UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY I^ARSWELL CO., Limited Bookbinders. \1:;::\IZ:;, : ^Toronto Publishers etc t> o NT. EVIDENCE AND PRACTICE AT TRIALS IN CIVIL CASES BY R. E. KINGSFORD, MA., LL.B.. TORONTO TORONTO : THE CARSWELL COMPANY, LIMITED, 1911 T Copyright : Canada, 1911, by The Carswkll Co., Limitbd. \SUl PBEFACE. The present Edition contains several changes in the arrangement of the text. The general plan is unaltered. Many references to cases reported since the publication of the last Edition (190S) have been inserted. The favourable reception given to the book has been a great encouragement to proceed with the preparation of this Edition. I hope the book will continue to keep its place as a useful work of reference. R. E. KlN'GSFORD. ONTARIO STATUTES, 1911. The Ontario Statutes for 1011 having been received too late for reference in the text, must be noted as follows: Accidental Fires. The Statute of Ontario 1907 referred to on page 504, Is repealed by chapter 19 Ontario Statutes, 1911. The new statute is not retrospective, which is the only change in effect. Bed of Navigable Waters. By section 2. chapter 6, it is declared that grants of land bor- dering on a navigable body of water, or stream, are presumed not to include the bed of the body of water or stream. Sec- tion 3 saves the rights of persons who have developed water powers, or whose rights have been adjudicated upon. The Act is to be brought into force by Order in Council, which was done 30th -May, 1911. Evidence Act. Sec. 31. See footnote, page 609. Lands to be Subject to Debts. Sub-section of section 34 of chapter 17. Apportionment of Periodical Rents. See chapter 21, Ontario Statutes, 1911. Vexatious Actions, Protection Against. See chapter 22, Ontario Statutes, 1911. Voluntary and Fraudulent Conveyances. See chapter 24, Ontario Statutes, 1911. Trustees and Executors and Administration or Estates. See chapter 49 Ontario Statutes, 1911. Conditional Sales of Goods. See chapter 30 Ontario Statutes, 1911. Compensation fob Fatal Accidents. See chapter 33 Ontario Statutes. 1911. Law of Landlord and Tenant. See chapter 37 Ontario Statutes, 1011. Innkeepers. See chapter 40 Ontario Statutes, 1911. Pawnbrokers. See chapter f>0 Ontario Statutes, 1911. TABLE OF CONTENTS. Page. Preface ill Ontario Statutes, 1911 t Table of contents vii Table of cases xxi Part I RULES OF EVIDENCE. For detail see page 3. Proof and Effect of Documentary Evidence. For detail see page 50. Practice at Trials. For detail see page 10S. Part II. EVIDENCE IN PARTICULAR CASES. Title I. Actions on Simple Contracts. Action on Sale of Real Property 201 Vendor against Vendee 201 Defence 209 Vendee against vendor 213 Action for use and occupation 216 Defence 217 Action for Waste, Bad Husbandry, etc 21S Actions on Bills and Notes 221 Payee v. Maker of Note or Acceptor of Bill 225 Indorsee v. Maker or Acceptor 226 I hrawer v. Acceptor 226 Payee or Indorsee v. Drawer 227 Indorsee v. Indorser 227 Defences to Actions on Bills of Exchange and Promissory Notes 227 viii TABLE OF CONTENTS. PAGE Action on Policy of Insurance 228 Marino Insurance 228 Defences 232 Fire Insurance 234 Life Insurance 237 Defences 238 Benefit Societies 240 Employers' Liability Policies 240 Action on Contract of Affreightment 241 Ship Owner v. Charterer or Merchant 241 Merchant v. Master or Shipowner 243 Shipowner v. Charterer or Merchant 245 Action on Guarantee 248 Defence 248 Action on Warranty 253 Warranty on Sale of Chattels 253 Warranty of Authority 257 Action on Promise of Marriage 257 Defence 258 Action for Dower 258 Action on an Award 200 Defence 201 Action on Solicitor's Bill 202 Defence 203 Action against Solicitor for Negligence 203 Defence 264 Actions by Medical Practitioners 204 I )efence 205 Actions for Wages and Wrongful Dismissal 205 Defence 205 Actions Relating to Sale of Goods 270 Actions for not Accepting Goods 272 Defence 272 Actions for not Delivering Goods 273 Defence 273 Actions for Goods Sold and Delivered 274 Actions for Work and Materials 284 Defence 280 Actions for Money Paid 288 Act ions for Money Lent 290 Actions for Money Had and Received 291 Actions on an Account Stated 294 TAIJLE OF CONTENTS. IT PAGE. Actions against Innkeepers 295 Lodging-house Keeper 298 Actions against Pawnbrokers 298 Action- against Carriers 299 Passenger's Luggage 301 Carriers by Water 303 Letter Carriers 304 Passenger Carriers 304 Title II. Actions on Wkongs Independent of Contract. Action for Negligence 301 Miscellaneous Instances in which Liability for Negligence lias been Discussed 311 Negligent Driving of Carriages 317 Negligent Navigation of Ships 310 Negligent Keeping of Animals 323 Negligent Use of Land 325 Negligent Keeping of Fire or Inflammable Matter ■V21 Negligence of Fellow-servants 328 Negligence of Railway Companies 335 Street Railways 352 Wrongful Act, Default or Neglect Causing Death 353 Action for Nuisance 354 Defence 360 Action for Disturbance of Support of Land 3G2 Action for Obstruction of Light or Air 3G3 Action for 1 disturbance of Way 363 Defence 366 Action for Disturbance of Watercourse 370 Ferry 'M'i Action for Infringement of Copyright 378 Action for Infringement of Trade Mark 384 Action for Infringement of Patent 388 Defence 389 Action for Deceit and Misrepresentation 394 Action for Fraudulent Preference 398 Action for Defamation 418 Defence 418 Action for Wrongful 1 distress 421 Excessive Distress 42 1 Defence 42.") X TABLE OF CONTENTS. Action for Wrongful Distress — (Continued) r-AGE. Irregular Distress 426 Defence 426 Dlegal Distress 427 I (efence 427 Action for Seduction 429 Defence 430 Action for Malicious Arrest and Abuse of Civil Process 430 Illegal Proceedings 433 Action for Malicious Prosecution 437 Defence 440 Action for False Imprisonment 444 Defence 447 Action for Assault and Battery 448 Defence 448 Action for Trespass to Personal Property 448 Defence 449 Action for Mesne Profits 449 Action for Trespass to Land 450 Action for Conversion of Goods 453 Dispositions by Mercantile Agents 458 By Sellers and Buyers of Goods 460 Fixtures 463 Lien of Innkeeper 467 Warehouse Receipts, Bills of Lading 469 Defence 47C Action for Detention of Goods 474 Defence 474 Action for Recovery of Land 474 Action of Replevin 478 Action for Account 479 Defence 479 Title III. Actions on Specialties. Actions on Covenant 480 Actions on Covenants relating to Land 484 (1) Material Issues in Actions on Deeds and Bonds Gen- erally 485 (2) In Actions on Leases or other Conveyances of Real Property 480 Defence 487 TABLE OF CONTENTS. XI PAGE. Action for Broach of Covenant not to Assign 491 As to Trade on Premises and for Breach of Good Hus- bandry, etc 492 To Insure 493 To Repair I'M To Pay Raies and Taxes 495 For Title 490 To Yield up Possession of Premises 497 Action for Double Value 497 Defence 497 Action for Double Rent 498 Action on Bond 498 Defence 499 Action for Penalty r *00 Paet III. DEFENCES. For detail, sec page 501. Appendices. 1. Ontario Evidence Act 602 2. Libel and Slander Act 616 ADDENDA. (Alphabetically Arranged.) Agister. — Whether cattle are at large or not depends on whether they are under restraint or control, irrespective of whether they are on their owner's land or not. O'Connor V. Reid, 13 W. E R. 401. Krenzenbcck v. Canadian Northern R. \V. Co., 13 W. L. R. 414. Auctioneer. — Commission was payable on the property being knocked down to a purchaser at »the auction, notwithstanding that there was no completed sale. Peacock v. Freeman (4 T. L. R. 541), distinguished. Skinner V. Andrews, 54 S. J. 300, 20 T. L. R. 340— C.A. Carrier. — Where a consignor who delivers goods to a common carrier, for carriage by him in performance of his common law obli- gation to carry, does not give notice to the carrier that the goods are dangerous; he must, unless the carrier knows, or ought to know, the dangerous character of the goods, be ttaken impliedly to warrant that the goods are fit for carriage in the ordinary way, and not dangerous. Brass v. Maitland (26 L. J. Q. B. 40; E. & B. 47<>>, and Acatos v. Burns (47 L. J. Ex. 50(1; 3 Ex. D. 282), discussed. Bam field v. Qoole and Sheffield Transport Co. (1910), 2 K. B. 04. Consideration. — If a person makes a contract for a good con- sideration to do something which he was already bound to do, though no one was at the time sure that the duty already existed, the other pai»ty can sue upon the contract. Williams v. O'Kafr. 70 L. J. P. C. 53; i 1910), A. ('. 186; 101 L. T. 702. Copyright — Infringement — List of Names — " Stud Book " — En- fair Use of Book in Preparing another Publication. 'Wcathcrby v. International llorsc Agency and Exchange, Limited, 26 T. L. R. f)27. Damages. — The Judge's charge is not complained of. It seems to me to be fair and raise the proper points for the consideration of the jury, as indicated in Phillips v. London and South Western R. \Y. Co., 5 C. P. D. 280. that is to say. that the jury should take into consideration: («) the expenses occasioned to the plaintiff by the accident; (6) the loss he would suffer by being incapacitated for a certain length of time; (c) the loss which he would sustain by reason of his inability |to earn full wages for such period as XIV ADDENDA. the jury would think lit; and (d) an amount for the suffering and pain he underwent at the time, and also for the future, it might almost be said for the remainder of his life. Farquharson v. British Columbia Electric /,'. W. Co., 14 W. L. R. alt 96. Defamation. — Slander — Imputation of having Committed Of- fence — Arrest — Offence Punishable by Fine. Hellwig v. Mitchell, 79 L. J. K. B. 270 : (1010), 1 K. B. COO; 102 L. T. 110; 26 T. L. R. 1244. Evidence. — Declaration by Deceased Person — Admissibility — Workmen's Compensation. Gilbcy v. (Jrea't Western Railway, 102 L. T. 202. Limitations. Statute of. — Where money has been paid under a mistake of fact, the Statute of Limitations begins to run from the time of such payment except in cases where, previous to the .Judicature Act, 1873, equitable relief only could have been obtained. Brookshank v. Smith (6 L. J. Ex. Eq. 34 ; 2 Y. & C. 58) explained. Baker v. Courage, 79 L. J. K. B. 313; (1910), 1 K. B. 56; 101 L. T. 854. Where both parties were under the mistake when the pay- ment was made, the cause of action is complete on such payment, and no demand for repayment is necessary. Freeman v. Jeffries- (38 L. J. Ex. 116; L. R. 4 Ex. 1S9), distinguished. lb. Payment. — Appropriation of Payments — Intention. Deeley v. Lloyds Bank (1910), 1 Ch. 648; 102 L. T. 556. Principal and Agent. — In order that the principle of " hold- ing out " should in any case of agency be applicable the act done by the agent, and relied upon to bind the principal, must be one which the agent is held out as having a general authority on his principal's behalf to do. Russo-Chincse Bank v. Li Yau Sam, 79 L. J. P. C. 60 j (1910), A. C. 174; 101 L. T. 689; 26 T. L. R. 203. Negligence. — Special contract between express company and shipper — How far to be applied for benefit of railway company. (Inference also to Mcux v. Great Eastern R. W. Co. (1895), 2 Q. B. 387). Allen v. Canadian Pacific R. W. Co., 1 O. W. N. 84, 897. Failure to show manner and eause of death. Beck v. C. 2V. R. R W. C, 13 W. L. R. 140. At common law the owner of animals must keep them from tres- passing upon the lands of other persons, even though such lands are unfenced. Dalziel v. Zastie, 13 W. L. R. 488. ADDENDA. XV Unless an aniiml ia shewn to be harmless l>y its very nature, or to belong to a class that has b me bo by whit may be called "cultivation," it falls within the class of animals :<> to which the rule is, that a maD who owns and keeps one must take the responsi- bility of keeping it safe. I'illburn v. Peoples Palace Co., 25 Q. B. D. 258, f-.llow. m1. Andrew v. Kilgour, 13 W. L. B. 008. Injury to person endeavouring to save life. 8< ymour v. Winni peg Electric R. W. Co., 13 W*. L. K. 566. Res ipsa loquitur. Isbister v. Dominion Fign Co., 13 W. L. R. at page 590. Child climbing fence. Harrold V. TFafney, 67 L. J. Q. B. 771 ; (189S), 2 Q. B. 320; 78 L. T. 7S8 ; 40 W. R. 642. There is a duty imposed on those who set up or instal a machine or send forth an article of a dangerous character towards those who may come near the dangerous object, whether or not there may be any contractual relationship ; and the person so doing will be liable for accident unless it can be shewn that the proximate cause of the accident was the conscious act of another volition. Dominion Natural Gas Co. v. Collins, 79 L. J. P. C. 13; (1909), A. C. 640; 101 L. T. 359 ; 25 T. L. R. 831— P. C. A leading case appears still to be Indcrmaur v. Dames, L. R. 1 C. P. 274, L. R. 2 C. P. 311, in which the position of such an one as the plaintiff is denned to be that of a person invited upon the premises by the owner for the transaction of business in which both are interested. And the duty owing in such a case is there said to be to take reasonable means to guard the invitee from dangers which are not visible and of which he does not know. Xetcton v. City of Braniford, 1 O. W. X. 966. A licensee must at his own risk use premises as he finds them. The duty of the owner is that the licensee shall not be exposed to a trap or other concealed danger, or that the owner 72. Anderson v. Glass, 406. Anderson v. G. T. R.. 342. Anderson v. Walker. 316. Andrew v. Kilgour, (Add. p. xv.) Andrew v. Motley. 104. 1".",. Andrew v. Pacific Coast Coal Mines. 270. Andrews v. Brown. 464. Andrews v. Landers, 12. Andrews, Re. 584. Anglehart v. Rathier, 42S. Anglesey, hi re. 195. Anglo-Canadian Land Co. v. Gordon, 202. Anglo-Canadian Music Publishers As- sociation v. Dupuis, 3S4. XXI 1 TABLE OF CASES. Anglo-Canadian Music Publishers As- sociation v. Suckling, ."> S L.'. 383. Anglo-Canadian v. Winnifritb, 382. Angus v. Clifford, 530. Angus v. Smith, 161. Annis v. Corbett, -190. Annis v. Witt, 527. Annot Lyle, The, 14. Anon, 60. Ansley v. Bero, 20. Ansley v. Birch, 143. Appleby v. Meyers, 286. Applegarth v. Rhymal, 374. Arbuthnot v. Dupas, 277. Archibald v. Iliibley, 54. 413. Archibald v. McLaren, 443, 443. Archibald v. McNerhanie, 533. Ardan Steamship Co. v. Weir, 245. Ard ill v. Citizens, 230. Argles v. McMath, 463. Argentino, The, 320. Armitage v. Vivian. 295. Armour v. Robertson, 00. Armstrong v. Armstrong, 11. Armstrong v. Auger, 211, 211. Armstrong v. Ausman, 588. Armstrong v. Canada Atlantic R. W. Co., 357. Armstrong v. Hemstreet, 573. Armstrong v. Little, 84. Arnold v. Caldwell, 41. Arnold v. Playter, 270. Arnold v. White, 300. 403. Arthur v. G. T. R., 373. Artisans Land and Mortgage Corpor- ation, In re, 503. Asbestos and Asbestic Co., The, v. Durand, 332. Ashby v. Bates, 175. Ashdown v. Manitoba Free Press Co., 54, 421. Ashfield v. Edgell, 453. Ashby v. Brown, 403. Ashmore v. Cox, 547. Ashworth v. Wells, 255. Aspbury v. Aspbury, 555. Assheton-Smith v. Owen, 102. Aston. }].r parte. K',.". Atkinson v. Beard, 49.">. Atkinson v. Bell. 285, 455. Attack v. Bramwell, 427. Attorney-General v. Gooderham, 40. Attorney-General v. Hitchcock, 107. Attorney-General v. McNulty, 575. Attorney-General v. Niagara Falls In- ternational Bridge Co., 302, 541, 545. Attorney-General v. Windsor, Dean of. 31. Attorney-General of Quebec v. Adams, 370. Attorney-General of Quebec v. Fraser, 370. At trill v. Piatt, 40. 367, 373. Auer Incandescent Light Mfg. Co. v. Dresche, 1, 393. Augusl KorlT. The. 322. Aura, The, 240. Austen v. Collins, 173. Austin v. Great Western R. W. Co., 341. Australasia. Bank of. v. Nias, 73. Avon .Marine Ins. Co. v. Barteaux, 233. Ayer v. Murray, 225. B, Bacon v. G. T. R., 343. Badcock v. Freeman. 308. Baddeley v Earl Granville. 297, 309. Badgley v. Dickson, 285, 510. Badische Anin v. Schott, 541. Badische v. Basle, 537. Bagel v. Miller, 278. Baglehole v. Walters, 282. Bagshawe v. Roland. 512. Bagueley v. Hawley, 253. Baily v. Clarke, 372. Bailey v. Gillies, 249. Bailey v. Jamison, 366. Bain v. Anderson, 268, 280. Bain v. Brand, 403. Bain v. Fothergill, 214. Bain v. Malcolm, 410. Baird v. Wilson, 309. Baker v. Atkinson, 490. Baker v. Courage, 561, (Add. p. xiv.) Baker v. Dewey, 39. Baker v. Fisher, 403. Baker v. Holtzapfel, 217. Baker v. Snell, 325. Balch & Peppard v. Rombough, 142, 331. Baldwin v. Kingstone, 291. Baldwin v. Wanzer, 487, 492. Balfour v. Crace, 249. Balfour v. Ellison, 412. Ball v. Crompton. 388. Ball v. Dunsterville, 85. Ball v. Grand Trunk II. W. Co., 328, 340. Ball v. Tenant. 400. Ballantyne v. Watson, 538. Palme v. Hutton, 448. Bamfield v. Goole and Sheffield Trans- port Co., (Add. J), xiii.) Bamfield v. Massey, 420. Bank of British North America v. Jones, 222. Bank of British North America v. McElroy, 147. Bank of British North America v. Rattenburg, 410. Bank of British North America v. Simpson. 206, 534. TABLE OP I \~ l 3. XXlll Hank of British North America v. Western, 230. Bank of Hamilton v. Shepherd, 228. Bank <>f Montreal v. Cornish, 7 I Bank of Montreal v. DeLatre, 506. Bank of Montreal v. Exhibil and Trading Co., 224. Bank of Montreal v. Hartman, 195. Bank of Montreal v. Reynolds, 223. Bank of Montreal v. Snyder, 221. Hank of New S. Wales v. Goulburn Valley Butter Factory, 519. Bank of Nova Scotia v. Chipman, 8. Bank of .Nova Scotia v. Fish, 187. Bank of Ottawa v. Wilton. 284. Bank of Upper Canada v. Smith. 222. Banner, Ex parti . 528. Bannerman v. Barlow, 283. Bannerman v - Beard v. Credit Valley, 351. Beaton v. [ntelUgencer, 420. Beattie v. Dinnick, 240, 250. Beattie v. Hulse, 464. Beattie v. Wenger, 403, 411. Beatty v. Davis, 375. Beatty v. Fitzsimmons, '■'>-■ Beatty v. Rumble, 440. Beaudoin v. Dominion Clothing Co., 494. Beaumont, In re 528. Beaumont v. Ewbank, ."'JS Beavan v. McDonnell, 552. Becher v. Woods. 28. Becherer v. Asher, 277. 270. Bechuanaland Exploration Co. v. Lon- don Trading Bank, 17. Beck v. C. N. K. W. Co. (Add. p. xv.) Becker v. Canadian Pacific K. W. Co., 34S. Beckett v. Tower Assets Co., 27. Bedingfield v. Onslow, 355. Bedson v. Smith, 506. Beech v. Jones, 160. Beemer v. Beemer, 43s_ Peer v. Stroud. 376, 377. Begg v. Howlett, 222. Belanger v. Larocque, 432. B( Ifast, etc., v. Keys. 301. Pelfast Rope Works Co. v. Boyd. 370. Belford v. Haynes, 360. Bell v. Palls. 532. Bell v. The Corporation of Quebec, 370. Pell v. Flintoff, 128. Bell v. Golding. 367, 368. Bell v. Irish. 425, 427. Bell v. Macklem, 204, 397. Bell v. Walker. 578, 580. Bell v. Winnipeg Electric Street R. W. Co.. 311, 352 Bella Mudge, The, 246. iv v. Badgerow. 480, r>70. Bi llamy v. Panics. 496. v. Shearman. 523. \ hur, 303. • Id and Steve] s, Be, 64. P.. d jam in, In rr. '2'.K XXIV TABLE OF CASES. Benlaiig, The, 322. Renniohr. The, 15. Benneti v. Parker, r>!»t>. Bennina: v. Atlantic and N. W. Ry. Co., 2ti2. Bensley v. Bignold. 541. Bentinck, In re, 524. Bentinck v. Bentinck, 524. Berkeley Peerage Case, 34, 36. Berkley v. Hardy, S5. Bernard v. Walker, 24. Bernardin v. North Dufferin, 61, 514. Bernhart v. McCutcheon, 54. Berrie v. Woods, 4S9. Rerrlnger v. Great Western R W. Co., 341. Bertram v. Pendry, 585. Berwick v. Horsfall, 18. Bessala v. Stern, 41. Betts v. Farewell, 195. Betts v. De Vitre, 388. Retts v. Venning, 159. Rewley v. Atkinson, 37. Reynon, In the goods of. 33. Rickett v. Morris, 370. Rickle v. Mathewson, 293. Ricknell v. Grand Trunk R. W. Co., 343. Ricknell v. Peterson, 392. Riddle v. Rond, 274. Rienvenu v. Lacaille, 18. Rigelow v. Roxall, 257. Bigge v. Parkinson, 254. v. lloddinott, 54.'!, 576. Binkley v. Dejardine. 128. Bird v. Higginson, 175. Rirdsell v. Johnson, 28. •' Birgitte," The, v. Forward, 320 " Birgitte," The, v. Moulton, 320. Birt v. Rarlow, 94. Bishop v. Howard, 217. Bishop v. Stewart, (Add. p. xix.) Black v. Allen, 261. Black v. Besse, 168. Black v. Christchureh Finance Co., (Add. p. xvi.) Black v. Coleman, 424. Black v. Gesner, 228. Black v. Irnpcri.il Book Co., 380. Blackburn v. Smith, 214. Blackniore v. Bristol and Exeter Rail- way, 307. Rlackmore v. Toronto Street R. W. Co. (Add. p. xvi.) Blacquh re v. Corr, 152. " Blairmore," The. 593. Blake v. Done, 8. Blake v. Midland It. W. Co., 353. Blake v. Wolfe. 326 Rlakely v. Could. 406. Rlakely v. Muller, 546. Rland v. Smith, 107. Rlayborough v. Rrantford Gas Co., 354. Bletcher v. Rurn. 185. Blofield v. Payne. 385. Blois v. Midland R. W. Co., 181. Bloomfield v. Hellyer, 5S7. Bloxam v. Sanders, 455. Bluett v. Tregowning. 156. Blyth v. Birmingham, 306. Bodwell v. McNiven, 212. Bogg v. Midland R. W. Co., 174. Roice v. O'Loane, 555. Rolch v. Smith, (Add. p. xvi.) Roldrick v. Ryan, 583. 584. Rolin, Re, 540. Rolton v. Gladstone, 72. Rond v. Conmee, 433. Rond v. Toronto R. W. Co., 352. Ronelli, Re, 62. Ronin v. Robertson, 66. Ronnard v. Dott, 544. Roosey v. Whight, 3S0. Rooth v. McLean, Re, 210. Rooth v. Prittie, 269, 534, 537. Roots v. Grundy, 436. Rottomley v. Nuttall, 277. Roulton v. Rlake, 495. Roulton v. Gladstone, 72. Rourassa v. Canadian Pacific R. W. Co., 348. Rourne v. Swan and Edgar, 394. Routhillier v. Central Vermont R. W. Co., 353. Rowden v. Henderson, 30. Rowden v. Roscoe, 424, 448. Rowen v. Hall, 434. Bowen v. Owen, 595. Bower v. Hill, 366. Rowerman and Hunter, Re, 526. Rowes v. Foster, 39. Rowes v. Sutherland, 111. Rowker v. Rurdekin, 85. Rowles v. Raker, 520. Rowman v. Hodgson, 82, 104. Bowman v. Yielding. 461. Roxios v. Goblet, 4T.t. Royd v. Robinson, 497. Boyd v. Simpson, 43. Boyle v. Grassick, 512. Roy no v. Boyne, 240. Boynton v. Boyd, 585. Bradenburg v. Ottawa Electric R. W. Co., 181. Bradford v. O'Brien, 215. Bradford v. Pickles, 540. Bradlaugb. v. Newdegate, 541. Bradley v. Bradley, 546. Bradley v. Elliott, 200. Bradley v. James, 38. Bradley v. Ricardo, 1G3. Bradshaw v. Widdrington, 562. Brady v. Sadler, 78. Brady v. Warren, 325. Brandt v. Dunlop Rubber Co., 522. Rrantford S. It. Co. v. Huffman, 499. TABLE OF CASES. XXV Brass v. Afaitland, 243, (Add. p. xiii.) Brasserl v. McEwan, 279, 471. Branch v. Roth. 436. Brazier's Case, 1 10. I'.rrrn v . Duckett, 293.^ Brennan v. Cameron, 85. I'.n niiock v. Eraser, 20. Bret v. Beales, 60. Breton v. Cope, 47. Brett v. Foorsen, 587. Brewster v. Canada Co.. < ;4 . Briggs v. Grand Trunk 11. W. Co., 305. Briggs v. McBride, 33. Briggs v. Seinmcns, 'M>S. Bright v. Hutton, 513. Bristol and West of England Land Co. v. Taylor, 107. 250, 251, 5! Mi. British Holmes Assurance Corporation v. Patterson, 572. British Linen Co. v. Cowan, 15, 48. British Linen Co. v. McEwen, 75, 529. Brittain v. Lloyd, 289. Britton v. Milsom, 2^7. Brocas v. London, Mayor of. 59. Brock, Township of, v. Toronto and Nipissing R. W. Co., 351. Brocklebauk v. Sugrue, 229. Bromet v. Neville, 206. Bromley v. Brunton, 528. Bromlev v. Smith, 552. Brook, 'Ex parte, 488. Brooksbank v. Smith, 561, (Add. p. xiv.) Brophy v. North American Life As- surance Co., 239. Bross v. Iluber, 59. Brown v. Bathurst Electric, 372. Brown v. Brandt, 297. Brown v. Brown, 104. Brown v. Browne, 281. Brown v. Bushey, 365. Brown v. City of Toronto, (Add. p. xvi.) Brown v. Cockburn, 2.~>7. Brown v. Dalhy. A'-'M Brown v. Davidson. 14. Brown v. Deacon. 22. Brown v. Eastern and Midland R. W. Co., 326. Brown v. Edgington, 254. Brown v. Grove, 407. Brown v. Hawkes, 44:'>. Brown v. I lowland. 26. Brown v. Jones, 505. Brown v. Lennox, 191. Brown v. Maltby. 125. Brown v. McLean. ."'77. Brown v. McKinally, 292. Moore, 433. Morrow, 105, 107 Moyer, 420. Overbury, 516. Porter, 143. Shepherd, 40, 317 Stuart, 184 General Brown v. Brown v. Brown v. Brown v. Brown v. Brown Brown v. Brown v. Toronto General Hospital, 311. Brown v. Toronto and Nipissing R. W. Co.. 369. Brown v. Wood, 141. Browne, Re, 22. Browne v. Dunn. 537. Browne v. Murray. 17S. Brownell v. Black, 40. Brownlie v. Campbell, 2(>4. Bruce v. Bruce, 81. Bruce v. Jones, 231. Bruce v. Tolton. 538. Brummell v. Wharin, •">.">< ">. Brundage v. Howard. 505. Bruner v. Moore. 51 8. Bryan v. Quebec Bank. 222. Bryant & Barringham's Contract, In re, 208. Bryce v. Loutit. 355 Bryce v. Salt, 548. Brydon v. Stewart, 328. Bryson v. Graham. 279. Buccleugh, Duke of, v. Metropolitan Board of Works. 1-47. Buchanan v. Campbell, 577, 580. Buchannan v. McMullen. 450. Buchannan v. Young, 32S. Buckly v. Beigle, 490. Building and Loan Association v. Papps, 5S0. Buhner v. Hunter, 401. Bunnell v. Gordon, 1 <4. Bunt in v. Georgin, 521. Burberrys v. Cording, 3SS. Burchell v. Wilde, 51 1. Burford v. Oliver, :'.iV Burgess v. Gray, .">-"V Burgoyne v. Moffatt, 431. Burke v. Blake, 598. Burleigh v. Stibbs, 16. Burn v. Miller. 285. Burnet v. Hope. 2f>7. Burnham v. < ran ey, 363. I '.urns v. Davidson, t!3, 04. Bums v. McKay, 403. Burns v. Wilson, 508. Bur] v. Carville. 12, 90. Burrill v. Sanford. 181. Burroughes v. Payne. 4.~>.">. Burroughs v. The Queen, 479. Burrowea v. Cairns, 220, 598, 599. Burrows v. Gates, 217. Burrows v. Leavens, 108. Burrows v. Rhodes. '\'M Bun on v. Plummer. 170. Burwell v. London Free Press, 420. XX VI TABLE OF CASES. Bnsh v. Fry, 4(52. Bush v. Sanson, 3S4. Bush v. McCormack, 419. 421. Bush v. Park, 438. Bustros v. White, 136. Butler v. McMicken, 555. Butler v. Mountgarret, 34. Butterley Co. v. New Hucknall Col- liery Co., 23. Buxton v. Cornish, 1G. Byrne v. Boadle, 306. Cabana v. McManamy, 149. Cadeby, The, 176. Cadge, In re, 104. Cadwell v. The " C. F. Bielman," 320. Cain v. Uhlman, 39. Cairns v. Can. Nor. R. W. Co., 309. Cairo, The, 247. Calcraft v. Guest. IS. Calder v. Dobel, 277. Caldwell v. Stadacona, 236. Califf v. Wilson, 449. Callaway v. Piatt, 562. Callander v. Dittrich, 73. Callieter v. Bischoffstein, 52S. Cameron, Re, 238. Cameron v. Barnhart, 29. Cameron v. Cameron, 589. Cameron v. Carter, 208. 211. Cameron v. Domville, 273. Cameron v. Gibson, 587. Cameron v. Hutchinson, 32, 582. Cameron v. Ottawa Electric R. W. Co.. 122. Cameron v. Overend, 419. Cameron v. Spiking, 205. Cameron v. Tate, 507. Cameron v. Young, 309, 494. Campbell v. Campbell, 16, 552. Campbell v. Edwards, 570. Campbell v. General Mining Associa- tion, 334. Campbell v. Great Western R. W. Co., 350. Campbell v. Linton, 185. Campbell v. Loader, 179. Campbell v . McKerricher, 206, 266, 286. Campbell v. Morrison, 253. Campbell v. Patterson, 412. Campbell v. Shields, 220. Campbell v. Twemlow, 58. Canada Atlantic R. W. Co. v. Hen- derson. 342. Canada Atlantie R. W. Co. v. Hurd- man, 309, 347. Canada Atlantic v. Morley, 37. Canada Bank Note Co. v. Toronto R. W. Co., 285, 534. Canada Paint Co. v. Trainor, 307. w. Co. V City w. Co. V. Law- w. Co. V. Mea- Canada Permanent Loan and Savings Co. v. Todd, 584. Canada Powder Co. v. Burley, 573. Canada Publishing Co. v. Gage. 382. Canada Sugar Refining Co. v. Furness- Withy Co., 529. Canadian Bank of Commerce v. Crouch, 4(!5. Canadian Bank of Commerce v. Mc- Millan, 1S7. Canadian Bank of Commerce v. Per- ram, 210. Canadian Fairbanks Co. v. Johnston, 204, 593. Canadian Fire Insurance Co. v. Rob- inson, 63, 236. Canadian Lake and Ocean Navigation Co. v. The "Dorothy." 320. Canadian Niagara Power Co., Be, 4X2. Canadian Pacific R. W. Co. v. Chali- foux, 345. Canadian Pacific R. of Quebec, 290. Canadian Pacific R. W. son, 345. Canadian Pacific R. dows, 204. Canadian Pacific R. W. Co. v. Parish of Notre Dame de Bonsecours, 351. Canadian Pacific R. W. Co. v. Roy, 346. Canadian Pacific R. W. Co. v. Toron- to Corporation, 497. Cannan v. Wood, 573. Capital and Counties Bank v. Rhodes, 567. Capper, Ex parte, 214. Car v. King, 279. Careau v. Montreal Street R. W. Co., 360. Carey v. City of Toronto, 369. Carey v. Goss, 385. Carpenter v. Buller, 46. Carpenter v. Carpenter, 543. Carpenter v. Wall. 161. Carr v. Corfield, 411. Carr v. Dunn, 495. Carr v. Foster, 365. Carr v. Fracis Times & Co., 67. Carradice v. Currie, 410. Carrick v. Johnston. ISO. Carrigan v. Carrigan, 105. Carroll v. Beard, 473. Carrol] v. Corporation of Plymton, 500. Carrol v. Freeman, 333. Carscallen v. Moodic, 407. ( "arte v. Dennis, 89. Carter v. Carter, 526. Carter v. Grassett, 303. Carter v. Hamilton, 389. Carter v. Long & Bisby, 462, 479, 512. TABLE OF CAH>. XX vu Cartwright, In re, 218. Cartwrighl v. Gray, 360. Carvell et al. v. Wallace, 280. Carvick v. Blagrave, 487. Case; v. Canadian Pacific R. W. Co., 342. Casey v. Banlon, 208. Casey v. Jordon, 581. Cashin v. Perth, 252. Casta Lim. v. Cash, 387. Cassaboglan v. Gibb, 509. Casselman v. Casselman, 482. Casselman v. Hersey, 457. < 'assels v. Stewart, 515. Castor v. Township of Oxbridge, 355. Castrique v. (mrie, 5!>, 72, 74. < JasweU v. ( !oare, 255. Cataraqui Bridge Co. v. Holconib, 319. Catt v. Howard, 170. Cattlin v. Barker, 159. Cavalier v. Pope, 812, 494. < 'avail v. Stewart, 73. Cavanagb v. Park. 335. Cawkwell v. Russell, 8. Central Bank v. Osborne, 504. Central Klondyke Gold Mining and Trading Co., In re Savigny's Case. 48. Central Vermont v. Dube, 539. Ceylon Coaling Co. v. (Goodrich, 247, 248. Chadburn v. Moore, 203. 511. Chamberlain v. Chamberlain, 504. Chamberlain v. Torrance. 56, 159. Chambers v. Bernasconi, 38. Chanter v. Hopkins. 254. Chapel v. Iliekes, 287. Chapman v. Bishop, 22.*'.. Chapman v. Smethurst, 224. < 'liappell v. Purday, 51. Chaproniere v. Mason. 10. Charbonneau v. Loriinier, 548. Charlton v. Brooke. ~>'2~. Charnock v. Court, 435. Charnock v. Dewings, 167. Ohartrand v. Dessoaard, 483. Chase v. McDonald. 323. Chase, The. 319. Chastley v. Ackland, 363. Chater v. Beckett. 240. Cheek v. Roper, 227. Cheese v. Keen, 263, 562. Cheesman v. Batheway, 188. Cherry v. Heming, 85. Chesley v. Murdock, 145. ('lies r v. N'oves. 7 s . Cllesney v. St. John. 291. Chicago Life Co. v. Duncombe, 241. Chinese Empire Reform Association v. Chinese Newspaper Publishing Co., 422. Chinnock v. Hartley Wintney Rural Council, 365. Chinnock v. Marchioness of Ely, 205. Chippendale v. Masson, 177. Chisholm v. Herkimer, 549. Chisholm v. Proudfoot, 282. ( Ihittagong, The, 322. Christian v. St. Joseph, 246. Christie v. Burnett, 22. 279. ( Ihristie v. Davey, 362. Christie v . Griggs, 304. Christie and Toronto Junction, In re, 137, 147. Church v. Linton, 382, 383. Church v. Perkins, l< -{ .>. Churcher v. Bates, 450. Citizens In-. Co. v. fluxion. 251. Citizens Life Ins. Co. v. Brown, 422. City and South London R. W. Co. v. London County Council, 590. City of Kingston v. Drennan, 350. City of Lincoln v. Smith, 321. City of Montreal v. Gosney, 331. City of Montreal v. Ryan, 172. City of Pekin, The, 323. City of Toronto v. Jarvis, 582. City of Victoria t. British Columbia ' Electric R. W. Co., 590. Civil Service Co-operative Society v. General Steam Navigation Co., 199. ('landman v. Dickson, 12S. Claridge v. South Staffordshire Tram- way Co., 313, 523. Clark v. Army and Navy Co-operative Society, 283. Clark v. Baillie, 515. Clark v. Bonnycastle, 79, 375. Clark v. Eckroyd, 2!>1. Clark v. Grand Trunk R. W. Co.. 461. Clark v. Great Western R. W. Co., 461, 467. Clark v. Hagar, 544. GOO. Clark v. Hamilton. 295. Clark v. Hamilton and Gore Mechan- ics' Institute, 61. Clark v. Imp. Gas Co., 60. ( 'lark v. Joselin, 569. Clark v. McClellan. 523. Clark v. Robert-op. 481. Clark v. Pose. 281. Clarke v. Bradlaugh, 500. Clarke v. London General Omnibus Co., 354. Clarke v. Saffery, 154. Clarke v. Scottish Imp., 229. Clark-' v. Union Fire Ins. Co., Cas- ton's Case. <;l Clarke v. Union Stock Underwriting Co., 224. Clarke v. Ward. 15. Clarkson v. Attorney-General of Can- ada, 402. Clarkson v. Kitson, 601. Clarkson v. Noble, 537. Claydon v. Greene. 07. XXVI 11 TABLE OF CASES. Clayton v. Canadian Northern R. W. Co.. 348. Clayton's Case. 519, 573. Clayton v. Corby. 366. Clayton v. Patterson, 141. Cleave v. Jones, 561. Cleaver v. North of Scotland M. Co., 201. Clendinnin^ v. Turner, 210. Clifford v. Hunter, K'.T. Clifford v. Logan, 450, 5SS. Clinton Wire Cloth Co. v. Dominion Fence Co., 389. Clough v. London and North Western R. W. Co., 215. Clouston v. Corry, 173. Clow v. Clow, 219. Coate v. Terry. 536. Coates v. Bacon, 569, 601. Coates v. Coates, 206. Cobban v. C. P. R., 300, 344. Cobbett v. Hudson, 167, 177, 179. Cochran v. Chipman et al., 187. Cockrane, In re, and A. O. U. W., 240. Cochrane v. Moore, 540. Cochrane v. Rymill, 456. Cockman v. Mather, 67. Cockshutt Plow Co. v. Cowan, 473. Codd v. Delap, 75, 529. Coe v. Wise, 361. Coffey v. Scane, 431. Cohen v. S. E. Ry. Co., 301. Colbert v. Hicks, 431. Cole v. Cook, 56S. Cole v. Hubble, 430. Cole v. London Mutual, 237. Colo v. Pope, 396. 570, 590. Cole v. Porteous, 28. Cole v. Sherard, 78. Coleman, Re, 467. Coleman v. City of Toronto, 186. Coleman v. McDermott, 281. Coles v. Coles, 104, 153. („]1 v. Toronto R. W. Co., 332. Collen v. Wright, 257, 509. Collier v. Clark, 174. Collier v. Michigan Central R. W. Co., 350. Colling v. Treweek, 16. Collins v. Barss, 559. Collins v. Baynton, 86. Collins v. City of St. John, 182. Collis v. Cater, 380. Colonial Bank of Australia v. Mar- shall, 518. Colpen v. Callaghan, 478. f'olquhoun, Re. 525. fokjuhoun v. Seagram, 409. f'oli man v. Brown, 87. Colver. v. Shaw, 570. Colver v. Swayze, 404. Commarford v. Empire Limestone Co., ?»34. Commercial Bank v. Great Western R. W. Co., 60. Commercial Bank v. Wilson, 412. Confederation Life Association v. Kin- near, 551. Confederation Life Association v. La- batt, 284. Confederation v. O'Donnell, 237. Conmee v. Securities Holding Co., 515. Connecticut Mutual Life Ins. Co. of Hartford v. Moore, 187. Connell v. Boulton, 496. Connell v. Hickock, 584. Connolly v. Grenier, 244. Connor-Ruddy Co. v. Robinson-Whyte Co., 453. Connors v. Hope, 65. Consolidated Car Heating Co. v. Came, 389. Consolidated Co. v. Curtis, 457. Consolidated Exploration and Finance Co. v. Musgrave. 544. Consolidated Plate Glass Co. v. Cas- ton, 314. Constantinides v. Welsh, 565. Contract Corp., Ex parte, 60. Conway v. Ottawa Electric R. W. Co., 390. Cook v. Christie. 56. Cook v. Patterson. 149. Cook v. Shaw, 541, 542. Cook v. Tate, 453. Cook v. Thomas, 256, 284. Cooke's Case, 165. Cooke v. Edwards, 220. Cooke v. Midland Great Western Ry., 326. Coombes v. The Queen, 305. Cooper v. Cooper, 551. Cooper v. Dawson, 169. Cooper v. Marsden, 38. Cooper et al. v. The Molsons Bank, 48. Copeland-Chatterson Co. v. Hatton, 388. Copin v. Adamson, 73. Copp v. Etter, 186. Corbet v. Johnston, 285. Corby v. Hill, 358. Corey v. Owners, 519. Corey v. Thames Ironworks Co., 274. Coristine v. Menzies, 505. Corneill v. Abell, 584. Cornford v. Carlton Bank, 441. Cornwall v. Henson, 204. 212. 593. Cornwall, Town of, v. Durochie, 356. Corporation of East Nissouri v. Cogs- well, 136. Corridan v. Wilkinson, 420. Cossette v. Dun, 189, 314, 421. Cossman v. British American Ass. Co., 233. Cossman v. West, 233. Costello v. Hunter, 258. TABLE OF CASES. XXIX Cotter v. Osborne, 435. Coach v. Desjardins, 545. Coughlin v. Gillison, '.'■"'. Coulson v. Disborough, 58. Coulter v. Coulter, 266. County of Bruce v. Cromar, 500. County of Frontenac v. Breder, 253. County of York v. Rolls, 377. Coupe v. Maddick, 523. Courian v. B. & O. Nav. Co., 304. Court v. Scott, 520. Courteen v. Touse, 153. Cousineau v. City of London Fire Ins. Co., 571. Couston v. Chapman, 2S3. Coventry's Cms., 18. Cowan v. North British Railway, 343. Cowen v. Truefitt, 69, 207. Cowling v. Ely, 43. Cox v. Adams, . r >0»;. Cox v. Burbidge, 318 Cox v. Couveless, 16, 179. Cox v. English. Scottish and Austra- lian Rank, 44:5. Cox v. Gunn, 431. Cox v. Witt, 142. Cox v. Worrall, 411. Coyne v. Lee, 5S4. Crabbe v. Little, 214. Crace, In re. 249. Craig v. Beardmore, 275. Craig v. Great Western R. W. Co., 305. Craig v. Templeton, 2G0. Crain v. Bapple, 212. Craiu v. Ryan, 310. Cram- v. Ayre, 137. Crane v. Clarke, 158. Crane v. Hunt. 200. Crathern v. Bell, 250. Crawford v. Bugg, 210, 491. Crawford v. Canada Life Assurance Company, 521. Crawford v. City of Montreal, 40. Crawford v. McLaren, 444. Crawford v. Upper, 318. Crease v. Barrett, 35, 37. Credit Foncier v. Lawrie, 4S0, 4S3. Credits Gerundeuse v. Van Weede, G4. Creighton v. Fretz, 222. Creighton v. Pacific Coast Lumber Co., 280. Crewe v. Mottershaw. 32S. Crewson v. Grand Trunk R. W. Co., 374, 377. Cribb v. Kynoch. 320. Crockett v. Campbellton. 1S2. Crone v. Crone, 197. 198. Cross v. Douglas, 211. Cross v. Richardson, 175. Crossfield v. Gould, 209. Crossley v. Lee, 4'V4. Crosson v. Biglely, 541. Crouse v. l'ark. 196. Crown Rank v. London Guarantee & Accident C< „ 241. Crumbie v. Wellsend Local Board, 362. Cuba, The, v. McMillan, 319. Cudney \. Giles, 278, 541. Cuff v. Frazee Sun:.-'.- and Cartage Co.. 138. Cuff v. Roberts, 282. Cull v. Wakefield, 315. Cullen v. McPherson, 221. Cullerton v. Miller, 373. Culley v. Taylerson, 470. Cumberland v. Kearns, 207. Cundell v. Pratt, 165. Cundv v. Lindsay. 27S. Cunliffe v. Sefton, 82, 83. Cunningham v. Buchannan, 519. Cunnin-ham v. G. T. R. Co.. 305. Curran v. Grand Trunk Railway Co., 350, 351. Currie v. Currie, 12. Curtice v. London City and Midland Bank, 104. Curtis v. Greated, 16. Curtis v. Spitty. 489. Curtis v. Wheeler, 174. 47s. Cuvillier v. Browne, 204. Cyr v. Sanfacon. 74. D. Dagenham, In re, 204. 503. Dagenham (Thames) Dock Co., In re, 212. Daily v. Stevenson, 281, 287. Daines v. Hartley, 416. Dalby v. Humphrey, 198. Daley v. Marks. 533. Dalrymple v. Scott, 274. 281, 538. Dalziel v. Zastie, (Add. p. xv.) Dame v. Slater 208. Dancey v. G. T. R.. 305. Daniel v. Grand Trunk R. W. Co., 340. Daniel v. Metropolitan Rv. Co., 312, 341, 346, 349. Daniels v. Davidson. 580. Daniels v. Potter, 45. Darby v. Crowland, .".77. Darby v. Ouseley, 07. 170. Darling v. Hitchcock. 98. Davidson v. Fraser, •"<•".. Davies v. Davies, 157. Davies v. Fit ton. 571. Davies and Mills, 239. Davies v. Thomas, 470. D' Avignon v. Jones. 530. Davis ■■ . Burrill, 495. Davis v. Canadian Pacific Rv. Co., 348. TABLE OF CASES. Davis v. Canada Farmers Mutual In- surant' Co., 62, 348. Davis v. Davis, 499. Davis v. Hewitt. 541. Davis v. McSherry, 23. Davis v. Minor, 397. Davis v. Pitchers, 496. Davis v. Reilly, 224. 504. Davis v. Shaw, I'm'. Davis v. VanNorman, 87. Davison v. Kinsman, 451. Davy v. Iladdon, 96. Dawson v. Dawson. 11, 600. Dawson v. Gregory, 75. Dawson v. Morgan, 2s!). Dav v. McLea, 505. 555. Dean v. .McCarthy. .'52s. Dean v. Ontario Cotton Mills Co., 88. Dean v. White, 45. Dear v. Knight, 163. DeBlacquiere v. Pecker, 506. Dedrick v. Ashdown, 466, 587. Deeley v. Lloyds Bank, (Add. p. xiv. ) Deep Sea Fishers Co., Ex parte, 571. Deering v. Winchelsea EL, 289. De Palbe, In re, 464. Defoe, Re, 28. Dehart v. Dehart, 106. De Kuyper v. Van Dulken, 384. Delamarter v. Brown Brothers, 484. Delaney v. C. P. R.. 559. De Lassalle v. Guildford. 215. 256, 473. Delesdernier v. Burton, 267. Delta, The, 73. De Medina v. Norman. 208. Demorest v. Midland, 590. Dench v. Dench, 37. Denhem v. Patrick. 270. Denison v. Maitland, 478. Denmark v. McConaghey, 141, 187. Derry v. Peek, 215. 394, 509. 530. Desaulniers v. Hird, 441. Deschampes v. Berthiaume, 316. Desehenes v. Langlois, 1G9. Devine v. Griffin, 205. Devins v. Royal Templars, 240. Devlin v. Crocker. 17."i. Devlin v. Jeffrey's Trustees, 326. Dewar v. Sparling, 545. Dewe v. Waterbury, 12. Diamond v. The St. George Lime Co., 290. Dibbins v. Dibbins, 591. Dibden v. Skirrow, :;7s. Dick v. Fraser, 555. Dickson v. Carnegie, 376. Dickson v. Jacques, 534. Dickson v. Jarvis. 396, 506. Dill v. Wilkin s, 4.". 266. Dillaree v. Doyle. 41;.". Dillingham v. Wilson, 135. Dingman v. Harris. 287, 566. Dingwall v. McBean, 72, 465, 466, 515. Dini v. Farquier, 354. Disher v. Clarris, 000. Dixon v. Clarke, 595. Dixon v. Cross, 490, 5S1. Dixon v. Richelieu, 301. Dixon v. Yates, 455. Doane v. McKenny, 33. Dobbin v. Dobbin, 259. Dobell v. Furness- Withy Co., 529. Doe d. Auldjo v. Hollister, 555. Doe d. Bather v. Brayne. 176. Doe d. Bord v. Burton, 476. Doe v. Connolly, 172. Doe d. Des Barres v. White, 451. Doe d. Fleming v. Sommerton, 477. Doe d. Hindly v. Rickerby, 491. Doe d. King's College v. Kennedy, 60. Doe d. Levi v. Samuel, 77. Doe d. Moffat t v. Thompson, 187. Doe d. Morgan v. Boyer, 293, 528. Doe d. Notman v. McDonald, 69. Doe d. Palmer v. Ross, 55. Doe v. Passingham, 476. Doe v. Payne, 491. Doe d. Perry v. Henderson, 558. Doe d. Pill v. Wilson, 175. Doe d. Quincey v. Caniffe, 558. Doe v. Roe, 179. Doe d. Rowcliffe v. Egremont, 136. Doe d. Seely v. Charlton, 550. Doe d. Stevens v. Clement, 106. Doe d. Taylor v. Sexton, 558. Doe d. Wimburn v. Kent, 497. Doglioni v. Crispin, 74. Doherty v. Allman, 219. Dolen v. Metropolitan Life, 239. Dominion Btnk v. Bell, 145. Dominion Bank v. Wiggins, 221, 462. Dominion Cartridge Co. v. McArthur, 332. Dominion Coal Co., Ltd., v. Bousfield, 433. Dominion Construction Co. v. Good, 535. Dominion Cotton Mills v. General En- gineering Co. of Ontario, 390. Dominion Express Co. v. Rutenberg, 303. Dominion Fence Co. v. Clinton Wire Cloth Co., 389. Dominion Natural Gas Co. v. Collins, (Add. p. xv.) Dominion Paving and Contracting Co. v. Employers' Liability, 240. Dominion S. & L. Soc. v. Kittridge, 577. Domville v. Davies, 186. Domville v. Keevan, 189. Donnelly v. Bawden, 433. Donnelly v. Donnelly, 565. TABLE OF CASES. Donnelly v. Vroom, "77. Donogb v. Gillespie, 508, 573 Donohoe v. Hall. mi. 550. Donovan v. Herbert, 450. Doran v. Hogadore, 387. Dorion v. Bedard, 210. Doss v. !>"--. 1-"1. Doswell v. Lmpey, 4 \~>. Dotridge v. ('rook. 543. Dougherty v. Williams. 180. lass v. Murphy. 490, 493. Dove v. Dove, 495. Dowdell v. Australian Mail Co., 135. Dowden & Took v. Rook, 543. Down v. I 44. Downing v. Butcher, 44G. Doyle v. Diamond Flint (Mass Co., 354. 589. Doyle* v! Walker. 296. Draeaehi v. Anglo-American Novelty Co.. 242. Drake v. Wide. 220. Draupnero, The. '2\- Drennan v. Kingston, "1 1. 357. Drew v. Baby, 361. Drewry v. Percival, 528. Drysdale v. Dugas, 360, 360. Dubei-ly v. Gunning, 143. Dubowski v. Goldstein, 542. Ducaen v. Dunne. 143. Duck v. Mayen. 4S4. Duckworth v. Lee. 527. Dudden v. • Mutton Union, ">7_. Dufresne v. Fee, 597. Duke of Beaufort v. Crawshay, Har. & Ruth, 516. Dulieu v. White, 318. Dunlin r v. Meek, L">:'>. Duncan. In re, 395. Duncan v. (*. IV 1L. 343. I >undas v. Johnson, 557. Dunlop v. Servos, 34. Dunlop Pneumatic Tire Co. v. Mose- ley, 389. Dunlop v. Osborne, 235. Dunn et al. v. Frederieton Boom Co., 505. Dunn v. Malone, 1!>7. Dunphy v. Williams. 47S. Dunsford v. Michigan Central Kail- road Co., 350. Dunsmuir v. The "Otter," 234. Durant v. Roberts, 507. Durkee v. Flint, 413. Durocher v. Bradford, 442. Durochie v. Cornwall, 313 Dwight v. Macklem, 58, 103. Dynes v. Bales. 576, 579. Dysart v. Drummond, 213. E. Eastern Judicial District v. Winni- peg, 17. Easthope, Municipal Council of, v. I [elmer, 1 1. Easl India Railway v. Kalidas Muk- erjee, 341. Last Zorra, Township of, v. Douglas, 252. Eaton, Be, 239. Eaton v. Wright el al., 55. Eaves v. Dixon, 255. Eby-Blain Co. v. Frankel, 278. Eb'v v. McTavish, 473, 586. Ecch's v. Mills. 4SC. Ecclesiastiques de St. Sulpice de Mon- treal v. City of Montreal, 212. Echstein v. Reynolds, 595. Echstein v. Whitehead, 395. Eddystone, Re, 27. Edelsten v. Edelsten, (Add. p. xix.) Edelstein v. Schuler, 17. Edgar v. Canada Oil Co.. 4G. Edgar v. Mage.-, 222. Edgell v. Curling. 130. Edinburgh Life Ins. Co. v. Ferguson, 450. Edmonds v. Challis. 85. Edmonds v. Hamilton Provident and Loan Society. 199, 236. Edmonds v. Prudential Assur. Co., 171 Edmonds v. Walter, 153. Edwards v. Carter, 551. Edwards Estate, In re, 543. Edwards v. Hooper, 154. Edwards v. Midland Railway. 441. Egmond v. Smith. 208. Electric Fireproofing Co. v. Electric Fireproof hm Co. of Canada, 3S8. Elgar v. Watson. 489. Ellen v. Slack. (Add. p. xix.) Elliott v. Baird, 373. Elliott v. Elliott. 44!'. Elliott v. Stanley, 480, 481, 4*4. Ellis v. Abell, 26, 206, 255, 538. Ellis v. Clemens. 373. Ellis v. Grubb, 580. Ellis v. Hamlin. 285. Ellis v. Hardy, 37. Ellis v. Hopper. 516. Ellis v. Kerr. 480. Ellis v. Manchester Carriage Co., 8. Ellis v. McHenry, 401. Ellis v. Midland, 268. Ellis v. National Free Labour Asso- ciation, 122. Ellis v. Sheffield, 358. Ellistoo v. Reacher, 4^2. Ells v. Ells. 293. Elswick s. s. Co. v. Moutaldi, 211. Elton v. Larkins, 4C XXXI] TAHI.E OF CASES. Elvidge v. Richardson, 270. Emblen v. Myers, 361. Emerson v. Blonden, 45. Emerson v. Erwin. 221. Emery v. Hodge, 392. Emery v. Iredale, 392. Emmett v. Quinn, 4S9. Empey v. Carscallen, 126. Empey v. Pick et al., 601. Empire Gold Mining Co. v. Jones, 481. Enoch and Zaretsky, In re, 58. Enor v. Barwell, 376. Equity Fire Ins. Co. v. Thompson, 237. Erdman v. Walkerton, 317. Erie and Niagara R- W. Co. v. Ros- seau. 351. Erskine v. Adeane, 26, 473. Essery v. Grand Trunk R. W. Co., 351. Esson v. Mayberry, 79. Europa, The. 244. Evans v. Beattie, 44. Evans v. Davis, 491. Evans's Estate., In re, 567. Evans v. Hoare, 203. Evans v. Judkins, 595. Evans v. MacMicking, 509. Evans v. Rees, 56, 58. Evans v. Watt, 430. Everett v. Youells, 18S. Everingham v. Roundell, 19. _ Everitt v. Township of Raleigh, b6. E. W. A.. In re, 589. Ewer v. Ambrose, 160, 162. Ewing v. Toronto Railway Co., 6bZ. Exall v. Partridge, 289. Exchange Bank of Canada v. Burns, 252 Exchange Bank of Canada v. Snringer, 50, 252. Eyles v. Ellis, 573. P. Fabris v. Sala. 267. Pairgrieve v. O'Mullin, 536. Falck v. Williams, 103, 518. Falconer v. European and North American Ry. rn -. 307. Fallis v. Wilson, 401. v v. Graham, 137. Farlinger v. McDonald. 587. ■quhar v. Billman, 202. Farquhar v, Farley, 213. Farquhar v. Hamilton. 286. Farqnhar v. Robertson, 128. Farquhar v. Toronto, 520. Farquharson v. British Columbia Elec- tric R. W. Co., ' Add. p. xiv.) Farr v. Hicks, 7. Farrell v. Manchester, 148. Farrell v. Portland Rolling Mills Co., 148. Farrell v. Stephens, 154. Farwell v. Walbridge, 280. Fassett v. Brown, 82. Faulkner v. Brine. 163. Faulkner v. Faulkner. 480. Fawcett v. Faulkner, 400. Federal Bank of Canada v. Canadian Bank of Commerce, 574. Fell v. South, 61. Fellowes v. Lord Gwydyr, 216, 509. Fellows v. Hutchinson, 444. Fenn v. Griffith, 15. Fenn v. Smart, 491. Fennell v. Tait, 136. Fenwick, Stobart & Co., In re Deep Sea Fishery Co., 571. Fergus v. Wardlaw. 74. Ferguson v. Gait Public School Board, 330. Ferguson v. Hill, 580. Ferguson v. Innes, 559. Ferguson v. Southwold, 313. Ferguson v. Veitch, 430. Ferguson v. Winsor, 24. 577, 580. Fernandez, Ex parte, 154. Ferrie v. Jones, 44, 253. Fesenmayer v. Adcock, 295. Field v. Hart, 585. Field v. Mitchell, 425. Fielder v. Bannister. 368. File v. Unger, 316. Filiatrault v. La Patrie Publication Co., 418. Fillburn v. People's Palace Co., (Add. p. xv.) Finch v. Blount, 454, 455. Finn v. Brown, 282. Firbank v. Humphreys, 509. Fisher v. Brock, 409. Fisher v. Prowse, 355. Fisher v. Samuda, 19. Fitchett v. Mellow, 368. Fitch v. Murray, 432. Fitzgerald v. Mandas. 488. Fitzherbert v. Shaw, 488. Flake v. Clapp, 188. Fleet v. Perrins, 51. Fleming v. Loe, 294. Fleming v. Ryan. 587. Fletcher v. Crosby, 177. Fletcher v. Rylands, ^.14. 326, 327. Fleury v. Copeland, 280. Flight v. Thomas. 363. Fl in I oft V. Elmore. 202. 533. 536. Floor v. Michigan Central R. W. Co., 141. 187. Flood v. Larouche, 591. Flood v. London West, 318. Flower v. Sadler. 541. Flynn et al. v. Kelly et al., 104. TABLE OF CASES. X.X.XUl Foley v. Canadian Permanent Loan and Sayings Co., 550. Foley v. Township of Bast Flambor- ongb, ."..~>7. Folkee v. Chadd, 7. Foong Tai v. Buchheister. 247. Ford v. Beach, 589. Ford v. Canadian Express Co., 1S2. Ford v. Elliott. 3G. Ford v. Spafford, f>19. Forgel v. Baxter, 515. Forrest v. Laycock, 259. Forsyth v. Bristowe, 486. Forwood v. Toronto, 309, 311, 352. Foster v. Anderson, 207, 209. Foster v. Bathes, 4.":;. Foster v. Fowler, 874. Foster v. Geddes, v 2. Foster, Re, & Knapton, 259. Foster v. Toronto R. W. Co., 1S6. Foulger v. Arding, 359. Foulkes v. Metropolitan District R. W. Co., 341. Foulkes v. Sellway, 258. Fowell v. Chown, 391, 893. r v. Perrin, 40S. ' Fowler v. Vail, 72. Fox v. Millington, 385. Ei ix v. Waters, 45. Fox v. Williamson, 324. Frank v. Frank, 70. Frank v. Sun Life, 238. Fraser v. Black. 158. Fraser v. Drew, 142. Eraser v. Fraser, 81, 170. Fraser v. McGibbon, 297. Fraser v. Rodney, 11. Frederick v. Lookup. 500. Fredericton Boom Co. v. MePherson, 126. Fri email v. Cook. 47. Freeman v. Jeffries, 201. (Add. p. xiv.) French v. Brink. 545. French v. Skead, 307. French v. Wallace. 142. Friend's Case, 165. Fritzley v. Oermania, 237. Friedlander v. London Assur Co., 102. Frith v. Frith, 23. Frontenac, Countv of, v. Breder, 253. Frowde v. Parish, 383. Frye v. Milligan, 2.".". Fryer v. Gathercole, 20. ■ v. Richmond, 2^0. Fulton Bros. v. Upper Canada Furni- ture Co.. 200. Furlon? v. Carroll. 182. 327. K.E.— C. G. Gage v. Bates, "7.". Gainsford v. Grammar, 45. Gaiser v. Niagara, St. Catharines and Toronto R. w. Co., 353. Galbraith v. Irving. 490. Galindez v. The King, 95. Gallant v. ( 'alder. 421. Gallaway v. Herbert, 470. Gallina v. Colton, 143. Gallinger v. Toronto Ry. Co.. 352. Gallivan v. O'Donmii. 69. Gambell v. Heggie, 430. Gamble v. Great Western R. W. Co., :>o2. Gamble v. McKay, 4S2. Cam hie v. Rees, 14. Gardner v. chapman. 360. Gardner v. Grace, 550. Gardner v. Hodgson's Kingston Brew- ery Co.. 366. Gardner v. Home, 307. Gardner v. Juson, 544. Gardner v. Kloepfer, 413. Garland v. Gemmill, 382. Garland v. Thompson, 395, 397. Garland v. Toronto. 343. Garnett v. Ferrand, 70. Garrett v. Roberts. f>00. Garth v. Howard. 43. Gnrton v. Bristol. 299. Gnrtsidc v. Silkstone. SO. Garvin v. Edmondson, ">13. Gas Float Whitton. 234. Gaston v. Wald, 327. Gaull v. McNabb, 7.". 528. Gauthier v. Routh, 72. Gautret v. Egerton, (Add. p..xv.) Geach v. Ingall, 170. Geary v. Gore Bank. 253, 289, 20.°,. Gee v. Pritchard, 77. Gemmill v. Nelligan, 2.">0. General Electric v. Victoria Electric, 594. General Finance v. Liberator General of New Brunswick. 40. Genesee .Mutual Ins. Co. v. Wist man. 01. Gentles v. The Canadian Pacific Ry., 506. Georirc v. Glass and Clark v. Moss, 281 ». George v. Green. 195, 295. George v. Surrey, 85. George D. Emery & Co. v. Wells, 2--. 593. Georgian Bay Navigation Co. v. The Shenandoah and The Cr te, 598. Geralopulo v. Wider. i7. German Savings Bank v. Tetrault, 529 XXXIV TABLE OF CASES. '. ( ;. i row, Ex parte, ."27. Gibbons, Be, 565. Gibbons v. Darvill, 411. Gibbons v. Macdonald, 412. Gibbons v. Michael's Bay, 243. Gibbons v. Tomlinson, 531. Gibbons v. Wilson, 50S. Gibson v. Hall, 29. Gibsoo v. Hunter, 7. Gibson v. McKay (Add p. xix.) Gibson v. Toronto Roads Co., ISO. Gibson v. Winter, 42. Gignac \. Woodburn, 465. Gignec \. City of Toronto, 313. I riguere v. Jacob. 432. Gilbert v. Campbell. 21, 147. Gilbert v. Gooderham, 158. Gilbert v. Ross, 18, 19. Gilbey v. Great Western Railway, ( Add. p. xiv. I GilchrLst v. Grand Trunk, 182. Gilchrist v. Township of Garden, 35G. Giles v. Morrow. 28. 260. Giles v. Thames Iron Works Ship- building Co., 330. Gilford v. Davis, 178. Gillard v. Bollert, 588. Gillespie v. I Irover, 408. Gillespie v. Van Egmont, 411. Gilletl v. Abbott, 47, 86. Gillies v. Col ton, 391. Gillson v. North Grey R. W. Co., 328. Gilmour v. Bay of Quinte Bridge Co., 308. Gilmour v. Simon, 512. Gilmour v. Snow, 207. Gilmour v. Supple, 270. Gilpin v. Greene, 24. Gilroy v. McMillan, 26. Gingras v. Desilets, 189. Girard v. Quebec and St. John R. W. Co., 345. Glanville v. Stracban, 405. Gleason v. Williams, 142. Gleeson v. Wallace, 84. Glen's Trustees v. Lancashire & York- shire Accidenl Insurance Co., 518. Glossop v. Pole, 70. Glover v. Coleman, 365, 366. Clvn v. Bank of England, 36. Godfrey v. Dalton, 264. Godfrey v. Fay, 264. Cod win v. Francis, 206. GoflE v. Lister, 581. Goff v. Mills. 130, 135. Goff v. Strohm, 57 1. Goldsmith v. Goldsmith, 198. Good v. Good, 420. Good v. Toronto, Hamilton and Buf- falo R. W. Co., 535. Gooderham v. Toronto, 365, 369. Goodtitle d. Revet! v. Braham, 175, 477. Goodwin v. Robarts, 47. Goose v. Grand Trunk R. W. Co., 123. Gordon v. City of Belleville, 311. Gordon v. Denison, 447, 448. Gordon v. Harper, 455. Gordon v. Metropolitan Police Com- missioners, 540. Gordon v. Rumble, 440. Gordon v. Secretan, 86. Gore Bank v. Royal Canadian Bank, 223. Gorham v. Kingston, 289. Gorham Manufacturing Co. v. Ellis, 386. Goring v. Cameron, 504. Gorman v. Dixon, 250, 252. Gottwalls v. Mulholland, 411. Gosnell v. Toronto Ry. Co., 352. Goss v. Lord Nugent, 206, 590. Gough v. Bench, 208. Gough v. McBride, 105. Gough v. Wood, 506. (but Id v. Erskine, 430. Gould v. Johnson, 554. Gould v. Lakes, 37. Gould v. McCrae, 270. Goulding v. Deming, 5S2. Gower v. Lusse, 444. Governor and Company of Bank of England v. Vagliano, 223. Coyer v. Morrison, 550. Grace, In re. Graeme v. Globe Printing Co., 145. Graham v. Canada Life, 239. Graham v. Canandaigua, 67. Graham v. Commissioners for Queen Victoria Niagara Falls Park, 313. Graham v. Graham, 159. Graham v. Laird, 283. Graham v. McArthur, 59. Graham v. Toronto, Grey and Bruce, R. W. Co. (Add. p. xvi.) Graham v. Wetmore, 12. Grand Hotel Co. v. Cross, 597. Grand Hotel Co. of Caledonia Springs, Lim., v. Wilson, 387. G. T. P. Co. v. Vincent, 366. Grand Trunk R. W. Co. v. Beaver, 305. Grand Trunk R. W. Co. v. City of Quebec, 290. Grand Trunk R. W. Co. v. Fitzger- ald, 24. Grand Trunk R. W. Co., v. Ilainer, 347, 349. Grand Trunk R. W. Co. v. McKay, 349. ti rt.v. op n a men XXXV Grand Trunk E. \Y. Co. v. McMillan, 589. Grand Trunk R. W. Co. v. Rosen- berger, 342. Grand Trunk R. W. Co. v. Therrien, 351. Grant, /,'(•, 2.">s. Grant v. Armour, 190, 274, 591 Grant v. Cadwell, 256. 257. Grant v. Cameron. IK'.. 522. Grant v. Cornock, 258. Grant v. Creelman et a!.. 509. (Jrant v. Glasgow and South-Western Railway. 10. Grant. Re Northern Pacific Ry. Co., 301. (Jrant v. Protection Ins. Co., 186. Grant v. Robertson, 495. (Jrant v. West, 405. Grass v. Austin, 587. Grassett v. Carter, 150. Gravel v. L'Union St. Thomas. 240. Graves v. Gorrie, 379, 381. (J raves v. Key, 39. Gray v. Allison, 510. Gray v. Palmers, 225. Gray v. Whitman, 228. Graydoo v. Hammill, Re, 207. 212. Ciaystock v. Barnhart. 28. Great Eastern Railway v. Fisher. 405. Great Northern R. W. Co. v. Bainar, 341. Great West Lumber Co. v. Wilkins, 204. Great Western It. W. Co. v. Jones, 199. Great Western It. W. Co. v. I.titz. 559. Great West Saddlery Co.. Re, 582. Green v. Burtch, 294. Green v. Citizens' Ins. Co., 202. < rreen v. Gosden. 408. Green v. Lewis, •'.». 536. Green v. .Miller. 421. Green v. Minnes, 410. Green v. Sevin, 594. Green v. New York and Ottawa Ry. Co., 350. Greene v. New River Co.. 71. Greenizen v. Burns, 201. Greenock Towing Co. v. Hardie, 323. Greenougb v. Eccles, 103. Greenshields v. Stephens, 2:',2. Greenwood v. Estevan School Trustees 499. Greenwood v. Sutcliffe, 596. Greer v. Johnstone, 498. Greet v. Citizens* Ins. Co., 493. Greet v. Royal Ins. Co.. 403. Gregg v. Holland, 531. Gregorie v. St. Charles de Bellechasse School Commissioners, 23. 2t;_ Holmes v. Kerrison. 554. Holmes v. Mather. 317. Holmes v. Mathews, 24. Holmes v. Trench. 514. Holroyd v. Marshall. 450. Holt v. Carmichael, 585. Home Life Association v. Randall. 10. Hood v. Cronkite, 20. Hooker v. Gamble. 252. Hooker v. Leslie, 22:1. Hookham v. May'. . 505. Hope v. Dixon. 506. Hope v. Grant, 404. Hope v. Parrott, 588. Hope v. White, 427. Hopkins v. Danroth. 592. Hopkins v. Great Northern Railway, 378. Hopkins v. Hopkins. 533. Hopkins r. Smith. 564. Hopper v. Smith. 135. Horsfall v. Boisseau, 69. Hough v. L. & N. W. R.. 454. Houlder v. Commissioner of Public Works, 23, 288. House v. Brown, 535. Hovey v. Whiting, 68. Howard v. Canfield, 170. Howard v. Hevington, 479.^ Howard v. Lancashire, 230. Howard v. O'Donoshue. 559. Howard v. Shaw. 217. Howard v. Tucker, 243. Howartta r. McGugan, 314. Howatson v. Webb, 47. Howe v. Finch. 312. Howell, Be, 172. Howell v. Dominion of Canada Oils Refinery Co., 401. Howells v. Landore Steel Co., 329. Howland v. Jennings, 196, 197. Hubbard v. Lees, 94. Hubbard v. Thompson Co., 506. TABLE OF CASES. Hubberd v. Knight, 18. Hubbuck v. Wilkinson, Ileywood & Clarke. 4211. Huber v. Crookall, 41 43. Jess v. Quebec and Levis Ferry Co., 307. Jewell v. Broad, 551. Jeykal v. Nova Scotia Class Co., 12. Jobanneson v. Galbraith, 261. Johnson v. A. O. U. W., 240. Johnson v. Baker, 85. Johnson v. Dominion Express Co., 303. Johnson v. Dunn, 592. Johnson v. Dulmage, 407. Johnson v. Durant, 261. Johnson v. (J rand Trunk R. W. Co., 5S9. Johnson v. Kirk. 579. Johnson el al. v. Lithgow et al., 20. Johnson v. Martin. 228. Johnson v. Midland Ry. Co., 209. Johnson v. Northern R. W. Co., 342. Johnson et al. v. Parr, 3S6. Johnson v. Regein, 530. Johnson v. Reid. 578. Johnston v. Birkett, 54. Johnston v. Ewart, 419. Johnston V. Sunnier. 279. Johnstone v. Boyle, 369. Johnstone v. Henderson, 456. Johnstone v. Huddlestone, 498. Johnstone v. Sutton. 443. Joiner v. Wicks, 493. Jolicoeur v. Grand Trunk R. W. Co., 173. Jones, Ex parte, 539. Jones and Wife v. Calkin et al., 552. Jones v. Carter, 491. Jones v. Corbett; 225. Jones v. DeWolf. 537. Jones v. Duff. 441. Jones v. Cordon, 224. Jones v. Festiniog, 327. Jones v. Great Central Railway. Jones v. Humphreys, 522. Jones v. James, 258. Jones v. .Toms. 33, 155, 546. Jones v. Linde, British Refrigeration Co.. 209. Jones v. McGrath, 452. Jones v. Merionethshire Permanent Benefit Building Society, 545. Jones v. Morton. 333. Jones v. Norris, 202. Jones v. Peppercorne, 553. Jones v. Stevens. 440. Jones v. Waller, 57. Jordon v. Coates, 228. Jordon v. Leonard, 282. Jordon v. Marr. 187, Josling v. Kingsford, 254. Journal Printing Co. v. MacLean, 62. 420. Judge v. Thomson. 82. Julia. The, 322. Kaatz v. White. 220. Kahl v. Jansen, 44. Kain v. Mcintosh, 412. Kalner v. Baxter, 513. Kannen v. McMullen, 20.". Kastner v. Winstanley, 251. Kastor, W. II.. & Sons Advertising Co. v. Coleman, 1f>0. Kate, The. 320. Kaufman v. Gerson, 66. Kavanagh v. Slavin, 39. Kearney v. Letellier, 30. Keating v. Dillon. 539. Keating v. Graham, 279. Keefer v. Phoenix, 2-':o. Keewatin Power Co. v. Town of Kcn- ora. 371. Kellv v. Archibald. 442. Kelly v. Barton. 432. 442. Kelly v. Dow. 316. Kelly v. Jones, 315. Kelly v. Ross. 422. Kelly v. Wolff. 489. Kelsi v. In re, 576. Kemp. Re, 240. Kemp v. Christmas, 426. Kemp v. Neville, 71. Kendrew v. Shewan, 260. Kenen v. Hill. 264. Kennedy v. American Express To., 303. Kennedy et al. v. Halifax Tns. Co.. '2'.',:). Kennedy v. Oldham, 20f>. Kennedy v. The " Surrey." 300. Kennedy v. Thomas. 224. Kennersley v. Orpe, 71. Kenny v. Caldwell, 78, 102, 30.".. Kenny v. Canadian Pacific R. W. Co., 308. Kensington v. Inglis, 109. Kent v. Ellis, 456. Kerby v. Elliott, 74. Kerr v. Atlantic and North West Rv. Co.. 307. Kerr v. Pain. 404. Kerr Engine Co. v. Ereneh River Tne Co.. 189. Kerr v. Grand Trunk R, W. Co., 142. Kerr v. MurMn. .".1." Kerrison v. Smith. 453. Kerry v. Jam.-. 583 Kerstein v. I ol ". 386. Ki v v. Thi 170, 172. Keys v. < ■" 181 Kidder v. Smart Manf. Co.. 393, • trick v. Stone, 164. xl TABLE OF CASES. Kilpin v. Rathley, 403. Kimball v. Smith. 429. Kin? v. Alford. 467. King v. Low. 286. Kinchorne v. Montreal Telegraph Co., 103. King's College v. McDougall, 30. Kingsford v. Merry, 457. Kingston v. Wallace, 431. Kinlock v. Craig. 470. Kinlocb v. Scribner, 466. Kinnard v. Tewsley, 221. Kinnaird v. Webster, 573. Kinneai v. Aspden, 488. Kinver v. Phoenix, 448. Kinzie v. Harper, 205. Kirehner v. Cruban. 436. Kirk v. Chisholm, 413. Kirk v. Kirkland. 579. Kirkpatrick v. Canadian Pacific R. W. Co., 351. Kirkpatrick. Re, v. Stevenson, 37. Kitchen v. Dolan, 25. Kitching v. Hicks, 533, 545. Knight v. Esjerton, 426. Knight v. Williams. 488. Knisht V. Isle of Wight Electric Light and Power Co., 358. Knox v. Porter, 143. Knutsford v. Tillmanns, 242, 247. Koch and Wideman. In re, 526. Koetter v. Hamilton Provident Society, 256. Koster v. Innes, 230. Kreli v. Henry, 546. Krenzenbeck v. Canadian Northern R. W. Co., (Add. xiii.) Kronsbiew v. Gage, 364. Krug Furniture Co. v. Berlin Union, 435. Kruger v. Moel Tryvan Ship Co., 242. L. Labelle v. O'Connor, 212. Labouchere v. Bess, 76. Lacon v. Higgins, 178. Lacroix v. Longtus, 537. Ladds v. Elliott, 479. Langdale, Lady v Briggs, 174. Laflamme v. Dandurand, 597. Lafrance v. Larochelle, 528. Lning v. Fidgeon, 254. Lain? v. Ontario Loan and Savings _ Co., 587. Lair v. Authier, 14. Laird v. Adams, 249. Laird v. Fairclofb, 430. Laird v. Patton, 208, 578. Lake Superior Navigation Co. v. Beatty, 96. Lamond v. Richard, 297. Lamont v. Canadian Transfer Co., 15. Laruont v. Crook, 135. Lampman v. Township of Gainsbor- ough, 317. Lampson v. Corke. 47. Lane v. Cox. 494. Lancefield v. Anglo-Canadian Music Association, 382. 3S3. Lancey v. Johnstone. 220. Landes v. Marcus. 224. Lane Fox v. Kensington. 388. Langdon v. Robertson. 63. Langhorn v. Allnut, 43. Langlois v. Baby, 544. Langrish v. Wat's, 563. La n -staff, Re, 198. Lapointe v. Stennett. 443. Larder v. Farquhar, 295. Larkin v. Gardiner, 215. Latch v. Bright, 581. Latkow v. Earner, 70. Laughlin v. Harvey, 123. Laurence v. Kelly, (Add. p. xvi.) Laurin v. Ginn, 66. Law v. Hansen, 64. Law v. Peers, 546. Lawless v. Chamberlain, 528. Lawlor v. Lawlor, 575. Lawrence v. Errington, 210, 533. Law Societv. etc., v. City of Toronto, 290, 291, 293. Lawson v Jones, 571. Lawson v. McGeoch, 15, 28, 404. Laybourn v. Crisp, 86. Layer's Case, 165. Lazarus v. Andrade. 68. Lazarus v. Artistic Photo Co., 363. Lazarus v. City of Toronto, 316, 356. Leathern v. Craig, 434. Ledyard v. McLean, 208. Lee v. Butler. 508. Lee v. Griffin, 536. Lee v. Johnstone, 28. Lee v. Logan, 65. Lee v. McDonald, 44. Lee v. Shore, 275. Leeds and Hanley Theatre of Varieties v. Broadbent, 195. Leete v. Gresham, 174. Lefobvre v. The Queen, 377. Leffeunteum v. Beaudoin, 150. Legacy v. Pitcher, 433. Legatt v. Brown. 545. Lehijrh Cobalt Silver Mines Co. v. Heckler, 225. Lei eh v. Taylor, 465. Leigh v. Thornton. 218. Lellis v. Lambert. 566. Lemesurier v. Willard. 14. Leminon v. Webb, 362. Leonard v. Delorme. 432. Leonard v. Ramsav, 431. Lesehallas v. Woolf, 488. Leslie v. Calvin. 294. TABLE OF CASES. Xli Lessee of Sen man v. Campbell, 125. Le Targe v. De Tuyll, 24. Lett v. St. Lawrence and Ottawa It. W. Co.. 182. Leveille v. Pigeon. 403. Leverington, The, 319. Levi v. Reed. 1X0. Levi v. Samuel, 77. Lewin, Ex parte, r>74. Lewin v. Lewin. 566. Lewis v. Baker. 487. Lewis v. Clay, 5.30. Lewis v. Godson. 210. 220. Lewis and Sills v. Hughes, 207. Leys v. Macpherson, 565. Lickbarrow v. Mason, 229, 471. Liddell v. Munro, 482. Life Publishing Co. v. Rose Publishing Co., 381. Lilley v. Toad, 563. Lindley v. Lacy, 20. Lindsay v. Zwicker, 228. LintOD v. Imperial Hotel Co., 490. Linton v. Sutherland, 39. Linton v. Wilson, 220. Liquidation Purchase Estates Co. v. Willoughby, 523. Liquidators of Maritime Bank v. The Queen, 402. Lister v. Lancashire and Yorkshire Railway, 300. Lister v. Lane. 403. 404. Lister v. Perryman, 443. Little Bob River Dam, In re, 375. Little v. Dundas and Waterloo Maca- damized Road Co., 293. Little v. Hanbury, 539. Littledale v. Liverpool College, 503. Liverpool General Brokers' Association v. Commercial Press. 3X2. Livingston v. Gartshore, 100. Livingstone v. Sydney and Glace Bay Ry. Co., 37.2. Llado v. Morgan, 553. Lloyd v. Adams. 39. Lloyd v. Henderson, 00, 557. Lloyd v. Mostyn, 18. Lloyd v. Sturgeon Falls Pulp Co., 24. Lloyd v. William. 43. Locators v. Clough, 511. Lockridge v. Lacey, 590. Lock v. Reid, 225. Lofft v. Dennis. 217. Logan v. Lee. 65. London & Canadian Loan & Agency Co. v. Warin. 374. London, Chatham, and Dover R. W. Co. v. S. E. R. W. Co., 196. London County Council v. Dundas, 453. London General Omnibus Co. v. La- vell, 394. London and Globe Finance Corpora- tion, In re, "..".': London and Globe Finance Corporation v. Kaufman. 130. Ixnidon Joint Stock Co. v. Simmons, 22 1 . London Loan Co. v. Smyth, 45. London v. London St. Ry., 355. London Life Ins. Co. v. Molsons Bank, 223. London and Northern Bank, In re, Jones, ex parte, 539. London & Western Trusts Co. v. Can. Fire Ins. Co.. 237. London West v. London Guarantee, 240. Loney v. Oliver, 190, 215. Long v. Carter, 402. Long v. Clark. 424. Long v. Long, 596. Longbottom v. City of Toronto, 313, 357. Longeway v. Mitchell. 404. Longman v. Bath Electric Tramways, 307. Loog t. Bean, 414. Lo.uner v. Marks. 505. Lord v. Davidson. 243. Lothian v. Henderson. 72. Louden Mfg. Co. v. Milmine, 550. Lound v. Brimwade, 545. Love v. New Fairview Corporation, 297. Lovitt et al. v. Snowball, 158. Low v. Bouverie, 47. Lowe v. Adams. 453. Lowell v. Todd. 27. Lowenberg, Harris & Co. v. Wolley, 313, 510. Lowery v. Walker, ( Add. p. xvi.) Loyal* Prince of Wales Lodge v. Sin- field, 305. Lucas v. Pet tit. 324. Lucas v. Tarleton. 425. Luce v. Coyne, 40. Luekin v. Hamlyn, 68. Lucy v. Mouflet. 42. Ludlow v. Charlton. 95. Lundie v. Robertson, 227. Lunn v Thornton. 456. Lusk v. Miller. 392. Lydon v. McGee. 61. Lyman v. Cain. 20. Lvnar v. Mossop, '-'07. Lynch v. Clerke, 49, 89. Lynch v. Ring, 215. Lynett v. Parkinson, 4S9. Lynn. Be. 238. Lyon v. Fishmongers' Co., 376. Lyons v. Wilkins. 435. Lysaght v. Edwards. 204. 593. Lythgoe v. Vernon, 202. xlii TABLE OF CASES. M. Maber v. Penskalski, 203, 215. Macdonald v. Balfour, 407. Macdonald, Re, Dick v. Fraser, 555. Macdonald v. Georgian Bay Lumber Co., G4. Macdonald v. Ketchum, 70. Macdonald v. Mail Printing Co., 187. Macdonald v. McCall, 405. Macdonald v. Putnam, 166. Macdonald v. Worthington, 176. .Macdonnell v. Evans, 157. Macdougall v. Young, 19. MacFarlane v. Martin. 168. Macintosh v. Dunn, 510. Mackay v. Douglas, 401. MacKenzie v. Iron Trades Employers' Insurance Association. 434. Macklem v. Turnbull, 20, 56. Mackreth v. Symmons, 470. Macpherson v. Fredericton Boom Co., 27. Mader v. Halifax Electric Tramway Co., 352. Mader v. McKinnon, 412, 583. The Madras. 247. Magann v. Auger, 539. Magdalen Islands S. S. Co. v The "Diana," 321. Magee v. The Queen, 166. Magee v. Street, 281. Mahoney v. MacDonell, 168. Mainland v. Upjohn, 263. Mair v. Cully, 133. Major v. Chadwick, 179. Makarsky v. Canadian Pacific R. W. Co., 330. Malcolm v. Race, 594. Makolm Brunker & Co. v. Waterhouse, 332. Mallett v. Great Eastern Railway, 343. Maloney v. Campbell, 253, 481. Maloney v. Whitlock. 596 Manby v. Scott. 279. Maneer v. Sanford, 506. Mangan v. Windsor, 286. The Manhattan v. Sullivan, 234. Manitoba Mortgage Co. v. Rank of Montreal, 223. Mann. Macneal & Co. v. Ellerman Lines, 321. Manners v. Pearson, 479. Mann in-/ v. Thompson. 14. Mansfield v. Reach. 80. Manufacturers' Life v. Gordon, 237 238. Manufacturers' Life v. Rowes. 238 Marais (D. F.) v. General Officer Commanding the Lines of Com- munication, 568. Marcilli v. Donnelly, 494. Marcotte v. Bolduc, 414 Maritime Rank v. The Queen, 402. Maritime Rank v. Stewart, 402. Markin v. Rabidon, 410. Markle v. Donaldson. 330. Marks v. Town of Windsor, 141. Marks v. Watson, 274. Marney v. Scott. 326. Mar: y. Marr, 172. Marriott v. Brennan, 512. Marriott v. Yeoward, 303. Marriott v. Hampton, 292. Marsden v. Downes, 136. Marsh v. Home. 9. Marshall's Case, 341. Marshall v. Cates. 331. Marshall v. Central Ontario R. W. Co., 269. Marshall v. Smith. 259. Marshall v. Municipality of Shelburne, 11. Marthinson v. Patterson, 64, 66, 5S3. Martin, Re, 65. Martin v. Andrews, 291. Martin v. Hanning, 518. Martin v. Ilauhner, 533. Martin v. Hopjr, 324. Martin v. Hutchinson, 439, 440. Martin v. Sampson, 54, 584. Martin v. Weld. 558. Martyn v. Williams, 487. Mary v. Hubert. 3S0. Marzetti v. Williams, 292. Mason v. Hill, 373. Mason v. Johnston, 505, 555. Mason v. Lindsay, 473, 588. Mason v. Macdonald, 585. Mason v. Mahar, 500. Mason v. Mason. 525. Mason v. Morgan, 323. Mason v. Peterborough, 317. Mason v. Rumsey, 225. Mason y. Scott. 26. Mason v. Seney, 60U Massey v. Allen. 38. Massey v. Lowe, 502. Masson, Templier & Co. v. Defries, 567. Masuret v. Stewart. 404. 531. Matheson v. Kelly, 506. Mathews v. Baxter, 552. Mathewson v. Henderson, 397. Mathinson v. Patterson, 54. Mathys v. Manchester, 247.' Mattei v. Gillies. .T12. Matthews. In the Goods of, 29. Mattice v. Brandon Machine Works Co.. 389. Maughan v. Casei. 364. Maulson v. Commercial Bank, 408. Maulson v. Joseph, 407. Maunsell v. Ainsworth, 130. Maw v. Townships of King and Albion, 357. TABLE OF OASES. xliii Mawson v. Ilartsink, 107. Maxwell v. Scarfe. 402. May v. Piatt. 571. May v. Becnrity Loan and Savings Co., ~tS~t Maybery v. Williams. 208. Mayhew v. Stone. 289. Mazoni v. Douglas, 318. Meaford v. Lang. 250. Meagher v. Aetna Insurance Co., 63, 232. Meagher v. Home Ins. Co., 232. Meara v. Cullender, 464. Meaux v. Greal Eastern It. W. Co., (Add. i). xv.) The Mecca. 519. The Mediano, 323. 454. Melady v. Jenkins, 303, 539. Melady v. Midland, 68. Melancon v. Comeau, 246. Melanson v. Lavigne, 4 !<>. Meloche v. 1 teguire, ."C4. Melhuish v. Collier, 162. Melhuish v. Milton. 87. Mellon v. Municipality of Kings, 125. Mellor v. Walmesley, 102. Meneil v. Haines, 570. Menzies v. Farnon. 566. Mercer v. Deene, 38. Mercer v. Neff. 525. Mercer v. Whall, 174. Merchants v. Rumsey, 220. Merchants Bank v. McDougall, 227. Merchants Bank of Canada v. Clark, 411. Merchants Bank of Canada v. McKay, 397. Merchants Bank of Canada v. Morri- son, 25. Merchants Bank of Toronto v. The Queen. 5S8. Merchants Express Co v. Morton, 293, 466. Merchant Shipping Co. v. Annitage, 196. Mercier v. Campbell, 210. Meredith v. Meigh, 273. Merriam v. Baisch, 204. Merritt v. Hepenstal, 154, 310, 315, 550. Merritt v. Ives. 24. Merryweather v. Nixon, 2*9 Metcalfe v, McNee, 123. Metcalf v. Roberts, *'29. Michaels v. Michaels. 221. Michie v. Reynolds. 1!"'-. Middlefield v. Gould, 253. Middlesex r. Smallman, 250. Midland B W. Co. v. Ontario Roll Mills, 590. Milburn v. Milburn, 472. Milburn v. Wilson, 509, 513. Miles v. Haslehurst, 518. Miles v. New Zealand, 528. Milford, The, 66. Millan v. Dominion Carpet Co., 266. Millar v. Brown, 578. Millars Karride v. Weddel, 281. Miller and Aldswortb v. Sharpe, 535. Miller v. Confederation Life Assur- ance Co.. 17.". Miller v. Dahl, 571. Miller v. Newman. 275. Miller v. McTaggart. 500. Miller v. Plummi r. 228. Miller v. Race. 462. Miller v. Ryerson, 316, 550. Millidge v. Stymest. 232. Millov v. G. T. R.. 301. Millson v. Small. 549. Milmore v. Town of Woodstock, 124. Minet v. Morgan, 136. Mingeaud v. Backer. 239. Minor v. Gilmour. '■'>'■',. Minshull v. Oakes. 494. Misener v. Michigan Central By. Co.. 345. Mitchell v. Barry, 374. Mitchell v. City of London Ass. 230, 237. Mitchell v. Parley Main Colliery Co.. 362. Mitchell v. Hancock Inspirator Co., 392. Mitchell v. Henry. 3S4. Mitchell v. McCauley, 490. Mitchell v. Reynolds, 541. Mitchell et al. v. Turnbull, 572. Moens v. Hayworth, 408. Moffatt v. Prentice, 135. Mogul Steamship Co. v. McGregor. 434. Moises v. Thornton. (',0. Molsons Bank v. Halter, 405, 409. 412. Molsons Bank v. Heilig, 250. Mols.uis Bank v. Robertson, 12S. Monteith v. WaNli. 594, Montforten v. Bondit. 294. Montgomery v. Boucher, 196, 197. Montgomery v. Spence, 489. Montgomery v. Thompson, Montreal Gas Co. v. Vasey, 539. Montreal Harbour Commissioners v. The " Bay State," 320. Montreal Lighterage Co. v. Cordon. 233. Montn al Boiling Mills Co. v. Corcoran, l". 306. Moody v. McCann, 17. r >. Moody v. Tyre!!. 574. M dy v. Young, 204. xl IN- TABLE OF CASES. Moocrs v. Gooderham and Worts (Limited). 255, 25G. 281. Moonev v. Grout. 266. Moore v. Boulton. 367. Moore v. Boyd, 188. Moore v. Buchner, 261. Moore v. Fallen Vestry, 21)2, 569. Moore v. Gimson, 312. Moore v. Kane. 570. Moore v. Kuntz, 275. Moore v. Ontario Investment Asso- ciation, 305. Moore t. Scott. 580. Moore v. Woodstock Woollen Mills Co., 33. Moore v. Ullcoats Mining Co., 401. Moorehouse v. Hewish, 210. Moot t. Gibson. 483. Morang v. Publishers Syndicate. 382, 383. Morel v. Westmoreland. 30. Morgan t. Pike. 9. Morgan v. British Yukon Navigation Co., 598. Morgan v. Griffith. 26. Morgan v. Nicol. 55. Morgan-Smith v. Montreal Light Heat and Power Co.. 284. Morgan v. Western Assurance Co., 592. The Morgengry, 484. Moriarity v. Brooks, ISO. Moriarity v. Harris, 432. Morice v. Baird, 111. Morin v. Ottawa Electric R. W. Co., 308. Morley v. Attenborough, 253, 278. Morley v. Mathews, 450. Morley v. Totten. 509. Morris v. Cairncross, 221. Morris v. Dinnick, 288. Morris v. Williams, 401. Morrison v. City of Toronto, 313. Morrison v. Lenard, 146. Morrison v. Watts. 407. Morrow v. Canadian Pacific R. W. Co., 9. 310, 341, 347. Morse v. Phinney, 54. Morson v. Burnside, 511. In re Morton and Citv of St. Thomas, 368, B80. Morton v. Grand Trunk R. W. Co., 354. Morton y. Lewis, 449. Morton v. Ontario Ace. Ins. Co., 240. Moscatti v. Lawson, 177. Moses v. Little. 214. Moshier v. Keenan, 402, 508. Mossop v. Mason, 542. Mostyn v. Atherton, 372. Mostyn v. Fabrigas, 62. Mowat v. Provident Savings Life As- surance Society, 574. Mucklow v. Mangles, 45." Mudd v. Suck'Tinore, 169. Muddock v. Blackwood, 381. Muir v. WaddelL 521. Mulcahey v. Archibald, 411. Mullett v. Hunt. 135. Mummery v. Grand Trunk R. W Co.. 354. Mund v. Busch. 23. Municipal Council of Easthope v. Hel- mer, 44. Munn v. Godbolt. 17. Munroe v. Heubach. 205. Munro v Toronto Railway Go., 138. Munro v." Waller, 492. Munsie v. Lindsay, 40, 219. Murdock v. Pitts, 559. Murphy v. Smith, 329. Murray v. Canadian Pacific R. W. Co., 348. Murray v. Reg., 286. Murtha v. McKenna. 410. Mustapha v. Wedlake. 527. Mykel v. Doyle, 367, 566. Mc. McArthur v. Dominion Cartridge Co., 347. McAuley v. Allen, 466, 586, 588. McBean v. Kinnear. 189. McCabe v. Robertson, 522. McCaffrey v. McCaffrey, 600. McCaffrey v. The Canadian Pacific R. W. Co.. 301. McCall v. McDonald, 412. McCall v. Theal, 384. McCall v. Wolff, 68. McCallum, In re, 564. McCallum v. Hutchinson, 359. McCallum v. McCallum, 564. McCallum v. Snyder, 427. McCamdy v. Tuer. 566. McCann v. Chisholm, 362. McCann v. Pidgeon, 372. McCann v. Preneveau, 442. McCarthy v. Cooper, 206. McCarthy v. Young, 307. McCaskiil v. Kodd, 427. * McCausland v. Quebec Fire Ins. Co., 235. McClary v. Jackson, 403. MeCleave v. City of Moncton, 312. McClellan v. McCaughan, 205. McClellan v. Powassan Lumber Co., 366. McCloherty v. Gale, 333. McClung v. McCracken, 205. McCollum v. Davis, 79, 496. McConnell v. Beatty. McConnell v. McConnell, 32, 601. McConnel v. Wright, 531. McCormack v. Sydney and Glace Bay R. W. Co., 352. McCormack v. Toronto R. W. Co., 521. TABLE OF CASES. riv McCormick v. Caledonian Railway, 341. McCosh v. Crow. 380. Mc< raw v. (Jen try. 82. McCreadle v. Thomson, 446. McCuaig v. I. O. O. F., 238. McCuaig v. Phillips, 518. McCuIley v. Ward. 218. Mc< !ullough v. Clemow, IOC. McCullough v. Munn, 79. McCullough v. Newlove, 286. McCullough v. Shields, 70. McDonald v. Boice. U2. McDonald v. Brennan, 218. McDonald v. < 'lark, 45. Mel Donald v. Cummings, 402. McDonald v. Curran, 259, 401. McDonald v. Dieairo, 17. McDonald v. Fraser, 425. McDonald v. Lake Simcoe Ice and Cold Storage Co.. 377. McDonald v. McDonald, 280. 552, 581. McDonald v. McDougall, 105. McDonald v. McIIugh, 175. McDonald v. Murray, 41, 211. McDonald v. Rose, 24. 571. McDonald v. Twigg, 83. McDonell v. Ontario, Simcoe and Huron R. W. Co.. GO. McDougall v. Ridout. 400. McDougal v Van A lion, 270. McDowell v. McDowell, 522. McEd wards v The OgiMe Milling Co., 269. McEwan v. McLeod, 244. McEwan v. Milne, 13, 600. McFadden v. Blue Star Line, 247. McFadden v. Brandon, 555. McFarlane v. Derbishire, 72. MoFarlano v. Martin, 168. McFarren v Johnson, 2. McGeachie v. North American, 238. McGee v. R>ono, 47, 307. McGibbon v. Feegan. 238. McGibhon v. Northern, 327. McGillis v. Hoot. 284. McGilHvray v. Millin, 377. McC.illivrav v. Mimico Real Estate Co., 400. 497 McGowan v. Middleton, 594. McGrath v. Black. 593. McGregor, Re, 239. McGregor v. Gaulin, 46, 199, 574. McGregor v. Keiler, 558. McGregor v. McArthur, 159. McGregor v. McGregor, 218, 450. McGuingal v. Grand Trunk R. W. Co., 311. McGuire v. Graham, 210. McHutrh v Grand Trunk R. W. Co., 354. Mcllvride v. Mills. 203. Mclllmurray v. Jenkins, 365. Mclnnis v. Getsman, 13. Mcintosh el al. v. Cullen, 287. Mcintosh v. Moynihan, 202, ."34. Mclntyre v. A.ttorney-General, 13. Mclntye v. Canada Co., 557. Mclntyre v. Coote, 312. Mclntyre v. Faubert, 202. 407. Mclntyre v. Hockin, 266, 269. McKay v. Crocker, 456. McKay v. Crysler, 478. .McKay v. Cummings, 431. McKay v. Grinley, 294. McKay v. Howard, 293. McKay v. Lockhart, 248. McKay v. Norwich, 236. McKeegan v. Cape I'.rctou Coal Co., 312. McKellar y. Canadian Pacific R. \V. Co., 340. McKenna v. McNamee, 270, 288. McKenzie v. Br. Linen Co., 47. McKenzie v. Champion, 512. McKenzie v. Ham ey, 2 13. McKenzie v. Gordon, 62. McKenzie v. McMullen, 254, 474. McKerchie v. Montgomery, 135. McKewn v. Cotching, 161. McKim v Bixel. ."7"_'. McKinnon v. Burrows, 495. McKinnon v. Roche. 112. McKintosh v. Trotter, 188. McLaren v. Canada Central R. YV. Co., 183, 327. McLaren v. Cook, 376. McLaren y. McMillan, 552. McLaughlin v. Moore, 258. McLay v. Bruce, 420. McLean v. Burton, r>7*. ►. McLean v. Dayis. 374. McLean v. Dominion Coal Co., 306. McLean v. Freedman, 272. 281. McLean v. Rudd. 325. McLellan v. Meggatt, 260. McLellan v. Win ton, •>.";. McLennan v. Grand Trunk R. W. Co.. 350. McLeod v. Canadian Northern R. W. Co., 349. McLeod v. Fortune. 587. McLeod v. Hope & Farmer, 262. McLeod and Mir,,,-. Re, 202. McMahon v. C03 le, [84 McManus v. Crickett, .T17. McManus v. Fortescqe, 510. McMartin v. Powell, 128. McMaster v. Canada Paper Co., fi22. McMaster v. Geddes, 292. McMaster v. Goddon. 536. McMichael 7. Grand Trunk R. W. Co., 350. McMichael v. Wilkie, 207. M. Mickm v. Ontario Rank, 31, 570. xlvi TABLE OF CASES. McMillan v. Manitoba & North West- ern Ry. Co., 44. McMillan v. McMillan, 479. McMillan v. McSherry, 582. McMullen v. Free. 274. 3G1. McMullen v. Williams, 255. McNab v. Dysart, 355. McNab v. Wagstaff, 2S9. McNamara v. Skain. 286. McNamee v. Toronto. 2S6. McNaughton v. Hudson, 396. McNeil, In re, 526. McNicholas v. Dawson, 10. McNutl v. Western Assce. Co., 237. McPhelim v. Weldon. 431. McPherson v. City of St. John, 307. McPherson v. Copeland, 505. McPherson v. McPherson, 135. McGuag v. Eastwood, 317. McQuillan v. Town of St. Mary's, 314. McRae Estate, Re, 520. McRae v. Dunlop, 315. McRoberts v. Steinhoff, 403. McRury v. Dominion Coal Co., 306. McSlov v. Smith, 428. ' McSorley v. City of St. John, 449. McVicar v. McLaughlin, 198. N. Nadeau v. Theriault, 125. Napier v. Ferguson, 170. Nash v. Bush, 137. Nash v. Glover, 556. Nash v. Inman, 14. Nason v. Armstrong, 207. Natal Land Co. v. Pauline, 513. Nathan v. Jacob, 19. National Bank v. Rymill, 456. National Bank of Australasia v. Falk- ingham, 483. National Exchange Co. of Glasgow v. Drew, 44. National Mercantile Bank v. Hampson, 587. National Phonograph Co. v. Edison Bell Consolidated Phonograph Co., 436. N( al v. Krving. 229. Neale v. Gordon-Lennox, 180. Neelon v. Toronto, 173. 286. Neil v. Almond, 555. Neilson v. Trusts Corporation, 238. Nelson v. Whittall, 82. Nesbit v. Pott's Contract, In re, 482. Neverson v. Seymour, 09. Neville v. Benjamin, In re, 29. Neville v. Fox. 470. New Brunswick R. W Co. v. Arm- strong, 349. New Brunswick R. W. Co. v. Kelly, ."Tt). Newcastle (Duke) v. Broxtowe Hun- dred, 38. Newcombe v. Anderson. 296. Newcomen v. Lynch, 516. Newell v. Canadian Pacific R. W. Co., 346. New Hamburg Manufacturing Co. v. Shields, 73. Newlands v. Higgins, 582. New London Credit Syndicate v. Neale, 23. Newsman v. Carr. 446. Newton v. Allin. 488. Newton v. Belcher. 41. Newton's Case, 188. Newton v. Chaplin, 179. Newton v. City of Brantford, (Add. p. xv.) Newton v. Harland, 135. Newson v. McLean, 186. Nicholls Chemical Co. of Canada v. Forster, 334. Nicolls v. Dowling, 44. Nicolls v. Duncan, 467 Nichols v. Pitman. 382. Nicholson v. Burkholder, 69. Nicholson v. Page, 79. Nicholson v. Revill, 5S9. Nightingale v. Union Colliery Co. of British Columbia, 172, 308, (Add. p. xvi. ) Niles v. Burk. 35. Nixon v. G. T. R.. 343. Noble v. Edwards. 204. Noble v. Ward, 59U. Nolan v. McAdam, 259. Norburn v. Hellian, 188. Nordenfelt v. Maxim Co., 542, Nordheimer v. Alexander, 310. Nordheimer v. Robinson, 535, 598. Normand v. Hull Electric Co., 551. North v. Fisher, 65. North American v. Craigen, 237, 239. North American Land and Timber Co. v. Watkins, 563. 564. North Shore R. W. Co. v. Pion, 376. North West Rubber Co. v. Huttenbach, 262. North West Transportation Co. v. Mc- Kenzie, 246, 514, 538. Northern Elevator Co. v. Lake Huron and Manitoba Milling Co., 597. Northey Mfg. Co. v. Sanders, 256. Northwestern National Bank v. Jar- vis, 64. Norton v. Ellam, 554. Nourse v. Foster, 442. Novelli v. Rossi. 73. Noxon v. Noxon, 391. Nunn v. Brandon. 419. Nunn v. Fabian, 535. Nytton v. Duck. 369. TABLE 01' CASES. xlvii 0. O'Brien, Re, 03. O'Brien v. Michigan Central It. R. Co., 309. O'Brien v. Banford. 333. O'Brien v. Village of Trenton, 3GS. O'Connor v. City of Bamilton, 313, O'Connor v. Foley, 503: < )'( ionnoi v. I remmill, 2G4. O'Connor v. Nova Scotia Telephone Co., 32. O'Connor v. Peltier, 426. O'Connor v. Reid, (Add. p. xin.) O'Connor v. Township of Otonabee, 356. O'Donnell v. Hugill, 215, 280, 535. O'Donohoe v. Whitty, 2G4. O'Gorman v. O'Gorman. 325. O'Hara v. Dougherty, 437. O'Keefe v. Taylor, 591. O'Mara v. Eden, 365. O'Neill v. Drinkle. 205. O'Neil v. Perrin, 80. O'Reilly v. O'Reilly, 63. Okell v. Dickson. 520. Oland v. McNeill. 83. Oldfield v. Diekson, 209. Oldham v. Wolley, 56, 105. Oldright v. G. T. R.. 344. Oliver v. Bank of England, 509. Oliver v. Dominion Iron and Steel Co., 329. Oliver v. Hinton, 582. Oliver v. Lockie, 373, 376. Oliver v. McLaughlin, 410, 411. Oliver v. Newhouse. 587. Oliver v. Powell, 476. Omichund v. Barker, 147. Omnium Securities Co. v. Richardson. 43, 538. Ontario v. O'Dea, 488. Ontario Bank v. Gosselin, 245. t Inta rio Bank v. Lamonl , 407. Ontario Hank v. W'ilcnx, 166, 585. Ontario Industrial Loan and Invest- ment Co. v. Lindsey, 508. Ontario Mining Co. v. Seybold, 549. Ontario Salt Co. v. Merchants Salt Co., 61. Ontario and Western Lumber Co. v. Citizens Telephone and Electric Co., 62. 286. Oppenheimer v. Attenborough, 509. Orange et a I. v. McKay. 246. Orchard v. Bush, 297. Ord v. Portall. 226. Ormond v. Holland. 32S. Orr-Ewing v. Colquhoun, 370. On- v. Spooner 443. Osgood v. Hatch. 62. Ostell v. Lepage, 74. Ostrander v. Jarvis, 524. Ostrom v. Sills, 560. Ouilette v. LeBel. LI. ( Mitram v. Morewood, 36. Overweg, In n, 515. Owen v. Outerbridge, 301. owen v. Taylor, 293, 427, 596. Owston v. Grand Trunk R. W. Co., 294. Pabsl Brewing Co. v. Ekers, 387. Page v. Defoe, (Add. p. xix.j Page v. Phelan, 7'i. Paisley v. Broddy, 505. Paisley v. Wills. liiO. Palethorp v. Furnish, 45. Paliu v. Reid, 296. Palmatier v. McKibbon, 3G5. Palmer v. Michigan Central R. R. Co., 345. palmer v. Winstanley, 574. Panama Mail Co. v. Kennedy, 408. Paquin v. Beauclerk, 30. Paradis v. Parks, 325. Park V. Henderson. 34. Park v. White, 355. Parker v. Elliott, 375. Parker v. McWilliams, 167. Parker v. Parker, 151. Parkinson v. Lee, 254, 255. Parkin v. Moon, L55. Parks v. Maj bee, 550. Parmenter v. Webber, 487. Parr's Banking Co. v. Yates, 519. Parsons v. Hart, 596, 598. Parsons v. New Zealand Shipping Co.. 2 12. Parsons v. Queen Ins. Co., ISO. Partlo v. Todd, 385-386. Partridge v. Scott, 362. Pasco v. Wegg, 397. Pasley v. Freeman, 394. Paterson v. Gandassequi, 277. Paterson v. Maughan, 583. Paterson v. Todd. 71. Paton v. Wilkes, 251, 253. Patric v. Sylvester, 392. Patrick v. Milner, 209. Patullo v. Boyington, SS. Patterson v. Campbell, " | '>2. Patterson v. Central Canada, 219. PatteshaU v. Turford, 38. Pattison v. McNabb, 143. Patton v. Alberta Railway and Coal Co., 331. Patton v. Laidlaw. 573. Paul v. The King, 320. Pavey v. Davidson, 67. Payne v. Ibbotson, 179. Payson v. Equitable Fire Ins. Co., xlviii TABLE OF CASES. Payton v. Snelling, Lainpard & Co., 385. Peaceable v. Watson, 37. Peacock v. Cooper, 7. Peacock v. Freeman, Add. xiii. v. Gardni r, 538. Pearce v. Hooper, 86. Pearce v. Sheppard, 313. Pearson v. Dublin Corporation, 530. Pearson v. Spencer, 364. Pease v. Town of Moosomin, 173. Peck v. Peck. 431). Peck v. Powell, 209. Peek v. Derry, 531. Peers v. Allen, 596. Peers v. Bryon, 4S9. Peloquin v. Cohen, 211. Pelton v. Temple, 172. Pemberton v. Hughes, 74. Penny v. Foy, 499. Penny v. Wimbledon Urban Council, 359, (Add. p. xvi.) Penruddock's Case. 358. People's Loan v. Grant, 196. Perdue v. Canadian Pacific R. Co., (Add. p. xvi.) Perkins y, Dangerfield, 187. Perkins v. Smith. -154. Perrault v. Gauthier, 433. Perring v. Tucker, 177. Perry v. Gibson. 137. Perry v. .xeweastle Ins. Co., 292, 293. Perry v. Patterson, 452. Peterkin v. McFarlane, 579. Peters v. Devinney, 325. Peters v. Hamilton, 12. Peters v. Perras, 224. Petit v. Renard. 26. Petrie v. Guelph Lumber Co., 204. Petri'- v. Hunter, 286. Peuchen v. City Mutual Company, 235. Peuchen v. Imperial Bank, 187, 253, 278 Pewes v. Hall. 369. Phelan v. Montreal Investment and Freehold Co.. 283. Phelps v. Prow. 130. Phene v. Popplewell, 488. Phene's Trusts, In re, 29. Philips v. Pennel. 77. Phillifant v. Keller, (Add. p. xvi.) Phillipart v. Whiteley, 387. Phillip v. Knoblanch, L03. Phillips v. Hornfrny. 294, Phillips v. Jones, 515. Phillins v. London and South Western R. W. To.. (Add. p. xiv.) Phillips v. Phillips, 250. Phillips v. Zimermnn. 200. Phillipson v. Hayter, 171. Philliskirk v. Pluckwell, 28. Phipr.- v. New Claridge'a Hotel, Lim- ited, 15. Phoenix v. Anehor. 231. Picard v. Syndics des Chemins & Bar- riers de la Rive Nord a Quebec, 361. Pickford v. Grand Junction R. Co., 299. Pickles & Mills v. Western Assurance Co., 513. Pierce v. Canada Permanent. 578. Pigot's Case. 517. Pink v. Perlin & Co., 30, 65. Pinney v. Hunt, 87. Pion v. North Shore R. W. Co., 376. Pirie v. Wyld, 43. Planche v. Colburn, 285. Plant v. Bourne. 207. Plath v. Grand Forks and Kettle River Valley R. W. Co., 349. Piatt v. Gore District Mutual Fire Ins. Co., 10. Piatt v. Grand Trunk R. W. Co., 406. Pledge v. White. 576. Plenderleith v. Parsons, 107. Plumb v. McCannon, 375. Plummer v. Woodburu, 73. Poitras v. Pelletier, 401, 472. Polini v. Gray, 38. Poll v. Hewitt. 330. Pomeroy v. Baddeley, 167. Pontying v. Nokes, 302. Port Elgin v. Eby, 250. Porteous v. Muir. 23. Porter v. Flintoff, 465, 406, 586. Porter v. Hale, 21. Potter v. Duffield, 203. Potter v. Rankin, 230. Potts v. Temperance and General, 230. Poulton v. Adjustable Cover and Boiler Block Co.. 48. Pound v. Wilson, 163. Powell v. Calder. 403. Powell v. Wathen, 406 Power v. Ellis. 106. Pratt v. Brunnell, 259. Preece v. Corrie. 487. Prendergast v. v*. T. R., 345. Prentice v. Consolidated Bank, 317. Prentice v. Elliott 488. Prescott v. Connell, 300. Preston v. Toronto R. W. Co., 352. Price v. Dewhurst, 73. Price v. Lloyd, 216. Price v. Moulton, 507. Price v. Torrington, 38. Priestly v. I^crnie, 277. Primrose v. Waterston, 173. Prince v. Samo, 156. Pringle v. Hutson, 106. Prittie v. Connecticut Fire Ins. Co., 522. Prondfoot v. Hart, 494. Provincial Fisheries, In re, 370. TABLE OF C-'. xlix Provident Savings Life Ass. Soc. v. Mow; at, 239. Prudential Assurance Co. v. Edmonds, 30. Pryse, In re, 453. Pogh and Sharman's Casi . 18. Purdom v. Pavey & Co., 64. Purdom v. Robinson, 367. Purmal v. City of Medicine Hat, 314 Puterbaugh v. Gold Medal Furniture Manufacturing Co., 419. I'm man. The W. G-. 234. Pyper v. McDonald. 402. Q. Quarrier v. Colston, 06. Quebec Bank v. Taggart, 521. The Queen's Case, 147. 156, 160, 1.61. Queen. The, v. Budge, 36. Queen, The, v. Deeming, 252. Queen, The, v. Grenier, 354. Queen. The, v. LaForce, 393. Queen, The, v. Robertson, .".To. Queen. The. v. The Sailing Ship "Troop" Company. 96. Quisrley v. Desjardins, 545. Qninn v. Leathern, 434, 435, 436. Quintal v. Chalmers. 176. Quinton v. Firth. 556. Q. M. & S. Rw. Co. v. Landry, 2G2. R. R. v. Adams, 198. 298. R. v. Adey, 165, 177. R. v. Aldred. 424. R. v. Anderson, 126. R. v. Bathwick. 78. R. v. Bedfordshire, 35. R. v. Bennett, 17. R. v. Bingham, 95. R. v. Bjornsen, 96. R. v. Brewster, 361, 558. 560. R. v. Cambrian Railway, 378. R. v. Chesley, 499. R. v. College of Physicians and Sur- ■:< ions of Ontario, 401. R. v. Cosby, 364 R. v. Cotton, 35. R. v. DeBerenger, 88. R. v. Dixon. 28. R. v. Doty, 430. R. v. F.ari. 126. R. v. Fd wards, 165. R. v. E. Parleigh, 18. R. v. Fontaine Moreau, 59. R. v. Glamorganshire County Council, 500. R. v. Garbett. 42. R. v. Giles, 86. R. v. Grant. 179. R. v. Great Western R. W. Co., 3oS. R. v. Greene, 97. k.e. — D R. v. Harrington. 72. R. v. Haughley, 61. R. v. Haughton, 97. R. t. Hill. 146. 549. R. v. Holding, 165. R. v. Holt, R. v. Howard. ."1 R, v. Joliffe, 18. R. v. Kehr. 441. It. v. Landhorn, 167. R. v. Layer. 167. R. v. Llanfaethly, 18. R, v. Mothersell, 60. R. v. Murphy, 146. It. v. Norfolk County Council, 79. R. v. Oberlander, 17. R. v. Osier. 359 R. v. Pah-Mah-Gay, 148. R. v. Parsons, 49. R, v. Perrin, 324. R. v. Rawson, 202. R. v. Robertson. 159, 375. R. v. Sharp, 375. R. v. Smith. 76. R. v. Somers, 541. R. v. St Martin's Leicester, 84. R. v. Stafford, 167 R. v. Stoke-Golding, 18. v. Sutton. 88. 97. v. Tolson, 95. v. VanNorman, 150. v. Warden, 59. v. Watson, 16, 80. 166. v. Webb, 145. v. Williams, 07, 558. v. Whitehead, 146. R. v. Yewing, 167. Rabey v. Birch, 14S. The Racine. 320. Radcliffe v. Evans. 437. Radford v Macdonald, 151. Rae v. McDonald, 187, 403, 405. Rainbow v. Howkins, 510. Rainnie v. The St. John City Ry. Co. 309. Rainville v. Powell. 137. Rainsville v. G. T. R. Co.. 340. Rainy v. Bravo, 8. 17. Rajotte v. Canadian Pacific R. W. Co., 186. Rambert V. Cohen. 15. Ramsay v. X. Y. C. R. R. Co., 281. Randall v. Atkinson. 145. Randel] v. Trimer, 257. Rankin y. Harlev. 515. Rankin v. Mitchell. 450. Rassam v. Bud^e. 422. RatclifTe v. Barnard. 582. Ratcliffe v. Brans, 492, 545. Ratte v. Booth. 189. Ravenga v. Mcintosh. 441. Rawlings v. Coal Consumers' Associa- tion, 544. R. R. R. R. R. R. R. R. TABLE OF CASES. Rawlins v. Desborough, 174, 177. Rawlins v. Wickham, 215. Ray v. Isbister. I'!'.". Raymond v. Cummings, 48. Reade v. Bentley, 509. Read v. Friendly Society of Operative Stonemasons, 435, 436. Read v. G. E. R.. 353. Read v. Lillie, The, 322. Rearden v. M inter. S6. Rector, etc., of Hampton v. Titus, 220. Rector, etc.. of Sackville v. Bacon, 218. Redgrave v. Hurd. 211. Redmond v. Redmond. 266. Redway v. Ranham, 47. Reed v. Jackson. 71. Reed v. King, 163. Reed v. Taylor, 443. Reed and Another v. Weldon, 233. Re Reed & Wilson, 549. Reford v. McDonald. 154. Reid, In re, 527. Reid v. Ratte, 16 Reid v. Creighton 54. Reid v. Fairless, 135. Reid v. Hardin?, 533. Reid v. Margison, 49. Reid v. Whitehead, 580. Reignolds v. Edwards. 366. Reilander v. Bengert. 423. Renald v. Walker. 553. Renals v. Cowlishaw, 482. Rennie v. Block, 315. 522. Rennie v. Frame. 558. Renton v. Gallagher, 443. Rettinger v. Macdougall, 267. Reynolds v. Ashby & Son. 464. Reynolds, Ex parte, 165. Reynolds v. Jamieson, 258. Reynolds v. Roxburgh, 254. Rhodes v. Executors of Crawford. 295. Rice v. George, 479. Rice v. Gunn. 63, 64. Rice v. Nokes. 576. Rice v. Town of Whitbv. 314. Richard v. Stillwell, 250. Richards v. Rank of Nova Scotia, 458, 507. Richards v. Gillatly, 42. Richards v. Lewis, 19. Richard-- v. Morgan. 51. Richardson v. Dunn, 42. Richardson v. Silvester, 437. Ricketts v. Sydney and Glace Bay R. W. Co. ; 352. Ricketts v. Village of Markdale. 357. Ridley v. Gyde. 158. Ridley v. Lamb. 311. Rielle v. Reid. 404. 409. Riendeau v. Peck Rolling Co., 331. Ring v. Potts, 395. Ring v. Pugsley, 363. Ringland v. City of Toronto, 356. Ripley v. Riplev, 450. Ripon City, The, 247, 248. River Stave Co. v. Sill. 64. Rivers v. Griffiths. 596. Robbett v. South Eastern R. W. Co., 351. Roberts, In re, 488. Roberts v. Bank of Toronto, 474. Roberts v. Bethell, 225. Roberts v. Hall. 546. Roberts v. Mitchell. 326. Robertson v. Burrill, 559. Robertson v. G. T. R., 300. Robertson v. Lonsdale, 228. Robertson v. Pugh, 231. Robertson v. Skelton, 208. Robertson v. Watson. 371. Robins v. Carson, 137. Robinson v. Bogle, 385. Robinson v. Chadwick. 142. Robinson v. Cook. 179. 405. Robinson v. Coyne, 566. Robinson v. Dunn. 421. 510. Robinson v. Harris. 208, 209. Robinson v. Owen Sound. 286. Robinson y. Pnrdom, 368. 560. Robinson v. Rapelje, 173. Robson, Re, 424. Roche v. Roche. 574. Roche v. Ryan, 365, 368. Rochefoucauld v. Boustead, 599. Rochleau v. Bidwell. 205. Rodgers v. Llamilton Cotton Co., 309. Rodgers v. Parker. 425. Roe v. Braden, 575, 580. Roe v. Lucknow, 31S-326. Rogers v. Devitt. 9. 448. Rogers v. Hamilton Cotton Co., 309. Rogers y. Shortis, 581. Rogers v. Sorrell, 494. Rogers v. Toronto Public School Board, 326. Rolfe v. Abbott. 279. Rolin v. Stewart. 292. Rombough v. Raich, 350. Rose, Re, 260. Rose v. Cuyler, 84. Rose v. McLean, 387. Rose v. Peterkin, 579. Rose v. Poulton, 480. Rose v. Savory. 40. Rose v. Scott. 585. Rosen v. Lindsay, 531. Rosenbaum v. Belson, 203. Rosenberger v. Grand Trunk R. W. Co., 342. Ross, Re, 290, 291. 407. Ross v. Rucke, 420. Ross v. Edwards, 274, 465. TABLE OF CASES. Ross v. Elliott, 585. R isa v. Fox, 570. Ross v. Grand Trunk R. W. Co., 351. Ross v. Hannan, 270. Ross v. I [ope, 586 Ross v. Hunter, 9, 578, 582. Ross v. Orr, 516. Ross et al. v. McKenzie, 451. Ross v. Poraeroy, 557. Ross v. Ross, 04. Ross v. Williamson, 22. Rossiter v. Miller, 205. Rossland Cycle Co. v. McCn;a"die, 30. Routledge v. Hislop, 70. Routledge v. Ramsay, 561. Rowe v. Brenton, 38, 153. Rowe v. Grand Trunk R. W. Co., 317. GOO. Rowe v. Street, 4S1. Rowe v. Titus, 374. Rowlandson v. Wainwright, 42. Rowlev v. London and N. W. Ry. Co., 350. Roy v. Fraser, 373. Roy v. Strubhe, 327. Royal Canadian Rank v. Brown, 7. Royal Canadian Ins. Co. v. Montreal Warehousing Co., 198. "Royal Electric Co. v. IIev<\ 352. Royal Victoria Life Co. v. Richards, 238 Rudd v.' Bell. 334. Kundle v. .McNeil. 39. Rush v. Smith, 137. Rushforth v. Hadfield, 470. Russell, Ex p., 401. Russell v. Canadian Life Assurance Company, 7. Russell v. Marshall, 170. Russell v. Russell. 577. Russo-Chinese Bank v. Li Yau Sam. 508, (A.M. p. xiv.) Ruston's ( Jase, 140. Rut tan v. Beamish, 405, 5S0. Rut tan v. Shea. 315. Ryall v. Rich. 498. Ryan v. Fish, 4 19. Ryan v. James, 189. Ryan v. McConnell, 317. Ryan v. McKerral. 225. Ryan v. Ryan. 560. Rylands v. Fletcher, 328. Rymer v. Cook. 176. S. Sr. Catharines Milling and Lumber Co. v. Re-.. 549. St. Denis v. Higgins, 210. St. Denis v . Shultz. 444. St Edouard School, etc.. v. Employers' Liability Ass. Corp., 240. St Hyacinthe Case, The. 590. St. John v. Bullivant, 585. St. John v. Rykert 196. St. Thomas v. Yearsley, 528. St. Vincent v. Greensfield, 14. Sadden v. Sergeant, 157. Salvasen v. Rederi AktieboIag«t, Nordsternan, 509. Sampson v. Hoddincott, ."72. Samuel v. Coulter. 588. Samuel v. Fairgrieve, 228. Samuel v. Whetherly, 509. Sanders v. Sanders, 502. Sanderson v. Berwick-upon-Tweed Cor- poration, 480. Sanderson v. Burdett, 25, 209. Sanderson v. Collins. 523. Sanderson v. Heap, 54'J. Sandilauds v. Bathgate, 318. Sangster v. T. Eaton Co., 300, 550. Santley v. Wylde, 544, 576. Sarson v. Roberts, 494. Sartell v. Scott. 35. Saskatchewan Land and Homestead Co. v. Leadlay, 190. Sauer v. Bilton. 594. Saults v. Eaket. 26. Saunders v. Breakie, 219, 220. Savage v. Breton, 439. Savage v. Canadian Pacific R. W. Co., 344. Sawyer v. Pringle, 276. Sawyer v. Thomas, L'22, 573. Sawyer and Massey Co. v. Bennet, 205. Sawyer and Massey Co. v. Boyce, 00. Sawyer and Massey Limited v. Bou- chard, 81. Sawyer- .Mass.y Co. v. Hodgson, 506. Sawyer-Massey Co. v. Ritchie, 283. Sax, In re, 543. Saxby v. Fulton, GO. Saxlethner v. Appolinaris Co., 47. Sayer v. Glossop, 95. Sayles v. Brown, 517. Scane v. Duckett, 203. Scaramanga v. Stamp, 244. Scarborough v. Cos-rove, 298. Scarf v. Jardine, 572. Scarlett v. Nat tress, 4S0, 4S2, 483, 520. Schmidt v. Crowe, 538. Schmidt v. Town of Berlin, 313. Schneider v. Norris, 203. Scholes v. Hilton, 130. Schrader v. Lillis, 5 11. Schultz v. Roddick. 425, 426. Schwoob v. Michigan Central R. W Co., 330. Scott v. Avery. 481. Scott v. Bank of New Brunswick, 395. S • v. Burnham, 411. Scott v. Curry, .~><»7. Scott v. Dent, 594. Scott v. Hunter, 410, 450. v. Liverpool, 286. Hi TABLE OF CASES. Scott v. London nnd St. Catharine Docks Co., 306. Scott v. Miller, 165. Scott v. Reburn, 433, 445. Scott v. Scott. 239. Scott v. Tyler. 546. ish American v. Sexton, 464. S iugall v. Stapleton, 155, 172. Sea, /« re, 565. Seagrave v. Union, 229. Seal v. Claridge, 85. Sears v. Lyons, 44S. Secor v. Gray, 224, 291. Sedgwick v. Montreal Light Co., 232. Seery v. Federal Life, 238. Seldon v. Buchanan, 488. Severin v. Kepell, 454. Severn v. McLellan, 578. Sewell v. Evans. 85. Sewell v. Olive, 431. Sexton v. Shell. 212. Seymour v. Winnipeg Electric It. W. Co., (Add. p. xv.) Shafe v. Parr, 51. Shallcross v. Palmer, 104. Shallow v. Lessard, 288. Shank v. Coulthard, 24. Shannon v. Hastings Mutual Ins. Co., SO. Shannon v. Toronto, 520. Sharp v. Powell, 361. Sharp v. Wilson, 372. Siiaw v. Foster, 20S. Shaw v. Grand Trunk R. W. Co., 302. Shawinigan Carbide Co. v. Saint Onge, 332. Shepherd v. Shorthose, 87. Shepley v. Ilurd. 222. Sheppard v. Bonanza, 514. Sheppard Publishing Co. v. Harkins, 267. Sheridan v. Pidgeon, 188. Sherlock v. Powell. 287, 288. Sherrat v. Merchants Bank, 522. Sherren v. Pearson, 451, 560. Shore v. Shore, 81. Shorey v. Cook, 364. Shovelin v. Hanson. 513. Shuttleworth v. LeFleming, 597. Shuttleworth v. Nicholson, 179. Shuttleworth v. Shaw, 488. Sibbald v. G. T. It.. 342. Sibley v. Sibley, 466. Siddons v. Short. 362. Sidebotham v. Holla ml. 532. Sievert v. Brookfield, 308 Sikes v. Howarth, 389. Sills v. Bickford, 553. Silver: horn v. Hunter. 312. Simonds v. Coster, 107. Simmons v. Parminter, 226, Simmons v. Simmons. 240. Simpson v. Eaton. 363. Simpson v. Fogo, 73. Simpson v. Foote, 83. Simpson v. Stewart, 105. Simpson v. Thornton, 19. Simpson v. Toronto and York Radial R. W. Co., 353. Sims v. Grand Trunk R. W. Co., 347. Sims v. Landry, 532, 599. Sinclair v. Haynes, 442. Sinclair v. Preston, 195. Sinclair v. Robson, 222. Sinclair v. Ruddell, 446. Sinclair v. Stevenson, 170. Singer Sewing Machine Co. v. McLeod, 65. Singleton v. Barrett, 16. Sivert v. Brookfield, 308. Skilitzskey v. Cranston, 365. Skinner v. Andrews. (Add. p. xiii.) Skipper v. Holloway, 520. Slater v. Smith, 534. Slatterie v. Pooley. 16, 42. Slazenger v. Spalding, (Add. p. xix.) Sloan v. Whalen, 71. Slouski v. Hopp, 571. Sly v. Sly, 104. Small v. Allen, 37. Small v. Grand Trunk R. W. Co., 369. Smart v Niagara and Detroit R. W. Co., 196. Smiles v. Eelford, 25. 379, 382. Smith v. Andrews, 149. Smith v. Archibald, 48. 172, 256. Smith v. Ashforth. 425. Smith v. Baker, 309, 330, 347, (Add. p. xvi.) Smith v. Blakey, 38. Smith v. Blandy, 40. Smith v. Chadwick, 394. Smith v. Chance. 275. Smith v. Fair. 586. Smith v. Fleming, 22S. Smith v. Fulton, et al., 33, 247. Smith v. Goldie. 389, 391, 393. Smith v. Giddy. 362. Smith v. Green, L'i4. Smith v. Humbert, 360. Smith v. Jamieson, 258. 534, 550. Smith v. Lunt, 303. Smith v. Marrable. 218. Smith v. McDonald, 396. Smith v. McGugan, 267. Smith v. McGuire, 243. Smith v. McLean, 54. Smith v. McKay, 441. Smith v. Peat, 494. Smith v. Bedford, 61. Smith v. Smith. 90. Smith et 90. JcCai thy, 209. v. Pritchard, 531. Steevens I [osp. v. I >yer, 00. Si. --man v. O'Connor, 1>7. Stella. The. "JIT Stephen v. Ford. :; I. Stephen v. Simpson, 581. Stephens v. Beatty, 553. Stephens Bros. v. Burch, 2S0. Stephens v. < Jhausse, 331. Stephens v. Blwall, Stephens v. McArthur, 400, 412. Stephenson v. Lain. 20S. Stephenson v. Hart. 4->4. Stern v. Pullman Car Co., 302. Steven v. Benning, 569. Steven v. Lurch. 276. St evens v. Barfoot. GS. S evens v. Midland Counties Railway, 441. Stevmson v. Clarke, 2S0. Stevenson v. Davis. 208, 209. Steward. In re, ."40. Stewart v. Freeman, 596. Stewart v. Borton. 25. Stewart v. Lees, 107. irl v. London and N. W. R. W. Co., 301. Stewart v. McLaughlin, 540. Stewart v. Sculthorp, 274. u-t v. Walker, 152, 155, 10G. Stewart v. Woolman, 123. Still v. Ilalford, 95, 261. Still v. Hastings, 44o, 441. Stilson v. Kennedy, 7(>. Stimson v. Block, jr.o. Stin-on v. Magill, 490. >n v. Pennock, S to' 1 art v. Dryden, 8 1. Stockdale v. Ascherberg, 359. S ockt d v. Collin. SO. v. Marine ins. Co., 230. Stooke v. Taylor. 594. v. Veach, 316. irl v. Billiard, 366, 559. Stovel v. Gregory, 559. v. Querner, 107. Strachan v. Jones, 168. ' ird Gas Co. v. Citv of Stratford 287, 546. Stratford Water Co. v. Sharman, 4."7. Strauss v. Francis, 18S. Street V . Blay, 282. Street v. Canadian Pacific R. W. Co.. 311. I v. Faulkner, 137. Streel v. Morrison, 321 Strickland v. Williams. 7,l Taylor v. Caldwell, 274. 546, 591. Taylor v. Chester, 540. Taylor v. Clemson, 76. Taylor v. Cook, 44. Taylor v. Corporation of St. Helen's, I'm;. Taylor v. Cummings, 411. Taylor v. Great Eastern Railway, 272. Taylor v. Hollard, 75. Taylor v. Manchester R. W. Co., 341. Taylor v. Massey, 421). 421. Taylor v. Parry, 97. Taylor v. Poirier, 282. Taylor v. Robertson, 264. 315. Taylor v. Regis, 152. Taylor v. Smith, 272. Teeter v. St. John. 198. 299. Telfer v Jacobs. 368. Tellier v. Eurness- Withy Co., 529. Temiscouata Ry. Co. v. Clair, 451. Temperton v. Russell, 434. Temple et al. v. McDonald, 218. Templeton v. Waddington, 315. Tennant v. Gallow, 531. Tennant v. MacEwan, 406. Tenner v. Smith, 271. Tenute v. Walsh. 409. Ternan v. Flinn, 365. Terry v. Sweeting, 395. Thackery v. Askin, 317. Thayer v. Street, 52. Thayer v. Vance. 187. Thetford Case, 59. Tbibaudeau v. Paul, 586. Third National Bank of Chicago v. Cosby, 63, 223. Thomas v. Crooks, 214. Thomas v. Evans, 595. Thomas v. Quartermaine, 310. Tbomas, A. E. (Ltd.), v. Standard Bank, 5S3. Thomas v. Township of North Nor- wich, 361. Thompson v. Bennett, 56, 84. Thompson v. Canada Central R. W. Co., 351. Thompson v. Cameron, 254. Thompson v. Didion, 12. Thompson v. Dickson, .~>t ;."">. Thompson v. Donaldson, 87. Thompson v. Doyle, 11, 566. Thompson v. Fowler, 243. Thompson v. G. T. R. «'!4.J. Thompson v. Hichman, 61). 571. Thompson v. Mott, 448. Thompson v. Thompson, 169. Thompson v. Trevanion, 36. Thompson v. Wright, 330. Thomson v. Austen, 46. Thomson v. Davenport, 277. Thomson v. Eede. 249. 539 Thomson v. Mathieson, 539. Thomson v. Quirk, 68. Thomson v. Wishart, 564. Thorley's Cattle Food Co. v. Massam, 414. Thorley v. Orchis Steamship Co., 244. Thorne v. Barwiok. 538. Thresher v. East London Waterworks, 488. TABLE OF CASES. lv Thuman v. Best, 511. Tbursby v. Eccles, 535. Thurston v. Charles. 77. Tibbatts v. Boulter, 591. Tibba v. Wilkes. 268. Tichborne v. Weir, '<<■'■'•. Tidy v. Toronto, 1 ( .".. Tiedemann, In re, 507. Tiffany v. McCumber, 20. Tiffany v. McNee, 123. Tildesley v. Harper, 8. Tilley v. Thomas, 200. Tipping v. St. Helen's Smelting Co., 355 Tisdale V. Dallas. 211. Titus ct al. v. Haines, 221. Tobin v. Symonds et al.. 246. Toleman v. Johnson. L55. Toleman v. Portburys 10, 493. Toll v. Canadian Pacific R. W. Co., ::i»s. :«s. Tollel v. Toilet, 81. Tomkins v. Tibbits. 159. Tomlinson v. Hill. 259. Tomlinson v. Morris, 255, 282. Topham v. Dent. 430. Toronto v. Lorsch, 358. Toronto Auer Light Co. v. Colling, 392. Toronto Drop Forge Co., Be, 285. Toronto Furnace Crematory Co. v. Ewing, 588. Toronto General Hospital Trustees v. Denham, 484. Toronto General Trusts Co. v. Quinn, 525. Toronto R. W Co. v. Dollery, 356. Toronto R. W. Co. v. Gosnell, 352. Toronto K. W. Co. v. Mulvaney, 353. Toronto R. \V. Co. v. Snell. 353. Toronto M W. Co. v. Toronto, 191, 352. Toronto Ry. v. Toronto Corporation, •IS. Toronto Telephone Mfg. Co. v. Bell Telephone Co., 392. Torrens v. Walker, 404. Totten v. Douglas, 404. Town v. Arthur. 265. Town of Cornwall v. Derochie, 356. Townsend v. ITowarth. 389. Townsend v. Toronto, Hamilton and Buffalo R. W. Co.. 190. Township of P.roek v. Toronto and Nipissing R. W. Co., 351. Township of East Zorra v. Douglas, 25° Township of St. Vincent v. Greenfield, 25 Tracy, In re, 202. Trebilcoch v. Walsh. 202. Tredway v. Machin. 312. Trent Valley Woollen Mfc. Co. v. Oelrichs. 272. 507. Trevelyan v. Myers. 7.", Trimble v. Goldberg. 515. Trimble v. Hill. 529. Trimble v Lanktree, •".",!. 536. Trimble v. Miller, 221. Trotter v. Western Fire Ins. Co., 237. Truesdale v. Cook, 576. 579. Truman v. Rudolph, 330, 333. Trust and Loan < '<>. v. McKenzie, 506. Trust and Loan Co. v. Shaw. 580. Trust and Loan Co. v. Stevenson, 559. Trust- and Guarantee Co. v. Hart, '■'>-■ Trusts Corporation of Ontario v. City of Toronto, 2S0, 574. Trusts Corporation of Ontario v. Rider, 520. Tuck A: Sons v. Priester. 379. Tucker v. Barrow. 42. Turley v. Bates. 271. Turner v. Burns, 172, 402. 541, 545. Turner v. Dewar, 'M. Turner v. Goldsmith, 591. Turner v. Green, 591. Turner v. Moon, 495. Tweedle v. Atkinson, 4S0. Tyke v. Cosford, 205. Tylden v. Bulb a, 83. Tyson v A.bercrombie. 25. Tyson v. Grand Trunk R. W. Co., 346. U. Underwood v. Barker. 542. T'nion Assurance Co. v. Lang, 236. Union Bank of Canada v. Clark, 240. Union Bank of Canada v. Rideau Lum- ber Co., 453. Union Investment Co. v. Wells. 224. T'nion Lighterage Co. v. London Grav- ing Dock, 562. United Loan Club v. Bexton. 27. United Shoe Manufacturing Co. v. Bru- nei, 542. United States Exp. Co. v. Donohoe. 291. Upson- Walton Co. v. " Brian Boru," 247. Urquhart v. Macphcrson, 291, 5S9. Ussher v. Simpson, 43. Utterson Lumber Co. v. Rennie, 581. Oxford v. Provand, 202. Vallee v. G. T. R., 347. Valpy v. St. Leonard's Wharf Co.. 359. Van Buskirk v. North River Lumber Co.. 244. Van Castell v. Booker, 409. Vanderdonckt v. Thellusson, 62. Vandervoort v. Hall. 203. Van Dieman v. Victoria, 227. hi TABLE OF CA.bES Van Every v. Drake, 79. Van Grutten v. Digby, 551. Vanguste Andre. The. 234. Yaukoughnet v. Denison, 35, 80. Vankoughnet v. Ross. 481. Van Mere v. Farwell, 175. Vanuatto v. Mitchell, 154. Vanquelin v. Bouard. 74. Varley v. Whipp, 283. Vaughan v. Ross, 52. Vaughan v. Taff Vale R. W. Co.. 327, 34G. Vautin, In re, 401. The Velasquez. 15. Vermilyea v. Guthrie. 393. Vezey v. Rashleigh, 24. Vezina v. Will II. Newsome Co., 329. Vickers v. Wilcocks. 300. Victorian Railways Commissioners t. Coultas, 318. Victorian Daylesford Syndicate v. Dott, 544. Viditz v. O'Hagan. 551. Vincent v. Sprague, 430. Vineberg v. Grand Trunk R. W. Co., 302. Vint v. Paget. 576. Vivian & Co., H. H., v. Clergue, 212. Vivian v. Scobie. 552. Vogel v. G. T. R. 300. 351. Volant v. Soyer, 136. Vopni v. Bell, 30. Vulcan Iron v. Rapid City, 464. W. Waddell v. Harshaw. 562. Wade's Case, 595. Wadsworth v. Marshall, 130. Wagner, In re, 524. Wainwright, in the Goods of, 33. Wakefield Co. v. Hamilton Co., 514. Wakelin v. London and S. W. R. Co., 308, 311. 347. Waldie v. Grange, 587. Walker, In re, 29. Walker v. Allen, 525. Walker et al. v. Layers. 79. Walker v. Boughner, 267 Walker v. Clay, 5S7. Walker v. The City of Halifax, £67, Walker v. Foster, 57. Walker v. Greal Western R. W Co. 344. Walker v. McMillan, 155, 177. Walker v. Murray, 34. Walker v. Niles, 586. Walker v. Powers-, 259. Walker v. Sharpe, 297. Walker v. Walker, 483. Wallace v. Harold, 217. Wallace v. Hesslein. 214, 215. Wallace v. Moore, 260. Wallace v. Roe, 202. W T allace v. Small, 43. Wallace v. Souther, 223. Wallace v. Vernon, 45. Wallaston v. Barnes. 95. Wallis v. Andrews, 13. Wallman v. Canadian PaciGc R. W. Co., 345. Walter v. Everrard. 550. Walter v. Lane, 3S0. Waltan v. Fenwick, 507. Wall on v. Simpson. 412. Wambold v. Foote. 251. Ward v. Bryne, 542. Ward v. Caledon, 355. Ward v. Great W. R. Co.. 369. Ward v. Haves. 24, 508. Ward, Lock & Co. v. Long, 380. Ward v. Morse. 594. Ward v. National Bank of New Zea- land, 250. Ward v. Taylor, 464. Ward v. The Ship " Yosemite ," 14. Ward v. Wallis, 290. Ward v. Wilbur, 213. Wardrope a - . Canadian Pacific R. W. Co., 20, 50. Warener v. Kingsmill, 74. Warlow v. Harrison, 510. Warner v. Don. 4C4. Warmington v. Palmer, 334. Warren v. Murray, 556, 580. Warring v. Ward, 32. Washington, Re, 205. Waterloo Mutual Ins. Co. v. Robinson, 41. Waterous Engine Works Co. v. Pratt. 213, 591. Waterous v. Henry, 464. Waterous v. McCann, 236. Waters v. Donnelly, 599. Watkins v. Vince. 44. Watkins v. Washburn, 295. Watson v. England, 30 Watson v. Jamieson, 206. Watson v. T '~in2:, 16. Watson v. Li +le, 161. Watson Mfg. Co. v. Stock, 24. Watson v. Mercantile Marine Ins. Co., 233 Watson v. Threlkeid. 279. Watt v. McCuaig, 422. Watt v. Watt. 150. Watteau v. Fenwick. 279. Watterson v. Beaudoin. 539. Waynam v. Bend, 226. Weatherby v. International Horse Agency and Exchange (Add. p. xiii.) Weaver v. Lawrence, 566. Webb v Barton Stoney Creek Road Co., 311. Webb v. Box, 427. TABLE OP CASES. Ivii vVcbi) v. Bast, 136. Webb v. Fairmaner, 275. Webb v. Marsh, 641. Webb v. Smith, 13. Webster v. Foley, 331, 333. Webster v. International Cement Co., L89. Wedgefield v. DeBernardy, 524. Weegar v. (J. T. K.. 34;;. Weese v. Banfield, 109, 505. Weeton v. Woodcock, 4SS. Weinhold v. Klein. 7. Weir v. Bissett. 256. Weir v. C. P. R., 9, 310, 341. Weir v. Niagara Grape Co., 576, 579. Weldon v. Dicks. 382. Weller v. Carnew, 483. Wells v. Abrahams. 292. Wells v. Lindup. 420. Welsh v. Langsfield. 27. Welsbach Incandescent Light Co, v. New Incandescent ("J as Light Co., 390. Wenman v. McKenzie. 71. Wentworth v. Ballett. 431. Westaway v. Stewart, 224. West v. Blaheway, 590. West v. Diprose, 583. West Ham Central Charity Board v. Last London Water Works Co., 221. Western Assur. v. Ont. Coal Co., 231. Western Bank of Scotland v. Addie, 422. Western Counties v. Lowes Chemical, 419. Western v. Scanlan, 231. West Kootenay Power and Light Co. v. City of Nelson, 370. Weston v. Perry, 566. Wetherell v. Bird, 46. Wetmore \ Levy, 125. Wettlaufer v. Scott, 472. Whalls v. G. T. R Co., 354. Wheeler v. Le Marchant, 136. Wheeler v. Montefiore, 451. Whelan v. McLachlan, 375. Whelpley v. Riley, 159. Whitaker v. Izod, L36 White v. Briggs, 219. v. Brown, 280. Flemming, L03. S E. K. Co.. 9. Sage. 397. Stevens, 411. Tomalin, 25, 203. Tomlinson, 536. White. 372. . Pickett 298. 7. Can. Guardian Life, Whit< White White White White White White White Whitehouse Whitehorne 238 Whitelock v. Baker. 31 Whitelock v. Cook. 428. K.E.— E. bib lock v. Musgrove, 85. biting v. Mills, 296. .. Tuttle, 393. hii ■ ier \ . .Mei j onan, 82. hyman v. Gart, 82. hyatl v. Marsh, 266. icker v. Darling, 541. ickstead v. Monroe, 239. ier v. Blois, 59 I. ier v. Leston, r.o I. iggins v. Semi-Ready, nothing Co., 308. ilkes v. Heaton, 133 iley v. Ledyard, 251. ilkins v. Row. 327. ilkinson v. Conklin, 577. ilkinson v. Howel, 440. ilkinson v. King, 457. ilks v. Atkinson, 273. illiams, In re, 553. illiams v. Canadian Lank of Com- merce, 195. illiams v. Corby, 03, 59S Earl, 191. E. I. Co., 9. Felker, 570. Gabriel, 486. Great Western R. W. Co., illiams y illiams v illiams v illiams v illiams \- 346. illiams v illiams v illiams v illiams v. illiams illiams illiams illiams illiams illiams v. Hammond, 2G9. Howarth, 509. Jordan, '2iK',. Leonard <>c Sons, 479. Lake, 202. . Pickard, 372 . McDougall, 264. . Richards, 373. 377. O'Keefe, (Add. p. xiii.) v. Thomas, 259, 453. illiams v. Wilcox, 19. illinsky v. Anderson, 141. ill is v. DeCastro, 589 illis v. Palmer. 29. illiston v. Smith. 420. illoughby v. Backhouse, 590. ills v. Belle Ewart Ice Co., 332. ills v. Carman, 419. 420, 421. ilmot v. Gardiner, L95. Jarvis, 3jl6. Stalker, 205. Laird, L07. Campbell, 584. I !ity of Winnipeg, 4 M), 1 1 1 Fleming, 180. Finch Hat ton, 21S. Hume. 321. Rykert, 51& 561, 573. Shaver, 2i5. Street, 26. Tennant, 439. 443. Thorpe, 51. Ward, 511. ilmot v. ilmot v. ilson v ilson v. ilson \. Ison v. ilson v. ilson v. ilson v. ilson v. ilson v. ilson v. ilson v. ilson V. mil TABLE OF CASES. Windhill Local Board of Health r. Vint, 344. Winfield v. Kean, 438, 442. Winkfield, The, 313, 523. Winn v. Bull, 205. Winn v. Snider, 5S6. ■Winnipeg Land and Mortgage Corpor- ation v. Witcher, 490. Wlnspear v. Accident Ins. Co., 349. Winter v. Mixer. 168. Winterbottom v. Ingham, 217. Winterbottom v. Lord Derby, 355. Winterburn v. Edmonton Yukon and Pacific R. W. Co., 348. Wisner v. Coulthard, 389. Witham v. Kershaw, 219. Withy v. Cottle, 209. Wittrock v. Hallinam, 48G. Wolf v. McGuire, 220. Wolfe v. McArthur, 215. Wolfenden v. Wilson, 285, 530. Wolff v. The Merchants Ins. Co., 232. Wolmers Hansen v. Gullick, 248. Wood v. Boosey, 382. Wood v. Braddick, 44. Wood v. Brett. 252. Wood v. Canadian Pacific Ry. Co., 344 Wood v." Dixie, 410. Wood v. John Arbuthnot Co., 513. Wood v. Lang, 452. Wood v. Leadbitter, 453. Wood v. Mackinson, 137. Wood v. McAlpine, 522. Wood v. McPherson, 125. Wood v. Reesor, 404-409. Wood v. Waud, 372. Woodall, In re, 555. Woodberry v. Gates, 451. Woodcock v. Houldsworth, 80. Woodhill v. Sullivan, 61. Woodruff v. McLennan, 75, 397, 529. Wood-: v. Cobalt, 249. Woods v. Fraser, 84. Woodworth v. Dickie, 251. Woodward v. Buchanan, 6. Wool way •>• Rowe, :;r>. 38. World Printing and Publishing Co. y. Vancouver Printing and Pub. Co., 423. Worthington v. Peck, 250. Wray v. Morrison, 362. Wrayton v. Naylor, 213. Wright v. Anderton, 297. Wright v. Carter, 13. Wright v. Court, 447. Wright v. Collier, 40. Wright v. Morning Herald Co., 186. Wright v. Tatham, 36, 55, 104. Wright v. Ross, 254. Wright v. Wakefield. 81. Wyke v. Rogers. 252. Wyld v. Ormerod, 87. Wyld v. Pickford, 300. Wynne's Case, 81. Wythe v. Manufacturers, 240. Xenos v. Wickham, S5. Yangtsze Insurance Ass. v. Indemnity Marine Ass., 232. Yarwood v. Hart, 258. Yellowly v. Gower, 221. Yewing v. R., 167. Young v. Ashley Gardens Properties, Lim., 492. Young, Ex parte, 58. Young v. Fluke, 196. 197. Young v. Midland, 559. Young v. Milne, 240. Young v. Owen Sound Dredge Com- pany, 9, 354. Young v. Raincock, 46. Young v. Tucker, 374. Young v. Ward, 409. Young v. Wright, 45. Yrisarri v. Clement, 42. Yuill v. White, 572 /. Zilliaz v. Deane, 531. Zimmer v. Grand Trunk R. W. Co., 351, 353, 559. Zumstein v. Shrump, 325. Zurif v. Great Northern Telegraph Co., 398. Zwicker v. Zwicker, 31, 83. LAW OF EVIDENCE IN CIVIL CASES. PART I. RULES OF EVIDENCE AND PRACTICE AT TRIALS. CONTENTS OF PART I. Rules of Evidence. page. Blackstono's Summary 4 Object of Evidence — How attained q 1. Evidence confined to issue f> '_'. Substance of issue 7 3. Onus proband] 9 Kinds of Evidence. Primary Evidence 15 Judicial notice IT Secondary Evidence IT Oral evidence to explain, or add to documents 22 Presumptive evidence 2T Hearsay 33 Receipts 30 Expert testimony 39 Admissions 41 Estoppel 46 Proof and effect of Documentary Evidence 48 Alphabetical List of Subjects 50 Practice at Trials. A table of contents of the remainder of Part I. relating to practice at trials will bo found on page 10S et $eq. BLACKSTOXE S SUM M AUT. LAW OF EVIDENCE IN CIVIL CASES. The object of this work is to furnish a Treatise on the applica- tion in practice in civil cases of the rules of evidence. Part I. deals with the law and practice at (rials. Part II. contains the requisites for proof and defence in particular actions. Part III. includes matters of law available for purposes of defence as occasion requires. A quotation from Blackstone's concise and complete summary of the general subject furnishes an introduction to Part I. It is continued throughout Part I. as the subjects are reached to which it relates. Al- though in one sense law is universal, reference to Canadian decisions is more satisfactory as illustrative of our system of administration. Hence, decisions of the courts of all the Canadian Provinces are the basis of the text. PART I. RULES OF EVIDENCE AND PRACTICE AT TRIALS Blackstone's Summary of the Law of Evidence in Civil Cases. " And first, evidence signifies that which demonstrates, makes clear or ascertains the truth of the very fact or point in issue either on the one side or on the other, and no evidence ought to be admitted to any other point. Again, evidence in the trial by jury is of two kinds ; either that which is given in proof or that which the jury may re- ceive by their own private knowledge. The former, or proofs (to which in common speech the name of evidence is usually confined), are either written or parol, that is, by word of mouth. Written proofs or evidence are: I. itecords and, 2. Ancient deeds of thirty years' standing which prove themselves, but 3. Modern deeds and 4. Other writings must be attested and verified by parol evidtnce of witnesses. And the one general rule that runs through all the doctrine of trials is this, that the best evidence the nature of the case will admit of shall always be required if possible to be had, but if not possible then the lust evidence that can be had shall be allowed. For if it be found that there is any better evidence existing than is produced the very not producing it is a presumption that it would have de- tected some falsehood that at present is concealed. One witness (if credible) is sufficient evidence to a jury of any single fact, though BLAOKSTONE - £ DMMABY. undoubtedly the concurrence of two or more corroborates the proof. Yrt our law considers thai there are many transactions to which only one person is privy; and therefore does nol always demand the testimony of tw<>. Positive proof is always required where from the nature of the case it appears ii mighl possibly have been had. But next in positive proof circumstantial evidence or the doctrine of pre- sumptions musl take place; for when the fad itself cannol be demon- stratively evinced, thai which mines nearesl to the proof of the fact is thf proof of such circumstances which either necessarily or usually attend such facts, and these are called presumptions, which are only to be relied upon till the contrary be actually proved. Stabitwr praesumptioni donee proietur in contrarium. Violent presumption is many times equal to full proof; for there those circumstances appear which necessarily attend the fact. Probable presumption arising from such circumstances as usually attend the fact hath also its due weight. The oath administered to the witness is not only that what he deposes shall be true, but that he shall also depose the whole truth: so that he is nol to conceal any part of what he knows whether interrogated particularly to that point or not. And all this evidence is to be given in open Court in the presence of the parties, their attorneys, the counsel, and all by-standers. and before the Judge and jury: each party having liberty to except to its competency, which exceptions are publicly stated and by the Judge are openly and publicly allowed or disallowed in the face of the country, which must curb any secret bias or partiality that might arise in his own breast. As to such evidence as the jury may have in their own consciences by their private knowledge of facts, it was an ancient doctrine that this had as much right to sway their judgment as the written or parol evidence which is delivered in Court. And therefore it has been often held that though no proofs be produced on either side, yet the jury might bring in a verdict. For the oath of the jurors to find according to the evidence was construed to be to do it to the besl of their own knowledge. This seems to have arisen from the ancient ice in taking recognitions of assise. At the first introduction of that remedy the sheriff being bound to return such recognitors as knew the truth of the fact, and the recognitors when sworn being bound to retire immediately from the bar, and bring in their verdict according to their own personal knowledge, without hearing extrinsic evidence or receiving any direction from the Judge. And the same doctrine (when attaints came io be extended to trials by jury as well as to recognitions of assise) was also applied to the case of common jurors thai they mighl escape the heavy penalties of the attaint in Case they could show by any additional proof that their verdict was agreeable to the truth, though nol according to the evidence produced, with which additional proof the law presumed they were privately acquainted, though it did not appear in Court. But this doctrine OBJECT OF EVIDENCE — ISSUE. was again gradually exploded when attaints began to be disused and new trials introduced in their stead. For it is quite incompatible with the grounds upon which such new trials are every day awarded, viz.. that the verdict was given without or contrary to evidence. And tnerefore together with now trials the practice seems to have been first introduced which now universally obtains, that if a juror knows any- thing of the matter in issue he may be sworn as n witness and give his evidence publicly in Court." OBJECT OF EVIDENCE. The object of evidence is to prove the point in lssne between the parties; and in doing this there are three general rnles to be kept in view: 1. That the evidence be confined to the issne: 2. That the substance of the issne only need be proved: 3. That the burden of proof lies on the party asserting an affirmative fact if it be unsupported by any presumption of law. EVIDENCE CONFINED TO THE ISSUE. As the object of pleading is to reduce the matters in difference between the parties to distinct and simple issues, bo the rules of evidence require thai no proof, oral or docu- mentary, shall be received that is not referable to those issues. All evidence of matters which the Courts judicially notice, or of matters immaterial, superfluous or irrelevant, is therefore ex- cluded. In general, evidence of collateral facts not pertinent to the issue is not admissible. Thus, where the question was whether beer supplied by plaintiff to the defendant was good, the plaintiff was not allowed to give evidence of the quality of beer sup- plied by him to other persons: Holcombe V. II arson, 2 Camp. 391. But where a collateral fact is material to the proof of the issue joined between the parlies, evidence of such fact is admissible. Thus, in an action for work done and materials supplied to certain houses on the orders of a third person, the defendant denying that he is the owner of th" house or the real principal, evidence is admissible to show that other persons had received orders from the defendant to do work at the same houses, without showing that the plaintiff knew of these orders at the time he did the work: Woodward v. Buchanan, ju. R. 5 Q. B. 285. The plaintiff rented to the defendant a field for th-> purpose of growing flax at an agreed rental of $10 an acre. In answer to the claim for rent the defendant attempted to shew that he had sustained damage by reason of the ground being full of thistles, and that it had been stipulated that an allowance was to be made in such case for the loss to the defendant: — Held, that evidence was SUBS'! am l. < ! 7 properly admitted f<>r 1 1 1 « - guidance of the jury in adjusting such allowance as to how the defendant had himself settled with other persons* who had thistles in their fields rented by him: Weinhold v. Klein, 10 A. R. 1'it. in an action to recover the value of buildings destroyed by fire started, as was alleged, by sparks which escaped from the defective smokestack of a steamboat, evidence thai on prior and iuenl 7. In order to prove that the acceptor of a hill knew the payee to be a fictitious person, or that the drawer had a general authority from him to fill up hills with the name of a fictitious payee, evidence may be adduced that he had accepted other similar bills under circumstances that indicated such knowledge or authority: Gibson v. Hunter, 2 II. P.l. 2SS. In ircneral in actions unconnected with character, evidence as to the character of ,,f c lt K ir«.c- either of the parties to a suit is inadmissible, being foreign to the ter. point in issue, and only calculated to create prejudice. For the same reason where particular acts of misconduct are imputed to a party, evidence of jreneral character is excluded: but it is otherwise where genera] character is put in issue: Farr v. Hicks, 4 Esp. 51. When collateral issues arise out of comparison of handwriting and evidence in relation to them becomes admissible at a stage of the cause when it would otherwise he excluded, such evidence should be treated as appli- cable to the case generally when it properly applies to it : Royal Canadian Bank v. Brown, 27 U. C. R. 41. Where the materiality of certain enquiries is obvious, and is assumed at the trial, e.g., with i t.> tie- temperate habits or otherwise of the deceased, there is no need to submit it to the jury: Russell v. Canadian Life Assur- ance Co.. 32 1'. ('. c. v. 256, 8 A. R. 716. Tin: SUBSTANCE OF THE ISSUE NEED A-LONE BE PROVED. It was always the common law rule that the substance of the issue joined between the parties need alone be proved. A party must recover secundum alhgata et probata, and cannot succeed upon a proof that differs from his allegation; if his proof so differ it is called a variance Now. however, either party may at any time be allowed to amend their pleadings, "and all such amendments shall be made as are necessary for tin- advancement of justice, determining 8 SUBSTANCE OF ISSUE. the real matter in dispute between the parties, and next calculated to secure the giving of judgmenl according to the very right and jus- tice of the case." (C. It. 312). Since this rule parties must not go to trial on the mere hope that a variance will be fatal. They ought to anticipate that all amendments will be allowed which are necessary to determine the real question in controversy which both parties must have had in contemplation when the suit commenced. Amend- Although a proper amendment cannot be refused at the trial. merit, prm- NV ' m , n circumstances during its progress unexpectedly manifest a ciples on which tobe necessity for such an amendment, principle and convenience alike allowed. demand that such a motion should not be entertained in any case during the trial where by observing due diligence leave to amend might have been obtained at an antecedent period: The Bank of Nova IScotia v. Chipman, 2 N. S. 1>. 438 (X.S.). The answer of the com- pany relied upon the premises being vacant without notice to them. At the hearing this proved to be incorrect, when an application was made to supplement their answer by relying on a change in the occupation and an increase in the number of tenants ; but as it was not shewn that the change in occupation had increased the risk, or that the loss was occasioned by it, the Court in the exercise of the discretion given to it under the A. J. Act refused to allow the amend- ment : Guggisoerg v. Waterloo Mutual Fire Insurance Co., 24 Chy. 350. All amendments ought to be made that are necessary and proper, for the object of the rules is to meet cases in which by mis- take or oversight the real matter in issue is not raised by the plead- ings: and under it the matter may be put on the record which was not on it before if it be shown to the satisfaction of the Judge to be tne existing matter in controversy. What that matter in controversy may be is a matter of fact to be determined by the Judge upon the evidence and pleadings before him: Blalce v. Done, 7 H. & N. 4(55. Ii seems that leave to amend should always be given unless the Judge is satisfied that the party applying is acting mala fide, or that by liis blunder he had done some injury to his opponent which cannot he compensated for by costs or otherwise: Tildeslcy v. Harper, 10 Ch. I). 397. An amendment should not be allowed for the purpose of trying a question which has arisen at the trial, but is not that h the parties came to try: Ellis v. Manchester Carriage Co., 2 C. P. D. 13. Where the amendment would evade the real question in controversy it should he refused. Thus, where the plaintiff claims a larger easement than he proved at the trial, the Judge would not allo.v him to limit it by amendment, if in fact the larger claim was the one really claimed and asserted by plaintiff and resisted by de- fendant: Cawkwell v. Russell, 26 L. J. Ex. 34. It seems that the time to apply for an amendment by either party is at the close of his case. See Rainy v. Bravo, L. R. 4 P. C. 287-298. The Courts ONI B PBOBANDI. » are very unwilling to disturb decisions of Judges made in the exercise of discretion vested in them: Morgan v. Pike, 14 0. 1'.. IT:'., and a new trial will in. I he directed upon the ground of surprise occasioned by an amendment at nisi prills unless substantial injustice has been done: White v. 8. E. R. Co.. 10 W. R. 564. The plaintiffs are not entitled to recover in this action: but the facts are all before us, and would warrant the granting of relief to the plaintiffs upon an a men. lment of their pleadings, and we proceed to treat the case as if the amendment had been made: Rogers v. Dnitt. 25 O. It. at p. 90. ONUS PRORANDT. Generally he who asserts a fact is bound to prove it if there be no presumption in favour of it; and the negative need not ordinarily he proved: Ross v. Hunter. 4 T. R. 33. It must, however, be borne in mind that regard must be had to the effect and substance of the issue and not to its grammatical form: Soward v. Leggatt, 7 C. & P. 613. And where the assertion of the negative is part of the plaintiff's case, he must prove it, as. the want of reasonable and probable cause in an action for malicious prosecu- tion : Alrath v. N. /.'. R. Company. 11 Q. P.. D. 440. Where the presumption is in favour of the affirmative, as where the issue in- volves a charge of a culpable omission, it is incumbent on the party making the charge to prove it : for the other party shall be presumed innocent until proved to be guilty. Thus, in an action by the owner of a ship for putting combustibles on board "without giving due notice thereof," it was held that the plaintiff was bound to prove the want of notice, as the omission to give such notice would have amounted to criminal negligence on the part of the defendant: Williams v. E. I. Company, 3 East 193. In actions for negligence Negligence it lies on the plaintiff to prove it, and not on the defendant to show reasonable care: Harsh v. Home. 5 P.. & C. 327. In an action to . for negligence tried with a jury, where contributory negligence is set up as a defence, the onus of proof of the two issues is respectively upon the plaintiff and the defendant: and although the Judge may rule negatively that there is no evidence to go to the jury on either issue, he cannot declare affirmatively that either is proved. The question <>f proof is for the jury. TTYi'r v. Canadian Pacific I'. W. Co.. 1fi A. R. 100. was a non-jury case, and laid down no rule for the disposition of a case tried with a jury: Morrow v. Canadian Pacific /.'. W. Co., 21 A. R. 149. In an action to recover damages for death caused by alleged nedigence, the onus is on the plaintiff to prove not only that the defendant was guilty of actionable negligence, but also either directly or by reasonable inference that such negligence was the cause of the death: Young v. Owen Sound Dredge Company. 10 ONUS PROBANDI. L!7 A. R. 049. The plaintiff's husband was accidentally killed whilst employed as engineer in charge of defendants' engine and machinery. In an action by the widow for damages, the evidence was altogether circumstantial, and left the manner in which the accident occurred a matter to be inferred from the circumstances proved : — Held, that in order to maintain the action it was necessary to prove by direct evidence or by weighty, concise and consistent presumptions arising from the facts proved, that the accident was actually caused by the positive fault, imprudence or neglect of the person sought to be charged with responsibility, and such proof being entirely wanting, the action must be dismissed : Montreal Rolling Mills Co. v. Corcoran, 26 S. C. R. 595. The burden of proving that an accident arose out of and in the course of the workman's employment lies on the plaintiff ; but the burden of proving serious and wilful misconduct lies on the defendant: McNicholas v. Dawson, 68 L. J. Q. B. 470: (1899) 1 Q. B. 773 ; 8 O. L. T. 817 : 47 W. R. 500. The presumption was that the deceased had been injured by accident arising out of and in the course of his employment and that in the absence of evidence to the contrary this must be taken to be the fact : Grant v. Glasgow and South-Western Railway. (1908) S. C. 187. The presence of the stone in the bun was prima facie evidence of negligence, and threw on the defendant the onus of rebutting it: Chaproniere v. Mason, 21 T. L. R. 633. It has been stated to be a rule that where the affirmative is peculiarly within the knowledge of the party charged, the presump- tion of law in favour of innocence is not allowed to operate, but the general rule applies, viz.: — that he who asserts the affirmative is to prove it, and not he who avers the negative. Thus, it has been said that in an action on a covenant for not insuring premises against fire, it lies on the defendant to prove that he is insured: Bridget v. Whitehead, 8 Ad. & E. 576. In actions for the recovery of possession of land upon the ground of forfeiture, it always rests on the lessor, the plaintiff, to show that the estate which he has crranted has been forfeited by the tenant: Toleman v. Portbury, L. R. 5 Q. B. 288, Ex. Ch. In an action brought upon a policy of in- surance defendants pleaded the non-fulfilment of the twelfth condi- tion of the policy, which required the certificate of the nearest magis- trate of the cause of the fire, upon which the plaintiff took Issue: — Held, that the proof of the plea rested upon defendants, and the plaintiff having given prima facie proof of the fulfilment of the con- dition was entitled to the verdict : Piatt v. Gore District Mutual Ftre Ins. Co., 9 U. C. O. P. 405. Under the Ontario Judicature A-t the performance of conditions precedent to a right of action must still be alleged and proved by the plaintiff: Home Life Association v. Randall, 30 S. C. R. 97. In an action on a bond against the sure- ties of the defaulting clerk of the municipality of Shelburne, the ONUS PBOBANDI. ] 1 e raised was thai the l»>nd was not executed by them as it had no seals attached when the sureties signed it: — Held, that the plain- nfl's bad proved a prima facie case of a bond properly executed on its face, and as the defendant had not negatived the due execution of the bond, it being consistent with his evidence that it was duly executed, the onus of proving want of execution was not thrown off the defendant; and as neither the subscribing witness nor the prin- cipal obligor was called at the trial to corroborate the evidence of the defendant, plaintiffs were entitled to recover: Marshall v. Muni- cipality of Shelburnc, 14 S. C. R. 737. In a suit to enforce performance of an agreement by the defend- ant to maintain the plaintiffs, husband and wife, in consideration of a conveyance of land by them to the defendant, the onus of proving a breach of the agreement is upon the plaintiffs : Ouilette V. LeBel, 26 C. L. T. 4(JG, 3 N. B. Eq. 205. The relations of a nusband and wife are not one to wBich the Voluntary doctrine of Hvguenin v. Baseley (14 Ves. 273; 1 Wh. & Tu. L. C. <£££*' (7th ed.) p. 247) applies. There is no presumption that a voluntary deed executed by a wife in favour of her husband, and prepared by the husband's solicitor, is invalid. The onus of proof lies on the party who impugns, not on the party who upholds the instrument : Barron v. Willis. 68 L. .1. Ch. 604; (1892) 2 Ch. 578; 81 L. T. 321; 48 W. R. 26. A deed having been executed by a husband and wife under such circumstances as to make the conveyance voluntary, the < krart held that the onus was on the grantee of proving that the grantors understood the nature and effect of the deed ; and as it did not appear to have been explained before bein? executed the deed was held invalid: Frascr v. Rodney, 11 Chy. 42G : 12 Chy. 154. Where a wife claimed as agent against her husband's creditors certain chattels as a gift from him while they were living together: — Held, that the onus of proof of right to the goods was on her, and, there being no writing or witnesses, her own evidence, although corroborated by her husband, was not sufficient to satisfy the onus: Thompson v. Doyle, 16 C. L. T. Occ. N. 286. It is essential to the validity of a deed of gift in favour of a person occupying towards the grantor a relation of trust and confidence (in this case a brother in favour Trust and of his brothers), that the grantee should shew that the grantor had competent and independent advice in the transaction: Daw- son v. Datcson, 12 Chy. 278. Where a father made a deed of gift of all his property to his son, and there was no evidence of undue influence on the part of the son, or of his having taken an unconscientious advantage of his father; and the Court was satisfied tnat the deed had been duly executed, the son was not required to prove that the father in making the deed was aware of its nature and consequences, and the deed was upheld : Armstrong v. Armstrong, 14 Chy. 528. Where there is testimony on both sides of a case. 12 ONUS PItOBANDI. the decision is to be governed by the weight of evidence and not by the legal doctrine about burden of proof: Andrews v. Landers, 4 R. & 6. 236 (N. S.). In an action for the annulment of a will alleged to have been procured at a time when the testator was not capable of making it, the onus of proving capacity lies upon the party procur- ing its execution: Curric v. Currie, 24 S. C. R. 712. Onus of prov- ing property as stated in the pleas is on the defendant, and he is bound to be.uin : Graham v. Wetmore, 4 All. 373 (N. B.). Defend- ants in an action for wrongful dismissal sought to justify the dis- missal on the ground that plaintiff was incapable of doing the work he had contracted to perform : — Held, that the burden of proving incapacity was on defendants : Jeykel v. Nova Scotia Glass Co., 20 fc. S. R. (8 R. & G.) od8; (N. S.) 9 C. L. T. 60. The fact of bank shares being purchased in trust at a time when the trustee was in- solvent imports an interest in somebody else, and the onus is upon a party who has seized such shares to prove that they are in fact the property of the trustee, and as such available to satisfy the de- mand of his creditor: Sweeny v. Bank of Montreal (12 App. Cas. 617; 12 S. C. R. 661), followed: Holmes v. Carter, 16 S. C. R. 473. xn an action of slander against a public officer in respect of the com- munication of his decision on the case of a subordinate whom he accused of criminal acts, the onus is upon the plaintiff to shew that the slanderous statement was actuated by motives of personal spite and ill-will in order to sustain a verdict for malicious slander. See 3 Pugs. 670 ; 18 N. B. Rep. 6 ; 19 N. B. Rep. 225 : Dewe v. Wafer- Contract bury. 6 S. C. ii. 143. Whether a memorandum in writing set up by in writing, the defendant was or was not intended to settle a contract in whole or in part is a question for the jury, and the onus to shew that it settled the whole contract being upon the defendant, and oral testi- mony admissible on behalf of both parties, a verdict based on the appreciation of the credulity of the respective witnesses ought not to be interfered with: Peters v. Hamilton, Cass. Dig. (2nd ed.), 763. in an action against charterers of a vessel for non-delivery of goods shipped under a bill of lading, if the defendant claims that the dam- ages should be reduced by a claim for general average, the burthen is on him to establish the liability and shew the amount: Burpee V. Varville, Pugs. 141 (N. P..). See Thompson v. Didion, 10 Man. Rep. 240; referring to Barber v. Furlong (1891), 3 Ch. 184. Solicitor In dialing with a case of a gift by a client to his solicitor the and client. Court starts with a presumption of undue influence on the part of the donee continuing so long as the relation of the solicitor and client, or the influence attributable thereto, continues. The pre- sumption is not irrebutable, but the onus is on the solicitor of shew- in? the gift was uninfluenced by his position of solicitor. The fact that the donor had the competent independent advice of a different solicitor is material as tending to shew that the influence had ceased. ONUS PROBANDI. 13 Rut the new BOlicitor called in must not only satisfy himself thai the donor knew what he was doing and did it of his own will; he must also inform himself of the donor's financial position, and the circnm- Btancea under which the transaction was taking place, and satisfy himself that the gift was proper for the donor to make under all the circumstances of the case; otherwise he will not be in a posi- tion to give competent independent advice. In a transaction of sale from a client to his solicitor the onus is on the solicitor to shew that the client knew what he was doing, that he was properly ad- vised, nnd that a fair price was given: Wright v. Carter, 72 L. J. Oh. 138: (1903) 1 Ch. 27; 87 L. T. 024; HI \V. R. 196. Action to set aside a conveyance obtained from an old woman, who was deaf and unable to write and who had no relatives or friends, by the reeve of the township in which she lived, and who was well known as a jus- tice of the peace and an active, shrewd business man. engaged in many enterprises: the plaintiff was examined, and after giving evi- dence of the above facts, part of the defendant's depositions in the suit were put in. in which he admitted that she placed a good deal of confidence in him ; she, however, having sworn in her evidence that she never placed any dependence on him, the plaintiff's case was closed, and it was contended that the onus was now on the de- fendant to shew that the transaction was a righteous one; the de- fendant oeclined to call any witnesses, and plaintiff's action was dismissed : — Held, that the onus was not on the defendant, and that the plaintiff must prove her case. Semble, the mere existence of confidence is not enough ; influence must be proved, and is not to I>e presumed from the existence of confidence : Wallis v. A ndre us. If, Chy. 024, followed; McEwan v. Milne, 5 O. R. 100. If a per- son executes a transfer with a mind and intention to execute it, though his assent may have been obtained by fraud he is estopped from denying its validity as against subsequent purchasers, bona fide Subse- for value and without notice; lun when fraud has been established, ^"f" J* 01 ' the onus is upon such subsequent purchaser to establish that the transfer to him was bona fide and the Court in determining whether such defence is established will take into consideration all the f and draw inferences therefrom as to whether or not the transaction was in fact bona fide: Siranson v. Getsman. 8 W. I.. B. "('.2 ; Mo- Innis v. Getsman, 1 Sask. L. R. 172. In proceeding to impeach a conveyance executed in pursuance of a power of sale in a mortgage, t ne purchaser, or those claiming under him. must shew a due exer- cise of tlie jiower of sale; the onus of impeaching it is nol upon rim party alleging the invalidity of the deed: Bartlett v. -full. -S. Chy. I4(i. Where a hill is tiled by a private individual to repeal Le patent on the ground of error, the onus of proof is on the plaintiff. tnough it may to some extent involve proof of a negative: Mclntyre v. Attorney-General. 14 tuy. 8t>. It is not incumbent upon a paten- 14 ONUS PROBANDI. Patent of invention. Highway. Collision. Foreign judgment. Covenant for title. Infancy. tee to shew that he has made active efforts to create a market for his patented invention in Canada. It rests upon those who seek to defeat the patent to shew that he neglected or refused to sell the in- vention for a reasonable price when proper application was made to him therefor: Barter v. Smith, 2 Ex. C. R. 455. Where in an action for infringement of a patent for invention the validity of the patent is attacked upon the ground that the invention is not patentable, the onus of proving that it is is upon the patentee : Lair V. Authier, Q. R. 31 S. C. 112. In an action by a municipal corpora- tion to restrain the owner of the land from obstructing an alleged public highway over his land, the onus of proving the existence of such highway rests on the plaintiffs : St. Vincent v. Greenfield, 15 A. R. 567. Where a collision occurs between a moving vessel and one lying at anchor, the burthen of the proof is upon the moving vessel to shew that such collision was not attributable to her negli- gence : The Annot Lyle, 11 P. D. 114, referred to ; Ward v. The Ship ' Xosemitc," 4 Ex. C. R. 241. In an action on a foreign judgment, u the judgment is not impeached or denied, it is prima, facie evidence against the defendant. A n an action on a judgment obtained by plain- tiff against defendant in the United States defendant pleaded : 1. That the judgment had been recovered for money alleged to have been paid by plaintiff for the use of the defendant, and that he was never indebted as alleged. 2. Payment before judgment : — Held, that the onus probandi was upon defendant, who ought to have begun, and that he having refused to do so a verdict was properly entered for the plaintiff: Manning v. Thompson, 17 U. C. C. P. 006. In an action on a covenant for title where defendant pleads that he was seized in the terms of the covenant, the onus of proof lies upon him, and the plaintiff need not first prove a breach to entitle himself to a verdict : Lemesurier v. Willard, 3 U. C. R. 285. Upon an action on covenant for title of an assignee of the covenantee, it is not essential that ho should shew that a legal interest passed to him under the deed ; his cause of action is that he has not the interest he supposed he was acquiring which he would have had if the title of the coven- antor who executed the first deed had been good : Gamble v. Rees, 6 U. C. R. 396. In a suit to set aside a voluntary conveyance as void against creditors, it lies upon the parties interested in supporting the ueed to shew the existence of other property of the debtor available to his creditors : Brown v. Davidson, 9 Chy. 439. Where an action is brought for the price of goods sold and de- livered and the defendant pleads and proves infancy, the onus is on the plaintiff to prove that the goods were necessaries within the meaning of that term as defined in section 2 of the Sale of Goods Act, 1893, that is to say, that the goods were suitable not only to condition in life of infant but also to the actual requirements at the time of the sale and delivery: Nash v. Jnman, 77 'L. J. K. B. 626; PRIMABY EVIDENCE. 15 i 1908), 2 K. B. 1 ; OS L. T. 658; 24 T. L. R. 401— C. A. The onus of proving that the signature on a bill is genuine lies on the holder oi the bill : British Linen Co. v. Coivan, 8 F. 704. Where goods are given into the sole custody of a person and accepted by him as bailee, and they are lost while in his custody, the onus lies upon him to shew circumstances negativing negligence on his part : I'hipps v. New Claridge's Hotel, Lim., 22 T. L. R. 40. Those who rely on a plea of compulsory pilotage must establish the fact that the fault of the pilot was the fault of the pilot alone, otherwise the Court will not act in finding that the fault was that of the pilot : The Velas- quez (36 L. .1. Adm. L9; L. R. 1 P. C. 404) approved: The Benmohr, 52 W. R. 686. In the absence of notice brought home to the cus- Carrier*, tomer, that their liability was limited to a certain sum, the defend- ants had failed to discharge the onus which lay upon them to shew that the plaintiff at the time when he made his contract with the defendants, had received notice that their liability was limited, or that the stipulation limiting their liability had been at any time accepted by him as a term of his contract: Harris V. Great Western R. W. Co. (1876), 1 Q. B. D. 515; Henderson v. Stevenson (1875), L. R. 2 H. L. Sc. 470, and other cases bearing on the liability of carriers : l.amont v. Canadian Transfer Co. (1000). 13 O. W. K. 1181; 10 O. i.. R. 201. It is not necessary for the defendant to explain the cause of the fire. The burden is on the plaintiffs of showing that it was caused by the defendant: Clarke v. Ward, 13 W. L. R. S3. Fraudulent Conveyance — Onus of Proof under R. S. O.. c. 124 : Lawson v. McGeoch, 20 A. R. 464. Where a man of sufficient age for business capacity knowingly Restraint enters into a contract of service which is only in partial restraint °* trade, of trade the onus lies on him to prove that it goes beyond what was reasonably necessary: Hayncs v. Doman (1899), 2 Ch. 13. PRIMARY EVIDENCE. It is a general rule that the best evidence, or rather the highest kind of evidence, must be given of which the nature of the case admits, and evidence of a nature which sup- poses better proof to be withheld in only secondary evidence. Thus in general where a contract has been reduced into writing by the parties, the writing is the best evidence of its contents and must be produced: Fcnn v. Griffith, t"> Bing. 533. It is not universally neces- sary where the matter to be proved has been committed to writing, tnat the writing should be produced. If, for instance, the narrative of »n extrinsic fact has been committed to writing, the fact may yet be proved by oral evidence. Thus, a receipt for money will not exclude oral evidence of the payment : Rambcrt v. Cohen, 4 Esp. 213. In the 16 PRIMARY EVIDENCE. same manner what a party says in admitting a debt is evidence, although the promise to pay is reduced into wrTling : Singleton V. Barrett, 2 C. & J. 369. The parties to a lease, amount of rent, and tne terms of the tenancy can only be shewn by the writing : Strother V. Barr, 5 Bing. 130. Although there exists the deed of partnership, yet the fact of partnership may be proved by the acts of the parties : Alderaon v. Clay, 1 Stark, 405. Where it is necessary to prove a marriage, the entry in the parish register is not the only evidence ; but the fact may be proved by the testimony of persons who were present and witnessed the ceremony, or by general reputation : Lampbell v. Campbell, L. R. 1 H. L. Sc. 201. The admission of one of the parties to a suit is primary evidence as against him, and oral admissions are evidence against the party making them although they relate to the contents of a written document : Slatterie v. Pooley, 6 M. & W. 604. The counterpart of a deed is admissible as original or primary evidence against the party executing it and those claiming under him, though no notice to produce the other part has Duplicate oten given : Burleigh v. Stibbs, 5 T. R. 405. So a duplicate original original. may be adduced in evidence without notice to produce the other original : Colling v. Treween, B. & C. 394. In the case of printed matter each copy of the same impression is an original : R. v. Watson, 2 Stark. 129. A mere unaccepted proposal, executory memorandum, private minute or unauthorized entry of one of the parties will not exclude oral proof. But where an oral contract expressly incor- porates or refers to a written paper as part of its terms, that paper ought to be produced, in order to prove those terms. In order to render the production of a writing necessary it must appear to relate to the matter in question: Hill v. Nuttall, 17 C. B. N. S. 202. If, in Kixtras. an ac ^ on f or wor k an( j labour it appears that the claim is for extras on a written contract the written contract must be produced : Buxton V. Cornish, 12 M. & W. 420. But if an entirely separate order be given for the extras, then production of the written contract is not Exclusion necessary: Reid v. Batte, M. & M. 413. If oral evidence of an agree- of oral ment is given at the trial the party desirous of excluding it may at of agree- once interpose and ask the witness whether it was not in writing ; ment. iL the witness deny this, he may then give evidence on collateral issue to shew that the agreement was in writing : Cox v. Couveless, 2 F. & r. 139; or he may reserve the question for cross-examination, and may enquire as to the contents of the writing so far as may be neces- sary to shew that oral evidence is admissible : Curtis v. Created, 1 A'!. & E3. TIT. It is not enough to prove by a witness that the soli- citor of the opposite party has admitted in conversation that there was a written agreement on the subject; for a solicitor is not ao of his client to make such admissions: Watson v. King, 3 C. B. 608. Evidence was properly admitted as tending to shew that the defendant's mode of carrying on his business was dangerous: JUDICIAL NTOTII E. 17 Holes v. Kerr, 77 L. J. K. B. S70 ; (1908). 2 K. B. 601; 99 L. T. 364 ; 24 T. L. R. 779. J Line I \L NOTICE. It is no Longer accessary to tender evidence as to the negoti- ability of bearer bonds foreign or English. The existence of the Osage has been so often proved that it must now be taken to be part of the law of which the Courts ought to take judicial notice: Bechu- analond Exploration Co. v. London Trading Bank, 67 L. J. Q. B. 986; (189S), 2 Q. B. C58, approved of and followed: EdeUtem v. Bchuler, 71 L. .1. K. B. 572; (1902), 2 K. B. 144; 87 L. T. 204; "■it W. R. 493: 7 Com. Cas. 172 :— Held, that a magistrate cannot take judicial notice of orders-in-council or their publication, without proof thereof by production of the Official Gazette ; and, therefore, that a conviction was bad which was made without evidence that the Canadian Temperance Act, 1878, was in force in the county pur- suant to the terms of B. 96 thereof: Regina v. Bennett, 1 O. R. 445, 3 O. R. 45. A Judge is bound to take notice of the territorial divi- sions of the Province : McDonald v. Dicaire, 1 Ch. Ch. 34. The Court will take judicial notice of the territorial divisions of the Province: Eastern Judicial District v. Winnipeg, 3 M. L. R. 537 (Man.). While the courts will take judicial notice of territorial and geographical divisions, they will not so notice the precise extent or limits of the various counties and divisions: nor whether particular places are or are not situated therein. Rex v. Oberlandcr, 13 W. L. R. 648. SECONDARY EVIDENCE.. Secondary evidence is admitted in cases where the prin- ciple which excludes it, namely, the supposed existence of better evidence behind, which it is in the power of the party to produce, does not apply. Thus, it is admissible if a ground be laid for it by proving that better evidence cannot be ob- tained: Rainy v. Bravo, L. R. 4 P. C. 287. In cases of a lost deed the loss or destruction must be proved: and if it appears that two Or more parts have been executed, the hiss of all the parts should it is said be proved ; otherwise. " perhaps," a copy will not be admitted : Munn v. Godbolt, '■', Bing. •_ ,, .c_'. So when an instrument is in the possession of the opposite party, oral evidence of its contents may be given on proof of the service of a notice to produce it. All the proper sources trom which the primary evidence can be procured must be exhausted before secondarv evidence can be admitted. Thus a IS S E( 'ONDAEY EV1DEX ( E. Refusal to produce. Deceased witness. Diligent search required. party who litis the legal custody of an instrument must be applied to : R. v. Stoke Golding, 1 B. & A. 173. The construction of a lost document though proved by oral evidence is for the Judge, where the veracity of the witness as to its contents is not questioned: Berwick v. Horsfall, 4 (J. B. N. S. 450. The wrongful refusal of a third party to produce a document in nis possession on subpoena duces will not let in oral evidence of it: K. v. Llanfacthly, 2 E. & B. 940. But where a document is in the hands of a party as a solicitor, who is called to produce it, but declined to do so, relying upon his privilege or upon his lien, secondary evidence of its contents may be given: Gilbert v. Ross, 7 M. & W. 102. The secondary evidence cannot be received unless the solicitor has been duly served with a subpoena duces: ilubbcrd v. Knight, 2 Exch. ll ; or has the document in Court and refuses on demand to produce it. In some cases secondary evi- (1 nee of oral testimony is admitted, as where the testimony of a witness on a former trial is admitted on another trial without pro- ducing him in person. Wnat a witness since dead has sworn on the trial between the same parties may be proved, either from the Judge's notes or from notes that have been taken by any other person who will swear to their accuracy; or it may be proved by any person who can swear from memory: Strutt v. Bovingdon, 5 Esp. 56. The witness must be prepared to prove the words of the former witness and not merely the supposed substance or effect of them: R. v. ■folliffc, 4 T. R. 285. Where secondary evidence is offered in conse- quence of the loss of the primary evidence, it must be shewn to the satisfaction of the Judge that diligent search has been made in those quarters in which the primary evidence was likely to be procured. Where the loss or destruction of the paper is probable, very slight evidence of its loss or destruction will be required, and a useless paper will be presumed to be destroyed: R. v. E. Farleigh, 6 D. & Ry. 153. A party who relies upon a title deed which he asserts to have existed, but which he cannot find, may establish the existence, tin' tenor, and the destruction of it as well by oral evidence as by presumptions grave, precise, and sequential: Bienvenu v. Lacaillc, Q. R. 17 K. B. 404. Where a party to an action has had an opportunity of inspecting and taking copies of documents belonging to his opponent and privi- leged from production, he can, notwithstanding the privilege, give I'iary evidence of the contents of such documents: Lloyd V. Mostyn, ]2 I,. J. Ex. 1 ; 10 M. & W. 478, followed: Calcraft v. Quest, 67 L. J. Q. B. 505; (1898), 1 Q. B. 759; 78 L. T. 283; 4C, W. R. 420. The degree of diligence to be used in searching for a deed must depend on the importance of the deed and the particular circum- stances of the case : Gully V. Bp. of Exeter, 4 Bing. 298. If not found I 0PIE8. 19 in iis proper place of deposit further search may generally be dis- pensed with; as where it was the duty of the party in possession of the document to deposit it in a particular place, and ii is uot found in that place the presumption is that it is lost or destroyed. If there are several places of probable deposit all should be searched. Where B Conveyance Of freehold and leasehold iii trust was alleged to be lost, aud one of the trustees and the heir of another trustee deceased negatived possession of it, it was held insufficient unless the executor of the deceased trustee who had taken posses- sion of his papers was also questioned: Richards v. Lewis, 11 C. B. 1035. The objection that secondary evidence of a document is offered without proof of due search for the original must be distinctly made at the trial; otherwise the Court will not entertain it on a motion for a new trial: Williams v. Wilcox. 8 Ad. & E. P>14. There are no degrees of secondary evidence; or in other words, if the produc- tion of the original document is dispensed with, its contents may be proved by the same evidence as any other fact is capable of being proved: and no other restriction is laid upon the party producing the evidence as to the kind of evidence which he shall produce for this purpose except that which arises from the risk of having it treated as unsatisfactory by the jury. This is what a jury would very probably do and might possibly by a Judge be advised to do, if it was patent that more satisfactory evidence was available to the party than that which he thought fit to produce; Gilbert v. Ross, 7 M. & W. 402. The only exception is where, as in the case of public documents, a special kind of secondary evidence is substituted for the original. Even in this case if good reason can be shewn why neither the original evidence nor the substituted evidence can be produced, secondary evidence of the ordinary kind will be admissible; lAacdougal v. Young, Ky. & M. ."592. It is a general custom, especially of persons in business, to get Copies, copies of all the more important documents relating to the matters in which they are engaged; and there is no doubt that a well authen- ticated copy is by far the most satisfactory substitute for the original documents. No copy is admissible in evidence nnless its accuracy be ■worn to, or there be some presumption attached to it from which its accuracy may be inferred: Fisher v. Samuda, 1 Camp. 190. It is not necessary to (all the very person who wrote the copy. Any person who can testify on oath to the accuracy of it is sufficient : Everingham v. Roundell, 2 M. & Rob. 138. A copy of a letter taken by a copying machine, though still only a copy, will be presumed to be a correct copy: Simpson v. Thornton. 2 M. & Rob. 433; and may be used as an admission : Nathan v. Jacob, 1 F. & F. 4."2. An entry by the plaintiff's deceased clerk in a letter hook, purporting to bo a 20 ■ SEARCH FOR DOCUMENTS. copy of a letter from the plaintiff to the defendant, is presumed to be correct, proof being given that according to the course of business, letters of business written oy the plaintiff were copied by this clerk: Hagedom v. Reid, 3 Camp. 377. A letter written by defendant to plaintiff stating that he was still willing to settle amicably, but that if the plaintiff refused to meet him in the same spirit he would push the matter to the utmost: — Held, not provable by secondary evidence without a notice to produce: Hood v. Cronkite, 29 U. O. R. 98. Held, per "Wilkins, J., that where one of the originals of an agreement be- tween defendants L. and F. had been in the possession of L., and no evidence was given of a search by L., or by L.'s executors or among papers of deceased for it, secondary evidence of the agreement had been improperly received : Johnson et al. v. Lithgow et al., 2 R. & C. 567 (N. S.). After secondary evidence of a document has been re- ceived it is too late to object to the sufficiency of the search : Maclem v. Turnbull, 5 U. C. R. 129. Secondary evidence of the deed having been admitted, the Court after verdict refused to interfere : Tiffany v. '/' -('umber, 13 U. C. R. 159. Before secondary evidence can be let in proof must be adduced that such deed once existed, and that it had been destroyed or lost and diligent search made therefor : Ansley v. Bero, 14 U. C. C. P. 371. A memorandum or entry in a book in the office of the sheriff in the handwriting of the deputy-sheriff, purport- ing to be an entry of the receipt of a certain writ by the sheriff, ad- mitted in evidence subject to objection, the sheriff and the then deputy- sheriff being dead, and the existing deputy-sheriff having proved the handwriting and the place from which the book was produced : Ward- rope v. Canadian Pacific R. W. Co., 7 O. R. 321. Where the papers belonging to the District Court and to the sheriff had been burned, and the records themselves thus destroyed: — Held, in ejectment, that the defendant claiming under n sheriff's deed might prove the judg- ment and executions by secondary evidence contained in the sheriff's books, and in a fee book of the Court, and by the attorney who ob- tained the judgment, whose papers had also been burned, and by the plaintiff; and that he was not bound to obtain exemplifications: Heany v. Parker, 27 U. C. R. 509. Where a deed has been traced into the actual possession of a party, it is necessary to call him to account for it, before secondary evidence can be let in; but where doubt exists as to whether it was actually left with a party who had no interest in it : Held, sufficient to prove a search amongst the papers of the per- son who it was presumed had last had possession of it: Barto v. Morris, Cochran, 90 (N. S.1. Slight evidence of a search for a note which lias been paid and taken up by the maker is sufficient to account for its non-production and to admit secondary evidence: Lyman v. Cam, 3 All. 259 (N. B.). The sufficiency of preliminary proof of the loss of any document to entitle secondary evidence to be received is a question for the Judge at the trial to determine: ORAL EVIDENCE TO EXPLAIN DOCUMENTS. 21 Gilbert v. Campbell, 1 Han. 474 (N. B.). Where au objection to secondary evidence of a deed is either not taken or is waived at the trial, it cannol be taken afterwards; and in Bach case the regularity of notices to produce and matters of the like kind is always pre- sumed: Smith et ul. v. Smith et al, 2 Old. 303 (N. S.). A document not in existence written by a particular individual may be proved by a person who lias had possession of and destroyed it, though he only acquired knowledge of the handwriting of the alleged writer some weeks after the document was destroyed, and could only say that from his recollection of the document it was written by the same person: Alexander v. Wye, 14 S. C. K. 501. On the hearing of an equity suit secondary evidence of a documenl was tendered on proof that its proper custodian was out of the jurisdiction and supposed to be in Scotland ; that a letter had been written to him asking for it, and to his sister and other persons connected with him inquiring as to his whereabouts, but information was not obtained : Held, affirming the decision of the Supreme Court of New Brunswick, that this was not a sufficient foundation for secondary evidence ; and the letters should have stated that this specific paper was wanted ; that an independent person should have been employed to make inquiries in Scotland for the custodian of the document, and to ask for it if he had been found ; and that a commission mighl have been issued to the Court of Session in Scotland, and a commission appointed by that Court to procure the attendance of the custodian and his examination as witness: Porter v. Hale, 23 S. C. B. 265. ORAL EYIDEXCE TO EXPLAIN OR ADD TO DOCUMENTS. The rule of law is clear that, -where a contract is re- duced into writing it is presumed that the •writing con- tains all the terms of it, and evidence will not he admitted of any previous or contemporaneous oral agreement which would have tlie effect of adding to or varying it in any way. This is a rule of evidence at common law. The Statute of Frauds also requires that certain con- tracts should he in writing, and therefore hy implication evidence which is not in writing relating to such contracts is excluded. In other cases it is the duty of certain officers to re- cord, in a manner more or less solemn, what is said or done; as in the case of records of Courts of law. How far such authentic memorials are conclusive is not very well settled, hut they are certainly so in some cases. It is obvious that evidence might frequently be objected to as infringing more than one of these rules, and where several objections 22 ORAL EVIDENCE TO EXPLAIN DOCUMENTS. might be good, it is not always easy to see which of the two in a particular case forms the ratio decidendi. The cases which we are about to consider are those where the decisions have been founded or seem likely to have been founded on the common law rule now under consideration. Another remark which appears to be useful is this: and although the principles upon which the admissibility of evidence in these cases depends would appear to be general as regards all written instruments, they have not been applied in a precisely similar manner to all classes of cases. But perhaps this may be partly ex- plained in the following manner. Inasmuch as the Question is whether the written memorandum by its terms excludes oral evidence, the admissibility of the latter is in all cases to a certain extent, and in some exclusively so, a question of interpretation of the written docu- ment. And inasmuch as, in analogy to the use of technical terms, language, by being constantly used for the same purpose, almost always acquires conventional meaning, such corresponding groups of cases as have been mentioned naturally arise. In fact there are two questions of interpretation to be solved whenever oral evidence is objected to on the ground that it contradicts a written instrument. First, the interpretation of the written contract as it stands; second- ly, the interpretation of the clause which it is proposed to insert by way of addition or explanation, for that is really what is done; and this explains how it is that the same question as that which is raised upon the admissibility of evidence was formerly sometimes raised upon demurrer. Where a party endeavours to prove by oral testimony the contents of a written document, the Court before giving effect to such testimony should be convinced that all the terms have been proved. It is not sufficient for the party undertaking such a duty to furnish evidence of certain clauses which support his claim, but he must set out the whole document so that the Court may be able to give effect to all its provisions, and that by testimony of the clearest nature. The document need not be set forth in evidence in its very words, but its exact sense and effect must be shewn : Ross v. Williamson, 14 O. R. 184. Where parol evidence is admissible to control the legal operation of a deed, no effect can be given to such evidence if contradictory or its accuracy is involved in doubt: Re Browne, 2 Chy. 590. An instrument under seal may be varied in equity by an agreement for valuable consideration not under seal: Brown v. Deacon. 11' Chy. 108. Parol evidence is always admissible to shew the situation of the parties at the time the writing was made, tne circumstances under which it was made, the time when it was made, and the relative trades of the respective parties: Christie v. tiurnett, 10 O. It. GOO. For the purpose of the interpretation of an agreement, the terms of which are ambiguous, evidence of witnesses in regard to circumstances, such as the manner in which the parties have executed it, and a prior agreement for the same purposes, is ORAL EVIDENCE TO EXPLAIN DOCUME1 23 admissible: Qregoire v. *l- I harle* de Bellechasse, Q. A, 29 S. C. -1~>. tividence is admissible to explain tbe circumstances under which an instrument was executed, including the facts known to the parties. The Courl will doI readily adopl a construction of a deed which will nnllify the rights given under it to one of the parties: Butter- ley Co. v. \v„- EucknaU Colliery Co.. 7S I.. .1. <"!.. 63; (1000) 1 Ch. 37; 99 L". T. 818; 25 T. L. R. 45 C. A. The construction of a con- tract cannot bo affected by the declarations of the parties made subse- quent to its date, though when words are ambiguous they may be explained by the previous or contemporaneous conducl of the parties. The appellants chartered vessels for the carriage of coal sold by them specifying the rate of delivery and the amount payable by the respond- ent for demurrage. The charges for demurrage under the contract exceeded those payable by the appellants to the owner under the several charterparties : — Held, thai the respondent was liable for the rates stated in the contract irrespectively of the terms of the charterparties. and that there was no trust or contract of agency between the parties. Also that, delivery of the several cargoes having been accepted by the respondent, the appellants wen- not precluded from recovering demurrage by any breach of contract committed by tnem. The only remedy of the respondent in that case was to sue for damages in respect of such breach. Boulder v. Commissioner of Public Works, 77 L. .T. P. C. 58: (1008) A. C. 27C: 98 L. T. 684 ; 11 Asp. M. C. 01. An oral term can only be added to a written agreement by clear and unequivocal testimony. A memorandum in writing, signed by the seller, not to carry on business in competition with the purchaser, and made after the sale was completed, and not being a term of the original agreement, is not supported by the orig- inal consideration, and cannot be enforced: Mund v. Btiseh. ~ W. I.. II. 305; 1 Bask. L. R. 227. Where .me consideration is stated in a deed, any other considera- tion that does not contradict the instrument may be proved. Proof Proof of of a larger consideration that that stated does not contradict the ^^ instrument: Frith v. Frith. 75 L. J. P. 0. 50; (1906), A. C. 2o4 : 94 I.. T. 383; 5 1 W. P. <">lv 22 T. L. R. 388. Evidence of a con- temporaneous or a] agreement to renew a bill of exchange is inad- missible in an action upon the bill: Act'" London Credit Syndicate v. Neale, 67 I.. .1. Q. B. 825 : <1S'.)M. 2 Q. B. 487; 79 L. T. 323:— Held, that evidence of a parol agreement to extend for two years the time for the payment of a note payable on demand was not admis- sible: Portions v. Muir. 8 <>. ft. 127. Parol evidence is admissible to deny the receipt of value for a bill or DOte, but not to vary the engagement to pay the amount at the time specified: Dnris v. Mc- Bherry, 7 I". < '. It. 490. Where a written contract exists, parol evidence may be sriven to prove a verbal warranty respecting a 24 OBAL EVIDENCE TO EXPLAIN DOCUMENTS. Warranty Effect of alleged deed. Mutua mistake. matter on which the written contract is wholly silent. Such evidence is not admissible so far as to enlarge the scope of a warranty which is contained in the written contract: Lloyd v. Sturgeon Falls Pulp 5 L. T. 162. Evidence of parol misrepresentation is admis- sible although a written warranty was given: Watson Manufacturing Co. v. Stock, 4 M. L. R. i46 (Man.) See Grand Trunk Railway Company v. Fitzgerald, 5 S. C. R. 204. Pa'-ol evidence is not ad- missible to shew that by mistake the written agreement did not ex- press the true agreement unless mistake is expressly charged: Mc- Donald V. Rose, 17 Chy. 057. Although parol evidence is admissible to prove rescission of a written agreement concerning land, such evidence eannot be given to prove a subsequent agreement to vary the terms of the written agreement : Vezey v. Rashleiyh, 73 E. J. Oh. 422; (1904), 1 Ch. 634; 90 L. T. 663; 52 W. R. 442. The principle upon which parol evidence will be received to cut down a deed abso- lute on its face to a mere security considered and acted on. Le Targe v. Dc Tuyll, 1 Ch}'. 277, commented on and approved of: Bernard v. Walker, 2 E. & A. 121. A conversation prior to a written agree- ment under seal cannot be received to alter its terms : Gilpin v. Greene, 7 U. C. R. 586. Parol evidence was held admissible to iden- tify a mortgage as the instrument enclosed in a letter mentioning it : Ward v. Hayes, 19 Chy. 239. Upon the question whether a deed absolute in its terms was really intended as a security merely, an unsigned memorandum of the transaction made at the time for the use of the parties by the attorney's clerk who drew the deed for tnem was held sufficient to let in parol evidence. Parol evidence does not become admissible in this class of cases because of a note in writing sufficient to take the case out of the Statute of Frauds, but because of the existence of some fact which evinces the real inten- tion of the parties to have been different from that expressed in the deed: Holmes v. Mathews, 3 Chy. 379. The amount mentioned in a conveyance as the consideration money is not conclusive evidence of the true consideration in favour of the vendor on a bill filed by him impeaching the transaction on the ground of inadequacy of price: Shank v. Coulthard, 19 Chy. 324. The true consideration for a bill of sale, must be set out in it with substantial accuracy: Bathgate v. Merchants' Bank, 5 M. L. R. 210 (Man.). The Court will re- parol evidence to rectify a written instrument notwithstanding the language used was that intended by the parties, where the legal effect <,f such language is different from what was the intention and agreement of the parties: Merritt v. Ives, 2 O. S. 25: — Held, that the rule that the Court will not interfere to rectify an instrument on parol o.idcnce on the ground of mutual mistake, when the de- fendant denies that there was such mutual mistake, only applies where the defendant so denying was a party to the instrument in question: Ferguson v. M'insor, 10 O. R. 13; S. C, in appeal, 11 O. OBAL EVIDENCE TO EXPLAIN DOCUMENT8. 25 It. 8S. 1). agreed to purchase certain lands as agenl for K., and Agency. lingly executed an agreement for the purchase of the same in her own nam.': — Held, that evidence of D.'s agency was receivable though not in writing, and that no subsequent dealing of I>.. as by acquiring the legal estate, could operate to the disadvantage of A. Quaere, whether Bartleti v. Pickersgill, 1 Cox 15, -I East, 577 (n), is still to be regarded as good law: Kitchen v. Dolan, :i O. R. 432. Where the purchase was made by a person in his own name, but in reality for the benefit of another, parol evidence of the agency was held admissible, and the purchaser who entered into the contract in his own name and who was a defendant was held a good witness on behalf of the plaintiff against his co-purchaser the other defendant: Sanderson v. Burdett, 18 Chy. 417. Parol evidence is admissible to retorm a mortgage which omitted land shewn by the mortgagor to the mortgagee as part of the property to be mortgaged: Merchants Hank of Canada v. Morrison, 19 Chy. 1. Quaere as to the admis- Construc- sibility with a view to the construction of a statute of the language st . Uut ,. used by the Secretary of State for the Colonies in introducing it in Parliament : Smiles v. Belford, 1 A. R. 436. A by-law to establish By-law. a road must on its face shew the boundaries of the road or refer to some document wherein they are defined: and the intention of the framers of the by-law cannot be ascertained by extrinsic evidence: Township of St. Vincent v. Greenfield, 12 O. R. 207. A chattel mort- gage of certain timber was expressed to be given in consideration of the payment of $300 to the mortgagor, all the covenants and pro- visions being applicable to a money payment or default therein. At the trial, it was endeavoured by parol evidence to shew that upon the delivery of certain pieces of timber sold by the father of the mortgagor to the mortgagee the whole of the provisions of the mort- gage were to become ineffective, and the mortgagee be prevented from claiming payment of the sum stipulated for in the manner and at the time set forth:' — Held, that the parol evidence was inadmissible: Tyson v. Aoercrombie, 10 O. R. 98. Where a party, being in close Fraud, custody at the suit of another, agreed to execute a conveyance to him as security for his debt and costs, and executed an assignment ac- cordingly, but the instrument was deemed in law an absolute assign- ment giving the assignor a right of re-purchase, and after the day of payment had elapsed this was set up as a bar to the party's right to redeem, parol evidence was admitted on the ground of fraud: Stewart v. Norton, 2 Chy. 45. Although extrinsic parol evidence identify - may be given to identify one of the parties it cannot bo piven to > n S p;»rty. supply information as to the person to whom an offer in a memor- andum required to be in writing by the Statute of Frauds was made or fur whom it was intended: 1Yhitc v. Tomalin, 19 O. R. 513. Ac- tion for wrongful distress. The plaintiff produced a receipt dated 3rd March. 1S60, for rent to date: — Held, that parol evidence was 26 ORAL EVIDENCE TO EXPLAIN DOCUMENTS. admissible to explain the circumstances under which the receipt was given, but not to vary or control it : Baskcrville v. Doan, 12 U. C. C. P. 127. The plaintiff sought to restrain the defendant from cut- ting timber on lands demised to him contrary to the covenants in the lease. At the trial, defendant tendered parol evidence of an agreement between himself and the plaintiff distinct from and prior to the lease, which lie contended modified the restrictions in the lease and gave him the right to cut the timber: — Held, that evidence of the parol agreement could not be admitted : Gilroy v. McMillan, 6 O. K. 120. In ejectment the plaintiff proved a patent to himself which had been in his possession since 1803. Defendant claimed under a deed from A. to B., executed in 1800. A. was not shewn to have been in possession and no deed from the plaintiff to A. was produced, nor any evidence given that he had ever executed such a deed ; the facts proved only went to shew a bare probability that ne might have done so : — Held, that there was no legal evidence for the jury on the facts stated to shew an alienation by the patentee : Petit V. Renard, 6 U. (j. R. 501. As to admissibility of extrinsic evidence to explain the capacity in which the maker signed a promissory note : See Brown v. Howland, '.) O. R. 48; 15 A. R. 750. When a proposal is made in writing by one party and accepted ad idem by the other, either verbally or by acting upon it. the contract is a written one: Ellis v. Midi, 10 A. R. 220. Semble, that the fact of agency may be proved by parol though the appointment was in writing : See Wilson v. Street, Latent •> All. 251. (N.B.). A latent defect in a grant cannot be remedied by defect. parol evidence. In order to correct an error in the description part of any grant by parol evidence, the evidence must be such as to leave no doubt of the intention of the grantor : Brennock v. Fraser, James. 178 (N.S.). The defendant having given a written order to the plaintiffs for a binder, it was delivered to him, but he afterwards re- Condition- turned it claiming that he was not satisfied with it. At the trial the al contract evidence shewed that either at the time of the negotiations or after the order had been signed a verbal agreement had been made between the defendant and the plaintiff's agent to the effect that if the binder did not work to the defendant's satisfaction he might return it: — Held, following Mason v. Scott, 22 Thy. 502. that if the condition sought to be proved was agreed to at the time of the signing of the order parol evidence of it could not be received, as it would be a variation of and contradictory to the written contract: and if subse- quent to the signing of the order no consideration for the plaintiff's entering info it had been proved ; and that the plaintiff's verdict should be upheld: Lindley v. Lacy, 17 C. P.. N. S. 578; Morgan v. Griffith, L. R. 6 Ex. 70; ErsJcine v. Adeane, L. R. 8 Ch. 750. distin- guished, on the around that in each of these cases the verbal agree- ment soushf to be proved was collateral and on a subject distinct from that to which the written contract related: faults v. EaJcet, 11 PBB8UMPTIVB EVIDENCE. 27 M. J,. K. TiitT (Man.)* When a contract is (o be made out partly by written document and partly l>y parol evidence, the whole becomes a question for the jury: .1/ PRESUMPTIVE EVIDENCE. Advance- ment of child. Death. Graystock V. Barnhart, 26 A. R. 545: — Held, per Hagarty, C.J.O. (hffisitante), and Burton, J.A. — The presumption spoken of in s.-ss. 2 (a) and (b) of s. 2 of R. S. O. 1887, c. 124, "An Act respecting Assignments and Preferences by Insolvent Persons," as amended by 54 Vict. c. 20 (O.), is a rebuttable one, the onus of proof being shifted in cases within the sub-sections. Per Maclennan, J.A. — The presumption is limited to cases of pressure, and as to that is irre- buttable. Per Osier, J.A. — The presumption is general and is irre- buttable, but the security in question in this action is supportable under the previous promise. Cole v. Porteous, 19 A. R. Ill, distin- guished. Lawson v. McGeoch, 20 A. R. 464. The evidence of acts or declarations of a father to rebut the presumption of advance- ment must be of those made antecedently to or contemporaneously with the transaction ; but the subsequent acts and declarations of a son can be used against him, and those claiming under him, by the father, where there is nothing shewing the intention of the father at the time of the transaction sufficient to counteract the effect of those declarations : Birdscll v. Johnson, 24 Chy. 202 : — Held, that the word " signed " before the lessor's name raised no presumption that the lease was a copy, not the original: Becker v. Woods, 16 U. C. C. P. 29. When one to whom a devise prima facie beneficial to him is made, neither accepts nor rejects the same, but remains pas- sive, he will be presumed to accept : Re Defoe, 2 O. R. 623. The presumption of death arising from continued absence of the demand- ant's husband, unheard of for seven years, is sufficient to sustain an action for dower as against the objection that he is still living : Giles v. Morrow, 1 O. R. 527. Another class of presumptions includes those cases in which the jury will he directed hy the Court to presume a fact of -which no evidence has heen given. Thus a bill of ex- change is always presumed to be given for a good consideration : I'hillislcirk v. Pluckwell, 2 M. & S. 395. The law presumes in favour of possession : Lee v. Johnstone, L, R. 1 H. L. Sc. 426. So the law presumes that a party intended that which is the immediate or prooable consequence of his act : R. v. Dixon, 3 M. & S. 15. In such cases in the absence of contrary proof the jury are, it should seem, as much bound to find agreeably to the legal presumption as they are to find according to the law as explained by the Judge. A third class of presumptions is exclusively within the province of the jury, and they occur when direct proof of a fact is offered to the jury as prohahle evidence from which they may infer another fact. As where a witness says he lent a certain printed book to A. B., who afterwards returned to him a book exactly like it, which he believes to be the same but can- not swear to its identity, this is proof of identity, for it is more PRESUMPTIVE EVIDENCE. 29 probable I lull it was the same than another: Fryer v. (Inthercole, 4 Exch. 262. If the sheriff's vendee verbally agree to accept payment In f:i of the redemption money for land sold for taxes personally, at a 5ifv' r distance from the county town, in lieu of its being made to the treasurer for him, and I he owner acts on this agreement, the other cannot afterwards to the owner's prejudice require the money to be paid for him to the treasurer, refuse to receive it himself when it is too late to pay the treasurer, and insist on holding the land as for- feited. Where such an agreement was proved by a credible witness, but there was contradictory evidence as to whether what took place amounted to an agreement, the Court holding thai the presumption in a case of doubt must be in favour of fair dealing and not of forfeiture, gave the owner relief: Cameron v. Barnhart, 14 Ch. 6G1. Where an application is made to presume the death of an in- Death, dividual who has disappeared, the Court, on being satisfied that every reasonable means has been exhausted by advertisement and other- wise (without success) to ascertain his whereabouts, and on the evidence generally that there is every reason to believe that he is dead, will proceed to presume his death without regard to the amount of time which may have elapsed since his disappearance, though the lapse of time is often an important element in the enquiry : Matthews, In the goods of, tiT L. J. P. 11; (189S), P. 17; 77 L. T. (>."»(). The Court will presume the death of a person after seven years although there be strong evidence to shew that the person has reason to keep his identity concealed : Willis v. Palmer, 53 TV. R. 169. Though death will in a proper case be presumed, there is no presumption that a person died without issue. That is a matter to be proved, and there must be such evidence as would justify a jury in finding as a fact that there was no issue : Jackson, In re, v. Ward, • se, and are not worth much except under special circumstances. If the witness not called is present at the trial, he may be called by the opposite party. If not present his absence may be clue to other causes than that of wilful suppres- sion. Where the document is excluded by the ruling of the Judge, Exclusion it is because the law presumes that the ends of justice will not be °f docu- advanced by the reading of it, and it seems a strong thing for the t ourt to invite inferences against the objecting party, though counsel cannot be restrained from addressing any, however fallacious, argu- ments to the jury. But generally there is a fair presumption against a parly who keeps back a document in his own possession: Atty.- G-en. v. Windsor, Dean of, 24 Beav. 679. Evidence of the most con- Cutting elusive character must be adduced in order to have a deed abso- v "' 1 '' lute in character declared to operate as a mortgage only: WcMicken v. Ontario Bank, 20 S. C. R. 548. The fact that a deed after it had Delivery been signed and sealed by the grantor is retained in the latter's of deed. Possession is not sufficient evidence that it was never so delivered as in take effect as a duly executed instrument. The evidence in favour of the due execution of such a deed is not rebutted by the facts that it comprised all the grantor's property, and that while it pro- fessed to dispose of such property immediately, the grantor retained the possession and enjoyment of it until bis death: Zicicker v. '/.wicker. 20 S. C. R. ~>27. A grant of land bounded by the bank of a nnvitrable river Grant of land : de- or an international waterway, does not extend ad medium plum scr j,,tiuii. as in the case of a non-navigable river. If in a conveyance of land the description is not ecrtain enough to identify the locus, it is to be construed according to the language of the instrument, though it may result in the grantor assuming to convey more than bis title war- ranted. The intention of the parties to a deed is paramount and must govern regardless of consequences. "Res magii valeat quam pereat is only n rule to aid in arriving at the intention, and does not authorize the Court to override it. A general description of land as being part 32 I'KKM/MPTIVE EVIDENCE. Confiden- tial rela- tions. Indemnifi- cation of mortgagor Ownership of land. Solicitor's knowledge Parent and child. Highway. of a specified lot must give way to a particular description by boundaries, and if necessary the general description will be rejected as falsa dcmonstratio. Where there is an ambiguity on the face of a deed incapable of being explained by extrinsic evidence, the maxim verba fortius accipiuntur contra proferentem cannot be applied in favour of either party. Where a description is such that the point of commencement cannot be ascertained it cannot be determined at the election of the grantee; Barthel V. Scotton, 24 S. C. R. 367. The principle that where confidential relations exist between donor and donee, the gift is on grounds of public policy presumed to be the effect of those relations, which presumption can only be rebutted by shewing that the donor acted under independent advice, does not apply so strongly to gifts from parent to child or from principal to agent. Thus in case of a gitt to the donor's son for benefit of the latter's children, when said son had for years acted as manager of his father's business, when he was the only child of the donor hav- ing issue, and when the donor nine years before his death had evi- denced his intention of making the gift by signing a promissory note in favour of the son, by renewing it six years later, and by volun- tarily paying it before he dieu, such presumption does not arise: Trusts and Guarantee Vo. v. Hart, 32 S. C. R. 553. Where a mort- gagor conveys his equity of redemption in the mortgaged property without any stipulation in the conveyance as to payment of the in- cumbrance, the right to indemnification against it does not arise from anything contained in the mortgage or conveyance, but from the facts, and this may be rebutted by parol evidence or otherwise. This right where it exists arises from implied contract: Warring v. Ward, 7 Ves. 332, explained: Beatty v. Fitzsimons, 23 O. R. 245. That the ownership of lands adjoining a highway extends ad medium filum vice, is a presumption of law only which may be rebutted, but the presumption will arise though the lands are described in a convey- ance as bounded by or on the highway : O'Connor v. Nova Scotia Telephone Co., 22 S. C. R. 276. Where such motives exist in the mind of a solicitor as would bo sufficient with ordinary men to in- duce them to withhold information from the client, the presumption is that it was withheld ; and the uncommunicated knowledge of the solicitor is not imputed to the client as notice: Cameron v. Hutchin- son, 16 Chy. 526. There is ordinarily no presumption of undue in- fluence in the case of a gilt from a father to a son, unless it is proveu that the son occupied at the time a relation of confidence and influence ; but if that is proved the gift may need for its support the same evidence as a gift to any other person occupying such relation : McConnell v. McConnell, 15 Chy. 20. In order to establish the ex- istence of a public highway by dedication it must appear that there was not only an intention on the part of the owner to dedicate the land for the purposes of a highway, but also that tue public ,ae> ill \i;say EVIDENCE. 33 cepted Buch dedication by user thereof as a public highway: Moore v. Woodstock Woollen Mills Co., 29 S. G. K. . To bus- Right of tain a plea of right of way by lost deed, no proof is requisite of such wav - deed haying actually existed, hut the jury have a right to presume such deed from an uninterrupted usage of a way exercised as a matter of right and necessary to the convenient enjoyment of t In- land to and from which the road leads : Jones v. Jones, 2 Kerr. 265 (N.B.). Where a party has it in his own power to give evidence of a particular fact, and does not give the best evidence within his reach, the presumption ought to be against him: Brians v. M\ Bride, 1 P. & B. tilkJ (N.B.). The admission on the record that parties are Admission alive precludes the presumption of their death arising from continued , iat I' ;utv alive, absence: Doanc v. McKenny, James. 32S (N.S.). Where two or more persons, and especially where relatives perish in the same cal- amity, the law recognizes no presumption of survivorship; but in Survivor- the total absence of all evidence respecting the particular circum- B "''' stances of the calamity, the matter will be treated as if all of them had perished at the same moment, and consequently none of the parties will be held to have transmitted any rights to the other: Hartshorn et al. v. Wilkins et al., 2 Old. 276 (N.S.). Where a husband and wife were murdered in a massacre in China on July 9th, 1900. the Court (following Wainicright, In the floods of, 28 L. J. P. & M. 2: 1 Sw. & Tr. 258), gave leave to pre- sume the deaths on or since the above date, and also to swear that tiieie was no reason to believe that either husband or wife survived each other: Beynon, In the goods of, 70 L. J. P. 31; (1901), P. 141 : M L. T. 271; 65 J. P. 246. When a ship founders at sea without anyone knowing the cause. [Jnaea- there is a presumption that the disaster is a result of its unsea- wortm - , __ ness. worthy state. \\ here the owner sets up accident or vis major he is bound to prove it: Grenier v. Connolly, 42 S. C. R. 242; Q. R. 34 s. c. 405. HEARSAY. It is a general rule of evidence that declarations of persons not made npon oath are inadmissible evidence of the fact declared: Spargo V. Broun, 9 R. & C. 938 : unless it be by way of admission by a party to the suit. Therefore, hear- say evidence, which is the mere repetition of such declarations, upon K.E.— 3 34 HEARSAY EVIDENCE. i ho oath of a witness who heard them, is excluded. There are, how- ever, certain classes of cases in which hearsay is on various grounds aamissible. Pedigree. I n questions of pedigree the oral or written declarations of deceased members of the family are admissible to prove a pedigree. And this exception is founded on the obvious difficulty of tracing descent and the relationship of deceased members of families by any other evidence. Declarations of the kind above described are strictly admissible only in inquiries relating to descent or relationship, or in tracing the devolution of property. In proving recent events, such as the place of birth, age. death, etc., of a person, where that fact is strictly in issue, stricter proof may be reasonably required. The hear- say must be from persons having such a connection by blood or marriage with (he party to whom it relates, that it is natural and likely from their domestic habits and connections that they are speak- ing the truth and are not mistaken : Whitelocke v. Baker, 13 Ves. 514. j ne relative whose declarations are offered must be proved to be dead before they can be admitted in evidence : Butler v. Mountgarret, Vt., 7 H. L. C 633. Unless his death may be presumed. If the declara- tions were made after a controversy has arisen with regard to the point in question, they a~e inadmissible : Berkeley Peerage, 4 Camp. 401. The declaration may be admissible though made from interested motives, and in order to prevent future controversy : H. C, Id. 418. To displace title made under a near relative capable of inheriting, it should be shewn that there is some one in existence representing the alleged elder branch of the family: Park v. Henderson, 7 U. C. R. 182. Before a stranger can give evidence of declarations as to the pedigree made by a relation of the family, there must be shewn : 1. The death of that relation; and 2. The fact of his relationship to the family, which fact cannot be proved by his own assertion: Dunlop v. Servos, 5 V. C. R. 284. Declarations made by the deceased mother of the plaintiff, in the hearing of the plaintiff and of the plaintiff's son, as to the marriage of the plaintiff's parents, received in evidence to prove the plaintiff's pedigree: Walker V. Murray, 5 O. R. 638. The declara- tions of a deceased testator respecting his age at the execution of his will are not admissible: Stephen v. Ford, 3 U. C. R. 352. Another exception to the rule which excludes hearsay general in- ev idence is -where the question relates to matters of public terest. or general interest. The term "interest" here means pecuniary interest or some interest by which the legal rights or liabilities of a 'lass of the community are affected; and the grounds of admissibility ara : Because the origin of such rights is generally ancient and obscure, and consequently incapable of direct proof; because in local matters all persons living in the neighbourhood and interested in them are likely to be conversant with them ; because, common rights are 1 1 1'AKSU EVIDENCE. naturally the subject of common and public conversation, in the course ot which statements are made which uncontradicted are likely to be true; and thus a trustworthy reputation may arise from the con- currence of many unconnected with each other and interested in in- vestigating the truth: R. v. Bedfordshire, 4 E. & B. 541-2. The rule with regard to the practice from whom the declarations proceed has been thus laid down : In cases of rights or customs which are not strictly speaking public, but are of a general nature, and concern a multitude of persons (as in questions with respect to boundaries and customs of particular districts), it seems that hearsay evidence is not admissible unless it be derived from persons conversant with the neigh- bourhood. On the other hand, actual inhabitancy in the place the boundaries of which are in dispute is unnecessary. But where the right is strictly public (a claim of highway for instance), in which all the King's subjects are interested, it is difficult to say that there ought to be any such limitation. In a matter in which all are con- cerned, reputation from any one appears to be receivable, but almost worthless unless it came from persons who are shown to have some means of knowledge, as by living in the neighbourhood or frequently using the road in dispute: ('rease v. Barrett, 1 ( \ M. & It. 919. Such declarations, as in questions of pedigree, must not have been made post litem motam : R. v. Cotton, .'! Tamp. 444. The declarations of old persons still alive cannot be admitted as proof of reputation: Woolway v. Rowe, 1 A. & E. 117. The locality and extent of a square being in question: — Semble, that this being a matter of a quasi public nature, in which a class of the people in the neighbour- hood would be concerned, evidence of reputation was admissible : Vankoughnet v. Deniaon, 11 A. R. 699. The declaration of a person as to the boundaries of land is not evidence unless it is made while he is in possession of the land and is against bis interest, or unless then' is privity between him and the person against whom his declara- tion is offered: 8artell v. Scott, 6 All. 166 (X. I'..). Declarations respecting the boundaries of land by a person in possession and under whom the defendant claims are evidence against him in an action in which the boundaries of the same land are in dispute: Mies v. Burke, 1 lug. 237. When hearsay is introduced, not as a medium of proof in order to establish a distinct fact, but as being in itself Fact part a part of the transaction in question and explanatory of it, " f tl:uw K it is admissible. Words and declarations are admissible when they accompany some act the nature, object or motives of which are the subject of the enquiry: Hyde v. Palmer, 3 R. & S. Gol. In the case of an equivocal act, the accompanying declarations are often abso- lutely necessary to show the animus of the actor. Thus a payment 36 Ili:U;s.\Y EVIDENCE. by a debtor may be explained by an accompanying request to apply it to a certain debt. Evidence Declarations are admissible as evidence of feelings or of of feelings, suffering; tbus in an action of assault on plaintiff's wife, evidence of what she snid immediately on receiving the hurt is admissible for him: Thompson v. Trcvanion, Skin. 402. It is not every declaration that is receivable in evidence merely because it accompanies an act done by the speaker. The admissibility of the declaration depends not merely on its accompanying an act, but on the light which it throws upon an act which is in itself relevant and admissible evidence : i. right v. Tatham, 7 Ad. & E. 313. As a claim. A declaration is sometimes receivable per se as a claim. Thus where the plaintiff asserts a right to goods under a sale to him by C, and the defence is that the alleged sale was collusive, defen- dant's witness may be asked " whether he had not heard C claim the goods after the sale?" Under such circumstances a claim is as much an act done as if C had taken the goods saying they were his : Ford v. Elliott, 4 Exeh. 78. In many of these cases the declarations are not strictly instances of hearsay (i.e., second-hand) evidence, though com- monly so classed. The res gesta in each case is original evidence; and the accompanying declaration being part of it is also original. When a surveyor stated that he measured certain distances from a post pointed out to him by B, and ran his course from that and tested his line from four points given him by B, and found it correct, the evidence was improperly received: The Queen v. Budge, vol. 20. 531 (N. B.). Docu- Under the head of hearsay are usually classed those s'^rtin^a cases in which expired leases, grants, or other documents right. of a similar kind actively asserting a right on the part of the maker, have been admitted as evidence of that right in favour of persons claiming under him ; they are in fact acts of ownership, and as such evidence of property. Generally what any one writes or says in his own favour cannot be evidence for himself or his repre- sentative: Olyn v. Bank of England, 2 Ves. Sen. 43. Therefore entries made by a deceased person under whom the defendant claims acknow- ledging the receipt of his rent for the premises in question, are not admissible for the defendant in proof of his title to them: Outram v. \forrirood, ."» T. It. 121. Mere declarations of right coupled with no other act or actual exercise of it. proved or presumable, are inadmis- sible as evidence in favour of the right asserted, except as against those who claim under the declarant. The mere absence of interest will not make the declaration of a deceased party evidence : Berkeley Peerage Case, 11 CI. & Fin. 109. In which case declarations made by deceased clergymen were rejected as evidence of marriage. On a some- what similar principle tiie declarations of the testator as to his inten- tions are admissible to support his will if disputed on the ground of Ill \K-\Y EVIDENCE. 37 fraud, circumvention or forgery: Ellis v. Hardy, 1 M. «.V Bob. 525. So they are admissible to impeach the will by proving such fraud: Small v. Mlm. 8 T. R. 147. So. such declarations by a testator made Declara- before the execution <>f his will arc admissible t<> prove thai altera- JjS^Jl tions to the will or any incorporated documenl wire made prior to execution: In re Sykes, L. R. 3 P. & M. 26. Bui declarations made after execution cannot be so used: Bench v. Dench, 2 P. D. 60. In the case of a lost will declarations by a testator as to its existence and contents, whether made before or after execution, are admissible: Sugden v. St. Leonards, L. It. 1 I*. 1>. 134, ('. A. So such declarations are admissible to show what papers constitute a will: Gould v. Lakes, 6 P. I). 1. In a variety of cases the declarations of deceased per- Declara- sons (not parties) made against their own interest have tlon9 . been admitted: Barker v. Hay, 2 Buss. <»7n ; and they are admis- te rest. sible as evidence of all the facts therein stated, though some of them may not have been within the parties' own knowledge; for the whole declaration must be taken together: Crease v. Barrett, 1 C. M. & R. 919. An interest arising from the liability of the party to a prose- cution if his statement was true is not such an interest as will make his declarations evidence; and for this reason the statement of a clergyman that he had celebrated an irregular marriage was held not to be evidence of the marriage: Sussex Peerage, 11 CI. & Fin. 83. A declaration by the deceased occupier of the land that he rents it under a certain person, is evidence of that person's seisin : Peaceable v. Watson, 4 Taunt. 