dinrmii IGam f>rl|0ol ICihtary KEOl42.R6ri88T"'''''''-'''''''^ Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924016956520 A DIGEST THE EEPOETED CASES DETERMINED IN %\t ^tt^erior Courts of Sntaric, CONTAINED IN VOLUMES 45^6 QUEEN'S BENCH. 27-29 CHANCERY. 1-4 ONTARIO REPORTS. 31-32 COMMON PLEAS. 5-8 APPEAL REPORTS. 8-9 PRACTICE REPORTS. 3-7 SUPREME COURT REPORTS. 1 HODGINS'S ELECTION CASES. (BEING A CONTINUATION OF ROBINSON & JOSEPH'S DIGEST) A TABLE OF CASES AFFIRMED, REVERSED, OR SPECIALLY CONSIDERED. r.v CHRISTOPHER ROBINSON, Esq., ONE OF HER iIaJBSTT'S COUNSEL, AND F. J. JOSEPH, Esq., or 0S600DE HALL, BARRISTER-AT-LAW. TORONTO : ROWSELL & HUTCHISON. 1884. 43 Entered according to the Act of the Parliament of Canada, in the year of onr Lord one thousand eight hundred and eighty-four, by The^LaWj^Societt of Upper Canada, in the office of the Minister of Agriculture. EOWSELLAND HUTCHISON, PRINTEES, TORONTO. muf MmiM m& %u&m SUPREME COURT OF THE DOMINION OF CANADA AND OF THE SUPERIOE COURTS OF THE PEOYINCE OF ONTARIO. SUPREME COURT AND EXCHEQUER COURT. CHIEF JUSTICE. Hon. Sir William Johnstone Ritchie, ^NT Appointed 11th of January, 1879. JUDGES. Hon. Samuel Henry Strong Appointed 8th of October, 1875. Hon. Telesphore FouENiER " 8th of October, 1875. Hon. William Alexander Henry " 8th of October, 1875. Hon. Henri Elzear Taschereau " 7th of October, 1878. Hon. John Wellington Gwynne " 14th of January, 1879. COURT OF APPEAL FOR ONTARIO (a). CHIEF JUSTICES (5). Hon. Thomas Moss Appointed 30th of November, 1877. Hon. John Godfrey Spragge " 2nd of May, 1881. JUDGES. Hon. George William Burton Appointed 30th of May, 1874. Hon. Christopher Salmon Patterson... " 6th of June, 1874. Hon. Joseph Curran Morrison " 30th of November, 1877. (o) The Court of Appeal, the Court of Queen's Bench, the Court of Chancery, and the Court of Common Pleas are, by 44 Vict. c. 5, s. 3, constituted one Supreme Court of Judicature for Ontario. (6) The Chief Justice of Appeal is styled " Chief Justice of Ontario." — 44 Vict. e. 5, li. 4. CHIEF JUSTICES AND JUDGES OF THE PBOVINCE OF ONTARIO. COURT OF QUEEN'S BENCH (a), And Queen's Bench Division of the High Cowrt of Justice; CHIEF JUSTICE. Hon. John Hawkins Hagarty Appointed 13th of Kovember, 1878- JUDGES. Hon. John Douglas Armouk Appointed 30th of November, 1877. Hon. Matthew Crooks Cameron " 15th of November, 1878. COURT OF COMMON PLEAS, Avid Common Pleas Division of the High Cowrt of Justice. CHIEF JUSTICE. Hon. Adam "Wilson (6) Appointed 13th of November, 1878. JUDGES. Hon. Thomas Galt Appointed 7th of June, 1869. Hon. Featherston Osler " 5th of March, 1879. COURT OF CHANCERY, And Chancery Division of the High Court of Justice. CHANCELLORS. Hon. John Godfrey Spragge Appointed 27th of December, 1869. Hon. John Alexander Boyd " 3rd of May, 1881. VICE-CHANCELLORS. Hon. Samuel Hume Blake Appointed 2nd of December, 1872. Hon. William Proudfoot " 30th of May, 1874. Hon. Thomas Ferguson " 24th of May, 1881. MARITIME COURT. JUDGES. Kenneth McKenzie, Q. C Appointed 12th of July, 1877. John Boyd " 28th of March, 1883. (a) The Courts of Queen's Bench, Chancery, and Common Pleas constitute the High Court of Justice for Ontario. — 44 Vict. c. 5, s. 3, sub-s. 2. (6) The Hon. Chief Justice Wilson was first appointed a Puisne Judge of the Court of Queen's Bench on 11th of May, 1863. The date of this appointment is omitted in R. & J. Dig., vol. i. MASTERS AND REFEREES— MINISTERS OF JUSTICE AND ATTORNEYS-GENERAL. ^^uUh m\& ^(UvH^. Robert Gladstone Dalton, Q. C. (a) ... A])poiiited Clerk of the Crown and Pleas of the Court of Queen's Bench, 21st of February, 1870; appointed Master-in- Cbambers, 23rd of August, 1881. Thomas Wakdlaw Taylor, Q. C Appointed Master-in-Ordinary, 16th of December, 1872. Richard Porter Stephens Appointed Referee-in-Ohambers, 1st of April, 1876. Thomas Hodgins, Q. C. (b) Appointed Master-in-Ordinary of the Su- preme Court of Judicature for Ontario, 10th of January, 1883. John Winchester Appointed Registrar of the Queen's Bench Division 28th of October, 1882, and Official Referee of the High Court, 22nd of Marcii, 1884. ^iuHUv^ of ^nUUi mA ^tUx\xs0-(^n\(vnl. DOMINION OF CANADA. Hon. James McDonald Appointed 17th of October, 1878. Hon. Gir Alexander Campbell, K.C.M.G. " 20th of May, 1881. ATTORNEY-GENERAL FOR ONTARIO. Hon. Oliver Mowat Appointed 31st of October, 1872. («) The Master-in-Chambers is an officer of the Supreme Court of Judicature for Ontario.- 44 Vict. c. 5, Rule 420. {h) The Master-in-Ordinary is an officer of the Supreme Court of Judicature for Ontario. 44 Vict. u. 5, ». 58, sub-s. 2. OF THE SUPREME COURT Of THE DOMINION OF CANADA AND OF THE SUPERIOR COURTS OF THE PROYINGE OF ONTARIO. EDITOR OF THE ONTARIO REPORTS. Christopher Robinson, Q. C Appointed 30tli of May, 1872. REPORTERS. SUPREME COURT OF CANADA. Robert Cassels, Je Appointed Registrar 8th of October, 1875. George Duval " 19th of January, 1876. Vols. 3 to 7, S. C. R. COURT OF APPEAL. James Stewart Tupper Appointed 27th of November, 1876. ' Vols. 5 and 6, A. R. Alexander Grant Appointed 11th of February, 1882. Vols. 7 and 8, A. R. COURT OF QUEEN'S BENCH AND QUEEN'S BENCJH DIVISION. Salter J. VanKoughnet, Q. C A])pointed 25th of June, 1878. Vols, 45-46, Q. B. and 1 to 4, O. R., Q. B. D. COURT OF COMMON PLEAS AND COMMON PLEAS DIVISION. George Frederick Harman Appointed 7th of December, 1872. Vols. 31-32, C. R and 1 to 4, O. R., C. P. D. COURT OF CHANCERY AND CHANCERY DIVISION. Alexander Grant Appointed 19th of June, 1845. Vol?. 27 to 29, Chy. Thomas Percival Galt " 17th of Pebi'uary, 1882. Vol. 1, O. R., Chy. D. Augustus Henry Feaser Leproy " 20th of May, 1882. Vols. 1 to 4, O. R., Chy. D. George Anthony Boomer.. " 8th of December, 1883. Vol. 4, 0. R,, Chy. D. PRACTICE REPORTS. William Egeeton Perdue Appointed 1st of March, 1879. Vol. 8, P. E, Thomas Taylor Rolph (a) " 1st of March, 1879. Vols 8 and 9, P. R. (a) Mr. Perdue resigned 15th of October, 1882, and Mr. Rolph was appointed Practice Reporter. Ti^BLE OF THE NAMES OF THE CASES CONTAINED IN THE DIGEST. COLUMN. A. B. & O. D., Attorneys, In re . . . . 46 A Solicitor, In re . . . . . . . . 40 Abell V. McLaren . . . . 78, 471, 612 Abrahams v. The Queen . . 49, 187, 188 Adams and the Township of East Whitby 258, 786, 788 Adamson t. Adamson 175, 236, 259, 396, 428, 762, 772, 773 V. BeU — West Toronto Election (Ont.)(2) .^tna Life Insurance Co. v. Brodie Agar V. Stokes. . Agnew V. Plunkett . . V. Ross Agricultural Investment Co. Bank . . Savings and Loan V. .. 557 . 254, 378, 453, 751 .. 411 . 39, 46, 163 45, 59 Federal . ..286 A S^'^PlfliTilOTl T. Federal Bank 68, 237, 286, 651, 695, 775 Aitcheson v. Mann 118, 162, 587, 603, 709, 819 Aitken v. Wilson 629, 639 Albemarle, and Eastnor, In re 18, 494, 495 (Township of) and United Town- ships of Eastnor, Lindsay and St. Edmunds.. . . ■- .. .. 494,495 Albert Cheese Co. v. Leeming 127, 148, 646 Alexander v. Diamond . . . . . . 248 Allan, Be— Pocock v. Allan 272, 273, 657,a708, 710 and The Township of Amabel, In re 25 V. McTavish Allen V. Mathers Almon V. Lewin Amer v. Rogers An Attorney, In re 252, 296, 395 . . 634, 766 ..809 207, 621, 760 . . 40, 635 Ancaster (Township of) v. Durrand . . 793 Anderson v. Bell . . . . 797, 804, 812 V. Striker — Prince Edward Elec- tion (Ont.) .. 550,564,569 V. Worters 109 Andrew v. Stuart 297, 502 Anglo-Canadian Mortgage Co. v. Cotter . . 230 Archer v. Severn . . . . . . . . 809 Arkell v. Geiger 157, 390 Armstrong v. Crooks — West Toronto Elec- tion (Ont.) 528, 530, 535, 537, 542, 551, 552, 553, 572, 576 Amoldi V. O'Donohoe . . . . 43, 45 Amott, Be— Chatterton v. Chatterton 578, 708 Artley v. Curry 752 Attorney, In re 40, 635 Attorney-General v. International Bridge Co. 49, 342, 343, 622, 624, 742, 887 V. Midland B. W. Co., 158, 193, 423, 610, 670, 672, 709 COLUMN. Attorney-General of Canada ex rel. Barrett V. The International Bridge Co 180 of Ontario v. Mercer . . 121, 233, 819 V. O'ReiUy . . 49, 180, 233 Atlantic and Pacific Telegraph Co. v. Domi- nion Telegraph Co 622, 625 Austin V. Davis . . . . 172, 180, 198, 753 Aylesworth v. White — East Hastings Elec- tion (Dom.) 526 B Backus V. Smith 416, 437 Badenach v. Slater . . . . . . . . 299 Baillie v. Dickson . . 74, 77, 237, 240, 505 Baker v. Morgan— Russell Election (Ont. ) (2) 526, 528, 57S Ballagh v. Royal Mutual Ins. Co. . . 365, 374 Bank of British North America v. Eddy, 246, 399, 707 of Hamilton v. Blakeslee of Montreal v. Foulds . . V. Gilchrist . . 585, 630 .. 636 169, 414 V. Haffner 148, 396, 418, 604 of Nova Scotia v. La Roche 153, 154, 155, 393, 709, 710 of Ottawa V. McLaughlin 74, 215, 219, 710 V. McMorrow . . 74, 258 of Rochester v. Stonehouse . . . . 30O — — of Toronto v. Beaver and Toronto Mu- tual Ins. Co . . 373, 819 V. Irwin , ,204, 293, 461, 777 Banks v. Bellamy 226, 61S Bannerman v. McDougall — South Renfrew Election (Dom.) . . . . 570, 571, 573 Barber v. Morton . . . . . . 82, 653 V. Russell 393 Barker v. Furze . . . . 710, 765, 818 V. Leeson .. 91,170,171,388,766 Barnett v. Union Mutual Fire Ins. Co. 368, 709 Barr v. Doan 289 Barrett, an Insolvent, Re . . . . . . 90 Barrie Gas Co. v. Sullivan . . . . 196, 822 Bartlett v. Jull 467 Bates V. Mackey . . . . 636, 705, 706 Batt Re— Wright v. White . . . . . . 275 Beamish v. Kaulback . . . . . . . . 747 Beatty v. Currie— Welland Election (Ont.) 529, 546, 566 Beaty, an Insolvent, Re . . . . 59 V. Bryce V. Cromwell • V. Samuel Beaver v. Boardraan Beavis v. Maguire 157, 389, 708 ..398 55, 59, 67, 91 ..633 . . 295, 304 TABLE OF CASES. Beaumont v. Cramp Beckett v. Johnston Beemer v. Oliver Beilatein v. Beilatein Bell and Black, Ke V. Irish . . V. Landon V. Lee V. MoDougall Riddell COLUMN. 88 " '.'.29, 31, 510 239 223 201,728, 820 211 155, 161, 162 , . 795, 813 55 81,113,323 Bellechasse Election (Dom.)— Larue v. Des- lauriers 539,556,576,748 Bender, Re 332,817 Bennett v. Grand Tmnk K. W. Oo. 496, 502, 679, 680 Benninger v. Thrasher . . 65, 101, 728, 819 Bergin v. Maodonald — Cornwall Election (Dom.) 514, 526, 529, 531, 532, 535, 537, 541, 547, 573 Cornwall Election (Dom.) (2) 515,544 Berkeley's Trusts, Be 770 Bernard v. CoutelUer . . . . 500, 503, 504 Berry v. Zeiss . . . . . . . . • • 323 Bethune v. Colquhoun — Stormont Election (Ont.) 515, 516, 521, 523, 524, 525, 523, 566, 570 Biggar v. Biggar . . . . . . 7, 578 V. Way 471,643 Billington v. Provincial Ins. Oo. of Canada 354, 359 Birdsall and the Township of Asphodel, In re 509,788 Birkett v. MoGuire . . . .581, 584, 588, 654 Bissett V. Strachin . . . . . . . . 162 Black V. Plumb — Niagara Election (Dom.) 535, 543, 573 V. Strickland . . Blain v. Blain . . Blake v. Kirkpatrick . . Bland v. Andrews V. Eaton 68, 80 .. 632 13, 128, 449 .. 218 . 292, 407 . 157, 585 .. 46 151, 270 Blaney v. McGrath . , Bleeker and Henderson, In re Bloomfield v. Brooke . . Blue V. Arkell— East Elgin Election (Dom. ) 548, 574 Board of Education of Morrisburg v. The Township of Winchester 664. 665 of Napanee v. The Town of Napanee, Re 444, 662 Boardman v. Scott— North Grey Election (Ont.) .. .. 531,534,550,559,561 Booth V. Mclntyre . . 121, 195, 196, 669, 692 V. Prittie 128, 448 Boswellv. Sutherland.. 130, 179, 280, 611, 616 Bothwell Election (Dom. ) — Hawkins v. Smith 521, 527, 528 In re . . 37, 567 Boulton V. Rowland . . . . . . . . 475 Boustead v. Shaw Bowes, In re . . Boyd V. Glags . . V. McNutt Boys' Home of the City of Hamilton v. Lewis Bradley v. Clarke Branneu v. Jarvis Brayley v. EUis Briggs V. Lee . . Bright T. McMurray . . 62, 302, 303 . . 59 ..297 . . 8, 709, 710 268, 270, 796, 807 248, 706, 709 . . 614, 732 57, 300 419 235, 426 Brock V. City of Toronto, In re 490, 745, 760, 785 COLTTMir. Brockville Election (Ont.)-Mnt v Fit^- simmons 516, 521, 522, 525, 526, 535, MO 5o7, 574 Brodrecht v. Fick . . • • ^ ■ • ■■'^J Bronson and the City of Ottawa, In re . . 486, o71) oyz, olo Brown v. Brown . . • • 577, 580, 708 — V. County of York . . • ■ bl.i, bl4 V. Sweet . . 41, 48, 93, 110, 301, 509 Browne v. Pinsoneault . . • ■ • • 410 Bruce, County of v. McLay 698 Brussels, Village of v. Ronald 285, 477, 487, 591 Bryan v. Mitchell . . . • • • 231, 398 Buohner V. Ourrie—Welland Election (Ont.) (2) . . 533, 535, 544, 547, 553, 560, 561, 572 Bucke V. Murray . . . . 633, 708, 709 Building and Loan Association v. Oarswell 471 Buist v. MoCombe . . . . . . . . 213 Biillivant, an Insolvent, Re . . . . . . 64 Bunting v. Laidlaw . . . . ■ . . . 687 Buidett, a Solicitor . . . . 44, 216, 391 Burke V. Taylor 259,282 Burn V. Giflford 734,771 Barnett v. Union Mutual Pire Ins. Oo. 3S8, 711 Burnh^m v. G i.rvey . . . . 8, 163, 421, 436 V. Kerr — West Northumberland Election (Dom.) 570, 571, 573 Burritt v. Burritt . . 391, 772, 807 V. Murdock 392,709 Burrows v. Leavens . . . . . . . . 288 Bussell V. Barber— Halton Election (Ont.) U, 519, 536, 539, 550, 553, 576 Butler V. Rosenfeldt . . . . 8, 20, 21, 101 V. Staniltrd Fire Ins. Oo 643 Butterfield v. Wells 42, 59, 773 C. Cildwell, V. McLaren CiUaghan, Re . . Calverb v. Black ^ V. Burnham ..783 453, 667, 7»7 . . 222. 778 625, 722, 743 Cameron v. Campbell . 439, 772, 811, 817 V. Clucas . . . . 454, 527, 591 V. McDougall — North Middlesex Election (Ont.) 542, 543, 546, 547, 550 — ——Re 338 Re, Infants 590,710 — V. Leroux . . . . . . . . 580 V. Maclennan — North Victoria Election (Dom.) 184, 220, 514, 517, 528, 529, 536, 537, 541, 551, 564, 565, 574, 575 North Victoria Election (Dom.) (2) 184, 518, 520, 521, 532, 548, 574, 671 V. Wellington, Grey and Bruce R. W. Co. 204, 254, 622, 674, 740, 741, 743 Gampan v. Lucas . . . . . . 706, 708 Campbell v. CimpbeU 305, 579, 618, 620, 640 V. MoDougaU 158 V. Prince 171, 172, 177, 504, 506, 510 • V. Robinson . . . . 460, 652 V. Victoria Mutual Fire Ins. Co. 362, 819 Campion v. Brackeuridge . . 50, 469, 618, 726 Canada Atlantic R. W. Oo. and the Town- ship of Cambridge, In re . . 689 Central R. W. Co. v. McLaren 12, 250, 256, 259, 400 V. Murray . . 659 TABLE OF CASES. COLUMN. Canada Fire and Marine Ina. Co. v. Western Assurance Co. . . , . . . 383 Landed Credit Co. v. Thompson 507, 775 Permanent Loan and Savings Co. v. McKay 430, 701 ' V Foley . . 230 ■ Taylor 194, 204, 308 Southern R. W. Co. v. International Bridge Co. . . 71, 387, 639, 793 Canadian Bank of Commerce v. Crouch 33, 35, 48, 339 V. Green 76, 78, 653 V. Tasker . . 389 V. Woodward 80 Securities Co. v. Prentice 79, 82, 608 Canavan v. Meek . . . . . . . . 721 Cannon v. Toronto Corn Exchange 20, 146, 509 Card well Election (Ont.)— O'Callaghan v. Flesher . . 530 (Dom.) — Hewitt v. Cam- eron . . . . 514 Carleton Election (Ont.) — Lyon v. Monk 540 569 Carlisle V. Tait 85,88,91 Carmichael v. Ferris 232, 725 — — V. Sharp 164, 584 Carroll v. Fitzgerald . . . . 4, 320, 327, 438 V. Wmiams 406, 740, 741 Carter v. Hatch . . 391, 497, 614, 649 Cartwright v. Hinds 101, 221 Cascaden v. Munroe — West Elgin Election (Ont.) 528,566,577 Casey v. Ferris — East Northumberland Elec- tion (Ont.) 534,555 Caswell V. Murray . . . . . . 5, 154, 155 Caughill T. Clarke . . . . 74, 259, 611, 745 Centre Wellington Election (Dom.)— Iron- side V. Orton . . . . 545, 560, 562 Chadbourue v. Chadboume . . . . 804 Chamberlain v. Armstrong ..392, 394, 472, 709 V. Clark ' . . 427 — V. Sovais. . . .460, 469, 470, 657 V. Turner . . . . . . 25 >-^ — and the United Counties of Stormont, Duadas, and Glengarry 635, 663 Chamberlen v. Clark . . . . 271, 317, 417 Chapman V. Larin .. .. .. ..712, V. Smith .. .. 633,765,819 Charles, Re— Fulton v. Whatmouth . . 803 Charlevoix Election (Dom.) — Cimon v. Per- rault . . . . . . . . . . 535 Charlton v. Watson .. ..30, 31, 604, 72} Chevalier V. Cuvillier. , .. . .. 748 Chevrier v. The Qaeen 193, 204, 423, 597, 600 Clarke v. Creighton . . V. Farrell V. Macdonald . . V. McEwiug . . V. White COLUMKr. ..322 . . 388, 732 218, 219, 316 607, 612, 709 . . 756, 818 Olarkson v. White 57, 58, 612 Cleaver v. North of Scotland Canadian Mort- gage Co 149, 192, 242, 739, 740 Clemow V. Booth . . . . 157, 451, 476, 720 Olenoh v. Consolidated Bank of Canada 69, 772 Clouse V. Canada Southern R. W. Co. 346, 674 Clow V. Clow 788, 799 Cochrane v. BouchSr . . . . 93, 111, 121, 657 Colbert v. Hicks 442, 616 Cole V. Campbell . . . 221, 389, 499 CoUard v. Bennett 302 CoUiar v. McOallum — Monck Election (Ont ) 516, 540, 565, 572 Collver V. Swayzie . . . . 275, 641. 707 Colthard, Re 228, 338, 441 Oolton, Re— Fisher v. Colton 271, 272, 275, 657 Compton V. Mercantile Ins. Co. . . 354, 357 Connecticut Mutual Life Ins. Co. of Hart- ford V. Moore . . . . 505, 507, 658, 749 Connolly v. O'Reilly 175 Cook V. Broder — Dundas Election (Ont.) ..114^ 539, 544, 547, 549 V. Credit Valley R. W. Co . . 349, 728 V. Grant 262, 437, 503, 504, 505, 710. 772 Cooper V. Blacklock . . . . 77, 324, 647 V. Central Ontario R. W. Co. V. Hamilton . . V. Kirkpatriok 603 .. 424 56, 74? 112, 651 .. 207 .. 88 Corby v. Williams Corcoran v. Robb Corneill v. Abell Cornwall Election (Dom.)-- rBergin v. Mac- donald 514, 526, 529, 531, 532, 535, 537, 541, 573 (Dom.) (2) — Bergin v. Macdonald . . 515, 544 (Dom.) (3) — Maoleunan v. Bergin 244, 531, 541,564, 565, 570, 574 ■ ■ (Ont. )— Snetzinger v. Christie v. Conway ..157,390,631,710 ■ V. Stock — North Wentworth Elec- tion (Ont.) . . . . 533, 559, 550, 561, 562 Christopher v. Noxon 138, 140, 141, 143, 14S, 150, 239, 254, 603 Church V. Fenton 28, 30 v. Fuller 741 Cimon v. Perrault — Charlevoix Election (Dom.) 535 Citizens' Ins. Co. v. Parsons 11, 115, 116, 175, 354, 363, 386, 589, 658,. 749 City Light and Heating Co. v. Macfie 150, 620, 622, 623 Clark v. Bogert 182, 447, 466, 700, 720, 721 V. Clark 578, 580, 708 V. Creighton 158, 163 V. Scottish Imperial Ins. Co. .. 355, 381 Clarke, Re 46 V. Barron 171, 508 Molntyre Cosgrive v, Boyle Cot? V. Morgan V. Staiaooni Ins. Co. Ciitton V. Mitchell . . Coulson V. Spiers 540, 569 . . 76 11, 31, 493, 6.59 . . 135, 239 . . 438, 534 170, .388, 710 Court V. Holland 6, 58, 243 291, 453, 4>), 464, 474, 477, 632, 731, 819 Ex parte Dorm .. 257,474 Holland and W ilsh 242, 253, 237, 474 126, 397, 630, 6So, 819 426 . . 108, 655 290, 412, 413 591 79, 314 . . 4tO, 709 .. 56, 507, 616, 777 44, 468 . . 10, 213, 38 >, 439 265, 460, 469 44, 463, 476 V. Scott . . V. Walsh . . Cowan V. Doolittle . Cowling V. Dickson . Craig V. Dillon. . Cr ithern v. Bell Crawford v. Crawford Creighton v. Ohittlck. Crerar and Muir, Re . Crone v. Crone . . Orona v. Chamberlin. Oronyn, Kew and Bstts, Re . . Cross McOraney — H ilton Election (Dom.) 531, 536, 543, 544, 552, 567 v. Currie 73,81 Crowe V. Steeper . . 98, 213, 279, 434, 492 Crowtherv. Cawbhra.. .. 208,213,820 TABLE OF CASES. CruBO V. Bond . . V. Close Cruickshank v, Corbey Culverwell v. Campton Cumming v. Low Ciimmings, Re . . Cunninghan v. Canada Southern E, COLUMN. . . 232, 472 471, 474, 708 .. 14 646, 731 .. 13 666, 667 W. Co. 175 177, 731 589 Currie v. Currie Curry, Ee— Wright v. Currie ; Curry v. Curry 270,589,631,642 D. 164, 639 249 737 511,715 11, 119,262, 446, 747, 718 245, 707, 778 303 Dalby v. BeU . . Dalev. Hall .. Dancey v. Bums Danford v. Danford Danjou v. Marquis Darling v. Darling V. Price Davidson v. BeUeville and North Hastings E. W. Co. ■ V. Cameron . . - V. Maguire .. V. Oliver V. Papps Davies v. Funston Davis, Ee V. Dennison V. Murray V. Wiekson ..168,396, 577, 766 156, 168, 397 62, 297, 302 271, 804, 811 58, 584 253, 313, 819 470, 509, 700 . . 226, 727 ..602 85, 248, 294, 709 ..810 .. 632,710 158, 170, 445 Day V. Harris . . Dayer v. Eobertson Dean v. Chamberlain, In re . Decow v. Wallace — South Norfolk Election (Dom) 532,546,554,567 Defoe. Ee 243, 425, 817 Denmark v. Mc Conaghy . . 208, 247, 416 Devanney V. Brownlee .. .. 81,654 V. Dorr 16, 26 Devitt, Ee 590, 631 Devlin v. Queen Ins. Co. . . . . 363, 366 Dewar v. Mallory 282 Dewe V. Waterbury . . . . 206, 258, 510 Dickson V. McMurray . . . . 141, 2{i9 V. C arnegie . . . . . . . . 782 V. Hunter 283, 346 Dilke V. Douglas 459, 700 Direct Cable Co. v. Dominion Telegraph Co. 209, 622 . United States Cable Co. (Limited) V. The Dominion Telegraph Co. of Canada 14, 15, 17, 126, 180, 285, 619, 624 Dixon -v. Cross 414,509,788 Dobell V. Ontario Bank 70, 149, 313, 647, 758 Dobson V. Marshall . . . . . . . . 629 Dockstader v. Phipps 231, 608 Dodge V. Clapp 579 iJominion, &c. Co. v. Stinson . . 162, 246 . Loan and Savings Society v. Dar- ling 157, 204 Type Founding Co. v. Nagle . . 733 Donovan, Be— Wilson v. Beatty 45, 275, 396 V. Herbert . , . . 422, 432, 762 Dorlaiidv. McCuaig — Prince Edward Elec- tion (Out.) (2) 516 Doubledee v. Credit Valley R. W. Co. 156, 169 Douglas V. Fox 502,762,793 V. Grand Trunk E. W. Co. 678, 681 Dovey v. Irwin . . . . . . . . 242 Downey v. ParneU, 462 COLUMN. Doyle V. Bell US. 527 V. Owen Sound Printing Co 207 Draggon, Ite— Abel v. Draggon— Draggon V. Draggon . . . • • ■ 272 Drew v. The Township of East Whitby 450, 497 Drinkwater v. Clarridge, In re . . 215, 219 Dnscoll V. Green . . . . • ■ . . 85 Dryden v. Woods . . • . ■ ■ 801 Duoondu V. Dupuy . . • . 183, 758, 780 Duff V. Canadian Mutual Fire Ins. Co. 47, 108, 180, 373, 374, 625 Dufferin Election (Ont. )--Sleightholm v. Barr 555,564,567,569 Dumble v. Cobourg and Peterborough B. W. Co 404, 503, 6.38, 673 v. Dnmble . . . . 797, 799, 805 V. Larush 43.3, 626 Dunbar v. Meek . . 251, 605, 719 Dundas Election (Ont.) — Cook v. Broder . . 114, 539 544 547 549 , Town of v. Gilmour. . 395,' 605! 709! 765 Dunham, Ee 433, 666, 667, 817 Dunlop V. Canada Central R.W. Co. 338, 670, 675 Dunnard v. McLeod 642, 708 Dunsford Re — Dunsford v. Dunsford 247, 710 E. Earls V. McAlpine 813, 817 East Elgin Election (Dom.) — Blue v. Arkell548, 574 Hastings Election (Dom.) — Aylesworth V. White 525 NorthumberlandElection(Ont.) — Casey v. Ferris . . 534, 555 Election (Dom.)— Gib- son V. Biggar 532, 566, 573 Peterborough Election (Ont.) — Stratton V. O'SuUivan . . .528, 5,30, 549, 560 Toronto Election (Ont.) — Rennick v. Cameron 535, 536, 542, 547, 552, 555, 572 Eaton, Ee — Byers v. Woodburn .. .. 640 Edgar v. Magee ' 78, 438 v. Northern R. W. Co. . . 496, 618 Edwards v. Cook — North Simooe Election (Dom.) 106, 517, 562, 564, 569, 570, V. Morrison V. Pearson . . Egleston v. Taylor, Ee Elliot V. Capell Elliott V. Brown V. Gardner 574 237, 296, 467 809, 811 . , 15 7, 32, 35, 395 ..321 ..637 Ellis V. Eraser — South Grenville Election (Ont.) 253, 516, 517, 524, 525, 528, 773 V. Midland E. W. Co. 127, 130, 149, 176, 177, 280, 448, 735 Emerson v. Niagara Navigation Co. 22, 103, 450, 651, 703, 735 Emmens v. Middlemiss . . . . . . 250 Emmett v. Quinn . . . . 203, 407, 408 Empey v. Kerr — Stormont Election (Ont. (2) 562 English v. MulhoUand, In re . . 215 and Scottish Investment Co. v. Gray 474 Erb v. Great Western E. W. Go. 650, 684, 685 Essery v. Court Pride of the Dominion 6, 20, 147, 309 Evans v. Sutton, In re . . . . 219, 778 V. Watt 728 Exchange Bank v. Barnes 5, 240, 623, 652, 655 ■ V. Newell . . 47, 708, 710 TABLE OF OASES. XI. COLUMN. Exchange Bank v. Springer , . 5, 240, 623, 642, 652, 656 V. Stinson 108, 503, 608, 709, 713 F. FalMner v. Grand Junction E. W. Co. 43, 142, 145, 147, 686 Farewell v. Brown — South Ontario Election (Ont.) 176, 532, 534, 558, 560, 566, 575 Fargey v. Grand Junction E. W. Co. 674, 690 FarUuger v. McDonald . . . . 84, 85, 89 Farmer v. Hamilton Tribune Printing Co . . 206 195, 231 319 773 427,' 470, 606, 708', 709 .. 333,386 219 49, 343, V. Livingston . Farrell v. Cameron Faulds T. Harper Fawcettv. Burwell Fee V. McIUiargey Fenelon Falls v. Victoria R. W. Co. 493, 676, 762 Fenton and The Board of Audit of the County of York, In re 48, 50, 165, 192, 446 Fenwick v. Donohue . . . . 394, 400, 764 Ferguson, Re 337 V. English and Scottish Invest- ment Co 475, 745 V. Ferguson. . . . 160, 435, 772 V. Freeman 29, 30, 201, 255, 453, 819 V. Veitch 502, 728 Ferris v. Ferris 6, 330, 604 Finn v. Dominion Savings and Investment Society 341, 650 Fire Ins. ' Association (Limited) v. Canada Fire and Marine Ins. Co. 239, 375, 367 Fisher v. Anderson . . . . . . 101, 817 v. Graham . . . . . . . . 318 Fisken V. Chamberlain .. .. 248,710 V. Ince . . 727 V. O'Neill . . : . . . . 59 Fitch V. McRae— In re Welland Canal En- largement 113, 232, 414, 793 Flake V. Clapp 400 Flanders V. D'Evelyn 285,337 Fleming v. HaU 733 V. McDougall . . . .474, 725, 726, 797 v. McNabb Fleury, Re — Fleury v. Fleury V. Copland Fletcher, Re and Noble, Re V. Noble V. Rodden Flint V. Fitzsimmona — Brockville Election (Ont.) 516, 521, 522, 525, 526, 535, 540 557 and JeUett, In re . . 41, 46, 159^ 229 Foley V. Canada Permanent Loan & Savings , 25, 31, 649 .. 580 714, 819 .. 41 .. 154 .. 165 .. 426 4, 335, 405, 456 202, 237, 330, 334, 769 121, 196, 693, 761 419, 773, 822 330 65, 318 . . 37, 91, 693, 708 238, 661 ..394,589,608,710 220 226, 227, 434, 463, 465, 726 291 203 Frazer v. Gore District Mutual Fire Ins. Co. 353, 354, 648 Co. Foott V. Rice . . Foran v. Mclntyre . Forhan v. Lalonde Forrester v. Forrester V. Thrasher Foster v. Morden V. Stokes Francis v. Francis Franklin, Re . . Fraser v. Gunn V. McLean - V. Pouliot COLUMN"^ Frederictou, The Mayor, &c., of v. The Queen .. .. .. .. ,,119 Freed v. Orr 47, 160, 173, 174, 178, 265, 27 L Freehold Loan and Savings Society v. Far- rell 95,111 Friendly v. Carter 629, 764 I ryer v. Shields . . . . . . 64, 449 Fuller v. McLean . . . . 640, 708, 774 Fulton v. Upper Canada Furniture Co. . . 126 V. Whatmough— Re Charles . . 803 Furlong v. Carroll 281, 400 Fox v. Toronto audNipissing R.W. Co. 691, 694 G. G- ■V. R- Gagnon v. Prince Gairdner v. Gairdner. . Galbraith and Christie, In re V. Duncombe ..327 . . 2591^ .. 802 . . 64 . . 337, 652 Galerno and Township of Rochester — Grant V. McAlpine . . . . . . 220 Gallagher v. Glass . . . . . . . . 54 . V. Taylor .. .. .. 11,383 Gallerno and Township of Rochester, Re, 488, 818 Gauanoque, Village of v. Stunden 617, 653, 656 Gannon v. Gibb . , . . . . , , 13 Garbutt v. Hewson Re Woodhall . . 158 Garland, The, In re — Monaghan v. Horn 447, 498 Garson V. Garson .. .. .. 511,739 Gaughan v. Sharpe . . . . . . 273, 619 Gauthier v. Waterloo Mutual Ins. Co. . . 3o0 Gauthreaux's Bail, Re . . . . 695, 69S Georgian Bay Transportation Co. v. Fisher 114, 341, 734 Ghent v. McCoU 32, 35 Gibba V. Wheler — North Ontario Election (Dom.) . . 528, 533, 539, 544, 548, 552, 553, 554, 560 Gibson v. Biggar — East Northumberland Election (Dom.) . . 532, 5K6, 573- V. MicUand R. W. Co. 72, 498, 677, 681 Gilchrist, Re 336, 667 v. Wiley 33 Gildersleeve v. McDougall . . . . 5, 126 Giles V. Morrow . . 226, 227, 243, 710, 7U GUI V. Canada Fire and Marine Ina. Co. 355, 360, 818 Gillam v. Gillam 225, 451 Gillies V. McCouochie 806,815 Givins V. DarviU . . 775, 785, 807, 812, 813 Glass V. Glass 228, 231, 608 Glengarry Election (Out.) — Maolennan v. Craig . . 537, 546, 547, 548, 549, 571 Goderich v. Brodie . . . . . . . . 642 Godfrey v. Harrison . . . . . . . 326 Goff, Re 429 Golding v. Maokie 51, 707 Goldsmith v. Walton . . . . 587, 603, 709- GoodaU V. Smith 714, 778 Gooderham v. Toronto & Nipissing R. W. Co. 676,691,694 Gooding, an Insolvent, Re . . . . . . 64 Goodman v. Regina .. 187, 189, 191, 310, 332 Goodyear Rubber Co. v. Foster . . 715, 778- North York Election . 529, 535, 549, 556, 574 742 4,5, 708 774 . . 181, 399, 412, 819 Gorham v. Boultbee- (Ont.) Gough V. Bench v. Park Gowanv. Patou Gowanlock v. Mans :Xli. TABLE OF OASES. COLUMN. ■Graliain v. Patterson— West York Election (Ont.) 514, .W4 V. Stephens 742 Grand Junction R. W. Co. v. County of Peterborough, Re 22, 409, 689, 690 R. W. Co. V. Midland R. W. Co. 133, 202, 285, 453, 672 Trunk R. W. Co. of Canada v. The Credit VaUey R. W. Co. 194, 344, 510, 670, 762 R. W. Co. of Canada v. Fitz- gerald . . . . 254, 685 R. W. Co. V. Ontario & Quebec R. W. Co .. 174, 631, 634 R. W. Co. of Canada v. Toronto, Grey & Bruce R. W. Co. . . 687, 688, 743 •Grant, In re 266, 340, 441 V. Canada Life Assurance Co. . . 468 . V. Grant 272, 579 . V. Dunn 419 V, McAlpine 220, 731 . V. McCailum — Monok Election (Dom.) .. ,. 520, 521. 526 V. O'Hara 435 V. VauNorman . . . . . . 298 •Grass v. Austin 89, 192 Gravenhurst, Village of v. Township of Muskoka 479, 609 Great Western Advertising Co. v. Rainer, Re.. .. 160, 171,445 R. W. Co. V. Brown . . 679 R. W. Co. V. Lutz. 229, 432, 691 Green v. Hamilton Provident Loan Co. 95, 469, 819 V. Watson . . . . 181, 587, 780 •Greenshields v. Bradford . . 229, 428, 434 Greet v. Citizens Ins. Co . .108, 181, 352, 358, 360, 363, 372 V. Mercantile Ins. Co. . . . . 363 V. Royal Ins. Co. 108, 358, 360, 363, 372 Grierson v. ( 'orbett Griffin v. McKenzie V. Patterson Griffith V. Brown V. Griffith ■GriflSths v. Parry Groom v. Darlington . . Guelph C. Co. V. Whitehead ■Guest V. (Juest V. Hunter ■Gunn V. Cox . . V. Trust and Loan Co . ■•Gzowski V. Beaty H. 52 88, 93 235, 236, 264, 321, 322 . . 423, 433 803 63 . . 272, 708 . . 249, 588 221, 285, 327 312, 420, 822 251 '. 609, 619 467, 472, 473 ■Hagar v. Routhier — Prescott Election (Dom.) 518,520 Hagle V. Dalrymple, In re . . . . . . 214 Hale V. Kennedy . . . . . . . . 173 Halifax, City ot'v. Kenny . . . . 737, 820 HaU, In re 3, 8, 178, 179, 184, 185, 276, 315, 316, 395 Halleran v. Moon . . 128, 261, 740, 743, 796 Halton Election (Ont.) Bussell v. Barber 11, 519, 536, 5.39, 550, 553, 576 (Dom.) Cross V. McCraney 534, 536, 543, 544, 567 Hamilton v. Harrison. . . . 7, 84, 86, 89, 192 ■ V. Tweed . . 632 ■ Provident and Loan Society v. Cornell .. .. 271,291,774 COLUMlf. Hamilton, School Trustees of the Township ■ of V. Neil . . 243, 661, 662, 66 1, 665 Hanns v. Johnston . , . . 4, 5, 220, 759 Harding and Wren, Re .. ■• „„:■ „i° 1 V. Township of Cardiff 20, 232, 485, 486, 495, 671, 788 Hargr eaves v. Sinclair . . "on a la ka^ Harper v. Davies . . ■ ■ 1"'' ^48, 502 Harris v. Baiber— Halton Election (Ont.) 536, 576 V. Mudie 424, 431 Harrison v. Joseph . . . .387, 718, 724, 725 V. Pinkney 412 Harron v. Yeman . . . . • • • • 213 Harvey v. Grand Trunk R. W. Co. 103, 603, 683, 709 v. Great Western R. W. Go. 103, 683 v.l'earsall 226,227 Hastings, County of v. Ponton 124, 239. 698 Hately v. Merchants Despatch Co. 12, 84, 103, 124, 179, 180, 221, 506, 606, 711 Hathaway v. Doig 49, 154, 156, 173, 342, 347, 350, 622 Hawkins v. Mahaffy . . . .195, 228, 262, 782 V. Smith — Bothwell Election (Dom.) 521,527,528 Hay V. [ rake . . . . . . . . . . 733 V. McArthur 229, 474 Hayes v. Hayes . . . . 161, 640, 641, 771 Hayman v. Heward . . . . . . . . 5)2 Haynes v. Fisher . . . . . . .37 Haywood v. Hay . . . . . . 36, 703 Head v. Bowman . . . . . . 606, 709 Heaman v. Seale . . . . . . . . 307 Hedstrom v. Toronto Car Wheel Co. . , 713 Henderson v. Dickenson — Russell Election (Dom.), In re 315, 316, 563, 565, 569 V. Hall 634 — V. Spencer . . . . . 724, 776 Hendrie v. Beaty 349, 634 V. Grand Trunk R. W. Co. of Canada .. ..687, 688, 743, 820 V. Neelon . . . . . . . . 758 Henebery v. Turner . . . .251, 393, 398, 710 Henney v. Scott, In re . . . . . . 218 Herring v. W Uson 210, 415 Henrj v. Gilleece , . . . . . . . 812 Hessin v. Baine . . . . . . . . 324 Hewitt V. Cameron — Cardwell Election (Dom.) 514 Hewson, v. Macdonald 221, 632, 634, 703, 710 Heywood, Re 336, 338 V. Sievewright . . . . 272, 708 High School Board of High School District No. 4 of the U. C. of Stormont, Duudas and Glengarry, and the Mu- nicipal Corporation of the Township of Win- chester, In re . . 446, 453 of Stormont, &c., and Corporation of Williams- burg . . . . . . 9 of Stormont, &c. , and the Corporation of Win- chester, In re . . . . 9 Hilderbrom v. McDonald . . . . 249, 707 Hill, In re 66 v. Merchants and Manufacturers Ins. Co 373, 625, 694 Hillock V. Button . . . . 302, 319, 778 V. Sutton 288, 413 TABLE OF CASES. xiu. COLUMN. Hinton v. St. Lawrence & Ottawa E. W. Co. 677, 679, 680, 681 Hodge V. The Queen . . . . 120, 493, 819 Hodgins v. Johnston . . . . . . . 88 V. Ontario Loan & Debenture Co . 96 Hoorigan v. Drisooll . . . . . . . . 706 Holden v. Robertson — West Hastings Elec- tion (Ont. ) (2) . .. 541,555,560 Holland v. Wallace, In re . . . . . . 217 Holman V. Green .. .. .. 124,315 Holtby V. Wilkinson . . 453, 797, 799, 803, 805 Holway v. Holway 330 Hood V. Martin 392, 629 Hooker v. Morrison . . . . . . 427, 433 Hopkins, Re — Barnes v. Hopkins . . 222 V. Hopkins, 292, 436, 579, 703, 704, 816 V. Oliver— South Oxford Election (Ont. ) 38, 244, 253, 565, 570, 575, 755 V.Smith .. .. 156,631,709 Hopper V. Harrison 209, 273, 625, 640, 707 Horner v. Kerr . . . . 77, 320, 323 Horton, In re . . . . . . . . . 676 Houston, Re — Houston v. Houston . . 462, 474 Howarth v. Singer Manufacturing Co. . . 142 Howes V. Dominion Fire & Marine Ins. Co. 254, 361, 372 Howey V. Howey . . . . 329 Huggins V. Guelph Barrel Co. . . 577, 634 Hughes V. Field' 3 V. Hughes 273, 275, 429, 436, 621, 819 V. London Ass. Co. . . . . . 369 V. Eees 244, 632 Hunter v. Birney 396, 763 V. Carrick 157, 586 V. Lauder — South Grey Election (Ont.) 529, 535, 537, 542, 546, 555, 556, 561, 571, 576 V, Vanstone . . 171, 217, 396, 506 V. Wilcocksou . . . . . . 394 Hurst V. Chisholm— Peel Election (Ont.) 499, 565, 571, 575, 767 Hutton V. Federal Bank 69, 111, 386, 657, 744 Hyde v. Barton . . . . 163, 222, 725, 726 V. Casmea 398,615 Hynes v. Fisher . . . . 348, 390, 451 ■ MoCord and Jenkins Case 37, 350 V. Smith 418, 419 COLUMN. Jarmin v. Meredith — London Election (Out. ) 533, 537, 546, 547, 558 Jarrard, In re 186, 285- Jarvis v. Cook, In re. . . . 59, 421, 468, 770- Jefifrey v. Scott 798, 814 Jellett V. Anderson . . . . 199, 279, 280, 640 Jenkins v. Breckeu — Queen's Countv Elec- tion (Dom.) 520, 521, 527, 528, 56» V. Central Ontario R. W. Co. 1 70, 344, 345, 452. 673, 675 Jenks V. Doran 58, 78, 284 Jessup V. Grand Trunk E.W. Co. 181, 435, 508, 619, 674 5l9 266, 394 Johnson, In re . . — V. Bennett . . V. The Toronto, Grey, andBruce.R. W. Co., In re 687 Johnston v. Christie . . . . 259, 394, 762 V. Johnston 41, 239, 453, 471, 472, I. Idington v. Mickle, Re Imperial Bank v. Britton V. Dickey 39, 43, 46 392, 629 34, 35, 101, 165 Loan and Investment Co. v. O'Sul livau . . . . . . . 465 IngersoU Town of, and CarroU, In re 495, 790 Inglehart and Gagnier, Re . . . . 95, 776 Ingram v. Taylor 192, 320 International Bridge Co. v. Canada Southern R. W. Co . .71, 114, 6.39, 658, 708, 765, 818 Ironside v. Orton — Centre Wellington Elec- tion (Oom.) .. .. 545, .560, 562 Irwin V. Young 159, 287 Isbester v. The Queen . . 129, 595, 823 Jack V. Greig . . Jackson v. Cassidy . . V. Hammond . . James, Re V. Balfour 292, 511 34, 710 418, 473 81,441 .. 312 - V. Oliver Raid Jonas V. Gilbert Jones V. Canada Central R V. Dawson • V. Dunbar V. Gallon • V. Grand Trunk R. W. V. Jones . . V. The Queen Joseph V. Ha£fner 590' 230, 231, 430 466 . . 417, 491 W. Co. 116, 221, 692 235 . 470, 657 . . 248, 318 Co 682 808 .129, 594, 599, 823- . . 55, 71, 606 K. Kastner v. Beadle Kearney v. Kean Keef e v. Ward . . Keefer v. Merrill V, McKay 791 113, 269, 330 38, 631, 710 283 .579, 801, 802, 803 Keith V. Fenelon Falls Union School Section 652, 662 Kelsey v. Rogers . . . . . . 86, 714 Kempt v. Macauley . . . . 165, 476, 722 Kennedy v. Bateman . . . . . . 236, 423 ^ V. Pingle . . . . 273, 274, 817 Kerr, Akers & Bull, Re . . . . 40, 42, 257 Kerr v. Canadian Bank of Commerce 60, 298 Kiely v. Smyth Eilbourn v. Arnold Killins V. Killins King V. Duncan V. Farrell V. Hilton. . V. Moyer Kingsland, Re . 19, 238, 820 . . 43, 287, 476, 772 274 391 93, 300, 301, 307! 590 214 270 39, 46 473 Kingston Election (Dom.) — Stewart v. Mac- donald . . 536, 543, 546, 556, 561, 571 Kinloch v. Morton . . . . 263, 394, 710 Kinsey v. Roche 158, 215 Kirkpatrick, Re — Kirkpatrick v. Stevenson 438, 772 Etching V. Hicks 604, 709 Klein v. Union Fire Ins. Co. 3S4, 355, 358, 360, 371, 497, 608, 708 Knott V. Hamilton and Plamborough Road Co. 789 Knowlton v. Knowlton . . . . 156, 329 Labatt v. Bixel Laidlaw v. AsBbaugh . 297, 307 230, 764 -XIV. TABLE 0J^' UABiiiS. COHIMN. Laidlaw v. Jackes S;24, 430 Laing v. Ontario Loan and Savings Co. 192, 212 Lakin v. Nuttall 822 Lalor V. Lalor 234, 579 Lambier v. J ambler . . . . 273, 579, 630 Lambiere v. Suhool Trustees of Section No. 3 South Cayuga . . . . . . . . 662 Lancey v. Johnston . . . . 346, 412, 510 lane, Re 578 Langdon and the Arthur Junction R. W. Co., In re 94,688 Langtuan and Martin, In re . . . . . . 14 Laplante v. Seamen . . . .460, 579, 724, 725 Lapointe v. Lafleur 202, 236 Lario V. Walker 203,618 LaRoche v. O'Hagan . . . . 253, 737, 780 Larue v. Deslauriers — Bellechasse Election (Dom.) 539,556,576,748 Lash V. Meriden Britannia Co. . . 176, 450 La Vassaire V. Heron. . .. .. .. 211 Lavin v. Lavin . . . . 128, 159, 228, 287, 326 Lawless v. Radford - V. Sullivan 706 24, 819 Lawlor V. Lawlor 235, 459 Laws, Re— Laws v. Laws . .173, 261, 325, 439 Lay cock. Re — McGillivray v. Johnson . . 724 Leader v. Northern R. W. Co. . . 198, 684 Learning v. Woon 32, 34, 695 Lee V. Credit Valley RW. Co. 183, 238, 341, 691 — V. McMahon .. .. 288,291,405 — V. Public School Board of the City of COLUMlf L'Orignal, In re Voter's List of the ViUage of, for the year 1882 519 Lott V. Drury 206, 499 Longhead v. Stubbs . . . . 227, 624, 740 Lovelace v. Harrington . . 287, 340, 720 Lowson V. Canada Farmers Ins. Co. 158, 175, 221, 263, 266, 360, 374, 631, 710 Lucas V. Fraser . . . . 164, 394, 632, 710 V. Knox 328 V. Ross 392, 629 Lumsden v. Davis . . . . . . 617, 711 V. Scott 6, 306 L'Union St. Joseph de Montreal v. Lapierre 147, 177, 509 Lyon V. Monk — Carleton Election (Ont.) . . 540, 569 660 691 . . 399, 634 . . 220, 819 . . 408, 778 223, 226, 234, 235 115, 117, 643, 747 46, 329 Toronto — V. Victoria R. W. Co. Leeson v. Lemon Leibes v. Ward, Inre. . Leighton v. Medley . . Leith V. McLellan Lenoir v. Ritchie . . 71, Leonard v. Leonard . . Lett V. St. Lawrence & Ottawa R. W. Co. 327 399, 498, 677, 679, 680, 681 Levi V. Reed 11, 198, 749 Levine v. Claflin 284, 324 Levoy V. Midland R. W. Co 680 Lightbouud v. HiU . .57, 63, 64, 308, 312, 395, 405, 65:! Lincoln Election (Ont.) (2) Pawling v. Rykert 8, 244, 517, 519, 521, 522, 525, 536, 554, 560, 567, 572, 577 (Ont.) (1) — Rykert v. Neelon . .529, 538, 559, 562 Little V. Billings , . . . . 797, 804 V. Brunker .. .. 11,470,641 Livingston v. Wood 32, 107, 159, 256, 470, 589, ■r, . -^ 638,695 Lloyd V. Wallace . . . . . . 34, 773 Lock V. T, ?^'^,' '^^^ Pembroke (Township of) v. Canada Central R. W.- Co. . . . . • -239, 484, 509, 677 People's Loan and Deposit Co. v. Bacon .. 718 Peterborough (Town of) v. Edwards 5, 27. 437, Peterkin v. McFarlane . . 623, 639, 642 Petiie V. Guelph Lumber Co. 150, 238, 291, 637 v. Hunter . . . • 312, 420, 818, 822 Pherrill V.Forbes .. .. 642,707,708 332, 752 ..726 . . 21, 52, 158 . . 626, 652 174, 175, 587 . . 191, 250 . . 574 . . 565, 567 Hagar v. Routhier 518, 520 (Ont.) — McKenzie v. Ham- ilton . . 251, 562, 564 Prince v. Gagnon . . . . . . . . 658 Prince Edward Election (Ont.) — Anderson V. Striker 550, 564, 569 (Ont.) (2) — Dof- land V. McCuaig 516 Pritchard v. Walker — London Election (Dom.) 562 Provincial Ins. Co. v. Cameron 7, 129, 133, 136, 137, 138, 139, 140, 150, 255, 387 of Canada v. Connolly 196, 382, 820 159, 475, 708 . . 223, 414 Q. Purdy V. Parks Pyatt V. MoKee Queen Ins. Co. v. Parsons . . 115, 354, 363 Queens County Election (Dom.) — Jenkins v. Brecken . . 520, 521, 527, 528, 569 Quinlan v. Union Fire Ins. Co. 179, 239, 357, 397, 610, 777 B. Radford v. Merchants Bank. . 70, 396, 780 Rae v. Trim 161, 169, 193, 200, 339, 485, 786, 788 Ramsay v. McDonald . . . . . . 724 Randall, Re 440 Ray V. Annual Conference of New Bruns- wick and Prince Edward Island 806, 816 Raynerd, Re . . . . . . . . . . 667 Real Estate Investment Co. v. Metropolitan Building Society 48, 150, 183, 288, 453, 464, 465, 509 Rees v. MoKeown . , . . 93, 171, 172 Regiua v. Adams v. AUbright V. Barnes V. Belleau 104, 387, 588 9, 120, 403, 754 ..74ft . . 121, 793 V. Bennett 9, 99, 100, 118, 131, 190, 242, 400, 403, 510, 778 ■ V. Bernard 403, 779 • V. Berriman 510, 746 . V. Berry 131, 132 ■ V. Bissel . . . . 188, 190, 316, 326 ■ V. Boucher . . 187, 331, 402, 444, 820 TABLE OF CASES. Regina v. Browne V. Campbell . . V. Chipman . . V. Chute V. Clark V. Clemian V. Cluff V. County of Carleton — V. Cutlibert — V. Daggett — V. Davidson — V. Dodds V. Doutre V. Duquette V. Fee . . V. Flint V. Fortier V. Frawley V. Goodman Gougli COLUMN- 3, 276, 277 . . 330, 753 50, 164, 401, 490 ..184 72, 403 ..402 ..105 . . 9, 54, 196, 781, 792, 819 98, 403, 490, 491, 820 . . 104, 736, 746, 820 401 . . 309, 819 126, 161, 596 .,208, 311, 334, 754 167, 243, 259 72. 403 104, 736, 744 . . 105, 120, 332, 753 187, 189, 191, 310, 315 186, 187, 444, 818 COLTJMlf. Richardson v. Richardson . . 51, 328, 496, 590 Ricker V. Ricker 163, 336, 337, 462, 473, 724, 726, 772 Ripley V. Ripley . . • ■ •, 224, 404 Ritchie v. Cameron— South Huron Election (Dom.) 538,573 Roberts v. Hall 128, 270, 338, 603, 741, 743, 796 V. Climie— Murphy v. Climie 205, 754 Robertson v. Coulton . . . . . .7, 9, 21, 22 V. Daganeau . . ■ ■ ■ ■ 776 V. Kelly 131, 441 V. Mero 630, 708 V. McMaster .. .. 154,155 Robins v. Clark 93, 300 V. Victoria Mutual Fire Ins. Co. 368, 374, 454 ■ V. Grainger 104, 403, 445, 730, 754, 777 ■ V. Greaves . . . . . . . . 790 ■ V. Hart . . 106, 163, 191, 506 ■ V. Hodge . . 72, 120, 332, 753, 754 • V. Hoodless . . . . . . . . 695 - V. Hovey, . . . . 186, 276, 278, 284 - V. Howard . 119, 281, 450, 493, 753 - V. Malcolm 401 - v. Matheson 310, 403 - V, McAUan 105 - V. McElligott 22, 402 - v. McFarlane . . 104, 127, 193, 451, 497, 596, 651 - V. McHolme .. ..21, 191, 779, 818 -V.Nelson 191,208 - V. O'Rourke . . 119, 181. 187, 188, 189, 190, 191 . . 754 120, 402, 484, 493 98, 112 ..184 . . 123, 281, 416, 417, 782 .. 187, 188, 315, 331, 695 105, 238, 331, 401, 403, 491 ..2, 51, 193, 636, 696, 778 452,819 . . 99, 100, 105, 403, 759 . . 99, 105, 332, 403 . 104, 402, 730, 745 . . 105, 403 Anderson 169, 482 707 Brine V. Booth.. 480, 481, 482, 754 Clancey v. Conway 480, 483, 754 v. Mcintosh 470, 481, 483 v. St. Jean . . 481, 483 Grant v. Coleman 170, 172, 445, 483 Robinson v. Hall Roblin V. Roblin Rody V. Rody . . Rogers v. Lowthian V. Manning Ullmann V. Falmer V. Pipe V. Reeves V. Richardson V. Robertsjon V. St. Denis V. Smith V. Stewart V. Tetft V. Wallace V. \A'alsh V. Washington V. AVhelan ex rel. McDonald .. 480 .. 480 .. 480 481, 482 . . 170, 482 75, 244, 286 . 404, 442, 500, 763, 779 222, 223, 234 ..253, 581, 712, 758 461 -East Toronto Elec- 173, 457, 502, 507, 762 318, 319, 329 225 '. '. 308, 799, 805 244, 247 . . 3, 449, 648 Romanes and Smith, In re . . . . 798, 807 Romann v, Brodrecht— Brodrecht v. Fick. . 607 Ronald and the Village of Brussels, In re . . 25 Rosebatoh v. Parry . . . . 159, 273, 640 Rosenbereer v. The Grand Trunk R. W. Co. 399, 679 Rosenstadt v. Rosenstadt . . . . 7, 328 Ross, Re 262, 268, 273, 386, 437, 440, 454, 588, 6.32 -.249 39 98, 228, 700, 702, 762 421, 423, 425, 429, 439, 727 . . lU, 164, 265, 608, 609 •17 62, 66, 67 Estate, Re V. Fitch . . V. Hunter — ' — V. Pomeroy Rumohrv. Marx, Rushbrook and Starr, Re Russell, Re ■ Hamilton v. Piper . Kelly V. Ion . . Lee V. Gilmour Mitchell V. Davidson . O'Dwyer v. Lewis Reid V. Humphrey . V. Maybee V. Reid . . . V. Smith . . V. Wilson Renniok v. Cameron tion (Ont.) 535, 536, 542, 547, 552, 555, 572 Rew V. Anthony . . 162, 336, 337, 630, 708 Rice V. Gunn . . 95, 252, 258, 262, 285, 648 V. Canada Life Ass. Co. 239, 251, 379, 611, 709 V. Russell . . . . 340, 699, 700 V. The Queen 100, 120 Election (Ont.) (2)— Baker v. Mor- gan.. . . 526, 528, 573 (Dom.), In re — Henderson V. Dickenson 315, 316, 563, 565, 569 (Out.)— OgUvie V. Baker 532, 558, 569 Rutherford v. Sing 741, 742 Ryan v. Fish . . . . 226, 227, 395, 452, 631 V.Ryan' 11,425,429 Ryer v. Plows, In re . . . .131, 401, 445, 730 Rykert v. Keelon — Lincoln Election (Ont. ) 529, 538, 559, 562 Sanders v. Malsburg 258, 325, 745, 776, 778 Sands v. Standard Ins. Co. . .354, 358, 366, 367 Sanson v. The N'orthern Railway . . . . 348 Sarnia (Township of) and Town of Sarnia, Re 496 Sato v. Hubbard, In Re . . 33, 35, 172, 659 Sawyer v. Short 711,765 Sayles v. Brown 201, 459 Saylor v. Cooper . . . . 607, 787, 819 Scane v. Duckett . . . . 47, 305, 609, 709 Schleihauf v. Cmada Southern R.W. Co. 673 Schneider v. Proctor . . . . . . . . 764 School Trustees of the Township of Hamil- ton v. Neil . . . .243, 622, 644, 665 Schultz v. Wood . . . .244, 288, 749, 766' TABLE OF CASES. COLUMN. 164, 603, 612 337 Peterboro' Election . . 544, 553, 556, 570, 574 231, 607, 612 . . 798, 803 Schwob V. McGrloughlin Scott, In re V. Cox— West (Ont.) V. Creightoa V. Duncan V. Ghon 797,811 V. Mitchell 1,7 V. Vosburg 466,756 .Scottish American Investment Co. v. Cor- poration of the Village of Elora. 94, 31 1, 387 , 439, 486, 745, 818 Scribner v. McLaren . . . . . . . . 88 Sears v. Agricultural Ins. Co. 354, 365, 372, 452, 496 Seaton v. Lunney . . . .203, 771, 772, 773 Segaworth v. Meriden Silver Plating Co. 89, 92, 158, 301, 389, 779 Selby, In re 589, 642 Selkirk Election (Dom. )— Young v. Smith 539, 551 Seuu V. Hewitt . . . . 246, 635, 707 Shauly v. Grand Junction R. W. Co, Shaw V. McKenzie Shelley v. Goring Shelly V. Hussey Shepherdson v. McCulIough . . Sherritt v. Beattie Shueider v. Proctor Shrigly v. Taylor Sievewright v. Leys Sivewright v. Leys • V. Sivewright 439, 449 .. 442 .. 326 .. 247 432 503, 637 612 527 268,'270, 631, 710, 774 ..273, 321, 621, 625 244, 247 Silsby V. Village of DunnvUle 127, 148, 149, 493 Silverthom v. Hunter . . . . . . 774 Simonton v. Graham. . . . . . . . 461 Simpson and the County Judge of Lanark, In re 518 V. Home . . . . 159, 272, 274 Singer v. Williams Manufacturing Co. . . 244 Sissona v. Ardagh — North Simcoe Election (Ont.) 550, 569 Skelton v. Thompson [497,791 Skirving v. Ross 206, 451 Slater v. Mosgrove 427, 436 Sleightholm v. Barr — Dafiferin Election (Ont.) 555,564,567,569 Small V. Riddell 68, 78, 82, 131, 580, 581, 656 Smith, an Infant, In re .. ., 71,337 . Re 798 V. Babcock 245, 246 — ■ V. Corporation of Ancaster Town- ship . . 106, 107, 158, 613,^616 V. Corporation of the Township of I Raleigh 50, 317, 489, 490, 495, 773 I— ^ V. Paught 476, 813 V. Forbes 95 V. Goldie 586 V. Harrington. . . . 62, 476, 818 : V. Keith— The Picton . . . . 117 I V. Keown 424, 503 I V. Merchants Bank 70, 82, 83, 114, 115 ( V. Midland R. W. Co. 29, 31, 436, 691 I V. PetersviUe 482, 509 / • V. Smith . . . . - . 8, 21 Smith's Trusts, Re . . . .234, 332, 704, 731 Suarr v. Granite Curling and Skating Co . . 157, 415 V. Smith 59, 86, 90, 767 Snetzinger v. Mclntyre — Cornwall Election (Oat.) . 540,569 Solicitor, A, In re 40 [Solicitors, Re 45, 46, 47, 710 COLUMN. Sommerville v. Rae 201, 239, 294 South Essex Election (Ont. ) — McGee v. Wigle 558, 572 Grey Election^ (Ont.) — Hunter v. Lauder 529, 535, 537, 542, 546, 555, 556, 561, 571, 576 -Grenville Election (Ont.)— Ellis v. Eraser 253, 516, 517, 524, 525, 528, 773 - Huron Election (Dom.) — Ritchie v. Cameron 538, 573 — Norfolk Election (Dom. ) — Decow v, Wallace . . . .532, 546, 554, 567 Ontario Election"(Ont.) — Farewell v. Brown 170, 532, .5.34, 558, 560, 566, 575 • (Dom.)— McKay v. Glen . . . . 538, 539, 544, 546, 563 Oxford Election (Ont. ) — Hopkins v. Oliver . . 38, 244, 253, 565, 570, 575 I "Renfrew Election (Dom.) — Banner- man v. MoDougall 570, 571. 573 . (Dom.) (2)— Mc- Kay V. McDougall . . . . 515, 574 'Wentworth Election (Out.)— Olm- stead V, Carpenter 517, 519, 520, 566 West Boom Co. v. McMillan 617, 751 Sowden v. Standard Fire Ins. Co. 354, 356, 366 Spears V. Miller 234,818 Sproule V. Stratford . . ' . . . . 98, 347 Squier, Re .. . , 114, 118, 167, 180, 330 St. Cathirines, City of and the County of Lincoln, In re the Arbitration between 310, 495 St. John V. BuUivant 89, 735 Stafford, Corporation of v. Bell 262, 493, 495, 497, 752 Stammsrs v. O'Donohoe 50, 641, 707, 717, 722, 740, 741 Standly.v. Perry . . . .110, 781, 791 ,j 793 Stanton and the Board of Audit for the County of Elgin, In re 50, 160, 165, 192, 446 Star Kidney Pad Co. v. Greenwood . . 219 Stark V. Shepherd . . . . 157, 453, 721 Starratt v. Miller — Muskoka Election (Ont. ) 545, 554 Stayner, In re . . . . . . . . . 25 Steele v. Grand Trunk R. W. Co. 103, 509, 684, 715 Steers v. Shaw 431, 432, 794 68, 77 ..216 130,. 280, 727 Steinhoff v. Merchants' Bank Stephens v. Laplante . . Stephenson v. Bain .... Stevenson v. Corporation of the City of 43, 163 164, 239, 266 .. 164,814 ..815 Kingston v. Sexsmith V. Stevenson Stewart v. Gesner v. Macdonald — Kingston Election (Dom.) 536, 543, 546, 556, 561, 571 V. Rounds . . . . 393, 506, 648 V. Tremain 299, 820 Stinson v. Stinson . . . . . . 770 Stoeser v. Springer . . 497, 704, 715, 7h"S Stogdale and Wilson, In re . . . . . . 215 Stormont Election (Ont. ) — Bethunev. Colqu- houn 515, 516, 521, 523, 524, 525, 528, 566, 570 (Ont. ) (2) Empey v. Kerr 562 Strange v. Toronto Telegraph Co. . . 170, 38S Stratton v. O'SuUivan — East Peterborough Election (Ont.) . . 528, 530, 549, 5S0 TABLE OF CASES. COLUMN. Stuart V. Branton 165, 820 Sullivan y. Harty . . . . 273, 693, 708 V. Town of Barrie . . . . 437, 783 Summers V. Cook .. .. .. 341,768 V. Commercial Union Ins. Co. . . 353 Sutherland v. McDonald . . . . ; . 153 — V. Patterson . . . 73, 314 Sutton V. Armstrong. . . . . . 54 Swainson V. Bentley .. .. .. ..812 Swaisland v. Davidson . 73, 75, 497, 509 Sweetzer et al v. Kosenfeldt. . 8, 20, 21r-101 Swift V. Minter 338, 473 Synod v. DeBlaquiere. . . . . . 110, 404 T. Taylor, In re . . . . . . . . . . 429 V. Adams 612, 767 V. Bradford . . . . 630, 634, 710 V.Hall 349,626 Theal v. The Queen . . . . 187, 188, 191 Thompson v. Canada Central E. W. Co. 421, 671 675 V. Holman . . 160, 468, 476, 648 -■ V. Thompson . . . . 329, 405 Thomson v. Torrance. . . . 795, 813, 814 and The Victoria E. W. Co., In re r . . 686, 688 V. Victoria Mutual Fire Ins. Co. 369, 620 .. 247 .. 207 399, 631 Tovraship of, v. Township of Sid- 489, 494 .. 705 88, 90, 302 .. 726 21, 251 387, 810, 811, 816 Thorbum v. Brown Thornton v. Capstook Thurlow V Beck Hospital Trustees v. Denham ney.. Thurston v. Breard Tidey v. Craib . . Tilt v. Knapp . , Timmins v. Wright Toomey V. Tracey .. ..„„,, ui„, ^^j. ^^, Toronto Brewing and Malting Co. v. Blake ' 141 142, 143, 150, 284, 350 City of, and Scott, In re . . 493, 494 Harbour Commissioners, Ee . . 115, 770, 771 .. 408 .. 16.^ . . 797, 803 45, 708 . . 302, 326 .160, 249, 306, 441 201, 338, 741, 769, 770, 776 388, 655, 737 .. 471 52, 58, 417, 768 ,.320 . . 73 173, 220, 221, 629, 710 Torrance v. Torrance Town v. Borden Totten, Ee ■ V. Bowen Travis v. Bell . . Treleven and Homer, In re Trerice v. Burkett Trinity College v.- Hill Troop V. Hart. . Trotter v. Chambers . . Trout V. Moulton Trude v. Phoenix Ins. Co. Trust and Loan Co. v. Gallagher 459, 463, 465 700 , V. Hill 393 V. Jones 230, 231, 634 V. Kirk . . . . 461 -— -— - V. Lawrason .. 212,456 J-urley v. Benedict . . . . 229 234 Turner v. Imperial Bank of Canada, In re T 217, 219 V. Liucas . , . . on-j Tylee V The Queen . . 113V405, 4123, 599, 706 Tyrwhitt v. Dewson . . 796, 797, 798, 799, 805 . U. Union Fire Ins. Co., Ee 151, 172, 175, ■ V. Fitzsimmons 150, ■ V. Lyman 134, 607, V. O'Gara 136, 137, ■ V. Shields V. Shoolbred 136, COLUMIf, 176, 385, 818. 136, ]38, 352, 694 138, 352, 615, 709' 138, 145. 136, 694 137, 138, 145. V. Valin V. Langlois — Montmorency Election (Dom.) 117, 563,568, 659' Vanderlip v. Smyth 645, 792 VanKoughnet v. Denison 182, 200, 257, 346, 7ia VanNorman v. Grant 35, 166, 172, 180, 340' Vansickle v. Vansickle . . . . . . 796 VanVelsor v. Hughson . . 255, 431, 452 Vars V. Gould . . . . . . . . 58, 154 Vermilyea v. Guthrie . . . . . . 588, 633 Vetter v. Cowan . . . . . , 21, 708 Vezina v. New York Life Ins. Co. . , . . 376 Victoria Mutual Fire Ins Co. v. Davidson 220, 256, 653 — ■■ v. Thompson 143, 147, 372, 373 Vinden v. Fraser . . . . 254, 304, 3U, Vogel V. Grand Trunk E. W. Co. . . 686, 819 Vogt V. Boyle iga Voters' List of the Village of L'Orignal for the year 1882, In re 519. W. Wadsworth v. Bell . . . . . . . . 733: Walker, Ee 298. an Insolvent, Ee . . . . 60, 584 V. McMillan. .71, 97, 131, 251, 416, 765 Wallace v. Cowan 706, 765 — V. Hutchison 323 V. Whaley 14 Wallbridge v. Bown — West Hastings Elec- tion (Ont) 56S Walmsley v. Kent Guarantee Co. 143, 147, 149, 150. Walton V. Corporation of the County of York. 177, 178, 214, 279, 423, 433, 507, 789, 790 Warden v. Trenouth 48 Waterloo Mutual Ins. Co. v. Eobinson. 242, 503, 657 Watson V. Bradshaw 262, 310' V. Dowser . . . , . , . . 465 V. Ketciium . . . . 295, 334, 767 V. Lindsay . . . . 193, 239, 426, 456 V. McDonald 244 V. Severn . . 168, 260, 400, 81* Watts V. Atlantic Mutual Life Ins. Co . . 377 Weatherhead v. Weatherhead 578, 630, 632 Weaver v. Vandusen — Wella v. Agerman 334, 45& Webster v. Leys . . . .273, 621, 622, 801 Weldon v. Vaughan . . 3, 5, 130, 651, 737 Welland Election (Ont. )— Beatty v. Ourrie529, 546, 56& (Ont.) (2)— Buchner v. Currie 533, 535, 544, 547, 553, 560, 56i; 572 TABLE OF CASES. XXL COLUMN. Welland, Town of v. Brown . . 27, 256, 777 Canal Enlargement, In re — Fitch v. MeRae .. ..113,232,414,793 Wesley v. Wills — West Hastings Election (Ont.) 536, 556 West Elgin Election (Ont.) — Cascaden v. Munroe . . . . 528, 566, 577 Hastings Election (Ont.) (2) — Holden V. Robertson 541, 555, 560 — (Ont. ) — Wallbridge V. Bown . . 503 (Ont.) —Wesley v. Wills . . 536, 556 Huron Election (Dom. ),In re — Mitcliell V. Cameron . . 315, 529, 563, 568, 570 Northumberland Election (Dom.) — Burnham v. Kerr . . 570, 571, 573 — Peterboro' Election (Ont.) — Scott v. Cox . . . . 544, 553, 556, 570, 574 Toronto Election (Ont.) (2) — Adamson V. Bell . . . . 557 (Ont.) — Armstrong V. Crooks 528, 530, 535, 537, 542, 551, 552, 553, 572, 576 Wellington Election (Ont.) — Moore v. McGowan 549, 572 York Election (Ont.) — Grahame v. Patterson 514, 574 Western Assurance Co. v. Provincial Ins. Co 196, 237, 353 Canada, &c. , v. Inoe . . . . 695 Loan and Savings Co. v. Dunn ..229, 230, 336, 473 Wetherell and Jones, Re . . . . 117, 246 Wheatley v. Sharpe . . . . . . . . 52 Wheatly v. Sharp . . . .101, 334, 635, 728 Wheler v. Gibbs— North Ontario Election (Dom.) .. .. 539,553,576,711,750 Whimsell v. Giffard 92, 210 White V. Lancashire Ins. Co. . . . . 352 V. Murray — North Renfrew Elec- tion (Dom.) .. .. 546,574 V. Township of Gosfield .. 445,784 of Sandwich East, In re . . . . 488, 489 Whitelaw v. Taylor 313 Whitely v. MacMahon . . . . 16, 19 Widditieldv. Simons.. .. . ..287 Widmever et al. v. McMahon, In re 215, 217, ^ 321, 326 Wigle V. Harris 607 COLUMN. Wilby V. Standard Ins. Co 358 Wilkes V. Wilkes 810 Wilkins V. Geddes . . . . 386, 589, 747 Willett V. Brown 101 Williams v. Corby . . 112, 196, 244, 284, 641 Williamson v. Ewing 127, 128, 181, 311, 639 Wills V. Agerman 334, 458 Wilmot V. Stalker 717, 820 Willson, Re— Lloyd v. Tichborne . . 272, 336 V. Brown 48, 76, 82, 171, 172, 581, 653 V. Campbell . . . . . . . 461 V. Gilmer 203, 234 V. Kyle 463 V. McGuire, In re . .117, 118, 220, 6,59 V. York 16, 448 • V. iEtna Life Ins. Co 034 Wiltsey V. Ward 219 Wiltsie V. Ward 216 Wintield V. Kean . . 443, 501, 502, 504 Wolffs V. Hughes 696,717 Wolverton and the Townships of South and North Grimsby, Re . . . . . . 663 Wood V. Hart 578 V. Hurl 745 V. The Queen . . 155, 263, 596, 600, 822 Woodhall, Re— Garbutt v. Hewson 158, 275 Woodman V. Blair 247,318 Woodruff V. Canada Guarantee Co . . 385, 777 Woodward v. Shields. . . . 58, 606, 612, 709 Workman v. Robb . . 174, 293, 410, 425, 819 Worthington v. McDonald 582 Wright V. Incorporated Synod of Huron 98, 108, 109, 145, 148 V. London Life Ins. Co. 239, 354, 380, 612 V. Sun Mutual Ins. Co. 127, 380, 453 V. Way 623, 643 Wyld V. McMaster . . . . 12, 349, 350 York, County of, v. Toronto Gravel Road and Concrete Co. . . 129, 249, 260, 760, 793, 820 Township of and Willson, Re. . . . 18 Young, Re 235, 773 V. Hobson 160, 707 V. Huber . . . .336, 340, 347, 585 V. Robertson . . . . 609, 740, 741 V. Smith— Selkirk Election (Dom.) 539, 551 V. Wright . . . .347, 578, 618, 693 CASES. AFFIKMED, REVERSED, OR SPECIALLY CONSIDERED. ^ PAGE. ' Adamaon v. Adamson, 25 Ohy. 550 cited. See Dumble v. Larush, 27 Chy. 187 434 28 Chy. 221 ; aflarmed S. C, 7 A. K. 592 428 Agricultural Investment Co. v. The Federal Bank, 45 Q. B. 214; affirmed S. C, sub nom. Agricultural Savings and Loan Association v. Federal Bank, 6 A. E. 192 68 Allan V. McTavish, 28 Chy. 539 ; reversed S. C, 8 A. R. 440 296 Ancaster, Township of v. Durrand, 32 C. P. 563 ; affirmed in appeal 793 Anchor Marine Ins. Co. v. Phoenix Ins. Co., 30 C. P. 570; affirmed S.O., 6 A.R. 567. 384 Anderson v. Bell, 29 Chy. 452 ; affirmed S. C, 8 A. K. 531 804 Attorney General of Ontario v. O'Eeilly, 26 Chy. 126; 6 A. K. 576; affirmed, S. C, 8 App. Cas. 767 233 ex reL Barrett V. The International Bridge Co., 28 Chy. 65 ; reversed S. C, sub nom. Attorney- General «. International Bridge Co., 6 A. R. 537 49,343 Backus V. Smith, 44 Q. B. 428 ; reversed S. O., 5 A. E. 341 416 Badenach v. Slater, 8 A. E. 402 ; affirmed by Supreme Court 23rd June, 1884 299 Bain v. McKay, 5 P. E. 471, overruled. See Taylor v. Adams, 8 P. R. 66 . .767, 912 Baird v. Baird, 26 Chy. 367, explained and reconciled. See Town v. Borden, 1 0. E. 327 803 BaUagh v. Royal Mutual Fire Ins. Co., 44 Q. B. 70 ; reversed S. C, 5 A. E. 87 . . 365 5 A. E. 87, approved. See Mutual Fire Ins. Co. of the County of Wellington «. Frey, 5 S. O. E. 82 364 Bank of Montreal v. Haffiier, 3 O. R. 183 ; reversed S. C, 20 C. L. J. 147 604 Barber v. Morton, 45 Q. B. 386 ; reversed S. C.,7 A. E. 114 82 Barrett, Re, 5 A. R. 206, followed. See Snarr v. Smith, 45 Q. B. 156 59, 767 Bates, Re, 40 Q. B. 248, followed. See Re- ^na V. Washington, 46 Q. B. 221 .... 104 Beal V. Smith, L. R. 4 C. P. 145 (Westmin- ter Case), followed. See West Elgin PAGE. Election (Ont.) — Cascaden v. Munroe, 1 H. E. C. 223 566 Beaty v. Bryce, 9 P. R. 320, explained. See Arkell et al. u. Geiger, 9 P. R. 523 390 not followed. See Christie v. Conway et al. , 9 P. R. 529 390 Beemer v. Oliver, 3 0. R. 523 ; affirmed S. C, 20 C. L. J. 286 239 Bell v. Lee, 28 Chy. 150 ; varied S. C, 8 A. E. 185 813 V. Eiddell, 2 0. R. 25 ; affirmed in ap- peal 81 Beninger v. Thrasher. 9 P. R. 206 ; affirm- ed S. C, 1 0. R. 313 65, 728 Billington «. Provinciallns. Co.,2 A. R. 158; affirmed S. C, 3 S. C. R. 182 359 Birkett et al. v. McGuire et al., 31 C. P. 430 ; reversed S. C, 7 A. E. 53 654 Blake v. Kirkpatriok, 27 Chy. 86 ; reversed S. C, 6 A. R. 212 4A9 Boale V. Dickson, 13 C. P. 337, overruled See Caldwell v. McLaren, 9 App. Cas. 392 783 Bond V. Treahy, 37 Q. B. 360, distinguished See Petrie v. Hunter et al. ; Guest et al. V. Hunter et al., 2 0. E. 233 312 Boswellu Sutherland, 32 C. P. 131 ; reversed S. C, 8A. R. 233 130,179,611 Brayley v. Ellis et al„ 1 0. R. 119 ; affirmed S. C, 20C. L. J. 144 57, 300 Brice v. Bannister, L. R. 3 Q. B. D. 569, distinguished. See Smith v. Corpora- tion of Ancaster Township, 45 Q. B. 86 106, 613 Brown v. Great Western R. W. Co., 40 Q. B. 333 ; 2 A. R. 64 ; affirmed S. C. , sub nom. Great Western R. W. Co. of Can- ada V. Brown, 3 S. C. R. 159 679 V. O'Dwyer, 35 Q. B. 354, followed. See McKay v. McKay, 31 C P. 1 .... 182 Browne v. Phillips, Ambl. 416, followed. See ReO'Brien, 3 0. R. 326 267 Bruce, County of v. McLay, 3 0. R. 23 ; in appeal 698 Brussels, Town of v. Ronald, 4 O. R. 1 ; in appeal . • 487 Burnham v. Ramsey, .S2 Q. B. 49, distin- guished. See Lapoiute v. Lafleur, 46 iS^Q. B. 16 202 xxiv. CASES AFFIRMED, PAGE. Callow V. Lawrence, 3 M. & S. 95, followed. See Black v. Strickland, 3 0. R. 217 . . 80 Cameron v. Campbell, 27 Chy. 307 ; affirmed S. C. , 7 A. K. 361 439 II. Wellington, Grey and Bruce R. W. Co., 27 Chy. 95 : reversed S. C, 28 Cl,y.327 204,674 Campbell v. Holyland, L. R. 7 Chy. D. 173, remarked upon. See Trinity College v. Hill, 2 0. R. 348 ' 471 J,. McDougall, 26 Chy. 280 ; re- versed S. C, 5 A. R. 503; S. C., sub nom. McDougall v. Campbell, 6 S. C. R. 502 477 V. Robinson, 27 Chy. 634, fol- lowed. See Chamberlain v. Sovais, 28 Chy. 404 470 Canada Fire and Marine Ins. Co. v. Western Assurance Co., 26 Chy. 264; affirmed S. C.,5 A. R. 244 383 Southern R. W. Co. v. International Bridge Co., 28 Chy. 114 ; 7 A. R. 226 ; affirmed S. C, sub nom. International Bridge Co. o. Canada Southern R. W. Co., 8 App. Cas. 723 387 Cannon v. The Toronto Corn Exchange, 27 Chy. 23 ; affirmed S. C, 5 A. R. 268 . . 146 Carlisle v. Tait, 32 C. P, 43 ; reversed S. C, 7 A. R. 10 85 Carrickfergus case, 1 O'M. & H. 264, fol- lowed. See East Elgin Election (Dom.), Blue V. Arkell, 1 H. E. C. 769 574 Casey v. H anion, 22 Chy. 225, followed. See Gough v. Bench, 9 P. E. 431 742 Chamberlain v. Stormont, 45 Q. B. 26, cited See Re Board of Education of Morria- burg and the Township of Winchester 8 A. R. 169 665 Chamherlen v. Clark et al., 1 0. R. 135; affirmed S. C. , 9 A. R. 273 271 Charles, Re — Fulton v. Whatmough, 1 0. R. 362 ; reversed by the Court of Ap- peal, 20 C. L. J. 347 803 Church v. Fenton, 28 C. P. 384 ; 4 A. R. 159 ; affirmed S. C, 4 S. C. R. 239. . . 28 / Citizens' Ins. Co. of Canada v. Parsons, 4 S. C. E. 215; reversed S. C, 7 App. Cas. 96 115, 363 Clarke v. White, 28 C. P. 293 ; reversed S. C. lb., 308 ; 3 S. C. R. 309 756 Collins, E«, 8 P. R. 543, distinguished. See Re Allan— Pocock v. Allan, 9 P. R. 277. 273 Colton, Re— Fisher v. Colton, 8 P. R. 542, cited. See .A.llan, Re- Pocock v. Allan, 9 P. R. 277 657 Clouse V. Canada Southern R. W. Co. , 4 0. R. 28 ; in appeal 674 Clowes V. Hilliard, L. R. 4 Chy. D. 413, followed. See McClenaghan v. Grey, 4 0. R. 329 110 Cobourg Town Trust, Commissioners of, 22 Chy. 377, followed. See Re Toronto Harbour Commissioners, 28 Chy. 195 . . 115 Cosgrave et al. v. Boyle, 45 Q. B. 32 ; 5 A. R. 458 ; reversed S. C, 6 S. C. R. 165 76 REVERSED, ETC. PAGE. Court ■«. Walsh, 1 0. R. 167; affirmed S. C, 9 A. R. 294 426 Cowan's Estate, Re, L. R. 14 Chy. D. 638, followed. See Leammg v. Woon, 7 A. R. 42 34 Cowling V. Dixon, 45 Q. B. 94 ; reversed S. C , sub nom. Cowling v. Dickson, 5 A. R.549 290,413 Crathern v. Bell, 46 Q. B. 365 ; affirmed S. C, 8A. R. 537 - 314 Crooks V. Crooks, 1 Chy. 57, remarked upon and followed. See Re Donovan— Wilson V. Beatty, 29 Chy. 280 45 Cross V. Currie, 43 Q. B. 599 ; affirmed S. C, 5 A. R. 31 81 Cmickshank v. Corbey, 30 C. P. 466; affirm- ed S. C, 5 A. R. 415 14 Cruso V. Bond, 9 P. R. Ill ; reversed S. C, 1 0. R. 384 472 Crysler v. McKay et al., 2 A. R. 569 ; rever- sed S. C, sub nom. McKay v. Crysler, 3 S. C. R. 436 28 Culver V. Swayze, 26 Chy. 395, considered and followed. See Campbell v. Camp- bell, 29 Chy. 252 305, 620 Davidson u. Oliver, 6 A. R. 505 ; reversed by the Supreme Court 811 V. McGuire, 27 Chy. 483 ; affirmed S. C, 7 A. R. 98 302 Dermy v. The Montreal Telegraph Co. , 3 A. R. 628, not followed. See Austin v. Davis, 7 A. R. 478 172, 198 Dewaru. Mallory, 26 Chy. 618, varied. See S. C, 27 Chy. 303 282 Dilke V. Douglas, 26 Chy. 99 ; reversed S. C, 5 A. R. 63 459 Direct United States Cable Co., (Limited) V. The Dominion Telegi-aph Co. of Can- ada, 28 Chy. 648 ; affirmed S. C, 8 A R. 416 14, 15, 17, 624 Dobell et al. v. The Ontario Bank. 3 O. K. 299 ; reversed S. C, 9 A. R. 484 . . 70, 149, 647 Doe Johnson v. Bay tup, 3 A. & E. 188, fol- fowed: See Nelles v. White, 29 Chy: 338 229 Dolphin V. Layton, L. R. 4 G. P. D. 130, remarked upon. See Bland et aL v, Andrews et al., 45 Q. B. 431 218 Dominion Loan & Savings society v. Darling, 27 Chy. 68 ; affirmed S. C, 5 A. R. 576 204 Donovan Re — Wilson v. Beatty, 29 Chy. 280; reversed S. C, sub nom. Wilson V. Beatty — In re Donovan, 9 A. R. 149 45 V. Herbert, 4 0. R. 635, in appeal 422 Doyle V. Bell, 32 0. P. 632 ; in appeal .... 527 Drummond v. Guickard cited in Green v. Adams, 2 Chy. Chamb., overruled. See Cruso v. Bond, 1 0. R. 384 472 DufiFw. Canadian Mutual Fire Ins. Co., 9 P. R. 292; reversed S.C, 2 U.R. 560.. 47, 108,374 27 Chy. 391 ; affirmed S. C, 6 A. R. 238 373 Dumble v. Dumble, 29 Chy. 274; reversed S. C, 8 A. R. 476 805 CASES AFFIRMED, REVERSED, ETC. XXV. PAGE. Bumble v. Larush, 25 Chy. 552 ; affirmed S. C, 27 Chy. 187 434 Dupuy V. Ducondu, 6 S. C. R. 425 ; reversed S. C, sub nom. Ducoudu v Dupuy, 9 App. Gas. 150 183, 758 Earls V. McAlpine, 27 Chy. 161 ; affirmed S. 0., 6 A. R. 145 813 Eastern Counties, &c., R. W. Co. v. Mar- riage, 9 H. L. Co. 32, followed. See Wood V. Hurl, 18 Chy. 146 745 Edgar et ux. v. Northern R. W. Co. , 4 0. B. 201 ; in appeal 681 Ellerby v. Walton, 2 P. R. 147 ; followed See Scott v. Mitchell, 8 P. R. 518 1, 1 Elliott V. Brown, 2 0. R. 252, in appeal 321 Emmett v. Quinn, 27 Chy. 420 ; reversed S. C, 7 A. R. 306 408 Erb V. Great Western R. W. Co., 42 Q. B. 40 ; 3 A. R. 446 ; affirmed S. C, 5 S. C, R. 179 650 Faulds V. Harper, 2 0. R. 405 ; reversed S. C, 9 A. R. 537 427,470 Eellowes v. Ottawa Gas Co., 19 0. P. 174, commented upon. See Montreal City and District Savings Bank v. County of Perth, 32 C. P. 18 199, 615 Fitzgerald v. Grand Trunk R. W. Co., 28 C. P. 586 ; 4 A. R. 601 ; affirmed S. C, 5 S. O. R. 204 685 Fletcher v. Rylands, L. R. 1 H. L. 330, applied. See Furlong v. Carroll, 7 A. R. 145 281 Flight V. Thomas, 11 A. &E. 688; 8 CI. & F. 231, considered and followed. See Burnham v. Garvey, 27 Chy. 80 . . 421, 436 Forrester v. Thrasher, 9 P. fi,. 383 ; affirmed S. C, 2 O. R. 38 65 I'orster v. Patterson, L. R. 17 Chy. D. 132, not followed. See Faulds v. Harper, 2 O. R. 405 427 Foster v. Emerson, 5 Chy. 134, remarked upon. SeeWorkman«.Robb,28Chy.243 293 Fox V. Toronto and Nipissing R. W. Co., 28 Chy. 212 ; affirmed in appeal 691 Tredericton Mayor, &c., or v. The Queen, 3 S. C. R. 505, cited. See Regina v. Howard, 45 Q. B. 346 119 Frey v. The Mutual Fire Ing. Co. of the County of Wellington, 43 Q. B. 102, 4 A. R. 293 ; reversed. S. C, sub nom. Mutual Fire ins. Co. of Welling- ton V. Frey, 5 S. C. R. 82 368 Fryer v. Shields, 45 Q. B. 188 ; reversed S, C, 6 A. R. 57 64, 449 Fulton et al. «. Upper Canada Furniture Co. , 32 C. P. 422 ; reversed S. C, 9 A.R. 211 126 •Galemo and the Corporation of the Town- ship of Rochester, In re, 46 (}. B. 379, followed. See McTieman v. Frazer, 9 P. B. 246 220 ■Galloway v. Corporation of London, L. R. 4 Eq. 90, cited. See Stevenson v. Cor- poration of the City of Kingston, 31 C. P. 333 43 Gaston V. Wald, 19 Q. B. 586, doubted. See Furlong v. Carroll, 7 A. R. 145 281 PAOK. Gauthieri). Waterloo Mutual Ins. Co., 44 Q. B. 490; affirmed S. C, 6 A. R. 231 ... . 360 Georgian Bay Transportation Co. v. Fisher, 27 Chy. 346; reversed S. C. 5 A. R. 383 341, 734 Gildersleeve v. McDougall, 31 C. P. 164 ; reversed S. 0., 6 A. R. 553 5, 126 Gooderham v. Toronto & Nipissing R. W. Co., 28 Chy. 212 ; affirmed in appeal. . 691 Grand Junction Railway and County of Peterboro, Re, 45 Q. B. 302 ; reversed S. C, 6 A. R. 339 ; 8 S. C, R. 76. . 122, 689 V. Peterborough 8 S. C. R. 76, followed. See In re Can- ada Atlantic R. W. Co., and the Cor- poration of the Township of Cambridge, 3 0. R. 291 6S9 Grand Trunk R. W. of Canada v. Toronto Grey and Bruce R. W. Co., 2 O. R. 441 ; in appeal 687 Grant v. McAlpine, 46 Q. B. 379, followed See McTieman v. Frazer, 9 P. R. 243. . ^0 Great Western R. W. Co. v. McEwan, 28 Q. B. 528 ; 30 Q. B. 559, followed. See Stoeser v. Springer, 7 A. B,. 497 704 Green v. Watson, 2 0. R. 627 ; affirmed S. C, 20C. L. J. 285 587 Greet?). Citizens Ins. Co., 27 Chy. 121 ; re- versed S. G, 5 A. R. 595 363 ■ V. The Mercantile Ins. Co., 27 Chy. 121 ; affirmed S. C, 5 A. R. 596 363 V. The Royal Ina. Co., 27 Chy. 121 ; reversed S. C, 5 A. R. 596 363 Griffith V. Brown, 26 Chy. 503 ; reversed S. C, 5 A. R. 303 423 Guelph V. The Canada Co., 4 Chy. 656, cited. See Fenelon Falls v. Victoria R. W. Co., 29 Chy. 4 49, 34.3, 676 Guest V. Hunter — Petrie i'. Hunter, 2 0. R. 233 ; affirmed S. C, 20 C. L.' J. 286 . . 420 Gunn V. Doble, 15 Chy. 655. followed. See Re Morse, 8 P. R. 475 252 15 Chy. 655, distinguished. See Johnston v. Johnston, 9 P. R. 259 ■ 472 HaU, Ex parte, L. R. 19 Chy. D. 580, fol- lowed. See The Meriden Silver Co. v. Lee, 2 O. R. 451 308 Re, 32 C. P. 498 ; affirmed S. C, 8 A. R. 135 178, 179 V. Caldwell, 8U. 0. L. J. 93, followed. See Faulds v. Harper, 2 0. R. 405. ... 427 Harris v. Mudie, 30 G. P. 484 ; affirmed in part S. C, 7 A. R. 414 424,' 431 Harrison v. Pinkney, 44 Q. B. 509 ; affirmed S. C, 6 A. R. 225 412 Hart V. Ruttan, 23 C. P. 613, not followed. See Scott v. Mitchell, 8 P. R. 518 1, 7 Harvey v. Great Western R. W. Co. et al., 9 P. R. 80; affirmed, S. C, sub nom. Harvey v. Grand Trunk R. W. Co. et aL, 7 A. R. 715 603, 683 Hateley v. Merchants Despatch Co., 4 O. K. 723, in appeal 84 Hathaway v. Doig, 28 Chy. 461 ; reversed S. C, 6A. R. 264 342 XXV] . CASES AFFIRMED, REVERSED, ETC. Hedstrom v. Toronto Car Wheel Co., 31 C. P. 475 ; affirmed S. 0. , 8 A. E. 627 ... . 713 Henderson v. Spencer, 8 P. R. 402, not fol- lowed. i5ee Ee Eobertson and Dag- aneau, 9 P. E. 288 776 Eendrie v. Grand Trunk E. W. Co. of Can- ada, 2 O. E. 441 ; in appeal 687, 743 V. Neelon, 3 0. E. 603 ; in appeal . . 758 High School Board of U. C. of Stormont, Sundas and Glengarry, and the Town- ship of Winchester, 45 Q. B. 460 ; re- versed S. 0., sub nom. Ee Board of Uducation of the Village of Morrisburg, and the Municipal Corporation of the Township of Winchester, 8 A. E. 169. 665 Hill, Ee, L. E. 2 P. & D. 89, distinguished. See Ee O'Brien, 3 O. E. 326 267 Hinton v. St. Lawrence and Ottawa E. W. Co., 1 O. E. 545 ; in appeal . . 677, 679, 681 HodsoU V. Taylor, L. E. 9 Q. B. 79, fol- lowed. See Ferguson v. Veitch, 45 Q. B. 160 728 Holland v. Hodgson, L. E. 7 C. P. 328, ap- proved. See McCausland D.jMcCaUum et al., 3 0. E. 305 283 Horsley v. Cox, L. E. 4 Chy. 92, followed. See Gilchrist v. Wiley, 28 Chy. 425 33 Howes*. DominionPire and Marine Ins. Co., 2 O. E. 89 ; reversed S. C, 8 A. E. 644 361 Hngill V. Merrifield, 12 C. P. 264, over- ruled. See Austin*. Davis, 7 A. E. 478. 753 Hurst, Ee, 31 Q. B. 116, commented upon. See Ee Beaty, an Insolvent, 6 A. E. 40. 59 Imperial Loan and Investment Co. v. O'Sul- livan, 8 P. E. 162, followed. See Wat- son V. Dowser, 28 Chy. 478 465 Ingram v. Soutten, L. E. 7 H. L. 408, ap- plied. See Ee Charles — Fulton v. Whatmough 1 O. E. 362 803 V. Taylor. 46 Q. B. 52 ; affirmed S. C.,7A. E, 216 320 International Bridge Co. v. Canada Southern E. W. Co., 28 Chy. 114 ; 7 A. E. 226 ; affirmed, S. C.) 8 App. Caa. 723 387 V. Canada Southern E. W. Co., 7 A. E. 226. See S. C, 19 C. L. J. 358 71 Jackson v. Bowman, 14 Chy. 156, followed. See Collard v. Bennett, 28 Chy. 556 . . 302 14 Chy. 156, remarked upon, distinguished, and approved. See Davidson v. Maguire, 7 A. K. 98 302 Jarrard, In re, 4 0. E. 265 ; affirmed S. C, 20 (5. L. J. 145 186 Jarvis v. Great Western E. W. Co., 8 C. P. 280, followed. See Stevenson v. Cor- poration of the City of Kingston, 31 C. P.333 43 Jellett V. Anderson et al., 27 Chy. 411 ; 7 A. E. 341 ; reversed by the Supreme Court 3rd May, 1883 199, 279 Jessup V. Grand Trunk E. W. Co., 28 Chy 583; reversed S. C, 7 A. E. 128 674 7 A. E. 128, distinguished. See Clouse v. Can ada Southern E. W. Co., 4 0. E. 28. . 674 PAGE. Johnson v. Toronto Grey & Bruce E. W. Co., Ee, 8 P. E. 535, followed. See Hendrie v. Grand Trunk E. W. of Canada, 2 O. E. 441 688 Johnston v. Oliver, 3 0. E. 26 ; in appeal . . 430 Jones V. Festiniog E. W. Co., L. E. 3 Q. B. 733, applied. See Furlong v. Carroll, 7 A. E. 145 281 Joyce V. Hart, 1 S. C. E. 321, reviewed and approved. See Levi v. Eeed, 6 S. C. E. 482 749 Keefer v. Keefer, 27 C. P. 257, remarked upon. See Workman v. Eobb, 28 Chy. 243 293 V. McKay, 29 Chy. 162 ; affirmed S. C.,9 A. E. 117 801 V. Merrill, 6 A. E. 121, approved. See McCausland v. McCallum et al., 3 0. E. 305 283 Kelly V. Macarow, 14 C. P. 457, distinguish- ed. See Eegina ex rel. Clancy v. St. Jean, 46 Q. B. 77 481 Keough V. Price, 27 C. P. 409 remarked upon. See DriscoU v. Green, 8 A . E. 466 85 Kerr v. Styles, 26 Chy. 309, followed. See Johnson v. Bennett, 9 P. E. 337 . . 266, 394 Kilbourn v. Arnold, 27 Chy. 429 ; reversed S. C, 6 A. E. 158 43 Kinsman v. Rouse, L. E. 17 Chy. D. 104, not followed. See Faulds v. Harper, 2 0. R. 405 427 Kissock V. Jarvis, 6 C. P. 156, approved and followed. See Beaumont v. Cramp et al., 45 Q. B. 355 Si Labatt v. Bixell, 28 Chy. 593, followed. See Heaman v. Seale, 29 Chy. 278 307 Laidlaw v. Jackes, 25 Chy. 293 ; affirmed in part, S. C, 27 Chy. 101 224, 430 Lang V. Kerr, 3 App. Cas. 529, followed. See Wood v. Hurl, 28 Chy. 146 715 Laviu V. Lavin, 27 Chy. 567 ; affirmed S. C, 7 A. E. 197 159, 287 27 Chy. 567, followed. See Irwin V. Young, 28 Chy. 511 159, 287 Lawless*. Sullivan, 3S.C. R. 117; reversed S. C, 6 App. Cas. 373 24 Lawlor *. Lawlor et al., 6 A. E. 312; re- versed by Supreme Court 235, 459 Lee *. MoMahon, 2 O. R 654, in appeal. , 28S Leitoh *. McLellan, 2 0. R. 587 ; affirmed in fuU court 226 Lett V. St. Lawrence and Ottawa E. W. Co., 1 0. E. 545 ; in appeal. . . .677, 679,681 Lewis *. Hoare, 44 L. J. N. S. 66, followed. See Petrie *. Hunter, 2 0. R. 233 .... 822 Lincoln Election (Ont.) Eykert v. Neelon, 1 H. E. C. 391, not approved. See North Wentworth Election (Ont.) Christie *. Stock, 1 H. E. C. 343 o6(> Linfoot*. Buncombe, 21 C.P. 484, remarked upon. See Harvey *. PearsaU, 31 C. P. 239 225 Longeway *. Mitchell, 17 Chy. 190, consid- ered and followed. See Campbell v. Campbell, 29 Chy. 252 305, 620 CASES AFFIRMED, REVERSED, ETC. XXVll. PAGE. Lonnt V. The Canada Farmers Ins. Co., 8 P. R. 433, overruled. See Lowson v. The Canada Farmers Ins. Co., 8 A. R. 613. . 374 Lovell V. Gibson, 6 P. R. 132, commented upon. See Meyers v. Kendrick, 9 P.R. 363 35 Lowson V. Canada Farmers Ins. Co. , 28 Chy. 525 ; reversed S. C, 6 A. R. 512. . . . 374 ■ 9 P. R. 185, reversed ; S. C. 8 A. R 613 374 Madden J). Cox, 44 Q. B. 542; affirmed S. C. 5 A. R. 473 143 Mag urn v. Magurn, 3 O. R. 570 ; in appeal. . 328 Marshall v. Green, L. R. 1 C. P. D. 35, com- mented upon and distinguished. See Summers v. Cook, 28 Chy. 179 758 Martin v. Mc Alpine et al., 3 O. R. 499 ; re- versed S. C, 8 A. R. 675 307 Masuret v. LansdeU, 8 P. R. 57, remarked upon and modified. See Phipps u. Rea- mer, 8 P. R. 181 389 Matson v. Swift, 5 Jur. 645, followed. See Re Houston — Houston v. Houston, 2 O. R. 84 462 May V. Standard Fire Ins. Co., 30 C. P. 51 ; reversed S. C, 5 A. R. 605 366 Mayor, &c., of Fredericton v. The Queen, 3 S. C. R. 505, cited. See Regina v. Howard, 45 Q. B. 346 119 Mead v. Creary, Re, 8 P. R. 374 ; reversed in pait ; S. G. 32 C. P. 1 217 Mercer v. The Attorney General for the Province of Ontario, 5 S. C. R. 538 ; re- versed S. C, sub nom. Attorney General of Ontario v. Mercer, 8 App. Cas. 767. 121 Merchants Bank v. Clarke, 18 Chy, 594, approved. See Morton v. Nihan et al., 5 A. R. 20 63 Midland R. W. Co. v. Ontario RoUing MiUs Co., 2 O. R. 1 ; affirmed in appeal 713 Mills et al. v. Kerr, 32 C. P. 68 affirmed ; S. C, 7 A. R. 769 298 Minshull v. Oakes, 2 H. & N. 793, remarked upon. See Emmett v. Quinn, 7 A. R. 306 408 MiteheU v. Goodall, 44 Q. B. 398, affirmed ; S. C, 5 A. R. 164 108 44 Q. B. 398, distin- guished. See Smith v. Corporation of Ancaster Township, 45 Q. B. 86.. 106, 613 Moffatt V. Board of Education of Carlton Place, 26 Chy. 690 ; affirmed S. C, 5 A. R. 197 663 V. Prentice, 6 P. R. 33, followed. See Bank of British North 4-merica v. Eddy, 9 P. R. 396 246 V. The Reliance Mutual Life Ass. Society, 45 Q. B. 561 ; in appeal 378 Monteith v. Merchants Despatch & Trans- portation Co., 1 0. R. 47 ; affirmed S. C, 9 A. R. 282 102 Moore v. Central Ontario R. W. Co., 2 0. R. 647 ; in appeal 675 V. Connecticut Life Ins. Co. of Hart- ford, 41 Q. B. 197 ; 3 A. R. 230 ; re- versed S. C, 6 S. 0. R. 634, which PAGE. last decision was affirmed, S. C, sub nom. Connecticut Life Ins. Co. of Hart- ford V. Moore, 6 App. Cas. 644. . . 505, 507 Morphy v. Wilson, 27 Cby. 1, considered and followed ; See Campbell v. Camp- bell, 29 Chy. 252 305, 620 Murphy v. Murphy, 25 Chy. 81, followed ; See Ripley v. Ripley, 28 Chy. 610 224 Murray, Re— Purdoni v. Murray, 29 Chy. 443, reversed ; S. C, 9 A. R. 369 3U V. Canada Central R. W. Co., 7 A. R. 646 ; affirmed, S. C, 8 S. C. R. 313, special leave to appeal to Her Majesty Council refused, 8 App. Cas. 574 ... . 64i> Macdonald et al. v. Crombie et al. , 2 0. R. 243, affirmed. See 20 C. L. J. 146 295 Mackedie v. Watt (not reported), followed ; Heaman v. Seale, 29 Chy. 278 307 McCarthy v. Arbuckle, 31 C. P. 227 ; re- versed, S. C, 31 C. P. 405 18, 333 McClung V. McCracken, 2 0. R. 609; affirm- ed, S. C. , 3 0. R. 596 717, 739 McCracken v. Oreswick, 8 P. R. 501, fol- lowed. See In re Widmeyer et al. v. MoMahon et al., 32 0. P. 187 215 McDonald v. Field, 9 P. R. 220, overruled by Divisional Court 6, 41 McDonald & Marsh, Re, 8 P. R. 88, approved. See Re Cronyn, Kew & Betts, 8 P. R. 372 468 V. McICinnon, 26 Chy. 12, com- mented upon. See Parkur i . Parker, 32 C. P. 113 260 V. Murray, 2 0. R. 573, in appeal 718 V. Weeks, 8 Chy. 297, dissented from. See Keefer v. MerriU, 6 A. R. 121, 283 McEwan v. McLeod, 46 Q. B. 235 ; affirmed, S. C, 9 A. R. 239 18, 102 McGee v. Campbell, 28 Chy. 308 ; reversed, S. C„ 2 0. R. 130 58, 65 Mclntyre v. The National Ins. Co. , 44 Q. B. 501 ; affirmed, S. C, 5 A. R. 580 .... 369 McKay v. Crysler, 3 S. C. R. 436, distin- guished. See Nelles v. White, 29 Chy. 338 25 V. Griuley, 30 Q. B. 54, remarked upon. See Caughill v. Clarke, 3 0. R. 269 74 McKenna v. Smith, 10 Chy. 40, followed. See Heaman v. Seale, 29 Chy. 278 307 McKenzic v. Dwight, 2 0. R. 366; in appeal 720 McKenzie v. Kittridge, 24 C. P. 1 ; 27 C. P. 65; affirmed, S. C, 4 S. C. R. 368 144 McLachlan ■;;. Blackburn, 7 i". R. 287, dis- sented from. See Myers v. Kendrick, 9 P. R. 363 35 McLaren v. Caldwell, 6 A. R. 456; reversed, S. C, 8 S. C. R. 435 ; which decision in appeal was reversed by the Privy Council, 9 App. Cas. 392, sub nom. Caldwell v. McLaren 783 V. Canada Central R. W. Co., 32 C. P. 324 ; 8 A. R. 564, affirmed by Her Majesty in Council 683 McLean v. Garland, 32 C. P. 524, in appeal 299 xxvni. CASES AFFIRMED, EEVERSED, ETC. PAGE. MoMahon v. Barnes, order book No. 9 fol. 730 (not reported) followed. See Churoh V. Fuller, 3 0. E. 417 741 McMaster«. Garland, 31 C. P. 320; affirmed, S. C, 8 A. R. 1 32, 87 McQueen u Phcenix Mutual Fire Ins. Co., 29 C. P. 511 ; S. C, 4 A. R. 289, but the judgment of the Court of Appeal was reversed, S. C, 4 S. 0. R. 66,0 359 Nasmith v. Manning, 5 A. R. 126 ; aflBrmed, S. C, 5 S. C. R. 417 134 ISTeill V. Carroll, 28 Chy. 30 ; affirmed, S. 0., 28 Chy. 339 419 V. Travellers Ins. Co., 31 C. P. 394 ; 7 A. R. 570; affirmed by Supreme Court, 23rd June, 1884 177, 381 V. Union Mutual Life Ins. Co., 45"Q. B. 593 ; affirmed, S. C, 7 A. R. 171. . 378 Nelles V. Bank of Montreal, 28 Chy. 449 ; affirmed, S. C, 7 A. R, 743 61 NeUis V. White, 29 Chy. 338 ; affirmed by Supreme Court S. C. , aub nom. White V. Nellis, 23rd June, 1884. 229 New Westminster Brewing Co. , v. Hannah, 24 W. R. 899, followed. See McGlena- ghan V. Grey, 4 0. R. 329 110 Nicholson v. Phoinix Ins. Co., 45 Q. B. 359; in appeal 355 Norris v. Meadows, 28 Chy. 334 ; affirmed S. €., 7 A. R. 237 722 North York Election Case, Re (Dom.)— Pat- erson v. Mulock, 32 C. P. 458, overruled See Mitchell v. Cameron, 8 S. G. R. 126 315, 563 North Wentworth Election (Ont.)— Christie V Stock, 1 H. E. C. 34^1, reversed. See North Grey Election (Ont.) — Boardman V. Scott, 1 H. E. C. 362 559 O'Doherty v. Ontario Bank, 32 C. P. 285 ; in appeal 304 O'Donohoe v. Whitty, 2 0. R. 424, affirmed ; S. C, 20 C. L. J. 146 39 Ogden V. McArthur, 36 Q. B. 246, distin- guished. See Sanders v. Malsburg, 1 0. R. 178 325 Oliver?). Newhouse, 32 C. P. 90, .reversed ; S. C, 8 A. R. 122 410 O'Mahoney v. Burdett, L. R. 7 H. L. 388, applied. See Re Charles — Fulton v. Whatmough, 1 0. R. 362 803 "Ontario Industrial Loan and Investment Co. V. Lindsey et al., 4 0. R. 473 ; varied B. C, 3 0. R. 66 48, 697 Orr V. Orr, 21 Chy. 397, commented upon. See Parker v. Parker, 32 C. P. 113 260 ■Osborne v. Preston and Berlin R. W. Co. , 9 C. P. 241, commented upon. See Montreal City and District Savings Banku. County of Perth, 32 C. P. 18. 199,615 'Osier u. Toronto, Grey and Bruce R. W. Co., 8 P. R. 506, followed. See Hendrie v. Grand Trunk R. W. Co. of Canada, 2 0. R. 441 688 Ottawa Co. u. Liverpool Ins. Co. 28 Q. B. 222, approved. See Gill v. Canada Fire and Marine Ins. Co., 1 0. R. 341.... 360 PAGE. Page V. Austin, 30 C. P. 108 ; reversed S. C, 7 A. R. 1, which judgment in appeal was affirmed by the Supreme Court, 20 C. L. J. 247 135 Pardee v. Lloyd, 26 Chy. 375, reversed ; S. C, 5 A. R. 1 19 Parke v. Day, 24 C. P. 619, commented on. See Forrester v, Thrasher, 9 P. R. 383 ; 2 0. R. 38 65 Parkes v. St. George, 2 0. R. 342; in ap- peal 90 Parkhurst v. Roy, 27 Chy. 361 ; affirmed S. C, 7 A. R. 614 816 Parsons v. Citizens Ins. Co. , 7 App. Cas. 96 followed. See Devlin v. Queen Ins. Co. , 46 Q. B. 611 611 V. Standard Ins. Co., 5 S. C. R. 233 followed. See Lowson v. Canada Far- mers' Mutual Fire Ins. Co., 6 A. R. 512 374 V. Standard Fire Ins. Co., 4 A. R. 326 ; affirmed S. C, 5 S. C. R. 233 . . 360 Patterson v. Smith, 42 Q. B. 1, remarked upon. See Pyatt v. McKee, 3 O. R. 151 414 V. Thompson, 46 Q. B. 7 ; reversed S. C, 9 A. R. 326 210 Peek et al. v. Shields, 31 O. P. 112 ; 6 A. R. 639 ; affirmed S. C, 8 S. 0. R. 579. .63, llg Perth, Re, 39 Q. B. 34, cited. See Re Board of Education of Morrisburg and the Township of Winchester 664 Petrie v. Hunter — Guest v. Hunter, 2 O. E. 233, affirmed ; S. C, 20 C. L. J. 286. . 420 Phipps, Re, 1 0. R. 586 ; affirmed S. C, 8 A. R. 77 186 Pierce v. Canavan, 28 Chy. 356 ; affimued S. C, 7 A. R. 187 460 Pim V. The Municipal Council of Ontario, 9 0. P. 304, remarked upon. See SUsby V. Corporation of the Village of Dunn- ville, 8 A. R. 524 149 Piatt V. Ashbridge, 12 Chy. 105, followed. See Trinity College v. Hill, 2 0. R. 348 471 Plumb V. Steinhoflf, 2 0. R. 614 ; in appeal. . 332 Point Edward (Village of) and the Township of Sarnia, In re, 44 Q. B. 461, distin- guished. See Re Township of Sarnia and the Town of Sarnia, 1 O. R. 411 . . 495 Powell «. Peck, 26 Chy. 322 ; reversed S. 0., 8 A. R. 498 587 Provincial Ins. Co. v. Cameron, 31 C. P. 523 ; affirmed S. C. , sub nom. Provin- eial Ins. Co. v. Worts, 9 A. R. 56.. 7, 137 Queen Ins. Co. v. Parsons, 4 S. 0. R. 215 ; reversed S. C, 7 App. Cas. 96. . . . 115, 363 Qninlau v. Gordon, 20 Chy. Appx. 1, fol- lowed. See Hutton v. Federal Bank, 9 P. R. 568 386 V. Union Fire Ins. Co., 31 C. P. 618 ; reversed S. C, 8 A. R. 376 357 Quinton v. Frith, Jr. 2 Eq. 415, considered and not followed. See In re Taylor, 28 Chy. 640 429 Regina v. AUbright, 9 P. E. 25, overruled. See Eegina v. Hodge, 9 App. Cas. 117 120,332,754 CASES AFFIRMED, REVERSED, ETC. XXIX, Regina v. Belleau, 7 S. C. R. 53 S. C, 7 App. Oas. 473 .... V. Boucher, 8 P. E. 20 ; PAGE. ; reversed 121 affirmed S. C, 4 A. JK. 191 187, 402 V. Browne, 31 C. P. 484 ; affirmed S. C, 6 A. R. 386 3, 276 V. Doutre, 6 S. C, R. 342, affirmed by Her Majesty in Council 161, 596 V. Frawley, 46 Q. B. 153 ; reversed S. C, 7 A. R, 246, -(vliich decision in appeal was affirmed by Hodge v. The Queen, 9 App. Cas. 117 120, 332, 754 V. Hodge, 46 Q. B. 141, reversed S. C, 7 A. E. 246, which decision in appeal was affirmed, sub nom. Hodge v. The Queen, 9 App. Cas. 117 120 V. Levecque, 30 Q. B. 509, distin- guished. See Regina v. Wehlan, 45 Q. B. 396 105 V. Pipe, 1 0. R. 43, overruled in part. See Hodge v. The Queen, 9 App. Cas. 117 ■ 120, 332 ■ V. Williams, 19 Q. B. 397, followed. See Attorney-General 1). Midland R. W. Co., 3 0. R. 511 42 Q. B. .462, followed. 672 753 See Regina v. Howard, 45 Q. B. 346 . ex rel. Brine v. Booth, 9 P. R. 452 ; affirmed, S. C, 3 0. R. 144 . .480, 481, 754 ex rel Grant v. Coleman — Regina ex rel. Dwyre v. Lewis, 8 P. R. 497 ; affirm- ed S. C, sub nom. Regina ex rel. O'Dwyer v. Lewis 32 C. P. 104 482 ex rel. Grant v. Coleman — Regina ex rel. Uwyre v. Lewis, 8 P. R. 497 ; affirmed, S. C. , 46 Q. B. 175 ; 7 A. R. 619 — ex rel. Linton v. Jackson, 2 Chy. R. 18, dissented from. See Regina ex rel. 483 Clancy v. Mcintosh, 46 Q. B. 98 483 ex rel. McMillan v. DeLisle, 8 U. C. L J. 290, followed. See Regina ex rel. Brine v. Booth, 9 P. R. 452 482 ex rel. White v. Roach, 18 Q. B. 226, distinguished. See Regina ex rel. Clancy v. St. Jean, 46 Q. B. 77 481 Bicker v. Ricker, 27 Chy. 576 ; reversed S. C, 7 A. R. 282 772 Robins v. Victoria Mutual Fire Ins. Co., 31 0. P. 562; affirmed S. C, 6 A. R. 427 368 Robson V. Arbuthnot, 3 P. R. 313, distin- euished. See McDonough v. Alison, I p. R. 4 632, 764 Roche V. Jordan, 20 Chy. 573, followed, See McLean v. Bruce, 29 Chy. 507.. 305, 624 Rosenberger v. Grand Trunk R. W. Co. , 32 C. P. 349; 8 A. R. 482, affirmed in Supreine Court 679 Ross Estate, Ee, 8 P. R. 86 ; reversed S. 0., 5A. R. 82 „. McLay, 25 0. P. 190, overruled in part. See Macnamara v. McLay, 8 A. R. 319 V Simpson, 23 Chy. 552, distinguished See Rumohr v. Marx, 3 0. R. 167 lll,26o Russell r. Canada Life Ass. Co., .32 C. P. 256 ; affirmed S. C, 8 A. R. 716 . .379, 611 PAGE. Russell V. The Queen, 7 App. Cas. 829, ex- plained and approved. See Hodge v. The Queen, 9 App. Cas. 117 120 Ryan v. Ryan, 29 C. P. 449 ; reversed S. C, 4 A. R. 563, which decision in ap- peal was reversed by Supreme Court, 5 S. 0. R. 387 429 Samo V. Gore District Mutual Ins. Co., 1 A. R. 545, followed. See Klein et al. v. The Union Fire Ins. Co. et al. , 3 . E. 234 . . 371 Sands v. Standard Ins. Co., 26 Chy. 115 ; affirmed S. C, 27 Chy. 167 358,366 Saylea v. Brown, 28 Chy. 10, followed. See Sommerville v. Rae. 28 Chy. 618. .201, Saylor v. Cooper, 2 0. R. 398 ; affirmed S. C, 8 A. E. 707 Schibsby v. Westenholtz, L. R. 6 Q. B. 155 ; followed. See Beaty v. Cromwell, 9 P. B. 547 Schliehauf v. Canada Southern E. W. Co., 28 Chy. 236, distinguished. See Clouse V. Canada Southern E. W. Co. ,4 0. E. 28 Scott V. Burnham, 3 Chy. Ohamb. 402, fol- lowed. See Wright v. Way, 8 P. E. 328 Shanly v. Grand Junction E. W- Co., 4 0. E. 156, in appeal 449 Shaver v. Hart, 31 Q. B. 603, followed. See Ee Morse, 8 P. E. 475 235, 321 Shelley v. Goring, 8 P. E. 36, cited. See Godfrey v. Harrison, 8 P. R. 272 326 Shepherdson v. McCuUough, 46 Q. B. 573, remarked upon and approved. See Harris v. Mudie, 7 A. R. 414 . . . Silsby V. The Corporation of the Village of DunnviUe, 31 C. P. 301 ; affirmed, S. C, 8 A. R. 524 SUverthorn v. Hunter, 26 Chy. 390 ; affirm- ed S. C, 5 A. R. 157 774 ^ 5 A. R. 157, distin- 294 787 398 674 643 424 148 See Hamilton Provident and Loan Society v. Bell, 29 Chy. 203 .... 774 Sinclair v. Robson, 16 Q. B. 211, remarked upon. See Edgar v. Magee, 1 0. R. 287 78,4.38 Smith V. Goldie, 7 A. R. 628, affirmed in Supreme Court 586 V. Merchants' Bank, 28 Chy. 629; re- 249 699 versed S. C, 8 A. R. 15, but the decision of the Court of Appeal was reversed ; S. C, 8 S. C. R. 512 83 Sowden v. Standard Fire Ins. Co. , 44 Q. B. i 95 ; affirmed S. C, 5 A. R. 290 356 SpaEFord v. Hubbell, E. & J. Dig. col. 1517, explained. See Buist v. McCombe et al., 8 A. E. 598 213 Springfield Fire Ins. Co. v. Allen, 43 N. Y. 387, distinguished. See Klein et al. v. The Union Fire Ins. Co. et al., 3 0. R. 234 371 Staflford (Township of) v. Bell, 31 C. P. 77 ; reversed S. C, 6 A. R. 273 497, 752 Stammers v. O'Donohoe, 28 Chy. 207 ; 8 A. E. 161, affirmed in Supreme Court 20 C. L. J. 260 50, 717, 740 XXX. CASES AFFIRMED, REVERSED, ETC. Standly v. Perry, 23 Chy. 607 ; reversed S. C, 2 A. R. 197 ; 3 S. 0. R. 356 781 St. Aubyn v. Smart, L. R. 3 Cliy. 646, dis- tinguishbd. See Re McOaughey & Walsh, Solicitors, 3 0. R. 425 40 St. Michael's College v. Merrick, 1 A. R. 520; 26 Chy. 216, followed. See Gilchrist v. Wiley, 28 Chy. 425 33 Stephenson v. Bain, 8 P. E. 166 ; reversed S. C, 8 P. R. 258 280, 727 Synod v. DeBlaquiere, 27 Chy. 536 ; affirm- ed on appeal, 30 June, 1880 110, 463 Taylor, Re, 8 P. R. 207 ; reversed S. C, 28 Chy. 640 429 Thomas v. Hall, 6 P. E. 172, commented on See Forrester v. Thrasher, 9 P. R. 383 ; 2 0. R. 38... 65 Thomson v. Torrance, 28 Chy. 253 ; affirmed S. C, 9 A. R. 1 795, 814 Totten V. Watson, 17 Chy. 235 ; followed See Ee Houston — Houston v. Houston, 2 0. E. 84 462 Trinity College v. Hill, 2 O. E. 348; revers- ed S. C, 20 0. L. J. 262 471 Trust and Loan Co. v. Lawrason et al., 45 Q. B. 176 ; reversed S. C, 6 A. R. 286, which judgment in appeal was affirmed by Supreme Court 212, 301 Turlev v. Benedict, 31 C. P. 417 ; reversed S". C, 7A. R. 300 .., , 229 Turner v. Lucas, 1 0. R. 623 ; affirmed by Court of Appeal 307 V. Smith, 26 Chy. 198, considered and followed. See Campbell v. Camp- bell, 29 Chy. 252 305, 620 Union Fire Ins. Co. v. Fitzsimmons et al. , 32 C. P. 602, followed. See Union Fire Ins. Co. V. O'Gara, 4 0. R. 359 136 Valinu Langlois, 3 S. C. R. 1, leave to ap- peal refused. See 5 App. Cas. 115. .. . 117 VanNorman v. Beaupre, 5 Chy. 599, cited. See Lougheadu. Stubbs, 27 Chy. 387 .227, 740 V. Grant 27 Chy. 498, followed. See Wood v. Hurl, 28 Chy. 146 745 Vansickle et al. v. Vansickle et al., 1 0. R. 107 ; reversed S. C, 9 A, R. 352 796 VanA''elsor et al. v. Hughson, 45 Q. B. 252 ; affirmed S. C. 9 A. R. 390 255, 431 Vogel V. Grand Trunk R. W. Co., 2 0. R. 197 ; affirmed 20 C. L. J. 347 685 Walker v. Hyman, 1 A. R. 345, followed. See McDonald v. Forrestal, 29 Chy. 300 714 Walton et ux. v. Corporation of the County of York, 30 C. P. 217 ; reversed S. C. 6 A. R. 181 789 Watson V. Lindsay, 27 Chy. 253 ; affirmed S. C, 6 A. R. 609 426, 456 PAGE. Werderman v. Soci^t^ G^n^ral d'Electricite, L. R. 19 Chy. D. 246, distinguished. See McClenaghan v. Grey, 4 O. E. 329. 110 West Huron Election, In re (Dom.) — M'.tchell V. Cameron, 1 0. R. 433 ; re- versed S. C, 8 S. C. R. 126 315, 563 Western Assurance Co. v. Provincial Ins. Co., 26 Chy. 561 ; affirmed S. C, 5 A. R. 190 353 Canada Loan and Savings Co. v. Dunn, 9 P. R. 499; reversed S. C, 9 P. R. 587 230, 336 Westminster Case, 1 O'M. & H. 89, fol- lowed. See Welland Election (Ont.) — Beatty v. Currie, 1 H. E. C. 47 529 Beal V. Smith, L. R. 4 C. P. 145 followed. See West Elgin Election (Ont. ) — Oascaden v. Munroe, 1 H. E. C. 223 566 White V. Brigga, 15 Sim. 17 ; S. C, 2 PhU. 583, distinguished. See Clow v. Clow, 4 0. R. 355 : 799 ■;;. Township of Gosfield, 2 0. R. 287 ; in appeal 445 Wigan Case, 1 O'M. & H. 192, adopted. See East Toronto Election (Ont.) — Ren- nick V. Cameron, 1 H. E. C. 70 542 Williams v. Corby, 5 A. R. 626 ; reversed S. C, sub nom. Corby et al. v. Wil- liams, 7 S. C. R. 470 112 Ee, 7 P. E. 275, approved. See Regina v. Browne, 31 C. P. 484 27; Wilson V. Standard Fire Ins. Co. , 29 C. P. 308 followed and approved. See May V. Standard Fire Ins. Co., 5 A. R. 605 366 Workman v. Robb, 28 Chy. 243 ; affirmed S. C, 7 A. E. 389 293, 425 Wright V. London Life Ass. Co., 29 C. P. 221 ; 5 A. R. 218 ; affirmed S. C, sub nom. London Life Ins. Co. v. Wright, 5S. C. R. 466 149, 380 V. Incorporated Synod of the Diocese of Huron, 29 Chy. 348; reversed S. C, 9 A. R. 411 108, 145, 148 Xenos V. Wickham, L. R. 2 H. L. 396, dis- tinguished. See Western Assurance Co. V. Provincial Ins. Co., 5 A. R. 190. 353 Yarmouth (Corporation of) v. Simmons, L. R. 10 Chy. D. 518, followed. See Standly et al. v. Perry, 3 S. C. R. 356 781 York (County of) v. Toronto Gravel Road and Concrete Co., 3 0. R. 584 ; in ap- peal 129 Young 11. Christie, 7 Chy. 312, followed. See Labatt v. Bixel, 28 Chy. 593. .... . 307 7 Chy. 312, followed. See Heaman v. Seale, 29 Chy. 278 307 ABBREYIATIONS. A. J. Act Administi-ation <}f Justice Act App. Cas Appeal Cases, House of Lords and Privy Council. A. R Appeal Reports. C. P Common Pleas Reports. C. F. D Common Pleas Division. C. L. J Canada Law Journal. C. S. C Consolidated Statutes of Canada. C. S. U. C Consolidated Statutes of Upper Canada. Chy Chancery Reports. Chy. D Chancery Division. D. or Dom Dominion of Canada. Ct. O General Orders of the Court of Chancery. H. E, C Hodgins' Election Cases. Imp Imjjerial Statutes. O. or Ont Province of Ontario. O. R Ontario Reports. P. R Practice Reports. Q. B Queen's Bench Reports. Q. B. D Queen's Bench Division. R. &. J. Dig Robinson & Joseph's Digest. R. G Rules of Court. R. S. O Revised Statutes of Ontario. S. C Same Case. S. C. R Supreme Court Reports. U. C. L. J Upper Canada Law Journal. ADDENDA ET CORRIGENDA. Column. 35 — 10 lines from bott\ 46- 8 71- 108- from top, -24 28 -10 40 165— 6 263 — at foot of column, add See 265 — after 5tli line add, See Wooi 273 — 18 linea from top, for 295—29 364^43 384—25 423—17 624—20 359 447 97 20 C. from bottom. read 369. p. 47. p. 765. 19 C. For-Cases now in Appeal and which have \ See " Table of Cases, Affirmed, . L. J. 43 Q. B. " 44 Q. B. not reported " 2 0. E. 560. 508 " 566. •Mett V. Anderson, 8 P. R. 387, p. 640. Hurl, 28 Chy. 146, p. 745. read 639. 7 A. R. A. E. 87. 570. 19 Q. B. 648. reported in Appeal, •ersed," &c. /o/a 7/3/ DIGEST 01' THE REPOllTED CASES IK THE SUPERIOR COURTS OF ONTARIO, AND THE SUPREME COURT OF CANADA, CONTAINED IN V0LUME8 45-46 QUEEN'S BENCH. 27-29 CHANCERY. 1-4 ONTARIO REPORTS. 31-32 COMMON PLEAS. 5-8 APPEAL REPORTS. 8-9 PRACTICE REPORT'S . 3-7 SUPREME COURT REPORTS. 1 HODGINS'S ELECTION CASES ABANDONMENT. I. Or Execution — See Execution. II. Of Ships— /See Insubancb. ABATEMENT. I. Pleas in— See Pleading. II. Of Suits — ^5^ee Practice. . III. Of Pubchasb Momey on Sale of Land — See Sale of Land by Order of the Court — Specific Performance. ABSCONDING DEBTOR. I. Attachment, 1. II. Service on — See Practice. I. Attachment. The affidavits upon which the order for a writ of attachment against an absconding debtor was issued were not styled in any court, although sworn before a commissioner for ta'king affidavits in the Q. B. , who appended to his signature the words, "A Com. in B. R.," &o. : — Held, that the affidavits were sufficient. EUerby v. Walton, 2 P. R. 147, followed : Hart v. Ruttan, 230. P. 613, not foUowed. Scott v. Mitchell, 8 P. R. 518. — Armour. If a creditor has reasonable grounds for infer- ring his debtor's intention to defraud his credi- tors, a writ of attachment will not be set aside. lb. In an action at the suit of the Crown, an order was made for a writ of attachment against de- fendant as an absconding debtor. Service ot the writ was accepted by his attorney, who entered an appearance to the writ : — Held, that this was a useless proceeding, and that the defendant should have put in special bail. Regina v. Stewart, 8 P. R 297.— Osier. Held, that the affidavit of debt, which in this case was made by the County Crown attorney, was sufficient. lb. Held, that the . forfeiture of a recognizance to appear was a debt sufficient to support the ap- pUcation for an attachment under the Abscond- ing Debtors' Act, and that such writ may be granted at the suit of the Crown, where the de- fendant absconds to avoid being arrested for a felony. lb. Held, that the amount for which special baU is to be put in need not be mentioned in the order for the writ. lb. On an application to set aside the writ : — Held, that any defect in the materials on which it was granted, might be supplied by the affidavits used on such application. Held, also, that defendant was precluded by having accepted service of the writ, with knowledge of certain alleged irregu- larities, and delayed moving until after the time for pleading had expired, lb. Held, that the object of see. 20 of the Ab- sconding Debtors' Act is to save harmless the bona fide attaching creditor, whose writ has had the effect of saving and protecting the debtor's property for the execution creditor. In this case there was a fund, not exigible under the execu- tion, to which the attaching creditors alone were entitled, and several attachments, of which the ACTION AND SUIT. plaintiflf's was third in time, and the whole pro- perty had been seized and sold or retained under the first writ. The plaintiff, without disclosing these facts, obtained an order under the above sec. 20, that all costs of his attachment should be paid out of the debtor's assets before the exe- cution, and under it taxed his whole costs of suit. The order waa set aside, for had the facts been disclosed it should not have been made, and in any event only the costs of suing out and exe- cuting the attachment were taxable. The appli- cation to set aside such order was held not to be an appeal, ffughea v. Field, 9 P. E. 127.— Osier. ABSTRACT OF TITLE. Sev Quieting Titles— Rkoistry Laws. ACCESSORY. An accessory before the fact is liable to extra- dition, but an accessory after the fact is not. Ilegina v. Browne, 6 A. E. 386 ; 31 0. P. 484. ACCIDENT. I. Nequoenoe — See Nbolioenoe. II. iNSTJBAlfCE AGAINST — See INSURANCE. ACCOMPLICE. See Accessory. ACCRETION, See Water and Water Courses. ACKNOWLEDGMENT OF TITLE. See Limitation oe Actions and Suits. ACQUIESCENCE. See Estoppel. Of husband in disposal of wife's earnings. See Carroll v. Fitzgerald, 6 A. R. 93. Of infant in contract made during minority. See Foley v. Canada Permanent Loan iSc Savings Co., 4 0. E., 38. Of Corporations. See Lett v. St. Lawrence & Ottawa R. W. Co. , 1 0. R. 545 ; Corporation of the Tovmsldp of Pembroke v. Canada Central S. W. Co., 3 0. R. 503. ACT OF PARLIAMENT. See Constitutional Law — Statutes. ACCORD AND SATISFACTION. See Guarantee and Indemnity — Mortgage. Held, that the evidence in this case was not sufficient to establish an allegation of accord and satisfaction. See Weldon v. Vaughan et at, 5 S. C. R. 35. II, ACCOUNT. Accounts beeobb the Master. 1. Qenerally — See Practice. 2. Mortgage Suit! — i^ec Mortgage. Executors and Administrators' Ac- counts — See Executors and Admin- istrators. Right of agent to an account of the transac- tions of the principal and an inspection of books, notwithstanding E. S. 0. o. 132, s. 3. See Rogers v. Ullmann, 27 Chy, 137. Alteration of accounts — Criminal liability. See In re Hall, 9 P. R. 373 ; 8 A. R. 31. ACTION AND SUIT. I. Notice of Action, 4. II. Cause of Action, 5. III. Miscellaneous Cases, 5. IV. By and 'against Particular Persons. 1. By Assignee of Chose in Action — See Chose in Action. 2. By and against other Persons— See. The several Titles. V. Injunction to Restrain — See Injunc- tion. VI. Release of — See Release. I. Notice of Action. Sec. 231 of the Division Courts Act, R. S. 0. c. 47, enacts that any action or prosecutionj against any person for any thing done in pur- suance of the Act shall be commenced within six months after the fact was committed, &c., and notice in writing of such action, and of the cause thereof, shall be given to the defendant one month at least before the commencement of the action : — Held, that personal advice was not required, but that service on the wife at the defendant's residence was sufficient. Hanns v. Johnston, 3 0. R., C. P. D. 100. Held, that the court in which the action is to be brought need not be stated in the notice ; but even if required, Semble, that the statement in the notice that the action would be brought in the ADMINISTRATOR High Court of Justice, without naming the par- ticular division, was sufficient. Tb. Held, that in computing the time in which the jvotion must be brought the day on which the fact was committed must be excluded, so that an action commenced on the 5th June, for an act -committed on the 5th December, was in time. lb. To registrars. See Ontario Industrial Loan -and Investment Co. v. Lindsey et al, 3 0. R. 66. II. Cause of Action. As to place where cause of action arose on lireaoh of contract. See Oildersleeve v. McDougall, .31 C. P. 164 ; 6 A. R. 553. See Caswell v. Murray et al., 9 P. R. 192. III. Miscellaneous Cases. A mortgagee proceeded on the same day to foreclose the property of the mortgagor and his sureties, by several bills upon their respective mortgages, and to sue at law in different actions the same parties on notes held by the plaintiffs, "to which the mortgages were collateral: — Held, that only one suit in equity was necessary, as all parties might have been brought before the Court therein, all remedies given which might have been ■obtained at law, and all rights more conveniently adjusted between the parties in one than in several suits ; and the court would not be de- terred from granting relief by the circumstance of a decree being complicated. Merchants' Bank v. Sparkes, 28 Chy. 108. QuEere, whether the clerk of a municipality ia only liable to a conviction under sec. 189 of the Assessment Act (R. S. 0. u. 180) at the suit or upon complaint of the crown, or to a civil action by the plaintiffs as well. Corporation of the Town of Peterbornugh v. Edwards, 31 0. P. 231. One M., and the defendants as his surf ties> executed a bond conditioned for the good be" haviour of M., a clerk of the plaintiffs at Mon- treal. The bond was executed at Hamilton by the defendants who were resident there. M. made default at Montreal and absconded. Pro- ceedings were taken against the sureties without joining M. Per Spragge, C. Though the breach occurred in Montreal, and there was no cause of -action till default, yet there was a potential equity in the defendants, coeval with the execu- tion of the bond, which became a right of suit on the defaultof M. : and there was also an implied contract on the part of M. , upon execution of the bond, to repay to his sureties any money that they might have to pay by reason of his default. Exchange Bank v. Springer ; The same Plaintiffs V. Barnes, 29 Chy. 270. The contract in this case having been made between appellant and respondents only, and being a contract of agency apart from any ques- tion of ownership, the action was properly brought by appellant in his own name : Taschereau and Owynne, J J., diss. W.eldmiY. Vaughan et al., 5 S. C. R. 35. Members of charitable and provident societies should not be allowed to litigate their grievances within the society in courts of law until they have exhausted every possible means of redress afforded by the internal regulations of their societies. Essery v. Court Pride of the Dominion, 2 O. R., Chy. D. 596. Therefore, where the plaintiff being expelled from the Ancient Order of Foresters, filed his bill for restitution thereto on the ground of illegal expulsion, but it appeared that the rules of the society provided certain internal tribunals to which he might have appealed for redress, hut had not, this court refused to interfere. lb. It is within the power of a solicitor to settle a suit on behalf of his client, where the settlement is in good faith. McDonald v. Field, 9 P. R. 220 — Dalton, Master. But this case was over- ruled by the Divisional Court of C. P., not re- ported. The action was brought by one F. and, his wife, against Archibald F., to recover nine years' arrears, under an annuity deed made by the defendant to secure $120 a year to the plaintiffs during their lives. Janet F., the defendant's wife, had joined in the annuity deed to bar her dower. Subsequently the defendant Archibald F., abandoned his wife and absconded. Janet F. , then brought an action for alimony, and now applied to be let in to defend this action, on the ground that it was coUusively brought for the purpose of defeating her suit for alimony, and to deprive her of her dower in the lands : — Held, upholding the order of the Master in Chambers, that Janet F., was entitled to be admitted to defend. — Ferris et ux. v. Ferris, 9 P. B. 443. — Dalton, Master — Ferguson. Action for the removal of a registered instru- ment wrongfully registered and for damages. See Ontario Industrial Loan and Investment Co. V. Lindsey et al., 3 0. R., Q. B. D. 66. A creditor's assignee, not himself a creditor, cannot sustain an action to set aside a fraudu- lent conveyance or transfer made by the debtor, prior to the assignment under which he claims to be such assignee. — Lumsden v. Scott, 4 O. R.. Chy. D. 323. If a person borrow money from an innocent lender and employs it in preferring a creditor, the lender is not debarred from suing for repay- ment. See Court v. Holland, et al., 4 O. R, Chy. D. 688. ADDING PARTIES. See Pleading. ADMINISTRATION. See Executors and Admikistkatoks. ADMINISTRATOR. See Executors and Administrators. ALTERATION. 8 ADMISSIONS. See Evidence. ADULTERY. Particulars ordered of general charges of adul- tery in the statement of claim in an alimony suit. See Rosensiadt v. Sosenstadt, 9 P. K. 311. —Boyd. with their preparation, although the costs of the suit were given him. Burnham v. Oarvey, 27 Chy. 80. In the plaintiff's a£Bdavit on a motion to sign final judgment under Rule 80, 0. J. Act, the word "defence" had been struck out, and the word ' ' appearance" interlined, without being initialed by the commissioner before whom the affidavit was sworn : — Held, under rule 468 0> J. Act, that the affidavit could not be read. Boyd V. McNutt, 9 P. R. 493.— Dalton, Master. ADVERTISEMENT. Publication of MuNrciPAL By-law- CIPAL COKPOBATIONS. -See MuNi- The fact that an intestate whose estate is being partitioned, has been dead for 45 years does not warrant a master in dispensing with the usual advertisement for creditors. Biggar v. Biggar, 8 P. R. 488.— Blake. Notice for a call on stock under 12 Vict. c. 157 s. 27, published in a newspaper in one dis- trict is sufficient to render the shareholders re- siding in that district liable to pay the call, notwithstanding that the notice may not have been published in other districts where stock is held. Provincial Ins. Co. v. Cameron, Execu- trix ; and Six other Cases, 31 C. P. 523 ; affirmed 9 A. R. 56. AFFIDAVIT. An affidavit entitled in the Q. B., and sworn before the Judicature Act came into force, might under sec. 11, sub-sees. 2 and 3, be made the foundation of an order in the Q. B. Division. Elliot v. Capell, 9 P. R. 35. — Dalton, Master. — Osier. Where the affidavit for an order to arrest, was intituled in the High Court of Justice but not in the proper Division : — Held, that the objection was clearly amendable. Robertson v. Coulton, 9 P. E. 16.— Osier. The affidavits upon which the order for awrit of attachment against an absconding debtor was issued, were not styled in any court, although sworn before a commissioner for taking affidavits in the Q. B., who appended to his signature the words, "A Com. in B. R., &o,"— Held, that the affidavits were sufficient : Ellerby v. Walton, 2 P. R. 147, followed ; Hart v. Ruttan, 23 C. P. 613, not followed. Scott v. Mitchell, 8 P. R. 518. — Armour. The affidavit of bona fides in a chattel mortgage purported to be sworn before "T. B. F.." with- out any addition. The affidavit of execution was sworn before the same commissioner, his name being followed by the words, ' ' A Com- missioner in B. R., &c." — Held, no objection to the affidavit of bona fides. Hamilton v. Harrison 46 y. B. 127. Where affidavits used on a motion were badly written, scarcely legible and difficult to decipher, the court refused the plaintiff all costs connected AGENT. I. Generally — See Principal and Aoent. II. Of Attohney — See Attorney and Solici- AGREEMENT. See Contract. ALIEN. I. Service on — See Practice. II. Right to Vote — See Parliament. Certain aliens had taken the oaths of allegi- ance, &c., before a justice of the peace of a town, which oaths were administered to them in a town- ship, but within the same county : — Held, that under the Alien Act. 34 Vict. c. 22, s. 2, Dom., the justice of the peace in administering the oaths, was acting ministerially and not judioij ally ; and that the oaths were properly admin- istered. John Johnson's Vote — Lincoln Election, Pawling v. Rykert, 1 H. E. 0. 500. See Butler et al. v. Rosenfeldt ; Swetzer et at. V. Rosenfeldt, 8 P. R. 175 : SmUh v. Smith, 9 P. R. 511. ALIMONY. See Husband and Wife. ALLUVION. See Water and Water Courses. ALTERATION. I. Of Bills and Notes — See Bills of Ex- change AND Promissory Notes. II. Of Deeds — See Deed. Alteration of accounts. Criminal liability- See In re Hall, 9 P. R. 373 ; 8 A. R. 31. APPEAL. 10 AMENDMENT. I. Or Pleadings — See Pleadi.ng. II. Practice — See Peaoticb. III. Oe Petition and Particulars in Trials OE CONTBOVBETED ELECTIONS— )See PAR- LIAMENT. ^Vllere pending the investigation of the title under the Quieting Titles Act, the petitioner laid out the land in village lots and registered a plan : — Held, that the petition must be amended in accordance with the plan.- Re Morse, 8 P. R. 475. — Blake. Amendment of sentence in a conviction by the General Sessions of the Peace. Effect of. See McLellan v. McKinnon, 1 0. R., Q. B. D. 219. There having been a, misnomer in the names of the applicants for a mandamus per Armour and Cameron, JJ., such misnomer not having been objected to on the argument below might be amended. Per Hagarty, O.J., in such a case no amendment should be granted as a matter of ■discretion. In re Hiqh School Board of High School District No. 4, of the U. O. of Stormont, Dimdas, and Olenrjarry, and (he Municipal Cor- poration of the Township of Winchester; and ano- ther Case, 45 Q. B. 460. Held, that an information which includes three •distinct offences of keeping for sale, selling, and bartering intoxicating liquors, which are pro- hibited by sec. 99 of the Canada Temperance Act, 1878, contravenes 32-33 Vict. c. 31, s. 25, which provides that every information shall be for one offence only, but held that such informa- tion may be amended by striking out all the offences charged except one ; and that such an amendment may be made after the case has been closed and reserved for decision. Regina v. Bennett, 1 O. R-, Q. B. D. 445. When a bridge was wrongly described in an indictment as being in two townships: — Held, that though this could have been amended at the trial it could not be amended on a motion to set -aside the verdiet or for a new trial. Regina v. The Corporation of the County of Oarleton, 1 0. R., q. B. D. 277. Where the affidavit for an order for arrest was intituled in the High Court of Justice, but not in the proper Division : — Held, that the objection was clearly amendable. Robertson v. CouUon, 9 P. R. 16.— Osier. The capias issued after action was in the form formerly used for the commencement of an action : — Held, amendable. lb. Power of superior court judge to amend a con- viction. See Regina -v. Allbright, 9 P. R. 25— Osier. Of an information for violation of the Canada Temperance Act 1878. See Regina v. Bennett, 3 O. R., Q. B. Div. 45. ANCIENT DOCUMENTS. See BviDENCB. ANIMALS. I. iMTOUNDINa AND KEEPING - ciPAL Corporations. -See MuNi- II. Injury lo—See Railways and Railway- Companies. ANNUITY. See Will. On the 18th October, 1866, the owner of real estate granted an annuity thereout of f 40, with power of distress in case of default. Only one year's annuity was paid, and in October, 1877, the grantor, by writing, acknowledged the amount then due. Oa a bill filed by the annui- tant claiming ten years' arrears, with interest thereon : — Held, that the power of distress was not such a penalty as took the case out of the general rule that interest will not be allowed on arrears of annuity ; and that notwithstanding the written admission by the grantor of the amount due under the deed, the annuitant could recover only six years' arrears without interest, as against a puisne incumbrancer who had duly registered his conveyance. Crone v. Crone, 27 Chy. 425. ANSWER. See Pleading. ANTE-NUPTIAL SETTLEMENT. See Fraudulent Conveyances. I. IL IIL ly. V. VI. VII. VIII. IX. X. XI. XII. APPEAL. To Privy Council — See Privy Council. To Supreme Court — See Supreme Court. To Court op Appeal — See Court of Appeal. To Divisional Court — See Divisionai. Court. Prom Countv Courts — See County Courts. From Division Courts— /See Division- Courts. From Judge in Single Court — See Divisional Court. From Clerk of the Crown and Pleas — See Practice. From Master in Chambers and Master IN Ordinary — See Practice. From Referee — See Practice. From Magistrates- /See Sessions. From Awards— /See Arbitration and Award. 11 AEBITRATION AND AWARD. 12 XIII. Fbom Assessment— See Assessment and Taxes. XIV. In AiPLicATiOiVS fok New Tkial— /See Nbw Tkial. XV. In Trial oe Cokthoverted Elections — See Parliament. XVI. Payment or Money out of Court pend- ing Appeal — See Costs. Recovery back of money paid into court as security for appeal — Interest. See The Citizens' Ins. Go. V. Parsons, 32 C. P. 492. Quaere, can the Dominion Parliament give an appeal in a case in which the Legislature of a Province has expressly denied it. Danjou v. Marquis, 3 S. C. K. 251. In penal statutes questions of doubt are to be construed favourably to the accused, and where the court of first instance in a quasi criminal trial has acquitted the respondent the appellate court ■will not reverse the finding. North Ontario Elec- tion^McCaskill v. Paxton, 1 H. E. C. 304. An appellate court will not, except under spe- cial circumstances, interfere with the finding of the court of first instance on questions of fact de- pending on the veracity of witnesses and con- flicting evidence. SctUon Election — Bussell v. Barber, 1 H. E. C. 283. Per Grwynne, J. A court of appeal should not reverse the finding upon matters of fact of the judge who tried the cause and had the oppor- tunity of observing the demeanour of the wit- nesses, unless the evidence be of such a character as to convey to the mind of the judges sitting on the appellate tribunal the irresistible convic- tion that the findings are erroneous. Ryan v. Ryan, 5 S. C. K 406. See also, Little v. Brunlcer, 28 Chy. 191/ The Picton—IIcCuaig et al. v. Keith, 4 S. 0. B. 648. Per Gwynne, J. It is a point fairly open to enquiry in a court of appeal whether or not, as in this case, the inferences drawn from the evi- dence by the judge who tried the case without a jury, were the reasonable and proper inferences to be drawn from the facts. Gallagher v. Tay- lor, 6 S. 0. R. 368. In an action of damages, if the amount award- ed in the court of first instance is not such as to shock the sense of justice and to make it appar- ent that there was error or partiality on the part of the judge (the exercise of a discretion on his part being in the nature of the case required) an appellate court will not interfere with the dis- cretion such judge has exercised in determining the amount of damages. Levi v. Reed, 6 S. C K 482. The court being equally divided, the judgment of the court below was not altered. McLeod V. The New Brunswick Railway Co., 5 S. 0. R. 281. See also, Moore v. The Connecticut Mutual Life Assurance Co. of Hartford, 6 S. C. R. 6,34 • CoUm. Morgan, 7 S. C. R. 1 ; McOallum v. Odette', lb. 36 ; Murray et al. v. The Canada Central R. W. Co., 7 A. R. 646 ; In re Hall, 8 A. R. 135 ; The Canada Central R. W. Co. v. McLaren, 8 A. R. 564. The plaintiff was permitted to proceed witli a new irial pending an appeal where he shewed that he had already been inconvenienced by delay, that further delay would prejudice him financially, and that by it he might lose import- ant oral evidence. McDonald v. Mnrray et al.. 9 P. R.;464.— Winchester, Registrar Q. B. D.— Hagarty. An interim injunction will not be granted in aid of a plaintiff, to preserve the subject matter of his action in statu quo long enough to enable him to obtain the decision of an appellate court on points already decided in other cases, against his contention, in courts of first instance. Wyld V. McMaster, 4 0. R., Chy. D. 717. As to separate appeals to different courts. See Hately et al. v. Merchants' Despatch Co. et al., 4 0. R,, Q. B. D. 723. APPOINTMENT. Power oe — See Will. APPROPRIATION OF PAYMENTS. See Payment. ARBITRATION AND AWARD. I. Submission or Rbperencb. 1. Wliat may be referred, 13. 2. Reference under C. L. P. Act, and 0. J. Act, 13. 3. Malting Submission a Rule of Court, 14. 4. Restraining Arbitrators from proceid- ing, 14. II. Arbitrator. 1. Power and Duty of. (a) Directing time and manner of Pay- ment, 15. (b) Coste, 16. III. Umpire or Third Arbitrator, 16. IV. Examination or Witnesses, 17. V. Award. 1. Time of malcing, 17. 2. Reference hack, 18. 3. Appeal from, 18. VI. Staying and setting aside Proceed- ings ON Award. 1. Misconduct of Arbitrators,!^. 2. Time for moving, 19. VII. Enforcing Award, 19. Vm. Costs, 20. IX. In Particular Cases. 1. Arbitration of questions arising betweim members of Incorporated C ' ' '"^ 20. 13 ARBITRATION AND AWARD. 14 2. Reference of hag under Insurance Po- licies — See Insttkance. 3. Under The Municipal Act—See Mxjm- (JIPAL COKPORATIONS. 4. Under Railway Acta — See Railways AND Railway Companies. I. Submission or Reference. 1. What may he rej erred. Reference directed to determine the amount of damages snstaioed by the plaintiff under an agreement to serve defendant, as manager of a tannery, for six years, the agreement reciting that plaintiff was to manage ttie works and the defendant was to furnish the capital, for failure of the defendant to perform his part of the agree- ment, and for the dismissal of the plaintiff. Blahe v. Kirhpatrich, 6 A. R. 212. 2. Reference under C. L. P. Act and 0. J. Act. Quaere, whether a reference by consent by rule of court or judge's order is within sec. 205 of the 0. L. P. Act. McCarthy v. ArbuchU, 31 C. P. 405. Held, on an application to refer to arbitration •in action on the common counts, that where a material question of fact was in dispute, the case was not a proper one in which to make an order for compulsory reference. Gannon v. Gibh, 8 P. R. 115.— Dalton, Q.C. An action for an account and delivery up of a trust estate was referred at the trial to the master at Picton, by an order drawn up on reading the pleadings and hearing counsel ; the master to have all the powers of a judge as to certifying and amending pleadings, &;c., and to enquire and report as to the plaintiff's right to bring an action, the defendant to have the right to claim all such allowances for his care, &c. , as in the master's opinion he should shew himself entitled to : costs to be in the master's discretion, and the whole report to be reviewed or appealed from, accord- ing to the statute in that behalf : — Held, a refer- ence under sec. 189 of the 0. L. P. Act (not under sec. 47, or 48 of the Judicature Act), and that an appeal from the finding of the master was therefore set regularly down under the pro- visions of that Act to be heard before a single judge in court. Cumming v. Low, 2 0. R. 499. — Osier. Remarks as to the effect and application of sees. 47 and 48, above referred to, and as to the proper form of the order of reference, lb. At the trial the following order of reference was made : "Upon hearing the solicitors on both sides, and by their consent, I order that all matters in difference between the parties in this cause be referred to the certificate of the local master of this court at Orangeville, with all the powers as to certifying and amending of a judge of the High Court of Justice, and that the costs of the suit and of the reference be in the discre- tion of the said local master " : — Held, that the master was to act as an arbitrator under the C. L. P. Act, not as an officer of the court under sees. 47, 48 of the 0. J. Act, and that defendant might sign judgment on his report. Wallace v. Whaley, 9 P. R. 2^8.— Dalton, Master. 3. Making Submiaaicm a Rule of Court. By an agreement made between L., a builder, and the building committee of a religious body, all previous contracts and agreements were ter- minated and surrendered, and L, was to forego all right to compensation except under the agree- ment. One E. was to inspect and value the work already done on the building, and if not according to plans and specifications, L. was to reetifj' the same at his own expense. E. was to value the building in its present condition, and his award was to be final, and to be the sole amount due to L. to date ; he was also to inspect and value the building material on the ground, which was to be paid for at the original cost : — Held, that the effect of the agreement was, that a price to be fixed by E. was to be paid for L. 's works, that E. was not an arbitrator ; and that the agreement could not be made a rule of court as a submission to arbitration. In re Langman and Martin et al., 46 Q. B. 569. When a submission to arbitration provides for making the submission a rule of any particular court, no suit or proceeding can be had in any other court to set aside the award, whether such submission has or has not been made a rule qf the court named in it. Direct Cable Co. v. Dominion Telegraph Co., 28 Chy. 648. The plaintiff and defendant agreed in writing to submit certain matters in dispute to an arbi- trator, to be selected by a person named in the submission, who subsequently appointed the arbitrator verbally : — Held, per Patterson and Morrison, JJ. A., affirming the judgment of Osier, J., 30 0. P. 466, that the fact that the arbitrator was verbally appointed did not prevent the submission from being made a rule of court. Per Barton, J. A., and Armour, J., that the appointment not being in writing, it was a parol submission and could not be made a rule of court. Cruickshank v. Corbey, 5 A. R. 415. The agreement for submission contained a clause that it should be made a rule of the Court of Queen's Bench in England, and all proceedings thereunder should be governed as in Great Bri- tain by the provisions of the English 0. L. P. Act : — Held, that this formed no objection to the jurisdiction of our Court of Chancery. The Direct United States Cable Co. (Limited) v. The Dominion Telegraph Co. of Canada, 8 A. R. 416 ; 28 Chy. 648. 4. Restraining Arbitrators from Proceeding. Before a submission has been made a rule of court, a court of equity has jurisdiction to restrain an arbitrator improperly appointed from entering upon the duties of such arbitration. Direct Cable Co. v. Dominion Telegraph Co., 28 Chy. 648. In a suit in the Court of Chancery to set aside the nomination by the defendants of an arbitrator on behalf of the plaintiffs for irregularity in such nomination: — Held, that the arbitrators being necessary parties and the defendants resident in 15 ARBITRATION AND AWARD. U this country, tlie ai bitrators, though resident out of the jurisdiction, were properly made defen- dants to the bill. lb. The object of a cross bill ordinarily was to obtain discovery on the part of the plaintiff in the cross cause to be used iu the original cause ; or in order to obtain full relief iu respect of the subject matter of litigation in the original cause. Therefore, where a bill was filed to restrain arbitrators on the ground of irregularity in their appointment, from acting in respect of matters in dispute between the plaintiff and defendant companies and the defendants by their answer asked that if the court entertained the case it should afford them relief in respect of the mat- ters in dispute between the companies ; — Held, that this was not the proper office of a cross bill, and therefore could not be set up as a subject of cross relief by the answer. lb. The defendants also set up by way of defence and as a ground of demurrer to the plaintiffs' bill to restrain proceedings by the alleged arbitrators, the pendency of another action in New York for the same purpose ; but — Held, that this could only form a ground for application to stay pro- ceedings, or to compel the plaintifis to elect be- tweenSthe two tribunals ; and, Semble, that under the circumstances set out in the report of the case, it could not be taken advantage of iu any way. The Direct United States Cable Co. (Lim- ited) V. Tlie Dominion Telegraph Co. of Canada, 8 A. E. 416; 28 Chy. 648. II. Akbiteator. 1. Power and^Duty of. (a) Directing Time and Manner of Payment. Where the reference was only for the purpose of ascertaining and awarding the damages sus- tained by the plaintiff by a fire negligently set by the defendant, and the defendant agreed to pay the amount awarded ; and it was provided that the costs of the arbitrators and award, &c., should be paid by the party entitled thereto, in whose favour the award should be made: — Held, that the arbitrators had no power to give a month for payment of the sum awarded, or to direct that the defendant should pay the costs, but that these directions were severable from the rest of the award, and might be rejected. In such a case the proper course is to discharge generally a rule to set aside the award, not to make it absolute in part. lie Egleston and Taylor, 45 Q. B. 479. A submission to arbitration recited that a con- troversy existed between A. W. , J. W. and M. in relation to the amounts due and paid ou a cer- tain mortgage made by M. to a loaning company, and as to the proportion of said mortgage paid by the said parties to the company, and submitted this controversy to the arbitrators ; and the par- ties covenanted with each other to observe the award. The arbitrators awarded that M. had paid the company the amount he agreed with A. W. to pay on the mortgage, and had overpaid his proportion by 5^627, in which sum A. W. was in- debted to him ; and that A. W. should pay that sum to him on or before the 1st of Jane, 1882 ; and should also pay the costs of the reference, viz., $35. Nothing was said about J. W. : — Held, by Osier, J. '(1) That the arbitrators had ' not exceeded their powers in directmg payment by A. W. (2) That the award was not bad for omitting to mention J. W., this being equivalent to an award that there was nothing due by him :— Keld, that the finding as to costs was unauthor- ized, but was severable from the rest of the award. Whitely et al. v. MacMahon, 32 C. P. 453. (6) Costs. By an order of reference the arbitrator was empowered to certify and amend pleadings and proceedings, and otherwise as a judge at nisi prius, and costs of the reference, arbitration, and award were to abide the result of the award ; — Held, that the arbitrator had no power to make any disposition of the costs, as they were provided for by the reference . Devanney et al. V. Dorr e« aZ., 4 0. R., C. P. D. 206. When the submission or order of reference is silent as to oosts, arbitrators have no power to adjudicate upon them, but each party must bear his own costs and half those of the award. A direction as to the costs in such a case : — Held, severable from the rest of the award. Re Hard- ng and Wren, 4 0. E., Q. B. D. 605. [See last subhead.] III. Umpire or Third Arbitrator. To an action for wrongful dismissal, and on the common counts, defendants pleaded an award, by which all matters in dispute between the parties had been settled. The submission was to S. and N. , and shch third person as " the said arbitrators " should appoint, ' ' so that the said arbitrators or umpire " make his or their award * * * by, &c. , or such further day as ' ' the arbitrators, or any two of them, " might enlarge to. Before entering upon their duties, S. and N. appointed E. as third arbitrator, and, the award was executed by S. and E. only, bat professed, in the body of it, to be the award of the three : — Held, that E. was a third arbitrator, not an umpire, that the word " umpire," in the submission, must be rejected as surplusage ; and the award was invalid, not having been made by all three arbitrators. Willson v. York, 46 Q. B. 289. One of the stipulations in a contract between the plaintiff and defendant companies was, that if any dispute arose between them it should be ■ referred to arbitration, each of the parties to name an arbitrator, and the two within ten days after the appointment of the one last named, should appoint an umpire ; but if either party should neglect or refuse to appoint an arbitrator for the space of ten days after being requested so to do, or should appoint an arbitrator who should refuse or neglect to act as such, then the arbitrator of the party making such request should appoint an arbitrator on behalf of the other party. A 'lotioe by the defendant com- pany requiring the plaintiff company to appoinii ; anarbitrator was duly served on the 10th of Jane,v on the agent of the plaintiff company in New York, and on the 19th the plaintiff company, by cablegram from London, named one C. M. D., of ARBITRATION AKD AWARD. 18 Kew York, as tlaeir arbitrator, On the 28th of the Hame month S., the arbitrator of the defen- dant company, wrote to C. M. D. requiring him to join in the naming of an umpire, but he an- swered that he was about to leave the city, and would return on the 30th ; that ha^'ing been only advised by cable of his appointment and that his commission would be mailed to him, he could not until its arrival, intelligently take any action . On the 30th 0. M. D. returned to his office, and then wrote to S. expressing his readiness to act, and at the same time confirmed a nomination made by his partners, during his absence, of an umpire : — Held, affirming the decree of the court below, 28 Ohy. 648, (1) that the facts did not establish any refusal or neglect on the part of 0. il D. to act as arbitrator, such as would' justify S. in naming an arbitrator in his stead : (2) that the naming by the arbitrators of an umpire was not such an act as required C. M. D. to take part in within ten days from his appointment, or in default that his appointment should be vacated, and S. have the right to name a substitute. Direct Uniled States Cable Co. (Limited) v. Dominion Telegraph Company of Canada, 8 A. R. 416 ; 28 Chy. 648. IV. Examination of Witnesses. Held, that under R. S. 0. c. 50, s. 224, the witnesses on an arbitration must be examined upon oath, unless there is a positive agreement or consent to the contrary. Such consent or agreement may be shewn dehors the submission, and in this case, upon the affidavits filed, it was held to be sufficiently made out ; but, semble, that it cannot be inferred from the absence of objection or mere acquiescence. In re Rn^hbrooh and Starr, 46 Q. B. 73. V. AwAED. 1. Time of making. In an action on contract, the matters in differ- ence were, by rule of court, by and with the con- sent of the parties, submitted to arbitration. By the rule of reference the award was directed to be made on or before the 1st May, 1877, or such further or ulterior day as the arbitrators might endorse from time to time on the order. The time for making the award was extended by the -arbitrators till the 1st of September, 1877. On the 31st August, 1877, the attorneys for plain- tiff and defendants, by consent in writing, en- dorsed on the rule of reference, extended the time for making the award till the 8th September. On the 7th September the arbitrators made their award in favour of the plaintiff for the sum of -$5,001.42, in full settlement of all matters in dif- ference in the cause : — Held, reversing the judg- ment of the Supreme Court of Nova Scotia, that where the parties, , through their respective at- torneys in the action, consent to extend the time for making an award under a rule of reference, such consent does not operate as a new submis- sion, but is an enlargement of the time under the rule and a continuation to the extended period of the authority of the arbitrators, and therefore an award made within the extended period is an award made under the rule of reference, and is valid and binding on the parties. That the fact 2 of one of the parties being a municipal corpora- tion makes no difference. Oakes v. The City oj Halifax, 4 S. 0. R. 640. 2. Reference bach. In ejectment it was ordered in Hilary term, 1879, that a verdict should be entered for the plaintiff, but no execution to issue until the value of the improvements was ascertained and the amount thereof paid to the defendant, and that it be referred to the Master in Chancery at Ottawa, to ascertain such value. The master made his report on the 30th of October, 1879, merely finding the Value of the improvements, without making any allowance for the "rents and profits. In Easter term, 1880, the plaintiff moved to refer back the report to the master to make such allowance ; — Held, reversing the de- cision of Gait, J., 31 0. P. 227, that the refer- ence was to the master as an officer of the court, and that there was nothing in any of the sections of the C. L. P. Act, (R. S. 0. c. 50), relating to arbitrations, which interfered with the right of the court, under the circumstances; to review the act of their officer, and to send the matter back for his reconsideration. The matter was therefore referred back to the master to make such allowance. McCarthy v. Arbuchle, 31 C. P. 405. The arbitrators having made two previous awards, which had both been referred back to them, and great expense incurred, the Court refused to refer the matter back to them, but ordered that it be remitted to the judge of the County Court, unless counsel could agree upon such facts as would enable the court to deal with the matters in dispute. In re Albemarle and Eastnor, 46 Q. B. 183. See Moore v. Buclcner, 28 Chy. 606, p. 19. 3. Appeal from. Where a voluntary submission to arbitration contained a, provision that the agreement might be made a rule of court, and that the court might be moved to set aside or refer back the award :— Held, that this conferred no right of appeal under R. S. 0. c. 50, s. 191, jhxAi., under sec. 205, could only be conferred by the terms of the submission. In re Toianship of York and Wilhon, 8 P. R. 313.— Osier. An appeal lies from an award made in pursu- ance of a consent order of reference in a cause at nisi prius under sec. 205 of the C. L. P. Act. McEwan v. McLeod, 46 Q. B. 235. Held, that in Nova Scotia, where the rule nisi to set aside an award specifies certain grounds of ■ objection, and no new grounds are added by way of amendment in the court below, no other ground of objection to the award can be raised on appeal. Oakes v. The City of Halifax, 4 S. C. R. 640. Quffire, where theland having been taken under an Act of the Dominion Parliament whether the finding of the arbitrators could be reviewed under 38 Vict. c. 15 Out. Norvall v. Canada Southern, R. W. Co., 5 A. R. 13. 19 ARKEST. 20 VL Staying and Settino Aside Proceedings ON AWAKD. 1. Misconduct of Arbitrators. Held, that the award in this case was bad and mnst be set aside, as it appeared that the arbi- trators had received the evidence of one of the parties in the absence of the others, and after the arbitration was supposed to be closed. Whitely at al. v. McMahon, 32 C. P. 453. Held, affirming'the decree of Proudfoot, V. C, that the plaintiff was entitled to specific perfor- mance of an award giving him damages for his lands taken by the defendants : that the sum awarded, was not so excessive as to shew any fraudulent or improper conduct on the part of the arbitrators ; and, qufere, whether, if shewn it would be a defence in such a proceeding. Norvdll V. Canada Southern Railway Co., 5 A K. 13. See Harding v. The Corporation of the Tovm- ship of Cardiff, 29 Chy. 308. 2. Time for moving. On the 2nd of|December, 1878, the submission being within the 9 & 10 Will. III., the plaintiff moved to set aside an award made on the 13th of August previously, accounting for his delay on the ground that the defendant had, on the 4th of September, before the end of the next term, served a notice on him of his intention to appeal. It was not, however, sworn that he refrained from moving owing to this notice ; — Held, re- versing the decision of Proudfoot, V. C. , that the evidence did not shew that the delay was induced by the defendant, but that even if it had, it would have been no excuse for the delay, and the motion was refused. Pardee v. Lloyd, 5 A.R. 1. VII. ENroEciNG Award. In answer to a bill to enforce an award, the defendant by answer submitted to the court a number of matters as objections to the award, and that a reference back to the arbitrator, with certain instructions, or a reference to the master as to the matters in dispute should be directed. At the hearing on bill and answer, the defendant objected (1) to the jurisdiction of the court, the submission providing that the submission and award should be made a rule of the Queen's Bench or Common Pleas ; (2) that the filing of the bill was premature, the time for moving against the award not having expired : — Held, that a proceeding to enforce an award by sum- mary application, must be taken after the time for moving against it has elapsed. Moore v. Buckner, 28 Chy. 606. Qufere, whether a proceeding for that purpose by action at law or suit in equity, can be taken before that time. lb. Held, also, that the objection to the jurisdic- tion would have prevailed if properly taken, as the parties to the submission had agreed upon their forum ; but the defendant having submitted to the jurisdiction by his answer, and himself asked the intervention of the court, could not now be heard to object. lb ?,ee Norvall V. Canada Southern Railway Co., 5 A. K. 13, p. 19. VIII. Costs. It not appearing that there was any good rea- son for filing a bill instead of proceeding in the usual way, the court (Spragge, C. , ) refused to the plaintiff any costs other than such as he would have been entitled to had he proceeded to enforce the award under the statute. Moore v. Buckner, 28 Chy. 606. See Harding v. The Corporation of the Township of Cardiff, 29 Chy. 308. IX. In Particitlar Cases. 1. Arbitration of questions arising between mem- bers of Incorporated Societies. See Cannon v. Tlie Toronto Corn Exchange, 5 A. B.. 268 ; JSssery v. Court Pride of the Dominion, 2 O. E. 596. ARBITRATOR. See Arbitration and Award. ARREST. I. On Attachment- THE Person. -See Attachment of II. On Ca. Re. — See Capias ad Responden- dum. III. Oa. Sa. — See Capias ad Satiseacibn- DUM. IV. On Ne Exeat— See Ne Exeat. V. Writ of Arrest — See Writ oe Arrest. VI. Warrant eor Arrest — See WARRAifT FOR Arrest. VII. Bail— See Bail. VIII. Malicious Arrest — iSee Malicious Ar- rest, Prosecution, and Other Pro- ceedings. The general rule that it is against the policy of our law to permit a foreigner to follow an- other into Ontario, and arrest him for a debt contracted abroad, is limited to cases in which the debtor is here on temporary business, and is about to return to his own country. Butler et al V. Bosenfeldt ; Sweetzer et al. v. Eo-ienfeldt, 8 P. R. 175.— Osier. And where the debtor has absconded from his own country to Ontario, and does not intend re- turning, or intends to go to some other country, the creditor may follow and arrest him here upon a ca. re. lb. On an application to set aside an arrest th» judge should not enquire into the particular form 21 ASSAULT. 22: of the action, if satisfied that a cause of action exists. lb. A defendant having contracted a debt in the United States of America, his ordinary place of abode, and in the act of returning there after a visit to his parents in this country, cannot be arrested on a charge of leaving Ontario with in- tent to defraud his creditors. Smith v. Smith, 9 P. E. 5U— Hagarty. Quaere, as to the liability of a married woman to arrest. The Metropolitan Loan and Savings Co. V. Mara etux., 8 P. K 355. —Wilson. The prisoner was arrested in Toronto, upon information contained in a telegram from Eng- land, charging him with having committed a felony in that country, and stating that a war- rant had been issued there for his arrest : — Held, that a person cannot, under the Imperial Act 6 & 7 Vict. 0. 34, legally be arrested or detained here for an offence committed out of Canada, un- less upon a warrant issued where the offence was committed, and endorsed by a judge of a superior court in this country. Such warrant must dis- close a felony according to the law of this coun- try, and Semble, that the expression "felony, to wit, larceny," is insufficient. The prisoner was therefore discharged. Begina v. Mc Holme, 8 P. R. 452.— Cameron. Defendant was arrested and held to bail for a debt alleged by plaintiff to be 1704, but the plaintiff recovered only $489. As to |80 which the plaintiff failed to recover, it was held, on the facts stated in the report of the case, that he had no reasonable ground for believing defendant to be liable, and he abandoned it at the trial, but as to the other portion, for which he failed, he had reasonable ground : —Held, that defendant was entitled to tax his costs of defence against the plaintiff under R. S. 0. c. 50, s. 343. Por- ritt V. Fraser, 8 P. R. 430.— Osier. Held, that the County Court Judge's order to arrest was well proved under R S. 0. c. 62, 28, by the production of a copy certified as such under the hand of the clerk of the court : but that the affidavit on which the capias issued, filed in that court, was not duly proved by the production of a copy of the affidavit similarly certified and with a seal attached, apparently that of the court, but not referred to or described in the- certificate. Timmins v. Wright, 45 Q. B. 246. Notwithstanding the Judicature Act, sec. 90 and rule 5, a writ of capias may still be issued under R. S. 0. c. 67, and the C. L. P. Act before an action has been commenced by a writ of summons. Vetter v. Cowan, 46 Q. B. 435. On an application to set aside the order for an airest and the writ, &o. , but not to be discharged out of custody, objections that the affidavit dis- closes no sufficient cause of action, or shews that the defendant is about to leave the province are not open. Robertson v. Coulton, 9 P. R. 16. — Osier. Where the affidavit for the order was entitled in the High Court of Justice, but not in the proper division : — Held, that the objection was clearly amendable, lb. The capias issued after action, was in the form formerly used for the commencement of an action ; — Held, amendable. lb. The affidavit stated only that defendant was indebted in $116.60 on two promissory notes- overdue ; but defendant who had left the country, did not deny that he was indebted, and the pai'ticulara were stated in the special endorse- ment of the writ of summons served on him. An affidavit stating the particulars sufficiently was allowed to be filed in support of the order. lb. See also, McSorley v. The Mayor, 35 ATTACHMENT OF THE PERSON". 36 17 R. S. 0. c. 49, or s. 304 R. S. 0. c. 50, or rule 366 0. J. Act. MoLaohlin v. Blackburn, 7 P. R. 287, dissented from ; Lovell v Gibson, 6 P. R. 132, commented upon. Meyers v. Kendrick, 9 P. R. 363.— Osier. See Ghent v. McColl, 8 P. R. 428, p. 32. IV. Pkactice. When serving a defendant with an order to examine him as a judgment debtor, it is not necessary to exhibit the original order, unless demanded, in order to entitle the plaintiff to move for a oa. sa. against him, under R. S. 0. c. 50 s. 305. Imperial Bank v. Dickey, 8 P. R. 246.— Gait. The affidavit on -which to obtain an attaching order may be made. by the attorney of the judg- ment creditor, or by a partner of the attorney. Semble, that proceedings on such order could not be prohibited on the ground that it was founded on a defective affidavit, that being a mere matter of practice, fn. re Sato v. Hubhard, 8 P. R. 445.— Osier. Proceedings were taken before a county judge to garnish certain moneys, payable by the county to the plaintiff, as clerk of the peace and county Crown attorney, and which moneys that judge ordered to be attached in favour of the creditor, the present defendant. Thereupon, the debtor, the defendant in those proceedings, filed a bill in this court, seeking to restrain further action on such order : — Held, that this court had no juris- diction to grant the relief asked ; that the proper place to obtain such relief was by appeal to the Court of Appeal ; and, without determining whether the claim of the debtor against the county, was such as could be garnished, the court (Proudfoot, V. 0.,) refused the motion for injunction, with costs. Van Norman v. Orant, 27 Chy. 498. Held, that there is no appeal from an order made in garnishee proceedings in a County Court, under R. S. 0. c. 50, s. 313, appeals from county Courts being expressly limited to the cases men- tioned in s. 35 of the County Courts Act. Sec. 200 of the C. L. P. Act does not give a general appeal from the County Courts being controlled by the sub-heading preceding s. 189. Sato et al. V. Hubbard, 6 A. R. 546. Semble, the question of the validity of a judg- ment should not be argued on the return of a garnishee summons, but should be raised on an application to set aside the execution. Elliot V. Capell, 9 P. R. 35. — Dalton, Master — Osier. Held, that under rule 369, 0. J. Act, an appointment signed by the examiner, and not a copy, must be served on the person to be examined. Meyers v. Hendrich, 9 P. R. 363. — Osier. An examination under A. J. Act, ss. 17, 18 or of 0. L. P. Act, s. 304, can only be taken under a rule of court or judge's order. lb. See Canadian Bank of Commerce v. Crouch, 8 P. R. 437, p. 33. ATTACHMENT OF THE GOODS OP DEBTORS. Against Absconding Debtors — See Abscond- ing Debtor. ATTACHMENT OF THE PERSON. I. For Contempt op Court, 36. II. For Non-peoddotion of Documents oe Accounts. 37. I. For Contempt oe Court. A married woman, a judgment debtor, who refuses to attend and be examined as to her estate and eflfects, or refuses to disclose her pro- perty, or to give satisfactory answers to questions under R. S. 0. c. 50, ss. 304, 305, may be com- mitted for disobedience of the statute, notwith- standing the R. S. 0. u. 67, s. 3. Metropolitan Loan and Savings Co. v. Mara et ux., 8 P. R. 355— Wilson. The order for commitment in such case is not mesne or final process, but punishment for dis- obedience of the statute. lb. Quaere, as to the liability of a married woman to arrest. lb. A deputy sheriff was arrested under a writ of attachment for default in obeying an order upon his sheriff to deliver up to the claimant, who had succeeded on an interpleader issue, the goods, &c., seized. Upon a motion by the deputy to be discharged from custody, it Was shewn that his non-compliance with the order arose from a difficulty in which he found himself by reason of the claim of another person who had succeeded in an issue about the same goods, and not from any deliberate intention to disregard the order ; and his discharge was ordered. Semble, that the motion should have been for leave to admin- ister interrogatories to or for the examination of the person committed, and for a habeas corpns. In re Maitland, Ganther v. Cooke, 9 P. R. 400.— Osier. The sheriff of Oxford, in executing a writ of replevin, was obstructed by the defendant, who rescued the goods. On complaint of the sheriff's officer, they were summarily tried before a Police Magistrate and tined, under 32-33 Vict. c. 32, by which it is declared that any person dischaig^ ; or convicted in such a case shall be released from all further or other criminal proceedings for the same cause. A motion afterwards made by the plaintiff to attach the same parties for contempt, was discharged, but without costs. Haywood et al. V. Hay et al., 46 Q. B. 562. | Pending the injunction in this case, (see4 O.B. p. 60), one P., who was not a party to the aotioB, but was a member of the plaintiffs' association, on behalf of the association, hired one H. to wort for him. McCord and Jenkins, members of the i defendants' association, but not parties to the action, hearing of this went to H. and induced i him to refuse to work for P. and to leave 37 ATTORNEY AND SOLICITOR 38 Toronto. The court was of opinion that M. and J. knew of the injunction pending at the time. The plaintiffs did not state by their writ that they sued in any representative character, nor did they sue the defendants in a representa- tive company, but the plaintiffs' affidavits stated that the plaintiffs represented their association and the defendants, theirs. On motion to com- mit M. and J. for contempt of process of the court :— Held, that the Master Plasterers' Asso- ■ciation was not made a party to nor sufficiently represented in the action by the allegations in the plaintiffs' affidavits ; and that no act against the plaintiffs individually having been estab- lished, M. and J. could not be held guilty of contempt for interference with the association and P. : that though the association might be added by amendment, the injunction would also have to be amended, and in the meantime M. and ■J. must be acquitted of contempt of the injunc- tion as it now stood, and therefore the motion must fail. Hyn^s v. Fisher, 4 0. E., Q. B. D. 7S. On an application on behalf of the respondent H. to an election petition for an order nisi calling ■on the defendant, his opponent at the election, to shew cause why he should not be committed for contempt of court for publishing articles in his newspaper, reflecting on and prejudging the conduct of the respondent and the returning officer during the currency of an election peti- tion : — Held, on the materials before the court, 3, prima facie case of contempt was made out ; but as it appeared on the same materials that the respondent had attended and spoken at a meeting held for the purpose of approving of the conduct of the returning officer, and presenting him with a gold watch as a mark of such public approval, the applicant was also in fault, and the motion was refused, /re re BotJuoell Election Case, 4 0. E., C. P. D. 224. II. Fob Non-Peoduction of Docctments or Accounts. Where a party to be examined refuses to pro- duce books, &c. , as required by the notice to produce, served with the order to examine under R. S. O. c. 50, s. 161, or refuses or neglects to attend for examination, or refuses to be sworn or to answer lawful questions, pursuant to such order, proceedings against him by attachment must be taken before the court, and not before a judge in chambers. Me/rchanig' Bank v. Pier- i7 for previous accounts rendered."' An action was then commenced in the Chancery Division for the amount of the two bills. On the trial of the action, judgment was given for the amount of the first bill, as rendered, and also for the amount of the second bill, subject to taxation : — Held, on appeal to die Divisional Court, that neither the existence of a controversy as to the terms on which the business was done, nor the continuance of the employment after th«^ delivery of the first bill, were " special circum- stances " within E. S. 0. c.140, a. 35, entitling 0. 45 ATTORNEY AND SOLICITOR. 46 to tax the first bill after the lapse of a year : — Held, also, that the reference in the second bill to the amount claimed in respect of the first bill did not amount to a rendering of the first bill so as to entitle the client to a taxation. Arnoldi v. O'Donohoe, 2 O. E., Chy. D. 322. See i?e Solicitors, 9 P. E. 90, p. 47. (c) What Recoverable. The plaintifi', an attorney, was the official assignee of an insolvent estate. He brought an action on behalf of the estate, and used his own name as the attorney on the record. The plain- tiff' obtained a verdict : — Held, that under s. 32 of the Insolvency Act, 1875, he was entitled to tax disbursements only against the defendant. Agnew v. Eosh, 8 P. E. 67. — Osier. A master or a single judge has no discretion to allow a solicitor more than |1 per hour for attendance on the taxation of a bill of costs, either between solicitor and client, or party and party : the tariff being fixed at that rate by G. O. 608. Re Totten, 8. P. E. 385. — Proudf oot. Where costs as between solicitor and client were to be paid by the plaintiff to the defendant, and where it appeared that the defendant's soli- citor had at the request of his client, made in good faith and on reasonable grounds travelled from Sarnia to Toronto, to attend on the exami- nation of the plaintiff on the bill : — Held, on appeal from the master, that the defendant could tax against the plaintiff a sum of |60, paid to defendant's solicitor for two days services and travelling expenses. Oough v. Park, 8 P. E. 492.— Proudf oot. An administrator ad litem had allowed suits to be brought in his name without the sanction of the Court, which both he and his soUoitor had been notified it was necessary should be obtained and a sum of $2,738.37 for costs in respect of such suits had been paid out of the funds to the solicitor, which it was alleged had been so paid improvidently. The court in a suit by the ex- ecutors against the administrator ad litem, di- rected the taxation of the solicitor's bill where a sum of 12,012.81 was disallowed, and there- upon the sureties for the administrator, who was unable to pay, applied by petition for an order that the solicitor should repay this amount with costs. The court (Proudfoot, J. ), under the circumstances, made the order asked, although no taxation of the costs as between the solicitor and his client had been had, and it it was denied that any arrangement existed that the solicitor should only be paid such costs as the adminis- trator might be allowed against the estate ; or that any privity existed between the solicitor and the executors, and a bill filed by the execu- tors against the administrator and his solicitor had as against the latter been dismissed with costs on the ground of such want of privity ; such dismissal not having been on the merits could not be claimed to be res judicata. Crooks v. Crooks, 1 Ohy. 57, remarked upon and followed. Re Donovan— Wilson v. Beatty, 29 Chy. 280. Eeversed on Appeal, 9 A. E. 149. Interest may be allowed on a solicitor's bill of costs, if a demand in writing is made for it. fn re McClive et al, Solicitors, 9 P. E. 213.— Wil- son. The taxing officer has no power to allow inter- est, unless the matter has been specially referred to him by the order for taxation. lb. The plaintiff, during the pendency of a motion for interim ahmony, returned to her husband : — Held, that the defendant must pay the costs as between solicitor and client of the plaintiff's solicitor. Leonard v. Leonard, 9 P. E. 450. — Dalton, Master. Necessary letters between a solicitor and his agent on the business of the cause are taxable as between party and party, whether the agent re- sides in the county town of the county in which the solicitor resides, or in another county, or in Toronto. Agnew v. Plunkett, 9 P. E. 456. — Osier, Tlie plaintiff, a solicitor, obtained a verdict for damages and costs in an action for libel, in which, although another solicitor appeared as acting for him in all the pleadings and proceedings in the suit, he actually did the work, and carried on the suit himself : — Held, on appeal from the taxing officer, that full fees and disbursements except ' ' instructions, " had been properly al- lowed to him, and that his acting as agent for the solicitor whose name appeared in the pro- ceedings as his solicitor did not affect his right. King v. Mayer, 9 P. E. 514. — Hagarty. See In re Flint and Jellett, Attorneys, 8 P. E. 361, p. 41. (d) Practice. ■ Where an order is made for taxation of an at- torney's bill, as between attorney and client, under the E. S. 0. c. 140, s. 49, a common law court has no power here, as it has in England, under the 6 & 7 Vict. u. 73, s. 43, to make a sum- mary order for payment of the amount found due from the cHent, except by consent. In re A. B. and C. D., Attorneys, 8 P. E. 126.— Osier. Bills of costs between solicitor and client should prima facie be referred for taxation to the master of the county in which the work was done. Re Idington and Mickle, 8 P. E. 566. — Boyd. An order for the taxation of a solicitor's bill, at the instance of the client, should refer the bill simply for taxation. A clause in such order directing payment to the solicitor of the amount of the taxed bill was struck out. Re Clarke, 9 P. E. 197.