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RECENT legislation has rendered a discussion of the Division Court Amendment Aot, 1886. necessary by some one. Having considered the previous Statutes in reference to Division Courts, I felt it almost a duty to give my views and such authorities as I could find bearing on this Act. The Act of last session makes material changes in many respects with previous Division Court legisla- tion. The change which has been made in the man- ner of altering the number and limits of Divisions in Senior and Junior Counties ; the combination of causes of action of a different character ; the exten- sion of the jurisdiction of the subpoena to witnesses and the payment of witness fees ; the very mater- ial change in all Garnishment proceedings ; the additional facility of referring causes to arbitra- tion ; the change effected as to the possession of property seized under Attachment; the right to examine witnesses who cannot attend the trial or who reside at inconvenient distances from the place of trial ; the adding of defendants and others as parties to a suit, and the assimilation of proceed- ings in the Division Courts with those of the High Court of Justice in regard to the bringing of actions for and against partnership firms, and the rights and liabilities of the several partners in such cases, all seemed to me to be of such importance in Division Court Law as to require as full a discus- sion of them as possible. That I have tried to do. In order to the practical application and working of any Statute such as the present one, certain Forms of proceedings are necessary. These I have framed and introduced at appropriate places in the work, not as authoritative, but simply as a guide. It further appeared to me that certain other Stat- utes of the Session of 1886 could with propriety be given. Some of them do not bear a close reference n IB I %' t I: Vlll. PKKKACE. to ordinary pra(;tice in Division Courts yet are so important to be known by people generally as to warrant tlieir introduction in a work of this nature. But, what to Division Court Clerks and Bailiffs will be of so mudh interest and value is the large number of questions propounded by Division Court officers and others on the sub,je(;t of ITees properly receivable by them, and the answers given to the same. The Clerks' and Bailiffs' Association were anxious that different items of the Table oi Fees for Clerks and Bailiffs should receive consideration in answer to questions to be submitted. My opinion, for what it is worth on the different (|uestions (75 in all), upon which information waB sought, I have freely given in these pages. I may not in all cases be right, but have tried to be so. I do not believe a too strained construction of the Tariff should be given where work has been actually done by an officer, nor do I think a laxity of construction not reasonably warranted by the language employed or the cir- cumstances of the particular case should be adopted. I have tried to keep these two views in mind, and steer clear of either extreme. I trust this work will meet the same kindly reception that its predecessors have so generously obtained. A book is not complete without a good Index. In the preparation of the Index to this work the greatest care has been bestowed and thorough- ness of execution displayed. For its merit in that respect I have to thank Mr. Edwin Herbert Ambrose, of Hamilton, Student-at-law, and Lyman Lee, Esq,, both of whom have rendered me val- uable assistance. J. S. SINCLAIR. Hamilton, November, 1886. I (It w 5 f) I TABLE OF CASES Abraham v. Newton, 68 Adam v. Townend, 76 Alexander T. M'Near, 46 Allan V. Andrews, 69 Allan T. M'Tavieh. 37 Alliance Bank of Simla v. Carey, 39 Alston V. Trollope, 39 Anderson v. Anderson, 69 Arkell v. Geiger, 56 Armoor v. Garrathers, 56 " V. Walker, 26 Ashley v. Taylor, 76 Attorney-General v. Gooderham,26 " " V. Walker, 38 Aykroyd, in re, 16, 17, 19, 20 B Baddeley v. Gilmore, 62 Baggalay v. Borthwiok, 10 Baird v. Almonte, 10 Baker t. Jackson, 68, 61 BaUoor t. Ellison, 66 Ball T. barker, 36 Bank of Montreal v. Taylor, 113 Bank of Ottawa v. M'Laughlin, 46 Barber v. Bingham, 76 Barclay v. Satton, 117 Bamed'e Banking Co. (Limited) t. Beynolds, 37 Bomes v. Metoalf, 36 Barry v. Barclay, 61 Beal V. South Devon By. Co., 69 Beard v. Ketcham, 85 Beaty t. Bryce, 66 Beaufort, Duke of, t. Crawshay, 58 "v. Earl of Ash- bnmham, 63 Be^kman v. Jarvis, 117 Bellamy v. Jones, 68, 69, 60 Berdan v. Greenwood, 26, 59, 66, 67 Berryman v. Wise, 7 Bevan v. Wheat, 56 Bidder v. Bridges, 69, 63, 66, 67 Bingham v. Henry, 26 Birch, ex parte, 16 Bird V. Folger, 66 Birdsall v. The Corporation of Asphodel, in re, 3 Bissioks V. Bath Colliery Co., 127 Black r. Beynolds, 129 Blades v. Lawrence, 1U8 Boatwright v. Boatwright, 40 Boice V. O'Loane, 38 Bonsey v. Wordsworth, 17 Booth V. Gamett, 48 Booth V. Trail, 30 Bourdin v. Greenwood, 40 Bowers, ex parte, 16 Bowker v. Evans, 47 Boyle V. Humphrey, 4 Boyse, in re, Crofton v. Crofton, 26 Braddick v. Thompson, 4 Braine v. Hunt, 122 Brigham v. Smith, 34 Brown v. Brown, 60 V. Child, 68 V. Nelson, 66 V. Rutherford, 40 Brydges v. Fisher, 61 Buckley v. Cooke, 63 Building and Loaa Ass. v. Helm- rod, 76 Bull V. Bull, in re, 4 Burrowes, in re, 109 Burwell v. Tomlinson, 119 Bushell V. Moss, re, 16 Butler V. Ford, 7 Button T. Thompson, 16 Calms V. Water GommissionMs of Ottawa, 38 Cairns v. Whelap, 18 Table of gases. xl Cameron v. Cameron, 62 •' V. Campbell, 35, 37 Campbell v. Boulton, 4 Cannon v. Toronto Com Exchange 9 Carlisle v. Tait, 70 Carmarthen and Cardigan By. Co., The, V. The Manchester and Milford R*y Co,, 11 Carpenter v. Vanderlip, 35 Carroll v. Fitzgerald, 38 Caspar t. Keachie, 38 Castelli v. Oroom, 59 Castle y. Buttan, 122 Catbcart ▼. Haggart, 36 Cazenove v. Yaughan, 64 Chadwick v. Ball, 42 Chapman v. Biggs, 43 Chasemore v. Tomer, 39 Chatterton v. Watney, 43 Christie v. Conway, 55 Clarke v. MaoDonald, 42, 46 Clatterbnok v. Jones, 59 Cole V. Sherard, 113 Colville, ex parte, 10 Commercial Bank t. Wilson, 66 Consohdated Bank t. Bickford, 127 Cook V. Grant, 85 Corporation of Haldimand v. Mar- tin, 118, 120, 125 Corporation of Peterborough t. Edwards, 38 Cotton V. Mitchell, 38 Cowing T. Vincent, 36 Craig T. Craig, 122 Crandall v. Crandall, 37 Crippen v. Ogilvey, 59 Cropper v. Warner, 122 Croiokshank y. Corbey, 47 Cuerton, ex parte, 46 Curling v. ^^.tobertson, 63 D Dalling y. Matohett, 3, 9 Dallow y. Oarrold, 43 Daniel, ex parte, 15 Darling y. Darling, 27 Dayis y. Lowdnes, 58 " y. Pembrokeshire, 10 Dawd;, in re, 47. Demorest y, O. J. By. Co., 47 Denton y. Strong, 46. Deyanney y. Dorr, 46 Dew y. Clarke, 59 Dickson y. .Jarvis, 34 y. M'Mahon, 56 Dixon V. Grant. 37 Dodd V. Wi»?ley, 17 Dodds V. Shepherd, 110 Doe y. Darby, 64 Doe d. Dayy y. Haddon, 7 Doe. M'Gregor v. Hawke, 37 Doe. Tiffany y. MUler, 113 Dominion Ao. Co. y. Stin8on,27,63 Dougall y. Cline, 36, 37 Drinkwater y. Clarridge, in re, 21 Duke of Beaufort y. Crawshay, 58 V. Earl of Ash- burnham, 63 E Earle y. Stocker, 10 Early y. M'Gill, 69 East India Company y. Naish, 69 Edgar y. M'Gee, 38 Edson y. Sprout, 43 Ellison y. Ackroyd, 48 Ellison y. Tuttle, 44 Elmnley y. Oosgraye, 61 Ernes y. Emes, 87 P Fairman y. Oakford, 16 Fearnside y. Flint, 38 Fellowes y. Thornton, 42 Ferguson y. Norman, 47 Finney y. Beesley, 59 Firebangh y. Stone, 44 Fischer y. Hahn, 69 Fisher V. Berrell. 61 " y. Eeane, 9 Fisken y. Chamberlain, 69 Fitzhugh y. Lee, 68 Foley y. Moran, re, 110 Ford y. Allen, 37. " y. Spafford, 36 Fowler y Vail, 37 Fox y. Toronto & Nippissing By. Co., 25 Eraser y. Ehrensperger, 47 Freeman y. O. & Q. Ry. Co., 47 Frere y. Green, 69 ui 5 R I Xll. TABLK OF GABESS. it) G Qalbraith v. Fortune, 128 Qalloway v. Keyworth, 61 Qarden v. Bruoe. 39 Oemmell v. Colton, 36 Gibbs V. GuUd, 40 Gibson v. King, 16 Girdlestone v. Biighton Aquarium Co., 56 Goff, re, 37 Goslin T. Tune, 122 Goodman v. Sayers, 3, 9 Gordon v. Jennings, 30 V. 0' Brien, re, 16, 17 Gore Bank, The, v. Crooks, 49 Grant T. M'Donald, 36, 36 Grant t. Grant, 123 Grantham v. Powell, 36 Great N. By. Co. v. Mossop, 110 Green t. Humphreys, 40 Green t. Wood, 63 Gregory v. Cotterell, 121 Grill T. General Iron Screw Co., 69 " V. Iron Screw Collier Co., (Limited), 64 Grimbley v. Aykroyd, 17 Grisdale v. Boul^on, 4 Grove v. Young, 68 Gnnn t. Adams, 37 Gnnter v. M'Tear, 61 H Haldane v. Eokford, 62 Hall y. Pritohett, 30 Hall, ex parte, 56 Ham T. Lasher, 128 Hamilton v. Mathews, 35 Hamilton & Port Dover By. Co. V. The Gore Bank, 127 Harding and Wren, re, 46 Harrington v, Edison, 3, 10 Harris v. Qnine, 39 Harvey v. Shelton, 4 Haskins v. St. Louis and S.E.B B. Co., 3, 10 Hawley v. North Staffordshire By. Co., 8 Hewitt v. Jarvis. 124 Hickman v. Lawson, 4 Holt V. Jarvis, 7 Hope V. Hope, 69 Homer v. Kerr, 70 House V. House, 86 Howell V. Met. D. By. Co., 43 Hubbard v. The Union F. Ins. Co. re, 46 Irwin V. Freeman, 37 Ives V. Ives, 87 Jackson v. Litchfield, 76 Jameson v. Jones, 64 Jepsom v. Greep.:iway, 68 Johnson v. Gibson, 16 JoUiffe, ex parte, 61 Jones T. Atherton, 117 Jones V. Brown, 36 " V. Tobin, 61 Joy V. Hadley, 62 K Eimpton v. WiUey, 17 King T. Simmonds, 16 " The, V. The Sheriff of Here- fordshire, 18 King's College v. M'Dongall, 36 Eirkpatrick, re, Kirkpatriok v. Stevenson, 86 Klein V. Klein, 66 Knight V. Medora, re, 16, 42 Kraemer v. Gless, 70 Kynston v. Liddell, 46 Labouohere v. Whamoliffe, 9 Lampman v. Davis, 36 Langen v. Tate, 26, 69, 66 Lawson v. Vacuum Brake Co., 27 " & Hutchinson, re, 4 Lee V. Wilmot, 38 Leech v. Williamson, 66 Lester v. Garland, 63 Lizars v. Dawson, 86, 39 Lloyd v. Heuddrson, 61 r-Xi TABLE OP CASES. Xlll. Lloyd V, Key, 62 Lord y. Lee, 46 Loring v. Loring, 37 Lovell V. Oibson, 66 Low V. Morrison, 87 Lowe V. Fox, 38 Lowis V. Runney, 39 Lowson V. Canada F. M. Ins., Co., 113 Lyon V. Tiffany, 36 M Maodonald t. The Taoquah Oold Mines Go. , 43 Maofie T. Banter, 66 Maclean ▼. Anthony, 122 Maonamara v. M'Lay, 120 Maopherson t. Tisdale, 16 Maddoks v. Holmes, 34 Mair t. Anderson, 26 Manby v. Manby, 39 Margate Pier Company, The v. Hannam, 6 Marshall t. Lamb, 7 Martin v. Bannister, 61, 62 " T. M'Alpine, 66 Masoret v. Lansdell, 65 May T. Haroonrt, 46 Merchants Bank, v. Campbell, 124 " " V. Herson, 56 '• " V. Pierson, 62 Meriden Silver Co. v. Lee, £6 Meyerhoff t. Froehlich, 86, 40 Michie v. Baynolds, 124, 125, 126, 129 Miles V. Harris, 126 Miller t. Miller, 40 Mitchell V. Foster, 71 Moffat V. Prentice, 69 Mondel v. Steele, 69 Morgan v. Mather, 10 " V. Rowlands, 40 Morphett, inre, 8, 10 Morris v. Boulton, 127 Morrison v Taylor, 123 Murray v. Gibson, 11 Muskoka and Gravenhurst, re, 46 Myers v. Baltzell, 43 Myles T. Thompson, 49 Mc M'Combie v. Anton, ?*. M'Cormiok t. Berzey, 36 M'Dermott v. Donegan, 44 M'Donald v. Boioe, 66 '• V. Elliott. 37 M'Edward v. Gordon, 4 M'Fadden v. Stewart, 37 M'Gee v. Baird, 56 M'Hardy v. Hitchcock, 61 M'lntosh V, Great Western R'y Co. , 58 M'Kay v. Grinley, 36 M'Ei>ana v. Everitt, 68, 69 M'Eenzie v. Harris, 66 M'Lean t. Evans, 128 M'Master v. Meakin, 117 M'Millan v. M'MiUan, 63 M'MuUen & Cayley, in re, 4 M'Nulty V. Jobson, 4 M'Roberts v. HamUton, 123, 124, 125, 126 Newcombe v. Anderson, 16 Nordhoimer v. M'Eillop, 27 Norton v. Lord Melboome, 61 Norval v. Canada S. By. Co., 46 Notman v. Crooks, 36 Noyes v. Crawley, 37, 40 o Cakes v. Halifax, 46 Ohlsen v. Terrero, 63 Oliver v. Dickey, 69 Olmstead v. Errington, re, 16 Omnium Securities Co, v. Rich- ardson, 39 Ontario and Quebec, in re, 3, 10 Osborne v. Earnshaw, 16 Pardee v. Lloyd, 4 Pardo V. Bingham, 87 Parker v. Howell, 66 " V. Remington, 86 Patterson v. M'Kellar, 122 Pering v. Keymer, in re, 8 Perlet v. Perlet, 4, 9 Peterson v. Bowes, 62 •i: ii: 5 iiv. TABLE OF GASES. Phipps T. Beamer, 55 Firie v. Iron, 61 Pole T. Leask, 49 PoUexfen v. Bibson, 75 Pond V. Dimes, 58 Potter V. Knapp, in rf, 9 Powers, in re, Lindsell v. Phillips, 38 Priee t. Bailey, 66 " V. Thomas, 113 Priohard v. Gee, 69 Prince v. Samo, 63 Q Qainoey v. Sbarpe, 88 R Bandall v. Lithgow, 43 Battan t. Aehford, 115 Bedford v. M'Donald, 64 Bees V. M'Keown, 15 B. V. Aberdare Canal Co., 71 B. V. Andrews 16 B. y. Bishop of St. Albans, 10 B. T. Chapman, 10 B. V. Court of Bevision of Corn- wall, 3 B. T. Cumberland (Justices), 62 B. V. Fee, 7 B. V. Gibbon, 10 K. T. Great Tarmouth, 10 B. V. Handsley, 10 B. T. Howard, 7 B. V. Inhabitants of Huddersfield, 58 Justices of Huntingdon, 10 Justices of Middlesex, 71 Justices of Shropshire, The B. B. B. B B. B. B. B. B. B. T, V. V. 71 V. V. Lee, 10 Lefroy, 61, 62 V. Milledge, 10 V. Pawlett, 9 V. Sheriff of Herefordshire, 18 V. Verelst, 7 T. Wellings, 58 Bice V. Howard, 63 Bidley t. Sutton, 63 Biver Steamer Company, in re, Mitchell's Claim, 39 Boberts t. Death, 43 Bobinson v. Davies, 27, 62, 64 Bogers t. Manning, 27 Boss, re, 35 " V. Corp. of Bruce, 4 " V. Bobertson, 62 " y. M'Lay,114 Bucker v. Hannay, 34 Buggies v. Beikie, 37 Bushbrook and Starr, in re, 46 Bussell V. G. W. By. Co., fii6 Byan v. Devereux, 63, 64 s Saunders v. Bridges, Soatcherd v. Eiely, 37 School Trustees of the Township of Hamilton v. Neil, 7 Scott T. North, 15 Shanly v. Grand Juno. By. Co., 38 Shanley v. Moore, 30 Sharpe v. Fortune, 117 Sifton T. M'Cabe, 36 Singer v. Williams Manufacturing Co., 27 Skeet y. Lindsay, 39 Sloan y. Whalen, 66 Smith y. Babcook, 27 " y. Bum, 35 " y. Greey, 27, 59 " y. Bedford, 7, 37 " y. Scott. 15 Spackman y Foster, 40 Spalding y. Parker, 35 Sparkes y. Barrett, 62 Speeding y. Young, 61 Steers y. Lashley, 47 Steinkeller y. Newton, 64 Steuart y. Gladstone, 61 Stevenson y. Hodder, 35 Stewart y. Garrett, 35 St. John y. Bykert, 37 Strange y. Toronto Telegraph Co.. 55 Strong's Executor y Bass, 43 Sullivan v. Corporation of Barrie, 38 Summerfeldt y. Worts, in re, 15 Summers y. Bawson, 61 Surr y. Walmsley, 62 Sutton y. Sutton, 38 Swift y. Cohourg A Peterborough By. Co., 117 TABLE OF CASES. XV. Taylor v. Cook, 76 " y. Laird, 16 V. Pamell, 38 Temple T.Toronto Stock Exchange, 9 Templeman and Beed, in re,3,9,10 Thomas v. G. W. By. Co., 128 Thomas v. Harrop, 3 " V. Sylvester, 16 Thurlow V. Sidney, 46 Tiffany v. Thompson, 37 Tildesley v. Harper, 76 Tittenson v. Peat, 10 Trotter v. Corporation of Toronto, 38 Trust & Loan Co. v. Clarke, 37 Tucker T. Collinson, 42 Vandewaters t. Horton, 15 Vardon v. Vardon, 39 Vashon v. E. Hawkeshury, re, 10 Victoria Mutual Ins., Co., v. Da- vidson, 11 Vyse v. Brown, 43 w Wade v. Dowling, 10 Wadsworth v. Bell, 127 Waldie v. Burlington, r«, 110 Walker v. Fairfield, 125 «' V. Booke, 48, 76 " and Brown, in re, 47 Warner v. Mosses, 58, 61 Watefield v. West Biding & G. By. Co., 10 Waters v. Daly, 4 Watkins v. Washburn, 36 Watson v. Lindsay, 38 «' V. M'Donald, 27 Webb V. Stenton, 43 Webster v. HaKgart, 47 Western of Canada Oil, Lands, and Works Co., in re, 63 Wheeler v. Murphy, 121 Whiley v. Whiley, 80 White V. Lord, 66 " V. Sharp, 8, 10 Whitehead v. Fothergill, 115 Whitely v. MaoMahon, 4, 46 Wilby V. Elgee, 40 Wildes V. Bussell, 10 Wilks, ex parte, 16 Wilkinson v. Page, 48 «' V. Verity, 40 Wiliet V. Atterton, 34 Williams v. Boblin, 4 Willoughby v. Willoughby, 8 Willson v. York, 46 Wilson V. Brett, 69 " V. DeCoulon, 26 " V. Wilson, 56 Wolton V. Gavin, 7 Wood v. Perry, 17 Worts v. Worts, 10 Wright V. Merriam, 36 " V. Wilkin, 62 Young v. Bulman, 3 Youngs, in re, Doggett v. Bevett, 66 THE DIVISION COURTS AMENDMENT ACT, 1886. W 40 Victoria, Chapte 15, (Ontario.) An Act to Amend "The Division Courts Act." at [Assented to 25th March, 1886.] HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows :— I. Section 11 of The Division Courts Act is?- s. 0.0. hereby repealed, and the following substituted "p"»'«^- therefor : 11.— (1) The County Judge, the Sheriff, theWarden ^^l^^^ of the County, and the Division Court Inspector ^divteirai may, subject to the restrictions in this Act con- tained, appoint, and from time to time alter the number, limits and extent of every division, and shall number the divisions, beginning at number one, but no resolution or order made under the provisions of this section shall be altered or re- scinded, unless public notice of the intention so to alter or rescind or that application will be made to alter or rescind, is made and proclaimed in open Court at the next previous sittings of the General Sessions of the Peace, IB 5 n 2 DIVISION COURTS AMENDMENT ACT, 1886. [Sec. 1. (2) The Judge shall cause the Sheriff, Warden and Inspector to be notified of any application, and of the time and place at which the same will be considered. Formerly any alteration of the number, limits and extent of any Division Court ooald only be made by the Justices of the Peace for each County in General Sessions assembled : Sinclair's D. C. Act, 9. Such alteration could only be made after public notice of the intention 80 to do h: d been publicly given at the next previous sittings of such General Sessions of the Peace : Sinclair's D. C. Act, 9-10. The anxiety displayed by interested parties either to reduce or increase the area of Division OoUits, or to establish new divisions, has not un- frequently of late years been the cause of unseemly controversy and conten- tion, and the Courts of General Sessions have in some instances been scenes of lieuted discussion and angry debate. Justices of the Peace who had never done a Magisterial act before nor ever previously attended a sittings of General Sessions in a pubUc capacity would be found among the active partizans of contending parties. They came for a certain purpose and their zeal for friends seldom caused them to falter in attempting its accomplish- ment. The limits of divisions in many cases were not settled on questions of right, but by force of numbers. Interested parties obtained by active canvass that which could not otherwise have been obtained. The act of the majority was seldom the result of quiet, sober judicial discussion. Such a state of affairs could not continue. The effect would undoubtedly be pernicious, and the Legislature has wisely committed to another and new tribunal the determination of such matters. It will be observed that the power which Justices in Sessions previously possessed to appoint and from time to time to alter the numbers, limits and extent of every division is now committed by this section to the County Judge, the Sheriff, the Warden of the County and the Division Court Inspector. This section is somewhat obscure in its phraseology and its construction is consequently doubtful. At first sight it may seem that the tribunal here created might make one change without the necessity of making proclam- ation of the intention at the next previous sittings of the General Sessions of the Peace. It will be observed that the provision as to notice more particulau'ly refers to a " resolution or order made under the provisions of this section," Sec. 1.] DIVISION COURTS AMENDMENT ACT, 1886. Whatever donbt there may be in respect to the necessity for " pnbUo notice of the intention to alter or rescind " being given, questions should be saved in all cases where the limits and extent of divisions are already established, by adoptirg the safer course and requiring it to be done. It is a matter of public interest, and the plainest principles of justice demand that the utmost publicity should be given of the intention to change. Whatever a literal interpretation of the section in question may be there can be no doubt that the spirit of law will be best observed by the tribunal here constituted in all cases requiring evidence of the public notice having been given by proclamation before acting under this section. When all preliminary requirements have been duly observed, it will be the duty of the Judge to give, or cause to be given, due and timely notice to the other members of the tribunal of the time and place at which any ap- pUcation will be considered. Parties making the appUcation and those opposing it should be duly notified of the time and place of hearing. Sinclair's D. C. Act, 81, D. G. Law, 188o, page 221, and cases there cited. It is submitted too that in all cases there should also be public notice, so that all other parties interested in or affected, or that might be affected by the proposed change, should have an opportunity of being heard before any decision is arrived at. Where the Statute requires notice to be given of the proposed change mentioned in this section, any decision in respect to the same would, it is submitted, be invalid in the absence of such notice: In re Birdtall v. The Corporation of Asphodel, 46 U. C. E. 149 ; R. v. Court of Revition of Cornwall, 26 U. G. B. 286 : Sinclair's D. C. Act, 14-15. The Statute does not so declare, but it is submitted that the decision of the majority of the members of the tribunal would be good and that the whole number need not be unanimous in their decision : B. 8. 0. Chapter 1, Section 8, Sub-section 33, In re Ontario and Quebec, 6 L. J. N. 8. 212 ; but in order to justify a decision by less than the whole number who heard the question, there should first be an opportunity for a full discussion and a final refusal to agree : Ooodman v. Sayers, 2 J. & W. 242 ; Balling v. Matchett, Willes, 216 ; In re Morphett, 2 D. & L. 967 ; Young v. Bulman, 13 C. B. 623 ; White v. Sharp, 12 M. & W. 712 ; Thomas v. Harrop, 1 S. & S. 624 ; In re Pering v. Keymer, 3 A. & E. 246 ; In re Templeman and Reed, 9 Dowl. 962 ; Hawley v. North Staffordshire Ry. Co., 2 De Gex & S. 33 ; Willoughby v. Willoughby, 9 Q. B. 928. Neither one could delegate his authority : Harrington v. Edison, 11 ' U. C. B. 114 ; naskins v. St. Louis and S. E. R. R. Co., 109 U. 8., 106 ; Sup. Gt. U( (4 3 n 4 DIVISION COURTS AMENDMENT ACT, 1886. [Sec. 1. Evidence should not be taken in the absence of interested contesting parties : Campbell t. Boulton, 1 U. 0. B. 407 ; Hickman t. Lawaon, 8 Orant 386 ; Williams t. Rohlin, 2 P. B. 234 ; MeNulty v. Johion, 2 P. B. 119 ; even though it might not influence the decision : Waters \ Daly, 2 P. B. 202 ; MeEdward v. Gordon, 12 Grant 333 ; Whitely v. MacMahon, 82 0. P. 453 ; and an opportunity should be given to adduce all proper testimony : Orisdale v. Boulton, 1 U. C. B. 407 ; In re McMullen .r of the regular appointment or election of an officer from his having aa'si in an official capacity and would Se(5. 8.] DIVISION COURTS AMENDMENT ACT, 1880. 7 do 80 in this oaae : B. t. Verelit, 8 Camp. 432 ; Berryman v. Win, 4 T. B. 866 ; Doe. d. Davy v. Haddon, 8 Dong. 310 ; Marihall y. Lamb, 6 Q. B. 116; Wolton V. Oavin, 16 Q. B. 48 ; Butler y. Ford, 1 Or. & M. 662 ; R. v. Howard, IM. & Rob. 187, and other oases cited at pages 167-169 of tlie 4th Edition of Taylor on Evidence, section 139 : Holt v. Jarvi*, Draper 190 ; Smith v. Bedford, 12 Grant 316 ; School Tnuteet of the Townthip of HamiltcH v. Neil, 28 Grant 408 ; R. v. Fee, 2 Cnt. B. 107. Ul ft 5 1 IM 8 DIVISION COURTS AMENDMENT ACT, 1886. [SeC. 4 R. s. o. c. 4. Section 17, and sub-sections 2 and 3 of said Act 47 8 17 repealed, aie hereby repealed, ani the following substituted I. I! ,ij therefor : Keguiation H- The Judgc of the County, the Sheriff, the S^fctio^n Warden of the County, and the Inspector of o acounty. j)jyjgjQjj (^ourts, at a meeting to be called for the purpose, or at any adjourned meeting, shall, within three months after the issue of any proclamation for separating a Junior from a Senior County, ap- point the number, (not less than three, nor more than twelve) the limits and extent of the several Divisions within such County, and the time when such change of Divisions shall take place, and no resolution or order made under the provisions of thi*; section shall be altered or rescinded, unless public notice of the intention so to alter or rescind is made and proclaimed in open Court at the next previous sittings of the General Sessions of the Peace. The repealed section and sub-seotions will be found at pages 13 and 14 of Sinclair's D. G. Act. This section has iu view the same object as the previous sections have, namely : The vesting in the officers therein named of the authority wnich formerly belonged to the Justices at General Sessions. In other respects the section is substantially the same as the repealed clause, except that under the present section a limit of three months after the proclamation instead of at the first sittings of the Oeneral Sessions thereafter is fixed for the performance of the duty which the section prescribes. After the number, limits and extent of the several Division Courts have been appointed in the County (that is what during the union Sec. 4.] DIVISION COURTS AMENDMENT ACT, 1886. of the Counties was called the " Senior County,") and the time when such change of Division shall take ; place, there cannot be any order or resolution changing the same, unless pubUc notice of the intention to do so is nina from a Division Court to run not only in the County in which it is issued but over the Province of Ontario. It will be observed that a subpa>na need not necessarily be issued from the office in which the suit is entered, but it may be obtained from the Clerk of any Division Court in the County, that is the County in which the action is brought. Sw;. 10.1 DIVISION C0URT3 AMENDMENT ACT, 188(). 25 10. Section 98 of the s»aid Act iw hereby repealed, «• s- <>• c and the following is substituted therefor : ropekied. 98. Any person served with any such subpcBiia, Expenses^ who is resident in Ontario, but out of the county ^/county"* in which such Division Court is situate, shall be entitled to be paid witness fees and mileage ac- (lording to the County Court tariff. Instead of section 98 of the Division Courts Act, to be fonnd at pages 127 and 128 of Sinclair's D. C. A^ct, the above section is substituted. A person served with a subpcena from a Division Court and who resides in the Province of Ontario but not in the County in whi 'i the action is brought, will now be entitled to be paid his witness fees and mileage according to the scale of sucb fees in the County Court. It will be seen that there will hereafter be no such proceeding as issuing a subpoona from the High Court of Justice. A subpoena from a Division Court will have the same eifect as a subpoona from the High Court has hitherto possessed. It is not necessary for the purpose of the successful party's taxing witness fees and mileage against the opposite party that a subpoena should have issued and been served on a witness. Any witness, resident within the Province, who may at the request of a party to a suit voluntarily attend the trial as a witness without being subpooned, will be entitled to his proper fees as such witness on the Division Court scale only. Service of a subpwna is only necessary to compel the attendance of a witness but does not affect his right to witness fees, nor cf the party who called him, if successful, and costs allowed, to tax them against his opponent : Fox v. Toronto <£ Nipisting Ry Co , 7 P. R. 157. The same rule applies to a party to the cause : lb. As remarked in Archbold's Practice, 12th Edition, page 349 : — " If you are not certain that your witnesses will attend at the trial voluntarily and give evidence, you must subpoena them. " A witness who, without being subpoened, came from some place outside the County in which the action was brought, would not be entitled to witness fees and mileage on the Xjuuu'y Court seUle, unless subpaned under the provisions of this section. Provision is made under the 19th section of this Act for the examination " of a witness who resides in a remote part of the Province and at a great distance from the place of trial." That, however, is •It It: 5 e a. < m IHHHl 26 DIVISION COURTS AMENDMENT ACT, 1886. [Set;. 