It is siilimitted. however, tliiit thert! is nothiii),' to alter the *" '_'" 
 former iinictici- which reipiired personal service of the order to lie olieyed, """y""- 
 (exceiit 111 cases under //(//(' 022), more especially where the notice of motion to 
 attach need not lie perHonally served. Service of notice is waived hy I'ounsel 
 aiiiiwiring and consenting' to an enlargement : /■> ji. -I/cot'/.', 1 C. P. D. 08, 
 
 The copv of order served must lie an exact co]iv: lir Jfult, 11 Cli. 1). lli.S; 
 fee also A'.'' ji. Smith, 28 W. H. 174. 
 
 The ]ii(ivisions as to siilistituteil service have lieeii held not to apply to an 
 ajiiilicatioii for an attachment, liut only to service of writs of sumnioiis ; AiU'ii, 
 \V. N. ]S7(i, lu."i ; hut s(«e cases .in/ini ]i. 3111, and Willi" nix v. Julius. 2 I )ick 
 477; 1 Mer. 303 (</) ; I'lillfiin/ v. Shfltfui, 5 Ves. 147; />i\Uiniiirril/,- v. IhMan- 
 fmulli;V> Ves. 202; hrhmrr>' < •hurl tun's nisr, 2 .M. (fc ( '. 3.ri ; also ll^jir v. 
 I'linieifu; L. H. 7 Ivp 2r)4 ; llmciirth v. Hmrarth, 11 1'. 1). !l.") ; and Tiliuij v. 
 Stiinstielil, W. N. 188(», 77. 
 
 Service of notice made on the clerk of a solicitor at his othce, his residence 
 nut lieiujf known, was held t( lie i^'ood service, liiit, notwithstan(liii);. the order 
 Wivs stayed for a week, and notice thereof directeil to lie t-erved on thes(dicitor: 
 
 'filiii'!/ v. Sliiiis/it'lil, xn/irii. 
 
 .Vm iiiterlcKnitory order, under Itnlr 1131, it si'i/., niay 1k^ enforced liy attach- 
 ment : lliiiihiiisiiii V. Uiiiiiiiiiiit, W. N. 1S77, 2'.l. J5iit a judpineiit or order, 
 under those Rdira or otherwise, if it lie for the payment of money into Court, 
 cannot Ik- enforced by attachment. 
 
 An order should be drawn up and entered before beinj? enforced by process : 
 Ikllafd V. Tiwiliiisiiii, 48 L. T. N. S. 515. 
 
 On a motion to coniinit for contempt, an attachment may issue : J'ijin- v. 
 /''/''■/•. W. X. 187ti, 202; but on a motion for an attachment an order to 
 cumniit caiiuoc l.'c obtained ex iiiirff : liiiist v. Jiiiiliir, 43 L. T. X. S. 432; 2') 
 
 w.K.in. 
 
 .\ writ of attachment may be issued against a party out of the jurisdiction, 
 tlioiigli it can only be enforci^d in the event of his coming within the jurisdic- 
 tiuli : niimmjielil v. Brmikc, ti 1'. K. 204. 
 
 No iiarticular return day is inserted in the writ (see form No. 104), but after 
 a reasoimlile interval a return may l>e reiiuirecl : Owen v. I'ritchiinl, W. N. 
 
 i'*;ii, 147. 
 
 The uliicer charged with the execution of the writ may break open the outer 
 •li^'iof the house in order to execute it : Ihiiiri/ v. llai'cei/, 20 Ch. 1). 044. 
 
 1L 
 
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 Issue and 
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 attach- 
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 WEBSTER, N.Y. 14580 
 
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 ^2 
 
 716 ENFORCEMENT OF JUDGMENTS AND ORDERS. 
 
 Rules A further opportunity to comply witli the order may be given, or the order 
 
 880, 88L may be stayed, i)onding an api)eai, in the discretion of the Judge : Mellory 
 Th'ompso),,'\V. N. 1883, 128. 
 
 A person attached for misconduct will not be detained for costs : JuchoD v, 
 Mawbi/, 1 Ch. D. 80; see also I'jiii of Lewes v. Harnett, (5 Ch. D. 252; and 
 Mk'.'etliwaite v. Fletcher, 27 W. R. 793. But, in order to punish anyone wlio 
 •>■ J 1 r. been guilty of a contempt, he may be imprisoned for a stated ix'riod. 
 a.'. 1 T,llo'.*'ed to be discharged if he pays .,he costs before the expiration of such 
 period : Harris v. Meyers, 1 Chy. (Jh. 229 ; see also Marris v. Imjnm V/, 
 
 ■)nt aCiain^t the President of a Company is not an available i)roce«l- 
 "H in performing an act which he could not by liiniself jierfonn, 
 „()u'.d only be i)erfonned by a majority of the iioard of Directors: 
 . MiiUiijid Rii. Co., 10 P. R. 82. Sequestration is not the proijcr 
 ' disobedience to a mandatiuis : Jf>. 
 
 C'l. D, 
 
 At.' .P 
 ilia i " 
 'ml • 
 JJer,to :.{•!. 
 remef'y f- 
 
 As to attacliing a Member of Parliament, see lie Aii'/lo-French V(Mipemlice 
 »-(•., 14 Ch. 1). 533. 
 
 On a motion tor attachment for contempt in committing a breach of under- 
 taking contained in an order, a ])reliniinary objection was raised that the 
 ))roi)er remedy was committal. The objection was allowed and the; |)laintitf 
 given leave to amend his notice of motion and serve it again : Cdllnw v. ynini'f, 
 .5(i L. T. N. S. 147 ; 5(» L. J. Chy. (J90. The distinction between attichment 
 and committal still exists, "("ommittal was the i)ro))er remedy for doing a 
 |)rohibited act and attachment was the jirojier remedy for neglecting to do 
 something ordered to be done": lb. See also Harvey v. Harrni,i\)V\\.\), 
 644, (i54. 
 
 Where an attachment issued against a defendant for not coin]>lying with an 
 order for discovery and compliance was then made, but the defendant was never- 
 theless thereafter arrested, it was held that the arrest was irregular and tliat 
 it was the duty of the plaintiff's solicitor to have stayed the enforcement of the 
 attachment : Oay v. Hancock, 40 L. T. N. S. 207. 
 
 Attach- 
 ment for 
 non-per- 
 formauce 
 of au act. 
 
 HHO. If a person who is ordered, otherwise than by an 
 order of course, to do any act other than to pay money, in 
 a limited time, refuses or neglects to obey the judgment or 
 order, according to the exigency thereof, the party prose- 
 cuting the same shall be entitled to a writ or writs of 
 attachment against the disobedient party. Chy. 0. 288. 
 
 A writ of attachment cannot issue as of course, becau.,e under the preceding 
 Rule 879 no such writ is to issue without au order to be applied for on notice; 
 Thomas v. Palin, 21 Ch. D. 3(J0 : 57 L. T. N. S. 207. 
 
 Upon at- 
 tachniout 
 of contem- 
 nor. 
 
 Sequestra- 
 tiou may 
 issue ou 
 praecipe. 
 
 HHl, In case a person is, under tlie preceding Eule, 
 taken or detainev^ in custody under a writ of attachment, 
 without obeying the judgment or order, then upon the 
 sheriff's return that the person has been so taken or 
 detained, the party prosecuting the judgment or order shall 
 be entitled, upon pro'cipe, to a commission of sequestration 
 against the estate and effects of the disobedient party. 
 Chy. 0. 289. 
 
 Sequestration.— Originally the writ of seqnestrati(m was thelast preropative 
 process, issued out of the Court of Chancery, for the purpose of enforcini.' 
 ob«'dience to its decrees. The right of the Court of Chancery to issue siicli 
 writs, was at first contested by the Common Law Courts, on the gruuiid tlwt 
 
R8. 
 
 ven, or the order 
 Judge : Melhr v, 
 
 coats : Jackson v. 
 Cli. 1). 252 ; and 
 inish anyone wlio 
 ir a stated \m\u(\. 
 ■xiiiration of such 
 ;'(,s- V. Jtiijmm, 13 
 
 available proceed- 
 
 himself perffinn, 
 
 )ard of Directors: 
 
 is not the proper 
 
 '""rench Co-operatire 
 
 a breach of under- 
 as raised tlmt tlie 
 (1 and the plaintitf 
 
 : I'lilhiv^ V. Ynnii'i, 
 itween attachment 
 jmedy for doing a 
 r neglecting to do 
 
 //((/■rey, 26Ch. D. 
 
 coin|)lying with an 
 'fendant was never- 
 irregular and that 
 enforcement of the 
 
 ise than by an 
 pay money, in 
 le judgment or 
 e party prose- 
 it or writs of 
 Chy. 0. 288. 
 
 inder the preceding 
 )lied for on notice: 
 
 receding Rule, 
 of attachment, 
 then upon the 
 so taken or 
 it or order shall 
 )f sequestration 
 obedient party. 
 
 ATTACHMENT AND SEQUESTRATION. 
 
 717 
 
 the last prerofrative 
 )uriiose of enforcni^r 
 mcerv to issue swii 
 
 on the ground that 
 
 the Court of Chancery could not enforce its decrees by process in rem, but only Rule 881. 
 in persmain. And it was even ruled at law, that to kill a secjuestrator in the 
 execution of sucli process was no murder. But the authority of the Court 
 t() issue such writs was ultimately established, in spite of the "blo(xly and 
 desi)erate resolutions" of the common lawyers. See Gilbert's Chy. Pr. 77. 
 
 A sequestration is in " the nature of a grand distress." It is a process of "A grand 
 contempt in rem: Tatham v. Parker, 1 Sni. & G-. .500 ; (see, however, observa- distress." 
 tions of Spragge, C, Meyers v. Metiers, 21 Gr. 216,) and may be issued to 
 enforce either an interlocutory order, or a final juflgment. It affects the uinds per- 
 wrsonal estate, and the rents and profits of the realty, of the person whose sonalty, 
 estate is sequestered: Jacksun v. Jackson, 1 Chy. Ch. 11.5; but it does not and rents 
 apiwar to bind the land itself : Hade v. Urcinhill, 1 Dick 107 ; in Metiers v. ^l^igl*}?"'^ 
 J/(//fcs, 19 tir. 191, Mowa-, V.-C, expressed the opinion, that under 5 (ieo. 2, ^' 
 
 c. i, s. 4, in Ontario, lands were bound l)y the writ of sequestration from the 
 time of its delivery to the sequestrator ; and that the Court might order a sale From date 
 of sequestered lands ; but the full Court were of opinion that lands could not "■ ^^^JI^^' 
 be sold under a secpiestration : H. C. 21 Gr. at p. 218. Accoi-ding to English '"■ 
 authorities, it is said that the writ binds from its date, and not merely from its 
 execution : ISirnlett v. /iockley, 1 Vern. 58 ; but see Awjel v. Smith, 9 Ves. 330 ; 
 Ikrri^ V. Mqicrs, 3Chy. Ch. 107. 
 
 The writ of se([uestration has been shorn of much of its original efficacy by 
 the enlarged operation given here to the ,/('. fa. goods. It is now only to be 
 employed as a last resource. Tile fi. fa, goods and i)roceedings for attaching 
 debts, etc., are first to be used, and if by these the debtor's property cannot be 
 readied, a writ of sequestration may be issued on application in Chambers, 
 upon notice as a general rule, but it will in general only be granted when the 
 delitor's lands are insufficient to satisfy the debt, and it therefore Viecomes of 
 iiniKirtancB to enter iqion the land and realize the profits thereof during the 
 year which must elajise tiefore they can be sold under a fi. fa. lands, or whei'e 
 the interest of the debtor is such that it cannot be t.aken under a,fi. fa. : Nelson 
 V. Ni'hi'ii, (i V, K. 194. The Court has however iiower to order a sequestration 
 instead of a. ft', fa., if occasion should require (ib.) See note to Hiilc 883. 
 
 Where it was shown that .a debtor had no effects which would be available 
 in execution, a writ of sequestration was granted to enforce payment of costs 
 wiiicli had been ordered to be paid : Snow v. Bel ton, \V. N. 1883, 73. 
 
 It is not necessary here to serve the judgment or order for payment, or a 
 deinaiul thereunder, as a condition precedent to an application for a sequestra- 
 tion ; Lowi V. Loiiij, G P. K. 137. 
 
 Fonnerly tlie writ could in no case issue except under special order. Bide Writ may 
 Wl makes an exce))ti<m to this rule, where the iiarty is in actual custody for issue with- 
 oimteniiit, without obeying the judgment, or order, sought to be enforced. In ""* oi'der, 
 such cases the writ may be obtained on pracipc, \\\nn\ filing the sheriff's return. fy,,^,io^'iQ" 
 
 .\ sequestration to enforce compliance by a Railway Co. with a perenqitory custody, 
 inaiidaiiius was refuseil, and an attachment .igainst the directors was held to 
 lie tile proper remedy: Jjemorest v. Mid/and, 11. IT. t'o,, 10 P. K. 82; but see 
 
 Proparty Liable to Sequestration— All goods, and chattels, in the iiossession 
 iif the couteinnor, are liable to be seized ; and also any property belonging to 
 him, which can be reached by the sequestrator without suit, or acti(m. And if 
 tiie iieys are denied him, the sequestrator may o])en rooms, and boxes, that are 
 locked, and sciiedide the contents; but may not remove ])ro])ertv ofl" the jire- 
 imses without the special order of the Court : I'eUiam v. \ci'raMle,:A'^w. 290 n. 
 A debtor's seat in the Htixjk Exchange is not exigible under sequestrati(m : 
 Lwkm ,(• VimidiaH L. A.- A. Co. v. M<.rphii, 10 Out. 80. By the Imperial 
 statute 11 (ii'o. 4. & 1 \Vm. 4. c. 3(), s. 15, r. 10, sequestrators have the 
 same power over documents in the ciistadi/ of a ])erson committed for not 
 dehvering tiieni, or depositing them in Court, as they have over the con- 
 temiiors own proiierty. This provision is incorporated into the law of this 
 Irovmce by K. ,S. (). c. 44, ss. 21-23. 
 
 Choses ix Action. — Atone time it was doubted whether choses in action Choses in 
 coukl be reached by sequestration ; the later authorities establish that they action, liow 
 
 far bouud. 
 
 Property 
 lial)le I 
 Koods and 
 cliattels. 
 
 Documents 
 in custody 
 of coutom- 
 nor. 
 

 718 
 
 Rule 881. 
 
 How re- 
 covered 
 under. 
 
 rensiona 
 atid sala- 
 ries, 
 
 Rents and 
 profits of 
 realty 
 bound, but 
 land not 
 saleable 
 under. 
 Tenants to 
 be notified. 
 Order 
 against. 
 
 Paying 
 rents 
 after at- 
 tornment. 
 Lease by 
 sequestra- 
 tor. 
 
 Disposition 
 of property 
 seques- 
 tered. 
 
 ENFORCEMENT OF JUDGMENTS AND ORDERS. 
 
 can : Irriivj v. li'ijid, 15 (Jr. IT)? ; and see ^fcf)oH■cll v. Mcl)( }''4I, 1 Cliv 
 Oil. 14(» : M7/.sv>/( V. Mvtadfr, 1 Beav. 2(13; Cn.s/iin v. Cmn iim, Jj. K. 1 p, &_\j| 
 (!22. As rej^anls rlmsi'n in ( c/l'Oi. uii order of the Court is necessary, to cnnlilc 
 tlie .sequeistnitors to sue for their recovery: Jrriii;/ v. /ini/d, 15 (ir. 157; or thny 
 nuiy ))e rc'iiched l)y motion in tlie nction in wliich the sefiuestratimi issuerl: 
 in'el\'(tf(( V. Jiiiiit/i, L. K. 14 Eq. 1!»0 ; Kc parte ydsirn, Id: I/oare, 14Ch. I), 
 
 But the r/iimi' in nction is not Viound by the writ o. sequestration, until eitlur 
 the .sequestrator, or the ])artv prosecuting it, take ste|)s to ol)t;iin liaviiiwit' 
 MclUnvi'll V. McDun-ell, 1 Chy. Cii. 14(t ; 10 U. C. L. J. 4S; Lu,uh„ mu'l 
 Canadian L'lan and .{(/enci/ Co. v. Merrilt, .32 C. P. 375. 
 
 If the delitor admits the lialtility, and submits to the order of the Court, nii 
 order may Ije niiide, without fiirtlier suit, aiitiiorizing the debtor to jiay, and 
 deliver, the fund, or ))r()i)erty, to tlie se<niestratc)r ; or authorizinf,' the latter to 
 seize the property : M7/,s()» v. Mi'lcalfr, 1 Beav. 2(>3 ; lie Slade, Shall- \, IIhIhk 
 18 Ch. 1>. (553, lb L. T. X. S. 270; '('r/.s7»')i v. Vinnnno, 1 L. E. P. & M. (;22. 
 But such order cannot be made without the debtor's assent : //'. 
 
 A claim to indenuiity, which a surety has against his principal, before 
 jiayment by the siu-ety, is not a clinsc in actian, wliich can be reached by 
 secpiestration : Irrin;/ v. /!i>i/d, 15 Gr. 15". 
 
 The accrued dividend of a fund in Court, to the income of which a married 
 woman is entitled for her separate use without power of anticiiiabion ; CUhiiIm 
 V. Finch, L. R. 15 V,(\. 2G(i ; Bri/rint v. Hull, 10 Ch. D. 153 ; a deixjsit on 
 appeal: Conn v. (•ttrlawl, L. II. !) Chy. 101; and a rent charge: H7/«oii v, 
 Metcalfe, 1 Beav. 203, have been held liable to secpiestiation. 
 
 Pknhion's, AM) S.VLAUIEH. — Pensions granted entirely for ])ast services, niav 
 be sequestered : Wdlcock v. TerreU, 3 Ex. 1). 323 ; Dent v. Dent, 1 L. R. P. k 
 M. 30() ; MrCarthii v. (loold, 1 Ba. & B. 387 ; but j tensions and salaries for 
 services, still being rendered, or which niay be required in fntiirn, caniuit be 
 sequestered : Fenton v. Lowther, 1 Cox 315 ; McCartliy v. (Joold, snjira ; Vdllyr 
 V. Fallon, 1 T. & R. 45!) ; Spooner v. Payne, 1 D. M. & G. 383; and seei%/ 
 V. Cheetham, 3 (iiff. 171. 
 
 Rents, and Pkofits, of Rkal Estate, including crops, or other natural 
 ])roduce, or rents paid iu kind, are liable to secpiestration, but land, wlietiier 
 freehold, or leasehold, cannot be sold under the writ, which only confers a, 
 right to the possession, but does not transfer any title to the land, or term, to 
 the setpiestrator : Shaw v. II riijht, 3 Ves. 22 ; or confer any jtriority over prior 
 sjjecific charges : Mci/ei\i v. Myers, 20 dr. 185; 21 (4r. 214. Tenants ii: 
 possession should be notified to attorn to the sequestrator, and pay their 
 arrears, and growing rents, to him: Danl. Pr. 5th ed. !ll(i ; and u))on refusal, the 
 sequestrator may obtain an order compelling them to attorn : Rmcleij v, 
 liidley, 3 Sw. .30() ; Jackson v. Jackson 1 Chy. Gh. 11.5. 
 
 If a tenant attorns to the sequestrator, and afterwards ))ays liis rent to 
 another party, he may be compelled to pay it over again to the sequestrator: 
 I/arris v. Mei/ei's, 2 Chy. Ch. 121. A secpiestrator, with the sanction cf the 
 Court, can make lea-ses, for any period during which the aggregate rent*, 
 will not exceed the amount for which the sequestration issued : Jlnrns v, 
 Mei/ers, 3 Chy. ('li. 8;). But the sequestrator caimot, by his lease, affect the 
 rigiit of a person holding an incumbrance jtrior to the claim of the party 
 issuing the .se(iuestration : Mei/er.i v. Meyers, 19 Gr. ,541. 
 
 Disposition of Proparty Seciuestared. — Prima facie a sequestration confers 
 merely a right of detainer of the property sequestered. Where the seques- 
 tration, however, is issued for non-payment of money, the jtroceetls of the 
 goods seized will be ordered to be applied in satlsrfiiction of tiie deinann: 
 ]><(ris V. /tavis, 2 Atk. 24. The sequestrator should not, however, .so a\'\")' 
 them, but should pay the proceeds into Court uptjn leave obtained on motion 
 in Chambers : Uanl. Pr. 5th ed. 917. 
 
 Tlie Court may, at the instance of the sequestrator, order payment into 
 Court of the balaiice standing in a banker's books to the credit of the debtor 
 upon notice to the banker : Miller v. Iluddlestone, 22 Ch. D. 233. 
 
RS. 
 
 [cihiivu, 1 riiv. 
 
 , L. R. IP. &Ni. 
 
 ct'Hsary, to vnMv 
 
 I (ir. l:" ; (ir tliHv 
 
 lestviitioii issuf'l; 
 
 ;/r«'/v, 14Ch. I). 
 
 atioii, until eitliw 
 obtain iiayilit'iit: 
 48; Liiiiikni itii'l 
 
 ■r of the Court, an 
 obtm' to jwy, and 
 riziiiK tlif latter to 
 /(■, Sliiilr V, llidm; 
 .. K. P. & M. (ffi. 
 
 4 prinoijial, before 
 jaii lie reached by 
 
 of which a married 
 iciiiation ; CIuihIm 
 153 ; a dej^sit on 
 charge: ll'iVsoii v. 
 I. 
 
 ■ past services, may 
 Dent, 1 L. K. P. k 
 .ns aiirl salaries for 
 i( futnro, caniKit lie 
 (/()/(/, sKpra ; i'Mpf 
 383 ; and see IHl 
 
 s, or other natural 
 
 bnt land, whether 
 
 liich only confers a 
 
 \v'. land, or term, tn 
 
 l)riority nverimm- 
 
 214. Tenants ill 
 
 tor, and pay their 
 
 uuhipon refusal, tlie 
 
 attorn : Ryvl^H ''■ 
 
 ■Ah pays his rent to 
 to the seciuestrator; 
 th(3 sanction (>f the 
 he aggregate rents, 
 II issued: Ihrns s. 
 his lease, affect the 
 . claim (Jf the pavty 
 
 equ(!stration confeB 
 
 Where the seqnes- 
 
 the proceeds of the 
 
 ■Ann of the demand: 
 
 howeviT, so ai'l'i)' 
 
 obtained on motion 
 
 order payinent into 
 credit of the debtoi 
 D. 233. 
 
 ATTACHMENT AND SEQUESTRATION. 
 
 Sai.k ok Phoi'KKTV. — Where necessary, a sale of personal jiroperty seques- 
 tered, may, on the apidication of the secpicstrator, be ordered, f.ij,, wlu're goods 
 are of a in'risl\able nature : S/xav v. Wri'jht, 3 Ves. 22 ; or it is necessary 
 for tlie satisfaction of the chiini for which the writ issued : ll> ; MUrhi'll 
 V. Iirnjii'i; !t Ves. 208 ; a (lefe.idant's reversionary interest in .i fund in 
 Coiu't, has been ordered to be .sold: (,'iiir/ifr v. Tai/lar, 1(» Sim. 314. The 
 application for leave to sell must be niachi on notice to the debtor : Mitchell 
 V. I)rii)ici; .•iiiiirti ; Fnrhrs v. ('niuiol/i/, 1 Chy. Ch. (5 ; but service of notice may 
 be dispensed witii : Br Rii.sli, lit V,'. R. 417. 
 
 According to tlie dicliini of jVlowat, V.-C, in Mei/ers v. Meijers, 19 Gr. 18,5, 
 setiuestered land may now be on'ered to be sold, a.s well as goods and chattels; 
 but the full Court in Mciievi* v. Jfciicrs, 21 Gr. at p. 218, expressed the contrary 
 opinion, and stated that "all that the Cvuirt does is to direct tlie applicati(jn of 
 the rents and profits, and tiiis, not by way of execution, but upon the ground 
 that the i)arty is in contempt for disobedience of some order of tin; Court." 
 See also Xflsiiii v. Xelnon, (i P. R. 104. 
 
 Adverse Claims. — Where pro^ierty affected by a sequestration, or any interest 
 therein, is claimed by some third person, the sequestrator, and possibly the 
 claimant, may apjily to the Court for relief, by a summary application in the 
 cjuse ; see Rule 1141 et scq. 
 
 The claimant should not commence an action against the sequestrator, or 
 disturli his i)ossession without the leave of the Court. If he do .so, he may be 
 restrained by injunction. 
 
 Obstkuctiox ok Skquesthator, is a contempt of Court : Angel v. Smit/i, 
 Ves. 33.5 ; I'elham v. Xeirca.itic, 3 Sw. 28!t n, and see Franckl.i/n v. Collioun,^ 
 Sw. 27(5. But ])ersons having claims on the proi)erty sequestered, adverse to 
 the sequestratoi, are not driven to bring actions, but may apply to the Court 
 for relief in a summary way upon i)etition in the action; and see Meyers v. 
 Mei/ers, 1!) (Ir. 541. 
 
 Daatb of Contemnor. — Where a sequestration has issued to compel ])ayment 
 of money, in case tiie contemnor die, an order may be obtained to continue pro- 
 ceedings against hi.s real representative, where the lands descended, or devi.sed, 
 would be assets f the payment of the debt : lli/ile v. (Irecnhill, 1 Dick, 107 ; 
 but where the writ issues for jiersonal contempt, on the part of the contemnor, 
 on the death of the contemnor, no order to continue proceedings can be 
 obtained : Tueleif v. Meyers, 3 Chy. Ch. 102 ; (Gilbert's Ciiy. Pr. 80-87 ; except 
 ftrlmps for the costs : see Rule 030. 
 
 SS2. If an attachment cannot be executed against the 
 person refusing or neglecting to obey the judgment or order, 
 by reason of his being out of the jurisdiction of the Court, 
 or of his having absconded, or that with due diligence he 
 cannot be found, or if in any other case the Court may 
 think proper to dispense with a writ of attachment, an order 
 may be granted for a commission of sequestration against 
 the estate and effects of the disobedient person ; and it shall 
 not be necessary for that purpose to sue out an attachment. 
 -SwChy. 0. 290. 
 
 An order for sequestration will not lie granted against a defendant recjuired 
 to do an act, where an ai)])eal is jjending from the judgment directing its 
 performance, and the defendant has perfected the security required by the 
 Order of the appellate Court, entitling him to a stay of proceedings : /hnidns 
 V. lliwultun ,(■ MilluH 11. Oc, l!l Gr. 455 ; Mcdarvey v. Strathroii, Out. 138. 
 
 Originally the sequestration only issued after an attachment, and all other 
 process had been (^\hausted. Uiider this Ridr in cases where it would be 
 iimxjssible to execute an attachment, it is unnecessary to go through the form 
 01 issuing one ; and see .Swnv v. liulton, W. N. 1881, 73. 
 
 719 
 
 Rule 882. 
 
 Sale, when 
 ordered. 
 
 Notice of 
 application 
 for sale 
 must be 
 given to 
 debtor. 
 
 Parties 
 having 
 claims ad- 
 verse to 
 sequestra- 
 tion — pro- 
 ceedings 
 by. 
 
 Obstruc- 
 tion of se- 
 questrator 
 a con- 
 tempt. 
 
 Death of 
 contemnor;: 
 wljen pro- 
 ceedings 
 may bo 
 continued 
 against his- 
 represou- 
 tatives. 
 
 Where at- 
 tachment 
 cannot be 
 executed, 
 etc. 
 
 Sequestra- 
 tion pend- 
 ing appeal. 
 
 Attach- 
 ment need 
 not issue to 
 found 
 sequostra- 
 Uen> 
 
! , ii 
 
 lifM 
 
 720 
 
 Rules 
 883-886. 
 
 Sequestra- 
 tion may 
 issue for 
 default in 
 liayiueut of 
 money, on 
 apiilication 
 in Cham- 
 bers. 
 
 Sequestra- 
 tion, when 
 granted to 
 enforce 
 payment of 
 money de- 
 mand. 
 
 ENFORCEMENT OF JUDGMENTS AND 0RDEK8, 
 
 An attachment may be ordered again.st a party who ia out of the jurisdiction: 
 Bliiowjicld V. linnike, G P. R. 2G-J, and see Faicwell v. Wallbriilijc, 3 (ir. 028. 
 
 A writ of sequestration was issued against a ])erson of unsound mind in 
 Jiiibinmm v. O'allaiul, W. N. 1880, 108 ; 37 W. R. G'J7. 
 
 HHti. If a person who is ordered to pay money, neglects 
 to obey the judgment or order according to the exigency 
 thereof, the party prosecuting the same, may, at the expira- 
 tion of the time limited for the performance thereof, apply 
 in Chambers for a writ of sequestration against the default- 
 ing party, and upon proof of due service of a notice of the 
 motion, unless the Court thinks proper to dispense with 
 such service, and upon proof by afitidavit of such other 
 matters, if any, as the Court requires, th" Court may order 
 a writ of sequestration to issue. Chy. (' :^91. 
 
 Where a writ of sequestration is sought, to enforce the payment of money, 
 imless some special ground is made for ])roceeding <'.'■ pi(r/i\ notice of niotidn 
 must be given ; and the ordinary procethire for recovering money demands, 
 viz. : writs of, /!../'«. etc., and attachment of debts, .should be first resorted to, 
 or sliewn to be unavailing : Xdmiii v. .Vds ,>i, (i P. R. 1!)4 ; but sei' Jli' /tiasiil, 
 Jiiifiu't v. Allcii, before t^pragge, C, January 24, ]87(!, where the writ of seriues- 
 tration was granted without .such i)reliminary la-oceedings ; and .see Smir\. 
 Boltnn, W. N. 1881, 73 where the sefpiestration was granted on it being sliowu 
 that the debtor had no effects e.xigible under execution. 
 
 An order for i)ayment of money need not be personally served in order to 
 found a motion for a secpiestration : Lumj v. Lomj, G P. H. 137. 
 
 The writ cannot properly be issued, to enforce an ordinary judgment for the 
 recovery of money, wiiich does not exi>ressly order ])aynient, or limit a, time 
 therefor : Ldiidan and CaiKidinn L. <t' .1. Co. v. Mervitt, 32 C. P. 37;") ; K'' parte 
 .yel.snii, RcHoxre, 14 Ch. 1). 41. 
 
 ^i^i4. Commissions of sequestration ai*e to be directed to 
 
 Chy. 0. 21)2. 
 
 Comniis- 
 
 sequestra- the Sheriff, unless otherwise ordered. 
 
 tion to lie 
 
 directed to For form of writ see App. Form No. 109. 
 
 Sheriff. ^ ' 
 
 E.xecution 
 within six 
 years. 
 
 8. Issue and Form of Writ. 
 
 <SN5, As between the original parties to a jud|mient, 
 execution may issue at any time within 6 years from the 
 recovery of the judgment. J. A. lUile 355. 
 
 This is identical with the Eng. R. 1H7.5, O. 42, r. IS (1883 R. 600), and is in 
 substance the same as R. S. O. 1877, c. .'jO, s. 322. 
 
 (larnishee process is not a form of execution within Exde 8r)8 so as to m 
 subject to Rules 885, and 88G : Fellows v. Thornton, 14 il B. D. 33.'). 
 
 Execution HHH, (a) Where 6 years have elapsed since the jiulgmeiit, 
 
 bv leave of ,,,,-, ^ -, , '■ i i i Inn 
 
 Court. or the date of the order, or where any change lias tasen 
 place by death or otherwise in the parties entitled or liable 
 to execution ; 
 
B. 
 
 EXECUTION. 
 
 721 
 
 lie jurisdiction; 
 /(', 3 Gr. 028. 
 isound mind in 
 
 ley, neglects 
 he exigency 
 t the expira- 
 lereof, apply 
 the default- 
 notice of the 
 ispense with 
 :' such other 
 it may order 
 
 ^•nient of money, 
 uotici' of motion 
 nidiu'V demands, 
 first resorted to, 
 It see /''■ liK-fi'dl, 
 he writ of seques- 
 and see .S'"')"' v. 
 ;in it being shown 
 
 served in order to 
 37. 
 
 judgment for the 
 
 t, or limit a time 
 
 P. 37.") ; A'.f j/orte 
 
 he directed to 
 ). 2i)2. 
 
 ) a judi'inent, 
 ears from the 
 
 3 II. 600), and is in 
 
 ,lr $:>» so a.s to !» 
 ,. D. 33."). 
 
 the judgment, 
 ,n(ve has tal^en 
 itiUed or Uable 
 
 (/;) Where a hushand is entitled or liable to execution Rule 886. 
 upon f". judgment or order for or against his wife ; 
 
 [c) \Vhere a party is entitled to execution upon a judg- 
 ment of assets iufuturo ; 
 
 the party alleging himself to be entitled to execution may 
 apply to the Court or a Judge for leave to issue execution 
 accordingly. And such Court or Judge, if satisfied that the 
 party so applying is entitled to issue execution, may make 
 an order to that effect, or may order that any issue or ques- 
 tion necessary to determine the rights of the parties, shall 
 be tried in any of the ways in which any question in an 
 action may be tried. And in either case puch Court or " 
 Judge may impose such terms as to costs or otherwise, as 
 shall seem just. J. A. Rule oo6. 
 
 Same as the Eng. R. 1S7.^>, O. 42, r. 111. 
 
 Rule fiOl of tlie Kng. Rult's, 1SM3, iiicii!,-les the further case of a party entitled 
 to execution ajjfaiust any of tlie siiarehol.ler.s in a joint-stoek coniiiany ui)()n a 
 judgment against the company. Previously a writ of scire fucias \va.s neces- 
 sary, and in Out. Rule SS7 will prohahly apply in such case. 
 
 The practice at Common Law in re\iving iiecuuiary judgments for the 
 purpose of (!xecuti<m, after the la))se of six years, or the death of jiarties, was 
 formerly governed by C. L. P. Act, K. S. ()'. 1S77, c. .50, ss. .322 to 330 (oorres- 
 poiiding with Kng. 0. L. P. Act, s. 128, <-t "ni.) Under those ))rovisionM the 
 party seeking execution could apiily to the fJourt or a Judge for leave to enter 
 a suggestion to the effect that such party was shown to be entitled to execution, 
 and to allow execution to issue, and, if the case was made clear, the suggestion 
 and the consequent execution we/e allowe<l. Tf the case was not made clear, 
 the suggestion and e.icecution c()i.«e()uent upon it were disallowed, and the part)' 
 was left to his writ of revivor. This w.as a new action, in which by the 
 ordinary i)rocesses of pleadii g the questions in dispute were brought to issue 
 and decided. 
 
 The above Rule pre.servea alternative processes, according as the right to 
 execution is, or is not, sufficiently clear to l)e enforced summarily by a Judge ; 
 but a somewhat simpler process in provided; if the case be clear, the Judge 
 may order execution to issue ; if it be not, he ma" viirect an issue to trj' the 
 ri)tht. 
 
 Where judgment is obtained by several executor.s and one of them dies after 
 the eiitering of judgnient, tliere is no "change " of parties within the meaning 
 of this Ritle. The surviving plaintiffs are entitled to issu(> execution in the 
 name of all, and no order for leave to do so is necessary : Haird v. Thoiupnon, 
 14 L. R. Tr. 407. So also in the case of partners the action survives : Davits v. 
 Andrev!!,, 'H Sol. Jour. 411 ; W. N. 1884, 94. 
 
 Sucoe.ssors in title are not bound by a decree against their predece.ssors 
 restraining the continuance of a nuisance: Attt/.-Oen. v. Jiirmiwjhanx, etc., 
 Buard, 17 Ch. D. 085. 
 
 An application for leave to issue execution may be made c.r, parte; Mercer v. 
 Lawrence, 20 W. R. fjOO ; Limr/ht v. Mcdrnth, 7 L. R. Ir. .532 ; but the Court 
 or Judge may, if it seems proper, direct noticti to be .served. 
 
 Where writs had exiiired, leave was given, on notice to defendant, under this 
 ^i«f, to issue new writs to include the costs of the former ones, and the costs of 
 the motion : McDowjall v. MeDowjall, 3 C. L. T. 42. 
 
 »k po'nmon Law, after 20 years without payment, a presumption arises Period of 
 »n»t the judgment is satisfied : see Coke 2 Inst. 470, Mortimer v. Pimjott, 2 limitation. 
 
 J.A. 40 
 
 St. 
 
 '•^ 
 
 ^ 
 
 ^ 
 
 ^ 
 
722 ENFORCEMENT OF JUDGMENTS AND ORDERS. 
 
 Rules Dowl. 61.1. ]5ut tliis invsuinption may hv rebutted: Wil/iiimn v. ]]''>leh,$ 
 
 887-889, 1>. it L., ;")();"), and jjosnihly does iidt arise where execution has never Ijcc n issued: 
 see Jinkinn v. Kirhii, 2 G. L. J. 1()4. 
 
 As to the period of liuiitption for enforcing a judgment, and wiictlier the 
 limitation a)>i)lies to proceedings under this Rule : see hnicc v. (y/.cKiii, 3 Out, 
 App. 1(17; (-'((s/i/n- V. Kciichic, 11 U. C. C^. li. (iOl ; McDouuld \. Elliott, \2 
 Ont. 1»K; MdcdoiHitd v. McLonahl, 11 Out. 1!K), and McCidlowjh v. .Snka.W 
 V. R. 337. 
 
 Leave to issue execution was given where a judgment recovered in 1850 was 
 revived in 1869, twenty years not having ehipsed ; McCullowjh v. Siikcs, 11 
 P. R. 337. 
 
 In case of HH'T* In cRses other than those mentioned in Eule 885, 
 
 personsnot . i • i • ,• i i - • 
 
 parties. any pcrson, not being a party in an action, who obtauis any 
 order or in whose favour any order is made, shall be entitled 
 to enforce obedience to such order by the same process as 
 if he were a party to the action ; and any person not being 
 a party in an action, against whom obedience to any judg- 
 ment or order may be enforced, sha^'. be liable to the same 
 process for enforcing obedience to such judgment or order 
 as if he were a party to the action. J. A. Rule 358. 
 
 Same as the Eng. R. 187;"), O. 42, r. 21. The Eng. Rule of 1S83, R. 004, it 
 »l)plicable in the case of a "a cause or matter," and oorresponils with Chy. 0. 
 297. 
 
 See note to Hide 880. 
 
 Precipe for 
 writ. 
 
 Indorse- 
 ment of 
 name and 
 address. 
 
 88?*. No writ of execution shall be issued without the 
 party issuing it, or his solicitor, filing a j);v^c?jjc for tbat 
 purpose. Thej^rcecipe shall contain the title of the action, (a) 
 the date of the judgment, and of the o'-der, if any, directing 
 the execution to bq issued, the names of the parties against 
 whom, or of the firms against whose goods, the execution is 
 to be issued ; and shall be signed by or on behalf of the 
 solicitor of the party issuing it, or by the party issuing it if 
 he do so in person. The forms in Part VII. of the Appendix 
 hereto may be used, with such variations as circumstances 
 may require. J. A. Eule 847. 
 
 {a) The Eng. R. 187r), O. 42, r. 10, (18S.3, R. 590), has here the additional 
 words, " the reference to the record." The above Hide corresixinds otlierwise 
 with the English Rule as it now stands ; see Boltoa v. linltnn, 3 Ch. D. 270. 
 
 889. Every writ of execution shall be indorsed with the 
 name and place of abode or office of business of the Bolicitor 
 actually suing out the same ; and when the solicitor actually 
 suing out the writ sues out the same as agent for another 
 solicitor, the name and place of abode of such other solioitor 
 shall also be indorsed upon the writ ; and in case no solicitor 
 is employed to issue the writ, then it shall be indorsed with 
 
EXECUTION. 
 
 723 
 
 V. }\'ekh,S 
 ' been issued : 
 
 wlictlitT the 
 l.rtllir, 3 Out. 
 
 V. KHiott, 12 
 ft V. ,s7'^'''''i 11 
 
 A in 1856 wa» 
 i V. Siikn, 11 
 
 Eule 885, 
 ibtains any 
 be entitled 
 process as 
 1 not being 
 ) any judg- 
 the same 
 nt or order 
 358. 
 
 1883, R. 004, ii 
 s with Chy. 0. 
 
 witbout the 
 ipe for tbat 
 ,e action, [a) 
 ly, directing 
 ties against 
 execution is 
 jbalf of the 
 issuing it if 
 le Appendix 
 rcumstances 
 
 the iulditiimal 
 „m(ls otherwise 
 3 Ch. D. 270. 
 
 sed with the 
 tbe soUcitor 
 ;itor actually 
 , for another 
 tber solicitor 
 18 no solicitor 
 ndorsed with 
 
 a memorandum expressing that the same has been sued out Rule 890. 
 by the plaintiff or defendant in person, as the case may be, 
 mentioning the city, town or [{a) other place,] and also the 
 name of tne (b) street and number of the house of such 
 plaintiff's or defendant's residence, if any such there be. 
 J. A. Rule 348. 
 
 (rt) Instead of "other place" the Kng. R. 187'), O. 4^, r. 11, (1883, R. 591), 
 has the word " iiari.sh." 
 
 (/() Tiu! English Rule has here tlie additional word "hamlet." The two 
 Rules are otiierwise identical. 
 
 Where the Sheriff, being misled by an indorsement made on a writ by the 
 plaintiff's solicitor, seized the gi)ods of a wrong person, the plaintiff was held 
 iiahle in an action of trespass : Mufrin v. tSalbenj, 22 t^. li. D. (>14. See also 
 Smith V. Kmt, 1) C^. B. I). 340. 
 
 8!I0. Upon every execution there may be levied, in Poundage, 
 addition to the sum recovered by the judgment, the pound-®'"* 
 age, fees, expenses of execution and interest upon the 
 amount recovered. J. A. Rule 350. R. S. 0. c. 66, s. 44. 
 
 Identical with the Eng. R. 1875, O. 42, r. 13, (1883 R. 593), and to the 
 same effect as R. S. O. 1877, c. (if), s. 44. 
 
 The mere delivery of the writ, without an actual or virtual seizure, does not Poundage 
 entitle the Sheriff to poundage : yash v. Dickinson., L. R. 2 C. P. 252 ; Morris on Ji. fa, 
 V. Ilnultdn, 2 C. L. Cham. GO ; but the receipt of money by the Sheriff under a goods. 
 writ is a virtual execution of the writ though there is no actual seizure or sale : 
 Con.ihliilittnl Hank v. Bit-kford, 7 P. R. 172 ; liisnicks v. Jiatk Collier)/ Co., 2 
 Ex. I). 4.')il ; /i'.t' p. Lithi/oio, 10 Ch. D. 10!). Where there has been a seizure 
 the Sheriff is entitled to poundage, though tliere be no sale, if by compulsion 
 of the writ the debt is recovered (lirectly through the Sheriff : Mortimore v. 
 Crwj'j, 3 C. P. D. 210, r)verruling Roe v. JIamniond, 2 C. P. D. 300, or 
 indirectly l>y means of some compromise which is the consequence of the 
 seizure, sul)Ject to lii'lr 1233, Mortiimtrc v. Crwiij, supra ; Thumtin v. Cotton, 
 12 U. C. 12. B. 148; Oillrspie v. Shaw, 10 U. C. L. J. 100; McRoberts v. 
 HuihiHiin, 7 P. R. 95; Imt not wheri^ tlie writ is withdrawn by direction of 
 law : Moriimtire v. Cra;/;/, nupra ; Walker v. Fairtield, 8 C. P. 95 ; or where 
 before sale an order is made f( )r delivery fif the goods to a receiver : Re Ludford, 
 33 W. R. liVi; see 51 L. T. N. S. 240 ; Re Ludmore, 13 (,>. B. D. 415. 
 
 Where the money levied has to be restored to defendant in consequence'^of 
 some act of the plaintiff, the Sluu-iff may recover jioundage from the latter : 
 Hennj v. Cmmerciul Bunk, 17 U. C. Q. B. 104 ; see Morrison v. Taylor, 9 P. R. 
 390. 
 
 A Sheriff upon arresting a judgment debtor under ca. sn. thereby becomes at 
 once entitled as against execution creditors t(; full poundage on the amount of 
 the exeoition ; McXah v. O/ipcnheimrr, 11 P. R. 348. 
 
 The Sheriff is only entitled to poimdagc! on the sum paid over, not on what 
 he retains for himself : Micliie v. Rei/no/ds, 24 U. C. Q. B. 303. If he makes 
 part only by forc(>o[ the execution, the poundage is only on such part ; and if 
 a seizure is not followed by a sale by i-eason of satisfaction having been other- 
 wise obtained, and no m(mey is actually made by the Sheriff on or by force of 
 the execution, the poundage is only on the gvjods seized, and a Judge may on 
 api)licati()n award such less siun at may be reasonable : Rnle 1233, and see 
 Wadswniih V. Bell, 8 P. R. 478 ; Bowman v. Masson, 1 C. L. T. 109 ; Morrison 
 y. T,ii/h,r,<^ P. R. 390; Ilamilton, etc, v. Gore Hank, 20 Gr. 202 : Re Ludford, 
 ill L. T. N. S. 240. If no such aiiplication is made, the Sheriff would seem to 
 be entitled to full jjoundago on the goods seized : see Brockville, etc. v. Canada 
 Centml, 7 P. R. 372, 376. 
 
 2l 
 
\w 
 
 724 
 
 Rule 891. 
 
 PoundaRo 
 on Ji, fa. 
 lauds. 
 
 ^ 
 
 1 ■■ ■' '■ " 
 
 ^ 
 
 
 
 ' t2- 
 
 i 
 
 ISf liiilffll 
 
 i ^^i' 
 
 
 fe ... 0'>. 
 
 
 ■Ilii — «» 
 
 'H 
 
 W'- -- " 
 
 
 ^W .— 
 
 b^J[Q 
 
 1^: . 
 
 \\-'M.. »i^H 
 
 ^^■».s 
 
 
 ^■14 
 
 f ■■"' 
 
 iH 
 
 If 
 
 Inclorso- 
 ments on 
 writ. 
 
 ENFORCEMENT OF JUDOMKNTS AND ORDERS. 
 
 The SlicrifF was held entitled to |H)un(IuKe, on tliriMi weveml writs iHsucd liy 
 tlie same solicitor and placed in his iiaiids at tiie sanm time : (I rmil v. lliKn't 
 10 1'. U. 4<». 
 
 F(jr the i)ro[)er mode of compiitlntf poundage, sec- Flmnnij v. //e//, ii p. R. 
 311). 
 
 A Sheriff is not entitled to poiindajfe upon an execution u^rainst lands, iiiil«»n 
 there has l)een an actual sale: Mfrilai iiTx Hiiitt v. Ciiiii/iIk I/, ',i2 ('. J'. 170. 
 
 The plaintiff's solicitors arc not liulile to tlu^ Sheriff for his fees in the 
 absence of any contract, and no contract is implied from lodg-inf,' the writ in 
 the Sheriti"s ('.ttice : Jtoiilc v. linshi,, (i (^. |;. |). 171. 
 
 For tlu^ Fees to which Sheriffs are entitled, see Tariff C, infra. 
 
 Sin, Every writ of execution for the recovery of money 
 shall be indorsed with a direction to the sheriff, or other 
 officer or person to whom the writ is directed, to levy the 
 money really due and payable and soii{.?ht to be recovered 
 under the judgment, stating the amount, and also to levy 
 interest thereon, if sought to be recovered, at the rate of 6 
 per cent, per annum from the time when the judgment was 
 entered up ; provided that in cases where there is an agree- 
 ment between the parties that more than 6 per cent, interest 
 shall be secured by the judgment, then the indorsement 
 may be accordingly to levy the amount of interest so agreed. 
 J. A. Rule 351. 
 
 Same in efTect as Fn;,'. R. lS7r), (). 42, r. 1-1, (!«!«, 1{. 51)4), excejit tliut the 
 rate of interest therein nauK^d is four per cent, instead of .six, and [irovides for 
 tile case of money payable \mder a jiid^inent or onh'r. 
 
 It is not cpiite clear how far the last clause is intended to alter the fonner nilc 
 that a contract for i)ayment of a hij,'her rate of interest than six per ceti^. wl I'li 
 sued on, l)ecomes merged in the jtidKinent under which six iierceiit. only will iie 
 recoverable: .see St. John v. Hiikirt, 4 Out. Api.. L'lH. At all events, in the 
 absence of any agreement o|)erating sulisetpiently to judgment, iiuerest is limiteil 
 to six Der cent., though the debt on which the judgment was recovered bore a 
 higher rate: /■(; Kiimpcdn Cenlrnl Rj. Co., 4 Cli. J). 35; Kc p. Fi'Wi'iiij.s, 2") 
 Ch. I). 338. 
 
 In indorsing a writ to levy interest uixm the amount of the judgment, the 
 interest is to be computed from the day of i)ronouncing the judgment ; thiit, 
 and not the day of fonnal entry tiiereof, is the day from whicli the judgment 
 takes effect : iii(/(' 7<>4, and is, therefore, the day upon which it is entereii np 
 within the meaning of this /.')//(; Kthlur v. Mc(iihljot), 10 P. E. Sit ; see Huh 
 704, and McLinrii v. Ctiinnld Ccntrid there noted. 
 
 The date from which interest is to b(! computed has been further made clear 
 by sec. 88 of the Act. 
 
 As a general ruhs interest cannot be allowed on untaxed costs though awardeil 
 out of a fund in Court : UW v. IIV.s/, 17 L. K. Ir. 40. 
 
 Where costs of all parties of an action for the construction of a will were 
 ordered to be paid out of an estate and were taxed, but no estate wasavailalile 
 for their jjayment for five years, interest on the costs was not allowed out 
 of the estate : Archer v. Hevern, 12 P. R. 048. 
 
 Where an ai)i)eal is brought against a judgment, which is atHrmed on the 
 apyieal, interest is allowed for such time as execution is delayed by tliea])peal; 
 but where the i)laintilf refrained from entering judgment till after t'le ippeal, 
 the Court of Appeal on motion refused to order interest (m the verdict, leaving 
 the plamtiff to apjily to the Court below to enter judgment nunc pro tunc: 
 
EXECUTION. 
 
 725 
 
 its iHwicd by 
 //// V, (irmit, 
 
 llnll, !l 1". R. 
 
 liiiuls, unless 
 J. 1'. 1711. 
 s fi'cs ill the 
 ,' till' writ in 
 
 ,' ol' money 
 ty, 01' other 
 to levy the 
 i recovered 
 ilso to levy 
 le rate of 6 
 [foment was 
 s an agree- 
 'ut. interest 
 ndorsemeut 
 it so agreed. 
 
 >xcei)t that the 
 lul iivcividcs for 
 
 the fdniicr nil« 
 
 ).CVtvV,t "l"!! 
 
 ■lit. oiiiv wili'w 
 1 events, in the 
 iterest is liiiiiteil 
 (.covered Imre a 
 ■ ji. Frfiii:/.-:, -•") 
 
 e judf-'iiient, the 
 jud^jiiient ; that, 
 A\ the.iud;,'llielit 
 1 it is entered "ji 
 K. 8'.1 ; see A'Hii' 
 
 irthcr made clear 
 
 , though awarded 
 
 .,„ of a will WTH 
 
 ■iite was avadalile 
 
 not allowed out 
 
 s -MnwA on the 
 ed by the appeal ; 
 1 aftcT the ippeal. 
 ,e verdict, leaving 
 it nunc pro tunc: 
 
 MeEimii v. McLcod, 10 Out. \i>\>. 'M\ ; sec St. John v. li'/krrt, 10 H. C. R. 278 ; Rules 
 20 C. L. J. •247. 892-894. 
 
 Interest on costs runs from the date of the certiticate of taxation, that beiiijf 
 the date ^;iven in the form of writ No. 17.") ill the App. : .Srhranli r v. Clcwih, 
 4(J L. .1. (!. 1". ;<l')."); Triailii Cnlliiii- v. Hill, M Out. L'.Sd. Koniierly at Coninion 
 Lvw interest ran from the date of enteriiij,' .iiidK'iiieiit ; and this is the date 
 under Hiif^lish IJules of 1.S.s;<: Ltiailnirni'nt af II'. EiKilaiid, HH W. U. 41; He 
 Lniiiluii. WlKirfiKj'' mil/ W'lrdinii.-o i< Co., ;« W. Ji. H.'JC. ; o;? Fi. '1'. X. S. 112; 
 liimirdl V. Cixiku, lili W. I{. (>."), altiiou<jli jud^fuieut issiK^d before lSS;j, and the 
 ta.xatiiiii was afterwards. The form of writ under those Kiih's (App. II, Form 
 1) and note theri'to now ho provide, differing,' in tiiis rospeet from the forni.s 
 of 1875: Pi/m'iti V. hurt, L'« Sol. .luur. tJS ; \V. N. 1S,S4, 100; 70 I.. T. .lour. 
 425. 
 
 HWi, It shall 1)0 the duty of every officer issuing a writ indorse- 
 of execution, or renewal thereof, to indorse upon the same ainounts to 
 a memorandum signed by him of the amount or amounts c^Htsof'"'^ 
 respectively hereinafter mentioned, which the party issuing wnts. 
 such writ is entitled to receive for suing out such writ or 
 renewal and placing it in the Sheriff's hands, including all 
 attendances, indorsements, letters, etc., and for his costs of 
 any prior, or other writs, or renewals, specifying tho 
 amount allowed for each writ or renewal ; and no sura not 
 so indorsed is to be collected for such costs. J. A. Rule 594. 
 
 The amounts which may be collected were mentioned in the original Rule 
 594 hut are now contained in the Tariff of Costs, Item 1.5. 
 
 8!):j. Every writ of execution shall bear date of the day Date, 
 on which it is issued. The forms in Part XI. in the 
 Appendix maybe used, with such variations as circumstances 
 may require. J. A. Rule 349, 
 
 Identical with the Eiig R. 1875, O. 42, r. 12, (1883, R. i592). 
 
 Wiipre a plaintiff had given notice to the defendant of discontinuance of the 
 action, and thecosts had been ta.\ed,itwa.s held that no further order of the Court 
 was necessary to enable the Chief Clerk to is.sue a writ to enforce payment, and 
 that the writ might, be varied to suit the circumstances of the case : /Solton v. 
 Ii"lhii, 3 Ch. D. 270 ; see also Pi/man v. Hurt, W. N. 1884, 100 ; 1 Cab. & El, 
 207 ; ISosiLrll v. Onds, 30 \V. R. 65. 
 
 See note to Rule G41. 
 
 804. A writ of execution if unexecuted shall remain in currency 
 force for one year only from its issue, unless renewed in the°^ ^'*' 
 manner hereinafter provided ; but such writ may, at any 
 time before its expiration, [a) be renewed by the party 
 issuing it for one year from the date of such renewal, and 
 so on from time to time during the continuance of the 
 renewed writ — either by being marked [{b) in the margin 
 with a memorandum signed by the proper officer who issued 
 such writ, or by his successor in office, stating] the date of 
 the day, month, and year of such renewal, or by such party 
 
 1 
 

 72G 
 
 Rules 
 896, 898. 
 
 
 Proof of 
 renewal. 
 
 Teste and 
 date of 
 writs of 
 . ca. ea. 
 
 ENFORCEMENT OF JUDGMENTS AND ORDEIIS. 
 
 giving a written notice of renewal to tiie HJieritl;, si^'ncd by 
 the party or his solicitor, and {(c) havini^ llie like niciuor- 
 andmn :] and a writ of execution ko renewed shall have 
 effect, and he entitled to priority, accordinfj; to the time of 
 the ori<i;inal delivery thereof. J. A. lUile BoiJ. 
 
 (ii) Til.. Kn^. R. 187."i, O. I'J, r. 1(>, (IHKI, 1{. rm), lias linv tin- w.mls "l,v 
 Iciivc of the Court or ii ,)u(lt,'i'." TIlc rfiifwal tinder tins Jtiili docs not rci|niii' 
 
 IfllVC. 
 
 {'') Till! inotliod ot marking' under tlie Knglinli Kule isdirei'teil to lie '• witli a 
 seal of tlie Court liearin^f," etc, instead of the mode jirovided liy the iiiis.<iij,'e 
 in lirai'ket.s. 
 
 (r) Fiistead of the \vordn hero in lirackets, tlie I'higlisli Rule lias " licaiiii? 
 th<' like seal of the Court." 
 
 With these exceptions, the KiiKlish Kule is the same as the nliove. The 
 nietiiod of markinp provided for in tiie jiresent /tide is taken from K. .S. 0. 
 1877, 0. ()(), H. 11, witii which tiio jiresent Jiiilr eorres|ionds in sulistance. 
 
 A writ is for the jiurpose of r. n(>wal neci'ssarily taken out of the actiiiil pijs- 
 session of the sheriff without affecting the position of the jiarty wlio sowitlnhiiws 
 it ; hut wiiere niort^ than a reasonahle time for renewal elaiised and liv 
 mistake a writ was not returned renewed for more than six mouths. tiiiiM),'li 
 there was no intention of witiidraAving itexeeot for purposes of renewal, it was 
 held that a mortgage registered before the witlidrawal had gained priority, and 
 that it nuidc^ no difference that no new ri),'hts iiad intervened : A''' llimr v. 
 Ledh'ii, 13 1'. R. 1 ; and see other cases noted p. 222. 
 
 There is no i)ower to enlarge the time for renewing writs wlieie, iiy an 
 accident, tliey havi^ not been returned in time for renewal within tlie year; 
 Lmrsiin v. CaiKdhi Faniier.s' /ii.i. C'«.,!tr. K. W.l 
 
 A writ of assistance was held to be a writ of execution within R. .S. (), 1H77, 
 C. (id, H. 11, and to be not in force for more than one year from the ^v^' uukss 
 renewed : AibuiiKon v. Adninsun, 12 P. K. 21. 
 
 Stt»5. The production of a writ of execution, or of the 
 notice renewing the same, purporting to be marked with the 
 memorandum in the last p^'eceding Rule mentioned, shew- 
 ing the same to have been renewed, shall he sufficient 
 prima facie evidence of its having been renewed. J. A. 
 Eule 854. 
 
 The Eng. R. 1875, O. 42, r. 17, (1883, R. oltO), has the words "such seal .v," 
 instead of the words "the memorandum," and hasnot the words " jin'mi'i /mii'"; 
 but is otherwise the same as the aliove I'nlr, and is the same as sec. 12 nf 
 R. S. O. 1877,0. (1(1. It has been said that the expression "sutticient evidence" 
 probably means primd facie evidence ; Jjannc/uiK/h v. (fireii/iinii/li, L. R. 2 
 
 q. B. (ii2. 
 
 8915. Every writ of capias ad satisfaciendum shall con- 
 tinue in force two months from the day of the date thereof, 
 inclusive, and no longer ; but on the expiration thereof 
 another writ may be obtained upon a Judge's order, in the 
 manner directed by section 9 of The Act respectimj Arrest 
 and Imprisonment for Debt. 11. S. 0. 1877, c. 66, s. 53. 
 The Act referi-ed to in this Rule is R. S. O. 1887, c. 07. 
 
8ALK UNDEU WRIT. 
 
 727 
 
 H*A7» Writs of execution to tix bail may bo tested and JJi^®' 
 
 retiiniahlo in vacation. 11. S. 0. 1H77, c. (U), s. 5-1. 
 
 has "liciiring 
 
 Writs to fix 
 Inill. 
 
 .S1>,S. Wliere it is necessary to sue out process ol" exo^n- itHiiaiiHtni 
 tiou Mgiunst the person nito any particular county in ord. v ^iry to Kue 
 to cluu-fjie bail, the same shall continue to be iiecessary tioVhr'tho 
 
 iJl'opoi' 
 i-ounty to 
 cliargobiiU, 
 
 li. 
 
 iiotwitlistaudins anything contained in these Iluios. 
 S. 0. 1877, c. 00, 8. U. 
 
 1. Salk under Writ. 
 
 SOU. Where any goods or chattels are seized in execu- shmiiT to 
 tion uiuler a writ issued out of the High Court or out of any ' rn'tmV "o 
 County Court, the Sheriti', his J )eputy, or officer, who seized etc.""'"''' 
 tlio same, shall, on request, deliver to the owner, his agent 
 or servant, an inventory thereof before they are removed 
 from the promises on which they have been so seized ; and 
 no Sheriff or other officer shall sell any effects under a writ 
 of execution until he has, previously thereto, given at least 
 8 days' public notice in writing of the time and place of sale 
 in the most public place in the Municipality where such 
 effects have been taken in execution, R. S. 0. 1877, c. 06, 
 8. 10. 
 
 1>00. It shall be the duty of the Sheriff, in every case 
 where goods seized by him under execution remain unsold 
 in his hands for want of buyers, to state and specify in his 
 return of "goods on hand," the time and place when and 
 where such goods were ottered for sale by him, and the 
 names of at least three persons who were present at the 
 time of such attempted sale, if so many were present, but if 
 so many were not present, then the names of those who 
 were present, if any, and that there were no others, and if 
 no person was present then to state that fact. R. S. 0. 
 1877, c. 66, s. 34. 
 
 001. The Sheriff shall not expose the lands for sale 
 under a writ against lands, or sell the same within less than 
 12 months from the day on which the writ against the lands 
 is delivered to him. R. S. 0. 1877, c. 00, s. 14. 
 
 W lifvc a /'. //(. lands has b"en in tlie Sheriff's lianfls for a year and is returned, 
 notliiiiif liaviny: l)een (hnie under it, th(! .Sheriff may nevertheless sell tnider an 
 (tlwKti, fii, lands issued thereon, -.vithout waiting a year: CamphvUx. Dililtnntii, 
 24 U. C. {{. 15. 23(i ; Nicknll v. Cmirfo-d, Tay. 277 ; Buttun v. Levinconti; i(i 
 U. C. (Mi. 4!).-). . . ,) . 
 
 ..A sale of lands under an f.'X|iired writ is void : Doc Burnham v. I'^itmaonth, 9 
 V, C. Q. B. 43G ; (hu-diner v, Jitson, 2 E. & A. 188 ; Doe Oreenshields v. (Jurroiv, 
 
 RoUirn 
 will re 
 t,'iioilsro- 
 niain in 
 Slioritf B 
 hands lui- 
 soIcL 
 
 Lands not 
 to bo sold 
 witliin a 
 year. 
 
 S- 
 
■Pif^™»WW^ 
 
 728 ENFORCEMENT OF JUDGMENTS AND ORDERS. 
 
 Rules 5 U. C. Q. B. 237 ; He.i/nolds v. Strcctcr, 3 P. R. 315 ; Lee v. Horns, 30 
 
 902-904. U. C. Q. B. 202 ; but where there has been an i'-ception of execution (hu'ing its 
 currency, ('.(/., by advertising the land for sale under it, the sale may Ix; 
 made and carried out after the writ has liecome returnable : Hull v. ^'ox/(V, 15 
 C. P. 101 ; Mult !M)7. Tliough the advertisement may be published during the 
 currency of tlie writ, yet by tlie express terms of this Rule the day uiuiiwl for 
 tlie sale must not be earlieV'thau twelve calendar months : see Itnlr 4 ; H. 8. 0, 
 c. 1, 8. 8, (15,) from tlio day on whicii the writ was delivered to the Slierilf. 
 Advertisements of sale mider the writ, tirst published after tlie writ has 
 expired, are invalid, and a sale in pursuance of such advertisement is void : 
 (•'(inliiur V. Jumtit, Jitjiiiotils v. Strriii:/; Lee v. Howen, supra ; and a rct\ini uf 
 " lands on liand " miule after the writ has expired, and without any previims 
 incepti(m oi execution under it, is invalid, and will not authorize the i'isneof a 
 vcnilitioni (jr/i'iiKiK, and if issued, and a sale be made under it, the sale may be 
 set aside : Lri' v. Hourn, suiira. The Hheriflf's telling the execution dehter that 
 he has a.ft'. fa. against his lands, and that his Luids will be sold, unless he pays 
 u)i, is not an inception of execution : lirudhurn v. Hull, KJ Gr, 51M ; neither is 
 the mere sending of a list of lands for sale under an execution to the Uir.Me 
 for publication an inception of execution ; there must be .an actual publi- 
 cation of the advertisement during the currency of the writ : Eeynohh v. 
 Sti'ciU'r, aupra. 
 
 The selling of land by the Sheriff before the proper period has expired is not 
 a mere irregularity, but renders the sale void : see cases .scy/zc ; whereas 
 defects in the advertisement of sale to which the imrchaser is no i)arty will not 
 affect the validity of the sale : Fat<r»<m v. ToM, 24 U. C. <i. 15. 2!)(! ; «(/s,< v. 
 Malimv, 7 Out. 215, 307, imless the circumstances are such that the |)urciiaser's 
 t iking che deed can be said to amount to a fraud : McI)onnUl v. Comcruii, 13 
 (4r. 84; but where irregularities are committed by the Sheriff by instructions 
 of the execution creditor's solicitor, and the execution creditor himself iH-comes 
 the purchaser, the Court may, if the sale has been i)rejudiced, refuse to main- 
 tain the Sheriff's deed, if .att.tcked, except as a security for the debt : //'. ; and 
 see In re Durin, 17 Hr. 003; Kerr v. Jiuin, 11 (xr. 423; and where land has 
 been sold under execution at a gross undervalue, owing to the title being 
 in dispute, the Court may ri'fuse to give effect to the Sheriff's deed, excejit as a 
 security : Chdlmcrs v. I'i'jott, 11 (4r. 475 ; and see Molloch v. Flunhtt, 11 Gr. 
 430 ; but the inadequacy of jirice nnist be very excessive to induce the Court to 
 refuse to maintain a Sheriff's deed : Laimj v. Mutthews, 14 Gr. 30. 
 
 Where the sale has been impro])erly conducted, the Sheriff may be restrained 
 by injunction from executing a conveyance : Jones v. Jones, 15 (ir. 40, 
 
 J!-.-. /a. If 'Ids fl03. When a writ against lands is issued in an action 
 
 absconding against an absconding debtor in which an order for attach- 
 
 debtor. jjjent has issued, the Court or a Judge may order the Sheriff 
 
 to sell the lands before the expiration of the twelve months, 
 
 but in like manner as in other cases. 50 V. c. 7, s. 7. 
 
 Time^or »03. No Sheriff, Deputy Sheriff or other officer Bhall 
 sale" in Ai- Sell, or expose for sale under execution, any lands or tene- 
 ^hSSde"^ ments in the Provisional Judicial Districts of Algoma or 
 limited Thunder Bay, except between the 1st day of July and the 
 1st day of November. 42 V. c. 15, s. 4. 
 
 ilndBun*t« *l'04. No sale shall be had under any execution against 
 return of lauds Until after a return of nulla bona, in whole or in part, 
 mdiabona. ^^^j^ respect to an execution against goods in the same 
 
SALE UNDER V.'RIT. 
 
 729 
 
 action or matter by the Sheriff of the same county. R. S. 0. S!'k®5-. 
 1877, c. 66, ss. 15, IG. '°'''®^- 
 
 The omission to make a return of nulla liona, as required by tliis /tii/r, before 
 selliiiK liiii'l. i'* 'I'l ii'renfularity only, and will not render the sale of the lands void : 
 Boss V. Miiiom', 7 Out. 215, 307 ; Jhic d. Spafford v. Jirmrii, 3 O. 8. !)2. So also 
 aret\irii of nid/d Imim, where there are in fact goods liable to execution, is only 
 ail iiTeffularity ; Ontario Bank v. Kcrbij, 10 C. P. 35, 41 ; Molson's Bank v. 
 McMnkiii, 15'Oiit. App. 535. 
 
 00»i. If the amount authorized to be made and levied "j^'fu^^^*^ 
 under the writ against goods is made and levied there- "'ider writ 
 under, the person issuing the writ against lands shall not^Sods^ 
 be entitled to the expenses thereof, or of any seizure or 
 advertisement thereunder ; and the return to be made by 
 the Sheriff to the writ against lands shall be to the effect 
 that the amount has been so made and levied as aforesaid. 
 R. S. 0. 1877, c. 66, s. 17. 
 
 900. Before the sale of real estate under execution Notice of 
 against Lmds and tenements, the Sheriff s'lall publish ani'^-dsin 
 advertisement of sale in the Ontario Gazette, at least gjx ®''®°"*'°"' 
 times, specifying : 
 
 {(i) The particular property to be sold ; 
 
 (b) The names of the plaintiff and defendant ; 
 
 (c) The time and place of the intended sale ; 
 
 and he shall, for three months next preceding the sale, abo 
 publish such advertisement in a public newspaper of the 
 county in which the lands lie, or shall for three months put 
 up and continue a notice of such sale in the office of the 
 Clerk of the Peace, or on the door of the Court House or 
 place in which the Court of General Sessions of the Peace of 
 the county is usually holden ; but nothing herein contained 
 shall be taken to prevent an adjournment of the sale to a 
 future day. R. S. 0. 1877, c. 66, s. 41. 
 
 It would seem that the omission to advertise, where there is an uncertainty 
 as to wiiat has been sold, though it may give a right against the Sheriff, will 
 not invalidate t\w sale as against a liond fide purchaser : (Mmrne v. Kerr, 17 
 U. C. (i. B. 134, 141; and see Lve v. Hown, 30 U. C. (i. B. 202. Defects in 
 the advertisement will not invalidate the sale as against a third i>erson, or 
 even the execution creditor, wh;) bonitjide l)ecomes the purchaser : Patcrsnn v. 
 Toitd, 24 U. C. (I. H. 2!)() ; but wiiere the e) uti jn creditor becomes the 
 purchaser, if lie has in any way by himself oi' his solicitor jjarticipated in the 
 irregularities, liis deed may be ordered to stand merely as a security : 
 McDomdd V. ('(imcron, 13 Gr. 84 ; In re J)avi», 17 (ir. ()03. 
 
 The want of regularity in giving public notice of an adjournment of the sale 
 ^^^ held to Ix; cured where the debtor attended the sale by his agent, and 
 afterwards ratified what had been done : Doc Dinsett v. McLiml, 3 U. C. (J. B. 
 207. But where a Sheriff refused to execute a deed on the ground of there 
 
 ■ T-r-^^n'^H^fe^'- 
 
730 
 
 Rules 
 907-910. 
 
 ENFORCEMENT OF JUDGMENTS AND ORDERS. 
 
 having been an irregularity in the advertisement, but readvertised the lands 
 and put tlieni up for sale again, where they brought a price far exceeding that 
 offered l)y the first jmrchaser, tlie Court refused to interfere smnniarily on the 
 api)lication of tlie first |)urchaser to compel the Sheriff to make a deed to him' 
 In re Campbell, 10 U. C. C^. B. (541. 
 
 Notice in «07. The advertisement in the Ontario Gazette of &ny 
 shall con- hincls foi' Sale under a writ of execution, during the currency 
 cipimuexe-of the writ (giving some reasonably definite description of 
 cation. jjjg ^^^^^^ j^^ g^^.^^ advertisement), shall be deemed a suffi- 
 cient commencement of the execution to enable the same to 
 be completed by a sale and conveyance of the lands after 
 the writ has become returnable. It. S. 0. 1877, c. 66, s. 42. 
 
 5. Keturn of Writs, etc. 
 
 ?e*turn*° OO.S. All Orders against Sheriffs to return writs, or 
 writs or to bring in the bodies of defendant"*, shall be returnable in 
 body! to be days, and shall be issued from the same office whence the 
 oiiderY writ was sued out. Eules T. T. 1856, 101. 
 
 Before an order to return a writ is issued, it would seem that a demand for a 
 re;;urn sliould be first made midov Ri'/c i)14. The neglect to make tlieclMnaiid 
 first would i)rol)ably be held to diHentitle the party issuing the order to tlie 
 costs thereof : s('e Rule !)lt». 
 
 The order may be obtained on pnvcipc : see Rule 000. 
 
 An order to bring in the body upon a return of crpi cntpun may l)e issred 
 in.mediatelv after the time for putting in special bail has expired : PouelKT v. 
 Lie IT, I, 4 Mo. & Sc. 427 ; Hntchitis v. Hind, 5 T. R. 470 ; I'nltn- v. Mnnda, 
 8 East, .52.5. But the order siiould not issue until the day after the ex|)iration 
 of an order (if any) to return tlie order for arrest : see Jfulcliinn v. J/ini!.. supra. 
 The ordiu' to bring in the body cannot be properly issued whevi^ the plaintiff 
 has taken an assignment of the bond tc the Sheriff : 2 Saund. (iOh ; or when he 
 acce])ts a coini'irit or other security from the defendant, without tlie i)rivit,v of 
 tile Siieriff : Rex v. .Sherif of Snrrcii in lirarer v. Chukr, 1 Taunt. l.")!l. The 
 order sliould bo issued and served promptly : Rc.v v. Shrriff of Miihlhrn, 1 
 Dowl. .53. It would s(?em that an order to return the writ or bring in tlie 
 b(jdy need not be i)er.sonally served on the HlunifT, if he camiot conveniently be 
 found : see Rule 017. 
 
 Orders for 
 return of 
 wi'its, etc., 
 to be on 
 prcecipe. 
 
 !>0!l. No Judge's order shall issue for the return of any 
 writ, or to bring in the body of the defendant, but apmcipe 
 order shall issue for that purpose, which shall be of the 
 same *'orce and effect as side bar rules formerly made for 
 that purpose in Term. Rules T. T. 1856, 102. 
 
 This order may issue from the office whence the writ issued : see Rule 25. 
 
 1>l«. The Sheriff shall file the writ in the office from 
 which the order to return the same was issued, at the 
 
 „,^^ „- expiration of the order, or as soon after as the office shall 
 
 turn issues, ijg ^pg,-,^ ^^^^ ^},g officer with whom it is filed shall indorse 
 the day and hour when it was filed. Rules T. T. 1856, 103. 
 
 Sheriff to 
 file writ in 
 otHce from 
 wliich 
 order to re 
 
RS. 
 
 'ertised the lands 
 ar exceeding that 
 isiiiiiiiiarily on the 
 ke ii deed tt) him ; 
 
 Jazettc of any 
 5 the currency 
 description of 
 eemecl a suffi- 
 le the same to 
 lie lands after 
 r7,c.66,8.42. 
 
 :urn writs, or 
 i returnable in 
 ice whence the 
 
 that a demand for a 
 (I make the demand 
 iig the order to the 
 
 irpus may be issved 
 xi)ired : Ponchir v. 
 J'attrr V. Mdrnde'l, 
 after the expiration 
 hinsv. IliiKl.sHiim. 
 where the pliintiff 
 nd. ()0h ; or whon he 
 ithout theiirivityof 
 1 Taunt. l.")!l. ^lie 
 rriir of MiildlexxA 
 vrit or brinp in the 
 inot conveniently be 
 
 e roturn of any 
 it, but iipnecipi 
 shall be of the 
 merly made for 
 02. ' 
 
 med : see Ruh 25. 
 
 the oflfice from 
 issued, at the 
 p the office shall 
 ed shall indorse 
 T T. 1856.103. 
 
 RETURN OF WRITS, ETC. 
 
 731 
 
 Arrest by 
 slieriff be- 
 fore Koing 
 out of 
 office ; 
 order to 
 bring in 
 body. 
 
 I etc. 
 
 AVhere the Sheriff disobeys the order to return the writ, he is liable to attach- Rules 
 uient for contempt ; but an attauhment can only be obtained on motion, of 911-914. 
 which the Sheriff is entitled to notice : see J tide 879. 
 
 91 It Where any Sheriff, before his goinfj; out of office, 
 arrests any defendant, and takes a bail bond and makes a 
 return of cepi corpus, he shall and may, within the time 
 allowed by law, be called upon to bring in the body by an 
 order for that purpose, notwithstanding he may be out of 
 office before the order is granted. Eules T. T. 1856, 105. 
 
 The order to bring in the body is obtainable on pro'cipe as against a Sheriff : 
 see Rule 'M)S ; but where the order is required against one who has ceased to be 
 Sheriff, it is ])ossible that Jtule !)08 would not a])i)ly, and that tlie order must 
 be obtained on motion. 
 
 !M2. Every Deputy Clerk of the Crown and Pleas, Local [^f^iJ^J^y^f 
 or Deputy Registrar, or Clerk of the County Court, may tiie clown 
 sign and issue orders on any Sheriff to r^^urn writs issued omcoi's*'' 
 out of the office of such Deputy Clerk, Local or Deputy o"d^,i!^™® 
 Registrar, or County Court Clerk and directed to such i';^.'»'" 
 Sherilf ; and the Sheriff shall, in case of his being served 
 therewith, return the writs to the office from which the 
 same issued. R. S. 0. 1877, c. 6G, s. 57. 
 
 913. In case a writ delivered to a Sheriff for service or 
 execution has remained in his hands 15 days, and in case 
 he has not been delayed from returning' the same by an 
 order in writing from the party from whom he received the 
 writ, his solicitor or agent, and in case he is afterwards 
 directed by order of Court to return such w'rit, he shall not 
 be entitled to any fees thereon unless, within 4 days after 
 being so directed, he returns or encloses the v.rit by post to 
 such partv, his solicitor or agent. R. S. 0. 1877, c. 66, 
 6. 58. 
 
 9I'I. In case the party who delivered any writ or process 
 to any Sheriff to be executed, by himself or by his solicitor, 
 or by the agent of such solicitor, requires, by a demand in 
 writing, the Sheriff to return the writ either to the party or 
 to his solicitor or solicitor's agent, or to the Court from 
 which the writ issued, (and whether such requisition is made 
 before or after the service or other execution thereof,) the 
 Sheriff shall within 8 days, inclusive of the day of the service 
 of the requisition, return the writ according to the terms of 
 the requisition ; and in case the sheriff wilfully refuses or 
 neglects to do so, he shall be liable to be ordered to return 
 
 Shei-ifif not 
 entitled to 
 fees on 
 writs un- 
 less re- 
 turned in 
 four days 
 after being 
 ordered, if 
 writdo- 
 '■ vered fif- 
 teen days 
 l)efore such 
 order. 
 
 Slieriff re- 
 fusing to 
 make re- 
 turn wiien 
 demanded 
 by party 
 wlio de- 
 livered it 
 to liim. 
 
 Order 
 
 against 
 
 Slie3'iff. 
 
732 
 
 Rules 
 916-919. 
 
 ENFORCEMENT OF JUDGMENTS AND ORDERS. 
 
 the writ, and to be further proceeded against as in other 
 cases of contumacy. E. S. 0. 1877, c. 66, s. 59. 
 
 !>li>. In all cases where the party to the writ or process 
 who did not deliver the same to the Sheriff to be exeucted, 
 
 Othor 
 party oii- 
 titlod to 
 
 in-o"oiHi'ii7 is entitled, according to the practice of the Court, to call 
 
 ner. '""'" for a return of the writ or process, he may proceed in like 
 
 manner to procure such return as is above provided in the 
 
 case of parties who have delivered the writ or process to the 
 
 sheriff for execution. R. S. 0. 1877, c. 66, s. 60. 
 
 siioriff 1HO. In every case in which a Sheriff neglects or refuses 
 
 liable to to rctum any writ when so called upon, he shall be bound 
 ncft retmu- to pay the costs of any order taken out to compel tbe return, 
 ing writs, j^j^ J j^^jj Q^^\^Qy. costs consequent thereon, and also the costs 
 
 of the ))revious requisition to make the return. K. S. 0. 
 
 1877, c. 66, s. 61. 
 
 Personal 
 service on 
 Slieriif un- 
 necessary. 
 
 Certain sec 
 tions to 
 apply to 
 Coroners 
 and Eli- 
 sors. 
 
 !>17. In no case shall personal service on the Sheriff be 
 necessary, if it appears by affidavit that inquiry was made 
 for him, and that he could not conveniently be found, but 
 service shall be deemed to have been made upon the Sheriff 
 by serving the Deputy Sheriff if he can be conveniently 
 found ; and if the Deputy Sheriff cannot conveniently be 
 found, then service may be made upon the Sheriff's clerk, 
 or upon any bailiff of the Sheriff who may for the time beins; 
 be present in, or have charge of, the Sheriff's office. E.S.O. 
 1877, c. 66, s. 61. 
 
 »l«. Rules 873, 912 to 915 inclusive, 917, 919, 925 and 
 1233 to 1237 inclusive, shall extend and apply to coroners 
 and elisors employed in the service or executing of the 
 process of the High Court, or of any of the County Courts, 
 R. S. 0. 1877, c. 66, s. 65. 
 
 ments^for ?>■?>• In case a writ is issued out of any Court of Eecord 
 non-retuin directed to a Sheriff, and is delivered to him for execution, 
 niay bo^ and in case the Sheriff is ordered to return the same by any 
 leir/nrtberOi't^er of the court out of which the writ issued, and does 
 i-etmn"'^ not make the return within the time specified in the order, 
 granted, the plaintiff or defendant in the writ (as the case maybe) 
 may move for an order of attachment against the Sheriff, 
 and the Court or a Judge may order the Sheriff to be 
 
ft > , ^ "I'l" 
 
 ERS. 
 
 ist as in other 
 , 59. 
 
 svrit or process 
 to be exeucted, 
 ; Court, to call 
 proceed in like 
 provided in the 
 i: process to the 
 .. 60. 
 
 jlects or refuses 
 shall be boiuid 
 npel the return, 
 d also the costs 
 turn. R. S.O. 
 
 n the Sheriff be 
 quiry was made 
 ly be found, but 
 upon the Sheriff 
 36 conveniently 
 conveniently be 
 _ Sheriff's clerk, 
 )r the time being 
 Botiice. E.S.O. 
 
 7, 919, 925 and 
 pply to coroners 
 executing of the 
 
 County Courts. 
 
 Court of Eecord 
 im for execution, 
 
 the same by any 
 
 issued, and does 
 tied in the order, 
 
 the case maybe) 
 .ainst the Sheriff, 
 'he Sheriff to be 
 
 RETURN OF WRITS, ETC. 
 
 733 
 
 attached, or limit a further period after which an order of ^^^^^ 
 attachment shall issue unless a return be made in the mean- 
 time, or may otherwise order aa to him seems proper. 
 R, s! 0. 1877, c. 66, s. 66. 
 
 020. In case the writ is not returned at the expiration when at- 
 of any further time limited by the order mentioned in the uuiy'iTiIe. 
 last preceding liule, and in case the service of the order and 
 the failure of the Sheriff' to return the writ is proved, the 
 Court or Judge may order a writ of attachment to issue 
 forthwith against the Sheriff'. 11. S. 0. 1877, c. (Hi, s. 67. 
 
 921. Upon the return of " ceid corpus'"' to any suchJiuiRfiin 
 
 *■ ' r 1 , . • • T i- e -1 ('lmiiil)ors 
 
 attacbmeut, any Judge having jurisdiction as aforesaid may i.my onier 
 direct the issue of a writ of habeas corpus, and thereupon \T\^li°!t 
 may exercise the same powers and discretion in committing ';_''!"'"* 
 the Sheriff' to close custody, or in admitting him to bail, and 
 in all other respects, as are possessed by the Court. B. 8. 0. 
 1877, c. GO, s. 68. 
 
 922. All orders of attachment and writs of /<rt/>Ms corpus f^^chwrit^ 
 issued agahist a Sheriff may be returnable on a day certain umJuil'^ 
 to be fixed by the order of the Judge or Court ; and the curtahli*' 
 return day shall not be more than 30 days from the issuing 
 
 of the order ; the order when issued out of the High Court 
 shall be made returnable before the presiding Judge in 
 Chambers, and when issued out of any County Court, before 
 E. S. 0. 1877, c." 66, s. 69. 
 
 the Judge thereof 
 
 92». Every Deputy Sheriff', Bailiff, or other Sheriff"'s 
 officer or clerk entrusted with the custody of any writ or 
 process, or of any book, paper or document belonging to 
 the said Sheriff or his office, shall, upon demand upon him 
 by such Sheriff", restore and return such writ, proce.ss book, 
 paper or document to the custody of the said Sheriff", and in 
 case of any neglect or refusal to return or restore the same 
 as aforesaid, the party so neglecting or refusing may be 
 required by an order of an/ Court of liecord in Ontario, or 
 of any Judge in such Court, Lo return and restore such writ, 
 process, book, paper or document to such Sheriff", and may 
 be further proceeded against by attachment, as in other 
 cases of contumacy to orders of Court. R. S. 0. 1877, 
 c. 16, s. 32. 
 

 m 
 
 
 734 
 
 Rules 
 924-926. 
 
 On what 
 authority 
 SheriffB 
 may dis- 
 charge 
 debtors 
 from cus- 
 tody. 
 
 ErT'.iRCEMENT OF JUDGMENTS AND ORDERS. 
 
 »34. If any Deputy Sheriff, Bailiff or Sheriff's officer 
 has in his possession, custody, or control, any writ of 
 summons,./t<;n facias, or other writ, or any bench warrant 
 or process whatsoever, and, upon demand made by the 
 Sheriff from whom the same was received, or his successor 
 in office, or by any other party entitled to the possession of 
 the same, neglects or refuses to deliver up the same, such 
 Sheriff or his successor in office, or the party entitled to the 
 possession of the same, may proceed before any Judge 
 having jurisdiction in the Court out of which su h writ or 
 process issued, to compel the production thereo' , and the 
 order made thereupon may be enforced in the same manner 
 as like orders for the return of writs against Sheriffs, and 
 with or without costs or the motion may be refused with 
 costs against the party applying, in the discretion of the 
 Judge aforesaid. E. S. 0. 1877, c. 16, s. 83. 
 
 6. Discharge of Exkcution Debtors from Custody. 
 
 02f>. A written order under the hand of the solicitor in 
 the action by whom a writ of capias ad satisfaciendum has 
 been issued, shall justify the Sheriff, gaoler or officer in 
 whose custody the party is under such writ in discharging 
 such party, unless the party for whom such solicitor pro- 
 fesses to act has given written notice to the contrary to the 
 said sheriff, gaoler, or officer ; but such discharge shall ^''i 
 be a satisfaction of the debt unless made by thf; ; ' : r.it; 
 of the creditor ; and nothing herein contained sL. , ■ ' ly 
 the solicitor in giving an order for discharge ^.ii '-: ii' 
 consent of his client. R. S. 0. 1877, c. 6G,, s. bo. 
 
 of judi^- 
 
 uieut 
 
 debtor. 
 
 
 7. Attachment op Debts. 
 
 ^Kr'ox- •>2^« [(«) Where a judgment is for the recovery by, or 
 aiiiinatiou payment to, any person, of money, the party entitled to 
 enforce the judgment] may |(^) without an order] examine 
 the judgment debtor upon oath before a Master, or Local 
 Master, or an Examiner, or before one of the Clerks or 
 Deputy Clerks of the Crown, or before the Judge of the 
 County Court of the County within which such debtor resides, 
 or before any official referee |(c) or by the order of the Court 
 or a Judge before any other person to be specially named m 
 such order] [((/) touching his estate and effects, and as to 
 the property and means he had when the debt or liability 
 
 ^ 
 
 UP 
 
 ' h 
 
 CiA'^iT - <ii^ 
 
 
 
 if 
 
 y 
 
in 
 
 ERS. 
 
 Sheriff's officer 
 , any writ of 
 )encli warrant 
 
 made by the 
 !• his successor 
 3 possession of 
 ;he same, such 
 
 entitled to the 
 )re any Judge 
 ;h su h writ or 
 ereo' , and the 
 le same manner 
 st Sbeviffs, and 
 jB refused with 
 iiscretion of the 
 
 3- 
 
 ROM Custody. 
 
 ' the solicitor in 
 tisfaciendum has 
 ler or officer in 
 t in discharging 
 ich solicitor pro- 
 ■i contrary to the 
 charge sliall '"'^ 
 
 by tlio :.:' : -;■■: 
 
 ned £b' '■ !-'' '';' 
 8. 5J>. 
 
 . recovery by, or 
 )arty entitled to 
 n orderl exaniuie 
 Master, or Local 
 of the Clerks or 
 he Judge of the 
 ch debtor resides, 
 ..-der of the Court 
 necially named m 
 ffects, and as to 
 debt or liability 
 
 ATTACHMENT OF DEBTS. 
 
 785 
 
 ar 
 
 which was the subject of the action in which judgment has^'^"26. 
 been obtained against him was incurred, and as to the pro- 
 perty and means he still has of dischai'ging the said judg- 
 ment, and as to the disposal he has made of any property 
 since contracting such debt or incurring such liability, ai:d 
 as to any and what debts are owing to him.l J. A. Bule 
 866, R. S. 0. 1877, c. 49, s. 17 ; e. 50, s. 804. 
 
 This Ruir varieH from botli R. S. O. 1877, c. 49, s. 17 ; c. 50, s. 304, and the 
 Eng.R. 1875, (). 45, r. 1, (18S3, R. ()10-(J11). 
 
 ((() Till' Wdi-ds here in hriick<;ts arc taken fnim tlic En(jliKli Rule, and are 
 more extensive than the corresponding words in the Rev. Stat. 
 
 (6) Both the Statute and the Enpfli.sh Rule re(iuire an order which the present 
 Riih dispenses with. 
 (c) The clause here in bracket.s was not in /liilv 3(i0, and is taken from R. S. O. 
 
 1877, c. no, s. :m. 
 
 ((/) Taken from R. S. (). 1S77, c 4!t, s. 17. 
 
 Before an examination can he had under this /'ii/f there must be a return of 
 nidid hiiiM or the Sheriff nuist have notified the creditor that he is jirejiared to 
 nmke such a return ; Onlarln liaiilc v. Trovrru, 20 C. L. J. llMt ; 10 C. L. T. 137. 
 
 The fees are payable in stamps on an examiuiition before a (\)unty Jtldge, or 
 Local Master, under an order made by himself : see Rcle 11!»2. 
 
 By i?M/e (134 it is ])rovided that every judgment or order directing the pay- 
 ment of money or of costs, charges or ex|)enses, shall be deemed a judgment, 
 iuul that the per.son having tlu? carriage of a judgment or order for payment ol 
 money into Coiu't sliall be entitled to enforce it under Jiiilr !t2(). 
 
 The practice in England with regard to such cases, at any rate before the 
 Rules of 18^3, was different : A'c Fiiin/./atKl, L. R. 8Q. B. 18; Crcmelli v. Crom, 
 \(l B. 1). 225; lird v. I'nnln-uh; L. R. 8 (l B. 3(i3 ; Ur I'rin; L. R. 4 C. P. 
 in,J: llniyln V. rnr, L. R. 4 Oliy. !t2 ; see, however, Nnlt \\ S<t,i,h, VV. N. 1883. 
 74; and it was held tliat an order dismissing an actiiiu with costs was not a 
 juilgnieut witiiin tiie yi/(A' corresponding to A'"/r !(2(i, and therefore not enforce- 
 able by attachment of debts : see notes to Kuli' !)35. 
 
 Doubts were expressed ujider the original Out. Ri'h' as to whether R. S. (). 
 lH7r, c. ()7. s. 12, 13, (now ltnl>' i)34) applied to extend tlie word " judgment " 
 in tiiis /,'(//.', and Itulf '.•3,-). In McLmli/in v. BUickliurn, 7 P. R. 287. it was lield 
 that tile delitor was liable to examination thougii tlie judgment was only for 
 costs; but in .I/t/zo-.s v. K( iidrir/.; !t P. K. .3(13, that case was disajiproved 
 of, ami it was held that a defendant liaving a judgment for costs against the 
 planitiff, was imt entitled to examine the plaintiff under this Rule as a judg- 
 ment debtor: M<!iir« v. Kvii'lrich-, lias been iield by tile Divisional Court, 
 C. P. 1)., to have been correctly decided under the Rules and Statutes then in 
 force a,iid to still apply under the present Ruh-s, notwithstanding link !)34, 
 wliicii is tnerelv a repetition of a clause of one of the former Statutes : Tnnit- 
 mn v. FUki'ii', 13 P. R. 15.3. 
 
 It was lield that II. S. (). 1877, c. (it!, s. 72, sot sucli doubts at rest so far 
 iw die right to attach debts (see Rule i)35) was concerned : Re Irriiie, 12 P. R. 
 2il7; Kllint V. C<i/jel, •» P. R, 35. Tliat section was more explicit tlian Rule 
 '.•34, and expressly gave the right to attach debts in the case of a judgment 
 wrule or order for costs, or for payment of money into Court. 
 
 Under tiie present Rulcn, though R. S. O. 1877, c. (i(i. s. 72, has not been con- 
 tinued in either tlie R. S. O. 1887, or the Consolidated RiUeK, it has been held 
 hy the Master in Chambers that Trout man v. /VA/r/i, .sv/nw, does not qualify 
 the rigiit to attach, but tliat under Ritlex 934, and 935, that right continues as 
 when EIUdI v. (\i))el, and Re /ri'ine, w'ere decided : Lonidiii Mittiiul v. Jacob, 
 (Mr, Dalton in Chambers, 30th October, 1889.) See also Rule 8G2. Judgment 
 
 A judgment for the recovery of land, and awarding costs is within this Bide: for recov- 
 Uoud v. Wallace, 9 P. R. 335 ; such a judgment, and probably, us for- ery of land 
 
 and costs. 
 
 Debtor not 
 exaniiu- 
 al)lc where, 
 judguient 
 for costs 
 only. 
 
 Attach- 
 ment of 
 dol)ta 
 
 wliere judg- 
 ment for 
 costs only. 
 
 %. 
 
 
786 
 
 ENFORCEMENT OF JUDGMENTS AND ORDERS. 
 
 Who may 
 be exam- 
 ined. 
 
 Rule 927. merly, an ortlcr foi cmts of an iiitor;(l(>a<Ier issue, will trntitlf the person to whom 
 the costs are payable to attaoli dehts : llurthil v. Shemuvll, 1 Ji, & S. 1. 
 
 Not only tlie judgment debtor Imt by order, under link ',(;5M, liis clerks or 
 employees, and, in the case of acorporation debtor, its officers may be examined. 
 The Jiii/rs in this resjipct are wider than those in Englaiul : see Srii'ell v. Eikn, 
 18 (i. B. 1). 588. 
 
 A delitor under arrest on final process may be examined : Br('ini v. Beiiimiijf, 
 2 U. C L. J. 213 ; or a garnishee who has lieen ord<!red to |my over : Coiniity. 
 Vartill, :« W. K. 58:1; 02 L. T. N. S. 431. A married woman may \w 
 examined as to her separate estate : Slamhtril Hank v. M(<^>ii(ii(/, 7 P. R. ;!.")(> 
 See McL<-tH/ V. hiiii(i/i, 12 P. K. 4.-)0. 
 
 Though an examinaticm may be had without an order in tbe first instance, 
 yet, wiiere a p.arty wishes to examine a judgment debtor a ocond time, hi' 
 must make a substa , live motion for that purpose on notice to the judgment 
 debtf r, and sliew grounds for tlie order: Ldinlim ((• CuiKti/id/t l.i«iii, etf.w 
 Merrilt, 2 C. L. T. 2(i(). 
 
 Tbi' examination is intended tf) hv a cross-examination of the strictest char- 
 acter : /Seiiffir V. /liir/ini, 2 C L. T. 104 ; and any (juestion "fairly jicrtinent 
 to tiie sul)ject m;itter of tiie iiKiuiry, which means put with a view to ascertain 
 so far as possible by discovery from a reluctant defendant whatdebtsiiroiiwing 
 to him, ought to b-* answered liy the defendant." He nnist also "'give all 
 necessary particulr.rs to enable the plaintiffs to recovt'r under a garnishee order ; 
 RepahllcdfCiiUit It lea v. Sli-onslwrj, l(i Cii, D. 8. 
 
 Where the person examined cannot speak as to the facts abo\it which exami- 
 nation may be had, without r.'ferringto l);ioks, etc., the Examiner's (hity is to 
 require their production and thev must be i)roduced : Rwmi'll v. Mai'ihinahl, 12 
 • P. R. 4,-)8. 
 
 Inquiry as to the means of the ilebtor is not n^stricted to the period of 
 contracting the debt, but it may be shewn that at some anterior time the 
 debtor had jiroperty as to which \w. may be re(iuired to give an iiceonnt, and it 
 is not a sufficient answer to say merely that it has all been disposed of before the 
 debt was incurred : Ontario Bank v. Mitchell, 32 C. P. 73. 
 
 HonVor ex- •^"^'^ ■ ^^ ^ase the judgment is against a body corporate, 
 
 amiuatiou or ail Order for the payment of money has been obtained 
 
 of corpom- against a body corporate, the person entitled to enforce the 
 
 tions. judgment, or order, may in Hke manner examine any of 
 
 the officers of such body corporate, upon oath, before the 
 
 Judge of the County Court, or other officer referred to in 
 
 the next preceding Rule, touching the names and residences 
 
 of the stockholders in said body corporate, the amount and 
 
 particulars of stock held or owned by each stockholder and 
 
 the amount paid thereon, also as to any and what debts are 
 
 owing to the said body corporate ; and as to the estate and 
 
 effects of the body corporate ; and as to the disposal made 
 
 by the body corporate of any property since contracting the 
 
 debt or liability, in respect of which the said judgment or 
 
 order was obtained. J. A. Rule 367; R. S. 0. 1877, 
 
 . c. 49, s. 19. 
 
 The statute referred to required an order, which now under this Rule i« 
 dispensed with. 
 
 The correspoTiding provision in England, Rules of 1883, R. filO, is in sub- 
 stance the same. There was formerly no power to order tiie examination of an 
 officer of the cori)oration in such case : hickson v. Xenth, etc., liy. Co., L. R. 4 
 Ex. 87. This Rule removes the defect. 
 
ATTACHMENT OF DEBTS. 
 
 787 
 
 rson to whom 
 tS. 1. 
 
 , his di'rks nr 
 bt' examined. 
 'fwcll V. Ellen, 
 
 •H V. Bemmi(ji', 
 vpr : i'omm v. 
 )iuan may be 
 
 ;/, 7 r. K. :w.. 
 
 ! first instance, 
 ocoud time, lii' 
 ) till' judgment 
 71 Loiiit, eti'. V. 
 
 [■ strictest char- 
 fairly pertinent 
 iew to ascertain 
 (U'lits are owing 
 , also •' give all 
 aruisliee order ; 
 
 lit wliicli exanii- 
 incr's duty is to 
 ,. Mardniudd, 12 
 
 ,() the period ot 
 uterior time the 
 II iiccount, and it 
 ,sed of before the 
 
 ly corporate, 
 Ben obtained 
 enforce the 
 limine any of 
 before the 
 eferred to in 
 nd residences 
 aniount and 
 ckholder and 
 lat debtB are 
 .16 estate and 
 isposal made 
 )ntr acting the 
 iudgraent or 
 S. 0. 1877, 
 
 nder this iJ'<" '» 
 
 R. f.lO, is in sub- 
 examination of an 
 
 :., liy. Co., L. R. i 
 
 !)2M* Where judgment has been obtained as aforesaid, ^"^® '^^• 
 the Court or a Judge may, on the application of the party u<m'of "or- 
 entitlod to enforce the judgment, order any clerk or employee ^',',',;^',;^'t"o a 
 or former clerk or employee of the judgment debtor, or any doijtor's 
 person, or the officer or officers of any corporation, to whom 
 the debtor has made a transfer of his property or effects 
 since the date when the liability or debt which was the 
 suhject of the action in which judgment was obtained was 
 incurred, to attend at the county town of the county in 
 which such person resides, before a Master, or an Official 
 Fieferee or Examiner, or a Local Master, a Deputy Registrar 
 of the High Court or a Deputy Clerk of the Crown, or l)efore 
 the Judge of the County Court of the county, and to submit 
 to be examined upon oath as to the estate and effects of the 
 debtor, and as to the property and means he had when the 
 debt or liability aforesaid was incurred, and as to the pro- 
 perty or means he still has of discharging the judgment, 
 and as to the disposal he has made of any property since 
 contracting the debt or incurring the liability, and as to 
 any and what debts are owing to him. The examination 
 is to be for the purpose of discovery onlj% and no order is 
 to l)e made on the evidence given on such examination. 
 
 An order under this liii/i' should not ho made uithoilt notice to the trans- 
 feree; iKir without ])r()()f that tlie transfer was made after tlie date when the 
 liability of the judgment debtor was incurred : Jilukclni v. lilnasc, \'l 1". H. Tifio. 
 
 A chattel mortgage is a transfer of property and effects within this Rule : lb. 
 
 Wiiere a garnishee^ has been ordered to ])ay over, he becomes a judgment 
 debtor, and may be exaniined under this linle : Coirmi v. i'luiil/, ,52 L. T. N . S. 
 431 ; 38 W. K, 083. 
 
 (2) Any person liable to be examined under this Rule may 
 he compelled to attend, testify, and to produce books and 
 docnments, in the same manner and subject to the same 
 rules of examination and the same consequences of neglecting 
 to attend or refusing to disclose the matters in respect of 
 which he may be examined, as in the case of a witness. 
 49 V., c. 16, s. 12. 
 
 This provision being remedial, is to be construed so as to advance the 
 remedy given by it, so far as the fair meaning of the words will permit : 
 OomM V. Burnet, 12 P. R. 330. 
 
 It hivs therefore been held that the word " transfer" in this liule should not 
 be limited to the transfer of the title to the projierty or effects, but should be 
 regarded as e(iually ajjplicable to the trr.nsfer of t\\<^ possession, and then^fore a 
 solicitor to wlicjin under a power of attorney to receive it, the consideration 
 money on a sale of property had been paid, was held to be examinable : lb. 
 
 But "transfer" in this Rule does not cover an "assignment" for the 
 general benefit of creditors, as such an assignment virtually ends all litigation 
 with resiHJCt to property and effects of a debtor, and this Rule is only to aid 
 
 j.A. 47' 
 
 \ 
 
 •••• 
 
¥ 
 
 738 ENFORCEMENT OF JUDGMENTS. 
 
 Rules a judp^nipnt crerlitor in proct'oflinjy agiiiiist tlu' (Icbtdr's proiwrty, wliich lie cm 
 
 929-931. 11(1 loiiM'crdo iiftiT Ji valiil aHsi^'imiciit for all ci'fditdi's ; linlish i'din, L. d' I (',. 
 V. Jiritiidl (Hoyd, C, 3r(l Dec, IHSil). 
 
 If the oi'ijfiual order iw not kIh'Wii at tliv time of Hcrvici' of ii c'(i|iy, tlic pcrsdii 
 served cannot ]h'. brought into contempt for disobedience of it : Bluktleii v 
 Blaanc, 12 1'. K. f)05. 
 
 e 
 
 at°t"nd-"'"^ !>2SK Any person liable to be examined under any of th. 
 
 ance. preceding Pailes may be compelled to attend and testify, 
 and to produce boolis and documents, in the same niamier 
 and subject to the same rules of examination, and the same 
 consequences of neglecting to attend or refusing to disciuse 
 tbe matters in respect ot which he may be examined, as iu 
 the case of a witness. J. A. Rule 368. 
 
 Tlie jn'ocedure by this l{ii/<' directed to l)e followed is that provided in ciuse 
 of exainiuation t)f parties generally: Itidrn 4K7. 4!l(). In Knglaiid tiicic is no 
 corresponding jn'ovision with references to the |)resent subject, but tiiere, also, 
 the del itor or other person to bi' examined is entitled to conduct uuinev. An 
 attiichmeiit was refused for disoliedience to an order to coiiK^ up to l/mdon 
 for examination, without an affidavit shewing tender of conduct luoiicy, and 
 reason for not examining the debtor at his own residence : Frotector Eiulowmmt, 
 Co. V. Whitlam, 3() L. T. N. S. 4(i7. 
 
 Service of 
 appoint- 
 ment. 
 
 0:iO. Any person liable to be examined under Ihiles 926 
 to 928 may be served with an appointment signed bv the 
 Judge or officer, and where the examination is to take iilace 
 under an order, also with a copy of the order; such service 
 to be made at least 48 hours before the time appointed for 
 the examination ; and the person to be examined is to be 
 paid the same fees as a witness. J. A. lUile 3(59. 
 
 Insufficient service is waived by attending and submitting to be examined; 
 Dai/ foot V. Jii/rnm, 7 C. L. T 21. 
 
 An appointment signe.l liy the Judge or officer is what is required to he 
 served, not a copy, nor a subixBiia, nor copy : Mtiicrg v. Kcndrick, !* 1*. K. 363. 
 
 As an original ajipointment is required to be servt'd, it would seem advisable, 
 ill order to prove service, that the ai)pointmeiit should be signed by the .Judge 
 or officer in dui)licate. 
 
 An order to examine a defendant <as a judgment debtor, and an appointment 
 under it, are together equivalent to an order that the debtor should attend on 
 the day mentioned in the api)ointiiieiit : lie Ouithitui Harristcr Co. v. ('ompbell, 
 12 P. K. ()»■)(>. Where he attends and offers to be examined, the force uf the 
 order is spent, and to obtain a fresh appointnieiit a fresh order is necessary ; /4. 
 
 Mode of ^^ ?>3I. The examination shall be conducted in the same 
 examiim"^' manner as in case of an oral examination of an opposite 
 *'°" party ; and iu the case of a judgment in any County Court, 
 
 such County Court or the Judge or acting Judge thereof 
 may exercise similar jurisdiction in relation to such judg- 
 ment, and in like manner as might be exercised by the Hipb 
 Court. R. 8. 0. 1877, c. 60, s. 306. 
 
ATTACHMENT OF DEBTS. 
 
 789 
 
 tv, wliicli lie can 
 'I'Com. L.&I.<i< 
 
 The examination hIioiiM nut he so conducti'd as to try to ei'i,rai) tlic debtor, Rule 933. 
 but it HJiimld i)c full, fairiiiid sciircliiuK ; '''ndinni, v. Devlin. \'i l*. R. 215. 
 
 , c'djiv, till' |i(TS(in 
 )f it': Jih'hkii V. 
 
 ler any of the 
 I and testify, 
 same maimer 
 and tlie same 
 ng to disclose 
 amiued, as in 
 
 t in-ovidcd inca.se 
 igliiiid tliiTc is no 
 ct, Imt tlicri', ttlso, 
 ulnct money. An 
 nw n\f to Ijondon 
 nidiict money, and 
 rohctor Endon'incnt 
 
 ider lUiles 926 
 signed by the 
 is to take place 
 such service 
 J appointed for 
 mined is to be 
 ! 3(50. 
 
 ng ti 
 
 lie examined: 
 
 it is re(iuire(l to be 
 »(/r/cA-, !)P.R.363. 
 
 Id seem advisable, 
 igned by the Judge 
 
 xnd an appointment 
 i,r should attend on 
 (Htri-Cd. v.CinniMl, 
 led, the force of the 
 der is necessary ; id. 
 
 ,ed in the same 
 of an opposite 
 County Court, 
 , Judge thereof 
 n to such judg- 
 sed by the High 
 
 OJia. In case such debtor does not attend as required by 
 the 'said appointment, or appointment and order, as the 
 case may he, and does not allege a sufficient excuse for not 
 attending, or if attending, he refuses to disclose his property 
 or his transactions respecting the same, or does not make 
 satisfactory answers respecting the same, or if it appears 
 from such examination that sucli debtor has concealed or 
 made away with his property in order to defeat or defraud 
 his creditors or any of them, the Court or Judge may order 
 the debtor to be committed to the common gaol of the 
 County in which he resides, for any term not exceeding 
 twelve months ; or the Court or Judge may, by order, direct 
 that a writ of capias ad satisjacienduni may be issued against 
 the debtor, and a writ oi capias ad satisfaciendum may there- 
 upon be issued upon the judgment, or in case the debtor is 
 at large upon bail, the Court or Judge may make an order 
 for the debtor's being committed to close custody ; and the 
 sheriff, on due notice of the order, shall forthwith take the 
 debtor and commit him to close custody until he obtains an 
 order of Court or a Judge's order for again allowing him to 
 go out of close custody, on giving the necessary bond in 
 that behalf, or until he is otherwise discharged in due course 
 of law. R. S. 0. 1877, c 49, s. 18; c. 50, s. 305; J. A. 
 Kule 369 (a). 
 
 The broad test to be applied in gauging the character of the answers, in order 
 to determine whether tliey are satisfactory, is, having regard to the circum- 
 stances of each particuhvr case, are the answers sufficient to satisfy the mind of 
 a reasonable person that a full and true disclosure has been made ; Oruham v. 
 Divlin, 13 P. R. 245. 
 
 Answers are not " unsatisfacstory " because they do not account for the appli- 
 action of the debtor's assets in a jjroper manner : Ildhbx v. .Scott, 23 U. C. Q. B. 
 61!) : but see Crookx v. Stroud, 10 P. R. 131. The debtor must have contumaci- 
 ously refused to answer, or so equivocated as to render his .answer no answer 
 at iill : Lcnmi v. Lemon, G P. R. 184 ; see also Merrill v. Mcrnrrcn, 1 C. L. T. 
 133; Bmitic v. Barton, 2 G. L. T. 104, .and the authorities fully reviewed in 
 Schneider v.Ayufw, a P. R. 138. Where the defendant, a widow, was shewn to 
 have received !*5()0 insurance money payable on the death of her husband, part 
 of which she had lent to her brotlier, part she had ex])ended on clothing for 
 herself and children, and the remainder, .lilOO, she still had, but refused to apply 
 on the judgment, .as she had no other means with which to su])port herself and 
 three children, an order to commit for unsatisfactory answers was refused : 
 McKai/ v. Atherton, 12 P. R. 4G4. 
 
 It IS the debtor's duty to furnish such explanation about his affairs as will 
 pla^e his de.alings in an intelligible shape, and not leave his creditors to find out 
 as best they may, what it is the business of the debtor to make clear. It is not 
 enough for the debtor to say, touching any tr.ansaction, that he does not know, 
 OT does not remember, if he has the means at hand to qualify himself to explain : 
 Foster v. VanWormcr, 12 P. R. 507. He must produce books, etc., which will 
 
 Committal 
 of dobtor 
 for non-at- 
 teiidauue, 
 refusal to 
 answer, 
 answering 
 uuRatiBfac- 
 torily, etc. 
 
 Unsatisfan- 
 tory ans- 
 wers. 
 
T 
 
 
 740 
 
 Rules 
 933, 934. 
 
 Motion for 
 coiiiiiiittal. 
 
 Commiital 
 of ofUi'( r of 
 corponi- 
 tioii in lilio 
 tuanutii'. 
 
 JudgmentM 
 for iiay- 
 iiiuntof 
 money or 
 costs to bo 
 within i)re 
 cedinR 
 liulos. 
 
 ENFOBCRMKNT OF JL'DOMKNTH. 
 
 I'lialilc }iiiri toiinswor, and Nuliinit to I'Miininiitiuii iipon tlicni : hw /tii»iiell \- 
 Muftldiiiilil, !•_' I'. |{. 4r)S : iiiid nny (|nf.stion fiiii'ly piTtini'iit, and |ir(i|j<ilv 
 Hskfd with a \icw to ascicrtain fnll iiarticulaiM of wliat dfhts llnic aiv imil 
 whicli of tlioni may ho attaclifd, niUNt Ih' aiiMwcrt'd : Iliji. uf I'lmUi Jtmi \ ,sy,i,«, 
 /«■/•;/, 1(1 Ch. D. H '; 43 L. T. N. S. 3!»!l. 
 
 Wlicro particulai'H, wlicrcin (liHatinfacti(Pii Ih felt, Inivc lii in iioiiitcd out, im 
 opportunity Mlioidd lio Ki\<'" *<' t'"' dflitcr of rtconcilihH- w liat may Ijc (dii- 
 ccivcd to !)(' contradictions, or supplying wliat may appear to lie adniiKsicjnii' 
 Uiu/iKiii V. /hr/in, 13 1*. \i. 21"). 
 
 WluTe answers wcr(^ fonsidered unsatisfactory the .lud^e allowed dcfi'iidinit 
 a week tu pay costs (jf e.\aniinati(in and of the motion and attend iijrain .iinl 
 frive further information hefure inakinj,' an order cii tlie njotinn to iiiect tin 
 jllsti(teof the case : /)i/iiir,il v. Jiiirll, !» ( !. L. '|'. 141. 
 
 An ordei' foi' committal for a fixed period, is said to he the ap|iriipri,iti' |iiiiii>l|. 
 ment anthori/ed liy this Ituh ; an order for a writ of attaclinienl re(|niniiK the 
 Sheriff to hold the debtor in custody fur an indefinite perioij was jicld xi,\r 
 improper: J{i('/i(tlli<iiii Jlarnuhr Cii. v. ('<iiii/il,i//, 12 T. I{. (Kiii. 
 
 A notice of motion, seeking' r -lief on tiie (ground of >msiitisfaclni\ answer-, 
 HJioidd particularize the answers complained of: Fim/ti- v. I'diiH'cniin; V 
 
 1'. n. 5! 17. 
 
 The a|)plication is to a .ludj,'!^ in ('hand)ers : set A'. ('. /linil,- \. Lm-hmni,' 
 V. 1{, 1(12. It may he made at the time of tiie exandnation and u ilhout fintlur 
 notice, if the officer liefore whom the examination lakes jilace has inriMiictinn 
 to entertain it, r.;/., in ( 'ounty ( 'oint cases, where the examination is hifuntlu 
 .Iiidj,'!': I'<iiiti<)i v. Jlii/liii, 2 K. it A. 37!'; Jlninl v. .V/n///, 23 l'. ('. i). I!, (iL't. 
 
 .An orrler to commit must Ijp ahsolute not upon a condition, <.(/., unless the 
 debtor forthwith ^,'ives a note : Chivhinti r v. iiurilmi, 25 I'. C (,». ji. '>'Si. 
 
 A inai'iied woman is liable to l»^ committed: Mitro/ni/ilnii L, <i- S. Co. \. 
 Miira, 8 1'. K. 305 ; Dillua v. I'ii)niiii(ili<nii, L. H. « Kx. 2.3. 
 
 The comiidttal is for a contempt, iind the fact that the jndKiiient is one fur 
 >Cf)sts does not make the committal an imprisomneiit for non-pavnient ef costs; 
 J'ad-xna v. Exscril, 12 V. 1{. 4(;(). 
 
 Oi{:{. In case any mmh officer of a corporation as afove- 
 said does not attend as required by the said apyioiiitiiieiit or 
 appointment and order, and does not show a KiiliiciHit 
 excuse for not attending, or if attending, he refuses to dis- 
 close any of the matttirs in resi)eet of which lie may be 
 examined, the Court or Judge may order the oflicer to be 
 (tominitted to the common gaol of the County in which be 
 resides, for any term not exceeding 6 months. It. S. 0. 
 1877, c. 49, s. 19. 
 
 !i:S4. Every judgment or order of the High Court and of 
 the County Court directing payment of money or of costs, 
 charges, or expenses, shall, so far as it relates to such money, 
 costs, charges, or expenses, be deemed a judgment, and tbe 
 ])erson to receive payment a creditor, and the person to 
 make payment a debtor, within the meaning of the preceding 
 liules. K S 0. 1877, c. 49, s. 20. 
 
 Notwithstanding the wording of this Jliilf it has been held that where jiuig- 
 ment is recovered for costs only, the judgment creditor has no right toexaunnt 
 the judgment debtor: Troutman v. Fiskcii, 13 P. K. 153. 
 
 See notes to Rule 926, p. 7r,). 
 
ATTACIIMKNT OF DEIVJ'H. 
 
 741 
 
 ((() In ciiHo a jiidjMuent or ordor dirocts the payment ()fR«^«936. 
 money into Court, or to the credit of any cause, or otliervviHe 'lavhlU mr- 
 tliaii to any person, tlie person liavinj^ the earria{j;e of the j;';,^,'^^^;,;;[,,\'''' 
 iiKli'iiiont, or order, so far as rehites to such payment, slial I "t*^^. <"'•"' 
 bedueined tlie person to receive payment witlnn the mcanuij:; i.oison to 
 of tlie preceding clause of this iliile. 11. S. O. 1877, c. 4i), [."aymont. 
 s. 20, ('2). 
 
 Sci' imti's til Itiilc !•-*(), 1). 7;<">. 
 
 IHJ.I. Tlie Court or a Judge may, upori the ex. parti'. c<mrt or 
 applii'iition of the judgment creditor, or the person entitled '!n-',\^r ,[T^ 
 to enforco the judgment, either heforo or after the oral .'.'J' jXts'*' 
 exaininiition in the i)receding Rules, and upon affidavit hy 
 liiiKself or his solicitor, (^0 [or some other person or persona 
 aware of the facts respectively, j stating that judgment has 
 been recovered, and that it is still unsatisfied, and to what 
 amount, and that any other person is indehted to the judg- 
 rae:t debtor, and is within Ontario, order that all debts owing 
 or accruing from such third person (hereinafter called the 
 garnishee) to the judgment debtor, {h) (and all claims and 
 (ttmands of the judgment debtor against the garnishee 
 arising out of trust or contract, where such claims and 
 demands could bemade available under equitable execution,.; 
 shall be attached to answer the judgment debt ; and by the onier that 
 same or any subsequent order it may be ordered that the appear'.'^** 
 garnishee sball appear before the Court or a Judge or an 
 officer of the Court, as the Court or Judge shall appoint, to 
 shew cause why he should not pay the judgment creditor, 
 or the person entitled to enforce the judgment, the debt, 
 claim or demand due from the garnishee to the judgment 
 debtor, or so much thereof as may be sufficient to satisfy 
 the judgment debt. J. A. Rule 370. 
 
 Tlie passage in brackets at (h) is new. 
 
 Tiie ItulcuUt'TwiHO corresponds with the Eng. R. 1875, O. 45, r. 2, (1883, R. 
 (122), and iilso witii H. S. (). 1877, c. 50, ss. 3I»7 antl 308, except that those 
 section!' ihd not contain the passage in brackets at (a) owing to tlie absence 
 I'f wiiich the affidavit was reiiuired to be bv the creditor or his solicitor : 
 Builder V. A'/w, 7 p. R. 323; Bo.i/d v. Jliii/ne^, 5 P. R. 15. 
 
 Soopa of the Rule. — The judgment creditor here mentioned is apparently a 
 juilgment cre(nt()r wiio may examine his debtor under Rule !)2(), and therefore 
 whether process by attachment under this Rate can be employed where the 
 judgment or order of the creditor is only for costs has been questioned : see 
 (Ihent V. MrCll, 8 P. R. 428 ; Mei/'^rs v. Keiidrick, l) P. R. 3G8-!), and other 
 cases cited under Rule \)2(>, ]>. 735. Hue also Rule 8(12. 
 
 A judprment n pr recovery of land and awarcii'.ig costs has been held to be within 
 this Rule: Llm/,/ v. \V(til(tir, P. R. 33.5, and also a rule giving costs of the 
 (lay to the defendant : Klliot v. Capell, 9 P. R. 35 ; see also WhittaUr v, 
 nhMuker. 7 P. D. 15 ; and Manchester, etc. v. Parkinson, 22 Q. B. D. 173. 
 
 /otA- /J ' / 
 
742 ENFORCEMENT OF JUDGMENTS. 
 
 Bule 936. The word.s "the person entitled to enforce the judgment" include an 
 assignee of the judgment; Gaodmaii v. Uobinstm, 18 C^. B. 1). 332. 
 
 It will be seen that the scope of the original Rule. 370 is intended to he verj' 
 much eidai'ged by t' > nevv jjowers conferred by this Rule of attaching,' elaiins anil 
 demands not being debts, but being interests which could fonncrly have been 
 made available under equitable execution. Tliis extension of t!.;' HhIc^ tinw 
 includes a subject so different from the ordinary and tolera'.ily well inidei'stuod 
 practice of attachment of debts that in working out the Riik it williirobably be 
 foimd to really include two distinct subjects : 
 
 (1) Attachment of de.lits as previously understood ; and, 
 
 (2) Summary process of equitable execution in case of claims or (leuiands not 
 being debts. 
 
 In either case only such jji-operty can be attached as the debtor could deal 
 with (iroperly, and without violation of the rights of other persons, at the time 
 the attaching order is served : see Jiadrln/ v. (muiiiUdati-d lUtnL-, 34 Ch. D.Mfi; 
 
 D. .')12; l>v v. A'/v.OTi, 13 
 
 I'arlccr v, //»«•-■, 12 P. K. 
 
 Attach- 
 ment of 
 debts. 
 
 Affidavit. 
 
 No distinc- 
 tion be- 
 tween legal 
 and equ:l 
 able debt''. 
 
 38 Ch. D. 238 ; Re 'Jencral HorlicuUiiml Ci>., ,32 Ch. 
 Q. B. D. 1!I0 ; McCraney v. McLeod, 10 P. R. .541 
 351, and Ride 03G. 
 
 Attachment of Debts. — This Ride will be ap))lied as formerly where the 
 interest of the debtor is in the shai)eof a debt wiiethev legal or etiuitable : see 
 cases infra of matters held attachable, but the former cases in which interests 
 were held to be not attachable nnist now Ve considered as merely antliorities 
 th.it such interests are not attachable as debts; tliey may under the jiresent 
 Rule sometimes be attachable as claims or demands which might fonnerly have 
 been the subject of equitable execution. i 
 
 The affidavit for an attaching order need not state tlie amount of tlie del)t< ; 
 Luci/ V. U'liod, 28 Sol. Jour. 32(> ; W. N. 1884, ,58 ; and will bo s\ifficient if it 
 states tliat the de])onent is informed and believes that the garrii.shee is iiidebtwl 
 to the judgment debtor : Curen v. lianij, 22 Q. B. D. 24!). 
 
 Since I'he Judicature Act the power of garnishing debts has been very 
 extensive. The word debt has a more extended meaning than it had at the 
 time of the j)assingof the original garnishee clauses in tlie C. L. 1'. Act. .Since 
 the re-enactment of those clauses therefore in the Rules a creditor may attach 
 any debt due l)y any other jier-son to his judgment debtcu", making no (listiiiction 
 between legal del)ts, garnisliable under the C. L. P. Act, and e(niitiil)le delits ; 
 Leamiud v. W'l.im, 7 Ont. Ai)p. 42; Wilsi.n v. hundin; W. X. 1875, L'32; 
 Summers v. Mar/iliew, 01 L. T. ,Tour. 140; Re Cnwuirs Estate, 14 Ch. D. 038; 
 Hamer v. (lUcs, 11 Ch. D. 942 ; \Vet,b v. .Steiitou, 11 q. B. D. .518. 
 
 In the Canada Cuttim Co. v. Parmatee, 13 P. K. 2(), it was held tliat insurance 
 moneys unadjusted, and not in respect of an admitted claim, were not attacliable 
 under the provisions of the present ^(/^, Ijut an oi)inioii to the contrary wius 
 given on apjieal to the Divisitmal Court, C. 1'. 1)., which has been folhjwed 
 m Yinniijw. Vaunn, (iiaXt, C..T., 24th October, 188!iV No order was, however, 
 madi by the Divisional Court, oii the ground t\v,^ it did not sufficiently 
 apjx^ar that the garnishees, a foreign insurance oonqjany, were "within 
 Ontario." (Dec. 1H8!». ) Possibly, therefore, the i)oint can not hi' considered tn 
 be settled, whether an immature legal claim, whicii lias not rii)eiied into a debt, 
 and by jKJSsibility may never do so, would formerly have been a subject of 
 equitable execution, and so can now be attached. 
 
 It was formerly licdd that money in the hands of a receiver could not be 
 attached ; Russell v. I'litst A a/lian Ri/. Co., 3 Mac. & C 104 ; Ames v. Birkfu- 
 head Doeks, 20 Beav. 332 ; Re Hunter v. (/remsdl, L. K. 8 C. F. 24 ; Jnnr.i v. 
 Rroim, 2!) L. T. N. S. 7!) ; see French v. Lewi.i, l(i V. C. (}. B. r)47. But in 
 Re Cowan's Estate, 14 Cli. I). (i38, it was held by Hall, V.-C, to be otherwise 
 under The Judicature Act ; and a receiver in an administration action, wlio liad 
 been directed t': jiay money to a legatee was directed to pay the same to judg- 
 ment creditors of the legatee. Hall, V.-C, held that tlie Rides as to attach- 
 ment of debts "are applicable to a fund payable under an order of tiie Court, 
 but in the hands of a receiver, just as much as if the fund were not in Court, 
 but in the hands of a trustee whose duty it was to pay it over to tlie debtor." 
 
 IB^ 
 
ATTACHMENT OF DEnT:3. 
 
 743 
 
 ms or (Icmands mit 
 
 He (hwinn listalc was apprrved anl fi'Uiiwod in Lerimin;/ v. Wonn, 7 Rule 93S. 
 Out. Apji. 42, where nruiey payablo to (t., as rents of real estate of which a 
 receiver lia'l l)?en ai)p')inte;l, were hul'l attacluilile in the hanla of the receiver 
 l)V execution ere;litor.-' of (t. In fJ'iirt v. W'ltliic-r, !( F. R. .SIJ"), followinfj some 
 expressions of opinion in the two last cases (which do not Keeni to have been 
 necessary for tlieir decision), money in the hands of a trustee, thong'h not yet 
 due titt\wi-iKliiii/nr triiKf, was lield t', he attachal)le. In the? hiter case, liowever, 
 of Wrhii V. Slfii'oii, 11 <i. IJ. D. 'tis, tiie Court of A{)peal ap|)rov(!cl of Itr CaiKOi's 
 Eiitale, only so far as it decided that a debt due, whether it be lepal or ecfuitable, 
 is attachable; and ]V<lth v. StmUtu has now in Ontario been followuf'. in Stunn ' 
 V. (irawili, b") Out. A|)p. 2!)',). [t is probable, however, that such an interest as 
 was in (inestiou in Rr Onmns Estate or in S/nart v. (roiii/h may bo attached 
 uiuler tlie extended terms of the i)resent liiile, though iiot as a debt. 
 
 Before the .Fudicatnre Acts, it was held that on a judgment against a com- 
 pany, money in the iuinds of an official liquidator might be attached : K.c piirte 
 Tnrnei; 2 I). V. & J. S.')! ; and though this was afterwards (piestioned in He 
 ibmtirs.Hrrcnsill, L. K. 8 C. P. 24, The JioliaUurc Acf or the present Jiule 
 will iirobalily be held to have removed any difficulty in holding the money 
 to be attachable. 
 
 X fair test as to a debt being attachable has been said to be, whether tiie debt 
 is capal)le of being tlu' subjc^ct of a set-off : Wibxtrr v. Wehntcr, 31 Beav. 3!)3 ; 
 MfNdwihton V. Wi'hKt>;; (> U. C. L. .1. 17 ; see also Parker v. Jlowe, 12 P. R. 
 at p. 35.3. 
 
 The debts whicli the Court or Judge is empowered to atta(di under this Jtiile 
 are debts owingor accruing to tiie judgment debtor, whether legal or equitable, 
 wliich includes any moiu^v, or a fund in which lie is interested, and for which 
 he can sue, as well as debts ascertained to be .so. 
 
 The delit nuist be an absolute and i)erfectod debt, not merely a conditional 
 one, ('.'/., payable upon the execution of a conveyance : Hoircll v. MitrofioliUm 
 IHxtrM Itii. Co., V) CI: 1). oOH, and must be owing to tiii^ judgment debtor 
 alone. Wiiere it is due to him jointly v'*-'! another person it cannot be 
 ;vttHclied : Mucihwald v. Tacqnah 'I'lild Mhu.^ ( 'o,, 13 Q. B. I). 5,3.5. 
 
 The Hull' applies to del)ts accuing iis well as debts actually owing: see 
 .S/iifH-.i V. YoHinjc, H Ir. C. L. 251 ; Tapp v. Jours, L. K. 10, (^>. B. 5!tl ; c.r parte 
 JmihiiK, S Ch. 1). .'?27 ; but a fuliu'e del)t, /.''. a debt whicli has no present 
 existence but can only arise on the happcaiing of some future event e.'j. moneys 
 which may in the future come into tlie hands of a trustee for the benefit t)f his 
 ctstui ijiii' trust, could not be att.iciied formerly : Fcl'oirs v, Thuriiton, 14 
 il B. 1). 8H5 ; but sueli claims hav.' b(M'n made av.ailable under ecruitalde execu- 
 tion liy tile aiipointment of a receiver: /i/nrk v. ('cr, before Kobertson, .1., 
 .see .ludfrmeiit Hook Ciiy. I). No. 12, fo. 2,S ; an<l it is ))ossible may now l)e 
 nttachable ; and see .NV'.sA v. /V(0'w, and IJoi/d v. Wiillarr infni. Debts due, 
 but not |iayalil(! till a future time, may be ordered to be jiaid at sucli future 
 date ; and it is not necessary to wait and obtain a fresh order for payment 
 ofpiicii iiistahuent as it becomes payable: Ta/ip v. Joins, L. K. KH}. ]\. 51)1 ; 
 see aki, l!r Coinin's h'statf, and Ltamiiui v. Wood, suprii ; llnnth v. Trail, ^2 
 <J. B. I). H, and Rulr i(3S ; but the garnisiiee cannot be compelled to pay before 
 credit ^'iven to iiim has e.xpired : llnr<linii v. Jiarmfl, 3 U. C. L. .1. 31." 
 
 Wlicre a cheque was given and duly jiaid, it was held that there was no debt 
 between the time of giving it and the tim« of i)ayinent, and no duty upon the 
 drawer of tlie checpie to stoji (laviuent on being served with a garnisiiee order : 
 Elmll v. Jaokson, 1 Cab. & El. ■3(12. 
 
 Where, before an attaching order issued, a legac ,• w.as payaVde to the defen- 
 dmt, and lie li il mi 1" a s;'ttli'in 'ut of it, it was lield that no delit was due from 
 the executor of the will to the defendant, as even if tiie .settlement were .set 
 aside by the plaintiff, there was no ground for saying that the executor was 
 obliged to pay over to the defendant. The defendant could not revoke the 
 settlement, and eveii 'f it were .s' t aside as void against creditors, it would lie 
 still valid as lictween the e.xecutor and the defendant : Vim' v. Brown, 13 
 <•;. H. I). l!l!» ; 1 Cab. & Kl. 225. 
 
 Where the trustees of an annuity, p.ayable to a judgment debt(n' half- 
 yetirly, had advanced to him more than was pay.able at the end of the last half- 
 
744 
 
 ENFORCEMENT OF JUDGMENTS. 
 
 Rule 935. yearly period, it was held that nothing was attachable as eitlior owirifr or 
 accruing : Wchh v. Steiitmi, 11 C^. B. D. 518 ; see Booth v. Trai/, KUjini. So a 
 salary vvliich is not i)ayable till earned is not attachable as a debt before the 
 date when it is payable : Hdf/ v. Pritrhctt, 'i t^. B. D. 215 ; SIudi/i;/ v. J/oorc, !» 
 U. C. L. J. 2()4. But a debtor's interest in a trust fund not yet piiyiilile Uv the 
 trustee has been held to Iw attachable : J\<(sh v. Pearsv, 47 L. .1. C). 15 700 • 
 Lloiid V. W'allaci; it P. R. 335. 
 
 An order to attach a debt maybe made, notwithstanding that six years have 
 elapsed since the judgment was obtained by the judgment creditor : Fellows v. 
 Thortitun, supm. 
 
 The following have also been held to be attachable as debts : — 
 Attachable Rent due by a tenant : Mi/chdl v. Ltv. L. R. 2 t^. B. 25!t ; l)ut not rent not 
 debts. due: Coiniiurcinl Bioik v. Jorvix, 5 U. C. L. .T. (10; McLarin v. Sudirnrtli, 4 
 
 U. C. L. J. 233. But since tlie Act, now R. S. O. 1887, c. 143, s. 2, by which 
 rent is made a|)iM)rtionable, it may be attached as a debt accruing between gale 
 days ; and the judgment creditor is entitled to be paid on the gale day such 
 l)ortion .as had accrued d\ie on the day of service of the attachment ; Mansif v. 
 Toronto Printinii Co., 12 P. R. 12, but qnnre whether rent could be garnished 
 as against a mortgagee of tiie landlord : lb. 
 
 Money in the hands of a Sheriff, tiie jiroceeds of an execution levied by him : 
 Murmii V. ISimpKon, 8 Ir. C L. App. xlv. ; lie Hiuurt v. Milln; 3 V. H. .'Wi"), or 
 in the hands of a Division Court Clerk : Blund v. Aiulrt ten, 45 U. C. <^. 15. 431, 
 or Bailiff : Loekhiirt v. (I rail, 2 C. L. .1. 1()3, though the contrary lias been lield 
 in Ilngland : Dolphin v. Lai/toii, 4 C. P. D. 130. 
 
 Money in the Iiands of a receiver : Be Comin Estate, 14 Ch. D. ()38 ; Lmmimi 
 V. Wooii, 7 Ont. Api>. 42, .v((/ qmvrc whether now only under tiie extended 
 powers given by this Bute, aud not as a debt : see Wilili v. SteitUiU, 11 (^. ]?, T). 
 530 ; Stuart v. (irom/h, 15 Out. App. 2!(!l ; or official liquidat(jr : e-.t finrti Tiiritn, 
 2 D. F. & J. 354 : see Mar/c v. Ward, W. N. 1884, 10; and .Siwirl v. McKim, 
 8 Ont. 730. 
 
 Rents due to a mortgagor before a notice given by the mortgagee to the 
 tenant to pay subsequent rents to him: Patterson v. O'JleiUij, in note to sec. W, 
 sub-.sec. 4 of the Act. 
 
 Surplus money in the hands of mortgagees after sale under a power in mort- 
 gage : Nicol V. Eu-in, 7 P. R. 3.31 ; see AfcKaii v. Mitchell, U. C. L. J. (il ; 
 See also Chatterton v. Watne'/, 10 Ch. D. 378 : 17 Cii. \). 25!), when' it was 
 held that a judgment debtor, who had obtained a garnishee order against a 
 mortgagor debtor of his debtor, was not entitled to surplus proceeds of a sal" 
 by a prior mortgagee, which took place after his garnishee order, but the 
 holder of a garnishee order obtained after the sale against the prior niortgajree 
 was entitled. 
 
 Dividends on Bank stocks : Salamon v. Donovan, 10 t. C. L. R. App. xiii. 
 
 Money in the hands of Bankers: Be United Em;, a- Scot, Jns. Co., L. R. 6 
 Eq. 300 ; L. R. 3 Chy. 787 ; Miller v. Httddle»tone, 22 Ch. D. 233. 
 
 Money payable under a ccmtract for work done for a Municipal Corijoration : 
 .Uden v. Boomer, 2 P. R. 330. 
 
 Money due to a Railway Company for the purpose of distriViution among its 
 shareholders under an agreement sanctioned by Act of Parliament, nuiy be 
 attached by a creditor of the Company : Bouch v. The Seven Oaks, etc., Bailway 
 Companij, 4 E.\. D. 133. 
 
 Money in the hands of an agent in this Province may be garnished where the 
 garnishee resides out (jf the jurisdiction : liniwn v. Merrills, 3 U. 0. L. J. 31; 
 but not where the garnishee is a foreign corporation : Bank of llritish Sorth 
 America v. Laiajhrey, 2 C. L. J. 44 ; I.undy v. Dickson, U. C. L. J. 92; and 
 see Canada Cotton Co. v. J'annalce, supra p. 742. 
 
 U]K)n a judgment against an executor as sucli, a debt duo to tiie testator's 
 estate may be attached : Burton v. Roberts, H. & N. i)3 ; Fowler .: Bnlicrtn. 2 (iiff. 
 22() ; Tiffan// v. Bullen, 18 C. P. 1)1. The order in such case should show on 
 its face that it is directed to the executor as such : Stevens v. Phelips, L. R. 10 
 Chy. 417. 
 
either owing or 
 
 ATTACHMENT OF DEBTS. 
 
 745 
 
 debts. 
 
 After tlie mialogy of a ,fi. fa. under which the goods of any one of tliose Rule 938. 
 against wlioiii it in issued may he taken, a debt due to one of several judgment 
 delitui'.s may l)o attached to satisfy tlie judgment against all : MitU'r v. Mi/im, 
 
 1 E. & K. 1075 ; liut a delit owing to two cannot Vje attaclied for the debt of 
 out-; Jli- '"^iiMii V. Miller, ;5 V. R. 385; .]/,■('<, niiiri: v. /'(ir/,; 'J C. P. 330; 
 Macihmald v. Tucqiiah Oold Mines CV<., 13 t^. B. D. 535. 
 
 As to pensions and superannuation allowances, see /»«Av v. Kaxt iniliit Co., 
 
 17 n. 15. 351 ; JJeul v. Dent, L. K. 1 P. & J). 3()(i ; Kx parte Ihnrker, L. R. 7 
 Ciiv. 214 ; W'illeneL- v. Terrell, 3 Ex. I). 323 ; .SuuKom v. i^aiwm, 4 V. D. C'.t ; 
 /;(■;•(■// v.Jiirrh, 8 P. D. I(i3 ; /.aras v. Harrin, 18 (,). B. ]). 127 ; 55 L. T. xV. S. 
 (;,W : i'roer v. Pria, 22 t^. B. D. 420; Uinitk v. 2'r«//, 12 (l B. D. 8; lie Webber, 
 
 18 (i. B. i). 111. 
 
 Full jwy of an officer in the Royal Navy on active service cannot be assigned 
 or attached : A/il/idrjie v. Ajil/ii,r//e, 35 W. R. 728 ; 12 P. I). 1!»2 ; nor the pay 
 of a retired officer in the Army : Cmwe v. /'riee, 22 (^. B. 1). 42!). 
 
 A debt of an unascertained amount if only it be i)ayabl(! as soon as ascer- 
 tained : Jii Siiln V. Ilabbaril, 8 P. R. 445 ; Maeplnrniin v. Ti.sdnle, 11 P. R. 201 ; 
 where costs remained to be taxed : Ke Withroiv, I'lyiielier v. hdnnrau, IOC. L. J. 
 It", 114, where the amount to be found due to a ))laiiititf who had been declared 
 entitled to a meclianics' lien, was attached. 
 
 The following are not attachable as debts, but as above menti(med may now Not attach- 
 be attached in many cases as "claims or (lemands formerly available under able as 
 equitalile execution." 
 
 Unliquidated damages : Jtihn.'mii v. /JiaDKnid, 11 Ex. 73 ; though secured by 
 ixmd ill a jieiial sum, fb: (irisimld. v. JliiJ/'al", liraiilfurd d- (Miiderieh Rif. Co., 2 
 P. K. 17f< ; thougji the amount has been ascertained by the verdict of jury or 
 award, but no judgment yet had been obtained to make the claim the debt : 
 ,/»«c.v v. Till, 1,1 /IS, ,11, E. M. &. E. ()3 ; JJre:ser v. Jnkns, 28 L. J. C. P. 281 ; In re 
 Xeimiin, 3 Cli. ]). 404 ; /ini/il v. J/ai/iiey, 5 P. R. 15 ; l\(te v. Oir/jnration uf 
 Tiiruiitu, 3 P. R. 181 ; Ilauk o/' Timiiitn v. Burton, 4 P. R. 5() ; (Jwi/nne v. Ree^-, 
 
 2 P. K. 282 ; Riiljert.s v. Cit// 0/ Tonnto, lO (ir. 230. But see lliillbii v. lliidijsim, 
 (11 L. T. X. S. 207, atfirmed in appeal 88 L. T. Jour. 33, where money duo 
 uiiflera judgir.ent pronounced but not formerly entered was held to be attach- 
 able; and see Canada Cuttun Co. v. Fariiialee, 13 P. R. 2(>, reversed in ajipeal, 
 (Dec. 188!)), and Voini,, v. Voiin;/, ((lalt, C..T., 24th October, 1880), wdiere 
 insurance moneys unadjusted, ancl not in resjiect of any admitted claim, were 
 held to lie attachable under the new clause contained in the present Eidc : see 
 note mipni p. 742. 
 
 Where a claim for work done under a contract, and one for unliquidated 
 damages are referred, there could formerly be no garnishment of the latter until 
 after award: Tale v. The Cnrporatinn of the Citi/ of Toronto, 10 U. C. L. J. 
 «•) ; 3 P. R. 181. See also Randall v. FMh'jow, 12 C^.' B. D. 525. 
 
 So any claim \vhich might or might not result in a debt, <■.'/., a notice to treat 
 under the l']iiglisli Lands Clauses Act, on which notice nothing had been done : 
 Ru-lmrdsiiii v. Klinit, 2 C. P. D. ; an unascertained balance due from one 
 partner to another : Campbell v. Peden, 3 U. C. L. J. ()8. 
 
 Salary not yet jiayable : Hall v. Pritchelt, 3 (.2. B. D. 215 ; Re Slianleij v. 
 ^'i«ire, !) U. C. L. J. 2()4. 
 
 A negotiable promissory note not yet due: Jaekson v. Cassidy, 2 Ont. 521; 
 Pijne. V. Kinna, 11 Ir. C. L. R. 40. 
 
 A legacy in the iiands of an executor unless there has been such an account 
 stated by the executors as would entitle the debtor to sue : McJJowall v. 
 lli>lh.ster, 25 L. T. N. S. 185. 
 
 Money deposited with a stock broker to secure any loss on speculations on 
 stocks and siiares, so long as the transactions in the stocks and shares are 
 oiien : IluU v. ,Shaw, 3 Times Rep. 354. 
 
 Money sent by a father to his son, the debtor, as a gift, through a bank, was 
 garnwlied hefoifs the debtor was advised (if the deposit ; it was held not gar- 
 luslialile, as the father had till then power to revoke the gift : Caisse v. Tliarv, 
 i P. K. 205. ^ ^ 
 
r 
 
 746 
 
 Sole 936. 
 
 Death of 
 garnishee. 
 
 Assign- 
 ment of tlu) 
 debt garni- 
 shed. 
 
 Set-off l)y 
 garnishee. 
 
 ENFORCEMENT OF JUDGMENTS. 
 
 Money in a bank at the credit of the judgment debtor, a stock brokor, wliidi 
 was shewn to be wliolly money of his clients : Hancock v. Smith, 41 Cli. I). 45(j 
 
 A debt due liy tlie garnisliee to tlie j\idgment debtor as executor : Maeanleii 
 V. Hiimhdll, lit C. P. '284; and a debt due to an administrator as s\icli, cannot 
 be attacheti to answer a i)rivate debt : liowman v. Bmcindu, 1 tljiy. Ch, 172. 
 
 Surphis, if any, after payment of the debts of A. by tlie terms of a trust deed 
 to be paid to B. : McKindiieii v. .1 rmdronij, 10 Ont. App. 17. 
 
 Money was held not attachable under a contract which was not performed 
 according to its ternn, i-o that nothing was due at the tune of tlie attacliius 
 ordt-r : see McCmtn'n v. McLend, 10 P. R. 53!). *• 
 
 The income of trust funds ])ayable to a wife for her separate use, sulyect to 
 a restraint against anticipation, accrued since a judgment against lier and her 
 husband, was held not attacliable, as otherwise it would be in .substance to 
 enable her to anticii)ate her income in violatitm of the restraint on .anticipation ; 
 Clid/imdu V. Bni<jg, 11 Q. 13. D. 27 ; see also Stanley v. Staii/ri/, 7 Ch. I). oMIt. 
 
 The allow'ance of a iuror is not attachable in tlie hands of the C'onntv 
 Treasurer : Fliillips v. Aiistiu, 3 C. L. T, 31(;. 
 
 Wages or .salary of servants, etc., to the extent of .S25, are not attacli.ihle 
 under R. S. O. c. ()4, s. 8. The salary of the secretary of a comiiany amounting 
 to £2W, payable ([uarterly, was held not within the meaning of a similar 
 Imperial protecting Act : Uonloii v. Jennitvjn, !) C^. 13. D. 45. 
 
 A garnishing order cannot be made attaching a debt diu; from a partncrsliiii 
 firm described by its partnership name : Walker v. Muokf, ti (.1 B. 1). (i31. This 
 is now otherwise in England under an express Rule, O. 45, r. 10 : see Snow 
 Ann. Prac. 188!t-!)0, p. 702. 
 
 A debt which is attachable does not cease to bo so because the debtor has 
 brougiit an action to recover it ; and the giving of a cheque by the giirnisliee 
 to tiie debtor, payment of which was stopped on service of the order nini, 
 was held not to prevent the debt fnmi being att.iched : ('(iliin »■. I/ulc, 3 
 Q. 13. D. 371 ; but it is otherwise wiiere acheciue has been given and accepted 
 in payment of a debt, though the cheque has not been presented : /i'/ifr// v. 
 JackHDH, 1 Times Rep. 4.54 ; 1 Cab. & E. 3(>2, and it is not the duty of the 
 garnishee to stop paj'menton being served with an order attaching debts : lb. 
 
 Tliere was formerly at law no power to order or permit a suggestion to be 
 entered of the death of a garnishee, so as to get execution against his repre- 
 sentative : lie Ward v. Vance, 3 P. R. 323 ; but that end possibly may now be 
 attained under Rule (i22. An executor or administratcn- of a judgment creditor 
 who lias not made himself a party to the judgment cannot proceed under this 
 Ride without making himself a party to tlie record : Jiai/iaird v. Sintiiiowh, a 
 Vj. & J3. 51). The creditor must be one who is entitled to enforce iniuiediate 
 ))ayment. Therefore the holder of a bond cif a corporation containnig a 
 condition that all bondholders should be paid pari paK-<u, was held not to 
 be such a creditor, .since an attachment winild have given liim |)riorityover 
 other bondholders: Kennett v. Westminster Improvement (t<jmiiii.^.ii(iiierit, II 
 Kxch. 34!). 
 
 A garnishingorder can only charge what the judgment debtor can honestly deal 
 with himself : Re (ieneeal Horticultural Co., 32 Ch. I). 512: llanoirk v. Smith, 
 ■tiipra. A debt, therefore, lmna,tide assigned, before the judgment, is not attache 
 alile : Hirscli v. Coates, 18 C. B. 757 ; nor a debt so assigned liefore the attaching 
 order: Wise v. Birkinnkair, 2!) L. J. Ex. 240: even though the garnishee had no 
 notice of the assignment; Pickerimi v. Ilfracotnhe Railira'/ Co., L. K. 3C. P. 
 2;«; Robin,Hon v. Neshitt, L. R. 3 C. P. 2(14 ; Broirn v. Mch'utUn, 5 P. R. 231; 
 ('.■r((nt V. McDoncll, .3!) U. C. Q. B. 412 ; or tlui assignment be attacked as a 
 fraud on creditors : Vi/nc v. Brown, 13 t^. B. D. 1!)!). 
 
 The Judge has no power to go into the state of the accounts between ths 
 garnishee and the judgment creditor, or to allow the f(jnner to (leduet any 
 amount due to him from the latter, but must order execution to issue for the 
 whole amount due from the judgment debtor to the judgment creditor: 
 Sampson v. Seaton <t' Beer Railwaii Co., L. R. 10 1^. B. D. 28. He may, how- 
 ever, go into the state of accounts between the judgment debtor and the 
 
ATTACHMENT OF DEBTS. 
 
 747 
 
 garnishee, and give effect to any set-off or cross debt arising before {lb; see Rule 936. 
 X'nth((n V. Uilrn, ;") TiMuit. 558), bnt not after : (I'lijip v. Joms, L, R. 10 ii. B. 
 5!)l),the date of the attaclung order. 
 
 Garnishee proceedings will not lie set aside after great delay : Rr (lordou v. 
 Bontcr, U. (". L. J. 112, and should not in any case be opened without 
 iirevious notice to all parties interested: Hank of U. C. v. Wallace, 2- 
 P. R. 3,^)2. 
 
 An equitable ciiarge given before a garnishee f)rder is obtained takes jiriority 
 of an order, even in the absence of notice of the cliarge : Buddcy v. Consul idatal 
 Bank, 34 Ch. I). 53{) ; 38 Cli. D. 238. 
 
 An attachment of a jiidg7r>ent over-rides a solicitor's lien or control over it in Solicitor's 
 reBpect of general costs : jJavi<lKon v. Dnwilan, 15 (ir. 347 ; Rc'l. v. Binnon, 2 li<^ii' 
 P.R. 3;")0; Bunk U. C. v. Wallace, 2 P. R. 352 • Cotton v. Vanntittarf, (J P. R. 
 %; Hmiiili v. Kdinirih, 1 H. & N. 171 ; Bitrciuii, v. Piuiin, 32 L. T. N. S. 405 ; 
 but the si)ecial lien for costs of the action in which the debt attached has been 
 recovered will be protected when the garnishee lias notice of it : The Jeff 
 Z)rti(,s, L. K. 2 A. & K. 1 ; The Leader, lb., 314 ; Canadian Bank of 
 Commerce v. Crouch, 8 P. R. 437; IShippei/ v. Crci/, W. N. 1880, •)!) ; 28 . 
 
 W. R. 877. 
 
 As to the effect of an attachment upon a solicitor's lien, see further 
 Hmtdh V. Edwardx , 1 H. & N. 171 ; Ehdell v. Coninnhavi, 28 L. J. Ex. 213 ; 
 Syiiipson V. Prothero, 2(> L. J. Chy. 071. Wliore 
 
 In an action in the High Court where; the amount olaimrd from the within the 
 garnishee is within the jurisdiction of a County or Division Court case the jurisdiction 
 garnishee is to be directed to appear to shew cause before the County Court of County 
 Judge of the County where he resides : Rule !(4<). oy Divi- 
 
 For similar pnjcedure in actions in a County Court, see Rule 043. Court. 
 
 The garnisiiee shoidd not pay over without an order to do so, or he may Payment 
 also have to pay the judgment debtor : Clark v. Clark, 8 IT. C. L. J. 107 ; over. 
 Turner v. Jime^, 1 H. & N. 878. 
 
 Equitable Execution. — Kquitable execution is a mode of obtaining payment Claims and 
 of a jiulgment by reaching, l)y means of tlie assistance of tlu! Coiu't, property of (leinands 
 the debtor whicli the .Sheriff, by reastm of th(> ini])erfection of the statutes c)r °'h^r than 
 Rules respecting execution, is unable to deal witii : .see Kirk v. Ilunjess, 15 Ont. ''*'"''^' 
 608 ; II7//.V V. Luff, 38 Ch. 1). 2«0. 
 
 The i)rincipal mode of ol)taining eouitabk c-xecution was by the appointment 
 of a receiver; and it has been said that e, ,11 thougli other and ordinary remedies 
 by way of executicm are open, yet tlie C(>utt has power to award a receiver by 
 way of ecjuitable execution in any and every case in which it is just or conven- 
 ient so to do : Kirk v. JSiirt/e«.f, mipra, at p. (ilO, Re I'upe, 17 C^. R. D. 740 ; see 
 ills'; Kiiiriiid V. Kiiieaid, 12 P. R. 402. As in otlier cases, liowever, wliere the 
 auxihary jurisdiction of Kcpiity was invoked, tlie power to award eipiitable 
 execution was only exercised, in general, where the remedy at law was ineffec- 
 tual, .and therefore a receiver was refused wliere an attaching order could be 
 obtained ; see Trust cC- Luan v. (liirsliiie, 12 P. R. 054 ; or a fi. fa. was sufficient : 
 Mmirhcslcr, etc. v. /'arkinnon, 22 1^. ]}. D. 173. 
 
 Before tli{> .Tud. Act, 1881, only a legal debt could be attaclie<l. ]iy the Jud. 
 Act and I'ulci tlie right to attach was extended, and where a judgment debtor 
 lii«l an e(|uitalile interest in per.sonalty, if it assumed the shape of an equitable 
 debt, this was iield to be attachable : see H'elih v. .Slenton, 11 (I. R.l). ,518 ; .Stuart 
 \. (Jriiiiiih,\') Out. App. 200; and other cases .supra. There still, however, 
 reniauied cases where the Rttle.s respecting att.achment of debts would not 
 apply, by reason of the judgment <lebtor not being entitled to a delit either legal 
 or equitable, though lie, nevertheless, was entitled to some valuable equitable 
 interest. 
 
 The mode in which such equitable interests were reached and made available 
 Was generally by the appointment of a receiver. Receivers have thus been 
 appointed of a reversicmary interest under a will : Fui/i/le v. Bland, 11 (.1. B. D. 
 711 ; a legacy exiiectaiit on the death of a tenant for life : MaenietiU v. I'arne/l, 
 35 W. R. 773 ; the income of a trust fund : Oliivr v. Lowther, :;8 W. R. 381 ; 
 
mmmm 
 
 748 ENFORCEMENT OP JUDOMENT8. 
 
 Rule 936. 42 L. T. X.S. 12; U'M v. .SV<'///<///, 1 1 il 15. l).r)lK,5:W ; iiu interest in a subsisting 
 life insurance and in a cliar^'e upon land : linnnish v. Strp/inisnii, IS L, R. Jr. 
 31!) ; nioneys secured by niortj^ajfo held by the debtor, who resided abriKKJ ; 
 /'(iiriit V. Lnrh'i; 7. ('. L. T. 11)5 ; the life interest of a married woinim in stock ; 
 lirt/HiU V. Hull, 10 C!li. ]). 153 ; a fund in another Court : Wrx/linnl v. Hiln/, •>:, 
 Cli. 1). 413 ; the interest of a del)tor in a trust estate Ixung a share of the pro- 
 oeeds of tile estate when «old by th(! trustees: Stiiiirl v. Uruiiijh, supra; see also 
 other cases referred to mijira pp. (jO and 01. 
 
 It is to such cases that the new provisions of this Rule seem to lie directed. 
 The ])rinciple of the Itiilc would seem to be that wherever there is a person who 
 is thf* custodian of, or liaV)le in respect of a fund or i-Ikisc in. Kclidti of the dt'l)tor 
 under any trust or contract, and the ri^ifht or interest of that debtor nii(,'lit 
 formerly have been the subject of etjuitable execution, that person may inclfcct 
 be converted intt) a i/iKini receiver by being served with an attachinfi order ami 
 may be made .accountable for the fund or cAo.sc //( uclim, to the extent of tlie 
 debtor's claim or demand in respect tliereto. 
 
 A sjiecial form of attaching' order a])propriate in the particular case may have 
 to be framed in each case. Tile general form in the A))pendix No. 142 is only 
 applicable to the case of debts ; but where it is desired to obtain a particular 
 interest, or a cIkixh in (utii'ii of the dol)tor, some precise definition of it iimst be 
 given and steps taken to assert a right to tliat |)articular interest or fhnst in 
 uctiim. 
 
 The terms of the clause in lirackets at ('/) in this Itulc would only seem to 
 extend to cases in which a money payment by tin; garnishee will disc'liargc his 
 liability in respect of the claim or demand. Where the judgment delitor's 
 interest, is not of this nature it would seem to be necessary to resort to otiier 
 modes of obtaining ec[uitable execution, f.ij., under Itiih's 10<)7 et mq., or by 
 the ajipointmentof a receiver, or by action. 
 
 Rule !(.'{8 provides for an order l)eing made for jiaymcMit at maturity of claims 
 and demands not due at the time of the attachment. That Ride was acted on 
 in VoHiuj V. yi<ini(i ((4alt. C.J., 24 Oct., ISH'J). 
 
 Equitable Where the debtor has an interest in land of such a nature that it cannot be 
 interests in sold under a./f. fa., the judgment creditor may reach it, liy a|)plicati()n under 
 JUalcs 1007 ctsrr/., or by action : see Jiilinsim v. Bennett, !( P. R. 337. 
 
 An equity of redempticm in mortgaged lands is saleable under an execntion, 
 by virtue of R. S. O. 1887, c. 04, s. 22, only in the case of a simple eiiuity 
 arising upcm a single mortgage of the land, <<r at most existing between one 
 mortgagor and one mortgagee : scie Sumi.i v. Irelittiil, 4 Out. App. 122 ; and cases 
 in wdiich an erpiity of redemiition is not so saleable, furnish familiar examples of 
 suits for etpiitable execution : .see himiirnn. v. Bacon, 10 Gr. 472 ; Kerr v. 
 Stjiles, 20 (tf. 30!I; Jahnstmy. Bcniiftt, !) P. R. 337, in which last case there were 
 no writs of execution in the sheriff's hands, as to the which see infra, \). 7411. 
 
 An order appointing a receiver was held to bo " a jiroce.ss of execution " witliin 
 the Imperial Act, 27 & 28 Vict. sec. 112 : Re Pope, 17 (l B. 1). 743. 
 
 Since the Jud. Act the Court can grant equitable execution by the appoint- 
 ment of a receiver at the instance of the judgment creditor in cases where 
 garnishee jiroceedings under tliis Rule are not ajMilicable : see notes svpra p. GO, 
 and for the fomi of such orders see llewett v. Alurrai/, 52 L. T. N. S. 380 ; 54 
 L. J. Chy. 572. 
 
 An attaching t)rder against a garnishee, and .a receiver as against the debtor, 
 were granted on tlie same apjilicatiini in Whiltaker v. Whittukcr, 7 P. H. 15; 
 but the authority of that case has been doubted in Manchester, etc. v. Parkinnon, 
 22 q. B. D. 173.' 
 
 The apjKiintment of a receiver would seem to be an effective mode of pni- 
 cedure under circumstances such iis existed in />iiniivan v. Bacon, .inf}. There 
 the debtor wa.s entitled to the equity of redemption in land, but the land was 
 subject to two mortgaf^es held by different persons, and the mortgagor was in 
 possession and in receipt of the rents. See also M'ehh v. Stenlim, sup. ; Lmidoii 
 andCamulian, etc. v. Merrill, 32 C. P. 383, 384, 380. 
 
 land. 
 
m 
 
 ATTACHMENT OF DEBTS. 
 
 749 
 
 A receiver was appointed on an interlocutf vy a|)i)licati()n in a fresh action hj' Rule 936. 
 the ju(lt;nii'nt creditor in Anijln-Ildlidn /Ian/,- v. l)(iricn, !l C"h. ]). 27/"); .see also 
 ef jiurli' h'ndin, 13 Cli. 1). '2i')'2. lint a fresh action is unnecessary ; the apjili- 
 cation for receiver may be in tlie original action after judJ,^nent : ilalt v. Cooper, 
 lliCli. 1). 544 ; Smitli v. CuwM, (I B. 1). 75, 
 
 A receiver will, howtiver, only be granted m cases where the anioiiiit of the 
 judgment debt warrants the expense, and where there is a fair reason to 
 snpiHwe that there is somethincr to receive : /. v. A., W. X. 1S84, G.S. See also 
 ilanchiKlcr, He. v. /'iirkhison, and other cases siipni p. (!1. 
 
 A jiidpinient creditor who has obtained a receiver subject to existing incum- 
 brimces, cannot ])lace himself in a better position than the debtor, and by giving 
 notice to a trustee obtain priority : Anlfii v. Anicn, 2!) Cli. I). 702. 
 
 Wliere the interest of the judgment debtor is not one which is exigible 
 umlcr writs of .//. ,/('. goods or lands respectively, the issue of such writs is an 
 iiiiiiii'iiiiing and needless formality, and is, therefore, an unni'cessary jjrelim- 
 iiiiiiy to proceedings for ef|uital)le execution : Sliitirt.y. (I'muijli, lo Out. App. 
 SKI; see formerly Shea v. J)rainon, 14 (Jr. 513; Wihouv. Protulfoiit, 15 (ir. 103. 
 The issue of such writs has also no effect to give ])riority. The ('(juitahle interest 
 of the debtor is only botmd by, and from the tinu> of, the issuer of the apjiro- 
 in'iiite form of e(piitable execution : Stitiirt v. (ioiti/li, m'/irii. 
 
 ?»$<». Service of an order that debts, claims or demands 
 due or accruing to the judgment debtor shall be attached, 
 or notice thereof to the garnisliee in such manner as the 
 Court or Judge shall direct, shall bind such debts, claims or 
 deiuaiids in his hands [from the time of such service] . 
 J, A. l!uieB71. • 
 
 The words in brackets are now. Otherwise this Ilii/r is identical witii the 
 Ei^'.K. 1.S75, O. 45, r. 3,, (1S83, K. 023), and corresi)onds with part of R. S. O. 
 c. 50, sec. 31)8. 
 
 Stu'vice of an attaching order does not create the relation of debtor and 
 creditor hetween the garnishee and attaching creditor : Wtd-drnpf v, ('(uiadian 
 I'linjir /!(ii/ii;ii/ ( '„., 7 Out. 321. It is otherwise!, liowever, after an order to pay 
 ovcrhiis bei'U made: Gumui v. Carl ill, 32 W. R. 83; 52 L. T. X. S. 431. 
 
 Mcmey paid into Court in an administration suit by an executor is not 
 money "in tlie hands" of the executor, and a garnislu'e order nisi against the 
 executor is not a charge on such money, although ])aid in after service of the 
 order : .sVnvvi.s- v. Phelipn, L. K. 10 Chy. 417 ; -foiu-n v. Brown, 2!l L. T. N. S. 7<J. 
 
 An order »/s)' does not create an V charge till after service : Hamrrv. Uiles, 
 UCh. I). !)42; Re Stanhnpe, Ih., 100 ; lloUnen v. TnWm, 5 E. & B. ()5. 
 
 By tile exoress terms of this Rnlv the debts are bound from the date of the 
 service of tlie order of attachment, though, if n<'thing was attachable at the 
 time tlie order was made, doubtless it cannot attach a dobt or claim arising 
 after the order, but liefore service : Mi'Vranr;/ v. Mcl.i'od, 10 P. R. 53!) ; I'tidrr 
 V. lliiiiv, \2 \\ H^ 35i_ Xhe hon't lidc payment by the garnishee to the judg- 
 ment debtor before such .service will protect the garnishee : Cmipery. Ilrnifnc, 
 27 L. .1. Kx. 440 ; 31 L. T. N. S. 205. No set-off, and nothing affecting' the 
 state (if the accounts between the garnisiiee and the judgment debtor, arising 
 after that date, can be taken into account : T(i])p v. Jones, L. R. 10 Q. B. i.>il ; 
 thoiigl) a set-off existing at that date will avail: Sanqison v. Seatoii and Jiet" 
 R'liltcKi/ Ciini/miy, L. R. 10 Q. B. 28. 
 
 In Fitipnlrick v. Warrinr/, 13 li. R. Ir. 2, two defendants, S. and W., each 
 had an order against the plaintiff tor costs. S. was indebted to the i)laintiff 
 torrent. W.'h costs were first taxed, and he obtained an order against S., 
 attaching the rent due by S. to the plaintiff. When an order to pay over was 
 »|)|)lied for, S. 's costs had been taxed, but it was held that the rent could not be 
 set-off against them as the order nisi had attached it, and S. had no claim until 
 his costs were taxed. But see Be S<ito v. Hubbard, 8 P. R. 445. 
 
 Order for 
 
 attacli- 
 uieut to 
 liiiicl clel)ts 
 from ser- 
 vice. 
 
 
 ^ 
 
 Sp 
 
 ^ 
 
 ^ 
 
"««■' ■ '"'j .. .■'-;■ .l?.ff'^''" 
 
 (P 
 
 750 
 
 Rules 
 937, 938. 
 
 ENFORCEMENT OF JUDGMENTS. 
 
 Wliurt- 11 hanker wnH served with the usual order attaching all debts, etc., he 
 was held to bti justified in refusiuK to honour any cheques even to the extent 
 (if the amount in his hands (jver and above the amount required to satisfy the 
 jud^rnient of the attaciiing creditor : llnjcrs v. WItiteh'y, 23 (I. ]}. 1). 'l'M\, 
 
 \\\ tlie case of several attaching orders, the creditors formerly ranked in the 
 order in which tlieir attaching orders are served : Tutc v. The (.'ni-jinrdUim. nf 
 Tiirmilo, 3 P. R. 181 ; Svretnam v. Loudh, 13 C. P. u'i\ ; see also ^'iilinnani. 
 htmtiaiH, 10 Ir. C. L. K. Apj). xiii ; but see now K. S. O. 1887, c. (i."), s. 37. 
 
 Personal service is not indispensable if tiie service comes to the garnishee's 
 knowledge : Ward v. Vance, !» U. C. L. J. 214, 244. 
 
 Tiie effect of the word "bind" has often iindergone discussion, and under 
 the earlier Knglisli Bankruptcy Act the assignee was entitled, and not the 
 attaching criditor, if bankrui)tcy intervened before acttuil i)ayuieiit under an 
 order to i)ay over : Huhiicx v. Tittfun, 5 K. & H. 80 ; Titriu'r v. Jmifx, 1 11. & X, 
 878; Tilfiiin/ v. Jimirii, 20 L. J. t^ 15. 4(>; I{i//aii<i.i v. Hvardmi, 8 L. R. Ir. 1 ; 
 but if the garnishee was compelled to jjay under threat of execution after notice 
 of the l)ankru))tcy, he was discharged as against the assignee : Wnod v, Dunn, 
 L. R. 2 Q. B. 73. He was bound, however, to set up the l)ankru|)tcy. if he 
 had not:ce of it before the order to pay over : lli. Ihe present Knglish law 
 gives the creditor a charge which is good against the trustee in b.aukniptcy ; 
 KmmaniU'l v. /irid:/ci; L. R. !» Q. B. 280; Kr p. JoKcli/ne, 8 Ch. 1). 327; see 
 Mai/iyr of L'indon v. Joint Stack Bank, G App. Cas. .^93. 
 
 The .service does nf)t effect a transfer of the debt or securities for it : 
 Chuttertvn v. Watneii, \i\ Ch. D. 378 ; 17 Ch. D. 259 ; see also liacklumu v. 
 Siddle, 38 L. T. N. S. 487. 
 
 Order for 
 execution 
 against 
 
 !>J$7. If the garnishee does not forthwith pay into Court 
 the amount due from him to the judgment debtor or an 
 garnishee. g^j^Qm-jj; gqual to the judgment debt, and does not dispute 
 the debt due or claimed to be due from him to the judgment 
 d>.-btor, or if he does not appear upon notice to him, then the 
 Court or Judge may order execution to issue, and it may 
 issue accordingly without any previous writ or process, to 
 levy the amount due from the garnishee, or so much thereof 
 as may be sufficient to satisfy the judgment debt. J. A. 
 Rule 372. 
 
 This is identical with the Eng. R. 1875, O. 45, r. 4, (1883, R. 624), and is in 
 substance the same as the provision of the C. L. P. Act (R. S. O., 1877, c. 50), 
 8. 309. 
 
 Payment to the judgment debtor under stress of an execution discharges the 
 garnishee from liability to the judgment creditor : Tui-nhul! v. Rohertsmt, 38 
 L. T. N. S. 389 ; but he cannot discharge himself ))y a voluntary i)ayinent : 
 Mai/nr of Land' in v. Joint Stock Bank, G A)ip. Cas. 393; and where, before pay- 
 ment, a receiv(>r of the fund is ajjpointed, the garnishee shoidd not pay, without 
 first bringing the conflicting claims of the receiver and the attaching creditor to 
 the attention of the Court : Stuart v. Oroiajh, 15 Out. App. 299 ; and see Rule il44. 
 
 After an order absolute, the gariushee may be examined as to his means 
 under Rule 92G : Vuwan v. Varlill, 33 W. R. 583 ; 62 L. T. N. S. 431. 
 
 ExecuUon «>3S. If the claim or demand be not due at the time of 
 ing claims, the attachment, an order may be made for payment thereof 
 
 at maturity, and execution may issue therefor when it 
 
 matures. Neic. 
 
1 
 
 ATTACHMENT OF DEBTS. 
 
 781 
 
 11 (k'lits, etc., lie 
 ■n t(i tlu' extent 
 ■d to satisfy the 
 B. 1). 'J»i. ' 
 ly rank(Kl in the 
 f C'liriiiinili'in of 
 who Sdliiiiiim V. 
 c. 05, H. 37. 
 ) the f^avnistite's 
 
 jsion, and under 
 cd, and not the 
 Viiient under an 
 
 Jnlli'x, 1 H.&N. 
 
 «,8L. R. Ir.l; 
 ution after notice 
 : Wdiid V, Ditmi, 
 iaiikr>ii)tcy. if he 
 ,ent English law 
 '. ill baukruiitcy ; 
 Ch. 1). 327 ; see 
 
 securities for it; 
 iIho liuckhmm v. 
 
 ay into Court 
 debtor or an 
 38 not dispute 
 the judgment 
 him, then the 
 e, and it may 
 or process, to 
 much thereof 
 t debt. J. A. 
 
 R. 024), and is in 
 S. O., 1H77, c. 50), 
 
 ;ion discharges the 
 ill V. B^hirtwn, 3s 
 luntary payment; 
 where, l)efore pay- 
 Id not pay, without 
 ;taching creditor to 
 <); andsee«M^<■9«• 
 d as to his means 
 N. S. 431. 
 
 at the time of 
 ayment thereof 
 refer when it 
 
 Till! luatnrinj,' claims here referred to would wvm to be those in rcRard to Rule 939. 
 wliieh siiiniiiary i)roceedinf?K in the nature of equitable execution are authon/.ed 
 hyRulf ' 
 
 ■ W'A'h See notes to that liulv. 
 
 «»31». If the garnishee disputes his liability, the Court i^™e where 
 or Jiidge, instead of making an order that execution shall aiHuutos 
 issue, may order that any issue or question necessary for ^ *'^' ''^" 
 determining his liability be tried or determined in any 
 manner in which any issue or question in an action may be 
 tried or determined. J. A. Eule 373. 
 
 Identical with the EnfT- R. IH"'"', O. 45, r. 5, (1883, R. 025), and gives a 
 simpler iiiachiiiory than it. S. O. 1877, c. .50, s. 310. 
 
 A garnishee order made absolute, and no motion nuule to set it aside, 
 althougli no debt was at the time due, iirecludes the garnishee from afterwards 
 questioning it : Itnnt/all v. LUhijow, 12 Q. Ji. 1). 525. 
 
 A garnishee canliot set off against a judgment creditor a debt due to him (the 
 garnishee) from tiie judgment debtor, if the garnishee was aware, from the 
 comnumcenient of the transaction which resulted in his becoming indebted to 
 the jndgnieiit debtor, that the hitter's right to such debt would only be as 
 trustee for the judgment creditor : Fitt v. liri/ont, 1 Cab. & El. 11)4. 
 
 A garnishee can set off against a judgment creditor costs incurred by him, 
 but not paid at the time the issue is directed, against whicii tiio jurlgment 
 debtor is bound to indemnify the garnishee : Rijinill v. Wuudswurth Itiitt. Jid., 
 ICab. &E1. !)2. 
 
 The judgment creditor in the issue stands in the shoes of the judgment 
 debtor, and tiie garnishee can assert against him all claims he could have 
 asserted against the judgment debtor either as jdaintifT or defendant in an 
 action : Xafludi v. U'i/c.i, 5 Taunt. 558 ; Ta/iji v. Jones, L. R. 10 l^. R. 501 ; 1 
 Cab. & El. 05 ; \\\> to the time of the attaching order. See also notes to Rule 030. 
 
 This section does not render it obligatory on the Court f)r .Tudge to direct 
 an issue. If the matter is clear upon the affidavits, the Court may refuse an 
 issue : ll'wc v. liirlcenshaw, 29 L. J. Ex. 240 ; and rescind tiie attacliing order : 
 Minsiiii V. Moodji, 12 P. R. 203, where the plaintiff cannot suggest a ])lausible 
 ground for .supjiosing the money attached to belong to the detitor ; but other- 
 wise it would probably be proper to direct an issue, if the plaintiff so desired : 
 Ih. On the oilier hand, execution may be t)rdere(l if the garnishee does not 
 satisfy the Judge that he has real ground for disputing his liability for the 
 debt: He Sato v. Hubbard, 8 P. R. 445 ; AeumaH v. Jtoii/,; 4 C. B. N. S. 434; 
 and is acting bonii tide in making the disinite : Wise v. JUrkenshuw, 2!) L. J. 
 Ex.240. 
 
 Where an action is pending against the garnishee at the suit of the judgment 
 debtor, and there is no collusion between them, the Court will not grant an 
 issue : liirhardxim v. (/reaves, 10 W. R. 45. The Court will, uiileis quite 
 satisfied that tiie debt is not liable to attachment, allow the judgment creditor 
 to have an issue witli the garnishee : Seyiinnir v. The O.rporad'on af Brecon, 29 
 L. J. Ex. 243. If the garnishee disputes his liability, and the judgment , 
 
 creditor declines to proceed to try the question, the garnishee is entitled to 
 have the attaching order discharged with costs : Wintle v. Williams, 3 H. 
 &N.288. 
 
 In n'ilsim V. Diindas, W. N. 1875, 232, Quain, J., ordered the liability to be 
 tried by means of a special case ; and where the question is one of law, this 
 seems to be the most convenient course. 
 
 Where an issue is directed to a County Court, the action, nevertheless, 
 reinaiiis in the High Court, and the County Court Judge has no authority to 
 order ))roduction : Co-lirane v. Morrison, 10 P. R. GOG. 
 
 An order for cross-examination of the garnishee was refused in Storer v. 
 Hmmns, \V._N. 1870, 40, on the ground that the English Rule corresponding 
 With Rule 500 was not intended to apply to such a case ; but qiuire, in Ontario. 
 
mmmtm 
 
 752 
 
 RuleB 
 940-943. 
 
 Wlioii tinr- 
 uirtlioe to 
 n))l)('ar lio- 
 foro (;oiiii- 
 ty Court 
 J'udne ill 
 
 CIIHOH ill 
 
 High Court. 
 
 ENFORCEMENT OF JUOOMENTS. 
 
 !MO. In cases in the High Court, where the amount 
 chiim or demand claimed as due or accruing from any 
 garnishee is within the jurisdiction of a County or Division 
 Court, the order to appear made under Rule 985 shall be 
 for the garnishee to appear hefore the Judge of the Comity 
 Court of the County within whicli the ;^arnishee resides, 
 at some day and place within his County to be ai)pointe(lin 
 writing by such Judge ; and written notice thereot shall be 
 given to the garnishee at the time of the service of the order. 
 K. S. 0. 1877, c. 50, s. 311. 
 
 Exocutinn !>4I. If the garnishee does not forthwith pay tho nmount 
 ty°or i>ivi-' due by him, or an amount equal to the judgment debt, and 
 u'tiie «."•-'' <loes not dispute the debt due or claimed to be due from him 
 nlJt afsputo ^° *^^^ judgment debtor, or if he does not appear before the 
 tiioiioht. Judge named in the order at the day and place appointed 
 by such Judge, then such Judge, on proof of service of (he 
 order and appointment having been made two clear days 
 l)re"ious, may make an order directing execution to isHue 
 out of the County Court or out of a Division Court, accord- 
 ing to the amount due, and such order shall, without any 
 previous writ or process, be sutHcient authority for tlie Clerk 
 of either of such Courts to issue execution for levvin;,' the 
 
 R. S. 0. 
 
 amount due from such garnishee. 
 s. 312. 
 
 1877, c. 50, 
 
 Proceocl- 
 lii^s if lio 
 disimtes 
 the debt. 
 
 Proceed- 
 ings in 
 County 
 Courts 
 when 
 amount 
 witliin the 
 jurisdic- 
 tion of 
 Division 
 courts. 
 
 1143. If the garnishee disputes his liability, then sucli 
 Judge of the County Court may order that the judgment 
 creditor shall be at liberty to proceed against the garnishee 
 according to the usual practice of the County or Division 
 Court, as the case may require, for the alleged debt or for 
 the amount due to the judgment debtor if less than the 
 judgment debt, and for costs of suit. R. S. 0. 1877, c. 50, 
 s. 315. 
 
 !I43. In cases in the County Courts when the amount 
 claimed as due from any garnishee is within the jurisdiction 
 of a Division Court, the order to be made under Rule 935, 
 shall be for the ,<^arnishee to appear before the Clerk of the 
 Division Court within whose Division the garnishee resides, 
 at his office, at some day to be appointed in the said order 
 by the Judge of the County Court ; and the said order shall 
 be served on such garnishee, and if the garnishee does not 
 
ATTACHMENT OF DEBTS. 
 
 763 
 
 forthwith pay the amount due by him or an amount equal ^^«" 
 to the judgment debt, and does not dispute the debt due or 
 cliiimed to be due from him to the judgment debtor, or if he 
 does not appear before the Division Court Clerk named in 
 the order at his othce at the day appointed by such Judge, 
 then such Judge, on proof of the service of the order having 
 been made two clear days previous, may make an order 
 directing execution to issue out of the Division Court of the 
 Division in which such garnishee resides, according to the 
 amount due, and such order shall, without any previous 
 summons or process, be sutiticientautiiority for the Clerk of 
 the said Division Court to issue execution to levy the amount 
 due from such garnishee, and the bailiff to whom such writ 
 of execution is directed shall be thereby authorized to levy 
 and shall levy the amount mentioned in the said execution 
 towards satisfaction of the judgment debt, together with the 
 costs of the proceedings to be taxed, and his own lawful fees ; 
 but if the garnishee disputes his liability, then such Judge 
 may order that the judgment creditor iu the said County 
 CiHirt shall be at liberty to proceed against the garnishee, 
 according to the practice of the said Division Court, for the 
 alleged debt or for the amount due to the judgment debtor 
 if less than the judgment debt, and for costs of suit. R. S.O. 
 1877, c. 50, s. 316. . 
 
 i 
 
 '.^ 
 
 Orrlor for 
 third per- 
 son to 
 appear. 
 
 044. Where in proceeding to obtain an attachment of 
 debts it is suggested by the garnishee that the debt sought 
 to be attached belongs to some third person, or that any 
 third person has a lien or charge upon it, the Court or Judge 
 may order such third person to appear and state the nature 
 and particulars of his claim upon the debt. J. A. Rule 374. 
 
 This Rule is tiic .same as the Eiicr. H. 1875, O. 45 r. G, (1883, R. 020) ; and 
 corresponds in substance with sec. 313 of K. S. <)., c. 50. 
 
 A sujfgestidii that the money attachetl i.s trust money anrl not belonging to 
 tnK jiidijnii'nt (lel)ti)r, slumld be listened to, and upon reasonable suspicion of 
 such 11 fact, tile Judge has powt^r (even though no suggestion is made that the 
 iiKiney belongs to some third person) to direct an issue to determine whether or 
 not the money is trust money ; and any person who has a claim to the money 
 ha,sa/-w(M.s/(0((// to point out tlie facts to the Judge: R«hcrls v. heath, 8 Q. B. 
 D. 319; 30 W. R. 7(). The judgment debtor may appear to inform the Court 
 of any sucii material fact : Lovely v. White, 12 L. R. Ir. 381. 
 
 Where the garnishee neglects to bring to the notice of the Court the claim of 
 any third party he may possibly have to pay the claim twice over : Stuart v. 
 ''iOi/(//i, 150nt. App. 299. 
 
 943. After hearing the allegations of such third person Proceed- 
 under such order, and of any other person whom by theiKlof 
 J.A. 48 
 
764 
 
 ENFORCEMENT OF JUDGMENTS AND ORDERS. 
 
 
 946*947 *^*™o or any aubse(|uent order the Court or a Jucli,'(! may 
 tiiirii iw- f''*'^er to appear, or in case of such third person not ai)[jeui- 
 Huna. iiig when ordered, the Court or Judj^e may order execution 
 to issue to levy the amount due from the garnishee, or may 
 order any issue or question to he tried or determined 
 according to the preceding lluies, and may bar the claim of 
 such third person, or may make such other order as the 
 Court or Judge thinks fit, upon such terms, in all cases, 
 with respect to the lien or charge (if any) of such third 
 person, and to costs, as the Court or Judge thinks just and 
 reasomiblc. J. A. llule B75. 
 
 SaiiH' as the Kii^. H. lH7r), <). 4."), r. 7, (ISK.S, K. (i27) ; unci ciirrcsiH.iKls in 
 Hul)stiinct' with .sec. WVi, siil)-.s. 1? of H. S. (). 1877, c-. ;")(). Si'c MihliHl v, Lr 
 L. R. 2 *l. ]!. 2511. 
 
 TUv .Fiulfft' hikIci- tliis A'"/'' liiis ii diHcrftioii to direct, "r rcfuw to ilircct, tlic 
 trial of ail iHsiic, and liis disuretioli wan licld properly exercised in refusing', 
 where the plaiutitt' could not Hiifffj'est a phiusiblt^ ^'roiind for supposiiiL' that tin- 
 money in the handn of the garnishee belonged to the jiidgineut dehtcir, (ir tu 
 cast a Hiispicioii upon the limiii. fii/m of tlm claim of the thiril partv aftir 
 examination of him. Had the plaintiff been abl(^ to do this, it would liavc 
 been the duty of the .ludge to direct an issue, if the plaintiff desirt'd it; 
 Johmini V. M'-i,„hi, 12 V. H. 203. 
 
 The concluding i)art of this Rulf authorizes an order for security for costs 
 iigaiiist either party to the issue if residing out of the jurisdiction ; Cunudivu 
 Ho.nk-iif(Ji,mii.im: v. Mi'ldleUia, 12 P. R. 121. 
 
 SMIi. Payment made by or execution levied upon the 
 garnishee under any such proceeding as aforesaid shall be 
 a valid discharge to him as against the judgment debtor, to 
 the amount paid or levied, although such proceeding 
 relay be set aside or the judgment reversed. J. A. Rule 
 376, 500. 
 
 This Ride is identical with the Eng. K. 187.'), 4r) r. 8, (1883, H. (!i'8) ; and cor- 
 responds in substance with R. S. (). 1877, c. iV), s. .317. 
 
 The mere issue of an attaching order, or order to pay over, is no defence to 
 an action by the judgment debtor : Lovkwmid v. ,\'r(.s7(, 18 C. 15, T^Sd ; SifLes v, 
 liriicknUc dud Ottawa Ky. Co., 22 Q. B. 45il ; nkiHii.s v. Madden, 11 V. P. 193- 
 Payment to the judgment creditor after an attaching order servecl, hut liefim 
 an order to i)ay over, is not a dischargt', <iiifl the garnishee is liable t(i pay 
 again to the judgment debtor : Tenter v. ./miex, 1 H. & N. 87S; Clark v. Clurk. 
 8 IT. C. L. J. 107 ; Mcdinnls v. Vorkoille, 21 C^. B. 1()3, 171. Faynumt into 
 Court discharges the garnisliee : Clark v. Clark and Rule !»37 ; and the 
 judgment creditor will be entitled to the fund, notwithstanding the subsequent 
 execution of a composition deed : Calverhnase v. Wiekenit, L. R. .SC. V. 20.") ; and 
 l)ayment under an order to pay over, will not protect the garnishee, if befoie 
 paying over he has notice of the fund being claimed by another, who proves to 
 nave had the better right : Stuart v. Uroutjh, 15 Out. App. 29!). 
 
 As to the practice where orders are made in r(^si)ect of the same ile ht 
 in different Counties, see I'ieforia Mutual Iii.s. Cn. v. lietliune, 1 Out. App. 3.)K 
 
 Attach- tt47. There shall be kept by the proper officer a debt 
 
 S^bekept attachment book, and in such book entries shall be made 
 
 Garnishee 
 dlBcbareed 
 by pay- 
 ment. 
 
PETITIONS OF UIOIIT. 
 
 766 
 
 H'i, H. (128) ; and cor- 
 
 of tlie attachment and proceedings thereon, with names, 
 dates, and statements of the amount recovered, and other- 
 wise ; and copies of any entries made therein may he taken 
 by any porson upon ani)lication to the proper officer. 
 J. A. Uiilo 877. 
 
 TliiH is idfiitioiil witli tlu- HiiR. K. mr,, O. A r. !», {IHS!}, K. fiLit). 
 
 Tln' 'iiHik in'ovidcd fur liy K. S. (). 1877, e. fiO, h. 320, iiiul tlio preMent Rule, 
 Ims Imcii duly kejit in tlic <^. 1$. ofticf ; l)iit mIiicc IHOG only on two occasions 
 have p.i'.sniiN i'c(|uir('d any entries to Ix- made in it. 
 
 The effect of making,' entries or omitting,' to make entries tiierein is nowhent 
 stHti'd, 'Pile luHik wdidd apiM-ar to he no more than a procedure IxHik for this 
 piu'ticiilnr eliiss of proceeding's, and tiie neglect of tlie ottict'r to inako ontrieu 
 wdiild not prejudice tlie litigants. 
 
 tHH. In case of any judgment or order other than for 
 the recovery or payment of money, if any difficulty shall 
 arise in or about the execution or enforcement thereof, any 
 party interested may apply to the Court or a Judge, and 
 the Court or .Judge may make such order thereon for the 
 attendance and examination of any party or otherwise as 
 may be just. New. 
 
 Taken from Eng.R.l«H3, (ill. 
 
 Rules 
 948, 900. 
 
 by proper 
 oillcer. 
 
 I'lxamina- 
 tion in 
 other uasen. 
 
 -':g5- 
 
 % 
 
 CHAPTER X. 
 PETITIONS OF RIGHT. 
 
 04!K A petition of right may be entitled in one of the Form of 
 Divisions ui the High Court, and shall name the proposed St!"""' 
 place of the trial ; and such petition shall be addressed to 
 Her Majesty in the words or to the effect of Form No. 203 
 in the Appendix and shall state the Christian name and 
 surname and usual place of abode of the suppliant and of 
 his solicitor, if any, by whom the same is presented, and 
 shall set forth with convenient certainty the fact entitling 
 the suppliant to relief, and shall be signed by such suppli- 
 ant, his counsel or solicitor. K. S. 0. 1877, c. 59, s. 3. 
 
 950. The said petition shall be left with the Provincial Petition to 
 Secretary, in order that the same may be submitted to the ted'to""*' 
 
766 
 
 PETITIONS OF RIGHT. 
 
 Rules 
 961-966. 
 
 Lieuten- 
 ant-Gov- 
 ernor for 
 his flat. 
 
 Proceed- 
 ings after 
 fiat is ob- 
 tained. 
 
 Lieutenant-Governor for his consideration, and in order 
 that the Lieutenant-Governor, if he thinks tit, may grant 
 his fiat that right be done ; and no fee or sum of money 
 shall be payable by the suppliant therefor, li. S. 0. 1877, 
 c. 59, s. 4. 
 
 051* Upon the Lieutenant-Governor's Hat being ob- 
 tained, a copy of the petition and fiat r.hall be left at the 
 ofldce of the Attorney-General, with an indorsement thereon 
 in the words or to the effect of Form No. 204 in the Appen- 
 dix, praying for an answer on behalf of Her Majesty within 
 28 days. E. S. 0. 1877, c. 59, s. 5. 
 
 pe^M i°r '•SS* In case the petition is presented for the recovery 
 posHession of any real or personal property, or any right in or to the 
 perty*^ '^'° saiBC, which lias been granted away or disposed of by or on 
 behalf of Her Majesty or Her Predecessors, a copy of the 
 petition, allowance and fiat shall be served upon or left at 
 the last or usual or last known place of abode of the person 
 in the possession, occupation or enjoyment of the property 
 or right, indorsed with a notice in the words or to the effect 
 of Form No. 205 in the Appendix, requiring such person to 
 appear thereto within 8 days, and to file his statement of 
 defence within 14 days after the same has been so served or 
 left as aforesaid. R. S. 0. 1877, c. 59, s. 6. 
 
 Appear- 
 .uce. 
 
 05:{. It shall not be necessary to issue any scire facias ox 
 other process to any person so served for the purpose of 
 requiring him to appear and tile his defence to the petition, 
 but he shall, within the time so limited, enter an appear- 
 ance to the same in the words or to the effect of Form No. 
 206 in the Appendix, and shall file his defence or demurrer 
 to the said petition within the time specified in such notice, 
 or within such further time as may be allowed by the Court 
 or a Judge. E. S. 0. 1877, c. 59, s. 7. 
 
 Time for tt54. The time for filing a defence or demurrer to the 
 dlmuK": petition, on behalf of Her Majesty, shall be the said period of 
 28 days after the petition has been left as aforesaid at the 
 office of the said Attorney-General, or such further time as 
 may be allowed by the Court or a Judge. R. S. 0. 1877, 
 c. 59, B. 8. 
 
 Pleadings 955. The petition may be answered by statement of 
 to petuion. defence or demurrer, or by both statement of defence and 
 
PETITIONS OF RIGHT. 
 
 757 
 
 demurrer, by or in the name of Her Majesty's Attorney- Rules 
 General, on behalf of Her Majesty, and by or on behalf ^"*'^^'- 
 of any other person who may be called upon to file 
 his defence thereto, in the same manner as in an ordinary 
 action, and without the necessity for any inquisition find- 
 ing the truth of such petition or the right of the suppliant ; 
 and any siitBcient ground oi' defence in point of law or fact 
 to the petition on l)ehalf of Her Majesty, may be alleged on 
 behalf of any other person so called on to defend. R. S. 0. 
 1877, c. 59, s. 9. 
 
 956. So fa** as the same are applicable, and except in ^,"'^1^°' 
 so far as is inconsistent with these Rules, the laws and etc. 
 statutes in force as to pleading, evidence, trial, securit}' for 
 costs, amendment, arbitration, special cases, the means of 
 procuring and taking evidence, set-off and appeal, in 
 ordinary actions, and the rules, orders, practice and course 
 
 of procedure therein for the time being, shall, unless the 
 Court or a .Tud^ie otherwise orders, be applicable to peti- 
 tions of right. R. S. 0. 1877, c. 59, s. 10. 
 
 957. In f*ase of a failure on the behalf of Her Majesty, in default 
 or of any other person duly called upon to defend in due etc^ppif- 
 tirae, at any stage of the proceedings, the suppHant shall take peti- 
 be at liberty to apply to tbe Court or a Judge for an order ^i^"^" 
 that the petition may be taken as confessed ; and the Court 
 
 or Judge may order that such petition may be taken as 
 confessed, as against Her Majesty, or other party so making 
 default ; and in case of default on behalf of Her Majesty, 
 and any other person called upon as aforesaid to defend, 
 judgment may be given by the Court in favour of the 
 suppliant. 
 
 ((() Sr h a judgment may be set aside by the Court or a 
 •ludcfe, upon such terms as may seem proper. R. S. 0. 
 1877, c. 59, s. 11. 
 
 95>S. Any issue of fact or assessment of damages to be issues to be 
 tried or luul in respect of a petition of right, shall be tried Judge with- 
 or had by a Judge without a jurv. R. S. 0. 1877 c. sg/^t^i^^-y- 
 
 8.13. 
 
 959. The judgment of the Court, whether given upon The judg- 
 demurrer, upon the pleadings, or upon default in pleading, "^^" ' 
 
X' 
 
 758 
 
 Rules 
 960-963. 
 
 PETITIONS OF BIGHT. 
 
 shall be that the suppliant is or is not entitled either to the 
 whole or to some portion of the relief sought by his peti- 
 tion, or that such other relief may be given, and upon such 
 terms and conditions Cif any) as the Court thinks just. 
 R. S. 0. 1867, c. 59, s. 14. 
 
 whenjudg- 960* In cases in which the judgment, commonly called 
 
 ment to be • j i. e r i • -ri i i 
 
 equivalent a judgment 01 amoveas manns, was lormerly m England 
 
 manTM."*"* prououuced upon a petition of right, a judgment that the 
 
 suppliant is entitled to relief, as hereinbefore provided, shall 
 
 have the same effect as a judgment of amoveas maims. 
 
 R. S. 0. 1877, c. 59, s. 15. 
 
 Costs 
 
 against 
 
 suppliant. 
 
 901 • The costs of all proceedings under these Rules 
 shall be in the discretion ot the Court or a Judge, and shall 
 be recovered in the same way as in ordinary actions, save 
 when costs are ordered to be paid by Her Majesty. New. 
 See R. S. 0. 1877, c. 59, ss. 16, 17. 
 
 m^n^lefor ^^^* Upou any judgment or order for the payment of 
 relief. etc., costs bv Her Majesty, the Judge shall and may, upoj 
 cert?iy*t°o application in behalf of the party entitled to costs, after the 
 Treli.^lr! ^^psG of 14 days from the making, giving or aflSrminf; of 
 the judgment, or order, certify to the Provincial Treasurer 
 the tenor and purport of the same, in the words or to the 
 effect of Form No. 207 in the Appendix ; and such certifi- 
 cate may be sent to or left at the office of the Provincial 
 Treasurer. R. S. 0. 1877, e. 59, s. 18. 
 
 
 063. Nothing in these Rules shall prevent a subject 
 from proceeding by petition of right in any manner in 
 which he might have proceeded before the 23rd day of 
 April, 1887 ; nor shall anything in these Rules be con- 
 strued as entitling a subject to proceed by petition of right 
 in any case in which he would not be entitled so to proceed 
 under the Acts passed by the Parliament of the United 
 Kingdom before the said date. New. See 50 V. c. 7, s. 6. 
 
 R. S. O. 1877, c. ,59, s. 20, i)reserves to suppliants tlie right t.. proceed as 
 Iwfore that Act. The date mentioned in this Riili' is tliat of the i)aRsi)ig of 50 
 V. c. 2 (O.) which provided for the coining into force of the R. S. O. 1887. 
 
i either to the 
 t by his peti- 
 ind upon such 
 t thinks just. 
 
 nmonly called 
 y in England 
 nent that the 
 provitled, shall 
 noveas manus. 
 
 )Y these Rules 
 
 idge, and shall 
 
 actions, save 
 
 [ajesty. New. 
 
 he payment of 
 lid may, upoa 
 costs, after the 
 )r aflBrmin(; of 
 icial Treasurer 
 words or to the 
 nd such certiti- 
 the Provincial 
 
 jvent a subject 
 my manner in 
 le 23rd day of 
 
 Rules be con- 
 etition of right 
 id so to proceed 
 
 of the United 
 50 V. c. 7, 8.6. 
 
 right t«. rrocced an 
 ; of the i)asHilig of 50 
 le R. S. O. 1887. 
 
 CHAPTER XI. 
 
 PROCEEDINGS WITHOUT WRIT, 
 
 1, Petitions, 964. 
 
 2, Administiution, 905-988. 
 H. Partition, 98i)-991. 
 
 4. PndPKKTY OF Infants, 992-1004. 
 .5. Devolution of Estates, 
 1006. 
 
 0. 
 
 1005, I 8. 
 
 SuMMAHY Inquiries into 
 
 FrAUDULKNT CoNViSYANCES, 
 
 1007-lOia. 
 
 Quieting Titles, 1013-1037. 
 
 Contested MuNicirAL Elec- 
 tions, 1038-1044. 
 
 1. Petitions. 
 
 SM»4. There shall be indorsed on every petition a notice 
 addressed to the parties concerned, stating the time and 
 place ut which the petition is to be heard, and informing 
 them that if they do not appear on ihe petition at such 
 time and place, the Court may make buch order, on the 
 petitioner's own shewing, as shall appear just, Chy. 0. 
 265. 
 
 The day to be named for the hearing of a jwtition to the Court or a Judge, 
 must 1» one on which the Court, or Judge, sits for such business. In the 
 Chancery Divi-sion, jjotitions to the Court are taken by a single Judge in 
 Court on Tuesdays or Wednesdays, and jietitions to a Judge in Chambers on 
 Mondays. In the other Divisions, petitions to the Court, or a Judge in 
 Chambers, are taken on Tuesday and Friday in each week, vacation excepted. 
 During vacation a sjxicial day is named in each week for hearing matters of 
 urgency. 
 
 When the jK'tition is required to he served (m a party to an action who has 
 not epijeared, leave to serve the petition is necessary if tlie time for apiwarance 
 has nut expired : Eide 533. But not if the time for apt)earance has exiiirod : 
 Rule 532. 
 
 2. Administration. 
 
 1M»5. Any person claiming to be a creditor, or a specific, 
 pecuniary, or residuary legatee, or the next of kin, or one 
 of the next of kin, or the heir, or a devisee interested under 
 the will of a deceased person may apply to the Court or a 
 Judge upon motion, without any action being instituted, 
 or any other preliminary proceeding, for an order for the 
 administration of the estate, real or personal, of such 
 deceased person. Chy. 0. 467. 
 
 Petitiou to 
 be in- 
 dorsed 
 with notice 
 of hearing. 
 
 When pe- 
 tition to be 
 made re- 
 turnable. 
 
 Service of 
 petition, 
 how made. 
 
 Creditors, 
 legatees, 
 next of kin, 
 lieirs or de- 
 visoGs, may 
 apply on 
 motion, in 
 Chambers 
 for admiii- 
 istratiou. 
 
 ■• • - 
 
 i 
 
 ^' 'I ' 
 
wm 
 
 760 
 
 I 
 
 i Rule 965. 
 
 5 Applioa- 
 ;, tions for 
 t adminis- 
 tration 
 ' under this 
 j Rule. 
 
 I Wilful 
 
 neglect and 
 default 
 .: may be in- 
 h quired into 
 Sj under judg- 
 li ment ob- 
 tained 
 ; under this 
 i Rule. 
 
 ;■ When writ 
 ': must issue. 
 
 Applica- 
 tion wlion 
 to be made, 
 
 Local 
 Masters. 
 
 PROCKEDINGS WITHOUT WRIT. 
 
 It was formerly considered that a])j)licati(ms for administration by iridtidn, 
 under Chy. Ord. 4()7, from which tins Jiu/r is taken, should he confined ti'j 
 simple cases, and wherever misconduct was charged, a bill should be filed ; /(, 
 Babcock; 8 (Jr., at p. 410 ; Eherfs v. Eltertu, 25 Gr. .505 ; Acankr v. AniUrson, 1!) 
 Beav. 1()1; Bump v. ('recnhill, 20 Beav. .')12; and it was considered that under 
 an administration order obtained on motion against an executor, no inquiry 
 could be made as to wilful neglect and default : Harrixon v. McdhmlKin, 7 (Jr. 
 531 ; altliough such an inquiry could be directed where the personal repn'seii- 
 tative himself obtained the order : Lediicrwood v. Lcdiivrwood, 7 (Jr. 584. It is, 
 however, now settled, that the incniiry as to wilful neglect and default, may I* 
 made in all cases under an administration judgment granted on inotiun : A 
 Allen, Pocock v. Allen, 9 P. R. 277; 18 C. L. J. 242; Carpenter \\ Wml.V) 
 Gr. 354 ; Sullivan v. Hurt}/, !» P. R. .500, 1!) C. L. J. 234 ; and it would seem 
 that any breach of duty which is i)ractically a matter of account, may be 
 effectually inquired into, and dealt with, under a judgment obtaiiuKl under this 
 Rule. Where, however, there is any question to lie detennined, before a judge- 
 ment for administration can jjrojjerlv be iironounced, the action should he 
 commenced by writ. Thus it was held a bill must be filed where the constnic- 
 tion of a will wa.s necessary : Hci/irond v. Sievwrii/ht, 8 P. R. 7i' ; Fronh v 
 n'orth, 35 W. R. (503; 50 L. J. Chy. 770 ; Carhjon v. Carli/on, 35 W. K. liw; ,5li 
 L. T. N. S. 151 ; where the claim was for support of wife and cliildreu of 
 deceased, raising substantially the same question as would be raised in an 
 alimony suit: He Foster, Griffith \ . Patterson, 20 (ir. 345; Groom v.Dnrlimitim, 
 9 P. R. 298; where the claim arose out of a contract of sureivshij), lie Collmi. 
 8 P. R. 542; see also Re Allan, 9 P. R. 277 ; and Be Arcedecknc, 53 L. J. Cliy. 
 102; or where the executor is cliarged with misconduct: Be Bahcock, 8 (Jr. 40ii. 
 that is, misconduct which would entitle the plaintiff to ai)i)ly at the outset for 
 an injunction or a receiver: Sullimn v. Hart//, 9 P. R. 500; not misconduct 
 consisting merely in not having accounted for moneys received, a' id which Wduld 
 be shewn ujwn thetaking of accounts : Ehcrts v. Jilierts, 25 (4r. .505, Be McMillmt, 
 8 C. L. J. 285 ; where the plaintiff claimed to be a creditor, and his claim 
 apijeared to be barred by the Statute of Limitations, but lie claimed to avoid 
 tne operation of the Statute, on the ground of fraud on the part of the testator: 
 Be McDonald, Cameron v. McDonald, 2 Cliy. Ch. 29 ; and where a legatee claimed 
 administration, and it ai)peared that an award hnA been made resjiectinp the 
 ajjplicant's claim, but the applicant denied being jiartv to tiie reference: 
 Nudel v. Elliott, 1 Chy. Ch. 32(> ; and see Uroom v. iJarlim/toii, 9 P. K. 2!IS; 
 and Re Munsie, 10 P. R. 98; 20 (!. L. J. 112. But wliere the facts are not in 
 dispute, and there is oidy a question of law as to the right of tlie api)licant to 
 sue, it would seem that such a point would be decided on a niotion witiiout 
 putting the parties to tiie nt'iessity of bringing an action : Re Powers, LiwMl 
 V. Phillips, 30 Ch. l>. 2!)1. 
 
 In Barrii v. Brazill, 1 Chy. Ch. 248, s])ecial inqtiiries as to what would l>e 
 pro]ier to be allowed to the a])plicant (the wi(hiw and administratrix) for 
 improvements made on the property, and for the maintenance of the infant 
 children of deceased were refused, and applicant left to file a bill. 
 
 Where the applicatiim is niiule on motion, in a case in which the Court is of 
 opinion that a writ siiould be issued, an order is usually made giving tlie a]i|)li- 
 cant a day to connnence his action, in default, the motion to be dismissed; Init 
 if the action be commenced, reserving tlie costs of the motion until the trial of 
 the actitui : Re McDonald, Camerun v. McDonald, su/ira. But where the 
 plaintiff commences an action, instead of applying on motion, where the latter 
 course is projK'r, he will be disallowed the extra costs occasioned tliereliy: 
 Sovereiim v. Sovcreif/n, 15 Gr. .559; or if it i^ not clear tiiat tiie action wiis 
 unnecessary, the ouestion of the additional cc.^t., will be reserved until after tiie 
 Master has made liis report : EIhHs v. Eberts, 25 (ir. 505. 
 
 Applications under this Ride are nuule in Chambers, Bale 512; if, iiowever, 
 the motion is contested, the jurisdiction of tlie Master in Ciianibers is excluded, 
 and the motion must be adjourned before a Judge in Chan-'jers : see Ruh 3il, 
 s-s. 8. 
 
 Applications by adults may be made for the like purpose to the Local Master 
 having jurisdiction in the county where the deceased died : Rule 972. A Local 
 Master's jurisdiction is not ousted by the motion being opiM)8ed. 
 
ADMINISTRATION. 
 
 761 
 
 Riilf Ofifi provides that, at least, fourteen days' notice of the motion must be Rule 966. 
 given. Motions for administration seem, therefore, to constitute an exception Fourteen 
 to ordinary motions wliicli only retpiire two clear days' notice : I{ii/r 47!) ; 'lays' no- 
 
 The words " at least " ''"« °' , 
 Bumohr v. Jlarx, l!»"e given 
 
 and see Exchange Bank v. Ncwill, 1!) C. L. J. ili);-!. 
 require tliat the fourteen days be clear days : see 
 C. L. J. 10. 
 
 Parties. — The provisions of Ri'le.t 300, 320, 321, 322 ai)i)ly to i)roceedinfrs Parties, 
 under this /iu/e. All i)arties from whom an account is sought, shcjukl be served 
 with nt)tice : see liule 320 note. 
 
 Applien- 
 tions for 
 adminis- 
 tration by 
 creditors. 
 
 Personal 
 represen- 
 tative must 
 be served. 
 
 Creditors. — A creditor wliose debt is payable, may make application for 
 aflministration of his deceased debtor's estate, without waiting a year from his 
 (iecea.se. To an application by a creditor for the iwlministration o( tlie i)er.-ional 
 estate, no one but tlie i)er.sonal representativt; need be made a defendant : b\it 
 wiiere an administration of the realty is also sought, unless the jjersonal re])re- 
 sentative is also interested in the realty, some one nuist also be made a iiarty 
 who is interested in the realty : .\u/e 070. Under the hevolution of EnUttin Act, 
 the personal representative now sufficiently represents both the real an(l 
 |)er.soii!il e.state (if all persons dying since 1st July, IHWi, and it is not i)ro])er to 
 make the heirs or devisees of such jwrsons parties. But when the letters of 
 arlmiiiistration are limited to the per.sonalty, it will be neces.sary to get letters 
 of administration of the realty, in order to obtain ])roi)er rejjresentation of the 
 realty. 
 
 AVhere there are several i)ersonal rejjresentatives all must be served, even If more 
 thoiif^h some be resident out of the jurisdiction : Be Fnrhorn, Frvihorn v. than one. 
 Cunyll, (i ]'. R. 1.SH ; Latch v. Latch, L. K. 10 E(i. 4(14. A judgment for iulminis- gerveil'* 
 tration ould not formerly be granted as against an e.xecutor dc noa tart where 
 there was no legal personal representative bef(>re the C-nirt : Rovscll v. Morris, 
 17 K,(|. 10. Nor against an e.xcjutor named in the will who had not proved the 
 will: Oiitram v. Wiich'hojf, (> V. W. 150. ]>ut see now Rule 312, as to action 
 iipfiiiiiit an e.xecutor dc son tort: notwithstanding Bale 312, wliere the action is 
 Imnight against an executor dc son tort, it would seem to be tlie better i)ractico 
 toeoinnience it by writ, etc., not under Biilc 2()o. See further as to parties Bu/cs 
 320-322 note. 
 
 On the motion, the ai)j)licant must bei)rei)ared with pro<jf that the defendant 
 is the jiersonal representative : ordinarily, the 'etters of administration, or 
 letters probate, should be produced : Be Marshall, Fovder v. Marshall, 1 
 Chy. Ch. 20; Be Israd, 2 Cliy. Cli. 302. But where the plaintiff swore that 
 the defendant was administrator, and tlie fact was not disputed, jiroduction of 
 the letters was disjjensed witii : Be licit, Ikll v. Bell, 3 Chy. Cii. 307. It is 
 suflicicnt if the letters of a(hninistration be granted at any time before the 
 hearing of tlie motion, eventliough substvpient to giving the notice : Kdiiihiiriih 
 Life AitKitrance VoM'iaii// v. Allen, 10 (Jr. 503; Be Masonic r{' (1. L. -I. Co., 32 
 Ch. ]). .373; Trice v. Itoliinson, l(i Out. 433. But letters of administrati(ni 
 ihtmwA jwiidentc lite \\'\\\ not relate back to the conimencement of tlie acti(m 
 so as to bar the nmning of tlie Statute of Limitations : Chard v. B<(e, Boyd, C, 
 3r(l Dec, 18.S0. Wher<i the motion was refused on the ground that the iH'rsonal 
 I'epresentative was not a party, only tiie costs neces.sary to raise that objection 
 were allowed : Irwiti v. Itnck, (i 1'. I{. 183. The creditor applying must also give 
 primii facie evidence of his claim as creditor : /\'c Clarke, 2 Chy. Ch. 57; and 
 where his claim is disputed, lie must establish his claim by iirojier evidence — 
 his own iincorroboratiMl evidence, is insufficient: Viciaii v. Wcsthronkc, 10 
 (ir. 4(11 ; see R. S. O. c. (jl. s. 10 ; and as to nature of corroboration 
 re(iuiiv(l ; see Studdart v. Stoddart, 30 II. C. <i. K 203 ; Sm/den v. Lord 
 St. Linmrds, L. R. 1 P. 1). 1.54,170; McDonald v. McKinnon, 2(1 (ir. 12; 
 McKiiji V. McKaii, 31 C. P. 1 ; Aitamson v. Adamson, 28 (ir. 228 ; Bcincn v. 
 Ciipnw, 24 (Jr. 01 ; llalleran v. Moon, 28 (Jr. 310; Be Laws, Lan-sv. Laws, 
 Ik, 3-S2; lie Bohhius, 23 (Jr. 1()2; Be Boss, 20 (Jr. 385; 18 C. L. J. 11 ; Parker 
 V. Ptirkn: 32 C. P. 113 ; W'at.wn v. Severn, (i App. R. 5.50 ; Wal.ton v. Brad- 
 shiiw, II,., vm ; Cook V. (/rant, 32 C. P. 511 ; Be Murrai/, 2!) (Jr. 443; Ont. 
 App. ,3()il; Burn v. num. 8 ()nt.!237; Tuekerv. McMahon, 11 Ont. 718; Hogg v. 
 Mnijuire, 11 Ont. App. .507. 
 
 Evidence 
 re(]Uired 
 on applica- 
 tion. Proof 
 of si'ant of 
 probate, or 
 adniinis- 
 tratioii. 
 
 Proof of 
 
 applionnt's 
 
 clai'ii. 
 
 C!orroborft- 
 
 tion must 
 
 he given if 
 
 contested. 
 
762 
 
 Rule 696. 
 
 Applicant 
 muBt be 
 creditor of 
 tbe de- 
 ceased. 
 
 Efifect of 
 j udgmeut 
 for admin- 
 istration as 
 to claiuiK 
 of otlior 
 creditoi's. 
 
 Statute of 
 
 liimita- 
 
 tions. 
 
 PROCEEDINGS WITHOUT WRIT. 
 
 A partnerrtliip creditor Hiiing for the achiiinistration of the estate of adeCL-ased 
 ))artiier iiiUHt join tlie surviving partner a.s a party, even though he i.s insohent • 
 Itf MrCrac, Ft>rgtcr v. iJiivin, 2.-) Ch. D. 1(1; 4<l ll T. N. S. .544. 
 
 The creditor must be a creditor of the th'ceased per.son wiio.se estate is wmglit 
 to hr- adniii^,<tered. Wiiere the applicant was merely a creditor of tlie personal 
 re|,i'estt;' 'or advances made to him .ns such, the iii)plioati(in was refiiswl: 
 
 Ci lunhf ,1 , 1() (ir. Ilo; FiuIkiII v. Fiirhall, L. H. 7 Cliy. Vl'i; lie Piltn, 
 
 Mcki,' hr 'V, () P. H. I,'")? ; Ourti v, Dilomin. L. R. 15 Eq. 134 : Kn-nrtw 
 
 atertn . -i v., .. "■^•. Seton, !(l(l; and net' Hniri/ v. Sharp, IH (ir. Ki. Criditors, 
 whose debts are incun ed by the executor, in carrying on a business of his testator, 
 are tiit'tled tf) indeumity out of the deceased's estate to the extent, if any, which 
 the e.> ci.oor is enti'i'd : /te Johnnitn, ShcdriiKin v. I'oliinxnn, 15 Ch. I). ,54S; 
 43 L. 1. N. ( , "7'' ; • plaint'tf, who had made advances to pay the debts of 
 
 a deceased jur.-on, ''■ >,'ve tin estate the costs of suits to recover tlieni, was 
 iield entitled to adniiiilscri.tio i : (IIukh v. Mtinxni, 12 (ir. 77 ; .see also, Milh v. 
 Cotth', 17 dr. 335; Strick''niii \. Siimonn, 48 L. T. X. S. 188; which were cases 
 of advances to trustees. 
 
 A judgment for administration cannot be set aside on tlie gro\ui(l tliat the 
 a])plicant was not a creditor, after other creditors have proved mulerit: Re 
 (Jaiuiori, Od.h'K v. t'unnoa, 13 Out. 70. 
 
 A judgment for administration, is ecpiivalent to a judgment in favour of all 
 the creditors of the estate, Init ci'editors who are not parties to the action, can 
 oidy clahu the benefit of it from its date, as to thechiiuis of the latter, tiiennining 
 of the Statute of Limitations is not stopped, until the judgment is obtained: 
 Itc Can null, Ontt's v. ('ininini, 13 Out. 705; A'c (> ira n'.-i, Until v. Tatiihl, IS 
 Ch. D. 551 ; 45 L. 'J\ N. S. 41J4 ;^ Mdnh,/ v. Mi'iihii, 3 Ch. L). 101 ;lmt see 
 Vmiikx V. Cniiiti, 4 (ir. at p. (il!t. The judgmt'ut, however, does not prevent the 
 Statute from running in favour of debtors to the estate : .1 rc/n'r v. Snrni, 12 
 Ont. (n5 ; 14 Out. Api). 723. 
 
 The personal representative is not bound to wet up the Statute of Limitations 
 as a liar to a creditor's claim ; Leirin v. Riimiifii, L. R. 4 K(i. 451 ; and if the personal 
 representative, and such of the i)arties beneficially interested, as are parties to the 
 siut, or who have come in under the judgment, do not set uj) the Statute, the 
 Court is not l)ound,ou behalf of absent jiarties benefically interested, to disallow 
 claims against th. estate whicli are barred by the Statute : .il.stnn v. Trolhipe, 
 L. R. 2 E(i. 205. liut althougli the personal re|)resentati ve nuiy refuse to setup the 
 Statute as against the claim of a creditor of tiie estate, yet any party 
 interested in the estate, whether as creditor, legatee, or next of kin, may 
 set it up as a bar to the claim : Slu'iren v. Vauiicrhor.st, 1 R. & 11. 3o2. 
 And though a jjcrsonal representative may i)ay, or retain, debts barred by 
 the Statute, tliougli otherwise justly due, he cannot ])roperly pay, or retain a 
 debt due under a i)romise which cannot Ije (aiforced by reason of its not 
 being in writing under the Statute of Frauds : Hi' Rnwi'ison, Fidd v. WhiU\ 
 2!) Ch. ]). 3.58 ; 52 L. T. N. S. 825. An order for the administration of the 
 estate of the owner of the eipiity of redemption, does not stop the running of 
 the Statute in favour of the mortgagee in possession : I'nmhx v. WalLins, S (ir. 
 340. Where a cause of aotion accrues in the lifetime of the creditor, tlie Statute 
 begins to run against him, iind continues to run against his estate, notwith- 
 .standing there is no executor, or administrator ; but where the cause of actioii 
 does not accrue until after his death, then the time does not begin to run until 
 there is a personal representative : (w'miil v. Mi/JmidM, 8 (ir. 408; SIn-eii.mi v. 
 Jlodtli'r, 15 (ir. 570. A claim cannot be.kept alive by any acknowledgment or 
 payment by an executor </<'.«;» /or/.- lh.,Boatieriijlit v. Jlnaiwrii/lit, li.H. 17 Kq.71. 
 
 As to staying creditor's action when an administration order has lieen 
 granted, see' /tc Lanritni 18 (ir. 530; A'r Ht'n<i(>:i<ni, 2(» (ir. 2!I7; Hiiihi/ \- 
 MonMth, 3 C. L. T. 5i)!i ; Honlrrnni, v. MarinK, 1<» L. R. Ir. 225; Monkith 
 V. MerclumtK Bank, 4 C. L. T. 41 ; Harmon v. iitubb, W. N. 1878, 7.); He Tims, 
 W. N., 1878, 141. 
 
 In /{r Winiirrnhi), Kth'-riiliir v. Womrrs/rii, 2!) Ch. D. 557, the Court refused to 
 restrain a creditor who had recovered judgment ])reviously to the adniinistratiou 
 order, from proceeding against the execution ijersonally. 
 
ADMINISTRATION. 
 
 A jwvsoniil rfi)rcH('ntative cannot Kot up liis own (levasta\it and cliiini that 
 the Statute of Limitations' bars any claim against him by rt^ason of hucH devas- 
 tiivit ; tmt if lie is sued for a devastavit, he may rely on the Statute as a bar : 
 H' ll'jtitt, now'i:i V. JJ.i/cff, 38 Ch. D. (iO<» ; ni) L. T.'N. S. 2it7. 
 
 rriK.redinprs by a creditor may be stayed on the aiii)lication of any jjerson 
 intiTcsted in tlie estate, on i)avment of his claim and costs : Fit/ni v. /tKirsim, 
 SCiiy. f'li. 4(il ; Jii' Hniili'runii, '_'(> (4r. 2i»7 ; 15 C. L. -T. 132. 
 
 WliH'c some defendants in an administration action l)y a creditor offered to 
 natisfy the plaintiff's claim and the costs of the notion, the Court refused to stay 
 in'oceedinijs unless the rifflits of an infant defendant were jn'ovided for; Clfj/ii 
 V. 'Vr;/;/, 17L. li. Ir. IIH. 
 
 After jiidtruient for administration, a creditor cannot counter-claim in an 
 iictiiiu of tre-<|>ass l)roiii,'ht against hin> by the )n isonal representative, for a debt 
 due liy the deeeased to him : Munfnth v. Walsh, 10 V. K. I(i2 ; 20 C. L. -T. 71. 
 
 L atees, Next of Kin, etc.--A|)))lieations by legatees, or next of kin, for 
 adnimistration cannot be made until the laps(> of a year from the death of the 
 (ieeeasod: 33 (ieo. 3 c. 8 (Imp.) Slnti'f v. Sinter, 3 Chy. Ch. 1; \'irian v. 
 lIV.v////"./ •, I'.l (Jr. 4{)1; (•'rinil v. (imtit, !» 1'. K. 211 ; but s-e nuitm n'allis v. 
 Wiillis. !l Ir. Chy. oil ; /'rossrr v. Mdkk:)/), 2!> W. K. -II!'': wliich were not 
 fdllowed in RiMnrli ii, Tiirki r\. Morlcii, Sept. 1882, by Prom I loot, J. When the 
 action is brought mnieces.sarily, the legatee may lie ordered to jiay the costsof all 
 parties ; lie Wnudhull, (itirliiitt v. J/cirsaii, 2 Out. 450. Wherever a legatee, if 
 aliv(',iiiay ai>))ly, his ])ersoiial representative, in case of his death, can also ai)ply : 
 Siiiijixiiii V. Ilnnii', 28 (4r. 1. As to parties to ai)plication by legatees : sfn jiulf 
 32tl note. An ai)|)licatioii for administration by an infant, by his next friend, 
 was frranted on the mere suggestion that it wotdd be for his benefit : Re Wi'Ikhii, 
 Lli>!/il V. Ticlihiinii', !) P. H. 80; but where the gromid of motion was that 
 strangers had got ))o-;session of most of the estate, an order was refused, there 
 being no allegation that the executor refused to account or was colluding, and 
 the Court thought he ought to ai)])ly for the order if it were necessary : AV 
 Denn'ii;/, Mitchill v. Dcarinu, 12 June, 1882, l'roudf(M)t, J. ; see also Re Blnke, 
 2!) Cli. D. 013. Hut where it turned out that a suit had been brought imneces- 
 sarilyby an infant, his next friend was ordered to pay the costs of it : Jliitrlnnsmi 
 \.Siir(/ciil, 17(Tr. 8; McAiidivir v. Ltijhnnmi; lOGr.103; Mondie v. Leslie, 12 Gr. 
 .537; and see AV Joliii.stun, ./olniuli ii v. l/n'/i/, 25 Gr. 2()1 ; Carroll v. Carroll, 23 
 «r. 438: Re Blake, 20 Ch. D. 013. 
 
 An administraticm suit should not be instituted on behalf of infants, where 
 tile object is simply to obtain an allowance for their maintenance out of the 
 estate, which can be as readily got bv application under Rule 902 e/ seq. : 
 Fenviek v. j'-'einriek, 20 (ir. 381 ; HoinlfelUnr v. Rannie, Ih., 425. 
 
 !M»0. The notice of motion ia to be served upon all 
 proper parties at least 14 clear days before the day named 
 for hearing the application, and is to be in the form or to 
 the effect sec forth in Form No. 12 in the Appendix, and 
 must be served upon the executor or administrator. Chy. 0. 
 •168,552,501. 
 
 Where the motion is to lie made before the Master in Chambers, the notice 
 simuld he varied to the following effect, e.<i., "Take notice that an application 
 will be made to the Master in Chambers, on etc.; or, if ojjiiosed, then to a Judge 
 ni I'liamhers, as sium thereafter as a Judge shall be sitting in Chambers in the 
 -Division, etc." See Rule .30, s. 8. 
 
 Where infants are intended to be served with notice of the motion, a 
 guardian ml litetn nuist l)e api)ointed to them. The procedure provided by Rule 
 iW, for the appointment of guardians ad litem to infant defendants, made 
 parties by writ, does not appear to be exjdicitly extended to applications for 
 administration under these /.'»/r.s. But see Rule 252, and Re Pe/ijier, Peji/ter 
 y.Pqipir, nuimi, p. 288. It is possible, however, that mider Rule 3 it may be 
 
 763 
 
 Rule 966. 
 
 Aiiplica- 
 tions for 
 adminis- 
 tration by 
 legatees, or 
 next of kin, 
 cannot ho 
 uiade until 
 lapse of a 
 year from 
 death. 
 
 Personal 
 represen- 
 tatives of 
 deceased 
 legatee 
 may apply. 
 
 Fourteen 
 days' no- 
 tice of mo- 
 tion. Form 
 of notice. 
 
 Guardian 
 nd I tent to 
 infant de- 
 fendants, 
 liow to be 
 appointed. 
 
764 
 
 Rule 967. 
 
 Heir and 
 devisee 
 wlieu to be 
 served. 
 
 Upon proof 
 of service 
 o( notice, 
 or on ap- 
 l)earaiico of 
 personal 
 rej)reBen- 
 tative, etc., 
 order for 
 ndniinis- 
 tration 
 may be 
 granted. 
 
 Evidence 
 in snpport, 
 liow ob- 
 tained. 
 
 Order for 
 adminis- 
 tration en- 
 tered as a 
 judgment. 
 
 .Applica- 
 tion re- 
 fused when 
 estate trill- 
 ing. 
 
 PROCEEDINGS WITHOUT WRIT. 
 
 held tliat the Ofticial (tuardian ad litem ia to be served with the notice of tlic 
 api)lic!iti(>n and will tliereui)on become guardian wl litem to the infant m 
 wliuse behalf he is served, by analogy to the practice i)rescribed by Hnk'Si^, 
 but until this is decided it would api)ear to be safer to obtain an order appoint- 
 inp a guardian nd litem to infant i)artie8. 
 
 Where the administration of the realty is sought, notice nuist be jfiven t<i 
 the heirs, or (hn'isees, or one or more of them : liutr W'i) ; unless under Thr 
 Jjernliitidii (if Kdates Act the per.sonrl representative also reiiresciits tin- 
 realty : ne.xt of kin, and legatees need not be served with the notice of tliciiKitiun, 
 but they m\ist be served with an office copy of the judgment, as prescril)wl Ijy 
 Rule 322. See note to that Rale, 
 
 The words "at least," indicate that the notice is to be fourteen clear days: 
 Rumohr v. Marx, 3 C. L. T. 31. 
 
 t>67. Upon proof by affidavit of the due service of the 
 notice of motion, or on the appearance in person, or by his 
 solicitor or counsel, of the executor or administrator, and 
 upon proof by affidavit of such other matter, if any, as the 
 Court requires, the Court may make the usual order for the 
 administration of the estate of the deceased, with smii 
 variations, if any, as the circumstances of the case require : 
 and the order so made is to have the force and effect of it 
 judgment to the like effect made at the trial of an action 
 between the same parties. Chy. 0. 469. 
 
 The affidavit on which the application is founded should be filed with the 
 proper officer, before the notice of motion is served. 
 
 The affidavit-^ should establish the facts and circumstances neces.sary to 
 entitle the applicant to the administration. As to obtaining oral evidence in 
 support of the motion : see Rule .578; see further as to tiie evidence ii'tiuiifd : 
 Rule !Mi,j. A connnissi<m may be issued after notice of motion served, for the 
 pur|)ose of obtaining evidence in support of the motion : Fiiercll v. Vruikslucik, 
 1 Chy. Ch. 12. 
 
 The order for administration is now in effect a judgment, and is to Ix- drawn 
 up and entered, as required in the case of other judgments: see link 54(1. 
 But in MrHcnrii v. Lewin, 21 Ch. 1). 202 ; 47 L. T. X. S. Mit, an interlocuUn-y 
 order for an acount without any deulariition of right was held nut to be a 
 judgment. But that case it is apprehended does nit interfere with tlie pnictice 
 as above stated ; ln-cause an order for administration can only be properly 
 granted after an adjudication on the question of the a))|)licanfs rij^'iit to the 
 acc.tuut claimed. Where any iireliininary question has to be deteiniined, iv 
 has been already pointed out, the C(mrt will generally require an action t<ilje 
 brought : see Rule Wtii, note. 
 
 Wliere the i)^* ;;ial refiresentative has di-(trib\ited the e-itatc, after (luly 
 advertising under 11. H. (). c. 110, s. 3(>, that is an answer to tin- application: 
 .see Rule 320, note, \>. 348. Re Braekin, Dowiliti/ v. Townn'in, (il L. T. X. S. 531. 
 
 Th(! fact that the estate was small, and that no misconduct was imputed to 
 th(^ executors, and that it was unadvisable to incur expense, was held to lie no 
 ground for refusin"^ the applicatitm of a legatee for administration : /'< Fule'nur, 
 1 Chy. Ch. 273. Where, however, the executor swore that the iiersoual estate 
 did notexceed ^'M, the Court, before granting the order, required tlieaiiplicant, 
 who was one of the residuary legatees, to file an affidavit stating tliat he had 
 reason to believe, and did ikdieve, that the result of the pro"' 'dings would 
 show a substantial b.alance to be divided among the legatees : /'■ Vr v. Frnttf^ 
 lit Gr. 4()3; and see WeMmok v. BrowHt, 17 (ir. 33!); Sha.'j v. Frecdii, » 
 C. L. J. 13(5 ; Gilbert v. Bmithwait, 3 Chy. Ch. 413. 
 
ADMINISTRATION. 
 
 765 
 
 irtt'.L'ii clear days : 
 
 1 1j« filed with the 
 
 Admiiiistratiim was refused on the application of a legatee whose claim only Rules 
 uii(iiiiiti'(i to 828, although it was alleged that other claims to a con.sideral)le 988, 969. 
 uiiimiit remained unpaid : J{ii/no/<ls v. Coppin.VJ (ir. (i27. And an application oi- claim of 
 1)/ ii iKirtniTship cre(iitor was rcifused, where it was shewn that the .separate applicant 
 I' .t:iti' of the deceased was insufficient to pay his .separate creditors : lit uuiler iiJ40. 
 llnnmnl, Kdinn'l.* v. nariKinl, 32 Ch. 1). 447 ; lii") L. T. \. S. 40. 
 
 Tile reference should hti jiriiiil fifir directed to the Master of the county 
 v.hci'H the person whose estate is to be administered residud : Thompson v. 
 t^urhiiint, 10 P. R. 533. 
 
 \M\H. The Court is to mve iiny special directions touch- special ai- 
 iiig the carnage or execution oi the order, whicli it deems may be 
 e.'cijechent ; and in case of applications for an order by two HpectinK 
 or more persons, or classes of persons, the Court may Si'^-nt JjJ^^^'^^'^^'' 
 tlie same to such one or more of the claimants as it thinks tarriago uf 
 lit ; and the carriage of the order may he subsequently be subh"-^ 
 siveii to any party interested, and upon such terms as the^hangmi. 
 Court may direct. Chy. 0. 470. 
 
 Several ai) 
 plicatiouB 
 — only on J 
 judgment 
 slioiilil lie 
 granted. 
 
 Wliere two or more ap))lications are niiide by different persons under this 
 Ridi\ only one judgment for administration should l)e granted ; and the Court 
 may determine which of the applicants shall have the carriage of it. Tlie ride 
 lit'iii!,' to give the conduct of the proceedings citcrix /j^n-rt^.t to tile party mo.st 
 interested in prosecuting them ])roperlv and economically : J'crriii v. Pcrrlii, 3 
 Chv. Ch. 4.')2; R( Aihtmx, Adamx v. 'Muirkrwl, (i P. R. 283; Jif l>rn<i<i<)u, 8 
 VAX, 3;{0; AV Prime, 48 L. T. N. S. 208 ; Pnnni v. Fkiiici\ 7 dur. X. S. 248 ; 
 iiut sec /iV Sirirr, Mrlliir v. Sirin; 4(! L.T. X. S. 437. The conduct was given to 
 the first a])plic:iut in lii' Wist, Wr.-tt v. Fnikiner, 7 C. L. T. 85. The carriage of 
 tiie jiulgineut may be chang(!d in case )f delay : /'iittifioii v. Scott, 4 <Tr. 145 ; 
 and see Ri'lix 45, 50, and notes. As between a separate creditor and a partner- 
 ship creditor of the person whose estate is to l)e administered, tlu^ conduct 
 d' the |)roceedings is given to the former: Jic Mcltav, Furitcr v. Duiin, 25 
 Cii. D. 1() ; 4S L. T. N. S. 544. 
 
 UOO. An order for the administration of the estate of aoniernmy 
 deceased person may be obtained by his executor or i]y"„'r"o",ai 
 jidministrator, and all the provisions of the foregoing Rules [J'J-'^^g*"''" 
 are to extend to applications by an executor or adminis- 
 trator. Chy. 0.471. 
 
 Where tlie aiiplication is made bv the jiersonal representative, it mav be 
 umhex imrtc : R< Dunlevn, Esten, V.C., Kith May, 18(il, Ord. H. 11, fo. 778 ; 
 Rf Etti\ (i R. P. 1.50. But where no sutJFicieiit gromid was shown for making 
 the order, it was refused : linrri/ v. Barrii, 10 (4r. 458 ; and it is clear that the 
 jiprsuiial re|)re.sentative cannot ai)ply for administration merely to obtain an 
 iiideiimitv by iiassing his accounts : Wliitc v. Cummins, 3 Gr. 002 ; Cole v. 
 (Hover, l()(;r. 302. 
 
 How far a deficiency of assets justifies a jiersonal re])re.sentative applying for Deficiency 
 administration is the subject of some doubt. In 1874 tirders were made on that ef assets, 
 tfroimd, on tlie application of the personal representative, in Swetiiam v. !'°Y-1*'^ *' 
 Swdnam, (! V. R. 140, and He Ettr, Ih. 150. But in the subsequent cases of Re },'iicatfoir''' 
 Shipman, Wallace v. Skipiiuin, 24 Gr. 177 ; Blake, V.-C, said that the rejisons {jy personal 
 which e.\isted for making the order m Re Ette no longer held good, and that the repreaeu- 
 personal representative, on being sued at law, could set up the deficiency of tative. 
 assets, and claim administration under The Admijiistration of Justice Act. 
 That Act, however, was in force when Swetnam v. Swetnam and Re Ette were 
 decided. In 1877 in Marsh v. Marsh, 7 P. R. 126, Spragge, C, held that the 
 course pointed out in Re Shipmaii should be followed, and refused the order ; 
 
766 
 
 Rule 970. 
 
 On (lertc'i- 
 cncy of 
 asHets, 
 personal 
 ropreson- 
 tatives 
 uiutit dis- 
 tribute 
 j)ari paHnu 
 auon){ 
 creditors. 
 
 Creditors 
 overi>aid, 
 may be 
 compelled 
 to rel'und. 
 
 Suit impro- 
 perly 
 
 brought, or 
 occasioned 
 by personal 
 represen- 
 tatives, 
 costs of. 
 No ac- 
 counts to 
 be ordered 
 of realty, 
 unless heir, 
 or devisee 
 served. 
 
 In case of 
 intestacy, 
 one or more 
 of heirs 
 must 1)0 
 notified. 
 
 Or in case 
 of testacy, 
 oneormoi'e 
 of devisees. 
 
 On defici- 
 ency of 
 assets, heir 
 entitled to 
 costs as 
 between 
 solicitor 
 and client. 
 
 I'HOCKEDINGS WITHOUT WRIT. 
 
 and in Be .lurk, .luck v. Jock, VA 0. L .1. X)H, I'nmdfoot, V.-C, did thcHumf. 
 On tlu) otlicv iianil, in Itc Jintiiilti/, bofore liliikt-, V.-C, 2Hth .lanuaiy, lH7H,tlie 
 <ird('r was granted, the ii|iplicant Iniving been sued hy one creditni' in the 
 l)iviHi()n Court, and anotlicr creditor iiavinfc written to iiiui, urgini,' him ti> 
 obtain the order. 
 
 As to the grounds justifying a pcr.'sonal rcpri'sentativc' obtaining adiaiiiiatia- 
 tion, see furtlier Rit/r 320 note. 
 
 An executor, who lias suffered a creditor of tiie estate to recover jiidtfineiit 
 against him hy default of appearance, cannot, on subse((uently obtiiininjf a 
 Judgment for administration, restrain the creditor from proceeding on his 
 judgment, even tiiough tin re be a deticiency of assets : iJimcr v. Rnxx, l!((ii. 
 2:i!t ; and set! Untrliiitxun. v. k'diiiiKOii, 11 (Jr. 477. 
 
 It is tile duty of an e.\ecutor, on a deficiency of assets, to pay :ill ircditiiis 
 juiii jiii.snit ; and even his rit'ht of retainer cannot be set tip so as togivf his 
 own delit any (>referenee, hut the lien of any creditor on the real or pcrsdiml 
 estate, created in tile lifetime of tlie dt.'ceased, is not to Ix' prejudiced Ijv this 
 rule : H. S. (). c. 110, s. .S2 ; MriiirH v. Mi'f/rrs, 20 (;r. lH."i ; Willin v. II7//m, L'i) 
 (ir. 2!t(> ; Jif /iiM.s, 2!) (Jr. 38,") ; foreign creditors are entitled to the siiiiie rij,'hts 
 as creditors living withi'i tlie jurisdiction : Mr Klnhc, Kiiitiiri nlla r v. (itM- 
 hnclit, 2S Ch. I). 17") ; 21 C. it. .(. 1")"), a creditor wlio has recovered execution 
 against tii(! executor has no priority : li(tnh "I Uiitiuli Nartli Aiiwrint v, 
 Afii/lorii, 17 <Jr. 102; and debts due by tlie deceased as trustee form no cxt'tii- 
 tion to tiie rule : /Innk v. Cdiiirr'tii, 25 (Jr. 300. And it would .seem, iintwith- 
 standing what is said iiy Mowat, \ .C, in Ihimr v. Rdss, siijirii : tiiut creditors 
 who have been overjiaid may be compelled to refund, on tiie api)licatioii of a 
 creditor who has not received liis due proportion: ('liitiiiln'rlniu v. ('Itirh',\ 
 Out. 135; it Ont. Ai)p. 273. J5ut a creditor's claim against a legiitcc or 
 creditor, wlio has been overpaid, to coui|)el him to refund, will be l)ari'ed in six 
 years from the time of tiie overpayment, notwitlistanding tliat the crcditoi's 
 claim against the testator's estate is not liarred ; lihikf v. (lulv, 31 Ch. 1). l!)li. 
 Tilis case was subsecpiently affirmed by the Court of Appeal, however, on the 
 ground that tiie creditor had acquiesced in the overpayment : .55 L. T. X. .S. 234. 
 
 Where an executor iinpro|(erly institutes a suit for administration lie niiiy 
 be ordered to pay tlie costs of it : Sullinin v. Sullimn, 10 (Jr. 04 ; or lie iimy Ix' 
 refu.sed his costs and comiiiissioii : (Iraluun v. linhnun, 17 Or. 310; and wlii'iv 
 he inipr()i)erly renders a suit necessary by a creditor, he may also be ordered to 
 I)ay the costs of it : Mc<<ill v. ('inirtice, 17 (ir. 271. 
 
 1I70. No accounts or inquiries in respect of the real 
 estate are to be directed, unless notice of the application 
 has been given to the heirs and devisees interestei' therein, 
 or one or more of them. Chy. 0. 472. 
 
 This Rule is merely declaratory of what has before been the [iractice of the 
 Court : Hrclen v. /t'lmin, 23 (Jr. 172, jifr I'roudfoot, V.-C. 
 
 In case of an intestacy of a iierson who died befitfe 1st .luly, 1880, tlie iicir, 
 or one or more of the heirs, must be ii party, or parties, to the application, 
 either as plaintiff, or defendant : I'ifinif/ v. Tifan//, (Jr. 158 ; but it is not 
 neces.sary, where tlifi-e are several, that all should be joined as defendants ; 
 Eiiiilixh V. Hoijlixh, 12 (Jr. 441 ; and in case of a person who died before 1st 
 .Fuly, 188(i, leaving a will, it is sufficient to make one, or more, of the devisees, 
 a party, or parties : Tijf'dnj/ v. ThompNim, (Jr. 244 ; where the executor was 
 also devisee of part of the realty, it was held that he sufficiently represented 
 the other parties intere.sted in the realty: Slcinirt v. I/ioi/fi; 14 (Jr. 132: 
 where a devisee is a party, it is not necessai-y that the heir should lie joined : 
 Fetinii V. J'rirfihiuni, 1 Or. 133. 
 
 Where, in an administration action, it is necessary to make the heir ii iwrty 
 defendant, he is entitled t(> be paid liis costs as between .solicitor an<l client, in 
 |)ri(jrity to the costs and claims of creditors, although the estate Jui'V J;'' 
 insufficient for the payment of the debts : Hartrick v. Quigky, 21 (Jr. 2i)( : 
 Tftriln-w V. Hmvell, 2 (jiff. 530. 
 
:aiiiing admiiiistia- 
 
 tlu' i)racticf of the 
 
 ADMINISTRATION. 
 
 767 
 
 In tho ca.w of iwrHons dyin^ HJiiix) tlu- iMt July, ISSO, the jHtrsonal rppnwcnt- 
 tativf, wlio ha.s oncainod iwliiiiniHtration of l)otli real and purHonal nstato, wutti- 
 cicntly rcpn'sents th(^ ival (>Mtati' : net', I{, S. (). f. ")(», s. "jH ; Ih. c. 108, h. 4. 
 
 A jii(lKmi'"t for the admiuiHtration of tlit- realty aloiit? will not Ixi granted, 
 imlfss till' pi'i'soiial I'state iian lii'i-n pri'vioiiHly adiniiiisti'i'i'd ; limi'm/l v. Murn's, 
 L. K. 17 Hq. ^0; Rr Aviii'iiu; Afnuy v. Ari'i'iin; 10 I'. K. 44S ; Imt sfp /><•// v. 
 Ay/, 2 dr. 140. 
 
 Altliuiififli it in not ni'Ui'SHary to servo all the jiarties interested in the realty 
 witii notice of the aiiplication for administration, they must, nevertheless, all 
 Ix'si'vvi'il in the Master's ottiee with an otKee copy of the judgment as prescribed 
 hy Hull 'M'2 : see note to that /iii/r ; jiarties who are not served will not lie 
 1)01111(1 hv the accounts ; Am-fis v. J},//, (Jr. 2:? ; Mnii v. \eir/„ii, .34 Clii. 1). 
 
 Rules 
 971-972. 
 
 I'arties to 
 be Hurveil 
 with juilg- 
 munt. 
 
 ijiiitiiiti, 
 
 DOUIKI liy I'le accoiiins ; iii//((.\ \.jiiii, a nr. ^,> ; ,miiii v. .tiniiiii, o-i \ 
 
 'M7. A party improperly served mav move to set aside the service: J{i' iS, 
 llett.s \. /;.7/.s 54 r.. T. N. S. .'lOl. 
 
 !>7l. Alter inquiries directed in respect of the personal 
 estate, the Court may, in a proper case, after notice given 
 to those interested in the real estate, or to one or more of 
 them, make a supplemental order in respect of the real 
 estate, upon such terms as the Court sees tit. Chy. 0. 473. 
 
 It is now customary, whenever an administration of the realty is likely to be 
 rwiuircd, to serve all the imrties necessary tube served, in order to obtain an 
 Hdmiiiistration of both realt,\ and personalty, and a judgment is then awarded 
 for the administration of both the realty and jiersinialty. And whenever the 
 realty is the primary fund for the iiaynient of debts, it is absiilntely nece.ssary 
 that this should be done. 
 
 As to the parties to be notified in order to obtain an administration of the 
 realty, see note to preceding lti'/<\ 
 
 Accounts 
 of realty 
 may bo 
 directed by 
 supple- 
 mental 
 order. 
 
 WUore 
 
 adminis- 
 trntion of 
 realty re- 
 quired, 
 order may 
 be nade in 
 ttrst in- 
 stance. 
 
 W73. Any adult person entitled to apply, under Rules Aduit per- 
 965 or 909, for an administration order may apply to the appi'y to 
 Master in the County town of the County (other than the toTor^'*"' 
 County of York) where the deceased person, whose estate ^^^^'J^j'JJj^j^j 
 it is desired to administer, resided at the time of his deceased 
 death; and the Master may, on 14 clear days' notice estat°e" " 
 being t>iven to the person or persons entitled to notice ^,^gfte.*"®' 
 of such an application, make an order for the adminis- 
 tration of, and proceed to administer such estate in the 
 least expensive and most expeditious manner. Chy. 0. 638. 
 
 Tile jurisdiction of the Local Masters under this Rule is confined to ap])lica- Master 
 tiimsniade by adult persons ; where an administration of an estate is sought cannot en- 
 iju behalf of an infant, or where the person whose estate is to lie administered *®V**i^^ ^P" 
 (lied ill the County of York, the apiilication must lie made in Chambers at [J''^fj"^^tg_ 
 Os^oikIp Hnll ; or in some cases it may be neces,sary to commence an action by 
 writ for that [nirpose. When the api»lieation is made by jiersons claiming as I'ersonal 
 creditor-i, or as specific, jiecuniary, or residuary, legatees, or next of kin, notice I'epi'esen- 
 must be served on the personal representative of tho deceased person "hose ^^j^g^^^g 
 estate is sought to be administered ; ;viid where an aflniinistration of the ri.'alty be served, 
 w i'e((iiired, unless the apjilicant himself be entitled to some interest therein, 
 wmie one or more of the heirs or de\ isees interested therein must be served with 
 notice of the apiilication : /iiilr 070. 
 
 In oases of estates in the County of York, there wonld seem to be no iiower 
 given, even to a Judge in Chambers, to niM.ko tlie order contemplated by this 
 mlc for the winding u]> of the estate without reserving further directions. In 
 
 u ' ■ ■ 
 
 '^i^< 
 
 
 
 
 /<' 'r ^' . 
 
 y 
 
 fee 
 
 
 r 
 

 
 768 
 
 Rule 972. 
 
 procp:edinqh without writ. 
 
 li's uiilesK 
 
 Anplica- 
 tioii may 
 1)0 niado 
 
 h\kU case till' order wliieli iiiiiy l)o made would seeiii to Im an order for 
 iniiiiiric.-i rcMcrxiiiK further directioiiH and cosIh ; Mee j\\)\>. Form 1K7, und i( 
 will lie made under ii/^/cv 30 and !)(»"), liefure the Master in Chamlii 
 opposed, 
 
 (!hy. ()r<l. 4(17, inider which similar ap|)licatii)ns were authorized to IpeiiuKJi., 
 
 was formerly held to apply to siiuiile cases only, and where exi'i'iilori were 
 
 tliouuh wil- '''"'''*^'''' ^^''^'' niisconduct, it was held that a hjlj niust lie tiled, Init :i ditfcrctit 
 
 ful noK'luiit construction was suhseipiently placed on thai Order; the earlier' euses indccHJod 
 
 II nd default to some extent on the (frouTKi that under the common order for adniiiiistniliuii, 
 
 cliavh'od. an in(piiry as to wilful nej;lect and default could not lio made, unless ihc unifi' 
 
 were ohtaiiied liy the jiersonal representative himself: JliirriKim v. Midlaifliiiii, 
 
 7 <«r. .Wl ; Lfi/iji rwoiiil v. Lnli, rirooil, Ih. 'M \ lint it is now held (l;,tt the 
 
 in(j[uiry as to wilful nejflccl "r <lefault, may lie niaile in all cases, and tiieruforc 
 
 it IS no lonj,'er a sutticieiit reason for not iiriKieedin^r liy summary apiilicatioii 
 
 instea<l of liy action, that an iiupiiry as to wilful ne^flccit and dcfnilt i> 
 
 required; lli' A/lin, /'uriick- v, Alhn, !( !'. U. 277; as to cases in wliicii it i^ 
 
 tu commence an action for ailministration by writ: see n(it< tu 
 
 Writ of 
 MunimonH 
 wliero ne- 
 cessary. 
 
 jirojier ti 
 
 CoHtH, 
 
 where writ 
 issued 
 uunecos- 
 Harily. 
 
 .\dmiuis- 
 
 tration. 
 
 wlieii 
 
 estate of 
 
 trirtin),' 
 
 aiuuunt. 
 
 When a j)lai'ititf uiniecessarily issues a writ for administration, iiisti';if! "f 
 a|ip yiiit,' for a jud^nient on notice, he is 7iot entitled to the extra cost , tiicrcliy 
 occasioned: Surcrii'in v. Son riiitii, l.") (ir. ;V)!( ; and where it is ncit cleiir 
 whether the proceeding' liy writ is unnecessary the costs will be reserved until 
 further directions : Ehi rtK v, Khcrtu, 25 (Jr. ,')(J5, 
 
 When the estate in (piestion is small, a suit for administration sluHild not W 
 brou)j;ht until 'ill leasonable means of avoiding,' the suit have been exlmustwl; 
 and where a next friend of an infant browjjfht a suit for adMiinistriitidii, 
 without havinj^ taken steps to avoid litigation, and the suit afterwiU'ds 
 appeared to have been umiecessary, he was ordered to pay the costs of the suit: 
 Hitli'liiiiKoii V. Sariiiiit, 17 (tr. H; McAuitirii' v. Lnjlnmiiic, I'.l Hi: ]'Xi: M xlir 
 V. Li'.ilic, 12 (rr. r)37 ; and see J'r JohnKlnii, Jolnmion v. IIoiii/, 25 (!r. 2(il ; 
 Cn-ro/l v. Carrol /, 2^ i\\\ i'.iS. 
 
 Where an executor in answer to an application for administration swtire that 
 the personal estate had not exceeded ■'i<50, the Court before it would iiiakt'iiii 
 order for administration, reipiired tln^ ajiplicant to file an affidavit stating timt 
 he had reason tti believe, and did believe, that the result of the pniceeiliiijfs 
 would show a substa7itial balance of iier.sonal estate to lie divided aniuiij,' tlie 
 lej,'atees : Faxtirv. Fnxtir, 1!) (Jr. 4(!3. 
 
 Administration was refused on the ai>plication of a legatee wlmsc claim, 
 including interest on his legacy, only amounted to 82H, notwithstanding tliat 
 it was alleged that other legacies renniined unjiaid, which amounted to a cim- 
 sideralde amoimt: Jtiinioh/s v. ('oppiii, 111 (Jr. (127; and see Jtf ./nhiiatdii, 
 Ji>hii!<(<iii v. IIirKi, 25 (Jr. 2(11. 
 
 And where a creditor l)rings an administration suit, after being infiiniid 
 that there are no assets ajiplicable to the ])ayment of his claim, if tin- 
 information apjicar by the result to be substantially correct, li<' may iiavc 
 to pay the costs of tht^ suit : The (.'itii Bunk v. .Scdti-hml. IS (Jr. 1S5: and sn 
 also a next of kin, or residuary legatee, mniecessarily bringmg a suit, iiiiiy 
 be ordered to |)ay ne costs of it : see I'ltisill v. Kmuahi, 22 (Jr. 117; li' 
 Wotiilhdll, (liirhi'it v. Hiirxon, 2 Out. 4.5(> ; so also a trustee: Itc CiO'liuri),\i> 
 L. T. N. S. H4H. 
 
 A legatee, or next of kin, cainiot apply for iidministration imtil the expiw- 
 
 next of kin, ^jy^ „f .^ year fnmi the death of the i)erson whose estate is sought lo be ndmin- 
 
 cannot ap- i^tercd : 'SUtler \'. Sliitn-,^G\\\.G\\. 1; Vician v. \Vi'Mniok<',V.)V,T. M\\; <!rm( 
 
 V. (irnnt, 9 V. R. 211 ; but see cuntra, WaUis v. Wullis, y Ir. Chy. 511 ; Pivssn 
 
 V. Mossvp, 2!) W. R. 439. 
 
 Where land is devised subject to the payment of an annuity, so long as the 
 annuity is promptly paid the anmiitant cannot claim to have the land sold ; R' 
 Putter, Potter v. ">tter, 50 L. T. N. S. 8; and where a ■will creates a life estate 
 in chattels, the executor is discharged when he hands over the chattels to the 
 tenant for life ; the latter, and not the executor, then becomes liable to the 
 remainderman : Re Mitnaie, 10 P. R. 98 ; 20 0. L. J. 112. 
 
 ■Creditor, 
 lo'^atcu, or 
 next of kin, 
 bringing 
 unneces- 
 sary suit- 
 costs. 
 
 Legatee, or 
 
 fdy until 
 apse of a 
 year from 
 death. 
 
AUMINIHTRATION 
 
 769 
 
 ) till an iinlcr for 
 
 Fnnii 1M7, 1111(1 it 
 
 I Cliaiiit)('i's iiiilcsK 
 
 liorizcd Id lie liwuli', 
 icrt' cxccuiiirK were 
 iled, l)Ut H ilitfcrciit 
 licr cases |ii-iit'ce(lpil 
 
 for ailiiiinistratioii. 
 Ic, imlt'ss till' iirdiT 
 '/«))( V. MiiiliiKlitin, 
 
 now lifld th.it the 
 KiiHf.s, anil tiifriifiiri' 
 nniiiai'.v a|.plicati(ii, 
 lci!t ami (Icf'iult i. 
 asfs in wliii'h it is 
 
 writ : HOI' not* to 
 
 islration, insh>ad nf 
 ■ extra cost . thereby 
 liffc it is luit clear 
 ill he rcst'ivt'd until 
 
 ration slimild not W 
 iivf hci-n cxliaustwl; 
 
 for adiiiinistration, 
 the suit aitcrwanls 
 the costs of tliesuit: 
 
 1!» dr. I'.ia; .1/ WiV 
 . Hoi III, -5 <ii'. '-'''1 ; 
 
 nistration swore that 
 ji-e it « ould make an 
 attidavit stating that 
 t of the iiroceediiij?!* 
 )e divided among the 
 
 leg'atee whose elaim, 
 iiotwitlistanding that 
 h ainouiitcd to aeon- 
 lid see -/^' .IdhiifUin, 
 
 after liciiifr infonued 
 of liis claiiii, if the 
 correct, lie may have 
 d, l.Sdr. isr)-. and so 
 liriiiKint,' n ^'"it. "w.v 
 iHihi, -l-l (ir. 117; 1^\ 
 iistee; Itc C(il>l'iii'it,K 
 
 ition until the expira- 
 i.s sought H) be adnnn- 
 -,,</■<■, 1!) dr. 401; ''>"«' 
 I Ir. Chy. 511 ; Pr"^>" 
 
 annuity, so long fis the 
 liave the land sold ; lie 
 ill creates a life estate 
 jver the chattels to the 
 becomes liable to the 
 
 When the a|>i)|)lieatiim is made by a creditor, who.te claim in dixpnted, he 
 niiiit establish his <lel)t liy proper evidence, IiIh own uncorroborated uttidiivit i.s 
 
 liiit sutticiellt ; f'iniiil V. Wfs/linu,/,;; I'.Mir. Ilil. 
 
 A suit iiiincce.s.sarily liroUKht by ii residuary legatee idaiming, but failing,' to 
 i.tablisli liiniself, to lie a ereditor, was on further direcrioiis dismissed with 
 
 iiistH; Jlr .liihii'iloii, .liihiisliin v. J/ai/il, 'S> dr. .'"ifU ; and see !{>' W'iiiiiIIkiII . 2 (till. 
 PI; and ;. residuary legatee of money and stock'., subject to a prior estate for 
 life, is not entitled, as of course, to have the property brought int(, Court to be 
 adiuinisteied ; aiul wliere the f'liid i.s invested in the names of jiroper trustees, 
 and in |iio|ier securities, the Court will refuse to intei.''ere : Rf JiruithuKti/r, Jl, 
 V, llr^//'.s, -.'1 Cli. 0. 121 ; 4H L. T. N. S. h:,7. 
 