— Dalton, Master. See Re Solicitors, 9 P. E. 90, p. \47. (e) Appeal from Taxation. When an order is obtained by a client referring the taxation of a solicitor's bill to the master in the county where the work was done, any review of the master's conclusions must be ob- tained by way of appeal to a judge. In re Bleeker and Henderson, 9 P. E. 182.— Boyd. 47 Held, that the notice of appeal from a certifi- ■cate of taxation of a solicitor's bill of costs by the local master at St. Thomas, must be seven days, as required by G. 0. 642. Such a case is not within rule 449 0. J. Act. EMhange Bank v. Newell et al, 9 P. E. 528.— Proudfoot. 3. Recovery by Suit. In an action by a solicitor to recover the amount of a bill of coats, the fact that he does not, in his statement of claim, allege that the bill was delivered a month before action brought, is not now, any more than before the Judicature Act, ground for demurrer, but only for defence. Seane et al. v. Duckett et al.. 3 0. E,., Chy. D. 370. Though under R. S. 0., c. 140, sec. 32, the right of action on a bill of costs may be suspended pending a month from delivery, nevertheless the solicitor is a creditor, and may as such, before the expiration of such month, bring an action to set aside a voluntary conveyance as fraudulent and void. 76. See also, Duf v. Canadian Mutual Fire Ins. Co., 9 P. R. 292 ; S.C.,'2.0. E. 560. ATTORNEY AND SOLICITOR. 48 4. Other Cases. An order for partition or sale was made under the recent G. 0. 640, by the master at London, of the estate of one M. , deceased. In proceed- ing under that order the master advertised for creditors, and M. & M. sent in a claim for ob- taining letters of administration, and for defend- ing an action in the court of C. P., brought by W. M. , a defendant in this suit, and entitled to a share of the estate, against the administratrix. The master allowed the claim, and W. M. ap- pealed, on the ground that neither the deceased nor his estate was indebted to M. & M. and that they were not entitled to prove as creditors in this cause : — Held, that she was justified in de- fending the suit, and the appeal was dismissed. McKay v. McKay, 8 P. R. 334.— Proudfoot. On an application to tax a solicitor's bill more than a month having elapsed since its delivery, an order was issued in the long form in use be- fore the 0. J. Act instead of the form under rule 443, as the master is mentioned in that order but the taxing officer is the proper officer to tax bills of costs under rule 438 of the Act. Se Solici- tors, 9 P. R. 90.— Stephens, Beferee. Fraud having been charged against a defen- dant, who was a solicitor, and the charge being wholly unsupported: — Semble, that it would have been proper not merely to deprive the plaintiff of her costs, but to allow such defendant aU his costs. Freed v. Orr et al., 6 A. R. 690. VIII. Lien for Costs. A defendant's solicitor as a plaintiff's solicitor may have a lien for costs on a fund in court. A bill was filed b3'- a purchaser against the vendor for rescission or specific performanoelof a contract for sale of lands in the county of Simcoe, made the 12th day of October, 1870, and registered in ' July, 1875, and by the decree made m October, 1876', the plaintiffs were ordered to pay certain ovei-due purchase money. C, a creditor of the defendant, having placed a fi. fa. lands m the hands of the sheriff of Simcoe in December, 1878, obtained a stop order in January, 1879, against the purchase money in court. The defendant's solicitor claimed a prior lien for costs of this suit but had obtained no stop order :— Held, on the aijplication of the defendant's solicitors for pay- ment of the fund to them, that their lien had priority. Part of the fund in court was a bill- ance of purchase money paid into court by the plaintiff in March, 1879, pursuant to the decree on further directions made in October, 1878. C. seeking to attach this balance, in addition to his stop order obtained in January, 1877, placed a fi. fa. goods in the hands of the sheriff of York in February, 1879 : — Held, that as to this bal- ance the solicitors' lien had also priority. War- dell v. Trenouth, 8 P. R. 142.— Stephens, Jie- feree. In garnishee proceedings a court of law will, as against the attaching creditor, protect an at- torney's lien for costs of the action or suit in which or by which the debt attached has been recovered, where the garnishee has notice of the lien. Canadian Bank of Commerce v. Crouch, 8 P. R. 437.— Osier. A court of equity will restrain a creditor who has obtained an attaching order at law from enforcing it against a fund recovered by means of a suit in equity, to the prejudice of the attor- ney's lien for costs in that suit. lb. The lien extends only to the costs incurred in the particular suit or proceeding, and not to the attornej^'s general costs against the client in other matters. Jb. IX. MlSCELLANEOirS Gasbs. Audit of county attorney's account in connec- tion with administration of criminal justice. See In reFenton County Crown Attorney of the County of York and The Board of Audit of the County of York, 31 C. P. 31. The plaintiff, knowing that the defendants were a firm of solicitors, advanced to one A money upon a joint note signed by him and by one of the defendants in the firm's name, with-, out the knowledge or consent of his partner. No usage or general mutual authority to sign notes in the name of the firm was proved, and it was admitted that the plaintiff had no knowledge (M the transactions reUed upon to shew such authol^ ity. A verdict was given for defendants in the County Court, and a rule nisi to set it aside re- fused : — Held, that the plaintiff could not recover against both defendants, but that the defendant who signed the note was liable. Wilson v. Brotm, etal, 6 A. R. 4U. Knowledge of solicitor — how far binding on client. See The Real Estate Investment Company v. 27ie Metropolitan Building Society, 3 0. E. 476 ; Brown v. Sweet, 7 A. E. 725. Liability of solicitor for slander of title. See Ontario Industrial Loan and Investment Co. v. Lindsey et al., 4 0. R. 473 ; 3 0. R. 66. 49 AVERAGE. 50 ATTORNEY-GENERAL. Held, afifirming the judgment of Proudfoot, V. C., 26 Chy. 126, that the doctrine of escheats' applies to Ontario ; that the Attorney-General for Ontario is the proper person to represent the Crown and to appropriate the escheat to the uses of the province : that the Court of Chancery lias jurisdiction in such a case ; and that it was proper for the Attorney-General to file a bill in the Court of Chancery to enforce the escheat. Attorney-Oeneral of Ontario v. O'Reillv. 6 A. R . 576. Held, reversing the decision of Spragge, C- (28 Chy. 65), that the Attorney-General for On- tario, representing only a limited portion of the public, with whom, if at all, a contract existed for the construction of a bridge by a company incorporated by the Dominion Parliament, from Canada to the United States, across the Niagara River, had no locus standi. Attorney-General v. 'The International Bridge Co., 6 A. R. 537. See also 8. C. 27 Chy, 37. The work being one within the jurisdiction of -. the parliament of Canada, that parliament, pre- / sumably with the knowledge of the state of the bridge, allowed debentures to be issued upon it : — Held, upon this ground also the Attorney- General of Ontario was not the proper party to file the information. 8. C. , 6 A. R. 537. As to necessity of a public nuisance being moved against by the Attorney-General. See Hathaway v. Doig, 28 Chy. 461. Semble, but for the language used in Guelph v. The Canada Company, 4 Chy. 656, the proper frame of a suit by a municipality against a rail- way company for trespassing by running their track along one of the streets of the municipality without their consent would be byway of infor- mation in the name of the Attorney-General with the corporation as relators. Fenelon Falls v. Victoria Railway Co. , 29 Chy. 4. On an indictment, containing four counts for obtaining money by false pretences, was en- dorsed: " I direct that this indictment be laid before the grand jury. Montreal, 6th October, 1880 ;— By J. A. Mousseau, Q.C. ; C. P. David- son, Q.C. ; L. O. Loranger, Attorney-General. Messrs. Mousseau and Davidson were the two counsel authorized to represent the crown in all the criminal proceedings during the term. A motion supported by affidavit was made to quash the indictment on the ground, inter alia, that the preliminary formalities required by s. 28 of 32 and 33 Vict. c. 29 had not been observed. The chief justice allowed the case to proceed, intimating that he would reserve the point raised, should the defendant be found guilty. The defendant was convicted, and it was held, on appeal, reversing the judgment of the Court of Queen's Bench, that under 32 and 33 Vict. c. 29, s. 28, the Attorney-General could not delegate to the judgment and discretion of another the power which the legislature had authorized him personally to exercise to direct that a bill of indictment for obtaining money by false pre- tences be laid before the grand jury ; and it being admitted that the Attorney-General gave no directions with reference to this indictment, the motion to quash should have been granted, and the verdict ought to be set aside. Abrahams v. The Queen, 6 S. C. R. 10. 4 To an action on a drainage by-law to compel a municipal corporation to complete a drain, and also to restrain a misapplication of moneys asses- sed, and for an account, the Attorney-General not a necessary party. See Smith v. The Corpora- tion of the Township of Raleigh, 3 O. R. , Chy. D. 405. AUCTION AND AUCTIONEER. BiDDiNO AT Sale or Lands by Order oi' the Court — .See Sale or Land by Order of the Court. In a bill filed by a mortgagor against his son, a bidder at the sale by another of the defen- dants, a loan company, to which bill the com- pany and one B. were also defendants, it was alleged that it had been agreed between the son and B. that in consideration of the sou's secur ing to B. a debt of the plaintiff, B. would ad- vance the deposit necessary to enable the son to buy the laud at the sale ; that the sou should attend and buy in the land, which he accordingly did ; that in consequence of B.'s refusal to make the promised advance, the son was unable to carry out the sale : that the bidding of the sou deterred others present from bidding, and that B. after- wards privately bought the land at a great under- value to the loss of the plaintiff : — Held, on de- murrer, that the bill sufficiently, though inarti- ficially, alleged that by reason of B. 's agreement and refusal to make the advance agreed upon, he had occasioned an abortive sale, and profited thereby to the loss and damage of the plaintiff. Campion v. Brackenridge, 28 Chy. 201. The defendant having sold land by auction under a decree of the Chancery Division, was convicted of a breach of the by-law of the county of Huron, passed pursuant to the Municipal Act E. S. 0. c. 174, s. 465 sub-s. 2, providing that it should not be lawful for any person to sell by public auction any wares, goods, or merchandize of any kind without a license : — Held, that the conviction was clearly bad, for the by-law did not refer to lands ; nor would the statute have authorized such a by-law. Regina v. Chapman, 1 0. R., Q. B. D. 582. As to effect of misrepresentations in sale by auction. See 8tam,imrs v. 0' Donohoe, 8 A. R. 161 ; 28 Chy. 207. Power of factor to sell by auction for repiy- ment of adva.ices without special authorization. See MilchM v. Syhes, 4 0, R., Chy. D. 501. AUDIT. Of county attorney's accounts. See In re Fenlon, and the Board of Audit of the County of York, 31 0. P. 31 ; In re Stanton and the Board of Audit for the County of Elgin, 3 0. R. 86. AVERAGE. See Ship. 51 BAILMENT. 52 AWARD. AnBIIilATION AND AwARD. BAIL. I. Absconding Debtok at Suit or the Ckowst, 51. II. Render of Bail and Release of Sure- ties, 51. III. Special Bail — Costs Under R. S. 0. c. 50 s. 343, 52. IV. In Criminal Matters — See Criminal Law. I. Absconding Debtor at Suit of the Chown. In an action at the suit of the crown an order was made for a writ of attachment against de- fendant as an absconding debtor. Service of the writ was accepted by his attorney, who entered an appearance to the writ : — Held, that this was a useless proceeding, and that defendant should have put in special bail. JRegina v. Stewart, 8 P. R. 297.— Osier. Held, also, that the forfeiture of a recogniz- ance to appear was a debt sufficient to support the application for an attachment under the Ab- sconding Debtor's Act. lb. Held, that the amount for which special bail is to be put in need not be mentioned in the order for the writ. lb. II. Render of Bail and Release of Sureties. The sureties on a statutory bail bond under a writ of ne exeat provinciS. have no power to sur- render their principal as at common law. An ap- plication by sureties for discharge from a bond and for re-payment of the money paid to the sheriff as collateral security was refused. Rich- ardson V. Richardson, 8 P. R. 274. — Proudfoot — Spragge. "Where a party is entitled to an assignment of a bond, and to realize it for his own benefit , his rights are the same in regard to money deposited; and where in an alimony suit the statutory bond nnder a writ of ne exeat has been given, the plaintiff is entitled to have the moneys deposited as collateral security therefor, paid into court, and applied in discharging arreaisof alimony, lb. The defendant was arrested under a ca. sa. and afterwards admitted to bail. The trial was in the vacation before Michaelmas Term, and the render in the vacation after that term. The plaintiff having omitted to charge the defendant in execution during Hilary Term : — Held, on an application for a supersedeas, that the render in Michaelmas vacation related back to the preced- ing term, which should count as one of the two terms within which the plaintiff must charge the defendant in execution, under Reg. Gen. H. T. 26 Geo. III. The defendant was therefore discharged. Ooldivg v. Mackie, 8 P. R. 237. — Osier. Judgment was signed against defendant in Michaelmas term, and he was rendered in dis- charge of his bail in the vacation following ;— Held, on an application for a supersedeas, that the render related back so as to include Michael- mas as one of the two terms within which the plaintiff must charge the defendant in execution ; and that not having been charged in execution until Easter Term he was entitled to his dis- charge. Wheatley v. Sharpe, 8 P.R. 307.— Osier. Where a person is once supersedeable for want of being charged in execution, he always con- tinues so, even though he is afterwards charged in execution, before the application for a super- sedeas, lb. An application for a supersedeas was enter- tained, although a similar application in the same case had already been dismissed. lb. W^here a defendant is arrested by a sheriff under a ca re, and after verdict is surrendered by the bail to the same sheriff upon an action being commenced against them, the sheriff is not entitled to a copy of the bail-piece before receiv- ing the prisoner into custody ; and where such refusal was given, the sheriff was compelled to pay the costs of an application to stay proceed- ings, and an order was made to extend the time for surrender. Grierson v. Corbett, 8 P. R. 517. — Osier. Where the plaintiff in an alimony suit obtains a writ of arrest and the defendant gives bail, and a breach of the bond is committed, the plaintiff is entitled to have the amount for which the writ was marked paid into court, to be apphed from time to time in payment of the alimony and costs : and, Semble, that upon such payment the sureties are entitled to be discharged from their bond. Aeedham v. Xeedham, 29 Chy. 117^ Where, under a writ of arrest, a caption takes place, the sheriff is entitled to a bond for double the amount marked upon the writ. lb. III. Special T?ail — Costs under R. S. 0. c. 5(^ s. 343. Defendant was arrested and held to bail for a. debt alleged by plaintiff to be $704, but the plaintiff recovered only |4S9. As to §80 which the plaintiff failed to recover, it was held on the facts stated in the report of the case that he had no reasonable ground for believing defendant to be liable and he abandoned it at the trial, butaa to the other portion for which he failed he had reasonable ground : — Held, the plaintiff was en- titled to tax his costs of defence against the^ plaintiff under R. S. 0. c. 50 s. 343. Porritt v. Fraser, 8 P. R. 430.— Osier. BAILMENT. Where possession is changed it need not be given personally to the creditor, purchaser or mortgagee ; it may equally be given to a trustee or bailee for him, and the debtor may increase the claim of such bailee or may charge the goods, with further sums in favour of other persons. McMaster et al. v. Garland et al., 31 0. P. 320. See, also, Oliver v. Newhouse, 32 C. P. 90 j Troop V. Hart, 7 S. O. R. 512. 53 BANKRUPTCY AND INSOLVENCY. 51 BALLOT. 'See Parliament. BANKRUPTCY AND INSOLVENCY. I. Assignment i'oe, the Benefit of Credi- tors. 1. Execution of, 53. 2. What Property Passes, 53. 3. Hindering and Delaying Creditors, 54. 4. Creditors holding Security, 54. 5. Preferential and Fraudu lent A ssignments. See Fraudulent Conveyances. II. Insolvent Acas of 1864, 1869, 1875, and 1879. 1. Jurisdiction of Insolvent Court, 55. 2. Who may come under, 55. 3. Sepeal of Act, 56. 4. Preferential Assignments. 57. 5. Assignee. (a) What Property vests in, 57. (b) Bights, Duties and Liabilities, 58. 6. Proof of Debts. (a) Creditors holding Security, 59. (b) Partnership Debts, 59. (c) Set-off, 60. (d) Interest, 60. 7. Fraud and Fraudulent Preferences. (a) Transactions Protected, 61. (b) Transactions Avoided, 62. (c) Fraudin obtaining Ooods or Credit,63. 8. Discharge, 64. III. When Insolvent ordered to give Secu- rity FOR Costs — See Costs. IV. Taking Malicious Proceedings in Bankruptcy— i''ee Malicious Ar- rest, Prosecution, and other Pro- ceedings. I. Assignment for the Benefit of Creditors. 1. Execution of. The assignment in this case was executed by one partner, at the request of his co-partner, in the partnership name, and was made at the re- quest of several creditors ; — Held, that the as- signment was properly executed, and that there was sufficient assent of the creditors. Nolan v. Donnelly et al., 4 O. R., C. P. I). 440. 2. What Property Passes. On the 26th May, 1880, two chattel mortgages were executed by the plaintiff to one J. G. One mortgage was to secure |2] 5, and interest ; the other being a security for certain promissory notes of the mortgagor endorsed by the mort- gagee, which had been discounted by the defen- dant, who was the holder thereof. On the 24th July, both the mortgages, together with the goods and chattels comprised therein, were assigned to defendant by J. G. On the 22nd- July, previously, E. G. and J. G., who had been trading in partnership, assigned to 0. and K. , upon trust for the benefit of creditors, amongst other things, all the grain, farm stock, crops, whether growing or out, and other chattels and effects of the said assignors, or either of them, wheresoever situate, and also aU mortgages and all other personal estate wheresoever situate of the said assignors, or either of them, or in which any of them had any right or interest ; — Held, that the terms of the deed of assignment to 0. and K. were sufficient to include these mortgages and the goods comprised in them, and therefore,, as regarded the first-named mortgage, there being no contrary in tention, it passed under the deed, so that the subsequent assignment of that mort- gage to the defendant was of no avail ; but a& regarded the other mortgage, the defendant being the beneficial owner thereof, as holder of the notes secured thereby, and the mortgagee having no interest therein, there could be no intention that it should pass under the deed, and therefore it passed to the defendant under the assignment to him : — Semble, that there was evidence to shew that the plaintiff recognized the defendant's- title as assignee. Sutton v. Armstrong, 32 C. P. 11. 3. Hindering and Delaying Creditors. An assignment in trust for creditors of a small stock of goods valued at about $230, and some laud, made to a person not a creditor, contained a provision empowering the assignee, without consulting the creditors, to carry on the busi- ness, and wind it up, no time being stated therefor : to pay all salaries, wages, (fee, and aU advances made in goods and money for conduct- ing said business in the winding up thereof, to the best advantage, which advances he was authorized to make, and also to sell the said laud as to him should seem meet, and to retain a reasonable compensation for the execution of the said trusts : — Held, Wilson, C. J:, dissenting, affirming the judgment of Hagarty, C. J., that the assignment was void, as containing provisions hindering and delaying creditors, and such as they could not reasonably be required to agree to. Gallagher v. Glass, 32 C. P. 641. An assignment in trust for creditors contained a clause which, amongst other things, empowered the trustee to sell for cash or on credit, and with or without security for the unpaid purchase money : — Held, that the introduction of the words "with or without security" was imma- terial, and did not invalidate the assignment, there being no proof of any design on the part of the debtors to so enable the trustee to unfairly delay the realization of the assets. O'Brien et al. V. Clarkson, 2 0. E,., Q. B. D. 525. 4. Creditors holding Security. The plaintiff, the holder of a chattel mortgage with a covenant for payment, was not scheduled in proceedings in insolvency under the Act of 1875, but he was aware of the proceedings, and the insolvent obtained a final discharge : — Held, that the debt under the chattel mortgage was not extinguished. A subsequent common law assign- ment for the benefit of creditors was made by th& 55 BANKEUPTCY AND INSOLVENCY. 56 flebtor of all his property to the defendant in trust to pay expenses, &c., and "to applj' the Ijalanoe in or towards payment of the debts of the. assignor in proportion to their respective amounts without preference or priority. " — Held, that the plaintiflf was entitled to sue for the whole debt, and therefore to share in the estate proportionately under the deed for the whole, and that he was not bound to value his security and rank for the balance only. Beaty v. Samuel, 29 Chy. lOo. II. Insolvent Acts oe 1864, 1869, 1875, and 1879. 1 . Jurisdiction of Insolvent Court. In 1875, J. M. and D. M. entered into partner- ship, certain assets of J. M. being transferred to the partnership, but nothing being said as to his liabilities. In 1876, the firm having become in- solvent, B. was appointed assignee. The part- nership creditors were paid in full, and a surplus remained. D. M. then petitioned the county judge in insolvency to divide the said surplus ibetween him and J. M. — B. then commenced this suit against D. M. to have it declared that the said partnership deed was not binding upon him as such assignee, but that the partnership deed might be declared fraudulent and void, and that the court might take an account of the partner- .ship property, and make division, and for an injunction restraining D. M. from further pro- ceeding with his petition : — Held, that the In- solvent Court had jurisdiction to deal with the matter, and this being so, was the proper tribu- nal to do so, and this court would not interfere. Bell V. McDougall, 2 0. K, Chy. D. 618. 2. Who may come under. One C, a practising barrister, dealt largely in land transactions, but it was not .shewn that he depended thereon for his living. Becoming in- -solvent, proceedings under the Insolvent Act of 1875 were taken against him. The plaintiff was assignee of a mortgage made by C. , and brought suit thereon against H., the assignee in insol- vency of C, and D. and others, the. owners of parts of the mortgaged lands. It was objected by D. that C. should have been made a party : — Held, that C. was not a trader within the mean- ing of the Insolvent Act and that nothing passed to the assignee in the insolvency proceedings. C. was therefore declared to be a necessary party, and leave was given to add him as a de- fendant. Joseph v. Haffner, 29 Chy. 421. This was an appeal from a judgment of the Supreme Court of ISTova Scotia, making the rule nisi taken out by the respondents absolute to set aside verdict for plaintiff and enter judgment for the defendants. The action was brought by C. as assignee of L. P. F., under the Insolvent Act of 1875, for several trespasses alleged to have been committed on the property known as the Shubenacadie Canal property, and for conversion by 0. et al. to their own use of the ice taken off the lakes through which that canal was intended to run. The declaration contained six counts, the plaintiff claiming as assignee of F. Among the pleas were denials of committing the alleged wrongs, of the property being that of the plaintiff; and of his possession of it, the last plea being that "the said plaintiff was not, nor is such assignee as alleged. " After the trial both counsel declined addressing the' Judge, and it was agreed that a verdict should be entered for the plaintiff with |10 damages, subject to the opinion of the court, that the parties should be entitled to take all objections arising out of the evidence and minutes, and that the court should have power to enter judgment for or against the defendants with costs. A rule nisi for a new trial to be granted accordingly, and filed. The rule was tAen oiit as follows : — "On reading the minutes of the learned Judge who tried the cause, and the papers on file herein, and ou motion, it is ordered that the verdict entered herein formaUj' by consent subject to the opin- ion of the court, with power to take all objec- tions arising out of the evidence and minutes, and with power to the court to enter judgment ,' for or against defendants, with costs, be set aside with costs and a new trial granted herein." This rule was made absolute in the following terms : — "On argument, etc., it is ordered that the rule nisi be made absolute with costs and judgment entered for the defendants against the plaintiff with costs." Thereupon plaintiff ap- pealed to the Supreme Court of Canada, and it was : — Held, (Henry, J. , dissenting), that by tra- versing the allegation of plaintiff being assignee, the defendants put in issue the fact implied in the averment, that the plaintiff was assignee in insolvency, and that F. was a trader within the meaning of the Insolvent Act of 1869, and as the evidence did not establish that F. bought or sold in the course of any trade or business, or got his livelihood by buying and selling, that the plain- tiff failed to prove this issue : Per Gwynne, J : Assuming F. to be a trader still the defendants were entitled to judgment upon the merits, which had been argued at length. That the agreement at nisi prius authorized the court to render a verdict for plaintiff or defendant accord- ing as they should consider either party upon the law and the facts entitled ; that the court, hay- ing exercised the jurisdiction conferred upon it by this agreement, and rendered judgment for the defendants, this court was also bound to give judgment on the merits, and as judgment of the court below in favour of the defendants was substantially correct to sustain it ; and it havmg been objected that as the rule nisi asked for a new trial the rule absolute in favour of defendants was erroneous, that such an objection was too technical to be allowed to prevail, and that the rule nisi, having, as it did, recited the agree- ment at nisi prius, and the court below having i-endered a verdict for the defendants, it should be upheld, except as to the plea of liberum tene- mentum, which should be found for the plaintiff or struck off the record, and that to order a new trial could be but to protract a useless litigation at great expense. Creighton v. Chittick etal.,1 S. C. R. 348. 3. Repecd of Act. The repeal of the Insolvent Act does not affect any insolvent whose estate has vested in the assignee prior to the repeal. Cooper v. Kif^ Patrick, 8 P. R. 248.— Dalton, Q.C. Held, that the doctrine of pressure which ob- tained before the insolvency laws now occupies 57 BA.NKRUPTCY AND INSOLVENCY. 58^ the same position since their repeal. Brayley v. Ellis et al, 1 O. E., Ohy. D. 119. Affirmed on ' See 20 C. L. J. 144. Qufere, whether, where an insolvent's estate vested in an assignee under the Insolvent Act before its repeal, the action for the alleged fraud was a proceeding that might be continued there- under under the terms of the repealing Act, 43 Vict. 0. 1, Dom., or of the Interpretation Act, 31 Vict. c. 1, Dom. ; and whether, also, the s. 136 of the Insolvent Act of 1875 was ultra vires of the Dominion Parliament. Remarks as to the difference between s. 136, and the corresponding provision in s. 92 in the Insolvent Act of 1869. Lightbound v. Hill, 32 0. P. 294. See Peeh et al. v. Shields et al, 6 A. R. 639, p. 63 ; Clarkson et al. v. Whiteet al, 4 0.R. 663, p. 58. 4. Preferential Assignments. Action of debt by the plaintiff claiming under a deed of composition and discharge, as assignee of the assignee in insolvency of a co-partnership, whereby the debt in question was assigned to him. Plea, setting out the deed whereby the plaintiff covenanted with all the creditors, col- lectively and severally, to pay them and each of them 50c on the $ of their respective claims against the said insolvent firm, and on confirma- tion of the deed to pay the costs respecting the insolvent firm's estate * * and the preferen- tial claims against the said firm, in consideration of which "the said creditors" released to the insolvents their claims against them, and directed a conveyance of the insolvent firm's estate to them, and plaintiff averring that at the time of the assignment of the debt to the plaintiff there were separate debts of the insolvent, or one of them, unpaid and unsatisfied, which were not provided for by the deed : — Held, that the deed provided for the payment of firm creditors only, and did not include separate creditors, and therefore that the plaintiff's title to the debt failed. McKUrich v. Haley, 46 Q. B., 246. See II. 6 (b) p. 59. 5. Assignee. (a) What Property vests in. Upon the death of one member of a firm, and the subsequent insolvency of the surviving part- ners, the joint estate passes to their assignee in insolvency. But where the capital of surviving partners having been lost, they, while the estate was supposed to be solvent, conveyed the same to a trustee for creditors upon the request of the executrix of a deceased partner in consideration of a release by her from all liabilities ; and the executrix afterwards, upon obtaining probate conveyed her interest to the trustee ; and sub- sequently through a shrinkage in value the estate became insufficient to meet the liabilities, it was :— Held that by the assignment to the trus- tee, at the request of the executrix, for valuable consideration, they had parted with all interest in the estate and nothing passed to the plamtiff, as assignee, under proceedings in insolvency taken on the supposition that the assignment to the trustee was an act of insolvency, and that the assignment to the trustee not being ques- tioned on the ground of fraud, the assignee of the survivorswaspreoludedfrom anyenquiry. David- son V Papps, 28 Chy. 91. A mortgagor and mortgagee dealt together for some years without having any settlement of accounts, and the former became insolvent. At the date of the insolvency there existed a right of set-off in favour of the mortgagor for the balance due him on their general dealings : — Held, affirming the finding of the master that such right of set-off passed to the official assignee of the mortgagor, and that a transferee of the security took it subject to the equity. Court v. Holland, 29 Chy." 19. It appearing that part of C.'s assets was certain railway stock, obtained by him on a contract, that he was to retain one-half, if he could give the stocka marketable value, but that if he could not do so within a certain time, extending beyond the period of the insolvency proceedings, the transaction was to be void, and he was to re- transfer : — Held, that the shares should have been returned in his sworn statement as part of his assets, for the language of the statute was large enough to cover such an interest. It was a vahd executory contract, and as such passed on insolvency to the assignee. McGee v. Campbell^ 2 0. R., Ohy. D. 130 ; 28 Chy. 308. The payee of a promissory note made and pay- able in Ontario, who had absconded to Michigan, while there, and after a writ of attachment in insolvency had issued against him in Ontario, endorsed the note for good consideration to the plaintiffs, who took it bonS. fide. Evidence was given to prove that by the law of Michigan the endorsement was sufficient to pass the note to the plaintiff : — Held, reversing the judgment of the County Court, that the plaintiffs could not recover, as the title to the note had vested in the assignee before the endorsement, and that his rights thereto could not be affected by the law of Michigan. Jenhs et al. v. Doran, 5 A. R. 558. An assignee in insolvency is entitled to all the earnings of an insolvent which are earned after the assignment in insolvency, and before dis- charge, over and above what is necessary for the reasonable maintenance of the insolvent and his family. Therefore, where an insolvent, pending his discharge, applied part of his earnings in the purchase of land for the benefit of his wife : — Held, that to the extent of earnings so applied the assignee was entitled to a lien on the land^ Olarhsonetal.Y. Whiteetal, 40.R., Chy.D. 663. Held, also, that the repeal of the Insolvent Acts by 43 Vic. c. 1 (D), before claim made, was no bar thereto, the estate of the insolvent having vested in the assignee before April 1st, 1880, and there having been no reconveyance of the pro- perty to the insolvent, who had, however, ob- tained his discharge before action brought. Jb. See also Woodward et al v. Shields, 32 C. P. 282 ; Troop v. Hart, 7 S. C. R. 512. (b) Bights, Duties, and Liabilities. An assignee in insolvency bona fide suing in discharge of his duty as such assignee, will not be required to give security for costs on the ground that he is without means and not bene- ficially interested in the suit. Vars v. Oould, 8- P. R. 31. — Stephens, Referee. .59 BANKKJPTCY AND INSOLVENCY. 60 The plaintiff, an attorney, wag the oflBoial as- signee of an insolvent estate. He brought an action on behalf of the estate and used his own name as the attorney on the record. The plain- tiflf obtained a verdict : — Held, that under section 32 of the Insolvent Act of 1875, he was entitled to tax disbursements only against the defendants. Agnew v. Ross, 8 P. R. 67.— Osier. In trover for goods against an assignee in in- solvency, — Held, following Re Barrett, 5 A. R. 206, that the assignee may object to the ab- sence of a bill of sale on an alleged sale by the insolvent just as an execution creditor or subse- quent purchaser for value may do. Snarr v. Smith, 45 Q. B. 156. Upon the insolvency of the lessees, there were goods upon the premises belonging to them, and other goods stored with them, suflBcient to pay -the taxes in arrear ; and a warrant being issued, the bailiff notified the assignee, but forbore to distrain on the assignee's promise to pay, which promise was confirmed by the inspectors of the estate. The goods having been afterwards re- moved, an order was made directing the assignee to pay the taxes forthwith, with aU costs. In re Bowes, Insolvents, 5 A. R. 353. Held, affirming the judgment of the County -Oourt,that under sec. 67 of the Insolvent Act of 1875, all debts exceeding flOO must be sold sepa- rately, unless where there is a sale of the whole estate en bloc ; and the purchaser of such a debt, otherwise than the section directs, cannot recover against the debtor. Fisken v. 0' Neill, 6 A. R. 99. The rule of law which requires a mortgagee .selling under a power of sale in his mortgage to observe the terms of such power, is also appli- cable to sales by a trustee or quasi trustee acting under a power— the power must be followed, and the rule -applies with equal force to sales by an .assignee of an insolvent estate, under the Act of 1869, sec. 47, who in such cases acts under a statutory power authorizing a sale, "but only after advertisement thereof for a period of two months." An assignee proceeded to sell the lauds of the insolvent without giving notice of .such intended sale " for a period of two months " as prescribed by the Act, no sanction of the creditors thereto, having been given : — Held, a good objection to the title by a vendee of the purchaser at such sale. In re Jarvis v. Oooh, 29 Chy. 303. Retainer of solicitor by assignee under Insol- vent Act 1875. Liability for costs. See Butter- field V. Wells, 4 0. R. 168. 6. Proof of Debts. (a) Creditors holding Security. Under the Insolvent Act of 1875, a creditor holding security at the time of the insolvency, cannot realize the security, anil prove on the estate for the balance. Re Hurst, 31 Q. B. 116, commented upon. Re Beaiy, an Insolvent, 6 A. R. 40. See Beaty v. Samuel, 29 Chy. 105, p. 55. (b) Partnership Debts. Where, upon the dissolution of a firm, the business is continued by one of the partners, who assumes the liabilities, the joint assets remaining in specie are primarily applicable to the payment of the joint creditors of the firm. Re Walker, an Insolvent, 6 A. R. 169. Held, that under sec. 88 of the Insolvent Act of 1875, if the dividend is derived wholly out of joint estate, the joint creditors alone can share until fully paid ; if wholly out of separate estate, ■ it belongs entirely to separate creditors till they are paid, and if partly out of each class of assets, it should be divided pro rata between each class of debts. lb. See McKitricTcY.Haky, 46 Q.B. 246, p. 57. See, also Milk et al. v. Kerr et al., 7 A.R. 769 ; Kerr The Canadian Bank of Commerce, 4 0. R. 652. (c) Set-off. By a lease, made by the defendant to the insolvents, the lessees were ' ' to get pay for im- provements at a fair valuation, and to have the right of purchase during the term "by paying the lessor first all claims by way of notes, or otherwise he holds, or may hold against the said lessees, and the sum of $235.15 as purchase money," &c. In January, 187?, an attachment under the Insolvent Act of 1869, was issued ; and in March defendant filed his claim, which included a note for |500, most of which sum had been expended in improvements, and had been obtained for that purpose. There had been a valuation of the improvements at the end of the term in 1877, at $275, in which defen- dant did not take part, and the assignee sued defendant for that sum on his covenant : — ^Held,, Armour, J., dissenting, that the note formed an equitable if not a legal set-off against the claim ; that the right to such set-off was matter of pro- cedure, and governed therefore by the Act of 1875, not the Act of 1869 ; and that defendant was not precluded by having proved his chum. Quaere, whether under the lease the payment of defendant's claim was not a condition precedent to his paying for improvements. Mason v. Macdonald, 45 Q. B. 113. The difiference between our insolvent law, as to set-off, and that in England and the United States remarked upon. lb. Per Armour, J., the question was governed by the Act of 1869, and the plaintiffs's claim not being liquidated, the defendant's claim could not be the subject of set-oflf. lb. (d) Interest. After payment by an insolvent's estate of 100 cents in the dollar the creditors claimed interest on their claims out of a surplus in the hands of the assignee : — Held, (reversing the decision o£ the court below) that notwithstanding the pro- visions of sec. 99 of the Insolvent Act, interest was payable on all debts originally bearing inter- est by contract or otherwise, but not where it was claimable by law as damages only : — Held, also, that the claim to such interest was properly brought before the court by petition filed by the inspectors, who, acting under a resolution of creditors, had requested the assignee to pay sucb interest. In re McDougall, 8 A. E. 309. 61 BANKRITPTOY AND INSOLVENCY. 7. Fraud and Frauduknt Preferences. (a) Transactions Protected. The defendants discounted at a bank a promis- sory note which A. had given them, and on maturity it was paid to the bank out of A.'s moneys within thirty days of his insolvency. In an action by the assignee to recover the amount from the defendants as being a payment within s. 134 of the Insolvent Act of 1875 :— Held, re- versing the decision of the County Court, that they were not liable, as the payment was not made to them, but to the bank, who were the actual creditors. Miller v. Harvey, 6 A. E. 203. D. had been in the habit of obtaining from the defendant discounts, at an exorbitant rate of in- terest, of notes received by D. in the course of his business, very few, if any, of which were paid at maturity so that in the course of about two years' dealings D.'s indebtedness amounted to about $7,000. At this time D. , who was repre- sented as a man of very sanguine temperament, entered into a ne.vr line of business after obtain- ing goods on credit to the amount of |4,000 or ^5, 000, having represented to the persons supply- ing such goods that, although without any avail- able capital, he had experience in business. About twelve days afterwards, 1)., being threa- tened by a mortgagee with foreclosure proceed- ings, which, if persisted in, would have had the effect of closing up his business, applied to the defendant, who advanced him $300, part of which was applied in paying the overdue interest on the mortgage, and the surplus in retiring a note of D. 's held by the defendant, who granted D. an extension of time on other notes held by himself at a reduced rate of interest (if paid promptly) ; and the defendant then intimated to D. that he would have to work carefully to get through. In a suit impeaching the mortgage to the defendant, it was Held (reversing the decree pronounced by Spragge, 0.,) that the plaintiff had not satisfied the onus which was cast upon him by the Insolvent Act, of shewing that the mortgage given by D. had been so given in con- templation of insolvency ; and, the presumption of law being in favour of innocence and fair deal- ing, the bUl was dismissed, with costs. McCrae V. Whyte, 7 A. R. 103. K. had a line of discount with the defendants of 120,000, for which $5,000 collaterals were de- posited as security. Sometime afterwards his indebtedness to the bank was nearly doubled when the agent insisted upon obtaining additional security by deposit of further collaterals, and which some months before the insolvency were deposited. This was impeached by the assignee in insolvency of K. as being an unjust preference of the bank : — Held, affirming the decision of the court below, that the transfer to the defen- dants, of the securities as collaterals was valid, the plaintiff having failed to establish that K. contemplated insolvency : Held, also, that the want of knowledge by the defendants' manager would not have availed the defendants, if the insolvent had, in fact, made the transfer in con- templation of insolvency. Nelles v. The Bank of Montreal, 28 Ohy. 449 ; 7 A. R. 743. Another transfer had been made to the bank within thirty days of the iosolvenoy, which was also impeached, but upon the faith of which the bank had made advances to K. exceeding the 62 value of the securities so transferred, which would not otherwise have been made : — Held, that the bank had notthereby obtained an unjust preference, and therefore the transaction could not be impeached. lb. The insolvent made a cash payment of $1,000 to the bank a few days before his insolvency, but it was sworn thathehad been allowed tooverdraw upon an agreement to cover it by this pajrment, and it was not shewn that the bank manager had, at that time, probable cause to believe in his inability to meet his engagements in full : — Held, that this money could not be recovered back. lb. Upon the arrangement for a deed of composi- tion and discharge, the creditors required security for payment of the composition, and one Meikle, a creditor, agreed to endorse the composition notes upon receiving a mortgage upon the pro- perty settled upon the insolvent's wife, securing him in respect of his endorsations, and on pay- ment of $250 in addition to his composition : — Held, not a fraudulent preference within the meaning of the Act. Re Russell, 7 A. R. 777. A mortgage is a " contract " within the mean- ing of the Insolvent Act of 1875, sec. 130 : — Held, in the circumstances stated in the report of this case, that jthe defendant might hold a mortgage in his favour created by a person in insolvent circumstances for certain advances made by the mortgagees contemporaneously with the execution of the incumbrance, and also for future advances intended to be secured thereby, though it was not shewn that such advances were made for the purpose of enabling the mort- gagor to carry on his business, but that such mortgage was not a valid security for antecedent advances made by the mortgagee, nor for notes endorsed by the mortgagee for the mortgagor, . biit not paid, in respect of which therefore he had been a surety only, not a creditor. Smith v. Harrington, 29 Chy. 502. See Davidson v. Maguire. 27 Chy. 482 ; 7 A. R. 98 ; Re Russell, 7 A. R. 777, p. 66. See, also, Boustead v. Shaw, 27 Chy. 280. (b) Transactions Avoided. The bill was filed by the assignee in insolvency of one T., to set aside a mortgage given by him shortly before his insolvency, alleging that the defendant T. N. , who was endorser of a note for $2,000 made by T,, procured the mortgage in question for that amount to be made in the name of his brother J, N. , and that he gave J. N". the $2,000 with which the note was retired. T. N. swore that he paid J. N. the money in discharge of a debt due by him to J. N. and P. N., another brother. J. N". also swore that the mortgage moneys belonged to him and P. N"., but their evidence was uncorroborated, and P. N. was not called : — Held, reversing the decree of Proudfoot, V. C, that under the suspicious circumstances which surrounded this case, the onus was wholly upon the defendants, to prove not only that a debt was due from T'. K, J. N. and P. JST., but that the money received by them in payment thereof had been honestly advanced to T. on the security of the impeached mortgage, which thci evidence set out in the report failed to establish. The rule laid down in Merchants' Bank v. 63 BANKRUPTCY AND INSOLVENCY. U Clarke, 18 Chy. 594, that transactions of this kind should not be held sufficiently established by the uncorroborated testimony of the parties thereto — approved of. Morton v. Nihan et al. 5 A. K. 20. The plaintiffs, who were sub-contractors for the stone and brickwork of a public school, and who were to receive payment from the principal con- tractors, who alone were recognized by the public school board, procured an assignment to them- selves of the balance due them by the contrac- power to deal with the subject of that section, it would be binding, but if not, then the same en- actment in s. 8, sub-s. 7, of the Act of 1864, i& unrepealed and in force. lb. See Lightbound v. Hill, 32 C. P. 249, p. .57. 8. Discharge. Under sees. 56 and 57 of the Insolvent Act of 1875, a judge has no power to grant an insolvent his discharge, where he has failed to keep a cash tors for their completed work, and payable to book and account books suitable for his trade, the contractors by the board. The contractors ^., , , ■ ■ . , , ' were at the time unable to pay their debts, which the plaintiffs knew, and an attachment in insol- vency issued ag-iinst them within three months afterthe assignment of the claim : — Held, affirming the judgment of Proudfoot, V. C, that the tran- saction was an unjust preference under sec. 133 of the Insolvent Act of 1875 ; and, Semble, that it was also within the meaning of sees. 130 and 132, and the plaintiffs could not maintain a suit to enforce payment of the balance assigned to them. Oriffit/is et al. v. Parry Assignee, 6 A. E. 672. (c) Fraud in obtaining Goods or Credit. Where a judgment has been recovered for a debt without fraud being charged under s. 136 of the Insolvent Act of 1875, the plaintiff is barred by such recovery from bringing another action against the debtor charging the fraud, even although the judgment was recovered by default, for the plaintiff might have declared, averring such fraud, and had the question tried. Lightbound v. Hill, 32 C. P. 249. The plaintiffs sued for goods sold and delivered to defendants who were insolvents, and under s. 136 of the Insolvent Act of 1875, charged the defendant.^ with fraud in procuring the goods on credit, knowing themselves to be unable to meet their engagements, and concealing the fact from the plaintiffs, thereby becoming their creditors with intent to defraud them. The defendants were domiciled in Ontario, and the contract was made in England : — Held, affirming the judgment of the Court of Common Pleas, reported in 31 C. P. 112, that the act charged was not a crime, nor the charge of fraud a criminal proceeding, but merely a proceeding at the instance of a private jierson to enforce payment of a debt ; and it made no difference therefore ,that the contract out of which the cause of action arose, was made in England. Peelc et al v. Shields et al., 6 A. B.. 639. Affirmed in Supreme Court, see 20 C. L, J. 65. Per Spragge, C. J. 0., and Morrison, J. A.— Sec. 136 of the Insolvent Act of 1875, dealing with matter of procedure incident to the law of bankruptcy and insolvency, was within the juris- diction of the Parliament of Canada to enact. lb. Per Burton, J. A.— Sec. 136, which gives certain creditors an additional remedy in the Provincial Courts for the recovery of their debts in full, is ultra vires of the Parlirment of Canada ; but s.' 8 sub-s. 7 of the Insolvent Act of 1864, to the same effect, is still in force, the Parliament of Canada having no power to repeal it. Per Patterson, J. A. It is immaterial whether s. 136 is ultra vires or not ; for if the Parliament of Canada had the I even although such omission may not be due to any fraudulent intention. Re Oooding, an Insol- vent, 5 A. E. 643. Held, that the insolvents were not entitled ot a discharge under sec. 65 of the Insolvent Act ot 1875, as the facts set out in the report of the case, did not shew that their failure to pay a dividend of fifty cents in the dollar was caused by circumstances arising more than one month after the mailing of the declaration of insolvency, for which they could not be justly held respon- sible within the meaning of the third proviso to that section. Quaere, as to the effect of neglect- ing to mail such declaration to each creditor, as required by that section. In re Galbraith and Christie, 5 A. U. 358. Where an insolvent omits to keep hooka of account suitable for his trade, he is not entitled to an immediate discharge under the Insolvent Act of 1875, though such failure may not be owing to any improper motive. In this case, however, as the insolvent had kept certain books, which although imperfect were honestly meant as a business record, his discharge was only sus- pended for three months. Re Bullivani, an Insolvent, 5 A. R. 638. The insolvent swore to an affidavit verifying the statement of liabilities and assets, but inad- vertently omitted the statement of the causes to which he attributed his insolvency, which, how- ever, he made verbally at the first meeting of creditors, where the contestant was present. This defect was not pointed out for more than a year, and after the discharge had been applied for, and the insolvent then swore to another affidavit supplying the omission : — Held, revers- ing the decision of the Judge of the County Court, that the omission to furnish the statement within seven days from the assignment under s. 17, was immaterial, as it expressly gave the right to correct or supplement the statement which had been done :— Held, also, that under s. 57, the omission complained of would not disentitle the insolvent to his discharge, as it was not wil- ful : — Held, also, that under the circumstances more fully set out in the report of the case, the opposing creditor was estopped from objecting to the omission. Re Martin and English, Insol- vents, 5 A. R. 647. To an action by a commercial traveller for wages, defendants pleaded a deed of compogi* tion and discharge in insolvency. The plaintS replied that the claim was privileged :— Held", reversing the judgment of the Q. K. 45 Q- B. 188, that privileged claims are not within the class of debts mentioned in see. 63 of the Insol- vent Act of 1875, to which a discharge does not apply without the consent of the creditor. Fryer V. Shields et al., 6 A. R. 57. 65 BANKRUPTCY AND INSOLVENCY. 66 Held, affirming the judgment of Cameron, J., that under the Insolvent Apt of 1S64, s. 9, sub-s. 5, a discharge in insolvency would form no answer to proceedings upon a judgment against the defendant for seduction. Senninger y. Thrasher, 9 P. R. 206 ; 1 0. R., Q. B. D. 313. In 1866 judgment was recovered against the defendant in this action for breach of promise of marriage, and in another for seduction. The defendant then made an assignment under the Insolvent Act, 1864, having no assets, and his only creditors being the plaintiffs in the two actions. No creditors appeared, and after twelve months he petitioned for his discharge. The application was duly advertised, and no opposi- tion being made, was granted. He subsequently - acquired some property, and execution was then issued in this action. The master in chambers refused to set aside the execution on motion made by the defendant, and his order was re- versed by Osier, J. : — Held, affirming the decision of Osier, J., that the want of assets at the time of making the assignment could not be set up on the application as a ground for avoiding the dis- charge, but was a matter for the consideration of the insolvent court upon the application therefor, and that unless attacked for fraud it was a com- plete answer to the plaintiff's claim. Held, also, that the plaintiff's claim was one which was barred by the discharge. Thomas v. Hall, 6 P. R. 172, and Parke v. Day, 24 C. P. 619, com- mented upon. Forrester v. Thrasher, 9 P. R. 383 ; 2 0. R., Q. B. D. 38. A final order of discharge obtained by an in- solvent upon a deed of composition and discharge confirmed, will be vacated by this court, on bill filed by a creditor, party to the insolvency pro- ceedings, where such discharge has been obtained by a fraudulent concealment of assets. An in- solvent firm, on September 16th, 1878, made an assignment under the Insolvent Acts. On Octo- ber 2nd, 1878, a deed of composition and dis- charge, under the said Acts, was executed, whereby the said firm covenanted to pay a cer- tain dividend, and on February 28th, 1879, the judge in insolvency made an order for its confir- mation, a sworn statement of the assets and lia- bilities of the firm having been first duly filed by the members thereof. Long afterwards one of the creditors, who had consented, on payment of a certain dividend, to assign his claim to S. as trustee for the insolvent firm, and for the pur- pose of executing the said deed, though he him- self refused to execute it, discovered that C, one of the members of the firm had fraudulently concealed some of his assets, and he filed a bill in this court to have the said deed of composi- tion, and the order confirming the same, declared void as against him : — Held, that the deed and order of confirmation must be vacated as regarded C, and the insolvency proceedings re-opened, so that there might be a due administration of the assets, thus withheld, and the assignment to S. must be prevented from being set up as a bar to such relief. McOee v. Cam,pbell et al., 2 0. R. , Chy. D. 130; reversing & C. 28 Chy. 308. Held, also,(Proudfoot, J., dubitante),inasmuch as the assets fraudulently concealed were C.'s private property and not the property of the partnership, the discharge should only be vacated as to the private estate of C. Per Proudfoot, J., the assignment to S. was invalid, being made 5 without consideration, or for a consideration, which was no satisfaction, being the payment of a less sum for a greater ; but even if it must be taken to have been for value, it was sufficient for the plaintiff to shew that it was entered into under a mistake caused by the insolvent firm, as to the true amount of the assets, whether the firm acted innocently or otherwise. S. O. 2 0. R., Chy. D. 130. It also appeared that among C. 's assets was a certain sum received by him, or to which he had a claim from a certain railway company as com- pensation for services rendered as temporary acting president : — Held, that 0. was bound to return as an asset the portion of the compensa- tion payable for services rendered up to the date of the assignment in insolvency, but not the remainder. Ih. The insolvent, nine months before his insol- vency, stated to the contestant that he had a. surplus of $40,000. When he failed it appeared. that there was a deficiency of about that amount, the difference not being satisfactorily, if at all, accounted for. He did not produce all his books, but it was proved that they were kept in such a manner that they would not shew the true state of his affairs. The cash-book had never been balanced, and no balance sheet was ever made out ; bills were discounted which did not appear in any of the books, and goods were transferred from his wholesale to his retail place of business- without entry in the books that were kept : — Held, reversing the order of the judge below granting a discharge to the insolvent, 1, that- though an insolvent may be guilty of the offence of not fully, clearly, and truly stating the causes of his insolvency, that is no ground for refusing the discharge, even after a conviction for the offence ; 2, that the omission to keep any books- prevents the judge from granting a discharge, whether the intent be fraudulent or not ; but, 3, when they have been kept, it is not essential, on the one hand, that they should be kept in the: most approved form, nor are they sufficient, on the other, ho«-ever carefully kept in some re- spects, if they fail to exhibit the insolvent's exact- position ; 4, that under the facts in this case the insolvent was not entitled to his discharge. Li- berty to the insolvent to renew the application was given, if he should be so advised on his pro- ducing the remainder of his books. In re Hill, 7 A. R. 694. Semble, that if an insolvent obtains the con- sent of the required number of creditors or th& execution of a deed of composition and discharge, he may at once make the application without waiting for the expiration of a year ; he is not precluded however, from applying after the expi- ration of a year, under the 64th section of the Insolvent Act (1875). lb. In order to absolutely disentitle an insolvent to his discharge on the ground of failure to keep- proper books of account, where the case is not one of a commercial business, the party opposing the discharge must shew that there were no- books ; or, if there were, in what respect they were defective. Re Russell, 7 A. R. 777. It is no objection to an application by an in- solvent for a discharge under ss. 64 and 65 of the Act, that a previous application under s. 56- to confirm a deed of composition and discharge^ 67 BANKS, had been refused, where it appeared that the ground of refusal was that the deed was not exe- cuted by a sufficient number of creditors who had proved rlaims. iJ. Quasre, whether[an assignee would be justified in reconveying the estate to the insolvent under the directions contained in a deed so insuffi- ciently executed. Tb. A post nuptial settlement upon his wife made by an insolvent at a time when he was not aware ■of his inability to meet his liabilities, and while he had contracts on hand from which he might reasonably have expected to make a profit, -though they afterwards proved unsuccessful ; — Held, no ground for refusing the insolvent his ■discharge, lb. Upon his appointment the assignee took an inveptory of the property, but owing to the execution of the deed of composition and discharge, afterwards declared inoperative, did mot remove it : — Held, not a retention or con- ■cealment by the insolvent, so as to disentitle him to his discharge ; in such a case the reten- tion and concealment necessary to disentitle an insolvent to his discharge must be wilful and fraudulent, lb. See Beaty v. Samuel, 29 Chy. 105, p. 55. BANKS. I. Cheques and Pass Books, 67. II. Bills and Notes, 68. III. Deposits, 69. IV. Purchase or Sale of Goods by 69. V. Miscellaneous Cases. 70. I. Cheques and Pass Books. The plaintiff 's valuator, one H. , filled in the blanks in an application for a loan on statements ■of one S. who forged the names of J. T. B. and I. B. as appHcants, and although H. had never seen the property or the applicants, he certified a valuation to the plaintiffs, who accepted the loan, and signed his name as witness to the sig- natures of the applicants. Cheques in payment thereof to the order of the supposed borrowers were obtained by S., who forged the names of the payees, 'endorsed his own name, and received pay- ment of the cheques, which were drawn upon the defendants, through other banks, who presented them to the defendants and received payment in good faith. The fraud was not discovered for some time, during which the cheques were returned to the plaintiffs at the end of the month as paid, and the usual acknowledgment of the correctness of the account was duly signed : — Held, affirming the judgment of the Queen's Bench, 45 Q. B. 214, that the plaintiffs were not estopped from recovering the amount paid on the forged endorsements from the defendants by their agent's negligence, as it did not occur in the transaction itself, and was not the proximate cause of their loss : — Held, also, that the ac- knowledgment of the plaintiffs of the correctness of the account at the end of the month, was at most an acknowledgment of the balance on the assumption that the cheques had been paid to the proper parties : — Held, also, that it could not be said that the cheques were made payable to fictitious payees, and were therefore payable to bearer. Agricultural Savings and Loan Assodor tion V. Federal Bank, 6 A. R. 192. II. Bills and Notes. The plaintiff, a customer of the defendants' branch bank at Chatham, handed to the manager there for collection a note made by Gr. C. to and endorsed by T. C, both of whom lived at De- troit, where the note was made and payable. The Chatham branch stamped above the en- dorsement of T. C. a special endorsement to themselves, but the Chatham manager without endorsing the note sent it to their Windsor branch for collection — Windsor being their near- est branch for Detroit — without any instructions as to the place 6f residence of the endorser, who, however, was well known in Detroit. The manager of the Windsor branch endorsed it to the cashier of the First National Bank, their agent there, and sent it to him for collection. Payment having been refused upon presentation they handed it to a notary, who duly protested it, but enclosed the notice for T. C, the endor- ser, in the envelope containing the notice to the Windsor branch, addressed to the manager of that branch. A clerk in the Windsor branch sent the notice for T. C. to the Chatham branch, which was duly posted at Windsor, but was never received from the Chatham post office, and T. C. the endorser, never received any notice. The Chatham manager received the protest by due course of mail, and could have seen from it in time to rectify the mistake that the notice for T. C. had been addressed to the Windsor agent. The endorser having been sued in Detroit escaped on the ground of want of notice, and, the maker being worthless, the payee sued defendants for neglect with regard to such notice. It appeared that in Detroit it was the custom for the notary to send notices for the endorsers to the hank from which the note was received. It was con. tended for defendants that the branches were for this purpose distinct ; that the notice was properly sent to Windsor, and thence to the Chatham branch, whence the note came : and that but for the neglect of the Post Office the notice would have been duly received at Chat- ham and sent to the endorser. But, Held, that the defendants were liable : that on sending the note to thBir Windsor agent they should have given proper information as to the residence of the endorser for the guidance of the notary : and that the Chatham branch having notice from the protest, which they should have examined, that the notice for the endorser had been sent to Windsor, they should at once have had a proper notice served in Detroit, which they could have done in time. Steinhoffv. The Uerclw/nts' Bari, 46 Q. B. 25. Endorsement of note by bank manager — Sap? ciency of. See Small v. Riddel et al. 31 0.* 373.' See Black v. Strickland, 3 0. R., Chy. !>• 217, p: 80 ; NeUes v. The Bank of Mcmtreal, 28 Chy. 449 ; 7 A. E. 743, p. 61. •69 BARRTSTER-AT-LAW. 70 III. Deposits. One McE. ; who was the assignee of an insol- vent estate, kept the estate accciunt as well as Ms private account, at the defendants' bank. Certain notes of the estate were deposited by him with defendants for collection, and the proceeds placed to the credit of the estate, which McE. , as assignee drew out by cheque, and re-deposited with defendants to his private account, and then used for his own purposes. It did not appear that the bank derived any benefit from the trans- fer, or that MoE. was indebted to them : — Held, that defendants were not liable to repay the amount to the estate. Clench v. Consolidated Bank of Canada, 31 0. P. 169. On 22nd August, 1879, the defendants' account at the Bank of Montreal, where the corporation account was kept, was overdrawn $1,157.64. A resolution of the council was thereupon passed, authorizing the mayor,_to borrow from some bank- ing institution a sum not exceeding |2000, to meet the current liabilities unto the taxes were available, and authorizingjhim and the town clerk to sign the necessary documents therefor, and to affix the corporation seal. On 2nd September a promissory note, in accordance with this reso- lution, was made, and was discounted at the Bank of Montreal, and the proceeds placed to the defendants' credit. On the 5th September, a similar note was made and discounted at the plaintiffs' bank, where the defendants had kept an account, but which was virtually closed, though there was a small balance still remaining to their credit. The last note was in fact fraud- ulently procured to be made and discounted by one T., who was the defendants' clerk and treas- urer, and who was in default, to cover up his de- falcations, but of this the plaintiflFs knew nothing. T. , as such treasurer, then, chequed out of plain- tiffs' bank $1,656 of this amount, which he de- posited to the defendants' credit at the Bank of Montreal, and then paid it out on corporation cheques for authorized corporation purposes : — Held, in an action for money had and received that the plaintiffs' were entitled to recover the ^1,656, for that T., though acting fraudulently, had acted in a matter within the scope of his au- thority, and the defendants had received the benefit of the fraud. Molsons' Bank v. The Cor_ poration of the town of Brockville, 31 0. P. 174 _ The plaintiffs were sureties to a bank for a debt due by a company, and for which the bank held other notes as collaterals. Under a special agreement made in a prior suit, the receiver in such suit deposited the proceeds of such coUa- -terals in such bank subject to the order of the court. The plaintiffs claimed to apply the pro- ceeds so deposited to reduce the debt of the oompany, but the bank refused so to apply them without an order of court :— Held, (1) that the bank was constituted a stakeholder of such moneys, and could not so apply them without the sanction of the court : (2) that the bank was not chargeable with interest on the moneys so deposited, even though it might have made a profit on such moneys. Button v. Federal Bank, 9 P. K. 568.— Hodgins, Master. IV. PUBCHASB OB SaLE OF GoODf? BY. By the Banking Act, 34 Vict. c. 5, D., banks are prohibited from buying or selling goods or merchandize : — Held, therefore, that an action would not lie against an incorporated bank for breach of warranty on the sale of a horse-power machine. Radford v. The Merchants Bank, 3 0. E,., 0. P. D.529. V. Miscellaneous Cases. Liability of bank on guarantee of local agent. See Dohell et al. v. Ontario Bank et al. , 3 O. R. Chy. D 299. Since reversed in Appeal, see 20 0. L. J. 144. Claim of bank under warehouse receipt. See Smith V. The Merchants' Bank, 28 Chy. 629, pp. 82, 83. BARRISTER- AT-LAW. Counsel Fee — See Costs. By 37 Viet., c. 20, N. S. (1874), the Lieuten- ant-Governor of the province of Nova Scotia was authorized to appoint provincial officers under the name of Her Majesty's counsel learned in the law for the province. By 37 Vict., c. 21, N. S., (1874), the Lieutenant-Governor was authorized to grant to any member of the bar a patent of precedence in the courts of the province of Nova Scotia. R. , the respondent, was appointed by the Governor General on the 27th December, 1872, under the great seal of Canada, a Queen's Counsel, and by the uniform practice of the court he had precedence over all members of the bar not holding patents prior to his own. By letters patent, dated 26th May, 1876, under the great seal of the province, and signed by the Lieuten- ant-Governor and provincial secretary, several members of the bar were appointed Queen's counsel for Nova Scotia, and precedence was granted to them as well as to other Queen's counsel appointed by the Governor-General after the 1st of July, 1867. A list of Queen's counsel to whom precedence had been thus given by the Lieutenant-Governor, waspublished in the Royal Gazette of the 27th May, 1876, and the name of R. , the respondent, was included in the list, but it gave precedence and preaudience before him to several persons, including appellants, who did not enjoy it before. Upon affidavits disclosing the above and other facts, and on producing the original commission and letters patent, R. , on the 3rd January, 1877, obtained a rule nisi to grant him rank and precedence over all Queen's counsel appointed in and forthe province of Nova Scotia since the 26th December, 1872, and to set aside, so far as they affected R's precedence, the letters patent, dated the 26th May, 1876. This rule was made absolute by the Supreme Court of Nova Scotia, on the 26th March, 1877, and the decision of that court was in substance as fol- lows : — 1. That the letters patent of precedence, issued by the Lieutenant-Governor of Nova Scotia, were not issued under the great seal of the province of Nova Scotia ; 2. That 37 Vict., caps. 20, 21, of the Acts of Nova Scotia, were not ultra vires ; 3. That s. 2, cap. 21, 37 Vict., was not retrospective in its effect, and that the letters patent of the 26th May, 1876, issued under that Act could not affect the precedence of the respon- dent. On the argument in appeal before the Supreme Court of Canada the question of the 71 BILLS OF EXCHANGE AND PROMISSORY NOTES. n validity of the great seal of the provinceof Nova Scotia was declared to have been settled by legis- lation, 40 Vict., c. 3, D., and 40 Vict., c. 2, N. S. A preliminary objection was raised to the jurisdiction of the court to hear the appeal. Held : 1. That the judgment of the court below was one from which an appeal would lie to the Supreme Court of Canada; (Fournier, J., dis- senting.) 2. Per Strong, Fournier and Tasch- ereau, JJ. :— That 37 Vict., c. 21, N. S., has not a retrospective effect, and that the letters patent issued under the authority of that Act could not affect the precedence of the Queen's counsel ap- ^ointedby the Crown. 3. Per Henry, Taschereau, and Gwynne, JJ. : — That the British North America Act has not invested the legislatures of the provinces with any control over the appoint- ment of Queen's counsel, and as Her Majesty forms no part of the Provincial Legislatures as she does of the Dominion Parliament, no Act of any such Local Legislature can in any manner impair or afifect her prerogative right to appoint Queen's counsel in Canada directly or through Her Representative, the Governor- General or vest such prerogative right in the Lieutenant Governors of the provinces ; and that 37 Vict., caps. 20 and 21, N. S., are ultra vires and void. 4. Per Strong and Fournier, JJ. ; — That as this court ought never, except in cases when such adjudication is indispensable to the decision of a cause, to pronounce upon the constitutional power of a legislature to pass a statute, there was no necessity in this case for them to express an opinion upon the validity of the Acts in question. Lenoir v. Sitckie, 3 S. C. R. 575. Junior counsel are not at liberty to take po- sitions in argument which conflict with the positions taken by their leaders. The hiter- vationaf Bridge Co. v. The Canada Southern R. W. Co., and The Canada Southern R. W. Co. v. The International Bridge Co. 7 A. E. 226., but see 2g»C. L. J. 358. As to right of different counsel representing defendants with common defence to cross-exam- ine a witness separately. See Walker v. McMil- lan, 6 S. C. R. 24, p. m-. 7GS Practising barrister dealing largely in land transactions, but not shewn to be dependent thereon for his living.: — Held not a trader under the Insolvent Act. Joseph v. Haffner, 29 Chy. 421. BASTARD. A mother some months before her death, con- signed her illegitimate child, seven years of age, whose reputed father was dead, to the custody of a protestant institution, she being a Roman Catholic. Immediately before her death she signed a paper expressing her desire to have her chUd delivered up for nurture to a Roman Catho- lic institution : — Held, that the court had not power to compel the delivery up of the child, and that the express wish of the mother was no ground for interference. In re Smith, an Infant, 8 P. R. 23.— Hagarty. The plaintiff, as administratrix, sued the de- fendants, under 44 Vict. c. 22, s. 7, 0., for the death of her illegitimate son, a brakesman on the defendants' railway, who was kiUed by being carried against a bridge not of the height required by that Act, while on one of their trains passing underneath it. The bridge belonged to another railway company, which had the right to cross the defendants' line in that way, and though tha time allowed by the statute for raising the bridge had expired, they had not done so. The jury found that the defendants had been guilty of negligence in not raising, or procuring to ba raised, the bridge : — Held, that as the Act wai intended to give no greater right to recover thai Lord Campbell's Act, therefore the plaintiffs, relationship to the deceased prevented her re- covery. Gibson v. Midland R. W. Co., 2 0. E,, Q. B. D. 658. BATTERY. See AsSATJLT. BAWDY-HOUSE. Held, that a conviction under 32-33 Vict. c. Z% s. 2, sub-s. 6,Dom., for being an unlawful (instead of an habitual) frequenter of a house of ill-faiue, and which adjudged the payment of costs which is unauthorized by the statute, must be quashed. That section makes the being such habitual fre- quenter a substantial offence, punishable as in s. 17, and does not merely create a procedure for trial and punishment. Regina v. Clark, 2 0. E.^ Q. B. D. 523. See also Regina v. Flint, 4 0. R. 214. BILLIARD TABLES. Powers of Provincial Legislature as to restrict- ing the hours within which billiard rooms in taverns may be kept open. See Regina v. Hodge, 46 Q. B. 141 ; 7 A. R. 246 ; 9 App. Oas. 117. BILLS OF EXCHANGE AND PROMISSORY NOTES. I. Paeties. 1. Agents — See Principal akd Agent. 2. Married Women — See Husbaud Aiii> Wife. 3. Partners — See Partnekship. II. Form, 73. III. Stamps, 73. IV. Alteration, 74. V. Presentment pob Payment, Protest, AND Notice of Dishonour, 75. VI. Acceptor and Maker, 77. VII. Drawer aud Endorser, 77. VIII. Actions on. 1. At what Time, 78. 73 BILLS OF EXCHANGE AND PROMISSORY NOTES. 7+ 2. Pkas, 78. 3. Jurisdiction of Division Courts — See Division OotrRTs. IX. Defences to Actions. 1. Plaintiff not the holder, 79. 2. Consideration as a ground of Defence. (a) Accommodation or want of Con- sideration, 80. (b) Fraud and Illegal Consideration, 81. (c) Partial failure of Consideration, 81. 3. Payment, 82. 4. Other Defences, 82. X. Duties of Banks in Connection with Bills or Notes — See Banks. XI. Pkemiitm Notes— iSee Insurance. II. 'Form. Held, that tlie note in this oaae was not a ne- gotiable promissory note, not being made pay- able absolutely and at all events, but only as . 320. Held, also, the notes having been altered in a material part, D. was discharged, and S. could not be protected on the ground of any negligence on D.'s part in respect to the note in which the endorsement was written along the edge of the paper, inasmuch an the notes were issued in a perfected shape, and the doctrine of negligence does not apply to such perfected instruments . lb. It appeared that S. was a private banker ; that he had been informed before taking the notes that they were given in purchase of patent rights : that he noticed the erasure in the one of them first purchased, and that he paid much less than the commercial value of them, while they both bore marks of infirmity and indeed of knavery : — Held, S. could not be considered an innocent holder of the notes. lb. After a promissory note, made by three per- sons, in these words : ' ' We, either three of us, promise to pay D. P. or bearer," had been trans- ferred to the plaintiff's testator, the payee's name was added to the foot of the note, appar- ently as maker. It did not appear how it came there, but it was not his signature : — Held, affirming the judgment of the County Court, Morrison, J. A., dissenting, that it was such a material alteration as to vitiate the note ; and that this would have been so even if the name had been placed there by the payee or by his authority. Seid v. Humphrey et al.,6 A. R. 403. Held, also, that prima facie the name was placed there improperly ; that it would have lain upon the testator, if alive, to account for the alteration, and his death did not dispense with this requirement. Per Morrison, J. A. — As the name of the payee was forged, it was ineffectual to alter the character of the note, and therefore, did not vitiate it ; and in the absence of evi- dence to shew how the name was added, the presumption would be that, if genuine, it was placed there as an endorsement. lb. V. Peesektmbnt for Payment, Peotest, and Notice of DisHONOtrR. The defendants made a joint and several pro- missory note with one H., as sureties for him, payable to the plaintiff: — Held, affirming the judgment of the County Court, that in default of payment at maturity their liability to pay became absolute ; and that it was no defence for them that the plaintiff neglected to present the note for payment, or give notice of non-payment by H., of which they were ignorant, and that believing the note had been paid by H., they took no steps to recover from him, although h* was able to pay, and before they became aware of such non-payment H. had become insolvent. Wilson V. Brown et al. , 6 A. R. 87- In an action upon an overdue promissory note- payable at a particular place, it is not necessary to shew that there were not funds at the place named wherewith to retire the bill ; all that i& necessary in such case, even as against an indor- ser, is to shew presentment, non-payment, and notice of dishonour. McDonald v. McArthur, 8 A. R. 553. The appellants discounted a note made by P. and endorsed by S. in the Bank of Commerce,. S. died, leaving the respondent his executor. who proved the will before the note matured. The note fell due on the 8th May, 1879, and was. protested for non-payment, and the bank, being unaware of the death of S., addressed notice of protest to 3. at Toronto, where the note was^ dated, under 37 Vict. c. 47, s. 1 (D). The appellants who knew of S. 's death before ma- turity of the note, subsequently took up the note from the bank, and, relying upon the notice of dishonour given by the bank, sued the defendant: Held, reversing the judgment of the Court of Appeal, 5 A. R. 458, which affirmed the judg- ment of the Queen's Bench, 45 Q. B. 32, that the holders of the note sued upon when it matured, not knowing of S.'s death, and hav- ing sent him a notice in pursuance of 37 Vict. c. 47, 3. 1, gave a good and sufficient notice to- bind the defendant, and that the notice so given enured to the benefit of the appellants. Cos- grave V. Boyle, 6 S. C. R. 165. Defendants were maker and endorser respec- tively of a promissory note for the accommoda- tion of D. , who discounted it with the plaintiffSf they having knowledge of the facts. On the maturity of the note plaintiffs handed it to D., who was their solicitor, for protest. D. did not protest or notify defendants of its dishonour, bnt delivered it to them, adding that he bad paid it. About three months after its maturity D. ab- sconded in insolvent circumstances, and after that defendants were for the first time notified of the nonpayment of the note. In an action against defendants on the note they pleaded, on equitable grounds, the above facts, and that by the laches of the plaintiffs they were prevented from obtaining indemnity from D., and that if compelled to pay the note, they would be de- frauded out of the amount : — Held, a good defence, and that the defendants were disohargr ed. Canadian Bank of Commerce v. Green e! al, 45 Q. B. 81. A notary at Montreal, Quebec, protested a notfr upon which the defendant, an attorney prac- tising at Belleville, Ontario, was endorser. Tie- notary could not read the defendant's signature^ but made an imitation of it upon the notices and in the superscription of the letter which was- addressed to " BeUeviUe P. 0.," i.e., Province of Ontario. The defendant was well known at, and constantly received letters from the Belleville Post Office. There was proved to be a BeUeviUe in New Brunswick. Other notes, with defen- dant's endorsement thereon, had been protested by the same notary. The defendant swore thsfr he had never received the notice ; but his clerks, who were accustomed to take his letters froffi 77 BILLS OF EXCHANGE AND PEOMISSORY NOTES. 7S the post office, were not called. The notice to another endorser, addressed to "Belleville P. O.," was received by him :— Held (Cameron, J., dissenting), that if the imitation of the defen- dant's signature put upon the notice addressed to Belleville was an exact imitation of defendant's signature upon the note, and such notice was posted at Montreal, it would have beep suffi- cient, whether it reached its destination or not. But, Held (Armour, J., dissenting), that upon the facts in evidence there should be a new trial. Per Armour, J. — The court were justified in in- ferringthat the imitation of defendant's signature in the address was as good as the imitation of it in the protest, and that if it came to the Belle- ville post office so addressed it would have been delivered to him ; and the plaintiff was entitled to the verdict. Per Cameron, J. — The illegi- bility of the address made the notice insufficient. BailUe V. Dickson, 46 Q. B. 167. See next case. Where the holder of a note employs a notary to protest the same at maturity, it is his duty to give the notary all the information that he is possessed of as to the names and residences of the indorsers. Therefore, where the signature of an endorser was so peculiar that no one unac- quainted with it could decypher it, although the holder of the note was well acquainted with the signature, and aware of the party's residence, both of which he omitted to communicate to the notary, who when protesting the note made, or as near as might be, a fae simile of the signature, and soaddressed the notice of dishonour to ' 'Belle- ville, P. 0.," but the endorser swore that the notice never reached him, though resident in BeUeviUe : — Held, (affirming the finding of Cameron, J.,) that the endorser was discharged S.gO., 7 A. R. 759. The endorser, a married woman, died intestate during the currency of a note which she had en- dorsed as surety for her husband, and notice of protest was sent to " James Bell, executor of the last will and testament of M. A. Bell, Perth," and received by the husband, who resided with his children in the house which his deceased wife had occupied. No letters of administration had been granted: — Held, that the notice was sufficient. Merchants' Bank v. Bell, 29 Chy. 413. See Steinhoff v. The Merchants' Bank, 46 Q. B, 25, p. 68. VI. ACCBPTOK AND MAKER. Personal liability of president of a railway company on an acceptance of a bill of exchange. See Madden v. Cox, 5 A. E,. 473. Power of husband to sign notes. Evidence of authority from wife. See Cooper el al. v. Black- lock, 5 A. E. 535. Per Burton, J. A., where an action is brought against the two makers of a, joint and several note if it fail against (jne it must fail as to both. Horner v. Kerr et al., 6 A. R. 30. VII. Drawer and Endorser. Held that a third person holding a note for the benefit of one joint endorser, cannot main- tain a joint action against the co-endorsers under B. S. O. c. 116, ss. 2, 3, as endorsers for the full amount of the note, but must sue each separately in a special action for his share of the contribu- tion : — Held, also, that the Act does not refer tO' partnership transactions. Small v. Riddeletal., 31 0. P. 373. Quaere, whether the endorsement as made by the manager, was sufficient, lb. See Canadian Bank of Commerce v. Oreen et al., 45 Q. B., 81, p. 76 ; Cross v. Currie et al., 5 A. E. 31, p. 81 ; Jenks et al. v. Doran, 5 A. E, 558, p. 58 ; Small v. Riddel, et al, 31 C. P. 373, p. 82. VIII. Actions on. 1. At what Time. The biU of exchange in this action fell due on 1st December, 1875, and the writ issued on 1st December, 1881 :- Held (Cameron, J., dissent- ing), that the statute began to run on the 2n December, 1875, and therefore this action was commenced in time. Sinclair v. Eobson, 16 Q. B. 211, remarked upon. Edgar v. Maqee, 1 0. E., Q. B. D. 287. Per Armour, J. — Though the holder of a bill may put himself in a position to com- mence his action on the day the bill falls due by demanding, and being refused payment, he is not bound to do so ; and if he does not, the acceptor has the whole of the day of maturity on which to pay the bill, and the statute does not commence to run until the day after. Qusere, whether, even in case of such demand and refu- sal, the statute will begin to run on that day. lb. Per Cameron, J. — Inasmuch as by C. S.U. C. o. 42 s. 15, the bill might have been protested at any time after three o'clock, on the day it fell due it was then overdue, and the action was commenced too late. lb. Held, that the plaintiff, under the facts stated in the report of this case, had established his right to sue upon the biU. lb. 2. Pleas. The C. L. P. Act, E. S. 0. c. 50, s. 120, em- powers the court or a judge to strike out pleas not merely where they are embarrassing, because confused in terms and so difficult to understand, but where they combine several defences in one plea, or are repetitions of a defence, already pleaded, and may thus be embarrassing or pre- judice a fair trial. In this case, being an actinO on promissory notes, the defendant having pleaded total failure of consideration, added other pleas repeating that defence, and setting up besides another agreement, not necessarily connected with the notes, and so stated as to leave it uncertain whether it was intended as a separate defence or as supporting the other de- fence : — Held, affirming the judgment of Came- ron, J., that such pleas were properly struck out. Abell V. McLaren, 31 C. P. 517. Declaration on a guaranty, by which, in con- sideration of the plaintiffs accepting three notes of G. for 1751 each, in satisfaction of their claim against G. & Co., defendant did, " to the extent 79 BILLS OF EXCHANGE AND PROMISSORY NOTES. 80 of $751, gtiaratitee the payment of the first two ■of the said notes according to their tenor and ■eflfeot." Pleas 1. That the notes were payable -to plaintiflfs' order, and the plaintiffs endorsed the first note to certain persons who held it at maturity, and to whom in the event of G. not paying it, the plaintiffs were liable as endorsers : •that G. notified defendant of his inability to pay it in full, and defendant paid thereon f276, of which plaintiffs had notice, and afterwards G. failed to pay the second note, whereupon defen- dant paid the plaintiffs |476, being the balance of the sum of $751 guaranteed by defendant. 2. That the first two notes, to the amount of •$1,276, were paid to plaintiffs as they became due, whereby defendant's guarantee was satis- fied : — Held, on demurrer, pleas bad ; for, as to the first, defendant was not liable to the plain- tiffs endorsees, and no express or implied request by the plaintiffs to pay was shewn ; and as to the second, the guaranty was not satisfied by the payment by G. of |751. Crathem et al. v. BelU 45 Q. B. 473. A promissory note madejby the defendant had iDeen held by the Consolidated Bank, and after its maturity, the defendant transferred certain timber Hmits to the bank as collateral security for the payment of the note, which limits the bank sold. The plaintiffs became holders of the note for value after dishonour, and after the tim- ber limits transaction, and brought this action Tipon the note. A counter-claim against the plaintiffs and the bank by the defendant, setting Tip that the bank has sold the timber limits without authority and for an insufficient price, and were thereby guilty of a breach of trust, and ■claiming that the defendant should be permitted to set off so much of his claim therefor against the bank as would satisfy the balance claimed upon the note, was held bad, and struck out, as not being properly a counter claim. Per Came- ron, J., unless required by the clear legal rights of the defendant for his protection against the plaintiffs action, counter claims are not to be favoured. Canadian Securities Co. v. Prentice, S P. R. 324. — Dalton, if aster— Cameron, See Merchants Bank v. Robinson, 8 P. E. 117, p. 80. IX. Defences to Actions. 1. Plaintiff not tlie Holder. The possession of bills of exchange by the en- ■dorser after he has specially endorsed them, is prim^ facie evidence that he is the owner of -them, and that they have been returned to him, and taken up in due course of time upon their ■dishonour, although there be no re-endorsement ; so that by the possession he is remitted to his original rights. In July, 1877, W. drew a bill of exchange on the defendants, payable to his own order, and the latter accepted it. The bill was first specially endorsed to the Bank of O. , which specially endorsed it for collection, to the Bank of C. It was dishonoured and pro- tested, and came again into the hands of the Bank of 0., which returned it to W. on or "before December, 1877. Afterwards, but how •did not appear, it got back into the hands of the Bank of 0. In 1881 the plaintiff, who was W.'s agent, got it from the bank of 0., along with other papers of W., and W., inNovember, 1881, endorsed it to the order of the plaintiff, who now sued the acceptors. When produced the bill appeared with all the special endorsements struck out, leaving only the signature of W., to the first special endorsement, and with the last en- dorsement to the order of the plaintiff. There was no re-endorsement from the Bank of 0. to W. or to the plaintiEf :— Held (reversing the de- cision of Ferguson, J., who had nonsuited the plaintiff), that in the absence of other evidence it was to be inferred that W. , had satisfied any claim of the Bank of O., and had thereby pro- cured or had the right to make the canceliation of previous special endorsements. Callow v. Lawrence, 3 M. & S. 95, cited and followed. Blade V. Strickland et al. , 3 0. R., Chy. D. 217. 2. Consideration as a groamd of Defence. (a) Accommodation or want of Consideration. Declaration upon a promissory note. Third plea — " That the defendant made the said note with and for the accommodation of one W. C, at the request of the plaintiffs, in respect of a pre- existing debt, then due to the plaintiffs by the said W. C. alone, and the said note was drawn payable on demand, with interest at 10 per cent., and except as aforesaid there was never any value or consideration for the making or payment of the said note by the defendant." Fourth plea— On equitable grounds. That the defendant made ' the note jointly and severally with W. C. for his accommodation, and as his surety only, to secure a debt due to the plaintiffs, and that after the note became due the plaintiff gave W. C. an ex- tension of time for the payment of the note : — Held, that the third plea was good, for it shewed that no extension of time had been given, and therefore that there was no consideration ; and that the fourth was not an equitable plea and must be amended by striking out the words : ' ' Upon equitable grounds, " and the jury notice served with it allowed to stand. Merchants Bank V. Eobinson, 8 P. R. 117.— Dalton, Q. C. The defendants made a note for $200, to one M. to assist M. in retiring paper in which de- fendants were interested. M. discounted his own note for $200 with the plaintiffs, depositing with them the defendants' note as collateral When M. 's note fell due, the defendants' note being then overdue, he paid $25 and gave a re- newal for $175, leaving defendants' note with the plaintiffs. Per Wilson; C. J. — Defendants' note was not an accommodation note ; but assuming it to be so : — Held, that the proper inference from the evidence was that it was transferred to the plaintiffs as security for the debt repre- sented by M. 's note, not for that note specially; and that the defendants remained liable. Thi Canadian Bank of Commerce v. Woodward et al, 8 A. E. 347. A married woman signed a note in blank, and tave it to hor son " to be used as he liked." He lied it up for $1,200, signed it, and transferred it to the plaintiff, who was not made aware of the circumstances under which it had been signed. It was renewed twice without the mar- ried woman's name, the original note remaining in the plaintiff's hands : — Held, (reversing the judgment of the court below), that the married woman was a surety in respect of the note for 81 BILLS OF LADING AND WAEEHOUSE RECEIPTS. 82 her son ; and that the authority to the son as to using the note did not extend to keeping it afloat after maturity Tvithout her knowledge ; and that she had been discharged by the extension of the time of payment. Devannev v. BrownUe et al., 8 A. R. 355. (b) Pravd and Illegal Consideration. The defendant was arrested on the charge of embezzling fines which he had received as a Justice of the Peace on the information of the reeve of the township claiming the fines, who took the proceedings with a, view to force the defendant into a settlement. He was brought before a justice and committed for trial, and while under arrest pressure was brought to bear on him to compromise by giving security to procure his release, and the plaintiff, who proposed to act on his behalf, gave a note to the township for the amount claimed and in- duced the defendant to give him a note for the a,mount, endorsed by his wife. The note in- cluded the amount of the fines, and also ex- penses incurred by the township in an investi- gation of the defendant's alleged default, to which the latter was not a party. The de- fendant was then brought before the deputy county judge, but no evidence was offered, and it was stated that the affair had been settled, and that the charge would not be proceeded with, whereupon the defendant was discharged. The plaintiff now sought to recover upon the defen- dant's note : — Held, that the consideration there- for being the stifling of a prosecution for felony was illegal, and rendered the note void, and that the plaintiff was in no better position than the township would have been had they taken the note. Bell v. Biddell et ux., 2 0. R., Q. B. D. 25. B. endorsed a promissory note made by 0. for the purpose of retiring another similar note which he had previously endorsed for C.'s ac- ■commodation, and gave it to C. Instead of retiring this note, however, O. handed it to the plaintiff in payment of a debt, who took it in ^ood faith, but made no inquiry respecting C. 's title to the note or his authority so to deal with it : — Held, affirming the judgment of the Queen's Bench, 43 Q. B. 599, that the plaintiff was entitled to recover against B. Cross v. Currie ■etal, 5 A. R. 31. J., an infant, gave to M. a promissory note for the purchase money of a buggy, endorsed by his father, who was of unsound mind, and unable to understand what he was doing. The father re- ceived no consideration, and M. was not aware •of his condition : — Held, on appeal from the master at Woodstock, affirming his decision, that the father's estate was not liable. i?e James, S P. R. 88.— Boyd. (c) Partial failure of Consideration. The defendant agreed with the plaintiff that whatever goods P. should order of the plaintiff le would become surety for. P. sent a written order to the plaintiff, who in addition to the goods ordered, sent others, and the whole con- signment was invoiced at prices higher than ihose quoted by the plaintiff and than those 6 at which P. had ordered some of the Without disclosing these facts to the defendant, but in perfect good faith, the plaintiff presented a bill of exchange upon P. for signature by the defendant, who signed the same supposing that it was for the price of the goods ordered. P. accepted the bill and kept the goods. But the Court of Appeal reversing the judgment of the Queen's Bench, 45 Q. B. 386 :— Held, that the defendant was liable to the extent of the goods ordered, and that the consideration for the bill failed as to the excess only. Barber v. Morton, TAR. 114. 3. Payment. A promissory note for |6,200, made by the president and secretary of a syndicate formed tor completing the Hamilton and Dundas street railway, in favour of 0., S., and the defendants, was endorsed by them to the Bank of Commerce or order. On the day the note fell due 0. and S. respectively paid the same, 0. paying |2,000 and S. $4,200, the remaining sum due thereon, S. at the time directing the bank agent to endorse it to the plaintiff, who it appeared gave no value for it. The agent endorsed it as follows : ' ' Pay to J. S., " the plaintiff "or order. D. Hughes Charles, manager. " The plaintiff thereupon sued the defendants as endorsers : — Held, that the plaintiff could not recover, for the evidence shewed that S. , by his payment intended to satisfy the note, which being made for a purpose directly relating to and not collateral to the partnership of which S. and defendants were partners, S. could not recover against defendants thereon, and as the plaintiff was found to have only the same right as S., neither could he re- cover. Small V. Piddel et al, 31 C. P. 373. The defendants discounted at a bank a promis- sory note which A. had given them, a,nd on maturity it was paid to the bank out of A.'s moneys within thirty days of his insolvency. In an action by the assignee to recover the amount from the defendants as being a payment within s. 134 of the Insolvent Act of 1875 :— Held, reversing the decision of the County Court, that they were not liable, as the payment wis not made to them, but to the bank, who were the actual creditors. Miller v. Harvey, 6 A. R. 203. 4 Other Defences. See Wilson v. Brown et al., 6 A. R. 87, p. 76 ; Canadian Securities Co. v. Prentice, 9 P. R. 324 p. 79. See, also, IV p. 74. BILLS OP LADING AND WAREHOUSE RECEIPTS. By the Act. 34 Vict. c. 5, D., it is not neces- sary to the validity of the claim of a bank under a warehouse receipt, that the receipt should reach the hands of the bank by endorsement ; the bank itself may make the deposit, and re- ceive from the warehouseman the receipt. Smith V. The Merchants' Bank, 28 Chy. 629. 83 BILLS OF SALE AND CHATTEL MORTGAGES. 8i A bank had discounted for a trading firm, on the understanding that a quantity of coal pur- chased in the United States by the firm should be consigned to the bank, and that the bank would transfer to the firm the bills of lading, and should receive from one of the members of the partnership his receipt as h, wharfinger and warehouseman for the coal as having been de- posited by the bank, which was accordingly done. The partnership having become insolvent, the assignee sought to hold the coal as the goods of the insolvents and filed a bill impeaching the validity of the receipt. It appeared that the insolvents had mixed the coal with other coal, and had sold some of it, and that all the coal in the premises was not sufficient to answer the quantity comprised in the receipt. Under these circumstances it was — Held, that the bank had a right as against the assignee — as it would have had against the insolvents — to hold all the coal in store of the description named in the receipt, and also to payment for any such coal as might have been sold by the plaintiff'. lb. The provisions of_the 34 Vict. c. 5, Dom., as to warehouse receipts do not invade the functions of the Provincial Legislature by an interference with "property and civil rights" in the pro- vince, lb. [The decision in this ease was reversed by 8 A. R. 15, but the decision of the Court of Appeal has since been reversed by the Supreme Court ; see 20 0. L. J. 66]. The N. & N. W. EaUway Co. and the G. W. Railway Co., shipped on the plaintiff's vessel a quantity of wheat from Hamilton to Kingston, consigned to the Mnlsons Bank in care of the de- fendants. The bills of lading contained the fol- lowing provision : " All deficiency in cargo to be paid for by the carrier, and deducted from the freight, and any excess in the cargo to be paid for to the carrier by the consignee." The quan- tity described in the bUls of lading was 15, 338 10-60ths bushels, while the actual quantity shipped was 15,838 10-60ths bushels and the dis- crepancy Mas shewn to have occurred by the omission by mistake to include a draft of 500 bushels, in making up the statement of the quan- tity shipped. The plaintiff, the carrier, claimed that he was entitled, for his own use, to the 500 bushels so shipped in excess : — Held, that the provision in the bill of lading did not give it to him, and tjhat no custom or usage was proved, giving it such meaning. The defendants who had accounted for such excess to the shipper, were therefore held not liable to the plaintiff. Murton v. The Kingston and Montreal Forward- ing Co., 32 C. P. 366. The plaintiff, consignor, consigned butter to his co-plaintiffs, consignees, in England, and shipped it by the defendant companies under a contract with the defendant Despatch Co., on through bills of lading, making it deliverable to order or assigns, and endorsed by the plaintiff to his co-plaintiffs, his vendees, in England, at a through rate paid to the Despatch Co. , and ap- portioned among them and the other two defen- dant companies by agreement. The butter was carried by the defendants, the Great Western Railway Co., from London Ont. to New York, and there delivered in good condition on a barge belonging to the defendants, the Great Western Steamship Co. It remained on the barge through the negligence of the latter com- pany for some days during very hot weather, whereby it was damaged, and it was in that condition received by the consignees. By clause 8 of the bill of lading it was stipulated that ' ' the consignees, or party applying for th& goods, are to see that they get their right marks and numbers, and after the lighterman, or wharfinger, or party applying for the goods, has signed for the same, the ship is to be discharged from all responsibility for mis-delivery or non- delivery, and from all claims under this bill of lading." Osier, J., who tried the case, found in favour of the plaintiffs, and gave a general verdict against aU the defendants : — Held, per Hagarty, C. J., affirming the decision of Osier, J., that the condition of the bill of lading should, not- withstanding the general words at the conclu- sion, be restricted in its application to cases arising from mis-delivery or non-delivery, and did not relieve the defendants, the steamship Co. from liability for actual negligence, but that thft railway company were not liable. Per Cameron J. The condition in the bill of lading, by its concluding general terms, absolved the defend- ants from liability for the negligence complained of. Hately et al. v. Merchants' Despatch Oo. et' at, 4:0. E., Q. B. D. 723. BILLS OF SALE AND CHATTEL MORT- GAGES. I. Registeation and Change or Posses- sion. 1 Affidavit of Bona Fides, 84. 2 Registration, 86. 3 Change of Possession, 86. 4 Re-fil'mg, 88. II. Description or Goods, 88. III. Consideration and Bona Fides, 89. IV. Rights and Liabilities op Mortgagor: AND Mortgagee, and those claim- ing under them, 90. V. Who may Impeach, 93. VI. Fraitd and Fraudulent Preferences— See Fraudulent Conveyances. VII. Mortgage oe Ships — See Ships. I. Registration and Change of Possession. 1 Affidavit of Bona Fides. The affidavit of bona fides in a chattel mort- gage purported to be sworn before "T. B. F.," without any addition. The affidavit of ex- ecution was sworn before the same commissioner, his name being followed by the words, "A Commissioner in B. R. &c." — Held, no objection to the affidavit of bona fides. Hamilton v. Har- rison, 46 Q. B. 127. The affidavit annexed [to a chattel mortgage omitted the words, "or accruing due," after those " so justly due : " — Held, that the debt might be stated as due when it really was due, and that it need not be necessarily stated as either due or acci-uing. Farlinger v. McDonald, 45 Q. B. 233. 85 BILLS OF SALE AND CHATTEL MORTGAGES. 86- The affidavit stated that the mortgage was not granted for the purpose o£ protecting the goods and chattels against the creditors of the two mortgagors, naming them, or preventing the creditors of the said mortgagor from obtaining payment for any claim against him, the said mortgagor : — Held, sufficient, for that the word mortgagor would mean each of the mortgagors previously mentioned. Jb. The omission of the word " him," at the con- clusion of the affidavit of bona fides registered with a chattel mortgage, has the effect of de- stroying the security as against an execution creditor who has seized while the goods remain- ed in statu quo, but does not impair the instru- ment as between the parties. Davis v. Wickson et al, 1 O. R., Chy. D. 369. B., the customer of a bank, executed a chattel mortgage on his household effects, by way of collateral security, in favour of the bank, which was allowed to run into default, whereupon the mortgagees proceeded to a sale, and appointed W., their baUiflf, for that purpose, who had the property appraised and sold it to the plaintiff, a creditor of B., by private sale for $900 ; and ex- ecuted a bill of sale thereof. The plaintiff, in his evidence, swore that B. owed him about $1,000, and he thought there was ample security for the ^900 and also additional security for B. 's indebtedness to himself, and that the goods seemed to be worth about |5,000 ; and the plain- tiff, without disturbing in any way the possession of B. , rented the property to him, and he remain- ed, as he had theretofore been, in possession. In order effectually to carry out the proposed ar- rangement with B. , the bank by special power appointed their local manager agent to accept the chattel mortgage and as such agent to make the affidavits required to be made by mortgagees : — Held (1) (reversing the judgment below) that it need not appear on the affidavit, or the mort- gage, or the papers filed therewith, that the agent was aware of the circumstances connected with such mortgage. Carlisle v. Tail, 7 A. R. 10 ; 32 C. P. 43. In November, 1881, a chattel mortgage was made to secure the plaintiff as endorser of a promissory note of the mortgagor, dated 4th October, 1881, at two months. A recital in the instrument stated that it had been given ' ' as security to the mortgagee against his endorse- ment of said note, or any renewal thereof that shall not extend the liability of the mortgagee beyond one year from the date thereof ; and against any loss that may be sustained by him by reason of such endorsement of said note, or any renewal thereof." The affidavit stated it was made "for the express piirpose of securing the mortgagee against the payment of such his liability for the said mortgagor by reason of the promissory note therein recited or any future note or notes which he may endorse for the ac- commodation of the mortgagor, whether as re- newals of the said note or otherwise :" — Held, (reversing the judgment of the court below,) that as the mortgage itself was good, and the affidavit covered 3l that is required by the Act, that part of the affidavit from "or any future note" to the end was unnecessary, and could not vitiate the security. Eeough v. Price, 27 C. P. 309, remarked upon. DriscoU v. Cfreen et al, 8 A. B. 366. It is sufficient if one of several mortgagees makes the affidavit required by R. S. 0., c. 119, s. 2 ; Tidey v. Oraib, 4 0. R., Chy. D. 696. 2 Registration. Where the goods forming the subject of a chattel mortgage are in bond, it is not neces- sary that the mortgage should be registered. May V. The Security Loan and Savings Go. , 4& Q. B. 106. A chattel mortgage was duly executed on the 12th of July, and filed on the 18th, the 17th having been Sunday : — Held, affirming the judg- ment of the County Court, that such registration was too late, the Act R. S. 0. c. 119, requiring the same to be effected within five days from the execution of the instrument ; that Sunday counted as one of such five days, and that Rule 457, 0. J. Act did not apply. McLean v. Pin- kerton, 7 A. R. 490. The mortgage, besides being a security for 11,400 actually advanced, provided that it should also be a security for further advances, if neces- sary, of goods and merchandize to enable the mortgagor "to carry on business," — not "to enter into and carry on " as in the statute, — which should "be re-paid on demand at any time within one year from the date hereof, or such other time as the parties may agree there- to " : — Held, that the omission of the words "to enter into " could not render it unnecessary to register the mortgage, as regarded the 1 1,400. Qusere, per Wilson, 0. J., whether the clause for future advances was not void as enabling pay- ment to be delayed beyond the year. lb. M. agreed to manufacture and furnish to the joint account of himself and the plaintiff a quan- tity of staves to be loaded in cars at a railway station by a day named. By the terms of the agreement the staves were to be considered at all times, whether marked or not, the property of the plaintiff as security for advances : — Held, that under this agreement the staves became the property of the plaintiff as soon as made, and never were the property of M., and that the agreement did not require filing under the Chat- tel Mortgage Act, and the plaintiff therefore was- entitled as against an execution creditor of M.. V. Rogers et al., 32 C. P. 624. See also, next sub -head. 3 Change of Possession. It was alleged that the plaintiff, who was- living with his mother, gave the horses in ques- tion to her for his board, but no price was fixed for them, and they were kept at the house and used by the plaintiff as before : — Held, that there was no sufficient change of possession to dispense with a registered bill of sale, and the sale was void as against the assignee in insol- vency of the plaintiff. Snarr v. Smith, 45 Q. B. 156. The mortgage covered growing crops : — Held- ( Armour, J., dissenting), that such crops being; incapable of delivery or change of possession without change of occupation of the land, the mortgage as to them was not within the Chattel Mortgage Act. Hamilton v. Harrison, 46 Q. B. 127. .^7 BILLS OF SALE AND CHATTEL MOETGAGES. B., a dry-goods dealer in Ottawa, consigned Tiis stock-in-trade to S. S. & Co., auctioneers in Toronto, for sale, the proceeds to be applied (1st) in payment of $800 advanced to B. by S. S. & Co., ;and (2nd) in payment of $250 advanced by McM. & Co. After the goods had reached the ware- bouse of S. S. & Co., B. gave other orders on the proceeds, which they accepted conditionally. After the sale had been advertised, but before -the time appointed for selling, the sheriff levied on the goods under an execution sued out by the defendants who, on ascertaining the nature -and amount of S. S. & Co. 's claim, paid the same to them, and the sale by arrangement was -allowed to proceed, the amount realized there- from being paid into the hands of the sheriff, who should hold the same untU the rights of all parties were ascertained. The sheriff thereupon caused the several claimants to interplead ; — Held, affirming the judgment of the Court below, 31 C. P. 320 Armour, J., dissenting, that the several orders on S. S. & Co. operated as equi- -table assignments of the goods or their proceeds; that the consignment to S. S. & Co., was as com- plete and continuous a change of possession as under the circumstances it was possible to effect, and therefore no necessity existed under the -Chattel Mortgage Act for registering the orders, if that could be done ; and that the defendants iaving by their payment to S. 8. & Co. been subrogated to their rights, were entitled in priority to aU the other claimants to rank upon the proceeds for the sum so advanced. McMaster et al. v. Oarland et al., 8 A. E,. 1. Where possession is changed it need not be ^ given personally to the creditor, purchaser, or mortgagee ; it may equally be given to a trustee or bailee for him ; and the debtor may increase -the claim of such bailee, or may charge the ■goods with further sums in favour of other per- sons. 8. C, 31 C. P. 320. M. carried on a retail business in a village store, on premises known as the " Star House," irom a design over the door, but there was noth- ing to indicate who was the proprietor. He sold the stock in trade to the plaintiff in August, and "formally handed over to him the keys, at the same time telling M., his clerk, that he would not require him any longer. The plaintiff gave • one key to M. , telling him to open the store next -morning, which he did, but the plaintiff next day -quarrelled with M. and dismissed him, and he then employed M. untilthe 1st of October to act as salesman, &c., the plaintiff being at the store a good part of the time. The change of business was advertised, and became well known in the neighbourhood, and new books were opened by the plaintiff. The stock was seized on the 2nd October under execution against M. The trans- action was found to have been In good faith and for valuable consideration : — Held, that the ques- tion of change of possession was one of fact to be S. C. K. 417, p. 134. (b) Other Cases. The 12 Vict. o. 157, s. 27, provided that five- per cent, should be paid on each share at the time of subscription, and the remainder in such instalments as the directors should appoint, pro- vided that no instalment should exceed ten per cent, upon such stock, or be called for or become 137 CORPORATIONS. 138 ■payable in less than thirty days after public notice should have been given " in one or more of the several newspapers published in every ■district where stock may be held, to that effect. " — Held, thE|,t under this Act more than one call S'. a, pp. 161, 162. 2. Practice in Moving for. (a) Time for applying. A motion for security for costs may be made at any time before issue is joined. Caswell v. Murray, 9 P. E. 192.— Dalton, Master, Boyd. See The Bank of Nova Scotia v. La RocJie, et at, 9 P. E. 503, p. 154. (b) Affidavit. An order for security for costs cannot be ob- tained under see. 71 of the Common Law Proce- dure Act, E. S. 0. , c. 50, upon an affidavit made by defendant's attorney. That section requires the affidavit to be made by the defendant per- sonally. An application made upon the affida- vit of the solicitor of defendants, a corporation, was therefore refused. Martin qui tarn v. The Consolidated Bank, 45 Q. B. 163. 3. Putting in Security. It is not essential that a bond for security for costs should be by more than one obligor, if oth- erwise sufficient. Fletcher v. NohU, 9 P.E. 534. — Cameron. 4. Waiver of Right to. The defendant was aware of the insolvency of the plaintiff before the action was commenced, but did not apply for security for costs until af- ter issue was joined, alleging that he was not before aware that the plaintiff had not obtained his discharge :— Held, that the defendant had waived his right to security. Robertson v. Mc- Master, 8 P. E. 14. — Dalton, Master. A petition by the defendant to reduce the amount of alimony allowed in the suit, came on to be heard on the 5th of October, when counsel for the plaintiff appeared and procured an en- largement for two Weeks to answer the defend- ants affidavits, and on the same day demanded and received copies of them. On the 19th Octo- ber, the counsel appeared and obtained a further enlargement for two weeks, but before the time expired applied for an order for security for costs, on the grounds stated in the report : — Held, without expressing an opinion on the merits, that the plaintiff had waived her right, if any, to such security. Knowlton v. Knowlton, 8 P. E. 400. — Stephens, Referee, Proudfoot. The defendant demanded copies of affidavits to be used on an injunction motion, and subse- quently obtained an enlargement of the motion ;- Held, not a waiver of his right to security for costs, because the facts on which to base such motion for security were unknown to him at the time of the demand and enlargement. Hathaway V. Doig, 9 P. R. 91.— Ferguson. 5. Payment out of Court pending Appeal. Plaintiffs, who resided in England, obtained a verdict for the price of goods in defendants! possession. The defendants appealed to the Court of Appeal. Plaintiffs applied for pay- ment out of S300 paid in by them as security for costs on commencing the action : — Held, that as the plaintiffs were shewn to have goods in the country, and in the defendants' possession, the 1300 should be paid out. But for this the plain- tiffs would not have been entitled to the money, the appeal being a step in the original cause, not a new action. JSapier et al. v. Hughes et oL, 9 P. R. 164.— Wilson. Money paid into court in lieu of giving the usual bond for security for costs will not be paid out to the parly paying it in, in whose favour a decree has been made, pending an appeal to the Court of Appeal. National Ins. Go. v. Eqleeon, 9 P. E. 202.— Boyd. III. Costs of the Day. The practice of giving costs of the day is super- seded by the 0. J. Act. No officer of the Court- has now power to issue a rule for such costs. Where the plaintiff fails to enter the cause, de- fendant should apply to a judge under rule 264. The Master in Chambers has no jurisdiction to entertain an application for costs under that rule. Hopkins v. Smith, 9 P. E. 285.— Dalton, Masta: IV. Application for Full Costs. The plaintiff saed the defendant on a foreign judgment for $240, and specially endorsed tms amount upon the writ of summons. He obtained judgment in default of appearance : — Held, that the foreign judgment was not a liquidated or ascertained amount within the meaning of B. S. , 0. u. 50, s. 153, and that the plaintiff was fe- titled to Superior Court costs. Davidson V. Cameron, 8 P. R. 61.— Dalton, Q. 0. Where a cause was properly within the eqnity jurisdiction of a County Court but the detendante resided in a different county from that ill which the land in question was situated, the costs were ordered to be taxed on the higher scale. DoM- dee V. Credit Valley R. W. Co. 8 P. E. 416.- Taylor, Master, 167 COSTS. 158 The plaintiff was entitled to the lateral sup- port of the defendants' land, in which they made excavations for the purposes of a rink, whereby the plaintiffs' land was damaged. The damages were assessed at §40, but judgment was given for the restoration of the plaintifif's land ; — Held, that the plaintiff was entitled to full costs. Snarr v. IVie Granite Curling and Skating Co., 1 0. R., Chy. D. 102. The plaintiff and defendant entered into part- nership to furnish G. & W. with certain staves for the price of $2,000. The contract was not fulfilled, and the plaintiff subsequently brought an action and obtained a reference to take an account of the partnership deaUugs. The report found that the plaintiff had contributed to the partnership capital $87.39, and the defendant ^233.89, and that there was due from the defend- ant to the plaintiff |43.74. The taxing officer taxed the plaintiff's costs under the lower scale, on the ground that the case came within C. S. U. C. c. 15, o. 34, subs. 1. On appeal, Cam- eron, J., reversed the taxing officer's ruling. Blaney v. McGrath, 9 P. K. 417. In interpleader issues. See Masuret v. Lans' ddl, 8 P. R. 57 ; Phipps v. Beamer, 8 P. R. 181 ; Beaty v. Bryce, 9 P. R. 320 ; Arkell et al v. Geiger, 9 P. R. 523 ; Chriatie v. Conway et al., 9 P. R. 529. V. Where Pakty has Succeeded only in Pakt. The plaintiff by his bill did not submit to do what he was bound to do as the price of the re- lief asked ; and the defendant asked relief which the court could not grant. The Court, on pro- nouncing a decree, refused costs to either party. Clemow v. Booth, 27 Chy. 1 5. The court refused in this case to reform an instrument on parol evidence, although satisfied that the plaintiffs ought to have succeeded had the case Seen one depending on the weight due to such evidence, and had the biU only asked for that relief would have dismissed it with costs ; but as the bill contained a prayer for fore- closure, that relief was afforded the plaintiffs, .subject to the payment of such costs as tlie de- fendant, an assignee in insolvency, had incurred in resisting a rectification of the mortgage. Do- minion Loan See In re Flint and Jellett, 8 P. K, 361, p. 41. See also McCardle v. Moom et al., 2 0. R. 229 ; Merchants' Bank v. Sparhea, 28 (Jhy. 108; Simp- son V. Home, 28 Chy. 1 ; Purdy v. Park, 9 P. K. 424. VII. Allegations not Established. Where one of several persons beneficially in- terested under the will of a testator, without making proper inquiries into the conduct and dealings with the estate by the executors, insti- tuted proceedings against them, and groundlessly charged them with misconduct, causing thereby much unnecessary costs and trouble, the court being satisfied with the conduct of the executors, refused to take the further administration and winding up of the estate out of their hands ; and it being shewn that all the other persons interest- ed in the estate were satisfied with the conduct of the executors, ordered the plaintiff' to pay the costs of the suit. Rosebalck v. Parry, 27 Chy. 193. The plaintiff claimed to be a creditor of 0-, and as such filed a biU alleging that 0. was mortga- gee or otherwise entitled to some interest in the lands of M., and that O. was about to dispose of his interest therein in order to defeat the claim of the plaintiff, and prayed an account of what was due by O. , and to restrain M from paying O., and also an order for M. to pay plaintiff. At the hearing, the court (Spragge, 0. ,) made a de- cree referring it to the master to ascertain what was due by O. to the plaintiff, and if anything found due that 0. should be ordered to pay the amount due to the plaintiff', with costs ; but dis- missed the bill as against M., with costs. Men- zies V. Otjilvie, 27 Chy. 456. The plaintiff transferred a covenant for the payment of |4,000, executed by four peisons in his favour to the defendant by an absolute assign- ment, as security for §2,000 ; the defendant giv- ing to the plaintiijf a separate agreement, to " re- assign " on payment of the loan and interest. On a bill to obtain a reassignment alleging that such loan had been repaid, the court (Spragge, C, ) made a decree for redemption in favour of the plaintiff with costs ; the defendant having set up a claim to be entitled to hold the 'security as ab- solute purchaser, thereof. Livinystoii v. Wood, 27 Chy. 515. On a bill filed by W. against T. and his sister, charging them with conspiracy, and impeaching the deed on the ground of fraud and undue in- fluence, the court (Spragge, C.,) although satis- fied that no fraud or undue influence had been practised on the grantor, set aside the deed as the same had been executed without proper ad- vice, but refused the plaintiff costs in conse- quence of the unfounded charges of fraud con- tained in the bill : and as against the female defendant dismissed the bill, with costs ; the fact that the court was of opinion that if the fullest explanations had been given to the father of the nature and effect of his deed he would stiU have executed it, making no difference in that respect as to what was required on the part of a voluntary grantee, which T. in effect was. Lavin v. Lavin, 27 Chy. 567 ; 7 A. R. 197 : followed in Irwiu v. Young, 28 Chy. 571. When the defendant having denied the agree- ment to convey, which however was clearly estab- lished by his own evidence, Blake, V. C. , on dis- missing the bill refused to give the defendant his costs. Perr/uson v. Ferguson, 28 Chy. 380. The mortgagee at whose instance the sale had been effected having been made a defendant, to- the bill and charges made of his having combined with the agent to defraud the principal, all of which were negatived, the bill as against him, was dismissed with costs. Thompson v. Holman 28 Chy. 35. In a suit to set aside a conveyance on thegronnd of want of consideration, it was alleged that the grantor was bodily and mentally infirm, bat the evidence shewed that the only difference between the grantor and grantee was, that tbe former was an older'man than the other. The grantee, how- ever, had given about the full market value of the laud conveyed, and to secure part of the pur- chase money had executed a, mortgage thereon. In dismissing the bill, the court (Ferguson, J.,> directed the costs of the defendant to be deduct- ed from the amount due under the mortgage, if the costs were not paid within a month, it being alleged that the next friend of the plaintiff was- worthless. Travvi v. Bell, 29 Chy. 150. Fraud having been charged against a defend- ant who was a solicitor, and the charge being wholly unsupported : — Semble, that it would have been proper not merely to deprive the plain- tiff of her costs but to allow such defendant all his costs. Freed v. Orr, et al, 6 A. R. 690. Remarks as to the unnecessary introduction of personal charges and assertions of motives in resisting the applications in this case and costs- refused in dismissing it. In re Stanton and tint Board of Audit of the County of Elgin, 3 0. '&,., C. P. D. 86. See Piatt v. Blizzard, 29 Chy. 46. IX. Set-ojf of Costs. In an action in a County Court, tried by a judge without a jury, judgment was given for 136, no order being made as to costs : — Held, that no costs could be awarded, and a mandamns- was granted to the county court clerk to enter up- judgment for the plaintiff with costs, and with- out allowing defendant to set off against the judg- ment the difference between County and Division court costs. Re Great Western Advertising Co. V. Rainer, 9 P. R. 494. — Armour. The costs of a motion in term are interlocutory costs, and the party to whom they are awarded, is entitled to have them set off against the judg- ment of the opposite party obtained in the same cause. Young v. Hobson, 8 P. R. 253.— Osier. Held, also, that the costs of a motion made after judgment might be treated as interlo- cutory, for the purposes of a set-off under Ueg, Gen. 52. lb. X. Taxation of Costs. 1. Costs allowed. (a) Counsel Fee. Where evidence taken before the Master sit- ting for a Judge was entered in the decree as- having been taken in court, the same fees were 161 COSTS. 162 taxefl to counsel before the Master as before a Judge. Rae v. Trim, 8 P. K. 405,— Taylor, MuKtur. On an application for further security for costs a counsel fee of $10 was allowed. Bell v. Lan- don, 9 P. R. 100.— Boyd. Held, that the Master had properly allowed to defendant, in his accounts, a lee of $10 paid by him to counsel for advice as to his action in re- spect of two assignments of a policy of insurance. Hayes v. Hayes, 29 Chy. 90. The suppliant, an advocate of the Province of Quebec, and one of Her Majesty's counsel, was retained by the Government of Canada as one of the counsel for Great Britain before the Fishery Commission, which sat at Halifax pursuant to the Treaty of Washington. There was contradictory evidence as to the terms of the retainer, but the learned judge in the Exchequer Court found " that each of the counsel engaged was to receive a refresher equal to the retaining fee of $1,000, that they were to be at liberty to draw on a bank at Halifax for $1,000 a month during the sittings of the Commission, that the expenses of the sup- pliant and his family were to be paid, and that the final amount of fees was to remain unsettled until after the award." The amount awarded by the Commissioners was $5,500,000. The sup- pliant claimed $10,000 as his remuneration, in addition to $8,000 already received by him : — Held, per Fournier, Henry, and Taschereau, J J. , that the suppliant, under the agreement entered into with the Crown, was entitled to sue by pe- tition of right for a reasonable sum in addition to the amount paid him, and that $8,000 awarded him in the Exchequer Court was a reasonable sum. Per Fournier, Henry, Taschereau, and Gwynne, JJ. : By the law of the Province of Quebec, counsel and advocates can recover for fees stipulated for by an express agreement. Per Fournier and Henry, JJ. : By the law also of the Province of Ontario, counsel can recover for such fees. Per Strong, J. : The terms of the agreement, as established by the evidence, shewed (in addition to an express agreement to pay the suppliant's expenses) only an honorary and gra- tuitous undertaking on the part of the Crown to give additional remuneration for fees beyond the amount of fees paid, which undertaking is not only no foundation for an action but excludes any right of action as upon an implied contract to pay the reasonable value of the services ren- dered ; and the suppliant could therefore recover only his expenses in addition to the amount so paid. Per Ritchie, C.J. : As the agreement be- tween the suppliant and the Minister of Marine and Fisheries, on behalf of Her Majesty, was made at Ottawa, in Ontario, for services to be performed at Halifax, in Nova Scotia, it was not subject to the law of Quebec : that in neither Ontario nor Nova Scotia could a barrister main- tain an action for fees, and therefore that the pe- tition would not lie. Per Gwynne, J. : By the Petition of Right Act, s. 8, the subject is denied any remedy against the Crown in any case in which he would not have been entitled to such remedy in England, under similar circumstances. By the laws in force there prior to 23 and 24 Vict., c. 34, (Imp.), "counsel could not, at any time, in England, have enforced payment of counsel fees I by the Crown, and therefore the suppliant should , not recover. The QueetiY. Doutre, 6 8. 0. Ji.S4:2. i 11 (b) Costs in the Cause. In an appeal against an order refusing further security for costs, the appeal was dismissed, rnd the costs made costs in the cause to the plpinlifiF. Bell V. Landon, 9 P. R. 100.— Boyd. The plaintiffs obtained an order for the issue of a foreign commission to examine a witness. The order contained the usual direction that the costs be costs in the cause. The evidence was taken, but was not put in at the trial. Boyd, C, held, that the direction in the order as to costs did not preclude the taxing officer from disallowing the costs to the plaintiffs, on the ground that the evi- dence had not been used. Dominion &c. Co. r. Stinson, 9 P. R. 177. The venue in an action to restrain the infringe- ment of a patent was changed without terms to Brockville. As the defendant has been slow in applying, the costs of the application beloTv and in appeal were made costs in the cause. Aiic?ie- soH V. Mann, 9 P. R. 253.— Boyd. (o) Other Cases. The costs of serving an infant personally who is out of the jurisdiction will not be allowed. Rew V. Anthony, 9 P. R. 545. — Boyd. Expense incurred for surveys and other special work of that nature, made in order to qualify witnesses (surveyors) to give evidence are not taxable between party and party, the English Chancery Order 120 (1845) not being in lorce here. The taxing officer refused to allow charges for maps prepared to identify the details of the line mentioned in the judgment as that which the judge considered the true line, and also for a certificate of the state of the cause, for a letter advising of judgment, and for instructions on motion for judgment: — Held, that there being no error in principle, but only an exercise of dis- cretion by the taxing officer, the court would not interfere with his ruling. McGannon v. Clarke, 9 P. R. 555.— Boyd. A bill had been filed but not served, and was subsequently dismissed with costs by the plaintiff. It appeared that, though no answer had been drawn, the defendant's solicitor had received in- structions to defend, some two months before the dismissal of the bill : — Held, that defendant was entitled to tax instructions, and the costs of the taxation. Bissett v. Strachan, 8 P. R. 211. — Taylor, Master. Held, that a prosecutor of a complaint cannot appeal from the order of a magistrate dismissing the complaint : as by R. S. O. c. 74, s. 4, the practice of appealing in such a case is assimilated to that under Dom. Stat. 33 Vict. c. 47, which confines the right of appeal to the defendant. A prohibition was therefore ordered, but without costs, as the objection to the jurisdiction had not been taken in the court below. In re Murphy and Cornish, 8 P. R. 420.— Osier. Plaintiff sued C. and G., G. being a married woman, and obtained a verdi.jt against both. In term both defendants obtained a rule to enter a nonsuit for them, or a verdict for G. The latter part of the rule was made absolute. The taxing officer disallowed the plaintiff any costs in term, because he had not given notice that he aban- doned his verdict against G. , and taxed to her 363 COSTS. 164 one half of the costs of the term motion, both defendants having appeared by the sameattoniey: — Held, on appeal, that a proper proportion of the costs in term should be allowed to the plain- tiff, against defendant C, and the taxing officer was directed to enquire whether any binding con- tract of retainer had been entered into by G., and if not to allow her only disbursements. Olarh v. Crekjhtun et al, 9 P. R. 125.— Osier. On a taxation between party and party, in- structions for reply will not be allowed, as well as instructions for statement of claim. But ex- penses incurred in procuring a deed, and certain other documents, which caused a saving of ex- pense, were allowed. Torrance v. Torrance, 9 P. E, 271.-Proudfoot. See Agnew v. Plimkett, 9 P. E. 456, p. 46. 2. Costs of Taxation. Held, that the Local Masters, who are paid by fees instead of salary, are entitled to charge one dollar per hour in money under Chancery Tariff of 23rd March, 1875, when taxing costs. Jh-Gannon v. Clarke, 9 P. R 555. — Boyd. XI. Miscellaneous Cases. Costs not asked for in rule, though they were at the bar : — Held, no objection, as they are in the discretion of court under the Judicature Act. In re Feci; and the Corporation of the Town of Gait, 46 Q. B. 211. Where an indictment for obstructing a high- way had been removed by certiorari, at the in- stance of the private prosecutor, into this court, and the defendant hi,d been acquitted : — Held, that there was no power to impose payment of costs on such prosecutor. Reijina v. Hart, 45 Q. B. 1. The Court, however, has power to make pay- - ment of costs a condition of any • indulgence granted in such a case, such as the postponement of the trial or a new trial, lb. Eight to recover costs from opposite party where attorney is paid a fixed salary. See Ste- venson v. Corporation of Kingston, 31 C. P. 333 p. 43. See 46 Vict, u.' 18, s. 280, sub-s. 3. The question as to jurisdiction being impor- tant, and open to reasonable doubt, no costs were allowed. Re North YorJc Election. — Pater- ■soti V. Muloch, 32 0. P. 458. Costs refused on ground of delay. See Hyde v. Barton, 8 P. R. 205. Where affidavits used on a motion were badly written, scarcely legible and difficult to decipher, the Court refused the plaintifif all costs connected with their preparation, although the costs of the suit were given him. Burnham v. Garvev 27 Chy 80. ^ Where the petitioner had carefully abstained from a,scribing fraud or fraudulent conduct to the plaintiff, and the circumstances were such as to invite discussion, the court in dismissing the petition did so without costs. Richer v. Richer 27 Chy. 576. The wrong (if any) complained of being a per- sonal wrong on the part of the members of the council who voted for the resolution : — Qusere, if costs were adjudged to the plaintiff, whether they should not be paid by those members. Marsh v. Huron College, 27 Chy. 605. Where, on a dissolution of partnership between the plaintiff and defendant, it was agreed that the defendant should wind up the concern, and the plaintiff having demanded a statement of ac- count the defendant rendered an untrue and im- perfect one, whereupon the plaintiff brought this action for a winding up, claiming that the defen- dant was indebted to him on account of partner- ship assets received, which the defendant denied, and the plaintiff succeeded : — Held, that the de- fendant must pay the costs of the suit. Oar- michaelv. Sharp, 1 0. R., Chy. D. 381. The testator was seized of certain lands which were subject to incumbrances, and by his will directed the same to be sold if his sons in succes- sion should not redeem. One of the sons, E. to whom the first privilege of redeeming was given, a vailed himself thereof and redeemed the property, which was subject to certain charges imposed by the will in addition to the incumbrances : — Held that the right to redeem was in effect a right to purchase, as the mortgages and charges created by the will amounted to about as much as the land was worth, and that R. had acquired a good title free from any claim of his brothers; and his brothers having instituted proceedings against him claiming an interest in the estate, that he was entitled to recover his costs not out of the estate of the testator but from the plaintifi personally. Stevenson v. Stevenson, 28 Chy. 232. A person of the same name as the defendant served by mistake with the writ in the action, was held entitled to his costs of opposing a mo- tion for judgment under Rule 324, 0. J. Act. Lucas V. Fraser, 9 P. R. 319.— Dalton, Maikr. Boyd, C. overruled a demurrer without costs, as it was the first occasion the point decided under it had arisen since the Judicature Act. Rwmhr V. Marx, 29 Chy. 179. Two of the four convicting justices were li- censed auctioneers for the county, and persisted in sitting after objection taken on account of in- terest, though the case might have been disposed of by one justice : — Held, that they were dis- qualified, and in quashing the conviction on that ground the court ordered them to pay the costs. Regina v. Chapman, 1 O. R., Q. B. D. 582. Held, on further directions, that the costs hav- ing been incurred in a proceeding consented to under a common mistake of parties as to the proper tribunal to decide the question, each party should bear his own costs. Dalhi v. Bd, 29 Chy. 336. An order was made by the Master in Chambers changing the venue from the Assizes at Simcoe, for which notice had been given, to the Chancery sittings at London. The judge presiding at those sittings having refused to take the ease, as it be- longed to a Common Law Division: — Held, with- out determining whether the master's order was a proper one, that the plaintiff was juatifited in acting on it, and his costs occasioned by the abor- tive attempt at trial, were allowed to him. iScAicoS V. McGloughlin, 9 P. R. 475.— Cameron. Sureties sued on a bail-bond, obtained an order to stay proceedings on the render of their prin- 165 COUNTY COURTS. 166 -cipal, "upon payment of coats." — Held, that the words ' ' upon payment of costs " are words of agreement, not mere words of condition, and that execution for the costs was properly issued under the order. Stuart v. Branton et al, 9 P. R. 5o6. — Dalton, Master. M. being seized in fee of land mortgaged to the plaintiff, and then sold to T>. expressly subject to tte mortgage. D. sold to one Maybe in the same mamier, and Maybe sold to defendant, who had notice of the title, covenanting against in- cumbrances. The plaintiff proceeded against M. and the defendant and obtained judgment for -sale on nonpayment and costs, whereupon de- fendant paid the plaintiffs claims for debt, in- terest and costs, and took an assignment of the judgment and mortgage : — Held, that the defen- dant had no right under such judgment to levy from M. any portion of the costs so paid, for if he were allowed to do so, M. by the effect of the conveyances would have a remedy over for them against the laud defendant's property, and could then force defendant to pay them back. Kempt V. Macauley, 9 P. R. 582. — Dalton, Mas- ter. See Imperial Bank v. Dickey, 8 P. R. 246, p .34. COUNCIL. See Municipal Corporations. COUNSEL. See Barrister at Law. COUNTER CLAIM. See Pleading. COUNTY- ATTORNEY. Where the account of the county attorney of York for the quarter ending 31st September, 1879, for expenses connected with the adminis- tration of criminal justice, was audited by the county board of audit, and paid, but certain of the items were disallowed by the provincial treas- urer as not payable by the Crown out of the consolidated revenue fund, not being contained in the schedule, and the board of audit, there- fore, in auditing the county attorney's account for a subsequent quarter, deducted therefrom the amount of said disallowed items a mandamus was granted to the board to rescind their order for such deduction. In re Fenton, County Crown Attorney of the County of York, and the Board ofAudk of the Cirnnty of Tcorh, 31 C. P. 31. Under an Order in Council the County Attor- ney is entitled to $4 on receiving and examining aU informations, &c., connected with criminal charges for the Court of Assize, &c., upon the certificate of the Crown counsel that such fee should be allowed. One 0. on being brought be- fore the county judge on twenty-five charges of larceny, having elected to be tried by a jury, was tried at the ensuing assizes and convicted on three of them ; but the remaining twenty- two cases were not tried. The plaintiff, a county attorney, obtained the Crown counsel's certifi- cate for and charged a fee of |4 in each of the above twenty-five cases, which was passed by the board of audit, and paid by the county treasurer, but upon the twenty-two untried cases being disallowed by the Provincial Treas- urer and his decision communicated to the board of audit, they deducted the amount from a subse- quent account : — Held, that a mandamus would not lie to the board of audit to rescind their order, the ruling of the Provincial Treasurer be- ing a good reason for deducting the amount which was a matter for their discretion under the R. S. 0. c. 85. In re Stanton and the Board of Audit, of the County of Elgin, 3 0. R., C. P. D. 86. A fee of fifty cents is allowed to the county attorney for attendance in the County Judge's Criminal Courts, and making the necessary en- tries for each prisoner not consenting to be tried summarily. "The plaintiff charged fifty cents for actual attendances and making the necessary entries in each of the twenty-five charges pre- ferred against C, which were separately read over to him and his election taken thereon. The three cases on which the prisoner was actually tried were only allowed by the board of audit, on the ruling of the Provincial Treasurer : — Held, that for the same reasons, as above a mandamus would not lie to the board of audit to allow the fee in the other cases. lb. The plaintiff claimed $1 for an affidavit verify- ing the jurors' book, and $1 for a certificate drawn up by him for the county judge to sign, of the receipt of such books, &c. The tariff allows $1 "for each certificate required to be entered in the jurors' book to verify the same :" — ■ Held, that these fees could not be allowed, and that a mandamus would not he. lb. See Van Norman v. Grant, 27 Chy. 498, p. 35. COUNTY COURTS. I. Judge. 1. Appointment of, 167. 2. Proceedings Against, 167. 3. Of Division Courts — See Divisiosr Courts. 4. Mandamus to — See Mandamus. 5. Prohibition to — See Prohibition. 6. Appeal to from Court of Revision — See Assessment and Taxes. II. Jurisdiction. 1. Liquidated and Unliquidated Claims, 168. 2. Equitable Jurisdiction, 169. 3. Title to Land in Question, 169. 4. OtUr Cases, 169. 5. County Judges Criminal Court. — See Criminal Law. III. Practice, 170. 1G7 COUNTY COURTS. m IV. Appeal from. 1. WMn Appeal Lies, 171. 2. Reference back to Assess Damages, 172. 3. Costs, 172. V. Application for Full Cost.s. 1. Generally— See Cost.?. 2 In Interpleader — See Interpleader. I, Judge. 1. Appointment of. Held, that the oommisaion in this case appoint- ing a Deputy Judge during pleasure and the absence of the County Judge was validly issued under E. S. 0. c. 42, and that it was not essen- tial to enable the Deputy .Judge to act that the County Judge should be absent fi-om the county. Eegina v. Fee, 3 0. R., C. P. D. 107.' • 2. Proceedings Against. Certain charges having been preferred against a County Court Judge, a commission was issued under the Great Seal of Canada, reciting these facts and the provisions of 22 Geo. III. c. 75, (Imp.) and directing the commissioners to ex- amine into the charges, and for that purpose to summon witnesses, and require them to give evidence on oath and produce papers ; and to report thereupon. The enquiry proceeded, and a motion was made for a prohibition : — Held, that enquiries under the Imperial Act should be made before the Governor General in Council, and the authority could not be delegated, nor enquiry upon oath authorized by commission : — Held, also, that the commission could not be supported at common law, for it created a court for hearing and enquiring into offences without determining. Re Squier, 46 Q. B. 474. The C. S. C. ^. 13, and 31 Vict. c. 38 (D.) give power to issue commissions for enquiring into the administration of justice when the en- quiry is not regulated by any special law, and an enquiry into the conduct of any one con- nected with the administration of justice is with- in the meaning thereof. But : — Held, that this enquiry into the conduct of a County Court judge falls within the exception in the Act, be- ing regulated by 0. S. U. 0. 0. 14, ss. 1 and 4, which are a special law for such cases. lb. The 32 Vict. c. 22, ». 2 (0.) ; 32 Vict. c. 26 (0.); 33 «ict. c. 12, s. 1 (0.), and R. S. 0. c. 42, s. 2, assuming to repeal C. S. U. C. c. 14 and C. S. U. C. c. 15, s. 3, and to aboUsh the Court of Impeachment for the trial of County Court judges, and regulate their tenure of office are ultra vires of the Provincial Legislature. lb. The tenure of office of the County Court judges is still regulated by C. S. U. C. c. 25, s. 3. lb. The different modes of proceeding against County Court judges for misconduct pointed out. lb. II. Jurisdiction. 1. Liquidated and Unliquidated claims. The plaintiff sued the defendant on a forei^ judgment for $240, and specially endorsed this amount upon the writ of summons. He obtained judgment in default of appearance:— Held, that the foreign judgment was not a liquidated or ascertained amount within the meaning of E. S 0. i;. 50, s. 153. Davidson v. Cameron, 8 P. R. 61.— Dalton, Q. C. A County Court has jurisdiction to try a claim up to $400, which is made up of an unliquidated amount of less than |200, and the balance of a liquidated amount. Vogt v. Boyle, 8 P. R. 249.— Hagarty. The plaintiff sued in the County Court on the indebitatus count for |375, claiming by his parti- culars, balance due from Defendant to 1st Nov., 1877, 1120 ; wages from IstNov., 1877, to IstXov., 1878, 1360 ; less amount paid |160. Balance, $320. On objection being taken at the trial to- the jurisdiction of the County Court, the plain- tiff was allowed to amend by striking out all the items except the first : — Held, affirming the judg- ment of the County Court, that the particulais were no part of the record, which shewed an amount within the jurisdiction of the County Court ; but Held, also, that judgment for that sum would be a bar to any future action for work done at any time before the commencement of this suit. Davidson v. The Belleville and North Hastings Railway Company, 5 A. R. 315. Action for the price of thirty hogsheads of goods. It appeared that K. sold to S., the de- fendants' testator, a quantity of goods, which K., in his evidence, said was a definite quantity, which he could not recollect, but not less than thirty hogsheads and not more than forty, at the price of llO per hogshead: — Held, that the de- mand was liquidated by the act of the parties at the time of sale, and the action was therefore within the jurisdiction of the County Court. Per Patterson, J. A. — That it was not improper to leave to the jury the question whether the amonnt was ascertained by the act of the parties. Waison V. Severn et al., 6 A. R. 559. In an action in a County Court on a promissory note made by the defendant, in which the defend- ant claimed indemnity against the third party, the third party having appeared, the learned Judge of the County Court directed certain issues to be tried between the defendant and the thiid party. At the trial he found for the plaintiff, and investigated accoun ts between the defendant and the third party amounting to more than 110,- 000, upon which he found that a balance of more than $3,000 would be payable to the defendant, and he directed that the third party shouldji^n' of this balance, pay to the defendant the amount of the plaintiff's claim. On a motion for a prohi- bition: — Held, that the order directing the issues between the defendants and the third party, with the proceedings taken under it were right. Mi also, that as the only relief which could he given to the defendant against the third party, w* protection against the demand of the plaiiltiffp which was within the pecunijiry jurisdiction of the County Court, the learned judge was not act- ing beyond his jurisdiction in investigating »| counts of sums beyond his jurisdiction. iW* V. Oorhindale et al, 4 0. R., Q. B. D. 317. 169 COUNTY COURTS. 170 2. Equitable Jurisdiction. The County Court on its equity side liad power to grant an injunction in any case coming within its jurisdiction. The fact of the title to land com- ing in question did not oust the jurisdiction of the County Court on its equity side. Sae v. Trim, 8 P. R. 405.— Taylor, Master. See DouhUdee v. Credit Valley R. W. Co., 8 P. E. 416, p. 156. 3. Title to Land in Question. S., being indebted to the plaintiffs, entered into an agreement to mortgage to them, amongst other lands, certain lands known as the Do- minion Hotel property. A mortgage was on the same day executed, but by mistake the Dominion Hotel property was omitted therefrom, and a lot formerly owned by S. adjacent thereto inserted. The defendant had been the tenant of S., and after the mortgage, attorned and paid some rent to the plaintiffs, believing them to have a title to the lands. In an action for arrears of rent : — Held, affirming the judgment of the County Court of York, that after such attornment and payment of rent, the defendant could not be heard to deny the plaintiff's title, and they being the equitable owners of the land, were entitled to recover : — Held, also, that the title not being open to ques- tion by the defendant the County Court had jurisdiction. Bank of Montreal v. Gilchrist, 6 A. R. 659. See Hae v. Trim, 8 P. R. 405. 4. Other Cases. A County Court judge has power to give a fiat in Term time for the issue of a writ of quo war- ranto to try a contested Municipal Election : — Held, that Rule 1 M. T. 14 Vict, has become in- operative by the effect of subsequent statutory enactments to which it is repugnant. Rerjina ex rel., McDonald v. Anderson, 8 P. R. 241. — Osier. An issue had been directed from a County Court to one of the Superior Courts under R. S. 0. c. 49, s. 12, to try whether a conveyance of certain lands by a judgment debtor was fraudulent, and the County Court had defined the issue to be tried, and the time and place of trial. The plain- tiff, in pursuance of the direction, prepared and delivered the issue to defendant, the grantee in the conveyance, who did not return it ; and the plaintiff, after the time for trial had elapsed, ap- plied in the Superior Court for an order absolute for sale of the land : — Held, such order could be made only in the County Court, whence the issue had been directed, and that the Superior ■Court could only try the issue, and could make no final disposition of the matter : — Held also, that the application was not in any event well founded, as the plaintiff should have proceeded with the trial of the issue. Qufere, as to the granting of a new trial, or reviewing the verdict upon such an issue. Merchants' Bank v. Brooker, 8 P. R. 135.