10. only permssive and does not affect the right of the euocessful party to tax witness fees against his opponent, whether the attendance of the witness was voluntary or compulsory. Should a witness be brought from beyond the limits of Ontario, his witness fees could be taxed to the successful party, provided they did not exceed the costs of issuing a commission and taking his evidence thereunder according to the provisions of section 99 of the Division Courts Act. — Sinclair's D. 0. Act, page 128 and following pages ; Armour v. Walker, 25 Ch. D. 673. Upon an application for a commission to take the evidence of a witness who is abroad, the Judge ought to be satisfied that the application is made bona fide, and that the claim in support of which the evidence is desired is one which the Court ought to try, but it ought not to go any further into the merits of the claim : In re Boyse, Crofton v. Crofton, 20 Ch. D. 760. In a case in which a claim was made under very suspicious circumstan- ces and the Court was of opinion that a person, resident abroad, whose evi> dence was desired in support of it, ought to be subjected to a drastic cross- examination ; it was held that a commission ought not to be issued to a foreign Court for the examination of the witness abroad, because it ap- peared that under the procedure of that Court he would not be crosH- examined in the ordinary way. — lb. A commission shonld not be issued to an interested witness if it appear that he if tr.iiking application for the commission to avoid cross-examination at the trial : Benlan v. Greenwood, 20 Ch. D. 764, explained in Langen v. Tate, 24 Ch. D. 522. The last case also decides that where it appears from the material before the Court on apphoation for the commission that the proposed evidence is not material, it will be refused. Where a single commissioner is appointed to take evidence abroad the commission should authorize him to administer the oath to himself : Wihon v. DeCoulon, 22 Ch. D. 841. In Division Court suits the commission issues from the County Court, Sinclair's D. C. Act 128, and can only issue on the conditions prescribed by the 100th section of the Division Courts Act : Sinclair's D. C. Act, 132. If a case is made out that it is necessary for the purposes of justice that witnesses resident abroad should be examined in our Courts, a com- mission will not be granted : Amour v. Walker, 25 Ch. D. 673. As a general rule a commission will not be issued to take the evidence of experts ; Rmsell v. Q. W. Ry. Co., 3 U. C. L.J. 116; Binyham v. Henry, 19 L. J. N. S. 223 ; See, also, Mair v. Anderson, 11 U. 0. R. 160; Attorney General v. Gooderham, 20 L. J. N. S. 176, 10 P. R. 269 S. C. Where secondary evidence is received by the commissioner without objection it cannot be excepted to at the trial. The proper course in such cases is to except to the reception of any improper evidence, and if received ii Sec. 10.] DIVISION COUETS AMENDMENT ACT, 1880. 27 to have the objection to its reception noted in the notes of the witness' testimony. Then advantage can be taken of it, not otherwise : Robinson V. Davies, 5 Q. B. D. 26. Where it is sought to have a material witness examined abroad, and the nature of the case is such that it is important that he should be examined here, the party asking to have him examined abroad must shew clearly that he cannot bring the witness to this country to be examined at the trial : Lavison v. Vaeuuvi Brake Co., 27 Ch. D. 137. A commission will 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 purpose. Nordheimer v. McKillop, 10 P. R. 246. A commission should not be issued in a Division Court case to take evidence out of the jurisdiction until after the defendant has put in his defence, nor then unless the applicant shews by affidavit what evidence he expects to get from the witness: Smithy. Greey, 10 P. B. 531. If evidence is taken under commission and not used by either party, the costs of taking it will be disallowed : Dominion ^c. Co. v. Stinson, 9 P. K. 176. Where an order was made for a commissioner to examine one M. viva voce, and other witnesses on interrogatories, it was held that the com- mission could not issue to examine M. only without amending the order : Smith V. Babcoek. 9 P. R. 176. If a party attend on a commission after the time for its return has expired he waives any right to object to the delay : Darling v. Darling, 9 P. R. 560. A second commission may issue to examine a witness where he admits he did not fully disclose the facts on the first commission : Rogers v. Manning, 8 P. R. 2. In some cases involving intricate questions of fact, the evidence will be ordered to be taken viva voce : Watson v. McDonald, 8 P. R. 354. On an application for a foreign commission to examine a witness who is travelling it should be shewn that he will remain at the place to which the commission is directed a sufficient time to allow of its due execution: Singer v. Williams Manufacturing Co., 8 P. 11. 483. As to the general rules on which a commission will be ordered and he Forms applicable thereto, the reader is referred to Sinclair's D. C. Act, 128-133 ; Ghitty's Forms, 11th Edition, 284-300 ; Archbold's Practice. Rob. & Joseph's Digest, 1317-1326 ; Ontario Digest, (1884) 244. The following is the Tari£F of Fees to Witnesses in the County Court, and to which witnesses beyond the limits of the County in which a Division Court action is brought, but within the Province, are entitled if sub/imned under this section : — 5 tS a' m a ! i 28 DIVISION COURTS AMENDMENT ACT, 1886. [SeC. 10. Allowance to Witnesses in County Courts. •"See 34 U. C. R., pp. 289, 290.] To Wiineii • Ur ^ within three miles of the Court House, per diem »1 00 To Witno9'm, 82 DIVISION COUllTS AMENDMENT ACT, 1886. [8('(t. 11 •: \ 'i The above meraorandnm muBt in all cases, whether judgment liaH been recovered or not, rohfre the debt aovi/hl to he f/arnished in/or wages or salary, hut not in other ca»e,i, be printed or annexed to the Hummons served on the garnishee or garnishees It had better be printed on the summons. If the memorandum does not state that the debt was incurred for board or lodging the garnishee may presume that it was not so incurred. If not so incurred there would be no exemption : Sinclair's D. C. liaw, 1H81, page I. The object is to give such information to the garnishee as will enable him to say whether or not the primary debtor is entitled to the ?25 exemption mentioned in section 125 of the Division Courts Act : Sinclair's D. C. Act, 162. Under the 14oth section of the Division Courts Act, (Sinclair's D. C. Act, 1C4) the Judge in garnishment proceedings may " prescribe and devise forms for any proceeding." Sec. 12.1 DIVISION COUltTB AMENDMENT ACT, 188(i. .'J3 12. Siib-Ht!(;ti()n 2 of neotion 18(5 of the naid Act iw";, b.3(i, hereby i'ei)eale(l, and the following substituted ?epe'ajed. therefor : (2) Any primary debtor or garnishee who desires J«/«°°,«y'» to set up any statutory or other defence or any set-f,J^'*^" off or to admit his liability in wluJe or in part for the amount claimed in any su(;h action shall file with the Clerk the particulars of such defeiKie or set-off, or an admission of the amount due or owing by the primary debtor or the garnishee, as the case may be, within eight days after service on him of the summons, and the Clerk shall forthwith send by mail to each of the said parties to the action a copy of such defence, set-off or admission, and the primary creditor may file with the Clerk a notice that he admits the defence or set-off or accepts the admission of liability as correct ; a copy of sur'i notice shall be sent by the Clerk by mail, forthwith to such garnishee, and in the absence of any notice of defence or set-off, from any primary debtor or garnishee, the Judge may, in his discretii^n, give judgment against such primary debtor or garnishee ; and in the event of the primary creditor failing to file a notice admitting or rejecting such defence, set-off or admission of liability, the garnishee shall not be bound to attend at the trial, and the sum admitted to be due or owing by the garnishee, shall be taken to be the correct amount of his liability, unless the Judge shall otherwise order, in which latter case the garnishee shall be notified by the Clerk and shall have an opportunity of attending E 3 84 DIVISION COURT 3 AMENDMENT ACT, 1886. [Seo. 12. ,;; i tM'i at a subHefjiient date and beiiiR heard before jiidg- niKiit iH ^iveii a^-aiiiHt liim. costB. (8) The (lOi^tH of all iioticeH required to be jj^iveii under thin nertion, nhall be (^ostH in the eaiine, and in no (;ase nhail be iniyableby tliegarnisluse, unleHH »I)eeially ordered by the Jud^e. Tlie Bub-sectioii of seotiou l.'iO of the Division Conrts Act that is hereby repealed will be found nt pages 158 iiud 15!) of Hiuclair's D. C. Act. It was in the following language:—" Notice of any Statutory defence hIiuII be given to the primary creditor at the time and in the manner required in respect to such notices in ordinary cases." The first sub-section of Mection 136 is in these words : — " In all oases under this Act, and whether the claim of the primary creditor is or is not a judgment, the primary debtor, the garnishee, and all other parties in any way interented, in or to be alTected by, the proceeding, shall be entitled to set up any defence, as between the primary creditor and the primary debtor, which the latter would be entitled to set up in an ordinary suit, and also any such defence as between the garnishee and the primary debtor, and may also show any other just cause why the debt sought to be garnished should not be paid over or applied in or towards the satisfaction of the claim of the primary creditor." The latter, with the present 12th section of this Act, will now con- stitute the 13Gth section of the Division Courts Act. ' It will be observed that the section of this Amendment Act now under consideration is much more comprehensive than the repealed sub-seotion. No notice of any kind was necessary to be given under the former law, except that where a Statutory defence was necessary it had to be given to the primary creditor. Now, both primary debtor and garnishee must set up " any Statutory or other defence or any set.oS." But it must be observed that this provision applies to garnishment proceedings only. A discus- sion of the subject of Statutory defence will be found at pages 15S and 159 of Sinclair's D. G. Act. The most familiar Statutory defence is the Statute of Limitations. It was at one time considered that a judgment by default should not be set aside to allow a defendant to plead that Statute : WilUt V. AtUrton, 1 W. Black. 35. It is said at page 988 of Archbold's Practice, 12th Edition, that " a plea of the Statute of Limitations is now considered a plea to the merits," In support of this view see Rucker v. Eannay, 3 T. B. 124 ; Maddokt v. Holmes, 1 B. (& P. 228. But see Brigham T. Smith, 3 Chan. Chambers R. 313. In an action for fraudulent misrepresentation the Statute of Limita- tions begins to run from the time of the misrepresentation, not from its disoovery : Dickson v. Jarvis, 5 0. S. 694. Sw. 12.] DIVISION COITRTB \ w'KDMENT ACT, 1880. 35 A Solicitor's bill of oostB for servioeb rendered in obtaining judg- mnnt for his client will be barred after six years from the entry of judgment : Lizart v. Dawton, 32 U. C. 11. 237. Where a cause of action accrues in the lifetime of the debtor, the statute begins to run against his estate, notwithstanding there is no execu- tor or administrator : but where the cause of action does not accrue until after his death, then the time does not begin to run until there is a personal representative who can sue and be sued : Qrant v. Mc Donald, 8 Grant 468. On a purchase of land, the vendee gave his note, j iiyable in a year with interest, for part of the purchase money. The vendor died before the note came due, and administration was not taken out for eleven years. In a suit commenced a year afterwards by the administrators, it was held that as the cause of action did not arise until there was some person to sue, interest was recoverable for the whole period fi'om the date of the note : Stevenson v. Hodder, 15 Grant 570. In was held in Wrioht v. Merriam, G 0. S. 167, under the then system of pleading, that in an action by an administrator, a replication of a promise to the intestate in answer to a plea of the Statute, was not supported by proof of a promise to the administrator : See Stewart v. Oarrett, 81 Alb. L. J. 279 ; Parker v. Remington, 31 Alb. L. J. 283. To take a case out of the Statute by a subsequent promise to pay, slight evidence is sufiicient, but the recognition of liability must be unequivocal, or the promise must be unconditional, or the condition performed : Car- penter V. Vanderltp, E. T. 3 Vict. ; Spalding v. Parker, 3 U. C. R. 66 ; Grantham v. Powell, 6 U. C. R. 494 ; Meyerhoff v. Froehlieh, 3 C. P. D, 333, 4 C. P. D. 63 ; Coxoing v. Vincent, 29 U. C. R. 427 ; Smith v. Bum, 30 C. P. 630 ; Cameron v. Campbell, 7 App. R. 361 ; Cook v. Orant, 32 C. P. 611 ; Re Ross, 29 Grant, 385 ; Re Kirkpatriek, Kirkpatrick v. Stevenson, 8 Ont. R. 361. An admission by an executor that a note barred by the Statute is due, coupled with a statement that it could not be paid fpr want of assets, and that if there were assets it should be paid, is a conditional promise merely, and not sufficient : Lampman v. Davit, 1 U. 0. R. 179. See also MeCor- mick V. Berzey, 1 U. G. R. 388. Such a promise must now be in writing : R. S. 0., Chapter 117. An account stated by an executor of a debt due by his testator, which had never before such accounting been ascertained or determined, was held suiBcient to charge the executor as for a substantive debt, without any express promise to pay : Watkins v. Washburn, 2 U. C. R. 291. A promise to pay to an administrator before letters of administration granted, would seem to be insufficient : Beard v. Ketchum, 5 U. C. R. 114. Formerly the latter items of a running account drew the others with them, so as to defeat the operation of the Statute : Hamilton v. Mathews, .51 3 X s I I I ""•I. 1 1 '■«■■• ! " 'J" II ; :'*■"' tifi 36 DIVISION COURTS AMENDMENT ACT, 1886. [SeC. 12. 6 U. C. R. 148 ; King's College v. McDougall, 5 U. C. R. 316, but not now ; B. S. 0., chapter CI, section 2. A promise to pay by one of several joint and several makers of a note would formerly take the case out of the Statute : Sifton v. McCahe, C U. C. R. 394, but not now : R. S. O., chapter 117, section 2. The promise to pay must not be uncertain : Dougall v. Gline, Ct U. C. R. 646. Where part of plaintiff's own demands stated in his particulars are barred by the Statute, he has a right to place r,(^ttinst these the items of set-off appearing in his particulars to be beyond six years : Ford v. Spaford, 8 U. C. R. 17. A payment to take a case out of the Statute must be clear and distinct : Notman v. Crooks, 10 U. C. R. 106. A letter in these words was held not to imply a promise to pay so as to get over the effect of the Statute : " I received your letter dated January 31. I am sorry to say I cannot do anything for you at present, but shall remem- ber you as soon as possible :" Oemmell v. Cotton, 6 C. P. 57. A promise given by one of several parties to pay his share of the debts of the firm who offered as a composition one-third of the debt (there having been three members of the firm), is not suf&cient to charge him in an action against the firm : Barnes v. Metcalt, 17 U. C. R. 388. Promising to have the amount placed to plaintiff's credit is a suffi- cient acknowledgment within the Statute : — Jones v. Drown, 9 G. P. 201. An acknowledgment of the debt raises an implied promise to pay : Lyon V. Tiffany, 16 0. P. 197. When the Stamp Act was in force it was held tbit a promissory note not properly stamped could not be used to take a case out of the Statute of Limitations : McKay v. Grinley, 30 U. C. R. 54. A settlement and statement of accounts appears to create a new cause of action within the Statute: House y. House, 24 C. P. 526. Payments should, in the absence of specific directions by the creditor, be applied on the earlier items of an account, not barred at the time of payment, but before suit had subsequently become so : Cathcart V. Haggart, 37 U. C. R. 47. In order to render the crediting of an account against the plaintiff evidence of payment by him of so mu.3h on an account due the plaintiff so as to take the case out of the Statute it must appear that the defendant clearly assented to its being considered a payment : Ball v. Parker, 39 U. C. R. 488, 1 App. R. 693. An executor de son tort cannot, by giving a confession of judgment or making payment on account of a debt, or by any other act of his, give a new start to the Statute as against the rightful administrator, or other parties beneficially interested in the estate : Grant v. McDonald, 8 Grant 468. Sec. 12.] DIVISION COURTS AMENDMENT ACT, 1886. 37 Mere physical weakness, however great, without proof of mental in- capacity, is not sufficient to render invalid an acknowledgment of debt : Emet V. Eme», 11 Grant, 325. Where a debt the remedy for which was barred by the Statute of Limit- ations, was acknowledged by the debtor and judgment was recovered therefor, a voluntary settlement made before such acknowledgment and bofore the remedy was barred, was held void as against an execution on the judgment : Irwin v. Freeman, 13 Grant, 465. Where the mortgagor is in possession, a mortgage may be presumed satisfied after twenty years from the payment of the mortgage money, Doe McGregw v. Hawke, 5 O. S. 496. Trust moneys are not subject to the operation of the Statute : Ruggles v. Beikie, 2 0. S. 370 ; Loring v. Loving, 12 Grant, 374 ; Ford v. Allen, 15 Grant 565 ; Scatcherd v. Kielj/, 22 Grant 8 : Tifany v. Thompson, 9 Grant 244 : McFadden v. Stewart, 11 Grant, 272 : Smith v. Retford, 19 Grant 274 ; Gunn v. Adams, 8 L. J. N. S. 211 ; Trust and Loan Co. v. Clarke, 3 App. R. 429 ; Cameron v. Campbell, 27 Grant 807 ; Re Oof, 8 P. R. 92. A I ause of action on a covenant to indemnify only accrues on payment under the indemnity and not when made : Ives v. Ives, T. T. 3 and 4 Vict. The Court has authority to prevent a Solicitor pleading the Statute to a just claim : Dougall v. Cline, 6 U. C. R. P46. If a debt is barred in a foreign country, the defendant must shew it : Fotoler v. '^ail, 27 C. P. 417. The Statute of Limitations does not bar the claim of the executor against the estate of the testator : Emes v. Ernes, 11 Grant 325. All exceptions and distinctions in favour of a trustee have been abolished ; R. S. 0., chapter 61, section 3 ; Low v. Morrison, 14 Grant 192 ; Pardo V. Bingham, L. R. 4 Ch. 735. When the Statute once begins to run, it continues to ruu notwithstand- ing any Bubsec^uent disability : Dixon v. Grant, 3 0. S. 511. The Statute of Limitations is a good defence to a claim for partnership accounts : Noyes v. Crawley, 10 Ch. D. 31. In an action for malicious persecuti )n the cause of action commences to run from the plaintiff's acquittal of the offence charged : Crandall v. Crandall, 30 C. P. 497. As to appropriation of money operating as a payment to save the Statute : See St. John v. Rykert, 10 Sup. R. 278. Where an EngUsh Companies' Act makes calls for shares a specialty debt, it does not thereby become a specialty debt in this Province : ISamed't Banking Co. (Limited) v. Reynolds, 36 U. C. R. 256. An action on a covenant in a mortgage is only barred after twenty years : Allan v. McTavifh, 2 App. R. 278 ; McDonald v. Elliott, 12 Out. R. ^1 3 •» ail 38 DIVISION COURTS AMENDMENT ACT, 1886. [SeC. 12. M •Jr. ^ *^ iM I.. I ii 98 ; but see SvXtan v. Sutton, 22 Ch. D. 611 ; In re Powers, Lindsell v. Phillips, 30 Ch. D. 291 ; Fearnside v. FKnt, 22 Ch. D. 679. An action on h judgment of a Court of record may be brought within twenty years : Boice v. O'Loane, 3 App. R. 167 ; see Caspar v. Keachie, 41 U. C. R. 599. An infant has six years after attaining his majority ' o bring an action for work and labor performed by him during his infancy : Taylor t. Pamell, 43 U. C. R. 239. Wherd a Umitation as to time is specially placed in a Statute to the bringing of an action it supersedes any general limitation : Cairns v. Water Commissioners of Ottawa, 26 C. P. 551 ; Trotter v. Corporation of Toronto, 29 C. P. 365 ; Attorney -General v. Walker, 3 App. R. 195 ; Sullivan v. Cor- poration of Barrie, 43 U. C. R. 12 ; Watson v. Lindsay, 27 Grant, 253. An action against a Clerk of a Municipality for omitting names from the Collector's Roll is not limited to two years under R. S. 0., chapter 61, section 1 : Corporation of Peterborough v. Edwards, 31 C. P. 231. A bill of exchange fell due on the 1st of December, 1875, and an action commenced thereon on the 1st of December, 1881, was held in time: Edgar v. McGee, 1 Ont. R. 287. A married woman was notwithstanding R. S. 0., chapter 126, section 20, held entitled to bring an action in respect of her separate property within six years after becoming discovert : Carroll v. Fitzgerald, 6 App. R. 322. [It is submitted that this cannot be considered law since " The Married Women's Property Act 1884," Lowe v. Fox, 15 Q. B. D. 667.] A settlement of partnership accounts cannot be opened up after six yeari : Cotton v. Mitchell, 3 Ont. R. 421. As to the effect of letters written by the president of a company after the original claim against it had been barred : See Shanly v. Grand Junction Ry. Co., 4 Ont. R. 156. The following letter was held a sufficient acknowledgment in writing to take the case out of the Statute of Limitations : — " I will try to pay you a little at a time if you will let me. I am sure that I am anxious to get out of your debt. I will endeavour to send you a little next week.'* Lee V. Wilmot, L. R. 1 Ex. 364. The following letters were also held sufficient : — " I shall be obliged to you to send in your account, made up to Christmas last. I shall have much work to be done this spring, but cannot give further orders till this be done." Again, " You have not answered my note. I again beg of you to send in your account, as I particularly require it in the course of this week" : Quincey v. Sharpe, 1 Ex. D. 72. The defendant, whose debt was barred by the Statute of Limitations, wrote to the plaintiff within six years before action the following letter : " I return to Bhepperton about Easter. If you send me there the particu- lars of your account with vouchers, I shall have it examined and cheque ! Sec. 12.] DIVISION COURTS AMENDMENT ACT, 1886. 39 sent to you for the amount due ; but you must be under some great mis- take in supposing that the amount due to you is anything Hke the sum you now claim." It was held that the debt was revived : Skeet v. Lindsay ^ 2 Ex. D. 314. A letter written " without prejudice " cannot be used to take a case out of the Statute of Limitations : In re River Steamer Company, MitcheWs Claim, L. A. 6 Ch, 822 ; See Vardon v. Vardon, 6 0. II. 719 ; Omnium Secu. ritis Co. V. Richardson, 7 O. R. 182. \.n executor may, in his discretion, pay a debt barred by the Statute of Limitations: Lowis v. Rumney, L. R. 4 Eq. 451. He may waive the Statute. Alston v. Tiollope, L. R. 2 Eq. 205. In order to keep a debt alive in the Division Court, proceedings must be taken under Rule No 127 : See, also, Manby v. Manly, 3 Ch. D. 101. A claim may be barred under the law of another country where the debt was incurred, yet not under our law : Harris v. Quine, L. R. 4 Q. B. 653: See Lizars v. Dawson, 32 U. R. 237. Where one man lends another money by cheque on his banker, the Statute commences to run from payment of the cheque by the banker, not from the time when drawn : Garden v. Bruce, L. R. 3 C. P. 300. A bond was given in India where the debt was barred on it in three years, yet it was held that in England it was a specialty debt and could be sued upon within twenty years: Alliance Bank of Simla v. Carey, 5 C.P.D. 429. It was held that the following letter was a sufficient acknowledgment of a debt under the Statute of Limitations :— " The old account between us which has been standing over so long has not escaped our memory, and as soon as we can get our affairs arranged we will sed you are paid ; perhaps in the meantime you will let your clerk send me an account of how it stands."