 Where the prisoiial repi'eHitiitutive makes an application for the admiiiistra- 
 tioiiof the personal estate, the apj)lication may be (^'ranted cr fxirtr : }icr I'Isten, 
 V.-t'., Hi hinil,,-!i, see Order liook 11, fo. 77H : 7iV KlU; (i V. K. bVi ; He 
 J!,nmh!j, bel'mv JJlake, V.L'.,28th .January, 1878. 
 
 There a|)pears to be some conflict of authority as to whether a deficiency of 
 assets, for tlie payment of debts, is a sufticient ground for the jtersonal repre- 
 sentative to apply to the Court for administration ; see cases cited ante in note 
 U> liiilf W>'f. 
 
 The personal re[)re.sentative is entitled to bring a suit for administration in 
 order to obtain an indemnity in respect to leasehold estate-.; Id' liiisir'iih^ 
 liiiivid v. I'Mstiiii, 45 L. T. Is. iS. I'Kj; but lie has no right to institute a suit 
 for administration merely to obtain an indemnity by pa.ssing hi.t accounts : 
 W'liitiw (' II III III I II. s, 3 dr. (102; Cn/i' v. li/iiiri; 1(! dr. 3!t2; Jiitni/ v. Jiorri/, 1!) 
 i'xi: 4.")M ; and he may be refused his costs of a suit if unnecessarily brought: 
 iiriikiiiii V. Jiiilimui, 17 (Sr. 31H ; Spriiiijcr v. Claikc, 15 dr. (Uii ; but see 
 Fiirri'ir V. Aii^/ni, 18 Ch. 1). .58 ; 45 L. T. N. S. 227 ; Mi McCM/iin, McVliHiin 
 V. MiCMliiii, 2',l Ch. D. 4!I5; 52 L. T. N. S. 741; or he may be ordered to 
 pay the costs of tliesuit; Sul/intn v. SntHnin, IG (ir. 1)4; Iti' Jliin'ni, lliiijhi's 
 V. 'Diiii'iii, liefore Uoyd, C., 13tli May, 1884 ; or the costs of a suit brought liy a 
 ereditor or legatee, rendered necessary bv the action of the executor : Mc't'ill 
 V. Ciiiirticr, 17 (ir. 271 ; Jt< Ruilcliffi; I'litiw v. RiuMiffi; 44 L. T. N. H. !)(> ; 
 oO L. .1. Chy. 317 ; h'i/liiiK v. Killiun, 2!) (Jr. 472. An a])plication was held 
 projier where one of the legatees was absent from the I'rovince and the 
 ,xei;iitor has taken proper steps to find him. and could not get a discharge 
 witlumC coming to the Court: JU' Wmli; 18 dr. 485. So also executors 
 have been charged with so much of the costs of the reference as were 
 iiiuiirred in establishing charges against them which tiiey disputed : •'<tiwiiit 
 w Fliklin; 18 (ir. 21; SiaiUi v. Ror, ]1 (ir. 311; Jlulil v. Tliwnjisim, 17 
 (ir. ],")4 ; and see Anlihoitiih v. AhIiIiiiiiiiIi, 10 dr. 43.3. But an executor 
 may be allowed his costs though he have committed a bre'ach of trust, 
 if the estate has suffered no lo.ss : Wiitrd v. (hihlr, 8 (ir. 458. But .i per- 
 siiiial representative in default w.as Indd not entitled to costs until he had 
 made good his default: Rr liimhitn, Haiinaii v. linxhum, 23 Ch. 1). 1!»5; 48 
 L T, X. S. 470; McKinin v. Crombic, 25 Ch. D. 175 ; 4!» L. T. N. S. 4!)!>. In 
 Telib.i V. Ciiriinitcr, 1 Mad. 2!)0, it was laid down tliat if the suit would have 
 h.'eii proper, and the executor a necessary (larty, if tlieexecutor had not mis- 
 ciiiducted iiiin.self, he ought not to jiay all the costs of tlm seit, though in the 
 course of the suit it apjiears he has misconducted himself ; but if the miscon- 
 duct of tiie executor was the sole occasiov "f tlu- suit, he tuight then to jiay the 
 costs. 'I'his riilti was apjiroved in >\mith v. huiir, 11 dr. 321 ; and iSiiitfuun v. 
 Unriie, 28 (ir. 1 ; but see remarks in the latter case at j). !). 
 
 Wiieie the guardian ml litem of an infant d(>fendant had made no objection 
 to the unnecessary proceedings, no costs were given idther to the executors or 
 the guardian, of such proceedings : Sprimjir v. Clark, 15 dr. 004. 
 
 Uheretliere is more tlian one personal representative all must be notified, 
 notwithstanding that one of them be resident out of the jurisdiction : Re 
 Frechuni, Freehoni v. Carroll, (J P. li. 188. A judgment for administration 
 tonnerly could not be maile against an executor dc son tort, where there was no 
 legal personal rejiresentative before the Court : RonwU v. Morris, 17 L. R. Eq. 
 3) ; Outram v. Wyckoff, P. R. 150 ; Re Coltoii, Fisher v. Colton, 8 P. R. 542 ; 
 but see now Ride 312. A creditor making an ai)plication must be a creditor of 
 
 i.x. 49 
 
 Rule 972. 
 
 Creditor 
 must prove 
 liiHchiini. 
 
 Itesiduary 
 loKatet) 
 lirin^ing 
 uimeeuH- 
 sary suit. 
 
 Applica- 
 tion Lyper* 
 Buual reps. 
 
 Suit to ol- 
 taiii in- 
 ilemnity 
 against 
 covenants 
 iu lease. 
 
 Personal 
 represen- 
 tative mav 
 be onlored 
 to pay costs 
 of unneces- 
 sary suit, or 
 of suit ren- 
 dered ne- 
 cessary by 
 bis niis- 
 couduot. 
 
 A)l the per- 
 sonal 
 
 reps, to be 
 notified. 
 
 Executor, 
 dt son tort. 
 
,<::<. 
 
 W i 
 
 
 770 
 
 Rules 
 973. 974. 
 
 In simple 
 cases only 
 one report 
 necessary. 
 
 Mi.ster 
 may give 
 B^iecial 
 directions 
 as to con- 
 duct of pro- 
 ceedings. 
 
 PROCEBDINGS WITHOUT WHIT. 
 
 the deceased person, and notmerely a creditor of bis executor or administrator; 
 thus, an application by a ]>erson wlio had niiule ad\ances to tlie exucutor 
 was refused : Campbell v. JSiil, 10 Gr. 115; Fctihall wFarhalt, 7 L. K. Cliy. 123; 
 Re Pettcc, McKinhii v. Beadle, (i P. R. 157; Ewart v. Steven, 18 (ir. 35; Slilh y] 
 (httle, 17 Gr. 335 ; Ilii'jhes v. Hwjhea, (> Ont. App. 378; but see J/eiiri/ v. .SAor/i, 
 18 Gr. IG, where a decree was made by consent. A jiloinliff who luul made 
 advances to pay debts of a deceastid per.son to save the estate the costs of suits 
 to recover the same, was held entitled to adm.nistration : Ulans v. Muiisen, 12 
 Gr. 77. 
 
 In simple cases, where all parties interested are represented before tlie 
 Master, it would be possible, under this and the folio ./ing Hulex, for the 
 Master to defer making any report until the accounts were taken and the 
 estate realized, and then by one general rei)ort, to wind up all matter 
 connected with the estate, and this course is i)ursiied wherever practicable. 
 
 Under Rule !)()8 the Master would have power to give any special directions 
 he might think proper respecting the carv'age of tha judgment, wliere there arc 
 conflicting claims, and also to transfer its carriage from one party to anotiier, 
 if (X3Ciision should require. The rule being to give the coniiuct of the pnweed- 
 . ings ceteris parihu.t, to the party most interested in jn-osecuting thtnn |)ro|ier!y 
 and economically : Perrin v. J'en-in, 3 Ciiy. Ch. 452 ; lie JJiai/i/aii, S P. K. 
 330; and see lie AUamx, Adavm v. Muirhead, 1*. R. 283; Ldinbier v. 
 Lamhier, 9 P. R. 422 ; Me Prime, 48 L. T. N. S. 2()8 ; see, however, lie Swiv, 
 Mellitr V. Swire, 4(5 L. T. N. S. 437 ; TowMcml v. Townneiid, 23 Ch. 1). 1(K(; 4H 
 L. T. N. S. «!t4, Rfi \Ve.n, West v. Falkiner, <J C. L. T. 85, where it wa.s liekl 
 that the party first originating proceedings was entitled to the conduct. 
 
 The administraticni of two estates may be consolidated, where intimately 
 connected : Be Adams, Ailanis v. Mnirhead, G P. R. 283. 
 
 For form of iudgment on applications under this /{nle, see Apj). Form No. 18."). 
 
 The order made on any application is to be drawn up and entered as a judg- 
 ment : Rule 54C. 
 
 iwfeftiiT t^TS. The Master sluill have full power to deal with 
 
 power to both the realty and personalty of the estate, the subject 
 
 reaity'and of administration, and shall disijose of the costs of tbe 
 
 Sdiapos^e Proceedings, and shall finally wind up all matters eoii- 
 
 of costs, nected with the estate, without any further directions, and 
 
 without any separate, interim, or interlocutory reports, or 
 
 orders, except where the special circumstances of the case 
 
 absolutely call therefor ; and in so doing he shall be guided 
 
 by the practice in the administration of estates upon an 
 
 application made in Chambers for an administration order. 
 
 This Rule was formerly a part of Chy. Ord. (539. See note to following liuh. 
 
 fuzeatot'e '*'7'*' "^11 moneys realized from the estate shall at 
 
 paid into ouce be paid into Court, and no moneys shall be dis- 
 
 not'paid" tributed or paid out for costs or otherwise, without an 
 
 muS's ordev of a Judge in Chambers or the Court, and on tlie 
 
 order. application for such order, the Judge may review, amend, 
 
 or refer back to the Master his report or order, or make 
 
 such other order as ho deems proper, and no order for 
 
 payment out shall bo made until the purchaser has 
 
ADMINISTRATION. 
 
 771 
 
 Rule 97«. 
 
 id, where intimately 
 
 Jlule in- 
 tended to 
 do away 
 with fur- 
 ther direc- 
 tions in 
 adminis- 
 tration 
 suits. 
 
 Judgment 
 form of. 
 
 Powers of 
 
 Master 
 
 under. 
 
 consented thereto, or has been notified of the motion. 
 Chy. 0. 639. 
 
 The object of this and the preceding Biih'. is to do away with th'.i necessity of 
 ahearinff on further directions in administration suits ; the judgui'-nt granted by 
 the Master covers all those directions, which, by the fonnerpract-ae, were usually 
 made on tlie hearing on further directions, except the order for payment of the 
 fund out of Court; f.//., it directs anybalances found in the hands of aceounting 
 parties to be j)aid into Court, it also authoriiies a sale ot the Und, the payment 
 of the purchase money into Court, the execution of conveyances by all proper 
 parties, antl eniiiowers the Master also to execute such conveyances h>r infants, 
 who are incai)able of executing the same themselves : .see App. Form No. 185 ; 
 Rules sy, 97, 107. The Master has also power to make any order, or report, which 
 may be necessary for comjiletely winding up the estate, orjjrotecting the rights of 
 the parties to the suit ; for example, if it should become necessary to appoint a 
 receiver, or grant an injunction, it would seem that it is intended that the 
 Ma.ster shall have power to make the necessary order therefor : see Ee Patterson, 
 Catfon v. Patttmnn, before Froudfoot, .)., 23r'<t Nov., 1881 : scd quwre, and see 
 .Sdlirtin v. Ilartji, !t P. R. otM*. Wliere the executor is insolvent a receiver may 
 Ik; appointed : karrohl v. W'allis, !* Gr. 443 ; and it would se^jm that a receiver 
 may be appointed, when necessary, in proceedings commenced under Rulea 
 !Ki5, 972 : Re Franckc, Drake v.' Franke, 58 L. T. N. S. 305. 
 
 The words "without any separate interim, or interlocutory rejKirts, or orders. Separate 
 exueiit where the special circumstances of the case absolutely call therefor," orders and 
 indicate that it is onlv unnecessary orders, or rei)orts, that .xre dispensed with, *^f,Vy '/„ vjo 
 but tliat so far as sucli interlocutoiy reports, or orders, may be essential to the ^^.^g when 
 winding \\\i of the estate, the Master is to have power to make them. Under essential. 
 Rule 67, a party directed by the Master to bring in any account, or do any 
 other iict, is to be held bound to do the same in ijursuanee of the direction of 
 the Master without any warrant, or written direction, served for that pur|)Ose. 
 The ])rovisions of that I'nle, of course, only apply when the party attends 
 the Master in person or liy solicitor, and has notice of the direction. 
 
 The Master should not proceed with the reference i:r parte, even though the Master not 
 defendant did not appear on the motiini for judgment ; Jackson v. Matthews, to proceed 
 12 Gr. 47 ; Rohiason v. Wh itcoiahe, 20 (4r. 415. '^ *"'■'''• 
 
 Under the ordinary iidininistration order, it has been held that the Master Accounts 
 may take an account of timber cut with wjiich a defendant is chargeable : which may 
 litetrart v. Fhiclur. 18 Gr. 21 ; and may also, without any special directions, be taken 
 take evidence, and report the facts, as to iia.yments made by executors for the ^In^'J""' 
 maintenance and education of infant beneficiaries : Utewart v. Fletcher, 16 Gr. adminis- 
 235; and may also take the accounts on the f(K)ting of wilful neglect and tration 
 default ; and when t'>»' widow of the deceased is found a debtor to the estate, judgment. 
 her indebtedness may be set off against her claim for past and futtire dower : 
 ll'iV/iVn/i.s V. Reiinolih, 25 (Jr. 49. The Master would have similar powers under 
 a judgment awarded by himself, h(> would also be entitled to make all projier 
 allowances to executors, administrators, and trustees, by way of compensation 
 for their services. 
 
 Where a legacy is given to executors as com|)ensation for their services, they 
 are not ])recluded from claiming a further sum under the statute if the legacy 
 be an insufficient remuneration : Denison v. Denison, 17 (ir. 30fi : see, however, 
 Kenned// v. PiHiile, 27 (Jr. 305 ; Williams v. Roi/, 9 Ont. 534 ; and see supra p. 
 173. In tiie event of a deficiency of nssets such a legacy does not abate with 
 other leg.acies : AmO-rsov v. Doiujall, 15 (ir. 405. Such i\ legacy jirecludes any 
 presumption that the executor is entitled t(> the undisposed of residue: Loveless 
 l-CI'irkc, 24 Cr. 14 ; but see Bo.i/s' Home v. Lewis, 4 Ont. 18 ; 3 C. L. T. 211. 
 
 „'"'".''' '*'"'' '^^'^■'^ brought by an executor unnecessarily, the Court refused to 
 allow him any commission : draham v. Rethson, 17 (Jr. 318. But where executors 
 had acted improperly, the Court, although allowing tliem comjiensation, refused 
 them their costs of suit : Kenned u v. Pimjie, 27 (Jr. 305. The omission to keep 
 a regular set of txH)ks is not alone a sufficient ground for refusing trustees com- 
 pensation : Life Association of Scotland v. M'alker, 24 Gr. 293. 
 
 Compen- 
 sation to 
 executors, 
 etc., may 
 be allowed* 
 
 EiJect of 
 legacy bjr 
 way of 
 compen- 
 aatiou. 
 
^m^^mm^m^^^'^ , ^_ ^mit^'v^^m 
 
 ^ 
 
 ^i^. 
 
 772 
 
 Rule 976. 
 
 Misconduct 
 of executor, 
 effect of, on 
 right to 
 compeu- 
 satiou. 
 
 Compensa- 
 tion prior 
 to claims of 
 creditors. 
 
 Order for 
 payment 
 out of 
 Court can- 
 not be 
 made by 
 Master. 
 
 Applica- 
 tion to 
 Judge for, 
 how made. 
 
 When an 
 appc.il 
 from Mas- 
 ter neces- 
 sary. 
 
 Master to 
 enquire as 
 to out- 
 standing 
 estate. 
 
 And to 
 compute 
 interest on 
 debts and 
 legacies. 
 
 Master not 
 to proceed 
 ex parte. 
 
 Proof of 
 persons ne- 
 cessary to 
 be served 
 with judg- 
 m'ent. 
 
 Service 
 may be 
 diiuensed 
 With. 
 
 PROCEEDINGS WITHOUT WRIT. 
 
 Nor is the fact that a balance is found against an e.xecutor, part of which k 
 occasioned by the allowance of a surcharge, alone sufficient to di.sentitle him 
 to compensation : Sievewight v. Ley.s, 1 Ont. STS ; McCardle v. Moan', 2 Ont, 
 22&. An executor, not being a trustee of the realty, is not entitled to receive 
 the rents thereof, and if he do, he is a mere internieddler, and not entitled to any 
 compensation in resjiect of such rents : Dngn v. Ba;/;/, 25 Gr. M2 ; and C3e B( 
 Brazi'll, Barry v. Brazill, 11 Gr. 253. Since The hcvolutiun af Entotet Act, 
 however, the rights of personal representatives in regard to the real estate are 
 materially changed. See further as to principle on which compensation i.s 
 allowed. Rule .57 note. 
 
 The executor's claim for compensation is prior to the claims of creditors ; 
 Harrison v. Patterson, 11 Gr. 105 ; and a trustee's claim for comi)ensatioii must 
 be satisfied before a conveyance of the trust estate to the cestui que trust will be 
 ordered : Life Association of /Scotland v. Walker, 24 Gr. 293. 
 
 The only order which the Master is precluded from makini; in suits for admin- 
 istration, or partition, in which he has awarded judgment, is that for the pay- 
 ment out of the money in Court ; but the Master should state the amount of 
 the commission, and what he finds would be a proper ai)»ortionment thereof 
 among the different solicitors under Jiule 1187, and also the amounts he finds 
 payable to creditors, and other beneficiaries, respectively. 
 
 The order for payment is to be made by a .fudge, or the Court. Application 
 for this order, incases in the Chancery Divi.sion, is to be made in Chaiiilwrs on a 
 Monday : Chy. Ord. 51M) ; Bule H. C. J. iv. ; (see, however, Rule 211, which 
 for the present is suspendf^d) in the other Divisions the motion may be made 
 on a Tuesday or Friday. The application is to be made ujwn notice ; and it 
 would seem that all jiersons who, under the former practice, would be entitled 
 to notice of a hearing on further directions, would be entitled to notice of such 
 an application. 
 
 Where a party is not satisfied with the findings of the Master, the Jud|?e, on 
 any motion for distribution, may, on notice boing given by the complaining 
 jiartytothe other parties, review the Master's decision without an a])pal, if 
 the matters oom]>lained of can be investigated and di8iK)8ed of on readnig the 
 pleadings (if any), and judgment, and the Master's rt'ixjrt without reference to 
 the evidence ; otherwise an ai))x;al in the usual way under Rule 848, et iiq. 
 is necessary Kemlrick v. Kendrick, fl C. L. T. ^10. 
 
 OT5. In taking an account of a deceaBed's personal 
 estate under an order of reference, the Master is to 
 inquire and state to the Court what, if any, of the de- 
 ceased's personal estate is outstanding or undisposed of; 
 and is also to compute interest on the deceased's debts 
 from the date of the judgment or order, and on legacies 
 from the end of one year after the deceased's death, unless 
 any other time of payment is directed by the will. Chy. 0. 
 474. 
 
 The Master ought not to jiroceed ex parte, even though the defendant 
 did not upi)ear on the motion for administration : Jackson v. Matthiws, 12 
 Gr. 47. 
 
 Before proceeding to take the accounts, the Master should require the 
 necessary evidence to be brought before him, to show who are the parties, 
 if any, who ought to be served with an office copy of the judgment as 
 ])rescribed by Rule 322. The Master should direct on whom the judgment in 
 to be served, and he may also dispense with service, on any partie.s, as he may 
 think fit : lb. 
 
 Service may be dispensed with on parties whose apparent interest is small, 
 and where there is difficulty in effecting service, and other parties in the same 
 interest ore already represented, or directed to be served with the judgment; 
 
ster, the Judge, on 
 
 Rule 976. 
 
 Persons 
 served do 
 not become 
 ])artieB to 
 the action. 
 
 Hut on uo- 
 tico to 
 plaintiffs' 
 solicitor 
 may at- 
 tend pro- 
 ceedings. 
 
 ADMINISTRATION. 773 
 
 mere difficulty in effectinsr service would not alone be sufficient ground for 
 dispensing witii service. 
 
 Parties wlio are .served with an office copy of a judgment under Rule 322 do 
 not tlierehy In^conie parties to the action, they merely acquire a right to attend 
 the prouewlinfTs on giving notice of tlieir de.sire to do so to the plaintiff's 
 solicitor, but tlu'y are bound by the proceedings as though they were actually 
 l)arties to the action. Kni/lisli v. liuijlixh, 12 (xr. 441 ; and see supra p. 352. 
 
 Parties so served may give notice to the plaintiff of their desire to attend 
 the proceedings, and are then entitled to be .served with the ai)ix)intments in 
 the Master's office, and with notice of the motion for distribution ; but 
 when ii person served with the judgment, does not notify the plaintiff of his 
 desire to attend the proceedings, he is not entitled to notice of the proceedings 
 in the Master's office, nor of the motion for distribution : see Rule 3:'2 note. 
 
 Persons so attending, however, are not, as of course, entitled to the costs of 
 so doing out of tl.i', estate, and imless the Coiirt is satisfied that there was some 
 good reason for their so attending they will be left to bear their own costs in 
 any event ; and may be ordered to pay the extra costs occa.sioned by his 
 unnecessary attendance ; see supra p. 352. 
 
 Parties served under Rule 322 cannot be required to account : see«/i<e p. 352. 
 
 Where the Master finds any persons (not coming within Rule 322), ought to 
 be made parties, and enabled to attend the pnKseedings, he may add them as 
 parties under Rule 40. Persons added under that Rule become parties to the 
 action, as if they had been originally made parties to the writ. 
 
 The direction contained in Rule 075, as to the allowance of interest (m debts, 
 applies to debts not bearing interest, prior to the date of the judgment. The 
 judgment for administration, as has been said, operates as a judgm<!nt for all the 
 crediUjrs of the estate for the amount of their respective debts, and con- 
 sequently from that date they bear interest ; lint where a creditor is entitled to 
 interest from any i)riordate, by virtue of any statute, or any contract, expressed 
 or implied, the Master may .allow such interest. But where a sum is payable at a 
 certaui day, witii interest, there is no implied contract to pay interest at the 
 same rate after default ; and even where the same rate has been i)aid for many 
 vears after defaidt, there is no iinj)lied contract to continue doing so : He 
 'MteriK, (lonMiup v. Rohcrt.i, 14 Ch. D. 4!»; 42 L. T. N. S. Witt ; t'onke v. Fowler, 
 L. R. 7 H. L. C. 27 ; IMhi/ v. lliimphrei/, 37 U. C. Q. B. 514 ; .Simnntvn v. 
 Orahxtm, 8 P. R. 405 ; as to what is a sufficient demand of interest within the 
 Jud. Act s. 8(), s-s. 2 supra p. 80 ; see (leake v. Hoss, 32 L. T. N. S. (IGG. 
 
 General legacies payable out of personalty V)ear interest frt)m the expiration 
 of a year from the testator's death, unless the testator was the legatee's debtor, 
 or being a jjarcnt or standing in hici> parentis to the legatee has made no 
 provision for the maintenance of the legatee who is an infant : interest on 
 legacies charged on land, bear interest from tiie testator's death : Aalihurner v. 
 Mucgiiire, 2 Tudor's L.C. ((>th ed.)308; but where the legacy is payable out 
 of the proceeds of the sale of land, the interest does not run until a year from 
 the death : Turner v. Jiuek, 18 L. R. En. 301 ; but where the sale was ix)8t- 
 poned by the testator till after tiie dciatli of a tenant for life, and the rents 
 were directed to be aiiplied as if the sale had taken place, a legacy payable out 
 of the pnjceeds, was held to be.ar interest from the death of the tenant for life : 
 Re Waters, Water.i v. Boxer, 42 Chy. D. (Jl L. T. N. S. 431. Where for the 
 convenience of the estate the payment of a legacy is postiX)ned by the testator, 
 the legacy l)ears interest nevertheless from a year from the testator's death : 
 Rf Olnr, (Hire v. Westennan, 50 L. T. N. S. 355 ; and see further as to 
 interest on legacies : Re Judkiu, 25 Ch. D. 743 ; .50 L. T. N. S. 200. 
 
 For foiin of reixirt in administration proceedings, see App. Form 42. 
 
 !I7G. Every advertisement for creditors affecting the Advertise- 
 estate of a deceased person, which is issued pursuant to an Sedi*tors, 
 order, is to direct every creditor, by a tiuie to be thereby '""" °'- 
 limited, to send to such other party as the Master directs, 
 
 Master 
 may add 
 parties. 
 
 Interest to 
 be allowed 
 on debts. 
 
 ■Tudgmeut 
 for admin- 
 istration 
 operates as 
 a judgment 
 in favour of 
 all credi- 
 tors. 
 
 Kate of in- 
 terest pay- 
 able. 
 
 Interest on 
 legacies. 
 
 
 
 k^m 
 

 774 PROCEEDINGS WITHOUT WRIT. 
 
 9^7*978 "^ ^'^ ^^'^ solicitor, to be named and described in the adver- 
 ' ■ tisement, the name and address of the creditor, and the full 
 particulars of his claim, and a statement of his account, 
 and the nature of the security (if any) held by him ; and 
 such advertisement is to be in the form set out in Form No. 
 36 in the Appendix, with such variations as the circum- 
 stances of the case require, and at the time of directing such 
 advertisement, a time is to be fixed for adjudicating on the 
 claims. Chy. 0. 475. 
 
 Wliere the Master finds that there has been a proper advertisement for 
 creditors, under R. S. O. c. 110, s. 3(i, he may di.spense with any lurther 
 advertisement without any special directioji so to do : CuthhcH v. U'humlni, 
 W. N. ((ii»)12; Seton, 805; and see limcken, Doughty v. Toini.soii, GO L. t. 
 N. S. (US ; ,S'. a. affirmed 88 L. T. Joiir. G. 
 
 UTT. No creditor need make an affidavit, or attend in 
 support of his claim (except to produce his security, if any,) 
 unless he is served with a notice requiring him to do so as 
 hereinafter provided. Chy. 0. 476. 
 
 No i>erson, except the personal rejjresentative, is entitled (except by leave of 
 the Master) to apjMjar on the claim of any jx-rson not a party to the cause, 
 against the estate of the deceased, in respect of any del)t or liability. But the 
 Master may direct any other jiarty to tlie cause to apjiear, either in addition 
 to, or in place of, the pers(^nal representative, uixin such tenns as to costs or 
 otherwise as he shall think fit : see Rule 334. 
 
 Creditors merely sending in their claims pursuant to advertisement, might 
 not to be allowed any costs of so doing ; but where they are required to go into 
 formal priKjf thereof, the Master may fix a smn for costs, or allow taxed cmU 
 of proving the claim : see Ritlc 1178. 
 
 A notice to a creditor re<piiring him to make an affidavit in su^jKirt of his 
 claim, may be transmitted by post, pre-paid, addressed to him or Ins solicitor: 
 see Rule 988. 
 
 When a creditor's claim is disputed, he may be required to jmxluce 
 corroborative evidence thereof : see R. S. O. c. Gl, s. 10 ; and see cases EtUc 
 9G5, note. 
 
 A judgment obtained without fraud or collusion is conclusive evidence in 
 suits between creditors in relation to the property of the debtor, of the indebted- 
 ness of the latter and of the amount of such indebtedness : Candee v. Lord, 2 
 Com. N. Y. Rep. 2G9; Marhn v. /ioulanj/er, 8 App. Cas. 2i)6; 4!) L. T. N. S. 
 62 ; and see llitwerman v. Phillip.i, I.*) Out. App. ()70 : Re Hai/uf, Tniderit Bank 
 v. Murraji 13 Ont. 727. 
 
 Where the solicitor of a ]jlaintiiT in an administration action, htul purchased, 
 after judgment and landing an inquiry thereunder as to debts, two claims 
 against the estate for less than the sum due, it was held that the officer 
 to whom the action was referred had no jurisdiction to certify that the solicitor 
 was a trustee for the creditors for any surplus he might receive over and alwve 
 what he had paid for the claims : Ke Tillett, Field v. Lf/dnll, 32 Ch. D. ()3!) ; 54 
 L. T. N. S. G04; and it wan also held that such a contention could not be 
 raised at the hearing in further directions, except by consent of the solicitor. 
 
 Creditors^ 07M. Every creditor is to produce before the Master, the 
 
 securities. Security (if any) held by him, at such time as is specified in 
 
 the advertisement for that purpose, being the time appointed 
 
 Affidavit of 
 creditor 
 dispensed 
 witu unless 
 required. 
 
 Parties en- 
 titled to 
 appear on 
 adjudica- 
 tion on 
 credtor's 
 claim. 
 
 Creditors 
 when 
 allowed 
 costs. 
 
 Corrobora- 
 tire evi- 
 dence. 
 
ADMINISTRATION. 
 
 775 
 
 for adjudicating on the claims ; and every creditor, if re- Sj^H- 
 quired by notice in writing, to be given by the executor or ^„^ ^^^^^^ 
 /administrator of tiie deceased, or by such other party asfioc"- ^^ 
 the Master directs, in the form set forth in Form No. 37 in notifle'a. 
 the Appendix, is to produce all other deeds and documents 
 necessary to substantiate his claim before the Master, at 
 such time as is specified in the notice. Chy. 0. 477. 
 
 The notice to produce documents in support of his claim, may he transmitted Notice may 
 to the creditor, hy jwst, addressed to him or his solicitor, if any : see Rule i)88. be posted. 
 
 !)T!>. In case a creditor neglects or refuses to comply othsrwise 
 with the next preceding Rule, he is not to be allowed any allowed 
 ^•osts of proving his claim, unless the Master otherwise ''°^*^" 
 directs. Chy. 0. 478. 
 
 \iH\K The executor or administrator of the deceased, or creditors 
 such other party as the Master directs, is to examine thebe^exam- 
 claims sent in pursuant to the advertisement, and is to"*®*^' 
 ascertain, as far as he is able, to which of such claims the 
 estate of the deceased is justly liable. Chy. 0. 479. 
 
 981, The executor or administrator, or one of the Affidavit to 
 executors or administrators, or such other party either person Ix-^ 
 alone or jointly with his solicitor, or other competent cJSdUors' 
 person, or otherwise, as the Master directs, is, at least '''*'™8- 
 7 clear days before the day appointed for adjudication, to fliel"*"''^ 
 file an affidavit, which may be in the Form No. 50 in the Form of. 
 Appendix, verifying a list, of the claims, the particulars of 
 which have been sent in pursuant to the advertisement, 
 and stating to which of such claims, or parts thereof, 
 respectively, the estate of the deceased is, in the opinion of 
 the deponent, justly liable, and his belief that such claims, 
 ^r parts thereof respectively, are justly due, and proper to 
 be allowed, and the reasons for such belief. Chv. 0. 480. 
 
 0H2. In case the Master thinks fit so to direct, the Time for 
 making of the affidavit referred to in the next preceding affidavit 
 Rule, is to be postponed till after the day appointed for postponed 
 adjudication, and is then to be subject to such directions 
 as the Master may give. Chy. 0. 481. 
 
 9H3. At the time appointed for adjudicating upon the Adjuaica- 
 <;laims, or at any adjournment thereof, the Master may claims by 
 allow any of the claims, or any part thereof respectively, ^■■'**'- 
 
 it 
 
 '^^ 
 
 
 
 
 m 
 
 
 
 
776 
 
 PROCEEDINGS WITHOUT WRIT, 
 
 Rules 
 984-986. 
 
 Further 
 evidence 
 may he re- 
 quired. 
 
 Master can- 
 not employ 
 oxpertB. 
 
 Mortga- 
 gee's claim. 
 
 without proof by the creditors, and may direct such 
 investigation of all or any of the claims not allowed, and 
 require such further particulars, information, or evidence 
 relating thereto, as he thinks fit, and may, if he so thinks 
 fit, require any creditor to attend and prove his claim, or 
 any part thereof ; and the adjudication on such claims as 
 are not then allowed is to be adjourned to a time to be then 
 fixed. Chy. 0. 482. 
 
 The Master has no ]X)wer under this Rule to emplf»y experts to assist him in 
 coming to a conclusion on the claims of persons claiming to be crechtors ; Ri 
 Jiolicrtson, Bohcrtson v. Rohcrtson, 24 Gr. 55.5. 
 
 A mortgagee is entitled to prove against the general estate, and hold his 
 security for any amount the general estate is insufficient to pay : He Stnrail, 
 Steivart v. Strirart, 10 (Ir. K!!). Where on a deficiency of assets, some crwlitors 
 are paid nuire than their proportion, they may, on the petition of a creditor 
 who has not been jiaid his projiortion, be ordered to refund tiie excess; 
 Chamhcrlen v. Clarke, 1 Out. 135 ; !) Out. App. 273. 
 
 Where the Master requires a creditor to attend and prove his claim, the 
 notice so to do may be transmitted to him or his solicitor by post, unless the 
 Master otherwise directs : see Rule 988. 
 
 Where 
 prodt of 
 oUiiiii is 
 requii-oJ. 
 
 bo stfut*" 9H4* Notice is to be given by the executor or adminis- 
 cre'ditors. trator, or such other party as the Master directs : 
 
 ciaiuMii- ^^^ ^^ every creditor whose claim, or any part thereof, 
 lowed with- has bccu allowed without proof by the creditor, of the 
 pioo allowance, and the notice may be in the form No. 38 in the 
 Appendix. 
 
 (2) And to every such creditor as the Master directs to 
 attend and prove his claim, or such part thereof as is not 
 allowed, by a time to be named in the notice, which may 
 be in the form No. 39 in the Appendix, not being less than 
 7 clear days after the notice, and to attend at a time to he 
 therein named, being the time to which the adjudication 
 thereon has been adjourned ; and in case any creditor does 
 not comply with the notice, his claim, or such part thereof 
 as aforesaid, is to be disallowed, unless the Master thinks 
 fit to give further time. Chy. 0. 483. 
 
 The notice may be transmitted by post, prepaid, to the creditor or his soli- 
 citor, unless the Master otherwise directs : see Etde 988. 
 
 mayiio°nd 9^^» A Creditor who has not before sent in particulars 
 in parti- of his claim pursuant to the advertisement, may do so 7 
 ciahu* ° clear days previous to any day to which the adjudication is 
 adjourned. Chy. 0. 484. 
 
 After ex- 
 piry of 
 time lim- 
 ited by 
 
 9HB, After the time fixed for the advertisement, no 
 claim is to be received (except as before provided in case of 
 
w 
 
 PARTITION. 
 
 77T 
 
 creditor or his soli- 
 
 an adjournment,) unless the Master thinks fit to give ^g'i^*"^ 
 special leave upon application, and then upon such terras advertiBe- 
 and conditions as to costs and otherwise as the Master jji«ut for 
 directs. Chj. 0. 485. claims. 
 
 An ai)|)licat,i()n of a creditor to jn'ove aft«>r the time has elapsed is unually 
 srautcd ; but on the terms of not dinturl)ing unv division of assets which has 
 actuallv been made : lie Mctctlfi, llick.f v. A/ii;/, 13 Ch. 1). 23(i ; 42 L. T. N. S. 
 3.>13;4!)L. .J. Ch. 192. 
 
 9S7. Where an order is made for payment of money creditors 
 out of Court to creditors, the party whose duty it is to fled when 
 prosecute the order is to send each creditor, or his solicitor "'^'^s are. 
 (if any,) a notice that the cheques may be obtained from the ^'^y^yi« 
 Accountant ; and the notice may be in form No. 40 in the court. 
 Appendix, and the party is, when required, to produce any 
 papers necessary to enable the creditors to receive their 
 cheques. Chy. 0. 486, 
 
 Creditors who have jjroved claims, but who are not parties to the action, are 
 nut entitled to notice of a hearing,' on further directions, nor of an application 
 f(ir distribution : Lavin v. O'jVcilf, 13 (4r. 17il. 
 
 Creditors who have received nn)re than their share, may be ordered to refund, 
 cm the application of a creditor who has not received his proper proportion: 
 Chiimhirlcit V. Chirkc, 1 Ont. 135 ; 1) App. Ont. 273; but the right may be barred 
 by the Statute <if Limitations, if not prosecuted within six years from the date 
 (if tiie (iverpavment : Blake v. <'<ilc, 31 Ch. I). 1!)G ; or may be lost by acqui- 
 escence : .S. V. jV) L. T. N. S. 234. 
 
 9HH. Every notice by these Kules, required to be given Form of 
 is, unless the Master otherwise directs, to be deemed suffi- Notice, 
 ciently given and served if transmitted by post, prepaid, ^eiu to'"* 
 to the creditor to be served, according to the address given <"^^^»*°*'* 
 by the creditor in the claim sent in by him pursuant to the 
 advertisement, or, in case the creditor has employed a 
 solicitor, to such solicitor, according to the address given 
 by him. Chy. 0. 487. 
 
 The exi)resHion "these Rules" in this Rule is not intended to refer to the 
 whole body of Itnh-s, but merely to Rulia flt)5-987. 
 
 3. Partition. 
 
 9S9, Any adult person entitled to a judgment or order Aduitparty 
 for the partition of an estate, may, on serving one or more SYocai ^ 
 of the persons entitled to a share of the estate of which pirtitioir 
 partition is sought, with a 14 clear days' notice of motion, 01™°"°"- 
 apply to the presiding Judge in Chambers, or to the Master 
 in the County (other than the County of York) wherein the 
 land sought to be affected by the proceeding lies, for an 
 order for the partition or sale of the premises in question ; 
 
778 
 
 Bule 989. 
 
 Proceed- 
 ings on 
 judgment 
 for par- 
 tition. 
 
 Infants in- 
 tereated 
 inuHt be 
 repre- 
 sented by 
 (,'uardiah 
 ■ad litem 
 
 Money not 
 to be paid 
 out with- 
 out Judge's 
 •order. 
 
 M'tiere in- 
 fant plain- 
 tiff seel<a 
 partition, 
 -writ must 
 toe issued. 
 
 Summary 
 Application 
 cannot be 
 made, when 
 any party 
 claims ad- 
 versely. 
 
 Accounting 
 parties tu 
 bo made 
 original de- 
 fendants. 
 
 • PROCEEDINGS WITHOUT WRIT. 
 
 whereupon the Judge or Master may make such order for 
 partition or sale, or such other order as may he proper, and 
 the Master shall thereupon proceed in the least expensive 
 and most expeditious manner, according to the practice 
 now in force, for the partition or sale of the premises, the 
 ascertainment of the rights of the various persons in- 
 terested, the adding parties, the taxation and payment of 
 costs, and otherwise. Provided always, that where an 
 infant is interested in the estate, no order shall be 
 made for partition or sale until such infant is represented 
 by its guardian ad litem, ; and provided also that all naoueys 
 realized from the estate shall at once be paid into Coort, 
 and that no moneys shall be distributed or paid out for 
 costs or otherwise, without an order of a Judge in 
 Chambers or the Court ; and on the application for such 
 order, the Judge may review, amend, or refer back to the 
 Master his report or order, or make such other order as he 
 deems proper, Chy. 0. 640. 
 
 Thia Rule is confined to the case of proceedingn iiiHtituted by tidult persons: 
 where an infant institutes proceedings for j)artition, a writ must he issued: 
 liniivn V. Briiwii, 2 C. L. T. 311. This Kii/r extends tiie [)rincii)l(' (,f Rtik 320 
 to partition suits ; formerly it was necessary to make all tenants in cominimof 
 the land in question, i)arties to the bill ; under this Rii/i', it s\iftices to notify oiu' 
 or more of such jiersons. The application cannot 1)6 made for the i)ai-titi(m of 
 an estate of a deceased person, until the lapse of one year from liis death : 
 R. S. O. 1887, c. 104, 8. 8 ; (riant v, (irauf, !) P. R. 211. Prior tu the ktt 
 revision of the Statutes the ]ieriod was si.x months : R. S. O. (1877) c. 101, s. S, 
 Where the interests are unequal, the person having the largest interest should, 
 as a general rule, be notified of the ap])lication. 
 
 This Rule does not apply where it is necessary to add a defendant wiiosc 
 claim to share in the estate is contested, e.;/., where a stranger is in iK)Sses8ion 
 claiming adversely to the ]>laintiiT and his co-tenants, an .iction must be 
 brought by writ : see Ynuii'/ v. U'li'/h/, 8 P. R. 11)8 : Re MeMiUan, I'aHermi 
 V. McMillan, 8 P. R. 540 ; ' 17 C. L. J. 80 ; Ilopkinx v. Unpkiiif!, !» P. R. 71 ; 
 and where after judgment for partition has been issued a question is raised ahUi 
 the validity of an outstanding lease, it would seem that the ^Master has jw 
 jurisdiction to try it, but an issue may l)e directed by a. fudge under RuleUX): 
 Re Rogtrs, Rogers v. Rot/ers, 11 P. R. 90. 
 
 A Local Master has no jmwer to make an order for partition of lands out 
 of his jurisdiction, i.e., his county, and if he do so his order is null and void 
 even as to lands within his County : Nichol v. Allenhi/, 17 Ont. 275; but see 
 Rule >m. 
 
 Where the lands are situate in the County of York, or in more Counties 
 than one, the applicatif)n f(>r partition should be miule to a .ludge in Clwinibers. 
 The jurisdiction, here conferred on a .Judge in Chambers, is apwareiitly, from 
 the wording of the Rule, not intended to be exercised by trie Master in 
 Chambers : and see Rule 30, 8. 11. 
 
 Where two or more judgments are granted for .oartition of difTcrent jiartsnf 
 the same person's estate, the proceedings may be consolidated under Rule 'M. 
 
 Wherever an acciunt is required from any i)erson, such person should }v 
 made a defendant in the first instance, as it would seem i)arties served with 
 the judgment in the Master's office cannot be made to account tliereunder : 
 Wulktr V. Seligmann, L. R. 12 Eq. 1.52 : Ifopiier v. Harrison, 28 (Jr. 22. 
 
'- "m 
 
 PARTITION. 
 
 779 
 
 The plaintiff was formerly bouurl to allege, and if diHputed, to prove, his Rule 989. 
 
 title, and under this Rule it will still be necessary that the affidavits in HU|)i)ort of Kvideuce 
 the application should establish the applicant's title, and it would also appear on uiotiou. 
 U) he necessary to show thereby, the estates and interests of all other p«Tsons 
 interested as joint owners. The existence of a discretionary power of sale in 
 trustees, does not exclude the jurisdiction of the Court to order [lartition : 
 lli<!/d V. Allfii, 18 L. T. N. S. ()28 ; but a partition was refused in a case where 
 the trustees were taking active proceedings to execute the {wwer: Re Dennis, 
 14 Out. 2(i7. 
 
 The Court will not decree partition of lands, for which no natent has issued, 
 neither will it decree a sale of such lands at the instance of tne repr"sentatives 
 (if a deceased locatee : Ahell v. Weir, 24 (ir. 4(i4 ; ihUhhr.rt v. ('iitiihcrt, 11 Gr. 
 8tf, at p. ill ; -h'nk'in.i v. Martin, 20 (ir. (Jl.S. 
 
 A tenant for life of an undivided share, is entitled to partition : Onskell v. 
 Ga-Ml, (J Sim. 043 ; and see Lnlar v. Lalor, !) P. K. 4.55. Adi^cree for partition 
 was made at the suit of a dowress : Harriaon v. Rottrill, before Blake, V.-C, 
 21st January, 1880 ; lie.rereux v. Katrns, l\ P. R. 4.52, over-ruling Rudi/ v. 
 Roily, 1 C. L. T. .54(i ; but her right tojiartition is subject to judicial discretion 
 «nd it will only be granted when her dower cannot 'lonveniently be otherwise 
 aet apart ; Frioa v, /'"nun, 12 P. R. 185. The right of a dowress in the whole 
 estate to luivi! jiartition or sale, appears to l)e doubtful, but where the dower is 
 claimed out of an tuidi vided share, the dowress would seem entitled tt) partition, 
 or sale, as tlie only way iiy which her claim can be properly ascertained and 
 satisfied. A mortgagee of an undivided share, has been held not to be entitled 
 to partition : Tniin v. Smith, before Spragge, C, 14th April, 1875 ; and see 
 Laiilanh: v. Seamen, 8 Ont. Ai)p. 500; but in Fall v. Klhins, !) W. R. 801, it 
 seems to have been assumed that a mortgagee was entitled to this relief ; and 
 see Aijar v. Fair/ax, 2 W. k T. L. C. 881 : as to whether a tenant in common 
 who has mortgaged his land can have a partition without first paying off his 
 mortgage ; see <>'ihh.i v. Haydnn, 47 L. T. N. S. 184. In this Province it would 
 seem that he can, and that his mortgagee should be made a party either in the 
 first instance, or in the Master's office, but any additional costs so occasifnied 
 must be borne by the mortgagor: Mehnw/n/l v. Mchoiignll, 14 Gr. 207; a 
 mortgagee who comes in and consents to a sale, is not entitled to either six 
 months' notice, or six months' interest : Re Hmtstnn, 2 Ont. 84 ; and see as to 
 mortgages made since 1st July, 1888, 51 Vict. c. 1.5, s. 1, (O). 
 
 A partition or sale cannot V)e ordered as against a tenant for life of the whole 
 estate on the application of those entitled in remainder: Murcar v. linWm, 5 
 Ont, l(i4, and a partition was refused in a case in which trustees of a will were 
 empowered to sell and divide the proceeds and they were alwut to exercise the 
 power: Re Dennis, 14 Ont. 207. 
 
 Where the plaintiff claimed as vendee of the equity of redemption of one of 
 four tenants in eonimon under a sale by the sheriff, » decree for i)artition was 
 set aside on appeal, on the ground that the interest was not salable : WdoiI v. 
 ilwl, 2H (ir. 14(1. 
 
 In detennining whether a sale, it partition, should lie directed, the Master 
 will be guided liy what is best for all jiarties interested : lilo.sdel! v. lioldvnn, 3 
 Ont. Ai)p. (). When the prop.erty is not suscejjtible of partition, a sale should 
 be directed : Stei-en v. Hunter, 14 (ir. 541. 
 
 The discretion ex^'rcised by a Judge in granting a partition or sale will not 
 be interfeml with by the Court of Appeal : Re Dyer, Ityer v. I'niinter, .53 
 L. 'T. N. S. 744; iwt where the discretion is exercised by an officer of the Court 
 having judicial functions his discr(«tion mav be reviewed : see Jin/ant v. 
 Reculimj, 17 C^. 15. 1). 128 ; 54 L. T. N. S. 300; Vlendi v. Diwley, 5() L. T. 
 
 By this l{iile the Master is empowtTed to award such a judgment as the Form of 
 Court of Chancery wati accustomed to grant in partition suits, — except tlie order judgment. 
 for payment of the money out of Court : see note to Rnle 1174. He would, 
 therefore, ajipear to be entitled to award a judgment under which an account 
 of rents and profits could be taken, and under which a sum in gross could be 
 allotted in lieu of dower, curtesy, or any otlierlife estate, and under which all 
 
 Partition 
 not granted 
 of un- 
 patented 
 land. 
 
 Tenant for 
 life, or 
 dowress, 
 how far en- 
 titled to 
 partition. 
 
 Mortgagee 
 notentitled 
 to parti- 
 tion. 
 
 Tenant in 
 
 comniou 
 
 whose 
 
 share is 
 
 mortgaged, 
 
 may have 
 
 partition. 
 
 Kxtra costs 
 must be 
 borne by 
 his share. 
 
780 
 
 Rule 990. 
 
 Service of 
 judKiuont. 
 
 Account of 
 
 rei.tH and 
 profltB, otc. 
 
 Improve- 
 ments bow 
 to allot. 
 
 When after 
 judgment, 
 lands dis- 
 covered in 
 another 
 county. 
 
 Several 
 suits, cou- 
 BOlidation 
 of. 
 
 PROCEEDINGS WITHOUT WRIT. 
 
 other usual and ncceHHiiry iiccountw, ami iiiquiricH, could \w taken, and made, 
 as the circutnstaneen of the cane may recjuire. For form of judjfim'iit; ste 
 A))]). Form 18(1. 
 
 All parties interested in tlie land who ar<^ not ^erved with the luiticp (if 
 motion for the judffment, will have to be served with an ottiee ei'iiy uf the 
 .judjfment: Huff 4tl: and tliey will Ite entitled to move to vary, or set it aside, a« 
 provided hy Kn/i \H. 
 
 A tenant in connnon who has been himself in actuiil (K'lMipation of the wlmle 
 estate cannot l)e eharffed with an occupation rent: lliiiilcrxnn v. Kdmrn,]' 
 Q. h. 701 ; /'ice v. (ifnnir, 20 (Ir. 221 ; !{'■ Klrhiidtrirk-, Kirk'/iti/rir/,- v. Slnrmmt, 
 10 I*. R. 4, except in favour of an infant co-tenant : ('mtnicr v. <'(iiiirier,'lft 
 Or. .307. He is, however, lia'j'" to acco\int to his co-tenants for nuts .ind 
 profits received from third parties : (iiidih-uaw v. Fitn/ii/inr, P.I (ir. (iH; 
 CiirtiK V. CiiU'inun, 22 (ir. .501 ; and if he make any claim for iuiprownifnts 
 made, or for prior incumbrances paid off, by him, he nnist submit toiiceount 
 for an occu|mtion rent, otherwise he cannot be allowed them ; Rici' v. Hturijt, 
 supra; Rivet v. /M-S'iiirdi, 12 C. L. J. 203. Hut as ajfainst an expcutioii 
 creditor of the tenant who has been in possesHJon, the other tenants in cdmmnn 
 cannot charj^e his share with the excess of rents received by him, in priority t(i 
 the executiem : Mc/'/ierno)i v. McPlientim, 10 P. R. 140. Wiiere a tenant in 
 common is lessee of his eo-tenanfs shares and continues in sole possession after 
 the expiration of the lease, he becomes lial)le to his lessor for use and occuiia- 
 ticm : l.ei'ih v. Dickifin, 12 (l B. D. 1!)4 ; 1.') O. B. D. (K) ; .50 L. T. N. H. 124: 
 .5'2 L. T. N. S. 700. 
 
 Only such improvements as are made by a tenant in common to prevent tiie 
 estate goiny to ruin are recoverable : Ih. 
 
 In makinj,' p.irtition, thos!" portions on which imi)rovements have been made 
 by any of the tenants in connnon siuiuld, as far as possildc?, be allotted to the 
 [)arties by whom they were made : see Wimd v. ir'/nf/, 1(! (Jr. 471. 
 
 When a sale is directed in a partition action the Master should iiKHiirejv.it" 
 ijicunibrances existing on tlie shares of tiu' parties interested up to tiie 
 time of sale and not mendy up to the commencement of the |)r(icvedings: 
 /^//w)« V. R>hx„u 10 P. R. .324 ; 20 C. L. J. 102. Such persons as ha/e 
 incumbrances should be made ])arties under Rule 40, and it not made parties 
 they will not be bound l)y the proceedings : R. S. (). c. 104, s. 21. 
 
 fM>0. Wlien alter au onler has been made under the 
 preceding Rule lands are discovered in another county, an 
 application may be made to a Judge of the High Court in 
 Chambers for the partition or sale of such lands under the 
 order formerly made, and where two or more orders have 
 been made by Masters in different counties, an application 
 may be made in Chambers for an order as to the conduct 
 of the future proceedings. Chy. 0. 6-41. 
 
 This Rule applies to the case of lands .subneqitent/i/ discovered in another 
 county ; it does not ai)ply when it apjiears on the original apidication that the 
 lands sought to be i)artitioned are in different counties : in s\ich a cas« a 
 Local Master has no jurisdicticm at all, even as to the lands in his own county; 
 Nicholl v. Allenby, 17 Ont. 27.5. 
 
 Where lands are discovered in another county after a judgment has been 
 pronounced by a Ltxsal Master, the Judge in Chimit)ers may award judgment 
 as to the lands so discovered : dark v. Clark. 8 P. R. 1,50. 
 
 The object of this Rttle is to prevent more than one suit being ])rosecuted in 
 respect of the same estate. W here more than one suit is brought, under this 
 Rule, application may be made to consolidate them. The application must be 
 made before a Judge in Toronto. But where two or more applications are 
 made by different jiersona to the same Local Master, the latter has jurisdiction 
 
PROPERTY OF INFANTS. 
 
 781 
 
 rminion to iirevent tlip 
 
 to prDiioiinci' jud^'inunt in ttiu' of tlu'iii, luid Htay the utlierH : LumliUr v. Rules 
 Lnmlii(r, !» I'. K. 4-2 ; lit O. L. .1. l.")H. WluTii a nuit is Htiiyud, tlic costM are 991-994. 
 priiiid fiii'ir piiyalilc out of the Hstate fmri /HtJimi with tiie costs of tlie «uit which CoHtH. 
 i« carriwl 1)11 : /{'■ t'lurk, Cumher/aiid v. Clitvk, L, K. 4 Cliy. 412. 
 
 Kntiy of 
 ordurs. 
 At conclii- 
 Hloii of suit 
 jmpors to 
 lie forwiird- 
 oil to Clerk 
 of U. & \V. 
 
 991. The Local Masters shall enter in books kept for 
 tbat purpoae, all judgments, or orders, made by them, 
 in administration and partition matters, and they shall on 
 the conclusion of the proceedings, annex together all the 
 papers tiled with them in such proceedings, and transmit 
 the same to the Clerk of Records and Writs, who shall duly 
 enter the same. Chy. 0. 650. 
 
 This Rule seems somewhat iiicon»i.stent with the provisions of Rule f)40, 
 which i)r()vi(icH tliat all ordors for administration or partition made in Cham- , 
 
 bers shiiU lu' drawn np as jud(,'nii'nts and entered in like maimer as other 
 judgmt'iits are recpiired to l)e entered. My Rule 7<)4 judfifments are recpiired to 
 be signed l)y a Kejjistrar, Local Re^fistrar, I)e])uty liegistrar, or Deputy 
 Clerk, with whom it is ijresumed they an! also to Ije entered as required by 
 Ruk 772 ; l)Ut Rule !)!>! recitiires the Local Masters to enter the judf,'ments 
 
 Sronounced by tiu'm for administration, or partition, and nujst of the Local 
 lasters till neither of the ottices mentioned in Rulv 772. 
 
 The rc'iuirements to transmit documents to tiie Clerk of Records and Writs 
 would secui to l>e applical)le to proceedings in all the Divisions. Though why 
 the doomiieiits in actions pending in tiie (Queen's liencli and Common Pleas 
 Divisions should be transmitted tu the Clerk of Records and Writs is notcjuite 
 apparent. 
 
 4. Propkuty of Infants. 
 
 992. All applications for the sale, mortgage, lease orAppHca- 
 otber disposition of an infant's estate shall be made to the Heiretc., 
 Master in Chambers, and no reference in any such matter '"["^"'J ''f- 
 
 • ill- 1 T inr 11 !• '" " whore 
 
 13 to be directed to any Local Master, except by leave of a made. 
 Judge. J. A. llule 585. 
 
 993. The Official Guardian shall be duly notified of all official 
 
 ,.,. , ,, , .. T-., -r.iAi ^n fiuarauinto 
 
 applications under the last preceding Rule. J. A. Rule 586. bo notified. 
 
 See mprn j). 115. 
 
 994. A petition for the sale or other disposition of the 
 real estate of an infant, is to be intituled in the matter of 
 the infant. Chy. 0. 527. 
 
 Applications for the sale, leasing, or other disposition of the real estate of 
 infants, are authorized by R. S. O. c. 137, s. 3, where it is made to appear 
 to the C(jurt that it is necessary, or jiroper, for the maintenance or 
 education of the infant ; or that, by reason of any part of the ])roperty being 
 ex|xj8ed to waste and dilajjidation, or to depreciation from any other cause, the 
 interest of the infant requires, or will be substantially promoted by such dispo- 
 sition. Where a sale is necessary for the payment of tne debts of the ancestor 
 It may be ordered : Re McDonald, I Chy. 'Ch. !»7 ; Re Barker, 6 P. R. 225. 
 nut It should be shewn that unless the sale, or otiier disposition, is made, the 
 ^tate will sustain loss, or that the creditors are about to enforce payment of 
 their demands by suit: Re lioddy, 4 Gr. 144. Where none of the circumstancea 
 
 Ptitition, 
 liow eii- 
 titlod. 
 
 Sale of in- 
 fant's es- 
 tate, on 
 wliat re- 
 alized. 
 
 Interest of 
 infant to 
 be con- 
 Bidered. 
 
 ?'» H 
 
782 
 
 PR0CKEDINO8 WITHOUT WRIT. 
 
 Rulo 991 
 
 No ilispoHi- 
 tion can bo 
 aiitliorizt'll 
 contrary to 
 imy will or 
 deed. 
 
 Applica- 
 tion for 
 Bale, olc, 
 how to bo 
 made. 
 
 Kxocution 
 of con- 
 veyance. 
 
 Proceeds of 
 sale, retain 
 quality of 
 estate Hold. 
 
 Order for 
 bar of 
 dower. 
 
 Settled es- 
 tates, juris- 
 diction of 
 Court in 
 regard to. 
 
 Hale of 
 settled 
 estate when 
 ordered. 
 
 mentioned in tlio Act are proved to oxist, tlie Court liaH no antlmrity to make 
 any order: Vtdvirt v. llmlfriji, fl Heav. 1!I7 ; lt<' J'lic/du, ti I'. H. 2."i!l;ft 
 liMiixmi, I'ickdiil V. Whiittrr, 31 Cli. I). 24" ; M L. 'I'. N. S. H(l"); and «* /;, 
 JarkiK, W 0. L. .r. (i!), wliere the Court refused to Nanction a renewal of a lea*- 
 made by the infant's ancestor ; but see liimn v, Jilruii, 10 Out. tilW ; and i*c 
 sec. t)i\ H-H. 10, initi' \). t>2. 
 
 When it appeared tluit tile ujiplicution was made more for tlie In iicfitdf thi 
 infants' fatlier than of tlie infant.'^ tlu-niselves, tlie applitMition was refused: Hi 
 AtcJhiiKild, 1 (!r. ild; and a sale will not l)e ordered to re|)iiy a rel.itivc, suchaN 
 a father, ni'itii'^r, or hrotlier, for the past maintenance of the infant : Kdkr\. 
 Taehf, 1 Chy. V\\. JWrt ; and see Kiliranln v. /luriiiii, 1!( (ir. 101. 
 
 No sale, lease, or other dis|M>sition can he ordered under H. S. 0. c. 137, 
 apainst tin? |)rovisions of any will or conveyance l)y which the entate In* 
 been devised or jfranted to the infant, or for his use : U. H. O. c. 137, n. 3, 
 K-.s. 2; Itc Smith, (J T. R. 2H2 ; JCi WHkoh," V. K. 244 ; 7^ (Mmit, \ 
 Chy. Ch. 2(i 1K2; but see AV JiMo/irick, 21 (Jr. .Wi); and sec. 32, a)Urp. 2li. 
 
 A guardian of an infant eamiot, without the sanction of the Coiu't, make h 
 valid lease of his ward's land : CnUiaa v. Martin, 41 V, ( '. (^. 15. (102; SuiUr 
 v. MrMillmi, 23 V,r. .f)3« ; ToiniK:.;/ v. Nci/, 1(» (ir. 72 ; the reiK)rt of iKe last 
 oase ap|)ears to be erroneous in describing the guardian who made the ka«ea» 
 a guardian m/ li/im, instead of a guardian of the estate of tlie infant. 
 
 The Statute says tln! application is to Ik^ nuwle in the name of the infant bv 
 his next friend or his truardian, but cannot be made witlmut tlic inf.int'.< 
 consent, if he is of the age of fo\irteen, or ui)w:irds : K. S. O. c. 137, s. 4; and 
 see Ituir '.m ; but see Jiii/c !>!>5 ; 51 Vict. c. 2, s. 4. 
 
 Api)lications for the sale, or other disposition, of infants' estates, cannot now 
 1)0 made to the County Court Judges, or Local Mastex's : Itnlr '.)!t2. 
 
 The Court may onh^r the execution of the c(mveyance by the infant, or some 
 one in liis belialf, and a conveyance so executed is binding on the infant, as if 
 made after he had attained his majority : H. S. O. c. 137, ss. 5, ('» ; Jitu v. (!(ddci, 
 3 Chy. Ch. 404. 
 
 The proceeds of lands sf)ld, or dis|K)sed of under the dirwtion of the Court, 
 retain the (juality of the estate sold, or disposed of, so far as the rightHof tJii- 
 infant's heirs, and next of kin, are concerned : R. S. O. c. 137, s. 8 ; Fitzfitri'-^ 
 v. Fitzpatrick, (> P. R. 134 ; Tkomjmni v. McCaffrt;/, (> P. R. li)3 : Camr' 
 Caiiiplidl, lit (Jr. 2'A. But where such moneys descend as realty f tin rdn 
 not effect an actual reo<mversion, they will pass to his r. > ■ - a.- 
 
 personality : Mordaitiit v. Ikiiird/, lil Ch. D. 3tJ2; 4.5 L. T. And&- 
 
 to iulult jyarties jointly interested with th(! iii*"ants, t r for sali 
 
 operates as a cimversion, and the share of such a [H'rson dyi. lore sale, bw 
 after the order, will descend as perscjnalty : Hijctt v. McKin, ~ < 'li. D. 73.' 
 
 Where the mother of the infant is a lunatic, an application ma.\ !)« nv f"' 
 an order barring her dower : R. S. (). c. 133, s. 13. The application n. t • 
 made to a Judge in Chambers : Re ('oHhart, \) P. R. 35t). 
 
 Settled Estates.— The Court has also the same juri.sdiction which the Court 
 of Chancery in Kngland had on the 18th March, 18().5, in reganl to leases and 
 sales of settled estates, and in regard to enabling infants, with the apiirobatioii 
 c»f the Court, to make binding settlements of their real and j)ersonal estate on 
 marriage : see s. 32, and notes ante pp. 2(i-28. The jurisdiction of the English 
 Court of (Chancery, at the above date, was regulated by Imp. ActsW&SP 
 Vict., c. 120 ; 21 & 22 Vict., c. 77 ; 2.5 & 20 Vict., c. 108 ; 28 Viot, c. 45. 
 
 The Court has no jKiwer under section 32, to order the sale of « !«>'' 
 of a settled estate, in order to make imjirovements on the remainder : Be Moon, 
 « P. R. 281 ; Re Chambtrn, 27 Beav. (i53 ; nor can it sanction an exchange : ^( 
 JiiHhoprick, 21 (Jr. 58!) ; but in that case, on its being shown that, unless the 
 exchange were mode the projierty was liable to depreciation in value, tne^sale 
 was directed under R. S. 0. (1877), c. 40, s. 7t> ; but the provisions of sect. 7i w 
 that Act prohibiting any sale, or disposition against the jjrovisions of any m 
 or conveyance, do not seem to have been considered in that case. 
 
PROl'KUTY OF INFANTS. 
 
 788 
 
 lo autlioritv to make 
 ,1, i; I'. U. 2r.!l;ii- 
 . S. Htir) ; luul nee /;■ 
 I 11 rciU'Wiil of IV lia*- 
 ,0 Out. (1113 ; and mi 
 
 for till' lit lli'fitnt till 
 tiini WHS rcfiisi'd; ft 
 )iiy II rcliilivi', sueha> 
 the iiifiiiit : Kctlir\. 
 ir. 101. 
 
 :i(l..r H. S. O. c, is;, 
 
 ivliicli till' I'statf lia« 
 
 U. S. < ). c. 137, ». 3, 
 
 244 ; Hi CiillMi' 1 
 
 1 sfc. \V2, antf p. 2li. 
 
 of thi' Court, maki' ii 
 ( ;. t^. H. CM ; Su'Uur 
 till) rc|Kirt of t'l' last 
 wiiouiiulf the kiWea« 
 jf thf infiiut. 
 niUTii- of the infant k 
 ' witliout the infMts 
 a. O. o. 137, s. 4 ; M'l 
 
 its' I'stivti's, cannot now 
 i: ii»/.' '.('.I'J. 
 
 <, by tin- infant, or sonve 
 liniron tlic infant, wit 
 , ss. 5,(i; 7f<i< V. f.'aWo, 
 
 direction of the Court, 
 far iiH the rights of tht' 
 c 137, «• » : Fit:pi<"'' 
 V. R. 1!)3; Camr'' ■ 
 asrwvltv f tin • -td" 
 
 hiH 
 L T. 
 
 ts, t 
 11 (lyii 
 (cKin, . 
 
 Andw 
 ,, r for lalf 
 .fore 8ale,lmt 
 Ch. D. TS.'^ 
 
 ication may 1* ni- ''j^ 
 
 Mie application ni"*' f*" 
 
 KJ. 
 
 «liction which the Court 
 
 ,, in rcpanlto leases »nd 
 
 ,ts, with the anprobation 
 
 1 and personal cstM on 
 
 r.XtJonoftheKnglisl. 
 :d by Imp. Acts 19 &.t' 
 08; "28 Vict., 0. 4a. 
 
 rder tho sale of » !«" 
 
 motion an exchange. » 
 g shown that unle^rte 
 .ciation in value, the saj 
 le provisions of sect. hW 
 
 !he provisions of any *•"- 
 
 n that case. 
 
 The provisionH of the Kii^flish Settled EstateH Acts whieii are intr(Kl\uie<l Rulei 
 (ly section 32, itntc, only remove the bur of infancy, but do n(»t eiiabhi an 996, 998. 
 infant to do more than an .ulult could do, >'.,>/., when an infant wiih also u 
 iiiurrii il wiiiiiiui and made a post nuptial settlement with the Naiiotitin of the 
 (Jourt, under tliont^ AcIh, but the settlement was one which woidd not have 
 Ixiiiiid her if she had been an adult, it was held to be invalid notwithstanding it 
 littd received the sanction of the Court: HnrkiaiiMir v. Huckmimtir, ',\U C\\. L). 
 •jl ; "il! Ii. 'r. N. S. 7!*i"). Hut the Act eiiidiles an infant to make a valid ix)st 
 nuptial settlement so far as an adult j;ould make one : Vic WnH, oO L. T. N. S. 
 435. 
 
 An infiint ward marrying witliout the consent of the Co\irt cannot, against 
 Ills will lie required to execute a settlement of his estate, and a settlement made 
 liy an infant iindta- such circumstancs, unwillingly, but with the sanction of 
 tlu' Ciiiirt, WMM set aside on the application of the settlor on attaining his 
 majority : Iti Lii'ih, Ltiuli v. Lei:/h, (iO L. T. N. H. 404. 
 
 Applications as to leases, and sales, of settled estates, and to enable minors 
 to make liinding settlements of their real and personal estates on marriage; 
 and ill I'CK'ai'il to (juestions submitted in the form of special cases by jsMwrns 
 iindii- liiMiiliility of infancy or lunacy, under secticm s. 32, aiilc, are excluded 
 ';,)m till' jurisdiction of the Master in Chambers and the County Court 
 .iiul^'es, and Local Masters : .'tulisiH), 41, lHH. 
 
 Applica- 
 tions re- 
 specting 
 settled od- 
 tatos lio\s' 
 nuKio. 
 
 variance Ix'tween this /litlr, and the Statute R. S. (). c 1.S7, s. 4, Variance 
 ... - - - ■ between 
 
 !M>ii. The petition is to be presented in the name of the '" whoso 
 infant, by his guardian, or by a person applying by the same presented, 
 petition to be appointed guardian as heieinat'ter provided. 
 
 Chy. U. 528. 
 
 Tlii're is i 
 wliicli provides that the ajiplication shall be in the name of the infant by his u^w^and 
 next friend, or by his guardian. The jwociidure i)rescribed by the JliUc is to it g (j c 
 lirevail : rd Vict." c. 2, s. 4. {()). 137, «. 4, 
 
 9!Mi. The petition is to state the nature and amount of what it ih 
 the personal property to which the infant in entitled — the '°**'**^- 
 
 eces-ity of resorting to the real estate — its nature, value, 
 and liie annual profits thereof. It must also state circum- 
 »Tances sufficient to justify the sale or other disposition of 
 
 e estate, and the application of the proceeds in the manner 
 proposed. The prayer must state specifically the relief that 
 18 desired ; it must designate the lands to be disposed of, and 
 must propose a scheme for that purpose, and for the appro- 
 priation of t' proceeds. If an allowance for maintenance 
 is desired, it must be so prayed, and a case must be stated 
 to justify such an order and to regulate the amount. Chy. 0. 
 529. 
 
 A similar inocidure prevails in the State of New York : see Tyler on Circum- 
 lufancy, p. 3'h liMi. Apart from the ixjwer given by the Statute, the Court stances 
 naa no authorii ■ o direct the sale of an infant's estate on the mere ground that which jus- 
 it would be iHiiieiicial : C(drerl v. O'ud/rey, 6 Beav. 1!)7. *'/? a /ale 
 
 mi J ,f> • (jj infants 
 
 ^"^''TOi'niHtances justifying a sale of an infant's estate, under the Statute, estate. 
 are: (((jThe fact that the sale is necessary, in order to maintain, or educate, 
 '"t"' ' '"'• ('') *''iat by reason of the pro^>erty, or any part of it, being 
 (exposed to waste and dilapidation, or to depreciation from any other cause, the 
 "lu j' "^ ''''^ infant requires, or will be substantially promoted by, a sale, or 
 •ither disposition : see R. S. O. c. 137, ». 3, 
 
784 
 
 PROCEEDINGS WITHOUT WRIT. 
 
 Bule 996. 
 
 Faynieatof 
 
 debts. 
 
 Master in 
 OhainberH 
 has juris- 
 diction to 
 order sale. 
 
 Duty of 
 fatlier to 
 maintain 
 his cliil- 
 dren. 
 
 Mother not 
 so bound. 
 
 On sale be- 
 ing direct- 
 ed, inquiry 
 a& to debts 
 of ancestor 
 made. 
 Sale not or- 
 dered in 
 adminis- 
 tration a:!- 
 tion, when 
 brought 
 merely for 
 mainten- 
 ance of in- 
 fants. 
 
 Principal 
 not usually 
 broken 
 Into. 
 
 Accountaof 
 guardians, 
 
 A sale may be authorized for the payment of the ancestor's debts for "hich 
 the estate is liable, wiiere the creditors are i>re.ssiiig, and los.'s i.s likely i ■ l>p 
 incurred, if the sale be not made : Rf Bmiilii, 4 (ir. 144 ; Re Jiarkir, 'J P. H. 225. 
 
 Tiie pi'tition must l)e ])resented to the Master in ChamlxTs, or to an Official 
 Referee sitting for him, who has jjower to direct a sale, and take all necessary 
 accounts, and make all necessary iiKiuirie.s, and to order payment out of Court 
 of any money reali.sed from any .tale, or other dis))osition of the estate; no 
 reference is to be directed to a Local Al.^ster e.\cei)t by leave of a .hidge : Mf 
 992. These a|>plications are usually taken by tne Kegistrar of the tiueen's 
 Bench Division, or an Official Referee sitting Tor the Master in Cliauiljers. 
 
 Where the father of an infant is living, it i? hi.-; duty prini't fuck- to supfwrt 
 and maintain, and educate, the infant, no m uter what tlie infant's fortune may 
 be ; Himpson, on Infancy, ji. Kil ; and maintenance is not ordinarily alkinefl 
 out of tlie infant's estate, e.xcejjt u])oii pr(K)f that the father is unable to niaiii- 
 tain, and educate, his children, according to their station and prospects in life; 
 and although where there is an express trust in tiie marriage settlement, tn 
 which the father i.s a ]>arty, reiiuiring the trustees to exi)end the trust fund fur 
 the support of the chiulren of the marriage, such a trust mav be enforced by 
 the father : Mundi/ v. Kini Jlowe, 4 Bro. C. C. 223 ; yet wliere the tnistees 
 have an option, or a mere power, to do so, the Court will not coni|)el tliemMj 
 to aiiply tlie tru.'^t fund except on evidence of the father's inability to maintain 
 the infant : U'ilsnn v. Titriu-i; 22 Ch. D. .521 ; 4S L. 'J'. N. S. ST"! 
 
 A mother is not under any legal obligati')ii to sujiitort her off spring', ami 
 consequently maintenance will be .allowed out of the children's own (ininTty, 
 without reference to her ability to support tiiem : .Simp. Kil. 
 
 Upi/n an application under the R. S. O. c. 137. s. 3, for ti.e sale of an infant's 
 estate, it is usual before directin;' any ajiplication of the iircK'eeds, to require 
 proof of payment of the debts of the ancestor, in cases where the infant has 
 become entitled to the j)r()perty directed to lie sold, as heir-at-law, or devisee; 
 or to require an advertisement to be issued for creditors ,vhere no sufficient 
 advertisement has jireviously l)een is.sued by the iwrsoiuu rein-eseiitative, and 
 the Court then makes provision for tiie payment of the debts, if any \yhere 
 the .sole object of the sale is the maintenance of the infant, the proceed iiijrs 
 ought to be tak'.'ii under R. S. O. c. 137, s. 3, and not by way of .iction for the 
 general tulministration of the estate; and the Court has refused, where the 
 latter proceeding has been adopted unnecessarily, to sanction a sale in the 
 aflministration proceedings, for the purpose of mainteiiiince : Fciiwid- \.Fn- 
 wM, 20 (ir. 3H1 ; (IdodMlnw v. Rannii', Hi., 42o ; Fnstvr v. /'iillimna, Ib.,HX 
 
 The i>roceeds of the sale of an infant's lands will not be ordered to l)e paid to 
 the infant's guardian ; liut will be retained by the Court in its own cibtudy 
 until the infant attains majority : Flunitvrx v. n'Kv/i/ii, 4 Out. 701; Mitfli'H 
 V. nUhey, 13 (ir. 44.5 : lilah: v. Blake, 2 Sell. & Lef. 2G;'but see ///'^;///i» v. Lw, 
 14 Ont. Aijp. .'WS. 
 
 As a general rule the Court will not break in upon the principal money, fiT 
 the maintenance, and education, of infant legatees, still it may lie doneHliriv 
 nece.s,sary : Aslil,i,ii<ih v. Axhlimi^flt, 10 (Jr. 430; Cnnie v. Crui:/, U 1'. H. 231). 
 
 The marriage of a female ward of Court without the consent of the Cuurt, i- 
 a contemi)t for which the husb.and m.iy be nunislied by imprisouiiient. Tht- 
 Court ill such cases usually re(piires a .settlement to be niarle of the wifes 
 property as a condition of the husband's release, and will provide tli.it tlii' 
 liusbaild shall take no benefit under the settlement, and vill also iirdinaril.v 
 exclude the wife from power of apixiinti'ig by will in his favour in default'" 
 issue : Re W'a/:, 50 L. T. N. S. 435; and see ll'uekmn.itei- v. Jii'ckiiui.sOr,:V>C\\A>' 
 21 ; .50 L. T. N. S. 795 ; and see Field v. Moore, 19 Beav. 17(). But the Court 
 has no power to compel a male infant marrying without leave t(i f>^'5'!'*,i! 
 settlement of his property against hi. will': Re Leiyh, Lei'jh v. Ltxji', '^> 
 Ch. D. 2!»0 ; GO L. T. N. S! 404. 
 
 Where there are two or more guarrlians of an infant, tlu- fiict that one 
 of the guardians who has maintained the infant, has been in sole receipt of the 
 income of the infant's estate, is no discharge to the other guardians theretur, 
 but if it is shewn that the infant has lieen properly maintained and educated 
 
PROPERTY OF INFANTS. 
 
 785 
 
 ,or's dt'btH f'T'-hich 
 
 loss is likely c be 
 
 . /i„rAT/','lP. R.?25. 
 
 xTs, or to ill! Official 
 id take all necessary 
 )aynieiit out of Cmin 
 on of tlic estate ; no 
 ive of iv.lndge: Huh 
 istrivr of the (.iuetn's 
 iter in Clianiljers. 
 >riiii(i /.'(•/(' to supiiort 
 e infant's fortune may 
 lot ordinarily alkwed 
 ler is unable to luaiii- 
 and imisiiects in life; 
 arriage settlement, tn 
 t-nd the trust fund f'lr 
 ; may V)e eiift)rce(l by 
 et where the tiustees 
 ill not conn>eltliemM) 
 s inability to uiaintaiii 
 
 s\ s. 370. 
 
 :>rt her offsprin;', ami 
 ildren's own (iDiKTiy, 
 
 1(11. 
 
 • ti.»^ sale of an infant's 
 he proceeds, t« reqmre 
 s where the nifantliiis 
 heir-at-law, or (le\i»ee; 
 ors .vhere no sufticient 
 ,nai ivpresentative, and 
 
 debts, if any \Vhere 
 infant, the proceeflmirs 
 V wav of aetionfortie 
 'has refused, where He 
 
 sanction a sale ni tin- 
 nance: reuwlch^.f^ 
 
 Ih. ordered to lie Itaidto 
 urt in its own cusMv 
 ,,.4 Out. vol; ^1/'';'"" 
 
 butsee//"l/;/'"*v.^ii''. 
 
 ■he principal money, f»f 
 ill itniavbe (lonewliHv 
 
 , consent of the CourU> 
 bv iniiirisonnient. ,i": 
 
 1 „. nlade of the ^vlfe^ 
 d will l-rovide that 
 
 \ ,,,, vill also ordma 1 
 his favour nuMautf 
 
 ..■v 17(i. liut the Court 
 l"-^* leave to ^e^ 
 
 nf ant, the f. vet that onj 
 
 r;therK«arcUansthe«'^ 
 maintained and educaw" 
 
 bv the guardian who received the income, a proper sum will be allowed for that Rtlle 997. 
 punwse without the details of the expenditure being vouched : Re Evans, Welch 
 V. hcnnell, ol L. T. N. H. 175. 
 
 907. The petition may pray for the appointment of a 
 guardian, as well as for the disposal of the infant's estat3. 
 Ill that case a proper case must be made by the petition, 
 and established by the evidence, for the appointment of the 
 person proposed. Ghy. 0. 530. 
 
 Petition 
 may pray 
 for aji- 
 X'oiii. • Dt 
 
 of tJJll 
 
 dian. 
 
 The Surrogate Court has also power to appoint guardians to minors : see 
 R. S. 0. c. 1H7, s. 10. This Statute, however, cum-s not exclude the jurisdiction 
 (if the High Court : Be SlaniKiid, 1 Chv. Cli. 15; lie Mc<Jiwen, McQuecu v. 
 MtMillini, 23 (Jr. l!tl ; and .see R. S. O. 137, s. 13. 
 
 Where a guanlian has bt-en api)ointed by the Surrogate Court, the High 
 Court will not ap]ioint any other except for cause, and it should therefore be 
 shewn, on aipplications to apjjoiiit guardians under these Rules, that the minor 
 lia.s no guardian. 
 
 \ gtnirdian may be aiii)ointed for an infant who is a British subject, thoug^h 
 he 1k' resident (nit of tlif jurisdiction, and have no property within the juri.s- 
 diction : llr Wl/h'idililo/, 30 Ch. I). 324 ; 53 L. T. N. S. 920 ; but see Jn re 
 lioiirrw; 41 Cii. ]). 310. 
 
 Where the High Court aiijioints a guardian of the jierson and estate of a Security, 
 minor, it \isually re(|uires tlie guardian to give security. And if a guardian 
 has been appointed by a Surrogate Ccnirt, an incpiiry is sometime:; ordered as 
 to whether the guardian so appointed has given sufficient security ; .'uid if he 
 has not, then he is ncpiired to give additional security 1 .-fere he is emjMJwered 
 to receive moneys on account of the infant. Where, however, the fortune of 
 the infant is trifling, and the fund is lodgcul in Court, the Court ftequently 
 .li.ilienses willi security being given by the guardian ; and recjuires instead an 
 affidavit to be filed by the guardian from time to tim(<, showing the due appli 
 cation of moneys pairl to him under the order of the Court. 
 
 Although the Court is in the habit of paying resi^ect to the wishes and 
 directions of a testator in reference to the guardianship, and care of his 
 cliihlren, it will not do .so, where it is clearly shewn, that a compliance there- 
 witii, wouM he prejudicial to the hapiiiness, and moral training, of the infants : 
 .!""», tJtir. 032 ; R>' Mcij.iccu, McQiimi v. McMillan, 23 (Jr. 191. 
 
 So, where there was a contest Iwtween a ste|>-father .and iin uncle, and the 
 oaild ]>refeiTed the former, the Court beii-g .satisfied that it was better for tile 
 infant that the inicle should Ije apjuiinted, ai)p<)inted him: lie Irwin, Ki Or. 
 4fil. The Court may rem :.ve testamentary guardians, and trustees, f(jr the 
 Kime causes as other "guardians : R. S. O. c. 137, s. 10. 
 
 Where the father is living, if it is pro|H)sed to appoint any other person 
 piariiian, the father must be notified of the ai)plication : Re Henrich.i, 2 
 Chy. Ch. 418. 
 
 It is improper to give a reversionary guardianship of wards in Court to the 
 iucces.sors in ottitvof .my iierson named : Mitriih;/ v. Lumphier, 12 (ir. 241. 
 
 It li) a conteni])t of Cinirt to remove a ward of Court from the jurisdiction, 
 withou', the sanction of the Court ; and the Court will interfere on the appli- 
 cation of iii» guardian to prevent his removal : Re (iiUrie, 3 Ur. 27!t ; but the 
 yourt, if it is for tiie interest of the ward, will authorize his removal out of the 
 jurisdiction, upon tiie undertaking of a guardian resident within the jurisdic- 
 tion to iJriKhice the ward to the Onirt if and when required : Re Callwihan, 28 
 Ch. D. Lsr, ; ,r,2 L. T. N. S. 7. 
 
 . A guardian apiKiinted either by the Surrogate Court, or by the High Court, 
 (•entitled to receive, and can give, a valid discliarge foi a legacy due to his 
 inlantward ; Huijuins v. Law, 14 0nt. App. 383 ; but he has no iwwer to make 
 
 J.A. 50 
 
 Security 
 when dis- 
 pensed 
 with. 
 
 In appoint- 
 ment of 
 guardian 
 Court con- 
 siders in- 
 terest of 
 infant. 
 
 Kemoval of 
 wan! from 
 jurisdic- 
 tion a cou- 
 tompt. 
 
 Ouardian 
 cannot 
 make valid 
 lease with- 
 
 . %. 
 
786 
 
 PnOCEEDINGS WITHOUT WIUT. 
 
 Rules It'iises of the infant's lands in blsnanu' : Tmnig/iii v. Nn'l, 10 (}r. 72 ; Siriizrr v. 
 
 998-1000. McMillan, 23 (ir. 538. Tim report of Top- null// v. AVi'/ jii>iitius to l)c crro' 
 
 out sane- ni'ons in deseriliinf^ tlie guardian as a guardian //'/ litrin. 
 tion of 
 Court. 
 
 Tlio sanction of tiie Court sluudd be ohtained to all dispositions, wlictiierby 
 Hale, or lea.se, of an infant's estate. 
 
 Tlie infant 
 to be pro- 
 duced to 
 .Judge or 
 MaHter. 
 
 Production 
 of infant 
 when dis- 
 pensed 
 with. 
 
 IMIcS, Upon nil petitions for the eale of an infant's 
 estate, the infant is to 1)6 prodnced before a Jiiclgo in 
 ChanibevH, or before a Master. Chy. 0. 531. 
 
 Where tlie infant la out of the jurisdiction, and not of an ag(> making his 
 consent to tlie l>r<icee<lings essential, liis i)roduetion before tlie Miister iiijiy, (in 
 application to a Judge, he ordered to he dis[)tused witii : /.V J.ane, '.) P. R. 
 251 ; .v. r. suh ni:m. He L;tr, 18 C. L. J. 371. 
 
 Rut unless this order he ohtained, th(! infant should in all cases !« produced 
 before the Master, even though he lie under f(jurteen years. 
 
 Inf&nt if 
 over 14 
 yeai s to be 
 exainiuod. 
 Examina- 
 tion to bo 
 attached to 
 petition. 
 
 0!l!K When the infant is above the age of 1-1 years be 
 is to be examined apart by the Judge or Master, upon the 
 matter of the petition^ as to his consent thereto; and his 
 examination is to be stated to have been taken under this 
 Rule, and is to be annexed to and filed with the peiition. 
 Chy. U. 532 ; J. A. Rule 587. 
 
 The sale is not to he ordered without the consent of the infant if he is of the 
 age of fourteen years or upwards : K. S. O. c. 137, s. 4 ; but « here tiiere are 
 severr .. .tnts interested who are over fourteen years, it has iM'eu lield that the 
 consent of a majority of tiieni is suflicient to authorize the Court to iHrccta 
 sale, not nierely of the siiares of the infants who do consent, but also of those 
 who have not consented He //I'rdini/, 13 I'. K. 112. In tiiis wise uiie of the 
 infants i'lterested, had disappeared and could not be found and her ex.ainiiia- 
 tion was dispensed witii. Where an infant over fourteen was an inihecile, her 
 examination and consent were dispensed with : He //I'lnnlj, 13 1'. K. 113. 
 
 The Judge or officer before whom the infant is ('xaniined, should take down 
 his examination in writing, and also his consent, where the consent is neces- 
 sary ; and this should be signed by tiie infant, and the Judge or officr, and 
 attached to the ])etition ; AV Axfuril, C P. H. 192. 
 
 Where the infant is under fourteen, the Judge or officer should not only 
 certify the fact, but should also state tiiat the infant was priKluced before 
 him. 
 
 li]vidence should be given Ix'fore the Judge or officer identifying tiie infant 
 and proving his age : see J{ulc 1000. 
 
 uu(i'e"'i4 lOOO. It shall not be necessary to examine any infant 
 need not bo under 14 vcars of age, in support of a petition affectinf; 
 examined, ^^^j^ infant's estate, unless required by a Judge ; but, unlecs 
 otherwise ordered, it shall bo sufficient for the officer before 
 whom such infant shall be produced, to certify that be has 
 been produced, and that he is under the age of 14 years. 
 J. A. liule 687. 
 
 Where the infants under fourteen were living with their mother out of the 
 jurisdiction, and the mother swore that siie was unable to onnluce tiiem, owin(f 
 to the expense, and the projx'rty was siiown to be worth only S-iW, tlio pw- 
 duction of the infants was disin-nsed with : Itc Lane, 9 P. K. 2C1. 
 
DEVOLUTION OF ESTATES. 
 
 787 
 
 
 r. Tl ; Siri::('r\. 
 )i'iu's to bii t'rro- 
 
 ,ious, wlutlier by 
 
 an infant's 
 a Jiulge ill 
 
 ic Master may, oD 
 lU iMiit; 11 P. R. 
 
 1 cases Ixj produced 
 
 ,f 14 years lie 
 ster, upon the 
 n-eto ; and his 
 ien under this 
 h the peiition. 
 
 infant if lie i«<'ft^» 
 but Nvl.erc there are 
 ivslx-enliekUliatthe 
 
 he Court to direct a 
 .„t,l.ut also of those 
 
 this wise oiieot tne 
 ul and lier exaimna- 
 
 WHS an iuiliecile, her 
 'y, IS r. H. 113. 
 .',1 sliould take down 
 
 the consent is neces- 
 ,,,n,georoffic-T,aiid 
 
 ficer Hbould not only 
 '^vas l-rcKUiced befo« 
 
 identifying the infant 
 
 mine any in^an* 
 petition affecunfi 
 udge ; but, un e.8 
 
 the officer before 
 ,rtifv that he has 
 
 age of 14 years. 
 
 !;«y8»P- 
 p. K. '-^r;!. 
 
 1001. The witnesses to verify the petition are also to be 
 produced before the Judge, or Master, and are to be examined 
 rim voce as to the matter of the petition, and the depos: 
 tions so taken aie to be stated to have been taken under this 
 Kule. Chy. 0.533. 
 
 A suhixeiia may be issued under Ruffi 578 for the examination of witnesses 
 in support of the apidication : Jtniimoivl v. T<wii:)ii, 23 Cli. I). 430 ; 48 
 L. T. N. S. 403 ; McMilUin v. W(inxlji)rou</l,, 10 P. R. 377. 
 
 Rules 
 1001-lOOS. 
 
 Witnesses 
 .n support 
 of petition 
 to be ex- 
 amined be- 
 fore .Judge 
 or Master. 
 
 1003. The Masters of the Supreme Court may examine Masters au- 
 infants and witnesses under the preceding Rule, without tak"exam°- 
 special order or reference. Chy. 0. 534. wHiIoSt 
 
 Tlierc being this special j)rovision as to the officers who may examine infants s?>ecial 
 »nd witnesses, it i.s possible that Special Examiners are inferentially precluded °™'"'' 
 from taking such examinations. 
 
 lOOS. Upon a petition so verified, the Court or Judge court may 
 may either grant the relief prayed at once, or make such iiof or re- 
 order as to further evidence, or otherwise, as the circum- further 
 stances of the case require. Chy. 0. 535. evidence. 
 
 1004. No conveyance of the lands of infants is to beconvey- 
 settled, until evidence is produced to the officer settling the fant's' lands 
 same of the purchase money having been paid into Court, ^^e^pro-* 
 or of the payment thereof into Court having been dispensed og^fgy*" 
 with ; and in cases where there is to be a mortgage for part settling. 
 
 of the purchase money, until evidence is given to the said 
 officer of such mortgage having been registered and depo- 
 sited with the Accountant. J. A. Rule 506. 
 
 This Rule applies not only to sales of infants' lands under Biile 992, et. seq., 
 but tt) sales in actions or other proceedings in Court, in which infants are 
 
 interested. 
 
 The i>roper evidence of the payment of the ijurohase money is the Account- 
 wit'H certificate of its having been i)aid hito Court ; and where a mortgage is 
 refiiiirftd to be given, the Accountaiit's certificate of its having been deix)8ited 
 with him is also necessary. 
 
 Where a purchaser makes default, the dejxisit and all other payments on 
 MCount of purciiase money are forfeited, when the sale is under the standing 
 conditions of sale (Form No. 43), and the proi>erty may be f)rdered to be resold, 
 and the defaulting purchaser ordered to pay any deficiency : lie HomUtrook, 12 
 P. R. 501, 
 
 5. Devolution of Estates. 
 
 1005. Before an executor or administrator takes pro- Notice to 
 ceedings under The Devolution of Estates Act, for the salegSan. 
 of real estate in which infants are concerned, he shall give 
 to the Official Guardian or other officer charged with the 
 duties referred to in the 8th section of the said Act notice 
 

 788 
 
 PAOCKEDINGS WITHOUT WRIT. 
 
 Applica- 
 tion to 
 Judge. 
 
 Buie 1006. of the intention to sell, and shall not he entitled to any 
 expenses incurred before giving such notice. 
 
 The Devolution of Estates Act ia R. S. O. 1887, c. 108. 
 
 1006. The Official Guardian or other officer nforesaid, 
 or any person interested in the real estate or in the proceeds 
 of the sale thereof, may apply in a sumnuiry manner to a 
 Judge in Chambers, upon notice to all jjarties coneenn d or 
 to such persons as the Judge may direct for such direction 
 or order touching the real estate and the proceeds thereof 
 or the costs of the proceedings as to the Judge may seem 
 meet. 
 
 6. Summary Inquiries into Fraudulent Conveyances. 
 
 Voluntary The jn-incipal onactinents, under which croditurB arc fuahlcd to reach 
 
 *'/'* t^c"^" P''"I"'*'ty fJonxeyed away by their debtors, are, 
 
 veyances. (1) The Statute 13 VAix. c. 5, wliich made void a.s against civditcirs all 
 transfers of lands or goods made to delay, iiinder or defraud cii'ditois and 
 others ; and even though for valuable consideration, iniless taken liiiinl Hdr imi 
 without notice or knowledge on the part of the jmrcha.ser : H. S. (). IS.^7, c. %, 
 je, 3. 
 
 {'2) R. S. O. 1887, c. 124, which makes transfers made by persons in iusDlvcnt 
 circumstances, and which defeat or prejudice creditors, void as against such 
 creditors. 
 
 Undor i:i The Statute 13 Eliz. c. 6.— Under this Act the law infers that cnditor-s arc 
 Eliz. c. 5. delayed, etc. , by a voluntary conveyance made iit a time when by ri'asoiHif 
 iudel)tedness the transferor by so dealing with his ])roperty renders liinisilf 
 unable to |iay his creditors if recjuired to do so : Frccmoii v. /'"/k, L. K. H Kq. 
 20(i ; o Chy. 'AO; whether the conveyance is fraudulent or not: Inrin y. 
 Friciiifiii, 13 <ir. 4()r) ; Ferfiuxim v. Kniiiii, Ki Ont. App. I'TO. But a valid 
 voluntary settlement nuiy be mafle by a settlor, indeiited at tlii> time, prDvidwl 
 ample available assets are left out of the settlement to meet those debts, 
 wlu^ther the del)t8 are then actually i)avable or not : Frnmini v. l''ij»; sufirn : 
 Ih Iti(U-i; 22 Ch. D. 74 ; O'Doliirtii v.' Ontario Bimk, 32 C. P. 28.'.. 
 
 A tran.saction l)y which a creditor is delayed is as much within the Statute 
 as one which defeats him altogether : Martha v. McKnnw, 14 (ir. .")',(. 
 
 A fraudulent intentif.u is sufficient to avoid the transaction whether there 
 were creditors existing at the time or not: tn'^' Mrrchants Bunk \. ('/.')*, l^ 
 tJr. 5!)4. In the case of voluntary conveyances, it matters not whether tho 
 volunteer had or luul not notice of the fraud, but in the ca.se of a jnuidiaser for 
 value, iraudulent intent on the part of the transferor alone will not iivc id the 
 transaction: Wood v. Irwin, 10 (Jr. 3!>8 ; Mrnhantx' Jiank w C/ndr, IH (ir. 
 5!t4 ; /»V Johnmn, 20 ("h. 1). 3!)4 ; J)a/alixh v. McCarthu, l!l (Jr. 578; .!//(" v. 
 MrTarixh, 8 Ont. App. 440. 
 
 A voluntary disposition of property, which, by reason of indebtedness at the 
 time, is capable of l)eing avoided by creditors, may be avoided by any sunse- 
 qiu-nt creditor, who was such at the date of its execution, or who becomes .smli 
 after tiuit date, so long as any one of the original creditors is unpaid ; Jf»km<^ 
 V. Vau'jhan, 3 Drew. 41!t ; Freeman v. Pope, Hi'/mt : MidiUetnn v. I'ulhicli, '- 
 Ch. 1). 108 ; Vinikn v. Frawr, 28 (ir. ,502 ; CoUard v. Bennrtl, Ih., .'iri(i. I "d'r 
 circuuistances also from which intent to delay, etc., may be ])resunied, u volim- 
 tary settlement may be void against subsequent creditors, where it would net w 
 ])resumed fraiidulent merely Injcause of the settlor's embarrassed circiniistanees 
 when he made it : see May on Fraudulent Conveyances, 2ncl ed. (i4. A con- 
 
SUMMARY INQUIRIES INTO FRAUDULENT CONVEYANCES. 
 
 789 
 
 itled to any 
 
 jer aforesaid, 
 1 the proceeds 
 • manner to a 
 , con cor 111 d or 
 uieh direction 
 )cee(ls thereof 
 dge may seem 
 
 ONVEYANCES. 
 
 (iialilcd to reacli 
 
 jiiinst creditors all 
 
 ■nuitl civditoi-s awl 
 
 taken 1)1111,1, iiilr mi 
 
 H. S. (). ISf'T, (-'. W, 
 
 licrsims ill insolvent 
 (lid as apiiiist »udi 
 
 •s that ercditoi's ari' 
 , wlion bv ivasoiKit 
 •vtv ww\vY> Imiisi'W 
 
 y.'l'n,,,, \u K. ItH 
 It or not: Inn" f- 
 , •>7(). Milt a viiliil 
 It the tiiuf, liroyijlwl 
 o iiiirt those (lelits. 
 ■vtiiti wl'"!",'"!'''"- 
 p. r. 28.-). 
 
 , Nvithiu the Statute 
 ,„, lICv. r.'.i. 
 .action whether their 
 
 t..rs not whether tl.e 
 :asc of a imirhaser for 
 
 f,„c will not uvndti- 
 
 ,nik V. (V."-/,r IM'f; 
 
 , I'Kir. r.7« ;•"''" '• 
 
 of indebtedness at the 
 
 avoided l.y any «''';^; 
 
 „rwliohe«'ii«.;»^' 
 .Vs is nni.aid :./;"."'.; 
 
 l„, presumed, a Ml"! 
 
 where it would net If 
 
 :,issedcirc,i.usUne- 
 
 i, 2ik1 cd. I'4. A ton 
 
 V 
 
 hu' 
 
 eyance which has the result of dofeatinjf creditors will not be presumed toSulelOOT. 
 .luve lieeii executed with that intent, if from other circumstances the Court is 
 satisfied that sucii was not the intent : Ex p. Mrncr, He Wine, 17 *i. B. J). 2JKI. 
 
 Where a deed is made for value the question is whetlier it was niarle boni 
 ilk and the burden of proof of this is upon those who seek to set tlie deed aside : 
 'jiihiisiiii, 51 L. J. Ciiy. r)()4. 
 
 Where none of the creditors wore .judgment and execution creditors and so 
 might beeiititled toattaok acoiivevance, as a fraudulent preference ; it was held 
 that in the aliseiice of fraud they liad no /oritu xtctiili to set it iwide under the 
 Statute of Klizaiietli : Jiuililimi <e Loiin Axu. v. I'tdmcr, 12 Out. 1 ; and see 
 Mm-ilnnnld v. MclMI, !) Out.' 18") ; 12 Out. App. 5!>3 ; li(;al Eitatc L. Co. v. 
 Yurkrilh- d' VhiujIkih li'ii«( Co., '.I Out. 4()4. 
 
 A transaction by wliich property purchased by the debtor is conveyed to his 
 wifeor other person as iiis appointee so as to dttfeat creditors, isadevice witiiin 
 the Statute and tlu^ iiusband is not a jiroper party to iiroceedings to set the 
 transaction aside : Marthck v. O'HiUlimn, L'.") Gr. 31*2. 
 
 Sii where laiKJ is sold by the debtor and with tlie proceeds other lands are 
 |)iiix'hased and conveyed to an appointee of the dei)tor, the consideration 
 niiinev may be followed into the lands conveyed to tlie appointee : Flcini/ v. 
 I>i:'ii;il'\ •_'('; (Jr. ('(7. 
 
 As to the eirciinistances under wliich a man may validly exjjend moni\y to 
 make iiuprovt ineiits upon lands of his wife, see JacLsoii v. Ikncman, 14 (ir. 
 l;")!!; I in rid sun v. Murifiiiir, 7 Out. App. !I8. 
 
 Delay in taking proceedings to avoid a conveyance under the Statute is no 
 defence unless continued long enough to bar the legal right : A'r MaiUlurr, 27 
 
 Ch. 1). rex 
 
 R. S. 0. 1887, C. 124. — Section 2 of this Act jirovides as follows : — Fraudulent 
 
 i. Kvery gift, eonveyance, assignment or transft'r, delivery over or jiayment *'°"^'''y' . 
 of goods, chattels or effects, or of bills, bonds, notes, securities, or of shares, ji'^^j^j.^" 
 dividends, preniiums or bonus in any bank, company or corporation, or of any onces by 
 iitlier property, real or personal, made by a person at a time when he is in Insoiveuts. 
 insolvent circumstances, or is unable to pay his debts in full, or knows that he 
 is on the eve of insolvency, with intent to defeat, delay, ur prejudice his 
 creditors, or to give to any one or more of them a preference over his creditors, 
 or over aiiv one or more of them, or which has such effect, shall, as against 
 them, he utterly void. 48 V. c. 2t;, s. 2. 
 
 [Sec. 'i make exceptions of certain assignments for the general benefit of 
 crwlitors and certain ImiiA Jiilc sales. ] See Hoilfri'i/ v. /'<»//(■, 13 .Vpp. Cas. 4!)7, 
 where it was said that a deed which contemplati's the full payment of all 
 creditors cannot lie heUl to be void as intended to defeat or delay cniditors. 
 
 Previously to this Act, it was held under K. S. O. 1877, c. 118, that in order to 
 work a fraudulent preference there must be a concurrence of intent to do soon 
 the part of botii debtor and creditor : JIhiiih v. Mucf.iii/, 10 Out. 1(17; and *he 
 hiteiit to prefer might be rebutted by shewing ])ressure exerted by the creditor 
 hv his demanding iiaymeiit or security ; S/nlrr v. Oliver, 7 Ont. 158 ; Lunij v. 
 limm-k, 12 S. C. K. "532 ; Rtlioyd, 15'L. H, Ir. 321. 
 
 Under the present .Vet it was at first held that without regard at all to any 
 question of Ikuki jiili'.i, pressure, or knowledge of the debtor's affairs, a transaction 
 of the kind mentioned in sec. 2, wdiich linn tin' (fli'it of defeating, delaying, or 
 prejudicing creditors, or of giving a preference, is void under the Act : Rinr 
 Slure (h. V. Sill, 12 Ont. 557 ; Jtitf v. M<])<nmH, 13 Ont. 352 ; but the Court of 
 Ajipeal has hehl that the words "or which has st-ch effect " apply only to the 
 second hranch of sec. 2, dealing with the nreference of one creditor over 
 another, and do not a|)ply to the first brancli of the section ; so that a gift, 
 conveyance, etc., wdiich has the effect of defeating, delaying, or prejudicing 
 creditors cannot be avoided without proof of intent to do so unle.ss it has also 
 the effect of giving a ])reference to one creditor over others : Molsons Hank v. 
 Halter, KiOnt. App. 323. 
 
ill ■ 
 
 mi: di' ::HWf :?In«. 
 
 790 
 
 PROCEEDINGS WITHOUT WRIT. 
 
 Sole 1007. There f>eeni.s to be no material difTerenci! lietween the expressions " in insol- 
 vent cii-ciinistivnces " and "unable to pay his debts in full" : Ihiminian hank 
 V. Cowaii, 14 Ont. 405. 
 
 A debtor is in insolvent circumstances if lie is unable to meet the current 
 demands of his creditors, and has not siitticii'Ut property subject to execution 
 to |)ay all his debts if sold luider lepfal jirocess at a sale fairly and reasonably 
 conducted : Wiirnnc/i' v. Jvi'ifp/ri; 14 Ont. '2XS ; Itinniuion. lUtnk v. <'i}irtiii, IL, 
 4Gi5 ; Clnrkson v. Stirliii'j, //a. 4(50 ; line v. Mchumild, 13 Ont. 'X>2. 
 
 Where a favoured creditor to wIkjui was transferred a i)rf)miss()iT note for 
 purchase money of debtor's business, i)arted witli it to a Ixoin jii/c liuldcrfor 
 value, it was held that no relief could be given ai^iinst the preferred crwUtor: 
 Robertson v. Holla ml, Iti Ont. o32. 
 
 Where a creditor's solicitor, witii consent of a debtor and knowledge of his 
 in.solvent circumstances, jmicured a third person to advance money to the 
 debtor on security of a chattel mortgage on his stock in triide, witiiout 
 divulging anything as to the insolvent's circumstances or why tiie money was 
 wanttnl, and out of tlie money the solicitor |)aid the creditor in full, it was held 
 that the chattel mortgagee was [yrotected by sec. 3 of the Act as l.enif^ a ]ier.<(in 
 wlio had made a bona Jidr advance of money .vithin that section : (iilbuiu v. 
 Wilson, 17 Ont. 2!K» ; affirmed in tiie Court of Ajtpeal, 14th .fan., ]8!)0. 
 
 For instances in which transactions have been set aside : see Stmhhml v. 
 Wilson, 1() Ont. 17 ; Jchnsun v. ('line, lb., 120. 
 
 A mortgage by any insolvent person on future acquired ciiattels, to secure 
 repayment of tiie price of such chattels to tlie vendor tliereof, is binding and 
 not within the above Act : Couldimj v. JJeeminy, 15 Ont. 201. 
 
 T?he Court 
 or a JudRO 
 may at the 
 instance of 
 any judg- 
 ment credi- 
 tor call on 
 the debtor 
 and his 
 grantee, 
 etc., to 
 show cause 
 why lauds 
 conveyed 
 by fraudu- 
 lent (.'rant 
 should not 
 be sold. 
 
 lOOT. Where a judgment creditor or a person entitled 
 to money under a judgment or order, alleges that the 
 debtor or person who is to pay has made a conveyance 
 of his lands which is void, as being made to delay, binder 
 or defraud creditors or a creditor, it shall not be necessary 
 to institute an action for the purpose of setting aside such 
 conveyance, but [a motion may be made to] the Court or a 
 Judge in Chambers by the judgment creditor, calling upon 
 the judgment debtor or person who is to pay, and the 
 persons to whom the conveyance has been made, or who 
 have acquired any interest thereunder, to shew cause why 
 the lands embraced therein, or a competent part thereof, 
 should not be sold to realize the amount to be levied under 
 the execution. R. S. 0. 1877, c. 49, s. 10. 
 
 This Rule was first intnxluced into the law of Ontario by The A dmifiistratim 
 of Justice Act, tS7d ('M V. c. 8). Itenat)les summary proceedings tn taken lie in 
 an action in which a judgment has been obtained, to reach, liy way of ef|uital)le 
 execution, lands of tlie debtor fraudulently conveyed. Previuu.sly a suit ni 
 Chancery was necessary. 
 
 The Rule has reference only to transfers of land. The eimviyaiicfs within 
 its purview are such as are " void as being mad(^ to delay, hinder or defraud 
 creditors, or a creditor " ; in other words, sucli as come witiiin tiie Statute 13 
 Kliz. c. 5, (which was directed against convi^yaiices " to the end, purpose and 
 intent to delay, hinder and defraud creditors and others, etc., ' and which 
 declared sucii conveyances to Iw, as against such creditors, " clearly and utterly 
 frustrate, void and of none effect ; ") and ))robably also such as are void under 
 R. S. O. 1887, c. 124, as to which see supra. 
 
INQUIRIES INTO FRAUDULENT CONVEYANCES. 
 
 791 
 
 The Statute from which this Huh is taken enacted that, in tho cases referred Rule 1008. 
 tn, ''the ('(nirt i>r a .hulffe in 'nianilicfs niay iipnn tiu'ai)j)licat'on of tlie ,jll(i^;- 
 ment creditor call \\\»m, etc." I'nder tiiis languajjfe it was held tiiat the 
 proiwr iiiacticc was tdohtain an order /m'.v/ eulliu!,' \i|>i)ii the jii('i«nieut delitor, 
 etc. to siiew cause: Warl: v. MkiiIIih, ~ ]'. 1{. 14. The |ire.seiit liith- wouhl 
 seem to liiive lieeti (lifFereiitly exjiresseil in crder to sliew that a motion is to l)e 
 made, as in other cases, on notice, and not by way of an order ;(/.'/.• wc^e 
 RHleh%. 
 
 Originally tlw motion was in Chancery nciuired to l)e made to a .Tudtfe in 
 Ciianiliers: sei' ',>'"■''" v. Siiillh, i V. H. -l"-".) ; HV//7.- v. .Waiif/nii, xiijint : hut in 
 the CoiniiiDii Law Courts the (Cleric of the Crown and I'leas has exercised jiu-is- 
 (liotion : see )('("•< v. Il'ihsun, 7 I'. K. 'X.W. Now it would seem th;it the Master 
 in Ciiauilters and other officers having' like powers may entertain siicii aiiplica- 
 tions ; see note to Rule 30, p. 144. 
 
 The inchoate right of dower at law obtained by a wife in land con\<!yed to 
 herhusliaiid formerly made her a jiroper party defendant to a suit to set tlie 
 conveyance aside : MrFiiflmiil v. Milutrlund, ',) P. 1{. 73 ; and tlierefore siie 
 would .seem to be a proper party to be served with notice under this Ritlv. 
 
 ^((rrc whether an onler will be made for a sale at an earlier periinl than t..e 
 plaintiff c()\dd have a sale if theSheritf liad i)een al)le to sell undera. /'.,/'''. lands : 
 see P"i'li' V. Infill, 8 I'. K. 40. The practice in Chancery in setting aside a 
 fraudident conveyance by an execution deljtor was never to accelerate the .sale. 
 
 lOO-H, Wliei-e any judgment creditor in an action, or aTheCourt 
 person entitled under a judgment or order as aforesaid, nm'ycaif'' 
 alleges that the debtor or person to pay is entitled to or has ","ent"'^^ 
 an interest in any land which under ^he former practice •^•''','o»'«"o- 
 
 1111 1 1 i 111 1 1 *" snow 
 
 coulunot be sold under legal process, but could be rendered enuso why 
 available in an action for equitable execution by sale for a'bio mter- 
 satisfaction of the debt, the Court or a Judge in Chambers f,';,\%^J,'°'",j^ 
 may, upon the application of tlie creditor, call upon the t<> pay exe- 
 debtor or person who is to pay, and the trustee or other 
 person having the legal estate in the land in question, to 
 shew cause whv the said land or the interest therein of the 
 debtor or the person who is to pay, or a competent part of 
 the said land, should not be sold to realize the amount to 
 be levied under the execution. R. S. 0. 1877, c. 41), s. 11. 
 
 In Wiii'il v.'llinl, 28 (Jr. 141), in consecpiencf^ of the section from whicli this 
 iJ"?iM3 taken having l>een, with others, groupeil under the heading in the statute 
 "Smuniary luipiiries into Fraudulent (Conveyances," and it was held that, 
 equitable interest was not within tlie section unless it was in .some way covered 
 up hy :■ fraudulent conveyanci'. The above heading has been carried into tlie 
 Rules without alteration, l)ut by reason of Ru'f 5 the lieading is to be regarded 
 as for coiiveuienci) onlv and doe.s not affect the construction of this Huh : 
 I'elers v. .S/c-f/.-.s-.v, 13 P. "R. 23,"). 
 
 Any interest in land tlx^-efore which cannot be sold by the Sheriff may Ifi 
 ortlerid to lie sold under this /'uli' . //*. <'.'/., the interest which the debtor ha'* 
 under an agreement to purchase land : //•. ; J{c Pfittie ,(.• Cmwfuvd, !) C. L. T. 
 45. 
 
 For what is saleable by the Sheriff see R. S. O. 1877, c. G4, ss. 21, 22, 25, 
 and note to Huh- 1(35, Kuimt ]). 
 
 The language! of tlii.s TJif/fh.as, jirobably by an oversight, not been altered as 
 was done in ItuU' 1 ()(I7, so as to make it (dear tiiat the motion is to be nisule npcm 
 notice: see note to liule 1007 ; it would seem, noverthtless, that an order nisi 
 would not now be the proper mode of procedure in view of Rule 52(5. 
 
 ^ 
 
 ^ 
 ^ 
 
s 
 
 
 792 
 
 Rules 
 1009-1010. 
 
 ProcuRcl- 
 iniiti after 
 sucli appli- 
 cation. 
 
 Crros ill 
 
 County 
 
 Courts. 
 
 Applica- 
 tion to bo 
 mado til 
 the .hulfio 
 of the 
 County in 
 whicli tlio 
 lands ari! 
 situate in 
 County 
 Court 
 
 PROCEEDINGS WITHOUT WRIT. 
 
 lOOO. Upon any application under either of tlie two 
 preceding Rules, such proceedings shall be had, either in a. 
 summary way, or by the trial of an issue, or by inquiry 
 before an officer of the Court, or by an action, or otherwise, 
 as the Court or Judge may deem necessary or convenient 
 for the purpose of ascertaining the truth of the matters iu 
 question, and whether the lands of the debtor's or other 
 person's interest therein are liable for the satisfaction of 
 the execution ; but if in a case in a County Court there is a 
 dispute as to material facts, and the value of the land, or 
 the debtor's or other person's interest therein, appears to 
 be over $J00, the Court or Judge shall direct the trial of an 
 issue in the High Court, and may name the county in wliich 
 the trial is to take place, subject to any order that the Hii,'h 
 Court or a Judge thereof may see fit to make in that l)eliiilf. 
 R. S. 0. 1877, c. 49. s. 12. 
 
 This Jtii/f regulates the mode of inquiring into cases under either Ruli 1<I07 
 or 1IH)8. 
 
 The mule ill wliieli any riuestion arising will be dirt'cted to l)e tried will lie 
 regulated 1)V convenience in tlie narticidar case. An issue was directcil tciln' 
 tried in Mn-rlmils ]ia,iL- v. lir^mh-r, « P. R. 13.S ; Un/ v. /i'/.7./s i:U'. L. .1. 
 40 ; an iiu|uirv hy a Master in I'etrrs v. Sluttfsx, 13 I*. J{. L'S;"). An order h:u< 
 made forthwitli in Watts v. H'lhson, 7 P. li. 334, no cause being siieun. 
 
 The order if made summarily, or the judgment on the trial of an issue, should 
 probably be in the same form as a decrei^ in the like case would fciniierly liavc 
 tx'eii in Chancery : see note to Ridf 1011. 
 
 Where an issue has been directed in a County Court case to )«■ tried in the 
 High Court under the last clause of the Iii'li\ the Migli Court merely tries the 
 issue and has no further jurisdiction in the matter; tlie final dis|i(isiti<m of the 
 matter, consetiuent >i|)on the decision on the issue, takes place in tlie County 
 Court in which the issue was directed : MerclKdi/'S /imik v. Unrnkir, f* ]'. R. 133. 
 
 lOIO. In County Court cases the application under Pailes 
 1007 and 1008 shall be made to the County Court, or to a 
 Judge of a County Court, of the County or Union of Counties 
 in which the lands to which the api)lication relate.s are 
 situate, unless the said Court or Judge upon tlie liearingof 
 the application deems it more convenient and more con- 
 ducive to the ends of justice to order, and orders, that the 
 proceedings be had and taken in the Court or before a Judge 
 of the Court, from which the execution issued ; in which cjise 
 the Clerk of the County Court of the County in which the 
 land lies shall transmit the papers filed with him, toj^ether 
 with the order of transference, to the Clerk of the County 
 Court from which the execution issued. R. S. 0. 1877, c. 49, 
 s. 13. 
 
m 
 
 QUIETING TITLES. 
 
 793 
 
 (Ut I'itluT Kill, W: 
 
 cifyiiiK llie 
 
 1011* Where in a summary way or, upon the trial of an fo^^ti^ig 
 
 issue, or as the result of any inquiries under the four pre- [,• ,,i,„,^,,j. 
 ceding Rules, any land, or the interest of any debtor or j^'^'^'^'^i'f f 
 other person therein, is found liable to be sold, an order foimd 
 shall be made by the Court or Judge, declaring what land s'.uo, muoi-- 
 or what interest therein is liable to be sold ^and directins^",|j-[,,\'.'J|'^y. 
 sale thereof by the Master according to the usual practice 
 K. 'a. 0. 1H77, c. 41), s. 14. 
 
 Iiistfinl iif tlic words in hrackcts tlie oriuriiiiil Hection liad tlu' words " iiiid 
 siii'li i)T(li i- shall 1)(' ii KiifHcit'ut warrant to the iiropcr sluTiff or other officer to 
 piMwtil with till' sale of the said land and interest." 
 
 'Pile oriifinal lan!,'ua^,'e of the llnlr does not seem to have been ade((Uate to 
 eiwlilc the ecuiitaltle interest to Ix^ propei'ly dealt with, as it would have l)een 
 in ('haueery, so tiiat the interests of all persons eoneerned nii|;lit he protected, 
 iiieiiiiil>rancers, etc., removed, and |)urchasers enal)le(l, to ascertain and purchase 
 till' interest at its real value. 
 
 The suhstituti'd words in the present Jtiih- would seem to make it proper 
 that the order pronounced should he in the same form as the decn* in the like 
 cast' wo\ild formerly have been in (,'liani;ery. 
 
 1012. Any notice of motion for an order under Bules '■''" /''•'"''■"* 
 1007, 10C8, or 1010, may contain a description or the land rej-isterod 
 ill question, and upon tiling the same with tiie proper 
 officer, signed by the solicitor of the applicant a certificate 
 o{ lis pcwieits maybe issued for registration, and in case 
 the said motion is refused in whole or in part, a certificate 
 for registration of the order may be issued. 11. S. 0. 1877, 
 c. 49, s. 16. 
 
 7. Quieting Titles. 
 
 10l». [Tndcr •' The Quicfinn Titles Act " the petition for 
 an invt'siigation of title is not to include two or more pro- 
 perties dependent on separate and distinct titles ; but may 
 include nny number of lots or parcels belonging to the same 
 person, and dependent on one and the same chain of title. 
 Chy. 0. 492. 
 
 The Act referred to in this liiilr is T/ic (^iiivliin/ ntli.s Act, (R. S. O. e. 113.) 
 Where the |)rovisioiis of this Ruli' are violated, the Referee may refuse to 
 proceed with tiie investigation of the title. This nuiy lea(' to delay and 
 exiieiise, as tlie objection can only ai)pear before the lieferec, after the iiroceeil- 
 iii(,'a necessary to show the title have been taken. The object of the Huh is to 
 prevent tho proceedings becoming unnecessarily intricate. 
 
 Who May FUe Petition. -Any owner of an estate in fee sim|)le in land, or 
 any tnistet^ for the sale of the fee simple, nniy file a petition without have : 
 U. S. O. c. 113, s. 2. Any other person who has any estate, or interest, legal, 
 or efiiiitiihle, in or out of land in Dntario, maj' also file a petition : //*. s. 3 ; but 
 under Rule 1014, puift, the i)etition in the latter case, must first receive the 
 sanction of a.Iudge before it can be referred to a Referee for investigation. A 
 vendor before conveyance, is within sect. 3, and his petition will not be enter- 
 
 Two or 
 UKU'e pro- 
 jierties 
 helil by 
 Bei>arato 
 titles notto 
 lie inehuled 
 in I he same 
 petition. 
 
 Who may 
 fill) peti- 
 tion lUidor 
 Quictiwj 
 Titles ,1c'. 
 
 ^ 
 
 % 
 ^ 
 
 '■Jl. 
 
 
f 
 
 794 
 
 PROCEEDINGS WITHOUT WRIT. 
 
 Rule 1013. 
 
 Not iiopow- 
 sary tliat 
 potitidiiur 
 «hoiil(I bu 
 
 ill l)O»H08- 
 
 Biuii. 
 
 Filing a 
 petition 
 will not 
 save tlio 
 rifjlitH of a 
 contestant 
 othorwi«(i 
 barred by 
 Statute of 
 Limita- 
 tions. 
 
 Descrip- 
 tion of 
 land in 
 petition. 
 
 Beforeo 
 may insert 
 more spo- 
 cittc do- 
 script inn of 
 land in the 
 notices to 
 be served 
 or pub- 
 lished. 
 
 Estate 
 claimed 
 must be 
 correctly 
 stated in 
 petition. 
 
 Form of 
 petition. 
 
 taint'il without tin? consent of liis vendor; Id' Hmirii, 3 Cliy. f'li. V,H; und a 
 petitioner who is only tenant in fee in remainder miLit first olitain tlic cuiiscut 
 of tlie tenant for life to tlie filiuff of tlie petition ; /if I'elten, « 1'. 1{. 470, 
 
 Formerly it was necessary that tlie petitioner slionld lie in pnsscsniiin )iv 
 himself, oi' tenant: /^• Hrll, lU'hy. Ch. •J.'»t» ; A'.' M nlhvlt.nul, l,s ( ; r. .".l's ; /,, 
 Mi'iiii, 1; I'. K. loO ; hut that is no longer necessary ; and a pi>t it inner, Hlmi^ 
 out of possession, m;iv, on ohtuininj,' a certificate of title, (il)tain on pi'tition an 
 order for the delivery of possession to him of the lanfi in tiuestinn, whiciiiiiuv 
 he enforced by the same process, as a iudK'ment for the recoverv "f Iuik! • mh 
 K. S. (). 113, s. •»;{; y^• McDoiMid, Ijefore I'.oyd, C, Kith May, INSI. 
 
 A itetitiou may he tiled by a devisee claiming' imder a will where the jirnpcrty 
 intendt<i t(j he devised has been erroneously (h'scribed : Ri' /.inms, L' Cliy, Cli, 
 SoT ; I{i' ('((/l(i'/li<ni, H r. 1{. 471 ; but a jjrantee cannot l)y this nicaiis icotily 
 an erroneoiis description in a deed under which he claims : /'/. .\s to cases 11: 
 which property intended to be devised, may pass under a will, nolu itlistaiidiiit; 
 a misdescription of it in the will ; sw Itr S/ianr, it (h\t. ',i\'2; //ii/.ri/ \\Sli ir,\ 
 11 Ont. KM) ; )'i''ni'/ v. J'lirri.s, 11 Out. 5!t7 ; ''<iiiiiih<'i:s v. .'^uiiiiiicys, o Out. 110; 
 ll'/t;//(/ v. Collins, if. Ont. 1.S2. 
 
 Effect of Filing Fc>titlon, - The filing i>f 11 petition is not such a iirecccdiin; 
 as will save the rijfhts of a |)arcy (■nii/cstdiit, otherwise barred by tiie Statute c.f 
 Limitations : Laiiuj v. .1 reri/, 14 (Jr. ■'{;{; nor, it would seem, will it have tlie effect 
 of stojiping the runnin),' of the .Statute in favour of a contestant in adver* 
 possession, until such contestant is notified, or has filed a claim, or (itlierwi>i! 
 become a party to the proceedings, nor even then, unless the petitioner ulti- 
 mately olitain a certificate of title. Where a contestant claiming title luideiii 
 tax sale, was barred, but the petition wa.^ also ultimately dismissed, it was lielil 
 that the filing of tlie petition and the proceedings had on tiie claim uf the 
 contestant, were not an effectual (piestioning of the latter"s title, mi as pnTliide 
 him from the benefit of the Act, 'M Vint., c. l.")(<)), curing tiie dileet in tiie 
 tax sale, under which he claimed, if not questioned within two years : McSnh 
 V. I'cr, 32 C. I'. 54.''). 
 
 Description of Land. — The description of the land in the headiiiff ef the 
 l)ptition should lie sufficient to enable the land in (piestion to lie iiientitied, liut 
 usually it is unnecessary to .set out in it the metes and bounds. The de.-^erip- 
 tion of the lands in the body of the |)etition, should lie given in the fciriii i. 
 which the petitioner flesires the land to be descrilied in the certificate of title. 
 Where there is any plan of the projierty registered, the description of the liimi 
 in the petition must be in accordance witli the olan : Itf Mii:<i\ .S I'. 11. 4"5; 
 K. .S. (). c. 114, s. M, s-s. L'; and wheie pending the petition, tiie land watil.iid 
 out into buihiing lots according to a registered plan, the descri|itii)ii wa.s 
 recjuired to be amended according to the registered plan : Il>. 
 
 Where the description of the land in the heading of the petition, apjieurs tn 
 the Keferee of 'I'itles, not to lie suflficiently exiilicit, lie should reipiire a suffi- 
 cient and iiroper ilescription to be inserted in all notices liy him directed to le 
 pulilished, or sei'ved ; and where it appears that there is no sutHcieiitly definite 
 description of the lands contained in either the heading, or the ImkIv ef the 
 petition, or that tlio description given is misleading, the Heferee ni.iy reqiiii^ 
 the petition to lie amoniled in that respect, before |)roceeding witii tiie investi- 
 gation. The iietition, if amended in this rps|)ect, wotild albo re<|iiire to bt" re- 
 registered, if it h.ad been previo'.isly registered : see R. S. U. c, 113, s. (J. 
 
 Estate, or Interest, Claimed,— The estate, or interest, claimed hy the 
 j)etitioner, should al* lie accurately stated in the pt^tition, and also the estates 
 and interests of all other jiersons in the land, which are intended to !«• 
 admitted by the petitioner, otherwise tlie petitioner may lie ordered to pay the 
 costs of such other persons who may come in to prove claims, not admitted 111 
 the petition. 
 
 Form of Petition. —The form of petition given in the Schedule to the -Act, 
 R. .S. <). |>. 1037, shouUl be followed as nearly as may lie. It is neither 
 necessary, nor desirable, to set out in detail, in the jietition, the fiicts mm 
 circumstances affecting the title ; but whenever it is necessary, a concise state- 
 
QUIETINO TITLES. 
 
 795 
 
 Miy. f'li. ir)H;aii(ia 
 t cilit:iili till' culiM-iit 
 
 , H 1'. U. 470. 
 
 lie ill jiiissfKnion liv 
 mil, IN (Ir. .VJS ; /> 
 
 11 |l('tiliiiMl|'. «lln i^ 
 
 l>tuiii III! pi'tltidn uii 
 lucsticiii, uliicli may 
 I'uvcrv "l" land ; ste 
 liiy, INM. 
 
 1 will re tlic iiroiKitv 
 ^• l.wu,.<. JCliy, cii 
 y tliis iiic'iUix rtftitv 
 
 III, As til CHSf'H II 
 
 I ill, iiolwitlistaiKliiiK' 
 IL'; lliil:<:l\\!<tnv,, 
 UimiiH-rt, •") Out. HH; 
 
 ot siu'li ii iirccfcdint' 
 red hy till' Statute (,f 
 will it lijivc tlicctft'Ct 
 iiliti'stiiiit in advene 
 
 I cliiiiii, 111- (itlitTwiM' 
 •is till' pctitiiinfr nlti- 
 
 .■liiiiiiiK titli' nndiia 
 isiiiissfd, it was liclii 
 on the claim of the 
 -I titli'. so as pivcluile 
 iiiL,' till' (Ifftrt in tilt 
 
 II two ytais : McSnh 
 
 11 tlic lioadiiiS (if 'liP 
 I to 1h' iili-iititicd, Imt 
 loiiuds. 'nuMicserip- 
 j;ivfli ill the fiinii '■• 
 lie ccrtilifatc of titW. 
 ('script ion of the lami 
 W M' i:<i\ s I'. K. 17 J; 
 ;ioii, till' land waiilaid 
 I, tlm lU'scril'tiuii was 
 : lb. 
 
 u' iM'titioii, appears t» 
 slioidd i-('(iuiiv a sutti- 
 by him diivcted to le 
 no siillicifiitly definite 
 ^'. or thf Ixiily of the 
 . Hcfori'f may rfq"!"" 
 ■diiiK with the invest:- 
 1 idbo reipiiretoberc- 
 1. (). c. \V^, s. (). 
 
 ■rest, claimed by the 
 .11, and also the estatt-9 
 h art' iiiteiidid to * 
 ■ he ordered to |iay the 
 ■lainis, not admitted m 
 
 ,e Schedule to the Act, 
 
 nav lie. It is iif'""'; 
 H'titioii, the facts ami 
 itfsi'ary, a concise stiite- 
 
 I.eUistry 
 Otllcc. 
 
 mciit of such facts as arc nccoKHary to make out tl'.c title, and which do not Rule 1013. 
 aplM'ar in the piodiici'd documciitM. is to lie delivered to the Referee, with the stutemi'iit 
 otiier docmueiits rt'ijiiired to ho furiii.shed under I!. S. (). c. II.'), s. 7, s-s. 4. .>( facts. 
 
 Fillnsf the Petition.- I 'iider K. S. (). c. 113, h. .0. the aiiplicatioi! in re([uired i''iliii(< 
 t(. In' made to the llijfh Court or a .liidtre thereof. Where the iietivion is tiled petition. 
 Ill the Chancery Division, it must lie tiled with I he ( 'lei k of Kt eord.-i and Writs. 
 If Hied in.'iiiy other Division, it should lie liled with the l{i'|,'i<tiar of the |)ivi- 
 aion. All |iroeeediiijfs under '/'/(< ijiiiitiini 'J'itlr« Art h.vve thus far lieeii taken 
 exclusively in thn(!lianeery Division. 
 
 Wliert^ the iiivestiKation of title is to lie proceeded Mitli Kefore a Local 
 Referee, the petition before lie iliy tiled, must lie entered with the Inspector of 
 Titles at Toronto : see /tiili' l(ll'.». 
 
 Registering: Petition. I'pon tiling' a petition under the Act, the otiicer with IteKintra- 
 whom it is tiled is to issue a certificate of its tiling' : see form |{..S. ()., p. 1((7S; lion of 
 wln-i is to he ref,'istered in the HeKistrv OHice of the KeKi^fnition Division, in petitioimin 
 which the lands in (piestion are situate : H. S. O. c. \]',\, s. (1. This cfrtifii^ate 
 need not lie re^fistered iniinediately on tile petition lieinj^ filed, hut its rej,'istra- 
 tioii may he deferred until it is sure whi'ther the certificate of title will lie 
 grunted. 
 
 Proofs Required on Investigation of Titles. The fidlowinj,' .'ire the pajiers 
 whicii it is necessary to deliver to the Keferee of Titles, to whom the petition 
 is referred, in all ordinary ea.se.s, and the proofs 1 to 1,") should lie delivered at 
 one time, not piece-meal. 
 
 1. The affidavit of the iietitioner, under the Htli section of Tlit Qitiilini/ Ti'tlis Aniilnvit of 
 AH. If the atlidavit is n<it made by the petitioner, some valid rca.son should putitiouer. 
 Ix' (,'iveii why it is not: AV Jtmiiltll. 4 Chy. Ch. 71. (For form, .see Leifffo'n 
 
 Fiirins, 2nd ed,. No. KiL'lt.) The scdiedide of docunieiits must be marked, as an 
 exhihit, hv the conimiHsioner before whom the atlidavit is sworn : liv Dickion, 3 
 Chy. Ch. '3.02. 
 
 X.I5. " None of the affidavits in support of the petition should be sworn until 
 the iK'tition has been tiled. 
 
 2. The ceititicate of counsel, or scdioitor, under the Oth section of Thr Quirt- Certificato 
 111;/ Tillrs Act. This certificate should not be dated prior totlie sweariii},'of the of counsol. 
 Iietitioiier's affidavit to which it relates. The certificate should fullow the 
 
 ]aiii,'iiai.'e of section '.I. A certificate of counsel that he had corresponded with 
 the iK'titioner was held in.suflicient : Jt'r Jtick.ioii, 3 Chy. Ch. 3r)2. 
 
 3. Tlio County Het,'istrar's certificate of all re),'istratio!is upon the land in Comity 
 nui'stion, iiji to, and incliidim,', the date of tiling of the jietition : /!< Hill, 2 l:e;;istrHr's 
 Chy. C'li. 34S. It is advisabh- that no further rej,'iJitr;itioiis should be niade --•I't'ti^"-'"- 
 upon the lot by the petiti<iiier iieiidiiiK the investigation. If any transfer by 
 
 way of inortj,'ai;e, or otiierwise, be made by the petitioner peiidiiij,' the investi- 
 gation, the Keferee <if Titles slioulil be iliiliii'diately notified thereof: nee lie 
 rimmiiii/s, X r. 1{. 473; l{r Mur/'r, S |'. \{. 475. 
 
 When there are a Ki'eat many reffistrations reci>r(le(l agivinst the lot, Imt not 
 affectiiij; the jiarticnlar jiarcul in ((Uestion, and the Kejfistrar cannot certify tlio.se 
 that do affect the land in (piestion without ineliidiii(j in his certilicat(^ those 
 that do not, his certiticaie may be dispensed with, on prodiudii^n of a proper 
 atfiilavit of search by a Provincial Land Surveyor ; / Momr S I'. R. 471"). 
 
 The alistract will have to be subse(pi<'ntly continued to the date of the certi- 
 ficate of title : /If Ciiiiimiini.i, H V. R. 473; and showiiif,' the registration of the 
 ceititicate of filing the petition : H. S. (). c. 113, s. (i, s-.s. 2. 
 
 ■I. All deeds and evidences of titli! in the iH'titi'iner'.s po.sgenHion or power : peods 
 se('K. .S. O. c. 113, s. 7, s-». 1. ' • 
 
 5. If the |i(titioner cannot jiroduce all tlu^ deeds relating to the land, under 
 whicli he derives title, he must procure and produce : — 
 
 M Certified cojiies of all registered instruments affecting the title, of which 
 the originals ant not priKlncetl, including discharged mortgages, and certified 
 Copies of all certificates of discharge of mortgages, and of the affidavits of 
 execution thereof. 
 
 
796 
 
 PROCREDINOS WITHOUT WRIT. 
 
 Rule 1013. 
 
 A(n<lavitn 
 of H(^iir(!h 
 for loHt 
 
 Proof of 
 oonttiiitH 
 wliero 
 
 IIICIIIOI'illlN 
 
 mil Kill))- 
 
 Cicllt fVl- 
 
 doiico. 
 
 Proof of 
 bar of 
 dower. 
 
 Adliliivits 
 an to |ii>s- 
 
 BUSHiOll. 
 
 ConBentB 
 renuirod. 
 
 SlieritT's 
 certiftcato 
 as to oxu- 
 cutioiiH. 
 
 County 
 TreaKurcr'H 
 cortifluati! 
 as to taxes. 
 
 Statement 
 of facts. 
 
 A ftTtitifatc <pf disclmrnc of niortira^'P lias not the effect (if rt'coiivfyiiij; tlw 
 estate until it in regiMtered ; Jlr Morm; H 1'. K. 47i"). 
 
 ('') .VffldavitH (if dilif^ent Heareli for tlio orif^'inalH of all deedn to wliiih tlii' 
 (!ertit'n'd eii|iieM of Mienioi'iiilM relate (where the Jueuiorial.M are net iiiiidi'siitticicnt 
 evidence liy I{. S. (). e. ll'J, s. 1, s-s. "J, U), and all otiier deeds relatiiii,' in 
 tne title which are not |iro(hieed. 
 
 ((•) I'roof of contents of the non-produced deeds, where the ineiiioriiilfi uiv ii.,i 
 Hutticient evidence thereof. Tliose of which there are nienioriais in tin ^luc 
 form in use before the Itetfistry Act of IMCi"), should lie shewn to liiiMcuntiiiiini 
 no trust, limitation, condition, exo jition. or (|u:dilication, not nii iilinncii iutlu 
 memorial, unless such memorials are under K. S. (). e. 112, widficicnt cviilwai 
 of the uonteiits of tlio deedn to which tliey relate. 
 
 (i. Tf there is no release of dower liy the wife of a fonnerowner, shew tlmtin' 
 was uinnarried when hf (vinveyed, or that his wife is dead, or that lierdimcri 
 liarred, or that the land is not sidiject to her dower ; see It. ,S, O. c. i;i3, s. X 
 otiierv ise the (;ertilicate of title must lie suliject to her dower. 
 
 7. .Mtidavits are re(|uire(l, shewing' thut jiossession has always MccniiiiMiiiiil 
 the titli' under which the |ietitioner claims; see A'/'/r 1((2H. .\1mi uttidavit- 
 shewini; who is. at tin time of niakinj,' such affidavits, in (ic(jn|iati(in, aiulmidir 
 what title, or claim of title. 'I'liese affidavits should shew how the imsstssidn 
 has lieen held, and sli<iuld lie made liy (lisintereste(l persons: see Lcltu'. 
 Forms, L'nd I'd., \o, lOICi. See further as to evidence of ]«issession rii|iiisiti': 
 Jtii/i lOl'a, note. 
 
 S. Ponsent of the person in actuid possession, (wherever any iiersen dtlicr 
 than petitioner i.s in occupation), duly verified liy affidavit. For fimn n! 
 con.sent .see Lejjgo's Forms, 'Jnd e(l., No. 1<IH7. 
 
 !). (Consent of any mortifajree, or person entitled, to any outstanding,' cliiiiv. 
 ((restate, did v verified liv afhdavit. For form of con.>'tiit see Leg^'o'i* Furiis. 
 lind ed., No. 'l(».'»7 ; and sri> /!r Ciinu-hill, H ('. L. ,1. 5(». 
 
 .\. I'). The consents meiitionecl in clauses Hand !• must Ik' iinidiictil cvci 
 though the petitioner admit that liis title is snliject to the li^ht of sucli tciiiiiit. 
 niort^aj,'ee, etc. In somecjises tlieconsi-nt nmst he produced liefore the jHtitini 
 will lie referred for examination : '.'/., when; the petitioner is a piin'liasci' win 
 has n<it olitained his conveyance, the consent nnist Im^ produced: llf llrniu'. 
 1$ Chy. ( 'h. loS ; or where he is tenant in I'einainder expectant <iu a life istiitc 
 the consent of the tenant for life nmst be tiled : Re I'ltliii, 8 1'. 1{. 470. 
 
 10. Sheriff's certificate tliat the nrojierty is not affected liy any exicuticni, 
 sale \Mider execution, or tax sale. (For form, see Le^tjfo's Forms, "Jnd cii., N". 
 !<•;{;{, omittiuK woi'd "in" in second line.) This certificate should imiiiil'' 
 the names of all persons who have owiu'il the land at anv time since ISliS : --i'' 
 111 llaolniiu ;{ »'liv. Oh. L'32; /.'«' ItiiiidH, 4 Chy. Ch. 71; /^.'- /'"''« ^''/-"S- 
 Chy. Ch. .sr)7. 
 
 11. County Treasurer's certificat(> that there are no taxes in arrear, nniltliat 
 there has lieen no sale for taxes, and that the roll of taxes in arrear has Urii 
 retiuMied to him. For form, see Leggo's Forms, 2nd ed., No. KIIL'. Pr<": 
 must he given of iiaymentof all taxes, exce|)t thoso for the year in wiiicli tli- 
 (!ertiti(.'ate issues, if the certificate first produced does not cover all such taxt-. 
 an additional certificate will lie re(iuire(l : see Id' ll(niliu<i, 3 Chy. Cli. -3'2; /■ 
 (■hiinihi-rhuii, 2Cliy. Ch. .sr)2. 
 
 X.H.— Certificates of title are always granted subject to the taxes fcir th'' 
 current year in which the certificate bears date : see 1{. H. (). 113, ss. 12, J'. 
 27. Whenever tht; roll of taxes in arrear for the preceding year has iiotljtj" 
 returned to the County Treasurer, his certificate must be HU]iplenieiit('d liV tl.'' 
 collector's, or town.ship treasurer's, rectiipt f(jr that year: see K. S. 0. IW 
 s. 14H. 
 
 12. A concise statement of any other facta necessary to make out the titu_; 
 and affidavits or other evidence to prove the same : R. S. ()., c. 113, s. i. 
 8-s. 4, 5. 
 
QUIETING TITLES. 
 
 797 
 
 t of rccoiivfying the 
 
 X.Ii. All atfiiliivits to prove fiKits inivtcriiil to tlio iM'titioiicr'H titlti, Hhoiild, 
 n/fiJ|. iiH|i(iMsil)li', 1)1' iiiiultt \>y <liHinti'n'stf(l piTMoiKt : AV jiniir t'ludiiliniiiiii, 2 
 (•liy. Ch. X>-2. 
 
 1') Sclii'dulc of the pllrticllllu■^ so pi'odiiwd to Imi iiiarkt'd iw iiii nxliibit to 
 thf'iH'titiniifi's iilHiliivit : Iti l)lcl:K.„i, 'A fliy. (Mi. 'AWl ; H. H. <). c. IIH, «. 4, 
 
 H-M. 7. 
 
 Crinvii lionds ri'ffi'^tcrcd in tlii« (^iifi'ii't Utiicli oHici' no Ioiik'T liiiid liinds 
 iinlptt 111''" ri'tfi^t'''"''"! '" ''"' l{<'h'i^t''V oIHim' : mcc 1{. S. O. c, !»4, s. .'{ : Kf 
 Fnniklin, f< I'. I{. 470, U\ Vii'f. c. Uli (I)). 
 
 Till' l!i'fi'rci''s cM'itiHi'iiti', idlowiiij,' <>i'(li-<ullou in;,'- tlir I'liiiiii of iiiiy con test imt, 
 ri'(|iiir('« CDiifiriiiHtion in the Hiinic munnir iis w, Miistcr'N rfpmt nmdi' in iin 
 aotiiiii, 
 
 Atti(lii\ its proving the piil)lii'iition, and p islinj,' of tlii'udv('i'ti--i'nii'nt n(|iiircd 
 iiMilcr The ijiiii-tiii'i Til/c .1'/, s. 14, >liiiuld shew that tlii' deponent has 
 (•\!iiiiiiu'il ii-iuesof tile papers in which the advertisement has lieen piililished ;and 
 ttl>i' that the notices have remained posted attheConrt House, and I'ost ( )ttiee, 
 (MiitiiiiKiiislv for one month; H'' ('/niiii/in/din, •_' ('h\-. Ch. 'X>'2 ; /'«• /////, /'', 
 34K. JMir forms of athdavits, see Tayh)ron 'I'ith's, L'nd ed., pp. I'oo, 'jol. 
 
 I0I4. Wlicro an application is made under section 2 of 
 the Siiid Act, the (!lerk of l{ec:)rds and AVrits is to attend 
 one of the Jiidj^es ^Yith the petition for directions, before 
 the same is referred for investij^ation. Cliy. O. 493. 
 
 Till' section of the Act referred to in this /tii.'i includes all applications 
 ixfcpt tlid.sc hy owners in fee-simple, or trustees for the sale of the fee-siin|)le. 
 
 Where the petitioner has merely a jiaitial interest, the C'oin-t usually recpiires 
 the eiiiiscnt of the other persons inlere>ted in the estate, to he tiled, liefore 
 niitlidriziiii: the petition to lie referred for iuvesti^iatiou. Thus, where a 
 ]iiiri'ha<er liefore convi'vance tiled a petitiim, the consent of his vendor was 
 i((|uiri(l : Jl' /!r'ii'ii, ',i ( 'hy. i'h. I'lH; and where the petitioner was a tenant in 
 rciuiuiiiler, the consent of the tenant of the iiarticular estate was re(piired : /'<• 
 Nkti, 8 1'. |{. 47l». 
 
 Tliecdnsent duly verified hy affidavit should lie attaclicd to the petition, 
 
 wiiMi limiight to lie tiled. 
 
 Rules 
 1014, 1010. 
 
 Sclioilnloof 
 
 iiartiuu- 
 
 iars. 
 
 AllldavltK 
 of pulilica- 
 tidu of 
 advertiHo- 
 mont. 
 
 Petitions 
 tci he re- 
 furreil to 
 .luil^e in 
 certain 
 cases ln)- 
 fdre bdiuK 
 iclt'rred 
 for iiivesti- 
 ^,•ation. 
 Where l)e- 
 iition»r has 
 only a par- 
 tial inter- 
 I'st. consent 
 of other 
 piuties in- 
 terested ro- 
 quirod. 
 
 §C. 
 
 ^ 
 
 1013. A petition under the Act may, at the option of J^.!^*'^||['{'_,*" 
 the petitioner, he referred to any of the otHcers of the Court bereforred. 
 lit Toronto, or to any conveyancinji; Counsel, who may from _ , ^ ^^ . 
 time to time he designated hy the Court for the purpose ; or ^ .?^^^^- 
 to any of the following Local Masters, viz., the Masters at 
 Barrie, Belleville, Berlin, ]Jrarapton, Biantford, Brockville, 
 Cliatliain, Cohourg, Cornwall, Goderich, Guelph, Hamilton, 
 Kingston, Lindsay, London, Ottawa, Owen Sound, Perth, 
 Peterborough, Sandwich, Sarina, Simcoe, Stratford, St. 
 Catherines, Walkerton, Whitby, and Woodstock ; or to any 
 other of the Local Masters who shall hereafter be desig- 
 nated. Chy. 0. 494. 
 
 Only the liocal Masters of the Supreme Court for Ontario, at the )>lficeH Local Mas- 
 abnve named, are rx nfficio Referees of Titles. Tlu<se Local Masters holding tcr not ci- 
 "ffice at other iilaces iire not entitled to exercise the duties of the Referee ojficioliole- 
 Pities nnlcsH sjjecially empowered so to do. Titles. 
 
 Where the iietitioner desires to have the jietition referred to any Local 
 Master a-s Referee of Titles, he mu.st designate the officer to whom he desires 
 
 ^ 
 
 J 4 7 
 
798 
 
 PROCEEDINGS WITHOUT WRIT. 
 
 Sules tlic rcfcri'iicc, hy iudoi'sciiKMit on tlio ((ctition : hvo liiilc 1017. If tlifre lie no 
 
 1016-1019, sucli iniloi'sciiii'iit tlio petition will ho riit't-iTi'd to the liefercu of Titleij at 
 Toronto : /.',■(/-■ lOlS. 
 
 Hi^fj'strar 
 
 to l)u 1(1- 
 
 BiiectDi- 
 
 /A/ 
 
 Inspector 
 
 of Titles to 
 1)0 ail- 
 poiu^ud. 
 
 Indorso- 
 luent on 
 petitiDn. 
 
 10M». The Registrar of the CI ancery Division is, until 
 further order, to be the sole Inspector of Titles, in respect 
 of petitions filed under The Qnitnin;/ Titles Art, imd sole 
 jieferee of any petitions, the proceedings under which are 
 to he conducted in Toronto. Chy. 0. 633. 
 
 The Insjicctor of Titles siiixM'viscm the work of all Local Referees ef Titles, 
 and lis Referee of Titles at Toronto he investijfiites titles referred to him for 
 invr.-itijviition : wee Jiiilc 4!H', <■/ nn/. 
 
 The fees iiayable to the Inspt^ctor of Titles are regulated hy Rule 1036. 
 
 10I7« To facilitate the proceedings in cases referred to 
 the Local Masters, one or more Inspectors of Titles will be 
 named by the Couit, for the purposes, and with the powers 
 mentioned in and provided for by the 28rd and 24th sections 
 of \he said Act ; and on the petition are to ho indorsed the 
 names of the Inspector, or one of the Inspectors, as the case 
 may be, and of the Local Master, thus : " To be referred to 
 the Master at , and to Mr. , Inspector of 
 
 Titles." Chy. 0. 495. 
 
 At i)resent thei-e is only one Insi)ectnr of Titles, and this officer is also the 
 Bile Referee of Titles at Toronto : see /{iile lOHi. 
 
 If there he no indorsement of the name of a Local Master, the iMjtition is to 
 he referred to the Referee :if Titles at Toronto : Hx/e 1018. 
 
 Only a Local Master who is also a Referee of Titles can ho named in the 
 indorsement. As to the Masters who may he named, see Jiiile 1015, 
 
 Where the |)etition is re(|uired to h(^ referred to a Lcwal Ma ,ter .is Referee, 
 it must, hefore heing tiled, he entered wit'\ the Inspector of Titles, and a fee of 
 ♦8 in stamps must \n: paid thereon : see Ilitlcn lOl'J, 103(). 
 
 rotuions,^^ lOl^i. Petitions filed unindorsed with the name of a 
 
 referred to Referee, are to be referred to the Referee in Toronto, or to 
 
 Befe"ee° oHG of the Rcferces in Toronto (if more than one), in rotation 
 
 or otherwise as the Court or a Judge from time to ii"ie 
 
 ^ _j. directs ; but a petition indorsed with the name of any 
 
 Referee is to be referred to him accordingly, unless the 
 
 Court or a Judge otherwise directs. Chy. 0. 496. 
 
 At present there is only one Referee at Toronto : see Jtnle lOlG. 
 
 fobc're-" 10l». Where the petitioner desires the reference to a 
 ferrea to Local Mastcr, the petition is to be entered with the Inspector 
 fereostobeof Titles heforo being filed as required by the Statute, and 
 Lmfwitii ^''e Inspector is to note thereon the day of entering the same, 
 Inspector, adding to such note his own initials, and is thereupon to 
 
QUIETING TITLES. 
 
 7!)9 
 
 deliver the petition to the solicitor, or,-if tlulv stampet^, to^^^^^ 
 the !ie^'istral^ to he filed. Chy. 0. 197. ' 1020-1023. 
 
 The woril " Ht'yistrar " in this /J(//c, iij>|M'ars to l)c a iTiistako ; tlic "Clerk 
 iif I'lCDi'ils iind Writs," ix tlm (itticcr witii whom the iM'titioii is hied in thi! 
 Ciiiuiwry Division: m:i: iJ"/''-v 23, 1021. » 
 
 1020. The Local j\Inster shall ho entitled to confer or i^<>cai jras- 
 correspond from time to time with the In-^jptctor of Titles, connli-'witu 
 lor advice and ass s>n,nce on question.^ of practice or '"'"i"^''''"- 
 evidence, or other questions arising undjr the Act or under 
 these Rules. Chy. O. 4<)8. 
 
 Tiiis A'"/'- is defectively priutwl in the official copy of the 7^//(>'. The above 
 is ita proper reading. 
 
 Certificate 
 of ttlint,' of 
 petition to 
 1)0 re(,'is- 
 torod. 
 
 1021. The Clerk of Records and Writs is to deliver to 
 the party filinjj; a petition under the Act, a certificate of the 
 filing thereof, for registration in the proper County ; and 
 thereupon the petition is forthwith to he referred and de- 
 livered or posted hy the Clerk of Records Jind Writs to the 
 Eeferee named for that purpoE'^. Chy. 0. 49U. 
 
 The form of the certificat(> referred to in tiiis /tiilr is given in R. S. O. ]). lO.W, 
 The certificate isrecpiired to he registered in the proper registry office: seeK.S.O. 
 c. ]13,s. (i. 
 
 Tiu' originals, or certified copies, of all instruments, registered prior to this 
 certificate are n'(juired to be protluced to the Referee : see Jb. s. 7, s.-ss. 1^ 2. 
 
 1022. The particulars necessary, under section 7 of the 
 Alt, to support the petition are to be delivered or sent by 
 the petitioner, or his solicitor, to the Referee, and are to be 
 forthwith examined and considered by him. Chy. 0. 500. 
 
 See further as to prcxjf n-qtiired, Rule 1013 note. 
 
 Oil deli'-ering the jiapers to the Referee a fee of fifty cents is to be paid on 
 each (Iced in tile chaiii of title, other than satisfied mortgages; and ten cents on 
 eacii paper filed : see Tariff. 
 
 Wliere the reference is to the Referee at Toronto the additional fee of $4 on 
 the certificate of title is also payahht : //*. ; but this fee is not payable where the 
 refL'ieiice is to a LiK3al Master tw Referee : see Itiih- 1030. 
 
 102tS. In every case of an investigation of the title to Evidence 
 property under the said Act, the petitioner is to shew, by tol'ossos-'" 
 affidavit or otherwise, whether possession has always accom- *"""• 
 panied the title under which he claims the property, or how 
 otherwise, or is to shew some sufticient reason for dispensing 
 with such proof either wholly or in part. Chy. 0. 501. 
 
 The question of |)ossession is always a very important one, and it is necessary Possession, 
 that the affidavits should shew how the possession lias been held, '■..'/. : whether evidence 
 b'- residence, ;,r by ciitivation, and by whom, if by tenants, giving their n.vnies "'* *"• 
 airi tlie |i"ri'i]s during which they occupied. Proof as to possession is iudis- 
 peiwable : y;,' IIV/.//(/, 2Chy. Ch. iiiw. 
 
 Papers in 
 support of 
 application 
 to l.>o de- 
 Uverod to 
 Keforce 
 and exam- 
 ine' by 
 liim. 
 
 Fees pay- 
 able. 
 
p 
 
 ;!Jf.'SfTJp-'"»^"»«iiiw»»«p— 7"! ■-#'-»"«.?'■ il-"'.i 
 
 
 Rules 
 1.024, 1026. 
 
 retitionor 
 orifiinally 
 etiteriiih' 
 aH a trcH- 
 imssor. 
 Possession 
 of part is 
 not con- 
 stvuutive 
 possession 
 of rist 
 of lot. 
 
 Flvidence 
 wlieve title 
 claimed 
 solely by 
 pousebsiou. 
 
 800 PROCEEDINGS WITHOUT WRIT. 
 
 Wlicre thu petitioner is a mere trespasser claiming to have ocqnirc^l title by 
 possession, the evidence us to po.s.session must be very clear and coneluHivcf, ami 
 It must !«■ HJiewn to lii:^'e aetnally extended to tile whole of the land daiineii. 
 The actual |>os.session of .some \mrt of a lot, or ]»arcel, of land hy a mere trcs 
 ))asser, will lie insuff ieiit to confer a title by possession, as to any otlier part i 
 which there has bi > n no actual )>os.session, even though the lot lie a wild lot; 
 IlitrriK v. Minlif, 7 Out. Ajip. 414. In order to confer a title under tiie Statutf 
 of Limitations there must bean actual and visil)le possession, niere iiavincnt of 
 taxes on a Viu;ant lot confers no title : lit Jn rvi.s v. ( 'tmhr, 2!t (ir. 'M\ ; WalUm v. 
 Till' W'KodMiirL- iiiLs Co., 1 Out. 030 ; but .see Slirr.s v. S/kui', 1 Ont. 2t). 
 
 In order to defeat a rightful owner's title, by adver.se i)osse.s.sioii, the posses- 
 sion must have l)een contii'uous for the re(|uired ninuber of years; whenever 
 the possession is vacant the rightful owner is in jio.s.session ii. conteniplatiuiidf 
 law; see 'J'riixt'fs Ai/i iici/ Co. v. Short, 13 A pp. Cas. T.Ki. 
 
 Where the petitioner claims title by i)o.ssession, he should prove the iMisse.ssioii 
 for the re(|uisite time, by the clear and positivi^ evidenire, of at least twD 
 independent witnesses. In such a case a notice, jirepared by tli(! Referee, 
 sliould be served upon the person having the jiaper title, if lie can be finind, liiit 
 if not, evidence of search for him and his representatives should b(^ put in, and 
 in such a case the possession should be shewn to have been long eiioiiffli tu liar 
 him, even though he had no notice of the possession : J{t' ('iinrliill, S ('. L.-l.TiO; 
 Ex jxirtr <Jh(iml/(r/(iiii, '2 ('hy. Ch. 352. Where the petitioner claims title as 
 against the patentee, or his heirs, or assigns, of land of which tliey liaveiiot 
 taken actual possession by residing on, or cultivating some portion iliereof, lie 
 II. eit shew either knowledgj- of his jiossession by the jiatentee, or his lieirs or 
 assigns, or <dse establish a iiossession for at least twenty years : 1%. S. (). c. 111, 
 8. 5, s.-s. 4 ; /!< Liiul, 3 Cliy. Ch. 23(1; liiiojir v. Dnh, 42 l'. ( '. <,». 1'.. L'.'id; Vmi- 
 Vdmr v. Ifi(iilisoti, 45 I'. (;. (^. H. 2.52 ; proof of n<itice to the hiisbaiid of tlii' 
 owner is siiliicient : Hurrix v. I'rrntixn, 30 (J. J'. 4<S4 ; X ( '. in Appeal, 7 Out, 
 App. 414. 
 
 It is not clear that it is necessary to establish so strict, and actual, a )iossessi(m 
 to all the land claimed, where the iietitioner has been in possession iiiwieraclaiin 
 of title which \\ at origiuidly defective. In such a case the doctrine of ((iiistnic- 
 five possession might, and would prob.ibly, be held to apply even as a^'aiiist tlif 
 <iwner of the pa|)er title : see Jtuiiihix v, Jdhiinldii, 24 l'. C (^. I>. iiM \ ihoi) v. 
 Hi ii'lirntiii, 2!l r. < ". *i. 15. 314 ; |ier liurton, .)., Iliwrix v. Muilii, 7 Ont. App. 
 ]). 425 ; Stiirn v. Shitii; 1 Out. 2(). 
 
 A person who has been in jjo.ssession under a fraudident grantee, but who has 
 not ac(|uired any title, as against the latter, (laniiot set up a title by iiossessiiiiia* 
 against a jiurchasi'i- of the laud, from the assignee in baid'iruptcy of the fraud- 
 ulent grantor, effected after tlio fraudulent conveyance has been set aside in 
 proci'edings instituted against both the fraudulent grantor and grantee. 
 I>/iiiiniin V. Hirhirt, 4 Ont, 035, 
 
 wiicro 10S4* Where there is no contest, the attendance of the 
 
 contest, at- petitioner, or of any solicitor on his behalf, is not to be 
 petiuoner'8 1'equired on the examination of the title, except where, for 
 disi'^ous' I ^^^y f^Pf -ial reason, the Referee directs such atleudance. 
 with. Chy. 0. 502. 
 
 Keforcoto 102»5. If, on sucli examination as aforesaid, the Referee 
 
 quislfions finds the proof of title defective, he is to deliver or mail to 
 
 tkiHR.''^'''^" t^'G petitioner, or to his solicitor or agent, a meiuorandiim 
 
 of such finding, stating shortly therein what the defects are, 
 
 and he is therein to state as far as possible all the objections 
 
 to the title. Chy. 0. 508. 
 
 When 
 
 actual pos- 
 Hession of 
 part may 
 confer title 
 to residue 
 of lot. 
 
'■m 
 
 e acquired title by 
 md uoiiulimivo, and 
 ' tlu' land dainiwl. 
 11(1 l)y a iiKTc trcs 
 t(i any other parti 
 I' lot l>e a wild Int; 
 e under tiie Stiitutc 
 n, mere iiaviiicnt (if 
 (ir. 3(i:<; ir«//»/(v. 
 . Ont. 2(J. 
 
 sKeHnioii, the posses- 
 of years; whenever 
 ill contein|iluti(inef 
 
 prove tiie lH)Ssession 
 e.e, of at least twu 
 ed l)y tii(( Keferec, 
 lie can lie fiiiili(i,liut 
 lould lie )iiit in, iiiid 
 I liin^ enough to liar 
 rrWi///, ><(\L..T.riO; 
 inner (.'laiiiis title as 
 rthieli they have not 
 e portion thereof, lie 
 litee, or his heirs or 
 ■ars: li. S. O.c.lll, 
 . ('. (^t. 15. 'S*\; I'roi- 
 tlie liiisliaiid of till- 
 '. ill Appeal, 7 Ont. 
 
 d actual, a iKLssession 
 session uiiileraelaiiii 
 
 doctrine (if cdiistnic- 
 y.even as a;,'aiiist tln' 
 !. (;. 1'.. iViO; i)(i'-i'\. 
 
 Mudi', 7 Out. A pp. 
 
 ^M'antee, lint who has 
 title I ly I losM'ssion as 
 
 ;ruiitey'of the fraiiil- 
 las lie'eii set aside in 
 
 •alitor aiifl graiit-i 
 
 ^tendance of tlie 
 ilf, is not to be 
 xcopt where, for 
 uch atlondaiice. 
 
 aid, the Referee 
 
 eliver or mail to 
 a meuiorandum 
 t the defects are, 
 all the objections 
 
 
 QUIETING TITLES. 
 
 10S6. When the lleferee finds that a good title is shewn, 
 ic iM to prepare the necessary advertisement, and the same 
 is to 1)6 puhlished in the Official Gazette and in any other 
 newspaper or newspapers in which the Referee thinks it 
 propel to have the same inserted ; and a copy of the adver- 
 tisement is also to he put up on the door of the Court House 
 of ti I iiiiity where the land lies, and, unless the nearest 
 Post Office is in a city, in some conspicuous place in the 
 Post Office which is situate nearest to the property, the title 
 of which is under investigation ; and the Referee is to indorse 
 
 till advertisement so prepared by him, the name of the 
 paper or newspapers in which the same is to be pub- 
 lished, and the number of insertions to be given therein 
 respectively, and the period (not less than 4 weeks) for which 
 the notice is to be continued at the Court House and Post 
 Office respectively. Chy. 0. 504. 
 
 Tlip ii'itiee is not to bo piibliHhed until the Referee finds that a good title is 
 shewn. 
 
 The notice is, ordinarily, rerimred to be jiublished once in the Ontarin Oozefte, 
 ami at h^ast once a week for two weeks in some local newspajier jniblishod in 
 the county town, or otln^r jiliwio near where the lands in question are situated ; 
 hilt in some eases it may bo found advisable to publish the adverti.iement mojf 
 frefiiieiitly. At least a month should lie (fiveii from the date o' the publication 
 III tlie fir.^t advertisement, for sending in claims. 
 
 7''(ir//i i>/ Adcerlisement, 
 IN THE HIGH COUT OF JUSTICK, 
 Division. 
 
 IN Till', .MATTKl'. OK 
 
 (Dexiriiilidii Ilf Liinil.) 
 N'otico is hereby given that A. IJ. i f has made an application ta 
 
 file High Court of . Justice for Ontario for a certificate of title to the above 
 ineiitioiied property undei' "The t^tiietiiif,' Titles Act," and has iir.Hluced 
 j'VKtence whereliy he apjiears to be the owner thereof in fee free from all incum- 
 hraiiiiMs : |i/ .1,111 \-»//Je.xcept [:/iriii;/ a n/fni i/i\irriiilij)ii n/' iticinn/inuircK In which 
 ly tllh' i.s siihji-it,] 
 
 Wlieiefoiv aiiv other jhtsoii having or pretending to have any title to or 
 mtiri'st III the said land or any part thereof, is r«iuired on or before 
 ''*>■'.''"■ ., day of , now next 
 
 ""Sillily. 1.1 Mv :, statement of claim, verified by 
 
 ittidavit, at my (,'liamliers. in Osgoode Hall, in the City of Toroiit(,, and ti> 
 
 801 
 
 Rule 1026. 
 
 Advertiso- 
 monts to be 
 published 
 in Gazette 
 and other 
 nowB- 
 papers. 
 
 Notices to 
 1)6 posted 
 at Court 
 House and 
 Post OtUce, 
 
 .Vdvertise- 
 luent, how 
 published 
 
 :^ 
 
 s''rvea eiipy <iii {iinmr niiil nililnss of jirlitinnii-x sulirilur) as solicitor for the 
 said .\. It., :i,i(| in defa>!lt every sueli claim will be barred, and the title of the 
 sjwl .\. 11. will lieuoine ab.solute and indefeasible at Law and in Kipiity, subject 
 
 .■ to the rescivatiniis mentioned in the L'dtli section of the said Act. 
 
 lateilthis day of IH 
 
 note IS iinide l.y the IJeferee at the foot, <ir indorsed, ^riving the necessary 
 etioiis for publication, e.i). 
 
 "Illy to the resci-vatinii 
 Hated this 
 
 A not 
 
 din 
 
 Ton,, inserted in the Ontario Uazeiie 
 •11" in [sUiliii;/ till HI ii:f paper); 
 ■ind a ropy to he affixed in a conspicuous place in the Court House of the 
 
 "inity III will,!, tiie land is situate and in the I'ost Office nearest the nreiui.ses 
 I'lr one month. ' 
 
 A. W, 
 
 Kki'khkk or TiTi.Ks. 
 
 ' on tl 
 
 <lav of 
 
 i,K, 
 
 51 
 
802 
 
 PROCEIEDINOS WITHOUT WRIT. 
 
 Notice how 
 liublishcd. 
 
 Aflldavits 
 jiroviiiK 
 publica- 
 tion. 
 
 Notices re- 
 quired to 
 bo served. 
 
 Rule 1027. The atlvf-rtiscincnt is principally iuttiiult'cl for jxtsohh, if any, wIkw riglits 
 are 7i<)t tliscloswl on tin; prixieedmg.s. Persons who arc Icnown to have any 
 claim aflvt'rse to the petitioner, or iwrsons who possibly may iiavesiunc iuIvitsc 
 claim, siionld generally be recpiircd to be served witii notice of the procewlinifs' 
 seeK. S. O. c.ll3, ss.Ki-Ln. 
 
 Th(! notices retpiired to be jMwted at the Court House, and Post ( )tfiw, slunild 
 Ih! kept lip continuously for tiie period directed, and tiie person intendiii),' to 
 prove tiie iiostinj,' up, siiould take care to see that siu^li notices arc kept u|i 
 continuously for the re(piisite i)eriod /^' /////, 2 Chy. (,'h. 'MH; Ilr r/minUiiKhi, 
 2 ("hy. Cii. ,'{52. For form of aflichivits of ixistiiif,', and of pul)hciitioii nt 
 advertisements ; .see Taylor on Titles, 2n(l ed., pp. 2(M», 2((1. 
 
 Where tlie lands are situate in a city, posting of a notice at tiie Post Otfice is 
 not retpiired. 
 
 \yiiere an advertisement was |>osted at the C!ourt House nearest tiip lands, 
 which was not the ('onrt House of tiie County in wiiich tiie lands witc .'<ituatc. 
 tile irrejrularity was waived liy the Judge: A'c llnnis, 12 1'. \\. \'M^\ aiul sci' 
 It. S. (). c. lis; ss. 4!"), 4(). 
 
 I037* Any notice of the iipplication to be served or 
 mailed under section 10 of the Act, is to be prepared by the 
 lleferee ; and directions are in hke manner, to be givon by 
 him as to the persons to be served with the notici.', tiud as to 
 the mode of serving tlie same. Chy. 0. ;)05. 
 
 The Kith .section of tii<! Act is as follows : — 
 
 " 1(>. - In case tliere apiwars to exist any claim adverse to, or i!iciiiisist('iit 
 witii, tliat of tiie i)etitioner to, or in respect of, any part of tlie l.'iiid, tln'.lii<l|,'(i 
 shall dii'<'ct such notice as he (hu'ins neces.sary to be mailed to, or served nil, the 
 adverse claimant, his agent or solicitor." 
 
 l?y section 23, the Heferee of Titles, to whom any petition i> refenvd, is t" 
 proceed as tiie .liidge should do under the Act, iiad tile refeiciiee not Ih'iIi 
 made, and he is to have the same ])owers. 
 
 Notice should be rerpiired to be served on every person known toliaviii 
 claim adverse to the petitioner, whether the claim be admitted liy tiiepctitimiir 
 or not, unless tlu' consent of such person be tiled, duly veri(ie(i, eoii-^riiting tiiii 
 certificate of title iM-ing granted to tlie petitioner, free from, or siiliject to, tlie 
 claim, if any, of such consenting l>arty, and, if subject to his claiiii, scttiiii! 
 forth with clearness what his claim is. The notice to be served should contain 
 explicit iiifonnation why it is served : E.r imvlc Hill, 2 Chy. Cii. IMS. 
 
 Notice is also often required to be served for tlie saki^ of precaution, thus 
 where an aiinlicatioli was made before TUv Ihi-nliilinn nj /■>/<'/'■< .b' I'.' 
 devisees within a y<'ar of the <leatli of their testator, notice was re(|uiri'(l to In' 
 served on the lieirs-at-law, as the ju'tition was, in etfect, a procecdiiifr to 
 establish the will; hl.r piu'lf Ili/I, 2 Cliv. Ch. .'WH ; and see Jir /)n,i:ilieri;„i 
 Chy. Ch. HO. 
 
 When title is claimed by possession, notice should ordin.iriiy iK'siM-veduiion 
 the persons who, liut forsuch possession, would be tliei)wn<Ts : /!i Chiniilnrhtiv- 
 2 Chy. Ch. 'A'yl. So also where the petitioner claimed the iiorth-'vf.s^ part of ;i 
 lot under a will devising the north-m.*^ part alleging that the word "west «•''* 
 a clerical error, all pi^rsons interested in i laintaiiiing the oi)iiosite view were 
 required to be notified : Ex parte Li/on.i, 2 Chy. Ch. ;i.")7. 
 
 Where a petitioner claim.s title under a will in which tiie land has been mis- 
 described, his titlt; may t)e quit^ted in any cose in which the Court \yotil(l m,'"' 
 action for the construction of the will deU'rmine that the land in (pieMi™' 
 l)asse(l bv th(! will as claimed l)V the jH'titiomT, notwithstanding the erroneous 
 dcicrijition : sro lie Callwihan, 8 l\ U. 474 ; /t" Hhuver, (> Out. 312 ; l)iit where 
 
 .\ilvcrs(' 
 claimant 
 to be noti 
 tied. 
 
 When title 
 claimed by 
 piissession, 
 owner of 
 pai)er title 
 to be 
 served. 
 
QUIETING TITLES. 
 
 803 
 
 any, wIk we rights 
 iiowu to liivve any 
 
 havcsdiiic iulveri'i! 
 >f the in'iiocediiigs: 
 
 I'ost Ottici', should 
 KTHDll iutriuliiij,' tl) 
 lotiocs iiri' kt'iit up 
 H; Hi' ' 'liiiiiil,irliiii(, 
 <if imliliciitimi (if 
 
 it the I'dst Office is 
 
 I- iiciivt'st till' hinds, 
 
 ' luiiils were situate. 
 
 1'. K. WM iiiulscc 
 
 3 be served or 
 
 )vepareil by the 
 
 to be {^ivun by 
 
 lotice, iiiulasto 
 
 c to, (Pi- inciiiisistMit 
 F tlif land, tlicludt,'*' 
 1 to, or served I lU, the 
 
 ;ion i- referred, i- 1" 
 B refcrcnee net U'eii 
 
 kdii known til lmve;i 
 tted iiV tlie|ietiti(ilier 
 ■ilie(l,'eon-eiltingtiiu 
 mi, or sidiject t(i, the 
 to liis (diuiii, setting 
 serv.'d should cnntiim 
 ,y. Ch. ;i4s. 
 
 . of i)reeiUltloli, thus, 
 ,„ ,,, K^M''^ -I'' I'.' 
 ice was re(iun'ed tdl"' 
 feet, a iiroceeilinp tii 
 
 |i„.inlv (unserved up"!. 
 i,(.rs:A'e'V-i'w/-fr/«i», 
 
 ;l,en.irtli-''/.'<'pa'V''" 
 t the word" w<''<t «^ 
 he .ipiiosit.) view were 
 
 th.> land lia« I'f,".™'"; 
 theCourtwduldinan 
 
 t the land n. .fuesti 
 .standing tlH;«Ton« 
 0()nt.312;lmt«l'<T'' 
 
 Petitioner 
 may l)o re- 
 (juirod to 
 Hivo iioga- 
 tivo ovi- 
 denco. 
 
 Or explain 
 
 circuni- 
 
 Htances 
 
 creating; 
 
 susiiicion. 
 
 the defect is in a deed inter fiartrx tin; petitiotmr muxt bring an action to rofonn Rule 1027. 
 tlie deed, lie cannot (^ct the defect cun d under Thv Quictin;/ 'I'ltlin Act : nee lir 
 <;,ilh;ih,iii, K ]'. H. 474. 
 
 Parol evidence was held to 1h! adnii.sHilile to show that "Lot ICt, Con. 7, N. H." 
 in a will meant " Ncrtli half of Lot Ki, 7th Concession, Townsliip of Morris "' : 
 Yiiiinii V. /'iirriK, 11 (Jnt. .'J!>7 ; l>nt wliere a description in a will is free from 
 any patent anihi^'nity it would seem tiiat parol evidence is inadmissilile tosho\v 
 that it means anything else than wliat is expressed: tSuiiiiiurK v. SiiitiinrrK, '> 
 Ont. 110; Hirkiil v. Stover, 11 Out. 10(i. lint where there is a general devise 
 (if all tlie testator's land, followed by a particular erroneovis description, the 
 latter may be n^jected : Wriijht v. ('nf/ins, 10 Out. 182. 
 
 I'mceedings tinder The (juietiiitj Titles Jet being for the most part *'■'■ /iKrle, it 
 indfteii necessary to require the ]K'titioner to negative the existence of facts, of 
 which, ill the case of a contest between the petitioner and any third |«'r.son, the 
 imuH iif proving would tje on stich tiiird party : Jie I 'ncerliill, .S C. L. .1. 50. 
 
 Where any transfer of the [miperty has taken place, under circumstances of 
 an uimsual nature, it is necessarj' to nupiire the iietitionor to adduce evidence 
 to negative the existence of any fraud, or want of /mud Jii/e.\ .• Re Jtnnnherti/, 4 
 Cliy. Cli. SO. Where, for instance, the property is claimed by, or <in behalf of, 
 a wife, under a convevance niiwie to her during coverture, an explanation of the 
 transaction should be given on oatii to siiow that it wnn Ijimi't , title, and was 
 such, that the husl)and's creditors could have no (daim to the property, and the 
 affidavit of the |)etitioner should be corroborated by disinterested persons of 
 crediliility : A'"' jiiirte Lf/oiin, 2 Ciiy. Ch. 3.')7. So wiiere tiie former owner, a 
 |ierscm of till' saints name as the petitioner, had c<iiiveyed the land to the 
 |ietitimier a few days before the tiling of tile petition, and the title appeared 
 simple, exphinatioiis were re(iuired to be given ; /li W'rii/lit, 2 (Jiiy. Ch. ,'{55. 
 
 And, in addition, notice must also be recpiired to be served on persons who 
 may appear to have a possilile interest in <iisputiiig tlie liniui Jitlex of ;iny con- 
 veyanee under which the petitioner claims, wherever there are any circum- 
 stances calculated to arouse suspicion : Jle JJhuijIh rtii, 4 Chy. Ch. MO. 
 
 N'litices reipiired by the Keferee, to b(f served, are to be pre|)ared atid issued 
 by him. Where service is directed to be effected by mailing, the Referee may 
 direct the letter enclosing the notice, to be prepaid .and registered, and a 
 ncitice to be indorsed oi' th" envelope to the effect that if the letter be not ' 
 called for within eight d .ys that it is to lie returned to the Referee of Titles, by 
 whiiii) the notice is issu >('. directions to return letters, if not c:illed for, are 
 re(piired by the Post <Jh\C(f atithorities, to be printed, in oriUr to secure due 
 attention. 
 
 W'hi'i'e a notice, ser.ed iii this way, is returned to the Referee of Titles, he 
 should reipiire further servi ;e. Where service is aiithorisi <l on the attorney, 
 solicitor, or agent or the party to be notified, there should be evi<leiice 
 produced that the person .served was in fact the solicitor, attorney, or agent of 
 the iiarty re(piired to be notified. 
 
 Form of notice to persons nppenrin'j to have adverse i)itcreits. 
 IN THE lilCH COURT OF JUSTICE, 
 
 DlVI.SION. 
 
 IN THE MATTKIl OK 
 
 Take notice that A. B., of 
 
 has made application to the 
 High Court of .Justice for Ontario for a certificate of his title to the above 
 Mtioned property under "The' (Quieting Titles Act," and take notice that 
 if you claim any interest therein, {if the petitioner admits the part}/ notifieil has 
 Mac interest siiii) other than (specif ninii interest which is admitted) you must 
 ''^?6 your claim in writing, stating the partioularH thereof, and verifie<l by 
 ™davit, at my Chambers in [OsgfMxle Hall, in the City of Toronto,] on or 
 wfore the day of and serve a 
 
 Service of 
 notices, 
 liow 
 offocted. 
 
 3^ 
 
 % 
 
 ^ 
 
 HI 
 
804 
 
 Rules 
 1028, 1029 
 
 I 'roof of 
 tiervice. 
 
 Abjudica- 
 tion on 
 riaim of 
 contestant. 
 
 Referee 
 nifty awiird 
 
 COStH. 
 
 Konn of 
 report. 
 
 PROCEEDINGS WITHOUT WRIT. 
 
 <!()|iy on {ixnnr iiiid addrrxH iif piiit inner x mUritov) iw Kolicitor for jhc said 
 A. B., and in riofault thcrt'of, any claim, rifflit, or inture.st, you iniiy li;ivc ilirreiii 
 at Law or in Kijuity, will Ik^ for I'vcr l)arrc(l and c.xtin^'uiHiifd. 
 
 Tlii.s noticn is Horvcfl upon you liccausc (.tHouthriiJhi tlic nnsnn/nr iiii-.ni thf 
 iwtict). 
 
 Dated thin day of IS 
 
 A. I?., 
 
 J{cfl I'll of TitllH. 
 
 Stri(^t ))roof is roquired to ho j;iv('n of the due service of all n<pti((s ri'quinti 
 t<p he served. The entries of servi<!e in a <leeeased solicitor's docket ucrt^ held 
 insuftiiient proof : AV /mrtr I'lihiur, 2 f'liy. i'\\. ',\'t\. VVln^n a certiticato wis 
 prranle(i on a false aliiiiavit of tlie due service of a notice, tiu^ (M'rtitic4it*i wjw 
 set aside on the ap)>lication of the party directed to ite notitie<l, \\ ith costs ; tho 
 Coiirl refusinjf ti) enter into the (piestion wheth(^r \w was prope-ly eiititkfd to 
 notice or not : Mr Anhfiinl, I! (*hy. ("ii. 77. 
 
 Where tliere is a contest, the Heferee may, hy consent, report on the con- 
 tdstants' claim l)i'for(Mlis|)iisin>c of t\\v ix'titioner's title; Init he should not do 
 so, without consent. In ^felleral, the pititiouer is hound, in the tirst phico, to 
 make out his own title hefore he can (tlaini to have an adjudication npnii tlic 
 daiui of a contestant : A'r i 'innrrnii, 14 ( Jr. (')12. .\nd a contestant is at liberty 
 to point out defects in the )),'titioiier"s title. In-fore proceedin(,' to prove his 
 own : Armniir v. Smitli, l(J(ir. .SKO. 
 
 The Kefert^e of Titles nuiv award costn to. or a^rainst, a petitioner, or con- 
 testant : K. S. (). c. 1i:j, ss'. L'l, 2;<: A'"/'.N- 117". 117H: Anon, -2 Cliy. Ch. 22. 
 When a |M'titioner claims title hy ])oss4's-:ion and thi' holder of the paper titleon 
 heinj; notified appears and contests the matter, costs will not !»■ awanied ajfainst 
 him as a matter of c.iurse, even though the petitioner succeed in eslaiilisliing 
 his titl-! : Low v. Mdrrinoii, 14 (ir. I!t2. 
 
 The order, or certificate of the Heferee shoidd he drawn \ip in similar t<'rni3 
 to a n^|)ort— f.f/., "1 find and certify,'" and not "adjudge and determim'": 
 Anon, '2 Chy. Ch. 22. 
 
 Inspector 
 ftndTo- 
 
 lOtiH. The Inspector, or Toronco lieferee, is from time 
 " He- to time to confer with one of the Judges in respect of mat- 
 iierv, ;ii ters befovt! such Inspector or Toronto lieferee, as there .shall 
 be occasion. Chv. (). (50(5. 
 
 I'OI 
 
 Judges. 
 
 \('hou title 
 n.nde out 
 heforo 
 Local Kc- 
 fereo. iio i.-^ 
 to (uu'tify 
 k^amo and 
 forward 
 papers to 
 Inspector 
 
 Outy of 
 Insjiector. 
 
 lOtSII. When any person has shown liiraself, in the 
 opinion of a Local Master, to he entitled to a certilicate or 
 conveyance under the Act, and has published and jj;ivcu all 
 the notices required, the Master is to write at the foot of the 
 petition, and sign, a memorandum to the following effect: 
 " I am of opinion that the petitioner is entitled to a certifi- 
 cate of title {or conveyance) as prayed " (or Hulijcct to ihr 
 following incumbrances, etc., us the case mail he); and is to 
 transmit the petition (if by mail, tlie postage being iJiepaid,) 
 with (he deeds, evidence, and other pai)ers before liim in 
 reference thereto, to the Inspector of Titles with wliom the 
 petition was entered ; and the Inspector is to exainiiu' the 
 same carefully, and should he find any defect in the evitlenee 
 • if title, or in the proceedings, he is, by correspondence or 
 
s;oi«j 
 
 QUIKTING TITIiES. 
 
 805 
 
 W(i III III Titlis. 
 
 A) exauiuu' 
 
 otherwise, to point the same out to the petitioner, or his 
 solicitor, or to the Master, as the case may he, in order that 
 the defect raay he remedied hefore a Judge is attended with 
 the petition and papers for approval. Chy. 0. 507. 
 
 It will !)(' seen from this /fc/-' tlint tlit^ tiiiiliiifj^ of a LdciiI Kufcrtic of TitleH is 
 iii)t uoiicliisivi', l)iittliat it is tlm duty of tlm liiiipcctor of Titles to ('xainiiit* the 
 proo't'iliiiKs, 1111(1 to ri'(|uii'(' any defects in the proofs to Im^ supplied. When 
 the lii-'pfc'tor finds the |)r(KU'edin)^s defective, he either triinsniits the papers to 
 the llefei'ce, with a note of the(lefei:ts, or, where they are few, and of tritlin^' 
 clianicter. he e )nnnunicates directly with the solicitor of the petitioner. 
 
 Wiicre there has heenany contest before a Referee of Titles, he should before 
 ciTtifyiiiK in favour of the petitioner, and transnntting the papers to the 
 1 iiH|)»'ct I ir, dispose of the claim of the contestant. The order or report of the 
 
 H(!ft>r >n tiie claim of a contestant should be lileil and contirmeil, in tlie same 
 
 manner as a .Master's report in an action, before a certificate of title is^jranted 
 t() t'le |ietitiouer : lliilix H4, HIM. 
 
 .\n appeal wijl lie from the order, report, or certificate, of a Uefpree of Titles, 
 or fiispector ot Titles, to a J\i(li,'e in ('ourt in the same manner as an a])|)eal 
 from iU-t']«)rt made in an action : Rii/'' W.\') ; seven clear days' ii )tice of appeal 
 must I).' 1,'iven to tiie re-ipond(nit : .see /iiilr/< lOHo, S4.S-H."iO. 
 
 .V(vintestant wlio succeeds in establishing,' an adverse claim, cannot ol)tain a 
 certificate of title in the proceedings in which he is contestant, l)Ut he may 
 himself file a I tition, and on such petition, he would l)e entitled tou.se the 
 wvidi'iice taken in the matter in which he was contuHtant : Jii' Itinihuin, S 
 I'. H. Ali. 
 
 KKtO. When the Inspector, or other lieferee (not being 
 a Local Master,) finds that the petitioner has shewn himself 
 entitled to a certificate of title, or a conveyance under the 
 Act, and has published and given all the notices required, 
 the Inspector, or Eeferee, (not being a Local Master,) is to 
 write at the foot of the petition, and sign a memorandum to 
 the same eftect as is required from a Local Master, and i^ 
 to prepare the certificate of title, or conveyance, and is to 
 engross the same in duplicate, one being on parchment or 
 parchment paper ; a,nd is to sign the same respectively at 
 the foot or in the margin thereof ; and is to attend one of 
 the Judges therewith, and with the deeds, evidence, and 
 other papers before him in reference thereto ; and on the 
 certificate or conveyance being signed by the Judge, the 
 Inspector or other Keferee aforesaid, as the case may be, is 
 to procure the same to be signed by the Registrar, ami 
 registered; and the Clerk of Kecords and Writs is to deliver 
 or transmit the same when so signed or registered, to the 
 petitioner, his solicitor, or agent, for registration in the 
 proper County. Chy. 0. 508. 
 
 ■\ Ij<k!ii1 Referee to whom a petition is referred, is not to prepare the certifi- 
 
 filtt) of title. 
 
 TliH Inspector of Titles -or th(^ Jieferee of Titles, at Toronto, where the 
 IKitition is referred to him an? the only otticurs authorized to prep.ire certifi- 
 cates of till", issued under the .\ct. 
 
 Rule 1030. 
 
 Kindini^ of 
 liOCUl Ito- 
 feroo not 
 conclusive. 
 
 Appeal 
 from In- 
 spector, or 
 Heferee of 
 Titles. 
 
 \\ hen title 
 is made out 
 to satisfac- 
 tion of In- 
 spector or 
 Toronto 
 Iteferee, he 
 iH to certify 
 same: an(t 
 to prepare 
 certificate 
 ot Title. 
 Certificate 
 to be en- 
 fjrosHed in 
 duplicate. 
 
 Si(,'ned by 
 Judge, In- 
 spector, or 
 Toronto 
 Heferee 
 and HeRis- 
 trar. 
 
 Certificate 
 of Title, by 
 whom pre- 
 pared. 
 
 ^ 
 
 
if^^ 
 
 806 PRCCEEDING8 WITHOUT WRIT. 
 
 Rules This Rulf rcnuircs the certificate to he eiigrossed hy tlie office v in'e)iiiiiiif,'it ; 
 
 1031-1034. the oliject of the liuli heiii^r, to insure the certificjites iM'ilij; eiiu'russcd in ;, 
 
 Engross- proper iiiaiiiier; l)iit for Hoinetinie past, fiie practice has iK-eii for tiie|M'titi(iiier. 
 
 ineiitiif or ii is solicitor, to procure tiie eiij,'r<)ssnients to ht^ iiiade mi printed iiei«liiig>, 
 
 certiticiito. sujiplied fur tiie purpose liy tlie hiw stationers. 
 
 Tiieeiiprrossiiient should he well and careftdly made, without usinjr fi(»\irc(i nr 
 ahl)r(n'iations, as the Judges refuse to siirn certificates euj^'rossed in a caivk-ss 
 and slovenly manner. 
 Fees on. Where the petition is referred ton Local Ueferee, no feV is payahlc on tlii' 
 
 certificate of title, except the fees for entry; the fee of .''<H, piiXiilile t(i the 
 Inspector, lieinir in full of all fees : Huh M)'M\. Where the petilion is nfcrriid 
 to the Ueferee of Titles at Tc'ronto, a fee of .'«!4 is payalile on the (litilicatc uf 
 title, in addition to tlie fees foi' entry : see Tariff. 
 
 lOSil. When a ccrtiticate of title or conveyance tinder 
 the Act has been granted, the Inspector or Keferee may, 
 without further order, dehver, on demand, to the party 
 entitled thereto, or his solicitor, all deeds and otiier 
 evidences of title, not including atltidavits made, and 
 evidence given in the matter of the title; and is to take bis 
 receipt therefor. Chy. 0. 50{). 
 
 Under this Ruli it lia.s heen the ])ractice to return only original deeds ,ind 
 documents of title, hut not certified copies, thesn are retained hy the Iiis|iw;tor 
 of Titles, with the other paiiers in the matter. 
 
 After cor- 
 titii;iite of 
 title tjrant- 
 eil, Title 
 Deoils may 
 bo deliv- 
 nrei\ up 
 wltliout 
 order on 
 rocoij)t be- 
 ing given. 
 
 Original 
 deeds, only 
 returned to 
 Iietitionor 
 
 ters. 
 
 luspoctor 1033. Everv Inspector and other Toronto Refei-oe is to 
 
 or Toronto • i . ,> n i • i ii 
 
 Referee to keep a uooK, and to preserve therein a copy or all liis letters 
 of aiViet-"'"^ under these Rules, and is to in'epare monthly, for the infor- 
 mation of the profession, a memorandum of points of 
 practice decided in matters under the Act. Chy. O.510. 
 
 Points of iimctice decided under the Act, are hrouffht to the attention of 
 the official reiiorter, and hy him published in the authorized reports from tiinp 
 to time. 
 
 Applicant 
 to pay all 
 postage, 
 etc. 
 
 Proceed- 
 ings under. 
 1k>w con- 
 ducted, and 
 fees there- 
 for. 
 
 Declara- 
 tions of 
 legitimacy, 
 etc. 
 
 103S. The applicant or his solicitor is to pay, or pr(pay, 
 as the case may be, all postages and other expenses of 
 transmitting letters or papers. Chy. 0. 515. 
 
 10:^4. Petitions under section 33 of the Act are to be 
 tiled and proceeded with in the same manner (as nearly tis 
 may be) as petitions for an indefeasible title ; and the fees 
 of officers, solicitors, and counsel, are to be the same as in 
 respect of the like proceedings in suits. Chy. 0. 516. 
 
 The 33rd sectif^n of the Act, alx)ve referred to is as follows : — 
 " 33. In case any ]ierson domiciled in Ontario, or daimini; iiny real estate m 
 Ontario, desires to establisii, not his title to some specific) if oevty. hut piieriilly 
 tliat he is thelefj^itiniate child of liis parents, or that the marriajre of hi< father 
 and motlier, or of liis grandfather and grandmother, was a valid iiiiirria^e, or 
 that his own marriage was a valid marriagi', or that he is the lieir. nr uiicof 
 the co-heirs of any per.son deceased, or that he is a natural horn subject i^f Hfr 
 Majesty, he tnay, if the said Court thinks fit, have any of the .said uiatters 
 judicially investigated and declared." 
 
CONTROVERTED MUNICIPAL ELECTIONS. 
 
 807 
 
 Uiulor tlif TiniH'riivl Statute, 21 k 22 Viot. c. !I3, it lia» Ix'cn hold that a Rules. 
 pi'titidiifi- ca'.nuit obtain a declaration of the legitimacy of his grandfather : 103S-1038. 
 Ih'lils V. Alt rm-ii-deucml, 42 L. T. N. S. 402. 
 
 Appeals 
 from lie- 
 foree and 
 Ijocal Mas- 
 tors, under 
 Q. T. Act. 
 
 From Mas- 
 ters. 
 
 ]0:{5. Appeals from the Toronto Referees, Referee or 
 Local Masters and others when they are acting under the 
 said Act, are to be prosecuted in the same way as appeals 
 from a ^faster. Chy. 0. 591. 
 
 Tills RiiU', it is presumed, also governs a|>|)eals from the Tnsix'ctor of Titlen, 
 altliimt,'ii lie is not expressly nani''d. Appeals from a Ma.ster may hejirosecuted 
 ill tH'ii Wiiys: iipp"als from Masters' reports, and certificates, iieing governed 
 hy /i'"''> I^IS. ,s;)(); and a;)peals from Masters wiieii acting in Ohamliers i)eing 
 niivt'iiitd liy liiih' HItl ; it is prolial)ly intended that appeals from Masters wiien 
 iii'tiiif!; MiiiliT Till- (^>iiii'/iiri Tilli's Afl shall lie had in the same manneras appeals 
 from i'i'|Hirts, anil such appeals are therefore U) be pro.secutt'd as directed by 
 ///'/•vStS-.")!). , , , , , 
 
 10»«. 'iiie fee of the Inspector of Titles on entering F';,''^ij;^,>j„. 
 the petition with him shall be $8, and no further fee is to sj'cctor of 
 be paid him for coricspondence, examination of the title, 
 drawing and engrossing certificate or conveyance, or for 
 any other matter or thing done under the petition. Chy. 
 0.' 514. 
 
 1037. The fees of solicitors and counsel, and the fees ^pea^to^^ 
 payable by stamps, for proceedings under the said Act, andcoun- 
 are respectivelv, to be the same as for like proceedings in ^"'* 
 suits. Chy. 6. 511. 
 
 Tills /,'/'/i seems somewhat ine insistent with tlie Tariff, which prescribes the 
 fii's Mb ' paid to Referees of Title, some of which differ from tliose payable for 
 the like pnH'ecdingH in suits. I'ossibly the /^(//c may be construed so far as it 
 relates to dislmrsements, ,as if it n-ad, "where no other fee is expressly 
 pivscrihel by tlie 'I'aritf, tlie fees payable to Referees of Titles shall be the 
 sumo as for like proceedintrs in suits."' 
 
 8. Controverted Municipal Elections. 
 
 lOifiH. Proceedings in the nature of quo irarranto under P'oceed- 
 The Municipal Act shall be by motion on leave obtained motion. 
 from the Court or a Judge. Upon the application for leave ^j^'J|^.*^J^^® 
 to serve a notice of motion, then upon the Court or a 
 •Tudge finding sufficient ground for giving the notice, and 
 upon such security being given as the Act requires and the 
 sutliciency thereof being allowed, the Court or Judge shall 
 }^ive ajint for leave to serve the notice of motion. 
 
 The iiriiteihue ])rescr'be 1 bv these W/'^'s is not in accordance with that pre- 
 scrilieil by I'hr Mioiicipnl Art, (H. H. O. c. 184), s. IHS, which directs that a 
 writ (if suninions in the nature of a (/mo ((voT^nf/o .shall be issued ; but by sec. 
 -"W, the .fudges of the High Court are empowered to make i?(//('.i "respecting 
 the iiractico generally " ; the provisions of these Rules, therefore, supersede the 
 
808 
 
 Role 1038. 
 
 Relator— 
 who iBay 
 be. 
 
 Candidate 
 —defini- 
 tion of. 
 
 One whose 
 nomina- 
 tion pre- 
 vented, 
 may pro- 
 test elec- 
 tion. 
 
 Electors— 
 who quali- 
 fied to be. 
 
 Elector 
 when 
 estopped 
 from dis- 
 puting vaii 
 dityofelec 
 tion. 
 
 No contest 
 allowed 
 where the 
 electic. is 
 by accla- 
 mation. 
 
 PB0CEBDINO8 WITHOUT WRIT. 
 
 practice prescrilKidby the Statute : sec .WVict. c. 8, h. ?, (O); 51 Vict. r. 2, h. 4,(0). 
 riie upplicntion niu.st bo niiwle in th»' name of the Hovcreif^ti upon the relati(m 
 of some [H-rson (pialitittcl to hv a relator. 
 
 The Relator. Thf relator iH the jxtsou »]Hm whoHO application the juris- 
 diction of the Court is put in motion. 
 
 Under " Thr Mitniripal Art," (K. S. (). c. 1S1), -.. 187, mi/i miiiiiriiml rkclnr 
 in the cnitnti/ may U' the relator in a cum: where tlie right of any inuiiici|)ulity 
 to a Reeve, or Deiiuty- Reeve, or RoeveH, is in cjuestion : see H. S. O. c. jR), 
 ss. Wt-71. When tlie <(\ie.stion is as to the validity of the election of any Mayor, 
 Wanlen, Reeve, Deimty-Ret^ve, Alch'rnian, or Councillor, thi'Uim f/vinulidaltu 
 the electifin, or tiny elector who <iiivc, or tenitered his vote thiretit, is (|iialifiHl to 
 be a relator ; and if the contest be concerninff the validity of an a|ipoiiitmcnt 
 by the members of th»! council of a municipality of any member of their Inxly : 
 see R. S. (). c. 184, «. lK(i ; then anil memlier of the roinicil, or aiiij t lietarof ihi 
 vKril, or if there is net ward, then tinii elector of the municipiiUtii for which the 
 apfHiintment was nuule, may be tiie relator. 
 
 A voter of another ward if he desires to complain of an election eiiiiiKJt ppi- 
 ceed in a summary manner under s. 187, but must Hie an inforiiiatidii in thi- 
 nature of a quo warrnnto : lietjinti ex ret. i'oUmnn v. (t'/iari, '2 1'. !!. ISjsw 
 also Reiiinii ex rel. Hart v. Lindioii/, 18 V. C. t^. H. 51 ; Jteoinii i.r nl. Vlmn'ii 
 v. St. Jean, 40 U. C. Kl B. 77. 
 
 As to who is to b«t deem(«l a candidate : see^ ('immlie v. Pitt, '.\ I!iht. IWIO; 
 MorriH v. Burdett, 1 Camp. '218 ; S. (\ 2 M. & S. 2U\: Afiitd: \. StiiriK* 
 M. & \V. 310 ; Harrist)u's Muni. Manl., (5th ed.) l;^8. 
 
 It is not necessary in order to constitute a jierson a " windidate" .so as tn 
 qualify him to be a relator, that he should be actually noiniiiatcd at thi' 
 election, where his actual nomination has been pn^veiited i)V the iiii.swmdiict 
 of the Returning ( )Hieer : llet/ina ex rel. Corlxtt v. ./((//, 5 1'. R. 41. but if after 
 being nominated, he, with tiie consent of his projMKser and seconder, withdraw, 
 he ceases to be a candidate : Rei/inii ex rel. Voi/ne v. Chiithoim. 5 I'. I{. 328 ; ami 
 see Jiegina ex rel. Harris v. Hradliurn, (i I*. R. 308. 
 
 A relator who w.as a candidate need not, in his application to oust the 
 defendant, show that he himself is (pialitied for the oftict^ : Retiinn rx rri. 
 Mitchell v. Adams, 1 C. L. Cli. '203. 
 
 If the interest of a relator is denied by the defendant on grouiids assigned, 
 then he must establish his interest : Regina ex rel. Rartliffe v. O'Rnlhi, H 
 U. C. Q. B. 017. 
 
 As to who are qualified to Im( electors : see R. H. < ). c. 184, ss. 7!*-87. Klcctnrs 
 who are disfranchised between the nomination and polling day are disfiualificd 
 from voting: Rejiitiaex. rel. Tavernrr v. W'ill.iini, 12 1'. R. .04(). An electfirwiio 
 has been instrumental in electing a candidate will not be ijcrniitted to (liK|)ute 
 the validity of the election of that candidate : Reqina ex rel. Pomeroii v. Watmn, 
 
 1 U. C. L. J. 48 ; Retjina ex rel. Loi/all v. Potlton, 2 P. R. 18 ; Reiiina rx nl. 
 ■ Rosebush v. Parker, 2C. P. 15 ; Kelli/ v. Macarow, 14 C. P. 457 ; lieiiinii cxrel 
 •(ilrayson v. Bell, 1 C. L. J. 130; Rei/ina ex rel. Rei/is v. i'l/.^ar, (! 1'. H. 303; 
 
 Reginacx rel. Harris v. Bradhiirn, Ih., .308 ; unless he can show that lie was 
 ignorant of the objection he desires to urge : Regina ex rel. ('oleiiian v. O'Hare, 
 
 2 P. R. 18 ; nor can a Councillor wiio has been instrumental in tlii^ election of 
 a person as Reeve, or Deputy- Reeve, afterwards dispute the electicm : RqiiM 
 ex rel. Rosebush v. Parker, 2 C. P. 15 ; but when his election is sucocsBfiilly 
 <lisputed by a third p.arty the seat may lie awarded to an opixisiiif,' candidate 
 who voted for the defendant : Retjina ex rel. Clint v. Upliam, 1 V. <!. L. •'• •>••• 
 And when there is only one candidate, or set of candidates, who is, or are, in 
 good faith elected by acclamation, no contest can b(> entertained under .section 
 185: lietiinaexrel. But/i/v. Bell, 4 P. R. 22G. As tohow far t!ie acciuiesccnceofa 
 candidate in an irregular election disqualifies hijii from afterwards being a 
 relator : see Retjina ex rel. Mitchell v. Attains, 1 C. L. Ch. 203 ; Reijina \ . Lofthouif, 
 L. R. 1 Q. B. 433. But the acquiescence of a candidate in an irregular election 
 will not prevent a voter who was no party to such acquiescence from applying: 
 Re. Charles v. Lewis, 2 C. L. Ch. 171. But if a voter take part iii an election 
 
CONTROVKUTED MIJNIOIPAI. KLKCTI0N8. 
 
 801) 
 
 iplicatidii the juris 
 
 he cunnot 1)1' litsard to Hiiy that it was wholly void : Rfiiina vjr rrl. MfLumjIilin Ral6 1038. 
 V. m,k.'<, 5 ir. 0. L. .T. 8». 
 
 WIhtc tlio u|>;ilioant faili-il to .hIiow in hi'* Mtutniiioiit that he wai cithtT a 
 LMmli<l!iti' or nil I'lcctor who liad vott'il ; it was lidd that thtMiiiilH.sioii wa'* fatal, 
 andiJimM Tiot lie aiiifiidi'd at a later Mtaf^t- of the |troiM'fdiiij,'s : Itniinn ix nl. 
 (Uunciiy- liilliiKi^, 12 P. 11. 404. 
 
 A '/'('' iriirrfiiiti) olitaiiii'd liy one rt'lator was set asjdi' at the iiixt.iiu'i' of 
 anothi'r rclatiir, on the ground of thi' tir^t relator lii-inj,' in collusion with tin- 
 (It.'fpniiiilit : H' I ilia r.n nl. I'ltllirsnii v. Vmicr, U I'. 1{, HIU ; lait one I'elator 
 ciiimit iil>jtrt to nicrt' irrejiuIariticH in the proeccdiuK'* of another, nidess he (Mill 
 show tiiev Were eonuiiitted desiK'nedlv to si'enre the failure of the priH'eedinKs : 
 ///., Ulldsee IlilhiiW, 412. 
 
 A n'liitor is liahle to he ordered to )»ay the costs of the defendant. An 
 otficcr I pf the ('ori (oration may i>e a relator, hut it i"* not desiralile that he should 
 til', 1111(1 lie may lie refused eosts even though siK'eessfiil : llniinii i.r nl. 
 McMiilliii V. IkLinh, S U. (;. L. .1. 2111 : llnihiti i.r nl. lirim v. Hmitli, !l I'. H. 
 
 CoHtH, lia- 
 tiility of a 
 lulator for. 
 
 Informatton, when necessary. In eases where the summary iiriH-eedinjrs 
 lirescrilM'd liy K. S. (). c. 1M4, s, 187, cannot lie taken to disinit'' the validity of 
 (111 tileutidii to any puhlii^ otticM', the (niestion can onlv lie (letermined upon an 
 infnrniiitioii in the nature of v'c/ irnrniiitii. A'.;/., where the rin'iit of ScIkmiI 
 Trustees to act as such is (|uestioned, the re),nilarity of their election can only 
 he tested I ly information, and cannot lie raised in any collateral proceediii);. 
 If, lidwever. the existence of tile power to form tli' school section for which 
 tlie trustees assume to act is denied, that may lie raised in a collateral pro- 
 oeediii;,' : Anki if v. Mniiniiii/, US 11. (',, (}. ]\. 'M't. As to cases in which leave 
 to tile an information will liejfraiited : see fh. jip. '.i'lH, tt mij. Where the election 
 of tile defendant is rt^jrular, liut it is claimed that liy a sultsequeiit act he has 
 forfeited liis seat, it would seem that an inforination must lie hied : Jlniiiui I'X 
 nl Mcdimirnii v. Lnirlnr, o P. H. 2<)«. 
 
 Where till! person ehuited has not made the re((uisite declaration of (pialiti- 
 uitidii iiefore enterinj,' on the duties of his office; see \{. .S. (). c. 1H4, ss. 73, 
 270, his ri^'lit to exercise the office may lie called in (luestion upon an informa- 
 tion in the nature of ii (iioi warriintn: /'iiiinii t'.r nl. Clatici/ v. St. Jain, Hl» 
 U. C. (I. H. 77. 
 
 Under R. S. O. c. 184, ha. 191, li)!(, it would secni that a relator can now 
 iittiujk the whole of the members of the council in one iiroccu'diiiff. 
 
 Formerly it was held that a relator could not attack a municipal (iouncil liy 
 ninie, u|mii t,'roinids which if sustained must necessarily lead to a dissidution 
 of the liddy, nor ci uld lu^ attack the whole council in one proceedinj,', through 
 the individuid names of every memlier of it ; /iciiina ex. nl. Liiirnncr v. tVoix/- 
 ruff,HV. ('. il H. XM; ; but see liix v. Porri/, (I A. *. E. 810-S2(). An informa- 
 tion for that purpose, however, would lie in the name of the .Attorney •( Jeiieral 
 on lielialf of the Crown : /tix v. Viirmarthni, 2 Burr. K()!l ; Rcr v. Omlni, 10 
 B. &C. 2.S0; Jifi/iiM v. Taiilor, 11 A. & K. !)4!». When the information is 
 filed by the Attorney-ttuneral, no leave of the Court is re((uired, but when it 
 is filed (III behalf of somi! individual, then the leave of the Court must be 
 obtained : 4 (S: 5 W. & M. c. IfS, hs. 2, 0. 
 
 Amuuoipal election may now be attacked by proceeding under these Itulf* 
 for bribery, corrupt practices, or anv other cause : /{eiiina ex n:l. Johns w 
 Stewart, Ki Ont. 5. 
 
 Where a relator can proceed under section 187, he will not be iiennitted to 
 file an information : h'elh/ v. Afncaniw, 14 C. P. 31.S, 4.57 ; R<v>na ixrcl. White 
 V. /fortr/f, IS U. (1 (l IJ. 22(); Reiiinu fx rcL Jolim v. Stewart, id Ont. .5; but see 
 Rf'jimuxrel. Chtncij v. ,SY. Jean, 4(1 U. C. (l B. 77. 
 
 When the time for proceeding in a summary manner is suffered to elapse the 
 itlator will not be allowed to file an infonnation in the nature of a '/ho 
 mmanto: Reijina fx rel. White v. Roach, 18 U. C. Q. B. 22(J. 
 
 Informa- 
 tidii. when 
 necoHHiiry 
 to lio tiled. 
 
 ^ 
 ^ 
 
 L(!avo of 
 t.'ourt to 
 tilini,' infoi" 
 mation, 
 when ne- 
 cessary. 
 
IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 
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 PhotDgraphic 
 
 Sciences 
 
 Corporation 
 
 
 23 WEST MAIN STREET 
 
 WEBSTER, N.Y. 14580 
 
 (716) 872-4503 
 
^. 
 
 Q 
 
 
 
 
810 
 
 Rule 1038. 
 
 AjipHca- 
 tioii to 
 whom 
 made. 
 
 Koeogniz- 
 aiico to lio 
 entered 
 into by Uo- 
 liitor an 1 
 two sure- 
 ties. 
 
 Time for 
 inaUiiii,' tlio 
 applica- 
 tion. 
 
 PROCEEDINGS WITHOUT WUIT. 
 
 A .-iuinni;iiis iiii;U'r The Municipal Act, is not an appropriate iiroceedinc' to 
 uiisi'iit a defendant who lias forftuted iiis seat by an act sul)S('(iuent to the 
 election, wiiere the election was lejfal : Itn/iiKi c.r rcl. Mcdonvirin v. Lnidnr "i 
 
 r. 11. 2(is, 
 
 Application for leave to sarva notice of motion.— The apiillcation may In. 
 now made to any .riulpre of the Hii,'h Court, or a t]ud(jre of tlu^ County Court (if 
 tile County in which the election or aiipointnient took place : H. S.O. c. 184, 
 s. 187, 02 V. c. [V., s. 4(i ; or to the Master in ChaiTil)ers : Unit ,S0 ; liaj. « rii 
 White V. McO/aii, 13 i\ U. '.Hi; hut if the proceedings are taken before a .TiKJgc 
 of the County Court they must be styled in the County Court, as tiieJiuiffHlias 
 no ])ower to act under this J\'(t/t or the foref,'oinf^ Statutes in proceed iuj^'s taken in 
 the llig'h Court of Justice : /ti(lr-{\ ; /tr<i. (X ?•(/. l)i)ii()li( rtiiv. M('('/<ii/,V.i\\[{.'i{,. 
 Ap|)lications in Toronto in t\w llij,'li Court are now usually made ti) tiie jSlastpi' 
 in Chambers: si^v It-ciinn ex rrl. lluiirrw Untirrta, 7 1'. H. 31o; Rki. txirl.Bnm 
 V. /Sooth, !) r. R. 452 ; S. ('., 3 Ont. 144 ; J{<v. ,x rrl. Ilufsh:! v. >'V;v/.s .'i P. R 
 241 : llvi. (X ril. Iliiniiltoi v. Piiiir, .S l>. K. 225; Rn,. v.e ril. b'riUt: v. Hoifluml 
 11 I'. ]{. 2(14. 
 
 Formerly wliere an application was made to a J.. Ige of a County Cdiirt for 
 a writ of sumuDiis lie had power to direct that it shoulil be male ri'tui'nal)ic 
 before a .liidjfe of thc^ Hi^di Court, if he should think it proper : Rciiita (x. nl. 
 Liil.zv. Williiiins III, W. R. !I4 ; but he has now no i)ow(!r to order a notice ol 
 motion to be made returnal)le before the .ludKe of the Hif»h Court: Rui. (x nl 
 Ddwihirtii V. McC/iiii, 13 1". R. od. 
 
 When the .Innior Judge of a County Court is officiating it would seem that 
 he has jurisdiction to grant the leave to serve the notice of motion in cases 
 brought in the County Court: Rcjiwi ex rel. Melkmnhl v. An(lvrKtin,)M\\{. 
 241. 
 
 The application should l)e supported by production of the notice of motion 
 desir(>d to he served, in which the various grounds intended to lie relied on 
 should be speciti(ially set o\it ; and also by affidavit or affidavits verifyini; the 
 material fncts necessary to support the a)>plication. Tt would seem that the 
 affidavit of the relator alone would ))e sufficient ; Reiiino ex rel. CamU v. 
 Beekirith, 1 I'. R. 278. 
 
 When the mistake or irregularity complained of by the relator, has in nn 
 way contributed to any iinproi)er result, the Judge may ])ro|ierly refuse to 
 grant leave to .serve the notice of motion : /'ei/ina v. Wmil, \j. R. S (^>. H. L'lO; 
 J'ei/iufi v. ('oii.sinn, Ih. 21(1 ; Rei/iua ex rel. (/rni/s m v. />e/l, 1 C. Ij. J. 130; and 
 see Rejiiiii. ex rel, IhiLited v. Ferris, 5 P. R. 241. 
 
 Tiie relator is also liound to enter into a recognizance of S200 with two 
 .sureties in iSlOO each, conditioned tt) prosecute the writ with effect, or t<i pay to 
 the |>arty against whom the .same is brought any costs which may lie adjudK'wl 
 to him against the relator: R. ' . (). c. 184, s. 188. The reeogni/aiice should 
 be prodnc(>d with an affidavit of justification by the svireties. 
 
 A distinct order for the allowance of the recognizance is not necessary ;A.'/i'ii' 
 e..c rel. Linlmi v. .Itiik-"iit, 2 C. L. Cli. 18. 
 
 As to entitling the recognizance : '■i:i'R":/iiiii ex rel. lihnul v. Fiijtl, (i C. b. •b'*^. 
 
 The relator's scdicitor should not act as commissioner to take the recngiiizance; 
 ce Rn'e 1073 ; but see Riiiinii ex rel. lilaisdell v. Rochester, 12 V. (.'. (l 15. l!3(l. 
 
 Tima within wMch application to ba made.- Uy R. S. O. c. 184, s. 188, the 
 ajiplication is to be laiide "within sbx weeks after the election, or one month 
 after aecei)tance of office bv the person electeil." In computing the six weeks 
 the dav of the electitm is to l)e excluded : Har. Muni. .Maiil., (4th ed..| 
 12(j-127. The month referred to is a calendar month : see R. S. <). c. 1, 8,8, 
 s.-s. 15. 
 
 The ivcceptance of office is a formal acceptance liy making the statutory 
 declaration of (iualificati(m, and office : .see R. S. O. c. 184, ss. 73, 27(t ; and not 
 a mere verbal acceptance by sjieech to the tdector.s : lieijina ex rel. Chtncen v. 
 McIiitoKh, 4() U. C. (J. R. '.(8. 
 
 In computing the c;ilendar month the la.st day falls on the corresnondini,' 
 clay in the ensuing month to that on which the acceptance <>f office took pto ; 
 
CONTROVERTED MUNICIPAL ELECTIONS. 
 
 811 
 
 iriatc iinictwlingtd 
 t nul)si'(|ui'nt to the 
 Diinriii, V. LniHor,\\ 
 
 ipplication mavl«> 
 tlif C!iiuntv C(iiirt(]f 
 ic<^ : R. S. 0. c. 184, 
 J!ii/i :M): 111, I. I'xri'l. 
 ikcii licfdi'f ii.Iu(lg(' 
 uvt, us tlu'.hi(lKe|ia< 
 prDCHi'diiij,'.-! taken in 
 .Mr('l<,!/,VM'. [{.■)[,. 
 y uiiuli' to tlieMiKter 
 15; Jim. (X irl. Brim 
 
 •'I V. Fin-U, T) ]', [{. 
 
 t'rrlit: V. Ndirldiiil, 
 
 f :i Cdimty Court fur 
 (' uiii-lc vt'tunnil)le 
 
 Opel' : Rniinii (x nl. 
 
 r to ()i'(l(!r a notice of 
 ;h Court ; Jir;/. tx nl. 
 
 g it would seem that 
 ce of motiim in cases 
 
 V. .\,l(ln:s„i,,Hl'.K. 
 
 the iiiiticc of motion 
 udcd to 111' relied on 
 Kdavits verifyincf the 
 would sfcni tliat the 
 /((' (X nl. ('(irrull v. 
 
 till' relator, has in no 
 av iiropcrlv refuse to 
 /•-/, L. H..SQ. 15.210; 
 '/, 1 C. I.. .(. 131); and 
 
 iiw of 82(10 with two 
 itli effect, or to pay to 
 hicli may be adjuilsjed 
 :■ reeoij^iii^iaiice should 
 tie.s. 
 i not necessary ; ft//'''ii' 
 
 (I V. Finn, '• ' '• !'• "T- '*''■ 
 take the reCDKiiizance: 
 ,v, 12U.C.Q. B.« 
 
 ^. (). c. 1H4. s. 18S, the 
 election, or one month 
 iiputiuK the six wpeb 
 unl. Maul., (4tli ed..) 
 see H. S. O. c. 1, s. S, 
 
 niakiiip: the statutory 
 ^^, s.s. 73, 270 ; and not 
 c(/i))a t\e rcl. Chincey v. 
 
 on the corresiiondinf,' 
 iceof office took place; 
 
 Abandon- 
 ment of 
 lirnceeil- 
 in^s. 
 
 Service of 
 notice of 
 motion, 
 how to be 
 made. 
 
 frcem'tn v. Reoil, 4 B. & S. 184-5, but if the acceptance take place on the 20th, Rule 1039. 
 .SOtli or 31st January, the montii ends (Hi the last day of the ensuing' month of 
 Febniarv. Six weeks are allowed to ini))each the election, althong'h the office 
 mav have been accejited more than a ealend.'ir month. If the a|>plication be 
 not niade within six weeks after the election, it may still be made, if the office 
 has not heen accepted a calendar month by the jx'rson elected. 
 
 Where .-ifter a summons had been obtained under the former practice the 
 relator tindinif his prot:ei^din,y:s irrej,'ular notified defendant n< it to apjiear and 
 that it wa-i his intention to jiroceed (/r jium, it was held that the first iiroceed- 
 iu" was U') b.ir to liis makini,' .-i si'Cind application : Jt'/. <','' ;•.■/. Mi'tralff v. 
 ,s>rW, 10 IT. C. (). 15. Si) ; 2 C. L. Cli. 114. 
 
 The granting,' of le:ive to give the notice of motion is in the di.scretion of the 
 .bulge, anil if in his opinion the objection relied (ni has not contriliuted to an 
 improper result lie may projierly refuse to grant leave to serve the nijtice ; .see. 
 noteto/f((/( 1040. 
 
 The notice of motion is to be served person;illy, but if the defendant evade 
 s"rvicean order for substitutional service may be made : K. S. O. c 184, s. li)l ; 
 but jiersonal service will not be dispensed with excejit for this causi! ; Ken. r.i- 
 rt Arii'ill V. Miirilidiit, 2 C. L. Cli. H)7. Irregularities in the writ nuvy be 
 waived l)y a,ppearanco : Iti'iiimi rr ivl. IJnliii> v. Jiichsnii, 2 C. L. Ch. 18. 
 
 In general a copy of the notice should be left with the (lefendant and the 
 original shown to him if he desire to see it : '''".'/.'/■' v. Ildntlniilniivr, 1 1). & li. 
 5!'!), />(''■ Alders<in, 1>. Service u])on a wife, agent, or servant is not personal 
 service: Frith v. hoiii'iial, 2 J)owl. 527 ; hariri v. .Uniyidi, 2 0. it J. 2.'57 ; 
 (liK/i/.i v. till 1)1 iiiiitiiii.ri; .111 pre : Vliri^tiiii^ v. Kifhr, ti 1). & L. 15(1 ; Harrison's 
 Mmil. Manl. 4tlied., 18!). 
 
 An irregularity in the teste of the writ was formerly held to be waived by 
 entering an ;ippearance : Ueijiiin r.r rel. Lintmi v. Jnrkitiin, 2 C. L. Ch. 18. 
 
 Proce'iings are not to be held irregular and void wdiich do not interfei'e 
 with thf just trial of the matter on the merits ; Ri'iina n- rcl. .]/r.Uiuiii.'< v. 
 l-W:iii^nn.-2(\ L. J. li); and see /iiili:'< 441, 442. 
 
 Where a County Court .liulge under the former practice, had .set aside a writ 
 wliieh had lier'u granted by himself, on excejitions taken thereto for irregularity ; 
 it was held that he had power to take that cour.se, and that a Superior Coiu't 
 had no power to interfere with his <leuision : Hi'i/iim r.i- rcl. ii'ri'iil v. (.'nlciiiiiii, 
 il\ R. 4!)7 : 4i; C. C. (,». 15. 175 ; and .see /{ci/ii'm i:r rd. O'lhriicr v. I.cwl.s, 32 
 C. P. 104. Hut the Court of Aiijieal, altiiough affirming the decision on the 
 groinid that the matter was not a|)pealable, nevertheless held that, after a '/"" 
 i''((('('r/«Ai suninions had been issued, and served, it could not properly be set aside 
 for irreguh'rity, but must be disposed o; un the merits ; licjinn <'.'• /•('/. (Jrinit 
 V. ('iijciii'iii^ 7 Out .Vp)!. ()2(). 
 
 Several Applications. K. S. (). c. 184, s. 1!)2, provides as follows ;~ 
 
 "1!)2. Wheni more writ.s than one are lirought to try the validity of an 
 election, or the right to a reeve, or deputy reeve, or reeves as aforesaid, all such 
 writs shall be made returnable before the .ludge who is to try the first, and the 
 •bulge may give one Judgment \ipoii all, or a separate judgment ujion each one 
 or more of them as he thinks fit"; see /tiyimi c.r rcl. Fn-ii-nril v. Hcllu; 4 P. K. 
 11)7; Mcijiim V. M,ii/i,r of Tcii-h.^huri/, I.. It. 3 I J, 15. (i2!». 
 
 By iinidogy to this iirovision it would jirolwlily be deemed iirojier in the 
 event of more than one notice of motion being served, to adjoin-n iioth or all 
 to Ik| heard liefore the .Fudge who is to hear tlu' one first served, and ujion such 
 applications the .ludge woidd be at liberty to iironmnice one judgment or 
 several as luMnight see fit. AVhen an application is collusive and intended to 
 protect the defendant in the enjoyment of his office, .see Ilci/iiui cc rcl. McLean ^. 
 ^yntmu, 1 C. L. .1. 71. 
 
 1039. The notice of motion shall l)e at least a seven Notice of 
 clear days' notice, and the relator may either mention the "'""°" 
 return day therein or may state that the motion will be 
 
 Irregulari- 
 ty in pro- 
 ceedingB. 
 
 Writ can- 
 not 1)0 set 
 aside for a 
 mere irre- 
 gularity. 
 
812 
 
 PROCEEDINGS WITHOUT WRIT. 
 
 Rule 1040. made on the eighth day after the day of service of the 
 notice, excluding the day of service. 
 
 Notice of 
 motiuii, 
 what to 
 -contain. 
 
 When seat 
 claimed on 
 Sronnd of 
 disqualifi- 
 cation of 
 defenlant, 
 evidence 
 required 
 that notice 
 of disquali- 
 fication of 
 defendant 
 was given 
 to electors. 
 
 Discretion 
 of .Judge as 
 to award- 
 ing seat. 
 
 Property 
 qualifica- 
 tion, how 
 estimated 
 
 Tuchnic.il 
 objections. 
 
 Abandon- 
 ment of 
 proceed- 
 ings by 
 relator. 
 
 1040. The relat"" shall, in his notice of motion, set 
 out his name in full, Lis occupation, place of residence, and 
 the interest which he has in the election, as candidate or 
 voter, and shall also set forth specifically under distinct 
 heads, separately numhered, all such grounds of objection 
 as he intends to urge against the validity of the election 
 complained against, and in favour of the validity of the 
 election of the relator, or another or other person or per- 
 sons, when he claims that he or they, or any of them, have 
 been duly elected. 
 
 Tlie omission tn states that the applicant is oitiicr a candidate, or a voter who 
 lias voted at the election, is fatal, and cannot be amended at a .■^ul)se(|iit'nt stajri' 
 of the proceedings : Unjiiut c.e irl. ('/iidiiirri/ v. Jii/I in ;/.■<, 12 l*. K. 404. 
 
 When the .seat is claimed by the relator himscilf, or for .some other person, mi 
 the ground of the discpialification of the party elected, it is necessary toshnw 
 that the electors were duly notified at the nomination : RcijiDii i:r rcl. Tliiiiiinj 
 V. I'lil'iiir, \ V. K. ;{(), of the alleged distjualification. Where this is not shown, 
 (nen tho\igh the disiiualificatioii be established, a nc^w election will he ordered: 
 lli'!liii(i r.i- ret. Ht'rtri/ v. <SV'(//^, '2 C. L. Cll. 88; RfijiiKi (■,<■ n/. UichiKinidw 
 'J'i'ljd rt , 7 V. C. L. 'h 128; Rci/iiia c.r rcl. FatnujlKiu v. McMdhun, IIi.Im; 
 Rf(/i)i(i I'x rel. Dc.i-lfi- v. (Imi'dn, 1 P. H. 104 ; Rcijiiut i\r rel. Ai/d/nsnn v. Il'iyd. 
 4 P. R. 201 ; Nrniiiii <:r irl. Ford v. MrKtif, .5 P'. R. .3()i». In order merely t^i 
 set aside the election it is not necessary to show the notice of th(^ (lis(|iialifica- 
 tion was given : Rri/iiid e.c rcl. <'<ilcm<in v. (yj/arc, 2 P. H. bH. When the 
 relator clanns to have been elected at the nomination owing to the defendant's 
 (ILsqualification, his subsequent gidng to th<? |)olls waives su<di right : Reijimi 
 e.i: rcl. Furwitrd v. /)eUi)r, 4 P. R. 1!)8. The niturniug officer has no power tn 
 adjudicate" upon the alleged disqualification of a candi<late wlio has the 
 majority of votes ; he is bound to declart^ hi'ii elected, and tlie iiiiiioimcenient 
 of the fact that he has the majority of votes wotdd seem to be a sufficient 
 declaration : Rci/ina v. Mai/nr of /inui/nr, 18 C^. 1$. I). 34!(, >V. ''. -vih mmi. 
 /'ritchard v. Ma;/ornf Itani/ur, ISApj). Cas, 241 ; 58 L. T. N. S. 502. 
 
 It would seem to be a matter of discretion with th(> .Fudge whether or not he 
 awards the seat to the relator, which cannot be interfered «ith on ii\<]ra,\, 
 assuming that there can now l)e any ai)]H!al at all ; see K. S. O. c. 184, 
 s. 207 ; Rc'/ina e.c rcl. Clark v. McMulten, i» U. C. C^. I}. 4()7. 
 
 In estimating the proj^rty qualification required by a candidate under 
 R. S. (). c. 184, s. 73, the amoimt of mortgages upon the i)r()perty must be 
 deduc ted from the assessed, and not from tlie real vahie : Rc'iiim cr n'l. KfUy 
 v. Ion. 8 P. R. 432 ; and .see Ite'iiiia ex. rel. /irine v. Ilnol/i. <) V. It. 4.")2; 3 0nt. 
 144; Rc:iina e.v rel. Clancy v. Afc/nlo.i/i, 40 U. C. Q. K !)8. The accurivey of 
 the asstjssment roll cannot l)e controverted (m such an application : Rcijtmej' 
 rel. Hamilton v. I'ipcr, 8 P. R. 22.5. 
 
 Pr(K!eedings are not to 1)(» set aside or held void (m accomit of any irregularity 
 or defect which shall not in the opinion of the Judge interfere witli the just 
 trial r.r adjudication of the case on the merits : Hulcn 441, 442 : but see Rfgwn 
 e.crcl. Channrcij v. Billin;i.f, 12 P. R. 404. 
 
 Where after a defendant has been served with the summons, but Ijefore Iw 
 has appeared the relator finds his proceedings are irregidiir or defective, he 
 may notify the defendant not to api)eur, and abandon his proceedings, ami 
 conmience dc novn provided the time allowed for commencing his |iri«et'din(,'< 
 has not expired : Regiiia ex rel Melcalfe v. Smart, 10 U. C. (^ 15. I^'J. 
 
CONTROVKKTKD MUNICIPAL ELECTIONS. 
 
 8ia 
 
 service of the 
 
 Til ' rAiii II' i^ iii>t |)nrmittt! 1 at tin' hearing to take ()l)jecti(>ns not s|)"(\ti(^(l in 
 till- iidticc i)f niiition: see Jii'/r 1042; l)iit tlie .ludge niivy in his discretidii 
 ciitt'itaiii iipi'ii his own view of tiii^ oase any suhstiintial ground, or objection 
 to 111' ill sii|)|)iirt of, the validity of the election of either, or any, of the jiarties 
 wl'iicli iii;iy a))|)ear on the evidence : I/>. 
 
 When' till' allegation in the statement was that tiie relator " had an interest 
 in tlii' siviil cleetion as a v<iter,"' and his affidavit stated that he had voted "on 
 tilt' said I lection, hut not for the said William Uastal," it was held to be 
 Hitficieiit ; Hi'ijiiKi ''•'■ I'l'l. IIkx" v. linstal, 2 C. I,. .1. Kid. A relator is not 
 iitwisari'y iioiind to ]>rove his interest, unless it is exjires.sly denied by the 
 (iefi'iiiiiuit ; Itfjiim r.r rcl. Jii>''fli,lf>- v. O'Hcilhl, ^ V . (J. (,). 15. (llY : Jlri/imi i:r re/. 
 I'lmifi'''!! V. W'lil.fidl, 1 U. (.'. L. .1. 4S ; Jtri/iiid i:r nl. t'diii/i/iill v. ()Mfil/ri/, 1(» 
 0. li. .1. 2J(I ; Jlt'i/hi'i !■■'■ nl. Slimr v. A/(ir/,rnzii\ 2 ('. L. C"h. ',W> ; but it was held 
 iiiulcr the former jiraeticK' that the issue of the writ did not estalilish the 
 iiitcrc-'t i^f tile relator if denied, ///. 15ut the interest of the relator should be 
 ilistiiictly stilted in the notice of mcvtion : liii/i'nn <■.<■ re/. Wliitf v. Riiiih, IS 
 r. ('. t,».' H. 22(1; and sv{' J{r;ii,iii r.r irl. Uims v. Riislnl, 2 C. L. .1. jCiO; but 
 wlici'i' the fact ajijiears by the affidavit, but tiie allegation is omitted from 
 the imticc of motion it is possible tlie latter may be amended : see lifijiiKi ex 
 rfl. O'lti'iih/ V. Cliiidlnir, (1 T. J{. 254; but see Jli'/ind ex rel. t'/idinirei/ '■'. 
 Iiilli,i;i.s, 12 P. H. 404. 
 
 Wiieii the interest of the relator as an eleet(U' is denied, the proper jiroof of 
 his rijflit, is the production of the roll, or an autlienticate(i cojiy : Jtei/ii(d ex rel. 
 (•(tmjMI V. (fMdllf!/, 1(» C. L. J. 2.')0. 
 
 Foniit'i'ly the statement of the relator was required to be signed ; and it was 
 held that the affidavit of the relator indorsed that he believtKl the objections 
 witiiin stilted to be well founded was not sufficient to disjiense with his 
 siRiiaturc : Jte;iiidi ex rel. Tdfer v. A/Jmi, 1 P. K. 214 ; but it would seem that 
 thi rt'latiir's signature to the notice of motion, unless he is jiroceeding in (lerson, 
 is not now necessary, but that it will be sufficient if signed by his solicitor in 
 the ordinary way. 
 
 Tiic affidavit of the n^lator alone, w.-i.s held sufficient to obtain the writ of 
 suiiinions in tlip nature of a '/"" ledrntiili) underthe former practice, even b(>fore 
 the act enivliling him to be a witness in liis own l)ehalf : Rei/ind ex rel. Ciirrall 
 \\lted-witli,ll\ H. 278. 
 
 The affidavit sustaining the relator's case n(*d not necessarily state that the 
 liefeiidant has accepted or aiited in tlie offic(^ : /{ei/iiiti rx rel. I/elliicell v. 
 Skiiliensnn,l C. J,. CJi. 270. Hut when alienage is the objection relied on by 
 11 relator, it must he showTi particularly how the (larties (Mnnplained of are 
 aliens ; a general affidavit of the fiu^t was held insufficient: Jlei/iiid ix rel. 
 I'umll v. liirkwilli, 1 P. H. 278. 
 
 When the affidavit of the relator, tiioiigii not entitled in any Court, followed 
 1111(1 referred to his statement whicii was properly entitled, it was held 
 Miftieient, and an objection that the recogiiizanee « as not entitled in any Court 
 «iis disallowed on similar grounds ; llei/iim ex rel. lildml v. /''/(/(/, (> I'. V.. L. J. 
 44; liutwe llirnus v. Amher.^lwrjh, 11 U. C. i}. I!. 4,")8. 
 
 RiUe 1041. 
 
 Objections 
 not taken 
 ni state- 
 ment. 
 
 Statement 
 of relator. 
 
 Interest of 
 relator. 
 
 Amend- 
 ment of 
 statement 
 when 
 allowed. 
 
 I'roof of 
 relator's 
 interest. 
 
 Statement 
 of relator 
 to be 
 signed. 
 
 Kntitliiig 
 
 iiflidavitbf 
 
 relator. 
 
 lis notice t)f motion he shall file -^'"''"Vits 
 
 to be (lied. 
 
 1041. IJel'ore serving 
 all the affidavits and material upon which ho intends to 
 fflove, except when tivd rorc evidence is to be taken, and in 
 that ease he shall nam(! in his notice the witnesses whom 
 he proposes to examine. 
 
 Wlii'ii tlie )i:ipei's on whicli a summons \v;i< olitaiiied witc left with the Filing 
 iimly Court .ludge, but were handed liy iiini to the defendant's s(jlieitor, parors. 
 Ii'iore tile return clav, for perusal; it was ludd sufficient, and that it was not 
 p^ciitial that thev s'houhl have been filed with the l)e|)Utv (Herk of the Crown 
 ';fiiretlieRuiriiiions issued: J.'e'/iiid ex rel. lildimlell v. Jtoe'/iesler, 12 V. C. t^ K 
 
814 
 
 XTL 
 
 
 Rule 1041. 
 
 It. S. O. c. 
 
 laj, s i'.)7, 
 
 IJi'ovisidii 
 of, n» to 
 trial. 
 
 lb. 8. 212. 
 
 Disclaimei' 
 whore to 
 be filed. 
 
 Form of 
 discliiiiiier, 
 after jiro- 
 ceediugs. 
 
 Trans- 
 mission of. 
 
 Form of 
 disclaimer 
 before i)ro- 
 ceedings. 
 
 PROCEEDINGS WITHOUT WRIT. 
 
 "Tlip Jiulge sliiill in a suniniiiry manner, upnii .statement and answer, 
 without formal pleadinfjs liear and determine tlie validity of tiie eleeti" , or 
 tlie right to a Reeve or l)e]mty Reeve, or l^eeves, and may liy ( irdcr rim. • thi' 
 as.se.ssmcnt rolls, collector's rolls, list of electors, and any otiier recdi'ds uf the 
 election to he bronght liefore him, and may in(|nire into tlie facts on iitticlavit 
 or affirmation, or hy oral testimony, or by issues framed by him, and .■'iiittdb' 
 tried by jury l>y writ of trial directed to any Court namiiil liy the .Iiidfjc, (irin- 
 tmo or more of these means, iis lie deems expedient, siiiiject, how ever, to thi- 
 provision.s of section L'lli : "' R. S. (). c. 184, s. 111". 
 
 Section 212 jirovides that when in an ajiiilication in the nature of a '/ci 
 )(vo'/v//,/e, any (piestion is raised as to whether the candidate or any v<itwha» 
 been guilty of any bribery, corruption, or using violence, or intiiiiidation, 
 within section 20!l, or 210 of tiie Act, the evidence to jn-ove tlie otfeiuc iiiii,-t in- 
 given vivi'i ruif before a .ludge of any ("ounty Court, uihui a reference toiiiin 
 bj- the Judge of the High Court for that purpose, or upon idi ap|ioiiitiiicnt 
 granted by him in cases pending in such County Court. It lias been iield tint 
 the Master in Chambers h;" power to direct a reference to a .hidge of a 
 County Court to take the ev 'nee: Jin/, ry rel. Wliilr v. McCIkii, VAV. K.llli; 
 2.-. C. L. J. 284. 
 
 In other cases i,he right to adduceoral evidence was formerly in tlie discretion 
 of the Judge, and an oral examination of the jiarties or witnesses iiiigiit lif 
 refused; Iti-'linacx irl. I'iddiniitnu v. lili/i/iU, -l V. K. 80 ; but .see now, &//■ 
 578. 
 
 Where ,au is.sue is directed to be tried by jury, see /tiilr 1043. 
 
 Material facts alleged in the relator's notice of motion ;ind supported liy the 
 affiilavit should be answered, or they mav be taken to be admitted bv tlii' 
 defendant : /tif/inti i.r nl. Ihnri/ v. Scott, 2 C. L. Cli. 88. 
 
 And the interest of the ndator, if intended to lie contested must lie distinctly 
 denied, even in a case wlx're though it is stated in the notice of nintinn, it is not 
 verified by the relator's affidavit : see note to Uulv 1040. 
 
 Disclaimer.— By R. S. (). c. 184, s. 200, "Any person whose election i^ 
 complained of may, unless such election is c(im|ilained of on the jfronnd of 
 corrupt jiractices on the jiart of such person, within one week after service on 
 him of the writ, transmit jiost ])iiid. through the post office, directed to 'Tiii' 
 Clerk in Chambers, at ()sgo(,de Hall, Toronto,' or to ' The Juilge of the County 
 Court of the County of ' (hk thr amc m(ni k) 
 
 or may cause to lie delivered to such Clerk or Judge a disclaimer signed by him 
 to the effect following : 
 
 I, A. ]5.. tipon whom a [writ of snnimons, in the nature of a '/»o iivrrantn*] 
 has been served for the imrpose of contesting my right to the office of Town- 
 slii]) Councillor (or att the cage miiii In) for the Township of . 
 
 in the County of , [or an tlir cn.v mail be), do 
 
 hereby disclaim the said office, and all defence I may have of any right to tlie 
 same. .^ 
 
 Dated day of (Siijiuil.) A. B.' 
 
 Such disclaimer, or the envelojie containing the same, is to be indorsed on 
 the outside thereof with the word "Disclaimer," and to be registered at tin' 
 Post Office where mailed : Ih. s. 201. 
 
 A duplicate should also be delivered to the Clerk of the Council : see s. 204. 
 infra. 
 
 Where there has been a contested election, the person elected inay at any 
 time after the election, and liefore his election is complained of, deliver to the 
 Clerk of the Municipality a disclaimer signed by him as follows : 
 
 " I, A. B., do hereby disclaim all right to the tiffice of Township Councillor, 
 (or an the euKC mail he), for the Township of ,', 
 
 (or as the case mail be), and all defence of any right I may have to the same. 
 lb. 8. 202. 
 
 * Having regard to the change effected in the practice by these Rules, for the 
 words here in brackets shonld now be substituted "notice of motion.' 
 
CONTROVKRTED MUNICIPAL EiiECTIONS. 
 
 815 
 
 tpiiiPiit fuifl answer, 
 ty (if tlic clfi'ti" ,(ir 
 ly liy (irdcr cmi. vthi' 
 other l'<'ii(il'(ls yf the 
 the fiicts im :itti(lavit 
 ly liiiii, and sent to Ik 
 I by the .liid;,'!', (irl)y 
 jt'ct, lidWt'Vfi', to th" 
 
 tli(> uiitun' of a 7"' 
 diiti' (ir !iny voter ha> 
 iiuo, (II' iiitiinulation, 
 I'c till' (iffciKM' must lie 
 1(111 a rcfcrciic'i' to him 
 iipdU all aiiiiointnicnt 
 
 It lias liccu licld tli»t 
 'lice til a Judge of a 
 
 MrClaji, V,\\\ R.%; 
 
 nerly in tlie discretion 
 ir witiioscs iiiigbt lie 
 M) ; liut see now, Rill- 
 
 e 1043. 
 
 and suiiiiorted by the 
 ) be admitted by the 
 
 stcd iinist lie distinctly 
 ticeof motimi, itisnot 
 
 sdii whcse election is 
 ;1 of on tlie ^'roimd of 
 e week after service on 
 tfioe, (lireeted to 'The 
 le .lu(l;-,'e of the County 
 ' ((/« (/(( ('((.v(: mmik] 
 sclaiiiicv signed by him 
 
 ire of a <in<) mirmnln*] 
 t to the office of Town- 
 of ^ • 
 
 g tlir cn.'if iiWil h(), (to 
 lave of any right to the 
 
 (Siijnril.) A. B." 
 le, is to be indorsed oil 
 to be registered at the 
 
 the Council : see s. 204. 
 
 8on elected may at any 
 lained of, deliver to ihe 
 s folloWH : 
 f Township Councillor, 
 
 may have to the same." 
 
 e by these Ihdes, for the 
 tice of motion." 
 
 "Such disclaimer shall relieve the jiarty making' it from all liability to Rules 
 costs, aiid when a dis(!laimer iias been made in accordance with the iirecediiig 1042, 1043. 
 sections, it shall operate as a resiffiiatioii, and tlie candidate having- the jiju-ty ,],x. 
 highest nunilier of votes shall then become the Councillor, or other otKcer as elaimint^ 
 the case may be." Jl>. s. 203. not liable 
 
 A dii|ilicate of every (lisclaimer is to be delivered by the party disclaiming to 
 the Clerk of the Council who is forthwith to communicate it to the Council : 
 see ///, s. 204. 
 
 Wliere a disclaimer is tiled, no costs 'ire to be awarded against a. ly jierson Costs when 
 duly (lisc'liiiiiiing, unless the Judge is satisfied that such party consented to liis disclaimer 
 iiimiiiiatidii as a candidate, or acce[)ted the office, in which case the costs are '"'•'d. 
 ill the discretion of the Judge : lb. s. I'O.j ; lUiiina ix nl. (.'uujjiand \. IIVZ/.s/c/', 
 t) V. G. L. J. W». 
 
 The imicednre laid down in the Statutt; should be strictly followed, other- 
 wise tlio disclaiiner would be insutticient to relieve the party disclaiming from 
 oustii, 
 
 Where the disclaimer was filed a day too late the defendant was ordered to pay 
 the relator's costf- I'djiiKt cr irl. llairke v. Hull, 2 C. L. Cli. 18li ; and where 
 aih'fendant, after he had accepted oHice, but before he knew of the issue of 
 the writ, but knowing that his tdection was to be contested, sent an instru- 
 ment to the connc'l in the following form : - " I'alnierston, February 7th, ]iS81. 
 To the .Mayor and Council of the Town of Palnierston : (lentlemeii, 1 beg to 
 disclaim my seat la the (Joiiiicil lioard. (Si(int<l). (i. S. Davidson."" it was 
 held that the disclaimer, not being in tlm form prescribed by the Statute, was 
 not sutticient to relieve the defendant from costs : JO'i/lna rx irl. Mitclull v. 
 Durklsun, H 1>. H. 4.34. 
 
 Th(i etfect of a disclaimer after the service of the notice of motion is to ]iut an 
 end to the suit : Rcfiina cc nl. Hniinnk v. I'aiil, !) C. L. .1. 238 ; but where the 
 object (if the iiroceediiigs is not only to cause the defendant to vacate the office, 
 but to substitute aiiothei candidate in the office, the disclaimer cannot j)revent 
 the substitution : see Riyiiiu v. Jilizunl, L. li. 2 t^. B. 05. 
 
 lO-l'i. On the hearing of the motion the relator shall 
 not ')e allowed to object to the election of the party or 
 parties complained against, or to support the election or 
 election.s of the person or persons alleged to have been duly 
 elected on any ground not specified in the notice of motion ; 
 but it shall, neverthelciS, be in the discretion of the Judge 
 to entertain upon his own view of the case any substantial 
 ground of objection to or in support of the validity of the 
 election of either or any of the parties which may appear 
 in the evidence before him. 
 
 This Hill,- is taken from JRu/e !) of the former Municipal Election Rule.s : see 
 Holuiested's Rules and Orders, p. 033. 
 
 !•; fleet of 
 tlisclaiiner 
 alter writ 
 issued. 
 
 Hearing of 
 motion. 
 
 % 
 
 ^i$& 
 
 When the interest of the relator apiwared by the affidavits, but was omitted 
 ™'" tlie atateni.ent, the latter was allowed "to be amended : Jia/ina ex ret. 
 OlMly V. amrltun, G P. R. 254 ; bu 
 12P. R. 404. 
 
 but see Rcijina e.c ret. Chauncey v. Billinys, 
 
 1043. In case a necessity shall appear for sending an issue, when 
 
 issue to be tried by a jury, an order for that purpose may ^° ^^ '"'''^• 
 be made, and the issue to be tried shall be stated in the 
 
 order. 
 
816 
 
 PROCEEDlNaS WITHOUT WRIT. 
 
 Euie 1044. 1044. When the Judge before whom any such case 
 jiidKiiii'nt. gliall 1)6 pending shall have determined the same an order 
 shall be drawn up in the usual manner which shall statecon- 
 cisely the ground and effect of the judgment, which order 
 may be at any time amended by the same Judge in regard 
 to any matter of form, and the said order shall have tbe 
 same force and effect as a writ of mandamus formerly had 
 in the like case. 
 
 " Tlu- decision nf the Judge sliall he final, and lie shall immediately after his 
 judgment return the writ and judgment, with all things laid before iiiui touch- 
 ing the same, into the Division from which the writ issued, there to remain of 
 
 fVpp. (ili). 
 
 It is presuTiied as there is no longer to be any writ of sunnnons ismibd tlie 
 return contemplated by this section should b«! made to the i)roj)er(ifticerof the 
 Division in wiiich the proceedings are t-ntitled ; or in cases in the County Court 
 to the Clerk of the Court. Under the former practice it was held not to Ijt 
 necessaiy to enter the judgment in the judgment book, see ii»/(, 772 ; but it 
 was sufficient to file the proceedings of record : per Boyd, C, and FergUNoii, J., 
 Standinh v. Shii-ldn, Ch. 1)., 4th Mar. 188(J. 
 
 Notwithstanding the wording of s. 207, as to the finality of the judgment, it 
 is possible that when it is incnoiinced by the Masters in Chamber it is still 
 ai>i)ealabli' in the same wav as any other order made by him : see llri/ant v, 
 Iieadin<i, 17 C^. J5. 1). 12«; 54 L. T. N. S. 524; Vlvnch v.' huulei/, 50 L. t.N.S. 
 122. 
 
 Costs, dip- Costs.— Costs are in the discretion of the Judge or judicial officer to whom the 
 
 crotion of application is made : Mv'.c 1170, 117W. 
 
 .Judge as to. 
 
 No costs are to be awarded against a i)erson didy disclaiming, unless the 
 Judge is satisfied that uicli party consented to his nomination, or accepted tlic 
 office, in which case costs shall be in tlie discretion of the Judge. In .ill cases 
 not otlierwi.se provided for, costs are in the discretion of the .hulge: R. S. 0. 
 c. 184, ss. 205, 200. 
 
 There aiii>ears to be no means of enforcing |)ayment of interlocutory costs, 
 unless they lie ordered to l)e paid by the judgment in the niatier : see^w/' Patter- 
 stm, J. A., Kc'iiiKH'x ii'l. (iniiil v. ('iili'iuan, 7 Out. App. at i). 02(i. 
 
 Where a new election is ordered, the relator is pritiid facie entitled to aists 
 against the defendant : lii-'jiiat i\,- rd. linsx v. Rxslal, 2 C. L. J. KiO; Ri'giw (.' 
 rcl. hid- V. As.-ir/.tliiii; 1 I . C. L.J. 40. So also when the relator is declared 
 entitled to the seat in consecpience of defendant's disqualifications ; lieginou 
 n:l. Ilidniioiu/ v. Tri/m-/, 7 I . 0. J>. J. 128. 
 
 But the .Judge may refuse to order a party to pay costs, when it isiiot shown 
 tiiat lie participate'd in tlie improiier conduct for which an election is set aside; 
 Itt'.'iiitd ,'x Ii'l. Ihn-h v. II ihi.u, 3 l'. (.!. L. J. 105 ; and see Ri'ijitui rx rd. Muii 
 V. ' /ti>iral, 13 U. C. (I. B. 340 ; J{i'i/liia ex rel. llordaiiier \\ J'crry, 3 U. C. 
 I.. J. 00. 
 
 When tlie relator was an officer of the Corporation, though successful, costs 
 weit refu.sed : lle,/iiiii ex eel. Me Mullen v. helAde, 8 U. (,'. L. .1. 2!»1 ; /^f.y'"" 
 ex rel. Jirine v. JJontli, I'. I!. 452. 
 
 A d(\fendant who had acted in good faith, but was held to be disqualitiifl, 
 was ordered to pay costs : Mei/iiia ex rel. RoUn v. Beard, 3 P. R. S.W : ^" '"' 
 Vhark.t v. Lcwh, 2 C. L. Ch. 171, 177. 
 
 Uccisliins 
 as to costs. 
 
CONTUOVERTEI) MUNICIPAL ELKCTI0N8. 
 
 817 
 
 iiloffict'i- to wliomtlie 
 
 But wlici'f ft (U'ffiiilant throiigli the iniproi^T (U'oiMioii cf the Clerk of a Rule lOM. 
 Cduiicil WHS (li'cliircd entitled to ii scat, ami acecpti'il office, and was sworn in 
 H'itlioiit liiiVinK interfered with tlie decision of tlie Ch-rk or otherwise niiscon- 
 iliietwl himself, tiioiigh his election was set aside, no costs wer;; awarded 
 uKiiiiist him ; Ih'tjiiiii i.f rd. MrMniinti v. Finjuxtin, 2 C. L. •!. lit. 
 
 Wlicrc a ii^tuniiiiK officer was added as a party, and was aetiuitted, and 
 lli^cil:ll>,'e(l, and the relator's statement not benit^' strictly correct, the relator 
 \v:is (irileied to pay the officer his costs : /tri/ino ex re/, flairkc v. /fall, 2 
 ('. L. VI. LS-J. 
 
 A returning officer will not \isually he ordered fo ])ay c:osts, even thongh hit* 
 (iiiKhic't lie in some particulars irregular, if his motives were pure, and his 
 comliK't free from corruption or partiality ; iitniiKi i.f rr/. McVma v. (/rahrtm, 
 7 U. C, Ii. .1. li'i ; Hiiiina ex rcl. Ciiiiii/aiiil v. n'thx/rr, (i V. C. L. J. 8!) ; Retjina 
 t.rret. Anuitt v. Miirclidiit, 2 C. L. Ch. Ki'. 
 
 Where tlie returning officer acted lioni'i tidi , and the defendant procured a 
 written legal ojiinion to he sent to him, l»y which means he olitailied the seat, 
 the t'lists of making the retiu'ning officer a party, were ordered to be paid by 
 th(^ defendar.t : Uiyiiid ex rrl. Pniiurniiv. Wtitttau, 1 l^C. L. .1.48. 
 
 Wiicre the returning officer has acted improperly at the defendant's instance, 
 Iwtli lie ami tiie defendant may be ordered to pay tlu- relator's costs : Rciiuiu 
 ixnl. Aelicdii, V. iJaiioiihiK, ir> U. C. <i. B. 4.")4. 
 
 But a returning officer who received illegal votes, not on the assessment rolls, 
 was ordered to pay costs : Itinimt ex rtL Ji>lnixim v. Marniii, '> U. ('. L. J. 87; 
 Hiid see Rriiii<iii\r vil. Miti'ltill v. Ruakiit., 2 C L. Ch. Hil ; Rtyinit ex nl. Tvttcik 
 V. Bdui, 4'r. C. L. .(. --'(L'; R<<ii'ii<i ex nl. Coi-hctt v. ./"//, .") 1'. II. 41. 
 
 (,'()sts will not always lie awarded against an unsuccessful relator : Ri'iihm ex 
 nl. Crir.ii r v. '/'(I'/lar, (» I'', C. L. .1. (iO ; Ra/iii'i ex rcl. Ariiuir v. (.'ostc, 8 C. L. .T. 
 1») ; Rcin'iM <x nl. t'UUlinijton v. lUihhIl, 4 I'. H. 8(». 
 
 .\ l)y-la\v jiassed liy a township comicil levying money t(' pay tlie costs of a 
 eciiitt'sted election is illegal and will be rpiashed with costs : In re Jirll v. 
 Muimr.'<, -2 0. P. ."lO? ; H C. 1>. 4(»l». 
 
 Ccists will be tiixed on motions in the High Court under these /i/'/cs according 
 to tlie tariff on motiuiis in tlie High Court. See A'';/, v. /////, !) C. L. T. 170. 
 
 FORMb OF rilOCJilEDINGS 
 
 IN 
 CONTESTED MUNICIPAL ELECTIONS. 
 
 No. ]. — Form of Xotice of Motion hij the Relator. 
 
 IX THE HKlll COUUT OF .lUSTICK. («) 
 
 -mvisio.N. 
 
 TUE QUf:KN UPON THE RELATION OF A. B. 
 AGAINST 
 
 CD. 
 
 Take notice that by leave of (the Honourable Mr. Justice or the 
 
 Master in Chambers — or His Honour E. F., Esquire, Judj^e of the County 
 
 (") This and the following forms are entitled in the High Court of Justice, 
 Imt where tiio .Fudge (if the County Court gives leave, under 52 V. c. 30, 
 »• 4ti, t(i serve the notice of motion, this, and all other proceedings, must be 
 ♦■iititli'd in the County Court. Where the proceedings are in a County Court, 
 tiieftii'iiis here given will require some further modification. 
 
 J.A. 62 
 
 iiii 
 
818 
 
 PROCBEDINQS WITHOUT WRIT. 
 
 % 
 
 to. 
 
 Rule 1044. Court of (/>), a motion will be niiulo on boliiilf of tlio abnvo named 
 
 A. !■>. (Ki'ttinii oiil his iiniiic In full, orcKpiilinii, pl'icc of rcaitliiici', niid tlw 
 intcri'nt irliirli lie lim in llir Eifctitm an ciintiitlntc or roli'f : aw. Huh' 1040j 
 imto [the prosidiii'^ .hi(l)^'<', or as the nisf nidi/ In'] in ('liainbors iit 
 on tlio <l;iy of ] «;• on tlio eif^hth (lay after w(3rvici) luTcotso 
 
 yon t!xchi(lin<? tlio day of sri'vice at o'clock in tlio forciioim, or as 
 
 soon thuruaftcr us tlm motion c;in bo lioiml, for an order declaritif,' that 
 , of (hi'n; imtrlini) Ilir n'lini-.-i and (idililioiin of all, if more 
 
 than one. pcrnou), hath [or luivoj not been duly clectc^d, and lialli [or have'' 
 nnjnHtly nsiirpcd and Htill doth [or do] usurp the ot'iico of , in tiie 
 
 Tosvn of [iir 'I'ounship of , as the cn-i- iiviii ir], in the 
 
 County \or United (Ji^iintieH] of , under tlui jirctence nf an election 
 
 held on , at , in tlio sjiid (loiinty \or Unitrd tlountics] 
 
 [and (iclifu it ix clniniril that the. ri'lotur, or thr rclntor and (iniilh,'i\ iiitil dllu'rt 
 ouqltl lo liiiri! been ri'Inrncd) that (hrrc nnntr tin- ixirti/ or jiirliis so cutitli'il) 
 was [or wcrt'J duly elected theri'to and uui,'ht to luive been retiniied iit 
 8ucli election), and declarinf^ tliat bo the Kaid relator hath iin inti'i'tist in 
 the said election as a , upon tlio following grounds tliut is to say; 
 
 Hrnt —That (for cxitniple) the said okiction was not conducted acconlin;^ 
 to law, in thin, that, etc. 
 