16. The principle is that occupation being presump- tive evidence of a seisin in fee, any declaration claiming a less estate is against the party's presumed proprietary interest : Crease v. Barrett, 1 C. M. & R. 931. Entries against interest : Turner v. Dewar, 41 U. C. R. 361. Repair books of company containing statements of repairs required, admitted without calling the persons by whom the entries were made: Canada Atlantic v. Morley, 15 S. C. R. 145. A claim by the next of kin of a deceased legatee cannot be adjudicated upon in the absence of a personal representative of such legatee. Bui where entries had been made in the executor's hooks, giving credit to such next of kin for portions of such deceased legatee's share, such entries were held to be evidence of the relationship of debtor and creditor between such executor and next of kin. and could be read without entering into the consideration of the origin of the indebted- ness : Re Kirkpatriek v. Stevenson, 10 P. R. 4. An oral declaration is as admissible as a written one: Bewley v. Atkinson, 1.". Oh. 2S'>. O. A. (Jenerally the question of admitting statements against interest made by deceased persons occurs where the suit is inter alios and the declarant is a stranger to it. But where the plaintiff sued as executor of the payee of a note, he was allowed to rebut the Statute of T.imita- 38 HEARSAY EVIDENCE. Entry made in course of duty. Distinc- tion be tween de- clarations. Hon by proof of a written acknowledgment made in a book by the itor of payment of interest on the note by defendant within six years: Bradley v. James, 13 C. B. 822. The declarations against in- terest of persons who at the time of making them stood in the same situation and interest as the party to the suit, are evidence against that party: thus a declaration of the former owner of plaintiff's land that he had not the right claimed by plaintiff in respect to it, is admissible : Woolicay v. Rowe, 1 Ad. & E. 114. Where an entry or declaration is made by a disinterested person in the course of dis- cnarging a professional or othcial duty, it is in general admissible after the death of a party making it. Thus, a notice endorsed or served by a deceased clerk in a solicitor's office, whose duty it was to serve notices, is evidence of service : Pattcshall v. Turford, 3 B. & Ad. 890. Upon the same principle contemporaneous entries by a deceased shop- man or servant iu his master's books in the ordinary course of busi- ness, stating the delivery of goods, are evidence for his master of such delivery : Price v. Torrington, Ld., 1 Salk. 285. In order to render such entries evidence it must appear that the shopman is dead ; that he is abroad and not likely to return is not sufficient : Cooper v. Marsden, 1 Esp. 1. The entry must be by the person who actually did the act recorded by it: Polini v. Gray 12 Ch. D. 411 C. A. Entries made by deceased persons in the course of their business or in discharge of their duty are admissible only where it is the duty of the deceased both to do the act and to make an entry or record of having done it : Mousey v. Allen, 13 Ch. D. 558. Though a contemporaneous entry made in the course of office reporting facts necessary to the perform- ance of a duty may be admissible, yet the statement in it of other extraneous circumstances, however actually they may find the place in the narrative, is not proof of these circumstances: Chambers v. Bernas- coni, 1 C. M. & It. 347. Declarations against interest are declarations of all the facts stated whensoever made ; declarations made in the course of office or business are evidence only of the facts which it was the business of the officer or writer to state, and they must generally be contemporaneous with the act done: Smith v. Blakey, L. R. 2 Q. B. 326. Written statements by a deceased person are not admissible as made in the course of duty of the deceased person to do the par- ticular thing and to record the fact of having done it contemporane- ously: Rowe v. Brenton, 8 B. & C. 737, and Newcastle (Duke) v. Broxtowe Hundred, 2 L. J. M. C. 47, 4 B. & Ad. 273, distinguished; Mercer v. Deene, 74 L. J. Ch. 71, (1904) 2 Ch. 534, 91 L. T. 513, 68 J. P. 479. In an action to have a deed given by one defendant to another defendant declared a mortgage, evidence was offered of a declaration made by the grantor two years after the deed had been given and recorded to the effect that the deed was in reality only a mortgage to secure the repayment of $200: — Held, that this declara- tion could not operate to affect the rights of the grantee or derogate BECEIF1 - EXPERT TESTIMONY. from the conveyance to him: Kavanagh v. Slavm, 40 N. S. It. lHOn, followed; Linton v. Sutherland, 4u X. S. K. 148. A Btatemenl by a person, through whom a plaintiff claims, made to a stranger, not in the presence of the plaintiff, and before the transfer to the plaintiff, thai he, the predecessor in title, was do1 the owner of the property in question, is evidence as a declaration against interest and its rejection is ground for a new trial: Lloyd v. Adams, '\~ N. B, R. 690. The declarations of <>ne in adverse possession made on the premises while in occupation, importing a claim of a statutory title in himself, are admissible in an action of ejectment against his repre- sentatives to support the presumption of title from possession, whether they arc against interest or not and whether made before or after the statutory title accrued : Bundle v. McNeil, 38 N. B. R. 40G, 4 e. i.. a. .",21'. RECEIPTS. At common law the acknowledgment in a deed of the receipt of money was conclusive evidence as between the parties to it of such receipt: Baker v. Dewey, 1 L. & C. 704. But in the case of deeds. R. S. O. 1S!)7, c. 110, s. .*». now provides that "a receipt for consideration money, or securities contained in the body Receipt in of a conveyance, shall be a sufficient discharge to the person paving or" e 2/ . sufficient. delivering the same without any further receipt being indorsed on the conveyance, and shall in favour of a subsequent purchaser not hav- ing notice that the money or other consideration thereby acknow- ledged to be received was not in fact paid or given wholly or in part, be sufficient evidence of the payment or giving of the whole amount thereof." In general a receipt not under seal is only a prima facie acknowledgment thai the money has been paid, and therefore may be contradicted or explained: Graves v. Key, ."• B. & Ad. 318; though expressed to be "in full of all demands:" Bowes v. Foster, 2 II. & N. 770. EXPERT TESTIMONY. Expert evidence is an opinion by a Qualified person on facts already proved, involving scientific or technical knowledge, and is not evidence of things done or measurements taken which any one is competent to prove, the weight to be given to his evidence depending upon his ability: Cain v. Uhlman, 20 N. S. R. (8 R. & G.) 148; 8 C. L. T. 373 (X. S.). It is not as a general thing the besl rule in cases of varying Evidence opinion as to value, to reject one set of witnesses in toto and to Mtovalue. adopt the figures of an opposing set. It is rather to be Bupposed that neither is exactly to be followed and that truth lies somewhere 40 EXPERT TESTIMONY. Delegation of judicial functions. Medical wi tnesses. Draughts- men. Weight of evidence. Limit of number of expert wit- nesses in action, etc. between the extremes: Munsie v. Lindsay, 11 O. R. 520. An action for damages caused by collision between two vessels was tried with- out a jury, and after the evidence had been taken the trial Judge. with the consent of both parties, consulted two master mariners and adopted as his own their opinion based on a consideration of conflict- ing testimony as to the responsibility for the collision : Held, that this was a delegation of the judicial functions; and a new trial was ordered. The scope of Con. Rule 207, as to calling in the assistance of experts, considered : Wright v. ColUer, 19 A. R. 298 ; 24 S. C. R. 714. In an action on a promissory note against the maker, the defendant swore that the signature was not his, but an expert comparing it with admitted signatures said that it was written by the same person : Held, no ground for a new trial that the jury had not been directed that the evidence of experts was entitled to little weight when contradicted by direct testimony; and the learned Judge below having been satisfied with the verdict the Court would not interfere : Luce v. Coyne, 36 U. C. R. 305. It is not admissible to ask medical witnesses on cross-exam- ination what books they consider the best upon the subject in ques- tion, and then to read such books to the jury ; but they may be asked whether such books have influenced their opinion : Brown v. Hheppard, 13 U. C. R. 178. A physician may strengthen his memory by referring to works whicb he considers of authority; and counsel may read extracts there- from to him aud obtain his judgment thereon. An illustration is for this purpose as much a part of the book as the text, and it may when thus referred to be shown to the jury : Brownell v. Black, 31 N. S. R. 594. The evidence of professional draughtsmen was in this case held to have been properly admitted to shew what, according to the general practice and usage of draughtsmen in preparing plans, certain shadings and marks on said plans were intended to indicate : Attrill v. Piatt, 10 S. C. R. 425. As a rule the Courts discountenance pro- fessional or quasi expert evidence from being brought before them in writing: Attorney-General v. Gooderham, 10 P. R. 259. Where there is direct contradiction between equally credible witnesses the evidence of those who speak from facts within their personal knowledge should be preferred to that of experts giving opinions based upon extra judi- cial statements and municipal reports : Craioford v. City of Montreal, 30 S. C. R. 40G. By section 10 of the Evidence Act of Ontario, it is provided as follows : 10. Where it is intended by any party to examine as witnesses persons entitled according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without the leave of the Judge or other person presiding, to be applied for before the examination of any of such witnesses. \ I (MISSION'S. 4] ADMISSIONS. Admissions by a party to the record out of Court are evidence, and primary evidence of the fact so admitted. Rut though the express admissions of a party to the suit, or admissions How far implied from his conduct, are evidence against him, lie is at liberty to admissions .... . . , conclusive. prove tnal such admissions were mistaken or untrue except m the case of estoppel: Eeane \. Rogers, 9 B & 0. 586; bul it does not matter whether the mistake arose from misapprehension of law or fact. Such a mistaken impression, however, will not exclude the admission, though it will impair its weight as evidence: Newton \. Belcher, '.) Q. B. 012. The Consolidated Rules of Practice (Ontario) provide: 527. A party may be called upon by any other party to admit any Notice to document saving all just exceptions by a notice to admit, which may be admit doc- .. . ._ ., ~_ uments. according to 1< orm No. G3. 528. It shall be sufficient if written admissions are signed by the Admis- solicitor of the party bv whom or on whose behalf thev purport to be s ! ons suffi- ciently made, signed by solicitor. Y\ hen a material fact is alleged in a pleading, and the pleading of the opposite party is silent with respect thereto, the fact must be considered as in issue; therefore it was in this case competent for C, a co-defendant, to deny the execution of the bond, his pleading not expressly admitting it : Waterloo Mutual Ins. f'o. v. Robinson, 4 O. R. 295. The plaintiffs sought to support their case by reference to a certain statement in the defendant's pleading, in which besides denying their right to recover she herself also claimed title under a deed from the executors of S. : — Held, that they could not take that part of the pleadings which suited their purpose and reject the rest; they could not use a scrap of it to eke out the insufficiency of their own evidence: Barber v. McKay, 17 O. R. 5(!2. At a former trial a copy of an agree- ment between the parties was admitted in place of the original : — Held, that the admission so made was good for the subsequent trial: McDonald v. Murray, 5 O. R. 559. The examination of a party to an action taken for the purpose of discovery may be used at the trial to contradict the same party, but cannot be put in evidence as an admission : Arnold v. Caldwell, 1 M. L. R. 81, 155 (Man.). Admissions may sometimes be presnmed from the silence Silenct.. or conduct of a party when certain statements are made. On this ground it is that the uncontradicted statements of any one made in the presence and hearing of a party against whom they are offered are evidence : B essoin v. Stern, 2 C. P. 205. C. A. But no in- ference against him can be reasonably drawn if the fact stated before 42 ADMISSION'S. Plaintiff's title to sue. Witness to paper. Trustee. Compul- sion. Written instru- ment. him be one which is plainly not within his own knowledge, for he may be unable either to admit or contradict it. Although silence has been considered to be evidence of assent to a statement made orally in the presence of a party, no such inference can be fairly drawn from the mere omission of a party to reply to a letter: Richards v. Gellatlv, L. R. 7 C. P. 131 ; unless sent under circumstances which entitle the writer to an answer: Richardson v. Dunn, 2 Q. B. 218; see Lucy r. Mouflet, 5 H. & N. 229. The plaintiff's title to me, or tlie character in which the plaintiff sues, or in -which the de- fendant is sued, is frequently admitted by the acts and conduct of the opposite party, and in some cases the admission, though not strictly an estoppel, is conclusive. Thus, in the case of a libel on the plaintiff as envoy of a foreign state : Yrisarri V. Clement, 3 Bing. 432. Mere subscription of a paper as a witness is not in itself proof of knowledge of its contents: Harding V. Crethorn, 1 Esp. 5S. An admission is evidence whether made by a trustee or nominal party who sues for the benefit of another : Gibson v. Winter, 5 B. & Ad. 96. But the statement of a cestui que trust in either wholly inadmissible against his trustee, or admissible only as to his own interests, where the trustee holds in trust not for him only, but for others : Roulandson v. Wainwright, 8 Ad. & E. 691. It is no objection to the proof of an admission that it was made under com- pulsory process, but the compulsion must not be illegal : R. v. Garbett, 1 Den. C. C. 236. Such compulsory admission is no evidence of an account stated : Tucker v. Barrow, 7 B. & C. 623. Though the con- tents of a written instrument cannot in general be proved by a witness -without production of it, yet -what a party to the record says is primary evidence against himself as an admission, though it relates to the contents of a written instrument, and though the contents be directly in issue im the cause: Slatterie v. Pooley, 6 M. & W. 664. There can be no doubt, however, that such an admission ought in some cases to have no weight ; as where the party relying upon it is manifestly withholding more satisfactory evidence in his own power ; or where the admission assumes a degree of knowledge, whether of law or of fact, which the party admitting is not likely to possess ; as, the construction of a deed of settlement. A former suit had been instituted by the plaintiff, which had been dismissed, as the plaintiff had not acquired the legal estate until after the bill was filed : — Held, that under such circum- stances the question was not res judicata, and that the evidence taken in the former suit, and the examination of defendant by the plaintiff therein, were admissible in the present one, the issue being practically the same : Adamson v. Adamson, 28 Chy. 221. Admissions made with a view to compromise and in order " to buy peace " are not evidence against the maker: ADMISSIONS. 43 B. N. P., 236. An offer of a specific sum by way of compromise is Compro- evidence unless accompanied with a camion that the offer is confiden- Dau * tial or without prejudice: Wallace v. Small, M. & M. 446. Generally neither letters written "without prejudice," nor replies to such letters, without though not similarly guided, can be used as evidence; Hoghton v. prejudice. Hoghton, 15 Beav. 278. So when a correspondence is begun with a letter written " without prejudice," 1 that covers the whole correspond- ence: Ex p. Harris, 44 L. J. Bky. 33. Although a letter written "without prejudice" by a party in the course of a cause cannot be read against him, it may be read by him on the question of costs, in order to shew that he had made such an offer as rendered the further prosecution of the suit unnecessary : Boyd v. Simpson, 20 Chy. 278. All communications expressed to be written without prejudice, and fairly made for the purpose of expressing the writer's views on the matter of litigation or dispute, as well as overtures for settle- ment or compromise, which are not made with some other object in view and wrong motives, are not admissible in evidence. Where, therefore, a letter written without prejudice and coming within the above rule was admitted at the trial, the Court not being able to say that defendant was not prejudiced thereby, a new trial was directed : l'iric v. Wyld, 11 O. R. 422. A letter containing an offer written " without prejudice " means " I make you an offer ; if you do not accept it this letter is not to be used against me,'' but when the offer is accepted the privilege is removed: Omnium Securities Co. v. Richardson, 7 O. R. 1S2. A letter written " without prejudice " admitted, where written not with a view to settlement, but in repudiation of the purchase : Ussher v. Simpson, 13 O. W. R. 2S5. The admissions of a guardian are Guardia*. not evidence against an infant who sues by his guardian : Cowling v. Ely, 2 Stark, 36G ; nor the admissions of a prochein amy: Webb v. Smith. Ry, & M. 100. Where a party to the suit directly or impliedly ..\gen» constitutes a third person his agent for the purpose of an admission, the admission so made is evidence: Lloyd v. Wittan, 1 Bsp. ITS. With regard to the admissions of agents in general the rule is this: When it is proved thai A is agent of R, whatever A does or says or writes in the making of a contract as agent of B is admissible in evidence against B, because it is part of the contract which he makes for B, and which therefore binds B ; but it is not admissible merely as the agent's account of what has passed: Langhorn v. AUnutt, 4 Taunt. r.1!>. Thus the declaration of a servant employed to sell a horse is evidence to charge the master with a warranty, if made at the time of sale; but statements made at any other time are not admissible against him: Helyear v. Hatoke, 5 Esp. 72. An admission by a servant in a transaction not relating to the business in which he is employed is not evidence against his master: Garth v. Howard. 8 44 ADMISSIONS. Bing. 451. The letters of an agent to his principal, containing a narrative of past transactions in which he had been employed, are not admissible in evidence against the principal : Kohl v. Jansen, 4 Taunt. 5G.">. Principal In an action against a surety the admissions or declara- andsurety. tions of the principal to whom goods have been sent by the plaintiff at the defendant's request are not evidence against the defendant either as to the receipt of the goods or as to other facts respecting them: Evans v. Beattie, 5 Esp. 2G. In an action against principal and sureties as co-obligors on a collector's bond: Held, that the admissions of the principal were clearly evidence against himself; and it might be strongly argued that whatever is evidence against the principal will also be receivable against his co- defendant in an action on their joint obligation : Municipal Council of Easthope v. Helmer, 7 U. C. C. P. HOG. Held, that the books of the agent or clerk of a public company during his lifetime are not good evidence against his surety, when stud on his bond for a defi- ciency in the agent's accounts: Ferric v. Jones, 8 U. C. R. 192. A principal is not bound by the statements of his agent after the happen- ing of the act sued upon, unless the agent has authority to make such statements: Dunn \. Lee, 4 .M. L. R. 177 (Man.). Presumption as to cause of injury on railway : see McMillan v. Manitoba and North-west- ern Ry. Co., 4 Man. Rep. 220 (Man.). Evidence may be given against Companies companies of admissions made by their directors or agents relating to matters that are in the scope of their authority : National Exchange Company of Glasgow v. Drew, 2 Macq. 103. Before the admissions of an agent can be received the fact of his agency must be proved. This can be done by proving that the agent has acquired credit by acting in that capacity and that he has been recognized by the principal in other instances of a similar character to that in ques- tion : Wat J: ins v. Vince, 2 Stark. 328. After prima facie evidence of Partners, partnership the declaration of one partner is evidence against his co-partner as to partnership business: Nicolls v. Doicling, 1 Stark. 81; though the former is no party to the suit. It is evidence though made after the dissolution of partnership, if made as to a transaction which took place before the dissolution : Wood v. Braddvck, 1 Taunt. 104. In an action against a member of a joint stock company, his admis- sions that he was a partner are Bufficienl to prove his liability without producing the partnership deed : Lee v. MacDonald, 6 O. S. 130. The statement of one partner on his examination in a suit against the firm .-is to transactions which occurred during the partnership, binds all the partners unless they seek by an examination of some of themselves to contradict or qualify the statements of the partner whose evidence they object to : Taylor v. C'ooA;, 11 P. R. 60. The admission of a husband as to the boundaries of land held by him in right of his ADMISSIONS. 45 wife are ool binding upon hie wife after his decease. Dea Barres, J.. dissenting: Dill v. Wilkins, .lames 113 (N. S.). An admission of the Mortgage. execution of the mortgage was held clearly to include the signature to the receipt, and the receipl of the money as there stated: McDonald V. Clark. 30 U. C. R. 307. Held, that a mortgage which contains an acknowledgment of receipt of the mortgage money, but no covenant for repayment of money, does not of itself afford conclusive evidence of a debt so that the mortgagee or his assigns can maintain an action fur its recovery: London Loan Company v. Smyth, 32 U. C. C. P. 530. Any admission of boundary to be binding must be made with a full knowledge of the facts, and this knowledge is a question for the jury: DUl v. Wilkins, James, 113 (N. S.). Admissions by co-trespassers Co-tort- or joint-defendants in actions for tort, are not generally feasors. evidence, except against themselves, unless tin-re be proof of common motive and object and the declarations relate to them: Daniels v. Potter, M. & M. 501. Nor are they evidence in actions ex contractu unless they relate to a mattter in which there is an identity of in- terest: Fox v. Waters, 12 Ad. & E. 43. In general the admissions of a •wife will not affect the husband. Thus, the wife's receipt for money or admission of a trespass is not evidence against the husband: Hall v. Hill, 2 Star. 10T)4: Dean v. White, 7 T. R. 112. But where the Husband wife can be considered the agent of her husband, her admissions may an " w " e - be received as evidence against him: Emerson v. Blondin, 1 Bsp. 142. Her admissions under such circumstances will take a case out of the Statute of Limitations: Palethorp v. Furnish, 2 Esp. 511. In the case of a wife sued with her husband in respect to her separate estate, it would seem that her admissions, though not those of her husband, would be evidence against her. When the counsel in a cause so Counsel, conducts it as to lead to an inference that a certain fact is admitted by him, the jury may take it as proved : Stacey v. Blake, 1 M. & W. 108. riaintiff is not bound by the inadvertent statement or admission of his counsel in opening his case, such statement being promptly re- tracted : Jannette v. Great Western R. W. Co., 4 U. C. C. P. 488. De- fendant may avail himself of a fact which is admitted by the plain- tiff in his opening, and made part of the plaintiffs case, although as the pleadings stood the defendant could not have given evidence of such fact : Wallace v. Vernon, 1 Kerr, o (N. P.). An admission made Solicitor, by the solicitor of one of the parties t<> prevent the necessity of proving a fact on the trial, is sufficient evidence of that fact: Young v. Wright, 1 Camp. 141. Admissions made by the defendant's solicitor when making proposals on behalf of his client respecting the plaintiff's demand (the solicitor refusing to be examined), are evidence against tln> defendant : and proof that they were made by the solicitor on the record will be sufficient to establish bis agency: Gainsford v. Grammar, 2 Camp. '•'. An agreement by the solicitor " to admit on the trial of 4b' ESTOPPEL. this cause "' may be used on a new trial : Elton v. Larkins, 1 M. & Rob. T.»t; : even though the solicitor retracts it before the new trial: Wetherell v. Bird. 7 C. & P. 6. lion. Account The whole of an admission must be taken together; thcre- lf * • fore, where an account rendered by the defendant is produced to establish the plaintiff's demand, il is evidence to prove both the debtor and creditor side of the account: Thomson v. Austen, 2 D. & Ry. 361. But the jury are not bound to believe both sides of the account, there- fore where the plaintiff put in evidence an account rendered by the ndanl in which he had stated a counter-claim, the plaintiff was permitted to disprove the counter-claim and to recover the amount Conversa- admitted: Rose V. Savory, 2 N. C. 145. The assertion of a party in a conversation given in evidence against him of facts in his favour is evidence for him of those facts: Smith v. Blandy, Ry. & M. 257. But a parly cannot examine a witness who is called to prove the con- versation against him as to unconnected statements made by him (the party) on the same occasion, containing distinct assertions of his own rights. In an action for not delivering (he proper quality of oil agreed for: Held, thai defendant's account rendered to the plaintiffs after the delivery for G,000 gallons of rock oil was clearly evidence as an admission by them of what it was they professed to sell: Edgar v. Canada Oil Co., 23 U. C. R. 333. The rendering of an account by the plaintiffs' attorney in this Province (the plaintiffs residing abroad) is not binding finally on the plaintiffs as to the mode of calculation ; and even the plaintiffs themselves incorrectly stating an account may have it legally adjusted at any time before a final settle- ment : McGregor v. Oaulin, 4 U. C. R. 378. The acknowledgment of the correctness of a bank account at the end of a month was held to be at most an acknowledgment of the balance on the assumption that the cheques had been paid to the proper parties: Agriculture Invest- ment Co. v. Federal Hank, 6 A. R. 192. Account. ESTOPPEL. A recital in a deed is evidence against him who executed the deed or any person claiming under him: Com. Dig. Evid. < B. 5) ; and such recital operates as an estoppel in an action founded on I lie deed : Carpenter v. iiuller, 8 M. & W. 212; unless the parties in their pleading voluntarily waive it, and instead of replying the •pel submit the fact recited to the jury: Young v. Ramcock, 7 C. B. .'',10; but in order to create an estoppel the deed must contain a e statement of the fact relied on, e.g., in a grant of land by A that A was seized of the legal estate, a covenant that the grantor had power to grant is insufficient : Gen. Finance v. Liberator, 10 Ch. D. 15. ESTOPPEL. 47 The recitals in a deed may confine the effed of admissions in the same instrument : Lampaon \. Oorke, r> B. & A. 807. QucBre, whether at the present time an educated man to whom sucli a misrepresentation as to the nature of a deed has been made as would support a plea of non est factum may not he estopped from availing himself of that plea against a person who innocently acts on tin' faith of the deed being valid: Howatson \. Webb, 77 I.. .1. Oh. 32, C. A. Affirming (1907) 1 Ch. 537. Where the recital in a deed is used as an admission, it must be Rental, proved strictly, although cancelled: Breton v. Cope, I'eake 44, and a recited instrument is only admitted for so much as is recited. If any other part of it is to In- proved, it must be produced and proved in the usual way: Gillett v. Abbott, 7 Ad. & E. 783. A statement to operate as an estoppel must be clear and unam- biguous. The doctrine of estoppel as applicable to innocent misrepre- sentations discussed and explained: Loir v. Bourcrie, C. A. (1S91 I. '■', Ch. M'. The principle that nobody has any right to represent his goods as the goods of somebody else (Redway v. Hanham (1SS6), A. C. 199, 204), has no limit as regards name of origin of manufacture or sale or otherwise: Saxlechner v. Appolinaris Co. (1S97) 1 Ch. 893. Fraud is necessary to the existence of an estoppel by conduct. Estoppel The person must have been deceived. The party to whom the repre- ^ y conduct sentation is made must have been ignorant of the truth of the matter, and the representation must have been plain and made with the know- ledge of the facts, and not a matter of mere inference or opinion; and certainty is essential to all estoppels: McGee v. Keene, 14 O. R. 226. A recital is not necessarily an estoppel to both parties unless the mutuality appears. If it is the statement of one party only it estops only that party: Stroughill v. Buck, 14 Q. B. 787. There is a class of cases in which a party may be estopped or precluded by his wilful misstatement in pais, from disputing a state of things upon the faith of -which another party has been induced to act or reply to his own prejudice; for instance, a voluntary misstatement of fact by A:Misrepre- such as a misrepresentation of the property in goods, whereby a party. su t f that estoppel must be found on the face of the judgment itself, and cannot be inferred or deduced from the pleadings of the party who lias obtained the judgment where the defendant has said nothing, and has merely allowed the judgment to go by default. An unnecessary averment in a record that is neither pleaded to nor ad- mitted cannot be used as an estoppel : Irish Land Commission v. Ryan (1900), 2 Ir. R. 565. Books of account are not conclusive against the person making them, but may be explained : Raymond v. Cummings, 1 P. & B. 544 (X. B.) Not A person is not legally bound to answer and does not incur any fetter^ rm *> liability by not answering letters addressed to him by persons to whom he stands in no personal relation : British Linen Co. v. Cowan, 8 F. KM. In an action for infringement of a patent the plaintiff obtained judgment for an injunction and enquiry as to damages. The defend- ants subsequently discovered evidence of prior user, on which they obtained an order for the revocation of the patent. Held, that the de- fendants were estopped by the judgment in the action from setting up the invalidity of the patent on the enquiry as to damages : Poulton v. Adjustable Cover and Boiler Block Co., 77 L. J. Ch. 7S0 ; (1908) 2 Ch. 430 ; 99 I.. T. 647 ; 24 T. L. R. 782— C.A. Share- A person who applies for and is allotted shares under an alias -topped from disputing his liability as a shareholder: Coventry's Case (00 L. J. Ch. 186; (1891) 1 Ch. 202), distinguished. Pugh and Shannon's Case (41 L. J. Ch. 580; L. R. 13 Eq. 566), followed. Central Klondyke Gold Mining and Trading Co., In re; Savigny's Case, •> Manson, 336. Latent de- The purchaser of goods, subject to a latent defect, sold with a feet. warranty, is not estopped from claiming for breach of the warranty, when sued for the price, by having received the goods without objec- tion made at the time: Smith v. Archibald, 41 N. S. R. 211. PROOF OF DOCUMENTS. As a general rule before a document can be proved at a trial it must itself be produced in Conrt, but there are PBOOF "l DO( i 'i i: v ~ I B. -i!j certain documents of a public character which either at common law or by statute are provable by copies without production of the original in Court. The various kind copies by whicb original documents may in general be proved may be classed under four heads: viz. l. Exemplifications; '_'. Office Copies; :'>. Examined Copies; 1. Certified Copies, Exemplifications are of two kinds: Under the Great Seal, or under tin' Seal <>f tin- Courl in whicb the record is preserved. An office copy, that is, a copy made by the office having custody of the document, always was in the same Court and in the same cause equivalent to the document of which ii was a copy. Where a copy is made by a public officer specially intrusted to make copies and to deliver them to the parties as part of their title, they are admissible in evidence without proof of having been actually examined. The con- tents of a document of a public nature required by law to be kept may be proved by producing a copy verified by the oath of a witness who has compared it with the original and will swear that it is complete and correct. What are public documents in this sense has never been very accurately defined : but the term seems to include all documents in which the community at large is interested, and which it is desir- able not to remove from their place of deposit: Limcli v. Gierke, 3 Salk. l.~>4. The term would clearly include all records of any Court whatsoever, and all registers of births, deaths, and marriages; registers having reference to shipping and navigation, to trade and public health. The rule applies equally to such public registers kept abroad, as there is a presumption that the foreign authority in whose custody they are would not allow their removal to this country : AJilmlt v. Abbott, •_"•» I.. J. I'. .M. & A. 57. An examined copy of a record or other document must be proved by a witness who has examined it line for line with the original, or who has examined the copy while another person read the original: /.'<.' Private Deeds and Writings 81 Probate and Letters of Administration (See also Wills) 86 Proclamations 88 rammes SO Public Books and Documents SO Registered Instruments 92 Registers of Births, etc 94 \iiii)\vn>. .">1 rAOB Re Judicata) see also Judgment, supra 96 Rules of ( 'ouri and Judge's ( >rders 95 Sentences of Visitors 96 Shipping 96 Ship's Register !»<; Signatures of Judges 97 Statutes 97 Surveyors' Notes L02 Telegrams 103 Wills ( See also Probate i 104 Writs 107 Written Instruments Generally 10? AFFIDAVITS AND DEPOSITIONS. A deposition used by a party to a suit in Chancery for the pur- pose of proving certain facts, is primary evidence of the same facts against the same party in an action by a stranger: Richards v. Morgan, 4 B. & S. 641. But such depositions are not in general admissible without proof of the bill and answer: li. jV. P. 420; unless no bill or answer can be found: Bayhy v. Widic. r of payment, so far as the re ceive m same extends to $25, the Judge on being satisfied of their general piaintiff*a correctness may receive the plaintiff's, defendant's or garnishee's or defend- I Us us evidence, and may also receive as evidence the afEdavil of Qt aoooun t any parly or witness resident out of the county, but may require the party <>r witness to answer written interrogatories upon oath. 120. (1> Affidavits may be sworn before a clerk or deputy clerk fmay ' )t . or before a Justice of the Peace, notary public or commissioner forsworn ... .... before » taking affidavits. derkj etc (2) An affidavit sworn before the agenl of the party on whose Affidavits behalf it was made or before the clerk or partner of such acrent ■worn be- foreagenta shall not be used. 11( , t | Though evidence must generally be given viva voce on oath, and in u8e ■ the very cause in which the witnesses are sworn, yet the testimony of ( f~^ on * witnesses so taken in another cause between the same parties upon the nesses in issue is admitted where their personal attendance cannot be pro- anot " er Cautu. cured. Thus, where a witness was examined in a former action, on the same point, between the same parties, his testimony may be proved if be has since died : B. N. P. 242 ; or if he appears to be kept away by contrivance: //».. '24?,. It seems to be enough if the parties to the two actions are substantially, though uot nominally, the same: IVright v. Tatham, 1 Ad. & E. 18; so if the parties and the title in issue are the same, the evidence is admissible, though the land sought to he re- covered is different : but where the parties are neither the same, nor in privity with each other, such testimony is not admissible, though the title and one of the parties may be the same: Morgan v. Xicoll, L. R. 2 C. P. 117. The admissibility of this evidence turns rather on the right to cross-examine than upon the precise identity, either of the parties or the points in issue in the two proceedings. In some cases such depositions are evidence even inter alios. Thus depositions relat- wl > Pn ing to a question upon which hearsay would be good evidence may be mter alios. read against the person who was no party to the former suit. So a deposition taken in a cause between other parties will be admitted to be read to contradict what the same witness swears at a trial, and it will be evidence in any case against the deponent himself. The statements in a bill of equity under oath are evidence againsl the party filing it in an action at law: Doc dun. Palmer v. Rots, 5 All. 346* (N.B. ). Where a party intends to avail himself of a decree, and not merely to prove an extrinsic collateral fact (as that a decree was made by the Court), he ought regularly to give in evidence the proceedings upon which the decree was founded: Eaton \. Wright et al„ 2 R. & C. P. 514 (N.S.) 56 ANCIENT WRITINGS. ANCIENT WRITINGS. When a deed is thirty years old it proves itself, and no evidence of execution is necessary: B. Y. P., 255; even in cases where attestation is requisite, and it appears that the attesting witness is alive and able to attend it is unnecessary to call him where the instrument is thirty years old: Oldham v. Wolly, 8 B. & C. 22. But where an old deed is offered in evidence without proof of execution, some account ought to be given of its custody : B. \\ /'., 255 ; or it should be shown that pos- ion has accompanied it, at least where it purports to convey some- thing which is the subject matter of possession. Interlineations, etc., in a deed are presumed to have been made before execution: Tatum v. more, 16 Q. B. 745. It was formerly considered that if there was any erasure or interlineation in an old deed it ought to be proved in a regular manner by the witness, if living, or by proof of his hand- writing; and that of the party, if dead, in order to obviate the presumption which otherwise arises against the instrument: B. Y. /'. 255. In documents of remote antiquity it is evidently impossible to supply such proof, and accordingly in such documents defects of this kind are in practice treated only as matter of observation to the jury unless they are of sufficient importance to warrant the judge in excluding them altogether: Evans v. I' vex. 10 Ad. & E. 151. In ejectment the plaintiffs claimed through two deeds over thirty years old, in proof of which they slewed one to have come from the custody of the former owner's agent and the other to have been produced under a written order from the agent: — Held, sufficient proof of their having come from the proper custody without calling the agent who had charge of them: Cook v. Christie, 12 TJ. C. C. P. •"17. Deeds purporting to be upwards of thirty years old were pro- duced from the custody of the solicitors of the plaintiffs, who claimed as trustees, and one of which solicitors was a plaintiff in the action. The plaintiffs claimed under these deeds through several mesne convey- ances. The solicitor-plaintiff had once recovered judgment in eject- ment for the land in question as one of the three trustees: Held, that the deeds were produced from the proper custody to entitle them to be received in evidence as ancient documents: Thompson v. Bennett, 22 U. C. C. P. 393. A memorial more than thirty years old of a lost deed is good evidence upon its bare production, without calling or accounting for the subscribing witness. Semble, this principle extends to any written document, even to letters: Mae/clem v. Turnbull, 5 1 : . < . R. 129. Although an ancient deed, produced from the proper cus- tody, proves itself, this does not preclude a party interested from prov- ing the deed a forgery or invalid on any other ground : Chamberlain v. Torrance, 14 Chy. 181. In general the admissibility of ancient writings, which are incapable of direct proof, depends upon the custody from which they are produced, and from which their genuine- ANCIENT WRITINGS. 57 aesa may be inferred The admissibility of the evidence is for the uination of the Court. Proper custody seems to lie thai within which the document may be reasonably expected to be found, although in strictness it oughl to l>e in another pine. collector's book produced from the possession either of b or or his successor: JuuLt v. Waller, '.'> Gwill. MT. The production of an original mort- gage, which was more than twenty years old, proves itself under It. S. O. 1S97, c. 134, s. 2, s.-s. 1, which makes such a document evidence of the truth of the recitals contained therein until shewn to be un- true: Allan v. McTavish, 28 Chy. 539, 8 A. It. 440. The Ontario Act to simplify titles, known as the Ven- Rights of dors and Purchasers' Act, Ont. Statutes, 1910, c. 58, pro- ve ° dora and pur vides as follows: , l ia contracts 2. In the completion of a contract of sale of land, the rights of » and obligations of vendors and purchasers shall (subject to any .\ l ( IH / t ' Li a stipulation in such contracl to the contrary), be regulated by the etc., 1 following rules: years old, of fact-, (a) Recitals, statements and descriptions of facts, matters andetc. parties contained in statutes, deeds, instruments, or statutory dec-la ra- "^'.' tions twenty years old at the date of the contract, unless and except so far as they are proved to be inaccurate, shall be sufficient evidence of the truth of such facts, matters and descriptions. (b) A registered memorial of a discharged mortgage shall be Memorials sufficient evidence of the mortgage without the production of the /" 18 ", charged mortgage, unless and except so far as such memorial is proved to be m ortg inaccurate; and the vendor shall not be bound to produce the mortgage unless it is in his possession or power. (c) A registered memorial twenty years old, of any other in- Memorials strument, if the memorial purports to be executed by the grantor, ~ji J ''^, _ or in other cases, if possession has been consistent with the registered and of title, shall be sufficient evidence without t lie production of the instru- wn * t > evidi menl to which the memorial relates, unless and except so far as such memorial is proved to be inaccurate: and the vendor shall uol be bound to produce the original instrument unless it is in Ids possession or power; and the memorial shall be presumed to contain all the material contents of the instrument to which it relates. (d) The inability of the vendor to furnish the purchaser with a [liability legal covenant to produce and furnish copies of documents of title, fcorarnish u ii , , , • . , . ... , covenant snail not be an objection to the title if the purchaser will, on the t ,, | (r(H j, u .,. completion of the contract, have an equitable right to the production and . , , furnish of such documents. docu] (3) In an action it shall not he accessary to produce any ,, . , evidence which, by section 2, is dispensed with as between vendor i n AWARDS — BANK BOOKS. and purchaser; and the evidence therein declared to be sufficient as between vendor and pure-baser shall prima facie be sufficient for the purposes of such actions. To the same effeel section 54 of tbe Evidence Act. AWARDS. An award regularly made by an arbitrator to whom matters in difference are referred, is conclusive in an action at law between the parties to the reference, upon all matters inquired into within the sub- mission : Campbell v. Ttccmloiv, 1 Price. 81. Corruption or misconduct of the arbitrator, including the case of an award made ex parte, does not invalidate the award, in any case, at least, in which application might have been successfully made to the Court to set it aside. An award is not evidence as between strangers, nor in a matter in which hearsay is admissible: Evans v. Rees, 10 Ad. & E. 151. So an award against a principal debtor is not evidence in an action against his surety: Ex parte Young, 17 Ch. D. 668. An umpire or single arbitrator occupies a judicial position and is bound so far as practicable to follow legal rules. He is not entitled in the course of an arbitration, when either side objects lo his so doing, himself to call a witness and examine him. Dictum of Lord Esher, M.R., in Goulson v. Disborough (1S94). 2 Q. B. 316, 318, disapproved of: Knock and Zaretzky, In re, 79 L. J. K. B. 363; (1910). 1 K. B. 327; 101 L. T. 801— C. A. BANK HOOKS. Tbe local manager of a branch in this Province of a cnartered bank, when served with a subpoena duces tecum to attend as a witness before the Court or a master upon a reference in an action, is bound, whether the hank is a party or not, to produce the bank books speci- fied in tin 1 subpicna which are in his custody or control, containing an entry relevant to the matters in question in the action, and to give evidence as to such entries ; and inconvenience to the bank is no ground for refusing to produce the books, which prima facie are to be deemed in his custody and control, and their production within the scope of his authority: Re Dwight and Macklem, 15 O. R. 148, ap- proved and followed. Evidence as to a customer's account is not privileged at common law, and section 46 of the Bank Act is no more than a prohibition against a bank voluntarily permitting any examina- tion of customer's accounts save by a director. Discussion of the CONVICTION -CORPORATION BOOKS. 5tf English Bankers' Rooks Evidence Act, is?'.): Hannum \. McRoe, IT P. R. 567, 18 P. U. 185. CONVICTION. It is a general rule that the judgments of nil Courts of competenl jurisdiction are conclusive for the purpose of protecting their judicial officers, acting within the scope of their authority: Basten v. Carevo, 3 B. & C. 653. The record of ;i conviction is inadmissible as evidence of the same fact coming into controversy in a civil suit : Castriqui \. ttnrie, I.. R. 4 II. L. 4.'!4. A plea of guilty on an indictment for assault is evidence by way of admission againsl the defendanl in an action for that assault: K. v. Fontaine Moreau, 11 Q. B. L033; though a verdict of guilty would nol be evidence: /«'. v. Warden, 12 Mod. 337. Semble, that a conviction returned under the statute' to the Quarter Sessions, and filed by the clerk of the peace, becomes a record of the Court, and may be proved by a certified copy: Graham v. Mc Arthur, 25 U. C. It. 478. Proof of quashing of conviction by the Court of Queen's Bench — a rule of Court was pul in, in which the offence, the name of the complainant, and of the magistrate, were mentioned : Held, sufficient, without further identifying the conviction mentioned in the rule with that on which the warrant issued, for the Court would not presume another conviction similar in all these respects: Brass v. Huber, 15 Q. C. R. 625. Section 19 of the Ontario Evidence Act is as follows: 1!>. til A witness may be asked whether he has been convicted Proof of of any crime, and upon bring so asked, if he either denies the fact previoue , •-,•,,-/- conviction or refuses to answer, the conviction may be proved: ami a certificate f a w jfc_ containing the substance and effect only (omitting the formal part) ness may Of tle> charge and of the conviction, purporting to be signed by the j*g denies officer having the custody of the records of the Court at which the it, el offender was convicted, or by the deputy of the officer, shall upon proof of the identity of the witness as such convict, be sufficient evidence of the conviction, without proof of the signature or of the official character of the person appearing to have signed the certificate. /r»v „ , , *... -, ,11 .Certificate (J) I'or such certificate a tee of $J and qo more may be demanded () f conv ; c . or taken. feefor CORPORATION ROOKS. The official acts of a municipal corporation registered in books may be proved by the production of them: Thetford Case, T_' Vin. Ab. 90. To make the books evidence it must appear that they come from the proper custody. When the entries in the books are admissible as being of a public nature, examined copies are evidence: Brocas v. London, 60 I'OIU'OKATION DI.KDS. Mayor of, 1 Stra. 307. An erasure on the entry in the minute book of a corporation must be presumed to have been made before the ent'y was signed: Steevens Hasp. v. Dyer, 15 Ir. C. R. 405. Public official acts of the municipal corporation registered in other books, regularly kept and entered by the proper officers, may and ought to be proved by the books themselves, which are evidence of them, even against strangers: It. v. Mother sell, 1 Stra. 93. But the books of a corpora- tion, whether public or private, arc not admissible in their own favour as to matters of a private nature ; as to establish a claim to a toll : Bret v. Beetles, M. & M. 419. Defendant's secretary, called by the plaintiffs, produced copies of the proceedings of defendant's London hoard, which he said had been sent by them to the board in Canada as such copies, but which he could not prove otherwise to be so: Held, clearly sufficient: Commercial Bank v. Great Western R. W. Co., 22 fj. C. It. 233. The defendants were sued on a by-law alleged to have been made by them, enacting that all persons who at the time of sub- scribing should pay up their stock in full should be entitled to interest on the amount of their investment. The defendants' book of by-laws was produced, in which this by-law was written out, but not sealed, and in the margin was written " expunged," signed with the presi- dent's initials : Held, that such proof, even without the entry in the margin, would have been insufficient to shew a by-law : McDonell v. Ontario, Simcoe and Huron R. W. Co., 11 U. C. R. 267. CORPORATION DEEDS. Prfsump- kion of nx mention. Whore a witness stated that he had good opportunities, which he described, of observing and knowing the seal of a corporation, and that he believed the seal to be their seal, both from the impression itself and from the signature of the party attached to it, with which he was acquainted : Held, sufficient to go to a jury to authenticate the seal : Doe d. King's College v. Kennedy, 5 TJ. C. R. 577. Fixing the common seal is tantamount to delivery. The seal must be proved by some one who knows it, but it is not necessary to call a witness who saw it affixed: Aloises v. Thornton, 8 T. R. 307. If the seal of a corporation is attached to an instrument it will be presumed as against them to have been regularly attached, and it lies on them to give strict proof to the contrary so as to exclude such presumption : Clark v. Imp. Gas Co., 4 B. & Ad. 315. The presumption may, how- ever, be rebutted by evidence: Anon., 12 Mod. 423. A person who manages the affairs of a trading corporation must of necessity have power to use the corporation seal for those acts he is authorized to perform : Ex parte Contract Corp., L. R. 3 Ch. D. 105. The name of a corporation as stated in a deed must be the same in substance with tho trn» name, but need not be the same in words or syllables: R. v. CORPORATION DEEDS. 61 Haughley, 4 B. vV Ail. 850. The seal <>r a corporation having been proved: Held, thai the production of a document within the powers oi the corporation with the Beal attached, is sufficient prima facte evi- dence of its proper execution: Woodhill v. Sullivan, 11 I . < '. C. I'. 286; Fell v. South, 24 U. ('. It. L96. T<> prove payment of taxi is no1 necessary to shew thai the collector was duly appointed; it is sufficient to show that he acted and was acknowledged as such : Smith v. Redford, 1:2 Chy. 31ti. Some of the parties executing a deed were corporate bodies and the witnessing clause was ex- pressed: "In witness whereof tin- said parties hereto have hereunto set their hands and seals," &c, anil the seals were all simple wafer seals: Held, sufficient, in the absence of evidence shewing these not to he the proper corporate seals: Ontario Salt Co. v. Merchants Salt Co., 18 Chy. 551. A corporation is liable on an executed contract Liability for the performance of work within the purposes for which it was on ■ uted created, which it has adopted and of which it has received the contract. benefit, though the contract was qoI executed under its corporate seal, nnd this applies to municipal as well as other corporations: Bernardin v. North Dufferin, 10 S. < '. K. 581. If a person acts notoriously as the officer of a corporation, and is recognized by it as such officer, a regular appointment will he presumed, and his acts will bind the corporation, although no written proof is or can be adduced of his appointment : Hamilton School Trusters v. YY.7. 2s Chy. ION. Where work done for a corporation is such as was evidently contemplated by their charter, and they have accepted and availed themselves of it, they cannot refuse to pay on the ground that there was no contract under seal: Held, therefore, that the Hamilton and Gore Mechanics' Institute were liable to the plaintiff for services rendered by him i - an architect, upon a verbal agreement, in preparing plans and superin- tending the erection of a hall for their accommodation: Clark \. Hamilton and Cure Mechanics' Institute, 12 U. C. R. ITS. The objection that a corporation cannot be bound unless under the corpor- ate seal, is applicable only to actions at law: Brewster V. Canada C 4 Chy. 443. Where the directors of a company had power to appoint officers and agents, and dismiss them at pleasure: Held, that their appointment of a solicitor need not be under the corporate seal : Clarke v. Union Fire Ins. Co.; Caston's Case. 10 P. R. 339. The plaintiff being in doubt as to which company was liable, there having been a separate contract with each, joined both as defendants: Held, that the plaintiff had a right to do so: see Harvey v. (hand Trunk I'. W. Co., 7 A. R. 71. ~>. A corporation may be liable for false imprisonment tinder an order of its agent acting within the scope of his authority: l.yden v. McOee, 16 O. R. lit.". An action will lie at the suit of an incorporated trading company, to recover damages for a libel calcu- n . . corpora lated to injure their reputation in the way of th-i" business: South tion 52 DEEDS — FOREIGN LAW. Hetton (.'<>til Co. v. North-Eastern News Association (1894), 1 Q. B. 133, followed. Journal Printing Co. v. MacLean, 25 O. R. 509, ap- proved : Journal Printing Co. v. Mac-Lean, 23 A. R. 324. Review of the casts as to the liability of a corporation by parol both at law and in equity: Dart* v. Canada Farmers' Mutual Insurance Co., 39 U. C. R. Contraota 452. Contracts not under the corporate seal made with trading com- ■erformed i' a "' ,s relating to purposes for which they are incorporated, if partly performed and of such a nature as would induce the Court to decree specific performance if made between ordinary individuals will be enforced against them : Ontario and Western Lumber Co. V. Citizens' Telephone and Electric Co., 16 C. L. T. Occ. X. 118. DEEDS. See Pkivate Deeds and Writings, Page 81. FOREIGN LAW. Courts cannot take cognizance of the laws of foreign states; they must be proved as facts: Mostyn v. Fabrigas, Cowp. 174. In an appeal from the Colonial Court the judicial committee of the Privy Council must take judicial cognizance of the laws of the colony. The written law of a foreign state is properly receivable only from oral evidence, although the witness may refresh his memory from the written law: Sussex Peerage Case, 11 CI. & F. 114. Foreign law should be proved by witness - of < ompetent skill. The evidence of an English lawyer v, ho had studied the foreign law is not admissible: //( re Bonelli, 1 P. D. 69. The competency of the witness to prove foreign law is a ques- tion for the Court, and the only general rule is that the witness must, from his profession or business, have had means of becoming acquainted with that branch of law which he is called to prove: Yanderdonckt V. 'I'liellusson, 8 C. B. SI 2. The written law of a foreign country may be proved by a skilled witness without the production of the law itself, but where it can be produced, it is more satisfactory than verbal testi- mony : Osgood v. Hatch, Mich. T. 1^712 (N.B.). A witness must state I prof -ional or practical on which his knowledge rests to qualify him to speak of the law of a foreign stale. It is not enough for such a witness to say that he is familiar with the foreign law with- out stating the ground on which his knowledge rests. AVhere a witness had resided in this Province, as American Consul, for six years, during which time certain currency laws were passed in the United States, of which his only knowledge was derived from having them trans- mitted to him :--IIrld, thai this was not a suflieient qualification in the absence of an assertion thai his official duties required him to himself with the currency laws of his country: McKenzie \. FOREIGN LAW. Gordon, 1 N. S. I>. 1~>.", (N.S.). A president of a bank in a foreign country, whose business it is to deal with money therein, though not a lawyer, is an admissible witness to prove the law of that country as to what is money there: 'Hind National Bank of Chicago v. ('osby, 43 U. C. R. 58. Where the opinions of experts on foreign law are conflicting, tin' Court will examine for itself the decisions and text hooks of the foreign country, in order to arrive at a satisfactory con- clusion: Rice v. CHtnn, 4 O. It. 579. Where the evidence of persona skilled in the foreign law is conflicting the Court may examine for itself the decisions of the foreign Court and text writers in order to arrive at a conclusion of the foreign question of the foreign law: f.rnitt v. Township of Raleigh, 1 (). YV. N. 718; O'Reilly v. O'Reilly, 1 O. W. A. 742. Failing information, foreign law must be pre- sumed to agree with law of this Province. Presumption of foreign law. See Re O'Brien, 3 O. R. 326: Langdon v. Robertson, 13 O. R. 4!»7. The lex fori must be presumed to be the law governing a contract unless the lex loci be proved to be different: Canadian Fire Insurance Co. v. Robinson. 31 S. < '. R. 488. Defendants. Toronto merchants, engaged plaintiffs, Chicago brokers, to buy and sell grain in Chicago, on margin, which the latter did, advancing them money. for which they sued. Defendants having refused to settle for losses sustained: Held, that assuming the State law to be that if the con- tract was to deal in such a way that only the differences in prices should he settled according to the rise and fall of the market, anil no grain be either delivered or accepted, the contract would be a gambling contract and illegal, it lay upon defendants to establish clearly that such was the character of the dealing, and this defence, not having been clearly proved, judgment was u'iven for the plaintiffs: I'iii- v. (limn, 4 O. R. .~>7'.>. It is not desirable even with the consent of parties that the Court should construe the law of a foreign country instead of the fact of what is the law there being proved by lawyers of such foreign country : Meagher v. ffltna Insurance Co., 20 Chy. 354. Evidence of the custom of brokers at Toledo, U.S., the contract being made in Ontario, was: — Held, to have been properly rejected: Wil- liams v. Corby, 5 A. It. 626, 7 S. C. R. -I7i>. An action will not lie in this Province by a judgment creditor to set aside as fraudulent a conveyance made by his debtor of lands situate in a foreign country when the creditor has no remedy there, although all the parties reside in this Province. Although the Court will interfere where the parties are within the jurisdiction in some cases where fraud exists in respect to specific property out of the jurisdiction, by ordering conveyam he made to the person entitled, it will not do so when the relief sought is to subject the property to the exigencies of execution which it is powerless to enforce: Hums v. Davidson, 21 0. 11. 547. The Courts in this Province have no jurisdiction to entertain an action for determin- 63 64 FOBEIGN LAW. Lng the title to lands in the North-West Territories, even though the parties be resident here: Ros.s v. Ross, 2') O. R. 4.°.: — Held, that the Court had no jurisdiction to compel foreigners to come here with their claim nod litigate it, the debt in question having no existence here: Credits Gerundeuse v. Van Weede, 12 Q. B. D. 171, distinguished: Re Ben field ami Stevens, 17 P. R. 339. A foreign legislature can make no law creating a lion on real estate in Canada, and any contract founded on such a consideration is void ab initio: Genesee Mutual fus. <"<>. v. Westman, 8 V. C. R. 4S7. After judgment at the trial, but before the argument in banc, the defendants put in the report of a case bearing upon the question decided in the Supreme Court of the United States, verified by affidavit: — Held, admissible: Rice v. Gunn, 4 O. R. .">7:». A contract for the sale of goods to plaintiff at a certain price. payable in Toronto, was made by defendant at Chicago through his agent there, the goods to be shipped by the G. T. R. from Toronto. No sold note was signed by the broker until after action brought for the non-delivery; but it was proved that s. 17 of the Statute of Frauds was not in force in Illinois: — Held, that the contract being valid where it was made could be enforced here though not in writing: Green v. Lewis, 2(5 IT. C. R. 618. The rights of parties resident in a foreign country and there making a contract in regard to goods in (ntario, so far as the formalities of registration or change of posses- sion arc concerned, are governed by the law of Ontario: River tft'ire Co. v. Sill, 12 O. R. 557, followed ; Marthinson v. Patterson, 20 O. R. 12." ; 19 A. R. ioS. A Canadian Court cannot entertain an action to set aside a mortgage on foreign lands on the ground that it was taken in pursuance of a fraudulent scheme to defraud creditors of the original owner through whom the mortgagee claimed title, it not being alleged in the action, and the Court not beng able to assume that the law of the foreign country in which the lands were situate ■ orresponded to the statutory law of the province in which the action was brought: Burns v. Davidson, 21 O. R. 547, ut supra, followed: Purdom v. Pavey cf- Co., 26 S. C. R. 412. A judgment of a foreign ' ourt having the force of res judicata in the foreign country has the like force in Canada. Unless prevented by rules of pleading a foreign judgment can be made available to bar a domestic action begun before such judgment was obtained: Law v. Hanson. 25 S. C. R. 69. When 1 a note is payable at a particular place, but does not contain the " and not otherwise or elsewhere," the lex loci contractus, and not the lex lo iecia] circumstances, that the common law prevails in that foreign Stal ■: Pink v. Perlin & Co.. 40 X. S. B. 260. In the acquisition of a new domicil more is required than a mere change of residence; there must be proved a fixed intention to renounce birthrighl in the place of original domicil and to adopt the political and municipal statu* involved by permanent residence of choice elsewhere than in the domicil of origin: Euntly (Marchioness) v. Qaskell, (No. 2), 7.", I.. .1. p. c. i ; (1906) A. C. 56; 94 L. T. 33; 22 T. L. I!. 144. Foreign judgment — action on; defence <>f no juris- diction, the defendants not domiciled in Province where judgment ob- tained: North v. Fisher, 6 0. B. 206, referred to; Brennan v. Cam 1 O. \Y. \. 430. The English Courts will not enforce any agreement me.de in a foreign country which lias been obtained by a coercion. physical or moral, although such agreement was to lie performed 66 FOREIGN LAW. in the foreign country and may be valid by the law of that country: naufman v. Gerson, 73 L. J. K. B. 320; (1904) 1 K. B. 591; 90 L. T. 608; 52 W. B. 420; 20 T. L. R. 277. A contract between parties resident in different jurisdictions is to be construed, in respect of its national character, by the intention expressed therein : Spurrier V. La Cloche, 71 J,. J. T. C. 101; (1902), A. C. 446; 86 L. T. 031 ; 15 W. R. 1. Money lent for the purpose of gambling iu a country where the games in question are not illegal may be re- red in the Courts of this country: Quarrier v. Colston. 1 Phillips 147. followed; Saxby v. Fulton, 78 L. J. K. B. 781: (1909), 2 K. B. 208; 53 S. J. ::7!> : 2.1 T. L. R. 446— C.A. Goods in Ontario at the time of execution of chattel mortgage are subject to R. S. O. c. 125, although the parties are at the time domiciled in a foreign country: Marthinson v. Patterson, 20 O. R. 720. In actions in rem by masters of foreign ships for wages and disbursements, questions of lien and priorities are to be decided by the lex fori. Section 107 of the Merchant Shipping Act, 1894, giving remedies to a master for his wages, disbursements and liabilities, applies to masters of foreign ships notwithstanding the provisions of section 260: The Milford (Sw. 362), discussed and followed. 77k- Tagus, 72 I.. J. P. 4; (1903). P. 44: 87 L. T. 598: 9 Asp. M. C. Sale of The sale on trial of goods ordered from a vendor abroad is governed in the absence of special agreement, by the law of the province, and not by that of the country of the vendor. Therefore, when the article is lost during the trial and before manifestation of the will to buy, the loss falls on the vendor: Laurin v. Ginn, Q. I J, 18 K. B. 116. Held, following Bonin v. Rooertson, 2 Terr. L. B. 21, that the laws in force where the property is situate and the parties reside at the time a contract for sale is made must govern; and therefore where under the laws of Manitoba, goods were delivered to purchaser upon terms that no property therein was to pass until such goods were fully paid for, which agreement was valid and enforceable in Manitoba without registration: — Held, that the seller might claim such goods when removed into Saskatchewan as against execution creditors and other persons claiming such goods, notwithstanding that no copy of such agreement had been registered ;is required by c. 44 of the Consolidated Ordinances: Sawyer and Massey Co. v. Boyee, 1 Sask. L. R. 230 : S W. L. It. S34. Penal li The Courts of this country will not indirectly enforce the penal laws of a forei.irn country by entertaining an action founded on a judgment obtained in that foreign country in a penal action: Hunt- ington v. Attrill, 18 A. R. 136. A creditor recovered judgment in Manitoba, and had by virtue of an Act of that province a lien on HISTORIES— IDE] . the lands of the judgment debtoi there. As jud reditot he brought an action in Ontario againsl the debtor's mortgagees to re- deem lands in Manitoba as being subjecl to the lien. The Court dis- i the action as nol being within its jurisdiction: Henderson \. Bank of 1 hi mi lion, 20 A. K. 646. The validity <>f a bequesl determined by law of testator's domicil which, in the absence of evidence to the contrary, was pn be the same as the law of Ontario: Qraham v. Canandaigua, 24 < >. R. 547. Where all panics reside in < tularin an action can be main- tained here to have a mo I ■ foreign land declared a trustee for the debtor of the moneys secured by the mortgage: Pavey v. Davidson, 16 C. L. T. 41. In order to found an action in this country for a . "Tori com- mitted abroad two conditions are necessary. First, the act complained ' of must be of such a character as to be actionable if committed in' this country; and. secondly, it must he without justification by the law of the place where it was committed. The seizure by a British naval officer of British goods on a Brit- ish ship in the territorial waters of a foreign sovereign, effected under the authority and by the direction of that sovereign, cannot be made the subject of legal proceedings in this country: Carr v. J'racis 'limes & Co.. 71 L. J. K. P.. 'M\ ; ( 1902), A. ( '. 176; S5 L. T. 144; 50 YV. It. 257. HISTORIES. A general history may be given in evidence to prove a matter relating to the kingdom in general. B. X. P. 24S. Historical evi- dence of this kind is only to be used in proof of a matter concerning the Government: Cockman v. Mather. 1 Bain. 1!. Ii seems indeed only to ii" used to refresh the memory of the jury on notorious facts which require no evidence at all. Thus if has been held that counsel may in addressing a jury refer generally to matters of history, whether iastical or political, and cite the language of writers or s- men by way of illustration or explanation : but they are not at liberty to cite specific canons or foreign treaties or the printed works in use among certain communities, and purporting to represent their doc- trines so as to fix a party to the suit with those doctrines, and to persuade the jury to act upon such imputation, unless such docui be proved by regular evidence and brought home to the party by proof of his personal adoption of them: Darby v. Ouseley, 1 Tl. & X. 1. IDENTITY. A description in a chattel mortgage of after acquired goods as "all other ready-made clothing, tweeds, trimmings, gents' furnishings. IDENTITY . furniture and fixtures, and personal properly, which shall at any time during the currency of this mortgage be brought in or upon the said premises or in or upon any other premises in which the said prying on business" is sufficient and binds goods of the kinds mentioned in premises to which the mortgagor moves after making the mortgage: Horsfall v. Boisseau, 21 A. It. ('>'*»:;. Description of goods mortgaged — N. W. Tor. Ord. No. 5, of 1881. Section G of the Ordinance provides: " All the instruments mentioned in this Ordinance, whether for the mortgage or sale of goods and the same may be readily and easily known and distinguished." els, shall contain such sufficient and full description thereof that The description in a chattel mortgage was: "All and singular the goods, chattels, stock-in-trade, fixtures and store buildings of the mort- gagors used in or pertaining to their business as general merchants, said stock-in-trade consisting of a full stock of general merchandise, now being in the store of said mortgagors on the north half of section 6, township 19, range 28, west of the 4th principal meridian." Held, that the description was sufficient: McOall v. Wolff (13 Can. S. C. R. 130), distinguished: Hovey v. Whiting (14 Can. S. C. R. -115), followed: Thomson v. Quirk, IS S. C. R. 695. In a chattel mort- gage the goods were described as ''all and singular the goods, chat- Eurniture and household stuff hereinafter particularly mentioned and described in the schedule hereunto annexed, A., all of which goods and chattels are now situate" (description of the premises), without stating that such goods were all the goods on such prem- ■ Held, thai the description of (lie goods was not a full and sufficient description within the meaning of C. M. S.. r. 40, s. 5, and the mortgage was void against execution creditors: McCall v. Wolff, ]:', S. <'. It. L30. Parol evidence to explain: Melady v. Michaud, Q. R, .",! S. C. 1. Proof of identity of chattel: See Xtcvens v Barfoot, O. R. 01)2: i:; A. It. 366. Plaintiff claimed a cow under a bill of :rom one M., by which M. conveyed to the plaintiff "one red cow, four years old. valued at $21": — Held, that the description was insufficient to pass the property in the cow as it did not in any way distinguish the cow so that she could be identified: Hughan v. Mc- Collum, 20 X. S. It. (8 V.. & G.) 202: 8 C. L. T. 381 (N.S.). The mortgage was not void as to the after-acquired goods because of the ■••liiy and vagueness of (he description: Lazarus v. \ndradc, 5 c. p. [>.. followed; Imperial Brewers Limited v. Gelin, IS Man. :. i: 2 3, 9 W. '.. It. <.)>.). The test to be applied is that laid down in Luekin v. Hamlyn (21 I;. T. P>or>), where it is said: "The word 'occupation ' in this Act: means the business in which a man is usually o the knowledge of his neighbours. The intention is that such n description should be given that if inquiry be made in the place [DENTITT. 69 where the person resides he may be easily identified: Veverson v. Seymour, !>7 I,. T. 788. Where in a grant or devise the description of parcels is made ap j ,, of more than one, and one par) is true and the other false, i h«n iftionin the pari which is true describes the subject with sufficient legal cer- tainty, the untrue pari will be rejected as falsa demonstrate and will not vitiate the grant or devise. The doctrine is not u, be confined to cases where the first part of the description is true, and the latter untrue, it being immaterial in what part of the description the d( tmonstratio occurs: Cowan \. Truefitt (1899), - Ch. 309. Where in the operative part of a deed general words follow enumeration of particular things, those words are prima fade to be considered as having (heir natural and larger meaning, and are not to be restricted to things ejusdem generis with (hose enumerated unless there is something which shews the intention so to restrict them: Anderson v. Anderson, C. A. (1895), 1 Q. B. 749. Where land was described in a deed as consisting of certain lots, excepting thereout certain por! ions, and it was objected that the deed was void for uncertainty, the excepted portions not being sufficiently described: — -Held, that evidence was properly admitted to shew what these portions were: Lloyd v. Henderson, 25 T T . ('. C. I'. '27)',',. Where land is so described by its local abutments as to enable any one to find it with certainty, it is unnecessary to state further in what lot in the township the land lies. If. therefore, the land so described is stated to be part of lot 42, when it is in reality part of lot 45, the deed is nevertheless d: Dor (/. Notman V. McDonald. .", T\ C. R. 321. If i convey.-, nee contains an adequate and sufficient definition with of what was intended to pass by it any erroneous tent as to dimensions or quantity, or any inaccuracy in the plan, will not vitiate the description or have any effect : Thompson v. Hickman, 76 L. J. Ch. 254; (1907) 1 Ch. 550; 0C> L. T. 454; 23 T. T.. R. It is not sufficient proof of the identity of a party served out of the jurisdiction that the deponent to the affidavit of service swears that he served " the above named defendant." The affidavit should shew the means of knowledge: Armour v. Robertson, 1 Ch. Ch. 2.~>2. Where there is nothing to raise a doubt as to the identity of the as through whom .- es it will be presumed from the identity of (he names: Nicholson v. Burkholder, 21 U. C. R. 108. There was no proof of identity of the different grantors an.' in the deeds shewing the chain of title except the simila of n -nes, and the possession of the patent and deed- : -Held, (dearly sufficient: Gallivan v. O'Donnell, 36 U. C. R. 250. The admission of a person served with an office copy of the bill that he was the proper party : in a bill is not sufficient proof of the identity of (he person [NDICTMENT — INQUISITIONS — JUDGMENTS. Berved with the defendant : Stilson v. Kennedy, 1 Ch. Oh. 230, 237 note. In an action by the indorsee of a promissory note against the maker, the handwriting of the attesting witness to the maker's sig- nature, together with the handwriting of the indorser, were proved, but no evidence was given to identify the defendant with the person named in the note, and the Judge at the trial for want of such evi- dence nonsuited the plaintiff on motion for a new trial : — Held, that the evidence given at the trial was sufficient, and accordingly a new trial was granted: McCullough v. Shields, 3 Kerr 391 (N.B.). [NDICTMENT. In an action for money had and received: — Held, that an in- dictment upon which the defendant had been convicted of em- bezzlement, but acquitted on a charge of larceny, was admissible as proof of that fact: Maedonald v. Ketchum, 7 TT. C. C. P. 484. INQUISITIONS When the return to an inquisition is given in evidence it is in general necessary to shew that the enquiry was made under pro- per authority. Inquisitions taken ex officio by officers acting under a general commission or appointment as escheators, etc., seem to be admissible on principle without further evidence of authority than that they were acting as such officers. Although an inquisi- tion taken before a coroner super visum corporis was formerly con- sidered conclusive evidence of the fact found by it against the executors or administrators of the deceased, it is now held that every- thing done under it is traversable: Garnett v. Ferrand, 6 B. & C. 611. An inquisition finding lunacy is evidence of it against third persons though not conclusive; Frank v. Frank, 2 M. & R. 314. An inqui- sition by a sheriff's jury to ascertain the value of property for the information of the sheriff is not admissible evidence of property, even against the sheriff: Latkow v Famer, 2 H. B. C. 437 : nor is it evi- dence in his favour: Glossop v. Pole, 3 M. & S. 175. JUDGMENTS. The judgment of a Court of concurrent jurisdiction directly upon a point is, as a defence, a bar, and as evidence conclusive npon the same matter between the same parties, but it is also a general principle thai a transaction between two parties in a judi- cial proceeding ought not to bind a third, for it would be unjust to bind any person who could not be admitted to make a defence, or to examin' or to appeal from a judgment which he might think erroneous. Therefore (],,. depositions of witnesses in another .ii DGMENTS. 71 cause in proof of a fact; the verdict of a jury finding the fact; and the judgment of the Court on facta bo found, although evidence against the parties and all claiming under them, are nol in general to be used to the prejudice of atrangers. A judgment is conclusive (i.e., an estoppel i if pleaded, where there is an opportunity of pleading it; but where there is no Buch opportunity, then it is conclusive as evidence; but it" the party forbears to rely upon an estoppel when he may plead it. he is taken to waive tl stoppel and to leave the prior judgment as evidence only for the jury. Where the actual grounds of the judgmenl can be dearly discovered from the judgment itself it is conclusive as to the grounds as well as with reference to the actual matter decided: Alison's Case, L. R. 9 Ch. 1, 25. The pro- ceedings of a ('our, of record can be proved only by the record thereof; the record may be made up at any time when it becomes sary to put it in evidence: Kemp v. Neville, 10 < '. B. X. S. 523. Judgments may be proved at nisi prius by producing the original roll, ns well as by exemplification; but the clerk should not produce such roll without proper authority: Paterson v. Todd. 24 U. C. R. 296; Sloan v. Whalen, 15 I*. C. C. P. 319. In order to bind a party he must have sued or been sued in the same character in both suits. In considering the effect of judgments the Court will look to the real and not only to the nominal parties to the suit: Kennersley v. Orpe. 2 Doug, r. 17. Whore a party could not have been prejudiced by a verdict if it had gone against him, a verdict in his favor in the former action will not be available as evidence for him even against one who was a party to it: Wenman v. McEenzie, 5 E. & B. 447. There are several exceptions to the general rule that no one shall Strangers, be bound or prejudiced by judgments to which he is not party or lh)UU(1 privy. They are admissible where they relate to public matters, thus, a public right of way: Reed v. Jackson, 1 East. 3;~>r>. Where the judgment is produced merely for the purpose of proving the fact of such recovery of judgment, and nor with a view to proof of the truth of the facts upon which the judgment was founded, it may be evi- dence for or againsl a stranger. Thus a verdict against a master in an action for the negligen >f bis servant is evidence in an action by the master againsl the servant to prove the amount of damages though not of the fact of the injury: Oreene v. New River Co., 1 T. R. 590. A judgment between the same parties and upon the same cause of action is conclusive, although the form of action is different. Thus a verdict in trover was a bar in an action for money had and re- ceived, brought for the value of the same goods: Hitchin v. Camp- bell. 2 W. BL 827. It is a general rule that a judgment is only evidence where it is direct upon the point which it is offered in evi- dence to prove. It has been denied to be evidence of any matter which came collaterally in question, or of any matter incidentally JUDGMENTS. Collateral matters. llct 'udicata. cognizable, or of any matter to be inferred by argument from the judgment Any fact on which the judgment of the Court must have been based cannot be considered as merely collateral: A*, v. Harting- ton, 4 B. & B. ISO. There are various legal proceedings not being suits inter partes merely which bind all mankind until set aside in due course. The most remarkable examples occur in proceedings brought on the revenue side of the Court of Exchequer in rem, by revenue officers ; iu the Courts of Admiralty, in the Courts for Pro- and Divorce, and iu the Spiritual Conns. A judgment in rem of a competent foreign tribunal is conclusive, and cannot, in the absence of fraud, be questioned in our Courts: Castrique v. Imrie, 8 C. B. M. S. 4U."i. The plea of res judicata is good against a party who has been in any way represented iu a former suit deciding the same matter in controversy: Dingwall v. McBean, 30 S. C. R. 441. An exception based upon res- judicata is well founded when the plain- tiff sued for the same relief, for the same cause, in a new action against the same defendant as principal, after the dismissal of a former action against him as surety: Sutherland v. Lafontaine, Q. k. 31 S. C. 421. Judgments of Admiralty Courts. Upon questions of prize tiie Court of Admiralty has exclusive jurisdiction: therefore a sen- ■ <>f condemnation in that Court is conclusive, and being a pro- ceeding /// rem it binds all the world. The sentence of a foreign Court of Admiralty is also, by the comity of nations, held to be con- clusive upon the same questiou arising in this country: Bolton v. Gladstone, 5 East 155; but the sentence of a Court of Admiralty, sitting in contravention of the law of nations, will not be recognized in our Courts: Havelock v. Bockwood, 8 T. E. 208. Where there is some ambiguity in the sentence of a foreign Court of Admiralty, so that the precise ground of the determination cannot be collected, the ts here may examine the grounds on which it proceeded: Lothian v. Henderson, ."» I'.. & P. 499. It is the rule of the Admiralty as it is of all other Curts, that a party can only recover .secundum allegata et probata: The Alma, 1 Old. 7S9 (N.R.). Judgments of Foreign Courts. All judgments are foreign judgments which are given by Courts whose jurisdiction does not id to the territories governed by our laws: McFarlane v. Derbi- shire, 8 U. C. R. 12. A foreign judgment is prima facie a debt, and conclusive on its merits, and as such is assignable under 35 Viet. c. 12 (O.), so as to enable the assignee to sue thereon, in his own : Fowler v. Vail, 27 U. C. C. i'. 417. An action will not lie upon a decree or judgment of a foreign Court which is not final in , but merely to do some act, as to save a party harmless and indemnified: Gauthier v. Routh, 6 O. S. 602. This action was JUDGMENTS. broughl i" recover the amount <>f ;> judgmenl of an Ontario Court against the defendants in respect of notes given for an engine. T nulls contained a provision that, in case of default, the makers, who were residents <>f Manitoba, might be sued in Ontario upon them. Quaere, whether such a consent i<> the jurisdiction of a foreign Court would not be recognized by international as well as by municipal law: Vopin v. Adamson, L. Et. 9 Ex. 345. As, however, tne defendants succeeded upon a defence to 1 1 1 « • original cause of action, which they were entitled to raise in this action, on the authority of Hickey v. uegresloy, 15 Man. L. II. 304, it became unnecessary to decide this question: New Hamburg Manufacturing Co. v. Shields, Hi Man. L. R. -I:!. A foreign judgment is not a merger <>f the original cause of action, which may. notwithstanding such judgment, be sued on in this Province: TreveVyan v. Myers, 2<; O. It. 430. The judgment of a foreign Court of competent jurisdiction de- ciding a questi :ognizable by the law of the country is conclusive when C(jn . here if the same question arise incidentally between the same parties, cluBive. and the sentence be conclusive by the law of the foreign country: 2 Smith's L. C, Sth ed., 839. in an action broughl in this country upon the judgment of a foreign Court having jurisdiction over the parties and subject matter of the suit, such judgment must now be taken as conclusive and binding on both parties so as to preclude their contesting the merits or propriety of the decision: Australasia, When nut Bank of. v. Nias, 16 Q. B. 717. But if it appears on the face of (ho'^'ding. foreign proceedings, or by extrinsic proof, that the judgment is : natural justice, as that the defendant has never been sum- moned (in which cases the Court could have no jurisdiction), the Courts here will not give effect to it : Varan v. Stewart, 1 Stark 525. So. where the judgment has been obtained by fraud: Aboitloff V. Op- imer, 1<> Q. T> .. I>. 295. So. where the Judges in the foreign were interested parties: Price v. Dewhurst, 8 Sim. 279. In order to render the judgment binding in this country it must appear that it was final and conclusive in the foreign Court in which it was given: Plummer v. Woodburn, 4 B. & C. <'>2-~ : thai the cause of action was exactly tlte same; Callander v. Dittrich, 4 M. & Gr. 68; and that the parties were within or subject to its jurisdiction: Novelli v. Rossi, 2 I'.. & Ad. 7."i7. The judgmen conclusive must be on the merits: The J>9; 47 A\ . R. 354. .11 DGMEN I B. 75 In an action founded upon a Foreign judgment the defendant is ,ii liberty to plead and to prove, if he can, that the judgment was recovered by fraud and deception practised upon the Court: Fraud. Oodd \. I)r delay; and a motion to strike ou( defences was refused. Gault v. McNaVb, 1 Man. L. R. 35, distinguished. Meyers v. Prittie, 1 Man. L. R. 27, not followed. British TAnen Co. v. McEwan, 8 .Man. 1,. R. !)!), discussed: Eickey v. l.< rown lands. It was headed "Cardiff" (the name of the township i. and at the bottom was written " Depart- ment of Crown Lands. Ottawa, November, 1866, A. Russell. As- sistant Commissioner." whose signature was proved: Held, suffi- ciently certified and receivable in evidence: Xieholson v. Page, 27 1 . C. R. olS. A map produced from the custody of the son of the original owner of the lot, and sworn to be the map upon which the township was originally sold: Held, to be properly admitted in evidence: Van Every v. Drake, !» U. C. C. P. 478. Certain maps of the City of Toronto, made by city surveyors in 1857 and 1858 show- ing thereon a square marked " Rellevue Square," were offered in evidence to show the boundaries of the square. It was shewn that 80 POST MAKE row the defendant know of these maps but they wore not prepared under his instructions: Hold, that the maps could not bo received in evidence (o shew the boundaries of the square: Van Koughnet v. Denison, 11 A. R. •;!>!>. Semite, that an admitted ropy of the field notes from the Crown lands officer may be received in evidence: Strong v. Jones, 7 (J. C. R. 385. Where it appeared that in directing (ho jury at the trial the Judge a tl ached undue importance to the effect of a plan of survey referred to in a junior .grant as against a much older plan, upon which the original grants of the lands in dispute depended, ana that the findings wore not based upon evidence sufficient in law to shift the onus of proof from the plaintiff, and were, likewise, in- sufficient for the taking of accounts in respect to trespass and con- version of minerals complained of: — Hold, that, in the absence of evidence of error, the older grants and plan must govern ihe rights of the parties: Bartlett v. Nova Scotia Steel Co.. Ms s. C. R. 33G. POST MARK. The post mark on a letter is usually taken as genuine with- out proof. But if disputed it has been doubted whether the per- son who made it must be called, or whether it may bo proved by any postmaster or by any one in the habit of reeeivjn^ letters through the same post office: Woodcock v. Houldsworth, 16 M. & W. 124. Probably it may bo verified in any of these ways, but the person who stamped the letter is not likely to recollect that he did so, or to be better qualified to speak of it than any one who happens to be acquainted with the particular post office mark. As to the presump- tion of the receipt of a letter duly posted: see Shannon v. Hastings Mutual Insurance Co., 2 A. R. 81, 2 S. C. It. 394. The post mark on a letter has boon admitted as evidence of the date of its boin? sent: Abbey v. I. ill, 5 Bing. 299; but a post mark may be contradicted by oral evidence of the real date of posting: Htoclcen v. Collin, 7 M. & W. 515. Tin- post mark is no proof of a publication of the contents of the letter at the place of posting: R. v. Watson, 1 Camp. 215. A foreij ■ on a letter is prima facie evidence of the time •i the letter was posted: O'Neill v. Perrin, M. T. .'1 Vict. POWERS. As :i general rule all the circumstances required by the creator of a power, howevc r otherwise unimportant, must bo observed, and cannot be satisfied hut by a strict and literal performance: Hawkin* . 440; and whim the power directs attestation and other formalities the attestation must notice Ihe compliance with the formalities: Mansfield v. Peach, 2 M. & S. . r >70. A subsequent correct tation indorsed upon the instrument after the death of one of IM,: !EDfi A N'D V7BITING , the parties would not remedy the defecl : Wright v. Wakeford, 2 Taunt. 214. It is doubtful whether if the attestation is deficient the ncy cannot be supplied by evidence aliunde that the formalities were :ill rone through. When the instrument creating the p does not require attestation, an informal or imperfect one will not invalidate. The Wills Act, Onl S L910, c. 57, abrogates th< i ce sity of followini the formalities prescribed by the donor of a power to be exercised by a will ur appointment in the nature of a will. Th» execution of wills in virtue of powers must conform to th«- reouin* ments of section 13 of the Act.* l nder section 18 of R. S. O. 1897 c. Mc 119, a deed executed in the presence of and attested by two or more executing witnesses in the ordinary manner, shall, so far as respects the execu- P owers - tion and attestation thereof, be a valid execution of a power of appointment by deed or instrument in writing, not testamentary, although some other execution, attestation, or solemnity may have been prescribed by the donor; provided that this shall not dispense with any requirement prescribed by him other than the manner of execution or attestation, nor prevent the donee from executing the power in the manner prescribed by the donor. A will under a power must conform to the provisions of the Wills Act. An appointment under R. S. O. 181)7, c. 128, may be executed either according to that Act, or in the, manner prescribed by the donor of the power. The Courts will in a proper case aid, as a defective appointment, an itment made by will instead of by deed: Tollett v. Tollett, 2 f*. Wms. 489; Bruce v. Bruce, 11 Eq. 371: Shore v. Shore, 21 It. 54. PRIVATE DEEDS AND WRITINGS. Whether the document was a deed or not as being under seal, considered — cases cited: Sawyer and Massey, Limited v. Bouchard. 13 W. L. K. 3P4. Where an indenture is in two parts, each party executing each part, if there is a material variation between the two parts the in- denture is void for want of mutuality: "Wynne's Case, L. R. 8 Ch. 1002. The erasure of the dnte is not to be presumed to have been made after execution, but even if it were the deed takes effect from its delivery: Fraser v. Fraser, 14 U. C. C. P. 70. A promise to deliver * ( Jompare R. S. B. O., c. 193, s. 8. R. S. N. B.. c, 160, s. 5. H. 8. Man., c. 174, s. 7. R. S. N. 8., c. 139. s. 8. k.k. — 6 82 TKIVATE DEEDS AND WRITINGS. Attesta- . conveyance includes a promise to execute it: Whittier v. McLennan, 13 U. C. R. 638. Semble, that an impression upon the paper with- out wax or any extraneous substance is a sufficient seal: Foster v. Qeddes, 14 U. C. R. 239. Signing is not essential to a deed, but should never be dispensed with : Judge v. Thomson, 20 T". C. R. 523. Whenever a deed or other instrument to which attestation is itial is subscribed by attesting witnesses, one of them at least must be called to prove the execution. By the Ontario Evidence Act, 1909, section 51, it is not necessary to prove by the attesting witness any instrument to the validity of which attestation is not prooJ given of attestation, the necessity for calling the attesting witness cannot be avoided by putting the party to the deed and against whom it is sought to be used into the witness box, and extracting an admission of the execution from him : Why man v. Oart, 8 Exch. 803. Where the attesting witness is dead or insane or infamous, or absent in a foreign country, or not amenable to the process of the Superior Courts, or where he cannot be found enquiry (Cunhffe v. Sefton, 2 East 183), evidence of the witness's handwriting has always been admissible. It is not sufficient ground for admitting evidence of the witness's handwriting that he is unable to attend from illness, and lies without hope of re- covery : Harrison v. Blades, 3 Camp. 457. The party interested in his testimony must in such a case get a Judge's order to examine him out of Court. The sufficiency of the enquiry is for the deter- mination of the Judge, who will found his opinion on the nature and circumstances of each case. When the Court is satisfied that due diligence has been used to find the witness then it is sufficient to prove his handwriting without proving the handwriting of the party unless with a view to establish his identity: Nelson v. Whittall, 1 B. & A. 19. Where the name of a fictitious person is inserted as witness: Fassett v. Brown, Peake, 23; or where the subscribing wit- ness denies any knowledge of the execution : Talbot v. Hodgson, 7 Taunt. 2f>l ; or gives evidence that the document was not duly ex- d: Bowman v. Hodgson, L. R. 1 P. & M. 362; or where the attesting witness subscribes his name withotit the knowledge or con- the party: McCraw v. Gentry, 3 Camp. 322 — in these cases it becomes necessary to prove the instrument by calling some one acquainted with the handwriting of the person executing it or who was present at the time of execution or by the admission of the party. Where there are two attesting witnesses and one of them apetent, or his evidence cannot be obtained, the other witness Compare R. S. B. 0., c. 71, s. R. S. Man., a 44. R. S. N. B., c. 127, s. 19. R. S. N. S.. c. 163, s. 32. ri;i\ aik DEEDS AND must be called and evidence of the handwriting of the absent witness will not be sufficient : CunHjfe v. Sefton, - tVhere attesta- tion is necessary to the validity of a writing t ho form and . it must depend on the provision of the law or other authority which mad- it necessary. Unless it be otherwise provided, in attesting a deed it is not necessary that the witness should see tie n or seal. If lie sees him deliver it already signed and sealed, or sealed only, where signature is unnecessary, it will be sufficient. It is not ary for the attesting witness to be able to say wnether certain blanks in the (bed were filled up at the time of execution, for this will lie presumed; and the witness generally sees nothing but the delivery: Tatum v. Catomore, 16 Q. B. 745. The fact that a after it has been signed and sealed by the grantor is retained in the la iter's possession is not sufficient evidence that it was never so delivered as to take effect as a duly executed instrument. The evi- dence in favour of the due execution of such a deed is not rebutted by the facts that it comprised all the grantor's property, and that while it professed to dispose of such property immediately, the grantor retained the possession and enjoyment of it until death: Ztoicker v. Zwicker, 2!) S. C. It. 527. A deed is presumed to have been deliv- ered on the day it bears date: Hay ward v. Thacker, 31 1 T . ('. K. t'JT. That a document not in existence was written by a particular in- Document dividual n ived by a person who had had possession of and de- no . t ' n ©XlStt'IlCc* stroyed it, though he only acquired knowledge of the handwriting of the alleged writer some w< the document was destroyed, and could only say that from his recollection of the document it was written by the same person. In an action for a written libel, the de- fendant was asked on cross-examination if he had not changed his ture since the ■ d, which he denied: — Held, that docu- mentary evidence was admissible to shew that the signature had been changed: Alexander v. Vye, 1t*> S. C. R. 501. Delivery of deed constructive possession. Actual delivery is not necessary in Nova Scotia. Where there is no adverse possession against the vendor at time of sale, the delivery of the deed carries with it constrm sion of tic land to the purchaser: Simpson v. Foot<\ 2 Thom. 240 (N. S.). The transferee of an interest in lands under an instru- ment absolute on i's face, although in fad burthened with a irust to '■ell and account for the price, may validly convey such interest with- out notice to the equitable owners (34 X. S. Rep. 453 affirmed): Oland v. McNeill, 32 S. C. R. 2'.',. All the witnesses must be ac- counted for, though the plaintiff is one of them and his handwriting proved: McDonald v. Twigg, ." U. C. R. 1^7. Every reasonable in- quiry must be made for the subscribing witness in the most likely place: Tyldcn v. Bullen, 3 U. C. R. 10. The execution of a rel of .lower being disputed, the defendant proved the handwriting of P.. the subscribing witness, who was dead. The demandant who alleged PRIVATE DEEDS AND WRITINGS. the release to be a forgery offered to prove a declaration by P. that he had left the country because he had forged the demandant's name : Held, following Stobart v. Dryden, 1 M. & W. GIG, that such evi- dence was rightly rejected: Rose v. Cuyler, '27 I'. C. K. 270. The subscribing witness to a deed need not be produced if the handwrit- ing of the party making the instrument can be otherwise proved: Woods v. Fraser, 2 Thorn. 184 UN. S.). For the purpose of proving Admission the execution of deeds, a witness who was not the witness to the es8 ' deeds went to the persons by whom the deeds purported to have been executed, who admitted to him that the signatures were theirs, and who wrote their names in the presence of the witness, who had no previous acquaintance with them or with their handwriting: Held, that evidence of these admissions, and of the belief of the witness from the knowledge of the handwriting thus acquired that the signa- tures to the deeds were genuine, was good evidence to go to a jury; and in the absence of any contradictory evidence, sufficient to warrant a finding that the deeds had been duly executed upon the respective days upon which they purported to have been executed: Thompson v. Bennett, 22 1 T . C. C. P. 308. Although one of two witnesses to an agreement may deny his signature, and a person well acquainted with the handwriting of the other may refuse to say that the signature is genuine, it may still be left to the jury to say under the circum- stances of the case whether the agreement has not in fact been signed by the parties: Baroer v. Armstrong, 6 O. S. 543. In eject- ment, the plaintiff proved a paper title, but the pateut did not issue until 1820, and the deed from the patentee was executed in 1824. This deed was lost, and the memorial of ii it to have been an ordinary conveyance in fee, but not what covenants it contained. The plaintiff crave a notice under C. S. U. C. c. 27, s. 17, and de- fendants shewed no title: Held, thai the deed by the patentee should be presumed to have been one which would operate by estoppel, and that the statute applied: Armstrong v. Little, 20 T T . C. R. 42f>. A defendant's counsel to gel from a witness an opinion as to the hand- writing of the plaintiff's receipt in full to the action, proposed to put into his hands other papers purporting to have been signed by the plaintiff, but in no way connected with the cause: — -Held, that the learned Judge rightly refused to allow the witness to be exam- 's to the other writings, till he had first from his own recollec- tion of lb" plaintiff's handwriting given an opinion upon the signa- ture of the receipt: Gleeson v. Wallace, 4 U. C. R. 245. In prov- ing the execution of a deed the attesting witness frequently states that he does not recollect the fact of the deed being executed in his but that seeing his own signature to it, he has no doubt that he saw it executed. Tliis has always been received as sufficient proof of the execution: J?, v. 8. Martin's Leicester, 2 Ad. & E. 213. Know- ledge of witness. PRIVATE DEEDS A.ND u Bl I I The grantee under a deed Is aot competent to attest t h«- execution thereof by the grantor: Seal v. Olaridge, 7 Q. B. I>. 517. Some evidence of the identity of the party to the instrument must [dentityof be given, though very slight evidence will !><■ sufficient: Whitelock v. '>' ul .. - s, _ „ _- _„„ , . . strument. Musgrove, 1 (J. It. & M. 511; unless the name is so -is to neutralize the inference of identity, or other facts appear to r; ; doubt, identity of name is prima facie enough to charge the defend- ant: 8ewell v. Evans, 4 Q. B. (inc. The sealing of the deed need not take place in the presence of the witness; it is sufficient if the party acknowledges an impression already made: Hull v. Dun- iterville, 4 T. It. 313; bul where a deed is executed under the auth- ority of a power requiring it to he under the hands and seals of the Sealing, parties, the parties must use separate seals. Where a party exe- cutes a deed with a blank in it, which is afterwards filled up with his assent in his presence, and he subsequently recognizes the deed as valid, the filling up of the blank will not void it : Hudson v. Rcvctt, 5 Bing. 30S. But generally, a deed executed in blank, and left to be filled up by another who has no authority under seal, is void: Hibblewhite v. M'Morine, 6 M. & W. 200. When a subscrib- ing witness is dead proof of the handwriting of such witness is evidence of everything on the face of the paper which imports to be sealed by the party: Adam v. Kerr, 1 B. & P. 361. Where the party named has acted under the deed, it will be presumed as against him to have been executed by him, although the seal has no signa- ture annexed: and an attestation for signature is not necessary to the execution of a deed unless it be under a power which requires it: Cherry v. Heminff, 4 Exch. 631. In the delivery of a deed no Delivery. particular form is necessary. In general an agent to deliver a deed must be authorized by deed : Berkeley v. Hardy, 8 D. & Ry. 102. A deed executed by a marksman may be proved by a person who Marksman has seen the party make his mark, and can speak as to its pecu- liarities: Gcon/c v. Surrey, M. & M. 516.- Tf the deed after sealing he tendered to the covenantee, and he expressly rejects it and re- fuses to take any benefit from it, tl , is incomplete: Xenon v. Wickham, L. It. 2 II. I,. 2'.)f>. A condition previously expressed though not introduced into the acl of delivery, is sufficient to make if n delivery as an escrow: Johnson v. Baker, 4 B. & A. 441. Delivery as Escrow. an escrow requires no express words, but may be inferred from cir- Bovoker v. Burdekin, 11 M. & W. 12S. Delivery to a third person is not essential to a delivery as an escrow: G" ' v. Besset 6 E. & B. 986. Where notice was given to produce a deed in the defendant's possession, and the defendant at the trial -1 to do so, the plaintiff was allowed to prove it by a copy without calling any attesting witness; and it was held that the de- fendant could not put the plaintiff to a strict proof by afterwards producing the attested original: Edmonds v. ChaUis, 7 C. B. 41 'A ; 86 PROBATE AND LETTERS OF ADMINISTRATION. Jackson v. Allen, 3 Stark. 71. If witnesses are dead and the execu- tion by the party to the instrument is proved, it is questionable whether proof of the handwriting of the witnesses is in any case necessary; at all events, if the attesting witness can be identified with a deceased person, this will dispense with further proof of his handwriting, for the only object of such last mentioned proof is to tablish his identity: /.'. v. Giles, 1 E. & P.. 642. When Proof of Execution Dispensed "With. — Where a party producing a deed upon a notice claims a beneficial interest un- der it, it is not necessary for the party calling for the deed to prove the execution of it : for in such a case the defendant by claiming under it accredits it as against him, though not to the extent of estopping him: Pcarce v. Jdopper, 3 Taunt. 60. Where the party producing the deed docs not claim an interest under it, the party calling for it must prove it in the regular manner: Gordon v. Secre- tan, S East 548; so, if the party producing it claim an interest in it, but an interest unconnected with the cause, as where the ac- tion is for commission for procuring an apprentice for the defendant, and the instrument produced is the deed of apprenticeship: Rearden v. M inter, 5 M. & 62. The words "Her Majesty's possessions out of T"ppcr Canada," used in 16 Vict. c. 19. s. 5 iC. S. T\ C. c. 32, s. 11), include England :— Held, therefore, that the probate of a will executed there, under the seal of the pre- rogative court of Canterbury, was properly received in evidi Coltman v. Brown, 16 T T . C. R. 133. A will devising land in Upper Canada having been made in Lower Canada, where testatrix lived, and heinc duly proved and enrolled among the records of the <'ourt of King's Bench, and copies thereof directed to be piven to the parties legally entitled thereto : — Held, thnt an office copy of such 88 PROCLAMATIONS, ORDERS IN COUNCIL. will, duly certified, &c, was equivalent to letters probate in Upper Canada, and could be registered as such : Patullo v. Boyington, 4 U. . P. 125. Proclama- tions, Or- ders in Council, etc.of Gov- ernment <>f Canada and of Provincial Govern- ments, bow proved. PROCLAMATIONS. On an application to set aside a nonsuit in an action brought by the plaintiff for damages for injuries occasioned by the defendants' negligence while in their employment, the Court on the argument allowed the plaintiff on terms to give in evidence the proclamation bringing into force the Ontario Factories Act : Dean v. Ontario Cot- ton Mills Co., 14 O. R. 119. The King's proclamation being an act of state of wbich all ought to take notice, is evidence to prove a fact of a public nature recited in it. viz., that certain outrages had been committed in different parts of certain counties : R. v. Sutton, 4 M. & S. 532. The Gazette is evidence of all 8cts of state published therein, as where it states that certain addresses have beeu pre- sented to the King, it is evidence to prove that fact: R. V. Holt, 5 T. R. 43(5 ; but the Gazette is not evidence unless so made by statute of matters therein contained which have no reference to acts of state, as a grant by the King to a subject of a tract of land: R. v. Holt, 5 T. R. 443. The existence of a war between this country and another requires no proof: R. v. De Berenger, 3 M. & S. 67. Sections 23 and 24 of the Ontario Evidence Act provide: — 23. Prima facie evidence of a proclamation, order, regulation or appointment to office made or issued (a) By the Governor-General or the Governor-General in Coun- cil, or other Chief Executive Officer or Administrator of the Government of Canada, or (b) By or under the authority of any Minister or Head of any Department of the Government of Canada or of a Pro- vincial or Territorial Government in Canada, or (c) By. a Lieutenant-Governor or Lieutenant-Governor in Coun- cil or other Chief Executive Officer or Administrator of Ontario or of any other Province or Territory in Canada, may be given by the production of (a) A copy of the Canada Gazette or of the official Gazette for any Province or Territory purporting to contain a notice of such proclamation, order, regulation or appointment, or (b) A copy of such proclamation, order, regulation or appoint- ment purporting to be printed by the King's Printer or by the Government Printer for the Province or Territory, or (o) A copy of or extract from such proclamation, order, regu- lation or appointment purporting to be certified to be a true PROGRAMMES — PUBLIC BOOKS AND DOOUME 89 copy l>y such Minister or Iliad of a Department or by the < lerk <»r assistant <>r acting Clerk of the Executive Council or by the Head of any Department of the Government of i anada or of a Provincial or Territorial Government or by his Deputy <>r acting Deputy. 24. An order in writing purporting to be signed by the Secretary Or of State of Canada, and to be written by command of the Governor- ^g" ed beoretary General, shall be received in evidence as the order of the Governor- ,,f State General; and an order in writing purporting to be signed by the ','! . , Provincial Provincial Secretary and to be written by command of the Lieutenant- < ecr . Governor, shall be received iu evidence as the order of the Lieutenant- Governor.* 25. Copies of proclamations and of official and other documents, Notices in notices and advertisements printed in the Canada dazcttc or in the Ontario Gazette or in the official Gazette of any Province or Terri- tory in Canada, shall be prima facie evidence of the originals and of the contents thereof.^ PROGRAMMES. Objections to secondary evidence of the contents of written docu- ments must be distinctly stated when it is offered ; and if not objected to it is received, and is entitled to its proper weight, and the weight to be attached to it will depend upon the circumstances of each case. Each programme of an entertainment is an original document, not a mere copy; Carte v. Dennis, 5 Terr. L. R. 30. PUBLIC ROOKS AND DOCUMENTS. Whenever an original is of a public nature, and admissible in evidence as such, an examined copy is on grounds of public conven- ience also admissible : Lynch v. Clcrkc, 3 Salk. 154. Public books and documents of an official character are in many instances evi- dence even as between strangers of the facts therein recorded. Thus where a duty is cast by common law or statute upon a person to * Compare R. S. B. C, c. 71, ss. 0, 10 and 10. R. S. Man., c. 57, ss. S. f>. 10 ami 11. R. S. N. R., c. 127. ss. 52 and 51. R. S. N. S.. c. 1(53. ss. 5. 0. 7 and 8. } Compare R. S. R. C, c. 71, ss. 17 and 13. R. S. Man., c. 57, ss. 20 and 14. R. S. N. B.. c. 127. ss. 55 and 72. II. S. N. S., C. 163, ss. 10 and 11. 90 PUBLIC BOOKS AND DOCUMENTS. register or certify that certain facts existed within his knowledge, the register or certificate would it seems be evidence of those facts; and in some cases the statute requiring the registration to be made pro- vides that the register shall be evidence, although the facts are not within his knowledge, e.g., registers of births and deaths. In other s, however, the register would be admissible in proof of the fact of registration only. Thus, a report made by public officers is admis- sible only in proof that they have made a report, but not of the facts therein stated : Sturla v. Freccia, 5 Ap. Cas. 623, D. P. The term " public document " is used in the sense of one made by a pub- lic officer for the purpose of the public using it and being able to refer to it ; the public having access thereto are not necessarily all the world, but may be limited, e.g.. the members of a corporation : Id., 643. The contents of public documents which it is not desirable to remove from their place of deposit, such as those having references to shipping, navigation or trade, may be proved by examined copies : Burpee v. Carvill, 3 Pug. 141 (N.P,.). A notice of intention to offer in evidence a certified copy of a document need not state the particular court at which the document will be offered ; it is sufficient if it states generally that the document will be offered at the trial of the cause, and it is good until the cause is tried : Smith v Smith, 37 X. B. R. 7. The Ontario Evidence Act provides : — H°w 26. Where the original record could be received in evidence, a official copy of any official or public document in Ontario, purporting to be documents certified under the hand of the proper officer, or the person in whose custody such official or public document is placed, or of a document, By-laws, etc., of cor- by-law, rule, regulation or proceeding, or of any entry in any register porations. r other book of any corporation, created by charter or statute in Ontario, purporting to be certified under the seal of the corporation, and the hand of the presiding officer or secretary thereof, shall be receivable in evidence without proof of the seal of the corporation. or of the signature or of the official character of the person or persons appearing to have signed the same, and without further proof thereof. Privilege 27. Where a document is in the official possession, custody or in cis6 or official power of a member of the executive council, or of the head of a de- documents partment of the public service of Ontario, if the deputy head or oilier officer of the department has the document in his personal ssion, and is called as a witness, he shall be entitled, acting in by the direction and on behalf of such member of the executive council or head of the department, to object to produce the document on the ground that it is privileged ; and such objection may be taken by him in the same manner, and shall have the same effect, as if such member of the executive council or head of the department were onally present and made the objection. PUBLIC BOOKS ami DOCUMEB 91 us. A copy of an entry in any booh <>f account kept in any Entries in department of the government of Canada or <>f Ontario, shall be ^ m Jnta,i ceived as prima facie evidence of such entry, and of the matters, transactions and accounts therein recorded, if it is proved hv th< evidi or affidavit of an officer of such department that such book wai the tin E the ma kin- of the entry, one of the ordinary books kept in such department, that the entry was apparently, and as the de- ponent believes, made in the usual and ordinary course of business of such department, and that such copy is a true copy thereof. ■ l i Where a book or other document is of so public a nature Cop as to be admissible in evidence on its mere production from the proper hooWgoj custody, a copy thereof or extract therefrom shall be admissible in documents evidence, if i is proved that it is an examined copy or extract or a ' '• m evidence that it purports to be signed and certified as a true copy or extract by the officer to whose custody the original has been entrut (2) Such officer shall furnish the certified copy or extract to Copies to any person applying for the same at a reasonable time, upon his ^ j ( ^ paying therefor a sum nof exceeding ten cents for every folio of one required. hundred words.' As to documents in Crown Lands Department, the Ontario Re- vised Statutes, 1S97, c. 2S, s. 47, provides : 47. (1) Copies of records, documents, books or papers, belonging Attested to or deposited in the department, attested under the signature °^^ , | ie> t ° the Commissioner or of the Assistant Commissioner, shall be com- mental re- petent evidence in all cases ,n which the original records, documents, cords, etc , to be books or papers, could be evidence. evidence. (2) Copies of licenses or other instruments or documents issued*,' P v ' * _ documents under the hand of the Commissioner or Assistant Commissioner, or a s evidence other officer or agent of the department, by authority of this Act, or the Act respecting Timber on Public Lands, shall be received in any Court as prima facie evidence of the license, instrument or document, and of the contents thereof, if such copies are attested under the signature of the Commissioner or Assistant Commissioner and the official seal of the department.^ * Compare R. S. B. Cm e. 71. ss. IS and 14. K. S. Man., c. 57, SS. 15, 16 and IS. R. S. N. B . c. 127, ss. 56, 57 and 2S. R. S. N. S., c. 103. ss. 13 and 14. pare R. S. B. C. none. R. B. N, B., none. R. S. Man., none. R. S. N. S., c. 2. ss. 34 and 35. 92 REGISTERED INSTRUMENTS. As to journals of Provincial Legislature, the Ontario Statute relating to the Legislative Assembly, Ont. Acts, 1908, c. 5, sees. 58-60, provide : Protection 53 (j) \ uy person who is a defendant in any civil proceeding of |>f! - . , . .,.,..- publishing commenced in any manner for or in respect of the publication of any papers by report, paper, vote or proceeding by such person or by his servant by Assemblv or um ' er tne authority of the Assembly may bring before the Court in which such proceeding is pending (first giving 24 hours' notice of hij intention so to do to the plaintiff or his solicitor) a certificate under the hand of the Speaker or of the Clerk of the Assembly stating that the report, paper, vote or proceeding in respect whereof such proceeding has been commenced was published by such person or by his servant by order or under the authority of the Assembly, together with an affidavit verifying such certificate. (2) The Court shall thereupon immediately stay such proceeding and the same and every writ or process issued therein shall be taken to be finally put an end to, determined and superseded. Produc- 59. (1) If a civil proceeding is commenced for or in respect of nun 01 the publication of any copy of such report, paper, vote or proceeding Court and the defendant at any stage of the proceeding may lay before the stay of pro- Court such report, paper, vote or proceeding and such copy, with an ceedings. _,...., , , affidavit verifying such report, paper, vote or proceeding and the correctness of such copy. (2) The Court shall thereupon immediately stay such proceeding and the same and every writ or process issued therein shall be taken to be finally put an end to, determined and superseded. Buna fide 60. It shall be a good defence to any civil proceeding against pub ica- a p erson f or printing any extract from or abstract of any such LlOIl ££OOQ defence. report, paper, vote or proceeding that the extract or abstract wag published bona fide and without malice.* REGISTERED INSTRUMENTS. As to registered instruments the Ontario Evidence Act provides : Meaning 45 iphe word " instrument " in the next succeeding two sections of "rastru- . ,, , , . . , , . n , ,, ment." shall have the meaning assigned to that word in section Z of the Registry Act. pare It. S. B. O, none. R. S. N. B., none. R. S. Man., none. R. S. N. S., c. 163, 19 and 20. 98 4i>. A copy of an instrument or memorial '•»• i-t i f !••' 1 under the hand R and seal of office of the Registrar, Master of Titles or Local .Master t of Titles, in whose office the deposited, filed, kept or regis-;/; ima faeie terud. rue copy, shall be prima facie evidence of the original, ,:Vence- except in the cases provided for in section 47. [As to effect of production of an original duplicate the registra- tion of which i d, see c. 136, s. 63.] * 47. Where it would he necessary to produce and prove an in- Ce strument or memorial which has been so deposited, filed, kept or ^"^reri registered in order to establish such instrument or memorial and the instru- contents thereof, the party intending to prove the same may give j"J >tsm«y notice to the opposite party ten days at least before the trial, or stead of other proceeding in which the proof is intended to be adduced, that original.-* nfter he intends at the trial or other proceeding to give in evidence, as notice. proof of the instrument or memorial, a copy thereof certified by the Exception. Registrar, Master of Titles or Local Master of Titles, under his hand and seal of office, and in every such case the copy so certified shall be sufficient evidence of the instrument or memorial, and of its validity and contents, unless the party receiving the notice within four days after such receipt, gives notice that he disputes its validity, in which case the costs of producing and proving it may be ordered Costs in to be paid by any or either of the parties as may be deemed just. «ucn cases. 48. (1) Where a public officer produces upon a subpeena an Copies of original document, it shall be deposited in Court, unless otherwise official ,,,.-,, . , , „ , documents ordered, but if the document or a copy is needed for subsequent t() np n | e ,j reference or use, a copy thereof or of so much thereof as may be m lieu of deemed necessary, certified under the hand of the officer producing g the document or otherwise proved, shall be filed as an exhibit in the place of the original; and the officer shall be entitled to receive in addition to his ordinary fees, the fees for any certified copy, to be paid to him before it is delivered or filed. (2) Wlien> an order is made that the original be retained, the Original to order shall be delivered to the public officer, and the exhibit shall be retained ... , upon order be retained in Court and filed.J ofiud * (Sic. i 1900. C. 136 is superseded by c. 60 of Statutes of .1010.) t < R. S. B. C, c. 71. ss. 39, 40, 47 and 48. R. S. Man., none. R. 8. N. B., c. 127, s. 63. R. S, N. P.. c. 163, ss. 24 and 30. y^ REGISTERS OF BIRTHS, ETC. The Ontario Registry Act, c. 60 Ont. Acts 1910, provides; (ss. 22 and 52). Registrar 22. (1) On request of any person, the registrar shall furnish certified a certifie d C0 PJ under his hand and seal of office, of any instrument copies. or memorial deposited, registered, or filed, and kept in his office. Not b ",' :, " i ( 2 ) No registrar or deputy registrar shall Be required to produce luce * anypapers, au - y instrument or document in his custody as registrar or deputy regis- except on trar, unless ordered by a Judge of one of the Courts of Ontario, which judge. order shall be produced to the officer issuing the subpoena requiring such production, and shall be by him noted in the margin of the sub- poena. [As to filing a certified copy in Court in lieu of original produced on subpoena, see Ontario Evidence Act, s. 48, supra.] "? 52. (1) When an instrument is registered, the registrar shall into regis try book. ma ke an entry thereof in the abstract and alphabetical index books, and record the instrument in the registry book, in the order in which Filing in- it is received, and file the same with the affidavit of execution, and and " any otner affidavit or certificate accompanying it, and shall endorse affidavit, on every such instrument and upon every duplicate or other original part of it, a certificate, Form 8, and shall therein mention the year, month, day, hour and minute in which the instrument was registered, stating in what book the same has been recorded, and Certificate the registration number ; and shall sign the certificate, which shall a £ I be allowed and taken, in all Courts, as evidence of the respective enect. ' registries.* REGISTERS OF BIRTHS, BAPTISMS, MARRIAGES, ETC. Parish registers of baptisms, marriages and burials may be proved by production of the register itself, or by examined copies : B. N. P., 247. In order to prove the register of a marriage it is not necessary 11 the attesting witnesses, but as the registry affords no proof of the identity of the parties, some evidence of that fact must be given, as by calling th" minister, clerk or attesting witnesses or others present, or the handwriting of the parties may be proved: Birt v. Barlow, 1 Doug. 172. But whatever is sufficient to satisfy jury as to the identity is good evidence: Hubbard v. Lees, L. R. >a re R. S. B. C. c Ill, ss. 12, 40 and 48. It. S. Man., c. 150, ss. 16, 30, ?,1 and 38, 51. R. S. N. B., c. 151, s. 21. R. S. N. S., c 137, ss. 2.°, to 25, 34. RES -ii DIl ■ I A ttl LE8 VISITORS' 1 Ex. 255. To prove ilio handwriting of the parties in the register il ie not necessary to produce the original register for that purpose, hut the witi . speak t<> the handwriting in ir without produc- ing it: Bayer v. Olosaop, 2 Ezch. 409. A photograph may often be used for the purpose of identification: /?. v. Tolson, 4 1'. & !•'. 103. Ii' the marriage is proved by a person who was present, it is not necessary to prove the registration or license or banns: Allison's Case, R. & Ry. 109. Foreign registers of births, marriages and deaths would seem to be admissible if proved to have been prepared under official au- thority: Abbott v. Abbott, 28 L. J. P. M. & A. 57. Parish. Registers. — The registers of baptisms, marriages and burials, preserved in churches, are good evidence of the facts which it is the duty of the officiating minister to record in them: B. A'. P., 247. A registry of marriage is evidence of the time of the marriage: Wallaston v. Barnes, 1 M. & Rob. 386. RES JUDICATA. See Judgment, a- The opinion given to the Government by the Court of Appeal upon a question referred to the Court under 01 V.. c. 11, is an opin- ion only and cannot be a point passed upon res judicata, and is not even a compromise, a transaction, nor an arbitration, inasmuch as the question referred to the Court of Appeal is not by the consent of the parties, but upon the sole initiative of the Government : OaUndez v. The King, Q. a. 20 S. C. 171. RULES OR ORDERS OF COURT AND JUDGES' ORDERS. An order (in the common law Courts formerly called a rule) of a superior Court is proved by an office copy thereof, for such a copy is the order itself: Ludlow v. Charlton. 9 C. & V. 242. A Judge's order may he proved either by producing the order itself signed by the Judge and delivered out in the usual way; or by proof of the rule or order, if any. making it a rule or order of the Court : Still v. Halford. 4 Camp. 17. An order of Court is not matter of record in the strict sense of the word : R. v. Bingham. 3 Y. & J. 101. SENTENCES OF VISITORS. ETC. In ejectment against a schoolmaster who has been removed by n sentence of the trustees of the school (such power being vested in them) for misbehaviour, it is not necessary for the plaintiffs to prove yu SHIPPING — SHIPS KEG i the grounds of the sentence and the defendant cannot disprove them Davy v. H addon, 3 Doug. 310. SHIPPING. The Dominion Admiralty Act, R. S. C. c. 141, s. 22, provides: — 22. In the Province of Ontario : — Remedy mi (a) No right or remedy in rem given by this Act only shall be em, when en f orce( j as against any subsequent bona fide purchaser or mortgagee enforced, of a ship unless the proceedings for the enforcement thereof are begun within ninety days from the time when such right or remedy accrued ; Effect of mortgage. (6) No right or remedy in rem given by this Act except a right or remedy in rem for tne wages of seamen and other persons em- ployed on board a ship on any river, lake, canal, or inland water, of which the whole or part is in the Province of Ontario, shall be enforced as against any bona fide mortgagee under a mortgage duly executed and registered prior to the first day of October one thousand eight hundred and seventy-eight. SHIP'S REGISTER. Since the Merchant Shipping Act, 1854, the ship's registry is prima fade evidence of all the matters contained in it or certified by the registrar in his certificate, as for instance that the ship is British : R. V. Bjornsen, 34 L. J. M. O. ISO ; or that the defendant is owner: Ilibbs v. Ross, L. it. 1 Q. B. 154. Notwithstanding the provision in the Imperial Interpretation Act of 1880 that the repeal of an Act shall not affect any suit, proceeding or remedy under the repealed Act, in proceedings under the Merchants' Shipping Act of 1854, proof of ownership of a ship may be made according to the provided in the Merchants' Shipping Act, 1894, by which the er Act is repealed. Under the Act of 1894 a copy of the registry of a ship registered in Liverpool, certified by the registrar-general of shipping at London, is sufficient proof of ownership: The Queen v. The Sailing Ship "Troop" Company, 20 S. C. R. 662. In an action for services rendered to a vessel: Held, that oral evidence of owner- ship of a vessel was admissible, and that it was not necessary to pro- duce the certificate of registration for assuming that in actions by or against owners, the ownership must be proved by certificate, yet the mere ownership may not create a liability, and defendants may be liable apart from it under a contract made by their agent, as in this '•asc by the purser. Semble, tliat the objection was not open to the defendants after their proof without production of the certificate that W. P>. had ceased to be owner: Lake Superior Navigation Co. v. Beatty, 34 U. C. R. 201. SIGNAG l RES OF JUDGES, I 97 SIGNATURES OF JUDGES. ETC. The Ontario Evidence Act provides (sections 30 and 31) : * 30. (1) All Courts, Judges, Justices, Masters, Clerks of Courts, Judicial Commissioners and other officers acting judicially, shall take judi- J lotlce t° be taken of cial notice of the signature of any of the Judges of any Court in .signature* Canada, in Ontario and in every other Province and Territory in of ' ,u Canada, where such signature is appended or attached to any decree, order, certificate, affidavit, or judicial or official document. (2) The Members of the Board of Railway Commissioners of Canada and of the Ontario Railway and Municipal Board, the Min- ing Commissioner and the Referees appointed under The Municipal Drainage Act shall be deemed Judges for the purposes of this section. 31. No proof shall be required of the handwriting or official posi- Proof -if . - . , , , handwnt- tion of any person certifying to the truth of any copy of or extract m „ \ V („. n from any proclamation, order, regulation or nppointment : and any not such copy or extract may be in print or in writing, or partly in rec i'""'' • print and partly in writing. STATUTES. The printed statute book is used as evidence of a public statute, not as an authentic copy of the record itself, but as aids to the memory of what is supposed to be in every man's mind already. Hut the marginal note of a statute in the copy so printed forms no part of the statute itself, and cannot be used to explain or con- strue the section: Clay don v. Greene, L. R. 3 C. P. oil. The punctuation does not form part of the law : Idem. p. 522 ; nor the title: R. v. Williams, 1 W. Bl. 951. The preamble of a public general Act of Parliament reciting the existence of certain outrages is evidence to prove that fact ; because in judgment of law every subject is privy to the making of it : 7?. v. button, 4 M. & S. 532. But allega- tions of fact in a public statute are not conclusive: R. v. Greene, 6 Ad. & 54S Recitals in a printed Act are not conclusive either of fact or law : A\ v. E aught on, 1 K. & B. 501. A private statute, though it contains a clause requiring it to be judicially noticed as a public one, is not evidence at all against strangers either of notice or any ot the facts recited: Taylor v. Parry, 1 M. & R. 504. The Courts R. S. P.. C. none. R. S. X. B„ none, R. S. Man., c. 57. s. 19. R. S. X, S„ c. 163, s, 15, K.E. — 7 98 INTERPRETATION OF STATUTES. are bound to take judicial notice of every public Act of the Provincial Legislature, though its operation may be locally limited : Darling v. . •/,, 25 U. C. R. 4(33. 28 U. C. R. 439. Evidence of letters patent. The Ontario Evidence Act provides (sections 21 and 22) : * 21. Letters patent under the Great Seal of the United Kingdom of Great Britain and Ireland or of any other of His .Majesty's Do- minions may be proved by the production of an exemplification thereof or of the enrolment thereof under the Great Seal under which the same may have issued and such exemplification shall have the like force and effect for all purposes as the letters patent thereby exemplified as well against His Majesty as against all other persons whomsoever. Copies oi 22. Copies of Statutes, Official Gazettes, Ordinances, Regula- Canadiati f loas Proclamations, Journals, Orders, Appointments to Office, no- and Prov- incial tices thereof, and other public documents purporting to be printed statutes as by or under the authority of the Parliament of Great Britain and (** V Kl€*TlCf Ireland or of the Imperial Government or by or under the authority of the Government or of any legislative body of any Dominion, Com- monwealth, Slate, Province, Colony, Territory or Possession within the King's dominions, shall be admitted in evidence to prove the contents thereof. The following provisions of the Ontario Interpretation Act will be found of service : — Acts to l>e 39. Every Act shall, unless by express provision it is declared to deemed be a private Act, be deemed to be a public Act, and shall be judicially Acts. noticed by all Judges, justices of the peace, and others, without being specially pleaded. Preamble 40. The preamble of an Act shall be deemed a part thereof and to be a intended to assist in explaining: the purport and object of the Act. part of Act 41. Every Act and every provision or enactment thereof shall be deemed remedial, whether its immediate purport be to direct the doing of anything which the Legislature deems to be for the public good, or to prevent or punish the doing of anything which it deems to be contrary to the public good, and shall accordingly receive such fair, Construe- large and liberal construction and interpretation as will best ensure the attainment of the object of the Act, and of the provision or enact- ment, according to the true intent, meaning and spirit thereof. All Acts remedial, tion. * Compare R. S. B. C. none. R. S. Man., c. 57. s. 7. R. S. N. B„ s, 127, s, 50, R. S. N, S„ c, 163, s, 3, ].\ . TIuN OF 42. Where reference is made l>y number t<> two or more sections, Referen sub-sections or clauses in any statute, the number fii and the number last mentioned slnll l»>ili l I in the reference. !.';. Where an Acl is not to come into operation immediately on number. the passing thereof, and confers power to make any appointment. to^' liit " ia y bo done make, grant or issue any instrument, thai is to say, any order-in- under an council, order, warrant, scheme, letters patent, rules, regulations, or Act before r ,, ,,. the date by-laws, to Rive notices, to prescribe forms or to do any other thing for the purposes of the Act, that power may, unless the contrary in- its tention appears, be exercised at any time after the passing of the Act, men( . so far as may be necessary or ezpedienl for the purpose of bringing the Act into operation at the date of the commencement thereof, sub- ject to this restriction that any instrument made under the power shall not, unless the contrary intention appears in the Act, or the contrary is necessary for bringing the Act into operation, come into operation until the Act comes into operation. 44. Where any Act confers power to make, grant or issue any Expr«a- .. . . , . ., , . sions used instrument, that is to say, any order-in-council, order, warrant, ■ j nstru . scheme, letters patent, rules, regulations or by-laws, expressions used ments in the instrument, if it is made after the 31st day of December, 1897, Issued l ">- der any shall, unless the contrary intention appears, have the same respec- Act to tive meaning as in the Act conferring the power. nave ? ame meaning as 45. Every Act shall be construed as reserving to the Legislature in the Act. the power of repealing or amending it, and of revoking, restricting or Reserva- modifying any power, privilege or advantage thereby vested in or , )OWer t() granted to any person or party, whenever the repeal, amendment, repeal or revocation, restriction, or modification is deemed by the Legislature im, ' n to be required for the public good. 49. The repeal of an Act or enactment shall not be deemed to Effect of be or to involve a declaration that such Act or enactment was. or l ^"' A ° Act on was considered by the Legislature to have been, previously in force, persons ."0. The repeal or amendment of any Act shall not be deemed t ■> un d'-r it be or to involve any declaration whatsoever as to the previous state As to Act*, of the law. etc., done before re- 51. The amendment of any Act shall not be deemed to be or to peal. involve a declaration that the law under such Act was, or was con- Offences sidered by the Legislature to have been, different from the law as it jj' n " "" has become under such Act as so amended. penalties c „ „,, T • i ^ t ,, . . inourrml f>2. The Legislature shall not. by re-enacting an Act or enact- „,.,; ment or by revising, consolidating or amending the same, be deemed affected by to have adopted the construction which has, bv judicial decision or ' .. , , , , " Rules, etc., otherwise, been placed upon the language osed in si"* 1 * Act or enact- ln . M \ e b«. ment or upon similar language. f >re rep«al 100 INTERPRETATION OF STATUTES. Appoint- ments and bonds before repeal. Other rules of con- struction applicable. Law always speaking. Every Act remedial. Incorpor- ation, effect of. Banking powers. 53. No Act or enactment shall affect in any manner or way whatsoever, the rights of His Majesty, his heirs or successors, un- less it is expressly stated therein that His Majesty shall be bound thereby ; nor if the Act be in the nature of a private Act, shall it affect the rights of any person, or body politic, corporate, or colle- giate, such only excepted as are therein mentioned or referred to. 59. Nothing in this section shall exclude the application to any Act. of any rule of sonstruction applicable thereto, and not incon- sistent with this section. The Dominion Interpretation Act contains the following (among other) provisions: — 10. The law shall be considered as always speaking, and when- ever any matter or thing is expressed in the present tense the same shall be applied to the circumstances as they arise, so that effect may be given to each Act, and every part thereof according to its spirit, true intent and meaning. R. S. c. 1, s. 7. 15. Every Act and every provision and enactment thereof shall be deemed remedial, whether its immediate purport is to direct the doing of anything which Parliament deems to be for the public good, or to prevent or punish the doing of anything which it deems con- trary to the public good ; and shall accordingly receive sueh fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act, and of such provision or enactment according to its true intent, meaning and spirit. R. S. c. 1, s. 7. 30. In every Act, unless the contrary intention appears, words making any association, or number of persons, a corporation or body politic and corporate shall : (a) Vest in such corporation power to sue and be sued, to con- tract and bo contracted with by their corporate name, to have a common seal, to alter or change the same at their pleasure, to have perpetual succession, to acquire and hold personal property or mov- ables for the purposes for which the corporation is constituted and to alienate the same at pleasure ; and (6) Vest in a majority of the members of the corporation the power to bind the others by their acts ; and ( r) Exempt individual members of the corporation from personal liability for its debts or obligations or acts, if they do not violate the provisions of the Act incorporating them. 2. No corporation shall be deemed to be authorized to carry on the business of banking unless such power is expressly conferred upon it by the Act creating such corporation. INTERPRETATION OF STATUTES. 101 31. In every A.ct, unless the contrary intention appears: General rules. (a) If anything is directed to be done by or before a ma S' 8 ~ Maeis- or a justice <>f the peace or other public functionary or officer, trates, e,tc. it shall be done by or before one whose jurisdiction or powers ex- tend to the place where such thins is to ho done; (b) Whenever power is given to any person, officer or func- Powen. tionary, to do or enforce the doing of any act or thinj:, all such powers shall be understood t<> he also given as are necessary to en- able such persou, officer, or functionary to do or enforce the doing of such act or thing; I c > »Vhen any act or thing is required to be done by more than w • ■. • two persons, a majority of them may do it ; (d) Whenever forms are prescribed slight deviations therefrom, Forms, not affecting the substance or calculated to mislead, shall not in- validate them ; (e) If a power is conferred or a duty imposed the power may Powers be exercised, and the duty shall be performed from time to time as a duties - occasion requires ; (/) If a power is conferred or a duty imposed on the holder Idem, of any office as such, the power may be exercised and the duty shall be performed by the holder for the time being of the office ; (g) If a power is conferred to make any rules, regulations or Pules, by-laws, the power shall be construed as including a power, exer- filiation* cisable in the like manner and subject to the like consent and con- laws, ditions, if any, to rescind, revoke, amend, or vary the rules, regula- tions, or by-laws, and make others: (/i) If the time limited by any Act for any proceeding, or the If time doing of anything under its provisions expires or falls upon a holi- . , S j 0n a day, the time so limited shall be extended to. and such thing may be done on the day next following which is not a holiday ; (i) Words importing the masculine gender include females; Masouline . includes {)) Words in the singular include the plural, and words in the feminine. plural include the singular; Singular (A:) Words authorizing the appointment of any public officer or functionary, or any deputy, include the power of removing or Removal suspending him, re-appointing, or re-instating him. or appointing""' , another in his stead in the discretion of the authority in whom the power of appointment is vested; (I) Words directing or empowering a minister of the Crown Minister* to do any act or thing, or otherwise applying to him by his name of 'i" ,, f ; „ uwpu wt?3. office, include a minister acting for, or if the office is vacant, in the place of such minister, uudor the authority of an order in council, and also his successors in such office, and his or their lawful deputy: SI KVEYORS NOTES. public "Com- mence- ment." "Herein." "Holiday 'Month.' 'Person. "Shall. ' "May." (m) Words directing or empowering any other public officer or functionary to do any act or thing or otherwise applying to him by his name of office, include his successors in such office, and his or their lawful deputy. 34. In every Act unless the context otherwise requires : — " Commencement.'' when used with reference to an Act. means the time at which the Act comes into operation. "Herein" used in any section shall be understood to relate to the whole Act. and not to that section only ; "Holiday"' includes Sundays, New Year's Day, the Epiphany, Good Friday, the Ascension, All Saints' Day, Conception Day, Easter Monday, Ash Wednesday, Christmas Day, the birthday, or the day fixed by proclamation for the celebration of the birthday of the reigning sovereign, Victoria Day, Dominion Day, the first Monday in September, designated Labour Day, and any day appointed by proclamation for a general fast or thanksgiving. " Month " means a calendar month. " Person " includes any body corporate and politic, and the heirs, executors, administrators, or other legal representatives of such i. according to the law of that part of Canada to which the context extends. " Shall " is to be construed as imperative, and " may " as per- missive. " Writing," " written," or any term of like import, includes ftords printed, painted, engraved, lithographed or otherwise traced or copied. SURVEYORS' NOTES. See ante under Patents for Land Grants: Kenny v. Caldwell, 21 A. R. 110; 24 S. C. R. 000. Old surveys not admitted as an evidence of the high-water mark at the time when they were made, either as beins made by a deceased person in the course of his duty or as matter of public reputation: Asshet on- Smith v. Otoen, ir> L. J. Ch. LSI; (1906), 1 Ch. 170; 04 L. T. 42: 10 Asp M. C. 164; 22 T. L. R. LS2. A surveyor had been employed in 1864 by a local board to survey ground comprising the property in question for the purpose of a drainage scheme. He had in the time made in his note-book, for the purpose of his report, entries of certain levels and other figures, and these entries were afterwards used by bim in making his report. He was now dead: — Held, that the entries were admissible in evidence to shew the line to which the bi-monthly spring tides flowed at the date of the conveyance : Meltor v. Wahncs- ley, 74 L. .7. Ch. 475; (1905), 2 Ch. 164; 83 L. T. 574; 53 W. R. 581. TBI EGRAM8. 103 TELEGRAMS. No i j r i • . to telegran in thi >n of a tele- graph company. 4". V. D.), should not be read as giving un absolute privilege: -Held, also, thai the operator was the proper person to subpoena to produce telegrams, us he had the con- trol of them and the ability to prod See Dtoight and Mack- Um, 15 O. R. 14S. The same principle thai admits proof that let- ters were deposited in the posl office, duly addressed, as tending to snew that they were received by the persons to whom they are ad- dressed, applies to telegrams: White v. Flemming, 20 X. S. R. (8 R. & G.) 335 (N.S.). When a contract is attempted to be made out through telegrams, if that can be done at all, the messages signed by the parties must be produced, not the transcript taken from the wire: Kinghome v. Montreal Telegraph Co., 18 D. C. R. 60. A. telegraphed to B., "Will you sell us P.. II. P.? Telegraph lowest cash price." B. telegraphed in reply. " Lowest price for B. II. P. 900 pounds." A. telegraphed, " We agree to buy B. II. P. for 900 pounds asked by you." B. did not reply : — Held, that there was no contract. The final telegram was not the acceptance of the offer, is there was no offer to sell, only an offer to buy, the acceptance of which must be express: Harvey v. Facey (1893), A. ('. 552. Distinguished and explained: Philip v. Knoblauch (1907), S. C. 994. Where parties have corresponded by means of a telegraphic code, . it is for the plaintiff, in an action for breach of contract, to shew that the proposal made by him and accepted by the defendant Is so clear and unambiguous that the defendant cannot be heard to say that he misunderstood it. It is not a matter for the Court to con- strue: Falck v. Williams, 69 L. J. P. C. 17: (1900). A. C. 176. The defendants alleged that the telegraph company had made a mistake in the transmission of a message, but the original message as delivered by the defendants to the company at Vancouver was not proved: — Held, that assuming the mistake to be proved by proper evidence, the defendants were not responsible for it, for, even if the telegraph company were the defendant's agents, the authority of the agents was limited to the transmission of the message in the terms in which the defendants delivered it: and the document handed to the company for transmission was the original order which must be proved ish the contract: Henkel v. Tape (1870), L. R. 6 Ex. 7. and Kinghome v. Montreal Telegraph Co. (1859), 18 U. C. R. 60, followed. The fact of the destruction of the message delivered by the defendants to the telegraph company hewn, and tl secondary evidence of the contents was given by the def"ndants, it wa« inadmissible, and there was therefore no evidence that the transcript delivered to the plaintiffs was incorrect. But the burden of proving 104 WILLS OF LAND. the contract was upon the plaintiffs ; and the admission of the trans- cript in evidence without objection did not render its terms binding upon the defendants. It was not evidence of the order given by th«- defendants ; it was relevant and admissible primary evidence to prove that the order had in fact been transmitted and delivered to the plaintiffs ; but its admission in evidence did not excuse the plaintiffs from making proof of the order by production of the original or by proof of its destruction, or loss and secondary evidence of its con- tents : Fly nn et al. v. Kelly et ah, 12 O. L. R. 1906. A telegram stopping a cheque may, reasonably and in the ordinary course of business, be acted upon by the bank at least to the extent of post- poning the honouring of the cheque until further enquiry can be made ; but, quaere, whether the bank is bound as a matter of law to accept an unauthenticated telegram as sufficient authority for the serious step of refusing to pay a cheque: Curtice v. London City and Midland Banl, 77 L. J. K. P.. 341; (1908), 1 K. B. 293; 98 L. T. 190; 24 T. L. R. 176— C. A. WILLS OF LAND. nte under Probate and Letters of Admini'st ration, page 86. At common law, in order to prove a devise of lands, the will itself must be produced, for probate of the will was not even second- ary evidence, as the Spiritual Court had not power to authenticate the will quoad anything but personalty : B. X. P., 246. A lost will might be proved by a copy otherwise authenticated : Sly v. Sly, 2 P. D. 91; or by oral evidence: Broun v. Brown, 8 E. & B. 876; even though given by an interested witness. It might also be proved by written or oral declarations of the testator made be- fore or after the execution of his will. Effect will be given to a lost will so far as its contents are proved: Sugden v. S. Leonards, Ld., 1 P. D. 154. An interlineation or alteration in a will is pre- sumed to have been made after the execution of it: Shallcross v. Palmer, 2o L. J. Q. B. 867; but in the case of the interlineation of mere words required to complete the sense of the will, if they are written apparently at the same time with the same ink, this presump- tion is not a necessary one : In re Cadge, L. R. 1 P. & M. 543. To prove a will of land it is sufficient to call one of the witnesses if he can speak to all the requisites of attestation: Wright V. Tatham, 1 Ad. & E. 3. Where the witnesses are dead this fact and their hand- writing should he proved: Andrew v. Motley, 12 C. B. N. S. 527; even though the witness of a will should swear that the will was not duly executed, evidence may he adduced in support of the will: Bowman v. Hodgson, I.. R. 1 P. & M. 362. Where one witness gives evidence against due execution the party supporting the will must call the other witness: Coles v. Coles, L. R. 1 P. & M. 70. It does not seem WILLS OF LAND. to be in general necessary to produce evidence aliunde that the form- alities not mentioned in the attestation clause were gone through. A will thirty years old coming from the proper custody will be presumed in the same way as a deed to have been duly executed, although it bear some marks of cancellation: Andrew v. Motley, 12 C. I'.. N. S. 527. The thirty years are to be reckoned from the date of the will being executed: Oldham v. Wolley, 8 B. & C. 22. A will is sufficiently proved by the production of a certified copy when the notice required by 3rd R. S. c. 135, s. 36, has been given. It is also sufficiently attested where the testator could see the witn< i had he chosen to do so, though there was no proof that he did actually see them sign and they were in an adjoining room at the time: Garrigan v. Carri- yan. 2 Old. 8 (N.S.). Probate of a will is now the necessary and only admissible evidence of title: Simpson v. Stewart, 10 M. L. R. 176 (Man.). A registered memorial twenty years old of a will executed by a devisee when :i of the land has been consistent with the registered title, is good evidence of the devise therein contained : Chugh v. McBride, 10 l". C. C. P. 100. specially referred to. Mc- Donald v. McDougall, It; O. R. 401. In ejectment it was proved that defendant had the will, on which pontiffs' title depended, in his possession when it was last seen, and that notice fo produce it and a subpoena duces tecum had been served upon him. Defend dant not having produced it. the registrar of the county produced a memorial of it, which was proved by one of the witnesses thereto, who also swore that he saw one McA. draw the will, and the latter swore that the memorial was a true copy of the will, which had been executed in his presence and thai of another: — Held, that this evidence was properly admitted: Hamilton v. Liyhtbody, 21 U. C. C. P. 126. In ejectment, in proof of the existence of a will, one H. swore that he saw the will, giving an explicit statement of its contents, and it also appeared thai the devisees, of whom the heir-at-law was one. all sub- mitted to and acted upon it: — Held, sufficient evidence of the exist- ence of the will: — Held, also, that the will was sufficiently proved by the execution and registry by the heir-at-law of a memorial of the will, it being a declaration against his proprietary interest and he being dead at the time of the trial. Semble, it was. on this ground, good primary evidence, not only against the heir-at-law and those claiming under him. but against third parties: Broun \. Morrow, 43 U. C. R. 43G. Sections 42 to 41 of the Ontario Evidence Act are as follows: — 42. In order to establish a devise or other testamentary dispo- j n ao tiona sition of or affecting real estate, probate of the will or letters of concerning administration with the will annexed containing such devise or dig- ^L 106 WILLS OF LAND. etc., prim evidence of \v I unless its validity is put in issue. r in the case of will of tili-d m Courts in other British rions. Certificate to be prima facie evidence. position or a copy thereof under the seal of the Surrogate Court grant- ing the same, or under the seal of the High Court, where the pro- bate or letters of administration were granted by the former Court of Probate for Upper Canada, shall be prima facie evidence of the will, and of its validity and contents. 43. Where a person dies in any of His Majesty's Possessions out of Ontario, having made a will sufficient to pass real estate in Ontario, purporting to devise, charge or affect real estate in On- tario, the party desiring to establish any such disposilion, after giv- ing one month's notice to the opposite party to the proceeding of his intention so to do, may produce and file the probate of the will or letters of administration with the will annexed or a certified copy thereof under the seal of the Court which granted the same with a certificate of the Judge, Registrar, or Clerk of such Court that the original will is filed and remains in the Court and purports to have been executed before two witnesses, and such probate or letters of administration or certified copy with such certificate shall, unless the Court otherwise orders, be prima facie evidence of the will and of its validity and contents. 44. The production of the certificate, in the last preceding sec- tion mentioned, shall be sufficient prima facie evidence of the facts therein stated, and of the authority of the Judge, Registrar or Clerk, without proof of his appointment, authority or signature. The fact that a will bears date thirty years before action is not alone sufficient under all circumstances to prove that that is the real age of the writing, even if it comes from the proper custody; but some proof must be given of a concurrent possession of the prop- erty consistent with it, or of the existence of the will for thirty years: Doe d. Stevens v. Clement, 9 U. C. R. fi50. A notice, under 0. S. U. C. c. 32, s. 9, of the intention to use the probate of D.'s will was served ten days before the actual day of trial, though not before the commission day of the assize ; but a similar notice for the preceding assizes was admitted to have been Berved in time. Semble, that the first named notice was served in time, but that the plaintiff could avail himself of the other notice, for such a notice for one assize need not be repeated : — Held, that the fact of the last named notiee Htating the copy of probate to be stamped with the seal of the Surrogate of Ontario instead of the County of York, did not invalidate it: Dehart v. Dehart, 26 U. C. C. P. 489. Where probate of a will is produced at the hearing, in pursuance of notice served under 22 Vict. c. 93, and the opposite party does not serve notice of an intention to dispute the validity of the alleged devise, the probate will be sufficient evidence of such will and of its validity and contents; but if the notice to dispute has been served, and the will does not appear to be duly executed, the WHITS — WRITTEN IN.s'IKCMK- 1<)7 Court will ^ivo liberty to adduce further evidence, by affidavit or otherwise, t" Bhew that the several requisites of 4 Win. I\*. c. 1, nu to the execution of wills, have been duly compiled with: Stewart v. Lees, 24 Chy. 433. It appeared thai search for the will was made in the office in which it would have been had it been admitted to probate; in the different registry offices of the counties in which the several parcels of laud, of which the testator died seii situ- ate ; among the papers of the owners of the several parcels; among t^e papers of the only executor of three named in the will who could be found ; among the papers of the draftsman of the will, and among those of several of the devisees: — Held, sufficient to let in secondary evidence of the will: — Held, also, that plaintiff's case was within s. 26, c. 51, K. S. O., 1877, under which they had served notice: Brown v. Morrow, 43 U. 0. R. 436 (supra). A notice of intention to give a probate in evidence as proof of the will under C. S. D. C. c. 32, s. 9. is available at any trial of the cause, and not merely at the first trial after the giving of the notice: Wilson v. Baird, 19 U. C. C. P. 98. WRITS. A writ must be proved by a copy of the record of it after its return; and this is said to be necessary whenever it is the gist of the action (i.e., ut scmble), wherever it is treated as matter of record in the pleadings: B. N. P., 234: otherwise the writ itself may be produced or secondary evidence given when its non-production is accounted for. If the defendant has to prove a writ the copy served on him by the plaintiff is primary evidence: Stowe v. Qurrner. L. R. 5 Ex. 155. A writ of execution is evidence for the sheriff or his ven- dee as against the execution debtor without producing the judgment; but not against strangers: Batten v. MurJess, 6 M. & S. 110; nor is it evidence for the sheriff's vendee if he be the execution creditor: Bland v. Smith. Holt, N. P. 589. WRITTEN INSTRUMENTS. As to written instruments generally, the Ontario Evidence Act provides : — 49. (1) A party intending to prove the original of a telegram, Popies of letter, shipping bill, bill of lndintr. delivery order, receipt, account l '''' imenta or other written instrument used in business or other transactions. ma y may give notice to the opposite party ten days at least before the admitted ... , . , , . , , , , as evidence trial or other proceeding in which the proof is intended to be ad- ,, n cert;l j n duced that he intends to give in evidence as proof of the contents, conditions. a writing purporting to be a copy of the document and in the notice shall name some convenient time and place for the inspection thereof. 108 TRIALS — SYNOPSIS OF SUBJECTS. Inspection (2) Such copy may then be inspected by the opposite party; and shall without further proof be sufficient evidence of the contents of the original document, and be accepted and taken in lieu of the original, unless the party receiving the notice within four days after the time mentioned for sucu inspection gives notice that he intends to dispute the correctness or genuineness of the copy at the trial or proceeding, and to require proof of the original ; and the costs attend- ing any production or proof of the original document shall be in the discretion of the Court. TRIAL The subjects contained in the remainder of Part I. will be dis- cussed in the following order : General Pbovisions as to Trials. PAGE Sittings 110 Trial of High Court Cases in County Courts and County Court Cases before High Court 113 Transference of Cases L15 Legal and Equitable Issues 115 Defences in Actions on Quebec judgments 116 Discovery 116 Notice of Trial 118 Withdrawing from Trial 119 Juries. Blackstone's Summary of Law 120 Sections from Ontario Act respecting Jurors and Juries 123 Challenges 124 Special Juries 126 Evidence at Trials. Mode in which Evidence must be given 128 Securing attendance of Witnesses 130 TRIALS. 109 Subpoenas 132 Practice as to Witnesses 135 Commissions i" tak>- E\ idence 138 What Casts must be tried by Jury 139 R fusal to Proceed 142 Postpi of Trial 142 Competency of Witnesses 143 Disqualification of Witnesses 145 Swearing of Witnesses 147 Credibility of Witnesses 149 Corroborative Evidence 151 Examination of Witnesses. In chief 152 examination 155 Re-examination 156 Previous Statements 156 Recalling Witnesses 159 Discrediting Witnesses 160 Inference from not calling the Party 160 Contradicting Opponent's Witness 161 Contradicting Party's own Witness 1<>2 < 'anada Evidence Act 164 Right to Decline Answering 165 Evidence of Character 166 Exclusion of Witnesses 167 ( 'omparison of Handwriting 16S Memorandum to refresh Witness's Memory 169 Evidence Omitted by Mistake 170 Impounding Documents 171 The Teial of t he A< tion. Functions of Judge 171 to Begin 174 Right to Reply 176 Addresses to Jury 177 Questions to Jury 181 Inspection of Property 183 110 [ALS — SITTINGS. View by .7 urors 1 83 Blackstone (concluded) !■' Verdict 1 85 Disagreement of .Fury 188 Withdrawing Juror 188 Damages 188 Interest 190 Costs 399 Stay of Execution 199 TRIALS. GENERAL PROVISIONS AS TO TRIALS. SITTINGS. The appointments for sittings for trials are left with the Judges of the High Court under Con. Rule 1897, 113, which is as follows: — 113. The Judges of the High Court of Justice (four of whom shall form a quorum for the transaction of business) shall appoint the days upon which the assizes and sittings for trials shall be held. The preparation of cause lists is the duty of the registrar under Ton. Rule, 1897, 2(5, which is as follows: — Registrars' 26. The following business shall be transacted in the office of office, tne registrars : — business in (6) The preparation of cause lists comprising the following, viz: 1. The setting down of actions for trial at sittings of the High Court in the County of York, and of motions, appeals, and other matters for sittings of the Divisional Courts of the High Court. 2. The setting down of all motions, special cases, and other matters required by the Rules to be set down for the sittings of the Weekly Court at Toronto. 3. The attendance with records, exhibits, and papers on the Court or Judges thereof, and the furnishing to the proper officer on his requisition of all papers and exhibits necessary for the purposes of all motions, appeals, special cases and other matters. 4. The custody of the records, exhibits, affidavits, and papers relating to the matters aforesaid until the conclusion of the same. 8ITTING8. Ill A Judge at nisi priua has authority to make such order at th" time of trial of the causes as t<» him ma] i quisite for the ■ h of the business of the Court, and it is the duty of the attorney and counsel in a cause to attend until the case is disposed of. It is no ground for setting aside a verdict on the BCore of irregu- larity, thai a cause has been tried out of its order in consequence of several causes standing on the ducket before it have been put off by consent to a future day: Bowes V. Sutherland, '1 Kerr 1 (N.I'..). A party who finds himself at the trial without soiue important wit- ness should ask for an adjournment of the trial instead of proceed- ing with the trial. If he proceeds a new trial will not afterwards ! granted: Morice v. Baird, 6 M. L. R. 241 (Man.). Illness of the attorney in a cause is a sufficient ground for putting off a trial — bo also any unforeseen absence of the attorney. Per Allen, C. J. : Jack- son v. MoLellon, vol. 10. 432 (N.B.). Sittings for trials of causes must be held according to the direc- tions of sections 82 to 91 of the Judicature Act, R. S. O. 1897, c. 51.* These sections are as follows : — 82. (1) Subject to rules of Court, as often in every year as the Sittings . . , • i- • .for trial due despatch of business and the public convenience may require f cauget there shall be sittings of the High Court at every county town for the trial of cm uses, matters and issues, whether legal or equitable, in all divisions of the High Court, which are to be heard and deter- mined by a Judge without a jury, and also for the trial of causes, matters and issues in all divisions of the High Court which are to be tried with a jury, and for the trial of criminal matters and proceed- ings ; and in case such first mentioned sittings are appointed at any county town for the same time and before the same Judge as jury cases, separate lists shall be made of the jury and non-jury cases, and the jury cases shall be first disposed of, unless the Judge sees fit to direct otherwise. (2) The Judges of the Hich Court of Justice, or n majority of them, shall appoint the days upon which such sittings shall be held. 83. (1) Subject to rules of Court, not less than two of such Sittings . . ,.,..,,, r , . in each sittings shall be held at the county town of every county and union county of counties in each year. (2) In the county of York, there shall in every year be held at the county town of such county not less than three of such sittings. * Compare R. S. B. C. f c 56, as. 44 to 54. R. S. Man., c. 40. BS. 4'J to 56. R. S. N. B.. c. 112. b. 10 and 11 R. S. N. S., c. 155, ss. 20 to 40. 112 SITTINGS. and also a fourth such sittings, unless the same is not required for the administration of justice, but if the said Judges, on enquiry, ascertain that such fourth sittings for any year is not required for the administration of justice, it shall not be necessary to hold the same or to appoint a day for holding the same. Carleton (3) In the counties of Carleton, Went worth and Middlesex, there v\»nt- shall, in every year, be held at the county town of each of the said Middlesex counties not less than three of such sittings. Additional (4) In addition to the regular sittings to be held under sub- sittings, section 1 of this section, a third such sittings may be appointed if the Judges of the High Court, or a majority of them, shall see fit, for the trial of civil causes, matters and issues, and criminal matters and proceedings, or of civil causes, matters and issues only, to be held at the county town of any county in the province. Judges 84. The Judges of the High Court may appoint sittings of the may nigh Court in any county in the province, as often and at such sittings j n times as they see fit, for the trial of causes which are to be tried anycountj by a Judge without a jury. for issues o be tried g5 T , s j tt j ngs f t jj e High Court for the trial of civil causes, without a jury. matters and issues in any county may, in the discretion of the Judges Separate appointing the days therefor, or of (he Judge who has been appointed 51 in ,^ s to preside or is presiding thereat, be held separate and apart from held for the sittings for the trial of criminal matters and proceedings, either civil and 0Q ^ e same day or on a different day. criminal ,„ '." 86. Such sittings may, at the discretion of the Court or of the Place in county Judge who is to hold the same, be held in the court house of the towns county town in which the same are appointed to be held, or in such court to be other place in the county town as the Judge selects, and the Judge held, shall in all respects have the same authority as a Judge formerly had when sitting at nisi prius in regard to the use of the court house, gaol and other buildings or apartments set apart in the county for the administration of justice. may 87. (1) Such sidings shall be presided over by one of the Judges of the Supreme Court, or in the absence of any such Judge by a retired Judge of the Supreme Court, or by a Judge of any County Court in Ontario, or by one of Her Majesty's counsel learned in the law appointed for T'pper Canada, or for the Province of Ontario, upon such Judge or counsel being requested by a Judge of the Su- preme Court to attend for that purpose. Powers of (2) Such Judge or counsel while holding the sittings shall pos- presidmg gegs exerc j se and enjoy all the powers and authorities of a Judge of the High Court, and in civil proceedings may reserve the giving of his decision upon questions raised at the trial, and such decision Khali have the like force and effect as the decision of a Judge of the High Court. 88. Where the Judge whose duty it is to hold any sittings ol the High Court for the trial of civil causes, matters and issues, and j J )y [j ie for the trial of other matters and proceedings within the jurisdic- sheriff if tion of the Provincial Legislature, does not arrive in time, or is not ■ * '" ' (Ides not able to open such Court on the day appointed for that purpose, the arrive on sheriff of the county in which such Court should be held, or, in his tlie da appi absence, his deputy, may, after the hour of six of the clock in th afternoon of such day, adjourn by his proclamation, the Court which opening should have been opened on that day, to an hour on the following day to be by him named, and so from day to day until the Judge arrives to open such Court, or until such sheriff receives other direc- tion from the Judge in that behalf. 89. (1) No such sittings of the High Court for the trial of causes, 8itti matters and issues, shall open earlier than one of the clock in the _* __„ afternoon on the first day of the sittings, but this shall not prevent a o'clock in non-jury trial from being betrun before one of the clock with the t * r ' noon, consent of the parties. (2) No such sittings shall begin before nine o'clock in the fore- Hours for noon, nor, except for special reasons, extend beyond seven o'clock in the evening, with at least a half-hour's intermission at or near noon. An irregularity under this section shall not render any trial or other proceeding void. 90. All non-jury actions in any county may be entered for trial Entering at any sittings of the High Court in such county, except in the county a^tions^for of York. trial. 91. At the sittings of the High Court or assizes in any county General town there shall be a general docket in addition to the docket of cases "* ,ckt entered for trial, and such general docket may include all motions, sittings of petitions, proceedings and other matters which may be heard by ai,' 1, , _ , Court or Judge in Court or in chambers in any case where the solicitors con- A.--izes. Bent, or where the matter in controversy arose in the county or where the party opposing or showing cause in the matter, or his solicitor, resides in the county. Such general docket shall be disposed of after the trial of causes. TRIAL OF HIGH COURT CASES IN COUNTY COURTS. AND COUNTY COT'RT CASKS BEFORE HIOH COURT. In like manner rules have been made for the trial of TTierh Court oases in County Courts, and County Cour ' >re the High Court, by sections 92 to 96 of the Judicature Act, r. s. o. 1897, c, 51. These ire as follows : K.E.— S 114 HIGH COURT AND COUNTY COURT. Certain 92. ( 1 ) All issues of fact and assessments of damages in the High case- in Court relating to debt, covenant and contract, -where the amount is may liquidated, or ascertained by the signature of the defendant, may be be tried in tried and assessed in the County Court of the county where the trial , 'is to take place, it" the plaintiff desires it, unless a Judge of the High of the Court otherwise orders, and upon such terms as the Judge deems County in . whirl, .I,- ""'"- venue is (2) In such case the action shall be entered for trial, notice of trial shall be given, and the trial take place in the same way as in ordinary cases in such County Court. (3) In any action in the High Court, in which the amount of CflSGS III the High tne demand is ascertained by the signature of the defendant, and in Court may any action for any debt in which a Judge of the said High Court itisfied that the case may be properly tried in a County Court, any Judge of the High Court may order that such case shall be tried Oountvin * n '' le bounty Court of the county, the county town of which is which the named as the place of trial, and such action shall be tried there iction is to accordingly, and the record shall be made up as in other cases and the order directing the case to be tried in the County Court shall be p , left with the clerk of the County Court on entering the action for Lags in trial, annexed to the record; and the trial shall take place in the such case. Bame wa y as ; n ordinary cases in such County Court. By order 93. (i) p y tne or d er of a Judge of the High Court, made upon such terms as the Judge may consider just, the issues of fact and cases may assessment of damages in any action pending in a County Court High may be tried and assessed at the sittings of the High Court at any Court county town. (2) In such cases the action shall be entered and the case tried as in ordinary cases. Powers of 94. Where any such cause is referred by the presiding Judge at Court 3 S1 " '' s ' f, ' u « s ' tne County Court in which the action is brought, and afterwards the Judge thereof, shall have the same power to enforce any award, report or certificate made on the reference, and to make rules and orders upon appeals therefrom and motions relating thereto, as if the order referring the case had been made by the County Judge. Hooks for Section 95 relates to books for Judge's notes of trial, &c. Judge's notes of ^ r »- The jury fees and the fees and charges payable and pertain- tnal, etc. j llL , ,,, officers of the County Courts, upon all actions or proceedings Fees to brought in the County Courts and tried or assessed in the High officers. Court, shall be chargeable and paid as if the same were being tried or assessed in the County Courts ; and no other fees shall be charge- able thereon, and the Clerk of a County Court shall lie entitled to receive and take such part thereof as pertains to him to his own use. In such case Con. Rules 1897, 564 and 565 apply. These rules are as follows ; 1 15 5G4. In an action in a County Court entered for trial at any powers of Bittings of ihf lli^li Court the Judge presiding at the sittings shall , ' 11\ i ]17 of th.- opposite party by giving a notice (ac< Form No. 60) to the solicitor of such opposite party, and shall be entitled to ink- ',',. a ' ll "" B copies of such documents when so produced for inspection. affidavit. (2) Any part; not producing any do< umenl in compliance with ■uch notice shall not afterwards be at liberty to use the document in evidence in the muse, matter or proceeding, unless he satisfies the Court or Judge, as the case may be, that he had some sufficient cause for nol complying with the notice. 470. The party to whom such notice is given shall within two Notrice to days from the receipt thereof deliver to the party giving the same'" 81 * 01 ' a notice (according to Form No. 61) stating a time within three days from the delivery thereof at which the documents may be in- spected at the office of his solicitor, and stating which if any of the documents he objects to produce and on what ground.* 471. If the party served with such notice omits to give such • ) '' der f . or .. e .i • inspection notice of the time for inspection, or omits or objects to give such on default, inspection, the party desiring it may apply to a Judge of the High Vl '"'". '"" Court for an order for inspection. ^ 472. If the party from whom discovery of any kind or inspection t,J ' is sought, i . , the same or any part thereof, the Court or a Judge, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute iu * Con. Rule, 470. Compare B. C. Rule. 288. N. S. Rules, Order XXX.. e. 17. Man., c. 40. Rule -117. N. W. T., c. 21. Order XX.. s. 195. Con. Rule, 471. Compare B. C. Rule, 2i N. S. Rules, Order XXX.. s. 18, s.-s. I. Man., c. 40. Rule 418. N. W. 'I'., c. 21, Order XX.. s. 196. Con. Rule, 172. Compare B. C. Rule, 290. Man., c. 1<\ Rule 420. N. S. Rules, Order XXX., s. 19. N. W. T., c. 21. Order XX.. s. 107. Con. R. 17::. Compare B. C-, none. Man., c. 40, Rule 421. N. S. Rules. Order XXX., s. 20. N. W. T.. c. 21. Order XX.. s. l! IKS NOTICE OF TRIM . Conse- quen disobeying an order for dis- ci ) very . Service of notice on solicitor, when suffi- cient. the action, or that for any other reason it is desirable that any issue or question in dispute should be determined before deciding upon the righl to the discovery or inspection, may order that such issue or question be determined hrst, and reserve the question as to the discovery or inspection. 473. If a party fails to comply with any order for production or inspection of documents, he shall be liable to attachment. He shall also be liable if a plaintiff to have his action dismissed, and if a defendant to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party who obtained the order for production or inspection may apply to the < ourt or a Judge for an order to that effect, and an order may be made accordingly. 474. Where the application for such last mentioned order is made by reason of default in production of books and papers in the master's office, or pursuant to an order to produce, or in carrying in accounts, service of the notice of motion upon the solicitor of the party required to obey the same is to be sufficient service. 10 days' notice. Short io- tice, 5 Entry for trial. Time of entry for trial. Non-jury aotions. Setting down and notice of trial in non-jury cases, York. NOTICE OF TRIAL. C. R. 538.* Except in the cases provided for by Rule 542 : (a) Notice of trial shall be given before entering an action for trial, and may be according to Form No. 65. (6) Ten days' notice of trial shall be given and shall be suffi- cient in all cases, unless otherwise ordered by the Court or a Judge. Short notice of trial shall be five days' notice. (c) After notice of trial is given either party may enter the action for trial. If both parties enter the action for trial at the same sitting it shall be tried in the order of the plaintiff's entry. (d) Actions shall be entered for trial not later than the third day next before the first day of the sittings, but the Judge at the trial may permit any action to be entered after the time above limited. (e) An action which is to be tried without a jury may be entered for trial at: any sittings appointed for the place named for the trial of such action. 542. (1) Actions to be tried at Toronto without a jury may be set down for trial by either party immediately after the close of the pleadings. * Compare B. O. Rules. 339 to 340. R. S. Man., c. 40, ss. 552, 553, 555 to 557. N. S. Rules, Order XXXIV., ss. 10 to 18. WITHDB LWING FROM 1 Kl IL. ! 19 (2) Notice of trial (which may be according to Form No. 66) shall be given by the party setting down the action for trial within two days thereafter, mum he shall within four days after so setting down the action file the notice of trial and proof of the service thereof with tin- officer by whom the action was set down. (3) Where default is made in filing the notice of trial as afore- said, any party who has been served therewith may within 4 days after such default file in like manner the notice of trial served on him and proof of the service thereof. (4) Where a notice of trial is filed as aforesaid, the action shall be placed by the proper officer upon the list of cases for trial upon tiie expiration of three weeks from the date of the setting down. (5) If more parties than one have caused the action to be placed on the list of cases for trial it shall be tried in the order of the first entry. By Con. Rule 1897, 532: "The trial of questions or issues of fact by a jury shal! be held before one Judge unless otherwise ordered." Trials at bar may also be had under the provisions of Con. Rules, 1897, 533 to 536, inclusive. These rules are as follows : — 533. A party may within thirty days after issue joined, apply to Trials at the Divisional Court for a trial at bar, and the Court may, in its ' to f discretion, upon hearing the parties, grant or refuse the same. suitors. 534. Where the Crown is actually or immediately interested a On the trial at bar may be had as of right, upon, and shall be regulated and *', lirt Crown. governed by, the same principles as in similar cases in England. 535. Where a trial at bar is directed, the President of the High Whtn trial Court may appoint the day for the trial. to be had. 536. Notice of a trial at bar shall be given to one of the regis- Notice of trars of the Court before giving notice of trial to the party.* trial at WITHDRAWING FROM TRIAL. 543. t An action may be withdrawn from trial by either party With- upon producing a consent in writing signed by the other, but not ^ectn-'l 1 % otherwise except by order. consent. 544. Actions not tried or disposed of after being once entered for Actions trial shall remain for trial, and shall not except in the case of act ions not tried. * C. R. 533 to 536. Compare R. S. Man., s. 40, ss. 549 to ■" t Compare B. C. Rules, 353 and 354. R. S. Man., c. 40, ss. 559 to 562. N. S. Rules, Order XXVI., s. 2. Order XXXIV.. ss. 22 and 23. R. S. N. W. T., c. 21. vol. I., b. 175. 120 JURIES. entered for trial without a jury at Toronto, be heard at any subse- quent sittings unless and until a fresh notice of trial is given. Nn': 545. If when an action is called on for trial, the plaintiff appears pearanceof & ^ tfae de f em ] ant (j oes not) tne plaintiff may prove his claim as far as the burden of proof lies upon him. Non ap- 54^ if when an action is called on for trial the defendant ap- pfamtifT ° P ears aQ d 4 ^ e plaintiff does not, the defendant, if he has no counter- claim, shall be entitled to judgment dismissing the action ; but if he has a counterclaim he may prove such claim as far as the burden of proof lies upon him. JURIES.* But we will now suppose all previous steps to be regularly settled and the cause to be called on in Court. The record is then handed to the Judge to peruse and observe the pleadings, and what issues the parties are to maintain and prove, while the jury is called and sworn. To this end the sheriff returns his compulsive process, the writ of habeas corpora or distringas, with the panel of jurors annexed to the Judge's officer in Court. The jurors contained in the panel are either special or common jurors. Special jurors were originally intro- duced in trials at bar when the causes were of too great nicety for the discussion of ordinary freeholders, or where the sheriff was sus- pected of partiality, though not upon such apparent cause as to warrant an exception to him. A common jury is one returned by the sheriff according to the directions of the statute 3 Geo. II. c. 25, which appoints that the sheriff or officer shall not return a separate panel for every separate cause as formerly ; but one and the same panel for every cause to be tried at the same assizes, containing not less than forty-eight or more than seventy-two jurors ; and that their names being written on tickets shall be put into a box or glass ; and when each cause is called twelve of these persons whose names shall be first drawn out of the box shall be sworn upon the jury, unless absent, challenged or excused ; or unless a previous view of the messuages, lands or place in question shall have been thought necessary by the Court ; in which case six or more of the jurors returned to be agreed on by the parties or named by a Judge or other proper officer of the Court shall be appointed by special writ of habeas corpora or distringas to have the matters in question shewn to them by two persons named in the writ, and then such of the jury as have had the view or so many of them as appear shall be sworn on the inquest previous to any other jurors. These Acts are well calculated to restrain any suspicion of partiality in the sheriff or any tampering with the jurors when returned. As the jurors appear ♦Blackstone, continued. JDH] 121 when called they shall be Bwom unless challenged by either party. Challenges are of two sorts, challenges to the array and challenges to the polls. Challenges to the array are at once an exception to the whole panel in which the jury are arrayed or set in order by the sheriff in his return ; and they may be made upon account of partiality or some default in the sheriff or his under-officer who arrayed the panel. And generally speaking the same reasons that before the awarding the venire were sufficient to have directed it to the coroners or elisors, will be also sufficient to quash the array when made by a person or officer of whose partiality there is any tolerable ground for suspicion. And also, though there be no personal objection against the sheriff, yet if he arrays the panel at the nomination or under the direction of either party, this is good cause of challenge to the array. Challenges to the polls in capita are exceptions to particular jurors. By the laws of England in the times of Bracton and Fleta a Judge might be refused for good cause, but now the law is otherwise, and it is held that Judges and justices cannot be challenged. For the law will not suppose a possibility of bias or favour in a Judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea. And should the fact at any time prove flagrantly, such as the delicacy of the law will not presume beforehand, there is no doubt but that such misbehaviour would draw down a heavy censure from those to whom the Judge is accountable for his conduct. But challenges to the polls of the jury (who are judges of fact) are reduced to four heads by Sir Edward Coke, propter honoris respectum ; propter defectum; propter affectum; and propter delictum. 1. Propter honoris respectum; as if a lord of parliament be impanelled on a jury, he may be challenged by either party, or he may challenge himself. 2. Propter defectum; as if a juryman be an alien born, this is defect of birth ; if he be a slave or bondman this is defect of liberty, and he cannot be lioer et legalis homo. 3. Jurors may be challenged propter affectum for suspicion of bias or partiality. This may be either a principal challenge or to the favour. A principal challenge is such where the cause assigned carries with it prima facie evident marks of suspicion either of malice or favour; as that a juror is of kin to either party within the ninth degree, that he has been arbitrator on either side, that he has an interest in the cause; that there is an action depend- ing between him and the party: that ho had taken money for his verdict: that he has formerly been a juror in the same cause: that he is the party's master, servant, counsellor, steward or attorney. or of the same society or corporation with him. All these are prin- cipal causes of challenge, which, if true, cannot be overruled, for jurors must be omni crceptione majorcs. Challenges to the favour are where the party hath no principal challenge, but objects only some probable circumstances of suspicion as acquaintance and the like, the 122 JURIES. validity of which must be left to the determination of triors, whose office it is to decide whether the juror be favourable or unfavourable. The triors in case the first man called be challenged are two indif- ferent persons named by the Court ; and if they try one man and find him indifferent he shall be sworn, and then he and the two triors shall try the next, and when another is found indifferent and sworn the two triors shall be superseded, and the two first sworn on the jury shall try the next. 4. Challenges propter delictum are for some crime or misdemea- nour that affects the juror's credit and renders him infamous, as for a conviction of treason, felony, perjury or conspiracy. A juror may himself be examined on oath of voir dire veritatem dicere with regard to such causes of challenge as are not to his dishonour or discredit, but not with regard to any crime or anything which tends to his disgrace or disadvantage. Besides these challenges, which are excep- tions against the fitness of jurors, and whereby they may be excluded from serving, there are also other causes to be made use of by the jurors themselves which are matter of exemption whereby their service is excused and not excluded. If by means of challenges or other cause a sufficient number of unexceptionable jurors doth not appear at the trial, either party may pray a tales. A tales is a supply of such men as are summoned upon the first panel in order to make up ine deficiency. For this purpose a writ of decern tales octo tales and the like was used to be issued to the sheriff at common law. and must be still so done at a trial at bar if the jurors make default. But at the assizes or nisi prius by virtue of statute 85 Hen. VIII. c. R. and other subsequent statutes, the Judge is empowered at the prayer of either party to award a tales de cir cum stantibus of persons present in Court to be joined to the other jurors to try the cause, who are liable, however, to the same challenges as the principal jurors. This is usually done till the legal number of twelve be com- pleted. When a sufficient number of persons impanelled or tales- men appear they are then separately sworn, well and truly to try the issue between the parties, and a true verdict to give according to the evidence, and hence they are denominated the jury jurata, and the jurors »e. juratores. A new trial was ordered upon payment of costs, where it was shewn that one of the jurors was not selected to be of the panel, that another was so deaf that he was not able to hear some of the most important evidence, and that a third was in such friendly relations with the defendants, an incorporated company, as should have induced him to decline to sit on the trial: Cameron v. Ottawa Electric R. W. Co.. 32 O. R. 24. Attempting to dissuade a witness from giving .11 R0R8 \< r. 1 23 evidence is such misconduct on the pari of a juror us would justify tne granting of a new trial: Laughlin \ Harvey, 24 A. El. 438. The Court will not grant a new trial because one of the jurors lias not been sworn, where no injustice is done thereby: Goose v. (hand Trunk R. W. Co., 17 < >. K. 721. During the trial of an action for libel the defendants published in their newspaper a sensational article wiili reference thereto. The plaintiff's solicitor was aware that the article had come to the hands of one or more of the jury, but did not biing the matter to the notice of the Court or take any action with respect to it, and proceeded with the trial to its close, when the jury brought in a verdict for the defendants. Upon a motion for a new trial upon the ground of improper conduct towards and un- due influence upon the jury: — Held, that the objection was too late: Tiffany v. McNee, Metcalfe v. McNee, 24 O. R. 551. Where the plaintiff during the trial had conversation with mem- bers of the jury upon the subject <>f his case, and his brother and also his solicitor had treated some of them to "drinks" during the recess of the Court, the verdict was set aside, and a new trial ordered : Stewart v. Woohnan, 2<'> 0. R. 714. SELECTED SECTIONS FROM THE ONTARIO ACT RESPECT- IXC JURORS ANT) .TITHES. ONT. STATS, 1900, C. 34. 87. The omission to observe any of the directions in this Act as Omissions respects the qualification, selection, balloting, and distribution °ffchedirec- jnrors. the preparation of the jurors' book, the selecting of jury lrsts lions of from the jurors' rolls, the drafting of panels from the jury lists, J^toviti- or the striking of special juries, shall not bo a ground of impeaching a te the the verdict or judgment in any action. verdict. 111. (1) It shall be a contempt of Court for any person in- Tampering ,. . , with jur- terested in an action in any Court, or his solicitor, counsel, agent or emissary before or during the sittings of Court at which the ac- tion is, or is to be, entered for trial or may be tried, or at any time after a juror has been summoned, knowingly, directly or indirectly to speak to or consult with a juror upon the jury panel for such Court rospectinc: such action, or any matter or thing relating thereto. (2) Where a solicitor or barrister or student at law or articled Barrister, .... .. solictor or clerk is guilty of such offence he may in addition to any other pen- 8tul j en ij to ally be struck from the roll of solicitors or be disbarred or suspended be dis- from the practice of his profession for a limited time, or his name Jj^J™^ may be erased from the list of the T.aw Society or removed there- Compare R. S'. R. C, c. 107, s. 07. R. S. Man., none. I! S. X. R-. none. Ord. N. W. T.. none. R, S. X. S.. c. 162, s. 73. 124 CHALLENGES. from for a limited time by the High Court upon motion at the in- stance and in the name of the Attorney-General. Exception (3) This section shall not apply where a juror is also a party to ;.iw^ 6 ;<, o or a known witness or interested in the action or is otherwise in- juior is <* party or eligible as a juror in the action, nor to anything which may properly witness. ta j. e p] ace j n the course of the trial or conduct of the action. By Con. Rules 1897, 22 (in), preparing precepts for summoning juries and transmitting them to the proper officer is one of the duties of the records and writs office. CHALLENGES. The want 74.* (1) If any person not duly qualified is drawn as a juror o qualin- j Qr ^ e trial of any issue in any matter or proceeding, the want of good such qualification shall be a good cause of challenge ; but the want ground of j a su ffi c i en t property qualification shall not be a good cause of challenge. . Proviso challenge, nor a cause for discharging the juror upon his own appli- cation. In civil 75. In any cause the plaintiff or plaintiffs, on one side, and the cases, each defendant or defendants, on the other, may challenge peremptorily pai tv may challenge any four of the jurors drawn to serve on the trial ; and such right four per- f caa n e nge shall extend to the King, when a party. emptorily. Not to ap- 76. The two next preceding sections shall not apply to special Plytospe- . cial jurors. * Ratepay- 77. In a matter or proceeding to which a municipal corporation ers, ora- other than a county is a party, every ratepayer and every officer or cern, etc., of corpora- servant of the corporation shall, for that reason, be liable to chal- tion.may lenge as a juror, be chal- lenged as It is no ground for a challenge to the array that the jury was juror3. summoned by a coroner who was the deputy sheriff of the county, who was disqualified by reason of being a ratepayer in the town the corporation whereof were the defendants in the action, or that the coroner summoned the jury under a notice by the clerk of the cir- cuits, pursuant to s. 18 of c. 126, C. S. N. B. 1903, and no venire was issued : Millmore v. Town of Woodstock, 38 N. B. R. 133. The fact that a juror was related to the plaintiff's wife, which was not known to either party or their attorneys at the time of the trial, and that two other jurymen were open to challenge on the ground that they had not the necessary property qualification, are not grounds * Compare R. S. B. C., c. 107, s. 65. R. S. Man., c. 92. es. 75 to 77. R. S. N. B.. e. 126, ss. 29 and 30. R. S. N. S., c. 162, s. 55. Ord. N. W. T., c. 28. s. 7. CHA] 125 trial: Nadeau v. Theriovlt, ."J7 \. i:. 11. ids. Where the jury panel has been exhausted by reason of some of the jurors I ..ut in case, the presiding Judge may din summoned : Ibid. It is no ground for challenging the jury that the sheriff is one :>f the parties to the suit: ilarris v. McKenzie, 2 242 (N.S.). It is a matter for the discretion of the Court whether a defect in the jury lists or iu the panel, which has not been made a ground of objection at the trial, is a sufficient cause for selling aside a verdict. The omission of the residences and occupations of the jurors in the lists returned by the justices : — Held, sufficient ground for quashing indictments found by the grand jury and for Betting aside special jury panels in causes not tried, but not sufficient to disturb verdicts in causes where the objection was not made at the trial unless it be shewn that injustice has been done: Lessee of Seaman v. Campbell, James, 94 (N.S.). When the facts stated in the challenge would not be necessary to disqualify the sheriff from summoning the jury and might or might not render him partial, the challenge is to the favour and it should in the addition to the facts relied on contain an allega- tion that the sheriff was not impartial, otherwise it is bad : Semble, A venire may be issued to a corone- on a suggestion on a record that the sheriff for the reasons stated is not impartial: Brown v. Maltby, et al., vol. 20 (2) (N.B.). It is no ground for challenge to the array that the sheriff who summoned the jury is a ratepayer of the de- fendant municipality: Mellon v. Municipality of Kings, vol. 33 (8) (N.I>.). The defendant may challenge the array if affinity exists between the sheriff who summoned the jury and himself: Welmore v. I.evy, 5 All. 180 (N.R.). At the trial of an action the defendant's counsel challenged a juryman for cause. On the trial Judge stating that he did not think any cause was shewn, and that the counsel had better challenge peremptorily, the counsel did not claim the right to try the sufficiency of any cause against the impartiality of the jury- man, but accepted the opinion of the Judge, and the juryman remained on the jury: — Held, that on a motion for a new trial an objection to the juryman could not he entertained. The action was tried at B. and a new trial was moved for at a place other than B.. because the jury there were biassed against defendant: — Held, that this formed no ground for a new trial : Wood v. McPherson, 17 O. R. 163. The defendants having delivered separate defences and being separately represented at the trial, claimed to be entitled under the Jurors Let, R. S. O. 18S7, c. 52, s. 110, to four peremptory challenges each which, though objected to by the plaintiff, was conceded by the Judge, and the defendants challenged six jurors between them, and the trial proceeded, resulting in a verdict for the defendants: — Held, upon motion by the plaintiff, thai there had been a mis-trial, and the plain- tiff was entitled to a new trial. Under the above section the de- 126 CHALLENGES. fendants were only entitled to four peremptory challenges between ttem. and inasmuch as the plaintiff took the objection at the time he had not waived his right to complain by proceeding with the trial : Empey v. Carscallen, 24 O. K. 658. It is no ground of challenge to a juror in an action brought by a corporation that he is in the employ of one of the stockholders in the company : Frcdericton Boom Co. v. McPherson, 2 Han. 8 (N.rt.). The fact that one of the jurors was nearly connected by marriage with the plaintiff was held to be no ground for setting aside a verdict for plaintiff, where it was not dis- closed that the affinity continued at the time of trial, or that there was any issue of the marriage still living, or anything else from which it could be inferred that the mistake was productive of any injustice, and where it appeared that the defendant was aware of the connection before the trial was over, but took no exception till he found that the verdict was against him: Hart v. Pryor et al., 1 R. & C. 53 (N.S.). A challenge lies both to the array of the grand jury and to the polls as in the case of a petit jury. Remote, that the reasons for quashing the panel (as for favour), which were founded on the discretion of the sheriff in selecting jurors, do not apply at the present time, as the sheriff empanels the jury from lists of selected jurors prepared for him. But a substantial departure of the sheriff from statutory directions might lay the panel open to challenge on the ground of default of the sheriff: Reg. v. Anderson, T. W. 177 M. L. R. (Man.). It is too late to challenge a juror after he has been sworn, even if the ground for challenge was not known at the time. Ignorance of the English language would not in this Province be a ground of challenge of a juror: Reg. v. Earl, 10 M. L. R. 303 (Man.). The Ontario Jury Act, 1909, provides as follows : — SPECIAL JURIES. _.., 78. (1) In any case whatever, whether civil or criminal, triable rjittier party may by a jury, excepting only indictments for treason or felony, His strike a Majesty or any prosecutor, relator or plaintiff and any defendant special . . . jury. ma 7 have the issues joined tried by a special jury upon procuring such special jury to be struck and summoned for the day on which the trial of such case is to be had and the jury so struck shall be the jury returned for the trial of the issues. Notice to (2) The party desiring the special jury shall give notice in opposite writing thereof to the opposite party, after the close of the pleadings party. and at least eight days before the first day of the sittings at which the case is to be tried. Order f be tried, give notice to the sheriff that the case is to be tried by a special jury, and if no such notice is given no special jury need be struck or summoned, and the case may be tried by a common jury, unless otherwise ordered by the Court or a Judge- (">• The sheriff shall thereupon in writing appoint some con- Appoint venient day and hour for striking the special jury, sufficiently distant "" '^ , enable the party requiring the special jury to give notice to the special opposite party, and the party requiring same shall Berve a copy of J ,ir - V such appointment upon the opposite party of his solicitor four clear days before the day so appointed, and in default thereof, the sheriff shall not proceed to strike the special jury. (6) If a party does not attend, in person or by solicitor, at the How to striking of the special jury, the sheriff, upon proof of service of the 1 '"; 1 ' appointment, and after waiting half an hour for the absent party, party fails shall, if requested by the other party, or his solicitor, proceed to toatten< *- strike the special jury, and in case of the continued absence of such first mentioned part}-, the sheriff shall, on his behalf, strike off the list the twelve names which such party is entitled to strike off the list as hereinafter provided. 79. A special jury shall, except as hereinafter provided, consist Qualifica- of persons whose names appear on the roll of grand jurors for the gpecid High Court or on the roll of grand jurors for the inferior Courts jure for the year in which the notice to the sheriff is given. 84. The party who gives notice to the sheriff for a special jury, The party or the party who upon his default has requested the sheriff to pro-™^^)'* eeed under subsection G of section 78, shall pay the fees for striking the jury to such special jury, the fees of the jurors and all the expenses occasioned P a Y /.** es °« striking, by the trial by the special jury, and shall not have any further or etc. other allowance for the same upon taxation of costs than if the case had been tried by a common jury, unless the trial Judge certifies in open Court, immediately after the verdict, or afterwards upon notice at Chambers, that the case was proper to be tried by a special jury. The tact that a member of a special jury was one of the jurors at a former trial is a good ground of challenge at a new trial, but the fact that such a juror served without challenge is not per %e a < 'ompare R. S. B. C, c. K>7, ss. ."> to 64. R. S. Man., c. <>'_>, ss. CO to 67. R. S. N. B., c. 126, ss. 35 to 42. R. S. N. S.. c. 162, s. 62. Ord. \. W. T., c. 28, ss. 17 and 18. 128 EVIDENCE AT TRIALS. ground for granting a new trial: — Held, that in selecting a special jury it was the duty of the solicitor to ascertain any grounds of challenge, an opportunity to do which is provided: Harris v. Duns- muir, 9 Brit. Col. L. It. iiOZ. Where a defendant applies for a special jury he must do so in time to permit of the jurors being summoned, otherwise the common jury will not be held to be superseded : Clandinan v. Dickson, 8 U. C. K. 2S1, 9 U. C. K. 2G6. There must be four clear days' notice of strik- ing a special jury ; therefore a notice given after 11 a.m. on Saturday for 11 a.m. on Tuesday is not sufficient : Bell v. Flintoft, 3 U. C. R. 122. R. S. O. 1897, c. 61, s. 117, requires four full days. If a special jury be struck previous to an assize, and the cause is irregularly tried at that assize by a common jury, and the verdict afterwards set aside, it is irregular to try the cause a second time by a common jury, no new special jury being struck: McMartin v. Powell, T. T. 3 & 4 Vict. An application for a certificate for a special jury must be made Immediately after the trial : Binkley v. Dejardine, Tay. 177. The trial Judge certified for the defendant's costs of a special jury summoned at his instance : Farquhar v. Rooertson, 13 P. R. 156. An application for a special jury may be made in chambers, but is more proper be- fore the assize Judge. It is not necessary to give any reason for requiring a special jury. A plaintiff may obtain an order for a spe- cial jury ex parte. A defendant shall move upon summons, but not necessarily before entry of the record : The Molsons Bank v. Rooert- son, 5 M. L. R. 343 (Man.). EVIDENCE AT TRIALS. MODE IN WHICH EVIDENCE MUST BE GIVEN. The Consolidated Rules of Practice provide as follows : — * 483. In the absence of an agreement between (he parties and subject to these rules, the witnesses at the trial of an action or at *Con. Rule, 483. Compare B. C. Rule. 365. N. S. Rules. Order XXXV., s. 1. Man., c 40. Rule 462. N. W. T.. c. 21, Order 26, s. 263. ( "on. Rule. 484. pare T!. V. : none. N. S. Rules, Order XXXIV . Man., c. 40. Rule I N. W. T.. none. ;:\ [DENCE \T 'II;. an assessment of damages shall be examined viva voce and in < ourt, bul the Court or a Judge of the High Court may at any time for sufficien! reason, order that any particular fact or fi proved by affidavit, or that the affidavit of any witness may b< at the trial on such conditions as may seem just, or thai any i whose attendance ought for some sufficient cause to be dispensed with be examined before an examiner; but where the other party bona fide desires the production of a witness for cross-examination, and such witness can be produced, an order shall not be made authorizing his evidence to be given by affidavit. 484. All witnesses iu any matter pending before a master or referee shall give their testimony viva voce before the master 01 referee, unless it is otherwise ordered by the master or referee, or by the Court or a Judge on special grounds, or unless with the coi of the parties. 485. (1) The Court or a Judge may, in any cause or matter where it appears necessary for the purposes of justice, make an order for the examination upon oath before an officer of the Court, or any other person and at any place, of any person ; and may order any deposition so taken to be filed in the Court, and may empower any party to the cause or matter to give such deposition in evidence therein on such terms as may seem just. (2) Such examination shall, unless otherwise ordered, be con- ducted in accordance with the practice upon examinations for dis- covery in so far as the same is applicable. mi trial to be i iva Evidence Master epos tions. Con. Rule, 485. ( lompare 15. C. Rule, 3G8. Man., c. 41), Rule 464. Con. Rule, 486. Compare B. C., none. Man., none. N. S. Rules, Order XXXV., s. :;.\. X. W. T., c. 21, Order 26, s. 2 X. S., none. X. W. T.. e. 21. Order 26, s. 280. Con. Rule, 487. Compare B. C. R.. 306. Man., c. 40. Rule 472. X. S. Kuls, Order I. XIV., s. 2. X. W. T.. i Con. Rul : 488. Compare B. C. R, 359. Man., c. 40, Rule 471. X. S. Rule.. Order XXXIV.. 