— C';a*«more v. Turner, L. R. 10 Q. B. 500. Goods having been bailed by the plaintiffs to the defendant for safe custody, the defendant wrongfully sold them ; and the plaintiffs, more than six years after the date of the sale, being ignorant of the fact of its having taken place, demanded a return of the goods, which the defendant refused, it was held in an action of detinue for the goods that the Statute of Limi- tations ran from the date of the demand and refusal, and not from that of the sale, inasmuch as the plaintiffs, in such a case, though entitled if they had discovered the sale to sue immediately for a conversion of the goods were also entitled to elect to sue upon the breach of the bailee's duty in the ordinary cause by the refusal to deliver up on request. So also where an action of detinue is founded upon a bare taking and withholding of the property of another, without any circumstances to shew a trust for the owner, or to found an option to sue either for the wrong or for the breach of the original terms of deposit ; the Statute would run from the time at ft! II' Ml I '•;■ Vr 40 DIVISION COURTS AMENDMENT ACT, 1886. [Sec. 12. which the property was first wrongfully dealt with : Wilkinson v. Verity, L. R. 6 C. P. 206. Where a testate/ being at the time of his death in 1857, indebted to B., on simple contract, gave by his will his real and personal estate to his wife, for life, and appointed J. and E. executors. The will was not proved for many years, but the widow took possession of all the property and paid interest on the debt to February, 1864. In September, 1870, the will was proved ancl then B. filed his bill on behalf of himself and other creditora against .he widow and the executors. It was held that the claim was barred by the Statute of Limitations : Boatwright v. Boatwright, L. R. 17 Eq. 71. It. Wilby v. Mgee, L. R. 10 C. P. 497, the letters of the defendant produced in evidence were held a sufficient acknowledgment of the debt. Where there is a discontinuance of a partnership without any dis- solution or winding up the affairs, six years do not form a bar to an action to dissolve the partnership and take the accounts : Miller v. Miller, L. R. 8 Eq. 499. But see Noyes v. Crawley, 10 Ch. D. 31. A compulsory payment of interest does not save the operation of the Statute : Morgan v. Roiolands, L. R. 7 Q. B. 493. Where there is a conditional promise to pay, it must appear tiiat the condition is performed to entitle the plaintiff to recover : Meyerhoff v. Froehlich, 3 C. P. D. 333, 4 C. P. D. 63. Where a promissory note was made payable three months after demand, payment of interest was held evidence of a demand and from which lime the Statute would run : Broxon v. Rutherford, 14 Ch. D. 687. One L. in 1846, promised to pay three months after date to B., or to C. his wife, the sum of £500. B. died in 1863, leaving C. surviving. There was an indorsement on the note in L., the maker's handwriting of his name and the year 1866. C. died in 1868, and it was held that it was not intended to make a new note and that there was a sufficient acknowledgment to exclude the Statute of Limitations : Bourdin v. Greenwood, L. R. 13 Eq. 281. The following was held not to be a sufficient acknowledgment : — " I thank you for your very kind intentions to give up the rent of T. B. next Christmas, but I am happy to say at that time both principal and interest will have been paid in full." Green v. Humphreyti, 26 Ch. D. 474. In an action for conversion the Statute of Limitations runs from demand and refusal : Spackman v. Foster, 11 Q. B. D. 99. In an action to recover by way of damages, money lost by the fraud- ulent representations of the defendant, a reply to a defence of the Statute of Limitations that the plaintiff did not discover and had not reasonable means of discovering the fraud within six years before action and that the existence of such fraud was fraudulently concealed by the defendant until within such six years was held good : Gibbs v. Gtdld, 8 Q. B. D. 296, 9 Q. B. D. B9. It will be observed that the section has application not only to any Sed. It? ] DIVISION COUKT3 AMENDMENT ACT, 1886. 41 Statutory defence which the primary debtor or garnishee may have, but also to any other defence or set-o£F. This is new practice in Division Court (,.,1'nishment proceedings, but it mtiH be observed because the Statute so declares it. Set-off is a Statutory defence, so also is Counter-claim. It is therefore compulsory now for either a primary debtor or garnishee to comply with the provisions of this section. The writ«r has tried in the following paragraphs to epitomize the rights and duties of the primary debtor and garnishee, as well as point out to the primary creditor and Division Court Clerk their respective duties. If either the primary debtor or the garnishee has any defence, or if any admissions should properly be made by either one, he should do so in the following manner : — (1) To file with the Clerk of the Court the particulars of any defence, statutory or otherwise, within eight days after service of the summons on him. The time will be calculated exclwively of the day of service. For example, if service should be made on the ist of any month, the notice should be filed with the Clerk not later than thd 9th of the same month. If the notice was merely mailed to him that day, but not received until after the expiration of the eight days, it would be too late. Unlike the acceptance of an offer to contract, where the mailing of a letter of unconditional acceptance concludes the contract, the scope and language of this Statute would render such a rule of law inapplicable. Sundays are included in the eight days : Sinclair's D. C. Law, 1885, pages 21, 109 and authorities there cited. This section imposes ii greater obligation on the primary debtor than on a defendant in the case of a special summons. In the latter case the " particulars " of defence need not be given where it is not of a Statutory nature, but under this section such particulars are necessary. (2) If either the primary debtor or garnishee has no defence to the action, or only to a part thereof, then a notice should be given admit- ting the whole or such part, and a denial of the balance of the claim, with " particulars " of the defence which either may have thereto. (3) On the Clerk's receiving the notice under this section he must forthwith (Sinclair's D. C. Law, 1883, pages 19 and 20) send by mail to each of the parties to the action, a copy of such defence, set-off or admission. As will be seen from the authorities cited in the work just quoted the Clerk and his sureties would be liable for any default of the Clerk, but any party to the suit would not be prejudiced by the omission. The notice need not be sent by the Clerk to the person giving it, but only to the other parties to the suit. (4) The primary Creditor may file with the Clerk a notice that he admits the defence or set-off. No time is here prescribed for this notice *8 r> 42 DIVISION COUKTS AMENDMENT ACT, 1886. [Se(\ 12. ■•Kl ^(! being filed, but it should be within a reasonable time. The Clerk is to send a copy of such notice by mail to the garnishee forthwith. (5) In the absence of any notice of defence or set-off from any primary debtor or garnishee, the Judge may in his discretion give judgment against the primary debtor or garnishee. It will be observed that it is not compulsory upon the Judge to act upon the default of the primary debtor, but if the proceedings were regular ami the Judge was satisfied that no injustice would be done by it, he could give judgment by default. Three things occur to the writer in this connection : Fimt, that in the absence of notice, or if notice given too late, no express provision is made for allowing the primary debtor in to defend as is the case under the 80th section of the Division Courts Act, (Sinclair's D. C. Act 103), but probably section 145 of the Division Courts Act (Sinclair's D. C. Act 154), makes provision for that. Second, that the effect of the judgment by default is not declared as in other parts of Division Court legislation but is left in doubt : Sinclair's D. C. Act 1880, 31 and following pages and Sinclair's D. C. Law 1885, pages 1, 22, 23 and 227 : Clarke v. Macdonald, 4 Ont. 310; Ohadwick v. Ball, 14 Q. B. D. 855 ; Re Knight v. Medora, 11 Ont. R. 138. The judgment would probably have the same effect as in other garnishment proceedings. Third, what course the Judge is to pursue in the event of exercising his dicretion not to give judgment by default against the primary debtor, or what position the primary creditor may be in in that case. It is submitted that all parties would in such an event be relegated to the rights they would have possessed had the Statute not been passed. If the primary creditor fails to file a notice admitting or rejecting the defence, set-off or admission of liability put in, the garnishee shall not be bound to attend at the trial and the sum admitted to be due or owing by the garnishee (if such admission has been made) F.hall be taken to be the correct amount of his liability unless the Judge otherwise orders. If the Judge does so order, then the Clerk shall notify. the garnishee, who Bhall have an opportunity of attending at a subsequent date and being heard before judgment is given against him. If such opportunity were not given, any proceedings in the absence of it would be void : Sinclair's D. C. Act 81 and the cases at page 221 of Sinclair's D. C. Law, 1885 ; even though the party were a pauper : Tucker v. CoUinson, 16 Q. B. D. 662. The fact that a judgment is more than six years old, without revival, does not appear to bar a garnishment proceeding : Fellowes v. Thornton, 14 Q. B. D. 335. The debt, legal or equitable, owing by a garnishee to a judgment debtor which can be attached, must be a debt due to such debtor alone, and where it is due to him jointly with another person it cannot be garnished: Sec. 12.] DIVISION COURTS AMENDMENT ACT, 1886. 43 Macdonald v. The Taequah Qold Mines Co., 13 Q. B. D. 535 ; Webb v. Stenton, 11 Q. B. D. 618. A debt assigned by a person in trust for his intended wife, in con- templation of marriage is not garnisbable, even although the settlement might be impeachable : Vyse t. Brown, 13 Q. B. D. 199. As to when a solicitor's lien prevails over a garnishment proceeding : See Dallow v. Garrold, 13 Q. B. D. 643. Moneys coming to a married woman under settlement are not on judgment against her and her husband the subject of garnishment : Chapman v. Biggs, 11 Q. B. D. 27. Where money not attachable is in a garnishment proceeding to which no cause is shewn, ordered to be paid over to the attaching creditor, the rights of the latter cannot be questioned so long as the order for payment stands : Randall v. Lithgoto, 12 Q. B. D. 625. An award of arbitrators appointed under the Railway Act, of money due as the value of land, is not garnishable before conveyance : Howell v. Met. D. Ky Co., 10 Ch. D. 508. The income of money vested in trustees, not yet due is not garnishable : Webb V. Stenton, 11 Q, B. D. 618. A subsequent encumbrancer cannot be cut out of his security by garnishment of moneys in the hands of a previous encumbrancer on sale of the premises : Ghatterton v. Watney, 16 Ch. D. 378, 17 Ch. D. 259. A garnishee order cannot be made nor summons issued attaching a debt from a partnership firm described by its partnership name : Walker V. Rooke, 6 Q. B. D. 631. See, also, the notes to section 21 post. If there is a reasonable dispute or even a suggestion that trust moneys are not garnishable, an order for payment should not be made until all parties are before the Court : Roberts v. Death, 8 Q. B. D. 319. The costs of all notices required to be given are to be costs in the cause, and in no case are they to be payable by the garnishee unless the Judge specially orders it. The notices must all be in writing and when sent by the Clerk, by mail, must be registered: Sinclair's D, C. Law, 1885, pages 17-22. Relative to the extent of the liability of the garnishee in a garnishment proceeding, an eminent legal writer has said : "As the attaching creditor can hold the garnishee only to the extent of the defendant's claim against the garnishee, and can acquire no rights against the latter except such as the defendant had ; and as he is not per- mitted to place the garnishee in any worse condition than he would be in, if sued by the defendant ; it follows necessarily, that whatever defence the garnishee could urge against an action by the defendant, for the debt in respect of which he is garnished, he may set up in bar of a judgment against him as garnishee : Strong^s Executor v. Bass, 35 Penu. 333 ; Myert v. Baltzell, 37 Penn. 491 ; Edion v. Sprout, 33 Vermont 77 ; Firebaugh v. III 151 •r, § ll I < ' •.■• 5;: :^ii' !ii 44 DIVISION COURTS AMENDMENT ACT, 1886, \8e.C,. 12. lit. • '■■'■?';, of either party are allowed to be present and take part in the deliberation of the arbitrators, it will invalidate any award made: Re Hubbard v. The Union F. Int. Co., 44 U. C. R. 391. The fraudulent, improper or malignant conduct of the arbitrator alone, without any collusion with the person seeking to enforce the award is no defence to an action upon the award : Nerval y. Canada S. Ry. Co., 16 L. J. N. S. 53, S. 0. 5 App. R., page 16 per Moss G. J. Evidence taken behind the back of one of the parties renders the award bad : Whitely v. MacMahon, 32 C. P. 453. See page 4 ante. Parties may waive the time for making the award by appearing on the arbitration without objection : Thurlow v. Sidney, 29 Qrant, 497. Where power is given to two arbitrators to appoint a third, the person so appointed is a third arbitrator, not an umpire: Willton v. York, 46 U. C. R. 289. The counsel or solicitors of the parties can enlarge the time for making an award : Oakei v. Halifax, 4 Sup. B. 640. Judgment could not be entered on an award under the 149th section of the Division Courts Act where the award did not fix with certainty the amount to be paid, or give precise data from which the amount could be ascertained from the award, the exact amount that should be paid : Alexander v. McNear, 84 Albany L. J. 296. In Russell on Awards, 4th Ed. 444, it is thus laid down : — "Formerly if an award was defective the Court could not, without consent, send it back to the arbitrators to amend it. They could only set it aside." Kyniton v. Liddell, 8 Moore 223 ; Ex parte Cuerton, 7 D. & R. 774. It is submitted that ouch is the law in the Division Courts yet. The 213th section of the Common Law Procedure Act, (R. S. O. 656) does not nor does the preamble to that Act (R. S. 0. 609) nor does the 244th section of the Division Courts Act apply to references in suits in the Division Courts : Clarke v. Macdonald, 4 Ont. R. 310 ; Bank qf Ottaiwa v. McLaughlin, 8 App. R. 643. Where a submission is silent as to costs an arbitrator has no power to adjudicate upon them, but each party must bear his own costs and half of the costs of the award : Re Harding and Wren, 4 Ont. R. 605 ; Devanney V. Dorr, 4 Ont. R. 206. Interest in the subject matter of the reference by the arbitrator will in- validate the award. See page 10 ante and Re Muakoka and Oravenhurtt, 6 Ont. R. 352 ; Russell on Awards, 4th Ed. 103, bat if parties enter into a Se<'.. 18.] DIVISION COUUTS AMENDMENT ACT, 188(i. 47 gubmisBion knowing the interest of the arbitrator, t]ie award is valid. The rule of law only applies to a ueret interest.— /&. An arbitrator may be appointed verbally .- Cruiekahank v. Oorbey, 80 C. P. 466, 5 App. B. 415 S. G. An award must be signed by all the arbitrators in the presence of each other. Freeman v. 0. S( Q. Ry. Co., 6 Ont. R. 413 and oiises there cited ; Demoreity. Q. J. Ry. Co., 10 Ont. R. 616. The improper reception or rejection of evidence by an arbitrator with- out any corrupt intent does not amount to legal misconduct upon which an award will be set aside : Webiter v. Haggarl, 9 Ont. B. 37. Where a.Ti action for tort that dies with the person is referred to arbi- tration, the reference drops on the death of either party, and any agreement contained in it that it shall survive such death is inoperp.tive. Bowker v. Evans, 15 Q. B. D. 666. The difference between valuert merely and arbitrators should always be kept in view : In re Dawdy, 15 Q. B. D. 426. Power over " the cost of the reference " includes power to award the costs of the award. • In re Walker and Brown 9 Q. B. D. 434. In the absence of the 148th section of the Division Courts Act a reference would be revocable by either party before award made : Fraser v. Ehremperger, 12 Q. B. D. 310. A party cannot be a judge in his own cause, but, if his opponent consent to his deciding the question between them, the Court will not allow an objection afterwards though he decide it in his own favour : Russell on Awards, 4th Ed. 104. There can be no binding award concerning an illegal matter : Steers V. Lathley, 6 T. R. 61. Felony is not the subject of arbitration although some misdeipeanors are : Russell on Awards, 4th Ed. 10. An award ought to be possible. It should also be consistent and in- telligible and not contradictory. It should not be repugnant : llussell on Awards, 4th Ed. 288. There is no distinction between the award of a lay and legal arbitrator : Russell, 288. It is no ground for setting aside an award that it was made contrary to the evidence : Bradshaw's Arbitration, 12 Q. B. 662. An award should be positive either in affirmative or negative : Ferguson v. Norvum, 4 Bing. N. C. 52. Where the bad part of an award is separable from the good, the award will only be set aside as to the part that is bad ; but if both parts are so connected as not to be separable, then the whole is bad : Russell on Awards, 4th Ed. 307-318. The costs of the award are the amount of the arbitrator's charges. MMI 4« DIVISION COUUTS AMBNUMKNT ACT, 188B. fSec. 18. : : Hit:' , ■'"•«|; "^ •■■.„. ""'■"5, 1;^ ! whicli arc usually paid to him when the award la taken up, but if the demand is exooHHive it ia Hubject to taxation by the Clerk of the Court : Uusgell on Awards, 4th Ed. 353 ; (tray op Costa. 419. When an award is made by an umpire on the disagreement of the arbitrators, or on their fniliug to award, he is entitled to charge the fees due to the arbitrators as part of the coats of the umpirage : Ellison v. Ackroyd, 20 L. J. Q B. 1!)3. If the umpire fail to charge them, the party who has paid the arbitrator's fees will be entitled to have the amount allowed him among other costs of the reference : Russell 363. An arbitrator may in general fix the time and place of payment, though he need not do so : Tvilkimon v. Page, 1 Hare 276. He may award one party to give the other a promissory note payable at a future day : IJooth v. Oarnett, 2 Strange 1082. The arbitrator may order one party to execute a bond for the payment to the other of an aa- ccrtiiined sum of money at a specified time, or by instalments : Russell on Awards, 4th Ed. 388. He may add that if the sum awarded be not paid by the appointed day, the party shall pay a larger sum by way of penalty ; or when the payment is to be by instalments, that if one be overdue the whole amount shall be payable at once : Russell 389. The following is given as a Form of Order of reference. It is some- what fuller than the authorized form to be found at page 296 of Sinclair's D. C. Act, some special clauses being added. The agreement of the parties to a reference may be framed from it. In the ORDER OF REFERENCE. Division Court, in the County of Between A. B. Plaintiff, C. and - D.- Defendant. By consent of the plaintiff and defendant {or agents if so), given in open Court, (or produced in writing to the Court, signed by themselves or their agents.) It is ordered that all matters in difference in this cause (and \f consented to, add, " and all matters within the jurisdiction of this Court in difference between the said parties)," be referred to the award of 80 as said award he made in writing, ready to be delivered to the parties entitled to the same, on or before the day of ; and that the said award may be entered as the judgment in this cause. (1) The said arbitrator to have power by writing, signed by him, from time to to time to enlarge the time for making his award. (2) That if either of the parties be dead before the making of the award, that the same may be afterwards delivered to their respective personal representatives who shall require the same. S«'r. 18.1 DIVISION COURTS AMENDMENT ACT. IHHli. 4\) (:i) That the costs of tlie reference and award Hhall be in the discretion of the said arbitrator (or an the ciine may he.) (I) Tliat the arbitrator shall be at liberty to order and determine what he shall think fit to be done by either of the parties respecting the matters referred. (')) That the witnosses and purties shall be examined by the oi bitrator on oath. ((() That tiio arbitrator shall be at liberty to proceed ex parti, in case either party after reasonable notice, shall at any time neglect or refuse to attend on the reference. (7) That the parties respectively shall produce before the arbitrator all books, deeds, papers, accounts, vouchers, writings and documents within tlieir possession or control, which the arbitrator may require and call for as in his judgment relating to the matters referred. (8) That neither party shall wilfully and wrongly do or cause to be done any act to delay or prevent the arbitrator from making his award. (',)) That neither of said parties shall bring or prosecute any action against the arbitrator concerning the matters referred. (10) That if either party shall by affected delay or otherwise, wilfully prevent the arbitrator from jiroceeding in the reference, or from making his award, he shall pay such costs to the other as the arbitrator shall think reasonable. (II) The said parties jointly and severally agree with the said arbitrator in consideration of his taking upon himself the burthen of the referc :e, to pay him his reasonable charges for the arbitration and award. (Here add any other termn that the. Judpe may prencribe nr the partien may a ''K..*i. ^^B ' ^^B It ia not generally necessary for the defendant to swear to merits when tbe application is made on his part, nor is it generally necessary in such cases to swear that it is not for delay : BaddeUy v. Qilmore, \M. & W. 66. If there is reason to suspect that the object of the defendant in making the application is to delay the plaintiff, the Court will sometimes order him to bring the money into Court : Sparkea v. Barrett, 6 Sontt 402 ; Lloyd v. Key, 3 Dowl. 258. It is to be regretted that the legislature in providing for the exam- ination de bene esse of witnesses did not place beyond a doubt the means of compelling the attendance of the witness and did not impose some pun- ishment upon defaulters. The law is always construed strictly in matters affecting the liberty of the subject, and the Courts would be very apt, in case a witness should be committed for disobeying a subpoena issued as suggested, to hold that section 97 was not wide enough to cover examinations elsewhere than at trials and arbitrations. In the High Court the witness might for wilful disobedience of the order be attached for contempt : Haldane v. Eckford, L. B. 7 Eq. 426 ; Peterson v. Bowes, 4 Grant, 44 ; Ross v. Robertson, 2 Ch. Cham. 66 ; The Merchants Bank v Pierson, 8 P. R. 123 : Joy v. Badley, 22 Ch. D. 671 ; but in the Division Court in the absence of express Statutory provision, tbe power to impose a penalty for refusing to attend on the order to examine does not seem to exist R. v. Ltfroy, L. R. 8 Q. B. 134 ; Martin V. Bannister, 4 Q. B. D. 491. Further, the production of books and documents has not been provided for. A copy of the order must be served upon the opposite party, his soUoitor or agent. Rule 126 of Division Courts, in terms applies only to notices to be given to the opposite party, and it is doubtful whether service in the manner therein provided would be good service under the Statute of a copy of the order. Two days notice must be given. The general principle of law as to computation of time is that one day shall be inclusive and the other exclusive : Cameron v. Cameron, 2 P. R. 259 ; R. v. Cumberland {Justices), 4 N. & M. 378. See, also, Lester v. Garland, 15 Yes. 248 ; Arch. Pract. 12th Ed. 162 ; Sinclair's D. C. Law, 1885, 21. If the last be a Sunday, it would be included. — lb. The Statute says : — ' * The evidence shall be taken on oath. " Power is given by section 19, sub-section (2) of this Act, to the person appointed to administer the oath. This includes affirmations and declarations : See R. S. 0., chapter 62, sections 12-14. The examiner has no discretion as to the materiality of the questions put unless upon matters which would clearly and palpably not be evidence : Surr V. Walmsley, L. R. 2 Eq. 439 ; but if any question is objected to, the objection should be noted by him : Robinson v. Duties, 5 Q. B. D. 26 ; In iViight v. Wilkin, 4 Jur. N. 8. 804, it was said that the Court would not Sec;. 18.] division courts amendment act, leae. 63 delegate to the examiner the power of treating a witnesa as hostile so as to authorize the examination to be oonduoted in the nature of a oross- examination by the party calling him, but Lord Cairns L. C. in Ohheii v. Terrero, L. K. 10 Ch. 129, strongly disapproved of this ruling, and pointed out that if a witness or his counsel thought that he was being unfairly dealt with upon an examination, he might refuse to answer a particular question, and upon that refusal the matter might be brought before the Court, who would decide whether the examiner was pursuing a proper course or not in tiUowing the witness to be treated as a hostile witness. See, as to hostile witnesses, Taylor on Ev. 7th Ed., 1177, 1178; Rice v. Howard, 16 Q. B. D. 681 ; see, also, Buckleii v. Cooke, 1 K. & J. 2!l. The depositions must be signed by the witness, if not signed they could not be received in evidence except by consent. The examiner's room is not a public court, and he must exclude other persons than those entitled to be there, if requested by either party. In re Western qf Canada Oil, Landt, and Works Co , 6 Ch. D. 109. Tho depositions may be used at the trial. The fact that the Judge has made the order directing the evidence to be taken by an examiner is suilicient to enable the party obtaining the order to put the deposi- tions in evidence saving all just exceptions : Ryan v. Devereux, 26 U. C. R. 100. In Bidder v. Bridges, 26 Chy. Div. 1, at page 15, the Court required an undertaking from the plainti£F that if requested by the defendant at the trial he would call any of the witnesses who should have been examined de bene ease who might be alive at the trial. If the examination is not used no costs of it should be allowed : McMillan v. McMillan. 8 L. J. N. S. 285 ; Curling v. Robertson, 7 M. ' I '■I s, I. 4. \ I CA DIVISION COUKTS AMENDMENT ACT, 1886. [Sec. 18. depositions would be rejected : Steinkeller v. Newton, !) 