 « 
 
 was not duly or legally elected or 
 
 Second — That tho said 
 returned, in this, that, etc. 
 
 Third -T\n\t, etc. 
 
 (Sii/ned by the relator in per.^nn or hij C. D. Iii.i Siilicitor.) 
 
 NoTK, — Whore the intention of the relator is to impeach tiie election as 
 altogether void, in that event, as tli(! oltico cannot be chiimeil for any 
 other or others, the portion of tiio above and succeeding forms relatint! 
 thereto should be omitted. 
 
 No. 2.— Form of A ft davit of Relator. 
 
 IN THE IIIOH COUllT OK JUSTICK. 
 DIVISION. 
 
 The Queen upon the Relation of A. B. 
 
 AGAINST 
 
 CD. 
 
 , in the County of 
 
 (athlition) 
 
 I, A. B., of the of 
 
 naake oath and say . 
 
 1. I am tho relator above named, and my name, occupation, pliioe of 
 residence, nnd the interest which I have in the election ri;ferreilto in the 
 notice of motion now shown to me marked " A " are truly set forth in 
 the said notict; of motion. 
 
 2. I believe tho several grounds which are set forth in the saidnoticoof 
 motion against tiie validity of the election therein mentioned are well 
 founded. 
 
 Sworn, etc. 
 
 (h) The Judge of the County Court has no jurisdiction to give leave to siTve 
 the notice of motion when tHe proceedings are to be carried on in the High 
 Court. See Jiulv 1038 and notes. 
 
CONTIlOVEnTlCI) MUNlCII'AIi ELECTIONS. 
 
 819 
 
 tho iibiivo named 
 
 rcsiilriicr, mill tlw 
 r : HIM' Uiih' 1040J 
 iinbuis lit 
 r si'.rvicc iK'rcof so 
 \w fdi'iMioon, or an 
 ili'i' (IccUiriny tlmt 
 
 (I//IS ((/' (('/, /';' HKIIV 
 
 iiul liiiili iorliave' 
 .! of , ill the 
 
 ■(■ iinni lii'], ill tlie 
 tciico (if nil election 
 ' Uiiiti'il C^ountius] 
 laiiollwr, (iiiiliithfr* 
 r ii(ir(ii'!< Ko cnlitli'il] 
 • iiOL'U vctiiriied at 
 uith iui inti'ivatiii 
 iiids thill is til say; 
 
 ijudiictutl accordinii 
 lej^ally elected or 
 
 / C. J), his SdUcilor.) 
 
 )t;acli tlio election as 
 1)6 claimed for any 
 iin^ forms relatint! 
 
 No. H, — Form of liecvuiiizdnce. 
 
 Rule 1044. 
 
 A. B. 
 
 if 
 
 ((I(/(!i(ION) 
 
 occiiliation, place of 
 ton rc'fen-ed to in the 
 u-e truly set forth in 
 
 I in the said notice of 
 mentioned are well 
 
 . to Kiv. leave to ^ 
 Lrried on m the Uig" 
 
 IN Tin; Hioii coL-iir ok JusTiuii. 
 
 -DIVISION, 
 
 TiiK Qui;kn vi'ON thio Eklation of A. B. 
 
 AGAINST 
 
 CD. 
 
 OxTAKio, County To/' T'liited Comitieni of . ]5e it remembered, 
 
 that on the day of , in tiio year of our Lord one tlioiisaiid 
 
 eii^lit linndred and , before me, .of ,( 'bit f .Justice 
 
 of, etc.. ii;' a .)usti(u\ or a Coiinnissioner for takiuf^ bail in Hi. r Majesty's 
 Hit^li C'durt of Justice fur Ontario,] eomelli , of , and 
 
 , of , ami aeknowledt^e themselves severally and resjiec- 
 
 tively to owe to , of llirri: iu.sirt the luum' or inuiif" oj Die 
 
 jii'vaon irlidxi' ficiiion in ntmjil'iiucd iiiiniui'l), as fuilows, that is to say, the 
 said , the sum of two hundred dollars, and the said and 
 
 the sum of one hnndred dollars each, u] on condition that if the said 
 
 do prosecute with effect, the iiotiei' m motion in tho nature of a 
 tpio ifiirnnilo to bo served on an order or liat to be made at the instance 
 and ii|iou the relation of the said , iif^ainst the said , for 
 
 an order declaring,' that lie (irtluy] the said hath not been duly 
 
 elected to the ol'fict! of (Ac/v ntati' the o[lice cl(iimctl\ and reniovin).< the said 
 
 therefrom ;and {irln-rr so rlniiiii'tl hij llif rclntor) (Uelarint.! that ho 
 the said relator (or ilir jiurlji or jxirtir.-i entitled) wore duly elected, and 
 should he admitted to the said olliee; ; and if the said , do [lay to 
 
 thesrtiil all such costs as tin; said Court or the. I [u\;j,o or officer presiding; 
 in Cliiimhers, at [the City of Toronto, in theCoiimy of York , shall direct 
 ill tliat bjlialf, then this reoo^iiizanee to bo void, otherwise to remain in 
 full force. 
 
 Taken and acknowled>;ed the day and] 
 
 year first above mentioned. j- 
 
 Before me, ) 
 
 (Si[intiture of Judije or Commissioner.) 
 
 No. \.~Form of Affi.hirit of Jnstiiication. 
 
 IN THK HKIU COrUT OF Jl'STICK. 
 biVISlO.N'. 
 
 The Quken uroN tiih kelatiox of A. B. 
 
 AGAINST 
 
 CD. 
 
 1, A. B., of, etc., one of the sureties in the recognizance hereto 
 annexed, make oath and say as follows : 
 
 1- I am a freeholder (or householder, as tlw case mai/ he), residing 
 
 at. etc. 
 
 2. I am worth i)roporty to the amoimt of one hundred dollars over and 
 above what will p-av all my just tlebts [/(" ''((// in any other aetion add and 
 for every other sum for which I am now baill. 
 
%. 
 
 820 PR0CEEDIN08 WITHOUT WRIT. 
 
 Rule 1044, 3. I am not bail in any other action or proceedinj^ I'V'"'. pxcept for 
 E. F. at the suit of O. H. in the Court of, etc., in tiie hihu of, etc., 
 
 si'ttinii out all nasen in which the 'lepoiwnt in bail] . 
 
 4. And I, C. D., alno one of die Hiiretieo in the rccoKni/iiuicc Iwiciinto 
 annexed, make oath and Hay au iollows ; 
 
 5. I am a freeholder, etc. {pmci-i'd an ahorc). 
 Sworn by the above named doponentH, \ 
 
 A. B. and G. U., severally, before me, | 
 at the of , tluH day of , 
 
 A.D. 18 
 
 {Sinnature of ComiiiisKioner), 
 
 A Commissioner, etc. 
 
 (Siinidtiin' of (lepitiiciilM ) 
 
 No. '). — Form of a Judfje'H Order giving leave to nerve a Notice of Mnii. 
 
 
 IN Till', nimi couKT or justice. 
 
 -DIVISION. 
 
 The Queen upon the Relation ov A. B. 
 
 AdAINST 
 
 CD 
 
 Upon reading the notice of motion proposed to be served by A. H. of 
 , of , in the County of , on C. D. of , for an order suttiiif! 
 
 aside the the election of said C. D. as [and (if to) dechu-iiii; timt the 
 
 said (relator or other perxon named) was [or were: duly cluctod, iiiiil 
 ought to have been returned to the said offtcej, and upon rcailiiiji tlie 
 affidavits filed in support of the said notice of motion, mid also upon 
 reading the recognizance of the said , and sureties tluMciii named, 
 
 and the same being allowed as sufficient, I do order that the suid A. li. 
 be at liberty to serve the said notice of motion upon the said (). I). 
 
 Dated *his day of , 18 . 
 
 No. 6. — Form of Affidavit of Service of Notice of Motion. 
 
 IN THE HIGH COURT OF JUSTICE. 
 DIVISION. 
 
 The Queen in the Relation of A. B. 
 
 A8AINST 
 
 CD. 
 
 I, of in the (addition), make oath and say : 
 1. That I did on the day of last [or instant an tlie casr )imy be.] 
 
 personally serve the above named defendant [or defendants , with the 
 annexed notice of motion by delivering to him [or each of tliem] a true 
 copy thereof. 
 
 Sworn before me at the of , in 
 the county of this day of 
 
 A.D. 18 . 
 
 (Signature of Commissioner). 
 
 A Commissioner, etc. 
 
 (Signature of deponent.) 
 
CONTROVERTED MUNICIPAL ELECTIONS. 
 
 821 
 
 I [if HO, except for 
 1 tiie Hum of, etc., 
 
 inizance hereunto 
 
 No. 1. -Form of Disclaimer be/ore Notice of Motion Served, {(i) Rule 1044. 
 
 I, A H., do liereby diBclaim all right to the office of [Township Conn- 
 ^illdi', or an the cone may he] for the ['rownship oi, ■'!■ as the cane may he] 
 •iinl all defence of any ritiht I may have to the Hani' . 
 
 ( Siiimitiire of party ditclaiming). 
 
 Dated tliiw, etc. 
 
 To tlie Clerk of the Corporation of 
 
 No. 8. — Form of Disclaimer after Notice of Motun Served, (a) 
 
 Notice of Miitiiin, 
 
 servt'il l)y -V. H. of 
 jr ail iirdi'i- suttini; 
 I (Icclariiii; that the 
 duly clt-'cted, Kiul 
 upon I'fudiiin the 
 ion, mid also upon 
 ,ieH tliereiii luiinetl, 
 that the said k. B. 
 lie said (! D. 
 
 IN illK IIKIII COtniT OF JU8T1CE. 
 
 -liIVISION. 
 
 {Or other Court in which proceedings are ■pending). 
 The Quei;.s on the Relation of A, B. 
 
 Ad.MNST 
 
 C. D. 
 
 I, C. D., uixjn whom a notice of motion has been served for the pur- 
 pose of contestinfi my ri^^ht to the office of i Township Councillor or us the 
 canf mtiii be] for the | Township of , in the County of , or 
 
 an the etme may he] do hereby disclaim the said office and all defence I 
 may have to any rif^ht to the same, 
 
 (Siguatiire of party disclaiming). 
 
 Dated this day of , etc. 
 
 To the Clerk of the Corporation of 
 
 //■ the proceedings are pending in the High Court then add, and to the 
 Clerk in Chambers at Osgoode Hall, Toronto. 
 
 Or if the proceedings are pending in a County Court then add, and to the 
 Judge of the County Court of the County of 
 
 
 
 No. t). — Form of Older for Trial of an Issue 
 
 i ,(.s the cd.sv limy bcj 
 (fendants, , with the 
 ach of them] a true 
 
 ature of deponent.) 
 
 IN THE HIQH COURT OK .ICSTICK. 
 DIVISION. 
 
 The Queen upon the Relation of A. B. 
 
 AGAINST 
 
 CD.. 
 
 Upon the application of Her Majesty the Queen upon the relation of 
 
 A. B. to Bet aside the election of chosen upon the day of 
 
 , to be for the Township of {or as the case may he), 
 
 in tlie County of . and for an order declaring that he the said 
 
 A. B., [or that he the said A. B. and C. D,, etc., were, or that C. D., etc., 
 
 «) See notes to /Jufe 1041. 
 
 X 
 
^T'^immm 
 
 822 
 
 PROCEEDINGS WITHOUT WRIT. 
 
 Riile 1044. was duly elected, and ought to have been returned], it hath become 
 material to ascertain whether {here xtdfe concineh/ the insues to he tried); 
 and that the trutli of such matters as aforesaid should be found by a 
 jury : I do, therefore, pursuant to liiilc 1043 in such case, made and 
 provided, order that an issue be tried between the said relator and the 
 said C. D. before the Judge of the County Court of the County of 
 and a jury of the said County, and that the question [or questions] tO' 
 be tried sliall be wiiether (here utate the issiicH). 
 
 Dated, etc. 
 
 No. 10. — Form of Indur/^einent of Verdict thereon. 
 
 I hereby certify that on the day of , before me, L. M., 
 
 Judge of the (!nunty Court of the County U>r United Counties] of , 
 
 came as well the within named relator as the within named {the 
 
 other pitrti/ or p irliea) by their attornevi^ (or as the caxe may he), and the 
 jurors of the jury, before whom the said issues were tried, being sworn to 
 try the matters within mentioned on their oath, said that, etc. (set out 
 fiiuliugs). 
 
 4» 
 
 judgmj;nts. 
 
 No. 11. — Form of 'futJiim^nt in favour of the Relator. 
 
 i 
 
 IN THE HIG;I COUltX OF JUSTIt'E. 
 DIVISIOM. 
 
 TlIR QUKEN ON THE TIkT-ATION OF A, B. 
 AltAINHT 
 
 CD. 
 
 Be it remembered, that on the day of , in tlie ycivr of 
 
 our liOrd one thousand eiglit hundred and , at the Jmljies* 
 
 Chambers in the City of Toronto, before me, , Cliicf Justice nf 
 
 the Queen's Bench [or Common Pie is or Chancellor of Ontario or .ine 
 of the Justices of tlie Iliuli ('onrt of Justice], Ciime as well tlic above- 
 named rcdator by , his attorney, as the above-namcid by bis 
 for their I attorney, and service of the notice of motion hereunto uuuexid 
 having been duly i^roved niion nllidavit,* and njjon the said (biy muiI upon 
 other days tliereafter, at liis Chambers anu-csaid, having lioaivl and read 
 the notice of motion and ))roofs of tlie said I'elator, touching and con- 
 cerning the nsurjjation by liini alleged against tlie said of the 
 office of , in the said notice of motion mentioned [and (/Y ••-•'>) tlw 
 election of (the parti/ or parties named) thereto' , and the answers ami 
 proofs of the said ; and having heard the said parties by their 
 counsel (or an tlie case maij Ite), and ujion due consideration of all ami 
 lingular the pi-emises, now, that is to say, tliis day of i 'd 
 the year aforesaid, 1 do adjudge and determine: 
 
CONTROVERTED MUNICIPAL ELECTIONS. 
 
 823 
 
 Pirat— That the said relator had, at the time of his making; his afore- Rule x044. 
 said complaint, an interest in the election to the said office of 
 as a 
 
 .Second/— Tliat, etc. 
 
 r/ii«i— That, otc. 
 
 Fourth -Thiit tlio said hath [or havo] usurped, and doth [or do] 
 
 still usurp the said office, and that lie [or tlieyj be removed therefrom 
 [or that the election of to the said office was void, and that he 
 
 [or they I be removed therefrom {(in the jmUjment may Ijc)] . [And that the 
 relator (or tlie said [iiawiiin the P'irty or purtica whosr. clertiuu in oDlrmcd, 
 when he or thry arc ailjudycd to he entitlt'd to the said ofiiee) was (or were) 
 elected thereto, and ou<;ht to havo been returned, and is (or are) entitled 
 in law to be received into, and to use, exercise, and enjoy the said office :] 
 And I do adjudf^e and determine that the said do not in any 
 
 manner concern himself [or themselves] in or about the said office, hut 
 that he [or they] be absolutely foi'ejudticd and excluded from further 
 iiRin^or exercisint? the same, under pretence of the said election [and 
 further, that tlie said (naminy the rehitor or parties whoxe election in affirmed) 
 be [or be rospectivelyj admitted to the said oOice in his [((rtlicir) place or 
 places] ; And I do further order, adjudge, and determine, that ihe said 
 relator do recover afiainst the said his costs and chai-^es by h.nn 
 
 in and about the said relation and the prosecution thereof expended, to 
 be taxed in the said Court, (a) 
 
 All which the said notice of motion and the said judf^ment. and the 
 statements, answers, and proofs of the said relator and of the said , 
 
 and all other thinj^s had before me touchiii}^ the same, 1 do hereby 
 certify and deliver into the said Court, according to the form of the 
 statute in such case made and provided. 
 
 • (Siyuature of Jitdtje). 
 
 No. \'2.—Form of Judyment for Defendant. 
 
 {Profi'ed ax in the joreyoiny form to the *) 
 
 Thereupon now at this day, that is to say, on the day of 
 
 aforesaid, at the Judges' Ciiambers at Toronto afoiv-said, all ami singular 
 the notice of motion and proofs of tiie said relator, and the answers and 
 proofs of the said being aumi and fully understood, 1 do consider 
 
 and adjudge that the said oflice of so claimed by him [or them] 
 
 the said be allowed or adjudged to him [ortlK^m]; that the said 
 
 bu dismissed and diseh,i,rg(>il of and from the premises above 
 charged upon him [or them I; and also that he [or they] the said 
 do recover itg.iiusc the said relator his |or their] costs by him [or them 
 respectivdy ' laid out and expendi'd in derending himscdf (or themselves] 
 in this bdhaU'. (a) All which, etc, {ax in the judyment for the relator). 
 
 No. l;i. — Form to ai.did r» .hidymenr lelieii coxlx are taxed. 
 (Prnnwl ax in Fornix 11 ,t i;.' /.) {a). , . ' 
 
 Afti'rw.ird-i, th.it i< to say, on th;> day of , in the 
 
 year of tlic reign of our Lady t:ii! Queen, conieth the said , and 
 
 prayeth that his [or their] said costs, so as aforesaid a<ljudged to him [or 
 
 (rt) Sw'fiinn to !)(■ added when costs are taxed i,i/ra No. 13. 
 
T" 
 
 ■■ 
 
 824 
 
 PROCEEDINGS WITHOUT WRIT 
 
 Bnle 1044. them] , be taxed and assessed according to the form of the statute in each 
 case made and provided, and thn said costs of the said , in and 
 
 about his \or theirj prosecution [or defence] aforesaid, [and {when the 
 Returnhig Officer in a parti)) of the said , in and about his defence 
 
 aforesaid], so as aforesaid adjudged to him | or them ] , are now here accord- 
 ingly taxed and assessed as follows, that is to say, the costs of the said 
 at the sum of [and the costs of the said (when 
 
 Returning Officer entitled thereto), at the sum of ] , and the said 
 
 (relator) in mercy, etc. 
 
 EXECUTIONS. 
 
 No. 14. — Form of a Writ of Matidamm to a Corporation. 
 
 To remove the pemoii or persons, being less than the whole number of memben 
 of any Municipal Corporation, whose election is adjudged invalid, and to 
 admit the person or persons lawfully elected. 
 
 Victoria, etc.. 
 
 To the Corporation of the Town [Township or City] of 
 
 Whereas on the day of , in the year of our Lord one thousand 
 eight hundred and , at the Judge's Chambers in the City of 
 
 Toronto, before , Chief Justice of the Queen's Bench [or Common 
 
 Pleas, or the Chancelhn' of Ontario, -ir one of the Justices of our High 
 Court of Justice for Ontario], 't was by the said Chief Justice [or Chan- 
 cellor, oc Justice] , adjudged and determined that , of , had 
 usurped, aiid did then usurp, Ihe office of [and that was (or 
 were) duly elected thereto, ana ought to have been returned, and was [or 
 were) entitled in law to be re'jeived into, and to use, exercise and enjoy 
 the said officel j , all of wliich has by tlie said Chief Justice [or Cliancellor 
 or Justice] been duly certified into our High Court of Justice, 
 Division, pursuant to the statute in that behalf. Now, we, being willing 
 that speedy justice be done in this behalf, as it is reasonable, command 
 that the said (the person or persons, naming him or them, ivhose election has 
 been declared invalid), do not in any manner concern himself [or them- 
 selves), in or about the said office, but that he [or they] be absiolutely 
 forejudged, removed, and excluded from further using or exercising tlie 
 same, under pretence of his [or their | election thereto.* [And we do 
 further command that the said {the person or persons, uaming him or them, 
 who has or have been adjudged lawfully elected) be forthwith iidmitted, 
 received and sworn into the said office, to use, exercise and enjoy the 
 same.] And we do hereby command you, oiid every of yon, to obey, 
 observe, and do all and every act, matter, and thing that may be neces- 
 sary on the part of you or any of you in the premises, acconhng to the 
 purport, true intent and meaning of these presents, and of the statutes in 
 that behalf, and that you make known to our High Court of Justice. 
 Division at Toronto, on the day of , how this writ shall 
 have been executed. 
 
 Witness, etc. 
 
CONTROVERTED MUNICIPAL ELECTIONS. 
 
 No. 15. — Fortn of a Writ of Mandamus to a Corporation. 
 
 When neither the election of the person or persons (less than the wliole number 
 of member* of the Municipal Corporation) who has or have been returned, 
 nor the person or persoiu claimed to be returned is or are held valid, and 
 for a new election. 
 
 Victoria, etc. 
 
 To tlie Corpt/ration of , and to any Raturniii" Officer or other 
 
 person or persons to whom it shall of riglit belong to do any act necessary 
 to be done, touching the election hereinafter commanded to be lield. 
 
 Whereas {as in the last precedent to the asterisic, omitting the part between 
 the brackets, at t> and then proceed as follows :) And we do further command 
 that you the said Corporation, and any Returning officer or other person or 
 persons, or spch of you to whom the same shall of riglit belong, that you do, 
 pursuant to and accoi'ding to the statute in that behalf, cause an election 
 to be as speedily held as shall be lawful, for the election of a person [or 
 persons] in the place or stead of the said , who has [or have] been 
 
 removed as aforesaid; and that you, or such of you to whom the same 
 does of right belong, do administer to the person [or persons] who shall be 
 ao elected the oath [or oaths] , if any, in that behalf by law directed ; and 
 that you admit, or cause to be admitted, such person [or persons] so 
 elected into the said office, and that yoii, the said Corporation, do shew 
 how this writ shall have been executed to onr High Court of Justice 
 Division at Toronto, on the day of 
 
 Witness, etc. 
 
 825 
 
 Rule 1044. 
 
 No. 10. — Form of a Writ of Mandamus to the Sherifi'. 
 
 Where the elections of all the members of any Man: ipal Corporation have 
 been luljwiped invalid, and. for che admission of those adjudged to have 
 been leijiiHy elected. 
 
 VicToniA, etc. 
 
 To the Sheriff of the County {or United Counties) of 
 
 GllKETINO : 
 
 Whereas (the same as in Form No. 14 to the end of the words " adjudged 
 and determined," then say) that the election for elections] of all the mem- 
 bers of the Corporation of , returned as elected at the election [or 
 elections] of members of the said C]orporation held (describing the time or 
 limen (iiid place and places of such election or elections) was [or were] invalid 
 or void in law, and tliat (naming them all) had usurped ( proceeding as in 
 form No. It, adopting the plural form to the asterisk, and then as follotvs :) 
 And we do hereby further command you the said Sheriff, that you do, 
 pursuant to the statute in tliat behalf, admit or return and swear into, or 
 cause the said (naming the person adjudged to hare been duly elected) 
 to be forthwith admitted or returned, and sworn into the said office, to 
 use, exercise and enjoy the same, and that you do and perform, or cause 
 to be done and performed, all and every act or acts, thing or things 
 
826 
 
 PROCEEDINGS WITHOUT WRIT. 
 
 Rule 1044. necessary to be done and performed in the premises. And we hereby 
 command and strictly enjoin all and every person and persons to whom 
 the sumo sliall lawfully belong, to be aiding and assisting you, mid to do 
 all and every lawful and necessary act to be done by him or tlium in the 
 premises, according to the purport, true intent, and nieaniiiy of these 
 presents, and of the statute in that behalf ; a;id how you hIhUI have 
 executed this writ make known to our High Court of Justice 
 Division at Toronto, on the day of next, and have you then 
 
 tliere this writ. 
 
 Witness, etc. 
 
 No. 17. — Form af Mandamus to the Sheriff. 
 
 When the clectionn of all the members of any Municipal Corporation have hten 
 adjudged invalid, and requiring othern to lie elected. 
 
 Victoria, etc. 
 
 To the Sheriff, etc., {an in the form No. 14 to the asterisk, omitting the iiarl 
 between the brackets, at t, and adoptin<j the plural form, then condudimj as 
 follows :) And that you do every act necessary to be done by you in order to 
 the due election and admission of members of the said Corporation, in the 
 place and stead of the jiersona whose elections have been so dechued 
 invalid ; and we hereby command and strictly enjoin all and every person 
 and persons (continuing as in the last precedent in the end). 
 
 Witness, etc. 
 
 No. 18. — Form of Fi. Fa. Ago.insl Defendant for Relator'' s Cu>ii». 
 
 Oniauio. 
 VicTOiiiA, etc. 
 
 To the Sheriff of the County of ; 
 
 GuEi-.TiMi : 
 
 Wo command you, that you levy, or cause to bo levied, of the fionils 
 and cliattc'ls of CJ. U., of [add the description of I lie 11,'liiniiiiii 
 
 Olfirer, where the execution is against him), the sum of . wliicli liuth 
 
 been lately a(ljud;.;od to A. H., of , in our High Court of .histice, 
 
 Division, at Toronto, according to the form of the stafntc in 
 sucli case made; and |)i'ovidc!d, for his costs by liini laid out luid i>xi)endL'd 
 in the ])i-osi.'cutiug of a ccrt;iin motion in the nature of a (//(o «'(/n'(iH((i, 
 lately ))onding hofore our said (Join't ag.ainst , at the relation of 
 
 the said A. B., for usuri)ing th(! oHicc of , in our <if i 
 
 in your t'ounty Uidil, irlien the llcturning Ojlicer is a pnrtij. to which 
 )m)coeding tlio said was nuid',! a j)arty [, and wlieroof the said C 
 
 D. (etc ) is ' (IV are] convicted, as in our said Court a])p<>iirs of record, lUid 
 that yon have that money bc'foro our Division of our said Court, 
 
 at 1'oronto, aforesaid, and have you then there this writ. 
 
 Witness, etc. 
 
CONTROVKRTKD MUNICIPAL ELECTIONS. 
 
 82T 
 Rule 1044, 
 
 liclator'^ Costi. 
 
 No. Id.— Form of FL Fa. Against the Relator for the Defendant's Costs 
 
 Ontauio. 
 
 Victoria, etc. 
 
 To the Sheriff of the County (or United Counties) of 
 
 GUEETINQ : 
 
 We command yon, that you levy, or cause to be levied, of the floods 
 and chattels of A. li., of , the sum of , which hath 
 
 lately been atljndj^'od to C. D., of , in our Hij^h Court of Justice, 
 
 Division, at Toronto, accordiii'^ to tho form of the statute in such 
 case made and provided, for his co.-its l)y him l:iid out and expended in 
 hifl defence upon a certain motion in the nature of a quo todrrdiiti), made 
 unto our said t!ourt ai,'ainst tha said C. D., upon the relation of the said 
 
 A. B, for usurping! the olilioo of in our of , in your 
 County [or Counties ;] [//' thi- Returning Oiliri'r Inn Jipcn made a p."'l;i, ud I 
 //I'M, to which proceediuf^ 10. F., tlie ixetnrninj^ Officer at tin; eli".'tion of 
 the said C. D. to the said oHice, was made a pai'ty] , wlu.rcof tho said A. 
 
 B. is convicted, as in our said Court a[)puai's of record ; and tluit you have 
 that money before tho Division of our said Court at 'J'oronto, 
 immediately after tho execution thereof, to satisfy the said C. 1). for his 
 costs aforesaid, and have you then there this writ. 
 
 Witness, etc. 
 
 N. B.—Wlirn the Returninri Ofjicer has been made a iiarty, and is entitled 
 to costs, the fieri facias must be framed accordingly. 
 
 : if I 
 
IMP 
 
 m^^ 
 
 No ea. re. 
 to issue. 
 
 CHAPTER XII. 
 
 EXTRAORDINARY REMEDIES. 
 
 1. Bailable Proceedings, 1045-1097. 
 
 (i) An-est, 1045-1088. 
 (ii) AbscondiiKj Dehtio-x, 108!)- 
 1097. 
 
 2. Replevin, 1098-1111. 
 
 3. Mandamus, 1112-1129. 
 
 (i) l7iActionK, 1112-1110. 
 (ii) On motion, 1117-1123. 
 (iii) Application in Chamben, 
 1124-1129. 
 
 Tbo- 
 
 4. Injunctions. 1130, 
 
 5. Intekim Preseiivation ok 
 
 PEHTY, 1131-1131). 
 
 6. Phohihition, 1137-1139. 
 
 7. Ceutiouari, 1140. 
 
 8. iNTEBPLEAnER, 1141-11C9. 
 
 (i) Generally, 1141-1161. 
 (ii) In County Courts, 11621166. 
 (iii) Hy lUiilees and Curriers, 
 Ii67-11G9. 
 
 1. Bailable PRocEP:mNG,s. 
 
 i'ir.rhnn shall issue in 
 "• umde in an actiou 
 V. a writ formerly had. 
 
 (i) Arreat. 
 
 ll>4*>. No writ of capias ad rei'h 
 any case, l)ut an order for arre-ji, ■ 
 which shall have the same efTect as ;■•! 
 
 An order for arrest will only be gr.antfcfl \\\ o w.ses, in wliidi a writ of 
 ca. re or a writ of ne exeat niigiit l)a\o formerly issiieil. Tn order toentitle.t 
 plaintiff to an order for arrest, therefore, he niuist shew to the satisfaction of ;> 
 .fudge of the High Court, or to the .Judge or acting .fudge of a County Court, 
 by the affidavit of himself or some other person that he has a cause of action 
 against a defendant liable to arrest, to the amount of iSlOO or ujiwiirds, or th.it 
 he has sustained damage to that amount, and nnist also by affidavit shew sucli 
 facts and circumstances as satisfy the .Judge that there is good and probable 
 cause for believing that the defendant, unless he be forthwith ai)preheiided, is 
 alwut to quit Ontario with intent to defraud his creditors generally, or tiie 
 nlaintifF in particular; whereuixm the .Judge may order the defendant to k' 
 held to bail for .such sum as the .Judge thinks fit : R. S. O. c. 67, s. 1. 
 
 A writ of ne exeat was a writ formerly issuable in Chancery to restrain » 
 defendant from leav'iig the Province in cases where the plaintiff had an equit- 
 able money demand against the defendant and there was reason to aiiprehend 
 that the defendant intended to quit the juri-sdictiim. A party who, according' to 
 the former practice, was entitled to a tie exeat is now to proceed under 
 R. S. O. c. 67, s. 1 ; lb. s. 3, aa moflified by these Rules. 
 
 R. S. O. c. 67, s. 1, applies only to actions against persons liable to arrest • 
 see R. S. O. c. (>7, s. 5. Some j)ersons are i)rivileged from arrest in civil 
 proceedings. The i)rivilege from arrest is either temporary or jwrnianent. 
 Among those peniianently i)rivileged are — members of the Royal 1 aniily, and 
 
BAILABLE PROCEEDINGS. 
 
 829 
 
 )IES. 
 
 1130, 
 
 ESEllVATION or PeO- 
 
 1131-113(j. 
 , 1137-1139. 
 
 1140. 
 
 n, 1141-1109. 
 illij, 1141-llCl. 
 )i/(/ Courtu, 11()2-1166. 
 tiiecs and Carriers, 
 IG'J. 
 
 'mil shall issue in 
 nade in an action 
 vnt formerly had. 
 
 ne.x, in wliicli a writ of 
 In oidir to entitle .1 
 to the satisfaction of 1 
 (Ipe of a County Court, 
 If lias a caiiPc of action 
 KM) or ui wards, or that 
 ) by affidavit sli.-w audi 
 •e IS pwxl and jirobable 
 •tliwitli aiiprehended, IS 
 litors generally, or the 
 Ut tht! defendant to \k 
 . (). c. 07, H. 1. 
 Chancery to restrain a 
 . plaintiff had an equity 
 viiH reason to ai)|irehen(t 
 l)arty who, accoi-dinK to 
 now' to proceed undw 
 
 iiersons liable to arrest ; 
 
 (1 from arrest ni civil 
 
 mporary or nernianent. 
 
 the Royal Family, and 
 
 the servants of the Koyal HoUHehold ; peers and peeresseH of the realm of Rule 1040. 
 England in certain cases ; foreign ainbjissiulors and their servants ; Judges : 
 see Arcti Pr. Htli ed., p. 145.5, and married women ; R. S. O. c. O", s. 7. Among 
 those wild have a temi)orary privilege from arrest are members of the Legis- 
 lative Assenil)ly during the he.ssion of the House, and for twenty days before 
 and twenty days after ; R. S. O. c. 11, s. 4H, h-s. 10; probably also mend )ers of 
 the Senate, and I louse of Commons, of Canada during the sittmgsof I'arliament 
 for forty days before and forty days thereafter : see Arch. Pr. 14tli ed., p. 14r)(), 
 Barristers while attending the Su|(erior (Courts for the iniriM)se of being 
 t'litfaged in tiic business of the same, or while attending circuit, and for this 
 pui'iwse aiiri'iiil is coutinuous from its comiiien(!ement to its termination : see 
 Arcn. I'r. 1 lili I'l., )>!>. 14^4-5. A solicitor is also ])rivileged while attending 
 Court, or any of tiu' otHeers of the Court, and in going to, and n^turnin^ there- 
 from ; also Coroners « liile executing their office. Parties to suits and witiussses 
 while going to, attending at, and returning from Court. Bail are also privileged 
 from arrest in actions on bail bonds, re|)levin bonds, and recognizances of bail : 
 liiviiiinii v. J{i>hs'„i, (i T. H. 33(); Oniioml v. /innd//, 1 Salk. !» ; Mellinh v. 
 l'ellifiiii;i<T. H. 4.-)(>. Hut if the plaintiff obtain judgment on such bond or recog- 
 nizance lie may hold the defendant to bail in an action on the judgment : /'nnc/cr 
 'jasl v. J)iiri.-i, S T. H. M.'). Kxeeutors and administrators are also privileged 
 from arrest in actions 1 in mght against them for the debts of the deceased : unless 
 they iiave made themselves personally liable for the debt : see Arch. Pr. 14th 
 ed.. ]). I4;")'.l. A defendant only indebted for costs would seem not to be liable 
 to arrest : R. S. ( ). c. (i", s. (i. As to sailors in Her Majesty's service : see Impl. 
 Stat 211 it 80. Vict. c. Kl'.), s. !t7 ; and as to soldiers see the annual Mutuii/ 
 Ad: Arch. I'r. 14th ed., p. 14(i()-l. 
 
 Where a defendant has a foreign dcnuioile and conies temporarily within the 
 JMrisdictioii, lie is not liable to arrest, in respect vf a tort committed within the 
 jurisdiction: /tin' v. I'litclni', 13 P. H. 40; nor in respect of a debt 
 cimtracteil in the ciuintry of his domicile : Sndtli v. Sniilli, it P. R. 511 ', 
 provided \\v is .ibout to retiiiu to the eoiiiitry where he is domiciled : liitlUt v. 
 li'ismfihU, S \\ K. 175. If lie is going to another country he may be liable to 
 ;iiwst : III. Hut where a defendant contracts a debt in Canada and then 
 absconds to, and acquires a domicile in, a foreign country, he may on his 
 suliscquently coining witiiiu the jurisdiction be held to bail in respect of a debt 
 so contracted ; Krrnh'iiiini \. .\li/,i'/liiit, H) P. i{. T22 ; ■'"'</ ride Clciiicuts v. ' 
 AV/'///, 7 I", ii. 103; S/,n'ffr v. Sf,(i>f/>r, U'furv Proud foot, .7., May 15,10, 
 1W3. Pecuniary !i;ibility arising from a fraud committed by the defendant is- 
 a claim for wiii'ch he may be arrested : Hunter v. Mniiii/jiii/, (i Gr. 433. A 
 trustee not in default, is not liable to arrest: ('o/iVisan v. H/tii/mfieli/,'2{) Ch. I). 
 .■Ml ; and where a trustee is ordered to pay money after service of the order, 
 he is not in default until the order has been served, and he has failed to comply 
 with its terms : Hi. 
 
 .V defendant in an action for alimony is liable to be held to bail, if he is about 
 to quit Ontario with intent to defraud his creditors in general, or the plaintiff ' - > 
 
 m particular. The amount for which he may be held to bail is a sum sufficient 
 to coyer future alimony for two years besides arrears and costs, but may be 
 less, in the discretion of the Court or .Judge: J{uleH)SS. The lU'der for arrest 
 may be obtained in a proper case before, or after judgment. When a writ of 
 itf emtt had bei^n granted bi'fore decree, it was held to continue in force after 
 decree: Miiali.iintd v. Mardoiioh/, T} U. C. L. J. 00. Wherein an alimony 
 action the defendant had been ati'ested and held to bail ; on an application ft)r 
 his discharge, the Judgi^ looked into the merits so far as to .see if the plaintiff 
 could reasonably expect to siicceecl in lier case ; and the defendant having 
 ( isplaced the /)/■///(,( /i(rie case niiule by the plaintiff, he wan ordered to be - ' 
 discharged : Miirjilicrsnn v. Afacpliersoh, 2 Chy. Ch. 222. Sucli a practice is, 
 however, ojien to objection, as to some extent involving tlie trial of the action 
 oil the merits on an interlocutory application. 
 
 The Master in Chambers, and Local Masters (not being County Court .Tudges), 
 lave no jurisdiction to grant the order for arrest: Rtdes 30, s. 1, 138. Hut 
 tnunty Court .Fudges niav grant such orders in actions pending in the High 
 Courts: K.S.O.c. 07, S.I . 
 
¥ 
 
 ■830 
 
 Rules 
 1046-1049. 
 
 Order tor 
 arrest. 
 
 ^ 
 ^ 
 
 EXTRAORDINARY REMEDIES. 
 
 1040. In case a person is to bo arrestecl and held to 
 specinl hail, the process shall be by order of the Court or a 
 Judfj;e, in the words or to the ell'cet of Form No. 155 in the 
 Appendix, whicli order yhall bear diite on the day on which 
 it is made, and nuiy bo delivered to the Sheriti' of any 
 County in Ontario for e.xecution. K. S. 0. 1877, c. 50, ss. 
 4, ;iO,"iil. 
 
 The form given in tlic .\|iii(ti()ix ii]icjii's to cuiitciiiiilatc lli;it llic uidcr shall 
 be directed to a piirticular iSlicrill' i.j lie iiiinied in the order. W lure jt is 
 douljiful in wliicli ('(Hinly tlie defeiidaiil. may '>e found, provisidu is iiiadc liv 
 Ili>!i' Kits fur tlie i.s.sue of cuiieiiirent or dii|illeale orders, ('oncurreiit (inlcr.-. 
 may, as in tiie ease of coneurrent. writs, he addressed to dilfereiit .Sli(.ri)l'>. 
 Formerly wiieii a writ of ca/iin.t ml irsiKniiU inliiiii. issued, it was not ucecs.'iiiry to 
 issue an ordinary writ of summons so fur as tlie defi iidant ancsled was 
 coiicei'ned, but the issue of an order for arrest, is not now intended tiMlis|»'iiM' 
 with the issue of a writ of summons. 'I'he writ of snnunons .'^Imukl i,i' 
 issued and duly indorsed, and served on the defi'ndant hefuie ei- aldiig witli 
 the order for his arrest. 
 
 Oi.lors to 
 be in force 
 
 
 104T. Every order for arrest slnill be in force for two 
 
 twomontiis months from the day of the date thereof inclusive, and no 
 
 newabie.'^ longer; but on the expiration thereof a new order maybe 
 
 obtained in the nnmner directed by Tltc Act rcspcctiiiji Arrest 
 
 and Imprisonment Joy Debt. li. S. 0. 1877, c. 50, s. '2!) ; J. A. 
 
 Eule 9. 
 
 A new order can only be obtained on jtroof of the like facts and cir- 
 cumstances as were necessary in order to oljtain the former ordcir ; see K. S. 0. 
 c. ti7, s. 1. It would seem th;it the affidavits use<l on the former a|i|)licatioii 
 could not be used on a second aiii)lieation ; at all events, so far as tlicy related 
 to facts which were snsceiitibU^ of change, a modification, since the date of tlu- 
 affidavits being sworn. 
 
 The two months within whicli an order for arrest is in force are calendar 
 months : U. S. O. c. 1, s. 8, s-s. 1,') ; 51 Vict. c. 2, s. -t. (()). An order made on 
 the H)th day of the month would e.\|)ire on the Dth ila;- of the second nieiitli 
 theicaftir. The day of the date of the order being incli.ded. 
 
 reunnicrs 1<>^'**' ConcuiTent or duitlicate orders for arrest maybe 
 
 mayissua. issued from time to time in like manner and form as the 
 
 origimil order, and shall be in force for the K.ime jjeriod as 
 
 such original order and no longer. K.S.O. 1877, c. 50, s. 32. 
 
 So far as regards the SherifF to whom the order is directed, the cemiirrciit 
 order wcmld vary from the original order. 
 
 Copies, etc. 
 to bo 
 served. 
 
 lO ISI. Every order, and so many copies thereof as there 
 are persons intended to be arrested thereon shall be delivered 
 with the original order to the Sheriff or other ollicer to whom 
 the order is delivered ior (xecntiou, and the })laii]tilf or his 
 solicitor may direct; the Sheriff or officer to arrest one d' 
 more of the defendants therein named, which direction shall 
 
HAIIiAIUiK I'llOCRKDINGS. 
 
 831 
 
 ocl and held to 
 
 the Court or a 
 
 I No. 155 ill the 
 
 le (lay on which 
 
 ShrritT of any 
 
 1877, c. 50, S8. 
 
 f th 
 ' (in 
 
 1.1 
 
 . C 
 t(. ( 
 : \vi» 
 i( 111 
 1- iiit 
 
 sui 
 
 t bt: 
 
 lit till' (iiilcr .iliall 
 Icr. WluTo it is 
 visidii is iiuidcliy 
 (iiic'iuTciit iiiclcr.-, 
 liUVivut Slirriffs. 
 
 S IK it llCM'SSiU'V tl' 
 
 iiiit ;iri('sU'd Will 
 cliiicd tixlisiMiM' 
 nun ins slmlild i'l'. 
 fuiv or alciiig witli 
 
 I in force for two 
 nclusivc, and no 
 ew order may he 
 ' n'sin'ctinii Armt 
 c. 50, s. 2i); J.A. 
 
 Ir. lil<c facts and cir- 
 iK'i- cmk'r: •'«' H-S.O. 
 tlie foniiiT uiipliwvlion 
 <, so far as tlifv rclrtted 
 I'l, siuw' the date of tin- 
 
 is ill ftircc are calendar 
 ()). All (inler made (111 
 I- (if tlic second nwmtli 
 I'.ded. 
 
 for arrest maybe 
 
 and form as the 
 
 he same period as 
 
 1877, c. 50, s. 32. 
 
 directed, tlie cdiieiirreiit 
 
 OS thereof as there 
 1 shall be dehvered 
 
 lerol'lieertowhom 
 the plaintiff or his 
 .■r to arrest erne (J 
 
 ich direction Bliall 
 
 l,e duly obeyed by the Shoriff or ofHcer. E.S.0. 1877, c .50, fj^g^^^^o^ 
 8. 8;}. ■ 
 
 Till' (llreelidii to till' Sheriff sliould he made liy ilid()r.-.eiiieiit nil the order, 
 
 mid sii^iii'd liy llie solicitor. 
 
 |(»50. The Sheriff or officer s^liall, within two months s^i''^;-i«'^to 
 from the day of the date of the order for arrest, hnt not after- witnin two 
 wards, exeent(! the same aceordin<^ to the exi(J!ency thereof, In,'',', ,lato. 
 and shall upon or immediately after the exeention of sneh 
 order cause one co))y thereof to he delivered to every person 
 whom he is direeted to arv(>st. and shall exhibit the original 
 order to each. R. S. 0. 1877, c. 50, s. 34. 
 
 After thnl.ipse of two calendar mouths from itHd.ite, iiicludiu.t; the day itliears 
 date, tlie order ceases to he in force: see /I'^'/c 1(U7. Allhou^di the order is in 
 force for two uioiiths, y(^t if the .Sheriff execute it liefore th(^ exjiiratioii of tins 
 two iiiiiiitlii the plaintiff may immediately after its I'xecution olitaiii an order 
 mi tlie Sheriff to return the order for arrest; Arch. I'r. lltli ed.. .S(l(). 
 Hpcanni it he so ruled after the |ilaiiitiff has taken an assisrunieiit of tlu' hail 
 Iwnd, iir.ivided it he a valid one under L'.'J 11. (J, c. it, or where he accepts a 
 njiviyit or otiier security from the d( feiidant without the iirivity of the Sheriff: 
 n., and .see Rulf 1(l.-)(i, note. 
 
 10»>l. Any person arrested upon any order for arrest 
 may apply at any time after his arrest to the Court, or a 
 Judge, for an order that he he dischar<T;ed out of custody ; 
 and sueli Court or Judge may make such order thereon as 
 tn such Court or Judge seems fit subject to appeal ; and the 
 Judge or aeting Judge of a County Court making any order 
 lO arrest, whether in the High Court or in his own Court, 
 shall in respect to such order, and the arrest made there- 
 upon, posse.ss all the powers given to a Judge of the High 
 Court under this Rule, and nniy in like manner, on appli- 
 cation to him, order the defendant to be discharged out of 
 custody, or make such order therein as to him seems fit; 
 and any such order made by a County Court Judge may be 
 discharged or varied by^ a Divisional Court, ^ce \\. 8. 0. 
 1877, e. 50, a. 3(5. 
 
 Usually on an ap|)lication t) a .liidcre to discharge a defendant, the Judge 
 will not. wild 1 III,' attidaxits iijion wliich the order for arrest was made, ai'e 
 \mui'i jii:ir sutHci.'ut, diseliary:!' the defemlaut on artidavits heiny^ filed 
 ne^ativinijT his iiiteniion to leave fJntario : Mc';it,tli)i v. C/inc, 4 I*. K. 1;>I ; nor 
 (111 the gi'ijuiid that the p'aiiilitl' "s cause of ai!ti(ni\vas not siifheieiitiv shown: 
 Urri.vm v. Coiiltiin, !) I'. 1{. ](i; T, ml v. Comxtorl; (i LT. C. L. .). :.':!."): Jiinik 
 "'Mnatrnil v. Cam/il'i/', 'J C. \j. .1. IS; Jouck v. f.'/v.s'f', iTi V. C. <..». V,. rm-, 
 D'Hfl, \: I),(imait, W V. W. 105: h'lt see Jirown v. liiilitdl, 1.'? C. 1'. -l.',7. P.ut 
 ^v.H'i'c it appears that the defendant, though ahout to ]ea.ve Outai'io, was 
 ni'V(>rtlieless on nrrounds distdosed hv the defendant, r.ot liahlc to arn st, he 
 way be dis(;lmr-(.d : .see JliiU lOJo, note; and where the idaintiffs (.aiise of 
 .ictinn Was dcniiifl l,y the defendant and not corridiorated hv the plaintiff, the 
 uwendant was discharged ; Jjomyan v. Short, j 2 P. Jl. rm'; and the omissiuu 
 
 Defendant 
 may apply 
 to a Judge 
 to lie dis- 
 oliargod 
 from cus- 
 tody. 
 
 Power of 
 .Judge. 
 
 Court may 
 (iisc'liaigi! 
 (u- vary 
 .hulge's 
 order. 
 
 
 
832 
 
 I'XTIiAORDINARY liEMEDIEB. 
 
 '^*!&, 
 
 ^^ 
 
 
 . law IH not a 
 ..•.■.. 1 ... „,, ,,,,j, ^ 1...... 1,,, ,,„ .v.Mw.i..., . iil(is.i V. lidliii, 1 1'. H. '_'74. Wlicn till' 
 
 aftidiiv it on wliicli tlic (irdcr for arrest was iiiatlt- \va.s entitled in the lli(,'liC'(iiiit 
 of .histii^e witlioiit naming; any Division it was held tliat the defect Wii< 
 ameiidahle ; l{<ili< rtnaii v. Cnii/tiiv, xii/ii-ii ; and see H, S. <). c. (17, s. '2 ; Ellirhi\ 
 Wiilh,,,, •> V. H. 117 ; Mol/uii V. Slian; 5 P. H. lViO : /></w. /• v. /;,/«/,//, r. 1'.' |;! 
 .'{r)('i. 'I'lie order for ai'rest will not !«• set asiflf tor irregidarity in the altiihivit, 
 after the prisoner has esorjiid: h'l-fir v. Afnril/, Tay. 41MI. Where tlir 
 affidavit to hold to liail was made while the defendant was in tlie United 
 States, and was left here to l)e used in cast^ he slionhl couie (pver, the arruH 
 was set aside: I'li-.ciis v. /{itch it, l)ra. 107. 
 
 An aii|ilicatir>n to set aside the order for arrest nia<le after speeiul hiiil jiut in, 
 and ju(lj;nieiit ol)tained, on the },'rc>inid that the afHdavit was insutKtieiit in lau, 
 will not he entertained : /{iinriiiuin v. A riiislrdiiii, 2 (". L. .1. Ul.'i. 
 
 When in the affidavit on which the order was granted, the words "i 
 to defeat" were used, instead of " intent to defr.tnd," it was held to 1 
 ground for setting aside the arrest : Liiiii<i \. SiinHrhniil, VI V " '"''' 
 
 intent 
 )e nil 
 
 K. m\. 
 
 Where the defendant .seeks to set aside the .ludge's order and arrest, on tlie 
 ground tliat the affidavit discloses no siifticient cause of actirm ; or (loes nut 
 show facts whicii slimdd have satisfied the Judge tiiat the defendant wa.s alKnit 
 to ([uit Ontario, it woidd seem that the a|i|)Iication is leally in tlie nature (if :iii 
 apiie;'! fioni tln' Judge who granted the order, and must he made to tin 
 iHvision.d Court, and cannot lie entertainetl hy a single .ludge : see Jlatiurw 
 Buxhii, .") I\ K. ;C)i;. il xi'i/ : hidiiiDiiil V. <\irtirri;i/it. L'l.' C. I'. 494 ; /W- rf.soii v. 
 ('oit/ioii, '.) V. K. H; ; and see Pulmir v. lioih/crK, (> I'. < '. L. J. IS.S. 
 
 When the application under this Jiidf in nnwle to a Judge ui)on materialsnot 
 laid l)ef<pre the Judire who made the order to arrest, the aiijilication sluinld in 
 general l)e to discharge the defendant out of custody, or for the liiinil orotliir 
 .security to he given u|) to lie cancelled, as the case may reipiiie. But wliiii 
 the apiilieation is liased on the alleged insufficiency of th<' affidavits on wliiih 
 the order to arrest was granted, then the application may he in aililitinn to sil 
 aside the order, hut in this case it would seem tlie ajiplicatinn shmild he nuuli 
 to a ivisional Court as it is in the nature of an appeal from the .hul^'e wlm 
 granted the order: see .si(/*/vf, and ('artvritlht v. ////k/.x, H ( )nt. ;<S4 : (lilhiiiw 
 Stik'H, l.S P. K. 121; and where the ai>|iliciifion is liased upon the insufficiency 
 of the material on which the order for arrest was granted, .is distiiigiiisluil 
 from a motion to discharge the prisoner from custody on the merits, no new 
 material can he u..*ed ; //i. \ .Tiidge of a County Court who has made an (micr 
 for arrest in an action in the High Coiu't, under K. H. (). c. ti7, s. 1, lia.s (Kiwcr 
 under this iid/f to entertain an application to iliischarge the defendant from 
 arrest. 
 
 Statement 103S. If any defendant is taken or charged in custody 
 
 when to be dpon any such order, and imprisoned for want of bail to the 
 
 wheifde^ action, the plaintiff may. within one month after the arrest 
 
 imprisoned of the defendant, deliver a statement of claim in the action; 
 
 for want of otherwise the defendant shall be entitled to be discharged 
 
 from the arrest or detainer, unless furthor time to deliver a 
 
 statement of claim is given to the plaintiff by the Court or 
 
 a Judge. Rules of T. T. 1856, 100; R.S.0. 1877, c. 50, s. 37. 
 
 The month mentioned in this Rule is a calendar month : see K. S. 0. c. 1, 
 8. 8, H-s. l.'i ; 51 Vic. c. 2, s. 4, (O). 
 
AUR. ST. 
 
 888 
 
 (iiitith'H a (Icfemlaiit 
 r (if ti'cliiiicul (ilijcc- 
 
 waiver of ulijcctioiis 
 ■icc Unci II V. I'linnaii, 
 ; liiiiri m \. FI(imr,'S 
 iirsc iif liiw is iiiit a 
 '. K. '.'74. NViii'ii tiic 
 li'd in the 1 1 i(,'ii Court 
 tliat the (Icfcot Wii- 
 
 c. (17, !*. '2 ; Kll<rlri\. 
 II r V. Jtimliii, 5 1'. li, 
 aritv ill tiu' uttidiivit, 
 y. 4'.M>. Wliciv till' 
 t was in tin- Unitcil 
 
 mllKi OVI'I', tilt' lUTl'-t 
 
 Id- special liail imtin, 
 i-as itisutHcicutiiilioi, 
 . .1. 10.'>. 
 
 il, tlif woi'ils "inlt'iit 
 it was hclil to U- 11(1 
 , !•_• P. H. «(iti. 
 
 del' and arrest, en tiic 
 if actidn ; (ir dees imt 
 i. (Icfciidaiit was iilieiit 
 ,lly in tlic nature (if 111! 
 ninst 111' made te tin- 
 .lnd},'(' : see llinmr^. 
 ; 1' 494 ; IIdI'' rtKon v. 
 
 i.. J. ix.'^. 
 
 lir,. ii|)(in materials iiiit 
 ''"ai)i)lieati(iiisli(iiil(liii 
 r for tiie lidiid (irdtlicr 
 V ve(inive. 15ut wlim 
 tiie affidavits (111 wliuli 
 IV lie ill additidiito set 
 i'catiiin sill luld lie iiiivli' 
 1 fnmi tiie .ludK'' "■'"' 
 
 SOnt. :«4; '.•(/''('•' V. 
 
 niKin the iiisufticiewv 
 nted, as distiiis,'msli((l 
 ,11 the merits, nom'^ 
 wild lias made an (micr 
 (). e. (i7, s. l,li:isli(;w(r 
 the defendant fnini 
 
 larged in custody 
 want of bail to the 
 ;h after the arrest 
 aim in the action; 
 
 to be discharged 
 r time to dehver a 
 ff by the Court or 
 
 1877,0.50,8.37. 
 
 onth : see R. S. 0. c. 1, 
 
 Tht' time for dt^livory of a Htatcuu nt ')f claim in ordinary caHeH is now n'^""" Rules 
 t<'(l l)V ^^'^'' '^*>'*' '^'''*' ol)j»H;t of tl'.irt y^/A' in to haMte»n procecflinj^s aj^ainst 1053, i 
 
 , ,t /I «» I T r^ 1 \ l> loo . rrt.. . .. It . I 1 1 1 I » tn>ji . 
 
 uxU-ii «'t jfi ' w.,.., . ..■ J- "- --. « .... -- — ... «., ..... .^.-.. ,.. . .,w. . .....p,.. ..f,.- - . 
 
 prisdiiei's ; (I'linn v. /{ii.r, :\ V. C. il H. 183; Tiinoa v. AfcLmii, I 1'. K. .'«!»; 
 Hiimhiriiw Sii/diiiiiii, H VA). L..r.(l!» ;<ll,iiiii,' v. Udk-i, 3 1'. K. 'JH!»; ](» U.(!.1...I. 
 inri. If the defendant lie out on hail the Ki'li' docs not ajijily : (lli nil v. Hnx, 
 ill lira , 
 
 The |ieiidency of proct'wlingH to net aside the cii)ii(tn iiiui arrest was held to 
 In- 111) ex(nis(' for not declaring within tlie timo limited ; Houtalini/ v. (htttin, ^i 
 W \{. LTil. 
 
 105:S. Tlie phiintiff shall, unless the Court or a Judge 
 otherwise orders, cause the delendunt to bf charged in 
 execution within fourteen days after the plaintiff is entitled 
 to enter iiiial judgment. Sat! Rules 'i'. T. J.s5(), 99. 
 
 Tills Rule is intended to apply to defendants referred to in the i)receding 
 Ritk, whd are imprisoned for want of hail in the action. The term " charging 
 in e.\e(!Uti(>n " is the prowess wherehy a prisoner in actual confiiuiiiieiit in 
 (k'taiiii'd in custody in execution : llrnkcth v. W'aril, 17 C P. (i(i7. TIuh is 
 effected liy delivering a writ of ca. sn. to the HIna'ifF. The writ must Im 
 (lelivcicd to tiie Sheriff within fourteen days after the time the iilaintitf is 
 entitled to enter judgment, and not from the time the judgment is actually 
 entered. Where a defendant is arrested under an order pending action, and 
 Ijefore judgment gives hail, and after judgment and r<i. Kii.tu fix hail returned 
 noned inrinliis, is rendered to the Slieriff's custody hy his hail, in their own 
 discharge, such prisoner is still held under tlu' iinKiir process, and is not 
 ciiarged in execution : llcukcth v. Ward, su/jrit. Where the defendant is not a 
 [irisoner at the time of the trial, hut is rendered, or renders himself in 
 discharge of his hail hefore judgment : see Brash v. Luttn, .5 T J. C. L. .J . 225 ; 
 Ciirrv V. Turiur, 3 P. R. 144. Where the defendant is surrendered hy his hail 
 after judgment and notice thereof given to the plaintiff ; see Torrance v. Iloklca, 
 10 U. C. L. J. 322. Where the defendant is out on hail hefore judgment, he 
 need not he "charged in execution," within the time mentioned in tliis Jtuk : 
 Tonaim v. Holilvn, 10 U. V. L. .1. 298. The writ of ca. mi. to fix hail must ho 
 returnable on a day certain, and not immediately after execution : Proctor v. 
 Mch'etrJt, 11 Ont. App. 48(). 
 
 Wiiere a defendant is ordered to he discharged hecause plaintiff has not 
 charged him in execution in due time, he cannot he thereafter arrested on the 
 same judgment : Burn v. Straii/lit, ,5 (). S. 523 ; ancl see Wlimtley v. .Sharpe, 8 
 P, R. 307 ; (''okUng v. Mackii; lb. 237. 
 
 See Rob. & .Jos. Digest, .30G0. 
 
 I034. Where the defendant is described in the order for 
 arrest, or afiidavit therefor, by initials, or by wrong name, 
 or without a Christian name, the defendant shall not for 
 that cause be discharged out of custody, or the bail bond be 
 (leHvered up to be cancelled on motion lor that purpose, if 
 it appears to the Court that due diligence has been used to 
 obtain knowledge of the proper name. Rules T.T. 1856, 66. 
 
 A defendant arrested, if summoned hy a wrong name may still he discharged, 
 «nd have tlie bail bond delivered up to be cancelled, anless the plaintiff can 
 shew tiiat he has exercised diligence to ascertain the right name : LmJbrook v. 
 Ihillipg, 1 H. & W. 10!) ; R;,i.iiit v. HurtUii, 7 A. & i'^. 522 ; and in determiniTig 
 the question whether due diligence has been used, the Court will consider all 
 the ciroumstances : see Hick.i v. Marrwo, 1 C. & M. 84 ; Finch v. Cockcn, 2 
 ^;M-jt^K. ]!)U; Lyon. v. Wa/U, 2 M. & Sc. 3!)3 ; Limhan v. Wclh, 3 Bing. 
 ^>. 0. 777. The fact that the affidavits to hold to bail are not entitled in any 
 
 J.A. 53 
 
 1004. 
 
 W)ien (lo- 
 fcnilant to 
 bo ciiarged 
 in Bxocu- 
 tion. 
 
 Misnomer 
 of defen- 
 dant in 
 bailable 
 proceed- 
 mgs, effect 
 of. 
 
 Discharge 
 
 of defen- 
 dant (or 
 uiiBiiomer. 
 
 
 ^ 
 
 ^ 
 
884 
 
 EXTRAORDINARY REMEDIES. 
 
 RttlM Cotirt in no pfroiind for Hutting aside the ordor mtuh^ thereon : Elli'rhi/ v. Walton 
 
 1000, lOM. 2 P. R, 147 ; MuUoj/ v. ahaw, 5 P. K. 250 j and see Duiner v. /iuHhi, 6 p, R. 
 866i 
 
 
 
 
 from cmin- l®^^* The Sheriff to whom an order for arrest issueil 
 tv Courts, out of a County Court is delivered, shall take bail from any 
 to'^tako'boii defendant arrested thereon, and if required shall assign the 
 BonaVwoat- ^^^^ houd in like manner as in cases where like process is 
 aBsr^'baii ^^^'^^^ ^"^^"^ ^^® High Court, and such assignment shall have 
 bond, etc. the Same effect as if the order had issued from the Higli 
 Court. K. S. 0.1877, c. 50, s. 88. 
 
 When 
 plaiutilT 
 may aigw 
 jii(lp{niunt 
 upon bail 
 bond. 
 
 Hail to 
 Slieritf. 
 
 Dufendant 
 to bo dis- 
 charged on 
 Kiviuff bail 
 to Sheriff. 
 
 Form of 
 bond — one 
 aurety suffi- 
 cient, but 
 Sherii/ 
 ^tlioula re- 
 ■lUlre two. 
 
 Bail to 
 Sheriff, 
 when for- 
 feited. 
 
 1056. In all cases where the bail bond is diioctecl to 
 stand as a secv rity, the plaintiff shall be at liberty tc sign 
 judgment upon it. Eules T. T. 1856, 68. 
 
 BaU to the 8heriff.--()n tho arrest of .i defendant on W( .sv/i' jirocess, the 
 sheriif's officer may not carry liini to gaol within twenty-fo\ir liour.-* fnnii the 
 tinio of M\ich arrest, under a (xnialty of t")!), indess the defcudiuit icfiiscs to 
 be carried in tiie meantime, to some safe and convenient dwelliiif,' hmiw in tlii' 
 county, to i)e named ))V liim, not l)eing' his (jwn lumse : 32 Geo. 2, o. 2.S. ««. 2 
 and 12 ; Arch. I'r. l.Sth ed.. 7<t7. 
 
 This ^)rovision has been held not to ai)i)ly where a defendant is ariestwi for 
 disobedience of an order to pay the debt : MUcluil v. ^^imtimin, 2,S<i. 15. \). 3"3; 
 (il L. T. N. S. 24S. 
 
 It is the duty of the officer to re((nt»st th(i defendant to niinie siicli liduse, 
 Ixifore he can take him to gaol within the twenty-four hours : lhii'hifd\. 
 Pearson, 1 Dowl. 1*. C. (J<)4 ; 1 C. <fe M. 3().T ; Si,n/i.-i,)i v. linifmi, n 15. & Ad. 
 a"), and .see (.'onlmi v. iMiiri'., II (j. B. (iO ; 18 L. .1. C^. H. ItH. Tlie (lefcmlaiit i» 
 entitled to bo discharged on giving bail to the siieriff, and on |)ayni('nt (if the 
 sheriff's fees including the costs of the bond. Tlie sheriff may take a bond with 
 one surety ; but it is strictly his duty not to aece|)t a bond with less than two 
 sureties. The bond must bo e.xtjcuted and taken on or before! the tenth day 
 limited by the order for arrest, for putting in special bail. The sheriff is to 
 take bail for the snm indorsed on the order, and no more ; 12 f !eo. 1, c. 2!l, s. 2; 
 . in i)ractice the jjonalty is usually donble tlie sum for which the defendant is 
 ordered to Ik; held to bail : s(>e lU'hi r v. Jnckxim, !) Ont. (!(il. Tiie security to 
 the sherifT must be by Ijond, otherwise it is void, 23 H. (5, o. i) ss. 7, H ; 10 Co, 
 101 ; Lewk v. Kniulit, 8 Hing. 271 ; 1 M. & Sc. 353 ; 1 Dowl. V.C. 2(!1. Tiie 
 bond must be to the sheriff himself by the name of iiis office, and uiwn 
 condition written, that the defendant shall apjH'ar at tlie day ciiiitaiiied in the 
 order for arrest, and in such place as tiie order shall reipiire : 215 H. 6, c. !•, 
 s. 7, otherwise it shall bo void : lb. h. 8. If the bond be e.xecuted before the 
 condition is filled up it will be void : Powell v. />",/, 3 Camp. 181. 
 
 The ItKind is forfeited if the defendant do not put in bail to the action, or as 
 it is called 'bail above,' or ' special bail,' within ten days after his arrest ; oril 
 special bail be put in within that time, then by his not perfecting them in diie 
 time. When in consequence of the forfeiture of the bail bond to the slierm, 
 an action is brought thereon, uiwn an assignment thereof by the slienft, or 
 proceedings are taken, against the sheriff ; uiKin an application to stay such 
 action or proceedings, in order that the case may be tried on the merits against 
 the original defendant, it is in the power of the Court, or Judge, to direct the 
 bail b^-,.'i to the sheriff to stand as security to the plaintiff should he succeed in 
 estP.Mif .ling his claim against the defendant on the merits, and it is to cases m 
 wl.it'.i such a direction naa been given tha Rule 105G applies. 
 
BAILABLE PROOEEDIMOB. 
 
 885 
 
 1057* Proceedings on the bail bond may bo stayed on 
 payment of costs in one action, unless siitticient reason be 
 shewn for proceeding in more. Rules T. T. 1856, 69. 
 
 AftiT verdict in more tliaii oixi action on a liail iMnid, an appliuation to wtay 
 pr(i(!t'(Mlin)fH under thin Unit' on |)ayuiuQt of cuntti in onu action only itt tu<) late : 
 Juhimtiii V. Macdmutld, 2 Dowl. 44. 
 
 105M. In case an order for returning an order for 
 arrest expires in vacation, and the SherifY or other officer 
 having the return of such order, returnu ci'in rorpn-i thei'oon, 
 anonior may thereupon issue requiring the Sheriff or other 
 officer within the like number of days after the service of 
 the Older, as by the practice of the Court is prescribed with 
 respect to orders to bring in tlie body, to bring the defend- 
 ant into Court, by forthwith putting in and perfecting bail 
 to tlie action, and if the Sheriti' or other officer does not 
 duly obey the order, an attachment shall issue for dis- 
 obedience of the order, whether bail has or lias not been 
 put in and perfected in the meantime. llules T. T. 1856, 
 74. 
 
 Onit Ts to l)^in^,' in tliobody are to lie niiwlr rctiiniablt^ in six days : Jliilc !)08. 
 
 Tlic cnnt'ludiiiK' clause of Mn/r 1058, as to the issuf of an attachment ajraiiiMt 
 tlie nlii ritf, or (itliiT olHccr. must Ix' read in oonncction with Jiii/i' 87!); under 
 that Jtiili iin attiu^hment cannot issui- in any case without an order therefor, to 
 l)('ii])|ilie(l for on notice to the party a^'ainst whom it is to he issued : Ji'itp v. 
 Cmiicr, t)C,. I', I). 2(). It will he noticed tliat the order prescribed by this 
 
 Rules 
 1057-lOM. 
 
 Prococd- 
 inqfl on tho 
 
 bail hond 
 
 may be 
 stayed on 
 payment of 
 coHtH in one 
 action. 
 
 Order may 
 isHuu re- 
 (luiritu; 
 ShorifT to 
 hriuK body 
 into Court. 
 
 .\ttacli- 
 nu'ut may 
 issue for 
 (lisol)edi- 
 encu. 
 
 Orilor for 
 issue of at- 
 tacbment 
 is now ne- 
 cessary. 
 
 to tiring' the defendant into Court, l)y forthwitli putting' In and 
 I (■,-. tUn .in*-:,... " /_,._^ special bail. 
 
 Rule IS out ^ ... 
 
 IHTfectinji; bail to tho action, 
 
 105!l. \ plaintiff shall not be at liberty to proceed on lH^^^^f^ 
 the bail bond pending an order to bring in the body of proceed 
 the defendant. Rules T. T. 1856, 71. I'^Xvlw- 
 
 The hail bond referred to in this Rti/f is the bond given to thi! sheriff, or bail briufj in 
 Iwlow, and which bond is conditioned for the defendant jjutting in "special body- 
 bail," within ten days after his .irrest. The sheriff is, under 4 & o Ann, o. 10. 
 s. 20, hinnid to assif,'n this bond to the plaintiff, by "indorsing the same and 
 attesting it tnider his hand and seal in the presence of two or more credible 
 witnesses ;" and if the .security be forfeited, the plaintiff m.'iy bring an action 
 thereon in his own name ; but under this liiilr the .action caimot be in'oceeded 
 with jiendiiig an order to bring in the l)ody ; which is a ])roceeding to compel 
 the defendant to ]jut in s|)ecial bail. If th(^ sheriff refuse to assign the bond, 
 an action will lie against him : See Slumjirr v. Mitliuimif, 7 T. K. 122. The 
 pkintiff should not take an assignment unless he is satisfied .a« to tho 
 sufficie;. ;y of the sureties, as by taking .in assignment he waives his right to 
 |)roceed against the sheriff to comiH'l him to return the order: see lii-ankn v. 
 *'«<', 1 Wil. 22."$; Ktlicriciv. dowim; Halk. SI!). The plaintiff is not bound to .J 
 
 take the assi^'mnent though tendered by the sheriff : Rex v. Daw, 2 Salk. (108. 
 
 lOttO. No order shall be drawn up for setting aside an Appiica- 
 attachment regularly obtained against a Sheriff for not aside at'-^* 
 bringing in the body, or for staying proceedings regularly *^°'iagt"'' 
 
 > 
 
 
386 
 
 Rules 
 1061, 1062. 
 
 Sher?? for 
 not bi'ing- 
 ing in body, 
 or to stay 
 proceed- 
 IngB 
 against 
 bail, to be 
 founded on 
 affidavit of 
 merits, etc. 
 
 EXTRAORDINARY REMEDIES. 
 
 commenced on the assignment of any bail bond, unless the 
 application for tbe order, if made on the part of the original 
 defendant, be grounded on an affidavit of merits, or it made 
 on the part of the Sheriff, bail, or any officer of the Sheriff, 
 be grounded on an affidavit shewing that the application is 
 really and truly made on the part of the Sheriff, or bail, or 
 officer of the Sheriff, as tbe case may be, at his or their 
 own expense, and for his or their indemnity only, and 
 without collusion with the original defendant. Rules T. T. 
 IBS'), 72. 
 
 Siiecial bail must not only be jiut in, but perfected, before the Court will stay 
 proceedings on the hail bond to the Sheriff: (ioulil v. Jlirmiwihion, S 0. ii. 
 .298. Where the ]>laintiff liad delayed for three years to ijroceed against the 
 ■bail below to compel them to j)ut in special bail, jiroceediUf^s on the bail Ixmd 
 were stayed after judgment and execution, on jjayment of costs : Youw/ v. 'Hwre, 
 2 O. 8. 314. 
 
 Where l)ail rely on the i)erformance of their undertaking they must plead it, 
 they cannot ajiply smnmarily to stay proceedings in such a case : MitclteUy. 
 Noble, 1 C. L. Ch. 284 ; and see Blackman v. O'Uorman, 5 U. C. L. J. IGl. 
 
 Where bail surrendered their principal and gave due notice within eight 
 days after the return of process on the recognizance, and the plaintiflfs, never- 
 th(!les8, proceeded to judgment, proceedings were stayed without requiring 
 payment of costs up to the notice : Wright v. Tucker, G U. C. Q. B. 24 ; see 
 Rule 1084. 
 
 ma"be''ut '®^'» Whenever a plaintiff obtains an order to the 
 in at any Sheriff, ou a rctum of eepi corpus to bring in the body, the 
 reTurnV^ defendant shall be at liberty to put in and perfect special 
 bring in ^^^^ *t ^^y tio'is before the expiration of such order. Rules 
 body. T. T. 1856, 73. 
 
 Where The Sheriff may be ordered to bring in the body after the time for putting 
 
 Sherifif jn bail has expired : Pouchee v. Litven, 4 M. & "S. 427 ; Hutchim v. llird, 5 
 
 may be rp jj ^nt) . p^iter y. Mnrsden, 8 East. 52.5. But the order cannot issue after 
 
 ru ea. judgment has been recovered against the sheriff for an escai)e, nor when the 
 
 defendant has been released by order of the plaintiffs ; Borwick v. Walton, 2 
 
 B. & Al. 023 ; nor where 'he plaintiff has taken an assignment of the bail 
 
 bond : 2 Saund. CO b., i)rovi(led it be a valid one ; uor where lie accepts a 
 
 cotinovit or other security from the defendant, without the privity of the 
 
 Sheriff : Rex v. Hheriff of Surrey in Brewer v. Clarke, 1 Taunt. 15!) ; Arch. I'r, 
 
 12th ed., p. 812. The order should be issued, and served promjitly : Rex v. 
 
 Sheriff of Middlesex, 1 Dowl. 53. The order may issue on praeipe without 
 
 motion : see Rulex 908, 909, 912. 
 
 Orders to bring in the body are returnable in six days ; /{«/p 908. I'nderthis 
 Rule special bail may be put in at any time before the expiration ot the six 
 days. 
 
 Condition 
 oi recogni- 
 sance of 
 bail. 
 
 1063. The condition of the recognizance of special bail 
 shall be, that, if the defendant be condemned in the action 
 at the suit of the plaintiff", he will satisfy the costs and 
 condemnation money, or render himself to the custody of 
 the Sheriff of the County in which the action agaiust such 
 
BAILABLE PROCEEDINGS. 
 
 837 
 
 defendant has been brought, or that the cognizors will do R'*!* !<>««• 
 60 for him. R. S. 0. 1877, c. 50, s. 40. 
 
 Notwiihstanding the condition t)f the recognizance to Hatisfy the costs "and 
 condemnation money " bail are not liable for more than the sum for which bail 
 is ordereil and the costs. Thus, where the i)laintiff swore to a cause of action in 
 tort for S500, but bail was ordered for §300 only, it was held, notwithstanding 
 that the iilanitiflf subsequently recovered judgment for $400 damages and 
 1125.27 costs in the action, that the bail w^re only liable to the extent of $300 
 and the costs : Baker v. Jackson, 9 Ont. 661 ; and .see Lairuj v. Slinyerland, 
 17 Ont. 302. The condition of the recognizance prescribed by this Rule appears 
 only to be appropriate where a defendant is arrested on mesne process, where 
 he IS arrested u,fter judgment it would seem that bail should be required in the 
 tenns of R. S. O. c. {>7, s. 14. 
 
 106!{. Upon due notice given to the plaintiff or hisHowbau 
 solicitor, and upon production of the bail-piece, andufy!^^"^" 
 whether the defendant is detained in custody or not, bail 
 may justify before any Judge of the Court in which the 
 action is pending, and such justification and the opposing 
 thereof may be by affidavit or affirmation without the 
 attendance of the bail in open Court or before such Judge, 
 unless specially required by such Court or Judge, and such f^r'^^nolv' 
 Court or Judge may thereupon issue an order for the allow- ance to 
 ance of such bail and for the discharge of the defendant (if *^^'^®' 
 in custody) b;y a writ of supersedeas. R. S. 0. 1877, c. 50, 
 s. 41. 
 
 (a) Every order of a Judge directing the discharge of a order for 
 defendant out of custody, upon special bail being put in ordefeif-* 
 and perfected, shall also direct a supersedeas to fssue forth- ^^^j^jX*"' 
 with. Rules T. T. 1856, 98. 
 
 The first part of t\w, Rule is taken from the C. L. P. Act, the words "any 
 Judge of the Court in which the action is pending," were originally applied to 
 the Judges of the Queen's Bench .and Common Pleas, and the section was 
 originally enacted befc)re any jurisdiction in Chambers had been conferred on 
 the Clerk of the Crown of the Queen's Bench, and the County Court .Judges, 
 and Local Masters. Since the section was originally enacted the Superior 
 Courts of Law and Equity liave been amalgamated into one Court. 
 
 Bail cannot be justified where their justification is opposed, before the County 
 Court Jiidge, or Local Master, having jurisdiction in Chambers in the action, 
 nor in Toronto before the Master in Chambers, but the application must in all 
 cases be niade before a Judge of the High Court ; because the liberty of the 
 subject is involved, and the juri.sdiction of the Master in Chambers, and Lcjcal 
 Masters, and County Judges, is therefore excluded : see Hules 30, 41, 138. 
 
 Whether the bail-piece shordd be filed, or simply pnxluced before it has been 
 actually allowed, does not seem to be clear ; see Rule 1075, which seems to 
 asaurae that the bail-piece is to '.hj filed, this Rule sj)eak8 merely of its prtxluc- 
 tion. According to the English practice it was customary to file the bail-piece 
 in the Judge's Chambers, until the bail had justified and had been allowed, 
 when it waa taken out and filed in the oflSce of the Master: Arch. Pr. 11th 
 ed., pp. 823-847. The notice of justification is to be given two days before the 
 time of justification ; Jiiile lOHi). Where notice of justification was given at the 
 
?88 
 
 EXTRAORDINARY REMEDIES. 
 
 
 Rale 1064. same time as notice of the bail being put in, it would seem that the notice was 
 required to be a four days' notice according to the former Enfrlish practice; sec 
 Arch. Pr. llth ed., 824 ; but this was expressly i)rovided for by tht' English 
 Rule i)(), H. T. 1853, which does not setan to liave been adopted in Oiitariii. 
 A two days' notice therefore would seem sufficient though the notice of the l)iiil, 
 and notice of justification, be given at tiie same time. 
 
 If the plaintiff excepts to the bail, it wo\ild seem that tiie affidavits of justi- 
 fication according to Form No. 4(5, will he priun') facie sufficient, and the onus 
 will lie on the plaintiff either by cross-examinati(m of the bail on their 
 affidavits, or by counter affidavits to establish their insutficieney. 
 
 ^"ender 1064. Special bail, on production of a copy of the bail- 
 
 their prin- plecG Certified by the Officer of the Court havinp; the custody 
 
 sheriff" of'^ thereof, may surrender their principal to the Sheriff of the 
 
 ty.^eto!"" County in which the principal is resident or found, and the 
 
 Sheriff shall receive the principal into his custody andp;ive 
 
 the bail a certificate under his hand and seal of office of 
 
 the surrender, for which certificate the Sherift' shall be 
 
 entitled to the sum of one dollar, and any Judge of the 
 
 Court in which the action is pending, upon proof of due 
 
 notice to the plaintiff or his solicitor of the surrender, and 
 
 upon production of the Sheriff's certificate thereof, shall 
 
 order an exoneretiir to be entered on the bail-piece, and 
 
 ■ ,,^. thereupon the bail shall be discharged. E. S. 0. 1877, 
 
 c. 60, s. 42. 
 
 The fee by tliis Ruh'. autliorized to be ciiarged by tlic Sheriff is not included 
 in the Tariff, and it is presumed is payable in addition to tlie fees tlicrein six-ei- 
 fied. It is only bail to tiie action wiio can render tlieir principal. Bail to the 
 %• ' ' c'- Sheriff cannot render their principal, they can only discharge tlieniselvps In 
 ha\ ing special bail put in and justified : or by special l)ail Ijeing jmt in and tlie 
 l)rincipal thereujion rendered. Where the defendant himself fails to ])nt in 
 special bail, the bail to the sheriff may put it in, and without justifying' may 
 render their i)rincipal : see Rule 1082, Arch. Pr. lltii ed., 8(11 ; and this 
 may also be done by the Sheriff, or Sheriff's officer, and perliai)s by the 
 defendant's .solicitor in discharge of any undertaking he ma\ liave given. And 
 the render nuiy be made aftei the Slieriff has' been ordered " to l:)i'inti; in the 
 body," and after an assignni' nt of the bail b(md and |)roceedings coinnienced 
 thereon : Ih. If, however, the plaintiff jiroceed against th(i Sheriff the render 
 should in general be made before the expiration of the order to tiring in the 
 body : Arch. Pr. llth ed., 802. Special liail may rerder theii' principal 
 ex dehitd justilid' at any time pendir^ the action, or aftei jud^rment at any time 
 before the return of the m. sti. 'Tht! ('ourt also as a niattev of favour has 
 allowed bail a further time after the return of a ca. sa. to render tlieir princi- 
 pal : see Rulr 1084. If the bail do not render their principal within the tinie 
 allowed by the latter Rule their right to render him is gone. As to enlargin(( 
 time for rendering : see Arch. Pr. llth ed., 863. 
 
 It was formerly held that the bail given under a writ of nc r.vMt had m' 
 ix)wer to sin-render their princij)al as at common law, and an application hy 
 sureties for a discharge from a bond and for repayment of the money ]wid t" 
 the Sheriff as collateral security was refu8e<l : Mclhmald v. MiDimahl, 1 
 Chy. Ch. 22 ; the money deposited was ordered to be applied in payment of 
 the plaintiff's claim : Richardson v. Richnrdmv, 8 P. K. 274 ; SveJham v. 
 Needluim, 29 Gr. 117 ; but it would seem to be the intention of tliese Rules to 
 abolish this distinction, and to allow the surrender . the princiiial by the 
 bail, whether the ctmrse of action in resiiect of which tlie defendpnt has 
 been arrested be legal or equitable. 
 
 
BAILABLE PROCEEDINGS. 
 
 839 
 
 1 that the notice was 
 
 Ciifrlish practice; sw 
 
 for by th(! English 
 
 adopted in Ontarici. 
 
 the notice of the bail, 
 
 lie affidavits of justi- 
 fficient, and the onus 
 if the bail on their 
 ici<'ucy. 
 
 copy of the bail- 
 vincr the custody 
 be Sheriff of the 
 r found, and the 
 iustody and give 
 seal of office of 
 Sheriff shall be 
 ly Judge of the 
 )n proof of due 
 3 surrender, and 
 te thereof, shall 
 3 bail -piece, and 
 R. S. 0. 1877. 
 
 SheriflF is not include(l 
 ) the fees therein siwci- 
 principal. Ikiltothe 
 ■icharge themselves by 
 il lieing imt in and the 
 himself fails to jnit in 
 'ithout jnstifyinK may 
 ih ed., 8(il ; and this 
 , and perhaps by the 
 mav liav(> jriven. And 
 [•red " to brin(? in the 
 iroceedings conniienced 
 : t\w Sheriff the render 
 order to bring in the 
 rerder their iirincipal 
 1 jud^ruient atany time 
 I niatter of favour ha." 
 to render their princi- 
 incipal within the tinie 
 }one. As to enlargint? 
 
 Tit of '"' f-t''"! f"*'! "" 
 and an apiilication by 
 
 t of the money paid to 
 maid V. McDimald, 1 
 applied in payment of 
 K. 274 ; -Vcci'/""" ''■ 
 Wmof t\whe Rules to 
 the princiiial by the 
 lich the defendant has 
 
 Where the bail render their principal, an order to enter an exoneretur on the Rules 
 bail bond should be obtained ; until the exoneretur is entered, the bail remain 1066-1067. 
 liable to the plaintiff on the bail bond : Laing v. SHnyerland, 17 Ont. 392. 
 
 1 065* In cases where the surrender is made to any sunh sur- 
 other Sheriff than the Sheriff of the County specified in theto"affect° 
 condition of the recognizance of bail, the plaintiff siiall nottrilf'**"*"* 
 be compelled to change the place of trial or to conduct his 
 suit in any manner different from that in which he would 
 have been required to conduct it had the surrender been 
 made to such last-mentioned Sheriff. K. S. 0. 1877, c. 50, 
 S.43. 
 
 It may lie observed that according to the terms of the order for arrest (Form 
 No. loo) the bail are required to undertake to surrender the defendant to the 
 ciist<Kly of the Sheriff of the County in which the appearance is required to be 
 entered ; but under the preceding Rvh 1064, they are authorized to surrender 
 their principal to the custody of the Sheriff of the County in which their 
 princiiial is resident or found. ■ 
 
 1060' In case a person is surrendered by his bail to the Person ar- 
 Sherift' of any County other than that in which he resided o! hfscoim- 
 or carried on business at the time, such person shall be traM^-^ ^^ 
 entitled to be transferred to the gaol of his own County on ^e^^'^d tou. 
 prepaying the expense of his removal ; and the Sheriff in costs, 
 whose County he was arrested may, if he is satisfied of the 
 facts, transfer him accordingly ; but if the Sheriff declines 
 to act without an order of the Court or a Judge, such an 
 order shall be made on the application of the prisoner and y ' 
 
 notice to the opposite party. R- S. 0. 1877, c. 50, s. 44. 
 
 1067> Special bail may be put in and perfected accord- Special bail 
 ine to the established practice. See R. S. 0. 1877, c. 50, tered am"' 
 
 g on plaintiff 
 
 may pro- 
 The persons who are to become bail are not to exceed two in number, except '^^^^ *^ . 
 by leave of the Court or a .Judge : Rule 1070. They must give a bond, or enter of'sum-''' 
 into a recognizance before a -Judge, or a Commissioner for taking recognizances mous. 
 of l)ail_, to tile effect mentioned in Rule 1002. The bond or recognizance with 
 an affidavit of the due taking thereof, and affidavits of justification by the 
 sureties (Rule 107!)) must then be filed in the office named in the order for 
 arrest within the time limited by the order, and at least two days' notice 
 given to the plaintiff in writing of the putting in, and justification of, the bail : '. -, 
 
 Rule 1080. If the affidavits of justification are served with this notice, the 
 plaintiff must, before the time appointed for the bail to justify, if he intends 
 to object to the sufficiency of tne bail, give one day's notice of exception, 
 otherwise the bail will be allowed as sufficient : Rule 1077. If, however, the 
 affidavits of justification are not served with the notice of bail, the j)laintiif 
 has twenty days thereafter within which to serve notice of exception to the . 
 bail :/?«/(■ 1078. The plaintiff who has excepted to the bail may cross- 
 examine the bail on their affidavits of justification in the usual way, or may 
 file counter affidavits U) show their insufficiency : Rule 1063. If the bail is 
 allowed, an order allowing the bail is issued, and a copy thereof is to be served 
 fln the plaintiff's solicitor. The bail is then said to be put in and {lerfected. 
 
T^ 
 
 iP 
 
 ^i^ 
 
 11 
 
 840 EXTRAORDINARY REMEDIES. 
 
 Rules If the bail are rejected the defendant must get further time to put in hail 
 
 1063-1073. otherwise the plaintiff may take an assignment from the Sheriff of the bail 
 bond, and commence an action thereon, or proceed against the Sheriff by 
 attachment. To obtain this, a return of ccpi ror/)H« must be olitained tothi' 
 ,, . . order for arrest, whereupon an order to bring in the Imdy may is.sue, and in 
 default of special bail being i)ut iji, the attachment may issue : sec, li(n/evcr, 
 Rule lO.W, note. As to persons disqualified from beinr^ bail : see /^(/m1U71, 
 1072, 1073, 1074. Bail, though rejected, may, revertheless, render their 
 principal : Rule 1082. 
 
 In cases in 
 
 a County ■, , j , 
 
 Court, iiow aetendant 
 
 106M. In case (in any action in a County Court) the 
 has been surrendered by his bail into the 
 proceed.*" custody of the Sheriff of a County other than that in which 
 the action has boen instituted, the plaintiff may charge the 
 defendant in execution, and take all other necessary pro- 
 ceedings in like manner as if the suit had been instituted 
 in the High Court. R. S. 0. 1877, c. 50, s. 45. 
 
 Baiiinc.c. I06!l. Recognizanccs of bail in County Courts maybe 
 ■-■•- proceeded upon in like manner as in the High Court. 8(t 
 R. S. 0. 1877, c. 50, s. 46. 
 
 All actions ujxjn recognizances of bail are now to be brought by writ of 
 summons, formerly proceedings might be taken by set. fa., but stich proceed- 
 ings are now abolished : R ule 224. 
 
 Notice of 
 more tlian 
 two bail, 
 irregular. 
 
 More than 
 two bail 
 ■when 
 allowed. 
 
 Bail not to 
 be chan^jed 
 without 
 leave. 
 
 1070. Notice of more bail than two shall be deemed 
 irregular, unless by order of the Court or a Judge. Rules 
 T. T. 1856, 75. 
 
 Where the amoimt is large a .Judge may allow several to become bail in 
 different amounts : Anon, 13 Price 448 ; Easter v. Edwards, 1 Dowl. 39. 
 
 1071. The bail of whom notice shall be given, shall 
 not be changed without leave of the Court or a Judge, 
 Rules T. T. 1856, 76. 
 
 Where the bail of which the defendant gives notice fail to justify; the 
 defendant must get leave to add bail, and also an extension of the tune for 
 putting in and perfecting the bail. 
 
 faJii": ^ I072. No person shall be permitted to justify himself 
 
 demnifled V. ■ i i -i i. ^ r i , •<■ i 
 
 by solicitor as good and sumcient bail for any defendant if sueli person 
 daufcan- has been indemnified for so doing by the solicitor or 
 not justify, solicitors conccmed for such defendant. Rules T. T. 1856, 
 77. 
 
 soii^citor^ IOT;». No solicitor shall take any recognizance of bail 
 party can- in a casc in which he is employed as solicitor or agent for 
 KcoSl either party. Rules T. T. 1856, 78. 
 
 ance. rpj,g afl^javit of justification cannot be sworn before the defendant's solicitor ; 
 
 Rule 613 ; Koi/k v. Wilcojr, 2 O. S. 113. 
 
841 
 
 Rules 
 1074-1077. 
 
 Solicitor, 
 Sheriff's 
 Officer, or 
 Bailiff cau- 
 not be bail,, 
 except for 
 purpose of 
 r-^'irlering. 
 
 he defendant's solicitor : 
 
 BAILABLE PROCEEDINGS. 
 
 1074. If any person put in as bail to the action, except 
 for the purpose of rendering only, be a practising solicitor, 
 or clerk to a practising solicitor, or Sheriff's officer, bailiff, 
 or person conceined in the execution of process, the 
 plaintiff may treat the bail as a nullity, and sue upon the 
 bail bond as soon as the time for putting in bail has 
 c'wred, unless good bail be duly put in in the meantime. 
 Rules T. T. 1856, 79. 
 
 After the return daii of the order for arrest, where special bail h-ive not 
 alreiwiy been ]>ut in, and where bail to the Sheriff arc desirous of rendering 
 their princiiial, si^cial bail mnst be jiut in before the render can be made : 
 Harrison v. Bnvin, 5 Burr. 21)83. It is bail put in imder such circumstances, 
 which is bail for the purpose of rendering only, referred to in this Rule. 
 
 The render may be made without justification, and even though the bail t- 
 
 liave attempted to justify and have been rejected. 
 
 1075. When bail which has been put in, in the P^^^p^'^'S: 
 country, is to be justified in Court, the bail-piece with t^et'^y-.i^owto 
 affidavit of the due taking thereof and the affidavit of in court, 
 justification, shall be transmitted by the Deputy Clerk of 
 
 the Crown for the County in which they have been filed to 
 the proper office in Toronto, to be filed and produced in 
 Court, upon the motion for allowance, on proper notice 
 being given to such Deputy Clerk to transmit the same. 
 Rules T. T. 1856, 80. * 
 
 It ia i.ecessary to justify bail in every case before a Judge of the High Court 
 at Toronto ; the Co uty Court .Judges, and I^ocal Masters have no jurisdiction 
 to entertain such applications : see Rule 10G3 note. 
 
 The words "Iit'puty Clerk of the Crown," in this Rule includes a Local 
 Rpgistrar, or Deputy Registrar, having the custody of the bail piece. 
 
 A rule for allowance was refused, where, after justification, one of the bail 
 had absconded : Jiillhujs v. Lnucks, 5 O. S. 78, and where the notice to the 
 plaintiff stated that special bail had been put in, but the recognizance 
 produced was only for the limits, an application for allowance was refused : 
 Ckrig V. McNab, 1>. R. 1.50. 
 
 1070. If the notice of bail is accompanied by an affi- u ijticeof 
 davit of each of the bail, according to the Form No. 46 in c«mpan1e*d 
 the Appendix, and the plaintiff afterwards excepts to such ^^'^''^.f^y* 
 bail, he shall, if 'such bail are allowed, pay the costs of tion, costs 
 justification. l^K^^; 
 
 The affidavit of justification cannot be sworn before the defendant's solicitor : °"*^" 
 Rvkm ; Koyle v. Wilcox, 2 O. S. 113. 
 
 1077. If the plaintiff does not give one day's notice of ^x^ce^tiou 
 exception to the bail by whom the affidavit was made, the to bail, 
 recognizance of the bail may be taken out of Court without Terved." ^ 
 other justification than the affidavit. Rules T. T. 1856, 82. 
 
mm 
 
 842 
 
 Rules 
 1078-1080. 
 
 When 
 notice of 
 bail not ac- 
 companied 
 bv affidavit 
 of justifica- 
 tion, plain- 
 tiff has 20 
 days to ex- 
 «ept. 
 
 EXTRAORDINARY REMEDIES. 
 
 The notice referred to in this Rule should be given at least one day before 
 the time for justifying the bail expires. 
 Notice of justification of bail is a two days' notic ee Rule 1080. 
 
 According' to the English i)ractico the exception must be entered in "thi 
 bail-book," and giving notice of excei)ti(ni, without making tliis entry is a 
 nullity : Thwaitrs v. (Utll inner, 4 D. & R. .Sd.'j; Hod<ison v. Uarrvtt, 1 Chit. 1'4; 
 but as in this province it has n(it been customary to keep a bail-book, probably 
 the filing of the exception would be sufficient. The exjiression " tlie l)ail may 
 be taken out of Court," refers no doubt to the old practice whereundei the hail 
 piece was first filed in the Judge's Chamliers until allowance, and on its being 
 allowed was handed out, and then filed in the jjroper oftice ; it is equivalent 
 to saying that the bail is to be allowed. 
 
 lOTS. Where notice of bail is not accompanied by sucli 
 affidavit, the plaintiff may except thereto within twenty 
 days next after the putting in of such bail, and notice 
 thereof given in writing to the plaintiff or his solicitor, or 
 where special bail is put in before any commissioner, the 
 plaintiff may except thereto within twenty days next after 
 the bail-piece is filed in the proper office, and notice thereof 
 given as aforesaid ; and no exception to bail shall be 
 admitted after the time hereinbefore limited. Eules T. T. 
 1856, 83. 
 
 The affidavit referred to in this Rule is the affidavit of justification prescribed 
 by Rule 107(5. 
 
 Affidavits 1079. Affidavits of iustification shall be deemed in- 
 
 Ol lUStlIlC8i~ 
 
 tion, form Sufficient, unless they state that each person justifying is 
 * ■ worth double the amount sworn to, over and above what 
 
 will pay his just debts, and over and above every other sum 
 for which he is then bail, except when the sum sworn to 
 exceeds $4,000, when it shall be sufficient for the bail to 
 justify in $4,000 beyond the sum sworn to. Rules T. T. 
 1856, 84. 
 
 See Rule 1070. Where the affidavit is insufficient the bail may justify in 
 person : .SVirtir v. Spode, 2 M. & \V. 42, but the defendant will not in that case 
 be entitled to the costs of justification : Stevens v. Miller, lb. 3G8 ; and see Kulf 
 1078. 
 
 It would seem, notwithstanding the wording of this Rule, that the bail need 
 only swear that they are worth double the amount which the defendant is 
 ordered to be held to bail for, which may be less than the amount sworn to 
 by the plaintitf : see Baker v. Jackson, 9 Ont. 6(31 ; Rule 10C2. 
 
 notfceT' ■OSO. It shall be sufficient in all cases if notice of 
 justifica- justification of bail be given two days before the time of 
 cieSt'""®" justification. Rules T. T. 1856, 85. 
 
 According to the former English practice when notice of bail and notice of 
 justification were given at the same time, the notice was required to be a 
 c ' four days' notice: see Arch. Pr. 11th ed., 824 ; but this was expressly pro- 
 
 vided for by the English Rule 96, H. T. 1853, which was not adopted in 
 Ontario. 
 
BAILABLE PB0CEEDINO8. 
 
 848 
 
 t least one day before 
 
 ■ justification prescribed 
 
 lOSl. In all cases bail to the action shall be justified, ^31^" 
 when required, within four days after exception, before a Bg^d'to ^p. 
 Judge at Chambers. Rules T. T. 1856, 86. "^^^'^llZ 
 
 This Ritli' ai)iii'iirs to i'i)i)ly to t^(> cawe when notice of bail is (fiven, and the foin- days 
 iiliiintiff tlicituiion serves notice of exception before the defendant has ^iven a afterexceii- 
 nijtici' iif justification, but in cases where V)efore the notice of exception has ""' 
 U'cngivon, ii notice of justification has been nerved, the bail should be justified 
 at the time ..;une(l in the notice of justification though it may be less than four 
 davs after the exception. 
 
 1083. Bail, though rejected, shall be allowed to render Jlf^li^j^ ^^. 
 the principal without entering into a fresh recognizance, jected, may 
 Rules T. T. 18.56, 87. ' 
 
 A render can onfy be made by sjiecial bail : see Rule 10()4, note. 
 
 their prin- 
 cipal. 
 
 1083. Where bail to the sheriff become bail to the j;|*^nj^^«gpt 
 action, the plaintiff may except to them, though he haBg?^'*.'i% 
 taken an assignment of the bail bond. Rules T. T. 1856, become 
 
 nn bail to an 
 
 '"• action, 
 
 Bail to tlie Sheriff are persons who give a bcmd to the Sheriff that the 
 difendaiit will jmt in siwcial bail within the time limited by the order for 
 arrf'st. " Hiiil to the actioTi " is another term for s])ecial bail. Special bail 
 are [lersons who imdertake generally that if the defendant be condemned in 
 the action he will satisfy tlm costs and condemnatiim mom y, or render himself 
 to the custiiily of the Sheriff of the County in which the action against .such 
 defendant has been brought, or they will do so for him : /tide 1002. 
 
 Fiinnerly the taking of an assignment of the bail l)ond to the Sheritf precluded 
 the plaintiff from excei»ting to the siifficiency of the bail to the Sheriff if they 
 liecome hail to the action : 2 Saund. 02. 
 
 1081. When the plaintiff proceeds by action on the 
 recognizance of bail, the bail shall be at liberty to render 
 their principal at any time within the space of 8 days next 
 after service of process upon them, but not at any later 
 period, and upon notice thereof given, the proceedings 
 shall be stayed upon payment of the costs of the writ and 
 service thereof only. Rul^s T. T. 1856, 88. 
 
 Where after due notice of render, ])laintifT proceeded to judgment, the jiro- 
 ceedings were stayed, and the costs incurred subsequent to notice, disallowed : 
 Wriyht v. Titckn; (1 U. C. CJ. B. 24. The Court will not interfere to stay 
 proceedings where tlie render is made after the time limited by this Rule: 
 Kmd V. Snrillc, 10 IT. C. Q. B. 453. Where there is doubt as to the validity 
 of an alleged rend(>r of the principal, a .Judge in Chambers will not order an 
 (xoncrelur, but will leave, the bad to plead : Blc.ckmai v. O'Gormin, 5 U. C. 
 L, J. 161 ; PottK V. Bnird, 7 P. R. 113. 
 
 Where the action is brought after render of the principal but before an 
 aoneretur has been entered, the action may be stayed on terms : Lainij v. 
 mngerland, 17 Ont. 392. 
 
 When ac- 
 tion com- 
 menced 
 against 
 bail, they 
 niaylren- 
 der their 
 principal. 
 
 Plaintiff 
 proceeding 
 after notice 
 of render 
 not entitled 
 to costs 
 subse- 
 cjuently 
 incurred. 
 
 iSI 
 
 1085. Bail shall only be liable to the sum sworn to by ^an^extent 
 the affidavit of debt, and the costs of suit, not exceeding in of. '* ' ^ 
 
m 
 
 ■v 
 
 844 
 
 Rules 
 1086-1088. 
 
 Staying 
 
 f)roceed- 
 ngs poiid- 
 iug appeal, 
 
 COBtB of 
 
 prior 
 notices of 
 bail. 
 
 liimit of 
 bail. 
 
 EXTRAORDINARY REMEDIES. 
 
 the whole the amount of their recognizance. Pailes T T 
 1856, 89. 
 
 Notwithstanding the wording of thin Rulr the bail arn not liii))lp for more 
 than the amount wliich the defendant has been ordered to l)e lield to bailfur 
 and the costs. Tliis may be less than the sum sworn to : see Jiakcr v. Jackm 
 i) Ont. G«l ; Bulc 101)2 ; 'Luing v. iSliw/cr/ami, 17 Ont. 3!»2. 
 
 lOHO. To entitle bail to a stay of proceedings pending 
 an appeal, the application must be made before the time 
 to surrender is out. Rules T. T. 185G, 90. 
 
 The time for surrender is out, after the expiration of eight days from th» 
 service of process on the defendant in an action against tlie liuil n|)im the recog- 
 nizance : see Rule 1084. The ap|H'al p'ferred to in this Rule is an apjiral in thi 
 action against the original defendant. 
 
 lOST. Wherever two or more notices of justification of 
 bail have been given before the notice on which bail appear 
 to justify, no bail shall be permitted to justify without first 
 paying (or securing to the satisfaction of the plaintiff, his 
 solicitor, or agent) the reasonable costs incurred by such 
 prior notices, although the names of the parties intended 
 to justify, or some of them, may not have been changed, 
 and whether the bail mentioned in any such prior notice 
 have not appeared, or have been rejected. Rules T. T. 
 1856, 91. 
 
 It is not necessary for bail to ap])ear in person to justify, unless so ordered ; 
 see Rule 10<53 ; but though the bail do not appear in person, it is presumed tliii 
 Ru/e would apply, and their affidavit of justification would not he received 
 until the i)rovisions of this Rule as to the i)ayment of the costs of the former 
 abortive notices of justification had been first paid. 
 
 lOS^i. In case an order is made for arrest in an action 
 for alimony, the amount of the bail required shall not ex- 
 ceed what may be considered sufficient to cover the amount 
 of future alimony for 2 years, besides arrears and costs, 
 but may .be for less at the discretion of the Court or Judge. 
 E. S. 0. 1877, c. 40, s. 46. 
 
 On a motion to discharge a defendant from arrest in an alimony action, the 
 merits of the case may be inquired into, so far as to enable the .Fudge to deter- 
 mine whether there is any reasonable prospect of the i)laintiff recovering 
 judgment ; and where the primd facie case mivde by the nlaintiff on obtaining the 
 order for arrest is clearly rebutted, the defendant may lue discharged ; Macphrr- 
 son V. Macphemon, 2 Chy. Ch. 222. 
 
 Although the order to hold to bail in an alimony action is not to exceed a 
 sum sufficient to cover future alimony for two years, yet when the Court ha« 
 acquired control over the funds of the defendant through any default of hi«, 
 payment of them to him may be refused except on the terms of his securing 
 the future payment of alimony : Oott v. (Jott, 10 Gr. 643. 
 
 Formerly it was held that where bail was given in an alimonj[ suit, the bail 
 coidd not render their principal, and if the principal did not satisfy the plain- 
 
ABSCONDING DBBTORS. 
 
 845 
 
 loe. Rules T. T. 
 
 tiff's demand, the necurity ffiveii by the Imil was fDi'fbited : see McDonald v. Rule 1089. 
 McDonald, 1 f'liy. Ch. 22; Itichnnhon v. Richanhon., 8 1'. R. 274; Nirdham 
 V. Ntfdham, 2!) (ir. 117. But these Itulrs appear to ;»lace arre.stM in actions for 
 alimony on tliu same footin'K "■« arrestsi for purely legal demands. 
 
 (ii) Ahsi'onding Debtors. 
 
 lOMO. Every attaching order in an action against an O''^""* j'; 
 absconding debtor sball be issued in duplicate and shall "^' ''"^ '" 
 be so marked on its face, and one of the duplicates shall 
 be delivered to the sheriff, and the other shall be used for 
 the purpose of serving the defendant. See 11, S. 0. 1877, 
 c. 68, 8. 6. , 
 
 Sections 1, 2 and 3 of R. S. O. c. (M), are aa follows : 
 
 1. If a person resident in Ontario indebted to any other person, departs from Who to be 
 Ontiirio with intent to defraud iiis creditors, and at the tune of his so depart- regarded 
 ing is possessed to liis own use and benefit, of any real or nersonal projHerty, ^^ an ab. 
 credits or effects therein not exenijit by law from seizure, ne shall be deemed ^g'JJtQr"^ 
 an absconding debtor, and his jiroperty, credits or effects aforesaid, may be 
 seized and taken for the satisfying of his debts by a writ of attachment. 
 K. S. 0. 1877, c. (i8, s. 1. 
 
 PROCEDUUE TO OBTAIN WRIT OF ATTACHMENT. 
 
 In the Iliijh Court. 
 
 2. Ujion affidavit made by a plaintiff, his servant or agent that a person so 
 departing is indebted to the ])laintiff in a sum exceeding .SKX), and stating 
 the cause of action, and that the deponent has good reason to believe and does 
 verily believe that the i)erson departed from Ontaricj and has 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 ht; has fled to), 
 with intent to defraud the ))laintiff of his just dues, or to avoid being airtoted 
 or served with process, and was, at the time of iiis so dei)arting, possessed of 
 real or i)ersonal property, credits or effects, not exempt by law from seizure to 
 his own use and benefit in Ontario, and upon the further affidavit of two 
 other credible persons, that they are well acquainted with the debtor men- 
 tioned in the first named affidavit, and have good reason to believe and do 
 believe that the debtor has dejiarted from Ontario with intent to defraud the 
 plaintiff, or to avoid being arrested or served with process, the High Court, 
 or a Judge thereof, or the Jud^e of a County Court, may order a writ of 
 attachment to issue from said High Court, and may in the order appoint the 
 time for the defendant's putting in special bail, which time shall be regulated 
 by the distance from Ontario of the place to which the absconding debtor is 
 supposed to have fled, having due regard to the means of and necessary time 
 for postal or other communication. R. S. O. 1877, c. 68, s. 2. 
 
 Proceed- 
 incs upon 
 affidavit 
 that the 
 defendant 
 has ab- 
 sconded, 
 etc. 
 
 Further 
 affidavit. 
 
 Writ of at- 
 tachment 
 to issue. 
 
 In County Courts. 
 
 3. In case the sum claimed is within the jurisdiction of the County Courts, Proceed- 
 «uch Court or the Judge or acting Judge thereof, may in like manner ings in 
 order a writ of attachment to issue from such Court, ajid the proceedings c'^^^swith- 
 thereon shall be the same as in this Act provided. K. S. O. 1877, c. G8, s. 3. i5ou°t"ju^. 
 
 It would seem to have been the intention of these Rides to do away with isdiction. 
 the necessity for a writ of attachment, as in the case of writs of capias ad 
 mpmuicndum : Bute 1045 ; writs of replevin : Ride 1098 ; writs of mandamus : 
 J'likmb; writs of injunction : Rule 1130; writs of prohibition : Rule 1138; 
 writs of certiorari : Rule 1140 ; and to substitute, for the special form of action 
 
r 
 
 846 
 
 EXTRAORDINARY REMEDIES. 
 
 '^^ 
 
 
 <Sl 
 
 
 '-2' 
 ^ 
 
 Rule 1089. commenced by a writ of attachment, interlocutory proceedingH in an oniinary 
 action by which the pri^jerty of an abHconding debtor may hv taken and 
 applied in ])ayment of his debts. The Huleg above referred to cxiinsslv 
 abolish the writs above mentioned and substitute orders therefor, but there w 
 no such express proviHi(m abolishing the writ of attachment Jtide 10J(9, how- 
 ever, seems incidentally fc> show that a writ is no longt^r necewsary, as one (if 
 the dutdicttto orders is to be used for serving the defendant, and tlie other 
 as authority to the Sheriff to attach the debtor's property. Again, as tln' 
 former writ was the commencement of the action, it would Heciu to have been 
 abolished and the ordinary writ of summons substituted by Jtuli' 224. Any pro- 
 visions of The AljMondinii lichtor'n Act to the contrary must therefore be 
 considered to be repealed by the Jinks', see 51 V. c. 2, s. 4. 
 
 Affidavit, AffldavltB for Attachment. — The order for an attachment is olitained on 
 motion <;.r /lartr, supiH)rted by an afHdavit to be made by the plaintiff, hi* 
 servant or agent, showing that the defendant was resident in ( )iitari(i, that lie 
 was indebted to tile plaintiff in a sum e.vceeding )J1()(>, and stating the cause of 
 action, and tliat the deixment has good rejwon to lielieve iiiid (Ioch verily 
 believe tiiat tlie defendant has departed from Ontario and iius gmie to, {slaliii'i 
 suiiic ji/iicc III irliirh the ulisct^HilitKj ilihtar in hi'/irrri/ to Ivnc tli-il, nr that the 
 deponent is unable to obtain any infonnation as to what place ho has He'! to), 
 witii intent to defraud the ))laintiff of his just dues, or to avoid liciiig arreste<i 
 or served with i)roce.ss, and was at the time of his so departing, posHensed of 
 real or personal property, credits or effects, not exempt liy law from seizure, to 
 his own use and benefit in Ontario : llaii v. RkIUui. 23 C. 1'. (ilH. 
 
 There must be the furtiier affidavits of two other credilUe iktsiius ihat they 
 are well acquainted with the debtor mentioned in the first named affidavit, 
 and iiave good reascm to believe, and do believe, that the debtor lias (leimiUil 
 from Ontario witli intent to defraud the plaintiff, or to avoid being anested or 
 served witii proce.ss. 
 
 The forfeiture of a recogn/.iance to appear constitutes a del it fur which an 
 attachment may issue : Rcijina v. Stvwurt, 8 1'. R. 21)7. 
 
 The del)t which tlie plaintiff claini.s, must be actually due and payable; where 
 the period of credit had not expired it was held that tini iilaiiititf was not 
 entitled to sue out a writ of attachment therefor : Kjjlc v. liariies, 10 P. K. % 
 
 The same particularity in stating the cau,se of action is not requirixl iis w,i< 
 fonnerly required in an affidavit to hold to bail where no order of a Judge \va, 
 required, nor the same particularity as is required when [lersoiial lilxTty v 
 involved: Bunk of llamilUni v. Jiaim (2), 12 P. R. 43!). 
 
 Formerly affidavits upon which the order was granted not style<l in any 
 Court, altliough sworn before a Commissioner for taking affidavits in the Q. B., 
 who appended to his signature the words "a Commissioner in V>. K. etc., were 
 held to be sufficient : SaiH v. Mitchell, 8 P. R. 518, following l-Ukrhii v. WoUm, 
 2 P. R. 147 ; and not following Hart v. Rnttaii, supra ; and see W'abfidd v, 
 Bruce, 5 P. R. 77 ; but now that the application for the onler is made in an 
 action commenced in the usual way it would seem to be proper that the atti- 
 davits should be styled in the action except in cases where in an ordinary action 
 leave may be applied for to issue a writ : see notes to Rules 274 and 270. 
 
 A statement that the dcifendant was indtjbted to the jilaintiffs in the amount 
 of certain jiromis.sory notes de.scribed, showing them to be overdue and held bv 
 the plaintiffs, and that defendant had departed, etc., with intent to defraud 
 plaintiffs, was held sufficient : Wuhrjiild v. Bruce, 5 P. R. 77., It is nut 
 nece.ssary that the plaintiff .slumld , swear that the debtor was residing in thi< 
 Province, if that fact be sworn to by other jiersons : Ih. It is sufficient to 
 show that the debtor intended to defraud the plaintiff, without showing inten- 
 tion to defraud creditors generally : lb. 
 
 An affidavit made by a County Crown Attorney proving a debt due to the 
 Crown by an absconding debtor was held sufficient : IteijiiM v. .S'<(!Crtrf, 8P.K, 
 297. On a motion to set aside the writ, it was held that any defect in the aft- 
 davits on which the order for the writ was granted, might be suiiiilied by the 
 affidavits filed in answer to the motion : Ih. Where a defendant had by hu 
 
ABBGONDINa DEBTORS. 
 
 847 
 
 solicitor ftccipttKl Hervico of the writ with knowledge of certain allegfod irre^u- Rult 108^ 
 larities and neglected moving againHt tho writ until after the time for pleading 
 had expired, lie whh held to have waivtxl tho objection : lb. 
 
 A defendant whose family residt^d in the United States, but who for several 
 moiitliH waH in this Province iiurchasing horses for the United States Army and 
 contnujtiii},' debts therefor with the declared intention of moving iM'nnaneiitly 
 into Canada, was hel(l to be sufficiently a resident within Ontario, to lie within 
 the Act : liimiinn v. Brndy, 10 U. C. L. J. 208. Whtsre the deponents reside far 
 from tlie debtor, the gnninds of their belief should lie set out : Bank of Upper 
 Cannila v. Simfford, 2 O. H. 373 ; and see Rule VM). Where the affidavit stated 
 that the (lefendant " has left the Province or is concealed within the same " it 
 was held snrtiuieiit : Totten v. Fletcher, T. T. 2 & 3 Vict. ; Har. & Jos. Dig. 3, 
 The attidavits nmst show that the defendant is, or was, a resident of Ontario : 
 Hiijiiins V. Ilrdili/, 10 U. C. L. J. 2(iH. It is not sufficient to describe the debtor 
 as "lately doing l)Usiiu)SH " in Ontario, nor to describe him as having "departed 
 from Canada "' : Ih. 
 
 A claim for unliquidated damages is not one upon which an order for attach- 
 ment can be obtanied : see t'ldrk v. Anhjield, E. 1'., 7 W. 4 ; Har. & ,Fos. Dig. 
 41!M. 
 
 Application for order to whom to be made.— The application for the order Motion for 
 may he inadi^ to a .huige of the High Court, or to the Master in Chambers, or order. 
 any of tlie Local .Judges, or Masters liiiviug jurisdiction in Chajiibers under 
 Rail's 3(1, 41, 13S. When! the order lias been granted by a .ludge of a 
 County Court it has been held that lie lias no jurisdiction to entertain an 
 appHcatioii by the defendant to set it aside : l)Lshir v. Itislier, 12 P. R. 518, 
 but iierhaps in this case it was not sufficiently taken into accmiiit that the 
 jurisdiction of a County Court .fudge in actions in tlie High Court is not 
 limited liiy tlie i)i'ovisioiis of tlie Statutes: K. S. O. c. (!2, s. 2; and that ho 
 has now a general jurisdiction in Cliaiubers in actions in th(^ High Court under 
 the /'I'A'.v, (iver and above that conferred by the Statute. Where the amount 
 claimed is within the jurisdiction of the County Court the applicaticm may be 
 made to and tiie order may be issued out of that Court : K. S. O. c. (id, s. 3. 
 
 Successive anplicaticms may b(! made for an order for attactiment to successive 
 Judges ujKJU the sanK^ material, and an order granted by any (me of them will 
 be as valid as if it had been made by the first one, but on each subsequent 
 application on the same or different material, the , ludge should be notified of 
 every previous apjdication, though this is more as a matter of projiriety than a 
 legal right, and tfie omission to do so would not be a ground for setting aside 
 the order; Bmik of Jlamiltoa v. naine{'2), 12 P. K. 43i). 
 
 Form of Order.— The Statute (see R. S. O. c. (Mi, s. 2), enacts that the order is Form of 
 to direct a writ of attachment to issue from the High Court and is to apiKjint <"^der. 
 the time for the defendant's putting in sjjecial bail, which time is to be regulated 
 by tho distance from Ontario of the {)lace to which the absconding debtor is 
 supix)sed to liav(! fled, having due regard to the means of and the necessary time 
 for poHtal or other communication. 
 
 It was formerly Iield to be unnecessary for the order for the writ to state the 
 amount for which special bail is to be put in : Regina v. Steirart, 8 P. R. 297. 
 The sum should, however, now be named in the order of attachment, and the 
 amount sworn to on the affidavits in which the onler is obtained is the amount 
 for which siK'cial bail must be put in : lb. at i). 300, and see Rule 1095. 
 
 The liulcii give no form of order of attachment. The following fonn is 
 therefore suggested, based ujwn the fonn of the writ prescribed by R. S. O, 
 1887, c. ()8, s. 4. 
 
 Fnrm af Order of Attachment, ' • 
 
 In Thk High Court op Justice. . 
 
 Division. 
 
 Date, 
 
 (Style of Cause.) 
 Upon the application of the above plaintiff, and upon hearing read the writ of 
 inmmons and the affidavits of, etc., and upon hearing the Solicitor for the 
 
 
 
 ^ 
 
848 
 
 KX'4'UAOIIDINAHY liEMUUIKS. 
 
 
 
 
 'iuai::! 
 
 the Kiinif. 
 
 (lays utuT till' 
 mirvicf, uuiist; 
 ,) in thin 
 
 Rule 1089. It Ih (trdfrtMl tliiit the SluTitF of tlic (-'(miity ot , I'tc, do 
 
 Httiicli, Mci/.c and mifclv kffii all tin- riuil iiiid ihtmoiiiiI priiju'ity, cri'dits ami 
 clfci'ti, togctlii'i' with nil fvidciit't'H of titltj or dclits, l)(M)kNof acciniiit, vimclitrs 
 and papcM Ix'lonKin),' tliiTfto, of C. I)., toHi'uurc and rfiitiKfy tiii' pliiintitf A, H, 
 a cjcrtani dt'l)t ("/• demand) of i? (Iln' .tiini sii'uni In), with liis c().>tM df action, 
 
 and to Mati.tfy the debt and drniaud of hucIi other creditors of the Miiid C. |), as 
 shall (Inly place their Orders of Attachment in the hands of said Shcrilf or 
 (otherwise lawfully notify him of their claim, and didy prosecute 
 
 And it is further ordered that the saiil <J. 1)., do within 
 service of this order on him, inchisivu of the day of such 
 special hail to lie cntunid fur him ill 
 action. 
 
 And the said C I), is hereby required to take notice that liis real iiiul 
 personal proja-rty, credits and etl'ects in (Jnt:i.rio, have lieen iiereliy oiderMlto 
 l)e attached at the suit of the said A. B., and tii;it in defaidt of ins piittinj.' in 
 special bail as aforesaid, tlu' [said A. }J. may, by leave of the Court or a Judgt, 
 proceed in the uctiuu to jud^nient and oxecutiun, and the] (u) said Sheriff uiiy 
 sell the proiierty so attached : 
 
 And it is further ordered that the said Sheriff, as soon as he lias txc'Uted 
 this order, do return the sanie with the inventory and appraisement of A'lmt 
 he has attached thereunder. 
 
 Memorandum to he subscribed or indorsed on the Ordir. 
 
 N.B. — This Order is to be served within six months from the date tliereof, 
 or if renewed, then from the date of such renewal, including tiie day uf such 
 date, and not afterwards. 
 
 See R. S. O. 1887, c. (3G, Sched. 
 
 Effect of Attachment. — The placing <>f the order of attachii' -iit in thf 
 Sheriff's hands does not of itself bind the gtxKls of th(i debtor, tlieru nni»t ijca 
 levy made thereunder : Putter v. Varmll, \) C. P. 442 ; neither does the order 
 bind the debtor's 'ands until actual seizure : Kinijsmill v. Witreaer, 13 U. C. 
 Q. B. 18 ; Jinbinson v. Benjin, 10 P. R. 127. Where there hiul been no seiziiri' 
 under the order until after a ji. fa. had been placed in the Sheriff's hands, the 
 latter was formerly entitled to priority : lb. Since The Creditors I'liief Act 
 am) s. 50 of The Aliscondiny Itebtars Act, howevi'r, tlu're will be no such 
 priority. Formerly where ])roceeding8 under The Alincondiinj Jkbturs ,lc( 
 were taken prior to the delivery of an execution to the Sheriff, it was held that 
 The Creditors Relief Act did not apply; but the distribution of the proi^rty 
 attached took place under The Abseondiuij Debtors Act, and creditors hud to 
 recover execution for their debts in order to participate in the proceeds : Mwjii: 
 V. Pearson, 8 Ont. 74.5. 
 
 Whether under that Statute as revised it is any longer necessary for 
 other creditors to recover execution is not very clear. In K. S. 0. 18*', 
 c. ()8, s. 28, there was an express provision that where several persons 
 sued out writs of attachment against an absconding debtor the proceeds 
 of the property attached were to be rateably distributed among siicu of the 
 plaintiffs in such writs as obtained judgments and sue out executions, but tliis 
 provision has been omitted. 
 
 By R. S. O. 1887, c. ()6, s. 20, it is provided that "in case the jirojierty and 
 •efifects of the absconding debtor are insufficient to satisfy the executions and 
 other claims certified, n(me shall be allowed to share, unless their proceedings 
 under this Act, (i.e., The Abscondiny J)cbtors Act), or The Crediturs lieliefAct, or 
 the provisions of The Division Courts Act respecting ab.sconding debtors were 
 
 (a) Query whether the words here in brackets, taken from a form of the old 
 writ of attachment, should not be omitted, as now that the action is com- 
 menced by writ of summons like any other action, the plaintiff may proceed to 
 judgment, if no apiiearance or defence is entered ; and the consequence of not 
 putting in special bail would seem to be that the sheriff may soli the projierty 
 attached. 
 
ABSCONDING DEBTORS. 
 
 849 
 
 , ctU,, (111 
 
 •iipcrty, LTfilits uiiil 
 if iiccciimt, viiiiclicrs 
 ,■ tlic pliiiiititf A. U. 
 
 I lii.s co>tM nf aetidii, 
 of the siiiil (!. I>. IIS 
 » (if i-uid Shfiitf (ir 
 ieoutf the Niuiii'. 
 
 (lays ivI.kTtlie 
 
 HUch Hul-viw, cuilw 
 
 ,) in this 
 
 II tluit liin mil iiml 
 I'll luiri'liy iirdt-riMl til 
 uilt (if Ins imttiiiKin 
 lu'Cdurt (!!■ iv.liulgf, 
 I ((( ) said Slivritf may 
 
 1 us lie has (rxc-utcd 
 ,[)l)niis('iiu'Ut uf Aliat 
 
 he Orilii: 
 
 •om the date thereof, 
 ling the day of such 
 
 ,f attachii' 'ut in the 
 ,.l)t()i', tlicro nnist Iw a 
 loither d(ies the order 
 V. Wiiiriu'r, 13 U. C. 
 re had been no seizure 
 he Slieritf's hands, the 
 I,' Creditors lidiej Ad 
 lii'i-e will be n» such 
 iseandiwj l)cljtnr.i M 
 heritf , it was held that 
 )uti(m of the probity 
 t and creditors had to 
 uthein-oeeedB-. Ma'^J^e 
 
 lunger necessary for 
 r. In U. S. U. 1S(. 
 where several persuiw 
 r debtor the pwceeds 
 ited among such of the 
 uut executions, but tins 
 
 tcase the property and 
 
 isfy the ex€«ution« and 
 
 nless their proctHidings 
 
 c Creditors Uel^etA'^t<'>^ 
 bsconding debtors were 
 
 p'fi^^^irrformottheold 
 ;hat the action is cm • 
 plaintiff may in-ocedt^ 
 the consequence of not 
 ff may sell the proi^rt) 
 
 ooninienced within hIx iiionthH from the date of tin- first writ of attiiehmtint." Ruled 
 Hv the following' s- '-*7, it in alwi provided that " the ( 'oiirt or a. Indue may delay 1090-1093. 
 tlic (iistriliiitiiin in order to ^i^e reaHoimble time for tliu obtaining of judgment 
 or allowiiiiec (if elaiins by personH who have eommeneed proeee(lingM in dno 
 liiiic against the i'* tcdndiiijr debtor." 
 
 'i'lii' |ir(ilial)le effect of these proviHions Im tliat it in not r.eceKHary for other 
 iTtKlitors to jiniceed by attaclinient, but, where any execution iM in the. Sheriff h' 
 hands, that it will suffice for other creditors to olitain executions or certiticateH 
 under 'I'll'' t'redilnrs Iteliif .1(7, and that to tiiat extent the decision in Mar/iit 
 V. I>i'iirviii, sii/irii, nuiy now i)e (ionsidered to be HUperseded. The first attach- 
 ing crcdit'ir is entitled to priority as against other creditors for his costM of 
 iisuing the attiichmeiit and tiie Slieriff'H fees for executing it, and also the costB 
 nf (ilitaining an order to mdl the property : IhirliiKj v. Smith, 10 I'. H. 3()0; 
 and see K. S. (). 1SH7, c. Oti, n. 20, CI); lliKjhes v. Ineld, « 1». R. 127. 
 
 1000. Every such attaching order shall be dated on Date. 
 the day on wliich it is made, and shall remain in force as 
 loii},' as the writ of summons is in force. 
 
 The wiit (if sniiimoiis reuiaiuuS in force for 12 months : Ride 238. 
 
 1001. The plaintiti" may, at any time within six ij'jljj'^the'" 
 months from the date of the original order of attachment, within r ix 
 upon application to the proper officer, obtain one or more "'°" 
 certified copy or copies of the attaching order, which may 
 
 be delivered to any Sheriff other than the Sheriff to whom 
 the original order was delivered, for the purpose of attach- 
 ing the property, credits, or effects of the defendant in aid 
 of the original order. Sec R. S. 0. 1877, c. (58, s. 7. 
 
 Six niiintiis was mentioned in K. S. (). 1877, c. (18, s. 7, because that was tlm 
 (luratii)ii (if the writ of attachment. It wouhl have been more eoiiHistent with 
 link 101)0 to iiave limited twelve moutim instead of nix months in the above 
 
 1003. In actions against absconding debtors, the writ service, 
 of summons and order of attachment may be served in like 
 maimer as in ordinary actions. Nctc. 
 
 Tiie intention of this I'lile would seem to be to enable a plaintiff to proceed in 
 the action upon such service as would enable him t(» obtain judgment in an 
 i'l'dmary iictidii, and to abrogate the former i)ractice uniler sec. 8, of K. S. O. 
 IW", c. ('ill, liy which an ajiplioation for leave to proceed after .•service of the 
 writ, or i-e.asde'vhlc efforts to effect service, where the defendant has not put in 
 «|iecial hail, w.is necessary : see .'51 Vict. c. 2, s. 4. 
 
 R. S. 0. 1887, c. <i(i, s. 1, is iis follows: 
 
 f*. ''In ease it is shewn by affidavit to the C(mrt or a .luflge, that a copy of 
 the writ was personally served on the defendant, or that reas(jnable efforts were 
 made to effect service, and that the writ came to his knowledge, or that the 
 defendant has absconded in such a manner that after diligent iwpiiry no infor- 
 mation can he obtained as to the place lie hasfltxl to, the( 'ourt or.ludge, if the 
 defendant has not put in s|)ecial bail, may either require some further attempt 
 til effect s(.rvii;e or may appoint some act to be done which shall be deemed good 
 service, and thereupon ((jr cm tht^ first application, if the Court or .fudge thinks 
 nt), the Court or .Fudge may authorize the plaintiff to proceed in the action in 
 n'.ich maimer and subject to such conditions as the Court or Judge may direct 
 •ir impose." R. S. O. 1887, c. (IC, s. 8. 
 
 .T..V. 54 
 
Plaintiff to 
 
 prove 
 
 claim. 
 
 
 850 EXTRAORDINARY REMEDIES. 
 
 Rules Tinder that section wervicH of an attachment on the wife of tlie debtor was 
 
 1093, lOM. all(jwecl as g(X)d service upon the debtor, on its being siiewn by affidavit that 
 the plaintiff after diligent inquiry wan unable to ascertain the (Iclitur's wheru- 
 al)out8 : Mc/)oii(/(iU v. (iilclirint, 3 C. L. iJ. 28. An affidavit f(n' tiie allowance 
 of substitutional service was required, among oth(*r things, to state what efforts 
 have been made to effect personal service : Stephen v. Dennie, 3 C. L. J, 0!), 
 
 By the practice under the Statute tlie jjlaintiff could take no step until the 
 thne months aHowed for the defendant to put in bail liati expired : hanker \. 
 (•rijh ■(, 3 O. S. 103. The intention of this Rule would seem to be to allow the 
 action to pnxjeed in the same maimer as in an ordinarj' actioti. 
 
 10!>3. Before the plaintiff shall be entitled to sign 
 judgment by default he shall file an affidavit, proving the 
 amount of the debt and damages claimed by him in such 
 action, after giving credit for all payments and ciaij^s 
 which might be set off or lawfully claimed by the debtor at 
 the time of making the affidavit. See 1{. S. 0. 1877, c. 68, 
 s. 9. 
 
 This Rule, it is presumed, supersedes the provisions of R. S. (). 1887, c. OB, 
 «. It, which is as follows : 
 
 IMaintitf " !). Before the jjlaintiff obtains judgment he shall prove the amount of the 
 
 niust prove ,i(j),t, ,,r damages clanned by him in tht! action, eitiier before a jury on an 
 assessment, or by reference as provided in section 1 of The Ael ns/iirliiiii Arl'i- 
 tniliiiti (dill Jlejei-eiiee.s, according to the nature of the case, and no execution 
 shall issue until the ))laintitf, liis solicitor or agent, has made and filed an 
 affidavit of tlie sum justly due to the plaintiff by the absconding dehtor, afttr 
 giving him credit for all iJaymeints and claims which might be set off "V law- 
 fully claimed by the debtor at the time of making tiie affidavit, and the 
 execution siiall be endorsed to levy the sum so sworn to with the taxed costs, 
 or tile amount of the judgment including the costs, wiiichevei is tlie smaller 
 sum of the two. li. S. O. 1H77, c (18, s. it.'" 
 
 Proof of tlie (lel)tor's signatiu'e to a note, without i)rnof of the plaintiifs 
 being the ])ayees, wasct)nsidered sufKcient proof of thedebt : AppUtim v. Dtqiir, 
 4 U. C. (^ 15. 247. 
 
 his claim, 
 •etc. 
 
 Rev. Stat. 
 >c. d:i. 
 
 Defendant 
 may be let 
 in. 
 
 10!I4. The Court or Judge may, either before or after 
 final judgment, let in the defendant to put in special bail 
 and defend the action, in the same manner, and subject to 
 tlie same rules and discretion, as on a like application in 
 an ordinary action. Sec II. S. 0. c. 08, s. 10. 
 
 This Rule, it is ))resumed, is intwnded to supersede K. >S. (). 1887, c. liO, ». W, 
 which is as follows : 
 
 10. " The Court or a Judge at any time before or after final judf,'nii'nt, Imt 
 before execution executed, upon an ai)i)lication supiiorted liy iiffidavit.s satb- 
 fiietorily iiceountiug for tlu^ defendant's delay and defaultand disclcsin)? at,'iHin 
 defence on the merits, may, having regard to tlie time of tiie apphcation mm 
 otiier circumstances, let in tiie defendant to put in special liail and to defcwl 
 tlie action. K. S. (). 1877, c (iS, s. V)." 
 
 Ai)i)licati(m for leave to put m bail is of course only necessary when the 
 di'fendant has omitted to do so within the time limited liy tiie older. 
 
 The special bail required to be put in is the [same as is required w'lro a 
 <lefendant is arrested on mesne process 
 1095. 
 
 see lUtle 10G2, and iu)tL'.s and Im 
 
ABSCONDING DEBTORS. 
 
 851 
 
 wife of tliiulobtorwas 
 Hhewn by affidavit that 
 tain thi' del itor's where- 
 davit for the allowauct' 
 gs, to Htato what efforts 
 ?fniMC, 3 C. L. J. 6». 
 
 1 take no «tei) until the 
 had expiivd : Banker \. 
 .seem to be to allow the 
 ' action. 
 
 entitled to sign 
 
 davit, proving the 
 
 by him in such 
 
 lents and claims 
 
 [ bv the debtor at 
 
 S. 0- 1877, c. 68, 
 
 s of R. S. (). 1887, c. 08, 
 
 m)ve the iimoinit of the 
 
 er y)ef()re a jury on an 
 
 The A(i n.-^inctiiuj Arl'i- 
 
 ca.se, and no executiuii 
 
 has made and filed an 
 
 iibsconding dt'litor, after 
 
 night l)e set off "V Lw- 
 
 r the affidavit, and the 
 
 to witii the taxed costs, 
 
 vliichever is the smaller 
 
 it i)roof of the plaintiffs 
 :iel)t : Ajijildon v. Dn-iitr, 
 
 her before or after 
 put ill special bail 
 ner, and subject to 
 like application in 
 s. 10. 
 
 K. S. (). 1.SH7, c.(i(i,s.lO, 
 
 after final judfjniont, Imt 
 lotted by atfidavits satis- 
 anltanddiscli'sinKat.''"'* 
 ne of tiie ai.plicatioii am 
 lecial bail and to defend 
 
 only necessary when the 
 ;ed i)y the order, 
 le as is reqnire<l when a 
 L0C2, and notes, and «"'« 
 
 Formerly when a defendant entered an ajJiiearance, instead of putting in Rules 
 si)ecial hail as reqnired by the writ, it wa.s held to be a tiseless proceeding : 1096, 1096. 
 Itei/iiiii V. Steimrt, 8 P. K. 297 ; the only way in which the defendant could 
 entitle himself to defend the action being by putting in special bail : Offay v. 
 Ofa,,, 20 U. C. (.1 B. 3G3. 
 
 Under the present Rules, however, it would seem to be intended that the 
 defendant may appear and defend the action in the same way as in any other 
 action, and that special bail is only required to enable him to obtain the return 
 of his property under sec. 12 of the Act. 
 
 Altlioiigh a defendant had not jjut in special bail, his counsel, it would 
 seem, under the former practice, might nevertheless appear at the trial, cross- 
 examine the plaintiff's witnesses, and give evidence in mitigation of damages : 
 Offay V. (>//!'//, 2G U. C. Q. B. 3()3. 
 
 Formerly, also, another attaching creditor of the abscomling debtor might 
 api)ear at the trial of the ])laintiff's claim and cross-examine the plaintiff's 
 witneHses, and address the jury against the plaintiff : lAtvis v. liuhcr, 13 C. P. 
 500 ; and such other creditor might also move for a new trial of the plaintiff's 
 action upon affidavits, showing frauf^ and coUusicm between the plaintiff and 
 the defendant : Ih. 
 
 The validity of a judgment might formerly have been attacked, and may 
 •Still he attacked, by another creditor of the debtor in an independent prf)oeen- 
 iiig ; Mchiiiic/il V. litiicr, 12 (ir. 48 ; and formerly also by an interhxjutory appli- 
 cation in the action, in which the impeached judgment was recovered : Hunk 
 of Minifmtl V. liHrnham, 1 U. C. (l B. 131 ; While v. LonI, 13 C. P. 2H9; see 
 also £(■)•((/( v. Whmt, 14 (J. P. 51 ; Dkh^on v. MvMahon : Ih. .521. See R.S. O. 
 1877, c. 08, s. 21 ; but this section was rejiealed by 4(> Vict. c. (5, s. 4, ((3) ; (.see 
 nowR. .S. ()- 1887, c. 00, s. 20) and no similar enactment mafle. So that it is 
 doubtful whethi'r a third party can now intervene by such an interlocutory 
 application. 
 
 The Master in Chambers has no jurisdiction to set aside a judgment 
 entered pursuant to the finding of a County Court .ludge upon a reference, at 
 the instance ijf another creditor who wishes to be let in to defend: Wills v. 
 Corruil, 10 P. H. 142. 
 
 1095. The special bail (whether put in within the time special 
 limited by the order, or within such time as the Court or a put in." 
 Judge directs,) shall be put in and perfected in like manner 
 as if the defendant had been arrested for the amount 
 sworn to on obtaining the attachment. See K. S. 0. 1877, 
 c. 68, 8. 11. 
 
 This A'k/c, it is presumed, is intended to supersede R. S. O. 1887, c. 60, s. 11, 
 which is as follows ; 
 
 "11. The spi'cial bail (whether ])nt in within the time limited by the writ or 
 within .s\ieh time as the Court or a Judge directs), shall be [uit in and perfected 
 in like uiauuer as if the defendant had be(>n arrested on a writ of C(qjiai> for the 
 amount sworn to on obtaining the attachment ; and after being .so put in and 
 (wfeeted, the def^'iidant shall be let in to defend, and the action shall proceed 
 a.s in ordinary cases. R. S. O. 1877, c 08. s. 11." 
 
 10!M>. Upon the defendant so putting in and perfecting Pj-opoity 
 special bail, all his property, credits and etiects attached tmiTear 
 in the action (excepting any which may have been disposed 
 of as perishable, and then the net proceeds of the goods so 
 disposed of,) shall be restored and paid to him, unless . 
 
852 
 
 EXTRAORDINARY REMEDIES. 
 
 Rule 1097. there be some other lawful ground for the Sheriff to with- 
 hold or detain the same. See R. S. 0. 1877, c. 68, s. 12. 
 
 This Rule, it is presumed, is intench.'d to supersede K. S. 0. 1887, c, 60, s. 12 
 which is as follows : 
 
 "V2. Upon the defendant so putting in and pi'rfecting sjiecial Iwil, alllm 
 j)roi)erty, credits and effects attached in that action (excepting any which may 
 have l)een disposed of as perishable, and tlien tlie net proceeds of thcgowlssd 
 disjKJsed of), shall he restored and paid to him unless there he some other law- 
 ful ground for the Sheriff to withhold or detain the same. K. S. ( ). 1877, c 6)< 
 s. 12." 
 
 Motion 
 against 
 order. 
 
 "1 
 
 V 
 
 1097* If at any time before the execution issues it 
 appears, upon motion, that the defendant was not an 
 absconding debtor at the time of obtaining the attaching 
 order, such defendant shall recover his costs of defence, to 
 be deducted from the amount of the plaintiff's claim or 
 judgment ; and the plaintiff sball be entitled only to judg- 
 ment or execution for the excess, if any ; and if the taxed 
 costs of the defendant are greater that the amount of the 
 plaintiff's claim or judgment, then the defendant shall be 
 entitled to an order for pay.'oent of the excess forthwith. 
 See R. S. 0. 1877, c. 68, s. 19. 
 
 This Riilf, it is presumed, is intended t(> suiwr-iede R. S. 0. 1887, c. 66, e. 19, 
 which is as follows : 
 
 " 1!). If, before execution issues, it api)ears to the Court u|ion niotiim and 
 upon hearing the parties by affidavit, tl at the defendant was not an alii<condiiip 
 debtor withm the meaning of this Act, fit the time of the issue of tiiewrit»f 
 attachment against him, he shall recover his costs of defence, and tlie plaintiff 
 shall not have execution for the amount of tl'e verdict rendf'vcd or ascfrtaincd 
 upon reference or otherwise recovered in the action, unless the same exceeds, 
 and then for such sum only as the same exceeds the amount of the taxed c<)st,i 
 of the defendant, and in case the sum so recovered is less tlian tlie taxed cosM 
 of the defendant, he shall be entitled, after dediicting the amount of thesiiiu 
 recovered from the amount of the taxed costs, to take out exeoitinn forth; 
 balance. R. S. C). 1877, c. 08, s. 1!)." 
 
 The intent with which the debtt)r left the Province can be tried on affidavit 
 on an application to .set aside the attachment: Jarknon v. Ihnnlnll, (i P. R. W'. 
 
 When property had been sold under the attachment, the Coiu't on s«ttiiigit 
 aside, ordered tiie Sheriff to i)ay over the moneys realizecl to the defendant, 
 and directed that no action should be brought for anything ilone under the 
 attachment : Mart v. /iiitUin, '23 G. P. (113. 
 
 2. Replkvin. 
 
 The actiim of replevin was originally the form of action for the recovery "f 
 g<KKls wnmgftdlv talten out of the jMJSse.ssion of a person under a distress ; hut 
 early in the history of Upjier Caniwlian Law the form of action was extended 
 to other cases in wliich the goods sought to Ije recovered had not necesgari y 
 been taken out of the i)laintiff'« possession, but were merely vroligfully 
 detaine<l by the defendant. Actions of trover miglit result in the return of the 
 goods, but' were also for damages for the unlawfully taking or detaining w 
 g(Kxls, and tlie value of the g(K)ds miglit be recovered. The ol>j( ct of an actum 
 of replevin was to obtain tlie g(Kxls in the first ])lace, and therefcre this remedy 
 was extended, so as to be employed in cases in which the obtaining of the gixxls 
 was the imjiortant matter. 
 
KEPLEVIN. 
 
 853 
 
 i. S. O. 1H87,c.G6, S.19, 
 
 C. S. U. C. c. 21), s. 1, and R. S. O. 1877, c. 53, s. 2, provided that an action Rule 10»7. 
 of replevin might be brought : 
 
 (1) Wiiere personal jiroperty has been wrongfully distrained under the circum- 
 stances in wliich by the law of England at the date of the Con. Stat. U. C. 
 (viz., Sth Dec, 185!t), replevin might be brought. 
 
 (2) Where trespass, or trover, would lie for the wrongful-taking or detaining 
 of jiersonal property. 
 
 This is in effect the })resent law as embodied in R. S. O. 1887, c. 55, ss. 2, 
 and 3, whicli are as follows :— 
 
 2. Where goofls, chattels, deeds, bonds, debentures, promissory notes, bills of When 
 exchange, hooks of account, papers, writings, valuable securities or other Koods may 
 iHTsonal i)r(iperty or effects liava been wrongfully distrained under circum- "? ^^l''®" 
 stances in which liy the law of England, on the 5th day of December, 1859, ^"^ 
 replevin might hare been made, the person complaining of such distress as 
 
 unlawful may bring an action of rejUevin ; or where such goods, chattels, 
 pruiK-rty or effects have lieen otherwise wrongfully taken or detained, the 
 owner ()r other person capable of maintaining an action for damages therefor 
 may hring an action of replevin for the rec()\'ery of the goods, chattels, proixjrty 
 iir effects, and for the recovery of the damages sustained by reason of the 
 unlawful caption and detention, or of tiie unlawful detention, in like manner 
 as actions are brought and maintained by iwrsons complaining of unlawful 
 distresses. R. S. O. 1877, c. 53, s. 2. 
 
 3. No party to an action or proceeding, in any Court, shall replevy or take (tooiIs 
 
 out of tiie custody of the Sheriff, liailitf, or other officer, any j)er.sonal jiroperty seized not 
 seizetl by him under process against such party. R. S. O. 1877, c. 53, s. 3. ''° ]'^. ^^' 
 
 Under section 2, replevin will lie in Ontario though there has been parties, 
 no wrongful taking, Imt a detention only is com|)lained of : Ifeal v. /'alter, 2(> 
 U. C. (i. H. .'')7H, and though both a wrongful taking and a detention are alleged, 
 for every detention is a new taking : /''. 
 
 Replevin may be brought on an imiiroiier distress for school rates : Apph'- Cases of 
 ijurth V. (Iraliam, 7 ('. P. 171; and see Ha/pin v. ('older, 2(» C. P. 501; .t.«/r('.' distress. 
 V. Miiitiiiiu/, 38 U. C. (i. B. 345; or for other ta.xes, ISari/aiil v. Citi/ of Tonmla, 
 12 C. P. 185. 
 
 Where a distress is properly made for some taxes, and also for other .sums not 
 pitiperly collectable, it would seem that replevin would not lie until what is 
 properly due has been paid: Curlielt v. .Inlnitildii, 11 C. P. 317 : Goods impro- 
 Iierly pledged or sidd, by a person having no right thereto, may be replevied by 
 the owner : liush \. Frfl, 15 Ont. 122. Formerlj', goods seized mider an 
 attachment from a Division Court might have been replevied by a third party 
 claiming tliem us his own: Anmlilw J/ii/i/liis, 11 V. C i.^. li. I'M ; but the 
 Iiro|)er remedy of the claimant is now to jiroceed under R. S. O. c. 51, ,ss. 2G() 
 (■/ s'-'v. : but s«. Jhld V. MehniKilil, 2(J C. P. 147. 
 
 As being in the custody of the law the following have been held to be not Goods in 
 replevialih' ; A vessel in the liaiids of a collector of customs .seized for breach rimtodia 
 of revenue laws : Sriitt v. Meltiie, 3 P. R. Ki ; goods in tht^ hands of an official ''V/i". 
 assignee in ins(dvency : Jiurchiu v. Sutton, 7 P. R. 14 ; and see tlie question 
 as to liow far goods .seized under «^\ecution or attachment are protected from 
 the remedy by rei)levin di.scus.sed in Jnmison v. Kerr, 6 P. R. 3. 
 
 Replevin will not lie again.st a i)oimd-keeiK'r : lUinttxon v.JIcnrii, 8 Ont. 625. 
 
 hi ivpleviii against one i)er.son goods cannot be taken out of the peaceable Goods in 
 possession of another without notice or demand; If. W. Ilii. Co. v. il/oA'wrtH, possession 
 2Sr. 0. ( >. B. 52H ; S^or.ter v. Snriu'iei; 7 Out. Ai)!). 4!»7 ; Ilouri>/<in v. Driscoll, 8 "f t'"*"'^ 
 P. R. 1.S4. / . ' . i.ursou. 
 
 Plaintiffs in jKissessiiin of certain lumber limits were held entitled to main- 
 tain replevin against a wrong-doer in respect of saw-logs cut on the limits, 
 tlwugh by reasini of an infinnitv in the license they might have no title as 
 against tlie Crown : Oilinour v. iiiirk; 24 C. P. 187. 
 
 Under the terms of the C. S. U. C. c. 211, s, 1, it was formerly held that 
 where thoi'e was not sufficient evidence to constitute a conversion of the goods 
 
'^ ^"■"""■■(■■Piflii^"! "I .;i,ll,".l 
 
 854 
 
 EXTRAORDINARY RE5IEDIES. 
 
 Bules by defendant, ho as to an[)ix)rt an action of trover, replevin would not lie : 
 
 1098, 1099. SvutUeti v. (ialUujhcr, 2() C. P. 531 ; but the old learning on the subject of con' 
 verni(ni is not iin|K)rted into the .system introd\iced by the.Tud. Act: Stimmii v 
 Block, 11 Ont. itO. R. S. O. 1887, c. 55, s. 2, provides for redress whert' 
 goods are wrongfidly taken or detained, in favour of the jjer.sou callable (if 
 maintaining an action for damages therefor, and in such cases the (|iu>stiiin 
 is, whether there has been such an unauthorized dealing witli the iihiintill's 
 )iroperty as has caused him damage ; and if so, to what extent he lias suiitained 
 damage : >Y/«i,w« v. Block, xupra. 
 
 re'iev^li *0»S. The Writ of rei^leviri is hereby abolislied. When- 
 abolished, cvcr a party is entitled to replevy goods he may obtain an 
 
 order therefor in an action commenced by writ of summons. 
 
 New. 
 
 The order issued, of which a form is given in the Ajipendix Form l.j,3, 
 contains what was formerly c{)ntained in tlie writ. 
 
 The original liiilc resjiecting the commencement of actions, did not apjily to 
 actions of reiilevin, so that a writ of re])levin, declaration and iivourv wilder 
 the old iiractice were neces.sary : see ('(niijxin v. Lucax, !) P. R. li'2 ; M'ulhm 
 V. Cowan, Hi. 144. 
 
 An action of replevin is .since this I'ulf to be commenced like any otlur 
 iiction, by writ of sunnnons, and tht; return of the goods is to he olrtained 
 by order under Rule 10!!!), after the action is .so commenced. 
 
 Wlieu mo 
 tion for 
 order ro- 
 quirod. 
 
 lOSIfK An order of replevin may be obtained, 
 
 (1) On motion therefor on an affidavit by the person 
 claiming the property, or some other person showing to tbe 
 satisfaction of the Court or a Judge, the facts of the wrong- 
 ful taking or detention which is complained of, as well as 
 the value and description of the property, and that tbe 
 person claiming it is the owner thereof, or is lawfully 
 entitled to the possession thereof (as the case may be) ; 
 
 On prrndpe. (2) Or Oil pnecijic if the person claiming the property, 
 his servant or agent, makes an affidavit which shall be 
 entitled and filed in the Court out of which the order is t) 
 issue, stating : 
 
 Affidavit to (rt) That the person claiming the property is the owner 
 
 order on thereof, or that he is lawfully entitled to the possession 
 
 thereof, describing the property in the affidavit ; 
 
 (b) The value thereof to the best of his belief; 
 
 (c) That the property was wrongfully taken out of tbe 
 possession of the claimant, or was fraudulently got out of 
 his possession, within two months next before the making 
 of the affidavit ; 
 
 {d) That the deponent is advised and believes that tbe 
 claimant is entitled to the order ; 
 
 vrcecipe. 
 
Aiipeiidix Fonii 153, 
 
 believes that tlie 
 
 REPLEVIN. 
 
 855 
 
 (c) And that there is good reason to apprehend that ^"^^ ^'"'• 
 unless the order is issued without waiting for a motion, 
 the delay would materially prejudice the just rights of the 
 claimant in respect to the property. ^ 
 
 (3) Or on prcecipe (in case the property was distrained •^gjJe'ou"^^ 
 for rent or damage feasant), if the person claiming the precipe it 
 property, his servant or agent, makes an affidavit (which perty^w 
 shall be entitled and filed in the Court from which the for^reni 
 order is to issue), stating. 
 
 , as 
 •ainod 
 for rent or 
 damage 
 foasaut. 
 
 (a) That the person claiming the property is the owner 
 thereof, or that he is lawfully entitled to the possession 
 thereof, (describing the property in the affidavit) ; 
 
 (/;) The value thereof to the best of his belief ; 
 
 (c) That the property was taken under colour of a distress 
 for rent or damage feasant, and in such case the order 
 shall state that the defendant has taken and unjustly 
 detains the property, under colour of a distress for rent or 
 damage feasant (as the case may be). R. S. 0. 1877, c. 53, 
 rf.6. 
 
 (4) Except as hereinbefore mentioned no order of replevin 
 
 shall be issued. 
 
 Tlie orrli^r is issued on iirdr ipc {hy the officM^r in whose office appearance in 
 the action is recpiircd to be (Altered : see Rii/ffi 20 and 25), in cases where the 
 goods liave been taken out of the iihiintitf' s possession, or distrained for rent 
 or daniaj^e feasant. A special ajjplication is necessary inider chiuse (1) in 
 other cases. 
 
 The latter application is made in Chambers ex parte unless tlie Judge directs 
 notice to l)e ffiven : Rule ll(K). 
 
 The affidavit for a pro'ripe order is to be by the person claiming the 
 property, his servant or agent. An affidavit not describing the deponent as 
 acrvaiit or agent, b\it using tiiu words " now acting for the said (plaintiff) " wa.s 
 held to be iiisutticient, but for the fact that it further shewed fact- from which 
 the agency might be inferred : Arnold v. Hamilton, 1 P. R. 2(53. 
 
 The affidavit on special application imder clause (1) may be by any one 
 cognizant of the facts necessary to be sworn to. 
 
 In either case tb.t iittidavit must be sufficiently explicit to enable the Sheriff 
 to identify the property : Jonen v. Cook, 2 P. R. 3!)() ; Hooriqan v. Driscoll, S 
 P. R. 184 ; and the description must be inserted in the oi-der : Rule 1102. 
 
 An objection that there was in fivct in) taking or detention is lujt a groimd for 
 setting aside the order ; that is one of the questions to be determined in the 
 action : 'iilchrid v. Conner, 11 U. C. C^. B. li)7. 
 
 An order will not be granted to replevy a vessel seized for breach of the 
 revenue laws ; Scoff v. McRar, 3 P. R. 10; neither should the order be issued 
 on iirivii/ic in s\ich a case : lb. 
 
 Wiient the order is issued on prwcipe the Sheriff takes the property under it, 
 hut does not replevy it without further order directing him to do so, except 
 where the jjroperty was distrained for rent or damage feasant : Rule 1100. 
 
 ^ ,* ■,■ ■ Si' 
 

 856 
 
 EXTRAORDINARY REMEDIES. 
 
 11 00* Where a motion for an order is made, the Court ( 
 
 U001103 **w» vv nere a motion lor an oruer is maue, lue Liourior 
 Discretion- Judge may proceed on the ex parte application of the plain- 
 arypower tiff, Or may direct notice to be served on the defendant to show 
 or Judge cause why the order should not issue ; and may on the cxi^ark 
 rrpucation application, or on the return of the motion, grant or refuse 
 frraiior- ^he Order, or direct the sheriff to take a bond in lessor 
 
 d arts made. 
 
 more than treble the value of the property, or may direct 
 him to take and detain the property until the further order 
 of the Court, instead of at once replevying the same to the 
 plaintiff ; or may impose any terms or condition" in grant- 
 ing the order, or in refusing the same, on the return of a 
 motion, as under the circumstances in evidence appear just. 
 R. S. 0. 1877, c. 53, s 7. 
 
 
 Defendant 
 may apply 
 to dis- 
 chartje 
 order. 
 
 IIOI* In case an order of replevin is issued, the defen- 
 dant may at any time, or from time to time, on notice to 
 the plaintiff, apply to the Court or a Judge, on atKdavit or 
 otherwise, to discharge, vary, or modify the order, or to stay 
 proceedings under the order, or for any other relief, to be 
 specified in the notice, with respect to the return, safety or 
 sale of the property or any part thereof, or otherwise ; and 
 the Court or Judge may make such order thereon as, under 
 all the circumstances, best consists with justice between the 
 parties. R. S. 0. 1877. c. 53, s. 9. 
 
 An objection that there was in fact no taking i.s not a ground fur scttiiiK 
 aside the order : Ifilchrist v. Cooper, xuprii, in note to Kutc lO'.lll. 
 
 An objection that a writ of replevin was directed to a SiieriflF w'no wiissolc 
 liquidator of the plaintiff company, wa.s over-ruled, in A/jilnt Oil ( 'o. v. iJonnellii. 
 12 P. R. 515. 
 
 This Rule applies to applications to discharge the order of replevin on the 
 merits, and not for mere irregularities : //(. 
 
 Contents of 
 order and 
 how to be 
 dated. 
 
 i-tcf 
 
 ShcrifT. 
 before he 
 replevies, 
 to take 
 bond. 
 
 /3 
 
 1109. The order shall state the description and value of 
 the projjerty, and shall be dated on the day on which it is 
 made, and may be in the words or the effect of Form No. 
 153 in the Appendix, or otherwise adapted to the circum- 
 stances of the case. R. S 0. 1877, c. 53, s. 10. 
 
 11 03. Before the Sheriff acts on the order he shall take 
 a bond [from the plaintiff with two sufficient sureties] in 
 treble the value of the property to be replevied, as stated in 
 the order ; which bond shall be assignable to the defen- 
 dant ; and the bond and assignment thereof may be in the 
 words or to the effect of Form No. 208 in the Appendix, the 
 
rdcr of rciilevin im the 
 
 REPLEVIN. 
 
 857 
 
 condition being varied to correspond with the order. ^'^^ "<>*• 
 R, S. 0. 1877, c. 63, s. 11. 
 
 The takinpr of a bond is imperative, and no act can be done under tlie order 
 until tlie necurity is given : see LhwIcsk v. Radfunl, \) V. R. 33, where the 
 seizure was set aside as irregular. 
 
 Tills I'lilf makes it clear, by the insertion of the words " from the plaintiff 
 with two sutfioient sureties," that the Mheriif is bound t<j use due care to 
 (ibtaiii a Ixmd sufficient, at the time of taking it, to answer the damages recover- 
 ahle in the event of the ))laintiff being nnsucc(issful : hvv Noriiudi v. Hain; 13 
 Ont. ")■)(( ; 14()nt. 2H7. The Sheriff nnist exercise a reasimable discretion in 
 inqnirinf; into the sufficiency of the sureties ; if he fails to do so he will l)e 
 lial)le to the defendant in the replevin action in case it restdts in his favour, for 
 ail damages to the amoinit of the jienalty naturally flowing from the wrongfvd 
 act, viz.: (wiiere tlie replevin arises out of distress for rent) the rent in 
 arrear, costs of distress and of the replevin suit, and of any action against the 
 |)rinci|)al and sureties tm the bond : J/i. 
 
 An two sutticieiit sureties an required it will not be sufficient if the i>lain- 
 titf in repli'viii and one of tlu> iireties are worth the amount of the ))enalty at 
 tiie time tlie lioiid is taken : J/i. 
 
 Simlili- that a suliscribing witness is necessary to the validity of the bond : 
 ,-wtf(/i// V. Cou^in^ 3t U. C. (^ 15. ()3. 
 
 As to tile terms and extent of the security to which defendant is entitled in 
 cases respecting goods not previously taken out of the plaintiff's possession, 
 see also Jiii/r 1104. 
 
 An action lies against the .Sheriff for refiising to assign the bond : Pactiud v. 
 MeEiniii, 31 l^ C. <^ iJ. 328. Only nominal damages were recovered where 
 tlie plaiiititf was found not entitled to recover the value of the goods, not being 
 their owner : //'. 
 
 An action on the brmd will lie, 
 
 (1) For not in'osecuting the suit with effect, i.e., not successfully ; as to 
 whlcli see ]f>As/i V. O'Jirini, 28 I'. C. Q. K. 40'} ; Mii/niniii v. Hnitkinx. 18 l^ C. 
 (^ B. 171 ; Pattinom v. Fuller, 31 V. C. (I B. 323; 32 V. C. g. B. 240. 
 
 (2) For delay in iirosecuting : see Biltchar v. Burn, 24 U. C. (J. B. 124 ; 
 Ckm-chill V. Dniliam, 2it C. P. 474. 
 
 (3) For not returning the goods : see Patterann v. Fuller, supra. 
 
 As to the damages recoverable, see Koriiiiin v. Ho/ir, 13 Ont. .V)(i. Formerly 
 the excess of solicitor and client costs of defence, over and al)ove taxed ))arty and 
 |witv costs, were not recoveralile : }Villium.'< v. Cruir, 10 Ont. Ap]). SOI ; but .see 
 m>\\ Riilr 1104. 
 
 (a) The bond shall be subject to the provisions of section Kepievin 
 8 of chapter 11 of the Act passed by the Imperial Parlia- subject to" 
 ment in the 8th and 9th years of the reign of His Majesty nfcTi" 
 King William the Third. R. S. 0, 1877, c. 53, s. 12. 
 
 For tile terms of the statute referred to, see note to Jli'li' 712, xufirii yi. 010. 
 
 3.8. 
 
 1104. Where an order of replevin is issued for any indemnity 
 personal property which had not been previously taken out Iiant^iure- 
 of the plaintiff's possession, and for which the plaintiff Jjee^jiija'"" 
 might formerly have brought an action of trespass or trover, 
 the defendant shall be entitled, if the plaintiff fails in the 
 action to be fully indemnified against all damages sustained 
 liy the defendant, including any extra costs which he may 
 
858 
 
 Rules 
 1108-1107. 
 
 Sheriff not 
 to serve 
 writ till ho 
 lias reple- 
 vied. 
 
 EXTRAORDINARY REMEDIES. 
 
 incur in defending the action ; and the bond to be taken by 
 the Sheriff or Baihff shall be conditioned, not only as here- 
 tofore required in that behalf but also to indemnify and save 
 harmless the defendant from all loss and damage which be 
 may sustain by reason of the seizure, and of any deteriora- 
 tion of the property in the meantime, in the event of its 
 being returned, and all costs, charges, and expenses which 
 the defendant may incur, including reasonable costs not 
 taxable between party and party. This Rule shall not 
 apply to cases of distress for rent or damage-feasant. 48 
 V. c. 13, s. 8. 
 
 Tliis Statute from which this Rnh is taken was |)ri)l)r,l)ly jia^^sed in ciiii- 
 sequence of tlie decision in Wil/iiiin.i v. ('rair, 10 Ont. Ajip. ;{(ll, to tiii' ctfi-t't 
 that a successful defendant in replevin could not recover as damages, the extra 
 costs he had been i)Ut to lietween solicitor and client. 
 
 lender this Jiii/i' these extra cfists are now recoverahle except in cases uf 
 replevin where the goods liav(! been distrained for rent or damage /"^s7(/l^ 
 
 The siu'eties are not discharged by the trial tieing i)ostponed on the iipiijica- 
 tion of the i)laintitf without the defendant's consent or concurrence: 0'''"h«,// 
 V. hiirhemiiilt, 14 Ont. 1. 
 
 1103. The Sheriff shall not serve a copy of the writ of 
 summons or the order until he has replevied the property, 
 or some part of the property therein mentioned, if he can- 
 not replevy the whole in consequence of the defendant 
 having eloigned the same out of his county, or because the 
 same is not in the possession of the defendant, or of any 
 person for him. R. S. 0. 1877 c. 53, s. 13. 
 
 What 
 Sheriff 
 shall do 
 when the 
 orders 
 issues on 
 prmcipe. 
 
 II06« In case the order issues on prcedpe the Sherili' 
 shall take and detain the property, and shall not replevy 
 the same to the plaintiff without the order of the Court or a 
 Judge in that behalf; but may, within 14 days from the 
 time of his taking the same, re-deliver it to the defendant, 
 unless in the meantime the plaintiff obtains and serves on 
 the Sheriff an order directing a different disposition of the 
 property ; but this Rule shall not apply in case of a distress 
 for rent or damage-feasant, under Rule 1099. R. S. 0. 
 1877, c. 53, s. 14. 
 
 toEe°r^^!i7- *J^'7* Iw case the property to be replevied or any part 
 vied is con- thereof is secured or concealed in any dwelling house or 
 any house, other building or encl« -I'.re of the defendant, or of any 
 Iheriff to other person holding the same for him, and in case the 
 ttot- Sheriff publicly demands from the owner and occupant of 
 
REPLEVIN. 
 
 85i) 
 
 the premises deliverance of the property to be replevied, ?Ji^|j„» 
 and in case the same is not delivered to him within 24 
 hours after such demand, he may, and shall if necessary, 
 break open such house, building or enclosure for the pur- 
 pose of replevying such property or any part thereof, and 
 shall make replevin according to the order. li. S. 0. 1877, 
 c. 53, s. 15. 
 
 Wlifii till' property is in the possession of anv tiiinl person not lioldinj,' it for 
 tiie (Iffciidant niinieil in the order of replevin, tile slieriff uiiniiot justify ii 
 seizure of it under the order of replevin: see Slofner v. Spvinijei; 7 Ont. Ap)". 
 4!)7, ami other cases in note U> Rule 1103. 
 
 IIOS. If the property to be replevied, or any partw^on- 
 thereof, is concealed either about the person or on the about the 
 premises of the defendant, or of any other person holding j;"?,\"i"e's'. 
 the same for hira, and in case the Sheriff demands from 
 the defendant or such other person deliver.ince thereof, 
 and deliverance is neglected or refused, he may, and if 
 necessary shall, search and examine the person and 
 premises of the defendant or other person for the purpose 
 of replevying the property or any part thereof, and shall 
 make replevin according to the order. R. S. 0. 1877, 
 c. 53, s, 1(). 
 
 See note to Hide 1107. 
 
 When 
 ordor to be 
 roturncrt 
 with Sche- 
 dule an- 
 nexed. 
 
 What Sche- 
 dule to con- 
 tain. 
 
 IIOJK The Sheriff shall return the order on or before 
 the tenth day after the service thereof, and shall transmit 
 annexed thereto : 
 
 (1) The names of the sureties in, and the date of the 
 bond taken from the plaintiff, and the name or names of 
 
 the witnesses thereto ; 
 
 (2) The place of residence and additions of the sureties ; 
 
 (3) The number, quantity, and quality of the articles of 
 property replevied ; and in case he has replevied only a 
 portion of the property mentioned in the order, and cannot 
 replevy the residue by reason of the same having been 
 eloigned out of his county by the defendant, or not being 
 in the possession of the defendant, or of any other person 
 for him, he shall state in his return the articles which he 
 cannot replevy and the reason why not. R. S. 0. 1877, 
 c. 53, s. 17. 
 
 1110. If the Sheriff makes such a return of the pro- if sheriff 
 perty distrained, taken or detained, having been eloigned, tha"tife 
 
 
860 
 
 Roles 
 1111-1112. 
 
 {jroimrty 
 laH been 
 eloi);uecl, 
 order to 
 isBue. 
 
 / 
 
 Damages 
 on ju(l(i- 
 nieiit by 
 default. 
 
 Mandaimis 
 ill action. 
 
 " l^ f a .- '■-1 
 
 tt^lt 
 
 EXTRAORDINARY REMEDIES. 
 
 as would have warranted the issuing of a cainas in wither- 
 nam by the law of England on the 5th day of December, 
 1859, then upon the filing of such return, an order shall be 
 issued on jtrccipe in the words or to the effect of Form No, 
 154 in the Appendix, which shall have the same force and 
 effect as a capias in withernam had, and before executing 
 such order the Sheriff' shall take securitv as provided by 
 Rule 1103. R S. 0. 1877, c. 53, s. 18. .^ 
 
 1111. In case the plaintiff becomes entitled to sign 
 judgment by default, he shall be at liberty to sign final 
 judgment for the sum of five dollars, and costs according 
 to the proper scale, but shall not be entitled to recover a 
 larger sum except upon an assessment before a Judge or 
 jury, or upon filing the written consent of the defendant or 
 his solicitor, and an affidavit verifying the signature to 
 such consent. R. S. 0. 1877, c. 53, s. 28. 
 
 A.s to tlu' diuiiagi'i* recoverable by a plaintiff in replevin at a triiil or on an 
 as.se.ssnient of damages see (imhmn v. O CaHaijhan, lA Out. Ap)i. 477. 
 
 3. Mandami's. 
 
 (i) In Actions. 
 
 1113. The plaintiff in any action in the High Court of 
 Justice, except replevin or ejectment, may indorse upon the 
 writ and copy to be served, a notice that the plaintiff 
 intends to claim a mandamus ; and the plaintiff may there- 
 upon claim in the statement of claim, either together witb 
 any other demand which raay be enforced in the action, or 
 separately, a mandamns commanding the defendant to 
 fulfil any duty in the fulfilment of which the plaintiff is 
 personally interested. R. S. 0. 1877, c. 52, s. 4. 
 
 The inandaniu.s here referred to is not the prerogative writ wiiicli iiiayl* 
 granted where a party has no other remedy : see notes to see. :">;} (,S| fHjirii pp. 
 53-4; hut the power to grant it was originally a new |H)wer ediifcmd mi 
 Common Law Courts (analogous' to the jiowers of acting directly //' /ifrsi'iuiui 
 ])Ossessi'(i by the Court of Chancery) "to direct the iierforniaiiceof sdiiie act.of 
 something to be done, w'hicii is the result of an action where an nctimi will lie. 
 per Brett, L..T., in iHimndji v. Heston I.nail Bmiiil, 12Cii. ]). 12'2. 
 
 It was thus in tlie nature of an execution, api)licabl<> in cises wlicre lelii'f tna 
 l)laintitf, who was damaged by tlie noii-fulHlnu-nt of a ihity liy (lifciidaiit, 
 would be best given bj' enforcing the specific iierforinance of that duty. 
 
 The original Kng. Act from which tin* K. S. O. 1H77, c. oL'. reliitiiifr to 
 Prohiiiition, Mandamus and Injunction, was taken was intended to cany uiit in 
 some measure the recommendations of the Common Law Conmiissii)uirs(if]ffl4. 
 The view of the Commissioners had been what the Jud. Act lias acciiiiiiili.-iiii'il. 
 viz., that resort should not be had to the auxiliary jurisdiction of lv|uity, l)iit 
 that eacli Court should po.s8e,ss within itself the power tf) give complete redrws. 
 
MANDAMUS — IN ACTIONS. 
 
 861 
 
 Tlicv accordiiinrlv rp)i<>rt('(l that tlu-n^ uhn iki rfUHdii " why a ('uiirt of Law Rule 1112. 
 
 slioiild not cxfrciHi' th«' Haiuo jurisdictinii as a ( 'mirt of Kciuity and ri'.straiii the Manda- 
 violatiim (if li'Kal rightH in cantw in which an injunction tnigiit iKsiic for that miiH. 
 l)Ui|)i)sc fnini (Joiirt.s of ^^(luity " ; Sfcon<l Jluport, m, 48. 
 
 TJH'olijrL't iirovich'd for l)y this Riili in that of enforcing the N|Hcitic pcrfoini- 
 iiiicc of wrtani dutit's. in tiic fidtihncnt of which a i>hiintitif iH ptTHonally 
 iiitorested. 
 
 Thi-riinrtsofConnnon Law formerly did not oxerciHe the statutory jnriMdiction 
 (fivcn tiiciii, unless in cases wiiere a l)ill for specific performance would lie in 
 K(|iiity,liut tile converse divi not hold good, vi/: that wherever (Courts of Kquity 
 wiJiild entertain a hill for spi'citic relief, the Court of Ijaw woidd grant a man- 
 (laniiiH ; see Ki'ij. v. Jinl/ii/ ,{■ Wiu/isa/i, tic, 22 Tj. .1. <i. J5. I(i4 ; /•Jt/miri/s v. 
 ImwiiiIi", I K. it B. 81. I'nder tile system introduced l>y tiie .ludicat\n'e Act 
 itWDiild seem to l)e proper to hold, under tliis Itiilr and section ."iH (8) that, in 
 ull ciises ill which the appropriate relief is to compel the |)erformance liy the 
 ilcfendiuit of tliat which tiie plaintiff is in the action held entitled to have 
 |K'i'f(iriiie(l, performance should lie compelled by the issue of a mandamus. It 
 lias iKit, JKiwever, lieeii as yet decided that a mandmus is the aporopriate 
 rt'iiiedv liir tiie performance of matters arising out of contract ; see, liowever, 
 Huh- illiS. Ill III' Limdiiii llin-iiii .(• liiurc Rii. <'i>. v. A'. Wdirinins/i, ;<(! V. ('. 
 t| JJ. !i;t, it was held that a prerogative writ of mandamus was not the appro- 
 priate remedy in such case ; see also Jif .V. ,Siiiiriii' Jt.i/. Co. v. Tuniiitn. Ih. 101. 
 
 It has heen said that the only (dassof cases, to wdiich the Hection from wdiicli 
 this RhU was taken was formerly held to ajiply, without doubt, was that in 
 wiiich tiiere was a duty of a public nature, or a duty created by an .\ct of 
 IVliaiiieiit, in the fulfilment of which the ])laiiitiff had a personal interest: 
 Harrisnii, V. L. I'. Act. 4(11. 
 
 Tiidcr tlie eorresiKinding Knglish enactment it was decided that the jiower 
 g^ven is only to be exercised to enforce performance of duties of apublj(! nature, 
 not those arising sini|>ly by contract ; Ikiinim v. I'd nil, (i l"L & 15. i'i'A; .Xni-n'.iy. 
 Irish l.nnil Cn., S E. & H. i)Vl\ and that the duty must i)e one in which the 
 aiiplicant is interested ; and the remedy by mandamus is only available where 
 tliciv is no otiier etfecttial legal remedy: liush v. /li'iirmi, 1 11. & (J. add. See 
 liowever notes to sec. 53 (8) of the tlud. Act. 
 
 Sention TiS (8) of the Act goes further, however, than the jirevious statutes, 
 and enacts that a mandamus may be granted "by an interloc'it )ry order of the 
 Court in nil eases in wdiich it shall aj>pear to the Court to be jiis*^ or convenient 
 that such order should be made.'' 
 
 Under that section, or this Ituli; the remedy may be held to extend to cases of 
 a mure jirivate nature than those to wdiich the jirerogative writ wouhl ajiply : 
 sec .\nn-i.f V. Tlif /ri.s/i Z/nid Cii., 8 K. & B. 527, /"''■ Coleridge, •)., and >'"■'/<( v. 
 X'-rth liiilhli Ai'.stnilasiaii C»., J H. & N. WS; 2 II. & C. 175 ; W»,-tlii,(;ilu,i v. 
 IlitUim^l,. H. 1 Q. H. (i;^ ; and in actions even though no actual damage Ih; 
 sustained: Futhcrhii v. Mi'tnipilildii M;/. ('<-., L. R. 2 C. 1*. 18'.. 
 
 A mandamus was granti'd to improvement commissioners, ilirecting them to 
 k'\j a late to satisfy the claim of the plaintiff, a creditor: Ward v. I.inruili's, 
 1 K. & K. !l4d, !),5(); and to ap|)ly their funds in ])ayment of debentures : W'clili 
 V. diimmi.i.iiiiiirr.i of J/enir />((//, L. H. 5*^. B. (!42 ; to a railway company, coin- 
 IH'lling tlieiii to give a notice to treat and proceed with the purchase of lands as 
 to wliici) they had given notice of an intention to take : Mm-i/dii v. McliiqMlildii 
 Rililirtn, („.. L. K. 3 C. p. 553, 4 C. P. 07 ; nrnioi-cut v. Miilldild Hi/. Co., Id 
 p. R. 73; see also 7V.'""' v. Miii/nr i>f Limdini, L. R. 7 C. P. 18 ; and to issue a 
 precept for the assessment of compensation after a notice to treat had iK'cn 
 ffiveu; Fulld'rliii v. M,-I);,j,„litdi) Mdihrdi/ Co., L. R. 2 C. P. 188; (.'iwsl v. I'dole 
 ml IhHinii'iiiuiith Rij. Co., L. R. 5 C. P. 5.53; to a municipal corporation to 
 cmniiel the making of repairs to a drain whicli it was their duty to rejiair and 
 the non-repair of which had caused damage to the plaintiff : W'hilr v. Corpont- 
 lim of (l,isfirld, 2 Ont. 287 ; and see Re Mmdloii, etc. v. IMdImand, 12 Ont. 
 •Vpp. {)03 ; and to comjiel the o|)ening of a road allowance as to enable an 
 wcujiaiit of land to have access thereto : Hishqi v. Mc'iillii'rdij, 12 Out. 74!) ; 
 
 ^ 
 -5^ 
 
 ^ 
 
p 
 
 862 
 
 EX'vnAOUDINAllY IIKMEDIES. 
 
 Rules 
 11131117. 
 
 
 IndorBP 
 meat of 
 writ. 
 
 Kcc alnr) /.'(■ Wih",! V. V'liiiijh'-t, 10 P, |{. 117; Cliirkr v. /'iiliiifr.t/un, C Onf. 
 (ill). Sc(< iiM to tlic di ^rction of the t'oiirt, .Vic/iiil/ v. Allfii, 1 K. ,\; S.Uli; 
 !tU4 ; and to c<)1ii|hi1 tlit .'i to rtunr tlic inoiify to juiy the uluiiii ot tlic iiliiiiititf mi 
 li ci'cclitor of tilt' (.'orponiiMm ; (juiiintdiirc v. //' ii-tinl, 'l^i C T/. .1. i")!"). 
 
 In ciiscM of piililio iiuiHiiiici', tlip piililit' Ims iiii interest ii> the ri'iiiipviil (if the 
 niiiHaiuM', hut uiiy i>rivatr iiidividiml \n lio Hiifft'i's piirticidiir injury miiy Imvp 
 )ii« action for dainaK'ff. : we lircu-n v. Mull' II, 5 ('. U. T)!!!! ; /inliKun w'lllnd: 
 9/i();r, !» (^. H. !l!tl. <iuury, wlintlicr in hucIi case, uikUt tlii' prcsfiit MVstfiii, 
 Buoh private individual cun have a iiuindaiuuH for tlie removal of tlic nuiwticv.' 
 
 liliJ. The plain till" shall indorse the claim to such 
 mandnmus upon the writ of summons, and the indors( 
 ment may be in the form p;iven in No. H in the Appendix. 
 New, See Eng. Eules 719, 720. 
 
 ^ 
 
 % 
 
 ut 
 
 
 judRinent. 1114. If judgment be given for the plaintiff, tho Court 
 or Judge may by the judgment command the defendant, 
 either forthwith or on the expiration of such time and upon 
 such terms as may appear to the Court or Judge to be just, 
 to perform the duty in question. The Court or Judge may 
 also extend the time for the performance of the duty. A'«r. 
 See Eng. Rule 721. 
 
 Writ 
 aboUsbecl. 
 
 1115. No writ of mandamus shall hereafter be issued 
 in an action, but a mandamus shall be by judgment or 
 order, which shall have the same effect as a writ of man- 
 damus formerly had. New. See Eng. Rule ^^'A'^. 
 
 This jirovision is similar to that contained in Rule 1130, providing that no 
 writ of injunction shall issue. 
 
 It is to he observed that the Rule ajiplies only to a mandamus in ini ortinii. 
 There is no express provision makinj; any alteration in the form of the prenijj- 
 ative writ of mandamus. The intention probably is however that tiiat writ 
 Hliall now be granted as an order and not as a writ. See note to A'i'/c 1117, also 
 lii'lc 3. 
 
 hfests^in ■ll^J. The pleadings and other proceedings shall be 
 orr'^iary the Same in all respects, as nearly as may be, and costs 
 shall be recoverable by either party, as in an ordinary 
 action. See R. S. 0. 1877, c. 52, s. 6, ,/irst part 
 
 at ion. 
 
 (ii) On Motion. 
 
 uinnot'to ill'7. Nothing iu the five preceding Rules contained 
 be aiiectea. shall take away the jurisdiction of the High Court of 
 Justice to grant orders of mandamus ; nor shall any order 
 of mandamus issued be invalid by reason of the right of the 
 prosecutor to proceed by action for mandamus but the pre- 
 ceding Rules, so far as they are aj)plicable, shall apply to 
 
MANDAMUS — ON MOTION. 
 
 803 
 
 tile pleadings and proceedings upon a prerogative order of^^i^m^. 
 iminddiiiuH issued by the Court. It. S. O. 1877, e. 52, s. 10, 
 
 The Hi'ctioii whicli was tlif original of tliis Iltil, whh taken from tiic linp. 
 Act, 17 & 1« Vict. c. 125, ». ''>. 
 
 Tlif nl)j('ot of tlid Statiitf from wiiicli tluH Jtiilf is taken wan to dfitlare that 
 till' liKlit to obtain tiic iiri'i'oi^ativc writ of mandaniiiH wan not inti rfcrcd witli. 
 It wniild tlici'cforc Mt'cm to lie not intfrfcrfd with liy the /tidin except pcrhaiiH 
 tlmt ill form it is to he an order, not a writ. .As to tliis writ, see .iii/uii p. iui. 
 
 Ill tills and the following /tiili's, wiiere the Statute referred to the preroi^- 
 ativc writ, tlie expression hus lieen altered to "order" of miiiidanms. .As 
 |)(iiiit«il out aliove, liii/i 1 1 1."), pro\ idinff foi' ;iii order instead of a writ of mand- 
 aimis ill all action, doi i not see.ii to extern! lo the old prerogative writ, whieli 
 WHS not olitaiiied hy actioii ; lint in view o' Hit/c .'}, in aildition to the cliaiiKe of 
 laiiKiiaKe in this and the foUowini,' ltiil<:<, it may he that the prerogative 
 inaiulaiiius, as well as the niandumns granted in an action, is now to issue as an 
 i.nici', and not as a writ. , 
 
 WlH. Whereas the provisions contained in a certain i'>"viHions 
 
 ,,,,. i-i 1 i-n • (It Act ol !) 
 
 Act of rarharaent i)assed in the ninth year of the reign of Anne, c. 20, 
 Queen Anne, entitled "ylu Ad fur renderiwj f he juvcccd- 'liUotin^ 
 iiKjn upon WritH of Mandamm und information in the "«<'""^' ",„,',*)„',[,„«. 
 of a Quo Warranto more speedy and effectual, and for the 
 more easi/ tryimj and determinin(i the riyhts of Offiven and 
 FnnichiseH in Corporations and Boronyhs," relating to the 
 writs of mandamus therein mentioned, have been found 
 useful and convenient, and the same ought to be extended 
 to the proceedings on other such writs ; it is therefore 
 ordered that the several enactments contained in the said 
 statute relating to the return of writs of mandamus, and 
 the proceedings on such returns, and to the recovery of 
 damages and costs, shall extend and be applicable to all 
 orders of mandamus, and the proceedings thereon, except 
 so far only as the same are varied and altered by these 
 link's. E.'S. 0. 1877, c. 52, s. 11. 
 
 The section which is the original of this Ri'/i' was takfn from the Imp. Act, 
 1 William 4, c. 21. 
 
 The i)n)ceedings here provided for. relate to orders of mandamus nisi. 
 
 Prior to the Statute it Anne, c. 20, 
 
 (1) A rule to H'turn the writ was not usually grunted until an alias and Former 
 liluries writ had first been issued; practice. 
 
 (2) If the defendant returned, in answer to the writ, a legally sufficient cause, 
 tliiiu^'h false in fact, the Coiu-t woiild not try the trutli of the return u|ion 
 attiilavits; the jirosecutor was therefore ])ut to the bringing an action on the 
 p:is(' for a fidse return, and by this extraneous proceeding might recover 
 (ianiages : Tapjiing on Mandamii.i, 0. 
 
 It was to remedy these defects in the effectual use of the writ that the Statute 
 ot Aiuie was passed. It related only to certain kinds of mandamus to admit to 
 I'ifices, Imt by the Imp. Act, 1 William 4, c. 21, (upon which the ])resent linlc is 
 fimnded) was made applicable in point of procedure to all writs of mandamus. 
 The Act provides for th( following matters :— 
 
 :i^E>. 
 
 
 ^ 
 
 I 
 
864 
 
 EXTRAORDINARY REMEDIES. 
 
 Rule 1118. 
 
 Practice 
 under 9 
 Anne, c. 20, 
 and this 
 Rule. 
 
 
 ':^ 
 
 Ketuvn to 
 order of 
 niandamiiH 
 
 (1) That th*- iwrsons who are required to make f return to a writ cf man- 
 (lamUN shall make their return to the first writ ; 
 
 (2) That when a return is made the jierson.s prosecuting the writ iimv plead 
 to or traverse all or any (jf the material facts contained within \.\w retuni, t.i 
 which the jierson making' the return may rej)ly, take issue or (Iciiiiir, aiid 
 further proceedings may be had, as if an action on the case for a false rfturii 
 hatl been brought; so that the damages for the injury sustained might Ic 
 recovered in the mandamus proceedings ; 
 
 (3) That in case of judgment for the (XTsons j)rosecutm^ the writ, they «hall 
 recover their damages and cir ts as tiiey might have done in such action; 
 
 (4) That a peremptory writ shall be granted to the ])erson for wIkuu judg- 
 ment is given, as m'gnt iiave been done if the return had l)een iuljudged 
 insufficient; 
 
 (5) That in case of judgment for the person making the return, he shall 
 recover his costs : !) Aiine, c. 20, s. 2 ; 
 
 (0) The time to make a return, to plead, reply, rejoin, or demur, shall Ije as 
 the Court may tliink just and reasonable. 
 
 The Statute of Anne mider the i)resent Ride, therefore, regulates (1) the 
 return to orders of mandanuis, (2) the proceedings on such returns, and (3) the 
 recovery of damages and costs. 
 
 In the case of orders of mandannis awarded in an action, tliesc will \» 
 generally perem|)tory orders of mandanuis, and the rpiestion of the right of the 
 applicant to the order will probably have been determined in the action, as also 
 his right to damages, so that most of the proceedings regulated l)y the Statute 
 of Aime will generally beajiplied only in cases of returns to the prerogative 
 order of mandanuis which generally issues as a mandamus nhi, unless tlie Court 
 under Rule 1125 makes it absolute in the first instance : see He linurd nf Kduat- 
 linn (if X((/iiiiire <i Art//rt»('c, 2!t 'Jr. 3!>i"), 3!I8. 
 
 The Return. - As above mentioned, this is to l)e made on or l)efore the return 
 day of the first writ; on default, and on affidavit of service of the writ, a 
 |)eremi)tory mandamus will be granted, and after tiiat an attachiiieiit ; Maiiar 
 lit Coirntrii'.i Cnxf, 2 Salk. 41!t. On application the CiUirt may extend the time; 
 Tapp. 344. If the a|)plicant is unpre])ared with an affidavit of service, he might 
 obtain a /mnipt' ordi-r to make a return : Jl>. 
 
 Tiie writ must ))e returned as executed, or its execution must Im; legally 
 excused or justified : Ta))p. 34<i. If the defendant has not liad sufficient time, 
 such fact may lie returned by stating that " from time to time divers matters 
 and things iiave been executed for the purpose of comidying with the writ, 
 and that further matters and tilings are in the course of procedure " ; Tapp. 340. 
 
 Returns are of three kinds ; (1) Traverses ; (2) Sixicial returns ; (3) A state- 
 ment ill the nature of a demurrer. 
 
 (1) TmriTscs, — The general rules of jileading were formerly held applicahle, 
 by wiiicii it was a rule that every distinct and material allegation must, if it be 
 intended to ';niitradict it, 1k^ traversed : Tapp. 348. l'r>bai)ly tiiis will not be 
 HO now, but the existing rules of pleading in an action will be applijalile. 
 
 (2) Special returns by way of confession and avoidance. Where tlie defend- 
 ant seeks either to excuse or justify tile non-execution of the writ, lie iinist, by 
 his return, in direct terms stiite tlie grounds of his excnise or justification, and 
 under jiaiu of attachment make the best return liis case admits of. 'I'iie whole 
 legal facts of his case must be .set out iti <:rt< iiko, in order both to eiialile the 
 Court to judge of the law and of the legality of the excuse, and as to whether 
 the command has been coiii|died with, and also to apprise the jn'oscciitor of the 
 grounds of defence, to enable him to answer them. The return will, therefore, 
 not be sufficient if made in gt-neral terms. 
 
 Every good leg.al cause, why the ])rosecutor is n(jt entitled to the wr.t, 
 whether it arises from his personal incapacity tfi sue it out, or by reason of the 
 absence of a legal right to what he seeks, will fonn a gwid and valid retuni : 
 Tajip. SrtS. A return which shows a legal imixissibility to ix-rfonn what the 
 writ commands is g(K)d ; see Re lirixfn! li- Smiierset Ri/., 3 Q. n. D- 10; hut the 
 
MANDAMUS. 
 
 865 
 
 rn to ii writ ci man- 
 
 the writ may jilead 
 ivithin tilt' rcttini, to 
 issue (ir (Iciniir, and 
 xse for a false return 
 
 sustained might be 
 
 ■r the writ, they shall 
 in such action ; 
 
 rson for whom jiulg- 
 had been adjudged 
 
 the return, he shall 
 
 ir demur, shall V as 
 
 ore, regulates (1) the 
 ih returns, and (3) the 
 
 action, these will lie 
 tion of the rjght of the 
 d in the action, as also 
 fulated by the Statute 
 rns to the prerogative 
 » nisi, unless the Court 
 lee I{e linonl i[f Edmi- 
 
 m or before the return 
 service of the writ, a 
 m attachment : Matinr 
 t may extend the time; 
 ,vito'f service, he might 
 
 cution must he legally 
 not had sufficient time, 
 to time divers matter* 
 njilying with the writ, 
 procedure ":Taiiii.34(i. 
 
 il returns ; (3) A state- 
 
 rmerly held apiilicaWe, 
 allegation must, if itl)e 
 robablv this will not be 
 vill be'appli-'able. 
 
 ce. Where the defend- 
 iif the writ, he must, bv 
 use or justitiwition, and 
 . admits of. The whole 
 rder both to emvlile the 
 :cuse, and as to whether 
 ise the prosecutor of the 
 lie return will, therefore, 
 
 ot entitled to the writ, 
 , out, or by reason of ttie 
 1 good aud valid return: 
 litv to ijerfonn what the 
 ., 3Q. B. D-l";^"'''*'' 
 
 fact that the defendant had, after notice of the plaintiff's claim, by his own act Rule 1119. 
 put it out of his power to comply with the order is not a legal impossibility : . . 
 see BegiM v. Bernardo, 23 Q. B. D. 805. 
 
 A return will be bad if it shows the Isj^al liability of the defendant, or does 
 not sufficiently answer the command ; thus, to a mandamus to ascertain 
 whether a discretion may or may not have been honestly exercised, it is not 
 sufficient to return that "what ha' been deemed necessary has been done": 
 Tttpp. 358. 
 
 (3) A return in the nature of a demurrer to the xvrit. — The defendant cannot 
 demur to the writ, but he may s.bmit that he is not bound by law to execute 
 it, which submission, being in the nature of a demurrer, will be treated accord- 
 ingly : Tapp. 3(52. 
 
 Proceedings on return.— The return must, together with the writ, be filed 
 in the proper office, and then becomes a return : Tapp. 365. 
 
 Amendment of the return to correct clerical mistakes may l>e allowed. 
 
 iJu/e 1122 provides that the mode of objecting to the validity of a return 
 shall be by demurrer, but a motion to quash a defective return might formerly 
 be made when the return was vicious? by reason of any clear and well acknow- 
 ledged defect, such as that upon its face it was palpably framed only for the 
 purpose of delay : Rex v. Oundle 1 A. & E. 297 ; Tapp. 372. 
 
 It has also been laid down that a return which is evasive, contemptuous, 
 frivolous, nonsensical, hypothetical, or uncertain may be quashed on motion : 
 Tapp. 350 ned (/nrvrc ; in Kc B(ard of Ediccatimi of Napanee A XajMnee, before 
 Boyd, C, 14th Dec, 1881, it was held that a return could only be quashed by 
 traverse or demurrer, and a motion to quash a return was dismissed as miscon- 
 ceived. See Hide 1222. 
 
 As to what constitutes uncertainty : see Tapp. 354, 355. 
 
 1119* Whereas writs of mandamus, other than such as 
 relate to the offices and tranchises mentioned in or provided 
 for by the said Act passed in the ninth year of the reign of 
 Queen Anne, are sometimes issued to officers and other 
 persons, commanding them to admit to offices, or to do or 
 perform other matters in respect whereof the persons to 
 whom such writs are directed claim no right or interest, or 
 whose functions are merely ministerial in relation to such 
 offices or matters ; and it may be proper that such officers 
 and persons should in certain cases be protected against 
 the payment of damages or costs to which they may other- 
 wise become liable : it is therefore ordered, that it shall be 
 lawful for the Court to which application is made for any 
 order of mandamus (other than such as relate to the said; 
 offices and franchises mentioned in or provided for by the' 
 said Act passed in the reign of Queen Anne), if such Court 
 sees tit to so do, to hear motions calling not only upon the 
 persons to whom such order is required to issue, but also 
 all and every other person having or claiming any right or 
 interest in or to the matter of such order, to show cause 
 against the issuing of such order and payment of costs of 
 the application ; and upon the appearance of such other 
 JA, 55 
 
 Court may 
 make or- 
 ders call- 
 ing on all 
 persons 
 having in- 
 terest in 
 the matter 
 of the writ 
 to show 
 cause 
 against 
 issuing, 
 etc. 
 
 
"'."(• w 
 
 
 ^1 
 
 866 EXTRAORDINARY REMEDIES. 
 
 fm\i2]. P^'^^on on such motion, or in default of appearance after 
 notice given, to exercise all such powers and authorities, 
 and to make all such orders applicable to the case a8 are 
 or may be given or mentioned by or in any Act lor giving 
 relief against adverse claims upon persons having no 
 interest in the subject of such claims. E. S. 0. 1877, c. 52 
 s. 12. 
 
 This and the two next following Riile.i relate to the same subject and provide 
 that in the case of a mandamus issued to officers or persons whose functions are 
 merely ministerial, the jiersons having or claiming riglit or interest in the 
 matter, may be called ui>on to show cause, and may be made liable to costs ; see 
 Dcmorest v. Midlawl Ri,. Co., 10 P. R. 73. 
 
 S(!e lie Mns.^ei/ Mftj. C<>., 11 Ont. 44; 12 Ont. App. 44G (see now R. S, 
 0. 157, s. 1!)). 
 
 Peremptory Mandamus. — The Court ha.s jurisdiction to award a i)eremptor}' 
 mandamus in the first instance instead of a mandanuis nisi: Rviv 112.'). 
 
 No return except obedience is admissible to the peremptory writ : Tapp. 
 408. 
 
 Enforcement of Mandamus. — Attachment is the proper remedy for disobey- 
 ing a jwremptory mandamiis : Demorent v. Midland Rij. Co., 10 P. R. 82. 
 
 See also Rule 1128 enabling the Coiu't to direct the j)erformance of the act to 
 be done by the jJarty obtaining the order at the expense of the party whose 
 duty it is to do the act. 
 
 1130. The return to be made to any such order, and 
 issues joined in fact or lav; upon any traverse thereof, or upon 
 any demurrer shall be made and joined by and in the name 
 of the person to whom such order is directed ; but never- 
 theless the same shall, if the Court thinks fit so to direct, 
 be expressed to be made and joined on the behalf of such 
 other person as may be mentioned in such rules, and in that 
 case such other person shall be permitted to frame tlie return, 
 and to conduct the subsequent proceedings at his own ex- 
 pense ; and in such case, if any judgment is given for or 
 against the party suing such order, such judgment shall he 
 given against or for the person on whose behalf the return is 
 expressed to be made, and such person shall have the like 
 remedy for the recovery of costs and enforcing the judg- 
 ment as the person to whom the order was directed might 
 and would otherwise have had. R. S. 0. 1877, c. 52, s. 13. 
 
 Case of 1121. In case the return to any such order is, in 
 
 signat'ion pursuauce of the authority given as aforesaid, expressea 
 of MwoTs' to be made on behalf of any other person as aforesaid, the 
 Mturnfpro" further proceedings on such order shall not abate or be 
 Tided for. discoutinued by the death or resignation of, or removal 
 from office of the person having made such return, but the 
 same shall and may be continued and carried on in the 
 
 Form of re- 
 turn of 
 issues 
 joined, on 
 demurrer, 
 .etc. 
 
 For or 
 
 against 
 
 whom 
 
 judgment 
 
 shall be 
 
 given. 
 
 Costs. 
 
MANDiMUSi 
 
 867 
 
 )pearance after 
 nd authorities, 
 the case as are 
 ' Act for giving 
 ons having no 
 . 0. 1877, c. 52, 
 
 i subject and provide 
 s whose functions aif 
 it or interest in the 
 ie liable to costs : see 
 
 S (see now R. S. 0. 
 
 I award a i)eremptorv 
 si'; iJi'/f 11-25. 
 
 mptory writ : Tapp. 
 
 r remedy for disobey- 
 7o.,10P.R. 82. 
 
 'ormanee of the act to 
 e of the party whose 
 
 such order, and 
 i thereof, or upon 
 
 and in the name 
 !ted ; but never- 
 s fit so to direct, 
 le behalf of such 
 rules, and in that 
 frame the return, 
 T8 at his own ex- 
 't is given for or 
 udgment shall he 
 Bhalf the return is 
 aall have the like 
 forcing the judg- 
 es directed might 
 
 1877, c. 52, 8. 13. 
 
 luch order is, in 
 jresaid, expressed 
 I as aforesaid, the 
 1 not abate or be 
 on of, or removal 
 ch return, but the 
 carried on in the 
 
 name of such person; and if a peremptory order is Riuee 
 awarded, the same shall and may be directed to any"^*-"*'- 
 successor in office or right of such person.. R. S. 0. 1877, 
 c. 52, s. 14. 
 
 112S* In all cases in which the person prosecuting any Formofob- 
 order oimandamua wishes or intends to object to the validity return, 
 of any return to the same, he shall do so by way of demur- 
 rer to the same, in such and the like manner as is now 
 practised in the High Court of Justice in ordinary actions ; 
 and thereupon the said order and return and the said demurrer, 
 demurrer shall be entered upon record in the said Court, 
 and the like further proceedings shall be thereupon had and 
 taken as upon a demurrer to pleadings in ordinary actions 
 in the said Court. 
 
 As to proceedings upon a demurrer in ordinary actions, see Rules 384-391. 
 
 Proceed- 
 ings there- 
 on. 
 
 Judgment. 
 
 Peremp- 
 tory man- 
 damus if 
 the order 
 be good 
 and the re- 
 turn bad. 
 Costs. 
 
 (a) The said Court shall thereupon adjudge either that 
 the return is valid in law, or that it is not valid in law, or 
 that the order of mandamus is not valid in law ; and if they 
 adjudge that the order is valid in law, but that the return 
 thereto is not valid in law, then the Court shall also by the 
 judgment award that a peremptory order of mandamus 
 shall issue in that behalf, and thereupon such peremptory 
 order of mandamus may be issued accordingly, at any time 
 after four days from the signing of the judgment ; and it 
 shall be lawful for the said Court, and it is hereby required, 
 in and by its said judgment, to award costs to be paid to 
 the party in whose favour it thereby decides, by the other 
 party or parties. R. S. 0. 1877, c. 52, s. 15. 
 
 Taken from Imp. Act, 6 & 7 Vict. c. G7, s. 1. 
 
 TheStattito of Anne permitted the prosecutor merely to plead to or traverse 
 a return, hut allowed the defendant to reply, take issue, or demur. This 
 distinction gave rise to a practice in the case of an inauflicient return, of allow- 
 ing th'> prosecution to make application to the Court in the nature of a 
 demurrer, and called a concilium, to quash it, u^wn which, if successful, a 
 peremptory mandamus was at once awarded. Instead of the concilium, a 
 demurrer has by this liul^. l>een substituted, the proceedings upon it are to be 
 the same as in an ordinary action. 
 
 The Imp. Act and R. S. 0. 1887, c. 52, s. 28, provided that costs should be 
 m the discretion of the Court ; this provision is now unnecessary in view of 
 
 Ruu mo. ■ 
 
 1123. Upon application by motion for any order ofo'der^^y^ 
 mandamus the order may in all cases be made in the first arst in- 
 instance, if the Court thinks fit; and the order Bhall"*""^- 
 be dated on the day of its being made, and may be made 
 
^^ 
 
 868 
 
 EXTRAORDINARY REMEDIES. 
 
 tm'iig ff returnable forthwith, but time may be allowed to return it 
 ' 'by the Court or a Judge either with or without terms 
 R. S. 0. 1877, c. 52, s. 16. 
 
 (iii) Applications in Chambers. 
 
 fssSlTder 1184. In all cases in which the High Court of Justice 
 of peremp- has jurisdiction to issue an order of peremptory viamlamm, 
 df!mZ?^' application for the said order may be made upon "ffidavit 
 to a Judge, upon notice of motion in the ordinary manner, 
 to any person who may, in his judgment, be affected by the 
 order, if made, to show cause why the same should not be 
 made. R. S. 0. 1877, c. 52, s. 17. 
 
 The prerogative writ was formerly obtained at a .sitting of the Court in Temi 
 and was not usually peremptory in the first instance, but in an alternative fdnn, 
 coimnanding the {)erson to whom it was directed to do the aot specified or shew 
 cause to the contrary, which was done by a return. 
 
 The enactment from which this Hiile is taken was i)aHsed to enable miiilicatidns 
 for the prerogative writ of mandtinuis to be madt- in Chambers at luiy time 
 insteatl of only during the sittings of the Court in Tenn, and to emiMiwcr the 
 Court to grant a writ to which obedience was the only return. Tlie |)reamlile 
 to the original Act, 35 Vict. c. 14. was : "Whereas in many cases very ^Tcit 
 injustice is dcme by the delay in the issue of the i)rerogative writ of inandaniiis ; 
 and whereas, it is necessary to devise a more sjn-edy and smnmary niethdd for 
 the issue of the same. " 
 
 That Act and the present Ride thereftire provide for a stmimary application 
 to a Judge in Chambers for the issue of a i)eremi)tory order in the first 
 instance ; so that all fpiestitms as to the right to the order, and thf^ matters 
 which otherwise would be raised by way of return to a mandamus nixi may be 
 argtied and disposed of at once without .any previous order and return thereto. 
 That is the mode of i)rocedure now generally .adopted. The right, however, to 
 move the Court for a nmndamus ni»i as formerly is pre.served by Riili\Vif,)\ but 
 on any such motion the Court has power under Rule 112.S to nnikea peremptory 
 order. 
 
 The Master in Chambers and officers having like jurisdiction have no power 
 to make orders of mandamus : see ' nifs .30 and 112!t. 
 
 Where a sunnnary application for a niandanuis was made in C(nut the costs 
 of a Chamber motiim (nily were allowed, where the cilc^uu.s^anL'l's did not 
 justify the imjiosition of a larger sum for costs than was sufficient to indicate 
 that the resi)ondents were in the wrong : Ri: Ricukiiv/d uml I'libtic Scln i>l Si:d'M\ 
 1-2, Toininhip of litvoke, 12 P. K. 4X5. 
 
 The prerogative mandamus is not granted where the applicant has another 
 approjmate remedy: .see notes siipru j). .54, and Rui. v. Reiii.ili-m- nfJuiiit .SV"t 
 Co.t., 21 Q. B. I).' 131; R<''/. v. lM,Hb<,iiru Vulht/ Ri/. ('-., 22 t^. B. D. 4(a, 
 lie Whitakd- .(• Mamni, 18 Out. 03. 
 
 Dj-^ty^o' 1125. It shall be the duty of the Judge to whom the 
 application is made, provided he is of opinion that the case 
 is a proper one for the issue of the same to make an order 
 of martdamus absolute in the first instance. R. S. 0. 1877, 
 c. 52, 8. 18. 
 
 See note to fl«/e 1124. 
 
MANDAMUS. 
 
 869 
 
 3d to return it 
 nthout terms. 
 
 )urt of Justice 
 ory mandamus, 
 I upon "ffidavit 
 inary manner, 
 affected by the 
 should not be 
 
 )f the Ccnirt in Term 
 an alttTiiiitivefdnn, 
 act Kiw^cifit'dcirf-hew 
 
 () enable apiilications 
 ambers at iiny time 
 and to emiMiwcr the 
 Dnrn. The (ireainlile 
 my cases very great 
 p writ of niaiidamus; 
 snnmiary inetliodfor 
 
 snniniary application 
 ;-y order in the first 
 tier, and the iniittt-rs 
 undain\is ii/.s/ may be 
 ■r and return thereto, 
 'he right, however, to 
 
 vedl>yie"/''11^1>;l«it 
 to make a pereinptorj- 
 
 liction liave no power 
 
 id(^ in Court the costs 
 
 iicnmstsnces did not 
 
 sufficient to indicate 
 
 / I'tililic Sclitvl .Vcdi" 
 
 ain.licant has another 
 
 {(■,,isti;tri>t'.l"i'it Sink 
 
 (■-'., -22 Q. H. I). 4ti3, 
 
 ge to whom the 
 ion that the case 
 io make an order 
 R.S. 0.1877, 
 
 1126. The notice of motion may be served upon t^^^]^^" 
 person or party named therein, either personally or by service and 
 substitution as may be directed by the Judge, in the samedinjouonof 
 manner as a writ of summons ; and the motion may be 
 prosecuted in Chambers upon affidavit or other evidence 
 in the same manner as other applications in Chambers, and 
 in case an order of mandamus is made, the same may be 
 enforced by process of attachment. New. See R. S. 0. 
 1877, c. 52, 8. 19-23. 
 
 1127* Upon hearing the parties who appear, or their order, 
 oounsel, and after service of the notice upon all proper 
 persons, as hereinbefore provided, the Judge, if in his 
 opinion the case is a proper one, shall make the order and 
 shall thereby direct what is to be done and performed by 
 the person or party to whom the writ is directed ; but if, 
 in his opinion, the application should be refused, the said 
 motion shall be dismissed. R. S. 0. 1877, c. 52, s. 24. 
 
 1128. If a mandamus granted in an action or otherwise, ^^^^*jj°'y 
 or a mandatory order, injunction, or judgment, for specific enforced, 
 performance of any contract be not complied with, the 
 
 Court or a Judge, besides or instead of proceedings against 
 the disobedient party for contempt, may direct that the act 
 required to be done may be done so far as practicable by 
 the party by whom the judgment or order has been 
 obtained, or by some other person appointed by the Court 
 or Judge, at the cost of the disobedient party ; and upon the 
 act being done the expenses incurred may be ascertained in 
 such manner as the Court or Judge may direct and execu- 
 tion may issue for the amount so ascertained and costs. 
 New. See Eng. Rule 608 and R. S. 0. 1877, c. 52, s. 9. 
 
 This Rule is taken from Eng. Rules of 1883, R. 608. It extended to all kinds 
 of mandatory orders and injunctions, a power which previously existed in 
 regard to a mandamus : see R. S. (3. 1877, c. 52, s. <J. 
 
 In an action for specific jierformance. where an order had been made requir- 
 ing defendant to make a certain road, and on his default the plaintiff applied 
 for lil)erty to complete the ro.ad at the cost of defendant, it wab held that the 
 case was not within this Rule, but an order was made permitting plaintiff to 
 do the work with liberty to ajiply that the defendant should pay the expense : 
 Mvrlimer v. Wil.wn,, 33 \V. R. !)27. . 
 
 1129. No part of the jurisdiction by Rules 1112 toMasterin 
 1128, conferred upon a Judge shall be exercised by the and Local 
 Master in Chambers or the Local Judges of the High Court ; to |?2nt"°* 
 and nothing in the preieding Rules contained shall prevent orders of 
 
 iMJill 
 
870 
 
 EXTRAORDINARY REMEDIES. 
 
 fm-1133 *°y person from applying to the Court for a mandamug 
 according to the present practice. R. S. 0. 1877, c. 52, 
 ss. 1 and 26. 
 
 The " present practice " referred to, other than that inentinncd in the 
 preceding Mules was by motion to the C!t)urt for the prerogative writ not neces- 
 sarily a peremptory one in the first instance : see notes to Jiule 1118. 
 
 Writ of in- 
 junction 
 abolished. 
 
 "^ '. , 4. Injunctions. 
 
 1130. No writ of injunction shall be issued in any case. 
 An injunction shall be by a judgment or order, and any 
 such judgment or order shall have the effect which a writ 
 of injunction formerly had. J. A. Rule 401. 
 
 Same in effect a.s the Eng. R., April 1880, R. 32. 
 
 Notice of an injunction may be given by telegram and disoliedicnce of siicli 
 notice punished as a contempt : Ku:. p. Lamjley Re BMiijj, 13 Ch. 1). 110 : see 
 also p. 59, supra. 
 
 5. Interim Preservation of Property, etc. 
 
 Order for 
 
 interim 
 
 preserva- 
 
 1131. Where by any contract a prima facie case of 
 liability is established, and there is alleged as matter of 
 perty! '"^° defence a right to be relieved wholly or partially from such 
 liability, the Court or a Judge may make an order for the 
 preservation or interim custody of the subject-matter of the 
 litigation, or may order that the amount in dispute be 
 brought into Court or otherwise secured. J. A. Rule 396. 
 
 Same as the Eng. R. 1875, O. 52, r. 1, (1883, R. fi57). 
 
 This provision gives increased power to the Court for preserving tlie rights 
 of the parties uninjured, during the pending of litigation, and an inti'rlocutory 
 order made under this Rule may be enforced by attachment : Hutchinstm v. 
 Hartmmd, W. N. 1877, 29. 
 
 In RuJisell v. Davies, W. N. 1883, 10(» ; 19 C. L. J. 273, an action to recover 
 arrears of an annuity, an order made for payment of the annuity till tlie trial, 
 the plaintiff being in destitution, was reversed in apjjeal, as it apiiearcd in the 
 evidence that the defendant had aprinnt/ucie case for insisting tliat the annuity 
 had determined. 
 
 There must be an action or matter j)ending : He I'ari.i S/culimj Rink Co., 
 Limited, A'». ^, 25 W, R. 7(57. Hall, V.-C, there said, " I have jurisdiction to 
 issue a writ of mandamus in every cause or matter before me. In tiiis case, 
 however, while the motion has been standing over, the petition lias been 
 dismissed, and there is no longer any matter pending before me in wliicli I ctn 
 make an order. " 
 
 As to the stage of the action at which an application may be made, see Ri'lf 
 1132. 
 
 Applica- 
 tion when 
 maybe 
 made. 
 
 1132. An application for an order under the preceding 
 Rule may be made by the plaintiff at any time after his 
 right thereto appears from the pleadings, or, if there be no 
 
INTERIM PRESERVATION OP PROPERTY. 
 
 871 
 
 may be inadi>, sf^ . 
 
 pleadings, is made to appear by affidavit or otherwise to f^^* '1134. 
 the satisfaction of the Court or a Judge. J. A. Kule 400. 
 
 Same fts Eng. R. 1875, O. 52, r. 5, (1883, R. 603). 
 
 11S3. It shall be lawful for the Court or a Judge, oi^^^Jf^'bi 
 the application of any party to an action, to make any goods* 
 order for the sale, by any person or persons named in the 
 order, and in such manner and on such terms as to the 
 Court or Judge may seem desirable, of any goods, wares, 
 or merchandise which may be of a perishable hature or 
 likely to injure from keeping, or which for any other just 
 or sufficient reason it may be desirable to have sold at once. 
 J. A. Rulf- 397. 
 
 Same lus the Eng. R. 1875, O. 52, r. 2, (1883 R. G58). The power given is 
 new. 
 
 An order may be mufle for the sale of a chattel which, for a "just and 
 sufficient reason, it may be desirable to have sold at once." Thus in liarlhulo- 
 imw V. Fireniuii, 3 C. P. D. 310, the Court ordered a horse to be sold, on the 
 ground that it was consinning its value in foinl, and there was no reason why it 
 should not Ik- sold. In (.'iiddiiitjtim v. Javkmnnilh: I'. lO M. Ui/. (V*., 3!> L. T. >« . S. 
 12, an order was made for the sale of bonds as jwrishable property within the 
 meaninif of tltis Rulf: (see that case in note to Rule 322). 
 
 A foreign sliip was ordered to be sold on the report of the Marshal that the 
 sale was desirable : The /Ifirufcs, 11 P. D. 10. 
 
 In an iiction for an unpaid balance on the sale of a horse, and for breach 
 of warranty of another horse received in part payment, i)laintiff applied for 
 leave to sell the horse so received in part payment ; it was held by t^nain, J., 
 tliat no order was neoesssary, iind that the Rule was not applicable : Anon, 1 
 Chad. Ch. Ca. 127 ; 00 L. l\ Jour. p. 84. 
 
 Il;{4. An application for an order under section 58, Appiica- 
 sub-section 8, of The Judicature Act, or under the three Ku?e8." 
 preceding Rules, may be made to the Court or a Judge by 
 any party. If the application be by the plaintiff for an 
 order under the said sub-section 8, it may be made either 
 ex parte or on notice, and if for an order under the two 
 f receding Eules, it may be made, after notice to the defen- 
 dant, at any time after the issue of the writ of summons, 
 and if it be by any other party, then on notice to the plaintiff, 
 and at any time after appearance, by the party making the 
 application. J. A. Eule 399. 
 
 Same as the Eng. R. 1875, O. 52, r. 4, (1883, R. 662). 
 
 See notes to section 53 (8), and Rule.fi 1131-1133. 
 
 The original Rule was made ap))licable to the Rules now n»imbered 1131-1133, 
 and 1135, hut by the trans(x)sition of Rule 11.35 in the Consolidation of the 
 flii/ftv it is not now one of the "three preceding Rules" referred to in the present 
 Me 1134 ; similarly. Rule 1131 is not now one of "the two preceding Ridei." 
 If it be c(Hisidered that this Rule does not regulate the making of motions 
 under Rules 1131 and 1135, Rules 532 and 533 will apply. 
 
 
 /3 
 
■■■■I^ 
 
 <WP 
 
 872 
 
 EXTRAORDINARY REMEDIES. 
 
 II 
 
 Rule II861 Thia Rule, it will lie observed, authorizes the making of an oi-der on the 
 , application of the plaintiif, either e.c jmrle or on notice: it whoiikl not be made 
 
 e.v parte except in cases of einer«ency, as when immediate or irreparable damage 
 is being done or api)rehended : see A nun per Lindley, J., \V. N. lH7fi, 12- 
 Meliiish V. Milton, 24 W. R. 679 ; Tozer v. WHlfiml,\y. N. 1875, 2m : Blemii 
 V. Dowliiui, lb., 202 ; Heunessei/ v. Rahman n, 3(> L. T. N. S. 51 ; W. N. IH77, \\ 
 and Taylor v. Kckerdey, 2 Ch. D. 302; Re H's Estate, 1 Ch. D. 27(i ; nyde\'. 
 Warden, 1 Ex. D. 309, cases of receivers. 
 A plaintiff may move at any time after issue of the writ : Re Kceptre V. (Vi,, 
 
 23 Sol. Jour. 230 ; or even before in cases of urgency : Thirrnlne v. Sbilnen, L, R. 
 16 Eq. 126, and notice of motion may Ije served with the writ : Capt's v. Hrewr 
 
 24 W. R. 40 ; and see Rule 533. 
 
 A defendant may move at any time before judsrment : Sanjant v. Rmd, ] 
 Ch. D. 602 ; and this Rule does not i)revent an a[>plication ct parte by a defen 
 dant under sec. 53, sub-sec. iS of the Act : If irk v. Lockwoml, W. N. 1883, 48. 
 
 Acquiescence or delay will generally prevent a |)laintiff from obtaiiiinjif an 
 interlocutory injunction ; but he is not bound to move till the hearing, and delay 
 till then is not such acquiescence as will disentitle him then to relief : Lavies 
 v. Marshall, 4 L. T. N. S. 105. 
 
 The Court in cases of urgency and necessity may grant an injuncticm or 
 receiver Ijefore service of the writ of sunmions, and on an ex parte ap))lication, 
 as where it was alleged that trustees were on the eve of bankruptcy, a receiver 
 was ai)|X)inted : Re IVs. Estate, 1 Ch. 1). 276. 
 
 Where notice has been given, an injunction should not be granted e-r parte 
 even where from pressure of business the motion cannot be brought on; 
 Graham v. Campbell, 7 Ch. D. 490 ; where however there is some defect in the 
 notice served, the Court may, when injury is likely to ensue by delay in servini; 
 a new notice, grant an injunction ex parte. 
 
 The usual undertaking as to damages should be inserted in all interlocutory 
 injunction orders: (iraham v. Campbell, supra ; and there is no excention in 
 this resi^ect in favour of the Crown : Secretary for War v. Chubb, W. N. 1880, 
 l28 ; 43 L. T. N. S. 83; nor where the injunction is granted on notice: Smiih 
 v. liny, 21 Ch. D. 421. As to undertakings as to damages, see 21 C. L. J. 44, 
 
 Great unexplained delay in making an application to enforce an undertaking 
 as to damages, was held to be a sufficient answer to it, though the applicant 
 shewed a primd faeie case : Ex. p. Hall, Re Wood, 23 Ch. D. 044 : see also 
 .Smith v. Day, 21 Ch. D. 421. 
 
 The defendant is entitled to the benefit of the undertaking even though the 
 injunction may have been wronsrly granted owing to the mistake of the Court 
 itself : Griffith v. Blake, 27 Ch. D. 474. See also Hunt, v. Hunt, 54 L. J. Chy. 
 289. 
 
 Where an interim injunction is granted over the next motion day or until 
 further order, it signifies that the injunction may be dissolved before the day 
 fixed, but cannot be extended beyond that i)eriod, except witii the leave of the 
 Court ; Bolton v. London School Board, 7 Ch. D. 766. 
 
 A trustee apjxiinted upon his own undertaking in a suit to act as receiver of 
 the trust proiwrty, is not, under ordinary circumstances, in England, entitled to 
 a salary as receiver: Pilkington v. Baker, British Mutual Inrestment Co. i. 
 Pilkivgton, 24 W. R. 234. But in this Province trustees are entitled to lom- 
 pensation as such : R. S. O. c. 107, ss, 37, 41. 
 
 ordOTjor 1135. It sball be lawful for the Court or a Judge, upon 
 and inspec- the application of any party to an action, and upon such 
 perty.^ ^"** terms as may seem just, to make any order for the deten- 
 tion, preservation, or iuepection of any property, being the 
 subject of the action ; and for all or any of the purposes 
 aforesaid to authorize any person or persons to enter upon 
 
INSPECTION OF PROPERTY, ETC. 
 
 873 
 
 Similai* 
 jurisdic- 
 tion of 
 Court of 
 Cliancery. 
 
 or into any land or building in the possession of any party Rule uss. 
 to such action; and for all or any of the purposes aforesaid to 
 authorize any samples to be taken, or any observation to be 
 made or experiment to be tried, which may seem necessary 
 or expedient for the purpose of obtaining full information 
 or evidence. J. A. Rule 398. 
 
 Identical with the Eng. R. 1875, O. 52, r. 3, (1883, R. 050). 
 
 The jxiwers given by this Biile are very innch wider than the mere power to 
 allow inspection given by the C. L. P. Act(R. S. O. 1877, c. 50), s. 1()8. 
 
 The Court of Chancery, under its similar jurisdiction, would not grant an 
 insiHfction on the application of the i)laintiif, unless satistied that he had a case 
 to l)e tried at the hearing ; nor in any case unless the ins])ection asked for was 
 necessary for the purjiose of enabling the party applying for it to prove his 
 case; Pi'Kiott v. Aviilo-American Telegraph Co., 19 L. T. N. H. 4(5; B'.ttlei/ v. 
 K!nmck,'Ln. I'J Eq. 90. 
 
 Insi)ection cannot be granted to one defendant of projierty belonging to 
 anotlier defendant, when there is no right in questicm lietween them in the 
 action : Shnw v. Smith, 18 Q. B. D. 193 ; and see Jtiile 508. 
 
 Inspection of samples was ordered in Munn v. McVonnell, 7 C. L. T. 1(59. 
 
 In an action to restrain defendants (who were owners of a house fronting on 
 the same street as a house owned by the plaintiff), from causing or ^)e^mitting 
 sewaj^e to be disci»arge<l from their jjremises into a drain l)elonging to the 
 plaintiif, and from permitting any comiection to remain between their premises 
 and the i)laintiff's drain, an order was made under this Jiale authorizing the 
 plaintiff to enter on that part of the street, the soil of which belonged to the 
 defendants, for the purpose of ex|)erimenting in order to discover whether the 
 pil)e wliich joined the plaintiff's drain i)roceeded directly from the defendant's 
 house, and for this purjMjse to dig up the street as far as might be necessary : 
 Lumli v. Bcauiiumt, 27 Ch. D. 35(). 
 
 Where the defendant in an action for obstruction of light and air, had not 
 delivered liis statement of defence, Archibald, J., refused an order for insixjc- 
 tion until he had disclosed his defence : W. N. 187(», 53. 
 
 In a nuisance action, an ap]ilication to insjject the defendant's works to 
 ascertain how the nuisance was occasioned was refused, as pr(H)f of the nuisance 
 could be obtained from external sources: Barlow v. Bailey, 18 W. R. 783; 
 see also Flower v. Lloiid, W. N. 187(i, 1G9, 230. 
 
 Upon a pri.mit facie case of mineral trespass or encroachment by the defend- 
 ant, or where the fact of trespass (which is denied) can otdy be ascertained by 
 ins|)ection, and no injury will result to the defendant therefr<jm, an interlocu- 
 tory order will l)e made for the ins|)ection of his mine ; and the order will, \\\u:n 
 necessarv, extend to the removal of the obstructions to the inspection : Seton 
 4ih ed. 208 ; see Cooper v. luce. Hall .O Co., W. N. 187(5, 24. 
 
 Tiie rule in actions for the infringement of letters patent is, that where a 
 plaintiff is unable to obtain clear and satisfactory evidence of infringement, 
 the Court, uiK)n a fair primd facie case being made out, will order the 
 defendant to jiennit an inspection to be made of his premises and machinery, 
 by proi)er jiersons named on l)ehalf of the plaintiflF : Seton 351. In an action 
 to restrain infringement of a patent for grinding grain so as to separate the 
 germ from the flour, inspection of the plaintiff's process, to see how it was 
 actually carried on under their patent, was granted. The plaintiffs did not 
 claim any novelty in the machinery, their spt^cification was ccnlined to a new 
 process or product : The </erm Milliny Co. v. Bobimon, 53 L. T. N. S. (59(5 ; 34 
 \V. R. 1<)4 ; 55 L. .T. Chy. 287. 
 
 In an action to recover jewellery, the defendant alleged that it belonged to a 
 third party, and had been deposited by him to secure a debt due to the 
 defendant. The Court ordered it to be given up to an officer of the Court : 
 Ydati v. Braham, 4(5 L. J. C. P. 415. 
 
 
 Mineral 
 trespass. 
 
 Infringe- 
 ment of let- 
 ters patent. 
 
 Preserva- 
 tioi- of sub- 
 ject of 
 action. 
 
874 
 
 EXTRAORDINARY REMEDIES. 
 
 r 
 
 Rnlei 
 1136, 1137. 
 
 Keceiver to 
 
 preHerve 
 
 projjerty. 
 
 Injunction. 
 
 Practice. 
 
 On the affidavit of plaintiff, Htating that tho projxirty wan rapidly Wjim 
 damaged, the Ccnirt of Appoal appointed him receiver and manaffcr, though 
 no ap]>lication for this pr-|M)He han l)een made, either to a DiviNional Court or 
 a .Iiulgo : Hjiik v. Warden, 1 Ex. D. 3()9. 
 
 The Court han juriHdiction under this Ride to grant an interim injunction in 
 a proi)er case, to r«v'<train a defendant from ceasing to jmnip water out of a 
 nunc which the defendant' was in |K)HHeHHi(m of, and had agreed to lease, in 
 order to prevent its destruction : Stre/lc;/ v. I'rarii07i, 1.5 Ch. I). IIH. 
 
 As to authorizing the making of experiments: nt'.n Badimhr Anilin, itt.s 
 Lcvinxtein, 24 Ch. V. l.'itl. 
 
 Ai. application uncier this Rule is generally nia<le to the Court as in motions 
 for injunctions : see Rule .3!Mt, and Emjlixh v. Ciiinherurl/, W. N. 187.'), L'ofi; lnit 
 an order has been made in Chambers : see ('(ii>iier v. Ince //(ill Cc., VV. N, 1876, 
 24. It should in general be ujMm notice: see the next /tule, and /{iiherKlum v. 
 f'ill, \V. N. 187.5, 231; but where circinnstances rendered it jiroper, on an (/ 
 parte ai>plication, an order for the purpose of insis-eting and taking sample* 
 wasmiwle: Heiniemijv. R/ihviann, 3() L. T. N. H. ,51; \V. N. 1H77, It; an order 
 for detention and i)re8ervation of pro|)erty : Melui.-h v. Milton, 24 W. H. 117!'; and 
 an order for inspection of a mine, in an acti(m for damages for witlidrawini: 
 support to land : Mitchell v. Darleii Main Colliery Co., 31 W. H. UW). 
 
 A party is bound by an order for preservation of property as socn as he \m 
 notice of it : Ex p. Lani/ley, 13 Ch. D. 110. See als(j \t. 3.5, nupra. 
 
 Amount 
 of lien 
 
 up 
 
 ll3tt. Where an action is brought to recover, or a 
 ciVimed defendant in his statement of defence seeks by way of 
 paid into counter-claim to i-ecover, specific property, other than land, 
 propertT'' and the party from whom such recovery is sought does not 
 delivered dispute the title of the party seeking to recover the same, 
 but claims to retain the property by virtue of a lien or 
 otherwise as security for any sum of money, the Court 
 or a Judge, at any time after such last mentioned claim 
 appears from the pleadings, or, if there be no pleadings, by 
 affidavit or otherwise to the satisfactioi> of the Court or 
 Judge, may order that tho party claiming to recover the 
 property be at liberty to piy into Court, to abide the event 
 of the action, the amount of money in respec*^^ nf v.uichthe 
 lien or security is claimed, and such further sura (if any) 
 for interest and costs as the Court or Judge may direct, 
 and that upon such payment into Court being made, the 
 property claimed be given up to the party claiming it. 
 J. A. Rule 402. 
 
 Same as the Kng. R. 1875, O. 52, r. «, (1883, R. (5G4). The iK>wer given by 
 this Rule is new. 
 
 5. Prohibition. 
 
 Appiica- 1137. It shall not be necessary to file a suggestion on 
 order of any application for an order for prohibition. The appiica- 
 tion^inav tioH may be made on affidavit, subject to the general rules 
 affldk*v1t""*^ to motions and evidence on motions. New. 
 
 only. 
 
CERTIORARI — INTERPLEADER. 
 
 875 
 
 t'liKhf .1 iiiliii, (tc, V. 
 
 The power given by 
 
 Thi' first cliuiMe of thin Rule w taken from R. H. (). 1877, c. 52, h. 2, the Rules 
 remaiiiitiK cliuiHti in new. I13f>-1H1. 
 
 Prior to U. S. O. c. 52, h. 2, a mere siirniin« or NiipfffeHtion of the ground for 
 proiiil>itiou wiut enouph to put the .Sni)erior Court in motion, and tlie migiffMtion 
 waH not ri'qiiirKl to rxi verified when? there was a nlea in the Court below, but 
 if there was no plea, then an affidavit wiiB required. 
 
 Section 2 of the R. S. O. c. 52, jirovided that it should not be necessary to 
 file a HUggestic n on any api)lication for writ of prohibition, but h\icIi ajiplica- 
 tion miKlit be made on affidavit only. FroviHion was also made for a declara- 
 tion in prohibition Uffore the iss\ie of tiie writ, where the Court so directed, 
 and for demurrer or pleading' by the defendant to such <l(«!larati(<u. These 
 provisions have all l)een omited, and by implication abroffated, by tlie jiresent 
 Uiile. It woidd seem, therefore, that tne right to the writ has to lj« triced now 
 uiKin a motion, subject to the same rules as other motions, Anionjfst others, 
 Ruk» r)7(i to 581 will be applicable, and, in stich casts as the Court would 
 fomierly direct a declaration and subsetjuent proceediiigs in i)roliibition, a 
 Court or iFudge can now ujxmi a motion direct tnat (evidence Iw taken in such 
 way as may seem jtroper, and if necessary that an issue Ik; tried. 
 
 The motion has usually been made in ChaHilwrs to a .ludffe. The Master in 
 ChamlMTs and Local .Tudges and Masters have no jurisdiction : see linlr 30. 
 
 A successful party on an a])plicatiun for prohibition is entitled to, and shouM 
 be awarded, costs, unle.sH the Court, in the projier exercise of a wise discretion, 
 canseegiMHl cause for depriving such party of them; and such party sliould 
 not be deprived of costs, unless there aiii)ears to have been impropriety of 
 oondnct, which induced the litigation, or impropriety in the conduct there<if : 
 Ri' MrL,:n,/ V, Kmit/h, {'>), 12 P, H. 5()3. 
 
 llS^i. No writ of prohibition shall issue in any case, writ ^^^^^^ 
 but the order for prohibition shall have the same effect as 
 a writ of prohibition formerly had. New. 
 
 llSfK Any such order may be discharged or varied or P>"'ier may 
 set aside bv a Divisional Court, subject to an appeal to the 
 Court of Appeal. R. S 0. 1877, c. '52, ss. 2 and 3. 
 
 The rijjlit of apical 1. ere given would seem to apply though the urth'T for 
 prohibition may have been marie in Court, l^sually orders nuide by a .Fudge 
 in Court are not api)ealable to a Divisional Court except by consent, see 
 Rule 21!). 
 
 7. Certiorari. 
 
 1140. No writ of certiorari shall issue in any case, but certiorari, 
 an order may be made which shall have the same effect as 
 a writ of certiorari formerly had. Neio. 
 
 
 8. Interpleader. 
 
 (i) Generally. ^' '■- 
 
 1141. Belief by way of interpleader may be granted. Ji^^tT-fn' 
 
 (a) Where the person seeking relief (hereinafter called g^ftVAed!*" 
 the applicant) is under liability for any debt, money, goods, 
 or chattels, for or in respect of which he is, or expects to 
 
 .^ 
 
'irrr 
 
 ..J 
 
 876 
 
 EXTRAORDINARY REMEDIES. 
 
 . 
 
 % 
 
 
 3:. 
 
 r 
 
 Rule 1141. ijg^ sued by two or more partita (hereinafter called the 
 claimants) makiiif; adverse claim thereto : 
 
 (h) Whore the applicant is a sheriff or other officer 
 charged with the execution of process by or under the 
 authority of the High Court, and claim is made to any 
 money, goods, or chattels, lands or tenements, taken or 
 intended to be taken in execution under any proeesa, or 
 under an attachment against an absconding doljtor, | or to 
 the proceods or value of any such goods or chattels, by any 
 person other than the person against whom the process 
 issued. 
 
 Taken from Kii^'. Rtilos 1HH3, R. H50. 
 
 The wonls in )>rn,ck('ts arc not in tlin Kn^. R., liivvin^ Im'cii taken from 
 R. S. (). 1K77, 0. f)!, s. 10, otlu'rwisf tlin A'»/(',v art' the Hanu\ 
 
 liofoni this /i'i(/c the priuitice in force lx>th in ('ouinion Lnw ('units ;viiil In 
 E(|tiity remained in force nnder the .Indicature Act. 'I'ht^ iinuttice in the 
 Connnon Law Coiirtn was rv^juhited liy R. S. (). 1877, c. ,')4, is uniiiidHl by 
 44 V. e. 7; 4!l V. o. 1(>, ». 13; the jurindiction in K(iuity i\ce|il in tlie civscdf 
 interjtleader by Sheriff did not dejH'nd upon the statute : Mc.h.lluidii v. /."/kA/h 
 Mammir, Wc, 11 P. R. IHl. 
 
 The practice on interpleader hy a .Sheriff wan the same in ;dl the Conrts, 
 being re^'uhited by R. S. (). 1H77, c. 54, and amending' Acts. 
 
 In the case of interpleader by a stake holder, in the Connnon Law (Jonrta this 
 was only jjossible where he was a defendant, havinp been actii.illy sued ; in 
 Ecpiity, it was sufficient if a claim was msule against the aiiidieant, and ho was 
 in danger of being molested by conflicting rights : Story, K(|. .lur. h. SOS. 
 
 At Common Law a stake holder se^'king re' if 
 mentioned, when he was a defendant in •n\»'i 4 
 of which he had to be in jMjssc^ssidi 
 dispose of them in any manner d' 
 to have received a distinct notice of 
 sued was not enough. The claim oi 
 same subject matter in res|H'ct to u 
 not necessary that it should be an a 
 matter. 
 
 Where rent was claimed from A. by IJ., and A. was garnished by creditors 
 of C. (the father of H.), who, it was claimed, was tlie real lessor, A. refnsiii" to 
 to pay rent mdess protected from these claims, and being sued in a Cf- y 
 (\Hirt by B. for the full amount of rent, was held entitled to relief under tiiis 
 Ititir: lie Arulfraon <fc Barber, 13 P. R. 21. 
 Affidavits. Affidavits entitled " In the H. C. J. Chy. D. lietween A., a|>i)lic.ii t, and B. 
 
 and others, claimants," were held sufficient : Jlf Audcntun <(• liurlnr. .■mjira. 
 Coats. The costs of j)rocpe(ling8 are under Ruli; 1170 in the discretion of tiie Court, 
 
 and were ordered to be paid by the person causing the litigation Ht 
 Andersiiu <V linrber, supra. 
 
 A stakeholder inter))leading, ami acting hondfidr, is entitled to deduct fiom 
 the fund in dis])ute the taxed costs occasioned by the interpleader : Clench v. 
 Ihioleii, 5() L. T. N. S. 122, without prejudice to the question as to how the 
 costs are to lie ultimately borne : Searle v. Matthvics, \V. N. 1HH3, 17<1. 
 
 Interpleader by SherlffB.— Under the present liuh, the practice m inter- 
 pleader by Sheriflfs is substantially the same as under the R. S. ISTT, c. 54. 
 
 The disposition of the Court is to be more liberal in relieving the Sheriff than 
 formerly : Darling v. Collation, 10 P. R. 110. 
 
 ;i i:i 
 
 had to I 
 
 il.'- Court ; 
 
 I'se claim, an 
 
 urd i)arty had t' 
 
 y dc so, im above 
 I- me icy or gofnls, 
 III :i positiiin to 
 also was ref|iiirHl 
 >f<!tati()ii of iH'iliff 
 
 in resiiect of the 
 the def' iidant was sued, Imt it was 
 lute r' lit of proiH'rty in the subject 
 
INTERPLEADEn. 
 
 877 
 
 I 
 
 fter called the 
 
 r otlier officer 
 or under the 
 i made to any 
 lentH, tiikcn or 
 ny procena, or 
 r debtor,! or to 
 duittela, by any 
 )m the process 
 
 \f( IxM'ii takitn from 
 
 Tiiiw ("oiirtM and in 
 'I'lit' |ir,i(ti«' ill tilt 
 \ 'A, is aiiii'iiilt'd by 
 ■xct'iit ill till' caHi'of 
 IcKlltrniii V. Liiidvn 
 
 If ill ;ill the Courts, 
 t«. 
 
 iiion Law Courts this 
 n\ iictiiJilly Niind ; in 
 
 iipliwiiit, iiiid 111' was 
 )^^. Jnr. s. HOS. 
 
 "Illy di' so, iw above 
 I i'.»r iiiosicy ortjowls, 
 i)t> in a iiositioii to 
 li^ also wan rcqiiirMl 
 (' iK'ctution of iH'iiig 
 ti !■ ill rcsiM'ot of the 
 wivs sued, but it Wiw 
 oiHTty ill the subject 
 
 arui.slu'd by creditors 
 lesHiir, A. rcfusiiH- tu 
 IK sued in a ('<' 'y 
 'd to ruliof under this 
 
 I A., aindicai.t, aiidB, 
 
 II <C- liarhir, mijira. 
 (crctioii of tlif ''ourt, 
 the litigation i<t 
 
 ititloil to (Induct fiom 
 teriilHadcr : Clench y. 
 lestloii aH to how the 
 N. 18H3, 17(>. 
 the iiracticn in i"ter- 
 R. S. IH77, c. 54. 
 ieviiig the Sheriff than 
 
 IlKIUiriCH 
 
 to 1)0 made, 
 and brinK- 
 iii«in 
 claiiiiautH. 
 
 Wlien en- 
 titled, or 
 not, to in- 
 terplead. 
 
 The Slieriflf iiiiiKt have niadi> a Heiziire iM'fore he can ftliply : Omlrn v, ( 'rni'ii, Rule 1141. 
 10 I'. H. •ilX. 
 
 Moiii'V iiaid under jiroteHt by a claiiiiaiit was held to lie |ir<ieeedK or value of 
 mKU anil chattelH within tlie above Rule: Smith v. CrilehjiiUl, 14 t^. B. 1), 
 873. 
 
 "(JikhLs and chattelK" in the Kircutiitti Act, and i\\\n Ituli' incIiideH Htook : 
 Rmvii V. AV/.«./i, '20 0. L. .1. «!M); 4 0. L. T. r.!t4. 
 
 A Sliiritf nIioiiIiI e-xereise no liiHcretidii aN to the diH|Hi«itioii of the poodH 
 ncizi'd by him, but nhoilld (.'oiiie at onee to the Court, otherwiMe he will disentitle 
 liiliiHclf to protei^tioii : /iimwtll v. I'rttiiirrii; 7 I*. K. 303; Aildam v. lihuhmll, 
 10 1'. \{. lliH. lie nlioiild, huwi^ver, make Home iiKiuiry as to the nature of the 
 c'liiiiiis made, and inform the execution creditor of tlieni : Walkir v. NHik, 3 
 Cliy. ( 'h. .V.l. 
 
 Where the .Sheriff had wild with the coiiNentof both partiim, it wivh conNidered 
 that he had not iiii|iro(ierly o.\erciHe(l any diHcretioii of hi« own ; Diirlimi v. 
 CoUMun. 10 I'. H. 110. 
 
 All claimants of whom the Sheriff w awan- Nliouid 1m' broUKht in ; i'/nrkr v. 
 Fiirrell,>< V. R. '-'34. lHvisioii Court execution ereditorn are proiier parties, and 
 ihoiild be brouKht ill liy the Sheriff along with Superior ami County Court 
 ext'cutioii creditors : MacFir v. Ilnntcr, 1'. U. 14!». 
 
 Where soiiie writs are in the High (^ourt the interpleader application should Foruin. 
 b(i in tlif High (^iiwrt, though the sei/.iirii was under a County Court writ and 
 before the High Court writ came to the Sheriff's hands: Strange v. Toronto 
 Teliymiih ('o.,H V. II. 1. 
 
 A Siieritf was held not entitled to interplead by rea.soii of a claimant 
 iii»|iiiting the light of subseipieiit execution creditors to thego(Mls«ei/,ed, where 
 tiiere would be no fund to satisfy such siibseiiuent exi^cutions : i'aiindiiin Hank 
 of ('(imimirr v, Jinicf. 2 (\ L. T. '.12. 
 
 A claimant out of the jurisdiction may be served and compelled to inter- 
 ]ileiid : Hihiumt v. Ai/iiitnl, 4 (/. I'. 1). \\M ; (^rrdit H>runil<>t»<w. VdaH'inic, 12 
 y, li. 1). 171. 
 
 Where a SherilT seized but |mt no bailiff in possehsion of the gooda, and then 
 the laiidloni siu/.ed them for rent, it was held that a second seizure iiy the .Sheriff 
 WHS illegal as they were /// cnnloiliii liitin, and also that the validity of the 
 landlonj's chiim coidd not be deinded in Chanibers : Craiii r. I'aiiii, 7 1*. i{. L'Ol). 
 
 The Sheriff wa.s held entitled to interplead a second time in respecit of a 
 claim by the same claimant, alleging a different tith^: llaiiiinr v. Sull, 24 U. V,. 
 ^l H. ISO; but not to contest the claim of a landlord, which might have been 
 (lis|«wed of on a first apjilication : chn-l: v. luirnll, H I'. H. 234. A claimant 
 caniuit set up anotluT title in the same is.sue, but must make a Bub.sequent 
 application to the Court : lliirl.cf \. Lfis(iii,\ {)ni. 114. 
 
 (iiKxis in itoHsession of an Assignee in Insolvency under the Insolvent Act of 
 187."i could not be taken in execution, and neither a Sheriff nor an execution 
 creditor could sue the Assignet? and oblige him to interplead, though tiie debtor 
 mi},'litdo HO ; MfMitHtcr v. Matkin, 7 1'. H. 211. 
 
 Interpleader may be directed resjiecting the proceeds of a sale in the Sheriff's 
 liaiidK : Hnitth v. I'lrxfini <tv. Ri/. C"., 3 P. H. !M) ; and res]wcting money paid under 
 Iirotest Viy a ('lainiant wdiose gomls were seized, and who claimed the money ; he 
 was also ludil to be entitled to protection against an action for trespass for 
 entering upon the ))remises of a iierson otlier than the debtor: Smith v. 
 (.'ritchji,/,/, 14 q. H. I). 873 ; see also Kdmontlx v. Wallini/ford, 33 W. R. (i47. 
 
 In Diinrn, I v. 7Vr,s, 11 I*. R. (>(», it was said that interpleader orders .should 
 only he niiule with caution, and, wdieri^ goixls were in the possession of a third 
 person, there should lie strong presumptive evidence of the goinls being the 
 debtor's, which should ordinarily ajipear on affidavit of the belief of the Sheriff, 
 and also of the execution creditor. This oiiiniim has not iH'en to the full 
 extent followed in jiractice, the affidavit of the execution creditor is not c(;a- 
 sidered necessary : und see /6. 2()G ; also Edmmuts v. WaHinyford, 33 W, R. 
 647. . - . 
 
^ 
 
 m 
 
 
 878 EXTRAORDINARY REMEDIES. 
 
 Rule 1141. A Sheriff may disentitle himself to an 'nterijleader order by not coining 
 Delay. promjjtly to the Court when claims are mu 1e to the go<xls seized. He must 
 
 come within reasonable time; improi)er deliy will bean answer to tlit applj. 
 cation : Thnmimm v. W'iml, 1 P. R. 2C!»; McManter v. Milne, 2 1^ K. ;<«(>, What 
 will amount to such laches will depend upon the circumstances of each case' see 
 Boswifl V. Pfttiijrew, 7 P. R. 393 ; Wilkim v. Pmtnuni, II,. «4. He ig'not 
 justilled by the tact that the first seizure does not embrace all defendant's goods, 
 in delaying, to apply till he can get jKissession of the residue : Alillcr v. .Vi//««' 
 1 C. L." J. 327. 
 
 Where the claimant of the goods paid the Sheriff the amount of the execu- 
 tion, and the latlT tlien withdrew ; it was held that he h.ad not disentitled 
 himsflt to rel'' t by interpleader : Paris Manufaetnriny Co. v. Walls, 10 
 P. R. 138. 
 
 The inter^)leader order usually protects the Sheriff onlj' from actions, without 
 special jirovision the order in no protection to the execution creditor: /'«//■ v 
 Tai/lor, 1 C. P. 414; McVnUum v. Kerr, 8 U. C. L. .). 71; Imt the .Judge h.v 
 authority to restrain by the interpleader order actions against tiic execution 
 creditor as well as against the SheriflF : Buffalo A Luke Jlvruii Jluilwai/ Cumuani/ 
 V. Jlemmingway, 22 U. C. Q. B. 5()2. 
 
 Accepting and contesting an interpleader issue will not make execution 
 creditors liable for the previous seizure by the Sheriff, the execution creditor 
 cannot thus be made a trespasser b}' relation, or liable for the original seizure: 
 Kenned// v. Patter.iuv, 22 U. C. Q. B. 55G: Phillipii v. J'iiidlai/, 27 U. C. tj. B. 
 32. Where sjxjcial c' .i < ctions are given to the Sheriff by the execution creditor, 
 or in writing on the writ, by his solicitor, to make the seizure, imi action liw 
 against the execution creditor; Murrin v. S'llherg, 22 Q. B. D. (il4; but direc- 
 tions verbally given by the solicitor's clerk were held not sufficient to render 
 the execution creditor liable: ^iitith v. heal, 9 l^. B. D. 340. 
 
 Issue. Is.sues between the ])laintiif nd attaching credit'>rH as to the validity of tin- 
 
 the i)laintiff's judgment and e. c'cution, and the validity of th»' jdaintiff's judg- 
 ment against creditors gsuerally, and at to the attaching creditors for fraud, 
 f)r as being a iireference, were held warranted by R. S. O. 1877, c. .")4, ss. 3, 10 : 
 Leetch v. WilUamaim, 10 P. R. 220; see also iiiandard Insurance Com)>anii\: 
 Hwihes, 11 P. R. 220 ; and Doijle v. Lasher, Ki C. P. 263; and the present /(«/( 
 preserves the same ix)wer as was contained in the R. S. O. 1877, c. 54, s. 10 : 
 see the clause in brackets in clause (6) siqira. 
 
 Where a bank, one of several execution creditors, ina<le parties to an inter- 
 pleader issue, did not desire to contest the right of the claimant to its share of 
 the proceeds of the goods seized and sold, but was willing tiiat such share 
 should l)e i)aid over to the claimant in the event of the latter not succeeding iii 
 the issue ; it was held that the bank was not under the ciroimstances liable to 
 contribute to the costs of the issue ; but, nevertheless, was properly made a 
 party to the issue and woidd be entitled, if the claimant failed, to its ))roportifln 
 of the proceeds arising from the sale of the goods : Dumlas v. iJarvill, 12 P. R- 
 347. 
 
 Where on an [interpleader by the Sheriff an order is made for satisfaction 
 of the claimant's claim, the claimant is liniited to his claim put forward in the 
 proceedings, and cannot demand any amount not included in his particulars 
 of claim, on which the order was made : Hvkey v. Evans, 18 U, 13. D. 390. 
 
 Where the claimant is in tmsLession of the gorxls at the time of seiyn"*. '-nf 
 execution ci-editor is iiiade plaintiff in the interjileader : see Duncan v. Tees, 11 
 P. R. C<j; Dominimi H. A I. Compui\y v. Kdroi/, 7 C. L. T. 87; and sw 
 Wii}field V. Fowlie, 14 Ont. 105, 107. The form of issue in such cane is 
 "whether at the time of the seizur* the goods in question were exigible 
 under the f xecution of (the execution creditors) as against the claimant" : •« 
 Duncan v. Tees, 11 1'. R. 296. 
 
 The proper issue is whether the goods at the time of the seizure, not at the 
 time of the delivery of the writ to the Sheriff, were the goods of the claimant: 
 VanKvery v. Ross, 11 C. P. 133. 
 
INTERPLEADER. 
 
 879 
 
 An issue is to be talcen distributiveiy, so that the claimant may nucceed aa to Rule 1141. 
 iiartof the gixxls, though mit as to the rest : Fechan v. Hank <;/ Turonln, 10 C. 
 P. 32. Thi' (luestiou on the issue is not whether the execution creditor has a 
 right to seize, b>it wliether tlie claimant had such an interest in them as entitled 
 him to resist the seizure : (Imut v. Wilxim, 17'/. B. 144. 
 
 The foini of issue lietween a clrJ'uant and attaching creditor is wliether 
 the g(KKls attached were at the time of the sei/.i re the proin-rty of the claimant 
 as) against the attaching creditor, and not a.s :igainst ^' ■ ibsconding debtor: 
 l)iii/le V. Liisiii'i; 1(> C. 1'. 203; see form of issue wiier^^ . '/ e were two execution 
 crt'ditors and three claimants : McnluuiU Hunk v. IJcr.i-' 10 P. R. 117. 
 
 See also l.<'t'l<'h v. WHliam.iim, 10 P. R, 220; Stdndnrd Insiirunce Company \. 
 Hoiilm 11 P. R. 220. 
 
 The issue is to be filed as soon as settled, and filed in the county in which it 
 is directed to he tried : Rule 280. 
 
 Where an action had been brought by the execution creditor against a 
 claimant under an assignment, to set asi<le the as.signment, on an interj deader 
 application, the trial of the issue directed to be tried was postixniwl till after 
 the trial of tlie action : Brown v. Nelson, 10 P. R. 421. 
 
 A jiulfnient by one creditor cannot be impeached by other creditors (m 
 grounds of defence which the defendant might have, but has not, raised : see 
 He HdOiir, Triiikm' Bank v. Mnrraii, 13 ()nt. 727; Bitwirman v. White, 15 
 Oi.t. .'\'i.l>. <17!t. 
 
 Where claimants' rights among tnemselves were in dispute, they were all 
 m.ode defendants, and the exeoition creditors plaintiffs, it l)eing held that tiie 
 C'uurt would not try the ti'^'e of the claimants betwecTi themselves, tlie purjiose 
 of tlie issiif iM'ing answered if it was determined that the execution creditors 
 were, or were not entith'd to have their execution satisfied out of the gmids 
 seized: Mirchnntu Bank v. Ilirsun, 10 P. R. 117. 
 
 .\ jury notice iii.t servec' with the issue but with notice of trial, was held to 
 be an irregularity only and not a nullity : LecKon v. Lemon, II P. R. 103. A 
 jury notice will now be served inirsuant to sec. 7H (2) of the Act, iiii)nv ]>. 85. 
 
 Issues involving 8400 or less are to lie tried at a County Court sittings : see 
 Rule 1103. 
 
 Under The Cmlitors' Relief Act, R. S. (). 1887, c. 05, s. 4 (3), wh(;re the Sheriff 
 takes interpleader proceedings those creditors only who are parties and agree 
 t<i Contribute iiro rata to the exjienseof contesting adverse claims, are entitled 
 to share in any benefit derived from the contestation. The Court or Judge 
 may direct that one creditor shall have the carriage of the interpleiuler pro- 
 ceedings, and in such case his costs as Ix-tween solicitor and client fonn a first 
 charge uixm the moneys or goods which may in the proceedings be found 
 applicable to pay creditors. 
 
 Aa to whether these provisions apjily only after an issue is directed, or are 
 also apiilicalile where, under Itiile 448, tlie contest is by consent disiKised of 
 summarilv, the Court of Appeal wa. equally divided, in Hamilton v. Durrell , 
 15 Ont. \\^\^. m\. 
 
 On the trial of the issue tlie execution creditor i.s not required to prove his 
 judgment ; Hnmmill v. DeW'olf, 10 C. P. 41!l ; llolden v. Langlei/, 11 C. P. 407, 
 411 ; Mi-]V/ii,ier v. Learmoulh, 18 C. F. 1.30. 
 
 Where the claimant'n case is upon a chattel mortgage, evidence is necessary 
 to identify the goods mortgaged as those which were seized by the sheriff and 
 claimed; Jimes v. Jenkins, 25 ir. C. t^. B. 151. This, coupled with proof of . , 
 
 the due execution of the mortgage, on its face pur|K)rting to be made for value, 
 constitutes a gfxid primd facie case, the consideration tor the mortgage need 
 not be proved until evidence has betm given impeaching it: Furltnuj v. Reid, 
 12 Ont. 007. 
 
 The execution creditor may show that the goods are not the claimant's by 
 Mtting up the title of a third party, e.(/., a trustee in bankruptcy : Richards v. 
 Duncan, 17 1^, B. I). 544 ; l» Q. B. D. 451. 
 

 fflWrt' 
 
 
 880 BXTRAORDIKARY REMEDIES. 
 
 Rule 114L Where the plaintiff neglects to bring the isstie to trial, the coirse is to mwe 
 to rescind the interplearler order: SewM v. Buffalo, etc.. Railway Vfrnpany^i 
 U. C L. J. 29. The application is made in the original cause : Halter v. McLeixl 
 10 U. C. L. J. 200. 
 
 Sheriffs Where the Sheriff sells under the order, pending the trial of an issue, it waj 
 
 expenses, held in Ontario Bank v. Hcvell, 11 P. R. 240, that he must pay into Court the 
 gross proceeds of sale, without deducting his charges, but in lit id v, Murpbi, 
 12 P. R. 246, 338, it has been held that the net proceeds only need be paid in. 
 In the event of the claimant succeeding in the trial of the issue, he will not 
 be entitled to rtwover from the Sheriff the amount deducted for iwssession 
 money and exiienses of sale. The claimant's remedy is to apply, in a summarv 
 way in the pnxjeedings, for recovery of the amount deducted tor charges from 
 the execution creditor. 
 
 The claimant, if successful, is entitled to recover from the execution creditor, 
 as costs, the Sheriff's charges subsequent to the interpleader order ; doodman 
 V. Blake, 10 Q. IJ. D. 77, and cannot be ordered to pay the the costs of taking 
 possession, or pos8e.ssion money prior to the interpleader order : Mussey Mn, 
 Co V. aamlry, 7 C. L. T. 127. 
 
 A Sheriff was held liable to attachment by an execution creditor for not 
 taking security .(jr selling, pursuant to an interpletider order, there being noolaim 
 for rent or taxes which the Sheriff was justified in acknowledging : McLean v. 
 Anthony, (5 Ont 330. 
 
 Where a Sheriff, with the consent of the execution creditor and the claimant, 
 after an interpleader order, temiiorarily withdrew from possession, it was held 
 that the landlord might distrain, though he knew of the interpleader pro- 
 ceedings : < 'nipper v. Warner, 1 Cab. El. 152. 
 
 In Howell V. Itawson, 13 Q. B. D. 07, a receiver of property seized in execu- 
 tion was apiM)inted, pending an interpleader issue. 
 
 Costs of ex- An execution creditor is entitled oo see the claimant's affidavit in support of 
 creditor, his claim to ascertain the Imna fides of the claim and may then iibandon without 
 incurring any liability for costs : Wilkinn v. Peatman, 7 P. R. 84 ; unless he 
 has sjH'cially directed the seizure : Canadian Bank of Com.nerce v. Taihi\^ 
 P. R. S;")! : wlietiier or not thcs special directions were given in contemplation 
 of an adverse claim : Vanstaden v. Vannladen, 10 P. R. 428. 
 