530. X. W. T.. none. k.e. — 9 130 SECURING ATTENDANCE. Copies of 486. Where an examination of a party or witness has been taken deposi- before a Judge of the High Court, or of a County Court, or before tions certi- lied by per- another officer or person appointed to take the same, copies of such son taking examinations and depositions certified under the hand of the Judge, admissible omcer or other person taking the same, shall without proof of his in evidence signature be received and read in evidence saving all just exceptions. Evidence 437. Service of a notice to produce may be proved by an affidavit of notice °^ tDe solicitor in the cause or his clerk. 488. In actions for libel or slander, in which the defendant does Lilw'l or slander, not by " ls defence assert the truth of the statement complained of, particulars ne shall not be entitled on the trial to give evidence in chief, with a in mitiga- v * ew to mitigation of damages, as to the circumstances under which tion. hie libel or slander was publisned or as to the character of the plain- tiff without the leave of the Judge, unless seven days at least before the trial he furnishes particulars in writing to the plaintiff of the matters as to which he intends to give evidence. SECURING ATTENDANCE OP WITNESSES. The process to compel the attendance of witnesses is the writ of subpoena ad testificandum: Edgell v. Curling, 7 M. & Gr. 95S. Either the writ or a copy of it must be personally served on the witness; and where a copy only is delivered the original must be shewn whether the witness requires it or not; otherwise he cannot be attached : Wadsworth v. Marshall, 1 C. II. & M. 87. It must be served so as to give witnesses " reasonable time to put their own affairs in such order that their attendance may be with as little prejudice to themselves as possible:" Hammond v. Stetoart, 1 Stra. 510; but ur- gent domestic business is no excuse for disobedience : Goff V. Mills, 2 I). & L. 23. Where the person is present in or attending near the Court, service on the day of trial may be sufficient under the circum- stances: Maunsell v. Ainsworth, S Dowl. 869. Whether the service be sufficient is for the Judge, not the jury: Barber v. Wood, 2 M. & Rob. 172. If the cause be made a remanet the subpoena must be re- sealed and re-served : Sydenham v. Rand, 3 Doug. 429. Though the writ only requires attendance on the commission day, the witness must attend for the whole assizes till the ease comes on: Scholes V. Hillon, ]0 M. & W. 1- r >. Although as a general rule a writ of sub- poena may be served at any stage of the proceedings in an action, yet service at a time when, to the knowledge of the parties, the ac- tion cannot possibly be trieu during the current sittings amounts to an abuse of the process of the Court, and ought to be set aside: London and Globe Finance Corporation v. Kaufman, 69 'L. J. Ch. 196 ; 48 W. R. 458. A witness in a civil suit is not bound to at- tend unless the reasonable expenses of going to and returning from the place of trial, and of his stay there, are tendered to him at the ALLOWANCE TO W I 1 S E 181 time of serving the subpoena; nor if he appears is he bound to give public evidence before such expenses are paid or tendered. J'..v Con. Rule, officers not .', 1151, .1 pi lie official or other witness Bubpoenaed or called pro j upon to produce before the Court or a Judge or officer any public orsional wit- other document, is nol entitled to more than ordinary v, ; nesstees. unless the Court or Judge or officer otherwise orders. The allowance to witnesses is regulated by the following items of the tariff B. an- nexed to < !on. Rule. 1897 : — * Allowance to Witnesses. Higher Scale. High Court and Court of Appeal. County Courts. 117. To witnesses residing within three miles of the $1 00 1 25 4 00 4 00 $1 00 118. To witnesses residing over three miles from the 1 25 119. Barristers and solicitors, physicians and surgeons, other than parties to the cause, when called upon to give evidence in consequence of an}' professional service rendered by them, or to give professional opinions, per diem 120. Engineers, surveyors, and architects, other than parties to the cause, when called upon to give evidence of any professional service rendered by them, or to give evidence depending upon 4 00 4 00 121. If witnesses attend in one case only they will he entitled to the full allowance. If they attend in more than one case, they will be entitled to a proportionate part in each cause only. 122. The travelling expenses of witnesses over three miles shall be allowed according to the sums reasonably and actually paid, but in no case shall exceed twenty cents per mile one way. Section 16 of Ontario Evidence Act is as follows : — 10. A witness served in due time with a subpoena issued out of any Court in Ontario and paid his proper witness fees and conduct money who shall make default in obeying such subpoena without any lawful and reasonable impediment, shall in addition to any penalty he may incur as for a contempt of Court, be liable to an action on the part of the person by whom, or on whose behalf, he shall have been subpoenaed, for any damage which such person may sustain or be put to by reason of such default. Witness disobeying subpoena liable to action. * X. S., C L85 (Supreme Ct. tariff). SUB P( KNAs. Sub} Subpana to produce original record not to issue without order. Any number of names may be in- cluded in ■inbpa-na. Calling nite party. Bench warrants . Subpoenas: The Consolidated Rules provide as follows : — 478. A writ of subpoena shall bear date upon the day when the same are (sic) issued. 479. A subpoena for the production of an original record or of an original memorial from any registry office shall not be issued unless the order of the Court or a Judge is produced to and filed with the officer issuing the same, and the writ shall conform to the description of the document in the order. 480. Any number of names may be included in one subpoena, and no more than one subpoena shall be allowed on taxation of costs unless a sufficient reason be established to the satisfaction of the taxing officer for issuing more than one. 481. Wherever a party desires to call the opposite party as a witness at the hearing or trial, he shall either subpoena such party, or in case such party is within the jurisdiction, give him or his solicitor at least eight days notice of the intention to examine him as a witness in the cause, paying at the same time the amount proper for conduct money; and if such party does not attend on such notice or subpoena, such non-attendance shall be taken as an admission pro confesso against him in any such action, unless otherwise ordered by the Court or Judge in which or before whom such examination is pending, and a general finding or judgment may be had against the party thereon, or the plaintiff may be non-suited, or the proceedings in the action may be postponed by the Court or Judge on such terms as the Court or Judge sees fit to impose. 482. (1) Upon proof, to the satisfaction of the Judge presiding at the sittings of any Court, of the service of a subpoena upon any witness who fails to attend, or to remain in attendance in accordance with the requirements of the subpoena, and that a sufficient sum for his fees as a witness had been duly paid or tendered to him, and that the presence of such witness is material to the ends of justice, the said Judge may by his warrant directed to any sheriff or other officer of the Court, or to any constable, cause such witness to be apprehended and forthwith brought before him or any other Judge who may thereafter preside at such sittings, to give evidence ; and in order to secure his presence as a witness, such witness may be taken on such warrant before the presiding Judge, and detained in the custody of the person to whom the warrant is directed, or otherwise, as the presiding Judge may order, until his presence as such witness is required, or in the discretion of the said Judge he may be released on a recognizance (with or without sureties) conditioned for his appearance to give evidence. SUBPCENAS. iaa (2) The warrant may be according to Form No. 1)3, and may be executed in any part of Ontario. Where after close of plaintiff's case he is allowed to examine the defendant, this docs not re-open the matter so as to entitle him to call other witnesses: Wilkes v. Heaton, 17 D. C. tt. 05. A party calling the opposite party as e s, makes him his witness to all intents and purposes: Dunbar v. Heel;, '.VJ. !'. C. C. P. 105. When a party to a suit calls the opposite party he is not necessarily con- cluded by his answers: Mair v. Cully, 10 U. C. R. 321. Issue of Subpoenas into Any Part of Ontario or Quebec. Sections 4-11 and 13 of 0. S. C. c. 79 are not consolidated in the Revised Statutes of Canada and are as follows : 4. If in any action or suit depending in any of Her Majesty'B Courts Superior Courts of Law or Equity in Canada, it appears to the Court, ™* v l ** ue or when not sitting, it appears to any Judge of the Court, that it is to any part proper to compel the personal attendance at any trial, or enqutte or °' Canada, examination of witnesses, of any person who may not be within the jurisdiction of the Court in which the action or suit is pending, the Court or Judge, in their or his discretion, may order that a writ Con. R.. 478. Compare B. C . none. Man., c. 40, rule 457. N. S., none. N. W. T. Con. R., 480. Compare B. C. Rules, 392 and 393. N. S. Rules, Order XXXV., s. 29. R. S. Man., c. 40. Rule 458. N. W. T. Con. R. 4S1. Compare R. S. Man., c. 40, Rule 450. B. C, none. . none. N. W. T. Con. R., ' Compare B. C, none. R. S. Man., c. -JO. Rule 460. X. S., none. N. W. T. R. S. O. c. 7.°.. s. If,. i> omitted in O ' 1909. being identical with C. R. 4S1. KU SUBPCENAS. called a writ of subpoena ad testificandum or of subpoena duces tecum shall issue in special form, commanding such person to attend as a witness at such trial or enquete or examination of witnesses wherever he may be in Canada. Service 5. The service of any such writ or process in any part of Canada thereof in v a jj j je ag va jj f j an( j effectual, to all intents and purposes, as if the anv part of Canada to same had been served within the jurisdiction of the Court from which be good. j t jj as issued, according to the practice of such Court. When not <>. No such writ shall be issued in any case in which an action is *° j pending for the same cause of action, in that section of the Province, whether Upper or Lower Canada respectively, witnin which such witness or witnesses may reside. Writs to be 7. Every such writ shall have at the foot, or in the margin there- note'f ^ °^' a statement or notice that the same is issued by the special order of the Court or Judge making such order, and no such writ shall issue wilhout such special order. Conse- 8. In case any person so served does not appear according to the quences exigency of such writ or process, the Court out of which the same of dis- obedience, issued may, upon proof made of the service thereof, and of such de- fault, to the satisfaction of such Court, transmit a certificate of such default, under the seal of the same Court, to any of Her Majesty's Superior Courts of Law or Equity in that part of Canada in which the person so served may reside, being out of the jurisdiction of the Court transmitting such certificate, and the Court to which such certi- ficate is sent, shall thereupon proceed against and punish such person so having made default, in like manner as they might have done if such person had neglected or refused to appear to a writ of subpoena or other similar process issued out of such last mentioned Court. If expense* 9. No such certificate of default shall be transmitted by any paid or Court, nor shall any person be punished for neglect or refusal to attend any trial or enquete or examination of witnesses, in obedience to any such subpoena or other similar process, unless it be made to appear to the Court transmitting and also to the Court receiving such certificate, that a reasonable and sufficient sum of money, accord- ing to the rate per diem and per mile allowed to witnesses by the law and practice of the Superior Courts of Law within tUe jurisdiction of which such person was found, to defray the expenses of coming and attending to give evidence and of returning from giving evidence, had been tendered to such person at the time when Ihe writ of sub- poena, or other similar process, was served upon him. How eer- ^- ^ ne Sf ' rv i ce °f such writs of subprpna or other similar process vice proved in Lower Canada, shall be proved by the certificate of a bailiff within the jurisdiction where the service has been made, under his oath of office, and such service in Upper Canada by the affidavit of service PRA< i hi. ug to w n endorsed on or annexed to such writ by the person who served the same. 11. The costs of the attendance of any such witness shall not be Coats of taxed against the adverse party to such suit, beyond the amount that atte ° danoe ,..,!! . . . . provided would nave been allowed on a commission rogatotre, or to examine for. 3es, unless the Court or Judge before whom such trial or enqucte or examination of witnesses is had, so orders. 13. Nothing herein contained shall affect the power of any Court i' owe rto to issue a commission for the examination of witnesses out of its jurisdiction, nor affect the admissibility of any evidence at any trial "'^j^ or proceeding, where such evidence is now by law receivable, on the witne ground of any witness being beyond the jurisdiction of the Court. preserved. Held, that looking at the object of the Act and the propriety of its application to the examination of parties, the term " witiv in section 4 should be used in its widest sense, and should include parties to the cause as well as witnesses in the ordinary sense of the word : Moffatt v. Prentice, 9 C. L. J. 159. The Court has authority to grant an order for a subpoena to issue to Lower Canada, though the evidence of the proposed witness is not intended to be used at the hearing of the cause: McKerchie v. Montgomery, 1 Ch. Ch. 225. Before a subpoena will be issued to the province of Quebec it is neces- sary to shew that no suit is pending in that province for the same cause of action: MePhcrson v. McPherson, 3 Ch. Ch. 58. PRACTICE AS TO WITNESSES. Where a witness has come to and stayed at the assizes on sub- poena without requiring payment, he may refuse to appear till pay- ment of the expenses of returning: Newton v. Harland, 1 M. & G. 956. A party who is a necessary or material witness in his own cause, and who attends the trial only for that reason, may be entitled to his expenses like any other witness: Doicdrll v. Australian Mail Co., 3 E. & B. 902; but if about to attend on his own account he is not entitled to conduct money when subpoenaed by the other side: Rcid v. ['airless, 3 F. & F. 958. Before the jury are sworn the coun- sel of the party may have an absent witness called on his subprrna : Hopper v. Smith, M. Sc M. 115. This course when 8 the plaintiff avoids the additional expense of a non-suit if the Judge will allow the plaintiff to withdraw the record under Con. Rule 1897, 430 (4) : Mulett v. Hunt, 1 C. R. & M. 7">2. But it is not absolutely necessary to call a witness on his suhpwna in order to entitle the party to proi 1 against him: Lamont v. Crook. M. & W. <'1"> ; Goff v. Mills, 2 1>. & !.. •_'::. If the witness is in custody his attend- ance must be produced by a writ of habeas corpus ad testificandum. A habeas corpus also lies to bring the witness from a lunatic asylum on an affidavit that he is lit for examination and not dangerous: 136 PRACTICE AS TO AVITNESSES. Fennell v. Tait, 1 C. M. & R. 5S4. Where the affidavit of service did not state lhat the original subpoena had heen shewn to the wit- ness : — Held, that attachment would not lie though the witness at- tended several days before the trial and was paid : Corporation of East Nissouri v. Cogswell, 2 P. R. 385. A witness served with a subpoena duces is bound to bring into Court any document proved to be in his possession, though he may have a valid excuse for not shewing it in evidence ; and the validity of the excuse is matter for the judgment of the Court and not of the witness: Amcy v. Long, 9 East. 73. The Court will excuse production if the disclosure would subject the party to a criminal charge or penalty : Whitaker v. Izod, 2 Taunt. 115 ; but not unless the party from whom dis- closure is sought will pledge his oath that to the best of his belief the production would tend to criminate him : Webb v. East, 5 Ex. D. 108, C. A. With these exceptions no document relevant to the issue or being a title deed is privileged from disclosure, unless it be a confidential communication professionally made be- tween counsel or solicitor and client, or information obtained by the solicitor or an agent employed by him or by the client on his recommendation : Bustros v. White, 1 Q. B. I). 423, C. A. ; or in- formation obtained by the client for the purpose of obtaining the opinion of the solicitor thereon, and although the purpose was not carried out: Southwark d Vauxhall Water Co. v. Quick, 3 Q. B. D. 315 C. A. Confidential communications between solicitor and client are privileged, though made before any litigation was in contempla- tion : Minet v. Morgan, L. R. 8 C. P. 361; but communications obtained by the solicitor from third persons are not privileged unless prepared confidentially after a dispute has arisen for purposes of obtaining information, evidence or legal advice, with reference to litigation existing or contemplated between the parties: Wheeler v. "arrhant, 17 Ch. D. 075 C. A. Where the witness declines to produce an instrument on the ground of professional confidence, the Judge should not inspect it to see whether it was one which he ought to withhold : Volant v. 8oyer, 13 C. B. 231 ; and it seems that a mere assertion on oath by the solicitor that it is a title deed or other privileged document is conclusive : 8. C ; and if the document is brought into Court by a witness who says he is instructed by the owner to object to tho production of it, this is enough to justify mdary proof without ling the owner himself to make the objection in person : Phelps v. Prew, 3 E. & P.. 430. When the produc- tion is excused secondary evidence is admissible : Marsden v. Downes, 1 Ad. & E. 31. If the solicitor produced his client's deeds without objection, the evidence is admissible : see Hibberd v. Knight, 2 Exch. 11. The witness is not entitled to have his liability to produce argued by counsel: Doe d. Rovicliffe v. Egrcmont, 2 M. & Rob. 386. PRACTICE AS TO Ul i 137 A person merely subpoenaed to produce and nut I need not be sworn: 1'vrry v. Gibson, 1 Ad. & B. 48; and if sworn by mistake he is not liable to cross-examination: Rush v. Smith, 1 C. M. & K. 94. So it" a wrong witness is called in of a mistake in his name and is dismissed, on the discovery of the mistake, the Other side has no right to cross-examine him: Clifford V. Hunter, & P. 16. So if he is called by error of the counsel and actually sworn, yet if dismissed before examination, he is not liable to be cross-examined: Wood v. Mackinson, 2 M. & Bob. 273. A witness or a party is not obliged to attend and give evidence or submit to cross- examination unless he be duly notified or subpoenaed, even if he a to be present when the proceedings are going on: Robins v. Carson, 2 Ch. Ch. 343. A proper sum for his expenses should be tendered to the party with the notice : Street v. Faulkner, 15 U. C. R. 116. A plaintiff or defendant called as a witness under 10 Vict. c. 19 is not entitled to any other notice, or to be subpoenaed differently from any other witness: Xash v. Bush, 5 U. C. C. P. 300. An arbitrator may be examined as a witness upon a motion to set aside an award, or in an action upon an award, but such examination must be limited to matters of fact arising in connection with the reference and award, and cannot be pressed to the length of asking the grounds and reasons for making the award : In re Christie and Toronto Junction. 22 A. K. 21. When a witness is subpoenaed to attend on a particular day, and not from day to day, he cannot be attached if he were present on that day but went away afterwards : Rainville v. Powell, 3 D. C. K. 12S. Where a person who had given evidence in an action at law between substantially the same persons as were the parties to this suit, was afterwards committed to the provincial penitentiary, and refused to be examined in this cause, the Court ordered his evidence to be read from the notes of the Judge who bad tried the action at law: SvAtzer v. Boulton, 2 Chy. 693. Assumpsit for work and labour: The plaintiff's witness swore that the work was done upon a written agreement which he had in Court but refused to produce. He had not been subpoenaed : — Held, that he was as much bound to produce the writing as if in attendance under a 8ubpmna duces tecum. But scmble, that if the witness had been required by the Court to produce the agreement, and had still refused, this would not have been sufficient to warrant the reception of secondary evidence: Farley v. Graham, 9 U. 0. R. 438. Where on a second trial it appears that a witness who was examined at the first trial is absent from the country, his evidence then given may be received: Sutor v. McLean, 18 D. C. It. 490. Whether due diligence Ins been used to discover an attesting witness must depend on the circumstances of the case: Crane v. Ayre, 2 All. 577 IN.B J3b FOREIGN COMMISSIONS. Where it is sought to give in evidence at the trial of an action oral testimony taken under oath in another judicial proceeding, in which the adverse party had the power to cross-examine, on the ground that the witness cannot be called as being beyond the jurisdic- tion of the Court or otherwise, it is sufficient to shew that after diligent search the witness cannot be found. Answers to enquiries made as to his whereabouts are admissible to prove an unsuccessful search for a witness, and are not for that purpose to be treated as hearsay evidence. Munro v. Toronto Railway Co. (1904), 9 O. L. R. 299, at p. 312, distinguished. Cuff v. Frazee Storage and Cartage Co., 14 O. L. R. 263. FOREIGN COMMISSIONS TO TAKE EVIDENCE. The Evidence Act provides as follows : — * nmy^Tor- 50 - (1) Where 5t is made to appear to the High Court or a dered to be Judge thereof, or to a Judge of a County or District Court, that examined Court or tribunal of competent jurisdiction in a foreign country in relation J to any has duly authorized, by commission, order or other process, the ob- matter taining of the testimony in or in relation to any action, suit or pro- pending ° before a ceeding pending in or before such foreign Court or tribunal, of a foreign witness out of the jurisdiction thereof and within the jurisdiction of the Court or Judge so applied to, such Court or Judge may order the examination of such witness before the person appointed, and in the manner and form directed, by the commission, order or other process ; and may by the same or by a subsequent order, command the attendance of any person named therein for the purpose of being examined, or the production of any wiiting or other document or thing mentioned in the order; and may give all such directions as to the time and place of the examination, and all other matters con- nected therewith, as may seem proper ; and the order may be en- forced, and any disobedience thereto punished, in like manner as in case of an order made by the same Court or Judge in an action de- pending in such Court or before such Judge. Payment (2) A person whose attendance is so ordered shall be entitled of expenses to the like conduct money and payment for expenses and lt>ss of time as upon attendance at a trial in the High Court. Compare R. S. B. C, c. 71. ss. 42 and 43. R. S. Man., c. 57, ss. 57, 58, 59 and 60. R. S. N. B., c. 127, ss. 23 and 24. R. S. N. S.. c. 163, s. 51. . 130 A person examined under Buch commission order or other Right of process shall have the like right to object to answer questions "g"^* tending to criminate hi I to refuse to answer any ques- questions tions which, in an action pending in the Court by which or by "^c« a Judge whereof or before the Judge by whom the order for exam- doonment8 (nation was made, the witness would be entitled to object or to fuse to answer; and no person shall be compelled to produce at the examination, any writing, document or thing which he would not be compellable to produce at the trial of such an action. (4) Where the commission order or other procees or the in- Adminis- structions of the Court accompanying the same direct, that the tration of person to be examined shall be sworn or shall affirm, the person so appointed shall have authority to administer the oath to him or to take his affirmation. WHAT CASES MUST BE TRIED BY JURY. The present regulations as to manner of trial are containea In sections 102-llU, inclusive, of the Judicature Act, R. S. O. 1S97, c. 51. These rules are as follows : 102. In actions of libel, slander, criminal conversation, seduction, Certain ac- malicious arrest, malicious prosecution and false imprisonment, an t |^ t £ r be questions which might prior to the Administration of Justice Act, tr i e( \ by a 1873, have been tried by a jury, shall be tried by a jury unless the jury, parties in person or by their solicitors or counsel waive such trial. 103. Subject to rules of Court, all causes, matters and issues, over ra «, e8 the subject of which prior to the Administration of Justice Act of formerly 1873, the Court of Chancery had exclusive jurisdiction, shall be tried ^olusive without a jury, unless otherwise ordered. jurisdic- tion of 104. All actions against municipal corporations for damages in Court of ( 1 1 'iiii ©r v respect of injuries sustained through non-repair of streets, roads or . , • j v. * • i Certain sidewalks, shall he tried by a Judge without a jury, and the trial action , shall take place in the county in which the road, street or sidewalk against munici- is situated. pal i ties to Section 1046 added by Subsection 1 of Section 7 of Chapter 26, without a Ontario Acts. 1910:— venue to l:). The Judge may postpone or adjourn the trial — in "!■: of ,. _ ._. , . .■. trial. Where the ground of an application to put off a trial is tne absence of a witness, it is not sufficient to shew that the witness is material, and may and probably will give important evidence, or to swear that his evidence will be material and necessary without shewing that it will assist the case of the person making the applica- tion: Kerr v. Grand Trunk R. W. Co., 4 P. R. 303. Held, that the inability properly to calculate the damage to the plaintiff from a personal injury owing to a sufficient time not having elapsed from the receipt of the injury is a sufficient ground for postponing the trial: Speers v. Great Western R. W. Co., 6 P. R. 170. At the trial the Judge having declined to allow a witness twice called in the process of the suit to be recalled, or to wait for the possible arrival of another witness, the Court refused to review the exercise of his discretion in so doing: Gleason v. Williams, 27 U. C. C. P. 93. Action for extra labour on an agreement to plaster defendant's house. The Court, although not seeing that the verdict was against the evidence, or weight of evidence, granted a new trial on the ground that the Compare B. C. Rules, 350 and 301. R. S. Man., c. 40, s. 567 and 568. N. B. N. S. Rules, Order XXXIV., s. 25. N. W. T. post] L43 case was taken late at night, the defendant farther shewing by affidavits that he had not time to go into his defence as fully as he would if time had permitted: GfalUna v. Oolton, <", i . < '. C. P. 247. The affidavit for a continuance on the ground of the absence of a material witness ought to shew when he is expected to return : Durum v. Dunne, 2 Thorn. 13 (N.S.). "Where a cause is withdrawn on account of the absence of a necessary witness for the plaintiff, and he shews that be has made diligent efforts to secure the attend- ance of such witness who is residing within the jurisdiction, but fails to secure it, the costs of putting off the examination will as a general rule be costs in the cause. In all other cases the costs will be dis- posed of according to circumstances and in the discretion of the Judge: Pattison v. McNabb, 12 Chy. 483. The costs of moving to postpone a trial on account of the absence of a material witness will be costs in the cause where the party moving has made diligent efforts, etc., to secure the attendance: Brown v. Porter, Knox V. Porter, 11 P. li. 250. In some cases an application on affidavit may be made to put off the trial on account of the absence of a material witness. An application to put off the trial beyond the existing sittings or from sittings to sittings was not generally allowed on the part of the plaintiff because he might at any time withdraw the record if he was not prepared to try: Ansley v. Birch, 3 Camp. 333. As now by Con. Rule, 1897, the plaintiff cannot withdraw the record without the leave of the Court or the Judge, this reason to some ex- tent fails. When a motion is about to be made to the Judge at nisi prius for putting off the trial on account of the absence of a witness, notice should at first be given to the opposite solicitor, with a copy of the affidavit intended to be used in support thereof. Where expenses have been incurred by the other party in bringing up witnesses the application will only be granted on the terms of paying them. No affidavit of merits is required : Hill V. Prosscr, 3 Dowl. 704. The affidavit may be made by the party or by his solicitor: Duocrly V. Gunning, Peake, 97 ; or by the solicitor's clerk if he has the manage- ment of the case: Sullivan v. McQill, 1 H. Bl. 637. COMPETENCY OF WITNESSES. The Ontario Evidence Act provides as follows: — * 4. No person offered as a witness in an action shall be excluded Witnesses by reason of anv alleged incapacity from crime or interest from giv-J'ottobe inoapaci- ing evidence. toted by crime >>r interest. * Compare R. S. B. C, c. 71, ss. 4. r>, 6 and 24. It. S. Man., c. . r >7, ss. 3, 4 and 5. R. S. N. B., c. 127. ss. 3, 4. 8, 9 and 11. R. S. N. S., c. 1G3, ss. 34, 35. 37, 36, 38. 1U ENCT OF WITNESSES. Such per- sons ad- mitted to give evidence Evidence of parties. Kvidence in proceed ings in conse- quence of adultery . Communi- cations made during marriage. Interpre- tation " ( Lin t. " 1 Action. Applica- tion of Act. 5. Every person offered as a witness shall be admitted to give evidence notwithstanding that he has an interest in the matter in question or in the event of the action, and notwithstanding that he has been previously convicted of a crime or offence. 6. The parties to an action, and the persons on whose behalf the same is brougnt, instituted, opposed or defended, shall, except as hereinafter otherwise provided, be competent and compellable to give evidence, on behalf of themselves or of any of the parties ; and the husbands and wives of such parties and persons shall, except as hereinafter otherwise provided, be competent and compellable to give evidence on behalf of any of the parties. 8. The parties to an action or proceeding instituted in conse- quence of adultery, and their husbands and wives, shall be competent but not compellable to give evidence, but the husband or wife, if competent only under this Act, shall not be asked or bound to answer any question tending to shew that he or she has been guilty of adul- tery, unless he or she shall have already given evidence in the same action or proceeding in disproof of his or her alleged adultery. 9. A husband shall not be compellable to disclose any communi- cation made to him by his wife during the marriage, nor shall a wife be compellable to disclose any communication made to her by her husband during the marriage. In the Evidence Act by section 2 : — " Court " shall include a Judge, Arbitrator, Umpire, Commis- sioner, Police Magistrate, Justice of the Peace or other officer or person having by law or by the consent of parties authority to hear, receive and examine evidence. " Action " shall include an issue, matter, arbitration, reference, investigation, inquiry, a prosecution for an offence committed against a Statute of Ontario or against a by-law or regulation made under the authority of any such statute and any other proceeding author- ized or permitted to be tried, heard, had or taken by or before a Court under the law of Ontario. By section 3 : — 3. This Act shall extend and apply to the evidence offered or taken orally or by interrogatories or affidavits or by the production of documents or things or otherwise by or before a Court in an action. Evidence in proceedings on municipal by-laws is provided for in Ontario by sections 711-712 of the Municipal Act.* * Ont. Stat. 1003, c. 19, ss. 711 and 712. Compare R. S. Man., c. 110. ss. 786 and 788. P.. S. N. B.. c. 165, ss. 117 and 118. CO L*5 711. (pun the hearing of any infoi iplainl exhibited wi or made under this Act, and upon any prosecution for nn offeno against any by-law passed by a municipal council, or by a board of commit : police under the authority of this Act, the person exhibiting or making the information or complaint shall be a corn- witness, notwithstanding such person nay be entitled to part of the pecuniary penalty on the conviction of the offender, and the •ho wife or husband of such persons opposing or <\>- fending shall also be con ' aesses, and all the said pei shall he compellable to give evidence on the hearini . 712. In prosecuting under any by-law, or for the breach of any C mpell- by-law, witnesses may !■■ compelled to attend am! give evidence in in " wit " the - ner and by the same process as v i re compelled attend and give evident a nary proceedings before justices of the peace in cases tried summarily under the "Ontario Sum Convictions Act." A person under sentence of death is not a competent witness: Regina v. Webb, 11 Cox. 133, followed: Graeme v. (llobc Printing Co.. 10 C. L. T. Occ. N. 367. lught of witness to presence of counsel upon examination under Ton. Kule 576: see Dominion Bank v. Bell. 13 P. ft. 471. Held, upon a review of the authorities, that the depo- sitions of the defendant taken on his own behalf upon a reference were admissible in evidence, notwithstanding that he had died pendit: . an adjournment of the reference prior to the cross-examination, so that the plaintiff had been deprived of the opportunity of cross-ex- amining him : Randall v. Atkinson, 30 O. R. I'll'. C. sued M. and R., M. accepted service and aeknowled. amount due, but R. pleaded to the action. Before trial defendants died. Then C. It. & R. R.. as administrators of R., were, bi trial, made parties to the action. At the trial C. was examined as a witness in support of his own case, and when asked what had taken place between him and the deceased M. and R., the learned Judge ruled that the evidence was in under s. 41, c. !>•"' of the Revised Statutes of Nova Scotia, 4th series : — Held, that under said i ction against administrators made parties to an lion after issue joined, but before trial, the plaintiff cannot give any evidence in his own favt i lings with a deceased defendant: Chesley v. Murdoch, 2 S. <\ It. 48. iUALIFICATION OF WITNESSES. A person whose understanding is manifestly and epre- giously defective will not be allowed to give evidence. This defect ray arise from immaturity of intellect or some K.E.— 10 14t> DISQUALIFICATIONS. species of insanity. Such a witness would not be competent because his mental power of distinguishing and relating the truth could uol be relied on. As a general rule insane persons, idiots an i lunatics, during their lunacy are incompetent witnesses. But lunatics in their lucid intervals are competent. It may be observed that here the question <>f competency will always turn solely on whether or no tlie witness will bo likely to give truthful evidence, and if he is likely to give this, he may be received notwithstanding considerable cts of intellect or even aberration of mind on certain subjects: R. v. Hill, 20 L. J. M. <'. 222. It makes no difference whether the defect of understanding arises from imperfect education, from natural imbecility, or from failure of the mental powers. It is for the Judge by examination of the lunatic on the voir dire, and of wit- nesses called for that purpose, to ascertain and decide on his com- petency, and if the Judge allow him to give evidence the jury must decide on the credit to be attached to his testimony: S. C, Id. Deaf and dumb persons were formerly presumed to have understandings so defective as to be in all cases incompetent, a presumption entirely contrary to experience, and one not likely now to be made: see Harrod v. Harrod, 1 K. & J. 9. The state of the intellect of such a witness might, of course, be reasonably inquired into before taking his testimony, as the usual channels of information being cut off the education of such persons is more than usually difficult : see 2 Taylor Evid., s. 1241. A deaf and dumb person may give evidence through an interpreter by signs: Ruston's Case, 1 Leach C. C. 4th ed., 408: or by writing: Morrison v. Lenard, 3 C. & P. 127. \\ here such a person has been examined on the voir dire and pro- nounced to be a competent witness, and it afterwards appears during the examination-in-chief that the witness is incompetent, his evidence may be withdrawn from the jury: R. v. Whitehead, 1.. R. 1 C. C. 33. Children not able to apprehend the obligation of an oath or promise cannot be examined; but tender age alone is no objection: Brazier's Case, 1 East. I'. 0. 443. And a child who was wholly destitute of religious education has been allowed to be made a competent witness by being taught the nature of an oath before the trial, with a view to qualify him: /'. v. Murphy, 1 Leach 430 n. : where a child is tendered as a witness the practice is for tlie Judge to examine him with a view to ascertain his competency. It is evidenl thai in any of the above cases if a -witness who has been examined by the same Judge on the voir dire and proaoaaced competent should afterwards manifestly appear to him to be in such a mental condition as to be incompetent to give evidence, the evidence must be with- drawn from the jury. Formerly all persons having an interest in the suit were on that ground disqualified, as were also the husbands ii \ in OF ui i \ i 147 and wives; bul their disqualifications have been entirely abolished, although with regard to certain matters, the witness may refusi evidence, and in one case the uncorroborated evidence of the plaintiff will not suffice to obtain a verdict. A person whose ■ is in the conuni size may be examined as a wil may a juror, hi an action to enforce his award the arbitrator may be called as a witness i<> prove whal passed before him, what matters oted for his consideration and what claims admitted, bul he cannot be asked as to whal passed in his own mind when i cising his discretionary power on the matters submitted to him, nor can he be asked questions to explain, aid or contradict his a-.. Buccleugh, Dk. of, v. Metropolitan Hoard of Works, L. R. 5 II. L. 418. See also /« re Christie and Toronto Junction, 22 A. K. 21. Counsel and solicitors in the cause may also be witnesses in ii ; but the is open to objection, and such evidence should if possible be dispensed with. When a counsel in a cause is by consent allowed to go upon the stand to prove a particular fact, he becomes a wi in the cause generally, and may be cross-examined upon any fac the cause: Gilbert v. Campbell, 2 Han. .".."> (N.B.). Though the prac- tice of counsel in a cause giving evidence is most objectionable, y Judge at nisi i, rius lias no authority to refuse it, if offered : Bank of B. N. 4. v. McEb-oy, 2 Pug. 462 (N.B.). SWEARING OF WITXKKSKS. Oath of Witm By the common law of England every witness muit be sworn according to some religions ceremony or other, and if it be dispensed with, it can only be by the authority of an Act of Parliament. Tbere is, however, no prescribed form of oath; it is to be that which the witness himself declares to be binding upon his conscience, and he is always allowed to adopt the ceremonies of his own religion: Omiehund v. Barker, Willes, ."17. A witness may be asked whether he considers the form of administering the oath to be such as will be binding on his conscience. The proper time for asking him this ques- tion is before the oath is administerer*, bul as il may happen thai the oath may he administered in the usual form by the officer before the attention of the Courl or party or counsel is directed to it. tl.e objection is not in such a ie precluded; but the witness may nevertheless lie afterwards asked whether he considers the oath lie has taken as binding upon h*is conscience. If lie answers in the affirmative lie cannot then be further asked whether there he any other moil,, of swearing more binding upon his conscience: Tht (,»»• Case, 2 It. & B. 284. 14S OATH OF WITNESS. Formerly ii was considered necessary in all cases that an oath, that is a direct appeal to a divine power, should be made by the witness. Numerous sens have, however, arisen, the members of which allege conscientious objections to take an oath. In order to prevent the difficulty which arose from large classes of the community being thus rendered unavailable as witnesses, various statutes have from time to time been passed exempting such persons from the neces- aking an oath, and allowing them to substitute a solemn affirmation in its stead. On a trial for murder an Indian witness was offered, and on his examination by the Judge, it appeared that he was not a Christian and had no knowledge of any ceremony in use among his tribe binding a person to speak the truth. It appeared, however, that he had a full sense of the obligation to do so, and thai he and his believed in a future state and in a Supreme Being, who created all things, and in a future slate of rewards or punishment according to their conduct in this life. lie was then sworn in the ordinary way: Held, that his evidence was admissible: Regina v. Pah-Mah-Gay. 20 r. C. II. 195. Where a person stated that he believed in a Supreme Power— a God as defined by Christ's teaching, in heaven and hell, and in a future state of rewards and punishments, but that he did not believe he was undej obligation to 'ell the truth by reason of taking the oath, and that he did not believe thai a person who swears falsely will he punished in the hereafter, it was held that he was competent to be sworn as a witness: Farrell v. Man- chester, :; E. I.. R. 2-14: Farrell v. !'orilir required or desirini to give evidence or to make an affidavit or deposition in or on an occa ion whereon or touching a matter resp aich an att: ; oath is required or permitted, objects "> take an oath or is objected* to as incompetent to take an oath, and it the presiding Judge or Hi- person qualified t<» take affidavits or depositions is si • • i . ofoi person objects to b< rn from conscientious sc i ■!• on the ground of his religious belief or on the ground that the of an oath would have no bindin a his conscience, such person may make an affirmation and declaration in lieu of taking an oath and ■i ch affirmation and declaration shall he of the same force and effect as if such person had taken an oath in the usual form. , i> > Where the evidence is in the form of an affidavit or written Cert deposition the person before whom the same is taken shall certify that ( the deponent satisfied him that he was a person entitled to affirm. titl< affiim. A witness who. to the question "Do you know the nature of an oath?" answers " No," is not therefore incompetent more particu- larly, when by other answers he shews himself to be nol "insensible" to the religious obligation of an oath, 'lite rejection of his evid by the Judge, in a trial by jury, is improper and a sul round for a new trial: Cabana v. McManamy, Q. R. 35 S. < '. 3. CREDIBILITY OF WITNESSES. The credibility of witnesses is altogether a question for the jury- but a different rule prevails where there are writings which tend to confirm the testimony ol one side or the other: Smith v. Andi 1 P. & B. 541 (N.B.)- Where tie' • - contradictory, the will not interfere with the findings of the Judge who tried the case: <'ook v. Patterson, 10 A. R. t'>4.">. Where there is direct imony the finding of the Judge at the trial mus * Compare R. S. B. C. c. 71. s. J.",. R. S. Man.. c. 57, s. .",7 R. S. X. H.. c. 127. s. 11. R. S. \. S., e. 163. 150 CREDIBILITY. regarded as decisive, and should not be overturned in appeal by a Court which has no! had the advantage of seeing the witnesses and observing their demeanour while under examination: Grassett v. Carlo: 10 S. C. R. 105. Where two witnesses of apparently equal credibility contradicl each other as to particular statements or con- versations, acceptance should be given rather to one who remembers what happened than to one who denies, probably because he does not remember. Another rule for dealing with such conflicts o consider what farts are beyond dispute and to i which of the two accounts in conflict best accords with thos accord- ing to the ordinary course of human affairs and the usual habits of life or business: //. W. Kastor & Sons idvertising Co. v. Coleman, 11 O. L. It, 262, 6 W. R. Till. When several witnesses equally in- telligent and credible who appear to give their testimony in good faith, do not agree upon the existence of a fa< I e lourt should adopt the version of the rather than that of the minority. 2. As between witnesses equally hones, the Court ought rather to ho would not be likely to be mistaken than those who are likely to misconceive the facts in question: Quay v. Village of Malbaie, Q. R. 25 S. C. 263. In the estimation of the value of the evidence in ordinary cases, the testimony of a credible witness who swears positively to a fad should receive credit in preference to that of one who testifies to a negative. The evidence of witnesses who are near relatives, or whose interests are closely identified with those of one of the parties, oughl not to prevail in favour of such party against the testimony of strangers who are disinterested wit) Evidence of common rumour is unsatisfactory and should not gen- erally be admitted: Leffeunteum v. Beaudoin, 28 S. C. R. 89. There is nothing in our law to oblige a trial Judge (any more than a jury) to accept the evidence of two witnesses rather than one. The prin- ciple referred to by Taschereau. J., in Leffeunteum v. Beaudoin, 28 S. C. R. at p. 0.">, lias no application. Neither the reason for the supposed rule, nor the rule itself, accepted: Staunton v. Kerr, 1 O. W. N. 400. There is no rule in our law that a Judge or jury or ■ trial tribunal : ")i! any witness even though not con- tradicted: Rem v. VariNorman, 19 O. L. It. 149. When two equally credible witnes I by one side contradict each other it is not competent for the party calling them to seek to discredit one and accredil the other: Sumner v. Brown, 25 T. L. R. 745. Held, that witnesses beinj • equal credibility a witness who testifies to an affirmative is to be credited in preference to one who testifies to a negative, because he who negative may have forgotten a thing that did happen, but it is impossible for the one swearing affirmatively to remember a thing that never existed: Watt v. Watt, 1 Sask. L. R. 418; 8 W. !.. It. 953. CORROBORATIVE EVIDENl 151 CORROBORATIVE EVIDENCE. Radford v. Macdonald, 18 A. R. L67. Seotii - LI, :" and 13 of the Ontario Evidence Act are ns fol ■ : — 11. The plaintiff in an action for breach of promise <•£ marriage E\ shall not recover unless his or her testimony is corroborated by some L" ■*' other materia] evidence in support of the proi ofpr 11!. In an action by or against th<' heirs, n«-.\i of kid, executors, ,. administrators or assigns of a deceased person, an opposite or in-. terested party shall not obtain a verdict, judgment, or decision on ['^' his own evidence, in respect of any matt r occurring before the deatl of thi I person, unless such evidence is corroborated by some '" '!""""• rl "; evidence of other material eridence. ite pi 13. In any action by or against a lunatic so found or an in- mU stbe mate of a lunatic asylum, or a person who from unsoundness of mind com , „»ted. is incapable <>t giving evidence, an opposite or interested party shall. btain a verdict, judgment, or decision on his own evidence, un- less such evidence is corroborated by some other material evidence. luns The material corroborative evidence required l>y R. S. O. 1897, c.etc.,evi- 7n, s. 10, in a proceeding by or against the executor of the will, oj the administrator of the estate, of a deceased person, may be given party to by one who is interested as cestui que trust in the matter of tit. oral in question in the action. The interest of such a witness in the result may well he considered by the jury in considering the weight to lie attached to it. but the evidence could not be withdrawn from their consideration: Batzold \. Upper, 4 0. I,. R. 110. The evidence of executors that promissory notes belonging to the testa- tor had. when they came into their hands, endorsements upon them shewing that payments had b< to him. does not require roboration under s. 10 of tt. S. O. c. 61: Staebler v. Zimmerman, 21 A. R. 266. To enable an opposite or interested party to recover in an action against the estate of a dec< son it is sufficient if evidence is corroborated, i.e., strengthened by evidence which apparently helps the judicial mind to believe one or of the material statements or facts deposed to: Parker v. Parker, i . 1'. IK', approved. Upon a claim in an administration action by a tenant against th< of his dec, :is..,l landlord for a balance due to him in respect of alleged advances ami for goods supp the hooks of th.' tenant in which the transactions were set out and de by him in favour of the landlord, were held to be sufti- corroboration of his evidence, although the cheques did shew on tl whether they had l on account of rent or in respect of advances: In re Jelly Union Trust Co. v. Gamnn, 152 EXAMINATION IN CHIEF. 6 O. L. li. 481. The corroboration required by s. 50 of the Evidence Act (B. C. Stat. 1900, c. 9, s. 4), must refer specifically to the con- tract on which action is based, and not to some part of it so as to leave the effect of the whole unascertained: Blacquicrc v. Corr, 10 B. C. K. 448. In an action by an executor of a deceased mortgagee against two joint mortgagors, both the latter deposed to certain pay- ments made by one or the other in the lifetime of the mortgagee : — Held — Each mortgagor was an opposite or interested party in the same degree and of the same kind, and constituted together an oppo- site or interested party within the meaning of the ud the fact of both the mortgagors testifying to such payments, did not constitute corroboration within the meaning of R. S. O. c. 61, s. 10: Taylor v. Regis, 26 O. R. 483. Statements of a testator as to the provisions of his will are admissible in evidence in an action to establish it. Such statements held sufficient corroboration of the plaintiff who had drawn the will in question, which had been lost or stolen and who was claiming large benefits under it: Stewart v. Walker, 6 O. L. R. 405. EXAMINATION OF WITNESSES. Examination in Chief. On almost every trial a great deal of discussion arises as to putting leading questions. Leading questions are those which from the form in which they are put are likely to communicate to the witness a knowlege of what answer would he favourable to the person putting it; which would of course be dangerous with a dishonest witness. In some cases of critical inquiries also, it is very desirable to get the witness's own impression, which the most veracious witness might not after another view had been once suggested to him be able to recall. The oojeetions, therefore, to leading questions apply by no means with ■ ill witnesses, and to all parts of an inquiry. Some witnesses will adopt anything that is put to them, whilst others scrupulously weigh every answer. Moreover innumerable questions an- iiui for a mere formal purpose, the facts not: really being in dis- . or simply in order to lead the mind of the witness to the real point of inquiry. As a great saving of time is - by leading a witness, it would be extremely undesirable to stop it where it is other- wise unobjectionable. There is no distinction recognized by the law een questions which are, and questions which are not leading. To i a question as leading is only a mode of saying that the i nation is being conducted unfairly. It is entirely a question for the presiding Judge to say, in his discretion, whether or not the examination is hein^ conducted fairly. It is EX \M!\ VI [ON IN CHIEF. sometimes said that all questions capable of being answered by merely • No arc objectionable as Leading. Bui this is a very fall, test, even in the mosl critical parts of an inquiry. On the other hand i; is sometimes said that the objection thai tip' qi Leading maj bi I over by putting it in th itive; bul it is obvious that nothing would )><■ easier than in this ws whole conversation i>> a dishonest witness. v dtn 3 produced f<> read mi- explain a series of ancient records brought into Coui asked to state the result <>f them; and this is p or saving of time, and because the witness can be interrogated as to the par- ticular entries <>n which he founds his genera] statemenl of their pur- port and effect, and may be called upon to point them out to the Court : Rowe v. Brenton, :\ M. & Ely. 212. It has been already shewn that oral proof of a written document cannot he admit nil on examina- tion-in-chief unless a propei- foundation for it be laid by accounting for the non-production of the writing i d that tvhere any agreement, communication or statement is the subject of inquiry, tlie opposite party may interpose the question — ■Whether it was in -writing? Where a witness for the plaintiff cross-examined as to the contents of a lost letter, swore that it did not contain a certain passage, and a witness was called by the de- fendant to contradict this statement. Lord Ellenborough ruled that he might he asked it" it contained a particular passage recited to him which had been sworn to on the other side: for otherwise it would he impossible ever to come to a direct contradiction: Court een v. T 1 Camp. 43. And where in cross-examination a witness being at .-is to so i expressions which he ' ' ■'. denied them, and the counsel on the other side called a person hat the witness had used such expressions, and read to them the particular words from his brief, Abbott, C.J., held that he was entitled to do so: Edmonds v. Walter, 3 Stark. 7: and this is now the common practice. But where a witness denied on cross-examination the use of certain ex- pressions by him in a conversation at which both plaintiff and fendant were present, it was held that a witness called to prove that such expressions were used could not have the very words suggested to him; the conversation being evidence in itself, and not proved for the mere purpose of discrediting the witness: Hallett v. Uousens, 2 M. & Rob. 23 If a witness when called displays a determination to speak as unfavourably as possible to the party calling him, or as it is sometimes called, proves hostile, then the party calling him may conduct the examination with the same latitude as we shall hereafter see a cross-examination may be conducted: see Coles v. Coles, 1.. It. 1 I'. & M. 70: but lie must confine himself to matters material to the issue. The party calling 154 EXAMINATION IX CHIEF. a witness cannot cross-examine him merely to tesl his credil as his opponent may. It has been ruled that if a witness stands in a situa- tion which of necessity makes him adverse to the party calling liiui, tin- counsel may as matter of righl cross-examine him: Clarke v. Saffery, Ry. & M. 126. The presiding Judge lias a discretion as to the mode of examination in order best to answer the purposes of justice. Per Abbott, < '..!.. Bastin v. Carew, Id. 127. When a question is propounded, the opposite party may object that it is one which transgresses the rules of evidence. If not objected to, or if the objection be over- ruled, the witness must answer it unless be can show that he has some privilege which enables him to refuse to do so. If he refuse to answer the question and can show no privilege, he will be liable to be fined and imprisoned by the Court: Ex partt Fernandez, 10 C. B. N. S. 11 : 30 L. J. C. P. 321. Where a witness (whether party to the action or not) is called to prove a case, and his evidence disproves it, the party calling' him may yet establish his case by other witnesses called not to discredit the former, but to contradict him on facts material to the issue: and the right to contradict by such other evidence exists without leave of the Judge at the trial: Stanley Piano Company of Toronto v. Thomson, 32 O. R. 341. If, in a case tried without a jury, evidence has been improperly admitted, a Court of Appeal may reject it and maintain the verdict if the remaining evidence warrants it: Merritt v. Hepenstal, 25 S. C. R. 150. Where a party to a suit examines a witness at the hearing, the party calling him cannot afterwards ex- clude his testimony from the consideration of the Court: Vannatto v. Mitchell. 13 Chy. 665. Defendant having made one objection to the evidence, which was overruled, allowed it to be read and commented upon it: Held, that he was precluded from taking any further ex- ceptions: Farrel v. Stephens, 17 l . C. R. 250. Where at a trial an objection was taken to the form of the return, the Court would not on argument allow another objection which would have been fatal if ■I at the trial: Hibbert v. Johnston, 3-"i. At th( i of the trial the counsel for the defendant not being present, plaintiff opened his case, and wnile he was reading nee taken under a commission at Montreal the counsel for de- fendant appeared and objected to the commission, as the envelope enclosing it was not under the hand and seal of the commissioner and there was no affidavit of the due taking: Held, that the objection was fatal and taken in tii ie : Reford v. McDonald, 14 D. C. C. P. 150, At the close of the defence the plaintiff's counsel without objection put in the defendant's examination before trial. The plaintiff's counsel in addressing the jury read a portion thereof, and the Judge in his 155 rtions: Held, there could be no objection to .Indue reading such other portions, as they were properly in evidenci : ticougall \. Stapleton, 12 < ). K. l'(m;. The erri • i don in refusing to allow questions mi cross-examination which are irrelevant to the issue is no ground l'<>v a new trial: hickey v. . gerald, 4 1 r. C. i:. 303. ( 'ross-examination. Upon cross-examination counsel may lead the witness so as to bring him directly to the point in his answer, but he cannot, if tbe witness shows an obvioun leaning in hi3 favour, go the length of putting into the witness's mouth the very words which he is to echo back again: Hardy's Case, 24 How. Si. Tr. 755. Indeed in such a case the usual latitud ination would perhaps nol be allowed, li is not allowable iunse] on cross-examination to mislead the witness by assu farts to be evidence which have not been proved, or try to entrap him by mis-statement. This is sometimes al tempted in practice by handing wrong papers to the witness in order to test his judgment in the proof of handwriting. It is nol competenl to counsel to question a witness concerning a fact irrelevant to the matter in issue for the mere purpose of discrediting him l>y calling other witne to disprove what he says: Spencely v. De Willott, 7 Bast. 109; but should the witness answer such a question evidence cannot he driven to contradict: Harris v. Tippett, 2 Camp. 637 : or to confirm his evidence: Tolma n v. Johnson, 2 F. & F. 66. As to order of con- ducting cross-examination this is a matter in the discretion of the Leading questions may he pul in cro [nation whether the witness be favourable '>:• not. Bui as remarked in Stewart v. Walker, 6 <). I.. R. at "(it'>, it would I the testimony: Parkin v. Uoon, 7 < !. & I'. 409. The defendants appeared and pleaded jointly by the same attorney, their defenci isely ime, 'mi they were represented a1 the trial by separate counsel. On examination of plaintiff's witness both counsel claimed the right to cros : Held, affirming the ruling of the Judge at the trial, tnat this was a matter of procedure and within the discretion of the trial Judge, and thai moreover he was righl in refusing to allow more than one counsel to cross-examine the witness: Walker v. McMillan, 6 S. C. K. 241. When a party is compelled to call the attesting wi will or codicil he may cross-examine them, as they a- i wit- of either party, but of the Court : Jones v. Jones, 24 T. I. 829. RE-EXAMINATION. As to contradictory oral statements made by witness, Section 18 of the Ontario Evidence Act is as follows : — 18. If a witness upon cross-examination as to a former statemeni lie- .Jade by him relative to the matter in question, and inconsistent with . his present testimony, does not distinctly admit that he did make such statement, proof may be given (hat he did in fact make it; but before such proof is given, the circumstances of the supposed state- ment, sufficient to designate the particular occasion, shall be wru- tioned to the witness, and he shall be asked whether or not he did make such statement. Re-examination. A re-examination which is allowed only for the purpose of explaining any facts which may come out on cross- examination must he confined to the subject-matter of the cross-examination. Counsel has a right upon re-examination to ash all questions which may he proper to draw forth ar. explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful. And also of the motive by which the witness was induced to use these expressions; but has no right to introduce matter new in itself and not suited to the purpose of explaining either the expressions or the motives of the witness: The Queen's Case, 2 B. & B. 207. The conversations of a party to the suit relative to the subject matter oi the suit are in themselves evidence against him in the suit. And if the counsel chooses to ask a witness as to anything which may been said by the adverse party, the counsel for that party has a right to lay before the Court the whole that was said by his client in me conversation. But a witness cross-examined as to assertions of a party in a particular conversation cannot be re-examined as to other unconnected assertions of the party in the same conversation although connected with the subject of the suit. It must not be - ;l thai cross-examination on part of a conversation necessarily : n proof of the whole , r ii : >-'. ('. Prince v. Samo, 7 K . Papers proved on cross-examination are to be treated :is the evidence of the party producing them: Crane v. Clarke, Ilil. T.. 1828 (N.B.). Where tin' plaintiff has been examined as a wi i ing the same subject, it is necessary in order to prove his testimony that the witness should swear to the words used by him and not [y to the effect of them: Fraser v. Black, 'J All. 312. Whore a witness had given his version of a conversation in which it was alleged that for a certain consideration he had agreed to wai er clause, the question "Then so far as you were concerned yon did ti! agree to waive that?" was properly rejected, inasmuch as it for the jury to say upon tl vidence already giv d whe Pendant had waived the cesser clause: Lovitt et a!, v. Snow- ball, vol. 32, L.M7 'X.!"..). If the plaintiff calls and '-amities the as a witness, he is not when afterwards examined ns a. witness in his own case to be treated as a recalled witness, but his RECALLING W II 159 counsel has a righl to examine bim, and p> proi his defence ac fully as if the defendant had nol been previously called as a witness by the plaintiff: Betta \. Venning, 1 Pug. l*''.7 (N.B.). RECALLING WITNESSES. It is in the discretion of the Judge whether he will permit a witness to he recalled: Cattlin v. Barker, 5 < '. P. - Where a party supporting ;i deed proves the handwriting of a de- ceased witness in order to raise ( hf presumption ot' due execution, the other pariy maj shew the character of such witness as corroborative of evidence tending to shew thai the deed was a forgery concocted by him: Chamberlain v. Tun-ana; 14 Chy. L81. In assumpsit for breach of promise of marriage the defendant is entitled to cross-examine the plaintiff's own witness respecting the general bad character of the plaintiff: McGregor v. McArthur, 5 l'. C. C. 1'. 493. In an action on a Crown bond in which the defendant pleaded non est factum proof of an admission by him that it was his bund, is nol an estoppel; and ■ having been given by the Crown of the handwriting of the subscribing witness, the defendant was allowed to give evidence witness was a forgery: Reg. v. Robertson, <> All. L13 (N.B.). The defendant's counsel desired at the dose of plain- tiff's case to recall a witness to examine him as to what he meant when he spoke of the delivery of the deed, having already had the opportunity of cross-examining him on the point. The Judge who tried the case declined to allow the witness to be recalled for that purpose: Held, that ii was a matter within the discretion of the , and ill sxercised the discretion wisely: Graham v. Graham, 2 R. & C. 265 (N.S.). A witness for the plaintiff denied on cross-examination having made a statement in presence of I... who was afterwards called by the defendant and contr ':u: Held, that the plainti I 'II evidence in reply to rebut L.'s testimony and confirm that of his own witness, such evidence not being properly part of the plaintiff's case in the first instance: Whelpley v. Riley, 2 All. 27"> (N.B.). The Court will not review the disci E the Judge at the trial in receiving evidence to contradict a party's own witnesses as being adverse, nor in receiving evidence on the part of the defence after the close of the plaintiff's case, even though for the purpose of corroborating the defence: Herbert v. Mercantile Fire In- surance Company. 43 I . C. It. 384. Where a witness on cross- examination denied haying signed a paper, but which was not then shewn to him, and the opposite parly afterwards produced the paper and pave evidence to prove the witnesses's signature to it. the witness may be recalled to disprove the signature: Tomkim v. Tibbits, 1 Han. (N.R.I. L60 DISCREDITING WITNESSES. DISCREDITING WITNESSES. Although a witness's answer upon a collateral fact is usually con- clusive, yet where the object of the inquiry is to prove (hat the witm Qdeavoured to corrupt am ive false testimony in the cause, his denial of the fact or refusal to answer will not prevent the party from proving it by other evidence: The Queen's Case, 2 B. & B. 311. But this can only be done by the opposite parly; the person calling a witness having once put him forward as a person worthy of belief, though he may contradict him, cannot aficrwards discredit him if the testimony of the witness should turn out unfavourable, or even should the witness assume a position of hostility towards tbe party calling him: Kirrr \. Ambrose, ."> B. & C. 71!>. The Ontario Evidence Act, s. 19, provides:* Proof of 19. (1) A witness may be asked whether he has been convicted of anv crime, and upon being so asked, if he either denies the fact ton of a wit- or refuses to answer, the conviction may be proved; and a certificate '^'containing the substance and effect only (omitting the formal part) hii if of the charge and of the conviction, purporting to be signed by the officer having the custody of the records of the Court at which the offender was convicted, or by the deputy of the officer, shall, upon ficate P ro °f °f the. identity of the witness as such convict, be sufficient of convic- evidence of the conviction, without proof of the signature or of the official character of the person appearing to have signed the certificate. (2) For such certificate a fee of $1 and no more may be demanded or taken. INFERENCE FROM NOT CALLING THE PARTY. Since parties have been made competent witnesses it has been a common practice to comment on their absence as ■witnesses, and to make observations on it as a suspicious suppression of unfavourable testimony. There seems to be no legitimate objection to such comments ; and •where a party is present in Court, and testimony has been given which he must be able if untrue to contradict, and is interested in doing so, great weight will naturally be given to such comments. But the mere fact or his not being offered as a witness is not per se evidence against him. though it may turn the scale if his absence is unexplained, and Compare R. S. B. C. c. 71. s. 32. R. S. N. B., c. 127, s. 18. R. S. Man., none. R. S. N. S., c. 163, s. 45. OONTB UDK r v. n 161 there is oth i evidence or some ambiguous admission by hi of Court. See M'Ketoen v. Cotohvng, L'T L. T. Ex. 41. The • Borne resemblance i<> thai of admissions implied fr< acquies- cence in ta ients made in the party's presence. CONTRADICTING OPPONENT'S WITI In order to impeach tlie credit of a witness evidence may be given of statements made by him at variance with his testimony on the trial; but to lay a foundation for the evidence of such contradictory declaration or conversation the witness must be asksd on cross-examination whether he has made such declaration or held such conversation: 'I' he Queen's Case, 2 B. & B. 301. Before he can be contradicted he must be asked as to the time, place and person involved in the supposed contradiction. It is not enough to ask him the general question whether he has ever said so and so: Angus v. Smith, M. & M. 474. Where the witness merely says that he does not recollect making the statement, such statement may be proved by a cross-examining party. "Where the object in proving the statements of a witness is not merely to contradict him, but to impeach his moral character by proof of loose and unbecoming language, the evidence seems admissible without previous enquiry of himself: Carpenter v. Wall, 11 Ad. & E. SO: 7 !. Where a document is offered in evidence to contradict the statement of a witness as to a material fact denied by him, it is admissible though it also tenr contradict or discredit some other relevant pari of his testimony, then other evidence may be received to contradict him; and a K.K.— 11 162 CONTRADICTING WITNESSES. may be considered as " relevant,'' though not part of the transaction in issue, if i he truth or falsehood of it may fairly influence the helief ul" the jury as in the whole ease: semble, Melhuish v. Collin; 15 Q. B. NTs. 19 L. J. Q. B. 493: hut a merely irrelevant inquiry cannot be allo.ved. It is true that by shewing the levity or falsehood of a witness even on irrelevant matters his testimony would in some degree be discredited, yet the expediency of confining the field of in- quiry at nisi prius within a reasonable compass has made it necessary to assign a limit to such collateral issues. Without such restraint the examination of each witness might give rise to different issues remote from the immediate issue on the record, which the parties have not come prepared to try, and by which both witnesses and parties might be unfairly prejudiced. CONTRADICTING PARTY'S OWN WITNESS. If a witness gives evidence contrary to that which the party calling him expects, that party cannot give general evidence to shew that the witness is not to be believed on his oath: Ewer v. Ambrose, 3 B. & C. 749. And although it was always considered that a party might contradict the evidence of his own witness upon facts material to the issue, yet it was long a ques- tion whether it was competent to him to prove that the witness had previously given a different account of the transaction: 8. C. Id.; Melhuish v. Collier, 15 Q. B. 878, 19 L. J. Q. B. 493. In the last case it was held that the witness may at all events be examined as to his former statements, and contradicted as to any facts that are relevant, although the direct effect may be to discredit him; and it has been the constant practice to call evidence to contradict the statement of other witnesses already called by the same party; as where attesting witnesses deny their own signature. See also Fried- lander v. London Assur. Co., 4 B. & Ad. 193. And now it is pro- vided by the Ontario Evidence Act, s. 20.* How f -jo. A party producing a witness shall not be allowed to impeach d^cred'ir''' n * s cre< ^* ''.V general evidence of bad character, but he may contradict his own him by other evidence, or if the witness in the opinion of the Judge wi nf.ss. or ot ] H , r p erson presiding proves adverse, such party may, by leave of the Judge or other person presiding, prove that the witness made at some other time a statement inconsistent with his present testi- mony; hut before such last mentioned proof is given, the circum- * Compare R. S. P.. C. c. 71. s. 33. R. S. N. B., c. 127, s. 15. R. S. Man., none. R. S. N. S., c. 1G3, s. 42, I ONTB IDIOTING \\ [TNES8ES. 163 stances of the proposed state at, sufficient to * 1 • • >; 1 u 1 1 : » t « - the particu- lar occasion, shall l>e mentioned to the witness, and be shall be asked whether <>r nol be did make such statement. It will he s. en thai leave of the Judge is made a condition pre- cedenl to the proof of former inconsistent statements, and also pre- monition and pre-examination as to such statements. In one particu- lar the A.c( seems to limit the former admitted liberty of calling witnesses to contradict another witness called by the same party, for in such cases it has been the practice for counsel to consult only their own judgment in calling other witnesses to prove all relevant facts, although their testimony may incidentally contradict the testimony of one a heady called on the same side. This difficulty has been noi iced by the Court in (Irecnough v. Ecdcs, 5 C. B. N. S. 786, 28 L. .1. ( '. P. 1G0; but it seems to have been the opinion of the Court in that case that the Act is not to be construed as limiting the former liberty to call other witnesses to contradict the testimony of the adverse witness, it was there decided also that " adverse " means hostile and not merely unfavourable, and that the inconsistent state- ments of the witness are only admissible where the Judge considers his animus to be hostile. A series of letters may be used for the purpose of contradicting the witness although one only be directly inconsistent: Jackson v. 'I'liomason, 1 B. & S. 745, ^1 L. J. Q. B. 11. Where a witness gave evidence quite different from the proof in the brief, which had been prepared in the usual way from the previous ents of the witness to the attorney, Bramwell, 1'.... allowed him to be examined under this section as to his previous oral statements attorney, and also allowed the attorney to be called to contra- dict hin;: Amstell v. Alexander, It; 1.. T. X. S. 830. But in a similar ease it was held that the section was not meant to apply to the loose ents made by the witness to the attorney with a view to prepare the evidence, and the Court granted a rule nisi for a new trial on the ground that witnesses had been called at the trial to prove such state- ments: Reed v. King, 30 L. T. 200. II. T. L858, Ex. Where a witness had t;iven contrary evidence on his examination in bankruptcy, i' that evidence was allowed to be used to contradict him: Pound v. Wilson, 1 F. ,v- F. 301. See also Dear v. Knight, 1 F. & F. t :;: '. '' has !■ en held that -where a party calls other witnesses to contradict his own witness as to a particular fact, the whole of the testimony of the contradicted witness is not therefore to be necessarily repudiated: Bradley \. Ricardo, S Bing. 57. But in Faulkner v. Hrim. 1 F. & F. 2..". Lord Campbell, C.J., intimated that tl of such contradiction was to throw over the evidence of the witness altogether. 164- CANADA EVIDENCE ACT. The following sections of the Canada Evidence Act, R. S. C. 1906, chap. 145. will be found useful: Incriiiiiii- 5 x () witness shall be excused from answering any question upon questions. ,nc ' .-round that the answer to such question may tend to criminate him. or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person. Answer 2. If with respect to any question a witness objects to answer upon the ground that his answer may tend to criminate him. or may against tend to establish his liability to a civil proceeding at the instance of witness. t jj e Q rown or f any person, and if but for this Act, or the Act of any Provincial Legislature, the witness would, therefore, have been excused from answering such question, then although the witness is by of this Act, or by reason of such Provincial Act, compelled to answer, the answer so given shall not be used or receivable in evidence against him in any criminal trial, or other criminal proceeding against him, thereafter taking place, other than a prosecution for perjury in the giving of such evidence. Evidi 'I. A witness who is unable to speak may give uis evidence in any ' mute - other manner in which he can make it intelligible. Expert 7. Where, in any trial or other proceeding, criminal or civil, it witnesses. is intended by the prosecution or the defence or by any party, to sine as witnesses professional or other experts entitled according Not more to the law or practice to give opinion evidence, not more than five of without s '"' !l vi, " , ' be called upon either side without the have of the Court or Judge or person pi When 2. Such leave shall be applied for before the examination of any leave to be obtained. "' the experts who may be examined without such le nina- 12. A witness may be questioned as to whether he has been con- to victed of any offence, and upon being so questioned, if he either denies previous conviction ''"' f ;H ' 1 or ret uses to answer, the opposite party may prove such . miction. lie conviction may be proved by producing. How con- ificate containing the substance and nly, omitting .',,',, .,.,.',) 'he fort lal part, of the indictment and conviction, if it is for an in- the summary conviction, if for an offence punishable upon summary conviction purporting to be signed by the clerk of the Court or other officer having the custody of the records of the conviction, if upon indictment, was had, or to which the conviction, if summary, was r. tnd — >f of identity. DECLIN1 ■ i.K. 7. il) A witness shall nol be excused from answering any ques- Wii timi upon iln' ground thai the answer may tend to ■ him, or 1 . .. , i may tend to establish lus liability to a civil pi • • .if thi Cro a in- of any person or i" i ion tinder anj tendi Art of the I ■>■ -I-I-' I "!•.' of On' ( '2 ) If wiih respeel to any question a witn upon any of tl mentioned in subsection 1. and if, but for "" t ; ■ in this section or any Acl of the Parliamenl of Canada, he would there- evidence foiv have been excused from answering such question, then, although lh.' witness is bj of this section or by reason of any A' of I anada compelled to answer, the answer so given shall nol li" used or receivable in evidence against him in any civil proceeding or in any proceeding under any Act of the Legislature of Ontario. " To entitle a party called as a witness to the privilege of silence, the Court must see from the circumstances of the case and the nature of the evidence which the witness is called to give that there is reasonable ground to appre- hend danger to the witness from his being compelled to answer. If the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself the effect of any particular question:'' Reynolds, 20 Ch. D. 294 C. A. Thus the Judge is to use his discretion whether he will grant the privilege upon the bare claim of the witness, or whether he will investigate 'he claim by further inquiry. Of course the witness must always pledge his oath that he believes the auswer to the question will tend to criminate him, and if he nssi^us a reason which, in the opinion of the Court, will not eliminate him, he is not privil >tt v. Miller, John. 220, .1. ch. r.si ; Ex parte Aston, 4 De G. & J. 320 28 !.. J. Ch Counsel interested in excluding the evidence will not be allowed to argue in support of the objection: R. v. \dey, 1 M. & Rob. 94. A witness is not compellable to ansv for the mere purpose of degrading his character: Cook's Case, 1.3 How. St. 34; Friend's Case, Id.. 17 Case, 16 How. St. Tr. 101; though such qu< lly asked: />'. v. Edwards, 4 T. It. 440; B. v. Holding, Arch. Cr. ndell \. Pratt, M. ! 108. See the cases collected: 1 Thill. If the witness Compare K. R. Man., c. 7>7. S. X. i'>.. C 127 R. S. B. C, c. 71, b Et. S. N. 166 CHARACTEB EVIDENCE. choose to answer, his answer is generally conclusive: R. V. Watson, 2 Stark, 149. A solicitor when qu as a witness with regard to matters involving his client's interests, should decline to answer unless directed or at least permitted by the Court: and where a different course was taken: — Held, on motion for a new trial, that it might be deemed a surprise upon the client, and a new trial was granted with costs to abide the event: Livingston v. Gartshorc. 23 U. C. II. 166. Communications between solicitor and client are privileged, no matter at what lime made, so long as they are professional and made in a professional character: Macdonald v. Putnam, 11 Chy. 258, not followed: Homelyn v. White, G P. R. 143. Where a solicitor or counsel of one of the parties to a suit has put his name as a witness to a deed between the parties, he ceases in respect of the execution of the instrument to be clothed with the character of a solicitor or counsel, and is bound to disclose all that passed at the time relating to such execution : Magee v. The Queen, 3 Ex. C. R. 304. When a plaintiff refused to answer questions to state whether or not he apprehended serious consequences if he answered, and the Judge directed that there had not been sufficient proof made: Held, that the defendant was entitled to the oath of the plaintiff that he objected to answer for fear that in doing so his answers might tend to criminate him. Judgment appealed from (20 N. B. Hep. 40) reversed: Power v. Ellis, 6 S. C. R. 1. The doctrine of privileged communications as between solicitor and client exists for the benefit of the client and his representatives in interest, not for that of the solicitor : Stewart v. Walker, 6 O. L. R. 495. EVIDENCE OF CHARACTER. In general, in actions unconnected -with character, evidence as to the character of either of the parties to a suit is inadmissible, being foreign to the point in issue and only calculated to create prejudice. For the same reason where particular acts of misconduct are imputed to a party, evidence of general character is excluded; but it is otherwise where general character is put in issue: 1 Taylor, Bvid. S., 328-329. As, however, the veracity of a witness is always a point in issue, his character for veracity may be impugned by the party interested in discrediting him by shewing that he is unworthy of credit. If a witness's character for veracity be impeached witnesses may be called in support of it. Although evidence is admissible to shew that a witness bears such a character and reputation that he is un- worthy of credit, yet it is not allowed (with the exception of facts l.X< LUSION OF W I I 167 which ^<» i" prove that the witness is nol an impartial one) to prove particular facts in order "> discredit him: I'. \. Layer, 14 How. Si. Tr. 285. Evidence of particular facts is admissible where the facts sought to he proved go to shew th.it the witness does not stand indifferent between the contending parties. Thus it may be proved that the witness has been bribed: B. V. Langhorn, 7 How. St. Tr. 440; or thai he has endeavoured to suborn others: /.'. v. Stafford. Ld., Id. 400. See Att.-Gen. Hitchcock, l Exch. '.).'!. In I', v. Ycwinn. '2 Camp. 638, the witness was asked whether he had not said that he would be avenged upon the prisoner and would soon fix him in gaol. This he denied and he was allowed to be con- tradicted. The question as to the witness's character for cred- ibility must be put in general form: Maivson v. If art-tin];. 4 Bsp. 102. The usual form of the question is as fellows: "From your knowledge of the witness do you believe him to be a person whose testimony is worthy of credit?" EXCLUSION OF WITNESSES. The Ontario Consolidated Rules of Practice provide: — o47. The Judge at the trial shall ar the request of either party Exclusion order a witness to be excluded from the Court until he is called t0 OIWlt " give evidence, and also if the Judge deems it expedient, a party in- tending to give evidence: or he may require such party to be examined before the other witnesses on his behalf. Any such witness or party who does not conform to such order shall be liable to be punished as to the Judge may seem just, and the Judge may iu his exclude the testimony of any witness or party who does no conform to such order. During the trial the Court will on the application of either party order all the witnesses in the cause except the one under examination to go out of Court. But if the solicitor in the cause is a witness, he will in general be suffered to remain. ! ance being necessary to the proper conduct of the cause: Pomcroy v. Baddeley, lly. & M. 430. This, however, is a matter enti ■ the ion of the Judge. If the witness remains af • withdraw it will nol necessarily prevent his being v. McWilliams, 6 Bing. 683. It is not the practice to order ei he:- of the parties out of Court so long as their conduct there is unobjec- tionable: Charnock v. Dewings, '■'< C. A. R. & K. 378. B party can now be a wi such hi' is liable to lie ordered out of Court. As. however, a party may conduct his own case in Court, examir. witnesses, and give evidence as one himself: Cobbett v. Hudson, 1 E. 16k comparison op handwriting. & B. 11 : it follows that the party in such a case lias the right to remain in Court. Notice had been given on a previous day of the assizes that parties to the record wishing to give evidence must not remain in Courl during the examination of other witnesses, and the Judge rejected the evidence of a defendant for disobedience of such notice: Held, thai he had authority to do so: Winter v. VLixer, 10 U. ( '. R. 110. Bui it was held otherwise in Strachan v. Jones. 2 U. C. « . !*. 253; and in MacFarlane v. Martin, 3 1 . C. C. P. C>4. See also Mahoney v. Macdonell, 9 O. R. 137; Black v. Besse, 12 O. R. 522. re in an action for goods sold and delivered, plaintiff made out a prima facie case through his clerk, who proved a delivery of the goods; and the promise to pay on request implied therefrom w pelled by defendant, who stated a special contract varying from that implied: Hold, that the plaintiff was admissible as a witness to reply to the new case set up by defendant; and semile, he could not be "\cluded as a witness by reason of his presence in Court during the examination of his clerk : McFarlane v. Martin, 3 TJ. C. C. P. 04. At the beginning of a trial all witnesses were ordered out of Court except the parties to the action. Judgment having been given dis- missing the action as against the defendant P., his co-defendant M. entered upon his case, and called P. as a witness. P. had remained in Court and heard the whole of the evidence adduced by the plain- tiff, and his evidence was rejected on this ground: Held/, that the evidence of P. was improperly rejected, and a new trial was ordered: Mahoney v. Macdonell, 9 O. It. 137. At the trial of an action the were ordered out of Court. Before the case was closed the defendant's counsel tendered a witness who had remained in Court, but the presiding Judge refused to allow him to be examined: Held, that there must be a new trial. The practice is to receive . but with ire: Black v. Besse, 12 O. R. 522. ►MPARISON OF HANDWRITING. The Ontario Evidence Act provides as follows : — * '■l. Coi parison of a disputed writing with any writing proved to the satisfaction of the Court to be genuine, shall be permitted to and such writings and the evidence of wir- with he same, may be submitted to the Court or jury, as £''""" herwise of the writing in dispute. " Kii riting may have been acquired either by y write, in which case it will be stronger or weaker .are •. S. N. S., c. 163, s. 33. R. S. B. C. c. 71. s. 4:.. 27 . 20. R. S. Man., none. BEFEE8H] \<; MEMORY. according to the Dumber of times and the periods and other circum- stances under which the witness has seen the party write, but it will be sufficient km i I ridence of the wil (however little weighl may be attached to ii in such cases) even il be has seen him write bul once and tb a merely si ning his Burns or the knowledge may have been acquired by the witness ba or ither documents professing to be the hand party, and having afterwards communicated personally tarty upon the contents of those letters or documents, or having othei . by written answers producing further correspond! or acquiescence by the party in some i which they i or by the witness transacting with the party some business to which they relate, or by any other mode of communication between the party and a reasonable presumption that the letters or documents were the handwriting of the party; evidence of the identity of the party being of course added aliunde, if the witness be nol personally acquainted with him : Mudd v. Suckermore, 5 Ad. & B. 730. If uuineness of the document sought to be put iu is disputi collateral question is raised which musl first lie decided: Cooper v. Dawson, 1 F. ..V: P. 550; like all other collateral issues by the Jud Bartlett v. Smith, 11 M. & W. 483. The testimony of experts in handwriting, like all scientific testimony, offers serious dangers as to the credit to be given to it. and should be accepted only after strict testing, and merely for what it is worth, having regard to the other elements of proof in the cause. Proof by comparison of hand- writing is insufficient to establish the authenticity of a signature denied on oath by the person •:■ M is invoked: Descl v. Langlois, Q. R. 15 K. B. 388. The Judge or jury, as the case may be, is without an eviden ;'. 170 REFRESHING MEMORY. a book unless the witness himself saw the copy made and checked it at the time by personal examination while the subject was fresh in his recollection; for then tlio copy is in effect an original entry by himself: Burton v. Plummer, 2 Ad. & E. 341. If the witness be blind the paper or morandum may be read over to him in Courl : Gait v. Howard, 3 Stark 4. ■Where the witness gives his evidence after having re- ferred to a book or other document, it must be produced: Howard v. Canfield, ~> Dowl. 417: and the counsel on the other side has the right to inspect it without being bound to read it in evidence: Sinclair v. Stevenson, 1 C. & P. 582; he may cross-examine upon the entries referred to by the witness without making the book evidence per se for (he party who produces the witness, but if he cross-examine as to other entries in the same book he makes them part of his own evidence: Gregory v. Tavernor, n Buch fad being afterwards proved as directed; and if nol so proved judgment snail be entered for the opposite party unless the Judge otherwise directs. This rule shall noi apply to an action for libel. IMPOUNDING DOCUMENTS. The Ontario Evidence Act provides : — * 53. Where a documenl is received in evidence, the Court admit- When in ... , , , . . . -tnme-nt* ting the same may direct that it be impounded and kepi in such g ere( j j n custody for such period and subject to such conditions as may seem • proper, or until the further order of the Court, or of the High < ™ .j'.Vi'" or a Judge thereof or of a County or District Courl (a-- the case may be). FIXCTIONS OF JUDGE (S..,. also pages 185-187. ) 554. Tin- Judge may, at, or after the trial, direct that judgment Ju< 3 , ... direct - n- be entered or may adjourn the case for further consideration. try of 558 The officer attending the trial shall enter all such findings ot J u " or i fact as the Judge may at the trial direct to be entered, and the direc-j U( !U „ nc . tions, if any, of the Judge, as to judgmenl in a book to be ! ! t..r the purpose, and the findings shall also be indorsed on the record As to the duty of the Jnd;e in directing the jury the '»• Judge is bound to direct a verdict for the defendant unless tnere is some evidence on which the jury may reasonably act. A mere scintilla of evidence is not sufficient: Edmamda ▼. Prudential Assur. Co., 2 An. Ca. 4S7. The rule is that if the evidence be such that the jury could conjecture only, not judge, it omght not to go to the jury, and the onus lies on the party offering the evidence; and if he offers only evidence consistent with either supposition of fact he fcs not entitled to have it put to the jury: 1' Hayter, I.. K. 6 c. p. r_\ 43. Where a Judge undertakes to put the evidence before the jury, he is not at liberty to present in a strong light all the facts and circumstance-.- that make for the contentions of one of * Compare R. S. R. C, c. 71, s. 4(1. R. S. N. S„ none. R. S. Van., c. .", s. 34. R. S. X. T'... none. v C. R. 558. Compare R. S. Man., c. 40, s. 573. I ; 2 F UNCTIONS OF J D DQ I '■ . the parties, and entirely or practically ignore the evidence that makes for his opponent. A charge constructed on such lines is tainted with n. and the verdict resultant thereupon in favour of one of ;he parties will not stand unless the case is so clear that a verdict for the opposite party, on the evidence before the Court, would be sel aside as one that no reasonable jury could give: Smith v. Archi- bald, 41 N. S. R. 211. The power which a Judge has to take a case away from the jury should be exercised only when it is clear that the plaintiff could not hold a verdict in his favour; if the matter is reasonably open to doubt, the Judge should let the case go to the jury, and then decide, if necessary, whether there is any evidence on which the verdict can be supported: Nightingale v. Union Colliery Co. of British Columbia, 9 Brit. Col. L. R. 452. It is no ground for a new trial that the Judge refused to submit any particular question to the jury: but if the Judge refuses to charge the jury in respect of the subject-matter of any question which counsel desire to have submitted, it may be made the subject of a motion for a new trial isdirection : Turner v. Burns, 24 O. R. 28. The Judge's charge to the jury can be attacked only for error in law: City of Montreal v. Ryan, Q. R. 17 K. B. 14:!. An objection was taken to the charge as being adverse: — Held, that (he charge could not be complained of, for to give effect to the objection would be to compel the Judge to submit the case to the jury, leaving them to apply the evidence with- iny assistance from him, which was not the practice in this province : Scougall v. Stapleton, 12 O. R. 206. It is a rule of practi- cal wisdom that; Judge is not allowed to guess: Re Howell (1894), :; Ch. j). 652; Seal v. Michigan /.'. B. Co., 1 O. W. N. 80. When idered the Judge has the right to ask the particular >ose for which it is offered, and if the counsel refuse to state it he may reject it: Kt y v. I homson, 1 Han. 2!)o (N.B.). May admit nee even after the counsel has addressed the jury, and the Court will not interfere if the evidence is not in itself inadmissible or no injustice has been done: Doe v. Connolly, 3 All. 837 (N.B.). It is ary with the Judge at the trial to allow the counsel to with- draw (Per Ritchie, < .J.) Where evidence is pressed in against the opinion of the Judge the counsel must stand by it: Tdton v. Temple, 1 Han. 274 (N.B.). It is in the discretion of a Judge at nisi prim to refrain from committing a witness for contempt in not answering, if it be sought by the questions pu1 to elii admission of facts importing scandal upon himself: and especially itness be intoxicated and not able to give evidence at all. Mnrr v. Marr, 3 IT. C. C. J'. 36. In an action upon a buildin tract the plaintiff tendered evidence to shew that the architect had i maliciously in the rejection of naterials, but the trial Judge required pi adduced to shew that the materials had been wrongfully rejected, reserving until that fact should be . I established the consideration of th on whethei proved, and, if i" would \v Bufficienl to establish it. Upon this ruling, plaintiff declined to • any further evidence, and thereupon judgment « d for the defendants: Held, that this ruling did i was merely a direction as to the marshalling of evidence within . Cit'i ronto, 25 S. C 579. Semble, thai the precise time al which upon a ti alar evidence may be introduced is for the Judge exclusively to d Robinson v. Rapelje, 4 U. C. It. 289. Dp il by jury in directing the jury as to the law is bound to call their attention to the manner in which the law should be applied by to their findings as to the Tacts, tb i whicb b depending on the cir< is of the case he is trying. And the form of the charge was defective in this i ■-nth- left the jury in a confused state of mind as to the i a new trial was directed: r ' Association \. -. 10 !'.. C. R. 47:;. A Judge whether of the Supreme Court or of an inferior Court has. with respect to words uttered by him in the course of judicial proceedings with reference to the case hefore him, an absolute privilege: Primrose v. Waterston, 4 F. 783. Where it was evident from the conduct of counsel on both sides thai they took it ranted that the trial Judge had knowled in facts estab- lished in another action, which had be ■ him, with a jury, and out of which this action arose, and that for thai reason no evidence was given of such facts: — Held, that the trial Judge might properly make use of his knowledge: Pease v. Town of Moosomin. 5 Terr. L. R. 207. There can be no valid objection ■ non- jury against deciding from an enumeration of witnesses: Tid Toronto, 12 O. W. It. 994. In a case tried with a jury if the jury brings in an informal contradictory or inconsei rdict the Judge has the power and it is hrs duty to poii I he jury th di in it. to give tl ry explanations, and to order the jury to reconsider and correct it : Jolicoeur v. Grand Trunk /?. W. Co., Q. TC. .",1 S. C. 157. There is no fixed rule of law defining the d< of misconducl which will justify the dismissal of a servant. The question is one of fad for the jury. But it is not for the Jud whether there is any evidence to justify dismissal, and if tl be no such evidence he should nol submit an issue of fact. Tie may also direct, guide and assist the jury by informing them of the nature of the acts which in law would justify di and of lity of the facts to the issues raised: ('louston v. Oorry, 75 L. .1. P. C. 20; (1906) A. * '. 122; 93 L. T, ' -2 T L R K>7. The authorities on the subjeel of merely declaratory judgments are collected in Messrs. Holmes the Judicature Act, p. 39. Th< sten v. Colin.- 174 RIGHT TO BEGIN. L. T. N. S. 903, was decided under Order 25, Rule 5, which is Hie as our present enactment. There the learned Judge said: "The rule leaves ii to the discretion of Court to pronounce a declara- tory judgment when necessary, and it is a power which must be exercised with great care and jealousy: Bunnell v. Gordon, 20 O. It. I'M. See also Iiof,r, v. Midland /'. W. Co., L. R. 4 Eq. 310; Lady 1 avpdale v. Briggs, 8 D. M. & G. 391. RIGHT TO BEGIN. It is often a subject of enquiry whether the plaintiff or the de- fendant is to open the facts and evidence to the jury. This may be an advantage, and is then claimed as a right, as where evidence is anticipated on the opposite side which will give a right to reply generally on the whole case ; or it may be a burden, as where a party relies on the witnesses of his opponent or on the difficulty of the proofs incumbent on him. The right or obligation to begin generally depends on the nature of the issue, and also on the rules eeting the onus probandi at the commencement of the trial, and the test has been said to be not on which side the affirmative lies, but which side would be entitled to a verdict if no evidence be given : Jjeete v. Greslunn Insurance Vo., 15 Jurist 1101. Ex. M. T. 1851. This test, however, is only another way of stating the common rule that he on whom the burden of proof lies must begin, for this must be ascertained before it can be determined which side is entitled to the verdict. As a general rule the proof lies on him who affirms, except in cases where the presumption of law or fact is in favour of the affirmative. It must, however, hi' borne in mind that regard must be itad to the effect and suDstance of the issue, and not to its gram- matical form: Sword v. Leggatt, 7 C. & I". 615; Amos v. Hughes, 1 M. & Rob. 404. The most general criterion that can be given as to the right to begin is that •"he begins who in Hie absence of proof on either side would substantially fail in the action." In actions for libel, slander and injuries to the person, the plaintiff shall begin ugh the affirmative issue is on the defendant : Mercer v. Whall, 5 Q. I'.. 117. 462. The general rule as laid down in this case is that wherever the record shews that something, even damages only, is to be proved by the plaintiff, he ought to begin whether the action be in contract or tort. Where the damages are of ascertained amount or inal, then it seems that the defendant may begin if the pleading will admit of it. Where the affirmative of any one material ■ is on the plaintiff, and lie undertakes to give evidence upon it. he has a right to begin as to all: /,'oirlin.s v. Desborough, 2 M. & Rob. 320; Collier v. Clnrl:. 5 Q. b. 467. The plaintiff in replevin has the same right as in other actions, though both parties are actors: Curtis v. Wheeler, M. & M. 493. In an action for the recovery of BIG] ',l . 175 land the defendant may in Buch cases, by admitting a title in the plaintiff, entitle himself to begin. Thus, when- the plaintiff claim beii al law, and defendant as devisee, il is the settled rule that the defendant by admitting plaintiff's pedigree and the dying seized may entitle himself to begin and rely: Ooodtitle & Reveti \. Brahatn, 4 T. R. i:»7. Generally in order to entitle the defendant to begin by admitting the plaintiff's case he must admit the whole without qualification: Doe 7. At the trial of a collision action, although the defendants have admitted that both vessels were to blame, it is still the plaintiff's duty to begin: The Cadeby, 78 U J. P. 85; (1909), P. 257; 101 L. T. 4S; 25 T. L. R. 630. RIGHT TO REPLY. In general the party who begins has a right to the general reply when the opposite parly calls witnesses. Where the defendant brings evidence to impeach the plaintiff's case, and also sets up an entirely new case, which again the plaintiff controverts by evidence, the de- fendant's reply is confined to the new case sel up by him, for upon that relied on by the plaintiff tho defendant's counsel has already com- mented in the opening of his own case, and the plaintiff is then entitled to the general reply: Roscoe, 200. Unless the defendant give evidence the plaintiff is not entitled to reply, there being no new facts upon which his counsel can comment. As the defendant's counsel has to announce his intention to call witnesses al the close of the plaintiff's case, if he do nol do so he would no! be allowed to open fresh facts in Ins speech, for it has been held that when he has allowed the plaintiff's counsel to sum up, he cannot afterwards change his mind: Darby v. Ouselry, 1 II. & N. 1: 25 L. J. Ex. 227. The defendant having adduced evidence, although only by way of putting in certain documents on the cross-examination of one of the plaintiff's witnesses: Held, 1. Following Pest on the Right to Begin, section 132. and Rymer v. Cook (1865), Moo. & M. 86n„ that plain- tiff's counsel had the right to reply. 2. That the error of the Judge in refusing to allow the reply could only entitle the party to a new trial, if it appeared that the course of justice had been thereby in- terfered with, and some substantial injury done to the party com- plaini d. Bather v. I'.rayne (1S54). 5 C. B. 655; Geaoh v. Jngall (1868), 14 M. & W. 95, followed. 3. That in the present plaintiff could suffi r aothing from the order in which the jury were addressed, as his evidence was weak and the defendants were entitled rdict, and that a new trial should nol be granted: Quintal v. Chalmers, 12 M. 1. R. 231 (Man.). Application to remit action to the Court to take evidence after refusal to call witn< wdonald V. Worthington, 7 A. R. 531, ft S. C R. 327. A plaintiff is i, : in presenting evidence to divide his case, either by omitting to give evidence originally upon a material point and offering such evidence in reply, or by givinj upon particular point in bis original case, and offering other evidence upon the name point in reply: Harvey v. The Canadian Pacific Ry. ADDRE88ES TO Jl 177 Co., 3 M. L. R. 266 (Man.), 9 B. C. R. 327. When points of law arise incidentally all the counsel on both sides are usually heard by the Court, and tin 1 ading counsel of the party making the objection or submitting the point alone replies. < »n the claim of the right t<> begin it was held in RawUna v. Deaborough, 2 M. & Rob. To. that only one counsel is to be heard on The objection of a • ii which he considers himself not bound to answer is not a point on which counsel in the cause are heard: B. v. Adey, 1 M. & Rob. 94. Where the party conducts his c ; ise. addn jury, and examines witnesses in person, it is questionable whether counsel can he heard for him on a point of law: Moscatti v. Lawson, 1 M. & Rob. 454. The probability is that in the present state of the law counsel could he heard. It has been decided that a party who conducts his own case .annul on that account be excluded from giving evidence as ;i witness: Cobbett v. Hudson, 1 V,. & B. 11. Where the defend- ants have the same interest, senior counsel alone mas' address the jury, while witnesses can be examined by counsel successively: Chippendale v. Masson, 4 Camp. 174. Where the defendants rppear by the same solicitor and plead a joint defence, the pra< hear one counsel only. Perring v. Tucker, M. & M. 392. The order in which co-defendants shall examine and address seems to be in the Judge's discretion: Fletcher v. Crosby, 2 M. & Rob. -117. Set-off and counter-claim are now in the same position as if they formed a statement of claim by the defendant against the plaintiff. Where the defendant claims to be entitled to contribution or indemnity over against any party nol a party to the action, the defendant may bring him in. The directions for trial given by the Courl or Judge will regulate the manner in which the questions are to be tried, and the third party may have have to defend the action. The defendants appeared by the sai te attorney and their defence was in substance precisely the same, but they were represented at the trial by separate counsel. On examination of one of the plaintiff's witnesses both counsel claimed the right t<> cross-examine the witness: Held, that only one counsel could cross-examine the witness: Walker v. Mc- Millan. <; S. C. R. 241. ADDRESSES TO JURY. The Consolidated Rules, 1S97, provide:* 548. tit At the trial the addresses to the jury shall be re u- Addresses laled as follows :- of a i at trial. (o) At the conclusion of the case of the party who begins, if the opposite party states his intention to be not to adduce evidence, * Compare B. C. Rule. 358. X. S. Rules, Order XXXIV.. s. 29. N. W. T., c. 21. Order XXV., s. 259. K.E.— 12 178 ADDRESSES TO JURY. and he has not adduced evidence, the party who begins shall have the right to address the jury a second time at the close of his case for the purpose of summing up the evidence, and the opposite party shall have the right to reply. (b) If the opposite party does not state his intention to be not to adduce evidence, or if he has adduced evidence, he shall have the right to open his case, and (after the conclusion of such opening) to adduce such evidence as he thinks fit, and where all the evidence is concluded to sum up the evidence, and the party who begins shall have the right to reply. (2) Whore a defendant claims a remedy over against a co- defendant, he shall have the right to address the jury after the co- defendant. (3) Where a party is represented by counsel, the right conferred by this Rule shall be exercised by his counsel. The Rule 548 allows the defendant's counsel to sum up his evi- dence, but does not permit the counsel to comment generally on the case: Gilford v. Davis, 2 F. & F. 23; but it must be observed that the summing up usually amounts to a general reply. Where there are several issues, some of which are incumbent on the plaintiff and others on the defendant, it is usual for the plaintiff to begin and to prove those which are essential to his case: Jackson v. Hesheth, 2 Start. 521. The defendant then does the same, and the plaintiff is then entitled to go into evidence to controvert the defendant's affirmative proofs. The defendant's counsel is entitled to comment by way of reply upon such last mentioned evidence in support of his own affirmative, and the plaintiff's counsel has a general reply. Where the Judge decides that there is no evidence to go to the jury on the plaintiff's case, his counsel will not be entitled to sum up : Hodges v. Ancrum, 11 Ex. Ch. 214. Where a single fact or transaction forms the whole sub- !" dispute between the parties on the pleadings, which is affirmed on one side and denied on the other, counsel for the plaintiff is bound to open the whole case in chief; and cannot go into general evidence in reply. Thus, where the plaintiff's title to a mine was in issue, and the plaintiff relied on prima facie evidence from posses- sion, he was considered not to be entitled to support his case in reply by the general evidence of his title: Lacon v. Higgins, 3 Stark. Lot where the defendant traverses and also justifies, the plain- tiff may reserve his case on the justification until the defendant has proved it. Or, he may enter upon the disproof in the first in- stance, in which case he will not lie allowed to give further evidence of the same kind in reply: Browne v. Murray, Ray. & INI. 254. Where a party tenders documentary evidence prima facie admissible, the other party will not he allowed to interpose with evidence for the purpose of excluding it; but evidence to disprove possession of an ( 01 D SOLICJ ■ 1 7f) instrument of which secondary eviden adered: Harvey v. .Mitchell, 2 M. & Rob. 366; or to shew thai a contract about which the witness is questioned is in writing: Cow v. Couveless, 2 F. & V. 139, may be given immediately. Where the Judge has expressed an opinion adverse to the admissibility in evidence of the document, the co king to put it in must formally tender it in evidence, and require a taken of ilie tender: and if this course is ed the rejection cannot afterwards be relied upon: Campbell v. Loader, ."it L. J. Ex. 50. Both parties arc hound by the dew taken of their respective cases, and the modi m by their counsel at the trial; and they cannot move for a new trial upon grounds omitted to he urged at nisi prius: Waster v. Carpenter, '■'. C. B. N. S. 172: and where counsel offers evidence for one pui which the Judge rejects, he will not after the trial be permitted to rely upon it us admissible for another purpose: /,'. y. Grant, 5 B. & Ad. 10S1 : nor can he complain of misdirection upon a point which he has in effect waived at nisi prius: Robinson \. Cool;, t; Ta and misstatements of fact by the Judge should be adverted to by counsel at the time, though counsel need not object to the law as laid down by him: Payne v. Ibbotson, 27 L. J. Ex. 341: and where evidence bas been admitted without objection as relevant to the issue, i cannot be objected to as inapplicable after the Judge bas begun to sum up : Abbott v. Parsons, 7 Bing. 563. AVhere the Judge has in the opinion of counsel omitted to submit rial point or view of the case to the jury, he ought i led of it: Major v. Chadwick, 11 Ad. & E. 584; but counsel will not be taken to have acquiesced in the summing up of the Judge in point of law merely because he has not interposed at the time: see Hughes v. G. II'. A'. Co., 14 ('. B. <;. -: !7. Where the point relied on by counsel has been distinctly brought under the notice of the Judge in the course of the cause, it would be very inconvenient to require that counsel should again advert to it by way of protest, while the Judge is charging the jury. A parly appearing in person must examine the witnesses as well as address the jury: Shuttleworth V. Nicholson, 1 M. & Huh. 254. The party in person may conduct his own cause, examine witness, and give evidence in his own favour: Cobbett v. Hudson. 1 V,. & B. 11 : but his wife cannot claim to conduct it in his absence: S. ''.. 15 Q. !'•. 988. A barrister has no privih heard both personally and by Ids counsel in his own cause: Ynr/o" v. Chaplin. 10 ( '. B. 356. The leading counsel has a righl in his discretion to in ind take the examination of a witness out of the hands of his junior, but after one counsel has brought the examination to a close, a qu gularly put to the witnesses by another counsel on the same side: Doe v. Roc. 2 Camp. '2S0. Counsel for the defendant in addressing the jury has no right to ask them whether tbey are satisfied th 'ant is ew''. ' I 180 COUNSEL AND SOLICITOR. verdict as the case stands without calling witnesses: Aloriarty v. Brooks, 6 C. iV 1*. 6S4. Junior cm not at liberty to take posi- tions in argument which conflict with the positions taken by their leaders: International Bridge Co. v. Canadian Southern R. W. Co., 7 A. R. 226, 8 A. C. 723. But see 19 C. L. J. 358. Observations on the duty of counsel when dissatisfied with the ruling of the Judge at nisi prius: Parsons v. Queen Ins. Co., 43 I". C. R. 271. Under section 157, C. L. F. Act, 185G, plaintiff's counsel has no right to address a jury a second time after the address of the defendant's counsel, unless the latter call witnesses: Gibson v. Toronto Roads Co., 3 L. J. 11. Counsel may read a reported case to the jury, in order to shew the law, and for that purpose may refer to the facts; but he cannot go into facts to shew how a former juiy treated the same or analogous facts, and thus argue as to what the verdict should be: Dougherty v. Williams, 32 I'. C. R. 215. Defendant's counsel told the jury that a verdict in favour of the plaintiffs for any sum would carry costs: Quaere, as to the right to make such statement ; but semble, that the objections to a verdict for the plaintiff founded upon it, would apply equally to a verdict for defendant : Carrick v. Johnston, 20 U. C. R. 69. Where complaint is made that counsel at the trial has im- properly inflamed the minds of the jurors by remarks addressed to them, objection must be lodged at the time the remarks are made, and the intervention of the trial Judge claimed; and where this has not been done, the Court will not interfere upon appeal: Somberger V. Canadian Pacific R. W. Co., 24 A. It. 263. Counsel has no authority to agree to the reference of an action in disregard of the conditions imposed by his client on such reference: Neals v. Gordon- Lennox, 71 L. J. K. i>>. 1)30; (1902), A. C. 465; 87 L. T. 341 ; E ' W. R. 140; 66 J. 1'. 757. The rules of etiquette a mem- bers of the legal profession have no effect beyond their relations inter se and do not in any way affect the legal relations between tor and client. If such rules are enforceable, it is only because the members of the profession choose to govern their conduct 1 A solicitor cannot therefore I nsel who a his client has instructed him not to brief, and charge the client with the fees and other expenses incurred in delivering the brief, merely because the counsel is entitled to a brief under the rules of , e. The solicitor's proper course in such circumstance* ber to explain the rule to the client and say that he must the facts to an; counsel whom he briefs, and that such counsel may probably return the brief, or to say that he is himself so clearly rned by the rules and etiquette of the profession that if he is allowed to brief the counsel in question he must throw up his retainer: Harrison, In re, 77 L. J. Ch. 143; (1908), 1 Ch. 28S L. T. 902: Held, that counsel for the plaintiff, in opening t< •.Ml.",. 1S1 .im-y, mentioning the sum claimed in the statement of claim, v. us not so objectionable as i«> li<' a ground for granting i new trial: Jiraden- bur.) \. Ottatia Electric R. W. Co., 19 O. L. K. 34. QUESTIONS TO JURY. The Ontario Judicature Act provides: — 112. Upon a trial by jury, in any case excepl an ac tion for libel. In © Blander, criminal conversation, seduction, malicious arrest, malicious jury • i ation or false imprisonment, the Judge, instead of directing tin- i jury to give i ith >r a g( aeral or a special verdict, may direct the jury ' to answer any questions of fad stated t<» them by the Judge for the ant j' on ^' e purpose; and in such case the jury shall answer such questions, andan.-v. shall not give any verdict; and. on the finding of the jury upon the^i',' questions which they answer, the Judge may direct judgment to be verdict. entered. C. R. 781 is as follows: — 781. I 1 > Where the jury is directed to answer questions of fact, Where and answers some but not all of them, or the answers are conflicting J""-""'' 1 cannot be so that judgment cannot be entered on such findings, it shall not be ent , re d on necessary to move to set aside such findings, but the action may answers. proceed as in (he case of a disagreement of the jury. (2) Whore the answers entitle a party to judgment as to some, hut not all of the causes of action, the Judge may direct judgment to be entered as to those of the causes of action as to which the findings are sufficient to entitle the party to judgment, and it shall . to m >ve o set aside the findings as to other causes of action, but the action may, as to such last mentioned causes of action, proceed as in the case of a disagreement of the jury. Where the jury, in answering questions submitted to them, fail to answer a material question, upon which their answers to other questions depend, their findings will he set aside and a new trial ordered. Assuming that the Court has power to supply a find- in?, on a point not answered by the jury, it will not do so in a case where the evidence is not clear or where it is conflicting: Bloia v. Midland /•'. W. Co., :;r> .V .S. 11. 242. Where a verdict is attacked for non-direction, the onus is upon the attacking party to show that the proper instructions were asked for and refused. And where the charge of the trial Judge has placed the case a hoi >rrectly before the jury, and no injustice has been done by the verdict, and no sub tantial miscarriage of justice has resulted, a new trial will not he allowed for non-direction which has not materially affected the result : Burrill v. Sanford, ."-7 N. S. H. 53;.. 182 QUESTIONS TO JUKY. In an action under the statute C. S. N. B. 1903, s. 79, for com- pensation for death of plaintiff's wife, the jury should be simply asked if the defendant was guilty of negligence causing the death, and if so, in what did such negligence consist. If irrelevant and un- necessary questions are asked, and the Judge's charge in respect, to them is not warranted by evidence relevant to the issue, a new trial will not be granted unless the effect thereof is to prejudice the minds of the jury as to the real question to be tried: per Barker, J., Collins v. City of St. John, 38 N. B. R. 8G. The only object in submitting questions to a jury is to ascertain if they apprehend the case ; but if the Judge does not submit ques- tions, it is no ground for a new trial, if he has properly instructed the jury on the law: Snotc v. Crow's A 7 est Pass Coal Co., 13 B. C. R. 145. By mistake one sheet of paper containing five questions for the jury was lost. The questions were in consequence not answered. They related to one cause of action out of three. The plaintiff was held entitled to his judgment on the causes disposed of by the jury and to go to trial on the other cause not disposed of : Ford v. Cana- dian Express Co., 1 O. W. N. 119. J\o questions having been given to the jury by the trial Judge, the jury prepared questions of their own and answered them. While this memorandum is no part of the evidence it cannot be disre- garded on the question of a new trial: Gilchrist v. Grand Trunk (1909), 14 O. W. R. 9. In an action for breach of contract the defendant alleged that the contract was conditional and the follow- ing question was submitted to the jury : " If such an agreement existed, was it a conditional one?" To which the jury answered: No satisfactory proof that it was."' Held, that this was not an answer to the question: Crockett v. Campbellton (1909), 39 N. B. R. 100. The Judge is not bound under the O. J. Act to submit ques- tions in writing to the jury : Lett v. St. Lawrence and Ottawa R. W. Co., 11 S. C. R. 422: Hinton v. St. Lawrence

\7>. R. S. O. 1877, c. 50, s. 204, makes it imperative upon the jury to answer questions submitted to them, and prohibits them from giving a general verdict instead. But the Judge, after hav- ing put questions, may nevertheless in his discretion receive a gen- eral verdicl : Furlong v. Carroll, 7 A. R. 145. It was objected that a false representation alleged by defendant had not been found to be false to the knowledge of the plaintiff company: Held, that a ques- tion with regard to such representation put to the jury having been ated to by counsel on both sides as one the finding on which would be decisive, it was too late to take this objection; and the effect of the finding must be taken to be that the plaintiffs knew the representation to be false: Star Kidney Pad Co. v. Greenwood, \ n:w i:v JUEOES. 183 5 O. R. 28. Where a question was doI pul to the jury until after they had rendered their verdict and answered the other questions submitted to them, ami after the Judge bad been moved for judg- ment upon these answers. I.n; it was done while till the parties and their counsel were present, and before the jury had lefl the Court room: Held, thai the question had been properly put: McLaren v. Canada Central R. W. Co., 32 U. C. C. P. 324, 8 A. I; 567, INSPECTION OF PROPERTY. By Ontario Consolidated Rules of Practice and the Ontario Jurors' Act, Ont. Statutes 1909, c. 34, provision is made for inspec- tion of property and view by jurors as follows: — .">7<>. The Judge by whom any cause or matter is tried, with orj nc ]g (J without a jury, or before whom any cause or matter is brought by may way of appeal, may inspect any property or thing concerning which any question arises therein. 571. A party in a cause or matter may apply to the Court or a i ns , >fJ cti<>n Judge for an order for the inspection by the jury or by himself or of real or by his witnesses, of any real or personal property, the inspection °f DrToertv which may be material to the proper determination of the question by jury, in dispute, and the Court or a .Indue may make such order upon such P&rtiesor r ' witnesses, terms as to costs and otherwise as the Court or Judge may think fit. VIEW BY JURORS. 572. Upon any application for a view by a jury, there shall be an Party re- affidavit stating the place at which the view is to be made, and the quiring distance thereof from the sheriff's office. Unless the Courl or Judge deposit otherwise orders, the party obtaining the order for the view shall with Sher- deposit with the sheriff the sum of $25 in case of a common jury, and ~ ™ . '. I in case of a special jury, if such distance does not exceed 5 penses. miles; and $31 in case of a comn on jury, and $43 in case of a special jury, if the distance he above ;*> miles, and if such sum shall he more than sufficient to pay the expenses of the view, the surplus shall forth- with be returned to the party who obtained the view or his solicitor, and if such sum shall not be sufficienl to pay such expenses the de- ficiency shall forthwith be paid by such party or his solicitor to the sheriff.* C. R., 570. 572. * Compare B. C. Ruh-. 514 to 516. R. S. Man., c. 40, ss. 5S1 to I R. S. N. B. N. S. Rules, Order L., ss. 4 and 5. 184 blackstom: s summary concluded. View by jurors. Terms of order. Section 86 of the Ontario Jurors An, Ont. Statutes, 1909, c. 34, is as follows: — 86. 1 1 ) Where in an action whether the same is to be tried by a special or by a common jury, it appears to the presiding Judge that in order to the better understanding of the evidence the jurors who are to try the issues ought to have a view of the plate or of the real or personal property in question whether the same be within or without the county in which the trial is to take place, he may v time after the jurors have been sworn and before they give their verdict order that the jurors shall have such vi< (2) The order may be made on such terms as to costs and the adjournment of the trial and otherwise, as may be deemed just, and shall contain directions to the sheriff as to the manner in which and the persons by whom the place or the property in ques- tion shall be shewn to such jurors and any other directions which, under the circumstances, the Judge may think proper. BLACKSTONE (Continued). "When the evidence is gone through on both sides, the Judge in the presence of the parties, the counsel and all others, sums up the whole to the jury ; omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been .uiven to support it. with such remarks as he thinks necessary for their direction, and giving them his opinion in matters of law arising upon that evidence. The jury after the proofs are summed up. unless the case be very clear, withdraw from the bar to consider of their verdict, and in order to avoid intemperance and less delay, are to be kept without meat, drink, tire or candle, unless by permission of the Judge, till they tire all unanimously ed. But if our juries eat or drink at all, or have any eatables about them without consent of the Court, and before verdict, it is fineable, and if they do so at his charge for whom they afterwards find, it will set aside the verdict. Also if they speak with either of tli- parties or their agents after they are gone from the bar. or if they receive any fresh evidence in private, or if to prevent disputes they cast lots for whom they shall find, any of these circumstances will entirely vitiate the verdict. When they are all unanimously ' the jury return back to the bar. and before they deliver their verdict the plai und to appear in Court by himself, attorney or counsel, in order i er the amercement to which by the old law he is liable, as has been formerly mentioned, in case he fails in his suit, as a punishment for his false claim. To be amerced or o mercie is to be :it the Kind's mercy with regard to the fine to be imposed: in misericordia 'if/mini regis pro falto clnmorc suo. The amercement is disused, but the form still continues, and if the plain- vi;i;i>i< i. 185 tiff does aol appear mo verdict can i»- given, but the plaintiff is Baid to !»• nonsuit, non aequitur clamorem auum. Then usual for a plaintiff when he or his counsel pen il he has not . . evidence sufficient i<> maintain bis issue, to be voluntarily nonsuited or withdraw himself, whereupon the crier is ordered to call the plaini ill': and it' neither he nor anybody for him he is non- Buited, th' 1 jurors arc discharged, the action is at an end. and the defendant shall recover his costs. Tic rea son of this practice is that a nonsuit is more eligible for the plaintiff than a ainst him. and after a nonsuit, which is only a default, lie may com nce^the same suit again for the same cause of action; bul after a verdict had ami judgment consequent thereupon, he is forever barred from attacking the defendant upon the same ground of complaint. But in «ase the plaintiff appears, the jury by their foreman deliver in their verdict. Another method of finding a species of special vsrdicl is when a jury find a verdict generalls for the plaintiff, but sul heless to the opinion of the Judge or the Court abovi on a special case stated by the counsel on both sides with regard to a matter of law. When the jury have delivered in their verdict, and it is recorded in Court, they are then discharged. And so ends the trial by jury. VERDICT. The Ontario Judicature Act provides as Eollows:— 111. I pon a trial by a jury, it shall not be lawful for the jury to Court may give a general verdict, where the presiding Judge other- dire ? t J" rv to £ive ;i wise directs, and it shall be the duty of the jury to give a special special verdict if the Court or presiding Judge so directs; and the jury may verdict, except in neral or a special verdict, unless the Court or the pre- . l( . t j OI1 ^ f,, r Biding Judge otherwise directs; but this section shall not apply to libel. actions of libel. The trial of an action for slander having been concluded, the Court adjourned at ''• p.m., both parties I I verdict. lied envelope was left with the sheriff's officer for the Judge, with a paper enclosed signed by all the jury, directing that the de- fendant should "pay the sum of $] damages, and the costs of the suit." Held, that on this being opened in ('our: by the Judge next morning, the jury should have been called together as the plaintiff's counsel required, :•■ assent to the verdict and have it recorded, and ii having been simply indorsed on the record as written, a new trial dered without costs: Ibid, also, that the jury had no p to give costs by their verdict: Campbell v. Linton, 27 T". < '. R. nfi3. A verdict cannot be taken subject to the opinion of the Court with- out the consent of both parties: Bletcher v. Burn, 24 V. C. R. 124. Where a jury were allowed to disperse without arriving diet. 186 VERDICT. but on r' ling in the jury box next morning were treated by Judge and counsel as the same jury, and being interrogated declared selves agreed upon one of several issues in the action, but not upon the others; and the Judge recorded their verdict on the one issue, and discharged them : Held, that all irregularities in regard to the dispersal over night had been waived, and the issue upon which the jury had agreed must upon any furl her prosecution of the litiga- tion be regarded as having been fully disposed of by the verdict: Coleman v. City of Toronto, 23 O. R. 345. The evidence at the trial of this action not being concluded before the close of the day pre- ceding Good Friday, the Judge, counsel consenting, and the jury desiring it, adjourned the Court to the following day, when he deli- vered his charge and received the verdict on which he entered judg- ment : Held, that it was competent for him to do so. The only day on which no judicial act can be done in this province is the Lord's Day or Sunday. Other statutory holidays are not dies non juridioi in this sense: Foster v. Toronto R. W. Co., 31 O. B. 1. Although the Judge does not direct a non-suit, yet where the plaintiff in deference to the Judge's opinion chooses to become non-suit, he is entitled to a new trial when it appears that the Judge took an erroneous view of the law. Domville v. Davies, L. R. & G. 159, followed : Wright v. Morning Herald Co., 2 K. u G. 398; 2 C. L. T. 106 (N.S.). Plain- tiff may become non-suit at any time before the delivery of the verdict: Grant v. Protection Ins. Co., 1 Thorn. (1st Ed.) 10; (2nd Ed.) 12 (N.S.) ; Copp v. Etter, James, 304 (N.S.). Held, that neither the trial Judge nor the Court could enter a non-suit against the plaintiff's desire : Rajotte v. Canadian Pacific Ry. Co., 5 M. L. R. 365 (Man.). The terms of an oral contract were in question. The plaintiff and defendant being the only witnesses on the point, each swore posi- tively to his version of the contract. Counsel for each of the parties at the trial proposed certain questions, asking that they be submitted to the jury, and objecting to the submission of the questions proposed by the other side. The Judge submitted both sets of questions, but directed the jury that (hey were at liberty either to answer the questions, and thus give a special verdict, or give a general verdict. The jury gave a general verdict for the plaintiff. On a motion by the defendant to set aside the verdict : — Held, that the question of there being a mistake or no consensus ad idem did not arise, and that the verdict depended on the jury's view of the credibility of the parties, and that therefore the verdict should not be disturbed: New- ton v. McLean. 2 Terr. L. K. 4. Semble, that when the vrdict is obtained upon the testimony of either plaintiff or defendant, the rule against granting a new trial on the weight of ss strict than it was before the parties N0N81 IT. l s 7 were admissible .-is witnesses: Canadian Hank of Commerce v. Mc- Millan, :n r. C. R. 596. If the party who has been served with process mnl appeared to defend the action, bears the same name as the party proved 10 be liable, the plaintiff is entitled to a verdict, &c, nnless the party served shews that be is nol the proper defendant : Thayer v. Vance, 2 Thorn. 268 (N.S.). Where the trial of a cause begins, and is entered into with or without a jury, as the ease may be, it must be finished in like man- ner unless by consent of parties: Denmark v. McConaghy, 29 I . <'. <". P. 5G3. Semble — A Judge has not power to attach conditions to a verdict the day after it was rendered and the jury discharged — Tuck, J.: Bank of Nova Scotia v. Fish, vol. 32, 434 (N.B.). The Court can, in its discretion, alter verdict to give il its legal effect: Cochran v. Chipman et at, 2 R. & U. 254 (X.S.). Held, that the trial Judge was within his right and duty in sending the jury back to re-consider their findings after pointing out their inconsistency: Peuchen v. Imperial Bank, 20 O. R. 325. Power of Judge <>n trial to direct verdict for plaintiff subject to aside .-Hid verdict to be entered for defendant upon points reserved. This can only be effected by the jury finding a special verdict when no consent is given: Hughes v. Sutherland, 1 Kerr. 574 (N.B.). A Judge may refuse to allow counsel to address the jury and urge them to give a verdict contrary to his direction : Doe dem Moffatt v. Thompson, } V. & V,. 516 (N.B.). There is nothing to prevent a Judge directing the jury to find on equitable issues. In this case the jury having found for the defendants, the Court on the evidence directed judgment to be entered for the plaintiff: Hac v. McDonald. 13 O. R. 3">2. \\ uere in the course of the trial of an action before a Judge and jury a motion for a nonsuit is made at the close of the plaintiff's ease, and .-main at the close of the whole evidence, and the Judge adopts the course of taking a verdict and of fully hearing and considering the motion: if necessary, after the verdict, the Judge may in a proper case nonsuit the plaintiff not- withstanding a verdict of the jury in his favour. Perkins v. Danger- field. T>1 L. T. N. S. 535. and Connecticut Mutual Life Ins. Co. of Hartford v. Uoore, 6 A.pp. Cas. 044, distinguished. Floer v. Michi- gan Central /,'. W. Co.. 27 A. R. 122. 127. specially referred to: Macdonald v. Mail Printing Co., 32 0. R. 163. Semlle, that the Judge may amend a verdict with the assent of the jury at any time before they are discharged: Jordon v. Marr, I 1". C. R. 53. Held, that where by mistake a verdict for a certain amount is entered on the record, and the foreman of the jury I. .'fore the jury separate or leave the box. points out the error, the Judge i^ right in erasing the entry and making in lieu thereof another, to wnich the jury have 188 WITHDRAWING Jl I Judgment of nonsuit assented as being their verdict: Moore v. Boyd, 15 l r . C. C. P. 513. Tn an action against the defendant as a surgeon for negligence, the jury found for the plaintiff, but added to their verdict the following: •' We arc of "pinion that the defendant made a mistake in not calling in skilful assistance, but not wilfully or through inattention:" Held, a mere expresion of opinion, and that it did not nullify or affect the verdict : Sheridan v. Pidgeon, Id O. Ft. 632. Chapter 45. section 29, of the Consolidated Statutes provides that if a jury cannot agree within two hours any five of the seven may return a verdict. of want of unanimous answers to all questions considered. Cheet- man v. Ilatheway, vol. 23. 415 (X.B.). C. R. 779 is as follows: — "< ~ ) 2- Damages in respect of any continuing cause of action shall ment of be assessed down to the time of the assessment ..* £68. ire B. C. Pule, 364. N. S'. Rules. Order XXXIV.. s. 46. R. S. Man., c. 40, s. 556. It. S. X. W. T.. c. 21, s. 244, R. S. X. P. DAMAG] 189 The right uf ihc trial Judge to refer the question of damages is indisputable: Ratte \. Booth, 16 P. R. 185. Se 21 S. C. R. 635. When it is shewn that dama from a breach of contract, the exact amount of which cannot b ined, it is in the discretion <>t the Court to d ably as a jury should do: Webster v. International Cement ('u., Q. It. 29 S. C. 470. The amount of damages awarded in the discretion of the trial Judge should not be interfered with on appeal unless clearly un- reasonable and unsupported by the evidence, or for error in law or fact, or partiality of the Judge: L> d, 6 Can. S. C. R. 4S2, and Gingras v. Desileta, ('ass. Dig. (2nd ed.) 212. followed: Cassette v. Dunn, IS S. C. R. 222. A plaintiff giving evidence on his own behalf cannot be allowed to stale that he has sustained a certain amount of damages by the act of the defendant : he should state the facts on which he relies to bis damages from which the jury are to determine the amount: Domville v. Keevan, Easter T., 1871, and Ryan v. James, 1 Pug. 122 (N.H.). Where a contract provided that upon non-completion by a fixed date a contractor was :" pay or "allow" S10 a day until completion: Held, that this authorized a deduction as liquidated damages of the amount so "allowed," from the contract price, even as against lien- 's claiming adversely to the contractor other than those having liens for wages where such wage liens were less in the aggregate than ten per cent, of the contract price: McBean v. Kinnear, 23 O. R. 313. Where a contract provides that an engine shall be built and placed in position by a certain date with a penally for each day'e delay, the time of commencement is of the essence of the contract, and if owing to the purchaser's fault the contractor is materially i ing the work, the parties are at large so far as nalty is concerned, the purchaser if the work be not completed by the time fixed, !, ' ' led only to actual •' !Inhn<- v. Chippy, 3 M. & W. 387, followed: Kerr Engine Co. v. French River Tug c».. 21 A. R. 160. Affirmed, 24 S. ('. R. 703. Under a covenanl contained in a lease granting a righl of way ever certain lands to a railway company for the purpose of a switch to a gravel pit. the lessees on default in removing tlm rracks and ties from the land within fifteen days from the termination of the C. R. 552. Compare R. C. Rule. 364. X. S. Rules, Order XXXTW. s. -It; R. S. Man., c. 40. s. 556. R. S. X. W. T„ c. 21. s. 244. 190 INTEREST. lease were to forfeit and pay to the lessor $5 a day as liquidated damages, and not as a penalty for each day after the said time that the lands and should remain in any way obstructed: Held, thai such damages were liquidated. Held, however, that under the circumstances sel out in the judgment, this was a proper case in which to grant relief under s. 52, s.-s. 3, of the Ontario Judicature Aet, 1895, by awarding actual damages estimated on a liberal scale : Toumsend v. Toronto, Hamilton and Buffalo If. M. Co., 28 O. R. 195. Where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it or pay damages for non- ■•>rmance, although in consequence of unforeseen causes the per- formance has become exceptionally burdensome or even impossible : Grant v. Armour, 25 O. R. 7. of proiil sustained by and the expenses which a purchaser of lands had been put to on a re-sale by him unknown to his vendor before such purchaser has entered into a binding contract for pur- chase, are not damages naturally flowing from the breach of the latter agreement, and cannot be recovered against him by his vendor. In such a case if recoverable at all the true measure of damages would be the increased value of the land at the time of the breach the purchase money: i^oney v. Oliver, 21 O. R. 89. INTEREST. The Ontario Judicature Act provides: — Interest 113. Interest shall be payable in all cases in which it is now pay- able by law, or in which it has been usual for a jury to allow it. ' le 114. (1) On the trial of any issue, or any assessment of damages, lowed on ll P on an >' debt or sum certain, payable by virtue of a written instru- debta cer- ment at a certain time, interest may be allowed to the plaintiff from overdue lnP ( ' n,f> wnen tnc debt or sum became payable. (2) If such debt or sum is payable otherwise than by virtue of a written instrument at a certain time, interest may be allowed from the time when a demand of payment is made in writing, informing the deli uteres) will be claimed from the date of the demand. When by H5- * n actions for con ersion of goods or for trespass de bonis way of atportatis, the jury may give interest in the nature of damages over in certain an< l above the value of the goods at the time of the conversion or actions. seizure, and in actions on policies of insurance may give interest over and abov the money recoverable thereon. Interest 116 - Unless it is otherwise ordered by the Court, a verdict or onjudg- judgment shall bear interest from the lime of the rendering of the yerdict, or of giving the judgment, as the case may be. notwithstand- ing that the entry of judgment shall have been suspended by any INTEEE 191 i proceedings in the action, whether in the Courl in which the action is pending or in appeal. By the Ontario Judicature Act, 1897, s. 113, "Interest shall be payable in all cases in which it is now payable by law or in which it has been usual for a jury to allow it." The effect of this enact- ment is that in all cases where, in the opinion of the Court, the •it of a just debt has been improperly withheld, and it seems to be fair and equitable that the party in default should make com- pensation by payment of interest, it is incumbent upon the Court to allow interest for such time and at such rate as the Court may think right: Toronto Railway v. 'loronto City, 75 L. J. P. C. 36; (1906) A. C. 117; 96 L. T. 646; 22 T. L. R. 32. R. S. C. c. 120, The Interest Act. is as follows: — Rate of Interest. 1. This Act may be cited as the Inti i Shorttitle 2. Except as otherwise provided by this or any other Act of the No restric . tion as to Parliament of Canada, any person may stipulate for, allow and exact rate except on any contract or agreement whatsoever, any rate of interest or dis- as pro- vided bv count which is agreed upon.* , uU ._ 3. Except as to liabilities existing immediately before the seventh Five per day of July, one thousand nine hundred, whenever any interest is j^"^,." 4 £' payable by the agreement of parties, or by law, and no rate is fixed „,, other by such agreement, or by law, the rate of interest shall be five per provision. centum per annum. 4. Except as to mortgages on real estate, whenever any interest When rate is, by the terms of any written or printed contract, whether under JJ^JJi?" seal or not, made payable at a rate or percentage per day, week, true- month, or at any ral ■ or percentage for any period les year. only^ no interest exceeding t 1 ' percentage of five per centum per recover . annum shall be chargeable, payable or recoverable on any part of . equn the principal money unles the contract contains an express statement rate per of the yearly rate or percentage of interest to which such other rate annum or percentage is equivalent. 5 If anv sum is paid on account of any interest not chargeable, Recovery , oi sum* payable or recoverable under the last preceding section, such sum p . ud may be recovered back or deducted from any principal or interest otherwise. payable under such contr i ox .Moneys Secured by Mortgage on Real Estate. 6. Whenever any principal money or interest secured by mort- No inter- gage of real estate is, by the same, made payable on the sinking JjJjjJJJ" fund plan, or on any plan under which the payments of principal ( . or t:iin money and interest are blended, or on any plan which involves an cases un- * See the Money Lenders' Act, R. S. C. c. 122. po*r, page 193. 192 INTEREST. less mort- allowance of interest on stipulated repayments, no interest whatever page states sna i] De chargeable, payable or recoverable on any part of the prin- dvanced unless the □ mtains a statement show- ing the amount of such principal money, and the rate of interest eon calculated yearly or half-yearly not in advance. No rate "• Whenever the rate of interest shown in such statement is less '' than the rate of ii hich would be chargeable by virtue of yond that an >' other provision, calculation or stipulation in the mortgage, no bo stated, greater rate of interest shall be chargeable, payable or recoverable on the principal money advanced than the rate shown in such state- ment. No fine, 8. No fine, or penalty, or rate of interest shall be stipulated for, etc.al- taken, reserved or exacted on any arrears of principal or interest payments secured by mortgage of real estate which has the effect of increasing in arrears, the charge on any such arrears beyond the rate of interest payable on principal money not in arrear ; provided, that nothing in this Proviso. S( . ( .ii on contained shall have the effect of prohibiting a contract for the payment of interest on arrears of interest or principal, at any rate not greater than the rate payable on principal money not in arrear. Over- 9- If a Q y sum is paid on account of any interest, fine or penalty charge n0 £ chargeable, payable, or recoverable, under the three sections covered ^ last preceding, such sum may be recovered back or deducted from back. any other interest, fine, or penalty, chargeable, payable, or recover- able on the principal. No further 10. Whenever any principal money or interest secured by mort- mterest f rea] estate is not un der the terms of the mortgage payable payable after five till a time more than five years after the date of the mortgage, then, years on jf at any t ; me a f ter tnP expiration of such five years, any person certain , , , conditions liable to pay or entitled to redeem the mortgage, tenders or pays to the person entitled to receive the money, the i Tor princi- pal money and interest to the time of payment as calculated under tne provisions of the four sections last preceding, c with three months further interest in lien of noli in st shall be chargeable, payable, or recoverable at any time thereafter, on the Proviso principal money, or interest due under the mortgage. Provided that contained in ibis section shall apply to any mortgage upon real estate given by a joint stock company or other corporatioi to any debenture issued by such company or corporation, for the payment of which security has been given by way of mortgage on to'mort? 11 - The Provisions of the five secti preceding shall apply gages since only to moneys so secured by mortgage executed after the first day 1880 1( of Ju,y one tnousan ^ " i ' ,lt hundred an(1 eighty. BE 193 BBITI8B COLUMBIA, S \skatcu i:\VA n . :. -, AND ] I EBRIT< B 12. The three sections next following apply to th>.- provinces ofApplica- ■i Columbia, Saskatchewan and Alberta, and to the North-west 11 ""' Territories and the Yukon Territory only. 13. Every judgment debt shall bear interest at the rate of five 1 ' on judg- per centum per annum until it is satisfied. „, ntat5 en turn 14. Unless it is otherwise order. :d by the J r km shall be calculated from the time of the rendering of the verdict ortimecal- oi the Riving of the judgment, as the case may be, notwithstanding ate "- that the entry of judgment upon the verdict or upon the giving of the judgment has been suspended by any proceedings either in the same Court or in appeal. 1f>. Any sum of money or any costs, charges or expenses made Judgment payable by or under any judgment, decree, rule or order of anyl| e V' P ' Court whatsoever in any civil proceeding shall for the purpose of this Act be deemed to be a judgment debt. The provisions of the Dominion Act respecting Money-lenders, kt. S. C. c. 122. must, be read with the Interest Act. supra. 1. This Act may be cited as the Money-lenders Act. Shorttitle. 2. "• Money-lender " in this Act includes any person who rarries Definition. on the business of money-lending, or advertises or announces him- "Money- self, or holds himself out in any way, as carrying on that business. en er ' and who makes a practice of lending money at a higher rate than ten per centum per annum, but does not compris d pawnbrokers as such. 3. This Act shall not apply to the Yukon Territory. N ?J app1 '" ' • - • cabl 4. This Act shall not apply to any loan or transaction in which Yukon, the whole interest or discount charged or collected in connection '• : ' JJ therewith does not exceed the sum of fifty cents. 5. Nothing in this Act shall operate to increase the rate of : cl " in ; interest that may be recovered in any ense where by law the rate is exist fixed at less than twelve per centum per annum. interest. 0. Notwithstanding the provisions of the Interest Act no money- ;,, lender shall stipulate for. allow or exact on any negotiable instru- ll " '- . . .. ti.ib'e in - mcnt. contract or agrees loan of money, the prin- cipal of which is under five hund rate of interest or discount greater than twelve per . per annum; and the said rate of interest shall be reduced to the rate of live per centum per perc ntum annum from the date of judgment in any suit, action, or other pro- P 8 * annum tg for the recovery of the amount due. K.E.— 13 194 INTEREST. Power* to 7. In auy suit, action, or other proceeding concerning a loan of ourt f or money by a money-lender, the principal of which was originally under to iransac- liv '' hundred dollars, wherein it is alleged thai the amount of interest t ion and pa j t i or claimed exceeds the rate of twelve per centum per annum, debtor. including the charges for discount, commissions, expenses, inquiries, . bonus, renewals, or any other charges, but not including taxable conveyancing charges, the Court may re-open the transaction and take an account between the parties and may notwithstanding any statement or settlement of account, or any contract purporting to close previous dealings and create a new obligation, re-open any ant already taken between the parties, and relieve the person under obligation to pay from payment of any sum in excess of the Lender to said rate of interest; and if any such excess has been paid or allowed in account by the debtor, may order the creditor to repay it, and may set aside, either wholly or in part, or revive or alter any security given in respect of the transaction. Exception 8. The bona fide holder before maturity of a negotiable instru- in case of ^ discounted by a preceding holder at a rate of interest exceeding negotiable instru- that authorized by this Act, may nevertheless recover the amount ment. thereof, but the party discharging such instrument may reclaim from the money-lender any amount paid thereon for interest or discount in excess of the amount allowed by this Act. Act to ap- U. The principal of any sum of money originally under five hun- p 7 c " dred dollars, due and payable before the thirteenth day of July one existing . contracts, thousand nine hundred and six. in virtue of any negotiable instru- ment given to a money-lender, or of any contract or agreement en- tered into with such money-lender in respect of money lent by him, shall not, from and after the said dale, bear a rate of interest greater than twelve per centum per annum; and from and after the said date do rate of interest greater than five per centum per annum And to shall be recovered upon any judgment rendered before the said date, judgments u P on anv sucn negotiable instrument, contract, or agreement, for the payment of money lent by a money-lender, and which allows a greater rate than five per centum per annum. As to in- ]0. In the case of any such negotiable instrument made before w^oon-** f,,p thirteenth day of July one thousand nine hundred and six, and tracts not maturing after the said date, and in the case of any such contract yfet, !' a " or agreement made before the said date and to be performed there- tured. after, the foregoing provisions of this Act shall apply only from the due of maturity or performance as the case may be. Penalty. H- Every money-lender is guilty of an indictable offence and liable to imprisonment for a term uot exceeding one year, or to a penalty not exceeding one thousand dollars, who lends money at a rate of interest greater than that authorized by this Act. 195 To entitle n creditor to interest under "> & 4 Wm. IV., c. 42, b. 28 (Imp.), the written instrument under which it is claimed must shew by its terms that there was a debt certain payable at a certain not sufficient that the same may be made certain by w 9 of calculation or Borne act to be performed in the future: Sinclair v. Preston, 31 S. (J. R. 408. Interesl is recoverable on goods sold on credit from the date at which the credit expired, where such is the usage of trade at the place where the goods are sold, although there may have been no previous dealings between the parties, no engagement to pay interest, and no notice under the statute that interest would be claimed: Bannr: man ei al. v. Fullerton, 1 Old. isOO (N.S.). The proper mode of computing interest in the absence ot payments made especially on account of principal, is to compute it on the amount due up to the time of each payment, making rests, deducting the payments and charging interest on the balance : liettea v. Farewell. 15 D. C. C. P. 4;~>0. Section 80 of the Bank Act not prevent a bank from entering into a contract to be paid a higher rate of interest than 7 per cent., and if, under such contract, interest is paid in excess of that rate, it cannot be recovered back: Williams v. Canadian Bank of Commerce, 13 B. C. R. 70. In an action to recover principal and interest on certain promissory notes, bearing interest at 12 per centum " as well after as before maturity," the defendant pleaded s. SO of the Bank Act: Held, reading ss. SO and 81, together, that such a contract between the hank and the customer is merely invalid in so far as it stipulates for more than 7 per cent.: Bank of Montreal v. Bartman, 12 B. C. K. 37~>. The word " punctu- ally " in a clause which provides that mortgage moneys shall be called in for three years '* if in the meantime every half-yearly pay- ment of interest shall be punctually paid" does not mean "within a reasonable time" but "on the days named": Leeds and JIanley Theatre of Varieties v. Broadbent, 67 L. J. Ch. i: , .. r , ; (1898) 1 Ch. 343; 77 I.. T. 665; 46 W. 11. 230. During a period of ten yea tradesman had delivered to a customer, since deceased, a yearly account, in which it was stated that interest would be charged on all sums due for more than three years. The customer never objected to the charere, and had from time to time made payments on account generally: — Held, that there was an implied agreement to pay In- terest: Anglesey {Marquis) In re; Wilmot v. Gardiner, 70 L. J. Oh. 810; <1901) 2 Ch. 548; 85 L. T. 179; 4!> W. R. 70S. Interest is not chargeable upon an account stated unless a fixed time for payment was agreed upon or a demand for payment made, or upon an account endorsed shewing that the parties have allowed interest upon balance-* outstanding, though a jury might and probably would allow such interest as damages. George v. Green (1907), 18 O. W. R. 247, 787. 13 O. L. R. ISO. 10 O. W. R. 202. 1-10 L. R. , r .7S. affirmed: 42 S. C. R. 210. The mode of computation provided by the contract INTEREST. beiu;; departed from, no certainty remained as to the amount payable or the time of payment, to ascertain which something more than an arithmetical computation was required; and therefore interest coald not be allowed under sec. 86, sub-sec. 1. of the Judicature Act, R. S. O. ch. 44. Merchant Shipping Co. v. Armitage, L. R. 9 Q. B. 99. and London, Chatham and Dover h. W. Co. v. South-Eastern R. W. Co., (1892) 1 Ch. 120, (1893) A. C. 429, followed. Spartali v. Constan- tinidi, 20 \V. R. 823. considered. Nor could interest be allowed under sec. 85 as in a case in which it had been usual for a jury to allow interest ; for no debt existed which was payable until it was ascertained, either in the manner provided by the agreement, or by the account taken in the action. Smart v. Niagara and Detroit R. W. Co.. 12 U. C. C. P. 404. and Michie v. Reynolds. 24 U. C. R. 303, distinguished: McCullough v. Clemow, 26 O. R. 467. A note dated 11th January, 1862, payable to and indorsed by one S. H., was for $3,000, with interest at the rate of two per cent, per month until paid. By a covenant for payment contained in a mortgage d> ; oi the same date given by the defendant to the plaintiff as a collateral security for the payment of this note, the defendant covenanted to pay "the said sum of $3,000 on the 11th July, 1862, with in thereon at the rate of twenty-four per cent, per annum until paid." A judgment was recovered upon the note, but not upon the covenant. The master allowed for interest in respect of this debt six per cent, only, from the date of the recovery of the judgment : — tield, that the proper construction of the terms of both the note and the covenant as to payment of interest was that interest at the rate of twenty-four per cent, should be paid up to the 11th July, 1862, and not that interest should be paid at that rate after such day if the principal ild then remain unpaid: St. John v. Rykert, 10 S. C. R. 278. A mortgage of real estate '.provided for payment of the principal money secured ' before a fixed date, " with interest therpon at the rate of ten per centum per annum, until such principal mpney and interest shall be fully paid and satisfied :" Held, affirming 17 A. R. 85. that the mortgage carried interest at the rate of ten per cent, to the time fixed for payment of the principal only, and after that date the mortgagees could recover no more than the statutory rate of six p^r cent, on the unpaid I. St. John v. Rykert, 10 S. <". R. 278, followed : People's Loan and Deposit Co. v. Grant. 18 '. R. 262. Interest post diem. Covenant to pay compound interest construed and such interest allowed post diem: Pringle v. Hutson. 1 O. W. N. 153; Saskatchewan Land and Homestead Co. v. Ijeadlay. i O. W. N. 228. Imperial Trusts Co. v. New York Security and Trust Co., 10 O. L. R. 289, lished. Interest made payabh note as pari of the debt, nol merely damages for detaining it: C v. Park. 3 U. C. R. 458; Howland v. Jennings, 11 U. C. C. P. 272: ery v. Boucher, 14 U. C. C. P. 45; Youn;/ v. Fluke. 15 FEBEST. 197 i . C C. P. 360; Griffin v. Judaon, 12 D. C. C. P. 430. Held, follow- ing Howland v. Jennings, 1 1 < '. P. 272, and Montgomery v. Boucher, 14 C. P. 45, thai the agreement between the parties Bxes the rate of interest recoverable as damages, however exorbitant that rate may he. The jury having previously allowed them ten per cent, per annum, although they found that defendant, had signed the note or instrument agreeing to pay i it. a month, a new trial was granted without costs. Heid, also, that the amount agreed upon was recoverable under the common count for interest and account stated : Young v. Fluke, l."> U. 0. C. P. 360. An agent refusing to give an account and pay over balance is chargeable with interest. C disallowed to an estate agent of preparing a receipt containing a schedule of lease and securities delivered up to the principal. Costs of suit against an agent for an account ordered to be paid by him where he had disregarded requests for an account, and had died an •per account in the suit: Simonds v. Coster. 3 N. B. Eq. 329, 1 E. L. R. 544. The Act 63 & 64 Vict. ch. 29 (D.), which provides for the statutory rate of interest being 5 instead of 6 per cent., amending the Interest Act, K. S. C. 1886, ch. 129, contains a proviso that the former Act is not to apply to "liabilities" existing at the time of its passing: Held, that the proper construction of the word "liabilities" is liabilities respecting the rate of interest, and that in a mortgage made in 1884, payable in 1900. bearing int. rest at 7 per cent., in which there was no provision for the payment of in- terest after maturity, the damages allowable as interest after maturity were not within the proviso: Plenderleith v. Parsons. 14 O. L. R. 010. A chattel mortgage provided for the payment of $125, the prin- cipal money in consecutive monthly instalments of $5 each, and for payment of $5 more with each instalment for interest. The yearly rate to which this was equivalent was not stated, but there was a clause in the mortgage waiving in explicit terms the necessity for stating the yearly rate, and waiving also the benefit of the Tn Act, 1897: — Held, that this being an Act passed on grounds of public policy for the benefit of borrowers, its application could not be waived, and that the mortgagee was entitled to interest only at the legal rate: Dunn v. Malone, <"> O. L. R. 484. A new agreement between the debtor and creditor extending the time for payment of the debt, and increasing the rate <,t interest, without the consent of the surety, is a material alteration of the original contract and releases the surety. And a provision in such agreement reserving the rights of the creditor against the surety, though effectual as regards the ex- tension of time, is idle as regards the stipulation for an increased rate of interest, and notwithstanding such reservation, the surety is discharged: Bristol and West of England J. and Co. v. Taylor, 24 O. It. 2K0. Mode of calculating interest on a mortgage t<> a saving and loan company, on paying it off before maturity: see Crone v. 198 INTEREST. Crone, 2<"> Chy. 459. Where a day is named for payment of a note, with interest al a rate specified, the claim f<»r interest after that day is a claim for damages for breach of the contract, not as upon an implied contract, and is in the discretion of the Court or jury: Dalbij v. Humphrey. 37 U. C. R. 514. Although the Court will not interfere with any bargain made by competent parties, since the repeal of the usury laws, for the payment of interest, still if any dispute as to such contract exists, it is the duty of the Court to see that the parties to any agreement for payment of exorbitant interest clearly understood th ! bargain before effect will be given to it. Where, therefore, on the loan of money it was agreed to pay at the rate of two per cent, a month in advance, and the lender in summing up the account contended that the agreement being that it should be paid in advance was the same as two and one-half per cent, a month, and insisted upon his right to charge that sum, the Court directed the Master to allow at the rate of two per cent., the effect of the interest being payable in advance not having been explained to the borrower: Teeter v. St. John, 10 Chy. 85. By sections 57 and 88 of the Bills of Exchange Act. the interest accruing due after the date of maturity of a promissory note is recoverable by statute as liquidated damages, and it is to be calculated at the rate of six per cent, per annum, in the absence of a special contract for a different rate: see McYicar v. McLaughlin, 16 P. R. 450. Where the estate of a bankrupt is sufficient to pay in full, and a surplus remains, interest must be allowed on all debts proved under the commission where the debt by express contract or by statute bears interest, or where a contract to pay it is implied, but on no other debts will interest be allowed : Re Langstaff, 2 Chy. 105. The general law having provided that on any contract or agreement any person may stipulate for any rate of interest or discount which may be agreed on, an Act of the Quebec Legislature authorizing a company to pay such rate of interest for advances as might be agreed, and to make arrangements allowing such interest either by selling obligations bearing a lower rate of interest below par, or by issuing them at par bearing the agreed rate of interest, was held to be within the com- petence of the Provincial Legislature. A Provincial Legislature may give local corporations authority to borrow money at any rate of interest already legalized as to other persons having the right to borrow: Royal Canadian Insurance Company v. Montreal Ware- housing Co., 3 Legal News 155, 2 Tan. 361. Remarks upon the law relatinjr to pawnbrokers. — A pawnbroker under C. S. 0. c. 01 may legally charge any rate of interest that may be agreed upon between him and the pledger: Regina v. A damn. 8 P. R. 402. No interest is allowable with respect to arrears of an annuity: Goldsmith v. Gold- smith, 17 Chy. 213; see Crone v. Crone, 11 Chy. 425; Snarr v. Bade- nach, 10 O. R. 131. To save interest by an appropriation of the [NTEBE8T -CO \U'J purchase money, the money should be separated from the purchaser's general bank account, and notice of the appropriation must be given to the vendor: Great Western I'. W. Co. v. Jones, 13 Thy. 355. The method usually adopted in making out an account between dehtor and creditor upon a loan of money, viz., thai of eharging first the interest upon the whole debt for the whole period, as if no payment had been made, then allowing interest upon each payment from the time it was made, and deducting all the payments and interest from the whole debt and interest— is not the correct way of arriving at the balance. It is so much in favour of the debtor, that where there has been a long arrear of interest, and payment made on account of the debt, and covering the interest alone, the debtor in a few years, without making any payment in the meantime, will make his credi- tor bis debtor to a very large amount ; McGregor v. Gaulin, ■' (J. < '. It. 37S. T'nder ordinary circumstances a mortgagee can claim in- terest only from the time the money is advanced: Edmonds v. Hamil- ton Provident and Loan Society, 18 A. R. 347. Right of mortgagee to distrain for arrears of interesl limited, and right to redeem given: Ont. Stats. 1910, ch. 51, sees. 13-17 inclusive. - COSTS. The Ontario Judicature Act provides: — 119. Subject to rules of Court, and to the express provisions of Costs in any statute, the costs of and incident to all proceedings in the discretion Supreme Court of Judicature, shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom and to what extent such costs are to be paid. In a case tried without a jury the Judge cannot deprive the ful party of his costs unless there ar ials before him justifying such an exercise of his discretion. The fact that the successful party elects t<> stand upon his legal rights, and refuses to leave the subject-matter of the litigation to the arbitration of the Judge, does not justify the Judge in making party of his costs : Civil Service Co-operative Society v. General Steam Xavifiation ('0., 72 L. J. K. R. 033: M003) 2 K. R 756; 89 I 429: 52 W. R. 181 ; Asp. M. C. 477: 20 T. T.. R. 10. STAY OF EXECUTION. The rule as to stay of execution is Con. Rule. 1807. 827. (1) Unless otherwise ordered by the Court ;i ~ f Judge thereof, the execution of the judgment or order annealed from execution. shall in the case of a motion or an appeal to a Divisional Court, upon the motion or appeal being set down for argument, and in the 200 STAY OF EXECUTION. Where partial perform- ance i> required execution d by 1 1 el i very into Court. Or by ex- ecuting in- strument . Or by the giving of special se- curity not to connr.it Where in- junction or mandamus ordered case of an appeal to the Court of Appeal upon the security In Rule S26 mentioned being allowed, be stayed pending the motion or appeal, except in the following cases : (a) If the judgment appealed from directs the assignment or delivery of documents or personal property, execution shall not be stayed until the things directed to be assigned or delivered have been brought into the Court appealed from, or placed in the custody of such otlicer or receiver as that Court or a Judge thereof appoints, or until security has been given to the satisfaction of that Court or Judge, and in such sum as may be directed, that the appellant will obey the order of the court appealed to ; (6) If the judgment appealed from directs the execution of a conveyance or any other instrument, execution shall not be stayed until the instrument has been executed and deposited with the proper officer of the Court appealed from to abide the judgment of the Court appealed to ; (c) If the judgment appealed from directs the sale or delivery of possession of real property or chattels real, execution shall not be stayed until security has been given to the satisfaction of the Court appealed from, and in such sum as that Court or a Judge thereof directs; that during the possession of the property by the appellant, he will not commit or suffer to b( committed any waste on the prop- erty, and that if the judgment be affirmed he will pay the value of the use and occupation of the property from the time of the appeal, (d) If the judgment appealed from awards a mandamus or an injunction, execution shall not be stayed except upon application to the Court appealed to, or a .fudge thereof, and upon such terms as may seem just. (2) Upon special application the Court appealed to or a Judge thereof may order that execution shall not be stayed in whole or in part except upon such terms as may seem just, including the giving of security for any sum directed by the judgment or order appealed from, to be paid either as a debt or for damages or costs or for any less sum, or may order that execution be stayed although security has not been given under Hule 826, and although the preceding provisions of this Rule have not been complied with upon such terms as may seem just. PART II. EVIDENCE IN PARTICULAR CASKS. Title I. ACTIONS ON SIMPLE CONTRA* ACTION ON SALE <>! REAL PROPERTY. This action may be brought either by vendor again* t vendee, or by vendee against vendor. It includes claims for specific performance of contracts of sale, and is often met by a counterclaim for rescission of the alleged con- tract. It frequently ends in a reference as to damage sus- tained by aggrieved party. See post Part III. as to defences available in actions generally. In this Part a few special observations only are made with regard to defences peculiarly applicable to the action under consideration.* VENDOR AGAINST VENDEE. In an action on sale of real property by vendor against vendee on purchaser's default, the plaintiff must prove : — 1. The contract. 2. The performance by himself of all conditions precedent. 3. The default. As to proof of the contract, the provisions of the Statute of Frauds (29 Car. II., c. 2, s. 4), must be borne in mind. The Statute of Frauds, 29 Car. 2, c. 3, s. 4, provides as follows : No action shall be brought to charge any person upon any con- tract or sale of lands, tenements or hereditaments or any interest in or concerning them, unless the agreement upon which such action No action shall be brought or some memorandum or note thereof shall be in agreement writing and sinned by the party to be charged therewith or some per- or contract son thereunto by him lawfully authorized. land* A defence under this statute must now I spe 'allv : ""''"'" Ureenizen v. Hums. 13 A. R. 481. When it is so pleaded it will be etc., be in necessary to prove a contract in writing: Sep Cleaver v. North of wn ' Scotland M. Co., 27 Chy. 508 ♦See for this action Frauds, Stat lit .• of, post, page 531. 202 ACTIOX OX SALE OF REAL PROPERTY. The note or memorandum required by the statute must be in writing, and signed by the party to be charged therewith, or some other person by him lawfully authorized. Subject, terms, and names of the parties must appear : Williams v. Lake, 2 E. & E. 349. An acceptance in writing by the owner of land of a written offer there- for addressed to him, but unsigned by any purchaser, and with- out any purchaser being named or in any way described tnerein, is not a sufficient memorandum to satisfy the statute, and does not become binding upon him when a purchaser is subsequently found who signs the offer: Mcintosh v. Moynihan, 18 A. R. 237. Sheriff as assignee for creditors signed a memorandum of sale : held, not an agent for both parties: Mc/ntyre v. Faubert, 21! O. It. 427. Selling under an execution he is agent for both: Flintoft v. Elmore, 18 U. C. C. P. 274. As to auctioneer, is agent : sec Reg. v. Rawson, 22 O. It. at p. 471. A memorandum is "signed" within the Statute of Frauds, if only the surname of the purchaser : s written on it by the auctioneer. Merely formal terms of sale will be implied by law. An auctioneer, authorized to sell, has no authority to rescind the sale: Farquhar v. Billman, 40 N. S. It. 289. Certain lands were sold to a purchaser by private treaty, through an auctioneer authorized to act as agent for the vendor, subject to conditions originally prepared for a sale by public auction, which had proved abortive. The purchaser signed the memorandum in writing attached thereto, acknowledging that he had purchased from the vendor the premises mentioned in the annexed particulars for £800, subject to the conditions of sale thereunder annexed, and that he had paid the deposit and that he agreed to pay the balance on or before the date mentioned in the conditions of sale. The mem- orandum was also signed by the auctioneer as " witness." The vendor refused to complete : Held, that the vendor was bound by the signa- ture of the auctioneers, although merely purporting to sign as "wit- ness," he having been duly authorized to sell by the vendor: Wallace v. Roe (1903), 1 Ir. R. 32. An agreement to enter into an agreement for the sale of land held no binding contract: Anglo-Canadian Land Co. v. Gordon (Man.), 10 W. L. It. 517. This seems to be a case in which I should follow the prin- ciples applied in TJxford v. Provand, L. R. 2 P. C. 135. The parties to the agreement and the consideration are certain. The property in the minds of the parties and the subject matter of the contract were capable of being made certain: Davis v. Xhaic, 1 O. W. N. 358. Difference between option and substantive agreement discussed: Jones v. Norris, 12 W. L. It. 651. The note or memorandum of an agreement for the sale of real ontain the names of the contracting parties, or such a \ ENDOR V. VEND 203 description of them thai there cannot be a fair dispute at to their identity. The term "vendor is not in itself a sufficient description of one of ili" contracting parties: Potter v. Duffield, L. It. is Eq. 4, Williams v. Jordon, (5 Ch. D. 517; White •. . Tomalin, 19 O. R. 513. I:: the present case tin' purchaser was neither named aor described in the agreement. As the agreement did not comply with the muiire- ments of the Statute <>f Frauds, the plaintiff was not entitled t<> re cover: Mober v. Penshalski, 15 Man. L. R. 236. The writing of the purchaser's name near the beginning of a written agreement of sale, prepared by a solicitor, under the instruc- tions of the purchaser's duly authorized agent, may be a sufficient signature by the purchaser's agent, within the meaning of the sta- tute, although the agreement is signed by the vendor only: Mcllwridt V. Mills, 16 -Man. I.. R. 276. An offer to purchase land written on paper containing the printed name and address of the vendor, but not signed by hi; not a sufficient memorandum of the contract to satisfy the Statute of Frauds, unless it he written at his dictation: Schneider v. Xorris. 2 M. & S. L'SC. ami Evans v. Hoare (1892). 1 Q. P.. 593, distin- guished: Iluckhxhy v. Hook, 82 1.. T. 117. When two parties enter into a formal written agreement for the sale and purchase of land containing all the particulars necessary to make it binding under the Statute of Frauds, and all the terms i hey intended to embody in it, and there is not suggestion of accident, fraud or mistake in the preparation or execution of ii. specific performance of it may be decreed, notwithstanding that the parties at the verbally agreed upon a number of collateral agreements or subsidiary condi- tions for conveniently carrying out the written agreement, and not- withstanding the Statute of Frauds: Anderson v. Douglas, IS Man. L. R. 254: 8 W. !.. R. 520; !> W. L. R. 378. Documents left in escrow could not be used as evidence to a verbal agreement sullicient to tak?> it out of the statute: Vandervoort v. //«//. is Man. I.. R. Instructions given by an owner of real estate to an agent to sell the property for him. and an agreement to pay the commission on the purchase ; .ice accepted, are an authority to the agen make a binding contract, including nn authority to sign a contract for sale: Chadburn v. Moore, 01 L. J. Ch. 674, and llnmrr v. sharp. I.. R. 19 Eq. 108, distinguished. Ttosenbwum v. Bel- son, 69 L. J. Ch. 569; (1900), 2 Ch. 267; 82 I. T. 6 V. R. 522. In an action by a vendor against a purchaser on an contract for the purchase of land, where rhe plaintiff is nor merely seekim; a declaration that he has effectively • -illy binding express provision for rescission nr a legally binding press provision or the implied provision for resale, he may claim, (1) damages, (2) specific performance. (3) rescission, (4) sale to 204 A.CTION <>\ SALE OF HEAL PROPERTY. realize vendor's lien. In order to succeed the vendor must shew a good title. Cases on forfeiture, cancellation and vendor's remedies discussed, and Great West Lumber Co. v. Wilkins, 7 W. L. R. 166, I Alta. I.. R. 155, applied: Merriam v. Paisch, 8 W. L. R. 240; 1 Alta. L. R. 262. The contract is an executed one, and has been adopted by the plaintiff. In the absence of actual fraud the Court will not set aside the trans-action: Bell v. Macklem. 15 S. C. R. 581; Brownlie v. Campbell, 5 App. Cas. 925; Petrie v. Quelph Lumber Co., II S. C. R. 450. Independently of any express provision a right of resale exists in favour of the vendor under an agreement of sale upon default by purchaser: Noble v. Edwards, 5 Ch. D. 378. But the vendor must give a perfectly distinct notice of his in- tention to resell and allow the purchaser a reasonable time within which to remedy his default: Moodie v. Young, 8 u. L. R. 310; 1 Alta. L. R. 337. A full statement of the proper procedure in cases of default where purchase money is payable by instalments and default is made will be found in Canadian Pacific R W. Co. v. Meadows, 8 W. L. R. S06; 1 Alia. L. R. 844. Powers of rescission must be strictly followed and their exer- cise subjected to rigorous scrutiny in a Court of Equity, just as in the case of notices under powers of sale in mortgages : In re Dagen- ham and Cornwall v. Benson, ut sup., followed. The plaintiff's remedy would be to commence an action in the nature of specific performance to have the contract cancelled by decree of the Court upon default after a time to be fixed by the Court: Hudson's Day Co. v. Maedonald, 4 Man. ><. H. 327. and Lysaght v. Iklwards. 2 Ch. D. 509, followed: Canadian Fairbanks Co. v. Johnston, 18 Man. L. K. 509; 10 W. L. R. 571. Forfeiture of substantial payments on account of purchase money paid under agreement for purchase relieved against as being a pen- alty against which Court would relieve: Hall v. Turnbull, 10 W. L. K. 536; Banton v. March, 12 W. L. B. 002. If the purchaser has not merely delayed but abandoned or re- pudiated the contract all his rights in it are pone, ana' the vendor may deal with the property and payment- on account, as if the eon- tract had never been made: Cornwall v. Henson (1909). 2 Ch. 298, :mrl Stringer v. Olirer. W. I.. R. 519. discussed: dreat West Lum- ber Co. v. Wilkins, 7 W. L. R. 100: 1 Alta. L. R. 155. That where '. of which he is entitled to demand specific performence has been guilty of undue delay in performing his part of such contract, tin- Courl will treat the contrad as abandom refuse specific performance : Kattell v. Hudson's Hay Co., 8 W. L. R. 700; 1 Sask. L. R. 169. A definite oral bargain (good VENDOB V. \ ENDEE. 20"> the Statute of Frauds) for the sale by the plaintiff to the defend- ant of an ascertainable and definite parcel of land, is a sufB consideration for a cheque drawn by the defendant upon the bank in favour of the plaintiff for a pan of the purchase money. K\ v. llar V Thy. 116. As to terms: see Devine v. (,'riffin. 4 Chy. I It is not necessary that the names or terms should appear in any single paper. The contract may be collected from several con- nected papers: Rochleau v. Bidwell, Dra. 34."; Kennedy v. Oldham, R. 133. The connection ought to appear on the papers, and not by intrinsic oral evidence only: McClung v. McCracken, 3 O. R. Where a rv>urt has to find a contract in a correspondence, and not in one particular not. mdum formally signed, the v of what has passed between the parties mu9t be taken into consi.' tion : Huasey v. Home-Payne, 4 App. Cas. 311, followed. Where an agreement by letters is made " subject to " the ap- proval of i-act. there is no concluded contract until such formal been approved. Secus, where the b i tion is not conditional, but merely supplemental: Winn v. Bull, 47 206 ACTION OK SALE OF REAL PROPERTY. L. .7. Ch. 139; 7 Ch. D. 29, followed, Bromet v. Neville, 53 S. J. 321. Contract by corres] rale of const ruction that grant to be read most strongly against grantor. Quaere, if maxim is still law: Taylor v. Corporation of St. Helen's, 6 Ch. D. 270. Not applicable to correspondence: Watson \. Jamieson, 12 W. L. It. 66S. Where an agreement contains the names of two contracting parties, the subject matter of the contract and the promise, it is binding on the party signing it, although not signed by the other party: Bank of British North America v. Simpson, 24 U. C. C. P. 354. In order to convert a proposal into a promise the acceptance must be absolute and unqualified, and should be prompt and imme- diately given : Fulton Bros. v. Upper Canada Furniture Co., 9 A. R. 211. When a proposal is made in writing by one party and accepted by the other, either verbally or by acting upon it, the contract is a written one: Ellis v. Abell, 10 A. It. 226. An agreement good under the Statute of Frauds can, it seems, be wholly rescinded, but cannot be varied by a subsequent oral agree- ment : Goss v. Lord Nugent, 5 B. & A. 58. The person authorized by the party to sign need not be authorized in writing. As to tele- grams: see (roduin v. Francis, L. J. 5 C. P. 29.": Henkel v. Papr, L. J. 6 Exeh. 7 : McFarren v. Johnson, 6 O. R. 161 ; McCarthy v. Cooper, 12 A. R. 284. Where there has been a part performance of a contract falling within the provisions of the Statute of Frauds (s. 4), although there is no written note or memorandum of the agreement, as required by the section, specific performance will be ordered : Alderson v. Maddi- son. 8 App. Cas. 420: Campbell v. McKerricher, 6 O. It. 85; Coates v. Coates, 14 O. It. 195. The Courts will enforce the contract where the absence of a written memorandum is caused by fraud. In an action to enforce specific performance of an alleged con- tract for the sale of land the only written memorandum of the con- tract was a receipt for $100 " in part payment of lot 16," etc., de- scribing it, mentioning also the balance of the price and the pur- chaser's name, but not disclosing the name of the vendor, and signed " P. W. Black, agent : " Held, that this was not sufficient to satisfy the Statute of Frauds, parol evidence to supply the name of the vendor not being admissible : Semble, also, on the evidence, that the agent had no authority to bind the vendor by executing a con- tract, and that, on account of the inadequacy of the price, the Court would be slow to enforce specific performance: Bradley v. Elliott. 11 O. L. It. 398, 7 O. W. R. 137. A written aexcement to sell "lots 16, 17, block 196, district lots ..." must be taken to refer to land belonging to the vendor, and is a sufficient description witnin the Statute of Frauds to make extrinsic evidence admissible vendod v. \ i 207 :or the purpose of identifying the land and shewing the subject mat- ter of the negotiations between th.- parties: Plant v. Bourne (181 2 Ch. 281. followed: Lewis and Sills v. Hughes, 13 i«. C. R. 228. The description was "No. '_"_' Ann Street." The correct nuit:r was 24. There was no number '2- ; and the defendant owned do other property in Ann Street: Held, sufficient: see (Jo wen v. True- fitt (1899), 2 Ch. 309, 311; Foster v. Anderson, 16 O. L. It. 565 The plaintiff must next prove performance of conditions pre- cedent. Where n party offers an estate for sale without qualification it amounts to an assertion thai he is seized of an absolute estate in fee simple, and he undertakes, in th" absence of express stipulation, to convey that estate. YVnere. therefore, there is a mere agreement by A. to sell and by B. to purchase, with no conditions, it is P.. s right to have a good title made out for him by A., and it is his ri','ht to have that title sifted for him to the bottom. In cases of that kind the vendor must produce an abstract of title, and the vendee is en- titled to make objections to or requisitions thereon, and until a full and perfect abstract is finished the vendee may object or require fur- ther information. If, on the abstract, it is absolutely out of the power of the vendor to make a good title the purchaser may at once rescind. Parties may by their conditions waive their right: see \ason V. Armstrong, 21 A. K. at paire 191. The implied obligation to pay off the encumbrance which in the case of a conveyance of land to a person sui juris is imposed by a Court of Equity, is not en- forceable against a married woman. It cannot be said to be a con- tract or promise in respect of separate property: McAlichael v. Wilkic, 10 A. It. 464. Frontage rates are encumbrances which vendors must remove: Re u-raydon v. Hammill, 20 O. R. 1W ; Cum- berland v. Kearns, 17 A. R. 281. Taxes due upon land at the time of sale are an incumbrance within the covenant for quiet enjoyment : but the plaintiff can recover only the arrears due at the date of the conveyance: Haynes v. smith, H l". C. R. 57. If the vendor's title be put in issue, he must prove it. This is generally done on reference. The Court refers the question of title to the Master to repon upon, reserving costs until he shall ' made his report. See Vendors and Purchasers' Act ( K. S. O.. 1897, c. 112), (page ante), and the Act respecting the law and transfer of property (R. S. O., 1897. c. 100), and also the provisions of the Registry Act as to the effect of registering. See post, under Title uefence of Purchase witnout Notice of Registry Title. These en- actments have rendered evidence of title more simple. To entitle a purchaser to disavow a contract on the ground that the title to the land is not in the vendor he must repudiate promptly on discovering that fact, and if he subsequently thereto treat the contract as bind- ing, he will be held to his election and be remitted to the rights of an ordinary purchaser, including that of terminating unreasonable 208 ACTION ON SALE OF REAL PROPERTY. delay by a sufficient notice : Robinson v. Harris, 21 O. R. 43. Delays caused by the state of the title do not, unless there has been in addi- tion some gross negligence or misconduct, amount to wilful default : Stevenson V. Davis, 23 S. D. R. 632. An averment of readiness to convey is negatived by proof of a defective title, for it negatives ability to convey : De Medina v. Gor- man, 9 M. & W. 820. Accidental deterioration after the date of the contract is a loss which must fall on the vendee : Robertson v. ISkelton, 12 Beav. 260. See also Stevenson v. Bain, 8 P. R. 258. The Court has cognizance of all the rights of all the parties arising out of an agreement; and if either is entitled to damages the Court ought to ascertain them : Casey v. Hanlon, 22 Chy. 445. See also L,edyard V. McLean, 10 Chy. 139; Gough v. Bench, 6 O. R. 699. As to costs, the ordinary rule in a vendor's suit is that the costs are given against him up to the time when he has first shewn a good title ; but where the question as to title is not the chief matter in dispute the costs will follow the result : F.aird v. Paton, 7 O. R. 137. The plaintiff is entitled to his costs if he offered a possessory title before action, even if he did not prove it until after: Dame v. Slater, 2j O. R. 375. Costs of reasonable defence by purchaser of action against him by sub-vendee: Agius v. G. W. Colliery Co. (1891), 1 Q. B. 413. If a defendant is able to make a good title before the day fixed for the completion of the contract, the contract can be enforced : In re Bryant and Barringham's Contract, 44 Ch. D. 223; Maytery v. Williams, 12 W. JL. R. 692. An equitable owner with a right to get in the absolute title Is not entitled to rescind contract on that" ground : Shaw v. Foster, L. R. 5 H. L. 350; Egmond v. Smith, 6 Ch. I). 47G. In Ontario the Court may allow money to be paid into Court to secure the purchaser against an outstanding incumbrance, as in Cameron v. Carter, 9 O. R. 426, that course being permissible under R. S. O. c. 119, s. 15. In Manitoba no similar statutory provision: jtartt v. Wishard-Langan Co., 18 Man. L. R. 376, 9 W. L. R. 519. When a day is fixed for completion, unless the vendor make out a good title by that day the purchaser wai at law entitled to rescind the contract; but not so in equity, which now prevails: Stevenson v. Davis, 23 S. C. R. 629, 631. That when a contract for sale of land the parties expressly agree that time is to be of the essence of the contract, and that upon default the vendor may cancel the contract by notice to the pur- chaser and in pursuance of such power the vendor cancels the con- tract, the Court has no jurisdiction to relieve against such cancella- tion, which is purely a matter of contract between the parties: Held, also, that failure to fill in a blank in a printed agreement has not in., n the effect of rendering the clause in which eh blank is found of no effect: II, 2°>9. IT' Denial of contract. The Consolidated Rules require fendant specifically to allege in his defence that he relies on 'he Statute of Frauds, or on fraud or misdescription. K.E.— 14 210 ACTION' ON SALE OF REAL PROPERTY. When two persons have agreed that a contract which has been the subject of an interview between them shall be reduced to writing-, there is a presumption that they have made the reducing to writing a sub- stantial condition of the formation of the contract, and the burden of :" is on the one who asserts the contrary: Dorion v. Bedard, Q. K. 27 S. C. 193. Although a part of a contract for the sale and purchase of land may not be binding under the Statute of Frauds, another part of it, if in the alternative and distinct from the agreement to purchase — e.g., that either party will pay to the other a named sura if he does not fulfil his agreement to sell or purchase — may, on his refusal to do so, be enforced against the party refusing : The Canadian Bank of Commerce v. Perram, 31 O. R. 116, followed : Mercier v. Camp- bell, 14 O. L. It. 631). The position of a defendant resisting a claim is more favourably considered than that of a plaintiff endeavouring to enforce an agree- ment, the terms of which may not have been defined so as to clearly satisfy the requirements of the statute : Lawrence v. Errington, 21 Chy. 261. Where more than one person is employed by the vendor to bid at a' sale by auction, this will be deemed a fraud. See R. S. O. 1897, c. 100. Other special defences are: Imperfection of title, defects in subject-matter of contract. A purchaser of land may, on discovering that the vendor has no title, repudiate on that: ground; but attempted repudiation on another ground docs not keep this right alive, if the vendor at the proper time can make a good title: Paisley v. Wills, 18 A. R. 210. A party who enters into a contract for the purchase of land knowing that the person with whom he is contracting does not own the land in question, and that the contract does not bind the estate, but only the person of the contracting party, cannot set up that the vendor is not the owner so as to repudiate the contract on that ground: St Denis v. Higgins, 24 O. R. 230. Where the misdescription, although not pro- ceeding from fraud, is in a material and substantial point so far affecting the subject-matter of the contract that it may reasonably be supposed that, but for such misdescription, the purchaser might never have entered into the contract at all, in such case the contract is avoided ali nd the purchaser is not bound to resort to the clause of compensation: Moorhouse v. IJeicish, 22 A. R. 172. Id an agreement for exchange of land it was stated that the property was subject to a mortgage encumbrance of $750, bearing interest at the rate of seven per cent, per annum. The property was one of four houses and lots mortgaged for iv^OOo, with interest at ten per cent., payable half yearly, to be reduced if punctually paid to seven per cent., with an agreement to release each house on payment of Held, not an accurate statement of the mortgage encumbrance : Re Booth v. McLean, 21 O. R. 4H2. DEFENCE. 211 Misrepresentation without fraud ur deceit no ground for dam- ages: Cross v. Douglas, 12 W. L. E. 210: Redgrave v. 7/un/, 20 • h. D. 1 at p. 12. Since the Judicature Act there seems to be no substantial dis- tinction between a vendor's action to recover his purchase money, and a vendor's action for specific performance where the purchase money sought to be recovered is payable, as in McDonald v. Murray i 11 A. R. 101), contemporaneously with the delivery of the con- veyance. But where the action is brought for the recovery of instal- ments payable by the terms of the contract before the time for com- pletion has arrived, the vendor appears entitled to judgment for them unless some equitable ground of relief is shewn, as, for instance, the • xistence of incumbrances or some defect in the title. Where the inly objection is the existence of incumbrances to an amount not •xceeding the purchase money, the overdue instalments should be paid into Court, and the same rule should in general govern where there are defects in the title and the defendant Is in possession, unless he will go out of possession : Armstrong v. Auger, 21 O. R. 103. When the price is payable by instalments the purchaser of land has a right to have a reference as to title, and to nave title mani- fested before he makes a single payment: Cameron v. Carter, 9 O. II. 426. Held, that the covenant for payment of the instalments, and the covenant against incumbrances were independent ; and the vendor was entitled to judgment for the instalments ; but the pur- chaser was entitled to shew the existence of incumbrances as an equitable ground of relief, and the time for completion of the con- tract not having arrived, to pay into Court so much of his purchase money as might be necessary to protect hi ' the incumbrances: McDonald v. Murray, 11 ... R. 101, and Tisdale v. Dallas, 11 C. P. 238, distinguish , rong v. Auger, 21 O. R. OS. A stipulation in a contract for the sale of land, the price whereof is payable by instalments, that upon default by the purchaser in making any one of the payments within sixty days after it Tails due, the contract of ic void and the vendor shall have the right to retain fill that he has already received as liquidated damages, is a binding contract for the benefit of the vendor, which the latter only can in- voke upon default. The purchaser cannot take advantage or Tus own default in the fulfilment of a part of his engagement in order to free himself from the rest: Peloquin v. Cohen, Q. R. 28 S. C. 19::. contract for the sale of land provided for the payment of the pur- chase money in quarterly instalments; when half was paid the vendor was to convey and give the usual statutory covenants; the pur- chaser was to pay taxes from the date of the contract. In an action to recover instalments under the contract: Held, that local improve- ment rates imposed by municipal by-laws, after the work having been .lone before the date of the contract, were incumbrances to be dis- 212 ACTION ON SALE OF REAL PROPERTY. charged by the vendor ; but rates imposed and work done after the contract were not so. Re Uraydon and Hammil, 20 O. R. 199, fol- lowed. Ecclesiastiques de St. Sulpicc de Montreal v. City of Mont- real, 16 S. C. R. 400. distinguished. A vendor of land— under an agreement providing for payment of the purchase money in annual instalments with interest, and that the purchaser so soon as he had paid three-fifths should be entitled to a conveyance, upon executing a mortgage back for the balance — is entitled to sue the purchaser for the payments falling due prior to three-fifths being paid without proving that he has tendered a conveyance : H. II. Vivian & Co., Ltd. v. Clergue, 41 S. C. R. 607. See also Labelle v. O'Connor, 15 O. L. R. f>19. Barclay v. Messenger, (1874) 22 W. R. 522, 43 L. J. Ch. 449, followed. In re Dagenham (Thames) Dock Co. (1873) L. R. 8 Ch. 1022, and Cornwall v. Henson (1899) 2 Ch. 710, (1900) 2 Ch. 298, distinguished. Where a vendor files his bill for specific performance against a purchaser on a contract partly performed, the evidence of the contract must be clear and unmistakeable, and the acts done must be such as cannot be referred to any other than the contract as alleged or done with any other intention than in part performance of such contract : Sexton v. Shell, 6 L. J. 94. Possession is part performance of a contract for the sale and purchase of land both by and against a stranger and the owner. On negotiations for the purchase of land the agent of the plaintiff, vendor, told the defendant purchaser that the lot was his. The de- fendant went on and set in the ground a number of stakes to mark out the foundal ion of a proposed house, and then changed his mind and refused to carry out the purchase: — Held, that what he had done constituted such a taking of possession as to constitute part performance and that the plaintiff was entitled to the usual judgment for specific performance: Boducll v. McNivcn, 5 O. L. R. 332. The exen-ise of the jurisdiction to order specific performance of a contract is a matter of judicial discretion to be governed as far as possible by fixed rules and principles, but more elastic than in the administration of other judicial remedies. In the exercise of the remedy much regard is shown to the conduct of the persons seeking relief: Harris v. Rotinson, 21 S. C. R. 390. Where a contract is made by one partner for the sale of part- nership lands, to which the other partner refuses to consent, the purchaser cannot insist upon taking the share in lands of the con- tracting partner with a proportionate abatement in the price: Crain v. Rapple, 2 A. R. 291. In the absence of agreement or circumstances operating to the contrary a vendor's lien arises whenever land is conveyed in consider- ation of acts to lie done by the grantee; the right is not limited to SENDEE V. VENDOR. of conveyance for a money consideration. Where, therefore, upon the partition of a piece of land held by tenants in common, one ee, »s pari of the consideration for bis grant, covenanted to oLtain for the other tenants in common a release of the contingent t ( ,f two persons in the land conveyed to tb s held that a lien attached apon the portion conveyed to him for the due per- formance of this covenant: Ward v. ~\Yillur, 27, A. It. 202. In this province on a sale of land, unless it is otherwise provided in the agreement, it is the duty of the vendor to prepare and execute the conveyance al his own expense, and a purchaser may maintain his action for breach of the contract without tendering a conveyance to the vendor for execution. Sweeney v. Qodard, 4 Allen (N.B.) .",0, followed: Dyxart v. Drummond, 7 M. L. R. OS (Man.). A con- tract sealed and delivered by one party, which is subject to the approval of the other parly, cannot be revoked by the former before the latter has had a reasonable time within which to signify this assent. Nominal damages only allowed against the defaulting party under the circumstances set out in the report: Waterous Engine Workt Co. v. Pratt, 30 O. R. 538. VENDEE AGAINST VENDOR. It vendor refuse or is unable to complete his contract, purchaser may sue for damages; or if purchaser has paid a deposit or part of purchase money, and he has not taken possession, he may sue to recover his money. So, if fraud is practised, he may rescind and sue for deposit. La a special action on the contract by the purchaser, he must prove (1) the contract, (2) the performance of con- ditions precedent. To enable purchaser to maintain an action for money had and received in order to recover the deposit the contract must be dis- affirmed ab initio upon grounds entitling him to such disaffirmance. When plaintiff seeks to recover the deposit he must prove payment to defendant or defendant's agent. Where the cor ral he can recover deposit only, but no damages. Iu other cases he may get the deposit with interest and expense of investigating title, etc.: Farguhar v. Farley, 7 Taunton 592; Wrayton v. Naylor, 24 S. C. R. 205. The purchaser under contract for sale of land is not entitled to a decree for specific performance by the vendor unless he has been prompt in the performance ot the obligations devolving upon him, and always ready to carry out the contract on his part within a reasonable time, even though time was not of its essence ; nor when he has declared his inability to perform his share of the contract. 2 1 3 214 ACTION ON SALE OF REAL PROPERTY. The purchaser waives any objection to the title of the vendor if he takes possession of the property and exercises acts of ownership by making repairs and improvements: Wallace v. Heaaelin, 29 S. C. R. 171. If the purchaser has taken possession of the premises under the contract, he has adopted the contract, and can- not disaffirm it afterwards hy quitting the premises. His remedy is then on the contract itself: Blackburn v. Smith, 2, Ex. 783. The benefit of a provision in a contract for the &ale of land, that if any objection or requisition be made by the purchaser which the vendor shall be unable or unwilling to comply with, the vendor shall be at liberty, by notice in writing, to rescind the agreement, is lost if the vendor's solicitor attempts to answer the requisitions and enters into negotiations with the purchaser's solicitor in regard to them. A vendor should either cancel the contract when he first reads the re- quisitions, or when embarking on the attempt to comply with them, or to remove the objections, should reserve to himself the benefit of the right to rescind further on during the negotiations : Crabbe v. Little. Moses v. Little, 14 O. L. R. 631. Where, on a sale of land, there has been a conveyance perfected, and the seller having no title the purchaser is evicted, unless fraudu- lent misstatement or concealment is made out, there can be no action except on the covenants, and where there are no covenants or none that will extend to the cause of action, there can be no action against the vendor: Thomas v. Vrooks, 11 U. C. R. 579. The purchaser is not in general entitled to recover "fancy" compensation where the vendor is, without fraud, incapable of making a title: Bain v. Fother- gill, L. R. 7 H. L. 158. Where, however, the sale does not go off for want of title, but by reason of the refusal of the vendor to take the necessary steps to give possession, the plaintiff can recover damages for the loss of the bargain, the measure of damages being the differ- ence between the contract price and the market price at the time of the breach. (S.C.). Where the contract contains a variety of stipulations of different importance, and one sum is stated to be pay- able on breach of performance of any one of them, then, though it be called liquidated damages, it is in reality a penalty, and the actual damage sustained is alone recoverable : Ex parte Capper, 4 Ch. D. 724. Loss of profit occasioned by, and the expenses which a purchaser of lands has been put to, on a resale by him, unknown to his vendor before such purchaser has entered into a binding contract for pur- chase, are not damages naturally flowing from the breach of the latter agreement, and cannot be recovered by him against his vendor. If recoverable at all, the true measure would be the increased value of the land at the time of the breach over thp purchase money: Loney v. VENDEE V. VENDOB. 215 Oliver, 21 O. R. 89; withdrawal of offer: Larkin v. Gardiner, 27 I). It. 124. An intending purchaser of land, who lias ben guilty of laches, bad faith, and default for a considerable time in payment of the cash stipulated for, disentitles himself to the i the judi- cial discretion to grant specific performance in his favour: Mabcr v. PenskaUki, 15 .Man. L. K. 236. To entitle a party to a contract to a decree for specific performance he must have been prompt himself in performance of the obligations devolving upon him, and always ready to carry out the contract within a reasonable time, even al- though time might not have been of the essence of the agreement. Specific performance will not be decreed when the party asking per- formance has declared his inability to carry out the agreement on his part. A purchaser of land who takes possession of the property and exercises acts of ownership by making repairs and improvements will be neld to have waived any objections to the title. Objections to title cannot be raised where the purchaser has made a tender of a blank deed of mortgage for execution for the purpose of carrying the purchase. Judgment appealed from (29 N. S. Rep. 424) affir Wallace v. Hesslein, 29 S. C. R. 171. When lands are bargained and sold, the measure of damages for non-fulfilment of the agreement is the price for which the lands were so sold: Lynch v. Ring, 2 Thorn. 