— Osier. A verdict was entered for the plaintiff on the trial of an issue directed by the Court of Chan- cery, to be tried at the sittings of the County Court of the county of Dufferin. The County Court judge set aside the verdict and entered a nonsuit, on grounds embracing matters of law as well as of fact and evidence : — Held, that he had no power to do so, and that the application should have been made to the Court that directed the issue. Barker v. Leeson, 9 P. R. 107. — Proud- foot. Held, that interpleader being a proceeding in the action, a County Court judge under Rule 422 0. J. Act has jurisdiction to entertain it, but in this case the judge having disposed of the matter summarily without the consent of the parties, an issue was directed. Coulson v. Spiers, 9. P. R. 491.— Osier. Power of County Court judge to set aside writ of quo warranto when issued on his fiat. See Regina ex rel. Grant v. Coleman, 8 P. R. 497 ; S. C.'ie Q. B. 175; 7 A. R. 619; Regina ex rel. 0' Dwijer V. Lewis ; Sub nom Regina ex rel. Zhvire V. Lewif, 8 P. R. 497 ; 32 C. P. 104 ; 7 A. R. 619. As to jurisdiction of High Court of Justice to interfere with County Court judges order for im- mediate possession of land taken under R. S. 0. , c. 165, s. 20, sub-s, 23. See Jenkins et al. v. The Central Ontario R. W. Co., 4 0. R. 593. III. Practice. Held, that in case of interpleader by a sheriff' between two claimants, one a plaintiff in a Supe- rior Court suit, the other a plaintiff in a County Court suit, the application for an interpleader order was properly made in the Superior Court, although the seizure was made under the County Court writ before the Superior Court writ came into the sheriff's hands. Strange v. Toronto Telegraph Co., 8 P. R. 1.— Dalton, Q. C. Held, that there is no appeal to the full Court in term from an order of the clerk of the Crown and pleas made on an application to change the venue in County Court oases under R. S. 0., c. 50 s. 155 ; but the only appeal in such cases is to a judge in Chambers under sec. 31 of the Act : — Held, however, that if an appeal did lie to the full Court it might be made direct thereto without first going before a judge in Chambers. Mahon et al. v. Nicholls, 31 C. P. 22. Semble, in such cases, the proper course is to follow, as laid down in the Act, the practice in force in the Superior Courts ; and that the mere fact of the cause of action having arisen in the county to which it is sought to change the venue is not of itself sufficient to outweigh any actual preponderance of convenience arising from other causes in favour of retaining the venue where the plaintiff had laid it. lb. Where a rule nisi in a County Court was or- dered by the judge to stand over until the next term : — Held, that it was not necessary to take out a rule to enlarge the rule nisi to prevent it from lapsing. In re Dean v. Chamberlin, 8 P. R. 303.— Osier. In an action in a County Court, tried by a judge without a jury, judgment was given for $36, no order being made as to costs : — Held, that no costs could be awarded, and a mandamus was granted to the County Court clerk to enter up judgment for the plaintiff with costs, and without allowing defendant to set off against the 171 COURT OF APPEAL. 172 judgment the difference between County and Division Court costs. Re Great Western Adver- tising Co. V. Eainer, 9 P. K. 494.— Armour. See Merchants' Banh v. Brooher, 8 P. R. 133, p. 169 ; Barher v. Leeson, 9 P. R. 107, p. 170. IV. Appeal fkom. 1. When appeal lies. Although the jurisdiction of the Court of Ap- peal is not limited to appeals from the County Court as it is in appeals from the Superior Courts, under s. 18, snb-s. 3, of the Appeal Act, it will not in ordinary cases interfere where a new trial has been refused by the County Court upon a matter of discretion only, Campbell v. Prince, 5 A. E. 330. In this case, however, being au action for assault against a public officer, in which the jury had found a verdict of $100, and a new trial, asked for on the ground that the verdict was against evidence, was refused, the Court of Ap- peal granted a new trial, as the evidence strongly preponderated in the defendant's favour and there was rea.son to believe the jury had been misled by the charge. As the judgment was varied in a matter of discretion no costs were given. lb. The verdict herein was set aside by the County Court, and a nonsuit entered upon a ground not taken as a defence at the trial orin the rule nisi :— Held, reversing the judgment that the learned judge erred in giving effect to the objection, which, if taken at the trial, would have been met with an amendment.- As the evidence shewed that the plaintiff was entitled to succeed upon the merits, the appeal was allowed, and the rule in the Court below discharged. Clarke et al v. Barron, 6 A. E. 309. Where the County Court judge granted a new trial owing to his dissatisfaction with the verdict, the court refused to interfere with his discretion, as it did not appear that he was clearly wrong. Hunter v. Vanstone, 6 A. E. 337. In an action of replevin the defendant, for a second plea, avowed for board due by plaintiff to him as a boarding-house keeper ; and for a third, avowed for a lien on the goods of plaintiff under E. S. 0., c. 147, s. 2. On the trial, before the judge of the County Court (York) without a jury, the evidence as to whether the defendant was the keeper of a boarding-house was contra- dictory, but the learned judge decided in favour of the plaintiff', holding that the defendant was not a boarding-house keeper. On appeal this finding of the County Court judge was affirmed, although, had the matter come before this court in the first instance, it would have decided other- wise, and under the circumstances, no costs of the appeal were given to the respondent. Bees V. McKeoion, 7 A. E. 521. The court, having no power on an appeal from the County Court to amend the record, allowed the appeal on payment of costs by the appellant, so far as to direct the issue of a rule nisi, upon the return of which in the court below, the necessary amendment could be made. Wilson V. Brown et al., 6 A. E. 411. This case had been remitted to the Court be- low, this court being of opinion that the record should be there amended and a verdict entered for the plaintiff against the defendant B. alone (6 A. R. 411). The learned judge of the County- Court, instead of entering such a verdict, direct- ed a new trial, the parties to apply to amend their pleadings as they might be advised, so that B. might raise any defence which he was not obhged to raise in the action on the joint Uabilitj :— Held, that the direction of the learned judge of the County Court as to the way in which he thought it most just to the defendant B. that the application to amend should be made, was^ an exercise of his discretion with which this- Court would not interfere. S. C.,^ A. R. 181. Appeal in garnishee proceedings. See Van Norman v. Grant, 27 Ohy. 498, p. 35 ; Sato et al. V. Hubbard, 6 A. E. 546, p. 35. AppeaJ from order of county judge setting- aside fiat and writ of summons in the nature of a quo warranto. See Regina ex rel. Grant v. Cole- man, 7 A. E. 619 See Mahon et al. v. Nicholla, 31 C. P. 22, p. 170. 2. Reference back to assess Damages. The Court of Appeal directed a verdict to be entered for the plaintiff against a tavern keeper for selling liquor to her husband after being for- bidden by the plaintiff, -his wife, to do so, but referred it back to the County Court judge to assess the damages, declining to follow the course adopted in Denny v. The Montreal Telegraph Co., 3 A. R. 628. Austin v. Davis, 7 A. E. 478.. 3. Costs. As the judgment was varied on a matter of discretion, no costs of appeal were given. Camp- bell V. Prince, 5 A. E. 330. Security for costs under joint stock companies winding up Act (41 Vict. c. 5) Out. See Sf Union Fire Ins. Co.. 7 A. E. 783, p. 175. See Rees v. McKeown, 7 A. E. 521, p. 171. COUET OF APPEAL. I. Appeal from Supbbioe. Courts. 1. When Appeal lies, 173. 2. Time for Appealing and Notice, 173- 3. Staying Proceedings, 174. 4. Enforcing Judgment, 174. 5. Bond and Allowance, 175. 6. Right to take grounds of appeal not taken below, 176. 7. Costs, 177. 8. Other Cases, 177. TI. Appeal eegm County Courts. —Se» County Courts. III. Error — See Criminal Law. IV. MiSOELLAKEOUS CASES EeLATING TO AP- PEAL. — See Appeal. 173 COURT OF APPEAL. 174 I. Appeal from Superioe Courts. 1. When Appeal lies. Rules 274 and 317, 0. J. Act. restrict the jurisdiction of the Divisional Court after judg- ment to cnses in which the findings of fact have been undisputed, and in which it is only sought to modify or set aside the conclusion drawn by the Judges therefrom ; but if the appeal is on the whole case, as to both facts and law, it must bs to the Court of Appeal. Trade v. Phcenix Insurance Company, 29 Chy. 426. What is proper compensation to be allowed to a trustee for his management of a trust estate is a matter of opinion, and even if, in granting the allowance, the Court below may have erred ou the side of liberality, that alone is not sufficient ground for reversing the judgment. Where the master had allowed $125, which the court, on appeal, increased to $250, this court refused to interfere. McDonald v. Davidson, 6 A. K. 320. Where the question involved aflfected matters arising in the exercise of statutory powers, and was of general interest, lea ve was given to appeal although a sum less than $200 was at stake. O'Bonohoev. Wkitty, 2 0. R., Ohy. D.424. See also 8. C. 9 P. R. 361, p. 174 The plaintiff being in possession of land as tenant of H., was evicted by the defendant, who claimed under an overdxie mortgage. A n nsuit was entered at the trial, on the ground that the defendant was at law entitled to possession, 'evi- dence of equitable right to possession in the plain- tiff having been refused. The Court of Queen's Bench in its discretion granted a new trial. On appeal to the Court of Appeal ; — Held, that the court could not interfere. Robinson v. Hall, 6 A. R. 534. As to interfering with discretion of judge o^ an application for an interlocutory injunction. See Hat/iaway v. Doig, 6 A. R. 264. The rule generally followed by the court is not to review the finding of the judge of first instance, where his decision depends upon a bal- ance of testimony ; still, if the court in banc upon an application to it has reversed that find- ing, this court must be satisfied upon appeal, that the court in banc was wrong before it will interfere with that judgment. Bale v. Kennedy, 8 A. R. 157. . 2. Time for Appealing and Notice. Where a decree was made at the hearing of a case, but certain questions were reserved for fur- ther directions : — Held, that the year within which an appeal could be brought ran from the making of the decree on further directions, and not from that on the hearing. Freed v. Orr et at. , 6 A. R. 690. By the oversight of a clerk of the appellant's solicitor, the notice of appeal required by R. S. 0. c. 38, (s. 38 O. J. A. 1881), was not given to the Registrar of the court appealed from, but it was duly served on the respondent, who had not been prejudiced. Boyd, C, allowed the noti''e to be filed within four days, upon payment of costs. Re Laws. — Laws v. Laws, 9 P. R. 72. Held, that s. 38, O. J. Act did not affect the plaintiffs' right under R. S. O. c. 38, ». 46, to appeal within a year from the making of the decree, which had been pronounced on the 2nd April, 1881, before the first mentioned Act came into force. Workman v. Rohh, 9 P. E. 169.— Dalton, Q. 0. By the decree in question "Further Direc- tions" were reserved, and it also appeared that the defendant resided in England, but it was not shewn that any attempt had been made to com- municate with lier, nor that if there had it would have been of any use, nor that the defendant had been prejudiced by it :— Held, not sufiicient special circumstances to entitle the defendant to obt lin leave to appeal after the lapse of the month within which notice of appeal is to be given. Miller v. Brown, et al, 9 P. R. 542— Proud- foot. 3. Staying Proceedings. A stay of proceedings will not be granted pending an appeal unless security is giveiTfor the costs of appeal as well as those in the court be- low. Apphcations for a stay should not be made ex parte. Grand Trunk Ry. Go. v. Ontario and Quebec Ry. Co., 9 P. R. 420.— Proudfoot. Bills of costs amounting to $250.10 were on a taxation reduced to $187. 10. The plaintiff con- tended that he was not liable to pay as much as •S187.10, if any sum, and applied to the master in Chambers for an order to stay au execution for $187. 10 pending an appeal to the Court of Appeal, under sec. 33 0. J. Act. This order was refused, and on appeal Boyd, C, held that what was "in controversy on the appeal," was a sum less than $200, and therefore that the order of the master was right. O'Donohoe v. Whitty, 9 P. R. 361. The plaintiff was permitted to proceed with a new trial pending an appeal, where he shewed that he had already been inconvenienced by de- lay, that further delay would prejudice him financially, and that by it he might lose import- ant oral evidence. McDonald v. Murray, et al., 9 P. R. 464.— Winchester, iJej/isiJrar Q. B.D.— Hagarty. The 27th section of the Court of Appeal Act, R. S. 0., c. 38, does not apply to proceedings by injunction, whether the writ has been issued be- fore or after decree in the cause. McLaren v. Caldwell, 29 Chy. 438. See Powell v. Peck, 8 P. R. 85, p. 175. 4. Enforcing Judgment. Held, that a certificate of the Court of Appeal may be acted on in the court below, without issuing a rule upon such certificate. McArthur V. The Corporation of the Township of Southwold, 8 P. R. 27.— Jackson, Master. An ex parte motion to make the certificate of judgment of the Court of Appeal an order of the High Court of Justice was refused, the master in Chambers being of opinion such a course was unnecessary. Freed v. Orr, 9 P. R. 181 — Dalton, Q. 0. Remarks as to the practice of making a certifi- cate of the judgment of the Court of Appeal an order of the Court of Chancery, which has been the uniform practice of that court and is not in- 175 COURT OF APPEAL 176 consistent with R. S. 0. o. 38, ». 44. Norvall v. 7'/ie Oanada Southern Ry. Co. ; Cunnmgham v. The Canada Southern Rij. Go., 9 P. R. 339.— Proudfoot. —The full Court. The proper way of enforcing a judgment of the Court of Appeal is, to have the judgment of the Court below amended, if necessary, according to the judgment in appeal ; and when amended to issue process thereon. Sec. 44 of the Appeal Act, R. S. 0. c. 38, is not superseded by s. 14 of the 0. J. Act. Lovjson, et al. v. The Canada Farmers' Mutual Tm. Co., 8 A. R. 613. See 5'. •C., 9 P. R. 185. 5. Bond and Allowance. The bond for $400 given, under the provisions ■of R. S. 0. , 0. 38 s. 26, is a security for the costs of appeal only ; in order to stay execution for the costs of the Court below, further security must be given. Powell \. Peck, S, i. R. 85.— Steph- ens, Referee. An order allowing $400 to be paid into Court by the appellant in lieu of a bond will be granted •ex parte. Connolly v. O'Reilly, 8 P. R. 159. — Stephens, Referee. Where on a motion in Chambers to disallow a bond given on an appeal, it appeared from the examination of one of the bondsmen that he had lands of sufficient value, but that the conveyances to him were unregistered, it was directed that the convej'ances should be registered. Adamson V. Adamson, 9 P. R. 96. — Stephens, Referee. On appeal to the Court of Appeal from 'the judgment of the Court of Queen's Bench in favour of one P. against the Citizens' Insurance Company, the company paid into Court a sum of money as security for the amount of the judg- ment, as well as for interest and costs, and also for the costs of the appeal. The appeal was dis- missed with costs, and the company then ap- pealed to the Supreme Court and paid a fur- ther sum into Court as security for the costs of such appeal. The Siipreme Court dismissed the ap|jeal with costs. A judge's order was then ob- t;ained, under which the moneys were paid out of court to G. and M. , to whom P. had assigned them. The company afterwa^'ds appealed to the Privy Council, when the appeal was allowed and the judgment of the Supreme Court re- versed. On an action brought therefor : — Held, by Hagarty, C. J., that the company were en- titled to recover back the moneys so paid out of Court on the judge's order for principal and interest, with interest thereon from that pay- ment at six per cent. ; and also all sums paid for costs, but without interest. The Citizens Ins. Co. V. Parsons et al, 32 C. P. 492. An appeal under the Act respecting the wind- ing up of joint stock companies, 41 Vict. c. 5 s. 27 Ont. , cannot be entertained when security has not been given within eight days from the rendering of the final order or judgment appealed from. Re Union Fire Ins. Co. , 7 A. R. 783. Where a bond good in form with proper sure- ties was filed with the clerk of the County Court on the last of the eight days, though not allowed by the judge :— Held to be within the words " given security before a judge," and a sufficient compliance with the Act, though a person thus filing a bond without allowance, risks being deprived of his right of appeal in the event of the bond proving defective. lb. 6. Right to take grounds of Appeal not Taken below. The appeal being allowed in this case on a ground not taken in the Court below or assigned as a reason of appeal, the Court refused the ap- pellant his costs inSappeal. Page et al. v. Austin, 7 A. R. 1. When an appeal was allowed on a ground raised for the hrst time on the argument no costs were given. MIlis v. The Midland R. W. Co., 7 A. R. 464. On the appeal the defendants urged amongst other grounds, one not taken in the rule nisi or raised by the pleadings, namely, that the evi- dence disclosed good cause for dismissal. When offered the opportunity at the trial to amend and raise such defence, counsel for the defendants declined to do so : — Held, that the defence conld not be raised on appeal. Lash v. The Meriden Britannia Co., 8A.R. 680. The petitioner was not allowed to urge before the Court of Appeal a charge of corrupt practices against the respondent personally, which had not been specified in the particulars, or adjudicated upon at the trial of the petition. South Ontario Election— Farwell v. Brown, 1 H. E. C. 420; Sub nom. Farewell v. Brown, 12 L. .1., N. S. 216. L. was expelled from membership in L' U. St. J., an incorporated benefit society, for being in default to pay six months' contributions. Art. 20 of the society's by-laws, see. 5, provides that ' ' When a member shall have neglected during six months to pay his contributions, or the en- tire amount of his entrance fee, the society njay erase his name from the list of members, aad|he shall then no longer form part of the society ; for that purpose, at every general and regular meeting, it is the duty of the Collector-Treasu- rers to make known the names of those who are , indebted iu six months' contributions, or inj a balance of their entrance fee, and then any one may move that such members be struck off from the list of members of the society. " L. therefore brought suit under the shape of a petition, praying that a writ of mandamus should issue, enjoining the company to reinstate him in his rights and privileges as a member of the society. 1. On the ground that he had not been put en demeure in any way ; and that no statement or notice had been given him of the amount of his indebted- ness. 2. On the ground that many other mem- bers of the society were in arrear for similar pe- riod's, and that it was not competent for the so- ciety to make any distinction amongst those in anears . 3. On the ground that no motion was made at any regular meeting. The Court of Queen's Bench for L. C. (appesd side) held that U should have had ' 'prior notice " of the proceedings to be taken withtheviewtohis expulsion ; —Held,, on appeal, that as L. did not raise by his pleadings the want of ' ' prior notice, " or make it a part of his case iu the court below, he could not do so in appeal. Per Taschereau and Gwynne, J J. : —A member of that society who admits that he is in 177 COURT OF APPE/LL. 178 arrears of six montlis' contributions, is not enti- tled to "prior notice " before he can be expelled for non-payment of dues. L' Union St. Joseph de Montreal v. Lapierre, 4 S. C. R. 164. 7. Costs. The appeal in this case was allowed without costs as the bill had been filed on the authority of Boale v. Dickson, 13 C. P. 337, which was properly followed by the court below but was overruled by this Court. McLaren v. Caldwell, ■et al, 6 A. R. 456. On appeal to the Court of Appeal the judg- ments of the Court of Chancery iu favour of the plaintiflfs respectively, were affirmed with costs of appeal ; and the defendants appealed to the Supreme Court. In the first case that court gave leave to the defendants (appellants) to am- end their answer, saying nothing as to costs, and upon such amendment being made, declared that the award upon which the bill had been filed should be null and void, but said nothing about costs. In the second case the Supreme Court ordered a new trial to be had between the parties, without costs to either party. The plaintiflfs having obtained orders of the Court of Chancery making the certificates of the Court of Appeal of the judgments in appeal orders of the Court of Chancery, issued executions thereon for the costs awarded iu appeal : — Held, that the plaintiflfs were not entitled to the costs of the appeal te the Court of Appeal, and the executions were set aside. Norvall v. Canada Southern E. W. Co. ; Cunningham v. Canada Southern R. W. Co., 9 P. R. 339.— Proudfoot and the Full Court. An appeal from the Court of Common Pleas which ordered a nonsuit after verdict for the plain tiflf (31 C. P. 394) the court being equally •divided was dismissed with costs. Neill v. llie Traveller.^ Ins. Co., 7 A. R. 5V0. Where the judgment was varied on a matter ■of discretion no costs of appeal were given. Campbell v. Prince. 5 A. R. 330. See Page etal. v. Austin, 7 A. R. 1, p. 176; MUs •v. TJie Midland R. W. Co., 7 A. R. 464, p. 176. 8. Other Cases. As the court Delow had pronounced no opinion as to whether there should be a new trial or not, the appeal was simply allowed, setting aside the nonsuit but leaving the question of new trial untouched. Walton et al. v. Corporation of the Oounty of York, 6 A. R. 181. In an action for negligence in not keeping a county road in repair, the jury found for the plaintiflf. A rule nisi having been subsequently obtained to enter a nonsuit, or for a new trial, this court made it absolute to enter a nonsuit. On appeal the court allowed the appeal, but made no order as to that portion of the rule nisi in which a new trial was asked, leaving it to be disposed of by this court :— Held, that the rule nisi was completely and finally disposed of, so far as this court was concerned, by the rule to ■enter a nonsuit, which the defendants, by taking it without asking for any reservation so far as regarded the new trial, had acquiesced in : — Held, ■also, Wilson, 0. J., dissenting, that the Court of Appeal have no power, under sec. 23 of the Court 12 of Appeal Act, R. S. 0. c. 38, to direct this court to reopen the rule or reconsider the ques- tion whether, in their discretion, a new trial should be granted. Walton v. The Corporation of tlie County of York, 32 C. P. 35. Two only of several defendants appealed. The respondent by her reasons against the appeal claimed relief over against two of the other de- fendants to the suit, and served them with the rea- sons against appeal, and subsequently with the printed appeal book, and with notice of setting down the appeal for argument. These defendants had never been served with the statutory month's notice of appeal, nor furnished with security for the costs of appeal, nor afforded an oppor- tunity of taking part in the settlement of the appeal book -.—Held, that they were properly before the Court. Freed v. Orr et al, 6 A. R. 690. A cause had been carried down to trial in 1879, when it was postponed at the instance of defen- dants, and a trial took place in 1880, when a ver- dict was rendered in favour of the plaintiffs, which the Court of Queen's Bench refused to set aside. The defendants, thereupon appealed to this court, and when the appeal came on to be heard (in 1882) an application was made by the defendants to be allowed to adduce evidence al- leged to have been recently discovered, tending to relieve the defendants from liability, which evidence it appeared, consisted mainly of entries in the books of the defendants. The court being of opinion that proper diligence had not been used by the defendants, as in such case they must have discovered the evidence at a much earlier date, refused the application with costs. Murray et al. v. The Canada Central Railway Co., 7 A. R. 646. The prisoner was remanded for extradition by the Chancery Division of the High Court of Jus- tice, which on appeal to this Court was affirmed, the court being equally divided, (8 A. R. 31.) A second writ of habeas corpus was thereupon ob- tained, and the prisoner brought before the Com- mon Pleas Division, when he was again remanded, whereupon he again appealed to this court, which appeal was dismissed with costs, as under such circumstances a second appeal could not be enter- tained. Per Hagarty, 0. J., (Spragge, C. J. 0. concurring) . The prisoner having already appeal- ed to this court from the judgment of the Chan- cery Division, he must abide by the legal result of such appeal, viz. , the dismissal of it and con- sequent affirmance of the decision appealed from, and he could not again ask the interference of this court on the same state of facts. In Re Hall, 8 A. R. 135, see S. C. 32 C. P. 498. Per Burton and Patterson, JJ. A. The grounds for the technical rule of practice of the House of Lords on an equal division have no existence in other appellate tribunals, although in the par- ticular case, the appellate court is the court of last resort. lb. The eflfect of an equal division in this court, as in a court of first instance, is simply that the rule or motion drops or the appeal is dismissed, and the judgment below remains undisturbed, but is not considered as a binding authority. lb. The Act 29-30 Vic. e. 45, apparently substi- tuted the right of appeal in habeas corpus cases for successive applications from court to court. Fb. 179 COURTS. ISO Ver Patterson, J. A. By the effect o£ the Judi- cature Act, a decision of any one division ia a decision of the High Court, this matter had there- fore been already disposed of on the former ap- peal. Ih. Section 43 of the Court of Appeal Act, which provides "when on an appeal against a judgment in any action personal, the Court of Appeal gives judgment for the respondent, interest shall be allowed by the court for such time as execution has been delayed by the appeal, " does not apply to a case where the judgment of the court below is in favour of the defendant, and is reversed on appeal. In such case the court on reversing the judgment, gave liberty to the appellant, the plain- tiff in the court below, to move to be at liberty to enter judgment as directed by this court, nunc pro tunc, whereby he would be enabled to recov- er interest on the amount of the verdict rendered in his favour. Qninlan v. The Union Fire Ins. Co., 8 A. E. 376. (See 47 Vict. c. 10 s. 4.) When upon the argument of an appeal, the respondent omitted to point out in what respect the replications of the plaintiff were demurrable, the court refused to wade through the mass of pleading which had been filed in the court be- low, to find it out for themselves ; and being of opinion, in the absence of argument, that the pleading was good, affirmed the judgment of the court below upon such pleadings. lb. The unnecessary and improper length of plead- ings remarked upon, lb When the judgment in the court below over- ruled a demurrer on the assumption that a plea had been amended according to leave given, but the appeal book did not shew the amendment to have been made, and the defence as set out in the printed case was held bad on demurrer, the appeal by the plaintiff was allowed with costs. (Cameron, J. , dissenting, who thought that under the circumstances the plea should be treated as amended pursuant to the leave granted by the court below, and that the judgment of the court below which was in the opinion of this court right as it was given, should not be reversed.) Boswell V. Sutherland, 8 A. R. 233 ; 32 0. P. 131. Plaintiffs, who resided in England, obtained a verdict for the price of goods in defendants pos- session. The defendants appealed to the Court of Appeal. Plaintiffs applied for payment out of $300 paid in by them as security for costs on commencing the action: — Held, that as the plain- tiffs were shewn to have goods in the country, and in the defendants possession, the |300 should be paid out. But for this the plaintiffs would not have been entitled to the money, the appeal being a step in the original cause, not a new action. Napier et al v. Hughes et al, 9 P. R. 164.— Wilson. It appeared that the Despatch Company, de- fendants herein had given notice of appeal to the Court of Appeal from the decision of Osier, J. , be- fore the other defendants appealed to this court. Per Armour, J. Where there is a general judg- ment against several defendants. Rule 510 does not permit them to sever and appeal to different courts, but they were all bound to appeal to the tribunal to which the defendant taking the first step had appealed, and on this ground, the ap- peal should be dismissed. Hately et al v. Mer- chants DespcUch Co., 4 0. R., Q. B. D. 723. See Austin v. Davis, 7 A. R. 478, p. 172. COURT OF CHANCERY. I. Jurisdiction, 180. II. Appeal From — See Court ov Appeal. III. Practice in — See Practice. I. Jurisdiction. The Court of Chancery has jurisdiction in cases of escheat, and held that it was proper for the Attorney General to file a biU in that court to enforce an escheat. Attorney General of Ontario V. O'Eeilly, 6 A. R. 576. The Court of Chancery has no jurisdiction to restrain proceedings on an order granted by a County Court judge to garnish moneys payable by the county to the plaintiff as Clerk of the Peace and County Crown Attorney. The application should be to the Court of Appeal. Van Norman V. Ch-ant, 27 Chy. 498. Where a member of a college council com- plains that he has been improperly expelled from the council, the Court of Chancery under the A. J. Act, has jurisdiction in a proper case to decree relief ; that Act giving jurisdiction to the Court of Chancery ' 'in all matters which would be cognizable in a court of law," although the rem- edy in such a case in a court of law would be sought by mandamus. Marsh v. Huron College, 27 Chy. 605. As to power of the Court of Chancery to make an assessment on policy holders in the solvent branches of a Mutual Insurance Company for the purpose of paying off the liability due to the guarantee stockholders. See I>tiff v. Canadian Mutual Ins. Co., 6 A. R. 238. Where an agreement for a submission contain- ed a clause that it should be made a rule of the Court of Queen's Bench, in England, and all proceedings thereunder should be governed, as in Great Britain, by the provisions of the English C. L. P. Act ; — Held, that this formed no objec- tion to the jurisdiction of the Court of Chancery iri this province. The Direct United States OabU Go. (Limited) v. The Dominion Telegraph Co. of Canada, 8 A. R. 416. See also The Attorney General, of Canada, ex rel Barrett v. The International Bridge Compang, 2& Chy. 65. COURT OF IMPEACHMENT. Impeachment of County Court Judge. See He Squier, 46 Q. B. 474, p. 167. COURT OF REVISION. See Assessment and Taxes. COURTS. I. Rules of — See Rules of Court. II. Appeal from— iSee Appeal. 181 COVENANTS FOR TITLE. . 182 III. Prohibition — See Prohibition. IV. CoDNTY Judges Criminal Covwi—See Criminal Law. V. Judge in Chambers— /See Practice. VI. Nisi 'PRivs—See Trial. VII. Court of Revision— iSec Assessment AND Taxes. VIII. Sessions — See Justices of the Peace — Sessions. IX. Other Courts — See Their Several Titles. Remarks as to what constitutes a Superior or Inferior Court. See Eegina v. O'Sourke, 32 C. P. 388. COVENANT. I. Particular Covenants. 1. In Leases — See Landlord and Ten- ant. 2. In Mortgages — See Mortgage. 3. In Policies — See Insurance. 4. For Title-See Covenants roR Title. II. Injunction Against Breaches op — See Injunction. A covenant to insure for the benefit of an incumbrancer, operates as an equitable assign- ment of the policy of insurance when effected. Greet v. The Citizens Ins. Co., 27 Chy. 121. E. carrying on the trade or calling of a dealer in pictures and photographic business, sold out such business to W., and by the agreement covenanted "not to op«u or start a retail and photographic business of a similar character " in the city of Toronto for five years. By a subse- quent agreement the first was modified, so as to allow E. to sell in any manner to persons resid- ing out of Toronto, and to sell retail in Toronto, on allowing W. a percentage on the prices realiz- ed. W. filed a bill alleging that E. had, prior to such second agreement, sold goods in contra- vention of the first agreement, and had subse- quently sold to a large amount, and prayed an account and payment of his percentage. The court [Spragge, C] being of opinion that such second agreement had been executed for a valu- able consideration, granted the decree as asked, and directed the account to be taken by the Master, although the answer professed to state the actual amount of sales, and on the motion for decree had been read as evidence by the plaintiff. Williamson v. Mwing, 27 Chy. 596. Action for purpose of enforcing covenant to maintain a railway station on lands granted to a railway company for the purposes of a station. See Jesmp v. Grand Trunk S.W.Co.,! A. R. 128. In an action brought to reform a lease and claiming damages for breach of a covenant : — Held, that such claim for damages was not a " purely money demand" under the A. J. Act, R. S. O. c. 49, 8. 4. Gowanloci v. Mans, 9 P. R. 270.— Dalton, Master. See also, Green et al. v. Watson, 2 0. R. 627. COVENANTS FOR TITLE. I. Coven AN IS running with the Land, 182. II. Other Covenants, 182. I. Covenants running with the Land. Where D. , the owner of certain lands on selling part to B. , inserted this clause in the conveyance : "Bellevue Square is private property, but is al- ways to remain unbuilt upon except one residence with the necessary outbuildings, including por- ter's lodge," and the purchaser on his part, cove- nanted not to allow any business of a certain kind to be carried on on the part conveyed : — Held, that the benefit of the restriction passed to the assignee of the purchaser, as one of the advan- tages and privileges appurtenant to the land, though the word " assigns " was not there, and though the benefit of it was not formally trans- ferred to him. VanKoughnet v. Denison, 1 0. E., Chy. D. 349. Where it is clearly intended to give some tan- gible benefit to a grantee by such a covenant in the conveyance to him, and it formed a part of the consideration which induced his purchase, the court will go far to give effect to the language, whatever hardship may be occasioned to the par- ty who has entered into the engagement. lb. Where the person who was building the house objected to, held under an agreement for a lease, but had made no outlay on the property till after notice was served on her, nor paid any rent : — Held, that she was not in the same position as an innocent person holding for value under a com- pleted instrument, and the erection of the house must be stopped. lb. Where the square had been built upon for years without objection by purchaser or his ven- dee, the plaintiff ; but the building had been done by purchasers under a mortgage executed by D. before he conveyed to B. : — Held, no proof of acquiescence, as they could not have objected- with effect. lb. See also Clark v. Bogart, 27 Chy. 450. II. Other Covenants. Action by the plaintiff against defendant as administratrix of one J. McK. for breach of cove- nant for title contained in a deed made by hifti to his son, the plaintiff. The deed purported to be under the Short Forms Act, and the covenant was that the gra:xtor had the right to convey, omitting the words " notwithstanding any act of the said covenantor : — Held, following Brown y. O'Dwyer, 35 Q. B. 354, that although not in accordance with the statute, it bound the covenantor as an absolute covenant that he was seized and had a right to convey in fee simple. McKay v. McKay, 31 C. P. 1. The deed contained two several parcels of laud, and the plaintiff was evicted from one, but was still owner of the most valuable parcel : — Held, that the measure of damages was not the whole purchase money, but only the proportionate value of that part to which the title failed. lb. 183 CRIMINAL LAW. 184 It appeared that, at the time of the transaction in question, the father was some seventy years old, and reposed great confidence in his son, the plaintiff, and was in the habit of relying upon his advice. Without any apparent reason for parting with the land, on which he lived, and which was worth 16,000, he was induced by the plaintiff to sell it to him for $3,000, $1,000 of which con- sisted of alleged stale demands by the soiji against the father, barrtd by the Statute of Limitations, and the balance of $2,000 was secured by a mort- gage, with interest at six per cent. , neither prin- cipal or interest being payable for ten years, the father being permitted to remain on the land during his life. The mortgage was produced, with the registrar's certificate of discharge en- dorsed thereon, but there was no evidence as to the execution of the discharge, or as to how the mortgage came into the plaintiff's possession. There was no corroboration of the plaintiff's statement of the existence of the debt of f 1,000, except a receipt of §15, which the court refused to accept as genuine, while in corroboration of his assertion of the payment of the mortgage, some four receipts were put in by the plaintiff, which, though purporting to have been given at different intervals and different places, within four years from the execution of the mortgage, all appeared by the water mark to have been written on and torn from the same sheet of paper; and being of a very suspicious character, the court also refused to accept them as genuine : — Held, that the evidence having failed to prove that the mortgage had been paid off, and it being therefore outstanding, nq action could be brought on the covenant in the deed. lb. On a sale of ' 'timber limits" held under licenses in pursuance of the Con. Stat. Canada, o. 23, a clause of simple warranty (garantie de tons trou- bles g^n^ralement quelconques) does not operate to protect the purchaser against eviction by a per- son claiming to be entitled under a prior license to a portion of the limits sold. Ducondu v. Dupuy, 9 App. Cas. 150; reversing judgment of Supreme Court, 6 S. C. E. 425. See also The Real Estate Investment Co . v. 2Vte Metropolitan Building Society, 3 0. R. 476. CREDITORS SUIT. See Menzies v. Ogilvie, 27 Chy. 456 ; Lee v. Credit Valley Railway Co., 29 Chy. 480. CRIMINAL LAW. I. Assault. 1. Evidence, 184. II. Bribery, 184. III. Embezzlement, 184. TV. Forgery, 184. V. Malicious Injury to Property, 186. VI. Maliciously Wounding, 186. VII. Murder and Manslaughter, 187. VIII. Obtaining Money under False Pre- tences, 187. IX. Receiving Stolen Goods, 187. X. XL XII. XIIL XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. Trespass to Land. — See Justices of THE Peace. Procedure. 1. Indictment, 187. 2. Case Reserved, 188. County Judges Criminal Court, 188. Jury, 189. Evidence, 190. Error, 191. Apprehension and Arrest of Offen- ders, 191. Costs and Expenses of Criminal Jus- tice, 191. Compounding Prosecutions — See Com- promising. . Extradition of Criminals — See Ex- tradition. Habeas Corpus — See Habeas Corpus. Summary Convictions — See Justices OF THE Peace. XXII. Other Offences. 1 . Extortion — See Extortion. 2. Oaming — See Gaming. 3. Sunday — See Sunday. I. Assault. 1. Evidence. On an indictment for assault and battery, oc- casioning actual bodily harm : — Held, that the defendant is not a competent witness on his own behalf under 43 Vict. c. 37, D. Regina v. Rich- ard.'ion, 46 Q. B. 375. Upon the trial of the prisoner, a school teacher, for an indecent assault upon one of his scholars, it appeared that he forbade the prosecutrix tell- ing her parents what had happened, and they did not hear of it for two months. After the prose- cutrix had given evidence of the assault, evidence was tendered of the conduct of the prisoner to- wards her subsequent to the assault : — Held, that the evidence was admissible as tending to shew the indecent quality of the assault, and as being in effect a part or continuation of the same trans- action as that with which the prisoner was charged. Per Hagarty, C. J., and Armour, J. The evidence was properly admissible as evidence in chief. Regina v. Chute, 46 Q. B. 655. II. Bribery. The giver of a bribe as well as the receiver may be indicted for bribery. North Victoria Election — Cameron v. Maclennan, 1 H. E. 0. 584. III. Embezzlement. See In re HaU, 8 A. R. 31, p. 185. IV. Forgery. The prisoner was a clerk in the office of the comptroller of the city of Newark, New Jersey, 185 CRIMINAL LAW. 186 U. S. A., his duty being to make proper entries of moneys received for taxes in the official books of the comptroller provided for that purpose. Having received a sum of money for taxes, he entered the correct amount at first, and then erasing the true figures he inserted a less sum, with intent to benefit himself by the abstractipn of the difference between the two, and to deceive the comptroller and the municipality : — Held, that the offence was forgery, and that the pri- soner had been properly committed for extradi- tion. Ill re Hall, 3 0. E., Chy. D. 331 ; 9 P. E,. 373. See next case. It is not necessary to constitute the crime of forgery that another's right shall have been actu- ally prejudiced, the possibility of prejudice to another is sufficient ; and if publication be neces- sary, the books in question being of a public cha- racter, the forged entry in them must be regarded as having been published as soon as made. lb. The prisoner was a clerk in the employ of the mayor and common council of the city of New ark, (in the State of New Jersey, V. S. A.), a portion of his duties being to receive payment of taxes payable to the city ; and on the 18th of November, 1881, a sum of |562. 32, for taxes, ftc, due upon certain lands in that city, was paid to him — such sum being included with other taxes in a cheque of the party assessed for |4, 094. The $562.32 was composed of three items : costs .§7. - 70, interest $72.08, and taxes $482.54— each of which required to be entered in a separate column of the cash-book belonging to the office of the comptroller. The gross sum, ($562.32), had ap- parently been entered first in the column headed " Totals," and subsequently in making the sep- arate entries the sum of $482.54 was entered as S282.54, and the figure " 3 " in the total column substituted ; the difference ($200), being ab- stracted by the prisoner from moneys paid to him on that day : — Held, (Per Spragge, €. J. 0., and Gait, J.), that this act amounted to the crime of forgery, and, as such, rendered the prisoner liable to extradition. Per Burton and Patterson, JJ. A., that such alteration was not forgery, though the act amounted to one of embezzlement, and therefore that the prisoner was entitled to be discharged, embezzlement not being one of the offences for which a party was at the time liable to be extradited under the Ashburton Treaty. In re Hall, 8 A R. 31. The prisoner, who was collector of the County of Middlesex, in the State of New Jersey, kept a book in which to enter the payment and re- ceipts of all moneys received by him as such collector, and which was the principal book of account kept by him. The book was purchased with the money of the county, and was kept in the collector's office, and was left by him at the close of his term of office; it was by statute open to the inspection of those interested in it, and contained the certificate of the county auditors as to the correctness of the matters therein con- tained :— Held, that the book was the pubhc property of the county, and not the private pro- perty of the prisoner. After the book had been examined by the proper auditors as to the amounts received and paid out by and through the prisoner as such collector, and a certificate of the same made by them, the prisoner, who was a defaulter, with intent to cover up his de- falcation, altered the book by making certam false entries therein of moneys received and jjaid out, and changing the additions to correspond. Some of these entries were by the prisoner him- self, and others by his clerk under his direction, but the clerk on finding that such entries were false changed them back : — Held, that this con- stituted forgery at common law, as well as under our statute 32-33 Vict. c. 19, D. :— Held, also, that under the Extradition Act of 1877, 40 Vict, c. 25, D. , it is essential that the offence charged should be such as if committed here would be an offence against the laws of this country. The offence, however, was also proved to be forgery by the laws of New Jersey. In re Jarrard, 4 0. E., C. P. D. 265. Affirmed, see 20 C. L. J. 145. P. was the superintendent of the Blocksley Almshouse, situated in and supported by the city of Philadelphia, U. S. Parties supplying provi- sions, &c., for the use of the charity were paid by warrants duly prepared and signed by the pro- per officers thereof. Three such warrants for the payment of certain persons or firms were in the hands of W. , the secretary of the almshouse, to be delivered to them on their respectively signing the stub or counterfoil of the warrants. P., who was well known to the secretary, ap- phed to him for these warrants, stating that he had authority from the several parties to sign for them, which he did accordingly, and W. handed over to him the warrants, which were subsequently cashed at the office of the city treasurer. P. having fled to this Province, an application was made for his extradition before the judge of the County Court of Wentwovth, when expert evidence was adduced proving that according to the Statute Law of Pennsylvania, as also at Common Law as there interpreted, these facts constituted the crime of forgery : — Held, on appeal, per Spragge, G. J. 0., and Patterson, J . A. [affirming the judgment of the Queen's Bench Div. 1 0. R. 586], that the acts amounted to the crimeof forgery, and so rendered ' P. liable to be extradited. Per Burton, J. A., and Ferguson, J., that in the absence of any suspicion of any complicity of W. in the fraud, the facts would not have made out the crime of forgery ; but as the evidence afforded ground to infer that W. and P. were in collusion, and liad combined together for the purpose of committing the fraud by means of the false documents, and was therefore sufficient to warrant the committal of P. for the crime of forgery at common law, the order for his committal for extradition should be affirmed. In Re Phipps, 8 A. E. 77. See also Regina v. Hovey, 8 P. E. 345. V. Malicious Injury to Pkoperty. See Regina v. Oougk, 3 0. E., 402, p. 187. VI. Maliciously WouNDijfo. On motion to discharge prisoner on habeas corpus on conviction before a Police Magistrate, the conviction charged that the prisoner did "unlawfully and maliciously cut and wound one Mary Kelly, with intent then and there to do her grievous bodily harm :" — Held, that, the ad- dition of the words, "with intent to do grievous bodily harm," did not vitiate the conviction, and. 187 CRIMIlSrAL LAW. 188 that the prisoner might be lawfully convicted of the statutory misdemeanour of malicious wound- ing : — Held, also that imprisonment at hard Igbour for a year was properly awarded iinder 38 Vict. c. 47. Beginav. Boucher, 8 P. B. 20.— Hagarty. Affirmed, 4 A. K 191. VII. Murder and Manslaughter. An indictment contained two counts, one charging the prisoner with murdering M. .1. T. on the 10th November, 1881 ; the other with manslaughter of the said M. J. T. on the same day. The grand jury' found "atruebiU." A motion to quash the indictment for misjoinder was refused, the counsel for the prosecution electing to proceed on the first count only: — Held, — Affirming the judgment of the court a quo, that the indictment was sufficient. Theal V. The Queen, 7 S. C. R. 397. The prisoner was convicted of manslaughter in killing his wife, who died on the 10th Novem- ber, 1881. The immediate cause of her death was acute inflammation of the liver, which the medical testimony proved might be occasioned by a" blow or a fall against a hard substance. About three weeks before her death, {17th Octo- ber preceding) the prisoner had knocked his wife down with a bottle : she fell against a door, and remained on the floor insensible for some time ; she was confined to her bed soon afterwards and never recovered. Evidence was given of frequent acts of violence committed by the prisoner upon his wife within a year of her death, by knocking her down and kicking her in the side. On the reserved questions, viz. , whether the evidence of assaults and violence committed by the prisoner upon the deceased, prior to the 10th November or the 17th October, 1881, was properly received, and whether there was any evidence to leave to the jury to sustain the charge in the first count of the indictment : — Held, affirming the judg- ment of the Supreme Court of New Brunswick, that the evidence was properly received, and that there was evidence to submit to the jury that the disease, which caused her death, was produced by the injuries inflicted by the pri- soner. 76. See Eegina v. O'Eourlce, 32 C. P. 388, pp. 189. 190. VIII. Obtaining Money under False Pretences. See AhraJiam v. The Queen, 6 S. C. R. 10, p. 188 ; Eegina v. Ooodman et al., 2 0. R. 468, p. 189 ; Ooodman et al. v. Eegina, 3 0. R. 18, p. 189- IX. Receiving Stolen Goods. See Eegina v. St. Denis, 8 P. R. 16, p. 188. XI. Procedure. 1. Indictment. In an indictment purporting to be under 32 & , 33 Vict. 0. 22, s. 45, D., for malicious injury to property, the word "feloniously" was omitted: —Held, bad, and ordered to be quashed. Eeaina V. Gough, 3 0. R., C. P. D, 402? ^ On an indictment, containing four counts for obtaining money by false pretences, was en- dorsed : "I direct that this indictment belaid before the grand jury. Montreal, 6th October, 1880 :— By J. A. Mousseau, Q, C. ; 0. P. David- son, Q. 0. ; L. 0. Loranger, Attorney -General. Messrs. Mousseau and Davidson were the two counsel authorized to represent the crown in all the criminal proceedings during the term. A motion supported by affidavit was made to quash the indictment on the ground, inter alia, that the preliminary formalities required by s. 28 of 32-33 Vict. c. 29 had not been observed. The chief justice allowed the case to proceed, in- timating that he would reserve the point raised should the defendant be found guilty. The de- fendant was convicted, and it was held, on ap- peal, reversing the judgment of the Court of Queen's Bench, that under 32 and 33 Vict. c. 28, s, 28, the attorney-general could not delegate to the judgment and discretion of another the power which the legislature had authorized him person- ally to exercise to direct that a bUl of indict- ment for obtaining money by false pretences be laid before the grand jury ; and it being admit- ted that the attorney-general gave no directions with reference to this indictment, the motion to quash should have been granted, and the verdict ought to be set aside. Abrahams v. The Queen, 6 S. C. R. 10. See Eegina v. St. Denis, 8 P. R. 16, infra; Theal v. The Queen, 7 S. C. E. 397, p. 187. 2. Case Eeserved. Under C. S. U. 0. c. 112, any question of law which may have arisen on the criminal trial, may be reserved for the consideration of the Jus- tices of either of Her Majesty's Superior Courts of common law. Quaere, per Armour, J. , having regard to the pro^ions, of the Judicature Act, whether a reservation to the Justices of the Queen's Bench Division of the High Court of Jus- tice was authorized. Eegina v. Bissell, 1 0. E., Q. B. D. 514. See Eegina v. Q'Eourhe, 32 C. P. 388 ; 1 0. R. 464, pp. 189, 190. XII. County Judges Criminal Court. The prisoner was convicted before a County Judge's Criminal Court on a charge of receiving stolen goods, knowing them to have been felon- iously stolen, and was sentenced to imprison- ment. On an application for a habeas corpus— ,Held, that the court was a Court of Record, and that under R. S. 0. c. 70 s. 1, there was there- fore no right to the writ. Eegina v. St. Denis, 8 P. E. 16. — Cameron. Held, also, that the judge had power to im- prison. Jb. Held, also, that if an indictment for stealing certain articles, be sustainable as to some of the articles stolen, the conviction is good, although the indictment ihay contain any number of articles as to which an indictment could not be sustained. lb. The prisoners were committed for trial on a charge of gambling in a railway train. On the case coming before the county judge for trial, an mdiotment was preferred, under 42 Vict. c. 44, 189 CRIMINAL LAW. 190 s. 3, D., for obtaining money by false pretences. The prisoners' counsel objected to the prisoners being tried on a dififereut charge from that on which they had been committed. The objec- tion was overruled, and the charge read over to the prisoners, and, on its being explained that they could be tried forthwith orremain in custody until the next sittings of Oyer and Terminer, etc , they pleaded not guilty, and said they were ready for trial. The case then proceeded, and the prisoners were convicted ; no question being raised as to their having been tried without their oonsent, although their counsel took other objec- tions to the proceedings. A writ of habeas cor- pus having been issued, and the prisoners' dis- charge moved for, on the ground of the absence of such consent :— Held, that the motion must be refused. Per Wilson, C. J. It was uimeces- sary to decide whether the prisoners' remedy was by habeas corpus or writ of error, because, on the facts, they were not entitled to either remedy. Per Osier, J. The prisoners having been imprisoned under the conviction of a court of record, an objection of error in a proceeding must be by writ of error : the writ of habeas corpus was therefore improvidently issued, and should be quashed. Segina v. Goodman and Wilson, 2 0. R., C. P. D. 468. See next case. The plaintiffs in error were charged with hav- ing defrauded one 0. by a game called three card monte. They consented to be summarily tried. When' brought up for trial the crown Attorney asked for and obtained leave to substitute a charge of combining to obtain money by false pretences, the prisoners objecting. The trial proceeded without the consent of the prisoners obtained to be tried summarily for this offence. They were convicted and sentenced to one year's imprisonment : — Held, on error, that their con- sent to be summarily tried on the substituted charge should appear, and that in its absence the conviction was bad : — Held, also that it was bad in adjudging the sentence of one year, the Act, 40 Vict. c. 32 D., only authorizing a sentence for any term less than a year. Goodman et al v. Regina, 3 O. E,., Q. B. D. 18. XIII. Jury. To an indictment for murder the prisoner pleaded, challenging the array of the jury pa,nel, which plea was demurrred to and judgment given in favour of the crown by the learned judge, hold- ing the Court of Oyer and Terminer, who, at the request of the prisoner, reserved a case for the consideration of the Common Pleas Division : — Held, not a matter which could be reserved under C S. U. C. c. 112, and the case was therefore directed to be quashed. Eeg'ma v. O'Rourhe, 32 0. P. 388. Semble, per Wilson, 0. J., that a writ of error was the proper remedy, and that, notwithstand- ing the Judicature Act, it would lie in the first instance to either the Queen's Bench or Common Pleas Division, and not to the Court of Appeal. Remarks as to what constitutes a Superior or Interior Court. lb. By the Dominion Act 32 and 33 Vict. u. 29. s. 44, the selection of jurors in criminal cases is a,u- thorized to be in accordance with the provincial laws, whether passed before or after the coming into force of the B. N. A. Act, subject, however, to any provision in any Act of the Parliament of Canada, and in so far as such laws are not iueou- sistent with any such Act. By the Provincial Acts 42 Vict. c. 14, and 44 Vict. c. 6, the mode of selection of jurors in criminal cases, as provid- ed by C. S. U. C. c. 31, as amended by 26 Vict. c. 44, was changed by excluding the clerk of the peace as one of the selectors, and requiring the selection to be made only from those qualified to serve as jurors whose surnames began with cer- tain alphabetical letters, instead of from the whole body of those competent to serve as previously re- quired. The jury in question were selected un- der these Provincial Acts. Semble, that the 32 and 33 Vict. c. 29, D., was not ultra vires of the Dominion Parliament as being a delegation of their powers, and that the selection made in ac- cordance with the Provincial Acts, was valid. lb. Quaere, whether the selection and summoning of jurors is a matter of procedure, or relates to the constitution and organization of criminal courts, lb. See next case. By 32 and 33 Vict. c. 29, sec. 44, D., every per- son qualified and summoned to serve as a juror in criminal cases according to the law in any pro- vince, is declared to be qualified to serve in such province, whether such laws were passed before the B. N. A. Act or after it subject to, and in so far as such laws are not inconsistent with any Act of the Parliament of Canada. By 42 Vict, c. 14, (0.) and 44 Vict. c. 6 (0.), the mode of se- lecting jurors in all cases, formerly regulated by 26 Vict. c. 44, was changed. The jury was selec- ted according to the Ontario Statutes, and the prisoner challenged the array, to which the crown demurred, and judgment was given for the crown. The prisoner was found guilty and sentenced, and he then brought error : — Held, per Hagarty, 0. J., that the Dominion Statute was not ultra vires by reason of its adopting and applying the laws of Ontario as to jurors to criminal procedure. Regina ^f. O'Rourhe, 10. R., Q. B. D. 464. Semble, that under s. 139, Con. Stat. U. C- c. 31, where no unindifference or fraudulent deal- ing o£ the sheriff is shewn, any irregularities are not assignable for error. lb. Per Armour and Cameron, JJ. The objection raised by the prisoner was not a good ground of challenge to the array. lb. Qusere, whether, when such a question has been reserved by a judge at the trial, it can after- wards be made the subject of a writ of error. lb. XIV. Evidence. Held, that a magistrate cannot take judicial notice of Orders in Council, or their publication, without proof thereof by production of the offi- cial Gazette, and therefore that a conviction was bad which was made without such evidence, that the Canada Temperance Act of 1878 was in force in the county pursuant to the terms of s. 96 there- of. Regina v. Bennett, 1 0. R. , Q. B. D. 445. Held, Armour, J., diss., that the evidence of a wife is inadmissible, on the prosecution of her husband for refusal to support her, under 32-33 Vict. c. 20, s. 25. Regina, v. Bisaell, I O. B,., Q. B. D. 514. Upon a prosecution for uttering forged notes, the deposition of one S. taken before the police 191 CROSS BILL. 192 magistrate on the preliminary investigation was read, upon the following proof that S. was absent from Canada : — R. swore that S. had a few months before left his, (K.'s) house where she (S.) had for a time lodged, that she had since twice heard from her in the U. S. A,, but not for six months. The chief constable of Hamilton, where the prisoner was tried, proved ineflfectual attempts to find S. by means of personal enquiries in some places, and correspondence with the police of other cities. S. had for some time lived with the prisoner as his wife : — Held, upon a case reserved, Cameron, J., diss., that the ad- missibility of the deposition was in the discretion of the Judge at the trial, and that it could not be said that he had wrongly admitted it. Regina V. Nehmi, 1 O. E., Q. B. D. 500. Per Patterson, J. A. Remarks upon the gen- eral right of a person charged before a magistrate with an indictable offence to call witnesses for his defence, and of a person whose extradition is demanded to shew by evidence that what he is charged with is not an extradition crime : — Sem- ble, that the evidence here offered, as stated in the report of the case, was not improperly re- jected. In re Phipps, 8 A. R. 77. Refusal of witness to answer on the ground that he may criminate himself. — Right to require oath of witness : see Power v. Mlis, 6 S. C. R. 1. See Tl^al v. The Queen, 7 S. C. R. .397, p. 187. XV. Errok. See Eegina v. Goodman et al, 2 O. R. 468, p. 189 ; Goodman et al. v. Jieghia, 3 0. R. 18, p. 189; Hegina v. O'Bourke, 32 c'. P. 388, p. 189 ; S. 0. 1 0. R. 464, p. 190. XVI. Apprehension and Akre.st op Offenders. The prisoner was arrested in Toronto, upon in formation contained in a telegram from England charging him with having committed a felony in that country, and stating that a warrant had been issued there for his arrest : — Held, that a person cannot, under the Imperial Act 6 & 7 Vict. o. 34, legally be arrested or detained here for an offence committed out of Canada, unless upon a warrant issued where the offence was committed, and endorsed by a judge of a Superior Court in this country. . Such warrant must disclose a fel- ony according to the law of this country, and Semble, that the expression "felony, to wit, lar- ceny," is insufficient. The prisoner was there- fore discharged. Eegina v. McHolme, 8 P. R. 452. — Cameron. XVII. Costs and Expenses of Criminal Justice. Where an indictment for obstructing a high- way had been removed by certiorari, at the in- stance of the private prosecutor, into this court and defendant had been acquitted : — Held, that there was no power to impose payment of costs on such prosecutor. The court, however, has power to make payment of costs a condition of any indulgence granted in auch a case ; such as the postponement of the trial, or « new trial. Megina. v. Sart, 45 Q. B. 1. Held, that the liability of the crown to the payment of expenses connected with the adminis- tration of criminal justice in the province out of the consolidated revenue fund is restricted, under R. S. 0. c. 86, s. 1, to such expenses as are men- tioned in the schedule to the Act ; and that the county, under R. S. 0. c. 85, is required to pay all other proper expenses connected therewith :— Held, also, that the county attorney of York, though not clerk of the peace, is an officer com- ing within the said c. 85, whose expenses form part of the expenses of the administration of crim- inal justice. Where, therefore, the account of the county attorney of York, for the quarter end- ing 31st December, 1879, for expenses connected with the administration of criminal justice, was audited by the county board of audit and paid, but certain of the items were disallowed by the provincial treasurer as not payable by the croTpn out of the consolidated revenue fund, not beiir contained in the schedule, and the board of audit, therefore, in auditing the county attorney's ac- count for a subsequent quarter, deducted there- from the amount of said disallowed items, a man- damus was granted to the board to rescind their order for such deduction. Se Fenton, Cownlf Crown Attorney for the County of York, and Board of Audit of the County of York, 31 C. P. 31. See In re Stanton and the Board of Audit for the Cminty of Elgin, 3 0. R. 86, p. 166. CROPS. Rights of Tenants — See Landlord and Tenant. Right of married woman to crops on land owned by her and occupied by her and her husband. Kee Ingram v. Taylor, 46 Q. B. 52 ; 7 A. R, 216. Where crops produced from the land after the 1st November, 1879, were distrained, and the plaintiffs claimed them under a chattel mortgage, given on 31st i\Iay, 1880, of such crops which had then been just sown : — Held, that the grow- ing crops passed by the chattel mortgage to the plaintiffs, who were entitled to recover for them as against the defendants. Laing et al v. Ontario Loan and Savings Co., 46 Q. B. 114. Crops to be sown upon certain land may be the subject of sale as any other after-acquired property, and the property in them will pass, when sown, if they are so described as to be capable of being identified when acquired. Gross et al V. Austin, 7 A. R. 511. Right to crops of purchaser of land in mort- gage suit. See McDowall v. Phippen, 1 0. K 143. As to growing crops comprised in Chattel Mortgages. See Hamilton v. Harrison, 46 Q. B. 127, p. 86 ; Grass et al v. Austin, 7 A. E. 511, p. 89. See also Cleaver v. The North of Scotland Cana- dian Mortgage Co., 27 Chy. 508. CROSS BILL. See Pleading. 193 CROWN LANDS. 194 CROWN. I. Escheat — See Escheat. II. Petition op Eight — See Petition of Right. III. Crown Lands — See Crown Lands. IV. Crown Timber — See Crown Lands. Proceedings by attachment against absconding debtor for debt due to tbe crown. See Regina v. Stewart, 8 P. R. 297, p. 2. Right of crown to plead prescription. See Chevrier v. The Queen, 4 S. C. R. 1. The maxim that the crown can do no wrong applies to alleged tortious acts of the oflBcers of a public department of Ontario. See The Mus- koka Mill Co. v. The Queen, 28 Chy. 563. The Statute of Limitations was held not to be a bar to an action, though brought by the crown in its capacity as trustee of the land in question in the suit. Attorney-General y. Midland R. W. Co., 3 0. R., Chy. D. 311. Per Ritchie, C.-J. That neither the engineer nor the clerk of the works, nor any subordinate officer in charge of any of the works of the Domin- ion of Canada, have any power or authority, ex- press or implied under the law, to bind the crown to any contract or expenditure not specially au- thorized by the express terms of contract duly entered into between the crown and the contrac- tor according to law, and then only in the specific manner provided for by the express terms of the contract. O'Brien v. The Queen, 4 S. C. R. 529. As to liability of the crown for the negligence of its servants. See Regina v. McFarlane, 7 S. C. R. 216. CROWN LANDS. I. Rights Before Issue of Patent, 193. II. Rights op Grantees, 193. III. Crown Timber. 1. Rights of Licensees, 195. IV. Possession of — See Limitation of Ac- tions AND Suits. I. Rights Before Issue of Patent. A by-law passed by a municipal corporation cannot have the effect of takmg any lands of the crown in addition to those appropriated by the crown for the purpose of highways in order to the opening up of the country. Neither can par- ties in possession of crown lands before patent issued dedicate any portion of the same : parties so in possession, however, may so far bind them- selves by their acts as that when a patent shall issue to them the lands granted would be bound by any right or easement to which their sanc- tion has been obtained. Roe v. Trim, 27 Chy. 374. See also Waison v. Lindsay et al, 27 Chy. 253 ; 6 A. R. 609. II. Eights of Grantees. In a patent from the crown, of lots 16 and 17, in the 11th concession of Snowdon, the patentee 13 was described as " a free grant settler " ; but the patent on its face purported to grant the land ab- solutely and unconditionally, and did not contain the statements required by sec. 16 of the Free Grant and Homesteads Act, R. S. 0. c. 24 : and there was no evidence that the patentee ever was a locatee of the land under said Act, or that the cro'HTi intended issuing the patent thereunder : — Held, that the land must be deemed to have been granted absolutely and unconditionally, Semble, that the patent might have issued under sec. 12 of the Public Lands Act, R. S. 0. c. 23. Canada Permanent Loan and Savings Co. v. Taylor, 31 C. P. 41. The Ontario, Simcoe, and Huron Railway Com- pany, (afterwards changed to "The Northern Railway of Canada,") in the course of the con- struction of their roadway, acting in assumed and alleged pursuance of the powers conferred on the company by its charter, entered upon and took possession of certain government lands held by the principal officers of Her Majesty's Ordnance for ordnance purposes, and proceeded to con- struct their road thereon. Afterwards negotia- tions were opened between the company and the principal oflBcers for acquiring such right of w Water Courses. 2. Description of Parties, 202. 3. Conditions, Reservationn and Excep- tions, 202. .4. Under Short Forms Act, 203. 5. Covenants in — See Covenant— OoTE- nants foe Title. 6. Estate Created — See Estate. 201 DEED. 202 7. Other Cases, 203. IV. Rectifying and Varying, 204. V. Evidence of Loss of Deed— iSee Evi- dence. VI. Presumptions as to Deeds — See Evi- dence. VII. Estoppel by Deed— iSee Estoppel. VIII. Registration of — See Registry Laws. IX. Particular Deeds — See The Several TiTLKS. I. Execution. 1. Seal. Tlie testimonium clause in a power of attorney declared that the principal set his hand and seal to the instrument. The attestation clause de- clared that it was signed and sealed in the pre- sence of a subscribing witness, and opposite the signature of the principal was a visible impres- sion made by the pen in the form of a scroll in which was inscribed the word "seal :" — Held, a sufficient sealing of the document. lie Bell and Black, 1 0. R., Chy. D. 125. II. Alteration. Alteration of discharge of mortgage by mort- gagee's agent. See Sayles v. Brown, 28 Ohy. 10. H. obtained from his debtor an absolute con- veyance of land as security, which was attacked by the plaintifif, who had subsequently recovered an execution against the grantor, as being a fraudulent preference. It was shewn that the deed, after its execution, had been altered by the grantee so as to convey the correct lot (22 instead of 122), the only lot owned by the grant- or but no re-execution or acknowledgment took place ; the grantor, however, accepted a lease from H. of the correct lot, which he afterwards surrendered to H : — Held, that as the grantor, according to the ruling in Sayles v. Brown, 28 Chy. 10, could not claim to have the conveyance vacated, so neither could his creditor, the plain- tiff. Sommerville v. Rae, 28 Ohy. 618. III. Construction and Operation. 1. Description of Land. (a) Generally. The premises intended to be conveyed by a tax deed, from the warden and treasurer to the plaintiff, were described therein as 180 acres of the east halves of two lots " commencing at the front east halves of siid lots, taking the full breadth of each half respectively and running northwards so far as required, to make ninety acres of each half :" — Held, that " northwards" might be rejected, being evidently a mistake for westward. Ferguson v. Freeman, 27 Ohy. 211_ A description of land in a deed by reference to other conveyances for a fuller description is sufficient. In re Treleven and Horner, 28 Chy. 624. Held, that the words " be the same more or leas," following the description of the quantity of land, improperly inserted in a sheriff's deed might be rejected as surplusage. Nelles v. White, 29 Chy. 338. See also Foott v. Rice et at, 4 0. R. 94. 2. Description of Parties. The deed to the defendant company described it by its original name of P. H. L. & B. R. Co., when in fact its name had then been changed : — Held, a sufficient descriptio personffi, to enable the company to take, though it might not be sufficient to sue in. Grand Junction Jt, W. Co. V. Midland R. W. Co., 7 A. R. 681. 3 . Conditions, Reservations and Exceptions. Defendant conveyed to his son J. L., jun., the east half of a lot, " reserving from the operation of these presents unto the said parties of the first and second parts (the latter being defendant's wife), during their joint lives, and during the life of the survivor, one acre of the said lot here- by conveyed, the same acre to be taken in any part of the lands hereby conveyed, where the said parties of the first and second parts see fit." Defendant continued to live on the lands with his son tiU the latter's death, in 1876. Several years before his death, J. L. , jun., built a small house on the land, which was occupied by his men till his death. After his son's death the de- fendant went off the land, but returned in about a year, and lived in the small house built by his son, and improved the same. The mortgagees of the son sold to the plaintiff under the power in their mortgage, and the defendant, at the sale to the plaintiff, on being asked, said he had not selected his acre, was then asked to do so, and then selected the part where he was living. The plaintiff was present and heard tliis, and his con- veyance was "subject to the reservations con- tained in the deed from J. L. , sen. , (the defen- dant,) to J.L. jun :" — Held, that the reserva- tion in the deed from the defendant to his son was more properly an exception than " reserva- tion : that an estate for the joint lives of the de- fendant and his wife, and for the life of the sur- vivor, remained in the defendant ; and he there- fore was entitled to select the acre at any time, and was not bound to do so in the life time of his son. Burnham v. Ramsey, 32 Q. B. 49, dis- tinguished. Lapointe v. Lafleur, 46 Q. B. 16. The estate in question had been conveyed to G. D. & L. P., between whom a partition had been made, not under seal, giving to L. P. the east half. Afterwards G. D. conveyed to the defendant his interest in the east half, and after the execution of the deed by the defendant to his son, L. P. by deed, reciting that by over- sight there was no release from him of the east half, and that he was desirous of completing the son's title, released the east half to the son. It was contended that the defendant owned only an undivided moiety of the lot when he convey- ed ^ to his son, and that the plaintiff, claiming through the son, could recover an undivided moiety of the acre selected by the defendant ; but-: — Held, otherwise, for the plaintiff took his deed subject to the reservation in the defendant's deed to his son, and the deed from L. P. to the son would enure only to the benefit of the title conveyed to him by his father. lb. 203 DEFAMATION. 20* The grantor conveyed certain lands to the grantee, his heirs and assigns, and by a proviso at the concluding part of the deed declared " nevertheless, that the above L. shall have no right to sell, alien, or dispose in any way what- soever of the above-mentioned premises, but have only the use during his life-time, after which his children will have full right to the said property above mentioned :" — Held, on demurrer, that such proviso was repugnant to the grant and habendum, in fee, and therefore void. Lario v. Walker, 28 Chy. 216. By 18 Vict. c. 250, W. F. and his brother were authorized to sell certain entailed property in consideration of a non-redeemable rent repre- senting the value of the property. On the 7th September, 1860, W. F., the appellant, and E. F., assigned to their brother, A. F., a piece of land forming part of the above entailed property, in consideration of a rente fonci^re of six pounds, payable the first day of October of each year. The deed was registered and contained the fol- lowing stipulation ; ' ' But it is agreed that the assignee cannot alienate in any manner whatso- ever the said land, nor any part thereof, to any person without the express and written consent of the assignors under penalty of the nullity of the said deed." The property was subsequently seized by a judgment creditor of A. B'. , and ap- pellant opposed the sale and asked that the sei- zure be declared null, because the property seized could not be sold by reason of the above prohibi- tion to alienate : — Held, on appeal, affirming the judgment of the court below, that the deed was made in accordance with the provisions of 18 Vict. c. 250, and being a purely onerous title on its face, the prohibition to alienate contained in said deed was void. Art. 970 C. C. L. C. Quaere : Whether the substitutes may not, when the substitution opens, attack the deed for want of sufficient consideration. Fraser v. Pouliot, 4 S. 0. E. 515. See Wilson Y. Gilmer et al., 46 Q. B. 54, p. 234. 4. Under Short Forms Act. The operation of an ordinary deed of bargain and sale under the Short Forms Act, E. B. 0. c. 102, conveying lands to trustees considered and acted on. Seato\i v. Lunney, 27 Chy. 169. Short form of lease. See Emmett v, Quinn, 27 Chy. 420 ; 7 A. R. 306. See McKay v. McKay, 31 C. P. 1., p. 182. 7. Other Cases. The owner of land conveyed a I'ight of way over his land to the defendants in 1869, and the deed contained the following stipulation : ' ' The company to make and maintain a farm crossing, with gates at the present farm lanes, the fence at crossing to be returned as much as possible." K. the company's engineer treated for the con- veyance, but had no power to agree for a second crossing, though it was said he had promised if he should find a second crossing necessary he would, so far as in him lay, get it done, and the deed was executed upon this understand- ing :— Held, (reversing the decree of Proudfoot, V. C, 27 Chy. 95,) that the defendants could not be compelled to make a second crossing for use in winter ; and that, upon the construction of the words above set forth, they were bound to continue the crossing, not close it up or impair it or alter its character as a, farm crossing, but were not obliged to keep it free from snow. Proudfoot, V. C., dissenting. Cameron v. Wel- lington, Grey, and Bruce R. W. Co.. 28 Chy. 327. Per H.E. Taschereau and Gwynne, JJ., That a deed, taken under 9 Vict. c. 37, s. 17, before a notary (though not under the seal of the com- missioners) from a person in possession, which was subsequently confirmed by a judgment of ratification of a Superior Court, was a vaUd deed, that all rights of property were purged, and that if any of the auteurs of the petitioner failed to urge their rights on the moneys de- posited by reason of the customary dower, the ratification of the title was none the less valid> Chevrier v. The Queen, 4 S. C. E. 1. See Canada Permanent Loan and Savings Co. V. Taylor, 31 C. P. 41, p. 194. IV. Rectifting and Varying. Held, that the evidence set out in the report of this case shewed that the agreement of the- parties was that the plaintiff should have a deed with covenants merely, as distinguished from a quit claim deed, and that it was through the mistake of all the parties that the covenant as framed was entered into, and that the deed should be accordingly reformed by limiting the covenant to the grantor's own acts in the usual form. McKay v. McKay, 31 C. P. 1. A mortgage which had been executed by the- defendant I. , reciting that it had been agreed to be given to secure notes held by the plaintiffs, and containing covenants for title, was reformed, on parol evidence, by substituting for one of the parcels inserted by mistake, which did not belong to I., another lot proved to be his at the time of creating the mortgage ; and being the only other lot owned by him. Bani of Torotito V. Irwin, 28 Chy. 397. Such a mortgage is not voluntary or without consideration so as to exclude reformation. R. The plaintiffs sought a rectification of the de- scription of the premises covered by a mortgage to them, by including therein the water lots and dock property in front of the lots described in the mortgage. The plaintiffs relied on parol testi- mony, while the documentary evidence was all in favour of the defendant : — Held, affirming the decree of Spragge, C, 27 Chy. 68, that no case was made for a reformation of the mortgage. Dominion Loan Society v. Darling, 5 A. E. 576! See also Macdoncdd v. Worthington et al, 7 A. E. 531 ; 20 C. L. J. 67. DEFAMATION. I. Pkivileged Communications, 205. II. ArFECTiNG Persons in Trade oe Busi- ness, 206. III. Immorality and UtoiTNESs job So- ciety, 206. IV. Slander of Title, 206. 205 DEPAMaCION. 206 V. Pleading in Actions foe, 207. VI. Pakticttlabs, 207. VII. Apology, 207, I. Privileged Communications. Claim : That the defendant, an inspector of licenses, falsely and maliciously published of the plaintiff' a circular which he caused to be sent to all licensed victuallers, &c., in the riding, con- taining the following words: "W. E. (and others) are in the habit of drinking intoxicating liquors to excess, and you are hereby notifieij that you are not to sell, give, &c., intoxicating liquors to the said parties, or to the wife, hus- band, child, employee, agent, or any member of the family or household of the said parties." Defence : That the commissioners in good faith, intending to act within the scope of their powers, passed a resolution, " That no intoxicating h- quors shall, under any pretence, be sold in any tavern, &c. , to any person who has the habit of drinking intoxicating liquors to excess, or the wife, &c., of such person, or any person con- cerning whom notice had been given to the land- lord by the husband, &c., of such person, or any justice of the peace or inspector, that such per- son is in the habit of drinking," &c. ■- that the licenses were issued to the persons to whom the notices were addressed, subject to the right of suspending them for breach of the resolution. And the defendant justified upon information obtained respecting the plaintiff, upon which he followed the terms of the resolution : — Held, on demurrer, that the license commissioners had no power to pass the resolution, and therefore that the defence was bad, for the communication was not privileged, and the defendant's belief in the validity of the resolution could not create any privilege. Roberts v. Cllmie — Murphy v. Olimie, 46 Q. B. 264. The plaintiff was assistant in the shop of C, a druggist, over which the defendant and her hus- band, a physician, lived, the latter being C.'s landlord and customer. The defendant having in the presence of a witness accused the plaintiff of hating taken $4 from her trunk upstairs, her husband told C. that the plaintiff must be dis- charged, or he would send him no more prescrip- tions. A meeting was, however, arranged be- tween the parties in the presence of the witness, for the purpose, as they said, of an investigation. On this occasion the slanderous words were re- peated, and the plaintiff was discharged from O.'s employment : — Held, that what was said at this meeting was privileged, and the case having been left to the jury generally a verdict for the plaintiff was set aside. Hargreaves v. Sinclair, 1 O. R., Q. B. D. 260. those money letters, and I have concluded to sus- pend him. " The respondent, having brought an action for slander, was allowed to give evidence of the conversation between himself and appel- lant. There was no other evidence of malice. The jury found that appellant was not actuated by ill-feeling toward the respondent in making the observation to him, but found that he was so actuated in the communication he made to the assistant postmaster : — Held, on appeal, 1. That the appellant was in the due discharge of his duty and acting in accordance with his instructions, and that the words addressed to the assistant postmaster were privileged. 2. That the onus lay upon respondent to prove that the appellant acted under the influence of malicious feelings, and as the jury found that the appellant had not been actuated by ill-feeling, the respondent was not entitled to retain his verdict, and the rule for a non-suit should be made absolute. Dewe v. Waterhury, 6 S. C. R. 143. The appellant, D., having been appointed chief post office inspector for Canada, was engaged, un- der directions from the postmaster general, in making enquiries into certain irregularities which had been discovered at the St. John post office. After making enquiries, he had a conversation with the respondent, W., alone in a room in the post office, charging him with abstracting miss- ing letters, which respondent strongly denied. Thereupon the assistant postmaster was called in, and the appellant said : " I have charged Mr. W. with abstracting the letters . I have charged Mr. W. with the abstractions that have occurred from II. AiTECTiNG Persons in Trade or Business. A medical practitioner, registered in Great Bri- tain but not in this province, cannot maintain an action against a person slandering him in his pro- fession. See Shirving v. Ross, 31 0. P. 423. The defendant spoke of the plaintiff, a miller and grain buyer, that one of the big millers (meaning the plaintiff) had run away owing money to him and others : that he, the defen- dant, had come in to catch the plaintiff, but that he had gone or cleared out. At the trial a non- suit was entered, on the objection that the words were not shewn to have been used with reference to the plaintiff's business, and no special damage was proved : — Held, that the nonsuit was wrong, for the words used cast an imputation upon the solvency and financial standing of the plaintiff, and it was for the jury to say whether they were spoken in reference to his business, and calcu- lated to injure him therein. Lott v. Drun-y, 1 0. R., Q. B. O. 577. See Farmer v. Hamilton Tribune Printing and Publishing Co. et al., .3 0. R. 538, infra. III. Immorality and Unfitness for Society. To a statement of claim, charging the defen dants with the publishing of the plaintiff in their newspaper that he had seduced and betrayed one B. P. , and was a man unfit for the society of re- spectable people, &c. , whereby the plaintiff was injured in his credit, &c., the defendants pleaded that the article was published bona fide and with- out malice, and for the public benefit, and in the usual course of the defendants' duty as public journalists, and was a correct, fair, and honest report of proceedings of public interest and con- cern : — Held, on demurrer, bad, for the publica- tion complained of was in no sense for the public benefit, nor published in the course of defendants duty. Farmer v. Hamilton Tribune Printing and Publishing Co. et. al, 3 0. R., Q. B. D. 538. See Palmer v. Solm^s, 45 Q. B. 15, p. 207. IV. Slander of Title. See The Ontario Industrial Loan Jones, 4 0. R., Chy. D. 713. VIII. Pkeliminaky Examixation of Par- ties AND Witnesses. 1. Order. (a) Sei-vice of. Held, that service on the defendant's attorney at his home at 9.30 p.m. on Saturday of an order and appointment to examine the defendant at 2 p. m. on the following Tuesday, was irregular, the notice not being sufficient : — Held, that Rule of Court 135, applies to the service of orders and appointments to examine, and that this service must be treated as if made on the following Monday. Senn v. Hewitt, 8 P. E. 70^ Q. B. An appointment was made ex parte by the master at Ottawa, for the examination of the defendant at his office in Ottawa. A copy of the appoLQtmeut and of a subpoena were served on the defendant, who resided in Hull, P. Q. , and a copy of the appointment was served on the defendant's solicitor : — Held, that the proceed- ings were regular, and warranted by G. 0. Chy. 138, foUowing Moffatt v. Prentice, 6 P. R. 3'3i. and that consequently relief might be had on the defendant's failure to attend under G. 0. Chy. 144, and also that the appointment might be made ex parte. Semble, this mode of examina- tion, and that provided lEor by R. S. 0. c. 50, are not interfered with by the 0. J. Act, s. 52. Bank of British North America v. Eddy, 9 P. li. 396 Osier. (b) Attendance for Examination. A party out of the jurisdiction wiU be ordered to attend to be examined at that place within the jurisdiction where, in the opinion of the court it is most expedient that the examination should be held, and not necessarily that nearest to his place of abode. Smith v. Babcock 9 P. R. 97. — Proudfoot. See Bank of British North America v. Eddy,. 9 P. R 396, supra. 2. Re-Examination. A party having before judgment examined! another party to the cause adverse in interest. 'M7 EVIDENCE. 248 under R. S. 0. c. 50, s. 156, is not entitled to a re-examination of the same party except under the most special circumstances. Thorhum v. Brown, 8 P. R. 114.— Dalton Q. C. See Rogers v. Manning, 8 P. R. 2, p. 244. 3. Fees and Costs. Where am examination of parties pursuant to R. S. 0. c. 50, s. 161, takes place before a Deputy Clerk of the Crown, though not desig- nated in the order as acting inhis official capacity, the fees for such examination are payable in -Stamps, and not in money. Denmark v. Mc- ComffA?/, 8P. R. 136.— Osier. The parties in an action for breach of promise - of marriage not being competent or compellable witnesses for each other, the plaintiff was not allowed the costs of the preliminary examination ■of the defendant, under R. S. 0. c. 50, s. 156. But the plaintiff's costs of his own examination were allowed, as this took place at the instance of the defendant. Woodman v. Blair, 8 P. R. 179.— Dalton, Q. C. 4. Other Cases. Where an order to examine a party to a suit has been granted before the trial, such examina- tion cannot be had after the trial has taken place ; and it was so held where the verdict rendered at the trial was a nominal verdict only, subject to a reference to arbitration. Shelly v. Hussey, 8 P. R. 250.— Dalton, Q. C. Upon the examination of two defendants bef or a Master, he, at the request of their solicitorj, directed two other defendants present on behal' of the plaintiff, who was too ill to attend, to withdraw, but they refused. The Master there- Tipon declined to proceed with the examination : — Held, on appeal, that the Master should have allowed one defendant to be present on behalf of the plaintiff, if he was satisfied that this was re.quired for the proper representation of the plaintiff's interest, but by analogy to R. S. 0. o. .50, s. 260, he might require such defendant to be examined first, if he was to be called as a witness. Sivewright v. Sivewrighi et al, 8 P. R. 81. — Spragge. A defendant whose interest is identical with that of the plaintiff, is a party adverse in interest to his co-defendant, and may be examined by his co-defendant under G. 0. 138. When the plaintiff''s solicitor is present at such examination it may be read at the hearing against the plaiu- tifi'. The successful defendant will be allowed the costs of such examination. Moore v. Boyd, S P. R. 413.— Taylor, Master. The master in Chambers has power under Enle 285, 0. J. Act, to direct evidence to be taken at any stage of the proceedings in a cause. Ill this case a witness about to leave the country was examined before a special examiner, under a Chamber order, during a reference in the mas- ter's office, on which his evidence was to be used. Be Dunsford — Dunsford v. Dunsford, 9 P. R 172 — Dalton, Q. C. Rule 285, 0. J. Act, applies to examinations ior discovery before trial, and the examination of a defendant may be had under it before de- fence filed. An examination may be obtained under it at any stage of the cause and though no motion is pending. Fisken v. Chamberlain et al 9 P. R. 283.— Boyd. The bill alleged that the defendant assisted in the fraud by which the plaintiff was induced to convey certain land to her husband, the other de- fendant. H. answered the bill denying all charges of fraud, disclaiming all interest in the subject matter of the suit, and asking for her costs : — Held, that it was competent for the plain- tiff on cross-examining the defendant on her an- swer and disclaimer, to establish if possible the fraud out of her own mouth. McFarland v. Mc- Farland, 9 P. R. 73.— Boyd. An action having been brought in the Chancery Division to set aside a judgment as fraudulent the plaintiff took out an appointment for the ex- amination of the defendant after the deUvery of the statement of defence, but before the close of the pleadings : — Held, that the former Chancery practice must apply to actions in the Chancery Division in the case of examinations for discovery. Rule 219 O. J. Act refers to an existing practice which is not repealed by the Act. Davis v. Wickson, 9 P. R. 219.— Dalton, Master. If the issues between co-defendants are mate- rial to the case of the plaintiff or to the character of the relief which he seeks, he may examine a defendant upon them, though there is no issue between that defendant and himself. AlexaniiT V. Diamond et at, 9 P. R. 274. — Ferguson. Discovery by means of oral examination under R. S. 0. c. 50, s. 156, et seq., is limited to cases in which the party to be examined is compellable to give evidence by or on behalf of the opposite party. Jones v. Gallon, 9 P. R. 296. — Osier. Held, that the assistant or sub-editor of the defendants was an officer of the company exa- minable for the purpose of discovery under fi. S. 0. 0. 50, s. 156. Maitland v. Globe Printing Co., 9 P. R. 370.— Osier. Semble, that a person who has ceased to be an officer of a corporation cannot be examined for discovery under 42 Vict. c. 15, s. 7, and rule 227 0. J. Act, unless the matters in re- spect of which he is sought to be examined oc- curred while he was sucl( officer, lb. In an action of replevin a party was added as a defendant at the instance of the defendant, who claimed indemnity against him on the ground of a warranty. After issue the plaintiff obtained from the judge of the County Court of Lambton an order to examine the third party : — Held, that though on the face of the pleadings there was no direct issue between the plaintiff and third party, yet as the latter had all the rights of the defendant, and virtually took his place, the case was within the spirit, at all events, of role 224 0. J. Act, and that the examination should be allowed. Bradley v. Clarke, 9 P. R. 410.— Dalton, Master. — Cameron. IX. Inspection and Discoveby of Documents. 1. Order to Produce. In an administration suit, where certain crerdi- tors produced promissory notes as vouchers for 249 EVIDENCE. 250- nearly all their claim, the master, as of course, ordered production of the hooks and accounts. On appeal, Proudfoot, V. C. held (8 P. R. 86,) that in the first instance (no special cause for in- vestigating the account being made out,) the master should have accepted as suiEcient the offer of the creditors to allow an inspection of the books and accounts at their office: — Held, rever- sing this decision, that the executors were also entitled to an affidavit identifying the books and accounts as being all in their possession relating to the claim. Me Moss Estate, a A. R. S2. Orders to produce under G. 0. 134, are made for the purposes of the hearing only, and such orders wUl not be enforced for the purposes of a reference : — the proper course is an application to the master, to whom matters in dispute have been referred. Hilderbrom v. McDonald, 8 P. R. 389.— Stephens, Referee. Where a person of unsound mind sues by a next friend, the usual praecipe order that the plaintiff do produce is proper, and is sufficiently obeyed by the affidavit of the next frjend. Traviss v. Bell, 8 P. R. 550.— Boyd. The defendants had filed and delivered their statement of defence, but the pleadings had not been closed : — Held, that the plaintiff was en- titled to the praecipe order for production. Dale. V. Ball et al. 9. P. R. 106.— Proudfoot. 2. Withholding ore tjie ground of Privilege. In an action to restrain the infringement of a patent, in which the defence set up that the sup- posed invention had been previously patented in the United States and England, copies of Ameri- can patents material to the defendant's case, were procured by his solicitors of their own motion for the purposes of the action:— Held, that such docu- ments were privileged from production. The Chtelph 0. Co. v. Whitehead, 9 P. R. 509.— Dal- ton,. Master. In an action on a promissory note given by the defendant to the plaintiffs iu payment of a quan- tity of pads made by the plaintiffs, and said to ■possess curative properties when applied to the body, the defence was, that the note was obtained by fraud and that the pads purchased were use- less and possessed no healing properties. The defendant demanded production and discovery of the formula or recipe from which the pads were made, in order to shew that they were valueless, which the plaintiffs refused on the ground that no representation was made as to their ingredients, that the composition was a secret not patented, and that discovery would injure them in their business : — Held, that the defendant was not entitled to the discovery. Star Kidney Pad Co. et al. v. Greenwood, 3 0. R., Q. B. D. 280. As to offers between litigating parties made without prejudice. See The Corporation of the County of York v. The Toronto Gravel Road and Concrete Co., 3 O. E. 584, p. 260. 3. Otlier Cases. An action was brought upon the covenant con- tained in a chattel mortgage which covered goods in the United States, and which was not regis- tered in Ontario ; — Held, on an application for inspection of the mortgage, that the court had power, irrespective of the Common Law Proce- dure Act, to order inspection of the mortgage°in question, or of any document sued upon. Em- mens v. Middlemiss, 8 P. R. 320.— Dalton, Q. C. Semble — Per Spragge, C. J. 0. , and Patterson, J. A., although a party to a cause may be en- titled to call for the production of documents, in order to obtain discovery, it does not follow that the contents of such documents are in themselves evidence. The Canada Central Railway Co. v. McLaren, 8 A. R. 564. See Merchants' Bank v. Pierson, 8 P. R. 123,, p. 37. X. Evidence and Examination of Witnesses AT Trial. 1. Refusing to Answer. Plaintiff (respondent), a teller in a bank in New York, absconded with funds of the bank,,, and came to St. John, N.B., where he was ar- rested by defendant (appellant), a detective re- siding in Hahfax, N. S. , and imprisoned in the police station for several hours. No charge hav- ing been made against him he was released. While plaintiff was a prisoner at the police sta- tion, the defendant went to plaintiff's boarding house and saw his wife, read to her a telegr.im, and demanded and obtained from her money she had in her possession, telling her that it belonged to the bank and that her husband was in custo- dy. In an action for assault and false imprison- ment, and for money had and received, the de- fendant pleaded, inter alia, that the money had been fraudulently stolen by the plaintiff at the city of New York, from the bank, and was not the money of the plaintiff ; that defendant, as agent of the bank, received the money to and for the use of the bank, and paid it over to them. Several witnesses were examined, and the plain- tiff being examined as a witness on his own be- half did not, on cross-examination, answer cer- tain questions, relying, as he said, upon his counsel to advise him, and on being interrogated as to his belief that his so doing would tend to criminate him, he remained silent, and on being pressed he refused to answer whether he appre- hended serious consequences if he answered t'le question proposed. The learned judge then told the jury that there was no identification of the money, and directed them that, if they should be of opinion that the money was obtained by force or duress from plaintiff's wife, they should find for the plaintiff' :- ■ -Held (Henry J. dissenting), that the defendant was entitled to the oath of the party that he objected to answer because he believed his answering would tend to criminate him. Power v. Ellis, 6 S. C. R. 1. 2. Other Cases. Held, in this case, that it was unnecessary that the denial in the answer should be met by more than the plaintiff's own evidence, for the defendant had been examined, and had furuislied sufficient ground for discrediting himself. Mo- berhj v. Brooks, 27 Chy. 270. 251 EVIDENCE. 252 Per Wilson, C. J.— A party calling the oppo- site party as a- witness makes liim his witness to all intents and purposes. Dunbar v. Mttk, 32 C. P. 195. Per Wilson, C. J.— Where the materiality of certain enquiries is obvious, and is assumed at the trial, as e. g. in the present case with regard to the temperate habits or otherwise of the de- ceased, there is no need to submit it to the jury. Russell x. The. Canada Life Assurance Co., 32 C. P. 256. The defendants appeared by the same attorney, pleaded jointly by the same 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 thelplaintiffs witnessss, both counsel claimed the right to cross- examine the witness ; — Held (affirming the ruling of the judge at the trial), that the judge was right in allowing only one counsel to cross-ex- amine the witness. Walker v. McMillan, 6 S. C. R. 241. See also Macdonald v. Worthington, et al., 7 A.R. 531 ; Murray et al, v. Tlie Canada Central R.W. Co., 7 A. R. 646. XI. Judicial Opficial akd other Public Documents. 1. Judgments. (a) Proof of. In an action of damages for malicious arrest and imprisonment of plaintiff, under a capias, is- sued by a stipendiary magistrate in Nova Scotia, whose judgment, it was alleged, was reversed in appeal by the Supreme Court of JS'^ova Scotia, oral evidence — ' ' that the decision of the magis- trate was reversed," was deemed sufficient evi- dence by the judge at the trial of the determina- tion of the suit below : — Held, reversing the judg- ment of the Supreme Court of Nova Scotia, that such evidence was inadmissible, and was not pro- Ijer evidence of a final judgment of the Supreme Court of Nova Scotia. Ounn v. Cox, 3 S. C. R. 296. As to obtaining, judgment under rule 322 0. J. Act, in an action on a foreign judgment where the recovery of the foreign judgment has been put in issue by the pleadings. See Henehery v. lurner, 2 0. R. 284. 2. Other Documents. Held, that a notarial copy of an assignment in insolvency may be received as evidence of such a,ssigmnent under C. S. C. c. 80, s. 2. Prescott Election — McKtnzie v. Hamilton, 1 H. E. C. 1. Held, that the County Court judge's order to arrest was well proved, under R. S. 0. c. 62, s. ■28, by the production of a copy certified as such, under the hand of the clerk of the court ; but that the affidavit on which the capias issued, tiled in that court, was not duly proved by the production of a copy of the affidavit similarly ■certified, and with a seal attached, apparently that of the court, but not referred to or des- cribed in the certificate. Timmins v. Wright 45 Q. B. 246. Two partners in business (T. & R. O'Neill) ex- ecuted twomortgages infavourof J. W., W.assign- edthe mortgages to H.,by wayof derivative mort- gage, on the 21st March, 1877. In January, 1877, the O'Neills became insolvent, and the plaintiff, their assignee, filed a biU to redeem these mort- gages. After decree W. became insolvent, and the suit was revived in the name of P. & P., his assignees, in his stead. On the reference, H. claimed so much of the amount due on the ori- ginal mortgages as would satisfy his derivative mortgage, and P. claimed the remainder. Against their claims the plaintiff filed two similar sur- charges, one against H. and the other against P. & P. In support of his surcharges the plaintiff offered the following evidence: 1. A certified copy of the evidence taken in an action at law brouglit by the plaintiff against W. , in which he recover- ed judgment, in the spring of 1879, for a con- siderable sum as the unpaid purchase money for goods sold by the O'Neills to W. A certified copy of the judgment of the Court of Common Pleas a rule for a new trial, and an exemplifica- tion of the judgment roll. 2. A certified copy of the depositions of W. taken in this suit before the Master at Cobourg piior to the making of the decree : — Held, 1. That the evidence of the com- mon law action could not be read as against either H. or P. & P. , but that the evidence of W. himself might possibly be received against his assignees P. & P., as admissions made by him, and that the exemplification of the judgment might be used against his assignees to shew an indebted- ness from W. to the plaintiff as assignee of the O'NeiUs on a particular account. 2. That the de- positions of W. before the Master at Cobourg, like his answer to the suit, could be read against himself, and under the later authorities against H. also. Court v. Holland — ex parte Holland and Walsh, 8 P. R. 219.— Taylor, 3Iaster. Where a petitioner under the Quieting Titles Act claimed title through a vesting order made upon a sale under a decree in an administration suit : — Held, under Gunn v. Doble, 15 Chy. 665, that in the absence of proof to the contrary, the order should be assumed to regular, and that it was unnecessary to give evidence shewing title. Ee Morse, 8 P. R. 475.— Blake. After judgment, at the trial, but before the argument in banc, the defendants put in the report of a ease bearing upon the question, de- cided in the Supreme Court of the United States, verified by affidavit : — Held, admissible. Bice et al. V. Gunn et a?., 4 0. R, Q. B. D. 579. XII. Private Documents. 1. Ancieyit Documents. Held, that the production of an original mort- gage signed by D. , which was more than twenty years old, proved itself under R. S. 0. c. 109, s. 1, sub-s. 1, which makes such a document evi- dence of the truth of the recitals contained therein until shewn to be untrue ; and therefore it was evidence of the debt due thereunder, and could be used as such against the sons. Allan v. McTavish, 28 Chy. 539 ; 8 A. R. 440. 2. Telegrams. In an election trial the court ordered the agent of a telegraph company to produce all telegrams J 253 EVIDENCE. 254 sent by the respondent and his alleged agent ■during the election, reserving to the respondent the right to move the Court of Appeal on the point. South Oxford Election — Hophins v. Oliver^ 1 H. E. 0. 243. XIII. Parol Explanation oe Variation of DOCQMENTS. The defendant, after a note payable to the plaintifif had become due, 5,nd while it remained unpaid, endorsed upon it the following words : — ' ' I guarantee the payment of the within note to Messrs. T. D. & Co. (the plaintiflfs), on demand." The evidence shewed that the consideration for this guarantee was the giving of time to one C. , for whose debt to the plaintiff the note was given as collateral security : — Held, that the evidence that the giving of time to 0. was the considera- tion for the guarantee did not contradict the latter, though it was expressed to be "on de- maud ; " for these words referred to a demand upon the guarantor after forbearance to press 0. ; and that such forbearance was a good considera- tion. Davles v. Funston, 43 Q. B. 369. A mortgage on a vessel was executed to secure the purchase money and registered with the cus- toms, and annexed to it was an instrument of the same date under seal executed by the de- fendants reciting the mortgage, and that the terms of payment were set forth therein for con- venience of registry, and ' ' this indenture is ex- ecuted for the purpose of evidencing the true agreement between the parties which is herein- after stated." The terms of payment were then stated, differing from those in the registered mortgage ; and defendants covenanted to insure the vessel for §1,400 and assign the policy to plaintiff. The alleged warranty was verbal and was not made out at the time of executing the writings, but defendants swore that they would not have bought without the warranty, and would not otherwise have given over one-third of the price for a vessel which could not be in- sured .: — Held, that evidence of the verbal war- ranty was admissible ; that it did not vary or alter the writings ; and that the declaration that the instrument was made to evidence the true agreement referred merely to the terms of pay- ment. La Roche v. O'Hagan et al, 1 0. R, Q. B. D. 300. Parol evidence is inadmissible on a scrutiny to alter the value assessed against property in the assessment roll. South Grenville Mection — Ellis V. Eraser, 1 H. E. 0. 163. Where a contract was expressed to sell limits Nos. 1 and 3 for the sum of |15,500 ; also all the plant used in connection with the shanty now in operation on limit No. 1, included in the list made out last summer :— Held, sufficiently defi- nite to satisfy the Statute of Frauds, since the plant referred to therein could easily be identi- fied by parol evidence as being that specifically described in a certain writing which accompani- ed the above contract, and which was signed in the firm's name and by the purchaser, as also could the terms of credit to be allowed as to the payment of $15,500, and such parol evidence was admissible though the contract imported prima facie, &c., a down payment of the $15,500. Eeid V. Smith, 2 O. R., Ohy. D. 69. As to admissibility of parol evidence that the loan company and the insurers had in effecting an insurance on mortgaged property, only the interest of the mortgagees uuder consideration. See Howes v. The Dominion Fire and Marine Ins. Co., 2 0. R. 89 ; 8 A. R. 644. Rectification of policy of insurance on ground of mistake. See The JEtna Life Ins. Go. v. Brodie, 5 S. C. R. 1. The respondents sued the appellants for breach of contract to carry petroleum in covered cars from L. to H., alleging that they negligently car- ried the same upon open platform cars whereby the barrels in which the oil was were exposed to the sun and weather and were destroyed. At the trial a verbal contract between plaintiffs and defendants' agent at L. was proved that the de- fendants would carry the oil in covered cars with despatch. The oil was forwarded in open cars and delayed in different places and in consequence a large quantity was lost. On the shipment of the oil a receipt note was given which said noth- ing about covered cars and which stated that the goods were subject to conditions endorsed there- on, one of which was that the defendants would not be liable for leakage or delays and that the oil was carried at the owner's risk. Per Strong, Fournier, Henry, and Grwynne, JJ. The evidence was admissible to prove a verbal contract to carry in covered cars which contract the agent at L. was authorized to enter into and which must be incorporated with the writing so as to make the whole contract one for carriage in the covered cars and that non compliance with the provisions as to carriage in covered cars prevented the ap- pellants setting up the condition that ' ' oil was carried at the owner's risk," as exempting them from liability. The Grand Trunk R. W. Co. of Canada v. Fitzgerald et al,, 5 S. 0. R. 204. The plaintiff sued the defendant, a piano ma- ker, for a breach of a warranty given by his salesman on the sale of a piano, that the instru- ment was then sound and in good order. The plaintiff signed the ordinary receipt note, which is set out in the report, providing for payment of the price, and that until paid the property should remain in defendant, in which there was no mention of the warranty : — Held, that parol evidence of the warranty was admissible, as it was apparent that the receipt note was not in- tended to be the evidence of the whole contract. Quffire, whether this question should not have been left to the jury. McMullen v. WiUia/ms, 5 A. R. 518. Where certain shareholders of the Gr. L. Com- pany sought to restrain a call on stock, on the ground that it was being made in contravention of the terms of a certain unwritten agreement, alleged to have been entered into between all the promoters when the company was formed ; — Held, that evidence of said agreement was inad- missible, since it was contradictory of the written agreement entered into by the plaintiffs when subscribing for their shares, viz., to take stock and pay the calls when duly made. Christopher et at. V. Noxon et al„ 4 O. R., Ohy. D., 672. See Mills et al. v. Kerr et a?., 7 A. R. 767, p. 298. See also Cameron v. Wellington Orey and Bruce R. W. Co., 27 Ohy. 95; 28 Chy. 327. See, also, Deed IV., p. 204. 255 EVIDENCE. 256; XIV. Proof bt Secondary Evidence. 1. Lost Deeds. In ejectment it appeared that the lot in ques- tion had been granted in 1812, with other lots, to M. A. P., M., and P. In order to prove the alleged conveyance of the 13th February, 1816, by M. C. to "W., -which had been lost, the plain- tiff pnt in a memorial thereof, registered Decem- ber 19th, 1826, signed by the grantee, including an undivided moiety in all the land in the patent ■with other lands. It was shewn also that W., in 1827, had mortgaged all the lands in this me- morial with other lands, to a bank, which, in 1829, reconveyed them to the trustees under W.'s will : that in 1833, E. took a conveyance from the devisee of W. of three of the lots men- tioned in the memorial, not including the lot in question ; and that in 1834, proceedings were taken in partition on the petition of the devisee of W., under which this lot was assigned to W. Possession had been held of this lot, not in ac- cordance with the alleged lost deed, but by per- sons claiming under E. ; but the court held that the evidence failed to prove such possession for forty years, or that it was taken with the know- ledge of W. or his devisee. The plaintiff claim- ed under a deed from such devisee executed in 1873 :— Held, Cameron, J., dissenting, (1) That there was sufficient proof of the lost deed from M.C (2) That the plaintiffs claiming under W. were protected under C. S, U. 0. c. 88, s. 3, as against the possession of E., his co-tenant, for less than forty years. Van Ve.lsor et al. v. Hvijh- sov, 45 Q.B. 252. Affirmed in appeal, see 20 0. L. J. 11. 2. Other Cases. In an action for calls on stock where shares held by a defendant as executrix and in her own right were transferred under powers of attorney which were not produced : — Held, that there was sufficient evidence to shew the existence of such powers, and to let in secondary evidence thereof, the defendant and the testator having fully admitted their liability as owners of the shares. Provincial Ins. Co. \. Cameron, 31 C.P. 523. Where a sale of lands for taxes had taken place, and a suit was subsequently instituted by the purchaser to set aside a conveyance to the defendant executed after the registration of his own deed and the defendant impeached the deed executed in pursuance of such sale, it was shewn that a warrant had been at one time in the court house, a portion of which was destroyed by fire, and that on that occasion the warrant had been probably consumed : — Held, sufficient evidence to authorise the court in admitting secondary evidence of its contents. Ferguson v. Freeman, 27Chy. 211. A cheque of the plaintiff 's, when produced at the hearing, had written on it, "in full of all his (the defendant's) claims for notes or other- wise," and which words the plaintiff swore were on the cheque when sent to the defendant, which he denied, however. Four crosses were on the face of the cheque, and some initial letters in the margin, and these the plaintiff stated were the initials of a clerk in the bank, whom he had re- quested to initial the words so introduced : The- Court (Spragge, 0.,) refused to receive this as. evidence of a receipt in full, in the absence of the bank clerk, who should have been called as a witness. Livingston v. Wood, 27 Chy. 515. XV. Proof ajtek Notice to Produce. See Ockley et al. v. Masson et al. 6 0. R. 108^ p. 243. XVI. Proof by Entries. A loan and savings society appointed G. their treasurer ; and the plaintiffs and defendant by two separate bonds became sureties for the due discharge of the duties of such officer. 6. made default in his office, and a suit was instituted by the society against all the sureties, which was- compromised by the plaintiffs paying about one- half of the sum claimed by the society : — Held, that in such a case the entries of G. in the books of the society were not evidence against the sure- ties during the lifetime of G. Murray v. Gibson, 28 Chy. 12. The cases deciding that entries in the hooka of an officer are evidence in his lifetime against sure- ties questioned. See Victoria Mutual Fire Ins.. Co. V. Davidson, et al, 3 0. E., C. P. D. 378. In an action against sureties for a town col lector for his default in paying over the sum col- lected by him: — Held, that entries made by the collector on his roll, in the discharge of the duties, of his office, of taxes paid to him were evidence against the sureties. The Corporation of the Town of Welland v. Brown, 4 0. E,, C. P. D. 217. After the occurrence of the accident which caused the destruction of the plaintiffs lumber, B. an engine-driver of the defendants, and who- was in charge of the locomotive (No. 5) on the day the fire occurred, made an entry in what was termed the repairs book, kept in the defendants' shops : ' ' Bottom rim of bonnet in stack wants- making tight * * Screen wanted in front of ash pan. " At the trial B. was called as a witness- on the part of the plaintiff, and proved his hav- ing made such entry in the usual course of his- duties. Per Spragge, C. J. 0., and Hagarty, C. J. , such entry was properly produced and read to- the jury. Per Burton and Patterson, JJ.A., such entry or report was merely a narrative of a- past occurrence, or something in the opinion of B. requiring attention, and in any view could only be receivable as evidence against the com- pany, if at all, upon proof of B.'s death. Thf Canada Central H. W, Co. v. McLaren, 8 A. E. 564. Two partners in business (T. & R. O'NeiU) exe- cuted two mortgages in favour of J. W. W. , assign- ed the mortgages to H. , by way of derivative mort- gage, on the 21st March, 1877. In January, 1877, the O'Neills became insolvent, and the plaintiff, their assignee, filed a bill to redeem these mort- gages. After decree W. became insolvent, and the suit was revived in the name of P. & P., his assignees, in his stead. On the reference, H., claimed so much of the amount due on the original mortgages as would satisfy his derivative mort- gage, and P. claimed the remainder. Against their 257 EVIDENCE. 258 claims tlie plaintiff filed two similar surcharges, one against H. , and the other against P. & P. In support of his surcharges the plaintiff offered the following evidence : 1 the books of the firm of T. & R O'Neill; 2. the books of W. :— Held, that the books of T. & E. O'Neill, could not be used against either W.'s assignees or H. That the entries in the books of W. were evidence as ad- missions against hia assignees, and as to transac- tions before the 21st March, 1877, against If., to shew the state of the account at the date of the assignment. Court v. Holland — Ex parte Holland and Walsh, 8 P. R. 219.— Taylor, Mas- ter. iiig a conveyance as voluntary, even though the transaction took place prior to that enactment. Sanders v. ilalsburg, 10. R., Chy. D. 178. The power of a municipal council to close up a road under section 504 of the Municipal Act, whereby any one is excluded from access 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. Adams and The Corporation of the Township of Bast Whitby, 2 0. R., Q. B. D. 473. XVII. Evidence of REPUTATiotf. 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 neighbourhood would be concerned, evi- dence of reputation was admissible ; and under the circumstances set out in the report, it was Held that the square was sufficiently defined by such evidence. VanKoughnet v. Denison, 1 O.R. , Chy. D. 349. XVIII. Production and' Admission or Evidence. 1. Onus Probandi. When defendants in a redemption suit on proving their claim in the master's office pro- duced their mortgages and filed an affidavit verifying their claims, and stating that $20,309. - 88 was due them for moneys advanced by them to the mortgagor and secured by the said mort- gages : — Held, that their claim was prima facie proven, and the onus of reducing the amount rested with the plaintiff. Court v. Holland— Mc parte Dora-), 8 P. R. 213. Taylor, Master.— Blake. The plaintiffs held » mortgage made by the defendant, who covenanted to pay the mortgage money and interest. Defendant conveyed his equity of redemption to A., who subsequently released to the plaintiffs for a nominal consider- ation, after striving for a substantial one. The defendant, as part of the arrangement, gave the plaintiffs his note for some interest. The plain- tiffs having sued on the covenant for payment, the jury were directed that if the release a,nd note were taken by the plaintiffs in satisfaction of the liability on the covenant, to find for the defendant ; if taken under a stipulation that it should not have that effect, to find for the plain- tiffs ; and that in the absence of evidence upon these points the inference would be that it was taken in satisfaction of plaintiffs' claim, the charge being thereby merged. The jury found for the defendant :— Held, that there was no mis- direction, the onus of proving that there is no merger being upon the plaintiff in such a case ; and the verdict was sustained. Jforih of Scot- land Mortgage Go. v. Udell, 46 Q. B. 511. In actions against solicitors for negUgence. See O'Donohoe v. Whitty, 2 0. R. 424, p. 39. Re Kerr—Akers and Bull, 29 Chy. 188, p. 40. Semble, that R. S. 0. c. 109 s. 2 is retrospec- tive so as to cast the onus of disprovmg the pay- ment of the consideration on the party impeach- 17 Where the defendant, being sued on a pro- missory note, alleged that the said note was not duly stamped before the repeal of the Stamp Act, nor until after action brought, although he had communicated the fact of that omission to the plaintiffs before he was sued, and the plaintiffs denied that the defendant had so notified them, and alleged that they double-stamped the note as soon as they had knowledge of the omission to stamp, which was not till after the action brought, and after the repeal of the Stamp Act ; and the evidence shewed that when the note came to the plaintiffs' hands it appeared to be properly stamped : Held, that the defendant could not be allowed, upon his own unsupported testimony, in such a case, to escape liability. The onus was on him to establish that the stamp was not duly affixed, and that the omission to duly stamp was so intelligibly communicated to the plaintiffs that it could be said they acquired the knowledge of the defect at the time alleged by him. Bank of Ottawa v. McMorrow, 4 0. R. , Chy. D. 345. Defendants, Toronto merchants,engaged plain- tiffs, Chicago brokers, to buy and sell grain iu Chicago on margin, which the latter did, advanc- ing them money, for which they sued. Defendants having refused to settle for losses sustained : — Held, reversing the judgment of Patterson, J. A. , that, assuming the State law to be that if the contract was to deal in such a way that only the differences in prices should be settled according to the rise and fall of the market, and 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 given for the plaintiffs. Rice et al. v. Onnn et al. , 4 0. R., Q. B. D. 579. As to proving malice in an action of slander against a public officer. See Dewe v. Waterbury, 6 S. C. R. 143, p. 206. In a " debats de comptes" between A. G. (appel- lant) in his quality of tutor to M. L. H, C. R. , a minor, and Dame H. P. (respondent), universal legatee of her late husband L. R. , who had had possession of the minor's property (his grand- child) as tutor, the following items, viz., |5,466. 63 (for stock of goods sold by L. R. to his son) and $451.07, and $90.76, for "cash received at the counter," charged by the respondent in her account, were contested. In 1871, L. L. R. the minor's father, married one M. C. G., and by contract of marriage obtained from his father, L.R., two immovable properties, en avancement 259 EVIDENCE. 260 d'hoirie. At the same time L. R., the father, retired from business and left to L. L. R. , his son, the whole of his stock in trade, which was valued at $5,466.63, making an inventory thereof. L.L.R. died in 1872 leaving one child, said M. L. H. 0. E., and L. E., her grandfather, was appointed her tutor. There was no evidence that the stock in trade had been sold by the father and purchased by the son, or that the fath- er gave it to his son. However, when L. R., in his capacity of tutor to his grandchild, made an inventory of his son's succession, he charged his son with this amount of $5,466.63 : — Held (re- versing the judgment of the court below), that it was for the respondent to prove that there had been a sale of the stock in trade by L. R. to his son L. L. R,, the minor's father, and that there being no evidence of such a sale the respondent could not legally charge the minor with that amount. As to the other two items, these were granted to the respondent by the Court of Queen's Bench on the ground that, although they had been entered as cash received at the counter, there was evidence that they had been already entered in the ledger. The only evidence to support this fact was the affidavit of one Hebert, the bookkeeper of L. R. filed with the reddition de comptes before notary, prior to the institution of this action : — Held, reversing the judgment of the court below, that the affidavit of Hebert was inadmissible evidence, and therefore these two items could not be charged against the minor. Gagnon v. Prince, 7 S. C. R. 386. Special leave to appeal to Her Majesty in Counoirin this case was refused. See S. C, 8 App. Gas. 103. See Hegina v. Fee, 3 0. R. 107, p. 243 ; Morton v. Nihan, 5 A. R. 20, p. 63 ; Vinden v. Fraser, 28 Chy. 502 p. 304 ; Burke v. Taylor, 46 Q. B. 371, p. 282 ; Johnston v. Christie, 31 C. P. 358. 2. Relevancy. In an action against a railway company for loss occasioned by fire alleged to have arisen from one of their engines (No. 5), with a view of shewing that the engine was defectively constructed, evi- dence was given that on previous occasions when it was in the same or an improved condition, it had thrown out sparks causing fires. PerSpragge, 0. J. 0., and Hagarty, C. J., such evidence was properly receivable. The Canada Central M. W. Co. V. McLaren, 8 A. R. 564. 3. Other Cases. A former suit had been instituted by the jjlaintiff which had been dismissed, as tbe plain- tiff had not acquired the legal estate until after the bill was filed :— Held, that under such cir- cumstances the question was not res judicata, and (2) 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. Ad- amson v. Adamson, 28 Chy. 221. As to a note insufficiently stamped being ad- missible as evidence of a debt. See CauqUll v Clarice, 3 0. R. 269, p. 74. Where the right of a company to use a traction engine on certain highways under an agreement wtih a municipal corporation was disputed •— Held, that the fact that the company for several ' years after the siid agreement used horse power only, was not to be overlooked as evidencing the true agreement of the parties. Th^ Corporatinn of the County of York v. The Toronto Oravd Road and Concrete Co., 3 0. E., Ohy. D. 584. Overtures of pacification, and any other offers or propositions between litigating parties, ex- pressly or impliedly, made " without prejudice,' are iiTadmissible in evidence on grounds of public policy, although the pendency of such negotia- tions as a matter of fact may be looked at. lb. As to admissibility of solicitors' correspondence and requisitions of title in an action for specific performance. See McClung v. McCracken, et m, 3 0. R. 596. XIX. Contradictory Evidence. One C. entered into agreements with several parties to carry freights for them at certain named prices to be paid to the defendant— not mentioning any particular vessels in which tlie same were to be carried — and then agreed with the defendant, as part owner and master of vessels in which the plaintiffs had an interest, at rates considerably below the sums agreed upon. The defendant and C. both swore that the arrange- ment had not been made by C. as agent of the defendant, but for his own benefit : — Held, that the fact of the defendant having rendered an ac- count in his own name and also sued for a portion of the freight, though aided by the other circum- stances mentioned in the judgment, was not suffi- cient to countervail the positive denials of the de- fendant and C, that the contracts had not been made in behalf of and as agent for the defendant, freight being prima facie paj able to the master of a vessel, and the cargo need not be delivered by him until the freight thereof is paid ; although in any other transaction such conduct would have been strong evidence that the defendant was the principal contractor. Merchants' Bank v. Graham, 27 Chy. 524. See also Mitchell v. Strathy, 28 Chy. 80. XX. Corroborative Evidence. K. had assigned the moneys due to him by S, : — Held, that K., who was a witness, was not "an opposite or interested party to the suit," within the meaning of the Evidence Act, R. S. 0. 0. 62, s. 10, and his evidence therefore did not re- quire corroboration as against the executors of S. Watson v. Severn et al, 6 A. R. 559. Held, that under sec. 10 of the Evidence Act, . R. S. 0. 62, any evidence adduced by a party interested against an executrix corroborating the evidence of the interested party in any particular, must be submitted to the jury, as sufficient in point of law, the weight to be attached to it in point of fact being a matter for their considera- tion. Orr V. Orr, 21 Ohy. 397, and McDonald 1). McKmnon, 26 Ohy. 12, commented upon. Par- ker V. Parker, 32 0. P. 113. In this case, which was an action on the com- mon counts against the defendant as executrix, &o., for money paid to the use of the defendant's testator, the transaction arose out of some pro- 261 EXCHEQUER COURT. 262 missory notes made by the testator and the plaintiff, but which the plaintiff alleged he signed for the testator's accommodation, and had sub- sequently paid for the testator :— Held, on the evidence, set out in the report, that the plaintiff's evidence was sufBcieutly corroborated within the meaning of the Act : and that the count for mone^paid was supported. lb. The widow of the intestate claimed against his estate a sum of |700, which she alleged he had borrowed from her after her marriage, and about ten years before his death, for the purpose of buying a stock in trade. The money was de- posited in a bank at the time of the marriage, which took place before the C. S. U. 0. c. 73. Evidence was given in corroboration of the claim- ant to the effect that —"He (Laws) told me he had got $600 or $700 from his wife. She had got a little money. He said he had paid that money for the things he had in the store. This was iifter he had bought L. out. * * He said his wife had helped him to |600 or $700. * * I understood he had used the money to buy out the business :" — Held, affirming the order of the chancellor, reversing the finding of the master at Hamilton, that she could not recover. Per Spragge, C, and Blake, V. C. The evidence of the widow was not sufficiently corroborated. Per Proudfoot, V. C. The evidence that the chose in action was originally hers, and that she gave it to her husband, was corroborated, and this <;orroboration was sufficient to support her own evidence that it was a loan ; but the C. S. U. C, c. 73, gave her the right to assert her proprietor- ship as against her husband, and as incident 'thereto the right to bring a suit against him ; to which proceedings however the Statute of Limi- tations was a bar, and therefore her remedy was gone. Re Laws — Laws v. Laws, 28 Chy. 382. The testator, father of the plaintiff's wife, suggested to him to purchase a lot of land which was subject to a mortgage, saying that if he would do so, and have the property conveyed to his (plaintiff's) wife, he would pay off the incum- br.mce. The plaintiff in consequence made the purchase, and had the property conveyed as suggested, but the testator refused to pay the instalments on the mortgage and the plaintiff was compelled to pay it himself. The testator subsequently expressed his regret at having thus acted, and promised the plaintiff that he would do better for them ; that he would pay plaintiff 1150 a year for ten years, and bequeath to his wife $1,000. By the will, however, only $100 was left to her, and the plaintiff instituted the present suit against the representative of his father-in-law to enforce such second agreement, -or for payment of damages by reason of the breach thereof. The only direct evidence was that of the plaintiff. At the hearing there were produced two receipts signed by the daughter for $260 and $200, respectively, expressed to be on account of money left her by her father's will ; and witnesses swore that the testator had told them that he had agreed to pay for the place if the plaintiff would take out the deed in his wife's name, and that he was making the payments as the plaintiff had so taken the deed : — Held, that there was sufficient corroboration ■of the evidence of the plaintiff as required by the statute (R. S. 0. c. 62). Halkran v. Moon, 28 €hy. 319. When each item in an account against the es- tate of a deceased person is an independent trans- action, and constitutes a separate and indepen- dent cause of action, to satisfy the statute R. S. 0. c. 62, s. 10, some essential corroboration of the interested party's evidence must be adduced as to each item. OookY. Grant, 32 0. P. 511 Re Ross, 29 Ohy. 385. The plaintiff claimed to recover against the de fendant as administrator of his deceased brother, W. G. , two sums, one of $800, which she alleged W. Gr. received for her from another brother, S. G-., also deceased ; and the other of |1,500, which she alleged W. G. promised to leave her in consideration of her remaining with him, tak- ing care of and managing his house, as long as he lived. As to the $800, the plaintiff's evidence was held to be sufficiently corroborated by the evidence, set out in the report, within the mean- ing of the statute, but otherwise as to the .f 1,500. Cook V. Grant, 32 0. P. 511. See McKay V. McKay, 31 C.P. 1, p. 183 ; Mor- ton V. Nilian, 5 A.R. 20 p. 63. See also Re Mur- ray— Purdom V. Murray, 29 Chy. 443 ; Watson V. Bradshaw et al., 6 A. R. 666. XXI. ExpBBT Evidence. The parties desired the assistance of scientific evidence as to the height of the defendant's dam and the effect of raising it. The court (Proud- foot, J.) appointed an engineer to inspect and report thereon, reserving the costs until his report should be obtained. Hawkins v. Mahaffy, 29 Chy. 326. Remarks upon the impropriety of receiving the opinions of surveyors as experts as to ttie proper mode of making a survey under a Statute. See Corporation of Stafford v. Bell, 6 A. R. 273. Where the opinions of experts on foreign law are conflicting, the Court will examine for itself the decisions and text books of the foreign country, in order to arrive at a satisfactory con- clusion. Rice et al. v. Gunn, et al., 4 0. R., Q. B. D. 579. As to costs incurred for expenses of surveys and other special work of that nature in order to qualify surveyors to give evidence. See Mc- Gannon v. Clarke, 9 P. R. 555. See also Mober v. Snarr. 45 Q. B. 428. EXAMINATION OF JUDGMENT DEBTORS. To Attach Debts — See Attachment of Debts. EXCHEQUER COURT. See Petition of Right. Semble, per Strong, J., there is nothing in sec. 63 of the Supreme and Exchequer Court Act con fining appeals from the Exchequer Court to a recourse against final judgments only, the word used being "decision," which is applicable as well to rules and orders not final as to final deci- sions. Dan^ou v. Marquis, 3 S. 0. R. 251. 263 EXECUTION. %i Application for security for costs. See Wood . The Queen, 7 S. 0. K. 631, p. 155. I. .11 III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. EXECUTION. Immediate Execution, 263. Time of Issuing, 263. EiEEi Facias (Goods). 1. Wliat amounts to a, Seizure, 264. 2. Time of Operation, 264. 3. Property liable to Seizure, 264. Fieri Facias (Lands). 1. Property liable to Seizu/re, 264. Sale oe Land undee Execution, 265. Venditioni Exponas, 265. Equitable Execution, 265. Renewing Writ, 266. Abandonment, 266. Priority oe Executions, 266. Setting Aside Execution, 266. Other Writs oe Execution. 1. Ca. Sa. — See Capias ad Satisea- CIENDDM. 2. Division Cotirt Executions. See Divi- sion Courts. 3. Sequestration — See Sequestration. Interpleader Proceedings — See In- terpleader. Landlord's Claim eor Eent — See She- rife. Sheriff's Duty and Liability — See Sheriff. Poundage — See Sheriff. I. Immediate Execution. Where it appears the defendant has no defence, and has made, or is intending to make a fraudu- lent disposition of his property, or is so dealing ■with it as to embarrass the plaintiff in reaching it by execution, the court will, on motion, under rule 324, upon a proper case being made, order judgment and immediate execution. In the event of other executions being obtained against the debtor's property before the time at which the plaintiff would be entitled to issue executions as on a judgment in defaiilt of appearance, and the amount realized being insufficient to satisfy all parties, a ratable division should be made. Kin- loch V. Morton, 9 P. R. 38.— Osier. 11. Time of Issuing. An execution issued on the same day that a judgment on default of appearance, contrary to Order 9, F ule 4, is signed, is an irregularity only, and not a nullity. Macdonald, et al. v. Crombie, et al, 2 O. R., Q. B. D. 243. As to the time of issuing execution against Mutual Insurance Companies. See Lowsoii v. Canada Farmer's Mutual Ins. Co., 8 A. E. 613. III. Fieri Facias (Goods). ' 1. What amounts to a Seizure. As to what constitutes a valid seizure under a condition in a policy of insurance providing that if the insured property should be levied upon or taken into possession or custody under any legal process the policy should cease to be bmding. See May v. The Standard Fire Ins. Co., 5 A R 605. 2. Time of Operation. A sheriff received two executions against on^ M.'s goods, on the 18th January, and 15th Feb- ruary, respectively. He made a formal seizure on the delivery of the first writ, but left no one- in possession, and the execution debtor remained in possession, and carried on his business as be- fore the seizure. There had been a stay on this writ by the solicitor for the execution creditor, but on the delivery of the second writ the sheriff was directed to proceed on both. On the 6th March, the goods, consisting of the whole of the execution debtor's stock in trade, were sold by the execution debtor to the plaintiffs, who re- moved them to their own place of business.. "Oa 22nd March, the sheriff seized all the goods thea in the plaintiffs' possession, which he had receiv- ed from the execution debtor, as also certain goods of the plaintiffs which he claimed to take in lieu of goods received from the execntion debtor and sold by plaintiffs. The sale to the- plaintiffs was found to be bona fide, and for va- lue, and without notice of the executions. In replevin for the goods : — Held, Wilson, C. J., dissenting, that the sheriff was entitled to the goods' of the execution debtor then in plaintiffs' possession ; but not to the goods taken by the sheriff in lieu of those sold by the plaintiffs : that there was no abandonment of the executions, nor any such conduct on the part of the sheriff or the execution creditor as to estop them from asserting that the executions were in force. On the sheriff making his seizure on the 22nd March, the plaintiff gave him an undertaking to answer for all goods sold by him thereafter, if the she- riff should be held entitled to the goods :— Heli under a counter-claim setting up this undertak- ing the sheriff was entitled to recover the value- of the goods sold by the plaintiffs after the 22ii(l March, and before the issue of the writ of reple- vin. Patterson et al v. McKellar, 4 0. R., C. P. D.407. 3. Property liable to Seizure. See Oliver v. Newhouse, 32 0. P. 90 ; 8 A. E.. 122 IV. Fieri Facias (Lands.) 1. Property liable to Seizure. Execution against husband and wife.— Sepa- rate Estate. — Tenancy by entireties. See fl)'i^»' V. Patterson et iix, 45 Q. B. 536. Four persons joined in exeoutiag a mortgage of their joint estate, and subsequently the in- terest of three of them was sold under execu- tions at law : — Held, that the sale was inoper- ative ; that the owner of the equity of redeinp- 265 EXECUTORS AND ADMINISTRATORS. 265 tion had a right to redeem ; and that the pur- chaser at the sheriff's sale, who was also the mortgagee, having gone iuto possession of the mortgage estate, was bound to account for the rentsandprofitSj^-omiv.C%am6erZ!K,27Ch^551j w here^T assigned a mortg^e to M.^o secure payment of two notes of less amount than the mortgage debt, and M. having procured an as- signment to himself of a, judgment against R., the sheriff, pursuant to writs issued unde: the said judgment, seized the mortgage so assigned, and M. refused to execute a re-assignment there- -of to R. , until not only the amount due on the notes, but also the balance due under the mort- gage was paid : — Held, that R. was entitled to a re-assignment on payment of what was due on "the notes only, for the plaintiflf,s interest in the mortgage was not properly exigible by the sherift' imder R. S. 0. c. 66. Rossu. Simpson, 23 Chy'. -552,, distinguished. Sumohr v. Marx, 3 0. R., ebts due to them by the Testator. Where the estate of a deceased person is insol- vent, the provisions of the Act respecting trus- tees displace any right on the part of the executor to retain in full ; and as against an executor claim- ing as creditor, any other creditor may set up the Statute of Limitations. Ee Boss, 29 Chy. 385. 3. Other Cases. About 1837 Andrew McMinn devised his knds- to his wife, Mary McMinn, for life, with remain- der to Maria Kearney. Letters of administration : with the will annexed were granted to the widow. At the time of the testator's death the lands wer^ mortgaged for £150. A suit to foreclose this mortgage was instituted after the testator's death, and it was alleged that under it a fore- closure was obtained, and the property sold, and. purchased by the administratrix for £905. There was evidence that the administratrix received personal assets of the testator suflBcient to pay off the mortgage, had she chosen so to apply them. The sum of £725 was lent to the admin- istratrix by Ann Kean, her daughter by a former marriage. The administratrix then sold the pro- perty to the public authorities for £1,750, out of which she paid her daughter £400. From 1858the daughter, with the leave of the administratrix, occupied about one-quarter of an acre of the land, until, in 1873, under the authority of an expro- priation Act, she was ejected from it, the commis- sioner taking in all three acres and three tenths of this property, the balance being in the occupa- tion of Maria Kearney and her husband, Francis Kearney (the appellants. ) These three acres :md three tenths were appraised at |2,310, and that sum was paid into court to abide a decision as to the legal or equitable rights of the parties respectively. Ann Kean claimed a title to the whole of the land taken, under an alleged parol agreement with her mother, that she should have the land in satisfaction of £325, the residue uu- pai(} of the loan of £725, and obtained a rule nisi for the payment to her of the sum of $2,310r the amount awarded as compensation for the land. In May, 1872, the administratrix exe- cuted an informal instrument under seal, pur- porting to be a lease of her life estate to the ap- pellants in the whole property, reserving a rental of 180 a year and liberty to occupy two rooms in a dwelling house then occupied by her. On a motion to make this rule absolute, several am- 269 EXECUTORS AND ADMINISTRATORS. 270 davite were filed, including those of the appel- lants. On the 18th January, 1875, the matter was referred to a master, to take evidence and report thereon, subject to such report being modified by the court or a judge. The master reported that the appellants had the sole legal and equitable rights in the property. On motion to confirm that report, the court made an order apportioning the §2,310 between Ann Kean and the appellants, the former being declared entitled to be paid $1, 015. 61, and the latter, on filing the written consent of Mi-s. McMinn, the residue of the $2, 3 1 : — Held, on appeal, that the administra- trix, having personal assets of the testator suffi- cient to discharge the mortgage, was bound in the due course of her administration to discharge said incumbrance, and that the parol agreement made by her with her daughter was null and void. Kearney v. Kean, 3 S. C. K. 332. Where a testator devised to his wife for life a parcel of land "with the power of sale at any time during her life subject to the consent of my exe- cutors." Three executors were appointed by the will, one of whom died. A contract for sale of pirt of the land having been entered into, it was objected by the purchaser that the consent of the two surviving executors was not suflScient : — Held, that in the conflicting state of the authori- ties upon the question the title was not one which the court could force upon a purchaser. r.e McXabb, 1 0. K, Chy. D. 94 III. Liabilities. 1 I'or Acts of each other. J. B. , sr., and S. D., of Montreal, had been executors of C. B., who died in Montreal about 1844. S. D. proved the will in Ontario. The plaintiffs (two infants) were solely entitled un- der tkis wiU. J. B., sr., died in Montreal in 1869. T. B. and J. B. , jr., were his executors, and both proved the will in Ontario, but T. B. alone acted aa executor, J. B. , jr. , having given him a power of attorney to act for him in all matters relating to the estate. The plain tifl's and T. B. and J . B. jr. , were each entitled to a one-third share under the wiU of J. B. , sr. A suit was brought for the administration of both estates, and a receiver appointed. In taking the accounts before the master 8. D. 's attendance was dispensed with, as it appeared that none of the assets of C. B.'s estate in Ontario had come to his hands. The master found T. B. and J. B. , jr. , who did not appear or file any accounts, indebted to the estates in about $51,000. In default of evidence to shew that ■ any of the assets come to their hands formed part of C. B.'s estate, the master further found that the whole formed part of J. B., sr.'s, estate. The decree ordered the executors to distinguish the assets of each estate, and notified them that in default the whole would be taken to belong to the estate of J. B., sr. T. B. having died, the suit was revived. J. B., jr., applied to the court for leave to open and retake the accounts, on the ground that he had been kept in ignorance of the proceedings by his co-executors. Leave was given him to surcharge and falsify. J. B., jr., now distinguished the assets of the two estates, and sought to be relieved from liabihty as to the estate of 0. B. , on the ground that he was not executor of that estate: as to the J. B,, sr., estate, he also sought to be relieved in several respects. The Master's judgment is upon these points: — Held, thatT. B., and J . B., jr., did not, by proving the will of J. B., sr., become execu- tors of C. B., as J. B. , sr., was not the sole or surviving executor of C. B. : Held, that J. B., jr., was liable for the moneys of J. B., sr.'s, estate, come to the hands of Thomas, whether before or after the proving of the will, or before or after the power of attorney : Held, that the writ of attachment or registration issued in Que- bec did not affect the assets in Ontario : Held, that as the Ontario Bank shares, though sub- scribed for at Montreal.and at one time registered there, were transferred to Bowmanville during the testator's life, and appeared in the stock re- gister there onlj% they are Ontario assets. Bloom- field V. Brooke, 8 P. R. 266.— Tajdor, Master. H. & C. were appointed executors. H. took upon himself the actual management of the estate with the knowledge and consent of, but not under any express agreement with 0. H. applied a sum of money to his own use, but of this C. was not aware. The will contained the usual indemnity clause exonerating each from liability for the other ; — Held, that 0. was not liable for the sum appropriated by H. King v. Hillon, 29 Chy. 381. 2 For Interest. Held, that the executors, in this case, should be charged with interest upon the residue in their hands after the time when it was distribut- able and the annual rate of interest charged accordingly upon it from the time when it might properly have been distributed, or appropriated, down to the time of its actual payment, or if not yet paid down to the present time. Boys' Home of the City of Hamilton v. Lewis et al., 4 0. K., Chy. D. 18. See McOardle v. Moore et al., 2 0. E,. 229, p. 274. V. Actions and Peoceedikgs Against. The Eeferee in Chambers has no jurisdiction to make an order for payment into court by an executor or administrator of amounts admitted by him to be in his hands. Be Cnrry — Wright v. Curry — Curry v. Curry, 8 P. R. 340. — Stephens, Referee. An agreement to make a will in favour of au adopted child may be enforced against the per- sonal representatives of the obligor. See Roberts V. Hall, 1 0. K. 388. The master has authority to take the account with rests, under the ordinary reference, as against an executor, but where he declines to charge the executor in this way, if it is intended to appeal, he should be required to report the facts to enable the court to determine on the propriety of his decision. Quaere, whether it is not the more proper course to bring the matter up on further directions with all the materials for consideration spread out on the report, rather than to appeal in such a case. Sievewriyht et al. V. Leys, 1 0. E,., Chy. D. 375. G. having dissolved partnership with M., by the terms of the dissolution held certain land subject to a lien of $525, to be paid by M. M. 271 EXECUTORS AND ADMINISTRATORS. ■m then arranged a sale to C. for $2,250, intending to defraud any company who would lend |1,125, on the security of the laud (it being really worth about $600), and drew up a receipt for $1,150, representing that sum as being part payment of the consideration money, which G. signed. G. subsequently executed a conveyance with $2,250 inserted as the consideration, and deposited it with his solicitor as an escrow, to be delivered ■up on payment of his $525 lien. It appeared G. had since died, and S. was appointed his ad- ministrator. M. and C. by means of an over- valuation and certain misrepresentations, one of which was the production of G.'s receipt, ob- tained a loan of $1,125 from the plaintiffs to C, and out of the proceeds paid S. the $525, and took up the deed. At the trial it was shewn that the plaintiffs were aware of the death of G. before they acted on or even knew of the exist- ence of his receipt, and that S. knew nothing of the transaction except that he was entitled to the lien for $525 : — Held (reversing the judgment of Proudfoot, J.), that the plaintiffs could. not recover against S. as representative of G. , for no cause of action existed against G. at the time of his death, and S. had done no wrong. In the absence of fiduciary relationship no recovery can be had against the representatives of a deceased person who is charged with fraud unless profit has accrued to the wrongdoer's estate. Hamil- ton Provident & Loan Society v. Cornell, 4 0. R., Chy. D. 623. See also Davidson v. Oliver, 29 Chy. 4,33. VII. Demoibnct of Assets. The R. S. 0. c. 107, s. 30, which enacts that on the administration of the estate of a deceased per- son, in case of a deficiency of assets, all debts shall be paid pari passu, not only abolishes privi- lege among creditors, but places them in the same position with respect to each other as legatees ; and a creditor receiving payment in full, either in an action against the executor or by the volun- tary act of the latter, must refund the excess above his proportionate share at the instance of other creditors. A secured creditor need not bring his security into hotchpot as a condition precedent to ranking on the estate, his lien being expressly preserved by the Act . Chamberlen v. Clark et al. 135. 1 0. R., Chy. D. ; affirmed on appeal, 9 A. R. 273. VIII. Lands as Assets. The land of a testator or intestate is liable to be sold only for his debt, and where it is shewn that the judgment was not in fact recovered in respect of such a debt, but that the execution creditors never were creditors of the deceased, a sale of the land under it cannot be supported. Freed v Orr et al., 6 A. R. 690. IX. Executor de son Toet. See Be Colton — Fisher v. Colton, 8 P. R. 542 p. 272, X. Administbation Suits. 1. Application for. An administration order was granted by the master at Chatham under G. 0. 638, while a suit was pending for the construction of the will of the testator, in which administration was asked and in which the executors were charged with misconduct, and before a year had elapsed since the death of the testator upon appeal proceed- ings before the master were stayed, and special directions given as to the administration as set forth in the order on appeal. Hey wood v, Sive- Wright et al, 8 P. R. 79. — Spragge. A creditor of an intestate served notice of mo- tion for an administration order under G.O. 638, on D.'s widow and administratrix. The widow then served a similar notice upon the heirs of her husband, and filed affidavits alleging a defi- ciency of the personalty to pay debts : that cre- ditors were suing, and also filed a consent of ttie adult heirs to an order in her favour. The mas- ter at Chatham' granted an administration order to the widow, and, on appeal, Proudfoot, V. (.,'., held that he was right. Re Draggon — Draggon V. Draggon ; Re Draggon — Abellv. Draggon, 8 P. R. 330. When a claim against a deceased's estate is one arising out of a contract of suretyship, the court will not, unless by consent of all parties, make an administration decree except on a bill filed. Semble, that administration of an estate will not be ordered by the court where no legal personal representative has been appointed or dispensed with, though an executrix de son tort is before the court. Re Colton — Fisher v. CoUon, 8 P. R. 542.