0. & P. 313 ante paKCB 3 and 9, but it is not requisite that he should exercise that power ; all that is required is that he have the opportunity of doing so: Gazenove V. Vaughan, 1 M. & S. 1. If the opposite party should give notice that he would not take part in the examination it is possible that such would be a waiver of the giving of notice : McCombii v. Anton, 6 M. & G. 27. Tlie deposition could not be received as evidence in a suit between othe parlies : Doe v. Derby, 1 A. & E. 783, 786. All just exceptions to tlio adiii.Hjion of the deposition in evidence are reserved to the oppo- site paUy. On this point and the subject of examination generally, see Sinclair's 1). C. Law, 1885, 110-127. If no objection should be made before the examiner it might have the effect of waiving the right afterwards to object to the admis8)).bility of the objectionable part at the trial : Rohivson v. Davifs, 5 Q. B. D. 26. A mere irregularity in the taking of the deposition would be the subject of special application to tue Judge to have it suppressed, but it would ni/t bean objection to its admissability at the trial: Orill v. Iron Screw Collier Co. {Limited) L. R. 1 C. P. 600. The evi'buce must be taken on oath, reduced to writing, signed by the witness, transmitted to the Clerk of the Court, and by him kept on file, ready to be produced when required. To render it evidence it should be produced f-om the proper custody, and purport to be duly taken : Bedford V. McDonald, 14 C. P. 150. The production by the Clerk would not be necessary to its reception, but if otherwise correct the evidence would, it is i-ubmitted, be receivable. It would F.eem that the evidence could be taken if material, whether there were ether witnesses to testify to the same fact or not. Tlie writer submits that thj rule laid down in that respect in Jameson v. Jones, 3 Ch. Cham. 98, does not apply to this section. If ii. appeared tha^ the >atness was able to attend the trial the deposi- tion could aot be used. The write'' submits that the onus of shewing such facts as exclude the deposition as evidence is on the party opposing its reception : See Ryan v. Devereux, 26 U. C. R. at pages 108, 109, The application for order, if not ex. jiarte, may be either by summons or notice : Sinclair s D. C. Law, 1885, 275, and may be served in the manner pointed oui in pages 96-109 of that work. Notice is more con- sistent with the praci'ce in the higher Courts. Either ptaty could use the deposition as evidence. The following are given as Forms that may be used on applications under this section ' 8 Sec, 18.1 DIVISION COUKTS AMENDMENT ACT, 188G. «5 FORM OF AFFIDAVIT FOR ORDER TO EXAMINE A SICK, AGED, OR INFIRM WITNESS. In lie Division Court of ilie County of Between A B , Plaintiff, C- aud D- Defendpnt. I, , of etc., the above named plaintiff (or defendant) in this oause, make uatli and my -. 1. This action is brought for (here state concisely the cause of action sued for.) 2. The summons herein was served on or about the day of A, D. 18 , f.nd this action can be heard at the sittings of Uie Court which will be held on the day of next (or instant.) 3. The defendant has \or if the defendant makes the affidavit, "I have") tiled a notice disputing the plaintiff's claim Lereiu. 4. That E. F., of i&c. (a peison residimi wiiliin the Province) is a material and necessary witness u uy behalf as I am advised and verily believe, and I cannot safely proc* > d to the trial hereof without his evidence, and that the materiality of his evidence consists in this \^here in a general way describe it}. 5. Tho said E. F. is sick, being dangu'-jt .sly ill with (here describe disease) and not expected to recover (or as the case may be), or that he is "aged," or " infirm," being now years of age, or " that he ic about to leave the Province " (as the case may be), and that his attendance at Court AS a witness cannot by reason thereof be procured. 6. I am advised and believj that I have a good cause of action (or defence) herein on the merits, and that this application ip iiiade bona fide and not for the "purpose of delay." Sworn, &o. I The ajHdavit should clearly shew that the person proposed to be exam- ined is weak, aged, or infirm, or about to leave the Province, and that his attendance at Court as a witness cannot by reason thereof be procured. ]f yoss'ihle this should not be left to a general statement merely, but facts and circumstanct; should be given. If founded on si'-kness of the iritness, an affidavit by or a verified certificate of the medical attendant should form part of the application, the Jormar being preferable. The affidavit had better be made by the a/iplicatit, his solicitor, or agent. Ax a general rule the mate- riality of the proposed evidenct need not be given, as appears in the 4th paragraph, but if ttie application is Itkely to lie opposed, or there is anything exceptional in the circumstances, it had better be stated nith particularity. • ^ DIVISION COURTS AMKNDMENT ACT, 1886. [Se('. 18. Pi ' ••'4 Z" FORM OF NOTICE OF APPLICATION FOR ORDER TO EXAMINE SICK, AGED, OR INFIRM WITNESS. In the Division Court of the County of Be'iiween A B , Plaintiff, and C- D- -, Defendant. Take notice, that a motion will be made on behalf of the above named plaintiff ^or defendant) to the Judge of this Court, at his Chambers in the Court House, in the City of Hamilton {or as the case may be) on the day of , 18 , at o'clock in the forenoon, or so soon thereafter as the motion ctiU be heiird, for an order under the 18th section of the Division Courts Amendment Act, 1886, to exf mine E. F., -^i Ao., a material and necessary witness in this cause for the plaintiff (or defendant), unrldr the provisions of said section, and that on such motion will be read the affidavits of , true copies of which are hereto a"jn<;xed. Dated the day of 18 . To (Signature of the parly, his Solicitor or Aytnt.) {Name 0/ parly to lohom notice given.) [The application may be made either by notice or summons under Rule Ifo. 184, which came into force on the 1st of January, 1885, S.../:o.ir's D. G. Law, 1885, page 275. Gopu-s of the affidavits, dtc, on which the application ii founded should be attached to the notice served. On the motion, the applicant should produce an affidavit of service of the notice of motion and of the copies of affidavits, entitled in the Court and cause. In ex parte applications, of courne, only the papers upon which the motion is made need be produced to the Judije. The witer loould recommend in all case.- not of an extreme nattire or of i/reat urgency, that ex parte applications should be diacouraijed. The right of the opposite party to cross-examine at the trhil should not be interfered with unless clearly for good cause : Berdan v. Greenwood, 20 Ch. D. 764-769. A party takes an ex parte order at the risk of having it discharged on good grounds .- Bidder v. Bridges, 26 Ch. D. 1. An ex parte order should, not be made for the examination (f the applicant ; Price v. Bailey, 5 P. R. 256. It is very doubtful if the application should in any case be granted for th^ examination of an expert ; See ante page 26. The writer sec: no reason ichy the Judge should not. \f he deems it necessary, require some general statement of the evidence proposed to he taken, and if it does not appear to be material, to refuse the order: Langen v. TaU', 24 Ch. D. 522.] Se(*. 18.] DIVISION COURTS AMKNDMENT ACT, 188(5. «7 FORM OF ORDER FOR EXAMINATION OP SICK, AGED, OR INFIRM WITNESS, WHEllE BOTH PARTIES APPEAR ON APPLICATIC»N. In the Division Court of the County of Between A B , Plaintiff, C- and — D Defendant. Date, Ac. Upon the apphcation of the above named plaintiff {or defendant) in this cause, and upon reading the affidavit of filed herein, notice of this application and affidavit of service thereof, and of a copy of said affidavit of the said on the defendant {or plaintiff) in this cause, and upon hearing the parties by their solicitors, (or agsnts) : It is ordered that G. H., of &c., do take the evidence on oath of E. F., of &c., a witness on behalf of the plaintiff {or defendant), pursuant to the 18th section of the Division Courts Amendment Act, 1886, at such time and place as the said G, H may by writing appoint, and shall reduce such evidence to writing, aid cauce the same to b" signed by the said E. F., and when so signed shall duly transmit the same to the Clerk of this Court. It is further ordered, that the defen^^ant {or plaintiff), his solicitor or agent shall have two days' notice of the time and place of such examination : that the costs of this order shall be cost 3 in the cause, and that the costs of the examiner be reserved until after suc'a examination. {Any other termi> may be here inserted.) Judge. [Should the application be made ex parte, a p'oceeding to be diseour- aijid, except in urgent or extreme '^asen : Berdan v. Greenwood, 20 Ch. D. 764,-769 ; Bidder v. Bridget, 26 Ch. D. 1, the above Form can easily be adapted to it. The Statute say,i nothing about pavvient to thj witness of his expenses of attendance. It is submiiied that before belnn sworn he icould, if demanded by him, be entitled to receive the ordinary jvis qf a witness in the Division Court. See Sinclair's D. C. Law, 1865 126.] h » I DIVISION COURTS AMENHMENT ACT, 1886. [Sec. 19. ™^i Itl*" el '—. '•■■•• I Examina- 19 (n ^11 oi'dei' mav also b(^ obtained for the tion 01 ^ ' " Msidlng at excamination of a witness who resides in a remote from*p?ace pait of the Province, and at a great distanc^e from °'*'*''' the place of trial, i^ it be clearly made to appear that his atte^xdance cannot be procured, or that the expense oi his attendance would be out of pro- portion to the amount involved in the action, or would be so great that the party desiring his attendance should not, under the circumstances, be required to incur the same ; and the proceed- ings tliereon, and the order as to costs, sliall be the same as in the case of an order in the next prece- ding section mentioned. (2) The person appointed under this and the next preceding section sl>all have authority to administer an oath to the person to be examined. An order under this section is obtainable for the examination of a witness upon the fohowing conditions : (1) If he resides in a remote part of the Province of Ontario, and at a great distance from the place of trial, and in addition, if it is made clearly to appear that the attendance of the witness 'cannot be procured. (2) That vhe witness so residing in a remote part of the Province, the expense of his attendance would be out of proportion to the amount involved in the action, or would be so great that the party desiring his attendance should net, under the circumstances, be required to incur the same. The words " in a remote part of the Province " are of relative import. No definite meaning can be given tn them. They must be con- strued in relation to the circumstances of tlio case. Mere distance would not govern That emiutftit lexicogrnplier, Worcester, defines " remote " as " distant in place, time or conneotion : far; far otY ; not near; not nigh." The residence of a witness may under this wection be considered " remote " from the place of trial allliougli the actual ilistance may not be great. It may and fnnjuentlv Jooh depend on tlie season of the year, the accessi- bility at the particular time by steamboat, iwilway, or other means of Sec. 19.] DIVISION COUBTS AMENDMENT ACT, 1886. 69 conveyance. What in the wnter Heason may be considered " remote " may not be so iii summer time. During the winter season Sault Saint Marie may be " remote " from Owen Sound, Meaford, or Southampton, bat in the summer season it is not so. Thene places are, ps a matter of fact, more accessable in ohe summer seasor to people living in Sault Saint Marie than many places within the jurisdiction of the Judge of the District of Algoraa. So that remoteness must not be decided with reference to distance alone. The seaso)! of the year at which the Court if to be held, the accoBsibility to the place of trial, the iRcilities of travel by : ail or steam- boat, the expense which the witnesss would be put to, the time of his absence from home, the convenience of travel to and from the place of trial, would all come within what Worcester has defined remoteness to be, something " distant in place, time or connection." The same may be said of the expression "great distance from the place of the trial." It is en expression which must be considered and construed relatively. Like " grops " negligence it is simply ' reiaoteness ' after all : See Wilson v. Brett, 11 M. A \V. IIJ : Benl v. Smtli Devon Ry. Co., 3 H. & C. 337; Grill V. Qeneral Iron Screw Go., L. ^,. 1 C. P. p. 612. No general rule o^ construction can be applied, and he that construes it best must d^ so in the light of these maiuy circumstances which surround most oases, anJ not by any arbitrary rule of construction to be gained from decided cases on some other Statutes with different objects and purposes. If the Judge determines that under all the circumstar.ces the witness does reside in a remote part of the Province, and at a great distance from the place of trial, he has next to consider :— (1) Whether it is made clearly to appear that the a-tendance of the witness cannot be procured , or ; (2) Whether the expense of the attendance of the witness ^ould be out of proportion to the amount involved in the action, or ; (3) Would be so great that the party securing his attendance should not under the ciicumstauces be required to incur the same. If the .ludge, having settled the first proposition in favor of the appli- cant, determines either one of these last two propositions in the affirmative, then the order should be made. The writer does not consider it necessary to give Forms of proceedings under this section. Any party applying can readily change the Forms given in the notes to the next previous section so as to adapt them to an application under this section. The first four paragraphs of the Form of Affidavit, in the notes to section 18, may be given entire and then such facts must be stated in the subsequent paragraphs as shew that the witness resides in a remote part of the Province and at a great distance from the place of trial. The afiidavit must also shew " clearly " that the attendance of the witness cannot be procured, or that the expense of his attendituoe ih I BfiiUfiiTnBHirnriniinii" 70 DIVISION COUllTS AMENDMENT ACT, 1880. [SeO. 19. •»«■.*» ■ •*<■■;» I. would be out of proportion to the amount involved in the action, or would be 80 great that the party applying for the order should not under the circumstances be required to incur the same. The notice of motion will require only a slight change. The Form of Order above given can nearly be used verbatim, making such changes however in the number of the section and otherwise as the oircumatances of the case require. It will be observed that the proceedings under this section and the order as to costs shall be the same as in the case of an order under section 18. What the writer therefore has said in the notes to that section, will so far as these matters are concerned, be equally applicable to an application under this section. This and the IStli section must not be construed as an enlargement of the provisions of the l()4th section of the Division Courts Act in regard to affidavit evidence. They are not so, but are intended to make special provision for taking the evidence of witnesses in the particular cases pointed out by the Statute. The evidence must be duly taken according to the provisions of section 18, and cannot be receiv«>d in the form of an ex parte deposition. These two sections are intended to facilitate the taking of evidence and to save expense, but must not be construed as enlarging the rules of evidence beyond the express enactment of the Statute. It is the Common Law right of every party to have the witnesses of his adversary brought into Court and subjected to the truth-giving process of cross- examination. He cannot be deprived of that right except by Statutory declaration. When that right is taken away by the legislature, as it has in a measure by the 99th section of the Division Courts Act (Sinclair's D. C. Act, 128) and these sections, its extent can only be measured by the exact language to bi found in the Statutory enactment. As remarked by Draper, C. J., in the oft-quoted case of Kra^'mer v. Gless, 10 C. P. at page 475 : " It is against principle and arthority to infringe any furtiier than is necessary for obtaining the full measure of relief or benefit the Act was intended to give." See also Carlisle v. Tait, 7 App. It. p. 31 ; Horner v. Kerr, 6 App. K. p. .^-1. The evidence must be taken and returned, aud may be UBed in the same manner as under section 18. la cases where the attendance of the witness clearly could not be procured, as through age, infirmity, accident or otherwise, an application could be made under this section prow 'rferf the witness resided in a remote part of the Province and at a great distance from the place of trial. A reasonably strouf; case should be made out to warrant the Judge in making this order. As will be observed by the 2nd sub-section the person appointed to take the evidence is thereby given authority to administer the oath to the person examined under this section. 8e(^ IV).] DIVISION COURTS AMF.NDMENT ACT, 188(1 71 20. Any defendant who iias filed a notice ofwithdraw- defeiK^e in any action may, by noti(;e in writing to defence. tlie Clerk, at least six days before the sittings at which the same may be tried, withdraw such defence, and consent that judgment be entered against him for any amount, and the Clerk shall immediat(;ly notify the plaintiff thereof by mail, and thereupon the plaintiff shall lie entitled to have judgment entered by the Clerk as by default for such amount, and the costs necessarily incur- red. Provision is here mede for withdrawal of a defence. If a defence has been fraudulently entered for the mere purpeose of gaining time, the defendant having no defence to the action, the plaintiff may in cases on special summons obtain judgment under the 4th section of the Division Courts Amendment Act of 1885— Sinclair's D. C. Law, ISS.*;, pages 78-l.SO. But this is the first Statutory provision which has been made for the with- drawal of a defence. It will be observed that notice in writimi may be given to the Clerk of the Court "at least six days" before the sittings at which tlie cause is to be tried, withdrawing the defence. —Sinclair's I), C. Law, 1885, pages 17, 197. This time is to be reckoned as clear days, excluding the day of giving the notice and the day of the sittings. For instance, a notice given on the Ist of any month for the 7th of the sp.me month would be one day too late. 11. v. The Justices of Shropshire, 8 A. & E. 173 ; Mitchell v. Foster, 9 Dowl. 527 ; Ji. v, Ahfrdare Canal Co , 11 Q. 13. 854 ; R. v. Justices of Middlesex, 9 Jur. 768; Sinclair's D. C. Law, 1885, pages 108, 109, and if the last day should fall on a Sunday f would be reckoned as one of tlie six days : Sinclair's D. C. Law, 1885. page 21, and cases there cited. Tlu> withdrawal of defence and consent to judgment may be in these words: (Court and Cause.) A B , Plaintiff, V. C D- Defendaut. I hereby withdraw my defence to this action entered herein, and con- 72 DIVISION COITUTS AMENOMENT ACT, 1886. [SeC. 19 -K."* sent that judgment may be entered against me for the full amount of the plaintiff's claim, (or for such lesser amount as the case may be.) Dated, &c. D- Defendant. To E F , Clerk of the Court. On receipt of this notice by the Clerk of the Court he should forthwith notify the plaintiff by mail : Sinclair's D. C. Law, 1885, pages 1!) and 20, Upon the Clerk's mailing this notice to the plaintiff the latter would be entitled to have judgment entered by the Clerk, as by default for the amount admitted to be due, together with tlie costs necessarily incurred. If a lesser sum than the amount claimed by the plaintiff is admitted by the defendant, the plaintiff must determine whether he will accept judg- ment for that sum or proceed to recover a greater sum at the sittings. If he consents to accept the amount admitted he could not afterwards recover any further sum which he had claimed, unless the terms of the con- sent did not preclude him from doing so. Should the defendant dispute part only of the plaintiff's claim (Sinclair's D. C. Act, 100) his withdrawal of defence under this section and consent to judgment would apparently entitle the plaintiff to judgment for the full amount claimed and costs. [Seo. 19 Sw. 2].] DIVISION COUIITS AMENDMENT ACT, 1886. 73 pU amount of lay be.) Defendant. ould forthwith |pes 1!) and 20. ter would be fault for the [arily incurred. s admitted by accept judg. the sittings, lot afterwards ■ras of the con- it dispute part lis withdrawal luld apparently aed and costs. •21. The following? provisions shall nn|)ly to and v.i.iiuK • iHirtii's (ie in vcspet^t of any a(;tion brouj?ht in a Division 'e"'''"'t8. Court ; 1. The Jud^e may, at any time after action commenced, upon the application of either party, and upon sudi terms as may appear to him to be Just, order that the name of any party wlio oug-lit to liave been joined in the a(;tion as a defendant shall be added as a paxty def en riant. •J. If it shall appear to the Judge, eitlier before or at the trial of any action, that any party ought to be added as a party defendant in order tliat the Court may settle all rights and questions invol- ved in the a(;tion, the Judge may order su(;h person to be added accordingly. 8. Every person wliose name is so added as a service on defendant sh.all be served witli a ('opy of the writ added." of summons, the original summons being first properly amended, and the prcx^eedings against any such added defendant shall be deemed to have been commenced from the date of the order making him a party def end.int ; but if the applica- tion to add a defendant be made at the trial, tlie Judge may make the order in a summary manner, and may dispense with the service of a (-opy of the summons upon such defendant, if sucli defendant or his solicitor consent thereto, upon sui-li terms as to costs or an adjournment of the trial, as to the Judge shall appear just. 4. Any two or more persons chiiming, or being [J^Jt^^g^';" liable as co-partners may sue, or be sued in the J ;li'H>iiJiii|ii««iPlitM—||««iM— 74 DIVISJON COIHII'S AMKNDMKN'I' ACT, IHHd. IScr. '2]. iiit:: ■ ^'« .. I •■■ It ."•• «:; itly s '■••«, ••■'♦l.l» 9C: iiamc of tlu^ r('S|){'(tiv(5 firms, if niiy ; whern part- ners am sued ill tli(^ naiiK! of their firm, the sum- mons may l)e served on one or mon^ of the partners and sn)),ie(;t to the provisions in tlic; next two nvo tions (;()iitaint!d, siicli service; sliafl be deeimul ^ood service u[)on the firm : but tlie aflidavit of th(^ sm'viee of the summons sliall states the name of the partner served. Any thirty may, at any time be- t'onior atter Judi^iiKMit. apply to tlie Judi^e for an order direetinu- a stat(^ment to l)e furnislied of tlie names of all the persons who are eo-iiartners in any firm which is a party to the action by the firm named. Kxeoution 5. Where a judgment is ai^ainst partn«n's in the .partnorB. name of the firm, execution may issue in the man- ner followinu' :— (a) Af>ainst any t»-()ods of tlui partners. (/>) Aj^'ainst the i^oods of any pcu'son who has admitted inthe notices of disput(M)r defenc(^ filed that he is or who lias been adjudgt'd a partner. (c) Against any person who ha been served as a partner with a coi)y of the sunnnons and who has failed to appear. AddiDB 6. Upon the trial of an action against a, firm, if defendant tlie plamtifi IS desu'ous ot obtaining a judgment against the individual partners, other than tlu^ one served with a (;opy of tlie summons, and in addition to his judgment against the firm, he may i)ro('ure the addition of the; remaining [partners as dc^f (Ai- dants under sub-sections 1 and 3 of this section and thereafter proceed to judgment against them in the action as in other cases. Before this provision was made there appeared to be no power in cases Se(r. 'il.l DIVTSION COUllTS AMflNDMKNT ACT, \m\. in the Division Court to add a party ilcfendant: fiinclairV I>. C. Act 2(i3 ; lliiilditin (iiiil Lotin /Ixs. v. I[riiiiroil, 10 \,. .1. N. S. '251 ; llaihi'r \. Hiiigham, 20 L. J. N. 8. (5"). Now, if tlie Jmlgi* ooiisiderH tliat it is nccesflary for tlie purpose of HnitliiiR nil ri>,ditR and (jiieKtions involved in tlio action that any person or jiersonH (U. S. ()., clia))ter 1. section H, hiiI). section '23), shonld be added as defendant or defoiulaiits, it is his imperative duty to make all necessary amondiiients for the puriwse : Sinclair's I). (J. Law, 1884, pa(,'es (!5()8. The summons should first he projjerly amended if tlie application is made before the trial, and sucli application allowed. In such case the summons must be served on the added defendant and lie would have the same rights of defence and time therefor that he would have had if the action had been commenced against him on tlie day the Judge's order adding him as a defendant was made. Should tliere be no application made before the trial, but the order was applied for at the tiial, the Judge could make the order in a sunnnary manner and dispense with service of the summons on the defendant so added, provided he or his solicitor should consent thereto. Tlie costs of amendment and postponement of the trial are left in the discretion of tiie Judge. A defondiuit could not properly be added on an ^z paWe application : TiUh'f ley \. Harper, 'A C\\. ]\ 277. An administrator or oxocutcu- of one of several defendants could be added : A^hlcii v. Taylor, 10 Ch. U. 7(1S. The object of the Statute is that " all rights and questions involved in the action should be settled." Another important provision is made in this section in respect to the rights of action for and against partners as such. This provision has been taken from Rule 13 of the English County Court Rules of 1886. Under sub-section 4 of tliis section partners may sue or be sued in their firm name. It is not imperative on a plaintilf, but permissive to sue a partner- ship in the name of the firm. T'liere are reasons why in many cases it may not be advisable for a plaintilY to do so. He may not wish to pursue the remedies against a partnership tliat tlie law points out. He may prefer to proceed against them individually as defendants as before : Sinclair's D. C. Law, 1885, page 5'2. It will be observed that where partners are sued in the name of their firm the summons may be served on one or more of the partners, following 0. J. Act, Rules 40 and 3l(i, It is declared that such shall be deemed good service on the firm, subject to the provisions of tlio next two sections. The allidavit of service of summons must state the name of the partner or partners served. Provision is here made that any party to the cause may at any time either before or after judgment, apply for and obtain an order for a statement to be furnished of all the persons who are co-partners in any firm which is a party either as plaiutilT or defendant to the action by the firm named. It is sulimitted that notwithstanding Pullfx/cii v. Silmoti, 16 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I >tt Uii 12.2 It? Itt ■— :^ 1^ 12.0 us I m 1 L25||,.4,,.6 < 6" ^ HiotDgraphic Sdences Corporation 33 WBT MAIN STRHT WnSTIR,N.Y. t45M (714) •73-4903 / ;\ 3* :V 76 DIVISION COURtS AMENDMENT ACT, 1886. [SeC. 21. I'" I' i •9>mpm (j. B. D. 7if2, a member of a foreign firm could not be served in this Province so ps to bind the firm under this section : Sinclair's D. 0. Law, 1884, pag? V A firL-. ii' 't.ih cannot be garnished. The attachment of the debt should be agai^ • ' « individual member? of the firm : Walker v. Rooke, 6 y. ii. D. 6"1. The 5th ■'< -se'tion provides how execution may issue on a judg- ment against pxrtuers ia the name of the firm. It has evidently been taken from the EngiisL tar in with paoki v^ ; such in. A workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases, tliat is to say : 1. Under sub-section 1 of section 3, unless the defect therein men- tioned arose from or had not been discovered or remedied owing to the negligence of the employer or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition. 