418 (N.S.). While an agreement is open between the parties, and the time for performance has not arrived, a new agreement may be substituted for it postponing the period for performance, and the original consideration will be read as imported into such new agree- ment and will support it: Hurlburt v. Thomas, 3 U. C. R. ' O'Donncll v. Hugill, 11 U. C. R. 441. If the plaintiff part with anything that is of value to himself, though it may be of no legal value in defendant's promise, that forms a valid consideration for the promise: Bradford v. O'Brien, 6 U. C. R. 417. A misrepresentation by the vendor's acent without the know- ledge of the vendor as to the locality of the land sold, although inno- cently made, will, if relied on by the purchaser, be sufficient to entitle him to rescind the contract although he had the means of knowledge of the true location before he entered into the agreement. Rairlins v. Wickham, 3 De G. & J. 317, and Berry v. Peek, 14 App. Cas. 337. followed. P.ut, when the purchaser failed to complain of the representation within a reasonable time after he became aware of the true location of the property, and promised the vendor to the next instalment of the purchase money due under the agreement after it was overdue, saying that he was then a little short of m> it should be held that he had ehctcd to affirm the contract and had lost the right to rescind it. Clough v. London and North Wei R. W. Co., L. R. 7 Ex. 34, followed. Wolfe v. McArthur, 7 W. L. R. 124, IS Man. I,. R. 30. Misrepresentations not amounting to war- lanty. DeLasalle v. Guildford, (100n 2 K. B. 221. followed: Mcy 216 ACTION FOB DSE AND OCCUPATION. v. Simpson, (190S) 17 Man. L. R. 597, affirmed, (1908) 42 S. C. It. 230. Misrepresentation — abuse of fiduciary relationship. Fellowes v. Lord Gtoydyr, 1 Sim. 63, discussed and distinguished: Henderson y. Thompson, 41 S. C. R. 445. As there had not been a full and fair disclosure of material circumstances (leaving the vendor in ignorance of the position of the purchaser, he being the representative of the vendor's agent) sale could not be supported: McOuire v. Graham, 1(J O. L. R. 431, 11 O. W. R. 999. ACTION FOR USE AND OCCUPATION. Founded on 11 Geo. II., c. 19, s. 14.* This is a form of actios on the case, based on the relationship of landlord and tenant. Action of debt for rent on a contract for use and occupation lies at common lav, and not on this statute. The plaintiff proving a legal title to the premises, and a mere naked possession by the defendant, is entitled to a verdict. He need not prove an attornment or contract be- tween himself and defendant: Pri'e v. Lloyd, 3 U. C. R. 120. In Clendinninp y. Turner, 9 O. R. 34, a defendant counter- claimed for use and occupation against a plaintiff. He was held not entitled on the evidence. If defendant has come in under plaintiff, or has acknowledged title by payment of rent or otherwise, he cannot dispute plaintiff's title, bnt he may show it has expired. In general, title of plaintiff is established by the pro- duction of writing or agreement, 'which is proved in the usual manner; but if there be no actual lease or agree- ment, the plaintiff's title may be established by evidence of the defendant having paid rent to him or submitted to a distress. Notice to produce receipt for rent, or the notice of distress, should in such cases be given by the plaintiff. If it appear from the plaintiff's witnesses that defendant holds under a written agreement not produced, plaintiff will not be allowed to give oral •Now repealed S. L. It. 3902. It was as follows :— It shall be lawful for landlords, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements, or hereditaments held or occupied by the defendants in an action on the case for the use and occupation of what was so held and enjoyed ; and if, on the trial of such action, any parol demise or any agreement (not being by reon a certain rent was reserved shall appear, the plaintiff shall not, therefore, be non-suited, but may make use thereof as evidence of the quantum of damages to be recovered. DEFENCE. 217 evidence of the holding; bnt if plaintiff lias made out a prima . case, and the defendant seeks to Bhow tlmt be oder a wri agreement, he must produce the instrument, un tenable. There mint be an occupation or holding, actnal or constructive; therefore a tenant who Las agreed to take premises, but has not entered, is not liable to an action for use and occupation. It is prima facie sufficient for the plaintiff to prove that the defendant did occupy the premises, and the con- tinuance of the occupation will be presumed until the contrary appears. Although the premises are burned down and remain unoccupied, unless it be agreed that the liability shall cease after the fire, the tenant still continues liable in this action for the rent subsequently accruing, for the premises continue to be "held" by the defendant: Maker v. Hohzapfel, 4 Tauni. 4.". The fact of the premises having been insured, and the landlord having received the insurance money and not applied it to reinstating the premises, affords no equitable defence to the action: Lofft v. Dennis, 28 L. J. Q. V,. 168. If, after the determination of a lease, the tenant holds over and pays rent, such holding over and payment of rent are conclusive evidence of a tenancy ; and he will be liable in an action for use and occupation for the time that he occupies the pr< a ^hop v. Howard, 2 B. & C. 100. It is not necessary that there should be an express con- tract creating the relation of landlord and tenant between the parties; the relation may be implied. Thus where the defendant has entered under a contract for sale, which ultimately goes off, and his occupation has been a beneficial one, he may be liable in this action, but only for the period since the putting an end to the contract: Howard v. Shatc, S M. & W. 118: Winterbottom v. Ingham, 7 Q. B. fill; Burrows v. Gates, S U. C. C. 1*. 121. Where rent is mentioned in the lease or agreement, such rent will be the measure of damages; lint where there is no li the value of the premises must be proved. Executors nay sue for use and occupation of testator's land during his lifetime, but not where the lias been that the tenant should pay in produce, not money: Wallace v. Harold, 23 U. C. R. 279. DEFENCE. The defendant may rely on termination of tenancy, cither by expiry of landlord's title, or notice to quit, or eviction, or the bringing of an action for possession of ACTION FOR WASTE. premises for a forfeiture, or payment, or that tie premises have been knowingly let for an immoral purpose. Where it is quite evident that defendant did not occupy under the plaintiff, or with his permission, either express or implied, but under a third party, the plaintiff will be non-suited : McDonald v. Brennan, 5 U. C. R. 590. The defendant in the case of a ready- furnished house may rely upon the defence that there has been no beneficial occupation, whether by reason of the house being infested with vermin : Smith v. Marrable, 11 M. & W. 5 ; or of defective drain- age : Wilson v. Finch Ilatton, 2 Ex. D. 336. The tenant may give up occupation, and then ceases to be liable to pay rent. Not so in the case of an unfurnished house : Hart V. Windsor, 12 M. & W. 68, 86. The Statute of Limitations is a good defence in an action against a person who has been tenant from year to year, but who has not, within the last six years, occupied the premises, paid rent, or done any act from which a tenancy may be inferred, though no notice to quit has been given : Leigh v. Thornton, 1 B. & A. 625. If landlord has distrained, and retained the distress, though insufficient in amount, he cannot maintain the action. An action of covenant for non-payment of rent does not lie by the lessor against the lessee, where the lessor has parted with his reversion in part of the property since the lease ; the rent being entire and not apportionable : Rector, etc., of Sackville v. Bacon, 6 All. 134 (N.B.) Action for, does not lie against party who goes into possession under contract which fails. Where a vendor lets a vendee into possession of lands on a contract which afterwards goes off he cannot recover for use and occupation: Temple et al. v. McDonald, 2 Old. 155 (N.S.). To main- tain an action for use and occupation there must be some evidence of a holding by permission of the plaintiff; therefore, where there is no evidence of any contract or negotiation, and it appears that at an interview between the parties about the property, the defendant refused to make any arrangement and claimed the title, it was held that the action would not lie: McCulley v. Ward, 5 All. 505 (N.B.). No occupation rent should be charged against one who has been in occupation of land under mistake of title in respect of the in- creased value thereof arising from improvements which are not al- lowed him : McGregor v. McGregor, 5 O. R. 617. ACTION FOR WASTE, BAD HUSBANDRY, ETC. To obtain an injunction against the tenant to restrain waste It must be proved that what the tenant is doing is prejudicial to the inheritance. If it improves the value of the land it is not waste. Ameliorating waste discussed: Meux v. Cobley (1S92), 2 Ch. 253. An action for permissive waste will not lie against a tenant for life. In re Cartwright, 41 Ch. D. 532, followed. The spread of ACTION FOB WAS noxious weeds from nature , or by tie- action i I cal turing or eating hay or straw coming from the fields whore the weeds were, and the failure to slop the growth thereof, is no ei waste hut only of ill husbandry, and the fact that thcr< tute, It. S. O. 1887, c. 2<>L\ for the prevention of the spread of noxious weeds does not make any difference: Patterson v. Central Canada L. and S. Co., 29 O. R. 134. Action for waste lies on a contract not under seal, express or implied, and is in some cases founded on wrong, independent of contract, arising ont of the relation of landlord and tenant. In the former case the plaintiff must prove the contract, and the acts complained of which form the violation of the contract. In the latter case the plaintiff will have to prove the demise, the breach of covenant, and in both cases the damage. The general rule as to waste in common law is. that in order to constitute it there must be a diminution of value of the estate I or an increased burden upon it, or an impairing of the evidence of title: Huntley v. Russell, 13 Q. B. 572. The right of a remainder- man to sue tenant for life for waste arises when the waste is com- mitted, and the Statute of Limitations then begins to run botham v. Hawkins, L. R. 7 Chy. 676. In this action the defendant is entitled to the verdict unless the dam- ibstantial : v. Allman, 3 App. Cas. 733. The measure of damages is the diminu- tion of the value of the reversion, less a discount for immediate pay- ment : Witham v. Kershaw, 16 Q. B. D. 613. C. A. Where the in- tention of the testator requires that devised in terms larger than a mere life estate, shall be cut down to a life estate in order to give effect to other conflicting dispositions of the same property, there the Court will deal with such a life estate as one unimpeachable for waste. In this case White v. Brians, 2 Phil. 583, distinguished, and life tenant held liable for was' v. Clow, 4 (J. R. 3"). Protection of contingent interest, 17 P. C. R. 343. A tenant for life in this country may cut down timber in the proper course of good husbandry, iu order to bring the proper proportion of the land under cultivation, and perhaps destroy such timber; but he cannot cut down timber even for te purpose and soil it: maunders v. RreaLie, 5 «>. R. 603. A tenant who for the num. vendorim; the land more (it for cultivation collects the stones there- from has the property in the stones, and the landlord has no interest in them, and is liable for their value if ho disposes of them : I V. Godson. 1T» O. R. 252. A tenant in common is not liable to his co-tenants for outline timber on the common property: J/j/v Lindsay. 10 P. R. 173. If the reversion be not injured by the acts complained of, there can bo no waste and no forfeiture: Holdcrness v. Tnr displaced by the provisions of the Judicature A.c1 : Morris v. Cairncross, 14 O. L. It. 544. An action for waste can be maintained during the currency of a lease for the purpose of determining whether the removal of articles annexed to the freehold is warranted: Cullen v. Mcl'htrson, 40 N. S. R. 241. On determining whether an act of waste has been committed by a lessee on the demised premises the te&t is whether the act com- plained of by the lessor is an act which alters the nature of the thing demised: West Ham Central Charity Hoard v. Hast London Waterworks Co. (1900), 1 Ch. 024. ACTIONS ON BILLS AND NOTES. See Bills of Exchange Act, R. S. C. c. 110: Ca. 1908, c. 8. corrects s. 133. A person taking a negotiable instrument in good faith and for value obtains a valid title though he takes from one who has none. In the absence of circumstances to create suspicion as to the title of a transferor of a negotiable instrument, the transferee is not bound to make any inquiries into such title: London Joint Stork Co. v. Sim- mons (1802), A. <\ 201. What is a promissory note? Trimble v. Miller, 22 O. R. 500; Dominion Bank v. Wiggins, 21 A. R. 275. " 1 promise to pay " signed by more than one: Kinnard v. Tewsley, 27 O. R. 308. "Where to an action on a note against the makers, defendants pleaded fraud : Held, that the note must he proved, and that as defendants had idven no notice to produce, and it was not shewn that the plaintiffs or their attorney had the note in Court, the defence could not be gone into: Hank of Montreal v. Snijder, IS U. C. R. 402. Under the Married Woman's Property Acts of Nova Scotia, a promissory note indorsed to the maker's wife can be sued on by the latter against her husband: Michaels V. Michaels. 30 S. ('. R. 547. Parol evidence will not hi' received to shew that a person who indorsed a promissory note to auother for valuable consideration, stipulated at the time that he was not to be liable on the indorse- ment. Smith v. Squires, 13 Man. L. R. 300, followed: Emerton v. Brwin, 10 B. C. R. 101. LOTIONS ON BILLS AND NOTES. Held, that upon payment of the amount of the note by the plain- tiff to the original holder, the plaintiff being liable as indorser to such holder, the plaintiff became entitled to the note, and to enforce his rights against the other parties to it, and as it appeared that two of the defendants had endorsed the notes as sureties to the plaintiff t» the makers, he was entitled to recover against them although the note was made payable to his order: Bcgg v. Howlett, 28 O. R. 473. Time when statute begins to run. — The bill of exchange in this action fell due on the 1st December, 1875, and the writ issued on 1st December, 1881 : — Held, that the statute began to run on 2nd De- cember, 1875, and therefore this action was commenced in time: Sinclair v. Roosov, 16 U. C. It. 211, remarked upon : Edgar v. Magee, 1 O. R. 287. Where an agent accepts or indorses " per pro," the taker of a bill or note so accepted or indorsed is bound to inquire as to the extent of the agent's authority, and where an agent has such authority his abuse of it does not affect a bona fide holder for value : Bryan v. Quebec Bank (1893), A. C. 170. " 1 promise to pay," signed by two is joint and several : Grcigh- ton v. Fretz, 26 U. C. R. 627. See s. 84, Bills of Exchange Act. Solicitor's Clerk. — A firm of solicitors in whose name a note has been placed for suit got the authority of the plaintiff, who was then a clerk in their office, to use his name for the purpose of the suit: — Held, that he was the lawful holder: Shepley v. Hurd, 3 A. R. 549. What is a sufficient notice of dishonour, when the facts are undisputed, is a question of law: Bank of Upper Canada v. Smith, 4 U. C. R. 483. Where the cheque of a third person is received from a debtor as conditional payment of an antecedent debt, the creditor must, without undue delay, present the cheque for payment, and if it is aishonoured notify the dentor of the fact and claim recourse against him on the original indebtedness. Unless this is done the creditor will be taken to have accepted the cheque in payment of the debt ana the debtor is discharged : Sawyer v. Thomas, IS A. R. 129. A notice of non-payment addressed merely " to the executrix, or executor of the late Mr. Jones, Toronto," is bad : Bank of British North America v. Jones, 8 U. C. R. 86. A promissory note was payable in eighteen months after date, with interest at seven per cent, per annum, payable half yearly : — Held, that in order to bind the indorser, it was necessary to present the nolo for each instalment of interest and give him notice of dis- honour : Jennings v. Napanee Brush Co., 4 C. L. T. 595. Remarks as to the practice in this country of taking notes for discount not from the last indorser, but from the maker, who brings [0N8 OX lUl.i them indorsed, thus suggesting not :l business transaction, but aco modatiou indorsements: Bank of Montreal v. Reynolds, 25 \' . C. R. .?52. Po isrtner to indorse his partner' cheques: Manitoba Mortgage Co. v. Bank of Montreal, IT S. C. K. 002. If a bank refuse to pay a cheque, having sufficient funds of the drawer for the purpose, the holder can compel payment in equity. But the fact of there being sufficient at the drawer's credit in the Hank ledger when the cheque was presented, is immaterial, if the ledger did not shew the true state of the account: Gore Bank v. Royal Canadian Bank, 13 Chy. 425. A note made here payable at a place in the United States, but not " not otherwise or elsewhere," is payable generally, and the law and good currency of the place of contract must govern: Hooker v. ueslie, 27 V. C. R. 295. Plaintiff and defendant resided about three miles apart ; the mail ran between both places, and closed where plaintiff resided on .Mon- day, Wednesday and Friday in each week ; the bill was presented foi payment on Monday the 4th, being the last day of grace, and not paid ; there being no mail on the 5th, notice was served on the defendant by a special messenger on the 6th, before it: could have reached him had it been mailed on that day : — Held, in good time : Chapman v. Bishop, 1 U. C. C. P. 432. A foreign bill may be referred to the master for computation: Meyer v. Hutchinson, 16 U. U. R. 476. Interest made payable by a note is part of the debt. A note made here, promising to pay V. or order, at Chicago, $ American currency : — Held, a pood promissory note : Third National Bank of Chicago v. Crosby, 41 U. C. R. 402: see Wallace v. Souther, 16 S. C. R. 717. Under the circumstances of this case the cheques must be regarded as payable to fictitious or non-existing persons, and therefore under s.-s. 3 of s. 7 of the Bills of Exchange ' and th td the right to pay and charge the company the amounts. Governor and Company of Bank of England v. Vagliano (1891), A. C. 107, followed: London Life Insurance Company v. Mot- sons Bank, 8 O. I-. R. 238. In an action upon two promissory notes for $3,000 and $4,006 respectively, nn want plaintiff wa bona fide holder for value. At the trial the defend that the notes were given merely as receipts for stock which had been to defendants for sal here was no consideration for the notes, and that the plaintiff, who was a clerk in tl >f his solicitors, had given no value therefor; also that a written . 224 ACTIONS ON BILLS AND N< - r of the siock made between the payee of the note and another, and one of the defendants' firm, had never been acted upon, or had heen abandoned: Held, that whether or not evidence admissible to shew that the notes were given ns receipts, the defend- ants were entitled to give in evidence all the facts which would tend to establish want of consideration, and this having been denied them. a new trial was dire ted: Clarke v. Union Stock Underwriting Co., 16 O. L. R. 102. When a promissory note is taken from a borrower as collateral security for money lent to him, and not in paj be brought for the money lent, notwithstanding that, owing to the form of the note, an action thereon could not be maintained : Secor v. Gray, 22 Occ. N. 27, 3 O. L. R. 34. Signature by managing director of company— personal lis Chapman v. Smethurst ( 1909 I, 1 K. B. 027. See T.andes v. Marcus. 2 ■ T. L. It. 47S. The provisions of the Bills of Exchange Act as to the liability of a person who signs a bill otherwise than as drawer or acceptor aie not satisfied unless the bill be complete on the face of it when signed by such person: Jenkins v. Comber (1898), 2 Q. B. 168. It is a good defence for a debtor sued on a debt for the discharge of which he had originally given a bill of exchange that at the time of the issue of the writ the bill, though dishonoured, was in the hands of a third party: Davis v. Reilly (1898), 1 Q. B. 1. Material alteration by inserting "Limited" invalidated note. Bank of Montreal v. Exhibit and Trading Co., 22 T. L. R. 722. A promissory note does not become due when it is presented for payment and dishonoured on the last day of grace, and the holder cannot take action for the recovery of the amount of such until the expiration of such day of grace : Kennedy v. Thomas (1S!>4), 2 Q. B. 759; West away v. Stewart, 8 W. L. R. H07, 1 Sask. L. R. 200. Where it is admitted or shewn that the "iaker of a promissory n te has been induced to sign it by fraud, the effect of s. 58 of 1 he Bills of Exchange Act is to throw upon an ind value the onus of proving affirmatively his honesty and good faith in becoming the holder of the note. See Union Investment Co. v. Wells, 39 S. C. 11. 02..; Jones v. Gordon, 2 App. Cas. 616; Peters v. Perras, 8 W. L. B. i62, 1 Alia. L. R. 201. The doctrine of constructive notice is not applicable to bills a notes transferred for value: Union Investment Co. v. Wells, ut sup. issory noie made by two persons in favour of the plaintiff was after maturity signed by the defendant at the plaintiff's request without any agreement or understanding for extension of time PAYEE V. MAKER. or forbearance: Held, that the procurement of such signature wee not equivalent to an agreement not to sue and in this respect no e baa been made by the Hills of Ex< : Ryan v. .!/< ral, in O. R. 460; Stack v. Dowd, 10 <>. \\\ R. 633, IT, O. I.. R. 331. On the back of a certain promissory note appeared the signatures of K. and B. underneath the words "We guarantee payment of ? il note." K. :ui(l I!, held liable as endorsers. Lock v. Reid i'. O. S. 295, no longer represents existing law under sec. 131 >>f Bills of Exchange Act: Lehigh Cobalt Silver Mines Co. v. Heckler (1908), IS O. L. R. 615. li* <>. W. ir. 854. An offer made after its maturity by an endorser of a promise note to pay the same will n<>; operate as a waiver "i* presentment in the absence of evidence i hat at the time of tic offer ho knew there had been default in presentment: Ayer v. Murray (1909) N. !I. R. 170. PAYEE v. MAKER OF NOTE OR ACCEPTOR OF BILL. Plaintiff must prove hand-writing of person whose name appears as maker of note or acceptor of bill. The acceptance is proved by evidence of the acceptor's hand- writing, and the production of the bill with such proof is prima facie evidence of acceptance before action brought, as the presumption is that it was accepted within a reasonable time after date, according to the regular course of business, and before maturity: Roberts v. Bethell, 12 C. P>. 77S. If several (not partners) are acceptors, the handwriting of all must be proved : Gray v. Palmers, 1 Esp. 135. If one of several partners acepts a bill drawn on the firm, it is suffi- cient to prove the partnership and his handwriting in an action against all: Mason v. Rumsey, I Campbell, 384. It ia a good defence that the plaintiff had notice that ih.e firm would not be hound by such an acceptance: Jones v. Corbcit. 2 Q. P.. 82S ; or that the bill was not accepted for partnership purposes, and that there was covin betwc:u the partner who accepted and the plaintiff. After an action brought against a firm as makers and a prii indivdual as endorser of a note had been dismissed as against the individual, a further action against him to declare him liable as ner was dismissed : Ray v. Isbister, 22 A. R. 12. If the acceptance is hy an agent, his authority and handwriting must be proved. Proof <>( presentment is necessary against the ac a qualified acceptance, but not on a general acceptance, even where the bill is payable on demand. If the bill or note be payable after sight it must be presented in order to charge the acceptor or maker. K.F. 15 ACTIONS OX BILLS AND NOTES. INDORSEE v. MAKER OR ACCEPTOR. Plaintiff must first prove the making of the note or acceptance of the bill. The acceptance admits the drawing. Then the indorsement must be proved, and, if special, it mnst appear that the indorsee is the person described in it. If instrument be payable to bearer or indorsed in blank, it Is un- necessary to prove a subsequent indorsement unless alleged. A promise to pay, or an offer to renew a bill or note made to the in- dorsee after it is due, is an admission of the holder's title, and will make the proof of indorsement unnecessary ; but the admission of the indorser is evidence against him only, not against other parties. When the indorsement is by an agent, it is necessary to show that the person by whom the indorsement is written had the authority of the person whose name is written. In such a case an authority to draw does not of itself impart an authority to indorse bills, but it is a fact which ought to go to the jury as evidence. All the indorsements that have been stated, though unnecessary, must be proved against the acceptor: Waynatn v Bend, 1 Campbell. 175. By striking out intermediate indorsements the plaintiff loses the security of those indorsers. When a bill is indorsed in blank, pos- n is sufficient prima facie title, and several plaintiffs suing as indorsees need not prove that they are in partnership, or that the bill was indorsed to them jointly: Ord v. Portatt, 3 Campbell 239. But where it is specially indorsed to a firm the partnership must be proved to consist of the plaintiffs, if sued in individual names of persons composing firm, and not firm name. DRAWER v. ACCEPTOR. When a bill, though not payable to the drawer's own order, has been dishonoured by the acceptor and taken up by the drawer, he may the acceptor: Simmond? v. Parminter, 1 Wilson 185. He must prove: 1. The acceptance. 2. The presentment to the defendant and his refusal to pay, which may be done by calling the person who presented the bill, or by proving a promise by the defendant to pay, which dispenses with proof of the presentment. 3. The return of the bill to and payment thereof by the plaintiff. V\\ hi: V. DRAM . PAYEE OH INDORSEE v. DRAWER. The plaintiff must prove : 1. The drawing of the bill. Thi ■ proved by evidence of the drawer's handwriting, or, if drawn by an agent, by proving the authority of the agent and his Handwriting. 2. Presentment to the drawee for acceptance, or to the acceptor for payment. It is not sufficient to show that the bill was presented to soi on the drawee's premises without connecting him with the drawee: Cheek v. Roper, 5 Esp. 17.". The bill must be left with the ■rawee for twenty-four hears, unless during that time he either accept or refuse to do so: Van Dieman v. Victoria, T.. R. 3 P. C. 543. A. part payment, or a promise to pay after the i>i!l is due. is prima facie evidence as an admission that the bill was duly presented: Lundie v. Robertson, 7 East 231. 3. Default. 4. Notice of dishonour. See Merchants Bank v. McDougall, 30 T. C. C. P. 230. What is sufficient evidence of waiver of notice of dishonour discussed: Britton r. MiUom, V.) A. R. 96. 5. In case of an indorsee, the indorsements. INDORSEE v. INDORSEE. First prove indorser's signature, which admits ability, and signature of every antecedent party; then presentment for payment or acceptance and dishonour; lastly, notice of dishonour or competent excuse for neglecting to give it. SNCES TO ACTIONS ON BILLS OF EXCHANGE AND PROMISSORY NOTES. The principal defences are as follows: Negotiation of overdue or dishonoured bill. Loss, of bill. Alteration. Payment. Failure or want of consideration. Fraud. ery. Illegality. Illegality of consideration. 228 ACTIONS ON POLICIES. Agreements at variance with bill or note. Voluntary discharge and waiver. Alteration of the position of the parties, giving time, etc. By section 30, sub-section 4, of the Bills of Exchange Act, 1890, sees. 14, 15, 16 of B. S. C. c. 110, notes given for a patent right must have the words "given for a patent right" written or printed on such notes when issued. If not. they are void, excepl in the hands of a holder in due course without notice of such consideration. This provision considered: Johnson v. Martin, 19 A. R. 592; Samuel v. I'airgrieve, 24 S. C. R. 178. An accommodation note used in bad faith ordered to be delivered up: Miller v. Plummer, 22 S. C. R. 253. A person writing his name on the back of a non-negotiable note without more is not a guarantor, nor is he liable as endorser: Robert- son v. Lonsdale, 21 O. R. GOO. A president of an incorporated com- pany discounted notes, using the company's name. Held, that the company must affirm or disaffirm the transaction altogether, and could not repudiate the liability on the note and at the same time take the benefit of it : Bridgewater Co. v. Murphy, 26 O. R. 327. A renewal of a note is not a negotiation of it within the meaning of section 75 of the Bank Act (Dom. Statutes, 1890, c. 31) so as to support a security taken at the time of the renewal in substitution for a previously existing security: Bank of Hamilton v. Shepherd, 21 A. R. 186. The maker of a negotiable note is not bound to pay it unless the party demanding payment produces and offers to deliver it up: Jordon v. Coates, 2 All. 107 (N.B.). Plaintiff gave his note for the deposit required on a purchase at auction, but subsequently refused to carry out the contract and sought to recover the amount of his note : Held, on the authority of Black v. Gesner and Gray v. Whitman, 2 Thorn. 157, that he could not recover: Lindsay v. Zicicker, 2 N. S. D. 100 (N.S.). If in an action against the maker of a promissory note the defence is want of consideration, and that the note came into the plaintiff's possession by fraud, that question should be left to the jury: Smith v. Fleming, 2 Han. 147 (N.B.). ACTION ON POLICY OF INSURANCE. MARINE INSURANCE. By section 2 (g) of the Dominion Insurance Act, R. S. C. c. 34, " inland marine insurance " means marine insurance in respect to subjects of insurance at risk upon the waters of Canada above the harbour of Montreal. By section 4 (a) that Act does not apply to any company transacting, in Canada, ocean marine insu ranee exclusively. Cap. 105 B. C. R. S.. 1897, is an Act respecting marine insurance. MARINE [NSUB \' The plaintiff may be called on to prove the Following facts: 1. The subscription or execution of the policy by the defendant. The policy muit be produced and proved, and if subscribed b7 an agent of the defendant the hand- writing and authority of the agent must be proved. It the authority of the agent was in writing, it should generally be produced; but the authority may also be proved by shewing that th- defendant has recognized the act of the agent in this instance, or in other similar instances in which he subscribed policies for the de- fendant: Veal v. Erving, 1 Esp. 61 ; Brncklelank v. Hugruc, T> C. & P. 21. 2. The interest of the party as averred. 9 Edw. VII. c. 12 is the Marine Insurance (Gambling Policies) Act, 1909 (Imp.). Insurances without interest, or wagering policies on British ships ids therein, are void by 19 Geo. II., c. 37, s. 1, R. S. O. 1897. c. 339, sees. f>, »> and 7, and the interest must be proved otherwise than by the policy itself. In the case of foreign ships interest need not be alleged or proved. A party has a right to insure property over which he has an equitable lien. Neither the actual nor con- structive possession of the property is necessary to be in the insurer. either at the time of issue of the policy or when the loss insured against takes place. It is sufficient if he have an equitable lien on tlie specific chattel property covered by the policy: Clark v. Bcottish Imp., 4 S. C. U. 192. The interest in the ship, as stated in the claim, may be proved prima facie by evidence of possession of the ship, or of acts of ownership, as directing the loading of the ship, purchasing the stores, paying the people employed, etc. A common mode of proof is to call the master, who will prove that he was appointed and employed by the parties in whom the interest is averred. The interest in goods may be proved prima facie like the interest in the ship, by evidence of possession and acts of ownership. It is also frequently proved by the production of the bill of lading: Lickbarroto v. Maaon, 2 T. R. 71; Seograve v. Union, L. R. 1 C. 1'. 305. The plaintiffs held to have an insurni ' under the agreement in evidence on roods on board when policy effected, and also on return cargo: Merchanti v. Rumtey, 9 S. C. It. 577. 3. The putting of th.e goods on board when the polioy is on £oods. The shipment of goods on board is usually proved by the captain. If he be dead, the production of the bill of lading and proof of his ■2 'J 9 230 ACTIONS OX FOLIC II handwriting will be evidence of the shipping. In an action upon a policy on freight the assured must shew that some freight would have been earned, either by proving that Borne goods were put on hoard, or that there was some contract for doing so : see Potter v. Rankin, L. It. 6 H. L. 83. 4. The inception of the risk. ■Where the vessel is lost in the course of a voyage for which she is insured, some proof of the inception of the voyage or risk must be given : Roster v. Innes, Ry. & M. 333. This may be proved by some of the crew, or proof of a particular destination by charter party will afford a presumption that she sailed on the chartered voyage. The risk in the case of a voyage policy on the ship to a port, without any provision as to her safety there, terminates when she is anchored at the port in the usual place for discharge of her cargo: Stone v. Marine Ins. Co., 1 Ex. D. 81. But the policy usually extends in terms to the end of a period of twenty-four hours after mooring in safety in port. In the case of goods the risk depends on the agreement of the parties, but it usually begins with the loading on board and ends with the safe discharge, including their passage to the shore by usual means. 5. Compliance with warranties. Warranties may be either express or implied. Implied war- ranties are: (1) That there shall be no deviation from the voyage insured; (2) That it shall be commenced without unreasonable de- lay; (3) That all material circumstances shall be disclosed to the underwriters; (4) That the ship shall be seaworthy. A breach of these conditions avoids the policy, whether there be fraud or not. An express condition against storing of oil not infringed by a small quantity of lubricating oil for engine : Mitchell v. City of London Ass. Co., 15 A. R. 2C2. 6. A license for the purpose of legalizing the voyage in some cases, e.g., in case of war trading with an alien enemy. 7. The loss. A loss may be total or partial, and a total loss may be either actual or constructive. Where the loss is actually total no abandon- ment is necessary to found a claim, e.g., where the ship is lost, or destroyed, or raptured, or reduced to a wreck. In order to make out a constructive total loss the plaintiff must shew that the cost of repair would have exceeded the value of the ship when repaired. In order to justify an abandonment there must have been that in in* course of the voyage which at the time constituted a total loss : Holds worth v. Wise, 7 B. & C. 794. The condition of payment was a report of loss which was to be subsequently adjusted : Held, adjust- ment not a condition precedent to right to recover: Bank of B. N. A. MAKINK [NSUB 'AH. v. II i. -tern. 7 O. Ii- 166. A mot an actual total loss. II.' is not precluded from recovering as for a constructive total loss upon giving notice of abandonment: Anchor v. Keith, s. <\ R. 483. As to liability of reinsurer, see Phoenix v. Anchor, 4 0. R. 524. Notice of abandonment must be given. It may bo made orally. 8. The amount of it. In open policies the assured must prove the extent of his loss. In valued policies, if the loss be a total one, the assured )'» only bound to prove some interest in the ship or goods. Where the loss is partial the plaintiff is as much bound to prove the value of the goods that have been lost, and to ascertain the damage h : has sustained by the loss, at in the case of an open policy. The amount recoverable depends on the value of the thing in- ', the sum insured and the amount of loss. Generally policy requires action to be commenced within a certain time. See Robertson v. Pugh, 15 S. C. R. 1 In ascertaining the loss in an action on an open policy the true value of the thin? insured is the criterion; but on a valued policy 3ured can only recover to the amount that the thine is valued in tho particular policy, and if he has already received that value on another policy ho cannot recover anything 1 further, although the true value and the loss be beyond what he has already received: Bruce v. Jones, 1 II. & C. 7t;i) ; Anchor v. Phasnice, V, A. R. 567. Claim for return of premium is often added to a claim on the policy, and tho question of the right to recover arises on the failure of the plaintiff to establish his case on the policy. See Western v. Scanlan, 1^ S. (". R. 207. Where policy is void ah initio, or where there is no insurable in- terest innocently, premium or part of it may be recovered. If the risk lias never commenced there must be a return, or if the policy is avoided by failure of warranty without fraud. On average. Western Ass-. Co. v. Ont. Coal Co., 20 O. R. 205. To give rise to a claim for general average contribution there must have been a general average act or something following a gen- eral average act and so intimately connected with it that the i thing may be treated as one continuous act necessary to relieve the whole venture from a common peril. If the consequence of a peril •f the sea is merely to render the ship unable to fulfil her contract • r the cargo unfit to be carried on — there being no common p ril — acts done to make the ship fit to fulfil her contract or the cargo fit 232 ACTIONS ON roi [CIES. to be carried on do not constitute general average expenditure: uamcl v. P. iS. O.. etc. (1908), 2 K. B. 298. Every vessel submerged in a river is not ipso facto to be deemed a constructive total loss. The total loss of its cargo rendering the further prosecution of the particular voyage or adventure " noi worth pursuing" does not, in itself, warrant a finding that the vessel is a constructive total loss: Sedgtoick v. Montreal Light, etc., Co., 41 S. C. R. 639. "Coatrabrand of War" does not apply to persons but only to property: Yangtsze Insurance Association v. Indemnity Marine Ass. Co. (1908), 2 K. B. 504. Section 502 of the Imp. Merchant Shipping Act, 1894, which exempts the shipowner from liability to make good damage happen- ing without his default, where goods on board are damaged by fire, does not apply to claims on general average: Greenshields v. Stephens (1908), A. C. 431. DEFENCES. Any special defence must be set up. such as insufficient subscrip- tion, concealment, misrepresentation, fraud, illegality. Held, that the condition clause written across the face of a marine policy of insurance must prevail over the printed parts of the policy which are at variance with it: Meagher v. Home Insurance Co., 11 U. C. C. P. 328; Meagher v. /Etna Insurance Co., 20 U. C. R. 607. There is an implied condition in a contract of marine insurance not only that the voyage shall be accomplished in the ordinary track or ^course of navigation, but that it shall be commenced and completed with all reasonable and ordinary diligence: any unreasonable or inexcusable delay either in commencing or completing the voyage alters the risk, and absolves the underwriter from liability from subsequent loss. In of deviation by delay as in case of departure from the usual course of navigation it is not necessary to shew that the peril has been enhanced in order to avoid the policy. Judgment appealed f»-om (21 N. .S. Rep. 244) affirmed: Spinney v. Ocean Mutual Marine Ins. Co., 17 S. C. R. 320. Notice of abandonment must be given by the legal owner of a vessel. Where such notice was given. by an equitable owner, and a verdict recovered against the underwriters ns for n con- structive total loss, the. verdict was set aside; the plaintiff only being entitled as equitable owner to recover for partial loss: Miilidgc v. Ktymc.it. r, All. 164 (N.B.). A mere error or defect in .judgment or negligence on the part of the master (although the result is the total loss of .the property insured), when' there has been no criminal or fraudulent intent, is not barratry: Wolff v. The Merchants Insurance Co., vol. 31, 577 (N.B.). It is not the state of the vessel at. the time \< 1 li> landonment is given, but its i al the ti action broti lit, tbat determim i bether the Iobs if a total or partial one: Kennedy, et.al., v. Halifax Marine Ins. Co., 1 Thorn. (1st Ed.) 113; (2nd Kd.) l-li i.VS.i. To constitute a total loss within the policj of marine insurance, il is n< ry that a ship should be actually annihilated or destroyed. [£ il ia loss to the .hi adverse valid and legal transfer of his righl of property and possession to ;i purchaser by a Bale under a decree of a Court of competent jurisdiction in consequence of a peril insured against, it- is as much a total loss as if it had been totally annihilated: Cossman v. West; Ooasman v. British American Ass. Co., Consolidated Appeals, i.. K. 13 App. <'as. 160 (N.S.). A time policy unless there bo special restrictions confers r of sailing from any port, domestic or foreign, nnd in this province foreign employment must !><• understood t,, be as much in the contemplation of tie' owner and insurer as C use: Avon Marine Ins. Co. v. Barteaux, '2 X. S. I>. 195 t. X.S.i. Whether a (May in a voyage is unjustifiable or no1 question of law for the Judge; hut whether unreasonable or not is a question of fact : h'>>>i and another v. Weldon, 1 Han. 4u0 (N.B.). The proper test in respect to goods which ha a damaged and taken to an intermediate port, whether memorandum articles or no', is not whether an uninsured owner would have gold them there, but whether they can he sent on to their destination at a less expense than their value on arrival there, for when the whole or any part of the cargo can he sent on the master has no authority to sell, nor can the assured recover for a total loss: Watson v. Mercantile Marine Ins. : N. S. D. 396 (X.S.i. Actions for S By s. 951 inada Shipping Act, K. S. <'.. c. 113, the Im- perial Merchant Shipping Act, IS'.M. is repealed so far as relat istered in Canada. Sections T.'.T to 77"J. inclusive, of the Canadian Act relate to claims for salvage. As to salvage: Inter- lonal Wrecking Co. \. Lobb, 11 O. R Salvage is an obligation of an exceptional nature, to indemnify those by istance a ship, her cargo, or the lives () f tie board are saved from imminent loss. The eleme f danger ai minent loss to the ship, etc., is essential, and, without it. no cli ; salvage can arise: Montreal Lighterage Co. v. Gordon, Q. R. 28 S C. 198. Salvage is not alwa compensation for work ami lal various circumstances upon public considerations, the i.: commerce, the benefit and security of navigation, the lives of men, render it proper to estimate a salvage reward upon a more en- larged and liberal scale. The ingredients of a salvage service enterprise in the salvors in going out in tempestuous W( 234 ACTIONS ON POLICIES. to assist a vessel in distress, risking their own lives to save their fellow creatures, or to rescue the property of their fellow subjects; secondly, the degree of danger and distress from which the property is rescued, whether it were in imminent peril, and almost certainly lost if not at the time rescued and preserved; thirdly, the degree of labour and skill which the salvors incur and display, and the time occupied ; lastly, the value. Where all these circumstances concur a large and liberal reward ought to be given, but where none or scarcely any take place the compensation can hardly be denominated a salvage pensation ; it is little more than a mere remuneration pro opere et laoore: The W. G. Putnam, Y. A. D. 271; see also The Vanguste Andre, Y. A. D. 201. Salvage (apart from life salvage) is by the maritime law of England confined to ship, apparel and cargo, or what has formed of these, and to freight earned by carriage of cargo, and is not applicable to a gas float used as a floating beacon, which, though capable of being moved on the face of the water, is not a " ship or vessel " in the sense in which the Merchants Shipping Act used these terms, or in any fair sense of the words: Gas Float Whitton (No. 2). G6 L. J. P. 99; (1S97), A. C. 337; 70 L. T. GG3 ; 8 Asp. M. C. •-'72. In assessing value of ship, besides annual depreciation, original construction and subsequent care, as well as type of vessel must be considered: Dunsmuir v. The "Otter;' 10 W. L. R. 380. Effect of delay in delivering salved goods to receiver of wrecks considered : The Manhattan v. SulUvan, 11 Ex. C. R. 151. Under a claim for life salvage, risk or serious apprehension of danger to the lives of those who have been rescued will entitle those rendering the services to life salvage even if the lives of those rescued were not in actual danger. The pecuniary value of the life of any one saved cannot be taken into account. Where the services can be adequately recompensed by an inconsiderable sum, the huge value of the vessel and her cargo is not an element of importance: The Suevic (No. 1), 77 L. J. P. 92; (1908), P. 154; 98 L. T. 188; 11 Asp. M. C. 10, FIRE INSURANT 1 !:. Th" Statutes of the Dominion and Provinces relating to fire in- surance are as follows : — Dominion — The Insurance Act — R. S. C. c 34. Part III. of this Act relates to Fire and Inland Marine Insurance. By e 107 no fire policy shall be issued for or extended over three years. \r benefit of mortgagor. The interest of the mortgagees was the same as if they were as- signees of a policy effected with the mortgagor and payment to the mortgagees discharged the mortgage. The company wen 1 not justi- fied in paying the mortgagees without first contesting their liability to the mortgagor, and establishing their indemnity from liability to 236 aci cons o him; nut having done so, they could not in an action by the mort- gagor raise any questions which might have afforded them a defence in an action against them on the policy: Imperial v. Bull, 18 S. < . R. 697, affirming 15 A. R. 421. Followed in McKay v. Norwich, • :. 251. Mortgagees held nol entitled to consolidate their mort- gages so as to be paid the whole of the insurance moneys: Re Union Assurance Co. v. Lang. 23 O. R. 627. Contrad for sale of insured building no change of title: Ardill v. Citizens. 22 O. R. 529. The Mortgage Act, R. to. O.. c. 121, s. 4, is intended to take the place and extend the operation of Imp. Act, 14 Geo. III., c. 78, which was held to be in force in this Province, and to be enforce- able by a mortgagee: Stinson v. Pennock, 14 Chy. 604. The Imperial Act was repealed as to Ontario by 50 Vict. c. 26, s. 154. Section 4 of R. S. O. c. 121, is considered in Edmonds v. Hamilton, 18 A. R. 847. The decision in Edmonds v. Hamilton was that where insurance moneys are received by a mortgagee under a policy effected by the mortgagor pursuant to a covenant to insure made under the Short Forms Act, the mortgagee is not bound to apply the insurance moneys in payment of arrears, but may hold them in reserve as col- lateral security while any portion of the mortgage moneys is unpaid: nor, though he applies part upon overdue principal, is he bound to apply the balance in discharge of overdue interest. See Waterous v. SIcCann, 21 A. R. 486 See now Ont. Slats. 1910, c. 51, which declares right's of mortgaj It is necessary to shew an interest in the subject in- sured at the time of insuring and of the fire: Howard v. Lancashire, 11 S. C. R. 92. ■ a contrad of indemnity, the assured can only recover the actual loss or damage sustained by him, according to the real quan- tities and value of the goods at the time of the fire: Caldwell v. lacona, 11 S. C. R. 212. An unpaid vendor who by agreement with his vendee has insured the property sold, may recover its full value in case of loss, though his interest may be limited, if when he effected the insurance he intended to protect the interest of the vendee as well as his own.— The facl thai the vendee is not the sole owner ated in the policy nor disclosed to the insurer: Kcefcr v. Phoenix Ins. Co., 31 S. C. R. 144. A condition in a policy of fire insurance provided that no action should be maintainable against the my claim thereunder until after an award obtained in anner provided, fixing the amount of the claim. Held, that E such award was a condition precedent to any right of action to recover for a loss under the policy: Querin v. Manchester Fire Assur. Co., 29 S. C. it. 139. The lex fori must be presumed to be the law governing a contract unless the lex loci be proved to be ■ r.t : Canadian Fire Insurance Co. V. Robinson, 31 S. C. R. 488. LIFE ENSURE Where the evidence is contradictory regarding of a policy it and the assignmenl must be accepted according to their purport. The ■ fill [ Btopped denying the non-payment oj the premiums where same was charged to tlc-ir . has uo1 been disputed until action. Overvaluation of goods not know- ingly made cnnnot bo taken advantage of by defendants: Trotter v. h eatern Fire Ins. < <>., 9 W. L. R. 664. " Keeping of gasoline construed: Equity Fire In*. Co. v. Thomp- son, 41 S. C B. I'.H : Mitchell v. London, 15 A. II. 262, distinguished. Vendors' liens not material to risk, nor the giving a chattel mort- gage subsequent to the application for insurance; Fritzley v. Qer- . 19 O. L. Et. 49; M O. W. R. 18. Cessation of occupancy. Premises re-occupied at time of ■ of. Paj/8on v. Equitable Fire Ins. Co., 5 E. L. R. 186, 38 N. B. R. 436. An arbitration clause in policy more stringent than statu' clause rejected: Cole v. London Mutual 10 (). W. R. 930, 15 O. L. K. Kin. Every statement in an insurance application was by a pro- vision in the policy warranty. Being an addition to statu- tory condition, the R. S. N. S. c. 147, must be complied with to make warranty effective: McNutt v. Western Assce. Co., 40 N. S. K. 375. Effect of change material to risk by tenant without know- ledge of landlord: London & Western Trusts Co. v. Canadian Fire Ins. Co., 8 O. W. R. 872, 13 0. L. R. 540. LIFE INSURANT Same general line and same defences, remembering that this is not a contract of indemnity: Confederation v. O'Donnell, 13 S. C. R. 218; North American v. Craigen, 13 S. C. R. 278; Manufacturers' Life v. Gordon, 20 O. R. 323. The following are the Statutes of the Dominion and of the Provinces which relate' to this subject: — Dominion, R. S. C. 1906, c. 34; 1908, c. 69. Ontario Ins. Act., R. S. O. 1897, C 203. (Amendments stated above under Fire Insurance.) Manitoba, R. S. 1902, c. 8-i. (Amendments above.) New Brunswick 1905, c. 1: 1907, c. 7. Nova Scotia 1903, c. 15; 1903-4, c. 22. Insurance for Benefit of Wives and Children: — British Columbia, It. S. 1897, c. 104. Manitoba. R. S. 1902, c. 83. New Brunswick, C. S. 1903, c. 80. 287 238 .U i [ON 3 ON POLICIES. ence. — (1) Non-Payment of Premium Note. A condition in a life policy provided that if any premium or note given therefor was not paid when due the policy should be void. Where a note given for a premium under said policy was partly paid when due, and renewed, and the renewal was overdue and unpaid at the death of the assured, the policy was void. A demand for payment after the maturity of the renewal is not a waiver of the breach of condition so as to keep the policy in force: McGeachie v. North American, 23 S. C. R. 148. See Frank v. Sun Life, 23 S. C. R. 152, in which case the policy did not contain a condition that it was to be void if the premiums were not paid. The premium notes did so provide, and the insured died when one note was overdue and unpaid. In Manufacturers' Life v. Gordon, 20 A. R. 309, the Court applied above case of McGeachie v. North American, and declined to continue 'lability on a policy beyond default in payment of a premium note; proceedings on the note were no waiver of the default. Effect of the company's technical triviality to escape payment: Whitehorn v. Can. Guardian Life (1909), 14 O. W. R. 804, 19 O. L. R. 535. The failure of a member of a fraternal society to comply with the conditions of the constitution, even if arising from his insanity, and his subsequent suspension for non-payment of dues are funda- mental objections to any right to recover under his certificate of insurance: McCuaig v. /. 0. 0. F. (1909), 14 O. W. R. 935, 19 O. L. R. 6 Lapse of policy-revival by subsequent payment: Seery v. Fed- eral Life, 5 E. L. R. 406. A person who applies for and receives a policy of life insurance and gives his promissory note for the amount of the first premium, but refuses to pay and returns the policy, is liable on the note though the policy becomes void by reason of the non-payment of the note: J//r.s-. Life Ass. v. Roves, 5 W. L. R. 405, 16 Man. L. R. 540; Royal Victoria Life Co. v. Richards, 31 O. R. 4S3, distinguished. (2) Apportionment or Disposal of Policy. A bequest of a life policy to the lestator's wife is a valid declara- tion of trust within the meaning of R. S. O. c 136, s. 5: McGibbon v. Frcgcv, 21 A. It. 87. The Act of 1896 covers the decision in this . and in those of Re Lynn, 20 O. R. 475, and Beam v. Mcrncr, 24 O. R. 189. See also Re Cameron, 21 O. R. 634, to same effect. Re Grant, 26 O. R. 130, 485, is superseded by above Act. Even under the amending Act the insured has only a limited power to vary the policy or declaration of apportionment. While he may vary he can- not destroy the trust created by the policy: Neilson v. Trusts Cor- i. hi. INSURANCE. poration, -21 < >. R. 520; Mingeaud v. Packer, 19 A. K. 290; Scott v. Hcott, 20 O. R. 313. A contract for tin- surrender of a life policy, unlike a contracl for life insurance, is not uberrima fidei: Potts v. Temperance d General, 23 <>. R. 7.".. A man insured his life in f-c of his wife S., S. died and the husband married again, and died 1 ing a widow ami children without havin the direction as to the policy. The provision for payment lapsed, and the poli< belonged to the personal esiate of the husband : /.'<■ Eaton, 2.'i O. II. 593. The interest of a wife in a policy effected by her husband on his own lii I by him to be for her benefit under the Act is her separate esiate, and may in her husband's lifetime be assigned by her, subject to the powers conferred on him by the Act: Graham y. Canada Life, 24 <>. R. 607. Where an insurance was effe< the il ■ -son for the benefit <<\' her father, brothers, an,: ters, the plaintiffs, the insured, could not by any act of hers deprive them of (he int( i d in them: Dolen v. Metropolitan Life, 20 O. R. "IT. A contracl of life insurance is complete on delivery of the policy to the insured, and payment of the first premium. Wl the insured beiriix able to read has had ample opportunity to examine the policy, and not being misled by the company as to its terms, nor ■1 not to read it, has neglected to do so he cannot, after pay- ing the premium, lie heard to say that it did not contain the I of the con : Provident Savings !.i;<- Assur. Soc. v. ifowat, 32 S. ('. R. 147. If the beneficiary of a life insurance policy has no interest in the life of the insured, has effected the insurance for his own benefit, and pays all the premiums himself, the policy is jering policy and void under 14 Geo. III., c. 48, s. 1 (Imp.i ; R. S. O. T^'.>7, c. 339, s. 1. The Act applies to an endowmei- well as to an all lif In an action by tne company for can- cellation of the policy under said Act a return of the premiums paid will not be made a condition of obtaining cancellation. Davies and Mill*. ./•/.. dissenting. Brophy v. North American Life Assurance ro., 32 S. C. It. 261. A life insurance policy (not coming within the Act respecting Life Insurance for the benefit of Wives and Children') and the money to ' lue under it. belong, the moment it is issued to rson named in it as beneficiary. There is no power in the in- sured to transfer to anj rson than the beneficiary. Winn the beneficiary dies the right to the money passes to the pen sentative of the beneficiary not to the insured or his repre- sentative: Re McGregor, 30 W. I.. R. 435, 18 .Man. L. R. Wiclcstccd v. Munro, 13 A. K. 486, said to depend on Bpe< ial Ontario it ion. A policy may be made payable to a person or beneficiary v is without insurable interest in the life of the insured: Re '■■ ut sup; N. A. Lif ' v. Vraigen, supra, followed. 240 m TIONS ')\ POLICI1 i. Re-apportionment — provision in will not operating as: Boyne v. Boyne, 5 E. L. R. 84, 4 N. B. Eq. 48. See also In re Anderson's Estate, 3 W. L. R. 127, 16 Man. L. R. 177. Identification of policy no! sufficient. Extrinsic evidence not per- sible to prove that testator must have referred to it because he had no other policies: In re Cochrane and A. O. U. W., 11 O. W. R. 956, 16 O. L. R. 328. Transfer to beneficiary who is also a creditor upheld: Re Kemp; Johnson v. A. 0. V. W., 11 O. W. R. 91, 15 O. L. R. 339, BENEFIT SOCIETIES. A certificate of a benevolent society was payable on death, half to the father and half to the mother of the beneficiary. An incomplete transfer to wife mariied subsequently not upheld: Sim- mons v. Simmons, 24 <). R. 662. Where the constitution of a benevo- lent society provides that beneficiary certificates may be granted to persons who take a certain degree, all the steps laid down in the constitution in connection with the taking of that degree must be complied with before any beneficiary certificate can be legally issued. Death before the ceremony of initiation makes the certificate not enforceable: Devins v. Royal Templars, 20 O. R. 259. A member of a benefit society was struck off on an enquiry improperly con- ducted. His executor was held entitled to recover: Gravel v. L'lJnion St. Thomas. 24 O. It. 1. EMPLOYERS' LIABILITY POLICIES. In the nature of guarantee contract. Upon the true construction of sub-section 2 of section 33 of the Ontario Insurance Corporations Act, 1892, the contract could not be avoided by reason of misstate- ments in the application therefor, because a stipulation on the face of the contract providing for the avoidance thereof for such mis- statements was not in stated terms limited to cases in which such mis- statements were material to the contract: London West v. London Guarantee, 26 O. R. 520. On a policy to indemnify on condition that the guarantor company's solicitor managed the proceedings, an offer by plaintiff the day before trial to hand over conduct to such soli- citors not sufficient: Wythe v. Manufacturers, 20 O. II. 153. Employment of child under fourteen years old without, know- ledge of insured, latter held entitled to recover against company: Morton v. Ontario Ace. Ins. Co. (1009), 14 O. W. R. 1010, 1 O. W. N. 199. Neglect of insured to supervise employee and to pursue remedies may deprive of indemnity: St. Edouard School. &c, v. Employers' Liability Ass. Corp., Q. R. 16 K. B. 402. See also Dominion Paring and Contracting Co. v. Employers' Liability, 5 O. W. It. 400. CO "I Ai I iM.H.'l I i I 241 Fidelity bonds are guarantees. 6 Crown Bank v. London Guar- antee and Accident Co., 12 O. W. R. 349, IT 0. L. R. 95. As to withholding from surety information: Chicago lif< Co. v. Dwm 10 O. W. R. 42. r ,. TION OX CONTRACT OF AFFREIGHTMENT. Lies by or against :i shipowner, whether ship be general or Contract need not be under seal. Ship Owner v. Charterer or: Merchant. In case of a general ship, the bill of lading. In case of a chartered ship, the charter party is th» proof of the contract. A bill <>f lading is a receipt for the goods, with an obligation to transport the e R. S. C. c. 118, an Act respecting Hills of Lading, is as follows: 2. This Act may be cited as the Bills of Lading Every consignee of goods named in a bill of lading, and every endorsee of a bill of lading to whom the property in the goods therein mentioned passes upon or by reason of such consignment or endorse- ment, shall have and be vested with all such rights of action and ue subject to all such liabilities in respect of such goods, as if the contract contained in the bill of lading had been made with hi; 3. Nothing in this Act contained shall prejudice or affect, — (a) any right of stoppage in transitu; or (b) any right of an unpaid vendor under the Civil Code Lower Canada ; or (c) any right to claim freight against the original shipper or owner, or (rf) any liability of the consignee or endorsee by reason or in consequence of his being such consignee or endorsee, or of his i. , 4 of the goods by reason or in consequence of such consignme>, >i endorsement. 4. Every bill of lading in the hands of a consignee or end>. for valuable consideration, representing goods to have been shi •n board a vessel or train, shall be conclusive evidence of s ich shipment as against the master or other person signing the - notwithstanding that such goods, or some part thereof, may not have keen so shipped, unless such holder of the bill of lading has actual notice, at the time of receiving the same, that the goods had not iu 1 242 CONTRACT OF AFFREIGHTMENT. fad been laden on hoard, or unless such bill of lading has a stipula- tion to the contrary: Provided that the master or other person so signing may exonerate himself in respect of such misrepresentation by showing that it was caused without any default on his part, and wholly by the fault of tje shipper or of the holder or of some person under whom the holder claims. Ont. S ats. 1!)1<), chap. 63, (the Mercantile Amendment Act) in ■ 7 contains identical provisions with the above (except 2b). Section 3 of the Bills of Lading Act, 1855, does not operate to make a bill of lading conclusive as to the statement of marks upon the goods shipped, when those marks do not affect or denote substance, quality or commercial value: Parsons v. New Zealand shipping Co., 09 L. J. Q. B. 419; (1900) 1 Q. B. 714; 82 L. T. 327; 9 Asp. M. C. 33 ; 5 Com. Cas. 179. A charter party commonly contains clauses — On part of shipowner for seaworthiness, receipt and delivery of cargo, and performance of voyage, with an exception of certain perils. On part of freighter, to load in a given time and to pay freight and demurrage. The master of the ship is agent of the owners, and can sue and be sued in his own name, and can sign a charter party or bill of lading in his own name and bind owners. ]n ordinary course consignor sends bills of lading and bills of exchange, thus transferring property and possession of goods con- signed to consignee. Where sent to agent of consignor, then property does not pass until consignee accepts bill of exchange. The right of suing upon a contract under a bill of lading follows legal title to the goods as against the indorser : Dracachi v. Anglo- American Nav. Co., L. R. 3 O. P. 190. It is the charterer's duty to present for the master's signature such a bill of lading as is not inconsistent with and not to the prejudice of the charter party: Krugcr v. Moel Tryvan Ship Co., 7o L. J. K. B. 985; (1907) A. C. 272; 97 L. T. 143; 13 Com. Cas. 1 ; lo Asp. M. C. 405; 23 T. L. R. 077. The signature of a bill of lading by the charterers instead of by the master is binding and sufficient: Knutsford 8.S. v. Tillmanns (1908), A. C. 406. The ordinary term "all other conditions as per charter party" in a bill of lading does not incorporate as against a person who (not the shipper) acquires title under the bill of lading, a clause in the charter party relieving the shipowner from the con- signees in regard to the carriage of his goods, of the negligence of his servants: The Draupner (1909), P. 219. MEBCHANT V. SHIPOM NEB. 2 18 In an action for not loading, the plaintiff must prove Lis own compliance with warranties or conditions. The description of a ship in a charter party is a warranty, but a statement of tonne e is not. The merchant undertakes to load and unload within a certain number of days, called Iny days, with liberty to delay the ship for a sj Bed period on payment of a daily sum, which, as well as the delay itself, is called demurrage. If the charter party contains a fixed number of demurrage days as well as lay days, and the ship is, by fault of th int, delayed beyond them both, that is called detention, and is to be compensated for by damages. When no de- murrage days ar< mentioned, all detention beyond the lay days is demurrage: see Lord v. Davidson, 13 S. C. R. 166. Sundays are in- cluded in days to be allowed for unless expressly excluded: Gibbons v. lichaels Bay, 7 (). It. 74<;. Freight is regulated by the contract, or, if none, by a quantum meruit; if part accepted, a contract to pay pro rata may be inferred. of damages for not loading a cargo is the amount of freight which should have been carried, deducting expenses and any profit earned during the time covered by the charter: Smith v. M (hiire, 3 II. & X. 554. In addition to his remedy by action, the shipowner has a lien on goods for freight. If it appears on the bill of lading that freight has been paid, the owner is estopped from claiming it: Howard v. Tucker, 1 B. & A. 712. There are certain implied contracts on part of shippers, such as not to put on board without notice dangerous or corrosive matter; on pa:- owner, that the vessel be fit: Brass v. Maitland. & B. 470. An action by shipowner for damages by destruction of vessel: Thompson v. Fowler, 23 O. K. f.44. MERCHANT v. MASTER OR SHIPOWNER. Master as well as owner is liable as a common carrier. See post, Actions Against Carriers. Same common law exceptions as land carrier and as mentioned in bill of lading. As to these latter, the rausa causans, not causa proximo, is to be looked to: see Hamilton v. Pandorf, 12 App. ('as. 518. The plaintiff mnst prove readiness and willingness to ship: McKenzie v. Dancey, 12 A. It. 319. There are certain implied contracts on the part of the shipowner or master. The master impliedly contracts that his vessel shall be fit for the purpose of carrying the goods. She must tie : ' seaworthy 24+ CONTRACT 01' AFFREIGHTMENT. when she starts on her voyage. As lo damages where contract broken, see McEwan v. McLeod, 9 A. R. 239. Where there is no stipulation as to time the master must sail in a reasonable time, and proceed without deviation to the destined port; otherwise lie will be liable to the plainliff for any loss occa- sioned by the delay ; or for any loss, whether by perils of the sea or otherwise, occurring during the deviation, unless the defendant can prove that the loss must have happened had there been no deviation. Deviation is justifiable to save life, but not merely to save prop- erty: Scaramanga v. Stamp, 5 C. P. D. 295. The master is bound to deliver to consignee or order of shipper on production of bill of lading and payment of freight and other lawful charges. What is a sufficient delivery depends upon the contract or upon the custom and usage of the port. Mere delivery at a wharf, and then leaving goods without notifying the arrival to the con- signee, is not sufficient, and the responsibility continues until actual delivery to a person appointed to receive, or something equivalent to it: lfatfly v. Merchants' Despatch, 12 A. R. 201. Where a ship deviates from the chartered voyage the shipowner loses the protection of the exceptions from liability contained in the charter party. In such a case the shipowner is in the position of a common carrier, and although as such he is not responsible for damage from the nature of the thing carried he must not aggravate the risk by breach of contract : Internationale Guano, dc, v. Mac- andrcic (1909), 2 K. P>. 360. Effect of deviation on exemptions in bill of lading: Thorley v. Orchis S. X. Co. (1907), 1 K. B. 660. Seaworthiness of the ship at some time censes to be a condition of the contract and becomes only a warranty. A breach thereafter affords damages but does not make the shipowner a common carrier and deprive him of the benefit of exceptions in the contract, or enable the goods owner to recover for damage to goods without proving thar it was caused by unseaworthiness: The Europa (1908), P. 84. As to evidence of unseaworthiness see Connolly v. Grenier, 42 S. C. R. 242. if by consignee's own delay discharging has been thrown into a strike period he cannot rely on clause in charter party which ex- cludes delays caused by strikes from lay days: Elswick .V. 8. Co. v. Moutaldi M!)07), 1 K. P.. 626. The law implies an obligation to discharge with reasonable dili- gence when- the charter party is silent on that subject: Van Buskirk v. North River Lumber Co., -10 X. S. R. 532. Where by tho lerms of a charter party there is no fixed time within which the charterer has agreed to load a ship, the law implies upon the charterer an obligation to load within a reasonable time, and that obligation is performed if he loads within a time which is reasonable under the circumstances existing when the agreement SHIPOWNEB V. OH \i,"i ■; BEB. - 15 mast be performed, provided thai Buch circumstances, in so far as they involve delay, are aol caused or contributed to by the char- terers: Ardan Steamship Co. v. Weir, <', F. 2'.t4. In a charter party, in the of qualification, the under- taking of the merchanl to furnish a carj • i olute, and the mere existence of circumstances, beyond the control of the shipper, which make it impracticable for him to have his cargo ready will not relieve him from paying damages for breach of his obligation: Ardan Steam- ship Co. v. Weir, 7-1 I.. .1. IV C. 143; (1905) A. <\ 501; 03 L. T. 559; 11 Com. Cas. 26; 10 Asp. M. C. 135: 21 T. L. R. 723. SHIPOWNER v. CHARTERER OR MERCHANT. In this action the shipowner sues the charterer for not loading, or for demurrage, or for freight. A shipowner may sue shipper for contributions to general average. As to general average see under Action on Marine Policy. When the vendor of goous to secure payment has consigned them to himself at the p., its of shipment, and taken from the carriers bills of lading in his own name, and afterwards sent these to the pur- chaser without endorsing them and without completing the delivery of the goods, he alone has power to dispose of these bills of lading. and the purchaser cannot lawfully assign them to a bank to secure advances nor pledge or otherwise give title to them: Ontario Bank v. Gosselin, Q. R. 14 K. P.. 1. Evidence of Shipment — Owners — Consignees. — 33 Vict. c. 19, s. 3 (O.), making a bill of lading conclusive evidence of the shipment of goods as represented therein, does not apply to cases between •isters of vessels and owners of goods, but only between masters and consignees or indorsees for value: Allen v. Chisholm, 33 T". ( '. R. 237. Bottomry Bond— Essentials of — P.roker's Commissions. — The hypothecation of a ship is only justified when it is done to secure amounts due for necessary repairs to enable the ship to proceed with her voyage, or for necessaries, or for provisions required for the same purpose. Furthermore in order to enable I or to benefit by the hypothecation the following elements must be present in the transaction: — (a) The repairs must be performed and the necessaries or provisions supplied on the express condition that the claim is to be secured by a bond, (b) There must be a total absence of personal credit on the part of the owner, or the master, (c) Be- fore pledging the ship the master should, if it was at all pos to do so. have communicated with the owner, and (d) There musl be sufficient cash or credit available to the master to pay the amount of the indebtedness so incurred. (2) A master gave a bottomry bond on his ship for repairs executed some time previous to the Vi 2i6 CONTRACT OF AFFREIGHTMENT. he was then prosecuting and which wore done entirely on his personal credit at the time and upon the distinct understanding that he would not be required to pay for them until his return from another voyage. It also appeared that the master had not communicated with the owners before entering into the bond, although means of communica- tion were open to him, and it was moreover shown that the ship had enough credit at the place whore the bond was made to pay the whole amount of the claim: — Held, that the bond was void. (3) A ship-broker's commissions cannot be the subject of a bottomry bond: Christian v. The " St. Joseph," 3 Ex. C. R. 344. A stipulation in a bottomry bond, providing that, in the event of the ship in the course of the voyage putting into any port of refuge to repair, all moneys for the payment of which the ship, &c, has been pledged shall forthwith become due and payable, does not invalidate the bond provided that a maritime risk is in the contempla- tion of the parties: The Haabet, 68 L. J. P. 121; (1899) P. 295; si ; . T. 463; 48 W. R. 22:!; 8 Asp. M. C. 605. A shipping agent cannot bind his principal by receipt of a bill of lading atter the vessel containing the goods shipped has sailed, and the bill of lading so received is not a record of the terms on which the goods are shipped. Where a shipper accepts what purports to be a full bill of lading under the circumstances which would lead uim to infer that it forms a record of the contract of shipment, he cannot usually in the absence of fraud or mistake escape from its binding operation merely upon the ground that he did not read it, but that conclusion does not follow where the document is given out of the usual course of business, and seeks to vary terms of a prior mutual assent: ?\'orth- West Transportation Co. v. McKenzie, 25 S. C. R. 38. Where a vessel is detained by the charterers beyond the agreed time for loading, and is lost in a storm during such detention, the loss of the vessel is too remote a consequence of the detention to form the subject of an action against the charterers: Tolin v. Symonds, et ah, 2 Old. 141 (N.S.). The owner of a wrecked vessel is not hound to defray the return passage of the seamen. The transfer of the materials of a wrecked vessel by the master for that purpose held not to change the property in the goods: Melancon v. Cotneau, James DT'.i (N.S.). The fact of a master being also a part owner dors not affect his right to recover against the vessel for wages due him: The iura, Y. A. i >. 54 (N.S.). The Bella Mvdge, Y. A. P. 222 (N.S.) Moral necessity is sufficient to justify a master in selling a shipwrecked vessel, and the existence of such necessity is a question of fact for the jury: Orange et al v. McKay, 1 Old. 444 -'.). Where the managing owner and the master of a ship order necessaries for the ship on credit the owners are liable. The certifi- LIABILl i i 01 m \~ 247 Asp. M. C. 606. The registered owner of a ship who has supplied necessaries for the ship, has a claim on the ship for repayment paramount to the right of purchasers to deliverj nip: Foo>in Tai v. Buchheister (j.908), A. C. 458. Master personally liable but given lien on ship: The Cairo, 99 I.. T. !M!>. Goods were not supplied on the credit of the ship but were charged to charterers. Held, no lien for necessaries could be asserted against the ship: Upson-Walton Co. v. "Brian Boru," 11 Ex. C. R. 109. The owner may lawfully stipulate for immunity from liability for thefts committed on board his ship, even by the captain or the crew. When the damage of which the shipper or consignor complains falls apparently within the scope of a stipulation against liability in the bill of lading, the plaintiff must prove some default on the part of the carrier personally to entitle him to recover: Mathys v. Man- chester Liners, Q. R. 25 S. U. 426. The signature of a bill of lading by the charterers instead of by the master is binding and sufficient: Knutsford v. Tillmanns, 77 L. J. K. B. !>77; (1908) A. C. 406; 99 L. T. o99 : 1?, Com. Oas. 334; 24 T. L. If. 786. At the time of loading there is an absolute warranty of the shipowner, who has agreed to take a particular cargo, that his ship is fit to receive the cargo, but this warranty is not a continuing warranty, and defaults occurring after the period of loading are not breaches of this warranty: }[cFaddcn v. Blue Star Line, 74 L. J. K. B. 423; (1905) 1 K. R. 697; 93 I.. T. 52: 53 W. R. 576 ; 10 Com. Cas. 123; 10 Asp. M. C. 55; 21 T. L. R. 345. A shipowner is entitled to limit his liability in respect of the loss of passengers' personal effects: The Stella (No. 1 ) , 81 L. T. 235: 8 Asp. M. C. 605. A contract to tow a vessel for a fixed sum from one place to another, the complete performance of which becomes impossible through no fault of either party, is an indivisible contract, and the owners of a tug rendering towage services under such contract are not entitled to be paid pro rata, or any sum for the towage actually performed: The Madras; 67 L. J. P. 53; (1898) P. 90; 78 T.. T. 325; 8 Asp. M. C. 397. 248 ACTION ON GUARANTEE. The report by the master of a ship to her owner is not sible as evidence against the owner of the facts contained in it : The Solway (54 L. J. P. 82: 10 P. D. 137), disapproved: Admiralty commissioners v. Aberdeen Steam Trawling Co. (1909), 8. C. 335. The master of a vessel is personally liable on a bill of exchange drawn by him upon the owners in payment of necessaries ordered by him, for which he purports by the terms of the bill to hold his vessel, owners, and freighl responsible. The Ripon City (66 L. J. P. 110; (1897), P. 226), followed: Ceylon Coaling Co. v. Goodrich, 73 L. J. P. 104: (1904). P. 319: 91 L. T. 151. It is sufficient to discharge the owner of a vessel conveying goods from port to port from liability for non-delivery, to shew that the goods were delivered by the master at the port to which they were consigned and notice given during the usual business hours to the consignee : McKay v. Lockhart, 4 O. S. 407. ACTION ON GUARANTEE. A guarantee is a contract to answer for the payment of a debt or performance of a duty by another person. A contract of suretyship arises also by the law merchant between drawer and indorsee, and between indorser and subsequent holders. A question often arises as to whether the guarantee is confined to one transaction and is at an end when credit has once beea given to the amount guaranteed, or whether it continues in respect to credit given or debts contracted from time to time. The tendency of the Courts is now to construe guarantees as con- tinuing until revoked. It is generally a question of intention. Plaintiff must prove default of principal debtor against which he has been guaranteed. Admissions made by prin- cipal debtor, or a judgment or award obtained against him by plaintiff, are not evidence against the surety. A surety against whom judgment has been obtained by the prin- cipal debtor for the full amount of the guarantee, but who has paid nothing in respect thereof, can maintain an action against a co-surety to compel him to contribute towards the common liability: Wolmers Hansen v. Gulliek (1893). 2 Ch. 514. DEFENCE. By the Statute of Frauds, 29 Car. II., c. 3, s. 4; R. S. O. c. 334, s. 5, no action can be brought "upon any special promise to answer for the debt, default or miscarriages of another person unless the agreement upon which such action shall be brought, or some mem- orandum or note thereof, shall be in writing, and signed by the party A< 1 [ON ON (il Al; w i 249 th, or some other person thereunto by him lawfully authorized." By R. S. O. 1897, c. 140, s. 8, the consid ration need not appeal in writing. It is simply a promise to pay the debt of another which is valid enough as far as the consideration is concerned but is not enforce- able b it put into writing: Ghater v. Beckett, 7 I. K. 201; v. Dinnick, 27 O. R. 2,85; Harburg Indian Rubber Co. \ Martin (1902), 1 K. B. 778; Bailey v. Gillies, 4 0. I.. R. 182, 190: Young v. Milne, 1 (>. W. N. 4G0. Giving a guarantee for a fixed amount does not prevent the in- curring of a d< bl beyond thai unless the contrary is clearly expressed: Woods v. Cobalt, 12 O. W. R. 1135. A continuing guaranty under seal, where the consideration is given once for all, it is not determined by the death of the guarantor, uor by the fact that his death has come to the knowledge of the person to whom the guaranty is given. Such a determined by the guarantor or his executors upon notice, unless there by an expressed stipulation to that effect: Crate, In re; Bal- four v. crave, 71 L. J. Ch. 358; (1902), 1 Ch. 733; 86 L. T. 144. Liability of es ate of guarantor considered: Union Bank of Can- ada v. Clark, 12 O. W. It. 582. 7n construing correspondence which it is alleged contains a guarantee and which is ambiguous the same principles of construc- tion apply as prevail in any other contract, and the documents should be construed so as nut to render the act of the parties void: Laird v. Adomt, 7 W. L. R. 881. As a written memorandum of an oral guarantee is required only for the purpose of evidence, a letter or other writing subsequently given by the guarantor, sufficiently -hewing the terms of his under- taking, will suffice. A letter shewing the terms written by the guarantor partly on his own behalf, and partly on behalf of a firm of debtors, and signed by him in the firm name and in his own name for them per proa, is sufficient to bind him : Thomson v. Eede, 22 A. R. 105. A promise made by a third person to a creditor to pay or to see paid the debt due to him by his debtor, whether such promise is absolute or conditional, is the promise to answer for the debt of another, and is within s. 4 of the Statute of Frauds. The plaintiff was the holder of a promissory note of an incorporated company, of which the defendant was president, and was pressing for payment * For Fidelity Bonds, see under Contract of Insurance Employ- ers' Liability Policies. 250 ACTION OX GUARANTEE. when the defendant orally promised to see him paid if he would forbear to sue, and would renew: Held, that this was not a promise of indemnity, but of guarantee, and therefore required by s. 4 of the Statute of Frauds to be in writing. Guild d Co. v. Conrad, 1894, 2 Q. B. 885, distinguished: Beattie v. Dinnick, 27 O. R. 285. Where a creditor gives his debtor an extension of time for pay- ment, a formal agreement is not required to reserve his rights against a surety, but such reservation may be made out from what took place when the extension was given : WyJce v. Rogers, 1 DeG. M. & G. 408, followed: Gorman v. Dixon, 26 S. C. R. 87. The plaintiff having sued one of two contractors, the other being out of the jurisdiction, and having recovered judgment against him, cannot afterwards sue the other: Harris v. Dunn, 18 I I. C. R. 352. The surety may rely on the concealment of material particulars by the principal at the time the contract was made. On the other hand, the creditor is not bound to communicate every circumstance calculated to influence the discretion of the surety: Non-disclosure — what amounts to, discussed : Meaford v. Lang, 20 O. R, 541. Any alteration by a binding agreement in the relative position of the creditor and principal debtor, whereby the latter is released, or the remedy against him is suspended, or the risk of the surety varied without the surety's assent, will be a discharge of the guarantee: Crathern v. Bell, 45 U. C R. 473; Richard v. Stillwell, 8 O. R. 511. On the effect of a creditor releasing some of his security: MoUon$ Bank v. Eeilig, 26 O. R. 270. When a creditor wastes or deals im- properly with a security the surety is discharged, but only pro tanto : Ward v. National Bank of New Zealand, 8 App. Cas. 766; Taylor v. Bank of New South Wales, 11 App. Cas. 602; see a complete release, Alteon v. McDonald, 20 A. R. 695. A bond conditioned for delivery up by the principal on demand requires a personal demand: a demand on his personal representatives is insufficient; Port Elgin v. Eby, 26 O. R. 73. A new agreement between the debtor and creditor, extending the time for payment of the debt and increas- ing the rate of interest, without the consent of the surety, is a ration of the original contract and releases the surety. A provision reserving the rights of the surety is of no avail as regards the stipulation for an increased rate of interest: Bristol, etc. v. Taylor, 24 O. R. 286. Where one of several sureties has been released by the creditor giving time to the principal debtor with the consent of one of the sureties, the latter cannot upon pay- ment of the debt recover contribution from the co-surety: Worthington v. Peck, 24 O. R. 535. Change of official duties: Middlesex v. Small- man, 20 O. R. 4R7. A new agreement between the debtor and creditor extending the time for payment of the debt and increasing the rate of interest, without the consent of the surety, is a material alteration A< TIOH OH '.i LEAK i EE. 25] of the A ad a pkm ision Id such agreement reserving I though effectual .-is regards the extension of time, is idle as regi the stipulation fur an increased rati' of interest, and notv.ithstandi'u- such reservation the surety is discharged: Bristol and Weal «f land Land Co. v. Taylor, l'l < >. K. 286. In an action on a bail bond the defence was that it had been altered after execution, and that it was not in the form required by the statute. Held, affirming ent appealed from (1i> .V S. Rep. 06) that the defendant ha refused to call the attesting witness to the bond, who was their counsel in the case, the defence as t<> the alteration alleged to I the attestation clause could not succeed. Held, also, that the objec- tion as to the form of the bond being merely technical and unmeri- torious, could not be taken fur the first time before this Court : Wood- worth v. Dickie, 14 S. < '. It. 734. "Where certain securities have 1 n assigned as collateral security for the payment of a promissory note of $1,000. which note has been partly paid and a new note given, such securities may be held until the debt is discharged by payment: Wiley V. nedyard, 10 V. R. 182. A person who is surety for another and holds collateral securities is not bound to wait until he has paid the debt of the principal before he assigns such securities, but may do so at any time to the creditor in discharge of his liability: Paton v. Wilkes. h Gr. 252. A creditor may by express reservation preserve his rights against a surety notwithstanding the release of the principal debtor, the transaction in such n case amounting in effect to an agreement not to sue. but if the effect of the transaction between the creditor and the principal debtor is to satisfy and discharge and actually ex- tinguish the debt, there is nothing in respect of which the creditor can reserve any rights against the surety: Tlolliday v. Hogan, 20 A. R. 298. Where an alteration is made in the contract of suretyship, then, unless it is without injury, self-evident that the alteration is unsubstantial, or one which cannot be prejudicial to the surety, the Court will not go into an enquiry or permit the question to he sub- mitted to the jury, but will hold that the surety must be the sole judge as to whether he will remain liable notwithstanding the alter- ation: Citizens' Ins. Co. v. Chixton, 13 (). R. 382. A guarantee should be construed as all other contracts not strictly as asrainst either side, but by collecting the real intention of the parties from the instru- ment and the surrounding circumstances, taking the words in their ordinary sense unless by the known usage of trade they have acquired a peculiar meaning: Kaatner v. Winstanley, 20 C. i . C. P. 101 . A guarantee that n promissory i by another will be paid at maturity is within section 4 of the statute, and therefore invalid un- less in writing: Wambold v. Foote, 2 A. R. 579. Where the engage- ment of a surety is a contract and nol a bare authority it is not usually revoked by his death, and his estate remains liable to the name A.CTION ON GUARANTEE. extent as he would have been if he had lived: Exchange Bank of Canada v. Springer, Exchange Hank of Canada v. Burns, 7 O. R. 309, 13 A. R. 390. See S. C, 14 S. C. R. 710. A., the holder of a bond made by B., C. and 1>.. the latter being sureties for B., when an instalment on the bond became due without the knowledge of C. and i»., took B.'s notes to himself, which he indorsed and discounted at a bank applying the proceeds upon the instalment and interest. Upon maturity of the notes he retired them, and brought this action on the bond. Upon an equitable plea : Held, that the sureties were dis- charged, and a verdict having been found against them a new trial was granted: Hooker v. Gamble, 13 U. C. C. P. 462. A person about to become surety for another should be informed of all circumstances which may affect his suretyship, and if they are intentionally con- cealed by the party for whose benefit the security is given, the surety may have the bond delivered up to be cancelled : Cashin v. Perth, 7 Gr. 340. A surety cannot get rid of his liability on the ground of having become surety in ignorance of material facts un- less he can shew that information was fraudulently withheld from him: Township of East Zorra v. Douglas, 17 Gr. 462. A covenant not to sue entered into by a creditor with the principal debtor, with- out the surety's consent, but reserving all remedies by the creditor against others, does not discharge such surety. An assignment by the principal for the benefit of creditors generally, which contains a clause reserving all rights and remedies against third parties, but releasing the assignor from his liability, operates only as a covenant not to sue, and not as a release: Hall v. Thompson, 9 U. C. C. P. 257. The acceptance by a creditor of part of his demand against his debtor and agreeing not to sue him, wi'h a reservation of the creditor's rights against a surety of such debtor, will not discharge the surety. Where, therefore, the holders of a bill received from the acceptor a composi- tion of the debt, and executed a deed to that effect, but expressly reserved their rights against the drawer: Held, that the drawer was not discharged : Wood v. Brett, 9 Gr. 452. Where a creditor gives his debtor an extension of time for payment, a formal agreement is not required to reserve his rights against a surety, but such reserva- tion may be made out from what took place when the extension was given: Wyke v. Rogers, 1 DeG. M. & G. 408, followed: Gorman v. Dixon, 26 S. C. R. 87. The executors of sureties are liable for the defalcation of the principal, committed after the death of their testa- and even after notice given by the executors that they would not be liable : The Quern v. Deeming, 7 T T . C. R. 306. The rule that general payments are appropriated first to the earliest items on the other side of an account does not entitle a surety to claim that a concealed item which from its not being known the debtor had not been charged with, should be deemed to have been satisfied by the moneys, which had from time to time been paid by the debtor, and \ course of his business in books kept under the provision of an Act for that purpose: Weld, evidence against the sureties: Middlefield v. Gould, 10 (J. C. : '. P. 9. A surety holding collateral securities is not bound to wait uotil he has paid the debt before he assigns such securities, but may do so at any time to i In- creditor in discharge of his liability: Paton v. Wilkes, 8 Gr. 252. A surety paying the debt of his principal after arrangements made between the creditor and the principal, which would have had the effect of discharging the surely, cannot recover the money so paid: Geary v. Gore JUoilc, X (Jr. 536. The obligation of a purchaser of mortgaged lands to indemnify his grantor against the personal cov- enant for payment may be assigned even before the institution of an action for the recovery <>f the mortgage debt, and if assigned to a person entitled to recover the debt it gives the assignee a direct right of action against the person liable to pay the same. Affirm- ing Campbell v. Morrison, L'4 A. R. 224; Moloney v. Campbell, 2< S, C. R. 228. ACTION ON ^YARRANTY. The most frequent cases in which an action is brought on h warranty are on the occasion of a sale of goods, and of a representa- tion of authority to enter into a contract on behalf of another person. Warranty on Sale of Chattels. If a man sells goods affirming them to be his own, that amounts to a warranty of ti:le. There is in general no implied warranty of title any more than of quality on the bare sale of a personal chattel: tiorley v. Attenborough, 3 Ex. 500. But see Pevchen v. Imperial Ban)-. 20 O. R. 335. In order to make a seller of personal property liable for a bad title there must he shewn fraud, r express warranty, or an equiva- lent to it by declaration, or conduct, or usage of trade: Bagueley v. uaxclcy, I.. It. 2 C. 1'. 625. As to warranty of quality, the following 'lasses of sales shew in what cases there is an implied warranty of quality: 1. Where the goods are in esse, and may he inspected by the buyer, and there is no fraud on the part of the seller, the maxim caveat < mptor applies, even though the defect is latent and not discoverable on examination, at 254 LOTION ON WAEEANTY. least where the seller is neither the grower nor manufacturer: Parkinson v. Lee, 2 East 314. 2. Where there is a sale of a definite existing chattel, speci6cally described, the actual condition of which may be ascertained by either party, there is no implied warranty: tiarr v. Gibson, 3 M. & W. 390. 3. Where a known, described, and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, described, and defined thing be actually supplied, there is no purpose, so that the buyer necessarily trusts to the judgment or warranty that it shall answer the particular purpose intended by the buyer: Chanter v. Hopkins, 4 M. & W. 399. 4. Wnere a manufac- turer or dealer contracts to supply an article which he manufactures or produces, or in which tie deals, to be applied to a particular skill of the manufacturer or dealer, there is in that case an implied warranty that it shall be reasonably fit for the purpose to which it is to be applied: Broun v. Edgington, 2 M. & Gr. 279. 5. Where a manufacturer undertakes to supply goods manufactured by himself, or in which he deals, but which the vendee has not had the oppor- tunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article : Laing v. Fidgeon, 4 Camp. 169. 6. Where the contract is to supply goods of a specified description, which the buyer has had no opportunity of inspecting, the goods must not only in fact answer the specific description, but must also be merchantable or saleable under that description: Bigge v. Parkin- son, 7 H. & N. 955. And, even although the buyer has inspected the bulk, the goods must answer the specified description : Josling v. Kingsford, 13 C. B.. N. S. 447. When the purchaser of a chattel bought with a warranty keeps it for a considerable time and makes a payment on account, the con- tract must be treated as executed, and any representation or condi- tion as to the quality of the goods must then be regarded as a war- ranty for the breach of which compensation must be sought in dam- ages and not by rescission of the contract: McKenzie v. McMullen, 3 W. L. R. 460, 16 Man. L. It. 11. See Thompson V. Cameron, 2 E. L. R. 192, 41 N S. R. 29; Wright v. Ross, 9 O. W. R. 618. The lessor of a chattel for hire impliedly warrants that it is reasonably fit for the purpose for which it is let: Reynolds v. Rox- burgh, 10 O. R. 649. The general rule is that whatever the vendor represents at the time of the sale of a horse is a warranty, but often there must be discrimination between language merely of expectation, estimate or praise, and that which constitutes a representation or warranty, and the attention of the jury should be called to this distinction, in mguage: Irvine v. Parker, 40 N. S. R. 392. BALE OF i II \ n I ; Where a bors< or other article has been Bold warranted, but i» nor in fact according to the warranty, the purchaser may maintain mii action upon the warranty. In some cases he may rescind the contract and recover the money paid. It is only where there is a condition in the contract authorizing the return of the chattel, or the vendor has received it back and thereby rescinded the contract, or has been guilty of a fraud which avoids the contract, that the purchaser may thus recover back the price. Where the passed an action for breach of warranty will not lie: Frye v. Milligan, 10 O. R. 509; Tomlinson v. Morris, 12 O. R. 311. Where there is a breacn of the warranty and no condition for ling the sale, the vendee must keep the article and rely upon a cross action or counterclaim, or prove the breach in reduction of oamages when sued for the price: Mooers v. (loodcrham & Worts, 14 O. K. 451. See also Ellis v. ibell, 10 A. R. 22C Where there is no written contract and the warranty is men- tioned in the receipt for purchase money, the sale and warranty may he proved by production of receipt. A sale for $40 and upwari within the Statute of Frauds ; but as breach of warranty is not usually discovered till after delivery and acceptance of goods sold, that statute is then complied with, and contract may be proved by oral evidence. The plaintiff must, in general, prove an ex- press warranty. Generally, a representation made at the sale is part of the contract and equal to a warranty. Not if the contract is reduced to writing. The plaintiff must prove unsoundness at time of sale: ■ v. Dij-'i't, 2 Taunt. If a horse has been returned, the plaintiff will be entitled to recover whole piice; if kept, difference between real value and price. Or, plaintiff may sell horse for what ho can pro?, and recover residue of price paid in damages: Caswell v. Coarc, 1 Taunt. 566. Warranty by agent: McMullen v. Williams, . r > A. R. 518. The plaintiff purehased an orchid from the defendant at an auction for twenty guineas with the warranty that it was " Cattleya Acklandiffi alba, only known plant." After two years it flowered, and produced not a white but a purple flower. The value of such a plant is 7s. 6d. In an action for breach of warranty the County Court Judge found as a fact that if the orchid had been an actual alba, it was at the I ale worth £50; but until it shew teal nature there was tin probability that an orchid grower would Live more than twenty guineas for it: Held, upon this finding, th:U judgment must be en red for the plaintiff for £50: Ashworth v. Wells, 7S T. T. 25U ACTION OX WARRANTY. The purchaser of goods subject to a latent defect, sold with a warranty, is not estopped from claiming for breach of warranty, when sued for the price, by having received goods without objection made at the time: Smith v. Archibald. 41 N. S. R. 211. An affirmation made upon the sale or letting of real property as to thf then state of the properly may amount to a warranty, provided the like conditions exist as in the case of a warranty upon the sale of a chattel: De Lassalle v. Guildford, 70 L. J. K. B. 533: 1 1901), 2 K. B. 215; 84 L. T. 549; 4«> W. K. 467. The measure of damages is the difference between the value of the article actually sent to the foreign market, and the value of an article of the quality specified in the bought-note : Weir V. Bissett. 2 Thorn. 178 (N.S.). The measure of damages is the sum which at the time of the sale it would have been necessary to expend in order to remove any defect which constituted a breach of the warranty : Cook v. Thomas, 4 M. L. It. 286 (Man.). A contract amounting to a warranty of goods sold is violated if the articles owing to a secret defect existing at the time of sale afterwards became deteriorated in value: /lardy, et al. v. Fairbanks, et uL, James, 432 (N.S.). In an action for breach of -warranty of title it is neces- sary to prove at the trial that the title was not as war- ranted: Koeter v. Hamilton Provident Society, 10 M. L. R. 374 (Man. i. Under a written contract for the sale by description of a specific article, namely, a gasoline engine with a pump standard, it not being pretended that it did not answer such description, such contract must be taken to cover, as it purported to do, the whole contract between the parties, and parol evidence is not admissible to shew a warranty made prior to the entering of the contract which is inconsistent with the written warranty, as it would be allowing the admission of parol evidence to control, vary, add to, or subtract from the written contract, and statements alleged to have been made by the vendors and acted on by the purchaser to the effect that the engine would pump sufficient water for a certain number of horses and cattle were not such as to constitute a separate and independent collateral agreement and admissible in evidence as such : Northey Mfg. Co. v. Sander 8, 31 O. R. 475. The breach of warranty of a specified chattel does not entitle the purchaser to return the chattel and rescind the contract, and it forms no defence to an action by the seller for the price, but the purchaser on being sued for the price is allowed to give evidence of the breach of warranty in reduction of damages: Mooers v. Oooderham, 14 O. R. 451. A person manufac- turing an article, in his own particular line (such as a portable threshing machine), must be taken impliedly to warrant that the article shall be made in a proper and workmanlike manner and be fit for doing what was expected of it: Grant v. Cadwell, 8 U. C. R. 161. WARRANTS OF aUTHORI! I . 257 w'here an article is supplied for a particular purpose — such as in this case, a furnace to heat the plaintiff's office, and the vendor is to put it up for that object, there is an implied warranty that it will answer: Held, that there was nothing in the defendant's written tender set out in the case to exclude the implied warranty, and that the evidence supported a verdict for the plaintiffs: Bigelow v. Boxall, 38 U. C. R. 47,2. The plaintiff agreed to sell to defendant certain timber, which he was ahout to cut, on land of which he was in occupation. He cut and delivered it at the place agreed on, but the government had a claim upon it for timber dues : Held, although there was no express warranty of title, that there being an executory contract for purchase and sale of a subject, unascertained and after- wards to be conveyed, the purchaser had the right to insist upon a good title ; and that in an action for not accepting he might deduct the amount of dues f«-r which the Crown had a lien. Seville, how- ever, that in all cases of the sale of chattels, the vendor, by selling them as his own, impliedly warrants the title unless the facts shew that he intended only to transfer his interest: Broun v. Gockbwrn, 37 U. C. R. 592. A warranty made after sale without a new considera- tion is not binding: (Irani v. Cadwell, 8 U. C. R. 161. Warranty of Authority. In the case of the second kind of action on warranty, viz., action on the occasion of a representation of authority to enter into a con- tract on behalf of another person, the general principle applies that where A. contracts for B., as agent, he is liable if he is really prin- cipal, or if there is no B. in existence. If A. bona fide but falsely represent to plaintiff that he is authorized by P.. to order goods, and plaintiff fail in action against R. for want of such authority, he may recover value and costs of former action in an action against A. : RandeU v. Trimer. 25 L. J. C. P. 307. In order to enable a plaintiff to maintain an action for dam- ages against a defendant who has purported to siirn a contract on behalf of an alleged principal, the plaintiff must prove a representa- tion by the defendant that he was so to sign when in fact he was not authorized, and that such misrepresentation was believed: Collen V. Wright (27 L. J. Q. B. 215; S E. & 1'.. 647) must be considered as being overruled. Smout v. Ilbcry (12 L. J. Ex. 357: 10 M. & \». 1). Ealbot v. Lens. 70 L. J. Ch. 125: (1001). 1 Ch. 344; B3 L. T. 702; 40 W. R. 214. ACTION ON PROMISE OF MARRIAGE. To maintain this action the plaintiff must prove the contract and promise of the defendant. The promises mnst he mutual, the reciprocity constituting the consideration. —17 258 ACTION OX PROMISE OF MARRIAGE. To prove the breach of the promise, evidence must be given either that the defendant has married another person, so that performance is no longer possible, or that a tender has been made by the plaintiff, followed by a refusal on the part of the defendant. The financial position of the defendant is evidence on the question of damages, and not merely the loss of an establishment in life, but the injury to the plaintiff's feelings may be considered by the jury; and in this respect the measure of damages is different from that which is adopted in the case of other contracts. As to evidence of parties in this action, see the Ontario Evidence Act (1909), c. 43, s. 11, page ante : McLaughlin v. Moore, 10 P. R. 326. As to corroborative evidence, see Costello v. Hunter, 12 O. R. 333; Yarwood v. Hart, 16 O. R. 23; Smith v. Jamieson, 17 O. R. 62(5. Where defendant sets up general immodesty, plaintiff may, in first instance, give general evidence of good character, but not if there is a specific charge of immoral acts : Jones v. James, 18 L. T. N. S. 243. DEFENCE. Immodesty or depraved conduct subsequently discovered : Grant V. Cornock, 16 A. R. 532. To shew general bad character of plain- tiff, evidence of general reputation is admissible : Foulkes v. Sellway, 3 Esp. 236. Material misrepresentation of circumstances. Release by conduct : Reynolds v. Jamieson, 19 O. R. 235. ACTION FOR DOWER. In Ontario, the present Act relating to dower is chap. 39 of the Statutes passed in 1909. Section 19 states that no action of dower shall lie where the dowress has joined in a deed to convey the land or to release her dower therein, though there may have been informality as to the acknowledgment of the deed. In British Columbia the Act respecting dower is B. C. R. S. 1897, c. 63. In New Brunswick, c. 77, C. S. 1903. In Nova Scotia, c. 114. R. S. N. S. 1900. oe. 114 and 169. No arrears of dower are recoverable for more than six years before the commencement of an action to recover them. No action of dower can be brought bin within ten years of the death of the husband of the dowress. And where the dowress has, after the death of her husband, actual possession of the land of which she is dow- able, either alone or with heirs or devisees of her husband: the period of ten years must lie computed from the time that her pos- session as dowress ceased. (See Ont. Stats. 1910. c 34. sees. 26-28 ) ACTION FOR DOWER. 259 Held, thai under Statute 13 Bdw. I. c. 34, the dower right of the wife in the estate of her first husband was uol barred by ner subsequent cohabitation with another, as she acted bona fide, believ- ing ou reasonable grounds thai she was legally entitled to marry again: Phillips v. Phillips, 4 N. B. Eq. 115, 6 B. L. R. 478. Bee Solan v. McAdam, 39 N. 8. it. 380, as to law in Nova Scotia. Ab- sence from province for over twenty years, widow's action barred: Re Foster and Knapton, 13 O. W. R. 170, 507. An action for assignment of dower is not within the Real Property Limitation Acts (Imp.) 1833 and 1S74. but if the dowress does not for more than twelve years claim any of her rights as a dowress the Court may refuse to give her relief on the ground of laches. Marshall v. Smith, 5 Giff. 37. approved on ground of laches only overruled so far as based on Statute of Limitations: Williams v. Thomas (1909), 1 Ch. 713. A dowress has a right to one-third of the rents and profits from her husband's death, and a right to have dower assigned to her, the first right being in no way dependent upon the second. A dowress, therefore, who has claimed and enjoyed the receipt from the heir of one-third of the rents and profits ought not to be prejudiced by rea- son of her not having, during that period, claimed her right to an assignment : Williams v. Thomas, ut sup. Forrest v. Laycock, 18 Chy, 61, is conclusive that where a wife in good faith claims to be entitled to dower and refuses to join in conveyance without a reasonable compensation being made to her, the payment made to her by the purchaser to induce her so to join in the conveyance is valid against the creditors of the husband: McDonald v. Cumin. 1 O. W. N. 389. When- lands mortgaged to acquire a loan have been sold by the mortgagee, the wife of the mortgagor, who has joined in the mort- gage to bar her dower, is entitled to dower out of the surplus, com- puted on what would be the full value of the land if unincumbered. Pratt v. Bunnell, 21 O. R. 1, not followed (so far as the reasoning and dicta therein are opposed to the above decision) : Gemmill v. NelUgan, 20 O. R. 307. Widow can claim dower only in the event of redemption, unless she contributes ratably to the amount of the mortgage incumbrance. '1 he method of arriving at the amount of dower in such cases pointed out: Dobbin v. Dobbin, n (). R. 534. A sale of land for taxes destroys the riuht of the widow of the owner to dower: TomUnson v. If ill. 5 Chy. 231. The dower of the wife is nol barred by the sale in execution of her husband's estate: Walker v. Powers, M. T. 4 Vict. Where the husband is seized as tenant in common, his wife may be endowed: If am v. Ham. 14 U. C. R. 497. 260 ACTION FOR DOWER. A widow is entitled to dower in lands purchased from the Crown by her husband and whereof he died possessed, although no patent issued, and the purchase money had not been all paid. She is also entitled to one-third of the rents and profits for six years before the suit: Craig v. Templeton, 8 Chy. 483. Where a party agrees to convey property he is bound to do so free from dower; or if the wife will not release her dower, then to convey subject thereto, with an abatement in the purchase money: Kcndrew v. She wan, 4 Chy. 578. A wife cannot be endowed of land given and taken in exchange, but has her election to have one or the other : McLellan v. Meggatt, 7 L. C. R. 554. Wife or widow of mortgagee not entitled to dower: Ham v. Ham, 14 C. C. It. 497. Where the annual value of a widow's dower was not large, and she made no demand for it, but resided on the property with her son, the heir, during his life, having no intention of claiming dower, a claim for arrears against his estate after his death was refused: Phillips v. Zimmerman, 18 Chy. 224. The mere fact that at the death of or alienation by the husband, his lands were of no rentable value, is not alone sufficient to dis- entitle the widow to damages if the land has been subsequently made rentable by reason of improvements or otherwise, either by the heir or vendee, as in such a case a r"""' i°n of the rent is attributable to the land: Wallace v. Moore, IS Chy. .">(i0. Held, that the presumption of death arising from continued absence of the defendant's husband, unheard of for seven years, is sufficient to sustain an action of dower as against the objection that lie is still living: Giles v. Morrow, 1 O. R. 527. Under the Devolution of Estates Act, land of an intestate was sold by the administrator, with the approval of the official guradian, and, by consent of the widow, freed from her dower, upon the footing that she was to get out of the proceeds of the sale a sum in gross in lieu of dower. The estate was practically insolvent, and but little was left for the sustenance of the widow and children: Held, that notwithstanding the opposition of creditors, the widow should be allowed a gross sum: Re Rose, 17 P. R. 136. A wife's conveyance of her equitable estate is valid without the husband joining in the conveyance; and the husband having the legal title vested in him, the wife's vendee was held entitled to a decree against the husband for a conveyance: Adams v. Loomis, 22 Chy. 99. ACTION OX AN AWARD. In Ontario the present Act "elating to arbitrations and awards is i bapter •''."> of the statutes passed in 1909; Alberta, 1909, chapter 0: P.ritish Columbia, R. S. 1W>7. chapter 9: Manitoba. R. S. 1891, chap- ACTION ON AWARD. '261 ter 1; Nova Scotia, R. S. 1000, c. 170; Trade Disputes, Ont. R. S. 1807. c. 158; 1002, c. 22. An action on an award is the only way of enforcing it where the submission cannot be made a rule of Court, e.g., parol. The Court has jurisdiction over awards whether or not they are awards to which the provisions of 9 & 10 W. III. c. 15 apply. Smith v. Whitmore, 2 DeG J. & S. 207, followed : Johanneson v. Galbraith. :: W. L. R. 27f,, 10 Man. L. R. 188. Plaintiff must prove submission and award, and per- formance by himself of any conditions precedent put in issue. Where submission is by a Judge's order, which has been made an order of Court, it is sufficiently proved by production of office copy of latter order, but not where submission is by deed or written agreement. It is necessary to prove the submission of all parties to arbitration, for without such proof it does not appear that the arbitrator had competent authority to decide between the parties. If time for making award has been enlarged, and award made within enlarged time, plaintiff must show that enlargement was duly made according to terms of sub- mission, or by consent or under power of statute. If the award be by an umpire, or ny the arbitrators and an umpire, the appointment ot the latter must be proved : Still v. Halford, 4 Campbell 19. Unless the submission requires it, attestation is unnecessary; and in general, therefore, an award may be proved like any other deed or writing, namely, by proof of the arbitrators' handwriting. DEFENCE. Corruption or misconduct of the arbitrators is not matter of defence, at least where application might have been successfully made to the Court to set the award aside. Nor can the award be im- peached on the ground that the decision of the arbitrator has pro- ceeded on a mistake: Johnson v. Durant, 2 R. & A. 925; see Moore v. Buckner, 28 Ch. 606. Suing ou an award will estop a party from denying the authority of the arbitrators: Mack v. Allen, 17 V. C. C. P. 240. " Publication '* of an award signifying its completion so far a- the arbitrator is concerned is made when he executes it in the presence of a witness, or does any other act shewing his final mind upon which he becomes functus officio; and when an award is thus completed an action may be brought upon it forthwith, though the defendant has the right to move againsl it within the proper time after "publication" to the parties; ami a motion by the defendant to set aside the award may go on concurrently with an action to enforce it. Moore v. Buckner. 28 Chy. 600 (mentioned supra), not followed. Interest upon the amount of an award does not begin to run until notice of the award has been given to the defendant: 262 ACTION ON SOLICITOR S BILL. Huyck v. Wilson, IS I'. R. 44. An award may be remitted to arbi- trators for re-consideration and re-determination under the Ontario Statute, though the result of the re-consideration may be to have the award virtually set aside by a different or even contrary decision of the arbitrators. The Court is justified in remitting an award to the arbitrators, if fraud or fraudulent concealment on the part of the persons in whose favour it is made is established, or if new evidence is discovered which by the exercise of a reasonable diligence could not have been discovered before the award was made: Green v. Citizen's Ins. Co., 18 S. C. R. 338. An award in expropriation pro- ceedings under the Railway Act, R. S. C. c. 109, where the arbitrators acted in good faith and fairness 'n considering the value of the prop- erty before the railway passed through it, and its value after the railway had been constructed, and the sum awarded was not so grossly and scandalously inadequate as to shock one's sense of justice, should not be interfered with. Judgment appealed from (M. L. R. 6 Q. B. 385) affirmed : Benning v. Atlantic d N. W. Ry. Co., 20 S. C. R. 177. Senible, that the award was not admitted by the pleadings in this case ; but, held, that it was sufficiently proved by shewing that the defendants paid a portion of the sum awarded, and that their officers had stated in writing the particulars of the award and the sum remaining due on it: Hughes v. Mutual Fire Ins. Co. of District of Newcastle, 98 U. C. R. 387. ' Admission of irrelevant evidence by the arbitrators, if not shewn to have affected amount of award, is no ground of appeal therefrom: Q. M. & 8. Rw. Co. v. Landry, 19 Q. K. B. 82. Arbitrators having taken evidence of custom which was proved not to exist, award set aside: N. W. Rubber Co. v. Huttenbach (1908), 2 K. B. 907. Arbi- trators having acted separation in makirur their award, an objection to a finding so made is fatal : M<1. rod v. Hope d Farmer, 14 B. C. R. 50 ; Be McLeod and Hope. 9 W. L. R. 315. ACTION ON SOLICITOR'S BILL. Acts respecting legal profession : — Alberta, 1907, c. 20 : 1908, c. 20, sec. 29. British Columbia, R. S. 1897, c 24: 1898, c. 8: 1899. c 3; 1901. c. 4; 1902. c. 3. Manitoba, 1888. c 17 and 29; 1889, <•. 26; 1890, c. 2. New Brunswick, C. S. 1903. c. 08. Nova Scotia, U. S. 1900, c. 164; 1901, c. 15, s 8, c. 50. See \l. S. O.. 1897. c. 174. s. 31. As to special circumstances, see s. 34. Payment not to preclude taxation, etc., see s. 49. Plaintiff must prove 1. His retainer as solicitor by the defendant, which may be done either by showing an express retainer, or that the defendant ACTION AGAINST SOLICITOR. 263 I attended at his office and gave directions, <>r in othei ways recognised nis employment. See Re Allison, 12 P. K. (i. 2. That business was done, which may be proved by clerk or other agent who can speak of the existence of the cause or the business in respect of which the charges were made, and can prove the main items. !n an action against an ordinary corporation a retainer under seal must he proved, but not in the case of commercial companies in- corporated by Ad of Parliament. Now an agreement may be made for payment by a gross sum: Ontario Statutes, 1900. c. 28, sections 22 to 41. 3. Delivery of bill, at least one calendar month before com- mencement of action. See Scane v. Duckett, 3 O. R. 370. Tbe bill may be proved by a copy or duplicate original, withont any notice to produce the bill delivered. It is enough to prove that a bill of fees, subscribed or enclosed in a signed letter, was duly delivered, and the defendant may show that it was not a bona fide compliance with the Act. The time within which a client must assert his right as against his solicitor to obtain or in the case of error, to open an account, is not limited to six years or to any other definite period. Hindmarsh. In re (1 Dr. & S. 120) and Mainland v. Upjohn, 58 L. J. Oh. 361: 41 Ch. D. 126) distinguished: Cheese v. Keen, 77 L. J. Ch. 163: (1008) 1 Oh. 24f». DEFENCE. Special defences are: Non-delivery of bill, disputed charges, negli- gence or misconduct of plaintiff, want of certificate, admission, etc., Statute of Limitations. See R. S. O. 1807. c. 147. ss. 2. 24. 27 and 28. It is only after expiration of a year that tbe reference to taxa- tion at request of party chargeable is not grantable of course. As to agency business, if the solicitor ordering it does not ex- pressly say he does not intend to be personally liable, he becomes personally liable. ACTION AGAINST SOLICITOR FOR NEGLIGENCE. In general, a solicitor is liable for ignorance or non-observance of rules of practice: for want of care in preparation of cause for trial, or of attendance thereon with his witnesses: for mismanagement of case so far as so much of the conduct as is usually allotted to solicitors. lie is not answerable for error in judgment upon points of new occurrence, or of nice or doubtful construction, or such as are usual!? 26-4 ACTIONS BY MEDICAL PRACTITIONERS. entrusted to counsel : Godfroy v. Dalton, 6 Ring. 467. See O'Donohue v. Whitty, 2 O. R. 024. Action is maintainable, though damages be only nominal: Godfrey v. Fay, 7 Ring. 413. A solicitor is liable in damages to his client for neglecting to obey instructions to register a judgment, and thereby precluding the client from recovering the amount of his judgment debt: Rett v. Pirn Pong, 18 S. C. R. 290. An agreement by a solicitor to prosecute a claim to judgment at his own expense in consideration of his receiving one-fourth of the amouui which would be recovered, is champertous and void: O'Connor v. Gemmill, 29 O. R. 47, 26 A. R. 27. See Williams v. McDougall, L2 W. L. R. 381. Rut sec page 263, ante. DEFENCE. Statute of Limitations runs from breach of duty complained of. The client having insisted that an arrest be made aft or being advised by solicitor that it would be irregular and illegal failed in action against the solicitor: Kinen v. Hill, 38 N. R. R. 342, 4 E. L. R. 180. A solicitor who advises his client according to the established jurisprudence is not guilty of actionable negligence if the decision upon which he relies is over-ruled : Taylor v. Robertson, 31 S. C. R. 615. ACTIONS RY MEDICAL PRACTITIONERS. The Statutes relating to the Medical Profession are as follows: Alberta, 1906, c. 28. Rritish Columbia. 1898, c. 9 ; 1899, c. 4 ; 1903, c. 4 ; 1904, c. 4 ; 1905, c. 6. Manitoba, R. S. 1902, c. Ill; 1903, c. 23; 1906, c. 43. New Rrunswick, C. S. 1903, c. 73. Nova Scotia, R. S. 1900, c. 103: 1903. c. 63; 1906, c. 21. Ontario, R. S. 1897, c. 176; 1902, c. 12, s. 21 ; 1906, c. 24. Saskatchewan, 1906, c. 28. By R. S. ().. 1897, <-. 17c. s. 40, every person registered under that Act shall be entitled, according to his qualification or qualifica- tions, to practice medicine, surgery, or midwifery, or any of them, as the case may be. in the Province of Ontario, and to demand and recover in any Court, with full costs of suit, reasonable charges for professional aid, advice and visits, and the costs of any medicine or other medical or surgical appliances rendered or supplied by him to his patients. By section 41 of this Act no duly registered member of the College of Physicians and Surgeons of Ontario shall be liable to any action for negligence or malpractice, by reason of professional services \« i [ONS FOR w \' requested or rendered, unless such action !»• commenced with in one year from the date when, in the matter complained of, such profes- sional services terminated. It is now the genera] rule, as recognized in Town v. Archer, 4 O. L. B. 383, thai actions against physicians or surgeons fur mal- practice, where the facts arc u»i 60 much in dispute as the deduc- tions of skilled witnesses upon the method of treatment disclosed, shall be tried without a jury: Hodgins v. Banting, 12 O. L. R. 117. Services, quantum meruit : Gibson v. Mackay, 10 O. W. R. 1081. DEFENCE. If the defendant has received no benefit on account of the plain- tiff's want of skill, the latter cannot recover: Kanncn v. M' Mullen, Peake 59; Stamper \. Rhindress, 41 X. S. R. 45. Procedure under Act against offending medical practitioner: Re Washington, 23 O. R. 299. The contract of the governors of a public hospital with a patient undergoing a surgical operation or examination is only to supply a competent hospital staff and nurses with proper apparatus and appliances. Unless it is 6hewn that they have failed in that duty they are not responsible for injury caused to the patient by the negligence of the hospital staff or nurses in the course of such opera- tion or examination: Hillyer v. St. Bartholemew's Hospital (1909), 2 K. B. 820. ACTIONS FOR WAGES AND WRONGFUL DISMISSAL. The Statutes relating to Masters and Servants are : British Columbia, R. S. 1897, c. 131 ; 1898, c. 31 ; 1899, c. 43 ; 1902, c. 44. Manitoba, R. S. 1902, c. 108; 1906, c. 42. Nova Scotia, R. S. 1900, c. 117. Ontario. L910, c. 73— Wages— 1910. c. 72. Sask., 1907. c. 32. In an action by servant for wages, plaintiff mnit prove a hiring, of which service will be evidence, the length of time of service, and the amount of wages dne. A dismissed servant may, and, if he can, ought to, enter into another service. DEFENCE. Misconduct, previous recovery of damages in action for wrongful dismissal. If good cause for dismissal exists, it is immaterial that at the of dismissal the master did not act or rely upon it. nor did not 266 ACTION FOR WAGES. know of it, and acted upon some other cause in itself insufficient; Mclntyre v. Hockin, 16 A. R. 498. In order that an employee may be discharged without notice, hie conduct must be such as to cause a prejudice to his employer, or to give the latter reasonable cause to fear that he will suffer a prejudice by reason of the acts of the former: Millan v. Dominion Carpet Co., Q. R. 22 S. C. 234. Occupation of house as compensation for services : Coulter v. Coulter, 4 O. W. R. 65. In estimating the damages due to the servant for breach of the contract of hiring, when the action is begun before the expiration of the period of the engagement, the Court must take into account the possibility of death, of incapacity to render the services contracted for, and of another engagement to render the same services which may be obtained before the end of such period : Oregoire v. St. Charles de Bellechasse School Commissioners, Q. R. 29 S. C. 215. Indemnity cannot include compensation either for the injured feelings of the servant or for the loss he may sustain from the fact that the dismissal itself makes it more difficult for him to obtain fresh employment: Addis v. Gramophone Co. (1909), A. C. 488. Where services are performed by a relative or other person upon a mere reliance that the party serving will share his bounty under his will, such services will not support an action as upon an implied assumpsit to pay in money : Whyatt v. Marsh, 4 U. C. R. 485. The presumption against an implied right to remuneration for ser- vices rendered by near relatives arises only when the persons render- ing the services, and those to whom they are rendered, are in effect living together as members of the same household, but even where this is not the case the implied right to remuneration may in the case of near relatives be negatived on very slight grounds. The Court held on the facts on this case tnat the plaintiff, a married woman, who left her own home to nurse her sister, was not entitled to remunera- tion for her services: Mooney v. Grout. O. I.. R. 521. A son working at home upon his father's place would not be entitled to recover for work and labour in the absence of an agreement to that effect : Campbell v. McKerricher, (i O. R. 85. Where brothers or sisters or other near relatives live together as a family, no promise arises by implication to pay for the services rendered or benefits which, as between strangers, would afford evidence of such a promise. Red- mond v. Redmond, 27 U. C. R. 220, followed and approved of : Iler v. Her, 9 O. R. 551. In order to recover upon a quantum meruit there must be a contract, express or implied, to pay something for the services. No such action lies upon volunteer services or on extra work rendered GRATUITOUS SERVICE. 267 by a volunteer already in employment: Fabris v. Sala, 11 W. L. R. 269. Where services have been performed by one person for the benefit and at the request of another, and have been charged to the latter, the fact that a third person has subsequently agreed to pay for suy the person rendering them, will not prevent the latter recovering in an action against the person liable in the first instance unless the subse- quent agreement amounts to a novation : Herod v. Ferguson. 25 O. R. 565. Where a contract on the part of a testator founded upon a valuable and sufficient consideration that he will leave by his will to the other contracting party a sum of money ;is a legacy, is clearly made out. the representatives of the testator may De compelled to make good his obligation: Walker v. Boughner, IS O. R. 448. When a minor enters into a contract for hiring, the wages he earns belong to him and not his parent: Dclcsdernirr v. Burton, 12 Chy. 569. A contract of hiring entered into with a firm by a commercial traveller is put an end to by the death of one of the partners : Burnet v. Hope. 9 O. R. 10. When the hiring is general it is pre- sumed by law to be by the year: Hettinger V. MaeDougall, 9 U. C. C. P. 485. Where services are rendered not on a contract of hiring nor gratuitously, but upon the faith of a promise to leave property by will, which the testator fails to perform, an action may be maintained against bis representatives to recover compensation for the services in the shape of damages for breach of the previous promise: Smith v. McGuoan, 21 A. R. H42. 21 S. C. R. 263. A servant who enters into a contract to devote his entire time and attention to the interests of his master, and to engage in no other business, is liable in damages for the breach of that contract ; but if he does work in a different capacity, and does not use time which sLould be devoted to his master's business, or engage in competitive undertakings, he is not liable to pay to his master the earnings or profits received by him in respect of such work. But no servant can be permitted to retain as against his employer profits acquired by engaging during his term of employment without his master's consent in any business which gives him an interest conflicting with his duty to that employer: Sheppard Publishing Company v. Harkins, 9 O. L. R. 504. A business having been sold, the foreman who was engaged for a year, was retained in bis position by the purchaser. On the ex- piration of his term of service no change was made, and he continued for a month longer at the same salary, hut was then informed that if he desired to remain, his salary would be considerably reduced. Hav- ing refused to accept the reduced salary he was dismissed, and brought an action for damages claiming that his retention for the 268 ACTION FOR WAGES. month was a re-engagement for another year on the same terms, that as it appeared that the foreman knew that the business before the sale had been losing money, and could not be kept going without re- ductions of expenses and salaries; that he had been informed that the contracts with the employees had not been assumed by the pur- chaser; and that upon his own evidence there was no hiring for any definite period, but merely a temporary arrangement until the pur- chaser should have time to consider the changes to be made, the foreman had no claim for damages and his action was rightly dis- missed: Bain v. Anderson, 28 S. C R. 481. Plaintiff sued the defendants, F. and L., for wages due him for work done as a diver in savin.; goods from a wrecked steamer at tu« Island of Anticosti, and also for four-fourteenths of the proceeds of the goods saved, under an agreement to that effect. The defendant F. contested the claim as to the share of the proceeds claimed. In the County Court judgment was given in plaintiff's favour based on what purported to be an adjustment of the salvage account between F. and L. in the previous suit brought to secure a settlement of their accounts. There was no evidence as to who made the paper, or that tue defendant F. knew its contents, and it appeared further that it nad been handed to plaintiff's solicitor who was acting at the time as the solicitor of the defendant L. in connection with the previous suit, without prejudice, and on the understanding that it was not to be made use of in any other suit. A contract to act as master of a vessel " for the season " is sub- ject to the continued existence of the vessel: Ellis v. Midland, 7 A. R. 464. Where a person in the service of another under a yearly hiring is dismissed for cause by his employer during the currency of any one year, he is not entitled to any remuneration for the por- tion of the year that he has served; but if he has been paid any por- tion of such year's salary, the employer is not entitled to recover it back, neither is he entitled to have it applied on account of moneys payable in respect of a previous year's service ; and although the employer on dismissing his employee may have assigned no ground therefor, he is not precluded from afterwards shewing the entire ground for such dismissal : Tibhs V. Wilkes, 23 Chy. 439. When the master has full knowledge of the nature and extent of misconduct on the part of his servant sufficient to justify dismissal, he cannot retain him in his employment and afterwards at some oistant time turn him away for that fault without anything new; and this condonation is subject lo the implied condition of future good conduct, and whenever any new misconduct occurs the old offence may be invoked and may be put in the scale against the offender as cause for dismissal. Condonation is a question of fact for the jury, if in the opinion of the Judge there is any evidence of it to be laid before them. In an action for damages for wrongful dis- DEFENCES. 269 missal tried with a jury, it is for the Judge to say whether the alleged acts are sufficient in law to warrant a dismissal, and for the jury to say whether the alleged facts arc proved to their satisfaction: Mclntyre v. Hockin, 16 A. R. 498. It is good cause for the summary dismissal by a railway company of one of their employees, that he has proved while on duty to have drunk intoxicating liquor with other employees: Marshall v. Central Ontario R. W . Co., 28 O. R. 241. a bookkeeper is engaged for the term of one year, and his employment is continued after the expiration of that time, then- is no presumption that it is to continue for another year absolutely: Uarnwell v. Parry Sound Lumber Co., 24 A. R. 110. Where no time is limited for the duration of a contract of hiring and service, whether or not the hiring is to be considered as one for a year, is a question of fact to be decided upon the circumstances of the case. In an action on an oral agreement made in November for the hiring of plaintiff by defendant for a year, from the 1st December then next: Held, that there could be no recovery for wrongful dismissal within a there being an express agreement in fact no other agreement for a monthly hiring could be implied : Harper v. Da 45 U. C. R. 442. A contract of hiring for a year or more, defeasible within the year, is within section 4 of the Statute of Frauds. The agreement as alleged by the plaintiff was made in February, 18S0, whereby the defendant was to pay him fur his servict s, while he should remain in defendant's employment at the rate of $500 a year for one year, and thereafter at such salary as might be agreed upon; tne plaintiff to enter upon his duties and his salary to commence on the 3rd March then next, and defendant was to be at liberty to determine the employment at the expiration of a month named, otherwise the agreement to remain in full force for a year and for such longer period as might be agreed upon : Held, clearly within the statute: Booth v. Prittie, <> A. R. 080. Profits acquired by the servant or agent in the course of or in connection with his service or agency fall to the master or principal: Jones v. Lindc. British Refrigeration Co., 32 O. K. 191. The proper question to be left to the jury upon a justification of the dismissal for drunkenness would be: "Was the plaintiff so conducting himself that it would have been injurious to the interest of the defendants to have kept him ; did he act in a manner incompatible with the due and faithful discharge of uis duty: did he do anything prejudicial or likely to be prejudicial to the interests or reputation of his master:' McEdwards v. Thr Ogilvie Milling Co.. 4 M. L. R. 1 (Man.). A single disrespectful retort by an employee which has been provoked or called forth by an unbecoming remark of the employer, is not a sufficient ground for dismissal of the employee: Williams v. Hammond, 1(5 Man. L. R. 369. Iness of a servant in the performance of an import- ant part of his duty need net be habitual in order to amount to neg- 270 ACTIONS RELATING TO SALE OF GOODS. ligence justifying his dismissal without notice. A single act of for- getfulness may. under certain circumstances, be sufficient: Baster v. London and County Printing Works, 08 L. J. Q. B. 622; (1899), 1 Q. B. 901 : 80 L. T. T. r >7 ; 17 W. R. 639 ; 63 J. P. 439. Moral character of servant as disclosed by himself unfit for position, justified dismissal: Denham v. Patrick (1910), in O. W. R. 349. Defendants set up custom among land surveyors and assist- ants to terminate their employment at any time without notice. Plaintiff held entitled to recover: Andrew v. Pacific Coast Coal Mines, 12 W. I.. R. 163. Payment, by commission, judgment for plaintiff with reference: JlcDougal v. 1 an Allen i 1009), 14 O. W. R. 173; 19 O. L. R. 351. Ine living was an indefinite one, the service to be paid at a certain rate per day. The presumption was in favour of a yearly living which was not rebutted. Plaintiff entitled to reasonable notice: Gould v. McCrae, 9 O. YV. R. 626; 14 O. L. R. 194. ACTIONS RELATING TO SALE OF GOODS. At common law a sale of personal property is good though the bargain be oral. The contract is good though neither the money be paid or a day expressly named for payment. When the terms are agreed upon and bargain struck and everything done by the seller is complete the contract becomes absolute without payment or de- livery and the property and risk of accident vest in the buyer. Blackstone Comm. II. 447-8). The article must be ascertained and in esse. By the laws of England under a contract for sale of specific ascertained 'nods, the property immediately vests in the buyer, and a right to the price in the seller unless if can be shewn thai: such was not the intention of the parties. If the seller is to do something to the goods sold the property will not be changed until he has done it, or waived his right to do il. There is no distinction between the law of England and the law in force in T'pper Canada in Ibis respect: (Almour v. Supple, 11 Moo. P. C. 551. Held, that where goods and merchandise are sold by weight the contract of sale is not perfect, and the property in the goods remains in the vendor, and they are at his risk until they are weighed or until the buyer is in default to nave them weighed ; and this is so even when the buyer has made ::i examination of the goods and rejected such as were not to his satisfaction. Held, also, that where goods are sold by weight, and the property remains in the posession of the vendor, the vendor becomes in law a depositary, and if the goods while in his possession are damaged through his fault and negligence, he cannot bring action for their value: Hose v. Honnan, 10 S. C. R. 227. - I ATI I . OF FRAUDS. 271 The case lastly referred to is an illustration of the doctrine that if the bargain requires anything further to be done by the seller, as to make the article, or to set apart or ascertain the price of the goods sold by weight, number, measurement, selection or otherwise, the property does not pass until they are in a state fit for delivery: Tenner v. Smith, L. R. 1 C. P. -70. If it is the intention of the parties that the property shall pass, it does pass, though there are acts to be done by the vendor: Turley v. Bates, 2 II. & C. 200. Section !) of the Statute of Frauds, It. S. O. 1897, c. 338 (sec. 10 of 29 Car. II.. c. 13) is as follows:— " No contract for the sale of any goods, wares or merchandises for the price of forty dollars or upwards shall be allowed to be good except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." The Statute of Frauds is found in the several Provinces as follows : — Alberta, 1906, c. 27. British Columbia, 1903, c. 20. Manitoba. R. S. 1902, c. lf>2. (Sales of Goods Act.) New Brunswick, C. S. 1903, c. 140. Nova Scotia, R. S. 1900, c. 141. Ontario, R. S. 1897, c. 338. By section 9 of R. S. O. 1897, c. 146, An Art Respecting Writ- ten Promises and Acknowledgments of Inability, it is provided that section 17 of the Statute of Frauds " shall extend to all contracts for the sale of goods of the value of $40 an( l upwards, notwithstand- ing that the goods may be intended to be delivered at some future time or may not at the time of the contract be actually made, procured or provided or fit or ready for delivery or although some act may be requisite for the making or completing thereof, or ren- dering the same fit for delivery." The Statute of Frauds must be specially pleaded, C. R. 271. The cases on the Statute of Frauds are collected post, under head- ing in Part III.. Defence of Statute of Frauds. The main points to be considered with reference t" the Statute are: — (1) Acceptance and Receipt, "accept and actually receive." Acceptance without a delivery is insufficient. (2) Earnest or part payment. (3) What is a sufficient note. (4) The note or memorandum is sufficient if signed by the party to be charged — need not be signed by both parties. (5) Agency — agent need not be appointed in writing. 272 ACTION FOR NOT M'cKPTING GOODS. ACTION FOR NOT ACCEPTING GOODS. The plaintiff must prove: 1. The contract; 2. The per- formance of all conditions precedent on his part; 3. The refusal to receive; 4. The amount of damage. It is most commonly in this action that the question as to the validity of contract of sale without writing arises. On a contract of sale the obligations of the buyer are : 1. To accept the article sold ; 2. To pay the price. The precise time of the change and vesting of the property and the risk of loss are also questions incidental. In an action for not accepting goods, the difference between the contract price and the market price on the day the contract was broken is an ordinary measure of damages. DEFENCE. Denial of contract. Repudiation of goods. Wilful misrepresentation by vendor. In the case of sales by sample, if the bulk does not correspond, the defendant may refuse to receive it, and may keep the article a reasonable time to examine and then repudiate it. Where, after receiving the goods, the buyer tries to re-sell them, using for the purpose a sample obtained from the sellers, and keeps the goods for a month, there is an acceptance by him of the goods within the meaning of s. 4, s.-s. 3, of the Sale of Goods Act, 1893, although he does not inspect the goods or take a sample from the bulk: Taylor v. Smith (61 L. J. Q. B. 3.T1 : (1893), 2 Q. B. 65), declares no principle of law, and is of no general application : Taylor v. Great Eastern Railway, 70 L. J. K. B. 499; (1901), 1 K. P.. 774. Where goods are sold by sample the place of delivery is in the absence of a special agreement to the contrary the place for in- spection by the buyer, and refusal to inspect there when opportunity therefor is afforded is a breach of the contract to purchase. Evidence of mercantile usage will not be allowed to add to or affect the con- :ion of a contract for sale of goods unless such custom is general: Trent Valley Woollen Mfg. Co. v. Oelrichs, 2:>> S. C. R. 682. Eggs were sold by sample f. o. b. London. There was no wilful delay in shipping on plaintiff's part. Defendant, who lived in Ottawa, learning that the eggs had been frozen in transit owing to the sudden drop in the temperature, wished to inspect before accept- ing the draft : Held, that inspection should have been made at London and plaintiffs must be paid their losses on the re-sale, ex- penses and commission : McLean v. Freedman, 12 O. W. R. 10r,^. ACTIONS TOR NOT DEI. I VI ODS. 273 La the action for not accepting goods in case of written contract, proof must be given that the requisites of the Statute of Frauds as to acceptance have been observed, this action what is required is proof of delivery. The : which constitute a delivery are not the same as the facts which stitute an acceptance; e.g., an acceptance and receipt of part sati the statute as to the whole, but is not a delivery of the whole for the purpose of this action. To maintain this action, delivery to a carrier may be sufficient, though not to dispense with a written con- tract, for he has no authority as carrier to accept : Meredith v. Meigh, 2 E. & B. 364. Delivery may be made to a third person at the defendant's request. ACTION FOR NOT DELIVERING GOODS. On a contract of sale the obligations of the seller are : — 1. To deliver or preserve for delivery to the buyer. 2. To perform warranties, express or implied. 3. Neither wilfully to misrepresent nor fraudulently to conceal anything relating to the article sold. In an action against vendor of goods for not delivering them, the plaintiff may be called upon to prove the con- tract and the breach, the performance of all conditions precedent on his part (principally readiness to receive and to pay), and the amount of damages. In support of averment that the plaintiff was ready and willing to accept the goods and pay for the same, a demand of the goods is sufficient evidence: Wilka v. Atkinson, 1 Marsh. 412. Non-delivery de- pends on stipulations of contract. If no place is named, the buyer must fetch the goods. Where goods are to be delivered at a future day, the damages for breach of contract are the difference between the contract price and the market price of the goods at the day when they ought to have been delivered. See Hendrie v. Neelon, 12 A. R. 41. DEFENCE. Statute of Frauds. Want of readiness of plaintiff to accept. Insolvency of vendee. An action for goods jettisoned will lie although the master haB signed clean bills of lading for them and should not have stowed them on deck: Cameron v. JJomville, 1 P. & R. «>47. Where the goods are laden on deck according to the custom of a particular trade, the owner thereof is entitled to contribution in general average for K.E.— 18 274 LOTION FOR GOODS SOLD AND DELIVERED. loss by jettison: Marks v. Watson, 2 Kerr, 211 (N.B.). Where before tne time for the completion of a contract for the sale of goods, one party notifies the other that he does not intend to complete, that notification may be treated as a breach and at once acted on ; but if, as he may, the other party waits till the time for completion and then brings his action, he must shew that at this time he had him- self fulfilled all conditions precedent on his part: Dalrymple v. Scott, 19 A. R. 477. Where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it or pay damages for non-performance, although in consequence of unforeseen causes the performance has become unexpectedly burdensome or even impossible. i aylor v. Caldwell. 3 B. & S. 826, followed: Grant v. Armour, 25 O. R. 7. Where seed is delivered by one person to another without any warranty, honestly believing it to be clean, to be grown on the land of the latter, the produce thereof to be returned and paid for at a fixed price per bushel, the transaction is a bailment and not a sale : and damages arising from other innocuous seed having been mixed therewith and on harvesting having become scattered on the ground and coming up the following year on the land, are too remote and not within the rule laid down in Hadley v. Baxendale, 9 Exch. 341, and Corey v. Thames Ironicorks Co., L. R. 3 Q. B. 181 ; McMullen v. Free, 13 O. R. 57, and Smith v. Green, 1 C. P. D. 92, distinguished : Stewart v. Sculthorp, 25 O. R. 544. Where a bailee accepts a bail- ment and undertakes to re-deliver to his bailor, but is evicted by title paramount, he is not, unless there is a special contract or he is in some way to blame for the loss, responsible to the bailor for injury suffered by the latter. Biddle v. Bond, 6 B. & S. 225, followed: Ross v. Edwards, 11 R. 574. ACTION FOR GOODS SOLD AND DELIVERED. The Dominion Act respecting Weights and Measures, R. S. C. c. 52, contains the following sections : — 24. Every contract, bargain, sale or dealing made or had in Can- ada, in respect of any work, goods, wares, or merchandise, or other thing which has been or is to be done, sold, delivered, carried or agreed for by weight or measure, shall be deemed to be made and had according to one of the Dominion weights or measures ascer- tained by this Act, or to some multiple or part thereof, and if not so made or had, shall be void, except when made according to the metric system, and all tolls and duties charged or collected accord- ing to weight or measure shall be charged and collected according to one of the Dominion weights or measures ascertained by this Act, or to some multiple or part thereof. 25. Ail artieles sold by weight shall be sold by avoirdupois weight, except that gold and silver, platinum and precious stones and articles A.CTION FOB GOODS 30LD AM) DELIVERED. 275 made thereof, may bo sold by the ounce troy, or by any decimal part of such ounce, and all contracts, bargains, sales, and dealings in relation thereto shall be deemed to l>e made and had l>y such weight, and when so made or had shall be valid. 27. The use of local or customary measures or of heaped measures shall not be lawful. L">. M) contract <>r agreement shall be invalid or open to objec- tion on tne ground that the weights or measures expressed or referred to therein are weights or measures of the metric system, or on the ground that decimal subdivisions of Dominion weights and measures, whether metric or otherwise, are used in such contract or dealing. Plaintiff must prove: 1. Contract of sale; 2. Delivery of goods according to contract; 3. Value or price. Statute of Frauds not so often brought in here, because generally the delivery on which the action is founded amounts to receipt and acceptance, though not necessarily. In general, proof of the delivery of the goods to and receipt of them by the defendant is prima facie evidence of the contract, and supersedes the proof of an order; but this may be rebutted, as by proof that the defendant was in the habit of selling such goods for tne plaintiff on commission : Miller v. Newman, 4 M. & Gr. 646. In some cases where poods have been wrongfully taken, the plain- tiff may waive the tort and sue on the implied contract. Then he must shew a title to the property : Lee v. Shore, 1 B. & C. 94. A party cannot maintain this action unless he has either deli- vered the goods or done something equivalent to delivery : Smith v. Chance, 2 B. & A. 755. Action brought before credit expired. In calculating the time of credit the day of the sale must be excluded: Webb v. Fairmaner, 3 M. & W. 473. An action for goods bargained and sold, to be paid for by instalments, cannot be maintained until the full period of credit has expired: Moore v. Kuntz, 44 U. C. K. 309. Unless a contrary intention appears where there is an uncondi- tional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer at the time the contract is made, and it is immaterial whether the time of payment or the time of delivery or both be postponed: Craig v. Beardmore, 7 O. L. It. (574. Whether the property in goods contracted to be sold has or has not passed to the purchaser, depends in each case upon the intention of the parties, and the property may pass even though the goods have not been measured and the price has not been ascertained : Wilson v. Shaver, 3 O. L. R. 110. 270 ACTION FOR GOODS BARGAINED AND SOLD. i Where the property has passed to the buyer the vendor may sue for goods bargained and sold, and will be entitled to recover the whole value of the goods. There must have been an acceptance of part, or part payment, or earnest, or a note or memorandum in writing within the Statute of Frauds: Hankey v. Smith, Peake, 42, n. Where an executory contract is entered into respecting property or goods, if the subject matter be destroyed by the act of God or vis major, over which neither party has any control, and without either party's default, the parties are relieved: McKenna v. McNamee, 14 A. R. 339, 15 S. C. R. 311. Where goods the subject of an executory contract of sale have passed into the possession of the vendee without payment therefor being made, and have while in such possession been lost or destroyed through no default of the vendor, the vendee is liable for the price notwithstanding that the property in the goods had not by the terms of the contract passed to the vendee, and not- withstanding that no negligence on his part is shewn : Hesselhacher v. Ballantyne, 28 O. R. 182, 25 A. R. 36. After default in payment by the purchaser of a machine under an agreement whereby the property was not to pass until payment in full, and that on default vendors should be at liberty to resume possession, nothing being said as to resale, the vendors seized the machine and resold it, the plaintiffs (the vendors) were held to have no right of action for the unpaid balance: Sawyer v. Pringle, 18 A. R. 218. Followed in Arnold v. Playter, 22 O. R. 608. Meaning of term, " carload :" Hartley v. Canadian Packing Co., 21 A. R. 119. Plaintiffs shipped goods to defendant at a station on the Cana- dian Northern, but the goods never reached there : — Held, that the buyer has the right to examine goods ; that there has been no accept- ance, and therefore the property in the goods remained in the seller, who is the proper party to bring an action against the railway com- pany which failed to deliver the goods. Action dismissed : Steven v. Burch, 10 W. L. R. Appeal dismissed, 10 W. L. R. 400. Where the contract has been made with an agent and delivery to him, the seller may in some cases resort to the principal. Where the principal is unnamed or unknown at the time of sale, the following has been laid down as the rule : — " If a person sells goods, supposing at the time of the contract he is dealing with a principal, but after- wards discovers that the person with whom he has been dealing is not tlu> principal in the transaction, but agent for a third person, though he may in the meantime have debited the agent with it, he may afterwards recover the amount from the real principal, subject, however, to this qualification, that the state of the account between the principal and the agent is not altered to the prejudice of the principal. On the other hand, if, at the time of the sale, the seller ! b \i"i> with 277 knows not only that the person who is nominally dealing with him is not principal, but agent, and also knows who the principal really is, and, notwithstanding all thai knowledge chooses to make the agent his debtor, dealing with him and hi:n alone cording to cases of Addison v. Gandassequi, 1 Taunt. 574, and Paterson v. Qandaasegui, 15 East <">-, the seller cannol afterwards, on the failure of the agent, turn around and charge the principal, having once made an election at the time when he had the power of choosing between the one and the other:" Thomson v. Davenport, 9 B. & C. 78, 2 Sm. L. Cas. A person who sells goods to the agent of an undisclosed principal, believing the agent to be the principal, may sue the principal on discovery of the facts, and the principal will not be discharged from liability by having made payment to the asent before such discovery, unless the conduct of the seller has been such as to make it unjust for him to call upon the principal for payment, or unless the char- acter of the business is such as naturally to lead the principal to suppose that the seller would give credit to the agent alone : Irvine v. Watson. 5 Q. B. D. 102, and Heald v. Kenworthy. 10 Ex. 739, followed: Arbuthnot v. Dupas, 15 Man. L. R. 634. 2 \\ . L. R. 445. The fact of the principal's name being disclosed at the time of the sale does not, until the seller has elected to charge the agent, prevent his resorting to the principal; such disclosure merely enables the seller to charge the principal in the first instance if he so desire : t alder v. Dobel, L. R. C. P. 480: Becherer v. Asher, 23 A. R. 202. When the seller elects to sue an undisclosed principal, it is a good defence if the defendant show that he has paid his agent, and the books of the seller cannot be admitted as evidence for him that he always debited the principal: Smyth v. Anderson, 7 C. B. 21. Where the seller has sued the agent to judgment he cannot, although he has not received satisfaction, afterwards proceed against the principal : Priestly v. Frrnie. 3 H. & 0. 977. The travelling salesman of a wholesale dealer is presumably not authorized by the customer who buys from him to sign a con- tract for the customer as purchaser: and this presumption is not rebutted by a written memorandum of the order being made in the purchaser's presence and a duplicate given to the latter; the entry of the purchaser's name made by the salesman is not evidence per se of his agency: Imperial Cap Co. v. Cohen, 11 O. L. R. 382. 7 O. W. tt. 128. 78 ACTION FOR GOODS SOLD AND DELIVERED. A joint stock company is in the nature of a partnership. When incorporated the direct liability of individual members ceases. A question frequently arises, What is the liability of persons who have become subscribers to a company projected but. not finally established? An action for goods sold and delivered will not lie against the personal representative of a deceased partner to recover the price of goods ordered by the partnership before but not delivered until after the death of the partner: Bagel v. Miller, 72 u. J. K. B. 495; (1903), 2 K. B. 212 ; 88 L. T. 769 ; 8 Com. Cas. 218. H. fraudulently represented to the plaintiffs that he was the agent of the defendants sent by them to make a purchase of goods. He was not in fact in the defendant's employment, they did not send him to make the purchase, nor did they know he was going to make it ; but on the contrary after he had so fraudulently obtained the goods, they purchased the goods from him and paid him in full without knowing where he had purchased. The goods were after- wards sold by the defendants in the ordinary course of their business: — Held, that the property in the goods did not pass to the defendants, and they were liable to the plaintiffs for conversion. Cundy v. Lind- say, 3 App. Cas. 459, applied. There was no contract between the plaintiffs and defendants — no consensus ad idem — and no contract between the plaintiffs and H. : Eby-Blain Go. v. Frankel, 23 Occ. N. 173. The plaintiffs sued a bank to recover the price paid the bank for certain goods, which owing to a customs' seizure and forfeiture the plaintiffs never received. The bank were never in actual posses- sion of the goods, but a bill of lading was indorsed to them as a security for advances, and this bill of lading was indorsed and delivered by the bank directly to the plaintiffs. The jury found that it was the bank who sold the goods to the plaintiffs; that they pro- fessed to sell with a good title ; and that the plaintiffs could not by any diligence have obtained the goods : Held, that upon these findings and the evidence, and having regard to the provisions of the Bank Act, R. S. C. c. 120, the transaction must be regarded as a sale by the bank as pledgees, with the concurrence of the pledgor, and not as a mere transfer of the interest of the bank under the bill of ladintr, and that the plaintiffs were entitled to recover the price as upon an implied warranty of title and a failure of consideration. Uorley v. Attenborour/h, 3 Ex. 500. commented on and distinguished: Peuchen v. Imperial Bank, 20 O. R. 325. Where undisclosed principals carrying on a wholesale business employ an agent to carry on a retail business in his own name, but for their benefit to sell their goods at invoice prices, they are not liable for the pric^ of goods of the same kind purchased by the agent for himself from other persons without the knowledge or authority GOOI).- 80LD W1T1KH I AGREEMENT. 279 • >f his employers. Watteau v. Fenvick (1893), 1 <}. B. .".40, con- Bidered: Becherer v. Asher, 23 A. K. 202. Where a husband gives his wife express authority to i>]<-< ! lt«* his credit, she becomes his agent. As to implied authority, see Manby v. Scott, and other cases, 2 Smith L. Cas. Where a wife is living te, it lies on the plaintiff to show that she does so under cir- cumstances which imply an authority to pledge her husband's credit: Johnston v. Sumner, 3 II. & N. 201. The plaintiff must prove either that the defendant and the woman to whom the goods are delivered are married, of wnich it is sufficient prima facie evidence that they are living together, or that she and the defendant cohabited, and that she passed as his wife with his assent, assumed his name, and lived in his house as part of his family : Car v. King, 12 Mod. 372; Watson v. Threlheld, 2 Esp. 037. The father of an infant to whom goods are supplied is only liable where an actual authority from him to his child is proved, or circum- stances appear from which such an authority can be implied : Rolfe v. Abbott, 6 C. & P. 280. Where goods sold without any agreement as to price, value must be proved. When there is no actual agreement as to price or time of pay- ment the law will supply the deficiency by importing into the bargain a promise by the buyer to pay a reasonable price, and by implying in the absence of evidence to the contrary that payment should be made on delivery: Christie v. Burnett, 10 O. R. 009. To sue for goods bargained and sold the plaintiff must prove a certain price agreed upon; if ho cannot, there should be a special count for not accepting : Elvidge v. Richardson, 3 U. C. It. 149. On a mistake of vendor as to identity of vendee he obtained a judgment against the wrong vendee. In spite of that judgment, which the Court vacated, he obtained judgment against the right vendee: Keating v. Graham, 20 O. it. 301. Stoppage in transitu does not rescind a contract on the sale of goods, but merely gives the vendor a Hen on the poods for their price : Brassert v. McEwen, 10 (). R. 179. Lex fori governs Bryson v. Graham. 2 Thorn. 271 (N.S.). Plain- tiff sued for goods sold and delivered. Defendant pleaded the Sta of Limitations. Plaintiff replied that at the time the action accrued defendant was absent from the province, and that suit ws brought when defendant came within the jurisdiction of the Court. The cause of a'tion had accrued in Prince Edward Island, and it seemed that according to the law of that province the debt was barred by the Statutes, but was not barred by the Statute of Nova Scotia: Held, that admitting the debt to be oul of date in Prince Edward Is! 280 Ai HON FOB GOODS SOLD AND DELIVERED. the plaintiff might nevertheless recover in Nova Scotia, as only the plaintiff's remedy was thereby barred, and the debt was not ex- tinguished: Carvell, et ah, v. Wallace, 3 N. S. D. L. 165 (N.S.). The Court will decree specific performance of a contract for the manufacture and sale of saw-logs, where they are capable of being identified and possess a peculiar value for the purchaser: Stevenson v. Clarke. 4 Gr. 540; Fuller v. Richmond, 2 Chy. 24, S. C, 4 Chy. 657; Iarwell v. Walbridge, 6 Chy. 634. A mortgage on saw-logs will bind the lumber into which they are sawn, but the mortgagee must prove that such lumber was made out of the logs mortgaged: White v. Brown, 12 U. C. R. 477. An agreement that A. shall saw certain logs, and deliver the lumber at his mill to B, as soon as he is able, such sawing to be paid for immediately on delivery, is not void for uncertainty : O'Don- nell v. Hugill, 11 U. C. R. 441. A purchaser of goods ordered to be sent by railway does not lose his right of rejecting the goods by unloading tnem from the cars on arrival and teaming them to his own premises, if he then finds them to be inferior to what he had ordered and so notifies the vendor within a reasonable time: Creighton v. Pacific Coast Lumber Co., 12 M. L. R. 546 (Man.), A suspensive condition in an agreement for the sale of movables whereby until the whole of the price shall have been paid the property in the thing sold is reserved to the vendor, is a valid condition: Bannur D'Hochelaga v. Waterous Engine Works Co.. 27 S. C R. 406. A contract for the sale of goods "to arrive" does not constitute a conditional contract rendering the vendor liable only on the condi- tion of the arrival of the goods, except, perhaps, where the goods are either in transit in a named vessel or about: to be shipped at a named port in some particular manner. In the case of a sale of iron to be made in Scotland : Held, upon the evidence that the sale was abso- lute, and not subject to any condition as to the arrival of the goods: Fleury v. Copt lam], u; r. C. R. 30. Case for not accepting flour. The witnesses on the trial were agreed in the opinion that the words " free on board " included the shipment and all port and harbor charges, such as canal dues, wharf- age, etc.: Meld that the defendant had a right before paying, to see the flour free on board: George v. Glass, 14 U. C. R. 514. In a! evidence shewing a different intention, goods sold P.O.B. any particular place must arrive at that place before delivery is complete: Stephens Bros. v. Burch (1909), 2 Alt. L. R. 68. Tsing i lie | it in 29 U. C. R. 168, that upon a contract for the sale of 10,000 bushels of oats, "at 40 cents per 34 lbs., free on board at Kingston," the purchaser was not bound to ACTION FOB GOODS SOLD AND DELIVERED. 28] der the price before requiring th< - U c pul th oata on board: Clark v. Rose, 29 D. C. R. 302. Where no time is limited for the doing of an art, it a ; done in a reasonable time, and :i special request should be averred : Daly v. Stevenson, "> O. S. 737. Where before the time tor the completion of a contract for the Bale of "oils one party notifii ther that he does not intend to complete, thai notification may be treated as a breach and at once acted upon : but if, as he may, the other party waits for th^ time for completion and then brings his action, he must show that at this time he had himself fulfilled all conditions precedent on his part: Dalrymple v. s. 1 Q. B. 513: Bannerman v. Barloir. 7 W. L. R. 859. Special condition not having been brought to defendant's atten- tion, plaintiff's express warranty stands with this provision elimin- ated: Saicyer-Massey v. Ritchie, 10 W. L. R. 457. See American- Abell v. Towound, 10 W. L. R. 413. where defendant could not read English. Effect of retention may be to lose right of rejection, but subject to claim for damage through breach of warranty or by way of counterclaim: Couston v. Chapman, L. R. 2 IT. L. Sc. 250; (Irimolby v. Wells. I, R. 10 C. P. 393. Plaintiff retaining power of disposal and control until payment property does not pass: Graham v. T.aird (1909). 14 O. W. R. 1. 284 ACTION FOB WORK AND MATERIALS. The purchaser of a chattel is entitled to recover from the vendor upon failure of title the value of the chattel and not merely the amount paid by him to the vendor: Confederation Life Association v. Labatt. 27 A. R. 321. Action for damages for breach of a warranty on the sale of a second-hand engine, that the engine was in a good state of repair and in good working order: Held, that, under s.-s. (d) of s. 52 of the Sale of Goods Act, R. S. M. 1902, c. 152, the proper measure of dam- ages to be allowed is the amount which at the time of the sale it would nave been necessary to expend in order to remove defects which constituted the breach of the warranty, but not including cost ol repairs necessitated by wear and tear or accidents after the plain- tiff began to use the engine. Cook v. Thomas, 6 Man. L. R. 286, followed. Sumner v. Dobbin, 16 Man. L. R. 491. The measure of damages for non-delivery of goods sold is ascer- tained by the difference between the contract price and the market or current price thereof at the time the breach of contract takes place : McOillis v. Huot, Q. R. 29 S. C. 350. A party who contracts for the manufacture of machinery, and afterwards notifies the manufacturer that he will not accept delivery of it, unless certain guarantees respecting it, not mentioned in the contract, be given him, is thereby held to repudiate the contract, and becomes liable for the price of the machinery, less whatever value it may have for the manufacturer: Morgan-Smith v. Montreal Light, Heat & Power Co., Q. R. 30 S. C. 242. The measure of damages, apart from special circumstances, which the manufacturer of an article that has had to be destroyed by the fault of another is entitled to recover, is the price which he could have sold it for on the day that it had to be destroyed : Held, therefore, that, although the plaintiffs were brewers, they were entitled to recover the full selling value of the beer in their cellars which had by the fault of the defendants to be thrown away, and not merely such a sum as they themselves must have expended in order to brew an equal amount of beer of the same quality to replace it : Holden v. Bostock, 50 W. R. 323. In estimating damages every reasonable presumption may be made as to the benefit which plaintiff might have received from bona fide i rformance of agreement : Bank of Ottawa v. \\ilton, 10 W. L. R. 331. ACTION FOR WORK AND MATERIALS. The plaintiff's proofs are: 1. The contract, express or implied; 2. The performance of the work or supply of materials (if any); 3. The value (if remuneration not ascertained hy contract). tfON-PERFOBMANCE OF CONTEACT. 285 In action for non-performance of contract to do work, plaintiff must show willingness and readiness on his part to perform, and on the defendant's part a distinct and unequivocal refusal, and that such refusal was acted upon by plaintiff: McLeUan v. Winston, 12 O. R. 431. Where services have been performed by A. for the benefit and at the request of B., and which have been charged to J'... the fact thai 0. has subsequently agreed to pay for such service, and has had judgment recovered against him therefor by A., will not prevent A. from recovering from 1'... unless the subsequent agreement amounts to a novation : Herod v. Ferguson, 25 O. R. 56. r ». Where there was a special agreement, terms of which had been performed, it raised a duty for which an indebitatus assumpsit, or common counts, lay. If contract not executed, and plaintiff has been prevented from executing it by absolute refusal of defendant to perform his part of it, or by an act done by the defendant which has incapacitated plaintiff from per- forming it, the plaintiff may rescind contract and sue on a quantum meruit: Planche v. Colburn, 8 Ring. 14. The right to recover for loss of profits discussed : Corbet v. Johnston, 10 A. R. 564. If there is a 1 agreement, and work done and adopted by the defendant, though not strictly pursuant to such agreement, the plaintiff may recover on a quantum meruit: Burn v. Miller, 4 Taunt. 745. The de- fendant may refuse to pay for the subject-matter where it deviates. and in such cases the plaintiff cannot recover even on a quantum meruit: Ellis v. Hamlin, 3 Taunt. 52. To fix a defendant with extras, the acceptance and adoption ought to be under circumstances which imply approval and waiver of the ion, and make it practicable to repudiate: see Re Toronto Drop Forge Co., 24 O. R. 191, where a lien on land for extra work was refused. Architect's certificate. Apart from fraud, the wrongful with- holding by surveyor of certificate affords no ground for action : see Badgley v. Diekson, 13 A. R. 494. As to when a claim lot work and labour, and when one for goods sold and delivered, is applicable, the rule is laid down in Atkinson t. Bell, 8 B. & C. 277. The power of amendment renders the distinc- tions less material than they were; but if the claim is not properly made for work and materials, but for not accepting a chattel, it may be defeated by a defence under the Statute of Frauds: see Wolfenden v. Wilson, 33 U. C. R. 442; Canada Bank Note Co. y. Toronto R. W. Co., 22 O. R. 402. If there is a deviation from the terms of contract, the plaintiff must prove assent of defendant to the deviation. 286 ACTION FOB WORK AND .MATERIALS. DEFENCE. The following are good : That work was done under special contract not executed. That defendants, being a corporation, did not contract, or suffi- ciently contract, under seal. (See under Corporation Deeds.) Contracts not under corporate seal made with trading corpora- tions relating to purposes for which they are incorporated, or if partly performed and of such a nature as would induce the Court to decree specific performance thereof, if made between ordinary indivi- duals, will be enforced against them: Ont. Western Lumber Co. v. Citizens' El. Co., 16 ('. L. T. 118. Compare Bain v. Anderson, 16 C. L. T. 143. That defendants received no benefit from work, it having been improperly executed by plaintiff : see Campbell v. McKerricher, 6 O. R. 85. Held, that where, as here, the contract is to do work for a specific sum, and this applies as well to original as to sub-contracts, there can be no recovery until the work is completed unless the failure to do so is caused by the defendant's fault ; and as the plaintiff ad- mitted the non-completion by suing on a quantum meruit, and there was nothing to show any fault on the defendant's part, there could be no recovery. Appleby v. Meyers, L. R. 2 C. P. 660, followed : King v. Low, 3 O. L. R. 234. The absence of a final certificate a bar to recovery by a con- tractor: Scott v. Liverpool, 3 DeG. & J. 334; Robinson v. Owen Sound, 16 O. R. 121. As to a sub-contract, see Petrie v. Hunter, 10 A. R. 127. Although extras were done and there was some evidence as to delay by strikes, the architect was not asked for, and he did not grant any extension of time, the contract was held to govern, and the defendants were entitled to recover by way of counterclaim the sum provided by the contract as liquidated damages: McNamara v. 8kain, 23 O. R. 103. Construction of building contract: Neelon v. Toronto. 25 S. C. R. 579. As to engineer's certificate on contract for Dominion Public Work: see Murray v. Reg., 16 C. I.. T. 241. Where a superintendent in charge of work was nlso to act as arbitrator on the contract, he was not disqualified from acting in that dual capacity: nmec v. Toronto, 24 O. R. 313: Farquhar v. Hamilton, 20 A. R. 86. The powers of a municipality under a contract to put on men to finish the work discussed: Siangan v. Windsor, 24 O. R. 675. Interest may be allowed on amounts from time they become pay- able : McCullough v. Newlove, 27 O. R. 627. Where there is a sub- stantia! performance of work under a special contract, though not in strict accordance with it, and there is not fraudulent or wilful devia- QUANTUM MKKUIT. 287 tion from its terms, the contractor is entitled to recover for the work done; the measure of damages in such a cage being the agreed price uch a sum as it would take t., complete the work according to the contract: Mcintosh, et a!., v. CuUen, L' Old. 268 (N.S.). 1- In actions upon quantum mcrutt for work and labour, defective workman- ship may be proved in mitigation of damages, although not pleaded. Secus, if the action be upon a special contract. 2. In an action upon a special contract lor the salt- of a specific article for goods s.>l«i and delivered, evidence of a breach of a warranty may be given in reduc- tion of the contract price, although not pleaded. 3. In au action for goods sold and delivered, and for work and labour, evidence of dam- ages fur delay cannot be iri \-«-n unit ss under a counterclaim. Betnble, In an action by a carrier for freight evidence of damage to the goods cannot be given unless under a counterclaim: Smith v. Strange, 2 M. L. R. 101 (Man.). Where no time is limited for the doing of an act, it must be done in a reasonable time, and a special request should be averred : Daily v. Stevenson, 5 O. S. 737. The plaintiff having sued one of two contractors, the other being out of the juris- diction, and having recovered judgment against him, cannot after- wards sue the other: Harris v. Dunn. 18 U. C. R. 352. A married woman havimr separate estate may enter into a contract along with others. Semble, if she, having no separate estate, is not liable under such a contract, the other contractors are liable without her: Ding- man v. Harris, 26 O. R. 84. >.o action lies for the non-performance of a term of a contract which term is on its face impossible of per- formance by any of the parties: Stratford Gas Co. v. City of Strat- ford. 20 A. R. 109. Where there is a contract to do specified work for a fixed sum. with a proviso for payment of proportionate amounts equal to eighty per cent, of this fixed sum as the work is done, and the balance of twenty per cent, in thirty days after completion and acceptance, completion is a condition precedent to the right of pay- ment, and where the work is not completed there is no right to recover for the portion done as upon a quantum meruit: Sherlock v. Powell. 26 A. R. 407. In an aclion on a contract, and alternately on a quantum meruit, to recover the price of certain specified work, if the contract is not properly carried out, the plaintiff can only recover the real value ot the work done and the material supplied: Chapel v. flickes (2 C. & M. 214) followed: Btegman v. O'Connor, 80 L. T. 234. Parol Contract between Crown and Subject. — The provisions of s. 11 of 42 Vict, c 7. and of s. 23 of K. S. <\ c. 37. do not apply to the case of an executed contract: and where the Crown has received the benefit of work and labour done for it. or of goods or materials supplied to it, or of services rendered to it by the subject at the instance and request of its officer acting within the scope of 288 ACTION FOR MONEY PAID. his duties, the law implies a promise on the part of the Crown to pay the fair value of the same : Hall v. The Queen, 3 Ex. C. R. 373. Partial Performance. — Where there is a contract to do special work for a fixed sum, with a proviso for payment of proportionate amounts, equal to eighty per cent, of this fixed sum, as the work is done, and the balance of twenty per cent, in thirty days after com- pletion and acceptance, completion is a condition precedent to the right to payment, and where the work is not completed there is no right to recover for the portion done as upon a Quantum meruit : Sherlock v. Powell, 20 A. R. 407. A contract of agency contained no agreement by the principal to employ for any period or to manufacture any goods. These terms could not be imported into the contract by implication : Morris v. Dinnick, 25 O. R. 291. When work is undertaken by contract or by estimate and bargain, and the articles produced by the work are destroyed by accident be- fore completion and delivery to the employer, the loss is that of the workman or contractor: Shalloic v. Lessard, Q. R. 14 K. B. 292. When one contracts to do work for another the preparation for which involves outlay and expense, a corresponding agreement in the absence of any express provision will be implied on the part of the person with whom he contracts to furnish the work ; but no such implication will be made where from circumstances known to and in the contemplation of both parties at the date of the agree- ment to do the work, it was and continued to be beyond the power of the party to carry out such implied agreement, 14 A. R. 339: AlcKenna v. McNamee, 15 S. C. R. 311. The construction of a contract cannot be affected by the declara- tions of the parties made subsequent to its date, though when the words are ambiguous they may be explained by the previous or contemporaneous conduct of the parties: Houldcr v. Com. of Puhlic Works (1908), A. C. 270. Prospective damages are properly awarded for the breach of an annual contract which provides that the purchaser shall ultimately buy all the existing material in the possession of the vendor : George D. Emery Co. v. Wells, 75 L. J. P. C. 104; (1900), A. C. 515; 95 L. T. 589. ACTION FOR MONEY PAID. Plaintiff must prove: 1. The payment of money by the plaintiff; 2. That it was paid at request of defendant, and to his use. The payment must be proved as a fact. The admission of the payee is not admissible against the defendant, unless the payee were the agent of the defendant for the purpose of making the admission. A.CTION FOR .Mo\i:v PAID. 289 The plaintiff must prove that the money was paid, and the money paid was his money. As to requi -'. b legal obligation for another's debt will be equi- valent to a previous request, as where one person is a surety for another, and is called upon to pay, the money paid may be recovered, though not paid by desire of principal: Email v. Partridge, 8 T. R. 310; MeNab v. Wagstaff, 5 U. C. R. 588. Where several are sureties, and one is compelled to pay the whole, he may recover in the action from each of his co-sureties, a rateable proportion of the moneys so paid: Deering v. WincheUea, El. 2 B. & 1\ 270; Geary v. The Gore Bank, 5 Chy. 536. This action does not lie for contribution or indemnity against a person jointly engaged with the plaintiff in doing a wrongful act by which the plaintiff is put to expense: Merrywcather v. Xixan, 8 T. R. 186. To support this action It niust appear either that the defendant was primarily liable to the third party to pay the money, or that it was paid, or the liability incurred by the plaintiff at his express or implied request, or on his guarantee: Brittain v. Lloyd, 14 M. & W. 762. The indorser of a bill, who has been sued by the holler and paid the amount, cannot recover tne costs of the former action, for the custom of merchants does not make an acceptor liable for the costs of actions against subsequent holders: Dawson v. Morgan, 9 B. & C. 618. If an administrator on competent advice pays a claim bona fide made against the estate, the money paid is not on his death. even though paid under a mistake in law, an unadministered asset so as to vest in an administrator de bonis, nor a right of action to recover it back: Mayhcw v. Btone, 2C S. C. R. 58. Over payment made by an executor held to have been made under mistake of fact and recoverable. Gorham v. Kingston, 17 O. R. 432, specially referred to: Barber V. Clark, 20 O. R. 522. affirmed IS A. R. 435. Land belonging to a trust estate having been sold for taxes during the year allowed for redemption, the trustees who had been newly appointed paid the taxes for the current year in ignorance of the sale, and subsequently on learning the fact decided not to redeem, as the arrears exceeded the value of the land : Held, that they were not entitled to recover back the money as paid under a mistake of fact: Trusts Corporation of Ontario v. City of Toronto, 30 O. R. 209. In order to recover back money paid by plaintiff under nn agreement for sale of lands to him on the ground of failur sideration, plaintiff must give evidence of the terms of the agreement: McDonald v. McDonald, James 41 (N.b.). Held, that where taxes have been paid to a municipal corporation voluntarily and with knowledge of the K.E.— 19 290 ACTION FOR MONEY LENT. state of the law, and the circumstances under which the tax was imposed, no action can lie to recover the money so paid from the municipality. Judgment of the Court of Queen's Bench (Q. R. 8 Q. B. 246) affirmed: Canadian Pacific Railway Co. v. City of Quebec; Grand Trunk Railway Co. v. City of Quebec, 30 S. C. It. 73. Where money has been received by a manufacturing corporation under a parol agreement to make payment for the same in articles of their manufacture, which they have failed to perform, an action of as- sumpsit lies to recover back the money: Diamond v. The St. George Lime Company, 2 Kerr. 537 (N.B.). A person seeking to recover money paid under mistake of fact is not now bound to shew that he has been guilty of no laches ; the only limitation is, that he must not waive all inquiry : Law Society of Upper Canada v. City of Toronto, 25 U. C. R. 190. Loan. — Where money is lent to be repaid when the borrower is able, his ability may be shewn by a slight amount of evidence, such as is open to public observation, of a flourishing condition of his affairs, and it is not necessary to shew that the borrower is in a position to discharge the debt without inconvenience : Re Ross, 29 Chy. 385. The rule that money paid under compulsion of legal process can- not be recovered back does not apply where there has been an ab- sence of bona fides on the part of the defendant ; but the rule is ap- plicable to a case where the plaintiff, although he has paid no money to the defendant, has by mistake given him credit for the payment on account which has not in fact been made: Ward v. ~\Yallis, 69 L. J. Q. B. 423; (1900), 1 Q. B. 675; 82 L. T. 261. ACTION FOR -MONEY LENT. In an action for money lent, the plaintiff will have to prove the loan of his money. It is not sufficient to prove merely the payment of money to the defendant; for in such a ease the presumption is that the money is paid in liquidation of an antecedent debt. When a parent advances money to a child it is presumed to be a gift. A loan of money secured by mortgage is recoverable as money lent if there is no covenant to pay the amount. Where a simple loan of money is secured by a covenant to repay the money, the creditor's only remedy is on the covenant. It is a defence that a simple con- tract has been subsequently merged. As an amendment would now be allowed, this distinction is not so important: Re Ross, 29 Chy. 385. Where money is meant to be repaid when the borrower is able, his ability may be shewn by a slight amount of evidence, such as is ACTION FOB MOM.Y HAD AM) BECEI\ ED. '291 open to public observation of a flourishing condition of bis affairs, and it is not necessary to shew that the borrower is in a position to discharge the debt without inconvenience : Re Ross, 29 Gr. 385. Where there is evidence of a loan or debt, a promise to repay it will be implied: Hall v. Morley, S 1'. C. R. 584. When a promissory note is taken from the borrower as collateral security for money lent to him, and not in payment, an action can be brought for the money lent, notwithstanding that owing to the form of the note an action thereon could not be maintained : ^rior v. dray, 3 O. L. R. 34. A cheque on a bank indorsed by the payee is not evidence of a loan to him by the drawer. Of itself and unexplained, it is a proof of payment by the drawer to the payee: Allaire v. King, Q. R. 33 8. C. 343. ACTION FOR MONEY HAD AND RECEIVED. The plaintiff must prove the receipt of the money hy the defendant, and his own title to recover it as received for him. Also that money has been received. He must give evidence of some particular sum: Baxcndale v. G. ^Y. R. Co., 32 L. J. C. P. 225. The plaintiff must prove that it was his money, or that the money has been received to his (plaintiff's) use by defendant. Where money has been paid on a consideration which has wholly failed, it may be recovered in this action by the party who paid it. Conduct money received with a subpoena may be recovered by the party who paid it, where the attendance of the witness has been countermanded and he lias incurred no expense. See 17. 8. Exp. Co. v. Donohoe. 14 O. R. 333: Martin v. Andrews, 7 E. & B. 1. Where a party paying money upon a forged instrument has not been guilty of any want of that caution which, on account of the character he fills, he is bound to exercise, and has not by his conduct effected the rights of any other parties to the instrument, he may in general recover the money paid under a mistake. Money paid under mistake of law cannot in general be recovered : Chesney v. St. John. 4 App. R. 150; Clark v. Eckroyd, 12 App. R. 425. In this case, held, that demand for repayment or notice of mistake necessary before action : see Fret man v. Jeffries, L. R. 4 Ex. 189. The plaintiff can only rescind a contract on the ground of fraud, when he can disaffirm the contract and remit the defendant to his former state: Vrquhart v. .\facpherson, 3 App. Cas. S21. Money paid under mistake of Eact can be recovered: see The Lam Soeicty U. C. v. City of Toronto. 25 V. ('. R. 199: Raldi'in v. King- 292 ACTION FOR MONEY HAD AND RECEIVED. stone, 18 A. R. 63. Thus, overpayment to a legatee : Barber V. Clark, 20 O. R. 522. Ignorance of Legal Result. — When a person has paid money with a full knowledge of facts, he cannot recover it back on the ground that he paid it in ignorance of the law resulting from those facts : Perry v. Newcastle Fire Insurance Co., 8 U. C. R. 363. Money obtained by fraud can be recovered : McM aster v. Geddes, 19 U. C. R. 216. Where a man has been obliged involuntarily and by wrongful duress to pay, the money may be recovered. Where an action is brought and a person pays the demand " with- out prejudice," he cannot recover the money so paid: Brown v. Jfc- Kinally, 1 Esp. 279. Money paid under compulsion of law cannot be recovered : Moore v. Fullen Vestry (1895), 1 Q. B. 399. Money recovered by regular legal process, though in fact not due, cannot be recovered in this action : Marriot v. Hampton, 7 T. R. 269. A wrongful receipt by the defendant of the proceeds of goods wrongfully sold may be treated as a receipt to the plaintiff's use by waiving the tort : Lythgoe v. Vernon, 5 H. & N. 180. Money stolen by the defendant from the plaintiff constitutes a debt from defendant to plaintiff: see Wells v. Abrahams, L. R. 7 Q. B. 554. Money paid on illegal contracts is recoverable: 1. When the con- tract be executory, it' the plaintiff be not in pari delicto with the defendant. 2. Money is recoverable from a stakeholder in whose hands it has been deposited on an illegal consideration, though ex- ecuted by the happening of the event upon which a wager is made : see Trebilcock v. Walsh, 21 A. R. 56. 3. The money is recoverable though the contract be executed, if the plaintiff be not in pari delicto with the defendant. 4. Money is not recoverable where the contract is executed and plaintiff is in pari delicto. The damages recoverable by a non-trading depositor in a bank, on the wrongful refusal of the bank to pay, are limited to the interest on the money: Henderson v. Bank of Hamilton, 25 O. R. 641. The rights of a trader are defined in Marzetti v. Williams, 1 B. & A. 415. And discussed in Rolin v. Stewart, 14 C. B. 594. The onus of shewing that a solicitor who is in possession of a mortgage, and collects the interest, has authority also to collect the principal, is upon the mortgagor: In re Tracy, 21 A. R. 454. If the Court can trace money or property, however obtained from the true owner, into any other shape, it will intervene to secure it for the true owner, by holding it to be his in equity or by giving him a lien on it. Accordingly, where money was stolen the owner MONEY I'M 11 i \ Ml i \Ki:. 293 was held entitled to leasehold property, furniture and other chattels, purchased with tin- Btolen money, and an injunction was granted to restrain parting therewith until the hearing: Merchants' Express Co. v. Morton, 15 Chy. 274. 2 Ch. Ch. 319. Where a robbery had been committed in a foreign country, but no trial had taken place, and the money stolen had been invested in the purchase of property in this country, the Court granted an injunction to restrain the selling or in- cumbering thereof: lb. Seville, that money paid for tolls under com- pulsion in order to enjoy a road may be recovered in an action for money had and received: Little v. Diuidas and Waterloo Macadamized Road Co., 2 U. C. C. P. 299. An action for a certain legacy can be maintained in common law Courts against any person who under a will is made liable to pay such legacy and receives under such will funds sufficient to pay it. See 5th R. S. C. c. 113, s. 4: Elh< v. Ells, 1 Thom. (2nd ed.) 173 (N.S.). Defendants pleaded in substance that the money, while kept unmixed with their own as the plaintiff's money, was stolen from them by persons unknown without any neglect on their part. Remarks as to such defence and the facts re- quired to sustain it: Bicklc v. Matheicson, 20 C C. R. 137. The plaintiff as executor of one W. having paid money to defendant as a legatee, and the will with the probate having been afterwards set aside by a decree, the plaintiff was held entitled to recover back the money : Ilaldan v. Beatty, 40 U. C. R. 110. A party may recover back money paid in forgetfulness of certain facts which had without doubt been known to him : Perry v. yevcastle Fire Ins. Co., 8 U. O. R. 363. A person seekinsr to recover money paid under mistake of fact is not now bound to shew that he has been guilty of no laches: the only limitation is that he must not waive all inquiry: Law Society of Upper Canada v. City of Toronto. 2.1 T". (\ R. 199. The fact of a payment having been made under protest, but without duress or assent on the part of the payee to any reservation of his right, would form no ground for an action to recover back the money: Doe d. Morgan v. Boyer, 9 U. C. R. 31S. An action for distraining for more rent than is due cannot be maintained without a tender of the sum which is really due. and the excess paid cannot be recovered back as money had and received: Owen v. Taylor, 39 U. C. R. 358. Held, following Breen v. Duckett, 11 <>. B. 1>. 275, that the plain- tiff was entitled to recover interest paid under protest by compul- sion of a wrongful distress: McKay v. Howard, O. R. 13.". A surety paying the debt of his principal after an s between the creditor and the principal debtor, which would have discharged the surety, cannot recover hack the money so paid : deary v. Gore Bank, 5 Chy. 536. A receipt in full is not conclusive evidence of nr. but it is a mere admission which is always susceptible of explanation in respect to the circumstances under which it was given. 294 ACTION ON ACCOUNT STATED. and the purposes which it was intended to answer : Hontforton v. Bondit, 1 IT. C. R. 3G2; Vuvillicr v. Browne, 4 U. C. R. 105. An action for money had and received will lie wherever a cer- tain amount of money belonging to one person has improperly come to the hands of another: Otcston v. Grand Trunk R. W. Co., 28 Chy. 431. The plaintiff sued the executors of D. D. C. for an account of all profit accrued to the estate of D. D. C-, by reason of the user by him of a certain machine made by him in alleged infringement of the plaintiff's patent, which profit consisted in the saving of ex- pense to D. D. C. : Held, on demurrer to the statement of claim, that the plaintiff had no remedy against the executors of D. D. C, in respect of such profit accrued to him prior to his death : Phillips V. Homfray, 24 Ch. D. 439, discussed, and regarded as decisive in the present case. Semble, that if the statement of claim could be read to mean that by reason of the wrongful act complained of, prop- erty of a tangible character passed from the plaintiff's estate to that of D. D. C, as distinct from the saving of expense, the conclusion might be different : Leslie V. Calvin, 9 O. R. 207. Payments made by a purchaser on account of moneys payable to the vendor under the contract, to the third person who is assignee of or interested in the vendor's contract can, on total failure of the consideration, be recovered by the purchaser in an action for money had and received to his use from such third person, though he was not a party to the contract: Aberaman Ironworks v. Wickens (L. R. 4 Ch. 101), distinguished and explained. Fleming v. Loe, 70 L. J. Ch. 805; (1901), 2 Ch. 594; 85 L. T. 480; 50 W. R. 55. ACTION ON AN ACCOUNT STATED. The plaintiff must prove an absolute acknowledgment; a qualified acknowledgment is not sufficient: McKay v. Grinley, 30 U. C. R. 54 ; Green v. Burtch, 1 U. C. C. P. 313. On the dissolution of a partnership, the parties signed a statement showing a certain amount as due to the plaintiff for his share and de- claring that " for the sake of peace and quiet and to avoid friction and bother," the plaintiff waived examination of the firm's books and agreed that the amount so stated should be deemed to be the amount payable by the defendants to the plaintiff: Held, that a promise to pay the amount of the balance so stated to be due should be implied from the admission of liability. Tn an action for the amount of the balance, the defendant alleged that the plaintiff had verbally agreed that he would not sue upon the account as stated, and that the docu- ment should be treated as merely shewing what would be payable to him upon the collection of the outstanding debts owing to the firm: ACTION A.GAIN8T [NNKEEPEBS. 295 Held, that as the effect of the alleged collateral agreement was to vary and annul the terms of the written instrument they could not be proved by parol testimony: Jackson v. Drakr, Jackson d If< Imcken, 37 S. C. It. 315. An [ ii I' is evidence of an account stated with the person who holds it ; and if another person was meant, the defendant must prove it : Feaenmayer v. Adcock, 16 M. & W. 449. In support of an account stated as set out in the declaration, the following memorandum was put in evidence: " $300 — Good to T. T. to the amount of .$300 to be paid to him or his order at E. C.'s mill in the township of Elma in the county of Perth, in lumber at cash price: signed, J. C, sen., J. C." Held, a sufficient acknowledg- ment of debt or liability and a promise to pay, and that it imported a sufficient consideration to sustain the account stated in the declara- tion : Tyke V. Vosford, 14 U. C. C. P. 64. Evidence of : A document which acknowledges a sum to be due at its date, but not payable until a future day, is evidence of an account stated: Armitage v. Vivian, 2 M. L. R. 360 (Man.). A promissory note given to an agent upon a settlement of accounts is evidence of an account stated with his principal, when the fact of agency was known to the other party : Rhodes v. Executors of Crawford, 1 U. C. R. 257. To support an account stated, it is necessary to shew a mutual understanding be- tween the plaintiff and defendant as to a balance struck or sum admitted: Larder v. Farquhar, et al.. 20 N. S. D. (8 R. & G.) 454: 9 C. E. T. 233 (N.S.). Acceptance of a bill of exchange is evidence of an account stated to the amount of the bill. In order to open a settled account it is necessary to particularize special errors in the account : Clark v. Hamilton, 5 Terr. L. R. 178. Interest is not chargeable upon such an account unless a fixed time for payment was agreed upon or a demand for payment was subsequently made, or upon an account indorsed shewing that the parties have themselves in adjusting their accounts allowed interest upon balances outstanding, though a jury might and probably would allow such interest as damages: George v. Green, 13 O. L. R. 189. 14 O. L. R. 190. An account stated by an executor of a debt due by his testa- tor never before ascertained or determined, is sufficient to charge the executor as a substantive debt, without any express promise to pay: Watkina v. Washburn, 2 U. C. R. 291. ACTION AGAINST INNKEEPERS. Generally, an action ex contractu for some breach of the con- tract, express or implied, which the innkeeper has entered into, or 296 ACTION AGAINST INNKEEPERS. professes to be ready to enter into with his guest in relation to his personal entertainment : Newcombe v. Anderson, 11 O. R. 665. An innkeeper at common law is answerable for the safe keeping of the goods of a guest, but it is only in respect of the goods of a guest that he is so liable. The common law liability has been limited by R. S. O. 1897, c. 187. s. 3; 190-1. c. 10. s. 44; 1907, c. 23, s. 17. By section 2 of that Act an innkeeper has a lien on the baggage and property of his guest for accommodation furnished, and has the right to sell the same after three months on giving one week's notice by advertisement. By section 44, chapter 10, 1904 (Ont.), an inn- keeper has also a lien on horses and vehicles. British Columbia, R. S. 1897. c. 98. Manitoba, R. S. 1902, c. 75 ; 1905, c. 19. Accidents by Fire in Hotels. Ontario, R. S. 1897, c. 204 ; 1899, c. 18; 1900, c. 44; 1909, c. 26, s. 20. Under R. S. O. 1897, c. 245, s. 122, where a person who is intoxicated is supplied with liquor, causing death, an action lies against the tavern-keeper supplying the liquor : see Crane v. Hunt, 26 O. R., at page 643. Where a traveller is shewn to have come to an inn as a guest, and to have stayed there six weeks paying for his board by the week two days in advance: Held, that if dismissed abruptly without cause he has a right of action against the landlord on the common law relation of innkeeper and guest. To put an end to this rela- tion the traveller must be shewn to have rented a certain apartment in the inn as tenant for a certain term: Whiting v. Mills, 7 TJ. C. R. 450. An innkeeper has the sole right to select the apartment for a guest, and if he find it expedient to change it and assign him another; he cannot be treated as a trespasser for entering to make the change: Doyle v. Walker, 26 U. C. R. 502. A guest who has been received loses the right to be entertained if he neglect or refuse to pay upon reasonable demand: lb. An innkeeper held not liable for neglecting to warn his guest of a fir<' breaking out in the building: see Hare v. Henderson, 46 U. C. R. 571. ligence of innkeeper: Palm v. Redd, 10 A. It. 03. Where a guest in a burning hotel is injured in consequence of the pr prietor having failed to provide the means of fire escape required by the .' e Act, an action for damages will lie against the proprietor, notwithstanding that a penalty is imposed for breach of the statutory duty. Groves v. Lord WUnborne (189S), 2 Q. B. 402, applied. The defence arising from the maxim volenti non fit injuria (the ruest beintr aware of the lack of means of fire escape, and ACTION AGAINST INN KM. 207 having made no objection), is not applicable where the injury arises from a breach of a statutory duty: Baddrley v. Earl Granville, 19 Q. B. D. 423, applied. The fad that the guest delayed his exit in order to rescue a fellow guest, and thereby lost his own chance of getting out safely, is not as a matter <>f law "contributory negligence." Whether the plaintiff did anything which a person of ordinary care and skill would not have done in the circumstances, or omitted to do anything which a person of ordinary care and skill would have done, and thereby contributed to the accident, was for the jury to decide: Love v. New FairvieiO Corporation, 10 B. C. R. 330. I.ynar v. .1/ossop, 36 U. C. R. 230 : Walker v. Bharpe, 31 U. C. R. 340. The common law liability of an innkeeper to receive and lodge a guest as a traveller, and the person who has been received at an inn as a traveller, does not necessarily continue to reside there in that character. If the guest has lost the character of traveller, the inn- keeper is not bound to supply him with lodging, but is entitled to give reasonable notice to require him to leave: Latnond v. Richard (1897), 1 Q. B. 541. The lien which the law gives an innkeeper on the goods of his lodgers is to be interpreted strictly, and the Judge cannot enlarge it even for equitable causes. An innkeeper cannot hold the goods of guests as security for medical expenses and advances of money made by him to his guest to enable him to continue his journey. A com- mercial traveller cannot pledge his employer's samples as security for his personal debt: Oilmour v. Snow. Q. R. 27 S. C. 39. Lien on wearing apparel of servanl limited: Ont. Stats. 1910, C. 26. sec. '.). Liability of, for want of fire escape: Hagle v. Laplante, 1 O. W. N. 413. The responsibility of an innkeeper for the safety of a traveller's property begins the moment the relation of guest and inkeeper arises. That relation arises as soon as the traveller enters the inn with the intention of using it as an inn and is received on that basis by the innkeeper and this is so notwithstanding the fact that some one other than the particular traveller is to pay for the accommodation received by him in the Inn: Wright v. Anderson, 7S L. J. K. B. 165; (1909 L 1 K. B. 209; 100 L. T. 123; 25 T. I . R. 156. An innkeeper, the bedrooms in whose inn are occupied, is not bound to receive a guest who desires to sleep the night at the inn: Browne v. Brandt. 71 L. J. K. B. 367: (1902), 1 K. B. 696; 86 L. T. 625; 50 W. R. 654. Overcoat lost in diningroom used by persons other than those sleeping at the inn (hotel) — liability of proprietor: Orchard v. Bush I 1898), 2 Q. B. 284. 298 ACTION AGAINST PAWNBROKER. Commencement of relationship, negligence, notice, special place provided for leaving effects : Fraser v. McOibbon, 10 O. W. R. 54. " Expressly " means that the bailor's intention must be brought to the mind of the bailee or his agent in some reasonable and in- telligible manner, so that he may, if so minded, insist on the pre- cautions specified therein. The appellant a commercial traveller, took to the respondent's hotel a bag containing valuable jewellry which he handed, in ac- cordance with long custom, to the respondent's servant, who knew him and his occupation. The bag was deposited in a place where it had frequently been placed on other visits of the appellant. It was stolen — that the respondents were not liable beyond 301 : Whitehouse V. Pickett, 77 L. J. P. C. 89; (1908), A. C. 357; 99 L. T. 367; 24 T. L. R. 766. LODGING-HOUSE KEEPER. A person who carries on the business of a boarding-house keeper for reward is bound to carry it on with reasonable care, having re- gard to the nature and normal conduct of the business as known to the guest or as represented to the guest by him ; and if by reason of a breach of that duty the luggage of the guest is lost, the boarding- house keeper is liable for the loss to the guest : Scarborough v. Cos- grove, 74 L. J. K. B. 892; (1905), 2 K. B. 805; 93 L. T. 530; 54 W. R. 100; 21 T. L. R. 754. ACTION AGAINST PAWNBROKER. By R. S. O., 1897, c. 188, s. 1, every person who takes or receives by way of pawn, pledge, or exchange any goods for the re- payment of money lent thereon shall be deemed a pawnbroker within the meaning of that Act. When goods are pawned with a pawnbroker, a written or printed memorandum must be given to the person pawning, containing a description of the goods, the amount advanced, the date, and names on presentation thereof and demand, entitled to the goods on payment of the pawnbroker's claim. Provision is made in the statute for sale of goods, and for re- covery of goods when illegally detained. A pawnbroker under C. S. C. c. 61, may legally charge any rate of interest that may be agreed upon between him and the pledgor : Regina v. Adams, 8 P. R. 462. Although the Court will not inter- fere with any bargain made by competent parties since the repeal of the usury laws for the payment of interest, still if any dispute as to such contract exists it is the duty of the Court to see that the parties to any agreement for payment of exorbitant interest clearly understood the bargain before effect will be given to it. Where, ACTIONS SlGAINM I \ i;l;l l.KS. 299 therefore, on the loan of money it was agreed to pay at the rate of two per cent, a month in advance, and the lender in making up the account contended that the agreement heing that it should be paid in advance was the same as two and one-half per cent, a month, and insisted upon his right to charge that sum; the Court directed the Master to allow at the rale of two per cent., the effect of the interest being payable in advance not having been explained to t 1 1 *» borrower: Teeter v. St. John, 10 Chy. 85. ACTIONS AGAINST CARRIERS.