— Proudfoot. An order may be obtained under the general orders for the administration of the personal es- tate of the testator by the personal representa- tive of a legatee as well as by the legatee him- self. Simpson v. Home, 28 Chy. 1. An administration of an estate in which in- fants were interested, was made on the mere suggestion of their next friend that it would be for their benefit, without going into the merits of the case between the plaintiff and the defend- ant, the executor. Re Wilson — Lhyd v. Tidi- borne, 9 P. R, 89. —Proudfoot. An order for the administration of an estate of a deceased person was refused, on the ground that 12 months had not elapsed from the death of the deceased, no special circumstances being shewn. Grant v. Grant, 9 P. R. 211.— Boyd. In an administration matter under G. 0. Chy. 648-649, the plaintiff claimed to be a creditor of the estate, by reason of the support and mainte- nance by him of the testator's wife (in England) during the testator's lifetime : —Held, that the plaintiff's claim should be supported by viva voce evidence, and an action was directed to be entered. Groom v. Darlington, 9 P. R. 298.— Boyd. 2. Pleading and Practice. Held, that the jurisdiction of local masters in administration suits, under G. 0. Chy. 638, is not interfered with by Rule 422, 0. J. Act, the practice in such matters is preserved intact by Rule 3, 0. J. Act. In such matters there is power to direct service to be made out of the jurisdiction. Re Allan — Pocock v. Allan, 9 P. R. 277.— FuU Court. 273 EXECUTORS AND ADMINISTRATORS. 27^i The plaintifl was an executor as well as a creditor, and was charged with wilful default : — Held, that enquiry as to such default could be made under the order of reference (Form No 171, 0. J. Act. lb. The principal and surety being here the plain- tiff and defendant respectively. Be Collins, 8 P. K. 543, which decides that in a case of principal and surety a summary application to administer under G. 0. Chy. ■eSS is improper, was held not to apply. lb. An application 'to consolidate two motions for admmistration and partition pending before a lo:;al master should be made to him and not to a judge in Chambers. Lambkr v. Lambier. 9 P. H. 422.— Boyd. Under an administration order granted by a local master pursuant to G. 0. Chy. 638^39, he m ly investigate questions of wilful default, and misconduct, and if he refuses, the plaintiff should appeal If an action is commenced the extra •costs must be borne by the plaintiff. When the misconduct is such as would entitle a plaintiff at the outset to apply for an injunction or a receiver, an action should be brought. Sullivan v. Hartu, 9 P. R. 500.- Boyd. Parties to suit. See Webster, et al. v. Leys, ft al, 28 Chy. 471 ; Hughes v. Huglies, 6 A. E. 373 ; SievewrigJU v. Leys, 28 Chy. 498. See, also. Be Iio.^s, 5 A. U. 82, 8 P. R. 86 ; Hopper V. Harrison, 28 Chy. 22 ; Oaughan v. £hur/je, 6 A. R. 417. 3. Costs and Commission. Where in an administration suit property sold subject to a mortgage: — Held, that the commission in lieu of costs should be upon the amount real- ized by the sale — that is, upon the actual value of the interest of the intestate in the property in ■question, not upon the whole purchase money. He McColl—McCoU v. McColl, 8 P. R. 480.— Blake. Where one of several persons beneficially in- terested under the will of a testator, without mak- ing proper inquiries into the conduct and dealings with the estate by the executors, instituted pro- •ceedings against them, and groundlessly charged them with misconduct, causing thereby unnecesc sary costs and trouble, the court being satisfied with the conduct of the executors, refused to take the further administration and winding up of the estate out of their hands ; and it being shewn that all the other persons interested in the estate were satisfied with the conduct of the executors, or- dered the plaintiff to pay the costs of the suit. Rosebatch v. Parry, 27 Chy. 193. Executors may be deprived of their costs where they have improperly managed the affairs of the estate, though not guilty of any wilful miscon- duct ; and this rule was acted on where the per- sonal representative of one of the executorsjwas a party to the suit, though he had not acted in the management of the estate ; his testator's estate being ample. Kennedy v. Pingle, 27 Chy. 305. A testator gave to each of his executors a sum of $40 " in remuneration for their trouble. " In 18 carrying on the affairs of the estate one of the executors, with the knowledge of his co-executor, and without any remonstrance from him, used in his business |200 of the estate, and the other had taken a mortgage, in his own name, for |900 belonging to the estate, without executing any declaration of trust in respect thereof. Under these circumstances the court refused to the sur- viving executor, and to the executor of the de- ceased executor, their costs of the suit ; the court, however, being satisfied that neither of them had been guilty of any wilful raiscondact, did not charge them with costs, and allowed them the amount of their commission ; bat re- fused to allow them to receive the legacies given by the will, which were expressed to be in re- muneration for their trouble. lb. Where an executor, by his misconduct in the management of an estate, causes a suit, and but for the fact of the suit having been brought the assets would have been dissipated, the court will not, as a general rule, allow such executor his costs out of the estate, although no loss has been sustained ; and where in such a case, the party interested filed a bill without calling upon the executor for an account, or affording him any opportunity of shewing that his dealings were correct, the court, (Spragge, C. ) refused the costs of the suit to either party up to the taking of the accounts, but directed the executor to pay the subsequent costs up to the decree. Simp- son V. Home, 28 Chy. 1. The plaintiff being a lunatic, and entitled to maintenance out of the income of a fund in the hands of executors, brought an action for the in- come, and for administration. The master re- ported a balance of income in the hands of the executors, being an amount charged against them for interest upon moneys retained by them and not invested according to the terms of the will ; but the conduct of the executors was otherwise proper : — Held, that if the question of the liability of the executors for the interest had been the only one in the action, the executors should have been ordered to pay the costs ; but inasmuch as a general administration was unnecessarily sought by bill and granted, no costs should be awarded for or against, the executors. McCardle v. Moore etal, 2 0. E., Chy. D. 229. In a suit for administration, it appeared that the personal representative had kept very imper- fect accounts of the estate, and that those brought into the master's office had been made up partly from scattered entries and partly from memory : — Held, a sufficient justification for the institu- tion of the suit, and that the plaintiff was entitled to the costs from the defendant up to the hearing, although no loss had occurred to the estate. Kil- lins V. Killins, 29 Chy. 472. It was also shewn that the personal representa- tive had invested the moneys of the estate in land out of the jurisdiction of the court as weU as on personal security, but no loss had been sustained, all having been repaid by the borrowers : — Held, that these facts did not constitute any ground for depriving her of the costs of suit subsequent to the decree. lb. When it appeared that the administration pro- ceedings had been instituted without any shew of reason, or proper foundation for the benefit of the estate, and that they had not, in their results. 275 EXTRADITION. 276 conduced to that benefit, the decision of Proud- foot, J., ordering the plaintiff to pay the costs of all parties, was afiirnaed on appeal. Ee Woodhall —Garbvttv. Hewsonetal 2 0. K., Chy. D. 456. Executors were charged by the master in tak- ing the accounts in an administration suit with the sum of $9,404.42, and allowed as disburse- ments the sum of $8,228.76. These amounts in- cluded on both sides a sum of |3, 238.25, repre- senting securities either in the possession of the plaintiff at the time of the testator's death, or handed over to the plaintiff immediately after- wards. The master allowed the executors a com- mission of |400 on the total receipts, including the said sum of $3,238.25 :— Held, that the execu- tors were entitled to compensation in respect of the said sum of $3,238.25 :— Held, that the com- mission allowed was not excessive. He Batt — Wnght V. WhUe, 9 P. R. 447.— Proudfoot. See Ee Donovan^ Wilson v. Beatty, 29 Chy. 280 9 A. E. 149 p. 45. See also Sub-head II. 1, p. 267. 4. Administration ad litem. A motion made under E. S. 0. c. 49, s. 9, to appoint an administrator ad litem of the estate of a deceased person may be made before the referee, as this section merely extends a jurisdic- tion already possessed by him under G. 0. .56. Collver V. Swayzie, 8 P. E. 42. — Stephens, Be- feree. — Spragge. It is competent to the court, on a proper case being made, to appoint or dispense with an ad- ministrator ad litem, and then to direct an ac- count, but to ju&tily such an order it should ap- pear not only in general terms that the estate was email, tut a statement shewingthenatureand .mount of the personal estate ought to be pro- duced and ■verified. Re Coltov — Fither v. CoUon, 8 P. E. 542.— Proudfoot. Held, that the court has no power, where the administration of an intestate's estate forms the subject of the suit, to appoint a representa- tive, under E. S. 0. c. 49, s. 9, as the intestate is not a party interested in the matters in ques- tion in the suit within the meaning of that sec- tion. Hughes v. Hughes et at., 6 A. B. 373. The original plaintiff having died pendente lite and an order having been obtained to continue the proceedings in the name of an administrator ad litem: — Held, that the plaintiff'scosts, between solicitor and client, should be paid out of the in- terest recovered : — Held, also, that the adminis- trator ad Htem was not entitled to be paid the residue of the fund ; but as to this liberty to apply was granted. McCardle v. Moore, et at, 2 O. E., Chy. D. 229. See Re Donovan — Wilson v. Beatty, 29 Chy. 180 ; 9 A. E. 149, p. 45. EXPEET EVIDENCE. See Evidence. EXTOETIOJSr. A magistrate acting under 32 and 33 Viet. c. 20, s. 37, D. convicted four persons for creating a disturbance thereunder, and imposed upon each a fine of $5.00, but instead of severing the costs which he had charged, imposed the full amount thereof against each defendant, and re- ceived it from each : — Held, that under the cir- cumstances, more fully set out in the report of the case, the overcharge must be deemed to have been wilfully made, so as to render the defen- dant liable to the penalty imposed in such cases by the E. S. O. c. 77, s. 4. Parsons qui tarn v. Crabhe, 31 C. P. 151. EXPULSION Oe Membees op Coepoeation.s — See Corpora- tions. EXTEADITION. I. CONSTKUCTION OP THE TeBATY. 1. Forgery, 11 See Division Court. III. In Chambers — See Practice. JUDGMENT. , ENTERmo Judgment under 0. J. Act 1881. 1. Service of Notice of Motion, 392. 2. Under Rule No. 78, 392. 3. Under Rule No. 80, 392. 4. Under Rule No. SSI, 393. 5. Under Rule No. SZ2, 393. 6. Under Rule No. 3S4,, 393. 7. Other Cases, 394. II. Interlocutory Judgment, 394. III. Setting aside Judgment, 395. IV. ErPECT or Judgment in Evidence, 395, V. Estoppel by eoemeb Judgment, 395, VI. Interest on Judgments, 397. Vll. Foreign Judgments, 397. VIII. Actions on Judgments, 398. IX. Enforcing Judgment of Court or Appeal — See Court of Appeal. X. Proof of — See Evidence. XI. On Cognovit — See Fraudulent Judg- ment. XII. Fraudulent Judgments — See Fraud- ulent Judgment. XIIX. Reviving Judgments — See Scire Fa- cias and Revivor. I. Entering Judgment under 0. J. Act, 1881- 1. Service of Notice of Motion. Where a defendant does not appear, notice of motion for judgment must nevertheless be served or posted in the proper otiSce under Rule, 131 0. J. Act. Burritt v. Murdoch, 9 P. R. 191.— Proud- foot. 2. Under Rule No. 78. An action for foreclosure of a mortgage is- governed by Rule 78, and no order allowmg ser- vice is necessary, and on default of appearance judgment may be entered on prsecipe according, to the former practice in Chancery. Chamber- lain V. Ai-mstrong, 9 P. R. 212. — Boyd. 3. Under Rule No. 80. A writ was endorsed as follows : — " The plain- tiff's claim is for the price of goods supplied." The following are the particulars : — " $621. 06 for money payable by the defendant to the plaintiff for goods bargained and sold, and sold and de- livei-ed by the plaintiffs to the defendant, and interest thereon from the 25th of July, 1882":— Held, that the endorsement was not a suificient special endorsement to entitle the plaintiff to ask for judgment under Rule 80, 0. J. Act. Lucas V. Ross, 9 P. R. 251.— Dalton, Master. The endorsement on the writ was as-foUows ;— " The plaintiffs claim ^2,000 being the amount of the defendant's overdrawn account with the plaintiffs' bank on the 18th September, 1882 ":— Held sufficient. Imperial Bank v. Britton^ 9 P. R- 274. — Dalton, Master. The writ was endorsed for the price of Imi which the plaintiff had agreed to sell to the de- fendant. A motion for judgment under Rule 80, 0. J. Act, was refused. Such a claim cannot te specially endorsed. Hood v. Martin, 9 P. K. 313.— Dalton, Master. i The power given by Rule 80, 0. J. Act, to sign judgment should be most carefully and sparingly exercised in cases where the defendant makes aa affidavit of merits, and disputes the claim, and 393 JUDGMENT. 394 should never be exercised unless it is shewn that the plaintiff may be seriously prejudiced by the delay in awaiting the ordinary modes of trial, nor in any case in which, under the old practice, final judgment could not have been signed for want of appearance. On the facts stated in the report, an order of the Master in Chambers, directing the butry of final judgment under such rule, was set aside on appeal. Barber v. JRussdl, 9 P. K. 433. — Cameron. The order for security for costs under Rule -431, 0. J. Act, is a stay of proceedings, and a judge has no power to set it aside when once properly issued and sign final judgment under Rule 80, 0. J. Act. The Bank of Nova Scotia ■V. LaRoche, et al. 9 P. E. 503.— Cameron, 4. Under Rule No. SSI. Under Rule 321, 0. J. Act, the court may, upon motion for judgment or for a new trial, if satisfied that it has before it all the materials necessary for finally determining the question in dispute * * give judgment accordingly, but * * Per Wilson, 0. J. — Unquestionably that power must be most sparingly and cautiously exercised. Stewart v. Roxuah, 7 A. R. 515. 5. Under Rule. No. SS2. The defendant in an action on a judgment ob- tained in Iowa, U. S. A. , pleaded denying the re- covery of the judgment. Upon a motion for judg- ment under Rule 322, upon the pleadings veri- fied by affidavit, and the production of an ex- emplification of the judgment : — Held, afiii-ming the opinion of the master, that judgment could not be ordered on these materials under Rule 322, thfe defendant having put the judgment dis- tinctly in issue. In proceeding under the Rule 322 it is not sufficient to produce a document on which the plaintiff relies, without any proof to connect the defendant with it or to support its genuiness. Henebery v. Turner, 2 0. R. , Q. B. i). 284. In an action for the recovery of land the plain- tiff may obtain an order to sign final judgment under Rule 322, upon an admission of the de- fendant in his examination. Trust and Loan Co. V. mil, 9 P. R. 8.— Dalton, Master. 6. Under Rule No. SU- The judge sitting in Chambers has no juris- diction to order judgment to be signed under Rule 324 (a), but a motion for judgment there- under must be made to the court. Morrison v. Taylor, 46 Q. B. 492. Where it appears that defendant has no de- fence, and has made, or is intending to make a fraudulent disposition of his property, or is so dealing with it as to embarrass the plaintiff in reaching it by execution, the court will, on motion, under rule 324, upon a proper case being made, order judgment and immediate execution. In the event of other executions being obtained against the debtor's property before the time at which the plaintiff would be entitled to issue ■executions as on a judgment in default of ap- pearance, and the amount realized being insuffi- cient to satisfy all parties, a ratable diTision should be made. Kinloch v. Morton, 9 P. fi. 38. — Osier. Where there were cross-actions, in one of which a sum had been reported due and a claim of set-off had been disallowed, in a subsequent action brought to recover the sum disallowed, the plaintiff was held entitled to move for judg- ment under Rule 324. But the affidavits filed onthemotion being conflicting: — Held, the action must be entered for trial at the sittings for the examination of witnesses, but the amount found due in the first action was ordered to be paid into Court, to abide the result of the second action. Francis v. Francis, 9 P. R. 209.— Proudfoot. In an action for the rectification of a deed and for a declaration that the plaintiff was entitled to a right of way, and for an injunction restrain- ing defendant from interfering therewith. The endorsement stated the relief claimed. The de- fendant who did not appear within the time lim- ited, subsequently entered an appearance, but didnot serve any notice thereof : — JHeld, onmotion for judgment under Rule 324, 0. J. Act, that a statement of claim must be filed. Hunter v. Wilcockson, 9 P. R. 305. — Ferguson. A person of the same name as the defendant served by mistake with the writ in the action was held entitled to his costs of opposing a mo- tion for judgment under Rule 324, 0. J. Act. LucasY. Fraser, 9 P. R 309.— Osier. 7. Other Cases. When an action is commenced in a local office, judgment for default of appearance or pleading must be entered in the local office. Chamber- lainv. Armstrong, 9 P. R. 212. — Boyd. An action was transferred from the Chy. Div. to the C. P. Div. by an order of the judges, but the plaintiff not having notice of the transfer signed judgment in the Chy. Div. An order was made retransferring the case to the Chy. Div., and allowing the judgment entered to stand and be in force from its entry, without costs. Patterson v. Murphy, 9 P. R. 306.— Dalton, Master. Where the only property the defendant owned was the equity of redemption in certain lands, on motion for judgment for the amount of the plain- tiff's claim and for a decree for sale of the equity of redemption : — Held, on the authority of Kerr V. Styles, 26 Chy. 309, that the plaintiff could have judgment as asked notwithstanding that in this case there were no fi. fas. in the sheriff's hands. Johnson v. Bennett, 9 P. R. 337. — Proud- foot. II. iNTBELOCtTTOBY JUDGMENT. Held, that in an action commenced by a, writ not specially endorsed, where the defendant does not plead to the declaration, the plaintiff must sign interlocutory judgment against the defend- ant before he is in a position to serve notice of trial and assessment of damages. Fenwick v. Donohue, 8 P. R. 116.— Dalton, Q. C. See also, Johnstons. Christie et al, 31 C. P- 358. 395 JUDGMENT. 395 III. Setting Aside Judgment. Semble, the question of the validity of a judg- ment should not be argued on the return of a garnishee summons, but should be raised on an application to set aside the execution. Elliot v. Capell, 9 P. B. 35.— Dalton, 1/asier.— Osier. Twenty-two months after judgment had been signed in an action on promissory notes for want of a plea and execution issued, and the defendant examined as a judgment debtor, leave was re- fused to set aside the judgment, and amend the declaration by charging the defendant with fraud within the meaning of the Insolvent Act of 1875. Lightbomid v. Mill, 9 P. K. 295.— Dal- ton, Master. See Byan v. Fish et al, 9 P. K. 458, p. 227. See also Watson v. Ketcimm, 2 0. R. 237 ; Cor- poration of Town of Dundas v. Gilmour et al., 2 O. K. 463. IV. Effect of Judgment in Evidbnce. D., the purchaser of land, gave a mortgage thereon to secure part of the purchase money, and subsequently allowed taxes to accumulate on the land, which was sold in order to realize such taxes when D. bought it and obtained the usual deed to himself. D. having made default in payment of the mortgage, proceedings at law were institu- ted thereon, pending which D. conveyed this and other property to his two sons, who gave a mort- gage back securing the support and maintenance of D. and his wife, and the plaintiff, after recov- ering judgment, filed a bill impeaching the trans- action for fraud : — Held, (1) that upon the evi- dence the transaction was fraudulent and void as against creditors ; (2) that although ordinarily the production of the exemplification of a judg- ment at law is admissible, and has been generally received as evidence of a debt due the plaintiff against all parties in suits under the statute of Elizabeth, yet that the judgment so recovered by the plaintiff against D. was not evidence against the sons, being res inter alios judicata. Allan V. McTavish, 28 Chy. 539. See S. O., 8 A. E. 440. V. Estoppel by Former Judgment. Where a judgment has been recovered for a debt without fraud being charged under s. 136 of the Insolvent Act of 1875, the plaintiff is barred by such recovery from bringing another action against the debtor charging the fraud, even although the judgment was recovered by default, for the plaintiff might have declared, averring such fraud, and had the question tried. Lighibound v. Hill, 32 C. P. 249. Effect of judgment in appellate court where the judges were equally divided. See In re Hall, 32 C. P. 498; 8 A. P. 135 p. 178. A judgment in favour of the plaintiff in an action for trespass to lands upon pleas (amongst others) of lands not plaintiff's and liberum tene- mentum, is not a complete estoppel, preventing the defendant in another suit, from questioning the plaintiff 's title to any part of the lands. The judgment is only an estoppel with regard to the title of that portion of the land upon which it had been shewn that the defendant had tres- passed. Hunter v. Birney, 27 Chy. 204. S. being the holder of two mortgages, brought ejectment thereon, when the genuineness of the signatures to the instruments was disputed, not- withstanding which he recovered judgment ia that action, and subsequently instituted proceed- ings in this court seeking to obtain a sale of the mortgage premises and the usual order for defi- ciency. Owing to the extremely contradictory- evidence adduced at the hearing, the court [Spragge, C.,] refused to make the decree as. asked, holding the evidence insufficient to estab- lish the execution of the mortgages, as the plain- tiff was bound to do, and dismissed the bill, with costs ; but without prejudice to S. filing another bill if so advised, within twelve months from the date of that decree. After the lapse of more than twelve months the mortgagor tiled a bill seeking to have the mortgages delivered up to be cancelled : — Held, that if the strict constructiom of such decree was that the point was res judi- cata it was erroneous, and the court (Spragge,. C) refusing to enforce it in this proceeding by making a decree in favour of the plaintiff, dis- missed the biU with costs. Mitchell i 28 Chy. 80. A former suit'had been instituted by the plain- tiff 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. Ad- amson v. Adamson, 28 Chy. 221. On proceeding with the reference under the decree pronounced on the hetiring, as reported 28 Chy. 356, the Master by his report found that there was due to the plaintiff §1,104.99, which included a sum of $171.32 costs incurred in the suit brought by him to redeem : — Held, on ap- peal, — afiirming the report of the Master — (1) that the plaintiff was entitled to claim the costs- so incurred, that proceeding having been taken in reality in defence of his rights' as owner of an equity of redemption vidth the concurrence of C, through whom the appellant claimed — and, (2| that neither of the defendants could dispute the findings in that suit, but were estopped from questioning the amount found due therein to the same extent as Jarvis under whom they claimed would have been, the proceeding being not in respect of a matter collateral to the mortgage in question in that suit, but virtually upon the same instrument, and that therefore the rule as to estoppel by deed applied. Pierce v. Gdnmanr 29 Chy. 32. An action will not lie against an incorporated bank for breach of warranty on the sale of a horse-powermachine. In an action in the Division Court against the now plaintiff, on notes given by him for the price of a machine, the question of the wai-ranty was tried and decided against the now plaintiff : — Held, that the matter was res judicata, and the judgment in the Division Court was therefore a good defence, by way of estoppel, to the present action. Sadford v. The Merchants Bank, 3 0. E., C. P. D. 529. See Davidson v. The Belleville and Nm'th Hast- ings R. W. Co., 5 A. E. 315 p. 168 ; Hmta- v. Vanstone, 7 A. E. 750, p. 217. Re Donovaiv- Wilson V. Beatty, 29 Chy. 280 p. 45 ; Banh of Montreal v. Hafner et al., 3 0. E. 183, p. 148. 397 JURY. 398 _ VI. Inteeest on Judgments. Section 43 of the Court of Appeal Act, -which provides "•when on an appeal against a judgment in any action personal, the Court of Appeal gives judgment for the respondent, in terest shall be allowed by the Court for such time as execution has been delayed by the appeal," does not apply to a case vfhere the judgment of the court below is in favour of the defendant, and is reversed on appeal. In such case the court, on reversing the judgment, gave liberty to the appellant, the plain- tiff in the court below, to move to be at liberty to enter judgment as directed by this court, nunc pro tunc, whereby he would be enabled to recover interest on the amount of the verdict ren- dered in his favour. Quinlan v. Uni(m Fire Ins. Co., 8 A. B. 376. [See 47 Vict. c. 10, s. 4.] VII. Foreign Judgments. Under 22 Vict. c. 5, s. 58, consolidated in C- S. L. C. u. 83, B. 53, sub-s. 2, a judgment may be recovered in the Province of Quebec, on a personal service in Ontario, in an action in which the cause thereof arose in Quebec, so as to ren- der such judgment conclusive on the merits . A note made in Ontario, payable at a particular place in Quebec, is a contract deemedjto be made in Quebec, the place of performance, and under 0. S. C. c. 57, o- 4, is payable at the place named therein, the C. S. tJ. 0. c. 42, requiring the use of the restrictive words, ' ' not otherwise or elsewhere, " applying only to notes made and payable in Ontario. The note in this case was made in Toronto, payable at the Mechanics' Bank, Montreal, and was sent to Montreal, and there held until maturity, when it was presented for payment and dishonoured : — Held, that the contract being performable in Quebec, and the breach occurring there, the cause of action arose there, so as to bring the defendant within the operation of 22 Met. u. 5. s. 58, and to make a judgment recovered against him in Quebec, on a personal service in Ontario, conclusive on the merits ; and the defendant was therefore pre- cluded from setting up a defence on the merits, and was allowed to except to the jurisdiction only. Court v. Scott, 32 C. P. 148. The plaintiff sued the defendant on a foreign judgment for $240, and specially endorsed this amount upon the writ of summons. He obtained judgment in default of appearance : — Held, that the foreign judgment was not a liquidated or ascertained amount within the meaning of R. S. O. c. 50, s. 153, and that the plaintiff was en- titled to Superior Court costs. Davidson v. Oamerm, 8 P. E. 61.— Dalton, Q. C. To an action on a foreign judgment, the de- fendant pleaded that he was not at the time of the commencement of the action or previously resident or domiciled within the jurisdiction of the foreign court, or a subject of that country, and that he was not served with process in the action, and had no notice of it or opportunity of defending himself. On motion to strike out such defence as false defendant admitted in his exam- ination that he had heard of some claim being made by the plaintiff, through a letter from his brother living in the United States, that he wrote to his brother to employ some one to attend to it. and sent a statement of that matter to him, but that he never heard of the action or trial until after judgment, when he was informed of it, and that his property in the United States had been attached to pay it. It appeared that an appear- ance had been entered foi L jm there by a firm of lawyers. The application was refused. Schibs- by V. Westenholz, L. E. 6 Q. B. 155, followed. Bcaty V. Cromwell, 9 P. E. 547. — Winchester, Registrar. — Armour. See Henehery v. Turner, 2 0. E. 284, p. 393. VIII. Actions on Judgments. See Beaty v. Cromwell, 9 P. E. 547, supra Henehery v. Turner, 2 0. E. 284, p. 393. JURISDICTION. 1 . Or Courts— iSce Their Several Titles. II. Oe Judge in Chambers — See Practice. III. Oi? Master — See Practice. JURY. I. In Civil Cases. 1. Jury Notice, 398. 2. Questions Submitted to and Findings by Jury, 399. 3. Assessment of Damages, 400. 4. Withdrawal of Juror, 400. 5. Verdict — See Verdict. II. In Criminal Cases- -See Criminal Law. I. In Civil Cases. 1. Jury Notice. With his joinder of issue, the plaintiff served notice of trial for the Chancery sittings. Defen- dant af terwai ds served a similiter and jury no- tice : — Held, that the similiter and jury notice were good, and that the notice of trial must be set aside. McLaren v. McGuaig, 8 P. E. 54. — Dalton, Q. C. In ejectment where equitable issues are raised under R. S. O. c. 50, s. 257, the issues must be tried without a jury. Bryan v. Mitchell, 8 P. R. 302.— Dalton, Q. C— Armour. The plaintiff joined issue upon defendants' and at the same time tiled a similiter, without a jury notice, for the defendant. After- wards the defendant filed a second similiter, and with it a jury notice : — Held, that the defendant should have tiled a jury notice with his pleas ; that the first similiter was good, that the second was unnecessary, and must, together witli the jury notice, be struck out as bad. Hyde v. Cas- me'a, 8 P. R. 137.— Dalton, Q. C. An order directed the trial of an issue in an interpleader matter. The plaintiff served the issue but did not serve with it a jury notice as required by R. S. 0., c. 54 s. 4. He subsequently served a jury notice with the notice of trial. The 399 JUSTICES OF THE PEACE. 400 defendant did not appear at the trial, and a ver- 1 diet was rendered for the plainti£f, who after- wards obtained, (on notice), in Uhambera an or- der for costs :— Held, on appeal affirming this or- der, that the verdict obtained on the trial by a jury was not a nullity, but only irregular, and not being moved against promptly should stand. Leeson v. Lemon, 9 P. E. 10.3.— Boyd. Held that an action to set aside a conveyance could, previous to the 0. J. Act, have been brought in the Court of Chancery only, and the defendant had therefore no right, as of course, to have the action tried by a jury. While under the old Chancery Act (R. S. 0. c. 40, s. 99) the court might direct an action to be tried by a jury upon notice and for good cause, yet this could only be done by the court, and not by a judge or master in chambers. Thurlow v. Beck, 9 P. R. 268.— Patterson. In cases in which, before the 0. J. Act the Court of Chancery had exclusive jurisdiction, a jury notice is irregular and will be struck out. Oowanlock v. Mans, 9 P. R. 270.— Dalton, Master. Where the cause of action was one of a purely common law character, and none of the defences or replies presented issues of a merely equitable character, Boyd, C. , reversed the order of a local master, striking out the defendant's jury notice. Bank of British North America v. Eddy, 9 P. R. 468. If it were shewn that there was likely to be a great complexity of facts : — Semble, that such an element alone would not be areasonfor dispensing with a jury in a common law cause of action. Ih. 2. Questions Submitted to and Findings by Jury Held, that under R. S. 0. c. 62, s. 10, any evidence adduced by a party interested against an executrix corroborating the evidence of the interested party in any particular, must be sub- mitted to the jury as sufficient in point of law, the weight to be attached to it in point of fact being a matter for their consideration. Parker V. Parker, 82 C. P. 113. In an action against a railway for injuries caused by a collision at a crossing, the jury in answer to the question, "If the plaintiffs had known that the train was coming would they have stopped their horse further from the railway than they did," said "Yes:" — Held, that though this was not very definite, yet taken with the evidence on which the jury acted it was sufficient. Bosenberyer et al. v. The Grand Trunk Ry. Co., 32 C. P. 349. Where a question was not put to the jury until after they had rendered their verdict and answer- ed the other questions submitted to them, and after the learned judge had been moved for judgment upon those answers, but it was done while all the parties and their counsel were pre- sent and before the jury had left the court room ; — Held, that the question had been properly put. McLaren v. The Canada Central Ry. Co. 320. P. 324. The judge is not bound under the 0. J. Act to submit questions in writing to the jury. Lett V. 2Vie St. Lawrence and Ottawa Ry. Co. , 1 0. R. , Q. B. D. 545. Held per Patterson, J. A., that it was not im- proper to leave to the jury the question whether the amount in this case was ascertained by the act of the parties. Watson v. Severn, 6 A. R. 559. The R. S. 0. c. 50, s. 264, makes it imperative upon the jury to answer questions submitted to them and prohibits them from gi ving a general ver- dict instead. But the judge after havingput ques- tions, may, nevertheless, in his discretion receive a general verdict. Farlong v. Carroll, 7 A.R. 145. The new system of calling upon juries to reply to specific questions considered and discussed, and, per Hagarty, C. J. , questioned. The Canada Central Ry. Co. v. McLaren, 8 A. E. 564. 3. Assessment of Damages. Held, that inanaction commenced by a writnot specially endorsed where the defendant does not plead to the declaration, the plaintiff must sign interlocutory judgment against the defendant before he is in a position to serve notice of trial and assessment of damages. Fenwick v. Dona- hue, 8 P. R. 116. 4. Withdrawal of Juror. The withdrawal of a juror at the trial has the effect of concluding the suit, and with it, of de- termining the whole cause of action. Flake v. Glapp, 8 P. R. 62.— Dalton, Q. 0. JUSTICES OF THE PEACE. I. Qualification and Appointment, 400. II. Summary Prooeedings before Magis- trate, 401. III. Jukisdictiox. 1. Disqualification by Reason of Interest, 401. 2. Ousting Jurisdiction by Claim of Title, 401. IV. Conviction. 1. Form and Requisites of, 401. 2. Amendment of, 403. 3. Memorandum of Conviction, 403. 4. Quashing, 403. 5. Appeals from— See Sessions. 6. Certiorari to bring up Convictions — See Certiorari. V. Warrant for Arrest, 403. VI. Procbbdings against and LiABiurr of Magistrates, 404. VII. Sessions— iSee Sessions. 1. Qualification and Appointment. Held, that the Legislature of the Province of Ontario had power under No. 14 of sec. 92 B. B. A. Act to pass R. S. 0. c. 71, providing for the qualification and appointment of justices of the peace. Regina v. Bennett, 1 0. R., Q. B. D. 445. 401 JUSTICES OF THE PEACE. 402 II. SmsTMABT Pboobedings before Maqistbatb. Th,e defendant -was convicted o£ a common as- sault, npoa the complaint of the prosecutor, who werbally requested the magistrate to proceed summarily :— Held, that the request to proceed summarily need not be in writing. Reqina v Smith, 46 Q. B. 442. III. Jurisdiction. 1. Disqualification by Season of Interest. _ Two of the four convicting justices were licensed auctioneers for the county, and per- sistei in sitting after objectiou taken on account ■of interest, though the case might have been disposed of by one justice : — Held, that they were disqualified, and in quashing the conviction •on that ground also, the court ordered them to pay costs. Regina v. Ohapmaii, 10. K , Q. B. "x). 582. 2. Ousting Jurisdiction by Claim, of Title. Where the defendants had been convicted, under 32-33 Vict. c. 22, s. 60, of trespass to land, and il appeared on the evidence, before the magistrate set out in the report of the case, that there was a dispute between the parties as to the ownership : — Held, that it was a case in which the title to laud came in question ; and that the defendants had been improperly convicted, even though the magistrate did not believe that the defendant had a title, it not being within his province to decide on the title, but merely on the good faith of the parties alleging it. Regina V. Davidson et al., 45 Q. B. 91. The defendants were convicted of a trespass under C. 8. U. 0. c. 105, as amended by 25 Vict. ■c. 22. They appealed to the sessions, which affirmed the conviction. The conviction was then brought into this court, and a motion was made to quash it on the ground of want of juris- diction in the convicting justice, inasmuch as it appeared by the evidence, and by affidavits filed, that the defendants acted under a fair and reasonable supposition that they had the right to do the acts complained of within the meaning of the above statutes : — Held, that that was a fact to be adjudicated upon by the con- victing justice upon the evidence, and, therefore, that a certiorari would not lie for want of juris- ■diction. Regina v. Malcolm et al, 2 0. R; , Q. B. D. 511. IV. CoNVICTIOSf. 1 . Form and Requisites of. A conviction must be under seal. Jn re Ryer 'and Plows, 46 Q. B. 206. The conviction adjudged payment of a fine and ■costs, and in default imprisonment : — Held, good ; and that it was not necessary to order that a distress warrant to compel payment of the fine should be issued before imprisonment. Regina v. Smith, 46 Q. B. 442. On motion to discharge a prisoner on habeas ■corpus on conviction before a police magistrate, the conviction charged that the prisoner did 26 ' ' unlawfully and maliciously out and wound one Mary Kelly, with intent then and there to do her grievous bodily harm" : — Held, that the addi- tion of the words, "with intent to do grievous bodily harm," did not vitiats the conviction, and that the prisoner might be lawfully convicted of the statutory misdemeanour of malicious wound- ing : — Held, also, that imprisonment at hard labour for a year was properly awarded under 38 Vict. c. 47. Regina v. Boucher, 8 P.R. 20. — Hagarty. The defendant was convicted before a magi- strate, for that he "did in or about the month of June, 1880, on various occasions, " commit the oflfence charged in the information ; and a fine was inflicted "for his said offence " i—Hald, that the conviction was bad, under 32-33 Vict. c. 21, s. 25, D., as shewing the commission of more than one offence. Regina'^. Clennan, 8 P. R. 418— Wilson. The original conviction was for "acting in a disorderly manner by fighting, and breaking the peace, contrary to the by-law and statute in that behalf ;" imprisonment with hard labour was imposed in default of payment of the fine, and the costs were made payable in the alternative to the magistrate or the prosacutor : — Held, bad. Regirn, v. Washington, 46 Q. B. 221. A by-law of a town provided that no one should use any waggon, fee., upon any of the streets of the town for drawing bricks, stones, &o. , when the weight of the load should exceed 1500 pounds, unless the tires of the wheels ware of a specified width, but the by-law was not to apply to any waggon conveying Itimber or goods from the mill or manufactory thereof into the town it distant more than two miles from the town limits, nor to any person pigling thro'igh the town in vehicles loaded with the said articles : — Held, bad, as discriminating against residents of the town in favour of others ; — Held, also, that a conviction under such by-law was bad for not shewing that defend mt was not a person passing through the town, and for imposing im- prisonment with hard labour. Regina v. Pipe, 1 0. R., Q. B. D. 43. The defendants were con-ncted for unlawfully assaulting F. V. "by standing in front of the horses and carriage driven by the said V. , in a hostile manner, and thereby forcib'y detaining him, the said V., in the pubUc highway against his will. " — Held, that the conviction was bad in stating the detention as a conclusion and not as part of the charge, which, as shewn by the con- viction, was merely standing in front of the horses, and did not amount to an assault. Regina V. McEUigottetal. 3 0. R., Q. B. D. 535. On an application to the Divisional Court to quash a conviction made by the police magis- trate, of the city of Toronto, against the defen- dant for keeping a house of ill-fame, there being evidence, as set out in the report of the case, upon which the magistrate could convict, the court refused to interfere. In the conviction the offence was stated to be against the statute in such case made and provided : — Held, that, if not constituted an offence under 32-33 Vict. c. 32, D. , the reference to the statute might be treated as surplusage, and the conviction sustained under the common law ; but that the reference to the statute might be supported, because sec. 17 im- 403 LACHES. 404 poses a punishment in some respects different from the common law. Eegina v. Flint, 4 0. E., C. P. D., 214. As to jurisdiction of magistrates to convict for gambling under 27 Geo. 3 e. 1. See Begina V. Matlieson, 4 0. E. 559. p. 310. See Begina v. Clark, 2 0. E. 523, p. 72 : Begina V. Walsh, 2 0. E.. 206, p. 99 ; Begina v. Bennett, 3 0. E. 45, p. 100 ; Beyina v. Wallace, 4 0. E. 127, p. 100. 2. Amendment of. Conviction under Canada Temperance Act, 1878. See Begina v. Bennett, 3 0. E. 45, p. 100. Conviction under Liquor License Act, E. S. 0. c. 181. See Begina v. Allbnght, 9 P. E. 25; McLellan v. McKivnon, 1 0. E. 219. 3. Memorandum of Conviction. Held that the fact that the memorandum of conviction differed from the conviction as returned, in not providing for imprisonment in default of payment, did not invalidate the conviction, for it is sufficient if the penalty has been fixed at any time before the conviction is fo/maUy drawn up. Begina v. Smith, 46 Q.B. 442. Held, the defendant, having had the certiorari directed to the magistrate who had convicted, was estopped from objecting that the conviction was in reality made by three, as appeared from the memorandum of conviction which was signed by them. III. 4. Quashing. Held, that the validity of a by-law might be questioned on a motion to quash the conviction made under it. Begina v. Cuthbert, 45 Q. B. 19. A warrant was issued by a magistrate for the apprehension of the defendant, who was brought before another magistrate thereon, convicted and fined. Subsequently the magistrate who had issued the warrant caused the defendant to be summoned before him for the same offence, and again convicted and lined him, after refusing to receive evidence of the prior conviction. The court qiiashed the second conviction, with costs : — Held, that, even assuming that the first convic- tion was void by reason of the defendant having been brought before a magistrate other than the one who issued the warrant, his appearance and pleading thereto amounted to a waiver, and r.t any rate the magistrate who convicted the second time could not take advantage thereof. Begina V. Bernard 4 0. E., Q. B. D. 603. See Begina v. Whelan, 45 Q.B. 396, p. 105 ; Mc- Lellan V. McKinnon, 1 O. E. 219, p. 404 ; Be- gina V. Clark, 2 0. E. 523, p. 72. See also Begina v. Grainger, 46 Q. B. 382. V. Waeeant for Abkest. The warrant was issued in the United Counties of Northumberland and Durham, and was en- dorsed by a magistrate in the" county of Peter- borough, "This is to certify that 1 have endorsed this warrant, to be executed in the county of Peterborough," but there was no proof of the hand-writing of the justice who issued the war- rant or recital of such proof as required by 32- 33 Vict. c. 30, ». 23, D., sch. K :--Held, that the warrant was therefore defective, and the arrest illegal, for which the defendant was liable in trespass. Beid v. Maybee, 31 C. P. 384. YI. Proceedings ag.4inst and Liability oi Magistrates. A magistrate acting under 32-33 Vict. c. 20, s. 37, D. , convicted four persons for creating a disturbance thereunder, and imposed upon each a fine of $5, but instead of severing the costs which he had charged, imposed the full amount thereof against each defendant, and received it from each : — Held, that under the circumstances, more fully set out in the report of the case, the overcharge must be deemed to have been wilfully made, so as to render the defendant liable to the penalty imposed in such oases by the R. S. 0. c. 77, s. 4. Parsons qui tarn v. Crabbe, 31 C. P. 151. When an appeal was brought from a conviction imposing imprisonment with hard labour which the magistrate had no power to award, and the sessions amended the record by striking out "hard labour." — Held, Cameron, J., dissenting, that their assuming so to amend the conviction was not a quashing of a conviction, and there- fore trespass would not lie against the justice. McLellan v. McKinnon, 1 0. E., Q. B. D. 219. LACHES. Entitling Surety to Discharge — See Feinoi- PAL AND Surety. 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 dih- gence in enforcing payment thereof.and if throus;h his default or laches the money secured thereby is lost it will be charged against the creditor and deducted from his demand . Synod v. DeBlaqyiere, 27 Chy. 536, Held, that under the facts stated in this case there had been no laches on the part of the com- pany disentitling them to the debentures. Be Grand Junction B. W. Co. v. County of Feter- boro, 45 Q. B. 302. Eeversed on appeal, 6 A. E. 339. Held, in this case, that by acquiescing in the sale ot land, and by her laches the widow had waived her right to compensation for the loss of benefits bequeathed to her by her husband. See Bipley V. Bipleij. 28 Chy. 610, p. 224. On an application to open up proceedings by way of review on the ground of newly discovered evidence, Fei-guson, J . , refused the relief asked with costs on the ground amongst others, that the company, had they exeicised due diligence m the matter, might have become aware of the prior purchase and payment to which such evidence related. Dumble v. Cobourg and Peterborough B. W. Co., 29 Chy. 121. ^ee also Murray et at v. Canada Central B. W. Co., 7 A. E. 646. 405 LANDLORD AND TENANT. 405 Held, in this case that the defendant was not debarred by laches from setting up the defence of false representation in the sale to him of certain land. See Lee V. McMahon, 2 0. E. 654, p. 288. Delay in moving against by-law. See In re Mc- Alpine v. The Corporation of the Township of Euphemia, 45 Q. B. 199. Motion to set aside award refused. See Par- dee V. Lloyd, 5 A. R. 1, p. 19. Application to open foreclosure refused. See Miles V. Cameron, 9 P. E. 502. Application for interim alimony. Delay in proceeding not satisfactorily accounted for. See Thompson v. Thompson, 9 P. R. 526, p. 329. Delay in application to set aside judgment. Lighibcmnd v. Bill, 9 P. R. 295, p. 395. An infant if he wishes to avoid a contract must repudiate it within a reasonable time after coming of age, otherwise his silence will be held to amount to an affirmance of it. See Foley v. Canada Permanent Loan and Savings Co., 4 0. R. 38, p. 335. See also Tylee v. The Queen, 7 S. C. R. 651. LANDLORD AND TENANT. I. Opbkation of the Statute ov Frauds, 406. n. oonsteuction and operation o! Leases. 1. Leases under Short Forms Act, 407. 2. Covenant to Rebuild, 407. 3. Covenant to keep up Fences, 408. 4. Covenant Not to Assign, 408. 5. Other Cases, 408. in. Tenants at Will — See Limitation of Actions and Suits. IV. Tenants fob Life — See Estate. V. Leases by Particular Persons. 1. Mortgagors and Mortgagees — See Mortgage. VI. Cancellation of Lease, 410. VII. Surrender of Lease, 410. Vin. Rent. 1. Payable by Improvements, 410. 2. Premises Burnt, 411. 3. Eviction, 411. IX. Compensation for Improvements, 41 1. X. Crops, 411. XI. Right of Tenant to bore for Oil, 412. XII. Fixtures— &« Fixtures. Xin. Actions and Proceedings by Land- lord. 1. Covenant. (a) Imperfect Execution of Lease, 412.- (b) Damages, 412. 2. Overholding Tenant, 412. 3. Distress — See Distress. 4. Landlord'sclaimfor Rent — See Sher- iff. XIV. Action Against Landlord. 1 For False Notice of Sale, 413. XV. Tenants' power to dispute Title, 413.- XVI. Rights of Tenants in Respect of .Ex- propriation OF Land. XVII. Rights of Reversioner, 414. XVIII. Miscellaneous Cases, 414. XIX. Qualification of Tenants as Voters — See Parliamentary Elections. I. Operation of the Statute of Frauds. The plaintiff sued defendant for damages for refusing to give him possession of premises which the plaintifif alleged that defendant had verbally agreed to give him a lease of for sixteen months :- — Held, affirming the judgment of the county court, that the evidence did not shew an actual letting, but that even if it did the plaintiff must fail under the fourth section of the statute of frauds, as the action was brought in respect of an agreement for an interest in land. Moore v. Kay, 5 A. R. 261. The plaintiff was the lessee of certain premises, used as a factory, and having become insolvent the lease was forfeited by the lessor, the defen- dant, though at what particular time did not appear. The plaintiff continued in occupation,, and an arrangement was entered into, whereby one F. agreed to purchase the machinery on th& premises from the official assignee, giving the plaintiff the option to redeem it within two years. The plaintiff further obtained from the defendant an agreement, , as follows: — "Toronto, January 27th, 1880. "In the event of Thomas Carroll continuing the occupation of buUding on Hayter street, I promise and agree to give a new lease at a rental of $600 for five years ; also agree to allow, &c., (specifying certain allowances). Signed, R. S. Williams. " The defendant refused to sign a lease of the premises to the plaintiff, and an action be- ing brought for specific performance : — Held, dis- missing the action, that the agreement was not sufficient to satisfy the statute of frauds, as it did not appear from it with certainty when the term was to begin, nor to whom the lease was to be be given. Semble, that the official assignee should have been made a party, and that in any event it would have been a case for damages, not for specific performance. Carroll v. Williams, 1 0. R., Ohy. D. 150. The defendant agreed to pay the plaintiff |300 if he would procure a lease of the premises then occupied by him under lease from one W.; and adjoining the defendant's, with the privilege of making a doorway between the two houses, and- assign the lease to him. At the plaintiff's re- quest, the defendant wrote him the following; letter : "To Mr. John Bland. Dear Sir,— In. 407 LANDLORD AND TENANT. 408 reply to yours of to-day, I promise to give you $300 provided you can give me a transfer lease, with privilege to make an opening between your premises and my own. Cash to be paid on com- pletion of transfer lease. This is as I understand it. Yours most truly, T. Eaton." The plain- tiff procured a lease, and tendered an assignment of it to the defendant, who refused to accept it, whereupon the plaintiflf sued for the $300: — Held, reversing the decision of the County Court, that the defendant's letter was a sufficient memoran- dum to satisfy the requirements of sec. 4 of the "Statute of Frauds, within which the agreement fell as being a contract concerning an interest in land ; that the premises were described with •sufficient certainty, and the omission to specify the terms of the lease was immaterial, they hav- ing been left iu the plaintiff's discretion. The plaintiif, therefore was held entitled to recover. Bland v. Eaton, 6 A. E. 73. II. CONSTBTJCTION AND OpBRATIOl^^ OF LEASES. 1. Leases wider Short Forms Act. See Ermneit v. Quinn, 7 A. R. 306, p. 408. 2. Covenant to Rebuild. In a lease, expressed to be made in pursuance ■of the Act respecting short forms of leases, the covenants, in place of the words "the lessee •covenants with the lessor," were commenced with the words ' ' the said party of the second part covenants with the said party of the first part." Then followed covenants representing the statutory short form covenants, and a coven- ant to build a house on the demised premises ; and another covenant to rebuild in the event of "the building so erected during the term being •destroyed by fire. This last covenant was intro- duced by the words, " and the said party of the second part further covenants •with the said party •of the first part." The lessee, -with the assent •of the lessor, assigned the lease, and the assignee buOt in pursuance of the covenant, and executed a mortgage to the defendant, and on the buildings being burnt down re-built them. Subsequently the defendant, on default of payment, sold, under the power in Ms mortgage, to one N., who as- signed the leasehold interest in the property to the defendant, and thereafter the buildings, du- ring the occupation of the defendant, were again destroyed by fire :— Held (1) that the covenant to rebuild derived no aid from the statute, and was to be read as made by the lessee for himself alone and not for his assigns, and the decree of Blake, V. C, 27 Chy. 420, was reversed ; Spragge, C. J., Burton, and Morrison, J J. A., holding that the covenant being iu respect of something not in esse at the making of the lease did not run with the land, and did not bind the defendant: Patterson, J. A., dissenting, on the ground that the building having been erected before the assignment to the defendant, the co- venant ran with the land and bound him. Held, <2) by Spragge, C. J., Burton, and Morrison, J J. A. , that the covenant to build not being one of the statutory covenants, must be read as being made by the lessee for himself alone and not for his assigns. Per Patterson, J. A. That the short form words introductory to the cove- nants should be read as if extended in the long form upon the deed ; and therefore the words "for himself, his executors, administrators, and assigns" applied to the covenant to build, though not to the covenant to rebuild. Per Patterson,, J. A. The use of the words " party of the first," and " party of the second part," inserted iu the introductory part of the covenants was a suffi- cient compliance with the provision of the stat- ute, in respect to short forms of leases, which says that any name or names may be substituted for the words " lessor" and " lessee." Remarks on Minshull v. Oakes, 2 H. & N. 793. Emmett V. Quinn, 7 A. R. 306. 3. Covenant to Tceep up Fences. Semble, that in this country the removal of a fence on a farm from one place to another is not per se, as a matter of law, a breach of a covenant to repair and keep fences in repair ; and whether it is so or not would be a question of fact under the circumstances of each case. When thS les- sor accepted rent after such a removal -svith knowledge of it : — Held, a waiver of the forfeit- ure, if any, and that he could not afterwards claim to re-enter for the continuance of the fence in its altered position as a breach of the coven- ant. Leighton v. Medley, 1 0. R, Q. B. D. 207. 4. Covenant Not to Assign. The plaintiffs, owners in fee of certain land on the 30th October, 1866, leased it for 21 years to one B by a lease under the Short Forms Act, con- taining covenants to pay rent and not to assign or sublet without leave. By a deed of the same date, after reciting the lease, and an agreement of B. to purchase the buildings on the land for $1400, the plaintiffs conveyed the said buildings to B, his executors, administrators and assigns. B. then mortgaged the premises to H., and after- wards assigned his interest to G. , who assigned to G. H., and tt. H. assigned to M. This last assignment was objected to by the plaintiffs, who brought ejectment against the defendant D. ,who was in possession of the buildings under a verbal lease from B., for the forfeiture occasioned by such assignment, as also for non-payment of rent. While a rule nisi to set aside their verdict was pending the plaiutiflfs obtained a decree in Chan- cery, by which the conveyance to B. , so far as it conveyed the land on which said buildings stood, was declared to be a mistake, and was rectified so as to pass only a chattel interest in said build- ings, and no estate in the land : — Held, that the plaintiffs were entitled to recover for the breach of the covenant not to assign, &c., but that un- der the circumstances their recovery must be limited to the land alone and not to the buildings thereon, and that therefore they could not enter into said buildings or remove the defendant therefrom. Toronto Hospital Trustees v. Den- ham et al, 31 0. P. 203. 5. Other Oases. A verbal lease of a farm was made by a father to his son for five years, determinable by either at wiU, the son to have the use of the stock and implements on the farm, to pay $100 a year aifd support the father and the family who lived thereon, with power to the son in his discretion 409 LANDLORD AND TENANT. 410' to sell and exchange the stock and implements, so long as their value was replaced. The lease was afterwards determined by the entry of the father, who took possession of the land and the goods thereon. Subsequently, an execution cre- ditor of the son issued execution and seized the goods : — Held, Osier, J. , dissenting, that the son had only a limited interest in the goods during the term : that those not parted with by the son remained just as if no power to sell had been given, while those acquired in lieu of the ones sold or by exchange became subject to the terms of the demise ; at all events, on the determination of the lease by the father's entry, the original as well as the substituted goods became vested in him, as the goods were before the making of the lease ; and therefore the execution creditor, un- der the circumstances, had no claim on the goods. Per Osier, J. — The identical articles were not necessirily to be returned, but only in the same kind and value, and therefore the trans- action constituted a sale, and the property be- came vested in the son, and liable to be seized in an execution against him. Oliver v. Newhouse, 32 C. P. 90. By a verbal agreement, entered into in June, 1876, the plaintifl' leased to his son, M., who was residing with him, the farm occupied by them, for live years, at an annual rent of .|100, M. agreeing also to support the plaintiff and the other members of his family. By the terms of the agreement M. was to have the use and en- joyment of the stock and implements on the pre- mises, estimated to be worth $1010. It was also stipulated that M. should have power to sell or otherwise dispose of such portions of the stock and implements as he might think desirable, but at the conclusion or sooner determination of the term, he was to leave others of equal value, any surplus above that amount to be his own. Either party was to be at liberty to determine the lease at any time he thought fit to do so. In January, 1879, M. having become financially embarrassed, and finding he was losing by the farm, expressed his determination to try some other moiie of life, and said that the plaintiff might have the place and the stock, &c., thereon, if he, the plaintiff, would discharge him from any claim in respect of the rent, no portion of which had been paid. M. did accordingly abandon the place, and the plaintiff thereupon assumed the management and control thereof, and took possession of the stock, &c. M. subsequently returned to his father's and continued to reside and work on the farm for his father. In ilarch following M. executed a sur- render to the plaintiff of all his right a,nd interest in or to the farm and the crops upon it. In the month of April, for the expressed consideration of 1340, which it was alleged his father had lent him, he also executed a memorandum assigning to the plaintiff all his interest in the stock and farming implements, &c., on the place, which in- cluded, it was said, a buggy, cutter, and har- ness, which had been purchased I y M. tor hw own use. In October, 1879, the defendant sued out execution against M. under which the sheritt seized the farm stock and implements, together with the said buggy, cutter, and harness. In an interpleader proceeding by the father, in which a verdict was rendered for the plaintiff, on appeal from a rule refusing to set such verdict aside:— Held, that the lease from the father to his son had the effect of vesting th' cUs-ttel property m the latter ; and qusre, whether it was afterwards revested in the father by the writings executed by M. ; but as the question whether there had been a delivery and change of possession suffi- cient under tlie Bills of Sale Act had not been passed upon by the jury, and as some doubt ex- isted in respect of the buggy, cutter, and harness, a new trial was ordered ; costs to abide the result. S.C.,% A. R. 122. See LongU v. Sanson, 46 Q. B. 446, p. 412. VI. Cancellation as Lease. S. on the 1st August, 1868, transferred to ap- pellants (plaintiffs), as trustees of S.'s creditors, his interest in an unexpired lease he had of a certain hotel in Montreal, known as the Bona- venture building, and in the furniture. On 1st April, 1870, A. P., the proprietor, after cancell- ing, with the consent of all concerned, the sev- eral leases of the said building and premises, gave a lease direct for a term of ten years to one G., at 16,000 a year, of the building, and also of the furniture belonging to S. 's creditors, and on the same day by a notarial deed, "agreement and accord," A. P. promised and agreed to pay to appellants, as trustees of S.'s creditors, whatever he received from the tenant beyond $5,000 a year. In February, 1873, the premises were burned, with a large proportion of the furniture, and appellants received $3,223 for in- surance on fixtures and furniture, and .^791, being the proceeds of sale of the balance of the furniture saved. The lease with G. was then cancelled, and A. P., after expending a large amount to repair 'the building, leased the pre- mises to L. P. & Co. for $6,000 a year from Oc- tober, 1873. Appellants thereupon, as trustees of S's. creditors, sued respondents representing A. P., and called upon them to render an ac- count of the amount received from G. and L. P. & Co. above $5,000 a year. The Superior Court at Montreal held that appellants were entitled to what A. P. had received from L. P. & Co. beyond $5,000. On appeal to the Court of Queen's Bench (appeal side) this judgment was reversed : Held, 1. Affirming the judgment of the Court of Queen's Bench (appeal side), that the lease to G. terminated by a force majeure, and that the obligation of A. P. to pay appellants the sum of $1000 out of the said rent of $6000, ceased with the said lease. That the fact of appel- lants having alleged themselves in their declara- tion to be the ' ' duly named trustees of S's. credit- ors," did not. give them the right to bring the present action for S's. creditors, the action, if any, belonging to the individual creditors of S. under Art 19. C. G. P. L. C. soneault, 3 S. C. E. 102. VII. Sdrrendeb of Lease. See Nixon v. Maliby, 7 A. R. 371, p. 411. VIII. Bent. 1. Payable by Improvements. See Milchell v. Duffy, 31 C. P. 266, p. 211 ; Workman et al. v. Robb et al, 7 A. R. 389, p.- 4g5. 411 LANDLOED AND TENANT. 412 2. Premises Burnt. A lease of a mill, and ten acres of land adjoin- ing, for five years at the rent of f 500 for the first year and |550 for each of the four succeed- ing years, payable half-yearly in advance, con- tained the usual covenants and provisionsamongst which was the covenant to pay rent, without any exception as to fire, and to keep in repair, acci- dents by fire excepted ; and the lease concluded with the following clause : ' ' Should the mill be rendered incapable by any fire, or tempest, then the portion of rent for the unexpired portion of the term paid for in advance, to be refunded by the lessor to the lessee," but there was no pro- vision in such event for the cesser of the term : — Held, Burton, J. A., dissenting, reversing the judgment of tlie County Court, that the effect of the whole instrument was, that the destruction of the premises by fire, not merely gave a right to a return of a. proportionate part of the cur- rent half-year's rent, but put an end to the whole term, and therefore that the lessor was not en- titled to recover rent for the half year succeed- ing such destruction. Agar v. Stokes, 5 A. R. 180. 3. Eviction. In an action to recover a year's rent on a cove- nant in a lease for three years, it was shewn that the defendant had harvestedthe crops on the farm, and that they, together with the barn and stable, were destroyed by fire before the expira- tion of the year, and that he was paid the insu- rance money ; whereupon he left the farm, and the plaintifi' entered, ploughed and put in a crop. The plaiutifif afterwards applied on several occa- sions to the d'.'fendant for payment of the rent, when the defendant said he had not any money. It was shewn that a preposition had been made to leave the matter to arbitration : — Held (affirm- ing the judgment of the judge of the County Court of Peel), that the acts of the plaintiff did not amount to an eviction, that there was not evidence to support a surrender in law, and that the plaintiff was entitled to recover. Burton and Patterson, JJ.A., dubitante. Nixon v. Maltby, 7 A. B. 371. IX. Compensation poe, Impkovements. See Mason v. Macdonald, 45 Q. B. 113, p. 60. X. Ckops. By a lease from one D. to the plaintiff it was provided that if D. sold the farm the plaintiff should give up possession upon receiving six months' notice before the 1st of April, and that he should have the privilege of harvesting and threshing the crops of the summer fallow, or the work done on said fallow should be paid for at a reasonable valuation. D. afterwards sold to the defendant, and in August the plaintiff received the stipulated notice after he had prepared the summer fallow but before he had sown it. He afterwards sowed it with fall wheat, and gave up possession on the 1st of April. Neither D. nor the defendant elected to pay for the crop, and the defendant converted it to his own use : Held, affirming the judgment of the Queen's Bench, 44 Q. B. 509, that the true construction of the provision -fras, that the plaintiff was to hfve the privilege of harvesting any crops which might have been put in on the summer fallow, unless D. elected to pay for them at a valuation • that he had never parted with the property in the crop, and that he was therefore entitled to recover in trover against the defendant. Per Patterson, J. A. — If the lessor intended to pay for the work, he was bound to elect to do so when he gave the notice, or at the latest, when he resumed possession. Harrison v. Pinhieii 6 A. JR. 225. XI. Right of Tenant to Boke fob, Oil. Injunction against tenant. See Lancty v. John- ston, 29 Chy. 67, p. 346. XIII. Actions and Pbocbedings by Lasdloed. 1. Covenant. (a) Imperfect Execution of Lease. The two defendants and one C, being iu pos- session of premises as assignees of a covenant from the plaintiff for a lease, he caused a lease to the three to be drawn, which was executed by the defendants, on the representation that C. had executed a counterpart thereof, which was not the case, and the lease was never executed by him : — Held, affirming the judgment of the Com- mon Pleas, that the evidence set out in thereport, shewed that the intention of both the plaintiff and the defendants was, that C. should be a party to the lease, and that the plaintiff could not re- cover the rent diie in an action upon the covenant iu the lease. Piper v. Simpson et al., 6 A.R. 175. (b) Damages. In an action brought to reform a lease, and claiming damages for breach of a covenant :— Held, that such claim for damages was not a " purely money demand" under sec. 4of the Ad- ministration of Justice Act, R. S.O. c. 49. Oow- anloclc V. Mans, 9 P. R. 270.— Dalton, Master. See Cowling v. Dickson, 5 A. R. 549, p. 413. 2. Overholding Tenant. The defendant leased from the plaintiff the ' ' refreshment room and apartments connected therewith, " part of a railway station, and cove- nanted that no spirits of any kind should be sold or allowed to be sold in the refreshment-room," and that if he should fail, refuse, or neglect to carry out the terms of the lease, then that the lessee should, if required by the lessor, quit, leave, and absolutely vacate the premises, and the lease should terminate. " The learned judge of the County Court of York found that by a sale of spirits in the bar-room, part of the de- mised premises, the lease had been forfeited, and ordered the issue of a writ to put the landlordin possession under the Overholding Tenant's Act, R. S. 0. c. 137:— Held, affirming his decision, that the sale was a contravention of the lease that the proviso for the termination of the same extended to negative covenants ; and that the lease was therefore forfeited, and a right of entry accrued to the lessor, and that it was a case coming within the Overholding Tenant's Act. Longhi v. Sanson, 46 Q. B. 446. 413 LANDLORD AND TENANT. 414 XIV. Action Against Landlord. 1. For Fahe Notice of Sale. By a covenant in a lease of a farm from defend- ant to the plaintiff, it was provided that upon receiving six months notice from the lessor that he had sold the farm, and upon receiving com- pensation for all labour up to the date of the notice, from which he had derived no return, the lessee would deliver up possession at the end of six months, the compensation being duly paid. Defendant served the plaintiff with a notice that he had sold the farm, in consequence of which the plaintiff desisted from_ putting in crops, and other work for which he liad made preparation, and rented another farm. Upon ascertaining that the notice was untrue, the plaintiff refused ti give up possession, and sued the defendant for false representation : — Held, reversing the judg- ment of the Queen's Bench (45 Q. B. 94) that the plaintiff was entitled to recover the damages sus- tained by him in consequence of the notice. Cowling v. Dickson, 5 A. R. 549. XV. Tenant's Powek to Dispute Title. The plaintiff, an illiterate ma,n, held a bond for a deed of certain land on which a balance of purchase money was unpaid, and had acquired a title to the land under the Statute of Limita- tions but was not aware of the effect of his pos- session. The defendant, who had purchased the interest of the heirs of the original owner and vendor, and his solicitor, by representing to plaintiff that he had no title, induced him to accept a lease of the land from the defendant for two years at a nominal rent, with a covenant to yield up possession at the end of the term : — Held, that, under the circumstances, the lease must be set aside ; but even if allowed to stand, it would not constitute an acknowledgment sufficient to displace the plaintiff's title, for its effect would only be to create an estoppel during its continu- ance, miloch V. Sutton et al, 2 0. K, C. P. D. 548. P. , being the owner in fee of the land in ques- tion, died intestate in September, 1853, leaving his wife, the present plaintiff, and two daughters, who resided on the land for a short time after his death. The widow made several leases of the land, and finally leased it to M., the defend- ant's devisor, who, at the expiration of his lease, took a "second lease with a covenant to deliver up at the end of the term. He purchased the interest of one of the daughters, and a new lease, was thereupon made to him by the plain- tiff, the rent being reduced by one-third, because it was considered that the widow and daughters were each entitled to a third of the rents. Pend- ing this lease the tenant purchased the other daughter's interest, and at the expiration of the term in 1873 he refused to give up possession, alleging that he owned the land, and that the plaintiff's right to dower was barred by lapse of time:-Held, affirming the judgment of Cameron, J., that M., the tenant, having, while owner of one undivided half of the land, covenanted to give up possession to the plaintiff at the end of the term, and having got into possession under her, the defendants claiming under M. were estop- ped from disputing her right, and must restore pos- session to her before setting up an adverse title : that M. , by accepting the lease at a reduction of one-third of the rent, on his purchase of the daughters' interest, had acquiesced in the plain- tiff's claim as dowress, and was estopped from setting up the Statute of Limitations against her, and that she was entitled therefore to judg- ment for one-third of the land for life, and to mesne profits since the expiration of the lease. Patterson v. Smith, 42 Q. B. 1, remarked upon. Pyatt v. McKee, et al, 3 0. R., Q. B. D. 151. S. being indebted to the plaintiffs, entered into an agreement to mortgage to them, amongst other lands, certain lands known as the Dominion Hotel property. A mortgage was on the same day executed, but by mistake the Dominion Hotel property was omitted therefrom, and a lot owned by S. adjacent thereto inserted. The de- fendant had been the tenant of S. , and after the mortgage, attorned and paid some rent to the plaintiffs, believing them to have a title to the lands. In an action for arrears of rent : — Held, affirming the judgment of the County Court of York, that after such attornment and payment of rent, the defendant could not be heard to deny the plaintiff's title, and they being the equitable owners of the land, were entitled to recover. Held, also that the title not being open to question by the defendant, the County Court had jurisdiction. Bank of Montreal v. Gilchrist, 6 A. R. 659. XVI. Rights of Tenants in Respect of Expro- priation OF Land. See In re The W,'lland Canal Enlargement — Fitch V. McRae, 29 Chy. 139, p. 113. XVII. Rights of Reversioner. Held, that any act of the tenant without the knowledge or sanction of the landlord could only affect his interest as tenant and could not preju- dice the reversioner. Dixon v. Gross, 4 0. R. , Chy. D. 465. XVIII. MlSCBLLANEOCS OaSBS. In replevin the defendant, who had mortgaged the demised premises to one E-, claimed as land- lord, under a lease alleged to have been made by him subsequent to the mortgage, three quarters' rent, which had been paid by the tenant to E. : — Held, that the evidence, set out in the report, shewed that E. was the original and actual lessor, or, at all events that previous to the pay- ment of the rent avowed for, the tenant had at- torned to E. with the defendant's consent. McLennan v Hannum, 31 C. P. 210. B. leased certain premises to Y. , who assigned the lease to P., and sold to him the goods on the premises subject to a chattel mortgage to the plaintiff and others. P. gave a chattel mortgage to the plaintiff and others upon these goods to secure to them the purchase money thereof. On the 1st February the defendant took possession of the premises under a verbal agreement with P. , that the latter should assign the lease to him, and it was so assigned on 4th June following. 415 LETTERS. 416 There was no evidence as to whatbargtin there ■was between P. and the defendant as to the goods, but the goods remained on the premises without the request of the defendant. The plain- tifl: and his co-mortgagees subsequently took possession of the goods under their chattel mortgage ; but on the same day, before they were removed, the landlord seized them for rent, a portion of which was due before defendant took possession. Upon the promise of the plaintiff to pay the rent the landlord withdrew. The plaintiff having refused to keep his promise by paying the rent, the landlord brought an action against him and compelled payment. The plain- tiff now sued the defendant to recover the amount so paid : — Held, that, there being no privity of contract or estate between the defendant and the plaintiff, and the goods not having been originally placed in the premises at the tenant's request, and having in fact been in the possession of the plaintiff when seized, the defendant was not bound to protect them against seizure for rent, which he was not shewn to have been liable for : that the plaintiff's payment therefore was voluntary, so tar as concerned the defendant, and he could not recover. Herring v. Wiho7i, 4 0. K., Q. B. D. 607. Eight to maintain action for injury to lateral support of building. See McCann v. CMsholm, 2 O. E. 506, infra. LATEEAL SUPPOET. The plaintiff was entitled to the lateral sup- port of the defendants' land, in which they made excavations for the purposes of a, rink, whereby the plaintiff 's land was damaged : — Held, that in substituting artificial support for the natural support of the soil which had been removed, the defendants might constiuct it Ojf any material, provided it was a sufficient support for the pur- pose, and that they continued to maintain the plaintiff's land in its proper position. Held, also, that in estimating the plaintiff's damages, no sum should be allowed for damages to arise in future. The damages were assessed at $40, but judgment was given for the restoration of the plaintiff's land : — Held, that the plaintiff was entitled to full costs. Snarr v. The Oranite Curling and Slating Co., 1 0. E., Chy. D. 102. Held, that an action against the proprietor of adjoining land for damage done to a building by the removal of the lateral support afforded by such adjoining land, may be maintained by the tenant of the building. McCann v. Chishvlm, 2 O. E., C. P. D. 506. The plaintiff, tenant for years of the defen- dant S., sued for loss of use of a tenement in con- sequence of the fall 'of the wall thereof, which was caused by the excavation of the adjoining lot for a cellar by the defendant H. who owned it. H. had excavateo his land in some places to within a few inches of the dividing line, close to which the house in question stood. This house had been built by S. in 1854, when he had a lease of the lot for ten years, which gave him the right to remove it at the expiration of the term, upon oak planks laid about one foot under the ground, in 1866, however, he acquired the fee, and in 1870, he also beoi me owner' of the lot now owned by H., and held it for a year, when heconveyedittoE.H.from whomH. derivedtitle. There was no evidence to shew that H. knew that the house was receiving more support from his land than it would have required if it had been constructed in the ordinary way : — Held thatjowing to the unity of seizin of S., there had not been twenty years' continuous enjoyment of the support as an easement ; but that even if there had been, no such acquiescence in the use of the servient tenement had been shewn as to- justify the presumption that an easement had been acquired by grant : — Held, also that when S. sold H.'s lot, there was no implied reservation of the right of support for the house : — Held, also, reversing the judgment of the Queen's. Bench, 44 Q. B. 428, that under the circumstan- ces there was no evidence of negligence in fact, and that the plaintiff was therefore not entitlei to recover. Backus v. Smith et al., 5 A. R. 341. See also Walker v. McMillan, 6 S. C. R. 241 p. 97. LAW STAMPS. Where an examination of parties pursuant to- E. S. 0. 0. 50, s. 161, takes place before a deputy clerk of the crown; though not designated in the order as acting in his official capacity, the fees for such examination are payable in stamps, and not in money. Denmark v. McConaghy, 8 P. E.. 136.— Osier. LEASE. I. Oe Chattels, 416. II. Oe Fishery, 416. in. Oe hjLSB — See Landlord and Tenakt.. IV. Of Tolls— 5ce Way. I. Ob Chattels. See Oliver v. Newhouee, 32 C. P. 90 ; 8 A. E. 122, pp. 409, 410. II. Oe Fishery. See The Queen v. Mohertsm, 6 S. C. R. 52, p. 123. LEGACY. See Will. LEGISLATIVE ASSEMBLY. See Constitutional Law — PABLiAMBNiABr Elections. LETTERS. I. Oe Administration — iffee Executors iND' Administrators. II. Contracts by— iSce Contract. 417 LIEK. 418 III. Patent. 1. For Lands — See Crown Lands. 2. For Inventions — See Patent or Inven- tion . IV. KooATOEY — See Evidence. LIBEL. See Defamation. LICENSE. I. To CUT Crown Timber ■ Lands. n. Cabs — See Cabs. III. Ferries — See Ferry. rV. Taverns and Shops- Shops. See Crown -See Taverns and Power of municipality to impose a license tax on commercial travellers discriminating between resident and non-resident merchants, traders, &c. See Jonas v. Gilbert, 5 S. C. R. 356. From minister of marine and fisheries. See The Queen v. Robertson, 6 S. C. K. 52, p. 123. LICENSE COMMISSIONERS. See Taverns and Shops. LIEN. When it Exists, 417. Mechanics' Lien Acts. 1. On Mortgaged Property, 417. 2. Registration of Lien, 418. 3. Other Oases, 419. Attorneys Lien — See Attorney and Solicitor. rV. Vendor's Lien — See Sale of Land. I. n. ni. I. When it Exists. Lien of secured creditor under R. S. O. c. 107, s. 30. See Chamber len v. Clark et at, 1 O. R. 135, p. 271. See Troop v. Hart, 7 S. C. R. 512. II. Mechanics' Lien Acts. [See 47 Vict. c. 18.] 1. On Mortgaged Property. A mortgagee filed a bUl for sale, making certain lien-holders under the Act parties defendants therein, alleging that the work, by virtue of which their liens arose, was commenced after the registration of his mortgage :— Held, that the 27 lien-holders should have been made parties in the master's office ; and plaintifi"s costs of mak- ing them defendants by bill were disallowed on revision of taxation. Jackson v. Hammond et al., 8 P. R. 157. Thorn, Taxing Officer. In order to preserve the lien which the Mech- anics' Lien Act creates in favour of a contractor performing work on a house or other building for the owner, it is necessary to register the same during the progress of the work, and as soon as the claim arises, or it may be postponed to a mortgage created subsequently, but registered prior to such lien. Proudfoot, V.C. , dissenting. Hynes v. Smith, 27 Chy. 150 ; 8 P. R. 73. The plaintiffs instituted proceedings to enforce a mechanics' lien assigned to them, which had been duly registered, and a suit thereon prose- cuted. The plaintiffs claimed to be entitled to priority in respect of such lien over the claim of a mortgagee — ^whose mortgage was prior to the contract under which ' the lien arose — for the amount by which the selling value of the pre- mises had been increased by the work and ma- terials placed thereon. The assignee of the mortgagee demurred, on the ground that he was an owner of the land, within the meaning of the Act, R. S. 0. c. 120, s. 2, and that proceedings had not been taken against him within the time specified by the Act : — Held, that he was not such an owner, not being a person upon whose request or upon the credit of whom, &c., the work had been done. Bank of Montreal v. Haff- neretal, 29 Chy. 319. Where B. gave a mortgage to W. , and after- wards employed G. to do certain work and fur- nish materials on the property mortgaged : — Held, that G. was entitled under R. S. 0. c. 120, s. 7, to a lien for the amount owing for the said work and materials in priority over W.'s mortgage in respect of the increased value of the said property by reason of the said work and. materials : — Held, also, that although W. had previously commenced proceedings under an al- leged lien in respect of the said property against B., subsequently to the commencement of which proceedings the work was done in respect of which the present lien was now claimed, it was not necessary that G. should have been made a party to the former action, and the fact tliat G. was not included in the master's report in that action, as among those holding liens against the property in question, was no bar to his maintain- ing this one. Each lien under the Mechanics'' Lien Act stands on its own footing, every lien- holder being entitled to security upon the en- hanced value arising by reason of his work and materials. Bank of Montreal et al. v. Haffner et al, 3 0. R., Chy. D. 183. 2. Registration of Lien. The plaintiffs delivered and set up for the de- fendant a boiler and engine, supplied by them- selves, in September, 1878, upon certain terms of credit, which expired on the 25th AprU, 1879. Registration of the lien was effected on the 23rd December, 1878, and a bill to enforce the lien was filed on the 31st May, 1879 :— Held, that the effect of the delay in the registration of the lien was, that the lien under the Act had ceased to exist, notwithstanding the plaintiffs had done 419 LIGHTS. 430 some immaterial work upon the machinery late in December, 1878 ; the thirty days within which the registration was to be effected being to be computed not from the time such alterations were made, or the defects in the machinery were remedied, but from the time when it was sup- plied and placed, i. e., in September, 1878. Neill V. Carroll, 28 Chy. 30. Affirmed on rehearing. lb. 339. QuEere, as to the effect of the Act when the credit does not expire until after thirty days from the completion of the work, and there has been no registration of lien. Ih. Where G. claimed, under the Mechanics' Lien Act, a lien in respect of materials furnished, by virtue of an assignment from the original fur- nisher thereof : — Held, G. had a right to register a claim for the same under the said Act, but the affidavit of verification required by sec. 4, sub-s. 2, must be made by himself, and not by the as- signor. Grant v. Dutm et al., 3 0. E., Chy. D. 376. See Hynes v. Smith, 27 Chy. 150, p. 418; Mc- Pherson et al. v. Gedge el al, 4 O.R. 246, p. 420. 3. Other Cases. The plaintiff furnished materials to G. for a building which G. had contracted to erect for the defendants. After the defendants had paid G. all there was due to him, and after G. had abandoned his contract, the plaintiff notified the defendants of his unpaid account against G. for such materials ; and filed a bill to enforce hia lien more than 90 days after the materials had been furnished. A demurrer for want of equity was allowed, with costs ; and— Semble, that even if the bill had been filed in time, there would not have been any lien. Briggs v. Lee, 27 Chy. 464. Remarks upon the various provisions of the Mechanics' Lien Act. lb. In a building contract for the erection of a church, the contractor agreed with the building committee to settle with all other persons doing work upon or furnishing materials for the con- struction thereof, and stipulated that neither he nor they should have any lien upon the building for their work or materials : — Held, binding on the sub-contractors, though made without their knowledge or assent Forhan v. Lalonde, 27 Chy. 600. It was also stipulated that 20 per cent, of the contract price should not be payable until thirty days after the architect should have accepted the work, and that the balance of the contract price so to be retained should not be payable until all .sub-contractors were fully paid and settled with : — Held, (1) that no trust was thereby created in favour of the sub-contractors as to the sum agreed to be retained ; and the contractor hav- ing assigned his interest in the contract to a third party, and the committee having waived their right to insist that the sub-contractors -should be paid : — Held (2) that the assignee was entitled to receive 20 per cent, to the exclusion of the sub-contractors, lb. Where a contractor for the building of a house, made default in carrying on the work, and in <:onsequence, the owner, acting under a clause in the contract to that effect, dismissed him, and agreed verbally with a sub-contractor, who had been employed by the contractor, that if the sub- contractor would go on and finish the work, he, the owner, would pay him ; — Held, that the sub- contractor was entitled to a lien for all work done under such agreement as a "contractor," and as to such work he was no longer in the position of a sub-contractor. Petrie v. Hunter et al. ; Guest et al. v. Hunter et al. , 2 0. K., Chy. D. 233. Under sec. 15 of the Mechanics' Lien Act, E. S. 0. c. 120, suits brought by a lienholder shall be taken to be brought on behalf of all lieu- holders of the same class ; and in cise of the plaintiff's death, or his refusal or neglect to pro- ceed, the suit may, by leave of the court, be prosecuted by any lienholder of the same class. McPherson ei al. v. Gedge, et al., 4 0. B.., C. P. D. 246. A number of unregistered Uenholders brought an action under the Act to enforce their liens against one G. , which proceeded to the close of the pleadings, and was then dismissed with the plaintiffs' assent. P., the assignee of a regis- tered lienholder, relying on the action, took no steps to enforce his lien or to register a certifi- cate within the 90 days, under sec. 21. On be- ing informed of the dismissal of the action, he applied to be allowed to intervene as plaintiff and to prosecute the suit on his own behalf :— Held, Gait, J., dissenting, reversing the judg- ment of Hagarty, C. J. , which affirmed the judg- ment of the master in chambers, that the ap- plicant should be allowed to intervene and pro- secute the action ; and that the applicant was of the same class as the plaintiffs, in that they aU contracted with or were employed by G. Lienholders "of the same class" are those who have contracted with the same person, whether their liens are registered or not. Per Gait, J. The applicant was not of the same class, as the plaintiffs, for he was a registered lienholder and came within sec. 21, whereas they were unregis- tered and came within sec. 20 ; and the 90 days having expired the applicant's lien was gone, so that even if the plaintiffs' suit were still pending the applicant could not have become'a party to it. lb. LIFE ASSURANCE. See Insurance. LIFE ESTATE. See Estate. LIGHTS. Where a person has enjoyed an easement by having windows overlooking the lands of an ad- joining proprietor for any period, even one day, over nineteen years, he cannot be deprived there- of unless he subsequently submits to an inter- ruption of such easement for a period of twelve months. The propriety of such a rule in the towns of this province remarked upon and questioned. 421 LIMITATION OP ACTIONS AND SUITS. 422 The case of Plight v. Thomas, 11 A. & E. 688 ; 8 CI. & P. 231, considered and followed. Burn- ham V. Oarvey, 27 Chy. 80. See 43 Vict. c. 14, s. 1. JLIMITATION OP ACTIONS AND SUITS. I. Claim to Eealty. 1. Operation of the Statute, 421. 2. Nature and Proof of Possession, 421. 3. Possession as against the Crown, 423. 4. Sight of Crown to plead Prescription, 5. Tenants in Common, 423. 6. Tenants at Will, 424. 7. Mortgagor and Mortgagee, 425. 8. Possession as against JSquitable Tenant, 427. 9. Servant or Caretaker, 428. 10. Possession By or Against Infants, 429. 11. Adverse Possession, 429. 12. Exclusive Possession, 430. 13. Actual and Constructive Possession, 431. 14. Mistaken Boundaries, 431. 15. Entry or Claim, 432. 16. Discontinuance, 432. 17. Acknowledgment of Title, 433. 18. OtUr Cases, 434. II. Claim to Easements, 436. III. Pbesoital Actions, 437. I. Olatm to Realty. 1. Operation of the Statute. Where a rightto relief in respect of lands arises -during the progress of a cause, and more than ten years are allowed to elapse before acting thereon, such right will be barred by " The Real Property Limitation Act," R. S. 0. c. 108. Ross V. PoTneroy. 28 Chy. 435. Operation of statute in case of lands taken by railway for right of way. See Thompson v. The Canada Central By. Co., 3 0. E. 136. 2. Nature and Proof of Possession. Where a vendor was not in possession of lands, the fact that for upwards of ten years he had paid the taxes on the property is not such a pos- session as is requisite to bar the right of the lowner under the Statute of Limitations. In re -Jarvis V. Cooi:, 29 Chy. 303. In an action of trespass quare clausum fregit for the purpose of trying the title to certain land adjoining the city of Belleville, the defendants pleaded not guilty ; and 2ad, that at the time of the alleged trespass the said land was the freehold of the defendants, M. E. MoG. and J L. McC, and they justified breaking and entering the said close in their own right, and the other defendants as their servants, and by their command. The case was tried by Armour, J., without a jury, and he rendered a verdict for plaintiff with |30 damages. The judgment was set aside by the Court of Common Pleas, and they entered a verdict for the defendants in pursuance of R. S. 0., c. 50, s. 287. On appeal, the Court of Ap- peal for Ontario reversed this judgment, and re- stored the verdict as originally found by Armour, J. The defendants thereupon appealed to the Supreme Court ; — Held, that the appellants (de- fendants), on whom the onus lay of proving their plea of liberum tenementum, had not proved a valid documentary title, or possession for twenty years of that actual, continuous, and visible character necessary to give them a title under the Statute of Limitations ; therefore plaintiff was entitled to his verdict (Henry, J., dissent- ing.) McConaghy v. Denmark, 4S. C. R. 609. Actual occupation of land is not essential to give a right to maintain trespass by one who has the legal title. It is sufficient that he enter upon the land so as to put himself in legal possession of it : — Held, that putting up boards on the land by the owner, stating that the land was for sale, was a sufficient entry upon his part to vest the legal possession in him to enable him to maintain formally an action of trespass. Donovan v. Her- bert, 4 0. R. , C. P. D. 635. In 1853 M., the owner of the land in question, conveyed it to P. D., who in 1859 conveyed it to L. D. Neither P. D. nor L. D. ever entered into occupation of the lot, which was a vacant one. In 1855 the defendant, who was a builder, with the knowledge and consent of P. D. , used the lot for depositing his building materials on, and had continued to do so ever since, but with the like knowledge and assent of L. D. after his purchase. In 1876 L. D. fenced the lot, leaving a gate for defendant's convenience ; he also planted a small portion of it, and allowed soil to be taken from it to level it. In 1877 P. D. was declared in- solvent, and S. , the assignee in insolvency, filed a bill in Chancery to set aside the deed of 1859 from P. D. to L. D., as having been made in fraud of creditors. In 1879 defendant contracted to purchase the lot from L. D. for $2,400, on which he paid |300. In 1880 a decree was ob- tained setting aside the deed of 1859, which was affirmed on rehearing. This was affirmed on ap- peal, defendant being surety for L. D. for the costs of the appeal. He had never paid any taxes on the lot. In 1880 nine feet of the lot were sold for taxes, and defendant became the pur- chaser ; but it was redeemed ; — Held, under these circumstances the defendant's possession was not such as to give him a title under the Statute of Limitations ; that the plaintiff was not shewn to have been dispossessed, or to have discontinued the possession : that the agreement by defendant to purchase was evidence to pre- clude him from setting up a title by possession again&t the plaintiff, as was the fact of his having become security for L. D. in supporting his, L. D.'s, title. lb. The defendant, husband of one of several ten- ants in common, being in possession of the joint 423 LIMITATION OF ACTIONS AND SUITS. 244 estate, pnrchased the same at sheriffs sale, of which fact the co-tenants were aware, but took no steps to impeach the transaction until after such a lapse of time as that under the statute the defendant acq^uired title by possession. The court, on a bill filed by the other tenants in common asking to set aside the sheriffs sale and deed on the ground of fraud and collusion be- tween the defendant and execution creditor, negatived such charges, and dismissed the bill, with costs. Whether the sale under execution was operative or not, the defendant having held possession ever since, claiming the premises as absolute owner, the title by virtue of the statute of limitations ripened into a title in his favour. Kennedy v. Bateman, 27 Chy. 380. In order to obtain convenient access to the up- per rooms of their house the plaintiffs constructed a wooden platform, stairway and landing, on the outside of the house on the defendant's land. This structure was composed of planks laid upon blocks or scantling resting upon the ground, but the head of the stairs was supported upon posts which rested upon the ground. The platform and stairway were open to every one, including the defendant, and there was no bar or gate to prevent defendant from entering on his property. The defendant took no proceedings against the plaintifiFs until the expiration ot ten years : — Held, reversing the decree of Spragge, C. , 26 Chy. 503, that the plaintiffs had not such posses- sion of the land covered by the structure as by force of the Statute of Limitations to vest in thtni a title in fee simple ; but that even if the statute had commenced to run it was stopped by the fact, as stated in the evidence, that during the ten years the defendant had temporarily taken up the platform, and used the land for his own purposes. It was held on the evidence that this was not shewn to have been done by the plain- tiffs' permission ; hut Quaere, per Patterson, J. A. , whether if it had been it would not still have interrupted the operation of the statute. Oriffith et al. V. Brown, 5 A. R. 303. 3. Possession as Against the Crovm. The Statute of Limitations was held not to be a bar to an action though brought by the crown in its capacity as trustee of the landjn question in the suit. Kegina v. Williams, f9 Q. B. 397, followed. Attorney-General \. The Midland E. W. Co., 3 0. E., Chy. D. .511. 4. Right of Crovm to Plead Prescription. Held, that the Statute of Limitations is pro- perly pleadable under sec. 7 of the Dominion Peti- tion of Eight Act, 1876. Tylee v. The Queen. 7 S. C. E. 651. See also Chevrier v. The Queen, 4 S. 0. R. 1. 5. Tenants in Common. Where one of several tenants in common enters and dispossesses a trespasser he is, as regards his co-tenants, in possession simply as any stranger would be ; and such possession does not enure to the benefit of his co-tenants. Per Cameron, J. The act of one Co-tenant in so taking possession would be by virtue of his legal estate, and his so doing would enure to the benefit of his co- tenants ; thus giving a fresh starting point for the statute to begin to run against them. Shep- herdson v. McCuUough, 46 Q. B. 573, p. 432, remarked, upon and as applied to the facts of this case, approved. Harris v. Mudie, 7 A. R. 414; 30 C. P. 484. 6. Tenants at Will. An entry upon land under assertion of right, and verbal submission by the occupant, and con- sent to remain as tenant to the owner, create a new tenancy at will, and give a fresh point of departure under the Statute of Limitations. Where the attention of the jury had not been sufficiently called to the question whether this took place on the premises, a new trial was- granted. Smith v. Keovm, et at, 46 Q. B. 163. John C, being owner in fee of the land in question, sometime after 1854 placed his brother James C. in possession, rent free. In 1867 de- fendant, having married a daughter of James C, went to live with the latter and occupied part of the house, at the instance of John C. , who wished his niece to remain in the house and take care of her infirm mother. John C. died 2nd Septem- ber, 1874, having devised the land to the plain- tiff James C. died in 1873 or 1874, and his wife about a year later, and the defendant and wife continued in possession. In 1875 one G. ' went to the house with the plaintiffs husband, with the view of renting it, when defendant shewed them over the house, and said if it was going to be rented he would rent it himself and pay as much for it as any one, and he spoke of buying it. The plaintiff having brought this, ejectment in March, 1879, : — Held, that plaintiff was entitled to recover as against defendant. Per Hagarty, C.J. — The defendant was never tenant to John C. during the lifetime of James C. and his widow; and the statute did not begin to run in his favour till a year after the death, of the latter. Per Armour, J. — The entry of the defendant in 1867 by John C .'s authority determined the ten- ancy at will of James C. , theretofore existing, anda. new tenancy at wiU by defendant and James C. thereupon began, which was determined by the death of James C.'s widow, when defendant became tenant at sufferance to the plaintiff, and her entry, by her husband, with G., acquiesced in by the defendant, was a sufficient entry to- create a new tenancy at will and stop the run- ning of the statute. Cooper v. Hamilton, 45 Q. B. 502. Whenever a new tenancy at will is created, this forms a fresh starting point for the running of the Statute of Limitations. Therefore where A. was let into possession of certain lands as ten- ant at will to B., in 1870, and B. died in 1S78, having devised the lands to trustees in trust for A, for life, and then in trust for C, which devise A. in no way refused, but continued in possession ostensibly as before, and now claimed title by length of possession against the said trustee? and 0. : — Held, that A. must be presumed to have accepted the devise, and his retention of posses- sion must be attributed to his rightful title under the devise ; and therefore even if A. coidd be considered as tenant at will to his trustees, and capable of acquiring title by possession as against them and C, which under E. S. 0. c. 108, s. 6, 425 LIMITATION OF ACTIONS AND SUITS. 426 siib-ss. 7, 8, he could not, yet on the death of B. a new tenancy at will was created, and a new period commenced for the running of the statute, which had not at the time of action brought, continued long enough to give the plaintiff title by possession. Re Defoej 2 0. R., Ohy. D. 623'. R., in 1867, permitted the defendant L. to •occupy certain lands upon an alleged agreement that in lieu of rent he should make improvements such as were required for L. 's trade, but not de- fined as to extent or value, of which R. would obtain the benefit, and that L. would give up possession whenever R. required it — there being no agreement for any term. R., between 1867 and 1879, went occasionally on the place and ^apoke with L. about the improvements, telling Mm to make such improvements as he chose. In 1879, after L. had become financially involv- ed, he restored the possession of the premises to R. :— Held (Burton, J. A., dissenting), that L. could not have set up a title under the Statute of Limitations ; nor could the plaintiffs, his cre- ditors, claim the land as having been so acquired by him. Per Spragge, C.J., and Osier, J. — The entries of R. in going upon the land, were^suffi- oient to prevent the statute from running : and per Spragge, C.J. , R. might be said to have been in receipt of the " profits " of the land, through its increase in value by reason of the improve- ments. Per Patterson, J. A. — The evidence shewed that by the successive improvements made as they were, the relation of landlord and tenant was continued or created anew, even thiiugh the improvements to be made were not .strictly in Ueu of rent, nor could be treated as profits of the land. Per Burton, J. A. — L. upon the evidence entered as tenant at will ; there was no receipt of "profits " within the meaning .of the statute ; and no entry inconsistent with the lessee's title ; and L. having acquired a title by possession the land was liable for his debts. If L. had acquired a title under the statute, his giving up possession again to R. would not re- vest the estate. Workman et al. v. Eobb et al, 7 A. R. 389 ; 28 Chy. 243. See Ryan v. Ryan, 5 S. C. R. 387, p. 429. 7. Mortgagor and Mortgagee. The plaintiffs, the administrator and heirs-at- law of a mortgagee, filed their bill against the mortgagor on or before the 20tb October, 1864. After service, and on loth November, 1864, an agreement was entered into between the parties, whereby the plaintiflfs took notes for the mortgage money, the 1st payable 1st June, 1866, and the others in the six following years, whereupon pro- ceedings on the mortgage were suspended. The defendant made a payment in June, 1867, and died in 1869. The notes were not paid. The suit on 29th August, 1879, was revived agamst the infant heir of the mortgagor :— Held, that the claim was barred by R.S.O. c. 108, s. 23; but m case of the plaintiffs desiring to obtain the fruits of a judgment recovered against the original de- fendant, the bill was retained for a year as against the infant defendant, as he would be a proper party in a proceeding against the personal repre- •sentative of his ancestor to enforce the judgment. Ross V. Pomeroy, 28 Ohy. 435. The possession of a stranger which has not lipened into a title as against the owner of land, will not enure to the benefit of him so in posses- sion as against the mortgagee, so long as his in- terest is regularly paid by the owner. Ohamber- lain V, Olark, 28 Chy. 454. When the right of action for entry or fore- closure is taken away by virtue of B. S. 0. c. 108, 3. 15, the title itself of the mortgagees is ex- tinguished, and the right of action wholly dis- appears. Court V. Walsh, 1 0. R. , Chy. D. 167. A mortgagee who has suffered the statute to run before he asserts his right of entry cannot, by afterwards getting possession of the property, revive his title to it, but he is in as a mere tres- passer. Jb. The insolvency of the mortgagor and the ap- pointment of an assignee in insolvency, does not suspend the running of the Statute of Limita- tions, so as to preserve the lien and security of the mortgagee on the land mortgaged. Ih. The remedy by way of foreclosure or sale in mortgage suits is a proceeding to recover lands within the meaning of R. S. 0. c. 108, ' s. 4. Therefore when a suit to foreclose a mortgage was commenced ten years and eight months after the date of the default in payment, and the plain- tiff claimed payment of the mortgage debt, pos- session and foreclosure : — Held, that the only relief to which the plaintiff was entitled, was judgment upon the covenant for payment. Flet- cher V. Rodden, 1 0. R., Chy. D. 155. Where mortgagees in fee in possession execu- ted a deed purporting to ' ' convey, assign, re- lease, and quit claim" to the grantees, "their heirs and assigns forever, all and singular," the mortgaged land, habendum " as and for all the estate and interest " of the grantors ' ' in and to the same " : — Held, sufficient to pass the fee to the grantees : — Held, also, the benefit of the pos- session held by the mortgagees, vrithout any written acknowledgment of the title of the mort- gagor, passed by the above deed to the grantees, and coupled with their own subsequent posses- sion for the necessary period conferred on them an absolute title to the land by virtue of R.S.O. c. 108, ss. 15, 19. Bright v, McMurray, 1 O. R., Chy. D. 172. C, being the locatee of the Crown, in 1860, mortgaged the north-half and the south-half of the land by two mortgages to McM. In 1865 he died. In 1870 and 1874, McM. assigned the mortgages respectively to D. In 1875 the patent of the north-half issued to one Campbell, who paid the purchase money due to the Crown on the whole lot, at the request of M. and A., the widow and son of C. , and the patents of the east and west halves of the south-half, issued to M. and A. respectively, without any intention (as shewn by the memorandum in the Crown Lands Department) to cut out the right, if any, of D. under his mortgage. In 1876, D., under the power in his mortgages, sold to L. , who, in 1876, made a mortgage to the plaintiff, on which this suit was brought. M. and A. had, in the mean- time, always occupied the land without paying principal or interest, and they claimed title by possession :— Held, affirming the judgment of the Court of Chancery, 27 Chy. 253, that M. and A. had, under the Statute of Limitations, acquired a, title by possessibn. Watsons. Lindgay et al, 6 A. R. 609. 427 LIMITATION OF ACTIONS AND SUITS. 428- H., 'being seised of land subject to a mortgage to L., dated 14th October, 18(53, and to one M., dated 12th January, 1864, made an assignment to W. on 22nd November, 1866, under the In- solvent Act of 1864. On 28th January, 1868, he obtained his discharge. On 27th January, 1869, he obtained from M. an assignment of M's mort- gage ; and on 3rd May, 1869, he made a convey- ance under the power of sale in this mortgage to F. H. to the use of his, the grantor's wife, his co-defendant, the consideration mentioned being |250, which was credited on the mortgage. On 12th April, 1869, L. assigned his mortgage to M. & B., who, on 28th March, 1873, assigned it to W. In 1879 H., having procured assignments to himself of most of the claims against his in- solvent estate, presented a petition signed by himself to compel W. to wind it up. He alleged that M. & B. held the L. mortgage in trust for the estate, and asked to have the estate realized knd distributed among the creditors. A sale was accordingly had on 20th April, 1880, of all the right, title, and interest of the insolvent in the land ; and the advertisement further stated that the purchaser would acquire only such title as the vendor had as assignee. H. attended at the sale, and objected to the sale of the land, and bid for the same ; but the plaintiff became the purchaser, and took a conveyance from W. on 4th February, 1881. Most of the purchase money went to H. as assignee, for the claims against his estate. H. and his wife had remained in un- disturbed possession since his discharge in insol- vency : — Held, reversing the decision of Osier, J., that upon the evidence, set out in the report of the case, the possession of H. and his wife must be considered to have been the possession of H. ; that the title of the first mortgagee was not extinguished, and that defendants were estop- ped by their conduct from disputing the plain- tiff's title. Miller v. Hamlin etux, 2 0. K., y. B. D. 103. The equity of redemption is an entire whole, and so long as the right of redemption exists in any portion of the estate, or in any of the per- sons entitled to it, it enures for the benefit of all, and the mortgagee must submit to redemp- tion as to the whole mortgage. Hence, in a re- demption suit, where the mortgagor died intes- tate in 1858, leaving children, the plaintiffs therein, some of whom, if alone, would have been barred as to redemption by R. S. O. c. 108, ss, 19, 20 : — Held, since some of the children had not been adult for five years preceding the filing of the bill, none of the plaintiffs were barred by the statute. R. S. 0. c. 108, s. 43 applies to mortgage cases as well as other cases. Hall v. Caldwell, 8 TJ. C. L. J. 93 followed. Forster v. Patterson, L. R. 17 Ch. D. 132, and Kinsman v. Rouse, L. R. 17 Ch. D. 104 not followed. Fauldsy. Harper, et al, 2 0. E., Chy. D. 405. Reversed on appeal. See 20 C. L. J. 145. See Hooker v. Morrison, 28 Chy. 369, p. 433 ; Slater v. Mosgrove, 29 Chy. 392, p. 436 ; Miller V. Brown, 3 0. R. 210, p. 434. 8. Possession as against Equitable Tenant. Held, (affirming the judgment of Spragge, C, 28 Chy. 221,) upon the facts there stated, that the tenant of an equitable tenant for life, in, set- ting up the Statute of Limitations against the equitable remainderman, could not be allowed to compute the time during which he had been in possession prior to the death of the tenant for life. Per Burton, J. A.^The owner of an equit- able estate cannot, notwithstanding the Judica- ture Act, proceed against a trespasser in liis own name. He is still bound to sue in the name of the trustee. The provisions of the Statute of Limitations as regards equitable estates consider- ed. Per Patterson, J. A. — Under the circum- stances appearing in this case the plaintiff wa& entitled to recover in respect of the equitable estate. Adamson v. Adamson, 7 A. R. 592. 9. Servant or Caretaker. B. entered into possession of a small portion of a lot of land which he had fenced and cultivated, the lot being in a state of nature, and upon the agent of the owner discovering B. to be so in possession suffered B. to remain there, he agree- ing to look after the property in order to protect the timber ; and B. subsequently assumed to sell the whole to one J. , his grandson. On a bill filed by the owner, the court (Spragge, 0. , ) held that under the circumstances the Statute of Limitations did not run in favour of B. so as to give him a title by possession, and that J. was not entitled to the benefit of the defence of ' ' purchase for value without notice, " he having omitted to allege that B. was seized ; that J. be- lieved he was seized ; that B. was in possession, and that the consideration for the transfer by B. to himself had been paid. Subsequently, and in 1878, the plaintiff's agent again visited the pro- perty, and obtained B. 's signature to a memo- randum agreeing to hold possession and look after the property for the plaintiff : — Held, a sufficient recognition of the title of the plaintiff, and that the defendants could not piit him to- proof thereof. Greenshields v. Bradford, 28 Chy. 299. The plaintiff 's father, who lived in the town- ship of T. , owned a block of 400 acres of land, consisting respectively of lots 1 in the 13th and 14th concessions of the township of "W. The father had allowed the plaintiff to occupy 100 acres of the 400 acres, and he was to look after the whole and to pay the taxes upon them, to- take what timber he required for his own use, or to help him to pay the taxes, but not to give any timber to any one else, or allow any one else to take it. He settled in 1849 upon the south half of lot 1 in the 13th concession. Hav- ing got a deed for the same in November, 1864,. he sold these 100 acres to one M. K. In December following he moved to the north half of this lot No. 1, and he remained there ever since. The father died in January, 1877, devising the north half of the north half, the land in dispute, to the defendant, and the south half of the north half to the plaintiff. The defendant, claiming the north 50 acres of the lot by the father's will, en- tered upon it,, whereupon the plaintiff brought trespass, claiming title thereto by possession. The learned judge at the trial found that the plaintiff entered into possession and so continued^ merely as his father's caretaker and agent, and he entered a verdict for the defendant. There- was evidence that within the last seven years, before the trial, the defendant as agent for the father was sent up to remove plaintiff' off the 429 LIMITATION OF ACTIONS AND SUITS. 430 land, because he had allowed timber to be taken off the land, and that plaintiff undertook to cut no more and to pay the taxes and to give up pos- session whenever required to do so by his father : —Held, reversing the judgment of the Court of Appeal for Ontario, (4 A. R. 563, ) which had re- versed that of the Court of Common Pleas (29 C. P. 449, ) that the evidence established the crea- tion of a new tenancy at will within ten years. Per Gwynne, 3. That there was also abundant evidence from which the judge at the trial might fairly conclude as he did, that the relationship of servant, agent, or caretaker, in virtue of which the respondent first acquired the possession, con- tinued throughout. Eyany. Ryan, 5 S.C.R. 387. 10. Possession By or Against Infants. Where a person enters upon the lands of in- fants, not being a, father or guardian, or stand- ing in any fiduciary relation to the owner, and remains in possession for the statutable period, the rights of the infants will be barred. Quin- ton V. Frith, Ir. R. 2 Eq. 415, considered and not followed. In re Taylor, 28 Chy. 640, rever- sing S. C, 8 P. E. 207. Trustees, under a, will executed by a woman who afterwards married, received on behalf of an infant devisee the rent of certain lands from the tenant. When the infant came of age the tenant paid the rent to her. Subsequently and after more than ten years had expired, since the trustees first received the rent, the heir-at-law of the testatrix claimed the land, on the grounds that the will was revoked by the subsequent in- ter-marriage of the testatrix and that the Statute of Limitations did not run for or against an in- fant : — Held (without deciding as to the revoca- tion of the will), that the possession of the trus- tees was the possession of the infant, and she thus acquired a good statutory title to the land. lie Oof, 8 P. R. 92.— Stephens, Beferee.—Froudfoot. See Huglies v. Hughes et al, 6 ArR. 373, p. 436. 11. Adverse Possession. The testator by his will, executed in 1840, gave the annual income of all his real estate to his wife, for the support of herself and children dur- ing widowhood ; and after her death or marriage, and the youngest child attaining majority, the property was to be divided. He appointed his widow and eldest son executrix and executor, both of whom continued to reside, with the other members of the family, in the homestead, and she, with the consent of her son, received the rents of the realty, which she applied in the sup- port of the children for more than twenty years after the death of the testator, without having had dower assigned to her, or ■ having made any demand therefor. Some of the lands had been acquired by the testator after the execution of the will, and as to them there was an intestacy. A bill having been filed by one of the heirs, seek- ing an account of rents received by the widow, and a partition of descended lands: — Held, on rehearing (in this affirming the order of Proud- foot, V. 0. 25 Chy. 293) that the widow was not bound to elect between the provision made for her by the will and her dower, and that notwith- standing the lapse of time she was entitled, out of the devised lands, to retain one-third of the rents in respect of jast and future dower ; but that, as to the descended lands, the remedy was barred by the Statute of Limitations ; that the claim made by the widow in her answer, and awarded her by the decree, was a pursuing the remedy so as to bring the case within the sta- tute, although as to the rents of these lands re- ceived, the widow was entitled to set off against the claim made by the plaintiff, the amount which she was entitled to have received thereout as dowress. (Proudfoot, V.O. , dissenting, who considered the widow entitled to the same relief in respect of these as of the lands devised.) Laidlaw v. Jackes, 27 Chy. 101. C. R. died intestate in 1864, seized in fee sim- ple of the land in question, leaving his widow and several heirs-at-law. The widow remained in possession from the time of his death until her own decease in 1881, and cultivated the farm. There was some evidence of her declarations that she kept possession with the consent of the heirs for them, claiming only her dower, but no evi- dence of a written acknowledgment of their title. She devised the land to the plaintiff: — Held, that the possession of the widow was not a possession qua dowress even of one-third of the land, and that the title of the heirs-at-law to the whole had been thereby barred. Johnston v. Oliver et al., 3 0. R., Q. B. D. 26. 12. Exclusive Possesstov . In 1851 the defendant's father bought for de- fendant the land in question, and in pursuance of his instructions, to prevent the defendant dis- posing of the land, the deed, which was regis- tered, was made to defendant's son \V., then about twelve years old. The defendant and his family thereupon took possession, and lived there up to the present time,' the defendant being assessed and paying the taxes. The family resi- dence, with the garden and orchard, which was fenced off from the rest of the laud, and com- prised from two to four acres, was always deemed to be the defendant's special property, and he had always exclusive possession thereof, with the consent of the others. W. resided with his father for several years, and then went to the United States, but returned in 1869, when he conveyed by deed in fee simple, which was regis- tered, to one H., his step-brother, who had full knowledge of all the facts and circumstances, and who had been working the land on shares with the defendant and another. Defendant com- plained to him of the sale, and denied W. 's right to sell, whereupon it was arranged that things were to go on as before, and defendant was to have his share. H., in 1870, and again in 1874, without the defendant's knowledge, mortgaged the land, by mortgages duly registered, to the plaintiffs, who had no notice or knowledge of any of the circumstances, or of the defendant's possession. In February, 1881, ejectment was brought by the plaintiffs : — Held, that the plain- tiffs, being purchasers for value without notice, claiming under the registered paper title, were under R. S. 0. c. Ill, s. 81, entitled to recover, except as to the house and plot, to which the de- fendant by his exclusive possession had acquired a title under the Statute of Limitations. The Canada Permanent Loan and Savings Company V. McKay, 32 0. P. 51. 431 LIMITATION OF ACTIONS AND SUITS. 432 13. Actual and Constructive Possession. In ejectment it appeared that the lot in ques- tion had been granted in 1812, with other lots, to M. A. P., M., and P. In order to prove the alleged conveyance of the 13th February, 1816, by M. 0. to W., which had been lost, the plain- tiff put in a memorial thereof, registered 19th December, 1826, signed by the grantee, in- cluding an undivided moiety in all the land in the patent with other lands. It was shewn also that W., in 1827, had mortgaged all the lands in this memorial with qther lands, to a bank, which, in 1829, reconveyed them to the trustees under W.'s will, that in 1833 R. took a conveyance from the devisee of W. of three of the lots mentioned in the memorial, not including the lot in question ; and that in 1834, proceedings were tiken in par- tition on the petition of the devisee of W. , under which this lot was assigned to Vf. Possession had been held of this lot, not in accordance with the alleged lost deed, but by persons claiming under R. ; but the court held that the evidence failed to prove such possession for forty years, or that it was taken with the knowledge of W. or his devisee. The plaintifif claimed under a deed from such devisee executed in 1873 : — Held, Cameron, J., dissenting, 1. That there was suf- ficient proof of the lost deed from M. C. 2. That the plaintiffs claiming under W. were pro- tected under C. S. U. C. c. 88, s. 3, as against the possession of R. , his co-tenant, for less than forty years. Van Velsoretal. v. Hughson, 45 Q. B. 252. Affirmed, see 20 C. L. J. 11. Thirty or forty years before action a blazed line had been run between the lots of plaintiff and defendant by S. , a surveyor, along part of which a fence had been erected. The parties re- spectively cut timber and exercised acts of owner- ship on the lands on each side of and up to the blazed line . The plaintiff swore that although he and his father had been governed by this line and never claimed or went beyond it, it was always their intention to dispute it when they shduld be able to establish the true line. The learned judge at the trial found that there was sufficient evidence "of defendant's occupation of the land up to the blazed line to extinguish the plaintiff's title: — Held, Armour, J., dissenting, that the verdict was right. Steers v. Shaw et al 1 0. R., Q. B. D. 26. Title by possession to wild land can be made out otherwise than by actual enclosure. lb. The judgment of the court of common pleas (30 C. P. 484) affirmed as regards the right of the defendant under the statute of limitations to that portion of the land of which actual posses- sion had been shewn for forty years ; but varied by entering judgment for the plaintiff for the rest of the land sued for. The doctrine of con- structive possession has no apphcation in the case of a mere trespasser having no colour of title, and he acquires title under the statute of limitations only to such land as he has had actual and visible possession of, by fencing or cultivat- ing, for the requisite period. (Cameron, J., dis- senting.) Harris V. Mudie, 7 A. R. 414. 14. Mistaken Boundaries. The plaintiff owned the east three-quarters and the defendant the west quarter of lot 25, in the 11th concession of Euphrasia. Sixteen years be- fore suit, L., a surveyor, was employed by both plaintiff and defendant to ascertain the true di- vision line between their lands. The parties cleared up to the line run by L. on each side of it, and a fence was gradually built along the line as the clearing proceeded, but did not extend through the lot, and had not all existed for more than ten years. The plaintiff had notified de- fendant that, if any of his timber fell into the plaintiff's clearing, the defendant must remove it. Two years before suit another survey was made, at the plaintiff's instance, throwing the division line two chains ten links farther west than L.'s line. On this line the plaintiff erected a fence which the defendant took down, and the plaintiff brought trespass : — Held, Armour, J., dissenting, that there was ample evidence of the defendant's possession of the land bounded by the line run by L., so as to entitle him to claim according to that line produced from front to rear of the lot, and a verdict in his favour was upheld : — Per Armour, J., adjoining proprietors cannot be bound by a line run between them, which is not the true line, except by such a con- tract as a court of equity would decree specific performance of : here there was no evidence of any contract or intention to abide by L. 's hue, whether it was a true line or not ; and in such a case the statute will give a title only to such land as has been substantially enclosed for the whole of the statutory period. Per Hagarty, C. J. , that apart from the statute, the evidence did not shew with sufficient clearness, as a matter of survey, that defendant had trespassed on his land. Shepherdson v. McCullough, 46 Q. B., 573. See SUers v. Shaw et al., 1 0. R. 26, p. 431. 15. Entry or Olaim. 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 another the entry is deemed to refer to the whole lands. The Great Western H. W. Go. v. Lutz, 32 0. P. 166. See Donovan v. Herbert, 4 0. R. 635, p. 422. 16. Discontinuance. On 8th April, 1854, the plaintiff acquired by conveyance the fee simple of a vacant piece of' land, but did not enter. Shortly after a railway company surveyed and staked out a portion of it, with other land required for their railway, and the sum so be paid by them to the plaintiff was settled by arbitration under the statute, but the company never paid or took possession. On 31st December, 1857, the plaintiff recovered judgment against the railway company, and under proceed- ings in Chancery sold their interest in the land to the defendant P., who did not take actual pos- session, though he went upon the land prior to 1860, and examined the clay to see whether it was fit for brick making. He did not fence or cultivate it, though it was fenced on two sides by the adjoining proprietors. He also put up a board on it with an advertisement that the lot was for sale, signed by him, but when was not shewn, audit was knocked down and not replaced. In 1876 P. sold the land to the defendant com- pany, who immediately went into possesaioB 433 LIMITATION OF ACTIONS AND SUITS. 434 and made valuable improvements. The railway •company and the defendants paid the taxes from 1853. Held, (Cameron, J., dissenting), that neither the raUway company nor P. had such a possession of the land as extinguished the title ■of the plaintifiF, who was therefore entitled to recover the land. Per Cameron, J.— There had Tieen a discontinuance by the plaintiff, and suffi- ■cient evidence of an adverse claim to defeat the plaintiff's title. Walton v. The Woodstock Oas Co., et al, 1 0. R., Q. B. D. 630. See Griffith et al v. Brown, 5 ^. K. 303, .p 423. 17. Achiowledgment of Title. The father of the defendant was in wrongful possession of land from 1844 to 1862, when P. the owner mortgaged to A. , who assigned to the plaintiff, and interest was regularly paid thereon by the mortgagor until two years bsfore the in- stitution of this suit. In 18()5 the defendant wrote to P. concerning a purchase of some tim- ber on the lands, and P. 's agent went over and measured the timber cut, which was sold to the defendant ; and in 1866 P. sold timber on the land to strangers : — Held, (1) that such entries upon the land, which were sufficient to constitute trespass if unlawful, interrupted the running of the statute in favour of the defendant, who was tenant at will ; and that the written application of the defendant to P. was a sufficient acknow- ledgment of title to prevent the running of the statute as against P. , and (2) that the possession of the defendant before the creation of the mort- gage which was insufficient at that time to bar the mortgagor, did not run against the plaintiff. Hooker v. Morrison, 28 Chy. 369. An acknowledgment of title by a person in possession of land, given to a mortgagor, is suffi- cient to prevent the occupant acquiring title un- der the statute, so as to bar the rights of the persons entitled. For this purpose it is not ne- cessary that the mortgagor should be acting as agent of the mortgagee ; the mortgagor for such purpose is a person entitled under the statute. lb A., in 1835, went into possession of land upon "the invitation of P ., who promised to give him a •deed, but subsequently refused to do so. A. thereupon determined to remain upon, and suc- ceeded in making a living from the land. P. died three years afterwards, having devised the laud to A. and his wife for their joint lives, with remainder to J. , one of the contestants. A. oc- cupied the land until 1877, when he executed a ■coLiveyance thereof in fee to the petitioner : — Held, ou appeal, affirming the decision of the referee of titles allowing the claim of the con- testants, that A. by his entry had become tenant at sufferance to P. , and that as A. was aware of the devise to himself, and never did any act shewing a determination not to take the estate so given to him, the estate for life had vested in him, and that he or his grantee could not claim tha fee by virtue of A. 's possession. Some thirty years after A. 's entry he granted part of the land ibo one B. , and J. joined in the conveyance :— Held, a sufficient admission of the title of J. as a remainderman, and so an admission that the will was operative on the land ; J. having no ■claim to the land otherwise than under the wdl. Be Diuiham, 29 Chy. 258. 28 Where a mortgagee in possession wrote, in 1871, to the holder of the equity of redemption as follows : ' ' The amount due me in November, 1853, on your mortgages was as follows," (stat- ing the amounts.) "No part of that sum has since been paid to me, but the rents I have re- ceived have nearly kept down the interest " : — Held, a sufficient acknowledgment of title to give a new starting point to the statute from the date of theletter . Miller v. Brown, 3 0. R.. , Chy. D. 210. See Oreenshieldsv. Bradford,28Chy. 299, p. 428. 18. Other Cases. The widow and heir joined in creating a term in the descended lands for ten years and in the lease it was stated that it had been mutually agreed between the parties thereto that one- third of the rent should be paid to the widow in each year which was accordingly done during the currency of the term : — Held thab this had the effect of preventing the lapse of time being set up as a bar under the statute to the widow's right of dower. Fraser v. Oann, 27 Chy. 63. Although according to the rulina; in Adamson V. Adamson, 25 Chy. 550, a plaintiff will not be allowed to amend so as to set up a title acquired after the filing of the bill, yet where by error in the conveyance the west instead of the east half of the lot was conveyed, it would seem (per Proudfoot, V.C.,) that it would not be any in- fringement of that rule to allow an amendment setting up the fact that since the filing of the bill the error had been corrected by a new con- veyance, and making the necessary amendments in the bill in accordance therewith. Bat the bill having been amended in one part of it in this re- spect, leaving the erroneous description of the land in the earlier part of it, the Court on re- hearing held that the suit had not been instituted with regard to the east half so as to prevent the defence of the Statute of Limitations being set up, and affirmed the decree of Blake, V. 0. , 25 Oh}'. 552. Bumble v. Larush, 27 Chy. 187. Sometime before 1863 the defendant M. at the solicitation of his father and mother went into possession of 300 acres of land, 103 acres of which were the estate of the mother, and cultivated the same relying on the promise and agreement of his parents to give him a conveyance. In 1866 the mother died without having executed any deed of her 100 acres, and in October of that year the father, in the belief that he was heir to his wife, executed a conveyance to M. of the whole 300 acres, and which M. executed as grantee. The father died in 1873, and M. con- tinued to reside on the property with the know- ledge of his several brothers and sisters uiatil 1877, when, owing to an objection raised by a railway company who desired to obtain a deed of a portion of the 100 acres, it was discovered that the deed of 1866 had not effectually conveyed that portion belonging to the mother, and thereupon the defendant obtained a deed oE quit claim from the several heirs. In 1878 a bill was filed by the heirs impeaching this deed as having bsen ob- tained by fraud, and the Court being satisfied that the same had been obtained improperly set it aside with costs ; but ordered M. to be allowed for his improvements, as having been made under a bona fide mistake of title, he accounting for rents and profits since the death of the father ; 435 LIMITATION OP ACTIONS AND SUITS. 436 and :— Held, that under the circumstaDces M. could not avail himself of the Statute of Limita- tions, as up to the death of his father in 1873, he was rightfully in possession under the deed from the father which stopped the running of the statute against the heirs of the mother and which, though void as a deed in fee, was effectual to convey the father's interest as tenant by the curtesy. McGregor v. McGregor, 27 Chy. 470. The defendant, in consideration that his father would convey to him certain lands in the town- ship of Caledon, undertook and agreed to convey to the plaintiff, a younger brother, 100 acres of land in the township of Artemesia. The father conveyed the land to the defendant, but instead of his conveying to the brother as he had agreed, he sold the property more than twelve years be- fore bill filed, the plaintiff being then at least twenty-one years of age : — Held, that under these circumstances the defendant was merely a constructive trustee, and that the plain tifi's right to call for a conveyance was barred by the Statute of Limitations ; but the defendant having denied the agreement to convey, which, how- ever, was clearly established by his own evi- dence, the Court (Blake, V. C.,) on dismissing the bill, refused to give defendant his costs. Ferquson v. Ferguson, 28 Chy. 380. The plaintiff being the owner of a tract of land near Prescott, on the 29th of October, 1849, agreed with the contractors engaged in the lay- ing out of the railway of the defendants, and in acquiring lands and rights of way for the con- struction thereof, in consideration of their plac- ing the station of the railway for Prescott upon his land, to convey to the contractors, their heirs, &c., six acres of such land for that purpo£ e, and, if necessary, for the purposes of such station, to allow them to take an additional quantity, not exceeding in all ten acres. The station was erect- ed in 1855 on these lands, and used by the company until 1864, when it was closed, and a station erected about one-and-a-half miles from the plaintiff's lands, and station buildings erect- ed thereon, in consequence of which the plain- tiff's remaining lands became depreciated in value : — Held, that the defendants having en- tered upon and retained possession of the lands, BO agreed to be conveyed, tor more than twenty years before the filing of the present bill, (1876) afforded no defence' under the Statute of Limita- tions, as up to a period much within the twenty years their possession could not be questioned, and no right of suit had accrued to the plaintiff until the use of the lands for the purposes of the station was discontinued in 1864. Jessup v. Grand Trunk R. W. Co., 28 Chy. 583. Ee- versed on appeal, 7 A. E. 128. Hugh O'Hare purchased the land in question, and took a deed dated 30th April, 1870. His brother James, the defendant, paid a small por- tion of the money, and immediately went into possession. Hugh occasionally vifcited the place. On the 30th Jlovember, 1874, Hugh mortgaged to the plaintiff, who issued his writ on the 25th February, 1881. Defendant claimed title by possession :— Held, that in any event the statute would not commence to run in defendant's fa- vour until a year from his entry, and that he therefore had acquired no title. Grant v. O'Hare. 46 Q. B. 277. A promissory note made by the purchaser, and endorsed by his son, was given as security forthe payment of land sold to the defendant, on which note a payment had been made by the endoraer : — Held, that such payment was properly appli- cable to reduce. the amount remaining due upon the purchase money, and was sufficient to pre- vent the running of the statute. Slater v. Mos- grove, 29.Chy. 392. The plaintiff filed'his biU against his two bro- thers seeking administration of his father's es- tate, of which he alleged they had possessed themselves on his death in 1848. It appeared that the plaintiff attained his majority in 1857, and it was not proved that any fraud or conceal- ment had been practised upon him : — Held, that the plaintiff was barred by the Statute of Limi- tations, and by the releases executed by him. Hughes v. Hughes et al, 6 A. R. 373. A testator devised land subject to a lease, to J. H. in fee, and as to the rent directed half to be paid to J. H. , and half to the executor in trust for J. H. The executor, assuming the de- vise to be valid, paid all the rent to J. H. The latter executed a deed of the land to C. H., to whom he afterwards paid the rent with the priv- ity of the executor, as soon as he received it from him. 0. H. went into possession of the land after the expiration of the lease, and had been so receiving rent or in possession for more than ten years before action commenced. J. H. was a witness to the will : — Held, affirming the decision of Proudfoot, J., that the devise of rent was void under 25 Geo. II. c. 6, b. 1, as J. H. was the beneficial devisee of the whole of it. Eent is- suing out of land is a tenement ; it partakes of the nature of land, and is within the 5th section of the Statute of Frauds, and hence is also with- in 25 Geo. II. 0. 6, s. 1. Held, further, (also affirming Proudfoot, J. ,) that the perception of the rent by the executor was from the outset "wrongful" within R. S. 0. o. 108, s. 5, sub-s. 5, and C. H. had acquired a good title by possession. Hopkins v. Hopkins et al, 3 0. R., Chy. D. 2?3. The Statute of Limitations does not begin to run against a tax purchaser until the period of redemption has expired. Smith v. 2 he Midland R. W. Co., 4 0. R., Chy. D. 494. II. Claim to Easembnts. Held, Armour, J., dissenting, that the On- tario Act (R. S. 0., c. 108,) reducing the period of limitation to ten years, does not apply to the interruption of an easement, such as a right to a way in alieno solo, in this case a lane, which the defendant had occupied and obstructed for ten years, but which the plaintiff had used prior to such obstruction. Mykel v. Doyle, 45 Q. B. 65. Where a person has enjoyed an easement by having windows overlooking the lands of an ad- joining proprietor for any period, even one day, over nineteen years, he cannot be deprived there- of unless he subsequently submits to an inter- ruption of such easement for a period of twelve months. The propriety of such a rule in the towns of this province remarked upon and qnes- tioned. The case of Flight v. Thomas, 11 A. & E. 688; 8 CI. & F. 231, commented on and fol- lowed. Burnham v. Garvey, 27 Chy. 80. But see 43 Vict. c. 14, s. 1. 437 LIMITATION OF ACTIONS AND SUITS. 43S The plaintiff, tenant for years of the defendant S. , sued for loss of use of a tenfement in conse- quence of the fall of the wall thereof, which was caused by the excavation of the adjoining lot for a cellar by the defendant H. who owned it. H. had excavated his land in some places to within a few inches of the dividing line, close to which the house in question stood. This house had been built by S. in 1854, when he had a lease of the lot for ten years, which gave him the right to remove it at the e;^piration of the term, upon oak planks laid about one foot under the ground. In 1856, however, he acquired the fee, and in 1870, he also became owner of the lot now owned by H. , and held it for a year, when he conveyed it to E. H. from whom H. derived title. There was no evidence to shew that H. knew that the house was receiving inore support from his land than it would have required if it had been con- structed in the ordinary way : — Held, that owing to the unity of seizin of S., there had not been twenty years continuous enjoyment of the sup- port as an easement ; but that even if there had been, no such acquiescence in the use of the ser- vient tenement had been shewn as to justify the presumption that an easement had been acquired by grant. Backus v. Smith et al., 5 A. E. 341. III. Personal Actions. The period for bringing an action against a clerk of a municipality for omitting names from the collector's roll is not linuted to two years un- der K. S. O. c. 61 s. 1. Corporation of Peter- borough V. Edwards, 31 0. P. 231. To a declaration charging negligence in the con- struction and maintenance of drains, in order to drain the streets of a town, whereby the drains were choked and the sewage matter overflowed into plaintiff 's premises, defendants pleaded that the cause of action did not accrue within three months : — Held, bad, as sec. 491 of the Munici- pal Act, E. S. O., c. 174, did not apply. Sulli- van V. The Corporation of the Town of JBarrie, 45 Q. B. 12. In an action by the plaintiff against the de' fendant as administrator of his deceased brother W. G. as to an amount of |800 which the plain- tiff alleged that W. 6. received for her from an- other brother S. G. also deceased, the evidence shewed that S. G. at the time of his death di- rected W. G. , to whom he left the rest of his property, to pay the plaintiff the |800, and W. G., after S. G.'s death informed the plaintiff that he was taking charge of the money for her : — Held, that W. G. was a trustee for the plaintiff under an express trust, and therefore, that under the 0. J. Act, a. 17, sub-3. 2, the Statute of Limita- tions would not constitute a bar to the claim. CooJc V. Grant, 32 0. P. 511. Where the estate of a deceased person is in- solvent, the provisions of the Act respecting trustees displace any right on the part of the ex- ecutor to retain in fuU ; and as against an ex- ecutor claiming as creditor, any other creditor may set up the Statute of Limitations. lie Moss, 29 Chy. 385. The bin of exchange in this action fell due on 1st December, 1875, and the writ issued on the 1st December, 1881 :— Held (Cameron, J., dis- senting) that the statute began to run on the 2nd December, 1875, and therefore that this ac- tion was commenced in time. Sinclair v. Eobson, 16 Q. B., 211, remarked upon. Per Armour, J. Though the holder of a bUl may put himself in a position to commence his action on the day the bill falls due by demanding and being refused payment, he is not bound to do so ; and if he does not, the acceptor has the whole of the day of maturity in which to pay the bill, and the statute does not commence to run until the day after. Quaere, whether even in case of such demand and refusal, the statute will begin to run on that day. Per Cameron, J. Inasmuch as by C. S. U. C. c. 42, s. 15, the bill might have been protested at any time after three o'clock on the day it fell due it was then overdue, and the action was com- menced too late: — Held, also, that the plaintiff, under the facts stated in the report, had estab- lished his right to sue upon the bill. Edgar v. McGee, 1 0. E., Q. B. D. 287. Held, reversing the judgment of the county court that notwithstanding E. S. 0. c. 125 s. 20, a married woman is still entitled under 21 Jac. 1, c. 16, to bring au action in respect of her sepa- rate property within six years after becoming discovert. Carroll v. Fitzgerald, 5 A. R. 322. Where A., one of two residuary legatees and executors, left thfe collection of the outstanding assets of the deceased entirely to B., the other residuary legatee and executor, under an agree- ment between them, by which B. was to remit a moiety when a certain specified amount was col- lected, and it appeared that the residue was ascertained or could have been ascertained within a year from the testator's death: — Held, that A. 's claim to what was so collected more than ten years before action brought was barred by the Statute of limitations, but as to what was got in by B. afterwards A. was entitled to recover : — Held, also, that the fact of the fund in B. 's hands having been from time to time drawn upon to make good deficiencies in the general legacies, so that the residue was not precisely and for all purposes ascertained, did not prevent the bar of the statute ; neither was there any fiduciary rela- tionship between A. and B. , such as to have that effect. Qusere, whether, if the money collected by B. could have been specifically traced and fol- lowed, the court would allow this to be done, notwithstanding the lapse of ten years: — Held, lastly, that the bar of the statute applied not only to assets distributed by R., but also to assets retained by him. Re Kirlcpatrich, Kirk- patrick et al. v. Stevenson et al., 3 0. E., Chy. D. 361. Where in an action for a partnership account on a contract for work done on a canal, it ap- peared that the business bad been closed, the books made up, a final estimate obtained, and the plant sold, more than six years before the commencement of the action : — Held, that the plaintiff was barred by the Statute of Limitations, and the fact that within the six years, a certain sum had been paid over to the plaintiff's solici- tors, but without his knowledge, as the full amount of the partnership profits due to the plaintiff, could not operate to take the case out of the statute. Cotton v. Mitchell et al. , 3 O. R. , Chy. D. 421. A testator directed a sum of money to be in- vested, the interest whereof was to be employed- 439 LUNATIC. 440 in endeavouring to discover his brother, to whom the money was to be paid if discovered within five years from the death of the testator, and if not so found the amount to be paid to M. C. The executors took the bond of the persons liable to pay the amount to the estate, and sub- sequently an instalment payable under such bond was recovered by the executors and paid over to M. C. Afterwards the balance was recovered by one of the executors, who invested it in his business, and sought to defeat a suit to compel payment of the amount at the instance of the personal representative of M. C, by setting up the Statute of Limitations ; more than ten years having elapsed since M. 0. had become entitled to the bequest : — Held, (afiirming the decree of the court below, 27 Chy. 307,) that the conduct of the executors constituted them trustees, and that the right to recover the money was not barred by the Statute of Limitations ; and that C, into whose hands the money had come, was chargeable with interest from the time of its receipt by him. Caincron v. Campbell, 7 A. R. 561. The efifect of letters written by the company's president after the original claim had been barr- ed, and of reports made to the company of claims against them in which the plaintiff's claim was included, discussed as to their sufficiency to re- vive the claim. Shatilij, Executrix of Shanly v. GrandJunction Railway Co., i 0. R., Q. B. D. 156. See also Crone v. Crone, 27 Chy. 425 p. 10. £e Laws — Laws v. Laws, 28 Chy. 382, p. 325 ; Boss V. Pomeroy, 28 Chy. 435, p. 423. LIQUIDATED DAMAGES. See Penalty by Contract. LIQUIDATED DEMAND. See CouNTy Court. LIQUOR. .See Parliamentary Elections — Taverns and Shops. LOAN COMPANY. See Building Societies. LOANS OP MONEY. Loans by municipalities to manufacturing com. panics. See Scottish American Investment Co. v Corporation of the Village of Elora, 6 A. E. 628' Qusere, whether the power to give would not include power to lend. lb. Where mousy is lent to be repaid when the borrower is able, his ability may be shewn by a jslight amount of evidence, such as is open to public observation, of a flourishing condition o{ 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. LOCAL MASTERS. Held, that the local masters who are paid by fees instead of salary, are entitled to charge one dollar per hour in money under chancery tariff, of 23rd March, 1875, when taxing costs. Mc- Gannon v. Clarke, 9 P. R. 555. — ^Boyd. LORD'S DAY. See Sunday. LOST DEEDS. Evidence or — See Evidence. LOTTERY. See Gamlno. LUNATIC. ' I. Application fob Declaration op Lun- acy, 440. II. Appointment as Guardian, 440. III. Contracts and Dealings With, 440. IV. Miscellaneous Cases, 441. V. Mental Incapacity. — See Fraud and Misrepresentation — Will. I. Application for Declaration of Lunacy. An application was made by petition to declare R. a lunatic, and the petitioner failing to pro- duce sufficient medical testimony, asked for an order dismissing the petition. Proudfoot, V.C., declined to make such order, but made an order declaring that the court did not see fit to make any order on the application. Re Randall, 8 P. R. 202. II. Appointment of Guardian. On an application under Rule 69, 0. J. Act, for an order appointing the ofiicial guardian the guardian of one of the defendants, a person of unsound mind, not so found ; — Held, that the motion should be made before the master in chambers. Crawford v. Crawford, 9 P. R. 178- — Proudfoot. III. Contracts and Dealings With. The plaintiffs made certain necessary repaus upon the defendant's vessel. At the time the agreement for the repairs was made, one of the plaintiffs knew that the defendant was sub- 441 MALICIOUS AEREST, PROSECUTION, Etc. 442- ject to insane delusiona, believing that people were conspiring against him to do him some in- jury. He, however, superintended the repairs, and talked intelligently to the workmen emploj'- ed about the vessel ; but some mouths after he became violent, and was confined in an asylum for the insane : — Held, that the plaintifia were en- entitled to recover for the work done. Robert- son el al V. Kelly, 2 O. R., Q. B. D. 163. J., an infant, gave to M. a promissory note for the purchase money of a buggy, endorsed by his father, who was of unsound mind, and unable to understand what he was doing. The father received no consideration, andM. was not aware of his condition : — Held, on appeal from the master at Woodstock, affirming his decision, that the father's estate was not liable. Re James, 9 P. R. 88.— Boyd. IV. MiscelijAneous Cases. Where a person of unsound mind sues by a next friend the usual praecipe order that the plaintiff do produce is proper and is sufliciently obeyed by the afiidavit of the next friend. Travis V. Bell, 8 P. R. 550.— Boyd. The common law right as to the priority of an execution creditor of a lunatic, who has an execution in the hands of the sheriff before the lunatic has been declared such, will not be inter- fered with by injunction restraining him from realizing under his writ. In re Grant, a lunatic, 28 Chy. 457. On a sale of the land of an infant under R. S. 0. c. 40. ss. 75-83 an order was made under 44 Vict. c. 14, s. 5, Ont. , barring the dower of the infant's mother who was a lunatic and confined in an asylum. Re Colthart, 9 P.R. 356. — Fer- guson. MACHINERY. When Fixtures — See Fixtures. MAGISTRATES. Justices of the Peace — Sessions. MAINTENANCE. I. Or Infants — See Infant — Will. II. Op Suits — See Champerty. MALICIOUS ARREST, PROSECUTION AND OTHER PROCEEDINGS. I. Malicious Arrest. II. Malicious Prosecution, 442. 1. Reasonable and Probable Cause. 442. m. Other Proceedings. 1. Proceedings in Bankruptcy and Insol- IV vency, 443. New Trial in Case of- -See New Trial. I. Malicious Arrest. 