 Costs of The Sheriff is not in general entitled to costs where the execution creditor 
 
 Sheriff. abi«\dons : see Wilkins v. I'eatman, nupra ; Van. Bank of Com me rce v. Tmht, 
 suf.ra ; 0. v. />,, W. N. 1883, 207 ; Arch. 12th ed.,' 1411 ; Cliurchill on 
 Sheriff's, 183. Hut he is entitled to costs from the execution creditor where 
 the latter has given s{)ecial directions to the Siieriff to seize particular goods. 
 and such sjiecial directions need not have been given in ccuiteniplation of an 
 adverse claim : Vanstaden v. Vanstaden, 10 P. R. 428. If special directions 
 are sworn to and dtniied, it must be considered that the Sheriff acted on the 
 writ : III. 
 
 For rules generally as to Sheriff's costs, see Sea tie v. Mattheu\i,W. N. 1883,176. 
 As to the Sheriff's costs where an issue is directed : see Bide 1158 and Snnln 
 v. Darlnw, 2(> Ch. D. (iOS. 
 
 Costs were formerly liy the usual interpleader order reserved, and disixisedof 
 in Chambers after the trial of the issue: see Carter v. Steniirl,7 P. R. 8.'; 
 \Vil.ion V. Wilson, 111., 407 : 3 Ont. App. 400 ; Ilartmont v. Foster, 8 Q. B.J). 
 82 ; and this form of order is still continued in the App. Forms Nos. 149, liO: 
 see, however, new Rale 1153 and notes. 
 Scale of Tlie Judge or officer who tlisjKJses of the costs may direct what scale of 
 
 costs. Uxation is to be followed : Beaty v. Hryce, P. R. 320. 
 
 Where the interpleader proceedings are i)ro{)erly instituted in the Hi|n 
 Court, though an issue be directed to be tried in a County Court, the Shenffi 
 costs will be taxable on the scale of the High Court, and semlile also thecosts of 
 the parties up to the interi)leafler order : .1 rkM v. (t'eir/er, P. R. 523. The costs 
 before the issue will ordinarily be on the scale of the forum to whicii the Sheuu 
 is compnllwl to resort, and after tlie issue, on the scale aj>plicable to the forum 
 
INTERPLEADER. 
 
 881 
 
 ii the interpleader pro- 
 irnperty seized in execii- 
 
 in wliicli the issut is directed to be tried : 
 Vhrialie v, Cunwai/, !) P. R. 521). 
 
 see Beat!/ v. Bri/ce, 9 I'. R. 325 ; Rul« H41. 
 
 Sec, tio of tiiH Jud. Act, applies to interpleader matters as well as to actions, 
 so that no api)eal lies from the decision of a Jud"' as to the disiwsition of the 
 ousts : /IdiiiiKint v. Faster, Kii/jra ; Ikati/ v. lin/ci; P. R. 323 ; an appeal lies 
 from the Master in Chambers to a Judge as in other cases : Christie v. Conuw/, 
 tf P. R. 52!). 
 
 As to how far County Courts have jurisdiction under this Rule, see note to 
 RulelWi. 
 
 The District Court of Thunder Bay has jurisdiction in interpleader since 
 R. S. 0. c. 91, s. o(i; its jurisdiction is "the jurisdiction possessed by the 
 County Courts " and this is determinable by tiie fact whether the process, under 
 which the goods were seized, issued out of the District Co\irt and not by the 
 amount for which tlie recovery was had : Is/iistrr v. i>ullir((it, !( C. li. T. 3. The 
 High Court has no jur''diction to entertain a motion against a verdict or 
 judgment of the District Court in the trial of an interi)leader issue : Jh, 
 
 Interpleader by Stakeholders.— Under the present Iti/lt; which in effect 
 follows the Equity practice, the person seeking relief is only retpiired to Ix; 
 under lial)ility for the subject matter, it is not necessary that he be first sued, 
 before a]ip]ying for relief. Probably this y^u/e does not e.xtinguish any power 
 to compel interpleader existing fcjrmerly in Ecpiity by bill filed, and now 
 possessed by the High Court: see Mclilhe.roii v. Lomlun Mosnuic, etc., 11 P. R. 
 181; Wi'slern Canada L. <C' .V. Ci>. v. Court, 25 Gr. 151; J/ciidcrniDi v. W'atsan, 
 23 Gr. 3,")5. 
 
 Formerly, if the defendant might be liable to Iwtli the jilaintiff and the 
 third party, he could not interplead. This nuiy be still the case under this 
 Rule: see >'((/■/• v. Ward, 2 M. & W. 844. 
 
 The Crown cann<jt be conii)elled to interplead, not having been mentioned : 
 see Caiidif v. Mauijhan, I D. & L. 745. 
 
 A i)ers()n outside the jurisdiction may be compelled to interplead : BeliiKutt 
 V, Ai/nard, 4 C. P. D. 352. 
 
 It would seem to be immaterial whether tlie titles on which the adverse 
 claimants rely are legal or equitable, see J\id. Act, sec. 53 (12), and I{iist"ii 
 V. Pnj,,; L. K. 3 Kk. 2()!»; Batik of Ireland v. Pern/, L. R. 7 Ex. 14; Jjunraii 
 V. Omiuii, L. R. C. P. 554 ; Eiujleback v. Xixon, L. R. 10, C. 1'. 045. 
 
 A debtor who is being sued, and who has notice of an assignment of tiie 
 debt, may interplea<l as to part and disjuite the residue ; and iiis api>lication 
 may be either under this I'ide or under the Judicature Act, section .53 (5), an<l 
 the proceedings in the action nuiy be stayed under the latter provision : Reml- 
 iwjv. Liiidiin School Board, ItU^. B. D."()8(). 
 
 Where the claim of one of the claimants is for damages for the detention of 
 the subject matter in disputt;, the api)licant is entitled to interplead: Allcn- 
 Immtjh V. .v. Katharines Dock Co., 3 C. P. D. 450. 
 
 Query, wiiether int.' rpleader is a projier remedy for trying the right ti > 
 securities as between co-sureties : Trerice v. Burkitt] 1 Ont. 80. 
 
 Interpleader was ordered at the instance of an .a\ictioneer ; Watson \. 
 Hmtmim, V2 U. C. L. J. 14!) ; Tanner v. Euroi)ean Bank, 10 R. I. Ex. 201, 
 and of a bailee a policy of insurance ; Attenhorouyh v. St. Katharines hock Co., 
 3 C. P. 1), 450. 
 
 A solicitor who has recovered judgment ior a client mider an ordinary 
 retanier lias no authority, without sfiecuil instructions, to engage in pnxjeedings 
 in mterpleader : James v. Hickncll, 20 C^. 13. D. 104. 
 
 The Local Judges were under the former Ra/es held to have jurisdiction in 
 interpleader matters, they l)eing jmjceedtngs in an action ; see Cimlsmi v. 
 ^ic", !) P. R. 4!)1 ; Swani v. Styddart, 12 P. R. 4!K). The Master in Cliam- 
 bers, and officers having like jurisdiction, would seem to have power in inter- 
 pleader matters, under the present Rules, so far as interpleader by Slieriffs and 
 oaiiees and (.Carriers, at all events is concerned. Interpleiuler in other cases 
 was perhaps not at the date of the new Rides a matter dealt with bv a Judge in 
 
 J.A. ■ 66 
 
•i * 
 
 !|f' W^ 
 
 Security 
 for costs. 
 
 ^1 
 
 <: 
 
 882 EXTRAORDINARY REMEDIES. 
 
 Bnlei Chambers and therefore under Hide 30 may not be a subject within the 
 
 1142-1144. powers of the Master in Chamliers, and such other officers. In IW Anderson 
 <0 liarher, 13 P. R. 21, tiie application was made to a Judge in Chambers. 
 
 Security for Costs. — Kitht^r party to an interpleader issue may Ix- ordered to 
 give security for costs : Swain v. Staddart, 12 P. R. 4!(0 ; over-ruling the 
 dictum in <'nniiduin liatik nf Vammoxe v. Middlctim, 12 P. R. 121. 
 
 An execution creditor made defendant in the issue was ordered to give 
 security, in l.nrdl v. Wardnqter, 4 P. R. 205; and the claimant in ll'a/forv 
 .W/r.v, 3 Ciiy. Ch. 5!). 
 
 Ifnder R. 8. O. 1877, c. 54, s. 10, jirovi^ion was expre,ssly miule f(ir rcqniriiif; 
 security for the Sheriff's costs to begi\en. Under tliis jjrovision it wiis IimH 
 that the Sheriff was only entitled to sucli security under circunistiuices where 
 it woidd l)e ordered between ordinary litigants: StrcrliiKiii v. Mnrrixhn^ld 
 P. R. 44<i. Without sueli express ]>rovision, the Sheriff would apiieiirmulprthe 
 present /tides to have the same risrht as formerly. The fact that the clainiant 
 was a married woman, and in straitened circumstances, was held an insnilieicnt 
 reason for ordering security : Rhodes v. Dawsun, 34 W. R. 240, 55 L. J. Q.B. 
 134, 
 
 blfn^vort" 1142. The applicant must satisfy the Court or a Judge 
 byappii- bv affidavit, or otherwise — 
 
 cant. . . 
 
 (n) That the appHcant claims no interest in the subject- 
 matter in dispute, other than for the charges or costs; 
 and 
 
 {h) That the applicant does not collude with au}' of the 
 claimants ; and 
 
 (c) That the applicant is willing to pay or transfer the 
 subject-matter into Court, or to dispose of it as the Court 
 or a Judge may direct. 
 
 Taken from Eng. Rules 1883, R. 8.51. 
 
 A lieu for "costs or charges" did not formerly de])rive the apjilicantof his 
 right to interjilead : see li'xl v. Iltii/s, 1 II. it' C. 718, also Allrnhnrcmjh \. 
 St. Katharincx />,„k C»iiip(tiii/,:AC. P. 1). 450, 4()(). 
 
 The objection that a st.'ikeholdtf has, by taking indemnity fmni one 
 claimant, disentitled himself to relief, cannot hv taken by tin ■ clainiant whu 
 gave the indemnity ; Th"iiiji,Siin v. 11 '//,'//( ^ 13 Q. R. D. 032. 
 
 A form of affidavit will be fcmnd in the Ai)i)endix, Fonn No. .52. 
 
 Adverse 1143. The applicant shall not be disentitled to relief by 
 claimants, reasoii ouly that the titles of the claimants have not a 
 
 common origin but are adverse to and independent of one 
 
 another. 
 
 Taken from Eng. Rules 1H83, R. 852. 
 
 T^^tiou'to 1144. Where the applicant is a defendant, application 
 F)e'mad'ei)y for relief may be made at any time after service of the writ 
 
 defendant, ^f g^^j^^Qj^g- 
 
 Taken from Eng. Rules 1883, R. 8.53. 
 
 The fonn of affidavit in the Ai)|>endix, Fonn No. 52, seems to contemplate 
 the ai)i)lication In-ing made before defence ; but probably this will not hunt 
 the terms of the Rule. 
 
INTERPLEADER. 
 
 883 
 
 subject within the 
 TH. In I'c Andersm 
 fe in Chamtx-ra. 
 \w may he ordered to 
 4<)0 ; ovcv-ruling the 
 '. R. 121. 
 
 was* ordered to give 
 laimant in W'idkerw 
 
 ly miule for requiring 
 provision it washnld 
 ' cironnistances wliere 
 ',/((/)) V, Mi'i-risnii,Vi 
 .'oiildaiiiiear under the 
 
 fact that tlie cliiiniiint 
 van held an insuitieient 
 
 R. 240, nuL.J. Q.B. 
 
 Court or a Judge 
 
 st in the subject- 
 barges or costs; 
 
 5 with any of the 
 
 ,y or transfer tlie 
 of it as the Court 
 
 ,.. thpaviAifantof his 
 .8, also Att'ithnm'ijh\. 
 
 r indemnity from one 
 !n by tl'e claimant who 
 
 onu No. t)2. 
 
 ntitled to reUef by 
 iiants have not a 
 ndependent of one 
 
 ndant, appHcatiou 
 service of the writ 
 
 ,2, seems to ^'"^ 
 ,al,ly this will not Im"' 
 
 1145* The apph'cant may make a motion calling on t^ie fi'i^iijo 
 claimants to appear and state the nature and particulars oi J^l^^^^^^^ ^^y 
 their claims, and either to maintain or relinquish them • 
 
 Taken from Eng. Rule.s 1883, R. 854. , . 
 
 applicant. 
 
 1I40> If the application is made by a defendant in an stay of 
 action the Court or a Judge may stay all proceedings in the '^'=''°"' 
 action. 
 
 Taken from Eng. Rules 1883, R. 855. 
 
 1147. If the claimants appear on the motion, tl'e Court order 
 or a Judge may order either that any claimant be made a 
 defendant in any action already commenced in respect of 
 the subject-matter in dispute in lieu of or in addition to the 
 applicant, or that an issue between the claimants be stated , 
 and tried, and in the latter case may direct which of the 
 claimants is to be plaintiff, and which defendant. 
 
 Taken from J-jig. Rules 1883, R. 85(5. 
 
 114H> The Court or a Judge may, with the consent of Disposal of 
 both claimants or on the request of any claimant, if, having "immiary" 
 regard to the value of the subject-matter in dispute, it "i'^"'"'''' 
 seems desirable so to do, dispose of the merits of their 
 claims, and [subject to appeal,] decide the same in a 
 summary manner and on such terms as may be just. 
 
 Taken from Eng. Rules 1883, R. 857. 
 
 Under the English R\ik's 857 an<l S()(), a decision by the Judge sumitiarily is 
 not api)ealal)le : see Li/mi v. Mun'is, l!l (.^, R. 1). 13<), Tile words in bracliets 
 111 tliis Ralr are not in the English Rule, so that in Ontario tiie decision will bo 
 aplH'aktile as in otiier cases. 
 
 As to wiietiier it is necessary that the consent, which gives jurisdiction under 
 this /^(/>' should api)ear on the face of the order, see Hamiltim v. Durrell, 15 Ont. 
 A|)|). oW), 513-51(). 
 
 The Court has no power to impose conditions on the claimant without his 
 consent, affecting iiis right to raise defences : (ifrhard v. Miintd'jn, (Jl L. T. N. S. 
 564; unless the claimant is seeking any indulgence from the Court. 
 
 II41I. Where the question is a question of law, and the Que^i'iuus 
 facts are not in dispute, the Court or a Judge may either** 
 decide the question without directing the trial of an issue, 
 or order that a special case be stated for the opinion of the 
 
 Court. 
 
 Taken from the Encr. Rules 1883, R. 858, which, however, further provides 
 expressly that the p^ovi^ ions of the Eng. Rules corresponding to Rules 554 et seq. 
 eliall ajjply to the special case. 
 
 1150. If a claimant, having been duly served with a Failure of 
 notice of motion calling on him to appear and maintain, or appea*r?or' 
 relinquish, his claim, does not appear in pursuance of the ",'^^y"gu^. 
 
 mons. 
 
884 
 
 EXTRAORDINARY REMEDIES. 
 
 % 
 
 
 'i^. 
 
 c 
 
 ,.?l 
 
 n0i-iis3 "o*'^^®' ^^'» liaiving appeared, neglects or refuses to comply 
 with any order made after his appearance, the Coiut or a 
 Judge may make an order declaring him and all persons 
 claiming under him for ever barred against the applicant, 
 and persons claiming under him, but the order shall not 
 affect the rights of the claimants as between themselves. 
 
 Tiikt'ii from Kng. Rules 1K83, K. K;')!!. 
 
 Ill niiikiiitf a" ' .>'. ~ l)arrin(? a claimant, wiicrc the applicant is a (It'tVndnnt in 
 an action, tliere is no powtT to niak(^ it a term of tht- order that tlie )ilaiiititf 
 shall pay the costs of tlu^ defendant in the orijjinal action, apart from those in 
 the interpleader proceediuRH : Ihiiixva v. Mudilux, 12 i^. 15. i). 1(M>. 
 
 ^aie^of^"* I15.I. Where goods or chattels have been seized in 
 goods execution by a sheriff or ether officer charged with the 
 execution, executiou of process of the High Court, and any claimant 
 alleges that he is entitled, under a bill of sale or otherwise, 
 to the goods or chattels by way of security for debt, the 
 Court or a Judge may order a sale of the whole or a part 
 thereof, and direct the application of the proceeds of the 
 sale in such manner and upon such terms as may be just. 
 
 Taken from Eng. Rules 1883, R. 8G1. 
 
 I152> In case a Sheriff or other officer applies to a 
 Court or Judge for relief by interpleader proceedings, and 
 any execution creditor declines to join in contesting the 
 claim of the adverse claimant, the Cour*^ or Judge may 
 direct that such creditor shall be excluded from any benefit 
 which may be derived from the contestation of such claim. 
 48 V. c. 13, s. 27. 
 
 The Cmliturx He/iff Ai/ \]{. S. (). c. (i.")), s. 4 (3) provides that tiiosc cri'ditors 
 only who ar(^ jiarties to interpleader proccedintrs and agree to ccnitribute 
 pr^i i(it<i to the expense of uontestin'' any adverse claims shall he entitled to 
 sliare in any ))eneHt derived from tli< contestation of such claims, so far ivs it 
 may be necessary to satisfy their executions or certificates. 
 
 Final (lis- 1153. TliB Court or Judge who tries the issue may 
 
 aiTuiattJi-s. finally dispose of the whole matter of the interpleader 
 proceedings, including all costs not otherwise [)rovide(l for, 
 New. 
 
 Taken from Kng. Rules 1883, R. 8(y. 
 
 Formerly the interpleader ordi'r reserved the riuestion of costs and ail nthfr 
 (juestions to be disposed of in Oiiamhers after the trial ot the isstie. Thi! 
 provision is still containeil in tlie forms of order in tiie App. iMirms >» 
 148-100. 
 
 In some cases it may be necessary however toieserve (juestions, for instanui 
 if any questions in whicii the Sheriff is concerned are not disposed ()f, otlicnvisfi 
 unless the Sheriff is made a Jiarty to t\w issue, the .Judge who tries tiie issw 
 cannot finally disiMise of the wii( le matter. 
 
INTERPLEADEU. 
 
 885 
 
 Tlie Shoiiff ui'fd not receive nntice of a mcition respecting the costs of the Rules 
 parties to tiic issue : O'/lri.-n v. JSiJI, !) P. R. 4!)4. 1164-H06. 
 
 Tiin i)avtit's were directed to ]>i\,\ their own coats, and directed each to pay 
 half thi' costs of the Sheriff, in M'Li'irii v. < 'antral Riiihrai/ Co., 10 P. R, 32!t. 
 A claimant piirtiidly succeeding? was given tlle general costs of the issue, with a 
 deiiuction of one-sixth in respect of the goods as to which he failed ; Scijswiirth 
 V. Mrriil''!! Xi!r-r I'hilliij Ci., 3 Ont. 413. 
 
 1154. Where in any interpleader proceedings it is neces- ^ji^g"^"* 
 sary or expedient to make one order in several actions or 
 matters pending in several Divisions, or before different 
 Judges of the same Division, such order may be made by 
 the Court or Judge before whom tbe interpleader proceed- 
 ing may be taken, and shall be entitled in all such actions 
 or matters ; and any such order (subject to the right of 
 appeal) shall be binding on the parties in all such actions 
 or matters. 
 
 Taken from Eng. Rules 18H3, R. 8(i3. 
 
 11»?5. In case a Sheriff has more than one writ at theincaseof 
 .suit or instance of different persons against the same cutfonsraii 
 property, it shall not be necessary for him to make a {Jr^ce^d in"' 
 separate applicati-^n on each writ, or in each action ; but ""fion for' 
 he may make one application, and may make all the inter- 
 persons who are execution creditors parties to said applica- ^ '^* ^'" 
 tion, and the Court or Judge before whom the application 
 is made shall take such proceedings, and make such order 
 thereon and therein, as if a separate application had been 
 made upon and in respect of each writ. R. S. 0. 1877, 
 C.54, s. 11. 
 
 1150* In ease there are writs from several Courts, cases of 
 including the High Court of Justice and one or more County fron^se"- 
 €ourts or including the High Court and one or more f' ^ho'/**' 
 Division Courts against the same goods, and whether at ^i'ij^'"j^*^^ 
 the suit or instance oF the same plaintiff, or of different 
 plaintiffs, the application for such interpleader shall be 
 made to the High Court, or to one of the Judges thereof; 
 and such Court or Judge shall dispose of the whole matter, 
 as if all of the writs against the goods had been issued 
 from the said Court ; and in such case the County Court or 
 Division Court shall have no cognizance or jurisdiction 
 whatever in the matter. R. S. 0. 1877, c. 54, s. 12 ; 49 V. 
 c. 16, s. 13. 
 
 The application is pro])erly in the High Court, though the first seizure is 
 iDiide ill a County Court : Stramjc v. Tonmtn Telegniph Co., 8 P. R. 1. 
 
 Where tile writs are all from County Courts, the Sheriff is now to apply in a 
 
 
886 
 
 EXTRAORDINARY REMEDIES. 
 
 Rules County Court under linlc 1102, and the costs will bo on the scale of thatf'niirt- 
 
 1167-1161. Itiile llfiT) ; see fomierly P/n/ins v. Biainir, S P. R. 181 ; Mamtnt v. Lmuhilk, 
 
 8 P. R. 57. Where one of the writs is in the High Court, the contH of the 
 
 motion shouHl be on thts Hi>?]i Court scale : lb. 
 
 Orders as 
 to sale, etc., 
 in cases 
 under the 
 two last 
 Boctions. 
 
 1157. In any such case as in the next preceding two 
 sections mentioned, the High Court, or a Judge thereof, 
 shall make such order with respect to staying proceediiifis 
 on the several writs, or with respect to directing a sale of 
 the goods or property in question, as may be necessary, 
 and with respect to the final disposition or order to be made 
 as to the goods or the proceeds thereof, and in all other 
 matters whatsoever, as fully as if all the writs bad been 
 issued from the said Court. R. S. 0. 1877, c. 54, s. 13. 
 
 By the word " Sections " 'Rules' is probably intended. 
 
 When an 115^. In case an issue is directed to be tried for the 
 
 dered, the determination of the adverse claim in respect of projiertv 
 
 nmy'tax seized or taken under an order of attachment or writ of 
 
 andTe^rve ©xecutiou, the Sheriff (or other ofiicer) to whom such order 
 
 allocatur on is delivered or such writ is directed may tax the costs 
 
 eacipai >• j(;,(,m.j.p(j ]jy jjj^ [^ cousequence of such adverse claim, and 
 
 may, when taxed serve a copy of the certificate of the samf 
 
 upon each of the parties to such issue, and the successful 
 
 party upon the issue shall tax such costs among his costs 
 
 of the cause, and upon receipt thereof shall pay over the 
 
 same to such Sheriff or other officer. R. S. 0. 1877, c. 64, 
 
 8. 15. 
 
 2«!^ffur' IISIK If after the service of such certificate the party 
 party succeeding upon the issue neglects or refuses to tnx sueli 
 the Sheriff costs, the Sheriff or other officer may obtain an onkr that 
 for costs, ^jjg successful party shall pay the same. R. S. 0. 1877, 
 c. 54, 8. 16. 
 
 compro- 1160. In case of any such proceedings being com- 
 mised, who promised between the parties thereto, such costs of the 
 to the * ^ Sheriff or other officer shall be paid by the party, plaintiff, 
 hfs^cMts"' or defendant, by whom the execution or attachment waa 
 sued out. B. S. 0. 1877, c. 64, s. 17. 
 
 1161. In case, after the seizure of any property under 
 attachment or in execution, an issue is directed, and the 
 property seized remains, pending the trial of the issue, in 
 
 ^^^ the cUi^tody of the Sheriff or other officer who seized the 
 
 may award same, the Court from which the writ or order of attach- 
 
 remunera- ' 
 
 tion. 
 
 It goods 
 seized re- 
 main in 
 the 
 
 Sheriff's 
 custody, 
 the Court 
 
INTERPLEADER IN COUNTY COURTS. 
 
 887 
 
 lilies being com- 
 
 ment issued, or any Judge thereof may make an order fo^' fi'Jf ilea. 
 the payment to the Sherift' or otlier officer of such sum for 
 his trouble in and about the custody of the property as the 
 Court or Judge deems reasonable ; and the Sheriff or other 
 officer shall have a lien upon the property for payment of 
 the same in the event of the issue being decided against the 
 claimant and only to the extent to which such issue shall 
 be so decided, ti. S. 0. 1877, c. 54, s. 18; 49 V. c. lO. 
 s. 13. 
 
 {ii) Interidender m County Courts. -' •-' ^'''- 
 
 / 
 
 ? 
 
 ll(>3> In case any claim is made to any goods oriuwimt 
 chattels taken or intended to be taken under an attachment {'uurt the 
 against an absconding debtor or in execution, under any fJJ'ga jfi*^',,. 
 process issued out of any County Court, or to the proceeds J^'n^'je^der 
 or value thereof, all the proceedings shall be had and taken uaa. 
 in the County Court of the county or union of counties in 
 which such goods or chattels are so taken or intended to be 
 taken, or before the Judge of such Court notwithstanding 
 that there are writs from two or more County Courts against 
 the same goods, and whetlier at the suit or instance of the 
 same plaintiff or different planitift's; or the said Court or 
 Judge in any such case, if it appears more convenient and 
 more conducive to the ends of justice so to do, may order 
 that the said proceedings be had and taken in the County 
 Court from which such process issued, or before th(i Judge 
 of such Court. E. S. 0. 1877, c. 54, s. 22. 49 V. c. 16, 
 
 8.13. 
 
 Till' jiirisdictidn of CVniiity Courts uikUt thiH Rule is confined to procerdinRS 
 astainst abscimding debtors, and after judgment where execution lias issued ; 
 there is tliercfore no jurisdiction in other ciuses in which under Ridf 1141 tlie ■ .-. 
 
 Hitfli Court may give relief by iuteri)leader : lU' Andersim .t- Rarber, 13 
 P.K.21. 
 
 116S. — (1) Where the amount claimed under or bywhenissue 
 virtue of an execution, or of an attachment against an tried in 
 absconding debtor in the Sheriff's or other officer's hands, ooSi't.^ 
 issued out of the High Court or under executions or attach- 
 ments in the Sheriff's or other officer's hands, issued out of 
 different County Courts, or out of one or more County 
 Courts, or one or more Division Courts, does not exceed the 
 sura of $400, exclusive of interest and Sheriff's or other 
 officer's costs, or when the goods seized are not, in the 
 opinion of the Judge, or other person making the order, of 
 the value of more than $400, the order directing an issue to 
 
 
 
888 
 
 EXTRAORDINARY REMEDIES. 
 
 % 
 
 
 
 /y 
 
 pjy^ 
 
 > 
 
 Rnles 
 IIM, 1166. 
 
 Where to 
 be tried. 
 
 be tried may direct that the issue shall be drawn up and 
 tried in the County Court of the county in whicli the issue 
 would, under the provisions of the preceding Kule be tried, 
 and in such case the issue shall be drawn up, filed and tried 
 in the County Court, and all subsequent proceedings tlierein, 
 up to and inclusive of judgment and execution, shall be had 
 and taken in the County Court which shall have jurisdic- 
 tion in the premises as fully as though the writ of execu- 
 tion or attachment had issued out of a County Court. 
 
 (2) When an application is made for an order, under this 
 Rule upon the ground that the goods seized are not of the 
 value of more than $400, a list of the goods and of the 
 value placed upon them shall be set out in the affidavit or 
 affidavits, upon which the application is based. 44 V. c. 7, 
 s. 1 ; 49 V. c. 16, s. 42. 
 
 The Act from which this /{ii/c i.s taken conferred u]K)n the Ili^'li Court a 
 iwwer which the Co\irt of Chancery had before by previous leffislntion : (Imrhti 
 V. Iiujrmn, 2Chy. Ch. 23H, 3(t!l ; iVi.'son v. Wilmn, '.i Ont. App. 4(IH ; JiKitin: 
 Brijce, 9 P. R. 323 ; and since the Act all interpleader issues involving less 
 than $40(), in whatever Division arising', are to be disixised of hv reference to 
 a County Court: Bmtii v. Brijcc, !) P. K. 320. 
 
 Where an interpleader issue is directed by the High Court tf. l)e tried at 
 County Court sittings under this Rule, the subsequent uroceediii^js such as r.'j. a 
 motion to postiwne the trial must be taken in tiie County Coiu-t : L'hhIi'H ((• 
 C(in. L. J. <t' Co. V. Mitr})ki/, 11 P. R. 8(»; and applications against tlie verdict 
 or for a new trial must be lay way of apjjeal to trie Court of Appeal iis in other 
 County Court cases ; a Divisional Court of the High Court has no jurisdictiun 
 in the action in which the interpleader was directed : ( Vo.sr v. Hjxhiniije Bank, 
 11 P. R. 181), distinguishing £«rA'fr v. Lccsan, D P. L. 107. 
 
 (3) The Judge making the order 
 powers as are provided in Rule 1157 
 proceedings. therein mentioned. 49 V. 
 
 shall have the like 
 with regard to the 
 c. 16, 8. 42 («)■ 
 
 Order for 
 costs to be 
 made by 
 Judge of 
 County 
 Court. 
 
 1164. The proceedings for and relating to the order for 
 costs, and for obtaining money out of Court, when the same 
 has been paid into Court by the Sheriff, and for such other 
 purposes as may be necessary, may, in the cases provided 
 for in the preceding Rule, be made to the Judge of the 
 County Court who tried the issue, and he shall have power 
 and authority to make such order in the premises as a 
 Judge has heretofore had in such cases, but the application 
 for such order may be made as now in the original cause. 
 44 V. c. 7, s. 2. 
 
 Costs of 1165. In respect of all such proceedings as shall be 
 mgs in had in the County Court,. the costs and disbursements shall 
 court.^ ^6 taxed upon the County Court scale. 44 V. c. 7, s. 3 
 
 
 a* '^■^: 
 
 IA,:U^^^ cnTtt. /cnrd^ /t(r<^ u^ ^ m' cttd/^^^ >^ . 
 
 A 
 
INTEHPLEAUKR J)V BAILEES AND CAUUIKUH. 
 
 889 
 
 IIOO* Any party who is dissatisfied with the ^'ecision ^'^" 
 of the Judge of a County Court upon any question of law aj,,,^^, 
 or fact arising in the course of interpleader proceedings, may *;',j\!j",j|;",,i„ 
 appeal from such decision to the Court of Appeal, andwitiHtioain 
 sections 40 to 52 inclusive of The County Courts' A<t shall Jljuaaor 
 extend and apply to and shall regulate and govern the ^;'J,';',',1j'^' 
 manner of prosecuting and determining such appeal. courtH. 
 R. S. 0. 1877, c. 54, s. 23. 
 
 (iii) Interpleader />// Bailees and Carriers. 
 
 /«''. < r. 
 
 / 
 
 ised. 44 V. c. 7, 
 
 1167' — (1) Any common carrier or other bailee ofnaiipeor 
 goods and chattels, whether under a special contract ormayintov- 
 otherwise howsoever upon whom any claim is made to any ienain" 
 goods or chattels in the possession of such carrier or bailee ani'iivit. 
 by any one or more claimants, whether such claims have or 
 have not a common origin, may either before or at any time 
 after action is brought by any such claimants respecting 
 the said goods, upon affidavit showing how the said goods 
 and chattels came to his possession, the nature and extent 
 of any lien which the said carrier or bailee has upon the 
 said goods and chattels for services rendered and money 
 advanced thereon, if any such claim exists, and the value 
 or supposed value thereof, also showing, who said claimants 
 respectively are, and the nature (as far as said carrier or 
 bailee knows) of the claims respectively made to said goods, 
 and that he the said carrier or bailee has good reason to 
 believe, and does believe, that if he doiivers such goods to 
 either of the claimants he will be sued by the other or others 
 of them, and that he does not collude with any or either of 
 the parties claiming possession of said goods and chattels, 
 apply to any Judge of the High Court of Justice, or, where 
 the value of the goods does not exceed $200, to any Judge of 
 a County Court of the county within which such goods are 
 at the time of the application, by motion calling upon all 
 the parties respectively claiming the said goods and chattels, 
 to appear and state the nature and particulars of their 
 respective claimn, and to maintain or relinquish the same. 
 
 (2) The Judge in disposing of said application, shall have 
 and exercise all the powers given to a Judge in interpleader 
 matters. R. S. 0. 1877, c. 54, s. 24. 
 
 S«e notes to Rule 1141. 
 
 .^ 
 
 "525 
 
mf 
 
 890 
 
 C08TH. 
 
 % 
 
 Imrrod. 
 
 ?im'"ii69 •I^** In case any such claimant, beinj^ duly served 
 Who'll and ^^^^^ noticG of the said motion does not appear to maintain 
 howciiiim- or relinquish his claim or right, or refuses to comply with 
 umy 1)0 ' any order made alter ai)pearance, tho said Judge may 
 declare him barred from making or prosocutinj:; his claim 
 against the said carrier or bailee, saving the right or claim 
 of such party against the person or party to whom, under 
 said order, said goods, or the proceeds thereof, may be 
 delivered ; and the said Judge may make such order 
 between the parties to the said application as may seem 
 just. E. S. 0. 1877,c. 54, 8. 25. 
 
 Seo note to Rule 1147. 
 
 
 t 
 
 ThoCoiirt II01I. It shall not be necessary, in order to entitle any 
 vidp for such Carrier or bailee to relief by way of interpleader, that 
 uoiT oMioii be should abandon any lawful lien he may have upon the 
 of baUeo. gQods and chattels the subject of such application ; and in 
 disposing of such application, the Judge, in case of any 
 such lien, may make such order respecting the satisfaction 
 or payment thereof, and as to the relief asked and sought 
 thereby, and as to the costs of the ])arties and the pay- 
 ment thereof, as the right and justice of the case may 
 require. 1\. S. 0. 1877, c. 54, s. 26. 
 
 4 
 ■4 
 
 I 
 
chaptp:r XIII, 
 
 COSTS. 
 
 1. Gknkual Ui-lks, 1170-11'J(). 
 
 2. Taxation, 111)7-1'231, 
 
 3. Hhkuiff H Fi;i:s, 1232-1241. 
 
 4. Skcitiuty roil Coars, 1242-1252. 
 
 To be in 
 
 (liKcretlon 
 of Court. 
 HavlnnK aK 
 to trustoo, 
 otc. 
 
 Of issiu) 
 tried l)o- 
 foro jury. 
 
 1. General Eulks. 
 
 1170. Subject to the provisions of The Judicature Act, 
 the costs of and incident to all proceedings in the Hi^h 
 Court shall he in the discretion of the Court, but nothinp; 
 herein contained shall deprive a trustee, mortgagee, or 
 other person of any right '■.o costs out of a particular estate 
 or fund to which ho woui' he entitled according to the 
 rules hitherto acted upon in Courts of Equity: Provided, 
 that where any action or issue is tried by a jury, the costs 
 shall follow the event, unless, upon application made at 
 the trial, for good cause shown, the Judge before whom the 
 action or issue is tried or the Court otherwise orders. 
 J. A. Rule 428. 
 
 (a) Costs of proceedings before judicial oflticers, unless 
 otherwise disposed of, shall be in their discretion, subject 
 toappeal. See Chy. 0. 275,585. 
 
 The first clausti is identical with tliH Knsr. K. 1 87;"), (). .W, r. 1. Rule 970 of the 
 Rulesof 18S3 i.s different in substituting for " the High Court," " the Supreme 
 Court," and in regard to the costs of trustees, otc. 
 
 Under the various stavUtes affecting costs, the rule in the Common Law Rules be- 
 Courts was, tliat costs followed the event, except in the cases in which it was fore the 
 otherwise provided by statuu". In Chancery, except in the cases referred to "'""• ■***'• 
 in the Ridf of a trustee or mortgagee, etc., they were in the discretion of 
 tiie Court ; hut the rule acted n|)on wa.s, that in the absence of special circum- 
 stanees tiie party failing paid the costs : Jtniies v. Norton, 1 Charl. Ca. [Court] 
 161 ; Dowmn v. Roof, (> P. R. 8!). 
 
 The effect (>f tiie present Rulv is to rojieal all former statutes which regulated 
 the disposition of costs instead of leaving them in the discretion of the Court 
 (except iR'rhaps such as give double or treble costs by way of a penalty : see 
 R. 8. 0. 1887, c. 71, s. 20; Welllxinks v. Comier, 12 P. R. at p. 448; 
 Ha»kcr v. Wmd, 78 L. T. Jour. 412 ; 33 W. R. 6<t7 ; 54 L. J. Q. B. 419 ; or 
 confer a rigt'.t to costs in the case of particular classes of persons : see ({nrtiM v. 
 liradkn, 3 App. Cas. 944 ; and Arscott v. Lillcy, 14 Ont. Anp. 283, 294) ; and to 
 enable the Court except in the cases here mentioned, to deal with costs as it 
 may think proper : (ianictt v. Bradley, Huprn ; Pamom v. Tinlimi, 2 C. P. D. 
 119; Tcmnt v. Ellis, Q. B. D. 40; see Parnell v. Mort Liddill «fc Co., 29 
 
 ,^ 
 
 
892 
 
 COSTS. 
 
 Rule 1170. Ch. I). 32"). But wlu-iv the Court had not iKjWcr, orijfiiial m- statut<in-, 
 before tli>' .\ct, to awarrl cost.s, jurisdiction to (lo ho in not confenvd liy tlii< 
 Ruir: Rr Mi'lx/M Oh. 1). 2J, (luestionint' Er p. Mcrcir.'i Cu.. 10 Cli. l)."4«i. 
 /it Hollidiiii ,'• Maiior of Wakrtiihl, 20 (l 15. I). •>!)!• ; Kr /i. H<,^,,iU,l of .S(. 
 Ktithcrifirs,' 17 »'h. D. H7« ; !<<' Ln- v. Hrmiwiirai/, 24 Ch. 1). liiiil ; sec' also 
 Ar.iriitt V. Lil/ii/, 14 Out. A]>\>. '2'X>: lie Ktiiiiht'x TniMx, 2(J Cli. I). ,Sl>;/(,. 
 Wimd, 31 VA\. 1. . t)()7 ; KiiiiiMoii v. Muriilui, 11 1". H. 304. Wiicrc uii .Vet givw 
 juri.sdietion to detcrniine (lucstions l)ut i.s .silent a.« to costs, the ('(nirt Iws 
 inherent jurisdiction to order a |ierson wronply jtutting it in iiidtidii t(]|]iiv 
 costs : lif liiimlidii Ciril Fiiiiil Aft, 40 Ch. I). 2KH. So where costs wcri' nut 
 asked ft)rl)y a rule /(/.■</ tlio\i^fh tiiey wert^ at l)ar, this is no olijecticm, tliccusts 
 being in tlie discretion of tlie Coiu't without any mention of theiii where the 
 opposite party appears : Jif I'cek <l' <l<ilt, 4(i I'. C. (I. 15. 211 ; Imt wlieie the 
 opposite party does not appear tile Court will not usually gixe ciwts if they 
 have not iH'eii asked iiy the notice of motion. In Kngland neither an inter- 
 jileader order for an issue : Wickn v. Waml, 2(i W. K. (J80 ; lldiiiimul v, tanUr, 
 S (I. JJ. I). ,S2, nor .sending a Ci;se for trial to a County ( "ourt : Formt r* v. Mmi, 
 44 L. T. N. S. 148, removes the case from tin jurisdiction of the High Cdiirt 
 as to costs: but sei' Jln/'W 11(12, 1105, and sees. itO and '.i" of the .Vet. 
 
 This /{('/(' also re))<!als all former /'/•"r7(Vc which laid down iinv sjiecial rule 
 as to costs : The Frinlilxrit, 1(1 1'. 1). 112. 
 
 The ])roceedings must have actually come into Court'; Itr JlnindMli'^ Trwii- 
 mark; !• Ch. I). (il.S ; and it is to be ohse^rved that this Jtiilr only has reference 
 to costs of proceediiiKs in the High ('ourt, not in the Court of Ap)ieal. The 
 Kng. Rule of 1883, r. !(70, is different in this respect. 
 
 General Outline of the Rules. -The Itn/i.i as to costs makt- provisiim for- 
 
 (1) Costs generally of proceedings in the High (^ourt : see p. S!I2. 
 
 (2) The disposal of the costs of the action whert' tried without a jury; see 
 in/'rn |). 8!t3, and 
 
 (3) Where tried with a jury : see p. 805. 
 The two last clas.ses of cases are furtlier.se|)arately considered. In act inns triwi 
 
 without a jury the costs are (sul>ject to certain s))eeial exceptions) in the dis- 
 cretion of tlu^ trial .ludge, and without an order made in the exerciM' ni such 
 discretion, no costs will be taxable to any jiarty ; J'lilt 1170. 
 
 In actions tried by a jury, the costs are not entirely in the discretion cif the 
 trial .liulge. J'riin'i favii they must follow the event, but the .liultri' lias a 
 discretion to make a different order '• u|)on good cause shown," but unlv in 
 that event ; linli 1170. 
 
 Generally 
 
 Non-jury 
 
 cases. 
 
 Jury cases 
 Scales of 
 costs. 
 
 Non-jui'y 
 
 cases. 
 
 Jury cases. 
 
 Where 
 
 judgment 
 without a 
 trial. 
 
 In the case of actn)ns lirought in the High Court, which might lia\e lieen 
 brought in an inferior Court (1) If the action is tried without a jnry, the 
 scale upon which the costs are to lie allowed is in the (iisei-ttinn (if the 
 .Tudgc entirely ; it was said in linnutt v. Whiti , 13 I', li. l.VJ, that there wasim 
 lietter guide than the rule which prevails where the action is tried by a jury, 
 (see Iliih 1172), but the .Judge's discretion is not fettered by Miy Hnlr. \i] If 
 the action is tried liy a jury, liith 1172 applies, and where th>' costs follnH the 
 event, the costs are reco\eral)le as defined ''v /;((/ell72. (3) In actions tried 
 by a jury, where good cause is shown, tin- .,ci>!e of costs is in the ili^cietioimf 
 the .ludge in the same way as if the action were tried without a jury. 
 
 Where judgment is entered without a trial, and theiefnre without any 
 expressed direction as to costs, the scale of costs is determined liy the Taxing; 
 Ofticer, \\w\v\- huh 1174. 
 
 (1) Costs generally of Proceedings in the High Court. The fnllowiiware 
 miscellaneous cases which illustrate the discretion of which the < 'mirt lias te 
 dispose of X\w co.sts of proceedings before it. 
 
 The discretion extends to costs dealt with on interlocutory piocee(lin(.'s 
 before the trial, so that they may 1m! directed to be borne by one iiarty in any 
 event : Victtrii v. 'in at Snrthn-n R;i. Co., !t (^ B. J). 108. 
 - The dismissal of an action for want of prosecution without costs is witliin 
 the discretion of the .fudge, notwithstanding 4 Anne c. 10, s. 23, and there is 
 uo appeal ; Snillinij v. I'lil/iini, 20 (^h. 1). 85. 
 
GENERAL RULES. 
 
 893 
 
 )riKiiiiil or statutiiry, 
 
 nut CDiifrnvd l)y this 
 
 .f ro.. 10 ("li. I). 4S1; 
 
 Er /I. Jlii.i/iitdl III St. 
 
 Cli. I), (ill!"; see" also 
 
 ts, •_'(■> Cli. 1). K'J; /(,. 
 
 Wlifif nil Act givfs 
 
 costs, till' Cunrt liiis 
 
 ig it in motion t(] piiv 
 
 wlltTf costs WflV IKif 
 
 no (liijcctioii, tlit'cibts 
 
 III of tllflll wllflV tile 
 5. 211 ; Imt uliere tW 
 iilly K'^'c I''"*'" if tiicy 
 
 rliind ni'itliiT an inter- 
 
 ; lldiliiifiil V. Instir, 
 mi't : Fiinmr^ v. Mmi. 
 
 tion of tlif llitfli Cdiirt 
 
 ' of tlic Act. 
 
 down liny spi'cial rule 
 
 /■'(■ llni ml Mil's Triiili- 
 Ui'li' olllv lliis rfferetice 
 Joiirt of A|i|Kul. The 
 
 niakt,' |)i'ovisioii for- 
 
 : see |). S'.lL'. 
 
 fid without a jury: see 
 
 idcrcd. fii actions tried 
 (■xcc|itioiis) in the (lis- 
 in tlif exercise of such 
 1170. 
 
 in the (liseietion nf tiie 
 t, Imt tile .luilp' lias II 
 ■if. siiowii," but iiiily ill 
 
 vliidl nii|,'iit iia\e lieeii 
 cd witiioiit 11 jury, the 
 1 tile (lisiTetioll iif the 
 L 1.VJ, tiiat tliere was 11" 
 ction is trieii liv a jury, 
 ■ed liy i.iiy Hull. |2) If 
 lere til'' costs t'lillowtlli' 
 2. W 111 actions tried 
 ;s is in the discretion "f 
 vitlioiit a jury, 
 therefore without iiliv 
 eriiiilled liy the Taxing 
 
 irt.- The followiiif,' lire 
 wliicli the Court liM to 
 
 ;('rlocutory procceilinps 
 
 rnc ity one party in any 
 
 1(18. 
 
 «-itl.ont costs is within 
 
 .". Id, .s. 2'.^ and tlu'i-e is 
 
 Where in an action of covenant the defendant paid money into Court and Rule 1170 
 denied the lireach, and a referee to whom tiie isHiies were referred, reported 
 that tile money jiaid in was sufficient to satisfy the claim, it was Ih'UI that the 
 costs were ill the diiscretion of the Court, and that the ])ro|)er metluKl of exer- 
 iiisiiii,' it was liy allowing? plaintiff his costs tip to the time of jiayinent into 
 Court, and defendant the costs of the action after that time : Biicktun v. Hiiiijx, 
 4E.\. J). 174. 
 
 But where a cause was referred by consent at a trial to the Master under the 
 C. L. I'. Act, as a matter of account, formal judgment lieiiiK entered for the 
 |ilnintitf, ami the order of r ■fereiice was siU'iit as to costs, after an award that 
 notliint,' was due to plainti'.s heyoiid money paid into Court, it was held tliat 
 the iiinceediiiKs were not ' proceeding's in the High Court " within this Ruir, 
 hut witliiliawn from it I),' an agreement of the jiarties, and, the parties having 
 afrrei'd to its terms, the Court could not add to it, and had no power to give 
 costs; W'imsli itr.it v. Btirrair Nii/i Buildinii Cd., 2 (-1. JJ. J>. 3Hr». 
 
 .\ (lefeiidaiit cannot escaiie the costs of a writ of summons hy tendering the 
 amount sued for before service hut after the issue uf the writ; O' Mitlli ii \. 
 Killmiill'irk; 22 L. K. Ir. ;W(J. 
 
 Where upon an interlocutory motion the phiintitf obtains tiie relief he .seeks 
 in the aetimi, he should make apjdieation to the defendant to consent to have 
 the uiists disposed of on motion, otherwise he will not be allowed the extra 
 cunts occasioned by going to trial. Without defendant's consent the costs can- 
 not Ix' disposed of on motion : .Sihd.i ii.'<rlii in v. Jliiniuril, .")7 h. 'l\ N. S. 712; 
 see niiikilin v. liiiiniiii, \) C. I.. T. ^\^^ ; Slurr w Miiidittnni, W. N. 1S7H, 2r.t ; 
 /^cfa V. Villi:!, 18 Cli. D. 77 ; Liniildl E.ttnV.t Coinjiditi/ v. Wvidimi, \\ . X. 1871, 
 148. 
 
 In Hnirki r v. KiKtirrti, 47 Ij. T. N. S. 1)45, the plaintiff claimed €4il 17.'<., thv' 
 defendant admitted the claim and counter-claimed fnv tTo, judgment was foi' 
 the plaintiff on the claim admitted and costs, and for the defendant for i'4<> 
 1111(1 costs. It was held that the plaintiff was entitled to costs up to, and includ- 
 ili)f the statement of defence, and the defendant to costs after that time : se' 
 also(>7i'/o;'</,/(i V. Ki-l/i/, l(i L. U. Ir. 2(W. 
 
 Ii\ various Huhn special provision is made as to costs in particular cases— 
 where tile Court has no jurisdiction: see Itiilr rj'ili and <>niit JVnrlhi rn, etc. 
 V. liiiit. 2 (^ H. I>. 284; Cruirtlur v. limilt, ;« W. H. loO ; of proceedings to 
 iittiu'li delits : Rulr 1180; on the granting or refusing a peremptory niiinda- 
 iiiiis: l{ulell22i'; on confession of defence; /.'«/'' 44(1 ; on discoiitinuiince: 
 Riih 1141; on accepting money paid into Court in .satisfaction : A'c/c <1S7 ; of 
 |iieliniiuaiy examinations of parties : A'"/e 1177 ; of ii. |)ection of documents: 
 Itiih WWi; (if proving diK^uments where notice to admit not given; Rnli' 
 lllMl; of applications to extend the time fiu' taking a lUdceeding : Rulr 11!»1 ; 
 by reasdii (if a partv not making adniissiiiiis : Rnh 11811; of iiriK'eedings relat- 
 ini; to '•third iia-ties": Riilr ;W2 and nimr v. .I.s7//v/. 42 Ch. 1). (182. 
 
 Non-jury Cases. - l>ixcritiini nf Juiin. No hard and fast rules can be laid Non-jury 
 down as to the manner of exercising discretion as to the costs ; see Th< Fried- cases. 
 Iiirij, ID i'. I>. 112 ; Bmli.iehi .\iiiliii, etc. v. Lnii.iti in, 2!l Ch. 1). .SliCi. 
 
 The discretion is a judicial one. and a i>laintitf who successfully enforce.^ a 
 legal ri^,'llt, an 1 in no ^^ay niiscunducfs himself, may not lie dejirived of costs, 
 Imt is entitled to them' as of right : Cuo/nr v. Whittinntoii, 15 Ch. I). 501 ; 
 77/, ('„„,/,„•, 4 I'. I). 120 ; Th< Munkxnitnii, 14 I'. I). 51 ; l.'/nmiiiii v. Fnn.iter, 24 
 Ch. !). L'MI ; ilniidhurt v. llmtt, 25 Ch. I). 182; Witmnna v. O/i/ii iilniiii, 27 
 Ch. 1). LMKI; 54 ]j. .1. Chy. 5(1; see also Mitclull v. I'lnii/ii.scK, 15 Out. App. 
 ■il7, where thecpiestion of the power to make a successful jiarty pay costs was 
 also raised Imt not decided. 
 
 So the .Judge cannot, except under some special Statute, impo.se costs Discretion 
 lieyond the costs of suit by way of penalty. His discretion, however, extends of Court. 
 to ordering a defendant to pav half the costs or a fixed sum in lier. of costs ; 
 Ki'li' 117S; Wilwitt v. Jliirhir. 17 Ch. 1). 772 ; Ri/mi v. /''/.v/,, 4 Out. .'W5, ;<44 ; 
 see tyklmrii v. Ediinrih, 18 Ch. 1). 440, 45!»; Hiirri.tiin v. MeSlialnni, 
 " . X. 1,SS5, 207 ; or no more costs than the verdict ; Hiitiock v. HaU. 28 Sol. 
 
 ^ 
 ^ 
 
|'('"*'?I5P|»3! y^' 
 
 894 
 
 COSTS. 
 
 ^1. 
 
 
 f 
 
 Rule 1170. Jour. 230, wliere only £21 was recovered on a much liirger claiin; or costs 
 between solicitor and client (in matters of equitable juris' 1 ' ion ;it any rate) ; 
 Amlnirs V. Barnes, 3!) Ch. D. 133 ; Suudford v. /'"'^■r, T , Api). uiio ,")77. 
 or to giving no costs where the action was \ juri.sdiction of an 
 
 inferior Court : VawUwntirK v. llorUm, it Ont. Ti-l.^ , h^ii/ v. Tiijliv, 18Ij. R. Ir. 
 40; or to directing a solicitor to i)ay costs jjersoiially : Bdrnunl \. Scoln 37 
 W. R. (i(iH ; or to refusing costs to a party, though successful, wlunf conduct 
 lias been discreditable : l>arbii v. Citii of Toronto, !l C. L. T. 'X!\ ; Bealiii v. 
 O'Ciouior, 5 Ont. 744 ; or where imjirojier charges are miwle .uid 1 t taiued: 
 Fri/ V. LiDic, 40 Ch. 1). 312; (or to directing jiayment of the op i>ii, larty's 
 costs of such charges: see A'lil v. Winter, '.) Cir. 2(il ; Hodiiin.^ v. Mr\iil 
 Ih. 30;") ; McKcnzic v. Yieldimj, 11 (Jr. 400;) or where a party otiicnvisb 
 misconducts himself, as by making an untruthful defence : Fiidditmm v. 
 Mid/tird, 10 (ir. 130; or unnecessarily bringing a suit: J/orlinii v. Wilmii 
 Hi (Jr. 255 ; S/irhi'iir v. Cturkt, 15 (Jr. (!()4 ; Fane v. Favc V.\ ('),. 1). 22K • Rf 
 r>d,hiirn, 40 L. T.N. S. 84H ; AV. N. 1H82, !I2 ; even in the ■ :,...• .,! ■„ mortt'agec: 
 McLean v. CroxK, 3 Chy. Ch. 432 ; Ashiiorlh v. Lord, 30 C:. 1) ;''i.%, Buiillun v. 
 L'oicland, 4 (Jnt. 720 ; (inthavi v. limoi, C Ont. 154 ; see alau i.::i''!picce v. i«, 
 in note to sec. 0.5 of the Act. 
 
 Wliere a flefendaut succeeds generally he may have the co-sts of some of his 
 defences on wliicii Ik^ has not succeedeil ; but where he has raised a distinct 
 issue and failed he ought not to have the costs of that issue : Blank v. Footimin, 
 3'J Ch. D. 078. 
 
 Where in an action tried by a Judge without a jury no order is nm/le as to 
 costs, none are recoverable by either jiarty : /if (ireal \\'r4irn Ailarlininij Co. 
 v. liauici; 'J P. K. 494 ; Lciviu v. Trimmiwj, 21 (^ 13. 1).230. 
 
 A J\idge has no [)riwer to delegate his discretion : Landiton v. Parkinson, 
 35 W. K. 545. 
 
 The fact that the action was brought without first making an application to 
 the defendant for the relief souglit, was not considered sutticieiit to deprive 
 jilaintitf of costs : (ioodhart v. Bi/itt, 25 Ch. \). 182 ; Witt/nan v. OfUKulaim. 27 
 Ch. D. 200; Kuxkin v. Itoliiaaon, 2 Tinu's llej). 18; but see Holt \. ,Smith,o 
 Times Rei). 321t. 
 
 A Judge b(^f ore whom a second trial is held, has i)(>wer to order a plaintiff 
 who recovers a nominal sum to pay the costs of Ijotli tr: ds, even wfieri' tlie 
 action is tried witli a jury : I/arris v. I'cthcrick, 4 Cj. B. D. Oil ; see Fuiu v. 
 Fane, 13 Ch. 1). 228. 
 
 Qurrrc, whether, when the plaintiff fails, the defendant can b(! ordered to jjay 
 the whole costs : Dick v. Yat(.'<, 18 Cil. I). 7t) ; !' inter v. <,\ W. R;i., 8 (j. 15. D. 
 25, 515; Butcher v. Pooler, 24 Cii. J). 273; LainUon v. Pirrkiti.'<oii,'X} W. K. 
 545; Mitchell V. Vanilu.vH, 14 Ont. Ai)p. 517 ; in such ca.se the defendant may 
 be ordered to jiay a co-defendant's costs, though there is no issue between 
 them : Church v. Fuller, 3 Ont. 417. 
 
 The Official (Juaidian's costs of defending an action on belialf of an infant 
 defendant were ordered to be |iaid by the plaintiff, notwithstanding jiiilK"i'''it 
 in fa\our of the )ilaintiff against the infant who was found to be party to t lit- 
 fra>id whicli occasioned the action : W'tntijale v. ^Yestltate, 11 1'. K. 02. 
 
 In an action tried without a jury, judgment being given for i)lain'itf, on the 
 claim and counter-claim, but for defen<lant against third parties with "such 
 costs as defendant woidd be entitled to by law," it was held that the co:*ts 
 being in the di.scretion of the Judge, and no discretion being' xereised in favour 
 of defendant against the tliird parties, the defcuidant was not "entitled by law 
 to costs : Lewin v. Trimminij, 21 l^. Ji. 1). 230. 
 
 For the effect on costs of a refusal of a reasonable sum tendered before suit, 
 Bee The William Si/iiiin(iton, 10 V. I). ]. 
 
 In an action for infringement of trademark, an offer of fidl eomiiliancc with 
 the plaintiff's demands was made after action connnenced, but, not\vith.staml- 
 ing this, a motion for injunction was brought on. The motion was held not 
 
GENERAL RULES. 
 
 895 
 
 •por claim! or ooste 
 !■ ' inn at any rate); 
 0,,( A\>\). 505, r)77; 
 
 jurisdiction of an 
 •. Tinhc, 18 L. K. Ir. 
 Unrnaril \. tietiks, 37 
 sful, wiiiisi' conduct 
 L. T. 371 ; Bmtlii v. 
 B .'ind iK.t -'Nfained: 
 tlio it\' -n. |iiir>y's 
 HiidaiiK V. McXtil, 
 V <i )iiirty otlii'i'wise 
 fence : FinUiiimm v. 
 
 Llarliiiil V. Wihau, 
 fr, ISr-h. 1). 22S;i?, 
 
 :.,-i .,!' :; '.norttragce ; 
 
 , ! ; ■ , Jloiilton V. 
 8>, A,.: ''iiircc V. Let, 
 
 o costs of some of his 
 has raised a distinct 
 n' : Bhnik v. Footman, 
 
 I) order is nia-lc as to 
 ii-rn Jdnrlisiiiij Oi. 
 50. 
 
 ,(imltton V. Parkitmn, 
 
 wing' an aiii>lication to 
 
 sutticient to deprive 
 
 (wini V. Oiijidilidm, 27 
 
 wee //':// v. *'wi(/i, u 
 
 er to order a iilaintiff 
 tri lis, ( veil wliere tiie 
 . D. Oil ; see Fune v. 
 
 can be ordered to jiay 
 <,\ W. y;//.,S(i. B. !»• 
 
 J'drkiiiKoii, X> W. R, 
 [vse the defendmit may 
 •o is no issue between 
 
 on behalf <if an infant 
 .ithstandiiiK jiidKnieiit 
 Hind tiibeiKirty tuthf 
 r, 11 r. K. <'2. 
 cnforplainMtf, ontiie 
 rd iiarties with "Midi 
 as liehl that tiie C":<ts 
 •ing ■ xeivised in favimr 
 iliol "entitled bylaw' 
 
 n tendered before 8uit, 
 
 )f full compliance with 
 ;e(l, but, notwitiistaml- 
 u motion was held nut 
 
 unnecessary, the compromise being insufficient, and the plaintiff was held Rule 1170. 
 entitled to costs : Frnrxxy v. Duij A Murtin, 0.5 L. T. N. .S. 101 ; see also 
 TrotUr v. Maclean, 13 Ch. D. o74. 
 
 Where a moti(m by plaintiff is adjourned till the trial and no mention is 
 made of tlie costs of it then or at the trial, a judj,niient dismissing? the action 
 with costs carries with it the costs of the motion : ft'osnrll v. IUhIkhi, 38 f'h. D. 
 iW5. See also as to costs reserved to be (lisjiosed of at tiie trial : Hnilfiof v. 
 Hoihint, 25 W. K. 102 ; Fritz v. Hohmm, 14 Ch. 1). tA'2. Hut orders disjxisiiiKof 
 interlocutory costs are not interfered with by a general award of costs at the 
 trial ; Bijimm v. (/oililoi, 4 K.\. 1). L'40. 
 
 In Frit: v. HoIdkiii, 14 Ch. I). 542, where costs of an injunction had been 
 ri'MTvei! till the trial, but counsel had then omitted to ask for them, the 
 oniissiim was su)ii)lied on subsequent motion under Jia/t 780. 
 
 Where ujion a reference by consent but not in a cause the costs of the 
 reference are left in the discretion of the arbitrator the costs of negotiating 
 and settling terms of the submission may be taxed as "custsof the reference"' : 
 He Aiitnllir'f'iri'tc.. <'.,., ,(• Tninisrtii/ ,1' '<'"., 21 (}. H. I). 182. 
 
 Jury Cases —Where Costs Follow the "Event."- The observation i follow- .Jury cases, 
 inp are in regard to the cases where the costs follow the "event,'' (.('., where 
 the iliulgt^ has not for " good cau.se "' otiierwi.se ordered. 
 
 Where th<' "event" is the result of a single issue, no difficulty occurs in the 
 a|>|ilicatiiin of the /ia/i'. It is v.here there are several issues, or there is a 
 Ciiunter-daim that difficulty arises. 
 
 Where tiiere are several issues, and neither idaintiff nor di'feiidaiit is wholly Whore sev- 
 successful, the (|uestion arises, what the " ( v( lit " is which the costs are to ''''i' issues. 
 fiijldw. it has been iiehl that the word " event" in this A'cA' is complex, and 
 nuist be read distributively as rega'':ls distinct cmsch of action. Tiie general 
 Cists (if tile cause follow the judg.iient, but llie costs of the jiarticiilar issues 
 must be respectivelv taxed in favo ir of the ])artv who has succeeded on them : 
 .l/i/./.v V. Ih'frii'H, 4 Ex. I), at |>. 180; Stimk-c "v. Tai/lm; 5 (^>. ]{. 1). oOO ; in 
 which the jirevious case of S/nplrs v. Yi'iini/, 2 Ex. D. 324, was not ajiproved 
 (if: see also Filia v. /tciilrii, (}. B. 1). .521 ; W'tirim/ v. /'fa nil mi, 32 W. U. 
 42)); Liiiu/ v. Ciiiii/ihrn, 14 <.^ K J). 821 ; Nairkr v. lirnn; //-.. 841 ; (Jonlart/ v. 
 i'nn; 13 (^ P.. I), oi),''' n ; Ahrheckcr v. Fri'st, 17 ^l B. I). 000; Jieitniin v. 
 Mimei/ M/.j. ('„., 13 P. li. 184. 
 
 Ineacd issue the "«'vent" is the result of all the proceedings incidental to 
 the litigation, and the costs which follow the event include the costs of all the 
 stages (if tliat litigation ; and therefore wliere a new trial was had and the 
 Iilaintiff on the second trial recovered a verdict, he was iield entitled to the 
 costs nf the first trial as jiurt of the costs of tiie action : Fiiiil v. (Iirat 
 Sufthrni l{i,.,:\ Hx. 1). 201; ('ir,'n v. llV/r////. 2 C. P. I). 3i54 ; \Vaii,i<i v. 
 /'('./itfiioi, 32 \V. K. 42!t; Wlijlit v. Shaw, 1!» (I 15. D. 300. So whereat the 
 first trial the jury disagreed ; <'i>jifla)ii/ v. JiU-nluini, 11 P. H. 54. 
 
 In A}iliiitt V. Aiulrcim, 8 (). B. D. G>7, where the jilaintiff succeeded tm s(mie 
 issues Imt was non-suited on < thers, no order being made as to costs, the defen- 
 dant wasiield entitled to costs of issues on which the plaintiff was nonsuited, and 
 the plaintiff to tlie otlier costs, including t lie general costs of the cause. Where 
 ajudgnieiit is ambiguous as to costs, apiilication should be made, to the .ludge 
 whiipniiiiiunced it, to correct theiimliiguity. It is not ])roi)er to bring the matter 
 "P "nan appeal from the taxing officer; 'll> ; S/iarn-ir v. /////, 8 (,^. B. I). 470, 
 may also be referred to, though in that case the Judge made an order as to 
 costs, and the (piestitm was the riglit interpretation of it. There the plaintiff 
 su'.'eeeded on three heads of hi' claim and was awarded costs in respect of the 
 amounts recovered, and the defendant was given co.sts in respect of the rest, 
 liierefore the ])laiiitiff was iield entitled to the general costs of the cause 
 excepting those which related to tlie issues (m which he had faileil, and tiie 
 defendant was given his costs of the latter issues. 
 
 .1 
 
 In cases where there are counter-claims most difficulty has occurred. 
 
 Casen of 
 
 counter- 
 claima. 
 
896 
 
 Rule 1170. 
 
 Cases of 
 counter- 
 claiui. 
 
 % 
 
 
 COSTS. 
 
 There is a distinction lietweeji eases where a defendant sets up a counter-claim 
 in tlie nat'ire of a set-off of a debt or liciuidated chiini, and a couiitcr-daini for 
 unli(iiiidated daniaf^es. 
 
 Under the present Rule 373 both kinds of claims may lie presented by the 
 defendant in the pleadinj? called a ccnmter-claim : see IknnHt v, IK/ii'((, 13 
 P. K. 151 ; but a true set-off does not lose its real character by being pleadwi 
 as a counter-claim : lUmn v. Fraurr, l(i L. K. Ir. 253 ; Ciith'r v. Mui-kc, 12 P K 
 5!»4 ; liinnitt v. White, 13 P. R. 14!l ; Sunderson v. Anlijielil, 13 P. K. 230; and 
 the co.'ts art! taxable on the same i)rincii)les as they would have been taxed 
 in like case under the Jud. Act : Cutler v. Morse, supra ; see also Wi<iht v 
 Shun; lit (^ ]5. D. 3%. 
 
 For the piu'poses of taxation a coiuiter-claim pro))erly so called is now to lie 
 treated as a cross action and the costs thereof may lie taxed se])arat('ly fruiu 
 those of the action : Eiiierstyn v. (ieiirin, 12 P. H. 3!(!i ; Hhrafiiui v. i«(w/ •'() 
 Kl B. I). 334 ; Amon v. B<Mett, 22 C^. B. \). MS. 
 
 Where tiiere is a co\uiter-claini in res|)«'ct of matters whicli could not lie 
 pleaded as a set-off, and the defendant recovers on liis counter-claim a sum 
 {■xceeding that wiiich the plaintiff recovers on his claim, the claim and counter- 
 claim iiaviuK for i)\ir))()ses of taxation to be treated as independent actions the 
 costs in each should i)e taxed in favour of tile successfid j)arty, subject to a 
 deduction in respect of the costs of iinv issu<'s on which lie lias not succewleil ; 
 Slirdjnie/ V. Liiiiiii, 20 <.^. B. I). Xi4. It is ijumaterial for jmrposes of taxatimi 
 whether the form of the judKment be for recovery by eacii party of tlieaniimiit 
 found due to him, or by plaintiff or defendant for the l)alancein liisfavnur; /'/. 
 
 In tiie case of a true counter-claim the plaintiff cannot foresee that tiii'ilcfeml- 
 ant will set up the counter-claim, but may prefer to bring a cross-action, while in 
 tlie case of a set off, he must know of the existence of tile claim and siioul(lgi\' 
 credit for it, if good : see Her>iii;n v. Ford, 71 L. T. Jour. 313; Stooke v. Tuiilur, 
 infr<t. 
 
 Therefore when^ the plaintiff establishes iiis claim and the defendant a set- 
 off of an erpial or greater amount, the defendant has succeeded and the plain- 
 tiff failed, and tlie defemhint is therefore entitled to costs of the acti(m ; 
 Stooke v. Tiijilor, 5 (^. B. J). 57(> ; Jiaines v. Bromhii, (i (l B. D. 7114 ; Hmtwit 
 V. Ford, su/tni. 
 
 On the other hand where the iilaintiff establishes a claim and the defendant 
 estalilishes a counter-claim in the nature of a cross-action, i.( ., both claim and 
 counter-claim are successful, the jdaintiff is entitled to the costs of the actimi 
 (without any apportionment of chargi's common to both claim and counter- 
 claim), and the defendant to such costs only as are prope'i'ly attriluitaMc to the 
 counter-claim : lie Jiroirn, Want v. Mor.v, 23 C'h. D. 377": Stooki v. Tatllur. 
 .lu/ira ; tJrnii v. l)ari<lxoii, 5 Kx. I). IH'.I ; EUin v. JJrsiho, (J (^ B D. 521. This 
 gives the general costs of the action n.it to the party recovering the most, tr 
 to the iiarty to whom the litigation is on the whole favourable, Imt to the 
 plaintiff: Hoines v. Jlroiideii, su/ini : I'mrson v. Miplei/, 32 W. K. 4()3 ; -i" 
 ... T. X. S. ('(2!», (because his costs are those of the action), whether the lialance is 
 in favour of the plaintiff : llidliioni v. Price, 41 L. T. N. .S. ('.27 ; 27 \V.K.4IXi; 
 or of the defendant : /{<■ liroirii, Woril v. Morse, su/mi. See also \\'<iriii;n\ 
 Peiiniiiiii. 32 W. K. 42it ; M ]j. T. X. S. (133; and Couiihliii v. Hull inim-nrlk 
 5 Out 2<i7, whert^ costs were directed to lie taxed \\\n>n this ]iriiiciple au.l j>id(r- 
 men t was directed to be entered for the partj in whose favour the balance 
 should be found. 
 
 Similarly, wh-re the claim and counter-claim are both dismissed, the plain- 
 tiff is to pay tl'.' defendant the general costs of the action, and the defendant 
 has only to pay the sum iiy which the costs have been increased^ liy the 
 counter-claim : Sotn r v. Hilton, 11 Ch. 1). 41() ; Manon v. llrentini. 15 Cli. D. 
 287. 
 
 Where the claim was dismissed witliout costs, and the counter-chiini with 
 costs, the .Judge ordered defendant to pay lialf iilaintiff's costs, as a coiivpiuent 
 iiKKle ot settling the matter ; Wihiwtt s.'liitrher, 15 Ch. D. 5)0 ; 17 Cli. !>• o4. 
 
 I 
 
COSTS. 
 
 897 
 
 Wlicii' at ii jury trial tlif iil.iiiit'tf "s claim was adiiiittfd cm the iilca(liiij,i-s, ilule 1170. 
 Imt a ciiiii.tci'-i'laini fur ilaiiia'j:'--^ t.i :i lart;ii' aiiimmt was sot \\\i, it uiis licit! 
 that (■'i>t- s|i luM t'lilldw the i-vi'iit, and 1h' l:i.\cd ;is in Jliiifim \. Jlrnm/i ii. and 
 tliiit thr .IuiIl'i' liad nii jurisdiot ion in tiic aliscncf nf fjoud ciinsc tn urdi r uusts 
 til till' |ilaintill' iliiun tn tlir ci muter flaini and tn tiic defendant uf tlie euuntur- 
 ilaim aii(i siiliseiiuent |pr(n;eedine:s ; Wn/Jil v. .^hiiir, HI (^. 15. D. 3!i(!. 
 
 In (iiiiUiilit V. ,Siili)iri('k\ I ('. I', 1). I.V.I. the jihiintitf claimed ii sum cNceed- 
 iiiir t'">". 'I'lie defendant pleided ii setdlf. and alsn niiide a cniinter-claim fur 
 j:iie(ls tn tJM' aminmt of alimil t2t. 'I'lie nctiun was referred to a .Master, cdsts 
 tiiiiliiili' the event. 'I'lie Mii-ter ci itilied tlial there was due tn the plaintitf <in 
 the cliiiiii tUi, and tn tlie defendant on tlie cnuntei-claini tL'X and tliat the 
 baliiiicT line tn tile defendant was i7. it was lield tliat defendant wa- entitled 
 til liis I'lists, as tile ((ue>tiiin w.-is, takintr claim and cnunter-claini tnnetlier. 
 wliidi was creditnr and wliicli was delitnr, and, tlie finding,' liein^^ in favour nf 
 tlir (letViiilaiit , that was the event w liicli tlie costs wen- tn fnllnw. Tlie leasons 
 [nr tlii- ilei'isiiin are ilis.eiited from li>' ('ncklmrn, ('..I., in Slnalii v. '/'nii/ar, ') 
 (}. 1). I>. ■'iSl', tlinnf,'ii the decisinn itself is aii|>rnved nf as in accordance with 
 tile |iriiici|i!es al)n\c nientiniii'd, Kecause the defendant succeeded, hut the 
 plaintitf failed, a- tn costs, not having recovered -f^d, sn as tn lie entitled to cnsts 
 miilir the ('nnntv ('ourt .Act. !See also //oiiv \. H<iliii<, 1(M^, 15. J). L'Sli; Riiuu 
 V. />./«/•, 1(1 Ji. W. Ir. 2.".3 ; Liunlw t'aiii/,l,</l, U i^l B. D. b-il. 
 
 Willie, in an arliitratinn, onsts were to fnllnw the "event "'and the defendant 
 rcciiviieii iimre nii his cnunter-claini than the plaintilt', it was held that the 
 ili'fciiilaiit was entitled tn the ^'eneral cnsts and the jilaintitf tn costs nf the 
 issiifiin which he succeeded : Lund v. < 'inniilicll, ]\ {}. }}. 1). 821, where /iiiliii.-< ' ' 
 
 V. I'lii'iiih ii isexjilained : lliivkf v. Jiiciii; Hi., M\ ; see also Ahrhfchrr v, Frust, 
 17(^ 15. 1). (illli. 
 
 Wlicir the plaintiHFs claimed t"{(»4 17s. !ld. and the (lefendantM set ti|) ii 
 cwintir-cliiini forflSd, the arliitrator to whom the matter was referred found 
 ill favour nf the plaintiH's for t.STl, and in favour of the defendants for WTi"). 
 The Oinirt, "ill appeal from tliel)istrict Kesristrar who had (riven the cnsts of 
 thf cause tn the I lefendants, ordered "thecnstsof, and relating to the plain- 
 ti?' "laiiii, and the proof thereof to lie paid liy the defendants, and tliecosts of, 
 anil v.lntiiij; tn tln' defendants" counterclaim, and the proof thereof, to 'le paici 
 liy the plaintiffs " : O'U; Miiir/ndit <f ( '-«. v. FirU>, 4 Ex. D. 301 ; 40 L. T. N. ,S. 
 ^1. 
 
 It lias Ihmmi held Im Kii},'laiid that the costs of an action in which jiirlginent 
 hailifcn sijrned in default of defence, and the damages have lieen assessed liy a 
 jmvu|iniia ivrit of in(|niry. d.i not follnw the event, lint are in the discretion of 
 thi .ludKc there having lieen no trial with a jiirv : >>til/i v. lltnrnilli ,2^ 
 .Sul .1(1111'. IL'7 ; W. N. l,s,S4, !H». See Ili'U U74. 
 
 Tjeprlvlng a party Of costs for "good cause." The .Fudge has no jnrisdic- 
 tidi tn deprive the successful party of costs or make order as to the costs so 
 that tliey do not follow tiie event unless there lie 'good cause': Jani's v. 
 'i'*/;«;/, l;{ (I 15. 1). 2(12; Wi'ilit v. Sl„if\ I'.l (^. 15. I). ;«Mi ; lliixlrn v. IIV.v/' 
 Lvmim, 17 (^. B. D. 373 : 14 App. Cas. 2(>; lkrti;i„i v. J/.f.vv,'//, 13 P. R. 184. 
 
 (iiind cause I' means seme niiscnnduct tending tn the litigatinn, or in the 
 ciiiusf (if the litigation, which re(iiiires the ( 'niirt in justice to interfere ; and 
 thi'ie is a marked distinction iK'twcen interteiing witli costs going to a plain- 
 tiff, and costs going to a defelidani : h'n ,<ii'liii , v. ]!nii,-,-ls,iH, Vi V. R. l."i(i. It 
 Hiihraccs eviiything for which the party was responsilile connectt'd with the 
 iiKitiitinn ur cniidiict of tlie suit and calculated to occasion niinecessaiy litiga- 
 tiiiiinr expense : llnxlfn v. Ruhrftsuti, 14 App. Cas. 2(1. The Judge is iiot coii- 
 niu-il tn till eiiiiNid' ration of the conduct nf the (lai'ty in the course of the lit- 
 u'ation, hut may consider his conduct |irevious to and conducing to the litiga- 
 tii'ii. He must, however, assume the tiiith of the facts found hv the jurv : 
 >l<"-'ifn \. Vis,; ;-) Kx, 1). 3(»7 ; .see also WrUlrdiL^i v. V<>,„j,;; 12 ]'."R. 447. ' 
 
 Uttwsdrcimversations written or declared to be withijut iirejudice ci 
 tsKcii into consideration : Walker v. WIlLshei; 23 (^ 13. D. 335. 
 
 57 
 
 anuot l)u 
 
 .T.A. 
 
898 
 
 cos rs. 
 
 
 Rule 1170, Th»' vecomnu'nfliitioii of the jury that each party Nlumld y.\y lijs (^n 
 costs was not consifU'rcl, and attirta/its liy soiik' of the juryiiicn tliat they 
 would not have acciiiicstH';! in a vi-rdict for dcft'iuhint if tiicy liad siipiBise;! thf 
 result would Im to throw all the costs on the plaintiff were licld inn linissilJe: 
 Farqtihdi- v. Itubeditmi, VA I'. H. I'lCi; Wittvcr \. Sdiri/n; l(i Out. App. 4-.>2. 
 
 IJut in an action of seduction wlierc the wron;,' tnnnplaincd of was partly 
 attributable to the girl's parents and the jury gave a verdict for the (Icfeiidam, 
 but declared that they desired him not to get costs, whereupon judi^iufiit was 
 80 entered, it wius held that "good cause" was shown for depiivin^' him of 
 coHts : Walmxli'ii v. MUilirH, T) Ont. 427. 
 
 The jurisdiction to de|)rive of costs for good cause has been lielil to lierigiitly 
 exercised where defendant has bv niisstatenieuts, made \nider (■irtiiinstantes 
 imix)siiig an obligation on him to l)e truthful, lirought litigation on hiiiistlf and 
 rendered an action against him reasonable: SiitiHj/'-' v. Smillt, 2 'j'iines fWl ; 
 and where the action was frivolous and vexatious: Mni-ijiriiiir v. '.'fciy, 4 
 Times 715. 
 
 The fact that <.nly a farthing damages is given is not conclusive iliat g(»xi 
 cau.se existed, but is an element to Ika considen-d : Mimrr v. (////, 4 Times 738. 
 
 Oppression or misconduct on the part of the successful jtarty is gdinl cause; 
 but not the recovery by the plaintitf of part (mly of what he claims: Junes v, 
 far/ill;/, 18 il K I). 2»i2 ; li7//(V(Hi.s v. UVov/, "rM L. J. (,». 15. r>(lii : /'„../ v. 
 Lfiriii, 1 Times lOo ; Cdiiitiiii/ v. Tunier, 3 Timi^s (1X4 ; I'fdr.iuiii v. lUu-Mt 
 Coiittn, IIj,, ~l'.} ; nor the fact that the recovery is for a sum within the juris- 
 diction of an inferior Court : Fimter v. Vifjel, 13 P. K. 133. 
 
 Time for 
 making ap- 
 plication. 
 
 ^.^ 
 
 
 Appeal 
 from tho 
 Judge's Av 
 cisiou. 
 
 The discretion as to costs jn'ovided for by this liidr to direct the tests tube 
 otherwi.se than iiccording to the event when an action is tried by a jury, can 
 Vie exercist'd only by the Judge who tries the case upon an application made at 
 the trial, or by a Divisional Court. 
 
 "At the trial"' would .seem to mean at the same sitting of the Court : Tm 
 Alkuh ( '(). v. /michdh, 3(> L. T. N. S. KM) ; Ki/iKixlaii v. Miii'kiviti r, .'i7 L. T. N. S. 
 390; or ".substantially at the trial" : Co/li'ii.i v. W'lfli, ')C. 1'. 1). at p. 3;<;an(l 
 the .Judge may reserve iiis decision on tlie application and give juilgineiit at a 
 .subseepient time : see ll'/.sr v. //< (/viOH, 1 1'. K. 232. 
 
 It has been .said in some cases \\iu' the Judge cannot entertain an applica- 
 tion m;ide sul)se(iuently to the |)ronouncing of judgment at the tr'il, iidrcan 
 the same or anotlier .ludge at Chambers : Jinh r v. Onhs, 2 <^ H. D. 171 ; Tm 
 Alkali Co. v. /.(iir.iuii, 3() L. T. N. S. 100 ; Hi (,\ ]V. Ailnrtisiii;! <'<>. v. Riiimr, !i 
 F. R. 4'.i4. 'I'iie ap|)lication sliouhl be made immediately after tlie vi-rdit't : -n- 
 Collins V. (»'(/<■/(, .-it/>ni ; Miilloch v. Joh.ixoa, 4 IT. C'. t^. U. 3.V.> ; .l/ii/"/' v. 
 M<Krii:.ii , 23 C. P. 2(il : or at any rate at the time of any motion for judKin™'- 
 
 Hut where the .ludge at the trial refused to exercise his diseretioii hut siinit' 
 weeks afterwards iieard ))iith sides on an application and made an niilcr 
 dejiriviiig i>laintitf of costs, it was held that hi' had power to dosn and walnut 
 fiiiirlUK officio by iiis refu.sal at the trial : Hit.vh ii v. W'l nt /.otnlon. 14 .\pp. C»*. 
 2(). Ami wiieie the Judge at tin- trial had omitted to exercise his discn'tiiina^ 
 to costs, it was held that ev.'U after his judgment h:id been ajjpeaied from, \w 
 might make an order as t(» costs : llnrdji v. /'irloril 12 I'. H. 42cS. 
 
 Where the J<idge at tin- trial antieip;>,t< v :(n application. In t'u' presence I'f 
 coiuisel on both sides, or williout .any application: Turin r v. II' nlinul, \ 
 C, P. l\ 432, he has power to make an order depriving tin- suec'ssful party "I 
 costs, though tiie coun.sel f.ir the other sich- has not in term.-^ applied to hiiuto 
 do so: Colli UK V. W'l-lik, 5 0. 1'. U. 27 ; Mur-'ilni v. Luiinixliiri mnl Wirkihn 
 Ril. Co., 7Ci. IJ. 1). 1)41. 
 
 Where the .ludge at the trial has made no order, the Divisional Court 
 
 has original jurisdiction inider this Hnlr to make an order to deprive :i 
 
 ■ successful part.v of the eusts of all action tried before a jury: l/(.w-<j- 
 
 Ikfrifs, and Siililonx v, Ln irmici, 4 Ex. I). 17l'> ; upmi an a|iplieiitinn iiijw' 
 
 within reasonable time after the trial : lioiciii v. hill, 4 (^ H- 1'- •'■"': . "" 
 
 has exercLseil his alternative jurisdiction the Divisumai 
 
 whei 
 
 rei 
 the 
 
 Judge 
 
COSTS. 
 
 899 
 
 sliDuM I'liy his own 
 w juryuifii that they 
 tlit'V had supiBise;! the 
 ere held iniilinissihle'. 
 , IC.Oiit. Apii. 42i 
 
 phiiufd iif was purtly 
 
 diet for tlic dcfi'iidaiit, 
 
 I'ViMipim juili^mt'iil was 
 
 for dejuiviii^' him of 
 
 been lifhl tciln' rightly 
 
 II mulcr oircunistancfs 
 tigatiiiu on himself and 
 :. Sill I til, 2 Times SSI; 
 
 Miir;/ir:/iir v. '7i(i/, 4 
 
 ;)t conclusive that piHxl 
 •(• V. dill, l Times 738. 
 
 III iiarty is ^kkI cause; 
 iiat lie claims: .li'iif.i v. 
 .[. (I. 15. rilUi: /W V. 
 ; t'ciii\niiii V. lliirMi 
 a smu within the juris- 
 
 to direct the costs tube 
 i,s trii'd l>y a jury, can 
 I an ai)iilication made at 
 
 ,iiit,' of till' Court; TjiM 
 
 Idckivib r, .'!" Ij.T- ^' J'' 
 
 5 V. V. 1 ). at p. '&\ ; and 
 
 and give judk'niHit at a 
 
 :)t entertain an ajiplica- 
 ent at tlu' tr'al, mircan 
 kix, 2<^ r.. 1). 171;^;/"' 
 nrtiKiin.l Co. V. Ii<iimr,V 
 •ly after the verdict ; <*'■ 
 (.). il n. 3.V2 ; M'[i"i- "■■■ 
 ,ny niotioa for judKiiient. 
 
 (■ his discreti(m hut some 
 ion and made an onlf: 
 iwer to do so and wa^ iml 
 ,M LoikIoii. ]i Ap|>. Cas. 
 exercise his discretiim as 
 1 lieen ai)pealed from, hf 
 
 2 1'. H. 4;i«- 
 
 nation, in the presence ef 
 • Tiiriirr V. H'lil'in'l, i 
 MX the successful party et 
 , terms apidied to limit.. 
 ■,,iiir„,lii>r iinil Yorbhin 
 
 isidiial Coiirt 
 deprive a 
 
 ,.,-, the Divis 
 
 . an order to deprive 
 
 (■fore a jni-.v • .--• , 
 dicatitiii uw* 
 ii."). But 
 
 poll an apiii 
 
 III, 4 i^ H. !>•.:. , 
 
 trisdiction the Divisinnal 
 
 Court has no jurisdiction to entertain an ajiittnil from his order: Marsdcn v. Rule 1170. 
 
 litncMhirc A' Yorkxhirc Riiilnmi/ Compaiui, 7 Q. B. D. 041 ; see, how- 
 ever, p. t>43 and ilicta in Coll inn v. Welch, 5 C. P. D. at \>. 33. Tliese dicta 
 are based uiioii the English practice which reqtiires an a|)|K!al from the decision 
 of a. fudge, to Ym to the Court of Appeal : see Rules of 1870, (). 40, r. 4, (1883, 
 r. r)()3). In this Province since a decision of a .Judge may be reviewed by the 
 Divisional Court under Mule 7!W, cases may occur where an ajipeal will lie to 
 the Div. Court, as to the Court of Appt-al in England : see 7 Q. B. D. 044 ; r.;/., 
 by leave of the Judge Toinlinxini v. S'luthcrii Ri/. Co., 11 P. R. 027 ; Mitchellv. 
 Vundiiseu, 14 Out. A\)\>. 517; or on the question whether there was giKxl cause : 
 see cases //(/"'■"; but see /icdnii'i/ v. Ilnrrisini, 10 L. R. Ir. 17, and Church v. 
 Fulbr, 3 (int. 417 ; Jiiclmrdxon v. Jmkinn, 10 P. R. 21(2. 
 
 If there is " gocnl cause " within the meaning of the Hiili' the Judge's discre- 
 tion is ahwdute and cannot be reviewed, but the question whether there is good 
 cause or not is subject matter of ajiin^al : Huxit ii v. Wait London, 17 ^l, B. D. 
 373; 14 Ai)]). Cas. 2(J ; Wuikir v. Wilhhcr, 23 Q. B. 1).330 ; WillUimx v. W(trd, 
 mL. J. <^. Ii. ")()(!; Itooki v. Czuniihur, 4 Times 00!t. If he holds that there was 
 no gcKxl cause the Court on ap|)eal cannot interfere : Moore v. (rill, 4 Times 
 738. 
 
 Appeals Respecting Costs.— This J'.ule combined with s. 05 '.f the Appeals for 
 
 .\ct has the effect, that (except in the ^?se of trustees, mortgagees, etc.,) '^°^''^' 
 no apiieal in respect of ciosts will be allowed, without leave, since s. 05 pro- 
 hibits ap|K'als, exceot by leave of the Court or Judge amwaled from, in respect 
 of costs, which are by law left to the discretion of the Court : Mitchell v. Van- 
 dmi'ii, 14 Ont. Ajip. 517, where on an apjieal by leave the decision was 
 reversed. 
 
 Onlers have therefore Vieen held tmappealable in resiK'ct of costs of inspec- 
 tion of a mine allowed under /tide 1135 : Mitchell v. Baric;/ .Uuin Colliery Co., 
 W(l. Vi. 1). 4i)7 ; costs directed to be paid by a solicitor personally by reason 
 iif misconduct or negligence ; but an appeal lies as to whether there has l>een 
 miscoiidtict or negligence: Itc Bradford, 15 Q. B. 1). 035, overruling S. C, 
 \\(l. B. 1). 373; costs directed to be paid to a defendant by a co-defendant 
 though there was no issue between them : Church v. Fuller, 3 Ont. 417 ; see 
 i.'.io Kiiiinir V. (ircat Britain AK.iurancc Co., 17 Ch. I). OOO ; costs directed 
 to lie paid by defendant and given over against a third party : Hornby v. 
 "arilmll, 8 (}. H. U. 32!) ; and costs dealt with before the trial and directed 
 to lie kiriie by one party " in any event "" : Vicarn (ircat Northern By. Co., 
 'IQ. I;. I). l()'8. 
 
 See also notes to sec. 05, and Bazctt v. Mun/an, 24 i}. B. D. 28 ; Harpham v. 
 Shaeklock, l!l Ch. I). 207. 
 
 Costs are not in the discretion of the Court, and therefore the proper 
 subject of an apjjcal where they couKi within the exceptional cases in this Bide. 
 
 Thus where a residuary legatee or executor takers jiroceedings for the admin- 
 istration of his testator's estate, he is entitled to costs out of the estiite tinless 
 there are s|K>cial grounds for depriving him of tlieni, and this rule is jireserved 
 by the present Rul< so that these costs are not in the discreticm of the Court : 
 Furrow V. Aitnt'n, lA Ch. I). .5K; f(dlowed as to the costs of residuary legatees ' 
 
 in Rf Wimilhall. (iarhatt v. Hc-mii, 2 Ont. 450 ; see also Croiinan v. Allen, 
 22 Ch. D. 101; John-stonc v. ('-*.<■. Ill Ch. I). 17 ; Turner v. Nai„wk, 20 Ch. D. 
 3113; Re Chinnrll, H Ch. D. 402 ; Be McClellaii, 2^> Ch. 1). 405, and Sandford v. 
 I'lifkr, 10 Ont. App. 5()5. Where a settlement is set aside : see as to the 
 trustees' costs Didion v. Thnm/woi, 23 Ch. D. 27S. in note to Jud. Act, sec. 
 tio. Trustees who have been guilty of iiiipro|)riety of conduct may be deprived 
 of costs in the discretion of the 'Court: Be J/oKkin'.-< Tritntn, O'Ch. I). 281; 
 Turnery. Hancock, .vipra : Be Cahburn, tiaiie v. Rutland, 40 L. T. X. S. 848; 
 W.X.18H2, !I2; Br Badcliffe, I'larne v. /iadclife, 44 L. T. N. S. Oli ; but such 
 an order is appealable us the costs are not in the discretion of the Court if 
 wi!^' """ "!' "''««""'l'ict : Be PiKjh, LewiH v. Pritchard, 57 L. T. N. S. 858. 
 Where (V,s7(/(,s y,»,' leiistent were allowed their costs it was hehl on appeal that 
 as they were iinprojierlv made jiarties, their costs were not in the discretion 
 ot the Court and were disallowed: Cooper v. Vcaeii, 45 L. T. N. S. 532: \V. N. 
 
900 
 
 Rules 
 1171, 1172. 
 
 
 
 i 
 
 
 
 Where one 
 
 of Severn 1 
 lilaiutili's 
 fails. 
 
 -.^ 
 
 In Inferior 
 Court 
 
 actions 
 broiiKlit 
 in Hiuli 
 Court. 
 
 COSTS. 
 
 Ishl'. "i. a nmrtyiit,'*'!' in fiititli'd, ;is liv cimtrnt't, to ."ill cfists |in)|i(ilv in. 
 (•ni-|(.il ill fiifiuciiiir Ills si'ciirity iiiid siu'li custs iiic nut in tlic ili^civtiin i,f 
 tlif Court: /.'' /lin (Iriniili. itr.. .s. .s'. Ci,., ."> ( 'li. I). L's:.'. .s,.. alsi, Udtt^ t. 
 M-L\ ().\ iiiid L".t ,S(.|. Jour. ITS, I'.i'.t. 
 
 (,'osls iif a liostili' ;ii-ti(in iij,'iuiist a triistcf sctkiiiL,' to cliiiryr liim \\\\\, ^■,,^^, 
 on accDiint of iiiiMondiH't wiri' not within tlic old rule of Cliaiiciiv that tin 
 plaintllV in an adiiiini.stration nuit i^ ontitlod /iriimi J'ncii to L•ost^ (,iit nf tin 
 lund. SiK'li (_'ii.-ls arc in the (jisi'i't'tioii (if tlif Court and tlicrcfdic an (irilira- 
 lo tiicin is not a|)|i('alaMc : W'illiiiina v. Jdiiik, 'M Cji. I). IL'O. 
 
 TIh' rulr that a tiiistcr's costs aro payalilc liitwii'ii solicitur ami clicin 
 is not c'oiihncil to c.-iscs whrrc lif is hroiiirlit into (.'durt af,'-ainst his w ill; Jllukdm 
 V. liiilniiii, DC. J.,. T. 1 i:i. 
 
 Trustfcs and fxcci'tors arc in litig'atinj,' with third pcrsuns, in tlic sim, 
 position in rcg.-inl tu their lialiility to co.^ts, hm [jartios litiKatiiif,"- in tlicir nwn 
 rii,dit : SmiUi v. \\'ill.,niif<ni, IH V. R. VM ; U. W. Jlii. v. ./uiu.s, 1.") (if. X,:>. 
 
 IITI. When several plaintiffs have hcon joined, and 
 .-^ome or one of them only have or has been found entitled 
 to relief the defendant, thou^fli unsuecessfiil, shall be en- 
 titled to his costs occasioned by so joining any person or 
 persons who has or have not been found entitled to relief, 
 unless the Court in disposing of the costs of the action 
 otherwise orders. J. A. llule Hi), part. 
 
 Same in effict as Kntc. K. 1.S7."), <). KI, r. 1, (1S,S;{, U. iL'K). wliiih was taken 
 from .s. 1!) of the C. L. 1'. Act of 1K52 : .see Day's C. L. 1'. Act. 
 
 In an action lii'oii<flit l)y two ijlaintitf.-* on separatecanses of action, jiul^riiiiiit 
 was ill fa\(iiir of the defendants ajriiiii'<t one plaintift' ami for the olln la'.'aiiist 
 tile difeiidants. (^ists were to aiiide the event of the actii'ti. It \Mis lic'ld tliat 
 the defendants were entitled to the costs occasioned liy joiniiiti the llllsu^•l'(•^<■ 
 fill pl.'iintitf iiiid that the succcssf'.il plaintiff w.-is entitled to the i;eiii lal custsnf 
 the action : J'tsnniiit <<iirt v. Itnirmii, 17 <i». 15. I). iVl't. 
 
 Wliei'e the |)laint iff succeeds ayainstone defendant and f:iils a;;aiiist aimthir. 
 tlie costs of the successful defeinhint must lie Iponie liy the philnl llf .unl iintli.v 
 the unsuccessful defendant : <'liilil \.St.i<iiiiiu,l^'\\. \) li:*: II (.'li. i>. Ni 
 
 1172. In case an action of the proper competence of a 
 County Court is brought in the High Court, or in ease an 
 action of the proper coniijeteiice of a J^ivision Court is 
 brought in the High Court, or in a County Court, and is 
 tried by jury, and the Judge or Court makes uo order 
 respecting the costs, the plaintiff shall recover only County 
 Court costs, or J)ivision Court costs, us the case may be, 
 and the defendant shall be entitled to tax his costs of suit 
 as between solicitor and client, and so much thereof as 
 exceeds the taxal)le c( sts of defence which would have been 
 incurred in the County Court or Division Court, shall, on 
 entering judgment, be set off and allowed by the Taxiuf^ 
 Officer against the plaintiff's County Com-t or Division 
 Court costs to be taxed, or against the costs to be taxed 
 and the amount of the verdict if it be necessary, and if the 
 
COSTH. 
 
 901 
 
 (I to tlic u-fiirral ciistsiif 
 
 amount of costs so sot off cxcffMls the amount of tlif i)lnin- Rule 1172. 
 titi"s vi'i'dict and taxed costs, the defendant shall l)e entitled 
 to I'xeciitiini hr the excess a}i;ainst tln^ plaintiff. See 
 U.S. 0. IWTT, c. 50, s. ;M7, and J. A. llule 51'^, ///w/ i><iii. 
 
 {(i) The event shall in sncii case be to recover cost? ;'''>" „, 
 accordin.n' to sncdi scale, subject to such rifj;lits of set-ot'f as .mu disu. 
 to costs, as ai'o herein mentioned. J. A. iUilc 512, lusl 
 
 P'irt. 
 
 Xd cnlT.-li.illdill'^- I'lll'^-. I!. 
 
 Tlii- //"'• aiiiill>'< to ca-iv's tricil liv jurv only. It ri'jii'Milucc-i tin- |)r.i('ti('" 
 iimlrr li. S. (I. |S7", (•. "lO, s. ;V17. iiiiil wns passcil to iitliiiii tln' coni iniifil 
 ,lp|i|ic:ltiull ot till' ( '. \j. r. Aut, s. ;tl7. Jlliont the :i|>lili(Mtioil of W llicli (|olll)ts 
 iii'd-.!, iis oriuiiial lli:/' IL'S (now 1170), diil not toiicli the (|iic»ti(.n of mmI'', unil 
 li.ul Ihcii lulil in ii'iriir/t V. /lni<//i n, ',\ App. i'us. '.Ml, to Ihim' icinalid idl 
 Statiilt > iM to iHi^ls : U'l'iililiiiid v. Tuif, 'M'. Ij. '\\ IL'L'. 
 
 lirfiii'c tlii-< /.'"■/', uiilc-'s till' .liidjfc made an ordiT as to costs, the plaititiff if 
 lie rci'iivi'i'.'d iniytliin'4' was I'lititli'd to i"ists of the ('oni't in which thr .-u'tion 
 was lir iiii;lit, " thr cviiit." wliii'h thccists aii. uniliT /•'"/' 1170, to follow, 
 l»'in^' ill his favoni' : si.|. /'k/'vu/iv v. TitiUnf. l' ( '. I'. I). )|!l; Mri-nrrni v. 
 S',;,tl,ri,!i. 11 I'. H.S7: 11' /n../i v. /,'-,'., /'/.■<. 11 I'. I!. 4lL'. follouinvr <-"nu'tt v. 
 Ili'itill''!/. ;{ A|i|i. (';i^. oil. 'I'hc |>rin('i|>l<' of tlii'sc cases niax still apply in all 
 action^ wiii'i'i' :i, I rilliiifV ainonnt is I'ccovi'rcil liut the action could not have liccii 
 hri'ii;,'lil, ill .III iiili'iioi' ('oiiil; it will also apply to ^Im' to ihc .-ucccssfiil paity 
 all i'ii~|s « liii'li MIC " cost>, in the cause," and so depending ii pun the cM'iit unless 
 tlii'.liid','!' otlii'rwisi' orders: see ('u/iiIiIik/ w Jlli ii/ii iin. 11 I'. |{. .M, where the 
 costs III' ,-1 tiTil at which till' jury disie^rei'd \wvi- ln-ld In lie taxalile to the 
 siicci'ssfiil party. 
 
 Xiiw, li'iuever, since thi- Hn'r ' the event ■ inch ides aiiiiiii;,''st other thiiij^'s the 
 si'alr nil which (M>!> lil.l\' lie ta\:llile : see alsn /^/i/r v. /;< iw/.s'/r/^, ISt^t, |5. | ). 
 •Hi: A,flnii:i\. Cih/ i>/'Loii'l,,,i. V2 \'. I!. M. The scale on which the plaint itfs 
 costs will he taxiilile, if no order is made liy the .Indjre, will 1m .i.-itof the lowest 
 C'lnii't ill which the action was capable of lieine- liroiiy^ht, and the defendant 
 will liavii the ri;4:iit to set-off the extra co.^ts iiicurreil liv him as in the /{iili 
 ini'litiiiiicil: sec Jr. /■i,n/ \. I'itch' r, 11 I'. U. W.l,. 
 
 Claiix' (r() of the A'"/'' delines in such ease the '"event " referred to in llnti' 
 117". 
 
 Tlii'/i'-'w (inly .'ijiplies ill cases within the proper competence of a County or 
 Uivisiuii Ciiiirt. In an action of lihel which cannot lie liioui'.ht in those 
 Ciiiits. if til,, plaintiff recAers anythiiifj, cists follow, and he c;innot lie 
 ili'|irivti| of them I'scrpt fiirj,'oiid cause: see Wilsui v. It 'In ,■,'.•.•, II I'. K. Ill' ; 
 11'' /'"'k'.v v. ''.„/,/,,'(•_>). 12 I'. |{. H7 : and the Court cannot looU liehiiid the 
 tindiiiv; nf the jury and deprive the plaintiff of costs on the oruund tli.il he was 
 niti'i'illv entitle'! 1 1 1',',; iver : /A., airl sc IIV.//// v. .s'/c/", l!) <>. H. I), at p. 
 3!tS. 
 
 For the purposes of the scale on wiiicli costs are to lie taxed the claiiii and 
 CiUliti'i--i.'l;nin are to he lre:ite(l as separate actions : see .•l//ei/' \. linlih, If^ •>'! 
 |i. IJ. 1). ."il:!, where a plaintiff recovcrine' uii his cl.-iim an amount within the 
 jiirisilii'tinii nf ;i ( Hi'.iiity Court recovere 1 costs on that foo'„in,'j:, Imt succeeding' 
 on tlu'defi.iidaiit's counter cLiiiii to an amount w itliin the llij^di ( 'ourt jiirisdic- 
 tiiiii lie recovered costs of his defeiK^e to the c miiti r-claini on t he llij^di Court 
 .'•calf, 
 
 III an action tried liy a jury where the defendant recovers on a. cminter-claim, 
 tlif I'dsj.; sliiiuld lir (111 the scale of the (!ourt in wliicdi the action is limuorht by 
 tjic jilaiutilf, unless the .liidjfc for g-ood cause mikcs a different order ; the fact 
 tiiattlie recovery is fur a sum within the jurisdiction of an inferior Court is not 
 
 <;?% 
 
 % 
 
902 
 
 COSTS. 
 
 % 
 
 
 ^. 
 
 Rule 1172. g(HKl cauHe for such an order ; FukU-i- v. Vkijfl, 13 P. K. HW. 'I'liis Unli «(.,.i,n 
 to (i iff HI' from liidv 121i), in th's rt'sj>ect. 
 Tli(^ jviriHtUction of tlio County Courts in defined in U. S. (). 1H,S7, c (: 
 
 HH. IH-2L'. 
 
 Wlicri' tlie titld to lanrl is in (pMwtion, tliou^h tlin amount rccovcicdlK' witlmi 
 the juriMliction of .1 County or Divinion Court, the plaintiff is (•iititlc<i tuciwtti 
 on tlif lligluTHcale, unlexH the cawe is one within Ai(?c 121'.t: Witrmnns. HmiU 
 12 P. H. (ilS. 
 
 Neither an action for use and occu|iation : h( e lir Crdir/nnl v. Sun 11, 17 Out. 
 74 ; nor an action for trespaHs to hind, netiessarily l)rinKH in qiicsticni tiic titli' 
 to land and HO oustn the jiu'isdiction of tiie Coinity nr division ("i)urt : Ildiln/ \ 
 niorhr, nC. L. J. !J!I ; J{i</,an/ni,n v. .Iinkina, 1(» P. K. 2!I2 : ncc i.mhm \ 
 .Spetti'jin; 12 Ont. App. 2()1 ; McNril v. l/<iimi>, 13 1'. K. 115. 
 
 Where the plaintiff'n title in denied on the pleadings, and he is ri'cuiJriKl at 
 the trial to |)rove it, the title to limd is brought in ipiestion : Wiiimiin v. Hroihi, 
 Kiij„<i : DdiKihrr v. Utile, Kl \\. i). 12 Feb., IKilO. 
 
 The County ("ourt has j\n'isdi('tion to investigate accounts and (■liiiiii> df 
 siiitors, however large, jirovided tiie anioinit sougiit to lie rcciivcriMl ducsiKit 
 exceed the sum prescribed by the Act : /'finu/t v. W'hilf, i;{ I', l{. Mil ; where, 
 therefore, a plaintiff claimed .*<lt»it.72 ivs a balance on transiu'tioii;. ((iniiin-iuiKl- 
 ing more than ."SKXM), and defen<lant counter-claimed for slIVJ,").?!, it whs lu'lil 
 that the plaintiff was entitled to costs on County Court scale : /'/. '["lie .Fudge 
 on an ap|)eal from the taxing officer seems to liave dealt witii the costs lui if 
 sitting at the trial, the case having Ix'en tried without a jury. 
 
 The plaintiff sued for 8228.20, the balance of a claim for .'*1«2«.20, and 
 obtained a v«'rtlict for 4*228.2(t. It wiis held that the amotmt was liipiidiitedliy 
 the act of the oarties within R. S. O. 1H77, c. 43, s. 1!», (2) ; and tiie iilaiiititf 
 without a Judge's certificate was entitled to Comity Ccmrt cnsts didv: 
 iJintun V. MrLmu, 10 P. H. 2ft5. Where the suit was to" recover " s27l'.03 the 
 return of moneys received by defendant Iwdonging to plaintiff, lieing the pm- 
 ceeds from sales of g(K>ds in plaintiff's shop, as follows ; '' it was iield that tlie 
 sum was not so ascertained, and the action wjvs not with the jurisdiction cif a 
 County Court : Ruhb v. Murray, 1(J Out. \\>V. 003. 
 
 Where the defendant had signed a writing in these words: "If anything 
 happens to me sudden, this is to insure my son .losejth (the iihiiiiliff), to take 
 •Slot) from his sister Hannah's share, to rejiay nionej' lent toliir; if 1 live till 
 this time next year I will settle it with him." This was held tn be a sufficient 
 ascertaining of the amount due by the signature of the defendant tn ixnnitof 
 the claim being recovered in a Division Court: Mokik v. Mnscn, 13 P. K. 12, 144. 
 
 Where an ivction was brought to recover <lamages for wrongf\dly refusing to 
 deliver up a promissory note for .^300 to the plaintiff, and the idaintitf recoverwl 
 S314, the amoimtof the note and interest, it was held that the action was within 
 the jurisdiction of the County Court: Jolmxon v. Ktiii/on, 13 P. K. 24. 
 
 A County Court however has no jurisdiction to give a jiidgment for an 
 amount within its jurisdiction, when it is arrived at not by any settlement or 
 statement of account between the parties, but as being the balanee (hie n|Kmii 
 dis])uted account, the total amount of which was beyond the jurisdietioii of the 
 Court: Shcr vooU v. C/inc, 17 Ont. 30. 
 
 Where the action is tried by a jury and the verdict is rendered for a sum 
 within the Division Court jurisdiction, the Judge may for good cause order 
 costs to be paid to the ])laintiff on the Division Court scale, and may dejirive 
 the defendant of any right of set-off: Lhrrnois v. Ihtihii, 12 P. K. ■"'-•">; 13 
 P. K. ()2; the prinisions of this Ridr only ajiply where the .iudge "makes lui 
 order " ; but unless good cause exists the Judge can make no such mdernor 
 any order, the costs must follow the event and lie taxalile on the scale applicable, 
 with the right of set-off in the ca.ses mentioned in this Jin/i' : ('ulliriilt \: 
 McKinhn, !) C. L. T. 100. 
 
 Tne jurisdiction of the Division Courts is defined in R. S. O. 188", cut, 
 88. 6!»-7!». 
 
COSTS. 
 
 903 
 
 W. Thin liulf Hcenn 
 
 U. S. O. l«H7,f. 47, 
 
 itrccovcii'dU' witliiii 
 iff is cutillcd ti'coHtii 
 (: W'ltriiiiinw Hrailii, 
 
 fiinl V. Siiifii, 17 Ont. 
 
 in (lucstinn the title 
 sic 111 Cuiirt : lldiliji V. 
 
 -II'J ; M'c <i idliitiii V. 
 115. 
 
 and lie is rcciuinfl at 
 ll'o/VHi»/i V. Hrtiihi, 
 
 'counts anil cliiiiiis of 
 1)»' M'covcn'd (liK's nut 
 
 i;{ v. H. M'.t; wiiere, 
 isactiipii.-. i(iiii|in'lun(i- 
 
 si;v_'r>.74, it was litid 
 ical<' : /''. 'Vhv .Iiidjjc 
 It witii tlif costs lis if 
 jury. 
 
 iiiii f(.r slS-JS.'jO, iiiul 
 milt was li(|Mi(l!itc(iliy 
 (2) ; anil tlic iiluiiitiif 
 ty Cnurt cnsts milv; 
 il rccnvcr " SL^'-'.llS t)ii' 
 laiiitiff, lifint; tlif lim- 
 it was iicld tiiut tilt' 
 ,h tiie jurisdictitm of a 
 
 words: "If anything 
 I {till- I'laiiiliff), tdtakc 
 nt tolii'i-; if I live till 
 .s lu'ld to lit ■ a sutlicii'iit 
 defendant tn jieniiitof 
 J/o.s<,s, 13 P. K. 12, 144. 
 
 ' wroiiKf'ilIy ref""'"? t" 
 1 tlie iilaintitf i-fciivcrfKl 
 ivt tlie action was within 
 fan, 13 P. K. L'4. 
 
 ive a jndi^ineiit fur an 
 )t 1)V any sfttlfiiit'iit iir 
 tlie'lialant'e ilueuiKma 
 (1 the jniisdictiirtiof till' 
 
 ; is rendered for a sum 
 
 i.y for (?ood cause order 
 scale, and may deprive 
 lilni, ]•_' P. H. 'ViV.lS 
 1' tlie.IuilKf "makes nii 
 make no sucli urdernor 
 i-ontliescaleaiililicable, 
 this Rill,-: Calhciitt v. 
 
 in K. S. O. 1887, e. 51, 
 
 liiaiiiu'tion in the lliKh Omirt for trespass to lands and removal of fixtures Rulsa 
 tiiH plaiiititf recovereil u verdict for ■'?")(», It was held that Division Court costs 1173-1176. 
 wfif taxahle to the i)laintitf and full ciiHti* to tho dofi-ndiuit : Hiiharditiin v. 
 Mkiiis, 10 P. R. 2!>2. 
 
 ] I7JI. The plaintiff in any action which is of the proper cimtH in 
 competence of a Division Court hut is hrought in a County i',','^eo,^."''' 
 Court shall not he entitled to full County Court costs, if j"!™,"' 
 judgment is recovered in such action h}' default for want ('<»"«•' 
 of an appearance or defence, or on the ground only of a i.. cmmty 
 comniiHsion for the taking of evidence out of the Province ^°"''" 
 haviiif;; been issued therein or necessary, whether judgment 
 be recovered by default or otherwise. II. S. 0. 1877, c. 50, 
 8.349. 
 
 1174. In every case in which judgment is entered with- coHtsin 
 out trial, or the decision of a Court or Judge, or order as J""/md'/aci> 
 to the costs, and where the amount of judgment, j>/-imr?|^j\^^i,'}^.V'*' 
 /'(jcic, appears to be within the jurisdiction of an inferior '>'",»t,f '"- 
 Court, the taxing officer shall not tax full costs of the High cou'rta 
 Court, without proof on affidavit to his satisfaction that the )][ieli" en-^*^' 
 action was properly instituted therein ; and if properly '"'t^iViai,'''' 
 within the jurisdiction of the County, or Division Court, '^'w to be 
 then the taxation shall be on the scale of fees in such Court. 
 J. A. Kule 511. 48 V. c. 13, s. 22. 
 
 Tills liiili would appear to apjily only where there has been no trial, not to 
 
 appear 
 las tieeii 
 
 a trial Imt no order nuide as to costs : see Andnum 
 n eases tried without a jury no costs are taxable 
 
 cases wiicre then 
 
 V. A..m/.i«, 12 P. H. 44; 
 
 witlitmt a decisitiii of a .ludpe in lie (fruit Wixtviii AdvcrtiKinij Co. v. Raincr, 
 
 !• P. K. 4!I4 ; and Rule 1172 is ap|ilicable in cases tried by jury. 
 
 Xi)st't-i)tf of costs (as under Itulf 1172) is contemplated by this Rule where the 
 plaintiff (,'ets only costs aceiu'ding to the County or Division Court scale: 
 .lH'/ni''.s V. Citi/i'if J.tiiidiiii, 12 P. K. 44. 
 
 Til iletfriniiie the proper scale of fees, it is the duty of the Taxing Officer to 
 liKik at till' pleadings, and if necessary to receive affidavits .so as to ascertain 
 the facts of the case: W'/iitf Sfiriiif/ Mi'irhiiic ('«. v. IMfnj, 10 P. R. ti4. 
 
 Wlu'i'i' a verdict by consent for 81 to be altei'itd according to the result of a 
 refei'eiH'f iigreed on, costs to abide the event, it was held that it was a judgnit^ut 
 witlumt a trial and within this Ralv : .1 iidivw.s v. Cifi/ <;/' Lonibm, 12 P. R. 44. 
 
 1175. When the plaintiff after non-appearance to aNon-ap- 
 writnot specially indorsed delivers particulars of his claim ^',^jj^eqi^eiit 
 under Rule 707, he shall not be entitled to the costs of the pi'rticu- 
 <^tatement of the particulars of his claim, unless the taxing 
 officer is satisfied that there was good reason for not 
 specially indorsing the writ, so as to render unnecessary 
 filing and serving such statement. J. A. Rules 74, 407. 
 
 See note to Rnh' 707. 
 
 33, 
 
» I 
 
 T 
 
 IMAGE EVALUATIOr^ 
 TEST TARGET {MT-3) 
 
 1.0 
 
 I.I 
 
 i^ IIIIIM 
 
 2.0 
 
 1.8 
 
 L25 il.4 IIIIII.6 
 
 V 
 
 <^ 
 
 /}. 
 
 
 . # ^ / 
 
 Photographic 
 
 Sciences 
 
 Corporation 
 
 23 WEST MAIN STREET 
 
 WEBSTER, N.Y. 14580 
 
 (716) 872-4503 
 
'lip M:> 
 
 '*y if. 
 
904 
 
 COSTS. 
 
 %m 
 
 1 
 
 %* 
 
 ■1 
 
 %. 
 
 1 
 
 ^^ 
 
 • n 
 
 ^^ 
 
 
 ■a 
 
 1 
 
 ^. 
 
 ?i7^fiii78 "'T'O. Wliere several actions are brought on one bond, 
 
 wiiero scv. I'ecogni/.ance, promissory note, bill of exchange, or other 
 
 oral iiutidiis instrument, or where several actions are brought !i"ain«t 
 
 etc. ' the maker and indorser of a note, or against tli(Mh'a\ver 
 
 acceptor or indorser of a Itill of exchange, there shall be 
 
 collected or recovered from the defendant the costs taxed 
 
 in one action onl}' at the election of the plaintiff, and the 
 
 actual disbursements only in the other actions, unless the 
 
 Court otherwis" orders ; but this provision shall not extend 
 
 to anv interlocutorv costs in the progress of an action. 
 
 E. S.O. 1877, c. 50, s. 350. 
 
 Costs of 
 prelimin- 
 ary oxaiii- 
 inatiou. 
 
 1177. The costs of every examination of parties or of 
 officers of corporations before the trial, or otherwise than 
 at the trial of an action, shall he costs in the cause, but 
 the Court or Judge in adjusting the costs of the action 
 shall at the instance of any party inquire, or cause iuquiiv 
 to be made, into the propriety of having made such exam- 
 ination ; and if it is the opinion of the Court or Judge, or 
 the taxing officer, as the case may be, that such examina- 
 tion has been had unreasonably, vexatiously, or at unneces- 
 sary length, the costs occasioned by the examination 
 shall be borne in whole or in part by the party in fault. 
 The taxing officer may make such inquiry without any 
 direction. J. A. Uule 220. 
 
 The lirst iiart of this Rule iiiakiiiK the costs, costs in tiii'cansf \vM>ni\vauil 
 suiKTscdcd i{. S. (). c. .'")0, s. U!7. TIk' riMiiaimlcr of tlic A'uA' is tin- saiiii' in 
 principli' as tiic \\\\\i. H. IS7."). O. .'U, r. 2, varying cliit'tly l>y rcftrrinn' to the 
 examination, instead of rt'fci'nn^r to inti-rrogatorifs, l)y which tiic fxaiiiinatiou 
 is taken nnder the Kiiglisii ))ractice. 
 
 See observations of Ferguson, .T., as to examinations for disenvcrv, 21 
 C. J.. .1. tlli. 
 
 Sum in 1 17^». Where the Court, or Judge, or officer exercising 
 
 ie°aii"weii..juris(liction in Chambers or the Master deems it proper to 
 award costs to either party, the judgment or order may 
 direct payment of a sum in gross in lieu of taxed costs, to 
 be fixed by himself or the officer who settles the order, and 
 direct bv and to whom such sum in gross is to be paid. 
 See Q\\y. 0. 225, 304, 305, 564, 585, 58(5. 
 
 In actions for the administration of the estate of a (h'ceased iier-nn. iie posts 
 Hhould he allowi'd to creditors whose claims are rendered |nirsiiant to Miuiiiver- 
 tisement, except wiien formal proof is also recpiiieil ;nid given : see linli il7(l, 
 I'l scf/., claimants attemiiting to prove claims as creditors, or a- heirs at law, or 
 next of kin, who fail to estai>lish their claim, may lie ordered to p:iy tlie costs 
 occasioned to tiie opposite party by their claim, in case of a deticieucy of assets 
 
COSTS. 
 
 iJ05 
 
 ;;lamis ;iri' to lie nidcd to tlirir dclits 
 
 iiiiil |iiUil pni- 
 
 broiio-lit iif^ainst 
 
 tlipciistsiit'crcdit"!'- lU'ovitiH-clam .... - . 
 
 ])()rtiiiii;itt'l,V, mid «uoi> costs arc nut, entitled tobe paid in prioi-ity to lliedelits : 
 J{i] .EtiM iiiJiuriiiiir Ci., 17 (Ir. KiO; Mnrsliciid v. /l,fiir''i/.^, •_>! l>eav. (i,HS ; 
 CanluiMV. Xi-c/i, 2(1 IJeav. l'(i(i, Moi-i^'an and Uavy, \>]>. lHO-1. 
 
 Tn :in action for dower ii lump sum for costs was awarded to tiie plaintitt' : 
 7^/.^.( \. /'"'W', 4()nt. ;5:r), 844. 
 
 I'liiliT tiiis Ri'li' tlie Court may award aluni|(sinn, not only on interlocutory 
 ;lii|ili(t;itiiins, Imt also for the fifeneral costs of tlie cause, or may award costs 
 accnnliiiL,' to the lower scale, even in cases which wt'.vv heyoud the former e(|uit- 
 alilivjiivi^dictiou of County Courts : I'nliitr,- \. I'u.stlc, {(!liy.) l)efore full Court, 
 ;tli i>'C. KST''^ ; i^ce lie},', ijil). of tliatdate. 
 
 The jnrfsdiction of the County Court was exchided in m;in.\' cases, where, 
 iii'VcrtliehNS, the amo\nit in controversy was very insij^'uilicant : see note to 
 A'"'' l-l'.). I'ndcr the jxiwers conferred hy this /i"/i the ( 'ourt may award 
 C(ist<iin the lower scale, even in cases not within the pn. visions of llnlr 121i). 
 
 Rules 
 1179-1181. 
 
 Court may 
 iiAvin-il 
 Idwur scale 
 costs, in a 
 case not 
 formerly 
 witliiu (J.C. 
 jurisdie- 
 tiiin. 
 
 II7W. AMieve the oiiicial guardian or otbcr "uavdian ot^o^t^,?! 
 an intanf., lunatic, or person ot unsound mind, is entitled 
 to costs, or agaijist any party to an action or proceeding, 
 the Court or Judge may order the successful adult party, if 
 any, to pay such costs and add them to his own. 
 
 1 the c'ause was new aiiil 
 
 he /,'((/.• is the saini' in 
 
 'fly hy referrinit tu the 
 
 which the cxauiinatidii 
 
 tions for disiiovery, 21 
 
 ll.SO. The costs of any application for an attachment 
 of (iL'l)ts, and of any proceedings arising from, or incidental 
 to, siioh application, including examination of the debtor 
 or other person liable to examination,' shall be in tlie dis- 
 cretion of the Court or a Judge. See J. A. Paile 878. 
 
 This is to the same effect as the En;,'. R. IS?."), O. A\ r. 10 (TSS8, K. (il2), aiid 
 is the simii' in substance as H. S. ( ). 1S77, c. oO, s. 821, except the words in 
 liraeki'ts, which are not in the Kiii,'lish i{ulc or the Statute. Without thcni it 
 was held in '■'//''.'/ v, Riih, 7 I'. \\. 81it, that an order for the payment of the 
 costs (if the debtor's examination (^luld not be made on an application for that 
 |mi'|«isc', thouifh it niiylit pershaps be made by way of punishment, on an ai)pli- 
 citiiiii to cnnimit. 
 
 H^il. Wiiere the costs of one defendant ought to be 
 paid hy another defendant, the Court may order payment 
 to be made by the one defendant to the other directly ; and 
 it is not to be necessary to order i/avment through the 
 plaintitf. Chy. 0. BIO. 
 
 I'liiler It'llr 11711 the costs of, and incident to, all [iroceei lines, are in thedis- 
 CTi'tioii (if the Court, but a trustee, niortijaKee, or other jierson entitled liy the 
 lull's (if K(|uity to costs out of a (larticular estate, or fund, cannot be deprived 
 thcri'df. 
 
 A (Icfcndant is usually liable to |iay costs to his co-defendant, when the latter 
 is an iniiiicent party, and is necessarily brought into the litit,'atii>ji in order to 
 iiiiilih' tlu plaiutitF toobtain complete relief in the action : see MiLiini v. (iraiit, 
 ■JKJr. 7ti. Formerly at Law there was no practi(^e, autiioriziiiH: ii judtfuient to 
 Ih' Kivcii ajfainst a (lefendant, for the payment of thi^ costs of a co-defendant 
 litliir (li redly or indirectly : and even m K(iuity, jirior to Chy. Ord. 81U, from 
 which this Rule is taken, the Court of Chancery was accustomed only to order 
 Bucli costs to be paid by the circuitous process of directinf,' the plaintiff to pay 
 
 ('o>ts of 
 
 attnchiug 
 
 debts. 
 
 Costs may 
 1)0 ordered 
 to he paid 
 liy one de- 
 fendant to 
 another. 
 
 Costa in 
 discretion 
 of Court. 
 
 Costs be- 
 tween co- 
 defou- 
 dants. 
 
 '=535 
 
•: ^ 
 
 
 906 
 
 COSTS. 
 
 Rules 
 1182-118S. 
 
 Costs of H 
 C. case in 
 C. C. 
 
 them, and :i<l(l tlinni to lii« own costs. In interpli'iult-r pmot'i^dinjrs l)y sheriffs 
 the costs of the sheriff are to he inchuh'd in the costs of the sucuessfu) nartv 
 under Ride ll.W. ' 
 
 The Court has ordered a defendant to pay a co-defendant's costs, cvfii thdUffli 
 the action was dismissed : Cliinrh v. t'lillcr, 3 Ont. 417, Imt a suuceHsful 
 defendant cannot he ordered to i)ay the phiintiff's costs ; Mi/r/nll v. Vnnilii.ien 
 14 Ont. App. i")17 ; W'ilU v. ( „-iui, /!/., (ioO. Xor can the phiiiitiff li,- (inlerwi 
 to pay the costs of a third pa t; l)rougiit in by the defen(hint : Tdm/iiiiim v 
 Xiu-tiii'i-H Ri/. <'()., 11 I'. R. 41:1'; Witlunn v. \'iiiu\ 44 L. T. X. S. 7!S; hut tlu- 
 defendant may be ordered to i)ay tiiem : Ditwuon v. Shvphcnl, 42 L. T. N, S. 
 (ill ; and such an order niav be refused : TovilinHun v, Ni'iiluu-n Rii, Qi 11 
 P. K. 52(i. 
 
 Wiien a jjlaintiff .succeeds against one defendant and fails against another, 
 the costs of tlie snccessfid defendant must bti Iwrneby tiie plaintiff ami nut l)v 
 tlie unsuccessfid defen(huit : C/ii/i/ v. Sli'iiiiiii;/, 7 Ch. 1). 413; 11 Ch. I). 82. 
 The Court may order a tliird party tt) pay costs to the defendant inchuhiifithow 
 which the defendant has been ordered to pay tiie plaintiff : J/di-iiIni v. ( 'uhluvll 
 4.-) L. T. N S. 781. 
 
 1 1S3. The costs on all proceedings where a High Court 
 case is tried in a County Court or a County Court case in 
 the High Court, shall be the usual costs of such cases in 
 the Court in which the action was brought. R. S. 0. 1877, 
 c. 49, s. 43. 
 
 costaof 11^3. The disbursements incurred in any cause, mat- 
 
 snortnand . ,..,,.. . . ., ^, p ,, 
 
 notes, to be ter or proceeding in obtaining copies ot the evidence tortile 
 
 cause!" ^'^'^ purpose of moviug against a judgment or for a new trial, 
 
 shall, unless the Court otherwise orders, be costs in the 
 
 cause to the party obtaining and paying for the same. 
 
 C. L. Rules lOth March, 1876, 3. 
 
 Jo'Vt'ofiimv "^'** I» cases not otherwise provided for, the Taxing 
 reasonable Officer may in any cause, matter, or other proceeding, allow 
 shorthand a reasonable sum for the expense of a short-hand writer, on 
 ca^sie's not ^^^^ certificate of the Judge before whom the examination 
 rovided of any witness or witnesses in any such cause, matter, or 
 
 other proceeding takes place. C. L. Rules 10th March, 
 
 1876, 7. 
 
 I 
 
 [or. 
 
 Official 
 Court; 
 to engage a stenographer. 
 
 if tlie 
 
 icial stenographers are now provided for all the ordinary sittings o 
 ;s. This Jiii/r ai)plies when it becomes necessary for the parties s[)ecially 
 
 Appiica- 11^5. No application for costs, in an alimony action, is 
 terimcosts, to be made until the time for delivering the defence has 
 may"be expired, and no costs shall be ordered to be paid de die in 
 made. jjg,,^ })y \^\^q defendant beyond the amount of the cash dis- 
 bursements actually and properlv made by the plaintiff's 
 solicitor. R. S. 0. 1877, c. 40, s.' 47 ; Chy. 0. 489. 
 
Il'l 
 
 "-•('('(liiiKs liy sheriffs, 
 sucfi'ssful party 
 
 tl 
 
 \t' 
 
 nt's costs, I'vcii tlioHRli 
 417, Imt a successful 
 Milclii'll V. \'ti)iitiis(>n^ 
 hi' ))laiiitifF hv iirdcrwl 
 ciulaiit : Tmiiliiisiin v, 
 r. X. S. 71H; Imttlie 
 tjth,;,/, i-l h. T. N. S. 
 . Ni'iilirni Jill. ('»., 11 
 
 1 fails ajj:aiiist aniitiiw, 
 he phiintitf and not bv 
 1). 413: 11 Cli. I). S'i 
 lulaiit inclndinfjtiiose 
 f : llui-iilni V. t'lililiivU, 
 
 lere a High Court 
 
 nty Court case in 
 
 of such cases in 
 
 t. R. S. 0. 1877, 
 
 I any cause, mat- 
 le evidence for the 
 )r for a new trial, 
 I, be costa in the 
 ng for the same. 
 
 ■d for, the Taxing 
 ■ proceeding, allow 
 irt-liand writer, on 
 ii the examination 
 cause, matter, or 
 ules 10th March, 
 
 ordinary sittings of the 
 T for the parties specially 
 
 I alimony action, is 
 g the defence has 
 be paid deiUein 
 nt of the cash dis- 
 :. by the plaintiff's 
 :!hv. 0. 489. 
 
 COSTS. 907 
 
 The cash flisbursPinents do not include fees jiaid to aprents for solicitors' ser- Rules 
 vices, Imt they do the fees to coviisel, even when the solicitor or his ])artner is 1186,1187. 
 theciiunsel : Afi'i/iini v. Mni/nni, 10 P. K. 570 ; llndllei/ v. /inti/li//, 21 C. L. J. 
 141 ; 10 P. P. 571 ; and see hii/nim v. fiiifram, 10 P. R. 5(»0 ; hut in Lii/nudev. 
 Lnliniili; 11 P. K. 143, the i)aynieiit of a immjyectivefee tocounsel wiio was also 
 the |)laintiff's solicitor was refused. Where a cause was entered for trial it was 
 ordered to stand over, until the defendant had i).aid to the plaintiff a sum suffi- 
 cient to pay plaintiff's witnesses : /JiiJ/'ci/ v. Hn/ri/, 7 P. R. 137. 
 
 In Otya.H V. Otwiifi, .5!) L. T. N. S. 153 ; 13 P. I). 141, a dcnibt was cxpressi'd 
 as to ^vliether the mles respecting a wife's costs in litigation with her husband 
 were affected by the Married Women's Property Act. 
 
 1186. In case the plaintiff in an alimony action fails Nor any 
 to obtain a judgment for alimony, no costs beyond thefemiantbe- 
 amount of the cash disbursements actually and properly a""burse. 
 made by the plaintiffs solicitor, shall be ordered to be paid ^J,',^^\*^ 
 by the defendant. R. S. 0. 1877, c. 40, s. 48. piaintiir 
 
 fails. 
 When a iilaiiitiff jioiilnitr lite returned to her husband, on the ix'tition of her 
 siilicitor the defendant was ordered to |>ay the plaintiff's costs between solicitor 
 and client : Laimn-d v. Lcnnanl, !l P. R. 450 ; M<ii>ri' v. .!/<»';•,■, 10 P. R. 284 ; 
 3)0. L. .1. 2!)1 ; but in niiKjnm' v. Bini/ron; 10 1'. R. 2il!t, .5!ttJ ; ]^-otidfoot. .T. 
 refused to follow those cases and his decision was subse(|uentlv affirmed by the 
 Divisional Court : and see Tlnmiimiti v. TIkhiiji.sidi, 57 L. T. X. S. 374 ; but see 
 Fi'i-ris V. Fn-ris, 7 Ont. 4!M) ; Thr Frie,l(lnii-;t, 10 P. I). 112 ; RnU' 1170. As to 
 what come within the term 'cash disbnrsements ' see Rule 1183, note. 
 
 1187* In all actions or proceedings instituted for admin- S°'"J|J]'k 
 istration, or partition, or administration and partition, allowed in 
 unless otherwise ordered by the Court or a Judge, instead taxed'costs 
 of the costs being allowed according to the tariff, each per- i|,\*^'JJ{,\^" 
 son properly represented by a solicitor, and entitled to costs anci par- 
 out of the estate, — other than creditors not parties to the 
 action or proceeding — shall be entitled to his actual dis- 
 bursements in the action or proceeding, not including 
 counsel fees, and there shall be allowed for the other costs 
 of the suit payable out of the estate, a commission on the 
 amount realized, or on the value of the property partitioned 
 in the action or proceeding, which commission shall be 
 apportioned amongst the persons entitled to costs, as the 
 Judge or Master thinks proper. Such commission shall be 
 as follows : 
 
 On sums not exceeding $500 20 per cent. 
 
 for every additional $100 up to $1,500 5 " 
 
 for every additional $100 up to $4,000 3" 
 
 for every additional $1,000 up to $10,000. 2i" 
 
 for every additional $1,000 1 " 
 
 and such remuneration shall be in lieu of all fees, whether 
 between "party and party," "as between solicitor and 
 client," or "between solicitor and client." Chy. 0. 643. 
 
908 
 
 COSTS. 
 
 XA 
 
 ":>ji. 
 
 T^ 
 
 Rule 118?. 
 
 Coniiiii^- 
 sioii ill lieu 
 
 of CllSt'i, 
 wlio Cll- 
 
 titlcii r.i 
 sliari; in. 
 
 Moiln of 
 
 apiiortion- 
 
 uieut. 
 
 Oil wlint 
 sum li; 1)0 
 estiinatuil. 
 
 'I'll iiiniission payalili' umlci' tlii-t A'«A' is divisililc only iH'twccii tlmsp wlm 
 
 arc striftly iiartics t<i tlic action, pi'o|HTly rciircscnti'd l>v a f^olicitur, unil 
 ciititli'il to costs out of the I'statc, Persons not oriyinallx' made |iai'tii'< tu tliM 
 action, Imt, served with a<'o|)y of tlie jud^'iiient iiiuler Uiih li'J'J, are imttlu'r. iv 
 made |iai'ties to the action, lint are merely eiialiled to attend the iircicicil, iri 
 and are liouiid thereliy as thouKii they were actually parties; Kiii\]\Mis, 
 F.ihili^ji, \1 (i-r. Itl. In a suit l>y a resiiluary lei/atees, the plaint itf siitKviciitlv 
 represents the other residuary lee-atees. and they are not entitled as of coiirv. 
 to co-its out of the estate occasioned liy their appearinj,'' liy another snlipitoi' in 
 the .\r:i-.ter's office : llm-hiini V. Um-jidm. \~ (Jr. ;iS(). Creditors who are ncithi-r 
 plaintiffs, nor defendants, are also excluded from participation in the Ciiiiiiiiiw- 
 sioii, their costs , are disposed of ,as formerly. The commission is to cuvcr Imtli 
 the S(ilicitors" fees, and the fees to cciunsel. It is of course not iMiciKlcii to 
 cover costs orderi'd to l>e paid liy one party to another. It is intended topdvtr 
 only costs payalile out of the estate. Costs are to lie ajiportioned iiikIit tliis 
 Itiili in pro))ortion to the work done liy, and resjionsihility inipeseil dn. the 
 solicitors eii'-'aved : /A.iA/e v. (i'lpi', S V.]{. SSH ; C.i m i,l„'l} \\ ('miiiihill^ii, \\ }{. 
 lo'.l; lliC. Tj. .1. 1(1. The worl< (lone in the blaster's office is nut alone to lie 
 coii'.(idei-i.il in makin,^' the app"rtioiinient of the commission: ''"/«i,v-,( v. 
 /.'/"'. '.I V. U. 3<l4. The -■* ster should also consider the ciivuiii<tiii;cfs 
 under wliii'h the action is hr ,ht, when the judnnient has lieen prnimmu'cil 
 by hiiiHelf, and should not award commission to parties who oiij,'iit tn bo 
 deprived of. Ill' oniered to (lav, costs. In ,'i-scertaiiiiiiH' the cominissiim, if the 
 estate lia-^ lieen sold suhject to a liiorti,'aL;-e, the amount of the mort'.'apc is nut ti) 
 he included as part of the "aniount reali/.ed" : /,'.■ M>-r,-i/, .][ri',,l/ v. MrCnll^ 
 S I*, i;. 4SI) ; hut in /.''■ n,:.!!;!, /Ir I'-ii v. Iln.vn, 1!( C. L. .1. 'M" , it was held tlnit 
 the coiumi-^sion is to lie coin|iiited on the total aniount accounted for, ami nut 
 lil"relv on the lialance found in the accounting' parties' liand> : and see A'c I'mll, 
 W,-i iht V. Wlnl<; !) I>. H. 117. 
 
 Ordinaril.v no costs will ln' allowed in addition to the coniiuissidii and 
 (lisliurs,'nients : It- h'h ur'i, Flrui-i v. }''liiir'(. !) I'. It. S7 ; and the (.'oiirtrefiisfd 
 to yive taxed costs when the estate w.as larj^e, hut insolvent ; III' Slnrhlni 
 .l,///e.s V. /fnr.n; 10 1'. I!. L':)!! ; 1>() (). L. .1. VX\. The .Master has no iiewvrto 
 award taxed costs under this A'/'/r.- a .rud;;e of the Ilii,'h Court alone Inis that 
 j.ower: ll< ,ulrirl.:s v. //i>i'/rir/,s, 1,S |>. If. 7!). 
 
 Where the .Master finds, in any administration .action conuneiicid before 
 himself, that ajiy of the parties to the ac'tion should iiay the uliole, or iiny 
 part, of the costs of the action, instead of their lieiiie' lioriie hy the i-itatf, it 
 would seem that he should so direct ; tlii/i' !l7."i P>ut in such a cr.se it wiiuld 
 he convenient also to a)iportion the commission, and ascertain the disliiirsf- 
 niellts pay.lhle out of the estate, ill CiUse the costs ordered to he paid hy any ef 
 the parties persr,n.'illy, could not lie recovered from them. 
 
 AVhere the jiriiicipal part of the costs of an action are ordered to lie paid 
 personally liy one or more of the parties, and the costs of only a small |iro|Kir- 
 tioii of the work done, are charu'eahle ajjainst the estate, it does not appear that 
 in su(di a. case the full amount of the coniniission here provided would he pay- 
 alile, and the )i<iwer reserved to the Jud^re to make other order would pmhalily 
 he exercised. Cases niif,dit arise where from speci.-d circunistances, the comiui-i- 
 sion her,' provided would he clearly inadeipiate, and in such cases too it wdiild 
 lie possilile that the iiower to make other order as to the costs would hee.xt-r- 
 cised. 
 
 .An a'.;-ent emploved hv a jirincipal .solicitor who is paid by coiuiiiissiiin, i* 
 lialde to have his bill taxed : Jl,' lillmilioi. .H i». K. .'i(i(>. 
 
 Costs of nc- II.S.H. AVhen two or more actions or proceedings are 
 cessliriiy" institutcd for administration, or partition, or sale, the Jiulsic 
 may i'>«<iis- ^^''i.V) ^^^ 1"^ discretion, disallow all or any of tlie costs of 
 aiiowoa. jij^y auction or proceeding which in his opinion has been 
 unnecessarily prosecuted ; where any one of the parties, 
 
 Whoro 
 taxeil costs 
 allowed in 
 lieuof coiii- 
 liiissiou. 
 
COSTS. 
 
 009 
 
 iiily liftu'i'cii those will, 
 ('(1 l>v a solicitiir, iiivl 
 lly iiKidc purtii's tn till.' 
 ///( IVJl', iivc imttlii'''- ly 
 .'itti'iiil till' iiriifird, KS| 
 lly |iiuti(-i : liii'iUxl, V, 
 the plaiiitilf .siitK'.'ii'iitlv 
 (it I'Utitli'il ils of comse 
 f liy iiiiotlicr Milicitnr in 
 ■(■(litnrs wliii aiT iiiitliir 
 cipiitidii ill the coiiniii<- 
 iiiissidii is tn cover liDtli 
 cimrsc iKit inti'Milril 'o 
 It is iiiti'iidi'd tiioovir 
 Mpiiiivtinni'il iukU'I' this 
 iiliilitv iin]ii'Si'(l mi, thi' 
 '"■// v' fV(«/y-/-(7/,8R K, 
 iitlicc is not alone to lit' 
 niiiissiim ; 'V/,h,/'..« v. 
 idcr the '-'ircmii'<tiii;cfs 
 it liiis lii'cii iirojioiiucefl 
 ii'tics wild imi,dit to lie 
 : the c'duimissioii, if the 
 if the iiidi'tiiaffe is not to 
 
 ■■<■•■//. .^[,■(•nll V. .1/Wo//, 
 
 . d. .S(i7. it was held tliiit 
 iiocduiitcd for, and nut 
 hands; and see A'l' /.'"'', 
 
 Id the cdniiiiission ami 
 
 ■ ; and tin' (.'mirt refnseil. 
 iiisdhcnt ; Jii' Sliirliliri 
 
 Master lias no jinwei' to 
 i^'li Cduvt aldiie has that 
 
 tidii (,'dinineiieed hefDiv 
 pay till' whole, Of any 
 
 ■ hdnic by the estate, it 
 in siicli a. case it would 
 ascertain the dishnrse- 
 
 red to lit' iiaid liy any i if 
 :'m. 
 
 I are ordered to he )iai(l 
 < of only a small iirojior- 
 (', it dues not appear tli;it 
 ' pnividcd would lie ]iay- 
 ler order would proliahty 
 eunistances, the eoniniis- 
 n sncli cases too itwmiLl 
 tlie cdsts would beexer- 
 
 ; liaid by coiuiiiission, i^ 
 
 r proceedings are 
 1,01- sale, the Judge 
 ny of the costs of 
 opinion has been 
 )ne of the parties, 
 
 constituting a chiss formed by a Master for represontatiou fj^oo^^igo 
 in his oflice by one solicitor, insists on being represented ,.^,.,V„. 
 ))v 11 different solicitor, such iiarty is i)ersonaily to pay the ;-''■''"-"" 
 costs of his own solicitor of and relating to tlu; jjroceedings i.icseiitcd 
 before the Master, with respect to which su(di nomination c,?,t"s.'.iioi-' 
 has Ijeen made, and all such further costs as are occasioncti |.',',l^/J',l.'|!'iy. 
 to any of the parties by his being re[)resented by a diflerent ""'""^''1 
 solicitor from the solicitor so nominated. Chy. 0, 218, and " ' '^' 
 
 solicitor 
 
 Costs, nil- 
 neeessiiry, 
 not to lie 
 allowed. 
 
 I'liiler this /;»/r the wlidle costs of an action may be disalluwed if it liaxi 
 liieii ciinnienced, or |irdsecuted, unnecessarily, and not mils' the costs of tin 
 |ilaiiitili' lii'.t those of defendants as well ; the latter liaxiii^'' power under lii'ii 
 ',)!•(( to prevent the jiro.secutioii of more than iine suit. 
 
 A jiarty unnecessarily eniployiiiK ii sejiarate solicitor wcnild nut be entitkil 
 to jiarticipate in the connni.ssion referred to in >'!ii/r ]]S7. 
 
 Under J'lih ■•" the Master has pdwer to classify the ]iarties, and require tlie 
 par'ies constituting' each or any class tn be represemi'd by the same solicitor, 
 iind where he aiil.oints a solicitor to act for a class, all tlie members of that 
 class are bound by tlu^ acts of the solicitor so appointed, and cannot repudiate 
 them unless they have refused to be .so represented and have apjiointed a 
 njiarate solicitoi-; Jir McCi'iini'U, ^ Cli. (.'h. 4l!."l ]'>ut where a .solicitor was 
 appointed i:r /niitf to represent creditors, it was held that the .stdicitor could not 
 recover costs iiKidnst creditors who had iidt iirovcd their idaims and who had 
 nil notice of his aiipointmeiit : 7i'c Mmili illi, Mrrc/nifl.s linnl, v. Mniilcilli, 12 
 P. K. L'SiS; 23 C. L. .]. 415. 
 
 After the aiipointnient of a solicitor to act for a class, the separate Cdsts of 
 any iiieiuber of that class, siibsec|uently incurred, will not ordinarily be allowed 
 against the e.state under administration : lie ^Ktn" I/ini'miicr Co., 17 (>r. KiO. 
 
 The ]\laster .should not aitpoint a separate .solicitor for a class already suffi- 
 ciently )•' presented by the plaintiff ; and where the plaintiif /n iim'i hicir rv\)W- 
 sents ' ee Uuh 320) the class, if the Master appoint a sejiarate solicitor he 
 shijii)J state his reason for .so doing in hi.s report : Onrham v. (Inrhum, 17 Gr. 
 3S(i. 
 
 IIH!). When anything in the course of an action or costs of 
 reference which ought to have been admitted, has not been "hig!^'^'"^'" 
 admitted, the party who neglected or refused to make the 
 admission may be ordered to pay the costs occasioned by 
 his neglect or refusal. See Chy. 0. 284. J. A. Eule 163.' 
 
 Sm' Eiitf. H. 1875, (). 22, r. 4 (]S,S3, U. 242). 
 
 riie blaster has jurisdiction to make the order as regards proceedings jiend- 
 iiij; iiefore him : see Rule 1170. 
 
 /i'"//'4()0 re(iuires each jiarty to admit such of the material allegations in the 
 pleadingof the opjiosite [larty as are true. 
 
 ll!>0. No costs of proving a document shall be allowed ^^'otice to 
 unless a notice to admit has been given under Rule 617, 
 except when the omission to give notice is a saving of 
 
 expense. 
 
 
 
 
 
 ii 
 
 
 
 k 
 
 ..jJiL 
 
 m 
 
 ££, 
 
910 
 
 COSTS. 
 
 fm-1193 "^i. The costs of an application to extend the time for 
 Costs of taking any proceeding shall, in the absence of an order by 
 for exteu"" *^® Court or a Judge directing by whom they are to be 
 sioiiof paid, be in the discretion of the taxing officer. J. A. Rule 
 463. 
 
 Same uh Ping. K., April, 1880, R. (15; 1883, O. (55, r. 27 (24). 
 
 tune. 
 
 Certain re- 
 ferences or 
 
 1103. In actions in the High Court of Justice no refer- 
 
 examina- ence or examination for the purpose of discoverv 
 
 tions not to 
 
 or 
 
 tions nut lo . ,. j. ••■ ijii. \ • ^ p , 
 
 be before exammation 01 a judgment debtor, on which fees maybe 
 
 dering"^ pa.yable otherwise than in law stamps, shall be taken before 
 
 same. the Judge of the County Court, or local Judge of the High 
 
 Court, or Local Master being also a Judge of the County 
 
 Court, by whom the order or appointment for such reference 
 
 or examination has been made. 
 
 (a) References in administration and partition matters 
 under these Rules, and other like references in mortgage 
 actions are excepted from the operation of this Rule. 
 J. A. Rule 549. 
 
 -.'i^ 
 
 Tender of 
 costs, on 
 service of 
 petition. 
 
 1193. Where a petition in any action or matter is served, 
 and notice is given to the party served that in case of his 
 appearance in Court his costs will be objected to, and 
 accompanied by a tender of costs for perusing the same, 
 the amount to be tendered shall be $5. The party making 
 the payment shall be allowed the same in his costs, pro- 
 vided the service wao proper, but not otherwise ; but this 
 Rule is without prejudice to the rights of either party to 
 costs, or to object to costs where no such tender is made, 
 or where the Court or Judge shall consider the party 
 entitled, notwithstanding such notice or tender, to appear 
 in Court. J. A. Rule 434. 
 
 This Rule oorrosponds with the first part of the Eng. R., Aug. 12, 1875, 
 "Costs," R. 17; 1883, O. ((5, r. 27 (1!)), except that the hitter is confined to the 
 Chy. Div., and the amount to be tendered is different. 
 
 This Rn/r only ai)plies in the case of a petition. 
 
 Where the procedure iK)inted out by this Rule has not been followed the 
 |)arty served will be entitled to attend, and may \m allowed taxed costs: 
 (JaAlni'i- V. liiirncsK, 13 P. R. 2.50; and see Rule 11!)4. 
 
 In Re Siithiti, 21 Ch. 1). 855, tn;stees respondents to a petition inuler W'' 
 Triislce Ri-lirf .\<i, who iiad been tendered costs under the correspondhig Eng- 
 lish Rule, were refused costs of a])i)earingius their apiiearance was not lu'cessary 
 to give the Court information. In Re Knylis/i's Setllemenl, GO L. T. X. H. 44, a 
 trustee was allowed costs ; »io tender of a sum for costs was there nuide. I" 
 Re Vardim's Trusts, 33 \V. R. 2!)7, executors were given costs notwithstanding 
 the accei)tance of cfte tender. 
 
COSTS 
 
 911 
 
 III S'liii'"'' V. Martin, W. X. 1KH2, 113, iii:>rtj,'ii),'ce.-i of interests uf pfrsons Rules 
 entitled nmU'r a will liavitij,' been survcil aurl not liavin^ lieeti tcncleri'd costs, 1194,1190. 
 were allowed costs of appwiriuK on a jjetitiou for construction of a will. 
 
 See iils(/ Od/ijilif// V. JIii/i/liiKif, 7 Cli. 1). Kill. 
 
 Wiiere ii trustee appeared on an ai)penl though n' ;, notified lie was not 
 allowed costs : Ardcn v. Ih-ucnn, ol L. T. X. S. 712. 
 
 Illl4t Where any party appears upon any application ^'""eces- 
 or proceeding in Court or at Chambers in which he is not jiearanco 
 interested, or upon which, according to the practice of the a" cham-^'^ 
 Court, he ought not to attend, he is not to be allowed any ^^^'^^ 
 costs of such appearance, unless the Court or Judge shall 
 expressly direct such costs to be allowed. J. A. Rule 437. 
 
 Identical with Kng. R. 12th Aug.. 187r>, "Costs," K. 21 ; 1K8.S, (). ().-), r. 27 
 (ffl). See Huf,'. Ciiy. Ord. U), r. 28 (Morgan Orders, 4tii ed., p. 38!l), Morgan & 
 Wiirt/.l )iu'g on Costs, (i!l. 
 
 Where the costs of a sheriff in an interpleader matter had been ordered to be 
 paid by the claimant, the claimant apjK'aled, contending that the execution 
 creditor should pay them. Jiotii were able to pay. The sheriff was not allowed 
 costs of appearing on the appeal : A'.r. y*. Wvhstrr, Re Murrin, '2^1 Ch. 1). VMS. 
 
 In O'liri'ii V. lUtll, lit C. L. .1. 211, a sheriff mmecessarily served with notice 
 of nietion for final order in an interpleader matter was allowed costs of appear- 
 ing ; see also Itdbcrtxiin v. (inail, 3 Chy. Cii. 331. 
 
 Costs of a ijerson appearing to object that tiii-re Ih no jun.sdiction : (<retd 
 Xiirtheru v. Iitftt, 2 Q. B. 1). 284 ; or '//'/« (invt tiiat by mistake an order will 
 be made ajfainst him : Liwus v. Fnisn- <» P. R. 31!( ; will be given, but not of a 
 I)ers()n not interested .and appearing merelv to ask costs : ('(tuijM/ v. llnliiland, 
 7Cli. D. 175; Re Ardeii, 33 W. R. 4(10 ; Waller v. Claris, 11 P. R. 1.30. 
 
 Tile Court cannot ])revent the api)earance of ))ersons entitled to ap])e.ar, but 
 may sometimes protect an estate by .allowing only one .set of costs to several 
 piirties : Li'ck v. Utanlri/, 28 Sol. .loin'. 415. In Rr Kixjlislrs ,S'/tlciiii'ii/, supra 
 the costs of a trustee were allowed, he being i>roperly served. 
 
 1195. The Court or Judge may, at the hearing of f'Uy f,Jc|"oT^ 
 action or matter, or upon any appeal, application or pro- costs of un- 
 ceeding in any action or matter in Court or at Chambers, p?oceed^^ 
 and whether the same is objected to or not, direct the costs '"^s. 
 of any writ, pleading, petition, affidavit, evidence, notice to 
 cross-examine witnesses, account, statement, or other pro- 
 ceeding, or any part thereof, which is improper, unneces- 
 sary, or contains unnecessary matter, or is of unnecessary 
 length, to be disallowed ; or may direct the taxing officer 
 to look into the same and to disallow the costs thereof, or 
 of such part thereof, as he shall find to be improper, un- 
 necessary, or to contain unnecessary matter, or to be of 
 unnecessary length. In such case the party whose costs 
 are so disallowed shall pay the costs occasioned to the 
 other parties by such unnecessary proceeding, matter, or 
 length ; and in any case where such question shall not 
 
 111 
 
 Mil 
 11 
 
 
012 
 
 COSTS. 
 
 Rule 1196. iiaw l)C'cn raised before a lul dcnlt willi ]>y the Court or a 
 .lii(l<.,'o, the taxiiif;; oflictr may look into llic Raiiic (and, as to 
 evidence, althou,L!;]i tlie annie may be entered as read in anv 
 jud^nicnt or oi-di'r) for tlie pui'iiose aforesaid, and tlicro- 
 upon the sani(,' eonseijiienees shall ensue as if lie had \m\\ 
 speeially directed to do so. Sec Chy. 0, 71. J. A. l;ule 
 UJ.') : Api). 0. 10. 
 
 IS Kii«-. I!. iL'tli Aiik'., IS"., "costs." it. ]H: iss:<, (). (;:., r. L'T (2(1), Mild 
 I'll Vm'J. Cliy. Oilier IK, IJiilcs !) it lO : sec ,M(,r^;iii ( )nli]>, liln.(l.,:i.sl. 
 
 Smii 
 fdimd 
 
 Th" < 'iiurt may on its own inotiini cxcffisc tlic ixjWci's ffivcii liy tliis Huh in 
 rc^jiinl til cipsts " wlictlii'V till' siiiiic is olijci'tcd to (ir nut"': sec Jlrimny Jjiif- 
 
 <l(if. :\7 rii. I). L>(i7. 
 
 Till' umnlirriif witnesses to prove ii |ioint is a matter in tlie iliscretioiidf tlii' 
 Taxing' < )tticer ; anil so as to witnesses ealleil to esta,lilisli sonietliiiif,' nn which 
 the party ealliiiK tliem fails : L,ilo,ir v. Smith, 1.S ]'. ji. L'14. 
 
 The case statt'd for the purpose of an apjx'al should only contain as imidi 
 of the proceed in trs as i.s necessary to raise the ((uestimis iiiMiheil in tlieapiiiai: 
 see I'lii'xmix v. Sliimliifil liixitrdiirc ('a., -i Out. App. at ]k ',VM\ /h r I'lintoii, .I.A., 
 anil see SicLhn v. Mnrrin, 1 ( 'liarl. Notes of Cases, 174. 
 
 ^\'ll(■l•e the notes of the evidence have been lost, the Court of Appiiil may 
 allow till- evidence to he taken over apiin : E.i- jkiHi Firlli, l!< t'(iii-liiirii,V.i 
 Ch. I), nil : r.l L. .1. Chy. 173. 
 
 The -Master must iiupiire on taxation into the prii)iiiety of iiioeeeilin^siuan 
 action, tlionph not spei'ially directed to <lo so; and he cannot refuse tiKiusn 
 where an order is made to stav in'oceedinn^s on pavnient of costs: /lainisy. 
 Wiiniixltii, -17 L. .1. Chy. 844 ; 3!l L. T. \. S. S5. 
 
 Where an ajijieal was brought from a ^Master's rejiovt, in order to raisca 
 question which was not the subject of apjieal, a substantive niotion «as also 
 madi' concurrently for the same relief, though the relief was given no co'ts were 
 given of either apjilication ; Fimrliiir v. S(. Ldiiin, \H J'. H. ;-ilS. 
 
 For the practice as to tax.ation of costs of an abandoned motion, oreii dis- 
 continuance of action, see Hdrrison v. Lent no; Ki Ch. J). 55!). 
 
 A direction in an order for a commission in the oimmon form: sw Fonn 
 No. lL'!l, in A]ip., that the costs are to be costs in the cause, does not im-cliiilc 
 the taxing officer from disallowing the costs on the ground that the evitliiicc 
 ha.s not lieen used : Jimiiinivn, etc. v. SlinKon, !) P. 1\. 177. 
 
 Costs of in- ll!M». No allowance is to be made for any order for 
 dociuneuts. production or any notice or inspection under any of the 
 Rules relating to production and inspection of documents 
 unless it is shewn to the satisfaction of the taxing officer 
 that there were good and sutiicient reasons for taking the 
 order, giving the notice, or making the inspection. J. A. 
 liule 230. 
 
 The same in substance as Eng. R. Aug., 1875, R. 15 ; 1883, (). 05, r. 27 (17). 
 Costs of insjiection were not allowed between party and party in Brovn\'. 
 Heivdl, 10 Ch. D. 517 ; ^yickntied v. JJi,j<js, 52 L. T. N. S. 428. . 
 
 t 
 
 
 
 £ji /^y ^ 
 
TAXATION. 
 
 913 
 
 ijy tlu' Court or a 
 t; Hiinn.' UlU(l,!lStO 
 ed as read in any 
 ■(-said, iiiid tlitii'e- 
 iH if lu' luiil licen 
 '.71. J. A. llulo 
 
 ,s:<, (). c.ri. r. 'j: cj"), mill 
 
 ir-imOnlfrs, ■ltlic(l.,.'iSl, 
 
 ■s ^'ivcii liv tli'iH Hull ill 
 it"' ; sec llr'in-n v, Ili'r 
 
 ■ in till' ili-^cri'tiinuif tln' 
 isli siiiiictliiii^' nil wliidi 
 , -214. 
 
 il .inly I'liiitaiii lis iiiiicli 
 , iiiMiivril in tlii'iili|ii'al: 
 
 11. :i;<(t, y"'- r.ui'toii,.i.A., 
 
 lie Ciiiivt iif A|iiii'iiliiiay 
 •( J-'Irtli, Hi Co ('■'»« ni, 111 
 
 'iety of iH'tK^crfliiiffsiuan 
 (• ciuuiot I't'fusc tiidusii 
 uimt of costs: JS<iini«\. 
 
 port, in ordi'i- to raise a 
 stiuitivc niotmn was also 
 f \\ as ^'ivcn no costs were 
 '. \{. 'S\i^. 
 
 loncd motion, or nn (lis- 
 . 1). 5511. 
 
 tr minion lonii: see Form 
 cimsc, (lots not iireclude 
 rronml tliat tlif evidence 
 177. 
 
 for any order for 
 
 under any of the 
 tion of documents 
 
 the taxing officer 
 }ons for taking the 
 
 inspection. J- A. 
 
 r,; 1SS3, 0.0.5, V. 27(11). 
 tviuid party in Broim V. 
 ;S. 428. y 
 
 2. Taxation. Rules 
 
 1197-1201. 
 
 1IW7. Where costs are awarded to be paid, it shall beTiixinR 
 competent to a taxiiiff officer to tax the same, without an nmyhoc 
 expreHS reference to him for that purpose, Chy. 0. 810. luu oxprosg 
 
 roforouce. 
 Tlie Master or a taxing officer in not jtistified, without a direetion froni the 
 Ciiiu't, ill striking a balance lietween cross clainis for costs jiayiilile in the 
 aetiiiii; /'"'i /"V/' v. >S7. Limin, ],'{ ]'. !■!. .SIH, except where Unit iL'dl applies. 
 
 ll!>>S. No bill of costs where the amount claimed ex- no I'lu of 
 ceeds $30 is to be taxed l)y the Registrars, the IMaster in eeciUuK *to 
 Ordinary, the Master in Chambers or Clerk in Chambers, [ly i'/^.^'i'^^^"'^ 
 but every bill exceeding that sum is in Toronto to be taxed »'"«• "'c. 
 by one of the Taxing Officers, notwithstanding anything to 
 the contrary contained in the order for taxation. Chy. 0. 
 310. 
 
 Tills fill/'' merely applies to costs taxable in Toronto, and does not in any 
 way restrict the .jiirisdiction of local taxing ofIicer.s. 
 
 11119. One day's notice of taxing costs, together with aonBciay's 
 copy of the bill of costs and affidavit of increase, if any, "axaddn 
 shall be given by the solicitor of the party whose costs are «"""='out. 
 to be taxed to the other party or his solicitor in all cases 
 where a notice to tax is necessary. Rules T. T, 1856, 48. 
 
 Notice of 
 taxation 
 uiiiieoos- 
 sary when 
 (lefi'iidant 
 has not ap- 
 peared. 
 
 
 1200. Notice of taxing costs shall not be necessary in 
 any case where the defendant has not appeared in person, 
 or by his solicitor or guardian. Rules T. T. 1856, 50. 
 
 As this Rule only dispenses with notice of taxation to defendants who liave 
 iiiit apjieared, it would seem to be intended that wherever a defendant has 
 a]i])eai'ed, he is to be entitled to notice of taxation, and notwithstanding this 
 /'"/('notice is necessary when the defendant has done that which is erpiivalent 
 to apiK'nring, such as consenting to a .Indge's order or the like: Lloyd v. Kent, 
 51)iiwl. 125; Arch. Pr., 13t,h ed.. 431. 
 
 1201. The taxing officer shall have authority to arrange Parties to 
 and direct what parties are to attend before him on the ations. 
 taxation of costs to be borne by a fund or estate, and to 
 disallow the costs of any party whose attendance the officer 
 shall in his discretion consider unnecessary in consequence 
 of the interest of the party in the fund or estate being small 
 or remote, or sufficiently protected by other parties inter- 
 ested. J. A. Rule 440." 
 
 Identical with Eng. K., Aug. 1875. " costs" R. 24; 1883, O. 65, r. 27 (27). 
 
 J.A. 68 
 
 
% 
 
 
 -^'^ II 
 
 c 
 
 914 
 
 Rules 
 
 1202, 1203. 
 
 DdfoiiiliintH 
 iiii|ii-c)|iurly 
 
 Hl'Vl'lillK 
 
 aril til lie 
 alliiwc'l 
 
 but OIK) Htit 
 of (M)KtH 
 WitllOIlt 
 
 RpiM'ial 
 oi'ilur. 
 
 Billo as to 
 (lulmiitaiits 
 joining ir. 
 dufcnco, 
 to whom it 
 apiilius. 
 
 Olio ilofen- 
 daiit ini- 
 liropevly 
 soveriuf,'. 
 
 COS'i'H. 
 
 ltS4>2. Wlu.TL' two or iiioro (lotV'iidfuitH dcfoiid hy differ, 
 cut Holicitors uikUu* (urciunstanccs that by tlio law of tlie 
 Court, eutitlo tlieiu to hut on<' set of costs, the tiixiii" 
 olH(!er, without any spev iiil order troni the Court, is to 
 allow hut ou(! sot of costs ; and if two or more; dclViidiints 
 defendiu}^ hy tlu same soUcutor sei)ariito unnecuHSMrily in 
 their defences, or otherwise, the taxiuf,' oiHcer is, witlioiit 
 any special order of the Court, to allow hut one difence 
 and set of costs. Chy. 0. 315. 
 
 Wlu'i'i' ail iictiiiii is tried a^'ainst two uriunri' ilcfiiwiaiils and llir jniitriiiciit 
 is af,Miiist all ilffnidanl'i, a (IffciKlant x-iwA lialilc' Id to r(ciiii|p tlir |iliiiiititf f. 
 costs ciiust'd hy HO niiu'li of the st'iiaratc dcfi'in'c of otlicr dctciidaiit- a> nuild 
 only he II (iHffiicc tosuuli otlii'i'dt't'cndiuits: SIiukhi v. li(.'i(i,'l'H.l. li. I). IHI, "iLli. 
 
 Ah to tli»' fit^lit to contriiiutioii aiiioii^;st cn-dcfciidautH inailc jointly liulile for 
 |ilaiiitirt''s costs, sec Ftiiir'nicr v, St. Limls, l;i I'. |{. ;US. 
 
 Tlic rule which rc((iiii'i's defendants in the i-auie interest to join in their 
 defence, appeaivi only to a]i|ily to defendants standiiiK in a tiduciavy |iii«iti(iii, 
 either as trustees : Fiirr v. Sin rij)u 4 I lar. oL'f' ; (iVi'isIkik <jii< hua/ciil ; I'lillmw, 
 lli-mkiKU, 4 li. T. N. S. 7;VI ; Sin. I'r. HIiT-.S ; Imt see CritirUivil v. Lumhi.i'i 
 (Jr. LT)!. Tluis in ii, suit for speciHc perfonnaiice liy a vendee^ a^'iiin^t tin' 
 yend'ir, and a sul)sc(|Uent veiulee of the same in-operty, it was held lliiit tlii' 
 defendants mi(,dit |)ro|ierly seyer in their defence, and employ scpaiate selici- 
 tors : Jiiirnlt v. ('mn/ilic/l, 7 I'. H. lo". l>nt \\ hen luisliand and wile stvinil 
 in a partition suit, the costs were ordered to lie home hy the uife's -luire: 
 Mililtaiii) V. QuickC, 4(i L. ,1. Chy. (I(>7. 
 
 Whei'o one of several defendants is char^'ed with fraud, the others aie justi- 
 fied in severiiif^, even though they staiul in a lidiK'iary position : i-cc Cuiiwillii 
 wHill, 7 1'. U. 441. ■ 
 
 Where defendants have severed inider circnmstance.s whicli. if the scvtniuoi 
 were inii)roper, would disentitle oiu^ of them to costs in IhId, the Ma-u r uiiniKit 
 act under this Rii/c, if the judg'inent award the defendants costs giiieriilly. 
 The Jiii/r applies only where all the defendants are to lilame for the .severance, 
 and one set of costs is consequently .'ipiiortionalle hetween tlicni : R(id\. 
 Stt/ilnnK, b Chy. Ch. 372. 
 
 The Taxing' Officer has a discretion to allow to defendants wlm apiiear 
 separately separate sets of costs e.xcejit in tlii' cases referred to in this Rulf. 
 Jidninl/ V. Cmd.i, 'Mi Ch. I). 444. For the cases in which it is iiiiiii'niier f(ir 
 defendants to .sever : see ]S[organ it Wurtx.hurg on Costs, p. 124. 
 
 On apiieal from a Taxing Olticer as to whether defendants were entitled to 
 separate costs, where it was not shewn that he had not exercised hisdiscretidii 
 at all, or that he had not flone ,so on a wrong jirinciple, it was held that an 
 appeal from his decision could not he entertaineil . llnxwdl v. Coal^.t, '.M\ Cli. I'. 
 444. 
 
 Neglect to 
 bring in or 
 tax costs. 
 
 120!i. Where any party entitled to costs refuses or 
 neglects to bring in his costs for taxation, or to procure the 
 same to be taxed, and thereby prejudices any other party, 
 the taxing ofBcer shall be at liberty to certify the costs of 
 the other parties, and certify such refusal or neglect, or 
 may allow such party refusing or neglecting a nominal or 
 other sum for such costs, so as to prevent any other party 
 
Iffond liy (lift'or- 
 y tlu! law of the 
 ;ost8, the taxiu}; 
 the Court, in to 
 inoiH! (Icfciidiints 
 umiccessiirily in 
 )itic',ev is. witlioiU 
 l)ut oiu> defence 
 
 iiiits ;iiiil llir judtniicnt 
 
 V(umi|i till iiliiiiititf f' 
 
 icr (Ictciiiliiiit- a- timid 
 
 /,,■,.„, •J•_'^^ I',. D.li'.t.ra 
 
 in iiiiulf jdiiitlylialili' fur 
 
 htcvc^t til jiiin ill their 
 ,' in ii tidmiiiiy iiu^itinn, 
 1.1 II IK Irimlnil : riillnnw 
 
 Cniirfin-il V. Liimlii, 23 
 y a vciiilcf ii^MiiM the 
 vty, it was hfl'i 1 hut thy 
 
 (•'inliliiy siiiai'iitc ^•I'lici- 
 it-liiiiid iiiiil wilV m'VithI 
 ■lie tiy tlic wifi'''^ -hw. 
 
 luid. thii otlifi-s lire justi- 
 y IMisitioii : xt'<' ('"iimi//;/ 
 
 ^^llicll. if thi- si'Vi'i'iURn 
 ^1^), tlii'Mii-i<'i'i'"i'»"t 
 
 iiihints c'lists p'lii'rally. 
 I.l.uiif fill' thcM'Viraiiw, 
 butwci'U tUciu : /•(i''v. 
 
 , .l,.ff!i(liiiits wild apiifM 
 
 rcfcnvd t.) in this iJiC". 
 
 which it is iinimiper for 
 
 )sts, p. 124. 
 
 fcudunts were cntitlKl to 
 ,t (.screiscdhisiliscrctiim 
 ,,1,.; it wus UM that an 
 
 ,0 costs refuses or 
 n, or to procure tlie 
 'es any other party. 
 
 certily the costs oi 
 fusal or neglect, or 
 ectin^ a nomniai or 
 
 .nt any other party 
 
 TAXATION. 
 
 915 
 
 J. A. Rule ?«!"„„, 
 
 1304, 120D. 
 
 beiuf:; prejudiced by such refusal or neglect 
 411. 
 
 Identical with Eng. R., Aug. 187.'., R. 2.5 ; 1HH3, (X («, r. 27 (2«). 
 
 1204. In any case in xvhich a pu'ty cntitlod to re- ^;^Jj°''f "' 
 ceive costs is liable to pay costs to any other party, the 
 taxinf,' olBcor may tax the costs such party is so liable to 
 pay, and may adjust tlu; same by ay of dedu^fion or set 
 otl', or may, if he thinks fit, delay tlie allowan>;o of the costs 
 -,uch party i.^ entitled to receive until ho las paid or ten- 
 dered the costs he is liable to pay ; or the officer may allow 
 or certify the costs to be paid, and the same may be re- 
 covered by the party entitled thereto in tiie same manner 
 as costs ordered to be paid may bo recovered. J. A. Rule 
 13(). 
 
 Same as En^. R., AuR. 187.'>, "costs" R. 10 ; 18H.S, R. 27(21). 
 
 Under this Iti'li' a disen^tioii is allowed as to whether or not there '<h;dl be ii 
 get-iiff of costs in the same action wlinre costs are awarded to and aj,'iunst the 
 [jartius. K([iiital)le considerations an* allowed to enter into the disinisalof the 
 CDiiti'iition and there is no strict ri(,'ht in the matter : McCarthy v. Cimjjer, 12 
 P. K. 12.") ; where a set-off was refused. 
 
 This Riili' howev(!r d(K!s not ai)i)ear to authorize the Master or ta.xiiig officer. 
 to adjust the h.ilance due on cross claims for costs, wh(U'e jiart of the Indanctt 
 is claimed in the naturi of contribution for costs paid by a defendant \'hich 
 the iilaintitf was also joii.tly liable to pay, but of which he has neglected to pay 
 his share : Fnuchu'i- v. St. Liiiiin, 13 P. R. lUH. 
 
 This Uiiti' does not api)ly to diflfert'nt actions between the same parties but 
 only to costs incurred in the same action or ])roceeding : Jiadrr v. Ileminiiiij, 
 ')(l. 15. I). ()(!!(. It applies to eiuible costs receivable out of a fund by a p.arty 
 to be set off aprainst costs payable by that party personally in the suit : Batten 
 V. WMiiwnml Coal .£• //•<,« (,',-., 28 Cli. D. 317. 
 
 So where, by an award in .in action, the iilaintifT was ordered to pay a 
 sum of money to the defendant, and the defendant was ordered to ])ay the 
 Iilaintiff a part of his costs when ta.\ed, it was held that the defendant was 
 Hiititled to have the debt set off against the taxed costs, and that the right to 
 set-off in such a case was not interfert^d with by the ordinary solicitor ".s hen for 
 costs : /'/■//(///(■ V. (Uoaij, 10 Ch. D. 070. 
 
 A chr.nife of solicitor is immaterial if the costs are in the same proceeding : 
 /{i<4('//.s V. liu(c, 8Ch. I). IttS. 
 
 .\3 to tli(! solicitor's lien in the same cause, see next Ruh'. 
 
 In the case of cro.ss-jud^ments (not within this Ihtlc), in twodifferent viroceed- 
 iiigs, the lien of the solicitor will prevail and prevent a set-off: see Ride 120.5: 
 RiisK V. MiLdi/, 7 P. R. !)7; Cathhert v. Cuiiniieirinl Travellers Ansoriatinn, 7 P. 
 K. 2.'i.j; Welih V. McArthiu; 4 Chy. Ch. .SO ; Re Harrahl, Wilde v. Wfdford, 48 
 L. T. N. H. ;»2 ; .51 L. T. N. S. 441 ; 31 W. R. 518 ; Edwards v. Hone, 14 Q. B. 
 D. !)22. 
 
 1305. No set-off of damages or costs between parties set-otr of 
 shall be allowed to the prejudice of the solicitor's lien forand'S 
 costs in the particular action against which the set-off isj'^^i'"'^- 
 sought ; provided, nevertheless, that interlocutory costs in "tor's lien. 
 the same action awarded to the adverse party may be de- 
 ducted, Rules T. T. 1856, 62. 
 
 ^> 
 
 "^•'2? 
 
916 
 
 Rule 1200. 
 
 COSTS. 
 
 Tlie practice in England, under Ruies of 1883 R. 089, is the reverse of the 
 prao^^^ice ])re.scril)ed by this Rule, whicii itdopts tlie Equity rule, us to which 
 see Primik v. (iloari, 10 Cli. D. 70. . ! 
 
 Tiia ling. R. is as follows : — • ,< 
 
 "98!). A set-t)tf for damages or costs between parties may be allowed notwith- 
 standing the solicitor's lieu for costs in tiie partictilar cause or matter in which 
 the set-off is stmght." 
 
 Whether tlie Eng. R. extends to a set-off in independent actions or not, the 
 Court lias luider it a discretion, to order that the set-off shall ))e subject to the 
 solicitor's lien : see Edwnrds v. Hojh; \A (I. \i. D. !»22, and Jilakm v. Lttthmn 
 41 Ch. D. 518. 
 
 As to the api)licati()n of the Itnlf, see IJttli v. PhiliKittn, 8 ,)ur. X. S lljo- 
 Yinuui V. Hoh^ou, 8 P. R. I'o.S ; Ri Ifurrahl, 48 h. T. N. H. .T)!' ; li<irlir v.' 
 Himmiwi, 5 t^. B. D. (iO!) ; C'litlihcrf v. ('iimiiK rcia/ Tmvdhrx Axxdciiilion, 7 P R 
 25;-). 
 
 The Common Lav.- Rule 52, from which this Rule is takin, was in similar 
 terms to tlie English Rule (>3 H. T. 18;",;5. The words "damages and costs ''in 
 this 7i"/t' ai)i)ly to damages and costs ])ayal)le in separate actions; and it is 
 only where a set-off of damages and costs in sejiarate actions is sougiit timt the 
 lien of the solicitor is to be jjrotected : ii<(ir(i< v. Ebton, 1 Sc. 41S ; Duuh v 
 Wmt, 10 C. U. 420 ; Sc«H v. Iticluhnurii, 11 C. 15. 447. 
 
 A set-off has been allowed of costs due liy the i>laiiitiff to one of several 
 defendants as to whran he luul failed, against danniges and costs (hie to the 
 plaintiff by other defendants a.s to wiiom he had succeedid, without nwud to 
 the attorney's lieu : Rawlim/K v. Stmlt, 7 Wc. 231 ; (Itoriic v. Khtnu, 1 Sc. olS; 
 Fortune v. 'Hick.fnt, 1 V. C." i). K 408; Sc<,n//e \: Noble, 1 II. 151. 2.'5 ; lUnkni 
 U/iiier Ciinitila v. Thomas, 10 (4r. 3i")(> ; Wrii/lit v. Cliio-il, 1 Ij. T. N. S. ISL'; 4 
 Drew. 702 ; but see Wi/xoii v. t^irilu i\ 1 Chy. Cli. KiO ; and this, even tiiough 
 the defendants a|)i)eared by different attorneys: Lees v. Kontdll,'^ .\. & K. 
 707 ; 5 N. & :Sl. 340 ; but see Wilxon v. Switzer, 1 Chy. Ch. ICO. 
 
 ]5t'.i, claims for contribution cannot be .allowed by the Master or taxing officer 
 l)y way t)f set-off : see Fimeliicr v. St. Luiilf, 13 V. R. 318 ; the aiiplication 
 nuist be made to a Judge, /h. 
 
 The Court, however, has a discretion in allowing a set-off of costs in the 
 same action : McCarthii v. Confer, 12 I'. K. 125. 
 
 The lien oi the solicitor (mly holds as against the o])i)osite party to the 
 extent of the costs between srjlicitors and client of the cause only, lie cannot 
 claim a general lieu for all costs due him : Stejihenx v. Wenton, 3 15. & C. 53,"); 
 ]V<it.wn V. Maxkdl, 1 IBing. N. C. 727. 
 
 In Jeioier v. Morrin, 11 W. R. 043, the lien of the solicitor was declared to 
 be always sidi.ject to the erpiities between the jiarties : and see Jli rci r v. (Irara, 
 L. R. 7 Q. 15. 400; but this view has not always been maintained liy the 
 Courts : see Ite Cfelawl, 2 Chy. 808. 
 
 To the ordiiKiry nde that a set-orf of dam.iges and costs in separate actions, will 
 not be allowed to the jn-ejudice of t!ie S(ilicit<n''s lien ; costs jiay.able t,> a trustee 
 out of the trust estate fonn an exception; and when costs an^ ordered to lit' 
 ])aid out of a trust fund, the lien of the solicitor of thi' jiersoii entitled tu 
 receive the costs will not be allowed to interfere witii the set-ofl' apiliist the 
 costs soi)ayable of any nujueys payable by the client to tile trust estate, tliough 
 the latter may be jiayable under a judgment recovered in a separate action rii'i 
 Nnrrolit, Wi'lile v. Walfonl, .51 L. T. N. S. 441. J5ut the ultimate lialance 
 found due by one of the iiartners in a partnershij) stiit cannot be set off asaiiist 
 fosts iireviouslj' ordered ^o be \kw\ to him in the action, to the iirejndice of iiis 
 solicit(n-'s lien : D(tvxon v. Mofott, 10 1'. R. 3(i() ; and see J/ieron v. Hohmn, 47 
 L. J. Chy. 574 ; see, however, Brii/lKiin v. Smith, 17 (Jr. 512 ; but in tliis case 
 no question of lien appears to have l)een raised. 
 
 Whether for tiie inu'pose of this Rule a claim and counter-claim are to l* 
 treated as separate actions is not verj' clear. In Broiru v. Sel-fon, 11 1'. i{- l-li 
 where the claim .and counter-claim arose out of the><ame transaction, the set-off 
 was allowed without providing for the solicitor's lieu, but in t'uHndMa I'aciJ^c 
 
TAXATION. 
 
 917 
 
 s thf reverse of the 
 tj' rule, as to which, 
 
 y ht allowed notwith- 
 10 or nuitter in which 
 
 lit actioiix (ir mit, the 
 liall he subject tii the 
 id Jildkiii V. Ldthum, 
 
 ',tH, H.lur. N. S.I To; 
 X. S. 352 ; liiidir v. 
 IS AnKdciiition, 7 V. R. 
 
 taken, was in similar 
 laiiiages and custs " in 
 lite actions; and it is 
 ions is sdUtrUt that the 
 1)1, 1 Sc. 41S ; Dhiui v. 
 
 lititf to one of si'Vi'Kil 
 i and costs due to the 
 ded, without re;,'anUo 
 •lie V. Ehtini. \ So. ."illS; 
 .' 1 H l'.l. 'JS; Hniikn) 
 y, 1 L. T. N. S. l.s-i;4 
 and this, even tliuugli 
 V. K, ii'loll, 3 A. & L 
 Ch. l(>t>. 
 
 J^laster or taxinj; officer 
 i. 31.H ; the ainilicatum 
 
 set-off of costs in 
 
 the 
 
 ipiiosite paity to the 
 |e cause only, 1"' fi"""j' 
 WtKtuii, 3B. & C. 535; 
 
 )licitor was declared to 
 ,11(1 see >iiVrr(-)'V. '.■(•«(!«, 
 leeii maintained hy tlie 
 
 , in separate actions, will 
 
 osts i.aval.le to a trustee 
 
 costs ar(^ ordered to IH. 
 
 f the iiersoii entithdto 
 
 the set-otf airamst the 
 
 the trust estute.thouijh 
 
 inasei-arateactioir.iu 
 
 ,t the ultimate liahmce 
 
 cannot be set otl- asaiust 
 
 11, toth.l'iv.iudiceofh>» 
 
 si.(. Jlirron v. Hoh^on, h 
 
 ,r. 512 ; Imt in this case 
 
 countor-chu.n ave to 1* 
 
 x.Xelson, 11 l-l^-'-'i 
 ,,. transaction the set-cj 
 
 B, W. Co. V, Grant, 11 P. R. 208, the claim and counter-claim, though arising Rules 
 out of the same transaction, were held to be separate actions, and a set-off, to 1206-1208. 
 tlie prejudice of the solicitor's lien, was refused. 
 
 In the following case.s a rtt-ofF of costs payable in sejiarate actions to the jire- 
 iudioe of the solicitor's lien was refused : W'lhb v. McArt/iin; A Chy. Ch. 03 ; 
 Milimnh v. Hope, 14 (l B. 1). !)22 ; 53 L. T. X. S. tl!) ; CiillihrH v. rmumnrlof 
 Tivri'Ui-rs Aasm »., 7 P. R. 255 ; and see Ras^ v. Mc/mi/, 7 P. R. 07 ; Wni-itct! v. 
 Tremmtli, 8 1'. 11. 142 ; linrhrr v. llentmiitu, 5 (I. B. 1). (')()!) ; Illokcii v. I.Kthdni, 
 41 Ch. D. 518. In the following cases a set-off costs in the same action was 
 allowed without regard to the solicitor's lien : I'riiujlc v. (ihimi, 10 Ch. 1). ()7<i ; 
 4(1 L. T. N. S. 512; ('«//«■/•<„, v. Cumphell, 12 U. C. (I B. l.^:!t ; 1 P. R. 170; 
 }',;////(/ V. //o/w-i/(, 8 P. R, 2.53 ; Mn.nn'll v. Md.nor/I, 7 P. R. (13 ; Ra\clin<is v. 
 iimitli, 7 Sc. 231 ; costs of special issues, or of interlocutory proceedings in the 
 same action may bo set off without regard to the solicitor's lien. 
 
 The solicitor's lien attaches to money received by the plaintiff by way of 
 c:m\|iroiiiise wdiere such ii'oney is in substance the fruit of the actitm, and a 
 solicitor having notice of the lien who procure.s the mtmey to be ])ai(l to the 
 iilaintilf, becomes personally liable to satisfy the lien: linss v. liii.iiiin, 42 Ch. 
 D. I'JO. 
 
 120(>. Costs may be taxed on an award, although the costs may 
 
 ,. » !• ^ • • i. i.1 J 1 be taxed on 
 
 time for appealinp; trom or moving aganist the award has an award, 
 not elapsed. Rules T T. 1856, 142. *|S'^r 
 
 .Arbitrators who iiave power to award costs, cannot, unless expressly author- elapsed, 
 ized so to (hi, award them "as between solicitor an(l client." This excess (tf 
 jurisdiction inav be objected to on taxation, when tiie oojection appears in the 
 face of the award ; /^ 'Jl'ut// ,1- Tomnln, 13 P. R. 31(i. 
 
 1307. All bills of costs or disbursements in actions m-'vision of 
 brought for the administration of an estate, or for partition, costs.'" 
 or for the foreclosure, redemption or sale of mortgaged 
 premises, and all bills in other actions where the amount is 
 to be paid out of an estate or out of a fund in Court, or in 
 which any infant, lunatic, or person of unsound mind is 
 interested, (or which shall be paj'able out of any estate in 
 which any infant, lunatic, or person of unsound mind, is 
 interested,) are to be revised by one of the taxing officers of 
 the Supreme Court at Toronto, before the amount thereof 
 is inserted in any certificate, report, order, or judgment. 
 J. A. Rules 439 and 593. 
 
 Revision of costs i)ayable out of "a fund in Court " is not cimfined to cases » 
 where the Court has judiciel control over, or has to exercise some judicial func- 
 tion in regard to the fund. The expressh)ii " a fund in Court " has no technical 
 signitication which makes it ini^an anything different fnmi " a sum of money in 
 Court" : C(u(xiiii'(iii V. Loiuhm Fire Ins. (V/., 13 P. R. 42. 
 
 Tlie Court will not iiermit costs occasioned by imjiroper litigaticm, or 
 nejrligent conduct of proceedings, to be ])aid out of an estate under its care; 
 and the amount of cos*- 'ilh .ved l)etween solicitor and client is not conclusive 
 as to tlie amount which will be allowed out of an estate : Brown v. Jiimiett, 40 
 Ch. D. 152. 
 
 120cS. The Local Master or other local officer is forth- ^/j^'^^j^^g"' 
 with, after taxing any such bill of costs, to transmit the by locai 
 
 ° *' officers. 
 
918 
 
 COSTS. 
 
 Ilule 1209. 
 
 '^^ 
 
 % 
 
 ^ 
 m 
 
 ^^ 
 
 Eeview of 
 
 taxation. 
 
 Appeal 
 fri)m tax- 
 ation by 
 local offi- 
 cers how 
 i;rought. 
 
 Duty of 
 Taxing 
 Officer on 
 receipt of 
 bill for re- 
 vision. 
 
 Powers of 
 Taxing 
 Officer on 
 revision. 
 
 same by mail to Toronto, addressed to the proper taxing 
 officer, and he is to allow in the bill the postage for the 
 transmission and return of the bill, and shall prepay the 
 Rame ; and is to allow in the bill the sum of one dollar as 
 a fee for the revision of the bill by the taxing officer at 
 Toronto, and a law stamp for that sum, with postage 
 stamps for the postage, is to be paid at the time of taxa- 
 tion by the party procuring the bill to be taxed ; and the 
 Local Master or other officer is to transmit with the bill to 
 the taxing officer at Toronto, the law stamp, and tlie neces- 
 sary stamps for postage on the return of the bill to the 
 Local Master or other officer. Chy. 0. 311. 
 
 A revi.sion of taxation is now neces.sary to be had only in tlii' chiss (if actions 
 uientiont'd in Rtdc 1207. 
 
 A review of taxation may now be liad as provided by llnh-tt Vl'M, iL'H] ; and 
 an apijeal therefrom to a .Fudge, as pnwided by llidrs 851-854. Nolw itlisfand- 
 ing Rule 851 it was held by Boyd, C. that an api)eal from a taxation by u Local 
 Officer, would not lie dirvui to a Judge, but that the liill niu.st be revised liy 
 one of the Taxing Officers in Toronto, from whom alone an appeal to a.lmlge 
 will be entertained: t'rtnrc v. tStcq/n; 2 C L. T. 83; but in (•'nni/ v. (ii-niit, 
 10 P. R. 40 ; Wilson, C..T., (see p. 44) a|)pears to have been of oi)inioii tliat an 
 appeal lay direct from a Local Taxing Officer to a .hidge. Tliese c(jns(ili(late(l 
 Rules, at all events, i)rovide only for an appc^al to a. Judge, and appear to supply 
 no machinery for carrying a taxation from a Local Officer before eitlur of the 
 Taxing Officers in Toronto, except in the cases mentioned in Ri'/'' ]'_'M7, tlic 
 fonner Rule S. C. 43!) It, which allowed a revi.^ion in any casi at the option of 
 any of the parties not having been been re-enacted. 
 
 1309. The taxing officer at Toronto, upon receiving the 
 bill of costs is to examine the same, and to mark in the 
 margin such sums (if any) as may appear to him to have 
 been improperly allowed, or to be questionable ; and he is 
 to revise the taxation eitl^er ex parte, or upon notice to the 
 Toronto agent (if any) ol the solicitor whose bill is in ques- 
 tion, as in his discretion he may see fit ; but notifying such 
 agent (if any) in all cases where the taxation is not clearly 
 erroneous, or where the amount in question is so large as in 
 the judgment of the taxing officer, to make such notilica- 
 tion proper. Such notification may be by appointment 
 mailed to the address of the agent (if any). If upon the 
 revision the sums disallowed shall amount to one-twentieth 
 of the amount allowed upon taxation, the taxing othcer is 
 to add to the amount taxed off, the amount of postages, and 
 the sum of one dollar aforesaid, and is thereupon to re- 
 transmit the bill so revised to the Local Master or other 
 officer. Chy. 0. 312. 
 
 The Taxing Officer, on revision, may restore items improiierly disallKWcd liv 
 a Local Master ; as well us strike out, or reduce, any ^vhich may li.ivc hetn 
 
TAXATION. 
 
 919 
 
 Rules 
 1210-1213. 
 
 imiiro|)t'i'l,\' allowed, even though in tin- discretion of the local officer : Keim v. 
 Yi'i'lli'i, l> I'- K. 00; Ri' i'dliovtsiin, /{'ihriimii v. RoJu-rlson, 24 Gr. oOf). 
 
 But the Taxing Officer cannot receive evidence to show that costs are jmy- 
 able (itlicrwise than the order awarding tlieni, construed t)y the ordinary rules 
 of construction, directs ; Kriiii v. Vi-fi/i'i/, (J P. K. (JO ; and see Eduuinls v. 
 l>,',m,.n, 3 C. L. T. 504. 
 
 1310. In any such case no sum is l.o be inserted in the j^^^ ?'""rted 
 report of a Local Master or other officer as taxed and tor costs in 
 allowed for costs, until such revision by a taxing officer ; uuui\'fter 
 but in a case of urgency a writ of execution may issue to i''^"'*»°"- 
 levy debt or costs, or both, upon the order of a Judge, sub- 
 ject to the future revision bv the taxing officer, Chy. 0. 
 313. 
 
 1211. Pending a revision, judgment may be entered [!|^'t<?^^ecu- 
 aiul execution issued, unless the Court or a Judge other- cases of 
 wise orders ; and in case of an execution being so issued, maySe. 
 if the amount taxed is reduced on revision, the party en- 
 titled to the costs shall forthwith give notice of the reduc- 
 tion and of the amount tliereof to the Sheriff or other officer 
 in whose hands the execution had been placed ; and the 
 iiraouut struck off on the revision shall be deducted from 
 the amount indorsed on the execution. J. A. Rule 439 {d). 
 
 \(it taken from any English Rule. 
 See lli'k' IL'IO. 
 
 1213. No mileage shall be taxed or allowed for the '^I'lt^ase 
 
 ,. . " T -,1 i /I. not allowed 
 
 service of any writ, paper or proceednig, without an am- on service 
 davit being made and produced to the proper taxing officer, ',',r(!co^''un- 
 statiug the sum actually disbursed a''d paid for such {J^^^^.^'j'jj'^^jjy^ 
 mileage, and the name of the party to whom such payment 
 has been made ; and, except in cases provided for in Hule 
 254, no fees shall be allowed for the mileage or service of 
 writs of summons unless served, and sworn in the affidavit 
 of service to have been served, by the Sheriff, his Deputy 
 or Bailiff, being a literate person (or by a Coroner when the 
 Sheriff is a party to the action), nor unless a return of the 
 Sheriff or Coroner (as the case may be) is indorsed there- 
 on. R. 8. 0. 1877, c. 50, s. 335 ; liule T. T. 1856, 100. 
 
 It Would seem that tlie rule.s in regard to the allowance of costs of service of 
 writs of summons aiii)lv to the costs of serving sul)]Menas : Carti/ v. f'iti/ of 
 
 i-'""Ui, r.i I'. K. -js:,. ' 
 I21!{. All affidavits of increase must be made bv theAfltidavits 
 
 „,i; •. . ., 1 1 1 • ,1 " of increape, 
 
 solicitor 111 the cause, or some clerk having the manage- to bo made 
 
920 
 
 Rule 1213. 
 
 by solici- 
 tor, or his 
 cleric hav- 
 ing maii- 
 ageineiit of 
 cause, or 
 the client. 
 
 Form of. 
 
 Allowauco 
 for maps, 
 etc. 
 
 Costs of 
 witness re- 
 jected, not 
 allowed. 
 
 Witness 
 fees for 
 attendance 
 how 
 allowed. 
 
 COSTS. 
 
 ment thereof, or by the client. They must set forth the 
 sums paid to counsel, naming them, and for what service, 
 the names of witnesses, their places of abode, the place,s at 
 which they were subpoenaed, and the distance which each 
 such witness was necessarily obliged to travel in order to 
 attend the trial, that every such witness was necessary and 
 material for the client in the cause, that they did attend, 
 and that they did not attend as witnesses in any other 
 cause (or otherwise, as the case may be). The number of 
 days which each witness was necessarily absent from home 
 in order to attend such trial must also be accurately stated. 
 If a solicitor attends as a witness, it must be stated whether 
 or not he attended at the place of trial as solicitor or wit- 
 ness in any other cause, and whether or not he had any 
 other business there. The day on which the trial occurred 
 should be stated. If maps or plans were used at the trial, 
 the necessity for them must be shown in the aliidavit, or 
 no allowance will be made for them ; the sum paid for them 
 must also be set forth, and that they were prepared or pro- 
 cured with a view to the trial of the cause. The taxing 
 oflticer is authorized in such case to make a reasonable 
 allowance for maps and plans. Rules T. T. 1856, 165. 
 
 In Me(r<(iinon v. Clarke, i) P. R. o.w, it was held that surveys .-uul plans 
 made to enable witnesses to give evidence, are not taxable between piuty and 
 party ; and cost.s of a preliininary e.xamination of accounts by an accountant to 
 qualify himself to give evidence were disalloweil between |)arty and party : 
 Nolan v. C'o/i'mdv, 8Q. B. 84. The costs of plans and models, etc., nsefnl to 
 aid the Court and jury in coming to a right conclusion may be allowed ; 
 Pihiriiii V. Southmnptoii lO DorchvsUr C. W. Co., 8 C. B. 2o; Batkii v.Ktimch, 
 L. R. 20 Eq. «32. 
 
 \Vhere a witness is rejected at nini prixK, and the ruling of the . Fudge is 
 acquiesced in by the parties, and upheld by the Court, the expenses nf his 
 attendance are not allowed on taxation as between party and jiarty : (InUiiimn 
 V. Kvjiworth, \ti C. B. 228. So, where a witness is rejected by an arbitrator, 
 whether upon a sufficient, or an insufficient ground : Ih. And when witnesses 
 weie subiKenaed by the ])laintiff to attend at a trial which was postponed in 
 consequence of the defendant's default, and the defejidant was ordered to imy 
 the costs of the day ; and at a subsequent trial the witnessi's in ((uestion 
 were examined and their evidence proved to be itumaterial, tlie c(jsts of tlieir 
 attendance at the abortive trial were disallowed as against tlie defendant : 
 Chri.itoplur v. Noxon, 10 P. R. Hit. Tlie costs of a commission to take evi(lence 
 abroad, when the evidence so taken is not actually used at the trial will lie 
 disallowed ; Dominion Co. v. Stinnon, !) P. R. 177. 
 
 When a cause at the assiy.es is over at thi-ee o'clock in the afternoon, 
 witnesses may reasonably be allowed the following day for tiieir return iioine, 
 though their place of residence be distant only about fifty miles, and iiccessible 
 by trains on the same evening: Fri/cr v. .Stiirt, l(i C. B. 218. It is not a 
 general rule that parties, if witnesses, are to have an allowance for tlieir 
 attendance: DoicrlcU \. AiitilmUau Itn/nl Mail HUaia N(tvi<iiiti(>n Cijmii'inii,'i 
 El. & Bl. !I02. 
 
 Witne.ss fees may be ])aid by setting off, with the consent of the witness, tlie 
 sum payable ivgainst a sum due by the party subpd'iiaing the witness, and an 
 
TAXATION. 
 
 921 
 
 affidavit of disbursements describing s\ich a transaction as a jiayment of tlie Rule 1214. 
 witness fees was field to be true : Rr Solicitor, !) C. L. T. So. 
 
 Witnesses are not, in general, allowed for attendancje before the day 
 ai)|M)inte(l for ttie ojiening of ttie Court : set! Hnrvrii v. Dlirm, ](! C. B. 4!t7. 
 But wlien a material witness is going abroad, but is detained on xuliy.nmt, iiis 
 siitjsistence for tlie whole time lie is detained may be allowed : Fnttrr v. 
 Itaiikiti, li. K. 5 C. P. r)l.S ; and the necessary expenses of procuring the 
 attendance of a witness residing out of the jiirisdiction may be allowed : JIk/I 
 V, (.'ivmjiton CiirM-t Co., II P. K. 2hi). 
 
 But under tile Englisli Rule 1002, s-s. !), whicli authorizes the allowance of 
 sncli just and reasoual)le cliarges and exjienses as appear to have l)een properly 
 incuiTcd in procuring evidence ; tlie expense of surveys l)y surveyors to (jualify 
 tlicniselvcs togivt^ evidence was allowed : MdckUy v. CliiUinijiairth, '_' C. P. J). 
 273; and see In re Lii,t>itt(, L. K. 20 Eq. ()50. 
 
 Tlie costs of sending a special connnissioueraliroad to take evidence in a case 
 of a complicated and important cliaracter were allowed : Yijlfnidn v. Koyiil 
 Exclitdiiic .\)iiiurrinc(' Corimration, L. H. ii C. P. 141. 
 
 Till' Taxing Officer may examine into the trutli of affidavits of increase : 
 Biinlfiiii V. Sirit:(r, I C L. Ch. H8. The omission c)f tlm <'hristian name of a 
 witness in tiie affidavit js immaterial : Jfum v. Litxhc?; 24 U. C. <^. 13. 3.")7. 
 All witnesses should hi? paid before taxation, and only the sums actually jiaid 
 are taxahh' ; ///. Mileage for serving Hulipd'iKifi is not to be allowed unless 
 till' service is effected l)y tlie Slieriff or his officer : Mn/c 1212 ; M('L(<ih v. Ertiiix, 
 3 P. li. lol. When witnesses are subpien.aed and paid by l)oth parties the 
 sucoi'ssful party is entitled to recover the costs of such witnesses from the other 
 iiai'ty: /'/. The costs of a witness called to pi'ove facts admitted liy the defendant 
 111 Ills examination for discovery may be allowed: AlcMtmlcr v. (lliiinxsd'r, 11 
 P. li. 157. 
 
 1214. As to costs to be paid or borne by anotber party, 1^^^l^°^^^ 
 no costs are to be allowed wbich do not appear to tbe tax- party and 
 ing officer to bave been necessary or proper for the attain- '"^^'^" 
 ment of justice or defending the rights of tbe party, or 
 which appear to the taxing officer to have been incurred 
 through over- caution, negligence, or mistake, or merely at 
 the desire of tbe party. J. A. Rule 442. 
 
 Identical with Eng. R., Aug. 1873, "costs," R. 20 ; 1883, R. 1002 (2it). 
 
 .\s to the general rule that the costs taxable between party and party are 
 only those necessary to tmable the party to conduct the litigation : see Siailh 
 V. /;»:/,,•, L. K. 1!), Eq. 473. 
 
 Where, under an order directing an account of what was due to a party iu 
 respect of costs of jiroceedings taken to enforce a judgment in the Excheiiner 
 Division, the Taxing Master disallowed the costs of certain alK)rtive garnishee 
 .suninionsHs, it was held that the Master was not precluded by the form of oriler 
 from disallowing any costs he thought prt)i)er, and tiiat, under this ^(^te, he 
 was bimnd to do so : Simmnns v. Stnrci; 14 Ch. D. 154. 
 
 So a clause in an order for a commission directing that costs of the order, 
 coiiiinission and depositions to be taken thereunder, should lie costs in the 
 cause, was held not to ))reclude the Taxing Officer from disallowing the costs 
 when the evidence had not been used : Ihimiiiinn, rtc. v. Slin.s-nii, P. R. 177 ; 
 see l),'l,(ru,jnr v. OM-nho/mc .(• Co., W. N. 1883, 227 ; B<- McMiUnn, 8 C. L. J. 
 2S5. Charges not strictly under the tariff of costs, but for work done which 
 naves the greater exiH'iise of jirocef^ding in the regulai- way, may be allowed 
 whether done between the solicitors, or by one party alime : Torrance v. Tor- 
 nwe, 18 C. L. .r. 223 ; 2 C. L. T. 311 ; !) P. R. 271. ' 
 
 
 " ;"/ 
 
922 
 
 Rule 1216. 
 
 COSTS. 
 
 Copies of i)U'a(liiij,'s wluTe neces.sarv for lui interlocutory motion will Ik> 
 allowed ; Wnnirr v. J/'wsv.v, W. N. ISSl, 135 ; 45 L. T. X. S'. ;«) ; 17 C L .) 
 47!t; r.lCli. 1). 72. " ' ' 
 
 Where by an order allowing the plaintiff to make an anunulmeiit tlie costs 
 were made costs in the cause, it was held tliat the Taxinj^ Officer liiul no dis- 
 cretion under this Jin/r to disallow tliese costs in taxiu)^ the lilaiiititf's costs nf 
 the cause : Kilw<tnls v. J'cur.iou, 20 C. L. .1. !W ; 8 C. L. T. oOt. 
 
 In (Viris/ii/ihi'i- V. .V'),'(//(, 10 P. R. 14'.), a trial was postponed owinjj to (icfciui- 
 ant not having obeyed an order to jiroduce, defendant to )iay the costs rciidcml 
 nugatory by the postponement. The iilaintiif suhiHenaefl seventeen witness^, 
 who were examined at the adjourned trial upon matters which the .lu(lf,'(' lidrl 
 could not be interfered witii by the Coui't. It was held that the'raxintfOtficci' 
 in refusing the plaintiff tlie eoits of these witnesseH did not errotiemisly exercise 
 the discretion given him by this f{>ili: 
 
 See also (iuuilfdhnr v. SlniUli'ir.,i-tli, 3 C. .. T. 105; Tmtln- v. Marhm 13 
 Ch. D. u74. 
 
 Costs of un- 
 necessary 
 f>rocoeil- 
 iiigs not to 
 be taxed. 
 
 Exception 
 in case of 
 taxation 
 between 
 solicitor 
 and his 
 client, 
 wlien costs 
 incurred at 
 client's re- 
 quest, after 
 notice that 
 proceeding 
 innieces- 
 sary. 
 
 Coats 
 
 taxable be- 
 tween soli- 
 citor and 
 
 1315. If upon the taxation of costs it should appear to 
 the officer taxing the same that any proceedings have been 
 talcen unnecessarily, and which were not calculated to ad- 
 vance the interests of the party on whose behalf the same 
 were taken, it shall be the duty of the ofticer to di.sallow 
 the costs of such proceedings, as well on the taxation of 
 costs between solicitor and client, as on a taxation between 
 party and party, unless the officer shall be of opinion that 
 such i)roceedings were taken by the solicitor because they 
 were in his judgment, reasonably exercised, conducive to 
 the interest of his client. It shall not be the duty of the 
 officer, on a taxation of costs between a solicitor and his 
 client, to disallow to the solicitor his costs of such proceed- 
 ings where it is made to appear that s'-.-Ji. proceedings were 
 taken by the desire of the client, : .. »ieing informed by 
 his solicitor that the same were ur • ■ .-vary, and not calcu- 
 lated to advance the interests of ti' ^ • Mit. Chy. 0. 306. 
 
 The costs of unnece.ss.ary affidavits, going into the merits, iil('<l on a iiKJtiim 
 for leave to a]ii)eal from a ]S I aster's report: .Vi^.vA v. li/arci; V} V, It. 'J(17, iimi 
 on a motion to vacate a decree : Id'il/nril v. Tmlil, il I'. K. 154, were disidlowtil. 
 Costs rendered unnecessary by tile slip of tlie soliidtor cannot lie i-ecovcii'il 
 even by tlie .solicitor from his client : Jt< Musufi/, ~[\ L. T, .lour. ;{(il. 
 
 And see Jinli's 1177, 11!I5, lliUi, \,hicii also relate to the disallowance of co.st* 
 of unnecessary i)roceedings. 
 
 The Court does not allow out of an estate costs of proceedings which werenf 
 no l)ene1it to it. See note to Ilu/c !t72, i). 71)!', and /^' Orinston, 58 L. T. N. .S. 
 74 ; 5'.l L. T. X. S. 5!)4 ; 3(! W. 1{. 21(;. 
 
 Where, in an administration suit, tlie jilaintiffs, who were next of kin, liud 
 incurred the expense of .several journeys to examine the books of the estate iiiid 
 make inquiries, etc. : and also of other proceedings in the Master's office, 
 without th(- consent of the creditors who were alone lieneticially intdi'steil.iiim 
 a,fter they knew tliat the estate was insolvent; such costs were disallowed : 
 Be liohcdndii, Riihert.si,}! v. lliilieftsnn, 24 (ir. .555. 
 
 Xotwithstanding tliis /.'('/'■, charges, and allowances, which niiifht very iirn- 
 l)erly be allowed on a taxation between solicitor and client, when the costs 
 
TAXATION. 
 
 923 
 
 i 
 
 lociitorv niotiiiii will !k> 
 l\ N. S. 35!); 17 C.L.I, 
 
 111 iinu'iKluifiit till' costs 
 ixiu!,' ()Hic('r liad iiodia- 
 iij,' till' iiliiiutitf's t,'i)st«uf 
 
 L. 'r. rm. 
 
 stjiDiU'd owiiii; to (iefcml- 
 to i>!iy till' cnstsiviidi'mi 
 lat'd scvt'iitcfii \vitii('s«es, 
 T.s which till' .luilgc liiki 
 (1 that thi'T;vxiiif;()tKc('i' 
 I not crroiii'iiusly I'xi'roiM' 
 
 it should appear to 
 ceedings have been 
 )t calcnhited to ad- 
 se behalf the same 
 i ofticer to disallow 
 on the taxation of 
 a taxation between 
 
 be of opinion that 
 icitor because they 
 cised, conducive to 
 be the duty of the 
 a solicitor and his 
 its of such proceed- 
 ■]\ proceedhigs were 
 
 eing informed by 
 vary, and not calcu- 
 )\iL Chy. 0. 306. 
 
 ' iiii'i-its. fili'd on :i uiiitiim 
 ■. (ilLirr, () V. \l. ■2iu,m\ 
 
 '. K. l.")-l, NVl'VC (lisilllllWfll. 
 
 ritor Ciuiimt lu' rt'uovi'ivd 
 
 L. 'V. .hnn: 'M\. 
 
 o the i]is;dl(i\viiiii'i't)fciwti 
 
 proci'i'diiigs which WW ot 
 /.'(' Oi-iii-stuii, .WL. T. >.i5. 
 
 •ho wcri' iii'Nt (if kin, liii'l 
 thi' hooks of thi'fstiiteiUiil 
 f,'S ill till' Miister's oliiee, 
 ii'iu-fioiidlv interested, iiiirt 
 uch costs were disalliwi'd: 
 
 CCS, which misht veryiw- 
 iiid client, when the codts 
 
 Rules 
 1216, 1217. 
 
 client 
 not iiocefi- 
 siirily re- 
 lieved 
 a^'aiiiBt 
 estate. 
 
 Certain 
 costs tax- 
 al)le be- 
 tween 
 l)arty and 
 jnirty as 
 wonld be 
 allowed as 
 between 
 solicitor 
 and client. 
 
 Cdine out of the jilaintiff's fund, or one in which he is interested, may ucver- 
 tli^less lie disallowed out of ii fund in which he has no interest : Hi. The co.sts 
 of iHvpariii^,' and teiideriiij,' a conveyance before suit are not taxalde as costs in 
 iieiui.se snhsei|ueiitly hrought ; I'liiKjIc \. Mvlhumlil, ~ V. \i. 152; and the 
 aiiKiuut allowed between solicitor and client is not conclusive as to the aiiiount 
 to lie allowed out of the estate : nri.n-ii v. lUirdelt, 37 ('h. 1). J()7 ; 40 Ch. 1). 
 214. 
 
 The mere noii-coiiiuiuiiieation by a solicitor to his client of an offer of settle- 
 liieut does not prove that proceedings after the offer were unnecessary, .so that 
 the costs of them should be disallowed under this Rule unless the offer was an 
 iidvaiitageons one, the accejitaiice of which the solicitor ought to have advised, 
 and it can lie fairly inferred that he did not do so merely to jiut further costs 
 into iiis |)ocket without regard to the interest of his client : He ()'J)(ii<(i/iiii; 12 
 P. K. 1112. 
 
 See Lidiiur v. Smith in note to Jin/c 11!)5. 
 
 1316. Where costs are to be taxed as between party and 
 party, the officer taxing the same may allow to the party 
 entitled to receive such costs, the like costs m are taxable 
 where costs are directed to be taxed as between solicitor 
 and client, in respect to the following matters : 
 
 1. Advising with counsel on the pleadings, evidence, and 
 other proceedings in the cause ; 
 
 2. Procuring counsel to settle such pleadings and peti- 
 tions as may appear to have been proper to be settled by 
 counsel ; 
 
 3. Procuring and attending consultations of counsel ; 
 
 4. The amendment of pleadings ; 
 
 5. On proceedings in the Master's office ; 
 
 6. Supplying counsel with copies of, or extracts from, 
 necessary documents. Cliy. 0. 807. 
 
 This Hulc is not so full as either the Eng. Chy. Order on which it is founded 
 (see Morgan 54,S-5.5()) or the present Kiig. H. {('). Co, r. 27. In couseiiueiice of 
 the omission of sonic such expression as "procuring evidence," whicii is to be 
 found ill the Hiig. (). and Rule, no sum can be allowed between party and party 
 tor [liiymeiit to a scientific witness to get uj) a ca,se : nfv Mc>iir>iii(iii v. C/crke, 
 il r. K. 555. A reasonable sum is taxable in Kngland ; see Saiilli v. lUiller, 
 L. R. l!t E(|. 473; Cinirtiui v. Fniirii, 15 W. K. 55!t ; Murhleif v. ('/ii/liti</- 
 "■"rth, 2 C. 1'. 1). 273 : Wiiulhun, v. Il<iittt<,„, 21 (^ B. D. 111!). 
 
 Charges for procuring cojiies of opinions of Judges in another action wiiich 
 were of assistance to counsel were disallowed : Phitt v. ^'. T. lOi. di., VIV. K. 
 
 1317. The table of costs set forth in the Tariff A ap- Tarift- of 
 pended to these Eules shall be that according to which all ''"^*'" 
 costs in civil actions in the High Court and in the County 
 Courts shall be allowed and taxed, and no other fees, costs 
 
 
924 
 
 COSTS. 
 
 •«^ 
 
 % 
 
 tA 
 
 ^^-^ 
 
 ^ 
 
 ^l\i\-i °'* charges than therein set down shall be allowed in respect 
 of the matters thereby provided for. AV?<'. 
 
 Taken from the heading' of tlie fiinncr tariff : see J. A. Rule u{ Sept. ISM, 
 Maclennan Jtul. Act., 2ii{l Kd., i)|). 573, 5(12. 
 
 The tariff is substantially that previously in force. 
 
 Tariff of 
 disburse- 
 ments. 
 
 I|j^rt^<//^ /-"v 
 
 131.S. Tiie fees and disbursements payable in stamps or 
 otherwise upon pi'oceedings in the High Court and the 
 Court of Appeal shall henceforward be those enumerated in 
 the Tariff 13, annexed hereto. New. 
 
 In addition to the fees prescrilied by the Tariff, there are also certain fn- 
 whieh are i)ayable unfler tlie express provisions of certain A'"/. w, 1.7., imd-r 
 liii/t' 103.5 a fee of -SH is ))ayalile to the Inspector of Titles, and under /,'//M(h;| 
 ii fee of !Sl is payaljle to a Sheriff for a certificate of render by Imil of thtir 
 lirincipal. 
 
 Tliis tariff substantially consolidates those iJreviously in force under J. A, 
 Rule 432. ' 
 
 < /- 
 
 ^A'//3.<<r'^/<l^ 
 
 V A^y fy^^ "'^ /\ *y* ' 
 
 Lower 
 scale. 
 
 Partner 
 sliip. 
 
 Mortgage 
 suits for 
 
 13I1K The fees and disbursements mentioned in the 
 2nd or "Lower Scale" column of the tariffs A and B, shall 
 be the raiiounts taxable in respect of the services or matters 
 there enumerated in all actions where equitable relief is 
 sought in any of the following cases : — 
 
 "(1) By a person entitled to, and seeking, an accomitof 
 the dealings and transactions of a partnership dissolved or 
 expired, the joint stock or capital not having been over 
 $800; 
 
 "(2) By a legal, or equitable, mortgagee, whose mortgage 
 
 foiedosure has been created by some instrument in writing, or a judg- 
 
 01 bale. i^Qent creditor, or a person entitled to a lien or security for 
 
 a debt, seeking foreclosure or sale, or otherwise, to enforci' 
 
 his security, where the sum claimed as duo does not excetl 
 
 $200; 
 
 "(3) By a person entitled to redeem any legal or equit- 
 able mortgage, or any charge or lien, and seeking to redeem 
 the same, when the sum actually remaining due does not 
 exceed $200 ; 
 
 "(4) By any person seeking equitable relief for, or by 
 reason of any matter whatsoever, where the subject matter 
 involved does not exceed the sum of $200." ^nv. Sc 
 J. A. Eule 515. 
 
 This Rule, is based upon the jurisdiction formerly possessed by County Courts 
 imder C. S. U. C. c. 15, s». 33-35. The question of the scale of costs \naclm< 
 involving equitable claims formerly depended (under .1. A. Rule 515) uf"iii 
 
 Rodomp- 
 tiou. 
 
 Equitable 
 relief. 
 
TAXATION. 
 
 925 
 
 e allowed in respei.t 
 
 J. A. Rlilrof Scpt,,lHM, 
 
 lualy in force under .1. A. 
 
 wliither the action mijfht (before the abolition of the equity jurisdiction of the Rule 1219, 
 
 Cmiiity Courts by the Law Reform Act of 1H(W) have In^eii Immglit in a Comity 
 
 Cmirt : lirai'tili v. linintjurd, 25 Gr. 43. The County Courts had no jvirisdic- 
 
 tiim amlcostson tlie hifjlier scale were therefore taxable where defendants within 
 
 tlif Province did not all resi<le in the County: MclAcd v. Milhii\ 12 (ir. 
 
 IIU; liniililnlir V. Cirtllt I'dllei/ I!//. Co., o V. \i. 41() ; A'c /-//"/(.<, 10 1*. K. lolt; 
 
 ■iiid wlirrc service out of the jurisdiction was necessary ; l.nifrdsim v. Fi/rj/cmltt, 
 
 ii(ir. 371 ; 'S/,'V/.y V. Skrlli/, 1.S (Jr. ■IDo ; .So,/t v. liinii/unii, 1!) (4r. 238. 
 
 I'lidtr tlie i)reseut liiile these cases iiave no apjilication and the (jiiestion of 
 tliescalc of costs is made to depend upnn tlie amount of the plaintitf'is claim or 
 tlif auumnt involved in the cases specilied. 
 
 The Rule does not apidy in the following cases : 
 
 Partnership Cases. — Wiiere the i)artuership had not dissolved or exinred : 
 lllmiiii v. .\f( <<riil/i, 1) P. K. 417, unless perliaps the cas(^ conies within clause 
 
 (4)oftlicii'»/f. 
 
 Mortgage, etc., Cases. — As was the case under the i>reviouH ])ractice, though 
 the aiiioinit due ])laintitF is less tlian .'?2(H), if there is a sul)se(|uent incumbrancer 
 tuHiujiu more than that sum is due : Hiiukhi v. 11"(j/s, 11 (Jr. 202; Sint/i v. 
 .1/.7//"//, 2 Chy. Ch. i»3 ; see also MilrhvH v. Martin, 2 C. L. .1. 24!) ; since The 
 I'mJi/iim' J{clifjWct, where in an action by a judgment creditor to set aside a 
 frandident conveyance, the claims of all execution creditors together exceed 
 .S'j(H); llnminiiiii Honk v. J/i'j/'cniKni, 11 ]'. ]{. 504 ; if there isbutone judgment 
 creditor, and to him less than 8200 is due, tlie Jli'lc apjilies, no matter what 
 may lie the valui^ ui the property fraudulently conveyed : Fur rest v. Laijaick, 
 18 (Jr. (Ill ; McKnu v. Mwjee, 13 V. K. 10(1, 14(). 
 
 Equitable Relief Generally. — The mortgagees after exercise of a powerof sale 
 ilaiiiied that 81^2.01 was due them, but (ni accounts being taktai S20.07 was 
 finmd due to the mortgagor. It wa.s held that costs awarded tile mortgagor 
 Were pro] lerly taxable on the higlier scale, as S182.()l + !?20.07 was involved : 
 .l/-.)/"« V. liiuiultiin Prov. tO L. tSury. 10 V. K. ()3(), aftirmed by tlut Divisional 
 Ceurt, 11 P. K. 82. 
 
 It is iirojier practice to obtain a direction of a Judge as to the .scale of costs 
 Ufure they are taxed : JhniiiniiDi Jiank v. J/cf/eniHiii, 11 P. K. 504; but the 
 Taxing (Jtticer is to tax according to the lower scale wherever it is applicable 
 without any express direction : Jirinnjli v. Jiruntfurd, 25 Gr. 43. 
 
 "Subject 
 matter in- 
 volved." 
 
 On a bill filed by a mortgiigor for an account, where the mortgagee had exer- 
 ci-ed his pdwer of sale and realised i*350, and cm taking the account only $130 
 was found due to the iilaiutiff, it was held "the subject matter involved" was 
 tlie.sSaO, and th(> jilaintiff was therefore entitled to costs, on the higher scale : 
 yhdininiililii V. ilrillin, 20 Gr. 81; lUniUon v. Rnu-laml, 4 Ont. 720; Re 
 l.iMt", 10 p. K. 150 ; 20 C. L. J. 33 ; Murton v. llnmilton- I'xividml L. ,S,ici/., 
 10 P. R. 03(1 ; IIP. R. 82 ; but see Lciiarir v. CnHui/a Loan .(• Bi/. Co., 11 P. R. 
 ,Ai\ liivttii \. O'Vi'iniiir, 5 Ont. 747; and where, besides a money demand Injunction 
 «itliin the jurisdiction of the County Court, the jdaintiff claimed an injunc- 
 tion, and to have certain fences erected and maintained the costs were allowed 
 on the higher scale : Jinunjlt v. JWantfcrd, 25 (Jr. 43 ; and .see MrDnndl v. 
 MhUmi ,(• Loan Assoc., 11 P. R. 413. And in a suit by a purchaser for specific 
 liei'foniiance of a contract for the sale of land for a suui under $150 ; but before 
 suit the plaintiff had entered and improved the land and increased its vahu^ to 
 more than l«;2l)0, it was held that "the subject matter involved " was over 8200, 
 and higher scale costs W( n; allowed : Kvnncdii v. Jirown, (> P. R. 318. 
 
 In a suit to enforce payment of an annuity of which only 8100 was found in 
 arrear, higher scalu costs were allowed : Looney v. Cairns, before Boyd, C., 14 
 
 January, 1885. 
 
 A nieehaiiics lien action, where the plaintiffs claim 8142, but the aggregate 
 amount of liens against the property is over 82(X), was held pro])(>rly brought in 
 the High Court, and costs on the higher scale were given, although' the plaintiff 
 alone substantiated his claim : Hall v. I'ilz, 11 P. R. 4ti); but see Truax v. 
 ^'■'•v«, 13 P. R. 279. 
 
 i Specific 
 I iierforui- 
 , ance. 
 
-p fpppf? ^'"^ 
 
 92(i 
 
 COSTS. 
 
 % 
 
 
 
 ^ 
 
 Partiior- 
 
 sliij). 
 
 Ajjplicii- 
 
 tioii of 
 
 former 
 
 practice. 
 
 Rules 111 an actidii for ill('(fal distrcsM niidcr tlic distrfsM dauHc in a iiiortp ibi' f, r 
 
 1220-1222. .«(2,30(), ))>• whidi k.mkIh to tlif value of ><W2.rC> liad hfcn distrained, it washcM 
 
 not to ht" a uase unflcr tliis Kii/r ■ Mrlhuull. v. Jiin'h/im/ ,{■ Lmin i,s,,i it 
 
 P. R. 413. " " 
 
 To actions for a partncrsliiii account tlie lower scale applies only where the 
 j)artnersliip has dissolved, or expired. An action, therefore, fur dissolutiiiinif 
 
 a |)artnei'sliip would not ) ne to which the l()W{!r scale would apply unless it 
 
 could lie liroujfht within suV)-see. 4 of this I'lilf, and see lilniicii y.' Mrfimili 
 !> 1'. R. 417. ' 
 
 1S90. The practice of any Court, whose jurisdiction is 
 vested in the Higli Court of Justice or Court of Appeal, re- 
 lating to costs, and to the allov,a.nce of the fees of solleitorB, 
 and to the taxation of costs, existing prior to The Ontam 
 Judicdture Act, 1881, shall, in so far as they are not incon- 
 sistent with the Act and the Rules of Court remain, in force 
 and be applicable to costs of the same or analogous proceed- 
 ings, and to the allowance of the fees of solicitors of the 
 Supreme Court and the taxation of coats in the High Court 
 of Justice and Court of Appeal. J. A. Rule 445. 
 
 This corresi Minds in substance with Eng. R. Aug. 12th, 187"), R. 28; 1883, 
 O. (io, r. 27 (37). 
 
 See I'rhi'ih: v. Uloau, 10 Ch. D. (57(5. 
 
 Miih's i'A and l(i8 of T. T. IHoO, and the jir.actice under them not inconsisfnit 
 with the J. A., are in effect (ireserved in force by this /:iilc, and under siidi 
 jiratitice the Taxing Officer may allow what is reasonable for )ivociiiiiiB the 
 attendance of foreign witnesses : /Sc/I v. Cnuii/iti')! Cnrxr/ Cc, 11 1'. R. 251). 
 
 1321. The solicitor or party instituting any action or 
 ■ pi'oceeding, in respect of which he claims to pay the fees of 
 Court, according to the tariff referred to in Rule 1219, is to 
 file with the officer in whose office appearance is required 
 to I ;• entered, a certificate in the form No. 211 in the 
 Appendix, of which certificate the said officer is, tat the 
 request of any solicitor or party acting in person in the suit 
 or matter, to mark a copy. Chy. 0. 554. 
 
 This Rule is directory, and the omission to file a certificate docs not entitle a 
 defendant on dismissal of the action, to higher .scale fees, except for fees of 
 Court actually paid by him : Fcn/i'son v. Ri/tledr/c, 18 (4r. .'ill. It applies 
 only where the plaintiff admits that the lower scale is ajiplicable. I'riinajadt 
 in every action commenced in the High Court of Justice, the fees of Court are 
 payable according to the higher scale. 
 
 The certificate should be filed on the issue of the writ, with the officer in 
 whose office the ajipearance is to be entered. 
 
 on^profbic- 1223. Ou productioH of a copy of the certificate, the 
 of cevtitt-'^ officers of the Court are to receive and file all papers and 
 scaiVf^s' take all necessary proceedings upon payment by stamps, or 
 cha'rgod. otherwise, as the case may be, of the proper fees, according 
 to the said tariff. Chy. 0. 555. 
 
 Certiflcate 
 to be filed 
 ou Institut- 
 inR action 
 where 
 lower scale 
 tariff is ap- 
 plicable. 
 
 Ihile is 
 directorv. 
 
TAXATION. 
 
 927 
 
 ll/l/lllll ll' /.nun As 
 
 f. 12th, 1875, R, 28; 1883, 
 
 le writ, with the officer in 
 
 Wlicro fees 
 liiivo bi'oii 
 |)ni(l iic- 
 cordiiif.; to 
 lii^lier 
 scale, ox- 
 cossniay be 
 lUlowc^rl. 
 
 1333. Ill every case certiirid for the said tarilV in which 1223V26 
 it mayliappen that the solicitir. hecomes entitled to charge wiuto 
 iintl bo allowed according to the ordinary tariff, the deti- ',;p,',;'^,'j;" 
 ciencv of the fees of Court is to be made good. (Uiy. C). HciUf mtur- 
 
 000. Bivon. 
 
 liy tliiMVords "ordinary turiff" it is iircsuiiiiMl tlic hiKli'i' -I'iili' of costH in 
 intended. 
 
 It apix'iirs hy this /!iih tliiit tiic Court is not lioiind l>y tiic iil.iiiititrs idiiiin to 
 lirin^'liie mitioii (indcr the lowk'r scale, liut may iiwiinl costs jiccordint,' to the. 
 scale |ii'(i|)frly apidicalih'. 
 
 It Wdidd scciii that tiic (Icficicncy to he made g(Kid under this /.'/'A, is thu 
 (litfeience in the fees of Court wiiich liave been previously paid inidcr thu 
 lower scale, ami the amount wliieh should have been pui(. aeeordiuj;- to tiui 
 liij;lirr ^cale, l)y the i)arty to whom the lii),'lier scale costs are awarded. It 
 would nut seem to include the deficiency in fees paid by the opposite party, 
 and even if it did, tiierc seians to lie no means of enforcijif,' the payment of the 
 
 (lelieiency. 
 
 1!334. In any case in which the fees of Court have been 
 paid, according to the ordinary tariff, and in which it may 
 happen that the solicitor becomes entitled to charge and be 
 allowed his own fees, only according to the lower tariff, the 
 excess of fees of Court so paid may be allowsd upon the 
 taxation of costs, if the circumstances of the case, in the 
 judgment of the taxing ofticer, justifv such allowance. 
 Chy. 0. 557. 
 
 In tliis 7?H/r, as in the last, by the words "ordinary tariff" it is presumed 
 tile higher scale of costs is intended. 
 
 This lliilf provides for the converse of the ease co\ ered l>y the preceding 
 Riilt- \\y, ; where the party awarded costs has ))aid fct's of Court ucconling to 
 the hi(,dier scale, and is only awanled lower scale costs. In such cases tliecxtra 
 (lishursenients may he allowed in the discretion of the taxing officer. 
 
 1335. Where a seal is under the 126th section of the 
 Judicature Act, impressed on any document which before 
 the passing of The Ontario Judicature Act, 1881, did not 
 require to be sealed, the fee of fifty cents mentioned in the 
 15otb section of "Tin; Judicature Act,'' shall not bo pay- 
 able on such document. J. A. Eule 503. 
 
 This Rule was ))assed to ptw'ent the fee of .")() cents payable under sec. 1.5.5 of 
 the .Act for the seal of tlu- rV)urt, from being payable on ordinary tilings on 
 which nuder sec. 12(i the seal is to lie inii)rcsse(l. 
 
 1336. When a client or other person is entitled to the solicitor 
 delivery of a solicitor's bill of fees, charges and disburse- taxation! 
 inents, or a copy thereof, the bill or a copy thereof, as the 
 
 case may be, is to be delivered within fourteen days from 
 the service of the order. 
 
 See R. S. 0. 1887, c. 147, sec. 39 printed infni. 
 
 No fee for 
 seal wlicn 
 impressed 
 on docu- 
 ments not 
 formerly 
 re<]uiring 
 to be 
 sealed. 
 
 
irj'^>''^X^mx* IJT 
 
 928 
 
 COSTS. 
 
 t 
 
 
 ^ 
 
 Zt 
 
 ^ 
 
 Rule 1226. („) The bill (lolivercd shall be referred to the proper 
 iMnster for taxation, and on the reference the solicitor k to 
 give credit for all Hunis of money by hira received from or 
 on account of the client, and is to refund what, if anytliiug, 
 ho may on such taxation appear to have beeji overpaid ; 
 
 'I'hi'Hc flircctionH refer onlv to iiidiieyH received in resjieet of tlie liiiHincsH for 
 wllifli the liill wns rellileni), iinle--s tliel-e wiis Hpeciul iiKlceliiellt : we Jaiii'ii v. 
 Jdiiiis, 1 Mcliv. ;}()7 ; /.'' Siiiilli, 4 IJeiiv. iSOlt; 1) JJeuv. \^2 -, ('tintiei' v. Kuwi 
 
 •2 I'll. :«iL', ' 
 
 (/)) The Master is to tax the costs of the reference and 
 certify what shall be found due to or from eithei' party in 
 respect of the bill and demand and of the costs of the 
 reference, to be paid according to the event of the taxation 
 pursuant to the statute ; 
 
 The H.S. (). c. M7, H. ;i"), |>rinterl iiif'jii in note]). 'M'.\, is tlu' .Statute rci'.rred 
 to. It ni!il<es th(^ coHts of tile reference dejiend ni>on wlietlier a Hixtli jmrt in 
 taxed off tlie liii:. 
 
 (c) The solicitor is aot to commence or prosecute any 
 action touching the demand pending the reference without 
 leave of the Court or a Judge ; 
 
 (d) The amount certified to be due shall be paid fortluvith 
 after contirmation of the certificate by filing, as in the case 
 of a Master's report, by the party liable to pay such 
 amount ; 
 
 (c) Upon payment by the said client or other person of 
 what (if anything) may appear to be due to the solicitor, 
 the solicitor (if required) is to deliver to the said client or 
 other person, or as he may direct, all deeds, books, papers, 
 and writings in the said solicitor's possession, custody, or 
 power, belougiog to the said client ; 
 
 (/) The order shall be read as if it contained the above 
 particulars, and shall not set forth the same, but may con- 
 tain any variations therefrom, and any other directions 
 which the Court or Judge shall see fit to make. See J. A. 
 Eule 443. 
 
 There i.s no corresponding Rule in Enplimd. Tlii.s Jinje oontiiiiis tiie 
 provisions which ])revi(,nsly thereto it was usual to insert in an order for 
 the taxation of a .solicitor's bill. It will not now be proper to insert tiiem an'l 
 the order will be read as if it contained them : see clause / and h'i'l'' 1227 ; but 
 it may contain any variaticms or additional directi(«u' Form No. 44 in the 
 Ajjpendix, is the ionn of order to be used in such cases, and sliould be adliered 
 to ; He ,%ilicU(i):s, P. R. !»0, is n(jt to be followed. A direction for payment ni 
 21 days was formerly inserted in orders issued in Chancery, but sliould not 
 now be ir- jrted : Jie Clarke, i) P. R. 1<»7 ; Miuihuudd v. I'lper, 10 P. K. 580! 
 
TAXATION. 
 
 929 
 
 t,'vRfA.li.i^<^'I>- « I'. H. l-<>. The (niltr iiiiiv, luiwi-vcr, in a proiMi- turn' Rule 1226. 
 ifHtii)iin<if rctiiiiirr iiiul lU'glijfciu'i' : Milliir v. C/itii, 12 i*. |{. 15"). 
 
 Wlicif an iinlir liuil hci'ti iiiiulf for taxiitioii iiiid (lirci'tiiiK tlif siiiicitor to 
 iluiid wlint if aiiytliiiiH: had Ih-cii ovcriiiiiil, ii sii|)sf(|iicnt. express order for pny- 
 Mint iif I 111' liiiliilice found due to tlie client 1)V tile .Muster's ifpul't Was lield to 
 » |,n,|«r : A'. A7/e./, 1,H C. L. .J. 75, US; 2 Cl L. T. KM. 
 
 
 1 17, ss, ,'U and H2 arc as f illows 
 
 li. H. O. 
 c. 1 17, H. .11. 
 Solicitors 
 lo deliver 
 their bill 
 (inu month 
 l)((foro 
 l)rinKint,' 
 action for 
 costs. 
 
 )V a letter 
 IKl, s. :«. 
 
 sijfned 
 : IiKi/f V 
 
 V acconijianied 
 1{. .S. (). Is77, c. 
 
 liy himself, and at tlie 
 .\lcCiitvli(Ui,\-2il 15. 1). 
 
 iif aliode, or has lieen enclosei 
 ill like manner, refeirin^,' to sucli In 
 
 Till' iissi),'iiee of a solicitor may lieliver a liill 
 '\|iinitiiiii (if a month niavsnefor its recovery 
 MN ; Imt see AV Wiint, -'H I'U. 1). 71!l. 
 
 Xniu'tioii can usually he hi'ou^jht on a solicitoi''s hill of costs until a month 
 sfter it liaslu'cn delivered, hut the want of an alle^'atioii of a delivery of the 
 liill ill a statiiiient of claim, is not a f,'r(nnid of demurrer; Sntiii v. l)uck<tt, Ii 
 Out. .')■'• ; ami a solicitor may sue in respect of the hill of costs tfi set aside u 
 IraiKJiili'iit ciiincyance hy his client, even hefure the lapse of the month : lb. 
 
 Whirc the hill deli\fre(l does not set out the items, an action on it cannot he- 
 iiiiiiiitaiiii'd : WUhiiiKiin v. Sumrt 'X\ \,. 'V. N. S. 57S ; hnt where some itcm.s 
 si'c |ii'(i|i('rlv set out, and others are not, the former may lie recovered : lilack v. 
 ikmuii, .Si J,. 'V. X. S. \'M). 
 
 Kiir the form of jud^fment in an action on an iintaxod bill : .sec R< Park, 
 lU, V. /',(,•;, 11 Ch. 1). 32C.. 
 
 "if. rpi 111 the application of the party chargeahle by such bill witliin the 
 mmitli tilt' Hijfli (!onrt or a Judgi' thereof, or a .liidye of a County Court 
 >liall, witliiiut money heinjj^ brouffht into Court, refer the liill and the demand 
 iliBri'iinto he taxed hy the proper otficer of any of the Comts in the County in 
 "nidi any of the business charged for in the bill was done, and the Court or 
 ■'iidgc iiiaking such reference shall restrain the bringing any action for such 
 'liiuaiiil iH'udiiig the reference. R. S. (). i>S77, c. 14(t, s. S.i." 
 
 Pursuant to this section a solicitor'.s bill naist be taxed in the County in 
 "inch the work was done : Jir So/icitor, 2 C. L. T. lOtl ; Br Ii/iiii/tou .(• Micklr, 
 ^ I'. K. ."itjli; hy the [iroper officer of any of tin? Cinirts in the County in which 
 "lycf tlie hiisiiiess charged for waH done. The word "Court.s" in the section 
 ' !!<■» iiDt iiuaii l)ivisions of tlu! High Court, and a /irwcipr order is.sued tmder 
 'mUnh may he issued liy, and reference directed to, eitht^r the Deputy Clerk 
 "I' L(ic«l Master for the Oounty in which any of the bu.sine.s.s charged for wa.s 
 
 ' iliM • Pil'lul^tt. nr.il: lo'i) T> iin 
 
 ^ 
 
 I?, s. o. 
 
 c. 147, R. .'iZ. 
 Taxation 
 of costs. 
 
 Where 
 taxation to 
 be had, 
 
 Re ri„t^,i- IVUlimiM, 13 P. R. 110, 
 
:>«: >/-tii>':<< }::';S'> 
 
 930 
 
 COSTS. 
 
 Rule 1226. atKriiicil, L'li C. L. .1. ISS ; 10 C. L. T. !)H. Where, lujwever, the onler for tay. 
 atioii i.s taken on imiri/ir, the right to niinie the |)lace of taxation seems i., 
 belong to the applicant, sul)ject to the provisions of .sec. ',i'2. If tiio plat,. 
 niinieci in a ///vrcZ/zr order has l)eeii unreasonably chosen, tlic opposite party 
 may possibly h.ive a right to apply to change it : Itc Solieit'Ji; 7 I'. H, 2(i3. 
 
 Where a taxation is onlererl after action brought, the right to dispute tliM 
 retainer has been reserved : A'( (Iran, 7 1'. li. Hit. 
 
 Wlu-re an action has been brought and thfc defen(Lut does not dispute th- 
 retainer, but asks for a taxation of the l)ill, the .solicitor i.^ entitled to judi'inwi' 
 for the amount allowed on taxation. As to the form of judiraient ^t'it li" hirk 
 Coif V. P'trk, 41 Ch. 1). 3:.'(). 
 
 Dolivevy of 
 bill. 
 
 What billa 
 may 1)0 
 tRxeil. 
 
 A bill must be delivered liefore it can bo referred for taxation, lif Ecdn (i 
 U. C. L. .r. i")!). If none has been delivered, and the client desires to have the 
 solicitor's charges taxed, he may ol)tain delivery oi a l)ill under K. .S. U. W, 
 c. 147, s. 3!(, which is as follows : 
 
 Where no "3!*. Where no bill has b 'en delivered, .sent or left a aforesaid, and where 
 bil' deliver- Huch bill if delivered, sent or left, might have been referri'd as aforesaid, any 
 ed, 1^0"''^ .such Court or Judge may order the delivery of a bill, and may al.Ho order the 
 mav oi-der 'l»'li\'"i'.V ui) of deeds or pipers in the i>')ssession, custi),ly or power of thesHJi- 
 delivary of citor, his assignef! or representatives, in the same ma-ner as lias heretofore 
 bill and of been donii in cases wdiere any such business had been transacted in the Court 
 papers. in which such order was mad(!. H. .S. O. 1«77, c. 140, s. 40." 
 
 The Court has power under its general jurisdiction to order the taxation of 
 any bill relating to ( 'ourt business, whether the bill be of the solieitor or his 
 agent, or any part of such bill : l{f Johiwni i(' Wcnlln nt//, 'M C'ii. I). 4;)l); though 
 the princiiial rectdvinl payment by a commissi )n ; lir /iluiiit^m v, Mi,'kl(,)i 
 V. K. 5(>() ; and upon sucli taxation a Master should, withoiit spi^ciliodirL-cdons, 
 regard any settlement with the s(dicitors : Ih. 
 
 A bill for counstd fees exclusively may be referred : /.''■ ''. A', (t C, (J P. R. 
 22ii ; and see also /{i' A-<hhiiii;ili, 10 C. L. T. ;>(), where the services were resi«t- 
 ing the defence of a [)risoiier. 
 
 A bill for conveyancing onlv cannot be referred: /fr /.rmmi il' Pttermn,)) 
 \J. C. L. J. IfS."). But see /,'<• J'oflanl. 20 q. 15. I). 1()0 ; Rf (f D.mnknf <(• ll'ur 
 m'M, 4 P. H. 2li(>, wdieri^ solicitcu's were ordered to deliver a hill of costs 
 respecting business not done in Court : and see lie Kichiinl.tnn, 3 t'hy. Ch. HI, 
 
 Where a sidicitor has funds or papers of a client in his possession, and 
 claims a lii'u, an order for taxation will bi- made, thouirh the services for which 
 the solicitor (daims have been wdiollv in County Court proccH'dings : /ic Priiic, 
 3Chy. Ch. 2S2 ; and see Jtr M. <;. ('<imn;„i, I'iUiy. Ch. 35(i. 
 
 A client who is nr^idy a nominal plaintiff, his name lieing used for conven- 
 ience, and who is not resp msilde to the solicitor, is not entitled to an order fur 
 taxation : Itf Attonu iiif, tJ L'. K. 31!). 
 
 R. S. (). 1S87, c. 147, s. 33, is as f.dlows : 
 
 "33. In case no apjdii:i.tion is made within the mouth, tlieii the ('ourt i 
 Judge upon the application of tdtlKU' .party may order a reference with sum 
 directions and con litions as lie mav deem proper; and may upon such tenii- 
 as ma.y be thought .just restrain any action for such demand peiuliiig tiiertli'i 
 application eiice. li. H. (). 1.S77, c. 140, s. 3-1." 
 ot either 'l'l,f, month is a cah'ndar month : see U. S. (). c. 1, s. 8 (1.")), and istoliccoiii 
 
 party. pnted t!xclusiv<dy of the day on which the iiill is delivered, and theday onwhicli 
 
 the order was applied for : see AV A/(ir/)lii/ tV K< ri; 2 Chy. Ch. ofi. 
 Ordorwhen Where a bill has been ihdivered mon; than a month, the client cannot^ohUm 
 ol)taiiiod a^privci/ir order, l)ut must apply in Chambers : Ite lionllbrc, '1 Chy. Cii. ^iS. 
 
 After the la|>se of the montli the s(dicitor is entitled on an e.i- parltxmiww m 
 Chambers to an order for taxation : Iti Siiliritor, 7 L'. li. 2(13. An order isn't 
 granted r.r, imrtr to a scdicitor where any of the facts lie in dispute between hiin 
 and the client, and it is his duty to disclose any such dispute : Re Fit(h, 'itii.'' 
 Ch. 288, and R( C. ,(• L., loC. L. ,). l,3!t. 
 
 K. S. O. 
 
 c. 1 17, s. 3;t. 
 Court or 
 .bulge nuiy 
 order bill 
 to lie re- 
 feil'tid on 
 
 on itrivcipc. 
 
T 
 
 TAXATION. 
 
 931 
 
 ijwfvcr, the order for tax- 
 ilacc of taxation seems ii. 
 of sec. ;V_'. If tlio \iW 
 lioscii, tlic opiiosite pattv 
 SoliciOn; 7 I'. K. 2(;3. 
 tlio ri^lit to (lisimte Av 
 
 Utit does not dispute thi- 
 tor in .utitlfd to judgmen! 
 I of jiuiuiiicnt Ht't) R- I'ark. 
 
 I for taxation, /^ Eccln,\i 
 Ls client (Ifsircs to luve the 
 a hill uiulrr |{. S. 0. 188?, 
 
 I'ft a ■ aforesaid, and where 
 
 II rcferriMl as aforesaid, any 
 )ill, and may also order the 
 ito.'lv *>r power of thesi)li- 
 
 ina-'ner as has heretofore 
 un transacted in the Court 
 10, ». -to." 
 
 on to (jrder tlie taxation ol 
 U lie of the solicitor or his 
 Mni//, H'C'li. 1).4:W; though 
 . ; He ldiii;it:iii. V. .\lidlt,i 
 !, 'without tii)eciti(! direcdons, 
 
 red: A'-' ''• A', .t C, GP. R. 
 
 ire the sorvici's were resiwt- 
 
 ed : /^' Lfuiuti ,(■ P'tmmyii 
 Kin • Ii>' O'D'iti'ikne <f lli-T- 
 1 to .leliver a hiU of co* 
 «(V/i'(n/.so;i,;U'liy. Lli. Hi. 
 
 lient in his l">ssessio«, and 
 ,l,nu./h the serviees for which 
 ,urt pvoeee<lings : lie Pnm, 
 y. (Jh. ;?•■)(■>. 
 
 uuuc Imins use;l for coiTO- 
 is not entitled to an order [or 
 
 month, then the Court. ■• 
 
 order a reference with *:i 
 
 and nuiv npon such tem- 
 
 chdeniand pending thereto 
 
 1 s 8(i:)), and is to be com- 
 .liven.d,andthedayonwk!i 
 
 ,/■, -JChy. Ch. ■)(). 
 
 ,,u,th. the client cam.otobtin» 
 
 ',. lloHltbff, -1 Chy. Ch. .)8. 
 
 7 I' U. 2i\X An order isn^ 
 .(.tsiieindispiaeWtwe.^^^^^^^^ 
 such dispute :*i'M^Wy 
 
 The common order oidy is obtained tm /nrt'cijic, or on such r.r paj-tr ^notion, Rule 1226. 
 notice 'inist be ^'ivi'U if a special order is recniired : /'«' Athinsnn v. Pcjl'','!, 1, 
 Chy. Ch. 11S7; as foi' instaiico to tax part of a liill : Ji( Jii/rrli, <S lieav. 121; Jir Conimou 
 Jnfiitucii <t' Wi'i>fhi'rnll, 37 Cli. JJ. 438 ; or when^ tiiere is a special agreement as to ordor. 
 retainer : Itr Tli nriidod, ]!) JJeav, Tj-H ; or where apjdication is made by some only 
 of sever;, i jointly liable : Ik JIdi rtmi, 33 Beav. L!01 ; secitg, where they are sever- 
 ally liable': J{>' J/t'i,; 10 IJeav. 187. 
 
 I'nder tlie common order the Taxing Officer has power to investigate and 
 dispose of (inestions of carelessness, improjiriety .and negligence in the conduct 
 (if the Imsiness to which the bill relates; am' the officer's cei'tificate, unless 
 appealed against in iiro))er time, is conciusive as to all matters within his 
 jurisdiction : y^• .!////</■, Mi/litr v. Cliiu, 12 V. R. lo.j ; Er K<rr, 2!) (!r. IS.S, and 
 K. S. ()'. e. 117, s. 4S. 
 
 Whetiier nndei' the common order by the client the Taxing Officer should 
 d'sallow all items wiiich appear to be Statute barred, ([uvrii : see ('"rircii v. 
 ;!////./',■,(, -12 Ch. 1). 424. 
 
 Tlie order to tax may reserve (piestions of retainer and negligence in a jiroiier 
 case ; Hi Mil/nr, MHhir v. Clini, 12 1'. R. loo ; in such case asjiecial a|>i)licati(>n 
 would be necessary : but see lie TotUn, 27 U. C. (^ H. 44i), wher(> it was hidd 
 tiiat without consent the right to dispute the retainer camiot be reserved. 
 Tlie luaetice is different in England iinder (i & 7 Vict. o. 73: but see also /ff 
 Jiiicon, 3 Chy. Ch. 7!) ; lie Ti„n«, Ih. 204 ; Re Lori^, !) U. C. L. .1. 81. 
 
 Where there is no retainer in writing, a'.d it is disputed, weight is given to 
 the denial of the elituit : Hi' Ecchit A- Cirroll, 1 Chy. Ch. 2()3. 
 
 It is held in England that under the common order obtained by the .solicitor, 
 the client mev object to every item on the ground of want of retainer : Jir 
 .l<i,ir^.X> Ch.'l). 10."); Ii( //o//(W, 34 Ch. ]). 004; but under an order obtained 
 liy tiie client himself, he cannot (d)ject to the whole bill on tiiat ground : Jli. ; 
 butseeVi'.'.l. /;.,HC. L. J. 21. 
 
 K. S. (). 1S87, c. 1-17, s. .34, is as foUows : 
 
 "34. Xosiieh relerence sliall lie directed ni)on application made by tlie party 
 cliargeal'le witii such bill after a verdict has been (ditained or a writ of in(iuiry 
 executed, or after twelve montiis from the time such bill was delivered, sent or 
 left as afcpi'esaid, except under spi'cial circumstances, to be jiroved to the satis- 
 faction of tile Court or .hidge to whom the I'liplicatiou for the ref<'rence is 
 made : H. ,S. <). 1877, c. 140, s. 3."i." 
 
 Orders for taxation .are not m.ade, oxce])t on special circumstances lieing 
 ijiewii, after tiie expiration of twelve months from delivery of a bill; Jir 
 raiudon, 2 Chv. Ch. 311 ; Ji, Tliom,»KOii, 2 Chy. Ch. 100; lit' (,'i7>l( rxhrvc v. 
 W(tlk( III, (I 1'. K. 117 ; Jiiiiil V. ( 'nfli'ii, 3 V. H. 118 i J'litluli) v. < ■liinrh,H P. H. 3(i3 ; 
 He Xunami, 111 i). 15. I). (i73 ; Jli Xils'ni, 30 (!h. 1). 1 ; AV /'nrk; (il L. T. N. S. 
 \1?.: see FMr/irr v. Firh', 10 P. I{. (>08 : Siin/rr v. Siiii/i'r, 11 I'. H. 130or after 
 l«vnieiit : n, n'li/hi; 10 V. \l. 4(MI ; Sihi-mi'i v. Si/irin/i/, 11 V. R. 218; Jif 
 liunciitt, :",l Ch. I), iul; Rf Jneksim, 40 Ch. D. 4!»r> ; Ri 'Fairhankn, 1 Chy. Ch. 
 
 Where the special circumstances were that the solicitor w.as paid on the 
 iimlerstaudiiig that the bill might bi' taxed at any time, an order was made for 
 taxation after his death, against his representatives : Rr Jiahci; 13 P. K. 227. 
 
 SpcciiJ ciri'umttiiHci'n signify generally " pressure .acc<)mi>anied by some'>^"^r- " Special 
 cliarpe"' or "gross overcharges or errors so great as to amount tt) fraud ": circuni- 
 ItrS(r,llh,l■,•^ K. & .1. .')18 ; y.V Cniirroii, 2 Chy. Ch. 311 ; Re WaU:, r, 10 P. R. stances." 
 400; A'.' (lri/li//i, m L. T. N. >S. 434. 
 
 Where alleged overcharges constitute the special circumstances, they must 
 be specified on the ajudication to ta.x : Rr (lililirHlcrr <(• Wnlkfin, siipnt ; .a 
 (,'eneral allegation of overcharge is not enough : Rr Roi/cotf, 2!( Ch. I). 071 ; and 
 they ni,"t he on their face excessive : Rr JMIninrA- Ci).\ 4 C. L. T. 251. Trifling 
 Items will not lie sufficient : Rr iJriikr, 8 Beav. 123; overcharge by nnitual 
 inistake was Indd not to be a special circumstance : Be Ulascudinc, 52 L. T. N. S. 
 "HI, 
 
 R. S. 0. 
 c. 147, S.31. 
 No refer- 
 ence to bo 
 marto on 
 application 
 of party 
 chargeable 
 after ver- 
 dict or 
 after 12 
 months 
 fiiini deliv- 
 ery of bill. 
 
 
 
rn 
 
 982 
 
 COSTS. 
 
 ^ 
 m 
 
 ^ 
 
 
 1 
 
 Where a 
 
 Earty not 
 eing the 
 principal 
 pays a bill 
 of costs, a 
 taxation 
 may be 
 allowed 
 afterwards 
 
 Rule 1226. A lump sum retained for costs out of the proceeds of a sale, and mi hill 
 deliveretl, were held to constitute "special circiunstances '": I{( jildlnihiisaii A- 
 Wad,, !» P. K. 242. 
 
 The fact that an iwtion was brou^jht on a number of bills delivtnd (luring 
 several years, while defendant was ))lainti(f"s client, is not a s|i(iiiil cirttuin- 
 stance: Jiaitl v. Cotton, (i U. O. L. .1. 114 ; nur the existence of a cdiitrovtrsy 
 as to the terms on wliieii the l)usiness wasihine, nor tliee-.intinuanccuf inipldy. 
 nient after the delivery of the hrst bill : Aniolili v. <>' honohiK . 'lOwx.W'l'l; siv 
 (t'illix/iic V. Shdir, 10 U. C. L. .1. 100. Where jii(l<;inent had been sigiicil iiLcainst 
 the client in an action, during the pendency of neg-otialions for a s( ttlcniciit, 
 this was held a s])ecial circumstance: J'liltu/lo v. t'laiirli, S 1'. It. od;!. Sii 
 conjunction of the following (I) that the relationship of solicitor and cliiiit cmi- 
 tinned after the delivery of the bill, (2) that the solicitor iiad ott'eri'il to make 
 a substantial deduction, and (3) that thcr.- were items of iipparent ovcrrl]arj,'c (it 
 which no explanation was offered ; Ri H'o/h r, 12 V. li. 4t\0. 
 
 R. S. (). 1K87, c. 147, s, 42, is as follows : 
 
 "42. W'iiereany jierson not being' ci;argealilc as the principal party i- liable to 
 pay or has paid any bill either to ti)e solicitor, his assiypnee. or I'cprcsc.itativc, 
 or totiie in'incijial party entitled tiiereto, the person so paying, his assignee or 
 rei)resentative, may midvc the lii<e application for a reference tlicreof to taxa- 
 tion as the party chafgeable there^■,'itll might hini-a^lf have made, ami in like 
 manner, and the same |iroceedings shall be iiad thereupon, as if the a|i|)lii'atioii 
 iiad been made by the party so chargeable. I!. S. (). 1K77, e. 140, s, 1,S." 
 
 A creditor of an estate has no right tinder sec. 42 as between himself and the 
 jH'rsonal reiiresentative to a taxation of the costs incurred by the latter in 
 collateral proceedings affecting the estate, all he is entitled to is to have tlie 
 bill "moderated '" : lie lUc/iie, Triidrrs' Jlaii/,- v. M'urai/, 12 1'. H. llil; and see 
 nii'tti/ V. lluhlni, 4 (hit. Ai)p. 2.'!!); Ii< Jorl.sm,, 40 f'h. I). 4il.") ; 0(1 L, T. N. S, 
 ,-)S!). 
 
 The bill of a mortgage(''s solicitor in regard to tlie mortgaged estate may he 
 taxed liy the mortgagor : A'c Lcm. ;" P.cav. 410 ; /','.'■ partt tiliiHx, lii MiiviIuhhIiI, 
 '.\ V. R.138; see also AV Miixniii, ;i4 Beav. 408 ; also the bill of tlie solicitor of 
 executors of an estate may be taxt^d by residuary devisees: lie S'/,',itifi;li) 
 C. L. T. 21; 25 0. L. .1. 023. 
 
 So on a side by mortgagees under a power of sale, the mortgagor or a subse- 
 (pient incumbrancer is entitled to taxation of the solicitor's bill : L'l CrtrnrA' 
 Mtiir, 8 1". l{. .')(>; and under K. S. O. c. 102, s. 28, the taxation may l)e liiui 
 without an ordeif and that clause is retrospective ; FiniKKon v. A', d' N. Inrist. 
 Co., 8 P. R. 404. 
 