* In Respect of Carriage of Goods. Carriers may be of goods or of persons, or of both, and they may be carriers by land and by sea. A common carrier is a person who undertakes to transport from place to place, for hire, the goods of such persons as see fit to employ him. He is bound at common law to receive and carry all goods reasonably offered to him, and for which the person bringing the goods is ready and willing and offers to pay reasonable hire and reward: Pickford v. Grand .1 unction Ry. Co., 8 M. & W. 372. He is also an insurer of the goods against all accidents, except the act of God or the King's enemies, and whether the loss occurs by accident, robbery, violence, or the negligence of third persons. A carrier may limit generally his business to certain goods, and is then not obliged to carry other goods: Johnson v. Midland Ry. Co., 4 Ex. 3G7. Where the carrier delivers a ticket or other notice to the person from whom he receives the articles, specifying the terms on which he agrees to carry, and the customer assents, or does not dissent, the terms of the notice will establish a special agreement, and will ex- clude the common law contract so far as it is varied by those terms. If the customer in such a case declines the terms, and wishes to hx the carrier with the common law liability, he must tender or offer a reasonable compensation, and sue for the refusal to receive the goods: Garton v. Bristol. 30 I.. J. Q. B. 273. In an action for loss of or injury to goods, the plain- tiff must prove: 1. That the defendant is a common carrier; 2. The delivery of the goods for conveyance and the contract, if special; 3. The loss or injurv; 4. The damage. In an action for refusal to carry, the plaintiff will have to prove, besides the defendant's character as a common * See also "Negligence," post, for liabilities of Railway and other companies. 300 ACTIONS AGAINST CARRIERS. carrier, the tender of goods for conveyance and the refnsal of the defendant to accept the goods for that purpose, although the plaintiff was then ready and willing to pay a reasonable reward in that behalf. The action is one of tort for refusal to perform a public duty, whereby the plaintiff has sus- tained special damage. The plaintiff need not aver a strict tender of the fare; it is enough that he was ready to pay. But where the carrier has limited his liability unless a certain charge be paid, payment or tender of that charge must be proved: Wyld v. Pickford, 8 M. & W. 443. The proper person to sue as plaintiff is the person in whom the property was vested when lost or damaged. Hence generally the consignee is the proper plaintiff. The measure of damages is the market value of the goods at the time and place at which they ought to have been delivei'ed ; and if there is no market for the sale of such goods at the place, the jury must ascertain their value by taking their price at the place of manufacture, together with the cost of carriage and a reasonable sum for importer's profits : Viekera v. Wileocks, 2 Sm. L. Cas. 805. A common carrier is not liable for an injury to goods caused by an inherent latent defect in the goods themselves, the existence of which was unknown both to the sender and the carrier. The question of liability is not affected by the fact that, in the course of the transit, the carrier's servant may have done some act contributing to the injury: Litter v. Lancashire and Yorkshire Rail- way, 72 L. J. K. B. 385; (1903) 1 K. B. 878; 88 L. T. 561; 52 W. R. 12. By the Dominion Railway Act, passengers and goods must be conveyed on due payment of the toll, freight, or fare lawfully pay- able therefor. Tolls are provided for by the Act. Every person aggrieved by any neglect or refusal to convey has an action therefor against the company, from which action the com- pany shall not be relieved by any notice, condition or declaration, if the damage; arises from any negligence or omission of the company, or of its sen-ants. In spite of s. 24G (3) of Dominion Railway Act, 1888, a rail- way may enter into a special contract for the carriage of goods and limit its liability as to amount of damages to be recovered for loss or injury to such goods arising from negligence: Robertson v. (I. T. B., 24 S. C. It. 611. See Vogel v. G. T. R., 11 S. C. R. G12 ; Cobban v. C. P. R.. 26 O. R., at page 759; Robertson v. O. T. R., 21 A. R. 204. " Baggage " means not only personal baggage, such as every passenger is allowed to carry without extra charge, but also com- passengee's luggage. 301 mercia] baggage: Diwon v. Richelieu, 18 S. C. It. 704, affirming 15 .v. B. ti47. The responsibility of a railway company as carriers or warehom men discussed: Milloy v. G. T. R., 21 A. It. 401. Provisions arc made for interchange of traffic between companies. Connecting lines, misdelivery of goods: Grant v. .'. Pacific R. W. Co., 22 O. R. 645, sustained on appeal. 21 A. R. 322. Goods that are brittle or liable t< injury be af ly parked by the consignor, or the carrier will not be liable for injury done to them in carrying if he has used due care: Hart v. Baxendale, 16 r -. T., N. S. 390. Passenger's Luggage. On this point see Stewart v. London d- X. W. By. Co., 3 H. & C. 135, where it was said that a carrier undertakes no responsibility in respect of the goods of a passenger beyond that which he undertakes with respect to the passenger himself. In other cases it has been ruled that a carrier of passengers is liable to the ordinary obligations of common carriers: Stewart v. London was overruled in Cohen v. 8. E. Ry. Co., 2 Ex. D. 253 C. A. The rule may now be said to be that a carrier of passengers' personal luggage is liable to the ordinary obligations of common carriers. As to carrying merchandise as luggage, see Belfast, etc. v. Keys, 9 H. L. C. 556. A railway company is liable for the loss of a passenger's ordinary travelling baggage, but not for such articles as window curtains, blankets, cutlery, books, ornaments, etc., even when these are packed with the baggage for which they are liable. When goods remain at the station at which a passenger alights, but it does not appear that the railway company has charged, or is entitled to charge for storage, the company is not liable as warehousemen: McCaffrey v. The Cana- dian Pacific Railway Co.. 1 M. L. R. 350 (Man.). If a chartered ship be disabled by excepted perils from completing the voyage, the owner does not necessarily lose the benefit of his contract, but may forward the by other means to the place of destination and earn the freight : Owen v. Outerbridge, 26 S. C. R. 272. Wh shipper stores goods from time to time in a railway warehouse, load- ing a car when a carload is ready, the responsibility <>f the railway company in respect of such of the goods as have not been specifically set apart for shipment is not that of carriers, but of warehousemen. and in case of their accidental destruction by fire the shipper has no remedy againsl the company: Milloy v. Grand Trunk R. ~\Y. Co.. 21 A. R. 404: reversing 23 O. R. 454. It is the duty of a railway company to have luggage ready for delivery on the platform at the usual place of delivery until the 802 ACTIONS AGAINST CARRIERS. owner in the exercise of due diligence can call and receive it ; and it is the owner's duty to call for and receive it within a reasonable time: Vineberg v. G. T. R. Co., 13 A. R. 93. A railway company are not liable for merchandise carried by a passenger as luggage for which no extra charge is paid : Shaw v. Grand Trunk R. W. Co., 7 U. C. C. P. 493. The plaintiff purchased from an assent of the defendant company at Ottawa what was called a land seeker's ticket, the only kind of return ticket issued on the route for a passenger to Winnipeg and return, paying some $30 less than the single fare each way. The ticket was not transferable, and had printed on it a number of conditions, one of which limited the liability of the com- pany for baggage to wearing apparel not exceeding $100 in value, and another required the signature of the passenger for the purpose of identification and to prevent a transfer. The agent obtained the plaintiff's signature to the ticket, explaining that it was for the pur- pose of identification, but did not read or explain to her any of the conditions, and having sore eyes at the time she was unable to read them herself. On the trip to Winnipeg an accident happened to the train and the plaintiff's luggage valued at over $1,000 caught fire and was destroyed. In an action for damages tor such loss the jury found for the plaintiff for the amount of the alleged value of the luggage. Held, reversing the judgments in 15 A. R. 388, and 14 O. R. 625, that there was sufficient evidence that the loss of the luggage was caused by the defendants' negligence, and the special conditions printed on the ticket not having been brought to the notice of the plaintiff, she was not bound by them and could recover her loss from the company : Bate v. Canadian Pacific R. W. Co., 18 S. C. R. 697. Plaintiff travelling on a first-class travelling ticket on defendant's railway from Chatham to Toronto, took a travelling bag with him into the car, not having offered it to be checked, nor having been asked to do so, or to give it in charge of any of the defendants' servants. At the London station, where the train stopped for refreshments, he left it on his seat in the car to retain the place, and on his return from the refreshment room it was gone : Held, that the defendants were liable for the loss. Remarks on effect of custom of checking luggage: Gamble v. Great Western R. W. Co., 24 U. C. R. 407. The plaintiff was a passenger on one of the defendants' cars, occupying a sleeping berth. Before going to sleep he had undressed himself, and had put his pocket book containing iiis money in his trousers' pocket, rolling up his trousers and putting his braces around them, and then placed them under his pillow next tr.e wall. When he was called, before arriving at his place of destina- tion, he discovered that his pocket book and money were gone. No negligence in the defendants was shewn : Held, that no liability attached to the defendants : Stern v. Pullman Car Co., 8 O. R. 171. In an action against a common carrier for the loss of goods a jury CARRIERS BY WATER. 303 is not justified in giving a verdict of greater damages than the value of the goods actually proved to have been contained in the case, and the maxim omnia proBBumuntur contra tpoliatorem will not apply unless it is shown that the goods were in the defendant's possession, and that he had an opportunity but omitted to show their value: frmitli v. hunt, 2 Pug. (54 (N.B.). Where dogs were delivered to an express company to be carried to the city for the purpose made known to the company of being exhibited at a dog show, and were not delivered at the address given until ten hours after their arrival in the city, and were thus too late to compete, their owner was held entitled to damages against the company, including anticipated profits: Kennedy v. American Express Company, 22 A. It. 278. An express company is not bound to carry except according to its profession, and is entitled to discriminate as to its customers, and is not confined by any rule or regulation as to the charges it may make providing they are reasonable. An action by a rival company, which collected together small parcels, for the carriage of which it charges a rate much smaller than the defendants, an express company, did for similar parcels, packed them together in one large parcel and sought to compel the defendants at great loss to carry such parcel by size and weight rate, w:is dismissed: Johnson v. Dominion Express Com- pany, 28 O. R. 203. A person engaged to transport goods for hire is not by virtue of such engagement merely a common carrier : Bene- dict v. Arthur, U. C. R. 204. An express company that formally undertakes to forward goods is not a mere agent or intermediary between the shipper and the actual carriers. It is itself a common carrier, and, as such, liable for the safe carriage and delivery of the goods, and the onus of proof is on it to shew that loss of them is due to irresistible force or the act of God: Dominion Express Co. v. Rutcnbera, Q. R. 18 K. B. 50. That freight is payable according to mode of computation at place of lading: Melady v. Jenkins, 13 O. W. R. 439. Carriers by Water. Statutory Rules as to Liabilities of Carriers by Water are con- tained in sections 901 to 900 inclusive of R. S. C. c. 113, The Canada Shipping Act. These sections cover the subjects of conveyance of passengers, responsibility 0>r goods, loss or damage by fire, reponsi- bility as to gold or silver and for baggage of passengers. Special condition on ticket: Marriott v. Ycoward (1909), 2 K. B. 987. The liability of the carrier as regards articles carried on the per- son or in the passenger's personal custody is the same as that towards 304 ACTIONS AGAINST CAERIERS. the passenger, namely, to take reasonable care : Smitton v. Orient, &c, 96 L. T. 848. Delay in delivering cargo in reasonable time: Bauld v. Smith, 40 N. S. R. 294. Carriers by water not liable for the loss of jewels of passengers the nature and value of which have not been declared to them : Ivera v. R. and O. Navigation Co., Q. R. 35, S. C. 344. Terms of bill of lading do not empower delivery at pleasure nor shield from carriers' own negligence: Courian v. R. d 0. Nav. Co., 6 E. L. R. 229. Letter Carriers. Postmaster-Genera] is not a common carrier, but postmasters are liable for their own personal negligence. The Post Office Act, R. S. C. c. 06, enacts as follows : — 139. In any action, suit, or proceeding, against any postmaster or other officer of the post office of Canada, or his sureties, for the recovery of any sum of money alleged to be due to the Crown as the balance remaining unpaid of moneys received by such postmaster or officer, by virtue of his office, a statement of the account of such postmaster or officer showing such balance, and attested as correct by the certificate and signature of the accountant of the post office of Canada, or of the officer then doing the duties of such accountant, shall be evidence that such amount is so due and unpaiu as aforesaid, and in every such suit judgment shall be rendered for double the amount appearing by such account to be so due to the Crown by the defendant, but nothing herein contained shall be construed to prevent the provisions of the Consolidated Revenue and Audit Act from applying to such postmaster or officer. Passenger Carriers. Carriers of passengers are not insurers of the person, and are responsible only for want of due care: Christie v. Griggs, 2 Camp. 81. If a company allege that the passenger has not complied with the conditions of a by-law, they must prove that they have strictly ob- served the by-law on tbeir part. If in consequence of wrongful delay or erroneous information of carrier, passenger is reasonably obliged to hire another conveyance or stop a night on the road, the expenses may be recovered, but the jury cannot give general damages for loss of time, trouble, etc. : II obis v. L. d 8. W. R. Co., L. R. 10 Q. B. 111. The contract between a person buying a railway ticket and the company implies that such ticket shall be produced and delivered up to the conductor of the train on which such person travels; and if he is put off a train for non-delivery of it, the company is not liable 8T0P-0VBB in hi 305 to an action: G. '/'. R. v. Beaver, 'l'l S. 0. U. 498. Ticket "via direct line" discussed, and authority of a ticket seller to make representa- tions binding on the company upheld : Dancey v. (j. T. R-, 20 O. Ii. GO. - ',. A passenger rightfully travelling on liis ticket is not bound to leave the train at the condm . r, at the p til of not being able to recov< r damages for an assault committed in expelling him by foi . 19 A. R. iii page 672. Special conditions on a passenger's railway ticket must be brought to notice of passenger, or he will not be bound by them: Hat,- v. C. P. R., L8 S. C. R. 697, reversing 15 A. R. 388. The following provision has been made as to Stop-over Tickets, R. S. C. c 38. s. 9:— Every passenger who presents a single journey ticket upon a|;jghtof train within the time for which the conditions printed upon such stopping ticket and the date shows such ticket to be good for use, may apply bede- to the conductor of such train to have the privilege of stopping over manded granted, and the time for which the ticket is valid extended. 2. Such privilege and extension of time shall be granted by such To be conductor on tickets purchased at railway ticket offices in Canada, r ' :ui , t . y r ' conductor. from one place in Canada to another, or from a place in Canada to a place in the United States. 3. No such passenger shall be entitled to have such time ex- Distance tended for more than two days for every fifty miles of distance to limit. I c i ravelled in Canada. Semble, that in this country it is not the law that a passenger rightfully travelling upon his ticket is bound to pay fare wrongfully demanded or to leave the train on the conductor's order at the peril of not being able to recover damages for an assault committed in expelling him by force. The United States cases on the subjeel con- sidered and not followed. Judgment in 20 O. R. G03 (supra) varied: Dancey v. Grand Trunk R. II . Co., 1!> A. It. 664. Held, that by le of a railway ticket, the contract of the railway company is to convey the purchaser in one continuous journey to his destina- tion: it gives him no right to stop at intermediate station. Craig v. Great Western R. U". Co., 24 17. C. It. 509, Brigga v. Grand Trunk R. W. Co.. 24 U. C. R. 51, and Cunningham v. Grand Trunk R. W. Co., 9 I,. 0. Jur. ">7. 11 L. C. Jur. 107. approved and followed. Coomhs v. Tht Queen, 4 Ex. C. R. : } >21. 26 S. C. R. 13. K.E.— 20 PART II. Title II. ACTIONS ON WRONGS INDEPENDENT OF CONTRACT. ACTION FOR NEGLIGENCE. The omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing something which a prudent and reasonable man would not do ; and an action may be brought if there- by mischief is caused to another person not intentionally : Blyth v. Birmingham, 11 Ex. 781. Where the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendants that the accident arose from want of care: Scott v. London & St. Catharine Docks Co., 3 H. & C. 596. Quoted in Songster v. T. Eaton Co., 21 A. R. 624. To maintain an action for damages through negligence it is necessary to shew by weighty, concise and consistent presumptions, arising from facts proved in case of want of direct evidence, that the accident was actually caused by the positive fault, imprudence or neglect of the defendant : Montreal Rolling Mills Co. v. Corcoran, 2<> S. C. R. 597.. Although the mere happening of an accident is not in general prima facie evidence of negligence, and the plaintiff to bound to give some evidence in support of the defendant's negligence, yet the accident may be of such a nature that negligence must be assumed from the unexplained fact of the accident happening: Byrne v. Boadle, 33 T, J. Ex. 13. Where a statutory duty is imposed on a company, the company are liable for any damage caused to the property of another in conse- quence of the negligent performance of that duty, and the company cannot avoid liability by shewing that the negligence was that of an ind« -pendent contractor, employed by the company: McRury v. Do- minion Coal Co., 40 N. S. R. 89; McLean v. Dominion Coal Co., to- 90n. Evidence which merely supports a theory propounded as to the probable cause of injuries received through an unexplained accident is insufficient to support a verdict for damages where there is no .MTION FOB NEGLIGENCE. 'M)~ direct fault or negligence proved againsl the defendant, and the actual cause of the accident is purely a matter of speculation or conjecture: Canada Paint Company v. Trainor, 28 B. ( '. It. 352. Culpable negligence means actionable negligence. Where there Culpable is evidence of negligence it is misdirection to t<'ll the jury thai there negligence is no culpable negligence, though the question of negligence is left to them: McPherson v. ('it;/ of St. John, vol. :V2. 423 (N.B.). The fact that an accident litis occurred is not of itself evidence of negligence; the plaintiff must give affirmative evidence of negli- gence on the part of the railway company, and if the fact of negli- gence is left doubtful, the defendants are entitled to a verdict: Falconer v. European und North American Ry. Co., 1 Pug. IT'J (N.B.). If the principal cause of an accident is the want of care of the victim, that does not take away all recourse against the party who has contributed to the accident by his negligence. 2. The only effect of the victim's carelessness is to reduce the amount of damages wnich he may be awarded. 3. It is not necessary in order to estab- lish negligence in a party thai the law should have imposed upon him the duty of doing what he has not done; it is sufficient that ordinary prudence imposed the duty upon him: Jess v. Quebec and Levin Ferry Co., (>. R. 27> S. < '. 224. In an action founded on negligence, specific questions should be Specific submitted to the jury to enable them to state the special grounds on')' 1 ' which they find negligence or no negligence: Spencer v. Alaska Park- ers' Association, 35 S. C. K. 362. Where a chattel is lent gratuitously for beneficial use by the Dutj of borrower, it is the duty of the lender to communicate to the borrower ,' nr , chattel. any defect in it with reference to the us" for which the loan is mad". of which the lender is aware, and if he wilfully or by gross i. omits to do so he is liable for injury resulting from such defect to the borrower while using the chattel. Blackmore v. Bristol and Exeter Railway (27 L. J. <). B. 167; 8 E. & B. 1035) and McCarthy v. Young (30 L. J. Ex. l'l'T : ti II. & N. : , .-_ >, .»). approved. CoughUn v. OUUson, 68 L. J. <..>. B. 147; (1899) 1 Q B. 14f»: 1'.) I.. T. 627; 47 W. It. 113. To entitle a plaintiff to recover from a defendant, on the ground Estoppel. of estoppel, a loss occasioned through culpable neglect on the part of the defendant, the plaintiff must prove that the negligence complained of occurred in the particular transaction in which his loss arose, and also that such negligence was the proximate, direct, or real cans.- of the loss: Longman v. Bath Lit trie Tramn 74 L. J. Ch. 424; (1905) 1 Ch. 646; 92 !.. T, 743; 63 W. R. 480; 12 Manson 147: 21 T. L. tt. :',7::. 308 ACTION FOE NEGLIGENCE. Id, that the proprietor had no responsibility towards third pas-t-rs parties who might come upon his premises without invitation or with- out having business to transact there : Wiggins v. s< mi-Ready Clothing Co., 23 Occ. N. 117. A trespasser or bare licensee injured through negligence may maintain an action: Sivert v. Brookfield, 35 S. C. It. 494. Carrier. In the absence of evidence of gross negligence, a carrier is not liable for injuries sustained by a gratuitous passenger: Nightingale t. Union Colliery Co. of British Columbia, 35 S. C. It. 65. The action for damages for injury caused by negligence of a common carrier of passengers is in tort. A duty is imposed by law upon a common carrier of passi • carry them safely and securely so that no danger or injury shall happen to them by the negligence or default, of the carrier. A breach of this duty is one for which an ■i lies which is founded on the common law and requires not the of contract to support it. Corporations are liable for negligence whether they derive any ultimate pecuniary benefil or not from the irmance of the duty imposed on them: Kenney v. Canadian Paci- fic R. W. Co., 5 Terr. L. R. 420. Subse- In an action for negligence, it is not improper to receive evidence queutrem- as tQ what may nave been done by tne defendants subsequently to defect. remedy the defects or dangers complained of. but the jury should be warned that such evidence taken by itself is no evidence of negligence. li there is no other evidence of negligence, the case should be with- drawn from the jury: Toll v. Canadian ". W. Co., 8 W. L. R. 795, 1 Alta. L. R. 318. Prospects In an action for negligence, impairment of the prospects of "" matrimony, in the case of a young woman by reason of physical mony. *" .... injuries, may be taken into consideration by a jury in estimating the damages: Morin v. Ottawa Electric R. W. Co., 18 O. L. R. 209. Mere con- The question is whether the accident may be considered to be jecturein- ^ "necessary," "legal," or 'natural" consequence of the original sufficient. •" wrongful act. Was it the natural or probable result of that act/ Did it follow upon it in the ordinary course of events? In the absence of direct testimony there must be generally a great deal of mere ion as to the cause of injury. Mere conjecture will not answer it be based on proved facts on which the opinion is based: Wukclin v. London & S. W. R. Co., 12 App. Cas. 41; Badcock v. Ireeman, 21 A. It. 633. Causa The causa nine qua non of an accident is not that on which de- efficiens. pends the legal imputability of the accident; the liability depends not on that, but on the . [ON Fofe *OE. 809 unbroken by any nev and without wl rent would not have happened: Fottoood v. Toronto, 22 O. R. at p. 351. "Proximate cause" discussed: Pretooti v. ConneU, 22 S. C. R. at p. 14 7. In case of negligence it is not essential as in insurance cases that the proximate cause should alone be regarded. It is sufficient if an efficient cans,- of the thing complained of is found in some tortious acl of the defendant. A plaint ill' is not bound to prove negligence bej >nd i asonable doubt. Per King, J.: Rainnie v. The st. John City By. Co., vol. 31, 582 (N.B.). The jury found thai the fire originated from the defendant's engine but that the plaintiff had been guilty of negligence in storing the hay in such 'lose proximity to the railway: Held, that the jury had found the plaintiff negligent and as such negligence was the proximate cause of the damage ho could not recover: ('aims v. Can. A T or. Etc. Co. (1909), L' Sask. L. R. 19; '.» <'au. Ry. Cas. 306; 10 W*. L. R. 39. lies tpsa loquitur. A mere phrase, not a rule of law. Is only lies ipsa intended as a guide to the point in the evidence at which the burden of loquitur. proof is shifted. Negligence consists of two elements — the burden of proving both of which originally rests upon the plaintiff, namely, the duty to take care and its breach. The maxim has nothing to do with the former; and in the case of the latter only determines that when the plaintiff has proved the duty, and also a certain condition, of things causing or conducing to the injury complained of he has proved enough to call for explanation by the defendant — in other words the burden of proof is shifted: O'Brien v. Michigan Central R. R. Co., 1 O. W. N. 7. The defence embodied in the maxim volenti non fit injuria ts the Voltnti ■ whether stated by a master against his servant or by a landlord non tit tin una against his tenant: Cameron v. Young (1907), S. C. 475. Held. also, following Baddeley v. Earl Granville, 19 Q. R. D. fiat the maxim volenti nun fit injuria does not apply where an accident is caused by the breach of a statutory duty: Rogers v. Hamilton Cotton Co., 23 O. R. 425. On the trial of an action for damages in consequence of an employee of a lumber company being killed in a loaded car which was being shunted, the jury had found that "the deceased voluntarily accepted the risks of shunting," and that the death of the deceased was caused by defendants' negligence in shunting in giving the car too strong a push. Held, thai the vi rdict meant only thai had voluntarily incurred the risks attending the shunting of the cars in a careful and skilful manner, and thai the maxim volenti non fit injuria had no application: Smith t. Baker (1891), A. C. applied: The Canada Atlantic By. Co. v. Hurdman, 25 S. C. R. 205. 810 ACTION FOR NEGLIGENCE. Betpi ndeat Respondeat superior. — Where ;in injury is occasioned to superior, anyone by the negligence of another, if the person injured seeks to charge with its consequences any person other than him who actually caused the damage, it lies on the person injured to show that the circumstances were such as to make some other person responsible. In general, ii ; s sufficient for this purpose to show that the person whose neglect caused the injury was at the time when it was occa- sioned acting not on his own account, but in the course of his em- ployment as a servant in the business of a master, and that the damage resulted from the servanl so employed not having conducted his master's business with due care. In such a case the maxim respondent superior prevails and the master is responsible: Bartons- hill Coal Co. v. Reid, 3 Macq., Sc. App. Cas. 200; Crain v. Ryan, 25 o. R. 524. Acts of There is no duty imposed upon persons in dealings with others third t take precautions to prevent loss to the latter by the criminal acts of third persons, and the omission to do so is not in itself negligence in law. Judgment appealed from (27 Ont. App. R. 590) affirmed: J 'nip ' rial Hank of Canada v. Bank of Hamilton, 31 S. C. R. 344. Via major. Where fire destroyed his house, leaving walls dangerous, and defendant knowing the fact neglected to secure and support a wall or take it down, and some days after the fire it was blown down by a high wind and damaged plaintiff's house, defendant cannot shield himself under plea of vis major. Judgment appealed from (Q. L. R. 6 Q. B. 402) affirmed: Nordheimer v. Alexander, 19 S. C. R. 248. Damages must not be too remote: see (Jrinsted v. Toronto R. Co., 24 S. C. R. 570. Contribu- Contributory negligence rests upon the view that though the v'JZ" defendant has in fact been negligent, yet the plaintiff has by his own carelessness severed the casual connection between the defendant's negligence and the accident which has occurred so that the latter's negligence can no longer be considered the true proximate cause of the injury: Thomas v. Quartermaine, 18 Q. B. D. 685, quoted in Headford v. MeClary Mfg. Co., 23 O. R. at page 342. Latter case sustained. 24 S. C. It. 291. In an action by Judge and jury to recover damages for negligence where contributory negligence is set up as a defence, the onus of proof of the two issues is respectively upon the plaintiff and the defendant. Although the Judge is entitled to hold negatively that there is no evidence to go to the jury on either issue, he cannot declare affirmatively that either issue is proved. The question of proof is for the jury: Morrow v. C. P. R., 14 C. L. T. 240. Weir v. V. P. R., 10 A. R.. specially distinguished. The doc- trine of contributory negligence does not apply to an infant of tender age: Merritt v. Hepenstal. 25 S. C. R. 153. The issue respecting ai I KJ.\ FOB NEGLIG1 I 81 1 contributory negligence has to be proved by the defendant: Forvoood v. Toronto, 22 < ». R at page 359. The onus of proving contributory negligence <>n 'lie parr of the plaintiff rested on the defendants in the first instance, and in the bsence of evidence tending to that conclusion the plaintiff was not hound to prove the negative in order to entitle him to a verdict: U'akclin v. London and South-Western R. W. Co., 12 App. Cas. 41. To prove contributory negligence it is necessary for the defendants to shew that the plaintiff could by the exercise of such car.- and skill be was bound to exercise have avoided the consequence of the de- fendants' negligence: Bell v. Winnipeg Electric Street R. W 24 Occ. X 155. Contributory negligence may be a defence to an action for dam- s suffered in coi lence of a breach of a statutory duty. Grove$ v. Wimborne tlSitS) L» q. l'.. 41!), and licven on Negligence, pp. 633, 134, 6543, and the cases there cited, followed: ISreet v. Canadian Pacific R. W. Co., 18 Man. L. R. 334, 9 W. L. K. 558. When a wagon is left standing in the highway the owner cannot [ntoxic*- iefend himself by shewing that the person injured thereby was'" 1 " drunk: Ridley v. !. Times L. R. 177, distinguished. McKeegan T. Cape Breton Coal, etc., Co., 40 N. S. R. 566. The paid agent of a loan society, who professed to be skilled, and had a knowledge in the valuing of lands, was held liable ro the society for a loss sustained by them by reason of a false report ich agent. Silverthome v. Hunter, ~> A. R. 157, distinguished: Hamilton Provident and Loan Society v. Bell, 29 Chy. 203. A police officer is not the agent of the municipal corporation which appoints him to the position, and if he is negligent in per- forming his duty as a guardian of the public peace the corporation is not responsible: Mci'learc v. City of Moncton, 32 S. C. R. 106. ACTION FOB NK'ii [l An agent who invests money for his principal proper precautions as to the sufficiency of the security is guilt negligence, and if the value of the security proves less than the an inve ted he is lii ble to his principal for tie- loss occasioned thereby. 1'ne measure of damages in such a case is not I with interest, hut the difference between that amount and the annul value of the land: Lowenburg, Hani* d- Company v. Wolley, 25 S. C. R. 51. The Postmaster-General, being under no liability to his b for property bailed to him as Postmaster-General, cannot on behalf of the bailors recover f. >r the loss of the property bailed, the loss being caused by the negligence of a stranger. Claridge v. South Staffordshire Tramway Co.. 61 L. J. Q. P.. 503; (1S92) 1 Q. P. 422. followed. The Winkficld. 40 W. R. 68.5. An agister is not an insurer; he is bound to take reasonable Ag care, and is liable for injury caused by want of Buch car-: Pearce v. Sheppard, 24 O. R. 167. Liability of Ontario Commissioners for public park for not keeping fence in repair: Graham v. Commissioner » for Queen Victoria Niagara Falls Park, 16 C. L. T. 336. Liability of municipalities to repair buildings in public parks: Schmidt v. Town of Berlin, 20 O. R. 54. Defective sidewalk. Durochie v. Cornwall, 2:: O. R. 355, affirmed 24 S. C. R. 301. The question whether a highway is out of repair is a question for the jury. (See also Highway. Nuisance. ) Durochie v. Cornwall, followed: Ferguson v. Southvold, 27 A. R. 00. Ontario Statute is as follows: "All action^ municipal corporations for damages in respect of injuries sustained through the non-repnir of streets, roads, or sidewalks, shall hereafter be tried by a Judge without a jury, and the trial shall take place in the county in which the road, street, or sidewalk is constructed." Notice under Ontario Act. want of. must be set up in pleading: Longbottom v. Toronto. 10 V. L. T. 87. It appeared that the city was not prejudiced by the want or notice: Held, that the street was out of repair, so as to render the city liable to the plaintiff; and that, under the circumstances, the plaintiff had shewn sufficient excuse for not giving the notice. O'Connor v. City of Hamilton. 10 O. L. R. 536. distinguished: Vorri- son v. City of Toronto. 12 O. L. R. 333, 7 O. W. R. 547. 607. Held, that when the normal condition of a sidewalk is disturbed, Sid It is the primary duty of a municipality to see that in its altered state it is kept in proper repair, and in a busy and much frequented place in excellent repair; and that when the source of danger has existed in :i crowded street of a city for two weeks or even somewhat less, notice of the want of repair and of dangerous condition will be attributed to the authorities: Gigncc v. City of Toronto, 7 O. W. R. (86. 314 ACTION FOR NEGLIGENCE. See as to a street crossing: Drennan v. Kingston, 23 A. R. 406. Damages caused by negligent construction must be borne in case of drainage improvements by those assessed: Sombra v. Chatham, IS A. B. 252. Contractor negligently leaving obstacle on highway caus- ing accident is liable: Hoivarth v. McGugan, 23 O. R. 396. f of A notice of action to a municipal corporation in respect of a action. claim arising out of a defective sidewalk is sufficient if it states the cause of the accident, together with the name of the street, and the particular side of the street, and reasonable information as to locality, so as to enable the corporation to investigate. It is not necessary to mention the exact locality: McQuillan v. Town of St. Mary's, 31 O. R. 401. Where an object is left over night on the highway unlighted and unguarded (in this case a building in process of removal) which is calculated to frighten horses, and by which a horse is frightened and an accident results; and where the municipality, though having notice, have taken no precautions to warn travellers, they are liable in the absence of contributory negligence; but are entitled to be indemnified by the person who placed the obstruction on the highway: Rice v. Town of Whitby, 28 O. R. 598. See S. C. 25 A. R. 191. A municipal corporation invested with statutory powers to develop or manufacture a dangerous substance, e.g., inflamable gas, is not liable in the same way as an individual without proof of negligence, tor damages occasioned by the escape or explosion of such substance. Fletcher v. Rylands, I,. R. 1 Ex. 265, L. R. 3 H. L. 330, dis- tinguished. Purmal v. City of Medicine Hat, 7 W. L. R. 437, 1 Alta. L. R. 209. Mercantile Persons carrying on a mercantile agency are responsible for the agency. damages caused to a person in business when by culpable negligence, imprudence, or want of skill, false information is supplied concerning his standing, though the information be communicated confidentially to a subscriber to the agency on his application therefor. See Q. L. R. 3 S. C. 345: Cossette v. Dun, 18 S. C. R. 222. The defendant hired Stranger's nv fne day the general servant and horse and waggon of another servant. company for use in its business, and while so hired the servant in carrying a load of glass knocked a man down and seriously injured him: Held, reversing the judgment appealed from (26 Ont. App. R. 63) that the defendant was not liable in damages for the injury; that the driver remained the general servant of the company from which he was hired and not that of the defendant : Consolidated Plate Glass Co. v. Caston, 29 S. C. R. 624. Mortgagee A mortgagee in possession who sells the mortgaged goods in a n-ckless and improvident manner is liable to account not only for what he actually receives, but for what he might have obtained for ACTION FOR NBGLIG1 315 the goods had he acted with a proper regard for the interests of the mortgagor: Rennie v. Block, 26 s. C. It. :<"»*;. Bailment — Stablekeeper — Injury t<> horse Liability of keeper for negligence: Templeton v. Waddington, 14 M. L. K. 486. An action will lie against an auctioneer for selHng goods at a Auction ruinous sacrifice, if the jury And that h<' has acted negligently and eer. disregarded his duty: and it is no misdirection to t«'li the jury that the low price obtained is evidence t<> go to them of negligence: Cull v Wakefield, 6 O. S. ITS A tradesman's teamster senl out to deliver parcels went to his jVamster supper before completing his delivery. He afterwards started to hnisfa his work, and in doing so ran over and injured a child: Held, affirming the decision appealed from (33 X. B. Rep. 91) that from the moment he had started to complete the business in which he had been engaged he was in his master's employ just as if he had returned to his master's store and made a fresh start: Merritt v. Hepenatal, '2~> S. C. R. 150. In a suit against the sheriff and an execution creditor in respect of an alleged irregular levy under writ of execution, the sheriff is not obliged to interplead, but may be Sheriff properly joined in a defence with the execution creditor. A solicitor advising his client according to the established jurisprudence of the Court in which proci are taken is not guilty of actionable negligence, although the decision upon which he relied in giving the advice may be subsequently overruled : Taylor v. Robertson, 31 S. C. R. 615. An action on the case lies in favour of a sheriff against a bailiff Bailiff. for negligence for allowing a prisoner to escape in consequence of which the sheriff is sued by the creditor, and a verdict recovered LSI him for nominal damages; and semble, that in such an action the sheriff is allowed to recover both the cos's of the action against himself and his own costs, although no none of that action had been given to the bailiff by the sheriff, the bailiff not being concluded by the former verdict if he had no opportunity of defending in the sheriff's name: Ruttan v. Shea, 5 Y. V. R. 210. T'nder the plea of not guilty the bailiff can only prove that he was not guilty of the negligence. He cannot give in evidence any special contract of ser- vice. The proper measure for damages being the pecuniary value of the custody at the moment of escape: Mr want . 1897, c. 166, s. 8, by the person bene- tieially entitled, though brought within six calendar months from the death, unless there be al the time an or administrator of the deceased: Lampman v. Township of Gainsborough, 17 O. R. 101. NEGLIGENT DRIVING OF CARRIAGES. \ master is not answerable for the wilful and malicious act of ervant: M'Manus v. Crickett, 1 East 106. Where the injury is the result of mere accident, do action lies. To maintain an action, the act must have been wilful or the result of negligence: Holmes v. Mather. L. R. in Ex. 261. fn i I the master to damages ir ntu- thai there has been something to •> the part of his servant, and he is blameable if he has hest and soundest judgmenl on tne subji llett, 2 S 39. 318 ACTION FOB NEGLIGENCE. Occupant The doctrine that the occupant of a carriage is not identified of carriage as j negligence with the driver applies only where the occupant is a mere passenger having no control over the management of the carriage. Where, therefore, the hirer of a carriage allows one of his friends to drive and an accident results from the latter's negli- gence, the former cannot recover: Flood v. Village of London West, 2:; L R. 530. Horses, In an action for damages for injury to a verandah on a street damage t<>. l)y runaway horses, the question of negligence is for the jury, but what facts may by them be considered is a question of law: Sandi- lands v. Bathgate, 9 L. J. 328. Tt is not negligence per se for the driver of a horse of a quiet disposition standing in the street, to let go the reins while he alights from the vehicle to fasten a head weight, there being at the time little traffic and no noise or disturb- ance to frighten the animal ; and the owner of the horse is not responsible for damages caused by the horse in running away when frightened by a sudden noise just after the driver has alighted : Sullivan v. McWilliam, 20 A. R. G27. The mere fact that a horse while being driven along the highway uas been frightened by the whistle of a steam engine used by the de- fendants for the purpose of their lawfully operated waterworks is no! sufficient to make them responsible for damages resulting from the horse having run away. Some positive evidence of negligence in the us., of the whistle must be given, or at least some evidence that its use might be expected to cause such an accident so as to cause it to be a nuisance to the highway: Roe v. Village of Lucknow, 23 A. K. 1. Runaway The plaintiff while walking on a sidewalk was knocked down and injured by a runaway horse of the defendant. At the time of the acci- dent the horse was harnessed to a sleigh, but no person or driver was in the sleigh, and all that was proved was that the horse was seen running away; that the sleigh upset, the occupants were thrown out, and that the horse ran on the sidewalk and the accident occurred: Held, that this was sufficient to make out a prima fane case of negligence, and that the onus of disproving that case and explaining the cause of the runaway lny upon the defendant. Mazoni v. Douglas, 6 Q. P». D. 14.", discussed: Crawford v. Upper, 1G A. R. 440. Nervous Damages for injuries resulting from a nervous shock caused by shock. fright may be recovered in an action for negligent driving although there may be no actual physical impact upon the plaintiff's person: Victorian Railways Commissioners v. Coultas (57 L. J. P. C. 09; 13 A pp. Cas. 222), discussed and not followed: Dulieu v. White, 70 L. J. K. B. 837; (1901), 2 K. B. 669; 85 L. T. 126; 50 W. R. 76. Sow. The finding of the jury that the sow was likely to cause the horse to shy, took the case oui of the principle of Cox v. Burb'd>i>- NEGLIGENT NAVIGATION. 819 (32 I.. •/. C. I'. 89; i:: C. B. (N.S.) 430) and on that finding the plaintiff would have been entitled t<> succeed if contributory neg ligence on his pari had been negatived; but, inasmuch as the jury bad I d unable to agree upon tnal point, there musl be a new trial: Higyins v. Searle, 72 J. I'. 449. NEGLIGENT NAVIGATION OF SHIPS. The liabilities under this heading are governed by the Merchant Shipping Act — 17 an.l 18 Vict., c. 104; IS and 19 Yin., c. 91; 25 and 2<> Vict., c. 63; 30 and 31 Viet., c. 124: and 36 and ::7 Vict., c. 85 (1854, 1855, 1862, 1873). The Dominion Government has also laid down a code of rules contained in R. S. C, c. 7.",. "An Acl respecting Navigation in Canadian Waters." 'Tin' steamer "Chase" was lying at her wharf in the Harbour Steamer of Halifax, when a storm of unusual violence arose with miivhii-- 1 "''' 1 ' 1 " 1 ^ :iW aj dmary suddenness, there having been no other indication of its ap- proach than a falling barometer. Some additional precautions were taken so to moor her that she might ride out the storm safely, hut these did not prove adequate, and hreaking away she came into collision with several wharves, among them the plaintiff's, causin ■ serious damage thereto. It appeared in evidence that other and more efficient methods might have been used to secure tin- steamer, and that had they been employed the probabilities were strongly in favour of her remaining fast t 1P her wharf: Held, thai she was liable for the damages done: The "Chase" V. A. !>. 113. Affirmed on appeal to the Privy Council, Y. A. D. 125 (N.S.). Excusable manoeuvres executed in " agony of collision " brought Agony of aboul by another vessel cannot he imputed as contributory negli- gence on the part of the vessel collided with. The rule that in nar- row channels steamships shall, when safe and practicable, keep to the starhoard (art. 21) does not override the general rules of navi- gation. Thr Leverington (11 P. I>. 117). followed: The <'ub protec- tion of lives and property in navigation and are so strictly enforced that even where a vessel commits a comparatively venial error it cannot be absolved from the consequences. The rules of the road must be strictly observed, and when they are violated by both vessels the Court will hold them equally liable: Canadian Lake and Ocean Navigation Co. v. The "Dorothy;' 10 Ex. C. R. 103, 7 O. W. R. 621. King's Where a collision occurs between a ship belonging to a subject ship. a nd one belonging to the King, the King's ship is not liable to arrest for damages; and in the absence of statutory provision therefor no action will lie against the King for the negligence of his officers or servants on board of the ship : Paul v. The King, 9 Ex. C. R. 245. I [ oss Where a collision results in a total loss of a vessel which is ire of under successive charter parties, the measure of damages properly includes the profit which the owners would have made if the chart- ■ red voyages had been accomplished, less a reasonable sum to cover contingencies: The Kate (68 L. .7. P. 41; (1899), P. 165) affirmed. Principle of The Argentino (59 L. J. P. 17; 14 App. Cas. 519), ap- plied: The Racine. 7. r , L. J. P. 83: (1906), P. 273; 95 L. T. 597; S2 T. L. R. 575; 10 Asp. M. C. 300. Tug and The rule that where a vessel is being towed " the tug is servant of the tow," does not apply to the case of a steam-barge towing two other barges, the whole under the control of those on board the !-barge. A steam-barge towing two barges, not exhibiting her regulation lights before sunrise, having no proper look-out, too great a length of tow-line, no additional tug to assist and proceeding on an improper course in view of obstacles ahead, is liable in damages for a collision that takes plaeo in consequence: Hfontrral Harbour Commissioners v. The "Ban State," O. R. 31 S. C. 10. NAVIGATION — COLLISION. 321 When a vessel in motion collides with a vessel at rest the pre- Ve^-el at sumption is that the former is in fault , and this presumption will ' nut be overcome by proof that the colliding vessel was compulaorily in charge of a pilot, unless it is also proved thai the collision was due to the fault of the pilot: Mann, Maoneal d Co. v. Ellerman Lines, 7 F. 213. A schooner "hove-to" with her wheel made fast by a beckett Schooner which could be removed instantly, her look-out and wheelsman prop- " '"*'' ' l "- erly stationed, and maintaining a steady course, is not, with reference to such circumstances, open to the charge of being negligently navi- gated. 2. A vessel without a sufficient look-out has the burden cast upon her of proving that such fact did not contribute to the collision. 8. Apart from the regulations, in a case of impending collision, it is negligence for a steamship to fail to slacken speed, or to stop, or reverse, if such manoeuvre is necessary to avoid collision. 4. Where the defendant's preliminary act alleged that at a certain point the hearing of the ship at fault was "a little abaft the starboard beam," of the injured ship, evidence was admitted to shew that the line of approach was not more than two points abaft, or was forward of I he beam of the injured vessel. 5. The wrong-doer cannot recover salvage remuneration for services rendered to the ship with which he has been in collision : Magdalen Islands S.S. Co. v. The " Diana." II Ex. C. R. 40. A common carrier is liable for the negligence of his servants in KVceipt of taking goods on board his vessel in his absence, though he may havePoo^s. directed them not to receive goods — the plaintiff having no notice of such instructions: Street v. Morrison. 5 All. 296 (N.B.). Held, that a master may among other duties delegate to another Selection the duty of selecting fellow workmen or servants, and that in such of servants a case the master's obligation is limited to the exercise of a reason- able care in selecting a competent person for such purpose. In an action against defendants, the owners of a vessel, for employing in- competent sailors, whereby an accident happened to the plaintiff, it appeared that the duty of hiring the sailors had been delegated by the owners to the captain, a competent person for such purpose, and that he had hired the men in question: Held, that the defendants were not liable: Wilson v. If time. 80 V. C. C. P. 542. The owner of a chartered ship, in herself seaworthy, but rend- i,„|, r ,,p eI ered unseaworthy by the improper loading of cargo and ballast loading. which is carried our under his orders, is liable for damage occasioned by his personal negligence: ftty of Lincoln v. Smith. 78 L. J. I'. C. 45; (1904), A. C. 250; 01 1.. T. 206; Asp. M. C. r>S0. K.F.— 21 322 ACTION FOB NEGLIGENCE. Towage Whore a towage contract is made, it implies an undertaking contract. lnat eflcn party will duly perforin his share of it ; that proper skill and diligence will be used on board both tug and tow; and that neither party by neglect or mismanagement will create unnecessary risks to the other or increase any risk which might be incidental to the service undertaken. 2. If, in the course of the performance of the contract any inevitable accident happens to the one, without any default on the part of the other, no cause of action will arise: The Julia, 14 M.. P. <\ 210 at p. 230, followed; Read v. The " lAllie," 11 Ex. C. It. 274. Ship 1. When a ship founders at sea without any one knowing the oundenng cause) there is a presumption that the disaster is the result of an unseaworthy state. Where the owner sets up accident or vi* major, he is bound to prove it. 2. The owner of a ship warrants its navi- gability to the crew and is not released from the responsibility which proceeds from this warranty by an inspection of the ship made ac- cording to the terms of s. 587 et seq. of K. S. (<. 1900, c. 113. Statutes affecting civil responsibility being beyond the competence of the Federal Parliament, the reservation in s. 342 of the same chapter touching the sending of ships to sea " reasonable and justifi- able " applies only to the criminal consequences of the sending ships to sea in an unseaworthy state: Orenier v. Connolly, Q. R. 34 S. C. 405. Towing. A vessel which contracts to do her best to tow another to a named port, and, after honestly attempting so to do, fails through no fault of her own, is entitled to remuneration: The Benlarig (58 U J. P. 24; 14 P. I). 3), followed. The August Korff, 72 L. J. P. 53; (1903), P. 166; 89 I, T. 194; 9 Asp. M. C. 428. Sunken ^ le owner of a vessel, sunk in the fair-way of a navigable river, wreck. so as to be a danger to other vessels, who retains the possession, management and control of the wreck, is under an obligation to take reasonable care to warn other vessels of its position, and is liable for damage to another vessel occasioned by the neglect to give proper warning, though such neglect was that of an independent contractor employed by him: The Snark, 09 L. J. P. 41; (1900), P. 105; 82 L. T. 42; 48 W. R. 279; 9 Asp. M. ('. 50. Wrong Where a ship is pursuing a wrong course and has notice from course. another vessel that the latter is continuing on her course, the former must be held solely to blame for a resultant collision, and it is no defence to say that the other vessel by observing lights and heed- ing blasts might have deviated from the right course which she was pursuing and thereby avoided the collision : The (Jhittagong, 70 L. J. P. C. 121; (1901), A. C. 597; 85 L. T. 430; 90 Asp. M. C. 252. Uonverg- Vessels converging on a spot on courses and at speeds which ing courses preS ent danger of collision are crossing vessels, and in the event of NEGLIGENT KEEPING OF ANIMALS. 323 collision th«- vessel which has the other on the starboard Bide, and haa failed to keep out of the way of the other, is to blame under article 19 of the Canadian Regulations for Preventing Collisions at Sea: 'l'hr AlbatlO v. \llnn Line Struma hi/, Co., 76 (.. J. P. C. 33; (1907), a. c. 193; '.»<; i.. T. 335; lo Asp. M. C. 365; •-'." , . T. K. B. 344, When s licensed pilot is employed on hoard a vessel in a place Lioensed while pilotage is compulsory, it is his duty to insist on having the I"'" t - effective control >>( the vessel, or to decline to act as pilot; and if he is ordered by the master to place himself in a position disadvan- tageous for the effective control of the vessel, and he acquiesces in tip arrangement and continues to act as pilot, he will not escape responsibility lor damages to another vessel: Greenock Towing Co. V. llardir, 4 F. 215. The owner of a chattel who is wrongfully deprived of its use Depriva- may recover substantial damages for the deprivation, though he may t '°" ," ie of vessel. nave incurred no out-of-pocket expense consequent thereon. Where, therefore, a vessel is disabled by a collision with another, which is to blame, the owners of the latter are liable in substantial damages in respect of the withdrawal from service of the disabled ship, not- withstanding that the owners of the latter have a vessel in constant readiness to supply the place of any which may happen to ue injured : The City of Pekin (59 L. J. P. C. 88: 15 A pp. Cas. 438), distin- guished: Thr Ifrrfiano, fi9 L. J. P. 35; (1900), A. C. 113; 89 L. T. 95; 48 W. R. 398; Asp. M. C. 41. NEGLIGENT KEEPING OF ANIMALS. The owner of an animal which is ordinarily vicious, as a lion or a bear, is liable generally for its acts of ferocity, for he is bound to keep it secure at his peril: but the owner of a domestic animal, as an ox or a dog, is only liable if he knows that the animal is accustomed to do mischief. Under R. S. O. 1897, c. 271, s. 9, any person may kill any dog which he sees pursuing, worrying, or wound- ing any sheep of lamb. See also chapter 77. Out. Statutes. 1910. By section 15 the owner of any sheep or lamb killed or injured by any dog is entitled to recover the damage occasioned thereby from the owner or keeper of such dog by action or by summary pro- ceeding, and die knowledge of the owner or keeper of the dog as to its viciousness need not be proved. The gist of the action is not the negligent keeping, but the keeping with the knowledge of the mischievous propensity, i.e.. the scienter. See Chase v. Mi Donald, 25 i . C. C. !\ 129; Mason v. Morgan. 24 V. < '. R. 328. The right of action given by R. S. O. 271, s. 15. to the owner of sheep killed by dogs, must be prosecuted with the usual procedure in the appro priate forum. If properly tried in the County Court it may be tried 324- ACTION FOR NEGLIGENCE. before a jury, and they then apportion the damages : Fox v. William- son, 20 A. R. 610. The owner of sheep killed or injured by a dog can under R. S. O. 1897, c. 271, s. 15, recover the damage occasioned thereby without proving that the dog had a propensity to kill or injure sheep ; and the act applies to a case where the dog has been set upon the sheep: liegina v. Pcrrin, 16 O. R. 446. The defendant placed a large number of hives of bees upon his own land within 100 feet of the plaintiff's land. While the plaintiff was at work with two horses upon his own land, the bees attacked and stung the horses so that they died, and also stung and injured the plaintiff. In this action to recover damages for his loss and in- jury, the jury found inter alia that the bees were in ordiuary flight at tne time of the occurrence, that they were the defendant's bees, and that the defendant had reasonable grounds for believing that his bees were, by reason of the situation of his hives or their numbers, dan- gerous to persons or horses upon the highway or elsewhere than on the defendant's premises : Held, that the doctrine of scienter, or notice of mischievous propensities of the bees, had no application, nor could the absence of negligence, other than as found by the jury, relieve the defendant ; it. was his right to have on his premises a reasonable number of bees, or bees so placed as not unfairly to interfere with the rights of his neighbour, but if the number was unreasonable, or if they were so placed as to interfere with his neighbour in the fair enjoyment of his rights, then what would otherwise have been lawful became an unlawful act; the finding of the jury meant that the bees because of their number and situation were dangerous to the plaintiff, and the defendant was liable for the injury flowing directly from his unlawful act: Lucas v. Pcttit, 12 (). L. R. 1906. Animals Running at Large. — Held, that the colt in question in this case, five weeks old, following its dam, could not be said to be running at large; the universal custom of the country, which ought to govern, being for colts thus to follow the dam: Ilillyard v. Grand Trunk R. W. Co.. S O. R. 5S3. TTeld, that evidence of the common use of barbed wire fences in other townships, and that other municipalities held out inducements to erect them, should not have been rejected, as shewing that they were not considered dangerous or a nuisance : ib. The owner of an animal, being liable for injuries caused by the animal, is presumed to be at fault, but he may escape liability by infj that the injury was due to the fault of the victim: Martin v. Hogg, Q. R. 31 S. C. 529. The owner of a turkey cock, which, without negligence, strays upon the highway contrary to a by-law of the municipality, is not liable for damnges resulting from a horse taking fright and running \K':i [GEN l Q8E OF LAND. 325 away at the sight of 1 1 1 . - bird acting as turkey cocks usually do: Zumttein v. Shrutnm, 'SJ A. Et. 263. Owners of animals in litis province allowing them to run at largo, must ta*e the risk of accidents from ill-constructed <>r insuffi- ciently constructed fences. Tims the owner <>f unenclosed or insuffi- ciently enclosed lands would be liable for damages resulting to estrays by reason of a dangerous trap (e.g., an unenclosed well on his property) : McLean v. Rudd, 1 Alta. L. Et. 505; 9 VV. L. It. -js:;. The person who keeps a savage dog with knowledge of its nature is responsible for any injury it does to another person notwith- standing that it was caused by dm intervening voluntary act of a ttiird person. The owner is bound to keep such an animal secure at his peril. The prima facie liability of the owner in such a case does not extend to injury brought about by the intervening voluntary act of a third person, at all events if the act be one of a criminal nature : Baker v. Snell, 77 L. J. K. B. 1000; (1908), 2 K. B. 825; 24 T. I.. Et. 811— C. A. The owner in default in respect of the maintenance of his part of the line fence between two adjoining farms is responsible for the loss of animals of his neighbour, which, passing through a breach in the fence, reach a railway where they are killed by a train : Paradis v. Parks, Q. R. 32 S. C. 263. In order to render the owner of a dog liable for a bite by the dog it is not necessary to shew that the dog has. to the knowledge of its owner, actually bitten or attempted to bite anybody. It is suffi- cient to prove that the dog is to the knowledge of its master ferocious in regard to human beings. Such ferocity may be of an intermittent character, as. for instance, when a bitch has pups: Barnes v. Lucille, 96 L. T. 680 ; 23 T. I.. It. 389. Animals Fercr Xatura>: Brady v. Warren (1900), 2 Ir. R. 632. Negligent keeping of animals — Bees: O'Oorman v. O'Oorman (1903), 2 Ir, It. 573. NEGLIGENT USE OF LAM). See "Nuisance" and "Disturbance of Support of Land." Where the unavoidable consequence of a lawful act done by a person on his own land (such as the erection of a mill dam) is to injure his neighbour, an action lies for such injury, hut not if such act per se would not be necessarily or probably injurious, but be- comes so from a cause not under the control of either party. Negli- gence must then be proved to render a defendant liable: Peters v. Devinnep, 6 V. C. C. P. 3S9. If the owners of property allow it to be open to all comers, infants as well as children of maturer age, and place upon it a 3:26 actions for negligence. machine attractive to children and dangerous as a plaything, they may be responsible in damages to those who resort to it with their tacit permission, and who are unable in consequence of their tender age to take care of themselves: Cooke v. Midland Great Western Railway, 78 L. J. P. (j. 76: (1009), A. C. 229; 100 L. T. 626; 53 S. J. 319; 25 T. L. R. 375. A person who intends that others shall come upon property of which he is the occupier or controller, for purposes of work or busi- ness in which he is interested, owes a duty to those who do so come to use reasonable care to see that the property and the appliances upon it, which it is intended shall be used in the work, are fit for the purpose to which they are to be put ; nor does he discharge this duty by merely contracting with competent people to do the work for him: Marney v. Scott, 68 I,. .7. Q. P. 7.36; (1899), 1 Q. B. 986; 47 W. R. 666. If the public enter upon private ground without invitation they take the risk of injury; but if there is a hole or a pit near a public road there may be a duty of the owner or occupier to fence it: Devlin v. Jeffray's Trustees, ~» F. 130. Where a person uses his land for any purpose for which it may in the ordinary course of the enjoyment of land be used, and without any default or negligence on his part damage happens to his neighbour's premises, no liability attaches to him. Further, if a person claiming to be compensated for damage caused by dangerous- matter upon his neighbour's land has consented to such dangerous matter being brought upon his neighbour's land, lie cannot recover: Blake v. Wolfe, 67 L. J. Q. P. 233: (1905), 1 K. P. 472; 92 L. T. 414: 53 W. R. 262: 21 T. L. R. 266. The owner of property abutting on a highway is under a positive duty to keep it from being a cause of danger to the public by reason of any defect either in structure, repair, or use and management, which reasonable care and skill can guard against: Roberts v. Mit- cnell, 21 A. R. 433. An obligation may arise by implication from "invitation" by A. to use premises: Heaven v. Pender, 11 Q. R. P. 503 — C. A. A person entering upon premises for his own purposes and without the knowledge of the occupant does so at his peril: Rogers v. Toronto Public School Board, 23 A. R. 597. When a man brings or uses a thing of a dangerous nature on his own land, he must keep it in at his own peril, and is liable for the consequences if it escapes and does injury to his neighbour: Fletcher V. Rylands, L. R. 1 Pxch. 265: 3 H. L. 330. This principle discussed: Roe v. Lucknow, 21 A. R. 1 ; Brown v. Eastern and Midland R. W. Co., 22 Q. P. P. 391. referred to. The proprietor who first builds a house wall, intended to become common, has a right to establish the base of the wall on the first ti ENT Ki.i I'I.nc OF FIRE. 327 ifficiently strong to support the wall which be intends to con- struct, ami is not obliged to x<> deeper, although his ueigbbour may require a greater depth and may offer to bear t tie cost of the increased excavation and masonry. It' the neighbour desires to have a heavier building, necessitating a deeper foundation, be must make the under structure at his own expense: Roy v. Strubbe, Q. K. L'l S. C. 520. NEC LICK XT KEEPING OF FIRE <>K INFLAMMABLE MATTER. A railway company is not responsible for accidental fires if they have taken every precaution that science can suggest to prevent in- jury: they are only liable if guilty of some negligence in fact, and negligence cannot be implied from the mere employment of loeoino- tives where the use of them has been expressly permitted by the legislature: Vaughan v. Tuff VaU Ry. Co., 5 II. & N. <'7'.». See Mc- t+ibbon v. Northern, 14 A. R. 91; McLaren v. Canada Central, 8 A. R. 564. The defendant is not entitled to deduct from the damage sus- tained money received by the same plaintiff under a fire policy. By R. S. O. 1S97, c. 267. "An Act to Preserve the Forests from Destruction by Fire,*' fire districts may be proclaimed. After such proclamation precautions must be observed, which are fully set out in the Act. Actions for contravention of the Act must be brought within three months after the contravention. See 1906, c. T.i: 1908, e. 61. Where fire has be< □ properly set out by a person on his land for the necessary purposes of husbandry, at a proper place, time and season, and managed with due care, he is not responsible for damages "ned by it. The defendant on afterwards discovering the fire, though he could easily have put it out after confining it to one spot, left it anticipating no danger, and after burning for four or five days the fire spread to the plaintiff's premises and destroyed his barn with a quantity of grain and hay. The Court considered that the prin- ciple and doctrine established in Fletcher v. Rylands, I.. R. 3 IT. L. 330, and Jones v. Festiniog R. W. Co.. I.. R. :; Q. I*. 7:'". applied and that the defendant was liable for the damages sustained by the plaintiff even in the absence of actual negligence. Gaston v. Wald, 19 T\ C. TI. 586, doubted: Furlong v. Carroll, 7 A. R. 145. A man must exercise care and discretion as to the time and mode of clearing his land ; and if his neighbour be injured by rashness or in- considerateness on his part in setrin;; out fire for that purpose lie will be liable to him; but this is always a question for the jury, and the Court refused to disturb a verdict for defendant though the evidence would fully have warranted a different finding: Wilkin* x. Bow, 15 1'. C. C. P. 32.". However clear the rule may be that a party may kindle or permit fire to burn on his own land, still if it is likely by spread- 328 ACTION FOR NEGLIGENCE. ing to injure his neighbour he is bound to put it out or exert hi i do. otherwise he will bo liable: Ball v. (hand Trunk R. W. I 16 U. C. C. P. 252. Hold, following Dean v. McCarthy, 2 U. C. R. 448. that a proprietor setting out fire on his own land in order to clear it is not an insurer that no injury shall happen to his neighbour, but is responsible only for negligence ; (Jillson v. Worth Grey R. W. Co., 3~> U. C. R. 47"). Persons have a right to set out fire on their land for the purpose of clearing it, and if the flames spread under the influence of a wind suddenly arising, and cause damage to a neighbour, no action will lie without proof of negligence. It was held a misdirection in such a case to tell the jury that defendants were bound to have anticipated the rising of the wind and to use extraordinary caution: Buchanan v. Young, 23 U. C. C. P. 101. The plaintiff and defendant were adjoining land owners, and a fire started in brush and fallen timber by the defendant for the pur- pose of clearing his land spread on to the plaintiff's lands: Held, applying the principle of Rylands v. Fletcher, L. R. 3 H. L. 330, that the defendant maintained the fire at his own risk, and was respon- sible for the damage caused by it: Crewe v. Mottershaw, 9 Brit. Col. L. R. 246. Chapter 268 of R. S. O. 1897 authorizes the appointment in townships of "Fire Guardians." After such appointment no fires can be set out between 1st July and 1st October without leave in writing of the Fire Guardians. By chapter 269 persons liable to perform statute labour may be called upon to extinguish foreign fires and the work so done may be allowed as statute labour. See chapter 8, Out. Statutes. 1910, setting aside Forest Reserves. NEGLIGENCE OF FELLOW-SERVANTS. A master, although liable for the negligence of a servant acting in the course of his employment, is not at common law generally responsible for an injury sustained by that servant owing to the negligence of another servant engaged with him in a common em- ployment. To make a master liable to his servant or workman, there must be personal negligence or interference of the master, or a special contract: Ormond v. Holland, E. B. & E. 102. The master is, how- ever, bound to exercise due care and caution in the choice of his servants, otherwise he may become liable in respect of his own neg- ligence in this respect : Tarrant v. Webb, 18 C. B. 787 ; and he is bound to take all reasonable precautions to secure the safety of his workmen : Brydon v. Stewart, 2 Macq. 30. A servant takes upon himself the risk of negligence on the part of his fellow-servants, whatever position they hold, so long as they are fellow-servants. There is no exception to the rule that the LIGENCE OF FELLOW-SEEVANTS. : y .J'_' master has a personal duty to perform, which, in dangerous employ- ments and in the case of an infant, he cannot delegate to others: (ribb v. hynoch, 76 L. .J. K. B. 948; (1!>07). 2 K. B. 548; 97 L. T. 181 ; 23 T. L. R. 550. In actions at common law, and not under Employers' Liability Act, the negligent directions or conduct of a fellow-servant, however much he may be higher in grade or responsibility than the one in- jured, cannot be reckoned as negligence of the common master: Howell* v. Landore Steel Co.. L. R. 10 Q. B. 62, overruling doctrine put forward in Murphy v. Smith, 19 C. B. X. S. 301 ; fair weather v. Owen Sound, 20 O. R. GOO. New trial ordered in an action by a workman against his em- ployer for personal injuries sustained through carelessness of a fellow workman, because, although the jury found negligence imputable to the defendants, and had stated in what that negligence consisted, they were not asked to and did not find whether such negligence was the cause of the plaintiff's injuries ; nor when asked whether the defend- ants through their foreman were guilty of negligence, and if so in what such negligence consisted, were they explicitly directed to confine their findings to such negligence, if any, as upon the evidence, they should be satisfied had caused the explosion which injured plain- tiff: Hillyer v. Wilkinson Plough Co., 9 O. L. R. 711. Where the plaintiff was required to perform a piece of work in a dangerous place by a person in the employment of the defendants, whose orders he was required to obey, and while so engaged, was struck by a moving car and severely injured, the company having failed to provide proper plant and a reasonably safe place for the performance of the work he was directed to do: Held, that the plaintiff was entitled to recover compensation for the injuries sus- tained, and that as the plaintiff, although aware of the serious danger of working where he did, felt obliged to do so under peril of dismissal if he refused, he was not guilty of such contributory negligence as would preclude his recovery: Oliver v. Dominion Iron and Steel Co.. 87 N. S. Reps. 183. Differences between s.-s. 1 of s. and the corresponding provisions of the English Act pointed out. Under s.-s. 1 of s. of the Ontario Act, the employer is answerable, so far as the condition or arrange- ment of the ways. He, is concerned, for the negligence of any person whether in his service or not to whom he intrusts the duty mentioned in the sub-section in the performance of th.it duty, in the same way and to the same extent as he would have been answerable at the common law had he taken upon himself personally the performance of the duty ; and where an appliance necessary for the safety of the workman is required in the course of the work, and the employer dinecfa anyone to provide it ready for the use of the workman, that H80 ACTIONS FOR NEGLIGENCE. person is one intrusted with the duty of seeing that the appliance is proper. Giles v. Thames Ironworks Shipbuilding Co., 1 Times L. R. 469, and Ferguson v. Call Public School Board, 27 A. R. 480. fol- lowed : Markle v. Donaldson, 7 O. L. R. 376, 8 O. L. R. 682. Although an employer is not liable as a general rule for the result of accidents which happen to employees from dangers essentially in- herent in the work which is being performed, he nevertheless becomes liable when reasonable precautions have not been taken by him to reduce the danger to the lowest point or remove it altogether: Hpara.no v. Canadian Pacific R. W. Co., Q. R. 23 S. C. 292. Held, that the principle adopted in actions of negligence against professional men should be applied, namely, that negligence cannot be found where the opinion evidence is in conflict and reputable skilled men have approved of the method called in question. At common law a master is bound to provide proper appliances for the carrying on of his work, and to take reasonable care that appliances, which, if out of order will cause danger to his servant, are in such a con- dition that the servant may use them without incurring unnecessary danger. These duties he may discharge either personally or by em- ploying a competent person in his stead, and the purpose of s.-s. 1 of s. 3 of the Workmen's Compensation for Injuries Act, R. S. O. 1897, c. 160. as modified by s. 6, s.-s. 1, is to take from the master his common law immunity for the neglect of such a person: Schwoob v. Michigan Central R. W. Co., 9 O. L. R. 86. To disentitle a workman to recover damages for a defect in a machine under the Workmen's Compensation for Injuries Act, he must not only have a knowledge of the danger he incurs but also a thorough comprehension or appreciation of the risk he runs: Hoigt v. Wortman and Ward Manufacturing Co., 24 O. R. 61S. The risk may arise from a defect in a machine which the ser- vant has engaged to work, of such a nature that his personal danger and consequent injury must be produced by his own net. If he clearly foresaw the likelihood of such a result and notwithstanding continued to work, he ought to be regarded as rolens: Smith v. Baker. A. C. (1891), at p. .'i."7, quoted in Poll v. Hewitt, 23 O. R. 619. Knowledge of workman: Haight v. Wortman d- Ward. 24 O. R. 618. Master's knowledge of defect if workman knows of this knowledge he is not bound to give notice: Truman v. Rudolph, 22 A. R. 250. Employers' liability — failure to furnish a guard, per se evidence of negligence on the part of the defendants: Thompson v. Wright, 22 O. R. 127. In an action under the Fatal Accidents Act and the Workmen's Compensation Acl for the death of the defendant's servant by their negligence, as alleged, the plaintiff has no right to claim for funeral expenses: Makarsky v. Canadian Pacific R. W. Co., 15 Man. L. R. 53. LIABILITIES OF EMPLOl l.i; 'A'6\ Any person dangerous i any industry "r manu- factory must lake the greatest possible care to prevent accidents by adopting all the means and inventions known, .-mil where it is proved that such precautions have Dot been taken, the owner of the industry is responsible for injuries to workmen arising from the dangerous machinery: city of Montreal \. Oosney, <}. R. 13 K. B. 214. In an action for damages for physical injuries, the age of the victim and his personal condition as to means are relevant, but not the number of his children or the fact that he has to Bupport them: Riendeou v. Peok Rolling Co., 6 Q. P. R. 148. The injuries were caused by the plaintiff's failure to withdraw himself from danger in response to a signal. The jury found that the defendant was negligent, and that the signal was given prema- turely, and that the plaintiff should have heard the signal, but being busy, might not have heard it. The answer to the question as to contributory negligence, to which the jury's attention was directed by the Judge, was: "We do not consider that plaintiff was doing any- thing but his regular work." Judgment was entered for the plaintiff: Held, that the judgment must be affirmed : Marshall v. Gates, 10 B. 0. R. 153. An employer is liable for the consequences, not of danger but of negligence. He performs his duty when he furnishes machinery of ordinary and reasonable safety. Reasonable safety means according to the usages, habits, and ordinary risks of the business. No jury can be permitted to say that the usual and ordinary way commonly adopted by those in the same business is a negligent way for which liability shall be imposed. It is only so far as a duty arises on the parr of the employer to provide proper means or precautions so as to ake the service reasonably safe, and when a breach of that duty is a cause of injury, that a right of action accrues to the person injured: Patton v. Alberta Railway and Coal Co., '2 Terr. L. R. 138. Employers are no less responsible for the injuries occasioned by the defective system of using their machinery than they would have been for a defect in the machinery itself. There being no Employers' Liability Act in force in British Columbia when the injury in question happened, plaintiff was not precluded from obtaining compensation by failure to give notice of the defects to bis employers : Webster V. Foley, L'l S. C. II. 580; Stephens v. Chavsse, 13 S. C. R. 379. ^Vhere an injury has occurred by reason of defendant's negl to provide the best known or conceivable appliance to prevent dents, the employer is subject to common law liability, and the as ment of damages should be left to the reasonable discretion of the jury: Hah It if Peppard v. Nomburp, Supreme Court, 12th June, 1900. A master who makes an intermittent use of electrical appliances, dangerous when charged with electricity, and necessarily placed within 332 ACTIONS ['OK NEGLIGENCE. reach of his workmen, is under obligation to cause them to be warned on every occasion upon which the current of electricity is turned on, and in default is responsible for injuries which may occur from con- tact with the appliances. The burden of proof thai a sufficient notice to employees has been given is upon the master: Shawinigan Carbide Co. v. Saint-Onge, Q. R. 15 K. P,. 5. As there can be no responsibility on the part of an employer for injuries sustained by an employee in the course of his employment, unless there be positive testimony or presumptions, weighty, precise and consistent, that the employer is chargeable with negligence, which was the immediate necessity and direct cause of the accident which led to the injuries suffered ; it is the duty of an appellate Court to relieve the employer of liability in a case where there is no evidence as to the immediate cause of an explosion of dangerous material which caused the injuries, notwithstanding that the finding or a jury in favour of the plaintiff, not assented to by the trial Judge, nave been assented to by two Courts below. The Asbestos and Asbestic Co. v. Durand (30 S. C. R. 285), discussed and approved : Dominion Cartridge Co. v. McArthur, 31 S. C. R. 392. A master is not liable for the wrongful act of a servant though intended to promote the master's interest, if it is an act outside the scope of the servant's employment and authority and is one which the master himself could not legally do: Coll v. Toronto R. W. Co., 25 A. R. 55. The driver of the defendants' ice-wagon, after delivering their ice along his prescribed route, instead of returning to the company's barns, got drunk, and some hours after he was due to return, and while driving out of his homeward course, ran over the plaintiff, causing injury : Held, that the defendants were not liable, as the driver was not acting in the course of his employment at the time of the accident : Wills v. Belle Eumrt Ice Co., 12 O. L. R. 520, 8 O. W. R. 331. Where a servant or agent commits a wrong within the scope of his employment, and in the interests or supposed interests of the master or principal, and not for his own private and fraudulent purposes, the master or principal is liable. On the other hand, if the wrong is committed by a servant or agent, not for his master's or principal's purposes or interests, but to carry out the servant's own private ends, the master or principal is not liable: Malcolm, Rrunker 6 Co. v. Waterhouse, 24 T. L. R. 854. Where the workman is aware that the employer knows of the defect that ultimately causes the injury he is not bound under s.-s. 3 of s. B of the Workmen's Compensation for Injuries Act, 1892, 55 Vict. c. 30 (O.), to give information thereof to the employer, and his failure to give information in other cases will not bar his L< ToKY ACT. 383 right of action if a reasonable excuse is shewn for the omission, this brin;: a question of fact for the jury. Where both the employer and the workman know of the defect, and it is the workman's own duty to Bee that the defect is remedied, bul orders were given to him with thai objecl are nol carried out, he cannot recover: Truman v. Rudolph, 22 A. R. 250. A Miastcr is responsible to his workmen for personal injuries occasioned by a defective system of using machinery well as for injuries caused by a defect in the machinery itself. At common law a workman was not precluded from obtaining com- pensation for injuries received by reason of defective machinery, or a defective system, t>>- reason of his failure to give notice to the employer of such defect : Webster v. Foley, 21 S. C. It. 580. The (fleet >f Factory Act. and what is meant by voluntary iueur- ring risk of injury, considered: McCloherty v. Gale Manufacturing Co., l'.i A. R. 117. commented on. The employment of a child under twelve to work an elevator for the uses of a manufacturing concern is made illegal by the Factories Act : and for this reason the employer has to exercise more than ordinary precautions for the well-being and safe-guarding of minors who have been put into factory work contrary to the prohibition of the legislature : O'Brien v. Sanford, 22 O. R. 136. By the Ontario Factories Act, R. S. O. 1897, c. 256, s. 3, the plaintiff's employment was wholly unlawful and a prima facie case under that Act was made simply by proof of his age. the employment and the injury. To such prima facie case, no answer was made ; there was no finding of contributory negligence and the employer's premises were, within the meaning of the Act. a factory, of which the elevator formed part. The employers were, therefore, liable under tne Factories Act to the extent of $1,500: Jones v. Morton Co., Limited, 14 O. L. It. 402. Permitting a young child to drive a mowing machine is evidence licence: Carroll v. Freeman, 23 O. R. 283. A miner was getting into the bucket by which he was to be d into the mine when owinu to the chain not being checked his weight carried him rapidly down and he was badly hurt. In an action for damages against the mine owners, the jury found that the system of lowering the men was faulty: the man in charge of it negligent ; and that the engine and brake by which the bucket was lowered were not it and proper for the purpose. Printed rules were posted near the mouth of the pit. providing among other things that signals should be given by any miner wishing to go down the mine or be brought up, by means of bells, the number telling the engineer and pitman what was required. The jury found that it was not usual in descending to signal with the bells, and that the injured miner knew of the rules, bul had not ' with them on the 384 ACTIONS FOR NEGLIGENCE. occasion of the accident. Held, that there was ample evidence to support the findings of the jury that defendants were negligent; that there was no contributory negligence hut non-use of the signals, the rules having, with consent of the employees and of the persons in charge Ot the men. been disregarded, which indicated their abrogation; the new trial should, therefore, not have been granted. Held, further, that as the negligence causing the accident was not that of the persons having control of those going down the mine, it was not a case of negligence at common law with no limit to the amount of the damages, but the latter must be assessed under the Employers' Liability Act (1897). It. S. B. C. c. C>9) : Warmington v. Palmer. 32 S. C. H. 120. Owners of mines are not liable for an injury to a workman in their employ caused by the negligence of their foreman or superintendent, if they have selected proper and competent persons personally to superintend and direct the work, and have furnished them with adequate materials and resources for the work. The party asserting the negligence must prove it, and the negligence of a servant in such a case is not the negligence of the master: Campbell v. General Mining Association, 1 N. S. D. 415 (N.S.). Negligence on the part of a manager or foreman is not constructive negligence on the part of the master. Actual personal negligence of the master must be established, as a foreman is but a fellow servant, though it may be of a higher grade: Rndd v. Bell, 13 O. R. 47. Where employment is attended with danger to life, e.g., from poisonous exhalations in a manufactory of chemicals, an employer is bound to give special warning to his employees of the dangers of the different tasks given them, and to have some system of super- vision over them while at work. A general warning to the men that their work is dangerous and demands the exercise of care, is not sufficient, and will not relieve the employer from liability for accidents: Nichols Chemical Co. of Canada v. Forster. Q. It. 15 K. B. 411. The fact that for many years an operation has been carried on in the same way and with the same appliances without an accident, while strong evidence in the master's favour, is not conclusive, and if there is evidence that the system is defective the case must be sub- mitted to the jury: Commarford v. Empire Limestone Co., 11 O. L. H. 119, G O. W. R. 1018. The above rules must now be read subject to the Factories Act, tt. S. O. 1897, c. 256. The Workman's Compensation for Injuries ,\n a railway. Notice in writing must be given within twelve weeks after the injury, aud the action must be commenced within six months, and in case of death within twelve months from the time of death. Work- men under certain circumstances (section 10) may contract them- selves out of the Act. Assessors may be appointed for the purpose of ascertaining the amount of the compensation, which is limited (section"). The clauses above quoted, relating to railway employees, apply also to other employees. See also Out. Stats. L899, c. 1S. The provisions of section 11 of the Workmen's Compensation for Injuries Act. r,r> Vict. <•. 30 (O.), are not complied with merely by pleading that the notice of action relied on by the plaintiff is defective, or that notice of action has not been given. The defendant must give formal notice of his objection not less than seven days before the hearing of the action if he intends to rely upon it : Cartimuih v. Park, 23 A. K. 715. NEGLIGENCE OF RAILWAY COMPANIES. By Dominion Railway Act. every railway company which runs trains upon the railway for the conveyance of passengers shall use the best appliances for communication between conductors and engine drivers, and for brakes, and for disconnecting cars, and for securing seats in the cars. By tne same Act, the company must erect and maintain fences and cattle guards. While maintained, the company shall not be liable for damages done to cattle, etc.. unless the same are caused wilfully or negligently by the company or by its employees The Railway Act, If. S. < '. c. -'IT. contains the following provisions relating to the powers of the Board of Railway Commissioners for Canada : 63. The Board may order that any witness rpsident or present in p ower - ,.,. Canada may be examined upon oath before or make production ofgarding books, papers, documents or articles to. any one member of the Board * > n,s *' s or before or to any officer of the Board or before or to any other evidence. person named for the purpose by the order of the Board, and may make such orders as seem to it proper for securing the attendance of such witness, and his examination and the production by him of books. papers, documents or articles, and the use of the evidence so obtained. and otherwise exercise for the enforcement of such orders or punish- ment for disobedience thereof, all powers that are exercised by any 3M6 ACTIONS FOK NEUI.KJENCR. ( kimmis- Bions :<> take e\ 1- dence in foreign countries. Tariff. Presumed legal as against company. superior court in Canada for the enforcement of subpoenas to wit- nesses or punishment of disobedience thereof ; provided that no person shall be compellable against his will to attend for such examination or production at any place outside the province in which he is served with the order of the Board for the purpose. 2. The Board may issue commissions to take evidence in a for- eign country, and make all proper orders for the purpose and for the return and use of the evidence so obtained. 78. If the company files with the Board any tariff, and such tariff comes into force, and is not disallowed by the Board under this Act, or if the company participates in any such tariff, the tolls under such tariff while so in force shall, in any prosecution under this Act as against such company, its officers, agents or employees, be conclusively deemed to be the legal tolls chargeable by such com- pany. The Board may, upon the application of any land owner, order the company to provide and construct a suitable farm crossing across the railway, wherever in any case the Board deems it necessary for the proper enjoyment of his land on either side of the railway, and safe in the public interest. 2. The Board may order and direct how, when, where, by whom and upon what terms and conditions such farm crossing shall be constructed and maintained. Company 252. Every company shall make crossings for persons across shall make whose land the railway is carried, convenient and proper for the cross- gs. .^ o £ ^ e ra i] wa y for farm purposes. Live stock ^" ^ ve stot 'k, in using such crossings, shall be in charge of some competent person who shall take all reasonable care and precaution to avoid accidents. (Jutes to 255. The persons for whose use farm crossings are furnished be closed, shall keep the gates at each side of the railway closed when not in use. Expulsion. 281. Every passenger who refuses to pay his fare may by the conductor of the train and the train servants of the company be expelled from and put out of the train with his baggage, at any usual stopping place, or near any dwelling house, as the conductor elects; provided that the conductor shall first stop the train and use no unnecessary force. No claim 282. No person injured while on the platform of a car or on for injur- an y baggage <>r freight car in violation of the printed regulations posted up at the time, shall have any claim in respect of the injury, KAII.U AY ACT. 387 if room inside of the passenger cars sufficienl for the proper accom- modation of the passengers was furnished at the time. 283. A check shall be affixed by the company to every parcel of Company baggage having a handle, loop or suitable means for attaching * Xtck* . check thereupon delivered ,,y a passenger to the company for trans- port ; and a duplicate of such check shall be given t<> the passenger delivering the same. 2. In the case of excess baggage the company shall be entitled Excess to collect from the passenger before affixing any such check the toll ^Re- authorized under this Act. 294. No horses, sheep, swine, or other cattle shall be permitted < ';ittle not to be at large upon any highway, within half a mile of the inter- ^J ^^* 1 section of such railway, with any railway at rail level, unless they railway. are in charge of some competent person or persons to prevent their loitering or stopping on such highway, at such intersection, or stray- ing upon the railway. 2. All horses, sheep, swine or other cattle found at large con- May trary to the provisions of this section may by any person who finds 1^™^ them at large be impounded in the pound nearest to the place where they are so found, and the poundkeeper with whom the same are impounded shall detain them in like manner and subject to like regulations as to the care and disposal thereof, as in the case of cattle impounded for trespass on private property. 3. If the horses, sheep, swine or other cattle, of any person No right which are at large contrary to the provisions of this section are ° actl " n killed or injured by any train at such point of intersection, he shall not have any right of action against any company in respect of the name b( ing so killed or injured. 4. When any horse, sheep, swine or other cattle at large, whether Cattr* upon the highway or not, get upon the property of the company ^!| e ^' r and are killed or injured by a train, the owner of nny such animals ,, rop , Tl y so killed or injured shall, except in the cases otherwise provided for of com- , . pany . by the next following section, be entitled to recover the amount or such loss or injury against the company, in any action in any court of competent jurisdiction, unless the company establishes thai such animals got at large through the negligence or wilful act or omission of the owner or his agent, or of the custodian of such animal or his agent. 5. Tlie fact that nny such animal was not in charge of some Right to Competent person or persons shall not. if the animal was killed or **££ injured upon the property of the company, and not at the point of 338 ACTIONS FOR NEGLIGENCE. intersection with the highway, deprive the owner of his right to recover. No right of 295. No person whose horses, cattle, or other animals are killed action if ■ • j u r. n i ■ , ^ ? ■ or injured by any train shall have any right of action against any company in respect of such horses, cattle or other animals being so killed or injured, if the same were so killed or injured by reason of any person — (iates not (a) For whose use any farm crossing is furnished failing to keep the gates of each side of the railway closed when not in use, or Or wilfully (ft) Wilfully leaving open any gate on either side of the rail- way provided for I lie use of any farm crossing, without some per- son being at or near such gate to prevent animals from passing through the gate on to the railway, or Or fence (c) Other than an officer or employee of the company, while down acting in the discharge of his duty, taking down any part of a rail- way fence, or Or cattle (d) Turning any such horse, cattle, or other animal upon or turned within the inclosure of any railway except for the purpose of and railway while crossing the railway in charge of some competent person, inclosure. U8 i n the author of his own wrong: Bridge v. drund Junction Railway, '■'> M. & \V. 244. Railway companies are hound to use reasonable care and dili- gence in the conveyance of passengers; but they are not common carriers of passengers, and are not under obligation to carry safely: Kast Indian Railway v. h'alidas Muker jee, 70 L. J. P. C. 63; (1901), A. C. 39G; 84 L. T. 210. A railway company is nol liable in damages for failing to see an intoxicated passenger safely off the platform at which he arrives: ucCormick v. Caledonian Railway, <> F. 362. Besides the obligations which arise from their contracts of car- riage, to protect the person and preserve the property of their pas- sengers, carriers of passengers are also responsible for losses caused by the faults of their servants. Where the employees of a railway company, in the course of a journey, detach a car from a train, giving notice only in i he car itself and not in the other cars in which a passenger concerned may be for the moment, there is a fault on the part of the employees for which company are liable: Great Northern R. W. Co. v. Bainer, Q. R. IS K. B. 72. It is clear that a person lawfully upon railway premises may maintain an action against a railway company for injuries sustained whilst there by reason of the active negligence of the company's ser- vants, whether he has a contract with them or not : Taylor v. .hfan- chester, etc., R. W. Co. (1895), 1 Q. R. 134, at p. 140, citing Mar- shall's Case, supra; Austin v. Great Western I'. W. Co., L. R. 2 Q. i.. 442; Foulkes v. Metropolitan District R. W. Co., 5 0. P. D. 157; and Berringer v. Crcat Western R. W. Co., t C. P. I>. 1<;3 is to the same effect. A traveller on approaching a railway crossing is bound to use such faculties of siirht and hearing as he may be posset ed of, and when he knows he is approaching a crossing, and the line is in view, and there is nothing to prevent him En nn seeing and hearing a t ri in if he looks for it, he ought not to cross the track in front of it without looking, merely because the warning required by law has not been given: Weir v. Canadian Pacific R. W. Co., 16 A. R. 100. See Morrow V. Canadian Pa<*ific R. W. Co., 21 A. R. 149. It is the duty 342 ACTIONS FOR NEGLIGENCE. of a person driving across a railway track to use care and pre- caution to see whether a train is approaching, and the omission to do so is contributory negligence: Johnson V. Northern R. W. Co., 34 U. O. R. 432. Meld, that obedience to the ringing of the bell or sound- ing the whistle at or approaching crossings as directed by the statute does not of itself free the company from responsibility for accidents or damages arising from any neglect or breach of duty: ham v. Grand Trunk R. W. Co., 11 U. C. C. P. 86. The statutory obligation to ring the bell or sound the whistle applies only to a highway crossing, and not to an engine shunting on defendant's own premises: Casey v. Canadian Pacific R. W. Co., 15 O. R. 574. Judgment in 19 O. R. 1G4, affirmed by the Court of Appeal upon the ground that the defend- ants had omitted to comply with the statutory requirements as to ringing the bell when approaching a railway crossing: Burton, J. A., dissenting. Rosenberger v. Grand Trunk R. W. Co., 8 A. R. 282, 9 S. C. R. 311. considered. Ringing bell or sounding whistle, if impracticable, other pre- cautions must be adopted. No rule, "stop, look, and listen," in force in Ontario: Hollinger v. C. P. R., 21 O. R. 705. Neglect of railway train to give warning at a crossing: Ander- son v. G. T. R., 16 C. L. T. 185. Held, by the Supreme Court of Canada, affirming the judg- ment of the Court of Appeal, that a railway company has no au- thority to build its road so that part of its road-bed shall be some distance below the level of the highway unless upon the express condition that the highway shall be restored so as not to impair its usefulness, and the company so constructing its road, and any other company operating it, is liable for injuries resulting from the dangerous condition of the highway to persons lawfully using it. A company which has not complied with the statutory condition of ringing a bell when approaching a crossing is liable for injuries resulting from a horse taking fright at the approach of a train and throwing the occupants of the carriage over the dangerous part of the highway on to the track, though there was no contract between the engine and the carriage : Grand Trunk R. W. Co. v. Rosenberger, 9 S. C. R. 311, followed ; Sibbald v. Grand Trunk R. W. Co., 18 A. B. 184, 20 S. C. R. 259. Section 256 of the Railway Act. 1888. pro- viding that " the bell with which the engine is furnished shall be rung, or the whistle sounded, at the distance of at least eighty rods from every place at which the railway crosses any highway, and be kept ringing or be sounded at short intervals until the engine has crossed such highway," applies to shunting and other temporary movements in connection with the running of trains, as well as to the general traffic. Judgment in 25 A. R. 437 affirmed : Canada Atlantic R. W. Co. v. Henderson, 29 S. C. R. 632. CATTLE AT LABG] . 343 Upon the proper construction of a 'J'57, s.-s. 4 of the Domin- ion Railway Act, 1903, a finding that the horse was killed upon the property of the defendants was sufficient to entitle the plaintiff to recover unless it was shewn by tin- defendants that the animal got at large through the negligence <>f the owner or custodian, and such negligence was sufficiently negatived, in view of the Judge's charge, by the finding of the jury that the defendants were responsible: Bacoti v. Grand Trunk R. W. Co.. 12 O. L. R. 196, 7 O. W. R. 753. Horses running at large killed by train — no municipal by-law allowing horses so to run — defendants not liable: Duncan v. C. I'. /?.. 21 O. R. 355. Cattle "at large." The question whether cattle are at large or not need not under all circumstances be submitted to the jury. It is for the Judge to say in that case, as in others, whether there is any evidence for the jury: Thompson v. G. T. R., 22 A. R. 453. A contract was made by a railway company for the carriage of cattle to a point on the line of a connecting railway company at a hxed rate for the whole journey. The contract provided that the shipper (or his drover) should accompany the cattle; and that the person in charge should be entitled to a "free pass, but only "on the express condition that the railway company are not responsible for any negligence, default or misconduct of any kind on the part of the company or their servants : " Held, that the condition was valid and could be taken advantage of by the connecting railway company, who therefore were not liable to the shipper for injuries by him in a collision caused by their servants' negligence: Hall v. "North-Eastern R. W. Co., L. B. 10 O. B. 437. applied : Bicknell v. Grand Trunk R. W. Co., 20 A. R. 431. Absence of cattle-guards — horses not in charge of any person : Nixon v. G. T. R.. 23 O. R. 124. In this case the Court construed section 2 of chapter 28 of Dominion Acts of 1890. which amended section 194 of the Railway .vet of 1888 by substituting a new sub- section. Negligence of man in charge: Garland v. Toronto, 23 A. R. 238. Negligence of employee — specific instructions: W'eegar v. G. T. R., 23 S. C. R. 422. A railway company which accepts goods for carriage by a named route is liable to the consignor in damages for loss occasioned to him owing to the goods being carried by a different route: Mallett v. Great Eastern Raiheau, *>S L. J. Q. B. 256; (1899). 1 Q. B. 309: 80 L. T. 53 ; 47 W. R. 334. I'rivate sidings: Cowan v. North British Railicav. 3 F. 667. A railway company is liable for damages to goods from negli- gence, even though the shippers of the goods agree in consideration ,'U4 ACTIONS FOR NEGLIGENCE. of tiit- reduced freight not to hold the company liable : Cobban v. 0. P. R., 23 A. R. 115. In an action for damages resulting from a railway accident, when negligence is charged, reports of officials of the company, as to tne accident, made before the defendants had any notice of litiga- tion, and in accordance with the rules of the company, are not privileged from production, although one of the purposes for which they were prepared was for the information of the company's solici- tor in view of possible litigation : Savage v. Canadian Pacific Ry. Co., 16 Man. L. R. 381. For a railway company to permit grass and weeds to grow on a side track is not such negligence as will make it liable to compen- sate an employee who is injured in consequence of such growth while on the side track in the course of his employment: Wood v. Canadian Pncific R. W. Co., 30 S. C. R. 110. A railway company are not bound to maintain any but the usual and direct road for access and egress to and from their station; and a passenger taking an indirect road not appropriated to the purpose of a footway cannot hold the company responsible for damages or accident thereby : Walker v. Great Western R. W. Co., 8 U. C. C. P. 161. A railway company are bound to provide for passengers safe means of ingress to and egress from its stations ; and where a passenger arriving at a station at night walked along a platform not intended but frequently used as a means of exit, but which was not in any way guarded, and after leaving the platform fell into an ex- cavation in the company's grounds and was injured, the company were held liable in damages : Oldriyht v. Grand Trunk R. W. Co., 22 A. R. 286. A watchman was employed by the defendant to lower bars or gates across the highway at each side of a crossing on the approach of trains, and to raise them as soon as the trains had passed, the gates being lowered and raised by means of a lever which was some distance from them. While n train was passing and the gates down, the plaintiff, a lad of sixteen, and two other lads, climbed or leaned upon one of the gates, and the watchman was prevented by their weight from raising the uat• it 87. A railway company whose railway crosses the streets of a town not only must not allow its trains to go faster than the speed allowed by the Railway Act, but besides, in order to escape liability for accidents, must pu1 guards and barriers at the places where the rail- way crosses the streets: Qirard v. Quebec and St. John R. W. Co.. Q. R. 25 S. C. 245. The omission of a common law duty is actionable negligence, equally with the omission of a statutory duty, and the common law requires the defendants' servants, when running through the yard, to take the obvious precaution of watching for workmen lawfully on the track and giving them timely warning: Wallman v. Canadian J'acific R. W. Co., 16 Man. L. R. 83. Where the breaking of a rail is shewn to be due to the severity of the climate, and the suddenly great variation of the degrees of temperature, and not to any want of care or skill upon the part of the railway company in the selecting, testing, laying, and use of such rail, the con, ..any is not liable in damages to a passenger injured by the derailment of a train through the breaking of such rail: Canadian Pacific Ry. Co. v. Chalifoux, 22 S. C. R. 721. A railway company breaking rules made to insure public safety upon a railway and traffic bridge is guilty of negligence and liable for damages occasioned throusrh the disobedience of orders or recklessness of its employees: Canadian Pacific Ry. Co. v. I.awson. Cass. Dig. (2nd ed.) 720. The duty of a railway company is to keep frog spaces continu- ously filled : Misener v. Wichioan Central Railway Co., 24 O. R. 411. In an action against a railway company for so negligently man- aging a fire which had begun upon defendants' track that it ex- tended to the plaintiff's land adjoining: Held, thai the limitation clause did not apply, the injury charged being -i law by one proprii land against another, independent of any user of the railway: Prendergast v. tlrand Trunk R. W. Co., 25 I'. C. R. 103. A railway company are responsible for d used for fire which is started by sparks from one of their engines in d and shrubs allowed by them to accumulate in the usual course nature from year to year on their land adjoining the railway track. It is the company's duty in such a case to remove the dangerous 346 ACTIONS FOR NEGLIGENCE. accumulation : Rainsville v. G. T. R. Co., 25 A. R. 242. 29 S. C. R. 201. A railway company is not liable for the damage resulting from a fire caused by sparks from an engine running on their line, in the absence of negligence in the construction or use of such an engine : ( anadian Pacific Railway v Roy, 71 L. J. P. C. 51; (1902), A. C. 220; 86 L. T. 127; 50 W. R. 415. In an action against a railway company for negligence causing hre by sparks from their engine, the cause of the fire may be proved by circumstantial evidence: Rainsville v Grand Trunk R. W. Co., 2o O. R. 625. Affirmed, 25 A. R. 242, 29 S. C. R. 201. Held, also, on the authority of Vaughan v. Taff Vale R. W. Co., 5 H. & N. 679, that where there is no negligence either in the construction or the management of the locomotive, the company are not liable for injury resulting from the mere emission of fire therefrom into the adjoining lands: Ball v. Grand Trunk R. W. Co., 16 U. C. C. P. 252. As to damages occasioned by fire from locomotives, besides the general principles already mentioned, special provisions are made by R. S. O. 1897, c. 267, s. 9, " An Act to Preserve the Forests from Destruction by Fire," already referred to, enforcing special regula- tions as to locomotives. Where a train is approaching a crossing, and the persons in charge neglect to give the proper signals, the company will not be relieved from liability because the person whose cattle were run over did not take the best means to avoid the accident or because his horses were unmanageable : Tyson v. Grand Trunk R. W. Co., 20 U. C. R. 256. A boy over eight years of age entered from the adjoining high- way the unfenced freight yard of the defendants, for the purpose of gathering pieces of coal dropped from the cars, and in doing so got under or alongside the wheels of a car, which, in being shunted, ran over and killed him, at a place over 400 feet from where he entered the yard : Held, that he was wrongfully trespassing where he had no business or invitation to be : Held, also, that the plaintiffs had not satisfied the onus cast upon them to establish by evidence cir- cumstances from which it mitrht fairly be inferred that there was reasonable probability that the accident resulted from the absence of a fence at the place where the boy entered : Williams v. Great West- ern R. W. Co., L. R. 9 Ex. 157, and Daniel v. Metropolitan R. W. Co., L. R. 3 C. P. 216, I,. K. 5 H. I,. 45, followed : Newell v. Cana- dian Pacific R. W. Co., 12 O. L. R. 21, 7 O. W. R. 771. The plaintiff was injured by being struck by the engine of a train uf the defendants while crossing their track at a level highway cross- ing. Had ho looked he could have seen the approach of the train, but he did not look. There was some evidence that the usual statutory NEGLIG1 mi: OP RAILWAY COMPANIES. 347 signals of the approach of the train were not given. The plaintiff sought to recover damages for his injuries: Held, aot a case which could he withdrawn from the jury. The defence thai the plaintiff should have looked out for the train was om- of contributory negli- gence and must be left to the jury: Morrow v. Canadian Pacific R. W. Co., 21 A. R. 140. and Vallee v. Grand Trunk B. \V. Co., 1 O. L. R. 224, followed : Sim* v Grand Trunk R. W. Co., 10 O. J.. R. 330. Three persons were uear a public road crossing when a freight train passed, after which they attempted to pass over the track, and were struck by a passenger train coming from the direction oppo- site to that of the freight train and killed. The passenger train was running at the rate of 45 miles an hour, and it was snow- ing slightly at the time. On the trial of actions under Lord Camp- bell's Act against the railway company, the jury found that the death of the three persons was due to negligence " in violating the statute by running ;it an excessive rate of speed." and that de- ceased was not guilty of contributory negligence. A verdict for the plaintiff in each case was maintained by the Court of Appeal : Held, that the defendants were liable, that the deceased had a right to cross the track, and there was no evidence of want of care on their part, and the same could not be presumed, and though there may not have been precise proof that the negligence of the company was the direct cause of the accident, the jury could reasonably infer it from the facts proved, and their finding was justified: Mc Arthur v. Dominion Cartridge Co. (1905), A. C. 72, followed. Wakelin v. Lon- don and South-Western R. W. Co., 12 App. Cas. 41. distinguished. Held, also, that the fact of deceased starting to cross the track two seconds before being struck by the engine was not proof of want of care, that owing to the snowstorm and the escaping steam and noise of the freight train, they might well have failed to see the headlight, or hear the approach of the passenger train if they had looked and listened. Judgment of the Court of Appeal affirmed : Grand Trunk ti. W. Co. v. Hainer, 36 S. C. R. 180. In the trial of an action for damages in consequence of an em- ployee of the lumber company being killed in a loaded car which was being shunted, the jury found thai " the deceased voluntarily ac- cepted the risk of shunting," and that the death of the deceased was caused by defendants' negligence in the shunting in pivintr the car too strong a push : Held, that the verdict meant only that deceased had voluntarily incurred the risks attending the shunting of the cars in a careful and skilful manner, and thai the maxim volenti non fit injuria had no application. Smith v. Baker (1801), A. C. 325, applied. Judgments in 25 O. R. 209, and 22 A. K. 202. affirmed: Canada Atlantic R. IT'. Co. v. Hurdman, 25 S. C. R. 205. The fences required to be erected by the railway company, under s. 254 of the Railway Act, R. S. C. 1906, C 37, are for nil purposes 348 ACTIONS FOR NEGLIGENCE. which they may serve ; and consequently by virtue of s. 427, the com- pany are liable for all damage of whatever kind resulting from the omission to fence. The Fence Ordinance (N. W. T. 1903, 2nd session, c. 28), has not application to a case where it is the duty of the per- son charged with damage to maintain that portion of the fence through which animals doing damage have entered. It makes no dif- ference whether the rest of the lands are fenced or not : Toll r. Canadian Pari fir R. W. Co., 1 Alta. L. It. 244, considered. Winter- burn V. Edmonton, Yukon and Pacific R. W. Co., 8 W. L. R. 795, 1 Alta. L. R. 298. When it is proved that animals killed by a train of a railway company had been allowed to go at large on a public road through the negligence or wilful act or omission of the owner or his agent, and, in consequence thereof, got upon the right of way through a defect in the railway fence, s.-s. 4 of s. 237 of the Railway Act, 1903 (s. 294 of c. 37 of R. S. C. 1906) protects the company from any claim for damages, although the company had failed to observe the requirement of s. 199 (now 254) by neglecting to keep the fence along the right of way in proper repair: Murray v. Canadian Pacific R. W. Co., 7 W. L. It. 50 ; Becker v. Canadian Pacific R. W. Co., 7 Can. Ry. ('as. 29, 5 W. L. R. 569, and Bourassa v. Canadian Pad- fir R. W. Co., 7 Can. Ry. Cas. 41. Q. R. 30 S. C. 385, followed. 2. Section 237 deals completely with the question of animals at large getting upon the railway track and being killed or injured, and, therefore, s. 294 (now 427), being only of general application, can- not be interpreted so as to make the company liable in a case in which, by s. 237, they are expressly relieved from liability : Clayton V. Canadian Northern R. W. Co.. 7 W. L. R. 721. 17 Man. L. R. 426. There is no express provision in the present Railway Act equiva- lent to s. 16 of the Consolidated Railway Act of 1897, as amended by 46 Vict. c. 24. s. 9 (P.), under which it was decided in Davis v. Canadian Pacific R. W. Co. (1886), 12 A. R. 724. that the ques- tion of contributory negligence did not arise where the proximate cause of the damage was the omission of the railway company to make or maintain fences as required by the statute. Notwithstanding the absence of an express provision such as is above referred to, the defendants were liable to the plaintiffs for the damages sustained by them, by reason of the duty imposed upon the defendants by s. 254 of the Railway Act to "erect and maintain upon the railway" fences "suitable ami sufficient to prevent animals from getting on the railway." for breach of which duty a statutory rirrht of action against the company is t;ivcn by s.-s. 2 of s. 427 of the Act, to any person injured, for the full amount of damage sus- tained thereby. Prima facie the fence was erected by the company in accord- ance with their statutory obligation to do so where lands through railway fences. 349 which the railway passes arc "inclosed and < i t fur settled or im- proved" (s. 254, s.-s. 4); and l In* onus lay 00 the defendants to shew that at the time when the fence was erected it was not " re- quired" by the Act : New Brunswick R. W. Co. v. Armstrong (18 28 N. B. R. 193, approved and followed. McLeod v. Canadian Nor- thern R. W. Co., 18 O. L. K. 616. The defendants maintained along their line of railway through a farming country a barbed wire boundary fence without any pole, hoard, or other capping connecting the posts; the plaintiff's horse, picketed in his field adjoining, became frightened from some cause unexplained, and ran into the fence and reeived injuries on account of which it had to he killed: Held, that the fence was not inherently dangerous, and therefore the company were not liable. The test is whether the fence is dangerous to ordinary stock under ordinary con- ditions, and not whether it is dangerous to a bolting horse: Plath v. Grand Forks and Kettle River Valley R. W. Co., 10 B. C. R. 209. Under s.-s. 3 of s. 194 of the Railway Act (53 V. c. 28, s. 2), a railway company is not liable in damages for the death of an animal which, having got on the track through a defective fence, is frightened by a train, and then runs into a barbed wire in another part of the fence, and is so cut. by the barbs that it dies. The damages to the animal cannot be said to be " caused by any of the company's trains or engines" unless the animal is actually struck by the train or engine. Dicta of the Judges in Jama v. (hand Trunk R. IF. Co., 1 O. L. R. 127. 31 S. C. R. 420, and decision in Winspear v. Accident Insurance Co., 6 Q. B. 1). 42, followed: McKellar v. Canadian Pa. amending s. 197 ">f the Railway Act, 1888. and requiring at every public road crossing at road level of the railway, the fences on both sides of the crossing and of the track to be turned into the cattle guards, apply to all public road crossings, and not to those in townships only, as is the of the fencing prescribed by s. 104 of the Railway Act. 1888: Grand Trunk R. W. Co. v. McKay, 34 S. C. R. 81, followed. Grand Trunk R. IT". Co. v. Hainer, 36 S. C. R. ISO. The obligation to maintain fences on each side of their track involves the duty of a continuous watchful inspection, and the com- pany must take notice of its state at all times: Studer V. Buffalo and Lake Huron R. W. Co., 25 1 . C. R. 160. Sheep belonging to the plaintiff escaped from his on the highway, and thence owing to defects in the fences of the defendants, into lands of theirs, whence they strayed on to the railway track, where they were killed by a passing train : Held, thai the defendants were not liable for the loss, the sheep not being lawfully on the highway: Daniel v. Grand Trunk R. W. Co., 11 A. R. 471. It is the duty of the railway company 850 ACTIONS FOR NEGLIGENCE. make and duly maintain gates at farm crossings with proper fasten- ings, and the knowledge of the owner of the farm that the fastenings are insufficient, and his failure to notify the company of that fact, will not prevent him from recovering damages from the company if his rattle stray from his farm owing to the insufficiency of the fastenings and are killed or injured. McMichael v. Grand Trunk R. W. Co., 12 O. R. 547, approved : Dunsford v. Michigan Central R. W. Co., 20 A. It. 577. Held, that a railway company are not bound to main- tain and keep up fences along their track except as between them and the owners of the adjoining property ; and where cattle strayed on to a neighbour's lands, and thence got on the railway track through some bars put up for a farm crossing and were killed : Held, that the rail- way company were not responsible. Semble, that the owner of the land for whose convenience such bars are constructed is bound to see that they are kept up and that the company are not responsible for injury caused by his leaving them open : McLennan v. Grand Trunk R. W. Co., 8 U. C. C. P. 411. Where cattle have wrongfully got upon a railway through the negligence of the owner, the company must still use ordinary care to avoid a collision ; and in this case where horses had escaped upon the track through a gate at a farm crossing which the owner had left open, but although they were seen by the engine driver the speed was not slackened and no precaution taken except sounding the whistle, the company were held liable : Campbell v. Great Western R. W. Co., 15 U. C. R. 498. Damages, In estimating the damages recoverable for a personal injury measure caused by negligence, the jury must not attempt to give damages to the full amount of a perfect compensation for the pecuniary injury, but must take a reasonable view of the case, and give what they consider under all the circumstances a fair compensation : Rowley v. London & N. W. Ry. Co., L. R. 8 Ex. 221. The Court thinking that the damages awarded by the jury in an action for causing death were excessive, ordered that there should be a new trial unless the plaintiffs accepted a reduced amount: Cur- ran v. Grand Trunk R. W. Co., 25 A. R. 407. The Court being of opinion that damages of $3,000 allowed by the jury were excessive, ordered that there should be a new trial unless the plaintiff should consent to accept $1,500: Collier v. Michigan Central R. W. Co., 27 A. R. 630. In an action by a parent to recover damages for the death of his child, there need not be evidence of pecuniary advantage derived from the deceased; it is sufficient if there is evidence to jus- tify the conclusion that there is a reasonable expectation of pecun- iary benefit to the parent in the future capable of being estimated : Rombough v. Balch, Green v. New York and Ottawa R. W. Co., 27 A. R. 32. Section 289 of the Dominion Railway Act, 51 Vict. c. 29, giving to any person injured by the failure to observe any of the of LIMITATION OF actions. 351 provisions of the Act a right of action " for the full amount of dam- ages sustained," is intra vires, ami the limitation of amount men- tioned in the Workman's Compensation for Injuries Act does not apply to an action by a workman or his representatives under this section: Curran v. Grand Trunk /.'. W. Co.. '17, A. R. 407. A railway company is liable in an action for one injured In an accident while a passenger in the company's train, for damages and pecuniary loss consequent upon a fright resulting in a shock to the nervous system causing physical injury, if the fright was the result of the accident, and was reasonable and natural : Kirkjiatriek v. Cana- dian Pacific R. W. Co.. 35 N. B. Reps. 598. Held, that s. ,'j4 of K. S. O. 1*11, c. 165, which fixed a lirni- Limitation tation of six months for bringing actions for any damages or in- °* act,on - jury sustained by reason of any railway, does not apply to an action brought against a railway company for damages for wrongfully tak- ing earth from the plaintiff's land. Township of Brock v. Toronto and Uipissing R. \V. Co., 37 TJ. C. R. 372, followed : Beard v. Credit \ alley R. H . Co., U (). R. 01(5. The plaintiff's father was killed on the 16th of February. 1891, by a fall from a bridge, part of a highway which crossed the defendant's line, and had been negligently allowed by them to be out of repair. The action was begun on the 14th Nov., 1891, more than six months after the accident, no letters of adminis- tration having been taken out : Held, that this was not " damage sustained by reason of the railway." and that the limitation clauses of the Railway Act did not apply. Held, also, that the provisions Of R. S. O. 1887. c. 135, Lord Campbell's Act, are not affected by special legislation of this kind, so that in that view also the action was begun in time. Judgment in 21 O. R. 628, affirmed on other grounds: Zimmcr v. Grand Trunk R. W. Co.. 19 A. R. <'>!)3. The right to com- pensation is not barred until the expiration of twenty years from th time the land is entered upon and taken for railway purposes Ross V. Grand Trunk R. W. Co.. 10 O. R. 447, followed: Esscry v. (irand Trunk R. W. Co.. 21 O. R. 224. A title by possession may be acquired as against a railway company to lands originally obtained by them for railway purposes. Robbett v. South Eastern R. W. Co., 9 Q. B. D. 424. approved ; Erie and Niagara R. W. Co. v. Rousseau, 17 A. R. 483. Operation of statute in case of lands taken by railway lor ri'-rht of way: Thompson v. Canada Central R. W. Co., 3 O. R. 136. The legislation of the Dominion Parliament forbidding the de- fendants contracting against liability for their own negligence is not ultra vires: Vogel v. (Irand Trunk R. W. Co., 10 A. R. 1(52. The provincial legislatures have do jurisdiction to make regulations in respect to crossings or the structural condition of the roadbeds of railways subject to the provisions of the Railway Act of Canada. Canadian Pacific R. W . Co. v. Parish of Notre Dame de Banseccours (1899), A. C. 367, followed: Grand Trunk R. \Y. Co. v. Thcrricn, 30 s. C. R. 485. 352 ACTIONS FOR NEGLIGENCB. STREET RAILWAYS. Persons crossing street railway tracks are entitled to assume that the cars running over them will be driven moderately and prudently, and if an accident happens through a car going at an excessive rate of speed the street railway company is responsible : Gosnell v. Toronto R. Co., 24 S. C. R. 582; Ewing v. Toronto R. Co., 24 O. R. 694. Accumulation of snow : Toronto R. Co. v. Toronto, 24 S. C. R. 589. Driving over a man in broad daylight : Forwood v. Toronto, 22 O. R. 351. Car buffers of different heights: Bond v. Toronto R. Co., 22 A. R. 78. On the trial of an action based on negligence, the jury should be asked to find specially what the negligence of the defendant was that caused the injury. General findings of negligence, unless the same is found to be the direct cause of the injury, will not support a verdict. Where a street railway company have by I heir charter privileges in regard to the removal of snow from their tracks, and the city engineer is given power to determine the condition in which the highway shall be left after a snow storm, a duty is cast upon the company to exercise their privilege in the first instance in a reasonable and proper way and without negligence: Mader v. Halifam Electric Tramway Co., 26 C. L. T. 188; 37 S. ('. R. 94. The driver of a vehicle injured while crossing a tramway is not guilty of contributory negligence because he did not look to see whether or not a car was approaching, if in fact it was far enough away to enable him to cross (he tracks had it been proceeding moder- ately and prudently (21 Ont. App. R. 553, affirmed) : Toronto Ry. Co. v. Gosnell, 24 S. C. R. 582. Injury to passengers and others: McCormack v. Sydney and Glace liny R. W. Co., 37 N. S. Reps. 254: Bell v. Winnipeg Electric Street R. W. Co.. 15 Man. L. R. 338; Ricketts v. Sydney and Glace liny R. W. Co., 37 N. S. Reps. 270 ; Preston v. Toronto R. W. Co., 6 O. W. R. 786 : Livingstone v. Sydney and Glace Hay R. W. Co., 37 X. S. Reps. 336 : GalUnger v. Toronto R. W. Co.. 8 O. L. R. 698. The escape of electricity from wires suspended over streets through any other wires that: may come in contact with them must be prevented, so far as it can be done by the exercise of reasonable care and diligence, and the defendants should have put up guards such as were shewn to be in use very generally in the United States and England, to prevent such accidents: Royal Electric Co v. Heve, 32 S. C. R. 462 ; Ilinman v. Winnipeg Electric Strrrt R. W. Co., 16 Man. L. R. 16. An electric tramway company is responsible for injuries occa- sioned through the fault of a motorman in negligently allowing an open car to come in contact with a passing vehicle, whereby the con- LORD CAMPI'.KI.I.S ACT. 853 ductor was injured, as the motorman had "charge and control" of the car within the meaning of the Ontario Workmen's Compensation Act (27 Ont. App. R. 151, affirmed) : Toronto Ry. Co. \. SneK, ol S. C. R. 241. The .Massachusetts rule that it is necessarily negligence for one riding in a railway car to project any portion of his person out of l.ir window, not followed by the Divisional Court: Simpson v. Toronto and Yuri: Radial R. W. Co., 16 O. L. It. 31, 11 O. W. R. 297. Car leaving track- Injury to passenger — Obligation of carriers for hire — Burden of proof — Breaking of flange in wheel of car — Defect in wheel — Neglect of inspection and testing — Purchase from reputable manufacturer: Gainer v. Niagara, St. Catharines and To- ronto R. W. Co., 14 O. W. H. 42. WRONGFUL ACT, DEFAULT OR NEGLECT CAUSING DEATH. By R. S. O. 1897, c. 166 (Lord Campbell's Act) an Act respect- ing Compensation to the Families of Persons killed by Accidents and in Duels, an action is given to recover damages for the death of any person caused by any wrongful act, neglect, or default. Such action shall be commenced within twelve months after the death of the deceased: see Zvrnmer v. O. T. R., 19 A. R. 582. The negligence is the cause of action, and the death of the person injured does not, under the statute, give rise to a fresh cause of ac- tion to the personal representative: Read v. Or. E. R. Co., L. R. 3 Q B. 555. The jury, in estimating the damages, cannot take into considera- tion the mental suffering of the survivors or loss of society which they have sustained, but are to award tion for pecuniary loss alone: Blake v. Midland Ry. Co., 18 Q. B. 9:?. In case of a death caused by a tort, no more than one action can be brought against tne tort feasor in behalf of those entitled to indemnity, and such nn action brought by one of them, even though the judgment rendered therein does not determine the proportion of the indemnity which the others are to receive, is a bar to subsequent action brought by oni of the latter: Bouthillier v. Central Vermont R. W. Co., Q. R. 28 S. C. 472. In an action by the father of a person whose death was occa- sioned by the ne £ the defendant held that the plain- tiff could not recover funeral and other expenses incurred, as dam- ages in the action: Toronto Ry. Co. v. Mulvannj, 3S S. C. R. 327. In an action to recover damages for death caused by alleged neclipence. the onus is on the plaintiff to prove not only that the 354 ACTION FOR NUISANCE. defendant was guilty of actionable negligence, but also either directly or by reasonable inference that such negligence was the cause of the death: Young v. Owen Sound Dredge Company, 27 A. II. 649. An employee on the Intercolonial Railway became a member of the I. R. Assn. to the funds of which the Government contributed annually $6,000. In consequence of such contribution a rule of the association provided that the members renounced all claims against the Crown arising from injury or death in the course of their em- ployment. The employee having been killed in discharge of his duty by negligence of a fellow servant : Held, reserving the judgment of the Exchequer Court ((i Can. Ex. C. R. 276) that the rule of the association was an answer to an action by his widow under art. 1056, C. C, to recover compensation for his death : The Queen v. Grenier, 30 S. C. R. 42. The death of an adopted son. though caused by negligence gives no right of action to the adoptive parent under the Fatal Accidents Act, R. S. O. 1S97, c. 166, s. 1. s.-s. 2: Blayborough v. Brantford Gas Co., 18 O. L. R. 243. Death of beneficiary — Survival of action : McHugh v. Grand Trunk R. W. Co., 21 Occ. IN. 581, 2 O. L. R. 600. Rights of administrator — Rights of relatives — Time limit — Stay of proceedings : Mummery v. Grand Trunk R. W. Co., W halls v. Grand Trunk R. W. Co., 21 Occ. N. 343, 1 O. L. R. 622. Status of widow — Grant of administration pendente lite — Work- men's Compensation Act — Negligence— Release of cause of action — Rights of mother — Expectation of benefit — Discovery of fresh evidence — Damages — New trial : Doyle v. Diamond Flint Glass Co., 24 Occ. N. 368, 8 O. L. R. 499. 3 O. W. R. 320, 356, 415, 510, 921. An action cannot be maintained either under the Fatal Accidents Act, 1864 (commonly called Lord Campbell's Act), or at common law, by a parent for the funeral expenses of a child whose death has been caused by the negligence of another person : Clarke v. Lon- don General Omnibus Co., 75 L. J. K. B. 907: (1906), 2 K. B. 648, 95 L. T. 435. Conflicting claims — Consolidation of actions — Negligence: Mor- ton v. Grand Trunk R. W. Co., 24 Occ. N. 351, 8 O. L. R. 372, 4 O. W. R. 126. Right to action — Action before grant of administration — Fiat of Surrogate Court Judge : Dini v. Farquicr, 24 Occ. N. 294, 3 O. W. R. 786. (Reversed, 4 O. W. R. 295.) ACTION FOR NUISANCE. Where the nuisance is a public one, so as to be an indictable offence, an indictment or information is the proper remedy, and an ACTION FOB M IS.WCK. 355 action will not lie at the suit of :i private person, unless he baa sustained special damage by such nuisance beyond that sustained by other persons: Winterbottom v. Lord Derby, I,. K. 2 Ex. 316. The plaintiff must prove his possessory title, the nuis- ance, and the damage. If the plaintiff is in possession, whether as owner or otherwise, it is sufficient to prove that he was possessed of the premises injured by the nuisance. If the nuisance be of a permanent nature, or in- jurious to the reversion, an action may be brought by the reversioner, as well as by the tenant in possession : liedingficld v. Onslow, 3 Lev. 209. The action lies by the reversioner even against his own tenant, and even although the injury is caused by an act done in breach of an express covenant by the defendant. To erect anything offensive near the house of another, so as to make it useless, is actionable. The owner of houses occupied by tenants can maintain an action in his own name for damages for and to restrain a nuisance on land of an adjoining owner if the nuisance is practically continuous and permanent: Park v. White, 23 O. R. 611. In case of a public nuisance, where special damage is alleged, the private injury or damage as a ground of action appears. Whether an act done is a nuisance or not depends not only on the act itself, but on the surrounding circumstances, for what would be a nuisance in one place would not be a nuisance in another : Sturges V. Bridgman. 11 Chy. Div. 852. There is a difference between a nuisance which produces material injury to the property find one which produces merely sensible per- sonal discomfort: Tipping v. St. Helen's Smelting Co.. 11 II. L. C. 042. If, after a highway has been established, anything be newly made Nuisance so near to it as to be dangerous to those using the highway, this will ^J^ 1 be unlawful and a nuisance ; but a road may he dedicated to the public, subject to the inconvenience or risk arising from its peculiar condition: Fisher v. f'roirse, 31 L. J. Q. B. 122. Nuisance on a public road : London v. London St. By., referred to in McXab v. Dy- sart. 22 A. R. T.OS. See Ward v. Caledon, 1!> A. R. <>!), followed in Brycc v. I.outit, 21 A. It. lOU. Municipal corporations are respon- sible for damages caused to travellers by obstructions placed upon the highway by wrongdoers "i which the corporation have or ought to have knowledge ; and the road is out of repair when by the exist- ence of such obstructions it is rendered unsafe or inconvenient for travel: Castor v. Township of Vxbridgc. 30 U. C. R. 113. The only rule that can be given is that the public are entitled to have such a road as under all the circumstances they may fairly and reasonably 356 ACTION FOB NUISANCE. demand, and the municipality be called upon to provide: O'Connor v. Township of Otonabee, 35 U. C. R. 73. The liability to keep in repair extends to overhanging trees liable to fall upon the road and cause damage to passers by. Where, therefore, defendants' servants in getting materials on land adjoining the road for its repair, felled a tree, which in falling lodged against another tree near the road, and being left there afterwards fell and killed the plaintiff's wife, while passing along the road : Held, that the defendants were liable : Gil- christ v. Township of Garden, 26 U. C. C. P. 1. Action for damages occasioned to a street railway by the breaking down of the machinery used in removing a building from one part of the city to another, when crossing the railway track and so impeding their traffic: see Toronto Street Railway Co. v. Dollery, 12 A. R. 679. Held, also, that the passing of a oy-law by the corporation imposing a duty upon others to keep the sidewalks clear of snow and ice did not create a liability upon themselves : Ringland v. City of Toronto, 23 U. C. C. P. 93. The Municipal Act of Ontario makes a corporation if guilty of Removal gross negligence liable for accidents resulting from snow and ice on or ice sidewalks; notice of action in such a case must be given, but may be dispensed with on the trial if the Court is of opinion thai there was reasonable excuse for the want of it, and that the corporation had not been prejudiced in its defence : Held, affirming the decision in 23 A. R. 406, that there was sufficient evidence to justify the jury in finding that the appellants had not fulfilled their statutory obligation to keep the streets and sidewalks in repair. Town of Corn- wall v. Derochie, 24 S. C. R. 301, followed : City of Kingston v. Drennan, 27 S. C. R. 46. There is no duty at common law upon owners or occupiers of houses to remove snow from the roof, and no liability for accidents caused by its falling: Lazarus v. City of Toronto, 19 U. C. R. 9. " Gross negligence " in section 606 (2) of the Municipal Act, K. S. O. 1897, c. 223, means at the least "great negligence," and when it is attempted to make a municipal corpora- tion responsible in damages under that sub-section for an accident caused by ice on a sidewalk, it must be shewn that the sidewalk was allowed to remain in a dangerous condition for an unreasonable "Repair," time: Ince v. City of Toronto, 27 A. R. 410. The word "repair," meaning of ag use( j j n the Municipal Act with reference to a highway, is a relative term, and if the particular road is kept in such a reasonable state of repair that those requiring to use it may, using ordinary care, pass to and fro upon it in safety, the requirement of the law is satisfied. A road need not be kept in such a state of repair as to guard against injury caused by runaway horses, i.e.. horses whose riders or drivers have entirely lost control of them either in spite of ordinary care or by reason of the want of it. And where the driver of a vehicle lost control of his horses, which ran away and caused the injury for which the action was brought, by their run- NOTICE OF ICCI1 ■ ning a vehicle against a stump in the highway, it was held that ■ plaint ould not recover against the municipality, because not- withstanding (he stump, the road was in a reasonable state of repair for ordinary travel: Foley v. Township of Boat Flamborough, 2!) < >. It. I.'',!). A municipality is liable for damages arising through its negligence to children playing upon the highway, where there is no general law limiting this liability in thai regard and no local law prohibiting their playing on the highway, and when their presence is not prejudicial to the ordinary uses of the street for traffic and passage: Ricketta v. Village of Markdale, 31 O. Ft. 610: Held, that the question of contributory negligence was one for the jury and could not have been withdrawn from them: Maic v. Township of King and Albion, 8 A. 11. 248. The defence of want of the notice of acci- Want of dent required by section 13 of the Municipal Amendment Act, 1894, notice.how in an action against a municipal corporation for injuries sustained '' U ' J ' through a defective sidewalk should be set up in the statement of defence if the statement of claim is silent on the point, and the Judge guarding apainst collateral acts of negligence on the part of the contractor or those employed under him: Penny v. Wimbledon I'rban Council, CS I.. .1. o B. 704, (is!)!)) 2 Q. 15. 72. So I.. 'I'. 615, 47 W. R. :.•;.",. <« J. P. 406; Hill v. Tottenham Urban Council, 7!) L. T. 495. Although the owner of land, after letting it. is not liable for a Own<-r of nuisance erected by the tenant, yet if he lets or relets the land with 1:tllfi a nuisance upon it, or retains control of the repairs, he is liable. In such case in order to fix the tenant with liability there must be in the covenant a contract or undertaking by him to indemnify the landlord against :i particular charge which he (the landlord) has been called upon to pay, and the covenant must be construed and the obligation of the tenant determined by looking at the whole terms of the covenant and also at the lease, in order to see whether or not the terms import a contract by the tenant to indemnify the land- lord in respect of the particular expense : Foulger v. Arding, 70 ij. J. K. B. 580, (1901) 2 K. B. 151, 84 L. T. 407. 41) W. R. 442; Yalpy v. Bt. Leonards Wharf Co., 1 L. G. R. 305; 67 J. P. 402. A lease of a house for a term of years at the yearly rental of Landlord £70 contained a covenant by the tenant to pay all "outgoings in an ^ tenant respect of the premises." On the expiration of the lease the li continued to occupy the premises and pay the rent, a yearly tenancy being thus created:— Held, that the covenant would not be imported into the early tenancy so far as to render the lessee liable for an expense of £70 incurred by the lessor in abating a nuisance on the premises pursuant to a notice from the sanitary authority under the Public Health (London) Art. 1891, as in view of the shortness of the term and the amount of the rent, it was inconsistent with the presumed intention of the parties that the lessee should be liable for so great an expense. Valpy v. St. Leonard's Wharf Co., 1 L. G. R. .'105. applied. Ktockdalc v. Ascherberg, 72 I,. J. K. B. 402. (1903) 1 K. P.. 783, distinguished. Harris v. Hickman. 73 L. J. K. B. 31. (1004) 1 K. P. 13. 80 ... T. 722, G be used by the tenant while occupying it: McCallutn v. Hutchinson, 7 T". C. C. P. 508 An agent merely to let or receive rents is not liable for a nuisance upon the promises let by him: Qurnre as to the liability of a general agent clothed with power to let, repair, and in all respects act for the owner. If the nuisance existed at the time of letting, both tenant and owner are liable. It it arises after the tenancy is created the tenant only is responsible: Regina v. Osier, 32 T\ C. R. 324. 3(30 ACTION FOR NUISANCE. Obstruc- Nothing short of legislative sanction can take from anything tion to w hich hinders navigation the character of a nuisance. 2. Where an na\iga lon intf>rference witn navigation is established, it is a public nuisance which any one specially injured or damnified by it has a right to remove. 3. While no person has the right to continuously appropriate to himself any portion or the water, or bank or shore of navigable waters, for the purpose of making up a boom of logs, the use thereof in a reasonable manner and for a reasonable period, having regard to local conditions, will not amount to an interference with naviga- tion : Kennedy v. The " Sumy," 10 Ex. C. R. 29, 2 W. L. R. 550, 11 B. C. R. 499. DEFENCE. It is a good defence to show that what was prima facie a nuisance arose unavoidably from the performance by the defendants, of acts expressly sanctioned by the Legislature; but the defendants will be liable if their acts cause needless injury, or if they do not take reasonable steps within their power for averting such injury. Where the gist of the action is the consequential damage, the time of limitation begins to run from the accruing of the consequential damage: liathaicay v. Doig, 6 A. R. 264; Gardiner v. Chapman, 6 O. R. 272. As to contaminating air, see Cartwright v. Gray, 12 Ch. 399. As to action by tenant, see Arnold v. White, r > Ch. 371. Livery Though a livery stable is constructed with all modern improve- *table. ments f or drainage and ventilation of offensive odour therefrom, and the noise made by the horses is a source of annoyance and incon- venience to the neighbouring residents, the proprietor is liable in damages for the injury caused thereby. Gwynne, J., dissenting: Drysdale v. Dugas, 26 S. C. R. 20. The owner of a house, of which he is not in the actual occupation, may recover from a person who has placed an offensive nuisance on adjoining premises, damages for the injury sustained in not being able to let the house advantageously in consequence of the nuisance. An owner is liable if he let a building, which required particular care to prevent the occupation from being a nuisance, and the nuisance occurs for want of such care on the part of the tenant: Smith v. Humbert, 2 Kerr. 602 (N.B.). Notwithstanding the privileges conferred by its Act of incorporation upon an electric street railway company for the construction and operation of an electric tramway upon the public thoroughfares of a city, the company is responsible in damages to the owners of property adjoining its power house for any structural injuries caused by the Vibration vibration produced by its machinery and the diminution of rental of machin- and value thereby occasioned. Drysdale v. Dugas (26 S. C. R. 20) Care.au v. Montreal Street Ry. Co., 31 S. C. R. 463. Per- DEFENCE. sons having come to live within t! if it nuisance niter its creation aoea not prevent their complaining of it as a public nuisance: Reffina v. Brewster, 8 0*. 0. C. P. 208. In an action on the case by reversioners for a serious injury to their reversionary interest by ... . . . , . Measure of the erection of :i nuisance in a public highway, the jury are not images. necessarily restricted to a verdict f'>r nominal damages on the first trial, but may give damages commensuri le injury which the plaintiffs may sustain by the possible continuance of the nuisance: Drew v. Baby, 1 D. C. R. 438. Where the nuisance is a continuing one, so that successive actions may bo brought, the measure of <1 the amount of injury sustained up to the time of assessment of damages, and the jury may, upon a further action, give substantial damages: Battishill v. Reid IS C. B. 696. The defendant's intention in doing the act is to be taken into consideration in assessing the damages: Emblen v. Myers. 6 H. & N. 54. Action for damages to a farm caused by sowing barley, purchased from the defendant, which was mixed with weeds: \f (Mullen v. Free, 13 O. R. 57. An extraordinary drought does nol make a case of vis major so as to free those who are charged with the maintenance of a road from liability for accidents caused by its bad condition: I'icard v. Syndics des Chemins & Barriers de la Rive Nord a Quebec Q. R. 31 S. C. 258. Trustees or commissioners acting for public purposes without salary or rewind are not exempt from the responsibility which is incurred by private individuals: Coe v. Wise, L. R. 1 Q. R. 711. The defendants were held liable in damages because while they were repairing a bridge on a highway, they failed to give warning or put up a barrier, and an accident happened in consequence of a driver's attempt to turn suddenly off the highway when he came to the bridge, his horse at the time being all b yond his control in consequence of a break in the harness: Thomas v. Township of North Norwich, O. L. R. 666. The injury must be the natural or ordinary consequence of the defendant's wrongful act: Sharp v. Powell, L. R. 7 C. P. 253. The Attorney-General of the Province is the officer of the Crown who is considered as present in the Courts of the Province to a the rights of the Crown and of those who are under its protection. The .\ • eneral of the Province, and nol the Attorney-General oi the Dominion, is the proper person to file an information, where the complainl is not of an injury to property rested in the Crown as representing the government of the Dominion, but of the violation of 362 DISTURBANCE OF SUPPORT OF LAND. Music lessons. Trees. the rights of the public of the Province, even though such rights are created by an Act of the Parliament of the Dominion. The Attorney- General of the Province is the proper person to hie an informa- tion in respect of a nuisance caused by interference with a railway. Though the power of making criminal laws is vested in the Dominion Parliament, the Attorney-General of the Province is the proper officer to enforce those laws by prosecution in the Queen's Courts of Justice in the Province: Attorney-General v. Niagara Falls International Bridge Company, 20 Chy. 34; 1 Cart. 813. The giving of musical lessons by a teacher of music, and practising do not constitute a nuisance to a neighbour. The making oi noises on musical instruments to annoy a neighbour is a nuisance : Christie v. Davey (1893), 1 Ch. 316. L.'s ancient oak trees overhang W.'s land, and had done so to W.'s knowledge for 15 years. They were not dangerous to life or health. W. cut off the overhanging branches without giving notice to L. : Held, that the overhanging branches constituted a nuisance: Leminon v. Webb (189o), A. C. 1. Poisonous tree injury to cattle: Pontying v. Nokes (1894), 2 Q. P.. 281. An action for an injunction will li^ against a person who allows the branches to overhang his neighbour's land, whereby his neighbour's trees are damaged: Smith v. Giddy, 73 L. J. K. P.. 894: (1904) 2 K. B. 44* ; 91 L. T. 296 : 53 W. R. 207 : 20 T. L. R. 596. Trees whose stems are wholly on one side of the boundary of two adjacent properties, but which stand so near the boundary as to extend their roots into the other side of it, are not the common property of botn proprietors : Hetherington v. Gait, 7 F. 706. ACTION FOR DISTURBANCE OF SUPPORT OF LAND. No one has a right to deprive the soil of his neighbour while m its original condition of lateral support, but the plaintiff may acquire a rixht to the support of the defendant's soil by grant, express or implied: Partridge v. Scott, 3 M. & W. 220. Tenant may maintain action : McCann v. Chisholm, 2 O. R. 506. See Wray v. Morrison, 9 O. R. ISO. The plaintiff can recover only damage which has already accrued from the interference with uis right of support, for he can maintain a fresh action for each subsequent injury he may sustain : Mitchell v. DarUy Main Colliery Co., 11 Ap. Cas. 127 D. P.; even although the damage has been accruing continuously from the time of the defend- ant's act : Crumlie v. Wallsend Local Board, 1 Q. B. 503 C. A. (1891). See Snarr v. Granite, 1 O. R. 102. Injunction may be granted before actual damage occurs: Siddont v. Short, 2 C. P. D. 572. OBfi I Ki ' l [ON OF LIGHT OB LIE. 363 ACTION FOR OBSTRUCTION OF LIGHT OR AIR. Where a person has enjoyed an easement i>y having windows on looking the lands of an adjoining proprietor f>>r any period, even one day, over nineteen years, he cannol be deprived subsequently submits to an interruption of <'-f\\ easement for a period of twelve months. The propriety of such a rule in this Provinci marked upon and questioned. FHght v. Thomas, 11 A. & E. 088, 8 CI. & !•'. 231, followed: Burnham v. Gamy. 27 Chy. 80. By R. S. O. 1^!>7. c. L33, s. 36, no person shall acquire a right by prescription to the access and use of light to or for any dwelling house, workshop, or other building; but this section shall not apply to any such right acquired hy twenty years' use before the 5th of March. 1880: » i Carter v. Grassett, 11 O. R. 331. See Statutes. 1910, ch. 34, sec. 37. In an action for obstructing the plaintiff's lights a fair measure of damages is the cost of making such alterations on the plaintiff's house as will be necessary to obtain the same quantity of light and air as he had enjoyed before the obstruction : Ring v. Pugsley, 2 P. & B. 803 (N.B.). The right to have air to come over a neighbour's land in a par- ticular channel to a particular place, may be established by imme- morial user: but in the absence of actual contract no one can claim a right to have the general current of air over his neighbour's prop- erty kept uninterrupted: Chastey v. Ackland (1897), A. C. 155. also. Aldin v. Latimer (1894), 2 Ch. 437. The person who is in the present enjoyment of an access of light to his premises for a special or extraordinary purpose, such as taking photographic portraits, may obtain an injunction against any inter- ference against the access of light, even though he may not have been in the enjoyment of it for that special or extraordinary purpose for the full statutory period of 20 years: Lazarus v. Artistic Photo. Co. (1897), 2 Ch. 214. The rules settled by the Courts in case of the interference with ancient lights are not applicable to a case where, as here, the plain- tiff's rights are dependent upon a prior conveyance from the com- mon owner of his lot and the adjoining one, now owned by thi fendants, the plaintiff being entitled to receive such access of light through his windows as they had at the time of the severance of his lot from that oiMod by the defendants: Simpson v. Eaton, lf> O. L. R. 161. ACTION FOR DISTURBANCE OF WAY. The plaintiff must prove: 1. The possession of certain premises; 2. The existence of a right of way appurtenant thereto; 3. The disturbance of it by the defendant. 364 DISTURBANCE OF WAY. The rrodcs of proving a right of way are : 1. By express grant ; _'. By user. By Short Form Act, R. S. O. 1897, c. 118, s. 12, every deed made after 1st July, 1886, unless an exception be made therein, shall be held to include all ways, easements, and appurtenances whatever to the lauds therein comprised: see Maughan V. Casci, 5 O. R. 518. The cases under Nuisance and Is egligence, already cited, relating to high- ways, should also be referred to as well as the following, which relate to the mode of dedication of a public highway in Ontario. Dedication of a road in a municipality as a public street or road is sufficiently established by the following facts : 1. Registration by the proprietor of a sub-division plan, and deposit of book of reference on which the road is indicated and described as a street or road. 2. The opening and laying out or the land by the proprietor as a street, and the placing of sidewalks thereon. 3. The free and un- interrupted use of the street by the public for more than ten years. 4. Exploiting of the adjacent land by the proprietor, and selling lots as bounded by a public street. 5. Use of the street by the public as the only direct access to the railway station. 6. Acceptance of the dedication by the public and the municipality — the uninterrupted us« of the street being a sufficient acceptance : Shorey v. C'oofc, Q. R. 26 5. C. 203. The owner had permitted for many years a public road to be used across his land, which he subsequently agreed to sell. No by-law had been passed by the municipality for closing up this road, although a resolution of the council had been passed for the purpose : Held, that a good title was not shewn : Kronsbieiv v. Gage, 10 Chy. 572. The proof of a right of way by express grant is a question more of construction than evidence. The right of way by necessity arises by implied grant. If A. grants a tenement surrounded by his own land to B., B. is entitled to the right of way to it through the land of the grantor if such way be absolutely necessary to the right of enjoy- ment to what is granted. As to the mode of ascertaining the way, see Pearson v. Spencer, 1 t>. & S. 571. Formerly a rignt of way not claimed by express grant must have been shewn to have existed from time immei ori !. i.e., from the beginning of the reign of Richard I., A.l>. 1189. This is called a claim by prescription at common law to distinguish it from a claim by prescription of statute. By Ont. Statutes, 1910, c. 34, sec. 35, rights of way or water arc not to be defeated by shewing only that they began more than twenty years before. When enjoyed over forty years the right is indefeas- ible. The plain) iff must prove some disturbance by the defendant. Evidence may be received in contradiction to monuments placed under Survey Act : Regina v. Cosby, 21 O. R. 591. Crown lands DIM rki ■ . • l ■ OF W \ v. 365 survey of record in Crown Lands Departmenl governs on a question of situation of mad: Kenney \. Caldwell, 21 A. R. 110. Dnder the Municipal and Surveyor- Acts by the Sling of a plan and l he sale of lots according to ii abutting on a sin.:, the property in the street becomes vested in the municipality, although they may have done no by which they may have become liable to repair: Roche v. Ryan, S2 0. 11. 107. See Palmatier v. McKibbon, 21 A. R. 441. A street or road laid out upon a registered plan of a township lot, where there is not an incorporated village, continues to be a private street or road until adopted by the township council: y.kthtzkcy v. Cranston, 22 (). R. 590. See Mcllmurray v. Jenkins, 22 A. R. 398. Right of city to open roads laid out on plan: Oooder- ham v. Toronto, 25 S. C. R. 247. A mortgagee of land adjoining a highway is a person entitled to pre-emption of such land under Muni- cipal Act : Brown v. Bushey, 25 O. R. 612. In order to constitute a valid dedication to the public of a highway by the owner of the soil there must be an intention to dedi- cate, an animus dedienndi of which the user by the public is evidence and no more, and a single act of interruption by the owner is of much more weight upon a question of intention than many acts of enjoyment: Chinnock v. Hartley Wintney Rural Council, 63 J. P. 327. A deed contained in the habendum clause a reservation to the grantee of a right of way. The deed was not executed by the grantee, but had been accepted by him. It was contended that not having been executed by the grantee, there was no grant of the right of way: Held, that, the plaintiffs, by accepting the deed, were bound by the reservation it contained : Loyal Prince of Wales Lodge v. ^infield, 40 N. S. R. 30. To establish a right of way the facts must shew a bona fide user of the disputed way for some intelligent and definite purpose and for a period or at times clearly stated: (Hover v. Coleman, L. R. 10 O. P. 108, and Carr v. Foster, 3 Q. B. 581, distinguished. An im- plied reservation cannot be read into an absolute grant. Facts in- sufficient to warrant presumption of lost grant : Quccre, whether temporary non-user will prevent the acquisition of an easement : Ternari v. Flinn, 40 N. S. R. 167; O'ilara v. Eden, ib. 172n. Unity of ownership or seisin in fee extinguishes all pre-existing nts or private rights of way over one part of the land for the accommodation of another pari ; and nn easement so extinguished can only be revived by a fresh grant, and then the right granted is of a new thing; the severance again of the laud in respect of which an easement formerly existed over one part for the benefit of the other does not per se revive the extinguished easement, if the 366 DISTURBANCE OF WAY. dominant part is first granted and the servient part retained by the owner who made the severance: McClellan V. Powassan Lumber Co., 15 O. L. R. 67. A grant of a right of way extends to all licenses of the grantee, even though licenses are not expressly mentioned in the grant: Baxendale v. North Lambeth Liberal and Radical Club, 71 L. J. Ch. 806: (1902) 2 Ch. 427; 87 L. T. 16: 50 W. R. 650. Where there is no exit or entrance at either end there cannot be a public highway: Bailey v. Jamieson, 1 C. P. D. 329; G. T. P. Co. v. Vincent, 12 W. I,. R. 412. Where there has been long enjoyment of a way in connection with which for many years a payment has been made, the presump- tion is that such payment is rent, and the burden of establishing that the enjoyment confers an easement lies upon the person who claims it as of right. Gardner v. Hodgson's Kingston Brewery Co., 72 L. J. Ch. 558; (1903) A. C. 229; 88 L. T. 698; 52 W. R. 17. DEFENCE. The defendant may, under the defence of the denial of the right, prove that the way was only a way by sufferance during the pleasure of himself and the plaintiff : Reignolds v. Edwards, Willes, 282. As evidence of which he may shew that he has kept a gate across the road or that the plaintiff has paid him a compensation for the use of the way. If the way is claimed as a way of necessity, the defendant may shew that the plaintiff can approach the place to which it leads over his own land, and that consequently the way of necessity has ceased : Holmes v. Oaring, 2 Bing. 76. The defendant may also shew that the right of way has been removed and aban- doned by acquiescing in an obstruction for more than twenty years : Bower v. Hill, 1 N. C. 555. Or where it is claimed under the Act the defendant may shew an acquiescence in an interruption for one year of the twenty or forty relied on by the plaintiff : Glover V. Coleman, L. R. 10 C P. 108. The defendant may also prove an extinguishment of the right by a substantial alteration in the original object of the grant of the way. Unity of possession extin- guishes an easement : Clayton v. Corby, 2 Q. B. 813. The action can- not be brought by a reversioner unless the disturbance be of a per- manent character, so as to threaten an injury to the freehold. A right to an easement previously enjoyed cannot be acquired by the lapse of time during which the owner of the dominant tenement has a lease of the land over which the right would extend. During such unity of possession the running of the Statute of Limitations ia suspended : Htothart v. Hilliard, 19 O. R. 542. The Ontario Act (R. S. O. 1877, c. 108), reducing the period of limitation to ten years does not apply to the interruption of an easement such as a right DI8TUBBAN4 i: OF WAY. 367 to a way in alieno solo, in this case a lane which the defendant had occupied and obstructed {*>r ten years, bu1 which the plaintiff bad used prior to such obstruction : Mykel v. l>,ij,lr. 45 r. C. It. 65. When a liii" of railway Bevers a farm, and do crossing is provided by the company, a righf of way across the line may be acquired by the owner of the farm by prescription. A farm crossing provided by a rail- way company may be used by any person who after the severance b'- comes the owner of portions of the farm on both sides of tne line of the railway and has a right of access, to the crossing. A right <>f way may be acquired although the dominant tenement is not contiguous to the servient tenement : Quthrie v. Canadian Pacific A'. W. (Jo., 27 A. R. G4. The prescription of a right of action for injury to property runs from the time the wrongful act was committed, notwithstanding the injury remains as a continuing cause of damages from year to year, when the damage results exclusively from that act and could have been foreseen and claimed for at the time: Kerr v. Atlantic and North-West Ry. Co.. 25 S. C. R. IDT; Attrill v. I'latt, 10 S. C. R. 425. Abandonment of an casement may be shewn not only from facts done by the owner of the dominant tenement indicating an intention to abandon, but also from acquiescence in acts done by the owner of the servient tenement. Bell v. Oolding, 23 A. R. 485. A right of way granted as an easement incidental to specified property cannot be used by the grantee for the same purposes in respect to any other property: Purdom v. Robinson, 30 S. C. R. 64: Hart v. MeMul- len, 30 S. C. R. 245. There is a difference between a cul de sar in the city and in the country, much stronger acts being required to establish a public highway by dedication in the latter than in the former. The mere acting so as to lead persons to suppose that a way is dedicated does not amount to a dedication, if there be an agreement which explains the transaction : Hawkins v. Baker et ah, 1 Old. 4H> (N.S.) Liability is not in all cases to be inferred from enactments placing the highway under defendant's control. The obligation must have been imposed on or transferred to defend- ant : Walker v. The City of Halifax. 4 R. & G. 371. The right to a way of necessity does not cease by the subsequent construction of a public road by which there is less convenient access to the land : Gardner v. Home, 2 Thorn. 278. The accretions by the action of the elements of soil to the lands of a private individual bordering on a navigable lake belong to the owner; and in the same way accretions to a public highway are taken to be and form part of such highway : Stanley v. Perry, 23 Or. f.OT ; S. O. 2 A. R. 105, 3 S. C. R. 356. Semble, a common and public highway is not an incumbrance within the meaning of the covenant for quiet enjoyment : Moore v. Boulton, 10 TJ. C. R. 140. Where a right of way is granted as appurtenant to certain lands there is a right of unrestricted user of the way in connection with the beneficial enjoyment of the premises to which it 368 DISTURBANCE OF WAT. is appurtenant by every part owner of the property, but such part ownership confers no right to further burden the land over which the way exists by using it in connection with other adjoining pro- perty to which the privilege is not annexed: Telfer v. Jacobs, 16 O. R. 35. A right of way granted for the benefit of a specific lot can- not be used by the owner of that lot, generally apart from his ownership and use of the lot: Robinson V. Purdom, 26 A. R. 95, 30 S. C. R. 64. A way of necessity is founded on necessity, not on con- venience, and the foundation of the right is the fact that the lands conveyed are physically inaccessible except by passing over other lands : Fitchctt v. Mellow, 29 O. R. 6. Semblc, that a way of necessity to a purchaser of land is the one most convenient to the grantee by the shortest cut over the lands of the grantor; but that the right to select such a way is qualified by the effect which the selection of a particular line would have upon the interests and convenience of the grantor. Fielder V. Bannister, 8 Chy. 257. "Upon the severance of a tenement by devise into separate parts, not only do rights of way of strict necessity pass, but also rights of way necessary for the reason- able enjoyment of the parts devised, and which had been and were up to the time of the devise used by the owner of the entirety for the benefit of such parts : Briggs v. Bemmens, 19 O. R. 522. Abandon- ment of an easement may be shewn not only from acts done by the owner of the dominant tenement, indicating an intention to abandon, but also from acquiescence in acts done by the owner of the servient tenement. A conveyance made in pursuance of the Short Forms Act of a lot according to a registered plan upon which a lane is laid out, does not pass any interest in the lane, when it has not in fact been opened on the land and has not been used or enjoyed with the lot in question : Bell v. Goulding, 23 A. R. 485. Under C. S. U. C. c. 54, s. 313 (R. S. O. 1887, c. 174, s. 486), streets laid out in the original plan of a town by the Crown surveyor are public highways, though not staked out upon the ground and never opened or used : Regina v. Creat Western R. IF. Co., 21 U. C. R. 555. A man laying out village lots with streets to bound the lots, and selling according to such a plan : Held, bound by the dedication of the streets unless rebutted by other evidence: O'Brien v. Village of Trenton, 6 U. C. C. P. 350. The registration of a plan of a sub-division of a town lot, and sales made in accordance with it, does not constitute a dedication of the lands thereon to the public: In re Morton and City of St. Thomas, 6 A. R. 323. Under the Municipal and Surveyor*.' Acts by the filing of a plan and the sale of lots according to it abutting on a street, the property in the street becomes vested in the municipality, although they have done no corporate act by which they have become liable to repair : Roche v. Ryan, 22 O. R. 107 : Held, reversing the decisions in 21 O. R. 120, and 19 A. R. 641, that the right vested in the municipal corporation by 46 Vict. c. 18 DISTURBANCE OF WAY. 369 (O.) to convert into a public highway a road laid out by a private person on his property can be ei ; only in respect to private roads t<> 1 1 1* ■ us.- of which the owners of property abutting thereon were entitled: Gooderham v. City of Toronto, 25 S. C. R. 246. The mere fact of the owner of lands selling them in lots according to a plan shewing streets and lanes adjoining the several lots, does not bind him to continue such streets and lanes unlpss a purchaser is materially inconvenienced by the closing of any of them. Carey v. City of Toronto, 11 A. R. 416, 14 S. C. R. 172. The placing of a gate across n travelled road after the public have enjoyed it for upwards of twenty years can never abolish a highway, tiemble, that a gate being kept across a road is not in any case conclusive as to the road being a public one ; a right may have been reserved to put it there to prevent cattle straying: Johnstone v. Boyle, 8 U. C. R. 142. A dedication takes effect from the intention of the person making it, and the merely opening or widening a street for the convenience or benefit of the person doing it, and permitting the public to use it, will not constitute a dedication. The question of dedication or no dedication must be left as a question of fact for the jury : Belford v. Haynes, 7 U. C. R. 464 : H°ld, that the user of the road in question for thirty years after the patent would be conclusive evidence of a dedication as against the owner, and such dedication was equivalent to a paying out by him so that the road under C. S. U. C. c. 54, 8. 336, was vested in the municipality: Nytton v. Duck, 26 U. C. R. 61. The power of a municipal council to close up a road under section 504 of the Municipal Act, whereby any one is excluded from acceaa to his lands, is a conditional one only, and if another convenient road is not already in existence or is not opened by another by-law passed before the time fixed for closing the road, the by-law closing the road may be quashed. The onus of shewing that another convenient road is open to the applicant is upon the corporation : Re Adams and Township of East Whitby, 2 O. R. 473. See Ward v. Great Western R. W. Co.. 13 U. C. R. 315; Small v. Grand Trunk R. W. Co., 15 U. C. R. 283 ; Jarvis v. Great Western R. W. Co., 8 U. C. C. P. 115 ; Brown v. Toronto and Xipissing R. W. Co., 26 U. C. C. P. 206; Hamilton and Brock Road Co. V. Great Western R. W. Co., 17 U. C. R. 567; Penes v. Hall, 29 U. C. R. 472; Baird v. Wilson, 22 U. C- C. P. 491. The effect of sec. 110 of the 1 egistry Act, R. S. O. lo97, c. 136, whereby after a plan has been registered and a sale or sales made there- under, the plan is binding upon the persons so re istering it, is that it is not irrevocably so, but it may be amended or altered on a proper case being made out. Notice of any proposed amendment or alteration must be given to all purchasers thereunder, who are K.E.— 24 370 DISTURBANCE OF WATERCOURSE. entitled to oppose the amendment or alteration. Such application may be made, not only by the person registering' the plan, but also by a purchaser or anyone claiming under him ; but when it is sought to close a lane laid out on a plan, the soil of which remains in the person registering it, a purchaser seeking to close the lane must shew that he represents the title of the person who registers. Where, therefore, an application was made by a purchaser of lands laid out on a plan situated in a city to close a private lane laid out thereon, and the applicants failed to shew that they had acquired the title to the soil in the lane, the application was refused : In re Hamilton Terminal Raihvay Co. and Laura Whipple, 14 O. L. R. 117. ALTlON FOR DISTURBANCE OF WATERCOURSE. The plaintiff must prove: 1. The possession of a mill, backwater, or other tenement in respect of which the right of water is enjoyed; 2. The right to the water; 3. The disturbance; 4. The damage. Having regard to Lord Blackburn's examination of Biokett v. Morris in Urr Eivvng v. Colquhoun, 2 App. Cas. 839 at p. 852 et seq., and the remarks of Fitzgibbon and Barry, L.JJ., in Belfast Rope Works Co. v. Boyd, 21 L. R. Ir. 560, the law is not that any sensible interference with the bed of a stream is per se actionable, but that there must be either actual damage, or a reasonable possibility of damage, to give a good cause of action ; and that in determining whether the de- fendant has discharged the onus, regard must be had to the circum- stances of the case : Held, further that in this particular case the de- fendant nad discharged the onus, having regard to the evidence taken since the trial by leave of the full Court : West Kootenay Power and Light Co. v. City of Nelson, 12 B. C. R. 34, 3 W. L. R. 239. A river is navigable when, with the assistance of the tide, it can be navigated in a practicable and profitable manner notwith- standing that, at low tide, it may be impossible for vessels to enter the river on account of the shallowness of the water at its mouth. Bell v. The Corporation of Quebec (5 App. Cas. 84), followed. Evidence of the circumstances and correspondence lead- ing to grants by the Crown of lands on the banks of a navigable river cannot be admitted for the purpose of shewing an intention to enlarge the terms of letters patent of grant of the lands, subse- quently issued, so as to include the bed of the river and the right of fishing therein: Steadman v. Robertson (18 N. B. Rep. 580), and The Queen v. Robertson (6 Can. S. C. R. 52), referred to: In re Pro- vincial Fisheries (26 Can. S. C. R. 444 (1898), A. C. 700), dis- cussed: Atty.-Oen. of Quebec V. Fraser, Atty.-Oen. of Quebec V. Adams, 37 S. C. R. 577. DI8TUEBAN0E OF u \ CBEI 0UB8E. 371 The restriction of the presumption of the common law, as ad- ministered in England) in favour of Crown ownership of the alnui of navigable waters, for the protection of public rights of navigation and fishery therein, to navigable tidal waters, is apparently due to the non-recognition in early times of the necessity of protecting such pub- lic rights in other navigable waters, and an acquiescence in the right of riparian owners of lands bordering thereon to the bed of such waters, ad medium filum aqua; whereas in this province such public rights in all rivers navigable in fact have been deemed always existent in the Crown ex jure naturce, so that the title in the bed thereof remained in the Crown after it had made grants of lands bordering upon the banks of such rivers, the doctrine of ad medium filum aquce not apply- ing thereto. Where a river is navigable in its general character, natural in- terruptions to navigation at some part of it, which can be readily overcome, do not prevent it from being deemed a navigable river at such parts: Keeicatin Power Co. v. Town of Kenora, and Hudson't Bay Co. v. Toicn of Kenora, 13 O. L. R. 237. The common law of England relative to property and civil rights — as introduced into this province in 1792, now enacted in R. S. O. 1S97 c. Ill, s. 1 — except in so far as repealed by Imperial legislation having force in this province, or by provincial enactments, is the rule for the decision of the same. Where a grant of land is made bordering on a river, if a tidal river, the title to the bed is presumed to remain in the Crown, unless otherwise expressed in the grant ; whereas, if non-tidal, whether navigable or not, the title in the bed ad medium filum aqua; is presumed prima facie to be in the riparian proprietor: Keeicatin Power Co. V. Town of Kenora, Hudson's Bay Co. v. Town of Kenora, 16 O. L. R. 1S4, 110 W. R. 266.* Held, that upon the true construction of the grant, and having regard to the provisions of s. 31 of the Surveys Act, R. S. O. 1897, c. 181, the river formed the northerly boundary, and the lot did not extend usque ad filum aqu70, r>!)0, followed: Held, also, that the question whether the river at and above and below the locus in quo was navigable or unnavigable need not be determined, in view of the decision of the Court of Appeal in Keeicatin Power Co. v. Town of Kenora (1908), 11 O. W. R 266. The plaintiff claimed as part of lot ."> a bar or deposit of gravel and sand below the bank of the river. This sand-bar as to vegetation retained the characteristics of a bed of the stream ; for the greater part of the year it was entirely covered with water, and during the remainder was frequently under water, while at times of freshets the water covered it to a depth of 25 or 30 feet, and sometimes over- flowed the bank, which was of at least that height : Held, that the * Reference to Legislation of L910, in addenda. 372 DISTURBANCE OF WATERCOUI bar had not become land formed by alluvion, but was still part of the bed of the river. Hindson v. Ashby (1S9G), 1 Ch. 78; (1896), 2 Ch. 1, followed : Williams v. Pickard, 15 O. L. R. 655. In ascertaining the rights of persons in an artificial watercourse the Court must take into account — first, the character of the water- course, whether it is of a temporary or permanent character ; secondly, the circumstances under which it was created; and thirdly, the mode in which it has been actually used and enjoyed : Baily v. Clarke, 71 L. J. Ch. 369; (1902) 1 Ch. 649; 86 L. T. 309; 50 W. R. 511. The rule in Dudden v. Glutton Union (26 L. J. Ex. 146, 1 H. & N. 627), that the owner of a source of a spring may not destroy the natural flow from the spring into the course of the stream fed by the spring, is not affected by the circumstances that at some remote date the issuing point of the spring has been built over, and an artificial channel formed for the passage of the water. Mostyn v. Atherton, 68 L. J. Ch. 629; (1899) 2 Ch. 360; 81 L. T. 356; 48 W. R. 168. As the defendants were dealing unreasonably with the water of the stream, so as to visibly and materially diminish the quantity of water coming down, and also polluting the water : Held, that the plaintiffs were therefore entitled to succeed, even without proof of actual damage, on the general principles of law as to the rights of the riparian owner laid down in Sampson v. Iloddinott (26 L. J. C. P. 148; 1 C. B. (N.S.) 590), and Wood v. Waud (18 L. J. Ex. 305; 3 Ex. 748) : Sharp v. Wilson, 93 L. T. 155; 21 T. L. R. 679. By the general law applicable to running streams every riparian proprietor has a right to the ordinary use of the water flowing past his land ; and he may also, provided that he does not interfere with the rights of other proprietors below or above him, dam up the stnam for the purpose of a mill : White v. White, 75 L. J. P. C. 14 ; (1906) A. C. 72 ; 94 L. T. 65. The right to the use of the flow of water, in its natural course, is not an easement, but is inseparably connected with, and inherent in the property in the land. It is parcel of the inheritance and passes with it. The rights of a riparian owner or occupant, with respect to the water of a stream, cannot be severed and conveyed in gross, so as to enable a third party to sustain an action in relation thereto : McCann v. Pidgeon, 40 N. S. It. 356. A riparian owner has a right to have the water flow to his land in its natural channel without material diminution in its volume or sensible change in its quality; and to use it for all ordinary and domestic purposes ; he has also a right to the reasonable use of it for commercial or other extraordinary purposes incident to the enjoy- ment of his property, provided he does not cause material injury or annoyance to other riparian owners : Brown V. Bathurst Electric and Water Power Co., 3 N. B. Eq. 543. di 37: A riparian propri a rij;ht to a reasonable use of the water for his domestic purposes and for his cattle, without regard in the cv interests • I lower down the stream: Minor v. CHlmour, 12 Moo. P. C. 156. See Ellia v. Clemens, 22 O. R. 216. The right to ase il to the prejudice of any proprietor of land above or below, by throwing back, diverting, or polluting it, is a right for which the claimant must shew a title by contract, prescrip- tion, or other adequate authority: Mason v. Hill, 5 B. & Ad. 1. The owner of the banks and bed of a river (not being a navigable one) may sever them and deal with them as with any other real estate: Elliott v. Bavrd, 20 Ohy. 549. See Attrill v. Piatt, 10 S. C. R. 425. The rule of the civil law that the lower of two adjoining estates owes a servitude to the upper, to receive all the natural drainage, has not been adopted in the Province of Ontario. What is a watercourse? considered : Williams v. Richards, 23 O. II. 651 ; Arthur v. G. T. R., 25 O. It. 37. The owner of the alvcus of a navigable river, and of the land on both sides of it, upon which a dam stands, has an absolute right to maintain it for the purpose of operating his mill by the use of the flowing water, and he has this right as an incident to the ownership of the property. Such a right must be exercised subject to the rights of other riparian proprietors to a reasonable use of the water and to the public right of passage. The public right is not a paramount right, but a right concurrent with that of the riparian owners. Roy 36 N. B. Reps. 113. Rights of dominant and servient tenements considered: Oliver v. Lockie, 26 O. R. 28. Effect of reservation in favour of Crown of free passage over navigable waters in a water lo1 : Cullerton v. Miller, 20 O. R. 36. Sections 3 to 6, inclusive, of the Act respecting Mills and Mill Dams (R. S. O. 1S97, c. 140), relate to appliances for passing timber. By section 15, when an action is brought against a millowner for overflow caused by his mill dam, and it appears that the injury was by a dam which was built before the purchase of the land by the grantee of the Crown, and before the grant thereof to him, and that the purchaser obtained a reduction of the price of the land, or was otherwise indemnified in consequence of its being so overflowed, then at the trial these facts may be taken into consideration. By R. S. O., 1S97, c. 141, an Act respecting Water Privileges, persons desiring to enter and acquire lands for improving water 374 DISTURBANCE OF WATERCOURSE. privileges may do so in the mode provided by the Act. An application is made to the County Judge. See Stats. 1905, c. 13, s. 13. By R. S. O., 1897, c. 142, an Act for Protecting the Public Interest in Rivers, Streams, and Creeks, provisions are made allowing the construction of improvements for the purpose of floating down timber and for levying tolls. See also Stats. 1902, c. 20. By R. S. O., 1897, c. 143, the Saw-logs Driving Act, provision is made for the proper management of driving logs down rivers and streams. See also Stats. 1901, c. 17. An easement to appropriate the water of a stream in a particular way (as by a dam to turn the water in a particular direction) may be acquired by an exclusive enjoyment for twenty years ; and where such a right is once created it is perpetual and passes with the inheritance: McLean v. Davis, 6 All. 26G (N.B.). Where damages are claimed for an obstruction to a watercourse, to entitle plaintiff to recover he must shew the whole damages resulted from the acts of the defendant: Foster V. Fowler, 2 Thorn. 425 (N.S.), In an action for obstructing a river by erecting a mill-dam, it is not a proper ques- tion for the jury whether the benefit derived by the public from the mill is sufficient to outweigh the inconveniences occasioned by the dam: Rowe v. Titus, 1 All. 326 (N.B.). Public navigable waters which open for navigation are not subject to prescription by which any private easement may be acquired in respect thereto (12 Ont. App. R. 327, affirmed) : London and Canadian Loan <& Agency Co. V. Warin, 14 S. C. R. 232. An injury to a watercourse is considered as an injury to a per- manent right, and in such a case the Court will grant the plaintiff a new trial, although the probable amount to be recovered by a verdict may not be large: Applegarth v. Rhymal, Tay. 590; Mitchell V. Barry, 26 U. C. R. 416. The right of drainage of surface water does not exist jure natura, and the principles applicable to streams of running water do not extend to the flow of surface water: Crewson v. Grand Trunk Rail- way Co.. 27 U. C. R. 68. While the owner of land has an undoubted right to drain it in the ordinary course of husbandry, he must take care that any water collected by his drains is carried to a sufficient outlet, and if the water is drained into a pond which is not large enough to hold the additional volume of water thus brought into it, he is liable in dam- ages to a person whose land is flooded by water overflowing from such pond. Young v. Tucker, 26 A. R. 162. It is only when improvements in a stream are made for the ex- press purpose of facilitating the floating of saw logs, lumber and timber, that tolls can be charged for their use under the Rivers and DISTURBANCE OF WATBBCOUB 375 Streams Act. A mill dam is nol such an ini])rovement, and the right of the lumberman conferred by K. S. 0. 1 " v 7, c. 118, to float saw logs, lumber ami timber over it is unaffected by that Act: In re Little Hob Hirer Hum. L':: A. K. 177. Held, that although the public may have in a river, such as the one in question, an easement or right to float rafts <»r logs down, and a right <>f passage up and down in Canada, etc., wherever the water is sufficiently high to be so used, such right is not inconsistent with an exclusive righl of fishing, or with the right of the owners of pro- perty opposite their respective lands ad medium fihtm aqua: Regina v. Robertson, (J S. 0. It. 52. In actions in which the King is a party in the construction of grants from the Crown, where there is an ambiguity in respect of the premises, as for instance what is to be considered the bank of a river, other grants from the Crown are admissible to assist in the construc- tion : Clark v. Bonny castle, 3 O. S. 528. High water mark is the limit of the highest ordinary state of the river, or its average height in its ordinary state after the spring flood has abated, not the highest limit reached in the year: Plumb V. McCannon, 32 U. C. R. 8. The great inland lakes of Canada are within the admiralty juris- diction, and offences committed on them are as though committed on the high seas; and, therefore, any magistrate of this Province has authority to enquire into offences committed on said lakes, although in American waters: Regina v. Sharp, 5 P. R. 135. Ownership of land or water, though not enclosed, gives to the proprietor under the common law the sole and exclusive right to fish, fowl, hunt or shoot, within the precincts of that private property, subject to game laws, if any ; and this exclusive right is not diminished by the fact that the land may be covered by navigable waters. In such case the public can use the water solely for bona fide purposes of navigation, and must not unnecessarily disturb or interfere with the private rights of fishing and shooting. Where such waters have become navigable owing to artificial works, the private right to fishing and fowling of the owner of the soil must be exer- cised concurrently with the public servitude for passage: Beatty v. Davis, 20 O. R. 373. The common law rule as to the flux and reflux of the tide being necessary to constitute a navigable river does not apply to our great lakes and rivers: Gage v. Bates, 7 C. P. 11G. See also Whelan v. llc- Lachlan, 16 C. P. 102; Parker v. Elliott, 1 C. P. 470. The owner of a servient tenement, who takes water by an arti- ficial stream from the dominant tenement, created by the owner of the latter for his own convenience for the purpose of discharging 376 DISTURBANCE OF WATERCOURSE. surplus water upon the servient tenement, acquires no right to insist upon the continuance of the flow, which may be terminated by the owner of the dominant tenement ; and the fact that the burden has been imposed for over forty years does not alter the character of the easement and convert the dominant into a servient tenement. The owner of a servient tenement taking water under such circumstances is not " a person claiming right thereto " within R. S. O. 1887, c. Ill, s. 35: Enor v. Harwell, 2 Giff. 410, distinguished: Oliver v. Lockie, 26 O. R. 28. There is no distinction in principle between riparian rights on the banks of navigable or tidal, and on those of non-navigable rivers. In the former case, however, there must be no interference with the public right of navigation, and in order to give rise to riparian rights the land must be in actual daily contact with the stream laterally or vertically : Lyon V. Fishmongers' Co., 1 App. Cas. 662, followed, and held to be applicable to every country in which the same general law of riparian rights prevails unless excluded by some positive rule or binding authority of the lex loci: North Shore R. W. Co. V. Pion, 14 App. Cas. 612. See S. C. sub nom. Pion v. North Shore R. W. Co., 14 S. C. R. 677. A riparian proprietor has not the absolute right to the natural and unobstructed flow of the water of a stream over his lands, but his right is a qualified one and subject to the lawful and reasonable user of the waters by a mill owner above him on the same stream, and this although the user above him may be at times for an extra- ordinary purpose. Dickson v. Carnegie, 1 O. R. 110. A proprietor of land on a stream has a right to the water flowing past him in its natural course, undiminished in quantity and quality ; and nothing short of a grant, or twenty years' use (which presumes a grant) of the water in a particular way and for a special purpose, can entitle some one proprietor on a stream in violation of this right of all, injuriously to divert or pen back the water from or upon the proprietors living above or below him on the stream: McLaren V. Cook, 3 lT. C. R. 299. A watercourse entitled to the protection of the law is constituted if there is a sufficient natural accustomed flow of water to form and maintain a distinct and denned channel. It is not essential that the supply of water should be continuous or from perennial living sources. It is enough if the flow arises periodically from natural causes and reaches a plainly defined channel of a permanent char- acter : Beer v. Stroud, 19 O. R. 10. When owing to an extraordinary flood a stream suddenly changes its course and washes away part of the land of a riparian proprietor, he is entitled at any time before prescriptive right or right by estoppel to keep the stream in its new channel is acquired against DI8T1 BB HfOE :,r FEBBY. him, to fill in the places ..ay, and to tui -am back to its original channel: County of York v. RoUa, 27 A. It. 72. That cannot be called a defined channel or watercour-^ which has no visible banks or margins within which the water can be confined ; and an occupant or owner of land has no right to drain into his neighbour's land the surface water from his own land not flowing in a defined channel. The rule of the civil law that the lower of two adjoining estates owes a servitude to the upper to receive all the natural drainage has been adopted in this province : McGillivray v. Millin, 27 U. C. R. 62, Crewson v. Grand Trunk R. W. Co., ib. 68, Darby v. Crotoland, 38 U. C. R. 338, and Beer v. Stroud, 19 O. R. 10 considered: Williams v. Richards, 38 O. R. 651. The owner of land through which unnavigable water flows in its natural course is proprietor of the latter by right of accession ; it is at his exclusive disposition during the interval it crosses his property, and he is entitled to be indemnified for the destruction of any water power which has been or may be derivable therefrom : Lefebvre v. The Queen, 1 Ex. C. R. 121. The cutting of a channel through ice formed on a water lot in a navigable harbour, to enable ice cut outside to be conveyed to the shore of the harbour, is a use of the water lot for the purpose of navigation : and the owner of the water lot, the grant of which was subject to the rights of navigation, cannot interfere with such user: McDonald V. Lake Simcoe Ice and Cold Storage Co., 31 S. C. R. 130. In their counterclaim the defendants averred that clams were dug out of flats which were in front of the defendants' farm, and were included down to low water mark in a grant from the Crown to the defendants' predecessors in title, 70 years ago. The grant also pro- fessed to convey a right of fishing : Held, that the grant of such a right of fishing would be invalid as against other subjects, whatever its force might be as against the Crown. Two elements essential to the establishment of such exclusive right of fishery: (1), proof shewing a user of or a dealing with the right of fishery to the exclusion of others, as a risht of property, separate and distinct in itself; (2), the absence of anything to shew that its origin was modern. Unless a several fishery in tidal waters was in being before Magna Charta it cannot be created by subsequent grant. In view of the date of settle- ment of the province, there could be no appropriation of a several fishery in tidal waters by the Crown or by a private person so as to admit of an effectual grant thereof by the Crown. Donnelly v. Yroom, 40 N. S. R. 5S5. FERRY. In an action for disturbing plaintiff's ferry, it is not necessary to prove that defendant either received or claimed any hire or payment : 378 INFRINGEMENT OF COPYRIGHT. Burford v. Oliver, Dra. 9. The omission to furnish full accommoda- tion to any number of persons offering themselves to be ferried over is no defence to an action for a disturbance of an admitted right : Hickley v. Oildersleeve, 10 U. C. C. P. 460. Particulars ordered in an action on the case of disturbing a ferry, as to the number of passen- gers, goods, &c, conveyed : Ives v. Calvin, 1 Ch. Ch. 8. The owner of a ferry cannot maintain an action for loss of traffic caused by the construction of a bridge. The dictum of Blackburn, J., in Reg. V. Cambrina Railway (40 L. J. Q. B. 169 ; L. R. 6 Q. B. 422), is overruled by Hopkins v. Great Northern Railway (46 L. J. Q. B. 265; 2 Q. B. D. 224) ; Dibden v. Skirrow, 77 L. J. Ch. 107; (1908) 1 Ch. 41 ; 97 L. T. 658 ; 71 J. P. 555 ; 6 L. G. R. 108 ; 24 T. L. R. 70. See Ontario Statutes, 1909, c. 60. ACTION FOR INFRINGEMENT OF COPYRIGHT.* R. S. C, c. 70, the Copyright Act, contains full provisions as to who may obtain copyright and how copyright may be obtained. COPYRIGHT. Subjects and conditions of copyright. Who may 4. Any person domiciled in Canada, or in any part of the have copy- p r itj s h possessions, or any citizen of any country which has an international copyright treaty with the United Kingdom, who is the author of any book, map, chart, or musical composition, or of any original painting, drawing, statue, sculpture or photograph, or who invents, designs, etches, engraves, or causes to be engraved, etched, or made from his own design, any print, cut, or engraving, and the legal representatives of such person or citizen shall for the term of For twen- twenty-eight years from the time of recording the copyright thereof ty-eight j n t jj e manner hereinafter directed, have the sole and exclusive right years. and liberty of printing, re-printing, publishing, reproducing, and vending, such literary, scientific or artistic work or composition, in whole or in part, and of allowing translations of such work from tions. one language into other languages to be printed or reprinted and sold. Duration. 5. In no case shall the sole and exclusive right and liberty in Canada continue to exist after it has expired elsewhere. Conditions 6. The condition for obtaining such copyright shall be that the • _ n/Y __ " said literary, scientific, or artistic works shall be printed and pub- iiig copy- right, lished, or reprinted and republished in Canada, or in the case of * The Exchequer Court of the Dominion has jurisdiction over questions relating to copyrights, patents, and trade marks. [NFBINGEMENT OF COPYRIGHT. 379 works of art, that they shall be produced or reproduced in Canada, whether tliey are so published or produced for the first time or con- temporaneously with or subsequently to publication or production elsewhere. 7. No literary, scientific or artistic work, which is immoral, Exception licentious, irreligious or treasonable, or seditious, shall be the legiti- as t() ' m .... • , moral mate subject of such registration or copyright. works. 8. Every work of which the copyright has been granted and is Copyright subsisting in the United Kingdom, and copyright <>f which is not > n p*"^.* , . . . , , . „ .of liritiih secured or subsisting in Canada, under any Act of Parliament of copyright Canada, or of the Legislature of the late Province of Canada, or of works. the Legislature of any of the Provinces forming part of Canada, shall, when printed and published, or reprinted and republished in Canada, be entitled to copyright under this Act; but nothing in this Act shall except as hereinafter provided be held to prohibit the im- Importn- portation from the United Kingdom of copies of any such work tl(JU - lawfully printed there. 2. If any such copyright work is reprinted subsequently to its Foreign publication in the United Kingdom, any person who has previously reprints imported to the date of entry of such work upon the Registers of Copyright, may be imported any foreign reprints, may dispose of such reprints by sale sold. or otherwise ; but the burden of proof of establishing the extent and B ur den of regularity of the transaction shall in such case be upon such person, proof. International copyright is governed by 7 and 8 Vict., c. 12. The Imperial Fine Arts Copyright Act, 1S62, confers on British subjects and persons resident in British dominions copyright in pictures, drawings and photographs. It extends to the whole of the United Kingdom, but does not extend to any part of the British dominions outside the United Kingdom : Tuck e Invaded by the importation of lawful British reprints. But if the Canadian copyright is first on the part of the author or his assigns, then under section 4 the monopoly is secured from all outside importations: Anglo-Canadian Music Pub- lishers' Association ( Limited) v. Suckling, 17 O. It. 239. A person resident in England who procures a book for valuable consideration to be compiled for him, the compiler not reserving his rights, is the proprietor thereof, and entitled either personally or through an agent in Canada to copyright under the Copyright Act, R. S. C. c. 62. Printing and publishing the book from stereotype plates imported into Lanada is a suflicient "printing" within the meaning of the Act, though no typographical work is done in preparation of the copies. American reprints of the plaintiff's copyright book, added as an appendix to American reprints of the Bible imported into Canada. were held to be a violation of the plaintiff's rights : Froicde v. Parrish, 27 O. R. 520, 23 A. R. 728. Held, that section 17 ot the Imperial Act to amend the Copyright Act 5 & 6 Victoria, c. 45, prohibiting importation of foreign reprints by any person not being the " proprietor " of the copyright, or some person authorized by him, is now in force in Canada : Morang v. Publisners' Syndicate, 32 O. R. 393. The purely commercial or business character of the composition of a compilation does not oust the right to protection of copyright, if time, labour and experience have been devoted to its production : Church V. Linton, 25 O. R. 131. Section 5 of C. S. C. c. 81, is merely directory, and so the neglect of the author of a work to deposit a copy thereof in the library of Parliament does not incapacitate him from proceeding for the in- fringement of it : Oriffin v. Kingston & Pembroke Railway Co., 17 O. R. 660. Section 33 of the Copyrighl Act, R. S. (\ 62, does nol impose the penalty mentioned therein upon the owner of a Canadian copy- right in respect to a musical composition, who has a work printed abroad ami inserts notification of the existence of such copyrighl on copies published in Canada: Lanccfirld v. Anglo-Canadian Music Pub- lishing Association, Limited, 26 O. R. 457. Tue Imperial Parliament has sanctioned and reiterated colonial legislation, whereby the possessor of a prior Canadian copyright is secured completely acainst all interference to the territorial extent of the Dominion, even as against English reproductions or copies made under a subsequent British copyright : lb. The assignee of a copyright granted in England under 5 & 6 Vict. c. 45 (Imp.) is entitleu to copyright of the same work, etc., in 384 INI, ENT OF TRADE MARK. Canada by having it registered at the Department of Agriculture, under the provisions of R. S. C. c. 62, s. 6. Upon suit Brought for infringement of such a copyright, the certificate of its registration by the proper officer of the department, together with proof of the assignment of the British copyright, is sufficient evidence of the plaintiff's title to the same. Evidence, in addition to the foregoing, that the work had been entered at Stationers' Hall, London, Eng., entitles the plaintiff to his remedy under the Imperial Act : Anglo- Canadian Music Publishers Association v. Dupuis, Q. R. 27 S. C. 485. ACTION FOR INFRINGEMENT OF TRADE MARK See Dominion Acts, as to Exchequer Court. (R. S. C. c. 140, s. 23.) The Trade Mark and Design Act, R. S. C. c. 71, contains the following provisions : 4. In this part unless the context otherwise requires : — Defini- ( a ) " General trade mark " means a trade mark used in con- nection with the sale of various articles in which a proprietor deals in his trade, business occupation, or calling generally ; (6) "Specific trade mark" means a trade mark used in con- nection with the sale of a class of merchandise of a particular de- scription. What shall 5. All marks, names, labels, brands, packages or other business be dtemed devices, w hich are adopted for use by any person in his trade, busi- to be trade .... marks. ness, occupation, or calling, for the purpose of distinguishing any manufacture, product or article of any description manufactured, produced, compounded, packed, or offered for sale by him, applied in any manner whatever, either to such manufacture, product, or article, or to any package, parcel, case, box or other vessel or receptacle of any description whatsoever containing the same, shall for the pur- poses of this Act be considered and known as trade marks. The principle on which the Court protects trade marks Is that it will not permit a party to sell his goods as the goods of another : AfcCall v. Theal, 28 Chy. 48. Trade marks are provided for by R. S. C. c. 71. The questions to be determined are : 1. Whether the defendant's mark is a colourable imitation of the plaintiff's mark. 2. Whether the defendants have been selling goods so marked, bo as to lead purchasers to believe that they are the plaintiff's goods: Mitchell v. Henry, 15 Chy. D. 181 C. A. See Bush V. Ilanson, 2 Ex. C. R. 557 ; Be Kuyper v. VanDulken, 24 S. C. R. 114. To found an action at law there must have been an intention to deceive and make the goods pass as those of the tradesmen who [NFBINGEMENT OF TEASE MASK. .'-{85 had appropriated the marks, and the questions for the jury are: Is the resemblance such as to deceive ordinary persons? Was the mark adopted by the defendant with that intent, and in order to supplant the plaintiff's goods? If the jury find in the affirmative, no special damage need have been proved. It is not necessary that the defendant should be aware that the mark had been appropriated by the plaintiff: Fox v. Millington, 3 Myl. & Cr. 338. It is not necessary to shew that defendant's goods are inferior to the plaintiff's : Blofield v. Payne, 4 B. & Ad. 410. Evidence of prim- user is available as a defence: Partlo v. 