1. Beaso7iable and Probable Cause. The declaration alleged that the defendant laid an information that certain harness had been, stolen by the plaintiff, whereas the information proved was qualified by the addition of the words "as he supposed :" — Held, affirming the judg- ment of the County Court, no variance. It was shewn that the information was laid by the de- fendant on the advice of the magistrate, and that he did not interfere in the issue of the warrant for the plaintiff's arrest, but it was proved tliat the information contained the substance of the statements made by the defendant, which justi- fied the warrant : — Held, there being an absence of reasonable and probable cause, that the defen- dant was liable. Colbert v. Hicks, 5 A. R. 571. S. , a debtor resident in Ontario, being on the eve of departure for a trip to Europe, passed through the city of Montreal, and while there refused to make a settlement of an overdue debt with his creditors, McK. et al., who had insti- tuted legal proceedings in Ontario to recover their debt, which proceedings were still pending. MoK. et al. thereupon caused him to be arrested, and S. paid the debt. Subsequently S. claimed dam- ages from McK. et al. for the malicious issue and execution of the writ of capias. MoK. et al., the respondents, on appeal, relied on a plea of. jus- tification, alleging that when they arrested the appellant, they acted with reasonable and pro- bable cause. In his affidavit the reasons given by the deponent McK. , one of the defendants, for his belief that the appellant was aboutto leave the Province of Canada, were as follows : — "Thatilr. P., the deponent's partner, was informed last night in Toronto by one H., a broker, that the said W. J. S. was leaving immediately the Dom- inion of Canada, to cross over the sea for Europe or parts unknown, and defendant was himself in- formed, this day, by J. R., broker, of the said W. J. S.'s departure for Europe and other places. " The appellant S. was carrying on business as a wholesale grocer at Toronto, and was leaving with his son for the Paris exhibition, and there was evidence that he was in the habit of crossing almost every year, and that his banker and all his business friends knew that he was only leav- ing for a trip ; and there was no evidence that the deponent had been informed that appellant was le^iving with intent to defraud. There was also evidence given by McK., thafafter the issue of the capias, but before its execution, the de- ponent asked plaintiff for the payment of what was due to him, and that plaintiff answered him " that S. would not pay him, that he might get his money the best way he could" : — Held, that the affidavit was defective, there being no . sufB ■ cient reasonable and probable cause stated for believing that the debtor was leaving with intent to defraud his creditors : and that the evidence shewed the respondent had no reasonable and probable cause for issuing the writ of capias in question. Shaw v. McKenzie, et al. 6 S. C. R. 181. See Reid v. Maybee, 31 C. P. 184. II. Malicious Prosecution. In an action for malicious prosecution, the in- formation and warrant of commitment merely disclosed a civil trespass. The plaintiff was non-- 443 MANDAMUS. 444 suited at the trial. It appeared, however, that the defendants had not disclosed the whole facts to the magistrate, and that, at the hearing, on the plaintifl's solicitor objecting that no criminal offence was charged, one of the defendants said that in order to have the case investigated he would charge the plaintiff with stealing the oats. The statement of claim alleged that the defendants had charged the plaintiff with felony, The Court set aside the nonsuit, and granted a new trial, with leave to the plaintiff to amend the state- ment of claim according to the facts. Per Wil- son, 0. J. Semble, that the facts stated above were evidence that the defendants were putting the criminal law in motion and, the information and warrant being invalid, they were liable as trespassers. Per Osier, J. Qujere, as to this, and whether an action for malicious prosecu- tion will lie for making a false and malicious statement to a magistrate, shewing nothing which conferred jurisdiction on him, but on which, nevertheless, he acts by issuing a war- rant. Macdonald v. Hemoood et al., 32 C. P. 433. In an action for malicious prosecution the want of reasonable and probable cause does not necessarily establish that malice which is requi- .site to maintain the action. Therefore where the jury were directed, in the course of the charge, that if a person makes a charge against another for the purpose of his being arraigned upon it without being justified in point of law, then he does it maliciously : that they need not trouble themselves with a question of malice except as it might be inferred from want of reasonable and probable cause, and that if the information had been laid without proper cause the result would be that it was laid maliciously ; and the plaintiff obtained a verdict of $500 : — Held, mis- direction, for which anew trial should be granted. Per Hagarty, C. J., dissenting. Though the directions standing alone might be open to criti- cism, the charge must be read as a whole ; but as the jury were afterwards told repeatedly that they should find for defendant if they thought that he believed the matters sworn to in his infor- mation, there was no misdirection which would warrant interference with the plaintiff's verdict. Where the damages are large, and to a great ex- tent sentimental, this may well be considered in deciding whether there has been a substantial wrong caused by a clear misdirection. Winjield V. Kean, 1 0. E.., Q. B. D. 193. III. Other Malicious Procbbdings. 1. Proceedings in Bankruptcy and Insolvency. Held, by Gait, J., that an action will lie by a . 326. See also Regina ex rel. Grant v. Coleman, 7 A' E. 619. III. To Sessions. A minute of conviction signed by the justice) but not sealed, was returned to the sessions upon the entering of an appeal therefrom by the de- fendants. The jury found the defendant guilty of the offence of which he had been convicted, but on motion for judgment he objected that the conviction was not sealed. The chairman re- served judgment, and during the adjournment the justice returned and filed a conviction under seaL The chairman then declined to receive it, or to give judgment, holding that there was no conviction upon which to found the appeal, which had been heard : — Held, that the prosecutor was not entitled to a mandamus to compel him to deliver judgment ; for the reception of the con- viction in evidence at that period was in the chairman's discretion which could not be re- viewed. In re Ri/er and Plows, 46 Q. B. 206. The Court of Queen's Bench has no power to grant a mandamus to compel the sessions to re- hear an appeal. Regina v. Grainger, 46 Q. B. 382. IV. To Municipal Coeporations. The defendants in 1865 passed a by-law for the construction of a drain which went through the plaintiffs land, and for assessing certain landSjincluding the plaintiff's, therefor. The drain was commenced in 1866 and completed. In 1873 they passed another by-law for widening and deepening this drain, which was accordingly done. In 1881, they constructed another drain running into the first below the plaintiff's land. The first drain having become out of repair and choked up, the plaintiff^s lands were to some ex- tent flooded in the spring and autunm, and the water lay longer than if the drain had been kept properly clear : — Held, affirming the judgment of Hagarty, C. J., (Cameron, J. dissenting) that the plaintiff was entitled to recover against the de- fendants for their breach of duty in not keeping the drain in repair under R. S. 0. c. 174, s. 543, and that a mandamus should issue to com- pel the defendants to make the necessary repairs. Per Cameron, J. — An action is ex- pressly given by s. 542 for injury done by such neglect, where the drain serves two municipali- ties ; but in a case Like the present, though un- der s. 543 the municipality may be compelled by mandamus to repair the drain at the expense of the lands benefited, no action lies for injury caused by rion-repair. White v. Corporation of Township of Gosjield, 2 0. R., Q. B. D. 287. Mandamus to municipal corporation to levy rates for High School Board. See In re High School Board of High School District No. 4, of tlie United Counties of Stormont, Dimda^, and Glengarry and the Mimicipal Corporation of the Township of Winchester, in the Count;/ of Dundas, and In the matter of the said High School Board and the Municipal Corporation of the Township of Wil- liamsburg, in the County of Dundas, 45 Q. B. 460. There having been a misnomer in the names of the applicants, per Armour and Cameron, JJ., such misnomer not having been objected to on the argument below might be amended. Per Hagarty, C. J. , in such a case no amendment should be granted as a matter of discretion. lb. To Board of Audit in oases relating to fees of County Attorneys. See In re Fenton, County Crown Attorney for the County of York and the Board of Audit for the County of Torh, 31 C. P. 31 p. 165. In re Stanton and the Board of Audit of the County of Elgin, 3 0. R. 86 p. 166. VI. APPHAI,. Held, that the appeal in cases of mandamus under s. 23 of the Supreme and Exchequer Court Act is restricted by the application of s. 11 to deci- sions of "the highest court of final resort" in the Province and that an appeal will not lie from any court of the province of Quebec but the Court ot Queen's Bench. Fournier and Henry, JJ., dis- senting. Danjou v. Marquis 3 S. C. R. 251. MANSLAUGHTER. See Ckiminai Law. MANUFACTORIES. Bonus by way of Aid to— See Municipal Corporations. MARINE INSURANCE. See Insurance. MARITIME COURT. Where a disputed fact involving nautical ques- tions is raised by an appeal from the judgment of the Maritime Court of Ontario, as in the case of a collision, the Supreme Court will not reverse the decree of the judge of the court below merely upon a balance of testimony. The Picton — McCuaig et al. v. Keith, 4 S. C. R 648. Held, that 40 Vict. c. 21, establishing a court of maritime jurisdiction for the province of Ontario, is intra vires of the Dominion Parliament. lb. The appellant's chUd, a minor, was killed in a collision between two vessels by the negligence of the officers in charge of one of them ("The G-arland.") Petition against "The Garland" — UbeUed under the Maritime Court Act at the port of Windsor — on behalf of the appellant claiming |2,000 damages suffered by her, owing 447 MASTER AKD SERVANT. 448 to the death of her son and servant, caused by the negligence of the officers in charge of the said "Garland." The respondent intervened, and demurred on the ground that the petition did not set forth a cause of action against ' ' The Gar- land" within the jurisdiction of the court : — Held, (Fournier and Taschereau, JJ. , dissenting), that the Maritime Court of Ontario has no juris- diction apart irom B. S. 0. c. 128 (re-enacting in that province Lord Campbell's Act, 9 & 10 Vict. c. 93), in an action for personal injury re- sulting in death, and therefore the appellant had no locus standi, not having brought her action as the personal representative of the child. Per Fournier, Taschereau, Henry, andGwynne, JJ., (reversing the judgment of the Maritime Court of Ontario), that Vice-admiralty Courts in British possessions and the Maritime Court of Ontario, have whatever jurisdiction the High Court of Admiralty has over "any claim lor damages done by any ship, whether to person or to pro- perty." Ver Fournier and Taschereau, JJ., dis- senting, that apart from and independently of R. S. 0. c. 128, the Maritime Court of Ontario had jurisdiction in a proceeding in rem against a for- eign vessel for the recovery of damages for in- juries resulting in death ; that the appellant, either in the capacity of parent or of mistress, was entitled to claim damages for the loss of her son or servant. In re '1 he Garland — Moiiaghan v. Bom, 7 S. C. E- 409. MARRIAGE. See HusEAjfD aud Wife. MARSHALLING See Clark v. Bogart, 27 Chy. 450. MASTER. See Local Masters — Practice. MASTER AND SERVANT. I. Contract of Hiring. 1. WJiat Amounts to a Yearly Hiring, 4A1. 2. Oi/ier Case.i, 448. II. Rights of Master and Servant. 1. Actions for Wages, 449. 2. Wrongful Dismissal, 449. III. Liability of Master for Acts of Servant, 450. rV. Injunction to Restrain Intimidation of Servants, 451. I. Contract of Hiring. 1. What Amounts to a Yearly Hiring. In an action on a verbal agreement made in I^ovember, for the hiring of plaintiff by defen- dant for a year from the 1st of December then next: — Held, that there could be no recoveiy for wrongful dismissal, the agreement being one not to be performed within a year; and that there being an express agreement in fact, no- other agreement for a monthly hiring could be implied. Harper v. Davies, 45 Q. B. 442. Held, reversing the judgment of the County Court of York, that a contract of hiring for a. year or more defeasible within the year, is within, the fourth section of the Statute of Frauds. The agreement, as alleged by the plaintiff, was made ip February, 1^80, whereby the defendant wa& to pay him for his services while he should re- main in defendant's employment, at the rate of $500 a year, for one year, and thereafter at such salai y as might be agreed upon ; the plaintiff to enter upon his duties, and his salary to com- mence on the 3rd of March, then next, and de- fendant 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, clearlv within the stat- ute. Booth V. Prittie, 6 A. R.'eSO. 2, Other Cases. Municipal officers appointed by the counciL hold office during the pleasure of the council^ and may be removed without notice and without cause. Wilson v. York, 46 Q. B. 289. Where the plaintiff was engaged by the de- fendant for ' ' the season, "i.e., from early in May till some time in November, as master to man- age the steamer " Idyl-Wyld" for $1000, and he continued so employed until September, when the steamer was burnt : — Held, that the plaintiff" was not entitled to more than the proportionatft share of the salary agreed upon, for the contract was subject to the continued existence of the vessel, and performance was excused by its de- struction without the default of the defendant. Bllis V. The Midland, H. W. Co., 7 A. R. 464. The plaintiff 's testator was chief engineer of the defendant company from its inception until arrangement made by the company with one B. for the completion of the road by B. , he paying all expenses, &c. , including the engineer's salary, in 1851, the testator wrote a letter to the solici- tor for the Grand Trunk Railway Company, which company was about to resume control of the defendants' railway, claiming for services rendered the defendant company up to the mid- dle of 1875. The action was commenced in Feb- ruary, 1882, for services rendered from 1871 to- 1875. At the trial an amendment was made al- lowing the plaintiff to claim tor services render- ed up to 1880. It appeared that the testator- was to have had a salary, but the amount was never fixed. During the period from 1875 to 1880 or 1881 he performed services as engineer for the defendant company, certifying to work done, that the company might obtain bonuses, attending meetings and deputations. He also- approved of plans of a bridge submitted to him, and in 1878 signed the specifications appended' to the contract between the company and B. ;— Held, Hagarty, C. J., dissenting, that there was evidence to go to the jury of a continuing em- ployment of the testator subsequent to 1875, ana 449 MASTER AND SERVANT. 450 of services rendered as chief engineer within the six years preceding action, notwithstanding the letter written by the testator claiming for ser- vices np to 1875 only ; and that any inference to be drawn from the writing of the letter was for the jury and not for the judge to draw ; and a nonsuit was set aside. Per Hagarty, C. J. The evidence shewed that the testator, though nom- inally chief engineer of the defendant company subsequent to the contract with B., was in fact working for B. to whom he looked for payment. The effect of letters written by the company's president after the original claim had been bar- red, and of reports made to the company of claims against them in which the plaintiff's claim was included, discussed as to their sufficiency to re- vive the claim. Shanly, Executrix of Shanly v. Grand Junction E. W. Co., 4 0. R., Q.B.D. 156. II. Rights op Master and Seevant. 1. Action for Wages. Right to investigate accounts &c. where em- ployee has a share in the profits in lieu of re- muneration. R. S. O. c. 133 s. 3. See Sogers Y. Ullmann, 27 Chy. 137. To an action by a commercial traveller for wages defendants pleaded a discharge in insol- vency the plaintiffs replied that the claim was privileged : — Held, reversing the judgment of the Queen's Bench, 45 Q.B. 188, that privileged claims are not within the class of debts mention- ed in s. 63 of the Insolvent Act 1875 to which a discharge does not apply without the consent of the creditor. Fryer v. Shields, 6 A. R. 57. 2. Wrongful Dismissal. The plaintiff agreed with the defendant to serve him as a manager of a tannery for six years, the agreement reciting that he was to manage the works while the defendant was to furnish the capital He also agreed to disclose to the defendant a secret process of tanning, which defendant was not to use after the agreement, except in connection with plaintiff, and to manu- facture the leather according to such process. The defendant discharged the plaintiff after about seven months, alleging, amongst other things, that he was not a practical tanner, and that he was not using the secret process, and had not disclosed it to the defendant :^Held, revers- ing the judgment of Proudfoot, V.C, 27 Chy. 86, that the plaintiff was a practical tanner within the meaning of the agreement; and that the manu- facture of leather was being carried on according to the secret process, and that as no time was limited for disclosing such process, the defendant, who had never asked for the disclosure, had no rightto dismiss the plaintiff for its non-disclosure. A reference was therefore directed as to the dam- ages sustained by the failure of the defendant to perform his part of the agreement, and for the dismissal. Blake v. Kirhpatrick, 6 A. R. 212. The plaintiff renewed his engagement for a year with the defendant company at Hamilton to serve them in the capacity of book-keeper. Before the expiry of the time agreed for, P., one of the managers of that branch of the company, removed the l?ooks from the possession of the plaintiff, placing another in charge there^and 29 telling the plaintiff that he did not any longer require his services, but that if W. , another officer of the company, had anything for him to do outside he would be very glad, adding, "But I have no further service for you in the office, in fact I do not want you in the office." The plain- tiff refused to recognize the right of P. to thus remove him, and it was arranged between plain- tiff, W. and P., that plaintiff should remain oc- cupying his time with other work until it was ascertained from the head office if P. had the authority he asserted ; and on obtaining infor- mation in the affirmative, plaintiff left : — Held, affirming the judgment of the Court below, that the action of the defendants was a dismissal of the plaintiff. Lash v. The Meriden Britannia Company, 8 A. R. 680. III. Liability o¥ Master fob. Acts or Servant. Selling liquor without license. — Liability of servant. See Eegina v. Howard, 45 Q. B. 346. The plaintiff, being engaged in the service of the defendants in repairing a bridge, was injured by the fall of the hammer of a pile-driver, caused, as was found, by the negligence of one M. The work was being performed in R.'s section, R. being a councillor, and M., who was the reeve of the municipality, was employed at day wages- by R. as foreman: — Held, that M., though reeve, was not acting iij that capacity, but as a hired fellow servant with the plaintiff ; that there was nothing to so identify the defendants with him in the work, as their chief officer, as to take the ease out of the ordinary rule governing ' the relation of fellow servants ; and that the- plaintiff therefore could not recover. Drew v. The Corporation of the Township of East Whitby, 46 Q. B. 107. The plaintiff who had purchased a special ex- cursion ticket from Toronto to Niagara and re- turn on the same day by a steamer of the de- fendants, and which had been taken up by the purser on that day, claimed the right to return by it on the following day under an alleged agree- ment with the purser, which the latter denied. On the purser demanding the plaintiff's fare, and the latter refusing to pay it, the porter by the purser's direction, laid hold of a valise which the plaintiff was carrying, and attempted to take it and hold it for the fare, whereupon a scuffle en- sued, and the plaintiff was injured :- -Held, Os- ier, J. , dissenting, that the purser was not act- ing within the scope of his duty in thus forcibly attempting to take possession of the valise, and- the defendants were not liable for his act. Emerson v. The Niagara Navigation Co. , 2 O.R. , C. P. D. 528. It appeared that the purser had been summon- ed by the plaintiff before a magistrate for the as- sault, and a fine imposed, which he paid. Per Wilson, C. J. This, under 32-33 Vict. c. 20, s. 45, D., through a release to the purser, did not constitute any bar to the present action against the company, lb. a 01 t reoLa 1 Held, also, that the alleged imprisonment the plaintiff lay the purser in his office for non- payment of his fare, not being an act which the defendants themselves could legally have done,, the defendants were not liable for it. lb. i51 MISNOMER 452 Liability of municipal corporation for act of collector. — Respondeat superior. See ilcSurky V. The Mayor, &c., of the City of St. John et al, 6 S. 0. R. 531. Liability of crown for negligence of its ser- vants. See Begina v. McFarlane, 7 S.C.R. 216. IV. Injunction to Resteain Intimidation or Sekvants. See Hynes et al. v. Fisher et al., 348. 4 0. R. 60, p. MAXIMS. The rule that " he who comes for equity must do equity" considered and applied. Cleniow v. Booth, 27 Chy. 15. The maxim that the Crown can do no wrong applies to alleged tortious acts of the officers of a public department of Ontario. The Mualcoha Mill Co. V. Tlie Queen, 28 Ohy. 563. Where a widow who had married again tiled tt bill alleging that she had accepted the provi- sions and bequests given to her by will in ignor- ance of her right to dower, had she elected to take dower ; and in her evidence she swore that she had been ignorant of such right until ad- vised in respect thereof in 1880, shortly before her second marriage, and she now sought to have dower assigned to her : — Held, that the rule " Ignorantia juris neminem excusat" appli- ed, and the bill was dismissed with costs. Gil- lam V. Gillam, 29 Chy. 376. The maxim "respondeat superior" applied in an action against a municipal corporation for act of collector. See McSorUy v. The Mayor, etc. , of the City of St John et al, 6 S. C. R. 531. MEASURE OF DAMAGES. See Damages. MECHANICS' LIEN. See Lien. MEDICAL PRACTITIONER. A medical practitioner registered in Great Britain, to entitle himself to practise in this Pro- vince, must be registered under R. S. 0. c. 142, s. 21. In this case the plaiutiflf, a practitioner registered in Great Britain, but not in this Pro- vince, claiming to be entitled to practise here, brought an action against the defendant for slan- dering him in his profession, by stating that he was a quack, &c. : — Held that the action was not maintainable. Shirving v. Ross, 31 C. P. 423. Where defendant, in partnership with two re- gistered practitioners, resided in an establishment over the door of which was a fan-light containing the names of the registered practitioners, with the additions "M.D., M.C.P. & S., Ont., and the name of the defendant with only the addi- tion " M.D." : — Held, that the use of the simple letters " M. D. , " in contradistinction to the foU titles of the partners of defendant appearing oa the same fan-light, was not the use of a title " calculated to lead people to infer" registration, and that defendant therefore could not be con- victed under s. 42 of the Ontario Medical Act R. S. 0., c. 142. Regina v. Tefft, 45 Q. B. 144. MEMORIAL. Proof of deed by. See Van Velsoretal. v. Hugh- son, 45 Q.B. 252, p. 255. MENTAL INCAPACITY. (See Fraud AND Misrepresentation — Lunatic- Will. MERGER. Op Mortgage Debts — See Mortgage. MESNE PROFITS. See Ejectment. Right to mesne profits in action of Dower. Ryan v. Fish, et al, 4, O. R. 335 p. 227. MINES. Right of railway to expropriate. See Jenkim, et al. V. Tlie Central Ontario R. W. Co., 4 0. R. 593, p. 344. [See 47 Vict. c. 30, Ont.] MISDIRECTION. See New Trial. MISNOMER. Quasre as to the efifect of the defendants being described in the note in question in this case as the "Watertown Insurance Company" while the real name was ' ' The Agricultural Insurance,, Company of Watertown, N.Y." See Sears v. The Aqricultural Ins. Co. et al, 32 C. P. 585. There having been a misnomer in the names of the applicants per Armour and Cameron JJ. such misnomer not having been objected to on the ar- gument below might be amended. Per Hagarty, C. J. in such a case no amendment should be granted as a matter of discretion. In re High School Board of High School District No 4 of tlie UnUed Counties of Slormont, Dundas, and Okngarry, and the My/nicipal Corporation of the Township of' Winchester in ihe County of Dundas and In th matter of the said High School Board and the 453 MORTGAGE. 454 Municipal Corporation of the Township of Wil- liamsbarg in the County of Dundas, 45 Q. B. 460 The deed to the defendant company described it by its original name of the P. H. L. & B. R. ■Co., when in fact its name had been changed :— Held, a sufficient desoriptio personfe, to enable the company to take, though it might not be sufficient to sue in. Orand Junction R. W. Co. v. Midland R. W. Co. 7 A. R. 681. MISREPRESENTATION. See FeATJD and MisREPRESENIATION. MISTAKE. I. In Deeds and Other Writings, 453. 1. Rectifying 'Mistake in Deeds — See Deed. II. Miscellaneous Cases, 453. III. In Assessment Rolls and Voters Lists — See Parliamentary Elec- tions. IV. Mistaken Boundaries — See Limita- tion OF Actions and Suits. V. In Surveys — See Survey. I. In Deeds and Other Writinss. The premises intended to be conveyed by a -deed were described therein as 180 acres of the east halves of two lots, "commencing at the front east halves of said lots, taking the full breadth of each half respectively, and running northwards, so far as required to make ninety acres of each east half lot :" — Held, that " north- wards" might be rejected, being evidently a mis- take for "westward." Fergusons. Freeman, 27 Chy. 211. Erroneous description of lands in wUls. See Re Callaghan, 8 P. R. 474 ; Holtby v. Wilkinson, 28 Chy. 550. Mistake in computation of amount due on mortgage. See Stark v. Shepherd, 29 Chy. 316. Life assurance effected for |1,000 only and policy issued by mistake for $2,000. See The Mna Life Ins. Co. v. Brodie, 5 S. C. R. 1. Held, per Moss, C. J. A., that the policy of in- surance in this case supplied internal evidence -of a mutual mistake against which a Court of Equity would if necessary relieve. Wright v. The Sun Mutual Life Ins. Co., 5 A. R. 218. Error in date in deed of transfer. See Pilon V. Brwnet, 5 S. C. R. 318. Sale of Securities — Error in Schedule. See The Real Estate Investment Co. v. The Metropo- litan Building Society, 3 O. R. 476. II. Miscellaneous Cases. Paymentof moneyinto Court to creditof wrong cause. See Johnston v. Johnston, 9 P. R. 259. Delivery by carrier at wrong destination. See Monteith v The Merchants' Despatch and Trans - portation Co., 1 0. R. 47 ; 9 A. R. 282. Non-compliance with a condition in an insur- ance policy to put in the proof within 30 days. See Robins v. T/ie Victoria Mutual Fire Ins. Co., 6 A. R. 427. In statement and return of Deputy Returning officer. See Cameron v. Clueas, 9 P. R. 405. MONEY. I. Interest — See Interest of Money. n. Investment — See Investment oe Money. III. In Court — See Infant — Payment. MONEY HAD AND RECEIVED. See Owston v. The Grand Trunk R. W. Co., 28 Chy. 428, 431. MONEY LENT: Where money is lent to be repaid when the borrower is able, his ability may be shewn by a slight amountjof evidence, such as is open to pub- lic observation, of a iiourishing 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. CoN- II. III. IV. MORTGAGE. Contracts op Mortgage. 1. Generally, 456. 2. Frau'httent — See Fraudulent veyances. 3. Of Fixtures — See Fixtures. 4. Of Goods— See Bills of Sale and Chattel Mortgages. 5. Of Ships— See Ships. Registration of — See Registry Laws. Payment, Merger and Discharge. 1. Payment, 456. 2. Merger of Mortgage Debt, 457. 3. Discharge and Certificate, 458. Rights and Liabilities op Parties and THOSE Claiming under them. 1. Mortgagee in Possession, 459. 2. Right of Mortgagee to Maintain Ac- tions, 460. 3. Rights and Liabilities of Purchasers of Equity of Redemption, 460. 4. Recovery of the Mortgage Money. (a) Wlien an Action will lie, 461. (b) Literest, iei. (c) By Distress-See Distress. 455 MORTGAGE. 455. 5. Right to Orowimi Crops, 462. 6. Mortgagee purchasing at Sale of Mort- gaged Premises, 462. 7. Sale oj Etjuity of Redemption under Execution, 462. 8. Dower in Mortgaged Lands — See DOWEB. 9. Insurance by or for Mortgagee— Right of Subrogation—See Insurance. 10. As affected by Mechanics Liens — See Lien. 11. Barred by Time— See Limitation of Actions and Suits. V. Assignment and Transjek, 462. VI. Several Mortgages. 1. Priority, 465. 2. Consolidation, 465. 3. Other Cases, 466. VII. Sale under Power of Sale. 1. Notice, m. 2. Costs, 468. 3. Other Cases, 469. VIII, Redemption of Mortgages. 1. Who Entitled to Redeem, 469. 2. Terms of Redemption, 470. 3. Costs, 470. IX. Foreclosure. 1. Bill (a) Service of — See Practice. 2. Parties. (a) Creditors, 470. (b) Wife, 471. (0) Adding Parties, 471. 3. Final Order and Decree, 471. 4. Opening Foreclosure, 471. 5. Other Vases, 471. X. Sale. 1. Wlien it will be Directed, 473. 2. Parties, 473. 3. Decree, 473. 4. Costs, 473. 5. 0«7ie7- Cases, 473. 6. Conduct of Sale — See Sale of Land BY Order of the Court. XI. Proceedings in Mortgage Suits. 1. Taking Accounts, 474. 2. Ainendment of Statement of Claim, 474. 3. Costs, 475. 4. Other Cases, 476. XII. Miscellaneous Cases, 476. XIII. Mortgages to Building Societies and Loan Companies— See Building Societies. XIV. Rectifying and Varying Mortgages^ — See Deed. XV. Ejectment by Mortgagees— 5'ee Eject- ment. XVI. Sale of Land Subject to Mortgage — 1 See Sale of Land . I I. Contracts of Mortgage. 1. Generally. Qua3re, whether a conveyance absolute in form, though a mortgage in fact, comes within the Act- 11 Geo. II. i;. 19, B. 11, so as to authorize the mortgagee to give notice to receive an attornment from atenant. McLennan^. Hannum, 31 C.P. 210. The relation of landlord and tenant may be created by proper words between mortgagee and mortgagor for the bona fide purpose of further securing the debt, without being either a fraud upon creditors or'an evasion of the Chattel Mort- gage Act. Trust and Loan Co. v. Lawrason, etal. 6 A. E. 286. The R. S. 0. u. 25, s. 26, declares that any mortgage or lien created by the nominee of the Crown on lands for which the patent has not is- sued, shall in law and equity have the same force and effect, and no other, as if letters pa- tent had before the execution of such iastrn- ment, been issued in favour of the grantor :— Held, tliat under this provision a mortgagor and mortgagee had all the rights and liahiUties as- between themselves that they would have had, had the freehold been actually vested in the mortgagor. Ifatson v. Lindsay, 27 Chy. 253 ; 6 A. R 609. J. and R. , living at P. , had dealings extend- ing over several years with D. who lived at K., and borrowed money from him from time to time. To secure the money borrowed they executed a mortgage to D., purporting to be for $4,000, but really intended as security for whatever should be due to tliem from time to time on the loan account. On taking the account in the Master's oiBce some years afterwards, and after J. and E. had made an assignment in insolvency, it ap- peared that shortly after executing this mort- gage, and before so much as $4,000 had been advanced by D., J. and R. drew on D. for .91,500:— Held that, under these circumstances, the pre- sumption that D. owed J. and E. the §1,500 drawn for, was rebutted, the draft being the natural mode in which J. and R. would procure an advance on the security of the mortgage to- D. It appeared, also, that during the pendency of these transactions .D. gave J. and R. a mort- gage, held by him, to collect, and that J. and R. collected what was due on this mortgage, and re- tained the same. Held that the money so collect- ed and retained was covered by the mortgage from J. and Pi. to D. Court v. Holland et al. i 0. R., Chy. D. 688. Contracts by Infants. See Foley v. The Can- ada Permanent Loan and Savings Society 4 0. E. 38, p. 335. III. Payment, Merger, and Discharge. 1. Payment. H. , being seized in fee of certain lands, mort- gaged them to W., and subsequently sold the 457 MORTGAGE; 458 minerals thereon, with the right to mine, to the -defendant. The mortgage being overdue, W. recovered judgment in ejectment and issued a writ of hab. fac. poss. Defendant hearing of this wrote to H. that the mortgage must be paid, and that he must give him an order to pay it and deduct the money so paid from the pur- chase money of the minerals. Thereupon a ■memorandum was drawn up that the defendant should either pay the mortgage in full discharge thereof, or take an assignment of it as a subse- quent encumbrance, for the purpose of saving the interest of defendant, as also of said H. in the said lands, the amount so paid to be credited and allowed to defendant upon his purchase money of the minerals. Defendant paid the amount due on the mortgage, though his pur- chase money was not due to H. Afterwards H. put the plaintiff in possession of land to farm at a rental, and the defendant having obtained an assignment of the W. mortgage and judgment, evicted the plaintiff; — Held, Armour, J., dissent- ing, that the pnyment by defendant was in effect a payment by H. , whereby the mortgage was satisfied, and as that payment was made for the purpose of saving H.'s interest as well as his own, the defendant would not have been justi- fied in equity in enforcing the mortgage against H. , or his assignee, the plaintiff ; and that the plaintiff was entitled to damages for the tres- pass. Per Armour, J. The defendant was en- titled either to pay the mortgage in discharge thereof, or to take an assignment of it as a sub- sequent encumbrancer ; he did the latter ; though he was to have been credited with this payment, his own payment to H. was not due, and the credit had not in fact been made ; and he therefore had the right to enforce the mort- gage. The plaintiff claimed §500. The jury assessed the damages at $],500, and the learned Judge at the trial amended the statement of the claim accordingly. Held that the damages were -excessive, and a new trial was granted. Robin- son V. Hall, 1 0. K., Q. B. D. 266. See North of Scotland Mortgage Co., v. Udell, 46 Q. B. 511, p. 257. 2. Merger of Mortgage Debt. In response to a notice from the plaintiffs, the mortgagees, of an instalment being due on the -defendant's mortgage, the defendant's solicitor wrote that as defendant was unable to pay the claim, or redeem, and to save plaintiffs' costs, he would give them a conveyance of his equity of redemption. The plaintiffs thereupon conferred with H., their local agent and valuator, who ad- vised them to take a deed, which they agreed to do, but only to enable them to sell the property, and defendant was to have any surplus over the mortgage debt, but that they would not re- lease him from his covenant. An ordmary deed in fee simple was thereupon sent to defendant, and executed by him and his wife, H. at the time informing him that he was to have such surplus ; and also then informed him as well as after the transaction had been closed wrote to him, that the plaintiffs would send a jiischarge, though without any authority from -the plaintiffs to do so ; and defendant stated that ie signed on this understanding :— Held, (Gait, -J., dissenting) that there was no merger of the mortgage debt, but the defendant still remained liable therefor, the equity of redemption having been released only to enable the plaintiffs more conveniently to sell. Per Wilson, C. J. The accountability for the surplus of the proceeds of the sale, shewed the true nature of the trans- action. Per Osier, J. The merger of the mort- gage was a question of intention, such intention being a matter of fact. Per Gait, J. When the plaintiffs accepted from defendant a release of his equity of redemption without any reference to or mention of the mortgage debt, they there- by discharged the defendant and the charge be- came merged. North of Scotland Mortgage Co. v. German, 31 C. P. 349. The owner of lands created two mortgages there- on, and subsequently released his equity to the mortgagee who was entitled to priority, who after- wards bought the interest of the mortgagor at sheriff's sale, and subsequently sold the premises to several purchasers, who bought without no- tice of the second mortgage : — Held, that this had not the effect of merging the mortgagee's charge in the equity of redemption ; and that in a proceeding by parties claiming under the second mortgage, their only right was to redeem as puisne incumbrancers, and that the purchasers were entitled to an enquiry as to the enhanced value of the property by reason of their improve- ments. Weaver v. Vandiisen — Wills v. Ager- man, 27 Ghy. 477. 3. Discharge and Certificate. A certificate of discharge of mortgage is of no effect to revest the legal estate until registered. Where a certificate of discharge was lost before registration : — Held, that the disclaimer of the mortgagees, who were trustees, and the consent of their solicitors was not sufficient to enable the Court to declare the petitioner entitled to the legal estate in fee simple. Re Moore, 8 P. E. 471.— Proudfoot. A mortgagor or other party entitled to the equity of redemption has a right to obtain at his own expense from the mortgagee a reconveyance of the mortgage premises, including a covenant against incumbrances. He is not obliged to ac- cept the simple discharge of mortgage prescribed by the statute. McLennan v. McLean, 27 Chy. 54. The purchaser of a mortgaged estate paid the amount due on the mortgage to the mortgagee, who executed a statutory discharge of the in- cumbrance, which recited that the money due upon the mortgage had been paid by the mort- gagor, and refused either to sign a discharge stating correctly the name of the plaintiff as the person paying, or to execute a reconveyance in his favour, the plaintiff offering to furnish satis- factory proof, if desired, that he was the owner of the equity of redemption. The court, on a bill filed for that purpose, ordered the mortgagee to execute the reconveyance, and pay the costs of the suit. Ih. A mortgagee executed a statutorjr discharge which was incorrectly dated, and his agent in good faith and in order to make the instrument conform to the intention of the mortgagee altered the date, which alteration was, under the cir- cumstances, immaterial, and, as altered, the do- cument stated correctly what was intended by 459 MORTGAGE. 460' the parties to it. Under these circumstances a bill impeaching the validity of such discharge was dismissed, with costs. Sayks v. Brown, 28 Chy . 10. The registration of a certificate given by the survivor of several mortgagees, upon payment in money of the mortgage debt, eSfectually dis- charges the mortgage,and revests the legal estate. O. exectited two mortgages in favour of M. B. and her two sisters, for moneys advanced by them, which were duly registered. He after- wards sold portions of the land to D. andE,, giving them his covenant against incumbrances. Subsequently, and after the death of the two sisters, C. procured M. B. to execute discharges of these mortgages, giving her instead a mort- gage on the other lands of ample value, by way of security, and after the registration of these discharges he sold the rest of the land comprised in the original mortgages to others. 1 hese pur- chasers took in good faith for value, having no actual notice of the two original mortgages. C. afterwards induced M. B. to accept in lieu of this mortgage which she discharged, a mortgage upon other lands which proved almost worthless. Upon the death of M. B., the personal represen- tatives of herself and sisters tiled a bill seeking to charge the land embraced in the original mortgages with the amount remaining due there- on : — Held, reversing the decree of Blake, V. C, (26 Chy. 89,) that the discharges by M. B. were valid and efl'ectual, so far as the purchasers, after they had been registered, were concerned, as when they received their conveyances and paid the consideration therefor, a discharge by M. B., the person entitled by law to receive the money was registered, and they were not bound to en- quire whether paymelit in money had been ac- tually made; but ihat the discharges were in- operative in favour of C. and D. and E., who purchased from him with notice of the mortgage by reason of the registry, to extinguish the in- ierest of the deceased sisters other than M. B., i'S she could only discharge the mortgages upon I ayment of the debt, and not by the acceptance of another security. DMe v. Dovqias ei al, 5 A. E. 63. Although under E. S. 0. c. ICO, s. 9, a mort- gage in fee simple by a tenant in tail vests the fee simple in the mortgagee, the regis- tration of a discharge of such mortgage, in ac- cordance with E. S. 0. c. Ill, s. 67, does not re- convey the estate to the tenant in tail barred of the entail ; it operates only as a reconveyance of the original estate of the mortgagor. Lawlor v. Lawlor, et al, 6 A. E. 312. Reversed by the Supreme Court. See Trust and Loan Company v. Gallagher, 8 P. E. 97. p. 463. IV. Rights and Liabilities op Pasties aud THOSE CX-AIMIKG UNDER ThEM. 1. Mortgagee in Possession. As between mortgagor and mortgagee, there is nothing to prevent the mortgagee taking pos- session at a fair and reasonable rent agreed upon between them. In such a case the mortgagee is not a "mortgagee in possession" in the technical sense of the teim. In such a case, however, a subsequent incumbrancer — prior to thetirstmort- gagee, entering into p'ossession — is not bound by such an arrangement ; and the master may charge ( the first mortgagee with a fair occupation rent although it exceeds that stipulated for. Court V. Holland, 29 Chy. 19. . See Oronn v. Chamberlin, 27 Chy. 551, p. 265. 2. Hight of Mortgagee to Maintain Actions. Although a mortgagee has no right to com- plain of any subsequent dealing with the estate by the mortgagor, there is nothing to prevent him, if his claim is left unsatisfied from suing on the covenant in the mortgage, and proceeding to- a sale under execution or applying to this court to remove any subsequent fraudulent convey- ance which interferes with the realization of his claim. Parr v. Montgomery, 27 Chy. 521. Quaere whether the appellant whose only in- terest was that of mortgagee of S's interest, had any locus standi to bring a suit for partition or to appeal without his co-plaintiflf. Laplante v. &o- men, et al, 8 A. R. 557. 3. Bights and Liabilities of Purchasers of Equity Redemption. AThen a mortgagor who has covenanted for payment of the mortgage debt, sells his equity of redemption subject to such mortgage, he becomes- surety of the purchaser for the payment of such debt, and if the same is allowed to run into de- faidt he will be entitled to call upon his assignee to pay such debt. Campbell v. Robinson, 27 Chy. 634. C, the owner of real estate executed amort- gage to the plaintiff, and subsequently created a, second mortgage in favour of one H., which he transferred to the plaintiff. Afterwards G. mort- gaged the same lands to E. and D. ; and subse- quently assigned the equity of redemption to them, in which assignment the mortgage to the plaintiff and that to R. and D. were recited, hut the intermediate one to H. was net, though the- amount stated as due to the plaintiff was about the sum secured by both mortgages held by him. Uefault having been made, a biU was filed against G. upon his covenants and against his. assignees R. and D., as the owners of the equity of redemption and entitled to redeem :— Held, that under these circumstances G. having claimed such relief by his answer, was entitled as against- his co-defendants to an order for them to pay such sum as might be found due the plaintiff" under his securities, and the suit having been rendered necessary by reason of the default of R. and D. in not paying the plaintiff, they were also bound to pay G. his costs. lb. B. owned lots D and E, and mortgaged them. The mortgagee (J.) assigned the security and afterwards bought up the equity of redemption. P. the plaintiff, subsequently purchased lot D, for which he paid the fuU value and obtained a- conveyance containing statutory covenants for title and possession. J. subsequently sold lot E. to a bona tide purchaser, who conveyed to the appellant ;--Held, affirming the judgment of thfe court below (28 Chy. 356), that P. was entitled to be indemnified out of lot E to the full extent of the value thereof against the amount due on th& mortgage. Pierce v. Canaran et al., 7 A. R. 187^ See Chamberlain v. Sovais, 28 Chy. 404, p. 46!t 461 MOETGAGE. 462 4» Recovery of the Mortgage Money. (a) When an Action will lie. Held, that a mortgage which contains an ac- knowledgment 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 main- tain an action for its recovery. In this case it was shewn that no money was ever advanced by the mortgagee to defendant, the mortgagor, but that the mortgage was given for a debt due by defendant to one C, who in consideration of getting it_ agreed to relieve defendant from all personal liability ; and the plaintiffs, assignees of the mortgage, were held not entitled to re- cover. Quaere, whether sec. 1, sub-s. 4, and sec. 2 of the Vendors and Purchasers' Act, R. S. 0. c. 109, apply to such an action as this, or only to actions where the title to land is in question. Tlie London Loan Co. v. Smyth, 32 C. P. 530. A writ was in the hands of the sheriff at the suit of the plaintiffs against I., at the time of the dis- missal of a bill filed by I. to redeem the plaintiffs, and at the time of the sale to M. , which dismissal had the effect of a decree of foreclosure against I: .- Held, notwithstanding that the plaintiffs might proceed to recover their debt against I., they be- ing in a position to reconvey the mortgaged pre- mises. Bank of Toronto v. Iricin, 28 Chy. 397. (b) Interest. A mortgage was to be void on payment o^ ^,000, at eight per cent., in five years from date thereof, with " interest in meantime half-yearly on, &c., in each and every year of said term of five years ; and also upon payment of interest at and after the rate aforesaid upon all such inter- est money as shall be permitted or suffered to be in arrear and unpaid after any of those days and times hereinbefore limited and appointed for payment thereof :" — Held, that the contract be- tween the parties was simply one for payment of interest on any interest which might be in arrear before, but not after, the expiry of the mortgage. Wilson v. Campbell, 8 P. E. 154.— Blake. Interest on a mortgage was payable half-yearly in advance on the 1st of April and October. The mortgagee filed a bill for sale, and the Registrar on taking the account {in the latter part of Janu- ary) fixed a day in July following for payment, and allowed the plaintiff interest to that date, but refused to allow him the half year's interest payable in advance on the 1st of April. Trwit and Loan Co. v. Kirk, 8 P. B. 203.— flolmstead, Segistrar. — Proudfoot. Where no rate of interest is fixed by a mort- gage to be paid after maturity, the rate of in- terest mentioned in the mortgage is chargeable prima facie, but the person seeking to reduce it may shew that it is more than the ordinary value of money. Simonton v. Oraham, 8 P. E.. 495. — Blake. Where no interest is reserved by a mortgage none is recoverable until after the day appointed for payment of the principal. Reid v. Wilson, 9 P. K. 166. — Hohrstead, Registrar. Qusere, as to the effect of a proviso in a mort- gage for payment of the amount " secured with- out interest if paid when due." lb. Where a mortgage to secure the re-payment of money with interest at 10 per cent, provided that, ' ' should default be made in payment of the principal money or interest, or any part thereof respectively then the amount so overdue and unpaid to bear interest at the rate of 20 per cent, per annum until paid" : — Held the said proviso was not invalid, or relievable against on the ground of forfeiture. Dovmey v. Parnell, 2 0. R., Chy. D.82. A parol agreement to pay a higher rate of in- terest than that reserved in the mortgage, is in- effectual to charge the land. Totten v. Watson, 17 Chy. 235, and Matson v. Swift, 5 Jur. 645, followed. Re Houston — Houston v. Houston, 2 0. R., Chy. D. 84. 5. Right to Growing Crops. Upon default made in payment of a mortgage the mortgagee has the unquestionable right to take possession of the property in the state in which it then is as to crops, and to hold the whole as his security. Therefore, when land was sold LD July under a decree made in a mort- gage suit, without any reservation of crops : — Held, that the purchaser took all that the mort- gagee could beneficially hold possession of, and was entitled to the unsecured growing crops, mature and immature. McDowell v. Phippeni 1 0. R., Chy. D. 143. 6. Mortgagee purchasing at Sale of Mortgaged Premises. P. created three several mortgages on separ- ate portions of his estate, in all about 140 acres, estimated as worth $6,000, subject to incum- brances amounting to $3,500, and interest. One of the mortgages was in favour of defendant M. , who subsequently acquired the interests of the other two mortgagees. Alter the creation of these mortgages P. executed a deed of trust of the whole property in order to defeat a claim of title set up to ten acres by one S. Default was made in payment of M.'s mortgage, who institut- ed proceedings at law and recovered judgment, on which he sued out execution and under it the sheriff (after the defendant M. had so acquired the other mortgages) proceeded to a sale of the property, which he offered in three distinct par- cels, and M. bid for and became the purchaser of all at sums amounting in the whole to |20. The cestui que trust thereupon filed a bill to re- deem, alleging that the sale to M. had been at a gross undervalue, ahd praying to have the same set aside ; the court however refused the relief asked with costs, being of opinion that the deed of trust was fraudulent, and that the price real- ized was large considering that it was a sheriff's sale. Parr v. Montgomery, 27 Chy. 521. See also Richer v. Ricleer, 7 A. R. 282. 7. Sale of Equity of Redemption under Exe- cution. See Parr v. Montgomery, 27 Chy. 521, supra. v. Assignment and Transfer. The plaintiffs the Trust and Loan Company, advanced $2,000 on certain land, on condition 463 MORTGAGE. 464 that three enonmbrances against it should be dis- charged out of the proceeds of their loan and otherwise. The first and third encumbrancers were paid oflf, and the former executed a statu- tory discharge of their mortgage, which was never registered. Subsequently the second en- cumbrancer, who had not been paid, claimed pri- ority over the plaintiffs. They then obtained an assignment of the first mortgage : — Held, that the discharge of mortgage not having been regis- tered, operated only as a receipt, and the amount paid the first encumbrancer being paid by the Trust and Loan Co. , and not by the original mort- gagor, that the plaintiff's were entitled to priority to the extent of the first mortgage. Trust and Loan Co. v. Gallagher, 8 P. B.. 97. — Taylor, Master. 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 dili- gence in enforcing payment thereof ; - and if through his default or laches the money secured thereby is lost, it will be charged against the creditor, and deducted from his demand. Synod V. DeBlaquiere, 27 Chy. 536. (Affirmed on Ap- peal, 30th June, 1880.) A mortgagor paid off a mortgage after the mortgagee had assigned it, and also a second mortgage obtained by fraud from the same mortgagor to the plaintiffs, who did not procure the mortgagor to join in the assignment of either, or notify him thereof : — Held, that the assignee took the mortgages subject to the equities be- tween the original parties thereto ; and as the riginal mortgagee could not, if plaintiff, have re- covered upon the one mortgage because paid, nor upon the other, because invalid, so neither could his assignee. Wilson v. Kyle, 28 Chy. 104. The original owner of land created a mortgage thereon in favour of one M. and died without redeeming, and the equity of redemption in the premises descended to C. F. his heir-at-law, who with her husband P. F. joined in a conveyance thereof to trustees charged with the support and maintenance of the plaintiff's, subject to which and the mortgage in favour of M. the pre- mises were limited to P. F. in fee, who subse- quently in September, 1875, out of W. F.'s moneyspaidthe amount due on M's mortgage, but which was not actually discharged. In Decem- ber following P. F. sold to W. F., conveyed to to him the equity of redemption and procured M. to assign his mortgage and convey to him the legal estate. In JVIarch, 1877, AV. F. mort- gaged the land to a loan company but did not assign the M. mortgage, and subsequently the plaintiffs filed a bill seeking to have the charge for their maintenance enforced against the mort- gage estate ;— Held, (reversing the finding of the Master at Hamilton) that the loan company were, under the circumstances, entitled to priority over the plaintiffs to the extent of the amount secured by M's mortgage. Fraser v. Gunn, 29 Chy. 13. A mortgagor and mortgagee dealt together for some years without having had any settlement of accounts, and the former became insolvent. At the date of the insolvency there .existed a right of set-off, in favour of the mortgagor for the balance due him on their general dealings ; — Held, affirming the finding of the master, that such a right of set-off passed to the official as- signee of the mortgagor, and that a transferee of the security took it subject to the equity. Court V. Holland, 29 Chy. 19. The plaintiffs negotiated for the purchase from the defendants of certain mortgage securi- ties and other assets of the defendants on the basis of an eight per cent, investment, and a schedule was prepared by the defendants' man- ager exhibiting each security, amongst which there was stated to be a mortgage by F. for |4, 700 ; whereas in fact there was no such mort- gage, but instead two mortgages on the instal- ment principle, which as an eight per cent, in- vestment were worth only $3, 920, making a de- ficiency of 1780. This was caused by F. before the schedule was drawn up, intimating his inten- tion of paying off the mortgages, $4,700, being the amount agreed upon between F. and defen- dants, which he would have to pay and which defendants' manager therefore, in good faith, put into the schedule. Subsequently and while the schedule was in the plaintiffs' solicitor's hands to prepare and settle the deed of assignment, P. decided not to pay off the mortgages, but to go on with the regular payment of same, and de- fendants' manager then corrected the schedule by inserting the two mortgages. There was a dif- ference between the plaintiffs and defendants as to the value of the securities, and finally a lump sum was agreed on and paid by plaintiffs, and the assignment executed : — Held, by Osier, J., that, on the evidence, set out in the report, the plaintiffs' solicitor must be deemed to have had notice of the error and alteration in the schedule before the execution of the conveyance or com- pletion of the transaction, and that this was notice to the plaintiffs : — Semble, per Osier, J., that, although the evidence shewed that there was no intention to deceive on the part of the defendants' manager, stiU there was such a mis- statement of a material fact, as, but for the notice would render the defendants liable for the dam- age sustained thereby. The Real Estate Invest- inent Company v. The Metropolitan Building So- ciety, 3 0. E., C. P. D. 476. The defendants in the deed of assignment covenanted that the mortgages were good and valid charges on the lauds, and that the defend- ants had not done or permitted any act, &c., whereby the mortgages had become released or discharged in part or in entirety. It appeared that certain of the lands comprised in these mort- gages had been sold for taxes : — Held, per Osier, J., that the covenant was not ultra vires of the company or the directors ; and that the plaintifi were entitled thereunder to recover the value of the lands so sold. lb. Arrears of taxes due on the mortgaged lands were paid by the plaintiffs. The taxes were due by the mortgagors ; there was no covenant in the assignment against incumbrances, and no evi- dence of any request by defendants to pay them: — Held, that the plaintiffs were not entitled to re- cover the amounts so paid. lb. The plaintiffs also claimed to recover a sum of money paid to the defendants' solicitors for costs due them: — Held, under the circumstan- ces not recoverable, as it was a voluntary pay- ment, lb. 465 MORTGAGE. 466 On appeal to the Divisional Court : — Held, as -■to the claim for the $780, there could be no re- covery, for that the true construction of the tran- saction was that the lump sum was to cover all 'deficiencies in value as also errors and mistakes, at all events to not an unreasonable amount, •which $780 could not be said to be ; and where, iis here, there was no fraud, concealment, or mis- representation. In other respects the judgment was affirmed. lb. VI. Sevekai, Mortgages. 1. Priority. There were two mortgages registered against property, the first mortgagees were pressing the mortgagor for payment, and about to sell out his chattels, and A. at the request of the mort- -gagor, and to stop such sale, advanced $1,000 to iihem, and took a mortgage to secure himself from the mortgagor, but with no understanding with the first encumbrancers : — Held, that A., though he thus reduced the first mortgage- by $1,000, and so bettered the position of the second ■mortgagee by that amount, could not claim priority for his advance over the second mort- gagee. Imperial Loan and Investment Co. v. O'SulUvan, 8 P. R. 162.— Spragge. C. being the equitable owner of the land con- tracted by writing (registered) to sell to the de- fendant on 13th of February, 1877. Part of the purchasemoney was paid down. 0. obtained an •order on 17th April, 1878, vesting the land in him — there were two mortgages on the registry prior to one in favour of the loan company. On the 17th May the defendant gave an order on the loan company to pay the proceeds of a loan to their local agent, who was informed by one J., a solicitor who had control of the two prior mortgages, that they were paid o6f and that he would get them discharged. Thereupon the agent paid C. the balance of his unpaid purchase money, and C. on the 25th May, 1878, conveyed to the defendant. The loan company's mort- gage was dated loth May, and registered the 25th May : — Held, on appeal from the master (affirm- ing his report) that the loan company could not ■stand in O.'s place and claim priority in respect of his lien for unpaid purchase money over the prior mortgages, following Imperial L. & I. Co. ■V. O'SuUivan, 8 P. R. 162. Watson v. Dowser, 28 Oby. 478. The loan company's mortgage contained this •clause, ' ' that in the event of the money herebj- •a Iranced, or any partthereof, being applied to the payment of any charge or incumbrance, the com- Tp.any shall stand in the position and be entitled "to all the equities of the person or persons so paid •off" : — Held, that this provision could not affect iprioT mortgagees who were no parties to it ; and Quaere, whether it would apply to the discharge ■of unpaid purchase money, which does not con- stitute a charge or incumbrance in the proper meaning of those terms. lb. See Fraser v. Ounn, 29 Chy. 13, p. 463 ; Trmt and Loan Go. v. Galla-gUr, 8 P. R. 97, p. 463. 2. Consolidation. The rule that a mortgagee shall not be redeem- •ed in respect of one mortgage, without being 30 redeemed also as to another mortgage created by the same mortgagor, applies as well in a suit to foreclose as to redeem. In such a case the pro- perty embraced in one mortgage realized more than sufficient to discharge it. The plaintiff, an execution creditor of the mortgagor, obtained a security on the lands comprised in such mort- gage 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, (1) that the defendant, the mortgagee, had not the right as against the plain- tiff, to consolidate his mortgages, and make good the loss on the one out of the surplus on the other sale, the policy of the Registry Act being to give no effect ■to hidden equities. (2) That by taking a mortgage, and thus giving time to the mortgagor, the plaintiff was a holder of his mortg^ige for value. Johnston v. Rdd, 29 Chy. 293. See also Miller v. Brown, 3 O. R. 210. 3. Other Gases. Several parcels of land were embraced in one mortgage. Subsequently the mortgagor farther mortgaged some of them to the plaintiffs with the usual mortgagor's covenants. He afterwards conveyed another parcel to S., who, when he took his conveyance, was not aware of the plain- tiffs' mortgage, but it was registered against the parcels embraced in it, though not against the other parcels: — Held, (1) That the plaintiffs were entitled to require as between them and S. that the parcel conveyed to the latter should be resorted to for satisfaction of the prior mort- gage before recourse should be had to the parcels embraced in the plaintiffs' mortgage. (2) That the registration of the prior mortgage against the parcel bought by S. was notice to him of the right of persons who purchased other parcels be- fore he purchased to throw the mortgage upon his parcel, and that S. was affected with notice of the plaintiffs' mortgage, and the right it con- ferred. Glarh v. Bogart, 27 Chy. 450. The first of three mortgagees having filed a bill for sale, the other two proved their claims in the suit. No one redeemed by the day appointed, but a final order for sale was not taken out, be- cause one v., who had purchased the equity of redemption, was negotiating with S., the third mortgagee. During these negotiations V. cut and sold a large quantity of the timber on the land to G., whereupon S. filed a bill praying payment by G., of the price of the timber, which had not yet been paid over: — Held, affirming the Master's ruling, that the first mortgagee was entitled to it. Scott V. Vosbiirg, 8 P. R. 333.— Proudfoot. On 4th April, 1853, M. and his wife (to bar dower) mortgaged the lands in question to 0. On 21st May, 1867, M., being in insolvent cir- cumstances, conveyed the said lands to W. to the use of M.'s wife. In 1863, and 1872 M. exe- cuted two other mortgages to 0. for the debt originally secured by the first mortgage. On 20th December, 1874, M. and his wife (to bar dower) mortgaged the said lands, to 0. All the above deeds were registered about the time of their respective executions. On6thMirch, 1876, G. assigned to the plaintiff, but the deed was not registered. On 7th June, 1876, M. and his wife jointly mortgaged the same lands to the plaintiff by deed registered 15th July, 1876. On 21st 467 MORTGAGE. 465 May, 1874, W. and M, and his wife granted and released the said lands to C. nntil payment of the mortgage of 1872, and on payment thereof to the -use of M. in fee. This, however, was not registered till 4th Angnst, 1881. The plaintiflf had no notice that the conveyance from M. of 21st May, 1867, was invalid, nor of the convey- ance of 21st May, 1874, but he had notice of the three mortgages to 0. and that C. claimed the whole debt against the land, and also that there was a defect in C. 's title under the second and third mortgages : — Held, that the plaintiflf, being bound by such notice, could not avail himself of any defect in the title arising from M. executing the latter two mortgages to C, although still being the owner of the equity of redemption, that the plaintiff acquired his title with knowledge that C. claimed a debt represented by the three mortgages, and took his mortgage, subject to such claim by : — Held, also, that the deed from M. of 21st May, 1867, was either voluntary or a fraudulent preference, and in either case void; and that the fact that M.'s wife joined to bar dower, in the two last mortgages to C. after she had apparently become the owner of the equity of redemption, constituted her a party to the accounting which took place with C. in respect to the continuing debt, and bound her in her character of assignee of the equity of redemption if she could be so considered. Edwards v. Morrison et al, 3 0. K., Chy. D. 428. See Gzowski v. Beaty et al, 8 P.E. 146, p. 473. ATTI. Sale tjmdbb Powee. or Sale. 1. Notice. A power of sale in a moitgage required notice upon default to be given to the mortgagor, "his heirs, executors, or administrators," or left for him or them at his or their last or usual place of abode, before exercising the power : — Held, that a notice which was served upon the widow, who was also the administratrix of the deceased mortgagor, aud addressed to her as such widow, was insuflBcicnt, because not served also upon the heir-at-law of the moitgagcr, although only an infant about three years of age, and that the sale under the power was therefore void. Bartktt T. Jull, 28 Chy. 140. The notice stated only that unless payment was made proceedings would he instituted to ob- tain possession : — field, also, that on this ground the notice was insufficient to support a sale. Ih. In proceeding to impeach a conveyance exe- cuted in pursuance of such a sale the purchaser, or those claiming under him, must shew a due exercise of the power of sale ; the onus of im- peaching it is not upon the party alleging the invalidity of the deed. Ih. One of the stipulations of a mortgage was, that "interest should be payable half yearly on * * Provided that the mortgagees, on default of pay- ment ior three months, may enter on and lease or sell the said lands without notice: "And the mortgagees c'ovenant with 1he mortgagors that no sale or lease of the said lands thall be made or granted by them until ^uchtimeasonemonth's notice in writing shall ha\e been given to the mortgagors." Held (per Froudfoot, V. C), that the mortgagees could sell at any time, without notice, after default for three months, and that the purchaser would take a good title ; and in any event, a notice served at any time after de- fault was sufBcient, and the mortgagees were- not bound to wait until default had been madft for three months to give such notice : in other words, that the month's notice and the three, months' default might be concurrent. Grant v Canada Life Ass. Co., 29 Chy. 256. The rule of law which requires a mortgagee selling under a power of sale in his mortgage to observe the terms of such power, is also appli- cable to sales by a trustee or quasi trustee acting under a power ; — the power must be followed r and the rule applies with equal force to sales by an assignee of an insolvent estate, under the Act of 1869, sec. 47, who in such cases acts under a statutory power authorizing a sale, ' ' but only after advertisement thereof for a period of two- months." An assignee proceeded to sell thelands- of the insolvent without giving notice of such intended sale "for a period of two months" as. prescribed by the Act, no sanction of the credi- tors thereto having been given :— Held, a good objection to the title by a vendee of the purchaser at such sale. In re Jarvis v. Cooh, 29 Chy. 303. 2. Cants. The costs of proceedings to obtain a sale of mortgaged premises are such a charge upon the estate as will entitle the mortgagee to proceed to a sale of the property in the event of non-pay- ment. Thompson v. Holman, 28 Chy. 35. Where a first mortgagee sells under the power of sale contained in his mortgage, a subsequent mortgagee is entitled to an order to tax the lirat mortgagee's costs of exercising the power of sale, such costs to be taxed as between solicitor and client. Re Crerar and Muir, 8 P. E. 56.— Dal- ton, Q. 0. First mortgagees sold under a power in their mortgage, and paid their solicitors' costs of sale. A subsequent encumbrancer obtained from thft referee, ori motion, an order for the taxation of the mortgagees' costs. This order was reversed on appeal, on the ground that the mortgagees- could not tax the bill, and the mortgagor stood in their place. An objection that the order should, have been obtained on petition, not notice, was dis- regarded. Be McDonald, McDonald <« Marshy 8 P. R. 88.— Stephens, Referee.— VTOudioot. First mortgagees sold under power of sale, and: paid their attorneys' costs. A second mortgagefe was held not to be entitled to the right of taxing; these costs. Be McDonald, McDonald & Marsh,, 8 P. R. 88, approved. Re Cronyn, Kew & Belts: Attorneys, 8 P. E. 372.— Full court. Where F., a solicitor, on behalf of his client,, served a notice of sale under a mortgage mads pursuant to the Act respecting short forms, E.. S. 0. , c. 104, upon what he believed, after diU- gent enquiry, was the last place of residence, of the mortgagor in this province, and did so oui the instructions of his client, who was fully ad- vised as to the said enquiries and their result, and bonS, fide deeming such service sufiioient :— Held, that F. was entitled, as against his client, to tax the costs of the proceedings under the- power of sale, although it appeared the mort- 469 MORTGAGE. 470^ gagor really was at the time of such service, within this province. K. S. 0. c. 104, permits substitutional service at the residence, though the mortgagor may be within the jurisdiction. But even if such is not the proper construction of the statute, it is a matter so doubtful that the solicitor who bona fide acted on that view of the statute should not lose his costs of so effect- ing service. O'Donolwev. Wldtty, 2 0.'R.,Chj. D. 424. 3. Other Cases. In a bill filed by a mortgagor against his son, a bidder at the sale by another of the defen- dants, a loan company, to which biU the com- pany and one B. were also defendants, it was al- leged that it had been agreed between the son and B. that in consideration of the sou's securing to B. a debt of the plaintiff, B. would advance the deposit necessary to enable the son to buy the land at the sale ; that the son should attend and buy in the land, which he accordingly did ; that in consequence of B. 's refusal to make the promised advance, the son was unable to carry out the sale ; that the bidding of the son deterred others present from bidding, and that B. after- wards privately bought the land at a great under- value to lihe loss of the plaintiff : — Held, on de- murrer, that the bill sufficiently, though inartifi- cially, alleged that by reason of B.'s agreement and refusal to make the advance agreed upon, he had occasioned an abortive sale, and profited thereby to the loss and damage of the plaintiff. Campion v. Brackenridge, 28 Ohy. 201. Qusere, whether the claim of a second mort- gagee for the surplus proceeds of the sale after satisfaction of the prior mortgage is a purely money demand. Green v. Hamilton Provident Loan Co., 31 0. P. 574. VIII. Redemption of Mortgaoes. 1. Who entitled to Redeem. Four persons joined in executing a mortgage of their joint estate, and subsequently the inter- est of three of them was sold under executions at law : — Held, that the sale was inoperative ; that the owner of the equity of redemption had a right to redeem ; and that the purchaser at sherifl's sale, who was also the mortgagee, having gone into possession of the mortgage estate, was bound to account for the rents and profits. Cronn v. Chamberlin, 27 Chy. 551. In a suit to redeem, the plaintiff was a judg- ment creditor with execution in the hands of the sheriff against the lands of the defendant S., which lands were subject to a mortgage to L., whose executors were also defendants. At the hearing the court (Spragge, 0.,) declared the plaintiff entitled to the same relief as upon a bill by a puisne incumbrancer against a prior mort- gagee and the mortgagor, and that notwithstand- ing E. S. O. c. 49, s. 5, inasmuch as he could not establish his right in the county court in which he had recovered his judgment, so as to obtain as effectual a remedy as that sought in the re- demption suit, he might resort to equity to obtain relief. Chamberlin v. Sovais, 28 Ohy. 404. The executors of B. were also liable upon the judgment recovered by the plaintiff, B. having been a defendant in the action, and by their answer set up that they were liable only as sureties for the defendant S. All parties inter- ested were represented in the suit, and no one objecting thereto, a reference was granted at the instance of B,'s executors, in order that they might establish the fact of suretyship, in which case they would be entitled to the same relief as was granted in Campbell v. Robinson, 27 Chy. 634. Ih. One of the mortgagor's surviving children died an infant and intestate before this suit : — Held, that this suit, which was for redemption, enured to the benefit of those entitled to her share, in- cluding her mother as tenant for life under R. S . 0. c. 105, s. 27 : — Held, also, the mother should be directed to be made a party in the master's ofl&ce under Gr. O. 438, since the present case did not fall under the Judicature Act. Semble, if under that A 3t the same might have been directed under Rule 89. Faulds v. Harper et al., 2 0. R., Chy. D. 405. Reversed on appeal. See 9 A. R. 537. See also i?e Davis, 27 Chy. 199. 2. Terjns of Redemption. The equity of redemption is an entire whole, and so long as the right of redemption exists in any portion of the estate, or in any of the per- sons entitled to it, it enures for the benefit of all, and the mortgagee must submit to redemption as to the whole mortgage. Faulds v. Harper et al., 2 0. R., Chy. D. 405. Reversed, on appeal. See 9 A. R. 537. 3. Costs. In proceeding undera consent decree to redeem, the defendant being in the position of a mort- gagee brought in an account claiming |905 to be due, while the master found the balance to be only $1.32 : — Held, that as the defendant had advanced his claim honestly, and under a rea- sonable belief that the sum claimed was justly due, he was entitled, notwithstanding the insig- nificant sum remaining unpaid, to the benefit of the rule that a mortgagor coming to redeem is liable for the costs of suit where a balance is. found in favour of the defendant. Little v. Brunher, 28 Chy. 191. See Livingston v. Wood, 27 Ohy. 515, p. 159. IX. "FOKECLOSURE. 2. Parties. (a) Creditors. Where sureties for a debt gave to the creditor a second mortgage on land as an additional se- curity, and foreclosure proceedings are taken by the first mortgagee : — Held, that the creditor, on being notified thereof, should either make himself a party to the suit and prove his claim, or notify the sureties to enable them to prove it if they so desired; but:— Held, that the evidence in this case shewed that the sureties had notice, , at aU events some three months before the day of redemption, which was sufficient. Held, also, that the fact of two co-debtors changing their position so as to make one of them as be- tween themselves a surety, would not affect the creditor without his consent. Jones v. Dunhar- etal, 32 0. P. 136. 471 MORTGAGE. 472 fb) Wife. Where the wife of a mortgagor is a party to and bars her dower by t]ie mortgage, she is not improperly made a party defendant to a bill for foreclosure under the mortgage since the coming into force of 42 Vict. c. 22. Buildinq and. Loan Association v. Oa? swell, 8 P. E. 73.— Spragge. (o) Adding Parties. In a foreclosure suit, after final judgment, an order was obtained ex parte adding two parties as defendants, who had pendents lite and before judgment become interested in the equity of redemption, and directing that they be bound by the judgment unless, within fourteen days, they should move against the order. On appli- cation by the added defendants this order was rescinded ; and — Held, that they should not have been made parties after judgment. Abell v. Parr, 9 P. R. 564.— Dalton, Master. 3. Final Order and Decree. This «uit became abated between the date of the report and the time fixed by it for payment by subsequent encumbrancers. On an applica- tion for a final order for foreclosure, it was re- fused, and a new day was appointed, allowing the encumbrancers an additional time for pay- ment, equal to the time the suit remained abated. Biggar v. ]Vaij, 8 P. E. 158.— Blake. A final order of foreclosure should reserve a day for infant defendants to shew cause. Spragge C, was of opinion that the practice should be changed for the sake of putting an end to litiga- tion, and to the evil of having estates tied up for perhaps many years, but refused to change the practice in the present case. London and Gana- ■ dian Loan and Agency Go. v. Everitt, 8 P.R. 489. 4. Opening Foreclosure. Where after foreclo.sure, the rights of pur" ■ chasers have intervened, any equitable claim which the mortgagor may have previously had to open the foreclosure, is, in this country at all ■ events, to be considered forfeited. Campbell v. Holyland, L. K. ,7 Ch. D. 173 remarked upon, and Piatt v. Ashbridge, 12 Chy. 105 followed. Trinity College v. Hill et al, 2 O.E., Chy. J). 348. Eeversed on appeal. On a motion to open a foreclosure, the debt and costs amounted to about $3,000, and the property was worth $7,000. The Master under the circumstances set out in the report refused the motion, the plaintiflf having been forbearing, and the defendant negligent throughout. Miles V. Cameron, 9 P. R. 202.— Dalton, Master. See Johnston v. Johnston, 9 P. R. 259, p. 472. 5. Other Gases. Where a defendant by bill in a foreclosure suit •demanded a sale and paid $80 into court as a deposit :— Held, that although the costs of the ■sale would exceed that amount, the defendant could not be ordered to increase It, the amount being fixed by schedule S endorsed on the office -copy of the bill under Order 436. Cruso v. Close 8 P. E. 33.— Taylor, Peferee.—Vroudfoot. In an action of foreclosure upon a mortgage which contains a clause by which the principal falls due upon default made in payment of any instalment of interest, if the plaintifi' claims the benefit of the clause, and calls in the whole mort- gage debt, he is bound by his election and must accept principal, interest, and costs, whenever tendered, although he does not pray for a per- sonal order for immediate payment. Drummond V. Guickard, cited in Green v. Adams, 2 Chy. Chamb. 124, overruled. Cmsov. Bond, 10. E, Chy. D., 384 ; reversing S. C.,9 P. R. 111. An action for foreclosure of a mortgage is gov- erned by Rule 78 and no order allowing service is necessary and on default of appearance judgment may be entered on praecipe according to the for- mer practice in chancery. Chamberlain v. Arm- strong, 9 P. R. 212.— Boyd. The decree declared that the defendant was a trustee of the premises in question for the plain- tiff, and that the plaintiff was entitled to redeem on payment of what the master should find due, within six months after report, &c., and in de- fault of payment, the plaintiff was to be fore- closed. The report was dated 4th March, 1882, and appointed 18th April, 1882, for payment. The money was paid into the Bank of Commerce on that day, but by mistake to the credit of a suit of Johnston v. A. Johnston. On the 22nd April, 1882, the defendant's solicitor, on the usual affidavit of non-payment and certificate of bank manager, obtained an order ex parte dis- missing the bill with costs. On the 25th April, the defendant's sohcitor became aware that the money had been paid in to the credit of the wrong suit, but on the 20th April, he had been aware that the money was paid, though not aware of the exact nature of the mistake. On the 27th April, the defendant sold the premises :— Held, that the defendant must be considered identified with his solicitor as to all the informa- tion the solicitor had : that the order made dis- missing the bill, instead of foreclosing the plain- tiff, and also the master's report giving six weeks instead of six months for payment as required by the decree, were irregularities, sufBcient to notify the purchaser of something unusual in the pro- ceedings, and therefore that he could not rely on the final order dismissing the bill alone : that even if the order had been for foreclosure, under the facts of this case, it would be a proper exer- cise of the discretion of the court to open it up ; and that a suit commenced by the plaintiff to set aside the sale, did not estop him from obtaining relief under the motion. Gunn v. Doble, 15 Chy. 655, distinguished. Johnston v. Johnston, 9 P. R. 259-Dalton, JifasJe)-. — Proudfoot. On motion ex parte for a direction to the Registrar to insert in a proecipe judgment 0. foreclosure in a mortgage suit, an order for im- mediate payment of the amount due by the de- fendant, under his covenant, up to judgment, (the Registrar to take the account,) where a reference to the Master as to subsequent encum- brances was also sought : — Held, that the usual course must be followed, and that the defendant should be ordered to pay the amount found due forthwith after the Master shall have made his report. Sfm-th of Scotland Canadian Mortgagt Go. V. Beard, 9 P. R. 546. —Boyd. See Ozowshi v. Beaty et al, 8 P. K. 1™< p. 473. 473 MORTGAGE. 474 X. Sale. 1 . When it will be. Directed. Although by the general rule and course of proceeding in mortgage cases the mortgagor is entitled to six months to redeem, before a sale is ordered, the Court will, under special circum- stances, direct an immediate sale of the property, even as against the infant heirs of the mortgagor. Swift V. Minter, 27 Ohy. 217. See Western Canada Loan and Savings Co. v. Dunn, 9 P. R. 587, p. 230. 2. Parties. A mortgagee filed a bill for sale making cer- tain lien holders under the Act parties defen- dants, therein alleging that the work, by virtue of which their liens arose, was commenced after the registration of his mortgage : — Held that the hen holders should have been made parties in the master's office after decree by notice, and the plaintiff's costs of making them defendants by bill were disallowed in revision of taxation. Jackson V. Hammond et al., 8 P.E,. 157. — Thom, Taxing Officer. 3. Decree. Although a decree of sale should direct the same to take place with the approbation of the Master, the omission of such direction is no ground for moving to set aside the sale under the decree, where the same really took place with such approbation, e"en in a case where infants are interested. Sicker v. Richer, 11 Chy. 576. 4. Costs. Where mortgagees had a surplus in their hands after a sale under their mortgage, and S. claimed the surplus, but refused to give such proof as the mortgagees required of his title thereto: — Held, that as the mortgagees had acted reasonably in requiring proper proof, and failing to get it, had paid the surplus into court, they were entitled to their costs, of so doing, and to their costs of ap- pearing on S's, application to have the money paid out to him. Be Kingsland, 8 P. K. 77.— Spragge. See Jachson v. Hammond et al. 8 P. R. 157, 5. Other Cases. In a foreclosure suit the official assignee of an insolvent defendant paid 8150 into court to pro- cure a sale. The proceeds derived from the sale were much more than sufiicient to pay the plain- plaintiff's claim in full, but were insufficient to pay the subsequent incumbrancers : — Held, that the deposit should be applied in reduction of the second mortgagee's claim. Ozowski v. Beaty et al, 8 P. R. 146.— Blake. The bill was filed by a second mortgagee the first mortgagee not being made a party. At a sale under the decree, M. purchased the land, and afterwards paid the purchase money into court ; he then mortgaged the land, then con- veyed his equity of redemption, and then took out a vesting order. Grant, a subsequent mortga- gee, claimed payment of his claim out of the moneys in court. On the application of M. , the referee made an order, directing payment to the assignee of the first mortgagee of his claim out of the purchase money in court. It appeared that M. thought he was purchasing free from incum- brances, and was ignorant of the first mortgage. On appeal, Proudf oot, V. 0. , upheld the Referee's order. Fleming v. McDoitgall, 8 P. R. 200. A mortgagee preceded in ejectment against a mortgagor, and afterwards filed a bill in chan- cery against him for a sale : — Held, that as the mortgagee could since the Administration of Justice Act, obtain "in the chancery suit all the remedies he could obtain in the ejectment suit, the latter should' be stayed forever. Hay v. McArthur, 8 P. R. 321^Dalton, Q. C. Where a mortgagee comes in under a decree for partition or sale, and proves his claim and consents to a sale, he is not entitled to six months' interest, or six months' notice. Se Houston — Houston V. Houston, 2 0. R, Chy. D. 84. See Cmso v. Close, 8 P. R. 33, p. 471. XI. Pkoceedinos in Mortgage Suits. 1. Taking Accounts. The special endorsement on a bill claimed a certain amount to be due under the mortgage (which contained the usual covenant to insure) . After the service of the bill the plaintiff paid certain premiums of insurance. Blake, V. C. directed notice of settling decree and taking ac- counts to be served, and the plaintiff's claim to be allowed on proof of the payments being pro- duced. English and Scottish Investment Co. v. Ch-ay, 8 P. R. 199. A decree for redemption was made, which directed an account to be taken of the amount due by the plaintiff, representing the mortgagor, to the defendants. The defendants, on proving their claim in the master's office, produced their mortgages, and filed an affidavit verifying their claim, and stating that |20,309.88 was due them for moneys advanced by them to the mortgagor and secured by the said mortgages : — Held, by the Master in Ordinary and affirmed by Blake, V. C. that their claim was prima facie proven, and the onus of reducing the amount of it rested on the plaintiff. Coiirt v. Holland — Ex parte Doran, 8 P. R. 213. Where an amendment in a matter of account, as stated in the pleadings, would be allowed be- fore decree, a similar amendment should also be allowed, if asked for, in respect of the accounts filed after decree, in the Master's office. Court V. Holland, 4 0. R., Chy. D. 688. See also Court v. Holland — Ex parte Holland and Walsh, 8 P. R. 219. 2. Amendment of Statement of Claim. The plaintiff indorsed his writ of summons and filed his statement of claim to recover possession of the land in dispute, as being the assignee of a lease made by him to the defendants, who as- signed to a third party, who assigned and sur- rendered to the plaintiff. The defence was that the lease was in effect a mortgage, and fraud and want of consideration were alleged : — Held, that 475 MORTGAGE. 476 the plaintiff could not amend his statement of claim, and ask a foreclosure of the land as mort- gagee. Mcllharijty Y. McOinnis et al. , 9 P. E. 157.— WUson. 3. Costs. 42 Vict., c. 20, s. 11, 0., authorizing the taxa- tion of a mortgagee's costs by any party interest- ed, without any order to tax, applies to mort- gages executed before the passing of the Act. Ferguson v. Miglish and Scottish Investment Go. , 8 P. E. 404.— Taylor, Master. Multiplicity of suits by mortgagee where only one suit necessary. See Merchants' Bank v. Sparkes 28 Chy. 108, p. 476. On proceeding with the reference under the decree pronounced on the hearing, as reported 28 Chy. 356, the Master by his report found that therewas due to theplaintifffl, 104.99, which in- cluded a sum of $171.32 costs inourredin the suit brought by him to redeem : — Held, on appeal, — (affirming the report of the master) — (1) that the plaintiff was entitled to claim the costs so incurred, that proceeding having been taken in reality in defence of his rights as owner of an equity of redemption with the concurrence of C, through whom the appellant claimed — and, (2) that neither of the defendants could dispute the findings in that suit, but were estopped from questioning the amount found due therein to the same extent as Jarids under whom they claimed would have been, the proceeding being not in respect of a matter collateral to the mortgage in question in that suit, but virtually upon the same instrument, and thattherefore the ruleasto estop- pel by deed applied. Pierce V. Canavan,29 Chy. 32. A reference in a mortgage suit was directed to take accounts and to inquire whether a sale or foreclosure would be more beneficial. There were no incumbrancers. The defendants claimed ci-edit for payments endorsed on the back of the mortgage, which were in the deeeasedmortgagee's handwriting, but for all of which the defendants did not hold receipts. The plaintiffs disputed the payments not covered by the receipts. On revision the taxing officer disallowed the costs of the reference, as the master had found in favour of the defendants' contention: — Held on appeal that under G. 0. Chy. 312, the revising oiflcer might refer to the papers before the mas- ter, and determine from them whether the pro- ceedings were unnecessarily taken and that so much of the reference as related to the question whether foreclosure or sale was most beneficial ought to be allowed. Held, also, that if the credits endorsed on the mortgage were made by the mortgagee or signed by him, the plaintiff, his executor, ought not to have questioned the amount, and so much of the costs of the reference caused by taking an account should not be allow- ed. Purdy v. Parks, 9 P. R. 424.— Proudfoot. Where a mortgagee sold under a power of sale iu his mortgage, and the mortgagor afterwards brought action against him for an account, and payment over to him, of the surplus which he alleged was in the mortgagee's hands, and on taking the account it was found a balance of S136, was payable to the mortgagor : — Held, that the mortgagee must pay to the mortgagor his full costs of suit. Boulton v. Rowland, 4 0. E., Chy. D. 720. See McDonald, McDonald and Mwrsh, 8 P. R. 88, p. 468. Re Cronyn, Kew and Betts, 8 P.r! 372, p. 468. See also Kempt v. Macauley, 9 P R. 582. 4. Other Gases. Suit by creditors of mortgagee to attach mortgage debt. See Menzies v. Ogilvie, 27 Chy 456, p. 33. A mortgagee proceeded on the same day to foreclose the property of the mortgagor and his sureties by several bills upon their respective mortgages, and to sue at law in different actions the same parties on notes held by the plainti& to which the mortgages were collateral : — Held, that only one suit in equity was necessary, as all parties might have been brought before the court therein, all remedies given which might have been obtained at law, and all rights more conveniently adjusted between the parties in one than in se- veral suits, and the court would not be deterred from granting the relief by the circumstances of the decree being complicated. There were eon- sent minutes between the parties, except as to costs at law and in this court. Spragge, 0. ordered the plaintiff to pay the costs of the argu- ment before him, unless they were included in the matters the subject of the consent minutes. Merchants' Bank v. Sparkes, 28 Chy. 108. XII. MiSOELLAKEOtJS CaSBS. Where a purchaser of part of an estate subject to mortgage gave a covenant to pay a proportion of the mortgage money, and a bill was filed by the vendor's assignee to compeljpayment by the purchaser, the Court refused to give such relief, except upon the terms of the vendor's share of the mortgage debt being paid at the same time, although there was no covenant on the part of the vendor that he would pay. But the court refused to include a direction that the payment by the purchaser of his share should be condi- tional on the payment by other and independent purchasers of other parts of the estate of their shares of the sum due. In sucl a case, however, it would seem that any of such purchasers paying the amounts properly payable by others would be entitled to use the name of the plaintiff in proceedings against such defaulting purchasers, upon indemnifjring him against costs. Glemcm V. Booth, 27 Chy. 15. Held, that the giving of a mortgage by a de- visee was not a violation of a restraint against alienation. See Smith v. Faught et al. , 45 Q. B. 484. A mortgage is a " contract" within the mean- ing of the Insolvent Act of 1875, a. 130. SmUh v. Harrington, 29 Chy. 502. Fiduciary relations between mortgagor and mortgagee. See Thompson v. Holman, 28 Chy. 35 ; Kilbourn v. Arnold, 6 A. E. 158. Held, that the statute 42 Vict. c. 22, 0.: "An Act to amend the law of dower" does not apply to mortgages made before it was passed. Mai" tindale v. Glarkson, 6 A. R. 1. In 18(3l, W. M., the owner of real estate, created a mortgage thereon in favour of J.^ T. for $4,000. In 1863 he executed a subsec[uent mort- -477 MUNICIPAL CORPORATIONS. 478 ^age in favour of J. M. , the appellant, to secure the payment of |20,000 and interest, which was -duly registered on the day of its execution. In 1866, W. M. executed another mortgage to the respondent C, for the sum of $4,000, which was intended to be substituted for the prior mort- |;age of that amount, and the money obtained thereon was applied towards the payment there- of, and J. M. executed an agreement under seal — a deed poll — consenting and agreeing that the proposed mortgage to respondent C. should have priority over his. In 1875, J. M. assimied his mortgage for |20,000 to the Quebec Bank, with- ■out notice to the bank of his agreement, to secure acceptances on which he was liable, which assignment was registered, and superseded the agreement, which 0. had neglected to register. C. filed his bill against the executors of W. M., and against J. M., and the bank. The Court of •Chancery held that the respondent was not en- titled to relief upon the facts as shewn, and dis- missed the bill. The Court of Appeal affirmed the -decree as to all the defendants, except as to J. M., who was ordered to pay off the respondent's (plaintiffs) mortgage, principal and interest, but without costs. J. M. thereupon appealed to the .supreme court of Canada : — Held, affirming the judgment of the Court of Appeal, 5. A. R. 503, reversing 26 Chy. 280, (Strong, J., dissenting), that as appellant could not justify the breach of his agreement in favour of 0. , he was bound both at law and equity to idemnify C. for any loss he .sustained by reason of such breach. McDougall V. Campbell, 6 S. C. R 502. Right of municipal corporation to take a mort- gage from a manufacturer securing performance of conditions on which bonus was granted. See Tlie Oorporation of the Village of Brusseli v. I{onaldetal.,4:O.B.. 1. If a person borrows money from an innocent lender, and employs it in preferring a creditor, the lender is not debarred from suing for its re- payment ; and if he holds security, such as the mortgage from J. and R. to D., in this case, he can charge the ] uoney so loaned on such security. Court V. Holland et al, 4 0. R., Chy. D. 688. See McLennan v. Bannum, 31 C.P. 210, p. -414 ; MitcheU v. Strathy, 28 Chy. 80 p. 396. MORTMAIN. See Will. MULTIFARIOUSNESS. See Pleading. MUNICIPAL CORPORATIONS. L Extension and Separation of Munici- palities. 1. Debts and Liabilities, liow affected, 479. II. Members of Cottncils. 1. Qualification, 479. 2. Disqualification, 480. III. VoTKRs' List— S^ecPARLiAMENTARY Elec- tions. IV. Controverted Elections. 1. Who may be Relator, 481. 2. Practice. (a) Time for Moving, 481. (b) Disclaimer, 481. (c) Costs, 482. (d) Powers of County Court Judge, 482. V. Acceptance and Declaration of Of- fice, 483. VI. Vacating- Office by Non-attendance, 483. VII. Meetings of Council and CoNDtrcT of Business, 483. VIII. Officers of the Corpobation. 1. Tenure of Office, 484. 2. Treasurer and his Sureties, 484 3. Collectors and their Sureties — See Assessment and Taxes. IX. By-Laws. 1. Oenerally, 484. 2. Quashing By-laws. (a) By-laws not passed in the Interest of the Public, 484. (b) Who mail ^ove, 485. (c) Time of Moving, 485. (d) Costs, 485. X. General Powers and Duties of Cor- porations. 1. Eminent Domain, 485. 2. Granting to Railways Lands expressly Appropriated to Public Purpose3,i8S. 3. Bonuses to Manufacturing Companies, 486. 4. Aid to Railway Companies by Bonu — See Railways and Railway Companies. 6. Drainage of Lands. (a) Petition, 487. (b) Publication of By-laws, 488. (c) Assessment, 488. (d) Otiier Oases, 489. 6. Sewers, 490. 7. Auctioneers, 490. 8. Transient Traders, 490. 9. Markets, 491. 10. Assize of Bread, 491. 11. Public Health, 491. 12. Nuisances, 492. 13. Cattle Running at Large, 492. 14. Width of Tires, 492. 15. Fire Limits, 493. 479 MUNICIPAL CORPORATIONS. 480' 16. Public Morals, 493. 17. Dedicated Lands— See Dedication. 18. Regarding Assessment and Taxes- See Assessment and Taxes. 19. Boads— See Way. 20. Schools— See Public Schools. XI. Actions and Proceedings by and against Municipal Corpora- tions. 1. Oenerally, 493. »2. Negligence. (a) Generally—See Negligence. (b) In Construction of Drains and Sewers — See Water and Watercourses. 3. Mandamus to.— See Mandamus. Xn. Matters Keeerred to Arbitration, 493. XIII. Audit or County Attorney's Ac- counts — See County Attorney. I. Extension and Separation oe Munici- palities. 1. Debts and Liabilities how affected. The bill alleged that the municipal councils of the respective corporations had adopted and sanctioned certain terms and conditions for dividing and settling the several liabilities and assets of the corporations upon their separating, and that both parties accepted such settlements as a final settlement between them, and acted thereupon : — Held, on demurrer, that it was not necessary to allege that such acceptance was by by-law ; although Semble that at the hearing ii might be necessary to establish that such was the fact. The Corporation of the Villageof Gfraven- hurst V. Tlie Corporation of Township of Muskoka, 29 Chy. 439. See also Sub-head, XII., p. 493. II. Members of Councils. 1. Qualification. The defendant was not assessed for the year 1880, but in that year was assessed, on the 3rd of September, for the year 1881, upon unincum- bered leasehold property of the value of |4, 100. By by-law of the city of Ottawa this assessment was revised before the 15th November, and re- turned before the 31st December as and for the assessment roU for the year 1881. No appeal was had therefrom. The nomination took place on the 27th December, 1880, and the defendant was elected mayor of Ottawa on the 3rd Jan- uary, 1881 : — Held, that the election commenced on the nomination day; and the assessment roll mentioned, which was to take effect in 1881, and not before, was not the last revised assessment at that time, within the meaning of the by-law and E. S. 0. c. 180, a. 44, and the defendant could not qualify thereon. Eegina ex rel. Clancy v Mcintosh, 46 Q. B. 98. E. P. being the lessee of certain premises, he assigned his interest to H. P. after the assess- ment roll for that year had been returned, with E. P. assessed for the property. No notice of appeal against the assessment was served until several days after the time limited for so doing- had expired. The court of revision, on appeal,' substituted H. P. for E.' P. on the roll. On aa application to set aside the election of H. P. as--, an alderman, on the ground that the defendant was not rated on the roll when it was made out, and that he was not sufficiently qualified :— Held,, that the assessment roU was absolutely binding; and that its correctness could not be tried upott such an application : and that the want of notice was cured by R. S. 0. c. 180, s. 53. Begina ear rel Hamilton v. Piper, 8 P. R. 225.— Dilton, Q. C. — Armour. Held, under 43 Vict., c. 24, s. 3, that in esti- mating the defendant's property quahfication, the amount of the mortgages upon the property must be deducted from the assessed, and not- from the real value. Begina ex rel Kelly v. Im, 8 P. E. 432.— Osier. On the 9th December the liquor Moense of Booth Bros., of which firm respondent was a. member, was transferred to one of the partners, T. H. Booth. The nomination took place on 22nd December. On the books of the registry office the respondent's freehold property appeared incumbered to nearly its assessed value. It was shewn that the mortgages had been reduced, so as to leave the property worth, according to the^ assessed value, |963 over and above incumbran- ces : — Held, that the property qualification was. sufficient, but that the respondent was the holder of a license within the meaning of E. S. 0. c. 174, s. 74. Begina ex rel. Brine v. Booth, 9 P. R. 452. — Dalton, Master. Affirmed on appeal to the' y. B. Div. 3 0. E. 144. 2. Disqualification. A muuicipality passed a by-law to exempt, from taxation, for a term of years, a mill to be built within its limits by a firm of which defen- dant was a member : — Held that there was a. contract subsisting between defendant and the municipality, and that he was therefore disquah- fied from holding the office of reeve. Begina ex rel. Lee v. Gilmour, 8 P. R. 514. — Osier. An unlicensed person who, under the colour- of a license to his sou, whether in collusion -with the latter or on his own responsibility, sells- liquor by retail, is not disqualified under sec. 74 of the Municipal Act from holding the office of alderman, though he may have rendered himself liable to penalties for breach of the Liquor Li- cense Acts. Begina ex rel Clancy v. Conway, 46 Q. B'. 85. The declaration of qualification not having been made, leave was given to the defendant to make the same within ten days, otherwise leave was granted to file an information on the ground. that the defendant illegally exercised the fran- chises of the office. lb. The defendant and his brother were carrying on business as Booth Bros. , and had a license la the name of the firm to sell intoxicating Hquors. Before the nomination of members of the Park- 481 MUNICIPAL CORPORATIONS. 482 dale connoil the defendant, with the consent of the license commissioners, transferred his interest in the license to his brother, in order to qualify as a councillor, but the business continued as before : — Held, affirming the decision of the master in Chambers, 9 P. R. 452, that a license cannot lawfully be transferred except in the oases mentioned in R.S.O. c. 181, s. 28, none of which had occurred here: that the consentof the commis- sioners did not validate the transfer, and there- fore that the defendant, who retained his interest in the license, was not qualified to be a coun- cillor. Per Armour, J. The Act disqualifying a licensee should be construed strictly, and should not be extended to the partner of a per- son lawfully holding a license in his own name. Eegina ex rel. Brine v. Booth, 3 O. R., Q. B. D. 144. IV. CONTRO'VBB.TED ELECTIONS. 1. Tflio may be Relator. Held, that an alderman's right to the office on the ground of an insufficient declaration of quali- fication and for the want of qualification at the time of his election, might be questioned by a quo warranto at the instance of a ratepayer ijot a voter of or resident in the ward, and who therefore could not be a relator under the Mu- nicipal Act. Regina ex rel White v. Roach, 18 Q. B. 226, and KeUy v. Macarow, 14 C. P. 457, distinguished. Begina ex rel. Clancy v. St. Jean, 46 Q. B. 77. 2. Practice. (a) Time for Moving. Held, that the relator in this case was not too late, having applied in the next term after the election, and only one day after the time for moving under the statute. Regina ex rel. Clancy v. St. Jean, 46 Q. B. 77. See Regina ex rel. Clancy v. Mcintosh, 46 Q. B. 98, p. 483. (b) Disclaimer. Defendant was elected to the office of council- lor for a town, and accepted the office. Subse- quently and before the issue of the writ of quo warranto, the defendant knowing that his elec- tion was to be contested, sent the following instrument to the council: "Palmerston, Feb- ruary 7th, 1881. To the Mayor and Council of the town of Palmerston : Gentlemen, I beg to disclaim my seat at the council board, (Signed) G. S. Davidson :" — Held, that the above dis- claimer, not being in the form prescribed by R; S. O. c. 174, s. 194, was not sufficient to relieve the defendant from costs. Regina ex rel. Mitcliell V. Davidson, 8 P. R. 434.— Osier. Sect. 195 of the Municipal Act provides that the effect of a party disclaiming the office to which he has been elected shall be to give the same to the candidate having the next highest number of votes:— Held, that this meant the candidate having such number of votes who has not been elected to the council. Therefore, where the plaintiff was the candidate who was fourth in that order, the three highest on the list hav- 31 ing been declared elected, and one at the head of the poll resigned his seat, an injunction was granted to restrain the reeve and councillors of the village from preventing the plaintiff entering upon and discharging the duties of such office. Smith V. Petersville, 28 Chy. 599. The notice of the party resigning the office stat- ed that he resigned his "seat" in the council : — Held, sufficient ; that the plaintiff was ehtitled to his costs, although the Act requires notice of a resignation of the " office" to be given. lb. (c) Costs. A municipal election set aside, but without costs to the relator, on the ground that he ,was a confidential officer, (auditor, ) of the corporation, following Regina ex rel. McMillan v. DeLisle, 8 U. C. L. J. 290. Regina ex rel. Brine v. Booth, 9 P. R. 452.— Dalton, Master. See Regina ex rel. Mitchell v. Davidson, 8 P. R. 434, p. 481 ; SmUh v. Petersville, 28 Chy. 599, supra. (d) Powers of County Court Judge. A county court judge has power to grant a fiat in term time for the issue of a writ of quo war- ranto to try a contested municiprl election : — Held, that Rule 1. M. T. 14 Vict. , has become in- operative by the effect of subsequent statutory enactments, to which it is repugnant. Regina ex rel. McDonald v. Anderson, 8 P. R. 241. — Osier. A writ of summons in the nature ot a quo war- ranto having been issued, under R. S. 0. c. 174 s. 179, on the fiat of -a county court judge, re- turnable before himself, to try the validity of the election of an alderman of one of the wards of a city, the county court judge, before ap- pearance entered, made an order setting aside his fiat and the writ with costs for irregularity in the proceedings. On appeal from the deci- sion of the chief justice of the Court of Queen's Bench, 8 P. R. 497, discharging a summons to set aside such order : Per Wilson, C. J. , the county court judge had the' power to make the order. Per Osier, J., he had no such power, his power being limited to trying the validity of the election. The court being equally divided the appeal dropped. Regina ex rel. O'Dwyer v. Lewis, 32 C. P. 104. The judge of the county court ordered a writ of quo warranto to test the validity of the elec- tion of an alderman ; and subsequently, before appearance entered to the writ, set aside all pro- ceedings in the matter for irregularity. The re- lator thereupon applied in Chambers for a man- damus to compel the county judge to try the case, when the presiding judge (Hagarty, C. J. ) refused the writ, 8 P. R. 497, and on motion in banc, the court affirmed his ruling, 46 Q. B. 175. On appeal from this judgment, the appeal was dis- missed on the ground that the order of the county judge, if he had authority to make it, was not subject to review ; and if it could be reviewed the application should have been to the court, not to a judge in Chambers, as here ; and under all the circumstances the appeal was dismissed. 483 MUNICIPAL OORPORATIOlSrS. 481 but without costs. The writ of quo warranto having been issued and served, the county court judge had not power to set it aside. Regina ex rel. Grant v. Coleman, 7 A. E. 619. v. Acceptance and Declaration of OrriCE. The declaration required by the Municipal Act E. S. 0. c. 174, s. 265, from every person elected under the Act to any oflBce requiring a property qualification, is a pre-requisite to the discharge of the duties of such office. Where an alderman elect did not state in his declaration the nature of his estate in, or the value of the land, but de- clared that his property was sufiicient to qualify him " according to the true intent and meaning of the Municipal Laws of Upper Canada ":-Held, that the declaration was insufficient. Reqina ex rel. Clancy v. St. Jean, 46 Q. B. 77. The acceptance of office by a mayor elect, re- ferred to in R. S. 0. c. 174, s. 180, within a month from which a writ of quo warranto to try the validity of his election must issae, is a for- mal acceptance by the statutory declaration of qualification and office, and not a mere verbal acceptance by speech to the electors, or such like. Regina ex rel. Linton v. Jackson, 2 Cliamb. R. 18, dissented from. Regina ex rel. Clancy v. Mcintosh, 46 Q. B. 98. The declaration of qualification not having befen made, leave was given to the defendant to make the same within ten days, otherwise leave was granted to file an information on the ground that the defendant illegally exercised the fran- chises of the office. Regina ex rel. Clancy v. Conway, 46 Q. B. 85. VL Vacating Office by Non-attendance. The plaintiff and others, councillors of the town of Petrolia, attended a meeting of the council on the 5th April. They were absent at the next meeting called for and held on the 31st May and thenceforward, without authorization, till the 7th of July, when, at a meeting of the council, a resolution declaring their seats vacant and ordering a new election was put, and an amendment to refer the matter to the town soli- citor was lost ; whereupon the dissentients left the room, in consequence of which there was no quorum, when the original motion was put and carried : — Held, (1) that the three months should be counted from the 31st May, being the first meeting that the plaintiff's had not attended ; and that the resolution was therefore void, as well as on the ground that there was no quorum pre- sent when it was passed ; (2) that the court had jurisdiction to entertain a motion for an injunc- tion restraining the defendants from interfering with the plaintifis in the exercise of their official duties, and that the injunction might be award- ed upon an interlocutory application. Mearns V. The Corporation of the Town of Petrolia, 28 Ghy. 98. VII. Meetings of Council and Conduct of Business. See Mearns v. The Corporation of the Town of Petrolia, 28 Ohy. 98, supra. VIII. OrFICBRS OF THE CORPORATION. 1. Tenure of Office. Municipal officers appointed by the council hold office during the pleasure of the council and may be removed without notice and without cause. WiUon v. Yorh, 46 Q. B. 289. 2. Treasurer and his Sureties. Liability of corporation for fraudulent act of its clerk and treasurer acting within the scope of his authority, the corporation having received the benefit of the fraud. See The Molsons Bank V. The Corporation of the Town of Brochville, 31 C. P. 174, p. 69. Where a township treasurer was by his bond dated 6th October, 1874, bound to duly account for all moneys coming into his hands and appli- cable to the general uses of the municipality ;— Held, that clergy reserve moneys and money derived from the distribution of the provincial surplus, which had by by-law been specifically appropriated to educational purposes, were not within the condition of the bond, and that the operation of this bond was not extended to school moneys by the R. S. 0. c. 180, s. 213, and R. S. 0. c. 204, s. 221. The Corpora&on of the Township of Oakland v. Proper et al., 1 0. R., Chy. D. 330. IX. Bt-Laws. 1. Generally. A by-law must be reasonably clear and unequi- vocal in its language in order to vary or alter the common law or statutable rights. Crowe v. Steeper etal, 46 Q. B. 87. Semble, that R. S. 0. o. 174, s. 277, enacting that the powers of township councils shall be exercised by by-law — must be construed as refer- ring only to the exercise of powers of the council under the Municipal Act, and not to powers which may be exercised under a special Act passed for other purposes or by another Legisla- ture. The Corporation of the Township of Pem- broke v. The Canada Central R. W. Co., 3 0. R, Chy. D. 503. See Regina v. Pipe, 1 0. K 43, p. 493. 2. Quashing By-Laws. (a) By-laws not passed in the Interest of the Pvhlk. A by-law for closing up a square dedicated to the public and disposing of part thereof to a church contained a provision that the trustees of the church should pay all expenses in connection with the by-law, and that it should not take effect tin the municipality had been indemnified against loss by reason of passing it and of any proceed- ings to quash it : — Held, bad on its face, for it was plainly not passed in the public interest, bnt for the benefit of a particular class. In re Pech and the Corporation of tlie Town of Gait, 46 Q. B. 211. See In re Morton and the Corporation of & City of St. Thomas, 6 A. R. 323, p. 200. 485 MUNICIPAL CORPORATIONS. (b) Who may Move. Held, that the applicant in this case was not precluded from moving against the by-law by reason of his having expressed an opinion in its favour before its passage. In re Peck and the Corporation of the Town of Gait, 46 Q. B. 211. (c) Time for Jloving. The by-law dissolving a union of school sections was passed on the 7th April, and the application to quash wasnot made until December following : — Semble, that this delay, unexplained, would have lieen an answer to the application, which may be too late, although within the year fixed by the Act as the extreme limit. In re McA Ipine and the Corporation of the Township of Euphemia. 45 Q. B. 199. Where the plaintiff filed his bill seeking to ■quash a certani municipal by-law, passed to open a road, and also an award made thereunder : Held, that there was nothing inconsistent in this, and the plaintiff was not bound to elect be- tween attacking the by-law and attacking the award. Where, however, under such circum- atances, the plaintiff, being called on by the ■court to elect, had elected to attack the award, and consented to a decree setting it aside, and ■ordering a new arbitration, which arbitration he had prosecuted untU. another award was made, which he had not moved against within the time allowed therefor : — Held, he could not after- wards complain of having been forced to elect at the hearing. Harding v. Corporation of the Townihip of Cardiff, 2 0. R., Chy. D. 329. Held, that the by-law iu question not being void on its face, nor ultra vires, and the plain- tiff not having attacked it for more than a year after its passing, but having on the contrary ap- pointed an arbitrator to assess compensation thereunder, it had now become absolute and in- •controvertible : — Held, also, although such a by- law may not beconie effectual in law till regis- teition thereof, nevertheless non-registration does not prolong the time allowed by R. S. 0. c. 174, s. 323, within which it may be quashed, and such time does not count from the registra tion. lb. (d) Costs. Costs were not asked for in the rule, though they were at bar : — Held, that as costs are in the discretion of the court under the Judicature Act, this was no objection. In re Peck and the Cor- poration of the Town of Gait, 46 Q. B. 211. X. GENEEii Powers and Duties of Corpora- tions. i, 1. Eminent Domain. A by-law passed by a, municipal corporation oannot have the effect of taking any lands of the Crown in addition to those appropriated by the Crown for the purpose of highways in order to the opening up of the country. Bae v. Trim, 2.1 Chy. 374. There is a distinction between the rights con- ferred upon municipal corporations and railway 486 companies respectively to expropriate property, the former existing for the public good, the latter bemg commercial enterprises only. The charters of the latter are therefore more rigidly construed than are the powers of a municipal corporation. Harding v. The Corporation oftlie Township of Cardiff, 29 Chy. 308. Upon a construction of sections 373 and 456 of the municipal Act, (R. S. 0. c. 174) a municipal corporation has power to enter upon and take lands for the purposes permitted by the Act without first making compensation to the owner who is not entitled to insist upon payment as a condition precedent to the entry of the corpora- tion, lb. . Where n. municipal corporation had so en- tered, and a bill to set aside an award for im- proper conduct of the arbitrators and inadequacy of compensation failed, the court (Proudfoot, J. ) on dismissing the bill ordered the plaintiff to pay all costs, as the corporation had properly exer- cised their statutory rights. The question in- volved being of a public nature, the fact that the award was for an amount which iu other cases would be beneath the dignity of the court, was not any reason why the court should not enter- tain the suit. lb. 2. Granting to Railways Lands Expressly Ap- propriated to Public Purposes. See In re Bronson et al. , and the Corporation of the City of Ottawa, 1 0. R. 415. 3. Bonuses to Manufacturing Companies. Held, afiBrming the judgment of Proudfoot, V. C. , that a municipality, under 36 Vict. c. 48, s. 372, sub-s. 5, 0., has power to lend money for the encouragement of a manufacturing establish- ment, notwithstanding the use of the word "bonus" therein, which doe i not necessarily im- port a gift ; and they are therefore liable on de- bentures issued for the purpose of raising money to be so leat. The rate of interest on the de- bentures was seven per cent : — Held, that sec. 217 of 29 & 30 Vict, c. 51, has not been repeal- ed, though marked effete in the schedule pre- fixed to, and not re-enacted in, 36 Vict. c. 48, 0,, and that the above rate was therefore lawful. Quaere, whether the power to give would not in- clude power to lend. If there had been no power to lend, and the mortgage taken by the munici- pality to secure repayment of the money lent was invalid : — Quaere , whether this would afford any defence to the debentures ; and Quaere also, whether the municipality having received the consideration stipulated for, the debenture hold- ers might not have some remedy against the municipality, though not by direct suit on the debentures. Scottish American Investment Co. V. Corporation of the Village ofElora, 6 A. R. 628. Where the plaintiffs, a municipal corporation, passed a by-law to raise $20,000, to be given to the defendant to aid him in carrying on certain manufactures in the municipality, subject to a condition that he should give a mortgage on the premises for |10,000, and a bond for a further sum of 110,000, which said securities should be conditioned for the carrying on of such manu- factures for twenty years, and that during the 487 MUNICIPAL CORPORATIONS. said period he should keep invested at least $30,000 in the factory ; iand the defendant gave the bond and mortgage, conditioned as agreed, but the latter not specifying for what sum it was a security, and invested the |30,000 but did not carry on the manufactures as agi-eed : — Held, that E. S. 0. c. 174, s. 454 authorized the taking of the mortgage by the corporation: that it must be taken to be not a charge for any specific sum, but a security for any damages the plaintiffs might have sustained by the defendant's default to an extent not greater than |10,COO; that the court would relieve against a forfeiture of the estate ; and there should be a reference to ascer- tain the amount of the said damages, and on non-payment, a sale of the premises. The Cor- poration of the Village of Brussels v. Ronald et al. 4 0. E., Chy. D. 1. 5. Drainage of Lands. (a) Petition. A petition was presented under section 529 of the Municipal Act for the draining of certain lands, by constructing a drain in a certain direc- tion and deepening a stream. The petition was signed by eighteen persons, being a majority of those shewn by the assessment roll to be bene- fited by the work, viz., thirty-three. A resolu- tion of the councU was passed under which surveys and estimates were made. Subsequently five of the petitioners withdrew.some bypetitiouing fora simple clearing of the bed of the stream and some byiuformingthe couucilthatthey would dig their own drains themselves. Byasubsequent petition three more desired to do the work themselves. By another petition seven interested persons desired to add their names to those who were in favour of the work. The names of the six of the origi- nal petitioners remaining were not in the sched- ule to the by-law of those to be benefited. This left the number of petitioners at eleven, 'i he council having procured a second estimate, shew- ing that by diverting the direction of the drain the work could be done at less expense, passed a by-law reciting that a majority of those to be benefited had petitioned, and providing for the construction of the work according to the altered plans. No debentures had been issued, nor contracts let, when a motion was made to quash the by-law. Held, that the by-law should be quashed ; for (1) the council had no power to authorize the undertaking of any work other than that petitioned for, and if that was imprac- ticable or too costly they should have refused the petition ; (2) the petitioners had the right to withdraw at any time after subscribing the petition, and before the contracts were let or the debentures negotiated, i. e., while the council had control of the matters, the preliminary surveys and estimates being as much for the information of the petitioners as of the council ; (3) a sufficient number of petitioners having withdrawn to reduce the number below the ma- jority of those to be benefited, the by-law untruly recited that a majority, &c. , had petitioned. Re Misener v. Tlie Tomiship of Waivjleet, 4G Q. B. 457. A petition for a drainage by-law was signed by a majority of the owneis of the land designated in the petition, but the applicant was not one of the petitioners, nor was his land part, nor did he reside on any part of the land described in the petition, but the surveyor who made the exammation and prepared the estimates reported that his land would be benefited by the works and he was accordingly assessed, and the by-law was finally passed : — Held, that the by-law wa& valid. In re White and the Corporation of the Township of Sandwich East, 1 0. E., Q. B. D.530, (b) Publication of By-Laws. The omission of the words. ' ' during the term' next ensuing the final passing of the by-law "' from the notice with regard to a drainage by-law under R. S. 0. c. 174, s. 531, does not render the by-law invalid. Re McLean and the Cor- poration of the Township of Ops, 45 Q. B. 325. Where a by-law finally passed diifers from that published only in respect of changes made in the assessment by the court of revision and county judge, it is not necessary to publish such by-law again after such changes. lb. A proposed by-law of the township of Eoches- ter, in the county of Essex, relating to drainage, was published in a newspaper in Windsor, a large town, and, for all other than judipial and municipal business, practically the county town, and situate two miles from Sandwich, the county town . There was no newspaper published either in Eochester or in Sandwich, or in the next adjoining municipality; but there were papers- published in several small villages, somewhat nearer the township of Rochester than Windsor, but their circulation was much smaller in Eoches- ter than that of the Windsor paper : — Held, that the publication was sufficient ; since if the words "adjoining local municipality," as used in 42 Vict. c. 31, s. 27, were construed "next adjoin- ing," &c., it would be impossible to publish the by-law as directed by the Act ; and it did not form snflicient ground of objection thereto, that there were other papers a few miles nearer to Eochester than Windsor was. Se Galkmo and the Township of Eochester, 46 Q. B. 279. It was objected that no copies of the by-law or notices attached were posted up as required, but the applicant knew of the by-law before it passed, and appealed from his assessment to the court of i-evision : — Held, that the objectioa should not be given effect to. /n re White and The Corporation of the Tmonship of Sandwich East, 1 0. R., Q. B. D. 530. (c) Assessment. Where the engineer who made the assessment under a drainage by-law was not notitied, and was not pi-esent at the Court of Eevision, but was present on the appeals therefrom to the county judge, which were taken by all who ap- pealed to the Court of Revision : — Held, uo ground for setting aside the by-law. Re He- Lean and Corporation of the Township of Ops, 45 Q. B. 325. The engineer is the proper party to make th» assessment. The principle on which the assess- ments were made, of assessing agidnst a whole lot or a part of a lot owned by one person, when only some of its acreage was benefited, the value of such benefit : — Held, not erroneous ; and this- 489 MUNICIPAL CORPORATIONS. 490 -would at all events have formed no ground for quashing the by-law, as this was a matter of which complaint might have been made to the ■Court of Revision. lb. It was alleged that one member of the council was largely interested in the property to be drain- ed by the by-law but,— Held, that no interest, which springs solely from his being a ratepayer, •can disqualify a councillor or a member of a Court of Revision from performing his duties as such. Ih. On appeal to the County .Tudge he reduced the assessment on one lot by only half, the owner F. consenting, although according to the evidence it should have been further reduced. In distri- buting the amounts struck oflf among the other properties assessed he added nothing to the as- sessment of this lot, so fixed by consent, but he -certified that the other owners were assessed for less than they would have been but for F. 's con- sent :— Held, that R. S. 0. c. 174, s. 530, sub-s. 13, had been practically complied with. lb. (d) Other Cases. The arbitrators appointed by the plaintiff and •defendant municipalities, on an appeal by the •defendants from the report of the surveyor, made an award pursuant to the Municipal Act, where- by they adjudged that the deepening of a creek, &c., benefited lands in the defendant munici- pality, and that the latter should pay therefor 4350 ; but the award did not specify the lands which in their opinion were so benefited, nor •charge such lands with a just proportion of the •cost of the works : — Held, that for this reason the award was invalid. The Corporation of the Township of Thiirloio v. The Corporation of t!ie Township of Sidney, 1 0. R., Q. B. D. 249. Held, that the question whether the lands are in fact benefited is one for the court of revision, , -or the judge of the county court on appeal there- from. In re White and The Corporation of the Township of Sandwich East, 1 O. R. , Q. B. D. -530. Where, on the petition of the plaintiff and other ratepayers, a township corporation had jassed a by-law for the construction of the B drain, and the assessment of the lands to be benefited thereby, part of which the plaintiff owned, but the drain had i;iot been completed, though a reasonable time had elapsed, and a portion of the moneys assessed had been applied upon a certain other drain, not mentioned in the petition, the report of the public land surveyor made pursuant to R. S. 0. c. 174, s. 529, or in 1;he said by-law, and of no value to the said peti- tioners : — Held, that the plaintiff was entitled to an order compelling the corporation to complete the B drain according to the by-law, to an in- junction to restrain further misapplication of the moneys assessed, and to an account thereof, for that the by-law created a trust which had been violated :— Held, also, that the plaintiff was en- titled to maintain the action without the attorney- general. Smith V. The Corporation of the T'own- Mp of Raleigh, 3 0. R., Chy. Tj. 405. Held, also, that the fact that the moneys so •assessed, were so diverted pursuant to a resolu- 4ion of the council, passed in accordance with a promise made to certain of the petitioners for the B drain, who signed such petition and submitted to assessment on the faith of such promise, was no justification of such diversion : — Held, lastly, that this was not a case for arbitration, or, at all events, not a case in which the plaintiff was bound to proceed in that manner. lb. 6. Setvers. Sec. 464, sub. -s. 2, of 36 Vict. c. 48, enacts that the council of every city, town, and incorporated village, shall have power to pass by-laws, for assessing upon the real property to be immedi- ately benefited by the making, &c. , of any com- mon sewer, &c., "on the petition of at least two-thirds in number and one-half in value of the owners of such real property, a special rate," &o. The sub-s. is amended, so far as the same relates to the city of Toronto, by 40 Viet. c. 39, s. 2, by inserting after the words ' ' owners of such real property " the words " or where the same is in the opinion of the said council necessary for sanitary or drainage purposes." 40 Vict c. 6, respecting the revised statutes, passed in the same session, repealed 36 Vict. c. 48 ; and R. S. 0. c. 174, s. 551, aub-s. 2, corresponds with the repealed s. 464, sub-s. 2 : — Held, Armour, J., doubting, and Cameron, J., dissenting, 1. That under 40 Vict, c 6, s. 10, the R. S. 0., was sub- stituted for the repealed Acts and the amending Act applied to the R. S. 0. c. 174. 2. The amendment in 40 Vict. o. 39, was a reference in a former Act remaining in force to an enactment repealed, and so a reference to the enactment in the revised statutes, corresponding to the s. 464, sub-s. 2, within s. 11 of 40 Vict. c. 6. 3. That the city of Toronto, therefore, could pass a by- law in 1879 to construct a sewer, when neces- sary in their opinion for sanitary or drainage purposes, without any petition therefor. In re Brock V. The Corporation of the Citv of Toroxij, 45 Q. B., 53. 7. Auctioneers. The defendant having sold land by auction under a decree of the Chancery Division of the High Court of Justice, was convicted of a breach, of the by-law of the county of Huron, passed pur- suant to the Municipal Act, R.S.O. c. 174, s. 465, sub-s. 2, providing that it should not be lawful for any person to sell bypublic auction any wares, goods, or merchandise of any kind without a license : — Held, that the conviction was clearly bad, for the by-law did not refer to lands ; nor would the statute have authorized such a by-law. Begina v. Chapman, 10. R., Q. B. D. 582. 8. Transient Traders. Where goods are consigned to be sold on com- mission, and they are sold in the shop or premises of the consignee, and by him or on his behalf, the owner of the goods or the manager is not an occupant of such premises, nor a transient trader within the Municipal Act (R. S. 0. c. 174, s- 466, subs. 53, as amended by 42 Vict. c. 31, s. 22), merely because he accompanies the goods and assists in their sale : — Held, also, that the 491 MUNICIPAL COEPORATIONS. 4:92 validity of the by-law might be questioned on a motion to quash the conviction made under it. Segina v. Cuthbert, 45 Q. B. 19. J. brought an action against G., the police magistrate of the city of St. John, for wrongfully causing the plaintiff, a commercial traveller, to be arrested and imprisoned on a warrant issued on a conviction by the police magistrate, for violation of a by-law made by the common coun- cil of the city of St. John, under an alleged authority conferred on that body by .33 Vict. c. 4, passed by the legislature of New Brunswick. Section 3 of the Act authorised the mayor of the city of St. John to license .persona to use any art, trade, &c. , within the city of St. John, on payment of such sum or sums as may from time to time be fixed and determined by the common council of St. John, &c. ; and s. 4 empowered the mayor, &c. , by any by-law or ordinance to fix and determine what sum or sums of money should be from time to time paid for license to \ise any art, trade, occupation, &;c. ; and to declare how fees should be recoverable ; and to impose penalties for any breach of the same, &c. The by-law or ordinance in question discriminated between resi- dent and non-resident merchants, traders, &c. , by imposinga license tax of $20on the former audft40 on the latter : — Held, that assuming the Act 33 Vict. c. 4, to be intra vires of the legislature of New Brunswick, the by-law made under it was invalid, because the Act in question gave no power to the common council of St. John, of discrimi- nation between residents and non-residents, such as they had exercised in this by-law. Jonas v. Gilbert, 5 S. 0. E. 356. 9. Markds. The municipal council of the city of Hamilton passed a by-law that no person should, upon or after sale thereof, deliver any stove wood in or from any waggon &c,, otherwise than in or from a waggon of a certain capacity, the sides of which should be constructed of slats of a certain width and a certain distance apart from each other. The defendant was convicted of a breach of the by-law : — Held, that the by-law was ultra vires, ■for though the council had the right under the Municipal Act, K. S. 0. c. 174, s. 466, to provide for the weighing or measuring of wood, they had no power to enforce delivery, upon or after sale, in a particular kind of waggon. Beqina v . Smith. 4 0. E., Q. B. D. 401. 10. Assize of Bread. By-law 1128 of the city of Toronto declared what the weight of loaves should be, and enacted that the weight of each loaf sold or offered for sale should be stamped thereon, and that all bread offered for sale of any less weight than the ■weight fixed by the by-law should be seized and forfeited :— Held, that the by-law was intra vires and not unreasonable. In re Nasmith and The Corporation of tlie €ity of Toronto, 2 ,0. R. B. D. 192. ' ^' 11. Public Health. The members of the council of any munici- pality/ are health officers of the municipality by virtue of the Public Health Act, R. S. 0. c. 190, and as such they may enforce the provisions of ss. 3 to 7 of that Act without by-law ; but if they delegate their powers to a committee, they must do so by a municipal by-law. They cannot, how- ever, delegate any powers except those which they exercise under the Public Health Act. A by-law was passed by the mvanicipal council of the city of Brantford regulating the cleaning of privy-vaults, and imposing a tine of not less than f 1, nor more than $50 for a breach of its provi- sions : — Held valid, as the by-law was one under the Municipal Act, and not under the Public Health Act, which restricts the penalty to $20. The by-law, as set out in the report, was ob- jectionable, as delegating to persons not members of the council, the board of health, the powers; which, as municipal matters, belonged exclusively to the coancil. In re 3fackenzie and the Corpora- tion of the City of Brantford, 4 0. R., Q.B. D. 382. 12. Nuisances. The defendants passed a by-law pursuant "to- E. S. 0. c. 174, s. 466, sub-s. 17, as amended by 44 Vict. c. 24, s. 12, which by-law, by sec. 2 pro- vided that "No person shall keep, nor shall there be kept within the city of Toronto any pig or swine or any piggery " : — Held, that the by-law was ultra vires, as being a general prohibition against the keeping of pigs, and not restricted to- cases that might prove to be nuisances. Mc- Knight v. The City of Toronto, 3 O.R. , Q. B. D. 284. By sec. 3, sub-s. 2, the by-law provided that nO' cow should be kept in any stable, &c., situate at a less distance than fortyfeet from the uearestdwel- ling house, and where two cows were kept that the stable should not be less than eighty feet from the nearest dwelling house : — Held, that it was unnecessary to declare expressly that the keeping of cows within such distances was or might be a nuisance, but that the prohibition was in effect, such a declaration, that the distances prescribed were reasonable, and that the by-law as to that • was unobjectionable : — Semble, that it ^las not- bad in being so generally expressed that it would restrict the owner from keeping cows within the prescribed distances of his own dwelling house, and Held, that this objection not being clear- should not at any rate be allowed to prevail in favour of the appellant, whose case was not shewn to be within the terms of the objection. lb. 13. Cattle Bunning at Large. See Crowe v. Steeper et al, 46 Q. B. 87, p. 213.. 14. Width of Tires. A by-law of a town provided that no cue- should use any waggon, &c., upon any of the- streets of the town for drawing brick, stones, &o., when the weight of the load should exceed. 1,500 pounds, unless the tires of the wheels w-ere of a specified width ; but the by-law was not to apply to any waggon conveying lumber or goods, from the mill or manufactory thereof into the town if distant more than two miles from the town limits, nor to any person passing through. the town with vehicles loaded with the said- articles : — Held, bad, as discriminating as against residents of the town in favour of others :— Held, also, that a conviction under such by-law was. 493 MUNICIPAL CORPORATIONS. 494 bact, for not stewing that defendant was not a person passing through the town, and for impos- ing imprisonment with hard labour. Eegina v. Pipe, 1 O. R., Q. B. D. 43. See Hodge v. The Queen, 9 App. Cas. 117, p. 120. 15. Fire Limits. A city corporation passed a by-law under R. S. 0. c. 174, s. 467, subs. 6, which defined fire limits, within which buildings were to be of in- combustible material ; the roofs to be of certain metals, or slate, or shingles laid in mortar not less than half an inch thick, and no roof of any building already erected within the fire limits to be relaid or recovered except with one of the enumerated materials. The defendant was con- victed for having laid new shingles on his wooden house without laying them in mortar. The house had been standing for many years before the by-law was passed : — Held, that the by-law was ultra vires, in so far as it referred to exist- ing buUdings or ordinary repairs or changes thereof, not being additions thereto. Regina v. Boward, 4 0. R., Q. B. D. 377. 16. Public Morals. The conviction was under a by-law, for writing and posting up an indecent placard, and the placard was a criminal libel. Qutere, Per Cam- eron, J., whether the municipality could thus make a new offence, and award a new or ad- ditional punishment for what was already a crimi- nal offence. McLellan v. McKinnon, 1 0. K., Q. B. D. 219. XI. Actions and Peocbedings by and against Municipal Corpokations. 1. Oenerally. Against surveyor for negligence in making im- proper survey. See The Corporation of the Town- ship oj Stafford v. Bell, 6 A. R. 273, p. 498. Liability of municipal corporation for contract not under seal. See Silsby v. The Corporation of the Village of Dunnville, 8 A. R 524, p. 148. Compelling railway to repair highways. Frame of suit. See Fenelon Falls Y. Victoria E. W. Co., 29 Chy. 4. Action for false imprisonment. Void assess- ment. See McSorley Y. The Mayor, &c., of the City of St. John et al-, 6 S. C. R. 531. Writ of prohibition to municipal corporation. See Cote v. Morgan, 7 S. C. R. 1, p. 31. See The Molsons Bank v. Tlie Corporation of the Town of Brochoille, 31 C. P. 174, p. 69. XII. Mattebs Refbbeed to Akbitkation. The court has power to enlarge the time for making an award, although the same has not been made ' ' within one month after the appoint- ment of the third arbitrator," as required by s. 377 of the R. S. O. c. 174. In re the City of Toronto and Scott, 8 P. R. 318.— Wilson. The general enactments relating to arbitration apply to awards under the Municipal Act. lb. In extending the time in this case the matters referred were remitted to such persons as the court should appoint under the Municipal Act, s. 385. lb. Semble, that the combined effect of sees. 377 and 380 of the Municipal Act, is to enable the arbitrators lq cases coming within these sections tQ extend the time for making their awai d be- yond the month. Township of Thurlow v. Town- ship of Sidney, 29 Chy. 497. The plaintiff municipality sued upon an award whereby the defendant municipality was ordered to pay their proportion of the cost of a drain con- structed by the plaintiffs. It was shewn that the arbitrators met frequently and adjourned from time to time, counsel for the defendants ap- pearing before the arbitrators and raising no ob- jection to such adjournments, or that the month from the date of the appointment of the third arbitrator, as prescribed by sec. 337 of the Muni- cipal Act, had elapsed without any award having been made : — Held, that an award made after the expiry of the month was valid, lb. Held, that the arbitrators on the separation of the united townships, under R. S. 0., c. 174, s. 28, should not take into consideration moneys received by the union, under 36 Vict. c. 47, 0., from the Government on account of the Muni- cipal Loan Fund, and appropriated by the union to the purposes authorized by that Act ; but that they might apportion any part of it remaining unappropriated, and in doing so need not be governed by the population of the several town- ships according to the census of 1871, as provided for the distribution by the Government under that Act. The duty of such arbitrators is to as- certain the assets of the union, real and personal ; dispose of the personal property as may be just ; make proper allowance for the real estate to the township deprived of it by the separation, and for the personal propertj' assigned to either municipality in excess of its share ; and ascer- tain and apportion the liabilities. They should consider the value of the real property of the union in each township as an asset, and what al- lowance, if any, should be made by the town- ship retaining it under the statute to the separat- ing township. — In re the Corporation of the Town- ship of Albemarle and the Corporation of the United Townships of Eastnor, Lindsay, and St. Edmunds, 45 Q. B. 133. The provisions of sec. 383 of the Municipal Act requiring arbitrators to take and file for the information of the court full notes of the evi- dence, or a statement that they proceeded upon skill or knowledge possessed by themselves, or upon a view, in making their award, are impera- tive, and the omission to comply vidth them is fatal to the award. Li re Albemarle, et al., 46 Q. B. 183. From reading the award made in this matter, and the evidence and documents filed, it was im- possible for the court to ascertain the reason for the award, and so impossible to consider the matter upon the merits as required by sec. 385 ; and the evidence and documents which were filed appeared not to support the award, which was therefore set aside, lb. The arbitrators having made two previous awards, which had both been referred back to them, and great expense incurred, the court 495 NEGLIGENCE. 496 refused to refer the matter back to them, but ordered that it be remitted to the judge of the County Court, unless counsel could agree upon such facts as would enable the court to deal with the matters in dispute. Ih. In proceedings upon arbitration between a city and county under sees. 22, 445, 446, and 447 of the Municipal Act, the questions submitted are largely in the discretion of the arbitrators, no principle or rule being laid down by the statute. Where, therefore, arbitrators, in forming esti- mates of the proportion of expenditure to be borne by the city and county under these sec- tions, took population as a basis instead of the assessment rolls : — Held,.that this was no ground for interference. The court refused also to interfere with the compensation awarded for care and maintenance of prisoners. The arbitrators having awarded as to the macadamized road lying in the county and city, a matter not submitted to them, the clause was struck out of the award with costs, which were fixed at f 10. In re the Arbitration between the Corporation of the city of Si. Catharines and the Corporation of the county of Lincoln, 46 Q. B. 425. A portion of the township of Sarnia was added to the town of Sarnia by proclamation of the Lieutenant-Govemour. The former municipality was indebted to the Province for certain drain- age works under the provisions of R. S. O. c. 33, in respect of roads benefited by the drains. The arbitrators, in settling the matters in dispute between the two corporations, refused to con- sider this indebtedness, and made their award without adjudicating thereon: — Held, that the award was invalid, for the liability in respect of the roads was an ordinary debt payable out of the general funds of the township, to which the town should contribute. The award directed the township to pay a certain sum to the town : — Held, bad ; for the Municipal Act, R. S. 0. c. 174, s. 53, only provides for a payment by the town to the township. In re The Village of Point Edward and the Township of Sarnia, 44 Q. B. 461, distinguished. Re The Corporation of the Township of Sarnia and The Corporation of the Town of Sarnia, 1 0. R., Q. B. D. 411. See Harding v. the Corporation of the Town- ship of Cardiff, 29 Chy. 308, p. iSQ ; Smith v. The Corporation of the Township of Raleigh, 3 0. R. 405, p. 490, See also Harding v. The Corpora- tion of the Township of Cardiff, 2 O.R. 329; In re the Corporation of the Town of Ingersoll and Car- roll, 1 0. R. 488. MUNICIPAL LOAN FUND. See In re the Corporation of the Township of Albemarle and the Gor/iorationof the United Town- ships of Eastnor, Lindsay, and St. Edmunds, 45 0,- B. 133, p. 494. MURDER. See Cmminal Law. MUTUAL INSURANCE COMPANY. See Insurance. NAME. Of Coepokations — See Oorpobations. See also, Sears v. Tlie Agricultural Ing. Go. et al, 32 C. P. 585. NATURALIZATION. See Alien. NE EXEAT REGNO. Writ of, in Cases of Alimont — See Husband AND Wife. The sureties on a statutory bail bond under a writ of ne exeat Provinoia have no power to sur- render their principal as at common law. An application by sureties for discharge from a bond and for repayment of the money paid to the sheriffas collateral security was refused. Richard- son V. Richardson, 8 P. R. 274. — Proudfoot — Spragge. NEGLIGENCE. I. Contributory Negligence, 496. II. Parties Liable, 497. 1. Municipalities — See Water and Water Courses — Way. 2. Valuators — See Valuator. III. Erection of Buildings and Removal OF Lateral Support — See Build- ings — Lateral Support. IV. Damages Recoverable. 1. Actimi by Representatives of Persons Killed by Negligence, 498. V. Of Agents — See Principal and Agent. VI. Of Attorneys — See Attorney and So- licitor. VII. In Presentment op Bills or Notes — See Bills or Exchange and Pro- missory Notes. VIII. Delay — See Laches. IX. By Fire— 5^ee Fire. X. By Railways — See Railways and Railway Companies. XI. New Trial in Actions for — See New Trial. I. Contributory Negligence. Liability of Accident Assurance Co. in eases of contributory negligence. See Neill v. Tlie Travellers' Ins. Co., 31 C. P. 394; 7 A. R. 570. Submitting question of contributory negligence to jury. See Bennett v. The Grand Trunk R. W. Co., 7 A. R. 470; Maw v. The Townships of King and Albion, 8 A. R. 248 ; Edgar et ux. v. Northern R. W. Go., 4 0. R. 201. 497 NEW TEIAL. 498 See Klein etal. v. The Union Fire Ins. Co. et al. , .3 0. R. 234, p. 371 ; Corporation of the Town- ship of Stafford v. Bell, 6 A. R. 273, infra. See .also McCallum v. Odette, 7 S. C. R. 36. See also ' 'Railways and Railway Companies .' II. Pakties Liable. Action against a clerk of a municipality for emitting names from the collectors' roll. — Non- averment of negligence. See IVie Corporation of the, Town of Petcrboroui (Ofi'.)—Riiinicle v. Oam'j-jn, I H. E. G. 70. Wliere a candidate in good faith intended thit his election should bee inducted legiUy, and hil printed anl circulated throughout the constitu- ency a synopsis of the new law as to corrupt prictices, anl had erased an editorial article to be printed in a newsp iper, and liad taken trouble to liive the law explained to the electors. — Held, that although mmy of the acts done during the election created doubt and hesitation in the mind of the judge, yet as the return of a mem- ber ought not to be lightly set aside, the judge ought to be satisfied that the acts done were done to influence the electors and so done corruptly, and this election was upheld. )fe>it Toronto E'ec- tiori (0>it.)—.irm4roiii v. Oroik<, I H. E. 0. 97. Where evidence of an act of keeping open his tavern on polling days and selling liquor therein as usu.al, by P., an agent of the petitioner, came out on cross-examination, and during the argu- ment the evidence was objected to because the charge was not in the particulars, the case was not considered. North Victoria Election (Oat.) — McRae V. Smith, 1 H. E. 0. 252. Tlie evidence respecting a charge of bribery, by payment of a disputed debt, was held insuffi- cient to sustain the charge. lb. On a charge that one 0. bribed a voter by pro- mising him to procure a deed of his land for him if he would procure votes for the respon- dent : — Held, on the evidence, that though the voter had so represented,, the procuring of the deed had nothing to do with the election. Sem- ble, that 0. was not an agent for whose acts the respondent was responsible. North Middlesex Election (Ont.) — Cameron v. McDoucjall, 1 H. E. G. 376. A witness stated that he had received a letter from a voter, asking for the fulfilment of an oOfer as to his vote, but the letter was not produced : — Held, that it was not proved that the letter in question was written by the voter referred to. lb. One S. an alleged agent of the respondent, made offers of sheepskins to two -voters as to their votes at the election, but he swore the offers were made in jest ; but as the evidence did not shew that S. was an agent of the respondent at the time of the alleged offers, no effect was given to the charge. lb. A statement that an offer to bribe was made in jest should be received with great suspicion ; 543 PAELIAMENTARY ELECTIONS. 5U a briber may make an offer which he intends should be taken seriously, and then, if not ac- cepted, he may assert it was made in jest. lb. A promise to work for a voter, made without reference to the election and as a joke, not evi- dence of bribery. Halton Election [Dom.)— Cross et al. V. MMramy, 1 H. E. C. 736. The respondent, in a constituency where 642 persons voted, received .^36 votes, and his election expenses were about $2,000. The money was en- trusted by the respondent to one 6. , with a caution to see that it w as used for lawful purposes only. About |1,200 of this money was given by 6. to one W., who distributed it to several persons in sums of $40, |100, 1200 and $250. No instructions as to expenditure were given by G. to W. , or by W. to the persons amongst whom he distributed the money ; and by the latter several acts of bribery were committed. The respondent publicly and privately disclaimed any intention of sanctioning any illegal expenditure ; but made no inquiries after the election as to how the money had been spent until a week or two before the election trial. He denied any act of bribei-y, direct or indirect, or any knowledge thereof ; and no proof was given of a personal knowledge on his part of any of the specific wrongful acts or payments proved to have been committed by persons amongst whom his money had been distributed: — Held, That under the peculiar circumstances of the respondent's canvass, and on a review of the whole evidence, the respondent's emphatic denial of any corrupt motive or intention should be accepted. Niagara Election [Dom.) — Blach et al V. Plumb, 1 H.E.C. 568; 10 C.L.J. 317. Held, that the persons amongst whom the re- spondent's moneys had been distribated by W., and persons acting under them, were sub-agentsof respondent, and that their corrupt acts avoided the election. Semble, that no limit can be placed to the number of parties through whom the sub-agency may extend, lb. jff Money had been contributed by the respon- dent and by his friends for the purposes of the election, which had been placed in the hands of one C, a personal and political friend of respon- dent, who gave it without any instructions or warnings to such committee-men as applied for it. A great deal of this money was spent in corrupt purposes, in bribery, and in treating to the extent of avoiding the election. The respon- dent in his evidence stated that he did not, directly or indirectly, authorize or approve of or sanction the expenditure of any money for brib- ery, or a promise of any for such purpose, nor did he sanction or authorize the keeping of any open house, and that he was not aware that any open houses had been kept, and that he always impressed on everybody that they must not vio- late the law. There was no affirmative evidence to shew that the money which the respondent knew had been raised for the purposes of the election was«o large that as a reasonable man he must have known that some portion of it wovild be used for corrupt purposes : — Held, that look- ing at the whole case, and at this branch of it, as a penal proceeding, the respondent should not be held personally responsible for the corrupt practices of his agents. Kingston Election (Dom.) —Stewart v. Macdonakl, 1 H. E. C. 625; 11 0. L. J. 19. Evidence of corrupt practices committed by persons in the interest of both candidates at the previous election, may be given at the trial of the second petition, with the view of striking oil" the votes of any such persons who may have voted at the second election. Cormcall Election (2) (Dom.)—Bergin-v. Macdonald, 1 H.E.C. 647; 11 C. L, J. 81. The respondent canvassed a voter, who at the trial swore that after he had agreed to vote for him, the respondent promised to give the voter some work ; the respondent denied the promise : — Held, although the voter appeared to be a truthful witness and was not shaken on cross-examination, that the promise of employ- ment was not made out beyond all reasonable doubt. North Ontario Election [Dom.)- Gibbs : V. Wheler, 1 H. E. 0. 785. ! A charge that the respondent promised to give ; a voter certain work to do if hevotedfor him, was j disproved by the evidence of the respondent and I another, and by the admissions of the voter made I to other parties. Hcdton Election (Dom.) — C'toss- |v. McCranty, 1 H. E. C..736. The charge against the respondent and oneB., ' of an offer of money to, and to procure an ap- pointment as justice of the peace for, a voter in \ consideration of his voting for the respondent, was supported by the evidence of the voter who- I shewed bitter hostility to B. ; but the charge j was denied by the respondent. The evidence I shewing the statement to be improbable, and I that the election contest was carried on by the respondent with a scrupulous and honest en- deavour to avoid any violation of the law against, corrupt practices, the charge was dismissed, lb. A charge against an agent of the respondent, that he had promised to procure the office of police magistrate for one W., was denied by the agent of the respondent ; and it further appear- ing that W. had acted on the committee, and voted, for the opposing candidate, the charge was dismissed. South Ontario Election (Dom.) — AIcKay v. Glen, 1 H. E. 0. 