 Hut after payment liy the mortgagee of the solicitor's bill, the mortgagor's 
 only remedy is for an account : lli Mticdouiilil, Mtii'iloiiiilil <t' Miirsh. S 1'. H. 
 88;' Bi Croin/n, etc, Jl>. 372. 
 
 An account may be Iiad in a suminary way under /{iih 122'.l. 
 
 Where on the ajiplication of a mortgagor the mortgagee's solicitor was 
 ordered under 11. S.(). 1887, c. 147, s, 44, to deliver toa third ii.\rty a ('o|iy of the 
 bill of costs of thv sale, it was held that, though tlu' delivery was mider I!. S. (). 
 147, s. 44, to be regarded as for the purpo.ses of a reference to taxation, yet the 
 person .so obtaining the copy Iiad not nece.»!sarily the right to tax 'he hill : /^' 
 Mofoft, 12 P. R. 240. 
 
 Delivery and constructive delivery to the third parties liable to jiay were 
 discussed in lie /{o/tcr/iini, 42 Ch. 1). i)t}3. 
 Adding to A bill once rendered cannot be added to or deducted from by the solicitor 
 bill rend- without leave : Jle Dan/, 1 0. L. .1. 213. A substituted bill was allowed to be 
 ered. d.divered in J{, R <(• .V., « P. R. 18. 
 
 Where a bill was delivert^d indorsed as follows — " In the event of taxation, 
 we reserve to ourselves the right to deliver another and more comidete hill," 
 this was held to be an absolute delivery : /ir .Spencer d- Mr/>(iii<il<l, lilClrant, 
 4(i7 ; lie Thompson, 30 Ch. I). 441. 
 
 Where a solicitor obtains leave to amend his bill after tax-*ion coniiiieiicwi, 
 it is improper to strike out items; the charges omitted shouh. .le added, and if 
 
TAXATION. 
 
 983 
 
 I sale, iiiid III) liill 
 R( Mttlailnisdii <(• 
 
 < (IclivfVi d (hniiig 
 a s\ii'C'i!il circniri- 
 I' of a ciiiitroversy 
 imianct' nf riii]il(py- 
 uii . ■_* Out. ','tt2; sw 
 H't'ii siy:iii'il r.Ltaiiist 
 s for a sittlcniHit, 
 
 , s 1'. u. ;i(i;t. So 
 
 itiivaiul tlii'iit con- 
 lad (itfiTcd ti> make 
 iiviit iiviTcliargeof 
 
 |ial jparty is liable to 
 , or rciirc-iciitativc, 
 ill}?, his assi^-iiec (iv 
 ncc tluTci'f til taxa- 
 f juadi'. and in like 
 as if tlica|iiilicatitiii 
 
 c. 140, s. v.',:' 
 
 ,wiihiins(lf and the 
 1.(1 liy the latter in 
 I'd t() is ti> have tiie 
 2 v. H. Il'.l; and see 
 "I'.Ci ; (1(1 1.. 'I'. N. S. 
 
 ■i;jlj,'ed estate may be 
 
 ill of tlie scilieitiir (if 
 ;(.(.s: !!'■ >■"//.■■•■'"'■, W 
 
 iiortn-agiiv or a salise- 
 hlll : R( Cnriii'A- 
 ,ii\ati(in may he liiul 
 ■„, V. /•:. <f ^. /"'■'■"■'• 
 
 bill, tiie UKirtKiiP'r'" 
 Id A- Min-^li . Si'. H. 
 
 1-'"J".l. 
 
 tjaKee's solieitnr wax 
 rdparty aeiiiiVdf the 
 rv was under I!. N*'- 
 .(." to taxitiim. yet the 
 i,t totax'hehill: ft- 
 
 ,.s liable 1(1 liay were 
 
 fnin. by the solicitor 
 iiill was allowed to be 
 
 1„, ,.vent of taxatiou, 
 more couiiilete luit, 
 3/,/;„/(((W, I'.tt'rant, 
 
 tax- 'ion comuienced, 
 ,ul,. .H- added, and if 
 
 one fixtli be taxed oflf the amended bill, the solicitor pays the cost of taxation : Rule 1226. 
 Re. Martin. 7 R K. !»0. 
 
 Leave has been given to amend by inserting omitted items and increasing 
 under charges : Re Cmw/iird A- Croiiihif, 2 Cliy. Ch. 13 ; but not to decrea.se 
 overcharges: Ri' H/in/lfi/, 20 Beav. ;")7() ; nor to withdraw items improperly 
 inserted : R'' ('orren, H Ueav. 43(; ; R<' Jotf'x, /!>., 47!); Re lUakcsli/, 32 Beav. 
 37!); A'c l>. A- S. , (i P. R. IH. 
 
 K. S. (). 1SS7, c. 147, ss. 35-38, are as follows : — 
 
 " 35. In case either party to any sucli referiiice. h.aving due notice, refuses or 
 neo;lects to attend the taxation, the officer to wdioni the reference is made may 
 tax the. bill ej. piiHe ; and in case the reference is made upon the application of 
 eitiier party and the party chargeablt: with the bill attends the taxation, the 
 costs (if tlu; reference shall be paid according to the event of the taxatiim, 
 except that if a sixth jiart is taxed off, the costs shall bt? jiaid by the party by 
 whom or on whose Ixdialf such bill was delivered ; and if less than a sixth (lart 
 is taxed oti', then by the i)arty chargeable with such bill, if he applied for or 
 attended the taxation. 1{. S.'O. 1877, c. 140, s. 3()." 
 
 '■ 3li. Kvery order for such reference shall direct th(^ officer to wdiom the refer- 
 ence is made, to tax the costs of the reference, and to certify what, iipon the 
 ri'len.nee, he finds to be due to or froiU either party in nisjiect of sucii bill and 
 of the c ists of th" reference, if payalile. II. S. (). 1S77, (•. 140, s. 37." 
 
 "37. Such officer may certify specially any circumstances relating to the bill 
 or taxation, and the Court or .ludge may thereupon make su(!h order as may 
 he (!e(.m("i right respecting the pavnient of the costs of tlie taxation. K. S. O. 
 1,S77. c. 140, s. 38." 
 
 "3S. In c.ase such reference is made when the same is not autlicn-ized except 
 under special circinnstances, as hereinbefore provided, the Coiu't or Judge, m 
 making the same, may give any special din^tiuns relative to tlu? costs of tile 
 reference. R. S. (). 1877, c. 14(), s. .'V.l." 
 
 Interest is jiavable on a bill delivered to a client after deiuaud, and notice, 
 under R.S. (). c' 44, s. .S(), that interest will lie claimed : /^■ Mrrihr A- (liUchnnl, 
 ■J (I. L. 'r. 103, but the ta.xing officer has no jiiiwer to allow intiu'est unless that 
 matter has lieen exjiressly referred to him : S. C. 18 C. L. J. !)8 ; see in Kng- 
 luud miller the Solicitors Remuneratidii Act: /.'/(/('/• v. ('(inliirr, 1!( (.^. R. 1). 
 .51(i: A''' .1/ro'.«/.v(, 40 Ch. I). 475. 
 
 The Taxing Officer has n(i authority to charge the solicitor with interest 
 upiin iiiiiney in his hands bidonging to his client ; Re <)' hiinohiir, 12 P. R. ()12. 
 
 Only those ]iayiiients are allowed which are made l)y the solicitor in his pro- 
 fessional capacity ; Re Ri'iiiiiiiiif, 11 Reav. (103, and not iiayments in i)roceed- 
 iiiffs where he was not professiomilly concerned: //eminiiii/ v. Wil/nit, 4 Cur, 
 (t P. ;!1S : Re Lees, .5 Beav. 410. 
 
 After taxati(m under an order obtained after action brought, the litigation is 
 euiied except to enforce payment, [f the la'der does not reserve (luestions of 
 retainer and negligence, it is not o|ien to the client to takt^ a double chance of 
 defeating the .solicitor's claim by jiroceeding to defend the action after the 
 couelusioii of the taxation : Re .VHIIar, Milhtr v. ('live, 12 P. R. 1.55 ; where A' 
 ''"/,',., !) P. H. 337, and Morilunnld v. I'ljier, 10 P. R. ,58(5, were distinguished. 
 Rut see A'f Wd.shinnliin, 12 P. R. 38(1. 
 
 Costs of Taxation.— The solicitor will be entitled to add the costs of the 
 reference to his claim only in the event of the client appearing uijon the refer- 
 ence: He \\'(>K/iiiii//ifii, 12 I*. R. 38(1; see sec. 35 Kii/irn, 
 
 \Vli(.re the solicitor has oflfered to take in full .settlement less than the amount 
 of a hill of costs as rendered, and has made the offer in a manner unetpuvocal 
 and liinding on him, then, and not otherwise, h(> is to be allowed the benefit of 
 tlu' offer in (k^termining whetlier or not asixtli has been struck (jff. If the offer 
 to take a less sum is une(iuivocal and binding on the solicitor, then up(m tax- 
 ation the ([uestion whether one-sixth has been taxed off is to be determined 
 by i'(.fereiice to the .smaller amount so offered to be accepted : Re Alli.iuii, 12 P. 
 K. (i; Re Cdinee.iu il- Cii., 13 P. R. 173; see also Re Varthcw, and Re Raul, 27 
 
 If parties 
 refuse to 
 attend 
 officer may 
 tax l>ill 
 ex parte. 
 
 Costs of 
 taxation ; 
 how pay- 
 able. 
 
 Ordnr. 
 
 Officer may 
 make spe- 
 cial certifi- 
 cate. 
 
 Special 
 directions 
 relative to 
 costs of re- 
 ference 
 may be 
 given. 
 
934 
 
 COSTS. 
 
 Rules Ch. D. 485; In re Klnvs, ;\S L. T. N. S. 580; Kulicitor.s paid tlienisfhcs t'20 as 
 
 1227-1229. tlu'ir costs out of nioiioy in their hiiiids, but tlie client dciiiiuuied ;i l)ill, und as 
 it amounted to over .t2(> retiuired it to be taxed ; it was taxed to a sum rxoeediiiir 
 4120, but one-sixth was taxed off; no costs were {^iven to either iiarty. 
 
 Security for Costs. — Tlie fact of a client applying for taxation \m\\^ (nitof 
 the jurisdiction is not sufficient gromid for an order for security for costs, with- 
 out special circuuistances beiupr shewn : lU' A. Ji., (i P. R. 210. But see Ik 
 (.'(iriiinill in note to Jii'lf 1245. 
 
 JT-esmneo''" *--''• Wlieii a soHcitor's bill lias been delivered, the 
 to contain, oi'dei* of reference shall be presumed to contain clauses {a) 
 to (e) inclusive of llule 1226, whether obtained by the soli- 
 citor, client or other person liable to pay the same. 
 
 Order of 
 course to 
 issue on 
 prtBcipe. 
 
 Taxation 
 of tliird 
 l)avty. 
 
 1S3M. The order, when grantable of course, shall be 
 issued on praecipe. J. A. Eule 444. 
 
 There is no corresponding' Rule in England. 
 
 An order was formerly in Chancery, and is now mider this /'('/-' 
 
 pniiitalil 
 
 on priirij}c on tiie application of the, client within a month from the deHvery nf 
 the bill, unless the retainer is disputed : Rr Thurijuiid, 1!) Beav. 541. or tlune is 
 .some special agreement as to costs ; Ih., Ro ('. A- />., ]5 C L. .1. l.'V.I, or as to 
 the solicitor's lien : R'' Mi.^is, 17 Beav 50, or taxation of oidy part of tlic liill is 
 desired : /^■ />V//vA, 8 Beav. 124 ; R'- Vclts, 33 Be.av. 412; Rc'./»/nisun ,{.- Winllur- 
 (lU, 37 Ch. 1). 4.33; or only some of .several parties jointly liab'e, are applvin;:: 
 E,' Ihh-rtnii. 33 Beav. 20l'; see R- Lcwiii, K; Beav. (i08 ; R' IWhn; (•/<•., -J Cliy. 
 (.III. 215. But an order on piypci/ir will n(,t bi; discharged wiiere tlie iiarty 
 obtaning it had no previous intimation of special contentionsof tlieotiieriwrtv; 
 Re Jiarnii. 3 Chy. Ch. 70; R( Camn-nn, //<., 204. 
 
 Before the consolidation of the Rules it was held that an order fordelivi ryof 
 a bill, as well as for taxation of a bill already deliveri'd, migiit be obtained nil 
 prari/>e in all the Divisions according to the former Chancery I'lactice ; Rf 
 Fitziier<(/t/, 10 1'. R. 27!>. Qturi/ whether R. S. O, c. 147. s. 3li («iijiin p. !I3()), 
 now regulates the practice. 
 
 I32SI. When a party not principally liable to pay a bill 
 applies for delivery of a copy thereof for the purpose of a 
 reference, or for taxation of a bill delivered, and it appears 
 that by reason of the conduct of the party principally liable, 
 he is precluded from taxing the same, but is nevertheless 
 entitled to an account by the party princii)ally lial)le, it 
 shall not be necessary for the party so applying to bring an 
 action for an account, but the Court or Judge may, in a 
 summary manner, refer a bill already delivered for taxa- 
 tion, or may order delivery of a copy of the bill, and refer 
 the same for taxation, and may add such parties not 
 already notified as may be necessary to do complete justice 
 to all parties. 
 
 (a) The rights of the parties are to be adjusted by reference 
 to the provisions of llule 1226 as far as they are applicable, 
 
COSTS. 
 
 935 
 
 course, shall be 
 
 having regard to the relations 
 application and reference. 
 
 See note to Rule 1226, supra p. 932. 
 
 of the parties to the Rwie 1230. 
 
 
 
 iS30. Any party who may he dissatisfied with the allow- fj5;'('^^^t""n 
 a;ice or disallowance hy the Taxing Officer, in any hill of 
 costs taxed by him, of the whole or any part of any item or 
 items, may, at any time before the certificate is signed, 
 deliver to tlie other party interested therein, and carry in 
 before the Taxii.„ Officer, an objection in writing to such 
 allowance or disallowance, specifying therein by a list, in a 
 short and concise form, the item or items, or parts or part 
 thereof, objected to {a), and may thereupon apply to the 
 Taxing Officer to review the taxation in respect of the same. 
 
 J. A. Rule 447./^^/ -^^^ ^■^^f^'lJ^''' "" " >-~LV^ :,/A7' 
 
 . yf..- A / f . . < , ^< fi^rr^ ^ ^ ^ ^^ ,^ ^^^ ^^ ^ ^^^ ^^^ 
 
 Identical with the Eng. R. Aug. 12th, 1875, R. 30r^i (><yt<.J^.y^t _y<^ ^^ rf^</Zi <r-^^/'ti, 
 
 Wlu'ii a party carries in an objection in writing to an allowance or disairow- > 
 
 ance under this RtiU', lie is only hound to state the items to wiiich he otjjects, 
 not the reasons of liis objection : Siniiiiini.f v. S/ain; 14 Ch. I). 154. The .-^.-'-^ 
 present Kng. O. (15, r. 3!>, provides differently as it inserts at («) the words 
 "and the grounds or reasons for such objections." 
 
 A Slieriff, as an officer of the Court claiming fees by virtue of its process, is 
 80 far within its jm'isdiction that his bill may be taxed, and this Bulf will 
 therefore apply to prevent an appeal as to items not brought before the Taxing 
 Oificer for review : Murrisnn. v. rtii//u,; '.) V. R. 3!t0. 
 
 Where the question is one of the princii)le r)f the whole taxation, and not as 
 to particular items, it is not necessarv to specify objections under this Rule : 
 Hpufi-uw v. /////, 7 Q. B. 1>. 3(!2 ; 8 C^.' H. ]). 47!». 
 
 So where the gn ud of objection is to th(> whole of the finding generally and 
 the bill was not ,.axed at all, the Taxing Officer finding that a settlement had 
 l)een made, w liici! un<ler th(^ terms of the order for taxation was not to be 
 disturbed : Re (ieo. Caxtle, 3(i Ch. D. 794. 
 
 This /'((/roriginally only applied in the case of taxations by the Taxing Officers 
 at Toronto, not to taxations by Local Officers : (Irani v. (Irani, 10 P. R. 40. 
 This is, however, not now the case as a|)peals are now taken under /'('/('851, from 
 Local Taxing Officers dire'ct, and not after a revision at Toronto as formerly : 
 see formerly Kn-linni/e Jlanh v. Nmvrll, 9 P. R. 528. 
 
 An appeal therefore does not lie, unless objections were carried before the 
 officer, ax reipiired l)y this Ru/r : see Rule 851, and Sn'mulun v. //inifini/i/dii, ]2 
 P. K. 24S ; nor will an api)eal lie allowed as to any item not included in such 
 ol)jections : /'li'(/ v. (,. T. Ri/. Co., 12 P. R. 273. "Any objections to the taxa- 
 tion must be carried in in writing liefore the signature of the officer is affixed to 
 his certificate : Cin'rufr v. \Vliili,V2 V. R. 571. It is a sufficient certificate if 
 the officer ascertains th(( correct amount payable at the foot of the bill, rnd 
 notes tile liill of costs as taxed at such sum, with the date, and verifies the 
 whole by iiis signature : ll>. After having so acted, the officers have no power to 
 alter wiiat they hav<' allowed or disallowed, except as to clerical errors : 
 Ih.; Lnni/lri/ v.'Dimnului, 10 P. R. 444. 
 
 A person who is not a l>arty to the making of an order for the taxation of 
 costs, and who dt^sires to have the taxation reviewed, ought to apjdy to set 
 aside the order for taxation, and not apjdy to review the taxatiini : Chcuilun v. 
 (.'harlt.m, W. N. 1S82, 183 ; 31 W. R. 237'. 
 
 
936 
 
 Bnle 123L 
 
 TAXATION. 
 
 The following form of stating objections is given in Snnnnerhays & T<M)g(MKl's 
 Precedents, 2nd ed., p. 45, ancl i." a convenient fonn to be followed, thoic'li it 
 states the reasons of objections, which is unnecessary under Siinmiius v. Nhirer 
 supra : — 
 
 In the H. C. J. 
 
 Division 
 
 [title of cauhe]. 
 
 Objections taken by the i)laintiff [oc defendant] to the taxation by 
 Esq., one of the Taxing Officers of this Court, of the bill of costs of the plain- 
 tiff [ttr defendant] under the judgment ["?■ order], dated the day 
 of 18 . 
 
 The plaintiff [or defendant] objects to the disallowance of the items in his 
 bill of costs mentioned in the second and third columns, hereunder written, foi 
 the following reasons : 
 
 No. ov 
 
 OHJECTION. 
 
 Page 
 
 OK 
 
 Bill 
 
 No. 
 
 OF 
 
 Items. 
 
 1 
 
 1 to (> 
 
 2 
 
 10 
 
 4 
 
 1) 
 
 50 
 !tO 
 
 7 
 
 110 
 
 8 
 
 120 
 
 REASONS FOR ALLOWANCE. 
 
 These items are properly chargeable under 
 the order which gives the plaintiff his costs, 
 charges and exix'uses. 
 
 The attendance was taken for the i)ur])()sc 
 of saving expense, and further expense was 
 thereby avoided. 
 
 This item is in accordance with the tariff. 
 
 The ins])ection (}f documents was necessary 
 to enable the jilaintiff to iirepare his case, and 
 he obtained infonnation as to [«/ tliifi dut], 
 which was of material iissistauce to him on 
 the trial. 
 
 The afHda^ it was necessarj' and was used on 
 the hearing of the motion and entered in the 
 order. 
 
 This item is in the discretion of the Master 
 and under the si)ecial circumstances of the 
 case \ii(t iiiit vmut t/icsc drciiimttdHrcs are] 
 'should be allowed. 
 
 Dated this 
 
 ToMr. C. D.. 
 
 Deft's Sol'r. 
 
 18 
 
 daj' of 
 
 Yours, etc., 
 
 A. B., 
 
 Plaintiff's Sol'r. 
 
 See also TurnbuU v. Jansn)i, 3 C. P. D. 2(i4, for examples of objections. 
 
 Review of 1331. Upoii sucli application the Taxing Ofiicer shall 
 by^Taxing recousider and review his taxation upon such objections, 
 Officer, g^j.j^ jjg may, if he thinks fit, receive further evidence in 
 respect thereof, and, if so required by either party, he shall 
 state either in his certificate of taxation or by reference to 
 such objections, the grounds and reasons of his decision 
 thereon, and any special facts or circumstances relating 
 thereto. J. A. liule 448. 
 
 Identical with Eng. R. 1875, 12th Aug., R. 31, 1883, O. 05, r. 27 (40). 
 
SHERIFF S FEES. 
 
 937 
 
 A notice served at 4.3(1 ji.ni. to consifler oljjectious at I p.iii. on the following Rules 
 iv wiiM considerec". Biittieient in /v 7////, 33 Cli. I). 2(i(i. 1232,1 
 
 day 
 
 The officer should include in his certificate of the result the points of objec- 
 tion to his taxation. After givint,'a certificate of the resiilt he \>ij'iiiictiis<i/fii in,- 
 LaiK/Iri/ V. I>iimiinlii), 10 P. R. 444. Certificates of ruling on any points iiend- 
 iug the taxation may lie given from which :iu '.ippeal may lie iiad : ll>. 
 
 Api'eals from taxations are governed by analogy to ai>p('als from Chamber 
 nnlers, aii<l should theri'fore, '.inder Hi'li' 84(i, be bnnight on within nine diiys 
 fnmi tile date of the certificate on a notice served witliin four days : Siarl: v. 
 f/.s/(,/', 11 r. K. 23.5. 
 
 1233. 
 
 I ALLOWANCE. 
 
 3. Shkiuffs' Fekh. 
 1333. The fees and allowances set forth in the Tariff C, «i>t'iitt'»' 
 
 ItSOS 
 
 appended to these Rules shall be taken and received by 
 Sheriffs and coroners in civil proceedings in lieu of all 
 tees to which they have been heretofore entitled under the 
 Tariffs heretofore in force. See Tariff, 2 Feb. 1874. 
 
 See Rules 1064, 1230, under which Sheriffs are entitled to fees not mentioned 
 the tariff. 
 
 1333. In case a part only is made by the Sheriff" on, or i" what 
 l)y force of any execution against goods and chattels, thesiioritfon 
 Sheriff shall be entitled, besides his fees and expenses of poJf,iaage. 
 execution, to poundage only upon the amount so made by 
 liim, whatever be the sum indorsed upon the writ, and in ^^/ 
 case the personal estate, except chattels real, of the defend- '" 
 ant is seized or advertised on or under an execution, but 
 not sold by reason of satisfaction having been otherwise 
 obtained, or from some other cause, and no money is 
 actually made by the Sheriff on or by force of such execu- 
 tion, the Sheriff shall be entitled to the fees and expenses 
 of execution and poundage only on the value of the pro- 
 perty seized not exceeding the amount indorsed on the writ, 
 or such less sum as the Court or Judge may deem reason- 
 able. R. S. 0. 1877, c. 66, s. 45. ' '^ 
 
 
 
 ■^< 
 
 ^1 c 
 
 
 A Sheriff was formerly only entitled to poundage for mftney actually iiassing <2^^)e-^ Ac t-^ 
 
 through his iiands, and he was not (nititled to charge poundage on moneys paid ^ < y' l.^^ 
 
 by the ex( eution debtor direct to the execution creditor or his .solicitor : 
 
 llnmiltiiH •(■ P. I>. /ti/. Co. V. ('iiiv Hank, 20 (ir. 190 ; b\it now when* tlie i)ay- 
 
 ment is niiule or the claim is settled after seizure of the debtor's goods, the 
 
 iSiieriff {though not entitled to jioundage on the v.'i'ole amount recovered, is 
 
 under this Rule entitled to pcnnidage on tiie v'>iue if the goods seized not 
 
 exceeding the amount indorsed on the writ : and tti'K Mr linliertu v. llamiltivi, 
 
 " P. K. !l."). Wiiere the money is i)aid direct to the Hheriff without any seizure 
 
 lie is entitled to his ixjundage .md fees : (.'(inMlidati'd Hank v. /iickfonl, 7 P. R. 
 
 172. IB . ' 
 
 This /^(/(', iiowever, does not authorize a Sheriff to collect jKJundage under <an 
 execution against lands where tiie lands have been advertised but not sold : 
 ■tee Meirhnnlx Jiaiik v. VampbcU, 32 C. P. 170. 
 
rm 
 
 ■ A■l^9 
 
 988 
 
 COSTS. 
 
 
 and foes 
 only. 
 
 f2M-x237 •2JJ4. In cases of writs of execution upon the same 
 wiiiiii judgment to several counties, wherein the personal estate 
 titula tJ" °^ ^^^^ judj^nient debtor or debtors has been seized or adver- 
 iiiiiciiKo tised, but not sold, by reason of satisfaction having been 
 obtained under and by virtue of a writ in some other 
 county, and no money has been actually made on the exe- 
 cution, the Sheriff shall not be entitled to poundage, hut to 
 mileage and fees only for the services, actually rendered ami 
 performed by him, and the Court or a Judge may allow him 
 a reasonable charge for such services, in case no special fee 
 therefor is assigned in any table of costs. K. 8. 0. 1877, 
 c. G(3, s. 4fi. 
 
 dissauJttoa '-•5»*. In case any person liable on an execution is dis- 
 
 ht) may ai)- satisfied as to the amount of poundage, fees, and expenses 
 
 coVt.who of execution claimed by a Sheriff, he may, i)efore or after 
 
 diice tho payment thereof, ana upon notice to the Sheriff, apply to 
 
 aiuount. the Court or a Judge, and if, upon a statement of the facts, 
 
 the Court or Judge is of opinion that the amount is unreii- 
 
 sonable, notwithstanding that it is according to the tariff. 
 
 the same shall be reduced or ordered to be refunded upon 
 
 such terms as to costs or otherwise, as the Court or Judge 
 
 may think fit to impose. E. S. 0. 1877, c. 66, s. 47. 
 
 See McRiiberts v. llamiUtni, 7 P. K. !)5. 
 
 Taxinf! 
 
 Sheriff's 
 
 costs. 
 
 1236. Upon the settlement of an execution, either in 
 whole or in part, by payment, levy or otherwise, the Slieriff 
 or officer claiming any fees, poundage, incidental expenses 
 or remuneration, which have not been taxed, shall, upon 
 being required by either plaintiff or defendant, or the soli- 
 citor of either party, and on payment or tender of the 
 expenses of such taxation, and the further sum of 25 cents 
 for the copy of his bill in detail (which he shall be bound 
 to render) have his fees, poundage, incidental expenses or 
 remuneration, as the case may be, taxed by one of the 
 Taxing Officers of the Supreme Court, in the County of 
 York, and in other counties by the proper Taxing OtHcer of 
 the county wherein such Sheriff keeps his office. E. S. 0. 
 1877, c. 60, 8. 48 ; 49 V. c. 16, s. 17. , 
 
 cos^tj' »ot 12»7. No Sheriff shall without taxation collect any fees, 
 lectcdtiii costs, poundage or incidental expenses, after having been 
 taxed. required to have the same taxed ; and upon tender of the 
 
SKCURI'^'Y FOB COSTS. 
 
 939 
 
 upon the same 
 I personal estate 
 n seized or adver- 
 lion having been 
 t in some otlier 
 nade on the exe- 
 ponndage, but to 
 ally rendered and 
 le may allow him 
 i'cise no special fee 
 1. 11. S. 0. 1877, 
 
 I execntion is dis- 
 
 ees, and expenses 
 
 ly, l)efore or after 
 
 3 Sheriff, apply to 
 
 ment of the facts, 
 
 amount is imreo- 
 
 :-ding to the tariff. 
 
 be refunded upon 
 
 be Court or Judge 
 
 c. 66, 8. 47. 
 
 icecution, either in 
 erwise, the Sheriff 
 ncidental expenses 
 taxed, shall, upon 
 sndant, or the soli- 
 ; or tender of the 
 er sum of 25 cents 
 he shall be bound 
 lental expenses or 
 !;ed by one of the 
 , in the County of 
 3V Taxing Otticer of 
 lis office. H. S. 0. 
 
 ion collect any fees, 
 ;, after having been 
 apon tender of the 
 
 amount taxed, no fees, costs, poundage or "ncidental ^"i«s 
 expenses in respect of proceedings subsequently taken shall 
 be allowed to any Sheriff. K. S. 0. 1877, c. 06, s. 49. 
 
 12»>*. It shall be the duty of the Taxing Ofticer to tax [|';;^;,/;^,|;j' 
 the bills of costs presented to him for taxation, as herein taxation 
 required, upon payment or tender of his fees, and to give, "'^'■'''""'^•• 
 when requested, a certificate of such taxation and the 
 amount -thereof. R. S. O. 1877, c. 66, s. 50. 
 
 ia»«. It shall be the duty of the Taxing Officer, upon ,^;;t,v,:^/ 
 proof of notice of the time and place of the taxation having oiuoer'. 
 been duly served upon the Sheriff, Deputy- Sheriff, or other 
 officer charged with the execution of the writ, to examine 
 the bills presented to him for taxation, as herein required, 
 whether such taxation is opposed or not, and to be satisfied 
 that the items charged in such bill are correct and legal, 
 and to strike out all charges for services which, in his 
 opinion, were not necessary to be performed, li. S. 0. 1877, 
 c 66, s. 51. 
 
 1340. Either party dissatisfied with the taxation niay J^j'^v'^^on of 
 appeal therefrom as in ordinary cases, it. S. 0. 1877, c. 66, 
 8.52. 
 
 See *('/(/•(( ]). ()!)(! for practico on aijjieals from taxation in ordinary cases. 
 
 12*11. The Court or a Judge may, in oi' for the purposes Costs, etc. 
 of any interpleader proceedings, make all such orders as to 
 costs and all other matters as may be just and reasonable. 
 
 4. Security for Costs. 
 
 1242. Where it appears, by the writ of summons, security 
 notice, or other proceeding by which an action or matter is order fo\'. 
 instituted, or by an indorsement thereon, that the plaintiff 
 resides out of Ontario, the defendant shall be entitled on . y 
 pnedpe to an order requiring the plaintiff within 4 weeks <^ 
 
 from the service of the order to give security in $400 for 
 the defendant's costs of the action staying all further pro- 
 ceedings in the meantime, and directing that in default of 
 such security being given the action be dismissed with 
 costs against such defendant, unless the Court or Judge 
 upon special application for that purpose shall otherwise 
 order. J. A. Rule 431. 
 
 Not ill the Eng. Orders. See Paxton v. Jiell, W. X. 1876, 221, 24!). 
 
 9^. 
 
 15$a 
 
'''■f,m 
 
 
 «40 
 
 COSTS. 
 
 '<^^^ 
 
 % 
 
 
 Cs, 
 
 Si 
 
 I Klllcs (111 („.(. 
 
 Hilifitcirsliiill U. 
 ''"onii 1 ill 
 
 Rale,1243. Tlu- Oiilnrid /i"/''.'' do not fxprt'ssly rcqiiirt' an the KiijirliH 
 Hii/<:i of 1H8.'{, r. l!t) that tlin address of tlic plaintiff hniii),' by : 
 iiidorst'd iii)oii tlic writ: sec Jii'ff 240. Tlic form of writ, iioucvi r, 
 the Api). ) contfiiiplatcs sucli an indorsement and tliis slioiild tlierefuri'l 
 followed. Wiiere the )ilaintitf is witliont the jurisdiction and lialile to ^W,. 
 security, if tiie writ does not diselosi- tlie residence, a special applicntiiin fur 
 security is proper : Ltiirlixx v. Rmlforii, 17 C L. J. .'WH ; 1 f!. ]j. 'I', [\{\\ . ^,1,1 
 the costs of it will he to the defendant as the i)laintitf <iiipiit in siicluMne tn 
 indorse his addntss on the wn., so as to enable defendant to olifain au urdcriin 
 /)?v»r7)(' inider this /ic/i'.- Mrt'irmlil v. //ru/ir.s.s//, !) P. K. 4H!I. 
 
 As to what is a s\itKciently ])ositive statement that the plaintiff's resjclcnci- is 
 out of the jurisdiction, in an attidavit to obtain an order for si'curitv sic 
 Ho/ /ini/K worth v. Holliwtawovth, 10 ]'. U. 08. 
 
 A privi'ipc order has as nuicli force, ujuni beinp served, to effect a utay nf 
 proceedings, as if made on application to a .fudge ; BidiI; <if N. S. v. Im Ri,rh, 
 9 r. H. tm ; Dixr v. Ruixl, 10 I'. H. IC);"). An order under this linh- limits iii 
 the first instance the tini(^ for giviuff security. l''ornierly a /mici/ir unlii 
 merely stayed proceedin^,'s till sec\irity was given, and by the Cliaiici'iy imii- 
 tice or imder 42 Vict. c. 15, s. 2, (now Jin/f 124(>) a sul)sei|ueiit ap|)lic':itiiiii 
 might be made to limit a time. In (U'fault of coni|)liance with an diiici' wlnrr 
 no time has been limited, a motion may still be made under A'/'A' 12tl'i, tuliinit 
 the time, or in default to dismiss the action for want of prosecMitimi : Lti Uniwn 
 V. MvAnilirii; 4 <^ li. I). 210; Whitv v. lirnmiiii; W. N. 1H7.S, 2.S. If the 
 plaintiff then wishes to give seciu'ity he nuist pay the defendant's costs of the 
 application : L'.r imrtr I.iiiiirn, 10 Ch. J). 1. 
 
 Where an order lias limited a time and provided for dismissal in case nf 
 (U?fault, a suhsecpient ijr tiiirtr motion shewing default has lieen (■\ist(ii;iiiiv in 
 Ontario to obtain the dismissal of the action: see Jiuriis v. ('Iii.ihahn, L' 
 Chy. Ch. KS. 
 
 It was dotibted under the original /iiilix whether thert^ was ;uiy imwer tntix 
 the amount at les.-, than :j40() when^ a iinici/w order had lieen taken out : yurlli 
 v. Finliri; 10 !'• l{. r)S2. /'/(/fx 1248 and r2.-)() were passed to settle tliisqne.stiiin, 
 
 An order obtained by the defi-ndaiit for security, with a stay of priiwi'(liii(,'s, 
 does not in-event the defendant from moving to dismiss for want of prosetii- 
 tion : Loii'Idii /x'ikhI Cur Co, v. Kdln, 18 L. H. Ir. 4;i ; Ijut see /)(i(t'n.t v, Sculliii, 
 2(f L. K. Ir. 8. 
 
 may o) 
 tain secu 
 rity for 
 costs. 
 
 Additional ltJ4;$. Ill addition to any cases in which a defendant iu 
 which the any action, may by any law or by the practice of the 
 defendant QQ^J,^^_ ]^q entitled to obtain security for costs from a plain- 
 tiff, security for costs may be granted to the defendant or 
 applicant in any action or proceeding in which it is made 
 to appear satisfactorily to the Court or a Judge, that the 
 plaintiff has brought a former action or proceeding for the 
 same cause, which is pending either in Ontario or in any 
 other country, or that he has judgment or order passed 
 against hiin in such action or proceeding, with costs, and 
 that such costs have not been paid ; and such Court or 
 Judge may thereupon make such rule or order staying pro- 
 ceedings until such security is given as to tlie Court or 
 Judge seems meet. K. S. 0. c. 40, s. 97 ; c. 50, s. 70. 
 
 Another To bring a case within this /iule it must be clearly shewn that the causes of 
 
 judgment action are identically the same and not merely growing out of the same trans- 
 "endiu ' «^<^'^">" = -'^''"" "•'■ T-'i'n-Vm, 2 Chy. Ch. 202. Mee also Ciixwill v. Murrny, 18 
 
;i EnjrIiNli Rules (1(, (,^ 
 iiiiiK hy MiliiMtdrslmll 1». 
 rit, liowi'vci', (Konn 1 in 
 tliis shdiild tlii'ri'fdi'c lie 
 lictinii iintl liiililf ti) (;iv(. 
 a spi'ciiil iiiiiiliciitiim fur 
 W ; 1 ('. L. T. (1(11 ; ,i,„l 
 itiff ouplit ill such case til 
 iiiit to oiitain iui (inlcrcjii 
 , K. 48!). 
 
 tlu' iiliiintitf's I'i'sidint't- i> 
 II cirdtT for security, sec 
 
 ■rv('<l, t(i ctfcct II stay (if 
 'ittl: (if M^. S. V. /,'( Bdi'lii. 
 
 miller this y^''^' limits in 
 oriiicrly a /inicijic order 
 1(1 l)y the ("hiuieery |inic- 
 I sillise(iueiit ii|i|ilic:itiiili 
 mice with an order wlicic 
 
 under llii/'' TJKl, tu limit 
 if nrosecMitiiiii : Ln (Iriiinn 
 
 W. N. 1S7«, is. If the 
 I' defendiint'.s costs ef tiie 
 
 SKCL'RITY FOR COSTS. 
 
 041 
 
 for dismissal in ease nf 
 lit lias lieeii eiistdi.miy in 
 ■e Jiitriis V, ('lii!<lii)hii, '1 
 
 hern was any iiowertotix 
 lad been taken out : \nrlli 
 ised to settle tills ([lU'stidii. 
 
 -■itli a stay of iiroc(f(iins,'>, 
 
 iiiss for want of iirosccu- 
 
 hut see hiifiis V. Sr.dliii, 
 
 liich a defentlant iu 
 he practice of the 
 costs t'l-om a plain- 
 to the defendant oi' 
 in which it is made 
 r a Judge, that the 
 
 proceeding for the 
 n Ontario or in any 
 nt or order passed 
 ing, with costs, and 
 and such Court or 
 
 order staying pro- 
 as to the Court or 
 q ; c. 50, s. 70. 
 
 f shewn tliat the causes of 
 ang out of the same trans- 
 so Otxirdl V. Murray, 18 
 
 (' L •! "'> ; '•'I'liitil Jiiiictioii lln. \. /'ilirlxiriiKdIi, 10 I'. 15. 107; f.nni.i v. Rule 1244. 
 
 r'niik-hn,/.; i:» I'. K. 'M : <nl,l„t/ v. Wnnin; L. \{. 2 <,». 1?. lOH; and .Unrtin 
 
 V. lk<tnflii(iii/i, l'.")("ii. I). ]-; aiiproved in Mci'dlii v. lliiiik a/ I nliiinl, 14 App. 
 
 Ca-". 41''- NNIiere sonic of (he causes of action in a second action ucre the same 
 
 as in a fiiriiier action, tlic plainlilF luoiiij;,' discontinued as to those, theCourt 
 
 ii'fnsid to slay the second action in respect of the new causes of action : 
 
 Hiii'iiUrw Dn'iiiii, loL. H. Ir. .'iSO. 
 
 Wlicre an ai^tioii liy a ni»rrie(l woman liy her next friend was dismis-ed with 
 ciiifi, for want of prosecution, a second action on iier lielialf for tiie same ohject 
 liiit liv a new next friend was stayeil till the costs of the first action were paid : 
 III I'iiiiiii, lldii'l/' V. I'liiiiii, L'HCh. I). 2SS. 
 
 In Hruimdoi v, Hiiiniihriii, 14 (^ 15. I), 141, it was held that where a .judgement 
 liad lit'cii olitained, in an action to recover damafjfes for injury to the plaintiff's 
 cah, ill a ciillision caused li,\' the defendant's servant, another aetimi mi^jlit lie 
 lirim'dit for daiiiaj^es for a personal injury suffered in the same collision, as it 
 uiK liidd to constitute a distinct cause of action. 
 
 Se;' /'".S.S.7/ V. Wiil(i\f(iril A' Liiiiirick It'i., I(> L. IJ. Ir. .">14, for an instance of 
 »|ilittiiirr a cause of action. 
 
 Ir Sirriiii v. .V(;(/, IT) t^. \\. I). 540, an action was instituted in the ( 'hancer.v 
 |)ivi<iiiii for all iii.iunction to restrain the defendants and a company from part- 
 iiitr with shares or reffisterinx: the defendants as transferees, and for "' further 
 ;in(l (itlier n lief. " The action was -settled I ly an order for did i very up of shares to 
 the plaintiff and staying.' tlie action. Owin;^' to (hday in (hdiverin^r the shai'es 
 tlicy were sold at a loss and this action was hroiiKlit for daniaj,'es for the deteii- 
 tiiin. It was hidd that it was the same cause of action as in the ("hancery 
 Divisidii and the plaintiff was estoppe(l hy a consent order from recoverilij,' 
 ilaiiia|,'es, the action in the ( "haiicery l)ivisioii heiii;,' fo!' all kinds of ndief to do 
 (■;iin|ilcte justice hctwecn the parties. 
 
 ■iiHil 
 
 1344. In any action in which the phiintiff sues as an 
 informer, or seeks to recover any penalty given to any 
 informer or person who sues for the same as aforesaid, 
 under any statute or law in which any penalty is given to 
 any person who sues for the same, either for his sole bene- 
 fit, for the benefit of the Crown, or partly for his benefit 
 and partly for the benefit of the Crown, — the person so 
 sued, or liis agent, or solicitor, may apply to the Court in 
 which the action was instituted or is pending, or a Judge 
 thereof, for security for costs, upon an affidavit made by 
 the defendant applying, showing that the action is brought 
 to recover a penalty, and that in the belief of the deponent 
 the plaintifY or informer is not possessed of property suffi- 
 cient to answer the costs of the action in case a verdict is 
 Siven or judgment rendered in favour of the defendant, and 
 that he (the said defendant) has a good defence to the 
 action upon the merits, as he is advised and believes ; and 
 the Court or Judge may make an order that the plaintiff or 
 informer in the action shall give security for the costs to be 
 incurred in the action, in the same manner and in accord- 
 ance with the practice in cases where a plaintiff resides out 
 of the Province, and the order shall be a stay of the pro- 
 
 Persons 
 Btiiiii,' tor 
 penaitics 
 may be 
 ordered to 
 f,'ivoHecu- 
 rity for 
 costs; in 
 w)iat cases 
 and on 
 what appU- 
 cation. 
 
m 
 
 1)42 
 
 C08TH. 
 
 RuJei24B. ccodinss in the case, until the proper security is Riven an 
 aforeHaid. 11. S, 0. c. 50, b. 71. 
 
 j \^-t JOit ^ 
 
 Recm"t'-iw IJS'i''^' I'l "-'ly action or matter (a) in which nieurity for 
 coHtK. costs is r(!(|uiri't1, tlie security shall be of such aiiioiiiit and 
 be given at such time or times and in such nuiuiur and 
 form, as the Court or a Judge shall direct. J. A. Jtiik 121). 
 
 tnl 
 
 ^ 
 
 m 
 
 
 1 -, ■;■ 
 
 Identical with tin; Knff. \\. l''('liruiirv 1S7(1, 1{. 7. 
 
 ^^ iM.'i*. (") '^'''' /'''''"'■""■"''. l'"' Tj. It. Ir. 1 II, wlici'f Ncourity wns iii'diitil 
 ^ ' ./V>y II client (i(it tif tiie jiii'isiiictiiin, Mccking to tiix lii.s solicitor's liill. 
 
 
 < 
 
 Resldenco 
 out of jur- 
 isdiction. 
 
 Tho wordH "iitHiich time or tinuw " liavo Imm-h held to be iiiconHiistcnt witii 
 till' fornuT rule that aiiiilication for Hecurity iii'ist lii^ made licforc taking a 
 step, iitlicrwisc the iJKlit was \\ai\i'd : src Kn'iii-llnii \. KikhcHi.h, h |>, 1{ ^ik). 
 I'n„h:i \. <y.\,;i, 7 I'. K. .")2 ; llnl/imi// v. t)',,)/, <) I'. 1{. |i] ; and it is tlitn.' 
 fore lii'ld in Kn^fland tiiat now in a proper case security may he nrijcrfd cr 
 increased at any staj,a' of tlie cause however late, (..(/., after reply, and ik.i' ■cuf 
 trial },'iven: l.iithnii, lic. \. liirti, 'l',\ Ch. 1). liaH; iuid see liinlii-nrtli v. />'(//, 10 
 P. 1{. 544, wiiere seeiu'ity inider the (,'. \i. I'. Act. sec. 71 (now Itulf ll'44), \\m 
 ordered after defence on examination of jiarties ; see also Ti'llrtt v. I,iil"r, H 
 L. \\. Ir. S; //-// V. I.,i:niliii, V> L. |{. ir. 7o, and Arhii;-I;ilil v. .VrW,,,/,/, W. X. 
 IHHd, f)!!; eacli case dependiii^f upon its own cinMinistances : .see /'m./iifx Truxliv 
 V. ll7(''^y/(///(, ;W(;ii. I). 711. In tiiis Province tlum^di tlie ri^dit is notwaivcdliv 
 takiiif,' a step, tlie application must lie made at a reasonable time, w liicli luis 
 hci'ii considered to be in general lieforc issut! joined: Cd.siirH v. Munvii, is 
 C. L. .1. 70; !»P. K. 1!»2. 
 
 One surety may be sufficient. Ttie number is in the di.scretioii o' tluMifficpr 
 before wlioiii tlie iplestioii of the allowance of the security conies ; F/ilrlnrx, 
 yohh; !l J'. K. :iM; see note to Ri'l, 1247- 
 
 A defendant is i-riiiiii lurir but not necessarily entitled to security licciHise 
 the plaintiff's residence is out of tlie jurisdiction. If it be made iippaiviif frnin 
 exideiice which the Court can look at, such as defendant's adniissiuns cm 
 examination, or other admission though not in any technical foiiii : .l«,'//'- 
 Aiiirricdii V. Jli'ir/iii, 10 J*. R. .'illl, that there is no defence, security will not 
 be ordered, or a /irccijir order will be set aside : /)iiir v. Itniid, 1(1 1*. K, Kio ; 
 Ik SI. Marl I II v. Dads, W. N. 1S84, SO ; 2S Sol. dour. 3!)2. 
 
 The following are some of the jirincipal cases relating to security for costs i 
 
 Residence out of Jurisdiction.- A idaintiff wilfully giving a li('titiiiiisa(l(lrt'.«s 
 within the jurisdiction, though reallv living without, will be ordeiiil tn pivc 
 security : Wiililnm v. MrWulln; C I'.'ll. H,") ; Sut/irr/ini,/ v. Mrlhniuhl, !t 1'. R, 
 178 ; Ji<'i'")it/t> V. < •hiiiitur, 4 ^l B. 1 ). 4.JS ; Mitnlni v. Ikiflvb: S I )e. ( \. M. & (i. 
 408, and sei^ iJ'' Slanjis, f/r., 34 W. R. 1()3 ; Aiidrcws v. ItcKd, W Tiiiies "iT.S; 
 Fmsn- V. I'aliiicr, 'A Y. & C. 2S() ; and where this i.s done the order will n(itl)f 
 discharged merely because the idaintitt" comes to reside within the jiirisdictiim: 
 III. A sohi ])laintiff residing out of the jurisdiction, will priiiiu/diic lie (iLiliKwl 
 to give .security : Dan. I'r. 5 Ed. 28 ; Jli'jiiihlir nfCusId liim v. l-'rl'iinin; 3Ch. 
 I). (')2 ; but not if the residence abroad is of a ti^mporary (;liaractcr : ('"/iv. 
 BniJe, 7 Moo. (113 ; II'/V.s'on v. Wilnini, C P. R, 1.52 ; see Sliiiln v. Fivirlii, \y. N. 
 1877, lt')(i, 188 ; or if any one of several jilaintiffs resides within the jiirisdictiim 
 where they sue in resjiect of a joint claim, t^vi-n though a several claim 1k> set 
 U)) in the idternative : /)'J/oniiiisi/ir v. <-';•(■ v, 10 <.l. V<. J>. 13. lint since lli'lff 
 300 and 1171, all the plaintitfs are not jointly liable for the whole cost.-. 
 Hence, the riilt^ that security for costs should not be ordered where tlie objec- 
 tion taken to a jilaintitf ('".,'/., residence abroad, insolvency), is notapplicaliletn 
 other co-plaintiffs, does not now universally govern : Irriiuj v. I'lurk, \i V. R. 
 2!t, in wdiich neeuritj' wa.s ordered for the costs of the defendants against one 
 plaintiff, where the claims of the several plaintiffs were distinct. 
 
HKCimiTY KOIl COHTH. 
 
 !)43 
 
 leciu'ity is Riven as 
 
 wliicli security for 
 t" Hiicli aiiioiint and 
 
 such niuiiiiL'i' ami 
 :t. J. A. KuU 4'2l). 
 
 y WHS unlni'il to iM-givcn 
 'dlieitcir's liill. 
 
 (1 tu l)t' ineoiiMiHtcut with 
 111' iMiuU' lii'fiirc takiiiK a 
 
 \. Kiinirltnil, S I', It. -Kill; 
 
 '. 1{. itl ; mill it i^^ tiii'ii'- 
 Miritv iiiiiy 111' iinliTi'il rr 
 , aftiT I'i'iily, and in.i' 'i' n? 
 il si'i' l',iiih'i;,rlli V. /W/, In 
 f. 71 (iiiiw /i'"/i ll'44), wiis 
 CI' alsd Trlli'll V. I.iil"r, « 
 ni-riillil V. .\'((W«,/,/, \V. N. 
 iiici's : WIT I'lii^lii/'s Tni.'he 
 till' I'i^lit in imtwiiivi'dliy 
 I'iisimiilili' tiiiii', wliicii liii'i 
 ■d : Vasictll v. Munvi/, IS 
 
 lio iliscri'tiiiii I)' the officer 
 I'curity cdiiics : F/itilini- \; 
 
 titled to si'iMirity Iwcause 
 ' it lie uiailr ii|i|iaii'i'.tfnini 
 li'fi'iiilant's aduiis^iims im 
 y tci'lniii'al fnnn : .1";/''- 
 ' 'cfciu'i', si'i'urity will nut 
 i/c/' V. /iKii'l, 1(1 i". K. llw; 
 iir. w.yj. 
 
 ting tu Ki'C'urity for costs; 
 y f;iviiiy a iictitimis address 
 it, will 111' iinli'i't'il tu pivf 
 
 ■1,1,1,/ V. M,'/>n„„l,l, >)]>.]{. 
 
 /;,,'■/,■/,, '.S D... (,. M.&_l'. 
 iirs V. 7i'('"i/, ;{ Tinii'.-i a73; 
 done thti iii'diT will nut W' 
 lU' within thi' jurisdictiim: 
 will ///•/»((:./'"'■(> 1)1' oliliH 
 ,/(/ Ili,:a V. AV/('(i.'/i/', 3C'li. 
 nporary (jharacti'i; : 'J'/i v. 
 
 ides within tliejurisdictKiii 
 miRli a .several elaiiii lie set 
 r.. J). 13. But since /i'W'< 
 ialde for the whele co^t^, 
 le ordered where the objtf- 
 Ivencv), isnotaiiiilicahet.i 
 
 : In'iii'/ V. dud; 121.K. 
 tho defendants against one 
 ere distinct. 
 
 .Stciirity will nut lie reiniireil if the plaintiir is serving aliruad in the army ur Rule 1246. 
 navv I h'l'h/'i ^'- ' '////'/"//'/i'/', !t .Sim. Ill"; /■'.I'lriini \. chijl'i nil,,,, ~ 1 )uwl. ."iliti j 
 lhi'hi,>;'ii V. Ili'jHIl, 1 Chv. Ch. lOH; ur if a sulijeet and at the time resident 
 witliiii the jurisdiction, tlioiiKh his niovemcnts lie uncertain : Al/in v. (ihilii; 
 (ilulie, 1 I'ee. \X><\ \ '•"ri/iii'ry. /I,ii'i'l.i, ,s L. |{. |r. .M.'iL' ; ur if the |ilaintitf 
 licfiire sllit eonies tu reside within the jurisiliction, e\cn lhuu;,'h it lie 1 inly to 
 avilid j;iviiiK' security, and intends tu retuin ufler jiidt'iiient : Wil,!, ,■ \ . /J"/'l:iii.-<, 
 4 r. It. Xii»; li,,l„iii)„\, <'/„if/l"i; i ij. IS. I). l."i:< : Hi ,i,i''l,l-i v. I\,iil,, r, L'l ( ;. L. .1. 
 Sll : /■,Vi/'((/v/ \ , (liixsi,'i\ 'it< CI I. 1). 'I'.Vl, (where one of the plaint itfs came tu reside 
 williiii the jiirisdictiun, after dismissal of a motion for security, Iml liefore ail 
 uij|ii'al from that order, anil the stale uf fai'ts at the time of the apiieal was 
 luiiki'il at, though on other ffrounds the order for security would have lieen 
 made), hi l'ji>,'land these cases arc sii|iersidcd hy Jtnh S'l of |{. S. ( '. IMcSa, 
 chanK'ili),' tlie law : sec W'itanii, 7tli cil., -IHl, 
 
 A iietitinner for winding' up a company who had given an adilrcss at which 
 he cannot Iw founil and whose solicitor was iinalile tu state his private address 
 was unlered to give sec'urity . lii -SVc/i/m J/ilnr J',iitrr ,S,/ii,/i,ii/'' (iJil.), hW 
 L. T. X. S. 715 ; 34 W. i{. I(i3. 
 
 If the plaiiitilT's permanent residence is fui'cign, the defendant is entitled to 
 sii'iii'itv if the |ilaintiff is out of the jurisdiclion at the time of llic motion ; 
 linl„rh"ii V. (■,:,';,, I, 10 1'. \{. oCiM. 
 
 If a plaintiff goes out of the jurisdiction pi rmaiiently pending action, he may 
 111' rei|iiiied tiigive security fur liiitli )iast and future costs : Mmsfi/ v, Alli'ii, 
 h' I'll. I). .Hl)7 ; J/,thlii/ v". Miir/i'iiih /),:y„i/i/i Ti;(Hxp'iitiitinii Ci., 10 P. R. 
 ■Shi. 
 
 Ill Miiiti„,\. Hiissi'U, i\ li. K. Ir.. I'.K'i, seuurit^v was ordered tu lie given liy a 
 -ailiir fiillowing his culling unt uf the jiiri.sdiction though liis family resided 
 within it. 
 
 defendants were held nut entitled to security from idaintiffs who sued as 
 executors, and who, under a power of attorney from I'jiglisli c.xccuturs, fuok uitt 
 lu'iihate in Ont.irio, of the will of a testator, who resided and died in England : 
 .Ny,v.< v. (',!„, (ilii l',i,'iji,: /I//., 3 C. ]j. T. ."id;"). 
 
 .SVihWc, that an aftidttvit of information and liclii'f as to residi-nce alm)n<l is 
 not snfticient ground for an order for security for costs: Ji'ii/liii,/si,;i,-tJi v. 
 Will, ii'is,,:, I'll,, 10 1'. R. 5. 
 
 An inf.iiit out of the jurisdiction, iietitiuning the Cuurt fur relief, may be 
 required to give security fur custs ; ,S/iiis,iii y. Jf,'i-liii, 2 Cliy. (Hi. .S(J. 
 
 A fiireigner in jirisun within the jiirisdictiun was nut urdcrcd tu give 
 security; Jtn/iniil v. (U-mil:, K(l L. T. .Imir. 31, 
 
 As to what constitutes "residence" abroad see /fc Tirni-Ji, f.,-. ji. Iii;iii,liii), 
 2,"-)Cli. 1). 5(1(1. 
 
 If till' plaintiff li.as substantial jirujierty within the jurisdiction, uf the valii-. Hut not if 
 "f •*'l(.'(l, available in execution, this may be shewn in answer tu a mutiun fur he lias jiro- 
 si'ciirity, to displace the /iri'iii,1 fuci,' case made by iiruof uf residence out of the !"'*''>' ^V'tu- 
 jurisdictiiiii : <i,ii,lt y. .S>'»ci'/',' 2 Chy. ( 'h. !I2, or it may be made the gnmnd -"jiJ.'^,;',"''" 
 fur a special motion tu discharge any urder which has been made iin /y/i-c////' for 
 security : (liiiis,,^ y. Finch, ;{ (Jhy. Ch. L'lKi. It wuiilil not seem, according tu 
 the latest cases, to make any difference wdietlier the iiroperty lie real or 
 ix-rsonal : Hon '•in;/,r v. /•,if/ti,ii/, 30 W. H. 7()!t ; 47 L. T. N. S. 24!! ; It,;!, mil,, \. 
 Cmijilnr, 4 il ]i. 1). 453 ; Jlrpiih/i,- ca' (■„.'<t,i Iii,;i y. /■:,■/, iii,/,-,; 3 Ch. D. ('.2 ; but 
 see Kilhviuiii Uii. Ci. v. Fi''ti/iti, L.' K. (i Ex. SI ; }{,■ Cn-n,/, 2 Chv. Ch. 305; 
 Hi'Mihis v. .Wnitdiii/, C. r. .K. 147 ; M,Ii,n:.i,' y. SIiiUdi, (i P. R. 282'; ll7/.s7//( v. 
 'li/.'."", (JP. It. 152; ,Siri,i/i„i>nic v. (<,n-/,'i; 23 L. J. (,>. B. Ki : /.''■ J/, ■in- .s'. M. 
 '".,01 L. 'r. X. S. 17'>. But the acipiisition of jiroperty subsei|uently to an 
 unler for security is no reason for discharging it : Itftuimr. v. Li;iritf, (J P. R. 70. 
 If the possession of sufHcient luoiierty iit the time of applying fur a pi;i<'ipi; 
 order was km I wn to the defendant's solicitor this may be a reason fur discliarg- 
 iiig tile order with costs : (>'i(ii.\nii y. Fiiirh, siqrra. 
 
 If a plaintiff rettirns to reside pernianentlj' within the jurisdiction an order Order 
 fur security may be discharged : llan-ey v. .Smith, I Chy. Ch. 392; -S'trf qucvre: where dis- 
 
■-!■. 
 
 944 
 
 R\Ue 1246. 
 
 N'oininal 
 lilaiutitT. 
 
 COSTS. 
 
 sec /liii/iiii/l V. J/di/Iri/, 4 M. & W. 'I'A't ; 7 Dowl. tit, referred to in llalelei/ v. 
 .\firrliiiiils Ihs/intrji (',,,, 12 Out. App. (UK, uifi, (uilesM obtained liccanse the 
 plaintiff had wilfully misstated his residence : see Walilrim v. M<Witltti\[\\>, 
 [{. It"). Hut if the Court thinks the return is merely to get rid of the order 
 and the ])laintitf has no ties, business or otherwise, to gtiarantee tiiiit lie will 
 remain within tin? jurisdiction, the order will not be rescinded : J/kcs/^ 
 /{'■'//■(■, 1 (Miv. Cli. ;J!M). 
 
 V. 
 
 NoLlinal Plalntiir. Security may also l)e ordered if the plaintiff is 
 insiUrnt and the s\iit is in reality for the benefit of some other person ; Mamin 
 v. .Iffj.. V, •.» Ohy. r\\. 15 ; l.'iilh- v. Wri-ilil, 1(1 (Jr. Tuit ; I'riidni v, O'Snll, 7 p 
 \\. 52; li'iirf V. <r/.n,,ii,', 7 !'. II. ',55! » ; Ih'lnnri/^ v. Miu-Lcllmi, 13 1'. K. &. 
 I'^speeially if such other jierson is i/iit of the jurisdiction, tlioui,di the plaintiff 
 had a nominal interest; //' iiaii n l.ahf Lunilicr f'o., 11 I'. I{. 314; see also 
 Siriiiii V. Fullmrs., IS (^. I!. I). 5,S5 ; and see Part liairmi A- L. S. Bii. ('". v. Sualli 
 Niirfiill: I'll. (_'ii., 13 I'. U. 827, where an appli(;ati<in for security for costs Wiis 
 nuide, on tiie Hr'>imd tiiat tlu' plaintiff eom]>any was allef,'ed to have no cor- 
 porate existence, and was alle;,'e(l to lie suiiij,' on behalf of a third person who 
 was insolvent. So where the plaintiff is only one of a larjic nmnber interested 
 and tile Court is satisfied that he has hi^en put forward by the others to institute 
 the suit, and he is a man of no means : J/i'/liirm/ v. />"/'/, !( P. H. Ill ; ('lady 
 .v. < iill,-iri,ir\ 10 P. 1{. 2(15; Vi'.' Srrnilh /•;. C. /,',/,/. .S,»-., 51 L. T. X. S. 1011. 
 l>ut this ))riticiple doe> not ajiply where the plaintiff asserts a cause of action in 
 whi(tii no one l)Ut iiinisidf is interesteil : <'hii-Lr\\ Utiimi 'finilirr Truii.'^/xirl Co., 
 10 l*. R. ;>S4 ; nor where the plaintiff iiimself has an interest in tiie suit which 
 is brouf,dil partly for tile benefit of another: Widl/n-u/i/r v. Triis/ A- Lihui C'c., 
 l;i 1'. R. 1)7; but the interest must lie sulistantial and not merely nominal; 
 /)f/riii'\i/ V. Miiil^iUiiii^ yii/irii. But an assignee in insolvency Ihuk'i //(/c suinjf 
 in tile discharge of his duty will not be ordered to give sf^curity, tiumgh 
 without means and not beneficially interested : Vars v. ilnuld, S 1'. R, 31 ; nor 
 will a receiver of an insolvent comiiany continuing, by onler of the Court, an 
 action lirought liy the couiiiany : /'mriiirid/ I/is. Ci. v. (i'(iii(/cr/iiim,7 1*. R.2(<,S; 
 nor an official ii((uidator: OiWi'll v. Tin/lir, 31 Cliv. 1). 'M. The doulits 
 e\])ressed as to such cases in I'linloi/'H IrtiMi'i' v. W'/ic/hcm, 28 Ch. 1). 38, were 
 dispelled in <' nrfll v. Tniflur, sn/n-n ,34. 
 
 Qitirri , whether the rule that secui'ity is not ordered against one only of 
 .several plaintiffs was ever apjilicalile to the case of an insoheiit iiluintiff suiiij? 
 for. the benefit of another : /////(;/ v, C/'irk; 12 P. H. 21t. 
 
 Wiiere the plaintiff ))arts with his interest prii'lnitc lift; further proceedings 
 may be stayed until security is jfiveii or the suit ri'vived in the name of tiie 
 assignee: Sirai v. Ai/nnis, 7 i*. K. 147 ; see also .Sivvo' v. I.tinsini, 1(i Cli. I). 
 121, and dnalb'ii v. Einnnl/, 15 C. H. 21)1. 
 
 I'd vert V of the 
 ./,i,;/,i,:i, 8 M. ^- W 
 31 Ch I), at p. 38 ; 
 
 Ulitiih'.i V. hiiirxiiti 
 
 married wonum 
 
 plaintiff is no ground alone for asking security; K".ts \, 
 
 135 ; Sir,;iii,iiii'v. Murriann. 10 P. R. 441) ; Cincrl'l v. Tui/htr, 
 
 nor his insolvency where he is suing for his own lieiietit : 
 
 Ki *i. I», I). 548; not even though the iilaintiff lie also a 
 
 \/rh'ii)/ v. Ilii/.cr, 12 P. R. 341; but insolvency was under tin- 
 
 Insolvent Act of 1875 ; see s. 3!), and lii-Drldchank v. Kiin/'.i hi/nn SImmnluji 
 Ce.,3C. P. D. 3(J5. 
 
 Where the Insolvent Act of 1S75 ajiplied, and an undischarged insolvent 
 sues, sec. 3!tof that Act was imperative and entitled the defendant to security a.« 
 of right: l/mii/iliric.'i v. llKiiindji, 7 P. K. 18!( ; and will be granted since the 
 repeal of the Insolvent Act, in any case where the in.solvent'H estate iiad ve.'itwl 
 ill the .\ssignee prior to the repeal : Cuupfr v. Kirk/xilrir/.; 8 P. K. 248 ; and 
 though the defendant liiwl de:ilt with the plaintiff knowing him to he an iusel- 
 vent; Ciirni/I v. IIV//(Vo/(,v, 2 C. li. T. 151. The right may, liow(wer, be waived 
 liy not applying at a in'oper stage of tlu' cause ; Riififi/mni v. McMit-ihi; 8 P. K. 
 14. Th(^ rule as to when it is too late to a])ply is not the same, however, 
 as formerly ; .see note p. !)42 ; see i'nitcti Tiicjihitiie Co. v. /io.swofe, 31 Ch. 1). 
 (>3(). 
 
 X motion for security was refused where the plaintiffs, resident out of the 
 jurisdiction, had rtxjovered judgment, and the defendant w;is ap])ealing imd 
 
T 
 
 SECURITY FOR COSTS. 
 
 945 
 
 rred to in llateleii v. 
 ibtaiiU'd ticc'iUisc the 
 (in V. M(Wiill<rJ\V. 
 get rid nf tlii' (irdtr, 
 lanintce tliiit lie will 
 I'csciiided ; Mni'sli v. 
 
 if tlif iiliiiutitf is 
 
 utlicr jn'i'sdii : MiiKiiit 
 'nitlri/ V. O'.VnV/, 7 1'. 
 ■Lrlhni, 13 r. H. (A 
 1, tliouj,di the l)liuiitilf 
 1 I'. R. m4; see als.i 
 
 A. S. Jill- ''"-v. Soiilh 
 security f(ir ensts Was 
 lej^ed to liavi' iiu fiir- 
 of a third iicrsun wlio 
 rifc nuiiiliiT iutcrt'stcd 
 
 tiie others to institute 
 7, <l P. K. !ll:'7"//.v. 
 ;•., ol L. T. N. S. Kill, 
 rts a cause of action in 
 ■ Tiiiilicr Tniiifijiiiii Co., 
 erest in tiie suit wliieli 
 (' V. Tntal <!• Li'ini ''"., 
 
 not merely noniiuid : 
 Ivenoy Ikiik'i .lid'' sviin^ 
 
 jrive s(?curitv, tlumfc'h 
 (iiuilil, S 1'. H. ;n ; n(jr 
 order of the Court, an 
 ;nn,ln-lii'ia,7 l'.H.2S3; 
 ■. 1). 'M. The d(i\ilits 
 I' III, 'i.S Ch. 1). 3f<, were 
 
 ■d aj-'ainst (">e only ef 
 isolvent plaintiif suiuj,' 
 
 I', further iiroceedinRs 
 
 ed in the name of the 
 
 V. I.tncsdii, 1(1 Ch. D. 
 
 :inK security : W'w v, 
 
 . Wf, C'liirllw TaijUir, 
 iL' for his own benefit : 
 
 the plaintiif lie also a 
 isolvency was under the 
 
 ■//(Y'.s 'Lipin Steaiiiihip 
 
 vindischarpred insolvent 
 defendant to security a.« 
 11 l)e granted suice the 
 [vent's estate had vestei 
 /,■/,■/,-, 8 P. K. '-'48 ; and 
 wing him to be an uisol- 
 „ay,how<-ver,l>e waived 
 „„ V. McMnsln;SV.V.. 
 not the same, liowever, 
 V. /j((.s.«nie, 31 Ch. 1>. 
 
 tiffs, resident out of the 
 hint was appealing ami 
 
 alleged that since recovery of the judgment, the plaintiff.s had removed their Rule 12M, 
 assets out of the Province": Ecchanije Hank v. liarnex, 11 P. R. 11. 
 
 Where the i)lainti<f is a coriioration the fact that it is insolvent and a receiver 
 .if nrotits ai (pointed is no ground for security : Ihirtm'iuth Harbour Commission 
 V. MaiinrnflHrtinxilh, 34 VV. R. 774; 55 L. J. Q. B. 483. 
 
 Other Grounds for Oranting Security for Costa.— Security may also be Aupther 
 applied for under some sjiecial provisions, <:;i., (1) where another suit is pending f<;'\°P 
 in respect of the same matter within or without the Province : see Rxk 1243 ; ^{;""^dr 
 (2) where costs of a former suit in res))ect of the same matter are unpaid : Ih., 
 net however, where the costs of the former suit were not payable by the Costs of 
 plaintiff but out of an estate : Curtis v. McXahh, 7 P. R. 24G : I'ctrrs v. Till)/, former suit . 
 11 P. I). 145 ; (3) formerly where successive actions of ejectment were brought : unpaid. 
 R.S.' 0. c. 51, s. 73 ; ma^-lrinstroH!/ v. Montiioinern, 5 P. R. 4(51, and ('Immhers „ j-^^. , 
 
 V. l'n<ier, C P. R. 101 ; but this is not now jn'ovided for otherwise than under Rnle ^ictjons of 
 1243, as the rule is now that a judgment for the rticovery of land is conclusive ejectment... 
 where it would be so in any other kind of action ; (4) in actions for penalties, 
 on ail affidavit of merits and showing that the informer is not jio.s.sessed of Suits ft)i! 
 .siitfi(!ieiit means to answer for costs: see /^<;t' 1244, and Kir v. ir(7/t((w,s', 79 P6°8,lties. 
 L. T. Jour. 22!) ; W. N. 1880, 10 ; and (5) in actions for libtl under R. S. O. Libel. 
 1887, c. 57, s. !». 
 
 Qnwrr whether security will Ix) ordered in a vexatious or frivolous action ; 
 P„lt,-r V. Cotton, W. N. 187!), 204. 
 
 It will not be ordered in an alim(my suit : Iknnett v. liennetl, 7 P. R. 54. 
 
 ■Security if applied for promptly, is generally for pastas well as future costs: 
 RiwkU-hiuik V. Kinifs Lynn, etr.\ 3 C. P. I). 305; Mnssey v. Alien, 12 Ch. D. 
 HO"; lluti'Ifii V. Mrrc/iuiits Despatch, 10 P. R. 253. 
 
 Amount of Security.— See Rule 12.50 and notes. 
 
 Master's Office. — Parties residing out of the jurisdiction, coming into the 
 Ma.ster's office to prove claims as creditors or otherwise, may be required to give 
 security for costs : Re Recs, Un/uliart v. Tirronto General Trmts C't>., 10 P. R. 
 425. 
 
 Garnishee Proceedings. — Security has also been ordered to be given by one 
 
 of the jiarties to an i.ssue arising out of garnishee ])roceedings, where he was 
 resident out of the jurisdiction: ('anitiliKii Bank of Commerce v. Midillelon, 12 
 P. R. ILM : Edirarifs v. Eil.mrih; 12 P. R. .5.38. 
 
 Interpleader Proceedings.— In an interi)lHader matter either party : Swain Inter- 
 V. SInilil'irl, 12 P. R. 4i)(); Walker v. Xi/cs, 3 Chv. Ch. 108 ; /Mlcr v. I'rickett, pleader 
 20 L. .). 'l B. 151 ; Tomlinson v. Land ,P Finance Co., 14 t^. B. D. i"*?!*, may ^'/^^ ?;^' 
 he ordered to give security under the same circumstances as a plaintiff in 
 an ordinary action; and so form rly in replevin the defendant: !<cll)ii v, 
 I'nitrlil'-!/, 2 J{, & H. 505; 4 Moo. 280. The substantial and not the nom- 
 inal interest of the parties must be looked at, and therefore wliere one of 
 the defendants in an interpleader issue was really interested in the result 
 thereof as a i)laintitf, lie was iield not taititled to call upon the plaintiff in the 
 is.,iie to give .security for costs ui)on the ground that the latter was a foreigner 
 residing aliroad : Jt'clmontc v. A//iiard, 4 C. P. I). 3i52. 
 
 A slieritf in interpleiwler proceedings is (mly entitled to security for costs 
 imder tile same circumstances as would entitle an ordinary litigant thereto ; 
 Simdiiiiin V. Morrison, 10 P. R. 440. 
 
 A defendant residing oi t of tiie jurisdiction has a right to take any prcceed- 
 ingtodefi-nd himself: /{-■ I'crcii A-' Killii Nickel, etc., Co., 2 Cii. I). 531; either 
 HKiiiiist the plaintiff or by claiming relief against a co-defendant : H idmsleii v. 
 'Iiylidi, 11 P, R. ]3i); or may present a petiticm: Cochrane v. Feanm, 18 Jur. 
 ■i<W, without beiny called on to give security for costs. 
 
 Defendant, where Ordered to Give Security for Costs.— In an action forOounter- 
 hreach of contract against defendant, a foreigner residing abroad, where the claims, 
 defendant denied the breaches .and also made a counter-claim for breaches 
 'if the same contract by the plaintiff, claiming damages to an amcmnt less 
 
 J. A. 60 
 
$M^^mm$^-M. 
 
 946 
 
 COSTS. 
 
 Jtules 
 1246, 1247. 
 
 %. 
 
 * 
 
 m 
 
 ^ 
 
 Time for 
 
 % 
 
 fflvnifiiecu 
 ri ty for 
 costs may 
 be liuiiteil. 
 
 %. 
 
 
 il 
 
 
 than the jilaintiff's claim, it was held that the defendant could not l)e 
 ordered to give security for the jjlaiiitiff's costs occasioned by the coimter- 
 claini : MttpleHun v. Masini, 5 Q. B. D. 144. So in prosecuting u claim to 
 to land before the Keferee of Titles, a contestant served with notice will imt W 
 prevent(!d from asserting his rights until jjuyment of costs of iivot'cctiim's 
 instituted by him against the claimant, in respect of the projierty in (|\i('sti(ni 
 ordered to lie jiaid by the contestant : Sliijihinl v. llaiihall^ KV (Jr. tWl ; see 
 also A'c Pircji .f KHl]/ .\i(M, rl<\, Ca., 2 Ch. 1). 531. Where a dcfcmlaiit 
 admitted the cause of action sued upon and .set up a counter-claim fcniiidwl 
 iijton a distinct transaction, he was held not entitled to security for costs fiDm 
 the plaintiff, a foreigner, residing without tlic jurisdiction : Wintirjirlil v. /)/■»</- 
 Hum, 3 C^. ]?. 1). 324. In the Admiralty Division, in an action of oollisidii. a 
 defendant claiming damages by comiter-claim was ordered to give scciiiity for 
 the ])laiiitifT's costs of the action : Tin' Jtilin Fix/ifr, 2 P. i). 11."). 
 
 Where a claim and coimter-claim arise out of diflferent matters, so tliat the 
 coiniter-claim is really in the nature of an independent or cross actioji, the 
 defendant, if residing out of the jurisdiction, may be required togive security and 
 should be so required, if the only dispute in the action is on his counterclaim ■ 
 .Sy/r.v V. Sairrth,ti, 1.5 Q. B. D. 423; /,(//.(■ v. llnsclthu; 55. L. J. t^. 15. 20.5; see 
 also The ynrlml/lc, 54 L. .1. (P. D. & Ad.) 1(). 
 
 Security will he ordered to be given by a jier.scm out of the jurisriictioii 
 ajmlying to be added as a party and for leave to ajijily for substantial relief, 
 as he nnist be considered as in the position of a plaintiff : Aju'/liiiari/i (». v. 
 W'ilsoH, 31 Ch. D. 032. 
 
 1340. Where a defendant in any action is entitled to 
 obtain security for costs from a plain'itf, the Court or Judge 
 may require the plaintiff to furnish the security within a 
 time to be limited in any order for such security, or by any 
 subsequent order. 
 
 (a) If the plaintiff fails without sutlicient excuse to com- 
 ply with such order, he shall be liable to have his action 
 dismissed as for want of prosecution, with costs, and the 
 Court or a Judge may make an order accordingly. 42 V. 
 c. 15, s. 2. 
 
 See note to Bnlc 1242, p. 940. 
 
 "Security 
 for costH 
 where 
 given by 
 bond. 
 
 1247. Where a bond is to be given as security for costs, 
 it shall unless the Court or a Judge otherwise directs, be 
 given to the party or persons requiring the security, and 
 not to an officer of the Court. J. A. Rule 430. 
 
 Identical with the Eng. R. A\)v\\, 1880, R. 41, and in accfirdance widi the 
 jiractice at Common Law. The Chancery Rule required the bond to be given 
 to tlie Registrar or Deputy Registrar. See Mtmro v. McLeml, 7 I'. K. i)'A. 
 
 For form of bond seeChitty's Forms, 11th ed. 220; Leggo's Fonns, 2nd«i., 
 Nos. 3(10, 3!»7. 
 
 One surety only may he sufficient : Beaton v. Botmicr, 1 C. L. J. 108 ; }<Ui(h(r 
 v. A'oWf, !l P. R. .534. The formiT Chy. Practice was that(m(^ was sufficient, 
 unless the defendant before the bond is jirepared, gives notice that he requires 
 iiiore : DonnvUii v. Jones, 4 Chy. Ch. 48. 
 
 The sureties must be solvent; Cliffc v. Wilkinnon, 4 Sim. 122; and if the 
 security becomes altered by the death or insolvency of a surety, fresh security 
 
 
 t^ / % 
 
 
SECURITY FOR COSTS. 
 
 947 
 
 ■fendaiit Cdukl not In- 
 iionecl by the c(i\ii\tei'- 
 jirosecvitiiig a daim to 
 
 with notice will luit t)f 
 )f costs of ])r()U('(t(lint's 
 u' iirojierty in (iiu'sticm, 
 hti/lxdl, IS til'. (IISI ; see 
 Where a (lefeiKlaiit 
 \ coiinter-claim founded 
 :> security for costs from 
 on : Wlii/crjiild v. liriul- 
 an action of collisicni. a 
 ered to ix'wt' security for 
 P. 1). ll.>. 
 
 ent matters, so that the 
 lent or cross-action, tlie 
 nired togivesecurityfiiid 
 
 is on his counterclaim; 
 
 55.L. .T. CJ*. 15. m5;see 
 
 I out of the j\n'isdietioii 
 )ly for substantial relief, 
 n'tiff : Aji'illiiKtri" Cn. v. 
 
 ,ction is entitled to 
 the Court or Judge 
 
 e security witbin a 
 security, or l)y any 
 
 ient excuse to corn- 
 to have his action 
 ith costs, and the 
 
 iccordingly. 42 Y. 
 
 ls security for costs, 
 therwise directs, be 
 g the security, and 
 ule 430. 
 
 <1 in accordance with the 
 Hired the bond to lie given 
 
 . McLmI, 7 P. K- *<• 
 ; Lt'ggo'8 Foniis, 2nd ed., 
 
 as that one was suHieient, 
 ives notice that he requm- 
 
 „, 4 Sim. 122; and if the 
 of a surety, fresh securitj 
 
 ^. 
 
 
 may he required : Lnutour v. Hnlcoiiihr, 1 Ph. 262; Veitch v. Irvine, 11 Sim. 122; Rules 
 ft'rt.w V. Camidn Publinhin;/ Co., 10 P. R. 1(59 ; Morgan & Wurtzburg, p. 22. 1248-1260. 
 
 The former Chancery practice was for the opposite party within two day.s 
 after heing served with notice of filing to give notice of moti(m to di.sallow tlie 
 l«)nd, otiierwise it was considered sufficient. The Common Law jiractice was 
 for the party filing the Ixmd to take an apixjintment from the Clerk or Deputy 
 Clerk (if the Court for the allowance of the bond which was served with notice 
 of filing ; and the latter practice seems to be the one generally followed now. 
 
 The iilaintiffs solicittir should not be a surety : Hcckitt v. W'rann, 1 Chy. Ch. 
 Ti; <1. T. Ril. Co. v. O. <t Q. Rii. Co., 3 C. L. T.'l73. 
 
 Tile pliiintiif, iusteiul of giving a Ixind might formerly ex parte obtain an 
 Older p-ivliig leave to pay .S400 into Court: Cli,ffe v. WHkinmv, 4 Sim. 123; 
 UmiiiiiH v. rincli, 3 Chy. Ch. 2!>f>; see also i?r lloivlitnd, 4 Chy. Ch. 0; Luther 
 V. M'linl, 2 Chy. Cii. 17;') ; and may now under Rule 1240 pay in not less than 
 s20() witliout an order. The Accountant is the projier i)ers(m to receive the 
 money, Pavnieiit to a Local Registrar is n(jt regular or sufScient : Lcroux v. 
 i<(i/(/i(i/-, 2C. L. T. 48. 
 
 124H, Whenever a party is under an obligation to give j^^ioney^ 
 a bond as security for costs, he may, without special order, paid into 
 pay into Court a sum of money not less than half the^°""' 
 penalty of the bond required, and the same when so paid in 
 sball stand as security in lieu of the bond required. New, 
 
 See note to /i»/(' 1247. 
 
 It is presumed that the ordinary pnveipe order for security lieing sufficiently 
 and in practice ordinarily complied with by the giving of a bond for ^H)i), the 
 jiarty is "under an obligation" to give a bond within the meaning of this Rule 
 thougii the pnrcipe order does not in tenns direct a bond to be given. 
 
 If the money jiaid in is not sufficient the opposite party may apply under 
 Rule li'iO to have " further " security given. 
 
 The money must be paid into Court to the credit of the cause, in the same 
 way as other moneys are i)aid into Court: see Rulefi 1()3-171 p. 240, et .leq. 
 Deiiosit of the money with a Local Registrar is invalid : Leroux v. Lauthier, 
 
 i^upra. 
 
 124fK The party so paying in money shall when paying Notice to 
 the same in state the purpose for which it is so paid in, and 
 shall forthwith serve a notice upon the opposite party 
 specifying the fact and purpose of such payment. JS'ejc. 
 
 To comply with this Rule the pnrcipe for the direction of the bank, necessary 
 under if h/(.v KUJ, ]ti7, sliould contain a statement of the purpose for which the 
 money is paid in. 
 
 1350. The amount of security may be increased or Amount 
 diminished from time to time by the Court or a Judge, varied.*' 
 New. 
 
 The security given under a prrecipe order under Rule 1242, could not fonnerly 
 lie reduced without reason being shewn, and it was held that such retluction 
 was not authorized by Rule 1245 : Riddell v. McKay, 11 P. R. 459. See now 
 
 Rule 124S. 
 
 Security given under a prwcipe or sjiecial order might even l)efore this Rule 
 nave iieeji in a proper case increased. This was refused where the u.suai 
 aiiHiunt, !*4()0, was likely to be insufficient only by reason of an adjournment of 
 
 
 '1^ 
 
 /* ^' 
 
 
948 
 
 Rules 
 1261, 1262. 
 
 COSTS. 
 
 the hearinp, owinp to the Judge having to close the Sittings to take aiinthcr 
 Circuit, and it was not shewn tiiat defenchint migiit not at the outset have 
 applied for a larger sum than §4<I0: Ikll v. Limiluii, W P. K. KMI. Alsd where 
 the trial was postponed on terms, and the giving of seou'ity was not '■- ' 
 as one of the terms : Simnn v. Lii JidiK/m Nutionnlc, 7 1'. K. 422. 
 
 : iiii|Kisfil 
 
 In a suit by a foreign government 4.'12(< security for costs liad hteii given 
 Vjefore The Jiii/ic ittirv Act came into operation. -V large amount of eu^ts Wdulil 
 be iticiu'red before the suit was heard, and further secm-ity to tlie ami unit nf 
 £500 to cover future costs was, under the Kule corresponding to linh- V1V\ 
 ordered to V)e given; further seciu'ity, it was said, could not lie given fur jaiM 
 costs: I}<pnlili(' of ('oMii liica v. Kr/<iii;/<i; .'i Ch. 1). 02. In I'd.rtini v. Hdt, \V. 
 N. 1K70, ])]>. 221, 24!), it was held that the old Chancery rule as to the anumnt 
 of security for costs must prev.ail in the (Jhancery Division, unless some s|)eciai 
 reason could be shewn for increasing thi' amount. 
 
 In a matter in the Surrogate Court security was directed to be given to the 
 amount of $200. Subse(juently the matter Wiis removed to the Chancery 
 Division, nothing at the time being said as to further security. On motion 
 further security was ordered : Julinxton v. Wilnon, 4 C. L. T. 2i)l. 
 
 Security on 1351. Where an action is broup;ht by a foreign plaintiff 
 
 motion for ... , . . ^^ . •' . P . ^ . 
 
 judgment, liable to give security tor costs, who indorses his writ of 
 summons with particulars of his claim in such a manner 
 that, upon motion under Rule 739, an order allowing him 
 to sign judgment might be made, he may, on being served 
 with an order for security for costs, pay into Court the 
 sum of $50, as a partial compliance with such order, and 
 thereupon he shall be at liberty to proceed with a motion 
 for judgment under Rule 739, but the Otder for security 
 shall, nevertheless, in all other respects, have its full 
 operation and eifect. Xeir. 
 
 This Rule is intended apparently to remove the obstac e which formerly 
 existed to the i)laiiitilf taking any iiroceedings until lie had conijilied witli an 
 order for security for costs or ol)tained its discharge : see llm r v. Raiid, 10 P. 
 R. 105. 
 
 Judgment 1359* If u])on such a motion the plaintiff is allowed to 
 
 for part. . . , / ,. , . i i • i • i 
 
 Sign judgment lor any [)ortion or his claim, he may sign 
 judgment and issue execution therefor, but shall not take 
 any other proceedings until the order for security shall 
 have been fully complied with. New. 
 
CHAPTER XIV 
 
 COUNTY COURTS. 
 
 1353* All writs issued in the County Courts sliall be j^i writs to 
 issued by the Clerk and shall be under the seal thereof, and thoseai of 
 shall be tested in the name of the Judge thereof; or in the a.'.a ^esteill 
 case of the death of such Judge, then in the name of the'''"- 
 Junior or acting Judge in the County Court for the time 
 being. R. S. 0. 1877, c. 50, ss. 6, 8. 
 
 1S54« The several County Courts may issue writs ofsubpoeuas 
 suLpd'iia ad testificandum, to enforce the attendance of any 
 witnesses resident within Ontario, and also writs of suhpanui 
 duces tt'cum, to enforce the attendance of and the produc- 
 tion of deeds and papers by any such witnesses and may 
 proceed against persons who, having been duly served with 
 a suhpa'iia, disregard or disobey the same, with the same 
 powers, in like manner and by the same mode of proceed- 
 ing as belongs to and is practised in the High Court. 
 R. S.O. 1877, c. 62, s. 16. 
 
 135*5. Subject to Rules of Court, the Judges of the-fu'ifios 
 County Court shall have power to sit and act at any timeaiiythue. 
 for the transaction of any part of the business of such 
 Courts, or for the discbarge of any duty which by any 
 statute or otherwise was formerly required to be discharged 
 out of or during Term. J. A. Rule 488. 
 
 Tliis c(.iTesiK>u(l» with the powers given to the .Judges of the High Court of 
 Justice and the Court of Ai^ieal by sec. 1!) of tlie J. A. Act, 1881, (see now sec. 
 57). 
 
 1356. In all actions or other proceedings brought in^osts 
 any County or Division Court in Ontario, in which the tion laiis 
 plaintiff fails to recover judgment by reason of such Court jurisiiic* ° 
 having no jurisdiction over the subject matter thereof, the'^""- 
 said County Court, or the Judge presiding in the said 
 
 iO 
 
 5^- 
 

 950 
 
 COUNTY COURTS. 
 
 Rules 
 1267-1269. 
 
 
 ^ 
 
 ^5. 
 
 Division Court, as the case may be, shall have jurisdiction 
 over the costs of such action, suit or other proceeding, and 
 may order by and to whom the same shall be paid, and the 
 recovery of the costs so ordered to be paid may be enforced 
 by the same remedies as the costs in actions, suits or pro- 
 ceedings within the proper competence of the said Courts 
 respectively are recoverable. J. A. Rule 489. 
 
 Not in the English Rules. 
 
 Where an apiteal from a County Court was struck out on the gnmiul that 
 '"'e order giving leave to appeal had been granted by a Judge iit Clianibers 
 v.ithout jurisdiction, and there was, therefore, no jurisdiction to entertain the 
 i'lj'X'a', the Court of Api)eal from Inferior Courts held that tliey had j 
 flower to grant costs to the jiarty who appeared to shew cause against ii. 
 Itrawn v. Shaw, 1 Ex. 1). 425 ; see also Abbott v. Feary, 29 L. .J, Ex. 47ti; and 
 Peacock v. Ren., 4 C. B. N. S. 2G8. 
 
 Where a case was stated by Justices under 20 & 21 Vict. c. 4.3, but in con- 
 sequence of the apiiellant not having complied with the conditions required by 
 that Act, there was no jurisdiction to hear the case, and the respondent moved 
 to strike the case out of the paper, the application was granted with costs; 
 (treat Xorthern, etc., Committee v. Iiiett, 2 (.]. B. D. 284; Crow/her \. Bmilt,SS 
 W. R. l.W ; not following Peacock v. Ke(i., mipra; see also Roiial Cantidiun Bank 
 V. Stevenson, 22 U. C. C. P. 502. 
 
 But for this Hide the Court would have no ix)wer to make any order for costs 
 in a case in which it had no jurisdiction : Pnwki/ v. Whiteltetdl, 1(1 U. C. C^. B. 
 589; Dempster v. Piirncll, 3 Si. & (rr. 375; but see Re Isaacs, 4 My. k Cr. 
 
 is 
 
 Procedure 
 in County . 
 CourtB. in 
 
 1357< The pleadings, practice and procedure in actions 
 the High Court of Justice shall apply and extend to 
 actions in the County Courts. J. A. Kule 490. Alteir.d. 
 
 No corresponding English Rule. The original Rule 490 limited the ajijilica- 
 tion of the procedure of the High Court to cases where "tlie present iileadings, 
 practice and procedure of tiie County Courts corres|K)nd with those of tlie 
 Su|)erior Courts of Law.'' Tiie oresent Jiide makes the procedure the same in 
 all cases withiji the limits of trie jurisdiction of the County Courts, and 
 subject to any special Mules, such as RnUs 1259-12()4. Doubts were formerly 
 entertained as to the application of many of the Rules, e.ii., Itule 75.5: see 
 McConnell \. WilUanuf, 13 Ont. Api). 43S ;'««/(■ .52(>: see H7///((w.s v. ( Voic. 10 
 Ont. App. 301 ; and Rule .510 : see Feriiusoii v. McMartin, 11 Ont. App. '31, 
 and now R. S. O. c. 47, s. 41. See also notes to sec. 158 of the Act, p. ll'O. 
 
 Motions 
 against 
 
 Vms, In actions in the County Courts motions against 
 Tudgments. judgments and for new trials shall be disposed of upon the 
 like grounds and principles as in the High Court, iia 
 n. S. 0. 1877, c. 50, s. 292. 
 
 Notice of 
 motion. 
 
 ISJiSI. Every motion against a judgment or for a new 
 trial shall be a two clear days' notice, and the motion 
 shall be set down at least one clear day before the first day 
 of the sittings for which the notice is given unless other- 
 wise ordered. Hce R. S. 0. 1877, c. 50, s. 293. 
 
COUNTY COURTS. 
 
 951 
 
 1260. In all actions brought in a County Court the |^2'ilf.i262 
 Judge of the County Court where the proceedings are com- ciianse of 
 menced, [or the Master in Chambers,] or one of the Ju^^gss I'^ace, of 
 of the High Court sitting at Chambers may change the county 
 place of trial according to the practice now in force in the ^""'^'" 
 High Court ; and in the event of an order being obtained 
 for that purpose, the Clerk of the County Court where the 
 action was commenced shall forthwith transmit all papers 
 in the action to the Clerk of the County Court to which the 
 place of trial is changed, and all subsequent proceedings 
 shall be entitled in such last mentioned Court, and carried 
 on in such last mentioned County as if the proceedings had 
 originally been commenced in such last mentioned Court. 
 R.S. 0."l877, c. 50, s. 155. 
 
 The jurisdiction {)f tlm Master m Chambers doubted in Bri<jham v. 
 MeKiii:i(, 10 V. R. 4()(|, has Iwen made clear in the consolidation of the Rules 
 by tile insertion in this Jitilc of the words in brackets. 
 
 130I* Every County Court Clerk shall keep his office offlce^^ 
 open for the transaction of business on every day except oncierksof 
 holidays, and except as hereinafter provided from the hour court's! 
 of 10 in the forenoon, to the hour of 3 in the afternoon. 
 On and between the 1st day of July and the 31st day of 
 August, and on and between the 24th day of December and 
 the 6th day of January, every such Clerk shall keep his 
 office open for the transaction of business, from 10 in the 
 forenoon until noon ; and during the Statutory Sittings of 
 the Court, such Clerk shall keep his office open as afore- 
 said, on and between the said dates until 4 in the afternoon. 
 J. A. Rule 534. 
 
 1362. Money to be paid into the County Court, or Sur- Payjnentof 
 rogate Court of the County of York by any person, shall be court, 
 paid into some incorporated bank designated for this par- 
 pose, from time to time, by order of the Lieutenant-Gover- 
 nor in Council ; or where there is no such bank, then into 
 some incorporated bank in which public money of the 
 Province is then being deposited, and which has been 
 appointed for this purpose by any General Rule or Order 
 made in the same manner as other General Rules or 
 Orders of the said Courts respectively are by law directed 
 to be made ; or if no bank has been so appointed, then into 
 any bank in which public money of the Province is then 
 being deposited. 
 
fi '■^l''";f^?fP f'' '' 
 
 % 
 
 ^ 
 
 
 ^ 
 ^ 
 
 ^» 
 
 5l 
 
 <:^i 
 
 ^i 
 
 952 
 
 COUNTY COURTS. 
 
 With- 
 drawal 
 
 i263\264. ^^^ ■'"^^^ money shall be so paid in to the credit of the 
 Procedure. causB or matter in which the payment is made, with the 
 privity of tbe Clerk or Registrar (as the case may be) of the 
 Court, and in no other manner ; and such money shall 
 only be withdrawn on tbe order of the Court or a Judge 
 thereof, with the privity of the Clerk or Eegistrar of the 
 Court. 
 
 pa\Mi°Jat ^^^ AVhere money is so paid in under a plea of payment 
 
 jiuocourt. into Court, the Clerk, on the production of the receipt of the 
 
 bank for the money or other satisfactory proof of such 
 
 payment, shall sign a receipt for the amount in the margin 
 
 of the pleading. 
 
 Clerk or 
 Kefiistrar 
 to keep 
 books and 
 render 
 state- 
 ments. 
 
 12(S:{. The Clerk and Eegistrar of said Courts shall each 
 keep a book or books containing an account of all moneys 
 so paid into their respective Courts, and of the witlidrawal 
 thereof; and shall prepare in the month of January in 
 every year a statement of all moneys so paid in and with- 
 drawn respectively, and a statement of the condition of the 
 various accounts upon ihe thirty-first day of tbe preceding 
 December, and shall transmit to the Provincial Secretary 
 and to the Judge or each of tbe Judges of such Courts, a 
 copy of such statement, with a declaration thereto annexed 
 made before a Justice of the Peace or Commissioner for 
 taking affidavits, in the Form No. 217 in the Appendix. 
 
 Fees for 
 extracts, 
 etc. 
 
 o^enfor''^ 1364. The book or books so to be kept shall be open for 
 inspection, inspection within office hours ; and tbe Clerk or Pcgistrar 
 shall give a certificate of the state of any account or an 
 extract therefrom at the desire of any party interested, or 
 his attorney or solicitor on payment to tbe Clerk or 
 Eegistrar of the sum of twenty cents for such inspection or 
 certificate and the sum of ten cents per folio for such 
 extract. E. S. 0. 1877, c. 42, s. 25. 
 
 
SCHEDULE. 
 
 953 
 
 SCHEDULE 
 Of Rules and Orders not Repealed. 
 
 Dkscbii'TIOn of Title on Okdku. Extkxt to whuii Uxuki'i;ai,ki>. 
 
 Rules of the Court of Queen's l^euch and Tlie whole. 
 Conundu Pleas of 7th Feb., 1h7(). 
 (Crown cases reserved.) | 
 
 Orders of the Court of Chancery, 
 tioii Court Rule.) 
 
 (Elec- Order ()18. 
 
 Rules of the Supreme Court of Judicature. Kules lOH and i'M referring to 
 
 proceedinj^H pendii' >,' iit the 
 time of passinj^ t'.ie ■hitli- 
 ctitin-f Art : ii'M refei'rin^ 
 to aelection of n tti Judges 
 for trial of eh ction peti- 
 tions ; and (i",)") referring to 
 Fees in Surro^'ate (Courts 
 and fees of Clerks of the 
 Peace. 
 
 Rules relatint; to controverted elections of 
 nieiuhers of the House of Commons, 
 passed I'ith Feb., 1875. 
 
 The whole. 
 
 Rules of the Court of Appeal relatiiif^ to;The whole, 
 controverted elections of members of 
 the Let^islative Assiembly of Ontario. 
 
 The following lii(lr ])as.sed on Nov. 17, 188('>, under tlii' authority of 4!) V. e. 
 ■1st, s. (i (]).), now K. S. C. c. 178, s. i)0, i.s not mentioned in the above .schedule, 
 but, as it does not relate to civil matters, it is ju'obably unaffected by the 
 general rcijeal of the former Bn/fs by I'n/i' S. 
 
 "No motion shall be entertained Vjv this Court, c)r by any Division of the 
 same, or by any Judpe of a Division sittiiifjr for the Court, or in Ci)and)ers, to 
 quash ii conviction, order, or other proceeding- which lias been made by or 
 ))ef(irf' a .lustiee of the IViice (as defined by the .said Act) and brought l)efore 
 the Court by ci'iiinairi, (uiless the defendant is shown to have entered into a 
 recognizance, with one ov more sutticient sureties, in the sinn of !?1()(), before a 
 Justice or Justices of the county or place within which such conviction or 
 order has been made, or before a Judge of the Cinnity Court of the said comity, 
 orliefore a .ludge of the Superior Court, and which recognizance, with an atti- 
 davitof the diU' execution thereof, shall be tiled with the Registrar of the Court 
 ui which such motion isniade or is jx-nding, or unless the defendant is shown to 
 have made a de|)()sit of the like .sum of -SUM) with the Registrar of the Court in 
 which such motion is made, with or upon the condition that lie will prosecute 
 such (vw/ri;v(,/ at his own costs and charges, and without any wilful or affected 
 delay, and that he will jiay the jjerson in whose favour the conviction, order, or 
 iither proceeding is affirmed his full costs and charges, to be ta.xed according to 
 the course of the Court, in case conviction, order, or prtxjeeding is affirmed." 
 
i|g|;^ 
 
 
 ^ 
 \ 
 
 
 
APPENDIX 
 
 TO THE FOREGOING RULES. 
 
 (a) 
 
 PART I. 
 
 FORMS OP WRITS OF SUMMONS AND NOTICP: IN LIEU 
 
 OF SUMMONS. 
 
 No. I. 
 
 General Form of Writ of Summom, 
 
 In the Hitjh Court of Justice. 
 Division. 
 
 Between A. B., Plaintiff, 
 
 and 
 
 C. D. & K, F., Defendants. 
 ViCTouiA, by the Grace of God, etc. 
 
 To C. D, of in tlie county of , and E. F., of 
 
 We command you. That within ten days after the service of this writ on 
 you, inchisive of the day of such service, you cause an appearance to be 
 entered for you in an action at the suit of A. B. ; and take notice that in 
 default of your so doing the plaintiff may proceed therein, and judgment 
 may be given in your absence. Witness, the Honourable 
 
 President of our High Court of Justice at 
 in the year of Our Lord 18 . 
 
 Memorandum to he mbscribed on the writ. 
 
 N.B. 
 
 -This writ is to be served within 12 calendar months from 
 the date thereof, or if renewed, within 12 calendar months 
 from the date of such renewal, including the day of such 
 date, and not afterwards. 
 The defendant [or defendants] may appear hereto by entering an 
 appearance [or appearances] either personally or by 
 solicitor at the [ ] office at 
 
 Indornenientu to be made on the writ. 
 
 The plaintiff's claim is for, etc. 
 
 Where the writ is to be sperialhj indorsed add : — The following are 
 the particulars: — (Givinp them.. See Part U. post.) 
 
 This writ was issued by E.F., of solicitor for the said plain- 
 
 tiff, who resides at or, this writ was issued by the plaintiff in per- 
 
 («) As to the extent to whichanything contained in tlie Forms affects the 
 constmction of the Hiile.i see Hnlc 4.58 and note also Bnswcll v. Coaks, 36 Ch. 
 D, 441 ; .S(i W. R. 6.5 : McOread/i v. Hcnnessii, 9 P. R, 48!). 
 
 nm 
 
|; :'| . ;■ M 1^^^'IT 1 
 
 956 
 
 APPENDIX. 
 
 % 
 
 % 
 
 % 
 % 
 
 ^ 
 
 Cs. 
 
 
 son who rosidoH at [mention the city, toini, or toinixhiji, and aim 
 
 the namf of t)u- Mreot and niimlu'r of the Uoukc of tliv plnintijrn ir^nli'itir, if 
 liny, or in rosr of d townnliip, the number of the lot anil foncem'ion]. 
 
 Aluo the Indorsement \o. .3. 
 
 IndorHement to he made on the writ after nerrice thereof. 
 
 This wi'it was sorvcd by X. Y. on (!. D. (the (li'fendiint or oiif of tlie 
 defendiiutsj , on Monthly, the dav of , IH 
 
 (Signed) X. Y. 
 
 No. a. 
 
 ir;';7 /■()/• serrice out of Ontario. 
 
 between 
 
 I'laiiitiff, 
 , 1 >t'feiulivnts, 
 
 In the High Court of Justice. 
 Division. 
 
 C.I). lUK. 
 
 Victoria, by the Grace of God, etc. 
 To C. D., of 
 
 We command you, CD., that within [here innert the nnmlur of ihiij* 
 directed liij Rule li7:i, or ax the cnne may he], after the scu'vico. on you, of 
 this writ [or notice of this writ an the caxe may he , and of tlio iiliviiitiff's 
 statement of chiini deUvered herewith, inchisive of the day of siu'lisorvice, 
 you cause an appearance to be entered for you in an action at tlie suit of 
 A. ]J., and your defence tliereto, if any, to be dt.ivered ; and tai<e notice 
 that in default of your so doinj,' tiie plaintiff may proceed therein, anil 
 judgment may be given in your absence. 
 
 Witness, the Honourable President, etc 
 
 Memorandum and indorsement ax in Form No. 1. 
 
 Indorsement to he made on the writ. 
 
 N.li. — This writ is to be used where the defendant or all the defeiulants 
 or one or more defendant or defendants is or are out of Ontario. When 
 the defendant to be served is not a British subject, and is not in Jh'itisli 
 dominions, notice of the writ, and not the writ itself, is 1o be serv^l uiwn 
 him. 
 
 Indorsement to be made on the writ after serrice thereof : 
 This notice was served by X. Y., on G. H., (the defendant or one of tk' 
 deferuhints) on the day of 
 
 Indorsed the 
 
 No. 3. 
 
 day of 
 
 18 
 
 IH 
 
 (Signed) 
 (Address) 
 
 Xotice of writ, in lieu of writ, to he fiircn out of Ontario. 
 
 In the High Court of Justice. 
 
 Division. Between A. B., Plaintiff, 
 
 and 
 C. D., E. v., and G. H., Defendants. 
 To G. H., of 
 Take notice that A. B., of has commenced an action against 
 
 you, G.H.. in the Division of Her Majesty's High Court of 
 
FORMS — WRITS. 
 
 957 
 
 n / 
 
 I'liiiiitiff, 
 
 UK. 
 
 , Defeiulants, 
 
 tc, 
 
 
 tJii8tict' ill Ontario, by writ of that Court, dated tho day of 
 
 A.U., IH ; wliich writ is indorHcd as follows (ic/)!/ in /nil the iudin-nc- 
 mc/ifn i, and you are requiri'il within I | days after tin; receipt of 
 
 this notice, iiicliiHive of tho day of such receipt, to defend the said action, 
 liv caiiHiii^ an appearance to bo entered for you in tiie said Court to the 
 said action, and your defence tlieroto, if any, to be delivered; and in 
 ilefaiilt of your so doiii),', the said A. U , may proceed therein, and judg- 
 ment may be ^iven in your absence. 
 
 You may appear to the said writ by entering,' an nppearance personally, 
 or by your solicitor at the [ J oMce at 
 
 Dated, etc. 
 
 (SiK'ned) A. U„ of 
 
 etc. 
 
 Y.Y .of 
 
 or 
 
 Solicitor for A. £. 
 N.H. This notice is to be used when the person to be served is not a 
 British subject, and is not in Britisii dominions. 
 
 Imlorifinent to he nuuU' on the notice of the irrit after nervice thereof : 
 
 This notice was served by X. Y., on (I. H., (the defendant or one of 
 the defendants) on the day of 18 
 
 Indorsed the day of 18 . 
 
 (Signed) 
 (.\ddros8) 
 
 PAET 11. 
 
 ont of Ontario. 
 
 Indorsements on Whits of Sum.mos.s. 
 
 SECTION I. 
 No. 4. 
 
 Moneij Cldinin where no special Indorsement nniler Itnle 212. 
 The plaintiff's claim is $ fov the price of goods sold. 
 
 Goods sold. 
 
 Thin Form shall aujhci irliether the claim lie in rexpect (f (loods sold ami 
 delivered, or if nooth harpained and sold. 
 
 The plaintiff's claim is f for money lent [and interest] . Money lent 
 
 The plaintiff's claim is $ whereof $ is for the price of Several de- 
 
 fjoods sold, and » for money lent, and » for interest. niauds. 
 
 The plaintiff's claim is $ for arrears of rent. Rent. 
 
 The plaintiff's claim is $ for arrears of salary as a clerk [or an Salary, etc 
 
 the aise limy he] . 
 
 The plaintiff's claim is $ for interest upon money lent. Interest. 
 
 The plaintiff's claim is $ for a general average contribution. General 
 
 average. 
 
 The plaintiff's claim is $ for freight and demurrage. Freight, 
 
 etc. 
 
i\ 
 
 958 
 
 Tolls. 
 Penalties. 
 
 banker's 
 balance. 
 
 Fees, etc., 
 as solici- 
 tors. 
 
 Commis- 
 sion. 
 
 Tiio plainitff's claim is $ 
 Tlie plaintiff's claim is $ 
 The plaintiff's claim is $ 
 
 Victoria, chap. [ . . 
 'J'he plaintiff's claim is $ 
 
 as a banker. 
 
 The plaintiff's claim is $ 
 money expended] as a solicitor. 
 
 The plaintiff's claim is $ 
 aurtidiu'vr, hroki'i; etc.] 
 Medical at- ,^,j piiii^tiff's claim is | 
 tendance, '^i • xm i • a 
 
 Keturn of The plaintiff s claim is » 
 
 premium, policies of insurance. 
 Warehouse The plaintiff's claim is f 
 
 rent. 
 Carriage of 
 goods. 
 
 Use and oc- 
 cupation of 
 house. 
 
 Hire of 
 goods. 
 Work done. 
 Board and 
 lodging. 
 
 Schooling. 
 
 The plaintiff's cLam is ? 
 
 The plaintiff's claim is ft 
 
 The plaintiff's claim is ft 
 The plaintiff's claim is ft 
 The plaintiff's claim is ft 
 
 The plaintiff's claim is ft 
 X. Y. 
 Money re- The plaintiff's claim is ft 
 
 APPENDIX. 
 
 for lighterage. 
 
 for market tolls and stallage, 
 for penalties under iiie Statute 
 1 
 
 for money deposited with the defendant 
 
 for fees for work done [and ft 
 
 for commission as [atate churacter a» 
 
 lor medical attendance. 
 
 for a return of premiums paid upon 
 
 for the warehousing of goods. 
 
 for the carriage of goods by railway. 
 
 for the use and occupation of a house. 
 
 for the hire of [furniture^ . 
 for work done as surveyor, 
 for board and lodging. 
 
 for the board, lodging and tuition of 
 
 for money received by the defendant 
 as solicitor [or factor, or collector, or etc.] of the plaintiff. 
 
 The plaintiff's claim is ft foi.' fees received by the defendant 
 
 under colour of the office of 
 
 Moneyover Tlie plaintiff's claim is ft for the return of money overcharged 
 
 paid. Jqj. ^jjg carriage of goods by railway. 
 
 Return of '^^'^ plaintiff's claim is ft for a return of fees overcharged by the 
 
 money by defendant as 
 
 stake- The plaintiff's claim is ft for a return of money deposited with 
 
 the defendant as stakeholder. 
 
 ceived. 
 
 Fees of 
 office. 
 
 holder. 
 
 froufstake- The plaintiff's claim is ft for money entrusted to the defendant 
 
 holder. as stakeholder, and become payable to plaintiff. 
 
 The plaintiff's claim is ft for a return of money entrusted to the 
 
 defendant as agent to the plaintiff. 
 
 Money en- 
 trusted to 
 agent. 
 
 Money ob- 
 tained by 
 fraud. 
 
 The plaintiff's claim is ft 
 the plaintiff by fraud. 
 
 for a return of money obtained from 
 for a return of money paid to the 
 
 Money paid The plaintiff's claim is ft 
 bymistakti. defendant by mistake. 
 
 Money paid The plaintiff's claim is ft for a return of money paid to the defen 
 
 eration" f'^'"* ^'^^ [work to he done, left undone; or a bill to be taken up, not takenup, 
 which has etc.] 
 
 laiiou. rpjjg plaintiff's claim is $ 
 
 upon shares to be allotted. 
 Money paid 
 
 by surety The plaintiff's claim is $ 
 fordefeu- surety. 
 
 The plaintiff's claim is ft 
 defendant. 
 
 dant 
 Kent paid 
 
 for a return of money paid as a deposit 
 for money paid for the defendant as his 
 for money paid for rent due by the 
 
 m 
 
FORMS — INDORSEMENTS. 
 
 959 
 
 as [nUite clmractcr as 
 
 The iilaintiff' 8 claim is $ upon a bill of exchange accepted [or 
 
 indorsedj for the defendant's accommodation. 
 
 Tlie plaintiff's claim is $ 
 paid by the plaintiff as surety 
 
 The plaintiff's claim is 9 for a contribution in respect of a joint 
 
 debt of the plaintiff and the defendant, paid by the plaintiff. 
 
 The plaintiff's claim is $ for money paid for calls upon shai'es, 
 
 against which the defendant was bound to indemnify the plaintiff. 
 
 The plaintiff's claim is $ 
 
 The i)laintiff's claim is $ 
 life of X. Y., deceased. 
 
 The plaintiff's claim is $ 
 Jl.OOO and interest 
 
 The (ilainliff's claim is % 
 ill the Province of Quebec. 
 
 The plaintiff's claim is $ 
 
 The plaintiff's claim is '8 
 
 Jloiioyiiaid 
 oil aceom- 
 iiiodatiuu 
 
 for a contribution in respect of money contribu- 
 tion by 
 surety. 
 
 Hy co- 
 debtor. 
 Money paid 
 for calls 
 Moueypay- 
 ahlo under 
 award. 
 upon a po)icy of insurance upon the ijjfe policy. 
 
 a bond to secure payment of : 
 
 fo' money payable under an award. 
 
 upon 
 
 ' Money 
 bond. 
 
 upon a judgment of the 
 
 Court, Foreign 
 
 judgment. 
 
 drawn or indorsed! by the defendant 
 
 upon a cheque drawn by the defendant, 
 upon a bill of exchange accepted [or 
 
 Hill of ox- 
 cliange.etc. 
 
 Tlie plaintiff's claim i', ^ 
 indorsed I by the defendant, 
 
 The plaintiff s claim is ft 
 mid against the defendant 
 exchange. 
 
 Tlie plaintiff's claim is ft 
 price of yoods sold. 
 
 The plaintiff's claim is ft 
 mid against the defendant C 
 
 ni:on a promissory note made [or 
 
 against the defendant A. B. as acceptor, 
 C. D. as drawer [or indorserj, of a bill of 
 
 against the defendant as surety for the Surety. 
 
 against the defendant A. B. as prinripal, 
 D. as surety for the price of goods sold [or 
 iirrears of rent, or for money lent, or for money I'eceived by the defendant 
 A. U.. as traveller for the plaintiffs, <r, ftc] 
 
 The plaintiff's claim is ft against the defendant as a del credere 
 
 agent for the price of goods sold [or as losses under a policy] . 
 The plaintiff's claim is ft for calls upon shares. 
 
 Del credere. 
 a(;uut. 
 
 No. 5. 
 
 SECTION II. 
 Indorsement for Cost^,etc. 
 
 [Add to the above forms] and ft for costs ; and if the amount 
 
 claimed bo paid to the plaintiff or his solicitor within 8 days [or if the writ 
 ill to he served out of Ontario, or notice in lieu of service allowed, insert the 
 time limited for appearance and defence] from the service hereof, further 
 procealings will be stayed. 
 
 SECTION III. 
 
 money paid as a deposit 
 I for the defendant as his 
 id for rent due by the 
 
 No. ft. 
 
 Indorsements on writs for Damages and other Claim*. 
 
 Tlie plaintiff's claim is for damages for breach of a contract to employ Agent, tc. 
 the plaintiff as traveller. 
 
 The plaintiff's claim is for damages for wrongful dismissal from the 
 defendant's employment as traveller [and ft for arrears of w ages] . 
 
 M ^ 
 

 960 
 
 APPENDIX. 
 
 Arbitra- 
 tion. 
 Assault, 
 etc. 
 
 By hus- 
 band arid 
 wife. 
 
 Solicitor. 
 
 Bailment. 
 
 Pledge. 
 
 Hire. 
 
 Banker. 
 
 BUI. 
 
 Bond. 
 
 Carrier. 
 
 Charter 
 party. 
 Damages 
 for depriv- 
 ing of 
 goods. 
 
 Defama- 
 tion. 
 Distress. 
 Ueplevin. 
 
 Wrongful 
 distress. 
 
 Fishery. 
 Fraud. 
 
 Guarantee, 
 
 The plaintiff's claim is for damages for the defendant's wrongfully 
 quitting the plaintiff's employment as manager. 
 
 Tlie plaintiff's claim is for damages for breach of duty as factor [or, etc.] 
 of the plaintiff Tand | for money received as factor, etc.; 
 
 The plaintiff's claim is for damages for breach of the terms of a deed of 
 apprenticeship of X. Y. to the defendant [or plaintiff J. 
 
 The plaintiff's claim is for damages for non-compliance with the 
 award of X. Y. 
 
 The plaintiff's claim is for damages for assault [and false imprison- 
 ment, and for malicious prosecution |. 
 
 The plaintiff's claim is for damages for assault and false imprisonment 
 of the plaintiff C. 1). 
 
 The plaintiff's claim is for damages for assault by the defendant C. D. 
 
 The plaintiff's claim is for damages for injury by the defendant's negli- 
 gence as solicitor of the plaintiff. 
 
 The plaintiff's claim is for damages for negligence in the custody of 
 goods [and for wrongfully detaining the same] . 
 
 The plaintiff's claim is for damages for negligence in the keeping of 
 goods pawnedj and for wrongfully detaining the same] . 
 
 The plaintiff's claim is for damages for negligence in the custody of 
 furniture let on hire [or a carriage lent] , [and for wrongfully, etc. ] 
 
 The plaintiff's claim is for damages for wrongfully neglecting [or 
 refusing] to pay the plaintiff's cheque. 
 
 Tiie plaintiff's clium is for damages for breach of a contract to accept 
 the plaintiff's drafts. 
 
 The plaintiff's claim is upon a bond conditioned not to carry on the 
 trade of a 
 
 The plaintiff's claim is for damages for refusing to carry the plaintiff's 
 goods by railway. 
 
 The plaintiff's claim is for damages for refusing to carry the plaintiff 
 by railway. 
 
 The plaintiff's claim is for damages for bi'each of duty in and about the 
 carriage and delivery of coals by railway. 
 
 The plaintiff's claim is for damages for breach of duty in and about the 
 carriage and delivery of machinery by sea. 
 
 The plaintiff's claim is for damages for breach of charter-party of ship 
 
 The plaintiff's claim is for wrongfully depriving plaintiff of goods, 
 household furniture, etc. 
 
 The plaintiff's claim is for damages for libel. 
 
 The plaintiff's claim is for damages for slander. 
 
 The plaintiff's claim is in replevin for goods wrongfully distraineil. 
 
 The plaintiff's claim is for damages for improperly distraining. 
 
 [Til IK form nliiiU In- xit(}icient whether the ili.itreK.i eompliiiiied nf he wroiiiijid 
 or e.reesnire, or irreijiiUir, anil whether the elaim he for ilamutje^ oh/'/. 
 or for iloiilile rnliie] . 
 
 The plaintiff's claim is for damages for infringement of the plaintiff's 
 right of tishing. 
 
 The plaintiff's clai'u is for damages for fraudulent misrepresentation on 
 tlie sale of a iiorse [or a business, or shares, or etc.] 
 
 The ))laintiff's claim is for damages for fraudulent misrepresentation uf 
 the credit of .\. IJ. 
 
 Tile plaintiff's claim is for damages for breach of a contract of guarantee 
 for X. ]i. 
 
 The plaintiff's claim is for damages for breach of a contract to indem- 
 nify the plaintiff' as the defendant's agent to distrain. 
 
FORMS — INDORSEMENTS. 
 
 961 
 
 fondant's wrongfully 
 
 mce in the custody of 
 
 The plaintiff's claim is for a loss under a policy upon the ship " Royal Insurance. 
 Charter," and freight or cargo [or for return of premiumfi] . 
 
 [Thin form kImU he sufficient whether the Iohh claimed be total or partial]. 
 
 The plaiutifT's claim is for a loss under a policy of fire insurance upon Fire in- 
 house and furniture. Burance. 
 
 The ijlaintiff's claim is for damages for breach of a contract to insure a Landlord 
 house. and tenant. 
 
 The plaintiff's claim is for damages for breach of a contract to keep a 
 house in repair. 
 
 The plaintiff s claim is for damages for breaches of covenanta contained 
 in the lease of a farm. 
 
 The plaintiff's claim is for damages for injury to the plaintiff from the Medical 
 defendant's negligence as a medical man. man.. 
 
 The plaintiff's claim is for damages for injury by the defendant's dog. Mischiev- - 
 
 oua animal. 
 
 The plaintiff's claim is for damages for injury to the plaintiff [or, (/ by Negligence. 
 IrmlMiiU (ind wife, to the plaintiff C. D.J by the negligent driving of the 
 defendant or his servants. 
 
 The plaintiff's claim is for damages for injury to the plaintiff while a 
 passenger on the defendant's railway by the negligence of the defendant's 
 servants. 
 
 The plaintiff's claim is for damages for injury to the plaintiff at t.lie 
 defendant's railway station, from the defective condition of the station. 
 
 The plaintiff's claim is as executor of A. B. deceased, for damages for LordCamp- 
 the death of said A. B., from injuries received while a passenger on tho bell's Act. 
 defendants railway, by the negligence of the defendant's servants. 
 
 The plaintiff.s claim is for damages for breach of promise of marriage. PromlBe of 
 
 marriage 
 
 The plaintiff's claim is for damages for the seduction of the plaintiff's Seduction, 
 daughter. 
 
 The plaintiff's claim is for damages for breach of contract to accept and Sale of 
 pay for goods. goods. 
 
 The plaintiff's claim is for damages for non-delivery [or short delivery, 
 iir defective quality, or other breach of contract of sale] , of cotton [or, etc.] 
 
 The plaintiff's claim is for damages for breach of warranty of a horse. 
 
 The plaintiff's claim is for damages for breach of a contract to sell for Sale of 
 purchase land. land. 
 
 The planitiff's claim is for damages for breach of contract to let [or 
 takej a house. 
 
 The plaintiff's claim is for damages for breach of a contract to sell [or 
 purchasej the lease, with goodwilF, fixtures, and stock-in-trade of a public- 
 house, 
 
 The plaintiff's claim is for damages for breach of covenant for title [or 
 for quiet enjoyment, or etc.] in a conveyance of land. 
 
 The plaintiff's claim is for dannvges for wrongfully entering the plain- Trespass 
 tiff's land and drawing water from his well [or cutting his grass, or pull- ^° land. 
 ing down his timber, or pulling down his fences, or removing his gate, or 
 using his road or path, or crossing his field, or depositing sand there, or 
 carrying away gravel from thence, or carrying away stones from his 
 river . 
 
 The plaintiff's claim is for damages for wrongfully taking away the Support, 
 support of plaintiff's land [or hoitne or mine] . 
 
 The plaintiff's claim is for danuiges for wrongfully obstructing a way Way. 
 [public highway or private way j . 
 
 The plaintiff's claim is for damages for wrongfully diverting [or Water- 
 obstructing, or polluting, or diverting water from] a watercourse. course, etc. 
 
 The plaintiff's claim is for danuiges for wrongfully discharging water 
 upon the plaintiff's land |or into the plaintiff's mine]. 
 
 J. A. 61 
 
962 
 
 Pasture. 
 
 LiKht. 
 
 Patent. 
 
 Copyright. 
 
 Trade 
 mark. 
 
 Work. 
 ■Nuisance. 
 
 Innkeeiier. 
 
 Claim for 
 return of 
 goods ■ 
 damages. 
 
 Ejectment. 
 
 To estab- 
 lish title 
 and re- 
 cover rents 
 
 Dower. 
 
 Mandamus. 
 
 Injunction 
 
 Mesne pro 
 fits. 
 Arrears of 
 
 rent. 
 
 Breach of 
 covenant. 
 
 APPENDIX. 
 
 The plaintiff's claim is for damages for wrongfully obstructing the 
 plaintiff's use of a well. 
 
 The plaintiff's claim is for damages for the infringement of the plain- 
 tiff's right of pasture. 
 
 [Thisfoi'm hIuiU be sufficient whatever the mtture of the rifiht to 
 punture be] . 
 
 The plaintiff's claim is for damages for obstructing the access of liuht 
 to plaintiff's house. 
 
 The plaintiff's claim is for damages for the infringement of the plain- 
 tiff's patent. 
 
 The plaintiff's claim is for damages for the infringement of the plain- 
 tiff's copyright. 
 
 The plaintiff's claim is for damages for wrongfully using [or imitating 
 the plaintiff's trade mark. 
 
 The plaintiff's claim is for damages for breach of a contract to build a 
 ship [or to repair a house, etc.] 
 
 The plaintiff's claim is for damages for breach of a contract to employ 
 the plaintiff to build a ship. etc. 
 
 The plaintiff's claim is for damages to his house, trees, crops, etc., 
 caused by noxious vapours from the defendent's factory [or, etc.] 
 
 The plaintiff's claim is for damages from nuisance by noise from tl;e 
 defendant's woi'ks [or, etc.\ 
 
 The plaintiff's claim is for damages for loss of the plaintiff's goods in 
 the defendant's inn. 
 
 The plaintiff's claim is for return of household furniture, or, etc., or 
 their value, and for damages for detaining the same. 
 
 The plaintiff's claim is to recover possession of a house. No. in 
 street, in the City of Ottawa ; or of the N. E J of lot 2, in the 3rd conces- 
 sion of the Township of in the County of 
 
 The plaintiff's claim is to establish his title to [here describe property], 
 and to recover the rents thereof. 
 
 [Hie tiro previous lorim may be combined]. 
 
 The plaintiff's claim is for dower out of lot number (nr 
 
 describing tlie property otherwise with reasonable certainty). And take 
 notice that the plaintiff claims damages for the detention of her dower 
 from the day of 
 
 Add to indorsement if a mandamus is claimed. 
 
 A.nd for a mandamus commanding *he defendant to 
 
 Add to indorsement if an injunction is claimed. 
 
 And for an injunction to restrain tlte defendant from 
 
 Add to Indorsement where Claim is to land, or to establish title, ur both: 
 And for mesne profits. 
 
 And for an account of rents or arrears of rent. 
 
 And for breach of covenant for [re2)airs] . 
 
FORMS — SPECIAL INDORSEMENTS 
 
 963 
 
 ,he plaintiff's goods in 
 
 eHtablMititlf, or both: 
 
 SECTION IV. 
 No. 7. 
 
 Money Clnima— Special Indorsements under Rule 243. 
 
 1. The plaintiff s claim is for the price of goods sold. The following 
 are tlie particulars :— 
 187',l— 31st December.— 
 
 Balance of account for butcher's meat to this date , . . $142 
 18.S0— Ist January to aist Mai-ch.— 
 
 Butcher's meat supplied ,..,.... 297 
 
 S43'.> 
 1H80- 1st February.— Paid 180 
 
 ■ Balance due $25'.) 
 
 2 The plaintiff's claim is against the defendant A. B. as principal, and 
 afiaiiist tlie defendant C. D. as surety, for the price of goods sold to A. B. 
 The following are the particulars : — 
 
 iGoi — 2nd February. Guarantee by C. D. of the price of woollen 
 goorls to be supplied to A. B, 
 
 2nd February — To goods $22r) 
 
 3rd March— To goods 151 
 
 17tli IMarch— To goods ........ 27 
 
 5th April— To goods 05 
 
 $4G8 
 
 .S. The plamtiff's claim is against the defendant, as maker of a promis- 
 sory note. The following are the particulars : — 
 
 Promissory note for $1,000 dated 1st January, 1879, made by defen- 
 dant, payable four months after date. 
 
 Principal $1,000 
 
 Interest .......... 
 
 4. The plaintiff's claim is against the defendant A. B. as acceptor, and 
 aijainst the defendant C. D. as drawer, of a bill of exchange. Thefollow- 
 inj,' are the particulars : — 
 
 Bill of exchange for $2,000, dated 1st January, 1880, drawn by defen- 
 dant C. D. upon and accepted by defendant A. B., payable three months 
 after date. 
 
 Principal. $2,000 
 
 Interest ,.....,... 
 
 5. The plaintiff's claim is for principal and interest due upon a bond. 
 The following are the particulars : — 
 
 Bond dated Ist January, 1879. Condition for payment of $500 on the 
 26th December, 1879. 
 
 Principal due $500 
 
 Interest ........... 
 
 6. The plaintiff's claim is for principal and interest due under a 
 covenant. The following are the particulars : — 
 
 Deed dated covenant to pay i$3,00& and interest. 
 
 Principal due $800 
 
 Interest 
 

 964 
 
 APPENDIX. 
 
 % 
 
 \ 
 
 ^ 
 
 
 <-. 
 
 No. «. 
 
 SECTION V. 
 
 hi'lumcmcntii of Cluinicter of I'artien. 
 
 Executor. 
 
 Against 
 executrix. 
 
 Assignee in 
 insolvency. 
 
 Trustees. 
 
 Heir and 
 devisee. 
 
 Qui tarn 
 action. 
 
 The plaintiff's claim is as executor [or administrator' of C, D., deceased. 
 for, etc. 
 
 The plaintiff' sclaim is against the defendant A. B., as executor or, etc] 
 of C. D., deceased, for, etc. 
 
 The plaintiff's claim is against the defendant A. B., as executor for 
 X. Y., deceased, and against the defendant C D., in his personal ciipacity, 
 for, etc. 
 
 The claim of the plaintiff is against the defendant as executrix of C. D., 
 deceased, for 
 
 The plaintiff's claim is as assignee in insolvency of A. B , for 
 
 The plaintiff's claim is against the defendant as assignee in insolvency 
 of A. B , for 
 
 The plaintiff's claim is as \or the plaintiff's claim is against tlie defen- 
 dant as) trustee under tlie will of A. B. [or under the settlement upon the 
 marriage of A. B. and X. Y., his wife J. 
 
 The plaintiff's claim is against the defendant as heir-at-law of A. B. 
 deceased. 
 
 The plaintiff's claim is against the defendant C. D., as heir-at-law, and 
 against the defendant E. F., as devisee of the lands under the will of A. B. 
 
 The plaintiff's claim is as well for the Queen as for himself, for 
 
 HECTION VI. 
 
 No. ». 
 
 Iiulomeineiits in Matters which formerlij heloiujed to the eccliisire juriKiUction 
 
 of Equity, 
 
 (a) Cri'fUfor to administer EMatc. 
 
 The plaintiff's claim is as a creditor of X. Y., of 
 deceased, to have the [real and) personal estate of the said X. Y. lulinin- 
 istered. The defendant C. D. is sued as the administrator of tlie said 
 X. Y. .and the defendants E. F. and (r. H. as his co-heirs-at-lawj. 
 
 (6) 
 
 Legatee to administer Estate. 
 
 The plaintiff's claim is as a legatee under the will dated the day 
 
 of IH , of X. Y., deceased, to have the real luidj 
 
 personal estate of the said X. Y. administered. The defendant CD. is 
 sued as the e.\ecutor of the said X. Y. [and tlie dufemlants J'.. 1'. and (r. H. 
 as his devisees] 
 
 {'•, 
 
 Partnership account. 
 
 The plaiutitt''s claim is to have an accoiuit taken of the partnership 
 dealings hetween the plaintiff/and defendant [under articles of [Kirtner- 
 siiip dated tlie • ' day of J , and to Imve the 
 
 affairs of the partnership wound up. 
 
rORMS INDORSEMENTS. 
 
 965 
 
 )r' of C. D., ileeeased, 
 
 , as executor or, etc.) 
 
 . B., as executor for 
 Ills iiersonal capacity^ 
 
 ; as executrix of CD., 
 
 3f A.B,for 
 
 assignee in insolvency 
 
 1 is against tiie defen- 
 le settlement upon the 
 
 3 heir-at-law of A. B. 
 
 U., as heir-at-law, and 
 under the will of A. B. 
 for himself, for 
 
 lie erchixive .iiiri!<ilicim 
 
 ,{ the said X. Y. admin- 
 niiiistratov of the said 
 •o-heirs-at-lawj. 
 
 ill dated the 'W' 
 
 to have the rt.il andj 
 
 The defendant C U. is 
 
 endantsE.r.and(..H. 
 
 -.ikeii of the pavtmTship 
 
 ler articles of P'lvtner- 
 
 ; , and to have tlie 
 
 {(!] Ilij Mortgaijec for sale and far imnieilinte pai/mciit and posaeKnion. 
 
 The plaintiff's claim is on a mortgage dated the day 
 
 of nuide between [or by deposit of title 
 
 deeds], and that the mortgage may be enforced by sale, and payment to 
 the plaintiff by the defendant personally of any balance. (//' order for 
 iiiimididtc pai/inent Ik irnnted add). And take notice further that the ])lain- 
 tiff claims to be entitled forthwith to execution against the goods and 
 lands of you Uutminii the deffiidaiit (ujtunut whom thin order /n claimed) to 
 recover payment of the amount due by you. 
 
 [If order is wanted for immediate possession add),k.nA take notice further, 
 that the plaintiff claims to be entitled to an order for the immediate 
 delivery of the mortgaged premises to him. 
 
 ((•) Hij Mortgagee for foreclosure and for immediate payment awl possession. 
 
 The plaintiff's claim is on a mortgage dated the day 
 
 of made between {or by deposit of title deeds), and 
 
 that the mortgage nniy be enforced by foreclosure. 
 
 {If order for immediate pai/ment is wanted add), And take notice further 
 that the plaintiff claims to be entitled forthwith to e.xecution against the 
 goods and lands of you [naminii the defendant against ichom this order is 
 claimed) to recover payment of the amount due by you. 
 
 {If order for immediate possession is wanted add), And take notice further 
 that the plaintiff claims to be entitled to the immediate possession of the 
 mortgaged premises. 
 
 {At the end of the indorsement add). If you desire a sale of the mortgaged 
 premises instead of a foreclosure, and do not intend to defend the action, 
 you must within the time allowed for appearance, file in the office within 
 named, a notice in writing, signed by yourself or your solicitor, to the 
 following effect: — "I desire a sale of the mortgaged premises in the 
 plaintiff's writ of summons mentioned, or a competent part thereof, 
 instead of a foreclosure," and you must deposit the sum of $80 to meet 
 the expenses of such sale. 
 
 if) 
 
 By Mortgagor for Redemption. 
 
 The plaintiff's claim is to have an account taken of what, if anything, 
 19 due on a mortgage dated and made between 
 
 [parties' , and to redeem the property comprised therein. 
 
 ill 
 
 liaising portions. 
 
 The plaintiff's claim is that the sum of $ , which by an 
 
 indenture of settlement dated , was provided for the portions 
 
 of the younger children of may be raised. 
 
 I'll Execution of Trusts. 
 
 The plaintiff's claim is to have the trusts of an indenture dated 
 and made between , carried into execution. 
 
 (') Cancellation or Rectification, 
 
 The plaintiff's claim is to have a deed dated 
 [parties] , set aside or rectified. 
 
 and made between 
 
966 
 
 APPENDIX. 
 
 fipecijic Ptrformance. 
 
 U) 
 
 The plaintiff's claim is for specific performance of an agreement dated 
 the day of . for the sale by the plaintiff to the defeu.lant 
 
 of certain [freeluyld] hereditaments at 
 
 {*) 
 
 Alimony. 
 
 The plaintiffs claim is for alimony ; and the plaintiff demandsas interim 
 alimony until the trial of the action the monthly {or weekly) sum of S 
 to be paid to her on the day of each month ( or week) at mul the 
 
 interim costs to which she is entitled by the practice in that behalf. 
 
 Note. — Where the plaintiff desireii to refr inter a certificate of lis pendens 
 the indorsement on the vrit of summonn vuu/ contain such nhort dexvriptiou of 
 the property ag may he necennary or proper for that purpose. 
 
 PART III. 
 
 No. lO. 
 
 NOTICES, ETC. 
 Notice of Motion to Court. 
 
 In the High Court of Justice. 
 
 Division. 
 
 Between 
 
 Plaintiff. 
 
 and 
 
 Defendant. 
 Take notice, that the Court will be moved on behalf of on 
 
 day the day of 18 . at o'clock in tlie forenoon, 
 
 or so soon thereafter as counsel can be heard, that (ntule the nhjn-t of the 
 intended (ipplication). 
 Dated the day of 18 . 
 
 (Signed) 
 Solicitor for the 
 To 
 
 For time. 
 
 No. 11. 
 
 Notice of Motion in CliumberK. 
 
 [Title, etc.] 
 
 Take notice, that a motion will be made on behalf of 
 before the Master in Chambers (or an the cane laay lie), at Osgoode Hall. 
 in the City of Toronto, on day the day of 
 
 18 ,at o'clock in the noon, or so soon tliereafteraf 
 
 the motion can be heard, for an order for time to, etc. 
 
 For final or, that be at liberty to sign final judgment in this action for the 
 
 imd'er^RuIe *™o'i^*' indorsed on the writ with interest, if any, and costii ; 
 
 739. 
 
FOIIMS — NOTICES. 
 
 967 
 
 Deft'iidiuit. 
 
 oehalf of ("> 
 
 o'clock ill the forenoon, 
 at (.tUite the ohja-t oj the 
 
 or, tlmt the plaintiff be at liberty to amend the writ of summons in this To amenU 
 action by ^"t- 
 
 or, that the do f urniHh the said with a For par- 
 
 statemcnt in writing, verified by affidavit, setting' forth the names of the ticulars 
 persons coiiKtitutiiif,' the members or co-partners of their firm, pursuant s\'i'ip)!^^'^' 
 to the Uulesof the Supreme Court, Rule 817. 
 
 or, for an account in writin<{ of the particulars of the plaintiff's claim in For par- 
 tliis action (with dates and items, or iin the cii.ii' ma;/ he), and tliat unless ticiUars 
 such particulars be delivered in four di'ys, all further proceedings be "^ * ^'' 
 6taye(l mitil the delivery thereof ; 
 
 or, for an account in writiiifj of the particulars of the injuries and For par- 
 expenses mentioned in the Statement of Claim, tot,'ether with the time *"^'J?'J'^^ 
 and place of the accident, and the particular acts of nej^ligence complained 
 of, and that unless such particulars bo delivered within days all 
 
 further proceedings be stayed until the delivery tliereof ; 
 
 or, that tlic order of in this action, dated the day, of To dis- 
 
 , IH , be (discharj^ed, or varied by, etc.), on the grounds Oiarge or 
 disclosed in the afhdavit of , filed in support of ^"''^ °' ^'^' 
 
 this application ; 
 
 or, that this action be dismissed with costs to be taxed and paid to the To dismiss 
 Defendant by the Plaintiff for want of prosecution, the Plaintiff not action, 
 having, etc ; 
 
 or, that the answer within days, stating what ^"i" discov- 
 
 docunients are or have been in possession or power relating to fjients " 
 
 the matters in question in this action ; 
 
 or, that the 
 
 or extracts from 
 
 proceedings be stayed ; 
 
 be at liberty to inspect, and take copies of, To inspect 
 , and that in the meantime all further documents. 
 
 or, that 
 fortliwith before 
 
 a witness on behalf of the 
 
 upon the usual terms ; 
 
 be e.xamined To examine 
 witness be- 
 fore trial. 
 
 or, that the be at liberty to issue a commission for the exam- ^o^ Coui- 
 
 iuation of witnesses on behalf at , and that e"ami'nG''° 
 
 the trial of this action be stayed until the return of such commission upon witnesses, 
 the usual terms ; 
 
 or, that the following question arising in this action, namely : — 
 
 be referred for iiujuiry and report to 
 under section 101 of the Judicature Act ; 
 
 or, tliat the in this action be tried by 
 
 section 102 of the Judicature Act : 
 
 or, that the above-named judgment debtor be orally exainined as to 
 whether any and what debts are owing to him, and do attend for that 
 purpose before the Master in Chambers {or ait the lutue nuuj he) at sucli time 
 and place as he may appoint, and that the said judgment debtor produce 
 his books, etc., before the said Master at the time of the examination ; 
 
 or, that this action be tried before the County Court of 
 
 holden on 
 
 To refer 
 under sec- 
 tion 101 of 
 tlie Act. 
 To refer 
 under under sec- 
 tion 102 of 
 tlie Act. 
 
 For e.xam- 
 i nation of 
 jtidginent 
 debtor as 
 to means 
 
 For trial of 
 action in 
 c;ounty 
 Court. 
 
 ^ 
 
4f. 
 
 mwn 
 
 «68 
 
 For inter 
 pleader 
 order (by 
 slioriff). 
 
 APPENDIX. 
 
 or, that tlie plaintiff and claimant appear and state tlie nature of tlieir 
 respective claims to the ^oods and chattels seized by the ahnvenaii'.eil 
 sheriff under the writ ot fieri fdciiiH issued in this action and iiiiuiitiiiii or 
 relinquish the same and abidri by such order as may be made horein, uinl 
 that in the meantime all further proceedint^s be stayed. 
 
 % 
 
 No. IS. 
 
 Notice of application for Adminigtration Order or re^peetintj the nuardiiimhip 
 
 of ail infant. 
 
 
 In the High Court of Justice, 
 
 Division. 
 
 Between A. B., plaintiff, 
 
 and 
 
 C. D., defendant. 
 
 Take notice that an application will be made to 
 , in Toronto, (or to 
 
 at his office in the city [or toini) of, etc.. (i* 
 the case viay be), on the day of at tiie hour of 
 
 o'clock in the iforenoon, (or if opposed, then to a Judfje in Chambers so 
 soon thereafter as a Judge fhall be sitting in Chambers, for an order for 
 the administration of the estate, real and personal, of by the 
 
 Court, or for any order appointing guardian of an 
 
 infant) ; and upon such application will be read the afWdavits of 
 this day filed. 
 
 Dated, etc., 
 
 X. Y., Solicitor for 
 To Mr. C. D. 
 
 No. 13. 
 
 Notice of Entry of Appearance. 
 
 In the High Court of Justice. 
 
 Division. 
 
 Between 
 
 and 
 
 Plaintiff, 
 Defendant. 
 
 Take notice that have this day entered an appearance at for 
 
 the defendant to the writ of summons in this action. 
 
 The said defendant require [or do not require) delivery of a statement 
 of claim. 
 
 Dated the day of 18 . 
 
 (Signed) 
 
 Solicitor for the defendant 
 To 
 
FORMS — N0TIUE8. 
 
 969 
 
 No. 14. 
 
 Xotiri- limit iuii drhliri'. 
 
 ipectiiui the (iiKinUnmhip 
 
 In tliu Hif,'li Court of Justice. 
 
 Division. 
 
 Between A. B., plaintiff. 
 
 and 
 
 C. D., and K. F., defendants. 
 
 The defendant, C. D., limits the defence to part only of the property 
 mentioned in the writ in this action, that is to say, to the north-west 
 (juai'ter of the lot. 
 
 Yours, etc , 
 
 G H., 
 Solicitor for the said defendant, CD. 
 To 
 
 No. 15. 
 
 Soticf iliKpiitiiiji (iinoiuit. 
 
 hi the High Court of Justice. 
 
 Division. 
 
 Between A. B., plaintiff, 
 
 and 
 
 C. D., defendant. 
 
 T:ike notice, that the defendant disputes the amount claimed by the 
 
 plaintiff {or the defendant insists that the amount due to the plaintiff" is 
 
 $ oidy ; or the <lcfendant insists that the amount due to the plaintiff 
 
 is S for principal and # for interest, since tlie day of 
 
 , etc., and no more, ax the nine mai/ he). 
 
 (Signed) 
 
 Solicitor for the defendant. 
 To 
 
 > 
 
 No. 16. 
 
 Notice in Lieu of Statement of Claim. 
 
 In the High Court of Justice. 
 
 Division. 
 
 Between A. B., plaintiff, 
 
 and 
 
 C. D., defendant. 
 
 The particulars of the plaintiff's claim herein, and of the relief and 
 remedy to which he claims to be entitled, appear by the indorsement 
 upon the writ of summons. 
 
 The plahitiff proposes that this action shall be tried at 
 Dated, etc. 
 
 X.Y., 
 
 Solicitor for Plaintiff. 
 
i-n 
 
 970 
 
 APPENDIX. 
 
 No. 17. 
 
 % 
 
 ^ 
 
 ^ 
 
 % 
 ^ 
 
 <k 
 
 % 
 
 ConfeHHion of Defence. 
 
 In tho Ilifjli CJourt of JuHtico. 
 
 Divinion. 
 
 Between A. B., plaintiff, 
 
 and 
 
 C. I)., (Icfcndimt. 
 
 Till- plaintiff (sonfeHHcs tiio dofcnco Htiited in tlio panif^nipli of the 
 
 dofondiint'H stiiteinont of dcfuncu [itr, of the defendant's furtiier Htatemi'iit 
 of defence] . 
 
 Dated, etc. 
 
 No. i«. 
 
 X.Y., 
 
 Solicitor for I'laintiff. 
 
 Notice III/ Def.'iidant to Third Party. 
 
 day of 
 
 Notice filed 
 In the High Court of Justico, 
 
 Division. 
 
 Jietwoen A 11., plaintiff, 
 and 
 C. I-)., defendant. 
 ToMr. X.Y. 
 
 Take notice that this action has been brought by the plaintiff against 
 the defendant (as surety for M. N j, upon a bond conditioned for payment 
 of ^10,000 and interest to the plaintilf. 
 
 The defendant claims to be entitled to contribution from you to the 
 extent of one-half of any sum which the plaintiff may recover afjainst him, 
 on tlie ground that you are (his co-surety under the said bond, o;-, also 
 surety for the said M. N., in respect of the said matter, under another 
 bond made by you in favour of the said plaintiff, dnti.l ( ' (i ivof 
 
 ,A.D. )J. 
 
 Or, [as acceptor of a bill of exchange f'>r 
 day of , A.D. , drawn 
 
 defendant and payable 'A months after c 
 
 The defendant claims to be indemniti 
 the said bill, on the ground that it was aci . , 
 
 Or [to recover damages for a breach of 
 delivery to the plaintiff of 1,000 tons of coal. 
 
 The defendant claims to be indemnified by you against liabilitv in 
 respect of the said contract, or any breach thereof, on the ground that it 
 was made by liim on your behalf and as your agontj . 
 
 And take notice that, if you wish to dispute the plaintiff's claim in this 
 action as against the defendant CD., you nmst cause an appearance t 
 be entered for you witliin 8 days after service of this notice. 
 
 In default of your so appearing, you will not be entitled in any future 
 proceeding between the defendant C D. and yourself to dispute the 
 validity of the judgment in this action whether obtained by consent or 
 otherwise. 
 
 lated the 
 .pou and acce 
 
 u\A by the 
 
 you at,'ainst liiu ay under 
 
 I for ^ ir accoinniodation, 
 
 , coi; .ict for the sale and 
 
 Dated, etc. 
 
 Appearance to be entered at 
 
 Or 
 X. Y., 
 
 (Signed) E. T. 
 
 Solicitor for the defendant, 
 E. T. 
 
FORMS — NOTICES. 
 
 No. 10. 
 
 Indornement on copy De/fiirc uml Connttr-elaim to be nerved on 
 Third Party. 
 
 "To the williin named X. Y. 
 
 Tiike notice tlmt if you (lf> not iippoivr to the witliin countor-clairn of 
 the witliiii iiiiniod ('. J)., witliin H duvH from the m-rviec of tliiw defenco 
 and eountiT-chiiin upon you, you will be liable to have judf,'nit'nt f'iveu 
 ngivi'ist you in your absence. 
 
 Ai<i)eai;anceH are to be entered at 
 
 1171 
 
 
 No. 20. 
 
 Indnnn'ini'nt on Order addiuii or clutnijiny partien under Itiile 625. 
 
 Take notice, that if you deBiro to discharge tins order you must apply 
 to the (Jourt for that purpose within It days after the service hereof upon 
 you. "he ori/,'inal statement of claim in this cause is hied in the oflice of 
 the at 
 
 {ami if tlie nerrire is after a judiiment dirertiiiii a reference to a Master or 
 other iiiju-ei\ add) and the reference under the judj^ment in tliis matter is 
 being prusecuted in the ofliue of the at 
 
 No a I. 
 
 Notice of payment into Court. 
 
 In the High Court of Justice. 
 
 Division. 
 
 Between A. li., plaintiff, 
 
 and 
 
 C. D., defendant. 
 
 Take notice that the defendant has paid into Court ^ in satis" 
 
 faction of tlie plaintiff's claim [or the plaintiff's claim, for, etc.] 
 Dated, etc. 
 
 ToMr. X. Y., 
 
 the Plaintiff's Solicitor. 
 
 Z.: 
 Defendant's Solicitor. 
 
 No. aa. 
 
 Ac'-eptnnce of eum paid into Court, 
 
 In the High Court of Justice. 
 
 Division. 
 
 Between A. B., plaintiff, 
 a!id 
 C. D., defendant. 
 
 Take notice that the plaintiff accepts the sum of $ paid by you 
 
 into Court in satisfaction of his claim lierein (or of his claim for, etc.) 
 Dated, etc. 
 
 X. Y., 
 
 Plaintiff's Solicitor. 
 To Z., 
 
 Defendant's Solicitor. 
 
972 
 
 No. 23. 
 
 APPENDIX. 
 
 Notice to produce Docume;. *s. 
 
 In the High Court of Justice 
 
 Division £• 
 
 Between A. B., plaintiff, ."^ 
 
 and 
 C. D., defendant. 
 
 Take notice that the [plaintiff or defendant] , requires you to producn 
 for liis inspection the fo!io-.ving documents referred to in your [statement 
 of chiim or defence, o) iifhdavit dated the day of 
 
 A.D. ]. 
 
 Dated, etc. 
 
 [_Describe documents required], 
 
 X. Y., 
 
 Solicitor for the 
 To Z., 
 Solicitor for 
 
 No. 24. 
 
 Notice to produces (Gcnei'il Form). 
 
 In the High Coui't oi Justice. 
 Division 
 
 Between 
 
 and 
 
 Plaintiflf, 
 
 Defendant. 
 
 Take notice that you are hereby required to produce and shew to the 
 Court on the trial of this action all books, papers, letters, copies of letters, 
 and other writings and documents in your custody, possession or power, 
 containii g any entry, memorandum, or minute relating to the matters in 
 question in this action, and particularly 
 
 Dated, etc. 
 
 To the above named 
 
 ) 
 
 Solicitor for the above named 
 
 h Solicitor or agent 
 
 No. 25. 
 
 Notice to In'.pecf Dociimeutn. 
 
 In the High Court of Justice. 
 
 Division. 
 
 A. B. V. C. D. 
 
 Take notice that you cp u inspect the documents mentioned in your 
 notice of the day of A.D. 'em'ptthf 
 
 deed numbered in that notice] at my office on day next 
 
 the instant, between the hours of 12 and 4 o'clock. 
 
FORMS — NOTICES. 
 
 973 
 
 ()/•, tlmt the [plaintiff or defendant] objects to giving you inspection of 
 the documents mentioned in your notice of tlie day of 
 
 \ I). on the ground that [utate the ground] : — 
 
 invtod, etc. 
 
 X.Y., 
 Solicitor for 
 
 No. 2-5J. 
 
 Notice to admit I/ocitiiientn. 
 
 In tlie Hi^li Court of Justice. 
 Division. 
 
 A. B. I . C. D. 
 
 Take notice thct the plaintiff [or defendant] in this cause proposes to 
 adduce in evidence the several documents hereunder specified, and that 
 tlie same may be inspected by the defendant [or plaintiff] his solicitor or 
 a^jent at , on , between the hours of ; and the 
 
 defendant \nr plaintiff] is hereby required, within 4 days from the said 
 day, to admit that such of the said documents as are specified to be 
 originals were respectively written, sif^ned, or executed, as they purport 
 respectively to have been ; that such as are specified as copies are true 
 copies, and such documents as are stated to have been served, sent, or 
 delivered, were so served, sent, or delivered respectively ; saving all 
 just exceptions to the admissibility of all such documents as evidence in 
 this cause. 
 
 X. Y., 
 Solicitor for 
 
 Dated, etc. 
 
 To E. F., solicitor '(»• agent for defendant or plaintiff], 
 Ci. II., solicitor [or a^^ent . for plaintiff [or defendant]. 
 
 e above named 
 
 Tients mentioned in your 
 'u_ [except w 
 
 y" office on day ne"' 
 
 I o'clock. 
 
 /'(')•« dcKcribi' the doettm(')tt>i. the inii:i)ier of doituj whieh min/ he on 
 
 fid lows :\ 
 
 0UI(4I.\ALS. 
 
 Description of Documents. 
 
 Dmjnf covenant *)etween A. B. and C. D. first part, aiidj 
 
 !■'. F. second part 
 
 Indeiitmv of li.iisc fioni A. B. to C. D 
 
 Iwhntnrc of ndi-asc Imtwct^ii A. B., C. U., first part, etc. . 
 
 lit'tt.T-dfffiidant to plaintiff 
 
 Policy of Insurance on jfoods hy ship " [salwdia," on 
 
 voyattc from Toronto to Kin^fston 
 
 •ncniuiiHKluiii of aL'reoniont lictwcen (^. D., captain of said 
 
 "hip, iiud K. F 
 
 Hilliif exeliani,'!' for '^:*\^) at W niontlis, drawn bv X. \\. on 
 
 and accepted hy 0. |)., indorsed by K. F. aiid (J. H. . . 
 
 Dates. 
 
 •fainiary 1, 1S7S. 
 Ffl)nia'ry 1, 187S. 
 F»d)niarv 2, 1M7,S 
 March l', 1S78. 
 
 July 3, 1877. 
 
 An 1,1878. 
 
 I'llst 
 
 May I, 1,S7<,». 
 
 Hi 
 
c 
 
 ^ 
 
 974 
 
 APPENDIX. 
 
 Copies. 
 
 Description of Documents 
 
 Original or duplicate 
 .served, sent, or 
 
 delivered, wiien, how 
 and by whom. 
 
 Registrar of l)a|)ti8m of A. B. in the 
 
 jjarisli of X I.Tanuary 1, 1848. 
 
 Letters — Plaintiff to defendant .... ; February 1, 1848. 
 
 Notice to i)r(xluce jjapors 
 
 Record of a Judgment of the Court 
 
 of Queen's Bench in an action, 
 
 J. S. and J. N. . Trinity Term, 10th 
 
 Vict, 
 
 Sent by General Post 
 February 2, 1848. 
 
 Served March 2, 1878, 
 on defendant's at- 
 torney by E. F., 
 of 
 
 No. 27. 
 
 Notice of Trial, 
 
 In the High Court of Justice. 
 
 Division. 
 
 A. B. V. C. D. 
 
 Take notice of trial of this action [or the issue in this action orleredto 
 be tried] at for the day of iie.xt. 
 
 X. Y., plaintiff's solicitor [or as the case may be]. 
 
 Dated, etc. 
 To Z., defendant's solicitor [or as the case may be] , 
 
 No. 28. 
 
 Notice of Entry of Demurrer for Argument . 
 
 In the High Court of Justice. 
 Division. 
 
 Between 
 
 and 
 
 Plaintiff. 
 
 Defendant, 
 
 Take notice, that have this day entered for argument the demurrer 
 of the to the in this action. 
 
 Dated the day of 18 . 
 
 (Signed) 
 
 S» 
 
 of 
 Solicitor for tha 
 
Original or duplicate 
 served, sent, or 
 
 delivered, when, how 
 and by whom. 
 
 48. ISent by General Post 
 848. February 2, 1848. 
 
 Served March 2, 1878, 
 on defendant's at- 
 torney by E. F., 
 of 
 
 je in tViis action orlered to 
 
 next. 
 or as the caw may he]. 
 
 Plaintiff. 
 
 Defendant. 
 for argument the demurrer 
 
 No. 2SK 
 
 FORMS — NOTICES. 
 
 Notice of Discontinuance, 
 
 In the High Court of Justice. 
 Division. 
 
 Between 
 
 and 
 
 Plaintiff. 
 Defendant. 
 
 Take notice, that the plaintiff h.ereby wholly discontinues this action, 
 (or withdraws so much of h cla im in this action as relates to, etc. 
 {If not tijiainst all the defend -nts add), " As against the defendant," etc. 
 
 Dated the 
 
 day of 
 
 IS . 
 (Signed) 
 
 of 
 Solicitor for the plaintiff. 
 
 No. 30. 
 
 Notice of Cross-examination of Deponents at Trial on Affidavits. 
 
 In the Higli Court of Justice. 
 Division. 
 
 Between 
 
 and 
 
 Plaintiff. 
 Defendant. 
 
 Talte notice, that the intend at the trial of this action to cross- 
 
 examine the several deponents named and described in the schedule hereto 
 on their affidavits therein specified. 
 
 And also take notice that, you are hereby required to produce the said 
 deponents for such cross-examination before the Court aforesaid. 
 
 Dated the 
 To 
 
 day of 18 
 
 Solicitor for the 
 
 The Schedule above referred to. 
 
 Name of DeiKinent. 
 
 Address and Description. 
 
 Date when affidavit filed. 
 
 975 
 
 ■i' 
 

 Ri 
 
 1; M|iV,%'-v 
 
 ^ 
 
 
 976 
 
 
 No. 31. 
 
 APPENDIX. 
 
 Notice of Renewal of Writ of Execution. 
 
 In the Hif,'h Court of Justice. 
 Division. 
 
 Between . Plaintiff. 
 
 and 
 
 Defendant. 
 
 Take notice, that the writ of ' issued in this action directed to the 
 
 sheriff of and bearing? date tlie day of 18 , has been 
 
 renewed for one year from the day of 18 . 
 
 Dated the day of 18 . 
 
 (Signed) 
 Solicitor for the 
 
 To the sheriff of 
 
 No. »2. 
 
 Notice of Election that Defendant conduct Sale. 
 
 In the High Court of Justice. 
 Division. 
 
 (Short Title.) 
 
 To 
 
 Defendant. 
 
 Take notice that the plaintiff elects that the sale of the mortgafjed 
 premises be conducted by you instead of by the plaintiff, and yon are at 
 liberty to witlidraw the deposit made by you in this cause for the imrpose 
 of such sale. 
 
 No. »3. 
 
 lndor'<enient of notice of time to more to diacliariie onlcr iiihliuii <i jKirtij. 
 
 Rule.i 4i. :i2!i. etc. 
 
 To A. B., (the perxon apoii irhoiii serrice has been direcled, !<et out tlii' iii'iIit], 
 
 If you wish to apply to discharge the foregoing order, or to add to, 
 vary, or set aside, tiie judgment, you must do so within fourteen days 
 from the service hereof. {When the order Ji.ren a time for the further jiro- 
 ceedini/.i, oilil,) And if you fail to attend at the time and placi' aiipointed, 
 either in person or by ytjur solicitor, such order will be nui(l(! and jToceed- 
 ings taken, in your absence, as may seem just and ex[ie(lieiit; and voti 
 will be bound by the judgment, and the further proceedings in tlie cause, 
 in the same maimer as if you had been originally made a party to tk 
 action, without notice. 
 
FORMS — N0T1CK8. 
 
 1^77 
 
 'Aon. 
 
 No. 34. 
 
 Notirc' til Lnciimbrancers sercfd inuicr liiile I^G. 
 
 Plaintiff. 
 Defendant, 
 
 1 action directed to the 
 ,f 18 , has been 
 
 18 . 
 
 idiict Sale. 
 
 e sale of the mortgaged 
 plaintiff, and yon are at 
 lis cause for the imrpose 
 
 III the Hi^h Court of Justice. 
 Division. 
 
 Between A. B. riaiutifT. 
 
 and 
 C. 1). Defendant. 
 
 Wlierea.s an action lias been instituted by the above named plaintiff for 
 the foreclosure (or sale) of (or enforcement of a lien on) certain lands, 
 {iiisi'ft (leacription of lands,) and I have been directed by the judgment 
 made in this cause, and dated the day of , to innuire 
 
 wlietlier any person, other than the plaintiff, has any charge, lien, or 
 iiiciinibraiice upon the said estate. And whereas it has been made to 
 appear before me that you have each some lien, charge or incumbrance 
 upon the said estate, and I have therefore appointed the day of 
 
 , at o'clock in the noon, for you to appear before me, at 
 
 my Chambers at , eitlier in person or by your solicitor, to prove 
 
 your claims. 
 
 Now you are hereby required to take notice ; Ist. That if you wish to 
 apply to discharge my order making you a party, or to add to, vary, or set 
 aside the judgment, you must do so within fourteen days after the service 
 hereof; and if you fail to do so, you will be bound by the judgment, and 
 the further proceedings in this cause as if you were originally made a 
 party to the action. '2nd. Tliat if you fail to attend at the time and place 
 4ippointed, you will be treated as disclaiming all interest in the land in 
 <lue8tion, and it will be dealt with as if you had no claim thereon, and 
 your claim will be in fact foreclosed. 
 
 W. li.. Master. 
 To 
 
 No. 35. 
 
 Appointment, nervfil iiiuh'r lUile 13S. 
 
 '■.'/ 
 
 ,, „(•</(■)• '/'''''■"," " /""■'!'• 
 
 iliri'ited. 
 
 •t out th-nrikri 
 
 -„ing order, or to add to, 
 
 f so within fourteen dio^ 
 
 atim.' for lh<- fnrlhvr pro^ 
 
 M,ue and place appomto ■ 
 
 will be made and proceed- 
 
 and expedient: ami ym> 
 proceedings u. the ou». 
 lallymadeapartytotlH 
 
 ti 
 
 and 
 
 Plaintiff, 
 Defendant. 
 
 In the High Court of Justice. 
 Division. 
 
 Between A, B., 
 
 C. D., 
 
 Having be-jn directed by the judgment in this cause, dated the 
 day of , to inquire whether any person other than the plaintiff has 
 
 any lien, charge or incumbrance upon the lands in tliejileading.s mentioned 
 being (uincrt <li'M-ription of Imdn), I hereby appoint the ilay of 
 
 next, at o'clock, in the noon, at my Chambers at , 
 
 to proceed with the said inquiries. 
 
 And you are hereby required to take notice : That if you fail to attend 
 at the time and place appointed, you will be treated as disclaiming all 
 interest in the land in question, and it will be dealt with as if you had no 
 claim thereon, and your claim will be in fact foreclosed. 
 
 W. L.. Mantcr. 
 
 J.A. • 62 
 
Vi 
 
 978 
 
 APPENDIX. 
 
 No. SG. 
 
 % 
 
 
 
 ^■3 
 
 AdrertiHcment for Creditorn, under Rule 'JiH. 
 
 Pursuant to a juili^nient [or an order] of tlu; Hij^li Court n( Justice. 
 
 Division, made in the matter of the estate of A. H., and in n ciiiise 
 
 S. at^ainst P. [Khurl titk\ , tlie creditors of A. B., hite of ju the 
 
 County of , wlio died in or about the month of 
 
 18 , are, on or before the day of IH , i,, send, 
 
 by post, prepaid to E. F., of , tlie solicitor of the (lefiiKtmit 
 
 <'.D.,thc executor or administratoi'i of the deceased ' uv ux .mni he 
 directed , tlioir Christian and surnames, addresses and descriptiini! tliu 
 lull particuhirs of the'", clan.."!, a statement of their accounts, mid the 
 Miture of tlieir security if any lield by them; or in default tiitn.'of, 
 tliey will be peremptorily excluded from the benefit of the said jiulfr. 
 nient [or orderj . Every creditor holdinj,' any security is to produce the 
 same before me at my Chambers, at, etc., on the day of 
 
 18 , at o'clock in the noon, beinf,' the time apponited for 
 
 adjudication on tlie ci.iims. 
 
 Dated this day of , IH . 
 
 (1. II., Master. 
 
 . No. IV7. 
 
 Notice til Creditiira to produce JJoeumeiits, under Rule 'JiH. 
 
 {Short Title.) 
 
 You are hereby recjuired to produce, in support of the claim sent in by 
 you, af,'ainst the estate of A. B. deceased [denciilie any document required], 
 before mo at my Chambers, at, etc., on the day of ,18 ,at 
 
 o'clock in the noon. 
 
 Da ed this day of , 18 . 
 
 G. R., of, etc., Solicitor for the plaintiff, 
 [or defendant, or an mail be '• . 
 To Mr. S. T. 
 
 No. 3H. 
 
 Notice to Creditor tint! rluim nllowed, under Rule O-Si 
 
 {Short Title.) 
 The claim sent in by yon against the estate of A. B., deceased, has bun 
 
 [with interest thereon at ft per cent., 
 
 day of ,18 yiindli for costs, or 
 
 allowed at the sum of ft 
 per annum, from the 
 (/.f the cage may he] . 
 
 1/ part only allou-ed, add.~li vou claim to have a larger sum allowed, 
 you are hereby reijuired to prove such further claim, and you are to file 
 [etc., ax in Form No. 3'J] . 
 
 Dated this day of , 18 . 
 
 G. R., of, etc., Solicitor for the plaintiff, 
 [or defendant, or a>i nuuj he] , 
 To Mr. P. P. 
 
FORMS — NOTICES. 
 
 979 
 
 No. 3». 
 
 Notice to Creditor to prore hi^ claim under Hale 'J84. 
 
 (Short Title.) 
 
 You are hei'eby required to prove the cliiim sent in by you against the 
 estate of A. B., deceased. You arc to file such aflidavit as you may be 
 advised ii' support of your claim, to t,'ive notice thereof to , Master 
 
 fir (1.1 the rase maij he I , on or before the day of 18 ; and to 
 
 attend personally, or by your solicitor, at his Chambers, on the day 
 
 of ,18 , at o'clock in the noon, bein^^ the time appointed 
 
 for adjudicating? on the claim. 
 
 Hated this (hiy of , 18 . 
 
 G. R., of etc., Solicitor for the plaintiff, 
 [or defendant, or as iiuii/ he] , 
 To Mr. S. T. 
 
 C.. II., Mtixter. 
 
 ider lUile 'KH. 
 
 No. 10. 
 
 Xotice that Clieques may lie receired, under Utile 987. 
 
 (Short Title.) 
 
 The chc([ues for the amounts directed to bo paid to the creditors of A. 
 B., deceased, by an order made in this action 'nr matter] dated the 
 day of . IH , may be received at the Accountant's Otiicc, in Osgoode 
 
 Hall, Torouto, on and after the day of , 18 . 
 
 To Mr. W. S. 
 Etc. 
 
 G. R., of, etc.. Solicitor for the plaintiff, 
 [or defendant, or as may he] . 
 
 U'r Itiile ,'M'^. 
 
 B., deceased, has bun 
 eon at « per cent., 
 
 , (i»d ft for costs, or 
 
 No. 41. 
 
 Notice of Appeal. (J. A. Sec. 71.) 
 
 In the Hiyli Court of .Justice. 
 Division. 
 
 Between A. B. (Respondent) plaintiff, 
 and 
 C. D. (Appellant) defendant. 
 
 Take notice that C. D., the above-named defendant, hereby appeals 
 from the (judgment, order or decision) pronounced in this action (or 
 matter) by the Divisional Court (or by tlie Hon. Mr. Justice 
 0° the day of , 1 *^ , whereby a judgment 
 
 given at the trial for the defendant '.vas set aside and a judgment 
 directed to be entered for the plaintiff (or as the case may require). 
 
H 
 
 980 
 
 APPENDIX. 
 
 PAUT IV. 
 
 No. 43. 
 
 KHrOUTS, Etc., BY MASTKRS. 
 
 /'()/•/// of ncpnrt ill Ailmiiiinlriitidii Suit. 
 
 In the High Court of Justice. 
 Division. 
 
 Between A. B. ami 
 
 C. 1). and 
 
 and 
 
 i'hiiiitiffs. 
 
 J)('f(.lulllllts. 
 
 Pursuant to the Order [or Judgment; horein made, dated the 
 day of . IH , having caused an ottice copy thereof to be seiveii 
 
 upon If/in' the iniinex of pi'rioim xcrrcil uuilfv Ilnh' :i2:!, luid nlso the wimi'^nf 
 tlione upon whom acrrice hax been (liqwiixed icith, and the reason fur ilispvii.t- 
 ing with serrive] , I proceeded to dispose of tlie muttern referred to me, and 
 thereupon was attended by tlie solicitors for all parties interested iirm 
 the cane maij he] . 
 \lfa Ouardian ad litem haK been appointed for ani/ of the partien, thin nlmiihl 
 
 he HO utated, and the reaaon why .inch appointment wax made , 
 and I find, as follows : 
 
 1. The personal estate not specifically bequeathed of the testiitn" 
 come to the hands of the executors, and wherewith they are cliiir^oiUil . 
 amounts to the sum of I , and they have paid, or are ciititlwi to 
 be allowed thereout, tlie Hiini of 1* , leaving a halaiuedue fioir. 
 them \or " to them," as the ease mai/ lie, of $ on that account. 
 
 [If no pemonnl entate, .•>■((//,• No personal estate has come to tlio liands of 
 the executors, nor are they chargeable with any. 
 
 2. The creditor's claims sent in pursuant to my advertiseiueut in tliat 
 behalf (published in issues of the neW8pa))or called ). 
 andwhich have been allowed, are set forth in the first Schedule hereto. 
 and amount altogether to $ 
 
 [// no creditors, say : No creditor has sent in a claim [)ursuant to my 
 advertisement in that behalf, nor has any such claim been proved 
 before m? ■ 
 
FORMS — RKPORTS. 
 
 981 
 
 of the pititi,;-', till" iliciihl 
 <iiitiiu-nt wd.f madi\. 
 
 'A. The funeral expenses of the testator timountinH to ft have 
 
 been paid by t^ie executors and are allowed to them in the amount of per- 
 
 floiial estate. 
 
 4. The le<^ucie8 f{iven by the testator are set forth in the second schedule 
 hereto, and with the interest therein mentioned, remain due to the persona 
 liamed [or tin the cunc may he] . 
 
 /). The personal estate of the said testator outstandinfj or undisposed 
 of, is set forth in the third schedule hereto. 
 
 |/)i «/(('.< third xchedule jierriiintil eMate not specijicalh/ bequeathed *hould he set 
 forth neparatelj/ from the other perxoiialti/ outstanding or undinponed 
 of. If there in no xpecifw bequest, it should be no stated in the body 
 of the report.] 
 
 6. The real estate which the said testator was sei^sed of or entitled to, 
 ftnd the incumbrances (//' any) affecting the same, are set forth in the 
 fourth schedule hereto. 
 
 7. The rents and prolits of the testator's real estate received by the i*aid 
 executors, or with which they are chargeable, amount to $ . and 
 they have paid, or are entitled to be allowed thereout, the sum of 9 , 
 ieavinj; a balance due from [or to^ them of t on that account. 
 
 \lf no rentu, etc., received, say : No rents and profits have come to the 
 hands of the said executors, nor are they chargeable with any.] 
 
 8. I have allowed to the said executors the sum of S as a 
 compensation for their personal services in the management of the said 
 
 estate. 
 
 
 neathed of tlie tfRtato' 
 
 vith they arc cluir-joiilii 
 
 ve paid, or hit (iititii'dto 
 
 iving a hahuKi' due from 
 
 on that account. 
 
 lias come to the hands of 
 with any. 
 
 ny advertiseuKMit in that 
 )er called )• 
 
 the first Schedule lieielo, 
 
 a claim pursuant to niv 
 ly such claim been proved 
 
rn 
 
 982 
 
 APPKNDIX. 
 
 V. 
 
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 Costs 
 
 of 
 
 this suit. 
 
 
 § S i 
 
 SJ& a 
 
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 Amount to 
 date of 
 Report. 
 
 
 Rate 
 per 
 
 'Cent. 
 
 Principal. 
 
 1 
 
 1 
 
 09 
 
 a 
 
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 b 
 
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 [Distinguish any wliich are secured! 
 by mortgage, lien or otherwise 
 entitled to any priority " 
 
 No. 
 
 
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FORMS — MASTER S OFFICE. 
 
 988 
 
 . 
 
 £ =?i 
 
 
 rticul 
 staiKl 
 ousel) 
 huuld 
 
 
 
 c5 -S^ » 
 
 
 
 
 J! - -1 
 
 
 r- o';:'^ 
 
 
 f^'s = 
 
 -: S ai 
 
 
 S y ^ c! 
 
 
 I^.o 
 
 
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 sJ <- 
 
 
 = •= 
 
 
 
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 — -V ^ 
 
 
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 +3 ■ . '-'• 
 
 
 ■^•S^i 
 
 C • u_ 
 
 W " ? 3 
 
 
 
 ■ -i-l 
 
 
 
 1 -r 1- ■« 2 
 
 
 « s -- 
 
 No. 4». 
 
 Conditiom of Sale referred to in Rule UG, 
 
 •■^ -r" 
 
 •^ xf-S 5 
 
 
 %;i 5- 
 
 
 
 
 "^ - S 
 
 
 
 
 
 
 £:= =J- 
 
 
 •S-^"='i 
 
 
 
 cc r^^ 
 
 
 S- O - «i 
 
 
 o t; :: - 
 
 
 
 
 — _. w -.J 
 
 
 *-< ;- -r 
 
 Si---/ 
 
 
 ^•f il 
 
 
 ■^ "^ ■/: .,. " 
 
 Sl5 i 
 
 
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 5 §t^ % 
 
 
 •*- *^ ««-H r/i ^ 
 
 
 
 
 
 
 
 
 
 1 =115 
 
 
 
 > , — 3 •** 
 
 
 5 ?=12= 
 
 
 
 
 r- ' X 4» 
 
 
 c -= • • *j aj 
 
 
 t ■= >, J ^ 
 
 
 ^2->-^^ 
 
 
 15 -I >•:;£ 
 
 
 
 
 
 
 
 oi€si 
 
 
 
 
 ►; i* = = o 
 
 
 '^'Si is a 
 
 
 
 o t. I. ? 
 
 1. No person shall advance less than ?10 at any bidding under S-WO, 
 nor lesH than J20 at any bidding over %T,{^, and no person shall retnu-t 
 liiH bidding. 
 
 2. Tlic hif^hest bidder shall be the purchaser ; and if any disputti .irise 
 ttH to the last or highest bidder, the property shall bo put up at a former 
 bidding- 
 
 ;i Tlie parties to the action, with the exception of the vendor, (and, 
 wimiifii lUiji imrtien, tniHteen, aijentx, or otltern in a Ji(liiiuarji HitiKititin,) shall 
 be at liberty to bid. 
 
 4. The purchaser shall, at the time of sale, pay down a deposit, in pro- 
 purtiou of f 10 for every #100 of the purchaHe money, to the vendor, or his 
 solicitor ; and shall pay the remainder of the purchase money, on the 
 dfty of next ; and upon such payment, the purchaser shall be entitled 
 to tlie conveyance, and to be let into possession ; the purchaser at the 
 time of sale to sif^n an af^reement for the completion of the purchase. 
 
 ."). The purchaser shall have the conveyance prepared at his own 
 e.\pensi'. and tender the same for execution. 
 
 (i. If the purchaser fails to comply with the conditions aforesaid, or 
 any of them, the deposit and aii other payments made thereon, shall be 
 forfeited, and the premises may be resold ; and the deficiency, if any, by 
 such re-sale, together with all charges attending the same, or occasioned 
 .by tlie defaulter, are to be made good by the defaulter. 
 
 No. 44. 
 
 lieport on Sale referred to in link lOi. 
 
 hi tlie High Court of Justice. 
 
 Division. 
 
 Between A. B., 
 
 Plaintiff, 
 
 and 
 
 Vj. D., Defendant. 
 
 Pursuant to the judgment (or order) of this Honoui'iible Court, bearing 
 date tile day of , and made in this cause, I have, under 
 
 the Rules of the Supreme Court of -Judicature, in tlie presence of (or, 
 after notice to), all parlies concerned, settled an advertisement and par- 
 ticulars and conditions of sale, for the sale of the lands mentioned or 
 referred to in the said judgment {or order), and such advertisement having, 
 according to my directions, been published in the (numiiKj tin' Ufirspaj)cr 
 iir iii'irsiiiijn'rx), once in each week for the weeks immediately pre- 
 
 ceding the said sale (or ax the cane iiKtji hf), and bills of the said sale having 
 been also, as directed by nw published in different parts of the township 
 (town ())• citiij of and the adjacent country and villages {or as tin' rasf 
 
 mij hi-), the said lands were offered for sale by public auction, according 
 to my appointment, on the day of , by me (or by IMr. 
 
 of , appointed by nie for that purpose, auctioneer), and such sale 
 
 was conducted in a fair, Ojien and proper manner, when . of 
 
 was declared the highest bidder for, and became the purchaser of the 
 same, at the price or sum of $ , payable as follows {set out sliortly 
 
 till' i-(iiiilitioii (if. lull' at to paiiment of the purcliaxc muucii). 
 
 .\\\ which having been proved to my satisfaction by proper and snfli- 
 eieiit evidence, 1 humbly certify to this Honourable Court. 
 
 Dated • 
 
 
rif. 
 
 084 
 
 APPENDIX. 
 
 % 
 
 No. 4!%. 
 
 PAirr V, 
 
 Al'l-M DAVITS. 
 
 Allidiiiil III' Si'i-ricf of Siiiiimon», 
 
 111 the Hifjli Court of JuHtice. 
 Division. 
 
 Hetweeii 
 
 niul 
 
 A. H.. IMiiintift'. 
 
 C. D., DefeiiilHiit 
 iiitike natli luiil h:i\ 
 
 I. of 
 
 iiH follows :-- 
 
 (1) I did on the day of 18 , personally Hurvn C. I),, tin 
 above-named defendant in this action with a true copy of the writ df 
 Hunimons (or notice of the writ of humnions) heroin hereto iiiinexod, li\ 
 fleliverinK the same to and leavin<{ the same witli the said dcfeiidiiiit on 
 the day last aforesaid at in the county of 
 
 (2) Upon the said copy so served as aforesaid was indorsed at the tiiii'.' 
 of such service true copies of all the indorsements appearinf< uiioii tlic 
 said ori({iiial writ of summons (or notice) except the indorseineiit herein- 
 after mentioned. 
 
 (8) To effect such service I necessarily travelled 
 miles. 
 
 (4) Subsequently, namely : upon the day of 
 
 I did indorse upon the said orifjinal writ of summons {or notice) tlic 
 day of the month and week of such service. 
 
 Sworn at this day of 18 . 
 
 Before me, etc. 
 This affidavit is filed on behalf of the 
 
 No. 4«. 
 
 Form of AJfUnrlt o/ Jiutijicntinii of llnil. 
 
 In the High Court of Justice. 
 Division. 
 
 Between A. R., Plaintiff, 
 
 and 
 
 C. D., Defendant. 
 
 I, B. B., one of the bail for the above-named defendant, make oatliunil 
 say, that I am a housekeeper, (or freeholder, (in the cane iiuiy he}, rpsidinj; 
 at (give particiiUtr description of the place of residence), that I am wortli 
 
F0UM8 — AFFIDAVITS. 
 
 5)85 
 
 property to the Amount of f^ (douhh- the oniniinl unuii'n to) ovoi' and 
 
 ttbove \vliat will pay all my ji;Ht debtH, {if htiil in tiiii/ ntlu'v iiftimi mill, luul 
 every other mnn for which I iiin now bail,) that I imi not bail for any do- 
 ffiidiint, except in tluH ii(;tion, (or if hail in ami otln'r lu-tiim or artiitnn add, 
 except for 0. 1)., at the Huit of K. V., in the (Hinh Court of .luHtice 
 Division) in the Huni of S . for (». II., at tlie Huit of .1. K., in the 
 ill the HUin of ft , xpi'dfyinii the xeveral dctinHH with thi' Cinirtu in 
 
 irhirh thi-ij air hniiuiht, and the numx in which the dejionent is hail). 
 
 Sworn, etc., ax umial. RuIcb T. T. 1h6«, 81. 
 
 A. B.. Plaintiff. 
 
 No. 47. 
 
 AffUlaiut by Landlord. 
 
 In the Hijjh Court of JuHtice. 
 
 Division. 
 
 Between A. B., Plaintiff, 
 
 and 
 
 C. D., Defendant. 
 
 I, t'f 
 
 as follows:— 
 
 I am in poHHession of the land Hou^jht to be recovered in this action by 
 myself (or by the said C. D., my tenant, (ax the caKc may he). 
 
 Sworn at this duy of 
 
 Before me, etc. 
 
 make oath and say 
 
 Mo. 48. 
 
 Affidacit an to Document*. 
 
 Ill the High Court of Justice. 
 Division. 
 
 Between A. B , Plaintiff, 
 and 
 C. D., Defendant. 
 
 I, the above-named defendan*. C. D., make oath and say as follows: 
 
 1. I have in my possession tr power the documents relatin{» to the 
 matters in question in this actiou set forth in the first and second parts 
 of the first schedule hereto. 
 
 2. I object to produce the said documents set forth in the second part 
 of the said first schedule hereto. 
 
 3. That [here ntate upon what ijronndi the objection in made, and verify the 
 
 facta an far «» may be]. 
 
 L I have had but have not now, in my possession or power the docu- 
 ments relatiu},' to the matters in (juestion in this suit set fortli in the 
 second schedide hereto. 
 
 a. The last menti »ned documents were last in my possession or power 
 
 on ytdte when] . 
 
 •i. That 'hire state what has become of the lant inenlioned documents, and 
 ill ichoxe poKKession they note are] . 
 
 
<)86 
 
 APPENDIX. 
 
 
 ^ 
 
 ^ 
 
 
 
 % 
 
 7. According to tlie best of my knowledge, information and belief, I 
 have not now, and never Imd in my possession, custody or power, or in 
 the iMJssession, custody, or power of my soHcitors, or afjents, Holicitor or 
 aj^ent, oi in tlie possession, custody, or power of any otlier persons or 
 person on my behalf, any deed, account, book of account, voucher, 
 receipt, letter, memorindum, paper, or writing;, or any copy of or extract 
 from any such document, or any otlier document whatsoever, relatintjto 
 the matters in (juestic/n in this action or any of them, or wherein aiiv 
 entry has been made relative to such matters, or any of them, other than 
 and except the documents sot forth in the said first and second schedules 
 hereco, and the pleadiuf^s and other proceedint^s in the action. 
 
 No. 4«. 
 
 AlHdarit on production when mide hij an officer of a Corporation. 
 
 In the Hijjh oourt of .Justice. 
 Division. 
 
 Between A. B., Plaintiff, 
 
 and 
 
 CD., Defendant. 
 
 I, of , make oath and say as follows: — 
 
 1. I am the {here Ktate tlie uume of the ojlice held hij the deinmeni in 'Ic 
 nerrire of the Companij on irhoM liehulf lie mulces the uflidiirit), and as sucli. 
 have knowledfje of all documents which are, or have been, in tin 
 custody or possession of the said (Company), relatinf^ to the matters in 
 question in tins action. 
 
 2. I am cognizant of the matters in question in this action. 
 
 a. The said defendants have in tin ir iwssession or jjower, the (loin- 
 ments relating to vlie nuitters in (jueslion in this action, set forth in tlit 
 first and second parts of the first schedule hereto. 
 
 4. The said defendi nts oijject to produce tlio said <i."'iinents set forth 
 in the oo'jond part of the said first schedule hereto. 
 
 ."). That (//(')•(; xtnfe on wlmt iinuindK the olijeetinii in made, iiiiJ rerijij tli'' 
 (nets an far as may be). 
 
 t). The said defendants have had, but liavo not now, in their possession 
 or power, the documents relating to the matters in question in this actimi. 
 «et forth in the second schedule liereto. 
 
 7. Tlie last mentioned ilocuiuents were last in the possession or powti' 
 of the said defendants on [tttnte when). 
 
 H. That (here ntnte what //</.>■ become of the lust mentioned doriiiiwntK, iiiiihn 
 whose jMsai'siiion theij now ore). 
 
 !). According to the best of my knowledge, information, and belief, tlif 
 said defendants have not now, and never had, in their possession. 
 custody, or ])ower. or in the possession, custody, or jiower of myself, orni 
 liny of its solicitors or agents, or of any person or persons whomsoever, on 
 its behalf any (proceed as in lost form). 
 
FORMS — AFFIDAVITS. 
 
 l>87 
 
 'ormation and belief, I 
 juatody or power, or in 
 , or agents, solicitor or 
 if any other persons or 
 c of account, voucher, 
 r any copy of or extract 
 whatsoever, relating to 
 them, or wherein any 
 any of them, other than 
 rst and second schedules 
 in the action. 
 
 )>)• ()/■ n Corporation. 
 
 as follows :— 
 
 irhl III tlw d,'iHW,-iil in >hf 
 th,' a(lid'irit),iw^i^^^^'^l''- 
 ., or have been, in tlu 
 elating to the matters in 
 
 in this action, 
 ision or power, the (l"c'i- 
 is action, set forth ni the 
 to. 
 
 said 'i."'inients set fort b 
 reto. 
 ,•„,! /x mad,; nnJ reriUj th^ 
 
 U now. in their possession 
 ,1 question in this action, 
 
 ill the possession or powir 
 
 III 
 
 ,ntio,„'ddorumi'iiU< '"<''" 
 
 nforniation, and belief, tk 
 had, in their possess^^o 
 V or power of myself, 01 
 ■or persons whomsoever, 0.. 
 
 No. Siih 
 
 Affidavit of Executor or Administrator ax to claimi, under Rule .9*7. 
 
 In the High Court of Justice. 
 Division. 
 
 Between A. B., plaintiff, 
 
 and 
 
 C. 1'., defendant. 
 
 We, A. B., of, etc., the abov; named plaintiff ["'' defendant, or as may 
 he], the executors [or adminieirators], of C. D., late of , in the 
 
 County of , deceased, and K. F., of, etc., solicitor, severally make 
 
 oath, and say as follows: — 
 
 I, the said E. F., solicitor] for myself say as follows : — 
 
 1. I have, in the paper writing now produced and shewn to me, and 
 marked A, set forth a list of all the claims the particulars of which have 
 been sent in to me by persons claiming to be creditors of the said C D., 
 deceased, pursuant to the advertisement issued in that behalf, dated 
 
 day of ,18 . 
 
 And 1, the said A. B., for myself, say as follows : 
 
 2. I have examined the several claims mentioned in the paper writing 
 now produced and shown to me, and marked A, and I have compared the 
 same with the books, accounts, and dociiments of the said C. D., [or .ix 
 WW//'"',"'"' ■•'iiite aiuj other inquiries or iiivestinations mode], in order to 
 ascertain, as far as I am able, to which of sucli claims the estate of the 
 said C. D. is justly liable. 
 
 3. From such examination 'and state an;/ other reasons , I am of opinion, 
 and verily believe, tliat the estate of the said ('. 1). is just'y liable to the 
 ariounts set forth in the sixth column of the first part of the said paper 
 writing marked A ; and to the best of my knowledge and belief, such 
 several amounts are justly due from the estate of the said C. D., and 
 proper to be allowed to the respective claimants named in the said 
 schedule. 
 
 I am of opinion tiiat the estate of the said C. 1). is not iustly liable to 
 the cluinis set forth in thesecond part of the said paper wrii-ng marked A, 
 and the same ou^jiit not to be allowed without proof by the respective 
 claimants, 'or. I am not able to state whether the estat-^ of the said C.I)., 
 is justly liiihle to tlie claims set fortli in the second part of tlie said paper 
 writing marked A, or wlietlier such claims, or any part thereof, are proper 
 to be allowed without further evidence , 
 
 Swoni, etc. 
 
 F.xliiliit referred to in the aliore Ajlidarit. 
 {Short Title.) 
 
 List of cliiims the particulars of which have been sent in to the said 
 H F.. the solicitin- of the plaintiff, or defendant, as mail he , by persons 
 claiming to he creditors of (>. 1)., deceased, ])ursuant to the advertise- 
 ment issued ill thai behalf, dated the day of , 18 
 
 This paper writing, marked A, was produced and shewn to , 
 
 and is the same as is referred to in his aftidavit, sworn before me 
 this day of , 18 . 
 
 \V. n.. etc. 
 
 h^ 
 
988 APPENDIX. 
 
 Fii-ci Part. - Claims proper to be allowed without further evidenw. 
 
 6 
 
 Name 
 
 of 
 
 ClaimantH. 
 
 Addresses 
 
 and 
 
 Descriptions. 
 
 ID 
 
 
 
 Nature 
 
 of 
 Claim, 
 
 Amount 
 Anioiini I proper 
 claimed. | to be 
 I allowed. 
 
 Second Part. — Claims which ought to be proved by tlie Claimants. 
 
 6 
 
 "u 
 
 Names 
 
 of 
 
 Claimants. 
 
 Addresses 
 
 and 
 DescriptiiMi. 
 
 
 ■ 
 
 No. 51. 
 
 Affidavit in xupport of Oiirninhee Order. 
 
 and 
 
 In the High Court of Justice. 
 Division. 
 
 Between Judgment Crtditor. 
 
 Judgment Debtor. 
 
 I, of the above-named judgment creditor [or solicitor for 
 
 the above-named judgment creditor] , make oath and say as follows ;— 
 
 1. By a judgment of the ("ourt given in this action, and dated the 
 day of 18 , it was adjudged that I [or the above-nainud judgment 
 
 creditor] sliould recover against the above-named judgment debtor 
 the sum of $ , and costs to be taxed, and the said conts were by » 
 
 taxing officer's certiticate dated the day of IH , allowoil 
 
 at $ 
 
 i 
 
FORMS — AFFIDAVITS. 
 
 1)89 
 
 it further evidence. 
 
 Amount 
 amount pioper 
 
 laimed. to be 
 
 allowed. 
 
 » c. 
 
 2. Tl said Htill remains iiiisiitisfieil to the extent of and 
 
 interest unioiintiiig to * 
 
 3_ (Sdwc, iiililri'ns (iiiil ilfsrrijiliou of (jdrniKhce) is indebted to the 
 
 iiidtjiuent debtor in the hihu of $ or tliereabouts. 
 
 (. Tlie siiid (iiixcrt nuiiic of iniriiishi'e) is within the jurisdiction of this 
 <'om-t. 
 Sworn at the day of 18 . 
 
 liefore mo 
 Thif. affidavit is filed on belialf of tlie 
 
 id by the Claimants. 
 
 ufe I Amount 
 ' 1 claimed. 
 
 im. 
 
 Order. 
 
 .ludument Crfcditor. 
 .Judgment Debtor. 
 
 t creditor [or solicitor for 
 hand say as follows :- 
 
 action, and dated the 
 ,e abovc-muued judgment 
 ,ed judgment debtor 
 ^ tl e said costs were bj » 
 yof IH .allowoa 
 
 No. 5^, 
 
 AfKdavit 0)1 Interph'udt'r. 
 
 ill tbe Hifih Court of Justice. 
 Division. 
 
 Between 
 
 and 
 
 Plaintiff, 
 Defendant. 
 
 I, of 
 
 !..s follows : — 
 
 the defendant in the above action, make oath and say 
 
 day of 
 
 1. Tbe writ of summo.is hei'ein was issued on the 
 \'< , and was served on me on tlio day of 
 
 vet delivered a statement of defence herein. 
 
 18 
 
 I have not 
 (is or are) 
 
 i. The action is brought to recover . The said 
 
 111 my possession, but 1 claim no interest thcreiri. 
 
 3. Tlie right to the said subject-matter of this action has been and is 
 
 claimed (if riiiiii hi writimj maki' tin' 7fritiii(i an rxliibit) by one 
 who {state I'.rju'rtutioti nf suit or tlnit he Inis nlreiidif sued). 
 
 ■4. I do not in any manner collude with the said or with the 
 
 above-named plaintiff, but I am ready to bring into Court or to pay or 
 ilispose of the said in such man* er as the Court may order or direct. 
 
 Sworn at the day of 18 . 
 
 Bufore me 
 This atVidavit ij filed on behalf of the 
 
990 
 
 APPRNDIX. 
 
 PART VI. 
 
 \ 
 
 % ii| 
 
 %ili 
 
 rf % 
 
 .-^. --^ 
 
 W^F-' f^'* 
 
 "3- 
 
 No. 33. 
 
 I'LHADINGS, 
 
 C'lniin. 
 
 In tlie Hif,'li Court of Justice. 
 Uivisioii. 
 
 Writ issued 3rtl September IH . 
 
 Between A. B., Plaintiff, 
 
 an(i 
 
 E. F., Defendant. 
 
 Stiiti'incnt of Cluiiii. 
 
 1. Between the 1st of January and the "iSth of Feljruary, IHT'J, the 
 phiintiff supplied in tlie defendant various articles of drapei'y ; and pnv- 
 nients on account were fi-oni time to time made by the I'.t'fendaiit. 
 
 2. On the '28tli of February, 187!), a balance remained due to tlu' iilain- 
 tiff of 5325, and an account was on *:hat day sent by the plaintilT to tin- 
 defendant showinf,' that balance. 
 
 3. On the 1st of March foUowinj^, defendant paid the plaintiff in- 
 che<jue ^32 on account of the same. Tlie residue of the said baluuiv. 
 amountinf,' to S2!)3, has never been paid. 
 
 The plaintiff claims ft 
 
 The plaintiff proposes that this action should be tried at Whitby. 
 Delivered the day of IH h\ 
 
 X. Y., of Plaintiff's Solicitor. 
 
 iNo. 34. 
 
 In the High Court of .Justice. 
 Division. 
 
 Writ issued 22nd December, 18 . 
 In the matter of the estate of A. B., deceased. 
 
 Between E. F., Plaintiff, 
 
 and 
 
 G. H., Defendant. 
 
 Statement of Claiiii. 
 
 1. A. B., of K., in tne County of L.. died on the Ist July, 1880, intes- 
 tate. The defendant, G. H., is the administrator of A. B. 
 
 2. A. B. died entitled to lands in the said county for an estate in fee 
 simple, and also to some other real estate and to personal estate. The 
 defendant has entered into possession of the real estate of A. B., and 
 received the rents thereof. 
 
FORMS — PLEADINGS. 
 
 991 
 
 of February, 1»7'J, tlif 
 3s of drapery; and imv- 
 Dy the lU'femliviit. 
 inaincd <luc to tlu' plftiu- 
 t by tlie pltiiutirf to tin- 
 
 t iiaid the i-hiintiff by 
 ilue of tlio siiiil biilmiff. 
 
 be tried at Whitby. 
 
 18 
 
 lA 
 
 3. A. B was never married ; he had one brother only, who pre-deceased 
 him without havinj? been married, and two sisters only, both of whom 
 also lire-deceased him, namely M. N. and P. Q. The j)laintiff is the only 
 eliild of M. N., and the defendant is the only child of P. Q. 
 
 The plaintiff claims— 
 
 1, Til have the real and personal estate of A. B., administered in this 
 Court, and for that purpose to liave all proper directions yiven and 
 iiccDiints taken. 
 
 ■>. To have a receiver appointed of the rents of his real estate. 
 
 :i, Siicli further or other relief as the nature of the case may re<juire. 
 
 Tlic plaintilf proposes that this action should be tried at London. 
 
 Delivered tiie day of 18 by 
 
 X. V. of Plaintiff's Solicitor. 
 
 No. 55. 
 
 Ill the Hif^h Court of .Justice. 
 Division. 
 
 In the matter of the estate of A. li., deceased. 
 
 Between K. F., Plaintiff, 
 
 and 
 
 Cj. II., Defendant. 
 
 Stlltl'inOlt (if Ih'fclll'r. 
 
 1. Tlie plaintiff is an illegitimate child of M. N. She was never 
 marvitd. The defendant admits tlie other allej^ations contained in the 
 1st ami 3rd paragraphs of the plaintiff's statement of claim. 
 
 2. The intestate was not entitled to any real estate at his death. 
 
 3. The personal estate of A. B. was not sr.fticient for the payment of 
 his debts, and has all been applied in payment of his funeral and testa- 
 meiitiuy expenses, and pai't of his debts. 
 
 Delivered the day of 18 by 
 
 ^- Y., of Defendant's Solicitor. 
 
 deceased. 
 
 the 1st July, IrtBO.intes- 
 
 tor of A. B. 
 
 3unty for an estate. n fee 
 
 *^to personal estate The 
 real estate of A. B., ana 
 
 No. 50. 
 
 In the High Court of Justice. 
 Division. 
 
 Writ issued '2'2nd December, IH 
 In the matter of the estate of A. B., deceased. 
 
 Between E. F., Plaintiff, 
 
 and 
 
 G. H., Defendant. 
 
 Statement of Claim. 
 
 !• A. B., of K., in the county of L., duly made his last will, dated the 
 l^tday of March, 1873, whereby he appointed the defendant and M. N. 
 
J>9'2 Al'PENDlX. 
 
 (wlio (lied ill tlio tostiitor'H lifetime), exectitorB thereof, and devised and 
 l)e(ineivtiuMl Ids real and [lerHonal estate to and to tlie use of his ext'cutors 
 in trust, to pav tlie rents and income tiicreof to the plaintiCf for h\n life' 
 and after his decease, and in default of liis having' a son who hIiduIiI attain 
 '21, or a (hint,'hter who shoid<l attain that at;e, or nuirry, njion IniKtasto 
 liis real estate for the person who would he the testator's heirat-law, and 
 as to his j)eisonal estate for the person, who would l)e the testater's next 
 of kin, if he liad died intestate at the time of the ileatli of tlu; plaintiff 
 and such failure of his issue as aforesaid. 
 
 2. The testator died on the 1st day of July, 1HS(), and liis will wa, 
 proved hy the defendant on the 1th of October, 1880. The plaintiff 1ms 
 not been nnirried. 
 
 3. The testator was at his death entitled to real and personal estate; 
 the defendant entered into the receipt of the rents of the n^al estate and 
 f,'ot in the personal estate; he has sold some jiart of the estiite. 
 
 The plaintiff claims: — 
 
 1. To have the real and personal estate of A. H., administered in this 
 Court, and for that purpose to have all i)roper directions t;iven and 
 aco(uints taken. 
 
 2. Huch further oi- other relief as the nature of the case may require 
 
 The piaintitT proposes that this action should be tried at Napanee. 
 
 Delivered the tUiv of 1,S bv 
 
 X. Y., of Plaintiff's Solicitor. 
 
 No. ,"57. 
 
 In the High Court of Justice. 
 
 Division. 
 
 Ill the matter of tlie estate of A. ii.. deceased. 
 
 Between K. V., Plaintiff, 
 
 and 
 
 Ci. II., Defendant. 
 
 StatciUi'iit of Dcleiirc 
 
 1, .\. H.'s will contained a charge of debts ; he died iiiHolvent; lie was 
 entitled at his deatii to some real estate which the defendant sold, and 
 which produced ihe net sum of ft22,r(00, and the testator had some per- 
 sonal estate which the defendant got in and which produced the net sniii 
 of ?;5,iOO. 
 
 2, The defendant apjdicd the whole of the said sums and the sum of 
 l^sl, which the defendant received from rents of the real estate, in tlu' 
 payment of the funeral and testamentary expenses and debts of tln' 
 testator. 
 
 8. The defendant made up his acconnt^. and sent a copy thereof to tlit 
 lilaintiff on the Ktth of Jannary, IHHd, and tillered the plaintiff free access 
 to the vouchers, ro verify such accounts, but he declined to avail liiiiiself 
 of the defendant's offer. 
 
 4. The defendant admits the ntlegations in the Ist and 2iid paraj^rapiis 
 of the plaintitT's statement of claim. 
 
 5. The defendant submits tliat the plaintiff ought to pay the costs of 
 this action. 
 
 Delivered the day of 18 by 
 
 .\. Y.. of Defendants' Solicitor. 
 
F0UM8 — PLKADING8. 
 
 99S 
 
 I'l'fof, ami devised and 
 the UKo (if his executors 
 ho iihiiiititT for liin life; 
 1, soil who slioiildiittaiii 
 uiiiry, iijioii Inist as to 
 itator'H huir-at-law, and 
 1 hu thi' tt'stator'B next 
 i; death (if the plaintiff, 
 
 IHKO, and his will \va^ 
 .880. 'I'lic plaintiff ll!l^ 
 
 il luul iiersoiial estate; 
 ts of the real estate aud 
 of the estate. 
 
 ii,, adniiinstercd in tlii> 
 per directions ^liven ami 
 
 ■ the case may rcipiire 
 1)0 tried at Napance. 
 
 is by 
 tor. 
 
 No. 58. 
 
 Anion (nidiii^t Did credere Ageiit< 
 
 ;,. doceiiKed. 
 ■f, 
 
 le died insolvent ; lie was 
 
 the defendant sold, and 
 
 le testator had some i)«r- 
 
 lich produced the net sum 
 
 said suiurt and the sum of 
 , „f the real estate, ni t n 
 tpenses and debts of tk 
 
 «c«t a ow thereof to tk 
 •ed the plaintiff fi'eeacce« 
 ;e declined to avail hniiself 
 
 ,he lat and 'ind para«raiili» 
 
 ff ought to pay the costs of 
 
 18 liv 
 icitor. 
 
 In the Hit^h Court of Justice. 
 Division. 
 
 Writ issued 2Hr(l August, IH 
 
 Between A. B. and Company, Plaintiffs, 
 
 and 
 
 Jl l'. and Company, Defendants. 
 
 Statement of Claim. 
 
 1 The plaintiffs are mainifacturers of artificial manures, carrying on" 
 business at , in the county of 
 
 2. The defendants are commission agents, carrying on business in 
 Toronto. 
 
 ;) In the early part of the year , the plaintiffs commenced, and 
 
 down to the 18 , continued to consij^n to the defendants, as 
 
 their agents, large quantities of their maiuires fo^' b^ile, and tlie defen- 
 dants sold the same and received the price tliereof and accounted to the 
 plaintiffs therefor. 
 
 •4, No express agreement has ever been entered into between the plain- 
 tiffs and tlu! defendants with respect to the terms of the defen(lant'8 
 emplovrnent as agents. The defendants have always charged the plain- 
 tiffs a connnisslon at per cent, on all sales effected by them, which is 
 the rate of connnission ordinarily charged by all del credere agents in 
 the said trade. And the defendants, in fact, always accounted to the 
 plaintiiTs for the price, whether they received the same from the purcliaser 
 or not. 
 
 i. The plaintiffs contend that the defendants are liable to them as del 
 credere agents, but if not so liable are, under the circumstances herein- 
 after mentioned, liable as ordinary agents. 
 
 ''. On the , Uie plaintiffs consigned to th defendants for 
 
 sale a Krge (juautity of goods, including tons of 
 
 7. On or about the , the defendants sold tons of 
 
 part of such goods to one G. H., for -,; , at three 
 
 months' credit, and delivereci the same to him. 
 
 8, G. H. was not, at that time, in good credit f, ml was in insolvent 
 circumstances, and the defendants might, by ordinary care and diligence, 
 have ascertained the fact. 
 
 !). G. H. did not pay for the said goods, but before the expiration of 
 the said three months for which credit had been given, the estate of the 
 said G. 11. was placed in iiciuidation under the Insolvency Acts then in 
 force; and the plaintiffs have never received the said sum of $ 
 or any part thereof. 
 
 The plaintiffs claim : 
 
 1. Damages to the amount of $ 
 
 2. Such further or other relief as the nature of the case may re(iuire. 
 The plaintiffs propose that this action should be tried at Hamilton. 
 
 Delivered the day of 18 by 
 
 X.Y.,of Plaintififa Solicitor. 
 
 J.A. 63 
 
 
994 
 
 APPENDIX. 
 
 Defonco. 
 
 %. 
 
 No. 5». 
 
 [Title aa in claim, omittin<^' date of issue of writ.J 
 
 Statement a/ Dcj'riice. 
 
 1. The defendants deny that the said commission, of per 
 cent, mentioned in para^riipli 4 of thi; claim is tlie rate of cnmmission 
 ordinarily charf^od by del credere aj,'ents in the said trade, and huv that 
 the same is the ordiiuiry commission for a^^ents other than dA cmlere 
 afients, and they deny that tliey ever acconnted to tlie plaintiffs for the 
 price of any t^oods, except after they had received the same from the 
 purchasers. 
 
 2. The defendants deny that they wore ever liable to the plaintiffs as 
 del credere agents. 
 
 3. With respect to the Hfch para},'rapli of the plaintiff's statement of 
 claim, tlie defendants say that at the time of tlu' said sale to the said 
 G. II., the said (1. II., was a person in f^ood credit. If the trntli is that 
 the said (jr. 11. was then in insolvent circumstances, the defendants did 
 not suspect and had not reason to suspect the same, and could not by 
 ordinary care or dilij^ence have ascertained the fact. 
 
 4. The defendants admit the allegations contained in paragraph 1, 2, 3, 
 f), 7 and i) of the plaintiff's statement of claim. 
 
 Delivered the day of 18 , by 
 
 X. Y., of Defendants' Solicitor, 
 
 Hill of ex- 
 change. 
 
 Olaiw. 
 
 No. OO. 
 
 In the High Court of Justice, 
 Division. 
 
 Writ issued 23vd August, 18 
 
 Between A. B., and C. I)., Plaintiffs, 
 
 and 
 
 E. v., and G. H., Defendants. 
 
 Statciiu'iit of Chum. 
 
 1. Messrs. M. N. & Co., on the day of drew a bill 
 of exchange ujjon the defendants for ■& , payable to the order of 
 ..he said Messrs. M. N. & Co., 3 months after date, and the defendants 
 accepted the same. 
 
 2, Messrs. M. N. A Co. indorsed tlie bill to the plaintiffs. 
 
 [3. (Introduced hij amendment to meet tlw defence in th, defendant's 
 utatement of defence' infra j. The plaintiff gave value and consideration 
 for the said bill in manner following, that is to say : on the 
 day 18 , the said Messrs. M. N. iV Co. were indebted to 
 
 the plaintiff in about ft the balanc^- of an account for goods sold from 
 time to time by him to them. On that day they ordered of the plaintiff 
 further goods to the value of about §> which last mentioneil goods have 
 since been delivered by him to them. And at the time of the order for 
 sucli last mentioned goods it was agreed between Messri^. M. X. cV Co. 
 and the plaintiff, and the order was received upon the terms, that they 
 
I 
 
 FORMS— TLEAjINOS. 
 
 995 
 
 J of writ.] 
 
 of per 
 
 rate of commiBsion 
 
 id tnulo, ftiiil Hiiy tliHt 
 
 thev than ilil credere 
 
 tho i)laiiititfs for the 
 
 il tlio sami; from the 
 
 lie to tlie plaiutiffa as 
 
 laiiitiff H statement of 
 said sale to tlie said 
 If tlie truth is that 
 ;eH, the defeiulaiits did 
 nie, and could not by 
 ct. 
 ed in paragraph 1, 2, 3, 
 
 18 ,by 
 
 or. 
 
 < . 
 ntiffs, 
 
 ts. 
 
 of drew a bill 
 
 , payable to the order of 
 ale, ant 
 
 the defendants 
 
 3 plaintitls. 
 
 Irfeiicc ill till- defendant'* 
 valno and consideration 
 say : on the 
 J. k Co. were indebted to 
 :ount for «oods sold from 
 y ordered of the planitiff 
 ist mentioned ^joods have 
 the time of the order for 
 con Mcssr^^. M. N. A Co. 
 ipou the terms, that they 
 
 should indorse and hand over to him tlie hill of exchanf^e sued upon, 
 tocether with various other seeurities on account of the said previous 
 balance, and the |)r'iCo of the tjoods so ordered on that day. The said securi- 
 ties, includinf» the bill sued upon, were thereupon on the same day 
 indorsed and handed over to the plaintiff.] 
 
 i. The bill became due on the , and the defendant has not 
 
 paid it. 
 
 The plaintiffs claim : — {.■itate claim) 
 
 The plaintiffs propose that this action should be tried at Kin^jston. 
 Delivered the day of 18 , by 
 
 X. Y., of • Plaintiffs' Kolicitor. 
 
 No. <n. 
 
 [Title.] 
 Stdti'iiti'iit vf Defence. 
 
 1. The bill of exchange mentioned in the statement of claim was drawn Defouoe. 
 and accepted under the circumstances hereinafter stated, and except as 
 hereinafter mentioned there never was any consideration for the accept- 
 ance or payment thereof by the defendants. 
 
 3. Shortly before the acceptance of the said bill it was af^reed between 
 the said McKsrs. M. N. & Co., the drawers thereof, and the defendants, 
 that the said Messrs. M. N. tfc Co. should sell and deliver to the defend- 
 ants free on board ship at the port of 1,200 toiiH 
 of coal durinj^ the month of , and that the defendants should 
 pay for the same by accepting the said Messrs. M. N. & Co.'s draft for 
 J at (5 months. 
 
 ■3. The said IVfessrs. M. N. & Co. accordingly drew upon the defendants, 
 and the defendants accepted the bill of exchange now sued upon. ■'" '■ 
 
 4. Tlie defendants did all things which were necessary to entitle them 
 to delivery by the said Messrs. M. N. ct Co. of the said 1,200 tons of coals 
 under their said contract, and the time for delivery has long since elapsed ; 
 but tlie said Messrs. M. N. ct Co. never delivered the same, or anv part 
 thereof, but have always refused to do so, whereby the considerai/xon for 
 the defendants' acceptance has wholly failed. 
 
 5. The plaintiffs first received the said bill, and it was first indorsed to 
 them after it was overdue. 
 
 fi. The plaintiffs never gave any value or consideration for the said bill. 
 
 7. The plaintiffs took the said bill with notice of the facts stated in the 
 2nd, 3rd, and Ith paragraphs thereof. 
 
 Delivered the day of 18 by 
 
 X. Y., of Defendants' Solicitor. 
 
 No. «a. 
 
 (Reply where i>lainti(j' doei^ not introduce into Jiiii statement of claim the 
 ulleyationn necesmry by way of reply to the defence.) 
 
 rTitle.] 
 
 liephj. 
 
 I. The i)laiiiti£f joins issue upon the defendant's statement of defence. 
 i. The plaintiff gave value and consideration for the said bill in manner 
 
 day of 18 , the 
 
 following, that is to say, on the 
 
996 
 
 Aft'ENDlX. 
 
 Kaid MeHHrs. M. N. it Co. were iiidebtod to the pliiintiff in alioiit ? 
 the haliiiicc of an aecoiiiit for yoo'U Hold from tinii' to time liy liimto 
 tlu'iii. On that day tliev orilered of thi^ plaintiff fnrtiicr niMi.is to the 
 vahie of abont ? which lint mentioned ^^oodH have snice i)een 
 
 delivered hy him to them. At the tinui of the order f(>r such lust men- 
 tioned (^oo(1h it was a;ireed between MesHrH. M N. iV (!o. and the |iliiiiitiff, 
 and the order wuh n.'ceived upon the terniH, that they shoidd indorse iincl 
 hand over to him the bill of exehanj^e sned npon, together with varioiin 
 other HeciiritieH on account of the said previouH balance, and tli(> price of 
 the floods HO ordered on that day. 'i'he naid Kecuritien inehiilini,' tiu'hilj 
 sued upon, were thereupon on the Hame day indorsed and handed over to 
 the plaintiff. 
 
 Delivered the (hiy of is l)y 
 
 X. Y., of riamtiff's Solicit(n'. 
 
 No. «», 
 
 Promissory In the Hif^h Court of Justice, 
 "°*^' DiviHion. 
 
 Writ inaued Hrd November, 18 
 
 IJetweeu A. B., I'laintiff, 
 
 and 
 
 E. F., Defendant. 
 
 Stdtcniciit of Cidiiii. 
 
 Claim. 1. The defendant on the day of 
 
 made a promiHsory note, whereby he promised to pay to tlie plaintiff or 
 Ilia order f 3 months after date. 
 
 2. The note became due on the day of 
 
 18 , and the defendant has not paid it. 
 The plaintiff claims : — 
 
 The amount of the note and interest thereon to judfjment. 
 The plaintiff proposes that this action sliould be tried at Peterborough. 
 
 Delivered the day of ) 8 , by 
 
 X. Y., of Plaintiff's Solicitor. 
 
 No. 64. 
 
 ^Title.] 
 Statement of DeJ'enee. 
 
 Defence. 1. The defendant made the note sued upon under the followiuf^ circum- 
 
 stances:— The plaintiff and defendant had for some years been in part- 
 nership as coal merchants, and it had been agreed between them that 
 they should dissolve partnership, that the plaintiff shonld retire from the 
 business, that the defendant ahould take over the whole of the partner- 
 ship assets and liabilities, and should pay the plaintiff the value of his 
 share in the assets after deducting the liabilities. 
 
FOHMS — PLKAniNOS. 
 
 997 
 
 iff in alidiit * 
 lU' to tiiiif l)\ liiin to 
 I'lirtiicr H(iiii|-i to tile 
 ;(iiii1h liavc HUK'.L' been 
 er f(>r hmcIi lust men- 
 ( !o. mill till' |iliiiiitiff, 
 y slioiilil iiiilnrsi' ftiid 
 oKi'tlii'i' with viirioiis 
 unco, and the price of 
 ticH incliiiliii<„' the bill 
 1 and liamli'il over to 
 
 IS 
 
 by 
 
 2. 'I'll'' plaiiitifT lIuM-tMiiion undortook to i-xaniiuo tlio |)iirtiUTHlii|) hocks, 
 Rn<i iiHiiiiii' into the state of tlio |iartni>i'slii|) assets and liahilities ; and lie 
 (lid iii'ciirdip^ly uxaniino tins Ixxjks, and make the* said in()nirieH, and he 
 thert'iipoii repn^Hontixl to the defendant that the assetH of the tirni 
 cxceeilnl ^lO.ODO, and that tlu! liiihilitics of the firm were nndtu' *;i,0()(>, 
 wiiereiis the fiKtt was tiuvt the assets of the tirni wore less than f "j.OOO, 
 mill the liahilities of the tirni largely exiieedeil tlu! assets. 
 
 The iiiisrepri'sentations inentioiUMl in the last i)araj;ra|)li induced the 
 <|ofeii(liiiit to make the note now siK'd on. and there never was any other 
 consideration for the niakiii;{ of the note. 
 
 Delivei'ed the 
 
 X. v., of 
 
 day of 
 Dofendant's Solicitor. 
 
 IS . bv 
 
 No. U.l. 
 
 Stiilriiii'iit III' I 'liiiiii. 
 
 In the llinU (^onrt of Justice, 
 Division. 
 
 ,'of 
 pay to the iihiiiiliff or 
 
 day of 
 
 to judf^jnient. 
 J tried at PetorborouKh. 
 18 ,by 
 
 .\ction on 
 Hill of ox- 
 chauge. 
 
 Writ issued 1st February, IH . 
 
 Between A. ]'.., Plaintiff, 
 
 and 
 
 C. D , Defeuihint. 
 
 1. Tlie jilaintiff on the day of IS , drew ('laini. 
 !i liill of exc.lmiif^e ii]K)n the defendant for ^ i)ayable '.i months after 
 
 (late, luid the defendant acce])ted the same. 
 
 2. The hill became due on day of IH , and the 
 (Icfyiidaiit has not paid it. 
 
 '^. ' Aiiii'iiilmi'itt til vii'ct (h'ft'uvc infra.) The defendant ,wbo at the time 
 of the acceptance of the said bill was an infant within the ane of 21 
 years, ratified and confirmed tlie said acceptance after bo attained full 
 age iiiid before action, by a writin-,' made and sif^ned by him] 
 
 The [ilaintiff claims : — l Stuti' claim.) 
 
 The plaintiff proposes that this action should be tried at Picton. 
 
 Delivered the day of 18 , by 
 
 X. Y., of Plaintiff's Solicitor. 
 
 
 :er the foUowin-^ circiira- 
 lome years been in part- 
 reed between them that 
 ff should retire from the 
 16 whole of the partner- 
 .aintiff the value of hia 
 
 No. (m. 
 
 Statement of Defence. 
 [Title.] 
 
 At the time of makinj^ the alleged acceptance of the said bill the 
 defeiuiaiit was an infant within the age of '21 years. 
 
 Delivered the day of 1« , by 
 
 ^- Y., of Defeudaut'a Solicitor. 
 
WM 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
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 Photographic 
 
 Sciences 
 Corporation 
 
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 33 WEST MAIN STREET 
 
 WEBSTER, NY. 14580 
 
 (716) 872-4503 
 
T 
 
 
 
 '^ 
 
998 
 
 APPENDIX. 
 
 No. or. 
 
 {Reply cohere plaintiff does not introduce into Iiix statement of claim the 
 allegations necessary by lu-ay of reply to the defcnee. 
 
 ['J'itle.] 
 
 Ihply. 
 
 The clef endant C. D., who at the time of the acceptance of tlie said bill 
 wa; an infant within the aj^e of '21 years, ratified and confirmed the said 
 ■cceii^ance after he attained full age and before action, by a writinj^ made 
 i-.id signed by him. 
 
 Delivered the dav of 18 . by 
 
 X. Y., of Plaintiff's Solicitor. 
 
 No. «S. 
 
 Claim. In the Hif^h Court of Justice. 
 
 Bill of ex- Division. 
 
 chaufiie and 
 
 consider- Writ issued 3rd October, 18 . 
 
 ation. 
 
 Between A. B., and C. D., Plaintiffs, 
 
 and 
 
 E. F. and G. H., Defendants. 
 
 Statement of Claim. 
 
 Claim. 1. The plaintiffs are merchants, factors, and commission 
 
 agents, carrying on business in Toronto. 
 
 2. The defendants are merchants and commission agents, carrying on 
 business in Montreal. 
 
 3. For several years prior to the 18 , the pluintiffs 
 had been in the habit of consigning goods to the defendants for sale, as 
 their agents, and the defendants had b^en '•' tiie habit of consigning goods 
 to the plaintiffs for sale, as their agents ; and each party always received 
 the price of the goods sold by him for the other ; and a balance was t'roni 
 time to time struck between the parties, and paid. 
 
 On the of , the moneys so received by the 
 
 defendants for the plaintiffs, and riiniining in their names, largely 
 exceeded tin. moneys received by the plaintiffs for the defendants, and a 
 balance of I was accordingly due to the plaintiffs from the defendants. 
 
 •1. On or about the , 18 , the plaintiffs sent to tlie 
 
 defendants a statement of the accounts between them , shewing the said sum 
 as the balance due to the plaintiffs from the defendants; and the defend- 
 ants agreed to tha said statement of accounts as correct, and to the said 
 sum of ■& as the balance due by them to the plaintiffs, and 
 
 agreed to pay interest on such balance if time were given to them. 
 
 5. The defendants requested the plaintiffs to give them tiiree months' 
 time for payment of the said sum of J , and the jjlaintiffs iigreed 
 
 to do so upon the defendants accepting the bills of exchange hereinafter 
 mentioned. 
 
lent of chiim the 
 
 ce of the said bill 
 onfirmcd tlie said 
 by a writing,' made 
 
 18 ,by 
 
 s, and commission 
 
 f;ents, carrying on 
 
 , the plaintiffs 
 idants for sale, as 
 f consif,'ninfi ^oods 
 ty always received 
 balance was from 
 
 80 received by the 
 ir names, liirj,'ely 
 defendants, and a 
 im the defendants. 
 
 intiffs sent to the 
 .'winfi the said sum 
 ; and the defcnd- 
 ;t, and to the said 
 the plaintiffs, and 
 an to them. 
 
 em tiiree months' 
 B plaintiffs a),'reed 
 hange hereinafter 
 
 FORMS PLEADINGS. 
 
 6. The plaintiffs thereupon on the drew two bills 
 
 of exchange upon the defendants, one for ^ , and the other for 
 
 $ , both payable to the order of the plaintiffs three months after 
 
 date, and the defendants accepted the bills. 
 
 The said bills became due on the 18 , and the 
 
 defendants have not paid the bills, or either of them, nor the said sum of 
 
 The plaintiffs claim : — 
 
 § and interest to the date of judgment. 
 
 The plaintiffs propose that this action should be tried at Toronto. 
 
 Delivered the day of 18 , by 
 
 X, Y., of Plaintiffs' Solicitor. 
 
 999 
 
 No. 6«. 
 
 Ill the High Court of Justice, 
 - — Division. 
 
 False 
 
 imprisoii- 
 
 meut. 
 
 Writ issued 3rd September, 18 . 
 
 Between A. B., Plaintiff, 
 and 
 E. F., Defendant. 
 
 Statement of Claim. 
 
 1. The plaintiff is a journeyman painter. The defendant is a builder Claim. 
 having his building yard, and carrying on business at Ottawa, and for six 
 months before and up to the '22nd August, 18 , the plaintiff was in the 
 defendant's employment as a journeyman painter. 
 
 2. On the said 22nd August, 18 , the plaintiff' came to work as usual 
 in the defendant's yard, at about six o'clock in the morning. 
 
 3. A few minutes after the plaintiff had so come to work the defend- 
 ant's foreman, X. V,, who was then in the yard, called tlie plaintiff to 
 him, and accused the plaintiff of having on the previous day stolen a 
 quantity of paint, the property of tlie defendant, from the yard. The 
 plaintiff denied the charge, but X. Y. gave the plaintiff into the custody 
 of a constable, whom he had previously sent for, upon a charge of stealing 
 paint. 
 
 4. The defendant was present at the time when the plaintiff was given 
 into custody, and author-'zed and assented to his being given into custody ; 
 and in any case X. Y., i!i giving him into custody, was acting within the 
 scope and in the course of his employment as the defendant's foreman, 
 ami for the purposes of the defendant's business. 
 
 :"). The plaintiff upon being given into custody, was taken by the said 
 constable a considerable distance through various streets, on foot, to the 
 police station and he was there detained in a cell till late in 
 the same afternoon, when he was taken to the police court, and 
 
 the charge against him was heard before the magistrate then sitting there, 
 and was dismissed. • - ' 
 
1000 
 
 APPENDIX. 
 
 6. In conse(iuence of beiiif,' so f-iven into custody, the plaintiff siift'ereil 
 annoyance and disgrace, anil loss of time and waf^ew, and loss (if credit 
 and reputation, and was thereby unable to obtain any enij)l(jyiiieiit or 
 earn any waj^es for three months. 
 
 The plaintiff claims | da"'";'Ofi. 
 
 The plaintiff proposes that this ac'ijn should be tried at Ottawa. 
 
 Delivered the day of i,s ijy 
 
 X. Y., of Plaintiff's Solicitor. ' " 
 
 No. 70. 
 
 [Title.] 
 
 Stalement of Bcfowe. 
 
 Dcfonce. 1. The defendant denies that he was present at the time when the 
 
 plaintiff was f^iven into custody, or that lie in any way authorized or 
 assented to his beinf? given into cnitody. And the said X. Y., in ^iviiij> 
 the plaintiff into custody, did not act within the scope or in the course of 
 his employment as the defendant's foreman, or for the purposes of the 
 defendant's business. 
 
 2. At some time about five or six o'clock on the , being 
 
 the evening before the plaintiff was given into custody, a large (|uantity 
 of paint had been feloniously stolen by some person or persons from u 
 shed upon the defendant's yard and premises. 
 
 8. At about 5.30 o'clock on the evening of the tlie jilaiutiff, 
 
 who had left off work about half an hour previously, was seen coming' out 
 of the shed when no one else was in it, although his work lay in a distiint 
 part of the yard from, and he had no business in or near the sliud. He 
 was then seen to go to the back of a stack of timber in another ])artof the 
 yard. Shortly afterwards the paint was found to have been stolen, and it 
 was found concealed at the back of the stack of timber behind whicli the 
 pliiintiff had been seen to go. 
 
 4. On the following morning, before the plaintiff was given into custody, 
 he was asked by X. Y. what he had been in the shed and behind the stack 
 of timber for, and he denied having been in either place. \. Y. had 
 reasonable and probable cause for suspecting, and did suspect tliat the 
 plaintiff was the person who had stolen the paint, and thereupon gave 
 him into custody. 
 
 Delivered the day of 18 , by 
 
 X. Y., of Defendant's Solicitor. 
 
 Fraud. 
 
 Claim. 
 
 No. 71. 
 
 In the High Court of Justice. 
 Division. 
 
 Writ issued 3rd September, 18 
 
 Between A. B., Plaintiff, 
 
 and 
 
 E. F., Defendant. 
 
 Statement of Claim. 
 
 1. In or about March, 1880, the defendant caused to be inserted 
 
 iu the Newspaper an advertisement, in which he offered for sale the 
 
plaintiff suffered 
 uiid loss (if credit 
 y eni')loyiiieiit or 
 
 d at Ottawa. 
 
 LS ,by 
 
 the time wlion the 
 way authorized or 
 aid X. Y., in ^iviii;^ 
 B or in the course of 
 the purposes of the 
 
 , l)ein(> 
 dy, n. lar^'e (nuiutity 
 n or persons from a 
 
 tho jilaintiff, 
 vas seen coniin;; out 
 ork lay in a distunt 
 near the shed. He 
 1 another part of the 
 ve been stolen, audit 
 ler behind which the 
 
 19 fjiven into custody, 
 and behind the stack 
 • place. X. Y. had 
 did suspect that the 
 and thereupon ^^ave 
 
 18 , by 
 
 itor. 
 
 caused to be inserted 
 he offered for sale the 
 
 FORMS — PLEADINGS. 
 
 lease, fixtures, fittinfjs, goodwill, and stock-in-trade of a baker's shoj) and 
 business, and described the same as an increasiuH business, and doin^,' 
 twelve barrels a week. The advertisement directed application for partic- 
 ulars to be n-ado to X. Y. 
 
 2. Tiie plaintiff having seen the advertisement applied to X. Y., who 
 placed him in communication with the defendant, and negotiations ensued 
 between the plaintiff and the defendant for the sale to the plaintiff of tlie 
 defendant's bakery at with the lease, fi.xtures, fittings, stock- 
 
 in-trade, and good-will. 
 
 :j. In the course of these ne^'otiations the defendant rejieatedly stated to 
 the plaintiff that tlie business was a steadily increasing business, and that 
 it was a business of more than twelve barrels a week. 
 
 4. On the ')th of April, 1880, the plaintiff, believing the said statement 
 of the defendant to be true, agreed to pnrchase the said premises from the 
 defendant, for $2,000, and paid to him a deposit of t-iOO in respect of the 
 purchase. 
 
 "). On the luth of April the purchase was completed, an assignment of 
 the lease executed, and the balance of the purchase money paid. On the 
 same day the plaintiff entered into possession. 
 
 ('). The j)laintiff soon afterwards discovered that at the time of the 
 negotiations of the said purchase by him and of the said agreement, and 
 of the conii)letion thereof, the saifl business was and had long been a 
 declining business ; and at each of these times, and for a long time before. 
 it had never been a business of more than four barrels a week. And the 
 said premises were not of the value of S'2,000, or any saleable value 
 whatever. 
 
 7. The defendant made the false representations hereinbefore men- 
 tioned well knowing them to be false, and fraudulently, with the intention 
 of inducing the plaintiff to make the said purchase on the faith of them. 
 
 The plaintiff claims $ damages. 
 
 The plaintiff proposes that this action should be tried at Brockville. 
 
 Delivered the day of 18 , by 
 
 X. Y., of Plaintiff s Solicitor. 
 
 No. T2. 
 
 [Title.] 
 
 Stdtement of Defence. 
 
 1001 
 
 !5fes. 
 
 1. The defendant says that at the time when lie made tlie representa- Defence, 
 tions mentioned in the 3rd paragraph of the statement of claim and 
 throughout the whole of the transactions between the plaintiff and 
 defendant, and down to the completion of the purchase and the relin- 
 quishment by the defendant of the said shop and business to the plaintiff, 
 
 the said business was an increasing business, and was a business of over 
 1*2 barrels a week. And the defendant denies the allegations of the 0th 
 paragraph of the statement of claim. 
 
 2. The defendant repeatedly during the negotiations told the plaintiff 
 thai he must not act upon any statement or representation of his, but 
 must ascertain for himself the extent and value of the said business. 
 And the defendant handed to the plaintiff for this purpose tlie whole of 
 his books, shewing fully and truthfully all the details of the said busi- 
 
1002 
 
 APPKNDIX. 
 
 \ 
 
 Hi 
 
 r. 
 
 
 I 
 
 ncMS, and from which the nature, extent, and vahie thereof conld bo fully 
 seen, and tliose books were examined for tliat pur))oso by the ])liuiitiff, 
 and by an accountant on his behalf. And the plaintiff made the ])iu'- 
 chase in reliance upon his own judj^mcnt, and the result of his own in- 
 quiries and investif^ations, and not upon any statement or representation 
 whatever of the defendant. 
 
 3. The defendant admits the allegations of parat,'raphs 1, 2, 8, and i 
 of the statement of alaini. 
 
 day of 
 Defendant's Sol'citor. 
 
 LS ,by 
 
 
 
 Delivei'ed the 
 X. Y., of 
 
 No. 7». 
 
 Guarantee. In the High Court of Justice, 
 — Division. 
 
 Writ issued 3rd September, 18 . 
 
 Between A. B. and C. D., Plaintiffs, 
 
 and 
 
 E. F. and G. IL, Defendants. 
 
 Statement of Claim. 
 
 Claim. 1. Tlio plaintilfs are brewers, carrying on their business at Guelph, 
 
 under the firm of X. Y, &. Co. 
 
 2. In the month of March. 1879, M. N. was desirous of entering into 
 the employment of the plaintiffs as a traveller and collector, and it was 
 agreed between the plaintiffs and the defendants and M. N., tliat the 
 plaintiffs should employ M. N. upon the defendants entering into the 
 guarantee hereinafter mentioned. 
 
 3. An engagement in writing was accordingly made and entered into, 
 on or about the 30tli March, lH7i), between the plaintiffs and the 
 defendant, whereby, in consideration that the plaintiffs would employ 
 M. N. as their collector, the defendants agreed that they would be an- 
 swerable for tlij due accounting by M. N. to the plaintiffs for, and the 
 due payment over by him to tlie plaintiffs of all moneys which he should 
 receive on their behalf as their collector. 
 
 4. The i)laintiff.4 employed M. N. as their collector accordingly, and he 
 entered njjon the duties of such employment, and continued therein 
 down to the 31st September, 18H0. 
 
 5. At various times between the 2!)th of September, and the 2r)th of 
 December, IHHO, M. N. received on behalf of the plaintiffs and as their 
 collector, sinnsof money from debtors of the plaintiffs, amounting in the 
 whole to the sum of 'jf3,400 ; and of this amount M. N. neglected to 
 account for or pay over to the plaintiffs sums amounting in the whole to 
 $'J08, and appropriated the last-mentioned sums to his own use. 
 
 (). The defendants have not paid the last mentioned sums, or any part 
 thereof, to the plaintiffs. 
 
 The plaintiffs claim : — (State claim.) 
 
 The plaintiffs propose that this action should be tried at Guelph. 
 
 Delivered the day of 18 , by 
 
 X. Y., of ■ Plaintififs' Solicitor. 
 
FOUMS — PLEADINGS. 
 
 1003 
 
 reof could bo fully 
 io by the plaintiff, 
 ,iff made the i)ui'- 
 sult of his own in- 
 t or representation 
 
 •aphs 1, 2, 3, and I 
 18 ,by 
 
 s, 
 
 business at Guelpli, 
 
 rous of entering' into 
 
 collector, and it was 
 
 and M. N., that the 
 
 its enterinj^ into the 
 
 ide and entered into, 
 3 plaintiffs and the 
 lutiffs would employ 
 it they would be an- 
 )laiutiffs for, and the 
 ineya which he should 
 
 n- accordiufily, and he 
 id continued therein 
 
 iber, and the '25th of 
 plaintiffs and as their 
 liffs, aniountiuu in the 
 it M. N. neglected to 
 anting in the whole to 
 ) his own use. 
 nod sums, or any part 
 
 tried at Guelph. 
 
 IH ,by 
 r. 
 
 Negligence. 
 
 No. 74. 
 
 In the nif,'li Court of Justice. 
 
 Division. 
 
 Writ issued 3rd Se))tember, 18 
 
 Between A. B., Plaintiff, 
 and 
 
 E. F., Defendant. 
 
 Stdti'iiu'iit (if Clniin. 
 
 1. The plaintiff is a shoemaker, carryin<^ on business at Toronto. The Claim, 
 defendant is a soap and candle manufacturer at the same place. 
 
 2.. On the 23rd May, 1881, tlie plaintiff was walking eastward along the 
 south side of King Street, in the city of Toronto, at about H o'clock in the 
 afternoon. He was obliged to cross Yonge Street, which is a street 
 running into King Street at right angles thereto. While he was crossing 
 the street, and juat before he could reach the foot pavement on the 
 further side thereof, p two-horse van of the defendants under the charge 
 and control of the defendant's servants, was negligently, suddenly, and 
 without any warning, turned at a rapid and dangerous pace out of King 
 Street into Yonge Street. The pole of the van struck the plaintiff and 
 knocked him down, and he was much trampled by the horses. 
 
 3. By the blow and fall and trampling the plaintiff's left arm was 
 broken, and he was bruised and injured on the side and back, as well as 
 internally, and in consequence thereof the plaintiff was for 4 months ill 
 and suffering, and unable to attend to his business, and incurred heavy 
 medical and other expenses, and sustained great loss of business and 
 profits. 
 
 The plaintiff claims S damages. 
 
 The plaintiff proposes that this action should be tried at Lindsay. 
 
 Delivered the 
 X. Y., of 
 
 No. 75. 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 ,by 
 
 Title. 
 
 StiitemoH of De/cnce. 
 
 1. The defendant denies that the van was the defendant's van, or that Defence 
 it was under the charge or control of the defendant's servant. The van 
 belonged to John Smith, of , a carman and contractor, 
 employed by the defendant to carry and deliver goods for him ; and the 
 persons under whose charge and control the said van was were the 
 servants of the said John Smith. 
 
 2. The defendant denies that the van was turned out of King Street 
 either negligently, suddenly, or without warning, or at a rapid or danger- 
 ous pace. 
 
 3. The defendants says that the plaintiff might and could by the 
 exercise of reasonable care and diligence, have seen the van approaching 
 him, and avoided any collision with it. 
 
 Delivered the day of 18 , by 
 
 X. Y., of . Defendant's Solicitor. 
 
1004 
 
 APPKNDIX. 
 
 No. 7ii. 
 
 Stdtrinrnt m' Chiim. 
 
 Action for 
 asaault. 
 
 In tlie Ilitili Court of Justice. 
 Division. 
 
 Writ iHHUod loth 
 
 Miu'ch, 18 
 , Plaintiff, 
 
 Between A. H 
 and 
 E. F., Defendant. 
 
 1. The plaintiff is a carrying on business at 
 
 2, On the day of the defendant assiuiltcd the 
 plaintiff and thejjlaintiff was seriously hurt and wounded, and was for iv 
 \ox\\i, time in consequence of his injuries, unable to transact iii^^ business, 
 and incurred expense for nursinj,' and medical attendance. 
 
 2. J Anii'iKlmciit to iiwi't di'l'du't' 'ntl'nt.i 'I'lio defendant pi'cti'iuls that 
 he committed the assault complained of in his own defence; but the facts 
 are that the defendant was ' 'espassin^' on the plaintiff's land, uml refused 
 to leave though recjuested to <lo so. whereupon the plaintiff' laid ins hands 
 on the defendant in order to remove him, using so much force and nu 
 more than was necessary for that purpose. | 
 
 The plaintiff claims $ damages. 
 
 The plaintiff proposes that this action should be tried at Col)ourg. 
 
 Delivered the day of is , by 
 
 X. Y., of Plaintiff's Solicitor. 
 
 No. 77. 
 
 [Title.] 
 Statement of Defence. 
 
 The plaintiff first assaulted the defendant, who thereupon connnitted 
 the alleged assault in his own defence. 
 
 Delivered the day of 
 
 X. Y., of Defendant's Solicitor. 
 
 IS 
 
 ,by 
 
 No. 78. 
 
 (Reply where philntiff doea not introduce into his statement of claim tht 
 alienations necessari/ by way of reply to the defence.) 
 
 [Title.] 
 
 lieply. 
 
 The defendant E. F., pretends that he committed the assault com- 
 plained of in his own defence ; but the facts are that the defendant was 
 trespassing on the plaintiff's land and refused to leave though reiiuested 
 to do so, whereupon the plaintiff laid his hands on the defendant in order 
 to remove him, using so much force and no more than was necessary for 
 that purpose. 
 
 Delivered the day of 18 , by 
 
 X. Y., of Plaintiff's Solicitor. 
 
CSS at 
 
 t'lulaiit iissiiultcd the 
 
 luiilod, iiiul was for ii 
 
 transact his iHisiiiess, 
 
 (lauco. 
 
 ndant proteuiU tliat 
 
 lefcnice ; but tlif facts 
 
 tiff's land, and rffuaed 
 
 daintiff laid ins haiuls 
 
 10 nmeli furci; and no 
 
 tried at Cobourj^. 
 
 IS , by 
 icitor. 
 
 J thereupon committed 
 
 IS , by 
 litor. 
 
 )■ stdtemt'iit of 
 lefeiwi;.) 
 
 rhiim the 
 
 nitted the assault corn- 
 that the defendant was 
 3 leave though retiucsted 
 n the defendant in order 
 i than was necessary for 
 
 18 .by 
 
 No. 79. 
 
 FOiniS— PLEADINGS 
 
 Sliitciiii'iit of Claim. 
 
 In the Hii^h Court of Justice. 
 Division. 
 
 Writ issued 
 
 18 
 
 Jietween A. H., Plaintiff, 
 and 
 Defendants. 
 
 1005 
 
 Actum 
 
 a^niuHt 
 
 Knihvay 
 
 Ciiniimny 
 
 for injuries 
 
 by collision 
 
 caused 
 
 tlirouHli 
 
 iiculincnce. 
 
 a railway from 
 
 1, The defendants are carriers of passenfjers np(Mi 
 Toronto to 
 
 •>. In .January, 1881, the i)laintiff took a ticket from 'i'oronto to 
 and was received by the defendants as a passen^jer to be by them safely 
 carried in a train which started from Toronto for 
 
 3. Owinf^ to the ne(,dif,'ence of tlie defendants in the management of 
 their railway, the train in which the plaintiff was travelling' came into 
 collision with an enfjine, at a short distance from Toronto. 
 
 4. The plaintiff was thrown from his seat by the said collision, and 
 much injured about the head, and luu' his rii;ht arm broken. 
 
 '). Tlic foUoiriiifi jKininnijilix mnij be introduced hi/ nmviidnwut to meet 
 Dcfeiire iiij'ni. The defendants allege that the plaintiff accepted the sum 
 of 8300 in full satisfaction of all cause of action which he mij^ht have on 
 account of the said collision, but the facts are as follows : 
 
 (). A short time after the collision an officer of the defendants procured 
 the plaintiff to accept the said accord and satisfaction by fraudulently 
 representing^ that his injuries were of a temporary iiature, and that if 
 they should afterwards turn out to be more serious than he anticipated, 
 he would still be able to obtain further compensation from the defendants. 
 
 7. The plaintiff, fully believinj^ the said represeiitations, and acting 
 upon the faith thereof, was induced thereby to accept the said accord and 
 satisf'iction, and then accepted the same, subject to the express condition 
 that he should not thereby exclude himself from further compensation 
 from the defendants if his injuries should prove more serious than he 
 then anticipated. 
 
 6. After the acceptance of the said accord and satisfaction, the injuries 
 suffered by the plaintiff in the collision did turn out to be more serious 
 than was anticipated at the time aforesaid, and thereupon the plaintiff 
 commenced the present action.] 
 
 The plaintiff claims f damages. 
 
 The plaintiff proposes that this action should be tried at Toronto. 
 
 Delivered the day of 18 , by 
 
 X. Y., of Plaintiff's Solicitor. 
 
 No. 80. 
 
 [Title.] 
 
 itor. 
 
 Htdtement of Defence. 
 
 1. Shortly after the collision referred to in the statement of claim, one 
 of the officers of the defendants called upon the plaintiff for the purpose 
 
1006 
 
 APrENDIX. 
 
 
 % 
 
 ^ 
 m 
 
 of aBcertalniii},' from him whetlicr ho intended to make any claim ajjainHt 
 the defendants ariHinf^ out of the said colHsion. 
 
 2. At Buch interview the phiiutiff informed the said officer tliiit he did 
 intend to mal<e a chiim aj^ainst tlie defendants arisinf? out of tlie said col. 
 lision ; and it was there and then anree<M)etween the plaintiff mid the 
 said olhcer aetin<,' on hehalf and hy the authority of the defendants, that 
 in consideration that the defendants would pay to the i)hiintiff a sum of 
 |300, he, the plaintiff, would accept such sum from the defendants in full 
 satisfaction and discharf^e of all cause of action which he had or iiii^;lit 
 have against the said defendants on account of the said collision. 
 
 3. Thereupon the said officer, acting on behalf of the defendants, paid 
 to the plaintiff the sum of ^iJOO, and the plaintiff received the same in 
 full discharge of the aforesaid cause of action. 
 
 Delivered the 
 X. Y., of 
 
 day of 
 Defendant's Solicitor. 
 
 18 
 
 kv 
 
 ^5. 
 
 
 iini' 
 
 fiif'' 
 
 No. H\. 
 
 (Reidy where Plaintiff (Iock not introduce into /im statement of chiiiii the 
 allegations necessary lij waij of reply to the Defence.] 
 
 [Title.] 
 
 liejyly. 
 
 1. The defendants allege that the plaintiff accepted the sum of ?800 m 
 full satisfaction of all cause of action which he might have on account of 
 the said collision, but the facts are as follows : 
 
 2. A short time after the collision an officer of the defendants procured 
 the plaintiff to accept the said accord and satisfaction by fraudulently 
 representing that his injuries were of a temporary nature, and tliat if 
 they should afterwards turn out to be more serious than he anticipated, 
 he would still be able to obtain further compensation from the defendants. 
 
 3. The plaintiff fully believing the said representations, and acting 
 upon the faith thereof, was induced thereby to accept the said accord and 
 satisfaction, and then accepted the same, subject to the express condition 
 that he should not thereby exclude himself from further conij)enBatiou 
 from the defendants if his injuries should prove more serious than he 
 thnn anticipated. 
 
 4. After the acceptance of the said accord and satisfaction, the injuries 
 suffered by the plaintiff in the collision did turn out to be more serious 
 than was anticipated at the time aforesaid, and thereupon the plaintiff 
 commenced the present action. 
 
 Delivered the 
 X. Y., of 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 
 
 .by 
 
FORMS— PLEADINGS. 
 
 1007 
 
 Q any claim aj;ainst 
 
 [ ol'licev that he did 
 out of the Haid col- 
 lie plaintiff mid the 
 lie (k'fciulaiits, tluit 
 o jilaintiff a sum of 
 le defendants in full 
 ell lie had or iiiitjUt 
 «ii(l colliHiou, 
 
 tlu! defendants, paid 
 eceived the same in 
 
 18 
 
 . by 
 
 tdtcment of claim the 
 u' Defence] 
 
 tecl the Bum of ^'M in 
 f»ht have on account of 
 
 ;ie defendants iirocured 
 action by fraudulently 
 ary nature, and that if 
 us than he anticiiiated, 
 CD from the def endaiith. 
 3sentations. and acting 
 ;ept the said accord and 
 to the express condition 
 1 further compensation 
 e more serious than he 
 
 satisfaction, the injuries 
 out to be more serious 
 thereupon the plaintitt 
 
 No. S3. 
 
 In the Hif^h Court of Juslico. Laudldnl 
 Division. nndteimut. 
 
 Writ isHiU'd 'li'd Reptcnibcr, 18 
 
 Between A. 15., riaintiff, 
 
 and 
 
 C. 1)., Defendant. 
 
 Stilt ciiii'iit of Claim. 
 
 1. On the day of the plaintiff, by Claim, 
 deed, let to the defendant a bouse and premises, No. H'i Street, 
 
 in the City of Belleville, for a term of '21 years from the 
 
 day of , n,t the yearly rent of f 400 payable quarterly. 
 
 2. By the said deed, the defendant covenanted to keep the said house 
 and premises in ^ojd and tenantable repair. 
 
 3. The said deed also contained a clause of re-entry, entitliiif,' the plain- 
 tiff to re-enter upon the said house and jiremises, in case the rent thereby 
 reserved, whether demanded or not. should bo in arrear for twenty-one 
 days, or in case the defendant should make default in the performance of 
 any covenant upon his part to be performed. 
 
 4. On the , a quarter's rent became due ; and on the 
 
 , another quarter's rent became due. On the 
 , both had been in arrear for twenty-one days, and both are still 
 due, 
 
 5. On the same , the house and premises were not, 
 and are not now, in good or tenantable repair, and it would re((uire the 
 expenditure of a large sum of money to reinstate the same in good and 
 tenantable repair, and the plaintiff's reversion is much depreciated in value. 
 
 The plaintiff claims : — 
 
 1. Possession of the said house and premises. 
 
 2. $ for arrears of rent. 
 
 3. $ damages for the defendant's breach of his covenant to 
 repair. 
 
 4. S for occupation of the house and premises from the 
 
 , to the day of recovering possession. 
 
 The plaintiff proposes that this action should bo tried at Belleville. 
 
 Delivered the dav of 18 , by 
 
 X. Y., of Plaintiff's Solicitor. 
 
 18 
 
 ,by 
 
 No. Hll. 
 
 In the High Court of Justice, 
 
 Division. 
 
 Writ issued 4th .January, 18 
 
 Between A. B., Plaintiff, 
 
 and 
 
 C. D,, Defendant. 
 
 Stdtevient of Claim. 
 
 1. On the day of 
 
 llecovery 
 of laud. 
 
 the defendant a house. No. C2 
 
 the plaintiff let to Landlord 
 Street, in the City of Ottawa, and tenant. 
 
■ ,'{ ."^W 
 
 'f'W^ 
 
 1008 
 
 APPENDIX. 
 
 \ 
 
 
 % 
 
 <k^ 
 
 83% 
 
 |) uses- 
 
 iiH tenant from year to year, at the yearly rent of ftl'iO. [v.iyable iinurterlv, 
 tlie tenancy to coiiinionce on tlie day of 
 
 2. Tlio (U^fciidant took posH(«sion of tlio house and contiuiK'd tenant 
 tlicreof until the day of last, when the tonaiicv 
 
 determined hy a notice duly j^iven. 
 
 H. 'I'hc defenchmt has disro^^arded the notice and still retains 
 sion of the houue. 
 
 4. Aiiii'iiilnii'iit to nii'i't till' roinitcr-r/iiim infra.] (The defendnnt. ('. 1),, 
 sets up in his defence that the ))laintit'f aj^reed to j^ive to the defendant ii 
 new lease, and the i)laintirf, A. JJ., admits the a,'reemeiit alli^i^eil in tlie 
 statement of defence, hut he refuses to f^iant to the dcfendiuit a louse, 
 inasmuch as such agreement provided that the lease should contain a 
 covenant hy the defendant to keep the house in ;,'ood repair ami a jxiwer 
 of re-entry hy the plaintiff upon breach of hucIi covenant and the plaintilT 
 says that the defendant, since tin- ajireement was mad(s has not kept tlie 
 house in f,'ood repair, and the same is now in a dilapidated condition.) 
 
 The plaintiff claims ; — 
 
 1. Possession of the house. 
 
 2. % for mesne profits from the day of 
 The plaintiff proposes that this action should be tried at Ottawa. 
 
 Delivered the 
 X. Y., of 
 
 No. »4. 
 
 day of 
 Plaintiff's Solicitor. 
 
 is , by 
 
 SUitement of De fence and Connter-ehtini. 
 
 In the High Couri, of Justice. 
 Division. 
 
 Between A. B., Plaintiff, 
 
 and 
 
 C. D., Defendant. 
 
 (by original action,) 
 
 The defence and counter-claim of the above C. D. 
 
 Defence. 1. Before the determination of the tenancy mentioned in the statement 
 
 of claim, the plaintiff A. B., by writing dated the day of 
 
 , and signed by him. agreed to grant to the defemlant 
 
 C D., a lease of the liouse mentioned in the statement of claim, at the 
 
 yearly rent of ff4")0, for the term of 21 years, commencing from the 
 
 day of , when the defendant, C. D.'s tenancy from 
 
 year to year determined, and the defendant has since that date been and 
 still is in possession of the house under the said agreement. 
 
 Counter- 2. By way of counter-claim the defendant claims to have the agreement 
 
 claim. specifically performed, and to have a lease granted to him accordingly. 
 
 '^Mm 
 
 Delivered the 
 X. Y., of 
 
 day of 
 Defendant's Solicitor. 
 
 IS ,by 
 
 
jiayalili' iiunrterly, 
 
 I coiitiuucil tcniiut 
 , vs'heii tlu; toiiiiucy 
 
 till retaiuH p uses- 
 
 e defendant. ('. 1)., 
 to the (Icfciiiliint a 
 lent alleged in the 
 (Icfendiuit a leiise, 
 io should ('ontuin a 
 vepair and a powi'i' 
 lint and the phuntil'f 
 (le, h\M not kept the 
 lilted condition,) 
 
 day of 
 led at Ottawa. 
 
 IS , by 
 
 nm. 
 
 oned in the statement 
 divy of 
 :»rant to the defendant 
 meat of daiin. at the 
 lencinfi from the 
 
 C. D.'s tenancy from 
 ice'that date heen and 
 greemeut, 
 
 1 to have the agreement 
 )d to him accordni^ly. 
 
 18 ,by 
 
 Dr. 
 
 FORMS — PLKADINOS. 
 
 1009 
 
 No. HSi. 
 
 Reply where plaiiitij)' iloi'^ not hitrtiducr into liin ntutcment of cldtm the allega- 
 tion* neCi'Hmnj Inj woij of replij to the defence : 
 
 [Title.j 
 
 liepUj. 
 
 The ])laintiff, A. B., admits the a^'reoment st ' 1 'n tl'e defendant, Ueply 
 C. l)."s statiwnent of defence, hut lie refuneH to f^imit to the defr idant a 
 len '0 '.. 'anHe Hiich a^jreemeiit provided that tiie loaao ah I'd contiiii k 
 covenau,; by the defendant to keep the house in good re[)ai' and a power 
 of re-entry by tlio plaintiff upon breach of sucii coviwant and the plain- 
 tiff says tluit the defendant, since the nnikinj^ of the said agreement, has 
 not kept the house in good repair, and the same is now in a dilapidated 
 condition. 
 
 Delivered the day of 18 , by 
 
 X. Y., of Plaintiff's Solicitor. 
 
 No. S«. 
 
 In the High Court of Justice . 
 Division. 
 
 Writ issued 
 
 llecovory 
 of land. 
 
 18 
 
 Between A B., and G. D., Plaintiffs, 
 
 and 
 
 E. L., Defendant. 
 
 Statement of Claim, 
 
 1. K. L., late of Barrie in the County of Simcoe duly executed his last Claim. 
 will, dated the 4th day of April, IS , and thereby devised his lands in 
 
 the County of Simcoo unto and to the use of the plaintiffs and their 
 heirs, upon the trusts therein mentioned for the benefit of his daughtei'o 
 Margaret and Martha, and appoirited the plaintiffs executors thereof. 
 
 2. K. L. died on the iJrd day of January, 18 , and his said will was 
 loroved by the plaintiffs in the proper Surrogate Court on or about the 4th 
 day of February, 18 . 
 
 3. K. L., was at the timo of his death seised in fee of lot No. 1 in the 
 3rd concession of the township of , and lot No. .') in the 4th conces- 
 sion of the township of , both in the County of Simcoe. 
 
 4. The defendant, soon after the death of K.L., entered into possession 
 of the said lots, and has refused to give them up to the plaintiffs. 
 
 The plaintiffs claim : — 
 
 1. Possession of the said 2 lots. 
 
 2. $ for mesne profits of the premises from the death of 
 K. L. till such possession shall be given. 
 
 The plaintiffs propose that this action sjiould be tried at Barrie. 
 
 Delivered the day of 18 , by 
 
 X. Y., of Plaintiffs' Solicitor. 
 
 J.A. 04 
 
 b& 
 
1010 
 
 APPENDIX. 
 
 No. H7. 
 
 Trespass to In the 1-Ii<,'li Court of Justice, 
 land. Division. 
 
 Writ issued .Hrd October, 18 . 
 
 Between A. B., Plaintiff, 
 and 
 E. F., Defendant. 
 
 Statement of Claim. 
 
 Claim. 1, The plaintiff was on the oth INIarch, 18 , and still is the owner and 
 
 occupier of a farm in the Townshi)) of in the County of 
 
 , bein.<; lot No. 4 in the 7th concession of the said 
 Township. 
 
 2. A private road, known as Hif^hfteld Lane, runs through a portion of 
 the plaintiff's farm. It is boujulcd upon both siden by fields of the plain- 
 tiff's and is separated therefrom by a fence and ditch. 
 
 3. For a lonj; time prior to the 5th March, 18 , the defendant had 
 wrongfully claimed to use the said road for his horses, carts and wi'.ijwns 
 on the alleged ground that the same was a public highway, and tlie i)laiii- 
 tiff had frequently warned him that the same was not a pubUc highway, 
 but the plaintiff's private road, and that the tlefendai.t must not .so use it. 
 
 4. On the 5th March, 18 , the defendant came with a cart and horse, 
 and a large number of servants and workmen, and forcibly used the road, 
 and broke down and i-emoved a gate which the plaintiff had caused to be 
 placed across the same. 
 
 5. The defendant and his servants and workmen on the same occasion 
 pulled down and damaged the plaintiff's fence and ditch upon each side 
 of the I'oad, and werit upon the plaintiff's held beyond the fence and 
 ditch, and injured the crops there growing, and dug up and injured the 
 soil of the road ; and in any case the acts mentioned in tliis paragraph 
 were wholly unnecessary for the assertion of the defendant's alleged right 
 to use, or the uner of the said r'vid as ■> highway. 
 
 The plaintiff claims : — 
 
 1. Damages for the wrongs complained of. 
 
 2. An order restraining the defendant from any repetition of any of 
 the acts complained of. 
 
 3. Such other relief as the nature of the case may require. 
 
 The plaintiff proposes that this action should be tried at Woodstock. 
 
 Delivered the dav of 18 , by 
 
 X. Y., of Plaintiff 's Solicitor. 
 
 No. HH. 
 
 [Title.] 
 
 Statement of Defence. 
 