'I'mld. 17 S. C. R. 196. See Robinson v. Bogle, 18 O. R. 387. Want of registration considered : Carey v. Gobs, 11 O. R. 119- No one can properly register or retain on the register a trade mark for goods in which he does not deal and has not, at the time of registration, some definite intention to deal: Bait v. Dunnett, 68 ju. J. Ch. 557; (1899), A. C. 428; 81 L. T. 94. Where an action is brought to restrain a colourable imitation of the make-up of goods, it must be proved beyond question that the goods are so got up as to be calculated to deceive. No general rule can be laid down and each case must be judged by its own circum- stances. Whether a customer would be likely to be deceived is not a proper question to put to a witness, for it is for the Court (and not for the witness) to decide, after inspection of the exhibits and paying regard to the evidence, whether a customer would be likely to be deceived by the make-up of the goods. It is not sufficient to shew that by a trick or device a retail trader might be able to pass off the goods of one for those of another: Payton v. Bnelling, Lampard ct Co., 70 L. J. Ch. 644: (1901), A. C. 308; 85 L. T. 287. It is only a mark or symbol in which property can be acquired and which will designate the article on which it is placed as the manufacture of the person claiming an exclusive right to its use, that can properly be registered as a trade mark under the Trade Mark and Design Act, 1879. A person accused of infringing a registered trade mark may shew that it was in common use before such registration, and therefore could not properly be registered notwithstanding the provision in section 8 of the Act, that the per- son registering shall have the exclusive right to use the same to designate articli manufactured by him. Where the st:i : scribes no moans of rectification of a trade ma tered, the Courts may afford relief by way of defence action for infrin; Partlo v. Todd, ut supra. acquired in marks, etc., known to a particular trade as designating K.K. — 25 386 INFRINGEMENT OF TRADE MARK. quality morely, and not in themselves indicating that the goods to which they are affixed are the manufacture of a particular person. Nor can property be acquired in an ordinary English word expressive of quality merely, though it might be in a foreign word or word of a dead language. Judgment appealed from (14 Ont. App. R. 444, affirmed) : Partlo v. Todd, 17 S. C. R. 196. The imitation of labels and wrappers whereby the public are misled and the plaintiff will be restrained as a fraud upon him, and though an imitation will be deemed colourable if it be such that a careful inspection is required to distinguish it, yet a Court will not interfere when ordinary attention would enable a purchaser to discriminate. It is not enough that a careless, inattentive or illiterate purchaser might be deceived by the resemblance: Johnson et al. v. Parr, R. E. D. 98 (N.S.). If by the laws of any country the makers of certain goods are required to put thereon certain prescribed marks to denote the stan- dard or character of such goods, and goods bearing the prescribed marks are exported to Canada and put upon the market here, it is not possible thereafter and while such goods are to be found in the Canadian market, for any one to acquire in Canada a right to the exclusive use of such prescribed marks to be applied to the same class of goods, or to the exclusive use of any mark so closely re- sembling the prescribed marks as to be calculated to deceive or mis- lead the public. The fact that such marks were not trade marks, but marks used to comply with the statutes of the country of origin, would not in that respect in any way alter the case. Quwre, whether any one would in such a case be precluded from acquiring a right in Canada to the exclusive use of such a trade mark, where there was no importation into Canada of goods bearing the prescribed foreign marks : Oorham Manufacturing Co. v. Ellis, 8 Ex. C. R. 401. Where a design is registered as applicable to pattern special and configuration, the registration applies to the design as a whole, and it is protected although in one of these particulars it may not be novel: Harper v. Wright (1896), 1 Ch. 142. Where a retail trader innocently buys and sells a small quantity of goods, which turn out to be an infringement, of the trade mark, lie will not be liable as a matter of course for the costs of an action for infringement: American Tobacco Co. v. Quest (1897), 1 Ch. 630. There can be no infringement unless the similarity is so close as to give rise to a reasonable probability of deception. Where there is no reliable evidence of persons having been actually misled, it is for the Court to determine the question by consideration of the words themselves: Kerstein v. Cohen, 11 O. L. R. 450, 7 O. W. R. 247, 8 O. W. R. 934. In deciding whether a trade mark so resembles another as to be calculated to deceive, visual resemblance is not necessarily the only INFRINGEMENT OF TBADE M' 387 thing to be considered; the possibility of confusion to the ear may also be an element. The letter "B" stamped on buttons of braces manufactured by the defendants in the Miner as the plain- tiffs' trade mark — the letter " I) " — was stamped on the buttons of braces manufactured by them, was held to be an infringement: Doran v. Hogadore, 11 O. L. R. 321, 7 O. W. R. 340. Apart trom any consideration as to registered trade marks an action lies at common law to restrain a trader from applying to his goods the name of a place in which they were not manufactured, and where the adoption of such a name tends to confuse his goods in the eyes of the public with those of a rival trader who has made his goods known to the public under a designation including the name of their place of origin or manufacture: Paost Brewing Co. v. Ekers, Q. R. 20 S. C. 2U. A man cannot have a monopoly in a geographical name as such. There must be some secondary meaning connoting character or quality of the produce: Rose v. McLean, 27 O. R. 325. An " invented " word must not only be newly coined in the sense of not being already current in the English language, bur must not convey any meaning, or at any rate any obvious meaning to ordin- ary Englishmen, as distinguished from scholars, until a meaning has been assigned to it. While a word found in the vocabulary of a foreign language may be an " invented " word, a foreign word is not " invented " merely because it is not current in the English lan- guage : Phillipart v. Whiteley, 77 L. J. Ch. 650; (1908), 2 Ch. 274; 99 L. T. 291; 24 T. L. R. 707. Where goods are not manufactured, but are the natural product of a particular locality, the name of which necessarily forms part of any real description of the goods, the first user has no exclusive right to call his goods by the name of the place: Montgomery v. Thompson (60 L. J. Ch. 757; (1891), A. C. 217) distinguished: Grand Hotel Company of Caledonia Springs, Ltd.. v. ^Yilson, 73 L. J. P. C. 1 ; (1904), A. C. 103; 89 L. T. 456; 52 W. R. 286: 20 T. L. R. 19. A person cannot be absolutely restrained from carrying on busi- ness in his own name; he can only be restrained from carrying on business in his own name without taking reasonable precautions to prevent his business or goods being confounded with those of another person: Cash Ltd. v. Cash, SO L. T. 211; 50 W. R. 280. A word may be at the same time both descriptive and distinctive, but the fact that it retains its prima facie descriptive signification increases the difficulty of proving that it is distinctive of the goods of any particular manufacture. If a word is prima fade the name of or descriptive of an article, evidence that it is also generally associated with the name of a particular manufacture is not conclusive that 388 INFRINGEMENT OF PATENT. it has become a distinctive word which cannot be used of the same article when made by others without risk of deception: Burberrys v. Cording, 100 L. T. 985; 25 T. L. R. 570. ACTION FOR INFRINGEMENT OF PATENT. The granting of letters patent to inventors is not the creation of an unjust monopoly nor the concession of a privilege by mere gratui- tous favour, but it is a contract between the State and the discoverer, which, in favour of the latter, ought to receive a liberal interpreta- tion : Barter v. Smith, 2 Ex. C. R. 455. An invention is different from a discovery. A discovery is not a subject matter for a patent unless it is an advantage to knowledge, but to known inventions and produces either a new and useful thing or result, or a new and useful mode of producing an old thing or result: Lane Fox v. Kensington, C. A. (1892), 3 Ch. 424, at page 428. The issue of patents is regulated by R. S. C, c. 69. The patent is proved by producing the patent itself. By section 50 the seal of the patent office is to be evidence, and all copies or extracts certified under the seal of the patent office shall be received in evidence without further proof and without pro- duction of the originals. The plaintiff must prove that the article was not made by him or his agents. The question of fraudulent intention to infringe is not material; the acts alone are material. The plaintiff must, in the first instance, give some slight evidence of the nature and novelty of the invention. Prior use may avoid a patent, though not generally if the use was not secret. The issue of a patent of invention raises a presumption in favour of the patentee that the article is a valid subject-matter of a patent. The onus of proof is on the party who attacks the patent to establish the contrary : Electric Fireproofing Co. v. Electric Fire- proofing Co. of Canada, Q. R. 31 S. C. 34. The plaintiff must elect whether he will proceed for damages or for an account which the Court may award. He cannot have both : Betts v. BeVitre, L. R. 6 H. L. 319; Beam v. Merner, 14 O. R. 412; Ball v. Crompton, 13 S. C. R. 4G9. One who knowingly and for his own end and benefit, and to the damage of the patentee, induces or procures another to infringe a patent, is himself guilty of an infringement : Copeland-Chatterson Co. v. Ration, 2G C. L. T. 528, 10 Ex. C. R. 224. DEFENCE. DEFENCE. 1. Denial of grant. 2. Denial of infringement. A slight deviation from the process described in the specification, for the purpose of evading the patent, is a fraud. The question is whether the defendant's mode is substantially different. If a well-known equivalent, chemical or mechanical, is substituted by the defendant for part of the patent invention, it is a mere colour- able variation, and therefore an infringement. The mere insertion of one known article in place of another in a combination is not patentable: Wisner v. Ooulthard, 22 S. C. R. 178; referring to Smith v. Qoldie, 9 S. C. R. 4>'<; Hunter v. Carrick, 11 S. C. R. 300; Carter v. Hamilton, 23 S. C. R. 172. A patent for a combination of several things, old and new, is infringed by an imitation of that part which is new. Although all the individual parts of a machine may lack novelty, yet if, by a new combination of them, a decided improvement in the working is attained, that is sufficient to support a patent of inven- tion, and the Courts look with favour upon any slight change where- by an improvement is effected, and find invention in it if they can : Mattice V. Brandon Machine Works Co., 17 Man. L. R. 105. Where the merit of a patented invention consists in the idea or principle embodied in it, and not merely in the means used to carry the principle into effect, there may be an infringement in the ap- plication of the principle by other methods. But where there is no new idea, but only a new combination of old ideas, in the patented article, there is no infringement where only some of the means are used, but a material element is omitted: Consolidated Car Heating to. v. Came, 72 L. J. P. C. 110; (1903), A. C. 509; SO L. T. 224. A device resulting in the first useful and successful application of certain known arts and processes in a new combination for manufacturing purposes is not unpatentable for want of novelty, merely because some of the elements so combined have been previously used with other manufacturing devices. Judgment in Clinton Wire Cloth Co. v. Dominion Fence Co., 11 Ex. C. R. 103. affirmed: Domin- ion Fence Co. v. Clinton Wire Cloth Co., 39 S. C. R. 535. The mere manufacture and sale of an article, part of a com- bination patent, is not an infringement of that patent even if the article has no use except for the purpose of infringement: Totonaend v. Howarth (4S L. J. Ch. 770 n. : 12 Ch. 1>. 831 n.) followed. Biket v. Howarth (48 L. .7. On. 70!); 12 < - h. D. 826) distinguished. Dun- lop Pneumatic Tire Co. v. Moaeley, 73 L. J. Ch. 417; (1904), 1 Ch. 612; 91 L. T. 40; 52 W. K. 454 : 20 T. L. R. 314. 390 INFRINGEMENT OF PATENT. "Utility" in patent law does not mean either abstract utility or comparative utility, or commercial utility. An invention is useful if it provides a thing better in some respects though worse in others than what is already known. Thus, a mode of producing illuminant appliances more durable than those previously known, or which offers to the public a new choice of material to be used in the production of illuminant appliances, is patentable, although the new appliance is less illuminant than the old one : Wtlsbach Incandescent Gas Light Co. v. New Incandescent {Sunlight Patent) Gas Lighting Co., 69 L. J. Ch. 343; (1900), 1 Ch. 843 ; 82 L. T. 293 ; 48 W. R. 362. 3. That the plaintiff is not the first inventor, or that the inven- tion is not new. 4. Public user before patent granted. If the invention was publicly put in use by the inventor before the grant, it will avoid it, though mere knowledge and publication of it after invention but before grant will not. The use of an invention by the inventor or by other persons under his direction by way of experiment and in order to bring the invention to perfection, is not such a public use as, under the statute, defeats his right to a patent. But such use of the invention must be experi- mental, and what is done in that way must be reasonable and neces- sary and done in good faith for the purpose of perfecting the device or testing the merits of the invention ; otherwise the use in public of the device or invention for a time longer than the statute prescribes will be a dedication of it to the public, and when that happens the inventor cannot recall the gift : Conway v. Ottawa Electric R. W. Co., 8 Ex. C. R. 432. By the true construction of s. 8 of the Canadian Patent Act, R. S. C. c. 61, as amended by 55 & 56 Vict. c. 24, s. T, a Canadian patent expires as soon as any foreign patent for the same invention existing at any time during the continuance of the Canadian patent expires. A British patent is a foreign patent within the meaning of the Canadian Patent Act: Dominion Cotton Mills Co. y. General Engineering Co. of Ontario (1902), A. C. 570. 5. That the specification does not truly describe the invention and how it is to be performed. Section 13 of R. S. C. c. 69, sets out the requisites for the specification. Section 29 of the same Act voids a patent if any material alle- gation in the petition or declaration of (he applicant required by the Act in respect of such patent is untrue, or if the specifications and drawings contain more or less than is necessary for obtaining the end for which they purport to bo made when such omission or addi- rNFBINGEMJ I \l BNT. 391 tion is wilfully made for the purpose of misleading. If the omission or addition were involuntary, a patenl may be allowed to be good to il extent. A specification may be void for uncertainty: Taylor v. Brandon Mfg. Co., 2] A. R. 361. Sections 31, 32, 33 and 34, deal specially with actions for in- fringement of patent, and provide that such actions may be brought in any Court of Record having jurisdiction to the amount of the damages claimed in the Province in which the infringement is alleged to have taken place, and which is also that one of the said Courts which holds its sittings nearest to the place of residence or business of the defendant. Power is given to issue injunctions, and where it appears that the defendant used or infringed any part of the inven- tion justly and truly specified and claimed as new, the Court may discriminate. The defendant is allowed to plead specially, as matter of defence, any fact or default which, by the Act itself or by law, renders the patent void. 6. License to use. If an interest is transferred in a patent then it requires the con- sent of both parties to put an end to the transfer, but if the trans- action is merely permission on certain terms to invade the monopoly, then the licensee may at his option renounce the license and make the machine patented at his peril: Noxon v. Noxon, 24 O. R. 401. 7. Right acquired by prior manufacturer under section 54 of Patent Act: Fowell v. Chown, 25 O. R. 71. 'I ne patentee must be the firs' inventor in Canada or elsewhere. A prior patent to a person who is nol the true inventor is no de- fence against an action by the true inventor under a patent issued to him subsequently, and does not require to be cancelled or repealed by scire facias whether it is vested in the defendant or in a person not a party to the suit: Smith v. Qoldie, !) S. C. 46. Interest in Patent — Licensee. — The holder of patents for improve- ments in certain agricultural implements agreed to assign to the defendant the exclusive righl to sell these implements, but not to manufacture them; and in certain contingencies he also agreed to assign the patents themselves. In fact the patents were invalid for want of novelty, and the defendant having re-assigned any interest he had in the patents claimed the right to manufacture the implements for his own benefit: Held, that the effect of such agreement was not to constitute th< a\ a partner, but to give him an interest in the patents; and that he was not a mere licensee of the patentee: Gillies v. Colton, 22 Chy. 12::. A patent granting the exclusive righl of making, constructing, using, and selling to others to be used, an invention, as described in the speci- 392 INFRINGEMENT OF PATENT. fications set tin- forth and claiming the method of manufacture, pro- tects not only the process but the thing produced by that process, and an action will lie against any person purchasing and using articles made in derogation of the patent, no matter where they came from, and although the plaintiff cannot have both an account of profits and also damages against the same defendant, he may have both remedies as against different persons (e.g., maker and purchaser), in respect of the same articles. A keeping of the accounts pending the action against the importers does not operate as a license to justify the sale of the articles: it is only an expedient to preserve the rights of all parties to the close of the litigation. Toronto Auer Light Company v. Colling, 31 O. R. 18. If letters patent refer to a specification and description of the invention as being filed in the Provincial Secretary's office, they form part of the letters patent, and must be produced in an action for infringement of the patent: Lusk v. Miller, Mich. T. 1872 (N.B.). Where the subject of a patent is a new combination of old devices, the patentee cannot import such devices in a manufactured state, and simply apply his combination to them in Canada without violating the prohibition against importation contained in section 28 of the Patent Act, 1872: Mitchell v. Hancock Inspirator Co., 2 Ex. C. R. 539. A patent is good for a combination of old or before-used inven- tions as well as for an entirely new one, provided the patentee does not claim it as an invention new in all its parts, buT merely for the improvement in the combination : Emery v. Iredale, Emery v. Hodge, 11 U. C. C. P. 106. The application to a new purpose of an old mechanical device is patentable when the new application lies so much out of the track of the former use as not naturally to suggest itself to a person turning his mind to the subject, but requires thought and study. The application to an oil pump of the principle of " rolling contact " was held patentable : Bicknell v. Peterson, 24 A. R. 427. Though the number of mechanical powers are limited their combinations may be very numerous; and a new combination of previously known implements or elements is the proper subject of a patent: Patric v. Sylvester, 23 Gr. 573. An invention consisting of a new and useful combination of well known materials or devices, which produces a result not theretofore so obtained, is a proper sub- ject for a patent : Toronto Telephone Manufacturing Co. v. Bell Tele- phone Co., 2 Ex. C. R. 405. A new combination of known elements is an invention, and as such is patentable. The person who has devised such new combination has all the rights and privileges of an inventor, even if the novelty consists in a trifling mechanical change, provided, in the latter case, some economic or other result is produced in some way d"fferent from what was obtained before: Mitchell v. Hancock Inspirator Co., 2 Ex. C. R. 539. An action for the infringement of a patent should not ordinarily be trfea by a jury: iM i;iNc;i..\ii..\T OF 1'Ai i:nt. I ermilyea v. Guthrie, 9 P. H. 2»;7. Daring the existence of a li the licensor cannot dispute the validity of a patent obtained by him and afterwards assigned by him for value to another: Whiting v. Tuttlr, 17 Gr. 454. Where one who says he is the inventor of any- thin,' has had an opportunity to hear it from other sources, and II y where delay has occurred on his part in patenting his in- vention, his claim that he is a true inventor ought to be carefully weighed: American Dunlop Tire Co. v. Goold Bicycle Co., 6 Ex. C. R. 223. To be entitled to a patent in Canada the patentee must be the first inventor in Canada or elsewhere. A prior patent to a person who is not the true inventor is no defence against an action by the true inventor under a patent issued to him subsequently, and does not require to be cancelled or repealed by scire facias, whether it is vested in the defendant or in a person not a party to the suit : Smith V. GoUlic, u S. C. R. 4G. It is not illegal to manufacture and sell an article in this country which has been patented in the United States, and put upon it a statement that it is so patented as a recommenda- tion of it so long as there is no infringement of a valid existing patent in this country: Kidder v. Smart, Kidder v. Smart J/anw/ac- turiny Co., S O. R. 362. Section 46 of the Patent Act, R. S. C. c. 61. does dot authorise one who has with the full consent of the patentee man ufar-t tired and sold a patented article for less than a year before the issue of the patent, to continue the manufacture after the issue thereof, but merely permits him to use and sell the article manufactured by him prior thereto: Fovcll v. Ghoton, 2T> O. R. 71. Under the general order of the Exchequer Court of Canada bearing date the 5th of December, 1892. and the provisions of section 41 of 15 & 16 Vict. c. S3 (Imp.), the defendant in an action of scire facias to repeal a patent for invention is entitled to begin and give evidence in support of his patent, and if the plaintiff produces evi- dence to impeach the same the defendant is entitled to reply : The Queen v. T.aForcc. 4 Ex. C. R. 14. The expression "any foreign patent " occurring in the concluding clause of section S of the Patent Act, " under any circumstances if a foreign patent exists, the Canadian patent shall expire at the earliest date on which any foreign patent for the same invention expires," must be limited to foreign patents in existence when the Canadian patent was granted: Auer Incandes- cent Light Manufacturing Co. v. Dreschel, 6 Ex. C. R. 55, 28 S. 0. R. 60S. Held, that the delay (without any excuse) of a patentee for the period of a little more than a year and nine months, after full knowledge of an inadvertence and mistake in their original patent. and after professional advice on the subject, and after a re-issue of the same patent in the United States, founded upon the sole all inadvertence or mistake (during which period manufacture had been carried on in the United States under a re-issue there), before the 394 ACTION FOR DECEIT. application for a re-issue in this country, is fatal to the validity of the re-issue here: Kidder v. Smart Manufacturing Co., 8 O. R. 362. The condition in s. 37 of the Patent Act that a patent shall become void if the patentee does not within two years of the date of the patent, or any authorized extension of such period, commence and after such commencement continuously carry on in Canada the construction or manufacture of the invention patented, in such a manner tnat any person desiring to use it may obtain it or cause it to be made for him at a reasonable price at some manufactory or establishment for making or constructing it in Canada, should be construed to mean that the patentee must not only manufacture his invention in Canada, but manufacture it in such a manner that any person who desires to use it may buy or obtain an unconditional title to it at a reasonable price. 2. It is not a compliance with the above condition that a person who desires to buy or obtain an unconditional title to the patented invention is put in a position to obtain the use of it at a reasonable rental: Hildreth v. McConnick Manufacturing Co., 26 C. L. T. 782. ACTION FOR DECEIT AND MISREPRESENTATION. An action will lie in respect of a fraudulent representation made by the defendant to the plaintiff, intended to be acted on by him, and on which he has acted and thereby suffered damage : Pasley v. Freeman, 3 T. R. 51. In an action for deceit the plaintiff must shew misrepresentations amounting to fraud on the part of the defendant, and also misrepre- sentations sufficiently substantial to warrant the inference that but for such misstatements the plaintiff would not have entered into the contract: Smith v. Chadwick, 20 Ch. D. 27, 45, 9 App. Cas. 187; Berry v. Peek, 14 App. Cas. 373 ; Barrett v. Guesner, 1 O. W. N. 231. To entitle a plaintiff to succeed in a passing-off case, he need not prove fraud in the defendant, or give evidence that any single person was deceived. London General Omnibus Co. v. Lavell (70 L. J. Ch. 17; (1901) 1 Ch. 133) observed upon: Bourne v. Rivan and Edgar, 72 L. J. Ch. 168; (1903) 1 Ch. 211 ; 87 L. T. 589; 51 W. R. 213. An innocent person who has by the fraudulent misrepresenta- tions of others been induced to take part with them in the commis- sion of a criminal offence — malum prohibitum — for which he has been neither tried nor convicted, and who has been induced by those who procured his participation to believe the proceeding neither crim- inal nor against public policy, can maintain an action against those by whose inducements and false statements he was led to commit it, and recover damages from them for losses he has sustained : Burroxot n. .'-595 v. Rhodes. 08 L. J. Q. B. 545; (1899) 1 Q. B. B16; BO L. T. 591; 48 W. R. 13; 63 J. P. 532. A claim in an administration action against the estate of a de- ceased testator for damages, on the ground that the claimant was induced by the misrepresentation of the testator to purchase from him certain worthless shares in a company, is in the nature of a claim for unliquidated damages in an action for deceit, although the claim is made for the actual price paid for the shares, such a claim falls within the maxim actio personalis moritur cum persona, and it is not maintainable: Duncan, In re; Terry v. Sweeting, OS L. J. Ch. 387 ; 80 L. T. 322 ; 47 W. R. 379. An action of deceit will lie against an auctioneer who, being em- ployed to effect the sale of a piece of property, concealed from his principal a material fact, by reason of which concealment the latter sold the property for a smaller sum than he could have obtained if he had been in possession of all the facts. Such failure of duty on the part of the auctioneer towards his principal deprives him of any right to the compensation agreed to be paid to him upon the sale being effected : Ring v. Potts, 30 X. B. Reps. 42. To sustain an action for deceit actual fraud must be proved, which is to be judged of by the nature and character of the representations made considered with reference to the object for which they were made, the knowledge, or means of knowledge, of the person making them, and the intention which the law fully imputes to produce those consequences which are the natural results of his acts ; and it must also be established that such fraud was the inducing cause of the contract, and must have produced in the mind of the person alleged to be defrauded an erroneous belief influencing his conduct: Garland v. Thompson, 9 O. R. 370. A person who induces another let with him as the agent of a third party, by an unqualified assertion that he is such agent, is answerable to the person who so contracts for any damages which he may sustain by reason of the assertion being untrue. And costs incurred by such third person in an action against the supposed principal for the recovery of damages may be recovered as damages: Eckstein v. Whitehead, 10 U. C. C. I'. 65. An action for deceit will lie against a corporation: .1/oorc v. Ontario Investment Association, 16 O. R. 269. Demurrer to a statement of claim for damages auainst a company wherein it was alleged thai the plaintiff was induced by fraudulent statements in the annual reports of the company, and in letters written to him by the president, to purchase stock practically from the company, which stock was valueless, overruled with costs: 76. The payment may be ratified and the agency adopted, even though the person receiving the money has by his false representati mitted an indictable offence: Scott v. Hank of New Brunswick, 23 S. C. R. 277. Where a buyer seeks to recover damages by an action 396 ACTION FOR DECEIT. for deceit against the seller of any property by reason of any false representations made by such seller upon the sale to him of such property, it is not necessary for him in order to maintain such action to return or offer to return the property so sold and in respect of which such representation was made. It is only necessary to do so when the buyer disaffirms and seeks to rescind the sale as being altogether void by reason of the false representation, and to recover back the consideration he has paid or given for the property : Star Kidney Pad Co. v. Greenwood, 5 O. R. 28. Before the defendant can be charged with deceit in a contract for sale of land, he must be shewn to have contracted as required by the Statute of Frauds, and to have clearly practised or intended the deceit alleged : Irving v. Merigold, 3 U. C. R. 272. In case of fraudulent misrepresentation the Statute of Limitations begins to run from the time of the mis- representation, not from the time of its discovery by the plaintiff, nor from the time that damages accrued : Dickson v. Jarvis, 5 O. S. 694; Smith v. McDonald, 1 R. & G. 245 (N.S.). An executed contract for the sale of an interest in land will not be rescinded for mere innocent misrepresentation. But where by error of both parties, and without fraud or deceit, there has been a complete failure of consideration, a Court of Equity will rescind the contract and compel the vendor to return the purchase money : Cole v. Pope, 29 S. C. R. 291. False and fraudulent representations made by a party to a con- tract after it has been entered into, which has no influence in in- ducing it, cannot be deemed sufficient grounds for setting aside the contract and recovering money paid pursuant thereto : McNaughton v. Hudson, 37 N. S. Reps. 191. Fraud practised by a third party, even when it produces in the mind of one of the contracting parties a mistake as to the nature of the contract, cannot be invoked by that party as a cause of nullity as against the person with whom he contracts. He has no remedy except against the author of the fraud for damages. Therefore, a person who, deceived by the fraudulent practices of a third person, signs a security when he believes that he is signing a contract of insurance, is bound to fulfil the obligations of it: Imperial Life As- surance Co. v. Laliberte, Q. R. 29 S. C. 183. With respect to the liability of A. for the fraud of another person, A. is liable for the fraudulent representations made by his agent B. in the course of carrying on A.'s business fbr his benefit. A person is responsible for a false representation made by him to another on which a third person acts, provided that the repre- sentation was made with the direct intent that it should be acted on by such third person in the manner that occasions the injury, and action fob ni.'i.i i. 397 that the injury be the immediate consequence of the representation: Uarland v. Thompson, 9 u. R. .'ITU. The plaintiff must prove actual damage to himself in order to maintain the action: llyil< v. Buhner, 18 L. T. N. 0. 293. In order that a representation be actionable, it must be fraudu- lently made: White v. Sage, 19 A. It. 135. A party who seeks to set aside a conveyance of land executed in pursuance of a contract of sale for misrepresentation as to a matter of title is bound to establish fraud to the same extent and degree as a plaintiff in an action for deceit : Bell v. MacTclin, 15 S. 0. R. 576. The facts that a bill <>f sale on the face of it absolute is in truth only a mortgage, and that the vendor after the sale is allowed to re- main in possession of the goods, are badges of fraud to be weighed by a jury, aol conclusive proofs of fraud: Hunter v. Oorbett, 7 U. C. B. 75. An action on the case in the nature of a conspiracy does not lie against a person supplanting another in the purchase of goods which had first been contracted for by the latter; and in every action on the case in the nature of a conspiracy the declaration must ex- pressly aver malice on the part of defendant: Davis v. Minor, 2 I . C. R. 464. Fraud is necessary to the existence of an estoppel by conduct. The person must have been deceived. The party to whom the representation is made must have been ignorant of the truth of the matter, and the representation must have been plain and made with the knowledge of the facts, and not a matter of mere inference or opinion, and certainly is essential to all estoppels : McOee v. Kane, 14 < ». R. 12:2* ;. Defence of fraud practised on a fori Court to an action on a foreign judgment: see Woodruff v. McLennan, 14 A. R. 242. If a deed be obtained by fraud a person innocently taking under it for valuable consideration will be protected: Matheto- son v. Henderson, 15 U. C. C. P. 90. Of two innocent parties, one of whom must suffer on account of the fraud or crime of a third, the one most to blame by enabling the wrong to be committed should bear the loss: see Merchants Bank of Canada v. McKay, 12 O. R. 49S; 15 S. C. R. *m2. W. obtained from P. an order for $50 f which was paid) on a statement that he could prosecute him for felony: Held. le on an action brought therefor: Pasco v. Wcrjo, 6 I . C. C. P. 375. To entitle a party to recover damages against one who has been guilty of deceit it is not necessary to shew that the a practising it has benefited thereby; but no action will lie for a \i\\«> representation unless the [person making it knows it to be untrue, and makes it with the intention of inducing the party to whom it is made to act upon it, and he does act upon it and sustains damage in consequence: French v. SJeead, 24 Chy. 179. The non-performan is deceit on the part of the debtor, is ground for an action by the credi- 398 ACTION" FOE FRAUDULENT PREFERENCE. tor for the recovery of all the damages which, whether they might reasonably have been in contemplation at the date of the contract or not, are the direct and immediate consequence of it. The difficulty of determining exactly the extent of the injury suffered, and the absence of evidence upon which to fix the amount of damages, are not reasons for not allowing damages to one whose right thereto is established ; it is for the Court in such a case to fix the damages : Zurif v. Great Northern Telegraph Co., Q. R. 29 S. C. 4G0. ACTION FOR FRAUDULENT PREFERENCE. The present Ontario Statute relating to Assignments and Prefer- ences by Insolvent Persons is chapter 64, Ontario Statutes, 1910, Section 5 is as follows : Gifts, 5. (1) Subject to the provisions of section 6, every gift, convey- transfers, . „ , ,. „ etc., made auce > assignment or transfer, delivery over or payment of goods, byinsoly- chattels or effects, or of bills, bonds, notes or securities, or of defeat or shares, dividends, premiums or bonus in any bank, company or cor- prejudice poration, or of any other property, real or personal, made by a person tr^be void at a t * me w ^ en ne * s m insolvent circumstances, or is unable to pay his debts in full, or knows that he is on the eve of insolvency with intent to defeat, hinder, delay or prejudice his creditors, or any one or more of them, shall as against the creditor or creditors injured, delayed or prejudiced, be null and void. (2) Subject to the provisions of section G, every such gift, con- veyance, assignment or transfer, delivery over or payment made by a person being at the time in insolvent circumstances, or unable to pay his debts in full, or knowing himself to be on the eve of insolvency, to or for a creditor, with the intent to give such creditor an unjust pre- ference over his other creditors, or over any one or more of them, shall as against the creditor or creditors injured, delayed, prejudiced or post- poned, be null and void. (3) Subject to the provisions of section 0, if such a transaction with or for a creditor has the effect of giving that creditor a pre- ference over the other creditors of the debtor, or over any one or more of them, it shall in and with respect to any action or proceed- ing which, within sixty days thereafter, is brought, had or taken to impeach, or set aside such transaction, be presumed prima facie to have been made with the intent mentioned in sub-section 2, and to be an unjust preference within the meaning hereof, whether the same is made voluntarily or under pressure. (4) Subject to the provisions of section 6, if such a trans- action with or for a creditor has the effect of giving that creditor a preference over the other creditors of the debtor, or over any one or more of them, it shall, if the debtor within sixty days after the trans- FRAUDULENT PBEFERENCE ACT. [\>j9 action makes an assignment for the benefit of his creditors, be pre- sumed prima facie to have been made with the intent mentioned in bud- Bection 2, ami lo be an unjust preference within the meaning hereof, whether the same be made voluntarily or uni are. (;*>) The word "creditor," in the fifth and sixth lines of BUD- "Creditor" section 1', in the second and third lines of BUb-section 3, and in the certain purp second and third lines of 8Ub-secti0D 1. shall include any surety, and include the indorser of any promissory note or bill of exchange who would KUret >' ai|,i endorser. upou payment by him of the debt, promissory note or bill of exchange, in respect of which such suretyship was entered into, or such endorse- ment was given, become a creditor of the person giving the preference within the meaning of these sub-sections. G. (1) Nothing in the next preceding section shall apply to an Assign- assignment made to the sheriff of the county or district in which the men t> for , • , benefit of debtor resides or carries on business, or with the consent of a majority credit of his creditors having claims of $100 and upwards, computed according a " fl lj0na to the provisions of section 24, to another assignee resident within On- gt c< pro .' tario, for the purpose of paying rateably and proportionately and with- tected. out preference or priority, all the creditors of the debtor their just debts ; nor to any bona fide sale or payment made in the ordinary course of trade or calling to an innocent purchaser or person ; nor to any payment of money to a creditor, nor to any bona fide conveyance, assignment, transfer, or delivery over of any goods or property of any kind, which is made in consideration of a present actual bona fide payment in money or by way of security for a present actual bona fide advance of money, or which is made in consideration of :i in- actual bona fide sale or delivery of goods or other property where the money paid or the goods or other property sold or delivered hoar a fair and reasonable relative value to the consideration therefor. (2) In the case of a valid sale of goods, or other property, and Transfer payment or transfer of the consideration or part thereof bv the pur- ''' cr * (i >tor i t ufconsid- cnaser to a creditor of the vendor, under circumstances which would eration for render void such a payment or transfer by the debtor personally and s;i1 *.' m " directly, the payment or transfer, even though valid as respects the purchaser, shall be void as respects the creditor to whom the same is made. (3) Every assignment for the general benefit of creditors, which General is not void under section 5, but is not made to the sheriff, nor to any other person with the prescribed consent of creditors, shall be void as m a '. against a subsequent assignment which is in conformity with this ancs with Act. and shall be subject in other respects to the provisions thereof. v ( !j[] a "ie' n until and unless a subsequent assignment is executed in accordance therewith. (4) Where a payment has been made, which is void und r this Security Act, and any valuable security was given up in consideration of the given up 400 ACTION FOR FRAUDULENT PREFERENCE. upon void payment, the creditor shall oe entitled to have the security restored, payment 0r j ts va ] ue ma de good to him before, or as a condition of, the return to be returned, of the payment. ( 5 I Nothing herein shall 10 Edw. (a) Affect The Wages Act, or prevent a debtor providing for payment of wages due by him in accordance with the provisions of that Act. protected. Payment (b) Affect any payment of money to a creditor, where such ?_JT a £ e8 j creditor by reason or on account of such payment, has lost or been deprived of, or has in good faith given up, any valid security which he held for the payment of the debt so paid, unless the security is restored, or its value made good to the creditor. Exchange ( c ) Apply to the substitution in good faith of one security, for of securi- another security, for the same debt so far as the debtor's estate is not thereby lessoned in value to the other creditors, or Certain (d) Invalidate a security given to a creditor for a pre-existing securities d CD t where by reason or on account of the giving of the security, an advance in money is made to the debtor by the creditor, in the bona fide belief that the advance will enable the debtor to continue his trade or business, and to pay his debts in full : Where it is alleged that a transaction offends against the Assign- ment Act, R. S. N. S. c. 145, the fact of insolvency must in all cases be proved by the attacking party, but what has to be shewn is not a state of insolvency in the strict legal or commercial acceptation of the term, but the debtor's inability to pay his way, and meet his creditors: Fawcett v. Faulkner, 40 N. S. R. 398. See also Hart v. Allen, 40 N. S. R. 352. Where a conveyance by a married woman of alleged separate property is attacked as a device to defraud creditors, the attacking party is not entitled to succeed, where there has been valuable con- sideration for the security given, by shewing that ultimately the business was judicially declared to be a device to defraud creditors, and also that the party obtaining the security was a relative and had some knowledge of the business in question, and knew that the husband was employed in it. In order to set aside such conveyance it must be clearly shewn that the grantee had knowledge of the " device " at the time the security was given : Hartlen v. Adams, 40 N. S. R. 96. In an action for conversion, the plaintiff claimed title under a ered bill of sale which the jury found was made without con- sideration, and in fraud of creditors ; the defendant justified the taking ACTION I'M; FRAUDULENT PREFER] 401 under an unregistered lien nolo given subsequent to the bill of sale: — Held, that the verdict was properly entered for the defendant : I'oitrat v. Pelletier, 38 X. B. K. 83. Action to set aside marriage settlement. — Bulmcr f Hunter, L. R. S Bq. 46, distinguished: FalUs •• Wilton, 15 O. L. It. 55. If a debtor makes a payment, believing in good faith and ou reasonable grounds that be is. although in fact he is not, legally bound to make it, such payment is not a fraudulent preference. In rt Vautin (1900), 7 -Alan. Bank 291, followed. See I 1908) 13 O. W. It. 272, where the facts of this case were twice before the Courts. McDonald v. Curran (1909), 14 O. W. N. 121. Where a voluntary settlement was made by husband to wife of half his available assets just before he entered into a speculation of considerable magnitude in connection with supposed oil land, it was held that the property so held by the wife was available for credi- tors. Mackuy v. Douglas (1872), L. R. 14 Eq. 10G, and Ex p. Russell (1882), L. R. 19 Ch. D. 588, followed. Alexandra Oil Co. v. Cook (1909), 13 O. W. R. 405: attirmed, 14 O. W. R. 604. 1 O. W. N. 22. An English bankruptcy carries all the real and personal property of the bankrupt in any part of the British dominions: the theory of the English Bankrupt Acts being that when once a forum had been established for the winding-up of an estate it is expedient that the whole property of the bankrupt should be brought there in order that it may be ratably divided amongst all his creditors: and the assets of the bankrupt having been thus taken away from him, credi- tors will not be allowed to harass hint with unnecessary litigation. The defendants in these actions carried on business in England and Canada, and had creditors in both countries. The defendants became subject to the English bankruptcy laws, and a trustee in bankruptcy was appointed, to whom the plaintiffs presented their claim against the estate of the defendants, whirl) claim included the amount claimed in these actions, which were begun in Ontario. The English Court made an order on the application of the trustee restraining the plain- tiffs from further prosecuting these actions; and upon the application of ihe defendants an order was made in chambers here staying pro- ceedings in them:— Held, affirming 13 P. R. 86, specially referring to Howell v. Dominion of <'aiul assigns his furniture for valuable consideration to his wifc*s father. The father subsequently gave LI verbally to the wife. The furniture had not been moved from the husband's house: Held, thai manual delivery was not necessary to complete the verbal gift to the wife; so that possession was given and taken, and that ttie gift was complete and good against the husband's creditors: Kilpin v . Rathley (1892), 1 Q. B. 582. The plaintiff with the intention of parting with the possession and property in certain flour made an absolute sale of same, on apparently short terms of credit, to defendant, who withheld from plaintiff his intention to pay for the flour by setting up a claim he had acquired against the plaintiff: Held, that this did not constitute a fraud on the defendant's part so as to entitle the plaintiff to disaffirm the contract and replevy the Hour: Raker v. Fisher, 19 O. R. 050. A chattel mortgage given as security for a bona fide debt cannot be avoided under R. S. O. 1877, c. 118, by simply shewing that the debtor was insolvent and intended to give the mortgagee a preference, but there must be knowledge on the part of the creditor taking the mortgage so as to constitute a concurrence of intent on the part of the debtor and creditor, and the amendment made by 47 Vict. c. 10, B. 3 (O. ), does not affect the matter: Burns v. Mr Kay. 10 O. R. 107. followed. In this case there was no knowledge on the part of the mortgagee of the debtor's insolvency, and it also appeared that the mortgage was given in pursuance of a previous promise to give secu- rity for the debt. The mortgage was therefore upheld : Quwrc, whether where the statute may be defeated by showing an antecedent promise to give security, it must be such as the promise indicated: McRobcru v. Steinoff, 11 O. R. 369. The meaning of II. S. O. 1877, c. 118, as amended by 48 Vict. c. 26. s. 2 (O.), is that a conveyance of property which has the effect of defeating, delaying or prejudicing his creditors, or of giving a preference, is utterly void when made by a person at a time when he is in insolvent circumstances, or unable to pay his debts in full, or knows that he is on the eve of insolvency: Rac v. McDonald, 13 O. R. 352. Pressure will not validate a security unless it be bona fide pressure to secure a debt, and without a view to obtaining a prefer- ence over the other creditors: I'oucll v. ('alder, s (). R. 505. The doctrine of pressure may still be invoked in order to uphold a transaction impeached as a preference when it is not attacked with- in sixty days, or when an assignment for the benefit of creditors is not made within that time: lUattic v. Wni'i'r, L'4 A. R. 72. 404 ACTION FOR FRAUDULENT PREFERENCE. A chattel mortgage given in pursuance of a previous agreement therefor, to cover an antecedent debt and advance made at the time of the agreement, both the mortgagor and the mortgagee believing the former to be solvent when the mortgage was actually made, is im- peached within the sixty days provided for by s. 2, s.-s. (A) of 54 Vict. c. 20 (O.), amending R. S. O. 1887, c. 124: Held, that the mortgage was valid : Lawson v. McOeoch, 22 O. R. 474, 20 A. R. 464. To avoid a transfer as a fraudulent preference under R. S. O. 1887, c. 124, s. 2, the person to whom it is made must be a creditor in respect of the transaction al tacked, and a security for an insol- vent who has not paid the debt for which he is security, is not a creditor within the meaning of the Act : Hope v. Grant, 20 O. R. 623. Where a debtor executes a fraudulent conveyance, in respect of which relief in equity may have to be sought, the proper course for the creditor is, not to have the property sold by the sheriff at a great undervalue, and then to come into equity to have the sale confirmed ; but to come into equity first to have the conveyance set aside, and the property then sold : Kerr v. Bain, 11 Chy. 423. A creditor cannot take the benefit of the consideration for a con- veyance, and at the same time attack the conveyance as fraudulent, and therefore, where creditors seized shares in a company allotted to their debtor in consideration of the conveyance by him of his assets to the company, it was held that they could not attack the conveyance : Wood v. Reesor, 22 A. R. 57, applied: Rielle v. Reid, 26 A. R. 54. Where a creditor simply seeks to have a deed made to his debtor declared fraudulent and void, it is not necessary to allege that the creditor has carried his claim to judgment. In such a case, however, the creditor must sue on behalf of himself and all other creditors : Jjongeway v. Mitchell, 17 Chy. 190. See also Colver v. Swayze, 26 Chy. 395. An insolvent person executed to his son a mortgage for $1,000, of which $600 was a sum fraudulently pretended to be due to the mort- gagor's wife: Held, that, even if the remaining sum was really due to the mortgagee, his concurrence in the fraud as to the $600, rendered the mortgage void in toto : Totten v. Douglas, 15 Chy. 126 ; 18 Chy. 341. Where moneys arising from a feigned sale of goods fraudulent and void as against creditors, were at the time of the commencement of the action by a creditor to set thfe samu aside, in the hands of the nominal purchaser, one of the defendants and a party to the transac- tion, he was ordered to pay the moneys into Court for distribution ng the creditors of the insolvent, and in default of payment by him, it was ordered that execution should issue for that amount : Masuret v. Stewart, 22 O. R. 290. ACTION FOR FEAL 405 The fact that the grantors iu a deed were to the knowledge of the grantee insolvent at the time of making the deed, is in itself insuffi- cient to cause the deed to be se< aside as a fraudulent preference un- der It. 8. O. 1887, c. 124, following tfolsons Bank \. Halter, is S. C. K. 88; and where valuable consideration has been given, dear evi- dence of actual intent to defraud the creditor of the grantor is neces- sary to have the deed declared void under the statute of Eliz. c. 5 : J lit/arson v. Partington. 18 A. It. 635. An assignee for the benefit of creditors takes only such title as his assignor had to the property: Robinson v. Cook, (5 O. II. r»90. Held, following Macdonald v. McOall, 12 A. R. 593, that a creditor to maintain an action to set aside a mortgage as a fraudu- lent preference ne^<\ not be a judgment creditor: liae v. McDonald, 13 O. R. 352. Proper form of judgment in an action establishing a right to rank on tne estate of an insolvent explained: Orant v. West, 2 A. R. 533. A creditor is confined in an action to establish his contested claim to the quantum, and item* set out in the affidavit of claim filed with the assignee: Grant v. ^Yest, 23 A. R. 533. Where a bona fide transaction takes place between a failing debtor and a favoured creditor it is the duty of the creditor to em- ploy all practicable means to free the transaction from undeserved suspicion and afford to the other creditors reasonable satisfaction as to the moral character of the transaction: and if this duty is neg- lected the favoured creditor may have to bear his own costs of after- wards establishing the transaction if impeached in this Court by the other creditors whom it disappointed: Hcalcy v. Daniels, 14 Chy. 633. The provision of s 20 of the Assignments Act, R. S. O. 1897, c. 147, thai "every creditor in his proof of claim shall state whether he holds any security for his claim, or any part thereof, and if such security is on the estate of the debtor, or on the estate of a third party for whom such debtor is only secondarily liable, he shall put a specified value thereon." means that if. as between the debtor and the third party, the latter is primarily liable, and the debtor only secondarily liable, the creditor must put a specified value upon his security. The substance, not the form of the transaction, is to be looked at to ascertain whether the third party is primarily liable, and if it be found that he is the debtor is then only secondarily liable: dlnnvillr v. Xtrachan, 29 O. R. 373. The meaninir of K. 8. O. 1887, c. 124, s. 3, s.-s. 2, is that an assignment executed without the consent of the requisite number of creditors shall have the same effect as if it had been executed with such consent until and unless it be superseded by an assignment executed with such consent, and the words which occur 406 ACTION FOR FRAUDULENT PREFERENCE. through the Act, "an assignment for the general benefit of creditors under this Act," are to be governed by this construction : Held, therefore, that a sheriff who had seized goods of insolvent debtors under execution was not justified in refusing to give them up to the debtors' assignee who was not a sheriff, and the assignment to whom had not been assented to by the number of creditors required, by the R. S. O. 1887, c. 124. s. 3, but held. also, that as the goods were covered by a chattel mortgage the sheriff could set up the rights of the mortgagee in answer to an action by the assignee to restrain the sale of the goods under the execution. The assignee having failed in the action because the mortgagee's rights disentitled him to succeed, and the sheriff having contested the assignee's rights on the other ground which was declared to be untenable, no costs were given to either party : Anderson v. Glass, 16 O. R. 592. An assignment under R. S. O. 1887, c. 124, for the general benefit of creditors made by the members of a trading partnership in the words mentioned in s. 4, vests in the assignee all the proper- ties of each of the partners several as well as joint : Ball v. Tenant, 25 O. R. 50. 21 A. R. 602. An assignment by way of security of the profit expected to be made out of a contract to do work does not come within the Act respecting Assignments and Preferences, and cannot be set aside un- der that Act: Blakelcy v. Gould, 24 A. R. 153, 23 S. C. R. 687. Power to Employ Assignor. — By a deed of assignment for *.he benefit of creditors the trust was declared to be " to sell and dispose of such portions of the said estate as shall be readily saleable either for cash or credit, or under the power hereinafter contained to carry on the said business . . . and to stand possessed of the said moneys, etc., and all profits and increase arising therefrom in trust to pay," etc., and a subsequent part of the deed provided that the assignee " shall have power to employ the said party of the first part (the insolvent) or any other porson in winding up the affairs of the said trust estate in collecting and getting in his estate and effects hereby assigned, and in carrying on his said trade " : Held, that the provisions above set forth did not invalidate the deed : Jennings v. Moss, 10 A. R. 606. Deputy Resident out of Ontario. — Where an assignment for the benefit of creditors is made by a resident of Ontario to an assignee residing in Ontario, but all the work in connection with the assign- ment is done by the assignee's partner residing out of the Province, the assignee cannot recover as against the assignor or retain out of his estate any commission or expenses: Tennant v. MacEioan, 24 A. R. 132. action ioi: ! kai i>r;.i:\T run 407 Au assignee for the benefil of creditors may be ordered to pay the costs of the action personalis as any other unsuc ssful litigant may be: Macdonald v. Balfour, 20 A. R. 404. Remuneration and Disbursements— Indemnity. — An for the benefit of creditors under the Assignment Act cannot charge creditors personally with the costs of an action broughl by him on behalf of the insolvent estate unless upon a direel or implied promise of indemnity, but must look to the assets of ih> ad so too with regard to his disbursements in winding up the estate: Johnson v. Dulmoge, 30 O. H A purchase by the assignee for the benefit of creditors of the assets of the estate made by him at the request of the inspectors of tate after futile efforts to sell at auction and by private tender, and after a circular letter bad been sent by the inspector to each creditor statiug that the sale would be made unless objection were taken, was set aside, there being evidence that at the time of the purchase the assignee knew of and was negotiating with a possible purchaser to whom he afterwards resold at a large profit, and had not disclosed this information to the inspectors : Morrison v. Watts, 1!) A. K. G22. An assignment for the benefit of creditors made to a sheriff under R. S. O. 1S87, c. 124, is made to him as a public functionary, and on his death the care and administration of the estate assigned devolves upon his deputy, and thereafter upon his successor in office. It is not competent to the sheriff to disclaim or decline to act as such assignee: Brown v. Qrove, 18 O. R. 311. A sheriff selling lands as assignee for creditors under R. S. O. 1887, c. 124, cannol as selling under an execution, sign a memoran- dum which will bind a purchaser under the Statute of Frauds, for not as in the latter case agent for both vendor and purchaser: Mclntyre v. Fnubert, 26 O. R. 427. The duties of an assignee under such an instrument as the one in question in this case are analogous to those of executors and trustees administering estates, and the Court will consider that a year is the proper time within which the sale of the property assigned is to be made where the assignment leaves the time and manner of sucn sale in the discretion of the assignee. If the sale be not made within a year the onus will be cast upon the assignee of his hona fides in seeking further delay: Ontario J'mik v. Lamont, 6 O. R. 147. Assignments for the general benefit of creditors must be registered unless ther< is a sufficient change of Uarscallen v. Hoodie, 15 D. C. R. 92; Maulson v. Joseph, S. C. P. b r . : Hetoard V. Mitchell, 10 D. C. R. 535, 11 I . <'. tt. 625; Harris v. Commercial Bank. 16 U. C. R 437. 408 ACTION FOR FRAUDULENT PREFERENCE. In consideration whether a sufficient change of possession has taken place to satisfy the statute, regard must be had to the nature and purposes of the assignment, and the circumstances of the case, and when made by a merchant for the benefit of his creditors, it is not to be expected that the assignee should remove the goods or take exclusive possession, as in the case of an ordinary sale. The assignor may continue upon the premises, and assist in disposing of the goods, without vitiating the assignment in law, but it is a fact for the jury as evidence to shew that the transfer was colourable : Held, that here the jury was warranted in finding a sufficient change: Maulson v. Commercial Bank, 17 T T . C. R. 30. A debtor conveys his lands to a trustee for his creditors, and a schedule annexed purported to contain the whole thereof, but it was afterwards discovered that either designedly or by mistake some of the lands had been omitted : Held, that a bill would lie to correct tne schedule on the ground of fraud or mistake : Gillespie V. Grover, 3 Chy. 558. A creditor under a composition deed, either under the Insolvent Act or otherwise, cannot give a general release and subscribe for a particular sum, as being apparently his whole claim, and afterwards advance other demands as not included in this discharge, for this would L*> a fraud on the other creditors: Fowler v. Perrin, 16 U. C. C. P. 358. The rule in respect of compositions between a debtor and his creditors is, that a creditor cannot appear to concur in the composi- tion and sign the deed, and at the same time stipulate for a separate benefit to himself outside thereof. However, where upon an agree- ment between a debtor and his creditors for an extension of time for payment of his liabilities, the deed of agreement stated that it should not " affect any mortgage hypothec, lien, or collateral security held by any such creditor as security for any of said debts " : Held, that a creditor whose claim was fully secured by a mortgage on real estate and other collaterals, was not bound to communicate that fact to the other creditors at the time of, or before, executing the deed of extension : Henderson v. Macdonald, 20 Chy. 334. The fraud must be some concealment or deception practised by the plaintiff with respect to the very transaction in question; the illegality of the transaction from other reasons is not sufficient: Green V. Gosdcn, 3 M. & Gr. <±-i6. Fraud means moral fraud, and not merely an innocent misrepresentation : Panama Mail Co. v. Kennedy, L. P. 2 Q. B. 580: Moms v. Hayworth, 10 M. & W. 147; Burrows v. Leavens, 29 Chy. 479. A creditor who assents to and signs the resolution, but before doing so makes a secret bargain with the debtor for payment of his claim in full, is not debarred from suing the debtor for the original 400 indebtedness upon default in payment o ion according to the terms of the resolution, the debt not bein used or otherwise discharged: Weese v. Ban field, 22 a. Et. 188. Costs with held from an executor because he had misled plaintiff: Tcnute v Walsh, 24 i). It. 309. Fraud or want of consideration for a deed can only be set up by thfi grantor or those claiming under him: Hickman V. North British Insurance Co., Li Han. 235 (N.B.). As to pressure, the question to be determined is whether the debtor was actuated solely by a desire to prefer in making the assignment, or whether the request to do so was the moving cause. Decision of Parke, B., in Van Castell v. Booker, 2 Ex 691, followed : Colquhoun v. Seagram, 11 M. L. It. 339 (Man.). When the consideration expressed on the face of an assignment is larger than the actual debt due by the debtor to the assignee, it is not necessarily fraudulent. The declared intention to exclude any creditor or class of creditors will not render such an assignment invalid. The assignor continuing in possession of the goods assigned is not a conclusive badge of fraud. Fraud or no fraud is a question that belongs entirely to the jury: Tarrant v. Sawyer, 1 Thom. (1st Ed.) 20: (2nd Ed.) 46 vN.S.). A voluntary conveyance of land is void under 13 Eliz. c. 5 (Imp.), as tending to hinder and delay credi- tors, though the vendor was solvent when it was made, if it results in denuding him of all his property and so rendering him insolvent thereafter. A mortgagee whose security is admittedly insufficient may bring an action to sot aside such conveyance, and that without first realizing his security. Judgment appealed from (7 B. C. Rep. 189) reversed, Gwynne, J„ dissenting : Sun Life 1*8. Co. v. Elliott, 31 S. C. R. 91. Held, thai the preference provided against in the statute is a voluntary preference, and does not apply to a chattel mortgage given under pressure from a creditor, and a mere demand without threatening legal proceedings is a sufficient pressure. Molsons Bank v. Halter 18 S. C. R. v *. and Stephens v. He irthur, 19 S. C. R. 446. followed: Fisher v. Brock, 8 M. L. R. 137 (Man.). Where a creditor takes the beneht of a conveyance alleged to be fraudulent, and on tnat ground fails in his action attacking it. the acquiring by him of a small claim and the bringing of another action upon an abuse of the process of the Court. Judgment below. 27 O. R. 423, ed: Young \. Ward, 24 A. Et. 147. A creditor cannot take the benefit of the consideration for a conveyance and at the same time attack the conveyance as fraudulent, and therefore where creditors seized shares in a company allotted to their debtor, in consideration of the conveyance by him of his assets to the company, it was held that they could not attack the conveyance. ^Yood v. Reesor, 22 A. R. • r >7. applied. Judgmenl below, 28 O. R. 497, reversed : Riclle v. Reid, 26 A. R. 54. The protection of 13 Fliz. c. 5 is not confined to credi- tors only, but extends to creditors and others who have lawful 410 CON FOB FRAUDULENT PREFERS actions ; and in this case where before !he impeached conveyance was made all the moneys secured by a mortgage, subject to which the plaintiff had conveyed the mortgaged lands to the fraudulent grantor, had fallen due, the plaintiff had at the time of the making of the conveyance a lawful action upon the implied contract of his vendee to pay the moneys secured by the mortgage, and this implied contract was sufficiently proved against the fraudulent grantee by proof of the mortgage and of the conveyance by the plaintiff to the fraudulent grantor subject to the mortgage: Oliver v. McLaughlin, 24 O. R. 41. Where a creditor brings his action to set aside as fraudulent a con- veyance made by his debtor of his property without first obtaining judgment and execution, he must sue on behalf of all the creditors of the debtor, and in such action his relief will be confined to setting aside the conveyance, leaving him to resort to some independent pro- ceeding to obtain execution against the property comprised in such conveyance: Oliver v. McLaughlin, 24 O. R. 41. A subsequent credi- tor cannot uphold an action to set aside a voluntary conveyance under 13 Eliz. r. 5, merely on the ground thai a debt of prior date to the conveyance is still unpaid if such prior debt has become barred bj lapse of tic.e : Struthers v. Glennie, 14 O. R. 726. The Court will in a proper case order a deed to be cancelled; or if registered a con- veyance of the estate to the person properly entitled ; and that al- though his title may be sufficient as a defence to any action at law : Markin v. Habidon, 6 Chy. 405; 7 Chy. 243. A conveyance may be fraudulent and void as against creditors, although no debt may be in existence at the time, if made in contemplation of being indebted : Hank of British 'North America v. Rattenburg, 7 Chy. 383. 13 Eliz. c. r>, is directed against fraudulent alienations of property, whereby the debtor diminishes the estate, and does not touch the case of his neglecting or refusing to enrich himself: Bain v. Malcolm, 13 O. R. 444. A debtor sold his property reserving by parol certain future rents to pay a creditor which were sufficient for the purpose ; the object was to delay the creditor and to compel him to wait for payment until these rents should accrue and all parties combined for that object. The sale was held wholly void against the creditor, a transaction to delay a creditor being within 13 Eliz. as much as a transaction to defeat him altogether: Murtha v. McKenna, 14 Chy. 59. Where a deed is set aside as fraudulent against creditors, a purchaser from the grantee in the impeached deed will not be allowed for im- provements made by him upon the property: Scott v. Hunter. 14 Chy. 376. Adequacy of consideration is not necessary to maintain a trans- action under 13 Eliz. ; though the inadequacy may afford some evidence of guilty knowledge : Carradice v. Ourrie, 19 Chy. 108. Semble, that since Wood v. Dixie, 7 Q. B. 829, a bona fide transfer of property made by a debtor to a third party cannot be considered invalid merely because the object of the sale in the mind of both ACTION i OB l K i\ IH/I.KVI 411 parties was to defeat an , : 11 kite v. Stevens, 7 C. C. R. 340. To maintain a Bale impeached bj it is not sufficient to prove thai the ti. was really intended to pass tin." property; for as 1 ,-i i • 1 down in Gott walls v. Mulholland, '.) E. & A. 194, "although the Bale may have been bona fide with intent to pass i 1 y, yet if made with intent by vendor and purchaser to defeat and delay creditors, it would be void ": Merchants Bank of ('anada v. Vlarke, 18 Chy. 594. Fraudulent intention is a material element in an action to set asid" a conveyance as beinu voluntary and fraudulent against creditors, and where it does not exist the action cannot succeed. The fact that the result of a conveyance is to defeat creditors is not necessarily proof that the intention of the grantor in making it was fraudulent: Car v. Corfield, 20 O. R. 218. li one purpose of a sale and conveyance is to defeat a creditor, the sale is in equity void as to him: Scott v. Burnham, 19 Chy. 234. A transfer of property to a creditor for valuable consideration, even with intent to prevent its being seized under execution at the suit of another creditor, and to delay the latter in his remedies or defeat them altogether, is not void under 13 Eliz. c. 5, if the transfer :s made to secure an existing debt, and the transferee does not either directly or indirectly make himself an instrument for the purpose of aently benefiting the transferror: Muleahey v. Archibald, 28 S. C. R. 523. In an action to have a deed of assignment for the benefit of creditors set aside by creditors of the assignor on the ground that it is void under the Statute of Elizabeth, neither moneys paid to preferred creditors nor trust property disposed of in good faith by the assignor or persons claiming under him can be recovered, nor can persons holding under the deed bo held personally liable for moneys or property so received by them : Cox v. Worrall (2t> X. S. Rep. 366) questioned. (See 21 Can. S. C. R. 321) : Taylor v. Cummings, 27 S. C. R. 589. Voluntary conveyances are void against existing debts, which are thereby defeated or delayed whether the conveyances were fraudulent or not: Irwin v. Freeman, 13 Chy. 465. Where a conveyance is voluntary it is only necessary to shew fraudulent in- tent on ttie part of the grantor: Oliver v. McLaughlin, 24 O. R. 41. A judgment creditor is not a purchaser for value within 27 Eliz. c. 4: GiUespie v. ~\'an Egmondt. 6 Thy. 533. A voluntary or covii conveyance under 27 Eliz. c. 4. is voidable only, and is good and valid until avoided: Harper v. Culbert, 5 O. R. 152. Since the Judi- cature Act, in an action by a simple creditor claiming merely to set aside a nee as fraudulent against creditors, the debtor and grantor is a necessary party as well as the errantee : Gibbons v. Darvill, 12 P. R. 478. See Beotty v. Wenger, 24 A. R. 72. V judgment recovered ai law by the fraudulent acquiescence of the defendant in the action will be inquired into in the Court of Chancery at the instance ><( a subsequenl judgment creditor; although 412 ACTION" FOR FRAUDULENT PREFERENCE. the rule at law is that only the party to the action can move against the judgment there: McDonald v. Boice, 12 Chy. 48. A judgment will be set aside on the motion of a subsequent; judgment creditor only when it has been procured by fraud, and the process of the Court thus abused. If a nullity upon any other ground a stranger can- not be prejudiced by it ; and if irregular only he has no right to complain : Balfour v. Ellison, 3 P. R. 30, 8 L. J. 330. A judgment fraudulent against creditors as to part of the sum included therein is void as against them in toto : Commercial Bank v. Wilson, 3 E. & A. 257, 14 Chy. 473. See t ampbell v. Patterson, Mader v. McKinnon, 21 S. C. It. G45. A contract induced by fraud is not void but void- able merely at the option of the party affected or prejudiced thereby ; and when the party affected adopts the contract induced by the fraud, the discovery of a new incident of the fraud does not revive the right to repudiate. In this case there being no finding by the jury that the defendant had knowledge of and had waived the fraud, a new trial was directed : Walton v. Simpson, 6 O. R. 213. Where a party desires to impeach an instrument on the ground of fraud and extortion, the more convenient course is to institute proceeding in order to annul it, as it is rarely that effect can be given to a defence on such ground in a suit to enforce it : Kain v. Mcintosh, 10 Chy. 119. Where a trader who was in insolvent circumstances had given a chattel mortgage on his stock-in-trade to secure a debt, and shortly after executed an assignment in trust for the benefit of his creditors : Held, affirming the judgment appealed from (12 Ont. App. R. 593) that the mortgage was void under the statute, and that certain simple contract creditors of such trader could maintain a suit on behalf of themselves and all other creditors except the mortgagees, to set aside the mortgage, without including the mortgagees as plaintiffs and without attacking the assignment in trust: McCall v. McDonald, 12 S. C. R. 247. A mortgage given by a debtor who knows that he is unable to pay all his debts in full, is not void as a preference to the mortgagee over other creditors, if given as a result of pressure and of a bona fide debt, and if the mortgagee is not aware of the debtor bein? in insolvent circumstances: M Olsons Bank v. Halter (18 Can. S. U. R. 88), and Stephens v. McArthur (19 S. C. R. 446), followed. Judgment appealed from (18 Ont. App. R. 159) affirmed: (Hbbons v. McDonald, 20 8. C. R. 587. Held, overruling Mader V. McKinnon (18 Ont. App. R. 646, sub nom. McKinnon v. Roche), in so far as Commercial Bank v. Wilson was followed, that that case was decided under the Statute of Eliz., and is not now law under the Ontario Statute, and a mortgage may be set aside as to part and maintained as to the remainder, but affirming the judgment of the Court of Appeal on the ground that the evidence shewed the whole of the consideration for M.'s mortgage to be illegal and had : Camp- bell V. Patterson; Mader v. McKinnon, Cass. Dig. (2nd ed.) 122. ACTION FOR 413 Though «n assignment contains preferences in favour of certain creditors, yet if ii inclui I to such preferences, a trust in favour of all the assignor's creditors, it is "an assignment for the iefit of creditors" under section 1<> of the Nova Scotia Bills ' (R. S. W S. c. 92), and docs not require an affi- davit of loiKi fides. Durkee v. Flint (19 N. S. Rep. 487), approved and followed. Archibald v. Huhlvy (18 Can. S. ('. R. 11*;), dis- tinguished: Kirk v. Chiaholm, L'C S. C. R. 111. A creditor is not de- barred from participating in the benefit of an assignment in trust for the general benefit of creditors by an unsuccessful attempt to have such deed set aside as defective : Gardner v. Klocpfcr, 15 S. C. H. 390; Grant v. Cameron, IS S. C. R. 716. ACTION FOR DEFAMATION. The Ontario Act relating to libel and slander is Ont. Stats. 1910, c. 40.* The Dominion Act respecting libel is R. S. C. c. 146. Criminal <' the plaintiff; it ia suffii if they render him contemptible or ridiculous. Every one has a right to comment on matters <>f public interest and general concern, provided he does so fairly and with an honest purpose. It is often said that such criticism is privileged. Thin does not mean thai the words are "privileged by reason of the occasion " in the strict Legal sense of the term. The defence in really that the words are not defamatory — thai criticism is no libel. What are matters of public interest? The public conduct of every puolic man. All political. Legal, and ecclesiastical matters, therefore, are matters of public concern. With regard to construction the question is, How would ordinary men, previously unacquainted with Ihe matter, fairly understand the words? This is clearly a question for the jury, and therefore it is ex- pressly provided (32 Geo. III., c. 69, Fox's Libel Act) that in all criminal actions for libel the jury are to decide the question of libel or no libel, subject to the direction of the Judge. In civil proceedings for libel the practice is the same, save that here, if the Judge thinks that the words cannot possibly bear a defamatory meaning, he may enter a non-suit. If the Judge considers that the words are reason- ably susceptible of a defamatory meaning, as well as an innocent one, then it will be a question for the jury. The Judge should not lay down as a matter of law that the publication complained of is or is not a libel. The proper course is for the Judge to define what is a libel in point of law and leave it to the jury to say whether the publication in question falls within that definition. So, too, in slander the Judge usually decides whether the words are or are not actionable per se, and whether the special damage assigned is or is not too remote. If the defendant's words cannot reasonably bear the meaning attached to them by the innuendo, and the Judge thinks the words without thai meaning are not actionable. he will stop the case; but where there is any reasonable doubt as to the true construction of the words, the Judge leaves the question to the jury. The innuendo is the statement by the plaintiff of the construction ue puts upon the woras himself, and which he endeavours to induce the jury to adopt at the trial. If, in their ordinary English meaning, the words used would be intelligible, facts must be given in evidence to show that they may have been used in a particular sense on this particular occasion. After that has been done a bystander may be asked. " What did you understand by the expression used?" — not before. If the words are local, or slang, or cant terms, etc., evidence is admissible to explain 416 ACTION FOE DEFAMATION. their meaning (provided such meaning has been properly alleged in the statement of claim) : Daines v. Hartley, 3 Exch. 200; Huber v. Crookall, 10 O. R. 475. Where the meaning of the defendant's words is clear or has been ascertained, the next question is, Was the imputation sufficiently definite to injure the plaintiff's reputation? Is it clear that it was the plaintiff to whom he referred? Unless these questions can be answered in the affirmative no action lies. Publication is the communication of the detamatory words to some third person. It is essential to the plaintiff's case that the de- fendant's words should be expressed. It is no publication when the words are only communicated to the person defamed ; for that can- not injure his reputation. There must be a communication by the defendant to some third person other than the plaintiff. The plain- tiif must prove a publication by the defendant in fact. That the third person had the opportunity of reading the libel is not sufficient, if the jury are satisfied that he did not in fact avail himself thereof. Though composing a libel without publishing it is not actionable, merely publishing it without composing it is actionable. So again, every sale or delivery of a written or printed copy of a libel is a fresh publication, and every person who sells or gives away a written or printed copy of a libel may be made liable, unless he can satisfy the jury that he was ignorant of the contents. There is a great difference between libel and slander. The actual publisher of a libel may be an innocent messenger ; whereas in every case of a republication of a slander the publisher acts consciously and voluntarily — the repetition is his own act. Therefore if A. slan- ders B., A. is only liable for the damages which result directly from his own act. The truth of any defamatory words is, if pleaded, a complete de- fence in any action of libel or slander (although alone it is not a defence in a criminal trial). The onus of proving that the wo-ds are true lies on the defendant. A justification must always be specially pleaded. In criminal matters the defendant must also prove that it was for the public benefit that the matters charged should be published. Before 1843 (6 and 7 Vict., c. 96) the truth of the libel was no defence to the indictment. The maxim prevailed, " The greater the truth the greater the libel." * It is a defence to an action for libel or slander to prove that the circumstances under which the defamatory words were written or * In Rome the truth of the libel was undoubtedly a defence both to criminal and civil proceedings. (See Horace's Satires, Bk. II., 1, 83, 5.) ION FOR DEI •■-•• 417 spoken afforded an excuse for their employment. And tnis is bo even though the words be proved or admitted to be false. The occa- sion is said to be privileged. The utterance is excused f<>r the sake of common convenience and for the welfare of society. There are two kinds of privileged occasions — 1. Absolutely privileged, such as words spoken In Parliament. 2. Qualified. The course of procedure at the trial is as follows : The plaintiff is always entitled to begin, even where the onus of proof lies on the defendant. The plaintiff must prove, where neces- sary, his special character. lie must next prove that the defendant published the libel or spoke the slanderous words to some third person. The libel itself must be produced at the trial. The jury are en- titled in all cases to see it. The defendant is entitled to have the whole of it read. Whether a communication is or is not privileged is a question for tue Judge alone. If there is any doubt as to the circumstances the jury finds what they were, and then, on their findings, the Judge decides whether the occasion was privileged or not If the occasion was not privileged, and the words are defamatory and false, the Judge will direct a verdict for the plaintiff. If the occasion was absolutely privileged, judgment will be given for the defendant. If, howover, the Judge decides that the occasion was one of qualified privilege only, the plaintiff must then, if he can. give evidence of ACtnal malice on the part of the defendant. If he gives no such evidence, it is the duty of the Judge to nonsuit him or to direct a verdict for the defendant. If he does give any evidence of malice sufficient to go to the jury, then it is a question for the jury whether or not the defendant was actuated by malicious motives. Malice is defined as any indirect and wicked motive which induces the de- fendant to defame the plaintiff. If malice be proved, the privilege attaching to the occasion is lost at once. In cases of slander the only way to prove publication is by call- ing those who heard the defendant speak the words. Whenever the words used are not well known and perfectly in- telligible English, but are foreign, local, technical, provincial or obsolete expressions, parol evidence is admissible to explain their meaning, provided such meaning has been properly alleged in the statement of claim by an innuendo. If the libel does not name the plaintiff, there may be need of some evidence to shew who was meant. The plaintiff may give evidence of all surrounding circumstances, i.e., the cause, the occasion 418 A( TION FOB DEFAMATION. of publication, later statements made by the defendant, and other extraneous facts which will explain and point the allusion. The plaintiff may also call at the trial his friends or others acquainted with the circumstances, to state that on reading the libel they at once concluded thai ii was aimed at the plaintiff. It is not enough for the plaintiff to prove his special character, and that the words refer tv himself: he must further prove that the words refer to himself in thai special character, if they be not otherwise actionable. The Judge must decide whether the occasion is or is not privi- leged and also whether such privilege is absolute or qualified. Malice may be proved either by extrinsic evidence of personal ill-feeling or by intrinsic evidence such as the exaggerated language of the libel, the mode and extent of publication, and other matters in excess of the privilege. If the defendant has pleaded a justification, the plaintiff's counsel may, if he chooses, rebut the justification, or he may leave such proof till the reply ; but he cannot call some evidence to rebut the justification and more afterwards, thus dividing his proof. The plaintiff need give no evidence of any actual damage where the words are actionable per se. He can nevertheless recover sub- stantial damages. But if the plaintiff has suffered any special dam- age, this should be pleaded and proved. It cannot be proved unless it has been pleaded. Where the words are not actionable per se, the plaintiff cannot prove a general loss of custom; he must call in- dividual customers and friends, and ask them why they have ceased to deal at his shop or to entertain him. In an action for libel, where no material or actual damage is proved, the plaintiff may recover exemplary damages: Filiatrault v. "La Patrie" Publication Co., Q. R. 28 S. C. 380. DEFENCE. The defendant's counsel often prefers not to call any witnesses, so as to have the last word with the jury. He may rely instead upon the cross-examination of the plaintiff's witnesses. These may be cross-examined not only as to the facts of the ease, but also as to the credit, i.e., as to matters not material to the issue, with a view of shaking their whole testimony; but the defendant must take the witness' answer — he cannot call any evidence to contradict it, except on the point, of a previous conviction. The defendant must oe careful not to increase by such cross- examination the amount of damages that may be given against him. The defendant may show that the plaintiff's trade is illegal. The defendant may show, in mitigation of damages, that he pub- lished the libel innocently, without any knowledge of its contents. i...i . 419 He may also of anti actions, or other circumstances well known to the bystanders, which Bhew thai the words wer d in their ordinary signification. The defendanl may urge that the occasion of publication was privi- leged. The defendant may also pro; ■ the justification. Strict proof must i bat tli" whole charge made is true in every particular. Where no justification is pleaded the defendant can give no evidence of the truth of his words not even in mitigation of damages. Held, that the fact thai the manager of the defendanl company had, in tne ordinary course of the correspondence of the company. handed to the company's stenographer to be typewritten by him a draft letter containing defamatory statements bul of a privileged character, did nol amount to such a publication of the letter as to take away the privilege. Boxsius v. Goblet (1894), 1 Q. J'». 842, followed: Puterbaugh v. Gold Medal Co.. 5 O. L. K. 680. In an action for slander if the words used by the defendant are capable of being reasonably understood in a slanderous sense, it should be left to the jury to find whether or not they were so used, and the plaintiff should not be non-suited on the ground that the words did not necessarily impute the commission of a crime: Cameron v. Overend, 15 Man. L. R. 408. Statement of claim alleged thai defendants " falsely and mali- ciously'' made statement x and also alleged special damage. De- murrer to statement overruled following: Western Counties v. Lawes Chemical, I.. R. !> Ex. 218; leme Silver Co. v. Staccy Hardware Co.. 21 O. R. 261. Slander of a firm, right of members to sue for same as individuals, and also as a firm, considered : Bricker v. Campbell, 121 U. R. 204. Finding by jury of "no damages." On such a finding judgmenl cannot be defendanl : Wills v. < orman, 11 A. It. 656; Bush v. McCormack, 20 O. R. 497. Poster advertising account for sale — libellous: Green v. Minnes, 22 O. R. 177. In an action for slander the defendant's statement was " You are a perjured villain, and I can put you behind tin- bars: you are a forger, and I can prove it." The judge left ii to the jury to say whether the defendant was really charging the plaintiff with having committed the crimes men- tioned. What he ought to have left to the jury was whether under all the circumstances the bystand 1 or would not have inferred thai the defendanl did or did nol impute the crimes to t In 1 plaintiff, according to what he actually said : Johnston v. Ewart, 24 O. R. at p. 120. The effect of a refusal by a witness to answer a question put to him considered. No inference adverse to the defendanl should be drawn: Nunn v. Brandon, '_'4 O. It. 37."">. A company incorporated for the purpose of publishing a newspaper can maintain an action of libel in respect of a charge of corruption iu the conduct of their 420 ACTION FOR DEFAMATION. paper without alleging special damage : Journal Printing Co. v. Mac- Lean, 23 A. It. 324. Facts intended to be relied on in mitigation of damages must be set out in the statement of defence, and unless this is done they cannot be given in evidence: Beaton v. Intelligencer, 22 A. It. 97. Notice of action. The statutes requiring notice of action cannot be invoked when the words spoken arc defamatory and have been uttered with express malice: llama v. Burnham, 20 O. R. at pages 33S. 331). Posl office inspector not entitled to notice of action: Hones v. Burnham, 23 A. Jt. 90. Notice of action addressed to editor: Burivell v. London Free Press, 27 O. It. G. When the occasion is privileged the plaintiff's case fails unless there is evidence of malice in fact, and the burden of proof on this point is on the plaintiff. He must adduce evidence upon which a jury might say that the de- fendant abused the occasion either by wilfully stating that as true which he knew to be untrue, or stating it in reckless disregard whether it was true or false: Hanes v. Burnham, 20 O. R. at pages 535, 53(5. See Wells v. Lindup, 15 A. R. 695; Ross v. Bucke, 21 O. R. at p. 702: Taylor v. Massey, 20 O. It. 420. In the case of Wills v. Carman, 14 A. R. 0H0. above referred to, a new trial was had, reported 17 O. It. 223. It was decided, as the defendant had pleaded " fair comment " Ue was entitled to show that the matters upon which he commented were true. This case was discussed and limited in Brown v. Moyer, 20 A. R. 509. The Court of Appeal held that under such defence evidence of the existence of a certain state of facts on which it was alleged the comment was fairly made was admissible, but not evidence of the truth of the statement Pleading justification is not in itself evidence of malice entitling the plaintiff to have the case submitted to a jury: Corridan v. Wilkinson, 20 A. R. 184. It is quite another question whether when the defence of privi- lege has failed, it may not be locked upon as some evidence of malice in aggravation of damages: Cases cited at end of judgment in last case. It is proper to ask witnesses who in their opinion, is aimed at by the libel in question. It is not proper to ask a witness whether, in his opinion, the alleged libel is likely to cause injury to the plaintiff's business: Journal Printing Co. v. MacLean, 23 A. It. 324. An action for libel lies against a municipal corporation: McLay v. Bruce, 14 O. R. 398. In an action of slander lor charging the plaintiff with stealing, evidence ot the general bad character of (lie plaintiff is not admissible in evidence in mitigation of damages: WilUston v. Stnith, 3 Kerr, 443 (N.I'..). In an action of slander where tlicre is undis- puted evidence that the words complained of applied to the plaintiff, it is misdirection to leave to the jury to find whether the defendant i he spoke the words intended the plaintiff without pointing out such evidence to them: Good v. Good, vol. 22, 439 (N.R.). Held, by the Court of Appeal, that a mercantile agency is not liable in damages for false information as to a trader given in rood faith to PENCE. 421 a subscriber making inquiries, the information having been obtained by the agency froi a person apparently well iiualified to give i', and there being nothing to make them in any way doubt its correct- ness. Coaaette v. Dun. 18 S. < '. K. 222, considered: /'ubin-ion ▼. Dun, 28 O. R. 21, 21 A. It. 287. On the trial of an action claiming damages for a libel alleged to be contained in a privileged communi- cation, the Judge charged the jury as to privilege and added '"if the detendanl made the communication bonn fide believing it to be true and the privilege existed that ! have endeavoured to explain then there would be no action against him:" Held, thai plaintiff was entitled to a more ezplicil statement of the law on a point directly affecting the proof of an issue, the burden of which was upon him: Green v. Milter. :;i S. ( . It. 177. An action of slander will not lie for words spoken to the plaintiff unless in the hearing of a third party: Gallant v. Colder, vol. 23. 73 (N.B.). In a libel action it was held that evidence of what took place at a meeting was ad- missible as proof that the plaintiff was the person intended by a reso- lution passed at it. the defendant having been present; and that a witness who was present at the meeting and took notes, which were afterwards printed, could refer to the printed copy after the de- si ruction of the original notes to shew exactly what did take place: Taylor v. Maaaey, 20 O. It. 420. In an action for slander the jury returned a finding of no damage, but said they could not agree as to whether their verdict should be for the plaintiff or defendant; upon which the trial Judge directed judgment to be entered for the defendant dismissing the action: Held, that the finding of no damage did not dispose of the action, but thai there should have been a finding on the charge of guilt, and a new trial was directed. ^YiUs v. carman. 14 A. It. 656, considered: Bu8h v. McCormacl;, 20 O. It. 407. By section 11 of the Label An of Manitoba. 50 Vict. c. 22, actual malice or culpable negligence must be proved in an action for libel unless special damages are claimed: Held, that a general allegation of damages by loss of custom is not a claim for special damages under this section. When- special damages are sought to be recovered in an action of libel or for verbal slander, where the words are actionable per ge, such special damage must be alleged and pleaded witli particularity, and in case of special damage by reason Of loss of custom the names of the customers must be given or other- wise evidence of the special damage is inadmissible: Aahdown v. Manitoba Free Press Co., 20 S. C. It. 43. In an action for slander, what a bystander says he understood the words to mean is not the guide the law provides for the jury. 'Plie true guide is what lie would on the occasion of the speaking of tlie words have reasonably understood them to mean. A jury should not be directed that they might draw an inference as to the sense 422 ACTION FOE DEFAMATION. in which words wore understood, from the conduct of a bystander, particularly where such conduct was equivocal. Although the amount of damages is, in a very large sense, in the hands of the jury, it is necessary always as a matter of law to direct their attention to the rule which the law prescribes for their guidance, and not to leave them under the belief that they need not make any inquiry as to the injury occasioned to the complainant by the slander, but were free to give whatever thoy thought proper. Watt v. McCuaig, 40 N. S. j.i. 553. A non-trading corporation having the right to acquire property which may lie the source of income or revenue, the transaction of the business incidental thereto creates a reputation, rights, and interests similar to those of an individual or a trading corporation, and must uave the same protection and immunities, and must be given the same remedies, in case of injury, as a trading corporation : and an action for libel brought by a company incorporated under the Benevolent Societies Act, was held to be maintainable without proof of special damage. Chinese Empire Reform Association v. Chinese Daily News- paper Publishing Co. 13 B. C. R. 141. The ordinary slang expression of calling a person a " fraud " does not mean that such a person has committed a fraud in the legal sense of the term, and to call a man " a liar and a fraud " is not slanderous. The expression is merely abusive language. Agnew v. British Legal Life Assurance Co., 8 F. 422. It is not contended nor can it be that the defendant in an action of libel can say, by way of defence to the action " I did not say of you what you claim that I did, but I did say of you some- thing else, and that is true:" Rassam v. Budge (1S93), 1 Q. B. 571, concluded that question : Kelly v. Ross, 1 O. W. N. 143. The ordinary doctrines of agency and of master and servant are as applicable to corporations as to private persons, whether they arise in questions of contract or of torts and frauds. A cor- poration is therefore liable for the publication by its agent of a libel when the agent is acting in the course and within the scope of his employment. Dicta to the contrary effect of 'Lord Cranworth in Western Bank of Scotland v. Addie, (L. R. 1 H. L. Sc. 145. 1G7), and of Lord Bramwell in Alrath v. North Eastern Railway (55 L. J. Q. B. 457. 458: 11 App. Cas. 247, 250), disapproved: Citizens Life Assurance Co. v. Brown, 73 L. J. P. C. 10": (1904) A. C. 423; 90 L. T. 739; 53 W. R. 176; 20 T. L. R. 497. A master is liable for a libel written by his servant while acting within the scope of his employment, although without special in- structions. So held, where the master was a voluntary association. Ellis v. National Free Labour Association, 7 F. 629. A Btatemenl of a trader thai goods of bis manufacture an luper- ior to those manufactured l>y another rival trader, although untrue and made maliciously, is uol actionable as a defamatory libel, nor does such statemenl afford ground for an action for disparagement of goods, even if the plaintiff is damnified by it, and avers sp damage. HuVbuck v. Wilkinson, Heyuood d ' lark, 68 L. J. <_>• B. 34; (1899) 1 Q. B. 86; 79 I.. T. Held, in an action for slander, thai when, the alleged slanden words being spoken iu a foreign language, the person to whom the words are spoken repeats the words and states the meaning thereof iii English, it will be assumed in the absence of evidence to the contrary, that he understood such foreign language. 2. That when the slanderous words complained of charge an offence, it is sulli- eient to prove the gist of the offence. 3. That counsel have auth- ority to consent on behalf of their clients to judgment being given by one Judge on evidence taken before another Judge. Rcibinder V. Bengert, 1 Sasfc. L. R. 259. 7 W. L. R. 891. Held, that under the Rule governing costs in British Columbia, as distinguished from that in force in England, the trial Judge must find good cause for depriving a successful party of his costs ; and here there was not such good cause. World Printing and Publishing Co. v. Vancouver Priutinr/ and Publishing Co., 13 P>. C. R. 220 A writer who publishes defamatory statements of a person whom he names, but whom he intended to be fictitious and of whose existence he did not know, is liable in damages to a person bearing that name who would be understood to have been aimed at by his friends and acquaintances. Defamatory statements were published in a newspaper o f a person described as 'Artemus Jones. 'The writer intended the name to be fictitious, and did not know of the existence <>! a person bearing that name. The statements were published in good faith. The plain- :i. bore the name of Artemus Jones, and had been in ill" employment <>f the defendants and a contributor to their publications. The facta Stated in I he article of Artemus Jones were not true of 'In' plaintiff. In an action for li!>:!. verdict and damages were given at the trial, and the Courl of Appeal dismissed the defendants' appeal. The House affirmed the decision of the Court of Appeal (78 L. J. K. B. 937; (1909) 2 K. B. 444. Jh. Hulton v. Jones, 7!' I.. J. K. B. 198; (1910), A. C. 20; 101 ].. T. S. J. 116; 26 T. !.. R. 11. I.. (K.i. Whoever by language, written or spoken, incites or encourages others i<> use physical force or violence in some public matter con- nected with the State. i< guilty of publishing a seditious libel. The test whether the statement is a sedi tous libel is uol either the truth 424 ACTION FOB EXCESSIVE DISTRESS. of the language or the innocence of the motive with which the state- ment is published, bin is this: Is the language used calculated to promote public disorder or physical force or violence in a matter of State? Rex v. A Id red, 71 J. P. 55. ACTION FOR WRONGFUL DISTRESS. See Ont. Statutes, 1910, chapter 75, as to mode of settling dis- putes where goods are distrained. Trespassing animals may be distrained for damage feasant for injuries to other animals as well as damage to the freehold: Bowden v. Roscoe (1S94), 1 Q. B. 608. A bailiff in order to distrain for pent climbed over a wall into the back yard of the house and entered and distrained: Held, lawful: Long v. Clark (1894). 1 Q. B. 119. " A man's house is his castle." The force of this maxim is to ex- tend the immunity to the outer door, not only to all dwelling houses, but also to all buildings whatsoever and to the outer gates of all enclosures as regards distress and execution: American Concentrated Meat Co. v. Hendry (1893), W. N. 82. Excessive Distress. Founded on 52 Henry III., c. 4, (R. S. O. 1897, c. 342, s. 5), which enacts thai "distress shall be reasonable and not too great, and he that taketh great and unreasonable distresses shall be griev- ously amerced for the excess of such distresses." The plaintiff must prove: 1. The tenancy of the de- fendant at a certain rent; 2. The rent claimed to be due; 3. The taking a distress of goods of much greater value than the rent in arrear and charges of the distress; 4. The damages. The simple fact of making a distress accompanied by an untrue claim of more renl than is due. and selling the goods under such claim, is not actionable unless some special damage be proved, or unless it be shewn thai a larger quantity of goods has been sold than was sufficient to satisfy the rent actually in arrear: Tancred v. Ley- land. 16 Q. B. 669. In an action for excessive distress, the plaintiff may recover, though no special damage be proved: Black v. Coleman, 29 U. C. C. P. 507. The tenancy must be proved by production and proof of the lease, or by the defendant's receipts for rent or notices to quit, or other 425 aumissioo by him of the tenancy »r by oral evidence of t li«» contract when there is aone in writing. These preliminary statements are, however, usually admitted by thr bailiff's notice of distress or other proc The plaintiff must prove thai his goods were distrained, bul it is not necessary to prove thai they were sold or taken away; the seizure as a distress is sufficient. The fact of the distress may be proved by calling the hniliff or other person who made the distress, who will also prove his authority from the defendant. If this evidence cannot i>e procured, the plaintiff should serve the defendant with notice to produce the warrant of distress and give secondary evidence of it. or should connect the act of the bailiff with the defendant by some oilier evidence. When a landlord is about to make a distress he is not bound to calculate very nicely the value of the property seized but he must take care that some proportion is kept between thai and the sum for which he is entitled to take it. In order to est a I dish the excess the plaintiff must be prepared with proof of the value of the goods seized. The question of excess is for the jury: Smith v. Ashforth, 20 L. J.. Ex. 2f>0. After a distress for a month's rent it is not illegal to make an- other distress for the next month's rent, although it was due and in arrear at the time of the first distress. Under 11 Geo. II. c. 19, s. 19, the want of the sworn appraisement required by 2 W. & M., s. 1, c. 5, is only an irregularity, and the tenant can only recover such special damage as be can show to have resulted from it. Lucas v. TarUtun, II. & N. 116, and Rodger* v. Parker, IS C. B. 112, followed: McDonald v. Fraser, 14 Man. L. II. 582. DEFENCE. Not guilty, by statute 11 George II.. c. 19, ss. 1!). 20, 21 R. S. O. 1S07 c. .142, s, IT. The defendant may give evidence ihat the distress was not excessive, or that the chattel distrained was entire, and that, there was no other distress; but this statute does not apply to an illegal distress: Field v. Mitchell, 6 Esp. 71. Where a party distrained as landlord on goods which, as a matter of fact, had by subsequent agreement between himself and the tenant before the distress, becomes his absolutely. Held, that he might justify the taking on this latter ground: Bell v. Irish, 47, U. < '. K. 170: Schultz v. Reddick, 4-', \ . < '. R. 155. As to exemptions from distress. Property of strangers. Section 31 of the Landlord and Tenant Act (R. S. O. 1897, sec. 170>. pro- vides generally that goods on the premises not the property of a 426 IEREGULAB DISTRESS. tenant are to bo exempt from seizure. Exceptions arc made in favour of execution creditors and purchasers for value other than relatives. Exemptions from the tenant's own property are by sec. 30 of the same Act stated to be the goods and chattels exempt from seizure under execution. A Hsl of these goods is found in section 3 of the Execution Act, Ont. Statutes, 1909, c. 47. The common law right of distress for rent in arrear can only be exercised by the owner of the reversion, which must be vested in him at the time of the distress. Staveley v. Allcock, 1G Q. B. 636, and Smith v. Torr, 3 F. & F. 505 5 followed. A tenant, therefore, who makes a sublease of the property for the whole of his term with- out reserving to himself any right of distress cannot distrain for rent in arrear due under the sublease, as he has parted with the reversion. The payment of rent under the sublease does not operate as an estoppel so as to confer a right of distress for subsequent arrears of rent which otherwise does not exist. Hazeldene V. Beaton Cab. & EL, 40, followed. O'Connor v. Peltier, 8 W. L. R. 576, 18 Man. L. R. 91. IRREGULAR DISTRESS. At common law goods distrained for rent were merely a pledge, and could not he sold. 2 William and Mary, c. 5, R. S. O. 1897, c. 342, gave the landlord the power of selling the goods, subject to the provisions of that Act, which must be strictly complied with. If there was any irregularity in making or treating the distress, the landlord was at common law liable as a trespasser ab initio. This rule was altered, in the case of a distress for rent due, by 11 George II., c. 19, s. 19, R. S. O. 1897 c. 342, s. 17, which enacts i hat a party aggrieved by an irregularity can recover satisfaction for the special damage sustained thereby. In an action for selling goods distrained for rent without ap- praisement the measure of damages is the real value of the goods sold minus the rent due: Knight v. Egerton, 7 Ex. 407; Schultz v. Reddick, 43 U. C. R. 155. An action for treble damages for pound breach or rescous of goods distrained for rent, under sec. 4 of 2 Will. & M. c. 5, is maintainable by the landlord without proof of any special damage suffered by him: Kemp v. Christ max, 79 L. T. 233. 1 >EFENCE. By 11 George II.. c. 19, s. 20. R. S. O. 1897 c. 342, s. 18, it is provided that the tenant shall not recover for any unlawful i irregularity if tender of amends has been made by the party distrain- ing before action brought. [LLBG \l. DISTBEE 427 ILLEGAL DISTRESS. Where a distress is made by a Btranger, or by a person who has no righl to distrain, an action for trespass or conversion will lie. Where a distress is made by a landlord (1) no rent being due, or (2) after a tender of the rent, or (3) after a formal distress, or (4) if the distress be illegal owing to the time, place, or manner of making it, or from the nature of the goods taken, the pro< ding is illegal ah initio, and an action for trespass or eonversion or of re- plevin, may be maintained. Where a landlord disl rains and sells when 1 no rent is duo. by 2 W. & M. Sess. 1. c. 5, s. 4, R. S. O. L897 c. :;4L\ s. 18 (2), the plaintiff shall recover double the value of the goods distrained: see McCallum v. Snyder, <; 1". C. I.. .1. 187; Hope v. White, 17 U. C. 0. P. 52; /•%// v. Irish, 45 C C. R. 167; McCaskiJl v. Rodd, 14 O. R. 282. An action for distraining for more rent than is due cannot b< maintained without a lender of the sum which is really due: On, Taylor, 39 U. C. R. 35S. In the case of an illegal distress, the measure of damages is usually the value of the goods seized, and no deduction can be allowed for any rent due : Attack v. Bramwell, 3 B. & S. 520. Where distress and sale are made for rent when no rent is due to the person distraining, the owner of the uu.kIs is entitled under R. S. O. 1897, ch. 342, sec. 18, sub-sec. 2, to recover double the value of the goods distrained or sold, and full costs of suit. The right to recover t lie double value not only exists against the landlord but extends to his officers and bailiffs engaged in the illegal proceedings: W*l,b v. Bom, 19 O. I.. It. 540. DEFENCE. The defence of not guilty by statute above referred to (11 George II.. c. 19) K. K. <>. 1897 c. 342. lets in evidence of everything thai might lawfully he done in order to make the distress. R. S. O. 1897, <■. 17<>. s. 31, •"An Acl respecting the Law of Landlord and Tenant." contains provisions as to exemptions from distn Section 27 that goods exempt from seizure under execu- tion are not liable to seizure by distJ By section 28 goods on tie' premises not the property of the tenant are to be exempt under certain restrictions. Section 33 gives the tenant a right of set-off against the rent du<\ a debt due to him by the landlord. 428 DEFENCE. By section 32 a tenant who is in default for non-payment of rent, and claims (he benefit of the exemption under the Act, must give up possession of the premises. By section 35, the common law strict demand of rent is dis- pensed with when the landlord is entitled to re-enter. Unless the premises are vacant, the demand must be made fifteen days at least before entry. By section 30, when growing or standing crops, which may be seized and sold under execution, are seized for rent, the landlord need not reap, thresh, gather, or otherwise market such crop, but may adveitise and sell them like other goods. Sections 27, 28, 29, 30 and 34 apply only to tenancies created on or after the 1st of October, 1887. The protection of goods of lodgers from (list ress is provided for by section 39. The boarder or lodger may serve on the landlord, or on the person making the distress, a declaration that the immediate tenant has no property in the goods distrained, and that such goods are the property of the lodger, also setting out what amount is due for rent or board from the lodger to the immediate tenant. If the landlord, after re- ceiving the declaration and the rent due by the lodger, proceeds with the distress against the lodger's goods, he is liable to an action for illegal distress. The Assessment Act. Out. Statutes 1904, c. 23, by section 103, exempts from seizure for taxes goods of third person where the owner is not in possession. The effect of sections 2, 3, 0. 20 and 21 of the Act respecting Pounds, R. S. O., 1897, c. 272. is to give a right to impound cattle trespassing and doing damage, but with a condition that if it be found that the fence broken is not a lawful fence, then no damage can be obtained by the impounding, whatever may be done in an action of trespass. Cattle feeding in the owner's enclosure, or shut up in his stables, cannol be held to be running at large when they may happen to escape from such stable or enclosure into the neigh- bouring grounds. Ives v. Hitchcock, Dra. 247, commented on: McSloy v. Smith, 20 O. Et. 508. An entry by a bailiff under a distress warrant for rent, must be through the ordinary and natural means of ingress to the place where the distress is aboul to be made: Anglehart v. Rathirr. 27 U. C. C. P. !>7. A tenant is not precluded from setting up his title to goods illegally distrained for alleged fraudulent removal because of a pretended sale of them by him, the effect of which was to vest the possession, but not the property, in the goods in the alleged purchaser: Whitelock v. Cook, 31 O. Et. 463. ACTION FOB -i DUCTION. 429 ACTION FOR SEDUCTION. These actions arc no1 cognizable by Division Coi Hy Out. Statutes L909, c. 11, the following provisions are made: The father, or in case of his death, tin' mother, whether s '"' when ac- renjains a widow or has married again, of an unmarried female who 'ion main- has been seduced, and for whose seduction the father or mother could ^ father maintain an action, if such unmarried female was at the time dwelling or n under his or her protection, may maintain an action Tor the seduc- tion, notwithstanding such unmarried female was at the time of her seduction serving or residing with another person upon hire or other .vise. By section .">, upon the trial of an action for seduction broughl Proof of by the father or mother, it shall not be necessary to prove service service dispensed performed by the person seduced, hut the same shall iu all cases be with. presumed, and no proof shall be received to the contrary. In case the father or mother of the female seduced had. before When «c- the seduction, abandoned her and refused to provide for and retain : lon mam ' tamable her as an inmate, then any other person who might at common by master, law have maintained an action for the seduction, may maintain such etc - action. By section 4 any person other than the father or mother who Where could at common law have maintained an action for an unmarried tattl f r or mother not female may still maintain such action if the father or mother be not resident in resident in Ontario al the time of the birth of the child which may be Ontario. born in consequence of the seduction, or, being resident in Ontario, does not bring an action for the seduction within six months from the birth of the child. By section .">. if the father and mother of an unmarried female Who may who has been seduced are both dead, and such unmarried female is m ai ntain under the age of twenty-one. any person who, at the time of the wnere birth of the child which is born in consequence of the seduction, was parents of WOH1HH the legal guardian of, or stood in loco parentis to such unmarried a ,]««<] female, may maintain an action for the seduction, notwithstanding besides that such unmarried female was. at the time of her seduction, serving en) P Iover - or residing with another person upon hire or otherwise. Subject to the above Act the plaintiff must prove: 1. Tbat the party seduced was in the plaintiff's service; 2. The seduction. The plaintiff must prove the defendant to have been the father of the child; mere proof of seduction by him will not be sufficient : Kimball v. Smith, 7, \\ ('. R. 32. 3. The subsc- qnent loss of service. The plaintiff cannot give evidence of the daughter's good char- acter, except in answer to evidence of general bad character given on the other side: Bamfield v. Masse y, 1 Campbell, 460. 430 ACTION FOB .MALICIOUS ARREST. The mother suing as the mistress of the girl has a sufficient common law right to bring the action: Gould v. Erskine, 20 O. R. o47. It is necessary to allege and prove the relationship of father and daughter, her seduction by the defendant, that pregnancy resulted from such seduction, and that the defendant is the father of the child of which she is so pregnant, or of which she has been delivered, as the case may be: Evans v. AYatt, 2 O. R. 106. The connection took place while the daughter resided at service with the defendant, and there was no evidence of any possible loss of service to the father, and there was neither birth of a child nor pregnancy ; there is no right of action either at common law or under the statute. Not at common law, because, apart from any other reason, no loss of service was proved; nor under the statute, because there was no pregnancy : Harrison v. Prentice, 16 C. L. T. 393. Proceedings may be continued against defendant's personal repre- sentatives : Laird v. Fairvloth. 14 P. R. 253. DEFENCE. Tne defendant may shew that he is not the fa*-b*»* o f th? child. In mitigation of damages the defendant may shew the loose character ol the girl. Vincent v. Sprague, 3 U. C. R. 283, and Brown v. Dalby, 7 U. C. R. 1G0, considered. Oamorll v. Reggie (E. v. F.), 10 O. L. R. 489, 11 O. L. R. 582. Evidence as to defendant's mean? is inadmissible : Ferguson v. Veiteh, 45 U. C. R. 160. In actions for seduction only if rape only be proved plaintiff must fail : Reg. v. Doty, 25 O. R. 362. In an action for enticing away and having carnal knowledge of the plaintiff's daughter, the plaintiff was allowed at the close of the case to set up as an alter- native the enticing away of the daughter, and the having connection with her by force and against her will, and consequent loss of service : Cole v. Hubble, 26 O. R. 279. ACTION FOR MALICIOUS ARREST AND ABUSE OF CIVIL PROCESS. In an action for malicious arrest the plaintiff must prove: 1. The affidavit for the Judge's order to arrest; 2. Its falsehood; 3. The order for the arrest; 4. The arrest under it; 5. The rescission of the order or the determina- u tion of the suit; 6. The defendant's malice and want of reasonable and probable cause; 7. The damage: Colbert v. Hicks, 5 A. It. 571. S Coffey v. Scane, 25 0. R 22. As to actions against magistrates and o e under "Actions for False [mprisonmeni:." The present Ontario Act respecting arrest and imprisonment for debt is Ontario Acts 1909. c. 50. When special damage is claimed in consequence of an unlawful imprisonment by n justice of the peace, e.g., the ci lining the plaintiff's discharges from prison, it should be- stated in the notice of action, otherwise the plaintiff cannot give evidence of it: Sewell v. Olive, 2 All. 304 (N.B.). A party applying to a magistrate for a warrant to arrest another for an alleged offence is deemed onl appeal to the magistrate to exercise his jurisdiction, and is not liable in trespass for an arrest under the warrant; but if he goes beyond this and interferes in the exercise of the ministerial powers under the warrant he will be liable: Kingston v. Wallace, et al., vol. 25, 573 (N.B.). On the trial of an action for malicious arrest the Judge is not required when the evidence touching the facts upon wuich the ques- tion of reasonable cause depends is contradictory, to tell the jury whether or not there was reasonable or probable cause for the ar but directs them properly in telling them that if they find one way on the evidence there is reasonable cause, if they find otherwise there is not: Cox v. Gunn, 2 It. & (1. 528 (N.S.)- In an action for a malicious arrest upon a bailable capias issued out of this Court, the affidavit upon which the writ issued having been filed, may be proved by an exemplification under the seal of the Court ; and of the defendant's signature to the original affidavit is not necessary, if it appears that the arrest was made by his procurement : Went- worth v. Hallett, 2 Kerr. 560 (N.B.). An anion will not lie for maliciously and without probable cause detaining the plaintiff in prison after payment of the debt for which he was arrested, unless a legal determination of the suit is shewn; or the plaintiff had been ■d to be discharged by the Court: McPhelim \ Weldon, 5 All. 358. Any motive for a prosecution other than that of bringing a guilty party to justice is a malicious motive. Malice may be inferred from the want of probable cause; and the inference is strengthened where the defendant does not come forward as a witness to rebut it: Bwgoyne v. Moffatt, 5 All. 13 (N.B.). If the statute has not been pleaded, honest belief is no defence if there existed no reasonable ground for such belief: McKay v. Oummings, <; <>. it. 400. A corporation is liable in tort for false arrest when the charge is laid under instructions from its vice-president and local manager: Leonard v. Ramsay. Q. R. 30 S. C. 345. 432 ACTION FOR MALICIOUS ARREST. In an action for damages for false arrest the function of the jury is only to find whether the evidence adduced establishes facts from which good faith and reasonable and probable cause or malice, and want of reasonable and probable cause can be deduced; the inferences of good or bad faith, reasonable and probable cause, or the absence thereof to be drawn from such facts is a question of law to be deter- mined by the Court alone, and the jury ought to be guided on ques- tions of law by the Court : Belanger v. Larocque, Q. It. 25 S. C. 403. A plaintiff may sue for damages for false arrest, alleging tuat the information, trial and conviction were irregular, null, arbitrary, malicious, ultra vires; thai the conviction was quashed as such upon certiorari; and that the plaintiff has suffered damage owing to the fault, negligence and imprudence of the defendants and their em- ployees, such allegations being in effect sufficient charges of want of probable and reasonable cause: Leonard v. Uelormc, 6 Q. P. It. 349. Held, reversing the decision of the Divisional Court, 8 O. L. R. 251, that the defendant, a police constable, who assaulted the plaintiff, if he intended to act. as possibly he did, in his office of constable, aid so voluntarily and without authority, <>r any reason to think that he had officially authority to do what he did, and was therefore, although the plaintiff did not prove malice not entitled to the pro- tection afforded by s. 1, s.-s. 1 of R. S. O. 1897, c. 88, and was liable for the trespass: Kelly v. Barton, 26 O. R. 608, 22 A. R. 522, fol- lowed. Review of English and Ontario cases : Moriarity V. Harris, 10 O. L. R. 610. In an action for damages for false arrest the onus is on the plain- tiff to prove that there was not probable cause for the arrest, and that the defendant was actuated by malice. Malice alone is not sufficient, there must be absence of probable cause. The theory of probable cause, according to English law, does not prevail in Quebec; the rule of the French law must be applied : (Uyuere v. Jacoo, Q. R. 10 K. B. 501. The defendant, the chief of police for (be city of Winnipeg, went to the plaintiff's house, and while there an altercation ensued and the plaintiff applied an abusive epithet to the defendant. For this the defendant arrested the plaintiff and cocked him up, and on being brought before a magi si rale the plaintiff was convicted, but. the con- viction was quashed. The plaintiff then brought this action for false imprisonment and malicious prosecution : Held, that even assuming the use of the abusive epithet to have been an offence, the defendant was not justified in arresting the plaintiff in his own house, the law constituting it an offence only when occurring on a public street, etc. : Held, also, that there was no reasonable and probable cause for the prosecution of the plaintiff: Fitch v. Murray, T. W. 74 M. L. R. (Man.). A person is not liable to an action for false imprison- ILLEGAL PB0C1 EDING , 433 ment who merely lodges a complaint before a justice and leaves the proceedings to be taken in the discretion of the magistrate: Broun V. Moore, 2 Pug. 407 ( N.B.). In an action for a malicious arresl on n ca. $a. the question to be submitted is nut whether the assignment of the property which caused defendant to arrest really is fraudulent or not, but whether defendant had pood reason to BUS] t ii : (hmn v. M< Donald, 6 I K. 596. Where in an action against a constable fur false arrest, it was found by the jury that the defendant acted in the honest belief that he was discharging his duty as a constable, and was not actuated by any improper motive, he is entitled to receive notice of action; and such notice must state not only the time of the commission of the act complained of, but that it was done maliciously: Scctt v. Rcburn, 25 O. R. 450. In an action for malicious arrest and for destruction of liquor under R. S. O. 1877, c. 73: Held, following Legacy v. Pitcher, 10 O. R. 620, that in such an action the venue need not be laid where the offence was committed: Bond v. Conmee, 15 O. R. 716, 16 A. R. 39L. Where in an action for malicious arrest the facts are uncon- tradicted, the question of reasonable and probable cause must be de- cided exclusively by the Judge. The action at the trial was treated as one for malicious arrest, and in that view a non-suit was entered. In term it was argued that the action was really one of trespass, and that the whole case should have been left to the jury as such, but the Court held that it was too late to urge this: Donnelly v. Baicden, 40 U. C. A. 611. ILLEGAL PROCEEDINGS. Any trade union, whether registered or not, can be sued in Court by means of a representative action for illegal interference with employers or business of plaintiffs. Dominion Coal t'o., Ltd. v. Bouf field, 8 E. L. R. 145; The Taff Vale Railway Company v. Ama!ga~ mated Society of Railway Secants (1901), A. C 426. Workmen who in carrying out the regulations of a trade union forbidding them to work at a trade in company with non-union work- men without threats, violence, intimidation or other illegal means, take such measure as results in preventing a non-union workman from obtaining employment at his trade in establishments where union workmen are engaged, do not thereby incur liability to an action for damages. Judgment of the Court of Queen's Bench (Q. R. 6 Q. P. 65) aflirmed: Perrault v. Gauthiei ct ul., 28 S. C. R. 241. K.E.— 28 434 ACTION FOR ILLEGAL PROCEEDINGS. Maliciously inducing employer to discharge servant and not to employ servant. An act lawful in itself is not converted by a mali- cious or bad motive into an unlawful act so as to make a doer liable to a civil action: Allan v. Flood (1898), A. C 1. A workman sued an insurance company which undertook the insurance of employers against risks under the Workmen's Compen- sation Act. He averred that the company were in the habit of issu- ing to insurers lists of workmen " whom they insist shall not be employed by said parties," that they had unwarrantably placed his name on these lists, and that, in consequence thereof, he had on two occasions been dismissed from his employment, and on a third occa- sion had been refused employment after having been engaged. — Held, that the averments disclosed no actionable wrong : Mogul Steamship Go. v. McGregor (61 L. J. Q. B. 295 (1892), A. C. 25) ; Allen v. Flood (67 L. J. Q. B. 119, (1898), A. C 1). and Quinn v. Leathern <70 L. J. P. C. 7G, (1901), A. C. 495) commented on. MacEenzie v. Iron Trades Employers' Insurance Association (1910), S. C. 79 — Court of Session. Although the rule may be otherwise with regard to crimes, the law of England does not take into account motive as constituting an element of civil wrong. The existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into civil wrong for which reparation is due. Dicta in this regard of Lord Esher (then Brett, L.J.) in Bowen V. Ball (50 L. J. Q. B. 305; G Q. B. D. 333) and in Temperton v. Russell (62 L. J. Q. B. 412; (1893), 1 Q. B. 715) disapproved. Dicta of Lord Esher, M.R., and Lopes, L.J., in Temperton v. Russell, that it is actionable maliciously to induce a person not to enter into a contract, disapproved : Allan v. Flood, 67 L. J. Q. B. 119; (1898), A. C. 1 ; 77 L. T. 717; 46 W. R. 258; 62 J. P. 595. An action is maintainable by an employer against persons who, to his damage, maliciously conspire to induce his servants to break their contract of service, and also for conspiring together to injure him by preventing persons from entering into contracts with him : Allen v. Flood (67 L. J. Q. B. 119; (1S98), A. C. 1) distinguished. Temperton v. Russell (62 L. J. Q. B. 412; (1893), 1 Q, B. 715) followed. Leathern v. Craig (1899), 2 Ir. R. 667. Whilst workmen, members of a trade union, have a right to strike and to combine for that purpose in order to improve their own position, provided the means resorted to be not in themselves unlawful, yet they have no right to induce other workmen, who are not members of the union and who desire to continue working, to leave their employment, or to endeavour to prevent the employers from getting other men to work for them and for that purpose to ACTION FOB [LLEGAL PEOC] 436 watch and beset the places where the men happen to be, or to induce tne employers' workmen t<> break their contracts, as these are ac- tionable wrongs, and picketting and besetting are • made un- lawful by s. 501 of the Criminal Code: Quinn v. Leathern (1901), A. C. 511; Read v. Friendly Society (1902), 2 K. B. 732; South Wales Miners Federation v. Glamorgan Coal Co. (1905), A. C. 239; Lyons v. Wilkina (1899), 1 Ch. 25.",. and Churnock v. Court (1S99), 2 Ch. 35. followed : Held, also, that all the defendants who had par- ticipated in or counselled or procured the acts condemned, wore each individually liable for the whole amount of the damages suffered by the several plaintiffs in consequence of those acts, but not for any damage caused by themselves quitting work: Krug Furniture Co. V. Berlin Union, 5 O. L. R., at p. 4G9, followed. The destruction during the progress of this suit of a book kept by an officer of the Union at its headquarters, in which were recorded minutes relating to the strike and the non-production of a strike register kept and of the reports handed in from day to day by mem- bers of the Union actively engaged in picketting and officially ap- pointed for that purpose were circumstances that justified the Court in presuming that they contained entries unfavourable or damaging to the defence and in being satisfied with less convincing evidence than might otherwise be required that the wrongful acts of certain members were the authorised acts of the Union : Taylor on Evidence, 10th ed., p. 117; Cotter v. Osborne, 18 Man. L. R. 471, 10 W. L. R. 354. Watching and besetting workmen will support an action for nuisance at common law, to which proof that the watching and besetting was for the purpose of peaceful persuasion would be no defence: Lyons v. Wilkina, 68 L. J. Ch. 146; (1899), 1 Ch. 255; 79 L. T. 70!> : 47 W. B. 291 : 63 J. P. 339. Although it is not illegal for the officers of a trade union to prevent a sub-manufacturer from working for a manufacturer by withdrawing the sub-manufacturer's workmen from his employ, it is illegal for such officers to watch or beset the sub-manufacturer's premises for the purpose of persuading or otherwise preventing him from so working, or for any purpose except merely to obtain or communicate information: Allen v. Flood (67 L. J. Q. B. 119; (1898), A. C. 1), considered and applied. Lyons v. Wilkina, G7 L. J. Ch. 383; 7s I.. T. 618; 46 W. R. 461. In an action for enticing servant to desert : Held, that this did not in law amount to a permission to leave his service: Hewitt v. Ontario Copper Lightning Rod Co., 44 I*. C. R. 287. See also Dil- lingham v. Wilson, 6 O. S. 85. It is an actionable wrong to persuade a servant to break his con- tract with his master, and it is no excuse that the persuador is not actuated by ill-will to the master, but acts in good faith in pur- suance ef the provisions of the constitution of a trade union, of 436 ACTION FOR ILLEGAL PBOCEEDINGS. which he and the servant are members. The principles of South Wales Miners' Federation v. Glamorgan Coal Co. (1905), A.C. 239, and Read v. Friendly Soeiety of Operative Stonemasons (1902), 2 E. B. 732, applied : Branch v. Roth, 10 O. L. R. 284. A conspiracy to injure, if there be damage gives rise to civil liability; and an oppressive combination differs widely from an invasion of civil rights by a single person. It is a violation of right to interfere with contractual relations recognized by law if there be no justification for the interference. This principle cannot be con- fined to inducements to break contracts of service. If such wrong- ful interference with a man's liberty of action is intended to injure and in fact damages a third person, such third person has a remedy by an action: Quinn v. Leathern, 70 L. J. P. C. 76; (1901), A. C. 495 ; 85 L. T. 289 ; 50 W. R. 139 ; Go J. P. 708. By their statement of claim the plaintiff alleged that the defend- ants combined with others to prevent them carrying on their trade, by inducing third persons not to deal with them : Held, that this did not violate any right of the plaintiffs, and therefore the statement of claim disclosed no cause of action : Held, per Bigham, J., that in- tention is immaterial if the acts themselves are not wrongful ; per Phillimore, J., that given a combination, the motive and purpose make all the difference: Boots v. Grundy, 82 L. T. 769; 48 W. R. 638. As there was evidence of damage resulting to the plaintiffs from the act of the defendants, the plaintiffs were entitled to an injunc- tion and an enquiry as to damages. Proposition laid down by Lord Maenaghten (70 L. J. P. C. 76 at p. 83; (1901), A. C. 495, at p. 510) applied : National Phonograph Co. v. Edison Bell Consolidated Phonograph Co., 77 L. J. Ch. 218; (1908), 1 Ch. 335; 98 L. T. 291 : 24 T. L. R. 201 C. A. The principle on which the Court acts in restraining an em- ployee from divulging matters relating to his master's business is that there is an implied term in the contract of service not to use, to the master's detriment, information obtained in the course of his service : Kirchner v. Cruban, 78 L. J. Ch. 117; (1909), 1 Ch. 413; 99 L. T. 932. In cases where interference with a contractual relation is ac- tionable, substantial damage must be proved. Such inducement or procurement is not interference with a contractual relation within the meaning of Quinn v. Leathern (70 L. J. P. C. 76; (1901), A. O. 4!)5) ; National Phonograph Co. v. Edison-Bell Consolidated Phonograph Co., 76 L. J. Ch. 194; 96 L. T. 218; 23 T. L. R. 189. Where there is a cause of action independently of a wrong caus- ing the death — such as a brea\. 439 The onus of proving the wain of reasonable and probable canse, and uf proving the existence of such fads as arc evidence of such want, lies on the plaintiff. "Reasonable and probable cause is for the Judge:" Hurt:!, v. Eutchinaon, 20 O. R. ::^S: Wilson v. Tennant, 25 0. R. 339. In an action for malicious prosecution the question of reasonable and probable cause is for the Judge. The jury mi i find ■ n rh( '"'ii which reasonable and probable cause may be i'i ferred, bul tin- inference from the facts found must be drawn by the Judge. Actual malice need not be proved, but may be inferred from the absence of probable cause, it is no answer to an action for malicious prosecution that the conviction against the accused (plain- tiff) was quashed by reason of a proviso in the statute creating the offence excusing the act charged. The evidence of a witness taken a magistrate on a criminal charge is admissible in an action for malicious prosecution founded on that charge, where the witness at the time of the trial is dead: Peck v. Peck, 35 X. I'.. Reps. 484. If there is any Conflict of evidence the jury must find as to facts. The Judge cannot withdraw the case from them because in his opinion there was reasonable and probable cause for the prosecution : Hamil- ton v. Cousineau, 10 A. R. 203. In an action for malicious prosecution and false imprisonment, where the circumstances connected with the offence with which the plaintiff was charged in no way pointed to him as the guilty person, and the defendant interfered at the time ,,f the arrest and failed to prosecute, want of probable cause may be inferred: Semble, if the verdict is general, and all the damages might have oeen recovered on either count, the Court will not grant a new trial, but will, if neces- sary, direct the verdict to be entered on the count sustained by the evidence: 8avage v. l'.r I*. (.'. K. 143. De< fendanl gave abundance of evidence to shew reasonable cause. The Judge left it to the jury to say whether thej believed thai defendant received the information stated to have been given, ami whether he thought it to !>»• true thai the plaintiff was about to have the Pro- vince: Held, that the jury should have been told that the plaintiff had not proved a want of probable cause: Smith v. McKay, 1<> 17. C. ft. 112 and 613. An action lies for wrongfully issuing and executing a search warrant. Issuing a search warrant is not a mere ministerial but a judicial act of the justice, aud the warrant in this case was illegally obtained and might hive been quashed by reason of the fact that the information did not disclose facts and circumstances shewing the causes of suspicion: Rex \. Kehr (1906), 11 O. L. ft. ."17 specially referred to. WilUnsky v. Anderson, 19 O. L. K. b">7. It should have been left to the jury as far as respects the search warrant to find whether the defendants did "lay all the facts of the case fairly before counsel and whether they acted bona fide upon the advice given": Ravenga v. Mcintosh, 2 B & C. 693. If there are facts in dispute the jury must pass upon these facts before the Court can say whether reasonable and probable cause is or is not absent. Still v. Hastings, 13 O. L. ft. 332 ; Willinsky v. Anderson, l < >. W. N. 13. In an action for damages for malicious prosecution, the onus is on the plaintiff to prove, not only that he was discharged from the prosecution, but that the defendant, who prosecuted him acted mali- ciously and without reasonable or probable cause: Desaulniers v. Hird, Q. K. 15 K. ft. 394. An action for malicious prosecution will lie against a limited com- pany or corpora! ion : Edwards v. Midland Railway ( oO L. J. Ex. 281; t'« Q. B. D. 287) followed, st-nns \. Midland Counties Rail- irai/ (23 L. J. Kx. 328; It) Ex. 352) not followed. Judgment of Lord Bramwell in Abrath \. North-Eastern Railway (55 L. J. Q. i'>. •4." : 11 App. <'as. 247). commented on. Cornford v. Carlton Bank, 68 1-. J. O. R. S8. Where the facts are distinct and uncontradicted, and there is no in- ference of fact, the question of reasonable and probable cause is one wholly of law. But where any fact or inference of fact is involved, the question must be determined by the jury under proper direction from the Judge. Opinion of counsel will not protect from an action for malicious prosecution unless the party uses reasonable care to ascertain the facts and lays them before counsel : Wilson v. The City of Winnipeg, 4 M. 1.. It. 193 (Man.). The falsity of a charge can- not give a cause of action against a magistrate who acts upon the assumption and belief of its truth; and an allegation that he acted without any just cause upon a false charge, but not charging malice means only that the charge being false he had no just cause: Sprung v. Anderson, 23 U. V. C. P. 152. ACTION FOR FALSI: IMPRISONMENT. The plaintiff must prove: 1. The fact of imprisonment; 2. That it was caused by the defendant; 3. The special damage, if any. ! [ON FOR 1' ILSE 1 M PR] 30NMENT. 445 In actions against magistrates, Judges, etc., the rule is, that if they do any act beyond the limit of their authority they thereby subject themselves to an action of trespass; but if t lie act done be within the limit of their authority, although it may be done through an erroneous or mistaken judgment, they are not thereby liable to such an action: Doswell v. Ttnpey, 1 B. »V; C. 169. See South wick v. llurc, 24 O. R. 528. Even where they exceed their jurisdiction they are not liable unless they kuow or have the means of knowing the defect of juris- diction. Actions against justices <<( the peace cannot be brought in the County Courl if the objection is taken, nor in a Division Court. See R. S. 0. 1897, c. 88, s. 16. 11. S. (>. ls'.tT. c. 88, "An Act to Protect Justices of the Peace and others from Vexatious Actions,'' extended to sheriffs, Ont. Stat- utes, 1899 c. 7. provides as follows: Section 1. — In an action for things done within the jurisdiction of a justice of the peace or a police magistrate, malice and want of probable cause must be alleged and proved. By section 20, if at the trial of the action the plaintiff does not prove : 1. That the action was brought within six months next after the act complained of was committed ; 2. That notice of action in writing was given one month before the action was commenced; 3. The cause of action stated in the notice: Kelly v. Barton, 26 O. R. 689; Scott v. Return, 25 O. R. 450. 4. That the cause of action arose in the county or district the county town of which is named in the statement of claim as the place of trial : 5. Where the plaintiff sues in a County, District or Division Court, that the cause of action arose within the county, district, or united counties for which such Court is holden. Then and in such case the plaintiff shall be nonsuited, or a verdict given for the defendant. By section 21, if the plaintiff is proved to have been actually guilty of the offence of which he was convicted, or that he was liable by law to pay the sum he was ordered to pay, or that he has undergone no greater punishment than the Legal punishment, he is entitled only to three cents damages and no costs of action, even if he proves his cause of action in other respects. By section 2."> eosts are allowed as between solicitor and client to a successful plaintiff or defendant in this action. 446 ACTION FOR FALSE IMPRISONMENT. By Ont. Statutes, 1909, o. 6. s. l."i, every bailiff or constable, and every coroner or elisor, guilty of misconduct in execution process, is liable. If a private person falsely and maliciously, and without any probable cause, puts the law in motion to cause the apprehension of another, it is properly the subject of an action for malicious prose- cution. A magistrate is liable in an action of damages to a person who has suffered imprisonment under a sentence pronounced by him in excess of jurisdiction, and in such an action it is not necessary to aver malice or want of probable cause : McCreadle v. Thomson (1907), S. C. 1176. At the trial of an action for false imprisonment, the Judge is not bound to put to the jury specific questions, such as, " Did the defendants take reasonable care to inform themselves as to the facts?" "Did the defendants honestly believe that the plaintiff was guilty of the offence for which he was arrested?" But may, with a proper charge, submit all the facts to the jury, leaving them to return a general verdict. 2. In charging the jury, the Judge should not suggest to them that they might put themselves in the plaintiff's place, and consider how much they ought in that case to be paid. But as no objection had been raised as to the damages allowed being excessive, the verdict should not be disturbed on that ground. 3. Evidence to prove the bad character of the plaintiff in such an ac- tion, was properly rejected at the trial: Newsman v. Carr, 2 Stark 69; Jones v. Stevens, 11 Price 235; and Downing v. Butcher, 2 Moo. & R. 374. followed. 4. The Judge's charge to the jury that it is necessary in such an action for the plaintiff to prove malice as well as want of reasonable and probable cause, was wrong ; but, although there was no evidence of malice except as it might have been inferred from the absence of reasonable and probable cause, the misdirection was not a ground for ordering a new trial, the verdict not having been attacked as excessive. 5. There is no ground for an action for malicious prosecution unless the acts complained of are the result of a complaint laid before a magistrate: Sinclair v. Ruddell, 16 Man. L. R. 53. In an action for false imprisonment, where the justice who issued the warrant acted wholly without jurisdiction, proof of malice or want of probable cause is unnecessary. A complaint in writing under oath for a search warrant under which a warrant was issued, and goods named therein were found in the possession of the accused, will not justify arrest, without further or other complaint. The expense to which a party complaining may have been put by an illegal arrest is a proper element of damages: Melanson v. Lavinge, 37 N. B. R. 539. db] 447 DEFENCE. The defendant m in justificatioa that an offence was committed for which a person might have been arrested without a warrant, and that there is reasonable and probable cans.- to Buspect that the plaintiff committed such an offence. A constable having reasonable cause to suspect that such an offence has 1 n committed is justified in arresting the party sus- pected, though it afterwards appear that no such offence has been committed. It is otherwise in the case of misdemeanour without a warrant, except in the case of a breach of the peace committed in his ice, or in the presence of someone else who gives the person committing into custody, there being a danger of renewal; but if there is no such danger, and the arrest is not the result of a continued pursuit, the arresl is unlawful. He is in no case justified in hand- cuffing a prisoner, unless it be necessary to prevent an escape, or an escape be attempted : Wright v. Court, 4 B. & C. 596. By 2! Ceo. II., c. 44. R. S. O. 1897, c. 32<>, no action shall be brought against any constable for anything done under a warrant unless after demand of sight and copy of warrant and refusal and Hnless commenced within six calendar months after the act com- mitted. In an action for false imprisonment the six months are to be reckoned exclusive of the day of the discharge of the prisoner: Hardy v. Byle, 1) B. & (\ 603. By Ont. Statutes, 1010, c. 34, sec. 49 (j), an action for false imprisonment must be brought within four years after such cause of action. By the last-mentioned statute, 21 Jac. I., c. 21, R. S. O. 1S97, c. 323, any action brought against any " mayor or bailiff of city or town corporate, head borough, portreeve constable, tithing man, churchwarden or overseer of the poor" for any matter done by virtue of their office, such action must be brought in the county where the offence was committed. The di fendant may plead the general issue and give his special matter in evidence. Evidence may be given in mitigation of damages where such evidence tends to shew reasonable grounds of suspicion. Disclosure of information: Humphny v. Archibald. 20 A. R. 2<">7. In an action for false imprisonment judgment cannot be entered upon answers to questions submitted to the jury, and a finding in inswer to a question of a certain amount of damages is not equi- valent to the general verdict which must be given them : Gordon V. Dauson, 22 A. R. 315. In an action for false imprisonment the defendant by notice justified under a justice's warrant. Held, that a verdict for the 448 A.CTION FOB ASSAULT AND BATTERY. plaintiff could not be sustained on the grounds that the proceedings before the justice were not bona fide, or that the defendant having improperly procured the warrant was estopped from setting it up as they had not been submitted to the jury: Thompson v. Mott, voL 32, 350 (N.B.). ACTION FOR ASSAULT AND BATTERY. An assault or battery must be an act done against the will of tbe party assaulted. The circumstances of time and place, when and where the assault was given, require different damages. Initiation proceedings: Kinver v. Phoenix. 7 O. R. 377; hand- cuffing: Gordon v. Denison, 22 A. R. 315. DEFENCE. There is no assault if tbe plaintiff consented to the defendant's act, or if the injury is the result entirely of a superior agency and is unavoidable, and the conduct of the defendant entirely without fault. The following are the main defences in this action. 1. That the plaintiff made the first assault, and the defendant's battery was in self-defence. 2. That the assault was committed in defence of possession. 3. Reasonable chastisement. 4. Process of law. ". ( 'onviction or certificate of dismissal under the provisions of Criminal Code relating to summary convictions. ACTION FOR TRESPASS TO PERSONAL PROPERTY. This action includes every direct forcible injury or act disturbing the possession of goods without the consent of the owner, however slight or temporary the act may be: see Rogers v. Devitt, 25 O. R. 84. Any possession is sufficient as against the third person who has no title at all. Property is sufficient without possession, for the right of property draws to it the possession: Balme v. Hutton, 9 Ling. 471. As to damages, the jury may consider not only the pecuniary damage sustained, but also the intention with which the act has been done, whether for insult or injury : Sears v. Lyons, 2 Stark. 318. Trespassing animals may be distrained for damage feasant for injuries to other animals as well as damage to the freehold: Bowden v. Roscoe (1894), 1 Q. B. 608. ACTION' FOB MESNE PB01 I 449 DEFENCE. Not guilty by statute. J> the possession, he may still maintain this action. Thus, where he has delivered the goods to a carrier or other bailee, and so parted with the actual possession, he may still maintain trover for a conversion by B Btranger; for the owner retains the possession in law as againsl a wrongdoer, and the carrier or other bailee is only his servant : Gordon v. //<.. 7 T. R. -42. With regard to the time at which the property | :i sale Property of goods, where goods are sold and nothing is said as to the time of P* ssm g delivery or of payment, and everything the seller has to do with them is complete, the property rests in the buyer, so as to subject him to the risk of any accident which may happen to the goods: Tallin;; v. Baxter, G B. & t_. 3G0. The seller is liable to deliver them whenever demanded upon pay- ment of the price, but the buyer has no right to have possession of the goods till he pays the price. If the goods are sold upon credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is immediately entitled to the possession, and the right of possession and the right of property vest at once in him; but his right of possession is not absolute ; it is liable to be defeated if he becomes insolvent before he obtains possession : Bloxam v. Zanders, 4 B. & C. 948. In the case of the sale of unascertained goods, until both parties have assented to the appropriation of some particular goods to satisfy the contract, the property in them does not pass: Dixson v. Yates, 5 B. & Ad. 313. But where an appropriation has been made by one party, in pursuance of an authority to make the election conferred by agree- ment, it becomes final and irrevocably binding on both parties : Aldridge V. Johnson, 7 E. & B. 885. In general, when goods are ordered to be made, so long as the order is not executed, but only in course of execution, no property passes to the person for whom they are to be made : Mtickloiv v. Mangles, 1 Taunt. 318. In order to pass the property there must in such cases be a completion and an acceptance, or at least an approval by the buyer: Atkinson v. Bell, S B. & C. 277. By a gift of goods the property does not pass unless the gift be by deed or instrument of gift, or be executed by an actual delivery of the thing given to the donee: Irons v. Fmallpiccr. 2 B. & A. 551. 456 ACTION FOR CONVERSION OF GOODS. A grant of goods not in existence, or not belonging to the grantor at the time of executing the deed of grant, was void at law until the grantor ratified the grant by some act done by him with that view after he had acquired the property therein: Lunn v. Thornton, 1 C. B. 379. In equity, however, a contract which engaged to transfer to a purchaser or mortgagee property of which the vendor or mortgagor was not possessed at the time transferred the beneficial interest immediately on the property being acquired by him : Holroyd v. Marshall, 10 II. L. C. 191. On this point equity now rules under the Judicature Act. SlStute f In an acticm claiming damages for the conversion of goods Fraud*. tne plaintiff must prove an unquestionable title in himself, and if it appears that such title is based on a contract, the defendant may successfully urge that such contract is void under tne Statute of Frauds, though no such defence is pleaded. It is only where the action is between the parties to the contract, which one of them seeks to enforce against the other, that the defendant must plead the Statute of Frauds if he wishes to avail himself of it. Judgment appealed from (32 N. S. Rep. 549), affirmed: Kent y. Ellis, 31 S. C. R. 110. Sawing up logs, of which the defendant is a tenant in com- mon, and mixing the deals with others so that they cannot be distin- guished, is evidence of conversion by one tenant in common against the other: McKay v. Crocker, 5 All. 20 (N.B.). Where the plaintiff has the immediate right to the possession of goods, the proper measure of damages in an action against the sheriff for wrongful taking them is the value of the goods at the time of the conversion, though they were taken under an execution against a person who had performed labour upon them, and for which the plaintiff would be bound to account to such person : Rankin v. Mitchell, 1 Han. 499. ■ A - UC * K !'•, An auctioneer, who at the instance and on the premises of the •er, li.'ihil- r ityof. mortgagor, sells at auction in the ordinary course the goods in a chattel mortgage valid and in full force as regards the parties to it, and delivers possession of the goods to the purchaser, is liable to the mortgagee for conversion of the goods, although the mortgage may be void as regards creditors of the mortgagor or subsequent purchasers for value. Cochrane V. Rymill, 27 A. R. 770, 40 L. T. N. S. 744, followed. National Bank v. Rymill, 44 L. T. N. S. 767, and Barber V. Furlong (1891), 2 Ch. 172, distinguished: Johnstone v. Henderson, 28 O. k. 2.1. An auctioneer is not bound to accept all bids as a matter of course from persons present at his auction. An action, therefore, will not lie for refusing to accept such bids unless by reason of some special condition or terms of the sale : Holder v. Jackson, 1 1 T". C. C. P. 543. A. employed auctioneers to sell her furniture by auction at her house. She had previously given a bill I 1IAUDULENT TIU I ill. 457 of sale to B., of which the auctioneer had no notice. The auction- eers sold the furniture and delivered it to the purchaser. B. brought trover against the auctioneers: Held, thai they were liable for • version: Consolidated Co. v. Curtis (1892), 1 Q. B. 495. The possessor of land is generally entitled as against the finder Finder, to chattels found on the land. The defendant while cleaning out under nR ' ,ts ° ■ the plaintiff's orders a pool of water under their land found two rings. He declined to deliver them to the plaintiff, but failed to dis- cover the real owner. In an action of detinue : Held, that the plain- - enti led to the rings: Stratford Water Co. v. shannon (189G), 2 Q. B. 44. The patent to A. C. in 1796 contained the clause then usual, saving and reserving to the Crown all white pine trees : Held, that notwithstanding this reservation the plaintiff claiming under the pat- entee could maintain trover against defendant for the white pine, for the soil in which they grew was his and he was entitled to their 6hade as against a stranger : Casselman v. Hersey, 32 U. C. R. 333. By a fraudulent or illegal sale or transfer of goods no property passes : Wilkinson v. King, 2 Camp. 335. But when a vendee obtains possession of a chattel with the in- Fraudu- tention bv the vendor to transfer both the property and the pos- lent trans- fer, session, although the vendee has committed a false and fraudulent representation in order to effect the contract or obtain the possession, the property vests in the vendee until the vendor has done some act to disaffirm the transaction: Kingsford v. Merry, 11 Ex. 577. By the common law an agent entrusted with goods cannot convey to a stranger a better right than he himself possesses. No antecedent debt due to any agent authorizes any lien or pledge Pcwer of in respect of that debt, nor does it authorize the agent to deviate ' from any express orders or authority received from his principal. Contracts are valid when made bona fide and without notice that the agent making them has no authority, or that he is acting mala fide against the owner of the goods. The owner of the goods may redeem them if they have been pledged by an agent at any time before sale upon repayment of the amount of the lien, or upon restoration of the securities in respect of which the lien exists. In case of the insol- vency of the agent and the redemption of the goods by the owner, the latter becomes a creditor of the agent for the value of the goods pledged and may prove for or set off the amount paid, or the value of the goods as the case may be. Where an agent does an act outside of the apparent scope of his authority, and makes a representation to the person with whom he acts to advance the private ends of himself or some one else other than his principal, such representation cannot be called that of the principal. In such a case it is immaterial whether or not the per- 458 ACTION FOR CONVERSION OF GOODS. son to whom the representation was made believed the agent had authority to make it. The local manager of a bank having received a draft to be accepted, induced the drawer to accept by representing that certain goods of his own were held by the bank as security for the drafts. In an action on the draft against the acceptor: Held, that the bank was not bound by such representation ; that by tak- ing the benefit of the acceptance it could not be said to adopt what the manager said in procuring it, which would burden it with respon- sibility instead of conferring a benefit ; and that the knowledge of the manager, with which the bank would be affected, should be con- fined to knowledge of what was material to the transaction, and the duty of the manager to make known to the bank : Richards v. Bank of Nova Scotia, 26 S. C. R. 381. Dealings In order to facilitate the dealing of agents entrusted with goods by agents, it Qag been prov i^ e d Ontario Statutes, 1910, c. 66, that an agent en- statute as to. trusted with the possession of goods or with documents of title thereto is deemed the owner for the following purposes, that is to say : Mercantile " Mercantile agent " means a mercantile agent having in the agent. customary course of his business as such agent, authority either to sell goods or to consign goods for the purpose of sale, or to buy goods or to raise money on the security of goods. Pledge. " Pledge " includes any contract pledging or giving a lien or security on goods, whether in consideration of an original advance, or of any further or continuing advance, or of any pecuniary liability. By section 16, this Act came into force on and after 1st Septem- ber, 1910. The following cases must therefore be read subject to this chapter 66. The Act is as follows : Possession (2) A person shall be deemed to be in possession of goods or of the documents of title to goods where the goods or documents are in his actual custody or are held by any other person subject to his control or for him on his behalf. DISPOSITIONS BY MERCANTILE AGENTS. Powers of 3. — (1) Where a mercantile agent is, with the consent of the "e^ntasto owner > in possession of goods or of the documents of title to goods, disposition any sale, pledge or other disposition of the goods, made by him when of goods. aC fj n <, i n t ne ordinary course of business of a mercantile agent, shall, subject to the provisions of this Act, be as valid as if he were ex- pressly authorized by the owner of the goods to make the same ; provided that the person taking under the disposition acts in good faith, and has not at the time thereof notice that the person making the disposition has not authority to make the same. MERCANTILE A.GE 459 (2) Where a mercantile agent has, with the conaenl of th( l: s owner, been in possession <>f goods or of documenls of tit!'' to goods, on °* ' r consent any sale, pledge or other disposition which would have been valid if the consent had continued, shall be valid notwithstanding the deter- mination of the consent; provided that in taking under the disposition acts in good faith, and has not at the liuic thereof notice that the consent has been determined. (3) Where a mercantile agent has obtained possi ssion of any Deriva- documents of title to goods by reason of his being or having been, ment8 with the consent of the owner, in possession of the goods represented thereby, or of any other documents of title to the goods, his posses- sion of the first mentioned documents shall, for the purposes of this Act, be deemed to be with the consent of the owner. (4) For the purposes of this Act the consent of the owner shall Presump- be presumed in the absence of evidence to the contrary. tion. 4. A pledge by a mercantile agent of the documents of title to Effect of goods shall be deemed to be a pledge of the goods. doe" 5. Where a mercantile agent pledges goods as security for a debt ,„ , ' Pledge for due from or liability incurred by the pledgor to the pledgee before antecedent the time of the pledge, the pledgee shall acquire no further right to debt. the goods than could have been enforced by the pledgor at the time of the pledge. 6. The consideration necessary for the validity of a sale, pledge Rights ao or other disposition of goods by a mercantile agent, in pursuance of g U 'u? this Act, may be either a payment in cash, or the delivery or transfer of goods or of other goods, or of a document of title to goods, or of a negotiable document 8 security or any other valuable consideration ; but where goods are pledged by a mercantile agent in consideration of the delivery or trans- fer of other goods, or of a document of title to goods, or of a nego- tiable security or of other valuable consideration, the pledgee shall acquire no right or interest in the goods so pledged in excess of the value of the goods, document, security or other valuable considera- tion when so delivered or transferred in exchange. 7. For the purposes of this Act an agreement made with a Agree- mercantile agent through a clerk or other person authorized in the through ordinary course of business to make contracts of sale or pledge on clerks, , to. his behalf shall be deemed to be an agreement with the agent. 8. — (1) Where the owner of goods has given possession of the Provision! goods to another person for the purpose of consignment or sale, or ^JunV" has shipped the goods in the name of another person, and the con- and con- signee of the goods has not had notice that such person is not the bl o" ees - owner of the goods, the consignee shall, in respect of advances made in good faith to or for the use of such person, have the same lien on 460 ACTION FOR CONVERSION OP GOODS. the goods as if such person were the owner of the goods, and may transfer any such lion to another person. (2) Nothing in this section shall limit or affect the validity of any sale, pledge or disposition by a mercantile agent. DISPOSITION BY SELLEBS AND BUYERS OF GOODS. Disposi- 9. Where a person having sold goods continues or is in posses- seller re- s ' on °f ^he S ooas or °f the documents of title to the goods, the maining in delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge or other disposition thereof, or under any agreement for sale, pledge or other disposition thereof to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same. Disposi- 10.— (1) Where a person, having bought or agreed to buy goods, buv*r obtains with the consent of the seller possession of the goods or of retaining the documents of title to the goods, the delivery or transfer by that pos jssion. p erson or jjy a mercantile agent acting for him, of the goods or documents of title, under any sale, pledge or other disposition thereof, or under any agreement for sale, pledge or other disposition thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner. Exception (2) This section shall not apply to goods the possession of which tracts un- are obtained under a contract coming within the meaning of The der the Conditional Sales Act where the seller has complied with the provi- Sonai" Bions of that Act Sales Act. \\ t Subject to the provisions of this Act the unpaid seller's vi right of lien or retention or stoppage in transitu shall not be affected sub-sale or * a pledge by by any sale or other disposition of the goods which the buyer may buyer. have made unless the seller has assented thereto ; Provided that where Imp. Act 6C and 57 a document of title to goods has been lawfully transferred to any per- 47° ^' son as buyer or owner of the goods and that person transfers the document to a person who takes the same in good faith and for valuable consideration, then if such last mentioned transfer was by way of sale the unpaid seller's right of lien or retention or stoppage in transitu shall be defeated; and if such last mentioned transfer was by way of pledge or other disposition for value the unpaid seller's right of lien or retention or stoppage in transitu can only be exercised subject to the rights of the transferee. MERCANTILE 461 SUPPLEMENTAL. 12. For the purposes of this Act the transfer of a document of Mode of title may be by endorsement, or where the document is by custom or n " lh y r - rmg doou- by its express terms, transferable by delivery, or makes the goods men! deliverable to the bearer, then by delivery. J' M I'- f\ c ' 52 and 53 13. — (1) Nothing in this Act shall authorize an agent to exceed V. & 45, u 11 or depart from his authority as between himself and his principal, or exempt him from any liability for so doing. (2) Nothing in this Act shall prevent the owner of goods from Saving for recovering them from his agent at any time before the sale or pledge £j° e oyrn . thereof, or shall prevent the owner of goods pledged by an agent from er. Idem. s 12 having the right to redeem the goods at any time before the sale " thereof, on satisfying the claim for which the goods were pledged, and paying to the agent, if by him required, any money in respect of which the agent would by law be entitled to retain the goods or the documents of title thereto, or any of them, by way of lien as against the owner, or from recovering from any person with whom the goods have been pledged any balance of money remaining in his hands as the produce of the sale of the goods after deducting the amount of his lien. (3) Nothing in this Act shall prevent the owner of goods sold by an agent from recovering from the buyer the price agreed to be paid for the same, or any part of that price, subject to any right of 6et off on the part of the buyer against the agent. 14. The provisions of this Act shall be construed in amplifica- (Saving for tion and not in derogation of the powers exercisable by an agent co mn " ,n law i" iwera independently of this Act. of agents. A factor has no lien on goods assigned to him until they actually come into his possession: Clark v Great Western Railroad Co., 8 U. C. C. P. 191. If stolen goods are sold, the property is divested out of the owner. A summary mode of recovery is provided of stolen property after trial. Where a horse was stolen from plaintiff, and bought by defend- ant, at public auction, but not in market overt, and the plaintiff afterwards seeing the horse took possession of it, and defendant im- mediately retook it: Held, that the plaintiff had a right to retake it, no property having passe.] to defendant by the sale; and that al- though it was in his possession only for a moment, yet the property revested in him, and he could maintain trespass against defendant for the retaking: Bowman v. Yielding. M. T. 3 Vict. The word "agent,"' referred to in It. S. O. 1S97. c. 150, "An Act respecting contracts in relation to goods entrusted to agents," 462 ACTION FOR CONVERSION OF GOODS. means one who is entrusted with the possession as agent in a mer- cantile transaction for the sale or for an object connected with the sale of the property. And an agent who has obtained possession of certain lumber from the master of a vessel, without authority from the owner, was : Held, not to have been entrusted with the posses- sion, and that the owner was entitled to recover the value of the lumber from a bona fide purchaser from the agent who had paid the agent : Moshicr v. Keenan, 31 O R. 658. See also Bush v. Fry, 12 O. It. 122. When an agent purchases goods for his principal with money supplied by the latter, there is a trust impressed upon the goods in the principal's favour, and this trust is enforceable against the agent's assignee for the benefit of creditors, even though the agent has while purchasing for the principal also purchased goods of the same kind for himself, and has not set aside specific portions of the goods to answer the principal's claim. Harris v. Trueman, 9 Q. B. D. 264, applied : Long v. Carter, 23 A. R. 121. See the next case. If an agent is intrusted by his principal with money to buy goods, the money will be considered trust funds in his hands, and the principal has the same interest in the goods when bought as he had in the funds producing it. If the goods so bought are mixed with those of the agent the principal has an equitable title to a quan- tity to be taken from the mass equivalent to the portion of the money advanced which has been used in the purchase, as well as to the unexpended balance. Affirming the previous case: Carter v. Long, 26 S. C. R. 430. The property in a bank note, like that in cash, passes by delivery, and the party taking it bona fide and for value is entitled at common law to retain it as against the former owner from whom it has been stolen : Miller v. Race, 1 Burr. 452. The same rule applies to negotiable instruments. An instrument in the form of a promissory note given for part of the price of an article with the added condition "that the title and right to the possession of the property for which this note is given shall remain in (the vendors) until this note is paid," is not a promissory note or negotiable instrument, and the holder thereof takes it subject to any defence available to the maker against the vendors : Dominion Bank v. Wiggins, 21 A. R. 275. By statute 21 Jac. I., c. 16, s. 3, Ont. Stats,, 1910, c. 34, s. 49 (g), this action must be brought within six years after the cause of action arose. At common law the goods of an execution debtor are bound by a writ of execution from the time of tests; but by the Statute of Frauds, 29 Car. II., c. 3, s. 16, R. S. O. 1897, c. 338, p. 12, the goods pixtub] 463 are only bound from the time of the delivery of the writ to the sheriff. If the plaintiff wishes to claim by virtue of a special property, he must prove it. Where the action is brought against a mere wrongdoer, it will be sufficient for the plaintiff to shew that he was in <>u of the property : Jeffries v. G. 11 . Ry. Co., 5 E. & B. 802. The plaintiff must skew tliat he has a right to the immediate possession of the goods in order to recover in this action. The reversioner or person entitled to the freehold of lands on lease may sue in this action for fixtures after severance from the demised land. Shop fittings consisting of shelving made in sections, each section being screwed to a bracket affixed to the wall of a building, the whole being readily removable without damage either to the fittings or the building, and gas and electric light fittings consisting of chandeliers which were fastened by being screwed or attached in the ordinary way to the pipes or wires by which the gas and electric currents were respectively conveyed, and were removable by being unscrewed or detached without doing damage either to the chandeliers or the building, were placed in it by the owner of the freehold land on which it stood : Held, that these articles became part of the land and passed by a conveyance of it to the defendants : Bain v. Brand, 1 App. Cas. 702; Holland v. Hodgson, L. R. 7 C. P. 328; Hobson v. Gorringe, 1897, 1 Ch. 182; Haggart v. Town of Brampton, 28 S. C. R. 174. and Argles v. McMath, 20 O. R. at p. 248, followed: Stack v. T. Katun Co., 4 O. L. II. 335. The purpose to which premises have been applied should be re- garded in deciding what may have been the object of the annexation of movable articles in permanent structures with a view to ascertain- ing whether or not they thereby became fixtures incorporated with the freehold, and where articles have been only slightly fixed, but in a manner appropriate to their use, and shewing an intention of permanently affixing them with the object of enhancing the value of mortgaged premises, or of improving their usefulness for the pur- poses to which they have been applied, there should be sufficient ground in a dispute between a mortgagor and his mortgagee for concluding that both as to the degree and object of the annexation, they became parts of the realty: Haggart v. Town of Brampton, 28 S. C. R. 174. The " fixtures " included in the meaning of the expression " per- sonal chattels" by the tenth section of the Nova Scotia "Bill of Sale Act" are only such articles as are not made a permanent portion of 464 ACTION FOR CONVERSION OF GOODS. the land, and may be passed from hand to hand without reference to or in any way affecting the land and the " delivery " referred to in the same clause means only such delivery as can be made without a trespass or a tortious act : Warner y. Don, 26 S. C. R. 388. A gas engine laid on a raised bed of concrete and fastened into the ground is a fixture, and is therefore not distrainable by the land- lord or tenant: Hobson v. Qorringc (66 L. J. Ch. 114; (1897), 1 Ch. 182) ; and Reynolds v. Ashby & Son (72 L. J. K. B. 51 ; (1903), 1 K. B. 87) followed. Hellatvell v Eastwood (20 L. J. Ex. 154; 6 Ex. 295), not followed. Crossley v. Lee, 77 L. J. K. B. 199; (1908), 1 K. J. 86; 97 L. T. 850. Glass Houses — Market Garden : Mears v. Cullender, 70 L. J. Ch. 621; (1901), 2 Ch. 388; 84 L. T. 618; 49 W. R. 584; 65 J. P. 615. Fixtures : Kilpatrick V. Stone, 13 W. L. R. 634. Furnace cannot be moved by mortgagor : Scottish American V. Sexton, 26 O. R. 77. Furnace purchased on an agreement that the property in it should remain in the vendor until paid for, ceases to be a chattel when the purchaser annexes it to the freehold. Such an agreement merely confers a license on the vendor to enter and sever from the freehold what is not longer a chattel so as to again make it a chattel. A purchaser of the realty without notice of the agreement is not bound by it, nor can the vendor recover possession of the chattel or damages for its conversion from the purchaser : Hobson v. Oor- ringe (1897), 1 Ch. 182, and Reynolds v. Ashby (1904), A. C. 466, followed. Waterous v. Henry (1884), 2 Man. L. R. 169, and Vulcan Iron v. Rapid City (1894), 9 Man. L. R. 577, overruled. Andrews V. Brown (1909), 19 Man. L. R. 4 ; 11 W. L. R. 149. The principle which, as between tenant and landlord, enables the former to remove during his term chattels which he has affixed to the soil for the benefit of his trade applies also to the case of tenant for life and remainderman, and allows the former, or his per- sonal representatives, to remove chattels affixed to improve the estate for his own enjoyment: Hulsc, In re; Beattie v. Hulse, 74 L. J. Ch. 246; (1905), 1 Ch. 406; 92 L. T. 232. The exception of ornamental fixtures from the rule Quicquid plantatur solo, solo cedit applies as well between tenant for life and remainderman as between tenant and landlord : De Falbe, In re; Ward v. Taylor, 70 L. J. Ch. 2S6 ; (1901), 1 Ch. 523; 84 L. T. 273 ; 94 W. It. 455. The two principles, that where an object is so attached to the house as to become part thereof it goes to the heir ; and where from its nature and purpose it is clearly not intended to form part of the LIABILITY OF BAILEE. Hi. realty, but is only attached thereto for the purpose of enjoyment dur- ing the occupancy of its owner, ii is removable and goes to the execu- tor — have been established from the earliest times and are si ill in force. These principles govern all cases of fixtures, whether between landlord and tenant for life and remainderman : and any apparent change in the law is not in the principles themselves, but arises from their application under altered conditions of life and habits: Leigh v. Taylor, 71 L. J. Ch. 272; (1902), A. C. 157; SG L. T. 239; 50 W. R. C23. A bailee who. by reason of the loss of the article deposited, is not in a position to restore it, is bound to pay the value to the bailor, but he is not responsible for the loss of profits which the latter might have derived from the article: Qignao v. Woodbum, Q. R. 29 S. C. 431. Where a bailee accepts a bailment and undertakes to redeliver to his bailor, but is evicted by title paramount, he is not liable unless there is a special contract, or he is in some way to blame for the loss responsible to the bailor for injury suffered by the latter: Ross v. Edwards, 11 o. K. 574. In the case of a gratuitous loan, all the increase and offspring of the loan, and everything accessioual to it (in this case a pair of mares, i Efspring of a mare loaned, and portion of a set of harness acquired as payment for the use of oxen), belong to the lender, and must be returned at the determination of the loan, and are not sub- jecl to seizure under execution against the bailee: Dillarec v. Doyle, 43 U. C. R. 412. As against their principal a country attorney, town agents have a general lien upon all documents, money, and articles coming into their hands in the course of their agency business, without regard to the purpose for which they were received: Re A. B. d- C, 14 C. L. J. 142. The lien upon a fund recovered extends only to the costs incurred in the particular suit or proceeding, and not to the attorney's general costs against the client in other matters: Cana- dian Hank of Commerce v. Crouch, 8 I'. It. 4.".7. Where a consign- ment of goods has Deen sold and they remain no longer in specie, the only recourse by a person who claims an interest therein is by an ordinary action for debt, and he cannot claim any lien upon the r on the price received for them : Dingwall v. McBcan, 30 S. C. It. 441. Held, following Porter v. Flintoft, G U. C. C. P. 335, and Ruttan v. Beamish, 10 U. C. C. 1'. 90, that an action will not lie at the suit of the ir of chattels against the mortgagee for seizure of the chatt faull in payment, where there is- no proviso K.E.- 4(36 ACTION FOR CONVERSION. in the mortgage for possession until default, and that even if an action would lie the jury should be told that the plaintiff could re- cover only to the extent of his interest in the goods, and for dam- age done to such interest, instead of, as in this case, for their full value as in the case of a wrong-doer: McAulcy v. Allen, 20 U. C. C. P. 417. In a chattel mortgage containing no redemise clause there may be an implied contract that the mortgagor shall remain in posses- sion until default of equal efficacy with an express clause to that effect ; and such an implied contract arises from the nature of the instrument unless it be very expressly excluded by its terms : Porter v. Flintoff (6 U. C. C. P. 335), distinguished. In a chat- tel mortgage of the stock-in-trade and business effects of a trader, there was a proviso to the effect that if the mortgagor should attempt to sell or dispose of the said goods the mortgagee might take posses- sion of the same as in case of default of payment : Held, that this proviso only prohibited the sale of the goods other than in the ordinary course of business: Dedrick v. Ashdoun, 2.~> S. C R. 227. Trover is maintainable by the owner of property where a third party to whom the owner has given the use of the property has sold it without authority. The rule is that where there has been a misuser of the thing lent there is an end of the bailment, and trover is maintainable: Sibley V. Sibley, 2 N. S. D. 325 (N.S.). A partner entrusted with possession of goods of his firm for the purpose of sale, may, either as partner in the business, or as a factor for the firm, pledge them for advances made to him personally ; and the lien of the pledgee will remain as valid as if the security had been given by the absolute owner of the goods, notwithstanding notice that the contract was with an agent only: Dingwall v. McBean, 30 S. C. R. 441. The purchaser of the stock of a trader where the change of owner- ship is open and notorious may employ the former owner as a clerk in carrying on the business, and notwithstanding such hiring there may be " an actual and continued change of possession " as required by R. S. O. (1877), c. 119, s. 5. Ontario Bank v. Wilcox (43 U. C. It. 400), distinguished: Kinlock v. Scribner, 14 S. C. R. 77. In an action charging a person as executor de son tort by meddling with the goods of the deceased, a declaration of the deceased while in possession that the goods did not belong to him is evidence for the defendant: Powell v. Wathcn, 5 All. 25S (N.B.). If the Court can trace money or properly, however obtained from the true owner into any shape, it will secure it for the true owner by holding it to be his in equity, or by giving him a lien on it: Merchants' Go. v. Morion, 15 Chy. 274. A factor has no lien on goods consigned to him until they actually come into his INNKEEPER — LIEN OF. -ion: Clark v. Qreai Western R. W. Co., 8 U. C. C. P. 191. Quaere, as to a farrier's righl of lien on a horse for aervi sred: Ificolls v. Duncan, 11 l'. C. B. :;:;-. The sheriff has no lien or claim on the goods seized for his fees: In n Ross, '■'. P. K. 394. Lien of persons who had granted warehouse receipts for coal under a special agreement that any coal taken out by the receipt-holders should be ced: See Re Colvmun, 36 D. C. R. ">."">'.). There is nothing in the Mechanics' Lien A cl to indicate that it was intended to be operative to a greater extent, than as giving a statutory lien issuing in process of execution of efficacy, equal to, but not greater, than that possessed by the ordinary writs of execution. A mechanics' lien is not analo- gous to the vendor's lien : King v. Alford, 9 O. R. G43. An innkeeper and a livery stable keeper have a lien under R. S. O. 1897, c. 1ST, which, as amended in 1904 and 1907, enacts as follows : — -. (1) Every innkeeper, boarding-house keeper and lodging-house Lien on keeper shall have a lien on the baggage and property of his guest, ^ e ^' boarder or lodger, for the value or price of any food or accommodation accommo- furnished to such guest, boarder or lodger, and, in addition to all other dation, etc . fur- remedies provided by law, shall have the right, in case the same re- n i„hed, mains unpaid for three months, I" sell by public auction the baggage and power , , • • , . to -ell. and property of such guest, boarder or lodger, on giving one weeks notice by advertisement in a newspaper published in the municipality in which the inn, boarding-house or lodging-house is situate, or in case there is no newspaper published in the municipality, in a newspaper published nearest to such inn, boarding-house or lodging-house, of the intended sale, stating the name of the guest, boarder or lodger, the amount of his indebtedness, the time and place of sale, and the name of the auctioneer, and giving a description of the ba or other property to be sold; and after the sale, the innkeeper, bnnrding-house keeper, or lodging-house keeper, may apply the proceeds of the sale in payment of the amount due to him, and the cost of such advertis- ing and sale, and shall pay over the surplus (if any) to the person entitled thereto, on application being made to him therefor. (la) Every keeper of a livery stable or boarding stable Bhall • have a lien on every horse boarded at or vehicle left in such livery ^.^ stable or boarding stable, for bis reasonable charges for boarding or earing for such horse or vehicle, and may enforce such lien by sale in the manner and subject to the conditions prescribed in sub-section 2 hereof. (2) Where an innkeeper, boardinjr-h" r, lodcing-house Lien on keeper or livery-stable keeper, has by law a lien \ipon a horse or ,,. ( T .~ n( ^ other animal for the price or value of any food or accommodation powi supplied to such animal, or for care or labour bestowed thereon, he * el1- shall, in addition to all other remedies provided by law, have the 46* ACTION FOR CONVERSION. Liens on chattels. Defini- tions. Ware- house re- ceipt. Bill of right in case any part of such price or value remains unpaid for the space of two weeks to sell by public auction such horse or other animal on giving two weeks' notice by advertisement in a newspaper published in the municipality in which the inn, boarding-house, lodg- ing-house or livery stable is situate, or in case there is no news- paper published in the municipality, in a newspaper published nearest to such inn, boarding-house, lodging-house or livery stable, of the intended sale, stating (if known) the name of the person or persons who brought such horse or other animal to the inn, boarding-house, lodging-house or livery stable, the amount of the indebtedness, and the name of the auctioneer, and giving a description of the horse or other animal, and after the sale, the innkeeper, boarding-house keeper, lodging-house keeper or livery stable keeper may apply the proceeds thereof in payment of the amount due to him in respect of food or accommodation supplied, or care or labour bestowed as aforesaid, and the costs of such advertisement and sale, and shall pay over the surplus, if any, to the person entitled thereto on application being made by him therefor. By Ont. Stats. 1910. c. 69, s. 50, every mechanic or other person who has bestowed money or skill and materials on a chattel may sell the chattel if. after three months, payment is not made. The Banking Act, R. S. C, c. 29, contains the following defini- tions : — Section 2, Interpretation : — iff) "Warehouse receipt" (1) Means any receipt given by any person for any goods, wares or merchandise in his actual, visible and continued possession as bailee thereof in good faith, and not of his own property ; and C2) Includes receipts given by any person who is the owner or keeper of a harbour, cove, pond, wharf, yard, warehouse, shed, storehouse, or other place for the storage of goods, wares or mer- chandise for goods, wares and merchandise, delivered to him as bailee and actually in the place or in one or more of the places owned or kept by him, whether such person is engaged in other business or not, and ; (3) Includes also receipts given by any person in charge of logs or timber in transit from timber limits or other lands to the place of destination of such logs or timber ; (h) "Bill of lading" includes all receipts for goods, wares or merchandise, accompanied by an undertaking to transport the samf from the place where they were received to some other place, by anj mode of carriage whatever, whether by land or water or partly bj land and partly by water. WABEHOUSE RECEIPTS AND BILLS OF LADING. 169 The same Acl also provides as follows: — SG. The bank may acquire and hold any warehouse receipl or bill Wi of lading as collateral security for the pay lenl of any debt lucurred in its favour, or as security for any liability incurred by il for anj person in the course of its banking busin 2. Any warehouse receipt or bill of lading so acquired shall vest in the bank from the date of the acquisition the] (a) All the right and title to such warehouse receipl or bill of Effi lading and to the goods covered thereby of the previous holder or t: 'k ,n ff- owner (hereof ; or (h) All the righl and title to the goods, wares and merchandise mentioned therein of the person from whom the same were received or acquired by the bank, if the warehouse receipt or bill of lading is made directly in favour of the bank, instead of to the previous holder or owner of such goods, wares and merchai S7. If the previous holder of such warehouse receipt or bill of When pre- lading is any person:- gg" (a) Entrusted with the possession of the goods, wares and mer- an agent, chandise mentioned therein by or by (he authority of the owner thereof, or (b) To whom such goods, wares and merchandise are by or by the authority of the owner thereof consigned ; or (c) Who by, or by the authority of the owner of such goods, wares and merchandise, is possessed of any bill of lading, receipt. order or other document covering the same such as is used in the course of business as proof of the possession or control of goods, landise or as authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of such a docu- ment to transfer or receive the goods, wares or merchandise thereby represented: the bank shall be. upon Hie acquisition of such ware- house receipt or bill of lading, ith all the right and title of the owner of su I id merchandise, subject to the right of the owner to have the ansferred to him if the debt or li- ability as security for which such warehouse receipt or bill of lad- ing is hold by the bank, is paid. 2. Any person shall be deemed to be the possessor of such goods, Presump- wares and merchandise, bill of lading, receipt, order or other docu- '^^^j ,, n ment as aforesaid: — (a) Who is in actual possession thereof; or (6) For whi ire held by any person. 90. The bank shall nor acquire or hold any warehouse receipt or bill of lading, or i urity as aforesaid, to secure the pay- 470 ACTION FOR CONVERSION. which the bank may take security. Proviso. Exchang- ing of warehouse recei | bill of lad- ing and ment of any bill, note, debt, or liability, unless such bill, note, debt or liability is negotiated or contracted: — (a) At the time of the acquisition thereof by the bank, or (&) Upon the written promise or agreement that such warehouse receipt or bill of lading or security would be given to the bank ; Provided that such bill, note, debt or liability may be renewed or the time for the payment thereof extended without affecting any such security. 2. The bank may : — (a) On the shipment of any goods, wares and merchandise for which it holds a warehouse receipt, or any such security as afore- said, surrender such receipt or security and receive a bill of lading in exchange therefor, or (&) On the receipt of any goods, wares and merchandise for which it holds a bill of lading, or any such security as aforesaid, sur- render such bill of lading or security, store the goods, wares and merchandise, and take a warehouse receipt therefor, or ship the goods, wares and merchandise, or part of them, and take another bill of lading therefor. General lien, how proved. DEFENCE. A lien on the goods, either general or particular, and a right to the possession of them until the claim is satisfied, is a defence. A general lien may be proved either by evidence of an express agreement, or of the mode of dealing between the parties, or of the general usage of other persons engaged in the same employment of such notoriety as that it may be fairly presumed to have been known to the owner of the goods : Rushforth v. Hadfield, 6 East 626. The doctrine of the vendor's lien for unpaid purchase-money extends to pure personal estate : Davies v. Thomas (69 L. J. Ch. 643, 645; (1900), 2 Ch. 462, 468), followed. Stucley, in re; Stucley v. Eeketvich, 75 L. J. Ch. 58; (1906), 1 Ch. 67; 93 L. T. 718; 54 W. R. 256 ; 22 T. L. R. 33. The vendor of goods not sold upon credit has a lien for the price. This lien is not lost so long as he keeps possession of the goods as vendor only, even though he has parted with a document trans- ferring a title to the goods : Imperial Land v. Docks Co., 5 Chy. D. 195. In general a lien cannot arise at law unless the party claiming it has possession of the goods: Kinloch v. Craig, 3 T. R. 119. There may be an equitable lien without possession : Mackreth v. tiymmons, 15 Ves. 329. Stoppage in transitu is in the nature of an equitable lien. DITI0NA1 8ALE8 OT 0HATTEL8. 471 In general every unpaid vendor of goods has a right, on the insolvency of the vendee, to stop the goods if still on their way to the vendee. The most usual way in which the right of a vendor to stop goods in transitu is defeated i ning the bill of lading to lona fide assigi : Lickborroto v. Mason, 2 Stoppage in transitu does not rescind a contract on the sale of goods, but merely gives the vendor a lien on > : eir price: Brasscrt v. McEwen, 10 (). It. 179. In general, where a person bestows his labour upon a particular chattel d livered to him in the course of his business, he has a lien upon such chattel for the amount of his charge. By R. S. O. 1897, c. 149, an Act respecting Conditional Sales of Condi- Chattels, as amended in 1003, 1904 and 1900, it has been enacted that tioni every manufacturer, bailor or vendor, must in answer to an enquiry f acturc "f made by any proposed purchaser or other person interested within five chut; furnish full information respecting the balance and state of ac- count. In case of refusal or neglect he is liable to a fine of not ex- ceeding $50. If there has been a breach in condition by a purchaser, and the article lias been seized by the manufacturer, the latter must retain it for twenty days, and the purchaser or his successor in interest may redeem it on payment of the arrears with interest and costs and expenses of taking possession. If the goods or chattels nave been sold originally for a greater sum than $30, and have been taken possession of, they cannot be sold without five days' notice of the intended sale, first giving to the bailee or his successor any interest. This five days, and the seven days mentioned in the last paragraph, may be part of the twenty days during which the manu- facturer must retain the article. Chattels mentioned in any receipt, note, hire receipt, order or other instrument are excepted from the Act where the manufacturer, or vendor, within ten days from the execution of the document evidencing the transaction, files with the clerk of the County Court in which the bailee or purchaser resides at the time of the bailment or purchase, a copy of the document ing the transaction. Within 20 days after the execution of the instrument a copy of the document must also be left with the bailee or conditional purchaser. Where any goods or chattels which are subject to the provisions of said Act respecting conditional sale of chattels are affixed to any realty without the consent in writing to the owner of the goods and chattels, those goods and chattels remain subject to the Act. but the owner of the realty, or any purchaser or mortgagee has the right as against the manufacturer of the goods to retain them upon payment of the amount due and owing thereon.* * See section ?,Ct of Registry Act — cl Ontario S; 1!>10 — also section I! 1 - as to > r ' instrument. 472 ACTION FOR CONVERSION. Wood- In the Districts of Muskoka, Parry Sound, Nipissing, Algoma, man a lien Manitoulin, Thunder Bay and Kainy River, and in the provisional IOr \\*i\£TGS. county of Haliburton, any person having performed any labour in connection with logs or timber, has by R. S. O. 1897, c. 154, a lien thereon for the amount due. This lien is a first charge, and has precedence over all other liens except any claim of the Crown or of any timber slide company. No sale or transfer of the logs or timber in any way affects the lien. A claim must be filed in the office of the clerk of the District Court of the district in which the labour has been performed. A contractor who has entered into any agreement with any licensee of the Crown to get out timber has a similar right to filing a lien. In an action for conversion, the plaintiff claimed title under a registered bill of sale which the jury found was made without con- sideration, and in fraud of creditors ; the defendant justified the tak- ing under an unregistered lien note given subsequent to the bill of sale : Held, that the verdict was properly entered for the defendant : Poitras V. Pelletier, 38 N. B. R. 63. A. sends a waggon to H. to make the wood work. B., having finished the wood work sends the waggon in A.'s name for the iron work, and gets it back again from the blacksmith's. A. calls for the waggon ; B. allows him to remove the box on to the highway, but on his returning for the running part, B. refuses to let it go till he is paid his bill : Held, that B. by sending the waggon to the black- smith's had not lost his lien, but that the lien revived upon his again obtaining possession of the waggon, and that allowing A. to remove the box into the highway, was no waiver of his lien : Millburn v. Millburn, 4 U. C. R. 179. The lien of an unpaid vendor of a manufactured article is not invalidated, if without his direction or connivance the purchaser paints out or obliterates the name and address of the vendor, which were pursuant to the Conditional Sales Act, 51 Vict. c. 19 (O.), properly marked on the article at the time of the conditional sale. Semble, that an instrument in the form of a promissory note, with condi'i' under written, is an instrument evidencing a condi- tional sale within the first and sixth sections of that Act: Wettlaufer v. Scott, 20 A. R. U~2. The plaintiffs claimed a lien on a plough sold to II. upon a conditional sale nl reserving to the plaintiffs the ownership until notes were given for the price were paid. The plough was sold by the sheriff under execution against H., the notes being unpaid, and the defendants became the purchasers. Stamped on the plough was the word " Cockshutt," but the plaintiffs' name was not otherwise in any way affixed thereto: — Held, that the stamping of the word upon the plough was not a compliance with sec. 11 of the Ordinance Oblitera- tion of name. EIEE RECl l: 1~ :j > respecting Hire Receipts and Conditional Sales of Goods, which re- quires that "the manufacturer's or vendor's name" Bhall be stamped thereon; and the plaintiffs could not set up the righl of property or possession as againsl the defendants, who were bona fide pn for valuable consideration, without ing their lien aotes, as provided by sec. 2. which they had nol dour, and therefore they hud no lien on the plough: Mason v. Lindsay, 1 I >. l.. R. 365, approved. '..■// Plough Co. v. Cowan, 13 W. I.. R. 256. The purchaser of a piano under a hire receipt (by which the property was to pass to him only on completion of certain payments on account) before he had paid the required sum. agreed with his wife that she should purchase his interest and pay the balance due the vendors. There was no bill of sale registered nor such change of possession as is required by the Bills of Sale and Chattel Mortgage Act, It. S. O. 1S9T, c. 148: Held, that the transaction was invalid as against execution creditors under s. C7 of that Act, and was not within s. 41, s.-s. 4, which is intended to except only conditional sales of chattels within It. S. O., c. 149, which this was not. Held, how- ever, that the wife was entitled to be subrogated to the rights of the vendors of the piano to the extent of the payments made by her: Ely v. MoTavish, 32 O. K. 187. An agreement upon the sale of certain machinery and other goods contained a provision thai until the balance of the purchase money should be fully paid, the vendor should have a vendor's lien on the goods for such balance, and that no actual delivery of such property should be made, nor should possession be parted with until such balance and interest should be fully paid. After the sale the vendee took possession of the goods, and subsequently, on the 1st April, 1890, with the assent of the vendor, who surrendered a former the defendant leased to the vendee the premises upon which the goods were situated. Afterwards, and while the balance of the purchase money was still unpaid, the defendants distrained for rent upon the goods in question: Held, that the stipulation in the agree- ment for a vendor's lien was inappropriate and inconsistent, and must be read out as mere surplusage, and so reading the agreement the transaction was one of conditional sale, and under f>7 Vict., c. 43 (O.), only the interest of the tenanl in the goods could be dis- trained on: Can-oil v. Beard, 27 O. R. 349. When a verbal agreement has been made for the sale of horses or other chattels, and the purchasers afterwards sign a lien note securing payment, with the usual provisions of such a note, evidence may be given of representations or conditions of the sale or to prove a warranty, when it appears that it was not intended to include in the lien note all the terms of the al between the par Be Lasallc v. Guild/on! (1901), 2 K. B. 215, and Erskine v. Adeane, 474 ACTION FOR DETENTION OP GOODS. !h. 756, followed. 2. When the purchaser of a chattel brought with a warranty keeps it for a considerable time and makes a pay- on account, the contract must be treated as executed, and a representation or condition as to the quality of the goods must then led only as a warranty, for the breach of which compensation must be sought in damages and not by rescission of the contract : McKenzie v. McMullen, 16 Man. L. R. 11. A brick-maker who makes bricks for another person in a brick yard belonging to that person, and has possession of the yard while engaged in making the bricks, is entitled to a lien upon them at against an execution creditor or chattel mortgagee of the owner: Roberts v. Batik of Toronto, 21 A. R. 629. ACTION FOR DETENTION OF GOODS. It is enough to show that the plaintiff is entitled to the posses- sion of goods wrongfully held by the defendant. It is frequently brought in England to recover the title deeds of real estate. The damages are in general merely nominal; but the jury find the value of the articles detained, and the common law judgment is that the plaintiff recover the articles or their value, together with the damages and costs found by the verdict, and costs of increase. In determining whether or not a chattel has become a fixture the intention of the person affixing it to the soil is material only so far as it can be presumed from degree and object of the annexation : E olson v. Oorringe, C. A. (1897), 1 Ch. 182. DEFENCES. Leave and License. Illegality. Statute of Limitations. ACTION FOR THE RECOVERY OF LAND.* The plaintiff must recover on the strength of his own title, and not on the weakness of the defendant's. The receipt of rents and profits of land stands on the same foot- ing as actual possession. * Consolidated Rule 285:— A defendant in an action for the recov- ery of land who is in possession by himself or his tenant need not plead his title, unless his defence depends on an equitable estate or right, or he claims relief upon any equitable ground against any right or title asserted by the plaintiff; but, except in the cases hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in possession, and he may rely upon any ground of defence which he can prove. i [ON l OB Kin.. I ;. M>. 475 The plaintiff must show that he had a right of entry at the time mentioned in the writ. The plaintiff may. for the purpose of recovering mesne profits from an earlier day, claim th< ion of the premises from such last-mentioned day. By the Land Tides Act. R. S. O. (1897), c. 133, s. 100, any certificate of charge is prima facie evidence of the matters therein contained. Consolidated Rules 568. 569 are as follows : 568. If upon the trial the evidence of title given by the plaintiff |, orilja ] satisfies the Court (and the jury, if the case is tried by a jury), defects in that he is entitled in justice to be regarded as the proprietor of the P-ij m s land, or is entitled to the immediate possession thereof for any term of years, but that he cannot show a perfect title by reason of some want of form in, or the defective registration of some instrument produced, or from any cause not within the power of the plaintiff to remedy by using due diligence, the Court, or the jury under the direction of the Court, may find a verdict for the plaintiff, unless the defendant or his counsel upon being required by the other party bo to do give such evdience of title as shows that he is the person entitled, or that he bona fide claims to be the person entitled to the land by reason of the defect in the title of the plaintiff, or that he holds, or bona fide claims to hold, under the person so entitled. 569. Where a verdict or judgment is rendered or given under Verdict to the authority of Rule 568. it shall be indorsed as rendered or given be indors- under Rules 56S and 569, and it shall be stated in the judgment d ere( j un . to have been so given, and in any action thereafter brought for mesne der i profits, such judgment shall not be evidence to entitle the plaintiff to recover. The plaintiff must formerly have proved a legal title ; an equit- able title is not sufficient. By the Judicature Act, the same relief is given for an equitable title as formerly the Court of Chancery would have given, and the plaintiff need only prove an equitable title. Un- der the provisions of the same Act, a mortgagor entitled to the possession ot land may sue for the recovery thereof in his own name. In other cases, however, the person in whom the legal estate is vested must be a plaintiff in the action. It is, therefore, still material to consider where it is vested. The general rule is that in the case of passive trusts created by dee*4 or will the use must either be re- duplicated, if limited on a freehc u", or must be limited on a term of years ; otherwise a legal estate passes. Where the estate limited to a use is a leasehold or chattel interest, the Statute of Uses is in- 47 fi ACTION FOR RECOVERY OF LAND. operative, and the use limited is a mere trust: Doe v. Passingham, 6 B. & C. 305. With regard to grants and devises in trust, where something is to be done by the trustees, which makes it necessary for them to have the legal estate, such as the payment of the rents and profits to an- other's separate use, or of the debts of a testator, or to pay rates and taxes and keep the premises in repair, or the like, the legal estate is vested in them and the beneficial devisee or grantee has only an equitable estate : Jeffreson v. Morton, 2 Wms. Saund. 11 B. The defendant may in some cases disprove the legal title of the party through whom both he and the plaintiff claim ; thus, where the plaintiff claims under a conveyance from A. B. in 1818, and the de- fendant under a conveyance from A. B. n 1824, the defendant may show that in 1818 A. B. had no legal estate to convey : Oliver v. Powell, 1 Ad. & E. 531. But the defendant may estop himself from setting up such de- fence ; thus an agreement to purchase by a party in possession is such an acknowledgment of title in the vendor as, in the event of the purchase not being completed, to estop the purchaser from deny- ing the title of the vendor: Doe d. Bord v. Burton, 16 Q. B. 807. Where the plaintiff is entitled with the defendant as joint tenant, tenant in common or co-parcener, he cannot maintain ejectment un- less he has been actually ousted from his possession, or the defendant has done that which is equivalent to ousting: Culley v. Taylerson, 11 Ad. & E. 1008. In an action by a landlord for the recovery of his land, the plaintiff in general need not prove his own title, but only the demise and its expiration, either by efflux of time, determination of will, demand of possession, notice to quit, disclaimer or forfeiture. If there is a demise by deed or in writing, it must be proved by the production of the original lease, unless admitted. If in the defendant's possession, notice to produce should be given. Where the l^ase is oral it may be proved by a person who was present at the making, or by an admission of the defendant. A tenant at will cannot be ejected until after demand, which must be made before the date of the writ: Gallaivay v. Herbert, 4 T. R. 660. When a tenancy at will is created, any act inconsistent with a tenancy at will done by either party will amount to a determination of the will, and render unnecessary a formal demand of possession. Evidence of a demise from year to year may, in the absence of other proof, be gathered from the payment and receipt of yearly rent. This evidence may be rebutted, as by showing that the plain- tiff received it on what was really a void lease. [ION FOB i:; l <-• i.KY or LAND. 477 Whether an instrumenl is a lease or an agreement for a lease depends on the intention of the parties, as may be gathered from the instrument. Notice to produce a notice to quit is not necessary: Doe d. Fleming v. Sommerton, 7 Q. B. 58. Where the lessor proceeds on a forfeiture of i 1 he must prove the demise and the forfeiture. By It. S. <>. L897, c. 170, s. 13. an Acl resp cting the Law of Land- Restrio- lord and Tenant, a right of re-entry or forfeiture under any proviso forfij^J^ or stipulation in a lease for a breach of any covenan litionofh in a lease shall not be enforceable until after notice, which notice must be proved. This does not apply to non-payment of rent (s.