751. Conrlicting Erideiice.} — Where the evidence as to the offer of bribes was contradictory, and the parties making charges of bribery appeared tO' have borne indifferent characters : — Held, that the offer of bribes was not satisfactorily estab- lished. Welland Election, (Out.) — Buchner v. Currie, 1 H. E. C. 187. Where one party affirmed and the other party denied a corrupt offer between them as to voting: for the respondent : — Held, that the offer was not suflicently proved. Dundas Election (Out.) — Cook V. Broder, I H. E.G. 205. Where in evidence of offers of bribery, an as- sertion on one side is met by a contradiction on the other, the uncorroborated assertion is not- sufficient to sustain the charge. ^Yest Peterboro' Elcction( Ont.)— Scott V. Cvx, 1 H. E. C. 274. A charge of bribery ' against the respondent, where the evidence was unsatisfactory and re- pugnant in itself, and rested more on suspioioa than on clear positive proof, was held not proven. North Ontario Election (Ont) — McCaskill v. Pax- ton, 1 H. E. G. 304. 545 PAELIAMENTARY ELECTIONS. 546 The refpoEclciit was charged with several acts of corrupt practice. Each separate charge was supported by the evidence ot one witness, and was denied or explained by the respondent. The learned judge trying the petition— Held, that if each case stood by itself, oath agaiust oath, and each witness equally credible, and their being no collateral circumstances either way, he would have found that each case was not proved ; but as each charge was proved by a credible witness, the united weight of their testimony overcame the effect of the respondent's denial ; and on the combined testimony of all the witnesses, he held the separate charges proved against the respon- dent :— Held by the Court of Appeal (reversing Wilson, J.), that in election cases, each charge constitutes in effect a separate indictment, and if a judge on the evidence in one case dismisses the charge, the respondent cannot be placed in a worse position because a number of charges are advanced, in each of which the judge arrives at a similar conclusion, and therefore the separate charges above referred to were held not sustained. Muskoka Election {Ont.) — Starratt v. MUler, I H. E. C. 458; 12 C. L. J. 193. The respondent was charged with corrupt practices, in that, when canvassing one C, a voter who said he would not vote unless he was paid, he said he was not in a position to pay him anything, but that if C. would support him, one of his (the respondent's) friends would come and see about it. The respondent as he was leaving the voter's house, met one K., a supporter, who, after some conversation, went into C.'s house and gave him $5 to vote for the respondent. The charge depended upon the evidence of the voter C. and his wife. The respondent denied making such a promise ; and he was sustained by K. as to a conversation outside C.'s house, in which the respondent cautioned K. not to give or pro- mise C. any money. The election judge on the evidence found that the respondent was not per- sonally implicated in the bribery of the voter C. by K. Centre Wellington Election {Z>om.) — Iron- iidev. Orton, 1 H. E. C. 579. Before an election judge finds a respondent or any other person guUty of a corrupt prac- tice involving a personal disability, he ought to be free from reasonable doubt, lb. A number of separate charges of corrupt prac- tices against an agent of the respondent, based upon offers or promises, and not upon any act of such agent, each of which depended upon the oath of a vntness to the offer or promise, but each one of which such agent directly contra- dicted, or gave a different colour to the language, or a different turn to the expressions used, which quite altered the meaning of the conversation, or constituted in effect a complete or substantial denial of the charges attempted to be proved against such agent : — Held, 1 . That although in acting on such conflicting testimony, where there was a separate opposing witness in each case to the testimony of the witness supporting the charge, the election judge might be obliged to hold each charge as answered and repelled by the counter evidence, he could not give the like effect to the testimony of the same witness in each of the cases where the only opposing wit- ness is confronted by the adverse testimony of a number of witnesses, who, though they do not corroborate one another by speaking to the same 35 matter, are contradicted in each case by the one witness. 2. That the more frequently a wit- ness is contradicted by others, although each opposing witness contradicts him on a single point, the more is confidence in such witness affected, until, by a number of contradicting witnesses, he may be disbelieved altogether. 3. That acting on the above, and on a considera- tion whether the story told by the witness in support of the charge is reasonable or probable in itself, the charges of corrupt practices against the agent of the respondent, set out in the judg- ment, were proved. North Renfrew Election (Dom.)— White v. Murray, 1 H. E. C. 710. Charges against the respondent, that he had promised an office to the son of a voter, and a contract to the voter himself, were contradicted by other evidence, and dismised. Soiith Ontario Election (Dom.)— McKay v. Glen, 1"H. E. C 751 ; 3 S. C. E. 651. 3. Treating. (a) Generally. Treating at an election, in order to be criminal, must be done corruptly, and for the purpose of corruptly influencing the voter. South Norfolk Election (Dom.)—Decow v. Wallace, 1 H.E.C.660. Treating is not per se a corrupt act, except when so made by statute ; but thu intent of the party treating may make it so, and the intent must be judged by all the circumstances by which it is attended. North Middlesex Election {Ont.)~Cameron v. McDoiigall, 1 H. E. C. 376; 12 C. L. J. 14. Where a charge of a corrupt intent in treating is made, the evidence must satisfy the judge, be- yond reasonable doubt, that the treating was in- tended directly to influence the election, and to produce an effect upon the electors, and was so done with a corrupt intent. Glengarry Election (Ont.) — McLennan v. Graiq, 1 H. E. C. 8. Reasonable refreshments furnished bona fide to committees promoting the election are not illegal. South Grey Election (Ont.) — Hunter v. Lauder, 1 H. E. C. 52; 8 C. L. J., 17. Treating, when done in compliance with a cus- tom prevalent in the country and without any corrupt intent, will not avoid an election. Wei- land Election (Ont.) — Beattyy. Cvrrie, 1 H. E. C. 47. The general practice which prevails here of persons drinking in a friendly way when they meet, would require strong evidence of the pro- fuse expenditure of money in drinking, to induce judge to say it was corruptly done, so as to make it bribery or treating at common law. Kingston Election (Dom. ) — Stewart v. Macdonald, 1 H. E. C. 625; 11 C. L. J. 19. (b) By Candidates. The treating of persons by the candidate at a. tavern during his canvass — Held, under the evi- dence, not to be a treatingjof electors with cor- rupt motives. London Election (Ont.) — Jarman V. Meredith, 1 H. B. C. 214. 547 PARLIAMENTARY ELECTIONS. 548 About an hour after a meeting of a few friends of the respondent at a tavern, one of their- num- ber was sent some distance to buy oysters for their own refreshment, of which the parties and others partook. The following day a friend of the respondent treated at a tavern, and not hav- ing change, the respondent gave him 25 cents to pay for the treat : — Held, not to be corrupt treat- ing, nor a violation of 36 Vict., c. 2, s. 2, 0. Welland Election {Out.) — Buchner v. Gurrie, 1 H. E. C. 187. Semble, where treating is done by a candidate in orderj to make for himself a reputation for good fellowship and hospitality, and thereby to influence electors to vote for him, it is a species of bribery which would avoid his election at common law. North Middlesex Election (Ont.) —Cameron v. McDoxigall, 1 H.E.C. 376; 12 C. L.J. 14. When the respondent who, in the course of his business as a drover, had been in the habit of treating at taverns, treated during his canvass, but to a less extent than was his habit, and not apparently for the purpose of iagratiating him- self with the electors : — Held, under the circum- stances, that such treating was not corrupt, and his election was not avoided. lb. See Olengarry Election (Ont.) — McLennan et al v. Craig ei al., 1 H. E.C.8, p. 548 ; Dundas Elec- tion {Ont.)— Cook v. Broder, 1 H.E.C. 205, p. 549- (c) By Agents. The furnishing of refreshment to voters by an agent of a candidate, without the knowledge or consent of the candidate and against his will, will not be sufficient ground to set aside an election, unless done corruptly or with intent to influence voters. East Toronto Election (Ont.) — Rennlck v. Cameron, 1 H.E.C. 70; 8 C.L.J. 113. Where the object of an agent in treating is to gain popularity for himself, and not with any view of advancing the interest of his employers, such treating is not bribery. lb. One F. , an agent of the respondent, on the day of the nomination of candidates to contest the election, and while the speaking was going on, treated a large number of persons at a tavern across the street from the place of the nomina- tion, for which he paid |7 or $8 : — Held a cor- rupt practice by an agent of the respondent, which avoided the election. Dundas Election {Ont.)— Cook V. Broder, 1 H. E. C. 205. K., an agent, while canvassing a voter in Ward No. 6, gave him money to get beer, for which the voter paid a lesser sum, and as the voter was poor, told him to keep the change :— Held, xm- der the circumstances, not an act of bribery. London Election {Ont.)—Jarman v. Meredith. 1 H. E. 0. 214. One D., who had been a candidate for various offices for twenty years prior to the election in question, and had freely employed treating as an element in his canvassing, became an agent of the respondent, and treated extensively, as was his common practice, during the election. The respondent was aware of D.'s practices, and once in the early part of the canvass, cautioned D. as to Ms treating, but never repudiated him as his agent :— Held, on the evidence, that as D. did no more in the way of treating during the eles- tion than he had done on former occasioas, and had employed treating as he ordinarily did as his argument, and had not used it as a means of corruptly influencing the electors, he was not guilty of a corrupt practice. Hast Elgin Elec- tion (Dom.)—Blue\. ArheU, I H. E. C. 769. Semble, the treating proved in this case, if practised by one not theretofore given to such practice, would have been sufficient tohaveavoid- ed the election, lb. Observation on the law as it now stands, as holding out inducements to candidates to employ men who are habitual drinkers to canvass by systematic treating, and thus cause electioneering to depend upon popularity aroused by treating, rather than the merits of the candidates, or the measures they advocate. lb. One M. canvassed a voter on poUing day, and urged him to vote for the respondent, and, while canvassing, treated the voter four times; the voter then went and voted : — Held, that the treating was for the purpose of corruptly in- fluencing the voter to vote or refrain from voting at the election. North Ontario Election (Dam.) — Oibbsx. Wheler, 1 H. E. C. 785. A scrutineer for the respondent had some whiskey with him on polling day, and treated the deputy returning officer, poll clerk, and another in the polling station: — Held, not a corrupt practice. lb. See also Sub-head (e) infra. (d) By Other Persons. The giving of free dinners to a number of elec- tors who had come a long distance in severe win- ter weather, in the absence of evidence that it was done for the purpose of influencing the elec- tion either by voting or not voting, or that such electors voted, was not a corrupt act. North Vic- toria Election (2) (Dom. ) — Cameron v. Maclennan, IH. E. 0. 671; 110. L, J. 163. Certain voters met at a tavern on polling day, and one B. said he did not know how to mark his ballot. One of the voters, after shewing B. how to mark his ballot, according to the candi- date he desired to vote for, treated : — Held, that the treating was not a violation of sec. 94 of the Dominion Elections Act, 1874, nor a corrupt practice under sec. 98 of the Act. North Ontario Election (Dom.)—Gibbs v. Wheler, 1 H. E. 0. 785. (e) At Meetings. The respondent who was then representing the county in the Legislature, on two several oc- casions at the close of public meetings of electors called by him to explain his conduct as such member, treated all present to liquor at taverns. He had not at the time made up his mind to he a candidate at the then coming election, but told the electors that ' ' if they gave him their support he would expect it :" — Held, under the circumstances, that such treating was not done with a corrupt intent. Olengarry Election (Ont.) McLennan etal. v. Craig, et al, 1 H. B. 0. 8. Md PARLIAMENTARY ELECTIONS. QuEBre, whether such treating was in any case a corrupt practice, under 32 Vict., c. ?1, s. «1, 0. ; or other than an illegal act which sub- jected the party to a penalty of f 100 under s. ^5— the statute pointedly omitting all piention .•of treating. Tb. Violation of the Ontario Controverted Election Act, 1871, s. 61, (treating at meetings) and s. 66 (giving or selling liquor at taverns on polling •day) are not corrupt practice? within the mean- ing of the Act and of the Election Act of 1868, unless committed in order to influence voters at Tthe election cemplained of. North York Election {OiU.)—Gorham v. BouUbee, 1 H. E. C. 62. The respondent, who was a member of a tem- perance organization, held an election meeting in .^ locality within the electoral division, and about -tin hour after the meeting had dispersed, went to a tavern where he met about 10 or 15 persons in the bar-room, to whom he made the remark, "Boys, will you have something?" Nothing was then taken ; but one E. , a supporter of the respondent, said he would treat, and he did treat -the persons present, and the respondent gave him the money to pay for the treat: — Held, 1. That as the meeting for promoting the elec- tion had dispersed an hour before the respondent went to the tavern, this was not a meeting of ■electors. 2. That the treating not having been ■done with a corrupt intent, was not an offence under 32 Vict., o. 21 s. 61, as amended by 36 Vict, 0. 2, s. 2, nor at common law: Queere, whether the Treating Act, 7 Will. III., c. 4, is in force in this province. Dimdas Election {Ont. ) —Cook V. Broder, 1 H. E. C. 205. One F. , an agent of the respondent, brought a jar of whiskey to a meeting of electors assembled ^or the purpose of promoting the election, and gave driuks from the same to the electors pre- sent, which was held a corrupt practice, and a violation of the Ontario Election Law of 1868, a.3 amended by the Election Act of 1873, so that .the election was avoided thereby. West Welling- ton Election [Ont.) — Moore v. McOowan, 1 H. E. 0. 231. A meeting of the electors was held in a town hall, and 0. (an agent of respondent) and a num- ber of electors went from the meeting to a tavern, where they were treated by C. : — Held, 1. That this was a meeting of electors assembled for the purpose of promoting the election : and, 2. That -the treating by 0. was a corrupt practice, and a breach of the 32 Vict. c. 21 s. 61, as amended by 36 Vict. , c. 2, s. 2. Ei'it Peterborough Election iOnt.)~-Stratton v. O'Sidlivan, 1 H. E. C. 2.15. After a meeting of electors in a town hall, some friends of the respondent remained together •cousalting about the election, and afterwards went to a tavern, where some of them boarded, and had an oyster supper : — Held, that the evi- "denoe was not sufficient to sustain the charge that this was entertainment furnished to a meet- ing of electors under 32 Vict. c. 21, ». 61, 0., as amended by 36 Vict. c. 2. s. 2. North Victoria Election {Ont)--McRae v. SmUh, 1 H. E. 0. 252. Refreshments provided at a meeting of elec- "tors, all of one political party, or at a meeting of 41 committee to aid in returning a candidate, by -and at the expense of one or more of their num- ber, unless in some extreme case cannot be 550 deemed a breach of the provisions of the statute against treating. Halton Election [Ont. )~Buss ell v. Barber, 1 H. E. C. 283. A meeting of the electors was held at a tavern, at which both candidates were present. A dis- pute arose, and the meeting broke up and the parties left the room as a disorderly crowd, and began pulling off their coats and talked of fight- ing. A treat was proposed to quiet the people, and one F. (held by Wilson, J., to be an agent of the respondent), treated, and the crowd quieted do w^n and dwindled away: — Held (per Wilson, J.), that the treating, under the circum- stances, was not furnishing drink to a meeting of electors assembled for the purpose of promot- ing the election. On appeal the Court, without expressing any opinion as to the treating, held, on the evidence, that P. was not an agent of the respondent at the time of the alleged treating. North Ontario Election {Ont.) — McGaskUl v. Pax- ton, 1 H. E. 0. 304. One W., a member of a political association, treated the members of the association present at a meeting in a tavern : — Held, that the mem- bers so present were electors assembled to pro- mote the election of the respondent within s. 61 of the Election Law of 1883, and that such treat- ing was a corrupb practice by W. North Orei/ Election [Ont.) — Boardinan v. Scott, 1 H. E. C. .362 ; 11 C. L. J. 242. After the nomination of candidates on the nomination day, and on another occasion, after a "meeting assembled for the purpose of pro- moting the election," and after the business for which the electors had assembled was over, the electors left the building in which the meeting was held and dispersed to various taverns, at which their vehicles had been put up, and then before leaving for home treated each other ; ami at one of the taverns the respondent himself par- took of a treat: — Held, 1. Not furnishing drink or other entertainment to meetings of electors within sec. 61 of the Ontario Election Law of 1868. 2. That the meeting of electors for the nomination of candidates, is a " meeting as- sembled for the purpose of promoting the elec- tion." North Middlesex Election {Ont.) — Cameron V. McDougaU, 1 H. E. 0. 376; 12 0. L. J. 14. 4. Hiring ponvei/ances. On the admission of the respondent's counsel the election was avoided, on the ground that agents of the respondent had, during the elec- tion, hired and paid for teams to convey voters to the polls. Prince Edward Election {Ont.)— Anderson v. Striker, 1 H. E. C. 45. Held, that the hiring by an agent of the res- pondent of a railway train to convey voters to and from places along the line of railway where they could vote, was a payment of the travelling expenses of voters in going to and from the elec- tion, within the meaning of 32 Vict. o. 21, s. 71, 0. , and was a corrupt practice, and avoided the election. North Simcoe Election {Ont.)—-Sissons V. Ardagh, 1 H. E. C. 50. Cabs and carriages were hired for the use of committee-men and canvassers during the elec- tion and on the day of polling, with instructions to the drivers that they were not to convey vo- ters to and from the poll. One cab was however 551 PARLIAMENTARY ELECTIONS. 552 used for that purpose for the greater part of the day, but without the assent of the agent of the respondent, who had charge of the cab : — Held, that as the evidence did not shew that the cabs and carriages were colourably hired for the pur- pose of bribery or conveying voters to the poll, or that the one cab was so used with the assent of the agent of respondent, the hiring was not an illegal act within 32 Vict. c. 21, s. 71, 0. West 'I'ormito Election (Ont.) — Armstrony v. Crooks, 1 H. E. C. 97. On polling day, one W. asked two voters to go with him and vote for the respondent, and he would bring them back, and they could feed their horses and have dinner. W. sent one of his horses on some of his own business, and hired from one of his voters a horse, for which W. paid him fifty cents, and then drove with the two voters to the poll : — Held, not a hiring of a horse etc., to carry voters to the poll within 32 Vict. 0. 21, s. 71, nor a furnishing of entertain- ment to induce voters to vote for the respondent, -within s. 61 of the Ontario Election Law of 1868. JSforth Victoria Election (Ont. ) — McEae v. Smith, 1 H. E. C. 252. The evidence shewed thatM.'s team was hired some days before the opening of the poll by C. , an agent of the respondent, for the purpose of bring- ing two voters to the polls. M. went for the voters, returned the day previous to the polling day without the voters, and was paid fifteen dol- lars : — Held, that the term ' ' six preceding sec- tions" in see. 98 of "The Dominion Elections Act, 1874," means the six sections immediately preceding the 98th, and therefore the hiring of a team to convey voters to the polls, prohibited hy sec. 96 (1) was a corrupt practice within the meaning of sec. 98, (2) Hemy, J., dissenting. Selkirk Election (Dom.) — Yoiwg et al. v. Smith, 4S. C. B. 494. The court declined, in the present state of the ■ law, to exclude inquiiy as to the payment of travelling expenses of persons going to and re- turning from the poll, inasmuch as such payment might amount to bribery. North Victoria Elec- tion (Dow,.)— Cameron v. Maclennan, 1 H. E. C. 584 ; 10 C. L. J. 217. Where the amounts paid for hiring teams were fair and reasonable, such hiring was not bribery under the Dominion Controverted Elec- tions Act, 1873. Where a canvasser for the respondent received money for hiring teams, and hired from those indebted to him, and agreed with them to give them credit for the respective amounts to be paid for the teams, such an ar- rangement was not evidence of corrupt practices. North Victoria Election (Dom. ) — Cameron v. Maclennan, 1 H. E. C. 612. Money given to a person to hire a team and to go round canvassing, held, on the evidence, not bribery. lb. OneL., a voter, hired a horse and cutter on the day of the election, and with M., a scrutineer for the respondent, drove to the poll and voted. The day after the poUing L. and M. returned to their homes, and on the way M. gave L. |4 to pay for the horse and cutter : — Held, 1. That the payment of $4 having been made after the election, and not having been made corruptly to influence the voter to vote for the respondent, was not a corrupt practice or a wilful violatioie of 37 Vict., c. 9, s. 96 D. 2. That M.'s agency was a limited one, and had ceased before the- payment in question. Halton Election (Dom.) — Cross V. McCraney, 1 H. E. C. 736. A room was procured at which private meet- ings were held of the friends of the respondent to promote his election, some of which meetings- he attended. One W. attended these meetings, and was appointed to procure the vote of a cer- tain voter who was absent from the riding. W. hired a vehicle to convey the voter to the poll ; — Held, that W. was an agent of the respondent, and that his hiring such vehicle was a corrupt practice. North Ontario Election (Dom.) — Gihbs- V. Wider, 1 H. E. C, 785. 5. Hiring Sooms. The candidate is not restricted to his purely personal expenses, but may (if there is no intent thereby to influence voters, or to induce others to procure his return) hire rooms for committees, and meetings, ir connection with the election.- EastToronto Election (Ont.) — Sennicky. Cameron, 1 H. E. 0. 70; 8 0. L. J. 113. 6. Paying Canvassers. A candidate may if there is no intent thereby to influence voters or to induce others to procure- his return, employ men to act as canvassers to dis- tribute cards and placards, and to perform simi- lar services in connection with the election.. East Toronto Election (Ont. ) — Sennickv. Cameron, 1 H.E. C. 70; 8 C.L.J. 113. The friends of the candidate formed them- selves into committees, and some of them volun- tarily distributed cards and canvassed different localities, with books containing lists of voters,, noting several particulars as to promises, etc. These canvassers often met in pubhchouses, and while there, according to custom treated those^ whom they found there, and thus spent their money as well as their time. On this being re- presented to those who had charge of the money for election expenses, the latter, in several cases, reimbursed the canvassers : — Held, that these- general payments, if not exceeding what would be paid to a person for working the same time in other employments, would not be such evi- dence of bribery as to set aside an election, lb. The bona fide employment and payment of a voter to canvass voters belonging to a particular religious denomination, or to the same trade or business, or to the same rank in life, or to can- vass voters who only understand the Erench or Celtic languages, is not illegal. The fact that such a voter has skill or knowledge and capacity to canvass would not make his employment ille- gal. West l^oronto Election (Ont.)— Armstrong' V. Crooks, 1 H. E. C. 97. Money was paid by an agent of the respondent^ (17 each) to certain voters for canvassing, they observing that ' ' a little money in election time was allowed for knocking around," which obser- vation the agent considered was ' ' going about to solicit votes." The agent denied it was paid with any corrupt intent, although his evidence was- not satisfactory. The voters swore the money 553 PARLIAMENTAKY ELECTIONS. 55i- -was paid to their -wives, and the agent was not recalled to explain it : — Held, that although such payments might be open to unfavourable inter- pretation, it was not, according to the evidence, inconsistent with being made without any im- proper motive. lb. The respondent and one M. employed one H. , a lawyer and professional public speaker, to ad- •dress meetings in the respondent's interest, and promised to pay H.'s travelling expenses, if it were legal to do so : — Held, (by the Supreme Court) , Taschereau and G wynne, J J. , dissenting, reversing Armour, J. , ) that such a promise was not bribery. North Ontario Eiection (Dom. ) — ■aibbs v. Wkeler, 1 H. E. C. 785 ; 8. O. sub nom. Nm-th Ontario Election, (Dom. ) — Wliekr v. Oibbs, 4 S. C. R. 430. Held, per Armour, J. , that the hiring of ora- tors and canvassers at an election is bribery, lb. Per Foumier, J . , candidates may legally em- ploy and pay for the expenses and services of ■canvassers and speakers, provided the agree- ment be not a colourable one intended to evade the bribery clauses of the act. Per Taschereau and Gwynne, JJ., such a payment would be illegal. lb. 7. Undue Influence. The respondent was charged with intimidating government servants during his speech at the nomination of candidates, by threatening to pro- cure the removal of all government servants who should not vote for him, or who should vote ag linst him. The evidence shewed that, though in the heat of debate, and when irritated by one U., he used strong language, there was no foun- dation for the corrupt charge : and as it should not have been made, the costs in respect of the same were given to the respondent against the petitioner. Welland Election (Ont.) — Buchnerv. Carrie, 1 H. E. 0. 187. A candidate's appeal to his business, or to his • employment of capital in promoting the prosper- ity of a constituency, if honestly made, is not prohibited by law. West Peterborough Election {Ont.)— Scott V. Cox, 1 H. E. 0. 274. Quaere, whether the word "employment" used in the bribery clauses of 32 Vict. c. 21, refers to an indefinite hiring, or would include a mere •casual hiring. lb. One B. claimed the right to vote in respect of his wile's property, and was told by W., an agent of the respondent, that he could not vote unless he could swear the property was his own. The voter's oath was read to him, and the agent re- Jieated his statement, and said he would look after the voter if he took the oath. The voter •appeared to be doubtful of his right to vote, and withdrew : — Held, that the agent was not guilty ■of undue influence. Quaere, whether the act of the agent as above set out was undue influence under 32 Vict., c. 21, s. 72. Halton Election {Ont.)—Bussea v. Barber, 1 H. E. C. 283. One W., a voter, who was in arrears to the ■C!rown for the purchase money of a lot of land, was canvassed by B., an alleged agent of the Tespondent, who told him that the government would look sharply after those in arrears for their land who did not vote for the supporters of the government : — Held, (reversing Wilson, J.), that what occurred was a brutum fulmen, or an ex- pression of opinion upon a subject on which every one was competent to form an opinion. Acts of agency and the decisions bearing thereon discussed. North Ontario Election {Ont.) ~Mc- Oashill V. Paxton, 1 H. E. 0. 304. The respondent stated at a public meeting of the electors with reference to an alleged local grievance, that he understood it to be the con- stitutional practice, here and in England, for the ministry to dispense as far as practicable the patronage of the constituency on the recommen- dation of the person who constested the consti- tuency on the government side ; and that he be- ing a supporter of the government, would have the patronage in respect of appropriations and appointments whether elected or not : — Held, 1. That the respondent by such words did not offer or promise directly or indirectly any place or employment, or promise to procure place or employment, to or for any voter, or any other person in induce such voter |to vote, or refrain from voting. 2. (reversing Wilson, J.) That the respondent was not guilty of undue influence as defined by s. 72 of the Ontario Election L'xw of 1868, nor as recognized by the common law of the Parliament of England. 3. That to sustain such a general charge of undue influence, it would be necessary to prove that the intimidation was so general and extensive in its operations that the freedom of election had ceased in conse- quence. Mushoha Election {Ont.) — Starratt v. Miller, 1 H. E. C. 458 ; 12 C. L. J. 193. Two agents of the respondent gave a voter M. some whiskey on polling day, and took him in a boat to an island, where they stayed for some time. One of the agents then left, and the oth2r sent M. to another part of the island for their coats. During M. 's absence the latter agent left the island with the boat, but M. got back in time to vote, being sent for by the opposite party : — Held, that the two agents were guilty of undue influence. North Ontario Election {Dom.) — Oibbs V. Wlieler, 1 H. E. 0. 785. Where in addition to corrupt acts, bets were made by agents of the respondent and others, with a number of voters who were supporters of N". , the opposing candidate, the effect of the bets being that in order to win the bets, the voters must vote for the respondent : — Held, that these bets were for the purpose of getting votes for the respondent, and were corrupt practices ; and that in connection with the other corrupt acts proved, they affected the result of the election ; and that the election was therefore avoided. Lincoln Election {Ont.) — Pawling v. Rylcert, 1 H. E. 0. 489. Money was given to certain voters to maks bets with others on the result of the election, but as there was no evidence of a previous under- standing as to the votes, such bets were not bribery. South Norfolk Election, {Dom.) — Decow V. Wallace, I H. E. 0. 660. The practice of making bets on an election con- demned as like a device to commit bribery. 76, S55 PAELIAMENTARY ELECTIONS. 55g 9. Fraudulent Device. Shortly before poUiDg day the respondent's agents issued a circular, the substance of which was that they had ascertained upon undoubted authority that W., an independent candidate, despairing of election himself, was procuring his friends to vote for C, the opposition candidate. W. denied the truth of this report : — Held, that this was not a "fraudulent device," within the meaning of 32 Vict., c. 21, h. 72, 0. , to interfere with the free exercise of the franchise of voters, EaM Northumherland Ekcticm {.Oiit.)— Casey v. Ferris, 1 H. E. C. 387 ; 11 G. L. J. 328. 10. Acts of Trifling Ncdure not Affecting result of Election. See West Hastings Electkm (2) (Ont.) — H olden V. Eohertson, 1 H. E. C. 539, p. 541 ; Dvfferin Election (Ont.)—Sleightholm v. Barr, 1 H. E. C. 530, p. 569. 11. Accounts of Expenditure. When all the accounts and records of an elec- tion are intentionally destroyed by the respond- ent's agent, even if the case be stripped of all other circumstances, the strongest conclusion will be drawn against the respondent, and every presumption will be made against the legality of the acts concealed by such conduct. South Orey Election {Ont.)— Hunter v. Lauder, 1 H.E.C. 52; 8 C.L. J. 17. A candidate in good faith intended that his election should be conducted in accordance both with the letter and the spirit of the law ; and he subscribed and paid no money, except for print- ing. Money, however, was given by friends of the candidate to different persons for election purposes, who kept no accounts or vouchers of what they paid :^Held, that bribery would not be inferred as against the candidate, who neither knew nor desired such a state of things, from the omission of these subordinate agents to keep an account of their expenditure, especially as the law was new, and contained no provision similar to the Imperial statute, which requires a detailed statement of expenditure to be furnished to the returning officer. But it is always more satis- factory to have the expenditure shewn by proper vouchers ; and if money is paid to voters for dis- tributing cards, or for teams, or for refreshments, these will be open to attack, and judges will be less inclined, as the law becomes known, to take a favourable view of conduct that may bear two constructions, one favourable to the candidate and the other unfavourable. East Toronto Elec- tion (Ont.) — Rennick v. Cameron, 1 H.E.C. 70; 8 C. L. J. 113. The Act 36 Vict., c. 2, ss. 7-12, O., requires'all election expenses of candidates shall be paid through an election agent; and the Act 38 Vict., c. 3, s. 6, requires the member-elect to swear that he had not paid and will not pay election expenses except through an agent, and that he " has not been guilty of any other corrupt prac- tice in respect of the said election." Certain payments were made by the respondent person- ally, and not through an election agent : — Held, that such payments were not corrupt practices : —Held, that the words ' 'other corrupt practices" in the member's oath meant "any conupt prac- tice." West Hastings Election (Ont.) — Wesley y. Wills, 1 H. E. C. 211. Per Taschereau, J. — That the personal ex- penses of the candidate should be included in the^ statement of election expenses required to be= furnished to the returning oflScer under 37 Vict, c. 9, s. 123. Larue v. Deslauriers, 5 S.C.E. 91.. 12. Other Corrupt Practices. One T. , who was on the roll as an elector, and had sold his property in June, 1874, before th& final revision of the Assessment EoU by the county judge, was, with the knowledge of the- respondent— who was aware a doubt existed as- to T.'s right to vote— given an appointment to act as scrutineer at a distant polling place, and also a certificate from the returning officer under 38 Vict. c. 3, a. 28, O., to enable T. to vote at the place where he was to act as such scrutineer, at which place T. voted without taking the voter's, oaths and returned without entering upon the- duties of scrutineer. On a question of law re- served on the above facts for the Court of Ap- peal : — Held, that the act complained of was not a corrupt practice under the statute ; but under- the circumstances, the court gave the respond- ent no costs in appeal. West Peterborough Elec- tion (Ont.)— Scott V. Cox, 1 H. E. C. 274. Meetings for promoting the respondent's elec- tion were held at public houses with the object of inducing the owners to support the respond- ent at the election, and because the weather was- cold and meetings could not be. held m the open, air. No evidence was given by the petitioner that equally convenient places, and such as wer& more proper to be used for that purpose could, be obtained : — Held, that as' the respondent and his friends had a legitimate motive for holding their meetings at such houses, although their other motives might not be legitimate, no cor- rupt act had been committed. Kingston Elec- tion (Dom.) — Stewart v. Macdonald, 1 H. E. C. 625 : 11 C. L. J. 19. VI. Open Taverns and Treating on Election Day. The distribution of spirituous liquors on the- polling day, with the object of promoting the election of a candidate, will make his election, void. South Grey Election (Ont.) — Hunter v., Lauder, 1 H. E. C. 52 ; 8 C. L. J. 17. Held, that the violation of sec. 66 of 32 Vict., c. 21 (giving or seUing liquor at taverns on pol- ling day), is not a corrupt practice within the meaning of the Ontario Controverted Election* Act, 1871, or the Election Act of 1868, unleBS- committed in order to influence voters at the elec- tion complained of. North York Election (Ont.Y —Oorham v. BouUbee, 1 H. E. C. 62. Upon questions reserved by the rota judge under the Ontario Controverted Elections Act- of 1871, it appeared that H. and B. voted for respondent. H. kept a saloon, which was closed- on the polling day ; but upstairs, in his private- residence, he gave beer and whiskey without charge to several of his friends, among whoitt were friends of both candidates. B., who hadno> 557 PARLIAMENTARY ELECTIONS. 558 license to sell liquor, sold it at a place near one of the polls to aJl persons indifferently. This vas not done by H. or B. in the interest of either candidate, or to influence the election, B. acting simply for the purpose of gain ; and the candidate did not know of or sanction their proceedings : — Held (thongh with some doubt as to B.), that neither H. nor B. had committed any corrupt practice within 34 Vict. c. 3, s. 47 and therefore had not forfeited their votes ; for they had not been guilty of bribery or undue influence, and their acts, if illegal and prohibited, were not done "in reference to " the election, which, un- der 34 Vict. c. 3, s. 47, is requisite in order to avoid a vote. Brockmlle Sileciion {Ont. ) — Flint v. Fitzsimmons. 1 H. E. C. 139 ; 32 Q. B. 132. The words "illegal and prohibited acts in reference to elections, " used in 34 Vict. c. 3, K 3, mean such acts done in connection with, or to affect, or in reference to elections, not all acts which are illegal and prohibited under the election law. lb. Section 66, of 32 Vict. c. 21 (Ontario Election Law of 1868), provides that "no spirituous or fermented liquors or drinks shall be sold or given to any person" during the day appointed for polling in the wards or municipalities in which the polls are held ; and by 36 Vict. c. 2, o. 1, ' ' corrupt practice " means "any violation of s. 66 of the Election Law of 1868 during the hours appointed for polling ; " and by s. 3 of the latter Act any corrupt practice ' ' committed by any candidate at an election, or by his agent, wheth- er with or without the actual knowledge or con- sent of such candidate," avoids the election. On the day of the election in question, and dur- ing the hours appointed for polling, one M., an agent of the respondent for the purposes of the election, was ofiered by a person unknown to him spirituous liquor (whiskey) in a bottle, which such agent, after remonstrating with such per- son, accepted and drank at the polling place where such agent then was. The unknown per- son also gave spirituous liquor from the same bottle to other persons then present : — Held, that as the legislature had, by the provisions as to the selling or giving of liquor during the hours of polling, provided for the punishment of one particular class, which was defined to be the sel- ler or giver, it did not intend to include the other class, the purchaser or receiver, to which BO reference was made, except inferentiaUy , and that therefore such agent, as the receiver of spirit- uous liquor during such polling hours, was not guilty of a corrupt practice. Went Toronto Ekc- (imi (2) {Ont.)—Adamiscm v. Bell, 1 H. E. C. 179. One F., a tavern-keeper, was given |5 by the iespondent,and requested to appoint a scrutineer to act for the respondent at the poll on polling day. F. kept his tavern open on polling day, and various persons treated there during polling hours. Counsel for the respondent, after the evidence of the above facts had been given, ad- mitted that F. was an agent of the respondent, and that his acts were sufficient to avoid the election : — Held, that although the court did not adjudicate that the respondent, by giving the $5 and requesting F. .to appoint a scrutineer, had constituted him an agent for all purposes, it was the practice of the court to take the admis- sion of counsel in place of proof of agency, and therefore the admission of counsel as to F.'s agency was sufficient. Held further, that P., as such agent, had been guilty of a corrupt practice in keeping his tavern open on polling; day, and that such corrupt practice avoided the election. Rusnell Election (Ont.) — Ogilvie et al v. Baker, 1 H. E. C. 199. Where a member of the respondent's commit- tee, on the day of election, invited some of his friends to his house, which was opposite the polling booth, and gave them beer, &c., during or soon after polling hours : — Held not a con- travention of 32 Vict. c. 21, s. 66, 0. London Election {Ont.) — Jarman v. Meredith, 1 H. E.G. 214. One B. was a member of the committee at W. for the respondent's election, canvassed for him, and met him at the committee-rooms once or twice. B. was also appointed in writing by the respondent to act as scrutineer for him on the polling day, and during polling hours gave whis- key to the deputy returning officer in the polling booth : — Held, per Wilson, J. , that B. , while act- ing as such scrutineer, was not acting in his for- mer capacity as committee-man or agent of the re- spondent, and that his appointment as scrutineer didnot empower him to do an act of treating so as to make the respondent answerable for it. South Ontario Election (Ont.) — Farewell v. Brown, 1 H. E. C. 420; S. C. sub nom. Farewell v. Brown, 12 C. L. J. 216. One C. , a member of respondent's committee at W., partook of whiskey in the kitchen of a tavern at W. during polling hours, and also, when bringing a voter from the town of 0. to the town of W. within the same electoral division) to vote at W. , treated himself and the voter in 0. : — Held, Draper, C. J. A., dissentiente) that C. was not guilty of corrupt practices within sec. 66 of the Ontario Election Law of 1868. lb. The respondent, on polling day and during polling hours, went to a tavern at W., and par- took therein of spirituous or fermented liquor, for which he did not then pay : — Held, per Wil- son, J., that he did not "sell or give" spirituous liquors within the meaning of s. 66 of the Ontario Election Law of 1868. lb. On the day of the election, and during the hours of polling, one W., an agent of the respond- ent, was offered a treat in a tavern within one of the polling divisions, of which such agent and others then partook : — Held, that giving a treat in a tavern during polling hours was a corrupt practice, and being an act participated in by an agent of the respondent, the election was avoided. South Essex Election (Ont.) — McOee v. Wigle, 1 H. E. C. 235; 11 C. L. J. 247. The respondent, during polling hours on the polling day, met one P., a supporter of the op- posing candidate, and told him he would like a drink ; and both of them, not thinking it ille- gal, went to a tavern, and the bar being closed, P. treated the respondent in the hall of the tavern :— Held, by the Court of Appeal (revers- ing Gwynne, J., 1 H. E. C. 343 ; 11 0. L. J. 196, 296,) that the receiving of a treat by the respondent during the hours of polling, was a corrupt practice and avoided the election. Semble, per Gwynne, J., that as to the seller or giver of the treat, the only person liable to 659 PARLIAMENTARY ELECTIONS. 560 the penalty of $100 would be the tavern-keeper, as the statute does not authorize two penaties for the same act. North Grey Election (Out.)— Boardman v. Scott, 1 H. E. C. 362; 11 C. L. J. 242. On the polling day, and during the hours of polling, the respondent drove up to a tavern at 0. , where he met one S., a member of his com- mittee, and addressing him or the assembled people, said, ' ' Boys, this is the iirst time I came to C. when I dare not treat, and some one will have to treat me." S. replied that he would treat, and, with the respondent and a num- ber of persons variously estimated at from 30 or 50 went into the tavern, where S. treated some of the people, and the respondent drank with the rest : — Held, that going into the tavern for the purposes of the treat, when the law di- rected that such tavern should be kept closed, and joining in and accepting such treat, was a literal as well as a substantial violation of the law, and a corrupt practice : that the concur- rence of the respondent in the commission of such corrupt practice made him liable to the dis- quahfioation imposed by the statute for "a cor- rupt practice committed with the actual know- ledge and consent of a candidate. " North Went- worth Mection (Ont.) — Christie v. Stock, 1 H. E. C. 343; 11 C. L.J. 196,296. One M., an agent of the respondent, treated at a tavern duriug polling hours on polling day. The evidence was, that decanters were put down, and people helped themselves, but there was no evidence that spirituous liquors were used. The evidence was objected to at the time, at the charge was not mentioned in the particulars, butadmitted subject to the objection: — Held, 1. That the nature of the treat in the bar-room of a country tavern raised the pre- sumption that the treat was of spirituous liquors, and was a corrupt practice, which avoided the election. 2. That had an application been made in regular form to add a particular embracing the charge, it would have been granted. North Vii'toria Election (Ont.) — McRm v. Smith, 1 H. E. 0. 252. One L., an alleged agent of the respondent, went into the tavern of one D. during polling hours on polling day, and purchased spirituous liquor, with which he treated himself and several persons there present : — Held, per Gwynne, .J., that the penalties provided by s. 66 of the Ontario Election Law of 1868 apply only to the tavern- keepers, who as such is able to control what is done on his own premises in violation of the act, and that the treating by L. was not a corrupt practice. Per Draper, C. J. A., (1) That sec- tion 66 must be construed distributively. (2) That under the first part of the section the tavern-keeper is the only person who can incur the .penalty, for not keeping his tavern closed during the prescribed time. (3) That under the second part of the section the persons who incur the penalty are (1) the tavern-keeper who sells liquor in violation of the statute, and (2) the purchaser who gives the liquor purchased by him to persons in the tavern. Lincoln Election (Ont.)~Ry'ke.rt Y. Neelon, 1 H. E. 0. 391: 12 0. L. J. 161. The decision of Gwynne, J., in the Lincoln case, 1 H. B. C. 391 : 12 C. L. J. 161, that tav- ernkeepers alone are liable for the violation of 32 Vict. 0. 21, 8. 66, 0., as amended by 36 Vict, c. 2, s. 1, not approved of. North Wtnlworth Election {Ont.)— Christie v. Stock, IH. E.G. 343; 11 C. L. J. 196, 296. Held, by the Court of Appeal (Draper, 0. J.A., dissenting), that s. 66 of the Ontario Election Law of 1868, 32 Vict. c. 21. as amended by 36 Vict. c. 2, applies only to shop, hotel and tavern keepers, who alone are liable to the penalties for keeping open the tavern, etc. , and for selling or giving spirituous liquors during the prohibited hoMra., South Ontario Election [Ont.) — Farewell v. Brown,, 1 H. E. 0. 420 ; 8ub nam. Farewell v. Brown, 12 0. L. J. 216. Held, by the Court of Appeal, reversing Wil- son, J., that the prohibition in such section (66) as to opening taverns and giving or selling liquor ' ' in the municipalities in which the polls are held," applies to all the municipalites within the constituency, irrespective of the place where the vote is given, or to be given. lb. By 39 Vict. c. 10, s. 3,0., which is substi- tuted for sec. 65 of the election law of 1863, tavern-keepers or persons acting in that capa- city for the time, who sell or give liquor at taverns on polling day and within the hours of polling, are guilty of corrupt practices ; but par- sous who treat or are treated at such taverns are not affected by the statute. — Ford's vote. Lin- coln Election, (2) [Ont.) — Pawling v. Rylcert, 1 H. E. C. 500. One B. was appointed, in writing, by the re- spondent to act as his agent for polling day. During the day he went to a tavern and asked for and was given a glass of beer : — Held, that B treated himself, and neither g i ve nor sold, and was not therefore guilty of a corrupt practice. East Peterborough Election (Ont.) — Strdtton v. O'SuUivan, I H. E. C. 245. The majority of the respondent was 337 ; but it appeared in evidence that two agents of the respondent had bribed between 40 and 50 voters : that in close proximity to the polls spirituous liquor was sold and given at two taverns during polling hours, and that one of such agents took part in furnishing such liquor ; and that such agent had previous to the election furnished drink or other entertainment to a meeting of electors held for the purpose of promoting the election : — Held, that the result of the election had been affected thereby, and that the election was void. West Hastings Election (2) (Ont.) — HoWen v. Robertson, 1 H. E. C. 539. See Welland Election (2) (Ont.) — Bachner v. Carrie, 1 H. E. C. 187, p. 535 ; North Ontario Election (Dom.)—Gibbs v. Wheler, 1 H. E. 0. 785, p. 548. VII. Disqualification by Reason oi' OoRRnpi Practices. 1. Of Candidates. Before an election judge finds a respondent or other person guilty of a corrupt practice involv- ing a personal disability he ought to be free from reasonable doubt. Centre Wellington Election (Dom.)— Ironside V. Orton, 1 H.E.C. 579. 531 PARLIAMENTARY ELECTIONS. 562 It u a ganeral rale th it no miui can be treated a,3 a crimiual, or mulct in penal actions for ■offences which he did not connive at ; and it is :settled law that enactments ar^e not to be given a penal effect beyond the necessary import of the terms used. But the election laws are not to be .so limitedly construed by an election judge ; and for civil purposes they are more comprehensive, and reach a candidate whose agents bribe in his behalf, with or without his authority. Where the disqualification of a candidate is sought they jire to be construed as any other penal statutes, and the candidate must be proved guilty by the .s ime kind of evidence as applies to penal proceed- iugs. Kingston Election {Dom. ) — Stewart v. Mac- .donald, 1 H. E. C. 625; 11 0. L. J. 19. The respondent entrusted about $700 to an ii^ent for election purposes without having super- lised the expenditure : — Held, that this did not mike him personally a party within 24 Vict. u. -3, s. 46, to every illegal application of the money by the agent, or by those who received money from him. But if a very excessive sum had been so entrusted to the agent, the presumption of a, -corrupt purpose might have been reasonable. .South Grey Election [Ont.) — dunter v. Lauder, 1 H. E. C. 52 ; 8 0. L. J. 17. Before subjecting a candidate to the penalty of disqualification, the judge should feel well ^isured, beyond all possibility of mistake, that the offence charged is established. If there is an honest conflict of testimony as to the offence •charged, or if acts or language are reasonably susceptible of two interpretations, one innocent -and the other culpable, the judge is to take care not to adopt the culpable interpretation unless, •after the most careful consideration, he is con- vinced that in view of all the circumstances it is the only one which the evidence warrants his adopting as the true one. Wetland Election (2) (Ont.)^Buchner V. Carrie, 1 H. E. 0. 187. Per Burton and Patterson, JJ.A. — The 2nd .^ub-sec. of s. 3 of 36 Vict., e. 2, applies equally to the elected and defeated candidates at an elec- tion ; and, if found assenting parties to any ^practice declared by the statute to be corrupt, •eich of them is liable to the disqualifications mentioned in the statute. North Wentworth Election [Ont.)— Christie v. Stock, 1 H. E. C. 343; 11 C. L. J. 198, 296. The respondent, during polling hours on the polling day, met one P. , a supporter of the op- posmg candidate, and told him he would like a ■drink ; and both of them, not thinking it illegal, went to a tavern, and the bar being closed P. t;reated the respondent in the hall of the tavern : — Held by the Court of Appeal (reversing •Owynne, J.), that the receiving of a treat by the respondent during the hours of polling, was a •corrupt practice and avoided the election. North Grey Election {Ont.) — Boardmany. Scott, 1 H.E. ■C. 362; IIO.L. J. 242. At a late hour on the' day preceding the elec- tion some agents of the respondent determined to resort to bribery, and they carried out such •determination at an early hour on the morning ■of the poUing day. There was no evidence of "the respondent's knowledge of, or consent to, this ■act of his agents :-r-Held, (reversing Gwynne, ■J.), that the shortness of the interval between ihe resolve and the execution of the bribery, 36 which was carried out at a place several miles awiiy from where the respondent lived, rendered improbable the fact of the respondent's actuil knowledge of such bribery. Liw.oln EL'c.tlin {Ont.)—R,/kert v. Neelon, 1 H. E. 0. 391 ; 12 0. L. J. 161. The evidence shewed that extensive bribary was practised by the agents of the respondent and by a large number of parsons in his interest, but no acts of personal bribery were proved against him, and he denied all knowledge of such acts. It was in evidence that he had warned his friends, during the canvass, not to spend money illegally. The judge (dubitaute) held that na corrupt practice had been committed with the respondent's knowledge or consent, and avoided the election for corrupt practices by the respon- dent's agents. On appeal to the Court of Com- mon Pleas, it was : — Held, 1. That the circum- stantial evidence in this case was suiHcient to shew that corrupt practices had been committed by the respondent's agents with his knowledge and consent. 2. That wilful intentional ignor- ance is the same as actual knowledge. 3. That the assent of a candidate to the corrupt acts of his agents may be assumed from his non-inter- ference or non-objection when he has the oppor- tunity. And such candidate's knowledge of and assent to the corrupt acts of his agents, may be established without connecting him with any par- ticular act of bribery. London Election [Dain.)^ Pritchard v. Walker, I H. E. C. 560 ; 24 O.P. 434. See North Wentworth Election (Out. ) — Christie V. Stock, 1 H. E. C. 345, p. 559 ; Centre Welling- ton Election (Dom.) — Ironside v. Orton, I H.E.O. 579, p. 545. [See also 47 Vict. c. 4, Out.] [2. Of Other Persons. Quaere, whether the judge presiding at the trial should not direct notice to be given to the parties who, from the evidence, were apparently fuilty of corrupt practices, so that he might ecide upon their liability to disqualification, and report them under the statute. Preicott Election {Ont.) — McKenzie v. Hamilton, \ H. E. C. I. The election having been declared void on ac- count of the corrupt practices of an agent of the respondent, the judges acting as a court for the trial of illegal acts committed at the election, after notice to such agent, granted an order for the punishment of such agent by fine and dis- qualification. Stormont Election {Ont.) — Empey etal.v. Kerr, IK. E. 0.537. See also North Simcoe Election {Dom.) — Ed- wards V. Oook,l H.E.O. 617, p. 564. VIII. Trial or Controverted Elections. 1. Court for Trial. The Court of Queen's Bench is an existing court for the presentation and trial of Dominion' controverted election cases, notwithstanding the O. J. Act, 1881. The petition in this case was intituled, "In the Queen's Bench, High Court of Justice, Queen's Bench Division," and was delivered, without any special instructions to 563 PARLIAMENTARY ELECTIONS. 564- him, to an oflSeer of, and in the office of the Queen's Bench Division, with whom and in -aribich the business of the court of Queen's Bench had formerly been transacted, and the officer entered it in the procedure book of the Queen's Bench Division : — Held, that the words " High Court of Justice, Queen's Bench Division, " added in intituling the petition might be rejected as surplusage, and that the petition had been pro- perly presented in the Queen's Bench : — Held, also, that the act of the officer in entering it in a wrong book should not prejudicially affect the petition. In re Sussell Election (JJom. ) — Hender- son y. Diclcenson, 1 0. R., Q. B. D. 439. A petition against the return of a membei; for the House of Commons, was filed in the High Court of Justice, Common Pleas Division, con- stituted by the 0. J. Act ; and the required security was furnished by the deposit thereof heing made in a bank under a direction obtained tiierefor from the accountant of the said High Court, appointed under the said Act : — Held, by Cameron, J., that the Common Pleas Division of the said High Court was not one and the same court as the Court of CommonPleas as constitu- ted prior to the passing of the Judicature Act ; ihat the said Court of Common Pleas still existed, and was capable of receiving and trying the said petitions, and therefore, the said Common Pleas Division had no jurisdiction to entertain the same : — Held, also, that the question was pro- perly raised by way of preliminary objection, as was also the question as to the security furnish- ed : — Held also, that the onus of proving the preliminary objections rested on the respondent, who raised them. The question as to jurisdic- tion being important, and open to reasonable tloubt, no costs were allowed. Be North York Election {Dom. ) — Paterson v. Muloch, 32 C. P. 458. Overruled by the Supreme Court, 8 S.C.E. 126. Held, following the last case, that the High Court of Justice has no jurisdiction in Dominion controverted election cases. Jn re West Hwon Election (Dim.) — Mitchell v. Cameron, 1 0. E., Q. B. D. 433. Eeversed by Supreme Court, 8 S. C- E. 126. See Be Niagara Election (Dom.)^Phtmh v. ■Hvghes, 29 C. P. 261 ; Sovih Ontario Election {Dcm.)—JHcKayv. Glen ; Be West Bastings Elec- tion {Ont.) — Wallbridge v. Bcun, lb. 270; Mont- inorti^cy Eleciicn (Dcm.) — Valin v. Langlois, 3 S. C. E. 1. 2. Petition. (a) Petitioners. The respondent attacked the qualification of «ne of the petitioners on the grounds that he was an alien, and that he had no property quali- fication, having made an assignmentin insolvency hefore the election. The learned Judge admitted the evidence, but Held, (1) That the evidence as to the petitioner having lived in the United States without shewing that his parents were American citizens, was not sufficient to establish the charge of alienage. (2) That the Ontario JClection Act of 1868, by the term "owner," gives to the husband whose wife has an estate for life or a greater estate, the right to vote in itsject of his wife's property; and that the petitioner having that qualification, and being in. possession of his wife's estate, was entitled t* petition. Prescott Election {Ont.) — McKenzie et al, Y. Hamilton, 1 H. E. C. 1. The respondent, on the opening of the case, charged that the petitioner was a candidate afc the election, and as such candidate was guilty of corrupt practices, and therefore disquahfied to be a petitioner. The chief justice, without deciding whether the respondent had the right to attack the qualification of the petitioner, al- lowed the evidence to be given, but held the: same to be insufficient. Prince Edward Election (Ont.) — Andersons. Striker, 1 H. E. C. 45. A petitioner in an election petition who has- been guilty of corrupt practices at the election complained of, does not thereby lose his status- as a petitioner. Dufferin Election (Ont. ) — Sleight- holm v. Barr, I H. E. C. 529 ; 4 A. R. 420. Except where there are recriminatory charges- against the unsuccessful candidate, or for the; purpose of declaring the petitioner's vote void on a scrutiny, the conduct of a petitioner at an election cannot be inquired into. And in this- case there is no distinction between a candidate- petitioner, and a voter-petitioner, lb. Semble, That if the petitioner in this case was: proved at the trial of the election petition to have been guilty of corrupt practices at the election complained of, the petition could not he- dismissed, lb. An objection to the status of a petitioner cannot be taken by preliminary objection, lb. A candidate may be a petitioner although his- property qualification be defective, if it was not- demanded of him at the time of his election. If he claims the seat, his want of qualification may" be urged against his being seated, but he may- still shew that the respondent was not duly- elected, if he so charge in his petition. North Victoria Election (Dom. ) — Cameron v. Maclennan, 1 H. E. C. 584 ; 10 C. L. J. 217. A duly qualified voter is not disqualified from being a petitioner on the ground that he has been guilty of bribery, treating or undue influence, during the election. North Simcoe Election(Dom. y Edwards v. Cook, 1 H.E.C. 617; 10 C.L.J. 232. Disqualifications from corrupt practices od the' part of a voter or candidate arise after he has- been found guilty, there is no relation back. lb. A charge that the petition was not signed by petitioner bona fide, but that his name was used mala fide by other persons, is a matter of fact t* be tried, and cannot be raised by preliminary objection. lb. In order to disqualify the petitioner acting as- such, the respondent offered to prove (1) that- the petitioner had been reported by the judge trying a former election petition as guilty - of corrupt practices. (2) that the petitioner had in fact been guilty of corrupt practices at such election ; and (3) that he had been guilty of cor- rupt practices at the election in question : — Held, that, such evidence, if offered, would not dis- qualify the petitioner. Cornwall Election (3)( (Dom.) — Maclennan v. Bergin, 1 H. E. C. 803. 565 PAELIAMENTARY ELECTIONS, 56(? Held, further, that as the petitioner did not claim the seat, evidence could not be gone into for the purpose of personally disqualifying him. lb. See Peel Election (Ont. ) — Hurst v. Ohiaholm, 1 H. E. C. 485, p. 571. (b) Foi-m of. The 6th general rule in election cases does not preclude the statement of evidence in the peti- tion, it renders it unnecessary, and is intended to discourage such pleading. South Oxford Elec- tion (Ont.)— Hopkins v. Oliver, 1 H. E. C. 238 ; lie. L. J. 161. An election petition need not shew the time at which the return of the respondent was published in the Gazette. In re Bussell Ekction [Dom.) — Hendersmi v. Dickenson, 1 O. R. , Q. B. D. 439. (c) Amendment of The judge trying an election petition has power to amend the petition by allowing the insertion of any objection to the voters' list used at the election. Monck Election (Ont.) — Golliar tt aX. V. McCaUum, 1 H. E. C. 154. On a preliminary objection to a petition claim- ing the seat on a scrutiny, the court declined to strike ont a clause in the petition which claimed that the votes of persons guilty of bribery, treat- ing and undue influence, should be struck off the poU. The giver of a bribe, as well as the re- ceiver, may be indicted for bribery. North Vic- toria Election (Dom. ) — Cameron v. Maclennan, 1 H. E. 0. 584 ; 10 0. L. J. 217. The petition, besides charging the respondent with various corrupt acts, charged one of his agents with similar acts, and claimed that the agent was subject to the same disqualifications and penalties as a candidate. The prayer of the petition asked that this agent might be made a party to the petition, and that he might be sub- jected to such disqualifications and penalties : — Held, (1) That there is no authority in the Elec- tion Acts or elsewhere, for making an agent of a candidate a respondent in a petition on a charge of personal misconduct on his part. (2) There is no authority given to the election court or the judge on the rota to subject a person "other than a candidate," to such disqualifications. 8(mth Oxford Election (Ont.)— Hopkins v. Oliver, 1 H. E. C. 238 ; 11 C. L. J. 161. See In re Prescott Election (Dom.)— 9 P. R. 481, p. 567. 3. Particulars. (a) Oenerally. When the petition claimed the seat for the unsuccessful candidate on the grounds that (1) illegal votes and (2) improperly marked ballots were received in favour of the successful candi- date ; that (3) good votes and (4) properly mark- ed ballots for the unsuccessful candidate were improperly refused ; and that (5) the successful candidate and his agents were guilty of corrupt practices, and particulars of all such votes and ballots and corrupt practices were asked from the petitioner :— Held, ( 1) As to the illegal votes. that the 7th general rule prescribed the particu- lars of objected votes to be given, and the time- of filing and delivering the same, and a special, order was not therefore necessary. (2) As to the- improperly marked ballots and improperly re- jected ballots, the petitioner not having informa- tion respecting them, could not be ordered tO" deliver particulars of the same. (3) Particulars were ordered of the names, address, abode and addition of persons having good votes, whose votes were improperly rejected at the poUs ; and- partioulars of the corrupt practices charged by the petitioner against the respondent and his- agents. Beal v. Smith, L. R. 4 C. P. 145 (West- minster case), followed. West Elgin Election (Ont.y —Gascaden v. Munroe, 1 H. B. 0. 223 ; 11 C. L. J. 160. Where particulars were delivered after the time limited by the order for particulars, and. not returned, an application made at the trial to- set them aside was refused ; such application should have been made in chambers before the^ trial. North Victoria Election (Ont.) — McRae v. Smith, 1 H. E. 0. 252. Particulars of recriminatory charges delivered after the time limited by the order for such par- ticulars were allc^wed, but the petitioner wa»- allowed to apply for time to answer the charges- therein contained, and was given such costs as.- had been occasioned by the granting of the ap- plication. North Victoria Election (Ont.) — Mc- Rae V. Smith, 1 H. E. C. 252. The petitioner was not allowed to urge before the Court of Appeal a charge of corrupt practices- against the respondent personally, which had. not been specified in the particulars, or adjudi- cated upon at the trial of the petition. South Ontario Election (Ont.) — Farewell Y.\Brown, 1 H. B. 0. 420. The particulars not having been properly pre- pared, the petitioner, while obtaining the costs- of the proceedings, was disallowed the costs of' the particulars. East Northumberland Election- (Dom.)—Oibson v. Biggar, 1 H. E. C. 577. See Smith Wentworih Election (Ont.) — Olmatead-' V. Carpenter, 1 H. E. C. 531, p. 517. (b) Amendment of. Where a question is raised as to the sufficiency of the notice of objection to voters, the judg&- may amend the particulars, giving time to the-- party aflfeoted by the amendment to make inqui- ries. Stormont Election (Ont.) — Bethune v. Col- quhoun, 1 H. E. C. 21 ; 7 C. L. J. 213. At the trial of the petition, an amendment of the particulars as to corrupt practices will b& allowed ; and if the respondent is prejudiced by the surprise, terms may be imposed. Wellan VI. Death of Partner. See Davidson v. Papps, 28 Chy. 91, p. 58. VII. Actions and Pbocbedibgs against.. In a suit by an infant partner against his co- partner praying for dissolution, receiver, refer- ence, &c., after a decree pro confesso, and during the taking of the accounts under an agreement for the continuance of the partnership business. ■S85 PATENT OP INVENTION. S86 for th^t purpose — certiin creditors of the firm . obtained j iidgmeuts and executions at law against the partner of the infant who ,was not informed lof these proceedings until the sheriff had seized, and was about to sell, the whole of the partner- nerahip property : — Held, on motion for injunc- tion, that the proceedings at law were not within the provisions of R. S. 0. c. 123 s. 8, and that the sale should be restrained :, — Held, also, iihat the execution creditors might be made par- ties for that purpose on motion simply. Young v. Hubtr, 29 Chy. 49. Blakeslee, Brown & Co. carried on business in partnership, under the name of Blakeslee & Co. Blakeslee absconded on the 19th September, and the business continued. O. assigned his interest to Brown, and after such assignment, but before it had been made public, the plaintiff served hia writ of summons against the "firm on O. : — Held, : that the service was good. Bank of Hamilton v. Blaktske et al., 9 P. R. 130.— Dalton, Master. On a reference to take an account of partner- ship dealings the report fouad that the plain- "tiff had contributed to the partnership capital $87.39, and the. defendant 1233.89, and that there was due from the defendant to the plaintiff $43.74. The taxing officer taxed the plaintiff's costs under the lower scale, on the ground that the case came within C. S. U. C. o. 15, a. 34, sub-s. 1. On appeal, Cameron, J., reversed the taxing officer's ruling. Blaney v. McOrath, 9 P. B. 417. PARTY WALLS. See BcriLDiNQS. PATENT OF INVENTION. I. COMBIN^ATION AKD NOVELTT, 58S. II. Assignment AND Royalty, 586. III. Infeingement. 1. Action for. (a) Venue, 587. (b) Other Cases, 588. I. Combination and Novelty. In November, 1879, the plaintiff obtained a ipatent for a new and useful improvement in bakers' ovens, which was expressed to be " In ■combination with a bakers' oven, a furnace, 'D,' set within the oven but below the sole, 'A.'" This patent he surrendered, and a new one issu- •ed in August, 1880, on the ground that the first was inoperative by reason of the insufficiency of the description. The new patent was for the unexpired portion of the five years covered by the first patent. The claim of invention, as set forth iu the specification, was : " (1) In a fire-pot ■or furnace placed within a baker's oven below the sole thereof, and provided with a door situa- ted above the grate. (2) In a fire-pot or furnace 5)laced within a baker's oven, provided with a •aooT above the level of the sole of the oven, and ••connected with the said furnace by an inclined guide. (3) In a flue, 'H.' leading fron below the grate, ' B.' to the flue, ' E.' (4) In a Inker's oven provided with a circular tilting grate situa- ted below the sole of the oven, and provided with a door. (5) In a cinder grate, ' P.' placed beneath the fire-grate, ' B.' in combination with a flue, ' H. ' " The plaintiff, in his speeificitions, claimed all these as his inventions ; in- his evi- dence he claimed each of the combinitions to be the subject of the patent : — Held (1), if the plain- tiff was correct in the latter view, that the last four combinations being new, the first pitent could not have been inoperative as to them ; and the second patent in respect of tbesfc mast be construed as an independent one, issuing for the first ti lie on its date, and as all other thxn the first combination had been used for upivirds of a year prior to the patent, he was not entitled to a pitent therefor ; (2) that the 5th oonbin.v tion of previously known articles,' as applied to a baker's oven, which wis productive of results which were new and useful to the trade, was a subject of a patent. Hunter v. Garrich, 28 Chy. 489. Some of the devices were in use before the patent, but numerous witnesses engaged in bak- ing testified that they never knew of the combi- nation before the plaintiff's invention : — Held, that the defence for want of novelty failed, lb. Held, also, that the first combination in the patent of 18S0 was such an amendment as is con- templated by the Act, 35 Vict. c. 26, a. 19. lb. The defendant's oven was completed early in July, 1830, and before the re-issue of ths plain- tiff's pitent ; she had in use the first an 1 fourth combinations, and continued to use them after such re-issue : — ^Held , that there was no 5 any remedy for the intermediate user, as th3 pitent was then inoperative ; but as to any subsequent infringement, the user under a defective patent could not operate as a defence. lb. The plaintiff claimed as his invention, for the purpose of purifying flour during its m vnutac- ture, a bolting cloth or sieve, through which a current of air was forced upwards by mians of an air chamber and a fan, or substitute therefor, and, in order to keep such sieve from becoming clogged, n. brush, or a number of brushes, ar- ranged in such a manner as to traverse the under service. The air chamber and the fan combined with the bolt or sieve were admittedly old : and it appeared that one B. had patented a machine which was in use in the manufacture of semolina, iu which a similar brush arrangement was iu use for the purpose of keeping open the meshes of the sieve when used: — Held (affirming the judg- ment of Spragge, C), that the plaintiff's inven- tion was not patentable. Qusere, as to the effect under 35 Vict. c. 26, a. 28, D. of a decision of the minister of agriculture. Smith, v. Oohlie et al. , 7 A. R. 628. Affirmed iu the Supreme Court. Special leave to appeal to Her Majesty in Coun- cil in this case was refused. See Owens v. Taylor, 29 Chy. 210, p. 587. IL Assignment and Royalty. The mere attaching of the support of the handle of a pump higher or lower in position than, that formerly in use, ia not the aubjeot of a. 58T PAYMENT. 58S patent ; but P. having obtained a patent there- for, which he assigned to the plaintiff, who again assigned, to the defendant subject to certain royalties : — Held, that notwithstanding the in- Talidity of the patent he was entitled to recover the amounts payable to him under the agreement during the currency thereof. Owens v. Taylor, 29 Chy. 210. Where G. granted the exclusive right to manu- facture a certain patented article to W., and covenanted that R., the original patentee of ■whom G. was assignee, would ' ' warrant and de- fend" W. in the possession of the patent right, and that if B., neglected or refused to "protect and defend" W. in his peaceable possession of the said patent right, then the royalty to be paid by W., as the consideration for the said grant, should cease : — Held, G. was liable under this covenant only if E. neglected to defend W. as against all persons having any right to manufac- ture or sell the patented article, not as against ^ere wrong doers : — Semble, if there had been breach of the covenant by G., the defendant would not have been liable to pay the royalty under the above agreement, though he had con- tinued to manufacture the patented article. Green et al. v. Watson, 2 0. E., Chy. 1). 627. Affirmed in appeal. See 20 C. L. J. 285. The plaintiff, the owner of a patent for an im- proved pump which had only about a month to run, but was renewable for two further terms of five years each, sold the same ; together with certain freehold and chattel property, to the de- fendants for 14,500, of which $1,500 was paid down, and a mortgage given on the property for the residue :^Held, (reversing the decree of the court below, Patterson, J. A., dissenting), that under the circumstances appearing herein and in the court below, (26 Chy. 322) all that the pur- chasers could claim was the right under the patent for the remainder of the first term of live years. Per Patterson, J. A. "Under the agree- ment and assignment set out in his judgment, the defendants were entitled to the extension as well as to the current term. Powell v. Peek, 8 A. R. 498. in. Iktkingbmbnt. 1. Action for. (a) Venue. In an action for the infringement of »■ patent, plaintiff laid the venue in Hamilton, while the defendant was a resident of Toronto : — Held, that regarding the language of sec. 24 of the Patent Act 1872, the venue should be laid in the county where the defendant resided ; and an order was made under Rule 254, to change the place of trial to Toronto. Goldsmith v. Walton, 9 P. R. 10.— Osier. Held, that the word " may " in 35 Vict. c. 26, s. 24, D., was obligatory and not merely permis- sive, and that the venue in an action to restrain the infringement of a patent, must be laid at the place of sittings of the court in which the action is brought, nearest to the place of residence or business of the defendant :— Held, also that sec. 24 was not ultra vires of the Dominion parlia- ment. Aitcheson v. Mann, 9 P.R., Q.B.D. 473, (b) Other Cases. An action for the infringement of a patent should not ordinarily be tried by a jury. Ver- milyea v. Guthrie, 9 P. R. 267.— Boyd. In an action to restrain the infringement of a. patent, in which the defence set up that the sup- posed invention had been previously patented in. the United States and England, copies of Am- erican patents material to the defendant's caaci were procured by his solicitors of their own motion for the purposes of the action : — Held,, that such documents were privileged from pro- duction. The Guelph C. Co. v. Whitehead, 9 P.. R. 509.— Dalton, Master. PAWNBROKER. Remarks upon the law relating to pawnbrok- ers. JRegina v. Adams, 8 P. R. 462. — Cameron^ A pawnbroker under C.S.C, c. 61, may legal- ly charge any rate of interest that may be agreed, upon between him and the pledger. lb. PAYMENT. I. To Ceeditobs. 1. Time of Payment, 588. 2. Appropriation of Payments, 688. 3. Sy Cheque, 589. 4. Of Bills or Notes — See Bills or Ex- CHAUGE AND PkoMISSOKT NotES. 5. Of Mortgages — See Moetgagb. 6. To Save the Statute — See Limitation OF Actions and Suits II. Payment of Money into Cotjiit. 1. In Suits, 589. 2. Otlier Cases, 589. 3. On Sale of Land by Order of the Courts — See Sale of Land by Okdek of- THE Court. 111. Payment of Money out of Court. 1. Generally, 589. 2. Paid in as Security for Costs pending Appeal — See Costs. I. To Okbditoes. 1. Time of Payment. 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 ta public observation of a jSourishing condition of his affairs, and it is not necessary to shew that the borrower is in a position to discharge the; debt without inconvenience. He Jtoss, 29 Chy:. 385. ' 2. Appropriation of Payments. See Birkett et al v. McGuire et al, 31 C. P.430r- reversed by 7 A. R. 53. 589 PENAL ACTIONS AND PENALTIES. 50() 3. By Cheque. A cheqne of the plaintiff's when produced at the hearing, had written on it, '-in full of all his (the defendant's) claims for notes or otherwise, " and which words the plaintifif swore were on the cheque when sent to the defendant, which he denied, however. Four crosses were on the face of the cheque, and some initial letters in the margin, and these the plaintiff stated were the initials of the clerk in the bank, whom he had requested to initial the words so introduced : The Court (Spragge, C.,) refused to receive this as evifienee of a receipt in full, in the absence of the bank clerk, who should have been called as a witness. Livingstone v. Wood, 27 Chy. 515. Of Premium on life policy. See Neill v. T7ie UnUm Mutual Life Ins. Co., 7 A. E. 171, p. 378. II. Payment of Money into Court. 1. In Suits. Where there were cross-actions, in one of which a sum had been reported due and a claim of set-off had been disallowed, in a subsequent action brought to recover the sum disallowed, the plaintiff was held entitled to move for judg- ment under Rule 324. But the affidavits filed on the motion being conflicting : — Held, the action must be entered for trial at the sittings for the examination of witnesses, but the amount found due in the first action was ordered to be paid into Court, to abide the result of the second action. Francis v. Francis, 9P. K 209. — Proud- foot. Where the plaintiff in an alimony suit ob- tains a writ of arrest and the defendant gives bail and a breach of the bond is committed, the plaintiff is entitled to have the amount for which the writ was marked, paid into Court, to be ap- plied from time to time in payment of the aHmony and costs. Needham v. Needham, 29 Chy. 117. 2. Other Cases. The Referee in Chambers has no jurisdiction to make an order for payment into Court by an executor or administrator of amounts admitted by him to be in his hands. Re Curry, Wright V. Curry ; Currie v. Currie, 8 P. R. 340. — Holmested, Referee. Interest on money deposited in Court. See Wilkins V. Geddes, 3 S. O. R. 203, p. 386. III. Payment of Money out of Court. 1. Generally. Right to recover back money paid out of court on judge's order pending appeal. See Citizens' Ins. Co. V. Parsons et al., 32 C. P. 492, p. 175. Where money is paid into court under an order giving leave to "apply at Chambers" for its payment the referee has jurisdiction to make the order for payment out. In re Selby, 8 P. R. 342. — Holmested, Referee. Where a party is entitled to an assignment of a bond, and to realize it for his own benefit, %s rights are the same in regard to money deposited ; and where in an alimony suit the statutory bond under a writ of ne exeat has been given, the plaintiff is entitled to have the moneys deposited as collateral security therefor, paid into court, and applied in discharging arrears of alimony. Richardson v. Richardson, 8 P. R. 274. — Proud- foot — Spragge. About $40,000 was paid into court during the progress of the suit. The decree dismissed the bill, and ordered payment of the money in court to defendant. The plaintiff appealed, and paid $490 into court as security for costs. Subse- quently an order was made by the referee stay- ing payment out to the defendant, pending the appeal, upon the plaintift giving additional secu- rity to the amount of $200 for the difference between the legal interest and that allowed by the court ; — Held, on appeal that such order was not ultra vires nor unreasonable. McDonald v. Worthington, 8 P. R. 554. — Ferguson. The plaintiffs having moved for an injunction to restrain the sale of goods under execution, the motion was enlarged and the sale permitted to proceed, the money arising therefrom being di- rected to be paid into court to the credit of the cause, there to abide the further order of the court. The injunction was afterwards refused : — Held, on appeal from the referee, ordering pay- ment out, that the payment out of the fund was discretionary with the court, and that pending the appeal to the Court of Appeal the same should remain in court, but might be paid out on proper security being given. Held, also, no ob- jection that the order refusing the injunction, and the order for payment out had not been entered. King v. Duncan, 9 P. R. 61. — Ferguson. An order was made in this matter by the re- feree in chambers before the passing of the 0. J. Act directing certain ascertained shares then in court to be paid out to certain infants as they respectively came of age : — Held, that the shares might be paid out without any further order, not- withstanding Rule 424, 0. J. Act. Re Cameron, Infants, 9 P. E. 77.— Proudfoot. Where money has been paid into court for a. specific purpose, and that purpose has been answered in favour of the party paying it in it will be paid out to that party. McLaren v. Caldwell, 9 P. R. 118.— Proudfoot. As to jurisdiction of master in Chambers. See Re Devitt, 9 P. R. 110. Payment into bank to credit of wrong cause. See Johnston v. Johnston, 9 P. R. 259, p. 472. PENAL ACTIONS AND PENALTIES. Acainst Magistrates— iSee Justices op the Peace. An order for security for costs cannot be ob- tained in an action for penalties under R. S. 0. c. 50, s. 71, upon the affidavit made by the de- fendant's attorney. That section of the C. L. P. Act requires the afSdavit to be made by the defendant personally. An application made upon the afSdavit of the solicitor of the defen- dants, a corporation, was refused. Martin qui tarn v. The Consolidated Bank, 45 Q. B. 163. 591 PETITION OF RIGHT. 592 Action to recover penalty from a deputy re- turning officer under 37 Viet. c. 9, s. 108. Dom. See Cameron v. Clucas, 9 P. K. 405, p. 527. In penal statutes questions of doubt are to be construed favourably to the accused, and where the court of first instance in a quasi criminal trial has acquitted the resjjondent, the appellate court will not reverse his finding. North Onta- rio Election {Ont.)—McGashill v. Paxton, 1 H. E. 0. 304. PENALTY BY CONTRACT. The defendant, who had trespassed on the plaintiff's land by placing stones and commenc- ing to build a stone fence thereon, entered into an agreement to remove the same before the 15th of December, unless, upon a re-survey, which he had the privilege of having made before the 15th November, it was found that the line run by one S. , a surveyor, was not the correct line, or unless defendant should fail to have such re- survey ; and he agreed " to pay to the plaintiff the sum of $200 as liquidated damages if the said atones and stone fence are not removed, as here- inbefore agreed, at the times mentioned in this agreement " : — Held, affirming the judgment of the County Court, that the sum mentioned was not a penalty, bat liquidated damages for the omission to perform a specific act, viz., the re- moval of the stones and stone fence. Craig v. Dillon, 6 A. R. 116. See The Corporation of the Village of Brushes V. Ronald et al, 4 0. R. 1, p. 487. PERPETUITY. See Will. PETITION. See Municipal Corpobations — Parliamektary Elections — Quibtino Titles. PETITION OF RIGHT. I. In Cases or Contract, 591. II. In Other Cases, 596. III. Pleading, 599. IV. Costs, 600. I. In Oases of Contract. The suppliant engaged by contract under seal, dated 4th December, 1872, with the minister of public works, to construct, finish and complete, for a lump sum of $78,000, a deep sea wharf at Eiohmoud station at Halifax, N. S. , agreeably to the plans in the engineer's office and specifi- cations, and with such directions as should be given by the engineer in charge during the pro- gress of the work. By the 7th clause of the con- tract no extra work could be performed, unless ' ' ordered in writing by the engineer in charge before the execution of the work." By letter, dated 26th August, 1873, the minister of public works authorized the suppliant to make an addi- tion to the wharf by the erection of a superstruc- ture to be used as a coal floor, for the additional sum of $18,400. Further extra work which amounted to |2,781, was performed under another letter from the public works depart- ment. The work was completed and on the final certificate of the government engineer in charge of the works, the sum of $9,681, as the balance due, was paid to the suppliant, who gave the following receipt, dated 30th April, 1875: ' ' Received from the Intercolonial railway, in full, for all amounts against the government for works under contract,, as follows: 'Richmond deep water wharf works for storage of coals, work for bracing wharf, rebuilding two stone cribs, the sum of |9,681.' " The suppliant sued for extra work, which he alleged was not covered by the payment made on the 30th April, 1875, and also for damages caused to him by deficiency in and irregularity of payments. The petition was dismissed with costs ; and a. rule nisi for a new trial was subsequently moved for and dis- charged : — Held, affirming the judgment of the court below, that all the work performed by the suppliant for the government was either contnict work within the plans or specifications, or extra work within the meaning of the 7th clause of the contract, and that he was paid in full the con- tract price, and also the price of all extra work for which he could produce written authority, and that the written authority of the engineer and the estimate of the value of the work were condi- tions precedent to the right of the suppliant to recover payment for any other extra work. (Henry, J., dissenting.) O'Brien v. TheQiieen, 4 S. 0. E. 529. Per Ritchie, C.J., that neither the engineer, nor the clerk of the works nor any subordinate officer in charge of any of the works of the Domi- nion of Canada, have any power or authority, express or implied, under the law to bind the Crown to any contract or expenditure not speci- ally authorized by the express terms of contract duly entered into between the Crown and the contractor according to law, and then only in the specific manner provided for by the express terms of the contract, lb. On the 25th May, 1870, J. and S., contractors' entered into a contract with the Intercolonial Railway Commissioners (authorized by 31 Vict., c. 13) to construct and complete section No. 7 of the said Intercolonial Railway for the Dominion of Canada, for a bulk sum of $557,750. During the progress of the work, changes of various kinds were made. The works were sufficiently completed to admit of rails being laid, and the line opened for traflic on the 11th Nov., 1872. The total amount paid on the 10th Feb., 1873, was $557,750, the amount of the contract. The contractors thereupon presented a claim to the commissioners amounting to $1 16,463.83 forextra work, &c., beyond what was included in their contract. The commissioners, after obtaining a report from the chief engineer, recommended that an additional sum of $31,091.85 (less a sum of $8,300 for timber bridging not executed, and $10,354.24 for under drain taken off contractor's hands) be paid to the contractors upon receiving a full discharge of all claims of every kind or 593 PETITION OF RIGHT. 594 description under the contract. The balance waa tendered to suppliants and refused. The con- tractors thereupon, by petition of right, claimed -$124,663.33, as due from the Crown to them for -extra work done by them outside of and beyond the written contract, alleging that by orders of the chief engineer additional work and alterations were required, but these orders were carried out only on the understanding that such additional work and alterations should be paid for extra ; and alleging, further, that they were put to large expens .• and compelled to do much extra work which they were entitled to be paid for, in ■consequence of misrepresentations in plans and bill of works exhibited at the time of letting. On the profile plan it was stated that the best infor- mation in possession of the chief engineer • res- pecting the probable quantities of the several iinds of work would be found in the schedules accompanying the plan "but contractors must understand that these quantities are not guaran- teed ; " and in the bill of works, which purported to be an abstract of all information in possession -of the commissioners and chief engineer with regard to the quantities, it was stated, " the .quantities herein given as ascertained from the best data obtained are, as far as known, approx- imately accurate, bat at the same time they are not warranted as accurate, and no claim of any kind will be allowed, though they may prove to he inaccurate. " The contract provided inter alia, that it should be distinctly understood, intended and agreed that the said price or consideration of $557,750 should be the price of, and be held to be fall compensation for all the works em- "braced in, or contemplated by the said contract, or which might be required in virtue of any of its provisions, or by law, and that the contrac- tors should not upon any pretext whatever, be -entitled by reason of any change, alteration or addition, made in or to such works, or in the said plana and specifications, or by reason of the •exerciae of any of the powers vested in the Gov- ■ernor-in-council by the said Act, intituled " An Act respecting the conatruotion of the Intercolo- nial Railway," or in the commissioners or engi- neer, by the said contract or by law, to claim or •demand any further or additional aum for extra work, or aa damages or otherwise, the oontrac- 'tors thereby expressly waiving and abandoning aU and any such claim or pretension, to all in- tents and purposes whatsoever, except aa provi- -ded in the fourth section of the said contract, relating to alterations in the grade or line of location , and that the said contract and the said ■jspecifioations should be in all respects subject to the proviaions of the Act first cited in the said -contract, intituled ' ' An Act respecting the con- •straetion of the Intercolonial RiUway," 31 Vict. •0, 13, and alsso, in aa far as they might be appli- •cable, to the proviaiona of " The Railway Act of 1868." The 18th seotion of 31 Vict. c. 13, enacts " that no money shall be paid to any contractor until the chief engineer shall have certified that "the work, for or on account of which the same ■ahall be claimed, has been duly executed, nor until such certificate shall have been approved of by the commissioneri'. No certificate was given by the chief engineer of the execution of the work : — Held, that the contract requiring "that any work done on the road must be certified "to by the chief engineer, until he so certified and such certificate was approved of by the oom- Biissioners, the contractors were not entitled to 38 be paid anything. That if the work in queition waa extra work, the contractors had by the con- trant waived all claim for payment for any aneh work. If such extra work was of ;i character so peculiar and unexpected as to be considered dehors the contract, then there waa no such con- tract with the commissionera aa would give the contraotora any legal claim agaiuat the Grown ; the commissioners alone b^ing able to bind the Crown, and they only as authorized by statute. That there was no guarantee, express or implied, as to the quantities, nor any miarepresentations respecting them. But even if tliere hid been, a petition of right will not lie againat th'3 Crown for tort, or for a claim based on an alleged fraud, imputing to the Crown tha fraudulent miscon- duct of its servants. Jones et al. v. The Queen, 7 S. 0. R. 570. In the contract it was also provided that if the contractors failed to perform the works within the time agreed upon in and by the said contract, to wit, 1st July, 1871, the contraotora should forfeit all money then due and owing to them under the terms of the contract, and also the further sum of $2,000 per week for all the tims daring which said works remained incomplete after the said 1st July, 1871, by way of liquidated danages for such default. The contract was not completed till the end of August, 1872 :— Hel I, that if tbe Grown insisted on requiring a decree for the penalties, time being declared the essence of the coatraot, thedamages attached, and choCrown w.i? entitled to a sum of $2,000 per week from the Ist July, 1871, till the end of August, 1S72, for liquidated damag3S. The Crown subsequently waiving the forfeiture, judgment was rendered in favour of the aupplianta for the aum of $12 433.11, being the amount tendered by the respondent, less the costs of the Crown in the case to be tixed and deducted from the said amount. lb. In January, 1872, the Commissioners of the Intercolonial Railway gave pablio notice that they were prepared to receive tenders for the erection inter alia of cert.ain engine houses ac- cording to plans and specifications deposited at the office of the chief engineer at Ottawa. J. I. tendered for the erection of an engine house at Metapediac, and in October following he wis instructed by the commissionera to proceed in the execution of the work, according to his ac- cepted tender, the price being $21,939. The work was completed and delivered to the Govern- ment in October, 1884. The specifications pro- vided as follows : ' ' The commissioners will provide and lay railway iron, and wdl also provide and fix cast-iron columns, iron girders, and other iron work required for supporting roof." In September, 1873, J. I. was unable to proceed further with the execution of his work, in conse- quence of the neglect of the commissioners to supply the iron girders, &c., until March follow- ing, owing to which delay he sufifered loss and damage. During the execution of the wirk, J. I. was instructed and directed by the commission- ers or their engineers to perform, and did per- form, certain extra works not included in his accepted tender, and not according to the plans, drawings and specifications. By his petition of right, J. I. claimed $3,795.75 damages in conse- quence of the delay on the part of the commis- sioners to provide the oast-iron columns, &e., and $8,505.10 for extra works. The Crown demurred and also traversed the allegation of 595 PETITION OF HIGHT. TsbMl' 596: negligcBce and delay, and admitted extra work to the amount of 15,056.60, and set up the 18th sect, of 31 "Vict. c. 13, which required the certi- ficate of the eiigineer-in-chief as a condition precedent to the payment of any sum of money for work done on the Intercolonial railway. By 37 Vict., u. 15, on the 1st June, 1874, the Inter- colonial rail-nay was declared to be a public work -vested in Her Majesty and under the con- trol and management of the Minister of Public Works, and all the powers ar.d duties of the commissioners were transferred to the Minister of Public Works, and sec. 3 of 31 Vict. c. 13, was repealed, with so much of any other part of the said Act as might be in anyway inconsistent with 37 Vict. c. 15 : — Held, that the tender and its acceptance by the commissioners constituted a valid contract between the Crown and J. I., and that the delay and neglect on the part of the commissioners acting for the Crown to pro- vide and fix the cast-iron columns, &c., which were, by the specifications, to be provided and fixed by them, was a breach of the said contract, and thai the Crown was liable for the damages resulting from such breach. That the extra work claimed for, being for a sum less than $10,- 000, the commissioners had power to order the same ucder the statute 31 Vict. c. 13, s. 16, and J. I, could recover by petition of right, for such part of the extra work claimed as he had been directed to perform. That the 18th sec. of 31 Vict, u. 13, not having been embodied in the agree- ment with J. I. as a condition precedent to the payment of any sum for work executed, the Crown could not now rely on that section of the statute for work done and accepted and received by the Government. That the effect of 37 Vict. c. 15, was to abolish the office of chief engineer of the Intercolonial railway, and for work per- formed and received on or after 1st June, 1874, to dispense with the necessity of obtaining, as a condition precedent to the payment for the same, the certificate of said engineer-in-chief, in accord- ance with sec. 18 of 31 Vict. u. 13. Isbester v. The Queen, 7 S. C. E. 696. By his petition of right, W., a sculptor, alleged that he was employed by the Dominion govern- ment to prepare plans, models, specifications and designs, for the laying out, improvement and establishment of the parliament square, at the city of Ottawa : that he had done so, and super- intended the work and construction of said im- provements for six mouths. , He claimed |50,000 for the value of his work. 31 Vict. t. 12, s. 7, provides that, when executory- contracts are in writing they shall have certain requisites, such as signing, sealing and countersigning to be binding ; and by sec. 15 provides that before any expenditure is incurred there shall have been a previous sanction of parliament, except for such repairs and alterations as the public ser- vice demands ; and by sec. 20, requires that tenders shall be invited for all works, except in cases of pressing emergency, or where from the nature of the work it could be more expeditiously and economically executed by the officers and ser- vants of the department : — Held, 1. that the Crown in the Dominion cannot be held responsi- ble under a petition of right on an executory con- tract entered into by the department of public works for the performance of certain works placed by law under the control of the depart- ment, when the agreement therefor was not made in conformity with the above 7th sec. of 31 Vict. c. 12. 2. That under sec. 15 of said Act, if parliament has not sanctioned the ex- penditure, a petition of right will not lie for work done for and at the request of the depart- ment of public works, unless it be for work done in connection with repairs and alterations which the necessities of the public service demanded. 3. That in this case, if parliament has made appropriations for these works and so sanctioned the expenditure, and if the work done was of the kind that might properly be executed by the- officers and servants of the department under sec. 20 of said Act, then no written contract, would be necessary to bind the department, and. suppliant should recover for work so done. Wocd V. The Qneen, 7 S. C. E. 634. II. In Other Cases. In order to establish a right to damages as. against the Crown for having, as alleged, oh- sti-ucted the flow of water to the mills of the suppliants, it is incumbent on the suppliants to- shew that less than the natural volume of water forming the stream reaches their mill on account of such alleged obstruction : therefore, where it appeared upon the evidence that certain waters alleged to have been penned back by a dam would never have reached the mills of the sup- pliants, and the extreme and unprecedented dry- ness of the season had had an appreciable effect- upon the supply of water : — Held, that the evi- dence did not sustain the petition, which alleged that the suppliants sustained damage by the erection of a dam across the river, above their mill. The Musholca Mill Go. v. The Queen, 28- Chy. 563. The maxim that the Crown can do no wrong, applies to alleged tortious acts of the officers of a public department of Ontario, and a petition of right will not lie for such alleged -wrongful acts under 35 Vict. c. 13, 0., which creates no new right in the subject against the Cro-wn, bu-t- relates rather to procedure only. The redress of a subject suffering damage from such acts, if un- authorized by statute, would be against the sub- ject who committed the wrong, and not against- the Crown. lb. Action against the Crown for counsel fees. — Retainer. See The Qneen v. Doutre, 6 S.O.E. 342,. p. 161. Affirmed by Her Majesty in council. Held that a petition of right does not lie to re- cover compensation from the Crown for damage occasioned by the negligence of its servants to- the property of an individual using a puhho work. The Queen v. Mclfarlane et . 393. Misjoinder of parties is, since the Judicature Act, no longer a ground for demurrer. Yoimg et al. V. Robertson, 2 0. R, Chy. D. 434. In an action to set aside a conveyance of land as a fraudulent preference, the non-averment that the plaintiffs sued on behalf of all other creditors is not ground for demurrer, but a mere informality, to be dealt with under 0. J. Act, Eules 103, 104. In an action by a solicitor to recover the amount of a bill of costs, the fact that he does not, in his statement of claim, al- lege that the bill was delivered a month before action brought, is not now, any more than before the Judicature Act, ground for demurrer, but only for defence. Scane et al. v. Dzidcett et al., 3 0. R, Chy. D. 370. In an action by the Attorney-General, upon the relation of the Bursar of Toronto University, to recover possession of certain lands claimed to be vested in Her Majesty for the benefit of the University, the defendants pleaded that the said lands had been, with the assent of the Univer- sity and bursar, taken possession of by them for the purposes of their railway under their statu- tory powers, and that they had since retained and then were in possession thereof, and they also pleaded the statute of limitations : — Held, on demurrer, that it was not necessary to set out specifically the statutes aUuded to, in th« various proceedings connected with the expropriation of 39 the land, and the defence was not objectionable, Tipon demurrer, on the ground of want of cer- tainty, by reason of its merely general allegation of compliance with the statutory reciuirements : — Held, also, that the mere allegation that the defendants were in possession afforded a good de- fence in lair in such an action, and put the plain- tiff to the proof of his cause of action, under Eule 144. Aitomey-Qeneral v. The Midland R. W. Co., 3 0. R., Chy. D. 511. In the case of a partial demurrer to a pleading under Eule 189, if any one or more paragraphs be demurred to, the court vrill look at any other paragraph or paragraphs bearicg on the same matter of defence, and if the whole taken to- gether disclose a sufficient defence, the demurrer must be overruled. When a pleadiog s ambi- guous or uncertain, the proper remedy is to apply in Chambers to strike out or amend the defective matter, and a demurrer on that ground will not lie. lb Held, in this case, that the demurrer being partly successful, and partly unsuccessful, neither party should get costs. lb. When upon the argument of an appeal, the respondent omitted to point out in what respect the replications of the plaintiff were demurrable, the court refused to wade through the mass of pleading which had been filed in the court below, to find it out for themselves ; and being of opinion, in the absence of argument, that the pleading was good, afi&rmed the judgment of the court below upon such pleadings. The unnecessary and improper length of pleadings remarked upon. Quinlan v. The Union Fire Ins. Co., 8 A. E. 376. VII. Adding and Amending Pleas. 1. Generally, Action on a life policy. The application con- tained a number of questions and answers, and at the foot was a declaration, signed by the assured, that to the best of his knowledge and belief the foregoing statements and other particulars were- true : that the declaration should form the basis of the contract ; and that if any untrue aver- ment had been intentionally made therein or in the replies to the company's medical adviser in connection therewith the policy should be void. By the policy the declaration and ' ' relative papers" were made the basis of the contract, with a proviso that if any fraudulent or wilfully un- true material allegation was contained in said declaration ; or if it should thereafter appear that any material information had been withheld, and any of the matters set forth had not been truly and fairly stated, then the policy should be void. To the questions in the application as to the name and residence of usual medical attendant, and for what serious illness had he attended, the assured answered ' ' none " : and to the questions by the medical adviser as to what other disease or per- sonal injury and from whom had he received professional assistance, &c. , the assured answered ' ' none. " It was found that these answers were wilfully untrue, and that the information was wilfully withheld from and was material to be stated to the company : — Held, that these an- swers constituted a breach of the express con- tract between the parties and therelore the policy was void. The pleas setting up these defences. 611 PLEADING. 612 were added at the trial, and after the case had been in progress for some time. The action was commenced before the Judicature Act came in force, but the trial took place thereafter:— Held, that, whether under sec. 8 of the Administra- tion of Justice Act, or under Eule 128 of the Judicature Act, the pleas were properly added. Russell V. The Canada Life Assurance Co., 32 C. P. 256. Affirmed, 8 A. R. 716. Allowing plea of promissory notes being in- sufficiently stamped. — Pleading want of stamps. See Caughill v. Clarke, 3 0. R. 269, p. 74 ; S. O. 9 P. R 471, p. 74. The judgment of the court below (32 C. P. 131) overruled the demurrer on the assumption that the plea had been amended according to leave given, but the appeal book did not shew the amendment to have been made, and the de- fence as set out in the printed case was heldb i on demurrer, and the appeal by the plaintiff allowed with costs. Cameron J. , dissenting, who thought that under the circumstances the plea should be treated as amended pursuant to leave granted by the court below, and that the judgment of the court below which was in the opinion of this court right as it was givjn, should not be reversed. Boswell v. Sutherland, 8 A. R. 233. 0, was a member of Court Maple of the de- fendants' order, and was insured under the en- dowment provisions thereof for $1,000. This court left the order in a body and joined another order of Foresters, and it was in consequence suspended. On joining the new order it was ar- ranged that 0., who was in ill-health and had gone to California for change, should be taken and insured with the others. By the rules of defendants' order members of suspended courts in good standing at suspension were, on applica- tion within thirty days, to the supreme secre- tary, and payment of a fee of |1, to receive a •card of membership and be entitled to the en- dowment, provided they paid all assessments as they fell due, and affiliated with another lodge of the order ; but, if after thirty days, they must pass a medical examination. On his re- "turn from California, 0. on ascertaining that the Court Maple had been suspended, within the thirty days, being then in good standing, applied to the defendants' supreme secretary for his card of membership, tendering fl and assessments due, which was refused on the ground that a medical certificate was necessary. 0., by reason of his not having the card, was prevented from affiliating, though he endeavoured to do so, with another court. By the endowment certificate the $1000 was payable to the widow, orphans, or legal heirs of O. , and by endorsement thereon O. directed the amount to be paid to the plain- tiff, the widow. At the trial an amendment was asked, to set up a forfeiture of the policy by rea- son of 0. having gone to California without a permit, which was refused by the judge :— Held, under the circumstances the refusal was proper. Quaere, whether the way, cause, and manner in and for which 0. and the other members of Court Maple left it and joined in a body another ■order might not, if properly pleaded, have re- quired some consideration. The frame and effect of thepleadings in this case considered. Oates V. The Supreme Court of the Independent Order of Foresters, 4 0. R., 0. P. D. 535. VIII. When Cause is at Issue. A cause is at issue where a joinder of issue has been delivered, or where three weeks have elapsed after statement of defence has been de- livered. Schneider v. Proctor, 9 P.R. 11. — Dal- ton, Master. IX. Costs. Where the original plaintiffs in an action were not entitled to any relief but by amendment, and a party was added to whom relief was granted: — Held, that the defendants were en- titled to costs of the action up to the date of the amendment. Clarkson etalv. White et al, 4 0. R. , Chy. D. 663. See Woodward et al v. Shields, 32 C. P. 282, p. 606; Scntt V. Creighton, 9 P. R. 253, p. 607; Clarke v. McEwing, 9 P. R. 281, p. 607; Sckwoi V. MoOloughlin, 9 P. R. 475, p. 603. (Before the Judicature Act, 1881. ) PLEADING AT LAW. I. General Pbinciples. 1 . Embarrassing Pleadings. The plaintiff alleged in one count in trover that the defendant converted to his own use, or wrongfully deprived the plaintiff, &c. : — Held, overruling Bain v. McKay, 5 P. R. 471, that the count was not embarrassing. Taylor v. Adams, 8 P. R. 66.— Dalton, Q. C. The C. L. P. Act, (R. S. O. c. 50), a. 120, em- powers the court or a judge to strike out pleas not merely where they are embarrassing, because confused in terms and so difficult to understanfl, but where they combine several defences in one plea, or are repetitious of a defence already pleaded, and may thus be embarrassing, or pre- judice a fair trial. In this case, being an action on promissory notes, the defendant having plead- ed total failure of consideration, added other pleas repeating that defence, and setting up besides another agreement, not necessarily con- nected with the notes, and so stated as to leave it uncertain whether it was intended as a separ- ate defence or as supporting the other defence : — -Held, affirming the judgment of Cameron, J., that such pleas were properly struck out. Abdl V. McLaren, 31 C. P. 517. 2. Departure. To the plea of "non est factum," the plaintiff replied on equitable grounds, alleging that the defendants accepted the deceased's application for insurance, and that the policy was issued and acted upon by all parties as a valid policy, hut that the seal was inadvertently omitted to be affixed, and claiming that the defendants should be estopped from setting up the absence of the i seal or ordered to affix it : — Held, a good repli- cation and not a departure from the declaration. Wright V. London Life Ins. Go. , 5 A. R. 218. i Action on a debenture, by which the defend- ants agreed to pay to the bearer £200 stg. at the €13 PLEADING. 614 ■office of a named bank, and on a named day, upon presentation and surrender there of the ■debenture. Averment of performance of all con- ditions precedent. Breach non-payment of the -principal sum : — Held, by Osier, J., and affirmed by the full court, that the presentation and surrender of the debenture at such place and date were conditions precedent, and the perform- ance of such conditions having been averred in iihe declaration, a replication alleging presenta- tion on a later day was a departure. T!ie Mon- treal City and District Savings Bank v. The Cor- poration of the County of Perth, 32 C. P. 18. 3. Certainty and Particularity. Declaration, that D. , by writing, for valuable consideration, duly assigned to plaintifif the sum of $500, money due and to become due to D. by defendants, whereof defendants had notice in writing, and at the time of and after said assign- ment, and after said notice, and before action, defendants were indebted to D. in money suffi- -cienttopay the sum so assigned to plaintifif, &c.: — Held, on demurrer, bad, as not setting forth any fact from which the existence of and prom- ise to pay a debt would be implied by law. Mitchell V. Goodall, 44: Q. B. 398, and Brice v. Bannister, L. R. 3 Q. B. D. 569, distinguished. Smith v., The Corporation of Ancaster Township, 45 Q. B. 86. To an action for maliciously making demand for an assignment under the Insolvent Act the defendant's third plea after setting up a variety of dealings between the parties, shewing that the plaintifif had from time to time failed to meet his engagements with defendants, concluded that the plaintifif being indebted to the defendants in the sum of §1,400, and being unable to pay the same or to meet his engagements, and the plain- tiff being also to the knowledge of the defendants indebted in large sums to divers other persons, creditors of the plaintifif, the defendants bona fide believing the plaintifif to be insolvent within the meaning of the Insolvent Act of 1875, and amending Acts, and having reasonable and pro- bable cause for so believing, and without malice made a demand on the plaintiff, &o. : — Held, a good plea, although it was not expressly averred in the words of sec. 4 that the plaintiff had ceased to meet his liabilities generally as they became due. Qusere, whether that expression means his liabilities to the particular creditor or to his cre- ditors generally. Naglev. Timmins el al., 31 C. P. 221. See Corporation of the Town of Peterborough v. " \ 31 C. P. 231, p. 27. II. Declabation. 1. Veniie. In an action for damages caused by the non- repair of a highway in the county of York the venue was laid in Peel, but the declaration did not state in what county the highway was situ- ■ate. The venue being admitted to be wrong, plaintiff was allowed to amend his declaration. JSrown V. The Corporation of the County of York, 8 P. R. 139.— Dalton, Q, C. In an action wherein the sheriff is plaintiff or defendant, the opposite party, if he so desires, may have the action tried in the county adjoin- ing that in which the sheriff resides. Bramien. V. Jarvis, 8 P. R. 322.— Gait. 2. Changing Venue. Held, that there is no appeal to the full court in term from an order of the clerk of the Crowa and Pleas, made on an application to change the venue in County Court cases under R. S. 0. c 50, s. 155, but the only appeal in such cases is to a judge in chambers under sec. 31 of the Act : — Held, however, that if an appeal did lie to the full court it might be made direct thereto with- out first going before a judge in chambers. Sem- ble, in such cases the proper course is to follow, as laid down in the Act, the practice in force in the Superior Courts, and that the mere fact of the cause of action having arisen in the county to which it is sought to change the venue is not, of itself, sufl&cient to outweigh any actual prepon- derance of convenience arising'from other causes in favour of retaining ths venue where the plain- tiff had laid it. Mahon et al v. JSicholls, 31 C. P. 22. 3. Time for Declaring. A plaintiff must declare within one year after the service of the writ of summons, inclusive of the day of service. March'ison v. Canada Far- mers' Ins. Co., 8 P. R. 451.— Dalton, Q. C. 4. Form of. Remarks as to the proper form of declaration in an action for negligence in investing money where the defendant was not paid by the lender but by the borrower. Carter v. Hatch, 31 C. P. 2933 III. Pleas in Abatement. The defendant pleaded to an action in a Su- perior Court, ^ on a writ specially endorsed for |410, that there was a suit pending in a County Court brought by the plaintiffs against the de- fendants, for the same cause of action : — Held, that the plea should aver that the cause of action in the first suit was within the jurisdiction of the County Court. Morgan v. Ault, 8 P. R. 429.— Dalton, Q. C. The plaintiff brought his action for damages caused by the non-repair of a highway in the county of York, and laid the venue in Peel, but the declaration did not state in what county the nighway was situate. Defendant pleaded not guilty ; and j2) that the court ought not to have further cognizance of the action, because the cause of action is local, and arose in the county of York and not in the county of Peel : — Held, that this was properly a defence in bar, and not in abatement : — Held, that whether a plea in abatement, or to the jurisdiction, it could not be pleaded with a plea in bar. Brown v. The Cor- poration of the County of York, 8 P. R. 139. - - Dalton, Q. C. 615 PLEADING. 61& IV. Time foe Pleading. A defendant has four days only to plead to a new assignment. McDonald v. McKinnon, 8 P. R. 13.— Dalton, Q. 0. V. Pleas in Bab and Subsequent Pleadings. 1. Similiter. With his joinder of issue, the plaintiff served notice of trial for the Chancery sittings. De- fendant afterwards served a similiter and jury notice ;— Held, that the similiter and jury notice were good, and that the notice of trial must be set aside. McLaren v. McCuaig, 8 P. R. 54. — Dalton, Q. 0. The plaintiff joined issue upon defendant's pleas and at the same time filed a similiter, with- out a jury notice, for the defendant. After- wards the defendant filed a second similiter, and with it a jury notice : — Held, that defendant should have filed a jury notice with his pleas ; that the first similiter y. as good, that the second was unnecessary, and must, itogether with the jury notice, he struck out as bad. Hyde v. C'asmea, 8 P. K 137.— Dalton, Q. 0. 2. Other Cases. Held, that it was no objection to a replication that it shewed for the first time that interest only was claimed, for that being merely an accessory to the jrii.cipal, need not be claimed as damages. Montreal City and Lisirict Savhujf Bauik v. Cor- poraticn of the Comity of Perth, 32 C. P. 18. Held, that a plea which, after travel sing the presentation of the debenture modo et forma, alleged it was aftern ards paid and was then duly surrendered to the deiendants, was a good plea, as the plaintiffs, by excepting to it, admitted payment of the principal sum, which would in- clude the ncminal damages, if any, alone recov- erable foi* its detention, while the surrender of the debenture would shew that the payment was in satisfaction and discharge of the debt, if not of the damages also ; that it was no answer to the plea to say that the surrender before the damages were paid was by mere oversight and inadvertence so long as it appeared to be inten- tional ; but that it would be a good answer to say that such delivery was on the express agree- ment that the right to damages was reserved : — Held, also, that after failure to make a due pre- sentation, there could be no recovery until a de- mand was made for payment, which must be made on the defendants. Osborne v. Preston & Berlin R. W. Co., 9 C. P. 241, and Fellowes v. Ottawa Gas Co., 19 C. P. 174, commented upon. Tb. In an action for calls defendants pleaded that plaintiffs' license had been suspended : — Held, on demurrer, that the defence should have alleg- ed notice in the Gazette of the suspension of the icense, pursuant to R. S. c, J 60, s. 34, and 42 Vict. c. 25, s. 3, sub-s. 7, but an amendment was allowed, this point not having been taken. Uni- on Fire Ins. Co. V. Lyman, 46 Q. B. 471, The declaration alleged that the defendant laid an information that certain harness had been stolen by the plaintiff, whereas the informa- tion proved was qualified by the addition of th& words " as he supposed": — Held, no variance, Colbert v. Hides, 5 A. R. 571. The plaintiff lent P. a sum of money, for se- curing the repayment of which P. gave a chat- tel mortgage on goods which P. was to retain possession of, and the defendant executed a bond,, conditioned that in default of payment the goods, should be forthcoming for the purpose of seizure and sale under the mortgage. Before the day of payment arrived the goods were destroyed by fire, and an action having been commenced against: the defendant on his bond, he pleaded the fact of such destruction without any default on his. part : — Held, bad on demurrer, for not negativ- ing any default on the part of P. (Cameron, J.,. dissenting.) Boswell v. Sutherland, 8 A.R. 233.. See Creightonv. Chiilich et al, 7 S. 0. E. 348„ p. 56. VI. Equitable Plea. Declaration upon a promissory note. Third, plea, ' ' that the defendant made the said note with and for the accommodation of one W. C, at the request of the plaintiffs, in respect of a. pre-existing debt, then due to the plaintiffs, by the said W. 0. alone,and the said note -Hasdrawn^ payable on demand, with interest at ten per cent., and except as aforesaid there was ijeverany value or consideration for the making or pay- ment of the said note by the defendant." Fourth plea, on equitable grounds, that the defendant made the note jointly and severally with W. C. for his accommodation, and as his surety only, to- secure a debt due to the plaintiffs, and that after the note became due the plaintiffs gave W. C. an extension of time for the payment of the note ; — '• Held, that the third plea was good, for it shewed that no extension of time had been given, and therefore that theie was no consideration, and that the fourth was not an equitable plea, and must be amended by striking out the words, " upon equitable grounds," and the jury notice served with it allowed to stand. Merchant^ Lank v. Robinson, 8 P. R. 117.— Dalton, Q. C. VII. Demueker. A count having been drawn so as to invite a demurrer the demurrer was overruled without costs. Smith V. Corporation of Ancaster Town- ship, 45 Q. B. 86. VIII. Amendment oe Pleadings. 1. Parties. In ejectment the plaintiff obtained a verdict^ but as the defendant had made improvements oa the land under a bona fide belief that the land was his own he was held entitled to the rehef given by R. S. 0. c. 95, s. 4, and the Master in. (. Jhancery at Ottawa was directed to ascertain the vahie of such improvements and report thereoa which he did. A rule nisi having been obtained to refer back the report for the reasons stated,, it appeared that after the report the defendant- ■ died intestate, and that no personal representative 1 had been appointed, leaving a widow who was re- siding on the land in question and a son by % €17 PLEADING. 618 former wife but no children by the second wife, and also that defendant had assigned all his in- terest in the sum to be found due for improve- ments to a loan society. The court permitted the plaintiff to amend his rule nisi by calling on the widow or son of the deceased and on the loan so- ciety to shew cause why they should not be made parties to the suit and why the former should mot be appointed under A. J. Act, s. 9, to repre- sent the estate of the defendant for the purposes of this motion and all subsequent proceedings in -the reference, and why in that event the relief , asked by the rule should not be granted. The lule to be returnable on fourteen days' notice before a single judge. McCarthy v. Arbuckh, 31 -C. P. 48. Leave was granted to amend a declaration where "the Commissioners of the Coboarg Town Trust" were sued as a corporation, by substitut- ing the names of the commissioners. MeShe.rry V. Cnrporation of the Cobourg Town Trust, 45 Q. B. 240. After issue joined one of two plaintiffs gave to ^;he defendant a release under seal of all actions •and demands. The defendant thereupon moved to stay all proceedings in the suit : — Held, that the defendant should plead the release, and that he was not entitled to a stay of proceedings, and the remaining plaintiff was allowed to strike out the name of the other plaintiff. McA Ipine et al. ^. Oarling, 8 P. R. 171.— Osier, of the surviving brothers and sisters of the in- testate filed a bill against A., to which they made all the next of kin of the intestate parties, calling upon A. for an account of rents received, and seeking to restrain him from further inter- meddling therewith. . The court [Spragge, C.J on demurrer by A. held the bill was not multi- farious. Young v. Wright, 27 Chy. 324. See Campbell v. Campbell, 29 Chy. 252, p. 620. 2. Other Cases. The plaintiffs applied at the trial to amend •their declaration by striking out a term of the bargain therein alleged, but not proved, that the plaintiffs would sell as much of the tea as they X!0uld : — Held, an amendment which was impera- tive under R. S. 0. c. 50, a. 270. Lumsden et al •V. Davis, 46 Q. B. 1. Adding plea of fraud, in action against surety, »t second trial See The Corporation of the Vil- lage ofGananoque v. Stimden, 1 0. R. 1. Power of Supreme Court to allow amendment. See The South West Boom. Co. v. McMillan, 3 S. -C. R. 700 ; Moore v. The OonnectictU Mutual lAfe Ins. Co. of Hartford, 6 S. C. R. 634. IX. Waiver of Objections. The obtaining of an order for time to reply •waives an objection that no notice to reply was .-served, and takes the place of such notice. Lock w. Todd, 8 P. R. 60.— Daltou, Q. C. (Before the Judicature Act, 1881.) PLEADING IN EQUITY. I. Bills. 1. Form of. (a) Multifariousness. The owner of real estate died intestate, and A. the husbaod of one of his sisters, took possession of the property and appropriated to his own use ike rents and profits thereof, whereupon some (b) Certainty and Particularity. In a bill seeking to obtain the benefit of a sale of land freed from the dower of the widow of the deceased owner, it was alleged that he had died at such a time as would, if true, bar the widow's right to dower, and submitted "that the defen- dant E. B. (the widow) is not entitled to dower": — Held, a sufficient allegation that the defen- dant's right to dower was barred by the statute, though it omitted to state that this was the legal result of any particular statute. BaiJcs v. Bell- amy, 27 Chy. 342. In a bill filed by a mortgagor against his son, a bidder at the sale by another of the defendants, a loan comp my, to which bill the company and one B. were also defendants, it was alleged that it had been agreed between the son and B. that in consideration of the son securing to B. a debt of the plaintiff, B. would advance the deposit necessary to enable the son to buy the land at the sale ; that the son should attend and buy in the land which he accordingly did ; that in con- sequence of B.'s refusal to mike the promised advance the son was unable to carry out the sale ; that the bidding of the son deterred others present from bidding, and that B. afterwards privately bought the land at a great under value to the loss of the plaintiff : — Held, on demurrer that the bill sufficiently, though inartiticiaUy alleged that by reason of B.'s agreement and refusal to make the advance agreed upon, he had occasioned an abortive sale and profited thereby to the loss and damage of the plamtiff. Gamp- ion V. Brackenridge, 28 Chy. 201. The bill stated that the plaintiff was grand- son of L., who had died intestate : — Held, that this did not sufficiently state the title of the plaintiff. Lario v. Walker, 28 Chy. 216. A railway company paid to tenants for life the full price of the land conveyed by them to the company for their line of railway, and on the cesser of the life-estate the parties entitled in remainder filed a bill stating that the railway company assumed to purchase the lands for the right of way ; that the company alleged that they had paid the full consideration for the land to the tenants for life ; submitting that if the company did make such payment they did so ia their own wrong, and asking for payment of the plaintiff 's share of the purchase money : — Held, (1), that the word "assumed" was a sufficient allegation of the fact of sale and conveyance. But (2), that the statement that the company " alleged " that the purchase money was all paid to the vendors was not sucb a positive statement of the fact of payment to the tenants for life as to make them proper parties to the bill, and a demurrer was allowed on this ground. Owstott V. THie Grand Trunk R. W. Co., 28 Chy. 428. 619 PLEADING. e2ir (c) Prayer for General Relief, If the allegations in a bill state a case entitling a party to relief, he may under the general prayer have it, though his specific prayer may have been for other relief ; but a plaintiff cannot take ad- vantage of the ambiguity of his own pleading so as to claim upon facts stated in the bill alio intuitu, a relief entirely foreign to the scope of the biU. The bill, which was filed against the executors of C. S., his widow and children, prayed that the proceeds of an insurance policy which had been effected by the deceased for his wife and children should be subjected in the hands of thfe executors, to the payment of moneys lent by the plaintiff to the deceased, and applied by him to the support of his children, and that the exe- cutors might be restrained from paying over the money. Blake, V. C. . overruled a demurrer thereto, and under the prayer for general relief granted administration : — Held, reversing this decision, that under the circumstance» the plain- tiff was not entitled to the administration decree. Oaughan v. Sharpe et al., 6 A. R. 417. See Gunn v. Trust and Loan Co. et al. , 2 O. E. 393 p. 609; Jessup v. Grand Trunk S. W. Co., 3 A. E. 128. 2. Cross Bill. The object of a cross bill ordinarily was to ob- tain discovery on the part of the plaintiff in the cross cause to be used in the original cause ; or in order to obtain fuU relief in respect of the subject matter of litigation in the original cause. Therefore, where a bill was filed to restrain arbi- trators, on the ground of irregularity in their appointment, from acting in respect of matters in dispute between the plaintiff and defendant companies, and the defendant company by their answer asked that if the court entertained the case it should afford them relief in respect of the matters in dispute between the companies: — field, that this was not the proper office of a cross bill, and therefore could not be set up as a subject of cross relief by the answer. Direct Cable Co. (Limited) v. Dominion Telegraph Co., 28 Chy. 648. II. Pasties. 1. Persons Suing on Behalf of a Class. Where a suit is instituted by a judgment creditor, who has not placed an execution against lands in the hands of the sheriff, in order to set aside a deed as fraudulent, he must sue on behalf of all creditors of the defendant, and the fact that the deed was made by a third party in con- sideration of money paid by the debtor does not alter the rule of pleading in this respect. Mor- ■phy V. Wilson, 27 Chy. 1. Where a right of suit exists in a body of per- sons too numerous to be all made parties, the Court win permit one or more of them to sue on behalf of all, subject to the restriction that the relief prayed is one in which the parties whom the plaintiff professes to represent have all of them an interest identical with that of the plain- tiff. But where a mutual insurance company had established three distinct branches, in one of which, the water-works branch, the plaintiff insured, giving his promissory note or under- taking to pay $168, and the company made an assessment on all notes and threatened suit in the Division Court for payment of such assess- ment, whereupon the plaintiff filed a bill "on behalf of himself and the other policy holders associated with him as hereinafter mentioned,'" alleging the company was about to sue him and the other policy holders in said . branch, that large losses had occurred in the company prior to the time of his effecting his insurance, and insisting that he and the other policy holders could be properly assessed only in respect of such losses as had arisen since they entered the company, and praying that the necessary inqui- ries might be made and accounts taken, alleging that the Division Courts had not the machinery f 1 r that purpose : — Held, that according to the statements of the bill, the policy holders in the- water- works branch were not represented in the- suit, and a demurrer on that ground filed by the company was allowed with costs. Thomson v. Victoria Mutual Fire Ins. Co. et al., 29 Chy. S6. The plaintiff filed her bill for alimony, alleging that a'conspiracy had been entered into betweea her husband and the other defendant to prevent her realizing any alimony that might be awarded her, and that for that purpose her husband fraud- ulently conveyed all his lands to the co-defen- dant, and the bill prayed to have such convey- ance declared fraudulent. The grantee in the impeached conveyance demurred for multifari- ousness, for want of equity, and want of parties. The court (Boyd, C.) overruled the demurrer on the first two grounds, but allowed the demurrer for want of parties ; the plaintiff not ha™g re- covered judgment and execution, could only sue- in a representative capacity-^-tliat is on behalf of herself and all other creditors. Longeway v. Mitchell, 17 Chy. 190; Turner v. Smith, 26 Chy- 198 ; Culver v. Swayze, lb. 395, and Morphy v, Wilson, 27 Chy. 1, considered and followed- Campbell v. Campbell, 29 Chy. 252. See The City Light and Heating Company etaL V. Macfe etal, 28 Chy. 363, p. 623. 2. Mcecutors and Administrators. An action for money had and received will lift wherever a certain amount of money belonging; to one person has improperly come to the hands, of another. Therefore where a railway company paid to the executors of ^ tenant for life the. sum payable for the fee simple of lands taken by the company for the purposes of their roEid„ and subsequently the remainderman filed a biB. against the company and the representatives of the tenant for life, seeking to obtain payment from the company of the proportion of purchase; money payable to the remainderman : — Held, that the executors were properly made parties- with a view to the company obtaining relief oyer against them in the event of the company being compelled to make good the money in the first instance, and a demurrer by the executors was- overruled with costs, on the ground that the company were entitled to a remedy over against them for the amount overpaid them, and on the additional ground that the bill alleged all. facts necessary to entitle the plaintiffs to a direct decree against them, although the bill was not framed with a view to a direct remedy against 621 PLEADING. 62i the exectitors ; for " the payment being made by the company to the executors * * * of money, to a proportion of which the plaintiffs •were entitled, and the payment being made with- out the authority of the plaintiffs it became money had and received by the executors to the use of the plaintiffs." Owston v. The Grand Trunk E. W. Co., 28 Chy. 431. The biU shewed that the testator had appoint- ed four executors, three of whom died, but stated that those so dying bad never received any por- tion of the assets. In a suit for the administra- tion of the estate, a demurrer ore tenus on the ground that the representatives of such deceased executors should be parties, was overruled with costs. Wtbster et al. v. Leys et al, 28 Chy. 471. The bill for the administration of the estate of 6. E. alleged that G. had appointed his brother J. E. his executor, and devised to him all his estate upon trust for the benefit of the testator's wife and children as to J. would seem best ; the will giving J. power to sell the realty. J.E. proved the wiU of G., and shortly after his death made his own will by which he purported to dis- pose of G's estate, the validity of which the bill impugned, and C. S. D., a married daughter of 6., was made a defendant, the bill alleging her to be the wife of S.H.D. J.E. made an appoint- ment under G.'s will, whereby 0. S. D. became entitled to a portion of the estate. The defend- ant demurred on the ground that S.H.D. should have been a party : — Held, that the interest of C. S. D. was merely a chose in action not reduc- ed into possession by her husband, in respect of which she might be sued as a feme sole, and therefore the demurrer was overruled with costs, following Lawsou v. Laidlaw, 3 A. R. 77. Sive- wright v. Lees, 28 Chy. 498. The bill in this case distinctly charged that the defendant had misapplied the moneys of the estate of G. mixing them with his own, and em- ploying them for his own purposes, a demurrer ore tenus that G. 's estate was not properly re- presented, on the ground that one executor could not represent the estates of both G. and J. was also overruled with costs ; for although during the progress of the cause it might become neces- sary to have different persons represent the two estates that did not constitute a ground of de- murrer. Ih. The plaintiff filed his bill against his two broth- ers seeking administration of his father's estate, of which he alleged they bad possessed them- selves on his death in 1848. It appeared that the plaintiff attained his majority in 1857, and it was not proved that any fraud or concealment had been practised upon him : — Held, that the suit was improperly constituted, as the fathers' personal representative was not before the court. Hughes v. Hughes et al, 6 A. R. 373. husbands, but the stating part of the bill did not allege that they were manied; a demurrer on the ground that their husbands were not named as parties was overruled with costs. Webster et al V. Leys et al, 28 Chy. 471. In application for injunction in respect of wife's property. See Hathaway v. Doiq, 6 A. R. 264, p. 342. 3. Husband and Wife. Held, under R. S. O >;. 125, that in an action for a tort committed by a wife during coverture the husband is not a proper party, but the wife must be sued alone. Amer v. Bogers et ux, 31 C. P. 195. In a bill the style of cause named several fe- males as being severally wives of their respective 4. Other Persons. To an information alleging that the bridge erected by the International Bridge Company constituted a nuisance a railway company who had become lessees of the bridge were held to be proper parties. ?'Ae Attorney General v. The International Bridge Co., 27 Chy. 37. The lessees of the road having been made par- ties to the bill, the Court under the facts stated in the report of this case refused relief against them with costs to be paid by the lessor com- pany. Cameron v. The Wellington Grey and Bruce W. Co., and The Great Western R. W. Co., 27 B. Chy. 95. The rule of equity is, that if any person not made a party to the suit be a necessary party in respect of any part of the relief prayed by the bill, it is ground of demurrer. Where, therefore, a bill was filed against the Dominion Telegraph Co., seeking to restrain that company from carrying out an agreement for the transfer of telegraphic messages to the American Union Telegraph Company, on the ground that such agreement was in contravention of an agreement previously entered into between the plaintiff and i defendant companies for mutual exclusive con- nections and exchange of telegraphic business, without making the American Union Company a party, a demurrer for want of parties on that account was allowed, with costs. Atlantic and Pacific Telegraph Co. v. Dominion Telegraph Co. 27 Chy. 592. In a suit to set aside the nomination by the defendants of an arbitrator on behalf of the plaintiffs for irregularity in such nomination :^- Held, that the arbitrators being necessary parties and the defendants resident in this country, the arbitrators, though resident out of the jurisdic- tion, were properly made defendants to the bill. Direct Cable Co. v. Dominion Telegraph Co., 28 Chy. 648. A demurrer to a bill filed by shareholders of an incorporated company on behalf of themselves and all other shareholders except the defendants, in which the company were joined as co-plain- tiffs, attacking a transaction whereby all the shareholders, including some of those whom the plaintiffs assumed to represent, received shares in the transaction sought to be impeached, was allowed. The City Light and Heating Co. of London et al. v. Macfie et al, 28 Chy. 363. To a bill by a rural school section corporation to compel the municipality to make good money paid by the municipality to a person alleged not to be the duly appointed officer of the corpor- ation, the treasurer of the municipality is not a proper party. School Trustees of the Township of Hamilton v. Neil, 28 Chy. 408. 623 PLEADING. 62i Where proceedings were taken against sureties without joining their principal : — Held, that the plaintiffs could not proceed against the sureties alone if th6y required the joinder of the principal in order that they might have their remedy over against liim. Exchanoe Banh v. Springer ; Same Plaintiffs v. Barnes. 29 Ohy. 270. Where a bill was filed by a creditor to vacate a deed of composition and discharge, where the discharge had been obtained by a fraudulent concealment of assets : — Held, that the assignee in insolvency was not a necessary party. McGee V. Campbell et al, 2 0. R., Chy. D. 130. See McLeaWY. Bruce, 29 Chy. 507, p. 624. III. Answeb. 1. Supplemental Answer. The bill alleged that defendant had given the plaintiff certain notes on account of the purchase money of a vessel, and a mortgage on the vessel as collateral security; Defendant's answer filed in November, admitted this allegation, which was denied by his co-defendant. In March he applied for leave to file a supplemental answer, withdrawing his admission, and aettingup that the notes were given for plaintiff's accommodation, and denying the allegation as to the mortgage. His affidavit stated that he had forgotten the facts, which occurred some years since, when he awore to his answer, and he only remeribered them on having a conversation with his co-de- fendant. The application was refused. Wright V. Way, 8 P. R. 326 -Taylor, ife/eree. —Blake. A decree which had been made against several defendants, one of them. A., being administrator ad litem of a defendant who had died before answer was vacated as to defendant B. and leave given him to file a supplemental answer and have a new hearing of the cause. Subsequently C. who had since the decree and before the ap- peal been appointed administrator in place of A. who died after decree, applied for leave to file an answer setting up defences which his prede- cessor had omitted. It was shewn that he had been appointed pro forma to represent the estate ; that no proceedings in appeal had been served upon him, and that no further relief was sought against the estate. The referee granted the leave asked : — Held, affirming the order of Proudfoot, V. C. , that the vacation of the decree against B. did not, under the circumstances, open up the decree as against the deceased defendant's estate, and that the referee had, therefore, no power to allow C. to file a supplemental answer. Peter- kin V. McFarlane et al., 6 A. E,. 254. IV. DEMtrBRER. 1. For want of Equity. Where certain shareholders in a company joined with the company as plaintiffs as a pre- cautionary measure merely in case it should transpire that their co-plaintiffs, the company, were not entitled or were unwilling to sue, the court (Blake, V. C. , ) refused to allow a demurrer for want of equity, as the objection was purely of a formal nature. The City Light and Heating Co. of London et al. v, Macfie et al., 28 Chy. 363. The plaintiffs A. and J. filed a bill for the pur- pose of having a deed made to the defendant by J. declared void, as having been obtained by fraud and misrepresentation. The bill alleged, that J. had subsequently made a deed of the same property to A., for the purpose of remedying, as far as he could, the wrong he had done by con- veying to the defendant, the bill alleging that such deed to A. was made to him "as trustee for the heirs of A. M. , " who had died seized. The bill in no place alleged that A. was trustee, but in the following paragraph it was stated that ' ' before the execution of such last mentioned deed the heirs of the said A. M. , who are the rightful owners of the said land," &c. : — Held, that notwithstanding the absence of any express allegation of A. being such trustee, sufficient was stated to shew that he had accepted the office of trustee, and as such was entitled to litigate the subject matters of the bill, and a demurrer for want of equity was overruled with costs. A de- murrer ore tenus for misjoinder of plaintiffs, it appearing by the bill that J. had no interest in the question raised, was allowed, without costs. Roche V. Jordan, 20 Chy. 573, followed. Mc- Lean V. Bruce, 29 Chy. 507. See The A ttorney-General v. The [ntemational Bridge Co., 27 Chy. 37, p. »42. 2. OtJier Cases. On the argument of a demurrer any document referred to mugt be taken to be truly stated, and cannot be looked at to contradict or alter the averments in the pleading, even though there is a reference to the instrument for greater cer- tainty as to its contents. Longhead v. Stubbs, 27 Chy. 387. The defendants set up by way of defence and as a ground of demurrer to the plaintiffs' bill, to restrain proceedings by the alleged arbitrators, the pendency of another action in New York for the same purpose ; but — Held, that this could only form a ground for application to stay pro- ceedings, or to compel the plaintiffs to elect be- tween the two tribunals ; and, Semble, that under the circumstances set out in the report of the case, it could not be taken advantage of in any way. The Direct United States Cable Co. (Lim- ited) V. The Dominion Telegraph Co. of Canada, 8 A. R. 416 ; 28 Chy. t48. A bill alleged that a mortgage was executed by W. to the defendant in consideration of $450 ; that the defendant advanced only f 150 thereon, and W. being entitled to receive the balance assigned such right and conveyed his equity of redemption to the plaintiffs, that the defendant refused to pay the balance, and claimed to hold the mortgage as security for $450. The prayer was for specific performance or in the alternative a declaration of the above facts and for general relief. At the hearing the learned judge allowed a demurrer ore tenus on the ground that an agreement to lend money could not be specifi- cally performed : — Held, reversing this judgment that upon the facts alleged in the bill, namely, that the mortgage was being held for more than had been advanced thereon, and therefore to that extent formed a cloud on the title the plaintiff would be entitled to a declaration to that effect. 625 POST OFFICE. 626 and appropriate relief, and as ,tlie demurrer ad- mitted the truth of the allegation it should have Tieen overruled. Calvert v. Burnham, 6 A. R. ■620. See SivengM v. Leya, 28 Chy. 498, p. 621 ; At- ■lantic and Pacific Telegraph Co. v. Dominion Telegraph Co., 27 Chy. 592, p. 622. V. Amendment, 1. £y Adding Parties. (a) In Af aster's Office. Certain machinery was placed in a factory on the premises in question, some before and some after the execution of the mortgage to the plain- tiffs in 1874. The mortgagor, the defendant, had no interest in any of the machinery at the -date of the mortgage to the plaintiff, having pre- viously sold out to one Abel, but afterwards he became solely entitled to all of it, and he then executed a chattel mortgage of the same to the Parry Sound Lumber Company. On the refer- ence undep the decree obtained by the plaintiflfs the master made the lumber company parties as subsequent encumbrancers : — Held (assuming the machinery or some portions of it to be trade fixtures removable as between landlord and ten- ant) that the machinery (or such portions afore- said) when acquired by the mortgagor, would go "to increase the plaintiff's security and that there- fore the master was right in making the lumber company parties as subsequent encumbrancers. London and Canadian Loan iSic. Co. v. Pulford, « P. R. 150.— Proudfoot. In proceeding upon a reference under a decree, the master cannot under the General Orders 244, "245, order a person to be made a party to the suit against whom any relief is sought; and where in proceeding under a decree for the ad- ministration of a testator's estate, the master di- rected one D. , who had been in partnership with the testator up to the time of his death, to be made a party, and requiring him with the exe- cutors to bring in under oath an account of the partnership dealings, against which D. appealed, -the court (Proudfoot, V. C.) — Held the object of making D. a party was for the purpose either of relief or discovery, and in either view the plain- tiff could not obtain it in this mode of proceed- ing, as C, so far as discovery was concerned, •could only be regarded as a witness. Hopper v. Harrison, 23 Chy. 22. , See Hill V. Merchants and Manufacturers Ins. •Go., 28 Chy. 560, p. 373; Bufv. The Canadian Mutual Ins. Co., 6 A. E,. 238, p. 373. 2. Other Cases. Although according to the ruling in Adamson "V. Adamson, 25 Chy. 552 a plaintiff will not be -allowed to amend so as to set up a title acquired after the filing of the bill, yet where by error in the conveyance the west instead of the east half -of the lot was conveyed, it would seem (per Proudfoot, V. C.) that it would not be any in- fringement of that rule to allow an amendment setting up the fact that since the filing of the hiU the error had been corrected by a new con- 40 veyance, and making the necessary amendments in the bill in accordance therewith. Dumble v. Larush, 27 Chy. 187. The proposed amendments of the bill were set out substantially in the order for the injunction, which was served : — Held, that, as the defen- dant had thereby notice of the proposed amend- ments, the objection that the amended bill had not been served was not entitled to prevail. Taylor v. Hall, 29 Chy. 101. POLICE. See CoMMissioNBKS OF Police. L II. POLICY. Of Insubance — See Insurance. Validity of Contracts with regard TO Public Policv — See Contract. II. in. IV. POSSESSION. On Transfer of Chattels — See Bins OF Sale and Chattel Mortgages. Title by — Sfe Limitation of Actions AND Suits. Under Contract for Purchase of Land — See Sale of Land. Title and Possession — -See Replevin — Trespass. POST OFFICE. The condition of a bond given by the defend- ants, as sureties for a postmaster, to the post- master-general, was, that the postmaster " do not and shall not commit any thefb, larceny, robbery or embezzlement of, or lose or destroy, or commit any malfeasance, misfeasance, or neglect of duty, from which may arise any theft, lar- ceny, robbery, or embezzlement, loss or destruc- tion of, any money, goods, chattels, valuables, or effects, or of any letter or parcel containing the same which may come into his custody or possession, as such postmaster, " fto. The post- master opened several letters which came into his possession as such postmaster, and having taken therefrom certain cheques, forged the payees' names as endorsers- thereof, and got them cashed' by a bank upon guaranteeing the gen- uineness of such eudorseme'its, The drawers refused to recognize these cheques, but issued duplicates to the payees and paid them, so that the bank lost the money. In an action by the postmaster-general on the bond, on behalf of the bank, to recover from defendants, as such sure- ties, the loss so incurred : — Held, referring to sees. 37 and 78 of the Post office Act of 1875, that defendants were not liable, for that the forgery and the postmaster's guarantee, and not the larceny, were the proximate causes of the loss , and the contents of the letters did not belong to the bank. Remarks as to form of the condition. Postmaster-Oeneral v. McGoll et at, 31 C.P. 364, 627 POUNDAGE. See Sheeiit. POUND-KEEPER. Impounding Animais— iSce Distress, POWER OF ATTORNEY. See PKiNcrpAL and Agent. POWER OF SALE. In Mobtgages — See Moktoage. I. n. m. PRACTICE. In County Coubts — See County Courts. In' Division Couets — See Division CotTBTS. In Pakticulae Actions, Suits ob Othee Proceedings — See The Seveeai Titles. PEACTIOE. 628 (Before tJie Judicature Act, 1881.) PRACTICE AT LAW. I. Weit of Summons. 1. Service. (a) On Foreign Corporations, 634. (b) Absconding Debtor, 634. (o) Service Abroad, 634. 