 1. The defendant says that tlie road was and is a public liighway for 
 horses and carriages ; and a few days before the 5th of March, 18 , the 
 plaintiff wrongfully erected the gate across the road for the purpose of 
 
FOlUrS PLEADINGS. 
 
 obstrncting and preventing;, and it did obstruct and prevent the use of 
 the road as a liifjhway. And tlie defendant on tlie said oth March, in , 
 caused the said gate to be removed, in order to enable liini hiwfully to 
 use tlie road by his horses, carts and waggons as a highway. 
 
 2. Tlie defendant denies the allegations of the Cth paragraph of tlie 
 statement of claim, and says that neither he nor any of his workmen or 
 servants did any act, or used any violence, other than was necessary to 
 enable the plaintiff lawfully to use the highway. 
 
 Delivered the day of 18 , by 
 
 X.Y.,of " ■ " ■ 
 
 day of 
 Defendant's Holicitor. 
 
 No. H9. 
 
 Fonit of hemurrcr. 
 
 In the High Court of Justice, 
 Division. 
 
 [Title.] 
 
 The defendant [plaintifT] demurs to the [plaintiff's statement of com- 
 plaint or defendant's statement of defence, or of set-oft', or of counter- 
 claim] [or to so much of the plaintiff's statement of complaint as claims 
 or as alleges as a breach of contract the matters men- 
 tioned in paragraph 7, or an the caxe iiunj be] , and says that the same is 
 bad in law on ihe ground that [here ntati- a tirouml of demurrer], and on 
 other grounds sufficient in law to sustain this demurrer. 
 
 Delivered the 
 X. Y., of 
 
 day of 
 Plaintift-'s Solicitor. 
 
 18 ,by 
 
 1011 
 
 5b. 
 
 y repetition of any of 
 
 No. 90. 
 
 Special Case for the opinion of the Court. 
 
 The following case is stated for the opinion of the Court under an order 
 of the Honorable Mr. Justice dated the day of 18 
 
 made pursuant to Rule 554 (or <ts the cane may he), (here state the material 
 facta nf tliccase hearuuj upon the question of laiv to be ilecided). 
 
 The question {or questions) for the opinion of the Court is (or are) 
 
 First— Whether, etc. 
 
 Second— Whether, etc. 
 
1012 
 
 APPENDIX. 
 
 PART VII. 
 
 PRAECIPES. 
 No. 91. 
 
 .•1 mended SummoiUi. 
 [Title, etc.] 
 Amend in pursuance of order \or flat] dated 
 
 the writ of suniiiions 
 
 in this action by (set out (imeiidiiieiits when required). 
 
 Dated the day of 18 
 
 (Signed) 
 (Address) 
 
 Sohci.or for the 
 
 No. »2. 
 
 Renewed SitmmonK. 
 
 [Title, etc.] 
 
 Required in pursuance of order dated 
 summons in this action, 
 
 Dated the day of 
 
 (Signed) 
 (Address) 
 
 Solicitor for t le 
 
 , a renewed writ of 
 18 . 
 
 No. »3. 
 
 Entry of Appearance. 
 
 [Title, etc.] 
 Enter an appearance for in this action 
 
 Dated the (hiy of 18 
 
 (Signed) 
 (Address) 
 
 The said defendant require {or do not require, as the rase may he) ft 
 statement of claim to be delivered. 
 
 (In ca.^e the defendant winhru to diKpate the amount claimed, and to make 
 tio other defence, the followimj may he added). The defendant disputes the 
 amount claimed by the plaintiff, (or tlie defendant insists that the amount 
 due to the plaintiff is $ only, or the defendant insists that the 
 
 amount due to the plaintiff is, | for principal and $ for 
 
 interest, since the day of etc., and no more,) as the case 
 
 may be. 
 
FORMS — PHiECIPES. 
 
 1013 
 
 No. »4. 
 
 Entry of Appearance in aclidii for land limiting Defence. 
 
 [Title, etc.) 
 
 Enter an appearance for tlie (lefoiiduiit in this action. The said 
 
 defoiulant limits his defence to part only of the property mentioned in 
 the writ of summons, namely, to 
 
 Dated the day of IH 
 
 (Si^'ued) 
 
 (Address) 
 
 The said defendant require a statement of ,jlaim to he 
 
 delivered. 
 
 No. »5. 
 
 Entry of Appeanince, In/ neie defendant. 
 
 [Title, etc.] 
 Enter an appearance for who has been served with an order 
 
 dated the day of 
 
 ings in this action. 
 
 Dated the day of 
 
 (Sif^ned) 
 
 (Address) 
 
 to carry on and prosecute the proceed- 
 18 . 
 
 No. •>«. 
 
 Entry of Appearance, by party xerved with notice, under Rule 3:19. 
 
 [Title, etc.] 
 
 Enter an appearance for to the notice issued in this action on 
 
 the day of 18 , by the defendant under the 
 
 Eulos of the Supreme Court, Rule 8:- ;». 
 
 Dated the day of 18 
 
 (Signed) 
 (Address) 
 The said defendant require a statement of claim to he 
 
 delivered. 
 
 re, as the case may he) a 
 
 No. »7. 
 
 EtUry of Appearance to Counter-claim. 
 [Title, etc.] 
 
 I'hitar an appearance for to the counter-claim of the above-named 
 
 defendant in tliis action. 
 
 Dated the 
 
 day of 
 (Sifined) 
 (Address) 
 
 18 
 
T^^l^f^Pf 
 
 1014 
 
 No. 98. 
 
 APPENDIX. 
 
 Entry for Argument Generally. 
 [Title, etc.] 
 
 Set down for argument the 
 
 Dated the day of 
 
 (Signed) 
 (Address) 
 
 18 
 
 No. 99. 
 
 Entry of Demurrer for Argument. 
 
 [Title, etc.] 
 Enter for argument the demurrer of to the 
 
 in this action. 
 
 Dated the 
 
 day of 
 (Signed) 
 (Address) 
 
 18 
 
 No. too. 
 
 Entry of Special Case. 
 [Title, etc.] 
 
 Set down for argument the special case filed in this action on the 
 day of , 18 ; (or set down tlie dated the day of 
 
 18 ; of Mr. the referee in this 
 
 for hearing as a special case). 
 
 Dated the day of 18 . 
 
 (Signed) 
 (Address) 
 
 No. lOl. 
 
 Search for 
 
 Dated the 
 
 Search. 
 [Title, etc.] 
 
 day of 
 (Signed) 
 (Address) 
 
 Agent for 
 
 18 
 
 Solicitor 
 
in this action. 
 
 ia action on tlie 
 
 2d the day of 
 
 !e in this 
 
 icitor 
 
 FORMS — PRAECIPES. 
 
 No. 1 02. 
 
 Entry of Action for 'I rial. 
 
 [Title, etc.] 
 
 Enter this action for trial. 
 
 Dated the day of 18 
 
 (Signed) 
 (Address) 
 
 1016 
 
 No. 103. 
 
 Covimission to Examine Witnesses. 
 [Title, etc.] 
 
 Required in pursuance of order dated 
 witnesses directed to 
 
 Dated the 
 
 day of 
 (Signed) 
 (Address) 
 
 Solicitor for the 
 
 a commission to examine 
 18 . 
 
 No. 1 04. 
 
 Habeas Corpus ad Testificandum. 
 [Title, etc.] 
 
 itequired in pursuance of order dated a writ of habeas corpus ad 
 
 testilioandum directed to the to bring before 
 
 Dated the day of 18 
 
 (Pigned) 
 (Address) 
 
 Solicitor for the 
 
 No. 1 05. 
 
 Entry of Appeal. 
 [Title, etc.] 
 
 Enter this appeal from the order [or judgment] of 
 action dated the day of hi 
 
 (Signed) 
 (Address) 
 
 in this 
 
 ?^ 
 
'^T^-^irr- 
 
 1016 APPENDIX. 
 
 No. lOO. 
 
 Fieri Facian. 
 
 [Title, etc.] 
 
 Required a writ of fieri facias directed to the sheriff of to levy 
 
 aj^ainst C. D. the sum of f and intorest 
 
 thereon at the rate of $ i)er centum per annum from tlie 
 
 day of [and 8 costs] to 
 
 Judgment [or order] dated day of 
 
 • Taxing master's certificate, dated day of 
 
 Dated the day of 
 
 (Signed) 
 (Address) 
 
 Solicitor for the 'jKirly an u-hoxe lielialf trril Ik to insueA 
 
 No. 107. 
 
 Venditioni F.rponns. 
 
 [Title, etc.] 
 Required a writ of venditioni exponas directed to the sheriff of 
 
 to sell the goods and 
 facias in this action tested 
 
 Dated the 
 
 of C. D., taken under a writ of lieri 
 day of 
 
 day of 18 
 
 (Signed) 
 (Address) • 
 
 Solicitor for tlvf 
 
 No. 108. 
 
 Writ of Sequentration. 
 [Title, etc.] 
 
 Required a writ of sequcst-'ation against C. D. 
 
 at the suit of A. B directed to the sheriff of 
 Order dated dav of 
 
 Dated the 
 
 day of 18 . 
 
 (Signed) 
 (Address) 
 
 (Solicitor for the 
 
 for not 
 
ff of to levy 
 
 iuul interest 
 ler anmiiii from tlie 
 osts' to 
 
 No. I©». 
 
 FOUMS — PRiECIPES. 
 
 Writ of I'osxcstiioii. {Ijdiitls.) 
 
 [Title, etc.] 
 
 ■Required a writ of possession directed to the shci-il'f of 
 deliver possession to A. B. of 
 
 Judt;nient dated day of 
 
 Dated the day of IH . 
 
 (Signed) 
 (Address) 
 
 Solicitor for the 
 
 1017 
 
 to 
 
 ('/»(//' tirit in to inKite.] 
 
 the sheriff of 
 1 luider a writ of fieri 
 day of 
 
 No. IIO. 
 
 10/7 of Ddivenj. (Vluittrh.) 
 [Title, etc.] 
 
 Required a writ of delivery directed to the sheriff of 
 make delivery to A. B. of 
 
 Dated the 
 
 day of 
 
 (Sinned) 
 (Address) 
 
 18 
 
 Solicitor for the 
 
 to 
 
 No. 111. 
 
 Writ of Attachment. 
 [Title, etc.] 
 
 Required in pursuance of order dated 
 nu attachment directed to the sheriff of 
 not delivering to A. B. 
 
 Dated the 
 
 day of 18 
 
 (Signed) 
 (Address) 
 
 Solicitor for the 
 
 day of 
 
 af^ainst C. I), wv 
 
■WTY" 
 
 1018 APPENDIX. 
 
 No. 112. 
 
 Prmcipefor Direction to the Bank referred to in Jhtle 167. 
 
 In the Court of Appeal, 
 
 '"■ 
 In the Hif^h Court of Justice, 
 Division 
 
 (Short style ofcanne.) 
 
 Required a direction for the Bank to rect.ve from 
 
 ^ payable into Court to the credit of this cause 
 
 under dated (or as tite case nunj be.) 
 
 Date 
 
 A. B., 
 
 Defendant's Solicitor. 
 (ur an the ca.'^e maij be.) 
 General order (Chy.) Sch. O. 
 
 No. 11 a. 
 
 Pnecipe for Cheque re/erred to in Rule 176. 
 
 In the Court of Appeal, 
 or 
 In the Hif^h Court of Justice, 
 Division. 
 
 {Short style of cause.) 
 
 Required a cheque for ^ with | interest thereon from 
 
 to (heini) a period, if any, fur which intereat is 
 
 payable under the order or judgment, hut which han not already been taken into 
 account and computed), payable to ; and the follow. nj^ papers 
 
 are produced herewith, [naming the Judgments, orders, reports, etc., shoicing 
 the party'' s right to the cheque), thus : 
 
 Judgment, dated 
 Ordor, dated 
 Report, dated ., etc. 
 
 Date 
 
 A. B., 
 
 Plaintiff's Solicitor. 
 (ur as the case may be.) 
 General order (Chy.) 356, Sch, 
 
FORMS — SUnPffiNAS, ETC. 
 
 1019 
 
 ill Huh' 167. 
 
 PART Ylir. 
 
 le credit of tliib cause 
 (())■ (IS the case imiij be.) 
 
 SUBPCENAS, ETC., FOR EXAMINATION OF WITNESSES. 
 
 endant's Solicitor. 
 (()/• an tlic ('((.s't' may be.) 
 
 39t thereon from 
 n>i,for which intcrpst is 
 if iilreddji lieeii taken into 
 (I the foUowaif^ papers 
 rs, rejMrta, etc., Kiioiciwj 
 
 No. 114. 
 
 Subpivnn ad Te>itiiicand\im {General Form. 
 
 In the High Court of Justice, 
 Division. 
 
 Between 
 
 and 
 
 Plaintiff, 
 Defendant. 
 
 Victoria, by the Grace of God of the United Kingdom of Great Britain 
 and Ireland, Queen, Defendc of the Faith, to f^reeting : We com- 
 
 mand yon to attend before at on day the day 
 
 of 18 , at the hour of in the noon, and so from 
 
 day to day, until the above cause is tried, to give evidence on behalf of 
 the (plaintiff or defendant.) 
 
 Witness, the Honourable 
 day of 18 
 
 President, etc., the 
 
 Plaintiff's Solicitor. 
 (or as the case may bc.\ 
 
 No. 115. 
 
 Siibpaiia Duces Tecum {General Form), 
 
 [Title, etc.] 
 
 Victoria, by the Grace of God, of the United Kingdom of Great Britain 
 and Ireland, Queen, Defender of the Faith, to greeting: We com- 
 
 mand you to attend before at on day the 
 
 day of 18 , at the hour of in the noon, and so from 
 
 day to day, until the above cause is tried, to give evidence on behalf of 
 the and also to bring with yon and produce at the time and place 
 
 aforesaid {specify documents to be produced). 
 
 Witness, the Honourable President, etc., the 
 
 day of 188 . 
 
...ftiir I ■ 
 
 1020 
 
 APPRNDIX. 
 
 % 
 
 C^ 
 
 ^ 
 
 
 
 No. lift, 
 
 Sitbpfoui ad Tcntil'uiUKliiiii at A.ini:en. 
 
 [Title, etc.] 
 
 Victoria, by the Grace of God of the United Kinj^doni of Great Uritaiii 
 and IreUind, Queen, Defender of the Faith, to ^'reetin^; : We coui- 
 
 mand you to attend before our JuHtiueH assij^ned to take the assi/es in and 
 for the county of to be holden iit on day tlio dav 
 
 of 18 , at tile hour of in the noon, and so from day to 
 
 day during,' the said assizes until the ubove cause is tried, to >^ivc evi- 
 dence on behalf of the 
 
 Witness, the Honourable 
 day of 188 . 
 
 President, etc., the 
 
 No. 117. 
 
 SHb})am<i Diu'i'K Tt'cnm at Ah^'izch, 
 [Title, etc.] 
 
 Victoria, by the Grace of God, of the United Kin^^'doin of Greiit Ihitaiu 
 and Ireland, Queen, Defender of the Faith, to yreetint;: \\'e com- 
 
 mand you to att^iud before our Justices assif^ned to take the .'issizes in and 
 for the county of to be holden at on day tlie day 
 
 of 18 , at the hour of in tlie noon, and so from day to 
 
 day durinjj the said assizes, until the above cause is tried, to t^ive evi- 
 dence on behalf of the , and also to brinj^ with yon and produce 
 at the time and place aforesaid (tijn'cifi/ (lonimciitu tn be prodaci'd}. 
 
 Witness, the Honourable President, etc., the 
 
 day of 
 
 No. UH. 
 
 Commission to Examine Witnesses. 
 
 [Title, etc.] 
 
 Victoria, by the Grace of God, of the United Kingdom of Great Britain 
 and Ireland, Queen, Defender of the faith, to of 
 
 commissioner named by and on behalf of the and to 
 
 of a commissioner named by and on behalf of the 
 
 greetin<^: Know ye that we in confidence of your prudence and fidelity 
 have a))pointed you and by these presents give you power and authority 
 to examine on interrogatories and viva voce as hereinafter mentioned 
 witnesses on behalf of the said and reftpectively 
 
 at before you or eitiier of you. — And we command yo.; as follows: 
 
 1. Both the said and the said shall be at liberty to c.Kamino 
 
 on interrogatories, and rira voce on the subject nuitter thereof or arising 
 out of the answers thereto, such witnesses as shall be produced <ni their 
 behalf with liberty to the other party to cross-examine tlie said witnesses 
 on cross interrogatories and rira rare on the subject matter thereof or 
 
FORMS — 8T'DP(i:i;\AS, ETC. 
 
 1021 
 
 (1111 of GiTiit Britftiii 
 ^I'oiaiii^' : \Vi' (■(Illl- 
 ike the assizes in imd 
 (lay tlic (liiy 
 
 , an. I so from day to 
 is tried, to j^ivo uvi- 
 
 , etc.. the 
 
 dom of flroiit lU'itain 
 fireetiiiji : We com- 
 ;ake the assizes in and 
 day the day 
 
 n, p.nd so from day to 
 1 is tried, to t^ive evi- 
 with you and iiroduce 
 ) he pvinUiced). 
 
 , etc., the 
 
 igdom of Great Britain 
 of 
 and to 
 alf of the 
 
 r prudence and fidelity 
 111 power and authority 
 hereinafter mentioned 
 refiiiectively 
 mand ycA; as follows; 
 
 je at liherty to e.xamine 
 atter thereof or arising 
 11 be produced on their 
 mine the said witnesses 
 bjcct matter thereof or 
 
 ftrisiiiK out of tlie answers thereto, the l'. .ty prodncin;^ any witness for 
 examination heinj{ at liberty to reexamine him rini ran' ; and all aueh 
 additional rivn voce (jnestions whetlie'- on examination, ( ross-examimitioii, 
 or re-exiiiniiiation, shall be reduced into writing,', and with the answers 
 thereto shall be returned with the said commission. 
 
 2. Not less than forty -einht hours before the examination of any witness 
 on behalf of either of the said parties, notice in writing,', si^'iied by one of 
 yon, -lie commissioner of the party on whose behalf the witness is to be 
 examined, and statinj^ the time and iilaee of the intended examination 
 and the names of the witnesses to be examined, shall be ^iven to tiie other 
 party by deliverinj^ the notice to [mime iiiKhiildrens at' the jiernDii uniiieil in 
 the (inler for thin piirpotie] (or to a {^rosvn up person there) and shall bo 
 (^iveii also to the commissioner of the otiier party at the iiddr ss aforesaid 
 of such commissioner or to a f^rown up person for him at the said last 
 menti'iiied address, and if the commissioner of that party nej^lect to 
 attend pursuant to the notice, then you, the commissioner of the party on 
 whose behalf the notice is t,'iven, shall be at liberty to proceed with and 
 take the examination of the witness or witnesses e.r parte, and adjourn 
 any ineetin<,' or ineetint^s, or continue the same from day to day until all 
 the witnesses intended to bo examined by virtue of the notice have been 
 examined, without f^ivin^; any further or other notice of the subsequent 
 meeting or meetings. 
 
 3. In the event of any witness on his examination, cross-examination or 
 re-examination producing any book, document, letter, paper, or writing, 
 and refusing for good cause to be stated in his deposition to part with the 
 original thereof, then a copy thereof, or extracts therefrom, certified by 
 the commissioners or commissioner present and a,cting to be a true and 
 correct copy or extract shall be annexed to the witnesses' deposition. 
 
 4. Each witness to be examined under this commission shall be 
 examined on oath, aifirmation, or otherwise in accordance with his 
 religion by or before the commissioners or commissioner present at the 
 exainination. 
 
 ."). If any one or more of the witnesses do not understand the English 
 language (the interrogatories, or cross-interrogatories, and rim rore ques- 
 tions, if any, being previously translated into the language with which he 
 or they is or are conversant), then the examination shall be taken in 
 English through the medium of an interpreter or interpreters to be 
 nominated by the commissioners or commissioner present at the exam- 
 ination, and to be previously sworn according to his or their several 
 religions, by or before the said commissioners or coiiiinissioner truly to 
 interpret the questions to be put to the witness and his answers thereto. 
 
 6. The depositions to be taken under this commission shall be sub- 
 scribed by the witness or witnesses, and by the commissioners or com- 
 missioner who shall have taken the depositions. 
 
 7. The interrogatories, cross-interrogatories, and depositions, together 
 with any documents referred to therein, or certified copies thereof or 
 extracts therefrom, shall be sent to the of the Supreme Court 
 of Judicature on or before the day of inclosed in a cover 
 under the seals or seal of the commissioners or commissioner. 
 
 8. Before you or any of you, in any manner act in the execution hereof 
 you shall severally take the oath hereon indorsed on the Holy Evange- 
 lists or otherwise in such other manner as is sanctioned by the form of 
 your several religions and is considered by you respectively to be binding 
 on your respective consciences. 
 
■fTffP 
 
 1022 
 
 APPENDIX. 
 
 \ 
 
 O 
 * 
 
 \ 
 
 
 % 
 
 •pi 
 
 And wo «ive you or any ono of you authority to adminiHtcr such oath 
 to tlio otliur (jr otliors of yuii. 
 
 WitnoHS, the Honouriiblo I'roHidont, otc, the day of 
 
 ill thu yetirof our Lord one thoUHiiud eij^ht hundrud and 
 
 TliiK writ was iwHUod by 
 
 of 
 
 liUvut for 
 
 of 
 
 aoHcitor for the 
 
 who rcuidu ut 
 
 Commingidiiirii' (hith. 
 
 Yoii Hhall, according,' to the beat of your skill and knowlt'd>,'o, truly and 
 faithfully, and without partiality to luiy or cither of the parties in this 
 caiiHU take the oxaniiiiatioiis and dupoKitioiiH of nil and every witness ar.'l 
 witnesses produced and e.Naniiued by virtue of the coininissioii witiiin 
 written. 80 help you (ioi', 
 
 Clerk'x Oath. 
 
 You shall truly, faithfully, and without partiality to any or either of 
 the parties in this cause, take, write down, transcribe, and engross all 
 and every the questions which shall be exhibited or put to all and every 
 witness and witnesses, and also the depositions of all and every such 
 witness and witnesses produced before and examined by the said com- 
 missioners named in the commission within written, as far forth as you iiru 
 directed and employed by the commission to take, writedown, trauscribu 
 or engross the said (juostions and depositions. 
 
 So help you God. 
 
 ir/<»c.s'.sY,s' Oath. 
 
 You are true answers to make to all such questions as shall be asked 
 yn\. without ^favour or affection to either parly, and therein you shall 
 speuk the truth, the whole truth, and nothinj^ but the truth. So help 
 you God. 
 
 Interpreter'!^ Oath. 
 
 You shall truly and faithfully, and without partiality to any or either 
 of the parties in this cause, and to the best of your ability, interpret and 
 translate the oatli or oaths affirmation or afiirmations which sluill be 
 administered to, and all and every the questions which shall be exhibited 
 or put to all and every witness and witnesses produced before avid exam- 
 ined by the commissioners named in the commission within written, as 
 far forth as you are directed and employed by the said commissioners, 
 to interpret and translate the same out of the English into the laiif,'uaj;e 
 of such witness or witnesses, and also in like manner to interpret and 
 translate the respective depositions taken and made to such questions out 
 of the language of such witness or witnesses into the English language. 
 So help you God. 
 
 Direction of interrogatories, etc., when returned by the commissioners. 
 
 The 
 
 of the Supreme Court of Judicature, 
 Osgoode Hall, 
 
 Toronto. 
 
ulmiiUHtur HUL'li ofttli 
 
 lU (lay of 
 
 iiiul 
 
 ku()\vl('(lt,'r, truly and 
 ul' IIk' iiiutii's ill tluH 
 Uiil every witness iiU'l 
 e coinmlHaiou witliin 
 
 ty to any or either of 
 cribo, and cn^^nisH all 
 jr put to all anil every 
 i)f all and every siicli 
 
 ned by the said com- 
 .UH farfortluis ynuiini 
 writo down, transoribc 
 
 So help you God, 
 
 ?tions afi shall bo asked 
 
 and theriun yon sUsdl 
 
 it tho truth. So help 
 
 •tiality to any or either 
 ir ability, interpret and 
 nations which shall be 
 vbich shall be exhibited 
 duced before and exam- 
 ision within written, as 
 le said commissioners, 
 nKlish into the hui;iuaf?c 
 lannor to interpret and 
 de to such questions out 
 o the Enfilisb lant^uage. 
 
 d by the commissioners, 
 cature, 
 
 FOUMH — OimKIlS. 
 
 No. Il». 
 
 Iltilii'd.i Cor/iiin (III Ti'Ktijicini(liiiii. 
 [Title, t'tc.j 
 
 Victoria, by tho (Jraco of God, of tho TTnited Kin.v'doin of (Iroiit Uritain 
 
 and Iridand, QiU'cn, Defender of the I'ailli, to the keeper of our jirison at] 
 
 We coniinand yon that yon \m\\n , who it in Haid in detained i:i 
 
 our [irison under your ctiHtudy , before at on 
 
 day the day of at the hour of in th(! 
 
 noon, and ho from day to ('ay until the above aetion is tried, to j^'ive 
 
 evidence on behalf of the . And that immediatidy after the said 
 
 Hball have ho j^iven Iuh evidence you Hafely conduct liini to the 
 
 prison from which bo nhall have been brouj^jbt. 
 
 Witness, tho I fonourable President, etc., the day of 
 
 This writ was issued by 
 solicitor for tho who reside at 
 
 PART IX. 
 
 ORDERS. 
 
 No. 1 20. 
 
 Order {General Form.) 
 
 In the Ilif^b Court of Justice, 
 Division, 
 
 [Xiinw of the Jmhje or Master] in Chambers. 
 
 Between 
 
 Plaintiff, 
 
 and 
 
 Defendant. 
 
 Upon hearinf; , and upon roadinj^ the aflidavit of fi'ed 
 
 the day of IH , and 
 
 It is 01 dured and that the costs of this application be 
 
 Dated the day of 18 . 
 
 No. 121 
 
 Order for Serviee out of Jiir indict ion. 
 
 In the Ilif^h Court of Justice, 
 
 Division. 
 
 [Name of the Judije or Master] in Chambers. 
 
 Between 
 
 Plaintiff, 
 and 
 
 Defendant. 
 
 Upon hearing , and upon reading the aflidavit of filed 
 
 tlie day of 18 , and 
 
 1023 
 
 ^ 
 
1024 
 
 APPENDIX. 
 
 It is ordered that the plaintiff be at liberty to issue a writ for 
 
 service out of the jurisdiction against 
 
 A'Ju it is further ordered that the time for appearance to the said writ 
 be within days after the service thereof, and that the costs of this 
 
 application be 
 
 Dated the day of 18 . 
 
 No. 122. 
 
 Order for Substituted Service. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 Between Plaintiff, 
 
 Defendant. 
 
 and 
 
 filed 
 
 Upon hearing , and upon reading the affidavit of 
 
 tho day of 18 , and 
 
 It is ordered that service of a copy of this order, and of a copy of the 
 writ of summons in this action, by sending the same by a prepaid and 
 registered post letter, addressed to the uofendant at , shall be 
 
 good and sufficient service of the writ . 
 
 Dated the 
 
 day of 
 
 18 
 
 x\o. 123. 
 
 Order allowing Service made out of the Jurmiictiou. 
 
 In tlie High Court of Justice, 
 Division. 
 
 [Name of the Judije or Ulanter] in Chambers. 
 Between 
 
 and 
 
 Plaintiff, 
 Defendant. 
 
 filed 
 
 Upon hearing , and upon reading the aflidavit of 
 
 the day of 18 , and 
 
 It is ordered that the service of the writ (or notice of the writ) made 
 upon the defendant as shown by the said affidavit, be allowed as good and 
 sufficient service. 
 
 Dated the 
 
 day of 
 
 18 
 
y to issue a writ for 
 
 No. 124. 
 
 FORMS — ORDERS. 
 
 Order for Renewal of Writ of Summons. 
 
 1025 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Charabers. 
 
 Between 
 
 Plaintiff, 
 and 
 
 Defendant. 
 
 Upon hearing , and upon reading the affidavit of filed 
 
 the day of 18 , and 
 
 It is ordered that the writ in this action be renewed for twelve months 
 from the date of its renewal, pursuant to the Rules of the Supreme Court. 
 
 Dated the 
 
 day of 
 
 18 
 
 No. 135. 
 
 Order for Time. 
 
 In the High Court of Justice, 
 Division. 
 
 ' [Name of the Judge or Master] in Chambers. 
 
 Between 
 
 Plaintiff, 
 and 
 
 Defendant. 
 
 Upon hearing; , and upon reading the affidavit of lilcd 
 
 the day of 18 , and 
 
 It is ordered tluit the shall have time for, etc., and that 
 
 the costs of this application be 
 
 Dated the day of 18 . 
 
 
 Turmliction. 
 
 No. 1I>«. 
 
 Onler under Rule 7,'i9, etc., {final Judgment). 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of tlie Judge or .l/a.sVc/'] in Chambers. 
 
 Between 
 
 Plaintiff, 
 and 
 
 Defendant. 
 
 Upon hearing , and upon reading the attidavit of filed 
 
 '.he day of 18 , and 
 
 It is ordered that the plaintiff may sign final judgment in this action for 
 the amount indorsed on the writ, with interest, if any, and costs to be 
 taxed, and that the costs of this application be 
 
 Dated the day of 18 . 
 
 J.A. M 
 
1026 
 
 APPENDIX. 
 
 , and upon reading the affidavit of 
 18 , and 
 
 fllul 
 
 No. 127. 
 
 Order under Rule 739, etc., {leave to defend unconditionally) 
 
 In the High Court of Justice, 
 Division 
 
 [Name of the Judr/e or Master] in Chambers. 
 
 Between 
 
 Plaintiff, 
 and 
 
 Defendant. 
 Upon hearing 
 the day of 
 
 It is ordered that the defendant be at liberty to defend this action by 
 delivering a statement of defence within days after delivery of 
 
 the plaintiff's statement of claim, and that the costs of this application be 
 
 Dated the day of 18 
 
 No. 128. 
 
 Order under Rule 739, etc., (leave to defend on payment into Court). 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 
 Between 
 
 Plaintiff, 
 and 
 
 Defendant. 
 
 Upon hearing , and upon reading the affidavit of filed 
 
 the day of 18 , and 
 
 It is ordered that if the defendant pay into Court within a week 
 
 from the date of this order the sum of ft , he be at liberty to defend 
 
 this action by delivering a statement of defence within days after 
 
 <lelivery of the plaintiff's statement of claim, but that if that sum be not 
 «o paid the plaintiff be at liberty to sign final judgment for the amount 
 indorsed on the writ of summont , with interest, if any, and costs, and 
 that in either event the costs of tho application be 
 Dated the day of 18 
 
 No. 12». 
 
 Order under Rule 739, etc., {leave to defend as to part on payment into Court, 
 and as to residue unconditionally). 
 
 In the High Court of Justice, 
 
 D i vision . 
 
 [Name oftheJudjie or Mai^ter] in Chambers. 
 Between 
 
 Plaintiff, 
 and 
 
 Defen Hnt. 
 
 Upon hearing , and upon reading the affidavit oi ti'^' 
 
 the day of lf< , and 
 
wonditionaUij). 
 
 FORMS— ORDERS. 
 
 It is ordered that if the defendant pay into Court within a week from 
 the date of this order the sum of ft , he be at liberty to defend this 
 
 action as to the whole of the plaintiff's claim. 
 
 And it is ordered that if that sum be not so paid the plaintiff be at 
 liberty to sign judgment for that sum and the defendant be at liberty to 
 defend this action as to the residue of the plaintiff's claim. 
 
 And it is ordered that in either event the statement of defenct- be 
 delivered within days after delivery of the plaintiff's statement of 
 
 claim, and that the costs of this application be 
 
 Dated the day of 18 . 
 
 1027 
 
 myment into Court). 
 
 No. 130. 
 
 Order to Amend. 
 
 In the High Court of Justice, 
 - Division. 
 
 [Name of the Judge or Master] in Chambers. 
 
 Between 
 
 Plaintiff, 
 
 and 
 
 Defendant. 
 
 Upon liearing , and upon reading the affidavit of filed 
 
 the day of IH , and 
 
 It is ordered that the plaintiff be at liberty to amend the writ of sum- 
 mons in this action by , and that the costs of this application 
 be 
 
 Dated the day of IH . 
 
 ^ 
 
 No. 131. 
 
 Order for iiameH of Partnerm. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Jitdiie or Manter] in Chambers 
 Between 
 
 and 
 
 Plaintiff. 
 Defendant. 
 
 Upon hearing , and upon reading rtie affidavit of filed 
 
 the day of IH , and 
 
 It is ordered that the furnish the with a statement in 
 
 writing, verified by affidavit, setting forth the names of the persons con- 
 stituting the members or co-partners of their firm, pursuant to Itule H17 
 of the Supreme Court, and tlnit tlie costs of tins aiiplication be 
 
 Dated the day of IH . 
 
1028 
 
 No. 132. 
 
 APPENDIX. 
 
 Order for Particulars (General). 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 Between 
 
 and 
 
 Plaintiff, 
 Defendant. 
 
 Upon hearing 
 the day of 
 
 and upon reading the affidavit of filei 
 
 18 , and 
 
 It is ordered that the plaintiff deliver to the defendant an account 
 
 in writing of the particulars of the plaintiff's claim in this action, 
 and that unless such particulars be delivered within days from the 
 
 date of this order all further proceedings be stayed until the delivery 
 thereof, and that the costs of this application be 
 
 Dated the 
 
 day of 
 
 18 
 
 No. 133. 
 
 Order for Particulars (Accident Case). 
 
 In the High Court of Justice, 
 — Division. 
 
 [Name of the Judge or Maater] in Chambers 
 Between 
 
 and 
 
 Plaintiff, 
 Defendant. 
 
 Upon hearing 
 the day of 
 
 and upon reading the affidavit of 
 18 , 
 
 tiled 
 
 It is ordered that the plaintiff deliver to the defendant an account in 
 writing of the particulars of the injuries and expenses mentioned in the 
 statement of claim, together with the time and place of the accident, 
 and the particular acts of negligence complained of, and that unless such 
 particulars be delivered within di'.ys from the date of this order 
 
 all further proceedings in this action be stayed until the delivery thereof, 
 and that the costs of this application be 
 
 Dated the 
 
 day of 
 
 18 
 
FORMS— ORDERS. 
 
 1029 
 
 No. |»4. 
 
 Order to Discharae or Vnri/ Order on Application Idj Third I'arti/. 
 
 In the Hiftli Court of Justice, 
 — Division. 
 
 [Niinie of the Jiidije or Master] in Chambers. 
 
 Between 
 
 Phxintiff, 
 and 
 
 Defendant. 
 
 Upon liearing , and upon reading the atlidavit of filed 
 
 the day of 18 , and 
 
 It is ordered that the order of in this action dated the 
 
 day of 18 be dischar-^ed [or varied by J , and that the 
 
 costs of this application be 
 
 Dated the day of 18 . 
 
 No. |»5. 
 
 Order to Dismiss for icant of Prosecution, 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Jiidfie or Master] in Chambers. 
 
 Between 
 
 Plaintiff, 
 and 
 
 Defendant. 
 
 Upon hearing , and upon reading the aflidavit of filed 
 
 the day of 18 , and 
 
 It is ordered thol this action be, for want of prosecution, dismissed 
 with costs, to be taxed and paid to the defendant by the plaintiff, and 
 that the costs of this application be (costs in the cause) 
 
 Dated the day of 18 . 
 
 
 No. I3C. 
 
 Order for Production. 
 
 In the High Court of Justice, 
 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 
 Between 
 
 Plaintiff, 
 and 
 
 Defendant. 
 Upon hearing 
 
 It is ordered that the do, within ten days after the service of 
 
 this order, make discovery on oath of the documents which are or have 
 been in possession or power relating to any matters in question 
 
 in this action and that the costs of this application be 
 
 Dated the day of 18 . 
 
w 
 
 1080 
 
 No. 187. 
 
 APPENDIX. 
 
 Order to Produce Document! for In pection. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judtje or Master] in Chambers. 
 
 Between 
 
 Plaintiff, 
 and 
 
 Defendant. 
 
 , and upon reading the affidavit of 
 18 , and 
 
 tiled 
 
 Upon hearing 
 the day of 
 
 It is ordered that the do, at all seasonable times, on reasontiblt! 
 
 notice, produce at the office of solicitor, situate at tlie 
 
 following documents, namely and that the be at liberty 
 
 to inspect and peruse the documents so produced and to take copies and 
 abstracts thereof and abstracts therefrom, at expense, and that in 
 
 the meantime all further proceedings be stayed, and that the costs of this- 
 application be 
 
 Dated the day of 
 
 18 
 
 No. 13S. 
 
 In the High Court of Justice, 
 Division. 
 
 Order for Gommmion to Examine WUneeiei. 
 
 [Same of the Judge or Matter] in Chambers. 
 
 Between 
 
 Plaintiff, 
 and 
 
 Defendant. 
 
 Upon hearing 
 the day of 
 
 , and upon reading the affidavit of 
 18 , and 
 
 tiled' 
 
 It is ordered as follows : 
 
 1. A commission may issue directed to of a commissioner 
 named by and on behalf of the and to of a commissioner 
 named by and on behalf of the for the examination upon interro- 
 gatories and viva voce of witnesses on behalf of the said and 
 respectively at aforesaid before the said commissioners. 
 
 2. days previously to the sending out of the said commission, 
 the solicitor of the said shall give to the solicitor of the said 
 
 notice in writing of the mail or other conveyance by whicli the com- 
 mission is to be sent out. 
 
 3. The costs of this order, and of the commission to be issued in pur- 
 suance hereof, and of the interrogatories, cross-interrogatories, and depo 
 sitions to be taken thereunder, together with any document, copy, or 
 extract and the official copies thereof, and -all ;other costs incidental 
 thereto, shall be 
 
 Dated the 
 
 day of 
 
 18 
 
ion. 
 
 bers. 
 
 laintiif, 
 
 )efendant. 
 avit of 
 
 tiled. 
 
 times, on reasonable 
 uate at the 
 
 be at liberty 
 d to take copies and 
 expense, and that in 
 that the costs of this. 
 
 nenes. 
 
 kmberi. 
 
 Plaintiff, 
 
 Defendant, 
 fidavit of 
 
 tiled' 
 
 a commissioner 
 if a commissioner 
 
 mination upon interro- 
 e said and 
 
 jmmissioners. 
 )f the said commission, 
 olicitor of the said 
 mce by whicli the corn- 
 on to be issued in pur- 
 terrogatories, and depo- 
 my document, coi)y, or 
 •other costs iucidentat 
 
 H 
 
 FORMS — ORDERS. 
 
 No. 130. 
 
 Order of Reference tinder S. 101 of the Judicature Act. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge] in Chambers. 
 
 Between 
 
 1031 
 
 and 
 
 Plaintiff, 
 Defendant. 
 
 filed 
 
 Upon hearing . and upon reading the affidavit of 
 
 the day of 18 , and 
 
 It is ordered that the following question arising in this action namely, 
 be referred for inquiry and report to under section 101 of 
 
 the Judicature Act, and that the costs of this application be 
 
 Dated the 
 
 day of 
 
 18 
 
 No. 140. 
 
 Order of Reference under S. 102 of the Judicature Act. 
 
 In the High Court of Justice, 
 Division. 
 
 [Nam* of the Jrdge} in Chambers. 
 
 Between 
 
 Plaintiff, 
 
 and 
 
 Defendant. 
 
 tiled 
 
 Upon hearing , and upon reading the affidavit of 
 
 the day of 18 , and 
 
 It is ordered that the [state whether all or some and, if so, tvhich of the 
 questions are to be tried] in this action be tried by 
 
 And it is ordered that the costs of this application be 
 Dated the day of 18 . 
 
 
 No. 141. 
 
 Order for Examination of Witnesses before Trial. 
 
 In the High Court of Justice, 
 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 
 Between 
 
 Plaintiff, 
 and 
 
 Defendant. 
 
 Upon hearing , and upon reading the affidavit of 
 
 the day of 18 , and 
 
 filed 
 
■" ',-rH.:H*f!' .• {'• 
 
 1032 APPENDIX. 
 
 It is ordered that a witiiesa on behalf of the he exiuninc'l 
 
 tHiui voce (on oath or affirmation) licfoi-e 
 
 or before esijuire, 8])ecial examiner], the 
 
 Holicitor or a<^ent K'vint^ to the solicitor or af,'eiit notice in 
 
 writinf^ of the time and place where the examination is to take place. 
 
 And it is further ordered that the examination so taken be died in tlii' 
 office of , and that an office copy or copies thereof may be 
 
 read and f^'iven in evidence on the trial of this cu'ise, saving,' all just 
 exceptions, without any further proof of the al)Hence of the said witness 
 than the affidavit of the solicitor or agent of the as to his belief, 
 
 and that the costs of this application be 
 
 Dated tin 
 
 day of 
 
 IH 
 
 No. I4S. 
 
 GarniHhce Order {Attachinn Debts), 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Maxter] in Chambers. 
 Between Judgment Creditor, 
 
 and 
 
 Judgment Debtor. 
 
 Garnishee. 
 
 Upon hearing 
 the day of 
 
 and upon reading tlie affidavit of 
 IS , and 
 
 tiled 
 
 It is ordered that all debts owing or accruing due from the above- 
 named garnishee to the above-named judgment debtor be attached to 
 answer a judgment recovered against the said jndtjment debtor by the 
 above-named judgment creditor in the High Court of Justice on the 
 
 day of 18 , for the sum of ft , on which judgment 
 
 the said sum of $ , remains due and unpaid. 
 
 And it is further ordered that the said garnishee attend the 
 in Chambers {or an the cane maij he) on day the day of 
 
 18 . at o'clock in the noon, on an application 
 
 by the sr<id judgment creditor, that the said garnishee pay the debt due 
 from him to the said judgment debtor, or so much thereof as may be 
 sufficient to satisfy the judgment. 
 
 And that the costs of this a])plication be 
 
 Dated the 
 
 day of 
 
 18 
 
be L'xaiiiiiU"! 
 
 mninerj , the 
 
 lit notice ill 
 
 8 to take placL'. 
 
 vkon be liiuil in tlif 
 )ies thereof niiiy be 
 ise, saving; all just 
 of the saiil witncsH 
 as to his belief, 
 
 nbers. 
 
 ent Creditor, 
 
 icnt Debtor. 
 Garnishee. 
 
 davit of 
 
 tik'd 
 
 due from the above- 
 ebtor be attached to 
 ^'ment debtor by the 
 )f Justice on the 
 , on which judgment 
 
 attend the 
 r the day of 
 
 on, on an appUcation 
 hee pay the debt due 
 [i thereof as may be 
 
 No. 14». 
 
 rOHIkJS — OUDKUH. 
 
 Oarninlirc Order (Alitiolut^), 
 
 In the Hifjh Court of Justice, 
 Division. 
 
 [Ntniieof till' .lirlijc or Manti-r] in CiiamberH. 
 Between .huk'nieut Creditor, 
 
 and 
 
 Judgment Debtor. 
 
 (ianiisliee. 
 
 Upon liearin<» , and upon readiiif^ theaflidavit of tiled 
 
 the day of IH .and wliereby it was orck'red 
 
 that all debts owiii^ or accruing due from the above-named <jariiiHhee to 
 the above-named judgment debtor sliould be attached to answer a judj;- 
 ment recovered ajjainst the said jud^jment debtor by the above-named 
 judf^nient creditor in the Hi^jh Court of Justice on the day of 
 
 IH , for the 8)iin of $ , on which judgment the said 
 
 sum of ■} remained due and unpaid. 
 
 It is ordered that the said garnishee ch) forthwith pay tlie said judg- 
 ment creditor the debt due from liim to the said judgment debtor (or so 
 much tiiereof as may be sufficient to satisfy the judgment delit) and tliat 
 in default thereof e.Kecution may issue for tlie same, and that tlie coats of 
 thi= application be 
 
 Dated the 
 
 day of 
 
 18 
 
 No. 144. 
 
 Order on App'ication to fax Solicitor's Hill of Costs. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Jud(je or Muster] in Chambers. 
 
 In the matter of . 
 
 Gentleman, 
 
 One of the Solicitors of the Supreme Court. 
 
 Upon application of 
 It is ordered that the above-named solicitor do deliver to the applicant a 
 bill of his fees, charges and disbursements and that the same wlien so 
 delivered be [or the bill of fees, charges and disbursements delivered to 
 the applicant by the above-named solicitor (or by the above solicitor to 
 (IS the case mail he) be] referred to the to be taxed. 
 
 And it is ordered that the costs of this application be 
 
 Dated the 
 
 day of 
 
 18 
 
 loas 
 
1034 
 
 APPENDIX. 
 
 '••W' 
 
 No. 14S. 
 
 Order to try Actioti in County Court. 
 
 In the High Court of JuBtice. 
 Division. 
 
 [Navte of the Judge or Mniiter] in Chambers 
 Between 
 
 and 
 
 Plaintiif, 
 Defendant. 
 
 Upon hearing 
 this day of 
 
 , and upon reading the affidavit of 
 18 , and 
 
 filed 
 
 It is ordered that this action be tried before the County Court of 
 , and that the costs of this application be 
 
 Dated the 
 
 day of 
 
 18 
 
 No. 140. 
 
 Interpleader Order So. 1. 
 
 In the High Gonrt of Justice. 
 Division. 
 
 [Name of the Judge or Matter] in Chambers. 
 Between 
 
 and 
 
 and between 
 
 and 
 
 Plaintiff, 
 Defendant, 
 Claimant, 
 Respondent. 
 
 Upon hearing 
 the dav of 
 
 , and upon reading the affidavit of 
 18 , and 
 
 tiled 
 
 It is ordered that the claimant be barred, that no action be brought 
 against the above-named [sheriff] , and that the costs of this 
 
 application be 
 
 Dated the 
 
 day of 
 
 18 
 
FORMS — ORDERS. 
 
 1085 
 
 No. 147. 
 
 intiif, 
 
 endHiit. 
 
 lavit of filed 
 
 ounty Court of 
 
 Interpleader Order No, 2. 
 
 In the High Court of Justice. 
 Division. 
 
 [Name of the Jiuhje or Mauler,] in Chambers. 
 
 Between 
 
 Plaintiff, 
 
 and 
 and 
 
 Defendant, 
 
 Claimant. 
 
 Upon hearing; , and upon reading the affidavit of filed 
 
 the day of 18 , and 
 
 It is ordered that the above-named claimant be substituted as defend- 
 ant in this action in lieu of the present defendant, and that the costs of 
 this application be 
 
 Dated the day of 18 . 
 
 No. 148. 
 
 Interpleader Order No. 3. 
 
 In the High Court of Justice. 
 Division. 
 
 [Name of the Judge or Master,] in Chambers. 
 
 Between 
 
 and the said 
 the sheriff of 
 
 and 
 and between 
 execution creditor and 
 
 Plaintiff. 
 
 Defendant, 
 
 Claimant, 
 
 Bespondents. 
 
 filed 
 
 Upon hearing , and upon reading the affidavit of 
 
 the day of 18 , and 
 
 It is ordered that the said sheriff proceed to sell the goods seized by 
 him under the writ of fieri facias issued herein, and pay the net pro- 
 ceeds of the sale, after deducting the expenses thereof {or as otherwise 
 ordered) into Court in this cause, to abide further order herein. 
 
 And it is further ordered that the parties proceed to the trial of an 
 issue in the High Court of Justice, in which the said claimant {or execn • 
 tion debtor) shall be the plaintiff and the said execution creditor {or the 
 claimant) shall be the defendant, and that the question to be tried shall 
 be whether at the time [insert here delivery of the writ to the sheriff or 
 seizure by the sheriff or sale by the sheriff ax the case may require] tlie 
 tjoods seized were the property of the claimant as against the execution 
 creditor. 
 
 And it is further ordered that this issue be prepared and delivered by 
 the plaintiff thei in within from this date, and be returned by 
 
 the defendant therein within days, and be tried at 
 
W'i 
 
 ^ 
 
 X08() Al'I'KNDlX. 
 
 And it in further nrdcrnd timt the (|m'Mtioii of costH ami nil furtliur 
 ciueHtioiiH 1)0 I't'HiTvtMl until iiltor tlu' triiil of tlio Huid isHiu', luid that no 
 action hIuiII bo brouj{lit iijjiiinst the said siieriff for tho Hoi/uro of the mild 
 iijoods. 
 
 Dated the 
 
 No. M«. 
 
 diiv of 
 
 l.S 
 
 InterplcaiUv Order Sn. I. 
 
 In tho IIi;,'h ('ourt of Justice, 
 Division. 
 
 [Ndiiic of the ■Jttihje or Miister\ in Cluviiibora. 
 
 Between 
 
 and the said 
 the sherilT of 
 
 and 
 
 and between 
 
 execution creditor and 
 
 Plaintiff, 
 
 Defendant, 
 
 CHainuvnt. 
 
 Respondents. 
 
 Upon hearinsi 
 the (hiv of 
 
 filed 
 
 , and upon readin>^ the atlidavit of 
 IH , and 
 
 Tt is ordered that upon paynienti of the sum of % into (Jourt by 
 
 the said claimant within from this date, or upon his j^iviuj^ within 
 
 tlie same time security to i,ho satisfaction of 
 
 for the payment of the same amount by the said claimant 
 accordin<{ to the directions of any order to be made lierein, and tipoii 
 payment to the above-named sheriff of the possession money from this 
 date, the said sheriff do withdraw from the possession of tlie floods seized 
 by him under the writ of fieri facias herein. 
 
 And it is farther ordered that unless such payment be made or security 
 f^iven within the time aforesaid the said sheriff proceed to sell the said 
 Koods, and pay the proceeds of the sale, after deluctiuf^ the expenses 
 thereof (or m* othcrwhe ordercil) and the possession money from this date, 
 into Court in the cause, to abide further order herein. 
 
 And it is further ordered that the parties proceed to the trial of an 
 issue in the Hiyh Court of Justice, in which the claimant (or execution 
 creditor) shall be plaintiff and the execution creditor (or claimantl shall 
 be defendant, and that the question to be tried shall lie whether at the 
 time of [insert here the delivery of the writ to the sheriff or the seizure by 
 the sheriff or the sale by the sheriff an the case may require] the jjoods 
 seized were the property of the claimant as against the execution 
 creditor. 
 
 And it is further ordered that this issue be prepared and delivered by 
 the plaintiff therein within from this date, and be returned by the 
 
 defendant therein within days, and be tried at 
 
 And it is further ordered that the question of costs and all further 
 questions be reserved until after the trial of the said issue, and that no 
 action shall be brought against the sheriff for the seizure of the said 
 goods. . 
 
 Dated the day of 18 . 
 
FORMS — ORDERS. 
 
 1037 
 
 (!()Ht« and all fiirtliur 
 lid JKHiic, iind tliiil IK) 
 till! sui/iiru of the saiJ 
 
 No. I50. 
 
 aiuburs. 
 
 I'liiintiff. 
 
 Dfteiidiiiil, 
 
 CJlaimiiut, 
 
 HesiioiidentH. 
 iflidiivit of lileil 
 
 I into Court by 
 
 ' upon his t^iviuj^ witliiu 
 
 rit by the said chiimant 
 miuie herein, and ui)on 
 ession money from tliis 
 ision of the goods seized 
 
 lent be made or security 
 
 ))roceed to sell the said 
 
 Jeluctinj,' the expenses 
 
 1 money from this ilate, 
 
 rein. 
 
 ceed to the trial of an 
 
 claimant {or execution 
 litor (or claimantl sliall 
 ihall be whether at the 
 1 sheriff or the seizure by 
 ■ iii'iy require] the yoods 
 
 against the execution 
 
 epared and delivered by 
 !, and be returned by the 
 •ied at 
 
 )f costs and all further 
 
 ! said issue, and that no 
 
 tl'.e seizure of the said 
 
 Interpleader Order No, 5. 
 
 In the High (lourt of Justice. 
 Division. 
 
 and the said 
 the siieriff of 
 
 [Niime of the Judge or Manter] in Chambers. 
 Between 
 
 and 
 and between 
 execution creditor, and 
 
 Respondents. 
 
 Plaintifr, 
 
 Defendant, 
 
 (Jhiimant, 
 
 Upon hearing 
 the day of 
 
 , and uj)on reading the afitidavit of 
 18 , and 
 
 riled 
 
 It is ordered that upon payment of the sum of % into Court by 
 
 the said claimant, or upon his giving seiuirity to tiie satisfaction of 
 
 for the payment of the same amount by 
 the chiimant according to the directions of any order to bo made herein, 
 the above-named sheriff withdraw from tlie possession of the goods 
 seized by him under the writ of rieri facias issued herein. ■ 
 
 And it is further ordered that iii tlie meantime, and until such payment 
 made or security given, the sheritf continue in the [jossession of the goods, 
 and the claimant pay possession money for the time lie so continues, 
 unless the clainumt desires the goods to be sold by tiie sheriff, in which 
 case the sheriff is to sell them and pay tiie proceeds of tlu; sale, after 
 deducting the expenses thereof {ar hk utlii'nvi.se ordered) and the possession 
 money from this date, into Court in the cause, to abide further order 
 herein. 
 
 And it is further ordered that the parties proceed to the trial of an 
 issue in the High Court of Justice, in which the claimant (or execution 
 creditor) shall be plaintiff and the execution creditor (or claimant) shall be 
 defendant, and that the question to be tried shall be whether at the time 
 of [iiinert here the delivery of the said writ to the sheriff or the seizure by 
 the sheriff or the sale by the sheriff ti.i tlie eaxe may reiiuire\ the goods 
 seized were the property of the clainumt as against the execution 
 creditor. 
 
 And it is f urtlu c ordered that this issue be prepared and delivered by 
 the plaintiff therein within from this dace, and be returned by the 
 
 defendant therein within days, and be tried at 
 
 And it is further ordered that the question of costs and all further 
 questions be reserved until after the trial of the said issue, and that no 
 action shall be brought against the sheriff for the seizure of the said 
 {joods. 
 
 Dated the 
 
 day of 
 
 18 
 
 
 iav of 
 
 18 
 
No. 151. 
 
 APPENDIX. 
 
 Interpleader Order No. 6. 
 
 In the Hi{?h Court of Justice. 
 — — — Division. 
 
 [Name of the Jud<je or Master] in Chambers. 
 
 Between 
 
 Plaintiff, 
 and 
 
 Defendant, 
 and between 
 
 Claimant, 
 and the said execution creditor and 
 
 the sheriff of 
 
 Eespondents. 
 
 The claimant and the execution creditor having requested and con- 
 sented that the merits of the claim made by the claimant be disposed of 
 and determined in a summary manner, now upon hearing and upon 
 
 reading the affidavit of filed tlie day of 13 , and 
 
 It is ordered that 
 
 And that the costs of this application be 
 
 Dated the day of 18 
 
 No. 153. 
 
 Interpleader Order No. 7. 
 
 In the High Court of Justice. 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 Between 
 
 and the said 
 the sheriff of 
 
 and 
 and between 
 execution creditor, and 
 
 Plaintiff, 
 
 Defendant, 
 
 Claimant, 
 
 Respondents. 
 
 Upon hearing 
 the day of 
 
 filed 
 
 , and upon reading the affidavit of 
 18 , and 
 
 It is ordered that the above-named sheriff proceed to sell enough of tl:e 
 goods seized under the writ of fieri facias issued in this action to satisfy 
 the expenses of the said sale, the rent (if any) due, the claim of tin- 
 claimant, and this execution. 
 
 A.\u\ it is further ordered that out of the proceeds of the said sale, (after 
 deducting the expenses thereof, and rent, if any,) the said sheriff pay tc 
 the claimant the amount of his said claim, and to the execution creditor 
 the amount of his execution, and the residue, if any, to the defendant. 
 
 And it is further ordered that no action be brought against the s:ii! 
 sheriff, and that the costs of tliis application be 
 
 Dated the day uf 18 . 
 
ambers. 
 
 Plaintiff, 
 
 Defendant, 
 
 Claimant, 
 
 Respondents. 
 
 ng requested and con- 
 jlaimant be disposed of 
 hearing and upon 
 
 f 13 , and 
 
 j,y of 
 
 18 
 
 FORMS — ORDERS. 
 
 No. 153. 
 
 Order of Replevin. 
 
 In the High Court of Justice, 
 Division. 
 
 Date 
 
 [Name of Judge or Maxter] in Chambers. 
 
 Between A. B., plaintiff, 
 
 and 
 
 C. D., defendant. 
 
 Upon the application of the above-named plaintiff, and upon readinji 
 the affidavit of filed, and upon hearing 
 
 It is ordered that the Sheriff of (here insert the name of County, United 
 Cciinties, District or City), do without delay take the security required by 
 liw and cause to be replevied to the plaintiff, his goods, chattels and per- 
 sonal property following, that is to say : (here net out description of pro- 
 pirtij an in the ujfiduv it filed), which the said plaintiff alleges to be of the 
 value of ^ , and to have been taken and unjustly detained [or 
 
 unjustly detained, as the case may he) by the defendant, C. D., in order 
 that the said plaintiff may have his remedy in that behalf. 
 
 And it is further ordered that the said Sheriff do forthwith, after the 
 execution of this order, make return to {insert here the officer in whose ofice 
 the appearance in the action is to he entered) what he shall have done in the 
 premises, and do also return this order. 
 
 losy 
 
 No. 154. 
 
 Chambers. 
 
 Plaintiff, 
 
 Defendant, 
 
 Claimant, 
 
 Respondents. 
 ! afiidavit of flleil 
 
 iceed to sell enough of tl.e 
 I in this action to satisfy 
 y) due, the claim of the 
 
 ieds of the said sale, (after 
 y,) the said sherif! pay li 
 to the execution creditor 
 ' any, to the defendant, 
 brought against the s:u! 
 e 
 
 18 
 
 Order of Witltermnn. 
 
 In the High Court of Justice. 
 Division. 
 
 Between A. B., plaintiff, 
 
 and 
 
 C. D„ defendant. 
 
 ' it appearing by the return of 
 . the order of replevin made 
 
 Upon the application of the plaintiff, 
 the Sheriff of the of 
 
 herein on the day of , that the goods, chattels and 
 
 personal property mentioned in the said order have been eloigned by the 
 defendant, C. D., out of the bailiwick of the Sheriff of , to 
 
 places to him unknown so that he could not replevy the same to the said 
 plaintiff. 
 
 It is ordered that the said Sheriff do forthwith take in withernam the 
 !,!oods, chattels and personal property of the said defendant, C. D., in 
 his bailiwick, to the value of the goods, chattels and personal property 
 by the said defendant, i). D., before taken, and do forthwith deliver them 
 to the said plaintiff to be kept by him until the said defendant, C. D., 
 delivers the goods, chatteis and personal property last aforesaid to the 
 ifid plaintiff. 
 
 And it is further ordered that if the said plaintiff shall give security to 
 the said Sheriff as provided by law for the prosecution of the plaintiff's 
 claims and for the return of tiie goods, chattels aud property so to be 
 taken in withernam as aforesaid, if tlie return thereof shall be adjudgeii 
 then the said Sheriff do take security witli two sulhcient sureties from the 
 Jiaid defendant, C. D., to answer to the said plaintiff for the taking and 
 mijustly detaining of his goods, chattels and personal property aforesaid. 
 
 ;N 
 
. • lURi t,l«V 
 
 1040 APPENDIX. 
 
 And it is further ordered that the said Sheriff do forthwith make return 
 to (iniiert here the oiliccr in whone office the appeanmce in the action in to he 
 ■tiered), what he shall have done in the premises, and do also return thia 
 order. 
 
 Dated 
 
 No. 155. 
 
 Order for Arrest. 
 
 In the Hif^h Court of Justice, 
 Division. 
 
 {Name of the Judge) in Chamhers. 
 IJetween 
 
 and 
 
 Plaintiff, 
 
 Defendant. 
 
 Upon hearing and upon reading the aflidiivit 
 
 of filed 
 
 It is ordered that the Sheriff of the County (or United Counties vr 
 City) of do forthwith arrest and take, or if already ui 
 
 custody, do detain C. D., the defendant, {or one of the defendants; if he 
 shall be found in tiie said County (or United Counties) and him sufely 
 keep until he shall have given bail in this action to the anionnt of 'J 
 or sliall by other lawful means be discharged from custody. 
 
 And it is further ordered that a copy of this order be strvi^d by the 
 said Sheriff on the said C. D. 
 
 And it is further ordei'ed that the said C. D. do witlr.n ten days after 
 his arrest under this order, cause special bail to be put in for him in this 
 Court and in this action, and the bail piece filed in the office of 
 {naminii the offlre where (ippcofdiice in required to be entered) conditioned 
 that if the defendant be condennied in this action at tht suit of tiie 
 plaintiff, lie will satisfy the costs and condemnation money or in default 
 for his surrender to the Sheriff of the County {or United Counties or 
 City) of {iKiniinn the Connti/ or United Couiitien or Cittj havintj ti Sheriff in 
 which the ()//ict' where the appeurance i» required to he entered, in situate). 
 
 Dated 
 
 No. I5<>. 
 
 Order of Cirtiorari to County Court. 
 
 In the High (^ourt of Justice, 
 Division. 
 
 (Name of Judge) in Chambers. 
 
 [Title, etc. J 
 
 Upon hearing , and upon reading the affidavit of 
 
 It is ordered that the Judge of the County Court of the County of 
 do forthwith scnid to the Registrar of the Division of the 
 
 High Court of Justice at Toronto, the proceedings and papers in a certain 
 action in the said County Court between plaintiff, and 
 
 defendant, with all things touching the same, together with this order, 
 that this Court may furtlier cause to be done thereupon what it shall see 
 fit to be done, and no further proceedings are to be taken in said ('ouuty 
 Court in said action until further order of this Court or a Judge. 
 
FORMS — ORDKRS. 
 
 1041 
 
 
 No. 157. 
 
 Order of Certiorari (General). 
 
 In the High Court of Justice, 
 Division. 
 
 (Name of Judge) in Chambers. 
 [Title, etc.] 
 
 Upon hearing , and upon reading the affidavit of 
 
 It is order :d that do send to the Registrar of the Division 
 
 of tlie High Court of Justice at Toronto, forthwith (or on the day 
 
 of ) the , with all things touching the same, as fully and 
 
 entirely as they remain in together with this order, that this 
 
 Ciuirt may further cause to be done thereupon wluit it shall see fit to be 
 ■done. 
 
 No. 13S. 
 
 Prohibition. 
 
 [Title, etc.J 
 
 It appearing that the said has [entered an action against^ C. D. 
 
 in the said Court, and that the said Court has no jurisdiction in the said 
 '^^cause] or to hear and determine the said [action] by reason that ytate 
 facts xlu'wing want of jurisdiction] . 
 
 It is ordered that the said be and he is hereby prohibited from 
 
 further proceeding in the said [action] in the said Court. 
 
 
 No. 159. 
 
 Order disiuissing Motion {Generallij). 
 
 In the High Court of Justice, 
 Division. 
 
 [Nameof IlicJiidiit' or .y<i'<tcr^ in Chambers 
 Between 
 
 and 
 
 Plaintiff, 
 Defendant. 
 
 Upon hearing , and upon reading the affidavit of filed 
 
 tlie day of IK .and 
 
 It is ordered that the application of be diKmissed. |//' thf 
 
 (lismis.idl it: with ciwin (((/(/), with coats to be taxed and paid by the 
 to the 
 
 Dated the 
 
 day of 
 
 18 
 
 J. A. 
 
 66 
 
1042 
 
 APPENDIX. 
 
 PAET X. 
 
 FORMS OF JUDGMENTS. 
 No. 160. 
 
 Default of Appearance or Defence in ciiae of Liqniihtted Demnnd. 
 
 In the High Court of Justice, 
 Division. 
 
 Between A. B., Plaintiff, 
 
 and 
 
 0. D. and E. F., Defendants. 
 
 The day of 18 . 
 
 The defendants [or the defendant C. D.] not having appeared hereiir 
 [or not having dehvered any statement of defence] , it is this day adjudged 
 that the plaintiff recover against the said defendant $ , and 
 
 costs to be taxed. 
 
 No. 161. 
 
 Judgment in Default of Appearance or Defence where the Demand t» 
 Liquidated (Fixed Costg). 
 
 [Title, etc.] 
 
 The day of , 18 , 
 
 The defendant not having (appeared to the writ of summons 
 
 or delivered any statement of defence or demurrer) it is this day adjudged 
 that the plaintiff recover against the said defendant 8 and 
 
 $ costs. 
 
 No. 162. 
 
 Judgment in Default of Appearance in action for Recovery of Land. 
 
 [Title, etc.] 
 
 The day of , 18 . 
 
 No appearance having been entered to the writ of summons herein, it 
 is this day adjudged that the plaintiff recover possession of the land in 
 the said writ mentioned. 
 

 ted Di'iiunuL 
 
 ig appeared herein 
 istliisday adjudgea 
 , and 
 
 here the Demand h 
 
 the writ of summons 
 
 b is this day adjudged 
 
 ft and 
 
 Recovery of Land. 
 
 of summons herein, it 
 Bsession of the land in 
 
 FORMS —JUDGMENTS. 
 
 No. 163. 
 
 Judgment in Default of Defence hi action for Recovery oj Land. 
 
 [Title, etc.] 
 The day of , 18 . 
 
 No statement of defence having been delivered herein, it is this day 
 adjudged that the plaintiff recover possession of the land in the statement 
 herein mentioned and described as 
 
 No. I04. 
 
 Judgment upon Confession by Defendant of action for recovery of Lund. 
 
 [Title, etc.] 
 
 The day of 18 . 
 
 The defendant C. U. having confessed this action (or havhig confessed 
 this action as to part of the said land, that is to say : Mate the jnirt) it is 
 this day adjudged that the said plaintiff do recover possession of the land 
 in the writ (or statement of claim) mentioned (or of the said part of the 
 said land) with the appurtenances and costs to be taxed. 
 
 No. l«5. 
 
 Judgment in Default of Defence in action for Recovery of Land with Damages. 
 
 [Title, etc.] 
 
 The day of 18 . 
 
 The defendant not having delivered any statement of defence, it is this 
 day adjudged that the plaintiffs recover |possession of the land in the 
 statement of claim herein mentioned, and described as 
 
 , in the County of , and costs to be taxed, 
 
 and it is further adjudged that the plaintiffs recover against the defen- 
 dant damages to be assessed. 
 
 Certiticate for $ , taxed costs, dated the ^^ 
 
 of , 18 . 
 
 No. 16«. 
 
 Interlocutory Judgment in Default of Appearance or Defence where Demand 
 
 Unliquidated. 
 
 [Title, etc.] 
 
 The day of , 18 . 
 
 No appearance having been entered to the writ of summons {or no 
 statement of defence or demurrer having been delivered by the defendant) 
 herein : 
 
 It is this day adjudged that the plaintiff recover against the defendant 
 the value of the goods or damages, or liotli, as the case may he, to be 
 assessed. 
 
 1043 
 
r 
 
 1044 
 
 APPENDIX. 
 
 No. 167. 
 
 Judgment ajter Appearance and Order under Rule 730. 
 [Title, etc.] 
 
 h day of , 18 . 
 
 I . ^fenlant having appeared to the writ of summons herein, and the 
 plaini/ifi hai ing by the order of , dated day of 
 
 18 , obtained leave to sign judgment under the Kule of the Supreme 
 Court, No 'I'My for (recite order), it is tliis day adjudged tliat the plaintiff 
 recov r ,xg: ihe defendant ft and costs to be taxed. 
 
 The abo.i- C' itf ! j,ve been taxed and allowed at f .as appears 
 
 by a Taxing Ollicer's Certificate dated the day of 18 
 
 No. 16S. 
 
 Judgment in Default of Appearance or Defence, after Amtensment of Damages. 
 
 [Title, etc.] 
 
 The day of , 18 . 
 
 No appearance having been entered to the writ of summons [or no 
 statement of defence or demurrer having been delivered by the defendant] 
 herein, and the damages which the pin intiff was entitled to recover having 
 been assessed at $ , as by dated the 18 , 
 
 appears, it is adjudged that the plaintiff recover ^ and costs to be 
 
 taxed. 
 
 No. 160. 
 
 Judgment after Trial by Court without Jury. 
 (No. 1.) 
 [Title, etc.] 
 
 The day of 18 . 
 
 This action having on the day of 18 , been tried 
 
 before and the said on the day of 18 , 
 
 having ordered that judgment be entered for the for $ 
 
 It is this day adjudged that the recover from the 
 
 $ and costs to be taxed. 
 
 The above costs have been taxed and allowed at $ , as appears 
 
 by a Taxing OiEcer's Certificate dated the day of 18 
 
 No. 170- 
 
 Judgment at Trial by Judge iritliout a Jury. 
 
 {No. a.) 
 
 [Title, etc.] 
 
 *Plie day of , 18 . 
 
 This action coming on for trial [the day of andj this 
 
 day, before in the presence of counsel for the plaintiff and 
 

 rs'J. 
 
 1 herein, and the 
 
 day of 
 
 )f the Supreme 
 
 liat the plaintiff 
 
 ixed. 
 
 , as appears 
 IS . 
 
 nent of Damngf.'^ 
 
 summons [or no 
 
 )y the defendant] 
 
 to recover having 
 
 18 , 
 
 and costs to be 
 
 18 , been tried 
 of 18 - 
 
 for» 
 
 om tlie 
 
 , as appears 
 of 18 • 
 
 iirij. 
 
 f and J this 
 
 for the phvintiff and 
 
 FORMS— JUDGMENTS. 
 
 the defendants [or, if some of the defeudants do not appear, for the plaintiff 
 and the defendant C. D., no one appearing for the defendants E. F. and 
 G. H., although they were duly served with notice of trial as by the 
 affidavit of filed the day of appears,] upon hearin}» 
 
 read the pleadings and what was alleged by counsel on both sides, this 
 Court doth declare, etc. 
 
 And this Court doth order and adjudge, etc. 
 
 No. 171. 
 
 Judgment after Trial by a Jury. 
 [Title, etc.] 
 
 The day of , 18 . 
 
 This action having on the 12th ann 13th November, 18 , been tried 
 before the Honourable Mr. Justice and a special jury of the 
 
 ('ounty of , and the jury having found [state find iiic/H an in Judge's 
 
 orofficcr's certificate] , and the said Mr. Justice having ordered 
 
 that judgment be entered for the plaintiff for ft and costs of suit 
 
 [or an the case may be] : Therefore it is adjudged that the plaintiff recover 
 against the defendant $ and ft for his costs of suit [or, 
 
 that the plaintiff j recover nothing against the defendant, and that the 
 defendant recover against the plaintiff $ for his costs of defence, 
 
 or, as the case may be.] 
 
 No. 172. 
 
 Judgment after Trial before Referee. 
 [Title, etc.] 
 
 The day of ,18 . 
 
 The action having on the 27th November, 18 , been tried before X. Y., 
 Esq., an official [or special] referee; and the said X. Y., having found 
 [state substance of referee's certificate] , it is this day adjudged that 
 
 No. 173. 
 
 Judgment after Trial of Questions of Account by Ileferee. 
 [Title, etc.] 
 The day of 18 . ' 
 
 The questions of account in this action having been referred to 
 
 to the 
 do pay the costs of the 
 
 recover against the said 
 
 and he having found that there is due from the 
 sum of I and directed that the 
 
 reference. 
 
 It is this day adjudged that the 
 
 $ and costs to be taxed. 
 
 The above costs have been taxed and allowed at ft 
 a taxing officer's Certificate dated the day of 
 
 the 
 
 , as appears by 
 
 18 . 
 
 1046 
 
1046 APPENDIX. 
 
 No. 174. 
 
 Judgment on Motion Generally. 
 
 [Title, etc.] 
 
 The day of 18 . {Date of order of Court.) 
 
 This action having on the day of 18 come on before 
 
 the Court on motion for judgment on bolialf of the , and tlie Court 
 
 after hearing counsel for the having ordered that {nn in 
 
 order of Court.) 
 
 It is this day adjudged that the recover against the 
 
 the sum of $ and costs to be taxed. 
 
 The above costs have been taxed and allowed at ^ , as appears 
 
 by a taxing officer's Certificate dated the day of 18 
 
 No. 175. 
 
 Judgment in pursuance of order. (For use where leave had been given to sign 
 judgment unless some condition should be complied with.) 
 
 [Title, etc.] 
 
 The day of 18 
 
 Pursuant to the order of dated 18 
 
 ordered and default having been made 
 
 It is this day adjudged that the plaintiff recover against the said defen- 
 dant $ and costs to be taxed. 
 
 The above costs have been taxed and allowed at $ 
 by a taxing officer's Certificate dated the day of 
 
 whereby it was 
 
 as appears 
 18 . 
 
 No. 176. 
 
 Judgment in pursuance of order. (For use where leave /((is been given to sign 
 judgment unless money should he paid into Court.) 
 
 [Title, etc.l 
 
 The day of 18 
 
 Pursuant to the order of dated the day of 
 
 18 , whereby it was ordered that unless S be paid into Court 
 
 by the defendant within a week, the plamtiff be at liberty to sign final 
 judgment for the amount indorsed on the writ of summons witli interest, 
 if any, and costs ; and the said defendant not having paid into Court the 
 said amount of ^ , as conditioned by thf .id order, it is this day 
 
 adjudged that the plaintiff recover against the (r. londant 9 and 
 
 ^ for costs. 
 
 Certificate for costs dait>1 the day of 18 
 
FORMS — JUDGMENTS, 
 
 1047 
 
 No. 1T7. 
 
 Judiiment on Certijicate of Clerk of County Court. 
 
 [Title, etc.] 
 The clay cf 18 
 
 This acti in having been ordered to be tried in tlie County Court of 
 and the Clbik of that Court having certified that the result was 
 
 It is this day adjudged that recover against $ 
 
 costs to be taxed. 
 
 Tlie above costs have been taxed and allowed at S , as appears by 
 
 a taxing officer's Certificate dated the day of 18 
 
 and 
 
 No. 17H. 
 
 JudymcHt for Defendant's Costn on Dincont in nance. 
 
 [Title, etc.] 
 
 The 
 
 18 
 
 day of 
 
 The plaintiff having by a notice in writing dated the day of 
 
 18 , wholly discontinued this action, [or withdrawn his 
 claim in this action for or witlidrawn so much of his claim in this action 
 ■&a relates to — or as the case nuu) he] . 
 
 It is this day adjudged that the defendant recover against the plaintiff 
 costs to be taxed. 
 
 The above costs have been taxed and allowed at $ , as appears by 
 
 a taxing oflicer's certificate dated the day of 18. 
 
 No. I7». 
 
 Judgment for Plaintiy's Costs after Confession of Defence. 
 
 [Titl-:, ate] 
 
 The day of 18 
 
 The defendant in his statement of defence herein having alleged c 
 ground of defence which arose after the commencement of this action, 
 and the plaintiff having on the day of 18 delivered a 
 
 confession of that defence. 
 
 It is this day adjudged that the plaintiff recover against the defendant 
 costs to be taxed. 
 
 Tlie above costs have been taxed and allowed at | , as appears by 
 
 a taxing officer's certificate dated the day of 18 . .. , 
 
% 
 
 
 <k 
 
 1048 
 
 
 PS 
 
 APPENDIX. 
 
 No. 180. 
 
 Judyment for Costs after <nreptaiice of Money paid into Court. 
 [Title, etc.] 
 Tlie day of 18 
 
 The defendant hiivinj; paid into Court in this action the sum of ft 
 in satisfaction of tlie plaintiff's claim, and tlie plaintiff havinj,' by hia- 
 notice dated the day of 18 , accepted tliat sum in satisfaction 
 
 of his entire cause of action, and the plaintiffs costs herein liavint; beiMi 
 taxed, and the defendant not having paid the same within 48 hours aftur 
 the said taxation : 
 
 It is this day adjudj^ed that the plaintiff recover afjainst the defendant 
 costs to be taxed. 
 
 The above costs have been taxed and allowed at ft 
 a Taxing Officer's Certificate dated the day of 
 
 , as appears by 
 IS 
 
 No. 181. 
 
 The 
 
 Judyment on Motion after Trial of' iMue, 
 [Title, etc.] 
 18 
 
 day of 18 . {Date of order of Court.] 
 
 The (Issues or Questions) of fact arisinj^ in this action by the order 
 dated the day of ordered to be tried before having 
 
 on the day of been tried before , and the liavin}^ 
 
 found . Now on motion before the Court for judgment on behalf 
 
 of the , the Court having 
 
 It is this day adjudged that the recover against the the 
 
 sum of ft and costs to be taxed. 
 
 The above costs have been taxed and allowed at ft , as appears by 
 
 a Taxing Officer's Certificate dated the day of 18 
 
 No. 182. 
 
 Form of Judgment o^^ Pnecipe for Sale or Foreclonure with REFEnExcK as to 
 incuMBBANCES, etc, and orders for Immediate Payment and delivery of 
 Possession. 
 
 [Title, etc.] 
 
 1. Upon the application of the Plaintiff under Rule No. 718, of the 
 Rules of the Supreme Court, and upon reading the writ of summons issued 
 in this action, and indorsed under Rule No. '.r!48, [and the statement of 
 claim {if any) and statement of defence where the facts entitling the plaintiff 
 to Judgment are admitted by the defence,} and an affidavit, etc., tiled, etc., 
 [where Judgment is obtained by default ot appearance or defence add and an 
 affidavit, etc., filed, etc., of service of the said writ on the defendant, 
 and no appearonce having been entered in the said action, {or and the 
 defendant having made default in delivering a defence or demurrer) as by 
 the (books in the office of the at ) appears ;] 
 
 2, It is ordered that all necessary inquiries be made, accounts taken^ 
 costs taxed, and proceedings had for redemption or sale {or redemption or 
 foreclosure), and that for these purposes the cause be referred to the 
 Master of this Court at 
 
FORMS — JUDGMENTS. 
 
 1049 
 
 into Court. 
 
 .inst the defendant 
 
 3. (Where Jiidpmeut in for iinmedidte piujmi'itt add, It is further ordered 
 that the defendftnt do forthwith after the making of the 
 Master's report pay to the phiintiff wlnit shall be found due to him for 
 principal money, interest and costs at the date of the said report, and 
 upon payment of the amount due to him {where judfimeiit in fur Kdte add), 
 before the sale hereinbefore directed shall have taken place) that the 
 plaintiff do assifjn and convey the said mortgaged premises, and deliver 
 up all documents relating thereto ) 
 
 4. (Where judgment in fur iiitiiiedic'e poxsensioii add, It is further ordered 
 that the defendant do forthwith deliver to the plaintiff, or to whom ho 
 may appoint, possession of the lands and premises in question, in this 
 cause, or of such part thereof as may be in the possession of the said 
 defendant.) 
 
 No. 1S3. 
 
 Form lit' Judfiment for Forcelosure or .SVi/i", account takkn by KiifiisruAU and 
 Orders for Immediate Payment and Delivery of I'onscsniun. 
 
 I'Title, etc.] 
 
 1. Upon the application of the plaintiff under Rule No. 718, of tlie 
 Rules of the Supreme Court, and upon reading the writ of summons 
 issued in this action, and indorsed under Rule No. 248 [and the state- 
 ment of claim (if any) and statement of defence where the facts- 
 entittina ttie plaintiff to Jadyment are admitted by the defence] and an affi- 
 davit of, etc., filed, etc., [where .T'ldyment in obtained by defanlt of appearance 
 Of defence add and an affidavit of, etc., filed, etc., of service of the said 
 writ on the defendant, and no appearance having been entered in the 
 said action, (or and the defendant having made default in delivering a- 
 defence or demurrer) as by the (books in the office of the at ) 
 appears ;] 
 
 2. This Court finds that the subsequent interest at the rate of 
 
 per centum per annum on the sum of principal money secured 
 
 by the indenture of mortgage in the pleadings mentioned, up to the 
 day of next, being the time appointed for payment as hereinafter 
 
 mentioned, amounts to and that the costs of the plaintiff 
 
 amount to which said subsequent interest and costs being 
 
 added to the sum of claimed by the indorsement on the writ ser' ed 
 
 on the defendant make together the sum of 
 
 'A. .\nd upon the said defendant paying the said sum of into the 
 
 bank at the between the hours of ten o'clock in the 
 
 forenoon and one o'clock in the afternoon of the day of next, to 
 
 the joint credit of the plaintiff and tlie Registrar [where order for payment 
 urauted insert, or in case the plaintiff shall Iwliere jndyinent in for nale add, 
 before the sale hereinafter directed shall have taken place) recover the 
 amount due to him under the order for payment hereinafter contained] ; 
 it is ordered that the said plaintiff do assign and convey the mortgaged 
 premises, and deliver up all documents relating thereto; 
 
 4. But in default of the said defendant making such payment by the 
 time aforesaid, it is ordered (where Judament in for forerlonure, after, "it is 
 ordered," say " that the said defendant do stand absolutely debarred and 
 foreclosed of and from all equity of redemption in and to the said prem- 
 
;:i 
 
 r; 
 
 
 1050 APPENDIX, 
 
 iHen; " wlieir jndiiment in for mJe, then after the irordM "it is ordered," Km/ 
 "that tho Hivid [jroininus bo hoKI, with tho iipprobiition of the Master of 
 thiw t!ourt at ). 
 
 It. (If Jiiihimi'iit in far fori'dosiire itmil thin nerlinit.) And it Ih orilcicil 
 that tho purchaHers do pay their piuc'lia' o money into Cloiirt, to tiieci'edit 
 of this caUHe, and tliat tiio same when so paid in ))e iii)))liid in paynicntof 
 what has boon fonnd due to tlie said plaintiff toj,'etlier with snhHmjucnt 
 interest and subsecpient costs, to he comi)utcd and taxed by the Hiiiil 
 Master, and that tlie balance do abide the further order of the ('oiirt. 
 
 6. {U'hi'i-e /iKlfiment is for imniedidtc ]M)jment ntUl :) It is further ordoreJ 
 that the defeiubmt do forthwitli pay to tlie plaintiff the sum of 
 
 beiufi the amount due lo the ))laiiititT at the date hereof for prin- 
 cipal money, interest and costs. 
 
 7. [Where judiimcnt in for iiiimeiliale jxinnennion aild :) And ' 
 ordered that the defendant do forthwith deliver to the plai 
 whom he may appoint, possession of the mortga^jed preniis 
 part thereof as nuiy be in the possession of the said defendant 
 
 fiu-tlitr 
 . or to 
 .' such 
 
 No. IM4. 
 
 Form ofJudi/mentfor Redemption, insited by a Local Munter. 
 [Title, etc.] 
 
 1. Upon the api)lication of the phiintiff, under liule No. 718, of tlie 
 Rules of the Supreme Court, and upon reading the writ of summons issued 
 in this action, [and tlie statement claim {ifani/) and statement of defence 
 where the f net n entitlinri the plaintiff to Juihinient are admitted laj the d( fence,. 
 and an affidavit of, etc., filed, etc,, \irhere .lud<imeut in obtained In/ difiiili 
 of appearance or defence add and an aflidavit of, etc., filed, etc., of service 
 of the said writ on the dofeiulant, and no appearance having been entered 
 in the said action, (or and the defendant having nuide default in deliver- 
 ing a defence or demurrer) as by the (books in the office of the 
 
 at ) appears ;] 
 
 2. It is ordered that all necessary incjuiries be made, accounts taken, 
 costs taxed, and proceedings had for the redemption of the premises in 
 question, and that for this purpose the cause be referred to the I^Iaster 
 at 
 
 3. And it is ordered that upon the plaintiff paying to the defendant 
 will , shall be found due to him, or in case .nothing shall be found due to 
 the defendant then forthwith after the confirmation of tlie said IMastevV 
 report, that the defendant do reconvey the said mortgaged premises, iiinl 
 deliver up all documents relating thereto. 
 
 4. It is furtlier ordered that in case the plaintiff shall make default in 
 payment as aforesaid of what may bo found due to the defendant that 
 the plaintiff's action do stand dismissed out of this Court, with costs to 
 be paid by the plaintiff to the defendant forthwitli after taxation 
 thereof. 
 
 '^. It is further ordered that in case nothing shall be found dne from 
 the plaintiff to the defendant that the defendant do pay the plaintiff 
 his costs of this suit forthwith after taxation thereof, and in case any 
 balance shall bo found due from the defendant to the plaintiff that the 
 defendant do pay such balance to the plaintiff forthwith after the cnn- 
 firmation of the Master's report. 
 
it is ordered," «ui/ 
 iou of the Master of 
 
 Ami it is ordiTwl 
 ,() Court, to the credit 
 H)1)1ki1 ill iiaynu'Utof 
 thor with Hiit)swiuciit 
 1 taxed by tlie said 
 (lor of tlic ('oiirt. 
 
 It in furtliur ordered 
 > plaiiitilf tlif KUiii of 
 
 late lioreof tor iiriii- 
 
 ,1 :) And •■ 
 
 fiirthtr 
 
 Dtlie phii 
 
 . or to 
 
 ))rL'iiiis 
 
 ..' BUcll 
 
 (iofuiidant 
 
 . 
 
 a Locol Ma'<trr. 
 
 r Rule No. 718, of the 
 writ of summons issued 
 .1(1 statement of defence 
 (ulmitti'tl hij the difi'iice,: 
 ,,t ;« nhtdiiu'd h\j iUyitIt 
 tc, tiled, etc., of service 
 nee havinji been entered 
 nnidc default in dehver- 
 oflice of the 
 
 ' made, accounts taken, 
 i)tion of the premises ui 
 ie referred to tlie Master 
 
 )avinj^ to the defendant 
 iit{ bhall be found due to 
 itlon of the said INIasterV 
 mortgaged premises, ami 
 
 iff shall make default ill 
 
 e to the defendant that 
 
 this Court, with costs to 
 
 forthwith after taxation 
 
 shall be found due from 
 
 int do pav the plamtitt 
 
 thereof, and in case aiiv 
 
 to the plaintiff that the 
 
 forthwith after the con 
 
 FO IIM S — ,1 U 1 )OMENT S . 
 
 No. I M.I. 
 
 Funii n/Jnd(iiiirnt far .{ilmintHtraUiui hi/ <i l.nrnl Muxtrv. 
 
 1. Upon tlio ai)plicatioii of the ahovo-miined phiiiiliff m tlie presence 
 of tlie sdlicitor for tlie defendant lor no one api)eariiig for tlie defendant 
 ftltlioiigh duly notitiiMl as by affidavit filed appears, | and iijioii hearing 
 read tlie alhdavits ami papers filed, and what was alleged by the solicitor 
 for tlie applicant I'r all parties, . 
 
 2, It is ordered tliat all necossary inquiries be made, accounts taken, 
 coats tax(Ml and proceedings had for the iidinmistratioii and final wnidiiii; 
 i.p of tlie personal [and real estiiU; of and f i t he adjiistiiieiit ui 
 the rights of all parties interested therein, bv tiie \i;ister of this Cnmi 
 at 
 
 ii. And it is ordered that all balances which may be found due from 
 the plaintiff or defendant >jr any or either of them] to the said estate 
 be, forthwith after the same shall have been ascertaine(l as aforesaid, paid 
 into (!ourt to the credit of this cause, snlijoct to the further order (jf 
 the Court. 
 
 4. And it is ordered that such personal and real estate, or such parts 
 thereof as the said Master may liereafter direct, bo sold, as the said 
 Master may direct, and tliat the purchasers do pay tlieir purchase money 
 into Court to the credit of this cause, subject to the order of the Court. 
 
 '). It is further ordered that the Master do execute conveyances for any 
 infant parties who by reason of their tender years are unable to execute 
 the Banie. 
 
 No. iHii. 
 
 Form of Jiuhjment for Partition or Sule Inj Loral Maxtcr. 
 
 \. Upon the application of the above-named plaintiff in the presence 
 of the solicitor for the defendant or no one ajipearing for the defendant 
 althounh duly notified as by affidavit filed appears] and upon hearing read 
 the aftidavits and papers tiled, and what was alleged by the solicitor for 
 [the applicant or all parties] . 
 
 2. It is ordered that all necessary imjuiries be made, accounts taken, 
 costs taxed and proceedings had for the partition or sale of the lands and 
 premises in the said affidavits mentioned, and for the adjustment of the 
 rights of all parties interested therein, or for a partition of part and sale 
 of the remainder of the said lanrls as nniy bo most for the interest of the 
 parties entitled to shar' f'^vein [bij the Mastrr of thin Court at 
 
 3. And it is further ordered that the said lands, or such part thereof as 
 the said jNIaster shall think fit, bo sold, with the approbation of the said 
 Master, freed from the claims of such of the incumbrancers thereon (if 
 any) wliose claims were created by ])arties entitled to the said lands 
 before the death of tlie said testator \ or. intestate] , as shall have consented 
 to such sale, and subject to the claims of such of them as shall not have 
 consented [and freed also from the dower of «.< tlic (V(.<i' mail he\. 
 and that the said Master do execute the conveyances on 
 behalf of such of the infant parties as, by reason of their tender years, 
 are unable to execute the same, and that the ])urchasers do [lay their 
 purchase money into (!oui't to tlie credit of this cause, subject to the 
 order of the Coiirt. 
 
 1051 
 
 Ss^. 
 
 yfilli 
 
1052 APPENDIX. 
 
 4. And it is further ordered that, in the event of a part'tion of the 
 whole of the said lands, or in the event of a partition of a part and the 
 proceeds of the sale of the remainder being insufficient to pay the costs in 
 full, the costs, or so much thereof as remains unpaid, be borne and paiVl 
 by the said parties according to their shares and interests in the said 
 lauds [if there heavy infant parties iiiterented in the estate add] and Uiat 
 the proportion of the said costs payable by the infant parties respectivelv 
 be, and the same is hereby declared to be, a lien on their respective 
 shares, and that the plaintiff do pay the guardian of tlie infant defen- 
 dants his costs of this suit and that the same be added to his own costs. 
 
 No. 1ST. 
 
 Form of Jiiilfiinent or Order for Adiiiini!<tration Aecountt:. 
 
 This Court doth order that the followini^ accounts and inquiries be 
 taken and made by the Master of the Supreme Court of Judicature at 
 , that is to say : 
 
 1. An account of the personal estate of A. B., deceased, tlie testator in 
 the pleadings mentioned, come to the hands of, etc., 
 
 2. An account of the said testator's debts. 
 
 8. An account of the said testators's funeral expenses. 
 4. An account of the said testator's le.s^acies. 
 
 ;>. An enquiry, what parts, if any, of the said testator's personal estate 
 are outstanding or undisposed of. 
 
 (If ordered). 
 
 And it is ordered that the following further accounts and in(iuirie8 be 
 taken and made, that is to say : 
 
 6. An incjuiry what real estate the said testator was seised of, or entitled 
 to, at the time of his death. 
 
 7. An inquiry what incumbrances affect the said testator's real estate. 
 
 H An account of the rents and profits of the said testator's real estate 
 received by, etc. 
 
 (If Sale ordered). 
 
 i(. An account what is due to such of the incumbrancers as shall con- 
 sent to the sale hereinafter dii'ected in respect of their incumbrances, 
 
 10, An inquiry of what are the priorities of such last mentioned incum- 
 brances. 
 
 And it is ordered that the testator's real estate be sold, witli the appro- 
 bation of — . 
 
 And it is ordered that further directions and costs be reserved, until 
 after the said Master shall have made his report. 
 
, of a part- lion of the 
 ition of a part and the 
 lent to pay the costs in 
 aid, be borne and pni'l 
 I interests in the said 
 he estate add] and ^hat 
 ^nt parties respectively 
 en on their respective 
 m of the infant defen- 
 dded to his own costs. 
 
 FORMS— WRITS OF EXECUTION, ETC. 
 
 1053 
 
 (ition Accduntx. 
 
 :ounts and inquiries be 
 Conrt of Judicature at 
 
 leceased, tiie testator in 
 ;tc., 
 
 ipenses. 
 
 testator's personal estate 
 
 ccounts and inquiries be 
 ,r was seised of, or entitled 
 
 said testator's real estate. 
 said testator' s real estate 
 
 Mimbrancers as shall con- 
 of their incambrances. 
 uch last mentioned incum- 
 
 ate be sold, with the appro- 
 
 nd costs be reserved, until 
 jrt. 
 
 PART XL 
 
 No. IHH. 
 
 WRITS OF EXECUTION, Era. 
 
 IVrit of Fieri Facias. 
 
 In the High Court of Justice. 
 Division. 
 
 Between A. B., Plai-.itiff, 
 
 and 
 
 C. D. and others, Def'judants. 
 
 Victoria, by the grace of God, of the Unil ed Kingdom of Great Britain 
 and Ireland, Queen, Defender of the Faith. 
 
 To the sheriff of greeting. 
 
 We command you that of the goods and chattels (or lands and tene- 
 ments) of C. D., in your bailiwick you cause to be made the sum of 
 S and also interest thereon from the day of 
 
 [I>(iij of the Jud(jment or order, or day on which money 
 directed to he paid, or day from which interest is directed by the order to run, 
 as the case may he,] which said sum of money and interest were lately 
 before the Justices of our High Court of Justice in a certain action [or 
 certain actions, as the case may [he] wherein A. B. is plaintiff, and C. D. 
 and others are defendants [or in a certain matter there depending inti- 
 tuled "In the matterof E. V.,"ns the cose may be] by a judgment [or order 
 (IS the case may he] of our said Court, bearing date the day of 
 
 adjudged [or ordered, as the case may lie] to be paid by the said 
 C, D. to A. B., together with certain costs in the said judgment [or 
 order as the case may be] mentioned, and wliicli costs have been taxed and 
 allowea ^by one of the taxing masters of our said Court) at the sum of 
 ? as appears by the certificate of the said taxing master, dated 
 
 the day . And that of tlie goods and 
 
 chattels {or lands or tenements) of tlie said C. D. in your bailiwick, you 
 further cause to be made the said sum of ? [costs] togetlier with 
 
 interest thereon from the day of , (//.■(■ date of 
 
 the certificate of taxation. The writ must be so moulded as to follow the sub- 
 stance of the judgment or order) and that you have tliat money and 
 interest before our Justices aforesaid at Toronto innnediateiy after 
 the execution hereof, ((>'•, in the case of hnids and tenements, immediately 
 after the expiration of twelve months from the day of your receipt 
 hereof) to be paid to the said A. B. in pursuance of the said judgment fr 
 order as the case may he] . And in what manner you shall have executed 
 this our writ make appear to our Justices aforesaid at Toronto immedi- 
 ately after the execution thereof. And have there then this writ. 
 
 Witness, the Honourable 
 The dav of 
 
 Px'esident, etc. 
 
 IS 
 
1054 
 
 No. LS!). 
 
 Victoria, etc. 
 
 APPENDIX. 
 
 Fieri Facias on Order for Conts. 
 
 [Title, etc. 
 
 To the sheriff of •,'reeting. 
 
 We command you tliat of tlie floods and chattels of in your 
 
 bailiwick you cause to be made the sum of for certain costs which 
 
 by an order of our Hii;h Court of Justice dated the day of 
 
 18 , wei'e ordered to be paid by the said to and which 
 
 have been taxed and allowed at the said sum, and interest on the said 
 sum at the rate of (i per centum per annum from the day of 
 
 18 , and that you have the said sum and interest before the 
 Justices of our High Court 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 us immediately alter 
 the execution hereof. And have there then this writ. 
 
 Witness, etc., 
 The day of 
 
 IH 
 
 Iiulomement.i. 
 
 Levy $ and ^ for costs of execution, etc., and also 
 
 interest on ? at per centum per annum from the day 
 
 of 18 , until payment ; besides sheriff's poundage, officer's fees, 
 
 costs of levying, and all other legal incidertHl expenses. 
 
 This writ was issued by 
 of 
 
 agent for 
 of 
 solicitor for the 
 
 The 
 
 IS a 
 
 and resides 
 
 at 
 
 in your bailiwick 
 
 No. I»0. 
 
 H rit of Venditioni Exponas. 
 
 [Title, etc.] 
 
 Victoria, etc. 
 
 To the sheriff of greeting. 
 
 Whereas by our writ we lately commanded you that of the goods and 
 chattels {mahiny the necexnary variations of this form throughout in the ca>e 
 of lands and tenementu) of C. D. [here recite the fieri facias to the ewlj. And 
 on the day of you returned to our Justices in the 
 
 Division of our High Court of Justice aforesaid, that by virtue of the 
 said writ to you directed you had taken goods and chattels of the said 
 C. D. to the value of the money and interest aforesaid, which said goods 
 and chattels remained in your hands unsold for want of buyers. There- 
 fore, we being desirous that the said A. B. should be satisfied his money 
 and interest aforesaid, command you that you expose to sale Jind sell, ur 
 
FORMS —WRITS OF EXECUTION, ETC. 
 
 1055 
 
 la of in yonr 
 
 for certain costs which 
 3 day of 
 
 " to "■"'i which 
 
 d interest on the said 
 the day of 
 
 md interest before the 
 tely after the execution 
 id in what manner you 
 o us immediately after 
 vrit. 
 
 execution, etc., and also 
 1 from the /ay 
 
 8 poundage, officer's fees, 
 penses. 
 
 laa. 
 
 vou that of the tjoods and 
 form throughoHt in the m 
 fieri facias to the end,. A"** 
 our Justices in the 
 aid, thatby virueoft 
 
 , and chattels of the ma 
 Aforesaid, which said gc«as 
 ar want of buyers. Ihere 
 ould be satisfied his mone) 
 
 u expose to sale :nid sell, ut 
 
 cause to be sold, the goods and cliatteU of the said C. D., by you in form 
 aforesaid taken, and every part thereof, for the best price that can begot- 
 ten for the same, and have the money arising from such sale before our 
 Justices aforesaid, at immediately after the execution hereof, to 
 
 be paid to the said A. B. And have there then this writ. 
 
 Witness, etc., , the day of 18 
 
 No. 191. 
 
 Writ of I'ossi'ssioii. 
 [Title, etc.J 
 
 Victoria, etc., to the sheriff of , greeting. 
 
 Whereas lately in our High Court of Justice, by a judgment of the 
 Division of the same Court [A. B. recovered] or [E. F. was 
 ordered to deliver to A. B.] possession of all that with the 
 
 appurtenances in your bailiwick : Therefore, we command you that you 
 enter the same, and without <lelay cause tlie said A. B. to have possession 
 of the said land and premises with the appurtenances, and that you 
 defend and keep him and his assigns in peaceable and quiet possession 
 when and as often as any interruption may or siiall, from time to time, 
 be given or offered to them or any of them. Witness, etc. 
 
 No. 1«)S. 
 
 IVrit of Delivery. 
 
 [Title, etc.] 
 
 Victoria, etc., to the sheriff of greeting. 
 
 We command you, that without delay you cause the following chattels, 
 that is to say [here enumerate the chattels recovered by the judgment for the 
 return of which execution has been ordered to issue] , to be returned to A. B. 
 which the said A. B. lately in our recovered against C. D. [or 
 
 C. D. was ordered to deliver to the said A. B.] in an action in the 
 Division of our said Court.* And we further command you, that if the 
 said chattels cannot be found in your bailiwick, you distrain the said 
 C. D. -by all his lands and chattels in your bailiwick, so that neither the 
 said C. D. nor any one for him do lay hands on the same until the said 
 C. D. render the said A. B. the said chattels ; and in what manner you 
 shall have executed tnis our writ make appear to the Justices of the 
 
 Division of our High Court of Justice at Toronto, immediately after 
 the execution hereof, and have you tiiere then this writ. Witness, etc. 
 
 No. Itt3. 
 
 The Like, but instead of a Distress unt'l the Chattel is returned, commanding 
 the Sheriff' to levy on the Defendant's goods the assessed Value of it. 
 
 [Proceed as in the preceding form until the*, and then thus .-J 
 
 And we fui Uier command you that if the said chattels cannot be found 
 
 *^' 
 
 in 
 
 your bailiwick, of the goods and chattels of the said C. I), in your 
 
1056 APPENDIX. 
 
 bailiwick you cause to be mude $ [the annesscd value of the rlmttels.] 
 
 and in what manner you sliall have executed this our writ make appear 
 to the Judges of the Division of our Higli Court of Justice at 
 
 Toronto, immediately after tha execution hereof, and have you there then 
 this writ. Witness, etc. 
 
 No. 194. 
 
 Writ of Attachment. 
 
 [Title, etc.] 
 Victoria, etc., to the sheriff of , greetinj^ : 
 
 We command you to attach C. D. so as to have him before us in the 
 Division of our High Court of Justice, there to answer to ua, 
 as well touching a contempt which he it is alleged hath committed aiiaiust 
 us, as also such other matters as shall be then and there laid to liiscluir;,'e, 
 and further to perform and abide such order as our said Court slmll make 
 in this behalf, and hereof fail not, and bring this writ with you. Witness, 
 etc. 
 
 No. 105. 
 
 Writ of Capias ad Satisfaciendum on a Judgment for Plaint ii)'. 
 
 To the sheriff of, etc. 
 
 We command you that you take C. D. if he shall be found in your 
 bailiwick, and him safely keep so that you may have his body before our 
 Justices of our High Court of Justice Division, at Toronto. 
 
 immediately after the execution hereof, to satisfy ,* {the mnomit 
 
 of all moneys recovered by the judgment) which the said A. B. lately in our 
 High Court of Justice Division, recovered against the siiid C. D. 
 
 for his damages {or debt and damages, or otherwise according to th, .ormiif 
 actio7i), whereof the said C. D, is convicted, and have you then tli«ire this 
 writ. WitiiCBB, etc., {as in usual form). 
 
 No. 1»6. 
 
 IVrit of Capias ad Satisfaciendum on an order for Payment of Money. 
 
 Victoria, etc., (same as in form No, 19"), to the*) which lately in our 
 High Court of Justice ( Division! )-y an 
 
 order of our said Court {or by an order of the Honourable . (one 
 
 of the Justices of our said Higli Court of Justice) dated the day of 
 
 18 , were ordered to be paid by the said C. D. to A. B., and 
 have you then there this writ. Witness, etc. 
 
 No. 1»T. 
 
 Writ of Capias ad Satisfaciendum on an order for Payment of 
 Money and Costs. 
 
 Victoria, etc., (same as in No. 19.5 down to the words ' were ordered ') were 
 ordered to be paid by the said C. D. to the said A. B., together with cer- 
 tain costs in the said order mentioned, which said costs have been taxed 
 and allowed by our said Court at .$ , (the amount of the allorutiir oi 
 
 allocaiurs, if ^more than one) and further to satisfy the said A. B. the said 
 last mentioned sum, and have you then there this writ. Witness, etc. 
 
FORMS — WRITS OF EXECUTION, ETC. 
 
 1057 
 
 alue of the clmtti'li.] 
 writ make appear 
 Court of Justice at 
 
 have vou there then 
 
 , greeting : 
 lim before uh in the 
 ihere to answer to us, 
 bh committed a<;aiust 
 lere laid to his charge, 
 laid Court shall make 
 ; with you. Witness, 
 
 lit for Plaint ill'. 
 
 all be found in your 
 /e his body before our 
 Division, at Toronto, 
 ,* {tltf amount 
 id A. B. lately in our 
 against the said C. D. 
 according to ('< .ormni 
 ve you then tl.vire this 
 
 Paiimentof M<incii. 
 
 ') which lately in our 
 
 Division! "» v an 
 
 nurable • t''"^, 
 
 dated the 'I'^y " 
 
 iaid C. D. to A. B.. and 
 
 r for raymcnt of 
 
 n/.s' wore ordered') were 
 
 \. B., tot-ether \vith cer- 
 
 d costs have been taxed 
 
 imount of the aUocalur or 
 
 the said A. B. the said 
 s writ. Witness, etc. 
 
 No. 1«S. 
 
 Writ of Ctipias ad Satisfaciendum, on an order for the Payment of CostK only. 
 
 Victoria, etc., {same as in No. 196 down to the word "immediately,") 
 immediately after the execution hereof, to satisfy A. B. for certain 
 
 costs, which, by an order of our High Court of Justice ( 
 Division) or by an order of the Honourable 
 one of the Justices of our High Court of Justice) dated the day of 
 
 18 , were ordered to be paid by the said C. D. to the said A. B., 
 which said costs have been taxed and allowed by our sai I Court at the 
 «aid sum and have you there then this writ. Witness, etc. 
 
 No. 1»!K 
 
 Writ of Sequestration. 
 [Title, etc.] 
 to the sheriff of 
 
 Victoria, etc., to the sheriff of .greeting: 
 
 Whereas lately in the Division of our High Court of Justice 
 
 in a certain action there depending, wherein A. B. is plaintiff and C. D. 
 and others are defendants [or, in a certain matter tliere depending inti- 
 tuled " In the matter of E. F., (tit the case may hi'] by a judgment [or 
 order, «,< the case may be] of our said Court made in the said action [or 
 matter] , and bearing date the day of 18 , it was ordered 
 
 that tlie said C. D. should [pay into Court to the credit of the said action 
 the sum of $ ; or us the case may be] . Know ye, therefore, that 
 
 we have given, and by these presents do give to yoti full power and 
 authority to enter upon all the lands, tenements and real estate whatso- 
 ever of the said C. D., and to collect, receive and sequester in your hands, 
 not only all the rents and profits of his said lands, tenements and real 
 estate, but also all his goods, chattels and personal estates whatsoever ; 
 and therefore we command you, that you do at certain proper and con- 
 venient days and hours, go to and enter upon all the lands, tenements 
 and real estates of the said C. D., and that you collect, take and get into 
 your hands not only the rents and profits of his said real estate, but also 
 all his goods, chattels, and personal estate, and detain and keep the same 
 under sequestration in your hands until the said C. 1). shall 'pay into 
 Court, to the credit of the said action, the sum of f or, a.t the caKe 
 
 nuiy he,] clear his contempt, and our said Court make other order to the 
 contrary. Witness, etc. 
 
 No. aoo. 
 
 Delivery or Ayxessnl I'ldiie of ('hutlils. 
 
 [Title, etc.] 
 
 Victoria, etc., to the sheriff of greeting : 
 
 We command you that without delay you cause to be returned to 
 the following chattels, namely (eniimerite chattels recorered by judyment 
 fur the return of which crecution has becii ordered to isnue,) which the said 
 lately (recovered against or wi.s ordered to deliver to the said,) 
 ill an action of our High Court of Justic(5 Division. 
 
 j.A. 67 
 

 1058 APPENDIX. 
 
 • ... 
 
 And we further command you that if the said chattela cannot be found 
 in your bailiwick then of tlie said goods and chattels of the said in 
 
 your bailiwick you cause to be made (the (i.isi'.^m'd raliic nj the i-huttelx). 
 And in what manner you shall liavo executed thi.s our writ nmla> appear 
 to us in our said Court immediately after the execution htreof. And 
 luive tiiere then this writ. 
 
 Witness, etc. 
 
 Indorscmentu, 
 
 If tlie cliattels cannot be found in your bailiwick, levy If tliu 
 
 assessed value thereof, and interest thereoii at (1 per centum pei- annum 
 from the day of IS , initil payment, besides sheriffn 
 
 pcunda^'c, officers' fees, costs of levying, and all other legal incidental 
 expenses. 
 
 This writ was issued by 
 of 
 
 agent for 
 of 
 solicitor to the 
 
 who resides at 
 
 The defendant i 
 and resides at 
 in your bailiwick. 
 
 No. !*OI. 
 
 Writ of A>:^iiiti»!<'itt tif Poir'r (iniili'r Jl. S. (). ISS',\ r. ■',l'i, k. ,'1, wlwre 
 riilht of l:owi'r in ucquirsced in lnj tin: mnn r of tlic lalnlc). 
 
 the 
 
 Ontario, 
 County of 
 
 \'ictoria by the grace of (Sod, etc. 
 
 To the Hhcriff of the County of 
 
 Greetin" : 
 
 Whereas, A. i)., widow, who was tlie wife of V. ])., deceased. dLniiiiiiU 
 ayainst E. ¥. the tliird part of (hero describe the Estate in wliieli dower 
 is claimeil as in other writs of assignment of dower) as the dower of tliu 
 said .V. I), of tlie endowment of the said C. 1)., heretofore lier husband. 
 And whereas it has been made to a))pear to us in our High Court of Jus- 
 tice, (^)ueen's JBencli Divisioih (or Common Pleas 1 )i vision nr ((v ^//c ''om' 
 nun/ he) in Ontario, that the said I). F. is the owner of the said realestnte 
 out of which said dower is claimed, and that lu; acipiiesces in tiie siiid 
 claim and is willing to assign to the said A. li. her proper down', but tiiut 
 the said A B. and Jv ]''.,are not agreed as to the admeasiD-enuuil thcrtof. 
 W'e therefore commntul you that, without delay, you do deliver the said 
 A. \'). seisin of her thiid jjart of the said 
 
 with theai)[)urtenances. To hold to her in severalty by metes and liounds; 
 And that you do proceed in the execution of this our writ, according to 
 the provisions of Chapter 50 cf Revised Statutes of Ontario. 
 
 Witness, etc. 
 
 ( iVIirii the PIdiiilijI' hii-'i morried U'lniii, since the deatli of her Idle hn-fhamh 
 under irhom nlie chiiins doicer, her luime (tiid description muxt be made sueinn 
 Id Kiiit her circuiiiKtaiicen.) 
 
 Rules of 15th Feb., ISO'i. 
 
FORMS — PETITIONS OF RIGHT. 
 
 1059 
 
 ;1b cannot be found 
 of the said in 
 
 due iif the i'hattids]. 
 L- writ nn\la> apptivr 
 ution hereof. And 
 
 levy « thu 
 
 centum per annum 
 
 lent, besides slieriff's 
 
 her U',l;ii1 incidental 
 
 No. 202. 
 
 • of tl«' ''•-■'"'«')• 
 
 i^raee oi tlnd, etc. 
 
 Greeting;'. 
 
 1) ,l...:eased. dLininia^ 
 Estate in which dmvor 
 Iver) as the dower ot the 
 ,cret..fore her hnsba.ul. 
 our Hifih Court et Jus- 
 H pivisiunor.is the <•',» 
 or of the said real estate 
 , acquiesces in t^u..n.a 
 ,,;p,i- .lower, but tlut 
 adu.eisnrenienl thereof. 
 
 yon do deliver the saul 
 
 lly by metes and boumY. 
 is^nir writ,aceordn.gto 
 
 f Ontario. 
 
 IVarrantfor curest of a default in fi icitiica.s. 
 
 \ 
 
 Province of Ontario, 
 County of j 
 
 Between 
 CD, 
 
 X. B., Plaintiff, 
 and 
 Defendant. 
 
 To j;. F. 
 
 Whereas proof lias been made before nie that II. N. was duly sub- 
 |)(ciiaeil to f^ivc evidence on belialf of the plaintiff {or uk the <•«.«' wnij In'), 
 in the cause at the sittin;;s of the Court of Assize {nr 11.1 the ('((.m/ 
 
 //((/// /'(') at Toronto (or <ix the cusr iimii hr, which commenced on the 
 day of 18 ) ; that the presence of the said H N. is material 
 
 to tlio ends of Justice; and that the said II. N. has failed to attend in 
 accordan(!e with the requirements of the subpcjnna. 
 
 These ar(! therefore to coiimnmd you to take the said H.N. and tobriii;^ 
 and luive him before me at the said sittin^^s, or before such other -Iud,L!e 
 as may be presiding! thereat, there to testify what he may know concern- 
 ing tlu' matters m question in the said cause, and that you detain him in 
 your custody until he shall have {^iven his evidence, or until tlie said sit- 
 tint!s shall Inive ended, or until other order be nnide by the Court coii- 
 ceriiiii-' hi)n. 
 
 Given undei- mv bani 
 A.D. 1.S ,'at 
 
 the 
 
 lav of 
 
 J. .J. M. 
 
 x\o. 20:5. 
 
 FAirr XII. 
 
 PETITIONS OF RIGHT. 
 
 I'i'titioll. 
 
 In the Tli^h Court of Justice ((Jucen's Bench or Common Tknu or 
 Chancery Division). 
 
 To the Queen's Most Excellent IMajesty. 
 
 The humble petition of A. B. of , by his Solicitor E. F., 
 
 of , sheweth that (state thrfactn). 
 

 1060 
 
 APPENDIX. 
 
 CoHclmioii. 
 
 Your suppliant therefore humbly prays that, etc. 
 
 The suppliant proposes that the trial of this petition shall take place 
 at the of 
 
 Dated the dav of , A.D. 
 
 (Signed) 
 
 R. S. O. 1877, c. 59, sched. Form 1. 
 
 A. H 
 or C. D., Counsel for A. B. 
 or E. F., Solicitor for A. B. 
 
 No. ao4. 
 
 The suppliant prays for a plea or answer on behalf of Her ^lajesty 
 within twenty-eight days after the date hereof, or otherwise, that tlie 
 petition may be taken as confessed. 
 
 R. S. O. 1877, 0. 59, sched. Form 2. 
 
 No. 205. 
 
 To A. B. 
 
 Notice to Appear. 
 
 , You are hereby required to appear to the within petition ni Her 
 Majesty's High Court of Justice within eight days, and to plead or answer 
 thereto within fourteen days after the date of service hereof. 
 
 Take notice that, if you fail to appear or plead or answer in due time, 
 the said petition may, as against you, be ordered to be taken as confessed. 
 
 Dated, etc. 
 
 R. S. O. 1877, c, 59, sched. Form 3. 
 
 No. 306. 
 
 Appearance. 
 
 In the High Court of Justice (Queen's Bench or Conunoii I'leas or 
 Chancery Division). 
 
 Petit ion of Riijht. 
 
 A. B., suppliant, ] 
 
 The Queen, j 
 appears for him. 
 
 (If the appearance is in person, the address of the party appearing to be given) 
 Entered the day of , 18 . 
 
 R, S. 0. 1877, c. 59, sched. Form 4. 
 
 C. D. appears in person. 
 ocE. F., solicitor for C. D., 
 
FORMS — BONDS, ETC. 
 
 1061 
 
 on shall take place 
 
 A. H. 
 Counsel for A. B. 
 solicitor for A. B. 
 
 No. 20T. 
 
 Certificate of Judgment for Petitioner, 
 
 To the Honourable the Treasurer of Ontario. 
 
 Petition of .right of A. B., in Her Majesty's High Court of Justice at 
 'I'oronto, 
 
 I hereby certify that on the day of , A.D. , it 
 
 was by the said Court adjud>jed (or decreed or ordered) that the above- 
 named suppliant was entitled to, etc. 
 
 Judae^t sinnatun. 
 
 R. S. 0. 1877, c. 59. sched. Form 5. 
 
 half of Her Majesty 
 : otherwise, tliat tlie 
 
 within petition m Her 
 and to plead or answer 
 ce hereof. 
 
 )r answer in due time, 
 ) be taken as confessed. 
 
 , ,„■ tlommon Pleas or 
 
 rs in person, 
 icitor for C. D., 
 
 rUj appearing to he given). 
 
 PART XIII. 
 
 No. 308. 
 
 BONDS, ETC. 
 
 Replevin Bond. 
 
 Know all men by these presents, that we, A. B., (the plaintiff) of 
 
 W. G., of and J. S., of are jointly and severally 
 
 held and firmly bound to W. P., Esquire, Sheriff of the County of 
 
 , in the sum of of lawful money of Canada, to be paid to 
 
 the said Sheriff, or his certain attorney, executors, administrators or 
 assigns, for which payment to be well and truly made we bind ourselves, 
 and each and every of us in the whole, our, and each and every of our 
 heirs, executors and administrators, firmly by these presents, sealed with 
 our seals. 
 
 Dated this 
 and 
 
 day of 
 
 , one thousand eight hundred 
 
 The condition of this obligation is such, that if the above bounden A. B. 
 do prosecute Lis suit with effect and without delay against C. D. for the 
 taking and unjustly detaining (or unjustly detaining, as the. case may be) 
 of liis cattle, goods and chattels, to wit : {here set forth the property dis- 
 trained, taken or detained), and do make a return of the said property, if 
 a return thereof shall be adjudged, and also do pay such damages as the 
 defendant shall sustain by the issuing of the Writ of Replevin if the said 
 A. B. fails to recover judgment in his said suit, and further do observe, 
 keep and perform all rules and orders made by the Court in the said suit, 
 then this obligation shall be void, or else remain in full force and virtue. 
 
 Sealed and delivered ) ' . 
 
 in the presence of | 
 
 Form of Assignment. 
 
 Know all men by these presents, that I, W. P., Esquire, Sheriff of the 
 County of , have at the request of the within named C. D., the 
 
\ 
 
 \ 
 
 \ 
 
 < 
 
 1 
 
 1062 . APPKNIMX. . 
 
 avowant (nr pi'rudii nuthiiKj (■ii<itiiz<inrv) in tliis ciiuko, uMsinnofl ovor tlii« 
 KupUain Hoiul unto tliu said (!, I)., pn. huant to tho Statiiti's in hucIi lasc 
 made and ))rovided. 
 
 In witncHH wliereuf, I liave lioretinto set my hand and Hoal of ollici'tliis 
 day of , one thousand eit,'lit hundred and 
 
 Sealed and delivered ) 
 in the iiresenco of j - . 
 
 R. S. O. 1877, c. Vj, Form '1. 
 
 \fa^cij fit. 
 
 No. ao«. 
 
 a I i c/y (^^t^ ^ Appeal lUmtl (mi Appral to Court of App,;il) 
 
 TJ 
 
 fs 
 
 Know all men by those prenents that we {iiniiiiiiii (ill /he o!di<iiit^ irilh 
 their phice^i of re^idenee iind iidilitioiiK), avo jointly and Kcvcirally lieM iiinl 
 (irndy bound unto (iiuiiiiiiji the ohliiiecs with their pLires of m^ideiiri iiiul 
 lulditionA, in the jjcnal sum of dollars, for whieh payinont, well 
 
 and truly to be made, we bind ourselves, and eaeh of us by hiniself, oil)-. 
 and each of our lieirs, executors, and administrators, respecjtiveiy, firmly 
 by tliese presents. 
 
 Dated this day of 
 
 Whonvis {the djipelhiiit] comitlain^- that, in th(^ ttivinv; of a certain judij- 
 ment in a certain siiit in Her Majesty's Hi;;;!! (,'(jui-t of Justice (^)ueen's 
 Bencii (or C!hancery or C^omnion I'leas Division, an the ease iikii/ he), in the 
 Province of Ontario, between {miiiiiiiii the imrties to the eaiiKe) manifest 
 error hath intervene(l, wherefore {tlie iijtpellniit) desires toa))[)eal fronitlu> 
 said judj^ment to the C'ourt of Ap()eal. 
 
 []t'here it i.< de.iiretl iil ■■■} ^; nive t lie xernril ii re(f>iired In/ Inir in order tn 
 Ktai/ execution insert, .Vnd whereas t!ie said {uppelhint} is desirous of Imv- 
 in<^ the execution of the said judgment stayed jiendini,' the appeal.: 
 
 Now the condition of tliis oblit^ation is such, thiit if {the oiipilhint) do 
 and shall effectually prosecute such appeal, and pay sii,:li costs and 
 dam.iu'es a; shall b(^ awar.led, in case the judgment aforesaid to be 
 tipjjeaied from shiill be iiffirnnKl or in part affirjiied. /» order to lUuii ere- 
 cutioti (See Itide ,S()1-) where tlie Jndiiinent direets sole or delireri/ of posses^iiim 
 of proper! 1/ add, antl durinj^ the possession of the proi)erty in ijiiestion in 
 the said action {or otlicririiM- deserihimi il) by {the nppelldut) he shall rmt 
 (ionimit or suffer to be committed any waste on the property, and tlmt i: 
 the judguK^nt be affirnied. or in jiart at'lirined, he shall jiay the value ot 
 the use and occupatio;' of the pro|)i!rty from the time of the ii|)|ieal luitil 
 the delivery of possession thereof ladd in rose llie judfiment is fir the xak'uf 
 the properlij and paijiio'iil of inn/ (f'icieiieji iirisiiiii upon tlie sole, and that in 
 case of any deficiency ai'isini,' upon a sale as diiecl -d by the said jiid^;- 
 ment he sluill pay the aumunt of tli(> deticiency) or the part thereof as to 
 which the judgment may be atlirmtd if it be allirmed only as to part, or 
 where the Jud(iineiit directs the pujiiiieiit of iiionei/ odd, and shall pay the 
 amount by said judgment directed to be paid, either as a debtor for dam- 
 ages or costs or the part hereof as to which the judgment may be tiffinneil, 
 if it be at'tirined only as to p;irt. and all damaj^es awarded a','ainst (//(/' 
 appelliint on sucli appeal, or where the jiidiiineiil directs the delirenj to' docu- 
 ments or persoiiiil propertii odd, and shall ob'jy the order to be made by tlie 
 Cotirt of Appeal then this obligation sh.all be void, otherwise to r'niaiii 
 in full force. 
 
 Signed, sealed and delivered, in the pres; iice of 
 
FORMH — BONDS, ETC. 
 
 1063 
 
 llrtHimiefl t)V,;V tilis 
 
 tiilutes in siuli f\w 
 ncl soul of otlK'otliis 
 
 ■III). 
 
 ,, ,(// I'll' i>!ili;ii)r.< iritli 
 lul Bevonilly held mitl 
 ,/„<Y.s I'f ivs/,/,')i.'c awl 
 
 which iniyment, well 
 of us 1)V hiniHL'lf. ouv, 
 ■H, reHi.ectivcly, finnly 
 
 All'vlnvii of ■JnMifirdtiiin to br (Uiiiiwiul. 
 
 In the I Huh Court of Justice. Division. 
 
 Between A. H.. Plaintiff, 
 
 V. 
 
 C. D., Defendant. 
 
 [, E'. v.. of make oath and say, tiiat 1 am a resident 
 
 iiiliiihitaut of Ontario, and am a householder in {nr a free!iolder in 
 
 ,) and that 1 am worth the hum of , (the ■•miii iiifii- 
 
 tio)ii'il (/.< the pcnulti/, nr auch siiiii as tlw di-puncnt is huinnl in), over and above 
 wluit will pay all my debts; and [, .1. ][., of make oath 
 
 and su\', that I am a resident inhabitant, and am a householder in (nr a 
 ffcelioldcr in ,) and that I am worth the sum (</>■ in the former 
 
 itixv] nf over and above what will j)ay all my debts. 
 
 The above named doponenta, j 
 !■;. V. A' J. H., were sworn, etc., ' >• 
 
 tlu' day of 
 
 18 , before me. ) 
 
 Commissioner, etc. 
 
 vinU of a certain jnds;- 
 
 rt of -Justice (,)iimvs 
 
 tliecitie iiKi'J '"'*• i". ^-'"^ 
 
 /„ the caiiM'] nuuiifest 
 
 ^ii-es tcuippeal from the 
 
 ;,.,,,/ hit /'"(• in ol-'h'V to 
 ml) is'de>uroas of htiv- 
 linn the aiiiieal.; 
 
 at if {""' "/'/"'"""'' '''' 
 i.l pav su.di costs and 
 onien't aforesaid to be 
 d, /)( oriirr to KtiiiJ ''f''- 
 /ordf1irrr!iofi>os:<,'Moii 
 
 propuvty in (luestion m 
 
 aniirllant) he shall n<.l 
 
 ,u.' property, and that ir 
 
 shall l>ay the value o 
 Itim.' of the api-eal until 
 
 ,mo» «/(.■•-■"'.•, and that ui 
 
 et 'd bv the saul jml'n- 
 or the part tliereof as to 
 nned onlv as to part, or 
 
 ,„/,;, and shall pay tli." 
 .her as a debt or f.>.- dam- 
 ubnnentnmybeaffiruHM, 
 ,es awarded a<:;amst (//i'' 
 Irects the iMircrij 'I' 'loc^- 
 . order to be made b> the 
 ■oid, otherwise to r-.ww 
 
 of 
 
 No. !>I1>. 
 
 Apjieul ImiuiI {on Apiienl to tlie I'rinj Conneil), 
 
 Know all men by these ])resents, that we {miniinii nil the oJiUiiorn, with, 
 tiieir plneeK of renidenee and iiilditionn), are jointly and severally held and 
 firmly bound unto {numin;/ the uhlijiees, irith their jilaren of' residenee and 
 ndilitiiin!'), in the penal sum of two thousand dollars, for wliich payment. 
 Weil and truly to be nnide. we bind ourselves, and each oi us by himself, 
 our, and eacli of our heirs, executors, and administrators, respectively, 
 lirinly by those presents. 
 
 Dated this day of in the year of our Lord, IH . 
 
 Whereas {the appellant) allej^'es, that in the giviuj^ of judf^ment in a cer- 
 tiuM action in Her ^Majesty's Court of Appeal for Ontario, between {the 
 ri';pondent) and {tlie appellant), nuuiifest error hath intervened, wherefore 
 ithe appellant) desires to appeal from the said judf^ment to Her ^Majesty, 
 ill Her ^Majesty's I'rivy Council. 
 
 Now the condition of this obli^'ation is such that if (the appellant) do 
 and shall elTectually prosecute such ajujcal, and pay such costs and dam- 
 a!,'es as shall bo awarded, in case the judgment aforesaid to be appealed 
 fioin siiall be attirmed, (U- in part affirmed, then this oblii^ation shall be 
 Void, otherwise shall remain in full force. 
 
1064 
 
 APPENDIX. 
 
 No. 211. 
 
 PART XIV. 
 
 MISCELLANEOUS. 
 
 Certificate of Action being on Lower Scale. 
 (Title of cause or matter.) 
 
 I hereby certify that, to the best of my judgment and belief the Lower 
 Scale tariff of fees is applicable to this case. 
 
 Dated, etc. 
 
 No. 213. 
 
 A. B., Solicitor for 
 
 Certificate of Taxation. 
 [Title, etc.] 
 
 I certify that the coats of the 
 
 at $ 
 
 Dated, etc. 
 
 l)een ta^'ed and allowed 
 
 No. 213. 
 
 Form of Certificate of Officer after Trial. 
 
 [Title, etc.] 
 
 I certify that this action was tried before the Honourable Mr. Justice 
 [and a special jury of the county of on the 
 
 and days of (October,) 18 .] 
 
 [The jury found (state findings).] 
 
 (If the Judge gil-e instructions as to the judgment thereon, add), And the 
 said Judge directed, etc., [as the case mag be] . 
 
 Dated, etc. 
 
 * '/ 
 
 
FORMS — MISCKLLANE0U8. 
 
 1066 
 
 No. 314. 
 
 Form 0/ Satit/actiun Piect. 
 
 In the on the day of A. D. 18 , to wit. 
 
 Satisfaction is acknowledged between plaintiff and 
 
 defendant in an action for ft and costs. And do hereby 
 
 e.xpressly nominate and appoint solicitor to witness and attest, 
 
 execution of this acknowledgment of satisfaction. 
 
 Judgment entered on the day of 
 
 Signed by the said in the presence of me" 
 
 of one of the solicitors of the 
 
 Supreme Court of Judicature for Ontario. And I 
 hereby declare myself to be solicitor for and on 
 behalf of said expresslj- named by 
 
 and attending at request to inform 
 
 of the nature and effect of this acknowledgement 
 of satisfbction (which I accordingly did before the 
 same was signed by me). And I also declare that 
 I subscribe my name hereto as such solicitor. 
 Rules T. T. I806, (54. 
 
 (Signature) 
 
 the above-iuvmed 
 
 plaintiff. 
 
 Date. 
 
 nt and belief the I-owor 
 
 tioed and allowed 
 
 No. S15. 
 
 Form of return of Judriments. 
 
 List of Judgments entered in the office of the Deputy Clerk of the 
 Crown (ti)' Deputy Registrar or Local Registrar, nx the fnse may be) of the 
 County of during the three months ending the 
 
 day of 18 ' 
 
 (1) Plaintiff Defendant, 
 
 (2) Date of entry of judgment, 
 
 (3) The amount recovered, or other relief given, exclusive of costs. 
 (i) The amount of costs taxed. J. A. Rule 517. 
 
 --i» 
 
 ,.nt thereon, add), And the 
 
 No. 316. 
 
 Verification of Statement of Moneys in Court {Rule 161). 
 
 I hereby solemnly declare that the annexed statement is a full and trui; 
 statement of the moneys paid into the High Court and the Court of 
 Appeal during the year 18 , and that it correctly shows the state of the 
 various accounts therein mentioned upon the 31st day of December last 
 
 (Sif/nature) A. B., 
 
 Accountant or Accountant's Clerk. 
 
 Subscribed and declared before me, at , this day of 
 
 January, 18 . 
 
 CD. 
 
 Commissioner for taking afidavits, or 
 Justice of the Peace. 
 U. S. O. c. .'iO, 8. 121, (4). 
 
'^^^wp^ 
 
 1066 • APPENDIX. ' 
 
 No. ai7. . . ' ■• '' •" 
 
 ]'i'riiiciitiiiii III' 1,'iliirii i)f Moiii'iii i>iii(l iiUo C. (.',, or SiirrDiiiite '' mrt. 
 
 1 l)orcl)y BoU'innly declare tliaL the annexed statement is a full and tiiie 
 «tateinoiit .if tlio moneys p. 'd into the County (or Surro>;ate| I'oui't of the 
 County of , (lurin<4 the year 18 , and that it correctly shows the 
 
 state of till- variouH accounts tlicreia mentioned upon the thirty lirst day 
 of ])ecember last. 
 
 
 
 
 
 
 • 
 
 
 {Siiiiiiitnrt 
 
 ) 
 
 A. 
 
 J5.. 
 
 V, or Hciii 
 
 Ktnir. 
 
 
 s 
 
 (hi> 
 
 iibscrihed ai 
 uf January, 
 
 d de 
 
 diir- 
 
 ■d h' 
 
 ■fore 
 
 nic. at 
 
 
 C 
 
 this 
 . 1). 
 
 
 
 
 
 . 
 
 
 
 
 
 
 Cnnmi-^ 
 
 ■•iidiii 
 Just 
 
 )• fur 
 ice m 
 
 tukui'i 
 
 tl 1 
 
 'ICi 
 
 iiliirih 
 
 or 
 
KOltMrf. 
 
 1007 
 
 No. t»l«. 
 
 Siirnrinte <' mrt. 
 
 ent is a full and true 
 rroi^iite) l^nnrt uf the 
 t correctly shows the 
 11 tliu thirty tirst day 
 
 FoiiM <ii- Dkiit Atiachmknt Book 
 
 C. 1). 
 
 I'lir t(iki)t:i iijlidm-ilx, or 
 
 
 •90i[sui.iiu) :)HiiivS« 
 
 (isiiooad Aimi 
 
 .io'}ipo.T;) :iii9niHpiii^' 
 
 ^mi; .lop.io JO o?iit[ 
 
 
 
 •naiisin.nt;) isuinSti 
 
 uoiiuoox;,] 
 
 aoj .lapjo JO ojii([ 
 
 
 
 •.iapj() l[Jllri joo^mj 
 
 
 
 •n,)i[sni.ni!) 
 
 pa.tapjo imioiuy . 
 1 
 
 
 ■')ii<)nii[,)m)v 
 aoj .inp.u) ji> ..ji!([ 
 
 1 
 
 s 
 
 •OdHsni.Tlt;) ](>r.ui\iv^ 
 
 
 
 •■jti'"'iii^'|'ii[' jii .iji!(r 
 
 
 a 
 
 lUIIll 
 
 ■I^lMir- jii jmioMiy 
 
 ••i"]q'( [ 
 
 
 
 
 
 •jfi^uuiu JO ouni^vj 
 
 
Tj^^&X^'F .a.. 
 
 TABLC OF COSTS 
 
 —IN THE— 
 
 HIGH COnRT OF JUSTICE AND COUNTY COURTS. 
 
 General allowance for Plaintifts and Defendants, as well between 
 Solicitor and Client as between Party and Party : — 
 
 Xeitlicr the Tiixintr Officer nor a .sinj,'I(' Judgt- has any discretion to exceed the amount 
 •'pi'citii'd bv the tariff where no power to increase is thereby given : Ite Totten, 8 P. R. 
 380. 
 
 Where an action is brought against a solicitor who defends it in jier.son and obtainH 
 judgment, he is entitled >ii)on taxation to the same costs as if he had employed a solicitor 
 fxccpt in resjM'Ct of items which tiie fact of his acting directly renders nnnecessiiry : 
 l.i'iutiiii Sfiittish /{I'lii'/it Sdciffi/ V. ('/m/7(7/. 12 (^. ]>. I). 452. Wiiere he nominally ai)peared 
 bv a solicitor but did the work himself, the .same costs were held to l)e taxable : Kimj v. 
 Mni/a; i) P. R. f)14. 
 
 As to when defendants should ap)iear by the same solicitor, or may ajipear Iw .sejiarate 
 solicitors : see Morgan & W'urt/ourg, on Costs, ]>. 124 ; llairell v. ('amj)liell, 7 P. R. 150 ; 
 ihnnlhi V. /////, ///., 441 ; and notes to /.'/'/'■ 1202. 
 
 Ill Rr I. null, 2!) Sol. .lour. 2!K), t.'iistee.s, \ iz : the widow of tiie testator, who was also 
 tenant for life, and three other.s, were allowed two .sets of costs, they having severed on 
 tlio Ki-ound that the Ruh' was that a trustee, also a tenant for life, might appear 
 separately from his co-trustees. 
 
 l)efeiiilants joining in a statement of defence may .sometimes pro|)erlv separate at the 
 trial, and be represented by different co\iii.sel, where tiieir cases are distinct : see -l.'/'V v. 
 W'"W...7.-, .51) L. T. N. S. H!»0; see also /'./c/V v. (ini'lpli, We., 10 P. R. (idO. Where one of a 
 Wy of mortgagees is a .solicitor, he may liave profit costs of enforcing the iiKHtgage 
 swiirity, whether the mortgagees are trustees or not : Ri Dondldxcn, 27 Ch. I>. 544. A 
 ■t'llicitor executor was held enticled to ))roHt costs of an action in which his firm acted for 
 liitnself and co-executors, liut was not entitled to profit costs for business not done in the 
 artioii : Re Itmbn, Binycss v. \'iiiiiiwu;3') W. R. 32G ; Rr Cornc/li.s, LiiirOm v. AYcv.s, 34 
 (j\\. I). ()7o ; see also R<' Rohcrts, 43 Cii. D. 52, and a collection of cases and discussion, 
 •-'OC. L. .1. 218. 
 
 Where an action is dismissed with costs it means the costs of all defendants, and in all 
 capacities in which tliev are defendants : WouUni v. Voh'WfUi, \\. N. 188(1, (>, 3(5 ; 80 L. T. 
 •lonr. 320. 
 
k . I: 
 
 w. ■ 
 
 n 
 
 1070 
 
 TARIFFS. 
 
 In anactidii on ;i covenant for indcnniity against a mortgage, tlie plaint iff isnot entitlrd 
 to solicitor and client costs, but only to jiarty and party costs of the action iiimn the 
 covenant : Uullun v. \\'<uizer, 11 T. R. 302. 
 
 This tariff seems only to conteniiilate costs of the kind deserilied as " hetween solicitor 
 and client "' and "hetween ))arty and i)arty." In Ciiiisinaut v. *'it;i of l.ninli,,,^ ii> |>, f{, 
 512, it \vai said that the costs in an action between s-)licitor and client include sudi costs 
 as a solir'itor can ta\ against d resisting client under a general retainer to prosecute or 
 defend the action. 
 
 The existence of an intermediate class of costs "as hetween solicitor ami client" was 
 formerly recognized in the Chancery Taxing Office, and is refern d to in Unh- H.s; ; sw 
 also item '.If, ill fid. 
 
 As to "moderation " of costs, .see licathj v. Haldanc, 4 C. L. T. .Vll. 
 
 The tariff applies in solicitor and client taxations, and under linh 1'_'17 no other fees arc 
 are t<i lie.illoweij in respi^ct of the matters provided foi by tlie tariff. See also Itc Hnri-isun^ 
 H(» I,. T. .Four. 48-J. 
 
 1. liibtructioiiri to sue in uiKlet'eiideil cast's 
 
 2. lu d(;tVn(lccl cases 
 
 3. Instructions to dd'cncl 
 
 4. Instructions for petition where no writ of suin-i 
 
 nions issued ' *2 00 
 
 ^VR1TS. 
 
 5, .\1! writs, f>ui.'[)t writs of execution, subpienas, 
 
 and concurrent, and renewed writs 
 
 I). Concurrent writ 
 
 7. Iicnewed w rit (except w rits of execution ) 
 
 8. All writs if over four folios, for every folio 
 
 S). Sul)p(enii (/(/ t('Htilicnn(him 
 
 10. Hubptena diwcs tc.cnut 
 
 11. AH suhpu'iias if over four folios, additional per 
 
 folio 
 
 12. Notice of wrii for service in lieu of writ out of 
 
 jurisdiction and copy 
 
 13. (Alias, and subsequent, writs, to lie allowed as 
 
 originals.) 
 
 14. Special indorsement of writ of summons 
 
 15. Suing out any writ of execution 
 
 il in hi; It 
 
 SCVLE. 
 
 $ c. 
 
 3 00 
 
 4 00 
 
 4 00 
 
 2 00 
 
 2 00 
 
 ] 50 
 
 1 50 
 
 20 
 
 1 00 
 
 1 25 
 
 15 
 
 1 00 
 
 1 00 
 
 G 00 
 
 Lower 
 
 Scale 
 
 AN 
 
 ) 
 
 Ci'l-NTY 
 
 CoritTs. 
 
 S 
 
 c. 
 
 2 
 
 CO 
 
 3 00 
 
 3 
 
 00 
 
 1 
 
 00 
 
 1 
 
 00 
 
 
 
 To 
 
 
 
 7^ 
 
 u 
 
 •20 
 
 
 
 "0 
 
 
 
 75 
 
 
 
 15 
 
 75 
 
 
 
 75 
 
 4 00 
 
TAUIFI'' 
 
 1071 
 
 plaintiff is not I'lititLd 
 the action \\V"n the 
 
 ■IS "iH-tWCIll siilicitov 
 
 yo/ J.n,Hln„,Vl V. U. 
 
 lent include s\ich cnsts 
 tainiT to iivosccutc or 
 
 ieitor and client"' was 
 ..Itoin /.'»/'• IISV; see- 
 
 541. 
 
 /( 1"17 nootlici'fi'cs arc 
 
 {. Set) also /.'-'//'"•'■;«.«, 
 
 Lower 
 
 HKilll-.lt 1 SC-VLE 
 
 CorNTV 
 1 CoriiTs. 
 
 iinn- 
 
 $ c. I ^ c. 
 
 I '.) 00 I 2 CO 
 
 .! -1 00 i '-3 00 
 
 .! .1 00 1 -3 00 
 
 o 00 I 1 00 
 
 uas. 
 
 
 2 00 
 
 1 r,o 
 
 1 50 
 
 ) 
 
 20 
 
 
 1 00 
 
 
 1 25 
 
 il per 
 iUt oi'i 
 
 15 
 
 1 00 
 
 L'd as 
 
 
 
 1 00 
 
 
 G 00 
 
 1 00 
 75 
 75 
 -20 
 -0 
 75 
 
 15 
 
 75 
 
 75 
 4 00 
 
 HioHEn 
 Scale. 
 
 TABLE OF CO^TH— Cunt in ticil. 
 
 IteiieWiil of any writ of execution , 4 00 
 
 (In both cases, incliulinj^ pljiciug same in tlu;, 
 Slu'riti''3 liands, all attendances, indorse-] 
 merits and letters in connection therewith.; 
 
 Coi'Y AND SeUVICK OF WuiTS OF SfMMONS, ANO OTHER 
 
 PUOCESS. 
 
 16. For copy, incliidiuo; copy of notices re([iiired to 
 
 be indorsed, eiich | 1 00 
 
 If over f(»ur folios, for ewry adiiirional folio i 10 
 
 'i'lK'Tikxiii),' Otiicer li:i.- uij di-cietion to reduce tlie cliuri,'<' of 
 .■<1 where le.^s tilKll ♦'our folios: '>r'y,' v. ViUiiif/'' /'iihlishiilil 
 
 (■"., I'.XJ. ii. .1. 17.-): 3(". L. T. L'(i7.' 
 
 17. Service of esicli co[)y of writ, if not done by the 
 
 Sheriff or an ollicer I'niployed by him, when 
 taxable to solieitoi' on Sberilfs default 1 00 
 
 It would seem that " writ '" in this jieni includes a sub- 
 jKi'ua : ' •'''•/// V. Li;i'l'',i, V.<, v. Vx. -JS,-) ; see also liiih V2V2. 
 
 18. If served at a distance of over two miles from 
 
 the nearest place of business, or oilice of 
 the solicitor sovvinj^ same, l'()r each mile 
 bevonil two miles | 13 
 
 LowF.ii 
 
 SCALK 
 ANI) 
 
 County 
 
 COCUTS. 
 
 $ C. 
 
 2 50 
 
 75 
 10 
 
 lil. For service of writ out of jurisdiction 
 
 50 
 
 Such al 
 lowanc(^- 
 
 as the 
 Taxing' 
 Officer 
 
 shall 
 think fit. 
 
 Instuuctionh afteu CoAnrENCEMEN'r OF Action. 
 
 20. To counsel in special matters 1 00 
 
 21. To counsel in common matters 50 
 
 22. For special allidavits when allowed by the Tax-; 
 
 ing Officer (or County Court Clerk in C. C.l 
 cases) ! 1 1 00 
 
 10 
 
 Such al- 
 lowance 
 as the 
 Taxinff 
 < )fficer 
 or (J. 0. 
 fudge 
 shall 
 think tit. 
 
 50 
 25 
 
 50 
 
 'A 
 
1072 
 
 TARIFFS. 
 
 TABLE OF CO^T^— Continued 
 
 23. For special affidavit on production N/hen allowed 
 
 by the Taxing Officer 
 
 24. Fur pleadings in action 
 
 This is allowed once only inthi> course of the tiction ; Tor- 
 f ranee v. Turrancc, 9 P. R. 271 ; "J C. L. T. 311. 
 
 25. For counter-claim, when such claim could not 
 
 prior to the Ont. Jud. Act, 18S1, have 
 formed the subject of a set-ofif 
 
 26. For reply to such counter-claims 
 
 27. To amend any pleading when the amendment 
 
 is proper 
 
 28. For confession of defence under Rule 440 
 
 29. For special case in course of action 
 
 30. For special ease when no writ issued, or plead 
 
 ings had, and no instructions to sue 
 allowed 
 
 31. To add parties by order of Court or Judge 
 
 32. For brief 
 
 33. For every suggestion 
 
 34. For adding parties in consequence of marriage, 
 
 deatb, assignment, etc 
 
 35. For issue of fact, by consent, or Judge's order... 
 
 36. To defend added parties after suggestion of 
 
 death of original party, or on revivor 
 
 87. For confession of action in ejectment as to the 
 
 whole or in part 
 
 88. To strike or reduce special jury 
 
 89. For such other important step or proceeding in 
 
 the suit as the Taxing Officer is satisfied 
 warrants such a charge 
 
 Instructions for appeal .S2.00 is jh-oimt : linrhrr v. Murlaii, 
 2 O. I,. 'IV ;'!(); also instniution.s to examine a plaintiff 
 or a (leTeniiant, ■'S2.<X) : Altxaitder \, Schmil Tmsti'c.i, 11 
 V. R. lij?. 
 
 Higher 
 
 Scale. 
 
 !? 
 
 c. 
 
 2 
 
 00 
 
 1 
 
 50 
 
 t 
 
 2 
 
 00 
 
 2 
 
 00 
 
 2 
 
 00 
 
 2 
 
 00 
 
 2 00 
 
 3 
 
 00 
 
 2 
 
 00 
 
 2 
 
 00 
 
 1 
 
 00 
 
 1 
 
 00 
 
 2 
 
 00 ': 
 
 2 
 
 00 
 
 1 
 
 00 ' 
 
 2 
 
 00 
 
 2 
 
 I 
 1 
 
 00 
 
 Lowe 11 
 Scale 
 
 AND 
 CODNTY 
 COUIITS. 
 
 !? C. 
 
 1 00 
 1 (JO 
 
 1 00 
 1 00 
 
 1 00 
 1 00 
 1 00 
 
 2 00 
 1 00 
 
 50 
 
 1 00 
 
 50 
 
 1 00 
 
 1 00 
 
 50 
 
 1 00 
 
 1 00 
 

 
 LOWEII 
 
 HiClIlER 
 
 Scale. 
 
 Scale 
 
 AND 
 
 County 
 
 
 COUHTS. 
 
 $ c. 
 
 $ C. 
 
 2 00 
 
 1 00 
 
 1 50 
 
 1 (10 
 
 2 00 
 2 00 
 
 2 00 
 2 00 
 2 00 
 
 3 00 
 2 00 
 2 00 
 1 00 
 
 1 00 
 
 2 00 
 
 2 00 
 
 1 00 
 
 2 00 
 
 1 00 
 
 1 00 
 
 1 00 
 
 1 00 
 
 1 00 
 
 2 00 
 
 1 00 
 
 50 
 
 1 00 
 
 50 
 
 1 00 
 
 1 00 
 
 50 
 
 1 00 
 
 2 00 1 00 
 
 TARIFFS. 
 
 1073 
 
 TABLE OF COST^— Continued. 
 Drawing Pleadings, Etc. 
 
 40. Statement of claim 
 
 41. If above ten folios, for every folio above ten, in 
 
 addition 
 
 42. Statement of defence, if five folios or under .. 
 
 43. If above five folios, for every folio in addition.. 
 
 44. Statement of defence and counter-claim, up to 
 
 fifteen folios 
 
 45. For every folio over fifteen 
 
 4G. Keply and other pleadings for or on behalf of 
 
 plaintiff or defendant 
 
 47. If above ten folios, for every folio in addition... 
 
 48. Demurrer 
 
 49. Petition, per folio 
 
 50. Issue for trial of facts by agreement or order, 
 
 for every folio 
 
 51. In special or contested actions or matters on the 
 
 Higher Scale to be increased to such sum 
 as the Taxing Officer in Toronto may think 
 fit. 
 
 52. Special case, per folio 
 
 53. Drawing interrogatories, or answers for any 
 
 purposes required by law, per folio 
 
 54. Drawing reasons for or against appeal, per folio 
 
 55. (The above charges do not include engrossing, 
 
 or copies to file or serve.) 
 
 56. Taking cognovit and entering judgment thereon, 
 
 when there has been no previous proceed- 
 ing, and the true debt does not exceed 
 $200 
 
 57. For same services when the true debt exceeds 
 
 $200 
 
 68. Drawing and engrossing cognovit, and attend- 
 ing execution, when there have been pre- 
 vious proceedings 
 
 J. A. 68 
 
 $ c. 
 
 2 00 
 
 20 
 
 20 
 
 20 
 20 
 
 8 00 
 12 00 
 
 2 00 
 
 $ c. 
 
 1 00 
 
 20 
 
 15 
 
 2 00 
 
 1 00 
 
 20 
 
 20 
 
 3 00 
 
 1 50 
 
 20 
 
 15 
 
 2 00 
 
 1 00 
 
 20 
 
 15 
 
 2 00 
 
 1 00 
 
 20 
 
 15 
 
 20 
 
 20 
 
 20 
 20 
 
 8 00 
 10 00 
 
 1 00 
 
TABLE OF CO^TB— Continued. 
 CoriEs. 
 
 $ c. 
 
 59. Of pleadings, brief and other documents, when! 
 
 no other provision is made, and copies pro-i 
 perly allowable 10 
 
 60. Certitied copy of pleadings, or issue, for use ol 
 
 Judge 1 50 
 
 HI. For every folio above fifteen, per folio 10 
 
 62. Of special and common orders of Court or i\ 
 
 Judge 75 
 
 63. Of special orders of Court above three folios, 
 
 per folio i 20 
 
 NOTICKS, INCLUDING OnK CoPY. 
 
 64. Of appearance, when duly entered and notic( 
 given on the day of appearance, but not 
 otherwise ; 
 
 To Sheriif, to discharge prisoner out of custodj; 
 
 Notice, in actioii for recovery of land, to defend I 
 for part of premises; not to be allowed 
 when defence limited by appearance '■ 
 
 If above three folios, per folio in addition 
 
 Notice of claimant's or defendant's title in action 
 for recovery of land, same fees. 
 
 Notice of entry of appearance in action for 
 recovery of land by a party not named in; 
 writ j 
 
 69. Demand of particulars 
 
 70. Particulars of claim, demand, set-off, or counter- 
 
 claim, fiv(i folios or under 
 
 If exceeding live folios, jjer folio in addition ... 
 Notice of admission of right and denial of ouster 
 
 by a joint tenant 
 
 If above three folios, for every folio adilitional... 
 
 65 
 66 
 
 67 
 68 
 
 50 
 50 
 
 1 00 
 20 
 
 50 
 50 
 
 71 
 
 2 
 
 00 
 
 
 
 20 
 
 
 
 50 
 
 
 
 20 
 
 $ c. 
 
 10 
 
 75 
 10 
 
 50 
 
 10 
 
 on 
 
 50 
 
 50 
 15 
 
 25 
 50 
 
 75 
 In 
 
^^ 
 
 TARIFFS. 
 
 1076 
 
 Illdlll'lt 
 SC.U.E. 
 
 LOWEB 
 
 Scale 
 
 County 
 Couina. 
 
 S c. 
 
 hen 
 
 10 10 
 
 le ol 
 
 1 50 
 
 ' 10 
 
 75 
 10 
 
 or it 
 
 75 
 
 50 
 
 )lios, 
 
 i 20 
 
 10 
 
 lotict 
 t not 
 
 ' 50 
 
 stodji 50 
 
 Icfoiul 
 
 lowed 
 
 ... 1 00 
 
 , . 20 
 
 i\ctiorj 
 
 111 for 
 ned in 
 
 unter- 
 
 50 
 50 
 
 2 00 
 
 iion ...! 20 
 ouster I 
 
 I 50 
 
 onal...l 20 
 
 'ly> 
 50 
 
 50 
 15 
 
 25 
 50 
 
 75 
 15 
 
 TABLE OF CO^T^-- Continued. 
 
 72. Of discontinuance and one copy 
 
 For every additional copy, per folio 
 
 73. Of disputing amount of claim 
 
 74. Of confession of action in action for recovery of 
 
 land as to whole or part i 
 
 75. Notice in lieu of statement of claim, and one' 
 
 copy ; 
 
 For every additional copy, per folio j 
 
 76. Of trial or assessment and one co])y 
 
 For every additional copy, per folio ' 
 
 77. Denuxnd of residence of i)liiintill" i 
 
 78. JJemand of names of partners 
 
 79. All common notices not above Gpecitied 
 
 80. Notice to admit, and produce, if not exceeding' 
 
 two folios, and one copy j 
 
 For every additional copy, per folio | 
 
 I 
 
 81 . For each necessary folio above two 
 
 82. Notice of settiiif,' down on motion for judf^ment,| 
 
 or on further directions and one copy 
 
 For every additional copy, ])er folio 
 
 83. Notice of motion in Court, or Chambers, en-j 
 
 grossing and copy to serve, per folio 
 
 For every additional copy, per folio 
 
 8-4. Notice of taxation, or appointment to tax, and; 
 
 one copy 
 
 For every additional copy, per folio 
 
 85. For preparing, and filling up for service, in any 
 cause or matter, each notice to creditors 
 to prove claims, and each notice that 
 che(pie may be received, si)ecifying the 
 amounts to be received for principal and 
 interest, and costs, if any — including mail- 
 ing 
 
 1$ c. 
 
 50 
 10 
 50 
 
 Lower 
 
 HCAI,E 
 AND 
 
 County 
 Counts. 
 
 60 
 10 
 50 
 10 
 50 
 50 
 50 
 
 50 
 10 
 
 50 
 10 
 
 30 
 10 
 
 
 
 50 
 
 
 
 10 
 
 
 
 25 
 
 $ c. 
 
 40 
 10 
 25 
 
 50 40 
 
 25 
 10 
 25 
 10 
 25 
 25 
 25 
 
 25 
 10 
 
 20 20 
 
 25 
 10 
 
 15 
 
 10 
 
 25 
 10 
 
 25 
 
1076 
 
 TAIllFFS. 
 
 TABLE OF COSTS— Continued. 
 
 86. Notice of filing affidavits, when required, and 
 
 one copy (only one notice to be allowed for 
 a set of affidavits filed, or which ought to 
 
 be filed together) 
 
 For every additional copy, per folio 
 
 87. Notice by Defendant to third party, under Rule 
 
 329 
 
 Peuusals. 
 
 88. Of each of the pleadings as defined by the Judi- 
 
 cature Act 
 
 89. Of special case by the solicitor of any party, 
 
 except the one by whom it is ])repared, 
 when the case is submitted in the course 
 of the cause 
 
 90. And in sisecial, or contested actions, or 
 
 matters, or of interrogatories, and cross-- 
 interrogatories on commission 
 
 91. Of affidavits and exhibits of a party adverse in 
 
 interest, filed or produced on any applica- 
 tion, where perusal is necessary if twenty 
 
 folios or under 
 
 On the Higher Scale per folio over twenty folios 
 (Not in any case to exceed the sum of $5.) 
 
 Attendances. 
 
 92. Necessary attendance consequent on the service 
 
 of a notice to produce or admit, or an in 
 Bpection of documents when produced 
 under order including making admission, 
 altogether 
 
 IIlOIIRIl 
 
 Scale. 
 
 LoWKU 
 
 SCAI.K 
 
 AND 
 
 County 
 Coum-s. 
 
 C. 
 
 1 GO 
 05 
 
 c. 
 
 50 I 25 
 
 10 10 
 
 1 00 60 
 
 1 00 i 50 
 
 2 00 1 GO 
 
 Such sum 
 
 IS tilt! 
 
 Ortic'tr ill 
 'rdninto 
 tliiiikstit. 
 
 :- 50 
 
 5G 
 
 1 00 G 50 
 
TAIUFFS. 
 
 1077 
 
 n. 
 
 TABLE OF COST^— Continued. 
 
 To be increased by Taxing Officer (or County 
 Court Clerk) in cases of special, difficult 
 and important nature, to 
 
 Attending on return of motion, in Cliambers.. 
 
 To be increased in the discretion of the presid 
 ing officer, or in C. C. cases of the Judge, 
 to 
 
 HidiiKn 
 
 HCAI.E. 
 
 9i. On consultation, or conference, with counsel, 
 in special, difficult and important matters, 
 in the discretion of the Taxing Officer in 
 Toronto (or in C. C. cases of the County 
 Court Clerk) to 
 
 To be increased in the discretion of the Taxing 
 Officer as between solicitor and client, to 
 such sum as he shall see fit, or in C. C. 
 cases in the discretion of the C. C. Judge, 
 to not exceeding 
 
 No special attendance to be allowed to a solici- 
 tor on proceedings on which he also 
 appears as counsel. 
 
 S«e note to item 160. 
 
 96. Solicitor attending Court on trial of cause, 
 when not himself counsel, or partner of 
 counsel 
 
 And in special, clifp?ult and important cases, 
 each hour necessarily present at trial 
 
 Tn no case to exceed, per day 
 
 (Provided the attendance of such solicitor, and 
 the length of time of such attendance, be 
 duly entered ak the time in the book of the 
 Registrar, Deputy-Registrar, Deputy- 
 Clerk of the Crown, Clerk of Assize, C. C. 
 Clerk, or other officer of the Court present 
 at the time, or proved by affidavit.) 
 
 Lower 
 
 Scale 
 
 AND 
 
 County 
 ConuTH. 
 
 $ C. 
 
 2 00 
 
 1 00 
 
 2 00 
 
 2 CO 
 
 2 00 
 
 2 00 
 10 00 
 
 * c. 
 
 1 00 
 
 50 
 
 1 50 
 
 1 00 
 
 3 00 
 
 1 00 
 
 1 00 
 5 00 
 
 !& 
 
1078 
 
 TAIIIPFB. 
 
 TABLE OF COS'HS— Continued. 
 
 96. 
 
 To hear judgment when not given on close ol 
 argument 
 
 TIiIh is in-opcrly tiixatilc for attt'iidini? to read a written 
 (Igiiicnt liaiuU'd out l)y the .riulfjc to tiii' R<'Ki>itri 
 
 97. 
 
 98. 
 
 99. 
 
 100. 
 
 101. 
 102. 
 
 1 08. 
 104. 
 
 J"' , 
 
 (li'liviTfd ill open ('ourt: (im/i 
 G. h. .1. Ho; ;«('. L. T. '2i>7 
 
 105. 
 106. 
 
 107. 
 
 (vr iukI not 
 Vannila I'ablitiluwj ('«., Ill 
 
 To hear judgment when cause on list tor judi 
 nient, hut judgment not given 
 
 On taxation of costs 
 
 On taxation of costs, per hour 
 
 On revision, ])er hour, when attendance required 
 hy Taxing Officer, or revision had on order 
 
 On revision h}' County Court Judge on appc^il 
 
 To obtain or give undertaking to appear, wlioii 
 service accepted by a soHcitor 
 
 Attendance to file, or serve 
 
 Attendance on warrant, or appointment, oi 
 Master, l^egistrar, Examiner, Picferee, or 
 County Court Clerk, per hour 
 
 To be increased in the discretion of the Taxing 
 Officer in Toronto, or, in C. C. cases, the 
 C. C. Judge, to not exceeding per hour... 
 
 Attendance on Master, or Registrar (or Count.v 
 Court Clerk), in special matters, per hour 
 
 Every other necessary attendance 
 
 Only one attendance is taxable for a pnnijic order : iMtnur 
 V. Smith, 13 P. K. l-'H. 
 
 On important points and matters, requiring the 
 attendance of counsel, the Master, or Ex- 
 aminer, or Eeferee, Judgment Clerk, or In- 
 spector of Titles, may certify the amount of 
 counsel fee proper to be allowed (to be 
 noted at the time,) for the guidance of the 
 Taxing Officer in Toronto (or the Judge in 
 C. C. cases,) who may allow the same in 
 lieu of fees for attendance. 
 
 On the Lower Scale not to exceed $5 
 
 See note to item IGO. - . . 
 
 Lowi;n 
 
 HCALK 
 AND 
 
 CoUN-IY 
 
 Cocurs. 
 
 1 00 
 50 
 
 1 00 
 
 1 00 
 50 
 
 1 00 
 
 1 00 
 1 00 
 
 50 
 50 
 
 50 
 25 
 
 50 
 
 2 00 i 1 00 
 
 50 
 25 
 

 LoWKIt 
 
 iciiiKi: 
 ii'AI/K. 
 
 HCALI' 
 
 AMI 
 (loUNTY 
 
 
 CoDllTH. 
 
 5> C. 
 
 $ C 
 
 2 00 1 00 
 
 1 GO 
 50 
 
 i GO 
 I GO 
 
 1 00 
 1 00 
 
 1 GO 
 
 50 
 50 
 
 1 GO 
 [) 50 
 
 50 
 25 
 
 1 GO 
 
 ; 50 
 
 TARIFF OF COSTH. 
 
 2 GO I 1 00 
 
 50 
 25 
 
 1079 
 
 TABLE OF COSTH— Continiuul. 
 
 108. Or on special and important points, and mat- 
 ters requiriiif^ the attendance of counsel, 
 before Examiner, Ecferee, or County Court 
 Clerk, the County Court Judf^e may, in 
 County Court caHcs in lieu of the fees for 
 attendance, allow a counsel fee when coun- 
 eel attend the same, not to exceed §5. 
 
 BuiEFS. 
 
 109. 
 
 110. 
 111. 
 
 112. 
 
 113. 
 
 HiniiF.u 
 
 HCALK. 
 
 $ C. 
 
 Lower 
 
 R.am; 
 
 AND 
 ClofNTV 
 COIIITB. 
 
 $ c. 
 
 2 00 
 
 Copy 
 
 10 
 
 10 
 10 
 
 114. 
 
 For drawing:; briefs, five folios or under 
 
 Instructions for hricf should ]><• iillowcd wlicrf a, brief itself 
 JH taxed : MrCallinii v. Mri'alhim, 11 1'. i{. 17!t. 
 
 For drawiiij^ briefs, for each folio above five... 
 For drawinj^ brief, per folio, for original and 
 
 necessary matter 20 
 
 Copy of documents, other than pleadings, per 
 
 folio 
 
 of brief for second counsel, when fee taxed 
 
 to him, per folio 
 
 Cliiir^ft'.s forohtaininf,' copii's of Mliortduuid writer's notes of 
 evidence for use (if counsel iit tlu' iirj^unieiit of tliec;ise, whore 
 the !ir>,'unient is unavoidiihly ii.istiioned for a considerable 
 time after the examination of the witnesses or the greater 
 portion of the witnesH''s, ant taxfil)le : Umie v. Canada 
 I'uhllshiivj Co., lil C. L. ,1. ]-->; 3 ('. L. T. 2fi7. 
 
 As to when the costs of ilansand surveys are allowed ; see 
 A[r(t'((ii 1(1111 V. <'li(rki\ '.I 1'. >'. .V).") ; of de|)()sitions of witnesses 
 examined ih' linw c.v.sr.' MiMilldn v. Mi'Milhm, 8 C. L. .T. 
 285, and of depositions of witiiessen examined under a com - 
 mission : see note to Rule 1214. 
 
 Court Fees. 
 
 Fees after statement of claim, or, where state- 
 ment dispensed with, after filing writ, on 
 defence, joinder of issue, trial or argument 
 before courts or any other step in the cause, 
 and on judgments, other than pra3cipe 
 judgments in mortgage cases. No two fees 
 
 1 GO 
 
 G 10 
 G 20 
 G 10 
 
 % 
 
1080 
 
 TARIFFS. 
 
 i 
 
 TABLE OF CO^TS— Continued. 
 
 to be allowed to either party wlieu such- 
 proceecings are taken, or had, between the 
 first day of any sittings of the Courts, 
 (fixed by Rule 216, or (11. S. 0. 1887, c. 47, 
 8. 12, as the case may be), and the first 
 day of the following sittings so fixed 
 
 115. Fee on certified copy of pleadings for Judge... 
 
 116. Fee on every order, or judgment to the party 
 
 obtaining the same... 
 
 The item originally read a.s follows : " 122. On every order 
 of Court and Judge's order or order of Master in Cliani- 
 ber.s 81.00." 
 
 Under the original item, and doiil)tless under tlie amended 
 item, this fee was taxable on a /irmijie order : (t'tit/e v. Canada 
 Fublishinij Co., 19 C. L. J. 175 ; 3 U. L. T. 207. 
 
 117. Fee on praecipe judgment in mortgage cases... 
 
 Affidavits. 
 
 118. Drawing affidavits, per folio 
 
 119. Engrossing same to have sworn, per folio .... 
 
 120. Copies of affidavits, per folio, when necessary. 
 
 121. Common affidavits of service, including service 
 
 by post when necessary, or of payment 
 of mileage and non-appearance, including 
 copy, oath, and attendance to swear 
 
 122. The solicitor for preparing each exhibit in town 
 
 or country 
 
 Defendants. 
 
 123. Appearance, including attending to enter 
 
 For each additional defendant 
 
 124. For limiting defence in action for recovery of 
 
 land in appearance, besides above allow- 
 ance for appearance ; not to be allowed 
 when notice of limiting defence served 
 
 $ c. 
 
 1 GO 
 1 GO 
 
 1 00 
 
 4 00 
 
 20 
 10 
 10 
 
 1 GO 
 10 
 
 1 00 
 20 
 
 1 00 
 
 LOWKR 
 
 SCALK 
 
 ANIJ 
 
 County 
 Courts. 
 
 $ C. 
 
 50 
 50 
 
 50 
 
 2 00 
 
 20 
 
 10 
 10 
 
 75 
 10 
 
 50 
 10 
 
 50 
 
TARIFF OF COSTS. 
 
 1081 
 
 Lowicu 
 
 ScAIiK 
 AND 
 
 County 
 
 COUUTS. 
 
 $ C. 
 
 1 00 
 10 
 
 1 00 
 20 
 
 1 00 
 
 50 
 50 
 
 50 
 
 2 00 
 
 20 
 10 
 10 
 
 75 
 10 
 
 50 
 10 
 
 50 
 
 TABLE OF COSTQ' Continueil. 
 
 Judgment, Rulep, or Orders. 
 
 126. Drawing (a) minutes of judgment, or order, per 
 
 folio, when prepared by solicitor, under 
 
 directions of Registrar, or Judgment Clerk, 
 
 (or, in C. C. cases, of the C. C. Judge)... 
 
 Ameii(h'(l by .T. A. Kulc 544 (14) ho as to roii ' as above. 
 The orij^riiual itfin liud at (k) the word "special." 
 
 $ C. 
 
 20 
 
 126. Judgment for non-appearance on specially in- 
 
 dorsed writs, and in action for recovery of 
 land 1 00 
 
 127. Attending for appointment to settle or pasn 
 
 judgment, or order of Court, copy and 
 service i 1 30 
 
 128. When served on more than one party, the extra 
 
 copies and services are to be allowed. 
 
 129. For every hour's attendance before proper offi- 
 
 cer on settling or passing minutes 1 00 
 
 To be increased in the discretion of the officer 
 in special and difficult cases, when the 
 solicitor attends personally, to a sum not 
 excee'li'ig altogether 5 00 
 
 Lettehs. 
 
 139. Letter to each defendant before suit, only one 
 letter to be allowed to any defendants who 
 are in partnership, and when subject of 
 suit relates to the transactions of their 
 partnership 
 
 131. Common letters, including necessary agency 
 letters 
 
 Necessary letters between a sr)licitor and liis ajfeiit on tlio 
 bu.sineHS of the cause are taxal>le as b.tweeii party and party, 
 whether the age it resi<les in thi; county town of tlie county 
 in which the solicitor resides, or in another county, or in 
 Toronto : Agnew v. I'lunkett, P. R. 450. 
 
 50 
 50 
 
 LOWKU 
 
 Scale 
 
 AND 
 
 County 
 
 CoUUTS. 
 
 $ C. 
 
 20 
 
 50 
 50 
 
 50 
 
 2 60 
 
 25 
 25 
 
 ti. 
 
1082 
 
 TARIFFS. 
 
 2 00 1 00 
 
 5 00 2 00 
 
 TABLE 
 
 Necessary letters and attendaiUH^ incurr*-;! in oWtiiiiiiiig' the 
 decision of tire Taxiiijjr Officer in Toronto relating,' to eliargcH | 
 niH)ii wliicli a decision by liini is r(Mniire(f, in wgard to in- 
 creasing fees, etc., are taxable under item Kil. 
 
 132. With power to tlie taxing officer (or in C. C. 
 cases tlfc 0. C. Clerk, as between solicitor; 
 and client, to in^tcaso the fee for si)ecial| 
 and important letters, to an amount not, 
 exceeding 
 
 183. Postages — the amount actually disbursed. i 
 
 134. For C(n'respondeiice during the progress of anj 
 
 appeal to the Court of Appeal a reasonable! 
 
 sum in tlie discretion of the Taxing Officer 
 
 mav be allowed not exceedinj' 
 
 Sales by Master, oh Auci'ionkkii, or rkal Keprk- 
 
 SKNTATIVE IN PARTITION SuiTS. 
 
 135. Drawing advertisements for the sale of real or 
 personal estate under the direction of the 
 Court, including all copies, except for print- 
 ing 2 00 1 GO 
 
 And for each folio over five, per folio 20 15 
 
 (To be increased in the discretion of the Masterj j 
 
 (or in C. C. cases the C. C. Judge) to a| 
 sum not exceeding ten dollars, when s])ecialj 
 information has been procured for thej 
 purpose of sale.) | 
 
 13G. Copies for printing, per folio 10 ' 10 
 
 137. Each necessary atteTidanco on printer 50 ^ 25 
 
 138. Attending and making arrangiiracnts with { 
 
 auctioneer 100' 50 
 
 139. Revising proof ..! 1 00 50 
 
 140. Fee on conducting sale when held where solici- 
 
 tor resides i 5 00 ! 3 00 
 
TARIFF OF COSTS. 
 
 1083 
 
 1 
 
 Tjowkh 
 
 [(illEll 
 
 ■,v 
 
 CM.i:. 
 
 CUCNIY 
 CoCKTS. 
 
 
 
 II! 
 
 2 00 1 00 
 
 5 00 2 00 
 
 1 00 
 15 
 
 . 10 ' 10 
 50 I 25 
 
 1 00 
 1 00 
 
 50 
 50 
 
 3 00 
 
 LOWKU 
 
 Scale 
 
 TABLE OF CO^'l^H— Continued . 
 
 Ml 
 
 75 
 
 5 00 
 
 If solicitor is engaged for more than three hours, 
 for evtiy hour beyond that time 
 
 142. Fee on conducting sale elsewhere, besides all 
 
 necessary travelling and hotel expenses, 
 when solicitor attends with the approval 
 of the Master (or real representative) pre- 
 viousl}' given 
 
 If the sale occupies more than one day, the 
 Master may allow him, in addition to his 
 travelling expenses, pur diem, a sum not 
 exceeding twenty dollars. 
 
 The Master may also allow to one othi.^r party 
 to the suit his fees and expenses for attend- 
 ing sales, it', in his opinion, it is necessary 
 and proper that ho should attend. 
 
 MiSCELL.VNEOUS. 
 
 143. Statement of issues in Master's office, when re- 
 
 quired by the Master 
 
 In special matters to be increased in the dis- 
 cretion of the Taxing Officer in Toronto. 
 
 See ituiii 1(11. 
 
 144. For each folio over 10 20 20 
 
 145. When it has been satisfactorily proved that pro-. 
 
 ceedings have been taken by solicitors outj 
 of Court to expedite proceedings, save costs.! 
 or compromise actions, an allowance is to! 
 be made therefor in the discretion of thr 
 Taxing Officer in Toronto (or Judge of 
 County Court in C. C. cases). 
 
 Charges for procwdiiigs taken to save cxiH'nse are taxable 
 whotlier taken between the sDlicitors for the (larties or by one 
 party : Turrancc v. Tormncc, !( P. K. 1271. 
 
 See item Kil. 
 
 :i^. 
 
 2 00 1 00 
 
if 
 
 1084 
 
 TARIFFS. 
 
 TABLE OF CO^T^—Contiuhed. 
 
 Higher 
 Scale. 
 
 $ C. 
 
 Lower 
 
 SCALK 
 AND 
 
 County 
 
 CoUilTS. 
 
 $ C. 
 
 146. Drawing bill of costs as between party and 
 
 party for taxation, (including engrossing 
 and copy for Taxing Officer, or C. C. Clerk,) 
 per folio ! 30 
 
 147. Copy, per folio, to serve ; 10 
 
 As to the allow anco of costs of maps and plans, see Jink 1213. 
 
 Counsel Fees. 
 
 148. Fee on motion of course, or on motion in mat- 
 ters not special 
 
 A counsel fee of .Sa.lM) siuiuld he taxed on eacii necessary 
 and pmiier eiiliiixenient of a Court motion: McCdlum \, 
 McCitUiiui, 11 1'. K. 17!». 
 
 2 00 
 
 149. On special ex parte motion or application to the 
 
 Court, (only one counsel fee to be taxed)... 5 CO 
 
 See also Jlule 1210. 
 
 To be increased in the discretion of the Taxing 
 Officer in Toronto (or Judge of County 
 Court in C. C. cases, who shall mark 
 amount to be taxed on order of Court, if 
 any, before taxation) to ,10 00 
 
 See item IGl. 
 
 160. Fee on argument on supporting or opposing 
 application to the Court, or argument of 
 
 demurrer, special case, or appeal 10 00 
 
 On Higher Scale and Lower Scale to be increased 
 
 in the discretion of the Taxing Officer in! 
 
 Toronto. I 
 
 In C. C. cases to be increasrd in the discretion 
 
 of the Judge to. 
 
 See item 1(>1. 
 
 151. On consultations 
 
 See also A' «/f 1210. 
 
 152. Fee, with brief, on assessment 
 
 5 00 
 10 00 
 
 20 
 10 
 
 1 00 
 
 2 00 
 
 5 GO 
 
 5 GO 
 
 10 00 
 2 00 
 6 00 
 
TARIFF OF COSTS. 
 
 1085 
 
 153. 
 
 2 00 1 00 
 
 .110 00 5 00 
 
 g 
 
 .. ] 
 
 LO 00 
 
 5 00 
 
 m 
 
 
 3n 
 
 10 00 
 
 
 5 00 
 
 2 00 
 
 
 10 00 
 
 6 00 
 
 TABLE OF COST:^- Continued. 
 
 c. 
 
 Fee, with brief, at trial |10 00 
 
 To be increased by taxing officer in his discre- 
 tion to a sum not exceeding §40 to senior 
 counsel, and §20 to junior counsel, in 
 actions of a special and important nature, 
 Provided that the Taxing Officer in Toronto! 
 shall have pov. er to tax increased fees, but 
 more than one counsel fee shall not be 
 allowed in any case not of a special and 
 important nature ; not more than two in 
 any case, Provided that if an application 
 to increase fees be made in the first in- 
 stance to the Local Taxing Officer, and a 
 ^/iat granted, no application shall thereafter 
 be made to the Taxing Officer at Toronto. 
 To be increased by the Taxing Officer at 
 Toronto or the .1 udge (as the case may re- 
 quire) in actions of a special or nnportant 
 nature and on appeals to the Court of 
 Appeal, (on notice to the opposite party,) to 
 a sum not exceeding 
 
 See note to item Kil. j 
 
 (In C. C. cases no charge to be made l\v either| 
 party in connection with such application.); 
 
 This itfiii is to be i-fiiil as part of item H!4 : MeKtrn v. | 
 Snii/h (luim; 12 I'. K. 55H. 
 
 In arbitrations in Mnjjliind tiicrc is no ^'<■Il(■ral rule tliat 
 only one eo\insel fee siiouUl l)e allowed ; Orii-nl Slivm 
 .\'(trii/(iti(iii ('(I. V, (h-i'(Ui Miiriiii liisitrttaci: f ".,35 W. H. 771. 
 Hee note to item 1(14. 
 
 lender an order mac! at the Assizes ixjstponing the trial ii|K)n 
 jiaymentoftheeostsof thedav, theiilirase"costM)f theday■'ill- 
 cl^ldesonlyone(•ounsel feeof'!««l(l.(IO: //".-///v. ( V(f/-'/, ]•.> I'. H. 14. i 
 
 The midday adjotirnment of the Court was ht id not to !«■ | 
 inchided incomi)iitin(,'the timeoeciiiiied by a case : ('i'IUih-\. \ 
 Worbii, m L. T. N. .S 748. 
 
 K.'teejit in a stronp case a Jtidge on aiipeal will not interfere 
 discreticm exercised bv the Taxing' Officer : /'"".f v. 
 
 with th 
 
 Tonmio <!• Xi/iissiiii/ It;/., 7 P. R. ITi' 
 
 ,Sff notes to /!i'l'' 851. 
 
 \ co\msel fee p.aid to plaintiff's solicitor in an alimony suit 
 in II disbursement : /h/'-kv v. Buckr, 21 Gr. 77. 
 
 Lower 
 Scale 
 
 AND 
 
 County 
 Courts. 
 
 10 00 
 
 ^> 
 
 25 00 
 
1086 
 
 TAUIFFS. 
 
 lycUIKU 
 
 bcAIiE. 
 
 TABLE OF COSTH—Continued. $ c. 
 
 Where by the ri'sifniation of a .Tu(l(,'f a sccciul arguini'nt 
 was rciidcrod necessary, the drnrt allowed the sueeessful 
 partv the costs of both argunientH : /'/nit v. A I trill, T.) C. L. .1. 
 
 :!•l.s:■;{(^ L. T. ma 
 151. On arguraent or examination in Chambers in 
 
 cases proper for tl)e attendance of connsel 
 
 and where counsel attends \ 2 00 
 
 To bo increased in the discretion of the Master 
 
 in C hambers, or the Master in Ordinary in 
 
 High Court cases. 
 To be increased in the discretion of tlie Judge inj 
 
 C. C. cases to a sum not exceeding 
 
 Tliis item would a|))>ear to aiiply in taxa>,ions between soli- I 
 citor ;ind client as well as lietweeii piirtv and party : See | 
 A'-' ''/(«///»'//(, it li. 15. 1) L'M ; 1()<^>. I',. D/oI. ] 
 
 155. On argument of Appeal in the Court of Appeal, 
 
 in the discretion of the Taxing Oilicer at 
 Toronto, not exceeding $80 to the senior 
 counsel, and $50 to the junior counsel vin 
 ordinary cases larger fees than §49 to the 
 senior counsel and $20 to the junior coun- 
 sel not '0 be allo\ve(') in High Court cases 
 and in County Court appeals not exceeding 
 $25. 
 (Two counsel fees not to be allowed except in 
 dillicult and important cases.) 
 
 156. To attend reference to Master, C. C. Clerk or 
 
 Referee, when counsel neci'ssary 5 00 
 
 To be increased in special and important mat- 
 ters requiring the attendance of counsel, in 
 the discretion of the Taxing Olticei- in 
 Toronto, (or County Court Clerk in C. C. 
 cases,) not exceeding 
 
 See item Itil. See also l{iili \:1\{\. 
 
 157. Fee on drawing, and settling, allegations in 
 
 prifcipe for revivor, in special cases, proper 
 
 for opinion of counsel 2 00 
 
 LoWKB 
 
 HCAI.K 
 
 ANI) 
 
 CofNTY 
 
 Courts. 
 
 § C. 
 
 I CO 
 
 00 
 
 ;5 00 
 
 01 > 
 
 1 no 
 
TAUIFF OF COSTS. 
 
 1087 
 
 ti 00 I CO 
 
 1 58. 
 
 ir.i). 
 
 TABLE OF CO^T^-Continued. 
 
 1()0. 
 
 101. 
 
 lIlOIIKll 
 SlALK. 
 
 I 
 
 LOWEU 
 
 ScALK 
 
 AND 
 
 County 
 
 COCKTS, 
 
 V C. 
 
 $ C. 
 
 Wdiild >-tMiii iiiiili'i- this 
 uc'tidii. Ill I'lii^n.-iiid :i 
 after tlii' plradiii^rs iiro 
 
 00 2 00 
 
 To be increased in the discretion of Tiixing Olli- 
 cer, (or C. C. Clerk in C. C. cases,) to an 
 amount not exceeding 5 GO i 2 00 
 
 On settlinjj; pleadinf;;s, interrofjatories, special 
 cases or petitions, and advising on evidence 
 in contested cases, in the discretion of th( 
 Taxing Officer, (or C. C. Clerk in C. C 
 cases,) not exceeding i 5 00 i 3 00 
 
 See item 1(>1. 
 
 (hw. fee f(ir ii,(lvi.-iiii,' on e\iileiie( 
 item nil tluit (Jill he taxed in an 
 H.'Ciuid fee may he allnwed wlieie, 
 
 closed, aii<l ailviee on the evidence olitaiiied, the o|>]M)site 
 •(liirtv lias liy motion olitained a change of [ileading's : WicL- 
 sU;-(} V A'/,i//'/v, aU h. T. \. S. I'JS. 
 
 A fee revising a si.eeiid replv to a connter-claiin is lu'oper : 
 Mfxiiiuhr \. Srl,„ul Trii.-i/,rs, 11 I'. |i. 157. 
 
 On settling the appeal case and reasons for or 
 against appeal 
 
 To be increased in the discretion of the Taxing 
 
 Officer at Toronto in special and impo"tant 
 
 matters to a sum not exceeding 
 
 When any fee is subject to be increased, in the 
 discretion of the Taxing (M'ticer in Toronto, 
 either party to tbe taxation may, during 
 its progress, require that such item shall 
 be referred by the Local Taxing Officer 
 to the Taxing Officer in Toronto, whose 
 decision shall be final as to that item, but 
 this shall not prevent an appeal from such 
 taxation. 
 
 .Seo item HSl, 
 
 The necessary letters and attendances incurred 
 in obtaining the decision of the Taxing 
 Otticer in Toronto in any matters which 
 are in his discretion shall be allowed as 
 part of the costs of the cause. 
 
 20 00 : 5 00 
 
I. 
 
 1088 
 
 TAIIIFFS. 
 
 TABLE OF CO^T^— Continued 
 
 162. The Taxing Officer in Toronto may apply to a 
 Judge, or the Courts, on the taxation of 
 any item which is in his discretion, or is 
 referred to him. 
 
 168. No appHcation shall he allowed hy either solici- 
 tor, or counsel, to a Judge, or the Court, in 
 reference to any item which is in the dis- 
 cretion of the Taxing OfHcers in Toronto, 
 hut this is not to prevent an appeal from a 
 Taxing Officer. 
 
 See item 153. 
 
 164. On arhitrations, counsel fees may he allowed 
 and taxed on the same scale and conditions, 
 so far as possible, as those hereinbefore 
 prescrihed for counsel fees at trials. 
 
 Itt'in ITiH is to hi- read as part of tliis item, ami tiic Taxiiij,' 
 Otticcrs at 'roroiito have aiitiiority to consider the (jiiestioii 
 of iiicicased ooUlisel fees in tlie ease of an arliitratiou where 
 there is no <;aiise in (!oin't, an<l a reference to a local oHici'r 
 to tax costs has lieen nia<le under |{. S. (). ).S*<7, c. .">;{, s. 24 : 
 /{<■ M. Kiri, &, Siiilh (inirn; ll> I'. H. rht'X 
 
 As to the discretit)!! of the 'I'axin;,' < )tticer in ref^ard to fees 
 and exiieiises of arl)itratoi's, and in rej,'ard to the fees of 
 counsel on arhitrations; see He J/ilh/idi/ li- Jt'">/iil Inn. f'/.,12 
 P. 1{. 255. 
 
 As to whether more than one counsel fee can be taxed 
 mider tiiis item and item 154 V""'' ; Iv. S. (). \>^X~, e. 5.S, 
 .s. 25, |)r<pvid(^d that no more than one comisel fee should ije 
 taxed to eitiier jiarty for any meetin^r of arbitrators. I'os- ' 
 .sitily that section is now superseded iiy the |)rovisions of ■ 
 item ]5,'{. In arliitrations in Knj^'land there is no {general rule j 
 that only one comisel fee should he chart,'ed : Orir/i/ .>yci/»( - 
 Aiir. ('(I. V. Ocriiii Miirini' Jii". <'('., 35 W. I{. 771. ' 
 
 la taxing the costs of .an arbitration upon the County j 
 Court scale, no larger fee for attendance of counsel In-fore the 
 arl)itrators than .¥25 can Iw allowed, e\( u though the attend- ! 
 ance is for several days : .see item 1.53. j 
 
 Note 1. — In taxing costs between solicitor and 
 client, the Taxing Officer or County Court 
 Clerk, in County Court cases, may allow 
 for services rendered not provided for by 
 
 Lower 
 Scale 
 
 AND 
 
 CoUNTt 
 I COCRTB. 
 
 $ 0. 
 
TAniFF OF COSTS. 
 
 1089 
 
 TABLE OF CO^T^— Continued. 
 
 this tariff, a reasonable compensation as 
 far as practicable analogous to its provi 
 sious. 
 
 Note. 2. — On appeals to the Court of Appeal 
 where the fees are not above provided for 
 the same fees and allowances sliall be taxed 
 as are allowed for similar services in the 
 High Court or County Court, as the case 
 may he. App. 0. 28-51. 
 
 Th(iii«li a Taxiiiff Otticcr Ims a discri'titm in the taxation of 
 coHtH as iK'twcou jiurty anil inii'ty and tlic same discretion as 
 between solicitor and client, still it by no means follows that 
 what is reasonable in the former ease is also reasonable in the 
 latter : llf /lli/th & Fiuisliinrr, r>2 L. .F. Cliy. IMG. 
 
 A fee of ?26 a day wasallowed toa solicitor attending upon 
 the execution of a commission : (ircri/ v. S:nith, 7 C. L. T. 
 16H. 
 
 ]5efore incurrinfj any unusual expense, the solicitor should 
 inform his client that it was unvisiial, and obtain his sanction, 
 letting him know that the expense may not be allowed 
 between party and jiarty : Jlf />/"«(/ v. lifudd, 15(i. B. D. 252, 
 •120. See also liiilf 1215. A trustee was allowed co.sts out of 
 the estate of a |H>tition to cornet slip.s in a former petition : 
 In re Hnjijier'ti Trustn, 34 W. R. 3'.t2. A solicitor was disallowed 
 between solicitor and clientcosts occasioned by an inaccurate 
 statement in ))articulars of .sale, by reason of which the Court 
 of Ap|)eal held a piu'chaser not bound to complete his pur- 
 chase : Jle A'., 81 L. T. .Four. 6. The costs of journeys to 
 London by a country solicitor were, imder special circum- 
 .^taiices, allowed : Jn re Sl(rrer, 32 W. R. 7C7. 
 
 Lower 
 Scale 
 
 AND 
 
 County 
 
 (!0CUTB. 
 
 $ C. 
 
 .T.A. 
 
 69 
 
1090 
 
 TAItll'FS. 
 
 T-i^ZeiE^F' B. 
 
 TARirF Ol- DISBUKSKMHNTS. 
 
 [lii'i'vrred tn i)t Uiilf it.'LS.) 
 
 The following; fees and allowances shall bo taken and received by 
 the oi'ticers and persons herein mentioned in Civil Actions in 
 the High Court and Court of Appeal and in the Countv Com-tB 
 in lieu of all fees payable to those otlicu'rs and i>ersons under 
 the tarift's heretofore m force in the said Courts : — 
 
 Si'c iil'o sees. 155, 157, 1*)2, of tlif A(.t. 
 
 FEES TO 13E PAYABLK IN STAMPS Oli OTHER- 
 WISE TO OF Fl Clouts OF THE COUHT. 
 
 ( Incliinii'c i>f (ill i'l'fs f.rpri'sslij iiiiiiagi'd hij Sliitutc.) 
 EeGISTRAR of (JoURT of Al'IKAI,. 
 
 HlCtllKU ScAJ.E 
 
 HcAi.E. ; AM) 
 
 ] ClU'NTT 
 
 ContTH. 
 
 $ c. 
 
 Settin*:; down for argument (a) ' 4 00 
 
 On every judgment or order of the Court passed and; 
 
 entered (a) j 2 00 
 
 Certificate on discharging appeal i S)0 
 
 1? c. 
 
 50 
 
 ()n every order in Chambers 
 
 i'or other services the like charges as are to be taken 
 
 by the Registrars of the High Court for similar 
 
 services. 
 
 50 
 
 00 
 50 
 
 (d) Imposed by R. S. 0. 1S87, c. 44, s. 15(1. 
 
 Jiv.; I 
 
TAUIKK OK DISHL'UHKMKNTH. 
 
 1091 
 
 l,ii\vi;ii 
 
 HnillK.li S( A1,K 
 Hl'.VI.K. AM) 
 
 I C'dHNTT 
 COUHTB. 
 
 FEES TO BE I'AVAJiLE IN STAMPS— Co». 
 Mastkh in OiiniNAiiY, Local ^^ASTRUB, and Official 
 
 AND Sl'KCIAli ilEFEUKKa. 
 
 Filing and onterin*? jiidgiucnt or order in Master's 
 book 
 
 Every warrant or appointment 
 
 Administering,' oath or t;i,kin^' at'tirmation 
 
 Markin}» every exhibit 
 
 Drawing depositions (in infancy matters only) reports 
 or orders, per foUo, to include time occupied ... 
 
 Fair copy, per folio (when necessary) 
 
 Copy of papers given out when required, per folio ... 
 
 Every attendance upon any proceeding or enlarge- 
 ment thereof or selling property 
 
 For each additional hour 
 
 Fee on report signed (only one to be allowed in each 
 action or matter, on first report 
 
 Every certilicate, if not longer than two folios 
 
 For each folio over two 
 
 Filing each paper, or subsequent order 
 
 Taxing costs, per hour 
 
 Taxing costs including attendance 
 
 Making up and forwarding depositions, bills of costs 
 and proceedings in Master's office 
 
 Every special attendance out of office within two 
 miles, per hour occupied by reference or sale .. 
 
 I'^ver additional mile nbove two for travelling expenses 
 
 Every attendance on application to a Master in 
 Chambers 
 
 M very order in Cliambers 
 
 Searching files in office 
 
 Do. on Higher Scale same allowance as to Deputy 
 -Uej'istrar. 
 
 HlUHElt 
 8c ALB. 
 
 $ c. 
 
 LOWKB 
 
 BCAI.K 
 AND 
 
 County 
 
 CODUTH. 
 
 $ c. 
 
 20 
 50 
 20 
 20 
 
 20 
 10 
 10 
 
 50 
 50 
 
 2 00 
 50 
 20 
 
 10 
 
 1 00 
 
 2 00 i 
 
 20 I 
 
 1 00 j 
 50 ! 
 
 10 
 10 
 
 2a 
 
 10 
 
 20 
 10 
 10 
 
 50 
 50 
 
 Nil. 
 20 
 Nil. 
 10 
 
 80- 
 
 50 I 10' 
 
 50 
 10' 
 
 50 
 20 
 10 
 
v>, 
 
 ^. 
 
 %. 
 
 ^. 
 
 ^, 
 
 o.\^^<^ 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 t 
 ^ 
 
 A 
 
 O 
 
 /- 
 
 A^ 
 
 
 
 
 1.0 
 
 I.I 
 
 11.25 
 
 1.4 
 
 If IIM ilM 
 
 i^ IM III 2.2 
 
 !! m ^ 
 
 li: ii£ 12.0 
 
 6" 
 
 1= 
 
 1.6 
 
 <^ 
 
 /a. 
 
 
 
 /a 
 
 
 
 / 
 
 >!^ 
 
 Photographic 
 
 Sciences 
 
 Corporation 
 
 23 WEST MAIN STREET 
 
 WEBSTER, N.Y. 14580 
 
 (716) 873-4503 
 
.* 
 
 
 
 r/u 
 
1092 
 
 TARIFFS. 
 
 FEES TO BE PAYABLE IN STAMPS 
 
 Clerk of the Process, Clerk of Records and Writs, 
 Registrars, Local Registrars, Deputy Regis- 
 trars, Deputy Clerks of the Crown, Clerk in 
 Chambers, Accountant and Taxing Officers in 
 THE High Court, and the Clerks of the 
 County Courts. 
 
 Every Writ i 50 
 
 Every Concurrent, Alias, Pluries or Renewed Writ...| 50 
 
 Additional on every Writ by Statute {h) ! 50 
 
 Every appearance entered, and filing memorandum 
 
 thereof | 20 
 
 Every appearance, each Defendant after the first...; 10 
 Filing every Affidavit, Writ, or other proceeding...; 10 
 
 Amending every Writ or other ])roceeding i 30 
 
 Upon payment of money into Court 30 
 
 Upon payment of money out of Court 30 
 
 Passing and certifying Record (payable in sash to 
 Deputy Clerks of the Crown,. Local Registrars 
 
 and Deputy Registrars not paid by salary) ; 1 00 
 
 Entering action for trial or assessment (including, 
 H. C. cases entere^i for trial at C. C.) payable 
 in actions in the Chancery Division to the 
 present Deputy Registrars so long as they retain 
 office and are not paid by salary ; in other cases 
 payable to the Deputy Clerk, Local Registrar or| 
 
 Clerk of Assize ' 2 00 
 
 (The fee of $2 payable by Statute to be payable inj 
 cash to Deputy Clerics of tin Crown, Local! 
 Registrars and Deputy Registrars not paid by 
 salary. An additional fee of $5 cash to be also 
 paid to the present Deputy Registrars so long 
 as they retain office and arc not paid by salary.) 
 
 (b) Impost'd by K, S. O. 1887, c. 44, s. 155, and payablo in stamps. 
 
 50 
 40 
 
 15 
 10 
 10 
 
 25 
 30 
 80 
 
 50 
 
 50 
 
TARIFF OF DISBURSEMENTS. 
 
 109S 
 
 
 Lower 
 
 
 Scale 
 
 HKK 
 
 
 
 AND 
 
 ,LE. 
 
 County 
 
 
 C0C»T9. 
 
 c. 
 
 $ C 
 
 50 
 
 i 50 
 
 ) 50 
 
 1 40 
 
 ) 50 
 
 
 ) 20 
 
 ' 15 
 
 ) 10 
 
 10 
 
 ) 10 
 
 i 10 
 
 30 
 
 1 25 
 
 80 
 
 30 
 
 BO 
 
 30 
 
 00 I 50 
 
 50 
 
 FEES TO BE PAYABLE IN STAMPS— Coh. 
 
 On setting down on the paper for argument every 
 
 demurrer or special case 
 
 Additional fee payable by Statute {(>) 
 
 Setting down a cause for any other purpose 
 
 Subpcena, including filing PriEcipe 
 
 Additional fee by Statute (h) 
 
 Every lleference, Inquiry, Examination, or other 
 special matter for every meeting not exceeding 
 
 one hour 
 
 Every Reference, Inquiry, Examination, or other 
 special matter for every additional hour or lesh 
 
 These items do not include attendances on settling Minutes 
 of Judgment : Boyd, C, 2!tth September, 1888. 
 
 Lower 
 
 HlOIlER 
 
 Scale. 
 
 OCAliK 
 AND 
 
 County 
 
 
 Courts. 
 
 $ C. 
 
 $ c. 
 
 20 
 
 20 
 
 30 
 
 
 50 
 
 6 20 
 
 50 
 
 20 
 
 50 
 
 
 1 00 
 
 75 
 
 Fee on report made on such reference, etc 
 
 Attending on opening Commission 
 
 Every Certificate made evidence by law, or required 
 by the practice, including any necessary search 
 
 Additional fee where Seal is reciuired (h) 
 
 Every Certificate for Registration 
 
 Additional fee for seal of Court or office (//) 
 
 Entering Certificate of Title or Conveyance, per folio 
 Every ordinary Rule or Order 
 
 Additional fee by Statute (/>) 
 
 Every Special Rule or Order, not exceeding si\ folios 
 per folio 
 
 Additional fee by Statute (h) 
 
 Every Chamber Order 
 
 Every Interlocutory Judgment or Judgment bv 
 Default. 
 
 Additio''al fee by Statute ih) 
 
 Every Final Judgment otherwise than Judgment by 
 Default 
 
 Additional fee by Statute (//) 
 
 00 
 00 
 
 50 
 50 
 
 50 
 50 
 10 
 30 
 20 
 
 20 
 20 
 50 
 
 50 
 GO 
 
 50 
 60 
 
 (/>) Imposed by R. S. O. 1887, o. 44, s. 15.5, and payable in stamps. 
 
 1 00 I 50 
 
 1 00 
 50 
 
 
 
 50 
 
 20 
 
 
 
 10 
 
 
 
 30 
 
 
 
 20 
 
 50 
 30 
 
 50 
 
 )i» 
 
' 
 
 1094 
 
 TARIFFS. 
 
 FEES TO BE PAYABLE IN STAMPS— t'o». 
 
 Taxing Bill of Costs, and giving allocatur or certificate 
 Additional fee by Statute {h) 
 
 Entering Order when necessary, per folio 
 
 Taking account on Pra3cipe Judgment 
 
 Exemplification, or office or other coj^y of papers or 
 proceedings required to be given out, per folio, 
 
 besides certificate and seal when required 
 
 Additional fee by Statute for Seal of Court {b)... 
 
 Examining and authenticating papers when copies 
 prepared by Solicitor — every three folios 
 
 Every search, if within one year 
 
 Every search, if over one year and within two years 
 
 Every search, if over two years, or a general search 
 
 Every Affidavit, Affirmation, etc., taken before them 
 
 Every Allowance and Justification of Bail 
 
 Taking Eecognizance of Bail 
 
 Entering Satisfaction on Eecord, and filing Satisfac- 
 tion piece, including any necessary search ... 
 
 Every Commission for the Examination of Witnesses 
 
 Making up and forwarding papers, including bills ot 
 costs 
 
 Every Commission for taking Bail and Affidavit (to 
 be on parchment) 
 
 Entering Exoneretur in Bail piece 
 
 Making up Eecords of Conviction, or of Acquittal 
 per folio 
 
 Entering and Docketing Judgment 
 
 For making the Entry required in the Debt Attach 
 ment Book and in Cognovit Book 
 
 HlOBEU 
 
 Scale. 
 
 $ 
 
 c. 
 
 
 
 70 
 
 
 
 20 
 
 
 
 10 
 
 1 
 
 00 
 
 
 
 10 
 
 
 
 50 
 
 Clerks of the County Courts {Additional). 
 
 Every Verdict taken, non-suit, Jury discharged, 
 Eecord withdrawn, or rule or order of reference 
 at the trial 
 
 05 
 o 10 
 20 
 50 
 20 
 30 
 "0 
 
 50 
 
 1 00 
 
 50 
 
 2 00 
 30 
 
 10 
 50 
 
 50 
 
 LfnvKU 
 
 Hc.M.K 
 AN]) 
 
 County 
 
 COUUTS. 
 
 $ C. 
 
 80 
 
 10 
 50 
 
 10 
 
 05 
 U 10 
 10 
 20 
 20 
 
 30 
 50 
 
 10 
 
 6' 20 
 
 50 
 
 50 
 
 {h) Imposed by R. S. O. 1887, c. 44, s. 155, and payable in Ktamps. 
 
TARIFF OF DISHURSKMENTS. 
 
 1095 
 
 
 LoWKll 
 
 lOIiEU 
 icAI.K. 
 
 SCALK 
 AND 
 
 Cduntv 
 
 
 CoruTs. 
 
 $ c. 
 
 $ c. 
 
 70 
 
 80 
 
 U 20 
 
 i\ -1 r\ 
 
 (\ -1 A 
 
 00 
 
 .^0 
 
 50 
 00 
 
 50 
 
 U 10 
 
 05 
 10 
 10 
 20 
 20 
 
 30 
 50 
 
 10 
 
 20 
 
 50 
 
 50 
 
 HlOHKU 
 
 Scale. 
 
 FEES TO BE PAYABLE IN STAMPS— C^/(. 
 
 Di awing Appointments made by the Judge 
 
 Attending at every special hearing before the Judgej 
 under II. S. 0. 1887, e. 53, s. 1, and at taking 
 Examinations and Evidence and at Sittings in 
 reference to C. C. Judge from the H. C. not 
 exceeding one liour 
 
 Every additional hour or less 
 
 Every appointment for taxation of costs or otherwise, 
 made by C. C. Clerk 
 
 Every meeting under E. S. 0. 1887, c. 53, s. 9, not 
 exceeding two hours 
 
 For each additional hour or less fto be taxed by the 
 C.C. Judge) 
 
 For every Jury sworn 
 
 Every enlargement on application to the Judge in 
 Chambers, including search, if inarked by the 
 Clerk 
 
 $ e. 
 
 Deputy Rkgistraus not Paid by Salary. 
 
 ''Additional, onhj so lonq as the. present oficers retain 
 office and are not paid bif salary. 
 
 Marking erery exhibit produced on the examination 
 of witnesses . . 
 
 Swearing each witness 
 
 Attending on inspection of documents, produced witb 
 affidavits on production, per hour 
 
 Special Examiner. 
 
 Every appointment 
 
 Administering oath or taking attirmation 
 
 Marking every exhibit 
 
 Taking depositions per hour 
 
 Fair copy for Solicitor, per folio (when required). 
 
 ,. 20 
 
 20 
 
 1 00 
 
 Low En 
 
 t-CAI.K 
 AN 1 1 
 
 County 
 
 COUHTS. 
 
 % C. 
 
 25 
 
 50 
 50 
 
 10 
 2 00 
 
 1 00 
 1 00 
 
 15 
 
 50 
 
 10 
 
 20 
 
 20 
 
 20 
 
 20 
 
 I 50 
 
 75 
 
 10 
 
 10 
 
.•ft:»ii;- - ^ ', 
 
 1096 
 
 TARIFFS. 
 
 FEES TO BE PAYABLE IN STAMPS— Con. 
 
 Referee of Titles. 
 
 Every Warrant or Appointment 
 
 Administering Oath or taking Affirmation 
 
 Marking every exhibit 
 
 Drawing depositions, reports or orders, per folio 
 
 One fair copy when necessary, per foUo 
 
 Copy of papers given out when required, per folio ... 
 
 Every attendance upon a reference 
 
 For each additional hour 
 
 Every certificate 
 
 Filing each paper 
 
 Taxing costs, including attendance 
 
 Making up and forwarding answers and depositions 
 
 Every special attendance out of office within two miles 
 
 Every additional mile above two 
 
 Reading affidavit, per folio 
 
 Matter added, per folio 
 
 Searching files in office 
 
 Every deed in the chain of title other than satisfied 
 mortgages 
 
 Drawing and engrossing certificate of title or convey- 
 ance in duplicate 
 
 For other fees chargeable see Rules 1033, 1036. 
 
 20 
 
 50 
 
 Every attendance out of ofBce when within two miles 
 
 Every attendance over two miles out of office — extra 
 
 per mile 
 
 Every certificate 
 
 Making up and for irding answers, depositions, etc., 
 including filing Praacipe 
 
 For every attendance upon an appointment, when 
 solicitor or witnesses do not attend and examiner 
 not previously notified 1 00 
 
 Higher 
 Scale. 
 
 !tt> c. 
 2 00 
 
 Lower 
 Scale 
 
 AND 
 
 County 
 Courts. 
 
 30 
 20 
 
 
 
 20 
 
 
 
 20 
 
 
 
 10 
 
 
 
 10 
 
 1 
 
 00 
 
 1 
 
 00 
 
 50 
 
 
 
 10 
 
 1 00 
 
 m 
 
 1 00 
 20 
 
 
 
 02 
 
 
 
 20 
 
 
 
 20 
 
 
 
 50 
 
 4 
 
 00 
 
 $ c. 
 
 5C 
 
 10 
 25 
 
 50 ! 25 
 
 50 
 
TAl.lFF OF DISUUR8EMENTS. 
 
 1097 
 
 2 00 ! 5C 
 
 50 ! 25 
 
 HlftHKU 
 BCALE. 
 
 FEES TO BE PAYABLE IN STAMPS— C(^u. $ c. 
 Real Reprkbbntative. 
 
 The Real Representative acting under the Act 
 respecting the partition and sale of Real Estate 
 (R. S. 0. 1887, c. 104), shall, in the case of pro- 
 ceedings being instituted in the High Court or 
 a County Court, be entitled to demand and 
 receive for all services performed by him under 
 the said Act, the same fees as nearly as may be 
 as are allowed to Local Masters or Special 
 Examiners for similar services. Rule of Q. B. 
 and C. P., 6th Junp, 1878. 
 
 Crieii. 
 
 Calling every case, with or Vr'ithout jury GO 
 
 Swearing each witness, or constable i 15 
 
 LowKn 
 
 SCALK 
 AND 
 
 County 
 
 CoORTB. 
 
 $ c. 
 
 Commissioners. 
 
 20 
 50 
 
 For taking every affidavit 
 
 For taking every recognizance of bail 
 
 For lUarking every exhibit 10 
 
 Allowance to Witnesses. 
 
 A jilaintifF is not bound to rely on tlie admissions of the 
 defendiint.s in the examination for disoovcry and the costs of 
 witnesses called to prove facts thus adnutted are taxable : 
 A/r.auidcr v. Schmil Truster.'', 11 P. R. 1,57. Tlie costs of wit- 
 ni'sses called to prove irrelevant matters slu luld not be all( iwed : 
 r/iri.sf(i/j/irr V. Xit.TJ'ii, 10 1*. H. 1 K». When the witness is 
 siibp(enaed and not called the 'raxinp officer may in<iiiire into 
 the practicability and necessity of subp(Dnainf,'theni : Mr [.ran 
 V. A')vf(t.s 3 P.' R. 154; and see Kr /'rcsmtt Mlrctim,, .S2 
 U. C. Q. B. 303. The extra costs of witnesses occasioned by 
 trying the action out of the county where the witnesses 
 reside may be disallowed by a .ludge to a successful i)iirty; 
 see Lrdi/ard v. MrLcan, 18 (4r. 13!t, where such costs were 
 disallowed t<j a successful defendant. • 
 
 50 
 15 
 
 20 
 50 
 10 
 
1098 
 
 TARIFFS. 
 
 fp:.es to be payable in STA:^rps-ro». 
 
 I IlKiHKl 
 
 $ C. 
 
 LoWKIl 
 
 ScAM'. 
 
 AM) 
 
 CorNTY 
 
 tloUKTS. 
 
 $ 
 
 1 
 
 00 
 
 The Miwtcr iniiy cxiiiiiiiu' into the trutli of an iitHdiivit nf j 
 
 (lisbiir.seinciits for witness fccfs, or connscl's receipt for fees: | 
 
 Dili" (lem. /ioiiltdii V. Sioil~.IT, 1 C, L. C!li. S3 ; lluni v. Lusher, I 
 
 21 \k C. (.1 B. 3511. j 
 
 To witnesseB i-esifliiij,' within three miles of the courti 
 house, per flieni 
 
 To witnesses residiii*; over three miles from the courl 
 house 
 
 Barristers and solicitors, physicians and surgeons,! 
 other than parties to the cause, when called 
 upon to give evidence, in consequence of any 
 professional service rendered by them, or to give 
 professional opinions, per diem i 00 
 
 Engineers, surveyors and architects, other than, 
 parties to the cause, when called upon to give 
 evidence of any professional service rendered by 
 them, or to give evidence depending upon their 
 skill or judgment, per diem 
 
 An auctioTieer Wivs held entitled to fees as a i)rofe»sional 
 witness in II' \Viir/:iii;/ini'n's Mutiiul Sm-., •21 Ch. 1). S31, and | 
 it was there hold also that the witness tlumsh sworn niiirlit j 
 refuse to answer until paid the fee to wliicli he was I'utitled. 1 
 
 An officer of tin; Court subixenaed to proiluee public; j 
 documents in his custody was held to be entitled to piofes- ] 
 sional witness fees of §4 a day : Re .Vtisini, 2 (Miy. (^h. 2")2 ; i 
 but this Would not seem to be proper under the iiresent I 
 tariff. 
 
 If witnesses attend in one case only, they will be 
 entitled to the full allowance. If they attend in 
 more than one case, they will be entitled to a 
 proportionate part in each cause only. 
 
 The -travelling expenses of witnesses, over three 
 miles, shall be allowed, according to the sums 
 reasonably and actually paid, but in no case 
 shall exceed twenty cents per mile, one way. 
 
 See I'iauxii v. Tritsteex a/ M<iri/port Harbour, W. N. 1884, j 
 
 85 ; 28 Sol. Jour. 3!)1, where costs of keeiiing a witness until | 
 the trial were allowed under special circumstances. The 
 
 Ontario Rules and Tariff do expre.ssly authorize such an I 
 
 allowance. ; 
 
 See also The City «f Lwknmv, 51 L. T. N. S. !>07. | 
 
 1 00 
 
 J 00 
 
 5 
 
 4 00 I 4 00 
 
 I 
 
TARIFF OF DIHUUHSEMENTa. 
 
 1095) 
 
 •4 00 i GO 
 
 4 00 ! 4 00 
 
 FEES TO BE TAYABLE IN STAMPS— r-//. 
 
 The expeiiHt of witiifssci .siibiML'iiiU'd liut not callcfl iiiiiy lie 
 allowed in the fliscrction <if tlic Tiixiti^,' Ofticcr, li\it wci-c di.i- 
 allowi'd wlif-rc tiio cvidciicerNiJit'tcd tioiii the witnesses was 
 ii|)|iareiitly of no value, and tliey were sulijuenaed from abnn- 
 dance of uautioii ; J!i-tl(/iiii//iin v, /)rii-/iini'iiii,i<*) L.'l'. .Iciur. L'L'li. 
 
 AinonKst the costs of the day Lfiven to a clefendant on an 
 adjoununent of tl\e trial, his expenses wert/ allowed wiient his 
 counsel oertihed that he (:<iuld not hnve jiroceeded without 
 liiia ; and it was iield that it was premature to say at that 
 stiifre of the cause that no material i^vidence could lie friven 
 by defendant : aoudjVlluir v. Skiil/l< in.ri/i, ;U'. ],. T. 10,"). 
 
 The travelliiiK ex])enses of a iilaintiff who was a necessary 
 and material witness in his own behalf, and came from Knj,'- 
 land to givi' evidence at the trial, were allowed : J''i'X v, 
 Tdfiintd A' .\'i/ii.'<!iiiiii /!;/. ''"., 7 !'• K. ITi?. 
 
 The costs of executin,!,' a commission are entirely in thedis- 
 cretion of the Taxinj,' Oflicer : J/'. S( e also Cvllmrnc v. 
 Tlumvis,, 4 (ir. 1(11). 
 
 The aminnit to be allowed for jirocuriup the attendance of 
 witnesses who live o\it of the jurisdiction is in the discretion 
 of the Taxint; Othcer, and is not limited to the amovnit here 
 Nl)ecitied : />'('// v. Cnnnjilim ('oi:-<i.l ('a., 11 1*. H. 2r)(Jj .see also 
 note to /.'«/<• 1220. 
 
 N.B. — In all applications and proceedings before the 
 County Court Judges not relating to suits insti- 
 tuted in any Court of Civil Jurisdiction there 
 shall be payable to the Clerks of the County 
 Courts the same fees as in this Table as far as 
 the same are applicable. 
 
 LoWEU 
 
 SCALK 
 
 AND 
 
 County 
 (;<)uin'8. 
 
 $ e. $ c. 
 
V.' 
 
 « '■ 
 
 1100 
 
 TARIFFH. 
 
 X-Zi-IEBIZ^IF^ O. 
 
 FEES OF SHERIFFS AND CORONERS 
 
 IN (UVIL MATTERS. 
 
 {Referred to in Rule 0^,1:3.) 
 
 HlOHEIt 
 
 HCALE 
 
 FEES PAYABLE TO SHERIFFS AND CORONERS. S c. 
 Geneual Matters. 
 
 Receiving, filing, entering and indorsing all Writs, 
 Pleadings, Rules, Notices or other papers, each 
 
 Return of all Process and Writs, except Suhposnas.... 
 
 Return of Pleadings, Rules, Notices or other paperb 
 
 Every search, not being by a party to a cause or his 
 Solicitor 
 
 Certificate of result of such search, when required (a 
 search for a Writ against lands of a party shall 
 include sales under Writ against same party, 
 and for the then last six months) 
 
 Where a certificate respecting executions against 
 lands is required, the Sheriff, if so requested, is 
 to include in one certificate any number o 
 names in respect of which the certificate may be 
 required in the same matter or investigation, 
 but shall be entitled to the same fees as if one 
 
 IiOWER 
 
 SCALK 
 
 AND 
 
 (,'OUNI'Y 
 
 Courts. 
 
 S e. 
 
 2o 
 
 10 
 
 50 
 
 25 
 
 25 
 
 15 
 
 30 30 
 
 75 75 
 
TARIFF OF FEKS OF SHKRIFFS, ETC. 
 
 1101 
 
 30 30 
 
 HlOHKU 
 
 Scale. 
 
 FEES OF SHElllFFS AND CORONEES— Co». 
 
 iji c. 
 
 certificate were given for each name, provided 
 that no greater sum than $4 sliall be charged or 
 collected in respect of such certificate. (,"50 V. 
 c. 7, s. 5.) 
 
 Every Warrant to execute any Process mesne or final, 
 
 directed to the Sherifi", when given to a liailitt'...; 75 
 
 Every Jury sworn, or cause tried before a Judge 1 00 
 
 Every Letter written (including copy) required by 
 party or his Solicitor respecting Writs or Process, 
 when postage prepaid , 50 
 
 Drawing everv affidavit wlien necessary and prepared 
 
 by Sheriff ". 1 25 
 
 Service of Process and Papers, 
 
 Service of non-bailable Process, each defendant (no 
 fee for Affidavit of Service in such cases to be 
 allowed, unless service made or recognized, by 
 Sheriff ; on Lower and County Court scales, 
 including affidavit of service) 1 50 
 
 Serving Subpoenas, Eules, Notices, or other papers 
 
 (besides mileage) j 75 
 
 For each additional party served ' 50 
 
 Actual and necessary mileage from the Court Jiouse 
 to the place where service of any Process, 
 paper or jn-oceeding is made, per mile 13 
 
 Arrest and Attachment. 
 
 Arrest when amount does not exceed $200 
 
 " $400 
 
 over $400 
 
 Bail Bond or Bond to the limits 
 
 Assignment of the same 
 
 Mileage going to arrest when made, per mile 
 
 " conveying party arrested from place of arrest 
 to the gaol, per mile 
 
 LOWKR 
 
 Sl'ALK 
 
 AND 
 
 County 
 
 COUHTS. 
 
 $ c. 
 
 50 
 80 
 
 30 
 25 
 
 1 00 
 
 50 
 25 
 
 13 
 
 2 00 
 
 2 00 
 
 4 00 
 
 4 00 
 
 G 00 
 
 
 2 00 
 
 1 00 
 
 1 00 
 
 25 
 
 13 
 
 13 
 
 13 i 13 
 
v 
 
 
 1102 
 
 TAHIFFP. 
 
 \ 
 
 
 
 I>oWF.l: 
 
 HcALK 
 
 AND 
 
 (loUNTY 
 
 f'nUHTS. 
 
 FEES OF SHERIFFS ANT) CORONERS -ro«. ! $ c. $ c. 
 
 Bringing up PriHoner on attaclinieiit or lldbcdH 
 Corpus, beHides travel at 2()c'. per mile 
 
 Cei'tiHcati' of Surreniler of I'rinciiiiil by Imil Ji^l 00. 
 
 Hfo Kiilc 1(104. 
 
 AUSCONDINO DkBTOUS. 
 
 Seizing estate and el'fecta on attaclnuont against an 
 absconding debtor 
 
 Valuators, each 
 
 Removing or retaining property, reasonable and 
 necessary disbursements and allowances to be 
 made by the Taxing Officer, or in tlie C. C. by 
 order of the Court or a Judge. 
 
 Drawing Bond to secure good:; ta^en under an attach- 
 ment against an absconding debtor; if prepared 
 by Sberiff 
 
 1 50 1 00 
 
 3 00 
 1 00 
 
 RliPLKVIN. 
 
 Precept or Warrant to Bailiff in Replevin 
 
 Drawing Notice for Service on Defendant in Replevin 
 Delivering Goods to the party obtaining the Order of 
 
 Replevin 
 
 For Writ De Retonio Ilnhnido 
 
 Drawing Replevin Bond i 2 00 
 
 75 
 
 75 
 
 3 00 
 
 1 00 
 
 Assignment 
 
 All necessary disbursements for the possession, care 
 and removal of property taken in Replevin. 
 
 JURIKS. 
 
 50 
 
 50 
 
 5 00 
 
 Fee on striking ; 2 50 
 
 Notice of Appointment for ballot of Jury 
 
 Notice to Clerk of Peace of such appointment. 
 Fee on balloting Special Jury. 
 
 1 00 
 
 1 .lO 
 1 00 
 
 1 50 1 50 
 
 40 
 
 40 
 
 1 50 
 
 50 
 
 1 00 
 -25 
 
 25 
 
 25 
 2 60 
 
 1 25 
 
TAUirr OF KKKS OF HHKIilFFS, KTC. 
 
 IIOJJ 
 
 illilllKU 
 Si AI.K. 
 
 LoWEll 
 
 KCAI.R 
 
 AMI 
 ( 'oUNTY 
 CdtMITW. 
 
 $ c. : $ c. 
 
 I 
 
 1 50 i 1 00 
 
 3 00 
 1 00 
 
 in 
 of 
 
 ire 
 
 1 no 
 
 1 00 
 
 1 50 1 50 
 
 75 
 
 75 
 
 3 00 
 
 1 00 
 
 2 00 
 1 00 
 
 40 
 
 40 
 
 1 50 
 
 50 
 
 1 00 
 
 -25 
 
 50 
 
 25 
 
 50 
 
 25 
 
 5 00 
 
 2 50 
 
 2 50 1 
 
 1 25 
 
 I IIlOIIKII 
 
 Scale. 
 
 I LOWBB 
 
 RCALK 
 
 ANIi 
 
 i CloCSTt 
 
 I COOKTB. 
 
 FEES OF SHERT^FS AND COTIONEllS— rn//, i? c. $ c. 
 
 Serviiif? cue;!! Special Juro. bi'sidcs inilo!if,'e at IBc.i 
 
 \)v.i' luik') ' ijO 
 
 Retunnii<,' Panel of Special Jurors 1 00 
 
 Keeping nud clie<-kinf,' pi>y list of Special Jurors' 
 attenclanco, in each case 
 
 Sai.ks, FouNnA(u:, Ivn;. 
 
 1 00 
 
 Poundaf^e on Executions, and ou attaclnnents in tlie 
 nature of J'lxecutions, where the sum made shall 
 not exceed 15)1,000 dii the C. C. on the sum mad( 
 
 Where the snm is over $ 1,000 iind under i?l,000, 
 upon the excess over !t;i,l>U() (in addition to the 
 poundage allowed U[) to i^l.OOO) 
 
 Where the sura is §4,000 and over, upon the excess 
 over §4,000 (in addition to the poundage 
 allowed up to §4,000) 
 
 (Exclusive of mileage, for going to seize and sell, and 
 of all disbursements necessarily incurred in 
 the care and removal of property.) 
 
 Schedule taken on Execution, attach.nent or otlier 
 process, including co[ty to Defendant, not exceed- 
 ing 5 folios 
 
 Each folio above 5 
 
 Drawing advertisements when required by law to be 
 published in the official (iazeite or other news- 
 paper, or to be posted up in a Court House or 
 other place, and transmitting same, in each suit 
 
 Every necessary notice of Sale of Goods (not more 
 than 3), in each suit 
 
 Every notice of Postponement of Sale, in each suit... 
 
 The sum actually disbursed for Advertisements, 
 required by law to be inserted in the official^ 
 Gazette or other newspaper. ' 
 
 25 
 
 50 
 
 1 00 
 
 (■( i>i-Y ct.S ^ler ct. 
 
 :j [lur I'i 
 
 lilKi'ct. 
 
 1 
 
 00 
 10 
 
 50 
 10 
 
 1 50 75 
 
 75 
 25 
 
 40 
 20 
 
1104 
 
 TARIFFS. 
 
 HiGHKR 
 
 Scale. 
 
 FEES OF SHERIFFS AND COR0iNERS-Co«. 
 
 Sequestuation. 
 
 Upon seizure of estate and effects under writ of 
 sequestration 
 
 Schedule of goods taken in execution (including copy 
 for defendant) if not exceeding five folios 
 
 Each folio above five 
 
 Removing or retaining property, reasonable and 
 necessary disbursements and allowances to be 
 made by the Taxing Officer, or by the order of 
 the Court or Judge. 
 
 (Poundage upon sequestration followed by sale and 
 collection — as on other executions.) 
 
 Writ of Possession. 
 
 Executing Writ of Possession and serving and execut- 
 ing Writ of Restitution, besides mileage 
 
 Hab. Fac. Seisin. 
 
 Viewing Lands, and instructing Surveyors under 
 
 Hab. Fac. Seisin, exclusive of mileage, per day 
 
 Giving Possession, exclusive of mileage and assistance 
 
 All necessary disbursements to surveyors and others 
 
 for surveying the lands and giving possession, 
 
 to be allowed to the Sheriff. 
 
 On A View by a Jury. 
 
 For travelling expenses to the Sheriff, Shewers, and 
 Jurymen — Expenses actually paid, if reasonable 
 
 Fee to the sheriff, when the distance does not exceed 
 five miles from his office 
 
 Where such distance exceeds five miles 
 
 In case he shall be necessarily absent more than one 
 day — then for each day after the first, a further 
 fee of 
 
 LowRu 
 Scale 
 
 AND 
 
 County 
 
 COUIITS. 
 
 $ C. 
 
 4 00 1 1 GO 
 
 1 00 
 10 
 
 G 00 
 
 00 
 
 00 
 
 2 00 
 
 3 00 
 
 3 00 
 
 50 
 10 
 
 2 00 
 
TARIFFS. 
 
 1105 
 
 Higher 
 Scale. 
 
 FEES OF SHERIFFS AND CORONEES— Co». 
 
 Fee to each of Shewers— the same as to the Sheriff, 
 
 calculating, etc. 
 
 Fee to each common juryman, per diem 
 
 Fee to each special juryman, per diem 
 
 Allowance for refreshment to the . Sheriff, shewers 
 
 and jurymen, common or special, each, per diem 
 To the Sheriff for summoning each juryman, whose 
 
 residence is not more than live miles distant 
 
 from the Sheriff's office 
 
 And for each whose residence exceeds five miles from 
 
 Sheriff's office 
 
 Rules T. T. 1856, 39. 
 
 WuiT OF Inquiry, Escheat, Etc. 
 
 Presiding or attendance on execution of Writ or 
 Enquiry, or under any Writ of Escheat, or other 
 Writ of a like nature 
 
 Summoning each Juror in such case 
 
 Bailiff's Fee summoning Jury, mileage per mile 
 
 Hire of Room, if actually paid, not to exceed $2 per 
 day •■ 
 
 Mileage from the Court House to the place where 
 Writ executed, per mile 
 
 Coroners. 
 
 The same fees shall be taxed and allowed to 
 Coroners for services rendered by them in the ser- 
 vice, execution and return of process, as allowed to 
 Sheriff's for the same services as above specified. 
 
 $ c. 
 
 00 
 00 
 
 1 00 
 
 40 
 
 60 
 
 5 00 
 50 
 13 
 
 13 
 
 Lower 
 
 Scale 
 
 AND 
 
 County 
 Cochts. 
 
 $ C. 
 
 4 00 
 50 
 13 
 
 13 
 
 ( ^nea) JOHN H. HaGARTY, G.J.O. (Signed) W. PROUDFOOT, J. 
 " GEO. W, BURTON, J.A " THOMAS FETIGUSON, J 
 
 C. S. PATTERSON, J.A. 
 F. OSLER, J.A. 
 J. A. BOYD, G. 
 THOMAS GALT, C. J., C.P.D. 
 J. D. ARMOUR, C.J., Q.B.D. 
 
 .F.A. 
 
 JOHN E. ROSE, J. 
 THOMAS R0]31':RTS0N. J. 
 W. G. FALCONBRIDGE, J. 
 W. P. R. STREET, J. 
 HUGH MacMAHON, J. 
 
 70 
 
T^ -A. 15 11^ e: 
 
 OF 
 
 ROLES, ORDERS AN!) PARTS OF STATUES 
 
 CONSOLIDATED, 
 
 RULES OF TRINITY TERM, 185G. 
 
 RULES OF TRINITY TERM, 1850. 
 
 **^ 
 
 
 
 6 
 
 'A 
 
 Con. Eule. 
 
 Remakks. 
 
 "a 
 « 
 
 6 
 
 ^, 
 
 25 
 20 
 27 
 28 
 29 
 30 
 31 
 32 
 
 33 
 
 34 
 35 
 3() 
 37 
 38 
 39 
 40 
 41 
 42 
 43 
 44 
 45 
 40 
 47 
 48 
 49 
 
 Con. Rule. 
 
 Remarks. 
 
 
 f 
 '( 
 
 Sup. Sec C. R. 235, 278, 
 287 to 289. 
 
 Sup. ,SVc C. R. 283. 
 
 Sup. See C. R. 313. 
 
 324 ih) 
 Effete. 
 Sup. Sec G. R. (;41, 042. 
 
 483, 484. 
 
 399, 449. 
 
 035. 
 
 1170. 
 
 1170. 
 Sup. J. A. 19o((, which is 
 
 Sup. C. R. 390. 
 Sup. See C. R. 538, 540. 
 Effete. 
 
 Sup. See C. R. 540. 
 
 033. 
 Effete. 
 
 Effete. 
 
 Sup. Sec C. R. 1245. 
 
 041, 042, 070. 
 
 
 Effete. 
 
 1 
 9, 
 
 730 
 734 
 737 
 
 ! \ 
 
 500 
 
 
 8 
 
 
 
 4 
 ft 
 
 403 
 
 Sup. See C.R 400, 017 to 
 019. 
 
 6 
 
 
 
 7 
 
 
 Effete. 
 
 8 
 9 
 
 
 { 
 1 
 
 Rescinded by Rule 1, 
 Feb. 7, 1870. 
 
 in 
 
 
 Sup. See 0. R. 001. 
 Effete. 
 
 11 
 
 
 
 1',^ 
 
 
 
 Sup. See C. R. 054. 
 
 1H 
 
 
 002 
 
 
 ( 
 ( 
 
 Effete. 
 
 14 
 
 IT) 
 
 703 
 
 Sup. See C. R. 798. 
 
 ii; 
 
 
 Effete. 
 
 17 
 
 18 
 
 1 
 
 ) 
 
 
 (i 
 (( 
 
 1!) 
 
 
 nip. See C. R. 1170. 
 
 20 
 
 
 794 
 
 n 
 
 418 
 
 liffete. 
 
 n 
 
 
 ^up. See C. R. 704, 765. 
 
 n 
 
 1199 
 
 24 
 
 
 Effete. 
 
 
 
 
 
1108 
 
 [{ULKS, OBDKRS, AND PARTS OF ACTS CONSOIilDATED. 
 
 RULES OF TRINITY TERM, lK.-)i;. 
 
 RULES OF TRINITY TEHM, IH.-.C. 
 
 4) 
 
 a 
 
 o 
 in 
 
 50 
 51 
 52 
 53 
 54 
 
 55 
 
 56 
 57 
 5H 
 59 
 60 
 61 
 62 
 63 
 Ct 
 65 
 6)> 
 67 
 68 
 69 
 70 
 71 
 72 
 73 
 74 
 75 
 76 
 77 
 78 
 79 
 80 
 81 
 82 
 83 
 84 
 85 
 86 
 87 
 88 
 89 
 90 
 91 
 92 
 93 
 
 Con. RiLi 
 
 Rkmaisks. 
 
 li =5 
 
 o 
 Z 
 
 Con. RuIjK 
 
 llKMAIiKS. 
 
 1200 
 1205 
 
 787 
 
 788 
 
 1054 
 
 Sup. See C. R. IIVO. 
 
 lOffete. 
 
 Sup. See C. R.888to.s!)l 
 
 893. 
 Sup. See v.. R. 2;!3, 1047 
 
 JOffete. 
 
 Effete. 
 
 I'^ffete. 
 
 1056 
 1057 
 1083 
 1059 
 1000 
 1061 
 1058 
 1070 
 1071 
 1072 
 1073 
 1074 
 1075 
 1076 
 1077 
 1078 
 1079 
 1080 
 1081 
 1082 
 1084 
 1085 
 1086 
 1087 
 
 Sup. See C. R. 704, 714. 
 293 to 296 
 
 94 
 95 
 96 
 97 
 98 
 99 
 100 
 101 
 102 
 103 
 104 
 105 
 106 
 107 
 108 
 109 
 110 
 111 
 112 
 113 
 114 
 115 
 116 
 117 
 118 
 119 
 120 
 121 
 122 
 123 
 124 
 125 
 126 
 127 
 128 
 129 
 130 
 131 
 
 132 
 
 133 
 134 
 135 
 
 136 
 
 (■.13 
 
 64 4 
 
 645 
 
 1003 (//) 
 
 1053 
 
 1052 
 
 '.108 
 
 !)n<» 
 
 '.no 
 
 Sup. .SVt'C.R.40:J, 072. 
 
 911 
 443 
 534 
 
 Sup. See C R h7'.'. 
 
 (ii;5 
 
 See 25 
 
 1 i 
 
 ) ; 
 
 1 
 
 ) 
 
 481 1 
 
 J 
 1 
 
 
 ' 
 
 "447" 
 
 ( 
 
 1 
 
 -ifVi" 
 
 
 ( 202 1 
 
 
 ( 461 1 
 
 Sup. See C. R. 52(1. 1170. 
 (;05. 
 606. 
 611. 
 ()05. 
 612. 
 
 j':i'fotc. 
 
 Sup. SV,' ('. K. 41, 1:18. 
 543. 
 
 Effete. 
 
 I Effete. See C. R. 52fl. 
 
 Effete. 
 
 .JEffete. .See C. R. 8(.f.. 
 Effete. 
 
 Sup. See C. R. 279, 3'.t8, 
 
 461. 
 Sup. Sec C. R. 279, 4(11. 
 
 Sup. See C. R. 480. 
 
\TED. 
 
 RULE.S, OUDEUS, AND PARTS OF ACTS CONSOLIDATED. 
 
 1109 
 
 Y TERM, lHr)(). 
 
 1{K.S1.\1!K'*. 
 
 .SVcC.E.lO;!. f.7'2. 
 
 Nee 
 
 C. 
 
 II 
 
 Hl'.K 
 
 
 Nee 
 
 il 
 
 C 
 
 .l\ 
 
 5-2(1, 
 005. 
 ()0(). 
 (111. 
 ()()•") 
 tU'i 
 
 1170 
 
 Ic. 
 
 S,rr.R.41,WB. 
 543. 
 
 2te. 
 
 etc. See C. R. &2fi. 
 
 ete. 
 
 etc. Nee C K. 8C.(1. 
 Ifete. 
 
 p. SV« C. K. 27'.t,3y8, 
 p.^"s« C. R. '-^7'.', 4(>1- 
 ,p. SV« C. R. 4B0. 
 
 UTILES OF TRINITY TERM, 185(5. RULES OF PLEADING, 185(1. 
 
 •g Go.N. Kdlk 
 
 o 
 
 137 I 
 
 138 j. 
 
 139 I 
 140 
 141 
 142 
 143 
 144 
 145 
 14(1 
 147 
 148 
 141) 
 1.5() 
 151 
 l.')2 
 153 
 154 
 
 1.55 
 
 15(5 
 
 1.57 
 
 158 
 
 15!) 
 1(10 
 1(11 
 1(12 
 1G3 
 1(14 
 165 
 1(1(1 
 167 
 16H 
 1(1!) 
 170 
 
 203 
 401 
 
 464 
 
 See 535 
 120G 
 
 482 
 
 !) 
 
 HeM.\1!KS. 
 
 450 
 470 
 
 Sup. See (;. R. '241, 2H4, J 4 
 2H5. 
 
 Hui). .SV-' C. R. 871). 
 
 Effete. 
 
 Sup. .S'<vC.]?. 7, 1!), 226. 
 
 Effete. 
 
 1 
 
 
 
 «4H 
 
 o 
 
 Con. Rile. Rf.maukh. 
 
 1 
 
 d 
 2! 
 
 
 2 
 3 
 4 
 
 
 Sup. See C. R. 3!)4. 
 3!)4. 
 653 
 394. 
 
 
 5.'^0 
 
 
 21 
 
 418 
 
 22 
 ',^3 
 
 . Sup. .Set' C. R. 434, (156. 
 
 24 
 25 
 
 
 1170. 
 Effete. 
 
 
 
 11 
 
 13 
 14 
 
 RULES OF 1!)TH FEBRUARY, 1859. 
 
 Sup. .SVc G. R. 7,r,),226.ii 2 
 
 See C. R. 1220. 
 
 Rescinded bv Rule 1, .\u«:!.| 
 27, 1860.' .SVt' G. It. 
 1174, 1219. 
 
 Sup. .SVt' G. R. 1170, 
 I 1174, 
 
 Sup. Tariff 1881 (1(54). 
 ( Sup. Tariff 1881, (158, 
 , 159). 
 
 Effete. 
 
 15 
 16 
 
 Sup, Tariff 1881. 
 
 EULES OF 27tu AUGUST, 1860. 
 
 1 212 
 
 561 
 
 1213 
 
 452 
 
 458' 
 
 Effete. 
 
 Sup. Tariff 1865. 
 
 Sup. Tariff 1881. 
 Sup. See G. R. 474, 476. 
 Sup. G. R. 3. 
 Effete. 
 
 RULES OF PLEADING, 1856. 
 
 Sup. See C. R. 394. 
 
 Sup. See C. R. 1174 and 
 
 Tariff A and B. 
 Rescinded by order of 
 
 23rd jNIay "1874. See 
 
 G. R. 7, 19, 226. 
 
 RULES OF 14th AND Ih.n FEBRU- 
 ARY, 1862. 
 
 Sup. Tariff 2nd Feb. 1874. 
 
 RULES OF 15th FEBRUARY, 18(52. 
 
m 
 
 1110 RULES, ORDERS, AND PARTS OF ACTS CONSOLIDATED. 
 
 RULES OF MAY, 1862. 
 
 « 
 
 P5 
 
 
 Con. Rule, 
 
 Remarks. 
 
 These Rules air jffete. 
 
 RULES OF 28th NOVEMBER, 18(58. 
 
 1-12 
 13 
 
 Recinded by Rules of 
 
 September, 18C5. 
 Effete. 
 
 RULES OF 'Jth SEPTEEBER. 1805. 
 
 1 
 2 
 
 3 
 4 
 
 5-11 
 
 12 
 13 
 
 RULES OF 12th FEBRUARY, 18(]7. 
 
 "a 
 
 o 
 
 Con. Rulk 
 
 Remarks. 
 
 Effete. 
 
 Rescindeil by Rules of 
 17th Nov. 1875, 17. 
 
 RULE OF (h-H JUNE, 1808. 
 
 ( Sup. R. S. O, 1877, c. 84, 
 
 I 8. a. 
 
 RULE OF 2nd DECEMBER, 18(1'.). 
 
 Rescinded by Rules of 
 17th Nov. 1875, 17. 
 
 Sup. J. A. Rule 529, now 
 
 effete. j .' 
 
 Sup. J. A. Rule 530, now I 
 
 effete. 
 
 Sup. J. A. Ruie531. no'- Ij 
 
 effete. ;: RULE OF 9th FEBRUARY, 1870. 
 
 Effete or uniitc.;" . . ■■' i; 
 
 J! 
 
 Sup Rules oi J.' 
 
 1875, 10, 11, ; •». -pij 1 
 
 c. R. !i2u, 2'::x, :.:?,' ii 
 
 Sup. Rules of 1st Lyvi., ' 
 
 1875, 2. 
 Effete. 
 
 30 
 
 RULES OF 2nd DECEMBER, 1865. 
 
 Sup. Tariff, 1881. 
 Sup. See C. R. 388, 389. 
 390. 555. 
 
 RULES OF 12th FEBRUARY, 1807. 
 
 ( Rescinded by Rules of 
 ( 17th Nov. 1875, 17. 
 
 RULES OF 9th DECEMBER, 1871. 
 
 Tariff Sup. by Tariff 1881 
 
 RULES OF 7th FEBRUARY, 1872. 
 
 
 
 Effete. 
 
 RULES OF 2nd FEBRUARY, is7t. 
 
 1 
 
 1232 
 
 
^EBRUAllY, 18()7. 
 
 3te. 
 
 .cinclecl by Rulos of 
 
 7th Nov. 1875, 17. 
 
 i-ii JUNE, 1808. 
 
 p. R. S. O. 1877, c. 84, 
 ,. 2. 
 
 )ECEMBER, 181)'.!. 
 
 isciuded by Rules of 
 17th Nov. 187"), 17. 
 
 FEBRUARY, 1870. 
 
 DECEMBER, 1871. 
 
 ariff Sup. by Tariff 1881 
 
 FEBRUARY, 1872. 
 
 D FEBRUARY, 1871 
 
 RULES, ORDERS, AND PARTS OF ACTS CONSOLIDATED. 1111 
 
 RULES OF 14th FEBRUARY, 1874. 
 
 RULES OF ITth NOVEMBER. 1875. 
 
 1 
 
 
 
 6 
 
 Con. Rule. 
 
 Rejurks. 
 
 at 
 "3 
 
 d 
 
 Con. Rule. 
 
 Remaukk, 
 
 
 
 Effete. 
 
 14 
 15 
 1(1 
 17 
 
 
 
 Effete 
 
 RULES OF 23itD MAY, 1874. 
 
 
 
 
 1 
 
 1 
 
 f Sup. See C. R. 7, I'J, 
 \ 226. 
 
 RULES OF 1st DECEMBER, 1875. 
 
 1 
 
 1 
 2 
 
 1 
 1 
 
 Effete. 
 
 RULES OF 5th SEPTEMBER, 1874. 
 
 
 RULES OF 4rn DECEMBER, 1875 
 
 
 
 Rescinded By lUile 23, 
 15th May, 187G. 
 
 
 
 ] 
 2 
 
 3 
 4 
 
 5 
 () 
 
 
 Unnecessary. 
 
 
 '■ 671 
 
 1 
 
 ) 
 
 RU 
 
 LES OF 22.ND DECEMBER, 1874. 
 
 Sup. See C. R. 054, etc. 
 
 1 
 2 
 
 ) 
 
 ) 
 
 Effete. 
 
 
 RULES OF 7th FEBRUARY, 1876. 
 
 RULES OF 17th NOVEMBER, 1875. 
 
 1 
 2 
 3 
 4 
 
 )■■ 
 
 Effete. 
 
 1 
 2 
 
 1 220 
 
 221 
 222 
 223 
 
 Effete. 
 
 
 8 
 4 
 5 
 
 RULES OF 7th FEBRUARY, 1876. 
 
 6 
 7 
 
 8 
 
 1-7 
 
 
 Crown cases reserved. 
 
 
 
 9 
 10 
 11 
 
 RULES OF 10th MARCH, 1876. 
 
 12 
 13 
 
 1 
 
 802 
 
 

 1112 RULES, ORDERS, AND PARTS OF ACTS CONSOLIDATKO, 
 
 
 RULES OF lOrn MARCH, 187(i. 
 
 RULE OF Q. B. JUNE, 1877 
 
 •4-t 
 
 o 
 
 d 
 
 Con. Rule. 
 
 Remarks. 
 
 "a 
 
 •s 
 
 6 
 
 Con. Rule. 
 
 Hkmauks. 
 
 9, 
 
 
 Effete. 
 
 1 
 
 
 
 a 
 
 il83 
 
 Effete. 
 
 4 
 
 
 Effete. 
 
 
 
 
 
 
 b 
 6 
 
 7 
 
 205 
 
 206 
 
 1184 
 
 
 RULE OF C. P. Dm JUNE, 1877. 
 
 
 1 
 
 
 Effete. 
 
 RULES OF 15th MAY, 187<). 
 
 
 
 
 
 
 1-5 
 
 
 Sup. ,SV,> C. R. 210. 
 211. 
 
 Sup. Rules ri. C.J. 7. 
 Sup. See C. R. 540. 
 537. 
 
 Effete. 
 
 I'art sup. J. A. Act, 8,28, 
 
 and part effete. 
 Unnecessary 
 
 Effete, 
 
 RULE OF 6Tn JUNE, 1878. 
 
 fi 
 
 
 
 
 
 
 7 
 
 1 
 
 
 Tariff B. 
 
 a 
 
 
 
 9 
 10 
 11 
 
 2i2 
 
 
 RULE OF 6th MARCH, 1880. 
 
 12- 
 
 1 ( 
 ) I 
 
 
 21 
 22 
 
 1 
 
 
 Sup. Tariff, 1881. 
 
 23 
 24 
 
 1 
 
 )" 
 
 
 RULE OF Q. B. 5th JUNE, 1880. 
 
 RULE OF 16th MAY, 1876. 
 
 1 
 
 
 Effete. 
 
 1 
 
 28 (d) 
 
 
 
 
 RULE OF Q. B., 3rd JUNE, 1876. 
 
 RULE OF C. P. 5th JUNE, 1880. 
 
 1 
 
 
 Effete. 
 
 1 
 
 
 Effete 
 
 
 
 
 
 
 RULE OF 2l8t MAY, 1877. 
 
 RULE OF 27th NOVEMBER, 1880. 
 
 
 1 
 
 
 1 
 
 389 
 
 
 f 220 
 ■( 223 
 
 
. UULES, ORDERS, AND PARTS yjF ACTS CONSOLIDATED. 1113 
 
 JUNE, 1877. 
 
 <^■m JUNE, 1877. 
 
 RULE OF Q. 13. MICII. T. 18H0. 
 
 1 
 
 MUN. ELECTION RULES. 
 
 « 
 •o 
 
 6 
 >5 
 
 Con. KufiE. 
 
 Ukmahks. 
 
 "a 
 
 O 
 
 d 
 
 Con. Rule. 
 
 Rkmauks. 
 
 1 
 
 
 l:;ffet(;. • 
 
 
 
 Hill) (' R 103(1 Ac 
 
 
 
 
 1 
 RULE OF C. P. MICH. T., IHSO. 
 
 1 
 
 , 
 
 1 
 
 
 Effete. 
 
 
 
 
 
 H JUNE, 1878. 
 
 CHANCERY ORDERS. 
 
 MARCH, 1880. 
 
 ;. .5th JUNE, 1880. 
 
 ?. 5th JUNE, 1880. 
 
 NOVEMBER, 1880. 
 
 CHANCERY ORDERS. 
 
 u 
 
 I 
 
 o 
 
 ('on. Rule. 
 
 Remauks. 
 
 Effete. 
 
 Sup. Cliy. O. 1)18. 
 
 Effete. 
 
 Abrogated by Chy. O. 
 55',». 
 
 CHANCERY ORDERS. 
 
 Rep. 41 V. c. 8, s. '>. 
 
 Remauk.s. 
 
 Unnecessary. 
 Rescinded by Ch. (>. 558. 
 
 Sup. 48 Vict. c. 13, s. 21. 
 See C. R. 41, 138. 
 
 Sup. .Sec C. R. 718, 72(5, 
 
 765(!i), 76G, 768. 
 Effete. 
 
f.r , ■■' 
 
 
 1114 
 
 RULES, ORDERS, AND PARTS OF ACTS OONSOLinATRD. 
 
 CIIANCEllY ORDERS. 
 
 hi 
 
 O 
 
 'A 
 
 Con. Rulk 
 
 43 
 
 44 
 45 
 46 
 47 
 48 
 49 
 50 
 51 
 52 
 53 
 54 
 55 
 56 
 57 
 58 
 59 
 60 
 61 
 62 
 615 
 64 
 65 
 60 
 67 
 
 68 
 
 69 
 70 
 71 
 72 
 73 
 87 
 88 
 89 
 90 
 91 
 92 
 93 
 94 
 95 
 96- 
 104 
 105 
 
 461 
 462" 
 
 252 
 460 
 463 
 
 201 
 
 319 
 320 
 321 
 322 
 
 307 
 
 487 
 323 
 
 [ 
 
 \ 
 
 421 
 
 422 
 
 ,SVc 1195 
 
 See. 267 
 
 REMAnKS. 
 
 CHANCERY ORDERS. 
 
 V 
 
 o 
 
 ^% 
 
 Sup. C. R. 242. 
 Sup. .SVe C. R. 461. 
 
 Sup. See C. R. 198. 
 
 Sup. See C. R. 324. 
 .SVf C. R. 300, 44.'). 
 324, 444. 
 Sup. See C. R. 310. 
 
 Sup. See C. R. 309. 
 
 302, 303. 
 
 Sec C. R. 395, 448, 605. 
 
 Sup. See C. R. 399, 449, 
 605. 
 
 Sup. See C. R. 279. 
 
 Effete. 
 
 Rescinded by Chy. 0. 623. 
 
 Effete. 
 
 Rescinded by Chy . 0. 623. 
 
 Effete. 
 
 Effete. 
 
 Rescinded by Chy . 0. 6iio. 
 
 Effete. 
 
 See C. R. 398. 
 
 10(i 
 133 
 134 
 136 
 137 
 138 
 139 
 140 
 141 
 142 
 143 
 
 144 
 
 145 
 
 lie. 
 
 147 
 
 148 
 149 
 155 
 156 
 157 
 158 
 \m 
 160 
 161 
 162 
 
 163 
 
 KM 
 165 
 166 
 167 
 
 168 
 
 169 
 170 
 171 
 172 
 173 
 174 
 175 
 176 
 177 
 178 
 
 Con. Rule, 
 
 Rem.miks. 
 
 Effete. 
 
 Sup. See C. R. 50S. 
 Sec C. R. 513. 
 
 See 487 
 
 See 489 
 494 
 
 Sup. Set' C. R. 4S1S, .■jlO. 
 
 See C. R. 495. 
 
 499 
 520 
 ()48 
 
 497 
 498 
 
 ( 
 
 567 
 683 
 684 
 
 Sup. See C. R. 50(1. 
 
 Sup. See C. R. IWrt, d 
 neq. 
 
 Sup. ,S'(r C. R. (;i7-()19. 
 
 (15;!. 
 
 Effete. 
 
 .SV't' C. R. 654, 663. 
 
 Effete. 
 
 Sup. See C. R. 6ti3, 064, 
 
 665. 
 See C. R. 23 (16). 
 Sup. .SVt' C. R. 064. 
 Effete. 
 
 Unnecessary. 
 Effete. See C. R. 504, 
 
 ()76, 681. 
 Effete, 
 Effete. See R. S. 0, 
 
 1877, c. 62, 8. 4. 
 Effete. See R. S. 0. 
 
 1877, c. 62, ss. 18-20. 
 Effete. 
 Abrogated. 
 
RULES, 0RDKU8, AND PAUT8 OF ACTS CONSOLIDATED. 
 
 1115 
 
 Y 0UDEK8. 
 
 1). Sec C. R. SOS. 
 ' C. K. '>V,i. 
 
 p. See C. R. 488, 510. 
 
 c C. R. 495. 
 
 up. See C. R. 'M'^. 'f 
 neq. 
 up. .S<Y C. R. C.lT-iilO. 
 
 :ffcte. 
 
 ':ce C. R. (554, 063. 
 
 iffete. 
 
 Uxp. .SVt' C. R. tjr)3,r.64, 
 
 (itw. 
 ,>c G. R. 23 (ir.). 
 5up. See G. R. H''4- 
 Kffete. 
 
 Unnecessary. 
 Effete. See C. R. 5W, 
 
 ()7<). 681. 
 Effete. ^, ,^ 
 
 Effete. SVf R. fe. <J. 
 
 1877, c. 'i2, s. 1. 
 Effete. .SV.-' R' S- "• 
 
 1877, c. 0'2, SB. 18-20. 
 Effete. 
 Abrogated. 
 
 CHANCERY ORDERS. 
 
 i 
 
 CHANCERY ORDERS. 
 
 1 
 
 
 
 
 
 
 
 
 
 
 O 
 
 
 
 
 
 Con. Rcle. 
 
 IlEMAHKa. 
 
 o 
 
 Con, Rule. 
 
 Remakkh. 
 
 d 
 
 
 
 6 
 
 
 
 1?; 
 
 
 
 ^ 
 
 
 
 17!) 
 
 See 685 
 
 
 226 
 
 62 
 
 
 180 
 
 
 Sup. See C. R. 1189. 
 UnnecesHiiry. ! 
 
 227 
 
 228 
 
 63 
 64 
 
 
 181 
 
 
 
 182 
 
 086 
 
 
 229 
 
 05 
 
 
 18il 
 
 
 Sup. Sec G. R. 672. 
 Sup. See C. R. 673, 797. 
 
 230 
 231 
 
 66 
 67 
 
 
 184 
 
 
 
 I8r) 
 
 
 Effete. 
 
 232 
 233 
 
 68 
 69 
 
 
 186 
 
 771 
 
 
 187 
 
 777 
 
 
 234 
 
 See 1189 
 
 
 188 
 
 778 
 
 
 235 
 
 
 Unnecessary. 
 
 181) 
 190 
 
 \ 
 
 
 236 
 
 
 Sun See C. R. 1204. 
 
 1 
 
 Effete. 
 
 237 
 
 70 
 
 
 191 
 
 j 
 
 1 
 
 238 
 
 71 
 
 
 192 
 19!) 
 
 I 
 
 ) 
 
 Effete. SeeU\.c. 5,8.85. 
 
 239 
 240 
 
 72 
 73 
 
 1 
 
 191 
 
 
 Effete. 
 
 241 
 
 242 
 
 74 
 
 75 
 
 
 195 
 
 773 
 
 
 19() 
 
 770 
 
 
 243 
 
 76 
 
 
 197 
 
 542 
 
 
 244 
 
 46 
 
 
 198 
 
 j 
 
 Sup. See G. R. 479, 525- 
 527. 
 
 245 
 246 
 
 47 
 
 48 
 
 
 
 ] 
 
 
 199 
 
 467 
 
 
 247 
 
 77 
 
 • , • 
 
 200 
 
 See 547 
 
 
 248 
 
 78 
 
 
 201 
 
 ) 
 
 
 249 
 
 79 
 
 
 207 
 
 547 
 
 
 250 
 
 80 
 
 
 208 
 
 548 
 
 
 251 
 
 81 
 
 
 909 
 
 
 Effete. 
 
 252 
 253 
 
 See 848 
 " 82 
 
 Altered. 
 
 210 
 
 549 
 
 
 211 
 
 45 
 
 
 254 
 
 83 
 
 
 212 
 
 50 
 
 
 255 
 
 85 
 
 
 21 a 
 
 1 -o 
 
 
 256 
 
 86 
 
 
 214 
 
 o2 
 
 
 257 
 
 584 
 
 
 215 
 
 53 
 
 
 258 
 
 ) 605 
 
 
 210 
 
 54 
 
 
 
 j (107 
 
 
 217 
 
 55 
 
 
 269 
 
 609 
 
 
 
 ) 49 
 
 
 260 
 
 614 
 
 
 218 
 
 ; 1188 
 
 
 261 
 
 616 
 
 
 219 
 220 
 
 66 
 57 
 
 
 262 
 
 
 Sup. See C. R. 532, o33. 
 
 
 203 
 
 479 
 
 
 ) 58 
 
 
 264 
 
 479 
 
 
 221 
 
 j" 590 
 
 
 265 
 
 964 
 
 
 222 
 
 59 
 
 
 266 
 
 [ 
 
 
 223 
 
 60 
 
 
 267 
 
 Sup. See C. R. 578. 
 
 224 
 
 61 
 
 
 268 
 
 
 225 
 
 See 1178 
 
 
 269 
 
 
 'ffflRI 
 
IIIG 
 
 IIULEB, OUDHIUS, AND I'AIITS OK ACTS CONHOLIUATKD. 
 
 >^B9 
 
 CHANCE UY OllDKUH. 
 
 ^ ! 
 
 ii I 
 
 o I 
 
 •H ICd.n. Ui;i,K, 
 
 O I 
 
 o I 
 
 '270 
 271 
 272 
 
 273 
 274 
 
 27r) 
 
 270 
 
 277 
 278 
 279 
 280 
 281 
 282 
 283 
 284 
 285 
 280 
 287 
 288 
 28!) 
 290 
 291 
 292 
 293 
 294 
 295 
 296 
 297 
 298 
 303 
 304 
 305 
 306 
 307 
 308 
 309 
 310 
 311 
 312 
 313 
 314 
 
 Sef 1170((/) 
 
 534 
 See 116 
 " 117 
 " 118 
 " 119 
 " 120 
 " 121 
 
 192 
 193 
 
 880 
 881 
 Sec 882 
 883 
 884 
 
 521 
 
 ( 
 .... J 
 
 1178 
 
 1215 
 1210 
 
 1218 
 1198 
 1208 
 1209 
 1210 
 
 Ukmakkh. 
 
 Slip. .SVcC.ll. 727. 
 744. 
 579. 
 