-s. 7). Under same statute, sections 20 to 29, special provisions are made for the recovery of premises by landlords where a half year's rent is in arrear. Under these sections a landlord must be prepared with evidence of the right of re-entry ; a service of the writ or the affixing of a copy of it, etc. ; that half a year's rent was in arrear, and that no sufficient distress was found on the premises. Where the plaintiff claimed as heir at law, he must at common Devolu- law have proved that the ancestor from whom he claimed was actually e "t at '^ seized of the land; or, if he claimed as heir to a remainderman, that his ancestor was the person in whom the remainder first vested by purchase, and also that he was heir to such ancestor. Under the Devolution of Estates Act, Ont. Stats. 1910, c. 56, all fee si] es descend to the legal personal representatives of the deceased. By section 7, personal representativs are to be deemed in law heirs. By section 8, trust and mortgi is devolve on personal repre- sentatives. In ejectments by heir at law the most common defences are illegitimacy and a will. The defendant, by admitting plaintiff's pedi- gree and the dying seized, may, where he defends as devisee under a will, entitle himself to begin and reply: Goodtiile d. Revett v. Braham, 4 T. R. 497. Where the plaintiff claims a freehold interest by a devise, he must prove: 1. The right of the testator to devise the land. 2. The regular execution of the will. 3. The death of the testator. 4. The determination of any prior estates. The defendant may Bhow a disclaimer by the plaintiff to take under any part of the will, or he may impeach the will by showing the want of d;i a, etc., etc. See Wills Act, K. S. O. 1897, c 128. 478 ACTION FOR RECOVERY OF LAND. A devisee of a leasehold Interest must prove: 1. The title of the devisor to the property, unless the defendant be estopped from disputing it. 2. The probate of the will. 3. The assent of tne executor to the bequest. In ejectment by an executor or administrator, the plain- tiff must prove: 1. The leasehold title of his testator. 2. The testator's death. 3. The probate or grant of administration. The death of the termor is proved by oral evidence, or by proof of the register of death or burial and identity of the party deceased. The statute applying to limitation of actions relating to real property is R. S. O. 1897, c. 133. (See Part III. Defences.) Arrears of rent and recovery of premises : Denison v. Maitland, 22 O. R. 166. Where there was no evidence that land sold for arrears of taxes had been properly assessed, or that taxes duly assessed were in arrear at the time of such sale, the sale of the land is invalid : McKay v. Vrysler, 3 S. C. R. 436. When an island which has grown out of the wain- formed by alluvium, has a channel dividing it from the land adjacent, navigable for canoes at low water in summer, the proprietor of the adjacent land cannot claim the island as belonging to it by accretion: Dunphy v. Williams, 2 Pug. 350 (N.B.). If the descrip- tion of a mining claim as recorded is so erroneous as to mislead parties locating other claims in the vicinity, the error is not cured by a certificate of work done by the first locator on land not in- cluded in such description and covered by the subsequent claims: Colpen v. Callahan, 30 S. C. R. 555. ACTION OF REPLEVIN. The Replevin Act is Ont. Stats. 1900, c. 38. Where goods have been wrongfully distrained, the person complaining of such distress as unlawful may bring an action of replevin. Where goods have been otherwise wrongfully taken or retained, the owner, or any person capable of maintaining an action for damages therefor, may bring an action of replevin fm- the recovery of the goods. Will not lie against a poundkeeper: Ilbotnon v. Henry, 8 O. R. 675. The right to begin at the trial in replevin is the same as in other actions, although both parties are actors : Curtis v. Wheeler, M. & M. 493. Statute 11 Geo. II., c. 19, R. S. O. 1897, c. 342, makes special provisions with regard to distress for rent. It does not apply to dis- for damage feasant. ACTION' FOB 470 To an avowrj for rent the plaintiff i i a tender of the rent; to :m avowry for dama tender of amends. County Conn action against Township Tax Collector: Howard v. Eevington, 20 A. It. 17.". Replevin for a horse. Plea thai the horse was the horse of de- fendant, and not of the plaintiff as alleged, and issue thereon: Held, that the plaintiff was entitled to begin: Neville v. Fox, 2S D.C.R. 231. Where the defendant in replevin justifies the taking as a distress for rent, the alleged tenancy must he clearly proved precisely as laid in his avowry: Ladds v. Ellott et al., 1 Old. 703 (N.S.). Under the present system of procedure in Ontario an equitable title to chattels will support an action of replevin: Carter v. Long d Bisby, 2G S. C. R. 430. ACTION FOR ACCOUNT. An action for an account in equity is an action for the balance found due on taking the accounl : ii is nol a series of actions for the various items included in the account, nor a series of actions for damages for breaches of covenants to make particular payments: Mourners v. Pearson, 67 L. J. Ch. 304; (1S9S) 1 Ch. 5S1 : L. T. 432 ; 46 W. R. 498. DEFENCE. Laches cannot be imputed until after knuwiedge of the facts : Laches of dice v. George, 2-1 Chy. 513. Executors with a discretionary power executors. to sell their testator's real estate: Held, not liable under the circum- stances for loss arising front deferring sale. Cut where they keep the proceeds of a sale in their hands withoul paying it into Court pending the suit they were charged with interest : McMillan v. Mc- Millan, 21 dr. 3(!9. Laches cannot be imputed to the Crown, and Crown. crept where a liability has been created by statute it is not answer- able for the negligence of its officers employed in the public service: Burroughs v. The Queen, 2 Ex. C. It. 293. Where mortgages or other evidences of debt are assigned as collateral security by a debtor to his creditor, the latter is bound to use due diligence in enforcing,-, ,. payment thereof, and if through his default or laches the moDoy secured thereby is lost, it will bo charged against the creditor and deducted from his demand: Synod v. DeBlaqviere, 27 Chy. 536 : Williams v. Leonard rf Sons, 2G S. C. R. 406. Title III. ACTIONS ON SPECIALTIES. ACTION ON COVENANT. A covenant is an agreement expressed in an instrument in writing executed as a deed. Such agreements, after proof of the deed in which they are contained, are subject to the rules of con- struction applicable to ordinary documents. There need be no formal words of covenant. Any words in a deed shewing an agreement to do a thing make a covenant. A man cannot contract with himself. The objection to such a contract is an objection of substance, not of form, and it makes no difference that he joins another with himself in the covenant either as covenantor or covenantee if the obligation or the right to enforce the obligation is joint. There is no obligation, not an obligation which could not be enforced at law for defect of parties. Further, such a covenant does not, in itself, raise an obligation which will be enforced in equity. An action on one of the several obligations where the covenant is joint and several raises a different question : Rose v. Poul- ton, 1 L. J. K. B. 5, 2 B. & Ad. S22, considered and distinguished. Ellis v. Kerr, 54 S. J. 307. An action of covenant cannot be maintained by grantor on a deed purporting to contain a covenant by grantee, but not executed by grantee to pay certain mortgages although she accepted the benefit of the deed: Cred. Fonc. v. Lawrie, 27 O. R. 498. See page 251, where Tweedle v. Atkinson, 1 B. & S. 393, is distinguished. See Faulkner v. Faulkner, 23 O. R. 252. One joint covenantee can by virtue of R. S. O., c. 122, assign to his co-covenantees his interest in the covenant, and they can then sue upon it without joining him as plaintiff: Scarlett v. Nattrass, 23 A. R. 297. Dependent and in- dependent covenants : Wilson v. Fleming, 24 O. R. 388. A voluntary deed will not be reformed against the grantor : Bellamy v. Badgerow, 24 O. R. 278. "Where there is an ambiguity on the face of a deed incapable of being explained by extrinsic evidence the maxim verba fortius accipiuntur contra proferentem cannot be applied in favor of either party: Barthel v. Scotten, 24 S. C. R. 367. The liability of joint covenanters fur breach of one confined to past liability: Elliott v. Stanley, 7 O. R. 350. Whore different clauses in an agreement contain independent and collateral covenants, and a breach of a covenant occurs, the party A ("I [ON (.„>. P. R. 131. One joint covenantee can by virtue of the Mercantile Amend- ment Act, R. S. O. 1SS7. c. 122, assign to his co-covenantees his interest in the covenant, ana they can then sue upon it without joining him as plaintiff: Scarlett v. Nattreas, 23 A. R. 297. Where the effeel of a contract is to give a stranger to it a bene- ficial right thereunder, he may enforce such righl by action. And where in an agreement for the exchange of certain lands between the sons of the defendant and a third party, which was carried out, and in which the defendant released her dower, and also con lauds of her own to the third party for the benefit of her sons, in consideration whereof they jointly with her covenanted with such third party to pay her an annuity to be secured by mortgage, it was: — Held, that although nol named as a covenantee, she was entitled to main- tain an action to enforce such covenant, and that a judgment creditor of hers was entitled to have equitable execution against her. and a receiver appointed to receive payment of the annuity: Moot v. Gibson, 21 O. R. 2 1^. The right of re-entry under the short form of lease applies to the breach of a negative as well as an affirmative covenant, so that there ISi ACTIOX OX COVENANT. is a right of re-entry for breach of the covenant not to assign or sub- let without leave. Toronto General Hospital Trustees V. Denham, 31 U. C. C. P. 203, followed. The making of an agreement for the assignment of a lease, the settlement of the terms thereof, and the taking of possession by the assignee, constitute sufficient evidence of the breach of such covenant so that the fact of the document shewing the transfer not having been executed until after action brought is immaterial : McMahon v. Coyle, 5 O. L. R. 618. An indenture of lease bearing date the 29th June, 1891, expressed to be made in pursuance of the Act then in force respecting Short Forms of Leases (R. S. O. 1887, c. 106), contained a covenant by the lessees that they would " leave the premises in good repair, ordinary wear and tear only excepted,'' the words in italics not being in the statutory form, and the extended statutory equivalent of the short form having in it the exception " reasonable wear and tear and damages by fire only excepted :" — Held, that the added words were not an exception to or qualification of the short form within the meaning of the Act ; that the covenant had to be construed as it stood without the aid of the extended form ; and therefore that the exception as to damage by tire did not apply : Delamatter v. Brown Brothers Co., 9 O. L. R. 351. Defendant claimed under a deed in fee in which, after the haben- dum, was contained a proviso that the conveyance should be void and Che estate revert to the grantor, if the grantee should make default in performing the covenant thereinafter contained. This covenant was that the grantee should cultivate the land during the life of the grantor for his benefit : Held, that the proviso was void as being inconsistent with the grant : Brown v. Stuart, 12 U. C. R. 510. The covenant not to sue one of two joint tort feasors does not operate as a release of the other from liability: Duek v. Mayen, C. A. (1892), 2 Q. B. 511. Where damages have been assessed on a judgment on an action of tort, as to part against tort-feasors, and as to the balance against one of them, no amount actually recovered against the latter goes on relief of the liability of his co-defendant, unless and until, and then only to the extent to which that amount exceeds such balance : The Morgenyry, 69 L. J. P. 3 ; (1900) P. 1 ; 81 L. T. 417; 48 W. R. 121 ; 8 Asp. M. C. 591. ACTIONS ON COVENANTS RELATING TO LAND. As land is for the most part conveyed and leased by instruments under seal, certain covenants usually inserted in these instruments are frequently the subject of an action. > ACTION ON COVENANTS RELATING CO LAND. 4b-"; The covenants relating to land are principally: Not to assign or sublet without leave. As to trade on premises. For good husbandry. To insure. To repair. To pay rates and taxes. For title. To yield up possession of premises at end of term. Covenants implied in mortgages of real estate are to be found in j,, ,,;,,.,) Ont. Statutes, 1910, chapter 51, section 6. They are (1) For pay- oovei ment. (2) Tor good title. (3) Right to convey. (4) For quiet possession on default. (."">) For further assurance. (6) No act to incumber. On mortgage of leaseholds: (1) Validity of lease. (2) Payment of reul and performance of covenants. Section 7 provides for cases where more persons than one join as mortgagors. In that case the covenants are joint and several. Covenants to be implied on Jn t . , iv a conveyance of land are set forth in R. S. O. 1S97, c. 111. s. 17. unces. Besides the actions on these special covenants it is well to notice : 1. Some of the most material issues arising in actions on deeds and bonds generally. 2. Some of the most material issues arising in actions on leases or other conveyances of real property. The actions on particular covenants will be considered after the above cases 1 and 2. 1. SOME OF THE MOST MATERIAL ISSUES ARISING IN ACTIONS ON DEEDS AND BONDS GENERALLY. Under the Consolidated Rules of Court, the defendant may deny the making of the contract in fact. This defence now in part takeB the place of the old plea of twn est factum. The plaintiff under this defence need only produce and prove the execution of the deed. Where the action is not for any liquidated sum it is also necessary to prove the amount of damage. Under special defences the defend- ant may shew that the deed was executed as an escrow, and was to take effect as a deed only upon some event which has not hap- pened ; or that the deed, after being sealed, was tendered to the covenantee, and he expressly rejected it ; or, in the case of a cor- poration deed, irregularity or want of due authority in the execution of the deed. Other special defences are : Alteration of deed ; Fraud : Statute of Limitations. The Statutes of Limitation applying to deeds or special- ties are now Ont. Stats. 1910, c. 34. The effect of these statutes is that no more than six years' arrears of rent or interest in respect 43t> ACTION ON COVENANTS RELATING TO LAND. of any sum charged on or payable out of any land or rent shall be recovered by way of distress, action, or suit other than and except an action of covenant or debt on a specialty, in which case the limit is twenty years. In an action on the covenant in a mortgage deed to pay the mortgage debt the limit is ten years. It must be shewn which of the three sorts of acknowledgments, viz., writing, payment or satisfaction in part, is relied on : Forsyth v Bristoice, 8 Ex. 347. 2. SOME OF THE MOST MATERIAL ISSUES ARISING IK ACTIONS ON LEASES OR OTHER CONVEYANCES OF REAL PROPERTY. This will be considered : — (a) Where plaintiff sues as assignee of reversion, with the defences of : — Assignment over of reversion by plaintiff. Assignment over of term by defendant. Surrender. Eviction. (6) Where defendant is sued as assignee of the lease, (c) Action for rent under indenture of demise, with the de- fences of : — Payment. Plea of readiness to pay on the land. Statute of Limitations, (a) Wiiere Plaintiff Sues as Assignee of Reversion. The assignee of a reversion cannot recover rent accrued due be- fore the assignment : see Wittrock v. Hallinan, 13 U. C. R. 135. A covenant running with the reversion, entered into by a lessor with his lessee, remains binding on the lessor, notwithstanding that he has assigned the reversion. Dictum in Eccles v. Mills (67 L. J. P. C. 25, 31, 32; (1898), A. C. 360, 371) approved and followed. Stuart v. Joy d Nantes, 73 L. J. K. B. 97; (1904), 1 K. B. 362; 90 L. T. 78 ; 20 T. L. R. 109. Where a lessor covenants that the lessee shall peaceably enjoy the demised premises without any interruption by the lessor or any person claiming under him, the effect of the covenant is that the lessor agrees to be bound by any act of interruption by himself or by any person whom he has expressly or impliedly authorized to do the act, but he is not responsible for wrongful or negligent acts which he lias not authorized: Sanderson v. Bericielc-upon-Tweed Cor- poration (53 L. J. Q. B. 559; 13 Q. B. D. 547) followed. Williams ASSIGNMENT OVER — 8UBBBN] 487 v. Gabriel, 75 L. .1. K. B. 155; '.>i L. T. 17. 54 W. R. 379; 22 T. J.. R. 217. A sub-lease for a period co-extensive with, or longer than, the sub-lessor's term operates as an assignment, and the sub-lessor can- not distrain for rent in arrears: Parmenter v. Webber (8 Taunt 593; 2 Moore 656), and I'reece v. Corrie (6 L. J. (o.s.) C. P. 205; 5 Bine 24), followed. Letoto v. Softer (No. 1) 74 L. J. Ch. 39; (1905), 1 Ch. 4G; 91 L. T. 744; 21 T. I, R. 17. The assignee of the reversion cannot sue for breaches of covenant which accrued before the assignment to him: Martyn r. "Williams, 1 H. & N. 817. See Baldwin v. Wanzer, 22 O. R. 612. Reversion severed. Although R. S. O. 1897, c. 128, s. 10, enacts that a right of entry for condition broken shall pass by will, yet this does not ex- tent to an action upon a covenant broken in a testator's lifetime. . Where plaintiff at time of lease has no title, but afterwards acquires one. the lease and reversion take effect in interest, and an action will lie by the assignee of the reversion on the covenants in the lease: Sturgeon v. Wingfield, 15 M. & W. 224. The plain! iff must prove title by shewing mesne conveyances from original lessor: Carvick v. Blagrauc, 1 B. & B. 531. DEFENCE. ASSIGNMENT OVER OF REVERSION BY PLAINTIFF. The lessor cannot bring an action of covenant on the lease, after he has parted with his reversion, for any breach of covenant running with the land which has accrued subsequently to the grant of the reversion ; but the action can be brought only by the assignee of the reversion. The defendant may therefore set up 32 II. VII7., c. 34. This statute only applies to leases by deed. ASSIGNMENT OVER OF TERM BY DEFENDANT. In an action against the assignee of a term on a covenant in the lease, he may plead that he assigned over the term before breach, for the assignee is only liable for those breaches which have occurred while he is assignee; but for those breaches he may be sued even after he has parted with the t The defendant must prove that the whole term has been legally transferred by him to another, i.e., when necessary by deed. See R. S. O. 1897. c. 119. s. 7. 4S8 U TION OX COVENANTS RELATING TO LAND. SUBRENDER. A surrender of a lease must be by deed, not being of an interest which might by law have been created without writing: R. S. O. 1897, c. 100. s. 7. There may also be a surrender by act or operation of law. Any- thing which amounts to an agreement on the part of the tenant to abandon and on the part of the landlord to resume possession of the premises amounts to a surrender by operation of law : Phene v. Pop- plewell, 12 C. B. N. S. 340. See Ontario v. O'Dea, 22 A. R. 349; Seldon v. Buchanan, 24 O. R. 349. A lessee, notwithstanding a surrender of his term by operation of law, retains an interest in the lease, and on the granting of a new lease to him by the lessor is entitled to retain the old lease. The surrender of an old lease, implied from the acceptance of a new lease, is subject to an implied condition that the new lease is valid: Knight v. Williams, 70 L. J. Ch. 92; (1901), 1 Ch. 526; 83 L. T. 730 ; 49 W. R. 427. On the surrender of a lease with a view to the grant of a new tenancy the tenant loses his right to remove fixtures unless he make some stipulation to the contrary, since the surrender prima facie in- cludes fixtures, and the right ceases when the tenant's interest is gone, though in exceptional cases a termor has been allowed to exer- cise the right after the term was ended, where he had remained in possession in circumstances such that his possession could be re- garded as a mere prolongation of the term : Leschallas v Woolf, 77 L. J. Ch. 345; (190S), 1 Ch. 641; 98 L. T. 558. Fitzherbert v. Shaw (1 H. Bl. 258) ; Heap v Barton (21 L. J. C. P. 153; 12 C. B. 274) ; Weeton v. Woodcock (10 L. J. Ex. 183; 7 M. & W. 14) ; McKintosh v. Trotter (7 L. J. Ex. 65; 3 M. & W. 184) ; Thresher v. East London Waterworks (2 L. J. (o.s.) K. B. 100; 2 B. & C. 608), and Roberts, In re; Brook, ex parte (48 L. J Bk. 22; 10 Ch. D. 100). followed. EVICTION. An action of covenant for non-payment of rent can be defeated by proof of an eviction of the defendant from the premises in ques- tion, cither by the lessor or by one whose title is better than his. Not so if defendant has not given up possession of the whole: Newton v. Allin, 1 Q. B. 5i8. See Shuttleicorth v. Shaw, 6 U. C. R. 539. May be apportioned: Kinncar v. Aspden, 19 A. R. 468. To constitute an eviction at law the lessee must establish that the lessor, without his consent and against his will, wrongly entered upon the demised premises and evicted him and kept him so evicted : Bavn- ton v. Morgan, 21 Q. B. D. 101, affirmed 22 Q. B. D. 74 ; Prentice V. Elliott, T, M. & W. 616; Fitzgerald \. Hondas, 1 O. W. N. 879. ACTION' FOB BENT. DISCLAIMER. Peers v. Byron, 28 U. C. 0. P. 250; Lynett v. Parkinton, 1 U. C. C. P. 144; Kelly v. Wolff, 12 P. K. 234. (6) Wiiebe Defendant is Sued as Assignee of the Lease. It will be necessary to prove either a transfer of the interest by deed, or facts from which an assignment may by law be inferred. It will be sufficient primo facie evidence to shew that the defendant has paid rent as assignee, or is in possession of the premises. DEFENCE. The defendant may prove that he is not an assignee of the whole term, but only an undertenant. The defendant is not chargeable as assignee of the land for the entire rent if the assignment be of part only : Curtis v. Spitty, 1 N. C. 756. As to what covenants run with land so as to bind the assignees, see Spencer's Case, 1 Sm. L. Cas. and Notes : Berrie V. Woods, 12 O. R. 693; Ambrose v. Fraser, 14 O. R. 551; Emmett v. Quinn, 7 A. R. 300. (c) Action fob Rent Under Indenture of Demise. An action lies by lessor, or grantee of reversion against lessee on his express covenant to pay rent, non obstante he have assigned the lease, and the lessor or his grantee have accepted the assignee as his tenant. But the lessor cannot, after he has parted with his reversion, bring an action of covenant for rent accrued due after grant of reversion under 32 H. VIII., c. 34. The lessor may bring an action of debt against assignee of lessee by reason of privity of estate; but an action of covenant will not lie against original lessee after acceptance of assignee by lessee as his tenant: Montgomery v. Spence, 23 U. C. R. 39. When a tenant holds over after the expiration of the term, and nothing is agreed on as to the terms of the new holding, that new holding is not of necessity to be on the same terms as the former, but the landlord may be awarded an increased rent if there are cir- cumstances to shew that such was expected by him, and that such expectation was known to and not repudiated by the tenant: Elgar v. Watson, 1 Car & M. 494. followed. In such a case the tenant was notified in writing within a month that the rent would be increased after another month, and paid two month's rent at the increased rate, without objection : Held, that she was liable for rent, at such increased rate for the remaining 490 ACTION ON COVENANTS RELATING TO LAND. months of her occupancy, without deciding whether a new tenancy from year to year had been created or not : Winnipeg Land and Mortgage Corporation v. Witcher, 15 Man. L. R. 423, 1 W. L. R. 551. The demise may be proved by production and proof of a lease executed by the plaintiff and accepted by the defendant, or by proof of the execution of it by the defendant. DEFENCE. Payment. Readiness to pay on land good in case of debt for rent ; not good in action on covenant. Statute of Limitations. An instance where it w::s doubtful whether the assignment should be treated as of the reversion or of future rent accruing out of the land, and so void as not under seal ; or as an assignment of a chose in action, viz., of all moneys payable under the covenants of the lease, and so valid: Galbraith v. Irving, 8 O. R. 751. Any act of the tenant without the knowledge or sanction of the landlord can only affect his interest as tenant, and cannot prejudice the reversioner : Dixon v. Cross, 4 O. R. 465. A plea to an action of covenant for rent against the assignee of a lease, that all the estate of the lessee did not come to and vest in the defendant, is a good plea : Annis V. Corbet, 1 U. C. R. 303. A., as lessor, leases to B., and covenants to repair, and then assigns to C. the rent for the term which B. is to have. B. sues C. on A.'s covenant. Held, C. not liable, as he had no reversion, and the covenant would not run with the rent : Mc- Dougall v. Ridout, 9 U. C. R. 239. Covenant by lessee to insure in the name of the lessor, tne insurance money to be expended in the erection of new buildings. Held, a covenant running with the land, and that an action would lie on it against the assignee of the lessee : Douglass v. Murphy, 16 U. C. R. 113. In covenant for rent, a plea relying on the plaintiff's acceptance of the assignees as his tenants, and on his receipt of prior rent (not the rent sued for) from them, ing defendant, the lessee, from any further liability, is a bad plea, as being no defence to an action on an express covenant: Ktinson v. Magill, 8 U. C. R. 271. Acceleration clause: Baker V. Atkinson, 14 A. R. 409: Linton v. Imperial Hotel Co., 16 A. R. 337; Mitchell v. McCauley, 20 A. R. 272. In actions to re-enter for breach of a covenant in a lease the Court will, since the Judicature Act, dispose of questions in their equitable rather than their legal aspect in all cases where, under the former practice, the Court of Chancery would have relieved against tne forfeiture : Buckley v. Beigle, 8 O. R. 85. COVENANTS RELATING TO LAND. To avoid a lease under a proviso that upon breach of covenant by the lessee the lessor may "re-enter and thereupon the lease shall determine" the lessor must either actually re-enter or issue a writ for recovery of possession equivalent in law to re-entry. In order that a writ for recovery "f possession may be equiva- lent in law to re-entry it must be an unequivocal demand for pos- session. Principle of Evans v. Davis (48 L. J. Ch. 223: 10 Ch. D. 747), followed. Jones v. Carter (15 M. & YV. 718), and dictum ot Rayley, J., in Fenn v. Smart (12 East 444, 448), followed. Moore V. Ullcoats Mining Co., 77 L. J. Ch. 282; (1908), 1 Ch. 575; 97 L T. 854. ACTION FOR BREACH OF COVENANT NOT TO ASSIGN Now runs with land, R. S. O. 1897, c. 170, s. 6. To prove the breach of a covenant not to assign or under-let it has been held to be prima facie sufficient to shew that a stranger was in the possession of the premises apparently as a tenant, and that on enquiry such stranger said he rented the house : Doe d.. Hindly V. Rickcrby, 5 Esp. 4. In another case it was held not sufficient, for non constat that the party in possession was not a tortious intruder : Doe V. Payne, 1 Stark. 86. Morris v. Williams, 6 B. & C. 41, seems to shew that mere possession would be evidence of an assignment. See Craicford v. lUigg, 12 O. R. 8. The measure of damages in an action for a breach of covenant not to assign, etc., is such a sum of money as will put the plaintiff in die same position as if the covenant had not been broken, and the plaintiff had retained the liability of the defendant instead of an inferior liability: Williams v. Earle, L. R. 3 Q. R. 739. Where a lease containing a covenant against assignment without the consent of the lessors is so assigned, the assignment containing a covenant by the assignee to pay the rent and indemnify the assignor, and the assignee goes into possession of the mortgaged premises, he is liable, although the consent of the lessors may not have been procured, to pay to the assignor rent accruing due after the assignment, which the latter has been obliged to pay: Brown v. Lennox, 22 A. R. 442. Upon breach of a covenant in a lease not to assign without leave, the lessors are entitled to recover as damages such sum of money as will put them in the same position as if the covenant had not been broken, and they had retained the liability of the defend- ant instead of an inferior liability: but in estimating the value of the defendant's liability, allowance must be made for the vicissitudes of business and the uncertainty of life and health. Williams v. 492 ACTION* ON COVENANTS RELATING TO LAND. Earle, L. R. 3 Q. B. 739. followed. Munro v. Waller (No. 2), 23 O. R. 574. Whore a lessor attaches to a license to assign the lease a con- dition which is, in the opinion of the Court, unreasonable, the Court can in an action by the lessee asking for the declarations, make declarations that the lessor is not entitled to impose the condition in question as a condition of giving his license, and that the lessee is entitled to assign his lease to the proposed assignee without any further consent of the lessor : Young v Ashley Gardens Properties, Limited, 72 L. J. Ch. 520; (1903), 2 Ch. 112; 8S L. T. 541. Not to Carry on Business — Loss of Custom. — In an action for damages for breach of a covenant not to carry on a certain business, it was held that general loss of custom after the commencement of the new business by the defendants could be shewn by the plaintiff as evidence to go to the jury of damages resulting to him from such business. Ratcliffe v. Evans (1892), 2 Q. B. 524, applied and fol- lowed. 2. That damages were properly assessed up to the date of the judgment. Stalker v Dunwick, 15 O. R. 342, followed : Turner v. Burns, 24 O. R. 28. Upon a lease made pursuant to the Short Forms Act, containing a condition for re-entry on assigning or sub-letting without leave, when the lessor gives a license to assign part of the demised premises he may re-enter upon the remainder for breach of covenant not to assign or sublet, notwithstanding that the proviso for re-entry requires the right of re-entry on the whole or a part in the name of the whole. Sections 14 and 15 of the Landlord and Tenant Act, R. S. O. 1897, c. 170, are to be read together, the former referring generally to all cases, and making licenses to alien applicable for that par- ticular instance only, tne latter referring to specific cases of licensing alienation of a part, and reserving the right of re-entry as to the remainder. Hence, where a lessor gave a licensee to alien part of the demised premises, it was held that the license applied to the licensed arrangements only, and that upon subsequent alienation without leave ne might re-enter : Baldtvin v. Wanzer, 22 O. R. 612. ACTIONS FOR BREACH OF COVENANT AS TO TRADE ON PREMISES, AND FOR BREACH OF GOOD HUSBANDRY, ETC. The proof of any act which, according to the natural and ordin- ary meaning of their words, is forbidden by these covenants, will entitle the plaintiff to a verdict. A tenant can claim from the landlord who has exceeded the time specified in the lease for making repairs, only such damages as result directly from non-compliance with the conditions of the lease, and COVENANT TO IN8UBE. which might have been foreseen at the time it was granted. As a consequence, if ho did not know that the premises had been leased for a place of business the owner could not foresee that ho might be called upon to pay any other damages than those resulting from the lease of an ordinary dwelling-house, and therefore he can not be held responsible in damages which arise from the fact that 'he tenant has been prevented from carrying on the trade of a tailor whilst the repairs were being effected at a place leased for the purpose of a residence only : Leveille v. Pigeon, Q. It. 26 S. C. 73. ACTION FOR BREACH OF COVENANT TO INSURE. Where the affirmative is peculiarly within the knowledge of the party charged, the presumption of the law in favour of innocence is not allowed to operate ; but the general rule applies that he who asserts the affirmative has to prove it, and not he who avers the negative. Thus, in an action on a covenant for not insuring premises against fire, lies on the defendant to prove he has insured: Tole- man v. Portbury, L. R. f> Q. B. 2S8. Covenant by lessee to insure in the name of the lessor, the insurance money to be expended in the erection of new buildings. Held, a covenant running with the land, and that an action would lie on it against the assignee of the lessee: Douglas* y. Murphy, 16 U. C. R. 113. A covenant by a lessor (not mentioning assigns) to pay for buildings to be erected on the lands demised does not run with the land, and the lessee or his assigns have no claim as against the land or the devisees of the lessor in respect of the value of buildings so erected : McClary v. Jackson, 13 O. R. 310. A lessor demised property for a term of years, with a stipula- tion that the lessee would not carry on any business that would affect the insurance. The lessee made an under-lease, omitting any such stipulation, and the under-lessee commenced the business of rectifying high wines. Injunction granted to restrain same : Arnold v. White, 5 Chy. 371. The usual covenant to insure contained in a mortgage executed under the Act respecting Short Forms of Mortgages operates as an equitable assignment of tne insurance when effected: Greet v. Citi- zen's Ins. Co.; Greet v. Royal Ins. Co., 5 A. R. 59G ; 27 Chy. 121. The proper measure of damages in an action brought after the expiration of the term of a broach of covenant to repair, is the cost of putting tin- premises into a state of repair required by the cove- nant : Joiner v. Weeks (1891), 2 Q. B. 31. The age and condition of a house at the beginning of a tenancy are to be taken into consideration in deciding whether there has been a breach of covenant to repair: Lister v. Lane (1893), 2 Q. B. 312. 494 ACTION ON COVENANTS RELATING TO LAND. On the letting of furnished lodging there is no implied agreement that the lodging shall continue fit for occupation during the term : Larson v. Roberts (1S95), 2 Q. B. 395. The landlord who lets an unfurnished house in a dangerous condi- tion, but being under no liability to keep it in repair, is not liable to his tenant or to a person using the premises for personal injuries happening during the term and due to the defective state of the house: Lane V. Cox (1897), 1 Q. B. 415. ACTION FOR BREACH OF COVENANT TO REPAIR. The pro) i r measure of damages is the diminution of the value of the reversion at the time of action ; See, further, Minshull v. Oakes, 2 II. & N. T-V,\ ; Smith v. Peat, 9 Ex. 161. CovenaDt to Repair — 'Liability of Landlord to Stranger Injured: Caviller v. Pope (1905), 2 K. B. 757; (1906), A. C. 428, followed in Cameron v. Young (1908), A. C. 176, is conclusive against the plaintiffs right to recover. There can be no recovery by reason of the covenant because the plaintiff is a stranger to it : Marcilli v. Don- nelly, 1 O. W. N. 195. The principles of construction of covenants to repair laid down in Lister v. Lane (62 L. J. Q. B. 583; (1893), 2 Q. B. 212), and Proudfoot v. Hart (59 L. J. Q. B. 389; 25 Q. B. D. 42), cases which deal with the liability of lessees' covenants are applicable to covenants by the lessor. A covenant by the lessor to repair the external wall or any part of a building is a covenant to repair on notice and not otherwise: Torrens v. Walker, 75 L. J. Ch. 645; (1906), 2 Ch. 166; 95 L. T. 4u9; 54 AV. R. 584. There is no implied covenant on the part of a landlord to pro- tect a tenant of the grouud floor against water percolating through a defective roof. A tenant taking part of a building iu other parts of which are defects likely to result in damage to him, should ex- amine the premises and contract for the removal of such defects as are apparent, otherwise he will have no remedy afterwards against the landlord for damages caused by such defects. Rogers V. Sorell, 14 Man. L. R. 450, specially referred to. Barker v. Ferguson, 16 O. L. R. 252; 11 O. W. R. 257. The lessor of the basement of a building is liable, having regard to his obligation to afford the tenant proper enjoyment of the demised premises, for damages caused to the tenant by a leakage of water due to the bad condition of the pipes in the floor above, which he himself occupies: Beaudoin v. Dominion Clothing Co., Q. R. 34 S. C. 1" COVENANT TO I'AV BATES AND TAXES — FOB TITLE. 49' To Repair. — In :in action on a lease (having many years to run) for rent and non-repair of the premises: Held, that the reversioner, by reason of the length of the lease, was oo1 restricted to nominal damages, but the measure of damages was the amount to which the reversion is injured by the premises being out of repair: Atkinson v. Beard, 11 \\ C. C. P. 245. ACTION VOll BREACH OF COVENANT TO PAY RA.1 AND TAXES. An absolute covenant to pay rates is broken on non-payment, although no demand has been made on the tenant for payment: Davis v. Burrell, 10 U. B. S21. Where lease contains no provision as to taxes, the landlord must pay them: Dove v. Dove, IS U. C. C. P. 424. Held, that under the wording of the covenant to pay "all taxes, rates, duties, and assessments whatsoever . . . now charged, or hereafter to be charged, upon the said demised premises," the de- fendant was liable for local improvement taxes, and for the additions made under the Assessment Act, year by year, to the amount of the taxes in arrear, or additions made by the municipality: Boulton v. Blake, 12 O. R. 532. ACTION FOR BREACH OF COVENANT FOR TITLE. The covenants for title on which actions are brought are prin- cipally: A covenant that the grantor is seized in fee, or has power to convey ; for quiet enjoyment and for freedom from incumbrances. The measure of damages for such a breach is the difference be- tween the value of the property as purported to be conveyed and that which the grantor had power to convey : Spoor v. Green (43 L. J. Ex. 57; L. R. 9 Ex. 99). followed. Turner v. Moon (70 L. J. Ch. 822; (1901), 2 Ch. 825), fol- lowed. Great Eastern Railway v. Fisher, 71 1.. J. Ch. 241; (1! 1 Ch. 316; 92 L T. 104; 53 W. R. 27'.). No action will lie on the covenant for title when the grantor had a good title at the time of conveying, although the plaintiff ex- perienced delay and getting into possession: Oarr v. Dunn, 9 U. C. R. 24t>. In an action for breach of covenant of good title, the measure of damages is the purchase money paid with interest. No allowance is to be made for the impr or increased value: McKinnon v. Burrows. D O. S. 590; Grant v. Robertson, S 1'. C. R. 370. Where plaintiff (lessee) was evicted by title paramount to lessor: Held, he could not recover. A covenant for quiet enjoyment under 496 ACTION ON COVENANT. the Short Forms Act is limited to acts of lessor and those claiming under him: Davis v. Pitchers, 24 U. C. C. P. 516. See Snarr v. Baldicin, 11 U. C. C. P. 353; Bellamy v. Barnes, 44 U. C. R. 315. Covenant against incumbrances, measure of damages : Connell V. Boulton, 25 V. C. R. 444. Against Incumbrances. — Wnere the vendee of lands, who had himself after purchasing mortgaged the property, brought action for breach of covenant against incumbrances, and the mortgage consti- tuting the breach covered all lands as well as his, and was for an amount much greater than the present value of the land, and it was impossible to apportion it : Held, that the measure of damages was the whole amount due on the mortgage, which should be paid into Court to insure its reaching its proper destination : McOillivray V. Mtmico Real Estate Security Co., 28 O. R. 265. Against Incumbrances — Taxes. — Upon a breach of covenant a party is liable only for such damages as are the natural consequence of his act or omission, where, therefore, the vendee of land allowed it to be sold for taxes, which had accrued during his vendor's time, and neglected to redeem it within the year afterwards: Held, that he could not as of right recover damages to the value of the land so allowed to be sold : McCollum v. Davis, 8 U. C. R. 150. For Quiet Enjoyment — Deducting Amount of Former Award. — During the plaintiff's ownership of a mill site the Government con- structed a breakwater at the mouth of the river, and the plaintiff had been awarded damages " on account of the penning or damming up of the waters by the constructing of the breakwater and forcing this action : Held, that as the sum awarded was a lump sum for both accounts together, and as the evidence on the arbitration shewed that the breakwater only affected the plaintiff to the extent of three feet of water, leaving him a fall of five feet, the value of which could only be ascertained by a reference, and as the subjects of the arbi- tration and this action on the covenant for quiet enjoyment were not the same, the defendants were not entitled to deduct the money recovered from the Government from the amount recovered for dam- ages for their breach of contract: Piatt v. Grand Trunk R. W. Co., 12 O. R. 119. For Title. — W. sold and conveyed lands by metes and bounds to B., who conveyed to D. by a deed containing absolute covenants for title. A portion of the land so conveyed was subsequently claimed by one R., and an action for ejectment was brought by him to recover possession of it, and D. instituted proceedings under the covenant against B. Under these circumstances W. executed to his vendee a mortgage to indemnify him against all damages, costs and charges in respect of the action of covenant. B. subsequently com- promised with R. respecting his claim: Held, that W.'s estate was l!>7 only liable for what should I •• found to 1" the value of the piece of hind so claimed, and not the amount paid by his vendee on the ion of the compromise: Hart v. Bown, 7 Chy. '.'7. The money ordered to be paid into Court: Boyd v. Robinson, 'M O. R. 404. Approved, Mar hum v. McEelean, 1!) A. H. 739; Mc- Gillivroy v. Mitnico Real Est. Co., 28 O. R. 265. Where the lessor has nol Bhewn a ■-• od title to grant the lease until after the grant of the lease, interest on arrears of rent does not begin to accrue until the time of good title shewn : Canadian Pacific Railway v. Toronto Corporation, 74 L. J. P. C. 15; (1905), A. C. 33 ; 91 L. T. 703 ; 21 T. L. K. 44. ACTION FOR BREACH OF COVENANT TO YIELD UP POSSESSION OF PREMISES AT THE END OF THE TERM. The landlord is entitled to recover all the loss he has sustained by not being put in possession of the entire premises at the end of the term ; he is entitled to a sum equivalent to the rent he ha* lost, and to the costs of an ejectment where necessary : Henderson v. Squire, L. R. 4 Q. B. 170. Where a lessee took a lease of premises for two years and cove- nanted to leave the premises without notice at the end of that time: Held, that on ejectment, brought by the lessor at the end of the term, the lessee could not set up a former lease to him for a longer period : Doe d. Wimburn v. Kent, 5 O. S. (U. C.) 437. ACTION FOR DOUBLE VALUE. Under 4 Ceo. II.. c. 28, R. S. O. 1897. c. 342, s. 20, against ten- ant wilfully holding over after : — 1. Determination of term. 2. Demand made. 3. Notice in writing. Plaintiff must prove the demise, the determination of the term, the demand and the value. Notice to quit includes a demand. In estimating value only the land and its real easements and appurte:: . be included. DEFENCE. The defendant may shew that the plaintiff has waived the notice to quit on demand of possession ; and where the plaintiff has accepted 498 ACTION ON BOND. rent due from the defendant after the expiration of notice to quit, it is a question for the jury whether such rent was received in part faction of the double value or as a waiver of it: Ryall v. Rich. 10 East 52. There is also an action for double value under illegal distress, which see. ACTION FOR DOUBLE RENT. By 11 Geo. II., c. 19, s. 18, R. S. O. 1897, c. 342, s. 21, if any tenant shall give notice to quit, and does not quit, he shall pay double rent. The statute only applies to those cases in which the tenant has the power of determining his tenancy by a notice, and actually give* a valid notice sufficient to determine it : Johnstone v. Huddletsone, 4 B. & C. 922. ACTION ON BOND. See, also, Action on Guarantee. See 8 and 9 W. III., c. 11, s. 8 ; R. S. O. 1897, c. 324, s. 4. The plaintiff must set out the breaches he relies upon, in two ways : — 1. By assignment, which is traversable. 2. By suggestion, which is not traversable. In latter case defendant cannot shew excuse of performance. But plaintiff musi shew that bond produced is same on which, judgment obtained. The jury are to find nominal damages and costs as well as dam- ages on the breaches ; but plaintiff cannot recover more than the penalty and costs : Greer V. Johnston, 40 U. C. R. 116. Held, per Tuck, C.J., McLeod and Gregory, JJ., that in an action on a bond conditioned for maintenance, where the breach assigned is refusal to maintain, the plaintiff may recover the whole penalty as damages. In assessing the damages the jury are not limited to those suffered up to the time of the issue of the writ ; but they may take into consideration the damages up to the time of the trial and that there has been a complete breach of the condition, t'er Hanington, Landry and Barker, JJ., that judgment may be entered for the penalty upon which subsequent breaches may be assigned under 8 and 9 W. III. c. 11. but: damages can only be assessed on the breaches assigned up to the commencement of the action: Barthelottc v. Melan- son, :'>r, N. B. Reps. 052. The plaintiffs entered into a contract with the " Estevan School Board of Estevan " for the construction by the plaintiffs of a school DEFENCE. 499 building for the Estevan School District No. 267, according to plans and specifications incorporated into the contract, which required the contractors Bhould "give a surety bond equal to the amount of his contract." The contrail provided for a bond to be given to the corporation in the sum of $5,000. The plaintiffs filed a bond for $5,000, but the obliges were not the defendants, whose proper style was "The Board of Trustee.. £or the Estevan School District Hoard of an in the Province of Saskatchewan :" — Held, that, although the bond was enforceable notwithstanding the misnomer, the defendants were justified in refusing to accept a bond which did not comply with the provisions of the contract ; and it was immaterial that the objec- tion to the bond made by the defendants was not on account of th^ misnomer: Greenwood v. Estevan School Trustees, 13 W. L. R. 117) DEFENCE. PAYMENT. Payment before the day fixed for it was always evidence of a plea of payment at the day; but before Statute 4 and T> Anne, c. 3, s. 12, R. S. O. 1897. c. 324. s. 8, payment after the day fixed, or at a different place from that fixed, was not pleadable in bar. By that Act payment of principal and interest due on a mere money bond made before action is a bar. though not made exactly according to the condition. The defendant must prove the defence, though such defence is in fact a denial of the breach of the condition: Penny v. Foy, S B. & C. 8. BBEACII. Brantford, dr.. R. Co. v. Huffman, 19 S. C. R. 336. EXECUTION IN" BLANK. Reg. v. Chrshy. 1K s. ('. R. 306. A person giving a bond to hold harmless in any actions that may be brought, ami to pay all costs and charges thereby accruing, is bound to indemnify as well against the legal result of any such ac- tions as for tin 1 trouble and expense occasioned by them to the person to be indemnified: Hamilton v. Davis, 1 U. C. R. 176. On a bond given to executors, they may sue either as executors or in their own right: Davis v. Doris. 5 0. S. 551. Action on a bond that G. C, his executors, &c, should account and pay • request. Defendant was one of three execir C, but cK 500 ACTION FOR PENALTY. act in the affairs of the estate, and lived at some distance ; and a request to pay over all moneys. &c, had been made upon the other two executors, but not on him. It was admitted, however, that all the executors had been sued on this bond, and served with process and declaration before the commencement of this action: — Held, that the demand was sufficient. Quwre, whether, as a general rule, when a demand upon executors is necessary it must be made upon all. Semite, not in order to support an action on a contract of the testator, but that a demand upon one would be insufficient t<> cast any new or personal liability on another executor: County of Bruce v. Cromar, 22 U. C. R. 321. See Strickland v. Williams, 08 L. J. Q. B. 241 ; (1899) 1 Q. B. 382; 80 L. T. 4. ACTION FOR PENALTY. In an action of debt on a penal statute the general evidence for the plaintiff is proof of the commission of the act npon which the penalty has accrued, and, if a time be limited by the statute for bringing the action, proof that the action was brought within the time. The Crown alone can sue for the penalty where the statute does not say who shall recover it, unless an interest therein is given to some person by the statute expressly or by sufficient implication as if it is created for a party grieved : Clarice v. Bradlaugh, 8 App. Cas. 354 D. P. The writ is in all cases the commencement of the action, and the statement of claim will show the day on which it is issued. When the writ has been renewed proof of the renewal is requisite. An action for penalty under 13 Eliz., c. 5, may be joined with an action under that Act to set aside a fraudulent conveyance : Miller v. McTaggart, 20 O. It. 017. By 21 Jac. I., c. 4, s. 4, not guilty by statute may be pleaded. Held, that 18 Eliz., c. 5, It. R. O. 1897, c. 224, ss. 28. 29. is in force in Ontario, and therefore the plaintiff, an infant, suing by his next friend, could not maintain an action for a penalty under the Election Act: Garrett v. Roberts, 10 A. R. 650. No damages are recoverable in a penal action except the penalty: Frederick v. Lookup, 4 Burr. 2018. Action for proof of offence necessary even where the defendant makes default : Mason v. Mahar, 1 N. S. V. 314. PART III. DEFENCES PAQJC. Rules of Pleading relative (o Defences 503 Accidental Fire 504 Accord and Satisfaction y r.ijt, Aliens 517 Alteration ... ."17 Ambiguity 518 Appropriation of Payments 518 ■•anient Bailment Champerty 523 Contribution 524 Custom — See Trade Custom below. •ition of Estates Ac! r>24 in .Mori is Causa 526 Duplicate Incorrect 528 Duress 528 Forbearance to Sue 52S ign Law 528 Forgery 529 Fraud 530 Frauds, Statute of 53] Contracl i>y Correspondence 537 Gift of Chattel 540 Illegality 540 Impossibility Indians ."47 I nfancy 549 Insanity r>r>2 Intoxication 552 Laches 552 Lien 552 Limitations, Statutes of Maintenance and Champerty . ."i»;4 Marriage .~i>i r - ( ;7 Military Law . -,;7 Mistake 502 CONTENTS OF PART III. PAGE. Notice 571 Novation 572 Option 572 Payment 572 Purchase without Notice of Registry Title 575 Release 588 Repugnancy of Statute 590 Res Judicata — See Judgment 70 Rescission 590 Set-off 593 Tender 594 Trade Custom 596 Trust, Declaration of 599 Undue Influence 599 RULE PASSED 23rd APRIL, 1910. 1304. Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be, and subject thereto, an averment of the performance or occurrence of all condi- tions precedent necessary for the case by the plaintiff or defendant shall be implied in bis pleading. E£ OF PL 503 RULES OF PLEADING RELATIVE TO DEPENCES. Some defences are only applicable to particular actions. Such defences will be dealt with under t tn - beading of the action to which they apply. There are other defences which are a sufficient answer to any species of action. It is convenient to discuss these general defences before proceeding to the various species of actions. They are presented alphabetically, more in the shape of definition than at any length. Their application to any given case will depend on the circumstances of the case. The definition of the defence will be j guide as to its applicability. Before entering on the subject of the defences themselves it may be well to recapitulate the substance of the rules of pleading relative to defences. First, as to admissions: C. R. 209. — Each party shall admit such of the material allega- Admis- tions contained in the statement of claim or defence of the opposite sions of . , , , . statements party as are true; or he may give notice by his own statement or f . llJ() . otherwise that he admits, for the purposes of the action, the truth of nent. the case generally, or of any part of the case stated or referred to in the statement of claim or defence of the opposite or any other party. C. R. 270 provides for the manner of making admissions in plead- Manner of ing. making admissions Second, as to allegations in pleadings : O. R. 271. Each party in any pleading shall raise all matters Pleadings which shew the action or counterclaim not to be maintainable, or that to ra ' se a11 the transaction is either void or voidable in point of law, and all such defence 8 or grounds of defence or reply, as the case may be, as if not raised reply. would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for in- stance, fraud. Statute of Limitations, release, payment, performance, facts shewing illegality either by statute or common law or Statute of Frauds. C. R. 272. Save as otherwise provided,* the silence of a pleading gj] ( as to any allegation contained in the previous pleading of the op. ling party shall not be construed as an admission of the truth of such "•'' | ' i allegation. C. R. 282. Where a contract is alleged a denial intracl Denial of shall be construed only as a denial of the making of the contract in t1 "' con ", tract only ;■ denial yf * C. R. 279. — Facts presumed need not be stated. C. R. 280. — the male- Denial of representative capacity of opposite party required specifi- in? ' cally. 504 DEFENCES. . and not of its legality or its sufficiency in law, whether with reference to the Statute of Frauds or otherwise. C. R. 285 relates to an action for the recovery of land (page 474). Plea of C. R. 286. Nothing in these rules shall affect the right of a de- bv^fatute * endant to P* ead not guilty by statute.* A defence of not guilty by statute shall have the same effect as heretofore. See also C. R. 276. L'77. 2*78. (.Malice — Notice — Implied Con- tract. ) It is necessary to refer to these rules of pleading, because the course to be taken at the trial depends, in the first instance, on the pleadings before the Court, and the Court, under C. R. 271, will not allow a party to be taken by surprise. Therefore, while amendment is liberally allowed, the countervailing principle of C. R. 271 is frequently applied. See this subject considered, page 8. It is a good defence for a debtor sued on a debt for the discharge of which he had originally given a bill of exchange to plead that at the time at which the writ was issued against him the bill, although it had been dishonoured, was outstanding in the hands of a third party ; and the fact that the creditor had subsequently obtained possession of it is not a sufficient remedy of the original defect in his cause of action : Davis v. Reilly, 66 L. J. Q. B. 844 ; (1898) 1 Q. B. 1 ; 77 L. T. 399 ; 46 W. R. 96. We now proceed with the definition of the various defences. They appear in alphabetical order as follows : ACCIDENTAL FIRE. (See Page 327.) Ont. Statutes 1907 c. 23, s. 41, is as follows : (1) No action shall be brought against any person in whose house or building or on whose estate any fire shall accidentally begin, nor shall any recompense be made by him for any damage suffered thereby, any law, usage or custom to the contrary notwithstanding; provided that no contract or agreement made between landlord and tenant shall be hereby defeated or made void. (2) The provisions of s.-s. 1 are hereby declared to have been in force on and since the 1st day of July, 1867. * The plea of " not guilty by statute " puts in issue not only the defences peculiar to the statute, but all that would have arisen at Common Law ; e.g., in an action for excessive distress a plea of "not guilty," under 11 Geo. II., c. 1!). s. 21, puts in issue not only the matter of justification, but also the tenancy and ownership of the goods. The words " by statute." together with the reference to the statute, must appear in the margin of the statement of defence. ACCORD AND SATISFY An agreement which need not be by • ha rue the right of action possessed b the agreement: see Judicature Act, It. S. <>. L897, c. 70, b. 58 I Brundage v. Howard, 13 V- B. 337; I ton, 20 A. J: 412: Haist v. ';. V. A'., 22 A B. 504. The acceptance of a payment under a comp \. Banfield, 22 A. ii. 488. < ■ mer v. Harks, 11 l". ('. P. 16; Brown v. ./on.-*. 17 I'. C. B. 50; Paisley v. Broddy, 11 I'. R. 202. By subsequent i Corisiinr v. Ifenai M. I.. R. 84. Whether or not a bill or note is taken in discb and satisfaction of a pre-existing debt is a question for the jury, and where the jury was unable to say whether or no1 a draft or n > was so taken in discharge and satisfaction and a verdict was t 1 : upon entered for the plaintiff, the Court senl the case down for a new trial : Dunn rt al. v. Frrderirton Boom Co., 1 P. & B. 575 < N.B.)- The acceptance of a conveyance by way of mortgage for a simple contract debt of a larger amount than that secured and coven:i to lie paid by the mortgage is a satisfaction of the simple com debt for the larger amount: Allen v. Alexander. 11 V . C. C. P. 441, and 541. Tart payment of a judgment must, to be an extinguishment thereof, be expressly accepted by the creditor in satisfaction. Where. therefore, the judgment debtor forwarded to the solicitor of the judg- ment creditor a bank draft payable to the solicitor's order as payment "in full," and the solicitor indorsde the draft and obtained and paid over the moneys to the judgment creditor, bur wrote refusing to accept the payment '"in full," the judgment creditor was allowed to proceed for the balance,: !>. 610, folio? In order to establish accord and satisfaction less than the amount due, it must be shewn thai such payment was mad-' in pursuance oi an agreement for thai so accepted by the creditor: Mel'hrrson y. Cop-'land | P. R. oil), 9 W. L. R. 023 506 . AGENCY. Question for jury . Receipts by. Personal liabil ' agent. Estoppel of creditor. \ contract made by an agent is complete before be has advised his principal of it and before the latter has sent a ratification to the other party to the contract : Hullard v. Thompson Co., 5 Q. P. R. 72 A document executed by an agent in the name of his principal, the subscribing witnesses to which are dead, or out of the Province, can be proved by proving the handwriting, i.e., by the same evidence b would be sufficient to prove its execution by the principal: Dickson v. Jarvis. 5 O. S. 694. The general rule is that clerks of an agent are not agents of the principal : Hope v. Dixon, 22 Chy. 439. Where a bill is drawn by a person signing as agent of a company, the acceptance admits the signature and authority of the agent, and precludes any technical objections as to the composition or description of the company or their ability to draw the bill: Bank of Montreal v. DeLatrr, 5 U. C. R. "02. The question of agency is a question of fact for the jury, there being some evidence to go to them of which the Judge must decide : De Blaquiere v. Pecker, 8 U. C. C. P. 167. By leaving a mortgagor in possession the mortgagee impliedly authorizes him to carry on his business, and to hire and bring in such fixtures as are necessary for his trade, and to agree with the owners as to their lawful possession, and cannot claim to include in his security trad*' fixtures set tip or removed under such agreements: Gough v. Wood, C. A. (1894), 1 Q. B. 713. An agent appointed to receive money for another must in the ordinary course of business be his agent also to give a receipt for It : Bedson v. Smith, 10 Chy. 292. 1. An agent, who, by misrepresentation of his authority procures a person to enter into an agreement with his principals for the pur- chase of land, will be personally liable to the intending purchaser for damages in an action for specific performance against himself and his principals if they afterwards repudiate the agreement and prove that the agent had no authority to bind them. 2. In such a case the plaintiff is entitled nol only to the expenses actually incurred, but also to the loss of the profit he would have made if the bargain had been carried out: Maneer v. Sanford, 15 Man. L. R. 181. Where a debt or obligation has been contracted through an it, and the principal is induced by the conduct of the creditor asonably believe that the agent has paid the debt or discharged the obligation, and in consequence of such belief pays or settles or otherwise deals to his prejudice with the agent, the creditor is not permitted to deny as between himself and the principal that the debt has been paid or the obligation discharged: Oentles v. The Canadian Pacific Railway, 14 O. L. R. 280. AGES' .. . r ,07 Where an action done by an agent on behalf of his principal is Extent of authorised by the terms of an authority given to the agent by the [" : ,'" ';i ,;i1 '- principal, the act is binding on the principal as to all persons dealing in good faith and for valuable consideration with the agent, and the principal cannot escape from liability upon the ground that tin- act was done by the agent in abuse of his authority, for his own purp and not in the interests of the principal : Hambro v. Burnand, 73 L. J. K. R 669 (1904) 2 K. B. 10: 00 L. T. 803; 52 \V. R. 583; 9 Com. ('as. 253 ; 20 T. L. R. 308. Where an agent does an act outside of the apparent scope of his [Jnanthor- authority, and makes a representation to the person with whom he lz ^pre- sentation. acts to advance the private ends of himself or some one else, other than his principal, such representation cannot be called that of the principal. In such a case it is immaterial whether or not the person to whom the representation was made believed the agent had authority to make it : Richards v. Bank of Nova Scotia, 26 S. C. R. 381. A principal may, in the absence of fraud on his part, ratify and Ratihca- adopt a contract made by his agent without his authority, notwith- t '" n standing that other parties to it have before ratification repudiated it, and notwithstanding that the agent acted with fraudulent intent : Tiedemann and Ledermann Freres, In re, 68 L. J. Q. B. S.12 : i 1899) 2 Q. B. 66; 81 L. T. 191. A contract made by a person intending to contract on behalf of another, but without his authority, may be ratified by thai other and so made his own, although the person who made the contract previous to time of making it, be acting on behalf of a principal: Durant v. Roberts (1000), 1 Q. B. 605. Where a principal allows an agent to act as if he were principal, Liability the real principal will be liable for the acts of the agents, if done "f prin- within the reasonable scope of the agent's authority in the particular business, notwithstanding any limitations which the real principal may have put on his agent's authority: Waltan v. Fentcick (1893), 1 Q. B. An agent of two independent and unconnected principals has no Agent for authority to bind his principals, or either of them, by the goods of both in one lot, when the articles included in su< b different in kind and are sold for a single lump price not susceptible of a ratable apportionment except by the mere arbitrary will of the agent: Cameron v. Tate, 15 S. C. R. G22. Where a purchase is made by an agent who disclosed the na ae 1'ndis- « f his principal, it is a question for the jurv to determine to whom olosed lL ... . , , . „...., principal the credit was given : and where the evidence is conflicting the < ourt will not disturb the verdict: Scott v. Curry, Ilil. T. 1834 (N.B.). An agent's subsequent written recognition of an oral contract, where such recognition was made in the performance of his duty in the 50S AGE NT Y. Fraudu- lent act of agent . Bankers. Limited authority. "Holding out." Factors Act. rallying out of the contract: Held, binding on the principal for the purpose of taking the case out of the Statute of Frauds: Ward v. Hayes, 19 Chy. 239. The fraudulent act of an agent does not bind cipal unless it is done for the benefit of the principal, or dnless he knows of or assents to it, or takes advantage of it: Gibbons v. Wilson, 17 O. It. 290. See this case in appeal, 17 A. R. 1, and Bums v. Wilson, 2S S. C. R. 207. In torts the principle of agency does noi apply; each wrong-doer is a principal: Ontario Industrial Loan and Investment lo. v. Lindsey, 4 O. R. 473. Bankers are subject to the principles of law governing ordinary agents, and therefore to whom as agents a bill of exchange is for- warded for collecl ion. can receive payment in money only, and cannot bind the principals by setting off the amount of the bill of exchange against a balance due by them to the acceptor: Donogh v. Gillespie, 21 A. R. 202. A person who deals with an agent, whose authority he knows to be limited, does so at his own peril, and if the agent exceeds his authority in a manner known to the person dealing with him, the principal is not responsible : Russo-Lihinese Bank v. Li Yau Sam, 79 L. J. P. C. 60; (1910) A. C. 174; 101 L. T. 689; 26 T. L. R. 203— P. C. In order that the principle of " holding out " should in any case of agency be applicable the act done by the agent, and relied upon to bind the principal, must be one which the agent is held out as having a general authority on his principal's behalf to do. The word "agent" referred to in R. S. O. 1897, c. 150, "An Act respecting Contracts in relation to Goods entrusted to Agents." means one who is entrusted with the possession as agent in a mercantile transaction for the sale or for an object connected with the sale of the property. And an agent who has obtained possession of certain lumber from the master of a vessel, without authority from the owner, was : — Held, not to have been entrusted with the posses- sion, and that the owner was entitled to recover the value of the lumber from a bona fide purchaser from the agent who had paid the agent : Mushier v. Keenan, 31 O. It. 658. S>m^ page 4i!2. Mercantile agent explained: Hastings v. Pearson (1S93), 1 Q. B. 62. A. being in possession of furniture under n hire and purchase agreement made with B., sold and delivered the same before the last payment had accrued due or been paid to C. : Held, that the sale to ho had acted in good faith and without notice of B.'s rights, was valid under section 9 of the Factors' Act (1889) : Lee v. Butler (1893), 2 Q. B. 318; see Helby v. Matthews (1895). A. C. 471. 50S The woi np in th ' in section ! 1S89, mean acting as a mercantile agent in in which - an agent would act if the particular duly authorized by his principal: Oppenheimet tenborovgh, 77 L. J. K. B. 200: (1908) 1 K. B. 221: 98 L. T. 94; 13 Com. Cas. 125; 24 T. L. R 11.-,— r\ A. in an action apainst the employer for dan sionod in the performance of a contract it must be shewn that tlie contractor is the authorized apent of the parties sought to be or at all events that they subsequently ratified or adopted the work eir own: Carroll v. Corporation of Plympton, ('. 1'. 345. The measure of damages for which an agent is responsible in Mea quence of his i ntations is the actual loss which the damages. Principal thereby sustains, and does not include the anticipated profit which the principal might have made if the representation had true. Cassaboglon v. Gihb (52 L. J. Q. B. 53S : 11 Q. B. D. 707) approved: Salvasen v. Rederi Aktiebolaget Nordstjernan, 74 L .1. P. C. 96: (1005) A. C. 302; 92 L. T. 575. The measure of damages in such a case will be the profits that reasonably be expected to result from the undertaking: Grant v. Creehnan, et al. 2 Thorn. 37 (N.S.). The principle laid down in CoUcn v. Wright (27 L. J. Q. B. 215: 8 E. & B. 647) is not confined to a simple case where a professed agent, acting without authority, induces a person to enter into a contract with a supposed principal, but has a wider application ed in Firhank v. Humphreys (56 L. .1. Q. B. .-,7: 18 Q. B. 1». 54), and that principle is not affected by the decision of ihe House of Lords in Berry v. Peek (58 L. .7. Ch. S64 : 14 App. Cas. 337) : Oliver v. Bank of England, 71 L. J. Ch. 388; (1902) 1 Ch. 610; 86 L. T. 248: 50 W. it. 340; 7 Com. Cas. S9. Where a contract is induced by false representation of an agent. Proof of of knowledge or authorization of such representation on the 5* 8® part of the principal is not necessary to rescind the contract: Mil- necessary. bum v. Wilson. Evans v. MacMicking (1009). 2 Alt. L. R. 5. Where an intending purchaser by disguising bis intentions under "Disin- tne role of a disinterested friend, imposes on the confidence th; established, and indi owner of land to accept an i the purcha; -inch probably would not otherwise have accepted without ind investigation, specific performance of an agreement for sale thus procured will not be enforced. Fellowea v. :ssed and distinguished: Henderson v. Thompson, 41 S. C. II. 4-15. An agent who invests money f rincipal without taki proper precautii irity, is guilty 510 DEFENCES. Trade pro- tection society. Mercantile agency. Auc- tioneer. negligence, and if the value of the security proves less than the amount invested, he is liable to his principal for the loss occasioned thereby. The measure of damages in such a case is not the amount lent, wita interest, but the difference between the amount and the actual value of the land : Lowenburg v. Wolley, 25 S. C. R. 51. No privilege or protection attaches to information supplied by a trade protection society to its customers which is injurious to the character of another: Macintosh v. Dunn, 77 L. J. P. C. 113; (1903) A. C. 390 ; 99 L. T. 64 ; 24 T. L. R. 705. A mercantile agency i • not liable in damages for false information as to a trader given in good faith to a subscriber making inquiries, the information having been obtained by the agency from a person apparently well qualified to give it, and there being nothing to make them in any way doubt its correctness: Robinson v. Dun, 28 O. R. 21, 24 A. R. 287. An auctioneer has an implied authority to sell without reserve, and if he does so, the vendor cannot set up as against the buyer a limitation of that authority not made known to the buyer. Warloic v. Harrison (29 L. J. Q. B. 14: 1 E. & E. 309) distinguished: Rainbow v. Howkms, 7.", L. J. K B. 641; (1904) 2 K. B. 322; 91 L. T. 149 : 53 W. R. 4(5 ; 20 T. L. R. 508. An auctioneer warrants his authority to sell, and if he sells without authority, although by innocent mistake, he is liable in damages to the purchaser for loss of bargain : Anderson v. Croall, 6 F. 153. At an auction where by the conditions of a sale each lot was to be offered subject to a reserve price, the plaintiff bid for a lot a sum which was less than the reserve price. The auctioneer, thinking by mistake that the reserve price had been reached, knocked down the lot to the plaintiff. He immediately discovered his mistake and withdrew the lot, and refused, though requested by the plaintiff, to make and sign a memorandum of the contract of sale : — Held, that inasmuch as both the bid and the acceptance of the bid at the auction conditional on the reserve price being reached or exceeded, the plaintiff was not entitled to maintain an action against the auctioneer either fur breach of duty or for breach of warranty of authority: McManw v. Fortescue, 7<; L. J. K. B. 393; (1907) 2 K. B. 1; 96 L. T. 444: 23 T. L. R. 292. The defendanl was induced to purchase the pictures by mis- representations fraudulently ma tie by the owner, but not fraudulently made by the auctioneer: Held, that, in an action upon the cheque, the auction i utitled to recover the amount of the cheque from the defendant: Jlindlc v. Brown, 98 L. T. 791 C A. Duty of architect in superintending erection of buildings: see BadgUy v. Dickson, 13 A. R. 494. 5 1 l Where an architect is instructed to prepare plans for a building ■ to cost not more than a certain sum. !mi which building n . comply with other conditions as to accommodation under a municipal by-law, then, although, in order to comply witl cond enders sent in are in excess of the sum mentioned, the architect eanno: recover his services: Wilson v. Word. 15 B. C. R. 131, 9 W. L. R. 481. A vendor who has plan,] his property in the hands of his agenl for sale on commission will not be liable to the ot. if he afterwards sells to a purchaser in ignorance that such purcb has been sent to him by the agent (Locators v. Clough, 17 Man. I/. R. 859) unless there are circumstances sufficient to put the vendor upon inquiry as to whether the purchaser was not in fact sen him by the agent: Hughes v. Houghton Lain] Co., Man. 1.. R 9 W. L. R. 646 Estate agents as such have no general authority to enter in contracts for their employers. Their business is to find offers and to submit them to their employers for acceptance. If any authority to enter into contracts is given in any case it must be proved, and cannot be inferred from the relation existing between the parties: Thutnan v. Best, 79 L. T. 239. The defendant, knowing that the plaintiff was a land agent, arranged with him to procure a purchaser for his house and lot a" a named price. Through the plaintiff's intervention a proposed pur- chaser was procured anu a purchase discussed. Subsequently, and as a result of the discussion, a lease was entered into of the premises for three years, with a collateral agreement giving the purchaser the option of purchasing within a year, which he exercised: Held, that the plaintiff was entitled to his commission from the defendant: Morson v. Burnside, 31 O. R. 43S. Instructions given to estate agents to find a purchaser and ne tiate a sale, held not to amount to an authority to bind the vendor by a contract. To bind the vendor there must be an express authority to the agent to enter into a contract on behalf of the vendor: Chad- bum v. Moore (1S92), W. N. 126. Where an agent is authorised to underwrite policies " in the r name and on behalf of" principals, such a mandate does not author him to make a contract which, although the agent pur] nake it on behalf of the principal, is in fact to enure only for the b of the agent. If a person contracts with an is for him I i see as best he can that the agent is acting Hambro v. Burnard. 72 L. J. K. B. <">G2 : (1903) 2 K. B. S9 L. T. 180; 51 W. R. 652; S Tom. Cas. 252 Althougu an agent for the sale of land hv an oral authority from the owner may sign for him a contr ' > of 512 DEI land, which will be binding under the Statute of Frauds, yet if dis- puted the evidence of the agent should not be accepted as sufficient proof erf such authority without corroboration, unless it is of the clearest and most convincing kind, and such as bears overwhelming :<:tion on its face: uilmour v. Simon, 15 Man. L. R. 205. Com: 1° an action by an agent to recover the amount of his com- sion. mission he must shew that he has produced to the principal a purchaser ready, willing, and able to enter into a binding agreement to purchase ; and the agent is entitled to his commission if, the parties having been shewn to be agreed upon the terms, the sale is -ubsequently prevented by the fault or default of the vendor. Qrogan v. Smith. 7 Times L. R. 132. followed: Bagshawe v. Roland, 7 W. L. R. 158, 13 B. C. R. 262. A real estate agent employed to find a purchaser for land who finds a purchaser ready and willing to purchase upon terms, which although not identical with those in contemplation at the time of his employment, are satisfactory to the owner, is entitled to compen- sation for his services, notwithstanding that no sale is actually made, by reason of refusal of the owner to sell the property for reasons unconnected with the terms of purchase: McKenzie v. Champion, 12 S. C. R. 649. followed. Where in the proposed vendor's instructions to the agent there is not something to indicate that it was his intention to give the agent authority to sell, it will be inferred that the authority ex- tended only to finding a purchaser: Boyle v. Orassick, 6 Terr. L. R. 232; 2 W. L. R. 99. 2S4. The defendant employed the plaintiffs, real estate agents, to sell certain property at a certain price, agreeing to pay a commission. They procured a purchaser able and willing to pay the price and submitted a written offer. On receipt of the offer, the defendant, making no objection to it, said he wanted to look into the matter and used the offer as a lever to close a pending offer of his own to ;. at the same price, in order to save the commission: Held, that the plaintiffs had done all they were called upon to do when they obtained a purchaser ready and willing to purchase and tnat to their commission : Marriott v. Brennan, 14 O. L. R. 508. If an agent is entrusted by his principal with money to buy t^oods, the money will be considered trust funds in his hands, and *' the principal has the same interest in the goods when bought as he had in the funds producing them. If the goods so bought are mixed with tnose of the agent, the principal has an equitable title to a quai. taken from the mass equivalent to the portion of the money ac has been used in the purchase, as well as to the unexpended balance : Carter v. Long d Bisby, 26 S. C. R. 430. 513 A driver employed by a laundryman to deliver laundried goods Laundry- to customers, is not liable for credit given them, when it is estab- |j^ e " lished that all the drivers in the same employ were in the habit of doing so, to the knowledge of their employer. The driver has the right to take credit for sums paid by him to customers for goods lost, and due to them by his employer: Shovelin v. Hanson, Q. R. 30 S. C. 3G0. When the buyer of goods from an agent knows that the person Buyer of he is dealing with is only an agent, he cannot set off a claim against £ ood »- the agent in an action by the principal for the price of the goods, although the ownership of the goods may have been transferred to another principal before he bought and without his knowledge. Sj far as the claim of set-off is concerned, it is immaterial whose agent the buyer thought him to be: Wood v. John Arbuthnot Co., 16 Man. L R. 320. A principal can ratify a contract made by his assumed agent, Ratifica- after the principal has repudiated it and has refused to be bound by tujn - it. The rule as to ratification by a principal of acts done by an assumed agent is that the ratification is thrown back to the date of the act done, and that the agent is put in the same position as if he had authority to do the act at the time the act was done by him: Pickles d Mills v. Western Assurance Co., 40 N. S. R. 327. Promoters of a company employed an agent to solicit subscrlp- Promoters. tions for stock, and W. was induced to subscribe on false represen- tations by the agent of the number of shares already taken up. In an action by W. to recover the amount of his subscription from the promoters : Held, that the latter having benefited by the sum paid by W., were liable to re-pay it though they did not authorize it, and had no knowledge of the false representations of their agent. Held, that neither express authority to make the representations, nor sub- sequent ratification or participation in benefits were necessary to make the promoters liable; the rule respondeat superior applies as in other cases of agency: Milburn v. Wilson, 31 S. C. R. 481. Where promoters proposed to acquire property and turn it over to a company to be formed, in exchange for bonds and stock, it was held, that there was no fiduciary relationship existing between the parties, such as partners or agents, and no agreement between the promoters would bind the company to be formed : Kalner v. Baxter (1866), L. R. 2 C. P. 174; Xatal Land Co. v. Pauline (1904), A. C. 120, and Bright v. Button (1S52), 3 II. T.. C. 431, followed. Garvin v. Edmondson (1909), 14 O. L. R. 435. Liability of promoter: Re Hess Manufacturing Co., 23 O. R. at p. 198. 514 DEFENCES. Company Power of company to carry on business after winding up pro- or corpora- cee dings have commenced: Re Haggart Bros., 20 A. R. 597. tion. Discretionary power of Court: Wakefield Co. v. Hamilton Co., 24 O. K. 107. Where the power to contract exists, a person contracting with the company need not enquire whether the proper formalities have been complied with in a contract under its corporate seal : Sheppard v. Bonanza, 25 O. R. 305. A corporation is liable on an executed contract for the perform- ance of work within the purposes for which it was created, which work it has adopted, and of which it has received the benefit, though the contract was not executed under its corporate seal, and this applies to municipal as well as other corporations : Bernardin v. Municipality of North Dufferin, 19 S. C. R. 581. The doctrine that a corporation may contract without seal for the purchase or sale of property, necessary for carrying on the busi- ness for which the corporation has been created, does not apply to a case where the power of the corporation to do the act is not to come into existence unless or until a certain prescribed condition has been performed by them which has not been performed : Holmes V. Trench (1898), 1 Ir. R. 319. Shipping A shipping agent cannot bind his principal by receipt of a bill of lading after the vessel containing the goods shipped has sailed, and the bill of lading so received is not a record of the terms on which the goods are shipped. Where a shipper accepts what purports to be a bill of lading under circumstances which would lead him to infer that it forms a record of the contract of shipment, he cannot usually, in the absence of fraud or mistake, escape from its binding operation, merely upon the ground that he did not read it ; but that conclusion does not follow where the document is given out of the usual course of business, and seeks to vary terms of a prior mutual assent : N. W. Transportation Co. v. AIcKenzie, 25 S. C. R. 38. Solicitors' On dissolution of a partnership between solicitors, in the ab- partner- sence of express stipulation, each partner is entitled to use the old firm name, provided such use does not expose the other partners to liability or risk. Risk for this purpose means appreciable risk in a business sense: Burchell v. Wilde, G9 L. J. Ch. 314; (1900), 1 Ch. 551 ; 82 L. T. 576 ; 48 W. R. 491. A partner who on his own account makes a purchase of a prop- erty or business which is not within the scope of the partnership and is neither in rivalry or in any way connected with the partner- ship, and who acts on information not acquired by reason of his position as partner, is not liable to account to his co-partners : a<; i 515 Vassels v. Stewart <0 App. < as. 64), followed. Trimble v. Goldberg, 75 L. J. P. C. 92; I 1906), A. < '. I'.M ; 95 L. T. 163; 22 T. L. R, 717, A partuer entrusted with possession <>f goods of his firm for the purpose of sale may either as partner in the business, or as factor for the firm, pledge them for advances made to him personally; and the lien of the pledgee will remain as valid as if the security had been given by the absolute owner of the goods notwithstanding notice that the contract was with an agent only : Dingwall v. McBean, 30 S. C. It. 441 In an action by partners brought after the Act allowing parties in a cause to be witnesses, it is not necessary to call the plaintiffs to prove the partnership — it may be proved by other evidence in thp usual way, by parties having dealings with them as such, or by persons having means of knowing who composed the firm: Rankin v. Harley, 1 Han. 271 (X.B.). A stockbroker on the death of his client has no authority, ex- Stock- press or implied, to carry over shares purchased for his client to brok< r. the next settling day, but should close the account: Phillips V. Jones (4 Times L. It. 401), followed. Overtoeg, In re; Haas v. Durant, 69 L. J. Ch. 255; (1900). 1 Gh. 209: 81 L. T. 77(5. The defendant in giving authority to the plaintiffs to do business on the stock exchange must be taken, in the absence of evidence to the contrary, to have employed them on the terms of the stock ex- change, and, therefore, to have authorized the sale of his shares on failure to supply them with the requisite funds : Forget v. Baxter (1900). A. C. 407. As pointed out in Contnee v. Securities Holding Co., 38 S. C. R. 601, brokers are accustomed and entitled to consider the shares held by them for clients when all of one sort as being practically one fund. They are not bound to ear mark any particular shares for any par- ticular client. In Clark v. Bailie, 19 O. I>. R. 545, proof was given of an agreement or custom binding upon bankers and brokers that shares would be given up upon payment of the amount owing in respect to them alone: Hutchinson v. >1 affray & Casscls, 1 O. W. N. 481. There is no obligation on a broker in the absence of the custom- er's orders to sell shares during a falling market after he has de- manded further margins and received no reply from his customer, and therefore if he does not sell the stock under such circumstances he has no responsibility for any loss that may arise to the customer: Kerr v. Murton, 7 (). L. K. 751. Where credit is given to an abstract entity, such as a club, the Club, creditor may look to those who in fact assumed to act for it, and 516 DEFENCES. Voluntary associa- tion-. Notice of expulsion. Bicycle cup. club. those who authorized or sanctioned that being done ; at all events where he did not know of the want of authority of the agent to bind the club. Review of English cases on this subject. The liability in such cases is not several but joint. In an action begun against an unincorporated company as a partnership, to recover a sum for costs paid by the plaintiffs, an order in chambers allowing the plaintiffs to amend by adding as defendants certain members of the executive committee of the company, and to charge them in the alternative as personally liable by reason of their having sanctioned the arrange- ment between the plaintiffs and the association, was affirmed without prejudice to the defendants applying to add parties : Aikens V. Do- minion Live Stock Association of Canada, 17 P. R. 303. These voluntary associations are not restricted in their actions by the limitations of legal evidence as held in the Courts the rules of evidence have grown up as the result of practice, not by law of the land : Duke of Beauford v. Crawshay, Har. & Ruth, at p 646. And by parity of reason such lines of evidence must be used by private clubs and corporations as are within their competence to procure : Guinane v. Sunnyside, 21 A. R. 49. Inasmuch as no notice was given to him of the charge preferred against plaintiff, upon which the defendants purported to act in ex- pelling him, and therefore his expulsion was in those circumstances contrary to natural justice : Gray v. Allison, 25 T. L. R. 531. Where a challenge cup to be won in a bicycle race between com- peting clubs, was held by trustees under an instrument of trust by which all arrangements pertaining to the course, race, protests, and matter " connected with the welfare of the cup " were to be decided by the trustees according to certain rules, the Court, upon the mere allegation of fraud and before decision of the trustees, refused to exercise jurisdiction restraining the trustees from parting with the cup to an alleged winner under protest, upon the ground that one of the winning riders did not go round the course, that being a matter of fact for the decision of the trustees : Brown v. Overoury, 11 Ex. 715; Ellis v. Hopper, 3 II. & N. 768, and Newcomcn v. Lynch, Ir. R. 9 C. L. 1 ; Ir. R. 10 C. L. 248, followed : Ross v. Orr, 25 O. R. 595. Where the rules of a club contain no express provision for the making of amendments or alterations therein, the majority of mem- bers assembled in general meeting have no inherent authority, against the wishes of the minority, to alter the rules forming the written contract by which the members are bound, and a dissentient mem- ber who has declined to pay an increased subscription, imposed at a general meeting, and who has been consequently posted as in de- fault, will be entitled to an injunction to restrain the committee of tne club from excluding him from its privileges: Harington v. Sen- dall, 72 L. J. Ch. 369; (1903), 1 Ch. 92] : 88 !.. T. 323; 51 W. R. 463. ALIENS. R. S. C. c. 97, ..ii i't respecting t ho Importation and Employ- ment of Aliens, contains the following : — 2. All contracts or agreements, express or implied, par rtain special made by and between any person, company, partnership orconti corporation, and any alien or foreigner, to perform labour or service, j or Ber . or having reference to the performance of labour or service by any vices void. person in Canada previous to the immigration or importation into Canada of the person whose labour or service is contracted for, shall be void and of no effect. 13. This Act shall apply only to the importation or immigration Recipro- of such persons as reside in or are citizens of such foreign countries city of Act. as have enacted and retained in force, or as enact and retain in force, laws or ordinances applying to Canada of a character similar to this Act. 14. Evidence of any such law or ordinance of a foreign country Evidence may be given by the production of a copy thereof purporting to be : — °* foreign (a) Printed by the government printer, or at the government printing office of such foreign country, or contained in a volume of laws or ordinances of such country purporting to be so printed; or (b) Certified to be true by some officer of state of such foreign country, who also certifies that he is the custodian of the original of such law or ordinance, in which case no proof shall be required ot the handwriting or official position of the person so certifying. ALTERATION'. Leading case, Pigot's Case, 11 Rep. 1. An immaterial alteration by a stranger does not avoid a deed. 2. If made by a party interested, the alteration will avoid as against him, whether material or not. 3. A material alteration by a stranger avoids it. The second resolution in Pigot's case was dissented from in Ahlous v. Cornwall, L. R. 3 Q. B. 573; and it is the rule that an alteration which has no effect on the liability of either party, as stated in the contract, will not vitiate the instrument. As to the third resolution, it has also been questioned. As to whether a ma- terial alteration by a stranger would avoid an instrument or not would depend on whether the plaintiff was responsible for the custody of the document: Saylcs v. Brown, 2S Chy. 10: Sommerville v. Roe, 518 DEFENCES. 28 Chy. 618. The legal effect of a document cannot be altered by the subsequent conduct of the parties, but it is not unreasonable to look at that for an explanation of an ambiguous phrase: Pollock on Contracts, p. 431; McCuaig v. Phillips, 10 M. L. R. (.Man.). A per- son who has executed a deed cannot be bound by an alternation made in liis absence by his verbal direction. Qucere, whether upon the evi- dence stated in the report of this case defendant could be held estopped by his acts from disputing the bond as altered: Martin v. H aiming, 26 U. C. R. 80. In construing a deed the Court can correct a grammatical error which, if allowed to stand, would have the effect of nullifying' v the obvious intention of the grantor: Glen's Trustees v. Lancashire and Yorkshire Accident Insurance Co., 8 F. 915. Although the subsequent acts of the parties to the contract are not admissible as evidence to vary its terms, they may prevent one of the parties from insisting upon a strict performance of the orig- inal agreement: Bruncr v. Moore, 73 L. J. Ch. 377; (1904), 1 Ch. 305 ; 89 L. T. 738 ; 52 W. it. 295 : 20 T. I,. R. 125. The customer of a bank who so draws a cheque that a forger is able to insert words and figures increasing the amount is not liable to the bank for the loss sustained in paying the increased amount : Colonial Bank of Australasia v. Marshall, 75 L. J. P. C. 76; (1906), A. C. 559 ; 95 L. T. 310 ; 22 T. L R 746. AMBIGUITY. The principle laid down in Ireland v. Livingstone (41 L. J. Q. B. 201; L. R. 5 H. L. 395), is not confined to cases between prin- cipal and agent, but is of wider application. Where a person makes a communication to another in ambiguous terms he cannot after- wards complain if the recipient of the communication oona fide puts upon it a meaning not intended by the sender : Miles v. Haslchurst, 12 Com. Cas. 83 ; 23 T. L. R. 142. Wbere words in a proposal for a contract are understood and acted upon by the parties in different senses there is no contract, and it is for the plaintiff, in an action for breach of contract, to shew that his construction is the true one. It is not for the' Court to de- termine the true construction : Falck v. Williams, 69 L. J. P. C. 17 ; u900), A. C. 176. APPROPRIATION OF PAYMENTS. Appropriation of payments is to be made (1) as the debtor directs at the time of payment; (2) when there is no direction by the debtor, as the creditor directs; (3) when neither make any direction then the law will apply to the older debt, not statute barred, or as may be just: Wilson v. Rykert, 14 O. R. 188. APPROPBIATION OF I'AV.MI Where part of plaintiff's own demands, stated in bis particulars, are barred by the Btatute, he has a right to place against these the items of set-off appearing in his particulars to be beyond six years: Ford v. Bpafford, 8 1.0. B. IT. When a debtor pays money on account to liis creditor, and makes propriation to particular items, the creditor bas the right of appropriation, and may exercise the righl up to the last moment by action or otherwise. The application of the money is nol governed by any rigid rule of law. but by the intention of tie- creditor expressed, implied or presumed: lorey v. Owners (1897), A. ('. 280. Absence of Appropriation by Principal. — A surety has no right to complain of the appropriation of payments by the creditor when tne principal makes no appropriation of them, but leaves it to the creditor: Cunningham v. Buchannan, 10 Chy. 523. Appropriation of payments is a question of intention ; and where a creditor takes security for an existing indebtedness, and thereafter continues his account with the debtor in the ordinary running form, charging him with goods sold and crediting him with moneys re- ceived, and crediting and charging notes on accounts in such a way as to render the original indebtedness undistinguishable, there is no irrebuttable presumption that the payments are to be applied upon the original indebtedness : Griffith v. Crocker, 18 A. R. 370. The rule that payments on account are to be appropriated to interest before principal does not apply, where in the case of bankers' accounts, the interest has, upon making up the account half-yearly, been converted into capital: Parr's Banking Co. v. Yates, 07 L. J. Q. B. S51; (1898), 2 Q. B. 400; 47 W. B. 42. In the absence of notice of fraud a banker is entitled to set off what is due to a customer on one account against what is due from him on another, although the former may in fact belong to other persons: Bank of New ^outh Wales v. Ooulburn Valley Butter Fac- tory. 71 L. J. P. C. 112; (1902). A. C. 543; S7 L. T. 88; 51 W. R. 307, The rule in Clayton's Case (1 Mer 572), that where there ; s an account current between parties, and payments are made with- out appropriation by either debtor or creditor, such payments are to be attributed to the earliest items in the account, does not apply to a case in which debts arise from distinct transactions which are not brought into a common account, and where with respecl to the items to which it is sought to appropriate the payments there has been only a temporary abandonment of a remedy in rem. The principle of Clayton's Case cannot apply to two transac- tions of the same date: The Mecca, 66 L. J. P. 86; (is:>7>. A. C. 286; 76 L. T. 579: 45 W. B. 667 : 8 Asp. M. < '. 266. 520 DEFENCES. ASSIGNMENT. One joint covenantee can, by virtue of the Mercantile Amendment Act, R. S. O. 1887, c. 12:2, assign to his co-covenantees his interest in the covenant, and they can then sue upon it without joining him as p'aintiff. A conveyance of the equity of redemption to one of several joint mortgagees, he coveuanting to pay off the mortgage, does not extinguish the mortgagor's liability on his covenant for payment of the mortgage debt: Scarlett v. Mattress, 23 A. R. 297. Where a person having a demand against another gave to a creditor of his own au order on his debt for a portion of his demand, which order the debtor was notified of but did not accept : Held,, not- withstanding, that the order and notice formed a good equitable as- signment of the portion of the claim which is covered : Farquhar V. City of Toronto, 12 Chy. 186. A parol assignment of a chose in action is valid, notwithstanding section 7 of the Mercantile Amendment Act, It. S. O. 1887, c. 122: Trusts Corporation of Ontario v. Rider, 24 A. R. 157; affirming 27 O. R. 592. Chose in Action. — Verbal assignment : Shannon v. Toronto, 15 C. L. T. 39. Under s. 25, s.-s. 6 of the Judicature Act, 1873, there cannot be a valid assignment of a part of a debt or legal chose in action : Skipper v. Holloway, 79 L. J. K. B. 91, not followed. Boivles v. Baker, 102 L. T. 29 ; 26 T. L. R. 243. Where a debt has been assigned by way of mortgage, but no notice in writing of the assignment has been given to the debtor, the cause of action still remains in the assignor: Okell v. Dickson, 9 Brit. Col. L. R. 151. To constitute an equitable assignment of a chose in action neither writing nor any particular form of words is required, but any words or acts from which it is to be inferred that there was an intention to pass the beneficial interest are sufficient: Hughes v. Chambers, 14 Man. L. R. 163. No writing or particular form of words is necessary to constitute an equitable assignment ; an intention to pass the beneficial interest being all that is required, Hughes v. Chambers, 14 Man. L. R. 163, approved : Re McRae Estate, 6 O. L. II. 238. Parol Assignment. — A present appropriation by order of a par- ticular fund not yet realized operates as an equitable assignment, and a promise or executory agreement to apply a fund in discharge of an obligation has the same effect in equity. A married woman, as agent of her husband, who was indebted for costs to a firm of solicitors, instructed one of the firm, after its dissolution, to sell [GNMENT. 52] certain land and retain the costs out of the proceeds as a first Charge. The land was sold by a new linn, in which one of the old firm was a member: fcleld, that the wife's instructions amounted to an equitable assignment, and thai the solicito entitled to the proceeds of the sale as against an assignee under a written assign- ment of the same, subsequently made. Held, also, thai the trans- action was not a contracl concerning land, inn an agreement to apply the proceeds of land when sold: Heyd v. Miller, 29 O. R. 735. Conditional Assignment. — Although au order operates as an equitable assignment of a debt due to the drawer, and that without any acceptance by the drawee ; still, if the person to whom the order is given accepts it conditionally, agreeing only to give up hit claim against the drawer on the order being accepted and paid, and if not paid to return the order, and he subsequently proceeds against the drawer, in respect of such claim, he cannot afterwards enforce his equitable claim against the drawee: Muir v. Waddcll. 14 Chy. 488. It is no objection to an assignment in equity of a claim against a third person, that the work upon which the claim is to arise has yet to be performed: Buntin v. Gcorgin, 19 Chy. 167. Where a non-negotiable chose in action is absolutely transferred by writing for value, and the transferee again absolutely assigns it tor valuable consideration to another person, who takes it without notice, he obtains a valid title to it free from any latent equity between the original assignor and assignee. In re Agra and Master- man's Bank, L. R. 2 C'i. at p. 397, specially referred to: Quebec Bank V. Taggart, 27 O. R. 162. The plaintiff brought this action for damages for personal injuries sustained by his being run down by a car of the defendants, and for the killing of his master's horse which he was riding at the time, and in respect to which he claimed under assignment from his master: Held, that the action was properly dismissed as to the latter claim upon the ground that it was not an assignable chose in action : J/c- Cormack v. Toronto R. W. Co., 13 O. L. R. 656. A debtor or trustee of a fund is not responsible to an assignee of the creditor or payee of the fund for dealing with the latter persons without reference to the assignment, unless it is found either that at the time of so dealing he actually knew of the assignee's title, or that he had previously received a notice sufficiently distinct to give him an intelligent apprehension of the fact that the assignee had acquired an interest in the claim or fund: Crawford v. Canada Life Assurance Company, 24 A. R. 01". Where an assignment of a chose in action is made by way of security, the assignor retaining a beneficial interest, he may notwith- standing the assignment maintain an action in his own name to re- 522 DEFENCES. cover the debt, the assignee being a proper but not a necessary party : 1'rittie v. Connecticut Fire Ins. Co., 23 A. R. 449. An assignee in order to obtain the benefit of 35 Vict. c. 12 (O.), must take the beneficial interest in the claim assigned. He cannot sue in his own name where the assignment has been made only in order to enable him to bring the action : Wood v. McAlpinc, 1 A. R. 294. Writs of execution only bind moneys, choses in action, or secur- ities for money, from the time of seizure by the sheriff, and not from the time either of the issue of the writs or delivery thereof to the sheriff : McDowell v. McDowell, 10 L. J. 48. Held, by the full Court, affirming the decision of Taylor, J., that an equitable assignment of a chose in action may be made by any words or acts shewing a clear intention to assign ; a deed or writing is not necessary : McMaster v. Canada Paper Co., 1309 M. L. R. (Man.) Held, affirming the judgment appealed from (23 N. S. Rep. 50), that the notice was a sufficient compliance with the statute : Grant V. Cameron, 18 S. C. R. 716. Under the provisions of R. S. O. c. 122, in order to enable the assignee of a chose in action to sue in his own name, the assignment must be in writing, but a written instrument is not required to re- store the assignor to his original right of action : Rennie v. Block, 26 S. C. R. 356. Chose in Action. — Since the Married Woman's Property Act of 1884, a husband may make a valid gift of a chose in action to his wife without the intervention of a trustee. A gift to a person without his knowledge, if made in proper form, vests the property in him at once, subject to his right to repudiate it when informed of it : Sherrat v. Merchants Bank of Canada, 21 A R. 473. See McCabe V. Robertson, 13 U. C. C. P. 471. Under s. 25, s.-s. 6 of the Judicature Act, 1873, there cannot be a valid assignment of an unascertained part of a debt : Jones v. Humphreys; 71 L. J. K. B. 23; (1902), 1 K. B. 10; 85 L. T. 488; 50 W. R. 191 To constitute a good equitable assignment of a debt all that is necessary is that the debtor should be given to understand that the debt has been made over by the creditor to some third person, and if the debtor disregards such notice he does so at his peril: Brandt v. Dunlop Rubber Co., 74 L. J. K. B. 898; (1905), A. C. 454; 93 L. T. 495 ; 11 Com. Cas. 1 ; 21 T. L. R. 710. Where a person in possession of a fund has received notice of an assignment of his rights by one of several persons entitled to I: LtLMENG OH LMPEBTY. 523 charges on the fund, and nevertheless wrongfully makes payment out of the fund to tlic assignor, the rights inter se of the several persons entitled to the charges to what remains of the fund cannot in any way be effected by such payments: Liquidation Pun Estates do. \. WiUoughby, G7 L. .1. Ch. 251; (1898), A. C. 321; 78 L. T. 329. Notice to a debtor who lias given a negotiable instrument for his debt that the debt has been assign* <1 by the creditor can be disregarded by the debtor, even if the creditor who has assigned the debt is the holder of the negotiable instrument: Benrc v. Shearman, G7 L. J. Ch. 513; (1898;, 2 Ch. 582; 78 L. T. 804; 47 W. R. 350. The bailee of a chattel for biro is not, in the absence of want of due care on his part, liable to the bailor for the damage caused to the chattel by the tortious act of the bailee's servant whilst act- ing outside the scope of his employment: Coupe Co. v. Maddick (GO L. J. Q. B. 676; (1891), 2 Q. B. 413). considered and distinguished. Sanderson v. ColUns, 7.°, L. J. K. B. 358; (1904), 1 K. B. G2S ; 90 L. T. 243 ; 52 W. R. 354 ; 20 T. L. R. 249. BAILMENT. Held, that the receipt and the facts in connection therewith con- stituted a bailment of the wheat and not a sale. South Australian Ins. Co. v. Randall. L. R. 3 C. P. 1011, distinguished: Clark v. Mc- Clellan, 23 O. R. 4G5. In action against a stranger for loss of goods caused by his negligence, the bailee in possession of the goods can recover their value, although he would have had a good answer to an action by the bailor for the damages for the loss of the goods: Claridgc v. South Staffordshire Tramway Co. (61 L. J. Q. B. 503: (1892), 1 Q. B. 422), overruled. The Winkfield, 71 L. J. P. 21; (1902), P. 42 ; 85 L. T. 6G8: 50 W. R. 24<; : Asp. M. C. 259. CHAMPERTY. A charitable motive induced by sympathy with the religious views of another person the object of the charity is none the less such a charitable motive as comes within the recognized exceptions to the law against the maintenance forbidding one person to sup- port thai other in his law Suit. I gucere, per Phillimore, J., whether the law against main- tenance has any application to the cases involving questions of the custody of the person: II olden v. Thompson. 7: H7 I.. T. 138; 23 T. L. 1!. 529. There is nothing illegal in a sale by one person to another of information, likely or supposed to be likely, to lead to the recovery 524 DEFENCES. of property, and in an agreement to pay the person selling the in- formation a share of the property if and when recovered. Rut if the seller of the information further contracts that he will himself recover or assist in recovering the property, and provide evidence by which it may be recovered, and will take his remuneration in the form of a share of the property when recovered, the agreement is champertous and void : Wedgerficld v. De Bcrnardy, 24 T. L. R. 497, affirmed, 25 T. L. R. 21 C. A. CONTRIBUTION. The principle of contribution among co-sureties jioes not rest on contract, but upon principles of equity which may be modified by extent to which each has engaged himself: Ostrander v. Jarvis, 13 O. W. R. 375. The doctrine of contribution between joint covenantors is based on a broad principle of equity, or, as it has sometimes been expressed, on an implied contract, and depends on the intention of the parties contracting. Evidence of such intention is admissible after the death of one of such covenantors : Bentinch, In re; Bentinclc v. Bentinck, 80 L. T. 71. DEVOLUTION OF ESTATES ACT. The present Statute respecting the devolution and distribution of estates is Ontario Statutes, 1910, Chapter 56. Under section 3 all real and personal property devolve to and become vested in the per- sonal representative as trustee for the persons by law beneficially entitled subject to payment of debts. So far as such property is not disposed of by deed, will, contract, or other effectual disposition, it must be administered and distributed as personal property. By sec- tion 5, real property is to be administered as if it were personal pro- perty. By section 7 "heir" is equivalent as a matter of construction to " personal representative." In addition to the enactments relating to Dower referred to on page 258, section 9 of the Devolution of Estates Act must be borne in mind. This section provides for an election by the widow. Section 12 defines the interest which a widow shall have in the estate of her husband dying intestate. Sid ion il'.i provides for the distribution of property of a married woman dying intestate. One-third of her estate goes to her husband if she leaves issue, and one-half if she leaves no issue, and subject thereto devolves as if her husband had predeceased her. The rule for the distribution of a person dying intestate is set out in section 30 as follows: — DEVOLUTION Ol ' 525 One-third to the wife of the intestate, and all the residue by equal portions among the children of the intestate, and suf the Devolution of Estates Act, R. S. O. 1887, c. 108, where brothers or sisters are entitled to share of an intestacy, the children of a deceased brother or sister of the intestate are entitled to share per stirpes. Re Colquhoun, 20 O. R. 104, overruled : Walker v. Allen, 24 A. R. 330. The effect of the Devolution of Estates Act and the amendments acted upon by the registration of a caution under an order of a County judge after the twelve months had expired is to place lands of a testator again under the powers of his executors so that they can sell them to satisfy debts: and the expression "in the hands" of executors, as applied to property of the testator, is satisfied if it is under their control or saleable at their instance; the operation of a devise of lands is by the Act only postponed for the purpose of ad- ministration : and the estate does not pass through the medium of the executors, but by the operation of the devise : Ianson v. Clyde, 31 O. R. 57f>. Where a devise of real estate is made subject to the payment of an annuity, and the devisee accepts the devise, he will be deemed to 526 DEFENCES. have assumed a personal liability to pay the amount which will be enforced by the Court: Carter V. Carter, 26 Chy. 232. Where executors are given express power to sell lands, whether coupled with an interest or not, such power can be exercised by a surviving executor. The Devolution of Estates Act and amendments do not interfere with an express power of sale given by a will to executors extending beyond the periods of vesting prescribed by these Acts: In re Koch and Widcman, 25 O. R. 262. A testator, dying in 1895, gave his estate (subject to his wife's life interest) to his brothers and sisters, share and share alike. One brother was living in 1S85, but had not been heard of for more than seven years before the death of the testator. There was no evidence that he was in fact dead, nor that he survived the testator. Letters of administration to his estate were granted in 1903, upon the pre- sumption that he was dead: Held, that the onus of proof that he survived the testator lay upon those who claimed under him; and, there being no evidence that he survived, the administrator of his estate failed to establish any right to share in the testator's estate, and distribution among the other legatees or their representatives was ordered, subject to their undertaking to refund, should it be estab- lished at some future time that the absentee or his representative was entitled : In re McNeil, 12 O. L. R. 208. Sections 14 and 15 of the Devolution of Estates Act, R. S. O. 1897. c. 127, as amended by 2 Edw. VII. c. 17, apply where the in- terests of infants as well as those of adults are to be affected ; and where, upon an intestacy, laud has vested in an adult and an in- fant (the heirs of the intestate), after three years from the death of the intestate, the land not having been disposed of or conveyed by the administrator and no caution having been registered under s. 14, after the expiry of that period, upon the certificate of the official guardian approving of and authorising the caution to be registered being given and registered with the caution, the effect under s. 15 is to re-vest land in the administrator, just as if it would have been or remained vested if the caution had been registered within the three years; and the administrator with the consent of the official guardian, acting on behalf of the infants, may then sell and convey as provided in s. 16: Re Bowerman and Hunter, 18 O. L. R. 122, 13 O. W. R. 891, DONATIO MORTIS CAUSA. A., shortly before his death, gave his wife a box containing cer- tain things, under circumstances which would amount to a donatio mortis causa of the box and contents. In the box was a deposit re- ceipt for £300, which A. had in the bank. Held, that this receipt being only evidence of a debt, and not a document that could have been transferred so as to make the bank liable to a third party, this DONATIO MOBTI8 I IA1 .-A. 527 money did not pass Co i h<- wife as a donatio mortis causa. See Aniss v. Witt, '■'>'■'> Beav. U19, that money due on a banker's deposit note passes as a donatio mortis causa by the delivery of the note: Ex parte Orrou; 5 All. 512 (N.B.). To effect a donatio mortis causa delivery to a third person for the use of the donee is sufficient, provided that such third person is not a mere truster, agent or servant of the donor. The assent of the donee, or even his knowledge of the delivery, is not requisite. De- livery of the keys of the desk containing the property to be donated constitutes an actual delivery of such property, and transfers the •. followed: Charlton v. Brooke. 5 O. L. R. 87. To effect a mortis causa donatio it is not necessary that there should be a personal delivery to the donee, but the donation may be effected by delivery to a third party on behalf of the donee: Hutchie- son's Executrix v. Shearer (1009), S. C. 15. An I. O. U. cannot be the subject of a donatio ynortis causa: Duckworth v. Lee (1899), 1 Ir. U. 405. A cheque drawn by the donor and given but not resulting in payment, either actual or constructive, in the donor's lifetime, can- not be the subject of a valid donatio mortis causa : Hewitt v. Kai/c (37 L. J. Ch. 633; L. R. 6 Eq. 198), and Beak's Estate. In re; 528 DEFEXCES. Beak v. Beak (41 L. J. Ch. 470: L. R. 13 Eq. 480), followed. Bromley v. Brunton (37 L. J. Ch. 002: L. R. 6 Eq. 275), explained. Beaumont. In re; Beaumont v. Eubank, 71 L. J. Ch. 478; (1002), 1 Ch. 880 ; 86 L. T. 410 ; 50 W. R. 380. DUPLICATE INCORRECT. When a written instrument is made in duplicate, all that one contains more than the other is non-existent so far as the holder of the latter is concerned. In order that secondary evidence may be admitted of a document it is not necessary to shew that It was lost by no fault of the party or unforeseen accident ; it is sufficient to shew to the satisfaction of the Court that it is impossible to find it, and that it has not been purposely destroyed : Lefrance v. Larochelle, Q. R. 27 S. C. 153. DURESS. Absence of Duress. — The fact of a payment having been made under protest, but without duress, or assent on the part of the payee to any reservation of his right, would form no ground for an action to recover back the money : Doe d. Morgan v. Boyer, 9 U. C. R. 318. See St. Thomas v. Yearsley, 22 A. R. 340. Where duress is alleged it must be manifested that force preponderated throughout, eo as to disable the one interested from acting as a free agent : Lawless v. Chamberlain, 18 O. R. 206. FORBEARANCE TO SUE. Ever since Callister v. Bischoffstein, L. R. 5 Q. B. 449, at least it has been the law that " if a man believes bona fide he has a fair chance of success ue has a reasonable ground for suing and his for- bearance to sue will constitute a good consideration." In Ex. p. Banner, 17 Q. B. D. 480, some doubt seems to have been cast upon this principle (see p. 490), but this doubt is in turn spoken of with disapproval by the Court of Appeal in Miles v. New Zealand, etc., Co., 32 Ch. D. 266 ; and there can be no doubt that the law is as stated by Cockburn, C.J. : Drewry v. Percival, 1 O. W. N. 72. FOREIGN LAW. See also p. 62, ante, The defences that may be set up in an action in Manitoba on a foreign judgment by virtue of s.-s. 1 of s. 38 of the King's Bench Act, R. S. M. 1002, c. 40, are not limited to such as might have been, but were not, pleaded in the original action, but include such as were actually pleaded there, subject to the power of the Court or a Judge to strike them out on the ground of embarrassment or delay; and a motion to strike out defences was refused. Gault v. McNabo, FOREIGN LAW PORQ] 529 1 Man. L. R. 35, distinguished. Meyer* v. Prittie, 1 Man. L. R. 27, not followed. British Linen Co. v. McEwatl, 8 Man. L. K. 99, cussed: llickty v. Legresley, 15 Man. L. It. 304. Parties to a contract are presumed to adopt the law of the place where it is made as governing the nature of the obligations that spi from it and the incidents which arise in the course of its develop- ments: German Savings Bank v. Tttrault, Q. R. 27 S. < '. 117. A stipulation or covenant in a contract that it shall be governed by the laws of a foreign country is valid and binding. Under the law of England, a stipulation in a charterparty that the owner or char- terer of the vessel shall not be liable for damages to the goods carried, caused by improper and even negligent stowage, is valid and binding : Canada Sugar Refining Co. v. Furness-Withy Co., Tellier v. Furncts- Withy Co., Dobell v. Furness-Withy Co., Q. R. 27, S. C. 502. In an action brought in a County Court in the Province of Ontario upon a judgment recovered in a Circuit Court in the Province of Quebec, against an incorporated company, who, at the time the Quebec action was begun, had no office or agent in the Province of Quebec: Held, that the Act of the Legislature of the Province of Canada. 22 Vict. ch. 5, sec. 58, is not now in force, and Court v. Feott (1881), 32 U. C. C. P. 148, is no longer applicable; the binding effect of the judgment sued on depended upon the rules of interna- tional Law, and the defendant company not having been domiciled or resident in Quebec when served with the writ of summons, the judg- ment there obtained musi be treated in the Courts of Ontario as a nullity. Vezina v. Will 11. Newaome Co., 14 O. L. R. 658. Codd v. Delop, 92 ].. T.. followed. There is no conflict between the above decision and the judgment of the Court of Appeal in Woodruff v. Maclennan, 14 A. R. 242. as thai case turned upon a different state of facts and did not call in question the principle of the decision of the English Court of Appeal in Abouloff v. Oppenheimer, 10 Q. I>. D. 295. Trimble v. II ill. 5 App, ("as. .",42. referred to: Jacobs v. Beaver Silver Cobalt Mining Co., 17 O. L. R. 496, 12 O. W. R. 803. FORGERY. In an action to set aside n bill of sale of a mineral claim on the ground that it was forgery by one of the defendants, evidence was given by the plaintiff and his witnesses as to matters which, whether rial or not, were intended to make the Ji; i readier credit to the plaintiff's case. For the defence witnesses were allowed to 530 DEFENCES. give evidence shewing that the plaintiff and his witnesses in respect of the same mineral claim had been parties or privy to a fraudulent transaction involving perjury and conspiracy, and tending to shovv that a like fraudulent scheme was being attempted in this case, and the result was that the Judge was so influenced by this evidence that he gave judgment for the defendants : — Held, that the evidence on behalf of the defendants was properly admitted : D' Avignon v. Jones, 32 S. u. R. 650. FRAUD. Proof of fraud. To go to jury. Interest on money ob- tain' fraud. Damages. See Action for Deceit, ante page 394, and Action for Fraudu- lent Preference, ante page 39S. In order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false : Berry v. Peek, 14 A. C. 374 ; Angus V. Clifford, (1891) 2 Ch. 463. Whatever be the form of the contract, the party who makes an allegation of fraud is entitled to have the question submitted to the jury: Pearson v. Dublin Corporation, 77 L. J. P. C. 1 ; (1907) A. C. 351, H. L. (Ir.). Money obtained by fraud can be recovered with interest, whether the proceedings be taken in a Court of equity or in a Court of law. But the fraud must be proved in the proceedings by which the money is recovered, otherwise no interest will be allowed ; and it is not sufficient that the fraud has been proved in other proceedings in a criminal Court: Johnson v. Regent, 73 'L. J. P. C. 113; (1904) A. C. 817; 91 L. T. 196; 51 W. R. 131. Where a person lias been induced to sign a promissory note by a fraudulent representation that he is witnessing a deed, and at the time he signs it he believes he is witnessing a deed, and has no knowledge of the existence of a promissory note, and the jury negative negligence upon his part in so signing the document, he is not estopped in an action brought against him upon the note by the payee of the note from relying upon the true facts as a defence, and such facts afford an answer to I lie action : Jjewis v. Clay, 67 L. J. Q. B. 224, 77 L. T. 653, 46 W. R. 310. The only damages recoverable in an action of deceit based upon representations inducing the plaintiff to purchase property, are the difference between the price paid for the thing purchased and its real value, and when Ihe plaintiff has sold the property at a profit, he can recover no damages, although he has failed to realize the profit he could reasonably have expected if the representations had been FRAUDS, STATOT E OF. 53] J true: Peek v. Derry, 37 Ch. 1>. 541, 11 App. Oas. 331 : JfcConnel \. HViy/i< (1003), 1 Ch. 646, and Steelt v. 1'rih Intnl. 17 Mail. I.. R. 226, 7 W. L. R. 108, followed. Rosen v. Lindsay, '< W. I.. R. 546; 7 \V. L. it. 115, Man. L. It. 251. In considering whether a conveyance is fraudulent ami void Whole within the statute V.l Eliz. c. 5, the Court must look ai the whole circum- stances of the circumstances surrounding!; the execution of the conveyance an 1 to be see whether it was in fact executed with the intent to defeat and looked at. delay creditors: Holland In re, Gregg v. Holland, 71 L. J. Ch. "il^. (lf)02) 2 Ch. 360, 86 I.. T. 542, .".(> W. R. 575, !> Manson 259. Although i In- object with which a conveyance of property is placed in the name of another may be to protect it against the creditors of the actual purchaser, yet the property belongs to the purchaser: Gibbons v. Tomlinson, 21 O. R. 4S9. A creditor for an amount under $40 cannot attack a conveyance of land as voluntary or fraudulent: Zilliax v. Deans, 20 O. R. 539. The right of a person defrauded under the Statutes of Elizabeth How right to elect to avoid a deed as fraudulent, may be lost in either of the to av °id may be following ways : lost. 1. It may be lost by the deed having become for value by a con- sideration ex post facto before any steps are taken by that person to impeach it. 2. The voluntary grantee may have divested himself of the pro- perty by a bona fide transfer of it for value to a bona fide purchaser for value without notice of fraud. The case of Masurct v. Stcivart. 22 O. R. 290, on doctrine of following the proceeds, distinguished : Tennant v. Galloic, 2Ci O. R. Gl. FRAUDS, STATUTE OF.* See also Action on Sale of Real Property, p. 201 ; Action on Gtjabantee, p. 248; Actions relating to Sale of Goods, p. 270. See also Contracts by Correspondence, page 537, post. The authority of an auctioneer upon a sale by auction «>f real Auction- estate to sign a memorandum of the contract as agent for the pur- eers clerk. chaser, does not extend to the auctioneer's clerk. Such a memor- andum in order to bind the purchaser by the auctioneer himself, and at the time of sale unless the purchaser has by sign, word or other- * For convenience of reference sections 1. 7. 9 and 1«; of tin- Statute of Frauds are printed as they appear in Vol. 111. of the Revised Statutes of Ontario, 1897 : — 5. No action shall be brought whereby to charge any executor or administrator, upon any special promise to answer damages out of his 532 DEFENCES. wise authorized the clerk to sign as his agenl : Bell v. Balls (1897), 1 Ch. G63. Where at a sale the highest bidder for a lot gave his name and address to the auctioneer's clerk, and followed him to the table, where the clerk filled in the blank in the printed memorandum with L.'s name and address, but L. refused to sign the memorandum, and ulti- mately refused to complete the sale: Held, binding on L. -.Sims v. Landry (1894), 2 Ch. 318. . , , Where an agent appointed by parol to purchase, purchased in his chasing. own name with his own name, and took the conveyance to himself and denied the agency : Held, that section 7 of the Statute of Frauds was a good defence: James v. Smith (1891), 1 Ch. 3S4. Where a house was let on an oral tenancy, and there was an oral tension of agreement to extend the tenancy beyond the year : Held, that the tenancy. oral agreement was invalid under the Statute of Frauds, there being no other demise: Sidebotham v. Holland, C. A. (1895), 1 Q. B. 378. Possession taken before but continued after a parol contract for a Possession taken. lease, may, if unequivocally referable to the contract, constitute part No action own estate, or whereby to charge the defendant upon any special ecutors tX P rom ise to answer for the debt, default or miscarriages of another etc., upon person, or to charge any person upon any agreement made upon con- a special sideration of marriage, or upon any contract or sale of lands, tene- orupon ments, or hereditaments, or any interest in, or concerning them, or any agree- Q a agreem ent that is not to be performed within the space of lnt-nt or contract one year from the making thereof, unless the agreement upon which for sale of sucn ac tion shall be brought, or some memorandum or note thereof, llllfl** fete unless ' shall be in writing, and signed by the party to be charged therewith, agree- or some person thereunto by him lawfully authorized. 29 Car. 2. ment, etc., _ . be in writ- c - ,:i > s - 4 - 6. All declarations or creations of trusts or confidences of any signed. i an ds, tenements or hereditaments, shall be manifested and proved by ' '' some writing signed by the party who is by law enabled to declare ilOTIS Or creations such trust, or by his last will in writing, or else they shall be utterly of trusts of id and of none effect- 29 Car. 2, c. 3, s. 7. land to be in writing 8. All grants and assignments of any trust or confidence shall signed. likewise be in writing, signed by the party granting or assigning the a ' t same, or by such last will or devise, or else shall likewise be utterly ments or ' J trustsshall void and of none effect. 29 Car. 2. c. 3. s. !>. 12. No contract for the sale of any goods, wares or merchandise mg. for the price of forty dollars, or npwards, shall be allowed to be good, In what , , , , ,. nlv except the buyer shall accept part of the goods so sold, and actually contracts receive thi or give something in earnest to bind the bargain, JOT ."-Jl I'* - ' 'f * • • or in pari of payment, or that some note or memorandum in writing §40 or of the said bargain be made and signed by the parties to be charged ling ^ b y such contract or their agents thereunto lawfully authorised. 29 Car. 2. c. 3, s. L6. ;i; \i'!)>. 8T LTD I E of the performance, taking the case out of the Statute of Fraud-.: Hodson v. Houland (1896), 2 Oh. 428. A devise of cenl to an attesting witness is void under 25 Geo. II. J'' • c. 6, s. 1. Rent issuing oat of land is a tenement, i ( partakes of the nature of land, and is within the nth section of the Statute <>f Frauds, and hence is also within 25 e li\ery specific direction or authority from the vendee will not amount to an tut acceptance by the latter within the Statute of Fraud-: Daley v. Murk-:. Ber. (524) 346 (N.B.). A contract not in writing entered into on the 26th .May Supplying for the supply of a regiment with groceries for a year from the wlt'h^oods 1st June following, subject to be sooner determined in case the regi- ment should leave the Province, is void under the Statute of Frauds : Reid v. Harditifj, 2 Han. 137 (N.B.). An agreement for the sale of land good under the Statute of Frauds may be rescinded before Resc. breach of it by parol, provided there is a total abandonment of the whole contract and not merely a partial waiver of some of its terms; nor does the validity of such rescission depend on the existence of a consideration: Barclay v. Proas, R. E. D. 317 (N.S.). A sale of goods by a sheriff or his bailiff under execution is within s. 17 of kneritt power to the Statute of Frauds, and either of them may sign for the purchaser sign. the memorandum in writing in the same manner as an auctioneer or his clerk: Flintoft v. Flmore, 18 0. P. 274. A writing containing a Writing statement of all the terms of a contract for the sale of goods requisite thouch^re- to constitute a memo., under the 17th section of the Statute of pudiation. Frauds, may be used for that purpose though ii repudiates the sale. Judgment appealed from (22 Ont. App. R. 468) affirmed: Martin v. Haubner, 26 S. C R. 142. A partnership may be formed by a parol Partner- agreement notwithstanding it is to deal in land, the Statute of Frauds '''■ not applying to such a case. Judgment appealed from (6 B. C. Rep. 260) affirmed. Gwynne and Sedgewick. J.T.. dissenting: Archi- bald v. McNerhanie, 29 S. C. P. 564. Where payment is to be a Pa ^?5 nt condition condition precedent or a concurrent act, and is to be made in a cer- precedent. tain manner, the plaintiff must aver a readine in the pi' manner stipulated: Tanner v. D'Everardo, '■'• F. ( '. R. 154. The position of a defendant resisting a claim is more favourably con- Defendant sidered than that of a plaintiff endeavouring to enforce an agreement, the terms of which may not have been defined so as to clearly satisfy the requirements of the Statute of Frauds: Latorence v. Errincjton. 21 Ghy. 261. An antenuptial contracl not signed by the parties, but A ". snap- .... ' 1 1 a 1 © ii- by notaries in their own names, they having full authority to do so, tract. was held sufficiently signed within the Statute <>f Frauds: Taillifer v. Taitlifer, 21 O. R. 337. An agreement to provide the plaintiff with board and lodging during the term of his natural life: Held, not 534 DEFENCES. Board for within the statute, as it would not necessarily endure beyond a year: life - Slater v. Smith. 10 U. C. R. 630. The Court will enforce a verbal agreement, although it is to do an Act which is not to be performed jdera- xvirllin a >' (>:lr f,oin tno timc °^ making the agreement, where the consideration therefor has been executed: Halleran v. Moon. 2S Chy. of. 319. Hiri Held, that a contract for hiring for a year or more, defeas- ible within the year, is within s. 4 of the Statute of Frauds: Booth v. Prittie, 6 A. R. 680. To an action for a breach of promise of marriage, the plaintiff swore that "it was to be a year's engage- Breach of ment, and we were to be married in the following August :" Held, promise of tnat tn j s was not an agreement not to be performed within a year, and was therefore not void under the statute although not in writing : Smith v. Jamieson, 17 O. R. 626. Where an agreement contains the , names of the two contracting parties, the subject matter of the Unilateral , ,, . .,.,.,. ., , .. contract, contract and the promise, it is binding on the party signing it, although not signed by the other party : Bank of British North Accept- America v. Simpson, 24 U. C. C. P. 354. An acceptance in writing ance of b tne owner f i anc j f a written offer therefor addressed to him, unsigned . , , . . offer. but unsigned by any purchaser, and without any purchaser being named or in any way described therein, is not a sufficient memoran- dum to satisfy the statute, and does not become binding upon him when a purchaser is subsequently found who signs the offer : Mcintosh v. Moynihan, 18 A. R. 237. Contract Contract not to be performed within a year: Wier v. Lctson, 3 not to be R. & Co. 200 (X.S.) The Statute of Frauds does not apply to wTtMna^ a contract which has been entirely executed on one side with- year. in the year from the making, so as to prevent an action being brought for the non-performance on the other side. And there- fore, where the plaintiff delivered sheep to the defendant within a year from the making of a verbal contract with the defendant, under which the latter was to deliver double the number to the plaintiff at the expiration of three years: Held, that the con- tract was not within the statute: Trimble v. Lanktree, 25 O. R. Printing 109. A contract to print debentures in a special form on paper debentures supplied by the printers is a contract for the sale of goods and chattels, and not a contract for work and labour and materials, and is within the Statute of Frauds: Canada Bank Note Co. v. Toronto R. W. Co., 22 A. R. 462. The plaintiff on the 20th July agreed with defendants verbally to enter their service as book-keeper on the 1st September following for a year from that date: Held, a contract not to be performed within a year from the making thereof: Dickson v. Jacques, 31 U. C. R. 141. As a general rule a contract for the Saleof sale of standing timber, which is not to be severed immediately, is a timber. sa le of an interest in land : Handy v. Carruthers, 25 O. R. 270. i i; LI i'-. STAG in. OP. 535 The construction of a mercantile contract is for the Court unlei it contains words of a technical or conventional use in the n ' f ., mere which the contract relates: Vordhetmer v. Robinson, 'J. A.. B. 305. contract. The rule that :t contractor is bound by a condition in bis contract Engineer making the employer's engineer the interpreter of the contract, and »n at the arbiter of all disputes arising under it. docs not extend to a case where the named engineer, while in fact the engineer of 1 1 » « - employer, is described in the contract as and is supposed by the contractor to be the engineer of a third person: Coor more is defeasibli ' or more, within ili' 1 year, and within section 4 of the Statute of Frauds: Booth \. Prittie, 6 A. B. 680. An offer by a purchaser at auction to sell to another person the Offi goods purchased by him does not constitute an acceptance of them to take the case out of the Statute of Frauds: Clarkson v. Noole, another. 2 U. 0. it. 361. Treating the action as one for specific performance of a contract, Agree- it must fail against the wife the owner of the land; there was no {^",.^1 1 „ contract with her; the Statute of Frauds was as to her a good de- convey fence; for the deed signed by her merely to bar her dower, was not m '" '" intended by her to authenticate any contract for the sale by her of land to the plaintiff; and there was no part performance by her. Lacroiw v. Longtin, 22 O. R. 506. In an action against a Limited Company, plaintiffs having no Action notice of by-law restricting authority of president of company: Held, cfj^y that the signature of the president was sufficient under the Statute of Frauds to bind the company: Standard Haul; v. Thomaa Limited, 1 O. W. N. .",48.* CONTRACT BY CORRESPONDENCE. See also ante page 205 under Contracts for Sale of Land, and iding paragraphs page 531 et seq. Where it is sought to establish a contract from a correspondence, the whole of the correspondence which has taken place between the parties must be taken into consideration; accordingly where a letter written by plaintiff to defendant and replied to by the latter made a complete contract, but before the contract was performed, or there was any breach, other letters passed between the parties, from which it ap- peared that both parties still treated the matter as being in negotia- tion: Held, that there was no binding contract: Jones v. De Wolf, Vol. 23, 356 (N.B.). Where a Court has to find a contract in a cor- * If in the course of a ease it is intended to suggest that witness Action on is not speaking the truth upon a particular point, his attention must sale of be directed to the fact in cross-examination shewing that that imputa- Absence of tion is intended to be made so that he may have the opportunity of . . . , . ,. ..... animation. making any explanation which is open to him unless it is other perfectly clear thai he has had full notice beforehand that ther an intention to impeach ility of his story or the story is of an incredible or romancing character: Browne V. Dunn (1893), '! R. 67. 538 DEFENCES. respondencc and not in one particular note or memorandum formally signed, the whole of what has passed between the parties must be taken into consideration: Hussey v. Home-Payne (4 App. Cas. 311), North- West Transportation Co. v. McKenzie, 25 S. C. R. 38. Where a con- tract is to be made out from letters and telegrams, it is not essential that each should refer in terms to the preceding one, but the connection may be made out even from the subject-matter of the correspondence so long as it appear that all relate to the same contract: Ballantyne v. Watson, 30 C. P. 529. In the construction of a contract arising out of letters and telegraphic communications, the party making the proposal must be considered as renewing his offer every moment until the time at which the answer is to be sent and then the contract is completed by the acceptance of the offer : Thome v. Barwick, 16 U. C. C. P. 369. In the construction of a contract by letters, it is not necessary that there should be an express assent, but the requisite assent may be collected by implication from the whole terms of the correspondence : Bruce v. Tolton, 4 A. R. 144. A contract by correspondence is made at the place where the acceptance is sent by letter or telegram to the party making the offer : Schmidt v. Croice, 5 Q. P. R. 361. Offer without Prejudice. — A letter containing an offer written " without prejudice," means " I make you an offer ; if you do not accept it this letter is not to be used against me," but when the offer is accepted the privilege is removed : Omnium Securities Co. v. Richardson, 7 L. R. 182. To a written offer to sell some flour on certain terms, the follow- ing telegram was sent : — " Letter received, offer accepted, writing." No letter was written : — Held, that there was a completed contract : Dalrymple v. Scott, 19 A. R. 477. When a proposal is made in writing by one party and accepted ad idem by the other, either verbally or by acting upon it, the con- tract is a written one : Ellis v. Abell, 10 A. R. 226. Letter signed by purchaser on paper on which vendor's name and address printed, held that the printed heading formed no part of the letter. The object of such a heading is to give information as to the place to which any reply is to be given: Huckles'by v. Hook (1900), 82 L. T. 317. An envelope and a letter, which is shown by evidence to have been enclosed in it, are so connected together that the envelope may be used to supply the name of one of the parties to a memorandum in writing of a contract within section 4 of the Statute of Frauds : Pearce v. Gardner, C. A. (1897), 1 Q. B. 688. As a written memorandum of an oral guarantee is required only for the purpose of evidence, a letter or other writing subsequently given by the guarantor sufficiently shewing the terms of his under- taking will suffice. A letter showing the terms written by the guar- CONTBACT BY CORRESPONDENCE. antor, partly on his own behalf and partly on behalf of a firm of debtors, and signed by him in the firm name and in his own name for them per proe., is sufficient to bind him : Thomson v. Eede, 22 A. R. 105. A letter referring to the terms "f :i contract made by an agent. but denying tin- authority of the agent to make it, is a sutlicient memorandum within the Statute of Frauds: llaubmr v. Martin. 22 A. R. lt;s. 26 S. 0. R. L42. The acceptance of an offer must be expressed nut impli Harvey v. Facey (1893), A. C, followed: Little v. Ilanbury, 14 H. C. R. IS: 9 W. L. R. 115. See Central Vermont v. Dube, Q. It. 35 S. C. ISO: Sumner v. Cole, 30 S. C. R. 379; Keatir.a v. Dillon. Q. R. 28 S. C. 323. In negotiations carried on by correspondence it is not necessary for the completion of the contract that the letter accepting an offer should have actually reached the party making it, but the mailing in general post office of such letter completes the contract, subject to revocation of the offer by the party making it before receipt by him of such letter of acceptance: Magann v. Auger, 31 S. C. R. 1SG. Although it is settled law that an offer is to be deemed accepted when the letter containing the acceptance is posted, yet a town posur.an is not an agent of the Post Office to receive letters: London and Xorthern Ban!:. In re; Jones ex parte, 69 L. J. Ch. 220: 81 L. T. 512. A contract for the sale of lumber was made wholly by corres- pondence, and the letter which completed the bargain contained the following provision: "The inspection of this lumber to be made after tue same is landed here (at Windsor) by a competent inspector to be agreed upon between buyer and seller, and his inspection to be final." Held, reversing the judgment of the Court of Appeal, that it was not essential for the parties to agree upon an inspector before the inspection was be;nin ; and a party chosen by the buyer havinf inspected the lumber, and before his work was completed the seller having agreed to accept him as inspector, the contract was satisfied and the inspection final and binding on the parties: Thomson r. Matheson, 30 S. C. R. 357. A contract by letters completed at place where letters arrived: Uattrrson v. Beaudoin, 11 Que. P. R. 86. A contract by telegram is made at the place where the telejrram of acceptance i< sent from: Melody v. Jenkins, IS (). L. R. 251. A letter in which the writer promises to "favourably consider an application" for the renewal of a subsisting contract, "if we are satisfied with you as a customer," does not constitute a contract or agreement susceptible of legal enforcement: Montreal Cas Co. j. Tasey, 69 L. J. P. C. 134; (1900) A. C. 595: 83 I.. T. 233. 540 DEFENCES. GIFT OF CHATTEL. Actual delivery of the thing is a necessary ingredient of a valid parol gift, or, in other words, a gift is a transaction consisting of • >ntt>mporaneous acts, the giving and the acceptance, and these acts cannot be completed without an actual delivery of the subject of the gift. Irons v. Smallpiece, 2 B. & Aid. 551, Cochrane v. Moore, 25 Q. B. D. 57, and Re Bolin. 136 N, Y. at p. 180, followed: Hardy v. Atkinson, IS Man. L. It. 351, 9 W. L. R. 564. An imperfect gift of personality by a donor who" dies shortly afterwards will be made effectual by the appointment of the donee to be the donor's executor, even if he is only one of several executors. The rule laid down in Strong v. Bird (43 L. J. Ch. 814; L. R. 18 Eq. 315) applies not only to cases of release of debt, but also in cases of imperfect gift. Strong v. Bird (supra), followed: Stewart, In rr; Stewart v. McLaughlin, 77 L. J. Ch. 525; (1908) 2 Ch. 251; 99 L. T. 106; 24 T. L. R. 679. ILLEGALITY. Ex turpi causa non oritur actio. — The plaintiff, a bookmaker, placed £107 6s. Sd., the proceeds of street betting, in a house occupied by a person who assisted him in his betting transactions. The house in question having been searched by the police under warrant issued under s. 11 of the Betting Act, 1853, the £107 6s. 8d. and a number of betting slips were seized and retained by the police for the purposes of certain proceedings taken against the plaintiff and others. In those proceedings the plaintiff was acquitted, and he now sued the defend- ant for detaining the £107 6s. 8d. : — Held, that the action was based upon an illegal transaction, and therefore was not maintainable : Gordon v. Metropolitan Police Commissioner, 54 S. J. 2S8, 26 T. L. R. 274. Any use of property, which would be legal if due to a proper motive, can become illegal if it is prompted by a motive which is im- proper or even malicious: Bradford v. Pickle* (1895), A. C. 587. Test for Where a contract is illegal or immoral it cannot be enforced. in pari The maxim of in pari delicto potior est conditio defendentis is im- portant in considering the question of illegality. The test for deter- mining whether or not the plaintiff and defendant were in pari delicto is by considering whether plaintiff could make out his case otherwise tnan through the medium and by the aid of the illegal transaction to which he was a party : Taylor v. Chester, L. R. 4 Q. B. 309. In an action for work and labor the illegality of the transaction will be a defence. A party will not be permitted to recover either for work and labor done or materials provided where the whole combined forms delicto. ILLEGALITY. 541 one entire subject-matter made in violation of the provisions of an Act of Parliament: Bemley v. Bignold, ~< B. & A. 335. \ which amounts to maintenance is illegal, and cannot be enforced: bradlaitf/h v. Netodegate, 11 Q. B. D. 1. In order that a deed ing under the Statute of Dses should be void either under i\f Statute of Maintenance or by force of the common law in affirmance of which the statute was passed, it is essential that the grantor be disseized. The <'ro\vn cannot be disseized : ITYM v. Marsh, 22 S. C. >'<■ at p. 441. No action lies for goods knowingly sold for illegal pur- poses. An agreement not to prosecute for a criminal offenc Illegal : but. unless given in pursuance of such an agreement, securities given to a creditor by a debtor whose debt has been contracted under such circumstances that might have rendered him liable to a prosecu- tion, may be enforced: Flotcer v. Sadler, 10 Q, B. D. 572; Davis v. Eetoitt, 9 O. R. 435; tiummerfeldt v. Worts, 12 O. R. 4S. R. S. O., 1S97. c. 24G, "An Act to Prevent the Profanation of Lord's the Lord's Day," prevents sales or ordinary work on Sunday. By ^ av '^ ct - section 9 all sales and agreements made on Sunday are void. The English Act on the same point is 29 Charles II., c. 7. A farmer does not come within the provisions of this statute : a " farmer " is made subject to the provisions of R. S. O. c. 246 : see Crosson v. Bigley, 12 A. R. 94. A cab-driver is not included in the Act: Reg. v. Somers. 24 O. R. 244. Injunction refused applied for to restrain a street railway company from operating their road on Sunday: Atty.- Oen. v. Niagara Falls, etc., Co., 18 A. P. 453. Pay of performance of a contract falling on Sunday, effect considered: Oudney v. Chiles, 20 O. R. 500. Held, that the words "or other persons whatsoever" are appli- cable only to persons who are ejusdem generis with those specifically named, and do not include a farmer engaged in farm work: Hamren v. Uott, 5 Terr. L. R. 400. All contracts in restraint of trade are bad, unless they are natural Restraint and not unreasonable for the protection of the parties in dealing of trade. legally with some subject of contract: see Mitchell v. Reynolds. 1 Sm. L. C. : Wicher v. Darling, 9 O. R. 311; Schroder v. Lillis, 10 O. R. 358; Turner v. Burns, 24 O. R. 28; Cook v. Shan: 25 O. R. 124. Where a covenant in restraint of trade is general, that is. without qualification, it is paid as being unreasonable and contrary to public policy. Where the covenant is partial, that is qualified, either as to time or space, then the question arises whether it is reasonable or not. Whether the covenant is unreasonable, depends on whether the re- straint is or is not greater than can possibly be required for the pro- tection of the covenantee. Where a covenant is limited as to time, the burden lies on the covenantor of showing that the restraint is ]i, m ien of unreasonable: Badisrhe Anin v. Sehott (1S92K 3 Ch. 4 17. proof. 542 DEFENCES. The defendant sold to the plaintiff the good will of the business of an innkeeper, which he was carrying on in London, in this prov- ince : — Held, that a covenant in the agreement that the vendor should pay $4,000 in the event of his carrying on business as an innkeeper within ten years, was void as an undue restraint of trade: Mossop v. Mason, 18 Chy. 453. On the purchase of a manufacturing business by the plaintiff from the defendants, the latter entered into a covenant with the plaintiff which was part of the terms of sale, that they would not engage directly or indirectly in the manufacture or sale of " bamboo ware and fancy furniture, either as principal, agent, or employee, at any place in the Dominion of Canada for the term of ten years from the date hereof." " This clause does not prevent " defendants " from engaging in the retail business of furntiure and bamboo ware selling. It covers wholesale or jobbing business :" — Held, that as the restraint of trade was partial only, being confined to manufac- turing certain articles and to selling them by wholesale or by jobbing, and for a limited time, and as there was no evidence on which it could be held to be unreasonable, and the interests of the public were not interfered with, the agreement was not contrary to public policy : Cook v. Shaw, 25 O. R. 124. A party to a contract who alleges fraud cannot avoid one part of the contract and affirm another, unless the parts are severable as to form independent contracts. Restraint of trade and therefore void at law is a question of law for the determination of the Court : raited Shoe Manufacturing Co. v. Brunei, 78 L. J. P. C. 101; (1909) A. C. 330; 100 L. T. 579; 53 S. J. 390; 25 T. L. R. 442. The rule of law, that all covenants in restraint of trade, or bind- ing an individual not to earn his living in the best way he can, are prima facie contrary to public policy and void, has not been rescinded by recent decisions ; and, in considering the reasonableness of such a covenant for the protection of the business of the covenantee, the question must be taken into account whether the particular covenant is such as to be calculated to injure the public, the interest of the public in maintaining fair dealings between man and man not being sufficient to counterbalance the disadvantage to the public in enforcing a covenant which the covenantor ought to have been required to enter into The principles laid down in Nordenfelt v. Maxim Nordenfelt Gun and Ammunition Co. (83 L. J. Ch. 908; (1894) 6 A. C. 535) and Dulowski v. Goldstein (65 L. J. Q. B. 397; (189G) 1 Q. B. 478) applied. Ward v. Byrne (9 L. J. Ex. 14; 5 M. & W. 548) distinguished: Underwood v. Barker, 68 L. J. Ch. 201; (1898) 1 Ch. 300; 80 L. T. 306; 47 W. R. 347. So long as a covenant in restraint of trade in not more than i a necessary for the protection of the covenantee the covenant is ILI.K0AI.1TV 543 net anreasonable and must be enforced: Dotridgi v. Crook, 23 T. L. R. 644. The question whether a contract In r-st raint of trade is reason- Qu, able is a question of law for the Jndge, and is not a question of o f law. fact for the jury. In deciding the question all the Burrounding cir- cumstances ought to be taken into consideration, and are admissible in evidence; and if an issue of fact arises as to the circumstances, the jury is the proper tribunal to decide that issue: Dowden & Pooh Urn. v. Pooh 73 L. .7. K. B. 38: (1904) 1 K. B. 4.',: 89 L. T. 688; 52 \V. K. 97; 20 T. L. R. 38. The plaintiff and defendant wen- engaged as partners in the business of nurserymen and fruit sellers. Upon dissolving partnership, the plaintiff continued the fruit branch and the defendant the nursery branch, each agreeing that for ten years he would not engage in the kind of business to be done by the other. The defendant's covenant was that he would not compete with the plaintiff in the fruit business, provided the plaintiff should "continue for such time to carry on the fruit business:" — Held, that this was to be read as a personal engagement for ten years by til'' defendant that he would not inter- fere with the fruit business of the plaintiff, provided that the plaintiff should always during that time continuously carry on as proprietor that business ; and the plaintiff had ceased to carry on the fruit business by entering into an incorporated company and transferring to that body his plant, property, and goodwill in the business, although he was a shareholder and acted as manager while the company did business, and, when that ceased, resumed the fruit business on his own account ; and, therefore, he was not entitled to restrain the defendant from engaging in the fruit business during the ten years. m re Sax, Earned v. Sax (1893), 62 L. J. Ch. G88, 6S L. T. N. S. 849, 41 W. R. 5S4, 3 R. 638, approved and applied: Carpenter v. Carpenter, 15 O. L. R. 9. There is no general and absolute rule that a mortgagor and Mortgagor mortgagee cannot at the time of entering into the mortgage transaction JjU^jgagee enter into some other agreement from which the mortgagee gets some advantage. So long as such collateral agreement is nol unconscion- able or oppressive, and so long as it does not place any absolute fetter on the right of the mortgagor to redeem on payment of principal, interest, and costs, it is not invalid. Jennings v. ward <2 Vera. 520) and Edwards' Estate In re (11 Ir. Ch. Rep. 367) discussed: Biggs v. Hoddinott, 07 L. J. Ch. 540: (1898) 2 Ch. 307; 79 L. T. 201 : 47 W. R. 84. A mortgage is a conveyance of property as a security for the payment of a debt, or the discharge of some ether obligation, and the security is redeemable on such payment or discharge, and any provision inseried to prevent such redemption is a fetter on the 544 DEFENCES. equity of redemption and is void; but the amount or nature of the debt or obligation is not a fetter: Santley v. Wilde, OS L. J. Ch. 681; (1S99) 2 Ch. 474: 81 L. T. 393; 48 W. li. 90. Money The rule of law that, where one of two parties to an illegal paid un- der illegal contract pays money to the other in pursuance thereof, he cannot contract. recover it back, it is not displaced by the fact that the contract was entered into in consequence of an innocent misrepresentation of the law made by the other party, in the absence of proof of fraud, dureRs, oppression, or such a difference in the position of the parties as would create a fiduciary relationship between them : Harse v. Pearl Life Assurance Co., 73 L. J. K. B. 373; (1904) 1 K. B. 558; 90 L. T. 245 ; 52 W. R. 457 ; 20 T. L. R. 264. Penalty Where by a statute a penalty is imposed — not solely for the effect. protection of the revenue, but solely or partly for that of the public — for doing or omitting any act, such act or omission is impliedly prohibited by the statute, and is illegal : Victorian Daylesford Syndi- cate v. Dott, 74 L. J. Ch. 673; (1905) 2 Ch. 624; 93 L. T. 627; 54 W. R. 231; 21 T. L. R. 742. 8. P. Bonnafd v. Dott, 75 L. J. OB. 446; 1906) 1 Ch. 740; 94 L. T. R. 399. Indemnity An agreement to indemnify against liability of a person who has habilitvon ontere d into recognisance for the appearance of a defendant in a bail bond, criminal matter is invalid as being contrary to public policy, although the indemnity be given by a person other than the defend- ant : Consolidated Exploration and Finance Co. v. Musgravc, 69 L. J. Ch. 11; (1900), 1 Ch. 37; 81 L. T. 747; 48 W. R. 298: 64 J. P. 89. Held, that a conveyance made for the purpose of enabling an irresponsible person to justify as special bail was a transaction against good conscience and morality: Langlois v. Bahy, 11 Chy. 21. A con- tract for transfer of property with intent by the transferor and for Transferof the purpose thai it shall be applied by the transferee to the accom- prr.perty- p]i s hment of an illegal or immoral purpose, is void and cannot be interest. enforced ; but mere knowledge of the transferor of the intention of the transferee so to apply it, will not void the contract unless from the particular nature of the property and the character and occupa- tion of the transferee, a just inference can be drawn that the trans- feror must also have so intended. Judgment below. 20 A. R. 198, wm Wager v. O'Neil, affirming 21 O. R. 27, affirmed: Clark v. Hager, 22 S. C. R. 510. Courts of equity cannot any more than Courts of law, on the footing of want of notice of the illegality, give effect to proceedings which on principles of the common law and under Acts of Parliament are utterly void: Gardiner v. Juson, 2 E. & A. 188. Notes sued upon having been given on the illegal ement held not enforceable: Rawlings v. Coal Consumers' Asso- ciation, 43 L. J. M. C. ill ; Windhill Local Board of Health v. Vint, 1 1. i.i.i. \i FA' 45 (Mi. I ». 353 ; and Jones v. M *< Permanent Benefit Build- ing Booiety (1801), 2 Ch. 587, Followed: Held, also, that as part of the consideration for the agreement was illegal the whole was bad. i.ouiui v. Orimwade, :)'.) Ch. I), a; p. 813, followed: Legatt v. Brown, -".I o. U. .",30. 30 O. R. 225. Transactions on Margin: French v. Brink, 1 < >. \Y. N. 790. One who sells promising to deliver to the purchaser in a foreign conntr.v goods, the importing of which to his knowledge is prohibited by the laws of that country, is obliged, in case of confiscation of the article sold, to repay the price to the purchaser, where the latter was ignorant at the time of the sale of the prohibition: Quigley v. Des- jardins, Q. Et. 24 S. C. 434. When goods sold arc deliverable in a foreign country, where the importation of thai kind of goods is prohibited to the knowledge of the purchaser, the vendor who assumes all risk of confiscation of the goods until delivery, is not responsible to the purchaser if after deli- very and acceptance by the latter the goods are confiscated by the customs' authorities: Couch v. Desjardins, Q. R. 24 S. C. 543. In an action for damages for breach of a covenant not to enrry on a certain business it was held that general loss of custom after the commencement of the new business by the defendants could be shewn by the plaintiff as evidence to go to the jury of damages resulting to him of such business. RatcUffe v. Evans (1892), 2 Q. R. 524. applied and followed. 2. That damages were properly as--. up to the date of the judgment. Stalker v. Duntcick, 15 O. R. 342, followed: Turner v. Hums, 24 O. R. 28. A covenant not to sue entered into by the creditor with the principal debtor without the surety's consent, but with a reservation of remedies against other parties, does not discharge such surety: Hull v. Thompson, '•> V. C. C. P. 257. A stipulation not to sue one of two judgment debtors is no discharge of the other, though there should he no express reservation of rights as against such other: Dewer v. Sparling, IS ( by. 033. One who is a party to an immoral contract cannot enforce it. i tie general rule is that where you cannot sever the illegal from the legal part of a covenant the contract is altogether void, but where you can sever them, whether the illegality be created by the statute or by the common law. you may reject the bad part and retain the good : Kitching v. Hicks, f, O. it. 339. Where a party succeeds in esfab- lishing the illegality of an instrument he will not be allowed to enforce any stipulation that may be contained therein for his benefit : Attorney-General v. Niagara Falls International Bridge Co., 20 Chy. 490. K.E. — 35 54(j DEFENCES. Whore a father enters into a contract whereby he parts with the custody and control of his child with the bona fide intention of advanc- ing the welfare of the child, there is nothing in such a contract illegal or contrary to public policy : and although where such a contract is executory on both sides the Court cannot decree specific performance by reason of the want of mutuality, where the contract has been faith- fully performed so far as the father and child are concerned, so that their status has become altered, the Court will if possible enforce in specie the performance of the contract by the other party to it: Roberts v. Hall, 1 O. R. 388. As to the promise of the defendant not to marry again, it was merely an expression of intention. Had there been an agreement it would have been void on the ground of public policy. In Pollock on Contracts, 7th ed., p. 531, it is said " that a contract by a widow or widower not to marry would probably be good," citing Scott v. Tyler (18SS), 2 Bro. C. C. 432. There is not a word which supports the statement in Pollock. In Laic v. Peers, 4 Burr. 2225, it was held that a contract in general restraint of marriage was void : Shep. Touch. 132 ; Jones v. Jones, 1 Q. B. D. at p. 282 ; Bradley v. Bradley, 1 O. W. N. 110. IMPOSSIBILITY. No action lies for the non-performance of a term of the contract, which term is on its face impossible of performance by any of the parties: Stratford v. Stratford, 26 A. R. 109. Each case of this kind must be judged by its own circumstances, and the questions to be asked are: First, what, having regard to all the circumstances, was the foundation of the contract? Secondly, was the performance of the contract prevented? And thirdly, was the event which prevented it of such a character that it could not reasonably be said to have been in the contemplation of the parties at the date of the contract Parol evidence is admissible to shew what the subject matter of the contract, and if the last two questions are answered in the affirmative both parties are discharged from further performance of tne contract. The principle of Taylor v. Co/dwell (32 L. J. Q. B. 104; 3 B. & S. 826) applied: Krell v. Henry, 72 L. J. X. B. 794; (1903) 2 K B. 740; 89 L. T. 32S ; 52 W. R. 246. Where money has been paid under a contract, the further per- formance of which has become impossible owing to the non-existence of the subject-matter of the contract, the contract is not rescinded all initio, but both parties are excused from any further performance under the contract: Blalcely v. Midler; Hooson v. Pattenden, 8S !.. T. 90; 67 J. P. 51. INDIANS. i>i~ Where a person by a contract takes upon himself the responsi- bility that certains events shall take place, ur to pay damages if from any cause lie is prevented from carrying out th that the roiiir.-ict becomes impossible of performance does not en such a parly for non-performance of the contract: Aahtnore v. I G8 L. J. Q. B. 7U: (1899) l Q. B. 436. INDIANS. The Indian Act. R. S. C. c. 81, enacts as follows : — 102. No person shall take any security or otherwise obtain any No ben or lien or charge whether by mortgage, judgment or otherwise upon real charge to t ,. t i- ,be taken or personal properly ol any Indian or non-treaty Indian, except on pro on real or personal property subject to taxation under the last three erty of preceding sections,* provided, that any person selling any article to an Indian or non-treaty Indian may take security on such article for any part of the price thereof which is unpaid. 103. Indians and non-treaty Indians shall have the right to sue As to for debts due to them, or in respect of any tort or wrong inflicted ri ?hts of action by upon them, or to compel the performance of obligations contracted Indians. with them; provided that in any suit or action between Indians, or in any case of assault in which the offender is an Indian, no appeal * The following arc the three sections above referred to: — 99. An Indian or non-treaty Indian shall be liable to be taxed Liability for any real or personal property, unless he holds in his individual"' 1 right, real estate under a lease or in fee simple, or personal property ation. outside of the reserve or special reserve, in which case he shall be liable to be taxed tor such real or personal property at the same rate as other persons in the locality in which it is situate. 100. No taxes shall be levied on the real property of any Indian As to taxes acquired under the enfranchisement clauses of this Part, until the ert% : Q £ '. U1 same has been declared liable to taxation by proclamation of the enfran- Governor-in-t 'ouncil, published in the Canada Gazette. t. !?f«„ L II Q Kill. 101. All lands vested in the Crown, or in any person in trust, E xemp . or for the use of any Indian or non-treaty Indian, or any band or tion from T "l\ 1 1 1 1 ■ 1 1 irregular band of Indians or non-treaty Indians, shall be exempt from taxation, except those lands which, having been surrendered by the bands owning them, though unpatented, have been located by or sold, or agreed to be sold, to any person: and except as against the Crown, and any Indian located on the land, the same shall be liable to taxation in like manner as other lands in the same locality; provided that nothing herein contained shall interfere with the right of the Superintendent-Genera] to cancel the original sale or location of any land, or shall render such land liable to taxation until it is again sold or located. 54S UEFENi 1 IS. Things pawned by Indians for intoxi- cants not t>. I» re- tained. Ex ellip- tic m from seizure. Traffic in and prop- erty re- stricted. Animals, farming imple- ments, etc. deemed presents. Sale, etc., null and void. Status, how proved. shall lie from any judgment, ord r or conviction by any police magis- trate, stipendiary magistrate, or two justices of the peace, or an Indian agent, when the sum adjudged or the penalty imposed does not exceed ten dollars. 104. No pawn taken from any Indian or non-treaty Indian for any intoxicant shall be retained by the person to whom such pawn is delivered, but the thing so pawned may be sued for and shall be recoverable with costs of suit, in any court of competent jurisdiction by the Indian or non-treaty Indian who pawned the same. 105. No presents given to Indians or non-treaty Indians, and no property purchased or acquired with or by means of any annuities granted to Indians, or any part thereof, and in the possession of any band of such Indians, or of any Indian of any band or irregular band, shall be liable to be taken, seized or distrained for any debt, matter, or cause whatsoever. 2. No such presents or property shall, in the provinces of Mani- toba, British Columbia, Saskatchewan or Alberta, or in the Terri- tories, be sold, bartered, exchanged, or given by any band, or irregu- lar band of Indians, or any Indian of any such band to any person or Indian other than an Indian of such band. 3. Animals given to Indians under treaty stipulations, and the progeny thereof, and farming implements, tools, and any other articles given to Indians under treaty stipulations, shall be held to be presents within the meaning of this section. 4. Every such sale, barter, exchange, or gift shall be null and void unless such sale, barter, exchange or gift is made with the written assent of the Superintendent-General or his agent. On an application, which was granted under Rule 80, for judg- ment against an Indian living with his tribe on their reserve, and not being the holder of any real or personal property outside of the reserve : Held, that since the repeal of C. S. C. c. 9, there is nothing to prevent an Indian suing and being sued, although by the Indian Act of 3880, s. 77 (D.) the action will not bind any property of the Indian except that described in section 75 : Bryce v. Salt, 11 P. R. 112. The status of an Indian as such may be proved by his certificate of birth, his general reputation, his residence in the reserve, or his election as a municipal councillor. The real and personal property of Indians inside the reserve is exempt from seizure under execution : ('harhonneau v. Lorimier, 8 Q. P. R. 115. Section 91, sub-section 24. of the British North America Act, 1867, by which the Parliament of Canada has exclusive legislative authority over " Indians and Lands reserved for the Indians," does not vest in the Government of the Dominion any proprietary rights INFANCY. 549 in such lands or power by the Legislation to interfere therewith in infringement of the proprietary righ province in which the lands arc ritual The choice and location of lands to be appropriated as Indian Reserves can only be effected )>y joint action of the Provincial and Dominion Governments. But when such lands arc surrendered by the Indians, the result is to vest them in the Crown for the beneficial use of the province whose grantees' title prevails over the title pur- ported to be granted by the Dominion. St. Catharines Milling an-1 Lumber Co. v. Reg. (58 L. J. P. C. 54: 14 App. Cas. 46) followed . Ontario Minimi Co. v. Seybold, 72 L. J. P. C. 5; 87 L. T. 449 Order for representation set aside: Chisholm v. Herkimer, 1 O. W. N. 139. The petitioner, caveator, was a Treaty Indian, who before re- ceiving a Crown patent for his land, agreed to sell same to P. lie executed a deed in which the grantee, instead of being P., was the defendant. After the issue of the patent another deed was delivered to the defendant. The caveator having applied for a certificate of title under the above real Property Act, held, that although an Indian he was a British subject and had a right to sell. The deed was not void as Deing prohibited by the Indian Act. nor was it procured by fraud. Further that the Estoppel Act applies to the petitioner. Peti- tioner to have one month to begin an action to establish a vendor's lien for unpaid purchase money and such other relief as he may be advised: Sanderson v. Heap, 1.1 W. L. R. 238. Indian Lands — Dealings With — How far Governed by Registry Law of Ontario.— Re Reed d Wilson, 23 O. R. 552. Parliament may remove an Indian from the scope of the pro- vincial laws, but, to the extent to which it has not done so, he must in his dealings outside the reserve govern himself by the general law which applies there: Rex v. Hill, 15 O. L. R. 40G. INFANCY. Infancy is a good defence, unless the action be for Qecessarit s. The question of what are necessaries is to be governed by the fortune and circumstances of the infant, and the proof of those circumstances lies on the plaintiff. A contract by an infant other than for ne saries is voidable only, not void, and may be ratified by him after he attains bis majority. The ratification, to be in writing: R. S. O. 1S'.)7, c. 1 b'>. s. C». An action by an infant without I friend, infant nitty be bound by proceedings: Millson v. Small, 25 t). R. 144. May be proved by calling any person who can speak (lie lime of birth, or by declarations of deceased members of fa Extracts from the records of the Registrar-General of the Province, 550 DEFENCES. under R. S. O. 1897, c. 44, s. 7, are prima facie evidence of the facts therein stated. If defendant of age when action commenced, the date of contract must be shewn as well as fact of non-age. Infancy does not prevenl running of statute relating to medical itioners (R. S. O.. c. 170, s. 41) : Miller v. Ryerson, 22 O. R. yance of land by an infant is voidable only, and may oe avoided by him after coming of age. Merc omission to disaffirm such a deed is not sufficient evidence to warrant a jury in finding a confirmation: Doe dem. Seehj v. Charlton, vol. 21, 119 (N.B.). An infanf trader bought goods from plaintiff, part of which weie found by ilie Judge to have been given by him to his boarding-house keeper on account of his board: Held, that the fact of the goods being so applied did not render them necessaries so as to enable the plaintiff over, and that the judgment must be entered for defendants with s : Jenkins v. Way, 2 R. & G. 394, 2 C. L. T. 108 (N.S.). The deed of an infant is voidable only; and the infancy cannot be given in evidence to invalidate the deed in a suit between third parties : Donohoe v. Hallett, Trim T. 1828 (X.B.). A contract of promise of marriage by an infant can only be avoided by the act of the infant, and not by the act of her guardian : Paris v. Maybee, 2 U. C. C. P. 2.17. See Smith v. Jamieson, 17 O. R. 620. The doctrine of con- tributory negligence does not apply to an infant of tender ace. Gard- v. Grace, 1 F. & F. 359, followed : Merritt v. Heppenstal, 2." S. (J. R. 150. Songster v. T. Eaton Co., 24 S. C. R. 70S. The rule is now well established that the deed of an infant is not void ah initio. but voidable on his attaining majority. If he wishes to avoid it he must expressly repudiate his contract within a reasonable time after coming of age, otherwise his silence will be held to amount to an affirmance of it: Foley v. Canadian Permanent Loan and Savings Co., 4 O. R. 38. To constitute a ratification after full age, of a debt contracted during infancy, there must be at least an admission of an existing liability. The meaning of words used in a document signed by the <<> btor will not be strained so as to defeat the operation of the sta- ed in his favour: Louden Manufacturing Company v. Mil- mine. 14 O. L. R. 532. Payment of premium by infant apprentice. Infant liable: Walter v. Everrard, C. A. (1891), 2 Q. B. 369. If a minor fraudulently represents himself to be of age, for the purpose of effecting a loan of money, he will not be permitted after- wards to set up the facl of his infancy as a defence to a suit to enfoi o curity created by him on effecting such loan: Goyr-r v. Morrison, 20 Chy. 69. The owner of real estate six months before attaining his majority, applied to effect a loan on the security thereof, alleging in answer to IN IAN' 551 u question, thai be was theD of full age. A m ccord- ingly executed and the money advanced; this tin- mortgagor expended in the purchase of other lands, which, together with tne land so i gaged he, on the day after he attained twenty-one, conveyed to mother for a nominal consideration: Held, thai the minority of the gagor could ii < » t he Bel up in answer to a hill to enforce pay of the mortgage, hut the same remained a valid and subsisting cl upon the land held by his grantee: H>. To make an infant liable upon a mortgage of his property tl must lie a direct misrepresentation by him as to his age. the <■• tion of the instrument not being in itself a sufficient representation : Confederation Life Association v. Kinnear, 23 A. It. -1!>7. A hoy of eleven years of age and of sufficient intelligei in the estimation of the Court to understand the probable consequent his actions, is liable for contributory negligence in the case of an accident, while attempting to hoard a tramway car as a tresp and in disobedience to orders of the schoolmaster in charge of him: Nortnand v. null Electric Co., Q. R. 35 S. C. 329. Unless for necessaries, the contract of an infant is not binding on him, nor is he liahle for a fraudulent representation that he is of full aire whereby the plaintiff is induced to contract with him : and he is entitled to plead infancy in order to escape from a contract procured by his fraud when an infant: Jewell v. Broad, 19 O. L. R. 1. The rule that an infant's contract is voidable, but binding upon the infant unless repudiated within a reasonable time after attain- ing majority, does not apply where the infant after entering into the contract acquires a foreign domicil and becomes under the law of the country of domicil incapable of validly ratifying the contract made by her: Viditz v. O'Hagan, G9 L. J. Ch. ">07 : (1900), 2 Ch. 87; 82 L. T. 480: 48 W. R. 516. An infant's contract need not be affirmed after the infant comes to age to render it good. It is valid until disaffirmed, and unless repudiated within a reasonable time the infant is absolutely bound by it: Edwards v. Carter (63 L. J. Ch. 100: (1S93). A. C. 3C.0). and Hodson v. Knight (<'.:: L. J. Ch. 609; (1894), 2 Ch. 121). is consistent with the decision of the House of Lords in Edwards v. Carter (supra). There is no inconsistency between C ooper v. Cooper (13 App. Cas. 88), and Edwards v. Carter (supra). Van Qrutten v. Digly (32 L. J. Ch. 179; :'.l Beav. 561), followed. Viditz v. O'Hagan, 68 L. J. Ch. 553; (1899), 2 Ch. 569; 80 L. T. 794; 47 W. R. 571. An infant's contract of service is not necessarily invalid because it contains stipulations some of which are void as h ing in restraint of trade and unnecessary for the protection of the master's business. 552 DEFENCES. If the void stipulations are severable from the rest of the contract they may be disregarded, and the rest of the contract is binding on the infant if it is for his benefit: Bromley v. Smith, 7S L. J. K. B. 745; (1909), 2 K. B. 233; 100 L. T. 731. INSANITY. The contracts of a lunatic, entered into fairly and bona fide with a person ignorant of the incapacity, where the transaction is in the ordinary course, and wholly or in part executed, are valid. Insanity, and the probable knowledge of it by the opposite party, may be proved by shewing that it existed and was apparent either shortly before or shortly after the alleged contract : Beaven v. M'Donnell, 9 Ex. 309. In order to avoid a deed made by a lunatic or a person in a state of intoxication two things must be established: 1st, his in- capacity to contract ; 2nd, his equitable right to be believed, and where the incapacity to contract as the result of dissipation was established, and inadequacy of consideration shewn, the Court granted relief: Jones and Wife v. Calkin et ah, 3 Pug. 356 (N.B.). INTOXICATION. A contract entered into by a person in a state of intoxication is voidable, not void : Matthews v. Baxter, L. R. 8 Ex. 132. Drunkenness is not a ground for setting aside a contract unless the person was so intoxicated as not to know what he was doing. Vivian v. Keoble, 1 Man. L. R. 125, followed. McLaren v. McMillan, 16 Man. L. R. 604. A will made at a time when the testator was drunk, leaving his property to trustees with an absolute discretion to pay or not to pay the testator's wife any part of the income, was set aside, where it appeared that the testator was affectionate to his wife when sober, but the reverse when drunk: Vampbell v Campbell, 5 W. L. R. 59, 6 Terr. L. R. 378. LACHES. Situation of Parties not Changed. — The situation of the parties not having been changed, the defendant was not bound by laches : McDonald v. McDonald, 17 A. R. 192. See Action for Account, page 479, and'. LIEN. See also Action for Conversion, p. 453. A bank has a lien of all moneys, funds and securities, deposited for tli" general balance of a customer's account. Where, therefore, a LIMITATIONS, STATUTES OF. bank held two promissory notes of a customer, one payable 1 1n-' ■•■ months after date, and secured by an indorser, and anothei payable on demand without any indorser, upon which the customer had made a payment, nothing being paid on the indorsed note, and on the customer's death there was a credit balance in his favour in the bank, which the bank applied toward payment of the unindorsed note: Held, thai the bank was jusiified in doing so. notwithstanding it appeared at such time that the customer was insolvent : In re Williams, 7 O. L. It. 156. It is not necessary that the proprietor of a wharf or quay upon navigable waters used for the loading and unloading of vessels should have a warehouse or shed, or other convenience, for the storage of goods and protection thereof from the weather; and as such whar- finger, he is entitled to a lien on goods unloaded at his wharf for money due to him for wharfage. Renald v. Walker, 8 1 . C. C. P. 37, and Llado v. Morgan, 23 U. C. C. P. 517, referred to, observed upon, and though doubted, followed: Sills v. Bickford, 26 Chy. 512. A stockbroker has in the absence of special agreement to the contrary, a general lien on a customers securities which are in his hands in the course of his business: Jones v. Peppercorne (28 L. J. Ch. 158; Johns. 430), followed. London and Globe Finance Cor- poration, In re, 71 L. J. Ch. 893: (1902). 2 Ch. 416; 87 L. T. 49. A livery-stable keeper has no lien on a horse for its stabling and keep as against the real owner when the horse was stolen and placed with him by the thief: Harding v. Johnston, 18 Man. L. It. 625, 10 W. L. R. 712. Ont. Stats. 1!)10, c. 26, s. 9, is as follows: No tavern keeper or j nn j ( " , ' u tender of such sum. or of any less sum due, such wearing apparel parol of shall be immediately given up, whatever be the amount due by such j 6 ) 1 ,),^,. 01 secant or laborurer ; but this is not to apply to other property of the pledge for si rvant or labourer. than 56. LIMITATIONS, STATUTES OF. The statutes relating to limitations of actions in Ontario are now- contained in Ont. Statutes 1910, c. 34. By the Trustee Act. sec. 46-48 of above Act, the Statutes of Limitation now run in favour of trustees: see Stephens v. Beatty, 15 C. L. T. 398. Upon issue joined on this defence burden of proof lies on plaintiff. Time of limitation is to be computed exclusive of day on which cause of action aros 554 DEI i:\ces. Statute runs from time of breach of promise or contract, and not discovery of it. Iu case of fraudulent concealment, from its dis- covery. A note payable on demand is payable immediately, aud the statute begins to run from that uate : Norton v. Ellam, 2 M & W. 461. Where the note is payable after sight, the statute runs only from the time of presentment: Holmes v. Kerrison, 2 Taunt. 323. Where the cause of action does not arise until after request made, the statute will only run from the time of such request: Gould V. John- son, 2 Salk. 422. Ont. Statute 1910, c. 34, s. 50. All actions of account, or for not accounting, or for such accounts as concern the trade of merchandise as between merchant and mer- chant, their factors and servants, must be commenced within six years after the cause of action. Limitations of other actions are as follows : — Twenty years. (a) Actions for rent upon an indenture of demise. (b) Actions upon a bond or other specialty, except a mortgage covenant. (c) Actions upon a recognizance. Hix years. id) Actions upon an award where the submission is not by specialty. (e) Actions for an escape. (/) Actions for money levied on execution. (g) Actions for trespass to goods or land, debt grounded upon any lending or contract without specialty, debt for arrears of rent, detinue, replevin or upon the case other than for slander. Two years. (h) Actions for penalties, damages, or sums of money given to the Crown or to the party aggrieved by any statute. (i) An action upon the case for words. Ten years. (k) Actions upon any covenant contained in any mortgage made on or after 1st July, 1894. One year. (I) Actions for penalties by informers or by any person not being person aggrieved. A judgment remains in force for twenty years at least, the only limitation that can be applicable to it being It. S. O. 1887, c. 00, s. 1. iew of the amendment made in R. S. O. 1877, c. 108, s. 23, by LIMITATIONS, >T\ 1 I ; the revision of 1887, R. S. O. 1887, c. 111. s. 23, the English author- ities, such as Jay v. Johnston t L893), 1 <„>. I'.. 189, and cases there cited doI apply. Boice \. O'Loane, '.', A. It. 167, followed. Pari Part pay- payment of a judgmenl must, to be an extinguishment thereof, be m ' expressly accepted by the creditor in sal Where, therefore, the judgmenl debtor forwarded to the solicitor of the judgmenl credi- tor a bank draft, payable t<> the solicitor's order, as payment "in full,*' and th" solicitor indorsed the drafl and obtained and paid • the moneys to the judgment creditor, but wrote refusing i" ac< ayment "in full." the judgment creditor was allowed to proceed fur the balance. Day v. McLea, 22 <„>. B. I ». 610, applied. Section 53, s.-s. 7, Judicature Act as to part pei of an obligation in satisfaction, considered: M'l.sou v. Johnston, 2n A. R. 412. Notwithstanding R. S. O. 1S77, c. 108, s. 2:; (see R. S. O. 1S97, <•. 1.'!:'.. s. 12.".), twenty years is the period of limitation applicable to an action on a judgment of a Court of Record. Boice v. O'Loane, :; A. R. 167, and eases following it, followed in preference to Jay v. Johnston (1893), 1 Q. P>. 2.".. ISO: Butler v. McMicken, 32 O. R. 422. Lands are bound only from the delivery of the writ asrainst them to the sheriff, and a judgment is no lien upon them : Doe d. Auldjo v. Hollister, 5 <). S. 739. Poverty is no excuse for delay in making application to the Court, as in such a ease the party can ap»ly in forma pauperis: Harris v. Myers, 1 Ch. Ch. 229. The acknowledgment of a debt within Lord Tenterden's Act made Executors. by one of several executors as executors binds the testator's estate: Re Macdonald, Did,- v. Fraser (1897), 2 Ch. 181. See Aspbury v. Aspbury (1898), 2 Ch. III. An execution againsl an existing interest in lands ceases to be a Execution lien thereon in ten years from the time of its delivery to the sheriff. on lan ' s •"en though it has been duly renewed from time to time and kept in force continuously, and sale proceedings cannot be taken under it after that time. Neil v. Almond, 29 O. R. 63. approved : hi re Woodall, 8 O. L. R. 288. Under a mortgage containing the statutory provision that in de- fault of the payment of the interest the principal shall become pay- able, default in payment of interesi has the effect of making the principal payable as if the time for payment had fully come, and a riuht of action therefor then arises and the Statute of Limitations then begins to run: McFadden v. Brandon, 8 O. I.. R. 010. Sub-section S of s. "> of R. S. O. 1887, c. 111. applies p. the case of an implied trust, and a purchaser in possession, with the assent of his vendor, and not in default is, therefore, not to be deemed to be a 556 DEFENCES. Infants. Agree- ments to purchase . Allowance for road. Moneys in Court. tenant at will to his vendor within the meaning of s.-s. 7. Warren v. .Murray (1894), 2 Q. B. 648, applied. Judgment in 28 O. R. 92 affirmed : Irvine v. Macaulay, 24 A. R. 44G. Whore a person enters upon the lands of infants, not being a father or guardian, or standing in any fiduciary relation to the owner, and remains in possession for the statutable period, the rights of the infants will be barred. Quinton v. Firth, Ir. R. 2 Eq. 415. con- sidered and not followed. Decision in 8 P. R. 207 reversed: In re Tahjor, '26 Chy. 640. Payment of part of the purchase money by a person in possession ot land under an agreement to purchase is a renewal, of the tenancy at will, and the Statute of Limitations begins to run from such pay- ment. Entries in the handwriting of a deceased person in his books of account, made in the ordinary course of his business, are admis- sible under s. 38, c. 127, C. S. N. B. 1903, and the first entry being admitted to be a payment on account of a land purchase, the second was evidence of a payment on the same account on the 23rd of May, 1886. Where an entry in the handwriting of a deceased person is prima facie against interest, it is admissible for all purposes, irrespective of its effect or value when received. An oral admis- sion by a person holding under an agreement to purchase, that he is holdin? as tenant at will to the vendor, will not prevent the statute running against such vendor. As between the vendor and a vendee in possession under an agreement to purchase, the vendor is substantially a mortgagee entitled to the rights and privileges secured to a mortgagee under s. 30 of c. 139 of C. S. N. B. 1903, and is also as a mortgagee within the exception provided by s. 8 of the statute, and the right of entry of the vendor and his representatives would not be extinguished for 20 years after the last payment of principal or interest: Anderson v. Anderson, 37 N. B. R. 432, 1 E. L. R. 443. The public cannot release their rights, and there is no extinctive presumption or prescription. Therefore, where an original allowance for road had been taken possession of and occupied by the plaintiff, and those under whom he claimed, for a period of forty years and upwards: Held, that such lengthened possession afforded no ground for opposing the action of the municipality in resuming possession of the road for the purpose of opening up the same: Nash v. Glover, 24 Gr. 219. See jJrummell v. Wharin, 12 Chy. 283. Statutes of limitation have relation only between subject and subject — the Crown cannot be bound by them. The Supreme Court of Judicature for Ontario is a public trustee as to all moneys and securities in its hands. Moneys in Court are in custodia regis, and to such a fund and such custodian the Statute of Limitations has no pertinence. Suitors and claimants are not barred by any lapse of LIMITATIONS, STAT1 TBS OF. time in their application for payment out of moneys to which they am entitled, and reciprocally they Bhould not be protected by lapse of time from making restitution, if they have improperly or fraudulently received moneys from the Court to which they have no jus: claim. Restitution was ordered after a period of four . without interest, as the mistake was that <>f an officer of the Court : Allstadt v. Qortner, 31 O. R. 495. To bar a plaintiff in ejectment under the Statute of Limitations he must not only have been out of possession for twenty years, but there must have been actual possession by another: Lloyd v. Hender- io». 25 U. C. C. P. 253. Where a righl to relief in respect to land arises during t lie pro- gress of a cause. ;iih1 more than ten years are allowed to elapse be- fore action thereon, such right will be barred by the Real Property Limitation Act, R. S. O. 1^ S T. c. 108: Ross v. Pomeroy, 28 Chy. 435. An acknowledgment to a party's trustee is sufficient to take a case out of the statute: Mclntyre v. Canada Co., 18 Chy. 307. arks upon the possession necessary to obtain a title as against P< the true owner, and the effect of such possession when extending onlv s,on ' . at to part of a lot. It must depend upon the circumstances of each case tutes. whether the jury may not. as against the legal title, properly infer ssion of the whole land covered by such title, though the occupa- tion by open acts of ownership, such as clearing, fencing, and culti- vating, has been limited to a portion; and in this case there was evi- lly sufficient to warrant such inference. Semble, that a squatter will acquire title as against the real owner only to the part he has actually occupied, or at least over which he has exercised con- tinuous and open notorious acts of ownership, and not merely desul- tory acts of trespass, in respect of which the true owner could not maintain ejectment against the trespasser as the person in posses- sion: Dundaa v. Johnson, 24 U. C. R. 547. Section- 54 and .">."> of Ontario Statute, c. .".4. relate to Acknow- ledgments or Promises. In the case of an indenture, a specialty or recognizance, twenty years is the limit. In the case mentioned in i ' >. page 554, of a covenant in a mortgage, ten years is the limit. Pro- mise by words only is nol sufficient to take out any of the cases men- tioned on pages 554, 555, actions of account and upon the cas< — on simple contract claims or of debt for arrears of rent. Where A. has been twenty years in possession, paying no rent. and signing no written acknowledgment of title in another, such possession, whether it originate adversely to the claims of the true owner. B., or with his permission, operates under the statute to ex- 558 DEFENCES. Parent and child. Common error. Nuisance. languish the title of B. and vest the title in A.: Doe d. Perry v. Hen- derson, 3 U. G. R. 4S6. Where a son has been allowed by bis father to remain in posses- sion for twenty years, and it cannot be shewn that he was there as the servant or agent of his father, or has paid rent within the twenty years, or acknowledged the father's title in writing, the father will lose his title, no matter what the understanding of both parties as to the real ownership may have been : Doe d. Quincey v. Caniffe, 5 U. C. R. G02. The fact that both plaintiff and defendant were under a common error as to the true boundary of their lands will not prevent the statute from running against the true line, though it would be other- wise if it had been agreed upon between them that a certain line should govern whether correct or not : Martin v. Weld, 19 U. C. R. 631. A possession inadvertently held under an erroneous impression as to boundary, with no intention of claiming the land otherwise than as it was supposed to form part of a certain lot covered by the party's deed, would by mere lapse of time ripen into a title : Doe d. Taylor v. Sexton, S U. C. R. 264. See McGregor v. Eeiller, 9 O. R. 677. While the defendant was in possession of land as caretaker or tenant at will, the owner put his cattle thereon to be fed and cared for by the defendant : Held, that the produce of the land which the cattle ate was " profits " which the owner, by means of his cattle, took to himself for his own use and benefit, and as long as the cattle were upon the land the defendant was not in exclusive possession, and the Statute of Limitations did not begin to run in his favour : Rennie v. Frame, 29 O. R. 586. The Statute of Limitations does not run against the Crown, and it makes no difference that the land is vested in the Crown as trustee. v\ here, therefore, in ejectment by the Crown for land held as trustee for the University of Toronto under C. S. C. c. 62, s. 65, it appeared that defendant had held possession for twenty-seven years, the plain- tiff was nevertheless: Held, entitled to succeed: Regina V. Williams, 39 U. C. R. 397. Held, that twenty years' user will legitimate an casement affecting private property, but not a nuisance: Regina V. Brewster, 8 U. C. O. P. 208. A right to an easement previously enjoyed cannot be acquired by the lapse of time during which the owner of the dominant tenement has a lease of the bind over which the right would extend. During l.IMl DATI0N8, BTATOT E8 OF. such unity of possession the running of the Statute of Limitations is suspensed: Stothart \. Hillard, lit I ». R. 542. The time for acquisition <>f an easemenl by prescription do run while the dominant and Bervienl tenements are in the occupation of the Bame persons, even though the occupation of tin- Bervienl tenement he wrongful and without the privity of the true owner: tnnea v. Ferguson, 21 A. K. 323; Ferguson v. Innes, 24 S. 0. R. 703. Where the true owner of land in exercise of his right enters upon any portion of the land which is not in the actual possession of an- other, the entry is deemed to refer to the whole land: Great Western B. W. Co. v. Lute, 32 r. C. C. P. 166. "State of nature" in s.-s. 4, s. 5. R. S. O., c. 133, is used in contradistinction to "residing upon or cultivating." Unless the patentee of wild lands or some one claiming under him has resided upon the land or has cultivated or improved it or actually used it, the twenty years" limitation applies. Clearing or cultivating by trespassers will nol avail to shorten the limit. Quaere, is fencing a lot sufficient? Stovcl v. Gregory, 21 A. R. 137. Vacant land as be- tween mortgagor and mortgagee: Delaney v. 0. P. /'.. 21 O. R. 11. An acknowledgment to a person who afterwards becomes administra- tor is good {Quaere) : Robertson v. Burrell, 22 A. R. 356. As to tenant in common: Hill v. Ashbridge, 20 A. R. 44; Howard v. O'Donohue, 10 S. C. R. 341. Compensation paid by railway com- pany to life tenant : Young v. Midland, 19 A. R. 205. The provi- sions of R. S. O., c. 166 (Lord Campbell's Act) are qo1 affected by special railway legislation (e.g.. Railway Act) : Zimmer v. G. T. R., 19 A. R. 693. A payment to a mortgagee by a party qoI interested in the mortgaged premises will not enure to the benefit of the mort- gagee: Trust & Loan v. Stevenson. 20 A. R. 66. In a company their is no liability to pay for shares until a call is made and notice thereof given to the shareholder, and until thai time the statute does not begin to run against the company: Re Haggart Bros. Co., 19 A. K. 582. The owner of land on the sea shore or on a navigable river is entitled to free ingress and egress thereto and therefrom: Held, that no length of time during which occasional a> 'ruc- tion were permitted would debar him of those rights: Collins v. Barss, 2 Thorn. 281 I N.S.). Proof of a promise to pay as "soon as ble" is not sufficient to take a ease out of the Statute of Limi- tations without proof of defendant's ability to pay. Hallburton, J., dissenting: Murdoch v. Pitts, James. 258 (X.S.I. Under the Nova Scotia Statute of Limitations (R. S. N. S. (5th ser.), c. 112). a possession of land in order to ripen into a title and oust the real owner must be uninterrupted during the whole statutory period. If abandoned at any time during such period the law will attribute the uption to the p trson having title. A possession by a series of 560 DEFENCES. Acts of Doctrine of domi- aant and servient tenement. persons during the necessary period will bar the title though some of such persons in possession were not in privity with their prede- cessors : Handley v. Archibald, 30 S. C. R. 130. Isolated acts of tres- pass committed on wild lands from year to year will not give the trespasser a title under the Statute of Limitations: Sherren V. Pearson. 14 S. C. R. 581. As to the application of the Ontario Act, R. S. O. 1S77, c. 10S, reducing the period of limitation to ten years to the interruption, or ten years to the interruption of an easement: see Mykel v. Doyle, 45 U. C. R. 65. Twenty years' user will legiti- mate an easement affecting private property, but not a nuisance: Regina v. Brewster, 8 U. C. C. P. 208. The time for acquisition of an lent by prescription does not run while the dominant and servient tenements are in the occupation of the same person, even though the occupation of the servient tenement be wrongful and without the privity of the true owner: Innes v. Ferguson, 21 A. R. 323, 24 S. C. R. 703. A right of way granted for the benefit of a specific lot can- not be used by the owner of that lot generally apart from his owner- ship and use of the lot : Robinson v. Purdon, 26 A. R. 95, 30 S. C. R. 64. Where two properties belonging to the same owner are sold at tne same time, and each purchaser has notice of sale to the other, the right to any continuous easement passes with the sale as an absolute legal right: hart v. McMullen, 30 S. O. R. 245. The doctrine of dominant and servient tenement does not apply between adjoining lands of different levels so as to give the owner of the land of higher level the legal right as an incident of his estate to have surface water falling on his land discharged over the land of lower level, although it would naturally find its way there. The owner of tne land of lower level may fill up the low places on his land or build walls thereon, although by so doing he keeps back the surface water to the injury of the owner of the land of higher level : Ostrom v. Sills. 24 A. R. 526. 28 S. C. R. 485: Held, reversing the judgment appealed from (18 Ont. App. R. 529) that the severance of the property did not alter the relation between the owners and O. ; that no act was done by O. at any time declaring that he would not continue to act as caretaker ; and that his possession therefore continued to be that of caretaker and he had acquired no title by possession: Ryan v. Ryan (5 Can. S. C. It. 387), Heward v. O'Donohue, 19 S. C. R. 341. In case a plaintiff is, at the time of the cause of action accruing, an infant or non compos, the six years run from the removal of the disability. A plaintiff resident without the limits of Ontario has no longer period of time to commence an action than if he were resident in Ontario when the cause of action accrued. In the case of a defendant without the limits of Ontario at the time of the action accruing, the action may be brought within such LIMITATIONS, STATUTES OF. 561 times . bove mentioned after the return of the absent person to Ontario. In eases where some joint debtors have \ n within and some j i n | without Ontario, no further time is allowed to commence action debtors, against any of the joint debtors who were within Ontario when the action accrued by nasi in only that some other of the joinl debtors were at that time witboul Ontario. A judgment recovered in such a case will not be a bar to another action against the joint debtor who was without Ontario. The effect of the Statute of Limitations may he avoided by proof of an unqualified acknowledgment of the debt within six years, which is evidence of a new o pay the debt, and not a mere revival of the original promise. Part payment of a debt takes a case out of the statute, as evidence p a rt pay- of a fresh promise to pay the debt. The payment must be such as to menfc warrant the jury in inferring an intention to pay the rest. It must appear that the payment was on account of the debt for which the action was brought, and that it was made as part payment of a greater debt. A part payment within six years, though proved only by an oral or unsigned admission of tne defendant, will take the case out of the statute: Cleave v. Jones, 6 Ex. 573. An acknowledgment, or promise or part payment, by one of several co-contractors, does not mase the co-contractors liable to lose the benefit of the statute : R. S. O. 1897, c. 140, s. 2. The acknowledgment or promise may be made or contained by or in some writing signed by the party chargeable thereby, or by his agent duly authorized to make such acknowledg- ment or promise. An admission of a debt made to a mere stranger can only repel the statute when it can be properly left to the jury as equivalent to or implying a promise to the plaintiff to pay him. The construction of a doubtful document given in evidence to defeat the statute is for the Court, and not for the jury, though if intrinsic facts are adduced in explanation, the facts arc for the consideration of the jury: Smith V. Thorn,. IS Q. B. 134. Whether the promise be qualified or not is a question of construc- tion for the Court, and not for the jury, excepl where extrinsic evi- dence affects the construction: Boutledge v. Ramsay, 8 A. & B. 221 : Wilson v. Rykert, 14 0. R. ' Where money has been paid under a mistake of fact, the Statute Mistake of Limitations begins to run from the time of such payment, except in of fact. cases where, previous to the Judicature a . L873, equitabl relief only could have been obtained. Brooksbank V. Smith, (0 L. J. Ex. Eq. 34, 2 Y. & C. 58), explained. Baker v. Courage, 79 L. J. K. P.. 313, S62 DEFENCES. Right to easement. Adverse possession. (1910) 1 K. B. 56, 101 L. T. 854. Effect of payment by one of several joint makers after enforcement of barred note: Patterson v. Campbell, 8 E. L. R. 49. Possession of an upper room in a building supported entirely by portions of the storey beneath may ripen into title thereto under the provisions of the Statute of Limitations : Iredale v. London, 40 S. C. R. 313. In order to establish a right to an easement by long enjoyment, the enjoyment must be of such a nature that the servient owner's attention ought reasonably to have been drawn to the existence of the easement. It is not enough that something has been visible from which an expert might have inferred the existence of the easement. The word "clam''' as applied to the enjoyment by which an ease- ment may be acquired, does not mean surreptitiously or fraudulently, but only in such a manner as could be reasonably expected to attract the notice of the servient owner : Union Lighterage Co. y. London Graving Dock Co., 70 L. J. Ch. 558; (1901), 2 Ch. 300; 84 L. T. 527. The payment to the mortgagee of interest due upon the mort- gage debt by a person who, as between himself and the mortgagor, is bound to make the payment, is a sufficient payment within section 8 of the Real Property Limitation Act, 1874, to prevent time running against the mortgagee under the statute : Bradshaw v. Widdrington, 49 W. It. 698. The time within which a client must assert his right as against his solicitor, to obtain, or, in case of error, to open, an account is not limited to six years or to any other definite period : Cheese v. Keen, 77 L. J. Ch. 163: (1908), 1 Ch. 245; 98 L. T. 316; 24 T. L. R. 13f>. In au action to recover a legacy the period of limi- tation is twelve years from the death of the testator, not from the expiration of one year after his death: Waddell v. Harshaw (1905), 1 Ir. R. 416. In considering a question of laches, time runs not from the date of the conveyance, but from the date when the party seeking relief first became aware of the mistake : Beale v. Kyte, 76 L. J. Ch. 294 ; (1907), 1 Ch. 654; 96 L. T. 390. A party asserting a title to land by adverse possession should prove it most clearly and, although there is not statutory requirement that the evidence of such party and members of his family must be corroborated, it would be unsafe, un- less such evidence appears to be correct beyond reasonable doubt, to hold that a title by possession has been gained in the absence of strong additional evidence by disinterested witnesses. Sanders v. Zanders, 19 Ch. D. 373, distinguished: Callaway v. Piatt, 6 W. L. R. 467 ; 17 Man. L. R. 485. The effect of the Statute of Limitations upon the position of a person in possession of leaseholds (not an assignee) is not to transfer to him the interest of the lessee, and make him bound by the covenants in the lease, but merely to give LIMITATION^ BTAT1 CES OF. 563 him the righl of possession during the remainder of the leat the Lessee or those claiming under him. Tiohbome \. Weir ('57 L. T. 735), followed: O'Connor \. Foley (1905), l Er. B. 1. The righl of a shareholder in a limited company to sue for dividends Divii on ordinary Bhares in arrears for more than six years, but less than twenty years, is nol barred by the Statute of Limitations, as such arrears are in the nature of specialty and not simple contract debts. The same principle applies to sums due for capital returnable to the shareholders in pursuance of a resolution for reduction o£ capital sanctioned l>y the Court: Artizana Land and Mortgage Corporation, In re, 73 L. J. Ch. 581; (1904), 1 Ch. 90; 52 W. B. 330. A general acknowledgment of a debt with a conditional promise Condi- to pay, but withoul any distinct statement thai except upon the per- mise formance of the condition the debtor will not i>r cannot pay, is suffi- cient to take a debt out of the Statute of Limitations: Barrett v. Davies, 90 L. T. 460; 52 W. It. 607; 20 T. L. R. 318. A promise to pay the halame oi an original debt which may be found to be du? upon taking an account is sufficient promise to lake a case out of the Statute of Limitations: Langrish v. Watts, ~- L. .1. K. B. 435; (1903), 1 K. B. 636; 8S L. T. 433; 51 W. B. 503. An agent who Agent's has authority to pay a debt of his principal has authority to promise promise, to pay it; and where an agent acting within the scope of his author- ity makes a payment on account of a debt of his principal, and noth- ing more is said or done, a promise to pay the balance of the debt will be inferred so as to take the case out of the Statute of Limita- tions: Hale, In re; TAlley v. Foad, 68 L. J. Oh. 517; (1899), 2 Ch. 107 ; 80 L. T. 827 ; 47 W. R. 579. Where a principal has remitted moneys to an agent for the purpose of being invested in the purchase of lands, an express trust is created, and the Statute of Limitations will be no bar to an action :■ by the principal against the agent for an account in ord.