2. Special Midorsement, 634. II. Clekk of the Cbown and Pleas. 1. Jurisdiction, 635. 2. Appeal from, 635. III. Oedees, 635. IV. Rules, 635. V. Seevice of Papers, 635. VI. Teem's Notice, 635. VII. Setting aside and Staying Peoobed- IKQS. 1. Delay in moving, 636. 2. Staying Proceedings on Equitalh (Since the Judicature A ct, 1881. ) I. Genebally, 629. n. Weits. 1. Endorsement, 629. 2. Benewal, 629. 3. Service. (a) Substitutional Service, 629. (b) Service Abroad, 630. (c) Other Cases, 630. m. Consolidating Actions, 630. IV. Judge and Mastbe in Chambees. 1. Jurisdiction, 630. 2. Appeal from, 632. V. Refbeees. 1. Appeal from, 632. VI. Peoceedings in Master's Office, 632. Vn. Notice of Motion, 632. Vni. Sebvicb of Papbes, 632. IX. TSANSFEKRING CaUSE FEOM ONE DIVI- SION OF THE High Coubt to anotheb Division, 633. X. Teem's Notice, 633. XI. Dismissing Action foe want of Peo- secution, 633. Xn. Staying and Setting aside Peoceed- ings, 633. JXIIL Varying Minutes, 634. Grounds, 636. 3. Other Cases, 636. (Before the Judicature Act, 1881.) PRACTICE IN EQUITY. I. Bills. 1. Dismissing for ward of Prosec/ution^ 636. 2. Undertaking to Speed, 637. n. New Hearing, 637, IIL Dbcbeb. 1. Amendment of, 637. 2. Review, 638. 3. Other Cases, 638. IV. Masteb. 1. References to and when Ordered, 639. 2. Changing Reference, 639. 3. Proceedings in Master's Office, 639. 4. Report. (a) Confirming, 640. (b) Other Cases, 640. 5. Appeal from, 640. V. Judge oe Refeeee in Chambees. 1. Jurisdiction, 64L 2. Appeal from, 642. VI. Service. 1. Of Bills. (a) Absconding Defendants, 642. (b) Service A broad, 642. (c) By Publication, 642. 2. Acceptance of Service, 642. 629 PRACTICE. VII. StAYIHG PsOCEEDrNGS, 643. VIII. Abatement op Suit, 643. 630 (Since the Judicature Act, 1881. ) I. Generally. Where in matters of practice there was a con- flict between common law and equity as to matters not provided for by the Judicature Act, the practice which is most convenient is to be followed. Sec. 19, sub-sec. lOrelates to matters of substantive law, not of mere practice. Friendly V. Garter, 9 P. K. 41.— Dalton, Master.— Osier. Although the decree was pronounced before the Judicature Act, and might have been reheard under the former practice, yet the cause not having been set down to be reheard before the coming into force of the Act, it could not under the provisions of the Act respecting pending business, be reheard. Trude v. Phcenix Ins. Co.. 29 Chy. 426. The policy of the 0. J. Act is to decentralize business, and send local matters to.local masters. Aitken v. Wilson, 9 P. R. 75.— Boyd. II. Writs. 1. Endorsement. The writ was endorsed for the price of land which the plaintiff had agreed to sell to the de- fendant. A motion for judgment under Rule 80, 0. J. Act, was refused. Such a claim cannot be specially endorsed. Hood v. Martin, 9 P. R. 313.— Ualton, Master. See Lucas v. Ross, 9 P. R 251 p. 392 ; Im- perial Bank v. Britton, 9 P. R. 274, p. 392. 2. Renewal. A writ of summons, dated the 17th April, 1879, was after several renewals finally renewed on the 6th April, 1881, and served on the 27th De- cember, 1881 : — Held, that no declaration having been deUvered, the case was governed by the 0. J. Act (Rule 493,) and that by Rule 31, the writ continued in force for one year from the date of the last renewal, and service on the 27th Decem- ber, 1881, was therefore good. Mackelcan v. Beeket, 9 P. R. 289.— Dalton, Master. 3. Service. (a) Substitutional Service. Where a judgment debtor had absconded, and his place of abode could not be ascertained, sub- stitutional service upon him of a summons to set aside fraudulent conveyances made by him, was allowed. Dobeon v. Marshall, 9 P. R. 1. — Osier. The plaintiff had some years previously in an action of ejectment against these defendants served them personally, and they had defended by the same solicitor. It was shewn that one defendant, the father of the other two who re- sided in the TJ. S. A. corresponded with them. An application under Rule 4, 0. J. Act, for an order permitting substitutional service on the- father for the other two defendants, was refused, it not being shewn that prompt personal service could not be effected. Robertson v. Mero et al, 9- P. R. 510.— Dalton, Jf osier.— Boyd. See Weatherhead v. Weatherhead, 9 P. R. 96,- p. 578. (b) Service Abroad. Where a defendant has been served out of the-- jurisdiction, and the service is allowed, but the defendant does not appear, no order to proceed is necessary. Division (e), Rule 45 is not to be extended t6 all the cases under the rule. Martin V. Lafferty, 9 P. R. 300.- Dalton, Master.— Proudfoot. Service of process on infant out of jurisdiction- See Rew V. Anthony, 9 P. R. 545, p. 336. Quaere, whether the personal service referred toiuR.S.O. c. 50, s. 145 refers to personal service in Quebec. Court v. Scott, 32 G. P. 148. (c). Oilier Gases, Blakeslee, Brown & 0. carried on business in partnership under the name of Blakeslee & Co. , Blakeslee absconded on the 19th eptember, and the business continued. 0. assigned his interest to Brown, and after such assignment, but before it had been made public, the plaintiff served his writ of summons against the firm on : — Held,, that the service was good. Bank of Hamilton v. Blakeslee et al., 9 P. R. 130. — Dalton, Master. Service requisite to make judgment recovered in Quebec conclusive under R. S. 0. o. 50, s. 145. See Court v. Scott, 32 C. P. 148. III. Consolidating Actions. The defendant applied to have this action con- solidated with an action brought by the defendant in the Chancery Division against these plaintiffs, on the ground that the plaintiffs' counter claim in the Chancery Division action disclosed the same cause of action as shewn in the statement of claim in this action. The action in the Chan- cery Division was commenced on the 17th May, 1882, and this action on the 10th June, 1882 : — Held, that though the case presented was not technically within the terms of Rule 395, 0. J. Act, there is an inherent right in the court to prevent an undue use of its process, and this action was stayed until that in the Chancery- Division was determined, no special reason to the contrary being shewn by the plaintiffs. Taylor et al. V. Bradfm'd, 9 P. R. 350. — Cameron. An application to consolidate two motions for administration and partition pending before a local master should be made to him and not to a judge in chambers. Lambier v. Lambier, 9 P.R, 422.— Boyd. IV. Judge and Master in Chambers. 1. Jurisdiction. A judge sitting in chambers has no jurisdictiom to order judgment to be signed under Rule 324r €31 PRACTICE. 632 ^a), but a motion for jvidgment thereunder must be made to the court. , Morrison v. Taylor, 46 <3. B. 492. The master has authority to take the account with rests, under the ordinary reference, as against an executor, but where he declines to -charge the executor in this way, if it is intended to appeal, he should be required to report the ■ facts to enable the court to determine on the propriety of his decision. Quaere, whether it is not the more proper course to bring the matter up on further directions with all the materials for consideration spread out on the report, rather thaih to appeal in such a case. Sieveivright et al. V. Leys, 1 0. R., Chy. D. 375. Jurisdiction of master in chambers over only part of subject matter. See Be Devitt, 9 P. K. 110.— Proudfoot. On motion for an order for the committal of a defendant for nou production of documents under Kule 420, 0. J. Act, which vests in the master in chambers the powers of the referee in chambers, the master — Held that matters relating to the liberty of the subject having been excepted from the jurisdiction of the clerk of the crown and pleas under the former practice, are still beyond his jurisdiction by Rule 420, 0. J. Act. Keefe v. Ward, 9 P.R. 220.— Dalton, Master. The master in chambers has no jurisdiction to entertain an application for costs under Rule 264. Bophins v. Smith, 9 P. R. 285. — Dalton, Master. The master's discretion exercised under R. S. 0. c. 39, s. 29 and Rule 420, 0. J. Act, is open to review by an appeal to a judge in chambers under Rule 427, 0. J. Act. See Christie v. Con- way et ai,.9 P. R. 529 p. 390. See Re Curry, Wright v. Curry — Curry v. Cur- ry, 8 P. R. 340, p. 589 ; Grand Trunk M. W. Go. V. Ontario and Quebec R. W. Co., 9 P. R. 420 ; infra ; Ryan v. Fish et al, 9 P. R. 458, p. 227; Thurlow V. Beck, 9'P. R. 268, p. 399. 2. Appeal from. Held that appeals from the Master in Cham- ' ters are governed by Rule 427 and not by Rule 414, which applies to appeals to a divisional court. Ijowson V. 2'Ae Canada Farmers Ins. Co., 9 P.R. 185. — Dalton, Master. — Boyd. An appeal was not made within the time re- squired by Rule 461, 0. J. Act, as it was supposed that Christmas vacation did not count. On the facts stated in the judgment leave was given to appeal on payment of costs. Sievewright v. Leys, ^ P. R. 200.— Dalton, Master. A stay of proceedings will not be granted pending an appeal unless security is given for the costs of appeal, as well as those in the court below. Application for a stay should not be made ex parte. Where a stay was granted on an ex parte application, it was held that an ap- peal might be had direct to a judge in chambers, without applying to the Master to rescind his •order. Grand Trunk R. W. Co. v. Ontario and Quebec R. W. Co., 9 P. R. 420.— Proudfoot. Where an appeal had been made at the first sit- ting of the court : — Held, not too late under Rule 414 though more than eight days had elapsed and the time had not been extended. Hewson v. Macdonald, 32 0. P. 407. v. Repbbees. 1. Appeal from. The eight days for appealing from an order of the referee under Rule 427 (c), of the 0. J. Act, count from the making of the decision, not from the entry of the order, as formerly. Where the plaiutiflPs solicitors, owing to a misapprehension on this point, allowed the eight days to elapse, Proudfoot, J. , granted further time. Dayer v. Robertson, 9 P. R. 78. Where an application for a commission to ex- amine a witness in New York, was made before an official referee, and referred by him to a judge, it was — Held that matters coming within the jurisdiction of any officer of the Court should be disposed of by him in the usual way, and the parties might then appeal from such decision. Bughes v. Rees, 9. P. R. 86.— Boyd. An order extending the time for appealing from the report of an official referee under sec. 47, 0. J. Act, should not be made ex parte. Bamilton v. Tweed, 9 P. R. 448.— Proudfoot. VI. Proceedings in Ma.steb's Office. The circumstances under which interest on a claim ought to be allowed or refused in the mas- ter's office, considered and acted on. Re Ross, 29 Chy. 385. Where an amendment in a matter of account, as stated in the pleadings, would be allowed be- fore decree, a similar amendment should also be allowed, if asked for, in respect of the accounts filed, after decree, in the master's office. C'ouri V. Bollandetal., 4 0. E., Chy. D. 688. VII. Notice of Motiok. Irregularities relied on, need not be stated in a notice of motion if they are set out in affidavits, filed on the motion, and referred to in the notice. Blain v. Blain et al, 9 P.R. 269— Dalton, Mas- ter. VIII. Service of Papers. Service of bill in partition suit on infant. See Weatherhead v. Weatherhead, 9 P. R. 96. Plaintiflf's and defendant's attorneys had an arrangement between themselves by which papers in the. suit should be sent by mail. The notice of trial was posted the day before the last for giving notice, but reached defendant's attor- ney one day too late. It was shewn that the practice of both attorneys had been to admit service as of the day of receipt : — Held, that the notice of trial must be set aside. Robson v. Ar- buthnot, 3 P. R. 313, distinguished. McDonough V. Alison, 9 P. R. 4. — Dalton, Master. A person of the same name as the defendant served by mistake with the writ in the action was — Held entitled to his costs of opposinga mo- tion for judgment under Rule 324 0. J. Act, Lucas V. Fraser, 9 P. K 319. —Dalton, Maskr. 633 PRACTICE. IX. Teansfeeeing Cause toom one Division of THE High Court to another Division. Where a plaintiflf brings an action in the Chan- cery Division which is proper to be brought there, he will not be allowed to transfer either on the ground that he wishes it tried by a jury, or thnt a transfer would expedite the trial. Vermilvea V. Guthrie, 9 P. R. 267.— Boyd. The action was transferred from the Chancery Division to the Common Pleas Division by an order of the judges, but the plaintiff not having notice of the transfer signed judgment in the Chancei-y Division. An order was made retrans- ferring the case to the Chancery Division, and allowing the judgment entered to stand and be in force from its entry, without costs. Patter- son V. Murphy, 9 P. K. 306.— Dalton, Ma-ster. X. Term's Notice. Where neither party has taken any proceeding in a suit for a year a term's notice to proceed, which was required under the Common Law practice, is not necessary under the O. J. Act. Beaver v. Boardman, 9 P. K. 239.— Dalton, Master. — ^Armour. XI. Dismissing Action for Want of Prosecution. Issue was joined on the 16th December, 1880, and on the 22nd the cause was tried, and a non- suit entered, which by consent was set aside, and the case again entered for trial at the sittings held in iVIarch, 1881, but remained over until the following sittings, when it was struck out by consent. After the Judicature Act came into force, a motion to dismiss for want of prosecution was made, and the plaintiffs' solicitors, though alleging that they did not intend to proceed, would not consent to the dismissal of the action. The master in chambers dismissed the action with costs, and this order was reversed by Cameron, J. : — Held, on appeal to the Common Pleas Division, reversing the order of Cameron, J ., that the master's order was right ; that the words in Rule 255 "for the next sittings of the court," were not confined to the first sitting after issue joined ; and that the fact that the plaintiff had already taken the cause down to trial did not prevent the defendant from moving to dismiss for not going to trial again. Chapman et al. v. Smith, 32 C. P. 555. An undertaking to speed the action is not in all cases a sufficient answer to a motion* to dis- miss under Rule 255, 0. J. Act. By G. 0. Chy. 276 a judge had discretion under all the circum- stances of the cause to dismiss or not, and the practice not being interfered with remains as be- fore the 0. J. Act, by ss. 12 and 52 of the Act. Under the circumstances of this case an order to dismiss was rescinded. Bucke v. Murray, 9 P. R. 495.— Proudfoot. 634 quently served a jury notice with the notice of trial. The defendant did not appear at the trial, and a verdict was rendered for the plaintiff, who afterwards obtained (on notice), an order in Chambers for costs :— Held, on appeal, affirming this order, that the verdict obtained on the trial by a jury was not a nullity, but only irregu- lar, and not being moved against promptly should stand. Leeson v. Lemon, 9 P. R. 103.— Boyd. As to effect of obtaining order to postpone trial. See Allen v. Mathers, 9 P. R. 477, See Taylor et al. v. Bradford, 9 P. R. 350, p> 630; Grand IrunkB. W. Go. v. Ontario and Que- bec R. W. Go. 9 P. R. 420, p. 631; ifewsonv. Mac- donald, 32 C. P. 407. XIII. Varying Minutes. On a motion to vary minutes, nothing can b& done at variance with- the order as granted, but additions or variations may be made so as to carry out the intention of the court in pronounc- ing it. Hendrie v. Beatty, 29 Chy. 423. (Before the Judicature Act, 1881.) PRACTICE AT LAW. I. Writ of Summons. 1. Service. (a) On Foreign Gorporations. The defendants were a foreign insurance com- pany doing business in Ontario, and having a head office for this province at Toronto. The writ of summons wrs served on the local agent of the defendants' company at Ottawa : — Held, that the service was good. Wilsoii v. jSltna Life Ins. Go., 8 P. R. 131.— Dalton, Q. 0. XII. Staying and Setting aside Proceedings. An order directed the trial of an issue in an interpleader matter. The plaintiff served the issue but did not serve with it a jury notice as required by E. S. 0., c. 54, s. 4. He subse- (b) Absconding Debtor. The writ of summons in ejectment was served upon the defendant's wife after he had left the country. An order to sign judgment against the husband was granted in default of ajipearance. Trust and Loan Go. v. Jones, 8 P. R. 65. — Dal- ton, Q. C. (c) Service Abroad. A copy of a writ of summons, instead of a no- tice thereof, had been served upon a defendant, not a British subject, outside of Ontario : — Held, that this was an irregularity which could not be amended, and that the copy and service of the writ should be set aside. Hendason v. Hall, 8- P. R. 353.— Cameron. 2. Special Endorsement, The particulars of claim upon a writ of sum- mons specially endorsed to which the defendant appears do not bind the plaintiff as particulars under a declaration on the common counts, and in such a case, he must comply with a demand for particulars made by the defendant. Huggins V. Guelph Barrel Co., 8 P.R. 170.— Dalton, Q.O. ■<635 PRACTICE. 636 II. Olebk ov the Oeown and Pleas. 1. Jurisdiction. Held, that it is within the power of the clerk •of the crown in chambers to make.an order for the payment of a weekly allowance to a debtor, ^mder the Indigent Debtors Act, (R. S. 0. c. 69, ) where it can legally be made. Whiatly v. Sharp, -8 P. R. 189.— Cameron. 2. Appeal from. Semble, that a judge has power to extend the time for appealing against the order of the clerk ■of the crown in chambers on an application for an allowance under the Indigent Debtors Act, (E. S. 0., c. 69,) made after four days from the making of the order. Wlieaily v. Sharp, 8 P. R. 189. — Cameron. Held, that there is no appeal to the full court in term from an order of the clerk of the crown -and pleas, made on an application to change the venue in county court cases under R. S. 0. c. 50, s. 155 ; but the only appeal in such cases is to a judge in chambers, under sec. 31 of the Act: — Held, however, that if an appeal did lie to the full court, it might be made direct thereto, with- out first going before a judge in chambers. Mdhon ■et al. V. Nicholls, 31 0. P. 22. III. Oedeks. Held, where an order directing a reference to the master has been made in chambers to deter- mine the amount due from an attorney to his •client, and the reference completed under it, an application for relief therefrom must be made to the court. In re Attorney, 8 P. R. 102. — Osier. — Full Court of Common Pleas. IV. Rules. Leave was granted, notwithstanding the lapse -of two terms, to rehear a rule made absolute setting aside a by-law, on no cause being shewn. Re Chamberlain and the Corporation of the United Counties oj Stormont, Dundas, and Glen- garry, 45 Q. B. 26. See McCarthy v. Arbuchle, 31 C. P. 48. p. 617. V. Service oe Papers. Held, that service on the defendant's attorney at his house at 9.30 p.m. on Saturday of an order and appointment to examine the defendant at 2 p.m. on the following Tuesday, was irregular, the notice not being sufficient : — Held, also, that Rule of court 135, applies to the service of orders and appointments to examine, and that this ser- vice must be treated as if made on the following Monday. Senn v. Hewitt, 8 P. R. 70.— Q. B. Service by mailing. See McDonouohv. Alison, 9 P. R. 4, p. 632. VI. Term's Notice. Where no proceeding has been taken in the ^ause fora year subsequent to issue being joined, the plaintiff must give a term's notice of his in- tention to serve notice of trial. McGleary v. Morrow, 8 P. R. 12.— Dalton, Q. 0. Where a summons was enlarged sine die by the consent of counsel and nothing further was done in the suit for more than a year : — Held, that a term's notice of the plaintiff's intention to proceed was necessary, before he could make any motion in the cause. Bank of Montreal v. Foulds et al., 8 P. R. 182.— Dalton, Q. C. Issuing a side-bar rule to discontinue the action is not a proceeding within the meaning of the rule which requires a term's notice of plaintiff's intention to proceed, where no proceeding has been taken in the cause for a year. S. C, lb, 236.— Osier. VII. Setting Aside or Stayino Proceedings 1. Delay in Moving. Defendant precluded both by delay and accept- ance of service of the writ from moving to set aside proceedings. See Regina v. Stewart, 8 P. R. 297, p. 2.— Osier. 2. Staying Proceedings on Equitable Grounds. See Bates et al. v. Mackey, 1 0. R. 34. 3. Other Cases. A summons to dismiss an action for breach of an order to examine, generally implies a stay of proceedings ; but where the judge who granted the summons struck out the part relating to a stay, and the summons was afterwards enlarged without any mention of a stay, a notice of trial served while the summons was pending, was held to be regular. Merchants Bank v. Pierson, 8 P. R. 129.— Dalton, Q. 0. After issue joined one of two plaintiffs ga^e to the defendant a release under seal of all actions and demands. The defendant thereupon moved to stay all proceedings in the suit : — Held, that the defendant should plead the release, and that he was not entitled to a stay of proceedings, and the remaining plaintiff was allowed to strike out the name of the other plaintiff. McAlpine et al. V. Carling, 8 P. R. 171.— Osier. (Be/ore the Judicature Act, 1881.) PRACTICE IN EQUITY. I. Bills. 1. Dismissing Jor want of Prosecution. In a suit to set aside a conveyance of the equity of redemption in certain lands as fraudu- lent as against creditors, one sitting of the court having been lost, a defendant, the grantee of the equity of redemption, moved to dismiss the hill for want of prosecution. More than two weeks before the sittings commenced, the plaintiff's solicitors were notified to file a replication and proceed to a hearing, but did not do so. The excuses offered by the plaintiff were, that the €37 PRACTICE. 638 -defendant was a material witness, and was ab- sent prior to the hearing, and that the property had been sold under a power of sale contained in ■one of the mortgages, and little or no surplus re- mained after paying the mortgages. It appeared that no effort had been made to find the defyn- dant in order to subpoena him as a witness at the hearing, and that the sale of the land did not "take place until a month after the sittings at which the cause might have been heard : — Held, ■that the delay was not excused, and the bill should be dismissed : — Held also, that the fail- ure of the defendant to comply with an order to produce did not, under the circumstances of the ■case, deprive him of the right to move to dis- miss. Elliott V. Gardner, 8P.R. 409. — Stephens, Referee. — Proudf oot. Semble, that a plaintiff cannot, in answer to ^ motion to dismiss, ask to have the bill dismissed without costs, but must make a substantive mo- tion for that purpose. Jb. 2. Undertaking to Speed. The plaintiff undertook, upon a motion to dis- miss his bill, to bring the cause down at the then next sittings at Guelph. Prom some correspon- dence it appeared that if the plaintiff had set the cause down for the then next Guelph sittings, a postponement would have been asked for and granted, on the ground of the attendance at the House of Commons of a member who was a de- fendant. The plaintiff offered to bi-iag the cause down to the then next sittings .'it Toronto, to which a conditional consent was given ; but the ■cause was not set down. The referee dismissed the bUl : — Held, on appeal, reversing the referee's decision, that under the circumstances, more fully set out in the case, the plaintiff was re- lieved from his undertaking to bring the cause down to Guelph, and that he was under no obli- gation to bring the cause down to Toronto ; and as no intentional delay was shewn on the part of the plaintiff, the bill was restored. Petrie v. (htdph Lumber Co., 9 P. R. 52.— Ferguson. II. New Heaking. A defendant knew precisely the question to be "tried at the hearing, but took no steps to adduce any evidence on his behalf, and a witness, whom he would have called, was called by the plain- tiff, and gave evidence which the defendant swore was different from what he had anticipated he would give : — Held that this was not such a case of surprise, as entitled the defendant to have the cause reopened, in order that there might be a new hearing , and a motion made for that purpose was refused with costs, although the defendant swore that the evidence given by the witness had taken him by surprise, and that the same was incorrect, and would be contra- dicted by the wife and son of the defendant. Sherriit v. Seattle, 27 Ohy. 492. III. Decree. 1. Amendment of. By the decree an assignment of a bond was declared to have been by way of security only ; and further, that the plaintiff was entitled to certain credits, and referred it to the master to take the accounts. In proceeding with the ac- counts the defendant was hampered by this de- claration in the decree, as the master felt bound by it, whereupon the defendant moved upon petition to amend the decree so as to make it conform to the judgment : Ferguson J., before whom the motion was heard, being of opinion that the judgment was directed solely to the fact that the bond was assigned as a security only, and that the view taken as to the credits was a ground for so holding, and was not a sub- stantive part of the judgment, and therefore that the declaration as to the credits was unauthor- ized, ordered the same to be struck out of the decree upon payment of costs of the appUcatiou and of all additional costs incurred or to be incur- red in the master's ofiioe, caused by the decree not having been properly drawn in the first in- stance. Livingston v. Wood, 29 Chy. 157. 2. Review. In applications to open up proceedings by way of review on the ground of newly discovered evidence, it is necessary for the party applying to establish, (1) that the evidence is such that if it had been brought forward at the proper time it might probably have changed the result ; (2) that at the time he might have so used it neither he nor his agents had knowledge of it : (3) that it could not with reasonable diligence have been discovered in time to have been so used ; and (4) the applicant must have used reasonable diligence after the discovery of the new evidence. Where, therefore, a railway company in the construction of their road took possession of and built their road across a plot of land of the plaintiff, who instituted proceedings to compel payment there- for, and under the decree a sum of $1,800 was found to be the value of such plot, which sum, together with interest and costs, was paid by the company in order to prevent the land being pur- chased by a rival company ; and three years afterwards they applied on petition to have a portion of such purchase money refunded, on the ground that another railway company, whose rights had been assigned to them, had previously paid a prior owner of the land for a portion thereof : The court [Ferguson, J.,] refused the relief asked with costs, on the ground, amongst others, that the company, had they exercised due diligence in the matter, might have become aware of such prior purchase and payment. Dumble v. Tlie Gobourg and Peterborough Ry. Go., 29 Ohy. 121. 3. Other Gases. The court will not assist in carrying on or perpetuating error, by enforcing an erroneous decree. Mitcliell v. Strathy, 28 Chy. 80. A decree had been made on consent, referring to the master the question whether or not the defendant had performed certain work for the plaintiff at a specified rate, who reported that he had not. On appeal, the court (Blake, V.C. ) considering that this was a question that should have been disposed of by the court, set aside the report and directed a trial to be had upon that issue, reserving the costs of the proceedings be- 639 PEACTICE. 640 fore the master and of the appeal: — Held, on further directions, that these costs having been incnrred in a proceeding consented to under a common mistake of parties as to the proper tri- hunal to decide the question, each party should pay his own costs. Valby v. Bell, 29 Chy. 336. A decree which had been made against several defendants, one of them A., being administrator ad litem of a defendant who had died before answer, was vscated as to the defendant B. , and leave given him to file a supplemental answer •and have a new hearing of the cause. Subse- quently C. , who had, since the decree and before theapjjeal, leer appointed administrator in place of A., who died alter decree, applied for leave to file an answ er setting up defences which his pre- decessor had emitted. It was shewn that he had been apj ointed pro forma to represent the estate ; that no proceedings in appeal had been served upon him, and that no further relief was sought against the estate. The referee granted the leave asked : — Held, affirming the order of Proudioot, V. C. , that the vacation of the decree as against B. did not, under the circumstances, open up the decree as against the deceased defen- dant's estate, and that the referee had, therefore, no power to allow C. to iile a supplemental an- swer. Peterkin v. McFarlane et at, 6 A.E. 254. IV. Mastek. 1. Beference to and when Ordered. "Where a question is directly raised by the pleadings, and is distinctlj' presented to the court for its decision, rnd evidence has been given upon it in order to obtain the judgment of the court, it will not le ] ef erred to the master for his deci- sion. The Jnlernalional Bridge Co. v. The Canada Southern R. W. Co., and The Canada Southern a. W. Co. V. T/ie International Bridge Co., 7 A.R. 226 ; see -S*. C. 8 App. Cas. 723. See Williamson v. Swing, 27 Chy. 596, p. 127. 2. Changing Sejerence. Where the business of the partnership in ques- tion in this suit had been carried on in the county of Simcoe, and the parties resided there, and it was found the master in ordinary could not pro- ceed with the reference directed for two months from the date of this application, the reference was changed to Barrie. Aitken v. WilsoTi, 9 P E. 75.— Boyd. 3. Proceedings in Master's Office. In proceeding upon a reference under a decree, the master cannot under the General Orders 244 245, order a person to be made a party to the suit ag.'inst whom any relief is sought, and where in proceeding under a decree for the ad- ministration of a testator's estate, the master directed one D., who had been in partnership with the testator up to the time of his death, to be made a party, and requiring him with the executors to bring in under oath an account of the partnership dealings, against which D. ap- pealed, the court (Proudfoot, V. C.):— Held the object of makicg D. a party was for the purpose either of relief or discovery, and in either view the plaintifl' could not obtain it in this mode of proceeding, as D., so far as discovery was con- cerned, could only be regarded as a wituesB, Hopper V. Harrison, 28 Chy. 22. 4. Peport. (a) Confirming. A report requiring confirmation does not be- come absolute until thirty days irom the making and fourteen days fiomthe fihng thereof hav& elapsed. Pe Eaton, Byers v. Woodburn, 8 P E 289.— Blake. Where a decree ordered payment forthwith after the making of a report, an execution is- sued before the report had been filed, was set aside with costs, fcemble, the report did not re- quire confiimation, under the wording of the de- cree. JellettY. Anderson, 8 P.P. 387. — Stephtos Pe/eree. (b) Other Cases. A master's report made during long vacation in contravention of G. O. 425, is as against a, defendant having no notice of the proceedings, on which the report is founded, entirely null and void. Puller v. McLean, 8 P. E. 549.— Boyd. After the closing of his report, a master should not certify as to any matters before him in the course of the inquiry upon which he has reported, unless called upon to do so by the court. After report any ceititicate, unless caDed for by the court, is ii regular and improper. Posebatch v. Parry, 27 Chy. 193. The master, at the request of the defendant, reported specially in his favour as to many mat- ters not particularly referred to him, but which formed the subject of charges of fraud made in the bill of complaint : — Held, that the master had power to report specially any matters he deemed proper for the information of the court, and that it was his duty to so report any matter bearing on the question of costs. Mayes v. Baves„ 29 Chy. 90. ■ 5. Appeal from. Where a master in his discretion fixes the commission to be allowed to parties under G.O. 643, and settles the disbursements in the suit, there is an appeal to a judge in chambers from his finding. The disbursements should still b& submitted to the master in ordinary for revision,, like other bills of costs. Campbell v. Campbell,, 8 P. R. 159.— Blake. A report must be filed before a notice of appeal from it is given. Semble, that seven clear days' notice of appeal is necessary. Hayes v. Hayes, 8 P. R. 546.— Blake. On a question of rent, there was a conflict of evidence as to the amount thereof. On appeal from the Master's finding :— Held, that the wit- nesses having been examined before the master, ' he was a better judge than the court as to the weight to be given to the testimony of the res- ' 641 PEAOTICE. 642 pective witnesses ; and the question as to the proper sum to be allowed for rent, was one with which the master was quite as competent to deal, aa the court could be. Little v. Bnmker, 28 Chv. 191. ^ Held, that as the matter in question in this case had been referred to the master by the de- cree, which was for specific performance, it should have been disposed of in his office under G. 0. 226. Stammers v. 0' Donohoe, 29 Chy. 64. The defendant was the assignee of a policy of assurance on his brother's life, in trust to pay himself certain moneys and expend the residue in the support and maintenance of the assured's family, and having made further advances on the advice of his brother, who was a practising bar- rister, he took a second assignment of the policy absolute in form. On the death of the assured the defendant, asserting a right to obtain pay- ment of the policy, went to the head office of the company in the United States, in order to hasten the payment, pending a dispute with the plaintiffs^ — the family of the assured — aa to his lights. In taking the accounts between the parties, the master found that the defendant acted bona fide in so doing and allowed his ex- penses, although the company, at the instance of the plaintiffs, refused to pay him, and sent the proceeds of the policy to their solicitors in To- ronto, to be paid over to the party entitled : — Held, on appeal from the master (affirming his ruling), that as the defendant was under either assignment entitled to possession of the fund — either as trustee or individually — and as the master under all the circumstances, thought fit to allow such expenses, and it did not appear clear to the court that such allowance was wrong, the item should be allowed : — Held also, that the master had properly allowed to the defendant in his accounts a fee of |10 paid by him to counsel for advice as to his action in respect of the two Hayes v. Hayes, 29 Chy. 90. On an appeal from the master on a question of the weight of evidence, the court, though not satisfied as to what was the actual truth of the case, could not say that the master was wrong, and therefore dismissed the appeal, with costs ; liberty being given to the appellant, however, to examine the witnesses again at the next sit- tings before the learned judge who heard the appeal so as to enable him to dispose of the mat- ter with greater satisfaction to himself, in which case costs would be reserved. McArthur v. PriUie, 29 Chy. 500. V. JCDGB OB EeFEEEB IN CHAMBERS. 1. Jurisdiction. A motion made under R. S. O. c. 49, s. 9, to appoint an administrator ad litem of the estate of a deceased person, may be made before the referee, as that section merely extends a juris- diction already possessed by him under G. O. 56. Colhery. Swayzie, 8 P. E. 42.— Stephens, Jte/eree. — Spragge. The referee has no jurisdiction to strike out interrogatories for impertinence. Williams v. Corby, 8 P. R. 83. — Stephens, ^e/eree.— Proud- foot. 41 The referee in chambers has no jurisdiction to make an order for payment into court by an executor or administrator of amounts admitted by him to be in his hands. Re Curry — Wright V. Curry, CwrryY. Curry, 8P.R. 340. —Stephens, Referee. See In re Selhy, 8 P. E. 342, p. 589 ; Peterhin V. McFarlane et al, 6 A. E. 254, p. 639. 2. Appeal from. Where a solicitor's clerk, through forgetful- neas, neglected to set down an appeal aa required by G. O. 642, the referee refused to extend the time for appealing ; and — on appeal, Spragge, C, upheld his ruling. Dunnard v. McLeod, 8 P. E. 343. VI. Sebvicb Gbneeally. 1. Of Bills. (a) Absconding Defendants. Where a bill had been filed for foreclosure, and the defendant, the official assignee of the mortgagor, absconded before the bill was served an order was granted allowing substitutional service on one of the two inspectors of the insol- vent's estate. London Loan and Agency Co., v. Thompson, 8 P. E. 91. — Stephens, Referee. — Proudfoot. Where the defendant in a suit had absconded to the United States before the filing of the bill, and two months after the filing of the bill an assignee in insolvency was appointed by the creditors of the defendant, and the assignee was served with the bill, but not within the time limited by the General Orders, the referee in chambers made an order allowing the service as good, though made fourteen months after the bill was filed: — Held, on appeal, affirming the referee's order, that the defendant having ab- sconded was a sufficient reason for not proceeding with greater diligence. Ooderich v. Brodie, 8 P. E. 486.— Blake. (b) Service Abroad. See Exchange Bank v. Springer, 29 Chy. 270, p. 240. (c) By Publication. Where a defendant is served by publication under G. 0. 100, in order that a praecipe decree may be obtained, the notice should contain the special endorsement in schedule G. to Order 436, otherwise the cause must be set down to be heard pro confesso. Pherrill v. Forbes, 8 P. E. 408.— Proudfoot. 2. Acceptance of Service. Notice of examination and hearing was served at a few minutes past four, on the last day for 643 PRINCIPAL AND AGENT. 644 giving notice, on solicitors of one (iefendant, who admitted service, but on the same day, discover- ing that the notice had been served too late, they wrote to the plaintiff's solicitors repudiating their admission, and saying that they would move to set aside the notice. On a motion it was shewn that there was no other service or notice than as above mentioned, and the application was there- upon refused : Soott v. Burnham, 3 Chy. Chamb. 402, followed. Semble, that the acceptance of service would not be binding, having been so soon repudiated. Wriyht v. Way, 8 P. R. 328.— Ste- phens, Se/eree. — Blake. VII. Staying Proceedings. Where a decree had been made declaring the plaintiff to be entitled to insurance moneys, and directing a reference to ascertain the amount and payment forthwith after the making of the re- port, an order staying proceedings in the master's office was refused pending an appeal from the decree. Butle?- v. Standard Fire Ins. Oo., 8 P.R. 41. — Stephens, Referee. VIII. Abatement or Suit. The suit became abated between the date of the report and the tims fixed by it for payment by subsequent incumbrancers. On an applica- tion for a fluil order for foreclosure it was refused and a new day was appointed, allowing the in- cumbrancers anadditioualtimefor payment equal to the time the suit remained abated. Biggar v. Way, 8 P. &. 158.— Blake. PRECEDENCE. Of Counsel. — See Lenoir v. Ritchie, 3 S. C. R. 675, p. 71. PREMIUM NOTES. See Insurance. PRESCRIPTION. ^ee Limitation of Actions and Suits. PRESUMPTIONS. See Evidence. PRINCIPAL AND AGENT. I. Appointment op Agent. 1. By Corporations — See Corpokations. II. Piioor OP Agency, 644. III. Ratipication op Agency, 645. IV. Agent Taking Commission from Oppo- site Parties, 645. V. Power and Authority of Agent. 1. Officers of the Grown, 646. 2. Agents oj Corporations, 646. 3. As to Promissory Notes, 647. 4. As to Sale of Goods, 647. 5. Other Gases, 648. VI. Rights of Agent against Principal, 648. VII. Liability of Agent to Principal. 1. Agent Purchasing Property of Princi- pal, 648. 2. For Investment of Money, 649. VIII. LiABiLiTT OF Principal to Third Persons. 1. For Fraud of Agent, 649. 2. Other Gases, 650. IX. Miscellaneous Cases, 651. X. Particular'' Agents — See The Sev- eral Titles. II. Proof of Agency. One C. entered into agreements with several parties to carry freights for them at certain named prices to be paid to the defendant, not mentioning any particular vessels in which the same were to be carried and then agreed with the defendant as part owner and master of ves- sels in which the plaintiffs had an interest, at rates considerably below the sums agreed upon. The defendant and C. both swore that the ar- rangement had not been made by 0. as agent of the defendant, but for his own benefit: — Held, that the fact of the defendant having rendered an account in his own name and also sued for a portion of the freight, though aided by the other circumstances mentioned in the judgment, was not sufficient to countervail the positive denials of the defendants and 0. , that the contracts had not been made in behalf of and as agent for the defendant, freight being, prima facie, payable to the master of a vessel, and the cargo need not be delivered by him until the freight thereof is paid, although in any other transaction such conduct would have been strong evidence that the defendant was the principal contractor. Merchants Bank v. Graham, 27 Ohy. 524 Held, that, if a person acts notoriously as the officer of a corporation, and is recognized by it as such officer, a regular appointment will be presumed, and his acts wiU bind the corporation, although no written proof is or can be, adduced of his appointment. Scfoool Trustees of the Town- ship of Hamilton v. Neil, 28 Ohy. 408. In an action for the nondelivery of certain groceries sold : — Held, that upon the evidence set out in the report of this case, K,, by whom the sale was made, was shewn to be the defend- dants' agent authorized to sell on their behalf. Ochley et al. v. Matsson et al., 6 A. R. 108. The plaintiffs entered into a contract with one F. to fence an extension of the defendants' rail- way. V. was a shareholder of the defendants' company, and general manager of that part of the road which was in operation, and was con • U5 PRINCIPAL AND AGENT. 646 liractor for tlie construction of the extension. The only writing between the parties was the following informal memorandum, prepared by ■one of the plaintiflFa : — " Res'fiibw, 6th January, 1876, Memorandum of fencing between Muskrat river east to Renfrew ; T. & W". Murray to con- struct same next spring, forCO.R.R. Co., to be equal to 5 boards 6 inches wide — posts 7 to 8 feet apart — for $1.25 per rod. Company to fur- nish cars to distribute lumber. T. & W. MtrRRAY, A. B. Foster." During the progress of the work F. drew drafts on the company, in favour of the plaintiffs , which were accepted and paid by them. They also allowed the plaintiffs to retain various sums due by them to the company as freight, charging the amounts at stated periods to F. and releasing the plaintiffs, who were in turn charged with the amounts by F. The jury were asked whether the plaintiffs, when they made the agree- ment, supposed that they were contracting with the company, and were told that, though F. was not the agent of the company to make the con- tract, yet if he professed to be acting for the •company and working in the company's name, it would be binding on the company, unless they repudiated it ; and they were asked whether the company had adopted the contract, by paying money or allowing freight : — Held, per Spragge, C J. 0., and Burton, J. A., that there was mis- ■direction, as it was immaterial what the plain- tiffs understood if F. had not authority in fact to make the contract ; and that there could be no ratification or adoption of the contract by the company, vinless they were, at the time, aware ■that it had been entered into by F. professedly as the agent of the company ; and Held, also, that the payments, whether by money or the allowance of freight, were not any evidence of adoption in the absence of such previous know- ledge : — Held, also, that there was no evidence to go to the jury that F. so acted, or professed -to act, and that the plaintiffs should therefore have been nonsuited. Osier, J., dissented, on the ground that there was no misdirection, and that the appellants had failed to convince him that the unanimous judgment of the court below was wrong. Morrison, J. A., agreed with Osier, J. The court being thus equally divided, the appeal was dismissed, and the judgment of the Queen's Bench stood affirmed. Murray et al. v. Oanada Central R. W. Co., 7 A.R. 646. Affirm- ed in Supreme Court, 8 S. C. R. 313. Special leave to appeal to Her Majestyin oouncU refused. See 8 App. Gas. 574, p. 659. III. Ratification of Agenct. See Vanderlip v. Smyth, 32 0. P. 60. IV. Agent Taking Commission feom Opposite Paktibs. The plaintiff, a land agent, was employed by defendants to sell certain land at a stipulated price, and in the course of his employment, and after negotiating with an intending purchaser, an exchange was effected by certain of his lands being taken in part satisfaction of the defend- ants' price, and the plaintiff demanded commis- sion from the purchaser for effecting such ex- change, which the purchaser, without acknow- ledging the plaintiff's right to make it, acceded to, and paid a sum of money to the plaintiff. The plaintiff said that such sum was paid not as commission, but as a gratuity : — 'Held, that such a sum, whether received as a commission strictly so called, or as a gratuity, was a profit directly made in the course of and in connection with the plaintiff's employment, and would, there- fore belong to his employers, the defendants ; but as it appeared that the defendants were fuUy aware of the plaintiff having received such sum, and made no objection to his retaining it, but with full knowledge thereof negotiated with him for a settlement of his remuneration, they could not afterwards, in an action by the plain- tiff for such remuneration, set off such sum. Oalverwell v. Campion et al, 31 C. P. 342. v. Power and AuTHORiTr of Agent. 1 . Officers of the Crown. Per Ritchie, C. J. ; — Held that neither the engineer nor the clerk of the works nor any subordinate officer in charge of any of the works of the Dominion of Canada, have any power or authority express or implied under the law to bind the crown to any contract or expenditure not specially authorized by th.e express terms of contract duly entered into between the Crown and the contractor according to law, and then only in the specific manner provided for by the express terms of the contract. O'Brien v. The Queen, 4 S. C. R. 529. 2. Agents of Corporations. The plaintiffs were a company incorporated under C. S. C. c. 63, and 24 Vict. c. 19, for the manufacture and sale of cheese, &c. On the 10th of August, 1878, a written agreement was entered into between one C, the plaintiffs' secretary and salesman, and one M. , on behalf, as was stated, of the plaintiffs and defendants respectively, and which was signed by C. and M. , for the sale of the whole of the plaintiffs' July cheese, as also of their August, September, and October cheese, at prices named : — Held, that upon the evidence set out in the case, C. , in entering into the con- tract for the plaintiffs, was acting within the scope cf his employment and duties ; and that the defendants could not deny M. 's authority to act for them, for they had adopted and ratified the agreement. The Albert Cheese Co. v. Leem- ingetal, 31 0. P. 272. D. on the suggestion of E. and the bank of O. that he should purchase certain lumber held by the bank as security for advances made to R. required a guarantee from the bank that the lumber should be satisfactorily cuUeti, and any deficiency paid for by the bank. The directors of the bank thereupon resolved to submit the lumber to a culler, and if he reported satisfac- torily, to give the guarantee. Their local agent, however, with the approbation of their head man- nager, without previously employing a culler to report, gave a guarantee in writing, but not under seal, "on behalf of the bank " that the lumber should be satisfactorily culled previously to shipment : — Held, that the bank was liable on the guarantee for any deficiency resulting from unsatisfactory culling, for the plaintiffs were warranted in assuming that the agent giv- 64T PRINCIPAL AND AGENT. 648 ing t had the necessary authority, and uo seal -was required ; and if the bank wished to repudi- ate it, they should repay the money paid to them by D. for the lumber : — Held, that the above guarantee did not come within the des- eription of a guarantee for the act of third party, for the bank were selling under E. S. 0. c. 121, ■byjvirtue of being holders of a warehouse receipt. Dobell et al v. T/ie Ontario Bank et al., 3 O. R. Chy. D. 299. Reversed on appeal. 9 A. E. 484. See also "Railways and Railway Com- PAMiBS," II. 2., p. 673. See also VIII. p. 649. 3. As to Promissory Notes. Upon the insolvency of J. B., who carried on business under the name of B. & Co. , his wife pur- chased the estate from his assignee, and author- ized him by power of attorney to manage the same, and to make promissory notes in and about her said business. Being pressed for payment of notes which he had given for a debt due before his insolvency, he gave his creditor notes signed per pro. B. & Co. J. B. Subsequently he was sued on these notes, when he swore they were his wife's notes, and made with her authority, whereupon the holder sued the wife. In the action against her she swore that she had separ- ate estate and that she had purchased her hus- band's estate with it ; but, on the advice of her counsel, she declined to give any information concerning it. She swore that J. B. had no authority to give the notes in question, but it appeared that he frequently discussed his own a&irs with her, and he would not swear that he did not tell her that he had given these notes : — Held, affirming the judgment of the County Court, that notwithstanding the power of attor- ney, the real scope of J. B. 's agency could be ascertained from any admissible evidence, and that there was sufficient to justify the finding of the judge that J. B. had authority to sign the notes. Cooper et al. v. Blachlock, 5 A. R. 535. 4. As to Sale of Goods. The plaintiff sued the defendant^ a piano - maker, for breach of a warranty given by his salesman on the sale of a piano that the instru- ment was then sound and in good order : — Held, that the salesman had authority to give the war- ranty. McMullen v. Williams, 5 A. R. 518. The plaintiffs delivered to one R. some cultiva- tors for the purpose of selling, as their agent, for cash or good notes. Three of these he exchanged with the defendant, who was aware of the fact of agency, for a buggy, which he sold and re- tained the proceeds. It was shewn that on a previous occasion R. had traded a cultivator with one M. for a horse, which he sold and gave the plaintiffs a forged note purporting to be that of the purchaser ; and on the same day he traded another cultivator with one D. , for a watch and $7, but for this also it was said he returned a note to the plaintiffs. It was not shown that defendant knew of either transaction, and the plaintiffs had prosecuted R. for the forgery. In am action of replevin the jury gave a verdict in favour of the defendant, but the county judge in term set it aside, and directed judgment to be en- tered for the plaintiffs, which on appeal was affirmed, with costs. Stewart et al. v. Rounds, 7 A. R. 515. See Ockley et al. v. Masson, 6 A. R. 108, p. 644> 5. OtJier Cases. An agent instructed to receive payment for his principal, cannot aa a general rule accept " anything but money. See Frazer v. Core Dis- trict Mutual Fire Ins. Co., 2 0. R. 416, p. 353. See Nasmith v. Manning, 5 A. R. 126, p. 134. VI. Rights of Agent against Peincipal. In consideration that the plaintiff would act as agent for the defendant in the purchase and consignment of furs to the defendant, and as- sume one-third of the losses to the extent of $3, 000, all losses above that amount to be borne by the defendant, he agreed to pay plaintiff' one-half the net profits of each year's transac- tions. The plaintiff impugned the bona fides o£ a settlement which he had been induced to make with the defendant, acting through an agent, and the court being satisfied that the settlement had been secured by the fraudulent misrepre- sentations of such agent, — Held, the plaintiff en- titled to an account of the transactions and an inspection of the books of the defendant, not- withstanding the provisions of the statute 36 Vict. c. 25, s. 1 (R. S. 0. c. 133, s. 3). Rogers V. Ullmann, 27 Chy. 137. Liability of principals to brokers for moneys; advanced for the purpose of buying and selhng grain on margin. See Rice et al. v. Ounn et al.„ 4 0. R. 679, p. 258. VII. Liability of Agent to Pkincipal, 1. Agent Purchasing Property of Principal The rule of equity which prevents an agent acquiring a benefit for himself in any deahngs with the estate of the agency, acted upon where an agent had been employed to sell or exchange certain lands of the principal, which, however, the agent had been unable to effect, and the pro- perty was shortly after offered for sale by auction under a power of sale in a mortgage, when the agent bid, and became the purchaser. The court (Spragge, C.,) in a suit impeaching the purchase, declared the agent a trustee for the principal ; but as the plaintiff made several unfounded charges of fraud and other miscon- duct, the relief asked was given, without costs. Thompson v. Holman, 28 Chy. 35. The defendant |had for some years acted for the plaintiff in looking after his lands, and pay- ing the taxes ; but in 1874, they had some diffi- culty, and from that time the plaintiff ceased to correspond with the defendant, and employed one H. to pay the taxes, and look after the pro- perty. H., without any instructions from the plaintiff, on one occasion wrote to the defendant requesting him to ascertain the amount of the taxes, and to draw on him therefor, with wliich request the defendant camplied, but nothing further occurred to change the relative position of the parties belire the sale : — Held, per Bur- €49 PfllNCIPAL AND AGENT. 650 ton, J. A., that under these circumstances the confidential relations which had previously ex- isted must be held to have ceased, and that the defendant was not precluded from purchasing the plaintiff 's land at a sale for taxes. Per Proudfoot, J., that what took place could not have the effect of determining the fiduciary re- lationship between them, and therefore the defendant could not purchase the plaintiff's land to his prejudice. Fleming v. McNabh, 8 A. R. 656. 2. For Investment of Money. Held, that it is a breach of duty in a person ■entrusted with money to invest on real estate to invest on the security of a second mortgage, unless with the sanction of the lender, which such person must prove, and which the evidence in this case failed to establish. The value of the property herein was about $1,000 ; the first mortgage being for $325, and the second for :$400, taken to the plaintiff. Tlie borrower was a respectable mechanic in receipt of good wages, occupying the property himself, which was situ- ated in the place where all the parties resided and carried on business. The learned judge at the trial found that the defendant was not guilty of negligence so far as the value was concerned, and the court refused to interfere. Remarks as to the proper form of declaration in such case, where the defendant was not paid by the lender but by the borrower. Upon the conflicting evi- ■dence, set out in the case, the learned judge at the trial found that the plaintiff had not been informed of the first mortgage, under which the property was sold, leaving only about SSO appli- cable to the second mortgage. The court refused to set aside this finding, and sustained the ver- -dict for the plaintiff. Carter v. Hatch, 31 0. P. 593. VIII. LiABiLiTT OF Principal to Third Persons. 1. For Fraud of Agent. On the 22nd August, 1879, the defendants' account at the Bank of Montreal, where the •corporation account was kept, was overdrawn |l, 157.64. A resolution of the council was "thereupon passed, authorizing the mayor to bor- row from some banking institution a sum not ■exceeding |2,000, to meet the current liabilities until the taxes were available, and authorizing him and the town clerk to sign the necessary documents therefor, and to affix the corporation seal On 2nd September, a promissory note, in accordance with this resolution, was made, and was discounted at the Bank of Montreal, and the proceeds placed to the defendants' credit. On 5th September, a similar note was made and discounted at the plaintiffs' bank, where the de- fendants had kept an account, but which was virtually closed, though there was a small bal- ance still remaining to their credit. The last note was in fact fraudulently procured to be made and discounted by one T., who was the defendants' clerk and treasurer, and who was in default, to cover up his defalcations, but of this the plaintiffs knew nothing. T., as such treasu- rer, then, chequed out of plaintiffs' bank 1 1,656 ■of this amount, which he deposited to the defen- dants' credit at the Bank of Montreal, and then paid it out on corporation cheques for authorized corporation purposes : — Held, in an action for money had and received, that the plaintiffs were entitled to recover the $1,656, for that T. , though acting fraudulently, had acted in a matter within the scope of his authority, and the defendants had received the benefit of the fraud. Mohons^ Bank V. Corporation of the Town of Brockmlle, 31 0. P. 174. The plaintiff, who applied to the defendants, through one W., their agent, for a loan, request- ed them by his application to send the money "by cheque, addressed to W." In accordance with their custom to make their cheques paya- ble to their agent and the borrower to insure the receipt of the money by the latter, they sent W. a cheque, payable to the order of himself and the plaintiff. W. obtained the plaintiff's endorsement to the cheque, drew the money, and absconded. The plaintiff swore that he did not know that the paper he signed was a cheque, and there was no evidence to shew that he had dealt with W. in any other character than as the defendants' agent, through whose hands he expected to re- ceive the money : — Held, affirming the decree of Proudfoot, V. 0. , restraining proceedings on the mortgage which the plaintiff had given to the defendants as security for the loan, and direct- ing a, reconveyance, that it was W.'s duty to endorse the cheque to the plaintiff or to see that he received the money, and that the defendants, who had put it in his power to commit the fraud, must bear the loss. Finn v. Dominion Savings and Investment Society, 6 A. E. 20. C, freight agent of respondents at Chatham, and a partner in the firm of B. & Co,, caused printed receipts or shipping notes in the form commonly used by the railway company to be signed by liis name as the company's agent, in favour of B. & Go. , for flour which had never in fact been delivered to tlie railway company. The receipts acknowledged that the compiny had received from B. & Co. the flour addressed to the appellants, and ■were attached to drafts drawn by B. & Co., and accepted by appellants. 0. received the proceeds of the drafts and absconded. In an action to recover the amount of the drafts : — Held (Fournier and Henry, JJ., dissenting), that the act of 0. in issuing a false and fraudu- lent receipt for goods never delivered to the company, was not an act done within the scope of his authority as the company's agent, and the latter were therefore not liable. Erb v. The Oreai Western Railway Go. of Canada, 5 S. C. R. 179 ; 3 A. R. 446 ; 42 Q. B. 40 ; Oliver v. Great Western R. W. Co., 28 0. P. 143. 2. Other Cases. The plaintiff, who had purchased a special ex cursion ticket from Toronto to Niagara and re- turn on the same day by a steamer of the defen- dants, and which had been taken up by the purser on that day, claimed the right to return by it on the following day under an alleged agreement with the purser, which the latter denied. On the purser demanding the plaintiff's fare, and the latter refused to pay it, the porter by the purser's direction, laid hold of a vaUse which the plaintiff was carrying and attempted to take it and hold it for the fare, whereupon i "^ 651 PEINCIPAL AND SURETY. 65» scuflBe ensued, and tie plaintiff was injured : — Held, Osier, J., dissenting, that the purser was mot acting within the scope of his duty in thus forcibly attempting to take possession of the valise, and the defendants were not liable for his act. It appeared that the purser had been sum- moned by the plaintiff before a magistrate for the assault, and a fine imposed, which he paid. Per Wilson, J. This under 32-33 Vict. c. 20, s. 45, Dom. , though a release to the purser, did not constitute any bar to the present action against the company. Held, also, that the alleged im- prisonment of the plaintiff' by the purser in his office for non-payment of his fare, not being an act which the defendants themselves could legally have done, the defendants were not liable for it. Emerson \. The Niagara Navigation Co., 20. K., 0. P. D. 528. Action against a bank to recover amount paid on forged endorsements. Negligence of agent. — Estoppel. See Agricultural Savings and Loan Association v. Federal Bank, 6 A. R. 192, p. 68. Held, that a petition of right does not lie to recover compensation from the Crown for dama- ges occasioned by the negligence of its servants to the property of an individual using a public work. The Queen v. McFarlane et al., 7 S.C.E. 216. Liability of a municipal corporation for the act of its servants. — "Respondeat superior." See MdSorley v. The Mayor, &c. , of the City of St. John et al, 6 S. 0. R. 531. IX. Miscellaneous Cases. The contract in this case having been made between appellant and respondents only, and being a contract of agency apart from any ques- tion of ownership, the action was properly brought by appellant in his own name. Weldon v. Vaughan et al., 5 S. C. R. 35. In torts the principle of agency does not apply; each wrong doer is a principal. The Ontario Indus- trial Loan and Investment Co. v. Lindsey et al., 4 O. R., Chy. D. 473. See Corby et al. v. Williams, 7 S. C. E. 470 ; 5 A. R. 626, p. 112. PRINCIPAL AND SURETY. I. Contract oi' Suretyship. 1. Generally, 652. 2. Bills and Notes — See Bills oe Ex- change AND PrOMISSOBY NoTES. 3. Guarantees — See Guarantee and Indemnity. n. Liability or Surety, 652. in. Discharge and Release op Surety. 1. Course of Dealing, 652. 2. Giving Time to Principal, 654. IV. Eights oe Surety. 1. Assignment of Securities, 654. V. Contribution AmongJCo-Sureties, 655.. VI. Proceedings Against Surety. 1. Pleading, 656. 2. Other Cases, 656. Vn. Miscellaneous Cases, 657. VIII. Sureties or Particular Persons. 1. (7oHe<; 497. See McGregor v. McNeil, 32 C. P. 538, p. 758. II. Foe Timber. The defendant's timber limits adjoined those of B. & C. , but from uncertainty in description in their respective licenses, the division fine was not defined. The defendant replevied 216- pieces of timber cut within a line run under in- structions of the crown timber agent, as the boundary of the defendant's limits, but on account of the infirmity iii his license, he failed in the action as to 175 pieces, for a return of which B. & C. were entitled to judgment. The- latter procured an assignment of the replevin bond to themselves, and assigned it to the plain- tiffs who brought this action thereon. The court was of opinion that the timber in question was cut upon lauds intended by the crown to be within the limits of thedefeudant's license though B. & C. had some grounds for asserting title thereto : — Held, that there having been a breach of the condition of the bond, B. & C. became en- titled to recover such damages as they had sus- 705 EIGHT OF WAY, 706 tained by replevin proceedings ; that the bond, i after it was assigned by the sheriff to B. & C, was a debt and chose in action assignable pur- suant to the statute ; and that the plaintiff having the beneficial interest therein by assign- ment was entitled to recover ; but it being a case for the equitable interference of the court, it was directed that upon payment by the de- fendant of the cost incurred by B. & C. in cut- ting and transporting the timber up to time it was replevied, less a set-off found for the defendant in this action (the amount to be ascertained by a reference if the defendant should so elect), further proceedings should be stayed. Bates tt alM. Mackev, 1 0. E., Q. B. D. 34. L. et al. , claiming certain lands in the town- ship of Horton under a paper title, built a barn and camp in 1875, commenced and continued logging aU that winter and in subse,quent years, lu 1877 McL)., setting up a title under certain proceedings adopted at a meeting of the inhabi- tants of the township in 1847, held for the purpose of making provision for the poor, by which cer- tain commissioners were authorized to sell vacant lands, entered upon and cut on the lands in question some 500 trees, w hich he put on the ice outside and inside L. et al.'s boom, mixing them with some 900 logs already in said boom, and cut by L. et al., in such a way that they could not be distinguished. McD. then claimed the whole as his own, and resisted L. et al. 's attempt to remove them. In an action of replevin brought by L. et al. for 1,440 logs cut on said lands : — Held, that L. et al. 's possession of the lands in question was sufficient to entitle them to recover in the present action against Mel). , who was a wrong- doer, all the logs cut on the lands in question. Per Strong, J. When one party wrongfully in- termingles his logs with those of another, all the party whose logs are intermingled can require is that he should be permitted to take from the whole an equivalent in number and quality for those which he originally possessed. McDonald et al. V. Lane, 7 S. 0. K. 462. See McGregors. McNeil, 32 C. P. 538, p. 758. III. Pleading and Peactice. In an action of replevin the sheriff replevied part of the goods, and certified in his return to the writ that the rsmainder had been eloigned to places unknown before the writ came into his hands. The plaintiff declared in two counts. 1. Jor that the defendant unjustly detained the goods of the plaintiff, specifying the goods, re- plevied, until, &c. 2. For that the defendant unjustly detained and still detains, against sure- ties and pledges, the goods of the plaintiff, specifying the goods eloigned : — field, under R. S. 0. c. 53, s. 24, that the second count was maintainable ; that the two counts were pro- perly joined, and that the declaration was not open to objection. Thurston v. Breard, 8 P. Pv. 10.— Hagarty. The plaintiff issued a writ of replevin direct- ing the sheriff to replevy '"two hundred and thirty sheep and lambs," unjustly detained by the defendant. On the previous day defendant had sold the property to one Gill, in whose pos- session it was when the seizure was made : — Held, that the above description was not sufifi- 45 cient, and that the articles could not be seized under the writ wliile they were in the possession of a party not named therein. T'laintiff was allowed to amend the description and substitute or add Gill as a defendant. Hooriaan v. Dris- coll, 8 P. E. 184.— Dalton, Q- 0. Actions of replevin are not within the general provisions of Orders 1 and 2, and the practice and pleadings therein are within the exception of Eule 4. A statement of claim filed in such an action was therefore set aside, and the plain- tiff allowed to declare according to the old prac- tice. C'am2jan v. Lucas, 9 P. E. 142. — Dalton, Master. In an action of replevin ten days' notice of trial must be given, instead of eight days, as under the old practice. Wallace v. Cowan, 9 P. E. 144. — Dalton, Master. See Bradley V. Clarke, 9 P. E. 410, p. 248. IV. Eeplevin Bond. In replevin a County Court Judge made an order when the writ was granted, directing the sheriff to seize the goods and hold them subject to requisition by the plaintiff to replevin to him. The sheriff seized the goods, but did not take a bond as directed by E. S. 0. c. 53, s. 11 :— Held, that this order did not do away with the neces- sity of taking a bond, and the seizure was set aside, with costs to be paid by the sheriff. Law- less V. Radford, 9 P. E. 33.— Dalton, Master. See Bates et al. v. Mackey, 1 0. E. 34, p. 705. EEPOET OF MASTEE. See Pkactiob. RESIDUAEY ESTATE. See Will. REVIEW. See Peactice. EEVISION (COURT OF.) See Assessment and Taxes. REVIVOR. See Scire Facias and Rbvivok. RIDEAU CANAL See Tylee v. The Queen, 7 S. 0. R. 651, p. 599, RIGHT OF WAY. See Way. 707 RULES AND ORDERS. 708 RIPARIAN PROPRIETORS. See Water and Water Couesbs. RIVERS. See Water and Water Courses. ROADS AN D ROAD COMPANIES. See Way. RULES AND ORDERS. I. Regul^ Gbnerales, 707. II. General Orders or the Court of Chancery, 707. III. Rules under the Judicature Act, 1S81, 708. IV. Supreme Court Rules, 711. V. In Court or Chambers — See Practice. I. Requl^ Genbhalbs. R. G., H. T., 26 Geo. III.— See QoTding v. Mackie, 8 P. R. 237, p. 51. R. G., 1 M. T., 14 Vict.— See Regina ex rel. McDonald v. Anderson, 8 P. R, 241, pp. 169, 482. R. G. 52.— See Young v. Hohson, 8 P. R. 253, p. 160. R. G. 135— See Sennv. HevAtt, 8'P. R. 70, pp. 246, 635. II. General Orders oe the Court oe Chancery. G. 0. 56.— See Collver v. Swayzie, 8 P. R. 42, pp. 275, 641. G. 0. 100.— See Pherrill v. Forbes, 8 P. R. 408, p. 642. G. 0. 120 (English)— See McGannon v. Clarke, 9 P. R. 555, pp. 162, 752. G. 0. 134. — See Hilderbrom v. McDonald, 8 P. R. 389, p. 249. G. 0. 138. — &ee Bank of British North America V. Eddy, 9 P. R. 396, p. 246 ; Moore v. Boyd, 8 P. R. 413, p. 247. G. 0. 144, — See Bank of British North America V. Eddy, 9 P. R. 396, p. 246. G. 0. 221.— See Darling v. Darling, 8 P. R. 391, p. 245. G. 0. 226.— See Stammers v. O'Donohoe, 29 Chy. 64, pp. 641, 722. G. 0. 244. — See Hopper v. Harrison, 28 Chy. 22, p. 640. G. 0. 245.— See Hopper t-. Harrison, 28 Chy. 22, p. 640. G. 0. 252.— .Be Eaton, 8 P. R. 289, p. 640. G. O. 276. —See Bvcke v. Murray, 9 P. B. 495, p. 633. G. 0. 312. —See Purdy v. Parks, 9 P. R. 424, p. 475. G. O. 425.— See Fuller v. McLean, 8 P. R. 549, pp. 640, 774. G. 0. 436.— See Cruso v. Close, 8 P. R. 33, p. 471 ; Plierrill v. Forbes, 8 P. R. 408, p. 642. G. 0. 438.— See Faulds v. Harper, 2 0. E. 405, pp. 470, 606. G. 0. 489.— See Peck v. Peek, 9 P. R. 299, p. 329. G. O. 608.— See Re Totten, 8 P. R. 385, p. 45 ; Cough V. Park, 8 P. R. 492, p. 45. G. 0. 610.— See Rew v. Anthony, 9 P. R. 545, p. 336. G. 0. 638. — See Hey wood v. Sivewrlght, 8 P. R. 79, p. 272 ; Re Draggon, 8 P. R. 330, p. 272 ; Re Allan — Pocock v. Allen, 9 P. R. 277, pp. 272, 273, 657 ; Sullivan v. Harty, 9 P. R. 500, p. 273. 6. 0. 639.— See Sullivan v. HaHy, 9 P. R. 500, p. 273. G. 0. 640.— See McKay v. McKay, 8 P. R- 334, p. 47 ; Brown v. Brown, 9 P. R. 245, p. 577 ; Re Amott — Chatterton v. Chatterton, 8 P. R. 39, p. 578 ; Macdonellv. McGillis, 8 P. R. 339, p. 578. G. 0. 641.— See Clark v. Clark, 8 P. R. 156, p. 578. G. 0. 642.— See Foster v. Morden, 9 P. R. 70, p. 37 ; Exchange Bank v. Newell et al., 9 P. R. 528, p. 47 ; Re Eaton, 8 P. R. 289, p. 640 ; Dmi- nard v. McLeod, 8 P. R. 343, p. 642. G. O. 643.— iJe McOoll, 8 P. R. 480, p. 273 ; See Pabtition III., p. 579. G. 0. 647. — See Klein v. Unkm Fire Ins. Go.t 3 0. R. 234, p. 608. G. 0. 648.— See Groom v. Darlington, 9 P. R. 298, p. 272. G. O. 649.— See Groom v. Darlington, 9 P. E. 298, p. 272. III. Rules under the Judicature Act, 18SI. Rules 1 to 10. — See Campan v. Lucas, 9 P. E. 142, p. 706. Rule 2. —See Beaty v. Bryce, 9 P. R. 320, p. 389 . Rule 3. — See Re Allan — Pocock v. Allan, 9 P. k 277, p. 272. Rule 4. — See Campan v. Lucas, 9 P. R. 1*2, p. 706 ; Robertson v. Mero, 9 P. R. 510, p. 630. Rule 5.— See Vetter v. Cowan, 46 Q. B. 435, p. 21. Rule 17. — See Klein v. Union Fire Ins. Co., 3 0. R. 234, p. 608. Rule 31. — See Mackelean v. Becket, 9 P. K. 289, p. 629. Rule 36.— See International Bridge. Co. v. The Canada Southern R. W. Co., 9 P. R. 250, p. 658. Rule 45.— See Martina. Lafferty, 9 P. E. 300, p. 630. 709 Rule 69. — See Crawford v. Crawford, 9 P. R. 178, p. 440. Rale 72. — See Macdonald et al. v. Crombie et al, 2 0. R. 243, p. 263. Rule 78. — See Chamberlain v. Armstrong, 9 P. R. 212, p. 472. See Judgment I. 2, p. 392. Rule 80.— See Boijd v. McNutt, 9 P. R 493, -p. 8 : Bank of Nova Scotia v. LaEoche, 9 P. R. .503, p. 154. See Judgment I. 3, p. 392. Rule 89. —See Faulds v. Harper, 2 O. R. 405, pp. 470, 606. Rule 90. — See Woodward et al. v. Shields, 32 -0. P. 282, p. 606. Rule 91. — See Head v. Bowman, 9 P. R. 12, p. 606. Rule 94.— See Harvey v. Grand Trunk R. W. ■Co., 7 A. R. 715, pp. 103, 603, 683. Rule 103.— See Scam v. Duchettet a?., 3 O. R. 370, pp. 3J5, 633 ; Kitching v. Hicki, 9 P. R. .518, p. 604 ; Head v. Bowman, 9 P. R. 12, p. 606. Rule 104.— See Scam v. Oiickett et at, 3 O. R. 370, pp. 305, 609. Rule 108. — See Corporation of the Toion of Dundasv. Oilmour et al, 2 O. R. 463, p. 605. Rule 112. — See Corporation of the Town of Dandas v. Gilmour et al., 2 0. R. 463, p. 605. Rule 127- — See Exchange Bank v. Stinson, 32 ■G. p. 158, pp. 108, 608. Rule 128. — Union Fire Ins. Co. v. Lyman, 46 •<3. B. 453, p. 607 ; Run-sell v. Canada Life Assur- Mace Co., 32 C. P. 256, p. 611. Rule 131.— See Barritt v. Murdoch, 9 P. R. 191, p. 392. Rule 141. — See Burnett v. Union Mutual Fire Ins. Co., 32 0. P. 134, p. 368. Rule 144. — See Attorney General v. Midland R. W. Co., 3 0. R. 511, pp. 610, 672. Rule 158.— See Clarke v. McEwing, 9 P. R. 281, p. 607. Rule 189. — See Attorney General v. Midland R. W. Co., 3 0. R. 511, p. 610 ; McClenaghan T. Grey, 4 0. R. 329, p. 109. ,0] J! Rule 219.— See Davis v. Wickson, 9 P. R. 219, p. 24d. Rule 224.— See Bradley v. Clarke, 9 P. R. 410, p. 248. Rule 227. — See Maitland v. Globe Printing Co., S P. R. 370, p. 248. Rule 254.— See Aitcheson v. Mann, 9 P. R. ■253, 473, p. 587 ; Goldsmith v. Walton, 9 P. R. 10, p. 587. Rule 255.— See McLean v. Thompson, 9 P. R. 553, p. 765 ; Chapman v. Smith, 32 C. P. 555, p. «33 ; Bucke. v. Murray, 9 P. R. 495, p. 633. Rule 259.— See Barker v. Furze, 9 P. R. 83, p. 765. Rule 264.— See Hopkins v. Smith, 9 P. R. 285, pp. 156, 631 ; Barker v. Furze, 9 P. R. 83, p. 765 . RULES AND ORDERS. 710 Rule 266.— See Barker v. Fu)-zr, 9 P. R. 83, p. 765. Rule 274.— See Trude v , Phoenix Ins. Co., 29 Ohy., 426, pp. 173, 220. Rule 285. — See Re Dunsford — Dunsford v- Dunaford, 9 P. R. 172, p. 247 ; Fisken v. Cham- berlain, 9 P. R. 283, p. 248. Rale 311. —See Cook v. Grant, 32 C. P. 511, p. 504. Rule 317.— See Trude v. Phoenix Ins. Co., 29 Ohy. 426, pp. 173, 220. Rule 321 — ^See Judgmext I. 4, p. 393. Rule 322.— See Henebery v. Turner, 2 0. E. 284, p. 251. See Judgment I. 5, p. 393. Rale 324.— See Lucas v. Fraser, 9 P. R. 319, pp. 164, 632 ; Kinloch v. Morton, 9 P. R. 33, p. 263 ; Francis v. Francis, 9 P. R. 209, p. 589 See Judgment I. 6, p. 393. Rule 330. — ^ee Bank of Ottawa Y. McLaughlin, 8 A. R. 543, p. 219. Rule 339. — The London & Canadian Loan and Agency Co. v. Merritt, 32 0. P. 375, p. 729. Rule 366.— See Meyers v. Kendrick, 9 P. R. 363, p. 35. Rule .370. — See Jackson v. Cassidy, 2 O. R. 521, p. 34. Rule 395.— See Tatjlor v. Bradford, 9 P. R. 350, p. 630. Rale 414. — ^See Hewson v. Macdonald, 32 O. P. 407, pp. 221, 632, 703 ; Loioson v. Canada Farmers Lis. Co., 9 P. R. 185, pp. 221, 631. Rule 420. —See Keefe v. Ward, 9 P. R. 220, pp. 38, 631; Christie, v. Conwxy et aZ., 9 P. R. 529, p. 390, 631. Rule 422.— See Coulson v. Spiers, 9 P. R. 491 . p. 170 ; Re Allan— Pocock v. Allan, 9 P. R. 277, p. 272 ; Coulson v. Spiers, 9 P. R. 491, p. 388. 'R-ale ili.— Re Cameron, Infants, 9 P. R. 77, p. 590. Rule 427. —See Loioson v. Canada Farmers Ins. Co., 9 P. R. 185, pp. 221, 631 ; Christie v. Conway et al, 9 P. R. 529, pp. 390, 631 ; Dayer V. Robertson, 9 P. R. 78, p. 632. Rule 431. — See Bank of Nova Scotia v. La Roche, et al., 9 P. R. 503, pp. 153, 393. Rule 438.— See Re Solicitors,- 9 P. R. 90, p. 47. Rule 443.— See Re Solicitors, 9 P. R. 90, p. 47. Rule 447. — See Morrison v. Taylor, 9 P. R. 390, p. 733. Rule 449. — See Exchange Bank v. Newell et al., 9 P. R. 528, p. 47. Rule 457. — See McLean v. Pinkerton, 7 A. R. 490, pp. 86, 759. Rule 461.— See Sievewright v. Leys, 9 P. R. 20 p. 631. Rule 468.— See Bovd v. McNutt, 9 P. R. 495, p. 8. Rule 482.— See Giles v. Morrow, 4 O. R. 649, p. 226. 711 SALE or GOODS. 712 Eule 483.— See Giles v. Morrow, 4 0. R. 649, p. 226. Eule 493. — See Bvi-vett v. Union Miitual Fire Ins. Co., 32 C. P. 134, p. 368; Mackekan v. .Bechei, 9 P. E 2i59, p. 629. Eule 494.— See Sawyer v. Short, 9 P. E. 85, 765. Eule 510. — See Hately v. Merchants' Despatch Co., 4 0. R. 723, p. 179. IV. SUPKEMB COUKT RuLES. Rule 6. — See Macdonald v. Abbott, 3 S. 0. R. 278, p. 749. Rule 56. —See North Ontario Election [Dom.) Wheeler v. Gibbs, 3 S. C. R. 374, p. 750. Eule 69. — See North Ontario Election {Dom.) Wheeler v. Gibbs, 3 S. C R. 374, p. 750. SALE OF GOODS. I. Statute oe Frauds, 711. II. Actions tor Nondelivery or Non- acceptance, 712. III. Contract or Sale, 713. IV. When Property parses to Buyer, 714. V. Acceptance and Receipt, 715. VI. Sale op Timber — See Timber. VII. By Particular Persons. 1. Agents — See Principal and Agent. 2. Corporations — See Corporations. VIII. Replevin on Sale op Goods — See Re- plevin. I. Statute op Frauds. Defendant sold to plaintifl's a quantity of tea, agreeing if there was any left on plaintiffs' hands at a certain date, he would take it back at the advanced price of ton cents per pound : — Held, an entire agreement consisting of one conditional contract of sale, and not of two contracts j aud that consequently the delivery of the goods by the defendant satisfied the statute of frauds, aud the plaintifls were entitled to recover lor the de- fendants relusal to take back the quantity left unsold. Lumsden et al. v. Davis, 46 Q. B. 1. K,. entered the sale of certain groceries in a book which was not produced, but the plaintiff produced a list of the things ordered, aud their prices ; and K. afterwards sent the order in a letter signed by him to the defendants, who thereupon wrote the plaintifts, "K. reports a sale that we cannot approve in full, but wiU ac- cept for," enumerating certain articles. Upon the plaintifls' insisting on the completion of the order in iuU the delendants cancelled it alto- gether :- Held, that the letters were a suflScient memoianduni within the 17th section of the Statute of Irauds. Ockley et al. v. Ma.<>son et al., 6 A. R. 108. The contract was expressed to sell " Limits J!foB. 1 and 3 for |] 5,500 ; also aU the plant used in connection with the shanty now in operation, in Limit No. 1, included in the list made out last summer, and the material then, not included which had been in use for the winter's operations of 1880 and 1881," at the price of |3,000 :- Held, sufliciently definite to satisty the statute of frauds since the plant referred to therein could easily be identified by parol evidence as being that speoiflcally described in a certain writing, which accompanied the above contract, and which was signed in the Arm's name and by the purchaser, as also could the terms of credit to be allowed as to the payment of the |15,500, aud such parol evidence was admissible, though the contract imported prima facie a down payment of tha 115,500. Jieid v. Smith, 2 0. R., Chy. D. 69. IL Actions por Nondelivery or Non- acceptance. On the 7th May, 1874, the appellant sold tO' the respondent 500 tons of hay. The writing, which was signed bj' the appellant alone, was in following terms : " iLold to G. A. C. 500 tons of timothy hay of best quality, at the price of $21 per ton f. o. b. propellers in canal, Montreal, at such times and in such quantities as the said G. A. 0. shall order. The said hay to be perfectly sound and dry when delivered on board, and weight tested if required. The same to be paid for on delivery of each lot by order or draft oa self, at the Bank of Montreal, the same to be consigned to order of Dominion Bank, Toronto." In execution of this contract, the appellant de- livered 147 tons and 33 pounds ot hay, after which the respondent reiused to receive any more. The appellant having several times noti- fied the respondent, both verbally and in writing, by formal protest ou the 28th July, 1874, re- quested him to take delivery of the remaining 354 tons of hay. On the 11th of November tol- lowing, the appellant brought an action of dam- ages lor breach of contract, by which he claimed $3,417.77, to wit, |2,471 difference between the actual value of the hay at the date of the protest aud the contract price, and $943. 77 for extra ex- penses which the appellant incurred, owing to the refusal of the respondent to fuliil his con- tract : — Held, that such a contract was to be executed within a reasonable time, and that, from the evidence of the usage of trade, the delivery, under the circumstiaioes, was to be made before the new crop of hay, and that the respondent, being in default to receive the hay when required, was bound to pay the damages which the appellant had sustained, to wit, the difference at the place of delivery between the value when the acceptance was refused and the contract price, and other necessary expeuses, thft amount of which, being a matter of evidence, was properly within the province of the court below to determine. Chapman v. Larin, 4 S. C. E. 349. The defendant company agTeed to purchase from the plaintiff a quantity ot iron called " De- pere" iron, the plaintiff' to deliver the same as the defendants should require for their works. The plaintiff subsequently, without any requisi- tion from the defendants, shipped to them nearly the whole quantity agreed for, of another brand of iron, manulactureii by a different company,, though using the same ore and fuel and making 713 SALE OF GOODS. 714 rthe same grade of iron as the Depere Company. The defend.mts refused to accept the iron offered': —Held (affirming 31 0. P. 475) that the defend- aats were not bound to accept the iron so ten- dered, neither could the pkintiff recover the value thereof, the iron being a different article from that contracted for. Hedstrom v. Toronto Car Wheel Company, 8 A. R. 627. The plaintiffs agreed to deliver to the defen- dant from 1300 to 1500 tons of old iron rails — "cash on delivery of each 100 tons, or with privilege of drawing against them as may be jigreed on between us as they are shipped." On 17th February, 1880, the plaintiffs having de- livered 1150 tons sent an account of shipments, -drew for |1,500, which the defendants on the 2!strefn3ed to accept, erroneously, as they after- wards admitted, asserting that two carloads, price 1333, had not been received, and adding, " You should deliver the balance due on con- tract before asking us to pay any more money. The time has so far gone bj' the date when we expected the whole amount that we think it not unreasonable to ask this. " There was a silence for some time, though the parties were in cor- respondence about another contract, and on the .5th June, 1880, the plaintiffs wrote : " We shall now soon be able to complete the delivery of the old rails, " and they went on to refer to the contemplated contract. In answer, the defendants' agent referred to the other con- tract, but said nothing about the completion of the present one. On 20th August, the plain- tiffs again drew for the price of the amount de- livered, and acceptance was refused for the same reasons as before. The plaintiffs sued for the price of the iron delivered, and the defendants counter-claimed for damages for the non-delivery of the differences between the iron delivered and 1300 tons : — Held, reversing the judgment of •Osier, J., on this point, at the trial, Hagarty, C. J., dissenting, that the plaintiffs were not justified in treating the defendants' letter of the 21st and their conduct as shewing that they con- sidered the contract at an end, and refused further performance of it, for they could not after the letter of the 21st February have sued for breach thereof, in not accepting the remaining 150 tons; and that while the defendants were liable for the price of the amount delivered, they were entitled -to judgment on their counterclaim for damages -caused by the failure of the plaintiffs to deliver ihe balance. Midland Railway Go. v. Ontario Soiling Mills Co., 2 0. E., Q. B. D. 1. This case has been carried to appeal. The plaintiffs claimed damages for non-accept- -ance of iron under another contract : — Held, per Osier, J., upon the evidence and corres- pondence set out in the case, that no concluded contract was shewn, and if it had been the plaintiff's could not have recovered ; for 1. They had transferred the contract, and 2. They made -default in delivery at the time agreed upon. lb. See Exchange Bank v. Stinson, 32 C. P. 158, p. 108. III. Contract of Sale. . A contract for the sale of goods " to arrive " does not constitute a conditional contract ren- -dering the vendor liable only on the condition 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 this case, being a sale of iron to be made in Scotland, it was — Held, upon the evidence in the case, that the sale was abso- lute, and not subject to any condition as to the arrival of the goods. Pleury v. Copland et al., 46 Q. B. 36. By telegrams and letters the defendant offered to sell the plaintiff twelve cars of barley, to be delivered free on the track in Toronto at 66c. per bushel, of the quality of two cars previously shipped by the defendant to the plaintiff, sub- ject to inspection by the plaintiff at his own ex- pense at Landsdowne. The plaintiff telegraphed, "All right, will take the lot. Ship one car on receipt— quick." By letter of same date the plaintiff said that this might save the necessity of his sending down to inspect, as if this car was all right he need not do so. The car was sent by the defendant, who, however wrote at once, when advising of the shipment, that the only way he would sell would be to have the barley inspected at his grain house. Defendant drew on the plaintiff for the price of the car sent, which was paid. The plaintiff did not inspect, but after receiving this car, the plaintiff wrote and telegraphed to defendant to ship the balance but defendant refused to do so : — Held, Cameron, J., dissenting, that the contract was subject to the condition stipulated for by the defendant, that the plaintiff should inspect before shipment ; and that the shipment of one car, with the letter accompanying it, was not a waiver of the con- dition for inspection at Landsdowne of the resi- due, which the defendant was therefore not bound to deliver. Goodall v. Smith, 46 Q. B. 388. See Ockley et al. v. Masson etal., 6 A. E.. 108, p. 243. IV. When Property Passes to Buyer. M. agreed to manufacture and furnish to the joint account of himself and the plaintiff a quan- tity of staves to be loaded in cars at railway station by a day named. By the terms of the agreement the staves were to be considered at all times, whether marked or not, the property of the plaintiff as security for advances : — ^Held, that under this agreement the staves became the property of the plaintiff as soon as made, and never were the property of M. ; and that the agreement did not require filing under the Chat- tel Mortg ige Act ; and that the plaintiff there- fore was entitled as against an execution creditor of M. Kelsey v. Sogers et al., 32 C. P. 624. The plaintiff consigned crude oil to A. , who was a refiner, on the express agreement that no pro- perty in the oil should pass until he made certain payments. Without making such payments, however, A. sold the oil without the knowledge of the plaintiff : — Held, (following Walker v. Hyman, 1 A. R. 345,) that the plaintiff was entitled to recover from the purchaser the price of the oil, although his purchase had been made in good faith and without any notice of the stipu- lation between the plaintiff and A. McDonald V. Forrestal, 29 Chy. 300. M. by false representations induced T. to sell him a horse, buggy and harness, and to take for 715 SALE OF LAND. 716: them two promissory notes. T. having dis- covered the fraud, went and demanded back his goods, at the same time throwing the notes on the table. On the assurance of M., however, that on the following Tuesday he would bring the property or satisfaction, T. again took the notes and went away. M. did not appear as he had promised, and T. sued out a writ of replevin against M. but before it had been executed M. sold the property to the plaintiif, an innocent purctiaser who having been deprived of it under the replevin, brought trover against the sheriflf : — Held, that the plaintiff was entitled to recover; that the contract had not been disaffirmed when the writ of replevin issued, and that the mere issue of it was no notice to M. of disaffirmance, and could not affect the plaintiff. Stoeser v. Springer, 7 A. R. 497. G. had recovered a judgment against his father for costs in an action instituted by the latter, and under the execution issued thereon seized a horse as the property of the father in the pos- session of the plaintiff A., another son. It was shewn that several years before the father had agreed to convey his farm to A. and another brother W. , both of whom assumed possession and control of the property before any conveyance was executed, and so continued in possession, the father continuing to reside on the place with the two sons, part of the consideration for the conveyance being that they should support him. The sons also bought the chattel property from their father, the horse in question having been purchased by A. for $50, and this he kept upon the premises, as had always been done, using him in the work of the farm, and occasionally working for others with him for hire, the father sometimes using him for his own purposes. On this state of facts, the judge of the County Court of Hastings in an interpleader issue, left the question of property to the jury, who found a verdict for A. The court being of opinion that the claim of G. having arisen long after the al- leged sale of chattels, it would require a prepon- derance of evidence in favour of G., to induce the court to interfere with the finding of the jury (but which did not exist) refused to disturb the conclusion of the judge as to the finding of the jury, and dismissed an appeal, with costs. Z)an- ford V. Danford, 8 A. E. 518. See Steele v. The Grand Trunk B. W. Co., 31 O. P. 260, p. 103. V. Acceptance and Receipt. The defendants, withtheknowledge that a con- signment of goods was in excess of the quantity ordered by them, made no objection on that ground though negotiations took place for a re- duction in price, on account of delay. Sic, but took into stock 1 5 out of 25 cases sent. The other 10 cases remained in bond till they were sold to pay duties : — Held, that there was evidence on which a waiver of any objection as to the excess was propei'ly found. Ooodyear Bubber Co. v. I'oater et al, 1 0. E,., Q. B. D. 242. SALE OP LAND. I. Statute op Fbauds, 716. n. GoNTBACT OP Sale. 1. Construction, 717. 2. Delivery of Possession, 718. 3. Interest and Taxes, 718. 4. JReseinding on tlie Grovnd of Fraud,. 719. 5. Specific Performance of— See SPECUiCi Pekpobmancb. 6. Pvrchase of Trust Property by Trustee- — See Trusts and Trustees. III. Title. 1. Incumbrances. (a) How far a Defence to Actions art Mortgages jor the Purchase Money, 720. (b) Purchase Subject to Mortgage^ 720. (c) Discharge of by Vendor, 722. 2. Cloud on Title, 722. 3. Covenants for Title — See Covenants- POB Title. 4. Effect of Notice under the Registry Actsr — See Eegistbt Laws. 5. Compensation for Improvements und&r M istake of Title — See Impeovemekts- ON Land. 6. Quieting Titles — See Quieting TitibSw Act. 7. Applications under R. S. 0. c. 109 — See Vendoes and Puechasees Act. IV. Pbepaeation and Tender op Cokvey- ANOE. 723. V. Sales por Taxes — See Assessment and Taxes. VI. Sale op Crops — See Ceops. VII. Ceown Lands — See Ceown Lands. YIII. Under Execution — /See Execution, i IX. Feaud in Conveyance oe Sale op Lan& — See Feaud and Misbepeesekta- TION. X. Maeeied Woman's Property — Sec Hus- band AND Wife. XI. Infant's Estate — See Infant. XII. Under Power op Sale — See MoBTGAeE^ XIII. Under Order of the Court — See Sale. OF Land by Obdeb of the Court. XIV. Of Timbee— iSee Timbee. I. Statute of Fbaudis. Where a written agreement for the sale of land contained the following condition ii sale i "The= vendor shall have the option of a reserved bid wh ich is now placed in the hands of the auctio- neer," and the reserve bid was worded as- foUows : " Ke sale of Allan Wilmot's farm, reserved bid, |105 per acre : "—Held, that the above words, even though read together as they should be, did not so identify the vendor as to- satisfy the statute of frauds. ' ' Vendor " is not a. 717 kSale of land. 718 sufficient description of theparty selling to satisfy tlie requirements of the said statute. Wilmot v. Stalker, 2 O. R., Ohy. D. 78. A., whose wife owned a certain freehold pro- perty on St. George street, wrote to B. the owner of a certain leasehold property on King street, with reference to the said properties, as follows : "If you will assume my mortgage, and pay me in cash $3, 700, I will assume your mortgage of $5,000 on the leasehold :" and B. replied, " Your offer of this date, for the exchange of my pro- perty on King street for your property on St. George street, 1 will accept on your terms :" — Held, affirming the judgment of Ferguson, J. (2 O.K. 609) not a sufficient memorandum of the con- tract to satisfy the statute of frauds. (Armour, J., doubting). McClung v. McCracken et ux., 3 0. R., Q. B. D 596. In letters written by the solicitor of a pur- chaser of land sold at auction it was stated that the advertisement of sale had represented that twenty acres of the land purchased from the defendant had been cleared and fenced, whilst the fact was no fencing whatever remained on the premises, and by reason thereof claimed compensation, and in his answers thereto the defendant did not deny the fact of sale and pur chase, but disputed the right to compensation : — Held, affirming the decree of the Court of Chan- cery (28 Chy. 207,) a sufficient admission of the fact stated to take the case out of the statute of frauds, although no contract of sale had been signed by the vendor. Stammers v. O'Donohoe, 8 A. R. 161. Affirmed by Supreme Court. See 20 C. L. J. 260. Although a vendor is allowed great latitude in the statements or exaggerations he may make as to the general qualities and capabilities of land he is about to offer for sale, still he will not be per- mitted to make direct misstatements and misre- presentations as to matters of fact which would naturally have the effect of inducing parties resident at a distance to bid for the property. S. C, 28 Chy. 207. See also "Specific PEKroEMANCE,"!. 1, p. 738. II. Contract oe Sale. 1. Construction. An agreement for the purchase of certain land, after providing for the payment of a certain por tion of the purchase money, continued as follows "The remaining |1,900 (after deducting the amount due to the Crown), payable in instal- ments of $100 each, without interest, on 1st April in each year, during nineteen years," and the purchaser to secure by mortgage " the residue or sum of |1,£00 (less the amount due to the Crown) payable as aforesaid." It was not then known exactly how much was due to the Crown, but it was soon after ascertained to be $364: — Held, the true meaning of the above agreement was that the amount due to the Crown was to be sub- tracted from the $1,900, and the balance paid in instalments lof $100 each on 1st April in each year until the whole of such balance should be paid. Woljfe v. Hughes, 1 0. R., Chy. D. 322. By an agreement for the sale of land for $60, 000, $4,000 was to be paid on the execution of the agreement, $40,795 within sixty days thereafter. and the balance to remain on mortgage. The purchasers paid the $4,000 but refused to pay the $40,795, to recover which this action was brought ;— Held, that the jprovision as to the mortgage not stating when it was to be payable did not render the agreement void for uncertain- ty : — Held, also, that the plaintiff could recover the $40,795 without tendering a conveyance of the land, for that his right thereto was an inde- pendent right, and not a concurrent act with the tendering such conveyance ; and at aU events it was the purchaser's duty to prepare and tender the conveyance : that it was unnecessary for the plaintiff to aver and shew that he had a good title, for he was only required to make a good title when he could be called upon to do so, which could not be until the last instalment was de- manded or defendant shewed his readiness and willingness to arrange that according to the con- tract ; and that it was therefore no defence to aver that the plaintiff could not give a good title . McDonald v. Murray et al, 2 0. R., 0. P. D. 573. See VanKoughnet v. Denison, 1 0. R. 349, p. 182; McKenzie v.' Dwight, 2 0. R. 366, p. 720. 2. Delivery oj Possession. The delivery to a purchaser of a house of the key thereof is not of itself delivery of possession ; it is but a symbolical delivery, and may be evi- dence of possession if given or received with that view. The People's Loan and Deposit Co. v. Bacon, 27 Chy. 294. Merely obtaining the keys of a building in order to view the premises, so as to estimate alterations intended to be made, and to perform other acts to preserve the premises from dete- rioration, is not such a taking possession under a contract for sale as will bind the purchaser and render him liable to pay interest on the purchase money. What will be a sufficient taking of pos- session of a purchased house considered and treated of. lb. By one of the conditions of sale the purchaser was required to pay a deposit of ten per cent, at the time of sale and the remainder within one month thereafter, and upon such payment the purchaser was to be entitled to a conveyance and to be let into possession of the property pur- chased : — Held, that under this condition the payment of the purchase money by the pur- chaser and the delivery to him by the vendor of possession were concurrent acts, and unless the vendor was in a position to put the purchaser in possession he could not be called upon to pay interest on the unpaid purchase money. Neither was he bound in such a case to pay ground rent accruing due upon the property whilst he was so kept out of possession. In such a case, letting a purchaser into receipt of rents and profits is not a compliance with the condition to give the pur- chaser possession. Under such circumstances the purchaser was held entitled to make a deduc- tion of a proportionate share of the taxes assessed on the premises for the year in which the sale was effected. 76. 3. Interest and Taxes. See The People's Loan and Deposit Co. v. Bacon, 27 Chy. 294, supra ; Harrison v. Joseph, 8 P. R. 293, pp. 724, 725. 719 SALE OF LAND. 720 4. Rescinding ore the Oround of Fraud. The defendant and his brother partitioned their lands, defendant taking the west half of a lot, on which was an hotel, and the brother, the east half, on which a store was erected, each supposing that the division line ran between the two buildings. The defendant sold his portion to the plaintifiF, who had lived opposite for many years, the land being described as the west half according to a plan. The hotel encroached upon the east half at the rear end of the building about thirty-four inches, the value of the land en- croached upon being very trifling. It appeared that the hotel could be moved for about |40 ; and that defendant had offered to procure a lease of the portion encroached upon at a nominal rent, which was refused. The plaintiff charged that the defendant had falselj' and fraudulently represen- ted that the division line between the two lots ran between the two buildings, and brought an action therefor, praying for a rescission of the sale, for an account of her improvements made, and for damages. The deed was drawn after the alleged misrepresentation and after the plaintiff knew of the encroachment, and nothing was then said about the line. The learned judge at the trial found that there was no false representation, but he added defendant's brother as a party, and directed him to convey to the plaintiff the land encroached upon : — Held, that the action could not be maintained, for, among other reasons, the plaintiff knew of the encroachment when he took the conveyance, which made no provision respect- ing it ; and she had so dealt with the property as to preclude her from claiming a rescission : — Held, also, that under the circumstances, more fully stated in the report of the case, the brother should not have been added ; and the plaintiff, having based her action on the ground of fraud, should not be allowed to rely upon an entirely different ground. Dunbar v. Meek, 32 C. P. 195. The defendant was assignee of a land warrant issued to a constable of the North-West Mounted Police Force, for service in that body, which en- titled him upon its face to locate 160 acres upon any of the dominion lands, subject to sale at $1 per acre. The defendant induced the plaintiff to purchase the warrant by representing to him that he would be entitled to obtain from the government 160 acres of land. There were lands subject to sale at %\ per acre when the warrant was issued and thereafter. By various statutes and orders in council the dominion lauds were made subject to sale at higher prices than |1 per acre, but these land warrants were to be accepted by the government in part payment of %\ per acre. The plaintiff was refused lands at %\ per acre by the crown, and then brought this action to rescind the sale to him on the ground of the misrepresentation. The jury found that defen- dant represented to plaintiff, to induce him to purchase, that the warrant would entitle him to 160 acres of land ; that the plaintiff purchased on the faith of this ; that the representation was false ; and that defendant made it without know- ing whether it was true or false, intending it to be relied upon : — Held, Armour, J., dissenting, that the plaintiff must fail ; for the construction of the warrant clearly expressed that the holder was entitled to 160 acres of land at H per acre, and not simply to a credit of f 160 on a purchase and the representation was such as defendant might properly make. Per Armour, J. — The re- presentation that the warrant would entitle the plaintiff to 160 acres of land comprehended the affirmation of fact by the defendant that there were then dominion lands subject to sale at $1 per acre, and this not being so the plaintiff should succeed. McKenzie v. Dwight, 2 0. E., Q. B. D. 366. III. Title. 1. Incumbrances. (a) How Far a Defence to Actions on Mortgages for the Purchase Money. Where on the sale and conveyance of land the existence of an incumbrance is concealed by the vendor, who covenants against incumbrancea: and the purchaser executes a mortgage to secure a balance of unpaid purchase money, the court wiU restrain an action to enforce payment of such mortgage, brought at the instance of the mort- gagee— or the voluntary transferee — unless the amount of the incumbrance so concealed is de- ducted from the sum secured by such mortgage. This principle was applied in a case where the purchaser was a married woman, and her hus- band had joined in and executed the mortgage, by which he covenanted to pay the amount se- cured thereby, although the covenant against incumbrances was to the wife and not to the husband, the covenantor, himself. Lovelace v. Harrington, 27 Chy. 178. (b) Purchase Subject to Mortgage. AVhere a purchaserof a portion of an estate sub- ject to mortgage gave a covenant to pay a propor- tion of the mortgage money, and a bill was filed by the vendor's assignee to compel payment by the purchaser the court refused to give such re- lief except upon the terms of the vendor's share of the mortgage debt being paid at the same time, although there was no covenant on the part of the vendor that he would fiay. Bat the court refused to include a direction that the pay- ment by the purchaser of his share should be conditional on the payment by other and inde- pendent purchasers of other parts of the estate of their shares of the sum due. In such a case, however, it would seem that any of such pur- chasers paying the amounts properly payable by others would be entitled to use the name of the plaintiff in proceeding against such defaulting purchasers, upon indemnifying him against costs. Clemow v. Booth, 27 Chy. 15. A vendor of lands, which were subject to in- cumbrances created by himself, covenanted with his vendee to pay off the incumbrances, and dis- charge the lands sold from them. The vendee subsequently mortgaged the lands to the plain- tiffs, with the usual mortgagor's covenants. In a suit by plaintiffs seeking (amongst other things) to have the lands relieved of the incumbrances: — Held, that the plaintiffs were entitled to the benefit of the vendor's covenant, and he was ordered to discharge the incumbrances, and pay the costs of the incumbrancers. Clark v. Bogart, 27 Chy. 450. Several parcels of land were embraced in one mortgage. Subsequently the mortgagor further mortgaged some of them to the plaintiffs with 721 SALE OF LAND. 722 the usual mortgagor's covenants. He afterwards ■conveyed another parcel to S., who, M'hen he took hia conveyance, was not aware of the plaintiffs' mortgage, but it was registered against the par- cels embraced in it, though not against the other parcels: — Held, (1) That the plaintifiFs were en- titled to require as between them and S. that the parcel conveyed to the latter should be re- sorted to for the satisfaction of the prior mort- gage before recourse should be had to the parcels embraced in the plaintififs' mortgage. (2) That the registration of the prior mortgage against the parcel bought by S. was notice to him of the right of persons who purchased other parcels before he purchased to throw the mortgage upon his parcel, and that S. was affected with notice of the plai:itififa' mortgage, and the right it con- ferred. Ih. The plaintiff purchased a house and lot from ■defendant for $2000, paying 1 1 000 in cash, and assuming a mortgage to a building society "on which |()64 is yet unpaid," and giving a mortgage to the defenilant for the balance. The defendant covenanted that he had not incumbered, save as aforesaid. Subsequent inquiries shewed that there were due the society seventy-one monthly instalments Of $16.75, in all $1189.25, and the plaintiff insisted that she was entitled to credit from the defendant for the difference between ■$664 and the latter sum. But : — Held, that the plaintiff was entitled to retain in his hands only the. cash value of the mortgage at the date of his purchase, if the society would accept it, if not then such a sum as, with interest on it, would meet the accruing payments. The defendant by his answer admitted an error in the computation of the amount due the society, and offered to pay the difference between the $664 and -what he alleged was the cash value and costs up to that time: — Held, that in the event of the society ac- cepting present payment of the cash value, the ■defendant was entitled to his costs of suit, subse- •quentto answer. Stark v. Shepherd, 29 Chy. 316. M. conveyed laud to the plaintiff subject to a "mortgage to the T. & L. Co. for $2,000, and one to C. for $500, which the plaintiff covenanted to pay and save M. harmless therefrom. The plain- tiff then conveyed to the defendant in considera- tion of "$1,050 and assuming the payment of the mortgages " aforesaid. The defendant gave back a mortgage for the balance of purchase money. He went into possession and paid some interest on the T. & L. Oo. mortgage. Subse- •qnently a new arrangement was made, and the defendant's mortgage was discharged, and a mortgage for $1,850 was given by the defendant tp the plaintiff, which included the amount of three promissory notes for $350 and other items, besides the balance of the purchase money. There was no covenant for payment therein. The T. & L. Oo. mortgage fell due and was not paid, and the plaintiff paid C.'s mortgage of |500 :— Held, that the defendant was bound to pay off the T. & L. Co. mortgage and relieve the land therefrom, and indemnify the plaintiff against it if personally liable thereon. Canavan V. Meek, 2 0. R., Q. B. D. 636. M. , who was the owner of Whiteacre and Black- ■acre, both subject to incumbrances of $1,600 and ^500, sold Whiteacre to 0. subject to the $1,600 mortgage, with covenants for title, save as to that mortgage, the mortgage debt in reality being 46 the consideration or purchase money therefor. M. afterwards sold Blackacre to N., subject to the $500 mortgage, which conveyance also con- tained absolute covenants for title, the payment of the $500 being taken as part of the considera- tion. Default having been made in payment of the $1,600 mortgage, the mortgagee proceeded to a sale under the power, and N. became the purchaser of both pai'cels with a view of protect- ing himself, and thereupon took proceedings to compel M. and the representatives of C. to pay the amount due on the $1,600 mortgage : — Held, ifihrming the judgment of the court below (28 Chy. 334), that there was not any privity be- tween the plaintiff and 0. 's representatives, and that the demand remained with M. , the original vendor, against C.'s estate. Norris v. Meadows, 7 A. R. 237. See Kempt v. Macavley, 9 P. K. 582, p. 165. (c) Discharge of, hij Vendor. A vendor agreed to pay off a mortgage existing on the property, and the decree directed a good and suffioieut conveyance "according to said agreement." The defendant, the vendor, neg- lected to pay off the mortgage, and the plaintiff thereiipon moved upon petition to amend the decree by ordering the defendant to obtain a discharge of such incumbriuce ; but the court (Boyd, C.,) directed thit the vendor pay off the mortgage within a limited time, or in default, that the purchaser should be at liberty to do so, procure an assignment, and have his remedy against the vendor, whose conveyance he was not bound to accept till this mortgage was paid off ; the purchase money in court to be applied pro tanto thereto : —Held, also, that as the mat- ter had been referred to the master by the decree, which was for specific performance, it should have been disposed of in his of&ee under G. O. 226. Stammers v. O'Donohoe, 29 Chy. 64. 2. Cloud on Title. A bill alleged that a mortgage was executed by W. to the defendant in consideration of $450, that defendmt advanced only $150 thereon, and W. being entitled to receive the balance assigned such right and conveyed his equity of redemption to the plaintiff. That the defendant refused to pay the balance and claimed to hold the mortgage as security for $450. The prayer was for specific performance or,in the alternative, a declaration of the above facts, and for general re- lief. At the hearing, theleirned judge allowed a demurrer ore tenus, on the ground that an agree- ment to lend money could not be specifically performed : — Held, reversing this judgment, that upon the facts alleged in the bill, namely, that the mortgage was being held for more than had been advanced thereon and therefore to that extent formed a cloud on the title, the plaintiff would be entitled to a declaration to that effect, and appropriate relief ; and as the demurrer admitted the truth of the allegation it should have been overruled. Calvert v. Burnham, 6 A. K 620. S., believing that his father (still living, but of unsound mind) was entitled to certain lands to which the plaintiffs claimed title, took the advice 723 SALE OF LAND BY ORDER OF THE COURT. 724- of Ms solicitor, C, who, being advised by coun- sel, instructed by S., prepared and registered an instrument, whereby he, S-, stated that he claimed the lands, and would upon the demise of his father commence proceedings for their re- covery. The plaintiffs were thus obstructed in the sale of their lands, and brought an action against S., C, and the Registrar, to remove the ingtrnment from the register, as being a cloud on the title, and for dalnages. Proudfoot, J., dis- missed the action as against the registrar, but gave judgment, with a reference to assess dam- ages, against S. and C, (4 0. E. 473) :— Held, that the Registry Act did not authorize the re- gistration of such an instrument : and, Cameron, J., dissenting, that an action would lie for its removal. Ontario Industrial Loan and Invest- ment Company v. Lindiey et al., 3 0. B., Q. B. B. 66. The plaintiff was owner in fee of certain lands which were conveyed to him by deed of 27th July, 1868, registered 11th August, 1868. Sub- sequently, by mistake, the said lands were sold for taxes, although no taxes were actually in ar- rear ; and by deed of 11th March, 1880, were conveyed to A. MoL., the tax purchaser, which deed was registered 18th May, 1880. On 29th ^November, 1881. A. MoL., conveyed the said lands to J. W. by deed absolute in form, but in- tended as security for money advanced by J. W., which deed was registered 1st December, 1881. Til e plaintiff found out that this sale for taxes hrd taken place shortly before bringing this action, in which he sought the cq,nceUation of the deeds to McL., and J. W. :— Held, that the plaintiff was entitled to have the deeds cancel- led, and J. W. was entitled to judgment against A. McL., for the moneys advanced by him. Charlton v. Watson et al., 4 U. R., Chy. D. 489. IV. Pkbpabatiok and Tender op Conveyance. See McDonald v. Murray et al, 2 0. R. 573, p. 718. SALE OF LAND BY ORDER OF THE COURT. L Biddings, 724. II. Tbndees, 724. III. TiTLB, 724 IV. Taxes, 724. V. Pdkchase Money. 1. Payment into Court, 724. 2. Interest, 725. 3. Abatement of, 725. 4. Application of, 725. 5. JReturn of Deposit, 726. VL Vesting Order, 726. VII. Giving UP Purchase, 726. VIII. Setting aside Sale, 726. IX. Miscellaneous Casks, 726. X. Sale of Mortgaged Premises — See Mortgage. 1. Biddings. A master has no power to give leave to bid to a party conducting a sale. Application must bft made to the court. Me Laycoch — McGitlivray v, Johnson, 8 P. R. 548.— Blake. Liberty of trustee to bid at sale. See Sicker V. Bicker, 7 A. R. 282. II. Tenders. On the reference under the decree in a mort- gage suit, the plaintiff put in several affidavits as to the value of the property, $3500 being the highest price named in them. The defendant did not file any affidavits in reply. The plaintiffs then tendered f 3500 for the property, which the master declined to accept without an order direct- ing him to do so. The referee on application re- fused such order, and on appeal," Spragge, C, upheld his judgment. Ramsay v. McDonald, 8 P. R. 283. III. Title. In a. sale under a decree : — Held, that the purchaser had no right to certified copies of re- gistered and other documents procured at the expense of the vendors. Harrison v. Joseph, 8 P. R. 293.— Stephens, Referee. Where a bill was served on a defendant per- sonally, and about a year afterwards a final order of foreclosure was granted in the suit : — Held, that a purchaser was noi entitled to insist on the plaintiff (the vendor) proving that the defen- dant was alive when the final order was made, Henderson v. Spencer, 8 P. R. 402. — Spragge. See McDtrmid v. McDermid et al, 8 P. E. 28, p. 725; Laplante v. Seamen et al, 8 A. E. 557, p. 725. IV. Taxes. The purchasers claimed that the vendors should pay a proportion of the taxes for the year 1 880 up to 6th March, when the title was accepted and possession given. The by-law for the collec- tion of taxes in Toronto for 1880, was passed on the 2nd April, 1880, and provided that the taxes should be due and payable on 4th June, 1880, hut- that if an instalment was then paid, further payment by instalments might be made on the 15th July and 3rd September : — Held, that un- der R. S. 0. c. 174, s. 347, and the terms of the city by-law, no taxes were due so as to form a charge on the land until 4th June, the date when the first instalment of taxes was due, and that the vendors therefore were not bound to pay any part of the taxes for that year. Harmon v. Joseph, 8 P. R. 293.— Stephens, Seferee. V. Purchase Money. 1. Payment into Court. On a sale under a decree, the purchaser, ex- cept under special circumstances, will not be compelled to pay his purchase money into court until he has accepted or approved of the title- 725 SALE OF LAND BY ORDER OF THE COURT. 726- or the master has reported that the vendor can make a good title. McDenaid v. McDennid et al., 8 P. R. 28. —Blake. One of the defendants in a suit purchased the lands in question upon a sale under the usual decree for partition or sale. The appellant, the plaintiflF, was first mortgagee, and the purchaser was second mortgagee of the interest of one S., the owner of an undivided sixth interest in the lands : — Held, that the purchaser was entitled to a conveyance from S. with the usual covenants for title as to his interest, and was not bound to accept a vesting order. Cameron, J., doubting, whether the question was not one of conveyance rather than one of title, and whether therefore the purchaser should not be ordered to pay his purchase money into court. Queere, whether the appellant, whose only interest was that of mort- gagee of S.'s interest, had any locus standi to bring a suit for partition, or to appeal without his co-plaintiff. Laplante v. Seamen et al., 8 A. R. 657. (See also Sub-head V. 4, infra.) 2. Interest. Where in a sale under a decree, no undue de- lay in investigating the title is attributed to either party, interest upon purchase money is payable only from the date of the acceptance of the title, and not from the time named in the con- ditions of sale. Harrison v. Joseph, 8 P. R. 293. 3. Ahatement of. Where land was advertised for sale under a decree, and the purchaser, the owner of the ad- joining lot, who had also been in possession, by his son, of the advertised premises, tendered for them, knowing that the lands comprised fewer acres than the advertisement stated, and intend- ing to seek an abatement after the purchase was completed, and a subsequentincumbrancer offered to give the same price for them as the purcha- ser : — Held, that the petitioner should be put to his election either to take the land without abatement of the purchase money, or to let it go to the subsequent incumbrancer. Carmichael v. • Ferris, 8 P. R. 289.— Stephens, Bejeree.— Blake. 4. Application of. , The bill was filed by a second mortgagee, the first mortgagee not being made a party. At a sale under the decree, M. purchased the land, and afterwards paid the purchase money into court ; he then mortgaged the land, then conveyed his equity of redemption, and then took out a vest- ing order. Grant, a subsequent mortgagee, claimed payment of his claim out of the moneys in court. On the I9th November, on the appli- cation of M., the referee made an order, directing payment to the assignee of the first mortgagee of his claim out of the purchase money in court. It appeared that M. thought he was purchasing free from incumbrances, and was ignorant of the first mortgage. On appeal, Proudfoot, V. C, upheld the referee's order. Fleming v. McDougall, 8 P. E. 200. See Hyde v. Barton, 8 P. E. 205, p. 222. 5. Return of Deposit. At a sale under'the standing conditions of sale- of the court the purchaser paid ten per cent, of his purchase money, but made default in paying the- balance, and on a re-sale the property brought $25 more than at the first sale. Boyd, 0. , refused an application by the purchaser to have his de- posit repaid to him, but as it appeared that the deposit would cover the expenses and costs in- curred by the re-sale, he directed that the pur- chaser should not be required to pay them in addition. Tilt v. Knapp et al., 9 P. E. 314. VI. Vesting Oedeb. See Fleming V. McDougall, 8 P. R. 200, p. 725 ; Hyde v. Barton, 8 P. E. 205, p. 222. VII. GiVINS UP PUKOHASE. At a sale under a decree on the 25th March,. 1879, A. purchased the land in question. Ou the 19th April, 1879, he transferred his interest to W., and on the 26th April, one H. purchased and took an assignment of the dower of one S. in the land. On the 16th February, 1880, A. ap- plied to be released from the contract to pur- chase on the ground of the outstanding dower. The evidence shewed that S. had agreed with the heir-at-law to accept a gross sum in lieu of her dower, that W. reaUy purchased the dower, but took the assignment in H. 's name, and that this application though in A. 's name, was really made by W. : — Held, that no relief could be granted, the applicant having himself created the obstacle by means of which he sought to prevent the sale being carried out. Fraser v. Q-unn, 8 P> E. 278.— Spragge. See Tilt v. Knapp et al., 9 P. E. 314, sapra. VIII. Setting aside Sale. Although a decree of sale should direct the- same to take place with the approbation of the master, the omission of such direction is no ground for moving to set aside the sale under the decree, where the same really took place with such approbation, even in a case where infants are interested. Richer v. Richer, 27 Chy. 576 ; 7 A E. 282. See Campion v. Brachenridge, 28 Chy. 201, p^ 50. IX. Miscellaneous Cases. Where a decree directed a sale of certain pro- perty at the expiration of a year from the date of a master's report, a sale at the end of a year from the date of the decree, instead of the date of the report, was allowed under special circum- stances, on the ground that the decree was in effect equivalent to a judgment at law. Porte v. Irwin et ux., 8 P. E. 40. — Blake. A purchaser at a sale under decree signed the usual contract to purchase, and paid the deposit. The next day the buildings on the property were burned down : — Held, by Proudfoot, V. C. , on appeal, reversingthe decision of Stephens, referee, 8 P. E. 166, that the loss would not fall on the= 727 SEQUESTRATION. 728 purchaser, as the interest contracted for did not vest in him till the report on sale was confirmed. .Stephenson v. Bain, 8 P. R. 258. „„,„o,,-a, .„..„^ SALOON. See Taverns and Shops. SATISFACTION. See Accord and Satisfaction. SCHOOLS.! See Public Schools. SCIRE FACIAS AND REVIVOR. A plaintiff in an action for dower recovered Judgment, but before the execution of the writ ■of assignment of dower, and after its issue, the tenant of the freehold died, having devised the land in question to the present defendant : — Held that the plaintiff must proceed against the devisee by scire facias, and not by suggestion or revivor. Davis V. Dennison, 8 P. R. 7. — Haga,rty. Held, that since the passing of 35 Vict. c. 12, s. 1, Ont., (R. S. 0. c. 116,) the assignee of a judgment is entitled to revive the same in his own name by entering a suggestion on the roll. PJiilips V. Fax, 8 P. R. 51.— Dalton, Q. C. An order of revivor was obtained in the cause ■ on the ground that the sole plaintiff had assigned all his interest, &c., to one Close. The plaintiff applied to the court by petition to set aside the order, disputing the assignment on the allegation of which the order was obtained. Proudfoot, V. C, discharged the order of revivor with costs. Fishen v. Ince et al, 8 P. R. 147. See Soss v. Pomeroy, 28 Chy. 435, p. 425. SCOTT ACT. See Canada Temperance Act, 1878. • SCRUTINY. See Parliamentary Elections. SEAL. •Contracts with Corporations— (See Corpora - The testimonium clause in a power of attor- ney declared that the principal set his hand and seal to the instrument. The attestation clause declared that it was signed and sealed in the pre- sence of a subscribing witness, and opposite the ■signature of the principal was a visible impres- sion made by the pen in the form of a scroll, in which was inscribed the word " seal :" — Held, a sufficient sealing of the document. Re Bell and Black, 1 0. S., Chy. D. 125. SECURITY. I. Collateral— iSee Collateral Secueeit. II. For Costs— /See Costs. SEDUCTION. Held, following HodsoU v. Taylor, L. R. 9 Q. B. 79, that in an action for seduction evidence as to defendant's means is inadmissible ; and that evidence of the kind having been received, de- fendant was not to be prejudiced in bis applica- tion for a new trial because his counsel had, after having done his best to exclude the evi- dence, examined defendant on the same subject with a view to disproving the estimate placed on his means. Ferqiison v. Veitch, 45 Q. B. 160. Where au unmarried woman is seduced and pregnancy follows, or sickness which weakens or renders her less able to work or serve, the father's cause of action is complete, and cannot be divested by the subsequent marriage of his daughter before birth of a child. The facts of seduction, pregnancy, and illness might be proved by the daughter, but she might refuse to answer as to who was the cause of her pregnancy if she asserted that the child she bore was born in wed- lock. Fvans v. Watt, 2 O. R. , Q. B. D. 166. But where the daughter was married to a third person during her jiregnancy consequent upon her seduction by the defendant, and her child was born in wedlock, and the action was brought at the instigation of the husband, he and his wife being the only witnesses, and no proof of sickness or inability to serve was given : — Held, (Armour, J. , dissenting,) that a nonsuit was pro- perly entered. Per Armour, J. If loss of ser- vice was necessary to be proved, a new trial should be granted for that purpose ; and it can- not be said that under such circumstances a father sustains no dainages apart from the loss of service, lb. Held, aflSrming the judgment of Cameron, J. 9 P. R. 206, that under the Insolvent Act, 1864. sec. 9 sub-s. 5, a discharge in insolvency would form no answer to proceedings upon a judgment against defendant for seduction. Beninger v. Thrasher, 1 0. R,, Q. B. D. 313. Arrest under Ca Re. — See Wheatly v. Sharp, 8 P. R. 189, p. 334. SEPARATE SCHOOLS. See Public Schools. SEQUESTRATION. On moving for a writ of sequestration for a breach of an injunction, two clear days' notice of motion is sufficient. Cook v. Credit VaUty B. W. Co., 8 P. R. 167.-Blake. 729 SESSIONS. 730' Held, that a writ of sequestration could not issue, under Rule 339, on an ordinary common law judgment for a debt recovered before the passing of the Judicature Act, it not being an order for payment of a speoitic sum, and no day named for payment in it. The property sought to be se- questered, was property in the hands of five trustees under a will. Two of the trustees, one of whom was the judgment debtor and took a life interest in part of the property, resided within the jurisdiction, the other trustees resided out of the jurisdiction in St. John, N. B. : — Held, that service of a notice of motion founded on such writ of sequestration on such non-resident trus- tees was sufficient, though a judgment or decree founded upon it would not avail the plaintiifs in the courts of New Brunswick. Tlie. London and Canadian Loan and Agency Co. v. Merritt, 32 C. P. 375. Semble, that under a writ of sequestration a debtor's choses in action can be reached, lb. SEEVANT. See Master and Servant. SERVICE OF PAPEES. See Practice. II. SESSIONS. CONTTCTIONS. 1. Amendment of, 729. 2. Appeals from Magistrates, 729. 3. Appeals from Sessions, 730. Mandamus to — See Mandamus. I. Convictions. 1. Amendment of. Where an appeal was brought from a convic- tion imposing imprisonment with hard labour, which the magistrate had no power to award, and the sessions amended the record by striking out " hard labour. " Held (Cameron, J., diss.), that their assuming so to amend the conviction was not a quashing of the conviction, and therefore trespass would not lie against the justices. Mc- Lellan v. McKinnon, 1 0. E., Q. B. D. 219. Per Armour, J., the General Sessions of the peace have no power under 32-33 Vict. c. 31, to amend the sentence in a conviction as by strik- ing out the part imposing hard labour, but can hear and determine an appeal on the adjudica- tion of guilt only. Hagarty, 0. J., inclined to agree, but gave no express decision on this point, lb. 2. Appeals from Magistrates. Held, that the prosecutor of a complaint can- not appeal from the order of a magistrate dis- missing the complaint ; as by R S. 0. c. 74, s. 4, the practice of appealing in such a case is assimilated to that under Dom. Stat. 33 Vict, c. 47, which confines the right of appeal to the de- fendant. A prohibition was therefore ordered, but without costs as the objection to the jurisdic- tion had not been taken in the court below. In re Murphy and Cornish, 8 P. E. 420.— Osier. 3. Appeals from Sessions. A conviction may be returned and proved at any time during the hearing of an appeal there- from to the general sessions, or, in the discretion of the chairman, even during an adjournment for judgment. In re Ryer and Plows, 46 Q. B. 206. A minute of conviction signed by the justice, but not sealed, was returned to the sessions, upon the entering of an appeal therefrom by the defendants. The jury found the defen- dant guilty of the offence of which he had been convicted, but on motion for judgment he ob- jected that the conviction was not sealed. The chairman reserved judgment until a day named, and during the adjournment the justices returned and filed a conviction under seal. The chairman then declined to receive it, or to give judgment, holding that there was no conviction upon which- to found the appeal, which had been heard : — Held, that the prosecutor was not entitled to a mandamus to compel him to deliver judgment ; for the reception of the conviction in evidence at that period was in the chairman's discretion, which could not be reviewed. lb. On an appeal to the sessions from a conviction by a magistrate for breach of a municipal by-law,, it is in the discretion of the chairman to grant or refuse a request for a jury, under 36 Vict. c. 58, s. 2, which is declaratory of the meaning of sec. 66 of the 32-33 Vict. c. 31, and is not confined to oases under the Acts mentioned in the pre- amble and title, which relates only to the de- sertion of seamen. Begina v. Washington, 46 Q. B. 221. On the appeal the appellant tendered evidence and witnesses not heard on the trial before the magistrate which the chairman rejected, relying on 32-3;t Vict. c. 31, s. 66, which, however, had beep repealed by 42 Vict. c. 44, s. 10. The con- viction was amended and affirmed, as and for a breach of a municipal by-law : — Held, that the appellant had the right, under either the Domi- nion Act, or R. S. 0. c. 74, s. 4, which governed the case, to have such witnesses examined, and having been deprived di this right, the order of sessions should be quashed, lb. On an application to quash a conviction brought up upon certiorari, the court will not notice any facts not appearing in the conviction, for the purpose of impeaching it on any ground, except want of jurisdiction ; nor has the court any power to review the decision of the sessions- in a matter within their jurisdiction, nor to grant a mandamus to compel them to rehear an appeal. The court, refused, therefoi-e, to quash a conviction under the Liquor License Act, affirmed on appeal, on the ground, among others, that the general verdict of guilty was inconsis- tent with the answers of the jury to specific ques- tions. Segina v. Orainger, 46 Q. B. 382. SeeMcLellanY. McKinnon, 1 0. R. 219, p. 729.- 731 SHERIFF. 732 SET-OFF. I. In Insolvency Proceedinss — See Bank- KUPTCi AND Insolvency. II. Of Costs — See Costs. III. Pleading Counter Claim ob Set-oit — See Pleading. The plaintiff had recovered a verdict for |600 against defendant for malicious prosecution, but judgment had not been signed thereon. At the same Assizes the defendant recovered a verdict against the plaintiff for |380 on promissory notes, and signed judgment. The plaintiff almost im- mediately after its recovery assigned his verdict to his brother, but the court held this to be a device to prevent ' a set-off : — Held, that the defendant was entitled to have the plaintiff's verdict set-off pro tanto by entering satisfaction upon his judgment to the extent of the verdict, and paying the costs of suit ; and it made no difference that the judgment had not been enter- ed by the plaintiff. Grant v. Mc Alpine, 46 Q. B. 284. A mortgagor and mortgagee dealt together for some years without having had any settlement •of accounts, and the former became insolvent. At the date of the insolvency there existed a right of set-off, in favour of the mortgagor for the balance due him on their general dealings : — Held, affirming the finding of the master, that such right of set-off passed to the official assignee of the mortgagor, and that a transferee of the security took it subject to the equity. Court v. Holland, 29 Chy. 19. See Culverwell v. Oampton i p. 646. '.al, 31 C. P. 342, SETTLED ESTATES ACT. See He Smith's Trusts, 4 0. R. 518, p. 234. Mabbiagb Settlements.- WlFE. SETTLEMENTS. ■See Husband and SEWERS. See Municipal Coepokations. SHADE TREES. See Dmiglas v. Fox et al, 31 G. P. 140, p. 793. [See 47 Vict. c. 36, Ont.] SHERIFF. I. Actions and Pboobbdinqs by Sheriff. 1. Venue, 732. 2. Interpleader on Adverse Claims. — See Intebplbadbe. II. Duty and Liability on Writs of Exe- cution. 1. Landlord's Claim for Rent after Sd- zure under Execution, 732. 2. In Bailable Proceedings. — See Bail. 3. Property Liable. (a) XJiider fi. fa. Goods or Lands. — See Execution. (b) For Arrears of Taxes. ■ Assessment and Taxes. -Set III. Fees. 1. When Offi.ce of Sheriff is Vacant, 732. 2. Poundage, 733. 3. Taxation of, 733. I. Actions and Proceedings by Sheeiff. 1. Venue- Ill an action wherein a sheriff is plaintiff or defendant, the opposite party, if he so desires, may have the action tried in the county adjoin- ing that in which the sheriff resides. Brannen V. Jarvis, 8 P. R. 322.— Gait. II. Duty and Liability on Weits of Execution. 1 . Landlord's Claim for Bent after Seizure under Mcecution. Goods having been seized by the sheriff under execution, and claims having been made thereto by third persons, namely, chattel mortgagees, an interpleader summons was obtained by the sheriff. Notice was then given to the sheriff by the landlord of rent due, but no distress w?s issued or anything further done on his behalf. An interpleader order was made, and the claim- ants having failed to give the security required thereby, the goods were sold pursuant to the terms of the order, the landlord becoming the purchaser. They were never removed from the demised premises. The claimants were success- ful : — Held, that the statute 8 Anne c. 14, s. 1, only applies to the goods of the execution debtor, and not to those of third persons, against whom there must be a distress, notice to the sheriff not being sufficient; and that the sheriff selling in- curred no liability, as he was secured under the interpleader order:— Held, also, that the sheriff is not liable when the goods have not been re- moved from the demised premises. The proceeds of the sale were therefore ordered to be paid out of court to the claimants. Clarke v. FarrelL 31 C. P. 584. III. Fees. 1. When Office of Sheriff is Vacant. The fees earned by a deputy sheriff while the office is vacant by reason of the death, resigna- tion, or removal of the sheriff, of right belong to the deputy himself, and neither the representa- tives of the late nor the newly appointed sheriff have any right or claim thereto. McKdlar v. Henderson, 27 Chy. 181. 733 SHIP. 734 In such a case where fees had been received by the deputy, and which the bill alleged he had in error paid over to the executors of the late sheriff, and the deputy subsequently voluntar- ily assigned all his right and clai-n to such fees -to the newly appointed sheriff, who filed a bill to compel repayment of the amounts to him, the Court allowed a demurrer for want of equity. lb. 2. Poundage. The poundage of a sheriff cannot be taken to cover more th in the risk and responsibility cast upon him when he seizes, retains, and sells goods and from this levy returns the money. If the sheriff's action be intercepted, so that he does not make this money, it is for the Court to say whit allowance shall be made him in lieu of poundage. Wadsworth v. Bell, 8 P. E. 478. — Blake. Held, Wilson, C. J. , dissenting, that a sheriff has no right to poundage upon an execution against Imds, unless there has been an actual sale. The Merchants Bank v. Campbell, 32 C. P. 170. Held, that the usual mode of computing sheriff s poundage is correct, namely, to allow six per cent, on the first $1,000, and in addition thereto three per cent, on the amount over $1,000, and under $4,000 ; and in addition thereto one and a half per cent, on the amount over $4,000. Flem- ing V. ffall, 9 P. B. 310.— Dalton, Master.— Cameron. See Morrison v. Taylor et at., 9 P. R. 390, infra. 3. Taxation of. Where a sheriff's fees have been taxed before a deputy clerk of the Crown under R. S. 0. c. 66, s. 4S, a revision of such tixation cannot take place before the princip^l Clerk of the Crown, hut the court m^y refer the bill back to the same deputy clerk for a revision of the taxation, where it appears that items have been improperly al- lowed. Hay v. Brake, 8 P. R. 120.— Osier. Held, that a sheriff's bill of fees may be taxed on notice under sec, 48 of the Execution Act, R. S. 0. c. 66, either at Toronto or in the sheriff's own count V, as the party taxing may elect. Dominion Type Founding Co., v. Nagle, 8 P. R. 174. — Armour. An execution and the judgment under which it issued were set aside on the ground of irregu- larity in obtaining the judgment: — Held, that the plaintiff was not entitled to h^ve the sheriff's bill against him taxed under R. S. O. c. fiS, s. 48, as the setting aside of the execution was not a "settlement by payment, levy, or otherwise," within the meaning of the Act, or under sec. 47, as the plaintiff was not a " person liable on any execution;"- Esld, however, th^t a sheriff, as an officer of the court claiming fees by virtue of its process, is so far within its jurisdiction that his bill may be taxed under Rule 447, O. J. Act : —Held, also, that this case, under the facts stated in the report, came within the provisions of K S. 0. c. 66, s. 45, and that therefore the sheriff was entitled to poundage. Morrison v. Taylor et al., 9 P. R. 390.— Oameroii. Per Cameron, J. That the item of $6 for tak- ing stock was improperly allowed, not being in- curred in the care and removal of the property, within the tariff. lb. SHIP. 1. Application OF Impeeial Statutes, 734. II. Owners and MoRTGAaEES, 734. III. LiABiUTT AS Carriers, 736. IV. Master, 736. V. Bills oi' Ladino —See Bills ov Lad- ing AND Warehouse RECi:iPTS. VI. Collision, 736. VII. General Average, 737. VIII. Assessment op Ships, 737. IX. Miscellaneous Cases, 737. X. Mabinb Insurance — See Insurance. I. Application op Imperial Statutes. The defendant as administratrix of her hus- band, who lost his life by the foundering of a steamer called the Waubuno, belonging to the plaintiffs, on which he was a passenger, sued the plaintiffs to recover damages under R, S. O. c. 128. The plaintiffs, who claimed limited liabiliby under sec. 54 of 25 & 26 Vict. u. 63, (Imp.) filed a bill under the Merchant Shipping Act 1854, 17 & 18 Vict. c. 104, s. 514, (Imp.) to restrain the action, and prayed that it might be determined by the court whether they were liable for loss of life or merchandise, and, if so, for what amount, and the persons entitled there- to : — Held, reversing the decree of Spragge, C. , 27 Chy. 346, that the Waubuno, not having been registered under 17-18 Vict. c. 104 (Imp.) was not a British ship within the meming of that Act, by virtue of the Statute of Canada 33 Vict, c. 128, and therefore not entitled to take ad- vantage of the limitation clause ; and that even if she were, the plaintiffs were not entitled to an injunction, as they did not admit their liability for damages to the extent mentioned in the Act, and bring into court or offer to secure the amount. The. Georgian Bay Transportation Go. v. Fisher, 5 A. R. 383. II. Owners and Mortgagees. Where certain persons, including G-., advanced money to complete building a yacht at Oobourg, in order to sail for prizes at New York and Phila- delphia, and scrip under seal was executed de- claring that G. was to hold the yacht in trust as security for the advances ; and G. incurred cer- tain running expenses in taking the yacht to the race : — -Held, that G. was entitled to a first charge on the proceeds of the sale of the yacht, for these expenses, as they had been incurred in prosecuting the enterprise for which the trust was created. Burn v. Qifford et al., 8 P. R. 44. — Taylor, ilfasier.- Proudfoot. Plaintiff was mortgagee of 64 shares in a ves- sel belonging to defendant, and on the defend- ant's insolvency was allowed by the creditors and 735 SHIP. 735 the assignee to take her as she stood at = vahia- tion. Cefendant had previously removed from the vessel a piano and seveial other articles, and had substituttd stoves for steam heaters :■ — Held, that in the absence of fraud, the plaintiff was concluded by the settlement with the assignee by which he took the vessel as she then stood, and could not recover these articles ; and that the mortgagor, being in possession, was entitled to manage the vessel as he thought best, and to remove such articles upon his substituting others for them : — Senible, that a piano on board of a vessel would not pass to a mortgagee under the words " with her boats, guns, ammunition, small arms, and appurtenances." St. John v. BuUi- vmit, 45 Q. B. 614. Semble, a mortgagee of a vessel until he takes possession or does something equivalent there- to, is not entitled to an account of the money earned by the vessel for freight, &c. ; but, where in a suit by the mortgagees of a part owner of a vessel the defendant, the owner of the other shares, admitted that he was sailing the vessel for the joint benefit of himself and the other owners — other than the plaintiffs, though pre- vious to the institution of the suit he had only asked for evidence that the agent of the plain- tiffs really held the shares for them : — Held, that the lair inference was, that the defendant was sailing for whomsoever might be the owners or entitled to the earnings ; and that having had sufficient information to acquaint him with the fact that the plaintiffs had acquired the shares either as mortgagees or owners he had thus re- cognized their i ight to demand an account. Mtr- chants' Bank v. Graham, 27 C'hy. 524. Qusere, whether co-owners of a vessel have a right to share in the profits thereof earned in ventures to which they do not assent, as a ma- jority of the owners can employ the vessel against the will of the minority, who, however, can compel the majority to give a bond to restore the vessel in safety or paj the value of their shares. In such case the minority do not share the hazard, neither are they entitled to the benefit of the voyage. Jb, One C. entered into agreements with several parties to carry freights for them at certain named prices to be paid to the defendant — not mentioning any particular vessels in which the same were to be carried — and then agreed with the defendant, as part owner and iraster of vessels in which the plaintiffs had an interest, at rates considerably below the sums agreed upon. The defendant and C. both swore that the arrange- ment had not been made by C. as agent of the defendant, but for his own benefit : — Held, that the fact of the defendant having rendered an ac- count in his own name and also sued for a portion of the freight, though aided by the other circum- stances mentioned in the judgment, was not suffi- cient to countervail the positive denials of the de- fendant and C. , that the contracts had not been made in behalf of and as a^nt for the defendant, freight being prima facie paj able to the master of a vessel, and the cargo need not be delivered by him until the freight thereof is paid ; although in any other transaction such conduct would have been strong evidence that the defendant was the principal contractor. lb. The plaintiffs who were mortgagees of a vessel, in exercise of a power of sale contained in their security, on default of payment sold the interest of their debtor by auction, when the same was bought by one who held it in trust for the mort- gagees : — Held, that the effect of such sale and purchase was, that the plaintiffs remained mort- gagees only of the interest so sold. lb. III. Liability as Caeriees. Liability of ship owner for assault and im- prisonment of passenger by purser. See Emer- son V. 'Ihe Niagara Navigation Co., 2 0. E. 528,. p. 450. Conveying travellers on Sunday. See Segina V. Daggett; Beginav. Fortier, 1 0. E. 537, p. 744. For non-performance of charter party. See McEwan v. McLeod, 46 Q. B. 235; 9 A. E. 239, p. 102. IV. Mastek. Action for work and services. — Employment of master "for the season. '' — Loss of vessel. See Ellin V. The Midland R. W. Co., 7 A. E. 464, p. 448. See Merchants' Bank v. Graham., 27 Chy. 524, p. 735. VI. Collision. On the 27th April, 1880, at port K. on lake Erie, where vessels go to load timber, staves, &c. , and where the Erie Belle, the respondent's vessel, was in the habit of anding and taking passengers, the M. C. Upper, the appellant's vessel, was moored at the west side of the dock, and had her anchor dropped some distance out in continuation of the direct line of the east end of the wharf, thus bringing her cable directly across the end of the wharf from east to west, and without buoying the same or taking some measure to inform incoming vessels where it was. The Erie Belle came into the wharf safely, and in backing out from the wharf she came in con- tact with the anchor of the M. C. Upper, making a large hole in her bottom. On a petition filed by the owner of the Erie Belle, in the maritime court of Ontario to recover damages done to his vessel by the schooner M. C. Upper, the judge who tried the case found, on the evidence, that both vessels were to blame, and held that each should pay one half of the damage.sustained by the Erie Belle. On appeal by owner of the M.C. Upper and cross appeal by owner of the Erie Belle to the Supreme Court of Canada: — Held, per Ritchie, C.J. , and Fournierand Taschereau, J J., that as the Erie Belle, being managed with care and skill, went to the wharf in the usual way, and came out in the usual way, and as the M. C. Upper had wrongfully and negligently placed her anchor (as much a part of the vessel as her masts) where it ought not to have been, and without indicating, by a buoy or otherwise, its position to the Erie Belle, the owner of the Erie Belle was entitled to full compensation, and the M. C. Upper should pay the whole of the damage. Per Strcmg, Henry and Gwyune, JJ., that the M. C. Upper had a right to have her anchor where it was, and that it was not in the line by which the Erie Belle entered and by which she could have backed out ; that the strain on the anchor chain, 737 SPECIFIC PERFORMANCE. 73& when the crew of the M. 0. Upper were hauling on it all the time the Erie Belle was at K., suffi- ciently indicated the position of the anchor, and therefore that the accident happened through no fault or negligence on the part of the M. 0. Upper. The court being equally divided, the appeal and cross appeal were dismissed without costs. McCaUum v. Odette, 7 S. C. E. 36. Vn. Gbnerax Average. ■RTiere a vessel was disabled by a gale near a lee shore, so that she could not work off, and after the anchors had dragged until she began to pound on the bottom, the master, with the view not of saving the cargo, but of enabling the crew to escape, headed her round to the shore, where she was stranded and abandoned by the crew, and the defendant, the owner of the cargo, after- wards got it out at his own expense : — Held, that the stranding was not voluntary, and that the cargo was not liable to general average. Dancey V. Bums, 31 C. P. 313. VIII. Assessment of Ships. K. resided and did business m the city of Halifax, and was owner of ships which were not registered at the city of Halifax, and which had never visited the Port of Halifax. Under the authority of 37 Vict. c. 30, sec. 1, and 27 Vict. c. 81, sees. 340, 347, 361, Rev. Stat. N. S., the assessors of the city of Halifax valued the pro- perty of K. , and included therein the value of said vessels : — Held, that vessels owned by a resident, but never registered at Halifax, and always sailing abroad, did not come within the meaning of the words ' ' whether such ships or vessels be at home or abroad at the time of as- sessment," and therefore were not liable to be . for city taxes. The City of Halifax v. y, 3 S. C. B.. 497. IX. Miscellaneous Cases. Seizure of share in ship. See Trerice v. Bur- iett, 1 O. E. 80, p. 655. Warranty as to class of ship. See LaRoche v. O'Eagan et al, 1 O. R. 300, p. 780. See WeMon v. Vaughan et ah, 5 S. O. E.. 35, p. 130. SHOPS. See Taverns and Shops. SHOET POEMS. See Deed. SIMILITER. See PLEADINa. SLANDER. See Depamation. SOCIETY. See Corporations. SOLICITOR. See Attorney and Solicitor. SPECIAL BAIL. See Bail. SPECIAL CASE. See Parliamentary Elections. SPECIAL ENDORSEMENT. See Practice. II III. SPECIFIC PEEFORMANCE. Contracts por the Sale op, or Relat- ing to Land. 1. Statute of Frauds, 738. 2. Where Contract is Conditional, 740. 3. Compensation, or Abatement of the Purchase Money, 740. 4. Pleading and Practice. (a) Parties, 740. (b) Demurrer, 741. (c) Costs, 741. 5. Enquiry as to Damages, 741. 6. Other Cases, 742. Op Acts op Parliament, 742. Op Awards, 743. IV. Op other Agreements, 743. I. Contracts for the Sale op or E elating TO Land. 1. Statute of Frauds. Although the 4th section of the Statute of Frauds requires any agreement for the purchase or sale of land to be evidenced by a note or memor- andum thereof to be signed by the party sought to be charged, yet where lands were sold by a trading corporation, under a power of sale con- tained in a mortgage, and the purchaser at such sale signed an agreement to purchase, and after- wards filed a. bill seeking specific performance with compensation for the loss of crops which were advertised with the land, but actually be- longed to third parties, and the defendants, (the corporation), answered the bill admitting the fact of their being mortgagees, and proceeded with sundry statements such as, ' ' when the plaintiff bid for and was declared the purchaser of the lands * * the sum bid by the plaintiff 47 739 SPECIFIC PERFORMANCE. 740 was a low price * * 'that the plaintiff was not in fact the real purchaser of the lands at the said sale * * that the company was not bound to put the plaintiff in possession, but never did any act to prevent her taking possession, and * * that possession was taken by the plaintiff," and the answer claimed no benefit from the stat- ute, and did not deny having made the contract ; neither did it raise any objection to the want of the corporate seal : — Held, that this sufficiently admitted the agreement to sell and no protection of the statute having been claimed, that the plain- tiff was entitled to a decree, with compensation for the loss of the crops, with costs. Cleaver v. The North of Scotland Canadian Mortgage Co., 27 Chy. 508. ' The defendant in 1871 wrote to his son who had left home to work for himself, that if he would return he would give him 50 acres of his farm and a share of the cattle and sheep when the plaintiff got married, but if he stayed away he would sacrifice his own and his father's in- terests. Upon receipt of the letter the plaintiff returned and remained on the farm working it with his father, except at certain times when he went away to work for wages for himself. It was proved that the father had pointed out the 50 acres which he intended to give his son, and the son entered and erected a house thereon with his father's approval, and occupied it with his family, he having married in 1879 : — Held, that the plaintiff was entitled to specific performance of this agreement. Oarson v. Oarson, 3 0. R., C. P. D. 439. A., whose wife owned a certain freehold property on St. George's street, wrote to B., the owner of a certain leasehold property on King street, with reference to the said proper- ties, as follows, "If you will assume my mort- gage, and piy me in cash, ^3,700, I will assume your mortgage of |5,000 on the leasehold, and B. replied, "Your offer of this date, for the ex- change of my property on King street for your property on St. George street, I will accept on your terms :" — Held, affirming the judgment of Ferguson, J., 2 0. R. 609, not a sufficient memo- randum of the contract to satisfy the Statute of Frauds. Armour, J., doubting. Held, also, in an action for specific performance of the above contract by B. , correspondence between the so- licitors of the parties of date subsequent to the date of the above letters, as also the requisitions respecting title which passed between the soli- citors, were inadmissible in evidence. Held, .further, the fact that A. 