2. Under sub-section 4 of section 8, unless the injury resulted from some impropriety or defect in the rules, by-laws, or instructions therein mentioned ; provided, that where a rcle or by-law has been approved, or has been accepted as a proper rule or by-law, either by the Lieutenant- Governor in Council, or under and pursuant to any provision in that behalf of any Act of the Legislature of Ontario, or of the Parliament of Canada, it shall not be deemed for the purposes of this Act to be an improper or defective rule or by-law. 3. In any case where the workman knew of the defect or neghgenoe which caused his injury, and failed within a reasonable time to give or cause to be given information thereof to the employer or some person superior to himself in the service of the employer, unless ha was aware that the employer or such superior already knew of the said defect or negligence. 6. The amount of compensation recoverable under this Act shall not exceed such sum as may be found to be equivalent to the estimated earn- ings, during the three years preceding the injury of a person in the same grade employed during those years in the like employment within this Province : and such compensation shall not be subject to any deduction or abatement by reason, or on account, or in respect of any matter or thing whatsoever, save such as is specially provided for in section 9 of this Act." 7 An action for the recovery under this Act of compensation for an injury shall not be maintainable uulest ' otice that injury has been sustained is given within twelve weeks, and the action is commenced within six months from the occurrence of the accident causing the injury, or in case of Kxooptiona i.,1 preoe- (liuR 1 ro- ViBiOUH. Limit of amount of compensa- tion. Limit of time for recovery of compensa- tion. 88 COMPENSATION TO WORKMEN. •ii&ft Contract constitute a defence to action for com- pensation death within twelve months from the time of death ; provided always that in case of death the want of such notice shall be no bar to the mainte- nance of uuch action, if the judge shall be of opinion that there was reasonable excuse for such want of notice. 8. No contract or agreement made or entered into by a wor'iman shall man^not to ^° ^ ^^^ °^ constitute any defence to an action for the recovery under this Act of compensation for any injury. 1. Unless for such workman entering into or making such contract or agreement there was other consideration than vhat of his being taken into or continued in the employment of the defendant ; nor 2. Unless such other consideration was in the opinion of the court or judge before whom such action is tried, ample and adequate ; nor 3. UnleBB, in the opinion of said court or judge, such contract or agreement, in view of such other consideration was not on 'the part of the workman, improvident, but was just and reasonable ; and the burthen of proof in respect of such other consideration, and of the same being ample and adequate, as aforesaid, and that said contract was just and reasonable and was not improvident as aforesaid, shall, in all oases, rest upon the defendant ; provided always that notwithstanding any- thing in this section contained, no contract or agreement whatsoever made or entered into by a workman shall be a bar or constitute any defence to an action for the recovery under this Act of compensation for any {•xjury happening or caused by reason of any of the matters mentioned in section 4 of this Act, Money pay- 9- There shall be dtdnoted from any compensation awarded to any penalty to workman or representatives of a workman, or persons claiming by, under, >e deduct- ^^ through a workman in respect of any cause of action arising under this Act, any penalty or damages, or part of a penalty or damages which may in pursuance of any other Act, either of the Parliament of Canada, or of the Legislature of Ontario, have been paid to such workman, representatives or persons in respect of the same cause of action ; and where an action has been brought under this Act by any workman, or the representatives 'of any workman, or any persons claiming by, under, or through such workman, for compensation in respect of any cause of action arising under this Act, and payment has not previously been made of any penalty or damages, or part of a penalty or damages under any such Act, either of the said Parliament, or of the said Legislature, in respect of the same cause of action, such workman, representatives or persons shall ed from compensS' tion. I' COMPENSATION TO WORKMEN. 89 not, 80 far as the said Legislature has power so to enact, be entitled there- after to receive in respect of the same cause of action, any such penalty or damages, or part of a penalty or damages, under any such last-mentioned Act. 10. — (1) Notice in respect of an injury under this Act shall give the Form and BBlTViCB of name and address of the person injured, and shall state in ordinary notice of language the cause of the injury and the date at which it was sustained, ^^^' and shall be served on the employer, or if there is more than one employer, upon one of such employers. > (2) The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. (3) The notice may also be served by post, by a registered letter ad- dressed to the person on whom it is to be served at his last known place af residence or placa of business, and if served by post shall be deemed to have been served at the time when a letter containing the same would be delivered in the ordinary course of post, and in proving the service of such notice it shall be sufficient to prove that the notice was propcWy addressed and registered. 1 4) Where the employer is a body of persons corporate or uninoorporate the notice shall be served by delivering the same at or by sending it by post in a registered letter addressed to the office, or if there be more than one office, any one of the offices of such body. (5) A notice under this section shall not be deemed invalid by reason of any defect or inaccuracy therein, unless the Judge who tries the action arising from the injury m<)ntioned in the notice shall be of opinion that the defendant in the action is prejudiced in his defence by such defect or inac- curacy, and that the defect or inaccuracy was for the purpose of misleading. (6) A notice under this section shall be deemed sufficient if in the form or to the e£Feot following:— To A. B., of (here insert employer's address) or To the Company, (or aa the case may be.) Take notice, that on the day of 188 C. D., of (t«Mer( address of itijured person) a workman in your employment sustained personal injury, (add, of which he died, if such be the case,) and that such injury was caused by (statt shortly thecause of injury i.g., the fall of a beam) (Date.) Yours, etc., X. Y. 11. In any action b^-ought under this Act the particulars of demand or Particulars statement of claim shall state in ordinary language the cause of the injury, ' and the date at which it was sustained, and the amount of compensation claimed ; and where the action is brought by more than one plaintiff, the amount of compensation claimed by each plainti£F, and where the injury of L of demand. 90 COMPENSATION TO WORKMEN. Appoint- ment of ABsesBors. «:»: 3iS9i which the plaiuti£F complains shall have arisen by reason of the negUgenoe, act, or omission of any person in the service of the defendant, the particulars shall give the name and description of such person. 12. — (1) Upon the trial of any action for recovery of compensation under this Act before a Judge without a jury, one or more assessors may be appointed by the Court or Judge for the purpose of ascertaining the amount of compensation, and the remuneration (if any) to be paid to such assessors shall be fixed and determined by the Judge at the trial. (2) Any person who shall, as hereinafter provided, be appointed to act as an assessor in such action, shall be qualified so to act. (3) In any such action, a party who desires assessors to be appointed shall, ten clear days at least before the day for holding the Court at which the action is to be tried, file an appUcation stating tho number of assessors he proposes to be appointed, and the name, addresses and occupations of the persons who may have expressed their willingness in writing to act as assessors. If the applicant has obtained the consent of the other party to the persons named being appointed, he shall file such consent with his application. (4) Where the application for the appointment of assessors has been made by o^e party to an action only, he shall, eight clear days at least before the day for holding the Court at which the action 18 to be tried, serve a copy of the application, so filed, upon the other party, who may then either file an application for assessors, or fifS objections to one or more of the persons proposed. (5) An apphoation for the appointment of assessors may be in the form following, oi' to the like effect, namely :— In the {describing tlie Court) "The Workmen's Compensation for Injuries Act, 1886." Between, Plaintiflf, Defendant. The plaintiff (or defendant) applies to have an assessor {or asBessors) ap- pointed to assist the Court in asoertaining the amount of compensation to be awarded to the plaintiff, should the judgment be in bis favour, and he submits the names of the following persons, who have expressed their willingness in writing to act as assessors should they be appointed. (Here set out the names, addresses and occupations of the persons above referred to.) (If the otlier party consetits to the appointment add ths following) :— The defendant (or plaintiff) consents to the appointment of any of the persons above named to act as assessors in this action, as appears by his consent thereto filed herewith. Dated this day of A. B. The above named plaintiff, (or a« the case may be.) COMPENSATION TO WORKMEN. 91 (6) Wliere separate applications are filed by the parties, no objection to the persons proposed shall be made by either party, but the Court or Judge may appoint from the persons named in each application one or more assessor or assessors, provided that the same number of assessors be appointed from the names given in such appUcations respectively. (7) In any such action brought in a Division Court the applications for the appointment of assessors, together rith any objections made to the persons proposed, shall be forwarded by the Clerk of the Court to the Judge. (8) Where application for the appointment of assessors is granted, the Court or Judge shall appoint such of the persons proposed for assessors as by the Court or Judge may be deemed fit, subject to the provisions con- tained in this Act. (9) In any such action where an application for the appointment of assessors has been filed, the Court or Judge may, at any time prior to the trial thereof, nominate one or more additional persons to act as assessors in the action. Where no application for assessors has been made, the Court or Judge may appoint any one or more persons to act as assessor or assessors in the action before or on the trial of the action. (10) If at the time and place appointed for the trial all or any of the assessors appointed shall not attend, the Court or Judge may either proceed to try the action with the assistanee of such of the assessors, if any, as shall attend, or may adjourn the trial generally, or upon any terms which the Court or Judge may think fit, or may appoint any person who may be avail- able and who is willing to act, and who is not objected to oi who, if objected to is objected to on some insufficient ground, or the Court or Judge may try the action without assessors. (11) Every person requiring the Court or Judge to be assisted by assessors shall at the time of filing his application deposit therewith the sum of $i for each assessor proposed, and such payments :jhall be con- sidered as costs in the action, unless otherwise ordered by the Court or Judge : Provided, that where a person proposed as an assessor shall have in writing agreed and consented that he will not require his remuneration to be BO deposited, no deposit in respect to such person fihall be required. (12) Where an action shall be tried by the Court or Judge with the assistance of any assessors in addition to or independently of any assessors proposed by the parties, the remuneration of such assessors shall be borne by the parties, or either of them, as the Judge or Court shall direct. (13) If after an assesser has been appointed the action shall not be tried, the Court or o udge shall have power to make an allowance to him in 92 COMPENSATION TO WORKMEN. OonBolida- tion of actiouB. respect of any expense or trouble which he may have inonrred by reason of his appointment, and direct the payment to be made out of any sum deposited for his remuneration. ( 14) The assessors shall sit with and assist the Coni't or Judge when required with th'^ir opinion and special knowledge for the purpose of ascer- taining the amount of compensation, if any, which the plaintiff shall be entitled to recover. 13. — (1) Where several actions shall be brought under this Act against a defendant in the same Court in respect of the same negligence, act or omission, the defendant shall be at liberty to apply to the Judge that the said actions shall be consolidated. (2) Applications for consolidation of actions shall be made upon notice to the plaintiffs affected by such consolidation. (3) In case several actions shall be brought under this Act against a defendant in the same Court in respect of the same nef(ligence, act or omission, the defendant may, on filing an undertaking to be bound so far as his Uability for such negligence, act or omission is concerned by the decision in such one of the said actions as may be selected by the Court or Judge, apply to the Court or Judge for an order to stay the proceedings in the actions other than in the one so selected, until judgment is given in such selected action. (4) Applications for stay of proceedings shall be made upon notice to the plaintiffs affected by stay of proceedings or ex parte. (5) Upon the hearing of any application for consolidation of actions or for stay of proceedings, the Court or Judge shall have power to impose such terms and conditions and make such order in the matter as may be just. (6) If any order shall be made by a Court or Judge upon an ex parte application to stay proceedings, it shall be competent to the plaintiffs affected by such order to apply to the Court or Judge (as the case may be) upon notice or ex parte, to vary or discharge the order so made, and upon such last-mentioned application such order shall be made as the Court or Judge shall think fit, and the Court or Judge shall have power to dispose of the costs occasioned by such order or orders as may be deemed right. (7) In case a verdict in the selected action shall be given against the defendant, the plaintiffs in the actions stayed shall be at liberty to proceed for the purpose of ascertaining and recovering their damages and costs. (8) A defendant may by notice to the opposite party to be given or served at least six days before the day appointed for the trial of action, admit the truth of any statement of his liability for any alleged negligence. COMPENSATION TO WOBKMEN. 93 act or omission as set forth or contained in the plaintiff's statement or particulars of claim in the action, and after such notice given the plaintiff shall not be allowed any expense thereafter incurred for the purpose of proving the matters so admitted. (9) Where two or more persons are joined as plaintiffs under sub- section 1 of this section, and negligence, act or omission which is the cause of action shall be proved, the judgment shall be for all the plaintiffs, but the amount of compensation, if any, that each plaintiff is entitled to shall be separately found and set forth in the judgment, and the amount of costs awarded in the action shall be ordered to be paid to such person, and in such manner as the Court or Judge may think fit ; should the defendant fail to pay the several amounts of compensation and the costs awarded in the action, execution may issue as in an ordinary action, and should the proceeds of the execution be insufficient, after deducting all costs, to pay the whole of the amounts awarded, a dividend shall be paid to each plaintiff, calculated upon the proportion of the amount which shall have been awarded to the respective plaintiffs to the total amount realized after the deduction of all the costs of the action as aforesaid. 14. Where the time for doing any act, taking any proceeding, or giving computa- any notice under or required by this Act expires on a Sunday such act, or time." proceeding, or notice shall, so far as regards the time of doing, taking or giving the same, be held to be duly and sufficiently done, taken or given, if done, taken or given, on the day next following such Sunday. 16. In any action brought in any Court to recover compensation Forma and under this Act, the forms and methods, and the rules and orders in force "^ in Court shall, subject to and save as otherwise provided by the terms and provisions of this Act, apply to and regulate all matters of pleading, practice and procedure in such action, and notwithstanding anything in this Act contained, the forms and method, and the pleadings, practice and procedure in any such action shall conform to and be regulated by any rules or orders in that behalf hereafter lawfully and duly made or prescribed with respect to actions brought in any such Court. 16. This Act shall not come into operation until the first day of July Com- next, after the passing hereof which date is in this Act referred to as the ment^of commencement of this Act. *"*■ 17. Whereas certain railway companies, some of which carry onApplica- operations partly within the Province and partly without, have, in acoor- limited, dance with the provisions of certain Act-^ of the Parliament of Canada, established insurance and provident societies or associations to provide and secure, in cases of sickness, accident or death, aid to such of the u COMPENSATION TO WORKMEN. Jfiiml employees of the companies as are members of such societies or associa- tions ; and whereas it is desirable that nothing in this Act contained should have the effect of impairing the advantages derivable from any such aHsociation, or of making its operations less beneficial to the workmen employed by such companies ; and whereas with a view to enactment of any safe and proper provisions which may be necessary in the premises, it is desirable that time should be afforded for further and more compk'ie inquiry in that behalf: Therefore, it is hereby enacted that, where a y railway company or employer has, in accordance with the provisions of any Act of the Parliament of Canada, or otherwise, established an insurance and provident society or association, of which at least two-thirds of the employees of said company t r employer shall have become members, and which society or association, shall provide for its members aid in case of sickness, accident or death, to at least the extent and amount provided and secured in that respect by the insurance and provident society or association now established by the Orand Trunk Railway Company, of Canada, in accordance with the provisions of certain Acts of the Parlia- ment of Canada, then and in every such case this Act shall not, until after the lapse of one year from and after the commencement thereof, apply to any such railway company or employer: provided, however, that notwith- standing anything in this section contained, this Act shall be held to apply to every such railway company and employer in respect of auy personal injury caused to a workman by reason of any of the mriter, mentioned in section 4 of this Act, and in respect of any action tru ii > recovery of compensation for any such last mentioned injury. LANDLORDS AND TENANTS. 95 AN ACT RESPECTING LANDLORDS AND TENANTS AND DISTRESS. 49 Victoria, Chay 29 {Ontario.) {Atienled to the 25th March, 1886.] Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. In every demise hereafter made or entered into, whether by parol or in writing, unless it shall be otherwise agreed, there shall be deemed to be included an agreement that if the rent reserved, or any part thereof, shall remain unpaid for fifteen days after any of the days on which the same ought to have been paid, although no formal demand shall have been made thereof, it shall be lawful for the landlord, at any time thereafter into and upon the demised premises, or any part thereof, in the name of the whole to re-enter and the same to have again, repossess, and enjoy as of his former estate. 2. Where any person being under the age of twenty -one years, or a lunatic, or person of unsound mind, shall be seized u' the reversion of land subject to a lease, and such lease shall contain a covenant not to assign or sublet without leave, the guardian of such infant, or the committee of such lunatic, or person of unsound mind may, with the approbation of the Judge of the Surrogate Court of the county in which the land is situate, consent to any assignment or transfer of such leasehold interest, in the same manner and with the like effect as if the consent were given by a lessor under no disability. 8. The right of a mortgagee to distrain for interest in arrear upon a mortgage, shall be limited to the goods and chattels of the mortgagor, and as to such goods and chattels, to such only as are not exempt from seizure under execution. This section shall not apply to existing mortgages. Kight of re-entry. Aasign- ments by persoiiB under dis- ability. Bight of mortgagee to distrain limited. 96 PKOTECTION OF GAME. AN ACT TO FURTHER AMEND THE LAW FOR THE PROTECT- ION OF GAME AND FUR-BEARING ANIMALS. 49 Victoria, Chapter 45 (Ontario.) [Assented to 25th March, 1886.] I'reiiuiblo. 43 V. c. 31, repealed. Close period Deer, etc. Orouse.elc. Qoail and wild tur- keys. Woodcock. Bnipe, rail and plover. Swans and geese. Ducks and other water fowl. Hares. PosHession, how far lawful. Exposure for sale. Whereas it is expedient to amend the law respecting the preservation of game n'ld fur-bearing animals in Ontario ; Therefore Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. The Act passed in the 43rd year of Her Majesty's reign, and chaptered 31, is hereby repealed. 2. None of the animals or birds hereinafter mentioned, shall be hunted, taken or killed, within the periods hereinafter limited ; 1. Deer, elk, moose, reindeer or caribou, between the fifteenth day of December and the fifteenth day of October ; 2. Grouse, pheasants, prairie fowl or partridge, between the first day of January and the first day of September ; 3. No quail shall be hunted, taken, or killed, during the years 1886, 1887. and no wild turkeys during the years 1886, 1887,- 1888, and in each case thereafter not between the fifteenth day of December and the fifteenth day of October following. 4. Woodcock, between the first day of January and the fifteenth day of August ; 6. Snipe, rail and golden plover, between the first day of January and the first day of September ; 6. Swans or geese, between the first day of May and the first day of September ; 7. Ducks of all kinds, and all other water fowl, between the first day of January and the first day of September ; 8. Hares, between the fifteenth day of March and the first day of September. 3. No person shall have in his possession, any of the said animals or birds, no matter where procured, or any part or portion of any such animals or birds, during the periods in which they are so protected ; provided that they may be exposed for sale for fifteen days, and no longer, after such periods, and may be had in possession for the private use of the owner and his family at any time, but in all cases the proof of the time of killing, taking or purchasing, shall be on the person so in possession. PROTECTION OF GAME. 97 4. No eggs of any of the birds above mentioned shall be taken, liestroyed, or had in possession by any person at any time. 5. None of the said animals or birds, except the animals mentioned in section 7 of this A .t, shall be trapped, or taken by means of traps, nets, snares, gins, baited lines, or other similar contrivances ; nor shall such traps, nets, snares, gins, baited lines or contrivances, be set for them, or any of them, at any time ; and such traps, nets, snares, gins, baited lines, or contrivances, may be destroyed by any person without such person thereby incurring any liability thereof. 6. None of the contrivances for taking or killing the wild fowl, known as swans, geese or ducks, which are described or known as batteries, swivel guns, sunken punts, shall be used at any time, and no wild fowl, known as ducks, or other water fowl, except geese or swan shall be hunted, taken or killed, between the expiration of the hour next after sunset and the com- mencement of the hour next before sunrise. 7. No beaver, mink, muskrat, sable, martin, otter, or fisher, shall be hunted, taken or killed, or had in possession of any person between the first day of May, and the first day of November ; nor shall any traps, snares, gins, or other contrivances, be set for them during such period ; nor shall any muskrat house be out, speared, broken or destroyed, at any time ; and any such traps, snares, gins, or other contrivances so set, may be destroyed by any person without such person thereby incurring any Uability therefor : provided that this section shall not apply to any person destroying any of the said animals in defence or preservation of his property. 