 04(i, 647, 
 64S. 
 Sii]). See V II. 646, 647, 
 
 648. 
 Sup See C. H. (UO, 647, 
 
 648. 
 Sup. ,SV<' C. R. 646, 647, 
 648. 
 
 Effete. ,S'(.','J. A. n. 16 (6), 
 Effete 
 
 Altered. 
 
 Sup, See C. R. 879. 
 
 861, 868. 
 Effete. ,SW'C.R.526,527 
 
 Sup. See C. R 887. 
 Rescinded by Chj'. O. 
 610. 
 
 Sup. .Set' C. R. 1214. 
 
 Effete. 
 
 CII.\NCERY OHDEHH. 
 
 u 
 
 O 
 
 •s 
 
 d 
 
 55 
 
 315 
 310 
 317 
 318 
 319 
 320 
 321 
 322 
 328 
 329 
 
 330 
 331 
 332 
 333 
 334 
 335 
 336 
 337 
 343 
 344 
 351 
 352 
 353 
 354 
 355 
 350 
 357 
 358 
 359 
 360 
 301 
 302 
 363 
 364 
 305 
 366 
 307 
 308 
 309 
 370 
 371 
 372 
 373 
 
 374 
 
 Co.N RULK, 
 
 1202 
 1197 
 
 1181 
 
 782 
 783 
 784 
 785 
 786 
 
 Hi:Maiikh. 
 
 781 
 
 160 
 167 
 170 
 
 170 
 
 178 
 
 102 
 
 91 
 
 Effeto. 
 
 Sup. SeeC. U. 117(1. 
 
 1242, I'JIT. 
 
 Sup. See C. K. 798, 800. 
 
 Al)ro;;iited bv (!hv. O. •")!). 
 
 Sup. ,S'<v V. U. 780. 
 
 Sup. .SVt'C. 11.020 c/.vc./. 
 
 Sup. ,S'('C {.J.R. 444 ('( ,<('!/, 
 
 Altered. 
 Altori'd. 
 
 Abrogated by Cliy . (). i'u\l 
 
 Effete. .SV.'C.R. 172, 17.n 
 
 Sup. .SV.'C. R Ml. 
 142. 
 143. 
 144. 
 
 14.-), lie, 
 14!). 
 1.00. 
 151 ■ 
 
 Sup. See C'. R. 15."). 
 185. 
 180. 
 187. 
 188. 
 156. 
 
iri'.D. 
 
 IIL'I.RS, ORDR'.IH, AND I'AUTS OK ACTS OONHOI.IDATKD. 
 
 U17 
 
 OKDERH. 
 
 KlMAUKH. 
 
 la. 
 
 S,'rV. U.U70. 
 
 l-24-2,r-'W. 
 
 o"ate(l by Cliy. ()•■>'.•». 
 
 ;,. s<v C. U. 7H0. 
 p. ,SVcC!.li. li-20W.sn/. 
 1). ,SV<'(:.H-4l4.'(sH/. 
 
 tereil. 
 terod. 
 
 bro^^atedbyChy. ().">■"'.*• 
 ffete. .SV.'C.U.172.17.-.. 
 
 up. 
 
 3up. 
 
 i( 
 
 C. 
 
 11 
 
 141. 
 142. 
 143. 
 144. 
 
 ii 
 
 
 
 145, I4i; 
 
 •> 
 
 
 
 141). 
 
 It 
 II 
 
 
 
 150. 
 151. ■ 
 
 See 
 
 C 
 
 . R 
 
 . 155. 
 
 1H5. 
 
 «t 
 
 
 
 18G. 
 
 tl 
 
 
 
 187. 
 
 It 
 
 
 
 188. 
 
 ll 
 
 
 
 15(1. 
 
 CHANCEKY OUDIIMS. 
 
 ■E 
 
 ('(>N. Un.K 
 
 375 
 
 !)'2 
 
 87«! 
 
 !)3 
 
 377' 
 
 !)4 
 
 378 
 
 '.)■) 
 
 »7'.i 
 
 •.)ll 
 
 380 
 
 !)7 
 
 3H1 
 
 H8 
 
 382 
 
 «!) 
 
 383 
 
 100 
 
 384 
 
 101 
 
 385 
 
 ., ( 102 
 '"■'' (U7H 
 
 
 ( 103 
 
 3H(i 
 
 ^'•'' (1178 
 
 887 
 
 104 
 
 388 
 
 105 
 
 38'.) 
 
 101) 
 
 390 
 
 108 
 
 391 
 
 10!) 
 
 3i)2 
 
 110 
 
 393 
 
 HI 
 
 394 
 
 112 
 
 395 
 
 113 
 
 39rp 
 
 114 
 
 397 
 
 115 
 
 398 
 399 
 400 
 401 
 402 
 403 
 404 
 405 
 40(; 
 407' 
 408 
 40!) 
 410j) 
 
 411 , 
 
 412 . 
 
 413 . 
 
 414 . 
 41 
 
 41() 
 
 Kkm.mikm. 
 
 453 
 
 CIIANCKUY OUDKHS. 
 
 484 
 477 
 
 Slip. SreV. H. 1141, etc. 
 
 Sup. See C. R. 3!)5. 
 3!)(). 
 Effete. 
 
 Sup. See C. R. 473, 474, 
 47t). 
 
 Sup. See C. K. 480. 
 
 485. 
 Effete. 
 
 Sup. See Jud. Act a. 8!), 
 .See C. R. 210. 
 Abrof^ated by Chy. O 
 559. See C. R. 211. 
 
 417 
 
 
 418 
 
 
 41!) 
 
 758 
 
 4''l) 
 
 
 421 
 
 ) 
 
 .{')'> 
 
 
 423 
 
 ) 
 
 4M 
 
 
 4'?,!y 
 
 
 4'iH 
 
 347 
 
 427 
 
 804 
 
 428 
 
 848 
 
 42!) 
 
 ■v.v 349 
 
 430 
 
 351 
 
 4311 
 
 352 
 
 432i 
 
 1 
 
 438; 
 
 j' 
 
 434 
 
 717 
 
 485 
 
 718 
 
 43() 
 
 1 
 
 437 
 
 J 
 
 438 
 
 ;«)() 
 
 431) 
 
 
 440 
 
 305 
 
 441 
 
 77<i 
 
 442 
 
 124 
 
 443 
 
 125 
 
 444 
 
 120 
 
 445 
 
 127 
 
 44() 
 
 128 
 
 447 
 
 12!) 
 
 448 
 
 130 
 
 44!) 
 
 131 
 
 450 
 
 
 451 
 
 353 
 
 452 
 
 132 
 
 453 
 
 133 
 
 454 
 
 134 
 
 455 
 
 354 
 
 45(i 
 
 350 
 
 457 
 
 355 
 
 458 
 
 350 
 
 45!1 
 
 357 
 
 4()0 
 
 358 
 
 4(il 
 
 359 
 
 lOfftte. 
 
 Sup. ,SV.' ('. H 537. 
 
 Abroj^att'd. 
 
 >up. 
 
 See V.U. 4KC). 
 
 7, 
 8. 
 
 Sup. .W(\ R.718. 
 
 Kffftu 
 
 Unnecessary. 
 
 Sup. See C. U. i: 
 
1118 
 
 RULES, ORDERS, AND PARTS OF ACTS CONSOLIDATED. 
 
 CHANCERY ORDERS. 
 
 1 
 
 CHANCERY ORDERS. 
 
 
 
 
 u 
 
 1.' 
 U 
 
 
 
 o 
 
 
 
 o 
 
 
 
 o 
 
 Con. Rule. 
 
 Remarkb. 
 
 o 
 
 Con. Rulk. 
 
 Remarks. 
 
 6 
 
 
 
 6 
 
 
 
 "Z^ 
 
 
 
 500 
 
 
 
 402 
 
 300 
 
 
 1028 
 
 
 403 
 
 301 
 
 
 507 
 
 1029 
 
 
 404 
 
 Sec 341 
 
 
 508 
 
 1030 
 
 
 405 
 
 
 Effete. 
 
 Sun. See C. R. 302, 303. 
 
 509 
 510 
 
 5i: 
 
 !031 
 1032 
 1037 
 
 
 400 
 
 
 
 407 
 
 905" 
 
 *J \A 1^ • ^-J V \^ ^— ' • ^UW ■ ^J *.* ^ J *.* -^ --- w 
 
 
 46S 
 40lt 
 
 900 
 907 
 
 
 512 
 513 
 
 1 
 
 )' 
 
 Tariff. 
 
 470 
 
 908 
 
 
 514 
 
 1036 
 
 
 471 
 
 909 
 
 
 515 
 
 1033 
 
 
 472 
 
 970 
 
 
 510 
 
 1034 
 
 
 473 
 
 971 
 
 
 r>n 
 
 ( 
 
 Sup. Chy. 0. 010. See 
 
 474 
 
 975 
 
 
 I 
 
 C. R. 258, ct sc(j. 
 
 475 
 
 970 
 
 
 518 
 
 
 Effete. 
 
 470 
 477 
 478 
 
 977 
 978 
 979 
 
 
 619 
 620 
 521 
 
 ) f 
 
 [ » 
 
 Sup. Chy. 0. 010. See 
 C. R. 252, 202. 
 
 479 
 
 980 
 
 
 622 
 
 337 
 
 
 480 
 
 981 
 
 
 523 
 
 338 
 
 
 481 
 
 982 
 
 
 524 
 
 
 Unnecessary. 
 
 482 
 
 983 
 
 
 525 
 
 337 
 
 483 
 
 984 
 
 
 526 
 
 339 
 
 
 484 
 
 985 
 
 
 627 
 
 994 
 
 
 485 
 
 980 
 
 
 528 
 
 995 
 
 
 480 
 
 987 
 
 
 529 
 
 99(; 
 
 
 487 
 
 988 
 
 
 5.30 
 
 997 
 
 
 488 
 
 
 Slip. See C. R. 224. 
 
 531 
 
 998 
 
 
 489 
 
 f 5.30 ' 
 
 532 
 
 999 
 
 
 ■( 1185 
 
 
 533 
 
 1001 
 
 
 490 
 
 738 , 1 
 
 534 
 
 1002 
 
 
 491 
 
 
 Effete. 
 
 535 
 63() 
 
 1003 
 
 
 492 
 
 iois 
 
 
 Abrogated. 
 
 493 
 
 1014 
 
 
 537 
 
 i22 
 
 494 
 
 1015 
 
 
 538 
 
 
 Sup. 48 v., c. 13, H. 0. 
 
 495 
 
 1017 
 1018 
 
 
 539 
 
 
 Effete. 
 
 490 
 
 540 
 
 44" 
 
 
 497 
 
 1019 
 
 
 541 
 
 '.'AM 
 
 
 498 
 
 1020 
 
 
 542 
 
 S>'e 409 
 
 
 499 
 
 1021 
 
 
 543 
 
 " 470 
 
 
 500 
 
 1022 
 
 
 644 
 
 f 409 
 
 
 501 
 
 1023 
 
 
 ■( S^<>470 
 
 
 502 
 
 1024 
 
 
 545 
 
 471 
 
 
 503 
 
 1025 
 1020 
 
 
 546 
 547 
 
 
 Effete. 
 
 504 
 
 454' 
 
 
 505 
 
 1027 
 
 
 648 
 
 455 
 
 
TED. 
 
 RULES, ORDERS, AND PARTS OF ACTS CONSOLIDATED. 
 
 1119 
 
 OllDEKS. 
 
 Remauks. 
 
 Ef. 
 
 Cby. 0. »')10. See 
 R. 258, et xcq. 
 te. 
 
 Cliy. O. (',10. See 
 . R. aSC, 202. 
 
 fiecessary. 
 
 ro; 
 
 gated. 
 
 p. 48 v., c. IH, «■ "■ 
 etc. 
 
 Sete. 
 
 CHANCERY ORDERS. 
 
 ^ I 
 
 O I 
 
 re 
 
 o 
 
 .« Con. Rule, 
 
 o 
 
 6 I 
 ^ i 
 
 456 
 
 966 
 See 1219 
 1221 
 1222 
 1223 
 1224 
 
 80 
 990 
 
 1178 
 See 33 
 
 54!) 
 
 550 
 
 551 
 
 552 
 
 558 
 
 554 
 
 555 
 
 55() 
 
 557 
 
 558 
 
 551) 
 
 560 
 
 561 
 
 562 
 
 563 
 
 564 
 
 565 
 
 566 
 
 567 
 
 568 
 
 560: 1 
 
 670j)- 
 
 571 . 
 
 572 . 
 5781) 
 574 
 575 ) 
 5761 1 
 577if 
 578 . 
 579!. 
 5801. 
 581 
 582 
 588 
 
 584| 51 
 
 585i,SV<'1170((j) 
 5!^6i,S'ccll70(a) 
 587 
 58s 
 589 
 590 
 591 
 592 
 693 
 
 822 
 123 
 
 67 
 
 1635 
 
 Remarks. 
 
 Effete. 
 
 Sup. See Tariff B. 
 
 Sup. Chv. O. 033. 
 Effete. 
 
 Sup. See C. R. 42. 
 Effete. 
 
 Sup. .S'<!<? C. R. 846. 
 
 Effete. 
 
 Sup. See C. R. 139, 141 
 
 Effete. 
 
 Sup. See C. R. 172, 175, 
 Tariff. 
 
 Sup. See C. R. 179. 
 
 180. 
 
 181. 
 
 1«0, 181 
 
 182. 
 
 183. 
 
 184. 
 
 189. 
 
 CHANCERY ORDERS. 
 
 u 
 
 o 
 
 o 
 
 Cox. Rule 
 
 Sup. See C. R. 210, 211. 
 Sup. See C. R. 210, 211. 
 
 594 
 
 .-)95 
 i,W\ 
 597 
 598 
 602 
 003 
 604 
 607 
 (i08 
 609 
 CI';; 
 
 611 
 012 
 013 
 614 
 615 
 616 
 617 
 618 
 019 
 620 
 021 
 622 
 623 
 028 
 
 629 
 
 680 
 631 
 632 
 633 
 634 
 ()37 
 038 
 
 039 
 
 640 
 
 041 
 042 
 043 
 044 
 645 
 
 040 
 
 774 
 
 25 
 
 7()2 
 
 451 
 
 1016 
 
 Remarks. 
 
 I'^ffete. 
 
 Sup. See C. R. 544. 
 
 Effete. 
 
 Sup. Tariff 1881. 
 Effete. 
 
 Effete. 
 
 Sup. Sec C. R. 757. 
 Tariff 13. 
 
 Effete. 
 
 Not consolidated. 
 Effete. 
 
 Effete. 
 
 Sup. O. in C, 30tli June, 
 
 1H81. 
 Effete. 
 
 Sup. See C. R. 150. 
 See C. R. 23 (1). 
 
 lOffete. 
 
 972 
 973 
 974 
 
 989 
 990 
 
 See 849 
 1187 
 1188 
 717 
 (717 
 1718 
 
, I 
 
 Ljt h 
 
 "??!>. 
 
 % 
 
 -^^. 
 
 > 
 
 1120 RULES, ORDERS, AND PARTS OF ACTS CONf-OLIDATED. 
 
 CHANCERY ORDERS. 
 
 CHANCERY ORDERS. 
 
 1 
 
 O 
 
 Con. Rui>k. 
 
 Rkmauks. 
 
 No. of Order. 
 
 Con. Ri:li:. 
 
 Remauks. 
 
 647 
 
 
 Effete. 
 Effete. 
 
 650 991 
 651 
 
 
 648 
 64 '» 
 
 718 
 
 Effete. 
 
 
 
 1 
 
 RULES UNDER THE JUDICATURE ACT. 
 
 RULES UNDER ONTARIO JUDICA- 
 
 RULES UNDER ONTARIO JUDICA- 
 
 
 TURE ACT. 
 
 ' TURE 
 
 1 
 
 ACT. 
 
 "a 
 
 
 
 1 . 
 
 
 
 
 o 
 
 Con. Rule. 
 
 Remakkh. 
 
 «4-H 
 
 O 
 
 Cox. Rui,K. 
 
 
 Re.makks. 
 
 d 
 
 
 
 '224 
 
 
 6 
 ' 20 
 
 
 
 
 1 
 
 
 See 280 
 
 
 
 2 
 
 
 Stp. ,SV<'C. R. 1141. etc. 
 
 U.inecessarv. 
 
 Effete. 
 
 21 
 
 i 22 
 
 23 
 
 224 
 224 
 
 Snp. 
 
 J. A. Rule 547. 
 
 4 
 
 
 
 
 5 
 
 224 
 
 
 24 
 
 229 
 
 
 
 6 
 
 .SV('1195 
 
 
 5s.5 
 
 • > • • . . It*. 
 
 Sup. 
 
 J. A. Rule 547. 
 
 7 
 
 2;Ji 
 
 
 26 
 
 235 
 
 
 
 8 
 
 232 
 
 
 27 
 
 236 
 
 
 
 9 
 
 f 233 
 ( 1047 
 
 
 28 
 29 
 
 237 
 260 
 
 
 
 10 
 
 444 
 
 
 80 
 
 261 
 
 
 
 11 
 
 243 
 
 
 31 
 
 238 
 
 
 
 12 
 
 244 
 
 
 32 
 
 239 
 
 
 
 13 
 
 224 
 
 
 38 
 
 262 
 
 
 
 14 
 
 
 See C, R. 'iio. 
 
 34 
 35 
 
 253 
 267 
 
 
 
 15 
 
 246 
 
 
 16 
 17 
 
 247 
 
 248 
 
 
 86 
 
 f 258 
 ( 262 
 
 
 
 18 
 
 240 
 
 
 37 
 
 259 
 
 
 
 19 
 
 241 
 
 
 38 
 
 26& 
 
 
 
A.TED. 
 
 RULES, ORDERS, AND PARTS OF ACTS CONSOLIDATED. 
 
 1121 
 
 ORDERS. 
 
 RULES UNDER ONTARIO JUDICA- 
 
 RULES UNDER ONTARIO JUDICA- 
 
 TURE ACT. 
 
 
 TURE ACT. 
 
 
 Remauks. 
 
 •o < 
 
 ?,o\. Rule. 
 
 Remarks. 
 
 
 Con. Rule. 
 
 Remarks. 
 
 — 
 
 d 
 
 
 6 
 
 
 
 
 39 
 
 264 
 
 
 82 
 
 740 
 
 
 ;e. 
 
 40! 
 
 265 
 
 
 83 
 
 741 
 
 
 
 41] 
 
 266 
 
 
 84 
 
 742 
 
 
 
 
 42 269 
 43 
 
 Abrogated. 
 
 85 
 86 
 
 743 
 745 
 
 
 
 
 44 2ii6 
 
 87 
 
 746 
 
 
 • 
 
 45 
 
 C. R. 271 substituted. 
 
 88 
 
 747 
 
 
 
 4(i! 276 
 
 
 89 
 
 90 
 91 
 
 ( 300 
 
 
 
 47| 
 48i 
 4i» 
 
 
 Effete. 
 
 (1171 
 446 
 301 
 
 
 , ACT. 
 
 274" 
 
 272 
 
 
 50 
 51 
 
 
 Sup. J. A. Rule 547. 
 
 92 
 93 
 
 302 
 303 
 
 
 
 "'",S,V277' 
 
 
 ONTARIO JUDICA. 
 
 52 
 
 282 
 
 
 94 
 
 308 
 
 
 K ACT. 
 
 58 
 
 284 
 
 
 95 
 
 309 
 
 % 
 
 
 54 
 
 285 
 
 
 96 
 
 313 
 
 1 
 
 ■ 
 
 65 
 
 286 
 
 
 97 
 
 314 
 
 Altered. » 
 
 
 56 
 
 287 
 
 
 98 
 
 315 
 
 -.. 
 
 
 67 
 
 288 
 
 
 99 
 
 316 
 
 ■ 
 
 R KM ARKS. 
 
 68 
 60 
 
 289 
 
 278 
 
 
 100 
 101 
 
 317 
 
 318 
 
 Altered. 
 
 
 60 
 
 283 
 
 
 102 
 
 320 
 
 
 
 61 
 62 
 
 281 
 293 
 
 
 103 
 104 
 
 324 
 325 
 
 
 
 
 68 
 
 294 
 
 
 105 
 
 326 
 
 
 ip, J. A. Hiili-'.W. 
 
 64 
 
 295 
 
 
 106 
 
 327 
 
 ■ \ 
 
 65 
 
 296 
 
 
 107 
 
 328 
 
 
 
 w 
 
 297 
 
 
 108 
 
 329 
 
 ' 
 
 
 67 
 
 298 
 
 
 109 
 
 330 
 
 
 ly. J. A. Rule 547. 
 
 68 
 
 299 
 336 (a) 
 
 
 110 
 111 
 
 331 
 332 
 
 
 
 1 i 
 
 
 Sup. C. R. 261. 
 
 112 
 113 
 
 333 
 
 Sup.C. R. 338. 
 
 704' 
 
 705 
 
 
 
 114 
 
 334' 
 
 
 H 78 
 
 706 
 
 
 115 
 
 (340 
 
 
 
 ■ ^^ 
 
 ( 707 
 
 
 
 "(346 
 
 
 
 i 1175 
 
 
 116 
 
 341 
 
 
 
 ^m 
 
 708 
 
 
 117 
 
 342 
 
 f 
 
 
 ^m 7( 
 
 714 
 
 
 118 
 
 343 
 
 
 
 ^l 7^ 
 
 715 
 
 
 119 
 
 344 
 
 
 
 ^B 
 
 ) ™,„ 
 
 
 120 
 
 345 
 
 
 
 H 
 
 J 718 
 
 
 121 
 
 346 
 
 Unnecessary. 
 
 
 B 
 
 739 
 
 
 122 
 
 I 346 
 
 ' 
 
 
 1 
 
 
 Unnecessary. 
 
 123 
 
 ) 
 
 ^ ^. 1 
 
 
 J. A. 
 
 71 
 
\ 
 
 
 % 
 
 <a. 
 
 \ 
 
 1122 
 
 RULES, ORDERS, AND PARTS OF ACTS CONSOLIDATED. 
 
 RULES UNDER ONTARIO JUDICA- 
 
 TURE ACT. 
 
 _a5 
 
 
 
 "a 
 
 
 
 Sh 
 
 
 
 o 
 
 Con. Rui,k. 
 
 Rkmauks. 
 
 d 
 
 
 
 :5 
 
 
 
 124 
 
 335 
 
 
 125 
 
 394 
 
 
 126 
 
 (.S'.'('3(i9 
 "( " 371 
 
 
 127 
 
 373 
 
 
 12H 
 
 ( 339 
 '(.S'<'e449 
 
 
 129 
 
 395 
 
 
 130 
 
 396 
 
 
 131 
 
 
 Sup. C. R. 461. 
 
 132 
 
 397 
 
 133 
 
 404 
 
 
 13i 
 
 405 
 
 
 135 
 
 406 
 
 
 136 
 
 407 
 
 
 137 
 
 408 
 
 
 138 
 
 409 
 
 
 13!) 
 
 410 
 
 
 140 
 
 411 
 
 
 141 
 
 413 
 
 
 142 
 
 414 
 
 
 143 
 
 415 
 
 
 144 
 
 416 
 
 
 145 
 
 417 
 
 
 146 
 
 401 
 
 
 147 
 
 402 
 
 
 148 
 
 403 
 
 
 149 
 
 419 
 
 
 160 
 
 398 
 
 
 151 
 
 434 
 
 
 152 
 
 435 
 
 
 158 
 
 436 
 
 
 154 
 
 437 
 
 
 155 
 
 438 
 
 
 1.56 
 
 439 
 
 
 157 
 
 440 
 
 
 158 
 
 369 
 
 
 159 
 
 370 
 
 
 160 
 
 371 
 
 
 161 
 
 372 
 
 
 162 
 
 
 Abrogated. 
 
 163 
 
 ii89* 
 
 
 164 
 
 376 
 
 
 165 
 
 377 
 
 1 
 
 RULES UNDER ONTARIO .lUDICA 
 
 TURE ACT. 
 
 <a 
 
 
 
 ■5 
 
 
 
 « 
 
 
 
 "S 
 
 Con. RuLi:. 
 
 Rksiahks 
 
 d 
 
 
 
 Z 
 
 
 
 166 
 
 378 
 
 
 167 
 
 379 
 
 
 168 
 
 374 
 
 
 169 
 
 375 
 
 
 170 
 
 (641 
 1 ()42 
 
 
 171 
 
 670 
 
 
 172 
 
 641 
 
 
 173 
 
 .381 
 
 
 174 
 
 382 
 
 
 175 
 
 3M3 
 
 
 176 
 
 392 
 
 
 177 
 
 420 
 
 
 178 
 
 423 
 
 
 179 
 
 424 
 
 
 180 
 
 425 
 
 
 181 
 
 42() 
 
 
 182 
 
 427 
 
 
 183 
 
 428 
 
 
 184 
 
 429 
 
 
 185 
 
 430 
 
 
 186 
 
 431 
 
 
 187 
 
 432 
 
 
 188 
 
 433 
 
 
 189 
 
 384 
 
 
 190 
 
 .i85 
 
 
 191 
 
 386 
 
 
 192 
 
 387 
 
 
 193 
 
 388 
 
 
 194 
 
 389 
 
 
 195 
 
 539 
 
 
 196 
 
 
 Sup. C. 1!. : ','!!. 
 
 197 
 
 198 
 
 
 
 |- Seel 170 
 
 199 
 200 
 
 
 Effete. 
 
 ".See "1170" 
 
 
 201 
 
 391 
 
 
 202 
 
 538 
 
 
 203 
 
 646 
 
 
 204 
 
 719 
 
 
 205 
 
 720 
 
 
 206 
 
 721 
 
 
 207 
 
 722 
 
 
 1 208 
 
 723 
 
 
)ATED. 
 
 RULES, ORDERS, AND PARTS OF ACTS CONSOLIDATED. 
 
 1123 
 
 NTABIO .UTDICA- 
 ACT. 
 
 liKMAUK'^ 
 
 jup. 
 
 G. U. : '.10. 
 
 iffeto. 
 
 RULES UNDER ONTARIO JUDICA- 
 
 RULES UNDER ONTARIO JUDICA- 
 
 
 TURE ACT. 
 
 TURE ACT. 
 
 3 
 
 
 
 6 
 
 
 
 
 
 Con. Rule. 
 
 Remarks. 
 
 
 
 Con. Rule. 
 
 REMAnKB. 
 
 6 
 
 
 
 6 
 
 
 
 209 
 
 724 
 
 
 249 
 
 555 
 
 
 210 
 
 725 
 
 
 250 
 
 556 
 
 
 211 
 
 727 
 
 
 251 
 
 557 
 
 
 212 
 
 728 
 
 
 252 
 
 538 
 
 
 218 
 
 729 
 
 
 253 
 
 558 
 
 
 214 
 
 796 
 
 
 254 
 
 653 
 
 
 215 
 216 
 217 
 
 1 
 
 j 
 
 Sup. See C. R. <i:J2-640. 
 
 255 
 256 
 
 f 647 
 
 ■( 654 
 
 655 
 
 
 218 
 
 
 257 
 
 65() 
 
 
 219 
 
 502 
 
 
 238 
 
 660 
 
 
 220 
 
 1177 
 
 
 259 
 
 661 
 
 
 221 
 
 507 
 
 
 2G0 
 
 660 
 
 
 222 
 
 508 
 
 
 261 
 
 663 
 
 
 298 
 
 509 
 
 
 262 
 
 664 
 
 
 
 (488 
 (510 
 
 
 263 
 264 
 
 
 Effete. 
 
 224 
 
 665' 
 
 
 225 
 226 
 
 1 611 
 
 
 265 
 2()6 
 
 ) 
 ) 
 
 See C. R. 663, 668. 
 
 227 
 
 487 
 
 
 267 
 
 669 
 
 
 228 
 
 513 
 
 
 268 
 
 672 
 
 
 229 
 
 514 
 
 
 269 
 
 673 
 
 
 280 
 
 1196 
 
 
 270 
 
 795 
 
 
 481 
 
 515 
 
 
 271 
 
 676 
 
 • ■ . 
 
 282 
 
 516 
 
 
 272 
 
 681 
 
 
 288 
 
 517 
 
 
 273 
 
 682 
 
 
 d84 
 
 518 
 
 
 274 
 
 687 
 
 
 286 
 
 519 
 
 
 275 
 
 688 
 
 
 
 (499 
 4.520 
 (648 
 
 
 a76 
 
 34 
 
 
 286 
 
 
 277 
 
 Se<- 36 
 
 
 
 
 278 
 
 37 
 
 
 287 
 
 522 
 
 
 279 
 
 38 
 
 
 288 
 
 523 
 
 
 280 
 
 39 
 
 
 2,t9 
 
 506 
 
 
 281 
 
 40 
 
 
 m 
 
 400 
 
 
 282 
 
 564 
 
 
 241 
 
 f 617 
 \ 1190 
 
 
 283 
 
 (576 
 
 (577 
 
 
 242 
 
 618 
 
 
 284 
 
 See 609 
 
 
 248 
 
 619 
 
 
 285 
 
 566 
 
 
 244 
 
 551 
 
 
 286 
 
 591 
 
 
 246 
 
 652 
 
 
 287 
 
 592 
 
 
 246 
 
 
 Abrogated C. R. 550. 
 
 288 
 
 593 
 
 
 247 
 
 .553' 
 
 
 289 
 
 See 594 
 
 
 248 
 
 554 
 
 
 290 
 
 595 
 
-Pipff 
 
 f 
 i 
 
 '^\ 
 
 
 1124 
 
 RULES, ORDRKS, AND PARTS OF ACTS CONSOLIDATED. 
 
 RULES UNDI<:R ONTARIO JUDICA- 
 
 RULES UNDER ONTARIO JIIDICA- 
 
 TURE ACT. 
 
 TURE ACT. 
 
 1 
 
 
 
 1 
 
 
 
 « 
 
 
 
 M 
 
 
 
 ^ 
 
 Con. Rule. 
 
 Remarks. 
 
 •s 
 
 Con. Rule. 
 
 Remarkb. 
 
 6 
 
 
 
 d 
 
 
 
 » 
 
 
 
 332 
 
 
 
 291 
 
 500 
 
 
 135 
 
 
 292 
 
 597 
 
 
 333 
 
 362 
 
 
 293 
 
 598 
 
 
 334 
 
 363 
 
 
 294 
 
 599 
 
 
 335 
 
 136 
 
 
 295 
 
 609 
 
 
 336 
 
 137 
 
 
 296 
 
 601 
 
 
 337 
 
 
 rniiecesRary. 
 
 297 
 
 602 
 
 
 338 
 
 780' 
 
 t^ 
 
 298 
 
 603 
 
 
 339 
 
 862 
 
 
 299 
 
 
 Abrogated. 
 
 340 
 
 867 
 
 
 300 
 
 604' 
 
 341 
 
 808 
 
 
 801 
 
 5()8 
 
 
 342 
 
 See 873 
 
 
 302 
 
 509 
 
 
 343 
 
 874 
 
 
 303 
 
 570 
 
 
 344 
 
 858 
 
 
 301 
 
 571 
 
 
 345 
 
 875 
 
 
 305 
 
 572 
 
 
 346 
 
 876 
 
 
 806 
 
 751 
 
 
 347 
 
 888 
 
 
 307 
 
 789 
 
 
 348 
 
 889 
 
 
 308 
 
 
 Abrogated. 
 
 Sup. J. A. Rule 526. 
 
 349 
 
 893 
 
 
 309 
 310 
 
 .......... 
 
 J 
 
 350 
 351 
 
 890 
 891 
 
 
 811 
 
 791 
 
 
 352 
 
 863 
 
 
 812 
 
 792 
 
 
 353 
 
 894 
 
 
 313 
 
 
 Abrogated. 
 
 354 
 
 895 
 
 
 314 
 
 793' 
 
 
 355 
 
 885 
 
 
 315 
 
 748 
 
 
 356 
 
 886 
 
 
 316 
 
 I 
 
 Sun. J. A. Rule 510 
 
 357 
 358 
 
 866 
 887 
 
 
 317 
 
 ) 
 
 ^ J %A I i/ 9 TJ « » '& I ^ W ^A m \J Ty ^ \^ ■ 
 
 
 318 
 
 ■ 753 
 
 
 359 
 
 Sec 782 
 
 
 819 
 
 754 
 
 
 360 
 
 ) 
 
 Unnecessary. 
 
 820 
 
 752 
 
 
 301 
 
 ) 
 
 821 
 
 755 
 
 
 362 
 
 859 
 
 
 822 
 
 750 
 
 
 363 
 
 860 
 
 
 828 
 
 757 
 
 
 364 
 
 878 
 
 
 824 
 
 744 
 
 
 365 
 
 879 
 
 
 826 
 
 760 
 
 
 366 
 
 926 
 
 
 326 
 
 f 704 
 
 
 367 
 
 927 
 
 
 1 ,SVt' 705 
 
 
 368 
 
 929 
 
 
 827 
 
 See 705 (a) 
 
 
 369 
 
 930 
 
 
 328 
 
 708 
 
 
 369a 
 
 932 
 
 
 829 
 
 709 
 
 
 370 
 
 935 
 
 
 880 
 
 797 
 
 
 371 
 
 936 
 
 
 
 f 89 
 97 
 
 
 372 
 
 937 
 
 
 331 
 
 
 373 
 
 939 
 
 
 
 107 
 
 
 374 
 
 944 
 
 
OLIDATED. 
 
 II ONTAIUO JUDICA- 
 IRE ACT. 
 
 RULES, ORDKUS, AND PARTS OF ACTS CONSOLIDATED. 
 
 1125 
 
 Remarkh. 
 
 Unnecessary. 
 
 . .Unnecessary. 
 
 19 
 )0 
 
 n 
 
 29 
 30 
 32 
 35 
 3(5 
 37 
 39 
 44 
 
 RUL 
 
 E8 UNDER ONTARIO JUDICA- 
 
 RULES UNDER ONTARIO JUDICA- 
 
 
 TUR^i ACT. 
 
 1 
 
 
 TURE ACT. 
 
 
 
 
 "a 
 
 
 
 
 
 Con. UvijK. 
 
 Rkmarks. 
 
 "S 
 
 Don. Rule. 
 
 Remarks. 
 
 6 
 
 1 
 
 
 6 
 
 ;z5 
 
 
 
 ■m 
 
 945 
 
 
 418 
 
 20 
 
 
 37(1 
 
 94() 
 
 
 419 
 
 
 Sup. J. A. Rule 517. 
 
 377 
 
 947 
 
 
 420 
 
 30* 
 
 
 37H 
 
 IIHO 
 
 
 421 
 
 31 
 
 
 37'.l 
 
 1 
 
 1 ; 
 
 Unnecessary. See J. A. 
 Rule 341. 
 
 422 
 
 f See 41 
 \ SeeVAH 
 
 
 380 
 
 8(>!) 
 
 
 423 
 
 
 Effete. 
 
 381 
 
 861 
 
 
 424 
 
 
 Sup. See C. R. 41. 
 Abrofjated. 
 
 38'i 
 
 
 See C. R. 873. 
 
 425 
 42(1 
 
 
 383 
 
 im 
 
 Sec'ii, 1-2 
 
 
 384 
 
 (121 
 
 
 427 
 
 840 
 
 
 38') 
 
 622 
 
 
 428 
 
 1170 
 
 
 38(i 
 
 623 
 
 
 429 
 
 1245 
 
 
 387 
 
 624 
 
 
 430 
 
 1247 
 
 
 388 
 
 623 
 
 
 431 
 
 1242 
 
 
 389 
 390 
 
 626 
 
 
 432 
 
 
 Tariff B. 
 
 \J£t\t 
 
 (527 
 
 
 433 
 
 457* 
 
 
 391 
 
 628 
 
 
 434 
 
 1193 
 
 
 392 
 
 649 
 
 
 435 
 
 1195 
 
 
 393 
 
 650 
 
 
 43(1 
 
 1204 
 
 
 394 
 
 651 
 
 
 437 
 
 1194 
 
 
 395 
 
 652 
 
 
 438 
 
 ( SeeVM 
 
 
 39(1 
 
 1131 
 
 
 
 ( ,SVel97 
 
 
 397 
 
 1133 
 
 
 439 
 
 ( See 196 
 
 
 398 
 
 1185 
 
 
 
 "( 1207 
 
 
 399 
 
 1134 
 
 
 439rt 
 
 1207 
 
 
 400 
 
 1132 
 
 
 439 
 
 1 
 
 Sup. See C. R. 196. 
 
 401 
 
 1130 
 
 
 he 
 
 ) 
 
 ■^ L 
 
 402 
 
 1136 
 
 
 439(/ 
 
 1211 
 
 
 403 
 
 90 
 
 
 440 
 
 ' 1201 
 
 
 404 
 
 525 
 
 
 441 
 
 1203 
 
 
 405 
 
 526 
 
 Altered . 
 
 442 
 
 1214 
 
 
 40(1 
 
 528 
 
 
 443 
 
 See 1226 
 
 
 407 
 
 479 
 
 
 444 
 
 1228 
 
 
 408 
 
 529 
 
 
 445 
 
 1220 
 
 
 40i 
 410 
 
 531 
 532 
 
 
 446 
 
 
 Unnecessary, 
 
 
 447 
 
 1230 
 
 
 411 
 
 533 
 
 
 448 
 
 1231 
 
 
 412 
 
 62(> 
 
 Altered. 
 
 449 
 
 851 
 
 
 4ia 
 
 543 
 
 
 450 
 
 853 
 
 
 41^1 
 
 See 847 
 
 Altered. 
 
 451 
 
 447 
 
 
 4ir 
 
 10 
 
 ' 
 
 452 
 
 448 
 
 
 41( 
 
 4r 
 
 ) See 22 
 19 
 
 
 45H 
 
 
 Unnecessary. 
 
 
 45^ 
 
 
 
 [ iT2 
 
 
w^ 
 
 f 
 
 1126 
 
 RULES, ORDERS, AND PARTS OF ACTS CONSOLIDATED. 
 
 RULES UNDER ONTARIO JUDICA- 
 TURE ACT. 
 
 RULES UNDER ONTARIO JUDICA- 
 TURE ACT. 
 
 4 
 
 M 
 
 o 
 
 6 
 55 
 
 Con. Rule. 
 
 Ri;.M.\ifKs. 
 
 1 (U 
 
 "3 
 « 
 
 
 
 d 
 
 497 
 498 
 499 
 500 
 501 
 502 
 603 
 504 
 505 
 506 
 507 
 508 
 509 
 510 
 511 
 512 
 513 
 514 
 515 
 516 
 517 
 518 
 
 519 
 
 520 
 
 521 
 522 
 523 
 
 524 
 
 525 
 
 520 
 
 527 
 528 
 529 
 530 
 531 
 532 
 
 533 
 
 534 
 
 535 
 
 Con. Rci,k. 
 
 Rkmaukb. 
 
 455 
 456 
 
 473 
 474 
 476 
 
 478 
 
 Sup. J. A. Rule 540. 
 
 Effete. 
 
 See J. A. Rule, 519. 
 
 Unnecessary. 
 
 Sup. See R. S. 0. 1887, 
 c. 47, s. 12. 
 
 Unnecessai'y. 
 
 Not consolidated, 
 it 
 
 Unnecessary. 
 Sup. C. R. 271 sub- 
 stituted. 
 
 1175 
 
 Abrogated. 
 
 457 
 458 
 45ft 
 
 863 
 94() 
 317 
 718 
 
 1225 
 177 
 528 
 
 1004 
 190 
 
 460 
 461 
 462 
 468 
 464 
 466 
 466 
 
 483 
 
 48'1 
 
 485 
 
 1191 
 
 1 605 
 
 60C 
 608 
 611 
 612 
 See 614 
 219 
 
 Sup. J. A. Rule 517. 
 
 467 
 468 
 469 
 470 
 471 
 47^ 
 
 20 
 
 See 798 
 
 1174 
 
 1172 
 
 508 
 
 485 
 
 See 1219 
 
 473 
 474 
 
 442 
 444 
 139 
 161 
 172 
 175 
 
 Effete. Amended It. 
 
 476 
 476 
 477 
 478 
 470 
 
 21 
 
 334 
 
 ( 117 
 
 ( 156 
 
 ( 718 
 
 1 726 
 
 191 
 
 800 
 
 See 798 
 
 f 217 
 
 ■( 218 
 
 
 480 
 
 481 
 
 482 
 488 
 
 ( 216 
 
 ■( 218 
 
 214 
 
 215 
 
 
 484 
 
 485 
 
 1 
 
 458 
 
 Abrogated. 
 
 Effete. Rescinded Eules 
 
 48f) 
 
 
 487 
 
 
 
 309, 310. 
 Sup. C. R. 707, 708. 
 Abro<'iLted. 
 
 488 
 
 1255 
 
 1256 
 
 1257 
 
 2 
 
 
 489 
 
 
 
 490 
 
 
 >( 
 
 491 
 
 
 ti 
 
 499 
 
 48() 
 
 f 
 
 ( 
 
 1261 
 
 8 
 
 
 4'W 
 
 
 Omitted Never con- 
 
 4<»4 
 
 
 lirnied by Order in 
 noiiiir.il 
 
 495 
 
 
 4!)() 
 
 ( 
 '( 
 
 
DATED. 
 
 UULES, ORDERS, AND PARTS OF ACTS CONSOLIDATED, 
 
 1127 
 
 NTA.RIO JllDICA- 
 ACT. 
 
 Rkmxukh. 
 
 roj^ated. 
 
 ip. 
 
 ,7. A. llule ''IT 
 
 ifete. Amended U. 
 
 Vbroftated. 
 ffetc. Rescinded Uules 
 
 HO"), HIO. 
 
 up. C. R. 707, TDrt. 
 Abrofiated. 
 
 Omitted. Never con- 
 firmed by Order ui 
 Council. 
 
 RULES UNDER ONTARIO JUDICA- 
 TURE ACT. 
 
 •s Cox. Rll-E 
 
 Election UuleH. 
 Sup. J. \. Iiiilo ")14 I 
 Tiuiff. 
 
 Sup. -J A. Uule r,V.}. 
 
 
 i 7 
 
 
 -.45 
 
 10 
 ( ,S,'<' 22G 
 
 
 547 
 
 1 St'c 277 
 ■( 27i) 
 1 See 15 
 ■( 234 
 
 
 548 
 
 HO 
 
 
 54<.t 
 
 liSt2 
 
 
 551) 
 
 140 
 
 
 551 
 
 141 
 
 
 552 
 
 142 
 
 
 553 
 
 148 
 
 
 554 
 
 144 
 
 
 555 
 
 145 
 
 
 55U 
 
 llti 
 
 
 557 
 
 147 
 
 
 558 
 
 148 
 
 
 55'J 
 
 1411 
 
 
 5»iO 
 
 150 
 
 
 51)1 
 
 151 
 
 
 5(;-2 
 
 152 
 
 
 5(i;i 
 
 158 
 
 
 oC.l 
 
 154 
 
 
 51)5 
 
 1.55 
 
 
 ulKj 
 
 15() 
 
 
 507 
 
 157 
 
 
 5(18 
 
 158 
 
 
 5i;'.l 
 
 15!) 
 
 
 570 
 
 100 
 
 
 571 
 
 17!) 
 
 
 57'-' 
 
 180 
 
 
 57:i 
 
 181 
 
 
 574 
 
 182 
 
 
 RULES UNDER ONTARIO JUDICA- 
 TURE ACT. 
 
 
 o 
 
 ("o.s. Rri.i', 
 
 575 
 57fi 
 577 
 
 ' 578 
 , 57!i; 
 i 580| 
 
 I 581 
 
 ' 5821 
 
 588 
 
 584 
 
 585 
 586 
 
 587 
 
 588 
 589 
 590 
 591 
 592 
 593 
 594 
 595| 
 59('.' 
 597 
 
 183 
 184 
 185 
 18(1 
 187 
 188 
 18!) 
 544 
 540 
 
 I 41 
 
 ■( 188 
 992 
 9!I8 
 999 
 
 1000 
 33(i 
 877 
 ()G(i 
 (i(i7 
 ('.()8 
 
 1207 
 892 
 010 
 898 
 
 1 
 
 ( ,SV(' 4!I0 
 
 598 
 
 -! " i,,i 
 
 
 ( " 578 
 
 599 
 
 " 84 
 
 000 
 
 " .587 
 
 001 
 
 020 
 
 G02| 
 
 1!)8 
 
 ()03| 
 
 199 
 
 004 
 
 200 
 
 005 . 
 
 , 
 
 (SOU 
 
 174 
 
 IiI'MAVKH. 
 
 ■Altered. 
 
 Sup. ('. R. 490. 
 
 Not consolidated. 
 
 RULES H. C. J. 
 
 210 
 
 210 
 
 Sup. C. R. 211. 
 Sup. (". R. 211. 
 
1128 
 
 RULES, OUDERH, AND PARTS OP ACTS CONSOLIDATEO. 
 
 \ 
 
 RULES H. C. J. 
 
 r2 
 
 o 
 
 ;z5 
 
 (> 
 
 7 
 
 8 
 
 !) 
 
 10 
 
 Con, Rulk 
 
 540 
 
 77!) 
 
 Remahkh. 
 
 Abrogated. 
 
 Effete. 
 
 APPEAL ORDERS. 
 ORDERS OF 8th SEPTEMBER, 1871 
 
 86 
 
 36 
 37 
 
 ORDERS OF 30th MARCH, 187H. \ 
 
 7 
 8 
 9 
 10 
 11 
 12 
 18 
 14 
 16 
 16 
 17 
 18 
 19 
 20 
 21 
 22 
 23 
 24 
 
 ( 
 
 800 
 807 
 80H 
 80!» 
 810 
 811 
 812 
 814 
 1195 
 81(1 
 817 
 81K 
 8111 
 820 
 821 
 822 
 
 821 
 82.-, 
 82(1 
 827 
 82H 
 82!) 
 
 Effete. Repeal of former 
 rules. 
 
 Sup. App. O. (17, (18. 
 
 ORDERS OF 30th MARCH, 1H7H. 
 
 "a 
 
 o 
 
 Con. Rui.k 
 
 2.") 
 2(1 
 27 
 2H 
 2!t 
 30 
 31 
 32 
 33 
 34 
 •Si) 
 3(1 
 37 
 38 
 3(» 
 39(( 
 40 
 41 
 42 
 43 
 44 
 45 
 4(1 
 47 
 48 
 4!l 
 .50 
 5] 
 52 
 53 
 54 
 55 I 
 5(1 I 
 57 
 
 5<»| . , 
 
 (lOi 
 fll! 
 
 (12; 
 
 (3 
 (14 
 05 
 (l(5i 
 (17' 
 (18 
 (19 1 
 
 Rkmaisks. 
 
 831 
 
 835 
 83(1 
 837 
 838 
 83!) 
 840 
 841 
 842 
 1195 
 843 
 
 llnnecesHivry. 
 
 Tariff A. 
 
 Insolvency niattciw. 
 Effete. 
 
 844 
 
 845 
 208 
 20!) 
 
 481 
 
 475 
 
 Sup. C. R. 4(51. 
 See Tariff. 
 
 Vacations. Sup. Sre 
 
 C. R. 48(1. 
 Altered. 
 
 Sup. .SVe C. ]{. 48r,. 
 " 471. 
 
 XInnecessary. 
 
 Sup. 48 V. c. 13, s. 20. 
 
 823 
 819 
 
(VTKl). 
 
 RULES, ORDERS, AND PARTS OF ACTS CONSOLIDATED, 
 
 1129 
 
 MARCH, IH7H. 
 
 STATUTES, 11. S. ()., 1877. 
 
 Ukmauks. 
 
 STATUTEH, H. S. ()., 1H77. 
 
 ecessary. 
 ff A. 
 
 ilvency inntUin. 
 ite. 
 
 p. C. K. 4('.l. 
 Tariff. 
 
 ications. riuii. ^V 
 C. K. 48(1. 
 tered. 
 
 IP, ,SVf C. K. 48:.. 
 ^ .. 474. 
 
 inecessary. 
 up. 48 V. c. i:i, s. 20. 
 
 S 
 k; 
 
 :i!) 
 
 40 
 
 Skction. 
 
 Con. 
 Rum:. 
 
 - ' 
 
 923 
 
 U2 
 
 i :■<:« 
 
 924 
 
 22 
 
 585 
 
 27 
 
 804 
 
 28 
 
 805 
 
 30 
 
 H03pfn'( 
 
 31(1) 
 
 813 
 
 (2) 
 
 826 
 
 32 
 
 See 827 
 
 40 
 
 
 41 
 
 832 
 
 42 
 
 833 
 
 44 
 
 830 
 
 12 1 
 
 
 
 i;} ,- 
 
 
 14 
 
 1,5 j 
 
 1 
 
 
 20 
 
 
 2:5 
 
 
 30 
 
 
 31 
 
 
 33 
 
 (557 
 
 34 
 
 (158 
 
 3.5 
 
 659 
 
 43 
 
 See 12 
 
 4H 
 
 
 21 
 
 
 4() 
 
 1088 
 
 47 
 
 1185 
 
 48 
 
 1186 
 
 92 
 
 465 
 
 93 
 
 274 
 
 94 
 
 273 
 
 9.5 
 
 254 
 
 9fi 
 
 255 
 
 97 
 
 1243 
 
 100 
 
 565 
 
 102 
 
 630 
 
 Rksuhkh, 
 
 Suj). Sec C. R. (122. 
 
 Sup. See C. R. 214, 
 216. 
 
 Sup. See C. R. 210. 
 719. 
 See C. R. 0. 
 Sup. Sec C. R. 84(1. 
 
 Sup. Sec C. R. 7. 
 
 See C. R. 30. 
 
 Sup. &VcC. R. 210, 
 
 STATUTES, H. S. O., 1877. 
 
 O 
 
 40 
 41 
 
 Skction, 
 
 42 
 49 
 
 50 
 
 103 
 12 
 13 
 14 
 15 
 16 
 17 
 
 7 
 8 
 9 
 
 10 
 11 
 12 
 13 
 14 
 15 
 111 
 17 
 IH 
 
 19 
 
 20 
 
 (2) 
 
 22 
 33 
 34 
 35 
 36 
 37 
 38 
 39 
 42 
 43 
 
 Con 
 
 Rn.i:. 
 
 Rkmauks. 
 
 .•Sup. .SVfC.R. 1219. 
 , lEffete. 
 
 •2(1 
 
 27 
 
 27 {a) 
 
 2H (r) 
 
 29 
 
 12(12 
 
 12(13 
 
 12(14 
 
 441 
 
 310 
 
 1007 
 
 1008 
 
 1009 
 
 1010 
 
 1011 
 
 1011 
 
 1012 
 
 926 
 
 932 
 
 927 
 
 933 
 
 934 
 
 934(a) 
 
 6.50(.<) 
 
 690 
 
 691 
 
 692 
 
 693 
 
 694 
 
 695 
 
 696 
 
 697 
 
 1182 
 
 Sup. SedC. R.444. 
 
 ( 
 
 1046 
 
 226 
 
 Sup. .SVcC. R.221. 
 231. 
 

 1130 
 
 IIULKH, OIIDKKH, AND I'Mll'H OF ACTH CONHOMDATI'.D. 
 
 STATUTES, U. K. ()., IH77. 
 
 I 
 
 O 
 
 50 
 
 Section, 
 
 7 
 
 8 
 
 y 
 
 10 
 
 11 
 
 12 
 IH 
 
 11 
 ir> 
 
 Ki 
 17 
 18 
 
 11) 
 
 •20 
 •21 
 •22 
 
 •>a 
 
 21 
 25 
 20 
 27 
 28 
 •2',» 
 
 30 I 
 
 31 I 
 32 
 33 
 31 
 3ri 
 3B 
 37 
 38 
 30 
 40 
 41 
 42 
 43 
 44 
 45 
 40 
 48 
 49 
 
 Con. 
 Rum;, i 
 
 Ukmauks. 
 
 2^2(i 
 
 •227 
 
 1253 
 
 1253 
 
 ,SV«221 . 
 230 
 
 jSiii). .S'.vC. U. 2'2(1, 
 
 STATUTES. H. K. ()., 1H77. 
 
 Sup. .SVt'C. 
 
 .S.'<' 224 
 
 iSii)). SirC. 
 
 R. 230. 
 270. 
 243. 
 
 K. •233. 
 240. 
 •241. 
 24(). 
 
 •245C2) 
 253 
 2C.7 
 2fl8 
 254 
 
 Hup. Si'cC. 
 
 1047 
 ( 242 
 ( 1011) 
 1048 
 1010 
 1050 
 
 1051 
 1052 
 1055 
 .SVY'10(i7 
 10f)2 
 10tl3 
 10(54 
 10G5 
 lOtJC. 
 1088 
 10(59 
 232 
 
 U. 25(5, 
 23(5, 
 238, 
 23!), 
 
 Effete. 
 
 Sup. .SV.' C. R. 271 
 ;Sup. .SVc C. R.'232 
 1 271. 
 
 51 
 52 
 54 
 55 
 5(i 
 57 
 58 
 5!) 
 (50 
 
 (51 
 
 (52 
 
 (53 
 
 (54 
 
 (55 I 
 
 (5(5 , 
 
 (57 
 
 (58 
 
 (Si) 
 
 70 
 
 71 
 
 73 
 
 74 1 
 
 75 > 
 7(5 
 
 77 
 
 78 ) 
 
 70 
 
 80 ) 
 
 81 
 
 82 
 
 83 
 
 84 
 
 85 [ 
 
 80 I 
 
 871 
 
 88/ 
 
 80 
 
 90 
 
 91 I 
 
 Sup. ,v<v c. u. -ni. 
 
 I " 237. 
 
 .S'.rC. 1{. in. 
 
 92 
 93 
 94 
 95 
 
 4(51 
 
 |8up. ,svc(:. 11. •j.'iu. 
 Effete. 
 
 459 
 
 Sup. .Sc,' ('. K. 'JHl, 
 Sup. ,SV,' C. K.'.'Hl 
 
 2H5. 
 Hup. .SV,' ('. H. •.'s(l 
 
 •287. 
 liffeto. 
 
 Sup. S,'fC. R. 705. 
 Sui). .V,r C. H. 707, 
 
 1175. 
 ,Snp. ,S',r ('. K 1711. 
 I " 275. 
 
 I •• 7oa. 
 
 1243 
 1214 
 
 .SW'414 
 
 1170 
 
 Sup. .SV,' ('. ll.lt'il. 
 
 :t2.'). 
 Sup. ,s,r ( '.]{.. 'i'il, 
 441. 
 
 Sup. .S.rC. K.;{'21, 
 414. 
 
 Sup. .svcC.R.Ho;). 
 ■111. 
 
 Su]). ,S,vC.R.;!10. 
 
 I't si'il. 
 
 Sup. .S,v C.llU . 
 
 m. 
 
 J'M'fete. 
 
 Sup. .SV,' C. K. 40ti, 
 
 3!I4. 
 
 sen. 
 
 871. 
 
 m. 
 
TKH. 
 
 liriiEH, OimKllH, AND I'AUTS OF ACTS CONSOt.tltATKI). 
 
 1131 
 
 S. »)., l^<77. 
 
 Ul'.MMIlifi. 
 
 Stii). N.vC.U. 'iTl. 
 •IM. 
 I^w-C. K. 411. 
 
 |8ui). NccC. H.'^'^'O. 
 
 I Effete. 
 
 Sup. S.V (!. 11. '2H1. 
 i,Siil>. S,-rC. U.2H1 
 I i 28;-). 
 
 (Sup. str c'.u.^.si; 
 
 I 2H7. 
 .Effete. 
 Isui). .SVi'C.R. 70;). 
 
 ;iHui.. .sv,.('.H.707, 
 , 117."j. 
 
 Msup. N,rC.H nii. 
 ■■| ' .. •275. 
 
 ".".i ■■ ''^'''' 
 
 •A i 
 
 4l 
 4 I 
 
 :V2.'.. 
 •; Bup. ,sv,'C.K.:c^l. 
 
 ( Sup. ,s,.'('.K.:«l. 
 I 414. 
 
 ..Sup. .sv<.c.ii.;m 
 
 STATUTES, U. S. ()., 1^77. 
 
 70 
 
 Isup. N'Y C. II. ;54o, 
 
 !sup. .SV<'C.11.34. 
 
 I .. 391. 
 
 .Isup. .S,r(;.H.10ti, 
 
 i .. iS'.ll. 
 
 ' i .. Sli'.l. 
 
 •j .. 871. 
 
 ■ ! .. 181. 
 
 I! 
 
 t8 1 rtKirrioN. 
 
 cot 
 
 m 
 
 '.17 
 
 !>!) 
 
 100 
 101 
 102 
 
 103 1 
 
 104 ' 
 
 105 ) 
 10*) I 
 107 ; 
 lOrt 
 lO'J 
 110 
 111 
 112 
 113 
 114 ) 
 11.5 ' 
 IK) , 
 117 I 
 118 
 
 lilt 
 120 
 
 121 
 
 123 I 
 
 124 I 
 125 
 120 
 127 
 128 
 
 132 
 
 13.-) 
 
 13« 
 
 138 
 141 
 142 
 144 
 
 Con. 
 Ui;m-:. 
 
 l{K>r;.iii;H, 
 
 Sup. .SVc C. 
 Sup. .SVc C, 
 
 411. 
 Sup. ,s«r(: 
 
 ;i!)',». 
 
 Sup. ,SV('C 
 I'Utete. 
 Suj). .S'ci'C 
 
 ST.VTr'l'KS, |{. s. (»., 1877. 
 
 ( Sup. .S'<v C. 
 ••• I 131-140. 
 
 Sup. Si'i' ('. 
 
 171 ; 
 Sup. .S'<'< C. 
 
 U.3;)i, 
 R. 3il7, 
 
 U. 3!ll, 
 
 H.371. 
 
 11. 3<J4.i 
 
 3114.' 
 
 U.3!»l, 
 
 H. (132.' 
 
 U- (133. 
 (i3r). 
 3!)4.i 
 373.1 
 
 50 
 
 ;Sup. See C. R. 3',t4. 
 
 38!) 
 
 ( SU]). See C 
 138. 
 Sup. .Sec (! 
 
 Sup. .S('(' C. 
 et .S('(/. 
 
 Sup. .S'('(' C. 
 
 031 
 
 ( jSup. ,S'('(' C. 
 ( ' et .SCI/. 
 (Sup. See C. 
 I 414. 
 I Sup. See C. 
 ( el seij. 
 
 iSup. See C. 
 
 071) 
 
 SlUTKlS. 
 
 . R. 41. 
 
 
 R. 3<)4. 
 
 423, 
 
 R. 1()4. 
 
 
 R. 415. 
 
 
 427. 
 414. 
 384. 
 385. 
 R. 434. 
 
 
 R 303, 
 
 
 U. .-iOl. 
 
 
 R. 3110. 
 373. 
 
 ' 
 
 147 
 
 148 
 
 141) 
 
 150 
 
 151 
 1.52 
 153 
 154 
 155 
 
 15(i 
 
 (••i): 
 
 157 
 
 158 ) 
 151) 
 1()0 ) 
 
 101 
 
 ltl2 
 1(13 
 K14 
 1(15 
 1()() 
 1(17 
 1G8 
 
 1()1) 
 
 170 
 
 171 
 172 
 173 
 174 
 175 
 17(1 
 177 
 178 
 171) 
 180 
 185 
 180 
 187 
 
 188 
 
 C!()S. 
 Rui.K. 
 
 270 
 
 Rkmakkh. 
 
 712 
 
 I Su]). See (' 1(. -11 
 I ; 138. 
 ..Effete. 
 
 I'Sup. See ('. R.7()5. 
 711). 
 
 I'ltfete. 
 
 ISi.p. SeeV It. 1174. 
 i " 053. 
 
 1200 
 
 I 487 
 
 , 4114 
 
 41)5 
 
 i 
 
 Sup. .S',v (I. n. 41, 
 
 > 
 
 138. 
 
 ( 
 
 Sup. .S-Y ('. R.IUO, 
 
 1 
 
 ('/ .•>■('(/. 
 
 1 41)3 
 
 
 1 41)0 
 
 
 4111) 
 
 
 500 
 
 
 501 
 
 
 504 
 
 
 505 
 
 
 
 Sup. SeeC.n. 1177. 
 
 702 
 
 
 1 
 
 Sup. .SV.' C. R. 507, 
 
 ( 
 
 et xeij. 
 
 1 
 
 Sup. See C. R. 507, 
 
 ■ ■ ' ■ ( 
 
 514, et .viv/. 
 
 
 Sup. .s>,. C.R.(il7. 
 
 
 (U'J. 
 
 575 
 
 Altered. 
 
 
 See C. R. 57(;. 
 
 571) 
 580 
 581 
 
 582 
 
 Sii, .M"C. R..578, 
 583. 
 
 Sup. Set (J. R. 554, 
 I I ('/ xeq. 
 
 .!Sup. .s,vC. R.1170. 
 I iSup .Sec G. R. 554, 
 ( el .•>■('(/. 
 
1132 
 
 RULES, ORDERS, AND PARTS OP ACTS CONSOLIDATED. 
 
 STATUTES, R. S. ()., 1H77. 
 
 
 0-' 
 
 '22H I 
 
 22!) I 
 
 230-2;{o 
 
 23G I 
 to 
 
 240 ) 
 
 241 I 
 
 242 , 
 243 
 244 
 
 245 
 
 246 
 
 247 
 
 248 
 
 240 
 
 250 
 
 251 
 
 257 
 
 258 
 
 259 
 
 260 
 
 261 
 
 262 
 
 270 
 
 271 
 
 272 
 
 273 
 
 274 ) 
 
 275 
 
 276 I 
 
 277 I 
 
 278 , 
 27!) 
 280 
 281 
 
 283 > 
 
 284 I 
 285 
 
 286 . 
 
 287 I 
 288 
 28!» 
 2!)0 
 2i»l 
 292 
 293 
 
 ! 
 
 Cox. j 
 
 RULK. j 
 
 Rkmaiiks. 
 
 Sup. ,V(v C. R. 
 
 ( iSup. S,;- C. R. 
 I I 622. 
 
 1 
 
 620. 
 622. 
 
 620, 
 
 629 
 
 Effete. 
 
 Sup. Si',' C. R 
 
 'Effete. 
 
 Sup. ,SVf C. II. 
 
 661. 
 
 654. 
 664. 
 C65. 
 669. 
 665. 
 
 Effete. 
 
 677 
 678 
 
 674 
 675 
 
 Sup. ,SV,' C. R. 681. 
 
 Sup. .S'.-' C. R. 
 
 468 
 689 
 
 790 
 799" 
 
 1258 
 12.59 
 
 Si',' C. R. 798. 
 Sup. S.'c C. R. 
 
 Sui). Sr,' C. R. 
 665. 
 
 Sup. .Sc- C. R. 
 688. 
 
 <;82. 
 
 444. 
 446. 
 
 444. 
 663, 
 
 687, 
 
 Sup. .See C. R. 219. 
 
 Sup. .SV,' C. R. 798, 
 
 Sui). SV.' (J. R. 791. 
 
 Altered. 
 
 Sup. .S<vC. R.1170. 
 
 STATUTES, R. S. O., 1877. 
 
 o 
 
 50 
 
 Skction. 
 
 Con. 
 
 RuLK. 
 
 294 I 
 
 295 / 
 29() 
 297 
 298 
 
 299 
 
 300 
 
 301 
 
 302 I 
 
 303 / 
 304 
 305 
 306 
 
 307 I 
 
 308 ) 
 309 
 310 
 311 
 312 
 
 313 
 
 315 
 
 316 
 
 317 
 
 321 
 
 322 
 
 323 I 
 
 331 I 
 
 332 
 
 333 
 
 335 
 
 336 I 
 
 337 I 
 
 338 I 
 
 339 ) 
 
 340 > 
 
 341 I 
 342 
 
 343 1 
 
 344 I 
 
 347 1 
 
 (1)1 
 (2) 
 
 (3)l 
 
 348 I 
 
 73.3 
 735 
 
 926 
 932 
 931 
 
 Hkmai;ks. 
 
 940 
 941 
 
 ( 
 
 942 
 943 
 
 Effete. 
 
 Sup. Sri'C. H. 7(i7. 
 Sup. Si'cC. li. 7(17, 
 
 m;3. 
 
 llftete. 
 
 Sup. Sec ('. 1!. TtiT, 
 79H. 
 
 Sup. S,-e C. R. '21. 
 
 Sup. .SV,-C. I!.!t;i"). 
 !i;t7. 
 
 Sup. .S'.rC. I!.!ill, 
 945. 
 
 Sup. .SV<'(', K. Itlti. 
 IIHO. 
 
 m. 
 
 lEffete. 
 
 :Sup. .SV--' C. H. NWl. 
 
 1212 
 
 Sup. .SVcC. K.1170. 
 
 Sup. ,S<vC. Ii641. 
 642. 
 
 Sup. .SV.'C.R. 117(>. 
 
 Sup. .SVc C.K.I IT-i. 
 
ATKD. 
 
 RULES, ORDERS, AND PARTS OF ACTS CONSOLIDATED. 
 
 11 S3 
 
 t. S. O., 1H77. 
 
 Ri:mai;KS. 
 
 Effete. 
 
 .Sup. ,SVcC.H.7<".7. 
 
 I Suv. .SVC. r>.7ij<, 
 
 ■( 8tJ3. 
 
 . Effete. 
 
 I Hup. SccV. H.'lK. 
 
 \ 7'.»H. 
 
 Sup. S.cC. U.'il- 
 
 .Sup. S.'.C. l!.!t»5- 
 
 
 it 
 
 
 m. 
 
 ■■ 
 
 ■ • 
 
 
 \m. 
 
 10 
 
 
 
 
 a 
 
 1 Sup. 
 
 .S'ci 
 
 C 
 
 U.'.ttl. 
 
 • , ',t4r 
 
 
 
 
 12 
 
 
 
 
 13 i 
 
 . . .Hup. 
 
 ,S'/'( 
 
 {' 
 
 . r..".iii'i. 
 
 llsO. 
 88."). 
 
 1 
 
 li 
 
 
 SHIi. 
 
 lOffete. 
 :: Sup. .SVC.li.^H'- 
 
 I 
 
 .iSup. .svC. IMl'"- 
 ,'sup. N.vC.UO-Jl- 
 
 I'J 
 
 M-1. 
 
 Sup. 
 
 .SV,.('.K.117( 
 
 :Sup.N.''C.H.n71 
 
 SUATUTES, U. S. 0., 1877. 
 
 STATUTES. It. H. 0., 1877. 
 
 i' 
 
 OS ; 
 •S 1 
 
 Section. 
 
 Con. 
 Rtilk. 
 
 Rkmarks. 
 
 
 Skition. 
 
 Con. 
 Rule. 
 
 Remarkb. 
 
 a 
 
 
 i 
 
 
 u 
 
 51 
 
 
 
 
 r.oi 
 
 349 
 
 i 
 1173 
 
 
 43 , 
 
 
 
 ! 
 
 350 
 
 1170 
 
 
 
 44 
 
 
 
 
 351 ) 
 352) 
 
 
 Sup. .S,v<;. K. 1170 
 
 
 45 ' 
 40 - 
 
 ( 
 
 Sup. ,SVt' C. R. 020, 
 et acq. 
 
 
 353 
 
 
 I'.Mi. 
 
 
 47 
 
 1 
 
 
 354 
 
 
 474. 
 
 
 48 
 
 49 1 
 
 50 1 
 
 
 
 51 
 
 2 1 
 
 
 224. 
 
 
 1 
 
 Sup, S<vC.R.G41, 
 
 
 4 
 
 ( 
 
 Sup. .SV,-C. R. -iliH, 
 
 
 51 ) 
 
 1 
 
 042. 
 
 
 1 
 
 238. 
 
 
 52 
 
 730 
 
 
 
 5 1 
 
 
 Sup- Sfc C. R. 243. 
 
 
 53 
 54 
 
 731 
 732 
 
 
 
 7 
 
 
 .SVc C. R. 252. 
 
 
 KK 
 
 ( 
 
 Sup. See C. R. 040, 
 
 
 8 
 
 
 l-:ffcte. 
 
 
 
 1 
 
 et seq. 
 
 
 y 
 
 
 Sup. See C. R. 277. 
 
 
 08 
 
 
 Sup. ,S,..'C. R. 707. 
 
 
 10 
 
 1 
 
 Sup. ,SV^ C. R. 293, 
 
 
 71 
 
 359 
 
 
 
 1 
 
 294. 
 
 52 
 
 1 
 
 1129 
 
 
 
 11 
 
 ( 
 1 
 
 Sup. See C. R. 277, 
 279. 
 
 1 
 1 
 
 2 1 
 
 3 J 
 
 1139 
 
 
 
 12 
 
 1 
 1 
 
 Partly Kup. .S',-,. C. 
 R. 295. 
 
 1 
 
 4 
 
 1 224 
 "( 1112 
 
 
 
 13 
 
 
 Sup. ,SV(' C. R.297. 
 
 
 5 
 
 
 I'^flete. 
 
 
 14 I 
 
 ( 
 
 Sup. See C. R, 309, 
 
 1 
 
 
 
 iiio 
 
 
 
 15 J 
 
 1 
 
 371, 399, 41(i, 449. 
 
 i 
 
 7 ) 
 
 
 Kffetfi. 
 
 
 10 
 
 
 Sup. See C. R. 381. 
 
 ' 
 
 8) 
 
 
 
 
 17 
 
 
 384. 
 
 
 9 
 
 1128 
 
 
 
 18 
 
 
 410. 
 
 
 10 
 
 1117 
 
 
 
 19 
 
 
 423. 
 
 
 11 
 
 1118 
 
 
 
 20 
 
 
 714. 
 
 
 12 
 
 1119 
 
 
 
 (2) 
 
 710 
 
 
 
 13 
 
 1120 
 
 
 
 23 
 
 653 (a) 
 
 
 
 14 
 
 1121 
 
 
 
 24 
 
 
 Sup. See C. R. 554. 
 
 
 15 
 
 1122 
 
 v 
 
 
 25 
 
 
 054. 
 
 
 10 
 
 1123 
 
 
 
 2(i 
 
 <)98 
 
 
 
 17 
 
 1124 
 
 
 
 27 
 
 099 
 
 
 
 1 18 
 
 1125 
 
 
 
 28 
 
 700 
 
 
 
 19^ 
 
 
 
 
 31 
 
 750 
 
 
 1 
 
 20 
 
 
 
 
 32 
 
 ( 
 "( 
 
 Sup. See C. R. 072, 
 073, 
 
 
 21 ]■ 
 22 
 
 S'eeliae 
 
 
 
 34 ) 
 
 1 
 
 Sup. .SVe C. R. 082, 
 
 
 23 j 
 
 
 
 
 35 )' 
 
 ( 
 
 707. 
 
 
 24 
 
 1127 
 
 
 
 30 
 
 870 
 
 
 
 25 
 
 
 Unuecessary. 
 
 
 37 
 
 
 Effete. 
 
 
 20 
 
 ii29 
 
 
 
 39 1 
 
 
 
 
 27 
 
 
 Sup. See C. R. 840. 
 
 
 40 
 
 ( 
 
 Sup. See C. R. 020, 
 et seq. 
 
 
 28 
 
 
 1170. 
 
 
 41 
 
 42 
 
 '( 
 
 53 
 
 0-18 
 
 t 
 
 Sup. C. R. 1098- 
 1110. 
 
1134 
 
 RULES, ORDERS, AND PARTS OF ACTS CONSOLIDATED. 
 
 STATUTES, 11. S. O., 1H77. 
 
 u 
 
 04 
 
 53 
 
 54 
 
 S6 
 
 8 
 
 9) 
 10) 
 11 
 12 
 14 
 13 
 16 
 17 
 18) 
 19 J 
 20 
 21 
 22 
 
 Section. 
 
 Con. 
 Rule. 
 
 lit 1 
 
 
 20 1 
 
 
 21 
 
 
 22 
 
 
 23 
 
 
 24-27 
 
 
 28 
 
 iiii 
 
 2!) 
 
 
 11 
 
 1155 
 
 12 
 
 1156 
 
 13 
 
 1157 
 
 15 
 
 1158 
 
 16 
 
 1159 
 
 17 
 
 1160 
 
 18 
 
 1161 
 
 1J» 
 
 
 20 
 
 1 
 
 21 
 
 
 22 
 
 1162 
 
 23 
 
 1166 
 
 24 
 
 1167 
 
 25 
 
 1168 
 
 26 
 
 A 
 
 116S) 
 
 Rkmakks, 
 
 Sup. See C. R. 252, 
 
 et se(j. 
 Sup. See C. R. 704, 
 
 et nei]. I 
 
 Sup. See C. R. 368, 
 
 et seq. 
 Sup. SecQ..\{. 653. 
 Effete. 
 
 Sup. .Set' C. R. 1170. 
 
 I'iffete. 
 
 Slip. ,SVt' C.ii. H63, 
 
 866. 
 Tariff C. \ 
 
 24!t 
 253 
 
 Sup. See C.R. 1170. 
 Partly Sup. See C. 
 
 R. 224, 243, 244. 
 Sup. SeeC.W. 231, 
 
 233, 240, 250. 
 
 Part effete. 
 
 2<)2 
 713 
 
 290 
 291 
 
 Sup. See C. R. 252. 
 Alter*"! . 
 
 Sup. See C. R. 232. 
 253. 
 
 Effete. 
 
 Sup. .SVcC. R.1170. 
 
 i 
 
 STATUTES, R. S. O., 1877. 
 
 
 g Skction 
 
 Oi 
 
 58: 
 
 69 
 
 62 
 
 23 
 24 
 25 
 26 
 27 
 
 29 
 
 41 
 
 \] 
 
 3 
 4 
 5 
 6 
 7 
 8 
 9 
 10 
 
 11 I 
 
 12 ) 
 13 
 
 2 
 3 
 4 
 
 5 
 6 
 
 7 
 8 
 
 y 
 
 10 
 
 11 
 
 12 
 
 13 
 
 14 
 
 15 
 
 16 ) 
 
 17) 
 
 18 
 
 20 
 
 15 
 
 16 
 
 18 
 
 19 
 
 20 
 
 21 
 
 Con. 
 Rule. 
 
 364 
 
 364 
 
 365 
 3(i« 
 
 367 
 
 949 
 950 
 951 
 952 
 953 
 954 
 955 
 956 
 957 
 
 958 
 959 
 9C0 
 
 See 961 
 
 962 
 
 C59 
 
 1254 
 
 562 
 
 586 
 587 
 588 
 
 Remakks. 
 
 Sup. Sec C. R. :j!ii. 
 
 Effete or Sup. .SVe 
 
 C. R. 863. 1170. 
 See C. R. 863. 
 
 Effete. 
 
 ,SVt> C. R. 304. 
 
 Effete. 
 Unnecessary. 
 
 See C. R. 653, !)l!i. 
 
 See C. R. 963. 
 
ITED. 
 
 . S. O., 1H77. 
 Hemmiks. 
 
 Effete or Sup. SV*- 
 , c. K. 8'-:*. 11^0- 
 * \see C. K. W.H. 
 
 Effete. 
 
 RULES, ORDERS, AND I'ARTS OF ACTS CONSOLIDATED. 
 
 1135 
 
 S'J'ATUTES, R. S. ()., 1877. 
 
 ^ ! 
 
 0) 
 
 5i Section, 
 
 tJ2 
 
 B4 
 
 fi-i" 
 i()5 
 KU) 
 
 ^67 
 
 [See C. K. :^''-t- 
 
 Effete. 
 
 Unnecessftry. 
 
 »4'.» 
 <)50 
 (51 
 52 
 )5:-i 
 154 
 955 
 '.)5() 
 «.57 
 
 " 0.58 
 1)50 
 000 
 
 1 061 
 
 0(J2 
 
 SVe 
 
 c.B.f's;^-'"'' 
 
 ISec C, H. yea- 
 
 C59 
 1254 
 5f)2 
 586 
 587 
 588 
 
 22 
 
 7 
 
 •I 
 
 10 
 
 11 
 
 12 
 13 
 
 14 
 
 Con. I 
 Rule, i 
 
 (12 
 63 
 64 
 65 
 66 
 67 
 68 
 60 
 72(2) 
 72(3) 
 
 liKMAliKS. 
 
 580 
 
 I 
 
 lEffete. 
 
 808 i 
 
 iSup. ,SV^' C. R. 866 
 
 i|Sup. Si'c C.R. 803, 
 ••■• ,| 804. 
 ;Sup. See C. R. 895 
 
 8(i5 I 
 ( 864 I 
 t 001 
 
 15 I 
 
 16 1 
 
 004 
 
 17 
 
 905 
 
 18 
 
 850 
 
 19 
 
 809 
 
 34 
 
 900 
 
 41 
 
 006 
 
 42 
 
 007 
 
 44 
 
 800 
 
 45 
 
 1233 
 
 46 
 
 1234 
 
 47 
 
 1235 
 
 48 
 
 1236 
 
 40 
 
 1237 
 
 50 
 
 1238 
 
 51 
 
 1239 
 
 52 
 
 1240 
 
 53 
 
 806 
 
 54 
 
 897 
 
 55 
 
 025 
 
 56 
 
 873 
 
 57 
 
 012 
 
 58 
 
 013 
 
 59 
 
 014 
 
 60 
 
 015 
 
 61 
 
 016 
 
 !tl7 
 018 
 010 
 020 
 021 
 022 
 
 STATUTES, R. S. O., 1877. 
 
 g I Skction. 
 
 oi 
 
 681 
 
 6 
 7 
 9 
 10 
 11 
 12 
 19 
 
 Con. 
 
 RULK. 
 
 Rkmauks. 
 
 .S'wl080 
 .S'.vl091 
 ,SV.'1093 
 .S'('f'1004 
 .ScclOOo 
 .SV'('1096 
 ,SVel007 
 
 41 VICT. 
 
 7 
 
 585 
 
 8 
 
 503 
 
 
 ( 409 
 
 
 
 .' 520 
 
 
 (524 
 
 4-J VICT 
 
 Sup. .SVfC.R.1170 
 
 See C. R. 863. 
 867. 
 
 15 
 
 2 
 
 3 
 4 
 6 
 
 7 
 
 124() (a) 
 574 
 903 
 
 Effete. 
 
 Sup. See C. R. 487. 
 
 44 VICT. 
 
 24 
 
 
 25 
 
 See 225 
 
 26 
 
 650 ((() 
 
 44 
 
 740 
 
 83 ) 
 
 56» 
 
 84 ) 
 
 
 1 
 
 1163 
 
 2 
 
 ll(i4 
 
 3 
 
 1165 
 
 See C. R. 226. 
 
1136 
 
 RULES, ORDERS, AND PARTS OF ACTS CONSOLIDATED. 
 
 47 VICT. 
 
 49 VICT. 
 
 a 
 
 o 
 
 Section. 
 
 Con. 
 Rule. 
 
 Remauks. 
 
 u 
 10 
 
 Section. 
 
 Con. 
 Rule. 
 
 Remakks. 
 
 14 
 19 
 
 7 
 11 
 
 275 
 314 
 
 
 12 
 
 13 
 
 17 
 42 
 
 928 
 
 ( 1150 
 
 • 1161 
 
 ( 1262 
 
 1236 
 
 1163 
 
 
 48 VICT. 
 
 
 
 8 
 11 
 12 
 
 21 
 
 22 
 27 
 
 1104 
 
 311 
 
 312 
 
 ( 41 
 
 ( See 138 
 
 ( 190 
 
 "( 1174 
 
 1152 
 
 
 
 18 
 
 50 VICT. 
 
 
 7 
 
 7 
 
 902 
 
 
ATED. 
 
 RULES OF COURT. 
 
 1137 
 
 CT. 
 
 RULES OF COURT AFFECTING THE COMING INTO FORCE OF THE 
 
 CONSOLIDATED RULES. 
 
 Rem\kks. 
 
 VICT. 
 
 Whereas the Act- or parts of Acts mentioned 'n Sclicdule A of the Revised 
 Statutes of 1887, stand repealed from and after the cominf,' into force of the said 
 Revised Statutes, 1887, and whereas a consolidation of all tlie statutory provisions 
 and other Rules affecting practice and procedure is in preparation, but will not he 
 ready for adoption until tlie first day of February next. 
 
 It is hereby ordered that all matters of practice and procedure affected by the 
 said Acts shall meanwhile be deemed in force as if the same were in substance 
 repeated in this Rule. 
 
 iUst December, 1887. 
 
 (Signed) J. H. HAGARTY, C..T.O. 
 C. S. PATTERSON, J.A. 
 F. OSLER, J. A. 
 J. A. BOYD, C. 
 
 (Signed) THOS. FERGUSON, J. 
 JOHN E. ROSE, J. 
 THOMAS ROBERTSON, J. 
 W. G. FALCONBRIDGE, J. 
 
 02 
 
 Whereas the new Consolidated Rules are not to go into force until the first day 
 of March, next. 
 
 It is hereby ordered that all matters of practice and procedure affected by the 
 Acts referred to in the Rule of 31st December, 1887, shall be deemed to be in force 
 until the first day of March aforesaid, as if the same wei"e in substance repeated in 
 this Rule. 
 
 30th January, 1888. 
 
 (Signed) JOHN HAGARTY, C.J.O. 
 GEO. W. BURTON. J.A. 
 C. S. PATTERSON, J.A. 
 F. OSLER, J.A. 
 J. A. BOYD, C. 
 
 THOMAS GALT, C.J., C.P.D. 
 J. D. ARMOUR, C.J., Q.B.D. 
 
 (Signed) W. PROUDFOOT, J. 
 
 THOMAS FERGUSON, J. 
 JOHN E. ROSE, J. 
 THOMAS ROBERTSON, 
 W. G. FALCONBRIDGE, 
 W. P. R. STREET, J. 
 HUGH MacMAHON, J. 
 
 It is hereby ordered that the new Consolidated Rules shall not go into force 
 until the first day of April, next ; and it is further ordered that all matters of prac- 
 tice and procedure affected by the Acts referred to in the Rule of 31st December, 
 1887, shall be deemed to be in force until tlie first day of April aforesaid, as if the 
 same were in substance repeated in this Rule. 
 
 Dated at Osgoode Hall, 29th February, 1888. 
 
 (Signed) JOHN H. HAGARTY, C.J.O. 
 GEO. W. BURTON, J.A. 
 C. S. PATTERSON, J.A. 
 F. OSLER, J.A. 
 J. A. BOYD, C. 
 
 THOMAS GALT, C.J., C.P.D. 
 J. D. ARMOUR, C.J., Q.B.D. 
 J.A. 
 
 (Signed) W. PROUDFOOT, J. 
 
 THOMAS FERGUSON, J. 
 JOHN E. ROSE, J. 
 THOMAS ROBERTSON, 
 W. G. FALCONBRIDGE, 
 W. P. R. STREET, J. 
 HUGH MacMAHON, J. 
 
 72 
 
1138 
 
 RULES OV COUUT. 
 
 It is hereby ordered that the new Consolidated Rules shall not go into force 
 until the first day of September, next ; and it is further ordered that all matters of 
 practice and procedure affected by the Acts referred to in the Rule of ;^lst Docem- 
 ber, 1887, shall be deemed to be in force until the first day of Kepteniber aforesaid, 
 as if the same were in substance repeated in this Rule. 
 
 Dated at Osyoode Hall, 2i)th March, 1H8H. 
 
 (Signed) JOHN H. HAGARTY. C J.O. 
 GEO. "W. BURTON, J.A. 
 C. S. PATTERSON, J.A. 
 F. OSLER, J.A. 
 J. A. BOYD, C. 
 
 THOMAS GALT, C.J., C.P.D. 
 J. D. ARMOUR, C.J., Q.B.D. 
 
 (Signed) W. PROUDFOOT, J. 
 
 THOMAS FERGUSON, J. 
 JOHN E. ROSE, J. 
 THOMAS ROBERTSON, J. 
 W. G. FALCON BlUDGE, .1. 
 W. P. R. STREET, J. 
 HUGH MacMAHON, J. 
 
 The following Rule was subsequently passed on 9th June, 1888: 
 
 It is hereby [ordered that the Consolidated Rules 210,211 and 212 shall not 
 come into force on the first day of September next nor until tlie further onler of 
 this Court be passed fixing a day for the same to come into force. 
 
 And it is furtlier ordered that until sucii Rules do come into force all inatters 
 of practice and procedure affected thereby shall be deemed to be in force as if the 
 same were in substance repeated in this Rule. 
 
 imrjune, 1888. 
 
,11 not j^o into force 
 \ that all matters of 
 Rule of lilst Docem- 
 Septenibev afovesivid, 
 
 INDEX. 
 
 UDFOOT, .1. 
 
 S FlUUiUKON,.!. 
 
 i.llOSK.'I- 
 B llOBKUTSON,.!.- 
 
 ALCONBUIDGh, J. 
 
 , HTKKKT, J. 
 
 ilAcMAHON,.!. 
 
 e, 1888 : 
 
 211 and -il-J shi.U not 
 
 ,il the fuvthL'V onler ot 
 
 o'lnto force all n>ujter« 
 to be in force as if the 
 
 A 
 
 ABATEMENT. Hco lM.\MUMi:s-t)iii)i:u to CoN-riNrE Proceedings. 
 bankruptcy does not cause, oCiO. 
 death where it does not cause, SCO. 
 nnirriaf^e where it does not cause, iVJO. 
 revivor. See OitDKit to CoNrr.Nn: 1'iu)ci:kdi\os. 
 transmission of interest does not cause, 560. 
 
 ABORTIVE SALE. See S.\les i.y the Couut. . 
 
 ABSTRACT OF TITLE. See S.u,r.s nv thk Corr.r. 
 
 acceptance of, as sutlicient, what is, "iOll. 
 
 prechides fiU'ther objections, 210. 
 confirmation of, %s-hat is, '20ii. 
 
 precludes furtlier objections, 210. 
 costs of reference as to title, 218. 
 
 delivery of, to be made by vendor's solicitor, on demand, 207, 208. 
 ne^'leci to make, 20!). 
 
 disduu-f^e of purchaser, for, 209. 
 demand of, by purchaser, 208. 
 
 nef^lect to make, effect of, 208. 
 should be in writiufi, 208. 
 incumbrances, vendor not bound to negative existence of, 211. 
 liability of vendor for not disclosing, 211. 
 removal of, 204. 
 Master may determine questions as to suHiciency of, 208, 209. 
 " matters of conveyance," what are, 213. 
 nature of, 208. 
 
 notice to deliver objections to title, when to be served, 211. 
 objections to, when to be delivered, 207, 208. 
 liow made, 208. 
 
 disposed of, 208, 209. 
 should be removed, before objecting to title, 208.. 
 waiver of, 208. 
 to title, when to be served, 208. 
 how disposed of, 212. 
 report, not to be made on, 209. 
 to be marked " allowed," or " disallov/ed," 209. 
 what are, 212, 218. 
 pedigree, falsifying, liability of vendor for, 211. 
 
1140 
 
 INDEX. 
 
 ABSTRACT OF TITLE— Coniinued. 
 
 possession, inquiry should be made as to, 212. 
 
 not constructive notice of adverse title, 212. 
 purchaser's taking, effect of, 203. 
 proof of title, how made, 208, 20!», 210, 213. 
 
 where conditions of sale relieve vendor from production 
 of deeds, 211. 
 purchaser, must demand, 208. 
 recitals in deed, how far eviilence, 210. 
 reference as to title, 206, 208. 
 
 costs of, 213. 
 
 waiver of right to, 206, 207. 
 refusal to verify, proceedings on, 213. 
 registered memorials, how far evidence, 210. 
 
 regularity of proceedings, purchaser, how far bound to inquire into, 
 
 212. 
 requisitions on title, when to be delivered, 211, 212. 
 
 how disposed of, 212. 
 sufficiency of, how determined, 208, 209. 
 title deeds, registration of, by vendor, when necessary, 210. 
 
 conditions as to production of, should not be unnecessarily 
 
 stringent, 211. 
 copies of, when to be furnished, 210, 211. 
 liability of vendor to furnish, qualified by conditions, 211. 
 recitals in, how far evidence, 210. 
 vendor, solicitor of, to deliver, 207. 
 
 may be required to perfect, 209. 
 
 neglecting to perfect, purchaser may be authorized, 210. 
 verification of, 208, 209, 210. 
 
 ABSCONDING DEBTOR. See Bailablk Pkoceedinos. 
 attaching order, may be granted against, 845. 
 
 affidavit for, 846. 
 
 application for, how made, 847. 
 
 date of, 849. 
 
 duplicate of, may be issued, 849. 
 
 duration of, 849. 
 
 effect of, 848. 
 
 form of, 847. 
 
 motion to vacate, 852. 
 
 service of, 849. 
 claim of plaintiff, must be proved, 850. 
 creditors, claims rf. bow recovered, 849. 
 
 right ol, lu attack claim of plaintiff, 851. 
 defendant, may be let in to defend, 850. 
 
 without putting in bail, 851. 
 
INDEX. 
 
 1141 
 
 productir 
 
 inquire into, 
 212. 
 
 210. 
 3 unnecessarily 
 
 conditions, 211. 
 
 jrized, 210. 
 
 g in bail. 851. 
 
 ABSCONDING BEBTOll— Continued. 
 
 defence, may be allowed at any time, SoO. 
 
 intent of, on leaving Province, may be tried on affidavit, 852. 
 
 judgment against, validity of , liow impeaclied, H51. 
 
 Master in ('lianiberK, jurisdiction of, to sot usidu, 
 
 851. 
 motion against attaching order, 852. 
 order against, 84!). See Kupni — attaching order, 
 plaintiff must prove his claim against, 850. 
 
 right of other creditors to impeach judgment of, 831. 
 sale of goods attached, authorized, unless bail put in, 851. 
 service of attaching order, 819, 850. 
 
 writ of summons on, 84!), 850. 
 special bail, defence formerly not allowed, until put in by, 851, 
 how put in by, 851. 
 
 now only necessary to prevent sale, 851. 
 omission to put in, effect of, 850, 851. 
 property to be returned, on putting in, 851. 
 
 ACCEPTANCE OF SERVICE. 
 
 by solicitor, of writ, 288. 
 
 verification of on entering judgment, <)05, 
 other proceedings, 405. 
 
 need not be verified, 105. 
 
 ACCIDENT. 
 
 jurisdiction of High Court in cases of, 11-12. 
 meaning of, as ground of relief, 12. 
 
 .\CCOUNT. See Masteu— MoirroAdE Actions. 
 
 action for, motion for, on non-appearance, 635. 
 
 administration, order for, where granted, 035. 
 
 appointment to ascertain what admitted, and what contested, 182. 
 
 books of, as evidence, 178. 
 
 claim for, how indorsed on writ, 285. 
 
 complicated, reference of, to Official Referee, 98, 99. 
 
 indorsement of claim for, ()35. 
 
 interlocutory order for, when granted, 635. 
 
 effect of, 636. 
 jurisdiction of the H. C. J. in matters of, 11, 13, 14. 
 motion for order to take, 635, 
 
 affidavit in support of, 636. 
 notice of, 636. 
 order for, how obtained, 635, 636. 
 " prolonged " meaning of, in s. 102, — 9!). 
 settled. Master may inquire into, 177. 
 
wrw 
 
 1142 
 
 ACCOUNT— CoiK/hiuv/. 
 
 INDEX. 
 
 Bums ot $8 and under, allowed on oath, IHI. 
 
 must not aggretjate more tlian $100, IHl. 
 
 oath niuHt he positive, IHl. 
 aurcharf^c, particulars of, must be Herved, IHi}, 
 vouchers, when necessary, iHl. 
 wilful ne^iiect and default, 1(')4-H. 
 
 ACCOUNTANT OF SUPHEMK COURT OF JUDICATUKIO FOll 
 ONTARIO. See Monkys in Couht -Offickks ok Couiit — Paymknt 
 INTO (Joritr -Paymknt orr or Coriir. 
 
 accountB to be kept by, 211. 
 annual returns to be made by, "247. 
 appointment of, how to be made, lOH. 
 audit of accounts of, '2-15. 
 auditors of books of, how appointed, 245. 
 remuneration of. 24."). 
 report of, 245. 
 books to be kept by, 241-244. 
 
 open to inspection, 244. 
 certificate of, 244. 
 chequQs issued by, 242. 
 
 claim by, in mortgage action, how proved, 226. 
 corporation sole, is, UH. 
 declaration, annual, to be made by, 24(5. 
 
 form of, 10(5.5. 
 directions to bank to receive money for, how issued by, '241, •242. 
 duty of, U.S. 
 expenses of office, chai'ge on income, 110. 
 
 hovv to be paid, 245. 
 fees of, how payable, 12,'), 124. 
 interest, how to be credited by, 24;!. 
 
 compound, when to bo allowed by, 24;}. 
 date from which payable by, 248. 
 moneys vested in, 118. 
 mort{ia;,'es to be taken in name of, 244. 
 
 Official Guardian's duty as to,25U. 
 proof of claim on, 22(5. 
 oath to be taken by, 100. 
 ofiice of, vacant, provision in case of, 110. 
 Official Guardian's account, return of, to be made by, 117. 
 return of moneys, and securities in Court to be made by, 24l>. 
 salaries in office of, how paid, 245, 24(5. 
 securities vested in, 118, Hi). 
 
 annual return to be made of, 247. 
 to be taken in name of, 244. 
 
INDEX. 
 
 1143 
 
 irti. 
 
 niuK von 
 
 ;UT— PaVMK.NT 
 
 •2-11, •242. 
 
 117. 
 leby,'24i;. 
 
 jy 
 
 ACCOUNTANT OF SUPREME COURT, ETC.^C,wti,i,u:l. 
 
 stock may be purchased by, for investiiu'iit, 2');!. 
 
 suitors' accounts, how to be kept by, '242. 
 
 Suitors Fee Fund Account to be kept by, 1'20, '242. 
 
 purpose of, 120, 242. 
 Suspense Account, to be kept by, 242. 
 
 sums to be transferred to. 24:t. 
 
 ACTION. See Adatemknt — Accou.nt — Chosk in Action — (Jos is ~ 
 
 EXECrTION — JUDOMKNT — PARTIES— TllIAI,. 
 
 abatement of, oCiO. See Aiiaidmknt. 
 
 account for, reference of to Official Referee, 98, !)0. 
 
 addinf* parties to, on transmission of interests, .'i(j2, 503. 
 
 assif,'nment, pendin;,', effect of, fAVl. 
 
 bankruptcy of parties, effect of, 5(iO, .5()1. 
 
 cause of, wlien it survives, 500, .%l, oGS, .504. 
 
 commencement of, 2r)it, 
 
 as aj^aiust parties added in M. O. 1!)2. 
 conduct of, may be f^iveu to any party, 3.jl, 
 consolidation ,of, oSO. 
 
 when ordered, 580, 581. 
 
 continuiuf,', on death, etc., order for, when necessary, 501. 
 
 costs in. See Costs. 
 
 death of parties to, effect of, 5(50, 501. 
 
 defendant out of jurisdiction, against, 30ii, 305. 
 
 demurrer. See Dkmuuukii. 
 
 discontinuance of, 571, 573. 
 
 costs on, 571, 5V^). 
 effect of, 573. 
 dismissal of infant's, for want of next friend, 333, 334. 
 
 for default in making discovery, 4',il-4'.)3, 578. 
 
 plaintiff's refusal to attend for examination, 578. 
 want of prosecution, 575-578. 
 with costs, effect of, 100!>. 
 execution in,,/i./a., <:ooda, 704-700. See Executio.n. 
 lands, 707, 709. 
 detinue, 709, 710. 
 dower, for assignment of, 709. 
 Inih. f„c. ;)().«., 705, 708, 709. 
 for less than tlO not entertained by H. G. J., 10. 
 includes " petition," 2. 
 interpleader proceeding, is not an, 2. 
 issues arising in, separate trial of, 385. 
 joint and several claims, joinder of, 385. 
 judgment in, motion for, C37-040. See Judgment. 
 
1114 
 
 INDKX. 
 
 ACTION— Co/it/Hi(e(/. 
 
 judgment in, after reference to Official Keferee, 97, 1(8, 100. 
 
 (lefiiult of 'ipii'Hiranco, (■(Oo-()ir>. See Juimimkni. 
 leave to sif^p. wlioro writ not H]H'cially •'ndorMPcl, O'il-dH'.' 
 leave to defend, whore writ specially indorsed, (iiJO-CiiJL. 
 lunacy of parties to, effect of, (5(14. 
 mandamuH for, 8()0, HV>). 
 
 proceedin^jS: in, 8(12. 
 niarriftf^e of parties to, effect of, 5(50. 
 meaning of, in Act ami Ituh'x, 9 ). 
 notice. Bee Notice— Notick ion— Notice ok Motion— Notk k 
 
 OF TniAL. 
 Official Ueferoe, reference to, of (lueations in, 95-97. 
 parties to. See Pautieh. 
 
 added in M. O. when commenced against, 152. 
 penal, compounding, 574. 
 pleadings in, 388-440. See Demuuueu— Pi,eai)Incis — Statement ok 
 
 Claim— Statement of Defence. 
 recovery of land, for. hee E.iectment. 
 reference of, to Ofticial Referee for trial, 98-100. 
 
 qnestions arising in, to Ofticial Referee, 95-97. 
 remaiiet, may be tried at next sittings, 592. 
 restoring, after dismissal for default ui making (''Hcovcry, 492. 
 scientific questions arising in, reference, of '>H, 99. 
 several causes of action, separate tria's may be ordered of, 385. 
 survival of cause of, on death, 500, 5i)l. 
 transfer of, to another Divisijii, 578, 579. 
 
 proceedings on, 579. 
 transmission of interest of parties to, effect of, 5(10, 5(il 
 trial of, 582-(;04. See Tkial. 
 wrong person, brought in name of, 4G1, 
 
 ACTION TO RECOVER LAND. See E.jecvmknt. 
 
 ACTUARY. See Experts. 
 
 Court may obtain assistance of, 201. 
 
 ADDING PARTIES. See Master— Paiities. 
 
 ADDRESS. 
 
 for service, 278, 279. 
 
 indorsement of, on writ of summons, etc., 278, 279. 
 
 first proceeding, 279. 
 omission to indorse on writ, effect of, 278, 279. 
 partner's, when to be disclosed, 287. 
 plaintiff's, when to be indorsed on wi'it, 278, 279. 
 solicitor's, when to bo indorsed on writ, 278, 279. 
 
INDEX. 
 
 1145 
 
 ADMINISTRATION. See ADMiNiHritAToii— Pkuhonaf, Uki'uehkntativk. 
 
 iiccount8 in action for, liow to bo taken, 772, 77;{. 
 
 parties from whom reiiuirod, to bo ori>,'iiiivl particH, ;{4(i. 
 
 which mivy bo taken nndor ordinary jndnmont for, 771. 
 action for, conduct of, may he ^ivon to any party, ;t"il. 
 creditor when entitled to, M")!. 
 
 COHts of, .'Ifll. 
 
 personal roproaontative when entitled to, liol. 
 at^ainst defendant out of jurisdiction, .%H. 
 time for brint^inj,' by l'j;;iiteLH, or next of kin, 347, 348. 
 when necessary, 7(i(), 708 
 
 a Ivertiaement for croditors, distribution of estate after, effect of , 348, 
 
 what it is to contain, 773, 774. 
 when dispensed with, 774. 
 
 affidavit of personal representative as to creditors' claims, 775, 
 application for judj^ment, by personal representative, 7t)(). 
 
 residuary legatee, 7t)it. 
 against executor, de xoii tort, 7t)!t, 770. 
 
 assets, deficiency of, when groinid for, 340, 70"i, 7()G, 70'.). 
 attendance on proof of claims against estate, 373. 
 carriage of order for, 7();'j. 
 
 special directions as to, 705. 
 creditors, advertisement for, what to contain, 774. 
 
 when disjiensed with, 774. 
 bringing action for, must prove claim, 7(19. 
 
 be creditor of deceased, 70'2, 770. 
 claims of, aflidavit proving, when unnecessary, 774. 
 affidavit as to, 775. 
 
 time for making, 775. 
 adjudication on, 774-770. 
 corroboration of, when required, 701, 774. 
 examination of, 775. 
 how proved, 774. 
 
 payment of, out of Court, notice of, 777. 
 proving after time expired, 777. 
 purchase of, by plaintiff's solicitor, 774. 
 time for sending in, 770, 777. 
 who entitled to attend proof, 373. 
 costs, when allowed to, 774. 
 execution, priority of, 700. 
 judgment obtained by, effect of, 774. 
 may apply on motion for, 750, 701. 
 
 notice to attend to prove claim may be mailed, 770, 777. 
 of allowance of claim, 770. 
 
 form of 770. 
 
1146 
 
 INDEX. 
 
 ADMINISTRATION— Conf/Hi(e</. ' "'. 
 
 creditors, notice of payment of claim to be sent, 777. 
 
 overpaid, may be required to refund, 7()'>, 77(1. 
 to produce sscurities, 774, 775. 
 
 ne<,'lect, effect of, 77"). 
 staying actions by, after jud'^ment for, 7()2. 
 
 commissionin 'leu of taxed costs, !(07, 908. 
 
 compensation to personal representatives, allowance of, 174, 771. 
 
 See Personal REriiKSKXTATivr.. 
 
 conduct of proceedings, special directions may be given, 770. 
 consolidation of proceedings for, 770. 
 costs in action for, 007, 008. 
 
 discretion of Master, 770. 
 unnec23sary action for, 7(!:^, 760, 7(18, 760, 008, OOlt. 
 deficiency of assets, as a ground for applying for, 340, 7(io. 7<)r), 7(1'.). 
 
 estate, how to be administered on, 7<1(1. 
 devastavit, cannot be set up by person committing, 70:5. 
 
 Statute of Limitations as a bar to action for, 7(l;i. 
 devisee may obtain judgment for, on motion, 750, 703. 
 
 when to be notified of motion for, 704. 
 directions as to carriage of order for, 7(15. 
 
 distribution of estate after ,idvt. when an answer to nuaion for, 7(14. 
 estate insignificant, where, 348, 340. 
 evidence on motion for, 7(11. 
 execution creditor, priority of, 76(1. 
 executors. See ii/ra — personal representatives, 
 all to be parties to action for, 347, 350. 
 deceased, representative of, when to be served, .'!47. 
 ili'xi»i. tort, action against for, 34(5, 347, 700, 770. 
 may sue before probate, 350. 
 experts. Master cannot employ in action for, 77(1. 
 further directions, when dispensed with in action for, 770, 771. 
 heir, may apply for on motion, 750, 7(53 
 
 wlieu to ba notified of motion for, 7(54. 
 indemnity against covenant in lease, when action may h' brough'.. ti> 
 
 obtain, 7(50. 
 infant, not liable to account in action for, 348. 
 
 defendant, when dis.illovved costs in action for, 7ilO. 
 
 how served with notice of motion for, 7ll."i, 704. 
 Local Master cannot entertain application for, by, (17, 7(57. 
 injunction, how obtained in summary proceedings for, 771. 
 interest on debts, how to be computed, 77'2, 773, 
 
 legacies, how to be computed, 77'2, 773. 
 judgment for, on summary application, wlien granted, 7(14. 
 
 refused, 704, 7(55, 708. 
 
INDKX. 
 
 1147 
 
 mi'Lioii for, Tiit- 
 
 ADMINISTRATION —Codh'/jHff/. 
 
 judgment fo: , Chambers, when granted in, 523, 524, 704, 767. 
 effect of, 762, 770, 771, 
 form of, 700. See Forms. 
 Local Master, when he may grant, 707. 
 motion to vary, 853. 
 on whom to be served, 7()7, 772, 77H. 
 i^ersons served with, do not become parties, 77H. 
 
 riglit of, to attend proceedings, 773. 
 service of, 351. 
 
 dispensinf^ with, 353. 
 effect of, 352. 
 legatee, may apply on motion for, 75!), 703, 708. 
 letters of, when they relate back to death of intestate, 07, 700. 
 
 proof of, when necessary, on motion for, 701. 
 Local Master, jurisdiction of, to grant judgment for. 7()7. 
 
 cannot entertain application by infants, 707. 
 lunatic defendant, how served with notice for, 375. 
 
 guardian ml lit. for, when necessary, 375. 
 
 Master, powers of, in action for, 770, 771. 
 should not proceed c.r purtc, 771. 
 money realized in action for, tfi be paid into Court, 770. 
 
 distribution of, order for, 770-772. 
 
 mortgagee, claim of, liow proved, 77l>. 
 
 motion for, fourteen days' notice to be given of, 701, 703, 704. 
 Local Masters, jurisdiction to entertain, 700, 701. 
 Master in Chambers, jurisdiction to entertain, 143, 700. 
 wlio may make, 75',l, 700. 
 when it may be made, 7t)l, 703. 
 where to be made, 7f')0. 
 next of kin, may apply for judgment, ov. 'notion, 'i5il, 703, 708. 
 notice of motion for judgment for, 701, 703, 7()4. 
 
 form of, 703. 
 service of, 703, 71)4. 
 opposed application for, Master in Chambers cannot entertain, 113. 
 order for, wljen f,'rt'.nted, 704. 
 
 refused, 704. 7t)5, 70S. 
 to be entered as a judLjinent, 520, 051, 701, 770. 
 
 outstaiKlin>{ estate, account of, 772. 
 parties, to nn^tion for, 701. 
 
 addin>4 in Master's otlice, 773. 
 
 interested, to be notified of proceedings in Master's Office, 340. 
 payment of money out of Court, in action for, 143, 770-2. 
 personal estate, power of ISIaster as to, 770. . 
 
1148 
 
 INDEX. 
 
 ADMINISTRATION— C'on<i»u«/. 
 
 personal representatives, may apply for, 349, 350, 765, 766. 
 
 ex parte, 769. 
 accounting in Surrogate Court, effect of, 318. 
 all to be notified of motion for, 761, 7G7, 70'.). 
 compensation for services, allowance of, 
 
 771-2. 
 
 costs, liability for, 766. 
 
 distributing estate after advt., effect of, 348, 
 
 without advt., effect of,. 
 
 348. 
 
 necessary party to action for, 346, 347, 761,. 
 
 767, 76!). 
 only, entitled to attend on claims against 
 
 estate, 373. 
 probate, proof of, when necessary on motion for, 761. 
 
 action commenced before, effect of, 67, 350, 766. 
 real estate, account of. when ordered, 766, 767. 
 
 power of Master as to, 770. 
 who to be notified on motion. 766, 767. 
 real representatives, when to be added in action for, 347. 
 receiver, appointment of, in action for, 60, 771. 
 refusal of order for, when estate insignificant, 348, 349. 
 
 distributed after advt., 348. 
 report of Master, in action for, 770, 771. 
 form of, 980. 
 
 review of, on motion for distribution, 770, 772. 
 residuary legatee, not entitled to have property brought into Court, 
 
 7()!). 
 action unnecessarily brought by, 769. 
 service of judgment, 351. 
 
 effect of, 352. 
 dispensing with, 353. 
 Statute of Limitations, who may set it up, in action for, 762. 
 
 acknowledgment by executor (/c non tort 
 
 cannot stop, 762. 
 personal representatives, when not bound to 
 set up, 762. 
 trustees, all to be parties in action for, 347. 
 unnecessary action for, by residuary legatee, 769. 
 wilful neglect and default, inquiry as to, 760, 768. 
 
 ADMINISTRATOR. See Akministiution — Pkkson.vl REPiiKSKNT.\TtvK. 
 action by, before letters of administration, 67, 766. 
 11(1 litem, appointment of, 331. 
 
 judgment against, binds general administrator, 331. 
 
 .• ^ . ^ I J 
 
INDEX. 
 
 1149 
 
 3, when not bound to 
 
 ADMINISTRATOR— CoHtiJKU'rf. 
 
 linistrator, 'A'Al. 
 
 appointnient of, by H. C. J. when authorized, 331, 332. 
 jurisdiction of H. C. J. over, 11, 13. 
 
 ADMISSIONS. 
 
 coats of proof of documents, when refused, 909. 
 
 facts admitted in examination for discovery, 10!)7 
 documents, notice to admit, !>')',). 
 
 form of, o59. 
 admitted, not evidence unless put in at trial, 559. 
 motion for judgment, on, (541-3. See Motion for Jcdoment. 
 o' service, soHcitor's, when they need not be verified, 4(55. 
 
 of writ, must be verified, (505. 
 party not bound to rely on, in examination for discovery, 1097. 
 pleadings, in, motion for judgment on, ()41-(543. 
 must be taken as made, 644. 
 parties to make, 433. 
 proof of, 559. 
 
 ADVERTISEMENT. See Administration— Execution— Masteu—Quikt- 
 
 iN(t Titles— Sauks by the Court. 
 
 AFFIDAVITS. See Administiiation — Controvertku Municipal Elki- 
 TioNS — Costs — Discovery — Forms — Payment out ok 
 Court — Quieting Titles — Sales hy the Court. 
 
 account, in support of motion for order for, G3C. 
 
 alterations in, 557. 
 
 amendment of, 4G0. 
 
 before whom to be sworn, 554, 
 
 not to be sworn, 557. 
 commissioner taking, to state his office, 555. 
 copies, ofiicial, dispensed with, 463. 
 
 demand of, to be in writing, 4(54. 
 costs, admissibility of, on question of, 540. 
 cross-examination on, 543. 
 
 notwithstanding %vitlidrawal, 543. 
 when used at trial, 541, 5t'J. 
 disbursements of, by whom to be made, 919, 920. 
 
 form of, 920, 
 erasures in, 557. 
 
 erroneously entitled, 554. • 
 
 facts, to be stated in, 556. 
 ^.liijg, place of, 558. 
 
 for use at trial, time for, 540, 541. 
 time for, 558. 
 foreign, before whom to be sworn, 554. 
 form of, 554-556, 920. See Forms. 
 
1150 
 
 AFFIDAVITS-C'oHr/;i(U'<Z. 
 
 INDEX. 
 
 further directions, when may be read on, 540. 
 
 illiterate deponent, 557. 
 
 in chief, when to bo tiled, 558. 
 
 indorsement of name of party for whom filed, 555. 
 
 information ard belief, 55G. 
 
 interlineations in, 557. 
 
 irret;ular, when receivable, 554. 
 
 judf^nient under Utile I'M), for, (i28. 
 
 jurat, form of, 555. 
 
 when deponent illiterate, 557. 
 several deponents, 555. 
 
 justification, of, cross-examination on, 541}. 
 
 means of kno\vledi,'e, wlien to be disclosed in, 556. 
 
 motion, in support of, time for tiling, 558. 
 
 officer of corporation making, to show means of knowledge, .-i.'.'i. 
 
 taking, description of office to be stated in jurat, 555. 
 paragraphs, to be divided into, 4()'2. 
 parties to action making, how described, 554. 
 pleading and demurring, for, 423. 
 printed, or written, to be, 4<)2 
 regulations as to, 462. 
 
 scandal, in, 444, 445. 
 
 may be taken off files for, 556. 
 solicitor of party, not to take, 557. 
 
 called on to answer, 257-259. 
 stamps for filing, to be affixed, before using, 657, 558. 
 suatements in, how to be framed, 555. 
 style of cause in, 554. 
 sworn abroac who may take, 554. 
 transmission of, to Clerk of Records and Writs, 558. 
 trial, admissibility of, at, 5.H5-537, 540. 
 two or more deponents, jurat, 555. 
 voluntary, not to be taken by commissioner, 554. 
 withdrawal of, cannot prevent cross-examination, 543. 
 
 AGENT. See Soucitou. 
 
 interest, when liable to pay, 162. 
 
 entitled to recover, 1()2. 
 solicitor, suing out writ, to indorse principal's name, 278. 
 lien of, on paperc, 470. 
 
 fund, 472. 
 serving himself as agent for another principal, invalid, 4i)(!. 
 wilful neglect and default, liability for, 167. 
 
 
INDEX. 
 
 1151 
 
 G. 
 
 knowledge, o'^u. 
 n jurat, ^n';. 
 
 17, 558. 
 
 [a, 558. 
 
 bion, ^i 
 
 Ib name, '278. 
 
 principal, invalid. 4('.r.. 
 
 ALIMONY. See Bailahi-k Proceedings. 
 
 action for, next friend not necessary in, 334. 
 
 ;in'(!St of defendant in action for, 2;{, 82i). Sec Bailafii,!-; Frocekmngs. 
 
 discharge of defendant from, when granted, 23. 
 bail in action for, amount of, 844. 
 bond for, not assignable, 23. 
 co-^ts, liability of defendant for, !)0(), !)07. 
 
 when action compromised, 520. 
 (/(' (lie iti dievi, order for, 51W. 
 disbursements of plaintiff's solicitor, what included in, 519, 1085. 
 
 liability of defendant for, (100-7. 
 interim, application for, when it may be nuide, 518. 
 evidence required on, ijl8. 
 when granted, 23, ')18. 
 amount allowed for, 51i). 
 dale from which it is allowed, olH. 
 defendant may give notice of submission to pay, 624. 
 order tor, (124. 
 
 registration of, (520. 
 when set aside, 511). 
 solicitor has no lien on, for costs, oil), 
 staying payment, in default of discovery, 510. 
 judgment for, registration of, 520. 
 
 effect of, 23, 24. 
 jurisdiction of H. G. J. to grant, 23. 
 order for, registration of, 23, 24, 520. 
 
 effect of, 23, 24. 
 permanent, when granted, 23. 
 
 from what date granted, 519. 
 registration of judgment for, effect of, 23 24. 
 sale of land bound by judgment, may be ordered, 24. 
 undertaking to proceed when required in action for, 518. 
 
 AMENDMENT. See Writ of Summons. 
 
 adding parties by, 3")1, 354-302. 
 
 affecting person not a party, rescinded, 400. 
 
 application for, how to make, 453. 
 
 clerical error in judgment, 154. 
 
 costs of motion for, 453. 
 
 defence to counter-claim, when it may^set up by, 455. 
 
 statement of claim, when it may be set up by, 455. 
 demurrer, after, 424, 425. 
 
 order for, when granted on prtccipe, 424, 425, 
 discretion as to granting, 4(10. 
 leave for, when to be obtained on notice, 456. 
 
 of pleadings, application for, 453, 459, 400. 
 
1152 
 
 AMENDMENT— Con^iHHcrf- 
 
 INDEX. 
 
 leave to plead after, 452, 453. 
 may be made at any time by order, 459, 4()0. 
 of judgments, accidental sMpa, or omissions in, ()48. (154, (J55. 
 orders, accidental slips, or omissions in, G54, 655. 
 pleadings, by consent, 453. 
 
 adding parties, 3(52, 451. 
 
 fresh cause of action, 451. 
 disallowance of, 452. 
 may be ordered, 445-448, 45!), 400. 
 
 made in certain cases without order, 44(), 450-2. 
 date of, to be marked on, 454, 
 how made, 454, 450. 
 may be ordered at any time, 459, 400. 
 when allowed, 440-448, 450-452. 
 
 refused, 447. 
 without order, time for, 450-452. 
 statement of claim, 4(50. 
 
 on adding parties, 302, 451. 
 writ of summons, on adding parties, 355-301. 
 parties added by, 351, 354-301. 
 
 when not to be added, or struck out by, 451. 
 place of trial, not to be changed by, 451. 
 
 whether, if omitted, it may be supplied by? 451. 
 
 referee, power of, to order, 528, 529. 
 striking out parties by, 354, 355. 
 substituting parties by, 354-350, 301, 451. 
 time for making, without leave, 450-452. 
 under order, 452. 
 
 trial, when allowed at, 453. 
 
 how made, 402. 
 order for, 402. 
 
 APPEAL. See Couiit of Appeal— Divisional Codbt — Mastek — Quiet- 
 iNo Titles. 
 
 abandoned, motion to dismiss, not entertained ex parte, 517. 
 costs, as to, when entertained, 898, 899. 
 by creditor, from disallowance of claim by Master, 180. 
 party in contempt, 79. 
 person interested who is not a party, 79. 
 evidence on, 540, 547. 
 from Judge in Chambers, 78. 
 
 judgment at trial, 605, 608. 
 Master in Chambers, or Local Officer, 089, 690. 
 extending time for, 691. 
 
INDKX. 
 
 1158 
 
 AVPBAL— Continued. 
 
 I, 655. 
 
 der, 44t), 450--J 
 
 eaby?451. 
 
 — Ma.steh-Ql-ikt- 
 
 )arte, 517. 
 180. 
 
 )90. 
 
 from Master in Chambers, not a stay of proceedings, 099. 
 
 papers to be transmitted on, 690. 
 time for bringing, G90. 
 Master's report, 693-()9f). 
 
 costs of, (195, fi96. 
 
 leave to bring, not granted e.v parte, 517. 
 notice of, 695. 
 setting down, 095. 
 order for production of documents, 490. 
 
 changing conduct of cause, parties to be notified of, 351. 
 made on default of appoai'auce, 78. 
 refusing amendment, 79. 
 
 to commit for contempt, 79. 
 striking out pleading, 4")0. 
 taxation of costs to Judge, ()9(), 935. 
 
 Master in Chambers, 698. 
 Master in Ordinary, 698. 
 Sheriffs fees, 9.39. 
 
 further evidence, when admissible on, 51li, 517. 
 
 interpleader issue, whether any in, 79. 
 
 Judge appealed from, not to sit on, 8. 
 
 Master in Chambers has no jurisdiction to entertain, 112, 143. 
 
 exception, 698. 
 Quieting Titles Act, under, 807. See Quietinu Titlks, 
 
 to Court of Appeal, from H. C J., 33-36, 670-684. 
 
 abandonment of, by enforcing order ajipealed from, ()73. 
 affidavit of justification of sureties, 676, 677. 
 
 cross-examination on, 543. 
 filing of, 67(). 
 form of, 676. 
 bond, for costs of, 675. 
 
 staying execution. 670-672, 674, 677. 
 
 how e.\e('uted, 675. 
 sureties required, 675, 676. 
 
 action on, when stayed, 677. 
 allowance of, 676, 677. 
 death of sureties, 675. 
 disallowance of, motion for, 677. 
 exceptions to sureties, 675. 
 form of, 1062. 
 insolvency of sureties, 675. 
 surety, cross-examination of, 543. 
 when delivered up, 673, 674. 
 J.A. 73 
 
r ;l 
 
 M , ■! 
 
 1154 
 
 INDEX. 
 
 APPEXL— Continued. 
 
 to Court of Appeal, from H. C. l.—Conthnted. 
 book, to be printed, 078, 079. 
 
 defective, Registrar not to file, 081. 
 
 costs of, 081. 
 filing, 081. 
 
 how printed, 080,081. 
 
 number of copies of, to be delivered to Court, 07!). 
 time for delivering, 081, 082. 
 case to be stated on, 077. 
 
 printed, 078-081. 
 submitted to respondent, 077. 
 state name of .lud^^i; iippcalcd from, 078. 
 reasons of, and against, 078. 
 errors in, 081. 
 filing, 081. 
 certificate of result of, 083. 
 
 amendment of, 083. 
 enforcement of, 083. 
 settlement of, 083. 
 varying, 083. 
 -co-defendant, how notified of, 80. 
 costs of, 35. 
 
 security to be given for, 075. 
 when appeal book defective, 081. 
 discontinued, 075. 
 cross, unnecessary, 679. 
 
 proceedings in lieu of, 079. 
 decision of, how certified, 083. 
 default, at hearing of, ()82. 
 
 discontinuance of, proceedings on, 075, 083, 084. 
 entering, 082. 
 evidence, on, 35. 
 
 further, when admissible on, 540, 547. 
 execution, stay of, pending, 070-072. 
 
 security to be given, 070-072. 
 
 fact, on question of, 35. 
 further directions, from judgment on, 71-2. 
 injunction, when stayed pending, ()73. 
 interlocutory judgment, from, 77, 78, 82, 
 order, from, 77, 78, 82. 
 
 Joint Stock Company Act under, when disallowed, 071. 
 judgment on, enforcement of, 083. 
 leave to, 81. 
 
 Master in Chambers cannot grant, 143. 
 
INDEX. 
 
 1155 
 
 0S4. 
 
 J47. 
 .(•.72. 
 
 lUowed. 07-1. 
 t, 143. 
 
 APPEA^L—Coiitimu'd. 
 
 to Court of Appeal, from H. C. i.— Continued. . 
 leave to, when j^ranted, HI. 
 refused, HI. 
 money in Court, when paid out pending, 073, 074. 
 new points, when not entertained on, 078. 
 notice of, 79, HO, 070. 
 
 Court may direct to be given, 682. 
 
 form of, 070. 
 
 leave to give after time, 80, 81, 143. 
 
 service of, 80. 
 
 time for giving, 79, HO. 
 
 to Court of Appeal unnecensary, 81. 
 
 to whom to be given, 79, 80, 81. 
 
 where one of several defendunts appeals, 078. 
 
 postponement of hearing. Court may order, 682. 
 quashing, 35. 
 
 reasons of, and against, to be stated in case, 678. 
 what to contain, 080. 
 against, neglect to serve, effect of, 678. 
 
 leave to deliver, may be granted, 079. 
 receiver, appointment of. when stayed pending, 673. 
 respondent, may consent to re vernal, ()84. 
 security for costs, to bo given on, 79, 675. 
 time for giving, 79. 
 staying execution, 070-672, 074-677. 
 
 amount of, 675, 076. 
 how given, 675. 
 additional, when ordered, 675. 
 stay of execution pending, ()70-072. 
 
 proceedings pending, 072-074. 
 step in the cause, 077. 
 sureties, cross-examination of, 513, (i77. 
 time for bringing, 80, 82, 83. 
 
 giving security for costs of, 79. 
 
 to Court of Appeal, from County Courts. 
 
 appellants, who may be, 086. 
 books, how to be printed, 688. 
 
 date of first proceeding to be stated in, 689. 
 
 not complying with Iiule,t not to be received, 6H1). 
 
 omissions in, how supplied, 689. 
 
 when to be served, 689. 
 cases in which it lies, (585, 086. 
 
 does not lie, 680. 
 
1156 
 
 INDEX. 
 
 \ 
 
 % 
 
 Vi. 
 
 APPEAL— Cojitinut'd. 
 
 to Cour! of Appeal, from County Courts— C'()/tt//iu«(f. 
 evidence, when not to be printed, (188, ()89. 
 to be transmitted on, ('>85. 
 exhibits, how far to be printed, (189. 
 formal proceedinj^B, not to bo printed, 68i(. 
 grounds of, to be served, 08'.). 
 jurisdiction of Court as to, 31. 
 matter omitted from books, how suppUed, G8!) 
 non-compliance with nnlex, as to, effect of, 689. 
 original papers, to be certified and transmitted, (iHl. 
 pleadings, how to bo printed, 088. 
 security required on, 087. 
 setting down, 087-08!). 
 
 notice of, to be served, 081). 
 stay of proceedings, pending, 087. 
 sureties, aftidavit of justification by, to be filed, (i87. 
 time for. 080, 087. 
 
 water privileges, from Judge of County Court under Act respect- 
 ing, 34, GS7. 
 
 to Court of Appeal, from Division Courts, 31, 087. 
 
 Judge of County Court under Liquor License Act, 
 
 34, 087. 
 Provisional District Courts, 34, 087. 
 
 Stipendiary Magistrates, 34, 087. 
 
 to Privy Council, 0',)8-703. 
 
 appeal bond, form of, (iOO. 
 
 sureties in, how to justify, 009. 
 
 costs, appellant may recover, 700. 
 
 dismissal of, for delay in prosecution, 701, 703. 
 
 Judicial Committee may relax rules, 702. 
 
 reasons of Judges in Court below, to be certified, 099. 
 
 security to be given on, 098-699. 
 
 special case, may be heard in form of, 701, 
 
 transcripts of proceedings, how to be sent, 700. 
 
 printed abroad, 700-701. 
 
 in England, 701. 
 
 time for printing, 701. 
 
 to Supreme Court, from Court of Appeal. 
 
 proof of judgments to be submitted to Judges of Court of Appeal, 
 before case certified, 684. 
 
 APPEARANCE. 
 
 address of solicitor entering to be stated, 310. 
 
 defendant entering to be stated, 310. 
 
INDEX. 
 
 1157 
 
 I 
 
 5d, ()Hl. 
 
 eil, <".87. 
 
 I't under Act vcspect- 
 
 ler Liquor License Act, 
 
 34, t')87. 
 , 087. 
 
 , 703. 
 Ttitiwl, IV.I'.). 
 
 |l. 
 
 ,, 700. 
 „ 700-701. 
 ;lana, 701. 
 I'ng. 701. 
 
 Les of Court of Appeal, 
 
 m. 
 
 APPEARANCE— CoH/(/ii(e(/. 
 
 address of defendant, ueylect, to f,'ive, effect of, .SIO, 311. 
 default of, proceedings on, (iOri-dlG. 
 
 several defendants, ()07. 
 writ H))ecially itidorHed, Ii07. 
 defendant attendinj^ to enter, precedence of, 134. 
 more tlmn one, how entered for, 308. 
 sued in wrong name, by, 308. 
 delivery of, to clerk in street, effect of, 134. 
 dispute note, may be filed with, 315. 
 filed with, effect of, 31(). 
 dower, action for, how entered in, 'M'2, 313. 
 lancUord may enter, 313, 
 ejectment, party not named in writ nniy enter, 313. 
 
 aHidavit required, 313-311, 
 leave for wlien required, 314. 
 entry of. before service of writ, wlien allowed, "281. 
 
 by different solicitors for same defendant, 308. 
 how made. 308, 312, 313. 
 irregular, 134. 
 firm, cannot be ente ed in name of, 312. 
 form of, 311. 
 
 by partners, 311, .312. 
 in dower action, 312, 31.3. 
 
 ejectment, defence limited, 315. 
 by landlord, 313, 314. 
 when statement of claim not required, 311. 
 gratis, when allowed, 281. , 
 
 irregularity in, 134, 308. 
 
 setting aside for, 310, 311. 
 landlord, wlien he may enter, 313, 314. 
 form of, by, 314. 
 notice of, to be served, .314, 31.5. 
 limited defence, nniy be tiled with, 31."). 
 
 or in 4 days after, 315. 
 form of, 315. 
 notice of, 315. 
 misnomer, in case of, 308. 
 notice of, when necessary, 30',(, 314, 315. 
 
 by landlord, not named in writ, 314, 315. 
 limited, in ejectment, 315. 
 omission to give, effect of, 30'.». 
 partners, how to be entered for, 311, 312. 
 
 cannot be entered for, in firm name, 312. 
 individual, not entering, effect of, 311. 
 
1158 
 
 INDEX. 
 
 APPEARANCE— C7o»fi«i/c</. 
 
 Procedure Book, to be entered in, Hll. 
 procoedinf,' after, as if nonooiitorud, effect of, 800. 
 Bettinj? aHide, for irregularity, :il(), .'ill. 
 solicitor attendiuf^ to enter, entitled to precedence. \'M. 
 (Miterinjj without authority, et'foct of, UIO. 
 place of business of, to be Htated in, ,{10. 
 undertaking of, to enter, how unforced, HIO. 
 statement of claim, form of, diH[)ensing with, Sll. 
 third party, entry of by. Udd, i)(i7, 'MH. 
 
 effect of, 3(iH. 
 
 time for, iiliCi, :J07, 3(W, Ufl. 
 omitting to enter, effect ; i^ HUH. 
 to counter-claim, time for entering, Uii. 
 time for, when writ nerved in Ontario. ;J07, .'JO',). 
 
 out of Ontarif>. :{07, ;!()'.). 
 unauthorized, effect of, '2H7. 
 undertaking to enter, enforcement of, 310. 
 waives objection to joinder of causes of action, I.V.I, 
 when to be entered, 30H. 
 
 APPOINTMENT. See Mastku. 
 
 attendance on, 479. 
 
 power of, execution of, when not invalid for excluding object of, HS-lil* 
 
 to pass judgment, or order, CilC I'.IH. 
 
 atto dance .u., il49. 
 settle minuti 
 
 ..lance on, 47'.' i'.). 
 
 AUBITllATION. .Vwaul. 
 
 iiward, jurisdiction of H .1. as to, 11, 14. 
 High Court will not refci .'■. 'i'27. 
 reference of C. C. case to. by Judge of II. ( '. J., 1)4. 
 submission to, making rule of Court, 14. 
 
 AHBITRATOK, 
 
 injunction against, ")8. 
 
 ARREST. See Bailmilk Pno(,Kr.r>iN-os. 
 discharge from, when authorized, 734. 
 Master in Chambers, has no jurisdiction to ordi r. 14'2. 
 
 ASSESSORS. 
 
 Court may appoint, !)(>, '2()2 ; 
 
 but not Master in Chambers or Local Judge, i)i). 
 remuneration of, how fixed, 'JO. 
 
 ASSETS. 
 
 deficiency of, when ground for applying for mlministration, HWI. 
 
INDEX. 
 
 1169 
 
 i:it. 
 
 (1. 
 llti, 
 
 y.i. 
 
 ainf» object i>f.-W'*'> 
 
 '.14. 
 
 I. I-. 
 
 ■VH or Local .Tu<lge. ^•"■ 
 
 inini^'tnviioii, t 
 
 m. 
 
 A8STZES. Roo Tuiai,. 
 
 abaoiico of .)u(l^;e at opeiiinf? of, 92. 
 ftdjournmont of, by KhorifT, ilU. 
 commisHion to hold, issue of, 70. 
 
 not affected by Judicaturo Act, 1'2!(. 
 ri);bt of Judj^e to hold, vithout, 1'21». 
 
 Queen's Counsel to hold, without, I'i'.l. 
 retired Jud^e to hold, without, 12'.), 
 commissioners appointed to hold, powers of, 70. 
 county town, to be held at each, itO, 01. 
 holding of. l»!)-i)2. 
 Jud({e holding, mn ;• sit in Chambers, .S2. 
 
 at Toronto, jurisdiction of, in Chambers, 32. 
 in outer county, jurisdiction of, in Chambi rs, H2. 
 ■Judge of Court of Appeal may hold, 7. 
 time for holding, itl, 1)2. 
 
 ATTACHMENT OF DEBTS. 
 
 affidavit for, 712. 
 
 a8sit,'neo of judj^nicnt, may api)ly for, 712. 
 assit^nment of debt attached, et'fcct of, 74(i. 
 attachment book, 751. 
 
 effect of omitting entry therein, 75o. 
 form of, 10(;7. 
 costs of proceedings for, in discretion of Court, 905. 
 
 security for, 91'). 
 debts attachable, 742-71"). 
 
 not attacliable, 74."). 74<'). 
 ecpiitable execution, by, 747. See KyfiTAUi.K 1'2xkcution. 
 examination of judgment debtor for, 7iJ4-73l). 
 
 fees on, how payable, 735. 
 not allowed for costs only, 736. 
 employees of debtor for, 737. 
 oHicors of corponition for, 73(i. 
 transfei'ees of debtor for, 737, 738. 
 See ExA.MiNAi'ioN of Juixuiiint Di;irmu8. 
 execution against garnishee, when ordered, 7r)0-7">2. 
 
 it may issue from C. C, 752. 
 
 1). C, 752-.^. 
 garnishee, death of, 746. 
 
 disputing liability, 751. 
 
 claim within C. C. jurisdiction, 752. 
 D. C, jurisdiction, 752, 
 753. 
 issue may be ordered, 751. 
 e.xccution against, 750-752. 
 
1160 
 
 INDEX, 
 
 ATTACHMENT OF DEBTH— Continue,!. 
 
 garnishee, execution against, fron- C. C, 752. 
 
 D. C, 752. 
 issue to try liability of, 751. 
 notice of right of third party, effect of, 752, 754. 
 order to appear, 741. 
 
 before C. C, 752. 
 D. C . 752. 
 paying debt, before order to pay, effect of, 74'.(. 
 
 under order, effect of, 754. 
 set off by, when allowed, 74(1, 747, 749, 751. 
 when to appear Ijefore C. C, 752. 
 D. C, 753. 
 
 issue, to try liability of garnishee, may be ordered, 751. 
 
 refused, 751. 
 legal or equitable debts, may be attached, 742. 
 order for, 741. 
 
 effect of, 74!)-750. 
 
 service of, necessary to bind debts, 749. 
 payment before, effect of, 749. 
 
 set' .ig aside, after delay, 747. 
 
 several, 750. 
 
 to pay over, 754. 
 
 effect of, 751. 
 security for costs, may be ordered in proceedings for, 945. 
 setting aside, after delay, 747. 
 solicitor's lien, effect of, as against, 747. 
 third person, when lie may be ordered to appear, 758, 754. 
 
 ATTACHMENT OF GOODS. Hee Ahhcondino Dkiitoi!. 
 
 ATTACHMENT OF P,:RS0N. See BAii.viii.b; Pii(Ri;i;i.iN(is. 
 
 certificate of Master of default, 514. 
 
 contempt, in refusing to make discovery, for, 490-492. 
 
 produce in M. O., for, 514, 515. 
 discharge from custody, when granted, 514-515, 71<>. 
 motion for, for contempt, iiotice of, to be served. 491 
 
 how to be made, 491, 492. 
 Sheriff, against. See Haii.aiii.k I'lUKKKDiNds -Shkhikf. 
 solicitor, not entering appearance, pursuant to undertaking liable to, 
 
 :il(i. 
 wr.c of, when it may issue, 710, 711, 71H, 71<>. 
 
 arrest under, ai)plication to be discharged from, 71(i. 
 
 terms imposed, Till, 
 execution of, 715. 
 issue of, 715. 
 
INDEX. 
 
 1161 
 
 52. 754. 
 
 .f, Ti'.t. 
 7.-.I. 
 
 I, 751. 
 k1, 7.')!. 
 
 4".t. 
 
 sfor.'.tl''- 
 7.-^8, 754. 
 
 •■.liTOR. 
 
 '.)0-l'.f2. 
 oil, 515. 
 
 7K'). 
 (I. -iitl 
 
 ■J'.fJ. 
 
 SllKHlFK. 
 
 umlertakiim Ua^l^' to, 
 :U0. 
 
 :rL'afrom,71H- 
 
 terms imposeil.T II'. 
 
 ATTACHMENT OF VERSO'S— Continued. 
 
 writ of, not to issue without Judge's order, 714. 
 notice of motion for, 714. 
 
 service of, 714. 
 proof of '^ei ■, . of order to be obeyed, 715. 
 
 ATTORNEY-GENKRA.L. See PAUTiKs-PKTrnoN of Right. 
 
 audience, rifjlit to, when validity of statute in question, (iH. 
 
 fiat of, when necussary to quo irorraiito inforniiitioii, HQ<). 
 
 re<iuired to writ to repeiil patent, etc., H'.t'.t. 
 
 necessary party to action, when, is, 
 
 notice to be tiiven to. wlien validity of statute in <iuestion, 8H, (W. 
 
 form of, ()H. 
 reply, rij^ht of. ;V.IS. .V,»"i. 
 
 AUCTIONEER See Masikk 
 
 \WARD 
 
 appeal from iss, lH!t. 
 
 costs on. taxation of. '.117. 
 
 enforcing, 14. 
 
 motion against in C. C. case referred by .Iiulge of H. C. .1.. !t4. 
 
 rule of Court, need not be made, 14. 
 
 setting aside. 14. 
 
 grounds for, 14. 
 specific performance of, 14. 
 
 time for movinii au'i'iiis' It. 
 
 B 
 
 BAIL. See B.mi.aiu.k rnocKKin.siis. 
 
 in criminal case, forfeiture of, not relieved 
 
 •-'1. 
 
 BAILABLE LM{()('EE1)INGS. See Aiiscom.i.v; l)i:iirou. 
 absconding debtor. See Aiisconiuno Dkiitoi!. 
 affidavit of justification of special bail. forn. of, 842. 
 
 service of, H41. 
 alimony, defendant sued for, when liable to arrest, H2!t. 
 arrest, order for, when granted, s2H, H'i'.l. 
 form of, .s;^(t. 
 privilege from. S'irt. S'i'.i. 
 attachment against sheriff for not bringing in body. HH5. 
 
 not set aside except <in afiidavit of merits, 
 
 .S35, 83!i. 
 bail "above," what is. KM. 
 
 bond, sheriff to assi-^n in County Court actions, 834. 
 to siteriff, ordered to stand as security, HM, 
 action on. wlien stayed, 835. 
 

 1162 
 
 INDEX. 
 
 BAILABLE PROCEEDINGS -Con<i«ucr/. 
 
 bail bond to Sheriff, condition of, 834. 
 judgment on, 834. 
 special, affidavit of justification of, service of, effect of, 841. 
 
 form of, 842. 
 alimony action, in, amount of, 844. 
 allowance of, how obtained, 841, 842. 
 amount in which they must justify, 842. 
 bail to sheriff becoming, may be excepted to, X4H. 
 bailiff, when he cannot be, 841. 
 changing without leave, not allowed, 840. 
 exception to, notice of, 841, 842. 
 
 time for, 841, 842. 
 indemnified, when he cannot justify, 840. 
 justification of, 837, H3',)-844. 
 
 affidavit of, form of, 841, HV2. 
 
 liability of, 843, 844. 
 
 notice of, abortive, costs of, 844. 
 
 notice of more than two, when irregular, H4(). 
 
 nullity, when, 841. 
 
 number of, 830, 84(1. 
 
 piece, filing, 837. 
 
 put in, in country, how justified in Court, sU. 
 
 recognizance of, condition of, 83(), 837. 
 
 solicitor of parties not to take. S40. 
 rejected, may render principal, 843. 
 
 render of principal by, afteraction on recogni/. tnce. H43. 
 though rejected, 841. 
 
 sheriff, when he cannot be, 841. 
 sheriff's officer, when he cannot be, 841. 
 solicitor, when he cannot be, 841. 
 
 of parties, not to take recognizanci' of. sin. 
 staying proceedings against, 843. 
 
 pending appeal, HH. 
 
 time for putting in, h;!4, H3ii. 
 when not to be changed, 840. 
 " to action "' what is, 834. 
 sheriff to take, in County (Jourt actions, H34. 
 to sheriff, how given, 834. 
 
 becoming special bail, exceptions to, 843. 
 defendant to be discharged on giving, 834. 
 forfeiture of, 834. 
 proceedings on, wiien stayed, 83;'). 
 bring in body, order to, when it may issue, 83/5. 
 
 action on bail bond stayed, pending. M'<. 
 
INDEX. 
 
 BAILABLE PROCEEDINGS --ContmHcd. 
 
 1163 
 
 (■«. re., writ of lot to issue, 828. 
 
 cepi corpm, return of, effect of, 835. 
 
 changing bail, 840. 
 
 costs of abortive noticca of bail, 844. 
 
 County Court actions, duty of sheriff to take ba'l in, HH4. 
 
 charging defendant in execution in, H40. 
 County Court Judge, jurisdiction of, to order arrest, 8'2!). 
 custody, discharge from, application for, 831, 832. 
 defendant when not to be carried to gaol within 24 hours of arrest. rt34. 
 discharge of defendant from custody, application for, 831 -'i. 
 
 for misnomer, 833. 
 
 exception to bail, time for taking, 841,842. 
 
 notice of, when to be served, 842. 
 execution, charging defendant in, 833. 
 
 time for, 833. 
 exoneretur, when ordered to be entered, 838. 
 gaol, committal of defendant arrested to, 834. 
 justification of, special bail, 837, 839-844. 
 Local Masters, have no jurisdiction in, 82!). 
 Master in Chambers, has no jurisdiction in. H2'.(. 
 misnomer of defendant, in, effect of, 833. 
 ne exeat, writ of, 82H. 
 notice of special bail, 840. 
 
 more than two, irregular, H40. 
 
 order for arrest, form of, 830. 
 
 concurrent, how issued, 830. 
 copies of, to be served, 830. 
 
 delivery of, to sheriff, 830. w;!l. 
 duplicate, how issued, 830. 
 duration of, H30. 
 execution of, 831. 
 renewal of, H30. 
 to bring in body wlien it issues, H35. 
 
 proceedings against bail stayed, pendiiig. n,'i-">. 
 prisoner, disi'hargo of, on putting in special bail, 837. 
 charging in execution, time for, 833. 
 proceedings against, 832, 833. 
 recognizance of special bail. 830, H37. 
 
 in County Court actions, 840. 
 render of principal by bail, 838. 
 
 though rejected, Htl. 
 Sheriff, attachment of, how obtained, 835. 
 
 application to set aside, 835, m:Ii;. 
 bail to. See snpni bail to Sheriff. 
 
1164 
 
 INDEX. 
 
 BAILA.BLE PROCEEDINGS— Cowf/Hi/f^Z. 
 
 Sheriff, rule to brin^;; in body, when it may issue against, H3o. 
 special bail, when it may be put in, H.Sd. 
 
 allowance of, 837. 
 
 condition of, recognizance of, 83(), 837. 
 
 how put in, H3!(. 
 
 justification of, 837, 83!), 841. 
 notice of, 842. 
 time for, 843. 
 
 xuper^edeiin granted on perfecting, 8.S7. 
 
 See mipra bail, special, 
 statement of claim, wlicu to be (IcIivcrL'd, .s;{'2, 83;t. 
 supersedenn, when granted, 837. 
 surrender of principal by bail, 83S, 843. 
 
 not to affect ri'iiiic, H3'.l. 
 transfer to his own county, of dtifonflaiit arrested out of it, 8;j'J. 
 
 BARKISTEUS. 
 
 roll of, custody of, 257. 
 
 BIDDING. See Salks isy tmi-: Coritr. 
 
 BOND. See Appkaf, — BAir.viUiK I'lfcioMiixiiH — Costs — Rki'lkvin. 
 action on, assignment of breaches, 010. 
 
 BRITISH SUB.JECT. 
 
 writ of summons for sorvici! on, witiiin jurisdiction, 2(>',(. 
 
 witliout jurisdiction, '210. 
 
 c 
 
 €ANADA COMPANY. 
 
 covenants, not exempted from giving, 211. 
 deeds of, how executed, 211. 
 
 " CAUSE.- 
 
 meaning of, in .\ct and l{ith:i, 2. 
 
 CAUSE LIST, 
 assizes at, o'.H.. 
 
 Clerk of Records and Writs to prepare, 13!). 
 Divisional Court, peremptory, 2(>7, 208. 
 
 CAUSES OF ACTION. 
 
 joinder of, in actions by, or against, administrator, 384. 
 
 assignee in insolvency, 384. 
 executor, 384. 
 husband and wife, 384. 
 for recovery of land, 381, 382. 
 foreclosure, 382, 383. 
 
INDEX. 
 
 1165 
 
 solvency, 314. 
 wife, 3^4. 
 
 CAUSES OF ACTION— f««</«i«'(/. 
 
 joinder of, in actions for redemption, 382, 383. 
 improper, is an irregularity, 459. 
 
 waiver of objection to, 4o((. 
 several, may, in some cases, be joined in same action, H70, 380. 
 
 CAYUGA. 
 
 payment into Court with defence, at, 248. 
 
 CERTIFICATE. See Accountant— MASTKit-QriicriNd Titles— Taxino 
 Officer. 
 
 Bank, of, of nonpayment in nioi^i^aj^o action, o4(t. 
 
 lower scale, for brinj^in^ action under, !l2(i. 
 
 CEKTIORARI. 
 
 order of, effect of, 87;). 
 
 /»///.' an to, in criiiiiiml ('iis(>s, fl."):i. 
 
 writ of, abolished, 875. 
 
 CESTUI QUE TRUST. See Pahtiks— TnnsTFKs— Thvsts. 
 
 CHAMBERS. — See Mastku in CnAMniiHs — Motion. 
 accounts may be taken in, r>2(), .")27. 
 adjournment of prooeedin<jH to. or from, Court, '>'21. 
 administration judgment, applic:ition for, in, ,')2;f, i?24, 704, 707. 
 appeals, to Judge in, 'i'2'i, ()8i), (iOO. 
 
 extending time for, (iOl. 
 evidence on, (1!(2. 
 not a stay, (i'.tO. 
 setting down, (i'.tO, (iill. 
 time for, (UtO. 
 waiver of, ()!)1, ()'.t2. 
 from Judge in, to Divisional C!ourt, <)02. 
 applications which may be made in, iV23-o2;j. 
 
 in, to whom to be made, 524, 525. 
 assizes, may be held at, 32. 
 attendance on motion in, 471). 
 business, transacted in, o2!}-525. 
 
 by Judges, 31, 
 commit, motion to, to be made before Judge, 525. 
 County Court Judge, jurisdiction of, in, 148. 
 
 creditors' claims in administration suit, who entitled to attend on, 
 
 373. 
 dower, application to enable owner to convey free from, 524. 
 fraudulent conveyances, when set aside in, 523. 
 guardianship of infants, application for, in, 523, 525. 
 habeas corpus, writ of, may be granted in, 524, 
 Judges to sit in, 31. 
 
 powers of, in, 527. 
 
^mm 
 
 I- 
 
 1166 
 
 CHAMBEHS— Continued. 
 
 INDEX. 
 
 judgment, after appearance to specially indorsed writ, may be granted 
 in, 523. 
 for admiiiistration, when granted in, 524, 7C4, 765, 767. 
 in mortgage actions, wlien granted in, 523. 
 partition action, when granted in, 524, 777. 
 Local Judge, jurisdiction of, in, 148. 
 
 ]*^a8ters, jurisdiction of, in, 240, 241. 
 lunacy, declaration of, may be granted in, 524. 
 
 Master in Chambers, jurisdiction of, in. See Mastkh in Chamhkuh. 
 l\Iaster in Ordinary, jurisdiction of, in, 191. 
 motions in, 523-525. 
 order in, form 'of, 525. 
 
 name of Judge, or officer making, to be stated in, 525 
 consent, 525. 
 
 cannot be withdrawn, 525, 52(5. 
 date of, to be correctly stated in, 525 
 receivers, appointment of, wlien made in, 525. 
 representative of estate, when appointed in, 524. 
 sale of infants' estates, application for, in, 523, .525. 
 time for waiting on motion in, 471*. 
 
 CHANCERY, COURT OF. 
 
 amalgamation of, with other Courts, 4. 
 
 CHANCERY DIVISION. See Hroii Couut oi- Justick. 
 
 CHANGE OF SOLICITOR. 
 
 appointment of new solicitor on death of solicitor on the record, 
 
 how compelled, 468. 
 notice of, to be served, J()7. 
 separate solicitor, to one of several plaintiffs, 468. 
 solicitor, by party previously acting in person, 468. 
 added on transmission of interest, 
 
 469. 
 
 notice of, to be served, 369. 
 order for, when necessary, 467, 468. 
 
 material facts, must be disclosed, on application for, 468. 
 may be obtained on pr<e.fii)e, 467. 
 
 but not by one of several clients, where 
 retainer joint, 4(58. 
 must be obtained, when client discharges solicitor, 467. 
 and where solicitor discharges himself, 
 
 467. 
 of no effect, till served, 466, 467. 
 
 payment of costs, not made a condition precedent in, 468. 
 
 prinia facie a discharge of solicitor by client, 468. 
 
INDEX. 
 
 1167 
 
 :iay be granted 
 54, 7«5,767. 
 
 77. 
 
 II IN Chambkiw. 
 ied in, 525. 
 
 or on the reconl, 
 
 4()8. 
 a, 4<>7. 
 
 pliiintiffH, 4tiH. 
 g in person, 4r.ft. 
 mission of interest, 
 469. 
 to be served, 3r)9. 
 
 ipplication for, '1(W. 
 
 veral clients, whoro 
 
 18. 
 
 ges solicitor, 407. 
 discharges bimsoU, 
 407. 
 
 tn 
 
 precedent in, 468. 
 client, 408. 
 
 CHANGE OF SOLICITOR- (■««//«»(■./. 
 
 ordor for, not a discharge by client, wlien solicitor has refused to ait, 
 
 4(;rt. 
 or, become bankrupt, 408. 
 
 been arrested, and detained in 
 
 custody, 408. 
 
 solicitor's firnj dissolved, 408. 
 
 proceedings taken before, irregular, 408. 
 
 setting aside, for suppression of material facts, 408. 
 
 unnecessary, merely to obtain payment out of Court. 472 
 
 or when solicitor dies, 407. 
 
 on change of interest, 40!l. 
 
 service of solicitor on record, good, till order to cliange served, 400-7. 
 
 * subpoena, to apjioint new .solicitor, when necessary, 40.S. 
 
 CHATTEL MORTGAGE. 
 
 time for filing, cannot be extended tinder Itiilcs. 477. 
 
 CHEQUE. See AccorNTANT. 
 
 CHIEF JUSTICE OF ONTARIO, 
 absence of, who to preside, i(. 
 precedence of, 0. 
 
 CHOSE IN ACTION. 
 
 action by assignee to recover, .50, .'51. 
 
 defence to, .jl. 
 how brought, 345, IWO. 
 assignee of, action bj', how brouglit, .'54"), 'Siyi). 
 defences to, 51, 3.50. 
 English law respecting rights of, 4\). 
 Ontario law respecting rights of, 50, .51. 
 when he may sue in his own name, 4i(. 
 assignment of, to assignor and others, 50. 
 bonds of corporation, assignment of, 51. 
 debentures of corporation, assignment of, 51. 
 debtor may interplead, when rival claims to, 48. 
 debts payable at a future time may be assigned, .50, 
 defence to action by assignee, 51. 
 
 C'L.\IM. See Cheditohs. 
 
 indorsement of, on writ, '280-'280. 
 particulars of, when ordered, 284. 
 special indorsement of, 281-285. 
 statement of. See Sr.vrEMENT of Claim. 
 
 i-'LASS. See Mastkh. 
 
 action on behalf of, writ of summons in, 271. 
 
 indorsement of plaintiff's address, 278. 
 
 I- 
 
1168 
 
 ChAHB— Continued. 
 
 INDEX. 
 
 plaintiff representing, cannot be compelled to disclose names, etc., of 
 
 members of the class, Hiii. 
 representative of, in actions, where numerous, 340. 
 
 for construction of will, 341. 
 unascertained, representation of, wliere authorized, 341. 
 
 may be dispensed with. 342. 
 
 CLERK IN CIIAMBKR.S. 
 
 fees to, how payable, 123, 124, 
 orders to be sij^ned by, fVitJ. 
 
 CLERK OF ASSIZE. 
 
 certificate of, form of. flOO. 
 
 judf^ment nuiy be entered on, flOO. 
 duties of, at trial, .')!»'.», COO. 
 entry of findiiij^'s at trial by, (lllO. 
 exhibits, how to mark, ")•)(•. 
 
 deposit of, with, ')\)U. 
 inilorsement of findins^s on record, by, tlOO. 
 record, delivery by, to party entitled, (100, (iOl. 
 
 CLERK OF THE PROCESS. See Ofki.kks ok Couut. 
 
 appointment of, lOS. 
 duties of, 110, 111. 
 fees of, how payable, 123, 124. 
 oath to be taken by, lO'J. 
 office, attendance at, 135. 
 
 to be kept at Os^oode Hall, 110. 
 returns to be made by. 111. 
 security to be given by, 110 
 
 neglect to give, effect of, 110. 
 writs of summons, to be issued by, 271. 
 
 copies of, to be sent to Registrars, 13u. 
 
 <luty, as to, 272. 
 
 how issued by, 134. 
 
 return of 13,5. 
 
 sealing, 134. 
 
 CLERK OF RECORDS AND WRITS. 
 Qdietino Titles. 
 
 duties of, 138, 139, 140. 
 
 fees of, how payable, 123, 124. 
 
 how appointed, 108. 
 
 See OFiicERb OF Couiix — 
 
INDEX. 
 
 1109 
 
 names, etc., of 
 
 )Ft'ICEUS OF CoUIlT- 
 
 ( 'oaSO VI T A CTIONKM. 
 
 iittestfttion of, 023. 
 
 (Joi^novit Rook, entry of. in, when neeesxiiry, 622. 
 
 (iefeasimce, to be writtun on Haine paper. (124. 
 
 omiHsion to write, 024. 
 defendants may j^ive. in cjoctincnt. (i2(), (;21. 
 
 for whole, or part. u( land, irM. 
 one of several, may j,'ive, ('(21. 
 execution of, (122, (')2;{. 
 e.xplanation of, to be ijiven by solicitor attestin;,'. 022. (i23. 
 
 omission to Rive, 023. 
 linal .judjjnient on, 021. 
 
 leavt! to cuter, when necessary, (i21. (i2J. 
 motion for, how made, (123. (121. 
 may be yiven thouj^h no [iroeess issued, 023. 
 registration of, when necessary, 022. 
 
 COMMISSION. See Costs. 
 
 asDizes, holdinj^ without, 129. 
 See Assizes. 
 
 COMMISSION TO TAKH EVIDENCE. 
 
 aged witness within jurisdiction, maybe e.xaniiiicd under, ri48. 
 commiasioners, how named, •'jofl. 
 
 to sij^ii di'positions, .j.'iS. 
 costs of, when disallowed, !(20, 021. 
 
 joint, how to h^^ borne. ")53. 
 cross-interroj^atories, when to bo delivered, ;"J.11. 
 depositions taken under, how to be signed, .5.">;i. 
 discretion of Court, as to granting', 548. 
 execution of, when it may be ex piirtr, .").51, 5.")2. 
 notice of, when to be served, 5;)2. 
 exhibits, copies of, wluni to be iiiine.xed, .5.')2. 
 ex parti', order for, should not be granted, 550. 
 expert evidence, should not be taken under, 54it. 
 evidence taken under, when admissible at trial, 553. 
 foreign, when it may issue on Master's certilicate, 550. 
 infirm witness may be examined under, 548. 
 interpreter may be employed, 552. 
 
 must be sworn, 552, 553. 
 interrogatories, when to be delivered, 551. 
 irregularity in execution of, 549. 
 joint, costs of, iiow borne, 553. 
 Master, when he may issue certificate for, ")•■)( i. 
 mode of examination under, 551. 
 motion for, when to be made, 549. 
 
 J.A. 74 
 
1170 
 
 INDRX. 
 
 COMMISSION TO TAKE EVIDKNCE— Co;;//h»,,/. 
 
 notice of exocutioii of, how to bo served, /i.l'i. 
 
 to bo f^ivt'ii to oppoHite party, ">")() 
 motion for, form of, o.'JO. 
 oatli of witiu'SH, .'iS'i. 
 
 intorprctor, "(52, /joS. 
 objections to witness offorinj^, wlieti to bo tai<oi), "il'.t 
 opening, .'joO. 
 order for, form of, 540, 551. 
 
 implied provirtionB in, 55H. 
 parties joininj^ in, 55;!. 
 party residing abroad, may be cxaniincd un<ier, 517. 54it. 
 
 refuainj^ to attend under, effect of, 54H, 
 return of, bow made, 55:i, 
 
 witness about to leave juriHdiction, may be e.\amiueil under, 5|h, 
 foreifin, may be examined under, 5 tH. 
 how to be examined under, 55'2. 
 whiai firantod, 518, 54!). 
 
 COMMITTEE OF LUNATIC. 
 
 accounts, passinj,'. Master may appoint time for, •J'ili, 2'JI. 
 appointment of, liow made, 2'2(). 
 
 balances, payinj^ into Court, Master may ajjpoint time for. "J'JI. 
 bond of, to be taken in mime of A(!countant, '214. 
 compensation, when disallowed, for not passing accounts, '2'21. 
 
 paying balances into Court 
 
 221 
 COMMON PLEAS, COURT OF. 
 
 amalgamation of, with other (Courts, 4. 
 
 COMMON rLE.\S DIVISION. See Hkiu Couut of Jrsiici:. 
 
 COMMON QUESTION. 
 
 between plaintitf and defendant and third party, how determined. 
 808, atll), 871, H72. 
 
 COMPENSATION. See PKUso\.\r, Ukimu;si;ni\tim; dlKcKivKH— Sai.ks 
 
 )tY TUK CoUltT. 
 
 to personal representatives for services, 174. 175, 771, 772, 
 
 how apjiortioned, 175. 
 trustees for services, 174, 175. 
 
 COMPROMISE. 
 
 counsel, power of, to make, ()5(!. 
 infant, cannot be compelled to assent to, H'M. 
 of action, power of Court to enforce, 4(). 
 staying proceedings, to enforce, 4H, 4(). 
 
INDEX. 
 
 1171 
 
 m 
 
 550 
 
 17, .'.Ut. 
 
 ui';l mitU-r, •")»>*. 
 
 •2'2(l, -i'Jl- 
 t tiiiic for. 'J'il- 
 
 accounts, "i'21 
 
 baliuiccH iul" <''^"'"' 
 •221 
 
 3K .IrSl'lCK. 
 
 irty, how determined. 
 
 [vK - lli'.cKivKU— Sau-.s 
 
 ,-,.771,77-2, 
 ^ijKivtiimiHl, 17-"). 
 
 CONDITIONAL ORDER, 
 abandonment of, tioO, dill. 
 
 ( :ONDITION8 OF 8ALK. See Salkh nv TirK rornr, 
 CONFESKION OF DKFKNCi:. 
 
 costs, jud;,'mcut for, when it nmy he entered after. (.■|(',, l.">7. 
 
 form of, 4.'')7. 
 
 pliiintilT nnvy deliver, 4.'j(), 457. 
 
 CONSENT, 
 
 judgment, not iipj)ealahle without h-ave, 7'!. 7 t, 
 
 effect of, .'3'2">, '>-2n. 
 order, '>'2'i, .')'2(). 
 
 not ai)pcahible witliont l(!ave, 7.'), 74. 
 trial before referee, may be ordered, by, ilH, !l«t. 
 withdrawal of, wlien not allowed, ')'2'>, iV2(l, O").'). 
 
 CONSOLIDATION OF ACTIONS, 
 effect of, r)H0-.'iH2. 
 payment into Court in, 570. 
 service of writ after, Hfll. 
 when ordered, 580. 
 
 CONSOLIDATION OF M0RT«A(;KS. SeeMoimjA.iK Actions, 
 
 CONTEMPT. See Appeal — Attacumknt of Pku.son— Examination ok 
 .TiiiKiMKNT DniiToit — Mas I'Kii SKgi'KSTitAiio.v. 
 
 appeal by party in, 71). 
 
 from order dismissing motion to commit for, 7!>. 
 attachment, for re*U!.!".l to make discovery, 5i;i. 511. 
 
 notice of motion for, service of, 511. 
 breach of injunction, 55, 58. 
 commit, notice of motion to, service of, 514, 
 costs of, payment not made a condition of dischar^'e. 51 1. 
 custody, dischar>,'o from, when onlered, 514, 515. 
 default, how proved, 514. 
 discharf^e of prisoner, 514, 515. 
 disobedience of injunction, how punished, 55, ,").s. 
 motion to commit for, how made, 514, 515. 
 
 notice of, service of, 514. 
 order for discovery, disobedience of, 513, 514. 
 threatened, may be restrained by injunction, 57. 
 witness, not attendinj^ for examination, 545. 
 
 produciuf^ documents, 545. 
 
 CONTINGENT RIGHTS. 
 
 Court may refuse to adjudicate on, 4(). 
 
w 
 
 
 1172 
 
 INDKX. 
 
 OONTINUINO PU0(!I;HI>IN(1K. 
 
 TINITK PnoCK.KDINdH. 
 
 SfO All.MKSIKNT— ()l!liKi; TO (.'oN- 
 
 OONTUACT. See Ku.ks iiv iiik Coi-iit. 
 
 action for broivuli of, wliure it lieH iv^iiiiiHt a1)Huiit (lefeiiduiit, :I0I. 
 part |)orforinancoof, iiceepted in full, elTeet of, .')1. 
 Hpccitlu pei'foriniiiice of, wlicn doci'oed, 1(1, 17. 
 
 juriHdic.tioii of ('oiiit to dfcire, II. 
 BtipiilatioiiH not of I'sneiice of, to bo (•oll^,tl•llod an foniU'i'K in lv|iiitv, 
 
 ,'51. 
 
 t;ONTU()VKIlTKI) MUNICD'AL KLHCTIONS. 
 
 abandonment of proceedin^n, Hll, Hl'J. 
 acclamation, election by, cannot he diHpnted, HOH. 
 afiidavit ot relator, Hl;t. 
 
 entitliny, HIH. 
 lilin«, Hlil. 
 forniof, H17. 
 justification, form of, 818. 
 service of notice of motion, form of, H:i(). 
 application, impeacliinn election, liow made. H(I7. 
 bribery, iinpeachinj; election foi', HO'.l, Hll. 
 candidate, definition of, HOH. 
 
 whose nomination prevented, nuiy contest, H08. 
 collusion, setting aside proceedings for, 80'.). Hll. 
 corporation, election of all the memhei-s of, nniy be impeached, HO'.l. 
 
 ofi'icer of. may he a relator, SO',). 
 corrupt practices, impeachinii election fur, soi), H14. 
 costs, discretion as to, Hlfi. 
 
 decisions as to, Hlti, H17. 
 disclaiming party, when not liable for, HI"), 
 relator liable for, HO',). 
 discretion of Jadgii af to awarding seat, 812, 
 disclaimer, 'vhen to be filed, 814. 
 costs, in case of, H15. 
 
 duplicate to be delivered toClerk of Council, Hir>. 
 effect of, after proceedings, 815. 
 form of, 814, 821. 
 transmission of, 814, 815. 
 electors, who are, 808. 
 
 when estopped, 808. 
 executions, iiuindamiis to corporation, form of, s24. 
 
 sheriff, form of, 82.'j, H2«. 
 Ji. fa, for costs, form of, 826, 827. 
 evidence, 814. 
 
 vivA voce,, when necessary, 814. 
 forms of proceedings in, 817-827. 
 
INDKX. 
 
 1178 
 
 Jlll>Kll TO (ON- 
 
 CONTUOV KIITKI) MUNICIPAL KLKCTI()NS-C..«//Hm',/. 
 
 lioarin>{ of inotiDii, HIS. 
 
 information, when lU'coHsary to be ftlcil. Hi)'.). 
 
 irre^jiiliirity ill procoudiii^H, Hll, Hl'i. 
 
 waiver of, Hll. 
 isHiic, iiiivy be (liroiited, 815. 
 jiulKiiK'iit on iiiolioii, HlC). 
 
 form of, for rdntor, H22. 
 
 (lifeiKliiiit, K2;i. 
 for (M)Hts, form of, H'J.'i. 
 juHtitlcatioii, iiHiilavit of, form of, 818. 
 motion, hoariiinj of, 81"). 
 notice of motion to impeivcii, 807. 
 
 application for leave to serve, 810. 
 time for, 810, 811. 
 defective a'.leyiitioiis in, 80i». 
 /Kit to Hcrve, 807, H'JO. 
 form of, 812, 817, 
 
 objections to be stated in, HI'i, HIH. 
 Bervice of, 811. 
 
 seven days' necesBary, Hll, 812. 
 objections to be stated in notice of motion, 812, HlH. 
 
 omission to state, etfect of, 813. 
 officer of corporation, may be a relator, 80!). 
 order for leave to serve notice of motion, form of, H20. » 
 
 triiil nf issue, form of, 821. 
 property (lualiHcation, how estimated. 812. 
 recognizance, relator to enter into. 810. 
 amount of, 810. 
 fornn of, 818. 
 sureties reijuired, 810. 
 relator, interest of, proof of, 818, 8U. 
 liability of, for costs, 809. 
 who may be, 808, 80'). 
 setting aside proceedinj^s, for collusion, 801). 
 Beven days' notice of motion to be given, Hll, 812. 
 several applications, 811. 
 summary trial of application, 814. 
 technical objections, not to avail, 812. 
 time for making application, 810, 811. 
 verdict, form of indorsement of, 822. 
 whole council, election of, may be impeached, 80i). 
 
 CONVEYANCE. See Sales by the Codbt. 
 Canada Company, by, 211. 
 execution of, how ordered, 25. 
 
1174 INDKX. 
 
 CONVEYANCE— CoM</n««rf. 
 
 purchaser entitled to, 25. 
 lefusal to execute, 25. 
 
 (COPARTNERSHIPS. 
 
 jurisdiction of H. C. J. us to, 11, IS. 
 
 COPIES. See Costs. 
 
 certified when adniissible, 5-](!. 
 demand of, to be in writing, -ICA. 
 of ])ro(;codin<,'s for servic.', -KjiJ. 
 " office," what aie, l(i8. 
 
 how cortilied, 4('»1. 
 oflicial, when ilispensed with, 4r.:<. 
 service of, time for, after demand, 4ijl. 
 " tine, " what are, 4(54. 
 
 CORONKRS. 
 
 return of process by, procedure to com))el, 732. 
 
 ("OIll'OIl.X'riON. See CoNTitovKUTEn MrNicir.^L Ki.kctions Dihcovkhy. 
 ortiecr of, when he nniy be made a defendant, •i'24. 
 
 examination of, how far evidence, 4r.>, 495. 
 
 liable to examination for discovery, -.'Hit, 4H4, 1H,"(. JH'.i. 
 production of documents, by, 4i)i), 500. 
 writ of sununons, how served on, 2V>7. 
 
 COSTS. Se(! .\i)Mis-isi'ii.\ric)N — li.Mi.MUiK Piiockkih.nus — (Jo.N'iuiniiirKD 
 
 MlINICU'.M, I'^IiKCTIONS — COUKT OK Api'K.VI, — DoWElt — lijKCTMKNT— 
 
 lNTKiirM-;\ni;H- Masi'icu — Moiitg.vok Actio.ns — Sai.ks hy tiik C'oukt 
 — Skcuuhv kou (/osts— Soiiicrroii^Soii.'JiTou \sn Ciakst — 1'ax- 
 ATiON— Ta.\in(1 Ofkickus. 
 
 abandoned .iiotion, :)f, 517. 
 
 action, within jurisdiction of C. C. of, !(00-'J02. 
 
 adjournment of trial, of, 5i)7. 
 
 administration action, of. Master's dis(;rction as to, 770. 
 
 commission in lieu of, '.)()7, '.)(H. 
 
 when unnecessary, 7t)'.). '.)0H, ilOit. 
 
 admit, notice to, when necessary, to t,'et costs of proviuf^ document. 
 
 909. 
 occasioned by refusal to, 909. 
 
 affidavit of increase, by whom to bo inad(\ 919, 920. 
 
 for'u of, 920. 
 
 payment of milea{«e, 919. 
 
 when admissible on (juostion of, .")40. 
 
 alimony, in action for, 519, 520. 
 
 how payable, 90(;. 907. 
 
INDEX. 
 
 1175 
 
 TIONS-DlSCCiVKIlV. 
 
 COSTS— Continued. . 
 
 amending pleadinga, of motion for leave for, 453. 
 appeal, from decision depriving successful party of, S08, 890. 
 order against solicitor personally, 899. 
 report, of, ()95, ()9(). 
 of, when Court equally divided, 9 ; and see Cocrt ok Appfal. 
 
 books defective, (181. 
 respecting, when it lies, 899, 900. 
 
 does not lie, 899, 900. 
 security for, to be given, on, 79. 
 application to deprive successful party of, 898. 
 attachment of debt, of, in iliscretion of Court, 90.'j. 
 award, payable under, tu.Kation of, 917. 
 bill of, delivery of, to client under order, time for, 927. 
 certificate on briui^ing action under Lower Scale oi, 9'2(i. 
 cestuin qui' tniati'iit, in action by one of several, 349. 
 claim for, when to be indorsed on writ of summons, 284-5. 
 client, dalivery of bill of, under order, time for, 927. 
 commission in lieu of, in administration and partition actions, 907, 908. 
 apportionment of, 908. 
 how estimated. JOS. 
 to take evidence, of, 920, 921. 
 confession of defence arising after action, on, 4")ii, 457. 
 contempt, of, 514. 
 
 copies of documents, in possession of opposite party, of, 4G5. 
 pleadings, for interlocutory motions, of, 922. 
 proceedings, of, 404. 
 connter-claim, in cases of, 89."), 89(1, 897. 
 
 County Court case brought in High (^ourt of Justice, 900-902. 
 scale of. when applicable in H. C. J., 900-903. 
 tanff of, 924, 1074. 
 Crown, in actions by, or against, '-VM. 
 de die ill diem, in alimony action, 90(1, 907. 
 defence, of, when demurrer should have been filed, 421. 
 defendants improperly severing, cf, 914. 
 
 may be ordered to pay, to co-defendant. 905, 906. 
 • not appearing, when not entitled to, though action dis- 
 
 missed, 020. 
 succeeding, not ordered to pay plaintiff 8, 894, 900. 
 
 co-defemlant not ordered to pay, 900. 
 when entitled to, of adding a plaintiff who fails, 900. 
 delivery of bill of, to client, time for, under order, 927. 
 
 See SoLiciTou an» Client. 
 
 depriving snccessful party of, 897, 898. 
 
 application for, time for making, 898. 
 
1176 
 
 INDEX. 
 
 
 COSTfi—Continved. 
 
 disallowance of, of unnecessary propeediiu' ;il 1, !)1'2. 
 
 acii-H li.i administration, 908, llOil. 
 
 partition, <)08, '(O!*. 
 inspection, or production of docu 
 
 meiits, [)!'>. 
 disbursements, of plaintiff in alimony action, .''•(,, hi?. 
 
 affidavit of, by whom to be made, 919, !l'20. 
 
 form of, 920. 
 tariff of, 921, 1090. 
 discretion of Court as to, 891-898. 
 
 cannot be dele 't'd '';;4. 
 when a))peal froin, ii' a, 899. 
 does not lie, H'.)9. 
 Division Court case brought in II. (". J., 900-902. 
 
 C. C, 900-90a. 
 scale of, when applicable in H. C. J., 90(»-'.Mt2. 
 
 C. c, <.m. 
 
 documents, of proving', when not allowed if notice to itdmit ikU ^;i\en, 
 
 1109. 
 when admission refused, 909. 
 •' event," following;, effect of, 897, 900-901. 
 
 what is meant by, 895. 
 evidence, shorthand notes of, 90(1. 
 examination for discovery, of, 901. 
 
 when disallowed, iKM. 
 
 exceedint^ f30, to be taxed by a taxing oftjcer, 91iJ. 
 execution for, when it may issue before revision, 9i'.t. 
 experts, of, to qualify them to t;ive evidence, 2()1. 
 
 improperly em[)loyed, 201. 
 extendin^i time, of, 910. 
 fees of Clourt, for seal when not chart,'eable, 927. 
 
 Hi>,'her Scale of, to be paid if action brought impio- 
 ))erly under Lower Scale, 927. 
 
 paid according to Higher Scale when recoviTuhk'. 
 thougii Lower Scale applicable, 927. 
 
 ]«iyable in C C actions tried in H. ('. J., 9.'). 
 
 tariff of, 1090. 
 following " event," H9"). 
 
 former practice as to, how far preserved, 920. 
 further time to plead, motion for, of, 'lO.'j. 
 garnishee proceedings, of, in discretion of (Uxu't. '.(0."). 
 "good cause," what is, for depriving successful party of, 897 '.( 
 gross sum for, may be allowed, 904, 90-'>. 
 heir, when entitled lo priority for, in administration action, TOii. 
 
INDEX. 
 
 1177 
 
 ion action. Ti'iii 
 
 COHTB— Continued. 
 
 Hit»her Scale, of, if allowed in action brouj^lit under Lower Scale, 
 extra fees to be paid, '.(27. 
 fees paid aecordinj.; to, nniy be allowed, tliout;li T^ower 
 Scale applicable, i)'27. 
 tariffs of. 1070, 1090, 1100. 
 inspection of documents, of, when disallowed. 012. 
 interim, in alimony action, 1)0(1, 907. 
 issues tried by jury, 891, 
 judgment, entry of, for, when allowable before revision, 919. 
 
 plaintiff when entitled, to, for, on confessing defence, 4.')(j, 
 
 457. 
 justification of bail, of. See Baii.aiilk Pkockedinok. 
 jurisdiction of ("ourt as to, 891, H92. 
 jury cases, in, 891, 892, 895. 
 
 recommendation of, is not " good cause" for depriving snccossful 
 party of, 898. 
 leave to appeal from order of H. C. J. as to, when necessary, 7;i-75. 
 
 when to be asked for, 75. 
 when granted, 75. 
 
 leave to attend proceedings in M. O., effect of, as to, 37S. 
 
 lien for. See SoLRtroH. 
 
 Lowtr Scale, of, certificate to be filed on bringing action under, 920. 
 
 fees of Court, how payable under, 92(1. 
 
 tariff of, 924, 1074. 
 
 ill what eases applicable, 924-926. 
 
 lump sum may be awanled for, 904, 905. 
 maps, of, affidavit as to. 920. 
 
 mileage, for service of ineiiir process, when not allowed, 919. 
 not to be allowed without adidavit of payment, 919. 
 mistake, occasione 1 liy, not to be allowed, 921. 
 models, of, 920. 
 moderation of, 1070. 
 mortgagee, right of, to, 900. 
 
 negligence, occasioned by, not to be allowed, 921. 
 new trial on payment of, default in jiaying, 0(13. 
 
 taxation of, (l(l;i. 
 next friend of infant, liability for, '.iai. 
 nou-jury cases, in. 8i)2-894. 
 
 discretion as to, how exercised, M9:( 4. 
 non-payment of, staying proceedings for, 43. 
 ■lot admitting, ot^easioned by, 909. 
 official guardian, of, 115, 11(1. 
 
 Iiow payable, 905. 
 of abandoned motion, 517. 
 
1178 
 
 INDKX. 
 
 C08T8 -Continued. 
 
 of adjournment of trial, 597. 
 
 administration action, 7()'.», 770, <»08, !»0!». 
 
 commission in lieu of, 007, U08. 
 agency letters, 1081. 
 alimony action, 511), 520, <J0(;, •)07. 
 amendment of pleadings, motion for, 453. 
 appeal, wlienOourt ecjually divided, 'J. 
 books defective, fJHl. 
 from report, (')'.(5, dOO. 
 attachment of debts. i)05. 
 copies of documents, 405. 
 
 ploadin'^s, for interlocutory motion, ',(22. 
 proceedings, 404. 
 
 counter-claim, 8'.Mi-H!)7. 
 
 County Court action bionj^'lit in Hif,'h Court of Justice, 900-2. 
 
 Crown, in actions by, or against, H",)H. 
 
 defence, filed instead of demuirer, 421. 
 
 defendants improperly severing, HOti, 014, 1000. 
 
 e.\amination for discovery, 004. 
 
 experts, ^(.>1. 
 
 motion for t.irtlicr time to plea 1, 405. 
 
 to vary minutes, ()47. 
 particulars, when writ not spocially iiuloiscd, 00:>. 
 partition action, 007, 008. 
 plans, 020, 1070. 
 
 proceedingh to save expense, 021. IWH. 
 protest, 507. 
 
 proving documents, 000, 1070. 
 shorthand notes, 000. 
 
 reporter, 000. 
 surveys, 020. 1070. 
 
 "the diiy" at itssi/.cs, wluit included in, lO.'^.'i. 
 third party, oils. ;i72. 
 trustee. HOI. 
 vesting order, 25. 
 witnesses, 1007. 
 order of II. C. J. as to, wlien appealable, 73-75. 
 
 not apix-alable, 74, 75. 
 leave to appeal from, when to be applied for, 75. 
 to continue proceedings, may be issued to recover, 507. 
 out of estate, legatee wlien entitled to, 800. 
 
 personal representative wlicn entitled to, 800. 
 trustee, when entitled to, 800. 
 over caution, incurred through, not to be allowed, 021 . 
 
■'•- »»ai"V 
 
 INDKX, 
 
 1179 
 
 : Justice, 900-'.'. 
 
 COFjTB-'Continued. 
 
 par'aculars, of, when writ not specially indorsed, 1)03. 
 partition action, commission to be allowed in lieu of, !)07, 90H. 
 
 when unnecessary, '.(OH, 000. 
 party and party, what allowable on taxation between, 021, 02;}. 
 payment in satisfaction, plaintiff when entitled to, after, 570. 
 
 of amount claimed by writ, taxation of, after, 28,5. 
 personal representative, may be ordered to pay, of unnecessary action, 
 
 3.50. 
 obtaining' order to continue procoedinjjs. 
 liability for, ")(')4. 
 plaintiff, not ordered to pay third party's, 00(i. 
 
 one of several, failin;,', SKKt. 
 plans, of, 020. 
 
 proceedings tondiuf,' to save expense, of, when allowable, 021, 1083. 
 production of documents, of. when disallowi'd, 012. 
 protest, of, recoverable, r)07 
 redemption action, on dismissal of, 307. 
 report, as to, wiien revision necesHai-y, 010. 
 reserved, how disposed of, (J,51. 
 revision of taxation of, when necessary, 017. 
 
 duty of Taxing Officer on, 018. 
 execution befoi-e, when it may issue, 010. 
 powers of Taxing OHicor on, 018, 010. 
 sum for costs not to be inserted in repor*^ 
 until after, 010. 
 revivor, for, .1(17. 
 
 scale of applicable where II. C. •!. case tried in G. C, 006. 
 
 C. C. case tried in H. C. ,1., 00(). 
 scandal, application to take proceedings off files for, 415. ' 
 
 seal, fee for, when not payable, 027. 
 security for, 93!)-0l8. See Siu'i-iurv I'oit Costs, 
 set off of, wlion allowed, 015-017. 
 
 damages aiul costf . not to prejudice solicitor's lien for, 015-7. 
 of extra, oecasionoil by 'oringing action in wrong Court, 
 when allowed, 000-002. 
 
 several actions, of, whore one might have been brvMight, 004. 
 
 issues, of, 805. 
 severing improperly in defence, one set allowed, 014. 
 Sheriff's liability for, foi' not returning writ, 732, 
 
 in interpleader proceedings, 90(), 
 shorthand notus, of, OOli, 1070. 
 
 reporter, of, i.'OC). 
 solicitor, absent at trial, liability of, for, 590. 
 
 lien of, for, not to be prejudiced by set off. 015017. 
 
1180 
 
 INDEX. 
 
 COSTS— ConfmHfd. , 
 
 solicitor, neglect to doliver papers at trial, 595). 
 
 ordered to pay, appeal by, 899. 
 Bolicitor and client, as between, trustee entitled to, 900. 
 
 unuHual proceedings, when allowed between, 922. 
 staying proceedings for non-payment of, 43. 
 statutes as to, repeal of, H91. 
 stop order, liability of party obtaining, for, 254. 
 subi)ODna, of, 51-54. 
 
 summary application for possession, of, 384. 
 surveys, of, 920. 
 
 tariffs, of, 923, 924, 1070, 1090, 1100. 
 ta.xation of. See Taxation. 
 
 appeal from, to Judge, iVM). 
 
 evidence on, 797, 79H. 
 
 discretion of 'J'axing Olificer not, 
 
 interfered witli on, 097. 
 when it lies, ()97. 
 Master in Chambers, (')9.s. 
 Ordinary, 098. 
 after payment, 28.'). 
 award, under, 917. 
 between party and party, 921. 
 
 solicitor and clicnl, il28. Sec Somcitoh ani> 
 
 Cl'ENT. 
 
 exceeding «30, 913. 
 
 exprcFj reference, when unnecessary, 91."i. 
 
 notice of, one day's, sufricient, 913. 
 
 to non-appearing defendant, unnecessary, 913. 
 
 order for, between solicitor and client, effect of, 928. 
 
 parties entitled to attend, 913. 
 
 payment by client of amount found due on, 928. 
 
 pending reference, action on bill stayed, 928. 
 
 revision of, when necessary, 917. 
 
 when action brought in wrong Court, 900-903. 
 tender of, on serving petition on formal party, 910. 
 omission to make, offect of, 910. 
 party may bi> entitled to taxed costs, notwithstanding, 910-1. 
 
 third party, may be ordered to pay, 308, 372. 
 
 be paid, 372. 
 of, how ordered to be paid, 900. 
 trustee, guilty of misconduct, nniy be deprived of, 899. See TiiObiKH, 
 
 ordered to pay, 900. 
 liability of, rh to, 900. 
 rights of, as to, out of estate, 891. 
 
INDEX. 
 
 1181 
 
 between, 92'2. 
 
 rt. 
 
 i„j4 Ofiicer not 
 
 on. 097. 
 
 e SOLICITOH AND 
 
 neceSMivry, 913. 
 ■ffwtof. '.i'iS- 
 
 in.'.fi^. 
 '.I'iH. 
 
 0-110:1. 
 
 ritlistandin<',9l01. 
 
 rt'.i'j. Bee TuosiKK. 
 ^v.'.tttO. 
 
 GOBTS—Contimu-d. 
 
 unnecessary appearance on motion, of, 911. 
 
 procet'<lin(4s in M. ().. of, ;).")•.'. 
 unusual proceedings, of, not to be allowed, 9'21. 
 
 when allowed between Holicitoriind client, !I2'2. 
 vesting order, of, 214. 
 witnesses, of, 9'2(), 921. 
 
 when rejected, 920. 
 
 evidence immaterial, 920. 
 
 (30UNSE1.. 
 
 addresses of, at trial, ;>94, iV.lo. 
 begin, right to, 'M, '>%'>. 
 
 on motion for new trinl, (id;}. 
 compromise, powers of, as to, (i.^d. 
 reply, right of, 595. 
 
 on motion for new trial, (>('p;i. 
 
 COUNTER-CLAIM. See County Couura— Intehpleahkii I'l.i.AuiMis - 
 Statement of Claim. 
 
 against plaintiff and third party, 408, 415. 
 allowed, examples of, 405-408, U:!, 414. 
 amendment of, by defendant, 451, 452. 
 
 time for, 451, 452. 
 cause of action arisinj^ after action, may be pleaded, 454. 
 
 defence filed, how set up, 455. 
 continuing proceedings on, on death of defendant, 5()5. 
 costs, of, 895-897. 
 
 defence to, arising after action, may be pleaded, 455. 
 reply, how set up, 45(1. 
 
 by plaintiff. 417. 
 thinl party, 411). 
 defences which may be set up by, 405-408, 4i;{, 414. 
 defendant may plead, 405, 
 
 not bound to plead, 407. 
 delivery of, after notice of motion for judgment, 404. 
 disallowed, examples of, 413, 414. 
 effect of, 405. 
 
 essential that relief be claimed thereby against j,laintiff, 407. 
 form of, 410, 411,415. 
 independent action, how far it is, 409. 
 judgment on, 414, 415. 
 
 payment into Court in satisfaction of, 570, 571. 
 relief, prayer for, in, 411, 48(5. 
 •ecurity for costs, defendant pleading, may be required to give, 410. 
 
1182 
 
 INDEX. 
 
 h ' 
 
 il 
 
 \ 
 
 ^ 
 
 
 
 
 \ 
 
 % 
 
 % 
 
 COUNTFU-OLAIM— 6'<>/i</KH«'(;. 
 
 service of, on parties to action, 415. 
 
 third particH, 41(1. 
 striking out, 400, 411. 
 
 third party, cannot be served vvitli, out of jurisdiction, 40rt. 
 added to, hy phviiitil'f, 4()H. 
 and plaintiff, a;;aiiiHt, 40.-i, 41.'). 
 
 form of, 41;'). 
 i!elivcry to, 41."). 41(1. 
 wliether he can plead ? 4()s. 
 time for delivery of, 403, 405. 
 
 expiry of, delivery after, 404, 405. 
 
 COUNTY COURTS. See BAii.Ani.E Phockij.inos. 
 
 actions in, may be tried at Ili^li Court Sittinf,'H, ',(4, (JOl. 
 tried at \\\^\ Court 8ittint,'K, jiidtxuR'nt on, (idl. 
 
 motion uf^'iiinst, t'lOl. 
 in Ili^^h Court, may bo tried at Hittinj^H of. 11;!. 
 appeals from. See Couut of Aim'i;ai,. 
 Clerks of, office liours of, 051. 
 
 books to be kept by, 052. 
 
 fees payable to, for C. C. cases tried in II. C. .!., 05. 
 to fnrnisli copies of notes in IIi<,'h Court actions tried in 
 C.C.CO'i. 
 forward Iligli Court records to Registrar, (lO'i. 
 provide note books for 8ittinj,'s of II. C. ,1,, wlien V,. ('. 
 cases tried, 04, 05. 
 costs, where Hi^h ('ourt action tried in, 00(1. 
 
 C. C. action tried in II. C. J., 00(1. 
 Court Invs no jurisdiction, 040, 050. 
 counter claim, limit of jurisdiction as to. I'iH. 
 
 defendant's rij^iit to briiij^ action on, in H. C. J., 128. 
 fees payable in C. C. cases tried in H. (!. .]., 05. 
 fraudulent conveyances, summary api)li(;ation to set aside in, 702. 
 interest in land, not saleable in execution, how readied, in, 702. 
 interpleader in, 8H7. See iNrrnpLEADKu. 
 
 appeal from, HKO. 
 Judges of, jurisdiction in C. C. cases referred by Judf^e H. C. J., 01. 
 are Local .Tud{ie8 of H. ('. J., 125. 
 
 powers of, as, 125. 
 Judges of H. C. J., powers of, in cases in, tried in H. C. J., 002. 
 judgments of, motion aj^ainst, 050. 
 
 iKjtice of, 0.50. 
 appeal from. See Couut ok Appkal. 
 entry of, when case tried in II. C. J., (101. 
 
 staying, (101, 
 
INDKX. 
 
 llHJi 
 
 , 4(H. 
 
 , (101. 
 
 i.lioiift^ainal.liOl. 
 
 ii.r,..i.,or.. 
 
 „.t iictioi.s tried m 
 
 driir. CO'i. , 
 
 [, ('. .1., vvWen CI. <• . 
 
 ou. in H. C. J.. ViH. 
 
 set asi«\e in, 71)2. 
 i-eacbed, in, 71)2. 
 
 Judt-e II. C.J. .'■'«• 
 of, as, 125. 
 
 iun.c.J..*i02. 
 
 I'.AI.. 
 
 staying. <>0i« 
 
 COUNTY COURTS -C'oh/i «»,,/. 
 
 jurisdiction of, 12(i, 127. 
 new trial, motions for, '.»")(). 
 
 notice of, '.(.V), 
 notes, .Tndj^e'B, copies to bo fiirniHlieil in actions tried in II. (',. ,J,, tiU-'. 
 notico of trial in H. (!. •!., motion to set aside, (iOl, 
 payment of money into Court in, !)")1, !(.V2. 
 
 practice of 11. C. .).. how far to be followed in, 127. /^t^--^^ / i' -^7 
 procedure in, itoO. 
 
 records in \\v^\ ("onrt actions tried in, bow forwarded, ((02. 
 ri'miiiict, trial of, wbere action entered for trial in il. C. J., (i02. 
 sittinfjs of Judj,'es in, (t1'.». 
 Rubpoonas issued from, effect of, !l I',), 
 transfer of acttion from, to H. C. .1., 12(). 
 trial of Hiyli Court cases in, (iOl. 
 
 C. C. cases in 11. C. •!., wlui; oivleicil. !l|. 
 write of, how seak-d and tested, ill'.t. 
 
 summons, issue of, from, 272. 
 
 COUNTY TOWNS. 
 
 assizes to be held at, tlO, ',(1. 
 
 ('OUllT. See Cour.r kou Ckown Casks Rkskiivkd- -('hiist or .\i'i'i-..\i, - 
 IIioH ConiT OK Jdstu K— Sui'uuin': Couirr oi' .Ii huaii i:i:. 
 sittint^s of, ill rdincvii, ^jH, 71. 
 
 COURT FOR CROWN C.VSES RESERVED. 
 Divisions of H. C. .1. to be, 11, 
 
 COURT OF APPEAL. See Appev 
 
 a Division of Supreme Court of -Judicature, 1. 
 amalf^amation of, with other Courts, 4. 
 annual rents, appeal respectiui,', 7(i. 
 appeal to, from sinj^le Judj^e, 71, 72. 
 H. C. J. See Appkai,. 
 part of judunient, HCt. 
 consent order, of II. C. .1. not api)ealable without leave, 7;i. 71. 
 
 svhat is, 74. 
 constitution of, fi. 
 
 (■'out rove rtcd KlrrtioiiK Act, appeals under. Ivl 
 costs, jurisdiction as to, Hh. 
 
 order of H. C. .T. as to, when aiipealabie. 7;'>-7''. 
 restitution of, may order. Ho. 
 security to be given for, 7'.». See Aim'Kai.. 
 when Court equally divideil. '.). 
 County and District Couits, appeals from, ;S4. 
 default, judf^ment by, appeal from, (i(ii5. 
 discretionary order, appeal from, when entertained b> , 75. 
 
1184 
 
 INDEX. 
 
 COURT OF APVKi\L- Coiitiniird. , 
 
 liiHiTUHHiil of appeiil to, :<'>. 
 DiviHJoii ('oiirlH, ii|)|ii!til fioni, HJ. 
 DiviHioiml OoiirtH of. 7. 
 
 liow to bo coiiHtitiited, 7, H. 
 evidence, new, power of (Jourt to rei^uivo, ;"j4(i, '>i7. 
 
 wlii'ii iV(liniH8il)I(.' witlioiit leivve, ")-l7. 
 execution, Htiiy of, on appeal to, after levy, H'2. Sec Ari'KAi.. 
 facts, appeal on, H'l, 'M\. 
 
 Hi}4li Court, jiu'irtdiction of, may bo exercised by, 30. 
 interlocutory orders of II. C. .1., wiiere not appealable, 77. 
 JudfjoH of, (1 
 
 may act as ,ludi4es of H. C J., 7. 
 bold AHHizes, 7. 
 
 powers of. HJttinfj sin^'ly, 'M'>. 
 
 precedence of, (1. 
 
 rcsit{nation, or transfer of, ',(. 
 ai)poalod from not to sit in appt-al, H. 
 judtjmunt, written, of ahHont .hidf^e, H, !l. 
 
 number of .Jud;{es re(piired at delivery of, 8. 
 
 wliere Judt;e Ims re^ij^necl or been transferred, '.). 
 
 jurisdiction of, HIJ-;5(;. 
 
 leave to appeal to, when necessary, 7H-7<i, 78. 
 
 granted, 81. 
 
 refused, 81, H'2. 
 
 limitation of riL'lit of aiipeal to. 7.")-77. 
 
 fiiquor Lici'iixf Art, appeals under. Hi. 
 
 Masters are officers of, 14!). 
 
 matters in controversy, value of, as affecting' rij^lit of appeal to, 7.">-7. 
 
 multiplicity of suits, jurisdiction to prevent, 4ft. 
 
 notice of appeal to, to wbom to be },'iven, 7'.(, 80. 
 
 form of, 80. 
 
 service of, 80. 
 
 time for, 80. 
 
 Ofiicial Referee, Court may refer (jause to. ".Ki. 
 
 Ontario KUrtiun Act, ai>pealH under, M. 
 
 patent, validity of, apjjcal respectinj^, 7<). 
 
 property and civil ri^lits, appeals respectinf^, 7.'>. 70. 
 
 Provisional Judicial District Courts, appeals from, H4. 
 
 public rif^hta, appeals respectinj^, 70. 
 
 (}uasliing, appeals to, H,"). 
 
 quorum of, 7, 8. 
 
 real estate, appeals respecting, 77. 
 
 liegistrar of, how appointed, 107. 
 
 not to take fees for his own use, 108. 
 
INDEX. 
 
 1185 
 
 Al'I'KAl.. 
 
 I'.. 
 ble, 77. 
 
 of. H. 
 
 ;l>t of appeal to. l-'-l- 
 
 .. 70. 
 roin, IV4. 
 
 108. 
 
 OOURT OF M'VKXL -Contiinu;!. 
 
 roBponilentH, not appeu,liu><, Court may «ive relief to, iJO. 
 Rules of Court, power to miiko, 102-104. 
 Hecurity to be f,'iveu on ap[)etil to, 7i(. 
 Hinnle Ju(l)4o of, powerH of, 30. 
 nittin^B of, '.) 
 
 diituH of, sr.s. 
 
 extra, may be held, 'iU.J. 
 burrofjate Courts, appeals from. Hi. 
 time for, appeals to, H'2, 88. 
 transfer, or resi^^nation of Judfio of, !l. 
 
 value of property in dispute, as iiffectinj^ ri^ht of appeal, 75-77. 
 I'ofcr.s' Ijintn Act, appeals under, .'H. 
 Water Privili'jji'x .-icf, appeals under, M. 
 
 COVENANT. See Sales iiy the Coimit. 
 
 Canada Company. See Canada Comi-any. 
 
 forfeiture for breach of, when relieved aj^ainst, 21, 22. 
 
 CllEDri'ORS. See Admimstuatiox^-Masikr. 
 advertisement for, 17H. 
 
 form of, '.>7H. 
 
 when dispensed with, 774. 
 claims of, proof of, in administration action, 373, 774. 
 
 adjudication on, in adn'inistration action, 77o, 77(i. 
 affidavit as to, in administration action, 775. 
 corroborative evidence of , when requisite, 774. 
 disallowance of, appeal from, IHQ. 
 notice to prove, 77(), 777. 
 
 of allowance of, 770. 
 
 when same payable, 777. 
 parties entitled to attend, proof of, 373. 
 provin}^, after time expired, 777. 
 
 costs of, !»04, '.(Oij. 
 time for sendinfj in, 770, 777. 
 coming in after time, 17il, 180. 
 costs of, 904, '.105. 
 
 Cro%vn, prerogative right as against, ISO. 
 execution, adding as parties in M. O., 221, 222. 
 
 priority of, 233. 
 further directions, when entitled to notice of, 777. 
 interest, when entitled to, 8!), 772, 773. 
 judgment obtained by, eiTect of, 774. 
 mortgage, claim on, how proved, 770. 
 motion by, to vary judgment, 180. 
 over payment, of, by personal representative, 12. 
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 1186 
 
 INDEX. 
 
 CREDITORS— Continued. 
 
 receiver, when appointed in favour of, 00, (11, 210. 
 reference, may apply for conduct of, 154. 
 rehearing; cause, 180. 
 Statute of Limitations, 702. See Admimstuation. 
 
 CRIMINAL CONVERSATION. 
 
 jury, cannot be required to answer questions in actio.i for, 84. 
 trial must be by, 84. 
 
 except by consent, 84. 
 
 CRIMINAL PROCEEDINGS. 
 
 Crown cases reserved. Court for, 80. 
 jurisdiction of Hifjh Court in, 11, 30. 
 sittings for trial of, '.tl, 'J2, 
 unaffected by Judicature Act, 130, 131. 
 
 CROSS-ACTION. 
 staying, 407, 409. 
 
 CROSS-EXAMINATION. See Mastku. 
 
 affidavits to be used at trial, on, 541, 542. 
 
 cannot bo withdrawn so as to avoid, 543. 
 attendance of deponent for, how compelled, 542. 
 deponent not attending for, effect of, 542. 
 
 CROWN. See Attorney-General — ^ Discovery — Mortoaoe Actions - 
 Petition of Right — Specific 1'erformance. 
 
 actions against. See Petition of Right. 
 
 by, procedure in, 397, 398. 
 costs to, and against, may be ordered, 398. 
 counter-claim, may be pleaded by, 409. 
 debts due to, recovery of, ix. See Crown Bonds. 
 prerogative rights of, as against other creditors, 180. 
 revenue, proceedings respecting, not affected by liulex, 181. 
 trial at bar, right of, to, 588. 
 
 notice of, tc be given to Registrar, 590. 
 
 CROWN BONDS. See Sales by the Court. 
 when a lien on land, 797. 
 
 DAMAGES. See Interest. 
 
 assessment of, in default of appearance, 008, 009. 
 
 defence, 017, 018. 
 continuing, how assessed, 597. 
 
 
^i 
 
 INDEX. 
 
 1187 
 
 3ET(iA(iE Actions — 
 
 DA'SIAGES—Conti tilted. : . 
 
 interlocutory judgment for, 009. 
 
 judgment for, in default of appearance, (iOS. 
 
 may be awarded instead of injunction, 08, oi), 02. 
 
 undertakin}» as to, when required, on granting injunction, 59, 872. 
 
 effect of, 872. 
 when wrongful act discontinued before action, 02. 
 
 DAYS. See Time. 
 
 DAY TO SHOW CAUSE. See Mortoage Actions. 
 
 DECLARATORY JUDGMENT, 
 may be pronounced, 39. 
 
 DEED. See Conveyance— Sales uv the Court. 
 
 DEFENCE. See Chose in Action — Defendant — Statement of Defence. 
 defendants improperly severing in, effect of, 300, 9l4, 1009. 
 filing, attendance for, right to precedence, 134. 
 
 fraudulent, set up without defendant's knowledge, witlidrawal of, 045. 
 limited, in ejectment action, 315. 
 
 form of, 315. 
 action for money, 315, 310. 
 
 notice of, how filed, 315, 310. 
 form of, 316. 
 effect of, 316. 
 procedure on, 310. 
 severing in, at trial, 1009. 
 to specially indorsed writ, 032-634. 
 
 DEFENDANT. See Discovery — Pahties — Service — Statement op 
 Defence — Writ of Summons. 
 absent, service of, how effected, when residence unknown, 300. 
 acting in person, service on, when address omitted, 406, 467. 
 
 appointing a solicitor, 4(»7, 473. 
 address of, for service, when acting in person, to be given, 310. 
 alimony action, how far liable for costs in, 900, 907. 
 appearing in person, to give address for service, 310. 
 attachment of, for disobedience of order for discovery, 513, 514. 
 co-defendants, disputes between, 324. 
 
 claiming relief against, 305. 
 
 delivery of pleading to, 366. 
 corporation, officer of, not to be made party, only for discovery, 324. 
 
 may be made parties in some cases, 324. 
 costs, of adding unsuccessful plaintiff, when entitled to, 900. 
 co-defendant, may be ordered to pay, 905, 90(). 
 third party's, may oe ordered lo pay, 900. See Costs. 
 
1188 
 
 INDEX. 
 
 DEFEITDANT— OodtinMerf. 
 
 costs, liability of, for, in alimony action, 90G, 907. 
 
 plaintiff's, not ordered to pay, if successful, 906. 
 defence of, may be struc o it for disobedience of order for discovery, 
 
 513, 514. See Statement of Defence. 
 discovery by. Bee Discoveiiy, 
 documents, prsecipe order to produce, when obtainable by, 49G. 
 
 against, 490. 
 equitable rights of, to be given effect to, 40, 41. 
 
 may be asserted in separate action, 41, 
 need not to be set up by defence, 41. 
 fraudulent defence, for, witlidrawal of, (i}5. 
 
 judgment creditor, service on solicitor of, may in mortgage action, 473. 
 judgment in favour of, against co-defendant, 370. 
 meaning of, in Act and Rules, 2. 
 
 motion for judgment by, on admission in pleading, 042. 
 notice by, to person from whom contribution claimed, 30.5. 
 
 indemnity claimed, 305. 
 relief over claimed, 305. 
 
 form of, 305. 
 service of, without leave, 300. 
 
 out of jurisdiction, 360. 
 out of jurisdiction, when action may be brought against, 303-305. 
 |)laintiff not to be delayed by issues between defendants, 373. 
 severing in defence from co-defendant, effect of, 300. 
 
 costs in case of, 914, 1009. 
 solicitor of. See Solicitor. 
 
 appointment, notice of, 473. 
 changing, order for, 407. 
 third party, from whom relief claimed, right to bring in, 362-36*5. 
 
 may be substituted as, 371. 
 unauthorized appearance for, how far bound by, 287. 
 defence for, how far bound by, 287. 
 
 DEMURRER. 
 
 affidavit, required to plead and demur, 423. 
 amending after, 424, 425. 
 
 order for a i)r(Bcipe, 424, 425. 
 argument of, 522. 
 copy of, to be left for Judge, 522. 
 costs, when party pleads instead of filing, 421 
 defence, may be delivered with, 423. 
 delivery of, 419. 
 
 time for, 423. 
 documenta, referred to in pleading, cannot be referred to on argu- 
 ment of, 422. 
 
 k4 .* 
 
INDEX. 
 
 1189 
 
 ir for discovery, 
 
 le by, 49G. 
 against, i%- 
 
 in, 41. 
 41. 
 
 tgage action, 47i5. 
 
 )42. 
 
 id, 3G5. 
 , 365. 
 , 3(15. 
 
 form of, 305. 
 ; leave, 3(50. 
 urisdiction, 300. 
 ainst, 303-305. 
 iants, 373. 
 i6. 
 36 of, 914, 1069. 
 
 ring in, 3G2-3Gi5. 
 
 J87. 
 
 referred to on argu- 
 
 DEMURRER— Cone/Hitcff. 
 
 doubtful questions, not to be decided on, 420. 
 
 ejectment, when it may be delivered in, 420. 
 
 exception to previous pleading, 419. 
 
 extending time for aefence, does not preclude, 423. 
 
 frivolous, may be set aside, 423. 
 
 form of, 421. 
 
 grounds of, 419-421. 
 
 to be stated, 421-423. 
 judgment on, when overruled, 010. 
 leave to plead and demur, when necessary, 424. 
 
 after demurrer overruled, 425. 
 misjoinder, no ground for, 420. 
 next friend, want of, no ground for, 339. 
 non-joinder, no ground for, 420. 
 overruled, judgment when, 610. 
 
 leave to plead after, 425. 
 pleading and demurring, 423. 
 
 affidavit to be filed on, 423. 
 setting down for argument, 522. 
 
 Long Vacation, excluded in time for, 480. 
 
 statement of grounds of, 421-423. 
 
 Statute referred to in pleading, may be referred to on argument of, 421 
 
 of Frauds, defence of, cannot be raised by, 440. 
 time for delivery of, 403-405, 423. 
 
 DEPOSIT. See Sales iiy tiik Court. 
 
 DEPUTY CLKRKS OF THE CROWN. See Local Reoistkaus — 
 Officeks op Court. 
 
 appointment before, attendance on, 479. 
 
 appointment of, how made, 113. 
 
 assize, clerk of, duties of, as, 1-10. See Clerk op Assize. 
 
 clerks of C. C. to be, 112. 
 
 criminal proceedings, returns of, 140. 
 
 duties of, 130, 137. 
 
 examination of judgment debtor by, 734, 737. 
 
 fees of, 136. 
 
 commutation of, 112. 
 
 how payable, 113, 123, 124. . 
 
 judgments, return of , to be made by, 1.37. 
 marshall and clerk of assize to act as, 140. 
 oath to be taken by, 109. 
 
 before whom to be sworn, 109, 110. " 
 
 office of, where to be kept, 115. 
 orders, entry of, by, 137. 
 
1190 
 
 INDEX. 
 
 fl 
 
 DEPUTY CLEKKS OF THE CKOWN - Continued. ■ 
 
 orders for production, appeal from, 490. 
 
 to return writs, issued by, on pnecipe, 730-731. 
 postage on returns, to bo paid by, 140. 
 salaries of, 124. 
 
 orders in Council as to, to be laid before Legislntivo 
 Assembly, 128. 
 salaried, not to receive fees for their own use, 113, 123. 
 seal of, 114. 
 security to be given by, 110. 
 
 how approved, 110. 
 neglef" to give, effect of, 110. 
 settlement of judgments by <8. 
 tenure of office, 113. 
 
 writs of summonb, duty of, as to, 271, 272, 274, 275. 
 to be issued in rotation, 271. 
 
 DEPUTY REGISTRARS. See Local Registrars— Offickbb of Couri'. 
 
 appointment before, attendance on, 479. 
 
 of, 113. 
 Clerk of Assize, duties of, as, 140. See Clerk of Assize. 
 duties of, 135-137. 
 
 examinationof judgment debtors by, 734, 737. 
 fees of, 136. 
 
 howpaid, 113,123, 124. 
 
 maybe commuted, 112. 
 judgments, return of, to be made by, 137. 
 
 office of, when to be consolidated with that of Dep. Clk. of Cr., 112. 
 orders, entry of, by, 137. 
 
 for production, appeal from, 490. 
 
 to return writs, issued by, on prcecipe, 730, 731. 
 seal of, 114. 
 
 settlement of judgments by, 648. 
 solicitors' and agents' book to be kept by, 260. 
 tenure of office of, 113. 
 who to be, 112. 
 
 DETINUE. 
 
 judgment in default of appearance in action of, 60H. 
 form of. See Forms. 
 
 DEVISEE. See Administration. - " 
 
 DEVOLUTION OF ESTATES ACT. 
 
 Official Guardian, when to be notified of sales, 787, 788. 
 
 application by, to Court under, 788. • 
 
 sale by personal representative under, 787, 788. 
 
INDEX. 
 
 1191 
 
 )re Legislative 
 
 ICER8 OF COURI'. 
 
 ik. of Cr., 112. 
 
 DISBURSEMENTS. . ■,'• 
 
 tariff of, 10nO-10!)<). , 
 
 DISCLAIMER. See Co\TnovKinKr> Municipal Elkctions. 
 
 DISCONTINUANCE. , 
 
 of action, 571. ' 
 
 costs, on, 571. 
 effect of, 573. 
 form of, 573. 
 
 notice of, when it may be f,'iven, 571, 572, (')8H, fi84. 
 appeal, 683, ()84. 
 
 DISCOVERY. See Master. 
 absent parties, by, 515. 
 ^verse parties, examination of, for, 483, 484, 497. 
 
 production, right to obtain from, 497. 
 affidavit on production, form of, 500, 508, 510. 
 
 by whom to be made, 497-8. 
 
 corporation, 499, 500. 
 cross-examination on, 500, 510. 
 deponent must seek necessai-y information 
 
 for, 502. 
 how far conclusive, 509. 
 appointment for examination for, service of, 488. 
 attendance of parties for examination for, how procured, 485, 488. 
 co-defendants, right to examine each other for, 484. 
 
 ^ not entitled to notice of examination of plaintiff for, 
 
 487. 
 corporation required to make, 499, 500. 
 
 officer of, not to be made party only for, 324. 
 may be examined for, 483, 484. 
 committee of lunatic, production by, 505. 
 
 costs of proceedings for, when disallowed, 904. •' 
 
 cross-examination on affidavit on production, for, 486, 500, 510. 
 
 of party examined for, 489. 
 Crown, right of, to, 497. 
 
 default in making by defendant, 490, 491, 513, 514. 
 plaintiff, proceedings on, 578. 
 penalty for, 513, 514. 
 defence, may be struck out, for default in making, 490, 491, 513, 514. 
 defendant, when he may be examined for, 487. 
 
 cannot enforce order for, obtained by co-defendant, 497. 
 difl&culty in giving, 502. 
 
 dismissal of action, for plaintiff's default in making, 578. 
 documents, affidavit on production of, 508-510. 
 
r 
 
 1192 
 
 DISCOVERY— CoM<JttMed. 
 
 INDEX. 
 
 doonments, copies of, when to be produced, 502. 
 deposit of, how ordered, 499. 
 inspection of, order for, how served, .515. 
 liable to be produced for, 500, .501. 
 
 not in party's possession, costs of procuring for produc- 
 tion, 502. 
 order for production of, how served, 515. 
 privileged from production, 502-508. 
 
 how referred to in affidavit, 508 510. 
 on ground of public policy, 502. 
 
 being communications between 
 
 solicitor, and client, 
 
 50r).7. 
 
 communications between 
 
 solicitor, and agent, 
 
 507-8. 
 
 held in different capacity, 
 
 505. 
 
 title deeds, 504-5. 
 exposing to criminal charge, 502-.S. 
 irrelevancy, 503. 
 relating to party's own case, 503-4. 
 third party interested in, 505. 
 
 production of, 500-510. 
 
 Crown entitled to, 497. 
 party beneficially interested, by, 499. 
 pnecipe order for, 496, 498. 
 special application for, 495-497. 
 third party liable to make, 497, 499. 
 when right to, depends on preliminary 
 question, 512, 513. 
 
 referred to in pleadings, notice to produce, 510. 
 relevancy of, how determined, 509, 510. 
 ejectment, examination of defendant in, for, 488. 
 examination for, 482-488. 
 
 attendance of parties, how procured, 485, 488. 
 demurrer to questions, on, 493. 
 depositions, how taken, 493. 
 copies of, 494. 
 return of, to Court, 494. 
 signature of, 493. 
 when admissible in evidence, 495. 
 
 explanatory, may be taken, 489. 
 fees on, 486. 
 
INDEX. 
 
 1198 
 
 DISCOVERY— Conrmuer?. 
 
 examination for, Judge of C. C, when not to take, 910. 
 Master, when not to take, 010. 
 mode of conducting, 489. 
 non-attendance at, penalty for, 490-492. 
 officer taking, may report specially, 49.5. 
 order production, 490. 
 of parties, may be specially ordered. .537, .538. 
 
 witness, before trial, 537-9. 
 order for, when necessary, 488, 489, 537, 538. 
 place of, 48(5. 
 
 exclusion of parties from, 480. 
 not a public Court, 485, 480. 
 refusal to attend, penalty, 490, 491. 
 
 answer questions at, penalty, 490-492. 
 be sworn, 490, 491. 
 shorthand, how to be taken, 493, 671. 
 
 signature, dispensed with, 403. 
 examiner's office, not a public Court, 485, 480. 
 
 exclusion of parties from, 480. 
 former jurisdiction to grant, 17. 
 husband and wife, documents in joint custody of, ,505. 
 incidental relief, in every action, 17. 
 infant, next friend of, liability to make, 497, 498. 
 inspection of documents, 501 511, 512. 
 
 may be postponed, 512, 513. 
 order for, 512. 
 judgment for default in making, not set aside, 605. 
 Judicature Act, has not enlarged right to, 498. 
 lunatic, committee of, production by, 505. 
 married woman, next friend of, not bound to make, 498. 
 next friend of infant, liable to make discovery, 197, 498. 
 
 married woman, not liable to make, 498. 
 notice for inspection of documents, 511, 512. 
 
 time for service of, 511, 512. 
 notice to produce documents referred to in pleadings, 510, 511. 
 
 affidavit, 510-1. 
 
 form of, 511. 
 
 officer taking examination for, may order production, 490. 
 officers of corporations, examination of, for, 483, 484. 
 
 not to be made parties only for, 324. 
 official liquidator, production of documents by, 498. 
 order for, consequences of disobedience by defendant, 513, 514. 
 
 plaintiff, 513, 514. 
 service of, how made, 515. 
 
1194 
 
 INDEX. 
 
 DISCOVERY— ContiHJw/. 
 
 order for, inspection of documentB, i")12. 
 
 application for, 512. 
 See Hiipni documents — examination, 
 party required to make, must seek necessiiry information, ."iOi. 
 penal action, not ordered in, 4'.)H, 4'.)i). 
 
 paraou on whoao behalf action brou<4ht, liable to make, 4i)!>. 
 plaintiff, when he may be examined for, 487. 
 prtfripc order for production, only obtainable before trial, 4',».S. 
 privilege from, .'J02-r)0H. 
 
 f^rounds of, ')02-r)08. 
 production of documents. See supra documents. 
 
 on examination for, 48(), 48i), 4',)0. 
 
 re-examination of party examined for, 4H!). 
 Referee, whether he can order production ? 498. 
 refusing to answer questions for, penalty, 400, 4i)l. 
 
 attend examination for, penalty, 400, 491. 
 subpoena, to compel attendance for examination for, 488. 
 third party, when liable to make, 308, 4!)7, 4!M). 
 
 entitled to obtain, 3(58, 4!)!). 
 trustee, by, .507. 
 witness, examination of, for, when ordered, 487. 
 
 DISCRETION. See Costs — Couut of Appeal — Hion Corur oi- Justick- 
 
 OlU>EK. 
 
 DISPUTE NOTE. 
 
 appearance may be filed with, 31.5. 
 
 or within 4 days after, Siil. 
 effeci, of, 316. 
 
 former practice as to, 316. 
 procedure, after filing, 316. 
 
 DISMISSAL OF ACTION. 
 
 for default in delivering statement of claim, .575. 
 
 appearance at trial, 503. 
 
 making discovery, 578. 
 infant suing without next friend, 333, .334. 
 
 DISTRESS. .. • i , • . 
 
 injunction to restrain, when granted, 58. 
 
 DIVISION COURT. See Court of Appeal. 
 
 costs, according to scale of, when payable in H. C. J., l)00-!)02. 
 counter-claim, jurisdiction as to, 128. 
 jurisdiction of, to grant relief, 126, 127. 
 
INDEX. 
 
 11!)5 
 
 H COCUT OF JUSTICB- 
 
 ;. C. J., y'.>0-«.)02. 
 
 DIVISION COVRT—Vonliniicd. 
 
 practice of H. G. J., how far applicable in, 127, 12H. 
 speedy jud^'ment under R. TMi may be f^rantcd in, I'Js. 
 transfer of action from, to H. C. J., I'id. 
 
 duty of clerk on, I'Ji;, 
 
 DIVISIONAL COTJRT. See Coiiii of Aitkai,. 
 
 of Court of Appeal, 7, H. 
 of Higli Court of Justice. 
 
 accounts, may direct takinj^of, ti40, 
 appeal to, from Judge in Chambers, 'iOtJ, ()il2. 
 
 Court, 71. 
 at trial, fillo-ddH. 
 Master in Chambers, 2(17. 
 Referees, 21)7. 
 settinf^ down, ()!)2. 
 business to be heard before, 72, 2()(), 267. 
 by-laws, motion to quash, 207, 
 cause list, peremptory, 267, 208. 
 consent matters, 267. 
 constitution of, 72, 73. 
 criminal matters, 267. 
 equal division of opinion in, effect of, 72. 
 further directions, judf^ment on, when appealable to, 010. 
 habeas corpus, application to, for, 207. 
 inferences of fact, may be drawn by, 040. 
 inquiries, may direct, 040, 
 
 interlocutory orders, when not appealable to, 77. 
 what are, 77. 
 
 not, 77. 
 issue, may direct trial of, 040. 
 Judges of H. C. J. to arrange for holding, 73. 
 may sit in any, 72, 73. 
 sitting in, when disqualified, effect of, 73. 
 judgment, powers as to awarding, 640. 
 
 of, in C. C. cases, not appealable, 001. 
 jurisdiction of, 72. 
 
 in C. Ceases, 001. 
 
 to set aside judgment by default at trial, 063. 
 new trial, motion to, for, 640, 659. 
 
 powers of Court on, 640. 
 official referee, Court may refer case to, 96. 
 order of Judge in Chambers, when appealable to, 77-8. 
 president of, who to be, 72. 
 prohibition order, appealable to, 875. 
 Railway Act (R. S. C. c. 109) appeals to under, 267. 
 
1196 
 
 INDEX. 
 
 DlVISIONxVL COVnT— Continued. 
 
 single Judge, decision of liow far binding on, 71. 
 sittings of, how arranged, 7H. 
 
 extra may be ordered, 26(5. 
 
 in Q. B. and C. P, D , 265. 
 Cliy. D. 266. 
 
 to be held in Toronto, 6!(. 
 verdict, power of, to enter, (140. 
 
 DOCUMENTS. See Dircovruy— Mastkh. 
 
 admissions of, how proved, 559. 
 affidavit on production, 508-510. 
 
 cross-examination on, 486. 
 copies of, cost of procuring, 465. 
 costs of proving, when notice to admit not given, 009. 
 
 admission refused, 90'J. 
 delivery up, of, on redemption, 23'J, 240. 
 defendant, when entitled to order to produce on pnecipf, 496, 
 interpleader, production of, when ordered in, 496. 
 lien of solicitor on, 469, 470. 
 notice to admit, may be served, 559. 
 form of, 559. 
 produce, 510, 511. 
 
 form of, 511. 
 
 service of, how proved, 543. 
 rrder for production of, 496. 
 
 indorsement of, 492. 
 
 Special Examiner may make, 490. 
 
 penalty for non-production of, 490, 491. 
 plaintiff, when entitled to order to produce on prrccipe, 496. 
 postage for transmission of, to be forwarded, 475. 
 production of, may be ordered at any time, 495, 496. 
 
 at trial, in another cause, 475. 
 
 on examination for discovery, 486, 489, 490. 
 of witness, 545. 
 
 prtecipe order for. when granted, 496, 498. 
 return of, to officer transmitting, 475. 
 solicitor, lien of, on, 4(59, 470. 
 
 transmission of, by officers, provision for, 474, 475. 
 witness, may be ordered to produce, 545. 
 
 DOWEK. See Dowress — Mortoaoe Actions— Sales by the Court. 
 
 appearance in action for, 312, 313, 
 , arrears of, 610. 
 
 assignment of, writ for, 709. 
 
 h i ' 'liiiS 
 
INDKX. 
 
 1107 
 
 VOWEH— Continued. 
 
 aasif^nment of, writ for, form of, f)18. 
 
 wlion iasnablc hy defi'iidaut, 313. 
 costs in action for, when recoverable, 3J;!. 
 
 on non-appeiiraiiCL, dlO. 
 damages for detention, 14, OlO. 
 
 plaintih' wlien entitleil ;o. 2.s(), 813, 
 
 proceedin^jH for, u" )r judgment of Heizin. 312. 
 
 when rccovciiiblc in action for, 2H0. 
 defendant may file acknowled','mont of tenancy, 312. 
 dowress. See Dowukhs. 
 election between, and proviaioiiH of will, li, ].». 
 
 restraining,' action for, after, 15. 
 indorsement of writ, in action ft.., 2H(). 
 judf^ment of seizin, when it may be entered, 312. 
 
 on non-appearance, tUO. 
 jurisdiction of H. ('. ,1., as to, 11, 14. 
 landlord, substitution of, as defendant, in action for, 313. 
 non-appearance, in action for, judf^ment on, (ilO. 
 seizin, judgment for, on non-appearanee, (ilO, 
 tons temps prist, judgment on defence of, (ilO. 
 
 DOWRESS. SeeDowKU. 
 
 partition, when entitled to, 779. 
 
 
 -Sales by the Couut. 
 
 EJECTMENT. 
 
 appearance in, by person not named in writ, 313, 314. 
 
 affidavit, 313- i. 
 confession of action, defendant may give, (520, (521. 
 
 for part of land, 621. 
 costs, on non-appearance, Gil. 
 
 affidavit for, Gil. 
 order for, Gil. 
 damages, assessment of, on non-appearance, 611, 
 defence in, 441. 
 
 vexatious, G02. ,; 
 
 equitable defence, to be specifically pleaded, 441. 
 
 title, whether sufficient to maintain, 38, 48. , , 
 expiry of plaintiff's title pendente lite, effect of, 638. 
 formal defects in plaintifif's title, 603. 
 
 judgment notwithstanding, 603. 
 verdict notwithstanding, 603. ■ 
 how indorsed, 603. 
 
''<.f 
 
 1198 
 
 EJECTMENT— C->;/(«i(«L 
 
 INDEX. 
 
 joinder of other causes of action, when allowed in, 381-383. 
 judf^ment, final, leave to enter after appearance, G27. 
 landlord, appearance by, in action ai^ainst tenant, 313, 311 
 affidavit to be made by, 314. 
 form of, 985. 
 mortgagor may bring, 48. 
 non-appearancG, judgment on, 611. 
 pleading in, 441. 
 
 possession, pleading, effect of, 441. 
 statement of defence, in, 441. 442. 
 title of plaintiff, pleading, 442. 
 
 defendant, pleading, 441, 442. 
 vexatious defences in, 602. 
 
 ELECTION. See Controverted Municipal Elections. 
 
 ENGINEERS. See Expei-s. 
 
 Court may obtain assistance of, 261. 
 
 EQUITABLE CLAIMS. See Equitable Execution— Eqditai-le Ixtku- 
 EST8 — Equitahle Riohts — Equity of Redemption — Trial. 
 
 EQUITABLE EXECUTION. 
 
 debts liable to, may be attached, 748. 
 
 equitable interests in land, against, 748, 791. 
 
 how obtained, 747. 
 
 nature of, 747. 
 
 receiver appointed by way of, 60-1, 747 749. 
 
 EQUITABLE INTERESTS. 
 
 assignee of, pendente lite not a necessary party, 152. 
 in land, how reached in execution, 748, 791. 
 
 EQUITABLE RIGHTS. See Defendant— Equity— High Conn of 
 Justice — Law and Equity — Plaintiff. 
 
 H. C. J. to give effect to, 37, 39-41. 
 incidentally appearing, 41. 
 
 EQUITY. See Equity of Redemption — Law and Equity. 
 
 effect of Judicature Act as to, 4. 
 jurisdiction of H. C. J. in, 19, 20, 37-48. 
 rules of, to prevail, 66, 67. 
 
 when applicable, 67. 
 trial of causes, when relief sought in, 83-85. 
 
 J 
 
INDEX. 
 
 1199 
 
 jciTV-HioH CoruT 
 
 EQUITY OF REDEMPTION. See [MoRTOAOE-MoRKi.un; Actions- 
 Mortgagee — MORTOAOOR. 
 
 assignee of, liability of, 322. 
 
 right of to attack prior mortgage. 322. 
 part owner of, entitled to redeem whole estate, 23G. 
 
 redemption by, 235, 23(). 
 parties interested in, added in M. , 323. 
 when saleable under execution, 748. 
 
 ESSENCK OF CONTRACT. 
 
 stipnlations not of, to be construed as formerly in equity, 51. 
 
 ESTOPPEL. 
 
 of mortgagee, from consolidating mortgages, 227. 
 by representations, 233. 
 
 EVIDENCE. Sec Abstract of Title — Account — Aioiinistration — 
 Affidavits— Commission to take Evidence— Dislovehy — Master 
 — Quieting Titles — Witness. 
 
 admissions, how proved in, 559. 
 affidavits, admissible on motions, 543. 
 
 cross-examination on, 541-543. 
 
 of witnesses, when admissible at trial, 535-537. 
 
 power of Court to order, to be given by, 537. 
 
 used on interlocutory motions, not admissible at trial, 537. 
 
 when admissible at trial, 540. 
 
 cross-examination on, 541-542. 
 when to be filed, 541, 542. 
 withdrawal of, to avoid cross-examination, not allowed, 548. 
 books of account, as, 181. 
 
 consent to, by affidavits, must be in writing, 530. 
 copies of affidavits, when admissible as, 534. 
 documents, when admissible as, 559. 
 proceedings, when admissible, 543, 546. 
 record, when admissible in, 534. 
 corroborative, when necessary, 177, 178. 
 depositions, certified copies of, when admissible in, 543. 
 
 taken when no motion pending, irregular, 544. 
 documents admitted, must be produced at trial, 559, 
 notice to admit, may be given, 5.59. 
 
 form of, 559. • • ' . 
 
 refusal to admit, effect of, , v» ■/ 
 •xamination de bene esse, 537, 539. 
 
 adniissiblity of, at trial, 639. 
 grounds for, 539. 
 for discovery, when admissible as, 485, 4!I5. 
 
1200 
 
 INDEX. 
 
 EVIDENCE— CoHtiHHfd. 
 
 
 '1 
 
 I 
 
 
 % 
 
 examination of witnesses abroad, SBO. See Commission to take Evi- 
 
 DKNCE. 
 
 exhibits. See Exhiiuts. 
 
 further, power of Court to admit, iHG, 547, 596. 
 when admissible without leave, 547. 
 
 on reference back to Master, 189. 
 husband and wife, as witnesses for, or against, each other, 337. 
 libel action, in, 542. 
 Master's office, when to be given vivit voce, in, 537. 
 
 production of documents may be ordered in, 177. 
 malicious prosecution, in action for, 534. 
 memorial, registered, proof of, 534. 
 new, power of Court to receive, 54(), 547, 590. 
 notice to produce, spi"vice of, how proved, 513. 
 "not guilty by statute," what admissible under, 443, 444. 
 omission of, at trial by mistake, etc., 595, 59G. 
 original records, order for niihjxKua to produce, 533, 534. 
 
 filed in Court, proof of, 534. 
 parties, may be called to give, 534, 535. 
 
 non-attendance of, to give, effect of. 534. 
 patent, proof of, 534. 
 
 record, certified copy of, when admissible as, 534. 
 registered instruments, when admissible as, 559. 
 reversal of judgment on new, (558. 
 secondary, of wills, etc., when admissible, 559. 
 shorthand notes of, copies how ordered. '2()0. 
 
 for Judges, required on motions for new trial, 
 
 etc., G09-C70. 
 slander, in action for, 542. 
 subpoena, 533, 534. 
 
 Taxing Officers, powers of, as to taking, 257. 
 trial, affidavits when admissible at, 540-542. 
 wills, proof of, 534. 
 
 secondary of, when admissible, 559. 
 withdrawal of, not allowed, 548, 599. 
 witnesses, at trial to be examined vivd voce, 535, 536. 
 in Master's office, 177, 178, 537. 
 see Witness. 
 
 EXAMINATION. See Commission to take Evidence — Discovery- 
 Examination DE BENE esse — EXAMINATION OF JODGMENT DeBTOKS. 
 
 EXAMINATION DK BENE ESSE. 
 order may be made for, 5B7, 539. 
 
mm 
 
 ION TO TAKE EvI- 
 
 jr, 189. 
 
 li other, 337. 
 
 dered in, 177. 
 
 :43, 444. 
 3, 534. 
 
 motions for new 
 
 trial, 
 
 etc., Oty.>-t570. 
 
 5, 536. 
 
 EVIDENCE-DISCOVERV- 
 jKJODOttENTDEBTOBH. 
 
 INDEX. 
 
 EXAMINATION OF JUDGMENT DEBTOKS. 
 Debts. 
 
 120£ 
 
 See Attachhxnt or 
 
 appointment for, service of, 738. 
 arrested under final process, 756. 
 attaching debts, for, 734-737. 
 
 see Attachment of Debts. 
 attendance for, compelHng, 738. 
 clerks of debtor, when they may be examined, 737. 
 
 compelling attendance of, 738. 
 committal of debtor, for non-attendance, 739. 
 
 refusal to answer, 739. 
 unsatisfactory answers, 739. 
 officers of corporation, for non-attendance for, 740. 
 motion for, 740. 
 order for, 740. 
 contempt, committal for, 739-740. 
 costs, only, when allowed for, 735. 
 employees of debtor, when liable to be examined, 737. 
 
 compelling attendance of, 738. 
 former clerks of debtor, when liable to be examined, 737. 
 compelling attendance of, 738. 
 employees of debtors, when liable to be examined, 737. 
 compelling attendance for, 738. 
 how it may be conducted, 73(1-738. 
 judgment for payment of money, under, 740. 
 
 into Court, under, 741. 
 costs only, under, 740. 
 mode of conducting, 736, 738. 
 
 officers of corporation, when liable to examination, 736. 
 order for payment of money, under, 740. 
 
 into Court, under, 741. 
 costs only, under, 740. 
 
 proceedings for, 734-736 . 
 
 production of documents on, by third party, 737. 
 
 second, how obtained, 736. 
 
 solicitor of debtor, when liable to examination, 737. 
 
 third person, may be compelled to produce documents on, 737. 
 
 transferee Of debtor, when liable to examination, 737, 738. 
 
 when not to be taken by officer making order for, 910. 
 
 who liable to, 736, 737. 
 
 whom to be taken before, 734, 737. 
 
 EXAMINER. See Discovery— Spkcial Examinkb. 
 office of, not a public Court, 4H5, 486. 
 J. A. 
 
 76 
 
1202 
 
 INDEX. 
 
 EXECUTION. See Attachment of Deut — Attachment of Person- 
 Equitable ExEcnTioN — Sequestration. 
 
 advertisement, defective, does not invalidate sale under, 728. 
 
 of sale of lands under, 729, 730. 
 arrest, discharge from, when authorized, 734. 
 assistance, writ of, 705. 
 
 attachment, writ of, when it may issue, 710, 711. 
 bail, to charge, 727. 
 
 chattels, for specific delivery up of, 709, 710. 
 costs, for, stay of, pending appeal, 70(), 707. 
 
 when it may issue before revision, 919. 
 otfi.fa. lands, when not recoverable, 729. 
 to be indorsed by officer issuing, 725. 
 
 carrency of, 725. 
 
 ca. sa., 726. 
 date of, 725. 
 
 discharge of execution debtor from custody, when authorized, 784. 
 dower, writ of assignment of, form of, 709. 
 equitable, 747. See Equitable Execution. 
 
 interest in land, sale of, whan ordered, 791, 792. 
 
 expired writ, sale under, when void, 727. 
 _fieri facias, writ of, effect of, 704. 
 
 when it may issue, 706. 
 
 against Mutual Ins. Co., 706. 
 lands, of absconding debtor, acceleration of sale under, 728. 
 costs of, where money made under yi. fa. goods, 729. 
 time for sales under, in Algoma, 728. 
 
 Thunder Bay, 728. 
 goods, sale of, under, 727. 
 
 inventory of, to be delivered, 727. 
 *' goods on hand for want of buyers," return of, what to state, 727. 
 hih.fac. pons., effect of, 705. 
 inception of, what is, 728, 730. 
 
 includes "fieri facian, capias, sequestration," etc., 704. 
 indorsement required on, 722-725. 
 
 to levy, 724, 725. 
 infant, in favour of, money made under, to be paid into Court, 712, 713. 
 
 writ, how to be indorsed, 712, 713. 
 interests in land, saleable under, 791. 
 
 not saleable under, how reached, 791, 792. 
 
 order for sale, how made, 793. 
 
 irregularities in sale under, do not render it void, 728. 
 inventory of goods seized under, to be delivered to owner, 727. 
 judgmant in default of appearance, may issue on, forthwith, 606. 
 for payment of money, enforcing, 705, 706. 
 
INDEX. 
 
 1208 
 
 lENT ov Person— 
 ander, 728. 
 
 len authorized, 734. 
 ,d, 791, 792. 
 
 Mutual Ins. Co., 706 
 nation of sale under. 728. 
 
 ,y,728. 
 vrhatto state, 727. 
 
 I etc., 704. 
 
 , paid into Court, 712, 713. 
 1712,713. 
 
 Ued,79l.792. 
 
 jr sale, ho^ made, 79»- 
 
 Ivoid, 728. 
 
 Ired to owner, 727. 
 
 Leon, forthwith, 608. 
 
 1,705,706. 
 
 EXECUTION- Continued. 
 
 lands, notice of sale of, under, 729. 
 
 contents of, 729. 
 costs of, 729. 
 how to be published, 729. 
 irregularity in, effect of, 729, 730. 
 omibsion to publish, effect of, 729. 
 not to be sold under, until return of nulla bona, 728, 729. 
 sale of, under, time for, 727. 
 
 in Algoma, and Thunder Bay, 728. 
 without return of nulla bona, is not void, 729. 
 writ against, when it may issue, 707. 
 
 may not issue if judgment under $40 ; 707. 
 leave to issue, when necessary, 720, 721. 
 neglect to return to Sheriff after renewal, 222. 
 millabona, return of, required, before sale of lands, 728, 729. 
 
 omission of return of, not fatal, 729. 
 order, enforcing by, 707. 
 
 for, when necessary, 720, 721. 
 partners, against, 711, 712. 
 
 payment of money into Court, enforcing order for, 708. 
 pracipe for, to be filed, 722. 
 priority of, how settled, 233, 234. 
 
 over unregistered deed, 234. 
 possession, writ of, effect of, 705. 
 
 when it may issue, 708, 709. 
 
 poundage, and expenses of, may be levied, 723. 
 amount recoverable, 723. 
 Sheriff when entitled to, 723, 724. 
 purchaser under, priority of, 234. 
 recovery of land, judgment for, how enforced, 708, 709. 
 
 and costs, how enforced, 709. 
 renewal of, 477, 725, 726. 
 
 neglect to return after, effect of, 222. 
 proof of, 726. 
 
 withdrawal for, effect of, 222. 
 return of writ of, order for, 730, 731. 
 
 may issue on pracipe, 730, 731. 
 ca. sa., 727. 
 how to be nade, 730, 731. 
 
 sale of goods under, 727. 
 
 notice of, required, 727. 
 sale of lands under, time for, 727. 
 
 premature, void, 728. 
 stay of, effect of, 233. 
 
 ^Wll" 
 
x\ 
 
 
 1204 
 
 EXECUTION— Con^ni/grf. 
 
 INDEX. 
 
 stay of, on appeal to C. A., 82. 
 
 effect of, after levy, 82. 
 fiat for, 674, 077. 
 . I ., motion for, 677. 
 ,. _ security to be given. 670-672. 674-677. 
 
 ,, ,1 ; I when granted, 670-672. 
 
 , r '„■> refused, 674. ,, , ;, ,, , , 
 Sheriff's certificate as to, in niortgf ;e action, 222. 
 teste of, 725, 720. 
 
 ca. sa., 726, 727. . ,, • , j : > ,, 
 time for sale of goods, under, 727. ' ,, s ,, i ,- ; > 
 lands, under, 727. 
 
 by Sheriff of Algoma, 728. 
 
 Thunder Bay, 728. 
 within which it may issue, 720. 
 unregistered deed, priority of, as against, 2H4. 
 ven., ex, when it may issue, 704, 705. , 
 
 withdrawal of, for renewal, 222. 
 
 EXECUTORS. See Administkation — Peksonal. Rkprksentativh. 
 
 de soji tort, administration order when granted against, 9152, H'S'S. 
 estoppel of, 348. 
 
 jurisdiction of H. C. J. over, 11, 13. ^,, ,, ,,, 
 
 payment of legacy in full by, effect of > 34P ,,.;(.. .i.;, 
 
 EXHIBITS. ' 
 
 deposit of, when judgment reserve':.', j\): ' 
 
 in High Court case tried in C. C . t/an ssion of, 602. 
 marking at trial, 599. 
 transmission of, to Toronto, 474, 475. ^ 
 
 in cases tried in C. C 602. 
 withdrawal of, at trial, 599. ' 
 
 EXONKRETUR. See Bailable Phoceedings. 
 
 EXPERTS. 
 
 appointment of, by Court, 261. 
 
 i I: •/" 
 
 ■ Ai 
 
 .... . . , , ,, may be made ex parte, 262. 
 
 when not made before trial, 261. 
 assessors, Court may employ as, 262. , j ,,>„,• 
 cases in which appointed, 261. , i. . . ■ , . 
 
 costs of, when employed by Master, 261. 
 
 to qualify themselves to give evidence, 262. ,.,,,,,.i 
 Court may obtain assistance of, 261. 
 employed by Court, not examinable as witnesses, 201. 
 
INDEX. 
 
 1205 
 
 fi7'2. ti74-677. 
 
 E'S.PEB.TS— Continued. 
 
 ■i.'/i'.' 
 
 'I! I, /. ■/;M;i;)M 
 
 evidence of, as witnesses, 262. • ^ - • ■■ .,■ 
 
 conflictinfj!, as to foreign law, 202. ' ' ' ' ' ' 
 should be given vivtf race, 262. ' ' 
 
 not to be taken under commission, .')49. 
 weight to be attached to, 262. ' ' 
 
 lawof foreign country, proof by, 202. 
 
 Master cannot employ, 261. 
 
 reference to, under ss. 101, 102 : 202. ' i 
 
 order for, should be drawn up, 202. 
 
 relief, incase of nuisance, not stayed, till appointment of, 201. 
 
 report of, not conclusive, 202. 
 
 appeal from, 202. , . • , 
 
 witnesses, when they cannot call, 201-2. 
 
 on of, 002. 
 CO.. 002. 
 
 FALSE IMPRISONMENT. 
 
 action for, jury cannot be required to answer questions in, 84. 
 trial of, must be by jury, 84, 
 
 except by consent, 84. 
 
 FEE FUND. See SoiTOus Fee Fo.ND AcconxT. ' ■-" 
 
 FEES. See Deputy Cleuks of thk Oiiowx — Depoiv UKdisiinus— Local 
 Registraus— Tariff. ■., ..(,.,-■:,: •.. 
 
 imposed by Statute, 124. 125. 
 
 now included in tariff 124, 125. 
 
 FINAL ORDER. See MonTCAOE Actions. •'■" ' , 
 
 FIERI FACIAS. See Exkcotiox. / m ; .,.■,.>()'> 
 
 FIRM. See Pautneks— Partnership. 
 writof summons, how served on, 291). 
 
 FOLIO. , ^.,, ,„,;■•;',!! 
 
 means 100 words, 463. ,;„■! 
 
 FORECLOSURE. See Mortoaof. Actions. 
 
 FOREIGN COURT. 
 
 proceedings in, when restrained, 57, 
 
 FOREIGN JUDGMENT. 
 
 action on, 87. ' 
 
 pleadings in, H7. 
 defence to action on, 87. 
 
 when obtained in Quebec, 8S 
 
 ■ ■.••!■■ :■■; '■ "; 
 
 , ^Ui;;--T 
 
 f 
 
 
1206 
 
 INDEX. 
 
 FOREIGN JUDGMENT— C'on<j«M«d. 
 
 evidence, e£Fect of, as, 87. 
 
 fraud in obtaining, effect of, 87. 
 
 penalty, for, does not create debt in Ontario, 87. 
 
 principle on which enforced in Ontario, 87. 
 
 Quebec, obtained in, defence to, 88. 
 
 FOREIGNER. 
 
 notice in lieu of writ, when to be served on, 273, 302. 
 writ of summons, service of, on, when void, 274, 302. 
 
 regular if effected in Ontario, 274. 
 FORFEITURE. See Penalty. 
 
 jurisdiction of H. C. J. to relieve against, 21, 38. 
 lease, record of relief against, to be indorsed on, 22. 
 terras may be imposed, on relieving against, 38. 
 when relieved against, 21. 
 
 FORMS. 
 
 Accountant, declaration of, as to money in Court, 1065. 
 advertisement for creditors, J)78. 
 affidavit of service of writ, 984. 
 
 executor as to claims of creditors, 987. 
 justification of bail, 984. 
 
 surety in appeal bond, 1063. 
 landlord, to be let in to defend, 98.5. 
 on production, 985. 
 
 by corporation, 98<). 
 garnishee application, 988. 
 interpleader application, 989. 
 appeal bond, 1062. 
 appearance, 1012. 
 
 limiting defence in ejectinent, 1013. 
 new defendant, for, 1013. 
 to counter-claim, 1013. 
 petition of right, 1060. 
 appointment to be served under Rule 128 : 977. 
 attachment of debts, affidavit for order, 988. 
 bond in replevin action, 1061. 
 
 assignment of, 1061. 
 on appeal to Court of Appeal, 1062. 
 
 affidavit of justification, 106. 
 Privy Council, 1063. 
 certificate, of action being on Lower Scale, 1064. 
 result of trial, 1064. 
 taxation, 1064. 
 
;, 302. 
 
 4, 302. 
 
 cted in Ontario, 274. 
 
 8. 
 
 )n, 22. 
 38. 
 
 !ourt, 1065. 
 
 , <.t87. 
 
 .ond, 10fi3. 
 85. 
 
 1013. 
 
 977. 
 1^- 
 
 of justitication, 10(>. 
 1064. 
 
 INDEX. 
 
 1207 
 
 FORMS -Continued. 
 
 commiBsion to examine witnesses abroad, 1020. 
 oath of commisnioner, 1022. 
 clerk, 1022. 
 
 interpreter, 1022. 
 witneiis, 1022. 
 conditions of sale, 983. 
 
 Controverted Municipal Election proceedings, 817-827. 
 affidavit of, relator, 817. 
 
 justification, 818. 
 service of notice of motion, 820. 
 disclaimer, 821. 
 execution, 824, 826, 827. 
 fi. fa. for costs, 826, 827. 
 indorsement of verdict on issue, 822. 
 judgment in favor of relator, 822. 
 
 res])ondent, 822. 
 for costs, 82'^.. 
 mandamus to Sheriff, 825, 826, 
 corporation, 824. 
 order for trial of issue, 821. 
 
 leave to serve notice of motion, 820. 
 recognizance, 818. 
 
 verdict on issue, indorsement of, 822. 
 Debt Attachment Book, 1067. 
 declaration by Accountant, as to moneys in Court, 1065. 
 
 Clerk of County Court, as to moneys in Court, 1066. 
 
 Surrogate Court, as to moneys in Court, 1066. 
 demurrer, 1011. 
 indorsements, on writ of summons, 957-966. 
 
 character of parties, 964. 
 claims for equitable relief, of, 964, 
 
 966, 966. 
 mortgage actions, in, 965. 
 special, 963. 
 order adding parties, 971, 976. 
 interpleader, affidavit on motion for, 989. 
 judgment for administration, 1051. 
 
 accounts, 1052. 
 indgmentH in default of appearance. ■ • , 
 
 final for liquidated demand, 1042. i ■ 
 
 recovery of land, 1042. 
 after assessment of damages, 1014. 
 interlocutory, for unliquidated demand, 1043. 
 after appearance. 
 
 under linle 739 . 1044 
 
1208 
 
 FO'RM.S— Continued. 
 
 INDKX. 
 
 jadgments after trial. ' 
 
 byCourt, without jury, 1044. 
 Judge, without jury, 1044-1045. 
 
 with jury, 1045. 
 Referee, 1045. 
 
 of questions of account, 1045. 
 in default of defence. 
 
 for recovery of Lind, 1 04." . 
 
 and damages, 104H. 
 after assessment of damages, 1044. 
 on confeuion of action, 
 
 for recovery of land, 1043. 
 upon motion, general form of, 104fi. 
 after trial of issue, 1048. 
 
 in County Court, 1047. 
 pursuant to conditional order, 1046. 
 on confension, or discontinuance. 
 
 for defendant, for costs, on discontinuance, 1047. 
 plaintiff, for costs, on confession of defence, 1047. 
 
 on acceptance of money paid into Court, 
 
 1048. 
 on prcBcipe, in mortgage actions. 
 
 for foreclosure, with reference, 1048. 
 
 without reference, 1049. 
 sale, with reference, 1048. 
 
 without reference, 1049. 
 redemption, with reference, 1050. 
 In partition action, 1051. 
 judgments, return of, by local officers, 10C5. 
 municipal elections, proceedings in. See Controverted MtrNiciPAi; 
 
 Elections. 
 notice, disputing amount, 969. 
 
 in lieu of statement of claim, 969. 
 limiting defence, 969. 
 
 of acceptance of money paid into Court, 971. 
 appeal, 979. 
 appearance, 968. 
 confession of defence, 970. 
 
 cross-examination of deponents at trial, on affidavits, 975. 
 discontinuance, 975. 
 entry of demurrer for argument, 974. 
 motion, to Court, 966. 
 
 in Chambers, 966-968. 
 
 for administration, 968. 
 guardianship, 968. 
 
 >-'--'-M 
 
INOKX. 
 
 1209 
 
 OVEBTED MuNICIPAIi 
 
 on affidavits, 1)75. 
 
 F0B,M8— Continued. ', ' h. ' . . 
 
 notice, of payment into Court, !(71. • ,, ,,,;., ,.i 
 
 renewal of writ of execution, !»7<i. 
 trial, 974. 
 to admit, !)7;!. 
 
 creditor of allowance of claim, !(78. 
 
 that cheques may be obtained, i)7i(. 
 to produce, !)78. 
 prove claim, 979. 
 defendant, to conduct sale, 97''. 
 incumbrancers added in M. O., 977. 
 inspect, 972, 
 produce, 972, 97H. 
 third party, 970. 
 
 indorsement thereon, 971. 
 order, general form, 1023. 
 
 allowing service out of jurisdiction, 1024. 
 for arrest, 1040. 
 
 attachment of debts, 1032. 
 commission to e.xamine witnesses, 1030. 
 discharfjing order, on application of third party, 1029. 
 dismissal of action for want of prosecution, 1029. 
 
 motion, 1041. 
 examination of witnesses before trial, 1031. 
 interpleader, 1034-103K. 
 judgment under little 739 : 1025. 
 
 leave to defend under little 739, unconditionally, 1020. 
 
 on terms, 102G. 
 amend, 1027. 
 
 names of partners, 1027. 
 
 particulars, 102H. 
 
 production of documents, 1029, 1030. 
 
 reference under s. 101 to Referee, 1031. 
 8. 102 to Referee, 1031. 
 
 renewal of summons, 102.5. 
 
 replevin, 1039. 
 
 service out of jurisdiction, 1023. 
 
 substituted service, 1024. • . 
 
 taxation of solicitor's bill, 1033. 
 
 time, 1025. 
 
 trial of action in C. C, 1034. • 
 garnishee, attaching debts, 1032. 
 
 absolute, to pay over, 1033. 
 of certiorari, 1040, 1041. 
 
 prohibition, 1041. 
 
 withernam, 1039. ' 
 

 i;f 
 
 1210 
 
 INDEX. 
 
 T0VM9>— Continued. 
 
 Petition of rj«ht. 105'.). 
 
 appearance to, 1000. 
 
 oerliflcate of judgment for i)etitioner, lOCl. 
 notice to appear, 10(50. 
 prayer to be indorsed, lOGO. 
 pleadin^B, 990-1010. 
 pnecipe to amend Hunnnons, 1012. 
 renew HiimmonB, 1012. 
 enter appearance, 1012. 
 
 for defendant added by order of revivor, 
 
 lOlH. 
 under ;;«?(; .Hli'^lOia. 
 in ejectment, and limiting defence, iOli). 
 to counter-claim, 1013. 
 appeal, lOl.'). 
 cause for argument, 1014. 
 
 trial, 1015. 
 demurrer for argument, 1014. 
 special caae for argument, 1014. 
 for direction to Bank, lOlB. 
 cheque, 1018. 
 search, 1014. 
 
 commission to examine witnesses, 1015. 
 writ of /(.>., lOlG. 
 
 hub. Corp. lid tent., 1015. 
 hah. fac.ponn., 1017. 
 delivery of cliattels, 1017. 
 attachment, 1017. 
 possession of lands, 1017. 
 sequestration, lOKi. 
 venditioni exponas, 1010. 
 reply, 995, 998, 1004, lOOG, 1009. 
 report, in administration suit, 980. 
 
 schedule to, 982. 
 on sale, 983. 
 return of judgments by Local Officers, 1065. 
 sale, notice to defendant to conduct in mortgage action , 97S. 
 satisfaction piece, 10C5. 
 special case, 1011. 
 
 statement of claim for administration, 991, 992. 
 assault, 1004, 
 
 bill of exchange, 994, 997, 998. 
 damages against liy. Co., 1005. 
 
 del credere agents, 993. 
 debt, 990. 
 
INPEX. 
 
 1211 
 
 r,l061. 
 
 order of revivor, 
 
 1018. 
 
 ,ler/iu/.eH'i'», 1013. 
 
 int! defence, iOli). 
 
 itioiMlVd. 
 
 '.»y8. 
 1005. 
 •re agents, 993. 
 
 FOV.UH—Contmued. 
 
 settlement of claim for falflo impriHonmont, 999. 
 fraud, 1000. 
 fjnarantt't>, 1002. 
 negli«once, 1008, lOO.'i. 
 promiHHory note, 99('. 
 recovery of land, 1007, 1009. 
 
 by landlord against tenant, 
 1007. 
 trespass to land, 1010. 
 statement of defence in administration action, 991, 992. 
 
 action against (/(■/ crMcre agents, WM. 
 
 acceptors of bill, 99;"), 9',I7. 
 for assault, 1004. 
 
 false imprisonment, 1000. 
 fraud, 1001. 
 negligence, 1008, lOOn. 
 trespass to land, 1010. 
 
 and counter-claim, in ejectment, 1008. 
 subpoenas ad test, 1019. 
 
 at assizes, 1020. 
 duceK tecum, 1019. 
 
 at assizes, 1020. 
 tariff of fees of solicitors, 1070. 
 disbursements, 1090. 
 Sheriffs fees in civil matters, 1100. 
 warrant for arrest of witness, 10.59. 
 Writs of Kxecution. 
 
 assignment of dower, 1058. 
 attachnTent for contempt, 10.56. 
 capias ad satinfacienditm, 10>5(). 
 
 on an order for payment of money, 1056. 
 
 and costs, 1056. 
 costs only, 1067. 
 fieri facias for damages and costs, 1053. 
 costs, 10.54. 
 indorsements on, 1054. 
 for delivery of chattels, 1055. 
 
 recovery of assessed value of chattels, 1057. 
 possession, 1055. 
 sequestration, 1057, 
 venditio7ii exponast, 1054. 
 writ of habeas corpus ad test, 1023. 
 summons, 955. 
 
 for service out of Ontario, 957. 
 
 notice of, for service out of Ontario, 956-7. 
 
1212 
 
 INDEX. 
 
 ,:..J:. 
 
 FRAUD. See Wilful Neglect ano Default. 
 
 " actual," 11. 
 
 allegations of, how made in pleadings, 1'2. 
 
 charged, but not proved, 12. 
 
 costs, when charged but not proved, 12. 
 
 jurisdiction of High Court in cases of, 11-12. 
 
 " legal," 11. 
 
 "moral," 11. 
 
 FllAUDULENT CONVEYANCES. 
 
 lands, of, summary application to set aside, 790-79'2. 
 
 preferences by insolvents, 789, 790. 
 
 R. R. O. c. 124, when void under, 789. 
 
 Statuteof 13 Elizabeth, c. 5, when voii uider, 788. 
 
 summary application to set aside, 144, 788-793. 
 
 inquiries into, 788, 789, 792. 
 
 can be made only as to land, 790. 
 
 lis pendens may be registered, 793. 
 
 to wife, as appointee of husband, 789. 
 
 FURTHER DIRECTIONS. 
 
 administration action, when dispensed with in, 770, 771. 
 
 aftidavits, when they may be read on, .540. 
 
 appeal from judgment on, (54(5. 
 
 costs, evidence admissible on question of, 540, 645, 046. 
 
 court, on, may refuse to act on report, 046. 
 
 evideroe which may be used on, 540, 045, 040. • 
 
 judgment on, appeal from, 71, 72. 
 
 /ocKs stawJj of plaintiff may be disputed on, 176, 
 
 reservation of, 045. 
 
 setting down for hearing on, 045. , ..-. 
 
 ;•"!.'. .'1. I 
 
 G 
 
 GARNISHEE. See ATr.\cH.\ii';Nr oi- Debts— Forms. 
 
 GOODS. See Execution. 
 
 GUARDIAN. See Gu.^udian ad lukm — Infant. 
 
 appointment of, procedure for, 220, 221. 
 see Receivers. 
 
 GUARDIAN AB LITEM. See Official Guardian, 
 
 appointment of, how made, 378, 379. 
 
 for infant defendants, 293-295. 
 ' '' lunatic defendants, 375-377. 
 
,, .> tV.^1.1' 
 
 INDEX. 
 
 1213 
 
 Gl^\RDIAT!i AD LITEM— Continued. .. ;riM;'.;, 
 
 irregular appointment of, set aside, 379. , , , 
 
 lunatics, where they may defend by, 374.37r). 
 
 motion for appointment of, how made, 295. . , , 
 
 GUARANTEE COMPANY. 
 
 bond of, may be accepted as security for Committee of Lunatic, or 
 Receiver, 21!). 
 
 H 
 
 ) 
 
 HABEAS CORPUS. , , 
 
 Chambers, Judge in, may gi*ant, 524. • • r ' ■ 
 
 form of writ, arf test, 1023. ' 
 
 HEARING. See Further Directions — Motion ton Juu<iMKsr — Tkul. 
 
 HEIR. See Administration. , ,, , , it, > 
 
 HIGH COURT OF JUSTICE. ."'■ . ■ v ;:. ) 
 
 accident, jurisdiction of, to relieve against, II, 12. 
 account, jurisdiction of, in matters of, 11, 13, 11. ' -vi i i.i.iii . 
 -ooion for less than £10, not entertained by, 10. 
 administrators, jurisdiction of, as to, 11-13. 
 
 to appoint, 331, 332. 
 order of , appointing, form of , 332. ' • 
 
 .'v;' ; ' copy of, to be delivered to Sur- 
 
 rogate Clerk, 332. 
 alimony, jurisdiction in, 23. 
 
 interim, may be granted, 23. iri.) .'! ' i ,mv;m. 
 
 judgment for, may be registered, 23. ; Vk ia',i-i7"! 
 
 permanent, when granted, 23. 
 amendments, power of, to allow at any time, 45'.(. 
 appeal to, under " The Act to prerent trenpanii to Public I.diid.s," 'J',K 
 assizes, holding of, how regulated, 90-'.)2. 
 when to be held, 5)1, '.)2. 
 