's wife had signed a con- veyance of the land in question toB., which con- veyance had never been delii^ered, and did not, by recital or otherwise, set forth the contract re- lied on, could not assist B. in the action for specific performance. McOlung v. McUrachm ■etux., 3 0. E., Q. B. D. 596. The decree of the Court of Chancery, 28 Chy. •207, affirmed on appeal with costs. In letters written by the solicitor of a purchaser of land sold at auction it was stated that the advertise- ment of sale had represented that twenty acres of the land purchased from the defendant had been cleared and fenced, whilst the fact was no fencing whatever remained on the premises, and by reason thereof claimed compensation, and in his answers thereto the defendant did not deny the fact of sale and purchase, but disputed the right to compensation : — Held, a sufficient ad- mission of the fact stated to take the case out of the Statute of Frauds, although no cgntract of sale had been signed by the vendor. Stammers V. O'Donohoe, 8 A. R. 161. Affirmed by the Supreme Court. See 20 C. L. J. 260. See HalUran v. Moon, 28 Chy. 319, p. 743 ; Carroll v. Williams, I 0. R. 150, p. 406. 2. Where Contract is Conditional. See Cameron v. Wellington, Grey amd Bruce S. W. Co., 28 Ohy. 327, p. 674. 3. Compensation or Abatement of the Purchase Money. Although a vendor is allowed great latitude in the statements or exaggerations he may make as to the general qualities and capabilities of land he is about to offer for sale, still he will not be permitted to make direct misstatements and misrepresentations as to matters of fact which would naturally have the effect of inducing par- ties resident at a distance to bid for the property. Therefore, where an advertisement of property about to be sold described it as being " a farm of 81J acres, 20 acres cleared and fenced," on the faith of which the plaintiff purchased, when in fact there was not any clearing or fencing made upon the premises, the court (Blake, V.C.) in pronouncing a decree for specific performance at the instance of the purchaser, directed a refer- ence to the master to make an allowance in res- pect of the m itters misrepresented, and ordered the vendor to pay the costs of the suit. Stam- mers V. O'Donohoe, 28 Chy. 207 ; see S. 0. in appeal, 8 A. R. 161, supra. An owner of real estate who alone enters into an agreement to sell will be required t > procure a bar of his wife's dower or abate the purchase money in the event of her refusal ; Van Xorman V. Beaupre, 5 Chy. 599. Loughead v. Stubbs, 27 Chy. 387. See Cleaver v. The North of Scotland Canadian Mortgage Co., 27 Chy. 508, p. 739; Carroll y. Williams, 1 0. R. 150, p. 406. 4. Pleading and Practice. (a) Parties. When his wife joins with the owner of real estate in the contract of sale, and the purchaser institutes proceedings to compel specific perform- ance thereof, the wife must be joined as a party defendant ; and the fact that the bill alleges that her only interest is that of an inchoate dowress forms no ground for dispensing with her being so joined. Loughead v. Stubbs, 27 Chy. 387. '^^Tiere the owners of the property in an action for the specific performance of a sale of land, were married women, and their husbands were joined as co-plaintiffs, and the defendant demur- red ore tenus, on ground of misjoinder of parties, leave was given to amend by making the hus- bands defendants, or by adding next friends for the married women as co-plaintiffs. Toung «t \ al. V. Robertson, 2 0. E., Chy. D. 434. 741 SPECIFIC PERFORMANCE. 742 See Cameron v. Wellington, Orey and Bnice i?. W. Co., et al. 27 Chy. 95, p. 622; In re Trekven and Horner, 28 Chy. 624, p. 776 ; Car- roll -v. Williams, 1 0. R. 150, p. 406 ; Roberts' y. Hall, 1 0. R. 388, p. 743. (b) Demurrer. Where a demurrer is raised to a statement of ■claim for specific performance on the ground of no sufficient agreement, it is enough if in any aspect of the case, the plaintiff may be entitled to some relief. In this case it was held, on the .-statement of claim set out in the report, that a <;onoluded contract was shewn, and that defend- ant was liable. Misjoinder of parties is, since the Judicature Act, no longer a ground for de- murrer. Young et al. v. Robertson, 2 0. R., Ohy. D. 434. (c) Costs. Whatever may be the rule in England, this court has maintained jurisdiction to make a de- fendant pay costs in a suit for specific perform- ance, though the bill be dismissed, if the circum- stances be such as to warrant doing this. Hence, in such a suit, brought by the purchasers of cer- tain lands, against the vendors and a subsequent purchaser. Where the judge of first instance dismissed the action without costs, but gave the subsequent purchaser his costs against his co- defendants, although no issue was raised between the defendants : — Held, that he had jurisdiction to make the order, in his discretion, and having exercised such discretion, this court would not interfere, McMahon v. Barnes, Order Book No. % fol. 730, (not reported,) followed. Church v. Fuller et al, 3 0. R.,Chy. D. 417. In a suit for specific performance, the defen- ■dant set up that the reason he had refused to complete the agreement was, that he had been induced to enter into it by certain misrepresenta- tions of the plaintiff, but which he entirely failed in proving. Although the master reported that a good title was first shewn in his ofiBce, the de- cree on further directions ordered the costs to be paid by the defendant, notwithstanding that the bill contained certain statements which, it was alleged, were not true, and had not been proved, the court being of opinion that such statements had not any material bearing upon the case, and that a suit would have been necessary without reference to the question of title. Piatt v. Bliz- mrd, 29 Chy. 46. See Stammers v. O'Donohoe, 28 Chy. 207, p. 740 ; Rutherford v. Sing, 29 Chy. 5U, p. 742. 5. Enquiry as to Damages. On a bill filed to rescind a contract for the sale of land, the defendants asked by way of cross relief to have the same specifically per- formed. On a re-hearing the divisional court refused specific performance or rescission, but, having regard to the finding of the judge at the trial, that no actual fraud had been proved against the defendant the purchaser, though it appeared that to a certain extent he had over- reached the plaintiff, an old woman, when mak- ing the contract, they ordered a reference, under Casey v. Hanlon, 22 Chy. 225, to ascertain the amount, if any, of the defendant's damages. The master at Orangeville found defendant entitled to 111.05, his costs of investigating the title, but refused to allow him $1000, which was the dif- ference between the contract price and the value of the land. On appeal, Boyd, C, confirmed the maater',s report. Oough v. Bench, 9 P. R. 431. 6. Other Cases. In a suit at the instance of a vendor of land for the specific performance of an agreement to sell, the defence raised was, that the land was agreed to be conveyed free from incurrtbrances, but the same was subject to tha doWer of oneM. and to a mortgage, and therefore that a, good title could not be shewn. It was satisfactorily shewn that the dower had been sufficiently barred, and the report of the master stated that the price agreed to be paid for the land was 13500; that $1800 was due on the mortgage, and that the purchaser had paid only $100 on account of his purchase, "and that the non-completion of the contract (was) attributable to the desire of the purchaser to recede from the contract," The defendant, down to the bringing of the de- cree into the master's office, had not demanded any abstract or made any objection to the title : the court, on further directions, made a decree ordering defendant to specifically carry out the agreement, and pay to the plaintiff the general costs of the cause. Gh-aJiam et al. v. Stephens, 27 Chy. 434. In a suit for specific performance it was shewn that the plaintiff had agreed to convey to the defendants certain lands in consideration of his being paid one-third of the sum for which defen- dants should be enabled to sell the same. This agreement was subsequently cancelled on the defendants undertaking to pay plaintiff $2000, one-half by a note, the other half by the convey- ance of certain town lots at an ascertained valu- ation ; and this second or substituted agreement the plaintiff sought to enforce. The defendants set up that in consequence of their ascertaining that plaintiff had not a title to the land conveyed to them, a fresh agreement was entered into to the effect that the defendants should be at liberty to sell the land, and pay to plaintiff one- third of the net proceeds, and which they asserted they had done. At the hearing the court (Spragge, 0.,) being satisfied that the de- fendants' account of the transaction was correct, refused the relief claimed, but offered the plain- tiff a reconveyance on payment of costs, which the defendants assented to, or a decree upon the footing of the third or last mentioned agreement upon payment of costs : On rehearing, this de- cree was affirmed with costs. Rutherford v. Sing, 29 Chy. 511. A writ of arrest will not be granted against the purchaser in a suit for specific performance, unless it be shewn by affidavit that the vendor's lien is insufficient. Nelson v. Dafoe, 8 P. R. 332. — Proudfoot. II. Or Acts op Pabliambnt. See Attorney General v. Intemalkmal Bridge Co., 6 A. R. 537, p. 343. Z43 STATUTES. ni III. OfAwabds. Held, affirming the decree of Proudfoot, V.C, that the plaintiff was entitled to specific perform- ance of an award giving him damages for hia lands taken by the defendants ; that the sum awarded was not so excessive as to shew any fraudulent or improper conduct on the part of the arbitrators, and — Qusere, whether if shewn it would be a defence in such a proceeding. Hor- vall V. The Canada Southern R. W. Co., 5 A. B. 13. IV. Of other Agreements. The court will enforce a verbal agreement, although it is to do an act which is not to be performed within a year from the time of making the agreement where the consideration therefor has been executed. HaUeran v. Moon, 28 Chy. 319. When a father enters into a contract" whereby he parts with the custody and control of his child with the bona fide intention of advancing 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, yet where the contract has been faithfully per- formed, so far as the father and child are con- cerned, 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. E., Chy. D. 388. When the parents of the plaintiff agreed with H. and his wife to give up to them their daughter, the plaintiff, then six years old, to bring up as their own, and make her sole heiress of their property at their death, and when it appeared that the agreement was bona fide in- tended by the father for the ultimate benefit of the plaintiff, and that the plaintiff had remained with H. and his wife for twenty years, rendering them efficient service, and it appeared H. in- tended her to have hia property, and regarded the agreement as binding, so that he considered it unnecessary to make a will ;^— Held (reversing the judgment of Ferguson, J.), that the agree- ment could be enforced against H. 's representa- tive, and that it must be decreed accordingly : — Held, also (aflSrming the judgment of Perguson, J. ), that inasmuch as if the parents of the plain- tiff iad brought a, suit upon the agreement in this case and recovered they would be trustees for the proceeds for her, the plaintiff might main- tain the suit in her own name. lb. Held, that the votes of registered bondholders of a railway having been rejected, the arrange- ment made in this case, though confirmed by two- thirds of the actual shareholders present, or re- presented, was nevertheless not properly con- lirmed within the meaning of the statute, and an action to compelspecific performance of theagree- ment was dismissed. Hendrie v. The Grand Trunk R. W. of Canada -The Grand Trunk R. W. Co. of Canada v. Tlie Toronto Grey, and Bruce R. W., 2 0. R., Chy. D. 441. This case has been carried to appeal. See Cameron v. Wellington, Cfrey and Bruce R. W. Co. et al, 28 Chy. 327, p. 674; Calvert v. Burnham, 6 A. R. 620, p. 722. SPEEDING CAUSE. See Pkactice. SPIRITUOUS LIQUORS. See Canada Temperance Act, 1878— Taverns. AND Shops. SQUARE. See Dedication. STAKEHOLDER. See Hutton v. Federal Bank, 9 P. R. 568, p. 69. STAMPS. I. On Bills or Notes— /See Bills oe Ex- change AND Promissory Notes. II. Law Stamps — See Law Stamps. STATEMENT OF CLAIM. See Pleading. STATEMENT OF DEFENCE, See Pleading. STATUTE LABOUR. See Assessment and Taxes. STATUTES. I. Construction, 744. II. Prospective and Retrospective, 745- III. Repeal, 745. . IV. Imperial Enactments — See Constitu- tional Law. V. British North America Act, 1867 — iSee Constitutional Law. VI. Statute of Frauds — See Frauds (Statute of.) VII. Of Limitations — See Limitation or Actions and Suits. VIII. Of Mortmain — See Will. IX. Particular WTords — See Words anD' Terms. I. Construction. In penal statutes questions of doubt are to be- construed favourably to the accused. North Ontario, Election (Ont.) — McCaskill v. Paxton, 1 H. B. G. 304. 745 SUPREME COURT. 746 Held, following Eastern Counties, &c., R. W. •Co. V. Marriage, 9 H. L. Ca. 32 ; Lang v. Kerr, L. B. 3 App. Cas. 529; and Van Norman v. Grant, ■27 Cliy. 498, that both ss. 10 and 11 of R. S. 0. «. 49, are to be goveraed by the heading imme- diately preceding sec. 10 ; so that where the interest sought to be reached by the creditor has not been concealed by a fraudulent conveyance, ■the Judge has no authority to give summary re- lief under sec. 11. Wood v. Hurl, 28 Chy. 146. Remarks as to embracing in one Act several subjects which are not expressed in the title ; and as to the effect of the title and preamble of a statute as guides to the construction. Megina V. WasJdngton, 46 Q. B. 221. . II. PROSPECTIVK and RBTROSPBOirVB. Prospective. See Martindale v. Clarhson, 6 A. R. 1, p. 228. Retrospective. See Oooper v. Kirlcpatrich, 8 V. R. 248, p. 56 ; Ferguson y. Miglish and Scottish Investment Co., 8 P. R. 404, p. 475; ■Sanders v. MaMmrg, 1 0. R. 178, p. 776. III. Repeal. See. 217 of 29-30 Vict. c. 51 has not been re- pealed though marked effete in the schedule pre- fixed to and not re-eiiacted in 36 Vict. c. 48 0. Scottish American Investment Co. v. Corporation of Elora, 6 A. K. 628. Effect of repeal of Stamp Act. See Caughifi ■V. Clarke, 9 P. R. 471, p. 74. See Brock v. The Corporation of the City of Toronto, 45 Q. B. 53, p. 490. See Bankbuptcy and Insolvency II. , 3, p. 56. STATUTORY CONDITIONS. See Insurance. STAYLNC PROCEEDINGS. See Practice. STOCK AND STOCKHOLDERS. Supreme Court Act, limited his appeal to the question of jurisdiction, and the Supreme Court- held that Mr. Justice McCord had jurisdiction, and it was ordered that the recordTje transmitted to the proper officer of the lower court, to haves ' the said cause proceeded with according to law. The record was accordingly sent to the protho- notary of the Superior Court at Montmagny. Mr. Justice McCord, after having oflered the counsel of each of the parties a re-hearing of the case, proceeded to render his judgment on the: merits and declared the election void. The re- spondent then appealed to the Supreme Court, and contended that Mr. Justice McCord had no- jurisdiction to proceed -with the case: — Held, that the Supreme Court on the first appeal could not, even if the nppeal had not been limited to the question of jurisdiction, have given a decision on the merits, and that the order of this court- remitting the record to the proper officer of the court below to be proceeded with according to- law, gave jurisdiction to Mr. Justice McCord to- proceed with the case on the merits, and to pro- nounce a judgment on such merits, which latter- judgment was properly appealable under sec. ii^ of the Supreme Court Act (Fournier and Henry, JJ., dissenting). Belleehasse Election, (Dom.) — Larue v. Deslauriers, 5 S. 0. E. 91. L. , appellant, sued E. , the respondent, betore the Superior Court at Arthabaska, in an action of damages (laid at |10,000) for slander. The judgment of the Superior Court awarded to thei appellant a sum of |1,000 for special and vindic- tive damages. E. appealed to the Court of Queen's Bench (appeal side), and L., the present appellant, did not ask, by way of cross appeal, for an increase of damages, but contended that, the judgment for ^1,000 should be confirmed. The Court of Queen's Bench partly concurred in the judgment of the Superior Court, but differed as to the amount, because L. had not proved special damages, and the amount awarded was reduced to fSOO, and costs of appeal were given against the present appellant. L. thereupon ap- pealed to the Supreme Court : — Held, Taschereau, J., dissenting, that L., the plaintifij although respondent in the court below, and not seeking in that court by way of cross appeal an increase- of damages beyond the |1,000, was entitled to appeal, for in determining the amount of thei- matter in controversy between the parties, the 749 SUPREME COURT. 750 proper course was to look at the amount for which the declaration concluded, and not at the amount of the judgment. Joyce v. Hart, 1 S. C. R. 321, reviewed and approved. Levi v. Reed 6 S. C. R. 482. See The Connecticut Mutiial Life Ins. Co. of Hartford v. Moore, 6 App. Cas. 644, p. 505. 2. Leave to Appeal. The Chief Justice of the Supreme Court, under see. 6. of the Supreme Court Amendment Act of 1879, allowed an appeal direct to the Supreme Court of Canada, it being known that there were then only two judges on the bench in Manitoba, the plaintiff (Chief Justice), and Dubuo, J., from whose decree the appeal was brought. Schultz V. Wood, 6 S. C. R. 585. See also Neillv. Travellers' Ins. Co., 9 A. R. 54. 3. Bond and Security. The delay being the act of the court, the time for filing the bond must count from the granting of leave to appeal, as no delay took place in applying for such leave. McCrae v. White, 9 P. K. 288.— Patterson. The following certificate was filed with the printed case, as complying with Rule 6 of the Supreme Court Rules : " VVe, the undersigned, joint prothonotary for the Superior Court of I,ower Canada, now the Province of Quebec, do hereby certify that the said defendant has de- posited in our office, on the twentieth day of November last, the sum of five hundred dollars" as security in appeal in this case, before the Supreme Court, according to section (31) thirty- first of the Supreme Court Act, passed in the thirty-eighth year of Her Majesty, chapter second. Montreal, 17th January, 1878. Signed, Hubert, Honey & Gendron, P. S. C. " Held, on motion to quash appeal, that the deposit of the sum of $500, in the hands of the prothonotary of the court below, made by appellant, without a certificate that it was made to the satisfaction of the court appealed from, or any of its judges, was nugatory and ineffectual as security for the costs of the appeal. Per Taschereau, J., the case should be sent back to the court below in order that a proper certificate might be obtained. Macdonald v. Abbott, 3 S. C. R. 278. See The Citizens' Ins. Co. C. P. 492, p. 175. V. Parsons et al., 32 4. Setting down Cause. On a motion to quash the appeal on behalf of the respondent, on the ground that the appellant had not, within three days after the Registrar of the court had set down the matter of the peti- tion for hearing, given notice in writing to the respondent, or his attorney or agent, of such setting down, nor applied to and obtained from the judge who tried the petition further time for giving such notice, as required by the 48th sec- tion of the Supreme and Exchequer Court Acts : — Held, that this provision in the statute was im- perative ; that the giving of such notice was a j condition precedent to the exercise of any juris- diction by the Supreme Court to hear the appeal ; that the appellant having failed to comply with the statute, the court could not grant relief under Rules 56 or 69 ; and that, therefore, the appeal could not be then heard, but must be struck off the list of appeals, with costs of the motion. Subsequent to this judgment, the ap- pellant applied to the judge who tried the p'^+i- tion, to extend the time for giving the notice, vi'hereupon the said judge granted the applica- tion and made an order, " extending the time for giving the prescribed notice till the 10th day of December then next." The case was again set down for hearing at the February session follow- ing, being the nearest convenient time, and notice of such setting down was duly given within the time mentioned in the order. The respondent thereupon moved to dismiss the appeal, on the ground that the appellant unduly delayed to prosecute his appeal, or failed to bring the same on for hearing at the next session, and that the judge who tried the petition had no power to extend the time for giving such notice after the three days from the first setting down of the case for hearing by the Registrar of this court : — Held, that the power of the j udge who tried the peti- tion to make an order extending the time for giving such notice is a general and exclusive power to be exercised according to sound discre- tion, and the judge having made such an order in this case, the appeal came properly before the court for hearing. (Taschereau, J., dissenting. ) North Ontario Election (Dom.) — Wheeler v. Qibbs, 3 S. C. R. 374. 5. Cross Appeal. An appellant in the Court of Queen's Bench, Quebec, who had partly succeeded, appealed to the Supreme Court on the ground that the judg- ment was yet excessive. At the same time the respondent appealed on the ground that the judg- ment of the superior court ought to have been affirmed . This second appeal was treated by the court as a cross-appeal under the Supreme Court rules, and the respondents on the second appeal_ having succeeded in getting the judgment re- versed on the second point and confirmed on the first point, were allowed costs of a cross-appeal. Pilon et al. v. Brunei, 5 S. C. R. 318. 6. Amendment of Pleadings. D. McM. the respondent, sued S. W. B. Co. , the appellants to recover damages alleged to have been sustained by reason of the obstruction of the river Miramichi by appellants' boom. The pleas were not guilty, and leave and license. On the trial the counsel proposed to add a plea, that the wrong complained of was occasioned by the extraordinary freshet. The counsel for the re- spondent objected on the ground that such plea might have been demurred to. The learned judge refused the application, because he inten- ded to admit the evidence under the plea of not guilty. On appeal, the counsel for the appellant contended that the obstruction complained of was justified under the statute 17 Vict. c. 10, N. B., incorporating the Southwest Boom Company : — ■ Held, that the appellants, not having put in a plea of justification under the statute, or ap- plied to the Supreme Court of Kew Brunswick in banco for leave to amend their pleas, could 751 TAVERNS AND SHOPS. 752 not rely on that ground before this court to re- verse the decision of the court below. The South- west Boom Co. V. McMillan, 3 S. 0. E. 700. See also Moore v. The Connecticut Mutual Ins. Co. of Hartford, 6 S. C. K. 634. 8. Costs. Held, that appellants, not having tendered ■with their plea costs accrued up to and inclusive of its production, should pay to the respondent the costs incurred in the court of first instance. ^tna Life Ins. Co. v. Brodie, 5 S. C.R. 1. On appeal to the Court of Appeal the judg- ments of the Court of Chancery in favour of the plaintiffs respectively, were affirmed with costs of appeal ; and the defendants appealed to the Supreme Court. In the first case tj&at court gave leave to the defendants (appellants) to amend their answer, saying nothing as to costs, and upon such amendment being made, declared that the award upon which the bill had been filed should be null and void, but said nothing about costs. In the second case the Supreme Court ordered a new trial to be had between the parties, -B-ithout costs to either party. The plaintiffs having obtained orders of the Court of Chancery making the certificates of the Court of Appeal, of the judgments in appeal, orders of the Court of Chancery, issued executions thereon for the costs awarded in appeal : — Held, that the plaintiffs were not entitled to the costs of the appeal to the Court of Appeal, and the exe- cutions were set aside. Norvall v. Canada Soutliern R. W. Co — Ctmningham v. Canada Southern R. W. Co., 9 P. R. 339. — Proudfoot. — FuU court. See Pilon et al. v. Brunei, fi S. C. R. 318, p. 750. SURETY. See Principal and Surety. SURRENDER. I. Of Leases — See Landlord and Ten- ant. II. By Bail— S-ee Bail. SURROGATE COURT. See Re O'Brien; 3 0. R. 326, p. 267. SURVEY. See Statute as Limitations. In questions relating to boundaries anddescrip' tions of lauds, the well established rule is, that the work oil the ground governs ; and it is only where the site of a monument on the ground is incapable of ascertainment that a surveyor is authorized to apportion the quantities lying be- tween two defined or known boundaries. There- fore, where an original monument or post was planted as indicating that the north-west angle of a lot was situated at a distance of half a chain south therefrom, and another surveyor had actu- ally planted a post at the spot so indicated, and subsequently two surveyors, in total disregard of the two posts so planted, both of which were easy of ascertainment, made a survey of the lo- cality and placed the post at a dififereut spot : — The court (Spragge, C.) disregarded the survey, and declared the north-west angle of the lot to be as indicated by the first mentioned monument. Artlev V. Gurry. 29 Chy. 243. A surveyor in making a survey is under no statutory obligation to perform the duty, but undertakes it as a matter of contract, and is liable only for damages caused by want of rea- sonable skill, or by gross negligence. The de- fendant, a provincial land surveyor, who was employed by the plaintiffs to run certain lines for road allowances, proceeded upon a wrong principle in making the survey, and the plain- tiffs sued him for damages which they had paid to persons encroached upon by opening the road according to his survey : — Held, reversing the judgment of the Common Pleas, (31 C. P. 77,) that the plaintiffs could not recover, as although the survey was made by the defendant on an er- roneous principle, the evidence failed to prove that the lines as run by him were not correct. Qufere, per Patterson, J. A., whether the fact that the plaintiffs knew that the correctness of the survey was questioned before the opening the road, did not make them guilty of contribu- tory negligence. Remarks upon the impro- priety of receiving the opinions of surveyors as experts, • as to the proper mode of making a survey under a statute. Corporation of the Towa- ship ofStaiford v. Bell, 6 A. R. 273. Expense incurred for surveys and other spe- cial work of that nature, made in order to qualify witnesses (surveyors) to give evidence are not taxable between party and party, the English Chancery Order 120 (1845) not being in force here. McOannon v. Clarke, 9 P. R. 555.— Boyd. Compensation forimprovements inconsequence of unskilful survey. See Plumb v. Steinhoff, 2 0. R. 614, p. 332. SURVEYOR. See Survey. TAVERNS AND SHOPS. I. Legislative Authority, 753. IL Supplying Liquor aptbr Notice, 753. III. Selling Liquor without License. 1. Who Liable, 753. 2. Convictions, 753. MiscELLAiJKOus Cases, 754. Canada Temperance Act — See Canada Temperance Act, 1878. Open Taverns and Treating on Elec- tion Days — See Parliamentary Elections. IV. V, VI, 753 TAVERNS AND SHOPS. 754 I. Legislative Authority. See Re.gina v. Hodge, Begina v. Frawley, 46 ■Q. B. 141, 153 ; 7 A. E. 246 ; 9 App. Gas. 117, p. 120. II. Supplying Liquor aitbe Kotice. The plaintiff, whose husband was in the habit of drinking intoxicating liquors to excess, gave notice to the defendant, a duly licensed inn- keeper, forbidding him to supply liquor to her husband ; in consequence of which the defen- dant forbade his bar-keeper (his son) furnishing liquor to the husband, but the bar-keeper not- withstanding did serve the plaintifif's husband with liquor in the tavern kept by defendant. R. S. 0. c. 181, s. 90, enacts that if the person «o notified delivers or suffers to be delivered any •such liquors to the person named in the notice, the person giving such notice may recover from him not less than |20, nor more than $200, to be assessed by the court or jury as damages : — Held, that defendant was liable. Hugill v. Merrifield, 12 C. P. 264, overruled. Aiistin v. Davis, 7 A. R. 478. III. Selling Liquor without License. 1. Who liable. A married woman was lessee of certaiu pre- mises in which her husband sold liquor without a license, contrary to the provisions of R. S. 0. -c. 181 : — Held, that she was liable to be fined under s. 83 of the Act, although the sale of liquor took place in her absence. Regina v. Campbell, 8 P. R. 55.— Hagarty. The defendant, a servant of one Ward, the keeper of an unlicensed tavern, was convicted of selling liquor in her master's absence. Oamerop, -J., held the conviction good, the case being un- distinguishable in principle from egina v. Wil- liams, 42 Q. B. 462, though he would otherwise have held the master alone responsible, under the Liquor License Act, R. S. O. u. 181, Regina •V. Howard, 45 Q. B. 346. 2. Convictions. Section 51 of the Liquor License Act, E. S. 0. c. 181, which imposes the penalties, omits all reference to a third offence (which was provided for in the enactments of which it is a consoli- -dation), though such an offence is referred to in sec. 73, which deals with the procedure, and in the forms of conviction given by the Act. A conviction for a third offence was therefore quashed, although the penalty imposed thereby might have been inflicted for a second offence. Megiiia v. Frawley, 45 Q. B. 227. The defendant was licensed to sell " in and upon the premises known as the Palmer House." The Palmer House stood upon the front pare of a deep lot owned by the defendant, the rear part ■of which had been for many years enclosed and used as a fair ground, immediately within which enclosure the defendant sold liquor, for which he was convicted:— Held, that as the fair ground, though part of the lot on which the hotel stood, was not used in connection with or for the en- 48 joyment of the hotel, it was not covered by the license, and the conviction was right. Regina V. Palmer, 46 Q. B. 262. A certiorari will not lie to remove a conviction under "The Liquor License Act," R. S. O. e. 181, s. 48, which has been affirmed and amend- ed on appeal to the sessions, for issuing a license contrary to the siid Act, the procedure being regulated by 32-33 Vict. c. 31, s. 71, D, as amended by 33 Vict. c. 27, s. 2, D. Regina v. Grainger, 46 Q. B. 196. The court refused to quash a conviction under the Liquor License Act affirmed on appeal, on the ground among others, that the general ver- dict of guilty was inconsistent with the answers of the jury to specific questions. Regina v. Grainger, 46 Q. B. 382. Defendant was convicted for a third time of having sold liquor without a license, and was sentenced to three months' imprisonment with hard labour : — Held, following Regina v. Fraw- ley, 46 Q. B. 153, that the magistrate had not power to impose hard labour, and the conviction was therefore invalid. Regina v. Allhright, 9 P. R, 25. — Osier. Overruled by Tlie Queen v. Hodge, 9 App. Gas. 117, p. 120. Semble, that in such a case a judge has no power to amend the conviction under R. S. O. c. 181, s. 77, as amended by 44 Vict. c. 27, by striking out the part imposing hard labour, lb. Defendant was convicted for selling liquor without a license on Dickinson's Island, in Lake St. Francis : — Held, on an application for a cer- tiorari, 1. That the island was part of the county of Glengarry, and therefore within the jurisdic- tion of the police magistrate. 2. That the Liquor License Act applies to Indian land under lease from the crown to a private individual. 3. That only the holder of a license cm be prosecuted under see. 43 of the above Act, for seUing liquor on prohibited days. Regina v. Duquette, 9 P. R. 29— Osier. IV. Miscellaneous Oases. The defendant and his brother were carrying on business as Booth Bros., and had a license ia the name of the firm to sell intoxicating liijuors. Before the nomination of members of the Park- dale council the defendant, with the consent of the license commissioners, transferred his interest in the license to his brother, in order to qualify as a councillor, but the business continued as before :— Held, affirming the decision of the master in chambers, that a license cannot law- fully be transferred except in the cases mention- ed in R. S. 0. c. 181, s. 28; none of which had occurred here : that the consent of the commis- sioners did not validate the transfer, and there- fore that the defendant, who retained his interest in the license, was not qualified to be a coun- cillor. Per Armour, J. The Act disqualifying a licensee should be construed strictly, and should not be extended to the partner of a per- son lawfully holding a license in his own nanie. Regina ex rel. Brine v. Booth, 3 O. R. , Q- B. D. 144 ; 9 P. R. 452. See also, Regina ex reL Clancy v. Conway, 46 Q. B. 85, p. 480. See Roberts v. Climie— Murphy v. Olimie, 46 Q. B. 264, p. 205. 755 TIMBER 755 TAXATION OF COSTS. See Costs. TAXES. I. Municipal — Se<". Assessment and Taxes. II. On Sale oe Land — See Sale oe Land — See Sale op Land by Obdeb of the COUKT. TELEGRAMS. Procluction of — See South Oxford Election inr,t.)—Hoplcins v. Oliver, 1 H. E. C. 243, p. 570. TEMPEEANCE ACT. See Canada Tempeeance Act, 1878. TENANT. See Estate. Of Deed - TENDER. 1 Sale of Land by Obdeb of the Court. TERMS. See WoBDs and Teems. TERM'S NOTICE. See Pbactice. TIMBER. I. Sale of, 755. II. Damages, 758. III. Crown Timber— 5ee Crown Lands. IV. Floating Timber — See Water and Water Courses. V. Ejeplbvin — See Replevin. I. Sale of. The first of three mortgagees having filed a bill for sale, the other two proved their claims in the suit. No one redeemed by the day appointed, but a final order for sale was not taken out, be- cause one v., who had purchased the equity of redemption, was negotiating with S. the third mortgagee. During these negotiations V. cut and sold a large quantity of the timber on the land to G., whereupon S. filed a bill praying payment by G. of the price of the timber, which had not yet been paid over: — Held, aflSrmingthe Master's ruling, that the first mortgagee was entitled to it. Scott V. Vosburr/, 8 P. R. 336— Proudfooi. C. , after having examined a lot, entered into- an agreement with W., the owner, whereby the latter sold all the pine timber standing on the lot to C. , " svich as will make good merchantable wan ey edged timber, suitable for his purpose, at the rate of |13 per hundred cubic feet," and C. paid to W. 1 1,000, " the balance to be paid for before the timber is removed from the lot." C. cut $651. 17 worth of first-class timber, suitafela for the Quebec market which was all of that class to be found on the lot, and sued W. to re- cover back the balance of the |1,000, namely, $348.83 : — Held, that the true construction of the contract was that W. sold and granted to C. permission to enter xipon his lot, and cut all the " good merchantable timber there growing, suit- able for his purpose," and not merely "first class timber," that there was more than sufficient " good merchantable timber" still re- maining on the lot to cover the balance of th& |i,000, and that there was no evidence to shew that the contract had been rescinded Per Taseh- ereau and Gwynne, JJ., that the payment of the 11,000 was an absolute payment, the plaintiff be- lieving and representing to defendant that there was sufficient .timber to cover that amount, if not more, on the faith of which representation de- fendant entered into the contract, which he other- wise would not have done, and that if the plain- tifi' made an error, he, and not the defendant, must suffer the consequences of this error. Clarice, v. White, 3 S. C. E. 309 ; 28 C. P. 293. The respondents, owners of timber lands in New Brunswick, granted C. & S. a license to cut lum- ber on twenty-five square mUes. By the hcense it was agreed inter alia : ' ' Said stumpage to be paid in the following manner ; Said company shall first deduct from the amount of stump- age on the timber or lumber out by grantees on this license as aforesaid, an amount equal to- the mileage paid by them as aforesaid, a.id the whole of the remainder, if any, shall, not later than the 15th April next, be secured by good endorsed notes, or other sufficient security, to be approved of by the said company, and payable on the 15th July next, and the lumber not to be removed from the brows or landings tUl the stumpage is secured as aforesaid. And said com- pany reserves and retains full and complete ownership and control of all lumber which shall be cut from the aforementioned premises, where- ever and however it maj' be situated, until all matters and things appertaining to or connected with this license shall be settled and adjusted, and all sums due or to become due for stumpage or otherwise, shall be fully paid, and any and all damages for non-performance of this agreement, or stipulations herein expressed, shall be liqui- dated and paid. And if any sum of monejr shall have become payable by any one of the stipula*- . tionS or agreements herein expressed, and shall not be paid or secured in some of the. modeEf herein expressed within ten days thereafter, then in such c?se, said company shall have fuU power 757 TIMBER. and anthonty to take aU or any part of said lumber wherever or however situated, and to absolutely seU and dispose of the same either at private or pubhc sale, for cash ; and after de- ducting reasonable expenses, commissions, and all sums which may then be due or may become due from any cause whatever, as herein expressed the balance, if auy there may be, they shall pay over on demand to said grantees, after a reason- able time for ascertaining and liquidating all amounts due, or which may become due, either as stumpage or damages," For securing the stumpage payable to respondents under this hcense C. & S. gave to the respondents a draft upon J. & Co., which was accepted by J. & Co and approved of by the respondents, but which was not paid at maturity. After giving the draft C. & S. sold the lumber to J. & Co., who knew the lumber was cut on the plaintifif 's laud under the said agreement. J. & Co. failed, and appel- lant, their assignee took possession of the lumber and sold it :— Held, per Strong, Taschereau and Gwynne, JJ. (affirming the judgment of the court below), Ritchie, 0. J., and Fournier and Henry, JJ., dissenting, that upon the case as submitted, and by mere force of the terms of the agreement, the absolute property in the lumber in question did not pass to C. & S. immediately upon the receipt by the company of the accepted draft of C. & S. on J. & Co., and that appellant was liable for the actual payment of the stump- age. McLeod V. The New Brunswick M. W. Co , 5 S. C. R. 281. By agreement in writing, dated 15th October, 1873, A. agreed to sell, and B. and C. agreed to purchase, all the merchantable white and red pine timber, suitable for their purposes, standing, lying, or being on certain premises owned by A., for the price or sum of |600, payable, §400 on date of agreement, and the balance in one year, with a provision that the timber should be cut and removed off the lands, on or before the 15th of October, 1881. It was further provided that B. and C. their agents, representatives, or assigns, should have the right to enter upon tlie premises at all times during the period for which the agreement was to continue in force, for the purpose of cutting and removing said timber ; and that if 0, and B. should remove the whole of the timber oflf the laud before the expiration of the year, they would pay the whole of the purchase money immediately after removing the said timber;— Held (Proudfoot, V. C, dissent- ing), that this was an agreement for the sale of an interest in land ; that primS, facie the vendor was entitled to a lien for unpaid purchase money, and that the circumstance that the timber was purchased by B. and C. , for the purpose of being cut down and used at their mill as soon as pos- sible, did not deprive the vendor of the right to the lien : — Held, also, that the last proviso in the agreement, as to immediate payment of the purchase money in case of removal of all the timber before the arrival of the time for payment of the 1200, did not operate to destroy the ven- dor's right to the lien. B. and C. did not pay the |200, and after the expiration of a year from the date of the agreement assigned it to the defend- ants, who had no actual notice that the $200 re- mained unpaid, but the agreement was registered against the lands : — Held, that the vendor was entitled to an injunction to prevent cutting and removing by the defendants until the $200 was 758; paid. Marshall?;. Green, L, E., 1 C. P. D 35 commented upon and distinguished. Summers v Cook, 28 Chy. 179. Under an agreement, dated 2nd October, 1880 the defendant sold to B. all the pine timber- growing on certain lands, to be removed during the years 1880 and 1881. The timber was all out into logs before the end of 1881, but a por- tion was not then removed :— field, that this was a sale of goods and chattels, and not an interest in laud; and the timber so cut having become the plaintiff's property, he had the right to re- move It after the expiration of the time men- tioned; though, Semble, the defendant might- have a right of action for not removing it within the time. The defendant having refused to per- mit such removal, the plaintiff brought replevin, and was held entitled to succeed. McGh-eaor v McNeil, Z2G:V. 5Z&. Guarantee by bank manager as to culling tim- ber. See Dohell et al. v. Ontario Bank et al., 3 0. R. 299 ; 9 A. R. 484, p. 313. On a sale of ' 'timber limits" held under lioenses- in pursuance of the C. S. C. cap. 23, a clause of simple warranty (garantie de toas troubles g^nfi- ralement quelconques) does not operate to pro- tect the purchaser against eviction by a person claiming to be entitled under a prior license to a. portion of the limits sold. Ducondu v. Dupuy. 9 App. Oas. 150. Reversing S. G. 6 S. C. R. 425. See Meid v. Smith, 2 0. R. 69, p. 581. II. Damages. The plaintiff contracted to deliver timber to- the defendant at St. Ignace, to be transported by him to Quebec for sale there. There was no- market nearer to the place of delivery than. Quebec. The plaintiff made default and in action for the price the defendant counter-claimed for damages for non-delivery of the timber : — Held, Cameron, J., dissenting, reversing the judgment of Burton, J. A., that the measure of damages- was the value of the timber at Quebec, less the cost of transportation thereto from the point of delivery. Per Burton, J. A., and Cameron, J. — Loss of profits could not be recovered, and as- the contract price for such timber had not varied, and there was no evidence of any contract by defendant to re-sell, which could be taken into- consideration, or of any purchase by him to sup- ply its place, there was no right to more than nominal damages. Hendrie v. Neelon, 3 0. R.,. Q. B. 1). 603. This case is in appeal. The plaintiffs and defendant entered into an agreement in the following terms ; " I, the undersigned, agree to deliver S. S. Mutton & Co., 40 M. ft. blk. ash, with miU culls out f.o.b. vessel on Cornwall canal, at $10 per M. feet. Also, 10 M. ft. soft ehn at $10 per M. feet f.o.b. vessel on Cornwall canal, to be delivered in the month of June, 1881, the lumber now on stick and part seasoned," and the plaintiffs signed a corresponding memorandum, agreeing, to accept- such lumber at the time specified : — Held, that the words ' ' with mill culls out, " applied to the ash only, not to the elm : — Held, also, that the plaintiff, not having had a vessel ready to receive the lumber in June, could not recover. Per 759 TRANSIENT TRADERS. 760 Osier, J., time was of the essence of the contract, and the defendant was not bound to deliver the lumber in September. Mutton v. Dey, 1 A. R. 455. II. III. TIME. Notice of Calls on Stock — See Coepo- RATIONS. Time foe, Appealing — See Court op Appeal — Practice. Time for Declaring or Pleading- Pleading. -See The plaintiff and others, councillors of the town •of Petrolia, attended a meeting of the council on "the 5th April. They were absent at the next meeting called for and held on the 31st Mf.y and thenceforward, without authorization, till the 7th of July, when, at a meeting of the council, a resolution declaring their seats vacant, and ordering a new election was put, and an amend- ment to refer the matter to the town solicitor was lost ; whereupon the dissentients left the room, in consequence of which there was no quorum, when the original motion was put and carried : — Held, that the three months should be counted from the 31st May, being the first meeting that the plaintiffs had not attended ; and that the resolution was therefore void, as ■well as on the ground that there was no quorum present when it was passed. Meanis v. The Cor- poration of tlie Town of Petrolia, 28 Chy. 98. In computing the time within which an action must be brought under the provisions of the Divi- sion Courts Act, R. S. 0. v;. 47. s. 231, the ■day on which the fact was committed must be -excluded. See Hanns v. Johnston, 3 0. R. 100, p,4. Time of filing ' bond on appeal to Supreme ■Court. See McCrae v. White, 9 P. R. 288, p. 749. An allegation in a con'viction that the offence ■was committed between the 30th June and the 31st July, was — Held a sufficiently certain state- ment of the time. See Begina v. Wallace, 4 0. U 127, p. 100. A chattel mortgage was duly executed on the 12th of July, and filed on the 18th. the 17th having been Sunday : — Held, affirming the judg- ment of the County Court, that such registration was too late, the Act R. S. 0. c. 119, requiring the same to be effected within five days from the -execution of the instrument; that Sunday count- ed as one of such five days, and that Rule 457, ■O. J. Act did not apply. McLean v. Pinkerton, 1 A. R. 490. TITLE. III. Clodd on — See Sale of Land. IV. Improvements ttndkb Mistake of Title —See Improvements on Land. V. By Possession — See Limitation of Ac- tions AND Suits. VI. Quieting Titles — See Quieting Titles. VII. Slander of — See Defamation. VIII. Tenant's Power to Dispute Land- lord's Title — See Landlord and Tenant. IX. Requisite to Maintain Ejectmbkt— See Ejectment. X. Proof of in Trespass — See Trespass. XI. Jurisdiction of Division Courts when Title to Land is in Question— See Division Courts. XII. Ousting Jurisdiction by Claim of Title — See Justices of the Peace. TOLLS. International Bridge Company — Way. TORONTO (CITY OF). Assessment for sewers. See In re Broclc v. The Corvoration of the City of Toronto, 45 Q. B. 53, p. 490. TORT. I. On Sale of Land— /See Sale of Land — Sale of Land by Order of the Court — Specific Performance- Vendors AND Purchasers' Act. Held, under R. S. O. c. 125, that in an action for a tort committed by a wife during covertnre the husband is not a proper party but the wife must be sued alone. Amer v. Rogers etvx.,Z\ C. P. 195. In torts the principle of agency does not apply ; each wrong doer is a principal. See The Ontario Industrial Loan and Investment Co. v. Lindsey, etal.,i 0. R. 473. TRADE. I. Usage of— See Custom and Usage. ,11. Restraining Trades— See iNJUNcnos. III. Infringement of Trade Marks — See IV, Injunction. Trade Eixturbs- -See Fixtures. TRAMWAY. See The Corporation of the County of Tori r. The Toronto Gravel Road and Concrete Co., 3 0. R. 584, p. 129. IL Covenants Title. FOR — See Covenants for TRANSIENT TRADERS. See Municipal Corporations. 761 TRESPASS. 762 TREATING. See Parliamentary Elections. TREES. See Timber — AVat. TRESPASS. I. To Realty. 1. Sy and Against Whom, 761. 2. Title and Possesion, 761. 3. Several Trespasses, 762. 4. Damages, 762. 5. Injunction to restrain Trespass, 762. 6. Effect of Judgment in Trespass, 763. 7. Ousting Jurisdiction by Claim oj Title See Justices op the Peace. II. For Malicious Prosecution, 763. III. False Imprisonment, 763. IV. For Wrongful Distkess — See Dis- I. To Realty. 1. By and Against Whom. Held, Armour, J., dissenting, that the Crown timber licenses claimed by the plaintiff as licen- see of the Ontario Government were subject to the right of the Canada Central Railway Com- pany, acquired before confederation, to construct the road across the Crown lands over which the hcenses in question extended, and that the de- fendants assignees of the railway company were therefore not liable for trespass for entering upon and cutting timber on the said limits in prosecution of the work of building the said rail- way. Foran v. Mclntyre et al,, 45 Q. B. 288. iSee McLellan v. McKinnon, I 0. R. 219, pp. 331, 404. 2. Title and Possession. On the 18th November, 1878, one Q. acting as agent for St. G. , under a power of attorney which empowered him only to protect and lease St, G.'s lands, but not to sell, agreed with the plain tiff to sell him a wild lot, the purchase money to be paid by ten yeaily instalments, and time to be of the essence of the agreement. The plain- tiff paid only one instalment, which Q. said he forwarded to St. G., who ratified the agreement. Shortly after the agreement the plaintiff', with Q.'s permission, went on the lot and cut and re- moved some timber therefrom, and some two or three days afterwards went back and worked half a day underbrushing, but did no further clearing, except to cut timber for firewood. The defendants C. & S., under a mistake as to the plaintiff's boundary, trespassed on the land by cuttingv timber thereon, but on the boundaries being settled they offered plaintiff compensation, though C. said his offer was for the plaintiff's interest in the land. The plaintiff was in de- fault with St. G. when the action was brought, but not when the trespasses were committed:^ Held, that there was sufficient evidence of plain- tiff's title as against St. G., for the evidence- shewed a partly performed agreement which could have been enforced; and even if the proof of St. G.'s title was defective the admissions of the defendants C. & S., who were mere trespass- ers, were sufficient evidence of title to constitute plaintiff's .acts of entry on the land constructive possession of it by him; and the onus was on the defendants of shewing either that St. G. had no- title or that any title acquired by the plaintiff under him had been lost :— Held, also, that al- though by the agreement time was of the essence thereof, and there was default made, there was no default when the trespasses were committed, and defendants not claiming under St. G. could not set up his right to avoid the agreement, but as it -was suggested that St. G. might also bring an action for the same trespasses, a release thereof from him was directed to be filed. With respect to two other defendants P. S. and F., the verdict was set aside, for not only was there no evidence against them, but the record was defective in that an interlocutory judgment had been signed against them for non-appearance, without their having been declared against. Johnston v. Chris- tie et al, 31 C. P. 358. Per Burton, J. A. The owner of an equitable estate cannot, notwithstanding the Judicature Act, proceed against trespasser in his own name. He is still bound to sue in the name of his- trustee. Adamso7iy. Adamson, 7 A. K. 592. Actual occupation of laud is not essential ta ^ve a right to maintain trespass by one \yho has the legal title. It is sufficient that he enter upon the land so as to put himself in legal possession of it :— ^Held, that putting up boards on the land by the owner, stating that the land was for sale, was a sufficient entry upon his part to vest the legal possession in him to enable him to main- tain formally an action of trespass. Donovan v. Herbert, 4 O. R., C. P. D. 635. See McGonaghy et al. v. Denmark, 4 S. C. E.- 609, p. 422. 3. Several Trespasses. See Ross v. Hunter, 7 S. C. R. 289, p. 702. 4 Damages. The deed contained two several parcels of land' and the plaintiff was evicted from one, but was still owner of the most valuable parcel : — Held, that the measure of damages was not the whole purchase money, but only the proportionate value of that part to which the title failed. McKay v, McKay, 31 C. P. 1. See Douglas v. Fox et at., 31 C. P. 140, p. 502;. Mitchell V. McDuffy, 31 C. P. 266, 649, p. 211 j- Robinson v. Hall, 1 0. R. 266, p. 457. 5. Injunction to Restrain Trespass. See Orand Trunk R. W. Co. ofCanadav. Credit Valley R. W. Co. et al, 27 Chy. 232, p. 344 ;- Fenelon Falls v. Victoria R. W. Co. 29 Chy. 4,- p. 343. 763 TRIAL. 764 6. Effect of Judgment in Trespass. A judgment in favour of the plaintiff in an .■action for trespass to lands upon pleas (amongst others) of land not plaintiff's and liberum tene- mentnm, is not a complete estoppel, preventing the defendant in another suit, from questioning the plaintiff's title to any part of the lands. The judgment is only an estoppel. with regard to the title of that portion of the land upon which it had been shewn that the defendant had tres- JJunter v. Sirney, 27 Chy. 204. II. Fou Malicious Psosbcutioh-. See Macdonald v. Henwood et at, 32 C. P. 433, p. 443. III. False Imprisonment. The 41 Vict. c. 9, intituled "An act to widen .and extend certain public streets in the city of St. John," authorized commissioners appointed by the governor in council to assess owners of the land who would be benefited by the widen- ing of the streets, and in their report on the ex- tension of Canterbury street, the commissioners so appointed assessed the benefit to a certain lot at $419.46, and put in their report the name of the appellant (McS. ) as the owner. The amount so assessed was to be paid to the corporation of the city, and, if not, it was the duty of the re- ceiver of taxes appointed by the city corporation, to issue execution and levy the same. McS., although assessed, was not the owner of the lot. S., the receiver of taxes, in default, issued an ex- ecution, and for want of goods Mco. was arrested and imprisoned until he paid the amount at the •chamberlain's office in the city of St. John. The action was for arrest and false imprisonment, and for money had and received. The jury found a verdict for McS. on the first count against both Kiefendarits : — Held, (reversing the judgment of the Supreme Court of New Brunswick), that S., who issued the warrant founded upon a void as- sessment and caused the arrest to be made, was guilty of a trespass, and being at the time a ser- vant of the corporation, under their control and specially appointed by them to collect and levy the amount so assessed, the maxim of respondeat superior applied, and therefore the verdict in favour of McS. for |635. 39 against both respond- ents on the first count should stand. (Ritchie, C. J., and Taschereau, J., dissenting.) Per ■Gwynne, J. : 'That the corporation had adopted the act of their officer as their own by receiving .and retaining the money paid and authorizing McS.'s discharge from custody only after such payment. McSorley v. The Mayor &c., of the City of St. John et al., 6 S. C. R. 531. See Reid v. Mayiee, 31 C. P. 384, p. 404 ; -McLellan v. McKinnon, 1 0. R. 219, pp. 331,404. TRIAL. I. Notice ov Trial and Assessment, 764. II. Conduct of Causes, 765. III. Evidence and Witnesses — See Evi- dence. IV. Reeerence from Superior to Countt Court and Vice Versa, 766. V. Postponement oe Trial, 766. VI. Questions Submitted to and Findings BY Jury — See Jpry. VII. Miscellaneous Cases, 766. A'lII. Of Contested Elections — See Parlia- mentary Elections. IX. County Judge's Criminal Court— fe Criminal Law. X. New Trial — See New Trial. XL Verdict — See Verdict. I. Notice of Trial and Assessment. Held, that in an action commenced by a writ not specially endorsed, where the defendant does not plead to the declaration, the plaintiff must sign interlocutory judgment against the defend- ant before he is in a position to serve notice of trial and assessment of damages. • Fenwick v. Donahue, 8 P. R. 116.— Dalton, Q. C. A summons to dismiss an action for breach of an order to examine, generally implies a stay of proceedings ; but where the judge who granted the summons struck out the part relating to a stay, and the summons was afterwards enlarged without any mention of a stay, a notice of trial served while the summons was pending, was — Held, to be regular. Merchants' Bank v. Pier- son, 8 P. R. 129.— Dalton, Q. C. Plaiutifi;'s and defendant's attorneys had an arrangement between themselves by which papers in the suit should be sent by mail. The notice of trial was posted the day before the last for giving notice, but reached defendant's attorney one day too late. It was shewn that the prac- tice of both attorneys had been to admit service as of the day of receipt : — Held, that the notice of trial must be set aside. Robson v. Arbuthnot, 3 P. R. 313, distinguished. McDonough v. Ali- son, 9 P. R. 4. — Dalton, Master A writ in ejectment was served on the 15th August, 1881, and an appearance entered after the 22nd of the same month : — Held, that the plaintiff need not file a statement of claim, under the new practice, and that a notice of trial serv- ed immediately after the entry of the appearance was regular, the cause being then at issue. Laid- law V. Ashbaugh, 9 P. R. 6. — Dalton, Master. A cause is at issue where a joinder of issue has been delivered, or where three weeks have elapsed after statement of defence has been de- livered. A notice of trial served before either of these events had happened was — Held, irregular and was set aside. Schneider v. Proctor, 9 P. R. 11.— Dalton, Master. Where notice of trial has been given it cannot now be countermanded by either party. Friendly V. Carter, 9 P. R. 41.— Dalton, ite aster. —Osier. The words " according to the present practice of the Court of Chancery," in Rule 266, are only intended to determine that the entry of the suit for trial is to be made with the proper officer of the Chancery Division, leaving the time of entry to be determined by the preceding rules, 259 and 765 TRIAL. 766 •264. Ten days' notice of trial is therefore suffi- cient in all cases coming within its terms. Bar- Jeer V. Furze, 9 P. K. 83.— Proudfoot. On the 22nd August, 1881, a replication had not been filed, but the suit was in such condition that it could then have baen filed : — Held, that under the 0. J. Act, Rule 494, notice of trial might be given without filing a replioition. Sawyer v. Short, 9 P. R. 85. — Dalton, Mailer. In an action of replevin ten days' notice of -trial must be given, instead of eight days, as under the old practice. Wallace v. Cowan, 9 P. E. 144. — Dalton, Master. Thc'Words " either party," in Rale 253, 0. J. Act, mean "any party," and when an action is as to all the parties to it ripe tor trill one of several defend mts Inay bring the case on under -that rule by giviag notice of trial to the plaintiff and his co-defendants. McLean v. Thompson et .al, 9 P. R. 553.— Boyd. II. CoNDtrCT OF Cattsbs. Thedefendants appeared by the same attorney, ^le^ded jointly by the same attorney, and their defence was, in substance, precisely the same, hut they were represented at the trial by separate counsel. On examination of plaintiff's witness, both counsel claimed the right to cross-examine the witness : — Held, (affirming the ruling of the judge at the trial), that the ju-lge was right in allowing only one counsel to cross-examiine the ' witness. Walker v. McMillan, 6 S. 0. R. 241. Junior counsel are not at liberty to take po- sitions in argument which conflict with the positions taken by their leaders. The Inter- national Bridge Co. v. The Canada Southern R. W. Co., 7 A.'k. 226., but see 19 C. L. J. 358. At the trial counsel for the defendant objected that there was no sufficient case made out upon one branch of the plaintiff's claim, the rectifica- tion of an agreement. Ihe defendants' counsel -thereupon deoli 'ed to argue the point until the evidence was closed, and the defendants then called one witness upon another point : as to the ratification, the learned judge ruled that the plaintiff had made out no case — and as to the other points he decided in defendant?' favour, and dismissed the bill, with costs. Thereupon "the plaintiff appealed to this court and the decree was reversed and the relief prayed for given to -the plaintiff. On settling the certificate of judg- ment the solicitor for the defendants objected to that part of it which directed the taking of the accounts between the parties, and that credit should be given for $40,000, the value of the plant, &c. , seeking to have the action remitted to the court below, in order to conclude the trial and take such evidence as the respondent might adduce in support of his defence, and moved the court to vary the certifioite accordingly: — -Held, that the defendant was bound by the course which he had elected to adopt, and the applica- tion was refused, with costs, Macdanald v. Worthington etal., 7 A. R. 531. Where defendant claims a remedy over against a third party. See The Corporation of the Town of Dundas v. Cfilmour et al., 2 O. R. 463, p. 605. IV. Refbrbnob prom Supebtor to GoiTNTr OOCTRT AND VlOE VbrSA. See Merchants' Bank v. Brooher, 8 P. R. 133, p. 169; Barker v. Leeson, 9 P. R. 107, p. 170. V. Postponement of Trial. W. (plaintiff) entered into negotiations with S. (defend vnt) to purchase a house which defendint was then erecting. W. alleged thit the agree- ment was, that he should take the land {2J lots) at |iOO a lot of fifty feet frontage, and the mate- rials furnished and work done at its value. In August, 1874, a deed and mortgige were execu- ted, the consideration being stated in both at 15,926. The mortgage was afterward? assigned to the M. and N. W. L. Oompiny. W". alleged in his bill, that S., in violation of good faith, and taking advantage of W. 's ignorance of such matters, and the confidence he placed in S., in- serted in the mortgage a, larger sum than the balance due as a fair and reasonable market value of the lauds, and of what he had done to the dwelling house and other premises, and he prayedanaccouut. S. repudiated the allegation of fraud, and alleged that W. hid every opportun- ity to satisfy himself, and did satisfy himself, as to the value of what he w is getting ; that he had told the plaintiff he valued the land at |2, 000, and that in no way had he sought to take ad- vantage of the plaintiff. S. was unible to be present at the hearing, and applied for a post- ponement, on the grounds set forth in an affida- vit, that he was a material witness on his own behalf, and that it was not safe for him, in his state of health, to travel from Ottawa to Win- nipeg. Dubuo, J., refused the postponement, on the ground that the court was only asked now to decree that the account should be opened and properly taken, and the amount ascertained, which would be done by the master if the court should so decide, and that the defendant would then have an opportunity of being present, and that he was not necessarily wanted at the hear- ing ; and, as the result of the evidence, made a, decree in accordance with the contentions of the plaintiff, and directed an account to be taken : — Held, that under the circumstances, the case ought not to have been proceeded with in absence of appellant, and without allowing him the oppor- tunity of giving his evidence. Per Ritchie, 0. J., and Strong and Gwynne, JJ., that on the merits there was no ground shewn to entitle the plaintiff to relief. Per Ritchie, 0^ J., and Strong, J., that the bill upon its face alleged no ground sufficient in equity for relief, and was demurrable. Schultzr. Wood, 6 S. 0. R. 585. The plaintiff gave notice of trial for 2nd Oc- tober. On 23rd September the defendant ob- tained an order to postpone the trial on payment of costs : — Held, a conditional order not staying the plaintiff's proceedings, and one which the defendant was at liberty to abandon without being liable to pay other than the costs of the application. Allen v. Mathers, 9 P. R. 477.— Osier. VII. MiscELLANEOirs Oases. Amendment at trial by striking out item from particulars. See Davidson v. The Belleville and North Hastings R. W. Co., 5 A. R. 315, p. 168. 767 TRUSTS AND TRUSTEES. 76i^, Observation on the difference between an eleo- 1 tion trial and a trial at nisi prius. See Peel Elec- tion [Ont.)—Huret v. Ghisholm, I H. E. C. 485. Where in 1875, in an action of ejectment the parties agreed in writing that a verdict be en- tered for the plaintiff, but not enforced till de- fendant be paid |50 for costs and the value of his improvements, said value to be fixed by ar- bitration ; and, though the %50 had not been paid, nor the said value so ascertained, plaintiff entered judgment on the verdict, and ejected the defendant, whose devisee now filed this bill, claiming possession, damages, a reference as to improvements, and an order for payment of the amount found due, and of the |60 for costs : — Held, that though the judgment could not be set aside, and possession given to plaintiff, the plaintiff was entitled to a reference as prayed, with costs. Watson v. Ketchum, 2 0. E., Chy. D. 237. TROVER. In trover for goods against an assignee in insolvency :— Held, following In re Barrett, 5 A. R. 206, that the assignee may object to the ab- sence of a bill of sale on an alleged sale by the insolvent just as an execution creditor or subse- quent purchaser for value may do. Snarr v. timith, 45 Q. B. 156. The plaintiff alleged in oue count in trover that the defendant converted to his own use, or wrongfully deprived the plaintiff, &c. : — Held, overruling Bain v. MacKay, 5 P. R. 471, that the count was not embarrassing. Taylor v. Adains, 8 P, R. 66.— Dalton, Q. C. In an action of trover or conversion against appellant, high sheriff of the county of Cumber- land, N. S., to recover damages for an alleged conversion by the appellant of certain personal property found in the possession of the execu- tion debtor, but claimed by the re.'spondent, the pleas were a denial of the conversion, no pro- perty in plaintiff, no possession or right of pos- session in plaintiff and justification under a writ of execution against the execution debtor. The learned judge at the trial told the jury that he "thought it was incumbent on the defendant to have gone further than merely producing and proving his execution, and that if a transfer had taken place to the plaintiff, and the articles taken and sold, defendant should have shewn the judgment on which the execution issued to enable him to justify the taking and enable him to sustain his defence" : — Held, that the sheriff was entitled under his pleas to have it left to the jury to say whether the plaintiff had shewn title or right of possession to the goods in ques- tion, and therefore there was misdirection. Mc- Lean V. Hannon, 3 S. C. R. 706. Action of trover charging the appellants with converting 250 barrels of mackerel, which were the property of W. M. R. the respondent's assignor. One of the branches of appellants' business was supplying merchants who were connected with the fishing business in the country, and who in return sent them fish, which was sold and the proceeds placed by appellants to credit of their customers. One S., who so dealt with appellants, in October, 1877, sent them 77 barrels of herring and 236 barrels of mackerel. On 3rd November, 1877, S. sold all the fish he had, including those mackerel, to one fi. at $8 a barrel, when some were delivered, , leaving 236 barrels in the appellants' Store, and in payment received |4000 and a promissory note for 14000 at four months. This note was given to appellants by S. on account of his general in- . debtedness. On the 4th March, 1878, E. became^ insolvent, and the respondent who was subse- quently appointed assignee, demanded the 236- barrels of mackerel and brought an action to re- cover the same. Alter issue was joined the^ appellants proved against the estate of R. on the note and received a dividend on it. The chief justice at the trial gave judgment for |1888, less- $46.10 for one month's insurance and six months' storage, and found that the appellants had know- ledge that the fish sued for were included by the- insolvent in the statement of his assets, and made no objection thereto known to the assignee or creditors at the meeting : — Held (Strong, J., dissenting) that the appellants having failed to- prove the right of property in themselves, upon which they relied at the trial, the respondent- had, as against the appellants, a right to the im- mediate possession of the fish. 2. That S. had not stored the fish with appellants by way of security for a debt due by him, and as the appel- lants had knowledge that the fish sued for were included by the insolvent in the statement of his assets, to which statement they made no ob- jection, but proved against the estate for the whole amount of insolvents' note, and received a> dividend thereon, they could not now claim the fish or set up a claim for lien thereon. Troop et al. V. Hart, 7 S. C. R. 512. , See Stoeser v. Springer, 7 A. R. 497, p. 704. TRUSTS AND TRUSTEES. I. Notice or Trust, 768. II. Trustees. ; 1. Appointment of Trustees, 769. 2. Duties and Liabilities, 769. 3. Compensation and Allowance, 770. 4. Purchase or Lease of the Trust Pro- perty by Trustees, 771. 5. Liability for Acts of Co-Trustee, 772. 6. Of Schools — j^ee Public Schools. 7. Of Religious Institutions — See Church. III. Limitation of Actions and Suits in Cases relating to Trusts, 772. IV. Miscellaneous Oases, 772. V. Improvements on Trust Property— fe Improvements on Land. vi. qualmcation of trustees as votees- See Parliamentary Elections. I. Notice of Trust. Gr. W. P., being the patentee of a certain lot described as of 200 acres, but in which there was a deficiency, conveyed half of the lot to J. B. P., who conveyed it to trustees, to hold in 769 TRUSTS AND TRUSTEES. 770 trust for E. F., wife of G. W. F., upon certain trusts declared in the deed, and without power to her to anticipate. The deficiency was sub- sequently discovered and upon the application to the government in the name of the trustees by G. W. F., whom they appointed their agent for that purpose, a grant of land, as compensa- tion for the deficiency was made to the trustees of E. F. describing them as such. Subsequently an instrument under seal, expressed to be made between J. B. P., of the first part, and E. F. , wife of G. W. F. , of the second part, and the trustees of the third part, which recited the facts and also that the trustees had no real interest therein, but were named as grantees merely as being the legal owners of the original halt lot, was executed by J. B. P. and E. F., whereby they declared that the parties of the first and second parts were not in any way interested in the lands granted as compensation, and that the trustees held them as trustees for G. W. P. , the patentee of the original lot. After this the trus- tees, by the direction of G. W. F. conveyed to E., under whom the defendants' claimed. E. F. now brought this action to recover the land : — Held, (Hagarty, C. J., dissenting) that E. and those claiming under him must be held to have had notice of the title of the trustees, who were described in the patent as trustees of E. F. : that this land was subject to the trusts of the previous conveyance to them : that E. F. was not estopped by the declaration executed by J. B.P. and herself, which did not divest her of her title, and that therefore she was entitled to re- cover : — Held, also, that there should be a refer- ence to the master to take an account of taxes paid and permanent improvements made upon the lands, further consideration being reserved. Per Hagarty, C. J. The legal estate being in the defendant by conveyance from the trustees, the plaintiff should shew an equity to recover what ehe claimed as part of the trust estate, which she had not done ; that the patent to the trustees, though describing them as such, did not in terms declare any trust respecting this land, and it could not be assumed that it formed part of the trust premises. Per Armour, J. The case was not within R. S. O. u. 95, s. 4, as to improve- ments under a mistake of title, but was governed by the principles' of equity governing the re- lationship of trustee and cestui que trust. Per Cameron, J. The case was within the statute. Foolt V. Rice et al, 4 0. R., Q. B. D. 94. II. Trustees. I. Appointment of Trustees. See In re Treleven and fforner, 28 Chy. 624, p. 770. 2. Duties and Liabilities. Land was settled on a trustee, in trust for the use of H. tm marriage, and then upon other trusts for the husband and wife as tenants for life, and ultimately providing for the issue ; the assent of ths tenant for life was necessary for a, sale ; and.there was power in the deed to apjjoint H. as a trustee on the original trustee refusing, &c., to act. The trustee had an absolute discretion as to forfeiting and applying the estate among or for the benefit of the parties to the deed in case 49 of anticipation or attempted anticipation: — Held, that the consent of H. and his wife, as tenants for life, satisfied the condition as to the assent in case of a sale : that H, , as trustee, was entitled to receive the purchase money, and that the pur chaser was not bound to see to its application. In re Treleven and Horner, 28 Chy. 624. It having been suggested by the court that the appointment of H. as trustee, was not one which the court would have made, the matter again came on for argument, whan it was — Held, that H. was placed in a position in which his interest as one of the parties to the deed upon forfeiture might oouflict with his duty as trustee, and that the court would not have made and could not sanction his appointment. Ih. In re Toronto Harbour Commissioners, 28 Chy. 195, p. 771 ; In re Jarvis v. Oook, 29 Chy. 303, p. 468. 3. Compensation and Allowance. What is proper compensation to be allowed to a trustee for his management of the trust estate is a matter of opinion, and even if, in granting the allowance, the court below may have erred on the side of the liberality, that alone is not sufficient ground for reversing the juigment. Where the master at Guelph had allowed 1125, which the court, on appeal, increased to $250, this court refused to interfere. McDonald et al. V. Davidson, 6 A. R. 320. Trustees on assuming the trust estate are not to be allowed a commission for merely taking the same over ; but trustees, properly dealing with the estate, and handing it over on the de- termination of the trust, are entitled to one com- mission, for the receipt and proper application of the estate, payable out of the corpus. lie Berkeley's Trusts, 8 P. R. 193.— Blake. Trustees are not entitled to a commission for the investment or re-investment of the funds of the estate. They are entitled to a commission on the receipt and payment of the income of the estate, payable out of the income, and to a com- pensation for looking after the estate, payable out of the corpus. lb. Trustees may not unreasonably be allowed something for services not covered by the com- mission awarded. lb. The master has power to allow a lump sum to> a trustee as his remuneration for the care and management of real estate, but to entitle him to such sum there ought to be evidence to enable the court reasonably to see that the services for which such sum is asked have been rendered, and to make a proper allowance therefor. Where a master fixed a sum, on evidence not sufficiently particular, the case, on appeal, was referred back to him, with leave to the trustee to give proper evidence. The trustee to pay the costs of the appeal and the additional costs in the master's office. Stinsonv. Stinson,8F. R. 560. —Ferguson. Held, following the case of the Commissioners of the Cobourg Town Town Trust, 22 Chy. 377, that the commissioners of the Toronto Harbour were entitled to compensation for their services ; and this whether the harbour belonged to the Dominion or the Provincial Government, as in the event of it being found to belong to the 771 TRUSTS AND TRUSTEES. 772 Dominion it must be assumed that the Dominion (iovernment intended the commissioners to be subject to the law of the province in which the trust was to be administered. The sum to be allowed should be such as would be a reasonable compans itinn for the services rendered, and at the same time such a moderate amount as would not be an inducement to members of the city council, or of the board of trade, or others, to seek the oflBoe for the sake of the emolument. The duties of the office being shewn to be not at all onerous, an allowance of jf50 a year was named as sufficient to obtain the services of the right class of men to discharge them. Re The Toronto Harbour Commissioners, 28 Chy. 195. The rule that a trustee must not have a per- sonal interest in conflict with his duty as such trustee, applies as well to public as to private trusts. Therefore, where one of the commis- sioners of a harbour had large landed interests adjacent to and upon one part of it, and was interested in having that portion of the harbour improved, the court (Sprae;ge, C), on directing an allowance to be made to the commissioners for their services, expressly excepted the com- missioner so interested from participating there- in, and this although he had not applied for any compensation and had at the board of commis- sioners opposed any such allowance being made. lb. See Hayes y. Hayes, 29 Chy. 90, p. 641; Bvrn I V. Gifford et al, 8 P. R. 44, p. 734. i payment of the mortgage, the conduct of the sale was given to the guardian of the infant, and the plaintiff had liberty to bid at the sale under the decree as mentioned, 27 Chy. 576 : — Held, (rever- sing the f'rder then made,) that the liberty to bid accorded the plaintiff, who occupied the two- fold character of mortgagee and trustee, was given him for the purpose of protecting his interests as mortgagee, but did not absolve him from the duty which, as trustee, he owed to the infant ; and that the conduct of the plaintiff prior to and at and about the sale, as set out in the case, by means of which he had been enabled to make a profit at the expense of the infant cestui que trust, was such as would have rendered the sale invalid if the land had remained in his hands ; but as it had passed into those of an innocent purchaser the plaintiff should be charged with the outside selling value of the estate at the time of the sale, or should pay to the defendant the amount due to him under the will, with interest thereon from the date of the sale, together with the costs of the Court below subsequent to the petition, and also the costs of appeal. Richer v. Richer, 7 A. R. 2S2. Purchase of client's property by solicitor. See Kilbourn v. Arnold, 6 A. R. 158, p. 43. See also Pbincipal and Agent VII., 1 p. 648. 4. Purchase or Lease of the Trust Property by Trustees. L. and S. were appointed by the Court tfus- tees for the plaintiff, a married woman, upon a written consent purporting to be signed by them agreeing to act. Subsequently L. obtained from the plaintiff a lease of the trust estate to himself, at what was alleged to be an inadequate rental. Some yoars afterwards, and after the death of her husband, the plaintiff instituted proceedings to have the lease cancelled, alleging as grounds of relief, inadequacy of rent, waut of proper ad- vice by the plaintiff in the execution thereof, and the fiduciary relation towards herself which L. had assumed. Under the circumstances the Court (Spragge, C.,) granted the relief asked, notwithstanding L. swore that he was not aware that he had been appointed trustee ; that he never signed the consent to act as such, and that liis conduct throughout had been bona fide, it being shewn that he had effected an insurance upon the building situate upon the premises, the application for which he had signed as trustee, and there being reason to believe that if he had not signed the consent himself he had authorized the husband of the plaintiff to affix his signature thereto ; but gave L. the option of accepting a new lease of the property to be settled by the master ; which decree was affirmed by the full Court on rehearing. Seaton v. Lminey,'!'! Chy. The plaintiff was mortgagee ot certain lands, and by the will of the mortgagor was devisee thereof in trust to pay certain legacies charged thereon — amongst others one to the defendant, an infant about ten years old. Having instituted proceedings against the defendant to enforce 5. Liability for Acts of Co-Trustee. A testator who, by his will, expressed the fullest confidence in C. (one of his trustees), directed them to be guided entirely by the judgment of C. as to the sale, disposal, and re- investment of his American securities, and de- clared that his trustees should not be responsi- ble for any loss occasioned thereby. C. having made unauthorized investments of these moneys which proved worthless, the master charged his CO trustee B. with the amount thereof : — Held, that even if at the suit of creditors B. might have been chargeable, yet as against legatees he was exonerated. Burritt v. Burritt, 29 Chy. 321. III. Limitation op Actions and Suits in Cases Relating to Trusts. Ferguson v. Ferguson, 28 Chv. 380, p. 435 ; Cook v. Grant, 32 C. P. 511 p. '437 ; Re Kirk- pcUrick et al. v. Stevenson et al., 3 0. R. 361, p. 438 ; Cameron v. Campbell, 7 A. R. 361, p. 439; Adamson v. Adamson, 7 A. R. 592, p. 428. IV. Miscellaneous Cases. Where the assignee of an insolvent estate trans- ferred the money to the credit of the estate ac- count in a bank to his own private account and then used it for his own private purposes, the bank deriving no benefit from the transfer and it not appearing that the assignee was indebted to the bank : — Held, that the bank was not liable to repay the amount to the estate. Clench v. The Consolidated Bank of Canada, 31 C. P. 169. The operation of an ordinary deed of bargain and sale under the Short Forms Act— R. S. 0. c. 102 — conveying lands to trustees considered' and acted on. Seaton v. Lunney, 27 Chy. 169. 773 VALUATOR. 774 Creation of trusts nnder building contract in favour of sub-contractors. See Forhan v. La- londe, 27 Chy. 600, p. 419. Right of equitable tenant in fee simple to re- .conveyauce of trast property. See Fanell v. Cameron, 29 Oby. 313, p. 319. Per Hagarty, C. J. It is the duty of a solici- -tor to inform his client, when a trustee, aa to the advisability of taking proceedings and incurring •costs, when it may become a question whether the costs will have to be paid out of his private lunds or out of the trust fund or estate. Butter- Jeld V. WelU, 4 O. R., Q. B. 1). 168. Misapplication of moneys assessed under drain- age by-law. — Trust created. See Smkh v. The •Corporation of the Township of Raleigh, 3 0. R. 405, p. 489. , Attaching trust moneys, ^e^ Lhydv. Wallace, ■9 P. R. 335, p. 34. Pleading. See McLean v. Bruee, 29 Chy. .507, p. 624. Qualification of trustees as voters. See South GrenvHk Election [Ont.) Ellis v. Eraser, 1 H. E. ■C. 163, p. 525. See also Parr v. Montgomery, 27 Chy. 521, p. 306; Adamson v. Adamson, ^ A. R. 592, p. 428. ULTRA VIRES. See Constitutional Law. UMPIRE. See Aebitkatiox and Award. UNDUE INFLUENCE. £ee Fraud and Misebpresentation- MENTARY ELECTIONS. -Paelia- USAGE. See Custom and Usage. USES AND TRUSTS. The operation of an ordinary deed of bargain ••and sale under the Short Form's Act R. S. 0. c. 102, conveying lands to trustees considered and ■acted on. Seaton v. Lunney, 27 Chy. 169. A husband and wife were the parties of the third part in a conveyance, whereby the wife's father did ' ' grant unto the said party of the third part his heirs and assigns forever," &;c., habendum "unto the said party of the third part his heirs and assigns, to and for his and their sole and only use forever" : — Held, that by the operation of the statute of uses, the husband took an estate in fee simple. Be Young, 9 P. R. 521.— Boyd. USURY. See Pawnbroker. VACATION. A master's report made during long vacation in contravention of G. 0. 425, is as against a defendant having no notice of the proceedings on which the report is founded, entirely null and void. Fuller v. McLean, 8 P. R. 549.— Boyd. See Sievewrii/ht v. Leys, 9 P. R. 200, p. 631. VALUATOR. The defendant, by a certificate signed by him as reeve of the township, stated he had personal knowledge of property belonging to one A. M., and occupied by him, which thfe defendant be- lieved to be worth $2,000, and would readily sell at a forced cash sale for |1,600 : that about fif- teen acres were cleared and ready for or under cultivation, &e., setting forth further favourable particulars as to buildings on the land and the nature of the soil, all of which proved to be erro- neous. In fact the defendant had not any per- sonal knowledge of the premises, which were almost worthless : and the particulars as given had been communicated to him by A. M. him- self. The defendant was aware that the plain- tiffs were about to advance money by way of loan on the security of this property, and had called for his certiticate, by which they said they would be guided in making such advance. The court, under these circumstances — Held, the defendant answerable for the loss sustained by the plaintiffs in consequence of having acted on his certificate, although no fraud was attribut- able to him, and his services were gratuitous. Oowan V. Pat07i, 27 Chy. 48. The defendant, who was employed on behalf of the plaintiff to value certain lands, intended to certity the value at $2,000, but through the fraud of the agent he was induced to certify for 13,000 :— Held, affirming the decree of Blake, V. C, (26 Chy. 390,) that the defendant was not liable for any loss sustained by the plaintiff : — Held, also, that the circumstances of this ease would not justify the court in reversing the find- ing of the judge of first instance, that the valua- tion was made without fraud or intention to deceive. Silverthorn v. Hunter et al., 5 A.R. 157. Per Burton, J. A., a valuator is not liable for negligence in making a valuation of land, on which a loan is procured, unless it be fraudu- lently made, lb. The paid agent of a loaning society, who pro- fessed to be skilled, and had a knowledge in the valuing of lands, was held liable to the society for a loss sustained by them by reason of a false report of such agent. Silverthorn v. Hunter, 5 A. R. 157, distinguished. Hamilton Provident and Loan Society v. Bdl, 29 Chy. 203. In order to render the paid valuator of a loan company answerable for a loss caused by exces- sive valuation of property, it is not necessary to 775 YERDICT. 775 shew that such valuation is made fraudulently. The Canada Landed Credit Go. v. Thompbon et al, 8 A. R. 696. The Court below dismissed a bill filed to en- force a claim for damages sustained by an exces- sive valuation of land by the brother and partner of the paid valuator duly appointed by the plain- tifis, on the ground that it was not shewn that the valuation wa? made fraudulently. This court, while difi'ering from such view, declined to reverse the decree and ordered a new tiial, at which the evidence of one of the defendants al- ready taken might be used, in the evtnt of his then being out of the jurisdiction, but ordered the defendants to pay the costs of the appeal ; the new trial to be without costs in the court below, lb. See A qricultural Investment Co. v. The Federal Banh, 6 A. R. 192, p. 68 ; Moberly y. Brooks, 27 Chy. 270, p. 289. VENDITIONI EXPONAS. See ExBOUTiON. VENDOES AND PUECHASEES ACT. A testatrix devised to trustees all her estate, real and personal, which, or a sufficient portion of which, they were to dispose of for payment of debts, and the support and education of her two youngest daughters C. and M. during their mi- norities, excepting two tenements known as the Westminster property , ■« hich were to be reserved for the use of C. and M, so long as they or either of them should remain unmarried, and in order that C, on attaining 21 and being unmarried, might in her option occupy and enjoy for her life, so long as she should be unmarried, one of the houses for her own residence and that of her sister ; and, in the event of her marriage, the youngest daughter M . was to have the same option and choice, the intention of the testatrix "being that in addition to their support and maintenance out of all of my estate, as devised, my youngest daughters C. and M. shall have a home within their control so long as they or either of them shall. remain unmarried;" and upon the marriage of both C. and M. the whole of such Westminster property was to be sold, and the proceeds thereof to form part of the residuary estate and be divi-' ded ainougst all her children, sons and daughters, then living, share and share alike. C. and M. attained majority and were unmarried, when all the children, including C. and M., together with the trustee, joined in a contract to sell the West- minster property. In answer to a question sub- mitted to the Court, under the Act (R. S. 0. o. 109), it was — Held, that all these parties joining in a conveyance, a good title could be made; and although in apphoations of this kind the costs are in the discretion of the Judge, the purchaser was ordered to pay the costs. Givius v. Darvill. 27 Chy. 502. Though on a bill filed for specific performance if the infant children untimately entitled under the settlement were made parties, the court might order the completion of the sale and pay- ment of the money into court for investment, | where the corpus of the estate would be pro- tected for the children, yet on application under the Vendors and Purchasers' Act, in the absence of the other parties to the settlement, it would, not compel the purchaser to accept the title. In re Treleven and Horner, 28 Chy. 624. Held, that a mortgage which contains an acknowledgement 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 for its recovery. In this case it was shewn that no money was ever advanced by the mortgagee to defendant, the mortgagor, but that the mortgage was given for a debt due by defendant to one C. , who in consideration of getting it agreed to relieve defendant from all personal liability ; and the plaintiffs, assignees of the mortgage, were held not entitled to recover. Quaere, whether sec. 1, sub-sec. 4, and sec. 2 of the Vendors and Purchasers Act, E. S. 0. c. 109, apply to such an action as this, or only to actions- where the title to land is in question. The Lon- don Loan Go. v. Smyth, 32 C. P. 530. On a petition under the Vendors' and Pur- chasers' Act, the question of the existence or the validity of the contract for sale cannot be tried, but only those matters which would be enter- tained upon a reference as to title under a decree for specific performance. The only parties neces- sary on such a petitidn are those who would be parties to a suit for specific performance, and therefore mortgagees who had been joined were dismissed with their costs. Re MacNabb, 1 0. E.,Chy. D. 94. Semble, that E. S. 0. o, 109 s. 2 is retrospec- tive so as to cast the onus of disproving the payment of the consideration on the party im- peaching a conveyance as voluntary even though the transaction took place prior to that enact- ment. Sanders v. Malsburg, 1 0. E., Chy. D. " 178. Held, that on an application under E. S. 0. c. 109, s. 3, the question of the abandonment of th& contract between the parties cannot be raised. Henderson v. Spencer, 8 P. R. 402 — Spragge. Held, that the Act (R. S. 0. t. 109) was in- tended to provide for a simple case where there was no di3pute as to the validity of the contract and that the court ought not to enter upon the question of the validity of the title, until it was^ decided that the contract was binding. Hender- son V. Spencer, 8 P. R. 402, not followed. Ee Robertson aud Daganeau, 9 P. R. 288. — Boyd. See Re Ingkhart and Oagnier, 29 Chy.^418, p. 95. VENUE. See Patent op Invention — Pleading. VERDICT. I. Interest on, 777. II. Miscellaneous Casbs, 777. III. Questions Submitted to and Findikgs BY Jury. —See Jury. 777 WAIVER. 778 IV. New Trial when Verdict is Against EVIDBNOE OB THE WEIGHT OF EVI- DENCE. — See New Trial. I. Interest on. In an action against tlie sureties of an abscond- ing assignee in insolvency, on the assignees bond to the Queen under the statute, a verdict was entered at the trial for $800, subject to a legal -qaestion, which was afterwards decided in favour of the plaintiff. It was agreed by the parties that in case of such a decision, the amount for which the verdict should be entered was $700 : — Held, that the verdict was not for a debt or sum certain within R. S. 0. u. 50, s. 269, and that it should not carry interest from its entry. Woodruff V. Canada Guarantee Co., 8 P. E,. 532. — Hagarty. See Quinlan v. Union Fire Ins. Co., 8 A. B. 576, p. 179. II. Miscellaneous Oases. The Court refused to quash a conviction under "the liquor license Act, affirmed on appeal, on the ground among others that the general verdict of guilty was inconsistent with the , answers of the jury to specific questions. See Heginav. Orainger, 46 Q. B. 382, p. 730. Verdict subj ect to opinion of the Court . —Power -of Court. See Creighton v. Ghitiick et al., 7 S. C. K. 348, p. 56. Commission allowed by jury without any evi- dence to support finding. See Tlie Corporation of the Tovm of Welland v. Brown, 4 O. K, 217, p. 27. VESSEL. See Ship. VESTING ORDER. See Sale or Land by order of the Court. VOLUNTARY CONVEYANCE. £ee Fraud and Misrepresentation — Fraudu- lent CoNVEyANOES. A mortgage which had been executed by the ■defendant I. reciting that it had been agreed to be given to secure notes held by the plaintiffs and -containing covenants for title was reformed on parol evidence by substituting for one of the parcels inserted by mistake which did not belong to I., another lot proved to be his at the time of -creating the mortgage, and was the only other lot owned by him. Such a mortgage is not voluntary or without consideration so as to ex- -clude reformation. Bank of Toronto v. Irwin, 28 Chy. 397. The absence of a power of revocation from a Toluutary settlement is not a ground for setting it aside. The plaintiff, who had just come of age, being about to marry, applied to her solici- tor who was also her guardian, for advice as to her property, and had several consultations with him, at which the heads of a marriage settlement were agreed upon. The solicitor did not know the husband, and acted solely in the interests of the plaintiff. Nothing was said about a power of revocation in the settlement, which contained the usual clauses, but gave rather more power than usual to the plaintiff, and was made in con- sideration of marriage : — Held, that it was not a voluntary settlement ; and that, as it contained the usual clauses in such deeds, and simply omit- ted a power of revocation, which is not usual in settlements for value, there was no evidence of improvidence, or ground for setting it aside, in the absence of fraud or mistake. Hilloch v. But- ton, 29 Chy. 490. Held, that 42 Vict. c. 22, ». ?, Ont. (amending the law of Dower) does not apply to a case of voluntary sale by a husband. See Calvert v. Black, 8 P. R. 255, p. 222. See Sanders v. MaUhurg, 1 0. E., 178, p. 325. VOTERS LISTS. See Parliamentary Elections. WAGES. See Master and Servant. WAIVER. I. Of Security for Costs — See Costs. II. Estoppel — See Estoppel. in. Laches— iSee Laches. IV. Of Conditions in Insurance Policies — See Insurance. The obtaining of an order for time to reply waives an objection that no notice to reply was served, and takes the place of such notice. Lock V. Todd, 8 P. R. 60. — Dalton, Q. C. Held, that in this case the defendant was pre- cluded by having accepted service of the writ with knowledge of certain irregularities and de- layed moving after the time for pleading had expired. Regina v. Stewart, 8 P. R. 297. — Osier. Of objection to jurisdiction by application for new trial. See In re Evans v. Sutton et al., 8 P. R. 367, p. 219. Of irregularity in return of commission. See Darling v. Darling, 9 P. R. 560, p. 245. Of conditions for inspection of grain. See Goodall V. Smith, 46 Q. B. 388, p. 7X4. Of forfeiture by breach of covenant to repair. See Leighion v. Medley, 1 O. R. 207, p. 408. Of excessive consignment of goods. See Good- year Rubber Co. v. Foster, 1 0. R. 242, p. 715. Of service of summons. See Regina v. Bennett, 3 0. E. 45, p. 100. 779 WATER AND WATER COURSES. 780 Where a sheriff seizes goods under writs of execution, and a mortgagee lays claim to them under a chattel mortgage, the fact that he sub- sequently directs the sheriff to sell under the executions, does not necessarily amount to a waiver of his claim under the mortgage. Segs- worth V. Meriden Silver Plating Co., 3 0. E., Chy. D. 413. By appearance and pleading to summons of justice of the peace. See liegina v. Bernard, 4 0. R. 603, p. 403. WALL. See BuiLBiNGS. WAEEHOUSEMEN AND WAREHOUSE RECEIPTS. See Bills of Lading and Warehouse Receipts. — Railways and Railway Companies. WARRANT FOR AEEEST. The prisoner was arrested in Toronto, upon information contained in a telegram from Eng- land, charging him with having committed a felony in that country, and stating that a war- rant had been issued there for his arrest : — Held, that a person cannot, under the Imperial Act, 6 & 7 Viet. c. 34, legally be arrested or detained here for an offence committed out of Canada, un- less upon a warrant issued where the offence was committed, and endorsed by a judge of a superior court in this country. Such warrant must dis- close a felony according to the law of this coun- try, and Semble, that the expression "felony, to wit, larceny," is insuflScient. The prisoner was therefore discharged. Hegina v. McHolme, 8 P. R. 452.— Cameron. See Beid v. Mayhee, 31 0. P. 384, p. 404; Be- gina v. Bernard, 4 0. R. 603, p. 403. WARRANTY. See Insurance. The defendants bought a vessel from the plain- tiff, who, as the jury found, warranted her to class B. ] , and promised to get her insured in a company, of which he was agent, for $1 ,400. She would not class as B. 1, and no insurance could be effected under that class ; but defendants sailed her uninsured until she foundered and was totally lost. In an action for the purchase money : — Held, that the measure of damages to which de- fendants were entitled for breach of the warranty was not the |1,400 for which she might have been insured, but the sum which it would have taken to make her class B. 1, which it was for defendants to shew. A mortgage was executed to secure the purchase-money, and registered with the Customs, and annexed to it was an instru- ment under seal, executed by defendants, reciting the mortgage, and that the terms of payment were set forth therein for convenience of registry,' and. " this indenture is executed for the purpose of evidencing the true agreement between the par- ties, which is hereinafter stated. " The terms of payment were then stated, differing from those in the registered -mortgage ; and defendants co- venanted to insure the vessel for $1,400, and assign the policy to plaintiff. The alleged war- ranty was verbal, and was not made out at the time of executing the writings, but defendants- swore that they would not have bought without the warranty, and would not otherwise have given over one-third of the price for a vessel, which could not lie insured : — Held, that evi- dence of the verbal warranty was admissible:, that it did not vary or alter the writings ; and that the declaration that the instrument was. made to evidence the true agreement referred merely to the terms of jjayment. LaRoche v. O'Hagan et al., 1 0. R., Q. B. D. 300. The plaintiff sued the defendant, a piano ma- ker, for breach of a warranty given by his sales- man on the sale of a piano, that the instrument was then sound and in good order. The plaintiff" signed the ordinary receipt note, which is set out in the report, providing for payment of the price, and that until paid the property should remain, in defendant, in which there was no mention of the warranty : — Held, that parol evidence of the warranty was admissible, as it was apparent that the receipt note was not intended to be the evi- dence of the whole contract, Quaare, whether this question should not have been left to the jury. Held, also, that the salesman had author- ity to give the warranty. QuEere, whether any evidence of an express warranty was necessary. Held, also, that the proper measure of damages to allow was the price ■« hich at the the time of sale would have been required to remove the al- leged defect, and the jury having given much more, the court named a sum to which the plain- tiff might reduce his verdict, or that there should be a new trial. McMullen v. Williams, 5 A- R. 518. Covenant to " warrant and defend" in assign- ment of patent right. See Green et al. v. Watson,. 2 0. R. 627, p. 587. By the Banking Act 34 Vict. c. 5, D., banks were prohibited from buying and selling goods or- merchandize: — Held, therefore that an action would not lie against an incorporated bank for breach of warranty on the sale of a horse-power-, machine. Badford v. The Merchants Bank, 3 0. R., C. P. D. 529. On sale of timber limits. See Ducondu v. Dupiiy, 9 App. Cas. 150, p. 758. WASTE. Impeachment of tenant for life for waste. See- Clow V. Clow, 4 0. R. 355, p. 799. WATER AND WATER COURSES. I. Acceetion, 781. II. Forming Boundaries, 781. III. Rights and Liabilities oe Ripaeun. Propeietoks. 782. 781 WATER AND WATER COURSES. 782 IV. Floating Timber, 782. V. Liability of Municipalities fob in- jury CAUSED BY Drains akd Sewers 783. VI. Ditches and Watercourses Act, 785. VII. Assessment for Drainage, 785. VIII. Drainage By-laws — See Municipal Corporations. IX. Bridges oVer Rivers— ;S'ee Way. X. Harbours— 5ee Harbour. I. Accretion. By 10 Geo. IV., c. 11, the Cobourg Harbour Company were authorized to construct a har- bour at Cobourg, and also to build and erect all such needful moles, piers, wharves, buildings and erections whatsoever, as should be useful and proper for the protection of the harbour, and to alter and an^"- 1 repair and enlarge the same as might be ^ound expedient. The har- bour company commenced their work in 1820 by running a wharf southerly from the road allowance, betwetn lots 16 and 17 of the town- ship of Hamilton, which now forms Division Street in the town of Cobourg. By means of the mud and earth raised by dredging and gradual accretions, which were prevented from being washed away by being confined by crib- work, the original wharf was widened to the full width of Division Street, and in addition they con strncted a storehouse and placed a fence divid- ing it from the land which appellant (whose lot fronted ou Division street, and extended to the waters' edge,) had gained by accretion since the addition to the original wharf was made. There- upon the appellant filed a bill complaining that his access to this alluvial land was obstructed by the St rehouse and fence which the respondents caused to be placed on the addition to the wharf and praying that the respondents, other than the attorney-general, be decreed to remove them : — Held, 1. That land gained by alluvial deposits arising from natural or artificial causes or from causes in part natural and in part artifi- cial, so long as the fact is proved that the accre- tion was gradual and imperceptible, accrues to the owner of the adjacent land. 2. That the storehouse and fence complained of in this case were not constructed on any part of Division Street, but on an artificial structure constructed under the authority of a statute on the line of Division Street for harbour purposes, and, there- fore, appellant was not entitled to be indemni- fied because he was denied access to his alluvial land through the premises of the respondents. 3. That the public right of way from the end of Division Street to the waters of Lake Ontario, was extinguished by statute by necessary impli- cation. Corporation of Yarmouth v. Simmons, L. R. 10 Ch. D. 518, followed. Slandly et al. V. Perry et al, 3 S. C. E. 356; 2 A. R. 195. II. Forming Boundaries. Biver Rideau boundary between townships of Gloucester and JSTepean and the city of Ottawa. See Begina v. The Corporation of the County of Carle-ton, 1 0. K. 277, p. 792. See McArthur v. Gillies, 29 Chy. 223, p. 782. III. Rights and Liabil:ties of Riparian Proprietors. Under a conveyance of land, on a stream not navigable, described as running from, &c., " south, &c., to the northern side of the * * river, * * then north-easterly along the bank of the said river, with the stream to the centre of the said lot" : — Semble, that thegrantee was bound by the bank of the river, and had not any right to extend the boundaries to and along the middle or thread of the stream ; but. Held, whether he had or had not such right, he could not by reason thereof erect any structure in the stream that could or might affect prejudicially the flow of the water as regards other riparian proprietors. McArthur v. Oillies, 29 Chy. 223. The patent from the crown of a lot of land situate on the bank of a river, reserved free access to the bank for all persons, vessels, &c. There was a quantity of stone on the lot, which the plaintiff desired to quarry, but was prevented by the penning back of the water of the river by the defendant, the owner of a mill thereon below the plaintiff's land : — Held, that the reservation by the crown in the grant was merely an ease- ment to the public, notwithstanding which the plaintiff was a riparian proprietor, and as such entitled to complain of the injury caused by the penning back of the water. The parties desired the assistance of scientific evidence as to the height of the defendant's dam and the effect of raising it. The court (Proudfoot, J.) appointed an engineer to inspect and report thereon, re- serving the costs until his report should be obtained. Hawkins v. Mahaffij, 29 Chy. 326. 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 law- ful 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 extraordinary pui-pose. Dickson v. Carnegie, 1 0. R., Chy. D. 110. Obstructing flow of water to mill. See The Mushoka Mill Co. v. The Queen, 28 Chy. 563, p. 596. In granted and ungranted lands. See Regina V. Robertson, 6 S. C. R. 52, p. 123. IV. Floating Timber. The plaintiff, who claimed the exclusive uses of certain streams flowing through his lands, which right the defendants denied, obtained an interlocutory injunction restraining the defen- dants from using his improvements thereon for floating down their logs upon the usual under- taking to pay any damages sustained thereby : — Held, reversing the order of Proudfoot, V. C. (Armour, J., dissenting) that the plaintiff was not entitled to an interlocutory injunction, as it was not shewn that irremediable damage would result from refusing it, or that the balance of in- convenience was in his favour. McLaren v. Caldwell et al, 5 A. R. 363. The plaintiff, a lumberman, was the owner in fee simple of several parcels of land and large tracts of timber. A stream, ou parts of the bed of which he had the fee simple, ran through his 783 WATER AND WATER COURSES. 784 lands, which, in its natural state, had not the capacity for floating timber at any time of the year. The plaintiff and those through whom he claimed spent large sums of money in making improvements upon the stream and in deepening it, and thereby making it floatable. The defen- dants, who owned the timber limits in the neigh- bourhood, claimed the right to float their timber down the stream : — Held, reversing the judgment of Proudfoot, V. C, (Burton, J. A., dissenting), that the stream was a public waterway by virtue of 0. S. U. C. c. 48, s. 15, which by its terms, applies to all streams, whether of natural capacity to permit timber to be floated down them or not ; and thit the defendant had the right to float timber down the same stream during the spring, summer, and autumn freshets, without compen- sation to the plaintiff. The appeal was allowed without costs, as the improvements had been made and the bill filed, relying on the authority of Boale v. Dickson, 13 C. P. 337, which was properly followed by the learned V. C, but was overruled by this court. Per Burton, J. A. — By the common law those streams only which are sufficiently large to float boats or transport prop- erty are highways by water, and not small streams which are not susceptible for use as a common passage for the public. The statute was not in- tended to confer any new right, but to remove all doxibt as to the right of lumberers to use all streams capable, in their natural state, of trans- porting timber, even although only in times of freshets. S. C, 6 A.R. 456. Held, that the right conferred to float timber and logs down streams by Canadian Statute 12 Vict. c. 87, o. 5, is not limited to such streams as in their natural state, without improvements, during freshets, permit said logs, timber, &c. , to be floated down them, but extends to the user without compensation of all improvements upon such streams, even when such streams have Keen rendered floatable thereby. Boale v. Dickson, 13 C. P. 337, overruled. Such right is only con- ferred by the statute during freshets ; qufere as to the rights at other seasons of the year of the parties, that is, of the lumberers on the one side, and the owners of the improvements and the bed of the stream whereon they have been effected on the other. S. C.,sub-7wm. — Caldioell v. McLaren, 9 App. Gas. 392. Judgment of Supreme Court, 8 S. 0. K. 435, reversed. [See 47 Vict. .^. 17, Ont.] V. Liability of Municipalities foe Injury Caused by Drains and Seweks. To a declaration charging negligence in the construction and maintenance of drains, in order to drain the streets of a town, whereby the drains were choked and the sewage matter over- flowed into plaintiff's premises, defendants plead- ed that the cause of action did not accrue within three months : — Held, bad, as sec. 491 of the Municipal Act (R S. 0. c. 174) did not apply. Sullivan v. The Corporation oj the Town of Bar- rie, 45 Q. B. 12. The plaintiff leased premises at the corner of Queen and Bathurst Sti-eets, which ra^i at right angles to each other, in Toronto. There was a „„. „ main sewer on Queen Street, with which plain- Ueid, 2 6. R.,'q. b7d."287' tiff's private drain, constructed by the defend- ants at the expense of the plaintiff's lessor, con- nected, and which had been extended westward. There was therein, at or about Portland Street, a wall, said to be for the purpose of dividing the water and causing it to flow eastward and west- ward. There was a sewer on Bathurst Street, south of Queen Street. Subsequently, and about four years before the action, a sewer was con- structed on Bathurst Street, north of Queen Street. Into this sewer a creek was turned, in which at times the water was .six feet deep ; and a number of cross streets drained thereinto. Within the four years before action, but never before, the plaintiff's cellar had been flooded several times, and the cause of this action was the flooding during a steady rain of eight or nine hours duration. The plaintiff alleged originally defective construction of sewers, and negligeiice in not repairing, but simply proved the flooding and the above facts, and the jury found a ver- dict for him. A now trial was directed, Armour, J., dissenting. Per Hagarty, C. J„ and Cameron, J. The mere proof of the flooding did not es- tablish a prima facie case of negligevce against the defendants ; a specific ground of negligence must be proved, and there was no sufficient evi- dence of position, connection, capacity, and levels of the sewers on Queen and Bathurst Streets. Per Cameron, J. Remarks as to the difference in the liability of, or injuries caused by sewers and by highways. Per Armour, J. The fact of the flooding of sewers constructed, controlled and managed by the defendants, was prima facie eri- dence of negligence ; but the fact that no flood- ing had occurred before the construction of the Bathurst Street sewer north of Queen Street, coupled with the other evidence, was sufficient to shew prima facie that that sewer brought down more water than the Queen Street sewer, and Bathurst Street sewer, south of Queen Street, were capable of carrying away rapidly enough, and that the plaintiff was entitled to recover. A'^oble v. The City of Toronto, 46 Q. B. 519. The defendants in 1865 passed a by-law for the construction of a drain which went through the plaintiff's land, and for assessing certain lands, including the plaintiff 's, therefor. The drain was commenced in 18S6 and completed. In 1873 they passed another by-law for widening and deepening this drain, which was accordingly done. In 1881, they constructed another drain running into the first below the plaintiff's land. The first drain having become out of repair and choked up, the plaintiff's lands were to some ex- tent flooded in the spring and autumn, and the water lay longer than if the drain had been kept properly clear : — Held, affirming the judgment of Hagarty, C. J., (Cameron, J., dissenting,) that the plaintiff was entitled to recover against the defendants for their breach of duty in not keep- ing the drain in repair, under R. S. 0. c. 174, s. 543. and that a mandamus should issue to com- pel the defendants to make the necessary repairs. Per Cameron, J. An action is expressly given by s. 542 for injury done by such neglect, where the drain serves two municipalities ; but in a case like the present, though under s. 543 the munici- pality may be compelled by mandamus to repair the drain at the expense of the lands benefited, no action lies for injury caused by non-repair. Wliite V. Corporation of the Township of Oos- 785 WAY. 785 Where a municipality, acting under the Onta- rio Drainage Act, in pursuance of a scheme for the drainage of their township, constructed a system by which water was drained off into a certain drain formerly constructed through the ^laintiflf 's land and running into a natural creek, whereby the creek, by reason of the accumula- tion of water caused by the new drains, though sufficient before to carry off the water brought down into it, overflowed and injured the plain- tiff 's land :— Held, that the defendants were lia- ble for any damage thus caused to the plaintiff, and there was nothing in the municipal or other legislation of this province to change the illegal -character of such an act. It appeared, however, that the plaintiff's property hid been benefited by the dr.iinage works as a whole to a greater -extent than it had been injured by the overflow complained of, and the defendants acceded to the reasonableness of the plaintiff 's demand for a better outlet, and were proceeding to make it : — Held, that under these circumstances it was suffi- -cient for the present to declare the plaintiff en- titled to have the creek widened and deepened i;o the necessary extent within a reasonable time. Nortkwood V. The Corporation of the Township of Raleigh. 3 0. R., Chy. D. 347. VI. Ditches and Water Courses Act. Held, that the defendants a railway company, -were not subject to the provisions of " The Ditches and Water Courses Act," R. S. 0. c. 199. lifiUer V. Grand Trunk Railway Co., 45 ■Q. B. 222. VII. ASSESSIIEN'T FOR DRAINAGE. See McLean v. The Corporation of the Toivn- ship of Ops, 45 Q. B. 325, p. 488 ; In re Brock V. riie Corporation of the City of Toronto, 45 Q. B. 53, p. 490. WAY. I. Creation of Highways. 1. Dedication, 786. 2. Private Way. (a) By Grant or Necessity, 786. II. Powers and Duties of Municipal Corporations. 1. Opening Roads, 788. 2. Closing Roads, 788. 3. Fencing Ditches, 788. 4. Repairing Roads. — See IV., p. 790. 5. Railways on Streets — See Railways AND Railway Companies. -III. Road Companies, 789. TV. Repairing. 1. Appropriating Material, 790. 2. Liability of Municipality for Negli- gence, 790. 3. Liability of Railway Companies— See AND Railway Com- Railways PANIES, V. Obstruction of Public and PRrvATB Ways. 1. Generally, 790. 2. By Railways — Se« R.ULWAYS and Railway Companies. VI. Sidewalks, 791. VII. Bridges. 1. Generally, 791. 2. Repairing -See IV. p. 790. 8. Injunction with respect to — See Injunc- tion. VIII. Tolls, 792. IX. Trees, 793. X. Traction- Esgines, 793. XI. Quebec Turnpike Trust, 793. I. Creation of Highways. 1. Dedication. The corporation of East Whitby by by-law closed up an old travelled road, whereby the applicant was shut out from ingress to his lands except by a short road leading to the original road allowance, which was now for the first time opened. For some years prior to 1844 the short road was used as a private road for the conve- nience of persons going to F. 's place, mUls, brew- ery, and distillery. In 1844 F. conveyed the land on each side of it to his son and son-in-law, but no mention of it was made in the deeds. The wife of the purchaser from the son-in-law, while speaking to F. at one time about the title, as to which some dispute arose, complained that the old travelled road might be closed up. F. re- plied that they would still have the short road leading to the road allowance, which would still be opened if the old travelled road were closed : — Held, that the latter statement, in connection with the facts of the former user of the road, and of its not havingbeen disposed of when P. disposed of the lands on each side thereof, sufficiently shewed the intention to dedicate the short road to the public : that the applicant had therefore another convenient way to his lands,and that the by-law should not be quashed ; but, under the circumstances, no costs were given. Adams and the Corporation of the Township of East Whitby, 2 0. R., Q. B. D. 473. See Rae v. Trim, 11 Chy. 374. p. 200 ; In re Morton and the Corporation of the City of St. Thomas, 6 A. B. 323, p. 200. 2. Private Way. (a) By Grant or Necessity. AVhere C. , by deed conveyed certain land to S. , who owned certain land adjoining the land of C, but not adjoining the land now conveyed, and the deed proceeded — " and I further convey the right of way to cross my land * * from the highway * * to the land owned by S., * to have and to hold the aforesaid lands and premises with the appurtenances unto and to the use of S. , his heirs and assigns forever : " — Held, that the right of way was not a mere way ■50 787 WAY. in gross, but Became appurtenant to the land of S., generally, and not merely to the land con- veyed by the deed. The word "premises "in the deed may cover not merely the land convey- ed, but all that goes before in the deed. Saylor V. Cooper, 2 0. E., Chy. D. 39S. Where C, conveyed to S., land which was in- accessible from the highway without passing over the lands of C, or some other person : — Held, that a way of necessity was impliedly granted by C. , over his land conveyed to S. Jb. Since a way of necessity can only pass with the ■grant of the soil, the owner of the legal estate in the land as to which it is claimed, should be a party to an action claiming such way, and where an equitable owner of the land sued, he was per- mitted to make the owner a coplaintifi' by amendment at the hearing. lb. Held, on appeal that the words employed in the deed were sufficient to pass the interest in- tended, and that the right of way was thereby made appurtenant to all the lands of S. there situated ; not merely to that so conveyed by C. S. C, 8 A. R. 707. B. and W., becoming entitled in 1830, as ten- ants in common of 100 acres of land, under a devise, made a partition thereof by agreement, whereby 50 acres were allotted to each in sever- alty. TheSOacres allotted toB. were land-locked, and there was no way cut to the highway, except over the 50 acres of W. , over which accordingly B. was allowed by W, to pass at will. In 1840, \V. sold to B. the 30 acres of his 50, next adjoining B.'s 60 acres, and also a strip for a road across the other 20 acres. In 1848 E. granted to the then owner of B. 's 50 acres a strip for a I'oad along the north side of his 30 acres, and also the strip along W. 's 20 acres conveyed to him in 1840. This made a change in the course of the way theretofore used by B., and his suc- cessors, and was thenceforth the course followed by the latter, and was the right of way in ques- tion in this action ; but this deed was not registered till 1882. B.'s parcel subsequently became vested in the plaintiff, under conveyances granting not only the land, but also all way s, &c. , therewith used and enjoyed. The defendant claimed title to part of W.'s 50 acres by deed made in i'854, without notice, as he alleged, of the deed of 1848. The right of way in question had been used by the plaintiff, and his prede- cessors in title for over 30 years, prior to the obstruction thereof by the defendant, to restrain which this action was brought :— Held, that the effect of the will and agreement together was the same as if the will itself had devised the one half to B., and the other to W., and the plaintiff had a right of way of necessity over the defend- ant's Lnd and was entitled to an injunction to restrain the obstruction complained of ; and it was not necessary for him to shew any express grant of the right of way by the defendant, or his predecessors in title :- Held, however, that the right of way would have passed under the grant of the land, and all ways, &c. , used and enjoyed therewith, as also under a deed of grant drawn according to the Act respecting short forms of conveyances, even if it had not been a w ay of necessity, and no such words were neces- sary in order to pass a way of necessity : — Held, also, that the subsequent express grant of a right of way by the defendant's predecessor in title, did not destroy the right to a way of necessity : — Held, also, that the defendant having notice of an actual travelled way across his land was affected, also, with notice of the origin, as well as the existence of the right :— Held, also, that changing the locality of the way, from time to time, by the agreement of the respective owners, did not destroy the right of way, nor could the grant of a certain specific line for the road put an end to the right, in case a purchaser should buy without notice of the grant : — Held, lastly, that any act of a tenant, without the knowledge or sanction of the landlord, could only affect his interest as tenant, and could not prejudice the re- versioner. Dixon V. Cross, 4 0. E., Chy. D., 465 Semble, that a way of necessity does not give a right to the owner of the dominant tenement to cross any part of the servient tenement at plea- sure, but is confined to a definite way to be de- termined by the agreement of the parties, or by the owner of the servient tenement, or of the dominant tenement in his default. lb. II. POWBB.S AND DtJTIES OF MUNICIPAL CoR- POHATIONS. 1. Openitifj Roads. A by-law passed by a municipal corporation cannot have the effect of taking any lands of the Crown in addition to those appropri:ted by the Crown for the purpose of highways in order to the opening up of the country. Bae v. Trim, 27 Chy. 374. Held, where a by-law has been passed for opening a road over certain land, the municipal- ity is not bound under B. S. 0. c. 174, a. 456 to make compensation to the owner before entering on the land. Harding v. Corporation of the Town- ship of Cardiff, 2 0. E., Chy. D. 329. 2. Closing Roads. Held, that the notice of intention to pass a by- law to close a road should state the day on which the municipal council intend consideiing the by- law. Semble, that.the mere fact of the relator having knowledge aliunde was not a sufficient answer to an application by him to quash for want of a proper notice of the day on which the by-law was to be considered. Jn re Birdsall and Farrar and The Corporation of the Township of Asphodel, 45 Q. B. 149. The power of a municipal council to close up a road, under section 504 of the Municipal Act, ■« hereby any one is excluded from access 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 clos- ing the road may be quashed. The onus of shewing that another convenient road is open to the applicant is upon the corporation. Adams and The Corporation of the Township of Mast Whitby, 2 0. E., Q. B. D., 473. 3. Fencing Ditches. In driving along a country road the plaintiffs were injured by their horse and buggy falling 789 WAY. 790 into a ditch at the side of the road. It was shewn that the roadway between the ditches was thirty feet wide : that the ditch was of the same char- acter as those along other roads in the county : and that in some places where the ditches are deeper than usual there are guards. There was evidence produced on the part of plaintiffs which, if believed, established facts from which a jury might draw the inference that the ditch, con- structed where and as it was, was dangerous, al- -though there was evidence on the part of the defendants to the contrary. The jury found a verdict for the plaintiffs, but the Court of Com- mon Pleas afterwards, upon a rule nisi to enter a nonsuit or for a new trial, granted a nonsuit, holding that the having made a ditch without guards or railings, or without slanting the road- way to the bottom of the ditch so that a person could drive into it without upsetting, was no evidence of neglect on the defendants' part to keep the road in repair. Held, reversing this judgment (30 C. P. 217), that it was a question of fact for the jury, whether, having regard to all the circumstances, the road was in a state reasonably safe and fit for ordinary travel.' As the court below had pronounced no opinion as to whether there should be a new trial or not, the appeal was simply allowed, setting aside the nonsuit, but leaving the question of new trial untouched. Walton at vx. v. Cm-poration of the County of York, 6 A. R. 181. III. Road Companies. The provisions of the " General Road Com- panies' Act" (R. S. 0. c. 152), respecting the ex- tension of roads, apply to roads which have been constructed and completed, and tolls established thereon . In this case the extensions were new constructions within the city of Hamilton, and, measured separately, were less than two miles, though the distance of the original road and the extensions together much exceeded two miles ; — Held, that the defendants were entitled to exact tolls therefor. The toll gate had been main- tained for nearly nine years on the portions of the road within the city of Hamilton : — Held, that this did not preclude defendants from erect- ing a gate and taking toll there. Knott v. Tlie Eamiltou and JPlamborougli Road Company, 45 Q. B. 338. Under "The General Road Companies Act," R. S. 0. c. 152, ss. 102, 104, 109, the first engi- neer appointed to examine a road alleged to be out of repair, must act throughout the proceeding unless another is appointed under sec. 109 ; but under that section the judge is the person to be satisfied that the first engineer is unable to make or complete the examination, and his decision on that point cannot be reviewed. The engineer appointed under the Act need possess no official certificate or degree. The second engineer hav- ing been appointed in January to examine and report " as to the present condition of the road" made an examination and so certified, but was unable to report whether the repairs directed by the previous engineer had been performed, as it was covered with snow. In May foUowmg, without any further authority, he agam ex- amined and certified that it was in good repair, and the company began agiin to take tolls :— Held, that he was functus oflScio after the first examination, and that the tolls therefore were illegally imposed. Regina v. Greaves, 46 Q. B. 200. IV. Repairing. 1. Appropriatmg Material. Pursuant to a by-law of the town of IngersoU, pei-mitting that municipality to take gravel from C.'s land for repairing tlieir streets, without mentioning the quantity, the award was made that the corporation should "pay C. 32^ cents for every load of gravel or stone they should take for the repairs of their roads, as and fof compensation for the injury done, and that the right to take such gravel at this price should ex- tend for five years" : — Held, that the by-law should have defined the quantity of gravel re- quired to be taken, and the award should have fixed the value of such quantity as well as the amount to be paid for the right of entry to take the same away, and therefore that the award was bad. In re the Corporation of the Town oj IngersoU and Carroll, 1 0. R., Q. B. D. 488. 2. Liability of Municipality for Negligence. A portion of a highway which the defendants- were bound to keep in repair had a trench run- ning across it caused by water escaping from a culvert, and was allowed so to continue out of repair for a mouth. The deceased while law- fully ti:avelling along the road which he had passed over the day before, attempted to cross such trench in a waggon, from which he was thrown and killed. In an action for damages, it was alleged by the defendants that deceased was well aware of the defect in the road, if any, and at the time of the accident was intoxicated, and thus contributed to the accident. It was left to the jury to say whether the deceased had so contributed to the accident, that biit for want of reasonable care it would not have occurred. The jury answered this in the negative, and rendered a verdict in favour of the plaintiff: — Held (affirm- ing the decision of the Court of Queen's Bench, who refused a rule nisi to enter a nonsuit), that the question oi contributory negligence was one for the jury, and could not have been withdrawn from them. Maw v. Townships of King and Albion, 8 A. R. 248. See Walton et ux. v. The Corporation of the County of York, 6 A. R 181, p. 789. V. Obstruction of Public and Private Wats. 1. Generally. Held, (Armour, J., dissenting) that the Ontario- Act (R. S. 0. c. 108) reducing the period of limi- tation to ten years, does not apply to the interrup- tion of an easement, such as a right to a way in alieno solo, in this case a lane, which the defen- dant had occupied and obstructed for ten years, but which the plaintiff had used prior to such- obstruction. Mykel v. Doyle, 45 Q. B. 65. An arrangement made between the plaintiff and B., whereby the latter "was allowed to go through" the plaintiff's land, was superseded by an arrangement whereby, in consideration of 150- cords of wood and the making of a road by B., r9i WAY. 792 the latter was to have a right of way through the same land. The plaintiff M'as to erect and keep up the gate at one end, and B. was to keep up the gate at the other end of the road. The wood was delivered, aud the road made, according to the terras of the agreement. The plaintiff sub- sequently erected three additional gates along the course of the right of way, which were not necessary for the enjoyment of the land. The bill was filed to restrain the defendant from using the way except upon the terms of shutting those three gates when going through: — Held, revers- ing the decree of Spragge, C, that the right of way having been purchased when there were but two gates, the plaintiff had no right to fetter the enjoyment of the way by adding additional ^ates. Kastner v. Beadle, 29 Ohy. 266. See Standly et al. v. Perry et al., 3 S. 0. R. 556, p.. 781. VI. Sidewalks. The defendants were the owners of a building •on the street. A pipe, connected with the eave troughs, conducted the water from the roof down the side of the building, and by means of a spout ■discharged it upon the sidewalk, where in the winter it was formed into a ridge of ice, upon which the female plaintiff slipped and fell while walking on the street and injured herself. The jury found that the defendants did not know of the accumulation of ice, aud that they ought not reasonably to have known of it : — Held, Armour, dissenting, that the defendants were not liable. Per Hagarty, (.'. J. The carrying of the water to the sidewalk was a harmless act ; the action of the weather was the proximate cause of the accident, and the defendants not having know- ingly allowed ice to accumulate were not respon- sible. Per Armour, J. The conducting of the water to the sidewalk was a wrongful act, of which the formation of ice on the sidewalk in winter was the natural certain and well known result, and the defendants were responsible for the accident. Skelton et itx. v. Thompson, 3 0. R., Q. B. D. 11. VII. Bridges. 1. Generally. The township of Gloucester and the city of Ottawa, which was part of the township of Ne- pe.xn, are on the easterly and westerly sides respectively of the river Rideau, aud both with- in the county of Carleton. In the river at this point is situate Cumming's Island, and a bridge extended from the Ottawa side to the Island, and from the opposite side of the Island to the Gloucester shore. A line drawn down the middle of ,the river equidistant from the banks, without regard to any islands, would leave the greater part of Cumming's Island on the Gloucester side, but the channel between the Island and Glou- cester is the most navigable, while the largest amount of water passes through the other chan- nel : -Held, that a line so drawn properly ascer- tained the limit between the adjoining munici- palities, for the words "middle of the main channel," used in 14 & 15 Vict. c. 5, s. 11, and R. S. 0. c. 5, s. 10, have their common law signification of the middle of the stream, and therefore the Island formed part of the township of Gloucester, and that part of the bridge from the Island to the latter township was wholly within that township. Per Armour, J. — If this be not the true construction, then, as the Legis- lature were dealing with territorial and proprie- tary rights, and not with navigation, the words "main channel" mean the widest and not the deepest or most navigable channel, in which case also the Island would be wholly within Glouces- ter. The county was found guilty on an indict- ment for not keeping the bridge in repair, which had been removed into this court, but the indict- ment described the bridge as being in the town- ships of Gloucester and Nepean: — Held, that by 12 Vict. 0. 81, s. 201, schedule B 4, the easterly limit of Ottawa is the middle of the river, and is coincident with the westerly limits of Glou- cester, and that no part of the township of Nepean lies between Ottawa and the river ; and the bridge was therefore wrongly described as being in the two townships : — Held, also, that though this could have been amended at the trial, it could not be amended on this motion, and a new trial was ordered. Per Cameron, J. The situation of the island in the river should not affect the liability of the municipality, for the bridge was evidently a county work, being intended to span the whole river and form a way from one bank to the other, the island, which was out of the direct course that the bridge would otherwise have taken, being merely used for engineering purposes : — Held, also, that under R. S. 0. c. 174, s. 495, the duty of main- taining the bridge was cast upon the city and county. Regina v. The Corporation ot the County of Carleton, 1 0. R., Q. B. D. 277. VIII. Tolls. The plaintiff, a stage driver, was in the habit of driving passengers over that part of the road of a company incorporated under C. S. TJ. 0. c. 49, and previous Acts, from T. to the terminus of a street railwaj' laid down on the line of the road, being between two principal gates on the road, a distance of nearly three miles, thus using many miles of the road daily. The defendant who was the lessee and manager of the road, ere cted a check gate across the road at a point within the space travelled by the plaintiff, and then enforced payment of a toll of five cents each way from the plaintiff, giving a ticket to pass through the principal gate beyond : — Held, that such check gate was legally erected, and the toll was legally demanded ; and that the fact that the plaintiff did not intend to pass through a prin- cipal gate could make no difference. , The road company consisted of four persons, of whom F. and another personally signed an authority to the defendant to erect the gate, and F. signed for the other two under powers of attorney for the management of their affairs, but not specially referring to this road. After action commenced these two ratified F. 's act by endorsement on the back of the authority : — Held, sufficient. Van- derlip v. Smyth, 32 C. P. 60. Held, that the plaintiffs had the power to de- mise to the defendant the right to collect the tolls upon one of the township roads ; that such right should be exercised under a general or special by-law authorizing it ; but that this ob- jection was not open to the defendants, the 793 WILL. 794 lessee and his sureties, the former having enjoyed the benefit of the demise during the whole term. The toll-gate was beyond the limits of the plain- tiffs' municipality upon the Barton side of the road, Barton and Ancaster being adjoining town- ships : — Held, that an objection to the plaintiffs' right to collect tolls thereat could not be main- tained, for the plaintiffs might have the title thereto under the General Road Companies Act, R. S. 0. 0. 152, s. 63 ; and there was nothing to shew that the whole road allowance between the two townships was not part of and vested in the plaintiffs ; also, under R. S. 0. o. 174, ss. 498, 499, there might have been a by-law of the adjoining municipality giving the plaintiffs the right to erect such toll-gate ; and even without suchhy-lawthe plaintiffs' encroachment may have been acquiesced in. I'he Corporation of the Town- ship of Ancastei- v. Ourrand et al, 32 0. P. 563. See Canada Southern R. W. Co. v. The Inter- national Bridge Co., 8 App. Cas. 723 j 7 A. E. 226 ; 28 Ohy. 114, p. 387. See also Sub-head III, p. 789. ' IX. Trees. Held, that the owner of land adjoing a high- way has, under R. S. O. c. 187, such a special property in the shade and ornamental trees growing on such highway opposite to his land as to entitle him to maintain an action against a wrongdoer to recover damages for the cutting down or destroying such trees ; and he is not restricted to the penalty given by sec. 5 : — Held, also, that the Act refers to trees of natural growth as well as to those planted. In this case the damage consisted in the cutting down of some ten or twelve of the trees, for which the plaintiff was awarded $150 : — Held, not excessive. Douglas v. Fox et al., 31 C. P. 140. [See 47 Vict., c. 36, a. 1 Ont.] X. Tkaction Engines. See The Corporation of the County of York v. The Toronto Oravel Road and Concrete Co., 3 0. R. 584, p. 129. XI. Quebec Turnpike Trust. See The Queen v. Belleau, 7 App. Cas. 473, reversing 7 S. C. R. 53, p. 121. WELLAND CANAL. Compensation for lands taken. See In re The Wetland Canal Enlargement- FUch v. McRae, 29 Chy. 139, p. 113. WHARF. See Standly et al. v. Perry et al, 3 S. C. R. 356, p. 781. WIFE. See Husband and Wife. WILD LANDS. Title by possession to wild land can be made- out otherwise than by actual enclosure. See Steers v. Shaw et al, 1 O. R. 26, p. 431. WIDOW'S ELECTION. See Dower. WILL. I. CoMPETENCr OT TESTATOR, 795. II. Ageebmbnts to Bequeath Propbrty,- 795. III. Construction and Interpretation op Wills. 1. Generally, 796. 2. After Acquired Property, 796. 3. Particular Words and Expressions, 796. 4. Period of Distribution, 797. 5. Misdescription in Will, 797. 6. Estate or Interest Taken. (a) Estate Tail, 797. (b) Life Estate, 798. (c) Joint Tenants and Tenants in Common, 799.'' (d) Vested or Contingent, 801 . (e) Vested Liable to be Divested, 803. { f ) Taking per Stirpes or per Capitar 804. ( g) Executory Devise, 804. (h) Bequests of Personalty, 804. 7. Remainders, 805. 8. Conversion, 805. 9. Residuary Estate, 806. 10. Estate or Interest taken by Trustees or Executors, 806. 11. Investment of Securities, S(fl . 12. Aniiuities, 807. 13. Legacies. (a) Satisfaction, 809. (b) Lapse, 809. (c) Abatement, 809. (d) Charged on Land, 810. (e) Demonstrative or Specific, 810. (f ) Cumxdative or Substitutional, 810. (g) Conditional, 811. (h) Interest on, 811. (i) Liability to refund, 812. 14. Provisions for Support and Mainten- ance, 812. 15. Power of Appointment, 812. 16. Conditions in Restraint of Alienation,. 813. •795 WILL. 796 17. Election. (a) By Heir, 813. (b) By Widow. — See Dower. 18. Oiving Eight to Purchase, 813. 1 9. Void Devises or Bequests, {a ) To Jieligious or Charitable Uses, 814. (b) To Attesting Witness, 816. (c) To Foreign State, 816. 20. Perpetuities, 816. 21. Forfeiture of Devise, 817. IV. Rkgistkation of Wills — See Eegistby Laws. V. Cos'is OF Contesting and Constkuing Wills, 817- VI. Miscellaneous Cases, 817. VII. Donatio Moetis Causa. See Gift. I. Competency of Testator. The testator, a man of education, had become :so weakened by illness as to be confined to his bed for some time prior to his death, and a day or two before that occurred executed a will, by affixing what was intended as his mark thereto, the in- structions for which were obtained by the person preparing it by putting questions to the testator as to the disposition of his different properties, such will when drawn having been read over to the testator clause by clause, who expressed his assent to some of them while as to others he made intelligent remarks and some changes in the pro- visions thereof. The Court [Blake, V. C.,] in a suit brought to impeach the will as having been obtained by fraudulent practices and undue influ- ence of persons benefited thereunder, as well as by the persons concerned in the preparation of the will, refiised the relief sought, and dismissed the bill, with costs to be paid out of the residu- ary estate ; although it was shewn that though notice had been given to the testator, he was wholly unprepared to make the will when he came to the act — that there was no intention on his part to make a will — that he was a man who, when in possession of his mental faculties, was not likely to take suggestions from others — that not a single devise originated with the de- ceased—that the author of the will did not know what property the deceased had — that he admit- ted that if he had had this knowledge he would have spoken to him seriously on the subject of his relations, of whom there were several — that the will was inofficious — that the testator was 84 — that it took two hours to prepare the will, although it covered but one foolscap sheet — and that they sent for and obtained the numbers of the lots from a neighbour, thus shewing that they could not obtain the information from the •deceased. Thomson v. Torrance et al. , 28 Chy. -233. AfSrmed 9 A. R. 1 See Bell v. Lee, 8 A. R. 185, p. 813 II. Agreements to Bequeath Peopeety. The testator, father of the plaintiff's wife, sug- j;ested to him to purchase a lot of land which was subject to a mortgage, saying that if he would do so, and have the property conveyed to his (plaintiff's) wife he would pay off the incum- brance. The plaintiff in consequence made the purchase, and had the property conveyed as sug- gested, but the testator refused to pay the in- stalments on the mortgage and the plaintiff was compelled to pay it off himself. The testator subsequently expressed his regret at having thus acted, and promised the plaintiff that he would do better for them ; that he would pay plaintiff |150 a year for ten years, and bequeath to his wife 11,000. By the will, however, only $100 was left to her, and the plaintiff instituted the present suit against the representative of his father-in-law to enforce such second agreement, or for payment of damages by reason of the breach thereof. The only direct evidence was that of the plaintiff. At the hearing there were produced two receipts signed by the daughter for |260 and $200, respectively, expressed to be on account of money left her by her father's will ; and witnesses swore that the testator had told them that he had agreed to pay for the place if the plaintiff would take out the deed in his wife's name, and that he was making the payments as the plaintiff had so taken the deed : — Held, that there was sufficient corroboration of the evi- dence of the plaintiff as required by (R. S. 0. u. 62), and that the second agreement or promise by the testator was not voluntary, the former promise, even if barred by the statute, being a sufficient consideration, as well as the conveyance to the daughter made in pursuance of it ; and a decree was made for payment of the legacy of |1,000, less the two sums of |260 and f 200, with interest from one year after the death of the testator on the balance. Halleran v. Moon, 28 Chy. 819. See Roberts v. Hall, 1 O. R.. 388 p. 338. III. Construction and Interpretation of Wills. 1. Generally. It isja principle of construction that the same meaning shall, as far as possible, be given to the same words in the same will. Boys' Home of the City of Hamilton v. Lewis et al., 4 0. R., Chy. D. 18. 2. After Acquired Property. The testator owned eighty acres' of land, and sold a part thereof ; subsequently, and on the 30th March, 1875, he made his wUl, whereby he devised to his son N. the said eighty acres, ' ' excepting so much thereof as I may have sold and conveyed. " Thereafter, and shortly before his death, he again acquired the part which he had sold : — Held, that although the wiU spoke from his death, the after-acquired property did not pass, for the testator had specified the subject matter of his devise, within which the property in question was not included. Vansickle et al. v, Vaniickle et al. , 1 0. R., Chy. D. 107. Reversed on appeal, 9 A. R. 352. 3. Particular Words and Expressions. ' ' Dying without heirs. " See TyrwhiU v. Deiio- son, 28 Chy. 112, p. 798. 7^7 WILL. 798 " Heirs." See Scott et al. v. Gohi a ai, 4 K. 457, p. Sll. " [n ease of death of my children. " See Drnw ik V. Bumble, 8 A. R. 476, p. 805. ,t ■' Worldly estate." See Toion v Borden, 1 K. 327, p. 803. 4. Period oj Distribution. See Tyrwhitt v. Bewson, 28 Chy. 112, p. 798; Anderson v. 5eZ?, 8 A. R. 531, p. 804. 5. Misdescription in Will. See Re Oallanhan, 8 P. R. 474, p. 667 ; Holtby •V. Wilkinson, 23 Chy. 550, p. 799. 6. Eitate or Interest Taken. (a) Estate Tail. A testator, amongst other devises and bequests, devised as follows : — "Secondly, I bequeath to my son, Robert Little, eighty-aix acres of land t v. Stalker, % 0. R. 78, p. 717. " Vessel to go out in tow." — See' The Provin- cial Ins. Co. of Canada v. Connolly, 5 S. C. E. 258, p. 382. "Voluntary." — See Stewart et al. r, Tremain et al., 3 0. R. 190, p. 299. " Warrant of execution. "— See Macfie v. Hun- ter, 9 P. R. 149, p. 217. " Whether such ships or vessels be at home or abroad at the time of assessment." — See OUy of Halifax v. Kenny, 3 S. C. R. 497, p. 737. " With intent to do grievous bodily harm.' — See Regina v. Boucher, 8 P. R. 20, p. 187. " With or without security." — See O'Brien el al. V. Clarkson, 2 0. R. 525, p. 54. " Wrongful." — See Hopkins v. HopUns et al, 3 O. R. 223, p. 436. WORK AND LABOUR. I. Extras, 820. II. PERrORMANCB, 821. III. Remuneration, 822. I. Extras. The suppliant engaged by contract under seal, dated 4th December, 1872, with the minister of public works, to construct, finish and complete, for a lump sum of $78,000, a deep sea wharf at Richmond station at Halifax, N. S., agreeably to the plans in the engineer's office and specifi- 821 WORK AND LABOUR. 822 cations, and with such directions as should be given by the engineer in charge during the pro- gress of the work. By the 7th clause of the con- tract no extra work could be performed, unless "ordered in writing by the engineer in charge before the execution of the work." By letter, dated 26th August, 1873, the minister of public works authorized the suppliant to make an addi- tion to the wharf by the erection of a superstruc- ture to be used as a coal floor, for the additional sum of $18,400. Further extra work which amounted to $2,781, was performed under another letter from the public works depart- ment. The work was completed and on the final certificate of the government engineer in charge of the works, the sum of $9,681, as the balance due, was paid to the suppliant, who gave the following receipt, dated 30th April, 1875 : " Received from the Intercolonial railway, in fall, for all amounts against the government for works under contract, as follows : ' Eichmond deep water wharf works for storage of coals, work ^or bracing wharf, rebuilding two stone cribs, the sum of $ ." The suppliant sued for extra work, which he alleged was not cov- ered by the payment made on the 30th April, 1875, and also for damages caused to him by de- ficiency in and irregularity of payments. The petition was dismissed with costs ; and a rule nisi for a new trial was subsequently moved for and discharged : — Held, affirming the judgment of the court below, that all the work performed by the suppliant for the government was either contract work within the plans or specifications, or extra work within the meaning of the 7th clause of the contract, and that he was paid in full the contract price, and also the price of all extra work for which he could produce written authority, and that written authority of the en- gineer and the estimate of the value of the work are conditions precedent to the right of the sup- pliant to recover payment for any other extra work. (Henry, J., dissenting.) O'Brien v. 7'he Queen, 4 S. 0. R. 529. Per Ritchie, 0. J., that neither the engineer, nor the clerk of the works nor any subordinate officer in charge of any of the works of the Domi- nion of Canada, have any power or authority, express or implied, under the law to bind the Crown to any contract or expenditure not speci- ally authorized by the express terms of contract duly entered into between the Crown and the contractor according to law, and then only in the specific manner provided for by the express terms of the contract, lb. II. Performance. L. sued N. et aL to recover from them, under specially endorsed writ, the balance of account due under and in pursuance of an agreement under seal providing that " L. was to run accord- ing to his best art and skill a tunnel of 200 feet for the sum of $4 per running foot ; that $150 should be advanced on account of the contract, the balance to be paid on the satisfactory com- pletion of the work." L. made five tunnels, none of which were 200 feet, but claimed he had done . in all 204 feet. In addition to the count on the agreement the plaintiff inserted in his declara- tion the common counts for work and labour : — Held that there was not a sufficient fulfilment of he agreement, and inasmuch as L. had given no particulars nor any evidence under the indebi- tatus counts, the rule absolute of the court be- low, ordering judgment to be entered for the defendants, should be affirmed and the appeal dismissed with costs. Lakin v. Nuttall, 3 8. C. R. 685. Where a contractor for the building of a house made default in carrying on the work, and, in consequence, the owner, acting under a clause in the contract to that effect, dismissed him, and agreed verbally with a pub-contractor, who had been employed by the contractor, that if the sub-contractor would go on and finish the work he, the owner, would pay him : — Held, that the sub -contractor was entitled to a lien for all work done under such agreement as a "contractor," and as to such work he was no longer in the posi- tion of a sub-contractor : — Held, also, that the sub- contractor, acting under such an agreement, was not bound by clauses contained in the origi- nal contract with the dismissed contractor, pro- viding for forfeiture, &c. Petrie v. Hunter et al. ; Quest et al. v. Hunter et al, 2 0. R., Chy. D. 233. See next sub-head. III. Remunetsation. The defendant agreed with the plaintiff's to sink an artesian well at seventy-five cents a foot. After sinking a distance of 160 feet, he met with an impediment, and refused to proceed further : — ^Held, reversing the decision of the County Court, that he was entitled to be paid for the work done, as the evidence did not shew an agreement that he should receive nothing unless he succeeded in finding water. Quaere, whether evidence as to how contracts for artesian wells were usually made in Barrie should have been received. The Barrie Oae Co. v. Sullivan, 5 A R. 110. Held, that the nonproduction of an architect's certificate approving of the work done, though required by the contract with the dismissed con- tractor, as a condition precedent to payment, did not preclude the sub-contractor from recover- ing under the verbal agreement, proWded the work was so done as to morally entitle him to such certificate, following Lewis v. Hoare, 44 L. T. N. S. 66. Petrie v. Hunter et al, Ghtest et al V. Hunter et al, 2 0. R., Chy. D. 233. It was stipulated that twenty per cent, of the contract price should not be payable until thii'ty days after the architect should have accepted the work, and that the balance of the contract price so to be retained should not be payable until all the sub-contractors were fully paid and settled with: — Held, 1. That no trust was thereby created in favour of the sub- contractors as to the sum agreed to be retained ; and the contractor having assigned his interest in the contract to a third party, and the com- mittee having waived their right to insist that the sub-contractors should be paid ; — Held, 2, That the assignee was entitled to receive the twenty per cent, to the exclusion of the sub- contractors. Forlmn v. Lalonde, 27 Chy. 600. As to recovery of work done if expenditure unauthorized by parliament. See Wood v. The Queen, 7 S. C. R. 634, p. 596. 823 WRIT OP ARREST. Certificate of engineer as a conditionprecedent to right of recovery. See labester v. The Queen, 7 S. 0. R. 696, p. 595; Jones y. Tlie Queen, 7 S. 0. R. 570, p. 59-L See McDonald v. Oliver et of., 3 0. R. 310, p. 128. WOUNDING, ^ee Criminal Law. WRITS. I. Of Akrest — See Writ op Arrbsi. II. Capias — See Arrest. III. Of Execution— See Execution. IV. Of Summons— 5ee Practice. 824 v. Nb Exeat— /See Nb Exeat. VI. Quo Warranto — See Municipal Cor- porations. VII. Rbvivoe— 5ee Scire Facias and Re- VIVOE. VIII. Scire Facias— 5ee Scire Facias and Revivor. WRIT OF ARREST. A writ of arrest will not be granted against the purchaser in a suit for specific performance unless it be shewn by affidavit that the vendor's lien is insufficient. Nelson v. Dafoe, 8 P E 332.— Proudfoot. Where, under a writ of arrest a caption takes place, the sheriff is entitled to a bond for double the amount marked upon the writ. Needham v. Needham, 29 Chy. 117. See S. C, p. 328.