8. Offences against this Act shall be punished upon su' umary conviction on information or complaint before a justice of the peace, as follows : (a) In case of deer, elk, moose, reindeer or caribou, by a fine not exceeding $60, nor less than $10, with costs, for each offence ; (6) In case of birds or eggs, by a fine not exceeding 925, nor less than $5, with costs, for each bird or egg ; (c) In case of fur- bearing animals, mentioned in section 7 of this Act, by a fine not exceeding $25, nor less than $5, with costs, for each offence ; {d) In the case of other breaches of this Act, by a fine not exceeding $25, nor less than $5, with costs. 9. The whole of such fine shall be paid to the prosecutor unless the convicting justice has reason to believe that the prosecution is in collusion with, and for the purpose of benefiting the accused, in which case the said justice may order the disposal of the fine as in ordinary cases. 10. In all cases confiscation of game shall follow conviction, and the Proteotiou of egRi. TrappuiR forbladeu Batteries, etc., for taking wild fowl for- bidden,and night hunt- ing forbid- den. Fur-bear- ing ani- mals pro- tected. Proviso. Penalties. Disposi- tion of pen- alties. ContlBoa- tion of game. 98 PROTECTION OF (JAME. «St Protection of ({ame preserves. V-e of poison prohibited. Deer.game, etc., not to be Icilled for export. Hounds not to run at large. Appoint- ment of same inspectors. Duties of Inspector. Seizure of game. Prosecu- tions. game bo oonHsoated, shall be given to aome oharitable institution or purpose, at the discretion of the convicting justice. 11. In order to encourage persons who have heretofore i- sported or hereafter import different kinds of game, with the desire to breed and preserve the same on their own lands, it is enacted that it shall not be lawful to hunt, shoot, kill or destroy any such game without the consent of the owner of the property wherever the same may be bred. 12. It shall not be lawful for any person to kill or take, any animal protected by this Act, by the use of poison or poisonous Bubstanoes, nor to expose poison, poisoned bait or other poisoned substances, in any place or locality, where dogs or cattle may have access to the same. 13. — (1) No person shall at any time hunt, take or kill, any deer, elk, moose, reindeer, or caribou, for the purpose of exporting the same out of Ontario, and in all oases the onus of proving that any such deer, elk, moose, reindeer or caribou, as aforesaid, so hunted, taken or killed, is not intended to be exported as aforesaid, shall be upon the person hunting, killing, or taking the same, or in whose possession or custody the same may be found. (2) Offences against this section, shall be punished by a fine not exceeding 926, nor less than $5 for each animal. 14. No owner of any hound, or other dog known by the owner to be accustomed to pursue deer, shall permit any such hound, or other dog, to run at large in any locality where deer are usually found, during the period, from the fifteenth day of November, to the fifteenth day of October, under a penalty on conviction, of not more than $25, nor less than S6, for each offence ; any person harbouring or claiming to be the owner of any such hound or dog shall be deemed the owner thereof. 15. It shall be lawful for the council of any county, citj , town, town- ship, or incorporated village, to appoint an ofScer who shall be known as the game Inspector for such county, city, town, township or incorporated village, and who shall perform such duties in enforcing the provisions of this Act, and be paid such salary, as may be mutually agreed upon. 16. — (1) It shall be the duty of every such game Inspector appointed as aforesaid, forthwith to seize all animals or portions of animals in the pos- session of any person contrary to the provisions of this Act, and to bring the person in possession of the same before a justice of the peace, to answer for such illegal possession. (2) It shall also be the duty of every such game Inspector, to institute prosecutions against all persons found infringing the provisions of this Act, or any of them, and every such Inspector may cause to be opened, or may himself open in case of refusal, any bag, parcel, chest, box, trunk, or recep- PROTECTION OF GAME. 99 taole in wbiob he has reason to believe that game killed or taken during searob fur the close season, or peltries out of season, nre hidden. same. (H) Every such Inspector, if he has reason to suspect, and does suspect that game killed or taken during the close season, or peltries out of season, are contained or kept in any private house, shed, or other building, shall make a deposition in the Form A annexed to this Act, and demand a search warrant to search such store, private house, shed, or other building, and thereupon such justice of the peace may issue a search warrant according to Form B. 17. This Act shall come into effect on and after the first day of July Corn- next after the passing thereof. ment o'{ FORM A. Act. I, undersigned game Inspector for do hereby declare that I have reason to Buspeot, and do suspect, that game killed or taken during the close season, or furs out of season, etc., etc., {aa the case may be) are at present held and concealed, (describe the property, occupant, etc., and the place). Wherefore I pray that a warrant may be granted and given to me to effect the necessary aearohoB (describe here the property, etc., a» above). Sworn before me at this day of A. D. 18 L. B. J. p. X. Y. Game Inspector. FORM B. Vrovinoe of Ontario, ) County of s To each and every the constables of County of Whereas, Oame Inspector for has this day declared tinder oath before me, the undersigned, that be has reason to suspect that (game, or birds killed or taken during the close season, or fiurs out of season, etc., (as the case may be) are at present held and concealed, {describe property, occupant, place, etc.) Therefore, you are commanded by these presems in the name of Her Majesty, to assist the said Oame Inspector, and to diligently help him to make the necessary searches to And the (slate the birds or game killed or taken during the close season, or furs out of season, etc.,) which he has reason to suspect and does suspect to be held and concealed in (describe tlie property, etc., as above) and to deliver, if need there be, the said birds, etc. , (03 the case may be) to the said Oame Inspector, to be by him brought before me or before any other magistrate to be dealt with according to law. Given under my band and seal at County of this day of A. D. 18 Ii.8. L. B J. P. m 100 FORMS OF SUMMONS ON (iAKNISHMENT. SUMMONS TO PRIMARY DEBTOR (BEFORE JUDGMENT) AND 0ARN1SHEE. No. [8«al.l A. D.,18 . In the DiviRion Court in the Gountj of Brtwgkn a. B., Primary Creditor, and CD., Primary Debtor, and E. F., GamiBhee. The Primary Creditor claims from tlie Primary Debtor the amount of the annexed aoooant: {Oiving the Account or Claim in detail.) Yon, the above-named Primary Debtor, are hereby summoned to appear at the sittings of this Court, to be held at on the day of , A. D., 18 , {or at on the day of A. D., 18 , before the Judge then and there prending), to answer the Primary Creditor, who sues you for the recovery of the annexed claim. And you, the Garnishee, are required to appear at the same time and place to state and shew whether or not you owe any and what debt to the Primary Debtor, and why you should not pay the same into Court to the extent of the Primary Creditor's claim, in satisfaction thereof : and take notice, that if any or either of you decire to set up any Statutory or other defence, or any set-off, or to admit the liability of any or either of you, in whole or in part, for the amount claimed in this action, you shall file with the Clerk of this Court the particulars of such defence or set-o£F, or any admission of the amount due or owing by any or either of you, ..iii'^ii eight days after service on yon respectively of this Summons. > You and all others interested may also shew any other cause why the debt owing from the Garnishee should not be paid and applied to satisfy the said claim of the Primary Creditor. Dated the day of A. D., 18 . X. Y., Clerk. WARNING TO GARNISHEE AND PRIMARY DEBTOR. To the above-named Garnishee and the Primary Debtor : You, the said Garnishee, are here>*, n./tified, that from and after the time of the service of this Sumr-.oi^ on you, all debts due or accruing due from you to the above-namuu Primary Debtor are attached, and if FOKMH OP SUMMONS ON (iARNlHHMENT. 101 you pay tlie same to any one other than to the peraon holding the proper order to receive the same, or into Court, you will be liable to repay it, in case the Court or Judge so order. And you, the said Primary Debtor and Oarnishee,, are hereby notirled that if any or either of you desire to set up any Statutory or other defence, or any set-otT, or to admit your or either of your liability, in whole or in part, for the amount claimed herein, you must file with the Clerk of this Court thf. particulars of such defence or set-off, or an admission of the amount due or owing by any or either of you, xoithin eiijht duy» after itervice on you respectively of this Summons, and that in the absence of notice of such defence or set-off, the Judge in his discretion may give judgment against you for the amount claimed. [.y. B. — If claim for hoard or lodping add Memorandum at page 31.] A. D. 18 , in the SUMMONS TO (GARNISHEE AND PRIMARY DEBTOR AFTER JUDGMENT, No. A. D. 18 . [Seal.] In the Division Court in the County of Between A. B., Primary Creditor, and • CD., Primary Debtor, and E. F., Garnishee. Judgment recovered on the day of Division Court in the County of Amount unsatisfied, 9 You, the above named Oarnishee and the Primary Debtor, are hereby summoned to appear at the sittings of this Court, to be held at on the day of , A. D. 18 , {or before the Judge presiding at on the day of , A. D. 18 ), at of the clock in the forenoon, to state and shew whether or not you, the said Garnishee, owe any, and what debt to the above named Primary Debtor, and why you should not pay the same into Court, to the extent due on the above named judgment, to satisfy the same ; and you, the said Primary Debtor and Gn.rnishee, are severally required to take notice, that if any or either of you desires to set up any Statutory or other defence, or any set-off, or to admit any liability of any or either of you, in whole or in part, for the 102 FORMS OF SUMMONS ON GABNISHMENT. M 5S5I, g; •moant claimed in this action, you shall file with the Clerk of this Court the particulars of such defence or set-off, or an admission of the amount due or owing, by any or either of you, within eight days after service on you respectively of this summons. Tou, or any one interested, may also shew any other cause why the said debt should not go to satisfy the said judgment. Dated the day of , A. D. 18 . X. Y. Clerk. WARNING TO GARNISHEE AND PRIMARY DEBTOR. To the above named Garnishee and the Primary Debtor : You, the said Garnishee, are hereby notified, that from and after tt.e time of the service of this Summons on you, all debts due or accruing due from yon to the above named Primary Debtor are attached, and if yon pay the same to any one other than to the person holding the proper order to receive the same, or into Court, you will be liable to repay it, in case the Court or Judge so order. And yon, the said Primary Debtor and Garnishee, are hereby notified that if any or either of yon desires to set up any Statutory or other defence, or any set-off, or to admit your or either of your liability, in whole or in part, for the amount claimed herein, you must file with the Clerk of this Court the particulars of such defence or set-off, or an admission of the amour!*, due or owing by any or either of you within eight days after service on you respectively of this Summons, and that in the ab&enoe of notice of such defence or set-off, the Judge in his discretion may give judgment against you for the amount claimed. [The change in the law in respect to Garnishment proceedings effected by the Division Courts Amendment Act, 1886, (ante parie 33), renders a change in the Forms of Oarniahment Summons, as well after as be/ore Judgment, necessary. Apart of the above Form may seem unnecessary in (he case a/a Summons after judgment, but, it is rendered necessary by the language of the 12th section of the Act just quoted. It will be observed by a r^erence to that section and the 136th section qf The Division Courts Act, that the provision as to defence and set-off, 4^0., whether properly or not, is made applicable to cases both before and after judgment. Until the Board of Judges frame netc Forms qf Summons and Warning in Oarniehment eases, the Judge has the power to prescribe Forms of such proceed- ings in his own Courts, under the 145th section of The Division Courts Act. The foregoing Forms have been prescribed in the County of Wentworth, If clatm for board or lodging add Memorandum at page 31.] QUESTIONS ON CLERKS' TARIFF. 103 At the last meeting of the Division Courts Clerks' and Bailiffs' Association at Toronto, the writer was desired by that body to express his views on certain questions to be propounded on the construction to be given to several items of The Clerks' and Bailiffs' Tariffs. Several ques- tions have been propounded. Such questions and the answers to them will be found in the following pages. Two things must be kept in view in constru- ing a Tariff ; — (1) That you cannot go beyond the reasonable import of the language employed to find the meaning to be given to any part of it ; (2) That whp" work is necessarily performed by an officer a reasonably liberal (jonstruction should be given to afford him compensation for such work. In the following answers the writer has endeavored to observe these two views. QUESTIONS AND ANSWERS ON DIFFER- ENT ITEMS OF THE CLERKS' AND BAILIFFS' TARIFFS. CLERKS' TARIFF OF FEES. (The number of the Item in the Tarifon which the Question is asked will be found noted in the margin.) 1.— In what way is the value of the goods to be item 2. ascertained to regulate the fee on issuing Sum- mons in Replevin and Interpleader ? A. -In Replevin the value of the goods will be 104 QUESTIONS ON CLERKS' TARIFF. i ':; :t)u^ determined by the amount sworn to in the Affida- vit for Judge's Order for Summons to issue. In Interpleader cases tlie Bailiff's duty is to ascertain the value of the goods seized, and on his written application for Interpleader to specify such value therein (Sinclair's D. C. Act, 215, 216, 234, 288) which will be the guide to the amount of the Clerk's fee. The law does not appear to provide for an appraisal in such cases : Sinclair's D. C. Law, 1884, 46. Item 2. 2.— Should the Clerk issue a Concurrent Sum- mons without spetjial instructions in all cases where there are two or more defendants residing in different Divisions i A.— In order to charge a plaintiff with the costs of issuing a Concurrent Summons the Clerk should have his express or implied authority for doing so. It can only be issued where there are at least two defendants residing "in different Counties," not in different Divisions merely. Rule 17 is permissive only : Sinclair's D. C. A(;t, 242. In order to charge the defendants with the costs of it a case of urgent necessity should be shewn. Item 2. 3.— When a Concurrent Summons is issued, is the Clerk entitled to charge for it as an original writ 'i A.—" Concurrent writs are in fac^t original writs describing defendants as residing in different Counties " : Har. C. L. P. Act, 25. Such being the case we think the Clerk is entitled to charge for a Concurrent Summons in addition to the first Sum- QUESTIONS ON CLERKS' TAltlFF. 105 moiiH, as ail original when lie has a right to charge for it at all. 4.— What fee, if any, is a Clerk entitled to loritem 2 adding future days of sittings of the Court to a Special Summons returned not served in time, to make the notice of the sittings of the Court at the foot of " Waniing No. 2" available for the information of the defendant i A. -No allowance is made for this service. 5. — Where a party about to enter a suit brings to item 4. the Clerk a long itemized account, say ot 30 folios, without any copy of it, is the Clerk bound to receive tlie same and enter it, and if he does so can he charge the plaintiff anything more than the sum of 20c. mentioned in item 4, for making out a copy of the claim i A.— The Clerk is not bound to receive or enter the claim without a copy of it being furnished him : Sinclair's D. C. Act, 90, 91. Should he do so and make out the copy himself, as Clerk, the above fee of 20c. is all that he could charge : Sinclair's D. C. Act, 239, 339. 6. — Where a (5ase is settled before service of the item 6, Summons, is the Clerk entitled to a fee under item 6? A.— Certainly not. 7.— Where the Bailiff is unable to find a defendant item 6. to serve with Summons, and so reports in writing on his writ to the Clerk, is that a '' return " to the Summons under item 6, entitling the Clerk to his fee? N w II ;: 106 QUESTIONS ON CLERKS' TARIFF. A.— It iy. The Bailiff and his sureties would be responsible for the correctness of the return and the Clerk should properly enter it. Item 6. 8.— Is the Clerk entitled to any fee for distributing the proceeds of attachment where there are several judgment creditors entitled to participate, and upon what principle should the distribution be made ? A.— The Clerk is not entitled to any fee in such case. The proper mode of distribution of the proceeds would be to apportion to each creditor his pro- portionate share of the fund to be distributed ac- cording to the amount of his judgment— composed of debt, interest and costs. The mode frequently adopted by Clerks of deducting the costs in all the suits, and then giving to each creditor his propor- tion of the balance is unwarranted by section 197 of the Division Courts Act : Sinclair's D. C. Act, 206, 207. Item 6. 9- — Is the issuing Clerk entitled to charge 15c. for " Entering return to Summons " served in another Division ? A.— Notwithstanding the opinion of high author- ity to the contrary, we think he is entitled to this fee under item 6. So far as the question put is concerned, this item may be read thus : "Receiving and Entering Bailiff's return to any Summons * * * * except * * return to Summons * * from another Division." The latter we read as a Summons " issued^^ from another Division, and was intended to mark a distinctness from item 24. QUESTIONS ON CLERKS' TARIFF. 107 Any other construction would seem unreasonable, for the Clerk of the issuing Court is as much obliged to enter the return from a Bailiff of an outer Divis- ion as from the Bailiff of his own Court. 10. — Does this ll^m give a right to the Clerk to item 7. charge for entering any notice or admission filed " by a party to the suit, or is it confined to " notice of defence " or " admission " of indebtedness ? A. — The phraseology of this item was changed to enlarge the right of the Clerk to this fee. Com- pare the item at page 386 of Sinclair's D. C. Act, and at page 9 of the Addenda to Sinclair's D. C. Act, 1880 with the item of the present Tariff to be found at page 278 of Sinclair's D. C. Law, 1885. The Clerk is now entitled to the fee for entering and noting in the Procedure Book any bona fide written defence that a defendant may choose to make, or desire to enter. He is entitled also to the same for entering and noting every notice of admission in the Procedure Book ; as for instance under section 12 of the Division Courts Amendment Act, 1886, to be found ante page 33. The Clerk should not constitute himself the judge of the propriety, validity or necessity of these proceedings. 11.— Is a Clerk entitled to the fee allowed by item item 9. 9 unless he actually prepares the affidavit and administers the oath ? A.— The fee is allowed on condition that he "actually" prepares the affidavit and not other- wise. "Actually" is defined by Worcester, to mean :— " positively ; in act ; really ; in fact." An Item i). , •''CSE ; 3)cto ^^, Item 10. Item 11. lOS QUESTIONS ON CLERKS' TARIFF. affidavit would be "actually prepared" by the Clerk if prepared by any person acting for kirn for the time being- in so doing-: Blades v. Lawrence, L. U. 9 Q. B. 374. It will be seen from the lang:uage used that the administering the oath by the Clerk is not a condition of his beirijE? entitled to the fee, but only that he must, if required, ad- minister the oath without further charge. In cases where the Clerk himself is obliged to make the oath, as under section 152 of the Division Courts Act, (Sinclair's D. C. Act, 170, 171), he would never be entitled to the fee if any other view prevailed. 12.— Does not every affidavit, any party to a suit may offer and which is entered and filed with the Clerk, entitle him to the fee mentioned in item 9 ? A. — Certainly not. He is only entitled to it where the affidavit is " actually prepared '' by him. See the answer to next previous question. 13.— What copies of papers would a Clerk be entitled to charge for under item 10 for trans- mission to the Judge on application for new trial { A.—That must depend on the circumstances of each particular case. For fuller answer see Sin- clair's D. C. Act, 339 (d.) This item only applies to cases in which " no fee is already provided," and would have no application for instance to copies of Summons under item 3. 14.— Is the Clerk entitled to the fee given by item 11 for every notice of defence entered, whether such notice shews a good defence in law or not, or is not according to the requirements of some Statute i QUESTIONS ON CLERKS' TARIFF. 1()9 A.— The duty of the Clerk is ministerial only. It is not his duty to pronounce upon the validity of the notice. If it reasonably purports to be a bona fide defence to the action the Clerk should, if the notice be in time, receive and enter it, leaving to the Judge the question of its validity. In such case of course he would be entitled to the fee. 15.— Is not the Clerk entitled to a fee for every item ii. notice that he reasonably gives under item 11 ? A. — He is only entitled to the fee where the notice is one which he is bound by law to give to a party or the Judge. If the Judge ordered certain notice to be given, and the Clerk gave it, he would be entitled to the fee. 16.— If the Judge reserves judgment under section item ii. 106 of The Division Courts Act, without fixing any date for delivery of it, and on its being delivered the Clerk notifies the parties of it ; is he entitled to charge the usual fees for notices t A.— Properly, judgment cannot be delivered in that way except by consent of parties : In re Burroim.% 18 C. P. 493, but if it is so delivered we cannot see anything in the Taiiff permitting of this charge any more than if judgment had been delivered at an appointed time. In the latter case we see nothing requiring notice to the parties, nor in the case put unless specially ordered. 17.— Is a Clerk entitled to anything for receiving item 12. and paying over to a judgment creditor the many small sums which are frequently ordered to be paid on Judgment Summons i A. - He is not. We think, however, the allowance m . Sl^ SI Item 12. Item 18. Item 18. Item 13. Items 13 and 17. 110 QUESTIONS ON CLERKS' TARIFF. of a small sum by way of commission, payable by the creditor, would not be unjust to him, and only fair to the Clerk in such cases. 18.— Does the entering a minute in the Procedure Book, under Rule 27, (Sinclair's D. C. Act, 244, 245), entitle the Clerk to a fee under item 12 i A.— It does not. It is not a final .judgment. 19.— What fee is a Clerk entitled to on an order of a Judge setting aside judgment entered by the Clerk by default and letting a defendant or other party in to defend i A.— The sum of 25c. 20. — What fee is a Clerk entitled to on an order of a Judge granting a new trial of a cause ? A. — The sum of 25c. under item 17. 21 ; — What fee is a Clerk entitled to on an order of a Judge refusing a new trial? A.— The sum of 50c. It is a " final order." See Be Waldie v. Burlington, 13 App. R., at page 114 ; Great N. R'y Co. v. Mossop, 16 C. B. page 580, S. C. 17 C. B. page 139 ; Dodds v. Shepherd, 1 Ex. D. 75 ; Re Foley v. Moran, 11 P. R. 316. 22.— What fee is a Clerk entitled to on an order adjourning the hearing of a cause ? A.— The sum of 25c. Item 16. 23.— Should there not be an original Summons to jurors, with an affidavit of service by the Bailiif, and can same be charged for ? A.-Section 10 of the D. C. Act of 1885, (Sinclair's D. C. Law 1885. 131), now contains the law in regard QUESTIONS ON CLERKS' TARIFF. HI to the summoning of jurors. It is there declared how a. jury may "be summoned to try the issue." The Summonses to jurors are all originals, being under the hand of the Clerk and the Seal of the Court : Sinclair's D. C. Act, 297. Nothing is said anywhere about a "'copy'''' of Summons to a juror. Not so in regard to Summons to witness. He is served with a copy : Sinclair's D. C. Act, 125, 126. In view of the consequences of non-attendance by a juror, (Sinclair's D. C. Act. 144), we think the Clerk should properly have a 13th Summons with the names of all the twelve jurors in it, and that there should be an affidavit of service by the Bailiff attached to it and placed before the Judge at the appointed sittings. Without such we see much difficulty in his imposing a penalty for contempt on non-attendance. The Clerk can, we think, charge 10c. for this Summons under a reasonable construction of item 16 and the necessity of the case : Maxwell on Statutes, Chapter IX., section 2. The affidavit could be charged for under item 9, provided the conditions there imposed were com- plied with. 24.— Where there are several cases tried by a jury item i6. at a sittings, in each of which a request for jury was duly made, how should the cost of summoning the jurors be dealt with ? A.—" For the trial of all actions required to be tried by or before a jury at any session of a Division Court," the Clerk shall cause twelve persons liable to serve as jurors to be summoned : Sinclair's D. C. Law, 1885, 131. It follows as a matter of course that the costs of summoning the 112 QUESTIONS ON CLERKS' TARIFF. aw: iitak i. j ill jury should be charged in equal proportions to the proper party in each suit. The suitor who first requests a jury should not have to pay all the costs of summoning them, but only his propor- tionate share. Item 17 25. "Where a case is put on the Judge's List and before it is called in Court, or before the Judge is about to commence the hearing of it, the parties settle the cause, is the Clerk entitled to a fee under item 17 for an order ? A.