 Judge holding, may sit in Chamber.s, 32. .i.', . i,. .(,)!- f( 
 awards, jurisdiction of, as to, 11-14. 
 bail in criminal case, jurisdiction as to, 21. 
 breach of covenant, forfeiture for, when relieved, 21, 38. 
 business of, how to be distributed, 70. 
 
 to be taken by single Judge, 70. . ;,, t;. :ii )• ' li 
 camera, hearing in, may be ordered, 71. 
 cause list, at weekly sittings, 204. 
 assizes, 5*J1. 
 Divisional Court sittings, 267, 2()H. 
 
1214 
 
 INDEX. 
 
 HIGH COURT OF JUSTICE— Conthmed. 
 
 chambers, provision for sittings in, 31. 
 
 jurisdiction of Judge of, in, 31. 
 Chancery Division of, 4, 5. 
 Common Pleas Division of, 4, 5. 
 compensation to trustees and personal representatives, jurisdiction 
 
 to allow, 74. 
 compromise of action, power to enforce, 4G. 
 
 consent order, or judgment, of , not appealable without leave, 74, TS. 
 
 what is, 74. 
 
 conflict between law and equity, rule of decision in case of, 66, 67. 
 contingent rights. Court may refuse to adjudicate on, 46. 
 continuation of former Courts, is, 30, 130. 
 
 contract, stipulations in not of essence, effect to be given to, 61. 
 costs, discretion of, as to, 891-893. 
 
 order of, as to, when appealable, 74, 75. 
 
 not appealable, 73, 74, 75. 
 County Court action may be transferred to, 126. 
 Court of Record, 10. 
 
 Judges to have rights of, 31. 
 criminal jurisdiction of, 30. 
 
 Crown cases reserved, any Division is Court for, 80. 
 declaratory judgment, or order, may be pronounced by, 39. 
 discretion as to costs, when not appealable, 73, 74, 75. 
 
 orders made in exercise of, when appealable, 75. 
 distribution of business, how regulated 70. 
 Division Court suit, may be transferred to, 126. 
 
 see Division Court. 
 Division of Supreme Cou't, is a, 4. 
 Divisions of, 4. 
 
 criminal jurisdiction of, 11. 
 presidents of, 5. 
 Divisional Courts of, 7'2-73. See Divisional Coobt. 
 
 may refer questions to Official Referees, 96. 
 sittings of, when to beheld, 69. 
 Dominion Statute, validity of, jurisdiction to pronounce on, 38. 
 
 Attorney Generals to be notified, 38, 68. 
 dower, jurisdiction of, as to, 11, 14. See Dower. 
 equitable rights, to be given effect to, by, 37-40. 
 equity, rules of decision of, in, 18. 
 
 jurisdiction of, in, 11-20. 
 evidence, further, power to admit on appeal, 64P 547. 
 when admissible without leave, .>47. 
 exchequer jurisdiction of , 21. 
 executors, jurisdiction of, as to, 11, 13. 
 
■68, jurisdiction 
 
 it leave. 74, 75. 
 
 ise of, 66, 67. 
 .46. 
 
 iven 
 
 to, 51. 
 
 I by, 39. 
 6. 
 ible, 75. 
 
 T. 
 
 alRe{<5ree8,96. 
 
 69. 
 
 nounce on, 3B. 
 
 ed, 38, 68. 
 
 547. 
 .47. 
 
 INDEX. 
 
 HIGH COURT OF JUSTIGE-Continued. 
 
 1216 
 
 forfeiture, jurisdiction of, to relieve against, 21, 88. 
 
 of recognizance of bail in criminal case, not relieved 
 against, 21. 
 
 fraud, jurisdiction of, to relieve against, 11-12. 
 general jurisdiction of, 30. 
 guardians of infants, jurisdiction over, 30. 
 hearing in camera, may be ordered by, 58, 71. 
 idiots, jurisdiction of, as to, 11, 15. 
 
 infants, jurisdiction of, as to, 11, 15, 26, 29, 30. Sec Infant. 
 settlements by. may be authorized, 26, 27. 
 evidence required as to, 27. 
 effect of sanction of, 27. 
 injunction, jurisdiction to grant, 52. 
 when granted, 54, 59. 
 
 Judges of Court of Appeal, may act as Judges of, 9. 
 Judges of, 5. 
 
 death, or absence of, 7. 
 
 disqualification for sitting in Divisional Court, 73. 
 
 ex otJicio Judges of Court of Appeal, 6. 
 
 may sit in any Divisional Court, 72, 73. 
 
 precedence of, 6. 
 
 resignation of, tt. 
 
 rights and powers of, 31. 
 
 sitting singly, duty of, 71. 
 
 constitutes a Court of, 71. 
 
 to arrange for proper transaction of business of, 73. 
 holding Divisional Courts, 73. 
 
 transfer of, to another Division, 6. 
 
 judgment, declaratory, may be pronounced by, .S9. 
 delivery of, after resignation, G. 
 
 jurisdiction of, 10-30. 
 
 means territorial jurisdiction, 303. 
 
 vested in, to bo exercised in name of Court, 32. 
 
 according to Act, and llule$, 33. 
 
 lunatics, jurisdiction of, as to, 11, 15, 29. 
 viandamm, jurisdiction to grant, 52. 
 
 when granted, 53, 54. 
 marshall and clerk of assize to attend sittings of, for trials, 140-142. 
 mortgages, jurisdiction of, as to, 11-14. 
 multiplicity of suits, jurisdiction to prevent, 11, 17, 45. 
 oificerB of, power to regulate duties of, 108, 109. 
 
 appointment of, how made, 108. 
 
 distribution of business among, 109. 
 
1216 
 
 INDEX. 
 
 HIGH COURT OF JUSTICE— Conti7iued. 
 
 officers of, oath to be tpken by, 109. 
 ^ See Officeus of Court. 
 
 Official Referee, powers of H. C. J. as to, 95-101. 
 references to, 95, 96. 
 
 for trial, 98. 
 
 order, declaratory, may be pronounced by, 39. 
 See Orders. 
 
 partnerships, jurisdiction of, as to, 11, 18. 
 
 patents, cancellation, and issue, of, may decree, 11, IH. 
 
 for invention, jurisdiction of, as to, 18. 
 partition, jurisdiction in, 22, 30. 
 penalty, jurisdiction of, to relieve aj^ainst, 21, 38. 
 personal representative, jurisdiction to appoint, 331-333. 
 president of, who to be, 5. 
 
 proceedings to be taken in Division to which action is assigned, 71. 
 Provincial Statute, validity of, jurisdiction to pronounce on, 38. 
 
 Attorney-General to be notified, 38, 08. 
 Queen's Bench Division of, 4, 5. 
 receiver, jurisdiction to appoint, 52. See Reckiveh. 
 
 when appointed, 52, 59-62. 
 Referees, powers as to proceedings before, 101. 
 reports of Official Referees, powers of, as to, 101. 
 representative of deceased party, when it may appoint, 328-9. 
 
 discretion in appointing, 329. 
 ., . , Master in Chambers may appoint, 
 
 331. 
 ■ ' " '. . may proceed without, 328, 329. 
 
 ' ' ' ' ' powers of, 331. 
 
 security not required to be given 
 ■■ '■ ■ ;•■ by, 331. 
 
 when dispensed with, 329-330. 
 
 retired Judge, may act as Judge of, 7. 
 revenue, jurisdiction in matters of, 21. 
 Jiules of Court, power to make, 105. 
 
 decision of , in equity cases, 18. 
 settlements on marriage by infants, jurisdiction as to, 26, 27. 
 
 effect of sanction of, 27. 
 single Judge, business to be taken by, 71. 
 . H'i'f lii.Mi duty of, as to, 71. 
 
 constitutes a Court, 71. 
 sittings of, 69. 
 
 for trials, 90-92, 264. 
 
 when to be held, 91, 92. 
 marshall and clerk of assize to attend, 140. 
 
INDEX. 
 
 1217 
 
 18. 
 
 1-333. 
 
 ,n ia assigned, 71. 
 
 nounce on, 38. 
 
 ;o be notified, 38, (38. 
 
 BU. 
 
 ppoint, 328-9. 
 ppointinR, 329. 
 jnbers may appoint, 
 331. 
 
 vithout, 328, 329. 
 Required to be given 
 3d with, 329-330. 
 
 nas to, 26,27. 
 7. 
 
 o, 71. 
 
 17 
 
 HIGH COURT OF JUSTICE— Continued. 
 
 sittings of, vacation, in, 204. 
 weekly, 203, 2(54. 
 special case, jurisdiction as to, 20, 27. 
 
 petition, questions stated by, 2H. 
 
 parties to, 28. 
 
 specific performance, jurisdiction of, as to, 11, 10. 
 8tiv*-,'-+^s, validity of, jurisdiction to determine, 38, 08. 
 stay of prcoeedings, jurisdiction as to, 42, 43, 44. 
 tariffsof costs in, lOI)!), 1090, 1100. 
 Terms, how far abolished in, (58, 09. 
 testamentary matters, jurisdiction as to, 28, 29. 
 trials, sittings for, 204. 
 trusts, jurisdiction of, as to, 11-13. 
 vacations of, 09. 
 
 sittings in, 204, 205. 
 
 vesting order, jurisdiction to grant, 24, 25. 
 effect of, 24, 25. 
 when refused, 24. 
 
 waste, staying, jurisdiction of, as to, 11, 15-10. 
 weekly sittings of, 203, 204. 
 
 order of business at, 203, 264. 
 wills, jurisdiction as to, 28, 29. 
 
 HIGHER SCALE. 
 
 fees of Court according to, where payable in actions brought under 
 Lower Scale, 927. 
 paid according to, may be allowed though Lower Scale 
 applicable, 927. 
 
 HUSBAND AND WIFE. 
 
 actions by, or against, what causes may be joined, 384. 
 documents in joint custody of, production of, 505. 
 evidence of, against each other, 337. 
 execution, leave to issue, on judgment in favour of wife, 721. 
 
 against, on judgment against his wife, 721. 
 
 husband, may sue his wife, 337. 
 wife, may sue her husband, 337. 
 
 remedy of, for separate property, 337. 
 
 HOLIDAYS. See Timk— Vacation. 
 .I.A. 
 
 77 
 
 ;nd,140. 
 
1218 
 
 INDRX. 
 
 Ji- 
 
 Ri 
 
 I 
 
 IDIOTS. 
 
 jurisdiction of H. C. J. as to, 11, 15. 
 
 IMPERIAL STATUTES. 
 
 Acts held to to be in force, li), 29. 
 not to be in force, 19, 20. 
 attorneys, (22 Geo. 3, c. 46) in force in Ontario, 20. 
 brawling in church (1 W. & M., c. 18) in force in Ontario, 20. 
 ecclesiastical corporations, as to, 20. 
 equitable rights relating to, how far in force, 18, 19. 
 how far in force in Ontario, 19, 20. 
 
 Lord Lyndhurst's Act (5 * 6 W. 4, c. 54) not in force, 19. 
 Lotteries Act, (12 Geo. 2, c. 28) in force in Ontario, 20. 
 Marriage Act. (26 Geo. 2, c. 33) whether in force in Ontario, 20. 
 may be made applicable by Imperial Parliament to Canada, 19. 
 Mortmain Act, (9 Geo. 2, c. 36) in force in Ontario, 19. 
 ^iiillum Tinnpus Act (9 Geo. 3, c. 16) in force in Ontario, 20. 
 offices, buying and selling, (5 & Ed. 6, c. 16) in force in Ontario, 20. 
 property and civil rights, relating to, how far in force, 19. 
 repeal of, in England, effect of, 20. 
 
 Ontario, effect of, 20. 
 Thellusson Act (39 * 40 Geo. 3, c. 9) is in force in Ontario, 19. 
 Statute of Frauds (29 C-ar. 2, c. 3) in force, 20. 
 
 Limitations (21 Jac. 1, c. 16) in foi'ce, 20. 
 
 14 Geo. 3, c. 78, in force in Ontario, 19. 
 
 26 Geo. 3, c. 86, s. 2, in force, 20. 
 
 11 Geo. 4 A 1 W. 4, c. 60, in force in Ontario, 19. 
 Trustee Relief Acts (10 & 11 Vict., c. 96; 13 & 14 Vict., c. 60; 
 15 & 16 Vict., c. 55) in force in Onturio, 19. 
 
 IMPERTINENCE. See Scani>al. 
 
 IMPROVEMENTS. 
 
 after action, not allowed, 170,171. 
 
 ' exception, 171. i 
 
 agents, when allowed for, 169. 
 allotment of, on partition, 780. 
 clearing land, cost of, allowed as, 171. 
 committee of lunatic, when allowed for, 170. 
 covenant in rectorial lease to pay for, effect of, 172. 
 mistake of title, made under, when allowed, 170. 
 mortgagee, when allowed for, 170, 171. 
 personal representative, when allowed for, 170. 
 persons in possession under void deed, right of, to, 169. 
 
INDEX. 
 
 1219 
 
 IMPROVEMENTS-CoHf/nH(;rf. 
 
 purchafior, when allowed for, 170. 
 receiver, when allowed for, 170. 
 solicitor, when allowed for, 1(59. 
 tenants in common, wlien allowed for, 16i). 
 
 at will, not allowed for, 169. 
 
 for life, when allowed for, 109. 
 trustees, when allowed for, 109-171. 
 vendee under voidable deed, when entitled to, 227. 
 wron^-doers, when not allowed for, 170. 
 
 INCUMBRANCE. See Mortgaoe— Mortoaoe Actions— Sales iiy tuk 
 Court. 
 
 redeemed, interest payable on, 228. 
 
 INCUMBRANCERS. See Moutoaoe Actions. ' 
 
 disclaiming, not entitled to costs, 225. 
 disputes between, how determined, 234. 
 foreclosure of, when opened, 2i\'>. 
 priorities of, how settled, 233, 234. 
 redemption by, 235, 
 sale, right of, to, 389. 
 
 subsequent, may be added as parties in M. O., 222, 223. 
 redeeming out of order, effect of, 235. 
 
 may foreclose subsequent parties, 235. 
 
 INDORSEMENT. See Foums. 
 
 address of plaintiff, or solicitor, on writs, 278, 279. 
 
 documents by which proceedings 
 
 commenced, 279, 
 
 not necessary on subsequent jjroceed- 
 
 ings, 279. 
 forms of. See Fokms. 
 
 of writ of summons. See Wuit of Summons. 
 
 INFANT. See Administration — Guardian ad litem — Officiai. Guardian. 
 access to, Court may make order as to, 64. 
 
 mother may apply for, ('A. 
 adultery of mother of, debars her ri^ht to order for access to, or cus- 
 tody of, 65. 
 Common Law rule of, as to custody of, 63. 
 compromise, cannot be forced on, 334. 
 consent of, to sale of land, when necessary, 786. 
 conveyance by, of lands, evidence required on settlement of, 787. 
 
 execution of, 782. 
 costs of application for custody of, 64. 
 
1120 
 
 INDEX. 
 
 INFANT— Cojitiwm/. 
 
 custody of, jurisdiction of Court as to, ()3, (54, (i5. 
 
 Master in Oliatnbers lias no jurisdiction over. 1 1'J. 
 day to show cause, when to be reserved in judgment, Gl'^i. 
 death of father, mother to be guardian of. Bo. 
 debts of ancestor, inquiry as to wlien sale ordered, 784. 
 defendant, defends by guardian, 3;W. 
 discretion of Court, on application for custody of, 65. 
 dismissal of action of, for want of next friend, 333, 334. 
 disposition of land of, contrary to will, nof. authorized, 782. 
 dower in land, of, bar of, 78'2. 
 education of, jurisdiction of Court as to, 15, <)3, (54. 
 Equity, rule of, as to custody of, G3. 
 estate of, sale may be ordered of, 15. 
 
 See infra settled estates, 
 evidence on application to sell lands of, 78(5, 787. 
 examination of, wlien required on application for sale, 7H('.. 
 how taken on application for sale 78(5-787. 
 witness on application to sell lands of, 787. 
 father, right of, to control over, (53, (55. 
 
 how forfeited, 63, 64. 
 statutory limitation of, (it. 
 duty of, to maintain, 784. 
 
 guardian, of person, and estate of, 15, (55, 66. 
 accounts of, 784, 785. 
 appointed by father, (55, 6(5. 
 appointment of, by Court, 785. 
 
 procedure for, '220-221. 
 jurisdiction of, II. C. J. over, 30. 
 lease by, how made, 785, 78(5. 
 mother, when she may appoint, 66. 
 opposed application to appoint, Master in ChamberB 
 
 cainiot hear, 14;!. 
 security required frohi, 785. 
 Surrogate Court may appoint, 785. 
 testamentary, jurisdiction of H. C. J. over, 15. 
 guardian ad litem for, how appointed, 203-295. 
 
 in M. O., how appointed, 377. 
 habeas corpim for custody of, 03. 
 
 evidence on application for, 65. 
 illegitimate, custody of, 65. 
 
 inquiry whether suit for benefit of, may be ordered, 334. 
 judgments against, in Chambers, to be entered, 651. 
 
 service of, on, how to be made, 377. 
 jurisdiction of II. C. J. as to, 11, 15, 26, 2'.), 30. 
 
INDEX. 
 
 1221 
 
 Master in ChamberH 
 
 INFANT— ContinMed. 
 
 lease of land of, application for .'ow made, 781. 
 
 by fiuardian, 785, 780. 
 maintenance of, jiiriHdietion of H. C. J. as to, 15. 
 Court may make order for, (55. 
 corpus of fund not applied for, 781. 
 
 unless necessary, 7H4. 
 marriage of female ward of Court, 784. 
 
 settlement of f)roperty on, 7n4. 
 settlement by, may be authorized by II. C. ,7., '>{',. 
 effect of sanction of Court to, "27. 
 moneys of, payment into Court, not to be dispensed witii, without 
 
 notice to Official Guardian, ."17. 
 mortgage of, land of, application for, how made, 781. 
 
 Official Guardian to see to payment of, 253. 
 mother, guilty of adultery, disentitled to order for access to, or cus- 
 tody of, ()5. 
 application by, for custody of, 64, G5. 
 may apply in her own name re custody of, 05. 
 not bound to maintain, 784. 
 right of, to control over, (i4. 
 
 next friend of, consent of, to act necessary, 338. 
 costs, liability of, for, iiHi. 
 
 indemnity against, H;54. 
 death of. H;J4. 
 removal of, 3;}H, :<.')4. 
 
 should not take proceedings after infancy ceases, 384. 
 who may be, 838, 
 
 order for sale of estate of. to be entered, 051 . 
 
 personal representative, not liable to account as, 848. 
 
 person of, jurisdiction of H. C. J. as to, l.'i. 
 
 plaintiff, sues by next friend, 338. 
 
 proceeds of land of, continue realty, 782. 
 
 production of, when required on a))plication for sale, 780. 
 
 receiver, when appointed to estate of, 215. 
 
 religion of, father's right to decide, 05, 00. 
 
 religious education of, ()5, (iO. 
 
 removal of, from jurisdiction by guardian, when a contempt, 785. 
 
 sale of estate of, order for, to bs entered, 520, 
 
 land of, application for how made, 781, 782. 
 
 Official Guardian to be notilied, 781. 
 
 consent to, when necessary, 780. 
 
 contrary to disposition by deed or will, not authorized, 
 
 782. 
 
 conveyance on, execution of, 7S'2. 
 
l-l 
 
 i i 
 
 1222 
 
 INDEX. 
 
 !■■■ 
 
 1^ 
 
 I 
 
 mFA^T— Continued. 
 
 sale of land of, examination, to be annexed to, 78(5. 
 Master in Chambers may order, 784. 
 not ordered in administration action, 7K i. 
 petition for, how entitled, 781. 
 
 presented, 783. 
 what to state, 783. 
 proceeds not to be paid to {guardian, 7H 1 
 
 to be paid into Court, 781. 
 when it may be ordered, 781-784. 
 
 service of writ on, how effected, 2!l3, '2\)4. 
 
 personal, wiien necessary, 2'M. 
 proceedings on, in M. O., 377. 
 
 settled estates of, 782. 
 
 application respectins^, how made, 142, 783. 
 jurisdiction of 11. C. J. as to, 782-3. 
 lease of, may be ordered, 2(1. 
 
 Master in Chambers cannot order lease, or sale of, 
 
 142. 
 sale of, may be ordered, 20, 
 
 proceedinf^s for, how served, 2('). 
 settlements by, 2(5, 27. 
 
 effect of sanction of Court to, 27. 
 
 Master in Chambers cannot sanction, 142. 
 
 special case, when interested, 26. 
 how served on, 26. 
 
 Master in Chambers cannot entertain, 142. 
 party to, 533. 
 
 taxes, on land held in mortgage by Accountant for. Official Guardian 
 
 to see to payment of, 253. 
 testamentary guardian of, jurisdiction of H. C. J. over. 15. 
 trustee, form of judgment against, 348. 
 ward of Court, how made, 15. 
 
 male, marrying without consent, cannot be compelled to settle 
 his estate, 783. 
 witnesses, may be ordered to attend for examination on applica- 
 tions respecting custody of, <i5. 
 in support of application for sale, to be examined rivd voce, 
 
 787. 
 writ of summons, service of, how effected on, 2!)3, 2i)4. 
 
 INFORMATION. 
 
 quo warranto, in nature of, when necessary, 800. 
 
 leave to tile when required, 809. 
 
 :h-: 
 
INDEX. 
 
 1228 
 
 oil, T*^l- 
 
 iii,7^<4 
 I. 
 
 laile, 142, 7B8. 
 
 order lei>.«e, or sale of, 
 14'2. 
 
 served, 'i*'- 
 27. 
 
 anction. 
 
 142. 
 
 rtaiii, 142. 
 
 nt for. Official Guardian 
 
 C. J. over. 1">. 
 
 ,ot be compelled to settle 
 
 examination on appHca- 
 to be examined t>it;rfr«r^ 
 
 787. 
 
 Ml, 2'.t3, 294. 
 
 809. 
 ^en required, 80'.>. 
 
 INJUNCTION. See Htayino Pu(ici;k.I)IN(ih. 
 
 action for, when it lies afjainst absent defendant, wr>. 
 arbitrator, restrained by, M. 
 asBeta, against, removal of, H47. 
 breach of, imprisonment for, .5.'>. 
 camera, motion for, may be lieard in, M. 
 contempt of, .').'). 
 
 threatened, restrained by, .17. 
 clubs, against, to prevent ejection of member, .')7. 
 damat»e9, may be awarded in lien of, ,58, r)\}. (i'i. 
 plaintiff, when not bound to accept, (Vi. 
 undertakint» as to, on obtainiuf,', ">!), 872. 
 enforcing, 872. 
 defendant may apply for, (U. 
 delay, when a bar to grantiiifj, .IS. 
 discretion of Court, as to granting, .IS. 
 disobeying, .55, 5!). 
 
 distress by landlord, restrained by, 58. 
 enforcing, 59. 
 
 ex parte, may be granted, 872. 
 foreign Court, party when restrained from proceeding in, .'i7 
 
 sovereign, not restrained from removing property. 57. 
 foreigner, when granted against, 57. 
 imprisonment for breach of, 55. 
 injury threatened, restrained by, 57. 
 interlocutory, 50. 
 
 Local .Judge may grant, 125. 
 
 not continued hy prnvipe judgment, iil4. 
 
 when granted, 5C. 
 
 jurisdiction of H. C. .1. to grant, .52, 54-9. 
 libels, publication of, restrained by, 57. 
 Local Judge, may grant, 125. 
 notice of, may be given by telegram, 59. 
 
 action, not necessary when claimed, 68. 
 order of, effect of, 870. 
 
 preservation of property, pendf.nte lite by, 870-872. 
 proceedings in foreign Court, wlien restrained by, 57. 
 
 before justices when restrained by, 5S. 
 property, preservation of, 57, 58. 
 
 pending appeal, 58. 
 
 receiver, appointment of, operates as, 214. 
 
 suspending, pleading appeal, (173. 
 
 trade mark, infringement of, restrained by, 58 
 
 trespass, to restrain, 55, 58. 
 
 undertaking as to damages, when required in, 59, 872. 
 
; i.' jmsisMiJs 
 
 1224 
 
 INJUNCTION— CoHtmned. 
 
 INDEX. 
 
 undortakiiiK aH lo damanew, effect of, 872. 
 waxto, to restrain, If), 1(>, riC. 
 writ of, aboliehed, H70. 
 
 INSPECTION. See Discovkuy-Mahtkii. 
 
 of documents, costs of, when disallowed. Oil. 
 see DiscovEUY. 
 property, pendente lite when ordered, 872, H73. 
 
 INSPECTOR OF LEGAL OFFICEK. 
 
 appointment of, 120. 
 
 books to be produced to, 121. 
 
 duties of, 121. 
 
 inquiries, how to be made by, 121. 
 
 stamps, may order to be affixed, 122. 
 
 INSPECTOR OF TITLES, See Quietinu Titli;s. 
 
 INTEREST. See Accountant— Sales m Tua Couin. 
 
 action, commencement of, against trustee, does not stop, 1(»1. 
 administrators, liability for, 159-1()2. 
 advances by executor, or trustee, on, Kil. 
 
 po.rtners, 1G2. 
 a^ent, liability for, 162. 
 allowance of, 180. 
 
 annuities, when not payable on, 162. 
 arrears of, recoverable, 1G4. 
 charged on land, arrears recoverable, lfi4. 
 compound, may be allowed by Master, iri8-164. 
 contract to pay until principal paid, 180. 
 
 whether enforceable. 180. 
 covenant, payable under, arrears recoverable, 1()4. 
 damages, when allowed by way of, 89. 
 debts, on, 89, 772, 77H. 
 demand of, when necessary, 180. 
 ccjuity, practice in, as to allowing, 180. 
 excessive, claimed, disallowance of, GIG. 
 executors, liability for, 159-162. 
 exorbitant, 228. 
 increased, stipulation for, 228. 
 judgments on, 90. 
 
 law, practice at, as to allowing, 180. 
 legacies, when payable on, 162, 772, 773. 
 Master to compute on debts, and legacies. 772-773. 
 mortgage, what recoverable under 228. 
 when exorbitant, 228. 
 
INDKX. 
 
 12'25 
 
 lOt 8tOp, 101. 
 
 iforoeable. 180. 
 64. 
 
 INTKREBT— C'f)«/inMtfrJ. 
 
 inort(^a>,'ee in poBHeHsion, when liable for, KiU. 
 
 on (lobtH, in iidministnition action, liow computed, 77'J, 77.'!. 
 
 legticioH, in adniiniHtnition notion, iiow coniptitcd, 772, 77.'1. 
 purtuerHliip iiccounta, when chai'tieable in, Hi2, Ui:t. 
 payable, in wiiat cascH, Hi). 
 
 after demand, Mi». 
 
 on debts certain, H!(. 
 personal representatives, liability for, l.T.l-Ki'J. 
 policies of insurance, when payal)k' on, Itl'i. 
 rate of, char^;eable at^ainst [jersonal ro])roH('ntative8, 100. 
 
 after day fixed for payment of jjrincipal, 228, 77H. 
 rests, may be allowed by Master, ir)H-lt)4. 
 Statute of Limitations, when a bar to recovery of, 1(11, 1(17. 
 Bubseqnent, how allowed, 2H7. 
 tender, effect of, on, 22',). 
 trustees, liability for, ii'iS)-l()2, 
 verdict, on, !)0. 
 
 Hee In.iunction. 
 
 77H. 
 
 INTERIM PRESERVATION OF PROPERTY, 
 order for, may be {^ranted, 870. 
 
 application for wlien made, 870, 872. 
 how made, 871. 
 sale may be ordered of perishable property, 871. 
 undertaking as to damaj^es required, 872. 
 
 INTERPLEADER. • 
 
 action, stay of, as against applicant for, 883. i ' 
 
 affidavit for order of, entitling, 87(5. 
 appeal, whether any lies from judgment ut trial, 7!t. 
 application for, evidence required on, 882. 
 bailees, by, 88!). 
 
 lien of, may be provided for, 890. 
 carriers, by, 88i). 
 
 lien of, maybe provided for, 800. 
 chose in action, between rival olainnvnts of, at instance of debtor, 18-9. 
 claimants, not appearing, effect of, 883, 884, 890. 
 barring claims of, 884, 890. 
 may be required to appear, 883. 
 titles of, need not have common origin, 882. 
 costs of proceedings in, 87(5, 880. 
 
 how disposed of, 884, 885, 88(1. 
 
 in C. C. cases, 888. 
 jurisdiction as to, 939. 
 Sheriff, taxation of, 88(5. 
 
1226 INDEX. 
 
 INTE KPLE ADER— Co»tinMed. 
 
 cost of Sheriff, payment of, 886. 
 
 when case compromised, 880. 
 County Courts, in, 887. 
 
 appeal to Court of Appeal allowed, 88!). 
 issue, how tried, 887, 888. 
 defemlant, wh(ij he may get relief by, 882. 
 execution creditor, refusing to contest, may be barred, 884. 
 executions, several may be embraced in one proceeding of, 885. 
 
 from several C. C, application how made, 885. 
 issue may be ordered, 883. 
 
 Judge trying issue, may finally dispose of matter, 884. 
 jurisdiction of Court as to, !)i5i). 
 lien of applicant, no bar to relief by, 882, 890. 
 
 may be provided for, H!)0. 
 order of, 883. 
 
 how entitled, 885. 
 order for sale of goods seized, 884. 
 possession money, Sheriff, when entitled to, SSCt, 887. 
 payment of, how ordered, 8S(), 887. 
 proceeding is not an " action," 2. 
 production of documents, may be ordered in, 496. 
 questions of law, how disposed of, on application for, 883. 
 relief by way of, when it may be granted, 875-882. 
 jsale, order for, when there are seveial executions, 886. 
 security for costs may be ordered, 945. 
 Sheriff, by, 876-880. 
 
 applying, when several executions, 88.^. 
 
 from different, C. C, ^^ho. 
 may tax his costs when issue ordered, 886. 
 when entitled to possession money, 886, 887. 
 stakeholders, by, 881. 
 summary disposition of claims, on application for, 883. 
 
 INTERPRETATION OF WORDS. 
 
 in Act, 2, 3. 
 
 Rules of Court, 131, 132. 
 
 INTERROGATORIES. See Commission to Ex'.:iini; Witneshks. 
 
 IRREGULARITY. See Appeahance— Sales hy the Couut. 
 
 amendment of, 460. 
 
 commission to examine witnesses, in execution of, 549. 
 
 formal defects, not to defeat proceeding, 4.')8. 
 
 motion against, when to be made, 459. 
 
 nullity, what is, 459. 
 
allowed, 88',). 
 
 INDEX. 
 
 1227 
 
 IKREGVIjAEITY— Continued. 
 
 non-oompliance with Rules, effect of, 458, 459. 
 
 notice of motion to set aside proceedings for, form of, 520, 521. 
 
 purchaser, when not affected by, 62. 
 
 waiver of, 459. 
 
 ISSUE. See Attachment of Debts — Interpleadeu. 
 Divisional Court, power to direct trial of, (UO. 
 judgment, after trial of, motion for, 639. 
 
 ation for, 883. 
 
 .JOINDER OF ISSUE. See PLEAinNos. 
 
 delivery of, 418. 
 
 time for delivery of, 418. 
 
 JUDGE. See Court op Appeal — High Cocrt of Justice 
 Court of Judicature. 
 amendment, power of, to allow, 459. 
 appealed from, not to sit on appeal, 8. 
 appeals from judgment of, at trial, 065-668. 
 
 to, from Master in Chambers, 689-692. 
 local Judge, or Master, 689-692. 
 appointment of, 5. 
 assizes, authority of, at, 92. 
 
 who may preside at, 92. 
 Chambers, powers of, in, 527. 
 
 sitting in, 31. 
 Chancellor of Ontario, 5. 
 
 precedence of, 6. 
 Chief Justice of C. P., 5. 
 Q.B.,0. 
 
 precedence of, 6. 
 costs, discretion of, as to, 891-898. • 
 
 County Court, of. See Local Judges. 
 definition of, in liulen, 131. 
 
 evidence, further, power to admit on appeal, 546, 547. 
 judgment at trial, jurisdiction of, to set aside, 663. 
 jury, when he may dispense with, 86. 
 
 not dispense with, 87. 
 marshal and clerk of assize, when he may appoint, 142. 
 meaning of, in llulat!, 131. 
 name of, to appear in orders, 32, 33, 653. 
 judgments, 653. 
 
 ■ Sri'iifc-MK 
 
1228 
 
 JVDGE— Continued. 
 
 INDEX. 
 
 notes of trial, certified copies of, fi02. 
 oath of office, 9. 
 
 administration of, 9. 
 official Referees, he may refer questions to, 95-97. 
 
 actions to, for trial, 98 100. 
 
 orders of, to be in name of Court, 32, 33. 
 
 qualiflcaticn of, 5. 
 
 powers of, 5, HI. 
 
 presidents of Divisions, f». 
 
 precedence of, 6. 
 
 reconsidering judgment, power of, as to, (lijC). 
 
 referee, may appoint, 529. 
 
 powers of Judge as to proceedings before, 10 1, 
 resignation of, (i. 
 
 delivery of judgment after, G. 
 
 retired, may hold sittings of H. C .1., 92. 
 rights, and powers of, 31. 
 Rules of Court, power to make, 102-105. 
 sittings, authority of, at, 92. 
 
 for trials, 90, 91. 
 
 who may preside at, 92. 
 trial by, 83-8«. 
 
 after abortive trial by jurj , 87. 
 
 without jury, when authorized, 83-8(). 
 vacation, sittings of, in, 2G4. 
 
 jurisdiction of, in, 2(J5. 
 weekly sittings of, officers to attend, 135. 
 witnesses, may be excluded by, at trial, 594. 
 
 JUDGE OF COUNTY COURT. See Locai, Jitdoes. 
 
 examination of judgment debtor, may be taken Ijy, 73-1-737. 
 when not to be taken by, 910. 
 
 JUDGMENT. See ADMiNisriiATiox— Masteh. 
 
 absconding debtor, against, right of other creditors to impciuh, m.')!. 
 absent Judge, of Court of Appeal, of, H. 
 administration, for, how obtained, 7(i8. 
 
 effect of, as to creditors' claims, 773. 
 amendment of, (i54-()5(l. 
 appointment to settle, 01ti-()48. 
 
 attendance on, <i49. 
 pass, <)4(1, (148. 
 
 attendance on, 049. 
 
INDEX. 
 
 1229 
 
 creditors to impciuli, ••*''l. 
 
 JUDGMENT— CoH(m«crf, ■ ': 
 
 at trial, motion to set aside, G(J5-(jG8. 
 
 in interpleader issue, (108. 
 jury cases, 667. 
 non-jury cases, 667-8. 
 
 bond, in action on, assignment of breaches, 610. 
 
 carriage of, 150, 151. 
 
 carrying into operation, petition for, 656, 657. 
 
 class actions, effect of, in, where some only sue, or are sued, 341. 
 
 clerical errors in, amendment of, 654. 
 
 cognovit, on. See Cognovit. 
 
 conditional relief, for, how enforced, 711. 
 
 on production of aflldavit, etc., 650. 
 certificate, 650. 
 
 when to be taken as abandoned, 650, 651. 
 
 consent, cannot be varied, 138, 508. 
 withdrawn, 655. 
 not appealable, without leave, 73, 74. 
 
 construing will, when binding on class, 341, 342. 
 costs, as to, when appealable, 73-75. 
 
 for, on payment into Court in satisfaction, 570. 
 in ejectment, on non-appearance, (ill. 
 
 omissions as to, in, how remedied, 655, 656. 
 
 counter-claim, on, motion for, after action dismissed, 6i!i. 
 date of, 640. 
 
 how to be stated in, 653. 
 
 signing to be stated, ()40. 
 
 day to show cause, when to be inserted in, 652. , . 
 
 declaratory, may be pronounced, 39, 
 
 vhen refused uiuler former practice, 30. 
 default, by, date of, 640. 
 
 setting aside, 663-665. ' 
 
 of appearance, on, (IOC), 607. 
 
 detimie, in, 608. 
 pecuniary damages, for, 608. 
 several defendants, 607, 600. 
 writ not specially indorsed, 607, dOO. 
 where writ specially indorsed, and unli(juidated 
 damages claimed, 600. 
 
 of pleading, how obtained on, in mortgage action. 612, 618. 
 
 other actions, 015-620. 
 delivery of, by Judge, after resignation, 6. 
 demurrer overruled, after, 616. 
 dower, for assignment of, how enforced, 700. 
 
 
1230 
 
 INDEX. 
 
 % 
 
 JUDGMENT— Cowtiwuerf. 
 
 ejectment, for default of appearance, in, 611. 
 
 defence, in, G18. 
 enforcing, as against parties subsequently acquiring title, iiOl. 
 entry of, 647, 652. 
 
 date of, to be stated in, 652. 
 
 effect of omitting to make, 647, 648. 
 
 Judge at trial may order, 507. 
 
 motion to vary after, 137, 138. 
 
 nunc j)ro tunc, 648. 
 
 requisite, 649, 051. 
 
 time for, 647. 
 
 when it may be made, 650. 
 
 in High Court cases tried in C. C;., (101. 
 C. C. cases tried in H. C. J., (101. 
 
 erroneous, court may refuse to carry out, ()46. 
 error in, how corrected, (J55, (lod. 
 execution of, by_/(. fa. goods, 704-70(j. 
 lands, 707-701). 
 hdh. fac. pons., 70."), 708, 70!». 
 sequestration, 71()-7'20. 
 leave to issue, when necessary, 720, 721. 
 
 final, may be given on motion for new trial, ()40. 
 
 leave to sign, after appearance to specially indorsed writ, 0'24-f);i'2. 
 
 affidavit for, (128. 
 * form of, 628. 
 
 against, 62'.). 
 against married woman, 027. 
 Indians, 627. 
 one of several defen- 
 dants, 633. 
 in ejectment, 627. 
 time for moving for, 627. 
 when refused, 629. 
 when security for costs 
 ordered, 627. 
 on overruling demurrer, 616. 
 
 default of appearance, 606, 607, 611, 613. 
 in ejectment, 611. 
 
 mortgage actions, 613. 
 when several defendants, 607. 
 defence, 615, 616, 617. 
 
 when several defendants, 616. 
 foreclosure, for, form of, 652, 653. 
 forms of, 650, 652, 653. See Foums. 
 
INDEX. 
 
 1231 
 
 Eendants, GIO. 
 
 JUDGMENT— CoHYiHwef?. 
 
 further directions, on, 645, 646. 
 immediate, 650. 
 
 impeaching for fraud, petition for, 656, 657. 
 infant, in favour of, how enforced, 712, 713. 
 
 against, in mortgage actions, 61'2. 
 interest, excessive claim for not allowed on entering, 616. 
 
 payable on, 1)0. 
 interlocutory, in default of appearance, 608, 609. 
 
 defence, 617. 
 
 wlien several defendants, 617. 
 no appeal from, 77, 78. 
 irregularity in, not to affect purchaser, 62. 
 Judge pronouncing, name of, to be shown in, 651-5. 
 jurisdiction, want of, in pronouncing, not to affect purchaser, 62. . 
 liberty to apply, reservation of, unnecessary, 651, ()5(). 
 lunatic, service of, how to be made on, 375, 377, 378. 
 office copy, to be served on persons interested, who are not parties, 
 
 351, 3.W. 
 indorsement of, 351. 
 matters not adjudicated, amendment as to, ()56. 
 mistakes in, amendment of, 654-()56. 
 meaning of, in Act and lUilea, 3. 
 minutes of, how prepared, 648. 
 
 motion to vary, 137, 1.38, G46, 647. 
 
 when settled by local officer, 648. 
 settlement of, 137, 64(5, 648. 
 
 misjoinder of parties, may be pronounced notwithstanding, 354. 
 mortgage action, fon.is of, in, 652, 653. 
 
 when granted in Chambers, 612. 
 on prcecipe, 613. 
 motion against, by party added in M. O., 153, 223, 224. 
 
 time for, 153, 223, 224, 480. 
 in C. C. actions, 950. 
 
 motion for, 637. 
 
 accounts may be directed on, 640. 
 after trial, 598, 599, 687. 
 
 of issues of fact, 639. 
 defendant, when he may make, 639. 
 in default of defence, 618-620. 
 
 notice of, ()19. »' 
 
 inquiries may be directed on, 640. 
 issues may be directed on, 640. 
 notice of, 619, (>37, (538. 
 pleadings, must show good cause of action, 637, 638. 
 
•''^<?i 
 
 1282 
 
 INDEX. 
 
 JUDGMENT— Contmi/tfrf. 
 
 motion for, settinf^ down, (i.HT, ()39. 
 
 statement of claim, when necessary, before, 637. 
 third party, by, or ac^ainat, (520. 
 unnecessary, after trial, or assessment, 637. 
 non-joinder of parties, may be pronounced notwithstanding', ii")4. 
 non-suit, effect of, ()()5. 
 
 pleadable in bar, (Kio. 
 when set aside, 605. 
 i;. V j to bT indorsed, on copy served on parties added in M. O., 153 
 pari'.ttrat .,s, to be divided into, (153. 
 in, to be numbered, 6.53. 
 partition, for, wlien granted in Chambers, 778. 
 
 lands 8ubse<iuently discovered, 780. 
 Local Master, when he may }»rant, 778. 
 
 to enter, 781. 
 proceedings, where more than one made, 780, 781. 
 partners, against, how enforced, 711, 712. 
 passing, appointment for, ()4(). 
 payment of money, for, effect of, 740. 
 
 into Court, for, effect of, 741. 
 costs, for, effect of, 740. 
 persons interested, but not made parties, to be served with, 
 
 omission to serve, 
 
 pracipe, entry of, necessary, (551. 
 
 when granted on, in mortgage actions, 613. 
 reconsideration of, by Judge, ()5ll. 
 
 reference, directing, when to be taken into M. O., 150. 
 report of Official Referee under s. 101, after, !)7, 98, 101. 
 
 8. 102, after, 100, 101. 
 representative of class, against, effect of, 341. 
 reserving, by Judge at trial, 597. 
 
 return of, to be made, when entered in outer oflices, 137. 
 reversal by C. A., respondent may consent to, 684. 
 
 of, on new matter, evidence required for, 058. 
 sale, for, in mortgage actions, form of, 652, 653. See FoiiMS. 
 satisfaction of, how to be e.xecuted, 658, 659. 
 
 entry of, 059. 
 service of, dispensing with, 152, 353. 
 
 effect of, 353. 
 effect of, 352. 
 on whom to be make, 351-353. 
 
 parties added in M. O., 153. 
 power of Master to dispense with, 152. 
 substituted, by advertisement, 353. 
 
 351, 352. 
 effect of, 
 34(i. 
 
INDEX. 
 
 1233 
 
 added in M. 0., 153. 
 
 one made, 780, 781. 
 
 JUDGMENT— C'0H/i«ue</. 
 
 setting aside, motion for, by person served with, 153, 223, 224, 351. 
 
 liow made, 353. 
 when obtained by default at trial, G63, 6C4, 
 settlement of, 137, 046. 
 
 appointment for, r)4()-048. 
 power of Registrar on, (540. 
 production of briefs may be required on, 647. 
 several defendants, writ specially indorsed, 007. 
 sifjniug, datie of, to be stated, 04!l. 
 
 solicitor may be ordered to produce documents in order to settle, 047. 
 specially indorsed writ, on default of appearance to, 606, 607. 
 staying proceedings on, pending appeal, 672-4. 
 
 sums in, to be stated in dollars and cents, 053. ■ . . i 
 
 suspending operation of, petition for, 656, 657. .', . 
 
 varying, 153, 22:5, 224, 351, ;, ,;i, 648, 656. 
 
 motion for, by person served with, 153, 223, 224, 351, 353. 
 
 how made, 353. 
 sanction of Court necessary to, 138. 
 written, of absent Judge in Court of Appeal, &. 
 
 .JUDGMENT CLERKS. 
 
 application to, to vary minutes, 648. 
 duty of, 137. 
 
 JURISDICTION. See Coukt of Appeal — High Goukt op Justice — Locad 
 Judges — Local Masters — Master — Master in Chamders — Master 
 IN Ordinary. 
 
 means " territorial '' jurisdiction, 303. 
 JURAT. See Affidavits. , , 
 
 JURY. See Trial. " 
 
 actions /^ri'ma /rtc/c triable without, 84. 
 
 for trial by, to be first disposed of, 90. 
 costs, recommendation of, as to, 898. • 
 
 disagreement of, 598, 599. • 
 
 dispensing with, 80, 87. 
 Judge may strike out notice for, 86. 
 notice for, to be given, 85. 
 
 consent to waive, 80. 
 
 effect of, 85. •- ,. - 
 
 form of, 85. 
 
 striking out, 8(», ST. 
 questions, when required to answer, 88, 89. 
 recommendation of, as to costs, effect of, 898. 
 
 J. A. 78 
 
iajj4 
 
 INDEX. 
 
 JURY— Continued. 
 
 without, 83, 84. , . „ qq 
 
 ^^^"•'''affiaavittoobtain,004^ 
 deposit required for, 604. 
 
 L^NDS. See ExECUTioK. 
 L^W. See L.W A.B E«nm. 
 
 for term of years, lo" velieved against, 22. 
 
 . ^^^^•::^S::^Sr:l:n.ay.e relieved a,a.nst, 22. 
 
 infants' lands, of. See I^r.NX. 
 '^^led estate, of. See Ik.x«t. _ 
 
 I,E^E TO APPEAL. 
 
 when necessary, 7ii, '•' '«'• 
 
 granted, 81. 
 
 refused, 81. aPi.VlALLY INDORSED. 
 
 .EWE TO DBFEHD, WHB.. WRT SPi^OIAL 
 
 I,BAVE TO SIGN WDGMbNT Ot) 
 
•w^-^. 
 
 of, may be ovderea 
 ■dered, 532. 
 
 i, 66, 67. 
 
 against, '22. 
 
 !2. 
 
 3d against, 22. 
 
 ALLY INDORSED. 
 
 3IALLY INDOBBED 
 
 INDEX. 1235 
 
 LEGACY. See Legatee. 
 
 compensation, by way of, to executor, effect of, 175. 
 
 does not abate, 175. 
 
 interest on, 175. 
 interest on, 162, 772, 773. 
 
 LEGATEE. See Administuation. 
 
 annuity, arrears of, payable under will, not entitled to interest on, 1G2. 
 interest, right to, 163, 772, 773. 
 
 LEGITIMACY, 
 
 declaration of, petition for, 806, 807. 
 
 LIBEL. 
 
 jury cannot be required to answer questions, 88, 89. 
 
 question as to fairness of publication, is for, 6il. 
 publication of, how restrained, 57. 
 
 LIBERTY TO APPLY. 
 
 reservation of, in judgment, unnecessary, (551, 656. 
 
 LIEN OF SOLICITOR. See Solicitor. 
 
 LIEUTENANT-GOVERNOR. 
 
 officers of Court, may be appointed by, 107-108. 
 
 names and duties of, may be changed by, lOS. 
 Rules of Court, may empower Judges to make, 105. 
 vacations, powers of, as to, 6'J-70. 
 
 LIS PENDENS. See Pendente Lite. 
 
 certificate of, how issued, 280. , 
 
 how vacated, 280, 281. 
 motion to set aside fraudulent, 793. 
 when set aside, 280, 281. 
 doctrine of, 222. 
 
 does not affect purchasers at tax sales, 222. 
 • , , rights acquired under expropriation Acts, 
 
 •22'2. 
 
 transferees of negotiable paper, 222. 
 special case, may be registered as, 28. 
 
 LOCAL JUDGES. 
 
 chambers, jurisdiction of, in, 145, 148. 
 
 matters excluded from, 148. 
 fraudulent conveyance of land, jurisdiction to set aside, 791. 
 injunctions, power of, to grant, 125, 148. 
 
 -*1 
 
• ^^i- 
 
 123G 
 
 INDEX. 
 
 I 
 
 h 
 
 i > 
 
 LOCAL ;i\]T>GES— Continued. 
 
 Judges of C. C, to be, V2r). 
 
 H. C. J. may refer matters to, 148, 140. 
 Local Masters, when to be also, 111, 112. See LocAii Mahtkus. 
 mdnihtmus, no jurisdiction to grant, HGl 
 quo warranto proceedings, jurisdiction in, 148. 
 
 See CoNTuovKHTui) Municipal Elections. 
 
 LOCAL MASTERS. See Bail.vulk Prockk1)ino8 — Mastur — Officers 
 
 OP COUKT — QuiF.TINfl TiTLES. 
 
 administration, when they may grant judgment for, 707. 
 
 judgment for, how entered, 781. 
 appeal from, in Chambers, (589, (ji)0. 
 reports of. 698, 696. 
 See Ai'i'KAi,, 
 appointment of. 111, 113. 
 Chambers, jurisdiction in, 145, 240, 241. 
 fees of, how payable, 124. 
 
 may be commuted, 112. 
 
 order in Council as to, to be laid before L. A., 128. 
 fraudulent conveyance of land, jurisdiction as to, 791. 
 Local Judges, when to be. 111, 112. 
 manrfaniKS, no jurisdiction to grant, 869. 
 partition, when they may grant judgment for, 778. 
 
 judgment for, how entered, 781. 
 practising, as solicitor, or counsel, when pro libit 3d from, 113. 
 
 penalty .or, when prohibited from, 
 
 113. 
 referees of titles, when entitled to act as. See Quieting Titles. 
 residence of. 111. 
 tenure of office, 113. • • ' 
 
 LOCAL REGISTRARS. See Officers of Court, 
 
 appointment before, attendance on, 479. 
 one sufficient, 479. 
 of, how made, 113. 
 clerk of assize, duties of, when acting as. See Clerk of Assize. 
 criminal proceedings, return of, to be made by, 140. 
 duties of, 135-137. 
 fees of, 136. 
 
 how paid, 113, 123, 124. 
 judgments, returns of, to be made by, 137. 
 marshall and clerk of assize, to act as, 140. 
 
 returns to be made as, 140. 
 office copie8,^of judgments, may be certifiedlby, 464. 
 orders, entry of, by, 137. 
 
 
 %i^^flEik 
 
INDEX. 
 
 1237 
 
 RK OK Assize. 
 
 LOCAL REGISTRARS— CoH//»iM«/. 
 
 others, for production of documents, appeal from, 41)0. 
 
 to return writs, may be issued by, on pru'cipe, 730, 731. 
 postiif^e on returns to be paid by, 140. 
 seal of, 114. 
 
 settlement of jud{^ments by, (liH. 
 
 tenure of office, 113. . ■ 
 
 who to be, 112. 
 
 LONG VACATION. 
 
 time of, when not to be computed, 4S0. 
 
 LORIGINAL. 
 
 payment into Court with defence, at, 24*^. 
 
 LOWER SCALE, 
 tariff, 1070, 1090. 
 
 certificate to bo filed in bringing action under, !)2(). 
 in what cases it applies, 924-92(). 
 
 LUNATICS. 
 
 committee of, how appointed, 220. 
 
 improvements by, allowance for, 170. 
 
 production of documents by, 505. 
 
 service of writ on, 295. 
 declaration of lunacy, may be granted by Judge in Chambers, 524. 
 defence of, how framed, 375. 
 defendant, defends by committee, 375. 
 
 or guardian ad litem, 375. 
 
 discovery, of documents of, by committee, 505. 
 
 guardian ad litem for, how appointed, 375-377. 
 
 improvements, made by committee of, without previous sanction, 170. 
 
 judgment, service of, hosv to be made on, 377, 378. 
 
 jurisdiction of H. C. J. as to, 11, 15, 29. 
 
 Master in Chambers, jurisdiction as to, 142. 
 
 order declaring, to be entered, .526. 
 
 Official Guardian, when he may be served for, 375. 
 
 pendente lite, action may be continued by committee, 374. 
 
 plaintiff sues by committee, 374. 
 
 or next friend, where not so found, 374. 
 Attorney-General, 374. 
 service on, of proceedings, 375. 
 special case, party to, 533. 
 writ of summons, how served on, 295, 296. 
 
h< ^^n^ ^ ^//3r^^^ ^1^0 
 
 1288 INDBX. 
 
 M 
 
 MAINTf^NANCE. See Infant. 
 
 MALICIOUS ARREST. 
 
 jury cannot be rccinired to answer qiieHtioiifl, in action for, Ks, Mil. 
 trial of action for, must bo by jury, H4. 
 
 except by coiiHunt, 84. 
 
 MALICIOUS PROSECUTION. 
 
 jury cannot be required to answer (luestions, in actinn for, bK 
 trial of action for, must be by jnry, 84. 
 
 except by consent, 84. 
 
 :\IANAGER. See RtcEivEii. 
 
 MANDAMUS. See Controveutkd Municipal Elections 
 
 abatement, in proceedin},'s for, 860, 8()7. 
 action for, 860, 861. 
 
 proceedings in, 862. 
 Chambers, when granted in, 868, 860. 
 
 claim for, when it may be indorsed on writ of summons, 860. 
 Common Law Courts, when granted by, 861. 
 enforcement of, 866, 86y. 
 indorsement of claim for, 53, 860, 862. 
 interlocutory, when granted, 54. 
 judgment granting, 862. 
 Local Judge, cannot grant, 869. 
 Local Master, cannot gi'ant, 869. 
 Master in Chambers cannot grant, 143, 869. 
 motion for, 862, 863. 
 order for, may be made forthwith, 867-8G9. 
 
 date of, 867. 
 
 enforcement of, 86(), 869. 
 
 return to, 864-868. 
 
 service of, 869. 
 peremptory, subject to appeal, 54, 860-868. 
 
 return to, 866. 
 prerogative, when granted, 53, 54, 860. 
 
 not interfered with by Judicature Act, 54 
 writ of, whether abolished, 862. 
 return to, 864-866. 
 
 death of person making, effect of, 866, 807. 
 
 d«murrer to, proceedings on, 867. 
 
11 for, 8H,W». 
 
 INDEX. 
 
 1289 
 
 MASDAMUS— Continued. 
 
 return to, demurrer to, form of, 800, 
 
 form of, 800. 
 
 objection to, 807. 
 
 issue joined upon traverse, form of, HOO. 
 
 proeeeiiingH on. Hi;"), HM\. 
 
 removal from office of person malting', effect of, HOfi, 867. 
 
 resifjnation of pfson nialtiiij?, effect of, H(iO, H07. 
 Htfttute !( Anne, c. '20, applicivtion of, HOiJ, HOi. 
 traverse of, issue joined on, form of, 80(). 
 when (granted, H'iO-HG'i. 
 writ of, abolished, HO'i. 
 
 MARRIED WOMAN. See J'ayment out of ("otm. 
 actions by, liow brouglit, iJiJi), HHC, hh'J. 
 
 against, 3B5, 330, 33i». 
 alimony, may sue for, without next friend, 334. 
 contracts of, liability on, 330, 337, 338. 
 
 ante nuptial, action on, 338. 
 
 judf^mont on, 338. 
 
 form of, 338, 
 
 deed, dispensing with execution of, by, 144. 
 
 examination of, on application to lease or sell settled estate, when 
 
 unnecessary, 20. 
 execution against, how enforced, 335). 
 gift to husband and wife, and third party, effect of, 338. 
 husband, may sue his wife, 337. 
 
 when unnecessary party to action by, 335, 339, 
 
 agaitst, 335, 33'J, 
 witness against his wife, 337, 
 judgment against, effect of, 339. 
 
 form of, 338, 339. 
 how enforced, 338. 
 liability of, on contracts, 337. 
 next friend, when to sue by, 331, 339. 
 nhange of, 340. 
 ' demurrer for want of , improper, 339. 
 
 must have authority to act, 340. 
 objection for want of, how taken, 339, 340, 
 . who may be, 340. 
 power of appointment, general, execution of, by, effect of, 338. 
 property of, actions respecting, 330-339. 
 remedy of, for protection of separate property, 337. 
 separate estate, possession of, essential to power of, to contract, 330, 338, 
 sequestration, against property of, 339, 
 
 
fiC. ■ ^ 
 
 1240 
 
 INDEX. 
 
 MARRIED WOMATi— Continued. 
 
 settled estate, application to lease or sell, when interested in, '2'j. 
 
 special case, party to, 533. ■ , , 
 
 tort, by, or against, action for, 33!l. 
 
 trespass to separate property of, action for, 339. 
 
 wife may sue her husband, 337. 
 
 witness against husband, 337. 
 
 writ of summons, service on, '2!)3. 
 
 MARSHAL AND CLERK OF ASSIZE, 
 
 absence of, Judge may appoint deputy, 142. 
 Deputy Clerk of Crown, to act as, 140. 
 
 fees of, as, 115. 
 fees payable to, 115. 
 Local Registrars, to act as, 140. 
 
 fees of, 115. 
 York, of, 140, 141. 
 
 appointment of, how made, 114. 
 
 duties of, 140, 141. 
 
 fees of, 141. 
 
 Registrars of Q. B. and C. P. Divisions, when to act as, 141. 
 
 returns to be made by, 141. 
 
 MASTER. See Ad-ministration — Local Masteks — Mastt;;; in Oiidinahy— 
 Masteh's Office — Mortoaoe Actions — Sales by the Court. 
 
 abstract of title, sufficiency of, how determined by, 208, 209. 
 
 See Abstract of Title. 
 accounting party, cross-examination of, 181, 183. 
 surcharf^ing, 183. 
 
 accounts, all matters relating to, may be inquired into by, 170, 177. 
 admissions as to, how ascertained, 182. 
 amendment of, may be allowed by, 184. 
 ' bringing in, before, how enforced, 514. 
 form of, in office of, 181. 
 
 fUrectionto bring in, without warrant, sufficient, 182. 
 duty of accounting party to make out, 181. 
 may appoint day to ascertain what admitted, and what con- 
 tested in, 182. 
 
 objection to form of, may be waived, 181. 
 surcharging, 183. 
 verifying, 181. 
 
 cross-examination on affidavit, 181. 
 notice of, 181. 
 - . vouching, 157, 178, 181. 
 
 books, when admissible for, 181. 
 
INDEX. 
 
 1241 
 
 crosted in, 'Jv. 
 
 when to act as, 141. 
 
 MASTER- Conthmed. . ■• 
 
 accounts, vouching, directions may be given as to, 157, 
 sums of $8 and under, 181. 
 warrant to proceed on, how a.iderwritten, 182. 
 adding parties, 151. 
 
 in mortgage actioiir, 222, 223, 323. 
 
 See Mout(;aoe Actions. 
 adjournment of reference, when jiermissible, liiii. 
 administration action, powers of, in, 770, 771. 
 
 form of report in, 191, 980. 
 admissions before, how made, 182. ., 
 
 entry of, in Master's book, 182. 
 witlidrawal of, 182. 
 See Admissions. ■ • 
 
 advertisements for creditors, etc., inay order 178. 
 
 formof, 178, 179. 
 dispensing with, 17H, 179, 774. 
 
 svhen dispensed with, should be stated in report, 18.5. 
 appeal from, when necessary, 187. See infra report, 
 it does not iie, 188, 189. 
 disallowance of claim by, 180. 
 grounds of, must be raised before Master, 18(). 
 appointments of, how to be notified to parties, 184. 
 default in attending, effect of, 184. 
 one sufficient, 479. 
 time for waiting on, 479. 
 
 attendance of parties before. Master to regulate, 157. 
 
 auctioneer, may act as, 198. 
 
 book of, how to be kept, 183. 
 
 books and papers, may order production and inspection of, 177, 178. 
 
 of account, how for evidence, 178. 
 certificate of, is a report, 184. 
 
 for foreign commission, form of, 550. 
 of default, 178. 
 
 proceedings before, 183. 
 
 certifying, after report, 183. 
 claims, proceeding on, 179. 
 
 creditors', how proved, 179. 
 
 parties entitled to attend on, 179. 
 not referred, cannot allow, 175. 
 class, may constitute, 153. - ■ 
 
 appoint solicitor for, 153. 
 appointment of solicitor to represent, should be stated in report, 
 
 185 
 clerk of, may act as auctioneer, 198. 
 
1242 
 
 'MABTi.B.— Continued. 
 
 INDEX. 
 
 close of hearing, by, parties to be notified, 184. 
 
 to be noted in Master's Book, 184. 
 commission to examine witnessesa, may give certilicato for, 177, 
 
 not ex parte, 177. 
 nor of course, 177. 
 committee, appointment of, how made by, 220. 
 
 passing accounts, to appoint time for, 220, 221. 
 paying in balances, to appoint time for, 221. 
 compensation for services, power of, to allow, 174, 175. 
 contempt of, how punished, 178. 
 conveyances, may be settled by, 180. 
 
 execution of, may direct, 180. 
 copies of documents, when not to be used before, 181. 
 when to be made for, 181. 
 by whom to be furnished, 181. 
 costs and expenses, may allow, 1.58, 172, 173. 
 
 niaiters affecting, should be reported by, 185. 
 ■ of solicitor appointed to represent a class, 153. 
 should report matters affecting 176. 
 when not to be inserted in report until revision, Ol'.h 
 counsel, right to practise as, 14i). 
 Court may dispose of case, without reference to, 150. 
 Court of Appeal, is an officer of, 149. 
 creditors, may advertise for, 178. See Creditors. 
 classify, 153 
 advertisement for, 178. 
 * dispensing with, 178. 
 
 claims of, how proved, 179. 
 
 disallowance of, appeal from, 180. 
 who entitled to appear on, 167. 
 coming in after time, 179, 180. 
 
 terms, imposed on, 180. 
 constituting a class, appointment of solicitor for, 153. 
 
 liability for costs of solicitor for, 153-4. 
 disallowance of claim of, appeal from, 180. 
 plaintiff claiming as, must prove claim in M. O., 179. 
 
 locus gtandi of, may be disputed in M. 
 . , O., 17(). 
 
 other creditors may contest, 179. 
 cross-examination of accounting party before, 181, 183. 
 death of, pending reference, 180. 
 
 deeds, delivery, and execution of, power to direct, 180. 
 default in production pursuant to order of, how punished, 178. 
 
 certificate of, form of, 17H. 
 
'i^m 
 
 !^'. 
 
 IKDEX. 
 
 1243 
 
 184. 
 
 ilicato for, 177. 
 
 77. 
 
 177. 
 
 220,221. 
 )r, 221. 
 , 175. 
 
 181. 
 81. 
 
 85. 
 
 15a. 
 
 ision, yiO. 
 ,150. 
 
 78. 
 
 m, 180. 
 157. 
 
 on, 180. 
 
 lolicitor for, 153. 
 i of solicitor for, 153-4. 
 , 180. 
 
 Lm in M. O., IT'J. 
 may be disputed in M. 
 O., 176. 
 
 may contest, 179. 
 181, 183. 
 
 ect, 180. 
 
 w punished, 178. 
 
 ■titicate of, form of, 178. 
 
 MABTEB,— Continued. 
 
 depositions in another action, "vhen evidence before, 178. 
 direction of, when binding without warrant, 182. 
 disallowance of claim by, appeal from, 180. 
 discovery, may give direction for, 177, 178. 
 
 default in making, how punished, 178. 
 discretion of, as to costs in administration actions, 770. 
 dispensing with advertisement, 178, 179, 774. 
 proceedings, power aa to, 183. 
 service of judgment, 152. 
 
 should be stated in report, 185-(>, 
 disqualification of, to act, 149, 150. 
 
 documents, may order production of, on examinatior , f or discovery, 
 
 490. 
 appeal from order for production of, 490. 
 enforcing order of, for production of, 514. 
 duty of, to devise speedy and least expensive mode of procedure, 188, 
 erroneous judgment, may refuse to proceed under, 156. 
 evidence, before, how taken, 177, 178. 
 
 corroborative, when necessary, 177, 178. 
 in support of account, to give directions as to, 157. 
 may order to be taken before Examiner, 177. 
 when to be given vivd voce, 537. 
 See supra — depositions, 
 examination of judgment debtor, may be taken by, 784, 737. 
 
 witnesses, may give directions as to, 177. 
 exceptions in writing, to ruling, or finding of, unnecessary, 187. 
 ex parte, not to proceed, 771. 
 experts, cannot employ, 184. 
 filing report of, necessity for, 188-190. 
 
 place for, 190. 
 functus officio, when he is, 185. 
 general powers of, 159-177. 
 hearing, close of, 184. 
 
 pariies to be notified of, 181. 
 to be noted in Master's Book, 181. 
 High Court, an officer of, 149. 
 incapacitated, becoming, pending reference, 18(i. 
 improvements, may allow for, 1(59-172. 
 
 See Isil'IlOVEMENTS. 
 
 incumbrances, may direct payment of, 181. 
 inquiry, to give directiouH as to mode of prosecuting, 157. 
 inspection, may give directions for, 177, 17H. 
 insurance premium, when he may allow, 172, 
 interest, arrears of, allowable by, 164. 
 
 
1244 
 
 INDEX. 
 
 MABTEB.— Continued. • ' 
 
 interest, annuity, when allowable on, lO'i. 
 
 compound, may be allowed by, 158-1(54. 
 creditors' claims, may be allowed on, by, 89, 180, 772, 77.!. 
 exorbitant, 228. (iKi. 
 
 lefjacy, when allowed on, by, 1(52, 772, 773. 
 moi't^agee, when he may be charj^ed with, by, 163. 
 See MoiiTHAOK Actions. 
 
 partnership accounts, when payable on, 158, 162-163. 
 policies of insurance, when payable on, 162. 
 principal and aj^ent, when allowed on account between, 1(12. 
 See Intkrest. 
 
 judgment, cannot go behind, 176. 
 
 nor restrict relief awarded by, 176. 
 locus standi of creditor obtaining, may be disputed in M. 0., 
 
 17(1. 
 power to dispense with service of, 1/32. 
 service of, when dispensed with, to be stated in report, 
 
 185-I8(i. 
 just allowaiiceto, piiWL'i' to make, l.'ii), 174, lln. 
 leave to attend proceedings before, Court may give, 157. 
 legacies, interest on, when he may allow, 1()2, 772, 773. 
 Master's Book, how to be kept by, 183. 
 
 admissions to be entered in, 182, 183. 
 close of hearing to be noted in, 184. 
 may appoint day to ascertain what admitted and what contested, 182. 
 mortgagee, when chargeable with rests, 163. 
 neglect and default, inquiry as to, 157, 158, 164-167. 
 
 former practice, 158. 
 
 next of kin, may advertise for, 178. 
 
 objections in writing, to ruling, or finding of unnecessary. 187. 
 
 occupation rent, may allow, 168. 
 
 see Occupation Rent. 
 office of . See Master's Office. . • 
 
 opening reference, 185. 
 
 paramount title, persons claiming, not to be added in M. O., 152. 
 
 may move against order, 153. 
 
 parties, adding in office of, 151, 152. SeePxitTiEs. 
 
 effect of, 152. 
 
 added in office of, bound as if original parties, 152. 
 
 constituting a class, solicitor may be 
 , appointed for, 153. 
 
 from what time bound, 152. 
 attendance of, may regulate, 373. 
 
INDEX. 
 
 1245 
 
 81), 180, 772, 77:!. 
 
 h. bv, 1(53. 
 
 nnecessary, 187. 
 
 IdA&TEli— Continued. 
 
 parties, may be classified by, 153. . . 
 
 examined, 177. . 
 
 witnesses, 177. 
 partnership accounts, interest on, wlien allowable by, 1.58. 
 payment of money into bank, how directed by, 190. 
 
 or out of. Court, schedule required of, to 
 report, 18(5, 187. 
 
 peiidriite lite, persons acquirinj;! intei'eats, when to be added by, 152. 
 plaintiff creditor, must prove claim before, 179. 
 
 other creditors may dispute claim of, 179. 
 representing class, l.^l. 
 
 pleadings, omissions in, do not affect general powers of, 158. 
 
 relief given beyond what claimed by, effect of, 158. 
 powers of, general, in taking accounts, 157-177. 
 
 not affected by omission in 
 pleadings, or evidence at 
 trial, 156, 1.57. 
 practise, right to, as counsel, o)' solicitov 1 Ml. 
 proceedings before, duty of, as to, 183. 
 
 how certified, 183. ' 
 
 regulated, 157. 
 production, may give directions for, 177, 178. 
 reasons of, when and how to be stated, 185, 
 receiver, how appointed by. See Kkckiver. 
 referee of titles, when entitled to act as. 
 reference to, 150. 
 
 back, evidence on, 189. 
 
 adjournment of, when permissible, 156. 
 
 change of, 149 
 
 closing, for neglect to prosecute, 154, 155. 
 
 conduct of, who entitled to, 151. 
 
 may be changed, 151, 154. 
 order changing, is appealable, 154. 
 party to whom transferred, may inspect 
 papers, 154. 
 may be dispensed with, 150. 
 opening, application for, 185. 
 
 order directing, when to be brought into M. O., 150. 
 place of, how determined, 149. 
 change of, 149, 150. 
 < proceedings on, how regulated, 157. 
 
 solicitor conducting, duty of, 151. 
 to be prosecuted de die in dicin. 155. 
 rents and profits, may tal.e account of, 158. 
 
1246 
 
 MASTEli— Continued. 
 
 INDEX. 
 
 report of, accounts not to be set out, or recited in, 186. 
 amendment of, after|^conflrmation, 187, (iit4, 
 appeal from, wlien necessary, 187. 
 
 after confirmation, 693-005. 
 
 costs of, ()95, G96. 
 
 hearing of, 189. 
 
 long vacation, not to count in time for, 480. 
 
 notice of, 118, 095. 
 
 form of, 188. 
 on question of fact, 189. 
 order on, to recite grounds, 189. 
 parties entitled to, 188. 
 setting down, 188. 
 time for, 187, 480. 
 
 clerical errors in, how corrected, 187. 
 confirmation of, 480, 693, 094. 
 
 effect of, 693, 694. 
 
 when necessary, 480, 693. 
 unnecessary, 693. 
 
 costs, when not to be inserted in, until revision, 919. 
 Court may refuse to act on, 646. 
 evidence not to be set out, or recited in, 186. 
 filing, 188, 694. 
 final, when to be made, 186. 
 general, what is, 185. 
 in administration action, 191, 980. 
 issue of, 187. 
 » made in vacation, when void, 155. 
 
 matters to be mentioned in, 185, 180, 
 
 advertisements dispensed 
 
 with, 185. 
 appointment of solicitor to 
 
 represent a class, 185. 
 costs, matters affecting, IHo, 
 judgment, service of (dispensed 
 
 with, 185, 186. 
 sums charged for wilful 
 neglect and default, IHii. 
 
 mistakes in, how corrected, 187, 694. 
 
 moneys, payable into, or out of Court, to besclieduled, l.S()-7 
 
 objections to, not taken on first appeal, are waived, 189. 
 
 payment of money into bank, how to be directed by, 190. 
 
 same as a certificate of, 184. 
 
 schedule to be attached to, 186, 187. 
 
INDEX. 
 
 1247 
 
 int in time for, 480. 
 
 ULSTER— Continued. 
 
 report of, separate, what is, 185. 
 settling, 184. 
 
 should not go beyond reference, 185, 187. 
 special, what is, 18.5. 
 variation of, how made, 189. 
 warrant to settle, on whom to he served, 184. 
 who may appeal from, 188. 
 
 rests, may take accounts with, 158, 1G4. 
 
 agent, when he may charge with, 162. 
 meaning of, 158. 
 
 mortgagee, when he may charge with, 163. 
 personal representatives, as against, 159-161. 
 
 Ruleit of C!ourt, duty to observe, 155. 
 sales by, procedure on, 191-214. See Sale-s by the Couut. 
 schedule, to be attached to report of, 186, 187. 
 service of judgment, may dispense with, 152. 
 warrant to consider, 156. 
 
 parties entitled to, 156. 
 settle report, 184. 
 
 solicitor, right to practise as, 149. 
 
 to represent a class, may be appointed by, 153, 154. 
 separate, not to be appointed for class represented by plain- 
 tiff, 154. 
 
 special circumstances, may report, 159, 176. 
 
 refusal of, to report, 176. 
 
 stated account, power to inquire a« to, 177. 
 state of facts, not to be brought in before, 181. 
 Supreme Court, is an officer of, 149. 
 surcharge, in office of, how framed, 183. 
 taxation by, appeal from, 188. 
 title, reference to, as to, 209-213. 
 
 See AnHrit.\cT of Title. 
 
 unascertained persons, may advertise for, 178. 
 vacation, report made in, when void, 155. 
 warrant of, form of, 184. 
 
 service of, on parties verbally notified, unnecessary, 182. 
 several, not to be issued, 184. 
 to bring in accounts, when dispensed with, 182. 
 consider, when to issue, 155, 156. 
 
 return of, proceedings on, 167. 
 service of, 156, 
 proceed on accounts, form of, 182. 
 settle report, service of, 184. 
 
".!' 
 
 --'%- 
 
 1248 
 
 MASTEU—Cotitiniied. 
 
 INDEX. 
 
 Kl'f^f.^r^ri:- 
 
 % 
 
 wilful neglect und default, may inquire as to, 157, 158, 164-167. 
 
 should determine question of liability for, 
 
 170. 
 See Wilful Nkolect and Default. 
 
 witnesses, examination of, before, 177, 17H, 537. 
 
 commission to take evidence of, may certify for, 550, 
 cross-e.xamination of, before, 178. 
 recalling, before, 178. 
 
 MASTER IN CHAMBERS. See Bailahle Proceedings. 
 
 administration, judgment, motion for, when he can entertain, 148, 703. 
 appeals, jurisdiction as to, 143, 145. 
 from, to Judge, (J8<)-()<)2. 
 to, on taxation of costs, (iilS. 
 appointment of, how to be made, 108. 
 duties of, 142. 
 
 fraudulent conveyance of land, jurisdiction to set aside, 144, 791. 
 Judge, power to adjourn cases before, 145, 146. 
 
 judgment against absconding debtor, jurisdiction of, to set aside, 851. 
 by default at trial, has no power to set aside, 603. 
 under Rule 739, may grant leave to sign, 627. 
 jurisdiction of, 142, 143, 144, 145, 739, 703. 
 
 matters excepted from, 142, 143, 144, 145, 778. 
 leave to appeal, jurisdiction as to granting, 145. 
 liberty of subject, jurisdiction as to, 142, 145. 
 maiulamuK, has no jurisdiction to grant, 869. 
 mechanics' lien, power to discharge, 145. 
 oath of office, to be taken by, 109. 
 official referee, may sit with, or for, 146. 
 
 order of, to be signed by, 146. 
 powers of, when sitting for, 146. 
 orders of, to be signed by, 146. 
 
 effect of, 109. 
 partition, jurisdiction as to, 144, 778. 
 quo warranto proceedings, jurisdiction in, 144. 
 
 See CoNTROVEUTED Municipal Elections. 
 reference to Master, right to direct, 144. 
 referring causes, jurisdiction as to, 143, 145. 
 solicitor, summary application against, cannot entertain, 145. 
 statute enlarging power of Judge in Chambers, effec of, on, 144. 
 staying proceedings, jurisdiction as to, 143 145. 
 striking out pleas, power as to, 145. 
 
 MASTER IN ORDINARY. See Master— Master's Office. 
 appeal to, on taxation of costs, 698. 
 appointment of, how to be made, 108. 
 
 ^ » 
 
INDEX. 
 
 1249 
 
 ;8, 164-1()7. 
 in of liability for, 
 176. 
 Dkfault. 
 
 rtify for, 550. 
 
 entertain, US, 703. 
 
 aside, 144, 7'Jl. 
 
 of, to set aside, 851. 
 , aside, CG3. 
 gn, 627. 
 
 , 145, 778. 
 
 [UNiciPAL Elections. 
 
 i entertain, 145. 
 9, effec of, on, 144, 
 
 er's Ofkice. 
 
 MASTER IN ORDINARY— CojKinMe(i. 
 
 Chambers, jurisdiction of, in, 191. 
 
 fees of, when sitting in, 191. 
 fees of, how payable, 123. 
 oath to be taken by, 109. 
 officer of Supreme Court, 108. 
 
 High Court, 108. 
 Official Referee, may sit an, or for, 191. 
 
 MASTER'S OFFICE. See Master— Mastek in OnoiNAnT. 
 accounts, default in bringing in, penalty for, 514. 
 
 notice to commit for, service of, 614.. 
 cross-examination on, 181, 183. 
 commission to examine foreign witness, when it may issue on 
 Master's certificate, 550. 
 certificate tor, not to be granted ex parte, 550. 
 creditors claims, attendance on proof of, 373. 
 defendants, conflicting rights of, how determined, 324. 
 evidence in, how to be given, 537. 
 judgment, service of, on parties added in, 
 
 infants added in, .377, 378. 
 
 lunatics added in, 377, 378. 
 
 movnig against, 153, 223, 224, 351, 853. 
 
 long vacation not to be reck- 
 oned in time for, 480. 
 transmission of interest, 564. 
 party served with, may move against, 153, 228, 224, 361, 353. 
 when he may obtain order to continue 
 proceedings, 564, 565. 
 leave to attend proceedings in, effect of, as to costs, 373, 
 lunatic, service of judgment on, 377, 378. 
 
 appointment of guardian ad litem to, 377, 378. 
 committee of, to be made co-defendant, 378. 
 order adding parties in. Long Vacation not reckoned in time for mov- 
 ing against, 480. 
 parties, adding, in, 161, 152. 
 
 effect of, 152. 
 mortgage actions, 323. 
 
 See MoRTGAOE Actions. 
 
 proceedings in, parties served with judgment may attend, 352. 
 
 costs of, attending, 362. 
 to notify plaintiff, 352. 
 not attending, not entitled to notice, 352. 
 production of documents in, 177, 178. 
 
 default in, how punished, 514. 
 J.A. 79 
 
 irtv 
 
 
1250 
 
 INDEX. 
 
 •Hf':. 
 
 MASTER'S OFFICE— Continued. 
 
 production of documents in, motion to commit for, /jH. 
 
 order for, service of, 515. 
 security for costs, may be ordered in, 945. 
 witness, evidence of, when to be given rird voce in, 537. 
 
 examination of, in, 177, 178. 
 
 recalling, in, 178. 
 
 •^'MATTER." 
 
 meaning of, in Act and Ruleii, 2. 
 
 MEMORIALS. See Evidence — Qdietino Titles — Sales iiy the Court 
 
 MERCHANTS. See Expeuth. 
 
 Court may obtain assistance of, 201. 
 
 MERGER. 
 
 equitable doctrine as to, made rule of law, 47, 48. 
 
 MIDDLESEX. 
 
 assizes for, when to be held, 91. 
 
 MILEAGE. 
 
 service of mesne process when not allowed on, 919. 
 
 MINUTES. See Judgment. 
 
 MISJOINDER. See Parties. 
 
 MISTAKE OF TITLE. See Improvements— Occupation Rent. 
 improvements made under, allowance for, 170. 
 
 MULTIl'LICITY OF SUITS, 
 avoidance of, 45. 
 how avoided, 17. 
 jurisdiction of Court, as to, 11, 17. 
 
 MONTH. See Time. 
 
 MONEYS IN COURT. See Payment into Court— Payment out of 
 Court — Stop Order. 
 investment of, in Dominion stock, 252. 
 
 interest credit of, 252. 
 «tock, purchase of, authorized for investment of, 252. 
 Toronto General Trust Co., may bo empowered to invest, 253, 254. 
 
 MORTGAGE. See Mortoage Actions — Mohtoaoee — Mortgagor. 
 
 acceleration of payments, by default, 395, 396. 
 
 relief against, 395, 39G. 
 Accountant, held by, proof of claim on, 226, 
 agreements affecting, effect of, 229. 
 
 
INDEX. 
 
 1251 
 
 3AI,K8 BY THE COrttT 
 
 PATioN Rent. 
 
 URT — Payment out of 
 
 E — MORTOAGOU. 
 
 MORTG AOVj—ContiniictL 
 
 assi^jneo of, rijjlit of, to I'ocover inouey not advanced, 22(). 
 attornment clauHe in, effect of, '28.'{. 
 collateral advantat^es, obtained by niortjjagee, '2'2(i. 
 conHideration for, inquiry as to, 22(i. 
 
 lien for, when inortj^age void, 233. 
 consolidation of, when allowed, '2*2(5, •2*27. 
 debt, evidence as to, '2'2r>, *22(). 
 derivative, account on, 2*2(>. 
 
 discharge, certificate of, mortgagor not bound to accept, 240. 
 documents relatinj,' to, delivery up of, on redemption, 231), 240. 
 equity of redemption divided, redemption when, 235, 23(>. 
 
 rifjhts of purchasers inter ne, 23C, 
 foreit;n currency, payable in, 233. 
 insurance moneys, mortgagee when accountable for, 231"2. 
 
 premium for, when recoverable, 231, '232. 
 insure, statutory power to, 231. 
 interest, recoverable under, 228. 
 
 exorbitant, 228. 
 
 increased, stipulation for, 22H. 
 
 payable in advance, how allowed in mortgage action, 22!). 
 
 payable without, effect of, 228. 
 jurisdiction of H. C. .1., as to, 11, 14. 
 lost, indemnity to party redeeminj^, 240. 
 merger of, a question of intention, 227. 
 money not advanced on, when recoverable, 226. 
 payments on account, appropriation of, 230, *231. 
 proof of claim on, 22.'). 
 
 by Accountant, 220. 
 tacking claims to, when allowed, 227. 
 tender, effect of, 229. 
 
 validity of, when not impeachable in INI. O., 226. 
 void, lien for consideration, 233. 
 
 MORTGAGE ACTIONS. See Master— Master's Office— Mortoaoe 
 
 — MoRT((ACJEE — MORTOAOOR — SaI.ES BY THE CoURT. 
 
 abortive sale, foreclosure after, when ordered, 387. 
 account, by mortgagee owning equity of redemption, 323. 
 
 chaufie of, 31)1, 31)4, 3!)5. 
 
 evidence on taking, 22.5, 226. 
 
 Master to take, 225, 226. 
 
 notice of taking, to be served, 222, 224. 
 
 parties entitled to attend taking of, 225. 
 
 redemption action, in, 238, 239. 
 
 taking of, by Master, 225, 226. 
 
 stated, may be relied on in M. O., 226. 
 
1252 
 
 INDEX. 
 
 MORTGAGE A(JTIONH— C'()«/(«i/.</. 
 
 account, BubHeqnent, to be taken by Manter, 2H7. 
 Accountant, proviiif^ claim in, 'i'2>i. 
 
 adminifltrator of niortnafjor, wben he may be appointed })y H. C J., 
 
 in, ;);t2. 
 affidavit of claimant, prima facie evidence, 225. 
 
 non-payment, for final order, HKO, Hid. 
 
 by whom to bo made, U'.M. 
 arrcarn, stay of proceedin^H in, on payment of, Hidj, U!((». 
 assignment, on redemption, 2H1), 240. 
 caiifles of action that may be joined in, HH2, 383. 
 certificate of bank manager, for final order, .H!(0, 3!*1, ijlti. 
 certificates to be produced, as to inciinibranceH, 221. 
 chanf»e of account, after report, effect of. 31)4. 
 
 final order, when granted after, 394. 
 claims doubtful, not to be adjudicated on e.v parte, 223. 
 
 proof of, 22.'), 22f). 
 co-defondanta, disputes between, 324. 
 conflictinf^ rif^hts of defendantH, how determined, 324. 
 consolidation of mort^^ajjes, when allowed, 220, 227. 
 conveyance, on redemption, 231), 240. 
 
 settlement of, on sale, 207. 
 
 when infants interested, 787. 
 costs, tacking to mort({agc debt, 227. 
 
 See Costs. 
 County Court Clerks, certificate, when recjuired, 222. 
 covenant, action on, after sale under power, 3!»i. 
 
 rfectof, 393. 
 in pleadinf?H 18. 
 
 enforcint^ judf,'ment on, after fori '■"= 
 relief on, foundation for, should 
 how ({ranted, 38.'), 38(i. 
 credit, ».Dtice of, after report, 3114. 
 
 service of, 31)4. 
 Crown, not foreclosed, except by consent, 38(i, 387, 3'.r2. 
 day to show cause, when reserve<l in jud^;ment, (U2. 
 
 unnecessary, ()12. 
 death of mortgajjee, before day fixed for redemption, effect of, 392. 
 default of appearance, judgment on, 012, 013, (114. 
 defence, judgment on, 012. 
 in payment, how proved, 31)0, 540. 
 deficiency, order for payment of, how obtained, 385, 380, 31)3. 
 
 not granted when no personal liability, 
 
 393-4. 
 delivery of possession, plaintiff may apply for, 383. 
 deposit, for sale, when necessary, 387-389. 
 
 application of, after abortive sa'e, 381). 
 
INDPiX. 
 
 1259 
 
 MORTGAGE kCTlO'Sfi— Continued. 
 
 (luponit, for Hale, uppliciition of, when proceedR of huIo iiiHuttiuieiit, 
 
 aHi). 
 defendant, when entitled to return of, 89<». 
 diBpenHin^ with, HH\). 
 incrcivst) of, wlien ordered, iWH, H89. 
 indorsement on writ ronpectin^j, 388, 
 not required from infant, 018. 
 diHrnissal of, when hronght for default in payment of instalment, 31)6. 
 dispute note, filed, judgment liow obtained after, (114. 
 
 defenceH available under, HlCi. 
 documents, delivery up of, on redemption, 23i), 240. 
 dower in surplus. Master may report as to, 170, 238. 
 equity of redemption, mort^afjeo owninjj, account by, 323. 
 
 parties interested in, may be added in M. O., 
 
 823. 
 
 Hee Egi;n V of Ukdk.mption. 
 
 execution creditors, priority of, 222, 233, 234, 238. 
 evidence in proof of cilaim, 22"). 
 
 by Accountant, 22<). 
 final order, when granted, 31)0. 
 
 account clian^^ed after report, 394. 
 application for, how made, 390. 
 effect of, 392. 
 entry of, .52(5. 
 
 foreclosure for, in lieu of spb, must be obtained in Court, 
 
 387. 
 notice of motion for, when necessary, 391. 
 refused, grounds for, 391, 392, <j13. 
 Bale, for, 238. 
 
 in lieu of foreclosure, 387. 
 foreclosure, action for, stops. Statute of Limitations, 230. 
 after abortive sale, when ordered, 387. 
 chartered bank, right of, to, 380. 
 Crown, not granted against, 38G, 387, 392. 
 
 except by consent, 387. 
 final order of. See mipra — final order, 
 how obtained in redemption action, 239. 
 mortgagee entitled to, 386. 
 municipal corporation, right of, to, 38(5. 
 order for, to be entered, 6.51, (552. 
 opening, 225, 235. 
 
 at instance of mortgagor, 392, 393. 
 
 terms of, 393. 
 by mortgagee, 393. 
 pledgee of chattels, not entitled to, 386. 
 

 t 
 
 1254 
 
 INDEX. 
 
 MORTGAGE ACTIONS— CoH/Znufirf. 
 
 foreclosure, rifiht of mort^afjee to, may be lost, 387. 
 
 sale may be ordered in lieu of, 887, 388. 
 
 * subsequent incumbrancers, of, '225, 3!)0. 
 
 proving claim, after, 225. 
 redeeming, mav proceed for, 
 
 235. 
 — see infra — redemption. 
 
 improvements, by mortgagee, what arc allowable, 227. 
 incumbrances, redeemed, interest all iwed on, 228. 
 
 when they cannot be kept on foot, 237. 
 I'eference as to, when refused, 221. 
 
 unnecessary, 221. 
 subsequent. Master to inquire as to, 221. 
 inc\imbrancers added in M. O., right of, to sale, 38!). 
 adding in M. O., 222, 223. 
 certificates as to, required in JNI. O., 221, 222. 
 disclaiming, not entitled to costs, 225. 
 disputes between, 234. 
 foreclosure of, 225, 3(10. 
 parties to writ, notice to, in M. O., 221. 
 prior, when necessary parties to writ, 221. 
 priority of, 222, 233, 234. 
 
 redeeming, may foreclose otlier < rties, 235. 
 infant defendants, judgment against, liow obtained, (■)13, 014. 
 
 day to show cause, when to be 
 reserved in, (')12. 
 inquiry whether sale or foreclosure more bene- 
 ficial for, fil3. 
 .-.stalment, action for default in payment of, dismissal of, when 
 ordered, 3!t5. 
 action for default in payment of, stay of, when ordered, 
 
 3!)(1. 
 default in payment of, accelerates payment of whole 
 debt, .395, 390. 
 insurance money, mortgagee when acccuntable for. 231. 
 
 application of, to restoring buildings, 231. 
 interest, action for default in payment of, 395. 
 arrears of, recoverable, 228. 
 compound, when recoverable. 228. 
 incumbrances redeemed, what allowed on, 228. 
 payable in advance, 229. 
 rate of, 228. 
 
 after day of payment 228, 229. 
 recoverable, 228. 
 rests. See Rests. 
 
missal of, wlien 
 
 INDEX. 
 
 MORTGAGE ACTIONS— Continued. 
 
 1255 
 
 interest, simple, /jr/nia /rtciV, payable, 228. 
 
 Statute of Limitations, how far a bar to recovery of, 229, 280. 
 subsequent, what allowed, 237. 
 judgment, assignment of, on redemption, 24'). 
 
 . creditor of mortgagor, solicitor of, may be served, 173. 
 in, to be entered, fiJil, 0.52. 
 against infants, (J12 3. 
 forms of, 052, 6.53. 
 
 motion to vary, by parties added in M. O., 223, 224. 
 on prtccipe, ()13. 
 
 forms of, 614, 1048-1050. 
 exti'aordinary relief not granted, (114. 
 interlocutory injunction cannot be contiiiued 
 by, 614. 
 motion for, on admissions in pleadings, 664, 665. 
 stay of proceeding^' when ordered after, 396. 
 when obtainable in Cliambers, 612, 613. 
 
 on precipe, 613. 
 where to be entered, 614. 
 
 Us pendem, doctrine of, 222. 
 
 lost mortgage, indemnity to party redeeming, 240. 
 
 lunatic defendant, judgment, how obtained against, 614. 
 
 Master, may add parties, in his office, 222, 
 
 mechanics' lien, adding parties claiming, 223. 
 
 merger of incumbrances, 227. < 
 
 mortgage, true consideration for, evidence as to, 220. 
 
 validity of, when not impeachable in M. O., 226. 
 mortgagee in possession, liability of, 232, 233. 
 
 priority of, 234. 
 
 mortgagor, notice to, in Master's office, when requisite, 224. 
 motion for judgment in, on admission in pleadings, 644, <>45. 
 new day, application for appointment of, when account changed, 
 
 394, 395. 
 non-attendance in M. O. of parties served, effect of, 225. 
 notice of credit, when account clianged, 394. 
 
 proceedings in M. O., to be served on defendant by writ, 224. 
 
 parties added in M.O., 
 222. 
 occupation rent, mortgagee when liable for, 168, 232, 233. 
 opening foreclosure by mortgagor, 392, 393. 
 mortgagee, 393. 
 
 order adding parties, motion to discharge, 223, 224. 
 parties added in M. O. may move against order, 223, 224, 323, 324, 
 
 time for, 223, 224. 
 
tv ■ ■%- 
 
 1256 
 
 
 INDEX. 
 
 
 
 MORTGAGE ACTIONS- 
 
 —Continued. 
 
 
 
 parties 
 
 added in M. 0. 
 
 claiming priority to plaintiff, 
 
 224. 
 
 
 
 
 not appearing, to be foreclosed, 225. 
 
 
 
 
 notice to be served on, 222. 
 
 
 
 
 adding in M. 
 
 ., 222, 223, 323. 
 order for, when obtainable. 
 
 323. 
 
 
 
 
 setting aside, 223 
 
 224, 323, 
 
 324. 
 
 defendants, 321, 322. 
 
 prior mortgagees, when not to be added as, 322. 
 I sureties may be joined as, 321. 
 
 incumbrancers, liow made, 221. 
 not appearing, how served, 224. 
 notice of taking accounts to be served on, 222, 224. 
 payment of redemption money, how obtained, 240. 
 effect of, 230. 
 after report, effect of, 394, 305. 
 
 reference as to, when ordered, 395. 
 appropriation of, 230, 231. 
 extending time for, 236, 237. 
 immediate order for, 386. 
 
 when refused, 387. 
 personal order for, may be claimed, 382. 
 plaintiff cannot refuse to accept, 306. 
 to stop Statute of Limitations, by whon) to be made, 230. 
 pendente lite, persons ac(iuiring interests, when necessary parties, 221. 
 pledgee of chattels, not entitled to foreclosure, 386. 
 possession, mortgagee in, liability of, 232-233. 
 
 plaintiff may claim, 382. 
 pnecipe. See xK^jm— judgment, 
 prior mortgagee, when to be made a party, 322. 
 
 assignee of equity of redemption, when entitled to 
 attack security of, 322. 
 priorities of incumbrancers, 233, 234. 
 deeds of same date, 234. 
 settled by judgment, effect of, 234. 
 
 pro confesso, former practice as to, abrogated, 224. 
 proof of claim, in, 225. 
 purchase money, at sale, how applied, 238. 
 
 residue, how disposed of, 238. 
 railway company, mortgage, how enforced against, 387. 
 receiver, appointment of, as against railway company, 387. 
 reconveyance on redemption, 239, 240. 
 redemption, action for, 238, 239. 
 
 account to be taken in, 238, 239. 
 
 default in, subsequent accounts, 239. 
 
 ^^m^imimmi 
 
INDEX. 
 
 MORTGAGE ACTIONS— Con(/HM«/. 
 
 1267 
 
 tion, when entitled to 
 
 redemption, action for, dismissal of, for default, 897. 
 
 effect of, 397. 
 
 costs, 397. 
 
 foreclosm-e of plaintif. m, 397. 
 
 subsequent incumbrancers in, 
 
 397. 
 judfjmeiit, on imecijx', in, (>13. 
 
 offer to redeem, whether necessary in, 322. 
 
 sale, when not ordered in, 322. 
 
 subsequent mortgagee bringing, 322. 
 
 when instalment only, inarrear, 395. 
 
 by mortgii;or, effect of, 237. 
 
 conveyance on, 239, 240. 
 
 when mortgage comprises realty and 
 
 personalty, 23(1. 
 default of, 23,5. 
 
 documents, delivery up of, on, 239, 240. 
 equity of redemption divided, 235, 23(5, 240. 
 extending time for, 23(i, 237. 
 how directed, in action for sale, 235. 
 
 foreclosure, 235. 
 Master to appoint day for, 225, 234, 235. 
 money, how paid out of bank, 2t0. 
 new day for, when appointed, 23G, 394, 395. 
 omission to appoint day for, how remedied, 230. 
 reconveyance on, 239, 240. 
 time for, allowed, 235. 
 
 when shortened, 388. 
 where several persons entitled to redeem, 230. 
 Registrar's certificate, required as to nicumbrancers, 221, 222. 
 rents and profits, mortgagees' liability for, 232, 233. 
 
 account for, how affected by allowance for im- 
 provements, 227, 228. 
 report, date of, 23(5. See Master. 
 confirmation of, 236. 
 contents of, 237. 
 correcting error in, 23(5. 
 rests, mortgagee accounting with, 23.^. 
 sale. See mpra — redemption. 
 
 action for, stops Statute of Limitations, 230. 
 
 conduct of, when defendant may be required to take, 387, 390. 
 
 defendant requiring, to deposit $80 ; 387. 
 
 may be required by plaintiff to take con- 
 duct of, 387, 390. 
 when entitled to, 388. 
 
1258 
 
 INDEX. 
 
 MORTGAGE ACTlOfiH-Continued. 
 
 sale, deposit, when necessary to obtain, 887-389. 
 
 duty of Master, not to sell whole, when part sufficient, 2;58. 
 final order for, 288. 
 
 not (granted in Chambers before day for redemp- 
 tion, 388. 
 
 immediate, when granted, 388. 
 
 may be ordered, instead of foreclosure, 387, 388. 
 
 claimed by mort^afiee, 385. 
 mode of, 238. Sec 8alks iiy tii?: Couut. 
 mortgagee, right of, to, 385. 
 
 how lost, 387. 
 by deposit, wlien not entitled to, 380. 
 not ordered, except time for redemption first given. 3H7. 
 order for, on prircipf, in lien of foreclosure, how obtiiined, 3H!). 
 
 to be entered, f)51, 052. 
 subsequent incumbrancer, when entitled to, 389. 
 
 not entitled to, 380. 
 time allowed for redemption, in actions for, 235. 
 service, on parties to writ, of notice of proceedings in M. ()., 224, 
 proof of, in M. O., 225. 
 
 s.'x months, allowed for redemption, 235. 
 
 plaintiff in redemption action, 
 
 when not entitled to. Hi);"! 
 
 interest, or notice of payment, mortgagee, when entitled 
 
 to, 395. 
 
 Sheriff's certilicate required as to incumbrances, 221. 
 
 form of, 222. 
 Statute of Limitations, how far a defence in, 229, 230. 
 
 payments to stop, by whom to be made, 230. 
 staying proceedings in, on payment of arrears, 395, 390. 
 
 subsequent default after, 390, 397. 
 subsequent accounts, 237. 
 
 in redemption action, 239. 
 incumbrancers, adding, as parties in M. O., 222, 223, 323. 
 
 See .si//)m— parties, 
 action for rp.demption by, 322. 
 foreclosure of, in M, O., 225. 
 impeach'.ng prior mortgage, 322, 
 obtaining sale, has no priority for costs, 322. 
 sale, not entitled to, in action for redenii)- 
 tion, 322, 386. 
 when entitled to, 389. 
 surety, rights of, in, 380. 
 tacking, how far allowed, 227. 
 
INDEX. 
 
 1269 
 
 8 before day for redemp- 
 
 MOl.xGAGE ACTIONS— Co;i(i»ii/erf. 
 
 tenant in common, right of, to redeem, when co-temint barred by 
 
 statute, '230. 
 tender, effect of, 229. 
 title deeds, order for delivery of, may be obtained, HH4. 
 
 MORTGAGEE. See Mohwage — Moutgaok Actio.ns— Mojn(iA(i()i!, 
 Accountant, proof of claim by, as, 220. 
 account by, 1()3, 1()8. 
 affidavit of, proving claim, 22"). 
 agreements, affecting debt of, effect of, 229. 
 
 by, with mortgagor, not binding on subsequent ircum- 
 brancer, K17, l(i8. 
 arrears of interest, recoverable by, 108. 
 
 set-off of, by, when in possession, It'iS. 
 
 assignee of, rights of, 220. 
 
 attornment clause, effect of, 108. 
 
 bailiff, when he may charge for services of, 172. 
 
 chattels, of, right to foreclosure, . 'WO. 
 
 collateral advantages obtained by, 220. 
 
 coneolidation of mortgages, when allowed, 220, 227. 
 
 costs, right to, 000. 
 
 and expenses recoverable by, 172, 227. 
 death of, before day li.xed for redemption, effect of, 892. 
 debt for which mortgage held, proof as to, 225, 220. 
 deficiency, may obtain order for payment of, H85, 380. 
 derivative, account by, 220. 
 
 equitable, by deposit, when not entitled to sale, 380. 
 estoppel of, 227, 233. 
 expenses recoverable by, 172. 
 
 foreclosure, riglit to claim. See MourtiAOK Actions. 
 improvements by, when allowed, 170, 171. 
 insurance by, effect of, 231, 232. 
 
 mortgagor, effect of, 232. 
 
 premium for, when recoverable, 172. 
 
 whether he can recover debt as well as insurance, 232. 
 
 interest, compound, when liable for, 103. 
 recoverable by, 228, 229. 
 
 on prior incumbrance redeemed, 228, 
 rests. See infrn — rests, 
 lien for consideration, when mortgage void, 233. 
 money not advanced, when recoverable by, 220. 
 occupation rent, liability for, 108, 232, 233, 
 
 set-off of arrears of, against interest, 108. 
 partition, when entitled to, 779. 
 
c 
 
 
 1260 
 
 INDEX. 
 
 MORTGAGEE— CoHf/KMcrf. 
 
 payments to, appropriation of, 230, 231. 
 
 tender of, effect of, 229. 
 possession, in, liability of, 1()3, 164, 232, 233. 
 See MoBTOAOE Actions. 
 
 prior, assignee of equity of redemption, when entitled to attack, 322. 
 
 incumbrance, paid by, 172. 
 
 owning equity of redemption, account by, 323. 
 
 redemption of, action for, parties to, 322. 
 
 sale, when not ordered as -gainst, 322. 
 
 subsequent incumbrancer, rights of, as against, 322. 
 
 when not to be made party to foreclosure action, 322. 
 priority of, how determined, 234. 
 proof of claim by, '22!). 
 pnitne, accountable to prior, for profits of land, 167. 
 
 not bound by agreement between mortgagor and prior mort- 
 gagee, 167, 168. 
 railway company, how entitled to enforce security against, 387. 
 receiver, when appointed against, 215, 216. 
 rents, when accountable for, 232,233. 
 rests, when liable to account with, 163, 233. 
 sale, right to pray for, 385. 
 selling under power, when authorized, 230. 
 
 proceeds of, how applied, 230, 231. 
 surplus proceeds, duty as to, 230, 231. 
 Statute of Limitations, as a defence against, 229. 
 
 by, 164, 229, 230. 
 subsequent, when not entitled to sale, free from prior mortgaye. 'M[\. 
 surety, may obtain order for payment against, 385, 386. 
 tacking, how far allowed, 227. 
 tender to, effect of, 229. 
 
 validity of security of, when not impeachable in M. O., 22(5. 
 voluntary, priority of, 234. 
 waste by, when restrained, 16. 
 wilful neglect and default, liability for, 166, 167. 
 
 MORTGAGOR. See Mortoage — Morxoage Actioxs — Mobtoaokk. 
 
 arson, by, effect of, on insurance, 232. 
 
 assignee of, liability of, to mortgagee, 321. 
 
 ejectment by, 48. 
 
 insurance by, effect of, 232. 
 
 rent, mortgagee when liable to, for, 232. 
 
 rests, mortgagee when liable to account to, with, 233. 
 
 surety of, liability of, for deficiency, 321. 
 
 waste bv, when restrained, 16. 
 
::| 
 
 INDEX. 
 
 1261 
 
 MOTION. See Administration — Ciiambkks- 
 Tbiu.. 
 
 DiviaioNAii ('orRT — Nbw 
 
 curitv against, H87. 
 
 ,ble in M. O., 22(5. 
 
 abandoned, costs of, 478, .517. 
 account, for, ()3o, (iSfJ. 
 
 affidavit in support of, (i.SO. 
 notice of, to be fiiven, (iH6. 
 adjournment of, may be ordered, .'JlH, !i'20. 
 
 terms may be imposed on,. 520. 
 affidavit, may be used in support of, .54S. 
 cross-examination on, .543. 
 to be mentioned in notice of, 558. 
 
 filed, 558. 
 withdrawal of, cannot prevent cross-examination. 558. 
 application to Court or Jud^e, to be made by, 51G. 
 attendance on, 479. i 
 
 award, against, notice of, form of, .521. 
 costs of, when Court has no jurisdiction, 478. 
 evidence vivA voce in support of, how obtained, 544. 
 I'.r parte, when entertained, 517. 
 interlocutory, further evidence on, 547. 
 irregularity, to set aside proceedings for, 520. 
 
 notice to specify irregular- 
 ity, 520, 521. 
 judgment, for, 6.S7. 
 
 any application may be turned into, ()45. 
 Chambers, in, adniinisti-ation action, 5211-4, 7<)4, 767. 
 mortgage action, (512, (ilS, 
 partition action, 777, 780. 
 when writ specially indorsed, ()24-(i32. 
 Court, powers of, on, ()41. 
 defendant, by, 642. 
 discretion of Judge, on. Court of Appeal will not 
 
 review, ()42. 
 infants, as against, 641. 
 
 in mortgage actions, 612-3. 
 leave to set down, when necessary, 639. 
 on admissions in pleadings, ()41-()44. 
 letters, 644, 645. 
 when counter-claim set up, 644. 
 documentary evidence, when it ma> be made on, 
 
 641. 
 time for setting down, 6.39. 
 eave to sign judgment, on specially indorsed writ, for, 624-634. 
 may be turned into motion for judgment, 645. 
 notice of, affidavit of service of, when to be filed, 478, 55V. 
 failure to serve, effect of, 518. 
 
1262 
 
 INDEX. 
 
 MOTION— font iinml. 
 
 notice of, irref^ular, effect of, 477, 478. 
 
 leave to serve when neceHsary, 520. 
 
 to commit client, when it may be served on solicitor, 514. 
 set aside irregular proceedings, form of, .')'20-.')21.' 
 award, form of, 521. 
 
 too short, how waived, 478. 
 
 to be two clear days', 477. 
 
 when necessary, 517. 
 
 when it may be served without leave, 520. 
 order nisi abolished, 510. 
 
 Riilf nnder which made, need not be specified, 478. 
 rule nixi abolished, 51t). 
 
 service of notice of, when it may be made without leave, 520. 
 setting down, 521, 523. 
 
 mode of, 522. 
 unnecesFary appearance on, costs of, 478, 479, 911. 
 witness, attendance to give evidence on, how procured, 544. 
 
 MUNICIPAL ELECTIONS. See Controverted Municipal Elections. 
 
 N 
 
 NEGLECT AND DEFAULT. See Wilful Neolect and Default 
 
 NEW TRIAL. 
 
 begin, right to, on motion for, 663. 
 
 conditional on payment of costs, how rescinded on non-payment, (KiH. 
 
 court dissatisfied with verdict, no ground for, 662. 
 
 discovery of new evidence, when ground for, 596. 
 
 evidence, conflicting, 641. 
 
 admission or rejection of, when no ground for, 660. 
 grounds for, 660-665. 
 
 Judge dissatisfied with verdict, no ground for, ()62. 
 jury, omission to swear, no ground for, 661. 
 
 verdict of, against evidence, when ground for, 661. 
 misdirection, when ground for, 660. 
 motion for, to Divisional Court, 659. 
 Court of Appeal, 666. 
 
 time for, 666. 
 copies of shorthand notes required on, 669. 
 grounds for to bts stated, 660, 
 in High Cov.rt case tried in C. C, 601. 
 County Court case, 950. 
 
INDEX. 
 
 1263 
 
 solicitor, 514. 
 r)20-52i; 
 
 leave, 520. 
 
 LU-ed, 544. 
 jsiciPAii Elections. 
 
 ECT AND Default. 
 
 m non-payment, OOS. 
 
 J2. 
 6. 
 
 Dund for, COO. 
 
 i)62. 
 
 I for, 661. 
 
 I on, 669. 
 601. 
 
 NEW TRl Ah— Continued. 
 
 motion for, in County Court case, tried in H. C. J., (JOl. 
 
 notice of, to bo seven days', (iC)',). 
 
 omission to set down, effect of, (itii). 
 
 powers of Court on, 640, 641. 
 
 aettint^ down, 6(i'J. 
 not f^ranted, when, 6()0. 
 
 omission of evidence at trial, when no f^round for, 505, 506. 
 partial, may bo granted, (i62, 6('>3. 
 reply, right of, on motion for, 663. 
 rescinding order for, for non-paynaent of costs, 663. 
 smallness of damages, where ground for, 661. 
 substantial wrong, necessary for, fitil. 
 surprise, for, 505, .TOtl, 662. 
 time for moving for, ()66. 
 
 verdict, contradictory in cross-actions, as ground for, ()62. 
 against evidence, when ground for, 601, 0()2. 
 unsatisfactory, whei, ground for, 061. 
 
 NEXT FRIEND. See Administuat'ion — Discovkuy— Infant— MAitniKn 
 Woman. 
 costs, liability of, for, 334, 340. 
 
 demurrer, objection for want of, not to be taken by, 339. 
 infant, for, 833, 334. 
 married woman, when to sue by, 330. 
 
 mother of infant may apply for its custody, etc., witliout naming, 65. 
 omission to name, objection for, liovv talten, 339. 
 
 waiver of, 340. 
 solvent, must be, for married woman, 340. 
 
 need not be, for infant, 333. 
 unprofessional, cannot act as solicitor, 340. 
 who may be, for married woman, 340. 
 
 infant, 333. 
 writ of summons, may not be issued by, in person, 270, 340. 
 
 NEXT OF KIN. See Administration. 
 
 NONSUIT. 
 
 effect of, judgment of, 665. 
 judgment of, when set aside, 665. 
 
 pleadable in bar of another action, 665. 
 
 NOTE CLOSING PLEADINGS. 
 
 may be entered on default of defence, 426. 
 
 " NOT GUILTY BY STATUTE." 
 
 defence of, may be pleaded, 442, 443. 
 
 to contain reference to statute, 443. 
 
1264 
 
 INDKX. 
 
 1 
 
 
 ''f 
 
 NOTICE. See AnHruACT of Title — Court of Appeai, JrnoMrNT — 
 MouTOAOK Actions — Motion — Notice of Action —Notuk op 
 Motion — Notico of Thiai, — Balkh nv the Couht — Writ of 
 Summons. 
 
 of appeal, to Court of Appeal, 70-81, 670. 
 
 form of, t>70. 
 from report, fi!)/). 
 examination of witneHS in support of motion, 544. 
 
 on whom to be served, 544. 
 motion. See Notice of Motion. 
 proceedings in action, parties not entitled to, 352. 
 trial. See Notice of Tiuai,. 
 
 printod, or written, to be, 4(12. 
 
 regiaterjxl instrument, of proving by secondary evidence, ")5'.t. 
 
 stylo of caiino in, 4()H. 
 
 secondary evidence, of intention to prove documents by, .")")'.). 
 
 term's, abolished, 107, 
 
 to admit documents, may be given, 559. 
 
 costs of proving, when not given, ',(00. 
 
 form of, 551). 
 
 inspect documents, when to be served, 511, 512. 
 produce documents referred to in pleadings, 510, 511. 
 
 aflidttvit, 510, 511. 
 
 form of, 511. 
 service of, how proved, 543. 
 verbal, insufficient, 4()2. 
 
 will, of proving by secondary evidence, 550. 
 written, requisite, 462. 
 
 NOTICE OF ACTION. 
 
 unnecessary, when injunction claimed, 58, 271. 
 
 NOTICE OF MOTION. See Administration. 
 
 amendment of, 4(')0. 
 
 for administration, address of plaintiff, or his solicitor, required on, 
 
 279. 
 commission to take evidence, form of, 550. 
 judgment in default of defence, (519. 
 See Judgment. 
 
 partition, address of plaintiff, or his solicitor, required on, 279. 
 service of, may be dispensed with, 474. 
 
 by advertisement, etc., may be ordered, 474. 
 
 to commit client, service of, on solicitor, 514. 
 stay proceedings, necessary, 44. 
 
INDEX. 
 
 1265 
 
 NOTICE OF TRIAL. 
 
 amendmuiit of, 58!>. 
 
 at bar, to be ^iven to UeKistrar, 590. 
 
 dismiHHalof action, for not serving, .'77. 
 
 form of, rim. 
 
 of County Court case at Hi({h Court Kittin^H, 001. 
 
 Hif?h (!ourt case at C. C. Sittin>»H, tlOl. 
 remanet, of, 5!l'2. 
 short, what is, .')8!). 
 ten (lays' renuired, 589. 
 when it may be f^iven, 585. 
 who may give, 585. 
 
 NOTICE TO ADMIT. See Noiice. 
 
 NOTICE TO PRODUCE. See Notice. 
 
 NUISANCE. 
 
 expert, employment of, to report as to how it may be abated, 261. 
 
 NUNC PRO TUNC. 
 
 entry of judgment, when order for, may be made, 648. 
 
 o 
 
 OATH. 
 
 meaning of, in Act and Rnlen, 3. 
 of office, by Judge, 9. 
 
 administration of, 9. 
 officers of Court, 109. 
 
 administration of , 109, IIU, 123. 
 
 (OBJECTIONS. See Abstract of Title. 
 
 OCCUPATION RENT. 
 
 devisee, liability for, 169. 
 
 heir, liability for, 169. 
 
 interest on, when cha.^eable against a mortgagor, 168. 
 
 mistake of title, person in possession under, when liable for, 169. 
 
 mortgagee, liability for, 168. 
 
 purchaser, liability for, 168. 
 
 tenant in common, liability for, 168. 
 
 trustee, liability for, 169. 
 
 vendor, liability for, 168. 
 
 OFFICE COPY. See Copies. 
 
 J.A. 80 
 
1266 
 
 INDEX. 
 
 OFFICERS OF COURT. Soo Tiller of the vnrwm ofliroy. 
 Accountant of Supreme Court, lOH. 
 
 •luty of, 117 
 appointment of, liow made, 107, lOH. 
 
 before, atteii(ianco on, 47!)> 
 attendance before, l.'M. 470. 
 auxiliary to each other, I'M. 
 booitH of, to bo open to iimiiection. l;tO, 2 J I. 
 
 buBinesa not to be transacted by, unleHH upon peraonal attciKiaiici' nf 
 
 jiarty. or Iuh Kolieitor, Hi I. 
 except priH'eediiijjH unilur (^iiictin^; 
 'I'itleH Act, 800 
 tninBactod at officer'B Iioumo, 111 I. 
 Clerk of UecordH and Writs, 108. 
 Clerk of th« Proco-<H, lOH. 
 comnuitatioii of fees of, 112. 
 
 Order in Council for, to be laid before 1.. A.. 
 
 12H. 
 
 Deputy C'lerku of tlie Crown, 112, IIH. 
 
 Deputy Uepstrars, 112, IIU. 
 
 doubts as to position of, may be dotorininod by Itiili-n, 10!(. 
 
 duties of, may bo regulated by Lieut. -(ioveriior, ICll. 
 
 yi'((/,.'< of Court, 108. 
 extracts from Iwoks of, foes payable for, liJO. 
 fees of, connnutatioii of, 112, 12H. 
 how payaldc, 108, 112. ll;{. 
 returns of, to be made by, 111. 
 
 form of. 111. 
 holidays, to be observed by, 133. 
 
 ofltices of, not to bo opened on, 131. 
 Inspector of Lej^al Onices, 120, 121. 
 Local Masters, HI, 113. 
 Local llef^istrars, 112, 113. 
 Marshall and Clerk of Assize of County of York, 111. 
 
 outer counties, 115. 
 Master in Chambers, 108. 
 Master in Ordinary, 108. 
 
 names of, may be changed by Lieutenant-Governor, 109. 
 oath to be taken by, lOil. 
 
 before wliom to be sworn, 109-110, 123. 
 oftice hours of, 133. 
 
 in vacation, 133. 
 transactiufi business out of, 134. 
 officey, where to be kept, 110, 111, 115. 
 Official Referees, e.r officio. 111. 
 
 papers, size of, for rolls and records, how regulated, 402-3. 
 precedence of parties in, 1.34. 
 
 • y**' 
 
INDEX. 1267 
 
 OFFICKRH OF COVBT—Cotithmcd. " 
 
 prooee(lin({H to bo prodiicod by, for inspection, 130. 
 
 fees for, l.'Ut. 
 Re^iHtrivr of C'oiirt of Appeal, 107-H. 
 
 DivinioiiHof H. C J., 108. 
 aHHlHtant, lOH. 
 BalaricH of, orderw in (Council ivh to, to bo laid before L. A. I'iH. 
 
 payment of, V2'.i. 
 searcli, general, fees payable for, i;JU. 
 security to be f»iven by, 110. 
 Shorthand UoporterB, 1'22. 
 Hpooial E.\atniners, 1*23. 
 Taxint,' Otticera, 108. 
 time for keeping; olficea open, 133. 
 tranamiHsion of papera, by, from local officers, 474-475. 
 
 to one another, 47.'3. 
 weekly aittinga of Court, attendance of, at, 135. 
 vacation, office hours in, VSi. 
 
 ■OFFICES OF COURT. See OKFicKita or Coitut. 
 
 dated, 4G2-3. 
 
 OFFICIAL GUARDIAN ,1/; L/r/;.y. 
 account of, in Accountant's hooka, lid. 
 
 return to bo made of, to Lieutenant-Governor, 117. 
 transfer of surplus, IKi. ■ 
 
 appointment of, how made, 11;'). 
 
 now, transfer of papers, etc., on, 117. 
 oostsof, 115, 110. 
 
 solicitor, employed by, llti. 
 return of, to bo made by, 11(1, 117. 
 duties of, 115, 253. 
 
 duty of, on being served with writ for infant defendant, 203, 21)4. 
 infant, added in M. O., how appointed, for, 377. 
 insurauce, on lands moit^aged to Accountant, duty as to, 253. 
 lunatic, when to be appo.'nted guardian ad litem for, 370, 377. 
 marria>;e settlement of inftsnt, service on, of notice of application for 
 
 sanction of Court, to, 20. 
 mortgages held by Accountant, duty of, as to, 253. 
 notice to, of sales under Devolution of Kutates Act, 788. 
 payment into Court' dispensing with, notice of application for, when 
 
 to be served on, '>17. 
 practising, may be Jobarred from, 117. 
 
 remuneration of, respecting mortgages held by Accountant, 253. 
 salary of, IJO. 
 
 order in Council as to, to be laid before the Legislature, 128. 
 service of writ on, for infant, effect of, 293. 
 
1268 
 
 INDEX. 
 
 OFFICIAL GUARDIAN AD LITEM— Continued. 
 
 settled estate of infante, service of proceedings re, 26. 
 special case in vhich infaut interested, service of, 26. 
 Iiaxes on lands mortgaged to Accountant, duty as to, 'i.^i. 
 writ of summons, when to b* served on, for infant, 2!t;(. 
 
 OFFICIAL REFERET:. Sec Refekek.. 
 
 appointment of, how to be made, lU. 
 costs, questions affecting, re^wrt as to, 97. 
 Court of Appeal may refer cases to, 'JO. 
 
 powers of, as to proceedings before, 101. 
 Divisional Court may refer cases to, Ofl. 
 examination of judgment debtors maybe taken by, 7H4, 7H7. 
 ex officio, who are. 111. 
 fees, how payable to. 111. 
 findings effect of, 100, 101. 
 inquiry, before, how conducted, 97. 
 Judge of H. C. J. may refer cases to, 95, 96. 
 
 powers of, as to proceedings before, 101. 
 judgment, cannot be awarded by, IOC. 
 Local Judge cannot refer cause to, 9(1. 
 Master in Chambers, may sit for, 146. 
 
 cannot refer cause to, 9('>, 
 Ordmary, may sit with, or for, 191. 
 order for reference to, under s. 101, form of, 97. 
 powers of, on references to, 100, 101, .")28, ,529. 
 
 under s. 101: 96. 
 
 questions referable to, under s. 101: 97. 
 references to authorized, 95, 96. 
 
 under s. 101: 96, 97. 
 8. 102: 98-100. 
 proceedings on, how carried on, 100-1, 146-7, 150-240. 
 
 report of, 97. 
 
 appeal from, 97. 98, 101. 
 
 enforcing, 97. 
 
 filing, 97. 
 
 liow confirmed, 96, 97. 
 
 motion against, 98. 
 
 powers of Court and Judge as to, 101. 
 
 under s. 102, effect of, 100. 
 
 sales by, procedure on, 191-214. 
 special circumstances, may report, 97. 
 trial of action, before, 98. 
 
 form of order for, 100. 
 
 in what cases directed, 98, 99. 
 
INDEX. 
 
 1269 
 
 , 100-1, 140-7. ir.0-240. 
 
 OFFICIAL REFEREE— CoHthmed. 
 
 trial of action, before, how to be conducted, OS. 
 
 order for, appealable, 100. 
 witnesses, may examine, 5'28. 
 
 ORDER. See Judgment — High Court ok Justice — Mastlb — Mobtgagr 
 Actions. 
 
 abandonment of, when granted on condition, 050, 651. 
 
 administration, for, to be entered as a judgment, 526. 
 
 against person not a party, how enforced, 722. 
 
 amendment of, 651, 655. 
 
 appeal from, 75-78. 
 
 arrest, for. See Bailable PnocEEDiNos. 
 
 carriage of, l-")0, 151. 
 
 Chamber, how to be signed, 526. 
 
 clerical error in, how amended, 651. 
 
 conditional, when to be taken as abandoned, 650, 651. 
 
 consent, not appealable without leave, 73, 74. 
 
 amending, 665. 
 costs, as to, when appealable, 73-75. 
 date of, how to be stated in, 653. 
 d'scretionary, when appealable, 74, 75 
 
 enforcing. Sec Attachment of Pehson— I'^xkciition— SF.gri:sTKATioN. 
 entry of, when necessary, 526, 651. 
 
 nutic pro time, 648. 
 
 omission of, 652. 
 
 tx parte, party affected by, may move to rescind, 521, 
 
 time for moving against, 521. 
 
 when it need not be entered, 651. 
 final. See MoiiruA<tE .\i'ti()Xs. 
 garnishee, for payment by, effect of, 751, 754. 
 See Attachment of Df.dts. 
 
 hours for service of, I71t. 
 
 in favour of person not a party, how enforced, 722. 
 
 injunction. See In- ,nction. 
 
 interlocutory, wlua not appealable. 77, 78. 
 
 doubts as to wluit are, how determine.!. 77. 
 what are. 77. 78. 
 what are not, 77, 78. 
 interpleader. See Intkui'lf.adku. 
 irregularity in, not to affect purchaser. 62. 
 Judge's, in Chambers, appral from, 77, 78. 
 how signed, 526. 
 Court, appeal from, 77. 78. 
 nam^ of >7udge to be stated in, 653. 
 
1270 
 
 INDEX. 
 
 OUnEB,— Continued. 
 
 jurisdiction, made without, not to affect purcliaser, ii'2. 
 lost, directed to be redrawn, 652. 
 mea' • ig of, in Act and Rules, 3. 
 minutes of, settling, procedure on, 046-649. 
 - ,' mistakes in, correction of, 654, 655. 
 nisi, abolished, 516. 
 nunc pro tunc, entry of, G48. 
 of course, how issued, 138-140. 
 
 need not be entered, ()51. 
 
 what are, 189. 
 revivor. See Oiideii to Contini-k Prockedinos. 
 omissions in, liow corrected, 654. 
 
 orif^inal, when it need not be shown at time of service, 17 I. 
 paratjrapha, to be divided into, 658. 
 partition, for, to bo eutored as jud^jment, 526. 
 payment of costs, for, effect of, 740. 
 money, for, effect of, 740. 
 
 into (.'ourt, for, effect; of, 741. 
 reference, directing when to be taken into M. ()., 150. 
 replevin. See Replkvin. 
 
 reversal of, on new matter, evidence recpiired for, (i5s. 
 service of, power of Master to rlispense with, ]5'2. 
 
 hours for, 479. 
 
 original, wlieii to bo sliown, at time of, 474. 
 sums, how expressed in, 65;5, 
 
 to continue proceedings. See Oiidi'.k to Continue Pkoceediniis. 
 vesting. See Puuchask.h — Sali;s iiv the Couht. 
 
 OllDKRS OF COURT. 
 
 unrepealed, Schedule of, 953. 
 
 ORDER TO CONTINUE PROCEEDINGS. 
 
 adding parties, by, on transmission of interest, 56'2-5(>"i. 
 appeal, when necessary pending, 565. 
 costs, may be issued to recover, 567. 
 counter-claim, on death of defendant, 5(')5. 
 
 defendant, right of. tr) compel representative of deceased plaintiff to 
 obtain, 567. 
 
 discharge of, application for, 566, 567. 
 
 when to be made, 506, 667. 
 discretion of Court as to, 565. 
 entry of, necessary, 5'26. 
 
 executor obtaining, liability of, foi' i.'osts, 564. 
 indorsement re(juired on, 566. 
 
INDEX. 
 
 1271 
 
 ORDER TO CONTINUE PROCEEDINGS— C'ontiHuerf. 
 p irty served witli judgment, when he may obtain, 5C4, ")(')."). 
 pKi^cipe, may be obtained on, SC'i, mvs. 
 representative of deceased defendant, right of, to compel pliiintiff to 
 
 obtain, 567. 
 service of, on whom to be made, 5(5.5, 500. 
 
 substitutional, may be authorized, 507. 
 time for moving to discharge, 560, 507. 
 
 by persons under disability, 560-507. 
 title of cause in proceedings subsequent to, 504. 
 when it may be issued, 502-565. 
 
 of deceased plaintiff to 
 
 PAPERS. 
 
 size of, liow regulated, 462-3. 
 transmission of, from local ollices, 47t-5. 
 
 by one officer <io another, 475. 
 
 PARTICULARS. 
 
 costs of, when disallowed, DO.S. 
 delivery of, when ordered, 430-433. 
 
 default in, striking ovii/ pleadui;; for, 433. 
 libel, in action of, when t.utli lut pleaded, 542. 
 slander, in action of, when truth not pleaded, 542. 
 
 PARTIES. See Administration — Mauuikd Woman — Master — Mortoaoe 
 Actions — Paiitn K us . 
 absent, when Court may proceed notwithstanding, 344. 
 
 rights of, may be saved, 354. 
 account, to action for, 340, 340. 
 added, when to be served with writ, 355. 
 
 proceedings when commenced, as against, 355. 
 added in M. O., may be, 151, 1.52, 222, 223, 323, 773. 
 how far bound, 152. 
 may move against judgment, 153, 223, 224. 
 
 order adding them, 153, 223, 224, 
 
 323, 324. 
 service of judgment on, 151-153. 
 
 dispensing with, 152. 
 time of commencement of action against, 152. 
 adding, power of Court as to, 351, 354-300. 
 
 application for, when to be made, 301. 
 by amendment, v.'ien not allowed, 451. 
 consent required for, 355. 
 
 must be in writing, 355,300. 
 
1272 
 
 INDEX. 
 
 FAIITIES— Continued. 
 
 adding, in Ma&iier's office. See Mabteb. 
 
 on transmission of interest pendttnte lite, 562, 563. 
 
 order for, .562-565. 
 
 application to dis- 
 charge, 566, 567. 
 indorsement on, '>%. 
 eervice of, 565, 566. 
 See OnnEU to Continuk Puoceed- 
 
 INOH. 
 
 administration, in actions for, 344-347. 
 
 administrators, as, 325. 
 
 when they represent estate, 325. 
 
 appearance by, 366-368. 
 
 . effect of, 368. 
 
 time for, 3()7. 
 
 leave to enter, may apply for, 367, 368. 
 
 assignee of chomp in action, in snit by, 345, 350. 
 
 assii,'nee8 pcuilvule lite, adding as, 3.^9. 
 
 attendance of, in offices of Court, 134, 47!t, 800. 
 
 JMaster may rej^ulate, 157. 
 
 Attorney-Cieneral, when necessary in action to set aside piitent, IH. 
 
 cesliiis que Irnstent. when necessary, 325. 3-2''), 349. 
 
 represented by trustee, 325, 327. 
 
 unnecessary, in action by r. </. t., 343, 3411. 
 
 trustee, 350. 
 cIkikc in action, in action by assignee of, 345. 
 
 classes in same interest, how represented, 340, 341. 
 
 consent of person added as plaintiff reiiuired, 355, 357, 360. 
 
 construction of instruments, in actions for, 341, 344. 
 
 contribution, addin^^ as, those from wliom defendant claims, 362-365. 
 
 corporation, officer of. when he may be made party defendant, 324. 
 
 costs. See Costs. 
 
 Court may require persons to be added as, 351. 
 
 proceed in absence of, 344, 354. 
 death of, when it does not cause abatement, 560. 
 defendants, addin^j as, 357-360. 
 
 application by, to add person as co-defendant, 355. 
 
 need not be interested as to all relief claimed, 320. 
 
 every caupe of action, 320 
 who may be joined as, 319-321, 324, 325. 
 doubtful liability, in cases cx, 324. 
 equity of redemption, interested in, how added, 314. 
 
 see MoiiTOAOK Actions. 
 exclusion of, at trial, 594. 
 executors, as, 325. 
 
INDEX. 
 
 1273 
 
 FABTIEB -Continued. 
 
 executors, as, administration action, in, 845. 
 when they represent estate, 325. 
 de leur tort in administration action. 332, 333. 
 firm, how it may sue, or be sued, 342, 343. 
 
 person carrying on business in name of, how sued, .H44. 
 fourth, whether tlieycan be brought in, 3()5. 
 heira-at-Uvw, in action for construction of wills, etc., 341. 
 indemnity, adding as, those from whom defendant claims, 3li2-3G5. 
 infants, sue by next friend, 333. 
 defend by guardian, 333. 
 joint and several liability, when there is, 319-321. 
 landlord appearing gratis, to be named as, in future pi nceedings, 314-5. 
 legatee, in action by, for legacy charged on land, 345. 
 married women, as plaintiffs, 334-33(>, 33i). 
 
 defendants, 334-33(), 339. 
 Master's office, adding in, 151, 152, 222, 223, 323, 773. 
 added in, how far bound, 152. 
 
 relief against, not ordered, 152. 
 misjoinder of, 354. 
 
 objection for, not a ground of demurrer, 420. 
 how raised, 35.'), 3J)1, 420. 
 
 mortgage actions, in. See MouTo.\(tK Ai'Tn>NS. 
 
 next friend, not to be added, or substituted, without consent, 355. 
 
 next of kin, representation of, wlien authorized, 341, 342. 
 
 when he represents other next of kin, 345. 
 non-appearance by, effect of, 'MS. 
 at trial, 594. 
 non-joinder of, not a ground of demuri'er, 420. 
 
 objection, how raised, 354, 355, 3(il, 420. 
 taken at hearing, effect of, 354. 
 numerous, in same interest, 340. 
 
 when some may be authorized to sue, or 
 be ^ued, 340, 341. 
 
 officers of corporation, not to be joined as, for discovery only, 324. 
 
 partition, in summary proceedings for, 777-780. 
 
 partners, how they may sue, or be sued, 342, 343. 
 
 "party" meaning of in Act and Jtiih'.i. 2. 
 
 pendi'ntc lite assignees, when necessary, 152. 
 
 personal representative, as. See Pkusonal Rkpresentative. 
 
 plaintiff, adding as, 35(i, 357, 358, 4*11. 
 
 consent in writing required, 355, 357, 3(10. 
 
 substitution of, when ,'vuthorized, 4')1. 
 
 who may be joined as, 31G-31H. 
 protection of property, in actions for, 345. 
 
1274 
 
 INDEX. 
 
 V\B,TlES~CuntiiiHed. 
 
 real ropreaentatives, when necessary to be added, 347. 
 representation of c. q. t. by trustee, effect of, 328. 
 representative of deceased party's estate, appointment of, .S2R, '.'>•>'.). 
 
 may be dispensed with, H'lS, ii2[). 
 realty, cannot be appointed. 829. 
 represented by some of same class, effect of judgment, 341, 342. 
 
 to be served with o. c. of judgment, 
 
 351. 
 residuary lej^atee, when he represents co-legatees, 345, 34G. 
 service on, out of jurisdiction, 'M\(\, 
 
 appearance after, 300. 
 of judgment. See Juijomknt — Master. 
 See Skuvick. 
 severing in defence, uuneoessarily, 314, ',)14. 
 stateuK^nt of claim, wliou to bo served on, 365. 
 
 See Stai.-.iIKNt OF CJi.Aisi. 
 striking out, power of (^onrt as to, ;t54-3"(ii, 3(11. 
 
 application for, imw to i)e made, 301. 
 at trial, when nut sfrved with jjrocess. 344. 
 when not to he done by amendment, 451. 
 substitution of plaintitt, not to be orilered without consent, 3")5. 
 sureties, .nay be joined ii'^ defendants witii mortgagor, 321. 
 third, how brought in, M2, :U,n, 300, 307. ., 
 
 Court may order notice to, 30(), 3(i7. 
 in replevin, 3()5. 
 notice to be served on, 305. 
 effect of, 303. 
 setting aside, 307. 30H. 
 notified, may apply to discharge order, 307, 308. 
 tranbmisaiou of interest of, effect of, 500, 501. 
 
 See OllDKR TO Co.N'TINUH PhOi KEDINOS. 
 
 trustees, when they represent estate, 325. 
 trusts, in actions foi- execution of, 344. 
 
 I'.VRTITION. 
 
 SU5I.M.UIY Al'lT.IC.VriONS Fon. 
 
 accounting partieF, to be made parties originally. 778. 
 accounts, in action for, 7K0. 
 adverse claimant, not granted against, 778. 
 application for judgment for, on notice, 777, 778. 
 
 wlio may make, 777. 778. 
 to be notified, 778. 
 when iitftvuts interested, 778. 
 consolidation of applications for. 780. 
 
INDEX. 
 
 1275 
 
 PARTITION— Continued. 
 
 costs in action for, 907, tlOS, 
 
 commission in lieu of, 007, 5t08. 
 dowress, when entitled to, 77!). 
 
 improvements, how to be allotted in action fen-, 7.S0. 
 incumbrances, inquiry as to, how made, 7H0. 
 
 paid off, when allowed, 780. 
 infant seekinji, must proceed by action, 77H. 
 •fudf^e in Chambers may ^rant judj^ment for, 777, 7H0. 
 judf^ment for,form of, 77i>. 780. 
 
 may be obtained in Chambers, 777-780. 
 
 service of, 780. 
 
 when several, may be consolidated, 778. 
 jurisdiction of H. C. J. in. -22, :10. 
 land in more counties than one, application for, to l)e made to a. 
 
 .Judfie, 778. 
 Local Master, jurisdiction on application for, 778. 
 Master in Chambers, jurisdiction as to, excluded, 143, 144. 
 moneys in action for. how to be paid out of Court, 778. ' 
 mortf^'aj^ee, wiien entitled to, 77'.t. 
 motion for, judf^ment for, 777, 778. 
 
 evidence required on, 770. 
 order for, to be entered , ()') 1 . 
 parties, to application for, 77H. 
 
 paymentoutot Court, Master inChanil)ers cannot oi'iler, I Ut. 
 rents and profits, account of, in action for, 7H0. 
 sale, when ordered in actiori for, 770. 
 tenant for life, when entitled to, 770. 
 
 not ordered a,i,'ainst, 770. 
 in common, when entitled to, 770. 
 trustees with power of sale, when not ordered af^ainst, 770. 
 unpatented land, of, not decreed. 770. 
 
 r.VRTNERS. See M.vsxkh 
 
 FAULT. 
 
 -F.\uiNKiiHiiii's — Wu.iri. Ni;(iiyK( r ksi> Dk- 
 
 advances by, when interest allowed on, lfi'2. 
 chant,'e of, effect of, on ri^lit to sue, or be sued in, firm name, 84:5. 
 dissolution of firm, service of writ, how to be made, :i43. 
 execution at»ainst, 842,348. 
 firm name, may sue, or be sH'd by, 842, 848. 
 chant^e in members, effect of, 848. 
 
 person carrying; on business as, may be sued in name of, ^ U. 
 
 sued in name of, appearance how to be entered, 811, 812. 
 
 writ of summons, how served on,20ti, 207. 
 interest, when allowed in account between, 1()2 
 
1270 
 
 INDEX. 
 
 PARTNERS— CoHf/«u«i. 
 
 judgment against firm, effect of, 34*2, 843. 
 
 in default of appearance, 311, 312. 
 names of, statement of, how obtained, 342. 
 
 order for delivery of, not enforceable by 
 attaciiment, 343. 
 non-appearance of, effect of, 311, 312. 
 plaintiffs, names of, to be discloHed on demand, 287. 
 receiver, when appointed as between, 217. 
 service of writ of summons on, how to be made, 296, 297, 342. 
 aeverint; in defence, effect of, 343. 
 wilful neglect and default, not liable for, 167. 
 
 PARTNERSHIPS. See Master— Pautnkhs— Wilful Neglect a.m. Dk- 
 
 F\ULT. 
 
 assets, application of, how made, (17. 
 jurisdiction of H. C. J. as to, 11, 13. 
 
 PAUT PERFORMANCE. 
 
 of contract, accepted in full, effect of, 51. 
 
 PARTY. 
 
 meaning of, in Act and Rules, 2. 
 
 PATENT. 
 
 actioi.s to repeal, writ of summons, how issued in, 39S, 399. 
 
 cancellation of, jurisdiction of Court as to, 11, 18. 
 
 issue of, jurisdiction of Court as to, 11, 18. 
 
 parties to actions to set aside, 18. See Attornby-Geneual. 
 
 PAYMENT OF MONEY. See Master -Payment into Court— Pay- 
 ment OUT OF Court — Payments. 
 
 into bank, how to be directed, 190. 
 
 out of bank, how obtained, 190, 191. 
 
 PAYMENT INTO COURT. 
 
 bank, duty of, on receipt of money, 248. 
 bank.s entitled to receive money, 247. 
 County Court actions, in, 951, 952. 
 date at whicli money to be credited, 248. 
 defence, with, 5()8, 569. 
 
 at L'Original, Cayuga, and Sault Kt. Marie, 'Jt.S. 
 defendant, by satisfaction, 568. 
 direction for, 241, 242, 247. 
 
 mode of obtaining, 247, 248. 
 
 otiftcers who may issue, 247. 
 
 pnecipc for, form of, 247, 248. 
 
 transmission of, to Accountant, 248. 
 
INDEX. 
 
 1277 
 
 enforceable by 
 
 2!)7, 342. 
 
 'Jeolkct and Dk- 
 
 39M, H'Jll. 
 
 PAYMENT INTO COVRT -Contiuueil. 
 
 diapensin;; with, Official Guardian, wlien to be notified of motion for, 
 
 r>n. 
 orders for, to be left with Aceonntant, 24!t. 
 infants, execution in favour of, how to bo satiHtied by, 712, 713. 
 judgment for, offect of, 741. 
 
 how enforced, 705, 70(i. 
 made of, 24(5, 247, 248. 
 order for, effect of, 741. 
 
 how enforced. 705, 70(). 
 to bo entered, 52(1, (552. 
 
 produced to Accountant, or officer issuing direction, 
 
 247-8. 
 dispensing with, to be left with Accountant, 249. 
 plaintiff, by, in satisfaction of counter-claim, 570, 571. 
 satisfaction, as, how made, 5(58. 
 
 in consolidated actions, 570. 
 to bo sif^nified in dcfonco, 5(1!). 
 notice of, when p"i'd before defence, 5(59. 
 plaintiff, when entitled to money, 5(19. 
 election by, to take, 5(59, 570. 
 solicitor, payment to, instead of, effect of, 247. 
 tender, with defence of, 571. 
 when imposed as a condition of leave to defend, (531, ()33, (534. 
 
 Genehai-. 
 
 INTO CouuT — Pay- 
 
 ;t. .Miu-ii'. uiH. 
 
 PAYMENT OUT '^F COURT. 
 
 adn-iinistration action, in, how ordered, 770-772. 
 
 letters of, when not to be acted on, by 
 
 '.rcountant, 
 251-2. 
 
 affidavit, of married woman entitled to, 250. 
 
 when dispensed with, 250. 
 application for, evidence required on, 249. 
 caveat against, 255. 
 
 cheque for, how to be si^^iied. 248. and initialed, 249. 
 not to issue after 20th .June, 249. 
 j)rtccipc for, to bo tiled, 249. 
 defence, money paid in with, at L"(Jrignal, Cayuga, or Sault Ste. 
 
 Marie, 249. 
 interest, from what date payable, 248. 
 
 when not to be paid to personal representatives, 251-2. 
 investment in Dominion Stock, for, 252, 
 married woman, entitled to, affidavit necessary, 250. 
 
 order when necessary, 250. 
 money paid in, in satisfaction, 5(19. 
 order for, to be entered, 526, C52. 
 
1278 
 
 INDEX. 
 
 PAYMENT OUT OF COVHT~Coiitinin;l. 
 
 invitners, to, how made, 252. 
 
 Ijcrsonul ropresentfttiveB, of deceiised party, when entitled to, 2")l-2 
 
 Burvivor of, when entitled to, 2/5 1. 
 principal money, wlien not to be paid to representatives of dt'L-eascd 
 
 person without order, 2,'jl. 
 probate, when not to be acted on, by Accountant, 251-2. 
 purcliaso money, consent of purchaser to, 2t!). 
 representatives of deceased person, whon entitled to, 251. 
 solicitor, liability of, for procuring wron}^fully,24!). 
 stocks, wlicn not to be transferred to personal representatives without 
 
 order, 251. 
 stop order aijainst, when granted, 251-(j, 
 
 Bee Sroi' Ohdkii. 
 survivor of personal representatives, when entitled to, 251. 
 vacation, lonjj, in, 24'.). 
 wrongful, liability of party obtaining, 24!), 
 
 TAYMKNTS. 
 
 appropriation of, 230,2;{1. 
 
 fiuarantor, by, lien for, 2B1. 
 
 mortgage debt, on, when they stop Statute cf Limitations, 'JliO. 
 
 surety by, lien for, 2H1. 
 
 I'KNAI. ACTION. 
 
 compoundiufj, 574. 
 
 order for, form of, 575. 
 costs, of, when penalty remitted, 575. 
 informer, when he may briuf^, 574. 
 
 required to give security for costs, 041. 
 penalty, Queen's proportion of, how to be paid, 575. 
 
 remission of, 575. 
 security for costs, may be ordered in, 941. 
 
 PENALTY. 
 
 relief aj^ainst, jurisdiction to tyrant, 21,38. 575. 
 terms maybe imposed on relieving against, 38. 
 
 " PENDING MATTER." 
 what is, 45. 
 
 PENDENTE LITE. Bee Lis Pkndkns. 
 
 assignees, when necessary to be added, 1.52. 
 
 under tax sale, rights of, 152. 
 assignment, effect of, 5(12. 
 death of parties, ci.ectof, 5(50, 561. 
 
INDKX. 
 
 1279 
 
 tivtioiiH, -I'M. 
 
 I'ENDENTK LITE— Continued. 
 
 marriage of parties, effect of , TitiO, .')()l. 
 triviiMiiuHHion of intorcHt, el'fuct of, TM), 
 waBte, when rebtrainod, 1(5, 
 
 PERSONAL KKI'UEHIONTATIVK. See ALMiNiHTitATioN-PAnTiKH. 
 
 action by, oraf{aiiist, caiiHeH wliioli may be joined in, iWl. 
 
 may be cominenoed before probate, or letters of udminiH- 
 tratiou t^riuited.iioO. 
 administration, wlien lie nmy brin^ action for, Tt'i'.t. 
 
 ordered to ))ay costs of ai^tion for, 7(>0. 
 See ADMiMHiiiArioN. 
 
 administrator, may be appointed i)y Hi^'ii Conrt, il31. 
 
 appointment of, by \V\ii\\ Court, HUl. 
 
 compensation for servici's, allowance of, 171, 17"). 771, 772. 
 
 a|)portionnu'nt of, 175. 
 
 claim for, prior to claims of creditors, 772. 
 
 li'fjacy in lieu of, etTect of, 771. 
 
 Muster may allow, 174. 
 
 misconduct, bow it effects, 17"). 
 
 principal on wbicb allowed, 174, 175. 
 
 prior to claim of creditors, 175. 
 
 costs inoirred by beneficiary for protection of estate, 173. 
 
 liability for, on obtiiiniiif,' order to continue proceedinj^a, 504. 
 of administration action, 7(>!). 
 deceased defendant, of, in action o.i bill, etc., .5(17. 
 defective security, entitled to credit for vaiue of, 175. 
 devisee, wlien bound by judtjnient aj^ainst, 330, 331. 
 Devolution of KHtnteg Act, rijjhts of, under, 329, 331. 
 distribution of estate by, after advertisement, effect of, 348. 
 
 under mistaken construction of will, effect 
 of, 348, 
 executor, appointment of, by II. C. J., 348. 
 
 trustee, in place of, by H. C. J., 348. 
 receiver, in place of, 348. 
 beir, wlien bound by judj^ment against, 330, 331. 
 Higb Court may appoint, 331. 
 improvements made by, wlien allowed, 170. 
 interest, liability for, 15i)-l()2. 
 
 judgment against, for assets in futuro, leave to issue execution on, 
 
 wlien necessary, 720, 721. 
 how far binding on heir, or devisee, 330, 331. 
 next of kin, or legatee, 330. 
 just allowances. Master may make, 15!), 174. 
 legacy to, as compensation, effect of, 174, 175. 
 
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1280 
 
 INDEX. 
 
 PERSONAL REPRESENTATIVE— Co»i;/n«erf. 
 
 legacy to, as compensation, does not abate, 175, 
 
 interest allowed on, 175. 
 legatee bound by judgment against, 830. 
 misconduct of, effect of, on right to compensation, 175. 
 
 costs, 7()9. 
 money receiven by pendente lite, compensation for, 175. 
 monument to teslator. allovvimce for, 175. 
 neglect and default, when liable to account for, 165, 16(1. 
 next of kin bountlby judgment against, 'iiHO. 
 order to continue proceedings, wlien lie may obtain, 567. 
 
 obtaining, liability of, for costs, 504 
 paying creditor in full, wlien assets deficient, 67. 
 
 legacy in full, effect of, 348. 
 payment out of (Joini to, 'i.'il. 
 profit, made by, liability to account for, 159, 160. 
 realty, action by, to en force cliiini against, 350. 
 
 for administration of, bow obtained, 350. 
 representative of estate, in lieuof,maybe appointed, 32H, 32i). 
 consent, not a|)pointed without. 380. 
 Court mil y i)i'oceed without, 3'2H, 3'2',(. 
 discretion of Court in appointing, 3'2!(, 329. 
 rests, when liable to account with, 159-161. 
 sale by under Devolution of Kxtutcn Act, 787-788. 
 
 notice of, when to be given to 
 Official Guardian, 788. 
 Statute of Limitations. See Ap.ministhation. 
 under Devolution of F.ataleit Act, represents realty, 329. 
 wilful neglect and default, liability for, 165. 
 
 PETITION. See Petition of Rioht— Pkoceedinos — Quietino Titles. 
 address of petitioner, or h" solicitor, when to be indorsed on, 279. 
 costs, tender of #5, may be made to formal respondent, 910. 
 dismissal of, for want of prosecution, 478. 
 filing, 478. 
 
 time for, 478. 
 formal parties, costs of, 479. 
 indorsement required on, 279, 759. 
 notice of hearing, 477, 478. 
 paragraphs, division into, 462. 
 petition of right. See Petition of Right. 
 petitioner, meaning of, in Act and Rules, 2. 
 printing, regulations for, 462. 
 
 residence and occupation of petitioner, when to be set out in, 478. 
 respondents, formal, costs of, 910. 
 
INDEX. 
 
 1281 
 
 en to be set out in, 478. 
 
 PETITION— Co»tn»««rf. 
 
 review, of, 057. 
 service of. In',). 
 
 leave for, when necessary, 759. 
 style of cause in, 463. 
 time for hearing, 759. 
 to carry judgment into operation, (iofi, (557. 
 
 notice of hearing to be indorsed, 057. 
 service of, 657. 
 verification of, 657. 
 impeach judgment for fraud, 056, 057. 
 
 notice of hearing to be indorsed, 057. 
 service of, (')57. 
 verification of, 657. 
 quiet title. See Quieting Titles. 
 suspend operation of judgment, 050, 657. 
 
 notice of hearing to be indorsed, ,657- 
 service of, 657. 
 verification of, 057. 
 
 PETITIONER. See Petition. 
 
 meaning of, in Act, and Eulen, 2. 
 
 PETITION OF RIGHT. 
 
 amendment of, rules as to, 757. 
 
 appeal, 757. 
 
 appearance to, 756. 
 
 arbitration, reference of, to, 757. 
 
 Attorney-General, service of, on, 756. 
 
 costs on, 758. 
 
 default of defence, proceedings on, 757. 
 
 demurrer to, time for, 756. 
 
 evidence on, rules as to, 757. 
 
 Jiat, for filing, 75(). 
 
 form of, 755. • 
 
 judgment on, 757, 758. 
 
 certificate of, to Provincial Treasurer, 758. 
 effect of, 758. 
 Lieutenant-Governor, to be submitted to, 755, 750. 
 
 fiat of, necessary, 750. 
 pleading to, rules of, 757. 
 time for, 756. 
 procedure, on, 757, 758. 
 pro coii/ensn, application to take, 757. 
 service of, how to be effected, 756. 
 
 on persons in possession of property claimed, 756. 
 J.A. 81 
 
 ■i ♦• 
 
//^x.M_^ ^^^ 
 
 1282 
 
 INDEX. 
 
 PETITION OF niGUT—Contimied. 
 
 set off, 7')7. 
 special casi:, 757. 
 Btatement of defence, to, 756, 757. 
 trial of, rules as to, 757. 
 by jury, 757. 
 
 PLACE OF TRIAL. 
 
 change of, in C. C. actions, 951. 
 
 not to be made by amendment, 451. 
 
 PLAINTIFF. See Discovery— Master— Pahtikh- Statkmknt of Claim. 
 acting in person, service of, when address omitted, 460, 407. 
 addition of, authorized, 401. 
 address of, solicitor to disclose, 286. 
 
 when to be endorsed on writ, 278, 279. 
 confessinj,' defence, arising after action, 456, 457. 
 
 entitled to costs, 456, 457. 
 estopped from bringing another action, 457. 
 defence of, to counter-claim, time for, 417. 
 documents, prc-cipe order to produce, when obtainable by, 496. 
 
 against, 496. 
 equitable rights of, to be given effect to, 37, 39, 40. 
 joint, and several claims, joinder of, by, 385. 
 meaning of, in Act and Eiilcn, 2. 
 
 not to be delayed by questions between defendants, 373. 
 satisfaction, election to accept money paid in us, 569, 570. 
 substitution of, authorized, 461. 
 third party, substitution as, 371. 
 unauthorized proceedings, how far bound by, '287 
 writ of summons, may issue in any county, 272. 
 
 indorsement of address on, when necessary, 278-9. 
 wrong person, substitution of another plaintiff in place of, 461. 
 
 I 
 
 PLEADINGS. See Counter-claim — Dkmuruku -Documknts— Joindkk 
 OK IsstiK — Petition — Petition of Hioiit— PiiooEEDiNos — Reply— 
 Service — Statement of Claim — Statement of Defence. 
 
 abatement, in, not admissible, 440, 441. 
 admissions in, 429. 
 
 how to be made in, 433. 
 
 neglect to make, costs, 436. 
 
 to be made in, 433. 
 agreements, allegation of, in, 438, 439. 
 amended, date of amendment, etc., to be marked on, 454, 
 delivery of, time for, 454. 
 
 .^.«. 
 
INDEX. 
 
 1283 
 
 PLEADINGS- C'o?j^mi<ed. • 
 
 amendment in, by consent, at any time, 453. 
 how to be made, 454. 
 leave to make, application for, 453, 45t). 
 may be ordered at any time, 445-448, 459, 4()0. 
 
 made without leave, 44(i, 450-452. 
 not allowed in long vacation, 470-480. 
 time for making without leave, 450-452. ' ' 
 imder order, 453. 
 • when allowed, 44f)-448, 45C-452. 
 refused, 447. 
 
 certified copies, admissible as evidence, 540. 
 close of, 425, 420. 
 
 note of, may be entered on default. 420. 
 effect of, 420. 
 confessiL'i of defence arising after action, 450, 457. 
 contract, b/re denial of, effect of, in, 439. 
 copies of, 427. 
 
 See CoriKs. 
 
 counsel, signature of, unnecessary, 428, 433. 
 
 counter-claim. See Counter-claim. 
 
 date of filing, to be marked with, 427. 
 
 dates, to be in figures, 428. 
 
 default of, judgment, how obtained on, 012, 015-020. 
 
 as between plaintiff and third party, 020, . '• ' 
 
 defendant and third party, 020. , ., 
 
 defence of plaintiff to counterclaim, time for, 417. 
 delivery of, includes filing, 428. 
 
 when not to be in long vacation, 479, 480. 
 
 demurrer. See DEMnitnER. 
 discontinuance, 571. 
 
 Division, in which action pending, to be stated on, 427. 
 documents, effect to be stated in, 437. 
 not to be set out in, 437. 
 ejectment, in, 441, 442. 
 
 embarrassing, striking out, 445, 448, 449, 450. -^-' 
 facts presumed, not to be stated in, 439. 
 
 inconsistent, not to be set up in, 444. 
 
 to be stated in, 428, 429. 
 
 which do not appear in previous pleading, 4.S4. 
 filing. 428. 
 
 form of, 428, 429, 430. 
 
 form of action, need not be specified in, 429. 
 fraud, must be pleaded, 434. 
 
 alleuations of, in, 437, 43M. 
 

 1284 
 
 INDEX. 
 
 \ 
 
 9. 
 
 I 
 
 i 
 
 PLEADINGS— Con^uHer/. 
 
 implied contract, how to be stated in, 438. ■ , i 
 
 inconsistent facts, not to be set up in, 444. 
 incorporation, to be taken to be admitted, unless denied, 439, 
 issues, Judge may direct, when pleadings do not suificiently define 
 
 them, 444. 
 malice, allegations of, in, 437, 438. 
 " material facts," what are, 429. 
 meaning of, in Act, and Rulen. 2. 
 name and address of solicitor filing to be stated on, 427. 
 
 suitor filing to be stated on, 427. 
 negligence, allegations of, in, 438. 
 new assignment, inadmissible, 441. 
 "not guilty by statute," how pleaded, ' -2, 443. 
 notice, allegation of, in, 438. 
 numbers, to be in figures, in, 428. 
 old rules as to, abolished, 427. 
 paragraphs, division of, into, 462. 
 particulars of, may be ordered, 430-433. 
 partnership, denial of, in, 439. 
 printed, maybe, 427, 462. * 
 
 prolixity, in, 429, 449. 
 release, must be pleaded, 434. 
 relief claimed, to be specified in, 436. 
 representative character, denial of, in, 439. 
 reply. See Reply. 
 ■candalouB, may be struck out, 444. 445, 446. 
 
 ordered to be amended, 445, 446. 
 
 service of, may be made in any County, 465. 
 hours for, 479. 
 on solicitor, 465. 
 
 or his agent, 465, 466. 
 silence of , no admission, 435. 
 
 exceptions to rule, 439. 
 
 solicitor, name and address of, to be marked on, 427. 
 statement of claim. See Statement ok Claim. 
 statement of defence. See Statement of Defence. 
 statutes, generally, how set up, in, 434. 
 Statute of Frauds, defence of, must be pleaded, 435, 439, 440. 
 Limitations, when it must be pleaded, 434, 435. 
 
 striking out, 445, 448-550. 
 
 appeal from order, when entertained, 450. 
 
 statements in, 429. 
 sums, to be in figures, in, 428. 
 tender, should be set up by, 229. 
 
 .!_ 3 
 
INDEX. 
 
 1285 
 
 PLEADINGS— (7oH(m«erf. 
 
 title, in ejectment, how set up, in, 441, 442. 
 
 of action, to contain, 427. 
 transmission of, by one otticer to another, 475. 
 vacation, not to be amended, or delivered in, 47!>, 480. 
 written, may be, 427. 
 
 PORT ARTHUR. 
 
 assizes, when to be hold at, 91. 
 
 POSSESSION. See Ejectmknt — MoicroAdK Actions — QtnuTiNo Titlks— 
 Salkb hy the Couut. 
 
 action to recover, other causes of action that may bo joined with, H81-3. 
 
 See Ejectment. 
 mortf{a»ee taking, liability of, 232, 233. 
 occnpation rent for, mortgagee's liability for, 232, 233. 
 order f'^r delivery of, how enforced, 384. 
 8umn'»iry application for delivery of, 383, 384, 
 writ of. See Foums. 
 
 POUND, \(iE. See Sheriff. 
 
 POWER. 
 
 defective execution of, when relieved against, 12. 
 
 PRACTICE. See Puocedube. 
 
 criminal cases, in, not affected by Jud. Act, 130. 
 
 *ormer, superseded by Jiuh'n, 132. 
 
 revenue cases, in, not affected by ii«/f.<, 13). ' 
 
 PRJECIPK. 
 
 cheques to be issued on, 249. 
 execution, to be filed on issuing, 722. 
 judgment, in mortgage actions, (ilS. 
 order, to amend when granted, 424, 42'). 
 change solicitor, 4()7. 
 return execution, 730, 731. 
 produce, when granted, 490, 498. 
 costs taxable for, 1078. 
 for replevin, 854, 855. 
 
 sale. See Moktgaoe Actions. 
 security for costs, 939, 940. 
 replevin order, when obtainable on, 854, 855. 
 records to be transmitted on, 474, 475. 
 
 PRECEDENCE. 
 
 of Judges, fi. 
 
128H 
 
 INDEX. 
 
 PRKSIDENTK OF DIVISIONS, 
 who to be, 5. 
 
 PUESIDF]NT OF 11. C.l. 
 who to be, 5. 
 writs of summons, to be tested in name of, 274. 
 
 PUIVY COUNCIL. 
 
 appeals to, fi(»8-70:{. 
 
 delay in settint^ down appeal to, 703. 
 
 printin}{ case, 708. 
 dismissal of appeals to, for want of prosecution, 701, 70U. 
 Rules of, ()'»'.)-70;{. 
 
 solicitors, how admitted to practice before, 702. 
 declaration to bo made by, 702. 
 practisint^ before, violatin{( Rules, 702, 703. 
 
 PROCEEDINGS. See Amiinumknt— Pktition— Pr,K.u)iN(is. 
 
 amendment of, may be authorized at any time, 45i), 4(J0. 
 
 certified copies, admissible as evidence, 54(1. 
 
 copies, official, when dispensed with, 403. 
 
 demand of, to be in writinfj, 404. 
 
 time for deliverinf^ after, 4()4. 
 See CopiKs. 
 
 folio, length of, 403. 
 
 formal defects in, not to invalidate, 4.58. 
 
 forms, prescribed by liiilen to be used, 405. 
 
 hours for service of, 471). 
 
 irregularity in, 459. 
 
 not to affect purchaser, 02. 
 
 waiver of, 4.59. 
 non-compliance with litileii, effect of, on, 458,459. 
 paragraphs, division of, into, 402. , 
 
 printed, or written, to be, 402. 
 printing, regulations as to, 402. 
 service of, may be made in any County, 405. 
 
 See Skuvice. 
 short style of cause in, when authorized, 403. 
 style of cause, in, 403. 
 width and length of paper, regulation as to, 402, 403. 
 
 PROCEDURE. See Piuctice. 
 
 former, ho tv far continued, 10('», 107. 
 
 Judges of Supreme Court annually to consider, 105. 
 
 PRO CONFKSS;(). , 
 
 former practice abolished, 224. 
 petition of right, application to take, 757. ' 
 
INDEX. 
 
 1287 
 
 7(«. 
 
 (IS. 
 
 ;o. 
 
 PRODTTOTION OF DOCUMENTS. See Dihcoveky -Mastkb. 
 
 costH of, when diBallowed, i)l'2. 
 
 order for, onextiiniiuition of witnesneH, 545. 
 
 Referee, power of, to order, 520. 
 
 PROHIBITION. 
 
 application for, niiiy be made on affidavit, 874, 875. 
 Master in Chambers cannot {,'rant, 14;}. 
 motion for, 874, 875. 
 order for, effect of, 875. 
 
 appeal from, to Divisional Court, 87'>. 
 writ of, abolished, 875. 
 
 " PROPKR OFFICER." 
 
 meanint; of, in Act and Rules, 8. 
 
 PROPERTY. 
 
 detention of, pemlentd lite, order for, may bo t.'ranted, 872, 87:!. 
 inspection of, pendente lite, order for, may bo granted, H7'2, S7;). 
 lien on, amount of, may be ordei-ed to be paid into Court, 674. 
 perishable, sale of pendente lite may be ordered, 871. 
 preservation of, pendente lite, order for, 870-872. 
 samples of, may be ordered to be taken pendente lite, 872, 878. 
 sale of pendente lite, when ordered, 871. 
 
 PROTEST. 
 
 costs of, recoverable, 597. • 
 
 PUFFER. See S.u.es by the Court. 
 
 "PURCHASER FOR VALUE WITHOUT NOTICE." 
 equitable right, resulting from, when it may be set up, 07. 
 
 PURCHASE MONEY. 
 BY THE Court. 
 
 See Payment out of Court — PuucnAsi:it— Sai-ks 
 
 PURCHASER. See Sales by the Court. 
 
 compensation to, 204-206. 
 concurrence, want of, not to affect, 62. 
 consent, want of, not to affect, C2. 
 conveyance, entitled to, 25. 
 
 execution of, 25. 
 
 refusal to execute, 25. 
 
 tender of, by, 213. 
 improvements by, right to allowance for, 170. 
 irregularities in proceedings, not to affect, 62. 
 jurisdiction, want of, not to affect, 62. 
 notice, want of, not to affect, 62. 
 
I- 
 
 % 
 
 ^ 
 
 
 % 
 
 t 
 
 \ 
 
 1288 
 
 PURCHASER— CoiK/nwerf. 
 
 INDEX. 
 
 occupation rent, liability for, 168. 
 Sheriff's sale, at, priority of, 234. 
 vesting order, effect of taking, 2!i. 
 
 not bound to accept, 25. 
 wilful neglect and default, when not liable for, lliB. 
 
 Q 
 
 QUEEN'S BENCH, COURT OF. 
 
 amalgamation of, with other Courts, 4. 
 
 QUEEN'S BENCH DIVISION. See High Cocht of Justick. 
 name of , 4. 
 
 QUEEN'S COUNSEL. 
 
 assizes, may hold, 92. 
 
 powers of, when presiding at sittings, 92. 
 
 sittings of H. C. J., may hold, 92. 
 
 QUIETING TITLES. 
 
 adverse claimants, to be notified, 802, 803. 
 
 notice to, form of, 803, 804. 
 
 service of, 802, 803. 
 
 advertisement of application, 801, 802. 
 
 form of, 801. 
 
 how to be published, 801, 802. 
 
 publication of, how proved, 797. 
 affidavit of petitioner, 795. 
 
 when to be sworn, 795. 
 proving publication of notices, 797. 
 
 facts, as to title, to be made by disinterested persons, 
 
 797. 
 possession, 799. 
 
 appeals from Referees, 805, 807. 
 
 attendance of petitioner,or his solicitor, in uncontested case, dispensed 
 
 with, 800. 
 certificate as to claims of contestant, to be confirmed as Master'^ 
 report, 797. 
 of counsel, 795. 
 
 filing petition, to be issued by Clerk of Records and 
 
 Writs, 799. 
 registration of, 795. 
 Registrar, 795. 
 Sheriff, 796. ' 
 
INDRX. 
 
 1281) 
 
 QUIETING TITLEH -Continiu'il. 
 
 certiticatu of title, liow prepared, 80'), HOCi. 
 to be sif^ned. 805. 
 
 entered, 80'). 
 Treasurer, 7'.)(i. 
 certified copies of memorials, when necessary, 70"). 
 Clerk of Ilecords and Writs, duties of, under, 188. 
 
 when to attend .ludf^e, before filing; 
 
 petition, Tit?, 
 contestant, claim of, adjudication on, 804. 
 
 report on, form of, 804. 
 
 confirmation of, 707. 
 
 successful, certilicate of title how obtained by, 805. 
 
 costs of proceedings in, 807. 
 
 Heferee may award, 804. 
 
 Court house, notice to be posted at, 801, 802. 
 
 irref,'ularly posted at, 802. 
 
 counsel, certificate of, 70"). 
 
 Crown bonds, when bindinj^, 707. 
 
 deeds, to be produced, 70"). 
 
 return of, to petitioner, 80)1. 
 
 dower, bar of, proof required, 70(). 
 
 evidence, required on, 70"), 70(1, 80H. 
 
 explaininji suspicious circumstances, may be required, 803. 
 
 negative, petitioner may be required to give, 803. 
 
 execution, certificate required as to, 70(1. 
 
 exhibitsto affidavits, to be marked by commissioner, 707. 
 
 fees of. Inspector of Titles, 807. 
 
 counsel, 807. 
 
 solicitors, 807. 
 
 Inspector of Titles, who to be, 708. 
 
 appeal from, 803, 807. 
 
 duty of, 804, 805. 
 
 feesof, 708, 807. 
 
 Local Masters may confer with, 700. 
 
 to confer with Judges, 804. 
 
 keep letter book, 80(5. 
 
 legitimacy, proceedings for declaration of, 80(1, 807. 
 
 Local Masters, to whom petition may be referred, 707. 
 
 appeal from, 807. 
 
 are not (.'.r ()//jf/o referees, 707. 
 
 finding of, not conclusive, 805. 
 
 how to certify title, 804. 
 
 may confer with Inspector, 700. 
 
 Local Referee. See Kupra — Local Masters. 
 
 Masters, to whom petitions may be referred, 707. 
 
1290 
 
 INDEX. 
 
 \ 
 
 QUIETING TJTLllH—Cotitiniiiul. 
 
 inoniorialH, copieH of, when to bo produced, 795. 
 notice of application, HOI, H02. 
 
 form of, HOI. 
 
 poHtinf,'uj), at '.'onrt HouHe, and P. ()., 7!I7. 
 
 publication of, HOI, HO'2. 
 
 proof of, 7!»7. 
 Hervicoof, wJiL'u iifccHsary, HOO-HOH. 
 to adverse clainuint, HOC), HO'2. 
 
 form of, H0;{. 
 objections to title, Heferee to deliver, HOO. 
 petition for, how framed, 7'.(H. 
 
 consent of other perHons to tiling, when necessary, 79Ii-4. 
 
 description of land in, 794. 
 
 effect of fllintJ, TM. 
 
 entry witii Inspector before tilinf^, when necessary, 7'JH. 
 
 estate or interest claimed, to be specified in, 704. 
 
 filing, 7».'5. 
 
 sanction of Jud>^e to, when necessary, 703, 797. 
 form of, 794, 79.'). 
 
 how referred for investigation, 79H. 
 indorsement of, 79H. 
 
 referred to Local Referee, to be entered with Inspector, 
 
 798. 
 registering, 79.'). 
 
 certificate for, how issued, 799. 
 to whom referred, 797. 
 who may file, 793, 794. 
 petitioner, who may be, 793, 794. 
 possession "f part, effect of, 800. 
 
 not necessary that petitioner should be in, 794. 
 order for delivery of, may be obtained, 794. 
 proof of, required, 79(5, 799, 800. 
 title by, how proved, 800. 
 
 notice to be served in case of, 800. 
 possessory title, notice to be served in case of, 800, 802. 
 postages, payment of, 806. 
 
 post office, notice when to be posted at, 801, 802. 
 proofs required, on application for, 795, 790. 
 
 to be delivered to Heferee, 799. 
 Referee of Titles, appeal from, 805, 807. 
 
 who are, 797, 798. 
 Registrar's certificate, 795. 
 report of Referee, 804, 805. 
 
 appeal from, 805, 807. 
 confirmation of, 797. 
 
 
INDEX. 
 
 1291 
 
 1.1 P.O., 7(17. 
 
 11 necessary, 7'J:i-4. 
 
 ceHsary, 793, 797. 
 
 QUIETING TlTLEH—CUmtiiiiiol. 
 
 re(iui8itiona on title, lloft^roo to deliver, H()(), 
 schedule of i)iirticularH, to be lilc 1, 797. 
 Hervioe of notice on claimants, 804. 
 
 proof of, HOI. 
 Sheriffs' certificates recjuired. 79tl, 
 solicitor, attendance of, when dispensed wilii, SOO. 
 
 certificate of, 79.'). 
 statement of facts, when reijuired, I'M' 
 taxes, payment of, how proved, 79f». 
 
 not evidoiifo oi poMscsxioi' «0t). 
 title deeds, may bo rctiirneil to i)etitioner, hoI' 
 
 to be produced, 79"). 
 Toronto Referee, to keep letter hook, 80(1. 
 transmission of papers, cost of, liow paid, yOli, 
 Treasurer's certificate required, 79(i. 
 
 QUO ]VAIUlANTO. See Contuovmhtko Mf.sn ii>ai, Hi.ixno.vs. 
 school trustees, election of, how contested, H09. 
 
 R 
 
 KECEIVER. 
 
 accounts of, passing, time for, how fixed, 220, 221. 
 actions aj^ainst, may be restrained, 220. 
 administration action, appointment in, (iO. 
 appeal from Master's appointment of, 219. 
 
 time for, 219. 
 application for, to be on notice, (11. 
 appointment of, application for, how made, 21H, 219. 
 defendant may apply for, 218. 
 effect of, 214. 
 Master's, form of, 219. 
 
 appeal from, 219. 
 to be filed, 219. 
 stay inti, pending appeal, (■)7ii. 
 
 confirmation of, 797. 
 when made, 52, 59-62. 
 when it takes effect, 220. 
 balances, paying into Court, Master to fix time for, 220, 221. 
 bond of, draft to be brought into M. ()., 218, 219. 
 allowance of, 218, 219. 
 Guarantee Company's may be accepted, 219. 
 
1292 
 
 "RECmVER— Continued. 
 
 INDEX. 
 
 bond of, to be made to the Accountant, 219. 
 
 dischar{»e of, 219. 
 claim for, to be indorsed on writ, 214. 
 committee of lunatic party, ineligible as, 218, 
 compensation, may be deprived of, for not passing accounts, 2'21. 
 or not paying balances into Court, 221. 
 
 co-tenants, as between, 60. 
 
 Court of Appeal will not interfere with discretion of Court in apimint- 
 
 ing, 61, 
 creditor, wlien appointed on application of, 216. 
 deceased person's estate, may be appointed of, when no peisonai 
 
 representative, 333. 
 defendant may apply for appointment of, 61, 218. 
 defending action, sanction of Court for, required, 220. 
 discharge of bond of, 219. 
 discretion of Court as to appointing, 61. 
 disinterested, should be, 218. 
 distress by, sanction of Court for, 220. 
 duty of, 214. 
 
 equitable execution, appointment by way of, 60, 61. 
 
 when refused, 01. 
 mortgagee, when appointed at instance of, 216. 
 executor, when appointed in place of, 21'). 
 fx }j(irte, when appointed, 61. 
 
 further directions, judgment on, when it need not continue, 21"). 
 guardian of party, ineligible as, 218. 
 improvements made by, without previous sanction, 170. 
 i nterference with, by third parties, 220. 
 
 when a contempt, 220. 
 interim, when granted, 60. 
 refused. 60. 
 superseded by judgment, 21;'>. 
 
 jurisdiction of Court to appoint, 52, 59-62. 
 
 legal mortgagee, may apply for appointment of, 59. 
 
 title, when appointed as against holder of, 217, 218. 
 litigant, if appointed, acts without salary, 218. 
 
 cannot propose himself as, without leave, 218. 
 lunatic, estate of, when appointed to, 215. 
 Master's appointment of, form of, 219. 
 
 filing of, 219. 
 may be appointed after judgment, 216. 
 mortgagee, when granted for, or against, 215, 21 G. 
 notice, of person proposed as, to be given, 219. 
 of debtor's estate, 216. 
 
INDEX. 
 
 1295 
 
 on of Court in iipimint- 
 
 of, when no personal 
 
 RECEIVER- C'on«mie«(Z. 
 
 of infant's estate, 215. 
 
 intestate's estate, 215, 833. 
 
 lunatic's estate, 215. 
 
 mortgat^etl estate, 215, 216. 
 
 partnership estate, 217. 
 
 railway company's estate, 216, 217. 
 
 testator's estate, 215. 
 officer of the Court, is an, 218. 
 parties, may be appointed, 218. 
 
 when ineligible, 218. 
 partnership, when appointed of, 217. 
 
 " going concern " pendente lite, 217. 
 person not a party, cannot apply for payment by, 62. 
 plaintiff, when appointed, 61. 
 
 prior mortgagees, rights of, not prejudiced by appointment of, 217. 
 proceedings against, restraining, 220. 
 purchaser, when appointed as against, 217. 
 railway company, of, when granted, 216. 
 report, as to appointment of, Master, not to make, 21!). 
 sale, may not bid at, 197. 
 security, to be given by, 61, 218, 219. 
 filing of, 219. 
 
 when it cannot be dispensed with, 218. 
 solicitor, of either party ineligible as, 218. 
 suit by, sanction of Court for, required, 220. 
 teTiaiits in common, when appointed as against, 217. 
 tii/le uncertain, appointment of, 59. 
 trust estate, >vhen appointed, of, 215. 
 trustee appointed as, on what terms, 872. 
 
 when inoligible as, 218. 
 vendor, when appointed as against, 217. 
 warrant for appointment of, 214. 
 
 return of, proceedings on, 218. 
 who may be appointed, 61, 218, 872. 
 
 RECOGNIZANCE OF BAIL. See Bailablk PROcEKiuNcis. 
 forfeiture of, in criminal cases, not relieved against, 21. 
 
 RECORD. 
 
 amendment of, how made, 654. 
 
 deliverj of , lOr use of Judge at trial, 590. 
 
 form of, 590. 
 
 High Court case tried in C. C, to be forwarded to Registrar, 002. 
 
 Local Officer failing to transmit, 474, 475. 
 
1294 
 
 B.ECOUD— Continued. 
 
 INDEX. 
 
 production of, required on motion ajjainst judgment, 474, 475. 
 transmission of, to Toronto on praecipe, 474, 475. 
 witlidrawal of, at trial, 593. 
 
 when allowed, 592. 
 
 REDEMPTION. See Mortgage Actions. 
 
 action for, accounts to be taken in, 238-9. 
 time allowed to redeem in, 239. 
 mortf^age of realty and personalty, ri^ht of personal representative to, 
 
 230. 
 REFEREE. See Masteu — Official Rkferkk — Quieting Titles. 
 
 appointment of, in place of one dyinj?, etc., 529. 
 
 authority of, 147. 
 
 committal to prison, cannot order, 147. 
 
 Court may refer questions tO; 147, 148. 
 
 death of, appointment of new, 529. 
 
 evidence of witnesses, how to be given before, 537. 
 
 inspection by, 146. 
 
 of titles. See Quietixg Titles. 
 
 powers of, on reference, 528, 529. 
 
 procedure before, 147. 
 
 Ilalca regulating practice before Masters, apply to, 160. 
 
 trial before, when to be held, 14(5. 
 
 proceedings on, 14C. 
 view by, 14(i. 
 witnesses may be examined bj, 528. 
 
 REFEREE OF TITLKS. See Qdieting Titles. 
 Local Masters, having jurisdiction as, 797. 
 Registrar of Chancery Division to be, at Toronto, 798. 
 
 REFP]RENCE. See Master— Official Referee— Quieting Titles- 
 Referee. 
 adjournment of, when admissible, 155. 
 arbitration, to, not ordered by Court, 527. 
 de die in diem, to be prosecuted, 155. 
 error, manifest in judgment or order of, 150. 
 ex parte proceedings on, when irregular, 15(5. 
 Master may close, for delay in prosecution, 151, 155. 
 may be ordered at any stage, 528, 
 
 Official Referee, to, proceedings on, 528. See Official Rf.fekek. 
 opening, 185. 
 
 order of, implied provisions of, 528, 529. 
 Special Referee, to, proceedings on, 528. See Referee. 
 
INDEX. 
 
 1295 
 
 INO TiTLKS. 
 
 REFERENCE— Con/fHiw^L . 
 
 title, as to. See Austuact of Title — Quiktinu Titlks. 
 warrant to consider, when to issue, 155, 15(5. 
 service of, 15(). 
 
 REGISTRARS. See Clerk of Assize— Officers ok Court. 
 
 appointment before, time for attendance on, 47!). 
 one suflicient, 47i). 
 of, how made, 107, 108. 
 assistant, appointment of, 108. 
 
 Clerk ot Assize, duties of, as. See Cleuk of Assize, 
 conference with each other, on sottliuj^ judgments, (548. 
 fees of, how payable, 123, 124. 
 oath, to bo taken by, 10!). 
 
 of Q. B. and C. P. 1). when to attend sittings for trials, 141. 
 security to be given by, 110. 
 C. P. D. duty of, as to Barrister's Roll, 257. 
 Solicitor's Roll, 257. 
 Chy. Div., to bo Referee, and Inspector of Titles, 7!)8. 
 offices of, to be kept at Osgoode Hall, 110. 
 rolls and records, size of paper to be prescribed by, 462, 463. 
 settlement of judgments by, 646-648. 
 sittings of Court, to attend, 135. 
 
 RELATOR. See Controverted Muxicipal Elections. 
 
 RELIGION. See Infant. 
 
 liKMANKT. 
 
 notice of trial of, necessary, 5!)2. • 
 
 re-entry for trial, unnecessary, 5!)2. .. , 
 
 RENEWAL. See Execution. , • 
 
 RENTS AND PROP'ITS. See MASTER-MnuTOAOK Actions - Sales ry 
 the Court. 
 
 REPLEVIN. 
 
 action of, when it lies, 852, 853. 
 
 affidavit for order of, 854, 855. 
 
 bond. Sheriff must take, before replevying, H56, 857. 
 
 action on, when it lies, 857. 
 
 assignment by Sheriff of, 857. 
 
 subject to 8 A !) W. 3, c. 11 : 857. 
 capiat in witlicniam, order in lieu of, 85!), 860. 
 damages recoverable by plaintiff, 8()0. 
 goods, concealment of. duty of sheriff in case of, 858, 850. 
 when repleviable, 853. 
 
 not repleviable, 853. 
 
1296 
 
 REPLEVIN— CoHtinwerf. 
 
 INDEX. 
 
 motion for order of, discretion of Court on, 861). 
 order of, how obtained, 854-850. 
 
 affidavit for, 854, 855. 
 
 defendant may move to discharge, 856. 
 
 form of, 856-858. 
 
 issued on pnncipe, duty of Sheriff under, 858. 
 
 return by sheriff to, how made, 850. 
 order in lieu of capias in withernam, 859, 860. 
 precipe, order of , when obtainable on, 854, 855. 
 schedule of goods replevied, to be made by Sheriff, 859. 
 sheriff, duty of, as to serving writ of summons, in action of, 858. 
 taking bond, 856, 857. 
 under pnecipe order, 858. 
 when goods concealed, 858, 859. 
 writ of, abolished, 854. 
 writ of summons, sheriff not to serve till goods replevied, H58. 
 
 REPLY. See Pleadings. 
 
 amendment of, without leave, when allowed, 452. 
 
 defence to counter-claim, arising after action, may be set up in, 455. 
 
 delivered, after time for, expired, effect of, 418. 
 
 irregularity in delivering, 418. 
 
 joinder of issue, may be delivered after, 418. 
 
 new claims, not to be set up by, 417. 
 
 subsequent pleading, when pleadable after, 418. 
 
 to be delivered, 418, 419. 
 time for delivering, 417, 418. 
 
 REPORT. Sea Mastkk— Official Rkfkbee. 
 
 RESERVED BID. See Sales by the Couut. 
 
 RE-SALE. See Sales by the Couut. 
 
 RESTS. 
 
 Master may take accounts with, 158-164. 
 when chargeable against, agents, 162. 
 
 mortgagee in possession, 163, 233. 
 
 partners, 162. 
 
 personal representatives, 159-162. 
 
 trustees, 159-162. 
 
 RETURNING OFFICER. See Controverted Municipal Elections. 
 
 REVENUE. 
 
 jurisdiction of High Court in cases of, 21. 
 
 REVIVOR. See Adatement— Order to Continue Phoceedikgs. 
 
INDEX. 
 
 1297 
 
 , 85H. 
 
 f, 859. 
 action of, 858. 
 
 replevied, 858. 
 
 >2. 
 
 lay be set up in, 455. 
 
 lUTLES OF COURT. 
 
 chapters, division into, not to affect consti'uction, 132 
 
 Court of Appeal, Judges of, may make for certain purpowos, 104-105. 
 
 distribution of business among officers, for, 109. 
 
 division of, into chapters, etc., not to affect construction, 132. 
 
 duties of officers, regulating, 109. 
 
 effect of, 104. 
 
 future, when to be published in Ontario Gazette, 132. 
 
 come into force, 132. 
 headings of, not to affect construction, 132. 
 High Court, Judges of, may make, 105. 
 include forms, 2. 
 
 interpi'etation of words in, 131, 132. 
 
 Lieutenant-Governor may authorize Judges to make, 105. 
 payment of money into, or out of Court, may be regulated by, 104. 
 promulgation of, 132. 
 
 statutes, former, regulating procedure may be varied by, 104. 
 Supreme Court may make, 102-104. 
 suspension of certain, 132. 
 titles of, not to affect construction. 132. 
 unrepealed, schedule of, 953. 
 
 lUTLESOFLAW. 
 
 enacted by Judicature Act, to prevail in all Courts, 07. 
 established by Judicature Act, 4C-G7. 
 
 419. 
 
 lion, 163, 233. 
 ives, 159-1G2. 
 
 UNICIPAIi ElKCTIONS. 
 i PHOCEEDIKGH. 
 
 •^\Ij1'2. See Absconding Dkhtok — Interpleadku— Mortoage Actions — 
 
 PuitCHASEU — S.M.ES BY THE CoCliT. 
 
 order for, to be entered, G52. 
 
 perishable property, of, may be ordered ;)<?«(?<;«/(? lite, 871. 
 
 SAIiES BY THE COURT. See AnsnucT or Title— Mortoage Actions. 
 
 abortive, sale may be had after, 193. 
 
 abstract of title, acceptance of, as sufficient, effect of, 209. 
 
 objections after, disallowed, 210. 
 confirmation, of, what is, 209. 
 
 objections after, disallowed, 210. 
 delivery of, 207, 208. 
 demand of, 208. 
 
 neglect to make, 208. 
 nature of, 208. 
 
 j.A 82 
 
121)8 
 
 indp:x. 
 
 SALES BY THE COimT—CoHthnied. 
 
 nbstraot of title, objections to, 207, 208. 
 
 liow disposed of, 208, 20!t. 
 
 waived, 208. 
 Master not to report on, 200. 
 
 to mark "allowed"' or "dis- 
 allowed," 20!». 
 See AnsTiucT of Title. 
 
 advertisement of, misdescription in, effect of, 194, 205, 20(1. 
 
 misstatements in, effect of, 194, 201, 20o, 206. 
 objections to, how taken, 193, 194. 
 publication of, 197. 
 re-settlement of, when order d, 195. 
 settlement of, 198-195. 
 what to contain, 193, 195, 197. 
 where sale subject to reserved bid, 195, 
 affidavit of auctioneer, of result, 199. 
 agent, when not entitled to bid at, 19fi, 197. 
 auction, may be by, 191, 195. 
 
 hif^hest bidder at, 195. 
 auctioneer, aflidavit of, as to result, 199. 
 license not required, 195, 198. 
 Master, or his clerk, may act as, 195, 198. 
 not to accept unauthorized bid from vendor, or puffer, 195. 
 bid, by person having no right to, effect of, 197. 
 highest, when sale without reserve, 198. 
 invalid, acceptance of, 197, 198, 200. 
 leave to. when granted, 197. 
 need not be in writing, 198. 
 persons not entitled to, 19(3, 197, 1*J8. 
 reserved. Master may fix, 195, 19(5. S"* < ; .served bid. 
 
 to be stated in advertisement,, ll.'/. 
 right of vendor to, 195. 
 
 parties to, 19(5, 197. 
 blots on title, removal of, when registered, 204. 
 clerk of Master, may conduct, 195, 198. 
 compensation, allowance of, to purchaser, 204-200. 
 for deficiency in lanu, 205. 
 delay in making title, 205. 
 dilapidations, 205. 
 loss by fire, 205. 
 
 misdescrijition in advertisement, 194. 
 misrepresentations in advertisement, 204-20(i. 
 suppression of material facts, 205. 
 when allowed after conveyance, 20*). 
 
 vesting order, 20(). 
 
INDEX. 
 
 129^ 
 
 HALES BY THE GOVRT— Continued. 
 
 .served bid. 
 
 conditiona of sale, when to be advertised, 193, 197. 
 
 bad, 194. 
 effect of, as to title, 194. 
 leave to bid, when to be stated in, 197. 
 special, 194. 
 
 to be set out in advertisement, 195, 197. 
 when void, 194. 
 standing, 190. 
 conduct of sale, who entitled to, 192, 
 
 party having, duty of, 197, 199. 
 
 agent of, not to bid, 19(5, 197. 
 liability of, for deposit, 198, 199. 
 not to bid, 193. 
 
 solicitor of, not to bid, 196, 197. 
 tnistee, when entitled to, 192. 
 See MoKTHAOE Actions. 
 
 contract of purchase at, how framed, 198. 
 rescission of, 203. 
 signature of, 198. 
 specific performance of, when refused, ^206^ 
 
 conveyance, acceptance of, 204. 
 covenaats in, 214. 
 
 equitable interests, parties having, need not join in, 213^ 
 execution of. Master may direct, 180. 
 Master may settle, 180, 181, 213. 
 "matters of," what are, 213. 
 purchaser's duty to prepare and tender, 213. 
 settlement of, 207. 
 
 by Master, when necessary, 213. 
 costs of, 213. 
 tender for execution, how made, 214. 
 
 costs, of payment of purchase money into Court, 199. 
 reference as to title, 213. 
 
 lien of purchaser for, 213. 
 re-sale, liability of defaulting purchaser for, 202. 
 
 covenants, right of purchaser to, 211, 214. 
 Crown bonds, vendor bound to discharge, 211. 
 when a charge, 211. 
 
 deeds, title, must be registered at vendor's expense. 210. 
 
 copies, when to be furnished, 210, 211. 
 
 recitals in, how far evidence, 210. 
 
 See su2"'«— conveyance, 
 default of purchaser at, re-sale after, 19(1. 
 
1300 
 
 INDEX. 
 
 SALEB BY THE COVB.T- Continued. 
 
 deposit at, forfeiture of, 199, 202. 
 how to be paid, 198. 
 liability for, 190, 19H, 199. 
 '.. payment into Court, of, 198. 
 
 costs of, 199. 
 .•! ■ ■ . . default in, 198. 
 
 purchaser, when entitled to lien for, 213. 
 security for, 199. 
 in mortgage action, to obtain. See MoirroAOK Actions. 
 destruction of property after, effect , f , 200. 
 dower, purchaser entitled to bar of, 20(1. 
 
 refusal to bar, effect of, 20fi. 
 executor, may not bid at, without leave, 197. 
 fire, after, risk of loss by, 200. 
 ground rent, accruing after, liability for, 204. 
 growing crops, who entitled to, 203. 
 immediate. See Moutoaok Actions. 
 incumbrances. Master may order payment of, 181. 
 payment of, 204. 
 removal, 204. 
 
 vendor not bound to negative existence of, 211. 
 interest, on purchase money, 202, 203. 
 irregularity in, effect of, (i2, 200. * 
 
 prior to, effect of, 201. 
 
 purchaser not affected by, 212. 
 judgment directing, copy of, need not be filed with Master, 192, 
 leave to bid, when necjssary, 1!)7. 
 Master, may conduct, 19.5, 198. 
 
 settle conveyances, 207. 
 Clerk of, may conduct, 195, 19H. 
 memorials, registered, how far evidence, 210. 
 misstatements in advertisement, effect of, 194, 201, 206. 
 • mode of, 191, 195. 
 
 mortgage actions, in. See Mohtoaok Actions. 
 mortgagor, duty of, in mortgage action, 195, 19(j. 
 objection to, how to be made, 200. ' 
 
 title, delivery of, 211, 212. 
 
 after time has expired, 211. 
 how disjiosed of, 212. 
 service of, time for, 211, 212. 
 vendor to give notice to deliver, 211. 
 opening biddings, when allowed, 200, 201. 
 
 application for, when to be made, 200. 
 order directing, copy of, need not be filed with Master, 192. 
 
INDKX. 
 
 1801 
 
 )liTOAOK ACTIONH. 
 
 xibtence of, 211. 
 
 HALES BY THE COVRT—Gontiimed. 
 
 outgoings, after, payment of, 204. 
 parties, duty of, to facilitate sale, I'.t'i. 
 
 purchaser to see that all necessary, are bound, 212. 
 when entitled to bid at, 19(5, l',»7. 
 possession, delivery of, to purchaser, 2t);{, '204. 
 
 not constructive notice of adverse title, 212. 
 purchaser should inquire as to, 212. 
 takinji, effect of, 203. 
 
 when an acceptance of title, 207-s. 
 postponement of, 107, 
 private contract, may be, by, 101, 105. 
 
 proceedinf»8, irref^ularity of, purchaser not affected by, 212. 
 puffer, bidding by, when not to be received, 105, 108. 
 
 reserved bid, does not authorize employment of, 108. 
 purchase money, deposit of, required, 108. 
 
 see miprtt — deposit, 
 default in payment of, 201, 202. 
 interest on, 202, 203. 
 payment into Court, 101. 
 
 costs of, 100. 
 how compelled, 201, 203. 
 to solicitor, effect of, 202. 
 
 purchaser, compensation to. See mqira — compensation, 
 contract, to be signed by, 108. 
 conveyance to. See .lupra — conveyance. 
 iufni vesting order, 
 having secret bargain to resell to vendor, 107. 
 irregularities in, do not affect, 212. 
 liability of, for costs of re-sale, 200. 
 interest, 202, 203. 
 rents and profits, 203. 
 may be authorized to verify abstract, 213. 
 right of, to rents and profits, 202, 203. 
 receiver, not to bid at, without leave, 107. 
 rents and profits, who entitled to, after, 202, 203. 
 report on, form of, 100, 083. 
 
 confirmation of, 200. 
 
 requisitions on title, vendor to give notice to deliver, 211. 
 
 delivery of, after time for exi)U'ed, 211. 
 how disposed of, 212. 
 service of, time for, 211. 212. 
 
 re-sale, when ordered, 107, 200, 201. 
 costs of, how borne, 202. 
 deficiency on, how borne, 202. 
 
1302 
 
 INDEX. 
 
 ;8ALES BY THE GOVnT—Coiitimie<l. 
 
 rescission of contract, 20H, 200. 
 reserved bid, Master may l?x, lU^y, KMl. 
 
 notification of, to auctioneer, VM>. 
 omission to fix, how remedied, KMl. 
 sale subject to, advertisement of, lit'), 
 result of, affidavit of, 199, 
 
 Master's certificate of, 199. 
 Mules of (!ourt, re^^tulating, 108-114. 
 
 ai)))ly to all references as to title, 211. 
 
 secret barfjain by purchaser to re-sell to vendor, effect of. 197. 
 
 setting aside, 197, 200,, 201. 
 
 solicitor having conduct of, duty of, 192. 
 
 receipt of purchase money by, effect of, 202. 
 
 vendor's, who is, 192. 
 
 liability of, for deposit, 189, 199. 
 
 special conditions, not to be resorted to unnecessarily, 191. 
 
 to be advertised, 19H, 191). 
 specific performance of, when not enforced, 20(1. 
 standing conditions of, 190. 
 
 conditions varying from, to be advertised, l!li<, 
 
 19(1. 
 taxes, liability for, 204. 
 tender, may be by, 191, 195. 
 title, delay in making, effect of, 203. 
 
 compensation for, 20.'i. 
 acceptance of, by taking possession, 207, 208. 
 failure to make, 203. 
 " good," when shown, 209. 
 c ejections to, time for delivering, 208. 
 
 See supra — objections— requisitions, 
 possessory, how proved, 210. 
 
 reference as to, 206, 208. See nuprn — abstract of title, 
 waiver of right to, 203. 20(1, 207. 
 See Abstuact of Title. 
 
 trustees, when entitled to conduct of, 192. 
 
 not entitled to bid at, 196, 197. 
 unreserved, rights of highest bidder at, 195. 
 upset price, Master may fix, 195. • 
 validity of, how impeached, 200. 
 vendor, solicitor of, who is, 192. 
 
 liability of, for deposit, 198, 199. 
 when not entitled to bid at, without leave, 190, 197, 198. 
 verification of abstract, neglect of vendor as to, 213. 
 
 by purchaser, may be authorized, 213. 
 
INDKX. 
 
 flATiES BY THE COinir—Coiitiii,i,<l. 
 
 vostinfi order, acceptance o." '204. ; • ' 
 
 coatH of, '214 
 
 Court may ;4rant, '214. 
 
 purchaser cannot be compelled to accejit, 'i'l. 
 
 vendor entitled to notice of application for, '21 1. 
 void, when, 197. 
 warrant, on, service of, I'.Cj. 
 without roservo, rit»ht of hijiheHt bidder at, I'.tK. 
 
 SATISFACTION OF JUDGMENT. 
 
 acknowledgment of, how to be oxecntRd, (').')8. ().")<». 
 entry of, 059. 
 
 SAULT STE. MARIE. 
 
 aBsizes for, when held, 91. 
 
 payment of money into Court with defence at, '218. 
 
 SCANDAL. 
 
 costs of motion to strike out for, 44;"). 
 impertinence, in interro<(atories, 445. 
 motion to expunge for, 445. 
 
 take proceeding off tiles for, 445. 
 proceedings may be struck out. for. 444. 445. 
 
 SCIENTIFIC PERSONS. See Exi-Kitrs. 
 Court may obtain assistance of, '2(!1. 
 
 SECURITY. 
 
 officers of Court to give, 110. 
 
 approval of, lid. 
 
 neglect to give, effect of. 1 1*'. 
 
 SECURITY FOR COSTS. 
 
 affidavit for, form of, 948. 
 amount of, 942, 947. 
 
 diminishing, 947. 
 increasing, 947, 948. 
 bond for, how to be given, 94t). 
 
 allowance of, 946. • 
 
 sureties in, 94r). 
 cases in which it may bs ordered, 939-941. 
 defendant, counter-claiming, may be ordered to give, '.115, 9K!. 
 dismissal of action, for not giving, 94(5. 
 foreign action pending, as a ground for, 945. 
 garnishee proceedings, may be ordered in, 945. 
 
 1308 
 
1804 
 
 INDEX. 
 
 HKCURITY FOR COUTH— ContinunL 
 
 illusory address, f^iven by plaintiff, an a >?round for, '.i t2. 
 informer, when insolvent, may bo required to niv(\ 1141 
 insolvency of plaintiff, not a (^roinul for, IHI, i(4r). 
 
 unless suin^for anotber, JIH. 
 penalty, 1141 
 interpleader procoodin>,'s, may bo ordered in, 1)4"). 
 libel, wben ordered in action for, 1)4.5. 
 Master's olilice, may be ordered in, 114(5. 
 
 motion for judf^mont, amount reipiired from plaintiff on, II4S. 
 nominal plaintiff, when ordered to j^ivo, !)44. 
 
 non-payment of costs of former action, when fjround for, 1)40, 1)11, lil."i. 
 order for, when obtainable on prwcipe, OH!), !)40. 
 
 motion to set aside, (i27. 
 
 ])r«'cipi', effect of, 1)40. 
 
 special application for, when necessary, !)40-l)4(>. 
 payment of money into Court, by way of, 1)47. 
 
 notice of, to be served, 1)47. 
 penal actions, in, 1)41, 1)40. 
 
 plaintiff having; property vithin jurisdiction, Jiow far an answor to 
 
 application for, 1)4H. 
 poverty of plaintiff no f^round for rec^uirinj;, 1)44. 
 residence out of jurisdiction, when a f,'r()Uiid for, 1)42, 1)43. 
 stay of proceedings in order for, how computed, 477. 
 time for yivin^i, 1)40. 
 
 vexatious action, whether ordered in, IflA. 
 waiver of rijjht to, 1)44. 
 
 SEDUCTION. 
 
 jury cannot bo requireil to answer (juestions in actions for, SI. 
 trial of action for. must be by jury, HI. 
 
 except by consent. Wl. 
 
 SEQUESTRATION. 
 
 adverse claims, how disposed of, 71'.). 
 attachment need not issue, to fouml ri','lit to, 71'.). 
 commission of, to wl:Dm to be directed, 720. 
 
 See //;/';•(/ — writ of. 
 contemner, when it may issue against, 71(), 717. 
 
 death of, effect of. 711». 
 contempt, may issue for, 7H). 
 
 default in payment of money, when it nuvy issue for, 720. 
 obstruction of sequestrator, 711). 
 payment of money, wben granted to enforce, 720. 
 staying, pending appeal, 71'J. 
 writ of, when it may issue on proiipe, 71(), 717. 
 
INDEX, 
 
 1806 
 
 uy, !)40-'.»i(5. 
 
 servud, '.)17. 
 
 liow far ail miswiT to 
 
 SEQUESTRATION— CoMf/m/f-if. 
 
 writ of, when it may iasue on orfler, 71!t, 7'2(). 
 
 adverse claimu to, how diHpoHud of, 71',), 
 choHen in action, how recovered under, 1\>*. 
 effect of, 717. 
 nature of, 717. 
 property liable to, 717. 
 
 goodH and chattelH, 717. 
 chtiiirH ill (iition, 717, 7lH. 
 ' documcntH, 717. 
 
 peMHioMH, and Halaries, 71H. 
 rents and prolits, 7lH. 
 how disposed of, under, 71S. 
 
 by sale, 7r.». 
 to whom to bo directed, 7'20. 
 
 SERVICE. See Adminihtuviiom— Cmanok ok Homcitok — Infant — Jrim- 
 
 MKNT — OllDEK — MoHTdAcm ACTIONS— PETITION — PETITION 01' HkUIT 
 — PlIOAUINOS— QuiKTINd TlTLEH — WllIT OF SOMMONM. 
 
 acceptance of, by solicitor, 2Hrt, 4(w. 
 
 address for, of defendant, or solicitor, not stated in appearance, 310. 
 illusory, {^iven in appearance, MIO, 811. 
 omission of, effect of, KiC), 4()7. 
 admission of, by solicitor, 4()i'>. 
 af!idavit of, of writ, form of, 081. 
 af^ent, cannot effect on himself, as a^'ent for another solicitor, itili. 
 
 on, not Mood, unless at^ent is booked, lIKi. 
 corporations, on, 21)7, '2!t8, 2i)S). 
 
 country aj^ent of solicitor, when to bo served, 4(55, 4(i(). 
 firms, im, 2!»(), 2!i7. 
 hours for effectinj^, 47i(. 
 infants, how effected on, 2I);{-5. 
 letter box, by puttim^ paper in, insutlicient, 310. 
 lunatics, how effected on, 2S(5, 2!)C. 
 married woman, how effected on, 2!i;t. 
 notice of motion, of, may be dispensed witli, 474. 
 
 to commit client, of, when it may be made on 
 solicitor, ")14. 
 notices may be served in any county, 4()5. 
 Official Guardian, when to be made on, 2!)H. 
 of attaching order, aj^ainst absconding; debtor, 474, 84'J, 850. 
 counterclaim, 41o, 41(1. 
 order, 474. 
 
 orif^inal, showing, when not necessary, 474. 
 to continue proceedings, 505-507. 
 produce, 515. 
 
 /It. 
 
 ^ 
 
 
 ~^f /-ty ^ A^vU^V,<.«y "^-^^e^ ^y ^ y 
 
1306 
 
 SERVICE —Continued. 
 
 INDEX. 
 
 of writ of summons, how effected, 288-306. ." - 
 
 against absconding debtor, 849, 850. 
 indorsement of date of, 292-293. 
 
 when unneces8k>'v , 29ii. 
 out of Ontario, of writ of summons, 300-301, 303-305. 
 other initiatory proceedings, 303. 
 allowance of, to be obtained, 300, 303, 30G. 
 partners, on, 296, 297. 
 
 personal, when necessary, 473. ' 
 
 pleadingb, may be served in any county, 465. 
 posting up in office of Court, when good, 466, 467. 
 .si)licitor, acceptance by, when it need not be verified, 465. 
 
 of writ, to be verified, 465, 605. 
 absconding, how effected on, 466. 
 omitting to name agent, how effected on, 466. 
 on record, may be effected on, 466. 
 See — Change of Solicitob— Somcitok. 
 substituted, of writ of summons, 288-306. 
 
 other proceedings, 290, 291. 
 lime for, 479. 
 
 SETTING DOWN. . 
 
 appeal from report, 695. 
 
 Chambers, to Judge, 690, 691. 
 
 Divisional Court, 692. 
 C. C, to Court of Appeal, 687-689. ' ' 
 
 demurrer, 480, 522. 
 
 Long Vacation not computed in tinio for, 4H0. 
 for hearing on further directions, 645, 646. 
 special case, 522, 
 
 SETTLED ACCOUNT. 
 
 Master may inquire as to, 177. 
 
 SETTLED ESTATES. See Infant. 
 
 application for lease, or sale of, how made, 26, 
 
 of inf-^.nts, jurisdiction of H. C. J. to order sale, or lease of, -li, 27. 
 
 sale of, how authorized, 26, 27. 
 
 proceeds of, how to be applied, 26. 
 examination of married women interested in, unnecessary, 26. 
 
 SET-OFF. ., . 
 
 amendment of, by defendant, 451. 
 
 time for, 451, 452. 
 
INDKX. 
 
 1307 
 
 SET-OFF— (7on«j'n«ed. ' . 
 
 claims ari..ing after action, cannot be, 405. 
 
 which are subject of, 405-407. 
 iiaallowance of, when prohibited by statute, 407. 
 how pleaded, 405-407. 
 of costs, when allowed, 915-917. 
 
 action brought in wrong Court, 900-!t02. 
 damages and costs, when allowe.i, 915-917. 
 
 not to prejudice solicitor's lien, 91"i-917. 
 
 uted in time for, 480. 
 
 SHEKIFF. See Bailable Proceedinos— I.vtkupleadeh — Repj-kvin. 
 
 arrest by, before going out of office, 731. 
 attachment against, for not returning writ, 732, 7B3. 
 
 how to be made returnable, 
 733. 
 when it may issue, 733. 
 bailiff of, on demand to return process, etc., to Sheriff, 733, 734. 
 clerk of, on demand to return process, etc., to Sheriff, 733, 784. 
 costs of, in interpleader matters, jurisdiction as to, 939. 
 
 liability for, for not returning writ, 732. 
 custody, close, may be committed to, for contempt, 733. 
 demand of return of writ, neglect to comply with, 731. 
 Deputy Sheriff, on demand to return process, etc., to Sheriff, 733, 734. 
 dischni^e of execution debtor from custody, when authorized, 734. 
 expenses of. See infra — fees, 
 execution to. See Execution. 
 fees payable to, 937, 938. 
 
 bill of, to be delivered, 938. 
 disputes as to, how adjusted, 938. 
 tariff of, 1100- 1105. 
 taxation of, 938, 939. 
 
 payment before, cannot be enfoi ctd, 938-9 
 when forfeited, by delay to return writ, 731. 
 habeas corptts against, 733. 
 
 how to be made returnable, 733. 
 officer of, on demand to return process, etc., to Sheriff, 733-734. 
 order to bring in body, when it may issue against, after he has 
 retired from office, 731. 
 return writ, may issue against, on precipe, 730, 731. 
 personal service of, when not necessary, 732. 
 poundage of, may be levied under execution, 723. 
 
 when entitled to, 723, 724, 937, 938. 
 restitution by, of money levied, pending appeal, 82. 
 sequestration, to be directed to, 720. 
 
 powers of, under, 717-719. 
 
1308 INDEX. 
 
 SHORTHAND REPORTERS. • 
 
 appointment of, 122. ■. • 
 
 duties of, 122. 
 
 moneys received by, how applied, 2t)0. 
 
 notes of, copies, how ordered, 2(J0. 
 
 3, to be delivered on motion for new trial, 6('»!), (170. 
 appeal from .Tudj^eat trial, (W.\, 
 
 (170. 
 oath of, 122. 
 
 SINGLE JUDGE. See Judok. 
 
 appeal from, to Divisional Court, 71, 72. 
 Court of Appeal, 71, 72. 
 business to be taken by, 71. 
 
 duty of, as to, 71. 
 constitutes a Court, 71. 
 decisions of, how far biudinj^ on other Courts, 72. 
 
 SITTINGS. See Cii.vmukuh — Couht ov Appe.vl — Divisional CociiT—HKai 
 
 COUUT OF JlTMTICK. 
 
 absence of Judf^e, at openinf^ of, 02. 
 adjournment of, by Sheriff, 93. 
 criminal cases, for trial of, !ll. 
 
 special, 92. 
 county town, to be held at each, 90, 91. 
 for trials, where to be held, 90-92. 
 Judge, holdint» without commission, 129. 
 
 retired, holding,' witlioiit commission, 129. 
 Queen's counsel, holding without commission, 129. 
 
 SLANDER. 
 
 jury cannot be required to answer questions, in actioiu< for, HH, 8!l. 
 trial of action for, must bo by jury, HI. 
 
 e.xcept by consent, SI. 
 
 SOLICITOR. See Change of Sdlicitou — Salks by the Cocut— Soi.iti- 
 ■roiis and A(ient.s' Book — Soi.iciToii and Client. 
 
 acceptance of service of writ, by, 288. 
 
 acting for opposite party, may be restrained from, -1()9. 
 
 acting without authority of client, 28(1, 287. 
 
 address of, to be indorsed on writ of summons, 278. 
 
 admissions of service, by, 4(1.'). 
 
 affidavits, order to answer, 2;j8. ' ■ 
 
 See Affidavits. 
 agent of, cannot serve himself as agent for another 9ohv.itor, JtGfi. 
 
INDEX. 
 
 1309 
 
 )nalCouiit— Hi<iii 
 
 er Boliwjtor, 1C(». 
 
 SOLICITOR— CoHdHMerf. 
 
 agent of, name of, to be entered in solicitors and agents' book, 250. 
 
 See SoLiciTcnis and Agents' Book. 
 when he may be served, 40.'), H>C>. 
 appointment of, by snitor acting in person, 408. 
 
 attachment, liable to, for not comninnicating order to produce to 
 
 clieni, .515. 
 • entering appearance i^yiirsnant to 
 
 undertaking, HIO. 
 bill of, time for, delivery of, under order, 927. 
 change of, order for, when necessary, 407, Kill, 
 setting aside, 4(i8. 
 not granted ex jxirte, on solicitor's application, 465). 
 payment of costs not a condition, 407, 408. 
 proceedings taken by new solicitor, without order for, 408. 
 special application for, when necessary, 408. 
 when a discharge of solicitor by client, 408. 
 costs, lien for, on documents of client, 401(, 470. 
 fund in litigation, 471. 
 
 collusive compromise, effect of 
 on. 472. 
 set off, not allowed to prejudice, '.ll.'j, 917. 
 defending in person, of, 1009. 
 country, Toronto agents of, to be entered, 2r)9, 200. 
 death of client, operates as a discharge by client, 471. 
 discharged by client, effect of, as to lien, 470-471. 
 dischai'ging himself, effect of, on lien, 470, 471. 
 estate recovered, has no lien on, for costs, 47o. 
 injunction, against acting for opposite party, 409. 
 
 divulging secrets of former client, 409. 
 hen for costs, not to be prejudiced by. set of, 915-917. 
 on books and papers of client, 409-470. 
 
 nature of, 409, 
 extent of, 409, 470. 
 taking security, how it 
 affects, 470. 
 fund, 471. 
 
 may be actively enforced, 471. 
 client cannot defeat. 471. 
 effect of, on riglit of set-off between parties, 
 
 471. 
 Local Master, debarred from practising as, in certain cases, 118. 
 
 misconduct of, 258, 259. 
 
 name of, to be indorsed on writ issued by, 278, 279. 
 
 documents by which proceedings com- 
 menced, 279. 
 
<■ ' t 
 
 1310 
 
 SOhlCITOR— Continued. 
 
 INDEX. 
 
 non-payment of money by, 258. 
 
 notice of motion to commit client for non -production, etc., may be 
 
 served on, 514. 
 order for production, or inspection of documents, may be served on, 
 
 515. 
 personally ordered to pay costs, may appeal, 899. 
 ; posting up in office of Court, when good service on, 46(), 4(i7. 
 retainer of, whether it continues after judgment, 469. 
 roll of, custody of, 257. 
 signing, 257, 
 striking off, 257-259. 
 
 scanduloua matter, liability for costs of, 445. 
 
 secrets of client, may be restrained from divulging, 4(59. 
 
 security, taking, effect of, on lien, 470. 
 
 service on, how effected, 466, 467. 
 
 solicitors' and agents' book, 259. See Solicitors' and Agents' Book. 
 
 striking off rolls, when ordered, 257-259. 
 
 subpoena to appoint, when necessary, 468. 
 
 summary application against, 145. 
 
 taxation as against client, 928. See SoiiiciToit and Client. 
 
 Toronto, names and address of, to bo entered, 259. 
 
 to state whether writ issued with his authority, 286 
 
 disclose plaintiff's address, 28(5. 
 trial, neglect to attend, 599, 664. 
 
 trustee, when entitled to costs against trust estate, 173, 
 undertaking to enter appearance, enforcing, 288. 310. 
 
 SOLICITORS' AND AGENTS' BOOK. , « 
 
 entries to be made in, 269, 260. 
 how to be kept, 259, 260. 
 
 SOLICITOR AND CLIENT. 
 
 action against client for costs, time for bringing, 929. 
 bill of costs, to be signed by solicitor, 929. 
 
 action on, time for bringing, 929, 
 
 adding to, after delivery, when allowed, 932, 933. 
 
 assignee of solicitor, may sign, 929. 
 
 conveyancing business, 930. 
 
 counsel fees, 930. 
 
 items of, to be in detail, 929. . ' ' 
 
 judgment m action on, form of, 929. 
 
 taxation of, 928, 929. 
 
 cannot be ordered before delivery. 930. 
 place of, 929. 930. 
 
 ii.!^fe 
 
INDEX. 
 
 1311 
 
 , etc., may be 
 
 be served on, 
 515. 
 
 I 4(i7. 
 
 Agents' Book. 
 
 ENT. 
 
 L7H. 
 0. 
 
 !)S2, 933. 
 
 delivery, i(30. 
 
 SOLICTOR AND CLIENT— C'ont/Ki<erf. 
 
 bill of costs, to be signed by solicitor, 929. 
 
 which may be taxed, 930. 
 conveyancing, bill for, whether it can be referred to taxatioji, 930. 
 costs allowable on taxation between, 922. 
 
 bill of. action on, time for bringing, 929. 
 , time for delivery imder order, 927. 
 
 interest on, when payable, 934. 
 of taxation between, how payable, 938, 934. 
 
 security for, when ordered, !I31. 
 taxable between, 1070. 
 counsel fees, bills for, may be referred to taxation, 930. 
 County Court, business, bill for, when referred to taxation, 930. 
 death of client, operates as a discharge by client, 471. 
 discharge of solicitor, by client, effect of, 470, 471. 
 
 himself, effect of, 470, 471. 
 
 injunction against solicitor, acting for opposite party, 4(39. 
 interest on costs, when recoverable, 931. 
 
 Taxing Officer cannot charge solicitor with, 934. 
 
 negligence, as defence to liability on bill, 931. 
 
 nominal plaintiff, when not entitled to order for taxation, 930. 
 
 order for delivery of bill of costs, 927, 930. 
 
 when obtainable on pnecipc, 930,934. 
 taxation of bill of costs, 928-930. 
 
 effect of, when obtained by client, 
 
 929, 930. 
 " ' obtained by solicitor, 
 
 930. 
 special application for, when necassary, 931. 
 
 directions in, 933. 
 powers of Taxing Officer under, 931. 
 pnectpi', when obtainable on, 930, 934. 
 
 effect of, 934. 
 reservation in, of question as to retainer, etc., 
 
 931. 
 party chargeable, when entitled to taxation, 932. 
 payment by client, under order for taxation, 928. 
 retainer, disputing, 931. 
 
 secrets of client, solicitor may be restrained from divulging, 4()9. 
 " special circumstances," what are, 931, 932. 
 taxation of costs, between, 928, 929. 
 
 appeal from, 935. 
 costs of, 933, 934. 
 objections to, 935. 
 
 form of, 93R. 
 
1312 
 
 INDEX. 
 
 SOLICITOR AND CLIENT— Coiitimed. 
 
 taxation of costs, between, order for, effect of , 928. 
 
 when not to be granted, 931. 
 reference, when it may proceed ex parlr. 
 
 933. 
 review of, 935. 
 
 proceedings on, 930, 937. 
 taxing officer's report on, 933. 
 third party when entitled to taxation of bill, 932, 934. 
 
 SPECIAL BAIL. See Aiiscondino DEUTon — Bailable Proceedings. 
 
 SPECIAL CASE. 
 
 affidavits modifying, not admissible, 531. 
 
 amendment of, 531. 
 
 appeal from judgment on, 531. 
 
 to Privy Council, may be in form of, 701. 
 copies of, to be delivered for Judges, 533. 
 copy of, to be left for Judge, 522. 
 Court, not bound to answer every question stated in, 531. 
 
 declare future rights, 531. 
 examples of, 531. 
 
 infant party, sanction of Court necessary in case of, 533. 
 judgment on, agreement to, 529, 530. 
 lun'itic party, leave of Court to set down, necessary, 533. 
 married woman, leave of Court to set down when necessary, 533. 
 preparation of , 532, 533. 
 reopening, when allowed, 531. 
 right to begin, 531. 
 setting down, 522. 
 signature of, 532. 
 
 setting down, leave of Court when necessary for, 533. 
 stating, after writ, 529. 
 style of cause in, '1()3. 
 
 when persons not sui juris are interested. 
 
 amendment of, 28. 
 appeal from judgment on, 28. 
 costs of, 28. 
 form of, 27, 28. 
 
 jurisdiction of Court as to, 2(5-28. 
 lis pendem, registration of, as, '.lii 
 parties to, 2()-28. 
 service of, 2(5. 
 ■ setting down, 533. 
 
 signature of, 28. 
 
 
INDEX. 
 
 1818 
 
 ^HOCEEDINGS. 
 
 SPECIAL EXAMINERS. 
 
 appointmenc of, 122. 
 
 examination of judgment debtor, may be taken by, 73i, 737. 
 
 SPECIFIC PERFORMANCE. See Salf« by the Codrt. 
 
 contraots, when enforced by, 16. 
 
 for HHile of business, when enforced by, 17. 
 chattels, when enforced by, 17. 
 land by Crown, not enforced by, 18. 
 patents, when enforced by, 17. 
 shares, when enforced by, 17. 
 nej^ative, when enforced by, 17. 
 positive, how enforced by, 17. 
 regulating trade prices, etc., 17. 
 jurisdiction of H. C. J. as to, 11, 16, 17, 18. 
 relief, discretionary, 16, 
 separation deeds, may be enforced by, 17. 
 when refused, 16. 
 
 STATED ACCOUNT. 
 
 Master may inquire as to, 177. 
 
 STATEMENT OF CLAIM. See Pleadinos. 
 
 amendment of, on adding parties, 362. 
 
 allegations in, insuhicient, effect of, 619. 
 
 " common counts " in old form, inadmissible, 430 
 
 defendant dispensing with, .S99. 
 
 delivery of, time for, 400-402. 
 
 when defendant in custody, 8.32, 833. 
 with writ, authorized, 402. 
 different causes of action, combined, trial of, how ordered, 385. 
 discovery only, for, 436. 
 dismissal of action, for not delivering, 575, 576. 
 
 making discovery, 678. 
 
 want of prosecution, 577. 
 dispensing with, 399, 401. 
 distinct claims, to be stated separately, 437. 
 embarrassing, may be struck out, 385. 
 enlarging claim made by writ, 614. 
 form of, 400. See Forms. 
 
 good cause of action must be shown .^y, to entitle plaintiff to judg- 
 ment, 637, 638. 
 irregularity, in delivering, 401. 
 
 striking out for, 401. 
 judgment on, in default of defence, 618, 619. 
 
 JA. 83 
 
1314 
 
 INDEX. 
 
 STATEMENT OF CLA.ni— Continued. .?.' ■ 
 
 married woman, against, (51!). 
 
 notice in lieu of, when writ specially indorsed, 102, 103. 
 
 particulars of, may be ordered, 430. 
 
 relief claimed, to be stated in, 430. 
 
 general, prayer for, effect of, 436. 
 service of, on parties added by amendment, 302. 
 
 time for, 362. 
 style of cause in, 463. 
 time for delivering, 399-401. 
 
 extending, 401, 402. 
 
 expiration of, delivery after, 401. 
 when necessary, 3!)9. 
 writ, when to be filed in lieu of, 401, 402. 
 
 STATEMENT OF DEFENCE. See Pleadinos. 
 
 amendment of, after 8tat3ment of claim amended, 451-453. 
 counter-claim, defence to, 410. 
 
 time for plaintiff to deliver, 417. 
 vdefault in delivering, note may be entered, 420. 
 
 judgment on, 015, 010. 
 defence arising after action, may be pleaded, 454. 
 
 confession of, 450, 457. 
 
 costs, 450, 457. 
 defence filed, how set up, 455. 
 distinct defences, to be stated separately, 437, 
 ejectment, in, how framed, 441, 442. 
 form of, 403. See Foiois. 
 
 *' never indebted," in old form, struck out, 430. 
 nondelivery of, when statement of claim dispensed with, 616. 
 not closing pleadings, when it may be entered, 426. 
 " not guilty," in old form, inadmissible, 430. 
 " not guilty by statute," may be pleaded, 442, 443. 
 
 other defences not allowed with, 442, 413. 
 reference to statute required in, 443. 
 payment into Court, 568. 
 
 to be notified in, 509. 
 relief claimed, to be specified in, 436. 
 " set off," in old form, struck out, 430. 
 Statute of Frauds, defence of, 43!), 440. 
 
 Limitations, defence of, 434, 435. 
 striking out, for default in making discovery, 490, 491, 513, 514. 
 
 judgment after, 016, 619. 
 style of cause in, 403. 
 tender, when pleaded, money must be paid into Court, 571. 
 
INDEX. 
 
 1315 
 
 , 490, 491, 513, 514. 
 
 nto Court, 571. 
 
 STATEMENT OF DEFEtiGE— Continued. 
 
 time for delivery of, 408-405, 
 
 expiry of, delivery after, 404-405. 
 withdrawal of, leave required for, 574. 
 
 STATUTE. See Impkiiul Statctks. 
 
 Dominion, validity of, jurisdiction of H. C. J. as to, US. 
 judf^ment as to validity of, appealable, 38. 
 Provincial, validity of, jurisdiction of H. C. J. as to, 38. 
 validity of, action for declaration as to, not to be entertained without 
 notice to Attorney-Generals, 38. 
 
 STATUTE OF FRAUDS. 
 
 demurrer, defence of, cannot be raised by, 440. 
 pleading, 439, 440. 
 
 STATUTE OF LIMITATIONS. See Admlnistration. 
 absentees. Court will not set up, in interest of, 7(52. 
 administration, judgment for, effectof, as against mortgagee in posses- 
 sion, 702. 
 arrears of interest, how far barred by, 1(14. . 
 
 secured by covenant, 1()4. 
 when charged on land, 1()4. 
 creditor, right of, to set up against claims of otlier creditors, 7()2. 
 death of creditor, effect of, on running of, 7(52. 
 defence of, how raised, 434, 435. 
 
 heir, when entitled to set up, to claim against personal representa- 
 tive, 301. 
 interest, how far a bar to recovery of, 1()4. 
 on purchase money, 107. 
 six years' only, recoverable against land, 1()4. 
 twenty years', recoverable on covenant, 1()4. 
 judgment for administration, effect of, as to, 7()2. 
 
 against mortgagee in pos- 
 session, 702. 
 legatee, right of, to set up in administration action, 7(J2. 
 married woman, when it runs against, 337. 
 mortgagee in possession, how far a defence by, 1()4. 
 next of kin, right of, to set up in administration action, 301, 702. 
 not affected by Rules as to time, 477. 
 partnership account, may be pleaded as a bar to, 104. 
 personal representative, not bound to set up, 702, 
 pleading, 434, 435. 
 
 when necessary, 104. 
 time for bringing action under, cannot be extended, 477. 
 
 
1316 
 
 INDKX. 
 
 STATUTE OF LIMITATIONS -Continued. 
 
 trustee, cannot set up, in respect of breach of trust, Iti, -l?. 
 when it runs, aKftinst creditor, 7<i'2. 
 
 STAYING PKOCEEDINCIS. 
 
 compromise, enforcinf?, by, i'A, 4''. 
 
 coats, fur non-iniynient of, 43. 
 
 cross action, in, 44. 
 
 jurisdiction of Court as to, 42-44. 
 
 non-disclosure of address of plaintiff, for, 28fi, '287. 
 
 names of parties suint^ in firm name, for, 287. 
 non-payment of costs, for, 4H. 
 notice of application for, to be niven, 44. 
 prosecuted without authority, 28t'), 287. 
 eecond action, pending in Ontario, 44. 
 
 abroad, 44. 
 time of, how computed, under order for security for costw, 477. 
 two actions for same cause, 44. 
 vexatious, 4B. 
 writ issued without authority, 28(i, 287. 
 
 BTENOGllAPHERS. See Shorthand Keportkhs. 
 
 STOP ORDER. 
 
 application to pay out, after, 2<'3o. 
 
 caveat, may be lodged with Accountant, pending application fcjr, 255. 
 
 costs of, 25G. 
 
 Cr^ iitofii' Rdief Act, application of, to, 255, 256. 
 
 effect of, 255. 
 
 execution creditor, may obtain, 255. 
 
 liability of person obtaining, 254, 255. 
 
 power of Court to grant, 254, 255. 
 
 priorities, how affected by, 255, 250. 
 
 service of, 250. 
 
 solicitor's lien, cannot be defeated by, 250. 
 
 STYLE OF CAUSE. 
 
 in affidavits, 403. 
 
 notices, 403. 
 
 petitions, 4C3. 
 
 pleadings, 403. 
 
 special case, 403. 
 short, when it may be used, 403. 
 
 SUBPOENA, WRIT OF. 
 
 memorial from registry, to produce, order required for. 583. 
 order for, when necessary, 533. 
 
lanie, f«>r. -^7. 
 
 for coetH, 477. 
 
 appHcatiuii U>r, MG. 
 
 INDEX. '^^"^ 
 
 ■SUBPCENA, WRIT or-CoMf/HiW. 
 
 recordH. to produce, order for, when required, r^m. 
 
 teHtu of, ii'M. 
 
 witness in support of motion, may issue to, r,l4. 
 
 fiUITOUS' FEE FUND ACCOUNT. 
 
 losses may be paid out of, 120. 
 
 objei't of, 1'20. 
 
 surplus interest to be transferred to, I'iO. 
 
 at credit of Official Guardian's accouni. to be transferred to, 
 
 11G> 
 aUPKHHKDKA^. See lUiMnr.E PKocKi'.i'iNim. 
 
 SUPRKMi: COURT OF JUDICATUUH. 
 
 constitution of, B, 4. * 
 
 Cotiucil of Judges of, powers of, as to vacations, til). 
 
 Divisions of, 4. 
 
 does not sit as a Court, 4. 
 
 Jud^'es of, i. „ ,«r 
 
 to consider procedure and practice annually, 10a. 
 
 officers of, 4. 
 
 Ru/fx of Court, power to n\ake, 102-104. 
 
 SURROGATE CLERK. 
 
 copy of order of H. C. .1. appointing administrator, to be tnunnuttea 
 
 ' to, :jh2. 
 SUSPENSE ACCOUNT. See Accountant of Suphemk Codht. 
 
 TABLES OF RULES, ORDERS, AND STATUTES, CONSOLI- 
 DATED, 1107. 
 
 Chancery Orders, 1113- 120. 
 Common Law Rules, 1107-1113. 
 Court of Appeal Orders. 1128. 
 J<i(/cs under Jud. Act, 1120-1127. 
 
 of H. C. J., 1127-1128. 
 Statutes, 1120- 113)). 
 
 TAKING OFF FILES. 
 
 scandal, for, 44.">. 
 
 TARIFFS. , ■ 
 
 of fees, to counsel, 1084-1089. 
 
 officers of Court, 109010'.)'.). 
 
1318 
 
 TMIIFFS— Continued. 
 
 INPKX. 
 
 of fees, to Shoriffaiiiul coroners, in civil matters, 1100-110;i. 
 
 solicitors, 10(5y.l08y. 
 Rules as to, 023, 924. 
 
 ♦N 
 
 TAXATION. See Cohtd — Solicitor and Cuknt — Taxino Offu kiis. 
 
 appeal from, to Judge, ()!)(), 935. 
 
 Master in Chambers, fiOS. 
 Ordinary, (598. 
 award, imder, 917. 
 ■ " costs exceediiiK ^30, 913. 
 
 defendants improperly severintJ, 911, l()(i9. 
 express reference for, not necessary, 913. 
 notice of, one day's sufficient, 913. 
 
 need not bo served on defendant not appearin{^, 913. 
 parties entitled to attend, 913. 
 party and party, between, 921, 923. 
 review of, how obtained, 93.'5. 
 
 proceedings on, 93(5, 937. 
 revision of, wlien necessary, 917. 
 
 Taxing Otticer's duty on, 91H, 919. 
 
 scale applicable on, when action brought in wrong Court, 900-903. 
 
 BheriiT's fees, of, 938, 93i). 
 
 solicitor and client, between, 928-929. 
 
 See SoLiciTDu and Client. 
 defending in person, of, 10fi9. 
 Tariff of Fees. See Taiufi's. 
 
 Taxing Officer has no power to allow more than Tariff specifies, 10fi9. 
 may inquire into the truth of affidavit of disburse- 
 ments, 1098. 
 
 TAXES. See Quieting Titles — Sales hy the Coubt. 
 
 TAXING OFFICERS. See Costs— Ta.xation. 
 
 affidavit of disbursements, may inquire into truth of, 1098. 
 
 appeal from, 188, (196, 698, 93.5. 
 
 cannot allow more than Tariff authorizes, 1069. 
 
 costs exceeding $30 to be taxed by, 913. 
 
 See Costs. 
 duty of, on taxation between solicitor and client, 931, 933. 
 
 review of taxation, 934, 93"). 
 evidence before, 2.57. 
 functus officio, when they are, 937. 
 local, who are, 2.56. 
 
 powers of, 256. 
 
 13i '-" 
 
INDEX. 
 
 1819 
 
 0-1105. 
 
 Ol'FK KIIS. 
 
 nirint,', '.113. 
 
 Court, '.tOO-'.tO:i. 
 
 LIENT. 
 
 iriff specifies, 1000. 
 idavit of disburse- 
 ments, 10!)8. 
 
 I of, 1098. 
 
 JHl, U;S3. 
 
 -Tknani in Com- 
 
 TAXING OYFICEUH -Coiitiniiid. 
 
 powers of, to adminiHter oaths, etc., 257. 
 
 order production, '2i>7, 
 flhoriff' 8 fees, duty on taxation of, 1)89. 
 taxation of, !»:<H, lIUO. 
 
 appeal from, 93'.t. 
 Toronto, at, who arc, •2r)(i. 
 
 appointment of, liosv to be made, 108. 
 
 oath to be taiten by, 10!). 
 
 officers of Supremo Court, 108. 
 witness' fees, power of, as to, 10'.t7-10!»!). 
 
 TENANT. See Tf.na.nt at Will— Tenant fou Lifj.; - 
 MON — Tenant in Tail. 
 
 distress, injunction to restrain, 58. 
 
 rights of, after aj^ruoment, but before lease, 07. 
 
 TENANT AT WILL. 
 
 improvements by, not allowed, 169. 
 
 TENANT FOR LIFE. 
 
 improvements by, not allowed, 1()9. 
 partitioi:., when entitled to claim, 779. 
 waste by, when restrained, IC. 
 
 TENANTS IN COMMON. 
 
 improvements by, when allowed, 1()9, 780. 
 
 incumbrance, paid by, when entitled to be allowed, 17'2, 
 
 occupation rent, when liable for, 780. 
 
 of equity of redemption, rij^hts of, as to redemption, 2Hn, 236. 
 
 partition, when entitled to claim, 779. 
 
 rents and profits, how far liable to account for, 780. 
 
 TENANT IN TAIL. 
 
 waste by, when restrained, 16. 
 
 TENDER. See Statement of Defence. 
 to mortj^a^ee, effect of, 229. 
 
 TERMS. 
 
 abolished, except as measure of time, (58, 69. 
 
 notice, where no proceedings taken for a year, abolished, 107. 
 
 TELTAMENTARY MATTERS. 
 
 jurisdiction of H. C. J. as to, 28, 29. 
 
 THIRD PARTY. See Attachment op Debts — Parties— Solicitor and 
 Client . 
 appearance by, to counterclaim, lit*, 
 costs, as against, 868, 809. 
 
 : 
 
 I 
 
1820 
 
 INDEX. 
 
 THIRD PkBTY— Continued. 
 
 counter-claim against, 408, 415. 
 
 service of, 40i^, 4H! 
 
 whether he can plead, 40rt. 
 
 default of pleading, judgment for, how obtained bj', 620. 
 
 against, (>20. 
 defence by, 371, 416. 
 
 defendant, substitution of, as, 871. 
 
 directions as to conduct of proceedings against, 868, .369, 370, 371. 
 
 judgment against, when a ro-defendant, 870. 
 
 TIME. See Appeai. — Coonx of Appkat, 
 Officers of Court — Reply. 
 
 -DeMUBREK — JolNDEIi OK IssUE— 
 
 abridgment of, 480,481. 
 
 chattel mortgage, time for registration of, not affected by Jtiiles, 477 
 
 days, computation of, 476. 
 
 enlargement of, 480, 4Hl. 
 
 for bringing action, cannot be granted, 477. 
 
 filine chattel mortgage, cannot be granted, 477. 
 for accepting money paid in as satisfaction, 569, 570. 
 amending statement of claim without leave, 451. 
 
 counter-claim, or set off, without leave, 451, 4")2. 
 pleadings without leave, 4,50-452. 
 under order, 453. 
 appealing from order in Chambers, 690, 692. 
 
 extending, 691. 
 C. C. to Court of Appeal, 686, 687. 
 judgment of trial Judge, 666. 
 attendance on appointments, 479. 
 
 motions in Chambers, 479. 
 delivering amended pleading, 454. 
 appeal book, ()81, 682. 
 copies, after demand, 464. 
 defence, after security for costs ordered, 477. 
 entry of action for trial, 590, 591, 
 moving to discharge order to continue proceedings 566, 567. 
 
 for new trial, 66)!. 
 sale of goods under execution, 7"27. 
 lands under execution, 727. 
 service of ploadings. See Siwtement of Claim— St.vii;mi:nt oy 
 
 Defence —Reply. 
 setting down appeal fromC. C, 689. 
 
 motion for new trial, 669. 
 holidays, what are, 476. 
 
 when excluded from computation of time, 476, 480. 
 hours for service of proceedings, 479. 
 
 "^■mm 
 
INDEX. 
 
 1821 
 
 ot affected by Jlitlen, 477 
 
 be granted, 
 
 477. 
 
 
 , cannot be 
 
 granted, 
 
 477 
 
 569, 570. 
 
 
 
 iave, 451. 
 
 
 
 lout leave, 4 
 
 ".1, 452. 
 
 
 452. 
 
 
 
 692. 
 
 
 
 nding, 691. 
 
 
 
 , 686, 687. 
 
 
 
 , 660. 
 
 
 
 JF Claim — Statkmknt Of 
 
 )f time, 470, 480. 
 
 TIME — Continued. 
 
 " month " in Rules, means " calendar month," 475. 
 notice of motion, to be two clear days, 477. 
 trial ordinary, length of, .589. 
 
 short, length of, 589, 
 
 for giving, 585, 589. 
 renewal of writs, how affected by Rale. i as to, 477. 
 security for costs, defendant when to deliver defend' after, 477. 
 nervice of pleadings. See mpra. 
 
 Statute of Limitations, not affected by Riilex as to, 477. 
 stay of proceedings, computation of, 477. 
 stipulations as to, not of essence of contract, effect of, ."il. 
 Sunday, when not to be reckoned, 176, 477. 
 
 TITLE. See Austiiact of Titi.I': — Qitiktinc Titlks — Sai.ks nv 'tm; Cue 
 reference as to, procedure on, 207-214. 
 
 TORONTO GENERA!. TRUSTS CO. 
 
 investment of moneys in (.'ourt. by, 253, 254. 
 
 TRADE MARK. 
 
 infringement of, how restrained. 58. 
 
 TRANSMISSION OF PAPERS. 
 
 Local Officers, by, on pncciiw, 474. 
 
 default in, a contemi)t, 474, 475. 
 officers, by, to other officers, 475. 
 
 TRIAL. See Official Refekke. 
 
 adjournment of, 597. 
 
 costs of, 597. 
 at bar, subject n-.ust obtain order for. 588. 
 
 Crown entitled to, as of riglit, 5H8. 
 
 notice of, to be given to Registrar, 590. 
 begin, right to, at, 595. 
 cause lists, how to be made out, 591. 
 
 certificate of officer attending, judgment nuiy be entered on, 600. 
 costs of the clay, side bar rule for, abolished, 107. 
 counsel, addresses of, at, 594, 595. 
 
 omitting to attend, <')(i4. 
 counter-claim, proof of, at, 600. 
 Count; Court canes, in High Court, 94. 
 County Court, at. when ordered, 93. 
 damages, continuing, how assessed at, 597. 
 dsfendant not appearing at, 593. 
 defended actions, list of, to be made, 591. 
 different questions, of, in different modes, 587, ">s-i. 
 
1322 
 
 TRIKL —Continued. 
 
 INDEX. 
 
 English practice as to, 83. 
 
 entry of action for, 590, 501. 
 
 time for, 5<»0, 591. 
 
 equitable claims, mode of, 83-8(5. 
 
 issues, mode of, 59(1. 
 
 evidence omitted at, by mistake, etc., 595 . 
 
 no ground for new trial, 595. 
 withdrawal of, at, 599. 
 
 exclusion of witnesses at, 594. 
 
 exhibits at, how marked, 599. 
 
 not to be delivered out, when judgment reserved, 599. 
 
 findings at, entry of, how made, (iOO. 
 
 indoi'sement of, on record, 598, (JOO. 
 
 further consideration. Judge may adjourn for, 597. 
 
 High Court cases, of, in C. C. and vice versii, (501. 
 
 judgment at, (iOl. 
 
 indorsement of judgment at, on record, 598, (iOO. 
 
 inspection, by Judge at, 603. 
 
 jury at, ()04. 
 
 Judge at, powers of, 597, 598. 
 
 may inspect property, ()03. 
 
 reserve judgment, 597. 
 
 by, cases in which authorized, 83, 84, 59(5. 
 
 judgment, at, entry of, 598. 
 
 staying, 598. 
 
 indorsement of, on record, 598, (500. 
 
 juror, withdrawing, effect of, 592. 
 
 jury, actions, entry of, 591. 
 
 to be first disposed of, 90. 
 
 cases which must be tried by, 84. 
 
 disagreement of, at, 598. 
 
 how held, 588. 
 
 inspection of property by, 004. 
 
 judges may dispense with, 8(5. 
 
 notice for, when to be given, 85. 
 
 consent to waive, 8(5. 
 
 effect of, 85. 
 
 form of, 85. 
 
 striking out, 8(5. 
 
 right of parties to have, 83. 
 
 view by, (504. See /H/'n/— view. 
 
 legal and equitable, issues, 59(5-7. 
 
 non-appearance of parties at, 593 
 
 non attendance of counsel at, (1(14. 
 
 solicitor at, 5!t9, (5(54. , 
 
INDEX. 
 
 1323 
 
 TRIMj— Continued. 
 
 non-jury actions, entry of, for, 591, 
 nonsuit, motion for, at, 598. 
 
 effect of, 665. 
 
 when it may be set aside, 665. 
 notice of, 585. 
 
 defendant may give, 586. 
 
 form of, 589. 
 
 omission of plaintiff to give, effect of, .577. 
 
 short, 589. 
 
 Official Referee, reference to, for, 98, 99. 
 
 omission of plaintiff to give notice of, effect of, 577. 
 
 orders at, how signed, 592. 
 
 for amendment, 592. 
 place of, how fixed, 582, 583. 
 
 changing, ground for, 58;5-585. 
 plaintiff not appearing at, 593. 
 postponment of, 601. 
 
 Court may order, to notify third parties, 367. 
 record, for use of Judge at, 590. 
 
 indorsement of judgment on, 598, 600. 
 withdrawal of, 593. 
 reinamt, 593. 
 
 cannot be entered elsewhere, 592. 
 may be tried at subsequent sittings, 592. 
 notice of trial must be given, 592. 
 reply, right of, at, 595. 
 
 Attorney-General's right of, 595. 
 restoring cause, struck out at, 600. 
 separate, of different issues, may be ordered, 385. 
 short notice of, 589. 
 
 sittings of H. C. J. for, how regulated,, 90-92. 
 solicitor, absence of, at, 599, 664. 
 
 neglect of, to deliver necessary papers for, 599. 
 ten days' notice of, 589. 
 undefended actions, list of, to be made, 591. 
 venue, when local, 583. 
 verdict, special, Court may direct, 88. 
 
 general, when not receivable, 88, 
 view, by jury, 604. 
 
 affidavit to obtain, 604, 
 deposit required for, 604 . 
 
 TRUST AND LOAN CO. 
 
 deeds of, how executed, 211. 
 
 i 
 
r?; 
 
 
 U 
 
 1824 
 
 INDEX. 
 
 TRUSTEIC ACT (Imperial). 
 
 jurisdiction of H. C. J. under, 13. 
 vesting order may be granted under, 25. 
 
 TRUSTEES. See Pahties — Sales by the ConRT — Statuti; oi Limita- 
 tions — TausTH. 
 
 breach of trust by, Statnteof Limitations no defence, 4('., 47. 
 cestui que trust, how far bound by judgment against, 328. 
 
 represented by, 325-8. 
 compensation for services, allowance of, 174, 175. 
 
 priority of, to claim of creditors, 17.'). 
 costs, paid by, when recoverable, 173. 
 
 Master may moderate, 173. 
 liability as to, !»00. 
 right of, as to, 891. 
 
 when trust invalid, 173. 
 , he is a solicitor, 173. 
 
 severing, improperly in defence from co-trustoe, ill 4, lOii!) 
 when entitled to, out of estate, 891). 
 
 as between solicitor and client, 900. 
 he may be deprived of, 899. 
 
 ordered to pay, 899, 900. 
 expenses of bailiff, etc., when entitled to, 173. 
 executing trust, 173. 
 prior to costs, 173-4. 
 form of judgment against, when moneys received by, during infancy, 
 
 'MH. 
 improvements made by, allowance for, 1()9-171. 
 insurance premium, when entitled to recover, 172. 
 interest, liability for, 159-1()2. 
 investment by, neglect of, l.')9-l()l. 
 duty as to, 159-1(51. 
 losses on, liability for, l(i(>. 
 just allowances, Master may make, 159, 174. 
 lending trust fund to themselves, 1(11. 
 lien of, for costs and expenses, 173, 174. 
 maintenance, payments for, when allowed, 175. 
 minor, receiving money as, liability of, 17<t. 
 noticeto, of assignment, unavailing wlien trust being administered liy 
 
 Court, 25G. 
 occupation rent, liability for, 109. 
 parties, to actions by, or against, 325, 344. 
 profits made by, out of trust, liability to account for, 159, lliO. 
 receiver, when appointed in place of, 215. 
 severing, improperly, costs of, 914. 
 solicitors acting as, when entitled to costs, 173. 
 
INDEX. 
 
 1325 
 
 I-Statuti". 01' LnriTA- 
 
 bf creditors, 17"). 
 
 TllUSTEES— Cow^«i<erf. 
 
 solicitors receiving costs from, out of estate, not liable to refund, 173. 
 wilful neglect and default, liability for, 165, 166. 
 
 TRUSTS. 
 
 action for execution of, against absent defendant, S03, 305. 
 centiii que trust, how ia,r bound by judgment against trustee, 328. 
 chattels personal, of, writing unnecessary, 13. 
 
 real, of, writing necessary, 13. 
 execution of. parties to action for, 34.5, 349. . 
 
 foreign, execution of, when decreed, 349. 
 jurisdiction of H. C. J. as to, 11-13. 
 lands in foreign country, of, 13. 
 
 u 
 
 UPSET PRICE. See Sai.ks dy the Coritr. 
 
 being administered by 
 
 nit for, L?.», llU). 
 
 VACATION. 
 
 Christmas, 482. 
 
 how to be fixed, 69. 
 
 long, 482. 
 
 notice of appeal, when computed in time for giving, HO. 
 
 office hours in 133. 
 
 time for, 482. 
 
 VJiNDOR AND PURCHASER. See Ahsthact of Titlk -Puiuhaser— 
 Sales iiy thk Coriir— Svecific Pehfoumance. 
 
 lien of vendor against Ry. Co., how enforced, 387. 
 Railway Co., right of vendor against, how enforced, 387. 
 rescission of contract with Ry. Co., when crdered, 387. 
 
 VENUE. See Pi,A( k of Tkial. 
 
 County Court, jurisdiction of JMaster in Chambers, to cliange. 144. 
 
 VERDICT. See New Tiiial. 
 
 Divisional Court, power of, to enter, 640. 
 general, when not receivable, 88. 
 interest on, 90. 
 motion against, 6.59-664. 
 
 in High Court action tried in C. C, tiOl. 
 
 i 
 
 k 
 
i - 
 
 1826 
 
 INDEX. 
 
 YERDICT— Continued. 
 
 motion against, in County Court action tried in H. C. J., 001. 
 
 questions to be answered in lieu of, 8H, 89. 
 
 setting aside, G('5!)-(i04. 
 
 special, when it may be requii'ed, HH. .■ 
 
 i;STING ORDER. See Salks itv the Couut. 
 
 effect of, 24." • . . 
 
 entry of, x'equired, 520, 052. 
 
 . nee ov which grantsd, 25. 
 f.r 7"', r/f, ■. nen granted, 25. • 
 
 juri-tliction of H. C. J. to grant, 24, 25. 
 purchaser not hound to accept, 25. 
 
 taking, effect of, 25. 
 Trustees Act, i)0wer to grant under, 25. 
 
 VIEW. SeeJcKY. 
 
 w 
 
 WASTE. , 
 
 equitable, 15, 10. 
 
 tenant for life without impeachment of waste, when liable 
 
 for, 47. 
 legal, 15. 
 
 legal owner, by, restraining, 10. 
 
 mortgagee, when restrained from, 10. 
 
 mortgagor, when restrained from, l(i. 
 
 pendente lite, when restrained, 10. 
 
 staying, jurisdiction of H. C. J. as to, 11, 15, 10. 
 
 tenant for life, when restrained from, 10. 
 
 tenant in tail, will not be restrained from, 10. 
 
 threatened, may be restrained, 10. 
 
 WENTWORTH. 
 
 assizes for, when to be held, 91. 
 
 WILFUL NEGLECT AND DEFAULT. 
 
 agent, liability for, 107. 
 
 bailiff, liability for, 107. 
 
 executors, liability for, 105. 
 
 fraud, persons in possession by, not liable for, U\8. 
 
 Master may inquire as to, 158, 104-108. 
 
 witliout special direction, 158, 105. 
 mortgagee in possession, liability for, 100, 107. 
 
INDEX. 
 
 1827 
 
 WILFUL NEGLECT AND DEFAULT— Con<iu?u'(?. 
 
 partners, not liable for, 167. 
 
 personal representative, liability for, 1(55. 
 
 purchaser for value, evicted by better title, not liable for, IfiH. 
 
 sums charged, by reason of, to be distinguished in report, 180. 
 
 tenant for life, not liable for, U'lH. 
 
 tenants in common, not liable for, 107. .^ •• ,' 
 
 trustee, liability for, 105, 100. 
 
 vendor, liability for, 107. 
 
 WILLS. 
 
 jurisdiction of H. C. J. as to, 28, '20. 
 
 1^ 
 
 of waste, when liable 
 
 WITNESS. See Akfidavith — Commission to takk Evipence — Cross- 
 
 I'j XAMINATION E VIUKNCE — MaSTEU. 
 
 absent, order for exaii'ination of, 539, 540. 
 See Commission to take Evidence. 
 affidavits of, when admissible, 535, 530. 
 
 at trial, 540. 
 attendance of, for examination in support of motion, how procured, 
 
 544, 545. 
 for discovery may be ordered, 537,538. 
 to produce documents, may be ordered, 545. 
 bench warrant against, 535, 105!). 
 costs of, 920, 921. 
 
 default of, how punished, 544. • 
 
 depositions of, filing, 537. 
 
 may be proved by certified copies, 543. 
 discovery, examination of, for, may be ordered, 537, 538. 
 disobedience of order to attend for examination, 545. 
 
 produce documents, 545. 
 documents, attendance of, to produce, may be ordered, 545. 
 
 production by, before trial, 545. 
 examination of, may be ordered, 537, 538. 
 adjournment of, 540. 
 lie bene ease, 538. ' 
 
 order for, to be served, 545. 
 examination of, in support of motion, 544. 
 exclusion of, at trial, 594, 
 fees to be paid to, 544. 
 
 ' on examination, before trial, 545. 
 
 Master's office, evidence of, when to be given viid voce, 537. 
 non-attendance of, 535. 
 
 notice of examination of, in support of motion, 544. 
 open Court, to be examined vird mre in, 535, 530. 
 out of jurisdiction. See Commission to take Eviuence. 
 
1828 
 
 WITNESS— CoH(/nH«i. 
 
 INDEX. 
 
 party, inay be ordered to be examined as, 637, oSS. 
 prisoner, how broiiglitupto^jive evidence before trial, 540. 
 subpoena to, H'AH, ii'M. 
 «mf t'oce, to be examined, 536-587. 
 
 WORDS. 
 
 interpretation of, in Act 2, 3. , i 
 
 yiM/t'8 2, 3, 132. 
 
 WRIT. See Execution — Skqukstration — Writ of Summons. 
 
 of attachment against absconding' debtor, order in lieu of, 845, 847-8. 
 capias atl ren. abolished, 270, 828. 
 certiorari abolished, 875. . 
 
 injunction abolished, 870. 
 mandamus abolished, 8(i'2. 
 prohibition abolished, 875 
 replevin abolished, 854. 
 
 WRIT OP SUMMONS. 
 
 absconding debtor, in action against, 270. 
 
 absent defendant, how to be served with, 273, 274, 299, 302, 306 
 
 account, claim for, how indorsed, 285. 
 
 action to be commenced by, 2()9. 
 
 address, of plaintiff suing in person, to be indorsed, 278. 
 
 solicitor issuing, to be indorsed, 278. 
 allowance of service of, out of Ontario, 303-305. 
 amended, service of, 4()0. 
 amendment of, 4(10. 
 
 on adding defendants, 3(»1. 
 
 when wrong form served, 273. 
 capias ad ri'spumh'udiim, abolished, 270, 828. 
 claim to be nidorsed on, 270, 271, 280-280. 
 concurrent, when to be issued, 274, 275. 
 contents of, 2H9. 
 
 copy of, to be filed on issuing, 274. 
 costs, claim for, wlien to be indorsed, 284, 285. 
 date of, 274. 
 dower, in action for, 270. 
 
 indorsement of claim for, 286. 
 entry of, in Process Book, 274, 275. 
 
 lirm, dissolved before action, all partners to be served witl;, 342. 
 nervice of, see intra — service. 
 
 foreigner, how to be served witli, 272, 274, 302, 306. 
 for service out of Ontario, 274, 273. 
 
INDEX. 
 
 1329 
 
 WTIIT OF STTMMONS— f7on<i«ued. 
 
 indorsement of, amendment of, 4fi0. 
 
 address of plaintiff, or solicitor, 278, 279. 
 
 when action on behalf of class, 
 
 278. 
 
 claim on, 270, 271, 280-286. 
 
 form of, 281-284. 
 
 in actions on behalf of a class, 271. 
 • in representative character, 271. 
 
 infant, how served on, 293. 
 information, in action in nature of, 270. 
 
 issue of, 271, 272. 
 
 issued same day as cause of action accrued, 274 
 
 without authority, 286. 
 lit pendens, certificate of, 280. 
 vacating, 280,281. 
 
 lunatic, service of, on, 29iJ. 
 
 married woman, how served on, 293. 
 
 mortgage actions, indorsement of claim m, 285, 286. 
 
 next friend, cannot issue in person, 279. 
 notice in lieu of, how served, 306. 
 
 when to be served, 273. 
 Official Guardian, when to be served on, 293, 294. 
 parties added by amendment, service on, 35o, 361. 
 ^ date of commencement of action as 
 
 against, 355. 
 place of issue, to be noted in margin, 272. 
 
 renewal of, 276, 277. •*«♦;„„„ 077 
 
 not allowed so as to bar Statute of Limitfttions, 277. 
 
 evidence of, 277. 
 replevin action, service of , in, 858. 
 
 sealing of, 272. 
 
 service Of, within Ont., 288-299. 
 
 affidavit of, form of, 293, 
 dispensing with, 288. 
 indorsement of date of , 292, 293. 
 
 amendment of, 293. 
 omission of, 293. 
 
 on corporations, 297, 298. 
 
 in actions on Quebec judgments, 
 
 299. 
 defendant whose whereabouts unknown, 306. 
 
 infants, 293,294. 
 firms, 296, 297. 
 lunatics, 295. 296. 
 married women, 293. 
 
 J.A. 
 
 'I 
 
 3 
 
 k 
 
1330 
 
 INDKX. 
 
 
 WKIT or HUMUO^H—Conti lined. 
 service of. within Onl—Coiitniufd. 
 
 on Official Griiardian, 2'.W. 
 partners, '2'M). 
 
 sued in (irm name, 342. 
 solicitor, '28H. 
 
 acceptance of, '2HH. 
 personal, 2HH, 28i». 
 8ettin>{ anide, 2!(1. 
 Sheriff neglectin^^ to make, 292. 
 substituted, 28H-'2i)2, 802. 
 
 equivalent to personal service, : 
 who may effect, 28!). 
 
 without Ont., 209-B02. 
 
 affidavit of, requisites of, 300. 
 allowance of, 300, 303, 30(). 
 
 affidavit for, 300, 301. 
 jurisdiction to authorize, 29!). 
 leave for, not necessary, 300. 
 notice in lieu of writ, when to be served, 2 
 
 setting aside, 301, 302. 
 waiver of right to object to, 302. 
 setting aside, for being in wrong form, 273. 
 Sheriff, indorsement of receipt by, 292. 
 
 omission of, to serve, effect of, 293. 
 refusal of, to redeliver effect of, 292. . ■ > .. 1 . • 
 
 solicitor, address of, to be indorsed on, 278. 
 
 to state on demand whether issued by him, 286. 
 special indoi'senient, form of, 281-284. 
 
 judgment on. See Juhg.mknt. 
 substitutional service of, 273. , .- 
 
 teste of, 274. ; ..,. .... '.*,,''' 
 
 title of action, to contain, 274. • ' ' 
 
 YORK. 
 
 assizes for, when to be held, 91. 
 
 292, 
 
 73, 3(|-.>, 
 30«. 
 
 D 
 
ne,34-2. 
 288. 
 
 i9'2. 
 
 jrsonal service, '2'.)"i. 
 
 300. 
 
 , 300, 301. 
 
 29'.). ■ / 
 
 iOO. 
 
 into be served, 273, HUi, 
 
 HOC), 
 to, 302. .. 
 
 him, 286. 
 
 MKNT. ,