-r to recover the balance of the moneys remitted to him, and not ap- plied for the particular purpose: North American Land and Timber Co. v. Walhins. 7.". I.. .1. Ch. 626; (1904), 2 Ch. 233; !>1 I.. T. 425; 20 T. L. R. G42 In order to acquire a title to land under the Real Property I. inn- Dis] tation Act, 1833, it is necessary to prove discontinuance of posses- sion by the true owner or dispossession of the true owner. "When dispossession has been inferred from equivocal acts, the in- tention with which the acts are done is all-important: l.itttcdale \. Liverpool College, 69 L. J. Ch. 87: (1900). 1 Ch. 19; 81 L. T. 564; 4S W. R. 177. The "concealed fraud'" which under section 26 of the Real Concealed Property Limitation Act, IS:'.. - '., will prevent the running of the Real rau ' Property Limitation Acts against a plaintiff claiming real property 564 DEFENCES. must, according to the principles; which have been always acted upon by the Courts of Equity, be the fraud of, or in some way imputable to. the person setting up the statutes, or of some one through whom that person claims (Rigby, L.J., dissentienie) : HcCallum, In re; McCallum v. McCallum, 70 L. J. Ch. 206; (1901), 1 Ch. 143; 83 L. T. 717; 49 W. R. 129. The Statute of Limitations is no bar to an action by a principal against his agent in respect of moneys :e- mitted to the agent for an express purpose and retained by him, where such agent is either in the position of an express trustee or guilty of fraudulent concealment in his accounts : North American Land and Timber Co. v. Watkins, 73 L. J. Ch. 626; (1904), 2 Ch. 233; 91 L. T. 425 ; 20 T. L. R. 642. A simple contract debt, though secured by a charge on land, is barred in six years by the Limitation Act, 1623: Barnes v. Glenton, 68 L. J. Q. B. 502; (1899), 1 Q. B. 885; 80 L. T. 606 ; 47 W. R. 435. MAINTENANCE AND CHAMPERTY (MANITOBA). The Criminal Law of England, as it existed on the loth July, 1870, was introduced into Manitoba. Maintenance and champerty are not a crime, and have not been introduced as actual criminal offences in Manitoba : Meloche v. Deguire, 34 S. C. R. 24 ; Hopkins v. Smith, 1 O. L. R. 695, and Briggs V. Fleutot, 10 B. C. R. 309, do not apply to the condition of the law of Manitoba : Thomson v. Wishart, 13 W. L. R. 445. MARRIAGE. Plaintiffs, creditors of the defendant E. D., filed a bill to set aside as fraudulent and void a judgment recovered by the other de- fendant, E. D.'s wife, as against her husband, claiming that the hus- band really did not owe his wife the money for which she sued him. The defendants both stated in their answers that the husband did owe the wife the money for which the suit had boon brought. At the hearing the only evidence for the plaintiffs was the testimony of some of the creditors of the husband, who showed that the debtor in giving statements of his affairs from time to time had not included the alleged indebtedness to his wife, and evidence of certain statements made by the husband respecting his wife against him : — Held, that the statements made by the husband were not evidence against his wife, and there being no evidence to displace the sworn statements of the defendants in their answers, that the bill must be dismissed with costs. One of the witnesses at the trial. Mrs. D., being present, gave evidence of an alleged statement of her husband that her judg- ment was got for a cloud, and plaintiffs contended that she was bound to deny this, relying on Barber v. Finling, 1891, Ch. 184: Held, M LRBIAGB. that such ;i 1-1 i I applied iu that case w >le in the present case, and especially since the defendant, although sitting in Conn, did not understand the language spoken by the witnesses but only French. While there may be a presumption that the income of a wife's separate property received by the husband is to be regarded in the light <>f a gift, there is no such presumption where he has received the corpus, and the wife can without any evidence of a bargain or agreement for a loan recover back the corpus of her separate estate, even after it gets into the husband's possession: Thompson v. Dickson, 10 -M;tn. Rep. 246. The purpose of this Art was to preserve to a married woman for her own use, and as her own estate, all her own property which sh«> had not disposed of expressly by a settlement, in like manner as if she had secured it by a settlement: Leys v. McPlierson, 17 l T . C. C. P. The separate estate of a married woman is liable for her funeral expenses: Re Gibbons, ol O. R. 252. A husuand is liable for the funeral expenses of his wife, and cannot claim indemnity therefor out of her separate estate: Constan- tinides v. Welsh, 15 N. E. Rep. 631, not followed. In re Sea, 11 B. C. R. 324. 1 W. L. R. 460. The plaintiff, a married woman, carried on business as a hotel- keeper, and owned the chattels in the hotel. The defendant, her husband, interfered with the plaintiff in her business, by taking the .is. giving orders to servants, and maltreating the plaintiff. An injunction was granted restraining the defendant from interfering in the business, or with the servants, or agents, or removing any of the plaintiff's chattels. Semble, that, if asked for, an injunction might also have been granted excluding the defendant from the hotel under the circumstances: Donnelly v. Donnelly, 9 O. R. 673. A sale of chattels, consisting of household furniture in their resi- dence, between a married woman and her husband, living and continu- ing to live together, without a duly registered bill of sale, is void as against creditors, for in such a case there cannot be said to be an actual and continued change of possession open and reasonably suffi- cient to afford public notice thereof, as required by the Bills of Sale : Hogaboom v. Graydon, 26 O. R. 298. The rule that judgment recovered against one of two joint con- ors is a bar to an action against the other, applies equally when one of the joint contractors is a married woman, contracting in ,' her separate property: Hoar>- v. Nibleti (1891), 1 Q. B. When a wife claimed as against her husband's creditors certain chattels, as a gift from him while living together: — Held, that the onus of proof of title to the - on him. and there being no 565 566 DEFENCES. writing or witnesses, her own evidence, although corroborated by her husband, was not sufficient to satisfy the onus : Thompson V. Doyle, 16 C. L. T. Occ. N. 286. Where a wife took an active part in her husband's business, and had the custody of his money, sums paid to her were treated as paid to the husband : Robinson v. Coyne, 14 Chy. 561. A husband having given notice to the plaintiff that he would not be responsible for goods furnished to his wife, who had withdrawn herself from his protection, was held not liable for goods furnished to her by the plaintiff without his knowledge after she had returned to him again : Weaver V. Lawrence, E. T. 2 Vict. Where there has been a voluntary separation without provision for the wife's support, she is entitled to pledge her husband's credit for necessaries : Tait v. Lindsay, 12 U. C. C. P. 414. Under 35 Vict. e. 16, s. 1 (O. ), a married woman can maintain an action for her wages, earned whilst living with her husband, who as agent of the defendants employed her ; and the husband is a com- petent witness in her behalf : McCamdy V. Tuer, 24 U. C. C. P. 101. A married woman having separate estate may enter into a contract along with others. Semble, if she having no separate estate is not liable under such a contract, the other contractors are liable without her : Dinrjman v. Harris, 26 O. R. 84. Where a child dies intestate and unmarried, entitled to personal estate, leaving a father, mother, brother and sister, the father is en- titled as the next of kin in the first degree, to the whole of the per- sonal estate exclusive of all others. This rule of construction as to the distribution of personal property has not been in any way altered by any provision of the Married Women's Property Act, 1895 : Lewin v. Lewin, 36 N. B. Reps. 365. Husband and Wife — Alienation of Husband's Affections. Lellis v. Lambert, 24 A. R. 653, followed: Weston v. Perry, 1 O. W. N. 155. No ceremony of marriage should be declared invalid, as a rule, unless the circumstances establishing the invalidity are proven in open Court, coram populo, by viva voce evidence: Menzies v. Farnon, 18 O. L. R. 174. A married woman when contracting otherwise than for the benefit of her husband has all the capacity of a feme sole to bind her separate estate, and there can be no ground for presuming that the husband abused the confidence of the wife by exercising undue marital in- fluence for the benefit of a stranger. Cox v. Adams (1904), 35 S. C. R. 393. distinguished: Saicyer-Massey Co. v. Hodgson, 18 . R. 333. \u. 567 A wife, out Hi" moneys supplied by her husband, purchased wearing apparel for her own use. The husband 'li. v. I>, Fries (No. 1 t, 7!t I-. -1. K. B. 24, (1909) 2 K. B. 831, 101 L. T. 476. 53 S. J. 744, 2r> T. L. R. 784.— C. A. The Married Women's Property Act, 1882, lias not altered the devolution of the undisposed-of separate personal estate of a married woman, even if married after the passing of the Act, the husband is entitled jure mariti, to the undisposed-of-chattels real to which the deceased was entitled for her separate use, and administration is unnecessary to perfect bis till.': Evans's Estate, In re (1910), 1 Ir. R. 95. MERGER. The technical explanation of merger is as follows : Where a debtor gives his creditor a higher security for the debt due and co- extensive with it. the debt is merged by operation of law irrespective of the intention of the parties: Price v. Moulton, 10 C. P. 561. The principle applicable to the merger to the charges in equity applies also to the merger of least's. The Court is guided by the in- tention and by the absence of express intention either in the instru- ment or by parol; the Court looks to the benefil of tbe person in whom the estati vested: Ingle v. Jenkins (1900), 2 Ch. 368. The present powers of amendment render it much less available than formerly. The rule of equity that the question of merger musl be decided by the intention of the parties applies to tbe merger of well as of charges: Capital and Counties Haul: v. Rhodes, 72 I.. J. Ch. 336; (1903) 1 Ch. 633 ; 88 L. T. 2"> ; 51 W. P. 47<». MILITARY LAW. Persons belonging to the regular army are always subject military law and regulations, and tlnv are obliged to obe which their superiors give them, the ; condition being it--; such orders relate to military affair-;, and ar< no! so evidently illegal that 568 DEFENCES. they lead to the belief that the person giving them is mentally incom- petent. 2. It is otherwise in the case of those who belong to the volunteer militia : they are not subject to military law and regula- tions, and are only obliged to obey their superiors in the cases ex- pressly enumerated in the Militia Act. Outside of such cases they are only ordinary citizens, and their superiors have no more right to give them orders than they have to give orders to persons who do not belong to the militia. 3. A militia officer who causes to be illegally arrested a man who belongs to the militia, makes himself liable to damages: Cole v. Cooke, Q. R. 12 K. B. 519. The expression " military law " includes the Militia Act, and any orders, rules and regulations made thereunder, the Queen's Regu- lations and Orders for the Army ; any Act of the United Kingdom, or other law applying to Her Majesty's troops in Canada, and all other orders, rules, and regulations of whatever nature or kind soever to which Her Majesty's troops in Canada are subject. Every one who is bound by military law to obey the lawful command of his superior officer is justified in obeying any command given him by his superior officer for the suppression of a riot, un- less such order is manifestly unlawful. 2. It shall be a question of law whether any particular order is manifestly unlawful or not. Where war actually prevails the ordinary Courts have no juris- diction over the action of the military authorities, and the mere fact that some of the ordinary Courts are open is not sufficient to constitute a time of peace, and thereby to exclude the operation of martial law : Marais (D. F.) v. General Officer Commanding the Lines of Com- munication. 71 L. J. P. C. 42; (1902) A. C. 109; 85 L. T. 734; 50 W. R. 273. Under the Petition of Right a state of peace is the necessary condition of the illegality of unconstitutional procedure. The law recognises a state of peace and a state of war, but knows nothing of an intermediate state which is neither one thing or the oilier: ;nid though the effect of war is to dissolve contracts and put an end to commercial relations between the subjects of belligerent powers, the actual existence and not the mere imminence of war at the time of tl D of Ihe contract is necessary to bring abou b a result. It is for the State and its rulers and not for private individuals to sel up a standard and to determine questions Of public policy. In these matters the individual must conform to the rule and guidance of the State: Janson v. Driefontein Consolidated Mines, 71 I.. •>. K. B. 857; (1902) A. C. 484: 87 L. T. 372; 51 W. R. 142; 7 Com. Cas. 268. ICI8TAKE. 569 Service in the army or in colonial co i incorporated with the army is Bervice under the lviug, and the Kiug is paymaster, whether the supplies are granted by the Imperial or a Colonial L lature: Williams v. Eowarth, 71 I.. J. P. 0. 115; (1906) A. C. 561; 93 L. T. 115; 21 T. L. It. 070. Where goods supplied to a volunteer regiment are ordered by or on behalf of the officer coi manding, that officer is personally liable for their price: Samuel v. Whetherly, 70 I.. J. K. B. 357 : (1907) 1 K. B. 709 ; 96 L. T. 552 ; 23 T. L. R. 280. Where troops are summoned by Justices of a county to aid in the suppression of apprehended riots the county council cannot be called upon to pay out of the county fund the expenses of housing and feeding them: Beg. v. Glamorganshire County Council, OX L. J. Q. B. 1047; (1899) 2 Q. B. 536; 81 L. T. 372: 48 W. It. 112; 64 J. P. 115. MISTAKE. In order to secure the rectification of an instrument, the clearest evidence is required to be adduced. If the Court, after considering all the circumstances surrounding the making of the instrument, whether it accords with what would reasonably and probably have been the agreement between the parties gauging the credibility of witnesses, paying due regard to their interest in the subject-matter, and weighing their testimony, is satisfied beyond reasonable doubt that the instrument docs not embody the true agreement between the parties, it should rectify it : Clark v. Joselin, 16 O. R. 68. Money paid under compulsion of law cannot be recovered : Moore v. Fallen Vestry (1895), 1 Q. B. 399. The rule is, that to entitle a party to sel aside or vary a deed on the ground of misrepresentation by another party to it. the evi- dence thereof must be the strongest possible; and where a vendor makes verbal statements in relation to property, the correctness of which the purchaser has the means of testing by reference to docu- ments within his reach and does not choose to do so. he will not, on the fans turning out to be different from what they were represented, be entitled to any relief: Coates v. Huron. 21 Chy. 21. The principle established by strrr,, v . Benning (1854), 1 Kni. 168; Readi v. Bentley | 1857), 3 K. X. J. 271 ; and Hole v. Bradbury (1879), 12 Ch. !>. 886, that a publishing agreement between author and a publisher or a firm of publishers is personal to the individuals entering into it: and after the benefit of such an ag ment is not assignable without the other's consent, applies equally to the case of a similar agreement between an author and a limited company: Griffith v. Tower Publishing Co. (1891), 1 Ch. 21. 570 DEFENCES. To induce a Court to declare a deed, absolute on its face, to have been intended to operate as a mortgage only, the evidence of such in- tention must be of the clearest, most conclusive, and unquestionable character: McMicken v. Ontario Bank, 20 S. C. R. 548. The Court will, in a proper case, order a deed to be cancelled, or if registered, a conveyance of the estate to the person properly en- titled ; and that, although his title may be such that he would succeed in defending any action against him at law : Harkin v. Rabidon, 7 Chy. 243. In order that a deed may be reformed by the Court there must be at least two things established, namely, an agreement differing from the document well proved by such evidence as leaves no reasonable ground for doubt as to the existence and terms of such agreement, and a mutual mistake of the parties by reason of which such agree- ment was not properly expressed in the deed : Meneil v. Haines, 17 O. R. 479. A voluntary deed will not be reformed against the grantor : Bellamy v. Badgerow, 24 O. R. 278. Where there was a contract for the sale of a reversion, and the deed purported to relinquish and quit claim the property with no other words of transfer, the Court held that in order to remove any doubt, the vendee was entitled to have proper technical words intro- duced : Golher x. Shatv, 19 Chy. ."ili'.t. The Court will not, in favour of a volunteer, order the due execu- tion of an instrument informally executed, although the relief would be granted to a purchaser for value : Ross v. Fox, 13 Gr. 683. An executed contract for the sale of an interest in land will not be rescinded for mere innocent misrepresentation. But where by error of both parties, and without fraud or deceit, there has been a complete failure of consideration, a Court of Equity will rescind the contract and compel (he vendor to return the purchase money: Cole v. Pope, 29 S. C. R. 291. To induce the Court to vary a written instrument, on the ground of alleged mistake, the evidence must be of the strongest character: Williams v. Felker, 7 Chy. 345. A Court of Equity will not give relief by way of rectification of a written ag] merely on the ground that one of the parties misunderstood its due construction and legal effect at the time of tion. Every party to a contract has a right to assume that the other parties intend it to operate according to the proper sense of the words in which it is expressed : Campbell v. Edwards, 24 (.by. L52. [OE. 571 Parol evidem admissible to shew thai by mistake the written agreement did nol express the true agreement, unless mis- take is expressly charged: McDonald v. Rose, 17 Chy. t;."7. A parly cannot be released from an offer, deliberately made to and accepted by the opposite party, on the ground that his offer turns <>ut to have some differenl effecl from what he supposed it would have: Cousincau v. City of London Fire Ins. Co., 12 P. R. 512. The mistake of one party to an agreement for the purchase of land as to the amount of land purchased, when the mistake is not known to the other party, and there is nothing in the language or conduct of the other party which led or contributed to the mistake, does not give a right of rescission unless a hardship amounting to injustice would be inflicted upon the party by holding him to his bargain, and it would be unreasonable to do so: Tamplin v. James, 15 Ch. D. 215, and Miller v. Dahl, 9 .Man. L. R. 444, followed. 2. If a purchaser of land enters into and retains possession of the land and pays two monthly instalments of the purchase money after he has found out his mistake, be should be held to have elected to affirm his contract, and cannot afterwards have it rescinded: Slouski V. Hopp, 15 Man. L. R. 548, 2 W. L. R. 363. A stipulation contrary to the real intention of the parties having been inserted in a conveyance without the knowledge of the parties to the conveyance or through a misapprehension as to its effect, a party can have the conveyance rectified where it would be against equity and good conscience for the other party to retain the benefit : Lairson v. Jones, 40 N. S. R. 303. Where a deed has been executed in pursuance of and in con- formity with a previous agreement in writing come to between two parties, the Court will not rectify the deed on the ground that due effect has not been given to the intention of the parties. May v. Piatt (00 L. J. Ch. 357; (1901), 1 Ch. 016), and Davie* v. Fitton (2 Dr. & W. 225), followed: Thompson v. Hickman, 76 L. J. Ch. 254; (1907), 1 Ch. 550; 96 L. T. 454 : 23 T. L. R. 311. NOTICE. See also Pubchase without Notice, page 575. It is not true as a general proposition that the knowledge of a fact which comes to a person as secretary of one company is notice or the fact to him as secretary of another company from the mere existence of the common relationship. The question in such a case is whether or not the information he I retary of one company is received by him under such circumstances that it would be his duty to communicate it to the other company: Fenwich, 8to- oart d Co., In re; /><■/' 8( a Fishery Co., Ex parte. 71 L. J. Ch. 321: (1002). 1 Ch. 507; i 572 DEFENCES. NOVATION. When A. is indebted to B., and C. is indebted to A., and the three parties meet together, and A. agrees that C. shall pay B. the amount due by him to A., which C. agrees to do. A. cannot after- wards revoke such order: Mitchell, et ah, v. Turnbull, et al., 2 Thorn. 250 (N.S.). A new contract by novation cannot be created without the assent of the original creditor : Anderson v. Fawcett, vol. 19, 34. See S. C. C. Rep. Appeal allowed 22nd June, 1885. Where services have been performed by one person for the benefit and at the request of another, and have been charged to the latter, the fact that a third person has had judgment recovered against him therefor, by the person rendering them, will not prevent the latter recovering in an action against the person liable in the first instance, unless the subsequent agreement amounts to a novation : Herod v. Ferguson, 25 O. R. 565. Where A. has a contract with B., and B. takes C. into part- nership and gives A. notice, A. has an option whether he will abide by his contract with B. alone or accept the liability of the part- nership. If he elect to abide by his contract with B., C. is not liable for a fraud committed by B. against A. in the respect of the con- tract, though B. was acting within the scope of the partnership business : British Holmes Assurance Corporation v. Patterson, 71 L. J. Ch. 872; (1902), 2 Ch. 404; 86 L. T. 826; 50 W. R. 612. Where the liability of the retired partner is one resting not ou estoppel only, but the firm of which he was a member is the actual debtor, it is necessary to mak» out a case of novation in order to discharge the retired partner: (Scarf v. Jardine (1882), 7 App. Cas. 345, distinguished. McKim v. Bixel, 19 O. L. R. 81. OPTION. A provision in a lease whereby the lessor grants to the lessee an option to purchase the leased property within a limited time, is not a nudum pactum. Such an option is within the time limited binding on a deceased lessor's personal representatives though not so ex- pressed. Statements, whether written or orally made by the lessor as to the terms of the lease, are not after the death of the lessor admissible as evidence in favour of his successor in title, as being declarations against the deceased's interest : Yuill v. White, 5 Terr. L. R. 275. PAYMENT. Most usual way of proving payment is by producing receipt. To an agent or by an agent, good. PA"! .07 u In general, the party who pays monej has a right to aired application of it: bur where money ia p:ii. 139. There is a distinction between cases where payment is made by bill or note payable to bearer in exchange for goods sold at the time, and those where such a bill or note is given for a pre-existing debt. In former case, barter with risks ; in latter case, not so. The legal effect of accepting on account of a debt a bill or note not treated as cash is that of a conditional payment. It implies an agreement to suspend the remedy except in the case of specialty debts or rent, in which last cases no such implication is held to arise. A payment may be made by mere transfer of figures in an at: Eyles v. Ellis, 4 Bing. 112. If goods be accepted in satisfac- tion of a debt, this constitutes payment: Cannon v. Wood, 2 M. & W. 4<>5. Effect of payment into Court: Patton v. Laidlaw, 20 O. R. 189. "Payment of money to a creditor" under R. S. O. 1897, c. 147, s. 3, s.-s. 1: Armstrong v. Hemstreet, 22 < >. R. 336; overruled, David- son v. Fra8er, 23 A. 1\. Bankers to whom as agents a bill of ex- change is forwarded for collection can receive in money only, and cannot bind the principals by setting off the amount of the bill of exchange against a balance due by them to the acceptor: Donogh v. IHllespie, 21 A. R. 292. Effed of payment by cheque: Sawyer v. Thomas, IS A. It. 129. A party receiving a cheque to be applied in a particular way cannot afterwards apply it otherwise, even though ly not have given a receipt: Canada I I >. v. Burley, 9 D. C. C P. 290. Appropriation of payments is to be made (1^ as the • directs at the time of payment ; (2) when there is no direction by the debtor as the creditor directs; (3) when either makes any direction then the law will apply it to the older debt, or as may dm just: Wilson v. Ryhert, 14 O. R. L88. Where a creditor takes security for an existing indebtedness and thi bis account with the debtor in the ordinary running form, charging him with poods sold. and crediting him with inoue\ ■ d, and crediting and charging 574 DEFENCES. notes on account in such a way as to render the original indebted- ness undistinguishable, there is no irrebuttable presumption that the payments are to be applied upon the original indebtedness : Griffith v. Crocker, 18 A. It. 370. Where defendant is making payments on a loan, the plaintiff will insist in the absence of any agreement that the payments be applied first to keep down the interest : McGregor v. Gaulin, 4 U. C. R. 378. A cheque operates as payment until it has been presented and payment refused. In this case on the evidence set out in the report it was held the plaintiff had received the cheque as payment, and the jury having found otherwise, a new trial was granted : Hughes v. Canada Permanent Building and Savings Society, 39 U. C. R. 221. The retainer of an attorney or solicitor to collect a demand and to take such proceedings as he may deem proper to effect this object, gave him authority to receive the amount before or after suit and to discharge effectually the party making the pay- ment : Moody v. Tyrell. P. R. 313. An authority by plaintiff to his attorney to collect the interest due on a mortgage in the plaintiff's and not in the attorney's possession does not entitle the attorney to receive payment of the principal: Palmer v. Winstanley, 23 D. C. C. P. 586. w here a testator gives a legatee an absolute vested interest in a defined fuud, the Court will order payment on his attaining twenty-one, notwithstanding that by the terms of the will payment is postponed to a subsequent period. Roche v. Roche, 9 Beav. 66, followed : Goff v. Strohm, 28 O. R. 553. Payment under protest of disputed taxes in order to avoid summary execution does not preclude the party from afterwards taking proceedings to have the assessment quashed. Judgment appealed from (N. B. Rep. 591). reversed: Ex parte Lewin, 11 S. C. R. 484. The party having a lien on land can- not under the Manitoba Interpleader Act claim money paid to sheriff as against an execution creditor: Federal Bank of Canada v. Cana- dian Bank of Commerce, 13 S. C. R. 384. Land belonging to a trust estate having been sold for taxes, dur- ing the year allowed for redemption the trustee, who had been newly appointed, paid the taxes for the current year in ignorance of the sale, and subsequently on learning the fact decided not to redeem, as the arrears exceeded the value of the land: Held, that they were not entitled to recover back the money as paid under a mistake of fact : Trusts Corporation of Ontario v. City of Toronto, 30 O. R. 209. A contract for life insurance is complete on delivery of the policy to the insured, and payment of the first premium. Where the insured, being able to read, having ample opportunity to examine the policy, and not being misled by the company as to its terms, nor induced not to read it, neglects to do so, he cannot after paying the premium be heard to say that it did not contain the terms of the contract agreed upon : Mowat v. Provident Havings Life Assurance Society, 32 S. C. R. 147. 575 PURCHASE WITHOUT NOTICE OP REGISTRY TITL On this defence see Et. S. I >. 1897, c. 119, t. 36 (parens value without no I B. S. <>. 1897, c. 121, b. 38, purchaser of mortgage. For purposes of registration of deeds the North-West Territories are divided into districts, and it is provided i>y Ordinance that n tratioo of a chattel mortgag aot followed by transfer of possessioa Bhall only have effect in the district in which it is made. It ie provided that if the mortgaged goods are moved into another district, a certified copy of the mortgage shall be filed in the registry office thereof within three weeks fr the time of removal, otherwise the mortgage shall be null and void as against subsequent p etc.: Held, reversing the judgment in appeal that the "subsequent purchaser" in such case must be one who purchased after the expiration of the three weeks from the time of removal, and that though no copy of the mortgage is filed as provided, it is valid as against a purchase made within such period: Hulberi v. Peterson, 36 S. C. R. 324. A plea of purchase for value without notice cannot be set up against the Crown: Attorney-General v. McNulty, 11 Chy. 281. The execution and registration in accordance with the R. S. O. (1877), c. Ill, ss. 9. 67. of a discharge of a mortgage in fee simple made by a tenant in tail, re-conveys the land to the mortgagor barred of the entail: Lawtor v. Latolor, 10 S. C. R. 194. Quaere, whether a person who has laid ou! land into town village l"ts for sale cannot afterwards, if he find he cannot di- of them as such, or for any other reason, replace his land as it before: In re Allan, 10 < >. R. 110. In the case of a registered title actual notice of the title of an adverse claimant is required to affect the grantee holding und< registered instrument. The mere fact that such adverse claimant is in actual possession of the land is not sufficient notice, nor will actual notice if the grantee is aware of the fad that a person other than his grantor is in possession: Roe \. Braden, '24 ('hy. 589. The plaintiff purchased land from .7.. who had purchased from G.. no conveyance having been made to J. by G., who afterwards conveyed to T.. a son of the plaintiff, who mortgaged the property and r- sented it as his own. the plaintiff being all the while in possession. The title was not a registered one; Held, that i' jees were effected with notice of plaintiff's title hy reason of his possession. although there was no pretence of actual notice to them, and they having omitted to set up the registry laws as a defence, liberty given them to apply for leave to do so if so advised. The rule that possession is notice of the title of the party so in i con- sidered and acted on: Grey v. Voucher. 15 Chy. ' 576 DEFENCES. The doctrine of consolidation of mortgages laid down in Vint v. Paget (1858), 2 D. & J. 611, and other cases to the same effect, has been too long established to be now overthrown. Therefore, where an owner of different properties mortgages them to different persons, and the mortgagees afterwards become united in title, the holder of the mortgages has the right to consolidate them, and to be refused to be redeemed as to one without payment of the other of what is due to him of all, not only as against the mortgagor out also as against the person to whom the mortgagor has by one deed assigned the equity of redemption of all the properties : Pledge v. White (1896), A. C. 187. The rules once a mortgage always a mortgage, and that the equity of redemption of a mortgage " must not be clogged '' are still in force ; to the full extent of the meaning of them, that is that the mortgagor on payment of the debt secured by the mortgage is entitled to have a mortgaged property restored to him in its entirety unfettered and undiminished in value: Bice v. Nokes & Co. (1909), 2 Ch. 245, (1902) A. C. 24. See Santley v. Wylde (1899), 2 Ch. 474, where it was held that a mortgagee may stipulate in his mortgage deed for a collateral advantage for himself beyond the payment of the sum advanced and interest, and may enforce the bargain against his mortgagor, provided it is not unconscionable or oppressive. See also Biggs v. Hoddlnott (1898), 2 Ch. 307. Santley v. Wylde was dis- approved of, (1902) A. C. 24, ut sup. General charge for value on all the existing property of the mort- gagor is not void for uncertainty, if the property to which it attaches can be ascertained at the time of enforcement. Such a charge is not contrary to public policy: In re Kelsey (1899), 2 Ch. 530. Held, following Truesdale v. Cook, 18 Chy. 532, and Dynes v. Bales, 25 Chy. 593, that the grantee in a subsequent conveyance registered before the registry of a previous conveyance from the same grantor, of which the grantor had no actual notice, could maintain an action to have the subsequent conveyance declared entitled to priority over the previous conveyance, and that the Court had power so to order upon such terms as seemed just : Weir v. Niagara Grape Company, 11 O. R. 700. The plaintiff registered a lien against certain lands. On the day before such registration the defendant, an intending pui'chaser, had searched the registry office and found only two incumbrances registered against the property. Shortly afterwards the defendant completed his purchase, and having paid off the two incumbrances, registered dis- charges thereof with his deed of purchase, but as he did not make any further search he did not discover the plaintiff's lien : Held, that the defendant was entitled to stand in the place of the incumbrancers whom he had paid off, and to priority over the plaintiff's lien. The NOTICE. try Act does Dot preclude inquiry as to whether there \ in t'acl : the Courl was □ mpelled aa a conclusion of law tu Bay that the defendant bad notice of what he was doing, and bo could nol plead mistake. Brown v. McLean, 18 0. R. 533, specially considered: Abell v. Morrison. !'.» < >. K. 669. An execution creditor does nol occupy as favourable a position under the Registry Acl as a purchaser for value without notice; and he may be defeated by a deed made before, though registered after, the lodging of the execution in the hands of the sheriff: Ruttcll v. Russell. 28 Chy. 419. Though a plan nol certified as required by the Registry Act, It. S. O. 1687, C. Ill, s. 82, s.-s. 2, has even when deposited in the registry otnce no effect under the registry law, yel in a deed reference may be made to it as it may to any other document in the registry office or elsewhere, for the description or designation of a Ferguson v. Winsor, 10 0. R. 13. See S. C. 11 O. R. SS. To postpone a registered title on the ground of notice of a deed having been previously executed, though not registered, the evidence of notice must be quite satisfactory and distinct: Hollywood v. \\ aters, 6 Chy. 4ol. Where a mortgage was created by the deposit of mortgages, and the borrower signed a memorandum stating the sum lent and times for repayment and agreeing to execute a writing to enable the lender to transfer or control the mortgages so deposited: Held, that this randum did not require registration, not being in the language of C. S. U. C. c. 89, s. 17. "a deed, conveyance or assurance aftect- ing lands: " Harrison v. Armour, 11 Chy. 303. As against a purchaser for value, a voluntary deed, though regis- tered, is void, and as this objection will avail the purchaser in any proceedings adopted by or against him, the Court will not interfere to remove the registration of the void deed as a cloud on the title: Buchanan v. Campbell, 14 Chy. 163. A conveyance by an heir-at-law for a nominal consideration regis- tered prior to will: Held, not to cut out the will: Wilkinson v. Conklin, 10 U. C. P. 211. The rule of equity which allows the holder of several mortgages , , . . created by the same mortgagor on separate properties to consolidate tion of the debts, and insist on being redeemed in respect of all before r. mortgages leasing any one of his securities, is not " tacking," and is not such a claim as the Registry Acl declares should not be allowed to prevail against the provisions thereof: Dominion 8. and I. Society v. Kitt- ridge, 23 Chy. 631. 578 DEFENCES. A registered purchaser buying, with actual notice of an unregis- tered deed of an unascertained part of the land, takes subject to what- ever such deed conveyed; and if lie choose to purchase without proper inquiries as to its contents, his erroneous supposition as to the land i hereby conveyed, or his ignorance of the names of all the persons interested under the deed, does not vary the case : Severn v. McLellan, 19 Chy. 220. The rule that a mortgagee shall not be redeemed in respect of the mortgage without being redeemed also as to another mortgage, applies as well in a suit to foreclose as to redeem. In such a case the prop- erty embraced in one mortgage realized more than sufficient to dis- charge it. The plaintiff, an execution creditor of the mortgagor, ob- tained a security on the lands comprised in such mortgage, which was registered after it but without notice thereof. On a sale of the lands embraced in another mortgage, a loss was sustained by the mortgagee : Held, that the defendant, the mortgagee, had not the right as against the plaintiff to consolidate his mortgages and make good the loss on the one out of the surplus of the other sale, the policy of the Registry Act being to give no effect to hidden equities : Johnson v. Reid, 29 Gr. 293. The only instruments executed before patent which can be regis- tered are such as create a mortgage, lien or incumbrance on the land: Holland v. Moore, 12 Chy. 296. A vendor does nol complete his title until his deed is registered, i.e., registration is essential to the title : Laird v. Paton, 7 O. R. 137. Severance of one lot by conveyance by owner of two lots implies grant of easement over the adjoining lot : Israel v. Leith, 20 O. R. 361. A municipal council builds a sewer through land with oral consent of owner. A purchaser of the land without notice of the consent or of the existence of the sewer is protected by the Registry Act. Jarvis v. Toronto, 21 A. R. 395, referred to: Ross v. Hunter, 7 S. C. R. 289. The earlier cases were : Bell v. Walker, 20 Chy. 538 ; Qrey v. Ball, 2.'! Chy. 390; Miller v. Brown, 3 O. R. 210. See also Pierce v. Canada Permanent, 24 O. R. 426, which postponed to a second mortgage advances made to the mortgagor under a building mortgage prior in time to the second mortgage. This state of the law was remedied by statute, 1894 (Ont.), c. 34 (now R. S. O. 1S97, c. 136, s. 99), but see the cases cited in Hutson v. Valliers, 19 A. R. 161. There are two cases where the doctrine applies. (1) "Where the party charged has notice that the property in dispute is encum- bered or in some way affected in which he is deemed to have notice of the facts and instruments, to a knowledge of which he would have been led by due enquiry after the fact he actually knew. (2) Where the conduct of the party charged evinces that he had a suspicion of the truth and wilfully or fraudulently determined to avoid receiving PURI BLASE WITHOUT Mil I actual ootice of ii : Moore \. Kane, 24 O. ii. 548. To postpone a deed which has acquired priority over an earlier conveyance by registration, actual notice sufficient to make the conducl of the Bubsequenl purchaser in taking and registering his conveyance fraudulent is indispensable (see :::; N. B. Rep. 310) : Neiv Brunswick I'll. Go. v. Kelly, 26 S. 0. tC. 341. Held, affirming the judgment appealed from (7 B. C. Rep. 12. xub. nom. Kirk v. KirklonS), that a certificate of title issued on registration of a deed from the as- sessor of taxes issued to a purchaser at a tax sale does not of itself oust the prior registered owner of the land described in the register, but the holder must prove that all the statutory provisions to authorize a sale for taxes had been complied with: Johnson v. Kirk, 30 S. C. R. 344. The provisions of section 94 of the Territories Real Property Act (R. S. O. c. 51), as amended by 51 Vict. c. 20 (D.), do not displace the rule of law that an execution creditor can only sell the real estate of his debtor subject to the charges, liens and equities to which the same was subject in the hands of the execution debtor, and do not give the execution creditor any super- iority of title over prior unregistered transferees, but merely protect the lands from intermediate sales and dispositions by the execution debtor: Jellett v. Wilkiej Jellett v. Scottish, Ontario and Manitoba Land Co.; Jellett v. Powellj Jellett v. Erratt, 26 S. C. R. 2S2. R. S. O. 1877, c. Ill, s. 81, declares that " no equitable lien, charge or interest affecting land shall bo deemed valid in any Court in this province after this Act shall come into operation as against a regis- tered instrument executed by the same party, his heirs or assigns : " Held, that this section does not apply to a case in which the party registering such instrument has notice of the equitable lien, charge or interest, even though the same has been created by parol: Rose v. Peterkin, 13 S. C. R. 677. See S. C. sub nom. Peterkin v. McFarlane. 9 A. R. 429. Semble, thai standing timber is within the provisions of the registry laws ; and that the purchaser of a right to cut the same is affected by notice of the conveyance from the original owner, and a mortgage back from his vendee: McLean v. Burton, 24 Chy. 134. Held, following Truesdale v. Cook, 18 Chy. ."32, and Dynes v. Bales, 25 Chy. 593, that the grantee in a subsequent conveyance rois- tered before the registry of a previous conveyance from the same grantor, of which the grantee had no actual notice, could maintain an action to have the subsequent conveyance declared entitled to priority over the previous conveyance, and that the Court had power order upon such terms as seemed just: Weir v. Niagara Crape Co.. 11 O. R. 700. In the case of a registered title actual notice of the title of an adverse claimant is required to affect the grantee holding under a registered instrument. The mere fact that such adverse claimai in actual possession of the land is not sufficient notice; nor will it 580 DEFENCES. be actual notice if the grantee is aware of the fact that a person other than his grantor is in possession: Roe v. Braden, 24 Chy. 5S9. The relationship arising out of an agreement for the sale of land on payment of the purchase money, and the taking of possession by the purchaser, is that of trustee and cestui que trust, and as the former has no effective right of entry, the Statute of Limtitaions does not apply iu favour of the possession of the cestui que trust. The prin- ciple of the decision in Warren v. Murray (1894). 2 Q. B. 648, applied. A mortgagee from the trustee under the above circum- stances, who takes and registers his mortgage in ignorance that any other than the mortgagor is in occupation of the land, and without notice actual or constructive of any equitable right of the cestui que trust, is entitled to set up the Registry Act, which is retrospective, and to plead it if it is necessary to do so. Bell v. Walker, 20 Chy. 55S, and Grey v. Ball, 23 Cdy. 390, followed : Building and Loan Associa- tion V. Papps, 27 O. R. 470. The principle upon which the Registry Act proceeds is that a person acquiring land ought to see whether there is anything registered against the land he is about to acquire, and that he is assumed to search the registry for that purpose ; but this does not apply to one who is not acquiring but parting with an interest in land, and registration is not notice in such a case : Trust d Loan Co. v. Shaiv, 16 Chy. 446. A conveyance of devise of grow- ing timber is within the Registry Act: Ellis v. Grubb, 3 O. S. 611. Approved in Ferguson v. Mill, 11 U. C. R. 530. Held, that the prior registration of a mortgage with a power of sale enabled the mortga- gee in the proper exercise of such power to sell free from the claim of a purchaser under a prior unregistered conveyance : Daniels v. David- son, 9 Chy. 173. A subsequent mortgagee who had not actual notice : Held, not bound by the registration of a prior mortgage, the memorial of which insufficiently described the premises : Reid v. Whitehead, 10 Chy. 446. The registration of a plan of a subdivision of a town lot, and sales made in accordance with it, do not constitute a dedication of the lanes thereon to the public: In re Morton and City of St. Thomas, 6 A. R. 323. Though a plan not certified as required by the Registry Act, R. S. O. 1877, c. Ill, s. 82, s.-s. 2, has even when deposited in the registry office no effect under the registry law. yet in a deed reference may be made to it as it may to any other docu- ment in the registry office or elsewhere for the description or designa- tion of a lot: Ferguson v. Winsor, 10 O. R. 13. See S. C., 11 O. R. 88. As against a purchaser for value a voluntary deed, though regis- tered, is void; and as this objection will avail the purchaser in any proceeding adopted by or against him, the Courl will not interfere to remove the registration of the void deed as a cloud on the title: Buchanan v. Campbell, 14 Chy. 163. Registration of a subsequent deed will not give priority over another unregistered deed from the in point of time unless a valuable consideration PURCHASE WITHOUT NOTICE. 5t sufficient proof for this purpose: Barber v. McKay, 19 < >. R. 46. M. having com certain lands to the plaintiff, willed one-half of ii to bis uep] the remaining half to others, and the nephew conveyed the whole to a purchaser for value without notice of the plaintiffs deed, both will and deed to this purchaser being registered before the plaintiff's deed: Held, thai the registration of the will and of the deed prevailed over plaintiff's unregistered deed; as to the moiety devised plaintiff was entitled to hold this part under the deed from M. as agafnsl devisees under the will: McDonald v. McDonald, 44 T*. C. It. 291. In 1831 A. devised his farm to his widow in fee and left her in possession. The will was never registered; and shortly after the testator's death his eldest son and heir went into possession with the mother, and so continued until his mother's death in 1S7.4; the son managing the farm and being reputed owner during this period. After his mother's death he was in sole possession, and in 1SG2 he mortgaged to a person who had no notice of the will or of the widow's title: Held, that the widow's heir could not claim the prop- erty against the mortgagee: Stephen v. Simpson, 15 Chy. 594, 12 Chy. 493. The Registry Acts do not apply to instruments executed pre- viously io the grant from the Crown: Casey v. Jordon, 5 Chy. 467. The only instruments executed before patent which can be registered are such as create a mortgage lien or incumbrance on the land : Holland v. Moore, 12 Chy. 29G. Express notice of an unregistered assignment of unpatented land has the same effect as like notice of an unregistered conveyance after patent : Ooff v. TAster, 13 Chy. 406, 14 Chy. 451. A lease for four years with covenant for renewing for four years more: Held, not to require registration, actual possession having gone along with the lease; and such a lease though not registered was held valid as respects the covenanted renewal a between the lessee and subsquent mortgagees of the lessor: T.atch v. Bright, 1(> Chy. 653. The doctrine of constructive notice and the de- fence of purchase for value, as applicable to this country, commented upon : Henderson v. Graves, 2 E. & A. 9. A purchaser though he may have had notice is entitled to the benefit of the position of the party under whom he claims, where such a party was a purchaser for value without notice: Rogers v. Shortis, 10 Chy. 243. In the case of a charge upon equitable property where tin- legal estate is outstanding, the defence of purchase for valuable consideration with- out notice is in general inapplicable, the rule being that all such charges take rank according to priority in point of time: Utterson Lumber Co. v. Bennie, 21 S. ('. R. 218. Hell, that the defendant in this case having notice of an actual travelled way across his land. was affected also with notice of the origin as well as of the existence of the right: Dixon v. Cross, 4 O. R. 4(55. 582 DEFENCES. Where such motives exist in the mind of a solicitor as would be sufficient with ordinary men to induce them to withhold information from the client, the presumption is that it was withheld ; and the uncommunicated knowledge of the solicitor is not imputed lo the client as notice: Cameron v. Hutchison, 16 Chy. 52G. R. S. O. 18&7, c. 114, s. S3, providing that no lien, charge or interest affecting land shall be valid as against a registered instrument executed by the same party, his heirs or assigns, is not restricted to interests derived under written instruments susceptible of registration, but applies to all interests. If the owner of land gives permission to the muni- cipality to construct a drain through it, the municipality after the work has been done has an interest in the land to which the registry laws apply, whether the agreement conveys the property, creates an easement, or is a mere license which has become irrevocable ; and if there has been no by-law authorizing the land to be taken, such interest is under the section invalid as against a registered deed executed by an assignee of the owner, a purchaser for value without notice. Ross v. Hunter, 7 S. C. R. 289, distinguished. Judgment in 21 A. R. 395, affirmed: City of Toronto v. Jarvis, 25 S. C. R. 237. A legal purchaser for value will be postponed to a prior equit- able encumbrancer, of whose charge he has had no notice, if he is guilty of such gross negligence as would make it unjust for him to be allowed to take up the position of a bona fide purchaser for value, and deprive some one else of his security. It is not necessary that he should have been guilty of fraud, or of that wilful negligence which leads the Court to conclude that he is an accomplice in the fraud : Dictum of James, L.J., in Ratcliffe v. Barnard (40 L. J. Ch. 777; L. R. 6 Ch. 652), to that effect, dis- sented from: Oliver v. Hinton, 68 L. J. Ch. 583; (1899), 2 Ch. 264; 81 L. T. 212; 48 W. R. 3. It is not essential to the validity of a chattel mortgage to secure future advances that such advances should be made to enable the mortgagor to enter into business as well as to carry it on : (Moulding v Denting, 15 O. R. 201, followed. Newlands v. Higgins, Re Great West Saddlery Co., 7 W. I.. R. 59; 1 Alta. L. R. 118. To make valid against creditors of the vendor a sale of timber to be cut down by him, there must be an actual delivery to the pur- chaser, after the timber is cut down, followed by an actual and con- tinued change of possession as in the case of other chattels : McMillan v. McZhcrry, 15 Chy. 133. The facts that a bill of sale, on the face of it absolute, is in truth only a mortgage, and that the vendor after the sale is allowed to remain in possession of the goods, are badges of fraud to be hed by a jury, not conclusive proofs of fraud : Hunter V. Corbett, 7 U. C. R. 7.1. PUBCHASB UITIIOIT Mil h 1.. 583 Held, that the fact thai as to part of the consideration fur their mortgage the defendants had not made an actual advance, but . liable on promissory notes, did not invalidate the mortgage, R. S. O. 1S77, c. 119, not requiring, as does the corresponding Eng- lish Act, that the consideration should be truly expres ed: Marthin- son v. Patterson, 19 A. it. 188. See also Paterson v. Maughan, 30 U. 0. R. 371. In statin:,' the amount of indebtedness a fractional part of the sum was omitted. The mortgage was intended to secure $5,066.74, but was drawn for $5,000: Held, to be a security for $5,000 on the principle of Mader v. McKinnon, 1!1 S. C. R. 645; Hamilton v. Har- rison, 46 U. C. R. 627; Marthinson v. Patterson, 1!) A. R. 188; A. E. Thomas (Limited) v. Standard Bank, 1 O. W. N. 382. A sale of chattels by the grantee of a bill of sale under an ex- authority from the grantor will be treated by the Court upon the same principle as a sale by mortgagee under a power of sale, or as a sale by the Court under the Interpleader Rules. Where a bill of sale of the furniture and effects in a house provided for the payment of the principal sum advanced and interest by means of ten monthly instalments and after one instalment had been paid the grantor authorized and requested the grantee to sell the house and furniture and deduct whatever the grantor was liable to pay under the bill of sale, and the sale realized more than enough to pay the principal and interest due to date of sale, the grantee will not be entitled to claim any interest after the date of that sale ; West v. Diprosc, G9 L. J. Ch. (1900), 1 Ch. 337; S2 L. T. 20; 4S \y. R. 3S9 ; 64 J. P. 2S1 ; 7 Manson 152. Where a chattel mortgage is taken to secure a debt, the time for payment may be extended beyond a year: Kerry \. James, LM A. R. 33S. The affidavit of bona fides in a chattel mortgage taken to secure the mortgagee against his indorsement of two promissory notes, which were referred to in a recital, stated that the mortgage " was executed in good faith and for the express purpose of securing me, the said mortgagee therein named, against his indorse tain promissory note for (sic), or any renewal of the said recited promissory notes:" Held, "that his indorsement" might be read "my indorsement," as this was clearly a clerical error, but that even with this correction, the clause remained vague and incomplete, and that the affidavit was therefore fatally defective: Boldrick v. Ryan, 17 A. R. 253. Where, by virtue of an acceleration clause in a mortgage deed, Vccelera- the whole of the mortgage money has become due by default of pay- t ' on claus* i for the whole by 084 DEFENCES. the mortgagee against the mortgagor, in an action solely upon the covenant for payment contained in the mortgage deed, the defend- ant is not entitled, upon payment of interest and costs, to have the judgment and execution issued thereon set aside. The acceleration is not in the nature of a penalty, but is to be regarded as the contract of the parties. Rules 359, 360 and 361, and the long form of the acceleration clause, R. S. O. 1887, c. 107, schedule B., s. 16, con- sidered : Wilson v. Campbell, 15 P. R. 254. The affidavit of bona fides attached to a chattel mortgage, duly executed and filed, stated that the mortgagor was justly and truly indebted to the mortgagee in a named sum. A loan was made in good faith upon the security of the chattel mortgage, but the money was not paid over for five days after the affidavit was made. In an action by the assignee for the benefit of creditors of the mortgagor under a subsequent assignment, to set aside the mortgage : Held, revers- ing 27 O. it. 545, that the mortgage was valid : Martin v. Sampson, 24 A. R. 1. An affidavit that the mortgage was not executed for the purpose of preventing the creditors of such mortgagor from obtaining payment of any claim against — not saying against whom — Held, clearly not a compliance with the Chattel Mortgage Act : Re Andrews, 2 A. R. 24. A chattel mortgage conveyed to the plaintiff the stock-in-trade of the mortgagor, which purported to be enumerated in a schedule, and was described as being on certain named premises. The schedule, after setting out the goods, proceeded : " And all goods . . . which at any time may be owned by the said mortgagor and kept in the said store for sale . . . , and whether now in stock or hereafter to be purchased and placed in stock : Held, that after- acquired stock, brought into the business in the ordinary course thereof, uecame subject to the chattel mortgage as against execution creditors of the mortgagor, notwithstanding that their writs were in the hands of the sheriff at the time when such stock was brought into the business ; the equitable right of the mortgagee under such iiif-nt attaching immediately on the goods reaching the premises: Coyne v. Lee, 14 A. R. 503. In a bill of sale certain goods were described as " one brown stallion, two years old; one bay horse, eight years old; one black mare, nine years old:" Held, a sufficient description: Corneill v. Abell, 3] Q. C. C. P. 107; Boldrick v. Ryan, 17 A. R. 253. See Conneii v. Hiclcock, 15 A. R. 518. Crops to be grown may bo covered by a chattel mortgage and a chattel mortgage of "crops which may be sown during the currency of this moi " covers crops sown after the mortgage falls due but remains unpaid: Canada Permanent Loan cG Savings Co. v. Todd, 22 A. R. 515. PI i:< EASE \'. i : I The words "one single buggy" in a chattel mortgage: Held, not a sufficienl description to satisfy R. S. O. 1877, c. 119, b. 23: Holt \. Carmichael, - A. >*. ''•■';'.). Seven borses, three lumber waggons, one carriage, one pleat sleigh, all tin- household furniture in possession of the said party of the firsl part, and being in his dwelling-house, all the lumber and logs in and about the sawmill and premises of '1' intor, and all the blacksmith's tools now in possession of the said party of the first part, six cows and four stoves: Held, a sufficient description as to the household furniture, lumber and logs, and insufficient as to the other goods: Rose v. Scott, 17 U. C. R. 385. A description of the goods as " being now on the premises occu- pied by the mortgagors in the town of Peterborough, being lot, &c," and being composed of " one stumping macnine, one prize buggy, one lumber waggon complete, &c. : " Held, sufficient as to all the goods, though the stumping machine and waggon were not on the premises: Bertram v. Pendry, 27 D. C. C. P. 371. " One piano, Dominion make, numbered 2773,'' is a sufficient description in a bill of sale: Field V. Hart, 22 A. R. 449. Bemble, that a piano on board a vessel would not pass to a mortgagee under the words " with her boats, guns, ammunition, small arms, and appurtenances:" St. John v. Bullivant, 45 U. C. R. 614. In a chattel mortgage made by M. & Co. the goods were described as " two sets of blacksmithing and one set of waggon maker's tools complete, together with all their floating capital, stock-in-trade, to the value of $1,000, connected with the business they carry on in the said village of Waterdown, as waggon and carriage builders, general blacksmiths, etc., under the name and firm of M. «.V Co.:" Held, an insufficient description as regarded the tools: Mason v. Mot-Donald, 25 U. C. C. P. 435. A mortgage to secure the plaintiff as indorser of notes not payable within a year: — Held, invalid: May v. Security Loan & Savings Co., 45 T. C. it. 106. A chattel mortgage, given to secure the mortgagee against his indorsements fur a mortgagor, must shew on its face that the notes indorsed, or any renewals thereof, will fall due within the year. otherwise the mortgage will be void against the creditors or purchasers, but not against the assignee in insolvency: Ontario Panic y. Wilcox, 32 T. C. R. 400. Boynton v. Boyd, 12 U. C. C. P. 334; Beaton v. Flood. 29 O. R. 87. Where possession has been taken under default in the mortg within a year from its filing, re-filing is not necessary: Ro. v. ElUott, l! O. C. C. P. 221. 586 DEFENCES. Held, following Porter v. FUntoft, 6 U. G. C. P. 335, and Ruttan v. Beamish, 10 U. C. C. P. 90, that an action will not lie at the suit of the mortgagor of chattels, before default in payment, where there is no proviso in the mortgage for possession until default ; and that ev< n if an action would lie, the jury should be told that the plainlift could recover only to the extent of his interest in the goods and for the damage done to such interest, instead of, as in this case, fov their full value, ns in the case of wrong-doer: McAuley v. Allen, 20 I . C. C. P. 417. A purchaser of goods who neglects to comply with s. 6 of the Bills of Sale Act cannot invoke its provisions as against a subsequent purchaser in good faith, and the latter, even though he also has not complied with the Act, obtains priority : Winn v. Snider, 26 A. R. 384. A formal defect in a chattel mortgage may be cured by a con- veyance at any time before an execution reaches the sheriff's hands, but such conveyance, whether effected by a deed or by delivery only, has no retroactive operation, and if void for intent to prefer under K. S. O. 1877 c. 118, would not suffice to cure the defects: Smith v. Fair, 11 A. R. 755. The owner of land upon which there are fixtures, such as machinery in a mill, has a right to sever the chattels from the realty ; and therefore a mortgage by him upon the fixtures was held not to be prejudiced by his subsequent mortgage of the land: Ross v. Hope, 22 U. C. C. P. 4S2. The purchaser of a piano under a hire receipt (by which the property was to pass to him only on completion of certain payments on account), before he had paid the required sum, agreed with his wife that she should purchase his interest and pay the balance due the vendors. There was no bill of sale registered nor such change of possession as required by the Bills of Sale and Chattel Mortgage Act, R. S. O. 1897 c 148: — Held, that the transaction was invalid as against execution creditors under s. 37 of that Act, and was not within s. 41, s.-s. 4, which is intended to except only conditional sales of chattels within R. S. O. 1897, c. 149, which this was not :— Held, however, that the wife was entitled to be subrogated to the rights of the vendors of the piano to the extent of the payments made by her: Boy v. McTavish, 32 O. R. 187. An immaterial variation between a chattel mortgage and the copy subsequently filed does not invalidate the re-filing. A mistake in the number of the lot where the chattels were, was held to be immaterial under the circumstances: Walker v. Niles, 18 Chy. 210. Book debts are not within the Chattel Mortgage Act R. S. O. 1887, c. 125, and amending Act, 55 Vict. c. 26, and a transfer of them does not require registration : Thibaudeau v. Paul, 26 O. R. 3S5. PT R< EASE WITHOUT NOG [< E. 587 The mortgage covered growing crops: — Held, that such crops being incapable of delivery or change of possession withoul change of occupation of the land, the mortgage us to them was nol within the Chattel Mortgage Acl : Hamilton v. Harrison, 46 I . 0. fct. 127; Laing v. Ontario Loan I'. C. R. 114, explained; Bloom- field v. Eellyer, 22 A. R. 232; Grass \. Lttstin, 7 A. It. .".11 ; Comeron v. Gitoon, IT o. R. 233. An assignee fur the benefit of creditors under a general assign- ment made and registered pursuanl to the Assignments and Prefer- ences Act, It. S. O. 1887 c. 124, may renew a chattel mortgage made in favour of his assignor withoul the execution and registration of a specific assignment of thai mortgage. A renewal statement in itself in proper form alleging title through the assignment for the benefit of creditors is sufficient : Fleming v. Ryan, 21 A. It. 39. Oral lease of farm and chattels. Delivery and change of posses- sion: see Oliver V. X < ir house, 8 A. R. ~\'-2. It is not a question of law, but for the decision of a jury, under all the circumstances, whether there has been an immediate and con- tinued change of possession sufficient to satisfy the statute: Waldie v. Grange, 8 U. C. C. P. 431. Remarks upon the policy of the Chattel Mortgage Act : Barker v. l.tcson, 1 O. R. 114. The mortgage showed the debt in the proviso as only becoming due and payable at a future day, but the consideration was stated to be money acknowledged to be paid for the transfer of the property, and the evidence shewed it was given to secure an overdue debt : — Held, that the mortgage could be upheld, regarding it as given for a present debt to be paid at a future day: FarWnger v. McDonald, 45 U. C. It. 233. Where a bill of sale was made to two jointly, and filed on an affidavit of bona fides by one, but the evidence shewed that the consideration was made up of two bad debts, due to the vendees separately: — Held, sufficient. McLeod v. Fortune, 19 D. C. R. 100. The decisions in the cases of grantors of bills of sale and chattel who remain in possession of the goods and sell them in the ordinary course of their business, as in National Mercantile Bank v. Eampson, 5 Q. B. I >. 177. Walker v. Clay, lit L. .1. Q. B. 560, and De'drick v. Ashdovm, 15 S. C. R. 227, apply also in the case of claims under lien notes: Brett v. Foorsen, 7 W. L. R. 13, 17 Man. L. R. 241. There is no longer objection to a loan being made by one member from the monies of a firm, and the taking as a security then for a i mortgage himself: Hobos Hardware Co. v. Kitchen, 17 O. R. 363. 588 DEFENCES. Held, that where the first filing was on the loth May, 1852, a re-filing on the 14th May, 1853, was clearly in time: Armstrong v. Ausman, 11 T T . C. R. 498. There hein^ no re-demise clause or proviso in the mortgage whereby the mortgagor might have remained in possession until default, the Court was bound by the decisions in McAuley v. Allen, 20 U. C. C. P. 417, and Samuel v. Coulter, 28 U. C. C. P. 240, to hold that upon the execution of such mortgage the suppliants were entitled to immediate possession of the property granted thereby, and might if they had pleased at that time have exercised their right to sell thereunder without the mortgagor's intervention and consent : Merchants Ban]; of Toronto v. The Queen, 1 Ex. C. R. 1. A mortgage of growing crops or crops to be grown cannot prevail over a prior execution in the hands of the sheriff against the goods of the mortgagor: Clifford v. Logan, 11 M. L. R. 423 (Man.). A chattel mortgage covering growing crops, or crops to be grown, does not come within the provisions of the Bills of Sale Act, R. M. S. c. 10, so as to need filing under the Act to preserve its validity : Clifford v. Logan, 11 M. L. R. 423 (Man.). When the transaction evidenced by an instrument in the form of an absolute bill of sale is in fact the giving of security for an exist- ing debt, the parties cannot eva^de compliance with ss. 2 and 3 of the Bills of Sale Act, R. S. O. 1897 c. 148, merely by the form of the instrument. If, however, the real transaction is a sale with a right of re-purchase upon certain terms, the vendor can only be re- quired to observe the provisions of s. 6: Hope v. Parrott, 7 O. L. R. 496. Conditional Sales Act (R. S. O. 1897 c. 149) requires name and address of manufacturer to be stamped upon manufactured article. Construed strictly : Mason v. Lindsay, 4 O. L. R. 365 : Toronto Fur- nace Crematory Co. v. Ewing, 1 O. W. N. 467. The creditors against whom by section 4 of 55 Vict. ch. 26 (O.) taking possession under a defective chattel mortgage is declared to be of no avail, are creditors having executions in the sheriff's hands at the time possession is taken, or simple contract creditors who, at that time, have commenced proceedings on behalf of themselves and other creditors to set aside the mortgage, or an assignee for the ral benefit of creditors, who, however, stands in no better posi- tion ; and possession taken before the assignment cures all formal defects : Gillard v. Bollert, 22 A. R. 138. RELEASE. After breach a contract can only be discharged by release under seal or by accord and satisfaction. BBLBA8B. Before breach it may I)'' discharged l>y parol. Release of one of two join! or joint and several debtors is a dis- charge "f all: Nicholson v. Revill, 4 A. & E3. 675 : bui not so the release of one co-debtor, reserving remedies again r: Willi* v. De Castro, lit I.. J. C. P. 24:;; or a release of the principal debtor, ring rights against a surety: Bateson v. Gosling, I.. R. 7 C. I'. 9. An unqualified covenant not to sue has the effeel of a release on the ground of avoiding circuity of action: Ford v. Beech, 11 Q. B. 853. Fraud can only be relied on in reply to a release contained in a contract, when the plaintiff can disaffirm the contracl and remit the dant to his former state. See Vrquhart v. Maephcrson, 3 App. Cas. 821. Release of on,' partner: Allison v. McDonald, 20 A. R. 695. (See under Guarantee.) Quwre, in the present state of the law is a release to or satis- faction from one of several joint tort-feasors a bar to an action against others? Grand Trunk B. W. Co. v. McMillan, 10 S. C. R. 543. A release by creditors to one of two partners of all actions and causes of action, suits, debts, etc., which they now have or ever had, or are entitled to in respect of any act, matter or thing, from the he in- ning of uie world, is :t release of individual as well as partnership liabilities: Hall v. Irons, 4 U. C. C. P. 351. A settlement of a pending action, agreed to by an illiterate plaintiff without communi- cation with her solicitor, and without fair disclosure of facts, cannot stand, and its validity may be tried in the pending action if pleaded in bar: Johnson v. Grand Trunk U. W. Co., 25 O. R. 64, 21 A. It. 408. In an action by a creditor against an executrix de son tort, she cannot set-off a debt due from the plaintiff to her testator: Cameron v. Cameron, 23 T\ ('. ('. P. 289. The question whether at the time of the bringing of the action the person against whom a release is set up lias done any act which >■ 'eluded him from impeaching it is one of fact depending on the circumstances: Barnes v. Richards (1902), IS Times I.. R. 32S, 330. In Hetoson v. Macdonald, '■'•- D. C. C. P. 407. the plaintiff was held to be concluded because the facts shewed a distinct election by him to retain the release and not disaffirm it. Cecils. "Doyle v. Diamond Flint Glass Co., 10 O. L. R. -"'72. Followed in Moore v. Vcott, 5 W. L. R. 8, 383 : 1«! Man. L. R. 492. The rule that the release of one or two joint or joint and several debtors is the release of the other applies equally whether the obliga- tion arises upon a judgment or upon any other security: E. 11'. A. (a debtor), In re, 70 L. .1. K. B. 810; (1901) 2 K. B. 642: S5 L. T. 31 : 40 W. R. 642: 8 Manson 250. 590 DEFENCES. REPUGNANCY OF STATUTE. City and South London R. W. Co. v. London County Council (1891), 2 Q. B. 513, followed. The St. Hyacinthe Case, 25 S. C. R. 168, distinguished. City of Victoria v. British Columbia Electric R. W. Co., 13 W. L. R. 336. RESCISSION. Before breach a simple contract may be rescinded and discharged by a mutual oral agreement. A deed cannot be revoked or discharged by parol or writing not under seal : West v. Blakeway, 2 M. & Gr. 729. An executory agreement in writing not under seal may, before breach, be discharged by a subsequent oral agreement. After breach it cannot be discharged except by release under seal or accord and satisfaction: Willoughby v. Backhouse, 2 B. & C. 824; or by a valid agreement, substituting a new cause of action in place of the old, for an invalid agreement will not discharge the former one : Noble v. Ward, L. R. 1 Ex. 117. A distinction is to be observed between simple contracts in writing under the Statute of Frauds and contracts at the common law. In the former case an oral contract will not be admitted to show a subsequent variation in the written contract : Goss v. Lord Nugent, 5 B. & A. 58. But it is otherwise if the contract is not subject to the control of a statute. Where such a contract has been reduced into writing it is competent to the parties at any time before the breach of it, by a new contract not in writing, either altogether to waive, dissolve or alter the former agreement, or to qualify the terms of it, and thus to make a new contract, to be proved partly by the written agreement, and partly by the subsequent oral terms engrafted upon it : Goss V. Lord Nugent, 5 B. & A. 65. A contract within the Statute of Frauds can, it seems, be wholly discharged orally: Midland R. Co. v. Ontario Rolling Mills, 10 A. R. 677. See Hayes v. Elmsley, 23 S. C. R. 623. An executed contract for the sale of an interest in land will not be rescinded for mere innocent misrepresentation. But where by error of both parties and without fraud or deceit there has been a complete failure of consideration, a Court of equity will rescind the contract and compel the vendor to return the purchase money: Cole v. Pope, 29 S. C. R. 291. There is no ground for a demand for the rescission of a contract in course of execution, except when the debtor is actually in default as regards the fulfilment of the obligations which arise from it. Con- I 38ION. 59] sequently, the probability "f hie nol being able i<» perform it within the time agreed upon, however Btrong thai may be, and his default in accomplishing what is required by the contract, according to the mode or in 1 1 1 * - order provided, are nol grounds sufficienl to give the creditor the right to exercise this remedy: Flood v. barouche, Q. R. 28 S. C. 271. Effect of ir i \ ■ 1 1 1 ^r time to make good does not prevent reliance on misrepresentation .-is a ground for determining contract: Tibbatta v. Boulter (1895), W. N. 152 (4). Option to purchase on notice: Dibbins v. Dibbina (1896), 2 Ch. A contract scaled and delivered by one party, which is subject to the approval of the other party, cannot be revoked by the former be- fore the latter has had a reasonable time within which to signify his assent. Nominal damages only allowed againsl the defaulting party tinder the circumstances set out in the report: Woteroua Engine Works Co. v. Pratt, 30 O. R. 538. Where there is a positive contract to do a thing not in itself un- lawful, the contractor must perform it or pay damages for non- performance, although in consequence of unforeseen causes the per- formance has become unexpectedly burdensome or even impossible. Held, that the defendants were liable for the damages thus sustained, and for the rent during the period of repair. Taylor v. Caldwell, 'Z B. & S. 626, f.dlowed: Grant v. Armour, 25 O. R. 7. .Mere silence as regards a materia] fact, which one party is not bound to disclose to the other, is not a ground for rescission or a defence to specific performance: Turner v. (Iran (1S95), 2 Ch. 205. Letters accepting an open offer and withdrawing the offer were posted on the same day. The letter of withdrawal was received before the letter of acceptance: Held, that the withdrawal was too late. An offer which is likely to be accepted by letter is accepted when the letter is posted, but the withdrawal of such an offer dates only from the time when the fact of the withdrawal is next to the other party: Henthom v. Fraser, C. A. (1892). 2 Ch. 27. Performance of a contract to employ a traveller for a fixed period is no excuse because the employer ceased to carry on business after destruction by fire: Turner v. Goldamith, C. A. (1891), 1 Q. B. 544. Notice to end contract. Scniblc. that when one party to a con- tract (in which time is not of the essence) desires to put an end to the contract in consequence of the laches of the other party thereto, the proper mode of doing so is to give notice that unless completed within a period to he tixed. the contract will be considered at an end: O'Kccfc v. Taylor, 2 Chy. 95. Where no time is specified between the parties for the carry- ut of a contract, the law implies that it should be carried out 592 DEFENCES. within a reasonable time, having regard to all the circumstances. If there be an undue delay on the part of either party, the other party has the right to notify him that unless the contract is carried out within a specified time, such time to be reasonable, the contract will be considered at an end, and where the work to be done requires a considerable period of time he may also fix a reasonable time for its commencement : Johnson v. Dunn, 11 B. C. R. 372, 2 W. L. R. 317. A judgment against the principal debtor is res judicata against his surety, provided that the judgment defines and determines the responsibility of the principal debtor in the matter covered by the security : Morgan v. Western Assurance Co., Q. R. 13 K. B. 49. The right of a purchaser to repudiate the contract on account of a defect in title which the vendor cannot remove is merely an equitable right arising out of want of mutuality and effecting the equitable remedy by way of specific performance, and is distinct from the legal right of rescission. The right of repudiation must be exercised as soon as the defect is ascertained ; and if, after ascertaining it, the purchaser continues to treat the contract as subsisting he does not retain the right to repudiate at any subsequent moment he may choose, and must give the vendor a reasonable time to cure the defect. Further, after a decree of specific performance a defend- ant purchaser cannot repudiate the title or the contract without the leave of the Court. If he discovers a defect of title which might, but for the decree, give rise to a right of repudiation he must move to be discharged from the contract, and he is not entitled to be dis- charged as a matter of course. The vendor may perfect his title at any time before certificate, while the purchaser is not confined to objections taken by him before or at the hearing, and in each case the Court will consider the circumstances and grant or refuse the relief as may appear to be equitable: Halkett v. Dudley (Earl), 76 L. J. Ch. 330; (1907). 1 Ch. 590; 96 L. T. 539. Where, in an agreement for conditional sale, it is provided that upon default the seller may take possession of and hold the goods until payment, or sell the same and apply the proceeds on the pur- chase price, and recover the balance, and the seller takes possessr a and retains the goods, the contract is not thereby rescinded, but he may recover the purchase price under the contract after crediting the value of the goods. Harris v. Dustin, 1 Terr. L. R. 404, and Massey v. Lowe, 1 W. L. R. 313, distinguished : Hopkins v. Dan- roth, 7 W. L. R. 303, 1 Sask. L. R. 225. The rule of law applicable to contracts is that neither of the parties can by his own act or default rlefeat the obligations which he has undertaken to fulfil, or escape those obligations by offering to the other party an indemnity which is not that which the other party OFF. contracted to accept: The Blairmore, 67 J.. •). P. 0. 96; (1898) A. C. 593; 7!) L. T. 217; 8 Asp. M. 0. 429. Tho question whether a breach < character a>> to justify 1 1 1 * - treatment of the contract as repudiated may, when it depends upon the construction of a written contract, be decided by the Judge withoul the jury: Qeorge D. Emery Co. v. Wells, ~~> L. J. P. C. 104; (1906) A. U. 515; 95 L. T. 589. Defendanl wrote plaintiff that he had fifty tons of hay for sale, to be shipped by schooner. This being impracticable, defendant said he would ship by rail, which plaintiff accepted: Held, not a rescission, but a modification of the existing contract. Judgment for plaintiff. Appeal dismissed: McQrath v. Black, 6 B. L. R. 501. Powers of rescission must l"' strictly followed and their exercise subjected to rigorous scrutiny in a Court of Equity just as in cases of notices under powers of sale in mortgages: Held, further, that, even if the notice served had been worded in strict accord with the power in the agreement, the latter should be treated as in the nature of a penalty against which the Courts will relieve: In re Dagenham {Thames) Dock Co., L. It. 8 Ch. 1022. and Corn volt v. Jlenson (1900), 2 Ch. 29S, followed. That the plaintiff's remedy would be to commence an action in the nature of specific performance to have the contract cancelled by decree of the Court, upon default after a time to be fixed by the Court : Hudson's Bay Co. v. Maedonald. 4 .Van. L. it. 327, and tysaghi v. Edwards, 2 Ch. I>. 506, followed. Canadian Fairbanks Co. v. Johnston. 18 Man. L. R. 589; 10 W. L. K. 571. RES JUDICATA, see Judgment, ante page 70. SET-OFF. Founded on 2 Geo. II., c. 22, s. 13; 8 Geo. II., c. 24. s. 45. A defendant in an action may set up by way of counterclaim against the claim of the plaintiff any right or claim, whether the same sound in damages or not. The distinction between a set-off and counterclaim is still ma- terial for sonic purposes, and especially with reference to costs. A set-off alleges a liquidated demand due from the plaintiff to the defendant, which balances the liquidated claim of the plaintiff, and shews that on the whole account between the plaintiff and the de- fendant nothing is due to the plaintiff. A set-off to an amount il to the plaintiff's claim is. therefore, a defence to the action. 594 DEFENCES. A counterclaim is in tne nature of a cross action by the defend- ant, which may be made, although in respect of or against a claim for unliquidated damages: Stooke v. Taylor, 5 Q. B. D. 576. Where the defendant succeeds on a simple set-off, or on a counter- claim founded on matters that would have been a defence prior to the Judicature Act, and to an amount not less than the plaintiff's claim, he has a complete defence to the action, and is therefore entitled to his costs. See Stooke v. Taylor, iibi sup. Where, however, the counterclaim is in the nature of a cross- action, and the plaintiff is successful on his claim, and the defendant also on his counterclaim, the plaintiff is entitled, even although the defendant recover the larger amount, to the general costs of the ac- tion. The defendant is entitled to the costs of the counterclaim; but there is no apportionment of such costs as, if the claim and counter- claim had been separate actions, would have been incurred in each of them : Ward V. Morse, 23 Chy. D. 377. Where the claim and counterclaim are both dismissed with costs, the plaintiff pays the general costs of the action, and the defendant the amount only by which the costs have been increased by the counterclaim: Sauer v. Btlton, 11 Chy. D. 416. See McGoivan v. Middleton, 1 ! Q. B. D. 464. Where the issues in the claim and counterclaim are the same, the plaintiff is not entitled to adduce fresh evidence to contradict the de- fendant's evidence : Green v. Sevin, 12 Ch. D. 5S9. See Monteith v. Walsh, 10 P. R. 163 ; Goring v. Cameron, 10 P. R. 496 ; Hare v. Caw- thrope, 11 P. R. 353. Followed in Malcolm v. Race, 16 P. R. 330; Chamberlain v. Chamberlain, 11 P. R. 501; Central Bank v. Osborne, 12 P. R. 160; General Electric v. Victoria Electric, 16 P. R. 529. Plaintiff by deed agreed to build a house for defendant for $1,150 by a day named, and that for each day that should elapse after that day until completion defendant might deduct $5 from the contract price : Held, that: the sum of $5 per day was liquidated damages, not a penalty, and that it might be deducted from the contract price with- out pleading it specially by way of set-off: Scott v. Dent, 38 U. C. R. 30. The rule that wrong-doers cannot have redress or contribution against each other is confined to cases where the person seeking re- dress must be presumed to have known that he was doing an illegal act: Wier v. Blois, 40 N. S. R. 266. TENDER. The following are the main requisites for a valid tender : The actual production of the money due is necessary, unless the creditor dispense with the production of it at the time, or does any- ii.m>i;i;. 595 thing which is equivalent to a dispensation: Thomas v. Evans, I'd East 101. There must be evidence of an unqualified offer. An offer of pay- ment clogged with a condition that it mus' be accepted its the balance due does not amount to a valid tender: Liana v. Judkinx, 4 Camp. 150. Whether a tender is conditional or not is a question for the jury, wnere the words or facts accompanying it are disputed: Eckstein v. Reynolds, 7 A. & E. SO. But if the goodness of it turns on the nn aning or legal effect of a letter or writing accompanying it, then the question is for the Judge: Boicen v. Owen, 11 Q .B. 130. The same rule would apply to unwritten expressions used by the party tendering, where the tenor of them is not disputed. The ten- der need not be made by the debtor himself; it is sufficient if made by his agent. A tender to a person authorized by the creditor to receive money for him is sufficient. Tender of a part of one entire debt is inoperative : Dixon v. Clark, 5 C. B. 365. If a man tenders more than he ought to pay, it is good : Wade's Case, 5 Rep. 114. But such a tender is only good where it is made in moneys num- bered so that the creditor may take what is due to him ; therefore, e.g., a tender of a Dominion note for fifty dollars, requiring change, is not good. By R. S. C, c. 31, " An Act respecting Dominion Notes," such Dominion notes are authorized. Section 4 provides : — " Such notes shall be a legal tender in every part of Canada except at the offices at which they are respectively made payable." By R. S. C, c. 30, " An Act respecting the Currency." gold coins may be struck for Canada of the standard of fineness prescribed by law for the gold coins of the United Kingdom, and bearing the same proportion in weight to that of the British sovereign as $5 bear to $.>-i.86 2-3. These coins shall pass current and be a legal tender in Canada for $5. Silver, copper or bronze coins are legal tender as follows : Silver coins to the amount of $10 ; copper or bronze coins to the amount of twenty-five cents in any one payment. The holder of the notes of any person to the amount of more than $10 shall not be bound to receive more than that amount in such silver coins in payment of such notes if presented for payment at one time, although air such notes is for a less sum. The defence of tender is only applicable to cases where the party pleading has been guilty of no breach of his contract. ;9U DEFENCES. The defence will be defeated by shewing a demand and refusal prior or subsequent to the tender: Bennett v. Parker, L. R. 2 C. L. 89, Ex. Although a conditional tender is not good, the tender under protest reserving the rigbt to the debtor to dispute the amount due is a good tender if it does not impose any conditions on the creditor : Held, that a tender to mortgagees in possession, reserving a right to tax their costs and review their account, was a good tender: Green- wood v. Hutcliffe, C. A. (1892), 1 Ch. 1. An agreement between the mortgagee and the purchaser of the mortgaged premises for an extension of time for payment of the mortgage in consideration of payment of interest at an increased rate, with a reservation of remedies against the mortgagor, does not operate as a release of the liability of the mortgagor upon his covenant. He is not a mere surety, and if his right of redemption is not affected or the value of the mortgaged property impaired, he cannot complain. Bristol and West of England Co. v. Taylor, 24 O. R. 266, distin- guished : Trust and Loan Company v. McKenzie, 23 A. R. 167. A tender of mortgage money with a statement that the party ten- dering did not consider the amount tendered due, and that the other would be compelled to repay the excess : Held, not invalidated by the statement : Peers v. Allen, 19 Chy. 98. The demand must be proved of the precise sum tendered : Rivers v. Griffiths, 5 B. & A. 630. See Demorest v. Midland, 10 P. R. 640 ; Lockridge V. Lacey, 30 U. f a deceased own evidence, in respect of any matter occurring before the death person, the f the deceased person, unless such evidence is corroborated by some evidence of the oppo- other material evidence. R. S. O. 1897, c. 73, s. 10. site party must be -. t • , corrobo- ■"»• * n an a °tion by or against a lunatic so found or an inmate rated. f a lunatic asylum, or a person who from unsoundenss of mind is In actions j nca p a ble of giving evidence, an opposite or interested party shall against not obtain a verdict, judgment, or decision on his own evidence, un- lunatics, i ess such evidence is corroborated by some other material evidence. Cit-C ©VI* denceof R- S. O. 1897, c. 73, s. 11 ; 03 V. c. 17, s. 13. opposite party to be corrobo- OATHS AND AFFIRMATIONS. rated. Deponent 14. Where an oath may lawfully be administered to any person (rith de as a w * tness or as a deponent in an action or on appointment to any clared to office or employment or on any occasion whatever, such person shall be binding be Doun( ] by t ]j e oat jj administered, if the same shall have been administered in such form and with such ceremonies as such person may declare to be binding. See Imp. Stat., 1 and 2 Vict. c. 105. persons *-**• — ^) ^ a P erson called as a witness or required or desiring may make to give evidence or to make an affidavit or deposition in an action ti mis or or on an occas i° n whereon or touching a matter respecting which an declara- oath is required or permitted, objects to take an oath or is objected stead of" t0 as i ncom petent to take an oath and if the presiding Judge or the oaths. person qualified to take affidavits or depositions is satisfied thai such APPENDIX. 605 person objects to be Bworn from conscientious scruples or on the ground of his religious belief or on the ground that the taking of an oath would have ao binding effecl on his conscience. Bucb pi rson may make an affirmation and declaration in lieu of taking an oath and such affirmation and declaration Bhall be of the same force and effect as if such person had taken an oath in the usual form. K. 8. O- 1897, c. 73, ss. 13, 14, amended. (2) Where the evidence is in the form of an affidavit or written Certificate deposition the person before whom the same is taken -hall cert if v t ^ at de- ponent en- that the deponent satisfied him that he was a person entitled to titled affirm. {New.) affirm. ATTENDANCE OF WITNESSES. A witness served in duo time with a subpoena issued out Witness of any court in Ontario, and paid his proper witness fees and 8u bpoena conduct money, who shall make default in obeying such subpoena liable t i without any lawful and reasonable impediment, shall in addition to ac any penalty he may incur as for a contempt of court, be liable to an action on the part of the person by whom, or on whose behal:' shall have been subpoenaed, for any damage which such person may sustain or be put to by reason of such default. 5 Bliz. c. 9, s. 6, R. S. O. 1897, c 324, s. 13. EXAMINATION OF WITNESSES. 17. A witness may be cross-examined as to previous statements Proof of made by him in writing, or reduced into writing, relative to the ci>ntradic- tmy wnt- matter in question, without the writing being shewn to him ; but if ten Bt it is intended to contradict him by the writing, his attention shall, ment8 - before such contradictory proof is given, be called to those parts of the writing which are to be used for the purpose of so contradicting him; and the Judge or other person presiding at any time during the trial or proceeding may require the production of the writing for his in- spection, and may thereupon make such use of it for the purposes of the trial or proceeding as he may think fit. R. S. O. 1897, c. 7.".. s. 17. 18. If a witness upon cross-examination as to a former state- Proof of ment made by him relative to the matter in question, and incon- contr , c ' . oral sistenl with his presenl testimony, dees imi distinctly admit that he state- did make such statemi nt, proof may be given that he did in E make it; but before such proof is given, the circumstances of the supposed statement, sufficient to designate the particular 606 APPENDIX. shall be mentioned to the witness, and he shall be asked whether or not he did make such statement. R. S. O. 1897, c. 73, s. 18. Proof of previous conviction of a wit- ness may- be given if he denie6 it, etc. I Vrtificate of convic- tion. 19. — (1) A witness may be asked whether he has been con- victed of any crime, and upon being so asked, if he either denies the fact or refuses to answer, the conviction may be proved ; and a cer- tificate containing the substance and effect only (omitting the for- mal part) of the charge and of the conviction, purporting to be signed by the officer having the custody of the records of the Court at which the offender was convicted, or by the deputy of the officer, shall, upon proof of the identity of the witness as such convict, be sufficient evidence of the conviction, without proof of the signature or of the official character of the person appearing to have signed the certificate. Fee for. (2) For such certificate a fee of $1 and no more may be de- manded or taken. R. S. O. 1S97, c. 73, s. 19. How far a party may discredit his own witness. 20. A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character but he may contradict him by other evidence, or if the witness in the opinion of the Judge or other person presiding proves adverse such party may by leave of the Judge or other person presiding prove that the witness made at some other time a statement inconsistent with his present testimony, but before such last mentioned proof is given the circumstances of the proposed statement sufficient to designate the particular occasion shall be mentioned to the witness and he shall be asked whether or not he did make such statement. .STATUTES AND PUBLIC DOCUMENTS. Statutes, Proclamations, Orders in Council, Letters Patent, etc. Evidence 21. Letters Patent under the Great Seal of the United Kingdom of Letters £ Q reat Britain and Ireland, or of any other of His Majesty's Patent. Dominions, may be proved by the production of an exemplification thereof, or of the enrolment thereof, under the Great Seal under which the same may have issued, and such exemplification shall have the like force and effect for all purposes as the letters patent thereby exemplified, as well against His Majesty as against nil other persons whomsoever. 3 & 4 Edw. G, c. 4, and 13 Eliz. c. G ; R. S. O. 1897, c. 324, s. 12. Copies of Canadian 22. Copies of statutes, official gazettes, ordinances, regulations, proclamations, journals, orders, appointments to office, notices thereof APPENDIX, and other public documents purporting t<> be printed by or under the and Iv authority of (lie Parliament of Cn-ai Britain and Ireland or of the £ m » la J [mperial Government or by or under tip- authority of the Govern- evidei up lit or of any legislative body of any Dominion, Commonwealth, State, Province, Colony, Territory, or Possession within the Kit dominions, shall be admitted in evidence to prove the contents there- of. R. S. O. l^'. 1 ". <■. 7.".. s. 21, amended. 23. Prima facie evidence of a proclamation, order, regulation or pr,^,,^. appointment to office made or issued. tiona. Or- ders in Council, (a) By the Governor-General or the Governor-General in etc., of Council, or other Chief Executive Oflicer or Administrator m 2£?rf of the Government of Canada, or Canada and of Provincial (6) r>y or under the authority of any Minister or Ilead of any Govern- Department of the Government of Canada or of a Provincial ment8 l w proved . or Territorial Government in Canada, or (c) By a Lieutenant-Governor or Lieutenant-Governor in Coun- cil or other Chief Executive Officer or Administrator of Ontario or of any other Province or Territory in Canada. may he given by the production of (a) A copy of the Canada Gazette or of the official Gazette for any Province or Territory purporting: to contain a notice of such proclamation, order, regulation or appointment, or (6) A copy of such proclamation, order, regulation or appoint- ment purporting to be printed by the Bang's Printer or by the Government Printer for the Province or Territory, or (c) A copy of or extract from such proclamation, order, regu- lation or appointment purporting to be certified to be a true copy by such Minister or Head of a Department or by the Clerh or assistant or acting Clerk of the Executive Council or by the Head of any Department of the Government of Canada or of a Provincial or Territorial Government or by His Deputy or acting Deputy. It. S. O. 1S9T. c. T.".. ss. 22, 23. 24. An order in writing purporting to be signed by the Secretary Orders of State of Canada, and to be written by command of the Governor- 1* 116 *^ General, shall be receive,] in evidence as the order of the Governor- of State\.i 608 APPENDIX. Provincial General : and an oi-der in writing purporting to be signed by the >ecrearj. x'rovixicial Secretary and to be written by command of the Lieu- tenant-Governor, shall be received in evidence as the order of the Lieutenant-Governor. R. S. O. 1897, c. 73, s. 24. Official Documents. Notices in 25. Copies of proclamations and of official and other documents, notices and advertisements printed in the Canada Gazette or in the Ontario Gazette, or in the official Gazette of any Province or Terri- tory in Canada shall be prima facie evidence of the originals, and of the contents thereof. R. S. O. 1897, c. 73, s. 25. See R. S. C. 1906, c. 145, s. 21. How pub- lic or offi- cial docu- ments proved . By-laws, etc., of corpora- tions. 26. Where the original record could be received in evidence, a copy of any official or public document in Ontario, purporting to be certified under the hand of the proper officer, or the person in whose custody such official or public document is placed, or of a document, by-law, rule, regulation or proceeding, or of any entry in any register or other book of any corporation, created by charter or statute in Ontario, purporting to be certified under the seal of the corporation, and the hand of the presiding officer or secretary thereof, shall be receivable in evidence without proof of the seal of the corporation, or of the signature or of the official character of the person or per- sons appearing to have signed the same, and without further proof thereof. R. S. O. 1897, c. 73, s. 26. Privilege 27. Where a document is in the official possession, custody or "ffi C * S< l P° wer °^ a member of the Executive Council, or of the head of a De- documents partment of the Public Service of Ontario, if the Deputy head or other officer of the Department has the document in his personal possession, and is called as a witness, he shall be entitled, acting serein by the direction and on behalf of such member of the Execu- tive Council or head of the Department, to object to produce the document on the ground that it is privileged; and such objection may be taken by him in the same manner, and shall have the same effect, as if such member of the Executive Council or head of the Depart- ment were personally present and made the objection. R. S. O. 1897, c. 73, s. 27. Entries in 28. A copy of an entry in any book of account kept in any mental department of the Government of Canada or of Ontario, shall be books to received as prima facie evidence of such entry, and of the matters, facie evi- transactions, and accounts therein recorded, if it is proved by the dence. oath or affidavit of an officer of such department that such book was, APPENDIX. ,;,)! ' at the time of the making of the entry, one of the ordinary books kept in such department, thai the entry was apparently, and as the deponent belives, made in the usual and ordinary course of business of such department, and thai such copy is a true copy thereof. B. s. ... L897, c. 7:;. s. 28. See B. S. C. L906, c. 1 15, s. 26. ill Where a book or other document is of so public a Copies of nature as to be admissible in evidence on its mere production frompu&lic books "r the proper custody, a copy thereof or extract therefrom shall be documents admissible in evidence if it is proved thai it is an ed copy oradmissible . . , in t-vi- extract, or that it purports to be signed and certified as a true copy d ,. nc ,. or extract by the officer to whose custody the original has been entrusted. (2) Such officer shall furnish the certified copy or extract to any Copies to person applying for the same at a reasonable time, upon his paying ^.^'j'jf 1 ^', therefor a sum not exceeding ten cents for every folio of one hundred quired, words. R. S. O. 1S97, c. 73, s. 29. [As to documents in Crown Lands Department see R. S. O. Chap. 28, s. .',!.] Signatures of Judges, etc. 30 — (1) All Courts. Judges, Justices, Masters, Clerks of Courts, Judicial Commissioners and other officers acting judicially, shall take judicial be taken notice 11!' the signature of any of the Judges of any Court in Canada, of signa- in Ontario and in every other Province and Territory in Canada, j U( jg 68j where such signature is appended or attached to any decree, order, etc. cate, affidavit, or judicial or official document. R. S. O. 1897, c. 73. b. 30, part. (2) The Members of the Board of Railway Commissioners of Canada and of the Ontario Railway and Municipal Board, the Min- ummissioner and the Referees appointed under The Municipal Drainage Act shall be deemed Judges for the purposes of this section. N( w. 31. No proof shall be required of the handwriting or official Pn position of any person certifying to the truth of any copy of 01 ^ ^^ extract from any proclamation, order, regulation or appoint re- quired. Section 31 is amended by section 2!) of chapter 17 of Ontario Statutes. 1911, by striking out all the words after the words ••appoint- ment" in the 4th line and substituting "or to any matter or thii to which he is by law authorized or required to certify." k.e. — "0 610 APPENDIX. Foreign judg- ments, etc , how proved. and any such copy or extract may be in print or iu writing, or partly in print and partly in writing. R. S. O. 1S97, c. 73, s. 30, part. Foreign Judgments. IV2. A judgment, decree or other judicial proceeding recovered, made, had or taken in the Supreme Court of Judicature or in any Court of Record in England or Ireland or in any of the Superior Courts of Law, Equity or Bankruptcy in Scotland, or in any Court of Record in Canada or iu any of the Provinces or Territories in Canada, or in any British Colony or Possession, or in any Court of Record of the United States, or of any State of the United States of America, may be proved by an exemplification of the same under the seal of the Court without any proof of the authenticity of such seal or other proof whatever, in the same manner as a judgment, decree, or other judicial proceeding of the High Court in Ontario may be proved by an exemplification thereof. R. S. O. 1S97, c. 73, s. 31. Notarial Documents. C-'piesof 33 ^ CO py f a notarial act or instrument in writing made in acta Sf Quebec, before a Notary and filed, enrolled or enregistered by such Quebec ad- notary, certified by a Notary or Prothonotary to be a true copy of missi ) e. ^ e original thereby certified to be in his possession as such Notary or Prothonotary, shall be receivable in evidence in the place and stead of the original, and shall have the same force and effect as the origi- nal would have if produced and proved. R. S. O. 1S97, c. 73, s. 32. How im- peached . Produc- tion of protest to be prima facie evi- dence that pro- test was made. Certain certificates of notaries to be prima facie evi- dence. 34. The proof by such certified copy may be rebutted or set aside by proof that there is no such original, or that the copy is not a true copy of the original in some material particular, or that the original is not an instrument of such nature as may by the law of Quebec, be taken before a Notary, or be filed, enrolled or enregis- tered by a Notary. K. S. Q. 1S97, c. 73, s. 33. Protests of Bills and Notes. 35. A protest of a bill of exchange or promissory note purporting to be under the hand of a Notary Public wherever made, shall be received as prima fade evidence of the allegations and facts therein stated. R. S. O. 1897, c. 73, s. 34. 36. Any note, memorandum or certificate purporting to be made by a Notary Public in Canada, in his own handwriting or to be signed by him at the foot of or embodied in any protest, or in a regular register of official acts purporting to be kept by him, shall be prima facie evidence of the fact of notice of non-acceptance or non-payment of a bill of exchange or promissory note having been sent or deliv- APPENDIX. 61] ered, at the time and in the manner stated in such note, certificate or memorandum. II. S. < >. 1s'.»7. <•. 7::. s. 35. Sheriffs Conveyance <>n Division Court Judgment. '■',',. In proving a title under a Sheriffs conveyance based upon p^ an execution issued from a Division Court it shall be sufficient to '"I' « im- prove the judgment recovered in the Division Court without proof of 8 j on c,, uit any prior proceedings. K. S. O. L897, c. 73, s. 36. (rations Affidavits, etc., made out of Ontario. 38. Oaths, affidavits, affirmations, or declarations administered. Affidavits sworn, affirmed or made out of Ontario: *" be used (a) In England or Ireland before a Commissioner autborized to ni;iv ),,' administer oaths in the Supreme Court of Judicature of made be- T7i i j t i j fore cer- England or Ireland; tainfunc- (b) In England or Ireland before a Judge of the Supremo Court tioharies of Judicature of England or Ireland; counl (c) In Scotland before a Judge of the Court of Session or tin- Justiciary Court of Scotland; (d) Before a Judge of any of the County Courts of Great Bri- tain or Ireland, within his County; (c) In Great Britain or Ireland, or in any Colony of His Majesty, or in any foreign country, before the Mayor or Chief Magistrate of any City, Borough or Town corporate, certified under the common seal of such City, Borough, or Town corporate ; (/) In any Colony belonging to the Crown of Great Britain, or any dependency thereof, or in any foreign country before a Judge of any Court of Record or of supreme jurisdiction ; (g) In the British Possessions in India, before any Magistrate or Collector certified to have been such under the hand of the Governor of such Possession ; (h) In Quebec, before a Judge or Prothonotary of the Superior Court or Clerk of the Circuit Court. (i) In any foreign place, before any Consul, Vice-Consul, or Consular Agent of His Majesty exercising his functions ; (/) Before a Notary Public and certified under his hand and official seal ; (k) Or before a Commissioner authorized by the laws of On- tario to take such affidavits; shall be as valid and effectual and shall be of like force and effect to all intents and purposes as if such oath, affidavit, affirmation or de- claration had been administered, sworn, affirmed or made in Ontario 612 APPENDIX. before a Commissioner for taking affidavits therein, or other com- P tent authority of the like nature. R. S. O. 1S97 c. 73, s. 37. Steal and 39. Any document purporting to have affixed, impressed or sub- ™j. scribed thereon or thereto the signature of such Judge or Commis- be proved, sioner, or the signature and official seal of such Notary Public, or Prothonotary, or the seal of the Corporation and the signature of such Mayor or Chief Magistrate or Governor as aforesaid, of the seal and signature of such Consul. Vice-Consul or Consular agent in tes- timony of such oath, affidavit, affirmation, or declaration having been administered, sworn, affirmed or made by or before him, or for any other purpose authorized by this Act, shall be admitted in evidence without proof of such signature, or seal and signature, being the signature or the seal and signature of the person whose signature or seal and signature the same purport to be, or of the official character of such person. R. S. O. 1897, c. 73, s. Ms. Formal Defects in Affidavits. Informal 40. No informality in the heading, or other formal requisites to headings, a affidavit, declaration or affirmation, made or taken before a etc., nut to invalidate. Commissioner or other person authorized to take affidavits under The Commissioners for taking Affidavits Act, or under this Act, shall be any objection to i before whom it is 1897, c. 73, s. 39. 9 Edw. any objection to its reception in evidence, if the Court or Judge v II c. 44 before whom it is tendered thinks proper to receive it. R. S. O. Depositions. r, . , 41. Where an examination or deposition of a party or witness Copies of f i j deposi- has been taken before a Judge or other officer or person appointed tions certi- j- take the same, copies of the examination or deposition certified person under the hand of the Judge, officer or other person taking the same, taking the s hall, without proof of the signature, be received and read in evi- Bame ad- missible in dence, saving all just exceptions. R. S. O. 1S97, c. 73, s. 40. • • . idence. 1,1 actions Proof of Wills. concerning ' ' real estate, probate, 42. In order to establish a devise or other testamentary disposi- etc to b© prirna ' t,on °^ or affecting r»al estate, probate of the will or letters of ad- faeie evi- ministration with the will annexed containing such devise or disposi- ' } c tion or a copy thereof under the seal of the Surrogate Court granting after cer- the same, or under the seal of the High Court, where the probate or tfcT unless ' et * ers °^ administration were granted by the former Court of Pro- its validity bate for Upper Canada, shall be prima facie evidence of the will, and issue U m of its va,idit y anfl contents. R. S. O. 1897, c. 73, s. 41. Amended. APPENDIX. 619 43. Where a person dies in any of His Majesty's ins oul Proof in of Ontario baring made a will sufficienl to pass real estate in On-^y tario, purporting to devise, charge or affect real estate in Ontario, estate filed ill- party desiring to establish any such disposition, after giving one? no ?P rta in other montli*s notice to the opposite party to the proceeding of hi- intention British so io do, may produce and file the probate of the will or Letters of ' OS. administration with the will annexed or ;i certified copy thereof undei the seal of the Court which granted the same with a certificate of the Judge, Registrar, or Clerk of such Court that the original will is filed and remains in the Court and purports to have been executed before two witnesses, and such probate or letters of administration or cer- tified copy with such certificate shall, unless the Court otherwis orders, !"• prima facie evidence of the will and of its validity and contents. R. S. O. 1S97, c. 73, s. 43, Amended. ■It. The production of the certificate, in the last preceding sec- Certificate tion mentioned, shall be sufficient prima facie evidence of the facts to be therein stated, and of the authority of the Judge, Registrar or Clerk, fi^^yi. without proof of his appointment, authority or signature. R. S. O. dence. 1S97, c. 73, s. 44. Copies of llvyistered Instruments. 45. The word " instrument " in the next succeeding two sections Meaning shall have the meaning assigned to that word in section 2 of The *"™- Registry Ad. R, S. O. 1MJ7, c. 73. s. 45. Btrument." tie v.Stat., c. 136. 46. A copy of an instrument or memorial certified under the Registered hand and seal of the oflice of the Registrar. Master of Titles, or Local uwtru- Master of Titles, in whose office the same is deposited, filed, kept or .,',',,',,, registered to be a true copy shall be prima facie evidence of the origi-/«<"f<° evi- nal, except in the cases provided for in section 47. R. S. O. 1897. c. 73, s. 46. [As to effect of production of an original duplicate the rcyistra- tion a! which is certified, see A'. 8. O., Chap. 136. sec. 6.3.] 47. Where it would be necessary to produce and prove an in- Certified Btrument or memorial which has been so deposited, filed, kept or c "'"'" w ' registered registered in order to establish such instrument or memorial and theinstru- contents thereof, the party intending to prove the same mav sive !'"' nts V ia - V v • be used in- notice to the opposite party ten days at least before the trial, or other stoad of proceeding in which the proof is intended to be adduced, that he in- l,, > r,na!s after n tends at the trial or other proceeding to give in evidence, as proof of tice. the instrument or memorial, a copy thereol certified by the Registrar, 6 1 4 APPENDIX. Exception Master of Titles, or Local Master of Titles, under his hand and seal of office, and in every such case the copy so certified shall be suffi- Costs in c ient evidence of the instrument or memorial and of its validity and contents, unless the party receiving the notice within four days after such receipt, gives notice that he disputes its validity, in which case the costs of producing and proving it may be ordered to be paid by any or either of the parties as may be demed just. R. S. O. 1S97, c. 73, s. 47. Copies of 48. — (1) Where a public officer produces upon a subpoena an documents ori £ mal document, it shall not be deposited in Court, unless other- to be filed wise ordered, but if the document or a copy is neded for subsequent originals. reference or use > a C0 Py thereof or of so much thereof as may be deemed necessary, certified under the hand of the officer producing the document or otherwise proved, shall be filed as an exhibit in the place of the original ; and the officer shall be entitled to receive in addition to his ordinary fees, the fees for any certified copy, to be paid to him before it is delivered or filed. R. S. O. 1897, c. 73, s. 48. Original tu (2) A. J ere an order is made that the original be retained, the be retain- order shall be delivered to the public officer, and the exhibit shall be order of retained in Court and filed. R. S. O. 1897, c. 73, s. 49. Judge. Copies of other ivritten Instruments. Copies of 49. — (1) A party intending to prove the original of a telegram, documents letter > shipping bill, bill of lading, delivery order, receipt, account or may be ad- other written instrument used in business or other transactions, may S'idenc? give notice to the °PP° sit e Party ten days at least before the trial or on certain other proceeding in which the proof is intended to be adduced that conditions ne intends to give in evidence as proof of the contents, a writing purporting to be a copy of the document and in the notice shall name some convenient time and place for the inspection thereof. Inspection (2) Such copy may then be inspected by the opposite party; and shall without further proof be sufficient evidence of the contents of the original document, and be accepted and taken in lieu of the original, unless the party receiving the notice within four days after the time mentioned for such inspection gives notice that he intends Costs to dis P utx ' the correctness or genuineness of the copy at the trial or proceeding, and to require proof of the original ; and the costs attend- ing any production or proof of the original document shall be in the discretion of the Court. R. S. O. 1897, c. 73, s. 51. APPENDIX. 6 1 5 MISCIXI . \m hi s PROVISIONS. 50. — (1) Where it is made to appear to the Bigh Court or a W; Judge thereof, or to a Judge of a County or District Court, that any ( j,! r , Court or tribunal of competent jurisdiction in a foreign country baabeexam- , , • ■ ■ , i i . • • ""''' '" re- duly authorized, by commission, order or other process, the obtaining i lt: j,, n t() of the testimony in or in relation to any action, suit or proceeding any matter pending in or before such foreign Court or tribunal, of a witness out i^fl',,.,".^ of the jurisdiction thereof and within the jurisdiction of the Court foreign or Judge so applied to, such Court or Judge may order the examina- tion of such witness before the person appointed, and in the manner and form directed by the commission, order or other process; and may by the same or by a subsequent order, command the attendance of any person named therein for the purpose of being examined, or the production of any writing or other document or thing mentioned in the order; and may give all such directions as to the time and place of the examination, and all other matters connected therewith, as may seem proper; and the order may be enforced, and any disobedi- ence thereto punished, in like manner as in case of an order made by the same Court or Judge in an action pending in such Court or before such Judge. (2) A person whose attendance is so ordered shall be entitled Payment to the like conduct money and payment for expenses and loss of time of ex- pensesoi as upon attendance at a trial in the High Court. witness. (3) A person examined under such commission, order or other Right of process, shall have the like right to object to answer questions tend- ^^* r ° ing to criminate himself, and to refuse to answer any questions questions which, in an action pending in the Court by which or by a Judge a , whereof or before the Judge by whom the order for examination was made, the witness would be entitled to object or to refuse to answer; and no person shall be compelled to produce at the examination, any writing, document or thing which he would not be compellable to produce at the trial of such an action. (4) Where the commission, order or other process or the in- Adminis- struments of the Court accompanying the same direct that the person trationof < >ath. to be examined shall be sworn or shall affirm the person so appointed shall have authority to administer the oath to him or take his allirma- \, r ,^ lm ,, tion. R. S. O. 1S97, c. 73, s. 52. wit, ne< d not be called 51. It shall not be necessary to prove by the attesting witness, wl an instrument to the validity of which attestation is not requisite. ntiiredVy It. S. 0. l v !i7. c. 7:;. s. 54. law.' 616 APPENDIX. Compari- T>ii. Comparison of a disputed writing with any writing proved tT'ted t0 ' ne sat ' s ^ act * on °f llle Court to be genuine, shall be permitted to writing be made by a witness; and such writings and the evidence of wit- with genu- Qegses respecting the same, may be submitted to the Court or jury, as evidence of the genuineness or otherwise of the writing in dispute. It. S. O. 1S97, c. 73, s. 55. When in- 53. Where a document is received in evidence the Court admit- offTreoMn' t ' ng tne same ma y direct that it be impounded and kept in such evidence custody for such period and subject to such conditions as may seem rounded 11 " P ro P er or imt il the further order of the Court or of the High Court or a Judge thereof or of a County or District Court (as the case may be). Evidence 54. it s hall not be necessary in an action to produce any evidence dispensed with under which by section 2 of The Vendors and Purchasers Act is dispensed Rev.. Stat., with as between vendor and purchaser, and the evidence declared to c. 134 be sufficient as between vendor and purchaser shall be prima facie sufficient for the purposes of the action. R. S. O. 1S97, c. 134, s. 3. Repeal. 55. Chapter 73 of the Revised Statutes of Ontario, 1897 (ex- cept section 53) and all amendments to the said Act are repealed. H LIBEL AND SLANDER ACT. IS MAJESTY, by and with the advice and consent of the Legisla- tive Assembly of the Province of Ontario, enacts as follows : — Short title 1. This Act may be cited as " The Libel and Slander Act." Interpre- 2. In this Act " newspaper " shall mean a paper containing public tation. ■ . ,,. , news, intelligence, or occurrences, or remarks or observations thereon, printed for sale and published periodically, or in parts or numbers, ,,__ at intervals not exceeding thirty-one days between the publication of News- paper." any two of such papers, parts or numbers, and shall include a paper printed in order to be made public weekly or oftener, or at intervals not exceeding thirty-one days, and containing only, or principally, advertisements. R. S. O. 1897, c. 68, s. 1 ; G Edw. VII. c. 22, s. 1. LIBEL AND SLA N DEB. Aver- 3. In an action for libel or slander, the plaintiff may aver that meptsin ^ ne wort j s or matter complained of were used in a defamatory sense, actions for libel or specifying the defamatory sense without any prefatory averment to slander. shew how the words or matter were used in that sense, and the aver- APPENDIX. 617 men! shall be put in issue by the denial of the alleged libel or Blander; and where the words or matter eel forth, with or without the all meaning, shew a cause of action, the statement of claim shall be sufficient K. S. (). 1807, c. 08, s. 3. 4. Iu an action for libel or Blander where the defendant has li.-fendant pleaded a denial of the alle-el libel or slander only, or has Buffered F 1 *? prove in mitiga- judgment by default, or judgment has been given against him on tion that motion for judgment on the pleadings, he may give in evidence, in initi- be offered a written gation of damages, thai he made or ottered a written or printed or printed apology to the plaintiff fur such libel or slander before the commence- apology. mont of the action ; or, if the action was commenced before there was an opportunity of making or offering such apology, that he did so as soon afterwards as lie had an opportunity. R. S. O. 1S97, c. 68. -. 1. 5. On the trial of an action for libel the jury may give a general Jury not verdict upon the matter in issue in the action, and shall not be r g Cte( j ^ required or directed to find for the plaintiff, merely on proof of publi- return a cation by the defendant of the alleged libel, and of the sense ascribed V ^ t lct (i " f to it in the action ; but the Court shall, according to its discretion, the mere give its opinion and directions to the jury on the matter in issue as R r y ,• in other cases; and the jury may on such issue find a special verdict, cation and if they think fit so to do, and the proceedings after verdict, whether " f tne sense as- general or special, shall be the same as in other cases. R. S. O. 1897, cribed. c. 68, s. 2. 6. — (1) The Court or a Judge upon an application by two or more Consolida- defendants, in any two or more actions for the same or substantially * 10n °* < "*" the same libel or for a libel or libels contained in articles the same tions for or substantially the same published in different newspapers, brought saaae libel, by one and the same person, may make an order for the consolidation of smh actions so that they shall be tried together; and after such order has been made, and before the trial of such actions, the defend- ants in any new actions instituted in inspect to any such libel or libels shall also be entitled to be joined in a common action upon a joint application being made by such new defendants and the defend- ants in the actions already consolidated. (2) In a consolidated action under ibis section the jury shall How dam- assess the whole amount of the damages, if any, in one sum. but a •'-' f , 8688601 and separate verdict shall be taken for or against each defendant in the costs ap- same way as if the actions consolidated had been tried separately ; P ** 1006 " in such and if the jury find a verdict against the defendant or defendants in > 618 APPENDIX. more than one of the actions so consolidated they shall apportion the amount of the damages between and against such last mentioned defendants ; and the Judge at the trial, in the event of the plaintiff being awarded the cost of the action, shall thereupon make such order as he snail deem just for the apportionment of the costs between and against such defendants. It. S. O. 1S97, c. 68, s. 14. (3) For the purposes of this section "article" shall include any- thing appearing in a newspaper as an editorial or as correspondence or otherwise than as an advertisement. NEWSPAPER LIBEL. Defendant 7. j n an action for libel contained in a newspaper, the defendant that the' may plead in mitigation of damages that the libel was inserted therein libel was without actual malice and without gross negligence, and that before without tne commencement of the action, or at the earliest opportunity after- malice or wards, he inserted in such newspaper a full apology for the libel ; beence^" or ^ tne newspaper in which the libel appeared is one ordinarily and that published at intervals exceeding one week, that he offered to publish lishfd t *^ e a P°l°8y in any newspaper to be selected by the plaintiff. R. S. O. offered to 1897, c. 68, s. 6 (1). publish an apology. Action not 8. — (1) No action for libel contained in a newspaper shall lie to lie till unless the plaintiff has within six weeks after the publication thereof notice given. has come to his notice or knowledge, given to the defendant notice in writing, specifying the statement complained of, which shall be served in the same manner as a statement of claim or by delivering the notice to a grown up person at the place of business of the defendant. (2) The plaintiff shall recover only actual damages if it appears on the trial (a) That the alleged libel was published in good faith, (b) That there was reasonable ground to believe that the publication thereof was for the public benefit, (c) That it did not involve a criminal charge, (d) That the publication took place in mistake or misappre- hension of the facts, and, (e) That a full and fair retractation of any statement therein alleged to be erroneous was published either in the next regular issue of the newspaper, or in any regular issue thereof published within three days after the receipt of such notice, and was so published in as conspicuous a place and type as was the alleged libel. R. S. O. 1897, e. 68, s. 6 (2). APPENDIX. 619 (3) The provisions of this section shall not apply 10 the case of Section a libel against any candidate fur public office in Ontario, unless th e nW to cer- retractation of the charge is made editorially in a conspicuous man- tain < ii< r. at least five days before the election. B. S. O. 1807, c. 68, s. G (3). '.». A defendant may pay into Court with his defence, a sum of And may money by way of amends for the injury sustained by the publication of jjfto™ourt any libel to which the two next preceding sections apply, and, except as amends so far as regards the additional facts hereinbefore required to be pleaded by a defendant, such payment shall have the same effect as payment into Court in other cases. R. S. O. 1897, c. 6S, s. 7. 10. — (1) A fair and accurate report published in a newspaper Re ports of of any proceedings in the Senate or House of Commons of Canada, P roCt '"'' ings, pub- in any Legislative Assembly of any of the Provinces of Canada, or in lj c meet- any Committee of any of such bodies or of a Public Meeting, or m 8 s > etc - (except where neither the public nor any newspaper reporter is admitted) of any meeting of a Municipal Council, School Board, Board of Education. Provincial Board of Health, Medical Health Board, or of any other board or local authority formed or constituted under any of the provisions of any Public Act of any Legislative Assembly of any of the Provinces of Canada or of the Parliament of Canada, or of any Committee appointed by any of the above-men- tioned bodies, and the publication of the whole, or a portion or a fair synopsis, of any report, bulletin, notice or other document, issued for the information of the public from any <;<>\ernment Office or Depart- ment, or by any Provincial Board of Health, Medical Health Board, or .Medical Health Officer, or the publication, at the request of any Government or Municipal Official, Commissioner of Police, or Chief Constable, of any notice or report issued by him for the information of the public, shall be privileged, unless it shall be proved that such publication was made maliciously. (2) Nothing in this section shall authorize the publication of any Blasphem- hlasphemous, seditious or indecent matter. indecent matter. (3) The protect inn intended to be afforded by this section shall When de- not be available as a defence in any proceeding if the plaintiff shows ' en nt that the defendant bas refused to insert in the newspaper making publish such publication a reasonable letter or statement of explanation or explana- tion. contradiction by or on behalf of the plaintiff. (4) Nothing in this section shall limit or abridge any privilege Proviso now by law existing, or protect the publication of anv matter not of s:U ' n ? J " ■ matters of public concern or the publication of which is not for the public public benefit. 6 Edw. VII. c. 22. s. 2. concern. 620 APPENDIX. Meaning (5) p or the purpose of this section " public meeting " shall of public , . meeting." mean a meeting bona fide and lawfully held for a lawful purpose and for the furtherance of discussion of any matter or public concern whether the admission thereto be general or restricted. (See 51-52 Vict. c. 64, s. 4, Imp., part.) Report of proceed- ings in Court privileged. 11- — (1) A fair and accurate report without comment in a news- paper or proceedings publicly heard before a Court of Justice if pub- lished contemporaneously with such proceedings shall be absolutely privileged, unless the defendant has refused or neglected to insert in the newspaper in which the report complained of appeared a reason- able letter or statement of explanation or contradiction by or on be- half of the plaintiff. R. S. O. 1897, c. 68, s. 9. tion of im- ^~ > ^ otuin S m this section shall authorize the publication of any proper blasphemous, seditious or indecent matter. (See 51-52 Vict. c. 64, matter not „ a t™~ * \ authorized S " 4 ' Imp -' part ^ Security for costs . 12. — (1) In an action for libel contained in a newspaper, the defendant may, at any time after the delivery of the statement of claim, or the expiry of the time within which it should have been delivered, apply to the Court or Judge for security for costs, upon notice and an affidavit by the defendant or his agent, shewing the nature of the action and of the defence, that the plaintiff is not pos- sessed of property sufficient to answer the costs of the action in case a judgment is given in favour of the defendant, that the defendant has a good defence upon the merits, and that the statements complained of were published in good faith, or that the grounds of action are trivial or frivolous ; and the Court or Judge may make an order that the plaintiff shall give security for costs, which shall be given in accord- ance with the practice in cases where a plaintiff resides out of Ontario, and the order shall be a stay of proceedings until the security is given. Where libel in- volves a criminal charge. (2) Where the alleged libel involves a criminal charge the de- fendant shall not be entitled to security for costs under this Act, unless he satisfies the Court or Judge that the action is trivial or frivolous, or that the circumstances which under section 8 entitle the defendant at the trial to have the damages restricted to actual damages appear to exist, except the circumstance that the article complained of in- volves a criminal charge. (3) For the purposes of this section the plaintiff or the defend- Exaruina- plaintiff. ant or their agents may be examined upon oath at any time after the delivery of the statement of claim. R. S. O. 1897, c. 68, s. 10. APPENDIX. 621 (4) An order made under thia Bection by a Judge of the High When Court shall be final and shall not be subject to appeal, but where , ' 1 '' ',i' w .i ',' ,'. - order is made l>.\ a Local Judge an appeal therefrom shall lie to a apecting Judge of the High Court sitting in Chambers, whose order shall be {j^i * final and shall not be subject to appeal. It. S. O. 18!)7, c. 68, s. 1". 1.".. An action for libel contained in a newspaper shall be tried Place of in the county where the chief office of Bucb newspaper is. or in the ■ county whenin the plaintiff resides at the time the action is brought; hut upon the application of either party the Courl or a Judge may direct the action to be tried or the damages to be assessed in any other county if it appears to be in the interests of justice, or that it will promote a fair trial, and may impose such terms as to the pay- ment of witness lees and otherwise as may si em proper. It. S. O. 1897, e. 68, s . 11. 14. An action for libel contained in a newspaper shall be com- Tm,e menced within three months after the publication thereof has come w | t . nm which ac- to the notice or knowledge of the person defamed; but where an ac-tionmust tion is brought and is maintainable for a libel published within that be brought period, the same may include a claim for any other libel published against the plaintiff by the defendant in the same newspaper within a period of one year before the commencement of the action. R. S. O. is'.tT, c. 68, s. 13. 15. — (1) No defendant shall be entitled to the benefit of sections Publica- 8 and 1 1 of this Acl unless the name of the proprietor and publisher tlon of ii«i in© oi and address of publication is stated either at the head of the editorials publisher or on the front page of the newspaper. a . ,ld ad " dress. (2) The production of a printed copy of a newspaper shall be C°py oi lieu si ia i i»-r prima facie evidence of the publication of the said printed copy, and to De of the truth of the statements mentioned in subsection 1. prima facie evi- dence. 16. Service of any notice under this Act and of the writ of sum- Sen mons may he made upon the proprietor or publisher of the newspaper not ' by 8i rving the same upon any grown up person at such address. 17. In an action for libel contained in a newspaper, the defend- Evidence ant may prove in mitigation of damages that the plaintiff has already J'',^",',',- 1 "' brought actions for, or has recovered damages, or has received or damages, agreed to receive compensation in respeel of a libel or libels to the same purport or effect as that for which such action is brought. K. S. O. 1897, e. 68, s. it;. 622 APPENDIX. Sec. 8, subs. 1 and s. 14 only applicable to news- papers published in Ontario. Proof of special damage not re- quired in certain IS. Subsection 1 of section S and section 14 shall only apply to newspapers printed and published in Ontario. SLANDER OF WOMEN. 19. — (1) In an action for slander for defamatory words spoken of a woman imputing unchastity or adultery, it shall not be necessary to allege in the plaintiff's statement of claim or to prove that special damage resulted to the plaintiff from the utterance of such words, and the plaintiff may recover nominal damages without averment or proof of special damage, but shall not be entitled to recover more than nominal damages unless special damage is proved. Security for costs . (2) The defendant may, at any time after the delivery of the statement of claim, apply to the Court or a Judge for security for costs, upon notice and an affidavit shewing the nature of the action and that the plaintiff is not possessed of property sufficient to answer the costs of the action if a verdict or judgment is given in favour of the defendant, and that the defendant has a good defence on the merits, or that the grounds of action or trivial or frivolous ; and the Court or Judge may make an order that the plaintiff shall give secur- ity for the costs, which shall be given in accordance with the practice in cases where a plaintiff resides out of Ontario, and the order shall be a stay of proceedings until the security is given. Examina- tion of parties. (3) For the purposes of subsection 2 the plaintiff or the defend- ant may be examined upon oath at any time after the delivery of the statement of claim. R. S. O. 1S97. c. 68, s. 5. Com- 20. This Act shall come into force on the 1st day of September, mence- 1on „ ment of J - yuy ' Act. Repeal. 21. Chapter GS of the Revised Statutes of Ontario, 1S97, and all amendments thereto are repealed. INDEX. PAGE. Abandonment of easement, how shown 367, 3G8 of ship 230, 232 Absence of material witness, ground for postponement of trial. . . 143 See also, postponement of trial 142, 14o of cross-examination, effect of ,: >' course to pursue HI material required in affidavit 143 Absent witness, how previous evidence may be given 138 search for 137, 13S Abuse of civil process, action for 430 A •celeration clause in lease 490 Acceptance of bill of exchange, how far evidence of account stated 295 how proved 225 drawn by company's agent, effect of 50G of goods 536 of proposal, requisites for 20G Acceptor and drawer — ,J and payee — ° Accident, evidence omitted through, how supplied 170 causing death, questions to jury 182 Accidental deterioration falls on vendee 20S fire liability restricted 504 Accommodation indorsements --- Accord and satisfaction, effect of as defence 505 Account, action for 4 « J rendered, how far binding 46 stated, action on -04 compulsory admission, evidence of 42 Accretions of soil, ownership of 367 Acknowledgments under Statute of Limitations 557 Acquittal, proof of, in malicious prosecution 442 Action for work and labour, refusal to produce agreement, effect of 137 Actual and continued change of possession, question of fact - ,s ' Adequacy of consideration, when necessary 410 Addenda xi ^ Addresses to jury, order for *■** Adjustment of loss, not a condition precedent 230 Administration, how proved °7 Administrator, liability of estate of 28 624 INDEX. PAGE. Admiralty Courts, judgment of, when conclusive 72 remedies, in rem 96 jurisdiction, great lakes, criminal offences 375 Admission, rule as to pleading 503 of a party, primary evidence 15, 16 of a debt, evidence of 16 of service, effect of 69 when presumed from silence 41 rules as to, requisites for 41 how far conclush e 41 made under compulsion 42 at one trial held good for subsequent trial 41 Advancement of child, presumption as to 28 Adverse charge, objections on grounu of 172 occupation 557 Advertising poster, libel by 419 Affidavits, how proved 51 of bona fides, how far void for want of compliance with statement 54 made out of Ontario, requisites for admission 52, 53 formal defects in, do not invalidate 53 Affirmation, evidence may be given under, instead of oath 149 Affreightment, contract of, action on 241 After-acquired goods 5S4 Agent, representations by agent, effect of (See under agency). 458, 507 acceptance by, authority must be proved 225 admissions of, how far binding 43 requisites to prove 44 as trustee 532, 599 entrusted with goods, right of to transfer property 457 Act respecting dealings of 45S execution of document by, how proved 506 investing money, liability of 312, 313, 510 liability of for nuisance 359 may give receipts 506 representation by person assuming to act as 257 when chargeable with interest 197 sale of goods to 276 sale of lands 214, 215 warranty by 255 Agency, action against employer for damages 509 agent of two principals, power of 507 business, solicitor liable for , 263 construction of " agent " in Factors Act 462, 508 agent's clerk, powers of 506 corporation, liability of, for work done for 61, 514 ism r >'-' : ' PAGE. Agency, defence of 06 written recognition of oral contract 24, 507 fraud of agent, how far binding 508 promoters of company, liability of 513 stock-brokers, powers of 515 duties of architect 285, 510, 53 1 purchase by agent for disclosed principal ;,n ^ mixture by agent of principal's goods 462, 512 evidence of, when receivable, though not in writing 26 fraudulent representation of 395 shipping agent, powers of 246, 514 Agister, liability of 313 " Agony of collision " 319 Air, obstruction of 363 Aliens, Act as to employment of :, 1~ Allegations in pleadings, rule as to 503 Allowance to witness, scale of 131 Alteration of sidewalk, duty of municipality 313 on face of deed, presumption in case of 27 of verdict by court 137 in will, presumption as to 104 in agreement as between creditor and surety.197, 250, 251, 596 defence of 517 Alternative claim as between defendant companies 61 Ambiguity, effect of on covenant 480 rule as to explaining 32, 518 Amendment of Act, effect of 99 principles on which to bo allowed 7, 504 when application for should be made 8 Ancient lights, obstruction of 363 writings, how proved 56 Animals, negligent keeping of 323 Annuity, no interest on arrears of 198 Answers to inquiries as to absent witness not hearsay 138 Antecedent debt does not authorize pledge 457 Ante-nuptial contract signed by notaries 533 Appointment of solicitor 262 Appointments, execution of 81 Apportionment of life policy 238 Appropriation of payments, rule as to 252 of purchase money, requisites to save interest by L98, L99, 518, 573, 574 Arbitrator as witness ' '" Architect, action by, against corporation 61 duties of 285, 510, 511 K.E.— 40 626 INDEX. PAGE. Architect's certificate, withholding of 285 Arrest, see malicious arrest 430 see false imprisonment 444 Artificial stream, rights to continuance of 375, 376 Assault and battery, action for 448 Assessment of damages, see damages 188 Assign, covenant not to 491 Assignee of reversion, right of to sue 486 of lease, action against 489 Assignment, requisites for valid 520 for benefit of creditors, creditor attacking trust deed .... 402 of covenant by one joint convenantee to his co-covenantees. 430 over of reversion by plaintiff 487 over of term by defendant 487 for benefit of creditors : See under fraudulent preference, action for 398 must be registered 407 Assignor of chose in action, where he may maintain action 521 " As soon as he is able," sale not void for uncertainty 280 Attendance of witnesses, how enforced 130 Attestation, when proof of necessary, how given 82 when required on power 80 Auction, sales of land by 202, 210 Auctioneer, action for deceit against 395 agent for sale of land 202 Clerk, authority of 531 liability of for conversion 456 liability of for negligence 315 signing under Statute of Frauds 202 action against 315 right of to sue for goods 536 liability of for refusing bids 456 Authority, action on warranty of 257 Avoidable contract, election to affirm 571 A u ;i I'd, action on 260 Awards, proof and effect of 58 Bad husbandry, action for 218 Baggage, liability of railway for 301 Bail bond, action on 251 Bail, conveyance to enable to justify for 544 Bailment, not a sale 523 misuser of things lent 466 Bailee, action against, defence of eviction by title paramount.274, 465 action against for negligence 315 liability of, for lost articles 274 Bailiff, action of sheriff against 315 INDEX. 'I'-". PAGE. Bank account, acknowledgment of correctness o£ 46 books, disclosure of bank accounts production of enforced 58 manager, representations of 458, 507 note, property in 462 shares, action respecting property in, burden of proof . . 12 what rate of interest allowed to 195 Bank of river, see disturbance of watercourse 373 Bankers, liability of as agents 508, 573 powers of, to bind principals 508, 573 rights of depositors against 292 Banking Act, powers of bank under 278, 468 Bankrupt estate, when interest allowed on debts 198 Bankruptcy : see action for fraudulent preference 401 Barbed wire fences, liability for 324, 349 Barratry 232 Bees, liability of keeper 324 Bench warrant, how obtained 132 Benefit societies, actions against 240 " Beneficial occupation " in use and occupation not necessary .... 217 Berne Convention as to copyright 380 Bill of exchange, oral agreement to renew 23 Bill of lading endorsed to bank-, effect of 278, 468 Bills and notes, actions on 221 defences in 227 Bills of Lading Act, provisions of 241 Biographical sketches copyright in 382 Birth register, how proved 94 Blackstone on jurors 184 summary of law of evidence 4 Blank in deed filled up after execution, effect of 85 Blind witness, evidence of, how obtained as to document 170 Board for life, not within Statute of Frauds 533, 534 Boarding-house keeper, lien of 467 Bond, action on 498 issues in 4S5 " Bonus " explained 27 Book debts not within Chattel Mortgage Act 586 Books of account, as evidence 44, 55 corroboration given by 151 how far conclusive 48 Bottomry bond, requisites for 245 Boundary fixed by verbal agreement 451 admission of, requisites for 44 declaration as to, how far evidence 35 Breach of good husbandry, action for 492 62S INDEX. PAGE. Breach of covenant : see covenant, actions on 4S0 of promise of marriage, action for 257 under Statute of Frauds 534 Brittle goods, liability of carriers for 301 Broker, liability of falling market 515 Building contract, damages in action on 189 Burden of proof, in actions, where contributory negligence set up. 9, 310, 311 where agreement is that contract be reduced to writing. . 12 in action on agreement for maintenance 11 of notice to employees is upon master 332 in actions for negligence 9, 10, 306 in action against charterer 12 in action for collision 14 in action on covenant 14 in action to set aside deed of gift 11, 32 in cases under Factories Act 10 in action on foreign judgment 14 in action for obstruction to highway 14 in action on written contract 12 in action for wrongful dismissal 12 in action impeaching sale under mortgage 13 in action to annul will 12 for slander 12 to impeach on ground of undue influence 13 to set aside voluntary conveyance 14 in action on patent on issue that invention is not patent- able 14 where chattels claimed by wife 11, 565, 566 production of papers by person having, compulsory 50 rules as to, how far conclusive 12 under Act respecting assignments 28 rules as to 10 Buyers of goods, dispositions by 460 By-law, construction of, not to be ascertained by extrinsic evi- dence 25 By-laws of corporation, how proved 90 Campbell's, Lord, Act 353 Canada Gazette, copies of, prima facie evidence of 89 Cancellation of deed, when may be ordered 410 Carload, meaning of 276 Carriages, negligent driving of 315, 317 Carrier, action against 299 by water 303 Carriers, passenger, Liability of 304 Cattle guards 343 INDEX. 629 PAGE. Cattle at large, damage to 337, 3 13, 350 Cause lists to be prepared by registrar 110 of damages must be causa us not proxima 308 Caveat emptor, when maxim applies 253, 281 Certified copies of registered instrument may be used instead of originals after notice 93 Certificate of registry of vessel, effect of as evidence *:". of registration of documents, effect of 94 Cestui que trust, may give evidence in corroboration L51 Challenges to jury 1-1 Challenging juror, time for 127 Champerty explained 523 Change of possession, question for jury 587 how far necessary 408 Character evidence, when admissible 7 Character, evidence as to, limitations on 1GG of witness, see moral character 101 Charge by judge, objections to 172 Charter party, action on, loss of vessel 246 clauses commonly contained in 242 Charterer, action against, burden of proof in 3 2 Chastisement, reasonable, defence of 448 Chattels, action for, as distinguished from work and labour 285 gift of 540 Chattel mortgage, affidavit on, requisites for 54, 583, 5S4 clauses in, waiving Interest Act, effect of 197 doctrines relating to policy of 582 right of mortgagor to remain in possession 465, 466, 5S6 security for bona fide debt 403 Check for baggage required 337 Checking baggage, remarks on custom of 302 Chemicals, danger arising from 334 Cheque, refusal to pay by bank 223 effect of as payment 222. 573 t Jhief of police, action against 432 ( 'hildren, evidence of 146 employment of 333 Child, negligence of, liability of parent for 315, 316 Chose in action, foreign judgment a 72 Clearing land : Bee waste, action for 220 Clerk's entries, how far evidence 38 Club, action against members of 516 Collateral agreement, not in writing, when provable 26 facts, evidence of not admissible 6 matters not provable by judgment 71 questions must be decided by judge 169 630 INDEX. PAGE. Collateral security, action by assignor 522 Collision, liability in case of 319, 321 action for damages, burden of proof in 14 Combination in patent law 392 restraint of trade 4;;3 Commercial agency : see mercantile agency 314, 421, 510 compilation, copyright in 3S2 Commission, action for by land agent 511, 512 to take evidence, objections to 154 for examination of witnesses for foreign tribunal 138 Committal of witness for contempt in not answering 154, 172 Common carrier, liability of, for servants 314 denned 299 Common rumor, evidence of, should not be taken 150 Company, admissions of directors or agents of, effect 44 by-law of, minutes of, proof of 60 liability of, note signed by president 228 signature of, by agent 506 Comparison of handwriting, how made if disputed 168 Compelling witnesses to attend 130 Compensation to families of persons killed 353 for injuries to workman 328, 335 Competency of witness, test of 148 Compulsion of law, money paid under, not recoverable 292 Computing interest, proper mode of 195 Concealment, defence 232 Condition attached to verdict by judge after rendering improper. . lS'i precedent, performance of must still be proved 10 precedent, pleading 502 Conditional assignment, effect of 521 tender, not good 596 Conduct money, when recoverable 291 when witness entitled to 131 Confidential relations, presumption as to 32 ict of evidence, rules for dealing with 150 of laws, see foreign law 62, 528 Confusion of goods, see mixed goods . 462 Conjunctive condition, effect of 483 Consequences of Act presumed 2S Consideration presumed for bill of exchange 73 mentioned in conveyance, not conclusive evidence 24 what may form valid 215 Consignor and consignee, rights as between, on shipment of goods : see carrier 299 Consolidation of mortgages, doctrine recognized 576 Constable, action against, for false arrest 433, 445 [NDEX. 633 PAGE. Construction of contract, evidence of surrounding circumstances. 23 of mercantile contract for Court 535, 598 Constructive notice, purchase for value: Bee purchase without m. I ice 7,77,. ."7!». 581 Contemplation of indebtedness: see fraudulent preference .... 308 Contempt of witness in not answering, when punishable 172 Contract, damages in action on 189 denial of, effect of 503 induced by fraud 412 of sale, proof of documents in ."7 by corporations, liability on 61 partly written, partly oral, must go to jury as whole 27 actions on, simple 201 on specialty 480 Contracts by correspondence 205, 537 Contractor, causing nuisance, liability of 358 negligence of 312, 314 Contractor leaving obstacle on highway, liability of 314 Contradicting opponent's witnesses, rules as to 161 party's own witness 162 Contradictory evidence, findings of Judge not interfered with .... 149 Contributory negligence, not applicable to infant 310, 550 defence of 310 Contribution between sureties 2S9 none between wrong-doers, extent of rule 524, 594 Conversation, how placed in evidence 158 prior to written agreement not receivable 24 Conversion of goods, action for 400. 453, 171! Conviction, effect of, proof of 59, 160 Copies of depositions certified by persons taking the same admis- sible in evidence 53 of documents may be admitted as evidence, when 19, 107 Copyright, subjects and conditions of 378 Corporation, action for deceit against 395 books, how proved 59 deeds 60 liability of on executed contract 61, 514 liability of, for false arrest !•"■! right of, to bring action for libel 422, 420 libel on 61 contract not under seal, bow far bound by 286 effect of Act incorporating LOO liability of on contracts partly performed 62 seal, absence of 60 Correspondence, contracts by 21 15, 537 Corroboration of witnesses, when required 151 632 INDEX. PAGE. Costs, general rule as to 199 in vendor's suit relating to purchase of land 207, 208 Co-trespasser, admissions of 45 Counsel, advice of followed, effect, in action for malicious prosecu- tion 440, 444 admission of, effect 45 as witness 147 for witness under examination 145 who entitled to right to reply 176 not to be heard on objection of witness to answer 177 how far allowed, if party conducts his case 177 right of where separate counsel for different defendants. . . 177 right of, to address jury 177 conflict, of, at trial 180 reading inadmissible document 86 Counterclaim, defence of 594 Counterpart as evidence 16 Country solicitor, lien of 465 County Court cases may be tried in High Court 114 Course of evidence at trial See p. 108 Covenant, action on 480 against encumbrances, runs with land 481 for quiet enjoyment, highway not within 367 for renewal, priorities as between mortgagee of lessor and lessee 581 not to sue tort feasor, effect of 484 for title, extent of 495 an estoppel 482 burden of proof in action on 14 to pay taxes, construction of 495 for title, measure of damages, in action for breach 495 not to assign, action for breach of 491 in restraint of trade 541 not to carry on trade, action on 492 actions on, limitation of time 554 relating to land, actions on 484 to repair, action for breach of 494 to insure runs with land 493 to yield up possession of premises, action for breach of.. 497 Credibility of witness, form of question as to 167 how decided 149 Cndit, time of, in action for sale of goods 275 Creditor, liability for negligence or laches 317, 479 Crime or interest not to incapacitate witness 143 Criminal acts of third persons, loss caused by, liability for 310 offence, securities given to prevent prosecution 541 INDEX. 633 PAGE. Crops : see growing crops. Crops to be grown 584 Cross-examination of witnesses in action fur defamation -41s on irrelevant questions L56 by two counsel 155 limits of counsel in 1 ">."> Crown lands department, < mtario, records of, prima facie evidence 91 Crown, liability on implied promise 287 Culpable negligence, means actionable negligence 307 Currency, statute as to 595 Custody of old deeds, evidence of 5G Custom : see trade custom 506 Customary right, limitation of 597 Damages, assessment of 1S9, 308 action for affreightment 243 building contract 180 covenant against encumbrances 406 delay caused by contractor 189 disturbance of support of land 302 for deceit, actual damage necessary '.','■ >7 for selling goods distrained 42! for infringement of patent 388 in action against bank for refusal to pay 202 in action for breach of covenant not to carry on business 492, 545 for personal injury caused by negligence 350 to goods from negligence of warehouseman 310 in action for breach of covenant to repair 404 in action for work and materials 2S7 in action for wrongful dismissal 266 refusal to accept goods 2S4 in action for breach of covenant not to assign 401 in action for conversion of goods 453 in action for detention of goods 474 in action for conversion 454 in action on bond 408 in action for malicious prosecution 440 in action on fire insurance policy 236 in action for mesne profits 440 in action for trespass 453 in action for wrongful act causing death 353 in action against sheriff for conversion 456 in defamation 41S in penal action 500 in negligence of railway companies 308 on drainage improvements :'>14 634 INDEX. PAGE. Damages in action for not loading 243 in action for non-acceptance 272, 284 in action for non-delivery of goods 284 in action for obstructing light 363 in action on sale of land 215 in action for trespass to personal property 448 in action against carriers 273, 300 where goods to be delivered at a future day 273 in action for irregular distress 426 in action against agent for loss on investment 313 in action for nuisance 361 in action for breach of covenant to repair 494 in action on breach of warranty 255, 256 in action for use and occupation 217 in action for waste 219 must not be too remote 310 on covenant, not to assign without leave 491 on re-sale of land 214 through injuries, caused by non-repair 312 Dangerous things, on land, liability for 326 Deaf and dumb person, testimony of 146 Death, presumption of 28, 33 wrongful act causing 353 sentence, person under, not competent witness 145 of juror, effect of 141 Debentures contract to print how construed 285, 534 Debt, action for by lessor 489 Deceased person, actions respecting estate of, corroboration re- quired in 151 Deceased witness, deposition of, admissible 145 Deceit, action for 394 Declarations against interest, difference between them and de- clarations made in course of business 38 when admitted 37 statements by lessor 572 accompanying Act, how far admissible 36 of right, how far admissible 36 as to ownership of goods 39 of third parties as to nature of deed 39 Declining to answer, rules as to 165 Decree, proof of 55, 75 Description of land, requisites for 69 rules for construing 31 Dedication of road, what sufficient 365, 369 Deed, absolute in form, presumption as to effect 31 construction of, rules for 32 I N DEX. Deed of Rift, what necessary to sustain 11, 800 action i" Bel aside, burden of proof in H, 82 retention of, effect of SI actions on, issues in 4&j mode of proving 84 declaration cutting down to mortgage 38 Defamation, action for: see also Libel, Slander 418 evidence of bystander 422 depriving party of costs 423 Defamatory article, liability for 414 Defective appointment will not be cured 81 machinery, liability for '•'•'• > {) < :> >-'- s.vstein, injury caused by : >.54 sidewalk 313 Defects in jury list, not sufficient to disturb verdicts 123 I defendant called as witness by plaintiff, effect of 158 Defences generally .applicable (alphabetical list) 501 Degrading questions, how far to answer 165 Delivery of goods, proof of 273 under contracts of affreightment 244 Demise, indenture of, actions under 489 Demurrage days 243 explained 24. > 1 departmental books, entries in, prima facie evidence 91 attested copies of, to be evidence 91 Dependent or independent covenants, how construed 4S0 Deposit, what required t<> recover 213 Deposition, evidence taken, may be used when 129 copies of, admissible in evidence 53 in former actions, when admissible >•> effect of 51 Depositor in bank, rights of 292 Descent under Devolution of Estates Act 25 Description in chattel mortgages 68, 585 Destruction of articles to be made by contract - vS of goods 276 premises by fire, when liability continues 217 of property, effect of 276 Detention of goods, action for 474 1 deviation, when justifiable 244 Devise, presumption of acceptance 2S Devolution of Estates Act 524 Dies, nan juridicus, closing case on 186 Disabilities under Statutes of Limitation ,; " Disagreement of jury, effect of ,ss Disclaimer, defence of *89 636 INDEX. PAGE. Disclosure of information 447 Discovery, consequences of disobeying order for 118 examination for, may be used at trial 116 end of 560 Disbonour, notice of 227 Dismissal of action, by trial Judge on failure to agree ....141, 187 wrongful, action for 265 Discrediting witness, rules as to 160 Discretion as to order of evidence 173 Dispensing witb jury after evidence taken 141 during progress of trial 187 power of Judge 141 Dispersal of jury, waiver 186 Dispositions by mercantile agents 458 by sellers and buyers of goods 460 Disputed handwriting, how comparison of made 168 Disqualification of witnesses 145 Distress, excessive 424 illegal 427 irregular 426 by landlord, effect in action for use and occupation 218 Disturbance of support of land, action for 362 wrongful 424 of water course 370 of way, action for 363 Division Court execution, title under 76 Document, duty of counsel desiring to put in 179 kept back by party, presumption as to 31 offered, but rejected, presumption in case of 31 put into hands of witness, how far liable to inspection . . 158 referred to by witness must be produced, when 170 when privileged from production . , .. . 136 Dogs, liability of express company for failure to carry 303 worrying sheep, liability for 323 Dominant and servient tenements 367, 375, 559, 560 Domicile, change of, evidenced by intention 65 change of, does not affect matrimonial domicile 65 Donatio mortis causa, requisites for 526 Double rent, action for 498 value, action for 497 Dower, action for 258 Draftsman, how far evidence of admitted 40 Drainage improvements, damage caused by 314 right of as servitude 373 Drawer of bill, action by, against acceptor 226 Drawings, copyright in 379 IMH . i'ACE. Driving, negligent, action for 31" Drunkenness, defence of, in action for wages 269 effect of on contract 652 Due diligence, depends on circumstances L37 I duplicate incorrect, effect of '- v 1 »uress, effect of '- s 1 Mity to answer questions, general verdict 182 to submit questions 182 Basement : see disturbance of way 366 obstruction of light, or air '■'•*'>'■'• abandonment of, how shown : '> r >~- 368 extinction of ,( '' ' interruption 300 right to by user 558, 500 to appropriate water of stream 374 to float logs, extent of 374 unity of possession, extinguishes 366 Electric tramway, liability of company for negligence 352 Electrical appliances, liability arising from use of 331 Employer, action against for damages by agent 509 Employers' liability for negligence: see action for negligence.... 311 liability policy, actions on 240 Endorsee, action against maker or acceptor 220 of bill, action by, against drawer 227 Endorsement, how proved 226 English bankruptcy, effect of !,, 1 Entries on lands of infants 556 by deceased person in books, how far evidence 36 Entry for trial, rules as to 118 Envelope and letter connected as one >3S Equitable issues, how tried 115 judgment on 1S7 lien explained 470 property charges on, priority of - ,v l Equity of redemption, conveyance of, how construed 32 Erasure in corporation books, presumption as to 60 in deed, presumption as to 00 in will 104 Escape, action for 315 Escrow, requisites for 85 Estate agent, suit by, for commission 511 Estoppel by conduct, fraud necessary to 47, '■'>'■*' covenants for title are sufficient l v - t of recital as 46 requisites for 46 Evidence Act, Canada • ,; 1 638 INDEX. PAGE. Evidence, confined to issue G tendered, Judge may refuse to receive 172 Eviction when a defence in action for non-payment of rent .... 4S8 Examination for discovery, cannot be used as admission 41 in former actions, when admissible 55 of defendant, reading to jury 155 of witnesses, general principles relating to 147 of witness, rules for 152 Excessive distress, requisites for action 424 Exceptions from deed, proof of where insufficient description . . 69 Exclusion of witness 167 Execution creditor, position of under Registry Act 577 stay of, rules as to 199 time of binding goods 462 writ of, effect of in evidence 107 Execution in blank 499 Executor's books, how far evidence 37 Executor de son tort, declaration of deceased 466 cannot set off debt due testator 589 Executor may maintain action for use and occupation 217 over payment by 289 powers of, under Devolution of Estates Act 526 when chargeable with interest 479 Executory contract for sale of goods 276, 282 Exemplification, explained 49 of foreign judgment, when sufficient proof 75 Exemptions from distress 425 Exorbitant interest, duty of Court as to 198 Expert evidence, defined 168 on questions of foreign law 63 Express company, liability of, to public 303 Expressions, use of, denied by witness, how proved 153 Extension of time for payment of note 23 of time for payment of debt 250 Extortion : see Money Lenders' Act 193 Extracts from letters in affidavit cannot be admitted 51 Extras, action for, evidence in 16 when recoverable 285, 286 Factories Act 333 334 burden of proof in cases under 9 Factors Act 453 " agent," construction of 462, 508 powers of partners in 466, 515 Factor, lien of 457, 465, 515 Failure by jury to answer material questions, effect of 181 of title of chattel, amount recoverable 284 INDEX. 639 PAGE. " Fail comment " '- ' Fair dealing and not forfeiture, presumptioD in favour of False arrest, liability of corporation 5 -- imprisonment, action for 444 a^iiinst corporation 61 course to be followed by Judge at trial 446 pretences, goods obtained by 467 representation! action for 394 Fare, passenger not paying may be expelled 336 Farm crossing, acquiring right of way by user 367 liability as to 349 railway company must make 336 Farrier, right of lien 467 Fellow servants, actions for negligence of 328 Fences, liability to maintain along tracks 349, 350 Ferry, action for disturbance of 377 Fictitious names of witnesses, how document proved x - Field notes, when admitted 80 Finder of chattels, liability of 457 Fire, caused by sparks from engine, action for 345 from steamer 7 destruction of premises by, effect on liability of tenant. . . 217 negligent use of 3_7 rights of mortgagor and mortgagee in case of 236 setting out, action for 327, 345 Fire insurance, actions on 2.54 a contract of indemnity 236 Firm, right of to sue for slander 419 Fishing and shooting, rights of :: '-» Fixtures, explanation of 463, -!<>! may be severed from realty 586 Forbearance to sue 528 Foreign bankruptcy poceedings, effect of 64 bill, damages on 223 Court, consent to jurisdiction of •-' postmark, how far evidence 80 Foreign judgment, action on, burden of proof in 14 defence of fraud on foreign Court 397 effect of 64, 65, 67, 72 how proved 62, i ■ > TO in rem, conclusive '- pleadings, in actions on U6 Foreign law, how far contracts governed by '-' s importation of prohibited goods 543 liability of master to servant for injury does not depend on 65 640 INDEX. PAGE. Foreign legislature, no power over real estate in Canada 64 usage rejected 63 Foreman, negligence of, how far master bound 334 Forests, destruction of, by fire 327 Forfeiture of lease 477 Forged instrument money paid on 291 will, payment under, effect of 87 Forgery, defence of 529 Formal defects do not invalidate affidavits 53 " Forthwith," meaning of 402 Foundations of buildings, action for not building of sufficient depth 326, 327 Fox's Libel Act 415 Fraud : see action for deceit 394 definition of 408 defence of 397, 530 ground for rescission of contract, when 291 of agent, how far binding 508 Frauds, Statute of 201, 248, 27c, 531 selected sections 531 Fraudulent conveyances, statute as to, of Elizabeth 409 intention, material element 411 preference, action for 398 representations, requisites for 397 sale of goods, no property passes 457 transfer, evidence necessary to shew 400 Free on board, contract for sale 2S0, 281 Frog spaces to be kept clear 345 Frontage rates, encumbrances 207 Furnished house, defence of no beneficial occupation 218 lodging, no implied agreement 494 Future-acquired property 68, 584 Gate across highway, effect of 369 General average, contract of affreightment 245 description, governed by particular description 32 trade mark, defined 384 Gift, effect of 32, 522 of goods, when property passes 455, 540 Going-away crop, no custom as to 598 Good husbandry, liability for want of 220 Goods, accepted in satisfaction of debt 573 bargained and sold 272 conversion of 453 detention of 474 disposition of 460 loss or injury to : see carriers 299 i\i)i:x. 641 PAGE. < ;. s Guarantee, action on 248 proved by letter 240, 539 Guardian, admissions of, how far evidence 43 Habendum clause repugnant, effect of 483 Handwriting, how far sufficient to prove identity 70 proof of, how fnr a document, thereby made evidence... 158 proving of, in case of agency >06 1 [earsay, rules as to 33 High Court cases may be tried in County Courts 114 Highwater mark explained 375 Highway, dedication of 364, 369 intention to dedicate, how proved 32 nuisance on •■ •• ' obstructions on 355 obstruction to, burden of proof in 14 ownership of land adjoining 33 property abutting on. liability of owner •>2«i state of repair, question for jury 313 Hire receipts, transfer of rights under 47:;, ;>sG Hiring agreement : see action for wages 266 Histories, effect of as proof 67 Holding over by tenant, effect of : see double value 497 Holiday, Dominion enactment as to 102 I [olidays, 375 Inconsistent findings of jury 1 S| statements of witness, how proved 162 [ncrease, righl to in case of bailment ■ ,,; -' Encumbrances, covenanl against ''•"■ Indemnity : see guarantee 248 Indian, oath <>f "8 sections fr.nu Indian Art « status, how proved •' ,s liability of to general law » 19 Indictment, effect of in proof ' " Indifference of witness may be called in question 167 Indorsee v. maker or acceptor 226 v. drawer 227 and indorser — ' Indorsement, how proved 226 Infant apprentice 556 fraudulent representation of age 550 when infancy a defence > ,1( barred by Statute of Limitations 556 liability of father for goods supplied to 279 no contributory negligence, in case of 310, 550 wages of 207 Inference from not calling party 160 1 aferior Court, effect of judgment 76 judgments, in, how proved To Inflammable matter, negligent keeping of 327 Inflammatory address by counsel 186 Informal headings in affidavits, etc., not to invalidate 53 Infringement of patent 38S Initiation procedings, action for damages caused by 1 is Innkeeper, action against 295 lien of 467 Innuendo 415 I. O. U., how far evidence of account stated 295 Inquisition by coroner, when admissible in proof 76 Insanity, defence of 552 Inspection, a condition precedent 281 of copy of document 108 of property, rules as to 183 Instalment, sale of goods by 275 Instalments, due in contract of sale -11 Insurance, breach of covenant to insure 493 money, receipt of by landlord, effeel of 217 policy, action on 228 right of party to insure '-"-'■ ) See marine, tire. life. 644 INDEX. PAGE. Insure, covenant to, action for breach of 493 Intention of parties to a deed paramount 31 Interest Act 191 cannot be waived 197 Interest, cases on 195 claimable under written instrument 195 how far chargeable on account stated 295 in fire policies 236 in marine policies 229 on account of work and materials 2S6 on foreign judgment, when allowed 74 matters of public or general, declarations as to 34 mode of calculating between debtor and creditor 199 not to incapacitate witness 143 on money obtained by fraud 530 on mortgage 196 post diem, rule as to 196 payable by purchaser on purchase of land 209 right to recover, paid under compulsion 293 rules as to 191 under written agreement recoverable as damages 197 proper mode of computing 195, 199 when allowable in case of bankrupt estate 198 what rate may be claimed by bank 195 Interlineations in a deed, presumptions as to 56 in corporation books, presumption as to 60 in will, presumption as to 104 Interpretation, Dominion enactments respecting 100 Provincial enactments respecting 98 Intoxication, action against innkeeper 296 contracts induced by 554 Investment, agent's negligent 313, 509 " Invitation," obligation arising from 326 Irregular distress, action for 426 Irrelevant inquiry not allowed to be introduced 162 Island, right to when formed by alluvium 478 on, action for goods lost by 273 Joint contractors, action against 250, 287 judgment against one, bar against the other 565 Joint covenant, actions on 480, 481 covenantee may assign his interest 480, 482, 483, 520 defendants, admission of 45 stock company, liability for shares in 559 note signed by president 228 tenant cannot maintain trover 454 or ejectment unless ousted 476 imu:x. 645 PAGE. Journals of provincial legislature, protection of persons publish- ing abstracts of papers in 92 Judge, functions of 171 duty of in directing jury 171 may make use of knowledge of facts 173 may receive in evidence plaintiff's or defendant's books of account 55 may send back jury, to reconsider findings 187 may order trial by jury or without jury 141 may inspect premises 1^ : « reading examination to jury 154 power of to direct verdict for plaintiff 187 right of to control jury 142 duties of, at trial of action for false imprisonment 446 Judge's notes, may be used as evidence 54 order, how proved 95 signature of 97 Judgment, limitations of time applicable to 554 by default, how far estoppel 4S procured by fraud 412 effect of, when proved 70 how proved 71 Judicial notice to be taken of statutes 98 taken of territorial division 17 Junior counsel, rights of 17'.', I s ') Juries : Blackstone's summary as to 120 Ontario Act respecting 123 of merchants (special) , when they may be had 126 Juror connected by marriage with party, effect of 126 death of 141 illness of HI Jury, actions against municipal corporations, must be tried by judge without jury 139 conduct towards I s " defects in jury list 123 actions which must be tried by right of judge to take from 172 ten jurors may give verdict <>r answer questions 140 exhausting panel 125 notice rubs as to 11" Justices of the peace, act to protect 444 Keeping of animals, negligent 323 of fire or inflammable matter 323 Knowledge of solicitor, imputation of, acting for both vendor and purchaser 32, 582 Laches, defence of 47! 64 6 INDEX. PAGE. Laches, when imputed 479 Land agent, commission due to 511, 512 Land, sale of, what requisite to bind vendor 203, 210 action on 201 defence 209 covenants relating to 484 disturbance of support of 362 negligent use of 325 recovery of, action for 474 trespass to 450 Lands titles instruments, how proved 76, 92 Landlord and tenant, liability of for nuisance 359 See distress 424 Latent defect in grant, not to be remedied by parol evidence ... 26 Lawful act producing injury, action for 325 Laundryman, power of driver to give credit 513 Lay days explained 243 Leading counsel, rights of 179, 180 Leading questions defined 152 Lease, action for rent under 486 forfeiture of 477 proof of 490 away going crops 598 evidence of parol agreement as to covenants not admissible 26 necessity for registration 5S1 actions on, issues in 486 Lectures, copyright in 382 Legacy action for 267, 293 Legal and equitable issues, how tried 115 Lessor and lessee, actions on lease 486 Lessor of chattel for hire, implied warranty by 254 Letters of administration, effect of as procf 87 how far evidence 106 Letter carrier, liability of postmaster general 304 Letters, use of series of 163 contract by correspondence 205, 531, 537 Lex fori, presumption as to 230 " Liabilities" definition of in Interest Act 197 Libel, action for by corporation 61 particulars of evidence in mitigation 130 powers of court to direct jury as to verdict not applicable 185 rule as to evidence omitted does not apply 171 See action for defamation 413 Libel and Slander Act (appendix) 616 Lien of bank 553 on chattels 462, 478 I Mil. A. PAGE. Lien, defence of '"» :; . 515, '<'•- fur freight, shipowner has 243 Conditional Sales Act, vendor's lien under 171 note, aol promissory note 162 of innkeeper, how construed 297, -107 of wharfinger 553 of unpaid vendor of manufactured article 472 under Factors Act 161, 515 vendors, when it arises -1°> Lien notes, evidence of warranty not included 17:; Life insurance, action on policy of 237 apportionment, of policy 238 premium, effect of paying 574 Light, obstruction of 363 Limitations, statutes of 553 as applied to ways 366 governed by lex fori -7'.' Liquidated damages, distinction of from actual damages L89 Livery stable, how far a nuisance oi'.u Livery stable keeper, lien of 467 I * >eal custom, requisites for 596 Local improvements, how far encumbrance (Quebec) -11 Locality of debt, where Go Locomotive engine, liability for fire, caused by 338 Lodger's goods 42S Lodging house keeper, liability of 298 Lord Campbell's Act : '>.~>. - ! Lord's 1 >ay Act 541 Loss on marine policy, explained 230 Lost deed, how proved 17 Lost document, when secondary evidence of can be admitted .... 18 construction of, for Judge 18 Lost patents, how proved 79 Lost wills, how proved 104 Luggage, liability of railway company to deliver Lunacy, inquisition finding, how far proof 70 Lunatic, actions by or against, corroborative evidence required.. 153 competency of, as witness 146 Magistrate, action against 442. 445 Maintenance and Champerty 564 Maintenance of husband and wife, agreement for, burden of proof 11 Maker of note, entitled to receive note on payment 228 Malice in action for defamation -11 s in action for malicious arrest l.'ll how far proof necessary in action for malicdoUE tion 438, ! 11 648 INDEX. PAGE. Malicious arrest, action for 430 action for, how original affidavits proved 51 effect of compromise 440, 441 taking counsel's opinion 442 Malicious prosecution, action for 437 evidence required 441 Manager, negligence of, how far negligence of master 334 Manufacturer, implied warranty by 254 Maps, admissibility of 79 Marginal note of statute, not part of statute 97 Marriage, defence of 564 how proveable 16 promise of, action on 257 register, how proved 95 Marriage settlement, action to set aside 401 Married woman, contract by 287 a joint contractor, effect of judgment 565 separate estate 565 Marine insurance, action on policy of 228 evidence of usage, in action on policy 597 Marksman, execution by, how proved 85 Marshalling of evidence in testimony by Judge 173 Master and servant, contract to devote entire time 267 limit of master's liability 331 responsibility for injuries 333 power of servant to give credit 513 See action for wages 265 See wrongful dismissal 268 Master of ship, implied contracts by 243 Material variation in parts of indenture, effect of 81 Materials, contract for not within Statute of Frauds 285 Materiality obvious, may dispense with evidence 7 Measure of damages : see damages. Mechanics' liens 462, 478 for work on chattel 462 Medical examination in action in respect to bodily injury 116 Medical practitioner, actions against for negligence 264, 316 actions by 264 Medical witnesses, rule as to examination of on books... 40, 175, 317 Memorandum to refresh witness* memory, rules as to use of .... 169 Mercantile agency, liability of, in damages 314, 421, 510 no special privilege of 189 Mercantile agents, dispositions by 458 Mercantile contract, rule for construction of 535, 598 Mercantile usage : see trade custom 272, 596 Merchant, action by against ship owner 243 INDEX. PAI Merchants, juries of, when they may be had 126 Merger, defence of foreign judgment, not a merger 7:; .Mesne profits, a(',U M istake must be expressly charged 24 effect of on admission 41 evidence omitted by, how supplied 170 in written instrument, when corrected U4 correction of schedule in deed to trustee 40S Mistake of fact, mistake of law, money paid under 291 Misunderstanding of contract, not alone ground for rectification 570 Mitigation, evidence in action for false imprisonment Ml in action for defamation 418 in action for seduction 430 Money Lenders' Act l : >: ' Money had and received, action for 2'U lent, action for 290 paid, action for 288 in forgetfulness, right to recover 293 under mistake of fact 290 under mistake of law, not recoverable 293 under protest Monuments, under Survey Act 364 Moral character of witness, impeachment of L61 Mortgages, doctrines relating to 576 Mortgage, interest chargeable from what dates 199 interest on, mode of calculating 1 :»7. 199 interest on moneys secured by 191 of foreign lands, action on t; 1 money secured by, recoverable as loan without covenant to pay 182 Mortgagee, how far liable to apply insurance moneys 236 may recover on marine policies 231 of chattels, right of to bring trespass l.'l 650 INDEX. PAGE. Mortgagee, liability of for improvident sale 314 Mortgagor, duties of fire insurance companies as to '-.',') Motor man, negligence of 352 Municipal by-laws, evidence in proceedings on 145 Municipal corporation, action for libel lies against 420 liability of for nuisance on highways 355 liability of on warrant issued by municipal officer 449 Music lessons not a nuisance 362 Names of parties, how far necessary in contract of sale of land . . 206 Navigable river, definition of 370, 375 Navigation, interference with when a nuisance 360 of ships, liability for negligence 319 Necessaries for ship, action for 33 Negligence, action for 306 burden of proof in 310 action by master against servant, proof of damages .... 71 improper investment by agent, damages, measure of .... 313 miscellaneous instances of 311 of fellow servants 328 of railway companies 335 of solicitor, action for 263 what necessary to maintain action for 306 Negligent driving of carriages 317 keeping of animals 323, 324 keeping of fire or inflammable matter 327 navigation of ships 319 use of land 325 See nuisance 354 disturbance of support of land 362 Newspapers : see defamation 414 New trial, erroneous ruling as to right to begin 175 Non-acceptance of goods, action for 272 No damages, finding of 419 Non-delivery of goods, action for 273 Non-delivery of goods by vessel, action for 248 Non-direction, onus on party complaining to show 181 Non-disclosure discussed 250 Non-repair, damages caused by 311, 494 Non-suit explained 184 by Judge 186, 187 when allowed 186 Not calling pprty, inference from 160 Not guilty by statute, right to plead 504 Not loading, action for 243 Not to assign, breach of covenant 491 No time specified, effect of 592 INDEX. 65] PAGE. Notarial certificates, effect of in evidence ,7 Notarial documents, how proved *' Notice, constructive _ Sec purchase without notice "•• Notice of abandonment of vessel, by whom to be given 232 of action, damages claimed through con-repair 313 4 or i defamation ~_ accident, requisites for 314, ooi dishonour ~~' to secretary of company " ] purchase without "'' Notice to admit documents and admissions 41 of intention to use certified copies of registered instru- qo ments to produce probate, effect of 1°*> to prove documents by producing copy 107 to use copy, contents of 90 to inspect, when to be given 11( effect of default U8 to produce effect of non-compliance with 117 1 "^0 how proved produce copy of will, effect of 8 * 119 of trial, rules as to x __ to quit, notice to produce, not necessary 4<7 under Registry Act 5S0 Notorious facts, how far to be used as proof 67 --•■> Novation, defence of effect of 2G7 '- S ; N , elty in new combination (see also Patent of Invention) 389 Nuisance, action for '"'_ Oath of witness, no prescribed form of 14 ' Object of evidence, rules for obtaining » Objection to juryman, when to be taken 126 to invoice, absence of, effect 3° Obstruction of light or air 363 See disturbance of way 363 to highway ::11 - : ;;>~[ Occupation of house, as compensation for Bervid S - ,| ' 1 Occupation rent not to be charged against person in occupation under mistake of title '_ l -"_' Offer by purchaser at auction to I of 531 i Kfice copy, how far admissible 220 Oil, right to bore for -- Old deeds, requisites for proof of •''' Omission to reply to letter, how far evident e of assent 42 652 INDEX. PAGE. Omission to swear juror, effect of 123 Ontario Evidence Act (appendix) 602 Ontario Gazette, copies prima facie evidence of 89 Ontario Statutes, 1911 (memo.) v Onus probandi : see burden of proof 9 Option not a nudum pactum 572, 591 Oral evidence, to explain or add to documents 21 Oral acceptance of written offer, effect of 2G, 206, 538 Ordering witnesses out of Court, rules as to 167 Original allowance for road not barred by possession 556 Ownership of vessel, how proved 96 Papers proved but not filed or read, right to read 175 Parent and child, action for damages for death of child 350 action for negligence in case of 315 effect of possession as between 558 presumption as to gifts 32 right of child to wages for services rendered 266 right of child to wages earned 267 liability of parent for act of child 316 Parol assignment of fund, effect of 521 Parol evidence to vary writing, mistake must be charged ..24, 571 See oral evidence. Part payment of debt, payment of 561 of judgment, effect of 505, 555 performance of contract for sale of land 206 of obligations considered 505, 555 Party appearing in person, rights of 167, 179 Parties to cause may give evidence 144 Parties to deeds, proof of identity 69 Partner, acceptance of bill by 225 contract of sale by one 212 goods delivered to one of firm 277 hiring by, ceases on death of one 267 how far firm liable for personal advance to 466, 515 liability of firm, on orders signed by one partner 277 may take chattel mortgage for firm 587 power of to endorse 223 release of one 250, 589 right of to pledge goods 466, 515 slander of 419 Partnership, admissions in cases of, how far binding 44 how provable 515 parol agreement to form 533 Party conducting his own case entitled to remain in Court 167 summoned as witness by opposite party, effect of non-at- tendance 132 iMn;x. PAGE. Party, effect <>f calling opposite party L33 Passenger carriers, actions against • , : || < not Insurers :'."! Passenger on highway, liability for accidenl to 314 Passenger's Luggage, liability of common carriers 303 Pasturing, ri^ht of, not sufficient to justify action for I pass 453 Patent of invention, burden of proof in actions relating to .... 14 infringement of 388 right, action for bills given for 228 novelty 389 Patents for land grants, evidence to assist in construing 7s Payee, action by against acceptor 225 action by, against drawer Ul'T action by, against maker of note 225 Payment, defence of 572 by proportionate amounts, effect of on contract 287 presumption, as to rent with earlier payments made . . 30 under Statute of Limitations 563 when it must be averred 503 Pawnbroker, action against 298 interest chargeable by 19S P« digree, declaration as to, how far admissible 34 1 'enalty, action for 500 Pendency of foreign suit, not a bar 7 ■". ptory challenge, when objection to be made 125 i 'ersonal action now survives 317 rial injury combined with injury to property to third person 523 property, trespass to 44S Persuading servant to break contract, action for !.;."> Photographs as evidence 79 Physician, actions against for negligence 204,316 evidence tender. d in reply 1 7"> how far may refer to works of authority 40, 317 Place for inspection of goods 272 Plaintiff declining to proceed, effect of 142 Plans, admissibility of 7!> boundaries, parol evidence of 452 older sustained 80 roads laid out on 365, 3GS registry of, effect of .">t»S, 5S0 Pleading, rules for 503 1 'ledge of goods by agent 458 Police constable, action against for malicious arrest 432 liability of corporation for. not agent 312 right of to arrest 117 654 INDEX. PAGE. Policy of insurance, action on 228 action on right to begin in 175 See marine, fire, life. Port, custom of, does not prevail against bill of lading . . . .59G, 508 Possession, covenant to give up 497 of land taking, effect of 214, 215 part performance 212 presumption in favour of 28 title by as against railway 351 Post mark, effect of as evidence 80 Poster, advertising account for sale 410 Postmaster, action against 304 Post Office Act, provision of as to actions against postmaster .... 304 Post office inspector not entitled to notice of action for defamation 420 Postponement of performance of contract 215, 535 Postponement of trial 142 costs of 143 grounds for 142 testimony at former trial 137, 138 Pounds, Acts respecting 428 Powers, rules as to execution of 80 Practice as to evidence at trial 108 Preamble of statute, when evidence 97 Preference : see action for fraudulent preference 398 Premium note, effect of non-payment of 238 Premium, recovery of, on marine policy 231 Prescription of right of action for injury to property 367 Presentment, proof of 227 Presumption from retaining invoice 30 from certificate of registry of vessel 33 Presumption in case of foreign judgment 74 of delivery of deed 83 Presumptive evidence 27 Pressure, doctrine of 403 Previous conviction, proof of, how given 160 See also conviction 59 Previous statements by witness, examination as to 157 Price, presumption as to from retaining invoice 30 Primary evidence, rule as to giving 15 Principal and agent, liability of agent for negligent invest- ment 313, 509 presumption as to gifts 32 promissory note given to agent, how far binding 295 agent entrusted with goods 458 when agent chargeable with interest 197 liability in case of sale of goods to agent 276 INDEX. PAGE. Principal and agent, liability of principal for acta of agenl 507 power of agent to l»in«l two principals "' ratification ael off of claim against agent 513 Principal and Burety, admissions '>f, how Ear binding covenant not to sue with reservation, effed of 252, 545 effect of agreement increasing rate of interesl 1 '-' 1 rights as to appropriation of payment 519 See guarantee, action <>n tn res judicata as between '- Printed copy of notes of meeting, admissible when Printed heading, no part of letter 203, Private Art, how far evidence against strangers '•'• Private deeds and writings, retention of deed, effect of destruction of document, effect of 8i destruction of document, how signature in case of, may be proved S 3 requisites for execution of °- when proof of execution dispensed with 8G c-i rules as to proving _ Privileged communication explained n ' secondary evidence of 1 "' 1 Privilege in case of official documents ;mi 1"! Probable cause, malicious arrest 437 malicious prosecution _ Probate of will, how far evidence of will 86, L05 proof of Proclamations, how proved Production of necessary papers, compulsory 50 Professional man, action against for negligence, rule in 330 S9 Programme, evidence of Promise of marriage, action on -J' Promissory note, action on, evidence of identity « M 1'IS claim for interest on effect of accepting on account of debt 573 effect when taken in satisfaction 505 evidence to prove representative capacity - guarantee of interest on interest on after date of maturity 198 parol agreement to extend payment of, not admissible • • ■ • '-'•• See bills and notes -- ' Promoters for company, liability of 513 Proof of deed /_' ■• Proper custody." definition of Property in goods, time of passing '*■'•' 656 INDEX. PAGE. Prosecute, agreement not to, illegal 541 Protests of bills and notes, how far evidence 78 Provincial Act authorizing charges for interest 198 Proximate cause, action complained of not 308 of event explained 309 in insurance cases 309 in action on affreightment 243 Public books and documents, effect of as evidence 89 " Public Document " defined 90 Public official, witness fees of 131 Publication in libel 416 Purchaser of mortgage lands, liability of assignee or grantor 253, 481 Purchase for value, plea of 575 Purchase without notice of registry title 575 Quality, warranty of 253 Quebec, issue of subpoenas to 133 Quebec judgment, action on 116, 529 Questions to jury 181, 444 findings on, answers by jury 444 put to jury after verdict 183 in action for negligence causing death 182 how far obligatory on Judge 182 advisable in actions for negligence 307 tending to criminate, how far to be answered 164, 165 Quiet enjoyment, covenant for, effect of 496 Railway Act of Canada, provisions of 335 of Ontario, provisions of 340 Railway commissioners, board of, powers 335 Railway company, liability of, for baggage 301 liability of, as carriers : see carriers 299 See negligence 335, 345 breaking rules, liability as for negligence 345 liability of, as warehousemen 301 negligence of 335 Railway crossings, liability to maintain 345 Railway, liability of, for fire from sparks, from engine . , 345 Railway station, access to 344 Railway ticket, liability of company on 305 stop over tickets 305 Railway yard, precautions requisite 345 Rates and taxes, covenant to pay 495 Ratification 507, 513 by infant 550 Readiness to convey, averment of 208 to pay, defence of 486 Real estate agent : see Land Agent 511, 512 INDEX. 657 PAGE. Real property, action on sale of 21 il defence 209 Reasonable and probable cause 430, 444 question for Judge 439 Recalling witness, rules as to 159 Receipt by agent, effect of .' . r ,( it ; how far conclusive .'!'.» in mortgage, effect of ■}."« in full, how far evidence 293 for rent, how far parol evidence receivable as to 2<> Recital in deed, effect of 46 when an estoppel 47 in statute, how far evidence 97 Record of prosecution must be produced 442 Recovery of land, action for 474 of moneys by creditors, after deed of assignment 411 Rectification of mistake in written instrument, when allowed 24, 26, 569 of contract, when made 571 Re-demise clause, absence of 588 Re-entry, right of, in short form lease, extent of 483 Re-examination, when allowed 156 Refreshing of witness' memory by paper, rules as to 169 Refusal to answer, effect of 154 to accept goods — damages 84, 282 to carry goods, action for 299 to proceed, effect of 142 to produce agreement, effect of 137 Registered instruments, prima facie evidence 93 Registrar's duties as to trials 110 not bound to produce papers, except on order of a Judge. 94 Registration essential to title 578 of plan, effect of 365, 368 Registry Act, effect of on roads 365, 369 title, purchase without notice 575 Rejection of goods 280 Relation, doctrine of 449 Relative, action by for services 266, 267 Relatives, evidence of, value of 150 Release, defence of 588 Rent, action for 489 See action for use and occupation 216 devise of to attesting witness 533 payment of, how proved 27 Repair, breach of covenant to 494 K.E.— 42+ 65S INDEX. PAGE. Repair, as used in Municipal Act 356 liability of landlord 311 Repairs, lien for 472 Repeal of Act, effect of 99 effect of on persons acting under repealed Act 99 Replevin, action of 478 equitable title will support action for 479 declarations as to ownership of goods claimed 39 Representations by agent, effect of 457, 507 of authority, action on 257 Repudiation of contracts, requisites for 207 Repugnancy of statute 590 Requisitions on title, effect of answering 214 Re-sale by purchaser 214 Rescission, defence of 590 Rescission of agreement under Statute of Frauds 533, 590 of contract, for sale of land 206, 590 Reservation of trees in patent, effect of 457 Res gestce, original evidence 36 Res judicata, opinion of Court of Appeal, how far 95 how far an estoppel 48 plea of, effect of 72 See judgment 70 Respondeat superior, defence of 310 Restraint of trade, contracts in 541 Retention of deed, effect of 31 Return of goods, when allowed 255, 272 Reversion, action by assignee of 486 Reversioner, right of to bring action for nuisance 355 Right of way, evidence necessary to prove by lost deed : see also Way 33 by necessity 364, 366, 368 public, proof of 364 ivight to begin, rules on which right ascertained 174 Right to reply, rule as to 176 effect of erroneous ruling as to 176 on points of law 177 Riparian proprietor, right of 372 rights : see disturbance of water course 373, 376 Road companies, liability of 311 Road, dedication of 364 Rules of Court, how proved 95 of pleading 503 Runaway, liability for damages caused by 318 Sailors, action for employing incompetent 321 mode of recovering wages Addenda iM)i:x. Sailors, thefts by, liability for 247 Sale by assignee, how far within Statute of Frauds 202, KW of goods, action respecting 270 See Conversion of Goods l- ,s warranty on 253 wrongful •• ,;; action for not accepting goods -~- for not delivering goods 273 by agent : Bee Agent 458 of land, contract by agent 512 deceit in contract for 396 damages on resale 1 '• ,r > interest on appropriation of purchase money 199 effect of serving requisitions on title 214 purchase payable by instalments 212 writing of purchaser's name by agent, eff'ct of 203 signature by sheriff 202, 533, 53G under mortgage, burden of proof in action impeaching. ... 13 Salvage, action for 233, 268 explained 233 cannot be claimed by wrongdoer "-1 Sample sale by, action on 27- place for inspection 272 Saw logs, mortgage on, effect of 2S0 conversion of 456 Scienter 323 Scientific witness examination of IT" Sea shore right of ingress and egress 5~/J Sealed verdict, effect of 185 a. mode of recovery of wages Addenda Search for documents, insufficient, time to object 20 for lost primary evidence what required IS, 20 warrant, finding goods under not alone sufficient for arrest 446 Secondary evidence, no degrees of, how rule applied 19 of oral testimony when admitted 18 objections to, when to !><■ stand 20, 89 proof of telegram 103 requisites to admit 528 when admitted 17 Secret advantage, rule as to 408 defect, effect of on warranty 256 Seduction, action for 429 Seeds, liability on sale of 274, "''1 Seizure under execution, irregular, action for 315 Sellers of goods, dispositions by W0 660 INDEX. PAGE. Sentences of visitors, not necessary to prove grounds of 95 Separate defendants, right of counsel to act 177 Servant : see Master and Servant 267 Services rendered by relative, liability for 266 Setting down for trial 118 Set-off, defence of 593 Set off of claim against agent 513 Shares, sale of by broker 515 Sheep, killing of, by dog 323 Sheriff, damages, measure of in action against sheriff 456 duties of as to juries of merchants 127 duty of on non-arrival of Judge 113 duty of as to special juries 127 liability of bailiff, for negligence 315 lien of for fees 467 not impartial ground for challenge 125 Sheriff's jury, inquisition of as to value, how far evidence 70 Shipping, liability of ship owner for medical attendance 598 mode of recovering wages Addenda. necessaries for ship, who liable 33, 246 requisites for custom to bind foreign vessels 598 right of remedy in rem when enforceable against subsequent purchaser 96 navigation of, liability 319 interest in ship, how proved 229 Ship owner, action by or against 241 against charterer or merchant 24." Shipping agent, power of to bind principal 246 powers of, by receipt of a bill of lading 246 Shipment, evidence of 245 Signatures of Judges, judicial n< tice to be taken of 97 Silence, effect of 591 estoppel from 47 of pleading, effect of 503 of party, how far deemed admission 41 Simple contract creditor, right of to set aside mortgage 405 Sittings for trials, statutory provisions as to Ill Skill and judgment, when evidence of collateral matters relating to may be given 7 Slander, action for, burden of proof in 12 S< e Libel 130, 413 Snow on roof, liability of owners of houses for 316, 356 on sidewalks, liability for 356 Solicitor, action against for negligence 263, 315 admissions by, effect of 45 appointment of by corporation 61 INDEX. 661 PAQ& Solicitor and client, communications between when privileged... 136 communications privileged Ul> ' knowledge of solicitor, how far notice :; -- I. ill. action on -''- collecting interest on mortgage 292, -" 4 declining to answer ••"" in cause may be witness 147 liability of, for advice 315 lien of, on papers or funds '''■' Special conditions on railway ticket, liability of passengers 302 damage, defamation 418 damage : sec Nuisance '■'•' jurors, ten jurors may give verdict or answer questions.. 140 jury, how obtained 1-" property, see Conversion of goods 4;j3 verdict, duty of jury to find 185, ISO juries, costs of 1- ' jury, when application for, to be made 126 Specific performance, requisites for 212 when may not be decreed -1° trade mark "*** Specialties, actions on 4 Squatters, acquisition of title by -'•" Standing timber witbin registry laws 579 " State of nature " explained ■'•''•' Statute, evidence of '•'"> 98 construction of, not to be aided by language used by 25 590 officials repugnancy of Statute of Frauds 201. 248, 270, 531, 537 contract under may be orally discharged 590 a defence in action for damages for conversion of goods.. 456 how far available as a defence where foreign law con- cerned 04, 535 in actions relating to land -" , ' in action for deceit in contract for sale of land :; '"• parol evidence to prove identification under 25, 203 written recognition by agent of oral contract, effect of. 3A action for goods sold and delivered '••' partial performance enforced -'" writing of purchaser's name by agent, effect of 203 Statutes of Limitations, as applied to ways •"' , '''• defence of j'[ foreign, no bar in an action here '3 in case of fraudulent misrepresentation ••'•"' Statutory covenants, in lease, construction of ,v ' k.i . -4'2~ Testimony at former trial, admission of Timber floating down streams -"'7-1 sale of: see Standing Timber 579 how far cutting is waste 219, 220 . essence of contract, effecl of delay I s ' 1 Time of essence of the contract 208, 209, 281 Time immemorial, not existent in Ontario Title to goods, no implied warranty 253 Title to land, covenant for 216, 482, 495 Tombstone, action for Total loss within marine policy explained 233 Trade custom, evidence of, requisites for r>96 interest recoverable under 195 Trade fixtures, put in by mortgagor, ownership of 506 Trade mark, infringement of 384 Trade on premises, covenant as to 492 Trade union, liability of Transference of cases from inferior to superior Courts 11~> Treating jury 1 v I Trees overhanging a nuisance Trespass to land, action for 4">>i Trespass, action for, pasturing not sufficient 451 to personal property, action for Trespasser injured through negligence, right of : '-" s Traveller, authority of to sicrn contracts 277 Travelling expenses of witnesses I Trial at bar, how obtained 119 Trial, evidence at to be viva voce 129 Trial of cases, .1 udge's power as to arranging Ill Trial, postponement of 142 Trials, sittings for. how fixed 110 Trust, declaration of, effect of 599 Trust property, purchase of by assignee 407 Trustee, Legal estate vested in 176 Tug and tow. Liability for collision 320 Turkey-cock, liability of owner of Uberrima fidei, life insurance contract 239 Unascertained goods, sale of, when pro '- , -' 664 INDEX. PAGE. Undisclosed principal, liability of 277, 278 Undue influence, actions to impeach conveyance on ground of, burden of proof in 13 defence of 599 Unearned profits not within action respecting assignment 406 Unfurnished house, liability of landlord 494 Unlawful taking of goods, effect of 454 Unity of ownership, extinguishment 365 Unnavigable water, property in 377 Unseaworthiness, presumption of 33 Usage : see Trade Custom 596 Use and occupation, action for 216 Use of land, negligent 32, 65 " Usual covenants," meaning of 482 Valued policy, what recoverable on 231 Vendee, action by against vendor 213 Vendor, action by against vendee 201 Vendor and purchaser, Act respecting 207 Vendors' lien, wmen it arises on land 212 Veracity of witness may be impugned 166 Verdict, amendment of 187 alteration of 187 Court may direct special verdict except in libel 185 rider to 188 Vessel, owner, liability for incompetent sailors 321 Vexatious actions, Act to protect justices of the peace 442, 445 View by jurors, Court may order 183 1 'is major, defence of 361 Volenti non fit injuria, where maxim applies 309 doctiine considered 330 Voluntary conveyance, action to set aside, burden of proof in.. 14 of land when void 409 action to set aside : see Action for Fraudulent Preference. 39S Voluntary deed when not reformed 480, 570 Volunteer, Court will not order execution in favour of 570 Wagering policy void 239 Wages, action for 265 of infant 267 justification for dismissal 269 Waggon, on highway, liability for 311 Waiver by counsel, effect of 179 of irregularities in regard to jury 186 of jury notice 140 of objections, effect of 154 War, existence of, does not require proof 88 Warranted article, remedy for breach of warranty 255 I.NKKX. PAGE. Warranties, Implied in marine policy u.'io Warranty, action on of authority 257 of quality 253 i>f title i if goods 253 sale of poods with 282 breach <>f. measure of damages 284 latent defect, effect of, on 256 principles applicable in determining effect of 254 rights <>f purchaser to sue on 254, 17 f Warehouseman, liability of railway company 301 must have reasonable buildings 316 negligence of Add. xix. " Warehouse receipt," definition 46S Waste, action for 2 1 B tenant for years liable for 22] may be maintained during currency of a lease 221 Water course, disturbance of 370 Water lot, passage over .".77 Way, disturbance of 363 right of, what necessary to constitute user 365 Weights and measures, Act respecting 274 Weight, sale by L'7<» Widow, cutting of timber by 22 rights of under Devolution of Estates Act 525 Wife, admissions of, when binding on husband 4." authority to bind husband L!7'> separate property, defence of 565 interest of, in husband's life policy 239 Wild lands, trespass on 451, 560 Will, action to set aside .. 600 Wills of land, how proved 104 proof where filed in other British possessions li» ( I when presumed to be duly executed 105 action to annul, burden of proof in 12 t itle under 178 Withdrawal of evidence, when allowed 172 of record, when permitted 148 Withdrawal from trial, rules as to 1 19, 120 juror, effect of 1 B8 Withholding books, effect of 2T evidence, effect of '-'<^ " Without prejudice," effect of 1 Witness, calling of, to prove deed 82 competency of discussed 148 deceased, how <\ idence may be proved IS 666 INDEX. PAGE. Witness left province, evidence of, how provable 54 in custody, how attendance can be obtained 135, 137 in prison, previous evidence of 137 served with subpoena, must attend till case comes on .... 130 signing, how far held to be proof of knowledge 42 subpoenaed to produce, liability of 136 to signature, need not be called, when 84 attendance of, how enforced 130 attendance in more than one case, fees to 131 corroboration of, when required 151 disqualification of 145 travelling expenses of 135 Wives and children, insurance for 23a Work and labour, action for, defence of illegality 541 action for mariners' wages Addenda. refusal to produce agreement, effect of ] 42 See Action for Wages 265 Work and materials, action for 284 Workman's lien 468, 472 Workmen's compensation for injuries 328, 330, 331 Writs, how proved 107 Writ of execution, effect of as evidence 107 Written agreement, how evidence of may be obtained 16 contract, action on, burden of proof in 12 document, when oral proof may be given 153 instrument, admission of contents of, how far evidence. .16, 42 instruments, copies of, admissible as evidence, when .... 107 Written statement, formerly made by witness, question as to . . . 157 Wrong-doers, contribution between 594 Wrongful act, default or neglect causing death 353 dismissal, action for 265 dismissal, action for, burden of proof in 12 distress, action for 424 sale of goods a conversion 453 taking of goods 275, 453 Wrongs independent of contract, actions on 306 field up possession, covenant to 497 UC SOUTHERN REGIONAL LIBRAE i II I I II I AA 000 761 589