— We do not think a Judge can make any order after the settlement of a case. It is withdrawn by the parties from his authority. They have the right to settle their own cause, and tlie law en- courages the prevention or discontinuance of litigation. Any memorandum that the Judge may make for future reference or the guidaii(;e of the Clerk is not an (rrder under item 17, nor a judgment " rendered at the hearing or final order made by the Judge," under item 13. Item 18. 26.— Can a Transcript to the County Court, or a Transcript to another Division Court be issued from any Court other than the Division Court in which the judgment was originally recovered I A. — It cannot. It must issue from the Court in which judgment was originally recovered. Item 18. 27.— Is the Clerk entitled to any fee for making out a Certificate of Judgment, to be filed with the Sheriff, under The Creditors' Relief Act or with an Assignee \ QUESTIONS ON CLERKS' TAHIl'F. 113 A.— There is no allowance for it, but there should be. 28.— What is the proper amount of the Foreign item lo. Clerk's fees on a return of ' MiillaBona" to a Transcript 'i A. — The sum of 15c. under item 1 ; 50c. under item 19 ; 15c. under item 6 ; and 15c. under D. C. Act, 1882 ; Sinclair's D. C. Law, 1884, 83 ; together with postage and registration. 29.— When only is a Clerk entitled to a fee for item 20. renewal of an Execution under item 20 ? A.— In order to entitle the Clerk to this fee three things must concur : (1) The Execution must be in force and un- expired : Sinclair's D. C. Act, 275, Rule 158 ; Sinclair's D. C. Law, 1884, 97 ; Loiuson v. Canada F. M. Im. Co., 9 P. R. 309, 19 L. J. N. S. 18, S. C. ; Bank of Montreal v. Taylor, 15 C. P. 107 ; Price v. Thomas. 11 C. B. 543 ; Cole v. Sherard, 11 Ex. 482. (2) It must be wholly unexecuted. If partly executed before its expiration, for instance by seizure under it, renewal could not be made : Sinclair's D. C. Act, 182. In such case the Bailiff could go on and execute the Writ, even after its expiry : Sinclair's D. C. Act, 175 ; Doe Tiffany v. Miller, 6 U. C. R. p. 431. (3) The renewal can only be made at the instance of the Execution Creditor : The Division Courts Act, section 163. 30.— Is a Clerk entitled to a fee for search on a item 25. judgment more than a year old, on which he is instructed to issue Execution ? 114 QLESTIONS ON CLE11K8* TAL-J-P. m >««c> ^ A.— Ht^ in not, provided the party deBiprnatcB the Huit, but if the perHoii doew not know the name of the Huit, or (cannot otherwine reasonably identify it, and the Clerk has to search therefor, then he is entitled to oharjjre for a search ; per Hagarty, C. J., in Boss V. McLay, 26 C. P., pages 199 and 200. Item 26. JU.— What is the meaning of item 26 :— "Taxing costs in defended suits"— and to what cases does it apply 't A.— A dt;fended suit within the meaning of that item is : — (1) Where it is a case requiring a notice of dis- pute to be filed, and that such noticie is filed. (2) In (rarnishment ceases where the amount is disputed under the 12th section of the Division Courts Amendment Act, 1886, ante page 38. (8) In an action on an ordinary Summons where after servicre, the case is standing for trial and un- (confessed : Sintaair's D. C. Act, 170, 268. See Worcester's Di(rtionary — " Defend." " Taxing Costs " means a determining of the (losts in the suit by the Clerk and more especially where those costs (comprise charges other than his own. Costs must be "taxed" even though an action is not defended : Sinclair's D. C. Act, 258, Rule 89, amended by Rule 178 and Form No. 129, to be found at pages 3, 4 and 6, of the Addenda to Sinclair's D. C. Act, 1880. QUESTIONS ON BAILIFFS' TARIFF. 115 BAILIFFS' TARIFF OF FEES ( The number of the Item in the Bailiffii' Tariff on which the Quetlion it atked irill be found noted in the margin) 32.— Whether does item 1 or f> apply in the case items i of a Summons in Replevin 'i A.— Provision is made by item 1 for an ordinary Summons and by item 6 for ca^^eH in Replevin. Item 6 would be the one applicable. 33.— If a Bailiff ffets any person to serve a Sum- item i. mons for him, can the Clerk allow the fee for service 'i A.— It is doubtful if any person but a Bailiff can serve a Summons : D. C. Act, section 45 ; White- head V. Fothergill, Dra. Rep. 2(K) ; Rattan v. Ashf\>rd, 3 O. S. 302 ; but, assuming that it can be done, we do not think the fee should be taxed, unless the person is a Deputy duly appointed under the 4th section of the Division Courts Act of 1884; Sinclair's D. C. Law, 1884, 80. The Tariff is framed for Bailiffs and not for those who are not. 34.— The Bailiff has 12 Jury Summonses for ser- item s. vice and finds that one or more of the persons named by the Clerk as Jurors are dead, or removed from the Division. What is the Clerk or Bailiff to do ? A.— By section 5 of the Division Courts Amend- ment Act, 1885, (Sinclair's D. C. Law, 1885, 131), the Clerk " shall cause not less than twelve of the persons liable to serve as j urors to be summoned to attend." He should use all lawful means to have that number present. The Bailiff should Ml 116 QUESTIONS ON BAILIFFS' TARIFF. '"WE? ", 'Itekii report to the Clerk at once if any of the parties for whom he has jury Summonses are dead, or have gone away, and the Clerk should then take from the list of jurors a sufficient number of additional names to give a return of twelve jurors, and issue Summonses for the persons whose names have been so taken and have the Bailiff serve them in the ordinary way. The primary object of the Statute is to have ''not less'''' than twelve jurors, and to this end the endeavours of Clerk and Bailiff should be directed, even though more than twelve Summonses have to be issued. Item 5. 35.— What is a defended case under iteir, 5 ? A. — A reasonable construction of this item we submit is where the plaintiff or defendant has to call a witness or witnesses to prove his contention. Item 6. 36.— Where a Writ of Replevin is issued against two defendants and served on both, but the goods are found in possession of one of them, is the Bailiff entitled to his fees under items 1 or 6 ? A.— The Bailiff would be entitled to the fee prescribed by item 6 (according to the value of the goods), for enforcing the Writ against each defend- ant. Items 6 37.— Whore goods are under seizure by a Bailiff and 9. on an Execution in his hands, and another Execu- tion is subsequently placed in his hands, is he entitled on the second Execution to a fee for "enforcing" it under item 6, and also to a fee for " schedule of property seized " under item 9 ? A.— He is entitled to a fee for " enforcing " the second Execution. That expression simply means QUESTIONS ON BAILIFFS' TARIFF. 117 using such means as the law prescribes under the circumstances for the realization of the money. It does not necessarily comprise a seizure. Worcester, title, " Enforce." The Bailiff is only entitled to a fee under item 9 for " every schedule of property seized." He was entitled to it in the case put, on the first Execution, but is not on the second. The property being in the custody of the law and in his possession under the first seizure, the Bailiff could not legally make a second seizure. " The goods were already in the custody of the law, being in the Sheriff's hands under the prior writs. He could not seize them again, but the writ attached upon them, as if he had seized under it": per Robinson, C. J., in Beehman v. Jarvis, 3 U. C. R. p. 281. See, also Jones V. Atherton, 7 Taunt. 56 ; Saunders v. Bridges, 3 B. & Aid. 95 ; Sharpe v. Fortune, 9 C. P. 523 ; Barclay v. Sutton, 7 P. R. 14 ; McMaster v. Meahin, 7 P. R. 211 ; Swift v. Cohourg & Peterborough Ry. Co., 5 U.C. L. J. 253 ; Watson on Sheriff 250 ; Sinclair's D. C. Law, 1885, 171. Therefore if the Bailiff could not make a seizure again he would not be entitled to charge for schedule of property " seized.'''' T^ e same rule would apply to the other cases of Attachment or Replevin mentioned in item 9. Besides, reason is against it ; no good purpose would be served by it. 38.— An Attachment issues against a debtor on item 6. the ground that he has attempted to remove his personal property liable to seizure from one County in this Province to another therein, is the Bailiff 118 QUESTIONS ON BAILIFFS' TARIFF. >» J's Digest 8563. No provision is made for mileage on going to sell. Any remuneration therefor is cover- ed by the fees prescribed in items 12 and 13. 44.— Can a Bailiff refuse to do any service as such item 7. until he is first paid his lawful fees 'i A.- Before a Bailiff is compelled to act in any proceeding his lawful fees must be first paid by the party at whose instan(;e he is required to act. 45.~Where a Bailiff makes several ineffectual item 7. attempts to serve a defendant, and travels many miles in doing so, and at last effects service, is he entitled to mileage for the ineffectual attempts at service 'i A.— He is not. He is only entitled to mileage on one trip, and the distance to be allowed for is " from the Clerk's office to the place of service." 46.— Is the Bailiff entitled to double mileage in item 7. going to seize on an Attachment, and to serve the ill. 1:: 120 QUESTIONS ON BAILIFFS' TARIFF. !!;i= Summons in the same case, both being effected at the same time ? A.— We think not, but the reason for that opin- ion is not so clear. In analogy to the case of The Corporation of Haldimand v. Martin^ 19 U. C. R. 178, where it was held that a Sheriff was not enti- tled to double mileage for the same journey in serving grand and petit jurors, we think a Bailiff could not properly charge mileage in going to execute an Attachment and serve a Summons for the same plaintiff against the same defendant and in the same suit. Item 8. 47.— A Bailiff arrests a delinquent, and is neces- sarily compelled to incur heavy expense and dis- burse largely for conveyance and assistance in taking the person to prison. Is the Bailiff in such a case limited to 12c. a mile for his own mileage and 20c. a mile for carrying the person to prison, or is he entitled to anything in addition to the 20c. a mile if he actually expended the same. A.— He is not entitled to anything more. The Table of Fees for Clerks and Bailiffs contains everything that is properly chargeable by either officer : Sinclair's D. C. Act, 277 ; Macnamara v. McLay, 8 App. R., p. 343 ; Danforth's U. S. Digest 775. Item 8. 48.— Is a Bailiff entitled to mileage for travel actually and necessarily performed by him in going to arrest a delinquent under a warrant, or is he only entitled to mileage from the Clerk's office to the place of arrest ? A.— The Bailiff is in such case entitled to mile- QUESTIONS ON BAILIFFS' TARIFF. 121 age for the distance actually and necessarily travel- led and not merely from the Clerk's office to the place of arrest. The concluding part of item 7 does not, nor could it from the language employed, apply to the case of arrest. 49.~What mileage is a Bailiff entitled to on item a taking a delinquent to prison under arrest ? A.— He is entitled to mileage from the place of arrest to the prison by the ordinary and usual travelled route, at the rate of 20c. lyev mile, all expenses and assistance being included in tnat sum. 50.— If a delinquent, after being arrested by a item 8. Bailiff, escapes from his custody, is the Bailiff entitled to any mileage % A.— He is not ; and might under certain circum- stances be liable for an escape. 51.— Can the Clerk issue a Warrant of Commit- item 3. ment to a County Constable, and can the latter legally execute it ? A.— A Warrant of Commitment can neither be issued to nor executed by a County Constable. It must be issued to the Bailiff, but he may in aid of its execution, call to his assistance any Constable or peace officer of the County : Sinclair's D. C. Act, 196. As remarked by Jervis C. J., in Gregory \ Ootterell 5 E. & B., at page 586 :— " The law * * requires the presence of the responsible officer to control the execution of the Writ." 52.— Is it proper for a Bailiff to take a bond for item 10. goods seized under an Execution and then apply for an Interpleader Summons ? p 122 QUESTIONS ON BAILIFFS' TARIFF. 3te. Item 11. A.~Goods must be "taken in execution," that is, t\' i} ( be seized before a Bailiff can inter- plead ' /w V. Tune, 2 U. C. R 177. He must have them in possession himself, or some one for liii.i, at the ^.^'"^e of the application : Cababe on Interpleader, 25. I*' tb a Bailiff abandons possession he cannot have interpleader : Braine v. Hunt, 2 Dowl. 391 ; Wheeler v. MurvTiy, 1 P. R. 336 ; Maclean v. AntJiony, 6 Ont. R. 330. The taking of a bond reciting that upon the Bailiff's being in- demnified he has consented "to permit the said goods and chattels to remain in possession of the said defendant, for his, the said defendant's benefit," is undoubtedly an abandonment of the seizure within. Castle v. Ruttan, 4 C. P. 252, and the other cases cited at pages 176 and 177 of Sinclair's D. C. Act, disentitling the Bailiff to interpleader. See, also, Craig v. Craig, 7 P. R. 209 ; Cropper v. Warner, 1 Cab. & Ellis, 152 ; Patl^^rson v. McKellar, 4 Ont. R. 407. 53.— Where goods are seized on an Execution, and before notice of sale other Executions against the defendant come into the Bailiff's hands, what course should he pursue, and would he be entitled to the fee for notices of sale under item 11 on each Execution 'i A.— If notice of sale given on each Execution, he would be entitled to the prescribed fees. The usual course is to make three notices of sale, reci- ting in them all the Executions in his hands. In such case the Bailiff is entitled to notices of sale on each Execution as much as if he gave separate notices in each case. QUESTIONS ON BAILIFFS' TARIFF. 123 54.— Can a Bailiff insure property in his posses- item 12. sion under Execution, Attachment, or other pro- cess ? A — By virtue of the proceedings taken a special property in the goods becomes vested in the Bailiff, which enables him to protect the rights he has acquired, and this property constitutes an insura- ble interest, which he may protect by obtaining insurance thereon. He would not, however, be under any obligation to do so, Drake on Attach- ment, 5th Ed., Section 201. 55. — Is a Bailiff entitled to be paid for money dis-item 12. bursed for searches to see if any Bill of Sale or Chattel Mortgage filed against the goods seized or attached, or about to be seized or attached by him. A.~There is no provision for such a case, although we think there should be. 56.— Is a Bailiff entitled to the expense of taking item 12. stock of the property seized on execution ? A.— There does not appear to be any allowance for it and therefore the Bailiff is not entitled to such charge : Morrison v. Taylor, 9 P. R. 390 ; Arch. Pract., 12th Ed., 635 ; Grant v. Grant, 10 P. R. 40. 57.— Would a Bailiff be entitled to three per cent, item 13. poundage where the Execution Creditor had set- tled with the debtor and taken a promissory note for the full amount of debt and costs after seizure ? A.— This might properly be said to be a satis- faction of the debt, entitling the Bailiff to such poundage under item 13 : McRoberts v. HamilUm, 7 P. R. 95. Arch. Pract, 12th Ed., 636. ■ 'Miwt, 9US '•3^. Si:? 124 QUESTIONS ON BAILIFFS' TARIFF. item 13. 58. — Wlitjfe a Bailiff necessarily travels several miles to enforce a Writ of Execution, but before seizure the Writ is either withdrawn or proceedings '^ upon it stayed by the Execution Creditor, is the Bailiff entitled to anything more than his mileage ? A.— He is only entitled to mileage and receiving. tttrtt 13. 59.- If a Bailiff secretly becomes the purchaser of goods at a sale under Execution could he obtain any fees ? A,— Certainly not It would be a void sale : Sinclair's D. C. Act, 189. Item 13. 60.— Where goods seized are covered by Chattel Mortgage and the Bailiff sells the goods, pays off the Mortgage, applies the balance on his Execu- tion, what poundage is he entitled to ? A.— He is entitled to poundage on the nett amount realized from the sale of the property under the Execution, and not on the money paid to the Mortgagee or on the Bailiff's own fees and expenses : McRoberts v. Hamilton, 7 P. R. 95 ; Michie v. Reynolds, 24 U. C. R. 303. Item 13. 61.— Can a Bailiff refuse to pay over to the Clerk moneys which he has made on Execution, on the ground that the property was not saleable under the Execution 'i A.— He cannot do so. It does not lie in his mouth to say so : per Robinson, C. J. in Hewitt v. Jarvis, 15 U. C. R., page 42. If the money was claimed by a third party the Bailiff might interplead. Item 13. 62.— Is a Bailiff entitled to any poundage under item 13, if before seizure or sale the defendant pays QUESTIONS ON BAItjIFFS* fARIPP. 125 him the amount of the execution, and if he exacted poundage, what might be the consequences ? A.-We think not : Sinclair's D. C. Act, 338,339 ; Tlie Merchants' Bank v. Campbell, 32 C. P. 170. There is no difference in this respect between the old Tariff and the present one. The present Tariff gives the Bailiff three per cent, if the debt is " satisfied in whole or in part after seizure and befoi'e sale." The consequences.of illegally exacting money for poundage or other fee are very serious to any Division Court officer : (1) For extortion of money by any public officer, he could be indicted for the misdemeanor of mal- feasance of office, punishable with fine and im- prisonment, or both : Roscoe's Criminal Evidence, 8th Ed., 811. (2) A Bailiff could be tried by the Judge under section 219 of The Division Courts Act for the illegal exaction of fees : Sinclair's D. C. Act. 225. (3) He would be liable to repay the amount illegally obtained, whether paid under protest or not: Cwporation of Haldimand v. Martin, 19 U. C. R. 178. 63.— Where a Bailiff distrains for the amount of item is. rent claimed by a landlord and costs, as well as for the amount of the Execution in his hands, under the 212th section of the Division Court Act, how is his poundage regulated i A.— The Bailiff is entitled in such case to pound- age on the amount payable to the Execution Creditor, exclusive of his own costs and expenses : Michie V. Reynolds, 24 U. C. R. 303 ; McRoberts v. sli ., -I 12rt QUESTIONS ON BAILIFFS' TARIFF. Item 13. Item 13. i.j i i ;|i Items 13 and 10. s - BE 1 1 1 1 Hamilton, 7 P. R. 95 ; and his costa for the distress for rent are governed by R. S. O., chapter 65. 64.— Where a seizure is made by a Bailiff on Execution, but before sale the Execution and all proceedings thereon are set aside, is he entitled to any poundage whatever ? A.— He is not : Walker v. Fairfield, 8 C. P. 95 ; Miles V. Harris, 12 C. B. N. S. 550. 65.— Is a Bailiff entitled to poundage on the gross sum realized from the sale or only on what he pays over ? A.— He is not entitled to poundage on anything but the iiett sum paid over or going to the Execu- tion Creditor : Michie v ReunoMs, 24 U. C. R. 303 ; McUoberts v. Hamilton, 7 P. R. 95. He is not entitled to poundage on what he may be entitled to himself. 66.— Is a Bailiff entitled to any fee, and if so, what, on a return by him of a Warrant of Attach- ment or Arrest unexecuted ? A.— We do not think he is entitled to any fee in such a case. 67.— Where a Bailiff procures a necessary Bond to be prepared by a Solicitor or other person, is he entitled to the fee mentioned in item 10 \ A.— We think where a Bailiff procures another to prepare a Bond, he is entitled to the fee upon the principle that what a man can do himself he may do by another. Item 13. 68.— Is a Bailiff entitled to poundage where he Item 13. QUESTIONS ON BAILIFFS' TAUIPF. 127 sellH perishable property taken by him under Attachment ? A.— We think that in view of sections 195 and 204 of The Division Courts Act, (Sinclair's D. C. Act, 206, 211), the Bailiff would be entitled to five per cent, on the amount realized. The proceeding might be considered in the nature of Statutory Execution. 69.— Would a Bailiff be entitled to five per cent, item i;?. under item 13 where the parties had after seizure on Execution, settled the case between themselves i A.— We think not. He would only be entitled to it on sale of the goods and where the money a(;tually passed through his hands : Hamilton and Port Dover Ey. Co. v. The Gore Bank, 20 Grant 190. 70.— A Bailiff has an Execution in his hands, and item 13. he goes to the defendant's house, shews him the Execution and demands payment. He tells the defendant that in default of payment he ivtnst remain in possession and that further proceedings will be taken, upon which the money is paid. Is the Bailiff entitled to five per cent, under item 13 i A.— We think not ; but he would be entitled to three per cent, on the nett amount realized, this in effect being a seizure : Bissichs v. Bath Collier y Co., 3 Ex. D. 174 ; Consolidated Bank v. Bickford, 7 P. R. 172 ; Wadsivorth v. Bell 8 P. R. 478 ; Morris v. Boulton, 2 C. L. Cham. 60. 71.— Has a Bailiff any right of action for poundage item 13. or other fees against an Execution Debtor, by reason of the Execution being in his hands, or is his sole remedy for fees on the Execution alone ? 128 3m: IE. U.4 i'i- Hf Items 18 aud 7. Items 12 ami 13. Items 12 and 13. QUE8TI0NH ON BAILIFFS' TARIFF. A.— The Bailiff liaH in such a case no remedy for poundage or other fees except on the Execution : Thomas V. G. W. Ry. Co., 24 U. C. R. 326. 72.— Can suitors obtain an original Summons for witness from the Clerk, make out copy and serve it themselves, or must they give it to the Bailiff for service '{ A.— We think parties can, on obtaining original, makt! out their own copies of Summons to witnesses and serve them themselves (jiiite independently of Clerk or Bailiff, but no fees could be taxed therefor : McLean v. Evam, 8 P. R. 154 ; Ham v. Lasher, 24 U. C. R. 357. 73.— Where a Bailiff seizes unthreshed grain, is he justified in incurring the expense of threshing the same for the purpose of its better sale, and would such expense be deductablo from the proceeds of sale ? A.— We think the Bailiff should incur such expense, if doing so would result in a better sale of the grain and the sum paid for the threshing would undoubtedly be a disbursement by the Bailiff deductable from the proceeds of sale : Galbraith v. Fortune, 10 C. P. 109. 74.— Are the Bailiff's fees and disbursements on executing an Execution subject to taxation by the Clerk ? A.— They are. The Clerk should particularly see that nothing more is charged than what is law- ful, and where the Bailiff's costs and expenses are out of proportion to the amount realized, the Clerk gUEBTIONB ON B/ilLlFFfc,' TARIFF. 129 Hhonld be exonptionally particular, and if iieces- Hary brinpr the matter to the notice of the Judge : Michie V. Remolds, 24 U. C. R. 303 ; Black v. Reynolds, 43 U. C. R. 398. 75. — Where a claim is made to goods seized under itemB 12 Execution, must the Bailiff interi lead where the *° ** Execution Creditor is worthless and there is no prospect of the Bailiff's getting his expenses from him if the Claimant succeeds ? A.-- The Bailiff interpleads for his own protection. He is not bound to do so, but may take the risk of an action if he chooses. The worthlessness or poverty of the Execution Creditor does not lessen the responsibility of the Bailiff or save the pru- dential necessity of interpleader. Q INDEX. "Sist; '" *», !|1 I i& '*'; hi'::' i |fr 1: ; ij: : i !;; 1 S ' 'M '; S i ABSooNDiMa Debtors — bailiff to retain posBession of property attached, 50 and to be allowed expenses for kef^^^^^g same, 60 if property seized by a county constable, he shall hand same over ,;o bailiff, 60 perishable goods of, disposal of, 61 creditor who directed sale to give bond indemnifying officer, 51 moneys realized by bailiff to be paid over to Clerk, 63 how residue, after satisfying judgments, to be disposed of, 53 what goods of, bailiff can attach, 118 and to what fees entitled, 118 Account — Clerk's right to be famished with copy of, 105 costs of copy of, made by Clerk, 106 Acts of Pabliahent — shall be deemed remedial, 80 to receive fair, large and liberal interpretation, 80 Addimo Defendants — See DefendanU. Adhinistbatob — may be added as a party defendant, 76 AlTIDATIT — when Clerk allowed fee for preparing, 107 must be " actually prepared " by him, 107 of service of summonses on jurors to be made by bailiff. 111 Appbopriation of Payments— &« Payments. Abbitbation — parties may agree to refer matters in dispute to, 46 agreement to refer to be in writing, 46 and to be filed with Clerk, 46 time for making award may be extended by Judge, 46 witnesses must be examined under oath, 46 unless agreement or statutory provision to the contrary, 46 servants and officers of either party incapacitated from taking part in award, 46 INDEX. 181 Arbitbation— Continued fraudulent conduct of arbitrator alone no defence to an action upon the award, 46 appointment of third arbitrator by two others, 46 enlargement of time for making award, 46 award must fix with certainty amount to be paid, 46 or judgment could not be entered thereon, 46 defective award, 46 costs of, 46, 47, 48 arbitrator must be a disinterested party, 46, 47 arbitrator may be appointed verbally, 47 award must be signed by all arbitrators in presence of each other 47 improper reception or rejection of evidence, 47 if action lapses, reference drops, 47 where subject illegal, 47 felony not subject of, 47 setting aside award. 47 powers of arbitrator, 48 form of order of reference, 48 ASSIONMBNT FOB BENEFIT OF CbEDITORS — payn>ent to creditors valid if bona fide security surrendered therefor, 82 nor shall security be invalid when bona fide advance made to a debtor, 82 precedence of, subject to lien of execution creditor for costs, 82 where assignment to be filed in provisional judicial districts, 82 where new assignee appointed, estate to vest in him without conveyance, 82 publication of notice, 83 assignee to prepare aoootrnts, 83 and to give notice of dividend sheet, 63 Attaohubnt — clerk not entitled to fee for distributing proceeds of, 106 proper mode of distributing proceeds of, 106 what goods of absconding debtor liable to, 117, 118 bailiff's fees for, 118 bailiff not entitled to fee for return of warrant of, unexecuted, 126 132 INDEX. B Baiuff— mti '" 3Si, U\ when suspended, process may be directed to be served and executed by bailiff of next Divi'iion, 23 or by such other bailiff or person as /.e Judge or Clerk orders, 23 duty of, to ascertain value of goods in interpleader oases, 104 responsible for correctness of return to summons, 106 affidavit of service of summonses on jurors to be made by. 111 fee of, for enforcing summons in replevin, how fixed, 116 doubtful if service of summons good, unless by, 115 duty of, when any jurors chosen, dead or removed from his Division, 115 fees of, for calling parties and witnesses in defended cases, 116 " defended case," meaning of, 116 fees of, when writ of replevin issued against two defendants, 116 but goods in possession of one, 1 16 entitled only to fee for " enforcing " second execution, 116 " enforcing," meaning of, 116 entitled to one fee for every schedule of property seized, 117 duty of, in attaching goods of absconding debtor, 118 to what fees entitled, 118 entitled to mileage in each case in serving summonses, Ac, on one defendant in several suits, 118 to what mileage entitled in serving several defendants in one suit, 118 not entitled to mileage when he wrongfully abandons seizure made, 118 not entitled to fees when acting on an expired execution, &c., 118, 119 no mileage allowed to, on going to sell goods seized, 119 not compelled to act until fees paid, 119 not allowed mileage for ineffectual attempts to effect service, 119 when not entitled to double mileage, 119, 120 not allowed extra expenses incurred in arresting a delinquent, 120 when allowed mileage for distance actually travelled, 120 amount of mileage allowed in taking delinquent to prison, 120, 121 not allowed any if prisoner escapes, 121 Olerk must issue warrant of commitment to, 121 must seize goods before interpleading, 121 INDEX. 133 Bailut — Continued. cannot interplead after abandoning poBsesBion, 121 taking of bond equivalent to abandoning seizure, 122 fees of, for notices of sale where several executions in his hands, 122 has an insurable interest in property seized, 122, 123 not bound to insure, 123 not allowed disbursements for searching as to chattel mortgages, &c., 123 not entitled to expense of taking stock, 123 poundage allowed to, when promissory note given in payment after seizure, 123 mileage allowed to, where execution withdrawn before seizure, 123 cannot purchase at sale under execution, 123, 124, entitled to poundage on net amount only realized from sale, 124, 125, 126 cannot refuse to pay over money to Clerk on ground that goods not liable to seizure, 124 exaction of poundage by, if amount of execution paid before seizure, illegal, 124, 125 how poundage regulated when he distrains for rent as well as on execution, 126 not entitled to poundage where execution set aside, 125 not entitled to fee on return of warrant of attachment or arrest unexecuted, 126 entitled to fee for bond prepared by solicitor, &e., 126 amount of poundage entitled to on sale of perishable property, 126 where case settled between parties, 126, 127 amount of poundage entitled to where amount of execution paid before sale, 127 only remedy for poundage, &c, is on the execution, 127 summonses to witnesses need not be served by, 127 may incur expense of having grain seized threshed, 128 fees, &e. of, subject to taxation by Clerk, 128 poverty of execution creditor does not lessen duty of, to in- terplead, 128 BOABDINO-HOUSH EeEPEB — garnishment by and lien of, 15 134 INDEX. Bond — seizure abandoned when taken by bailiff, 121, 122 bailiff er.iitled to fee for, when prepared by solicitor, &e., 122 ri " sas; '\'l 4 Cbbtificate of Judombnt— iS«« Judgment. Chattel Mobtoaoe — bailiff not allowed disbnraements for searching for, 123 GlKRK, 'JlVIBION CODBT— to keep record of all snmmonses, notices filed, orders, judg- ments and executions, 11 how fee regulated in replevin and interpleader, 108, 104 when to issue concurrent summons, 104 costs of issuing, 104 not entitled to fee for adding future days of sittings when special summons not served in time, 105 not bound to receive claim without being furnished with copy, 106 costs of copy of claim made by, 106 no fee allowed to, where case settled before service of summons, 106 entitled to costs of "return " to summons when defendant not found, 106 not entitled to fee for distributing proceeds of attachment, 106 how proceeds to be distributed, 106 entitled to costs of entering return of summons served in another division, 106 entitled to fee for entering any bona fide written defence and notice of admission in procedure book, 107 when allowed fee for preparing affidavit, 107 must be " actually prepared " by him, 108 what copies of papers entitled to charge for on transmission to Judge on application for new trial, 108 duty of, to enter any bona fide notice of defence, 109 not to inquire into question of validity, 109 entitled to fee for entering, 109 entitled to fee, only when bound by law to give notice, 109 not entitled to fee for giving notice of judgment when reserved, 109 not entitled to fee for paying over small sums ordered to be paid on judgment summons, 109 INDEX. 135 Olbbk, Ditibion Covkt— Continued. not entitled to costs of entering minute in procedure book, 110 what entitled to on order setting aside judgment entered by default, 110 what fee entitled to on order for a new trial, 110 what fefl entitled to on order refusing a new trial, 110 what fee entitled to on order adjourning hearing of a cause, 110 not entitled to fee for order, after case settled, 112 not entitled to fee for certificate of judgment to be filed with sheriff or assignee, 112, 113 when entitled to fee for renewal of execution, 113 not entitled to fee for a search on judgment more than one year old, 118, 114 unless name of suit not given, 114 duty of, when any juror, dead or removed from his division, is chosen, 115 cannot issue warrant of commitment to county constable, 121 but to the baiUff, 121 to tax bailiff's fees, <&o., 128 GomiisaioN- upon application for, Judge ought to be satisfied that claim is one the court ought to try, 26 general rules on which commission will be ordered, 26, 27 if evidence taken under, and not used, costs of, will be dis- allowed, 27 GoHPZMSATioN TO WoBSHSM — See Workmen. OOMCUBBINT SOHMONS — to oharge plaintiff with costs of. Clerk to have express or implied authority for issuing, 104 only to be issued when defendants in different counties, not divisions merely, 104 to ohatge defendants with costs of, urgent necessity to be shown, 104 costs of, in addition to original allowed as an original, 104 GONTBAOT- personal action may be joined with action on, 13, 14 provided whole amount claimed does not exceed 9100, 18, 14 actions on, to 9100 may be brought in Division Court, 14 136 INDEX. S53 'ii COBTH— if Bnit within jariBdiotiou of Division Court, brought in High Court, Division Court costs only allowed, 16 where order made transferring cause pending application for pro- hibition, defendant is entitled to costs of application, 15 of application for order for names of partners in firm, 79 of concurrent summons, 104 in addition to orijinal summons allowed as an original, 104 of copy of claim made by Clerk, 106 not allowed to Clerk when case settled before service of summons, 106 of " return " to summons when defendant not found allowed, 106 of entering return to summons served in another division allowed, 106 of entering any bona fide defence, <&c. in procedure book allowed to Clerk, 107 of affidavit when allowed to Clerk, 107 Clerk entitled to, for entering any bona fide notice of defence, 109 not to inquire into question of validity, 109 Clerk entitled to, only when bound by law to give notice, 109 of giving notice of judgment reserved not allowed, 109 of service of summonses on jurors. Ill when several cases to be tried at one sittings, 111, 112 taxing of, in defended suits, 114 "defended suit," meaning of, 114 " taxing costs," meaning of, 114 baili£F not compelled to act before paid, 119 bailiff not entitled to, on return of warrant or attachment or arrest unexecuted, 126 bailiff entitled to, for bond prepared by solicitor, &o., 126 of baiUff subject to taxation by Clerk, 128 COOHTBB-OIJUM — is 8 statutory defence, 41 OouNTv Constable — cannot execute warrant of commitment, 121 COOMTT JUDOE — with certain others may appoint and alter number, limits and extent of divisions, 1, 8 to notify other officers of any application to alter divisions, 2, 3 and time and place when same will be considered, 2, 3, 9 INDEX. 137 CouKTY 3 ovati— Continued. „. . • unleH8 jury demanded, to be sole Judge in actions in Division Court, 14 cannot make any order after settlement of case, 112 D Debtor— See Primary Debtor— Dbfenck — withdrawal of, 71 form of withdrawal of, 71 notice of, clerk obliged to enter, 109 Defendants— may be added by order of Judge at any time, 73, 75 when added to be served with copy of original summons, 73, 75 summons to be properly amended before serving new defendant, 73, 76 service may be dispensed with on consent, 73, 75 individual members of firm may be added as, 74 not to be added on an ex parte application, 75 administrator or executor of, may be added as, 75 Defended Case — meaning of, 116 Distbess — See Landlords and Tenants. Division Coubts — not courts of record, 61 Divisions— County Judge, &c., may appoint and alter number, hmits and extent of, 1 on separation of Junior from Senior County, to continue same till altered by Judge, &o., 6 on alteration of, proceedings to be continued in such Division Court as Judge directs, 6 on separation of Junior from Senior County, Judge, Ac, to appoint number, limits and extent of, 8 and time when such change shall take place, 8 E Emplovbb — what included by, 85 Entbibb — . , . „ i copy of, certified by clerk, to be admitted in all courts as evidence, 11 R 138 INDEX. Evidence — of witness whose attendance at trial cannot be obtained ; Jadi{e may make order appointing some person to take, 67, 68 copy of order and notice of examination to be served on opposite party, 67, 62, 63, 64 bow evidence to be taken, 67, 62, 64 costs of order and examination, 57, 62 circumstances under which order will be made, 68, 69 where witness in state of pregnancy, 58 examination de bene ease, 58, 69 examination of parties themselves, 69 application for order should not as a rule be made ex parte, 69, 60 general rules as to when order will be granted, 60 no mode of enforcing attendance of witness, 61, 62 order must state names of witnesses to be examined, 61 by whom affidavit to be made, 61 objections ought to be made before examiner, 64 irregularity in taking deposition, 64 if witness able to attend trial, deposition could not be used, 64 onus of shewing facts to exclude deposition on party oppo- sing its reception, 64 either party could use deposition as evidence, 64 form of affidavit to obtain order, 65 form of notice of application for order, 66 form of order, 67 of witness who resides in remote part of Province ; Judge may make order appointing some person to take, 68, 69 EiBCDTiosr- i iS against partners, 74 when clerk entitled to fee for renewal of, 113 bailiff's fee for enforcing second execution, 116 bailiff acting on, if expired, entitled to no fees, 118, 119 when withdrawn before seizure on, mileage only allowed to bailiff, 123 sale to bailiff under, void, 124 if set aside, no poundage allowed, 126 when amount of, paid before sale after seizure poundage allowed on lower scale, 127 bailiff's only remedy for poundage, &e,, is on the execution, 127 INDEX. 139 EXBOCTOR — may be added as a party defendant, 76 F FiBMS — See Partners — FoBEioN Clerk — foes of, on return of " nulla bona " to a transcript, 113 Fub-Be/ibino Animals — close periods for hunting, 96, 97 possession of, and exposure to sale, how far lawful, 96 trapping of, partly forbidden, 97 penalties for hunting in close season and how enforced, 97 fine to be paid to prosecutor, 97 unless collusion appears, 97 confiscation of game to follow conviction, 97 preserves for game protected, 98 taking or killing of, by poison prohibited, 98 certain animals not to be killed for export, 98 fine to be imposed for such offences, 98 hounds not to run at large during certain periods, 98 fine to be imposed for such offence, 98 inspectors of game, how appointed, 98 duties of inspectors, 98 Form of inspector's deposition, 99 Form of search warrant to be issued, 99 G Qaublimo Debt — note given for, not suable in a Division Court, 15 even though in the hands of an innocent holder for value, 16 Gahe- olose periods for hunting, 96 possession of, and exposure for sale, how far lawful, 96 taking possession of eggs entirely prohibited, 97 trapping partly forbidden, 97 use of batteries and night-hunting of wild fowl forbidden, 97 close season for fur-bearing animals, 97 penalties imposed and how enforced, 97 fines to be paid to prosecutor, 97 unless collusion appears, 97 confiscation of, to follow conviction, 97 140 INDEX. ''''Tbi " "SSSi l!|i'! Qkuz—Continued. preserves for, protected, 98 killing or taking of, by poison prohibited, 98 certain animals not to be killed for export, 98 fine to be imposed for such offences, 98 hounds not to run at large during certain periods, 98 fine to be imposed for each offence, 98 inspectors of, how appointed, 98 duties of inspectors, 98 Form of inspector's deposition, 99 Form of search warrant to be issued, 99 Garnishee Proceedings — parties may set up statutory or other defence or set-off, 33, 40, 41 or admit liability in whole or in part, 33, 41 particulars of defence or set-off or admission to be filed with clerk, 33, 41 clerk to send copy of such to other parties, 33, 41 primary creditor may file notice admitting defence or set-off or accepting admission as correct, 3S, 41 clerk to send copy of such notice to garnishee, 33, 4*2 if no notice of defence or set-off filed Judge may give judgment against primary debtor or garnishee, 33, 42 if primary creditor does not file notice admitting or rejecting defence, set-off or admission, garnishee need not attend trial, 88, 42 and sum admitted as due by garnishee shall be taken as correct, 33, 42 unless Judge otherwise orders, 33, 42 costs of notices to be costs in the cause, 34, 43 all parties interested may shew cause, Ac, 34 may be taken although judgment more than six years old, 42 a debt due by a firm cannot be attached in partnership name 43 where trust moneys garnished all parties should be before Court, 48 ^ must be against individual members of a firm, 76 form of summons to primary debtors (before judgment) and garnishee, 100 form of summons to garnishee and primary debtor (after judg- s ment), 10- INDEX. Ul 41 ith or ent Qarnibbbb Prooeedimob — Continued. form of warning to garnishee, 100, 102 Oarnihbmemt — by innkeeper and boarding bonse keeper, 16 untaxed costs, when due are subject of, 16 where debt garnished is for wages, memorandum to be attached to summonB, 29, 31, 32 wages or salary cannot be garnished if amount not due, 29, 30 form of memorandum on summons where debt garnished is for wages, 31 A debt which is subject of, must be due to judgment debtor alone, 42 what is subject of, 48 where money not attachable ordered to be paid over in pro- ceeding to which no cause shewn, 43 garnishee has same right of defence against attaching creditor as he would have in an action by jndfipnent debtor 43, 44 General Sebsioms— resolutions and orders as to the Divisions not to be altered or rescinded till after notice at, 1, 3, 8 king end as ime art, and idg- Innkbbper — garnishment by, and lien of, 16 Imsurable Interest — of baiUff m goods seized, 122, 123 Imterplbadbr — if bailiff has more than one execution against same property he may apply for order in names of all execution credi- tors, 65 costs must be on Division Court scale, Co all execution creditors must be served, 66 in proceedings in High or County Courts sheriff must bring Division Court execution creditors into application too, 56 validity of judgment may be tried in issue, 56 but it could not be impeached for mere irregularity, 66 bailiff's duty to ascertain value of goods in, 104 and to specify value in application for, 104 142 INDEX. '«ra. lii Inxebpliadbr — Continued. which will be ^uide to amount of Clerk's fee, 104 Appraisal in, not provided for, 104 bailiff must seize goods before interpleading, 121 if bailiff abandons possession he cannot have 121 bailiff abandons seizure by taking bond, 122 a prudential necessity though execution creditor'worthless, 128 Jmat—See County Judge. JUDOHSMT— Form of minute of, where personal action joined with action on contract, 16 in action on promissory note, note to be filed with olerk before, 21 when reserved, clerk not entitled to fee for giving notice of, un- less Judge so orders, 109 transcript of, must issue from court where recovered, 112 certificate of, olerk not entitled to fee for, 112, 118 fees of foreign clerk on return of "nulla bona" to a transcript of, 113 more than one year old, fee on search for, 113 JunoMEMT Gbeditors— olerk not entitled to fee for distributing proceeds of attac.. ant to, 106 mode of distribution to, of proceeds of attachment, 106 olerk not entitled to fee for paying small sums to, on judgment summons, 109 JCDOMEMT SCMHONR— where judgment against firm, each member subject to, 76 clerk not entitled to fee for paying to judgment creditor small sums ordered to be paid on, 109 Junior County — on separation of, from senior. Division Courts continue till altered by Judge, &c. , 5 Judge, &c., of, to be tribunal to alter number and limits of divisions in, 6 on separation of, from senior. Judge, &o. , to appoint nnmbc' . limits and extent of divisions, 8 INDEX. 143 JCBIHUICTION — personal aotionfi to 960 and aotiona on oontraot to 9100 may be oombined, 13, 14 provided whole amount claimed does not exceed yiOO 13, 14, 15 finding of court upon claims so joined to be separate, 18, 14,16 if action within jurisdiction of Division Court brought in High Oourt, Division Court costs only will be allowed, 16 unless justified by circumstances, 15 note given for gambling debt or for liquor drunk in a tavern not suable in Division Court, 15 even though in the hands of an innocent holder for value, 16 Jurors — original summons to be served on each of. 111 affidavit of service to be made by bailiff, 111 when clerk entitled to costs of summons and affidavit, 111 costs of summoning, when several cases to be tried by. 111, 112 how appointed, when any of those in original summonses found to be dead or removed, 115, 116 II Landlords and Tenants — right of re-entry granted after rent due for 15 days, 95 with persons under disability, guardian or committee may consent to assignment of leasehold interest, 95 but subject to approbation of Surrogate Judge of County where land situate, 95 how right of mortgagee to distrain limited, 96 LiBM — of innkeeper and boarding-house keeper, 15 Limitations, Statute or—See Statute of Limitations. Liquor — note given for liquor drunk in a tavern not suable in Division Court, 16 even though in the hands of an innocent holder for value, 16 M Master and Servant — agreements made with residents out of Ontario for service there- in to be void, 84 ^; ^5» "»»^. •ne suit, 118 bailiff not entitled to, when he abandons seizure made, 113 bailiff not entitled to, on going to sell goods seized, 119 not allowed to bailiff for ineffectual attempts to effect service, 119 when bailiff not entitled to double mileage, 119, 120 allowed to bailiff for distance actually travelled in arresting a delinquent, 120 amount of, allowed to bailiff in taking a delinquent to prism, 120, 121 not allowed any if r- 'j-oner escapes, 121 allowed when execution withdrawn before seizure, 123 MOBTOAOE — how right of, to distrain for interest, limited, 96 N Necebsabt Witness — what is, 68 New Triaij — what copies of papers clerk entitled to charge for on transmis- sion to Judge in application for, 108 what fee clerk entitled to on order for, 110 what fee clerk entitled to on order refusing, 110 NOTICB- OXDBB — to alter resolutions or orders as to divisions must be given at General Sessions, 1, 3, 8 clerk to keep record of, filed, 11 o form of, dispensing with filing of note before judgment, 22 INDEX. Order — Continued. for new trial, 'ee of clerk on, 110 refusing new trial, fee of clerk on, 110 adjourning hearing of a cause, fee of clerk on, 110 145 e. IB- at Parties— iSa« Defendant)!. PiRTNEBS — may sue and be sued in firm name, 73, 75 parties not bound to sue in firm name, 78, 75 summons may be served on any member of firm, 74. 75 service on member of a foreign firm not binding, 76 affidavit of service to state partner served, li, 75 onler may be obtained directing firm to disclose names of, 74, 75 execution against, 7i, 76, 77 , individual members of firm may be added as defendants, 74, 76 garnishee proceedings must be against individual members of firm, 76 any member of firm subject to a judgment summons, 76 affidavit of service of summons on, 77 Form of demand for name and residence of, 77 Form of declaration in answer thereto, 78 Form of notice of application for order for names of, 78 Form of order for statement of names of, 79 Form of judgment against firm, &o., 79 Paymbnts— in the absence of directions, how to be applied, 36 appropriation of, to save Statute of Limitations, 37 Pbbsonal Actions — may be joined with actions on contract, 13, 14 provided whole amount claimed does not exceed $100, 13, 14 may be brought in Division Court where amount claimed does not exceed 960, 14 Poundage — allowed when note given as payment after seizure, 123 allowed on net proceeds of sale only, 124, 125, 126 not allowed if debt paid before seizure, 124, 125 where allowed to bailiff distraining for rent as well as on execution, 125 not allowed if execution set aside, 125 amount bailiff entitled to on sale of perishable property, 126 where case settled between parties, 126, 127 :W-^TT 146 INDEX. 5S ■•««:? ■3^5 :fta» PoONDAOE — Continued. amount bailiff entitled to when amount of execution paid before sale, 127 bailiff's only remedy for, is on the execution, 127 Primaky Debtor— Form of summons to, (before judgment), 100 Form of summons to, (after judgment), 101 Form of warning to, 100, 102 Prohibition — where order made transferring cause pending application for, defet.dant entitled to costs of application, 15 will not be ordered where Judge finds that article in dispute is a chattel and not part of the freehold, 15 Promissoby Note — in actions on, note to be filed with Clerk before judgment, 21 unless otherwise ordered, or loss or some other satisfactory reason shown, 21 Form of ord*- ,22 Bemote Part of Province — meaning of, 68, 69 Rent— action for, 16 Bbpletin — how value of goods ascertaind in, 103 how bailiff's fee for enforcing summons in, fixed, 115 bailiff's costs of writ of, when issued against two defendants, 116 but goods in possession of one, 116 8 Salary— not subject of garnishment, if amount not due, 29, 30 Senior County— on separation of junior from. Division Courts continue till altered by Judge, &c., 5 on separation of junior from. Judge, Ac, to appoint number, limits and extent of divisions, 8 Set-off — is a statutory defence, 41 Signature — where amount ascertained by. Division Court has jurisdiction up to »200, 14 INDEX. U7 re or, IB ary 116 till ber, 1 up Splitting Cause of Action— separate plaints for several iustalmeuts of rent is a, 16 correctness of this law questioned, 16, 17, 18, 19, 20 Statute of Limitations — plea of, Qaid to be a plea to the merits, 84 rales as to when the time begins to run, 34, 35, 36, 37, 38, 39, 40 in action for fraudulent misrepresentation, 34, 40 solicitor's bill of costs, 35 actions against personal representatives, 35, 40 actions by administrators, 35 subsequent promise to pay, 35, 36 must 1^ unconditional and certain, 35, 36 account stated by executor, 35 promise to administrator before letters of administration granted, 35 different items in runninf; account, 35, 36 promise by one of several joint and several debtors, 86 where portions of claim -ind set-off both barred, 36 note not properly stamped, 36 where a settlement and statement of accounts has been had, 36 creditiMi^ account against plaintiff, 36 admission by executor de iu person who has superintendence entrusted to him "-meaning of, 85 " employer"— what included by, 85 " workman" — meaning of, 85 " packing"— meaning of, 85 when employer liable for personal injuries sustamed by, 8o, ab when railways liable for injuries sustained by, 86 when not entitled to compensation or remedy, 87 amount of compensation to, limited, 87 time limited in which action may be brought by, 87 contract or agreement not to constitute a defence to action, 88 unless some adequate consideration appears, 88 money payable to workmen under penalty imposed by statute to be deducted from compensation, 88 form of notice of injury, 89 how notice of injury to be served, 89 particulars of demand for compensation, 89 assessors may be appointed to fix compensation by Court or Judge, 90 when application for appointment to be made, 90 apphoation to be filed and served, 90 form of application, 90 apphcafcion may be made by both parties to the action, 91 Judge may appoint additional assessors, 91 3S •2:5 'Ml, 3te» • J 152 INDEX. Workmen — Continued. 94 for each asBessor to be deposited with application filed, 11 asBessors to sit vitL Judge, 92 defendant may apply to have separate aotioni c<>.'8olidated, 92 such application to be upon notice, 92 or defendant may apply for stay of proceedings in all actions but one, 92 such application either upon notice or ex parte, 92 order staying proceedings obtained ex parte may be varied or discharged, 92 but plaintifis may proceed for costs incurred, 92 defendant may give notice of admission of liability, 92 amount of compensation for each plaintiff to be found separately, 92 in computing time Sunday not counted, 93 Bules and procedure of Court in absence of special provision to prevail, 93 how Insurance Societies of Railways &c., affected by Act, 94 Writ of Attachment — See Attachment. I CLASSIFIED INDEX OF FORMS. Affidavit- ^^^ ^^^^^ ^^ ^^^^_^^ ^ ^_^^ ^^^^ ^^ .^^^^ ^.^^^^^^ gg of service of summonB ou partnership firm, 77 Application— form of, for appointment of assesBors, JO firm, 78 of game Inspector, 9'.> DaFENOK — withdrawal of, 71 "'"""'" to .t.t,m.n. .howing «».» .«d ™.id.n» of memb«,of ilrm, 77 ''""'"■" r.:Zl» o. wh». d*. g»n....d i. .0, w„e. »......,. HI Where personal action joined with action on contract, 15 against a firm, &e., 79 ^'''""' of apphcation for order to examine sick, aged or infirm witness, 66 n na of application for order for names of members of firm, 78 of injury sustained by workman, 89 of warning to garnishee and primary debtor, ICO, 102 Obdek— „ dispensing with filing of note before judgment, 22 referring matters in dispute to arbitration, 48 for examination of sick, aged, or infirm witness, 67 for statement of names of members of firm, 79 Seauch Warbant— obtained by game Inspector, 99 Summons — to primary debtor (before judgment) and garnishee 100 to garnishee and primary debtor (after judgment), 101